text:
    MARYLAND MOTOR CAR INS. CO. v. HAGGARD.
    (No. 1331.)
    (Court of Civil Appeals of Texas. Texarkana.
    May 7, 1914.)
    1. Insurance (§ 603) — Subrogation — Release of Claim bt Insured — Effect.
    Where one procuring insurance on Ms automobile against damage by collision settled with the wrongdoer for the damage to the machine in a collision and executed a release purporting to effect a complete settlement, he could not recover on the policy stipnlating that insurer, on payment of the loss, should be sub-rogated to all right of recovery by insured for the loss, and that the right should be assigned to insurer by insured on receiving payment.
    [Ed. Note. — Por other cases, see Insurance, Cent. Dig. § 1499; Dec. Dig. § 603.]
    2. Insurance (§ 606) — Subrogation — WlAIVEB.
    Where insured against damage to his automobile in a collision offered to assign his claim against the wrongdoer to an attorney for insurer, who refused to take it at the time for want of authority to act, and because reasonable time had not elapsed to make investigations, and immediately afterwards insured filed a claim with the wrongdoer and settled, insurer did not waive his right to subrogation stipulated for in the policy.
    [Ed. Note. — Por other cases, see Insurance, Cent. Dig. §§ 1504-1511, 1514-1516; Dec. Dig. § 606.]
    Error to Tarrant County Court; Chas. T. Prewett, Judge.
    Action by P. A. Haggard against the Maryland Motor Car Insurance Company. There was a judgment for plaintiff, and defendant brings error.
    Reversed and rendered for defendant.
    The plaintiff in error issued a policy of insurance to defendant in error on May 7, 1913, in the sum of $600, insuring a certain automobile against loss by fire or damage by collision with any other automobile or vehicle. On January 1, 1913, while the insurance was in force, a fire engine of the fire department of the city of Pt. Worth collided with defendant in error’s automobile, causing damage to it. Defendant in error brought this suit on the policy to recover $400 as the amount of the damage sustained. The policy contained the following clause:
    “6. If this company shall claim that the damage was caused by the act or neglect of any person or corporation, private or municipal, this company shall, on payment of the loss, be sub-rogated to the extent of such payment to all right of recovery by the insured for the loss resulting therefrom, and such right shall be assigned to this company by the insured on receiving payment.”
    The plaintiff in error pleaded, as a defense, that defendant in error, in total disregard of the above-mentioned clause of the policy, did, in February, 1913, preclude the plaintiff in error from its right of subrogation by executing a full and complete release to the city of Pt. Worth of all damages occasioned by the injury to his automobile, in consideration of the payment of $100. The defendant in error made replication to the alleged defense, admitting that he made claim to the city for items of damage consisting of loss of time in his business occasioned him by being deprived of the immediate use of his automobile, and accepted $100 in payment of same, but alleged that it was not a settlement of the damages to the automobile, and was so understood not to be a settlement of that item of damage as claimed against the insurance company, and that the cause of action on the policy was specially reserved, and that the recitals in the written release of relinquishment of all claims for damages was a mistake. Defendant in error further replied that plaintiff in error waived the right to subrogation.
    It was proven that the defendant in error paid out $264.90 to repair the damage to his automobile. In February, 1913, defendant in error executed a written release to the city of Pt. Worth, reciting that in consideration of the payment of $100 by the city he relinquished and released the city from “all claims of every character that I have or may have by reason of injuries and damages sustained by me on the 1st day of January, 1913, caused by the fire department truck colliding with one Flanders automobile owned by myself, said collision occurring at Fourth and Throckmorton streets in the city of Pt. Worth on January 1, 1913,” and “this release is intended to cover all damages and injuries occasioned or that may arise therefrom directly or indirectly.” In respect to the release defendant in error testified, in substance, that in February, 1913, he filed a claim with the city for items of damages consisting of loss of time in his business, due to the deprivation of use of his automobile occasioned by the tort of the city, and that the city paid him $100 on the claim, and he accepted it. At the time of filing the claim and accepting the money defendant in error did not know, he says, that the policy contained the clause in question, but that he told the city claim agent that he had the policy of insurance and was expecting the insurance company to pay the repair bill and that he did not read the release before signing it. He did not testify that in the settlement he reserved any right to claim damages to the automobile. Mr. Wren, claim adjuster for the city, testified in behalf of defendant in error, in substance, that defendant in error filed a written claim for damages against the city, and that after taking the matter up with the legal department of the city the legal department decided that the city was not legally liable for damages, and therefore the $100 was offered and paid as a settlement and accepted by defendant in error. The adjuster testified that he and defendant in error talked about the insurance at the time, and about whether the settlement would have any effect in a suit, and that he told defendant in error that the insurance company might want to take out the $100 when they paid him. In making the settlement the adjuster said he considered “the city out of it, the whole transaction, at the time we paid Dr. Haggard the $100 and took his release,” and that “the city was out of it now' and all the time.” Neither the adjuster nor the appellee testified that in making the settlement there was reserved any right to make further claim for any item of damage, but the testimony shows an intention to end the matter by the settlement at the time.

      Chapmen, Beckham & Cooper and Theodore Mack, all of Ft. Worth, for plaintiff in error. Dedmon & Potter, of Ft. Worth, for defendant in error.

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

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

   LEVY, J.

(after stating the facts as above). Claiming that the evidence established a breach -by defendant'in error, as pleaded, of the stipulation in the policy relating to sub-rogation, the plaintiff in error requested that a peremptory instruction in its favor be given the jury. The court refused the request, and error, by proper assignments, is predicated thereon. It is quite a well-settled rule that if an insured settles with or releases a wrongdoer from liability for a loss before payment of the loss has been made by the insurance company, the insurance company’s right of subrogation against the wrongdoer is thereby destroyed. Bloomingdale v. Ins. Co. (Sup.) 84 N. Y. Supp. 572; Ins. Co. v. Trust Co., 123 Pa. 523, 16 Atl. 79, 2 L. R. A. 5S6, 10 Am. St. Rep. 546; Sims v. Ins. Co., 101 Wis. 586, 77 N. W. 908; Ins. Co. v. Ry. Co., 63 Tex. 475, 51 Am. Rep. 661; Ins. Co. v. Easton, 73 Tex. 167, 11 S. W. 180, 3 L. R. A. 424. And if the settlement made by defendant in error with the eitg of Ft. Worth had the legal effect to destroy the plaintiff in error’s remedy of subrogation under the policy, then defendant in error thereby discharged the plaintiff in error from its obligation to pay him to the full extent to which he has defeated the plaintiff in error’s remedy of subrogation. Packham v. Ins. Co., 91 Md. 515, 46 Atl. 1066, 50 L. R. A. 828, 80 Am. St. Rep. 461. It appears admittedly that defendant in error filed a claim for specific items of damage occasioned by the tort of the city on January 1, 1913, and that the city denied legal liability for any damages by reason of the injury to the automobile, and that thereupon the city and defendant in error settled the controversy for $100 paid and received. In the settlement it does not appear from the evidence that any claim in favor of the insurance company was reserved or excluded, or that the settlement was not intended to operate as a full release to the city of all damages. In point of fact, the settlement as made does not appear to have been only a partial settlement; nor does it appear that the written release speaks a mistake of the intention of the parties to effectuate a complete settlement. The legal effect of the settlement is, we think, to give a full and complete release to the city of Ft. Worth. The tort by the city was single, causing sundry items of loss, and gave rise to one liability, and the whole cause of action was therefore’merged in the one settlement.

Defendant in error in his • replication asserted waiver by plaintiff in error of the right to subrogation. There is no evidence to show that plaintiff in error agreed to waive the assignment, nor any sufficient evidence on which to base estoppel. Very shortly after the injury, it appears, defendant in error offered to make the assignment to an* attorney, for plaintiff in error, who refused to take it at the time for want of full authority to act for plaintiff in error, and because reasonable time had not elapsed to make investigation of the injury. Immediately afterwards defendant in error filed the claim with the city and settled. Defendant in error by his contract bound himself to make the assignment of his cause of action upon payment by plaintiff in error of the loss. The time when the payment is to be made is not specified. A reasonable time, though, by law would be given thé plaintiff in error to make the payment of loss and call upon defendant in error to make the assignment of his cause of action against the city. And it would become the duty of defendant in error, in order to perform his part of the agreement, to continue in a position to make it legally possible for him to make a legally effective assignment when called upon to do so within a reasonable time by plaintiff in error. Plaintiff in error, therefore, had the right to use a reasonable time from the date of the injury to investigate the accident and loss, and make payment and call for the assignment to it. And refusal of the attorney to take the assignment at the time merely for the reasons given would not operate to estop plaintiff in error. Failing, as defendant in error did, to comply with his contract in the respect in question, and there being no waiver or estoppel on plaintiff in error’s part, the court should, as a matter of law, have directed a verdict for plaintiff in error.

The judgment is reversed and here rendered in favor of plaintiff in error, with costs of the trial court and of this appeal.


source: Caselaw Access Project

author: RASBURY, J.

license: Public Domain

text:
    TEXAS MIDLAND R. R. v. RAY.
    (No. 7134.)
    (Court of Civil Appeals of Texas. Dallas.
    May 2, 1914.
    On Rehearing, June 27, 1914.)
    1. Railroads (§ 484) — Fires — Actions — Jury Question.
    In an action against a railroad company for the firing of plaintiff’s barn, evidence held sufficient to go to the jury.
    [Ed. Note. — For other eases, see Railroads, Cent. Dig. §§ 1740-1746; Dee. Dig. § 484.]
    2. Railroads (§ 484) — Fires—Actions—Evidence— Jury Question. "
    In an action against a railroad company for the negligent firing of plaintiff’s barn, where the petition alleged that all of defendant’s engines were defective and proof to that effect was introduced, such evidence is sufficient to take to the jury the question whether the engine which caused the fire was defective.
    , [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1740-1746; Dec. Dig. § 484.]

      3. Railroads (§ 484) — Fires—Actions—Ju-ey Question.
    In an action against a railroad company for negligently firing plaintiff’s barn, where plaintiff introduced evidence that all of defendant’s engines were defective and defendant introduced evidence that they were properly equipped, the question of defendant’s negligence is for the jury.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1740-1746 ; Dec. Dig. § 484.]
    4. Railroads (§ 481) — Fires — Actions — Evidence.
    In an action for the firing of plaintiff’s barn, where the petition alleged that it could not be determined which engine emitted the spark which caused the fire, but that all of defendant’s engines were defective, evidence that all of defendant’s engines were defective was admissible.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1717-1729; Dec. Dig. § 481.]
    6. Evidence (§ 539%) — Opinion Evidence —Expert Testimony.
    A witness, who had long experience as a railroad man serving in various capacities and who was familiar with defendant’s locomotives, may testify as an expert whether defendant’s locomotive was equipped with proper spark ar-resters.
    [Ed. Note. — For other eases, see Evidence, Cent. Dig. §§ 2350-2352; Dec. Dig. § 539%.]
    6. Exceptions, Bill oe (§ 10) — Qualifications.
    Where the qualifications of a witness as an expert were elicited before he was allowed to testify, it was not error for the court to qualify a bill of exceptions to the admission of his testimony by setting forth the facts upon which the ruling allowing the witness to testify was based.
    [Ed. Note. — For other cases, see Exceptions, Bill of, Cent. Dig. § 11; Dec. Dig. § 10.]
    7. Railroads (§ 480) — Fires — Actions— Burden of Proof.
    In an action for the firing of plaintiff’s barn from a spark from defendant’s engine, plaintiff has the burden of proof, and the refusal of a charge so stating is error.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1709-1716, 1733; Dec. Dig. § 480.]
    On Rehearing.
    8. Evidence (§ 91) — Burden of Proof.
    Generally the burden of proof lies upon the party asserting a fact essential to his right of action or defense and put in issue by the pleadings of his adversary.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 113; Dee. Dig. § '91.]
    9. Appeal and Error (§ 994) — Weight of Evidence — Review .
    The jury are the exclusive judges of the credibility of the .witnesses and of the weight of their testimony, and their conclusion is final.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3901-3906; Dec. Dig. § 994.]
    10. Appeal and Error (§ 1067) — Review-Harmless Error.
    In an action against a railroad company for the negligent firing of plaintiff’s barn, where the issues were whether the fire originated from sparks from defendant’s engines and whether the engines were equipped with the most approved spark arresters and carefully operated, and there was a sharp conflict of evidence .on the last issue, the refusal of a requested charge that the burden was on plaintiff cannot be held harmless under Court Rule 62a (149 S. W. x), prohibiting reversals for errors not affecting the merits, for it might still have influenced the jury.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4229; Dec. Dig. § 1067.]
    Appeal from Kaufman County Court; J. A. Cooley, Judge.
    Action by S. T. Ray against the Texas Midland Railroad. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    Henry C. Coke, of Dallas, and C. M. Crumbaugh and Dasbiell & Coon, of Terrell, for appellant Ed R. Bumpass, of Terrell, for appellee.

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

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

   RASBURY, J.

Appellee sued appellant in the court below "for $674.75, the value of certain farm produce and harness stored in a barn adjacent to appellant’s railroad, and alleged to have been destroyed by fire set out by sparks from one. of appellant’s engines while passing the barn. The petition alleged that at or about 10 o’clock of the morning of the fire locomotives of appellant were operating trains at the point where the barn was situated from, which sparks of fire escaped, and, while it was not known which locomotive emitted the sparks or cinders which set the fire, that any of them could have done so, and that the sparks so emitted were due to the fact that the locomotives of appellant were improperly and defectively constructed, old and worn out, and carelessly and negligently operated by those in charge of same, and that the cinders or sparks were further induced to escape by reason of the fact that the spark arresters, screens, and equipment on all appellant’s engines were in bad condition and out of repair at the time the fire was set out. Following certain special exceptions, appellant met the allegations of the petition by the general denial and the special plea that the fire could only have been set out by engine 113 and engine 106, both of which were properly equipped with the best appliances for the prevention of the escape of sparks, and that its engines were carefully and skillfully operated at the time alleged by appellee. The fire occurred at a point about midway between Terrell and Kaufman, between the hours of 10 and 11 o’clock a. m. At the point indicated appellant maintains on the west side of its main track a switch in length about 1,800 feet. On the east side of the main track and opposite the north end of the switch and about 210 feet distant therefrom is the barn which contained ap-pellee’s property. On the day of the fire a strong wind was blowing from the west, and several of the witnesses testified that the wind carried sparks into appellee’s garden, which was in the rear of the barn and further away from appellant’s railroad. The property was destroyed by the fire and wa* of tlie value placed thereon by the jury. A number of trains passed the switch in the forenoon of the day of the fire, one, a southbound freight, passed about 7 :45, another, a south-bound local passenger, about 8:15, another south-bound passenger about 10:16, and a north-bound passenger about 8:20. Appellant concedes* the passing of the trains above named as shown by the record kept by its train dispatcher, but proved by its witnesses that if other trains had passed its records would have shown it. By several witnesses appellee proved that in addition to the trains above enumerated another train, a freight, reached the switch ahead of the passenger which arrived at 10:16 (according to some of the witnesses about 10:30), and backed in on the switch from the south end to permit the passenger to pass. According to the witnesses this train did considerable switching and the barn was discovered on fire shortly after it departed. Any other facts necessary to refer to will be recited under the particular assignments calling therefor. There was a jury trial, to whom the court submitted the case upon special issues. Upon the answers of the jury to the special issues the court entered judgment for appellee for $674.75, from which judgment this appeal is taken.

The first assignment reviews the court’s refusal to direct a peremptory verdict for appellant on the ground that the evidence conclusively shows that the fire could not have been caused by appellant’s engines. We think the assignment should be overruled, since the evidence is ample to sustain the finding of the jury that the fire was set by sparks from one of appellant’s engines. The evidence is practically undisputed that quantities of sparks were deposited in appellee’s garden in the rear of his barn on the day of the fire, and that the wind was blowing strong from the west, which would carry the sparks in the direction of the barn. The south-bound passenger passed the barn between 10 and 10:30 o’clock. The freight train was on the switch prior to the .passing of the passenger and remained there, according to some of the witnesses, until after 10:30. Other trains passed between 7:45 and 8:25, and we could not say that sparks from those trains did not set the fire. But if we believed that the fire could not have originated from any of the trains conceded by appellant to have passed appellee’s bar, we would not be at liberty to disturb the verdict on that ground, since appellee’s witnesses all testified to the presence of the freight train which could have set the fire which would support the verdict, even though appellant’s witnesses denied the passing of such train. Such testimony raised an issue of fact, which it was the duty of the jury to reconcile, not ours.

Under the first assignment, it is also urged that the court should have directed verdict for appellant, because appellee failed to show that the particular engine which set the fire was defective as alleged. The petition alleged that appellee could not say which engine actually set the fire, but that all of appellant’s engines were defective, old, out of repair, and worn out, and the only evidence adduced in reference to such issue was proof tending to show that appellant's entire equipment of engines was in the condition alleged. Such testimony was admissible for whatever value the jury might place upon it, under the allegations of the petition in the absence of any testimony showing that any specific engine threw the sparks, since proof that all of the engines were defective would include a portion thereof.

Nor. should said peremptory instruction have been given when appellant introduced evidence to the effect that all its engines which could have caused the fire were in good condition, properly equipped with the most approved spark arresters, and carefully operated. When a plaintiff offers testimony tending to show that a defendant railroad company’s engines are not equipped with the most approved spark arresters, the defendant does not by offering testimony tending to show that the engines are equipped with the most approved spark arresters defeat a recovery if the jury adopts the testimony of plaintiff as true, buch proof on the part of the defendant railway company only rebuts the presumption of negligence raised by the plaintiff’s testimony. Upon such rebuttal all the evidence is entitled to go to the jury; plaintiff being charged, as in all cases, with the burden of proof cast'by law. Trinity & B. V. Ry. Co. c. Gregory, 142 S. W. 656.

We think the testimony of the witness Trawick, complained of by appellant under its first assignment of error, to the effect that all of appellant’s engines were old, out of repair, etc., was admissible under a similar general allegation, since such allegation and the evidence adduced thereunder would apply to whichever of the engines in fact set out the fire.

Nor do we think, as urged by appellant under said assignment, that Trawick’s evidence should have been excluded on the ground that he was not an expert. The trial court was warranted in permitting his testimony to go to the jury with reference to the condition of the engines, their state of repair, and the condition of the spark ar-resters. He testified to a long experience in the railway service, having served as section hand, hostler, machinist, fireman in the car départment in the roundhouse, and all with appellant, and testified that he was familiar as well with the use and operation of spark arresters. Having thus qualified himself, his testimony was properly referred to the jury for their consideration as to its weight and credibility.

Nor did the court err in qualifying the bill as contended by appellant. The trial court had the right, and it was his duty, to cause the record to show the facts upon which his ruling was based. The record shows that the witness did testify to the facts which would admit him to testify as an expert and it was proper for the court to sustain his action by a recital of same.

The fourteenth assignment of error complains of the refusal of the court to allow appellant’s requested charge, which told the jury that the burden was on appellee to establish his ease by a preponderance of the evidence. As we have said, the case was submitted upon special issues, and at no place in the general instruction in the main charge did the court charge the jury as to the burden of proof, and for that reason appellant’s special charge should have been given. But we conclude that the assignment should be overruled under the rule promulgated by the Supreme Court directing that no judgment shall be reversed on appeal because of error of law committed by the trial court “unless the appellate court shall be of opinion that the error complained of amounted to such i denial of the rights of the appellant as was reasonably calculated to cause and probably did cause the rendition of an improper Kudgment in the case,” etc. We reach such conclusion because we believe that such charge would not have produced a different result and did not cause the rendition of an improper judgment. It is undisputed by appellant’s witnesses that the fire resulted from cinders from appellant’s trains, except of course that it is argued that, appellant’s records failing to show any record of the freight train which probably set the fire, no reliance may be placed upon the evidence of the witnesses testifying to that fact. It is also undisputed that the amount recovered represents the true value of the property destroyed. This leaves as a disputed issue only the question of the condition of appellant’s equipment, and its operation at the time the fire was set. We have read all the testimony bearing on that issue and conclude that rule 62a (149 S. W. x) fairly applies. We do not wish to be understood as holding that the refusal of trial courts to instruct on the burden ease by law on plaintiffs \nay be considered harmless error as a rule, but that in most cases it would be harmful error, and that the better rule is to charge on such issue when the burden is upon the plaintiff.

There are a number of other assignments which we have not considered. They either involve issues determined adversely to appellant by our conclusions under the first assignment of error, or refer to the refusal'of the court to give certain charges, which limited the'appellee’s right to recover to a showing that the fire was set only by the engines shown by appellant’s witnesses to have passed the point of fire on the day it was set out, and for these reasons same are overruled.

The judgment is affirmed.

On Rehearing.

Upon further consideration of this appeal we have concluded that we erred in holding that the refusal of the court below to instruct the jury that the burden was upon appellee to establish his case by a preponderance .of the evidence was, under rule 62a, not reversible error. The general rule is that the burden of proof lies on the party asserting a fact essential to his right of action or defense and put in issue by the pleadings of the adverse party. As stated in our original opinion, the controlling issues upon trial were: Did the fire originate from cinders ejected from appellant’s engines, and, if so, were the engines in good condition and equipped with the most approved spark arresters carefully operated? As to the first issue we yet think the refusal to instruct upon the burden of proof did not cause the rendition of an improper judgment, since there was in substance no testimony tending to contradict that offered by appellee showing the origin of the fire to be from sparks thrown from appellant’s engines. A careful examination of the evidence on the other issues, however, develops a sharp conflict upon the issue of the condition of the engines of appellant, the character of the spark arresters, and the operation of the engines at the time the fire was set out; but in view of another trial we omit, for obvious reasons, comparative discussion of the evidence, contenting ourselves with the statement that there was a sharp and decided conflict.

We now conclude the charge should have been given for the reason that we believe that had the charge been allowed it might have produced a different result. The jury are the exclusive judges of the credibility of the witnesses and of the weight to be given to their testimony, and the courts have repeatedly held that their conclusions in that respect are final. Accordingly, upon a closely contested issue where the evidence is sharply conflicting, a charge upon the question of the burden of proof is often necessarily decisive of the issues and is so' closely related to and so much a part of the function to be exercised by the jury that it is nearly impossible for judges of appellate courts, who do not hear the witnesses nor observe their manner of testifying, to fairly and intelligently approximate even what might have been the result had the charge been given. In illustration of the importance of such a charge it is said in Highland v. Houston, E. & W. T. Ry. Co., 65 S. W. 649,. similar by analogy with the instant case:

“But on the issue of proper equipment, proper repair, or careful handling, the burden is still upon plaintiff, so that, if the proof upon these issues should be evenly balanced, the verdict should be for defendant” — cfiting Mex. Cen. Ry. Co. v. Lauricella, 87 Tex. 279, 28 S. W. 277, 47 Am. St. Rep. 103.

And as illustrating the fact that the application of rule 62a in such eases would in ef-feet be invading tbe prerogative of tbe jury, and as showing tbe force of tbe rule and tbe contemplated influence tbe rule exercised in that case, we cite Clark v. Hills, 67 Tex. 141, 2 S. W. 356. Tbe jury in returning verdict against plaintiff stated they did so in deference to tbe court’s charge that tbe burden of proof was on plaintiff, since they were unable to agree upon any other basis, because of tbe sharp conflict in tbe evidence.

Believing our original order affirming the judgment was, for the reasons stated, erroneous, we now sustain that portion of tbe motion for rehearing that ■ complains ' of the refusal of tbe trial court to instruct on the burden of proof and reverse and remand the cause on that issue alone.

Reversed and remanded.


author: HODGES, J.

text:
    TEXAS & P. RY. CO. et al. v. HARDIN.
    (No. 1319.)
    (Court of Civil Appeals of Texas. Texarkana.
    June 11, 1914.)
    1. Eminent Domain (§ 146) — Construction of Viaduct — Action by Property Owner-Defense.
    In a property owner’s action against a railroad company for special damages from the construction of a viaduct in front of his property, it is no defense that the viaduct is beneficial to the public.
    [Ed. Note. — Eor other cases, see Eminent Domain, Cent. Dig. §§ 390-393; Dec. Dig. § 146.]
    2. Appeal and Error (§ 1053) — Cure of Error— Admission of Evidence — Instructions.
    In a property owner’s action for damages from the construction of a viaduct, error, if any, in admitting evidence that, after completion of the viaduct, a street car line was changed so as not to pass in front of plaintiff’s property was cured by an instruction that no change in such line could be considered as an element of plaintiff’s damages.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4178-4184; Dec. Dig. § 1053.]
    Appeal from District Court, Bowie County; W. T. Armistead, Judge.
    Action by W. C. Hardin against the Texas & Pacific Railway Company and others. From a judgment for plaintiff, defendants appeal.
    Affirmed.
    Glass, Estes, King & Burford and Rodgers & Dorough, all of Texarkana, for appellants. Mahaffey, Thomas & Hughes, of Texarkana, for appellee.

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

   HODGES, J.

The appellee, W. C. Hardin, instituted this suit against the Texas & Pacific Railway Company, the Texarkana & Ft. Smith Railway Company, and the St. Louis Southwestern -Railway Company of Texas to recover damages resulting from the construction of a viaduct in front of his property. At the time of, and prior to, the institution of this suit the appellee was the owner of a lot 100 by 140 feet situated on the north side of Broad street, in the city of Texarkana, Tex., and immediately west of Oak street. Broad street runs practically east and west, and is about 100 feet wide. In the early part of the year of 1912 the three railway companies named as parties defendant constructed a viaduct extending from a point on Broad street in front of the appellee’s property to the south, passing over and across a large number of railway tracks owned by them. The north end of the viaduct rested in the center of Broad street, and ran west for some distance, and then turned south. This course seems to have been considered necessary for the purpose of obtaining a proper'elevation over the nearest railway track. The viaduct occupied a space in Broad street about 20 feet wide, and to that extent reduced the space available to the traveling public in passing along Broad street to a point west of the appellee’s property. Prior to the building of this viaduct the appellee had built several houses on his lot of land, fronting on Broad street. These were intended to be rented for ordinary commercial purposes. It is claimed that the construction of the viaduct in the center of the street in front of this property, and the consequent obstruction which it interposed to travel,' caused a depreciation of the market value of the appellee’s property to the extent of $10,000.

The railway companies filed a joint answer, and, among other defenses, asked that the-city of Texarkana, Tex., be made a party, and that in the event judgment was rendered against them for damages they have judgment for the same amount over against the city. As a basis for this recovery they set up a contract by which the city of Texarkana, Tex., had obligated itself, in consideration of the building of the viaduct, to protect the railway companies from all claims for damages by abutting property owners.

The city of Texarkana answered denying that the property of the plaintiff in the suit was injured by reason of the construction of the viaduct. It interposed no defense to the cross-action of the railway companies.

A trial in the district, court resulted in a verdict and judgment in favor of th^ appellee against the railway companies for the sum of $5,000, and in favor of the railway companies against the city of Texarkana for the same-amount. The railway companies and the city of Texarkana appealed, and make a common defense in this court. While they filed separate briefs, the grounds upon which they seek a reversal of the judgment are substantially the same. The city makes no contention on appeal that it is not bound by the terms of the contract of indemnity before referred to.

The first group of assigned errors attack in different forms the sufficiency of the evidence to support the judgment rendered in favor of the appellee. The testimony as to whether or not the building of the viaduct caused a depreciation in the market value of the property in question was conflicting, but the jury resolved that issue in favor of the appellee, and there is no sufficient reason assigned for disturbing that finding.

It is immaterial how important to the public the building of this viaduct may have been; that fact is no defense against the claim for damages by a private individual who has sustained special injury by reason of its construction. Powell v. Ry. Co., 104 Tex. 219, 135 S. W. 1153, 46 L. R. A. (N. S.) 615.

It is complained that the court erred in admitting testimony of certain witnesses tending to show that prior to the erection of the viaduct in Broad street in front of the appellee’s property the street car line had extended down that street south of the property in controversy, and that after the viaduct was completed the car line was changed so that it turned north, and did not run in front of the appellee’s property as before. Whatever error there may have been in the admission of such testimony was cured by a special charge given by the court directing the jury not to consider any change in the street car line as an element of damages should they find for the plaintiff.

It is unnecessary to discuss the remaining assignments of error in detail. All of them have been considered, but none of them show any reversible error.

The judgment will therefore be affirmed.


author: LEVY, J,

text:
    KNIGHT v. SIMONS et al.
    (No. 1334.)
    (Court of Civil Appeals of Texas. Texarkana.
    May 7, 1914.)
    1. Appeal and Errob (§ 770) —Briefs—Piling.
    Where plaintiff in error did not comply with Rev. St. 1911, art. 2115, and district court rule 102 (142 S. W. xxiv), requiring the filing of briefs in the court below not less than five days before the time of filing the transcript in the Court of Appeals, the briefs must be stricken.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3104, 3106, 3107; Dec. Dig. § 770.]
    2. Appeal and Ebeob (§ 770) — Beiefs—Ne-cessity.
    Where briefs of the plaintiff in error were stricken because not filed in time, only fundamental errors can be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3104, 3106, 3107; Dec. Dig. § 770.]
    Error from Tarrant County Court; Chas. T. Prewett, Judge.
    Action by J. A. Simons, Jr., and others against L. A. Knight. There was a judgment for plaintiffs, and defendant brings error.
    Affirmed.
    Wm. J. Berne, of Ft. Worth, for plaintiff in error. Q. T. Moreland, of Ft. Worth, for defendants in error. i I

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

   LEVY, J,

The suit was by defendant in error, Simons, to recover damages for breach by plaintiff in error of a contract to sell and deliver 25 cars of hay. Plaintiff in error delivered 6 cars of hay, but refused to deliver the remaining 19 cars. There was a material advance of the market price of hay of $2 a ton over the price provided for by the contract at the time of the breach. Plaintiff in error’s defense to the suit was that the contract provided that, if the contractee failed to pay any of his drafts drawn for hay shipped, then plaintiff in error had the right to terminate the contract. The evidence does not show, in point of fact, a breach of the terms of the contract by defendants in error. The evidence does show, in point of fact, a mere delay in the payment of the first drafts by defendants in error, proximately due to the fault of plaintiff in error, through his authorized agent, in the manner and mode of shipment of the hay and forwarding the drafts for collection and payment. There was a trial to a jury, and judgment was rendered for defendant in error, Simons, for the difference between the contract price of the hay and the market price at time of breach of the contract.

Defendants in error have, prior to the submission of the case, filed a motion to strike out plaintiff in error’s brief upon the grounds that it had not been filed in the court below and notice given as required by statute, and was filed in this court, without agreement, at a time too late to enable defendant in error before submission of the case to make and file his brief. Plaintiff in error replies to the motion to strike out the brief, but does not show a compliance with the statute and rules with reference to preparing and filing briefs, nor any agreement to waive these requirements. The motion and reply were carried with the case for ruling. There being no compliance with the statute (article 2115) and the rule (102 of the district court [142 S. W. xxiv]) with respect to filing and service of briefs, and there being no agreement of counsel to waive- such requirements and file briefs in this court at the late date here done, it is not believed that we would be warranted in denying the motion to strike out the brief. As the briefs are stricken out, this leaves us to consider fundamental errors; and, there appearing no fundamental errors, the judgment must be affirmed.


author: WILLSON, O. J.

text:
    HOLT v. LOVE.
    (No. 1330.)
    (Court of Civil Appeals of Texas. Texarkana.
    May 14, 1914.)
    1. Judgment (§ 456) — Partition—Vacation —Rights of Puechaser.
    i Where a judgment in partition with order of sale was at most only voidable and must be treated as valid until set aside in a proceeding I commenced for that purpose, a party entitled to sue to set aside the judgment and recover an interest in the real estate must sue therefor before the running of limitations barring an action to set aside the judgment.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 863-S66; Dec. Dig. § 456.]
    2. Limitation or Actions (§ 39) — Vacation or Judgment.
    An action to set aside a judgment in partition, brought by an individual interested in the real estate more than four years after attaining full age, is barred by the four years’ statute of limitations, where the judgment as to the infant was at most voidable.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 172, 190-211; Dec. Dig. § 39.]
    Appeal from District Court, Tarrant County; Jas. W. Swayne, Judge.
    Action by Emma Love against W. H. Holt. From a judgment for plaintiff, defendant appeals.
    Reversed and rendered.
    A report showing the disposition of this cause made on a former appeal thereof will be found in 131 S. W. 857.
    The land in controversy is 80 acres of the Isaac Caradine survey of 160 acres in Tar-rant county. Said 80 acres was conveyed to E. Wl Chism by a deed dated March 13, 1882. At that time said E. W. Chism and Mahaley Jane Chism were husband and wife. Ma-haley Jane Chism died in September, 1888, leaving her husband and two children, to wit, appellee and Mrs. Ella Taylor, surviving her. E. W. Chism married again in November, 1888, and died in July, 1889, leaving his last wife, ten children by a marriage he contracted before he married Mahaley Jane Chism, and appellee and Mrs. Taylor, his children by her, surviving him. During the lifetime of Mahaley Jane Chism, to wit, on March 14, 1884, Isaac Caradine and others commenced a suit against E. W. Chism and others than said Mahaley Jane Chism to recover the said Isaac Caradine survey of 160 acres. In his answer to that suit E. W. Chism disclaimed as to all the survey except the 80 acres in controversy here, and as to that pleaded not guilty and the statute of limitations of five and ten years. The suit was pending at the date of his death. After his death, to wit, on August 25, 1893, the plaintiffs therein by an amended petition made E. W. Chism’s last wife, appellee, Mrs. Taylor and others, children and grandchildren of his first marriage, parties defendant. January 2, 1896, the suit was disposed of by a judgment by agreement of the parties, which determined that Mrs. M. A. Sharp owned an undivided % interest in the 80 acres, that appellee owned an undivided 2/39 interest in same, and that other parties to the suit owned the remaining undivided interest in the land. The court at the time he rendered the judgment directed a partition of the land to be made, and appointed commissioners to make it. The commissioners having reported that a “fair and equitable” partition thereof could not be made, the court ordered the land sold and the proceeds of the sale distributed among the owners thereof in the proportion he had determined their respective interests to be. At a sale of the 80 acres made as directed by the court, appellant was the purchaser thereof for the sum of $500. This sale was confirmed by an order of the court; and after-wards the sheriff, as directed by the order, by a deed dated September 21, 1897, conveyed the land to appellant as such purchaser. This suit was brought by appellee against appellant. The pleadings are voluminous. The petition contained three counts. In the first of the three counts the allegations were those usually made by a plaintiff in a suit of trespass to try title. In the second count appel-lee alleged, among other things, that the land was the separate property of her mother; that appellant’s claim of title thereto was under the deed to him from the sheriff, mentioned above; that the deed was based on the judgment referred to above; that said judgment was void as to her because she was a minor and without a guardian at the time it was rendered; that citation therein was never served on her; that she never knew anything about the suit until the latter part of 1906; and that appellant knew the facts recited at the time he purchased. She prayed that the judgment be canceled and for general relief. In the third count appellee alleged that in the administration of her father’s estate the land had been set apart to her as a homestead, and alleged facts in regard thereto which, she claimed, entitled her to recover the land. Appellant in his answer denied the truth of the allegations in the petition, and among other things pleaded not guilty, the statute of limitations of three and five years as against appellee’s claim of a right to recover the land, the statute of limitations of four years as against her claim of a right to set aside the judgment in the Caradine suit, set up the judgment in that suit, the sale thereunder, his purchase at the sale, the confirmation thereof by the court, and the deed made to him by the sheriff, and alleged that he was an innocent purchaser for value of the land at that sale, without notice of any of the facts relied upon by appellee to avoid it, and without notice of the fact that appel-lee owned or claimed any interest in the land other than that shown by the judgment to be in her. In a supplemental petition appellee alleged, among other things, that the pleadings in the Caradine suit were not sufficient as a basis for the judgment rendered therein, that that judgment was procured by fraud, that the price paid by Holt as the purchaser at the sale thereunder was inadequate, and other matters which, she alleged, were sufficient to charge appellant with notice of her rights.
    The cause was submitted to the jury upon 31 special issues which the trial court thought were raised by the pleadings and the evidence. Among findings not material to the question which, on the view we take of it, is decisive of the appeal, are these: (1) That appellee was born March 13, 1881. (2) That the deed to appellant from the sheriff was duly recorded September 21, 1897. (3) That appellant in person or by tenants, claiming it as his own, occupied and used the land continuously from January 1, 1898, to the date of the trial, to wit, July 3, 1913. (4) That appellant paid all taxes assessed against the land after he purchased same to the date of the trial.
    The judgment was in favor of appellee for an undivided one-third interest in the land, and for $200 as the part she was entitled to of sums received by appellant as rents.
    Orrick & Terrell, of Ft. Worth, for appellant. M. B. Harris, of Ft. Worth, for appellee.

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

   WILLSON, O. J.

(after stating the facts as above). In his pleadings appellant set up the statute of limitations of five years as a bar to the right of appellee to maintain a suit to recover the land, and the statute of limitations of four years as a bar to her right to maintain a suit to set aside the judgment in the Oaradine suit in so far as it affected her title to the land or an interest in it. The sheriff’s deed to appellant as the purchaser at the sale of the land, made under the judgment referred to, was duly recorded September 21, 1897. Appellant took actual possession of the land on January 1, 1898, and thereafterwards until the date of the institution of this suit, to wit, January 21, 1907, remained in possession thereof, paying all taxes assessed against it during that time. Appellee did not marry during her minority. The jury found, and their finding is not attacked by any assignment in appellant’s brief, that appellee was born March 13, 1881. According to this finding appellee did not reach the age of 21 years until March 13, 1902. It appeared therefore that at the time she commenced her suit the statute had been in operation against her for a longer period than four years and for a shorter period than five years, and therefore that her right to maintain a suit to annul the judgment in the Oaradine suit was barred, and that her right to maintain a suit to recover the land was not barred by the statute.

Appellant insists that as a prerequisite to a recovery by appellee of the land, or any part of it, it was necessary that the judgment referred to should first be set aside, and that, as it could not be so set aside because appellee’s right to that relief was barred by the statute, the court should not have rendered judgment in her favor for any of the land nor for any sum of money as rents she was entitled to. We think the contention must be sustained.

It did not affirmatively appear from the judgment or from any of the papers constituting the record of the Oaradine suit that the judgment was void. On the contrary, it appeared that the court had jurisdiction of the subject-matter of the suit, and, from a citation and the return 'thereon forming a part of the record of that cause, it appeared that the court had acquired jurisdiction of the person of appellee. It was therefore held, on the former appeal, and the ruling is adhered to, that the judgment at most was only voidable and should be treated as valid until set aside in a proceeding commenced and prosecuted for that purpose. It was also held on that appeal, and we are still of that opinion, that appellee’s suit, in one of its aspects, was that kind of a proceeding.

As the judgment must be treated as valid until annulled, and as its effect so long as it is in force is, with the sale made under it, to show that appellant, and not appellee, is the owner of the interest she claims in the land, it follows that appellee must have established a right to have it vacated before she was entitled to recover the land. As the statute of limitations of four years had barred an action by. her for that purpose at the time she commenced her suit, it also follows that she was not entitled to recover the land, or to any relief, and therefore that the court erred in rendering judgment in her favor as he did.

In reply to appellant’s contention appellee insists that “a suit,” quoting from her brief, “to recover land is not affected by four years’ limitation, notwithstanding plaintiff may plead and prove facts which show a judgment as the basis of a sheriff’s deed in partition sale, it is not binding on plaintiff, but such suits are governed by the statutes regulating limitation for the recovery of land.”

As supporting her contention; appellee cites the opinion of this court on the former appeal of this cause, reported in 131 S. W. 857; Hoffman v. Buchanan (Civ. App.) 123 S. W. 171; Stafford v. Stafford, 96 Tex. 106, 70 S. W. 75; and Rutherford v. Carr, 99 Tex. 101, 87 S. W. 815.

The question was not made on said former appeal, and therefore it was neither considered nor determined. Nor was the question, nor one like it, determined in either Hoffman v. Buchanan or Stafford v. Stafford.

In Rutherford v. Carr the owner of a judgment was the purchaser at a sale of land levied on as the property of the judgment debtor by virtue of an execution issued on the judgment, and as such purchaser sued the vendee of the judgment debtor in trespass to try title. Said vendee in his answer to the suit pleaded his title, setting up the deed of the judgment debtor purporting to convey the land. In a supplemental petition the plaintiff alleged facts showing the deed so set up to be fraudulent and void as to him, be'cause made, within the defendant’s knowledge, for the purpose of hindering, delaying, and defrauding his (the judgment debtor’s) creditors, and especially plaintiff, who was one of his creditors. The court sustained an exception to the supplemental petition, on the ground that it appeared therefrom that the deed charged to be fraudulent “was made, delivered, and recorded more than four years before the institution of this suit, so that the right to set the deed aside for fraud was barred by the statute of limitation of four years.” The court held that the suit was not to cancel the deed, but to recover the land, and that the statute of limitation of four years did not apply to it. While that case as pleaded is different from the' one before us in other respects, it is radically so in that there it was not indispensable to the exercise by the plaintiff of his right to recover the land that he should first have the deed made by the judgment debtor annulled, while in this case it was indispensable to the exercise by appellee of her right to recover the land that she should first have the judgment annulled. The distinction pointed out is based, it seems,* on considerations of public policy, which do not require that a deed should be treated as valid until canceled by a suit brought for the purpose, but do require that a judgment not void for matter appearing on its face or in the papers constituting the record of the cause in which it was rendered shall be treated as valid until it is set aside in a proceeding directly attacking it. Crawford v. McDonald, 88 Tex. 626, 83 S. W. 325; Schneider v. Sellers, 25 Tex. Civ. App. 226, 61 S. W. 541.

It follows from what has been said that we are of the opinion the judgment should be reversed and that judgment should be rendered that appellee take nothing by her suit against appellant, and it will be so ordered.


author: HARPER, C. J. HIGGINS, J.

text:
    TRIMBLE v. TUCKER.
    (No. 339.)
    (Court of Civil Appeals of Texas. El Paso.
    July 2, 1914.)
    1. Appeal and Error (§ 934) — Questions Review able — Presumptions.
    The presumption is in favor of the regularity of the judgment appealed from, and where the court on appeal cannot determine whether the party complaining is entitled to a credit, or, if entitled thereto, whether he has not received a credit, the judgment will not be disturbed on the theory of a disallowance of the credit.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3777-3781, 37S2; Dec. Dig. § 934.]
    2. Sales (§ 233) — Rights ox Original and Subsequent Buyer prom Same Seller.
    Where, in an action by the original buyer of an automobile against a subsequent buyer from the same seller, who had remained in possession after the first sale, there was no evidence that the original buyer’s title was questioned in a suit in which he was not a party, or that he was liable to the subsequent buyer for any money he might pay in settlement of the action, evidence of payment by the subsequent buyer was inadmissible.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 653-656; Dec. Dig. § 233.]
    3. Appeal and Error (§ 171) — Questions Reviewable —Theory ox Case in Trial Court.
    Where the pleadings in an action for the title and possession of goods showed that the parties were adverse claimants, and the jury found that plaintiff was the sole owner, subject to the payment of a part of the purchase price, refusal to charge that the parties were tenants in common, and that one tenant in common could not sue his cotenant for any rent of the common property, was not erroneous.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 1053-1063, 1066, 1067, 1161-1165; Dec. Dig. § 171.]
    Appeal from Harris County Court; Clark C. Wren, Judge.
    Action by W. W. Tucker against E. G. Trimble. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Harris & Harris, of Houston, for appellant. Heidingsfelders, of Houston, for appellee.

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

   HARPER, C. J.

Appellee, Tucker, brought this suit against E. G. Trimble, appellant, to recover the title and possession of an automobile. Judgment for plaintiff for automobile and $75 damages.

From the statement in appellant’s brief, we glean the facts pleaded to be as follows (ap-pellee having failed to file brief under rules 40 and 41 [142 S. W. xiv] appellant’s statement is considered acquiesced in): The ap-pellee purchased the automobile in question from B. P. Bagby, September 14, 1911, for a consideration of $500, $275 cash, leaving $225 due. September 25, 1911, Bagby, being in possession of the machine, sold it to Trimble (appellant) for $450 cash, and executed bill of sale in writing with general warranty clause. On October 6, 1911, appellee having found Trimble in possession of it, after demand, filed this suit, alleging the facts as above stated as to the terms of his purchase, and offered to pay the balance due $225 to whomsoever the court might hold to be entitled to it, and prayed for title and possession of the automobile, and further prayed for its reasonable rental value during the time he should be deprived of its use. The defendant answered: (a) That Tucker authorized Bag-by to sell the automobile, and that he had purchased the car in good faith, without notice, for a valuable consideration, to wit, $450 cash; (b) that at the time Trimble purchased the machine there was a lien on it in favor of one Manning for $100, which he paid off and was thereby subrogated to the rights of Manning; (c) that at the time Trim-ble purchased the machine there was a suit pending in Harris county (McClellan v. Bag-by), involving the title to the machine, which defendant Trimble settled by paying $75, and that this constitutes a prior lien to any claim by Tucker; (d) that at the time Trimble purchased the machine Tucker still owed Bagby $225, which is now properly due to defendant Trimble.

Appellant’s first assignment charges that the court erred in refusing the following special charge:

“If you believe from the evidence that B. P. Bagby never was authorized by the plaintiff, W. W. Tucker, to sell said automobile, which is the subject-matter of this suit, but if you also believe, from the evidence that at the time defendant Trimble purchased said automobile from Bagby there was an outstanding lien on said automobile in favor of W. S. Manning for a balance due the said Manning of $100, and if you further believe from the evidence that defendant Trimble paid to the said Manning on account of said lien $100, then you are instructed that if you find for plaintiff, Tucker, as to the title of the auto, you should at the same time find for defendant, Trimble, to the extent of $100 paid by him to Manning and for a foreclosure of the lien on said automobile.”

The entire statement, copied from brief is as follows:

“In the main charge given by the court, this issue was disposed of, as follows: ‘If you find the plaintiff is entitled to recover the title and possession of said automobile, you will then inquire whether or not you believe from the evidence that the plaintiff at any time prior to the 14th day of December, 1911, offered to pay to the defendant the balance due by him to Bagby on the car less the $100 lien to Manning' The Manning mortgage is fully, set out in the statement of facts (pages 13 and 14), and defendant, Trimble, testified that he sent the sum of money due Mr. Manning and obtained said chattel mortgage as evidence of said payment, and the chattel mortgage is dated July 1, 1911, or two months before plaintiff Tucker acquired any interest in the automobile.”

The portion of the court’s charge in the above statements, as presented, is scarcely intelligible, but if it conveys any meaning, it is that the question as to whether or not there was a valid and' subsisting lien on the machine in favor of Manning was submitted to the jury. And there is nothing in this statement, nor upon the pages of the statement of facts referred to therein, to show that the verdict of the jury and judgment of the court as entered did not give defendant proper credit for any money paid. In fact the statement does not clearly show that the mortgage was a valid, subsisting lien upon the machine when the money was paid to Manning by defendant. Of course, if it was not, then defendant acquired no lien or right of action against Tucker by paying money to Manning. The object of a brief is to show the appellate court wherein the appellant’s rights have not been properly adjudicated by the trial court, for the presumption is always in favor of the regularity of the judgment as entered, and from the statement above quoted, this court cannot determine whether the defendant was entitled to a credit of $100 paid for the mortgage, nor if he was entitled to it, whether or not he in fact did not receive the credit in the verdict of the jury and judgment of the court rendered thereon. The assignment is therefore overruled.

In his second assignment he charges that the court erred in refusing special charge as follows:

“If you find from the evidence that plaintiff Tucker did not authorize Bagby to sell the automobile, which is the subject-matter of this suit,, but if you do believe from the evidence that at the time defendant Trimble bought said automobile from Bagby, there was a pending suit in. Harris county, Tex., involving the title to said automobile, and that to settle this suit defendant Trimble paid over the sum of $75, then if you-find the title to the automobile to be in plaintiff, Tucker, you will also find against plaintiff, Tucker, and in favor of the defendant, Trimble,, for the seventy-five dollars.”

And then in the same assignment, he presents, grouped therewith, the sixth as follows:

“The court erred in excluding the evidence of defendant, Trimble, to the fact that he paid $75 in settlement of a pending lawsuit, entitled McClellan v. Bagby, involving the title to the automobile in question in this suit.”

The questions and answers excluded as shown by bill of exceptions are as follows:

“Seventh Int. (a) Please state whether or not at the time you purchased said automobile, on or about the 25th day of September, 1911, there was a pending lawsuit, entitled McClellan v. Bagby, in Harris county, Tex., involving the title to said automobile; and (b) if you say there was a pending lawsuit, then please state what amount of cash, if any, you paid out to clear the title to said auto in connection with said suit; and (c) please state to whom you paid the money on account of said lawsuit; and if you have the original receipt given you by Mr. Quebadaux, kindly attach said original receipt to your deposition, and have the notary public identify same with his initials.”

To which the answer was as follows:

“Seventh Int. (a) Yes. (b) Seventy-five dollars. (c) Deposited the amount with Queba-daux by agreement with Mr. Bagby, receipt for which is attached hereto (Exhibit C), and in connection with said answer defendant Trimble offered the original receipt.”

By reference to defendant’s (appellant’s) statement of his pleading, it will be noted that he nowhere alleges that Tucker’s title to the automobile was questioned in the suit mentioned, or that he was in any way liable to defendant Trimble, for moneys he might pay or deposit in settlement of a lawsuit between other parties to. which he was in no way a party, and the evidence offered does not tend to prove that such was a fact; it was therefore not relevant to any issue in the case.

The third assignment is:

“The court erred in refusing to instruct the jury that as a matter of law the pleading of both parties show that they are tenants in common in the automobile which is the subject-matter of this suit, and that one tenant in common cannot maintain a suit against his cotenant for any part of the rents of the common property.”

The answer is that the allegations in the pleadings are that they are adverse claimants, and the jury has found that Tucker is the sole owner, subject to payment of balance of the purchase money.

For the reasons given the assignments are overruled and the judgment of the trial court affirmed.

HIGGINS, J.

(concurring). I am of opinion that appellant’s special charge, the refusal of which is made the basis of the first assignment, was a proper one, and should have been given, but the error in its refusal is harmless, since the jury’s verdict discloses that in the assessment of damages for the unlawful detention of the car, credit was given for all items to which appellant was possibly entitled. If it should be conceded that the second and sixth assignments present abstract error, which, as Judge HARPER holds, rs not the case, nevertheless for like reason, the error is harmless. I concur in the affirmance of the case.


text:
    BENNETT v. SOVEREIGN CAMP, WOODMEN OF THE WORLD.
    (No. 1321.)
    (Court of Civil Appeals of Texas. Texarkana.
    May 7, 1914.)
    1. Insurance (§ 755) — Estoppel—Payment or Premiums.
    The failure of the collecting officer of the insurer to comply with a custom of sending out notices not required by the policy is available as excuse for the nonpayment of fixed dues only as ground for an estoppel, and, unless the member in default or the one assuming payment of his assessments relied on a continuance of the custom as a reminder of the assessment, and was misled by the failure to receive such notice, there is no estoppel.
    [Ed. Note. — Eor other cases, see Insurance, Cent. Dig. §§ 1907-1916; Dec. Dig. § 755.]
    2. Insurance (§ 819) — Action—Sufficiency of Evidence — Reliance on Custom.
    In an action on a policy defended on the ground of default in the payment of dues, evidence held to show that the plaintiff was depending on a local officer to pay the dues, and was not relying upon the custom to send written notices.
    [Ed. Note. — Eor other cases, see Insurance, Cent. Dig. §§ 2006, 2007; Dec. "Dig. § 819.]
    3. Insurance (§ 827) — Findings—Judgment —“Carrying a Member.”
    In an action on a policy of insurance making the constitution and laws part of the contract, requiring the payment of fixed dues and assessments, and providing that default in payment should suspend the member and forfeit the policy, and not authorizing the officers of the local camp to release members from the payment of their assessments, depended on the ground of default in payment of dues, the jury’s findings that there existed in the order generally a custom of carrying sick and indigent members, “carrying a member” meaning the custom of paying his assessments for him as they fell due, and that such custom prevailed in the local camp, did not require the court, as a matter of law, to render judgment for plaintiff.
    [Ed. Note. — Eor other cases, see Insurance, Cent. Dig. § 2911; Dec. Dig. § 827.]
    4. Insurance (§ 695) — Mutual Benefit Insurance-Powers of Agent.
    While Sovereign Camp officers in the Woodmen of the World are agents of the Sovereign Camp for certain purposes, they cannot bind the camp by dealing with local members by acting merely within the apparent scope of their authority; that rule having no application where the member knows, or is presumed to know, the extent of the agent’s powers.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1836; Dec. Dig. § 695.]
    5. Insurance (§ 695) — Presumptions—Member’s Knowledge of Local Agent’s Authority.
    In a mutual benefit association, such as the Woodmen of the World, in which the powers of the Sovereign Camp officers are prescribed by the constitution, accessible to any member, and a part of every insurance contract, a member will be presumed to know them, and in his dealings with the general officers must take cognizance of the limitations placed upon their powers.
    [Ed. Note. — Eor other cases, see Insurance, Cent. Dig. § 1836; Dee. Dig. § 695.]
    6. Insurance (§ 819) — Action for Benefits — Sufficiency of Evidence — Matters of Avoidance.
    Evidence, in an action on a policy, held to warrant a finding by the court, notwithstanding a finding of the jury, that the local camp never in effect undertook to carry insured, but that that was done in his behalf as a private undertaking of the local officer.
    [Ed. Note. — Eor other cases, see 'Insurance, Cent. Dig. §§ 2006, 2007; Dec. Dig. § 819.]
    7. Insurance (§ 819) — Mutual Benefit Insurance — Sufficiency of Evidence — Avoidance.
    In an action on a policy, defended on the ground of default in payment of assessments, evidence held to warrant a conclusion that insured, by reason of his intemperate habits, was not a proper subject for relief in the matter of carrying sick or indigent members, so as to justify a refusal to render judgment for plaintiff, notwithstanding the jury’s finding of a custom of the local camp to carry sick and indigent members, in view of Rev. St. 1911, art. 4847, providing that no subordinate body or any of its officers can waive any of the provisions of the laws and constitution of a fraternal association binding on the members and their beneficiaries.
    [Ed. Note. — Eor other cases, see Insurance, Cent. Dig. §§ 2006, 2007; Dec. Dig. § 819.*]
    8. Insurance (§ 760) — Mutual Benefit Insurance-Default in Payment — Agent’s Acceptance of Payments after Death.
    Where a member holding a policy providing for the payment of fixed assessments, and that default therein should suspend the member and avoid the policy, was in default, but the local agent, who had no authority thereto, claimed to have carried him by personally, paying his arrearages, upon a small percentage for accommodation, the agent’s acceptance of the arrearages after the member’s death had no retroactive effect to revive the policy.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1923; Dec. Dig. § 760.]
    9. Insurance (§ 819) — Actions on Certificate — Evidence—Default in Assessment.
    In an action upon a policy of a. fraternal association whose constitution fixed the amount that each member should pay monthly, the jury found that an assessment against insured was not paid by him or any one for him, and other findings predicated upon the presumption that such assessment was due, and after death of the insured the beneficiary tendered the amounts alleged to be due. Held, that under the findings the court might assume, in the absence of evidence to the contrary, that an assessment was-due.
    [Ed. Note. — Eor other eases, see Insurance. Cent. Dig. §§ 2006, 2007; Dec. Dig. § 819.]
    Appeal from District Court, Tarrant County; M. H. Brown, Judge.
    Action by Annie E. Bennett against the Sovereign Camp, Woodmen of the World. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    R. M. Rowland and Crenshaw & Boykin, all of Ft. Worth, for appellant. Lattimore, Cummings, Doyle & Bouldin, of Ft. Worth, for appellee.

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

   HODGES, J.

On April 27, 1911, Annie E. Bennett instituted this suit against the Sovereign Camp of the Woodmen of the World, seeking to Recover the sum of $3,000, alleged to be due on a policy of insurance issued upon the life of J. C. Bennett, her deceased husband. The petition alleged that in 1900 J. C. Bennett was admitted to membership in a local camp of the Woodmen of the World at Bryan, Tex., and received a certificate of insurance for the sum of $3,000, in which the plaintiff was named as the beneficiary; that Bennett died on or about November 20, 1910, and was at the time in good standing in the order. The defendant answered and, among other things, alleged that Bennett had failed to pay the sum of $2.20 due as the October assessment, and that by reason of such failure his policy had, according to its terms and under the by-laws and constitution of the order, become void. It also averred that Bennett died by his own hand; that is, his death was the direct result of his drinking intoxicating liquors and the use of opiates and other narcotics and poisons, and for this additional reason his policy had become null and void. The plaintiff replied by supplemental petition, alleging that, if the October assessment had not been paid in accordance with the requirements of the order, Bennett was sick and financially distressed when it became due, and was therefore unable to make the payment; that the plaintiff communicated information of that fact, to Joe B. Reed, the clerk of the local camp at Bryan, of which Bennett was a member. It is further alleged that at this time, and prior thereto, there was a general custom in the order to which Bennett belonged of not requiring the prompt payment of dues from members who were sick and financially distressed; that the camp would continue to carry such members and maintain their good standing till they were restored to health and were again able to make the required payments; that, after the notification referred to had been given to the camp of Bennett’s condition, plaintiff and her husband were notified through J. B. Reed, the clerk, that Bennett’s dues would be paid till he was restored to health. It is averred that by reason of this custom the appellee had waived its right to demand a prompt payment of the monthly dues according to the terms of the policy and the laws of the order. It was also alleged that there was a general practice and custom on the part of the defendant and its local camps to send printed notices to members; notifying them of their . assessments and when due; that this custom had not been observed at the time the October assessment, for which default is claimed, was due, and for that reason the defendant was estopped to now claim a forfeiture of the policy. Plaintiff also pleaded the following provisions of the constitution of the order:

“Sec. 68. When a beneficiary certificate has been in force for five consecutive years immediately preceding the death while in good standing of the member holding the same, the payment thereof shall not be contested on any ground other than that his death was intentionally caused by the beneficiary or beneficiaries, or by the hands of justice, or from the direct result of drinking intoxicating liquors or from the use of opiates, cocaine, chloral or other narcotic or poison.”

The case was submitted on special issues, and the following is the substance of the jury’s findings as to the material facts involved: That Bennett’s death was due to the use of carbolic acid taken with suicidal intent. At the time of his death assessment No. 241 and his camp dues for October 1910, due November 1, 1910, had not been paid. That testimony had been introduced tending to show that a custom prevailed in the local camp at Ft. Worth and at Bryan as to paying the dues and assessments for members who were sick and unable to pay. The customs of these two camps were different. The custom of the camp at Bryan was formerly to carry a member for more than one assessment, but was later limited by resolution of the camp to one assessment. ' In failing to pay the assessments after February, 1910, Mrs. Bennett was relying on Joe B. • Reed and the custom of the local camp at Bryan. On the last of March or April 1st Bennett was sick and financially distressed, and notice of that fact was given by his wife to the clerk of the camp at Bryan. The clerk shortly thereafter replied by letter, assuring Mrs. Bennett that the dues and assessments of her husband would be advanced and taken care of until she and her husband were able to pay them. That Bennett was in poor health, and unable to work but little from April 1st till his death, on November 20th. That the gross earnings and income of Bennett and wife during September and October, 1910, amounted to $80 per month, and they had money from which to pay the assessment had they desired to do so. Bennett was not sick from April, 1910, to the following November, and was able to work between those dates. There was no evidence as to what he did with his money.

The following questions and answers are quoted literally:

“Q. From April 1, 1910, up to the time of the death of said Bennett, were he and his wife not reasonably able to make payment of the dues and' assessments owing by him? A. Yes. Q. If you say that J. G. Bennett was sick and in distressed financial circumstances during the year l9l0, then was the same caused by his use of intoxicating liquor and the spending of his earnings for such liquor? A. Yes.”

Mrs. Bennett was in poor health and distressed financially from April 1, 1910, np to the death of her husband.

The jury also found that there was a custom of the local camps, known and approved by the Sovereign Camp, to send opt to members printed notices of each assessment.

The undisputed evidence shows that Bennett became a member of the Bryan camp while residing in that vicinity, and some time prior to his- death had moved to Ft. Worth. During the month of March his wife, who had been paying the assessments, being unable to make the usual monthly remittance, wrote to Joe B. Reed, the clerk of the local camp at Bryan, notifying him of her condition. Reed replied, assuring her that the payments would be taken care of for a while. There is some dispute as to just how long that was to last, and by whom the advances were to be made — whether by Reed himself or by the camp. Neither Mrs. Bennett nor her husband paid any dues alter February till a tender of all back dues was made some months after the death of Bennett. Reed testified that the local camp at Bryan had some time before adopted a resolution not to advance more than one assessment for members sick or in distress; that he had made all the payments from February up to the 1st of October from his own private funds, and was personally carrying Bennett’s policy; that prior to the 1st of October he addressed several letters to Mrs. Bennett, demanding that she and her husband pay the assessments and reimburse him for his advances ; that he received no replies from any of those letters, and refused to continue further advancements for the Bennetts; that the October assessment, which amounted to $2.20, including camp dues, was not paid within the time prescribed by the laws of the order, and the policy therefore became forfeited.

Both parties asked for judgment upon the findings of the jury, and, from the judgment rendered in favor of the appellee, this appeal is prosecuted by the plaintiff below.

The appellant assigns four reasons why the judgment should have been rendered in her favor upon this verdict: (1) It is contended that according to the findings of the jury a custom prevailed in the order and in the local camp at Bryan of sending out printed notices to members reminding them of the amount of their assessments, and when the same should be paid, and that this custom was known to and approved by the officers of the Sovereign Camp. (2) That according to the findings of the jury another custom prevailed in the order and in the local camp at Bryan of carrying members who were sick and “financially distressed,” and that this custom was known to and approved by the officers of the Sovereign Camp. (3) That according to the findings of the jury, after the death of Bennett, the entire sum due for his arrearage was tendered to and aecept-ed by Joe B. Reed, the clerk of the local camp at Bryan. (4) That there was no evidence that the proper officers had made a levy of the assessment which it is claimed Bennett had failed to pay, as required by the constitution and laws of the order.

Appellant’s brief contains several assignments of error; but we think the foregoing embrace the principal grounds upon- which she relies for a reversal of this judgment. These will now be considered in their order.

It is true the jury found that a custom of sending out printed notices prevailed as stated above, although there is not in the record a scintilla of evidence to support such a finding as to the local camp at Bryan. But the question is: Did this finding — assuming it to be properly supported by the evidence — require the court, as a matter of law, to enter judgment in favor of the appellant? We quote the following from the constitution of the Woodmen of the World.

“Sec. 56 (b). Every applicant admitted to membership prior to the 1st of September, 1901, shall each month contribute such assessments as may be levied at his age at entry, except as otherwise provided in sections 42 and 43 of these laws, according to the following table of rates: [Then follows a table of rates showing the amount to be paid upon policies ranging from $500 to $3,000, graded according to the age of the applicant at the time the certificate is issued.] The assessments collected according to the foregoing tables of rates shall be known as the Sovereign Camp Fund.”
“Sec. 69 (a). No officer, employé or agent of the Sovereign Camp, or of any camp, has the power, right or authority to waive any of the conditions upon which beneficiary certificates are issued, or to change, vary or waive any of the provisions of this constitution or these laws. Each and every beneficiary certificate is issued only upon the conditions stated in and subject to the constitution and laws then in force or thereafter enacted.”
“Sec. 109 (a). Every member of this order shall pay to the clerk of his camp each month one assessment payment as required in section 56, which shall be credited to and known as Sovereign Camp Fund, and he shall also pay such camp dues as may be required by the bylaws of his camp. He shall pay any additional assessments for the Sovereign Camp Fund, and camp dues, or either, which may be legally called.
“(b). If he fails to make any such payment on or before the first day of the month following, he shall stand suspended, and during such suspension his beneficiary certificate shall be void.”

These sections fix the amount due from each member, and state the time within which the assessments must be paid. - According to the table referred to in section 56 (a), Bennett’s Sovereign Camp dues amounted to $1.95 per month. The testimony shows that his local camp dues for that month amounted to 25 cents. These added together make an aggregate of $2.20, which Bennett must have known -he was to pay before the 1st day of November, 1910. There are no other provisions of the constitution or laws which require that notice shall be given of these regular monthly assessments. Hence, if there was any duty on the part of the local camp, or its clerk, to send Bennett or the appellant a printed or written notice reminding them of the monthly dues and the regular assessment, it must be attributed to the custom which the jury found prevailed. The failure of the collecting officer to comply with such a custom of sending out notices, when there was no law requiring it to be done, is available as an excuse for the nonpayment of fixed dues only when it furnishes grounds for an estoppel. Unless the member in default, or the party who had assumed the duty of paying his assessments, relied on the continuance of the custom as a reminder of the assessment, and when it should be paid, and had been misled by the failure to receive such notice, then there is no basis for the estoppel. Hartford Ins. Co. v. Unsell, 144 U. S. 439, 12 Sup. Ct. 671, 36 L. Ed. 496; Thompson v. Insurance Co., 104 U. S. 252, 26 L. Ed. 765; Smith v. Insurance Co., 63 Fed. 769, 11 C. C. A. 411; 3 Cooley’s Briefs on Ins. p. 2709. The writer last referred to, in discussing that question, uses this language:

“It is evident that, when a waiver by custom and course of dealing is relied on by the insured or his beneficiary, the first questions to be determined are whether any such custom or course of dealing exists, whether it is applicable to the particular contract, and whether it was relied on hy the insured."

It will be observed, not only from the extract quoted, but from a consideration of the authorities cited, that in order for the party claiming the benefit of the custom to justify the failure upon his part to make the stipulated payments, he must show that his failure was due to the nonobservance of the custom.

The only evidence we have as to what the Bennetts relied upon in dealing with the clerk of the local camp at Bryan is to be gathered from the testimony of the appellant. She said:

“The only thing that I paid any attention to in the matter was in the letter that Mr. Reed wrote me. I just depended upon that letter, and then I heard Mr. Bennett speak of the Woodmen of the World; it-was nothing in particular that he spoke about, only just about the ordinary business, not anything about the customs at all. He never at any time said any thing about the customs of the Woodmen, except when he wouldn’t have the money to pay his dues I would ask him about it, and he would say, ‘Well, the lodge will pay it,’ or they wouldn’t drop him when he was sick; that is all I ever heard him say of any kind. I never heard him say anything about the customs. * * * I have stated all I ever heard Mr. Bennett say with reference to any custom or anything of that sort in regard to the Woodmen. Since this suit came up, of course I have studied the customs, but not before.”

The jury found, probably upon this testimony, that the appellant and her husband, in failing to pay their assessments after March, 1910, were relying upon the promise of Reed, the clerk, and upon the custom of the camp at Bryan of carrying sick members who were unable to pay their dues. The undisputed evidence shows that neither the appellant nor Bennett had paid any assessments for six or seven months prior to his death, and there is no intimation in the record that they did not know that all of those assessments were due and payable according to the by-laws of the order. Mrs. Bennett’s testimony demonstrates that she was not relying upon the reception of any printed notice, but was depending upon Reed and the camp to make these payments for her. Hence there are none of the elements of estoppel presented. While the court cannot render a judgment predicated upon facts opposed to the findings of the jury, where the case is submitted on special issues, yet he may disregard immaterial findings or the finding of immaterial facts, and render judgment upon material facts which he is allowed to find. Where the judgment is not in necessary conflict with the findings of the jury, it will be presumed that the court found the facts necessary to sustain it. Rev. St. art. 1985. We think, under the evidence, the court was justified in rendering a judgment for the appel-lee, notwithstanding the existence of the facts found by the jury as to that particular custom.

Passing to the second question: Did the finding that there existed in the order generally a custom of carrying sick and indigent members, and the further finding as to the particular custom prevailing in the local camp at Bryan, require the court, as a matter of law, to render a judgment in favor of the appellant? Upon this issue the jury returned affirmative answers to the following questions:

“(1) In ease a member should be sick, or have sickness in his family, and be in distressed financial circumstances and unable to make prompt payment of his dues and assessments, was there a practice on the part of the local camps of the defendant society at and before the death of the said J. O. Bennett not to require of such member prompt payment of his dues and assessments at the time the same became due, but, on the contrary, to take care of such member’s dues and assessments and pay them for him until he should again be able to make payment? (2) At and before the death of the said Bennett was such practice, if any, known to any of the sovereign officers of the defendant society and acquiesced in by them?”

The jury further found that there were 1,600 local camps in Texas; that there was testimony introduced as to this custom in two of those local camps, and it was different in each; that in the Bryan camp “there seems to have been a custom existing to carry a member for more than one assessment, which was later limited by resolution of the camp to one assessment.” The custom of “carrying a member” evidently means the custom of paying for the member his assessments as they fall due, for neither the general officers of the Sovereign Camp nor the local camp had any authority to release the member from this obligation to the order. In the Bryan camp the custom was to “carry” the member for one assessment only. The jury also finds that the Octobér assessment due from Bennett was never paid during Ms lifetime. As to that assessment, Bennett evidently was not “carried” by his local camp. This question then arises: Assuming that it was the custom of the Bryan camp to pay to the Sovereign Camp one assessment for its sick and indigent members, did the failure of that camp to comply with that custom relieve Bennett from the legal consequences of the nonpayment of his assessment? Appellant contends in effect that it did; but we do not concur in that view. Bennett was admitted as a member upon Ms own application, and by the terms of his policy the constitution and laws of the order became a part of his contract of insurance. He bound himself to pay within designated dates the dues and assessments levied. He agreed that suspension of his policy and the forfeiture of prior payments should be the consequences of the nonpayment of those assessments. It manifestly was his duty to see that these obligations to the order were promptly discharged according to the terms of his agreement. If his local camp undertook to do that for him — in other words, to “carry” Mm — that was a matter of private arrangement between him and his camp, and did not release Bennett from the obligation assumed as the conditions upon wMch his policy would be continued in force. Section 112 is as follows:

“On or before the 5th day of every month the clerk of each camp shall cause a warrant to be drawn on the banker of his camp, signed by himself and the Council Commander, for all the Sovereign Camp funds in the hands of the banker, then due the Sovereign Camp, and forward said funds and all other funds due the Sovereign Camp to the Sovereign Clerk. Such amounts shall be remitted in money order or bank draft with exchange, payable to the order of the Sovereign Banker. Accompanying such remittance the clerk shall also forward such detailed statement of the standing of the members in the camps as shall be required for the information of the Sovereign Clerk, upon blanks furnished for that purpose.”
“Sec. 13. If any camp through its proper officers fails to remit the Sovereign Camp fund received by the clerk to the Sovereign Clerk as required to be done by section 112, on or before the last day of that month, the camp and all its members shall stand suspended and shall not be reinstated until payment of all money due from said camp to the Sovereign Camp shall have been received and accepted by the Sovereign Clerk.”
“Sec. 119. A member suspended for nonpayment of assessments or dues is not entitled to any benefits of the order.” etc.

By the provisions quoted the local camp itself has no authority to release members from the payment of their assessments. If it should fail to pay the required sum, the member would be subject to the same penalty as if the failure was due to his own neglect. A finding by the jury that the Sovereign officers knew and acquiesced in a custom on the part of the local camps of carrying their sick and indigent members does not necessarily imply that these officers acquiesced in a custom on the part of the camps of assuming, but not paying, the dues and assessments of such members. Presumably the local camp may expend its private funds for this or any other legitimate purpose, and the Sovereign Camp officers would have no right to object to such a benevolent use as that of aiding an unfortunate member in paying his monthly assessments. While the Sovereign Camp officers are the agents of the Sovereign Camp for certain purposes, they cannot bind their principal, when dealing with the members, by acting within merely the apparent scope of their authority. That rule can have no application where the party dealing with the agent knows, or is presumed to know, the extent of the agent’s powers with reference to the particular transaction. In a fraternal and mutual benefit association, such as the Woodmen of the World, the powers and duties of the Sovereign Camp officers are prescribed and regulated by the constitution and laws adopted and promulgated by the Sovereign assemblies. These are accessible to every member and become a part of every insurance contract. The member will therefore be presumed to know them, and in his dealings with the general officers must take cognizance of the limitations placed upon their powers. It follows from this that even though the Sovereign Camp officers had acquiesced in the custom of “carrying” sick and indigent members, prevailing in the local camps, that did not imply that those officers had done that which they had no authority to do — waive the payment of the monthly assessments levied for the benefit of the. Sovereign Camp fund.

Again, the court might have concluded, notwithstanding the findings of the jury, that the Bryan camp never in fact undertook to “carry” Bennett; that what was done in his behalf was the private undertaking of Reed, the local clerk. There was ample testimony to justify such a conclusion. Or the court might have concluded from the facts and the findings of the jury that Bennett was not a proper subject for the camp’s gratuitous assistance in that respect. The jury found that the gross income of Bennett and wife for the months of September and October amounted to $80 per month. It further found that Bennett’s ill health and financial distress were due to the excessive use of intoxicating liquors. It would be at-,:i buting to the local camp an unusual degree of indulgence to assume that it would undertake to carry the assessments of a member who was squandering his means and injuring his health by such habits of intemperance. We think there was ample ground for the court to refuse to render a judgment in favor of the appellant upon this ground, notwithstanding the facts found by the jury. Article 4847, Rev. Civ. Stat. 1911, United Moderns v. Pyke (Civ. App.) 76 S. W. 774; Brotherhood of Railway Trainmen v. Dee, 101 Tex. 597, 111 S. W. 396; McWilliams v. Modern Woodmen of America (Civ. App.) 142 S. W. 641.

The third ground relied on by the appellant, the reception of all arrearages by the clerk of the local camp at Bryan after the death of Bennett, is equally as untenable as those previously discussed. As before stated, Bennett died on November 20, 1910, and in the February following the sum of $23.40, purporting to be the amount in full of all arrearages due from Bennett, including the October assessment, was paid by check to Reed, the clerk of the local camp at Bryan. The jury found that no part of that sum was ever transmitted to the Sovereign Camp, but that it was all appropriated by Reed to his own personal use. The testimony shows that Reed claimed to have personally made from his own funds all of the advancements by which Bennett’s assessments were paid, that he had a habit of charging the members thus accommodated a small percentage, and that this $23.40 was no more than what Bennett owed him. By the laws of the order Bennett before his death had lost his standing, and his policy had become null and void. A reception of this money by the clerk after his death could have no retroactive effect in the way of reviving the policy. The clerk can only bind the order by receiving those dues and assessments which he is authorized to collect. See the authorities above referred to.

The fourth ground is that there was no evidence that an assessment had ever been levied by the Sovereign Camp officers charged with that duty. The constitution itself fixed the amount that each member should pay monthly, according to a certain scale, determined by the amount of the policy and the age of the applicant at the time he became a member. The first question propounded to the jury was as follows:

“Was the Sovereign Camp assessment No. 241 and his camp dues for October, 1910, paid or not paid by J. C. Bennett or any one else for Mm on or before November, 1910?”

To this the jury answered, “No.” Other interrogatories and answers are predicated upon the assumption that an assessment for October was due and to be paid on or before November 1st. The constitution fixed the amount of the assessment, and designated the time when it must be paid. Upon the findings of the jury the appellant asked for a judgment. Under these findings the court had a right to assume, in the absence of evidence to the contrary, that there was an assessment due for the month of October. Even after the death of Bennett the appellant through her attorneys tendered that sum, thereby conceding that it was due. Appellant’s case is founded upon the fact that Bennett was excused from the nonpayment of the assessment, not because it was never levied, but because of a custom which justi■fied him in relying upon the camp to notify him of its having been called or of paying it for him.

It is unnecessary to notice the various assignments in detail.

The judgment of the court is affirmed.