author: TADBOT, J.

text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. NORRIS et al.
    (No. 7444.)

    (Court of Civil Appeals of Texas. Dallas.
    Jan. 29, 1916.
    Rehearing Denied Feb. 26, 1916.)
    1. Carriers &wkey;>318(4) — Carriage op Passengers — Proximate Cause op Death— Sufficiency of Evidence.
    In a suit for a death against a railroad, evidence held sufficient to authorize finding that the negligence of the road’s servants in making a flying switch with the car on which decedent rode, and the injuries received by him as a result thereof directly and proximately contributed to produce his death.
    [Ed. Note. — For other eases, see Carriers, Cent. Dig. §§ 1307, 1308; Dec. Dig. &wkey;318(4).]
    2. Death &wkey;>17 — Proximate Cause.
    Where the injuries sustained by a shipper of household goods and live stock while riding therewith in a box car as a result of the road’s negligence in making a flying switch were the efficient cause of his death, together with injuries subsequently received by Mm from a fall off his wagon, even though such fall was not caused by sickness resulting from his previous injury, the damages caused by each accident not being separable, the road was liable for the death, since if an accident occurs from two causes, both together the efficient cause, ail persons whose negligent acts contributed to the accident are liable for the injury.
    [Ed. Note. — For other cases, see Death, Cent. Dig. §§ 19, 21; Dec. Dig. &wkey;>17.]
    3. Death <&wkey;103(2) — Proximate Cause — Question for Jury.
    In a suit against a railroad for a death, where the jury could have found that the negligence of the road’s servants in making a flying switch was the sole cause of the death, that it proximately contributed to cause the death, or that the injuries received by decedent from the flying switch and the injuries subsequently sustained by him in a fall from his wagon together were the efficient cause of the death, the court properly refused a peremptory instruction for the road, since the question of proximate cause is ordinarily for the jury, and only where the facts are undisputed and the inferences to be drawn from them perfectly plain is it the court’s ■duty to determine the question of negligence as a matter of law, a question ordinarily for the jury.
    [Ed. Note. — For other cases, see Death, Cent. Dig. § 141; Dec. Dig. &wkey;103(2).]
    4. Appeal akd Error t&wkey;934(2) — Failure to Submit Issue — Effect—Statute.
    By direct provision of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1985, where the case is submitted on special issues, an issue not submitted and not requested by a party must be deemed to have been found so as to support the judgment, if there was evidence to sustain such a finding."
    [Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. &wkey;>934(2).]
    5. Appeal and Error <&wkey;1062(5) — Harmless Error — Submission op Issues.
    In a suit against a railroad for a death, error in submitting the issue whether the injuries received by decedent when riding in the road’s box car contributed to cause his death after he fell from a wagon, the answer to which could! fix no liability on defendant, furnished no ground for reversal of judgment for plaintiffs.
    lEd. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4218; Dec. Dig. &wkey;10G2(5).]
    6. Trial <&wkey;213 — Refusal op Charge.
    In a suit against a railroad for a death, where the case was submitted on special issues, the refusal of a charge, embodying a declaration of law which could only be applied by the court to the facts found, and could have been of no material aid to the jury in determining the questions of fact submitted to them, was proper.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 480; Dec. Dig. <&wkey;>213.]
    7. Trial <&wkey;260(l) — Instructions.
    Charges need not be repeated.
    [Ed. Note. — For other eases, see Trial, Cent. Dig. § 651; Dec. Dig. &wkey;260(l).]
    8. Appeal and Error <&wkey;1062(l) — Harmless Error — Refusal of Special Issue.
    In a suit against a railroad for a death, the refusal of the issue, “Did the injuries received by deceased * * * as a result of a collision with a box caz, directly or proximately in a natural and continuous sequence, and unbroken by a new cause, produce his death?” was harmless to the road, where, had it been submitted and answered in the negative, the judgment against the road would have been authorized and supported by the evidence and other findings.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4212; Dec. Dig. <&wkey;>1062(l).]
    9. Trial <&wkey;350(l) — Submission of Useless Issue.
    In a suit against a railroad for a death, the refusal of an issue as to which neither an affirmative nor a negative answer would have relieved the road from liability was proper.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 828; Dec. Dig. &wkey;350(l).]
    Appeal from District Court, Dallas County; "Kenneth Foree, Judge.
    Suit by J. A. Norris and others against the Missouri, Kansas & Texas Railway Company of Texas. From the judgment defendant; appeals.
    Affirmed.
    Dawther, Pope & Mays, of Dallas, for appellant. Carden, Starling, Carden, Hemp-hill & Wallace, of Dallas, for appellees.

      Application for writ of error pending in Supreme Court.

   TADBOT, J.

This suit was instituted by the surviving widow and children of J. S. Norris, deceased, to recover damages alleged to have been sustained by them on account of the death of the said Norris, which they claim was caused by the negligence of appellant. The deceased, J. S. Norris, had purchased a farm near Pottsboro, Grayson county, Tex., and in January, 1914, was moving to his new home. From Greenville, Tex., to Pottsboro, Tex., he, together with his household goods, some live stock, farm implements, and produce, was transported by the appellant railway company in a box car. This car arrived at Pottsboro Saturday, January 10, 1914, and was placed upon a side track by means of what is known as a “flying switch.” Standing upon the side track was another car, and the car in which the said Norris and his property were being transported collided with said car. The car was sent in on the side track with such force that the impact of the cars coming in collision was so great that the partitions, which had been constructed in said ear for the separation of the live stock and other property and orderly arrangement thereof for transportation, were torn down, the said Norris, who was 59 years of age, thrown to the floor, and a horse or cow thrown upon his leg, whereby and by reason of being so thrown to the floor, he received injuries to his head, chest, side, and leg. On the day following the acoident, just stated, the said J. S. Norris, in company with a man named Hill, started out in a wagon, drawn by two mules and loaded with some of his goods, to the farm which he had bought. Norris, seated upon some hay stacked two bales high in the front end of the wagon, drove the team. When a short distance out of Pottsboro Mr. Norris pitched forward and fell upon the hounds, or rear part of the wagon tongue. The bale of hay upon which he had been seated also fell out of the wagon and upon him as he was lying upon the wagon tongue. The fall of Mr. Norris and the hay frightened the mules drawing the wagon, and they started forward in a very fast walk or trot, and Mr. Norris fell from the wagon tongue to the ground immediately behind the mules. A very short time before he fell from the wagon he remarked to his companion, Hill, who was seated by his side, that he (Norris) was feeling “awful bad,” to which I-Iill replied, “Yes; you look bad.” In this connection Mr. Hill testified:

“I looked at him, and he looked pale in the face, kind of pale around the lips, and looked sort of fainty to me; he was just pale all over his face. * * * I mean when I say he looked pale that he looked white, pale in the face; he seemed a whole lot whiter in the face at that particular time than he had during the morning. At that time he was sitting on the front end of the wagon; that was the same position he had occupied from the time he started out. * * * He was sitting on a bale of hay. * * * At the time he fell off the wagon the mules were traveling slowly, in a moderate walk. There was no rough place in the road that caused him to fall from the wagon. The mules made no. stop or start just before he fell off the wagon or at the time he fell.”

After Mr. Norris fell from the wagon, and the team caught and stopped, he was assisted, into it again by Hill and carried hack to Pottsboro, where he was examined by Dr. Hogan and something given him to ease the pain with which he was suffering.' Dr. Hogan testified that during the examination he there made Mr. Norris did not complain of any parts of his body hurting except his lower limb and ankle and his left side; that Mr. Norris had a little skinned place on his face, but he was not complaining of that. He further said that Mr. Norris told him that he thought the injury to his left side and ribs was caused by a mule kicking him in the runaway. There was, however, testimony to the effect that Norris received, as a result of the collision of the cars, a cut or skinned place about or above his eye, and that he complained of headache. In a statement secured and reduced to writing by an agent of appellant on Monday following the accidents related, Mr. Norris is made to say, among other things, that he was not injured while in the box car in any part of his body except his left leg and ankle; that when he fell from the wagon he hurt his other leg, side, and face; that his hips were also hurt some, and that he thought one of the mules kicked him in the side. A statement in some respects similar seems to have been procured by the same agent of appellant from Hill, who was with Norris' when he fell off the wagon. There is, however, testimony to the effect that the statements made by Mr. Norris and Hill to appellant’s agent were not correctly reduced to writing by said agent, and do not reflect the true statements of said parties in most material particulars. After Norris was examined by Dr. Hogan at Potts-boro on Sunday, he was carried to Ms home and put to bed, where he remained, complaining of his injuries, and a part of the time in a “comatose or dazed condition” until his death, which occurred on Saturday, one week from the date of the accident in the box car. The attending physicians, Drs. Hogan and Parrish, testified that in their opinion Mr. Norris’ death was caused by hemorrhage of the brain, one of them, Dr. Parrish, saying that the hemorrhage may have resulted from the injuries received by Mr. Norris in the box car, while Dr. Hogan testified that in his opinion the injury received in the box car, as told to him, could not have caused the hemorrhage; that it would appear reasonable, from the history he learned of Mr. Norris’ injuries- received in the runaway, that the hemorrhage of the brain from which he died could have been caused from such injuries. The case was tried on the 7th day of November, 1914, and submitted to the jury upon special issues. Upon the findings of the jury on the issues submitted judgment was rendered in favor of the appellees, Americus Norris, widow of J. S. Norris, and Grady and Amelia Norris, children of said J. S. Norris, against appellant, and that the remaining appellees take nothing by their suit. From this judgment appellant perfected an appeal to this court. .

The first assignment of error complains of the trial court’s action in refusing to give a special charge requested by appellant, directing the jury to return a verdict in its favor. Appellant admitted in the trial of the cause, or it was proved, that the injuries the decedent, Norris, sustained in the box car were the proximate result of its negligence in making the flying switch. It defended on the ground that the deceased, Norris, did not die from those injuries, but from the injuries received when he fell from his wagon while afterwards driving along the road; and tlie request for^the peremptory instruction under consideration and the assertion that it was error to refuse it are predicated upon the theory and claim that there was no evidence introduced that would authorize the conclusion that the death of the said Norris directly and proximately resulted from the negligence of the appellant in making the flying switch, or that such negligence was one of the “prominent and efficient causes” of his death; that the evidence affirmatively disclosed that the death of the said Norris directly and proximately resulted from other and intervening causes, namely, injuries received by him falling from his wagon the day following the receipt of the injuries alleged to be due to the negligence of appellant. The proposition is made that “the proximate cause of an event must be understood to be that which in a natural and continuous sequence, unbroken by any new cause, produced that event, and without which that event would not have occurred,” and that in the instant case the negligent act of the appellant was the remote and not the proximate cause of the death of Norris. We would not be warranted in holding that the evidence in this case conclusively showed that the solo proximate cause of the deceased’s death was an injury, or injuries, received when he fell’ from his wagon, or that the negligence of appellant in making the flying switch wMch resulted in injury to him while in the box car the day before was not an efficient cause of his death, but only a remote cause thereof, if cause at all. On the contrary, we think the evidence is sufficient to warrant the conclusion that the negligence of appellant’s servants in making the flying switch and the injuries received by the said Norris as a result thereof directly and proximately contributed to produce his death. Immediately after getting out of the car in which he was hurt, Norris not only complained of his leg and ankle hurting, but he told the witness Morrison, who heard him groaning and saw a cow lying upon him in the car just after the collision, that he was badly hurt in the breast. According to the testimony of L. D. Hill, as Mr. Norris left the car in which he was injured in search of a doctor—

“he walked with his hands on his hip and limped, and his face was pale, and he appeared to be sick. He was bent over and did not walk straight. He had a little skinned place over his eye, complained of being sick, and said he ‘had the headache awful bad.’ He further said, ‘They made a flying switch in there on me, and throwed my stock on me, and liked to have killed methat one of the mules or horses was lying on him; that the horse fell on his leg, and hurt his leg most.”

Mrs. Norris, wife of the deceased, testified, in substance, that on Tuesday following the injuries received by Norris, the appellant’s agent called at their home and secured a statement from Mr. Norris in regard to the nature of the injuries inflicted upon him in the box car, which was by the agent reduced to writing; that Mr. Norris told the agent that he felt too sick and bad to read; that he did not have his glasses, and could not see very well, and thát the agent kept on reading the statement. Mrs. Norris further testified:

“I heard him (Mr. Norris) tell the claim agent about his injuries he got in that car. He said he was thrown down on the floor, and the horses thrown on him, and all the partitions were broken down and the stock all thrown in where he was, and they were all in there together. He said he hurt his head and his chest and his side and his hips and left leg. That is what Mr. Norris told the claim agent while the agent was there taking that statement. I was there on Monday when Dr. Hogan called. I did not hear Mr. Norris make any statement to Dr. Hogan that he didn’t get any injury in the box car except to his leg and ankle. I was there, and could have heard it had he told him anything like that. Mr. Norris told the claim agent that he got his leg hurt in the wagon accident. He did not tell him that anything else got hurt in the wagon accident. In making up that statement, the claim agent would just ask Mr. Norris questions, and Mr. Norris would answer them, and the claim agent would write it up in his own way. Mr. Norris would answer the questions by ‘Yes’ or ‘No.’ The claim agent did most of the talking.”

The foregoing testimony of Mrs. Norris is contradicted by appellant’s agent Hodge, who secured the written statement of the deceased, Norris, above referred to in material particulars. Hodge testified, among other things, that Mr. Norris told him that he got his face skinned in the runaway, and that, as he recalled it, he told him that he got his side hurt in the runaway accident. And Dr. Hogan testified that Norris told him that all the injuries from which he was suffering, except the injury to his left limb and ankle, were received by him in the runaway. This witness, being asked whether, in his opinion, the death of Mr. Norris was caused by the injuries he received in the box car or the injuries received in the runaway accident, said:

“Well, just from reasoning, I thought he got the worst shake-up in the runaway, from the nature of it and the injuries he told me about in the car, and the fact that I could not see how -such an injury from the box car would cause any brain trouble by itself. The injury received by the box car, as he told it to me, could not have caused it, in my opinion. It would appear reasonable, from the history I learned of his injuries received in the runaway, that the hemorrhage of the brain from which he died could have been caused from that.”

Dr. Parrish, who was called in consultation, after having testified that he and Dr. Hogan concluded that Mr. Norris was dying from hemorrhage of the brain, said, in effect, that the collision of the cars and the effect thereof in throwing the deceased, Norris, to the floor of the car in which he was being transported, and the throwing of the cow or horse upon him, could have caused such hemorrhage. Being asked how that occurrence could have brought about such a condition, he answered:

“Well, if a man bad received a blow on the head, if he had fallen and struck his head against some solid body, the floor of the car or against the wall of the car, he might have ruptured some vessel in the brain that would have brought about the condition that existed when I saw him.”

He further said:

“If his (Norris’) head had come in contact with some hard body, the concussion of the cars throwing him down against the floor of the car, and bringing his head in contact with the floor of the car, might have caused such a condition.”

Dr. Parrish further testified that he could not tell the condition that Dr. Hogan said he found Mr. Norris in when he first saw him, except that he said Mr. Norris had received the two injuries, and that he was at a loss to determine which one of the injuries was the cause of the condition he was in the night that he (Parrish) saw him; that the conclusion was that the condition existing that night was caused by some injury, but which injury they did not know; that he did not think Dr. Hogan decided which.

We have not attempted to quote or state all the testimony bearing upon the question under consideration, but only so much of it as, notwithstanding the contradictions pointed out, and even though it be conceded that the definition of “proximate cause” as contended for by appellant be substantially correct and as approved by the appellate courts in this and many other jurisdictions, justifies our conclusion that we would not be warranted in holding that the evidence in the caste shows beyond controversy that the sole proximate cause of Mr. Norris’ death was injuries received when he fell from his wagon, or that the negligence of appellant in making the flying switch was not an efficient cause of his death. The appellees,

after alleging the negligent acts of the appellant upon which they based their right to recover, charged that “said negligent acts, omissions or commissions, either separately or concurrently, was and were the direct and proximate cause of the injuries and death of the said J. S. Norris,” and upon the whole testimony submitted to them, the jury, in answer to questions propounded by the court, found that the said Norris did not “die from the injury or injuries he got in the box car and none other”; that he did not “die from the injuries he got at the time he fell off the wagon and none other”; that the injuries he got in the box ear did contribute to his death; and that the deceased, Norris, after the injuries were received in the box ear, was not guilty of negligence which contributed to his death. The jury further found that the deceased, Norris, was sick and faint while riding on the wagon from which he fell, and that such sickness and faintness resulted directly from the injuries he got in the box car, but that the same did not, directly and proximately, cause him to fall off the wagon. They further found- that appellees, in the death of the said J. S. Norris, suffered damages in the sum of ?3,750.

The question then is: Was the trial court, under the evidence and the foregoing findings of the jury, authorized to render in favor of appellees the judgment from which this appeal is taken? Appellant contends it was not, and the chief propositions urged in support of its contention, as before indicated, are that the injury received by the deceased, Norris, in the box car can be regarded only as a remote cause of his death, and that to attribute death to two or more concurrent causes, each must be a—

“prominent and efficient cause; for if one of the alleged causes operates slightly with another one, which is the prominent, efficient cause, then the proximate cause of the death should be attached to the latter.”

If it necessarily followed as a matter of law upon the undisputed evidence in the case that the injury sustained by the deceased in the box car was a remote cause of his death, or that his fall from the wagon was the sole, proximate cause thereof, then the action of the court in refusing the peremptory instruction requested by appellant was error for which the ease should be reversed. We think, however, that the trial court, under the evidence adduced and the findings of the jury, was warranted in entering the judgment it did. If the injuries received by Norris in the box car, as a result of appellant’s negligence, and the injuries received by him from the fall off his wagon together were the efficient cause of his death, appellant is liable in damages therefor. In Railway Company v. MeWhir-ter, 77 Tex. 356, 14 S. W. 26, 19 Am. St. Rep. 755, the general rule is announced as follows :

“If an accident occurs from two causes, both due to the negligence of different persons, but together the efficient cause; then all the persons whose acts contribute to the accident are liable for an injury resulting, and the negligence of one furnishes no excuse for the negligence of the other.”

This language of our Supreme Court is quoted in Railway Company v. Vollrath, 40 Tex. Civ. App. 46, 89 S. W. 279, in which a writ of error was denied, and it is there said:

“It is not essential that a cause should act alone in order to constitute it the proximate cause; but if it concurs with another cause in producing the result, it will be a proximate cause, and one or both of the instruments sot-ting the cause in motion will be liable for the damages therefrom.”

Likewise in the case of Railway Company v. Lynch, 22 Tex. Civ. App. 336, 55 S. W. 3S9, in which a writ of error was also denied by the Supreme Court, where the plaintiff was injured in a collision between a passenger train and a freight car which had been blown out of a side track by a windstorm, the Court of Civil Appeals for the Fourth District held that a charge, to the effect that if the jury should find that the negligence of the railway company in leaving the car on the side track without its wheels being blocked or brakes set and the high and unprecedented windstorm were concurring causes of the collision and the plaintiff’s injuries, was proper. The court in referring to the charge, which was complained pf by the appellant, said:

“Its clear import is that, if the windstorm and appellant’s negligence in leaving the cars unsecured were concurrent causes, and together were the direct and proximate cause of plaintiff’s injury, the railroad would be liable therefor. This we understand to be the law.”

In San Marcos Electric Light & Power Co. v. Compton, 48 Tex. Civ. App. 586, 107 S. W. 1151, a telephone company had placed a guy wire on the top of a pole maintained by tile electric company, which extended across live wires strung thereon and hung to within a few feet of the ground. The guy wire became charged with the current, and caused the death of a person placing his hand on it, and the court held that the telephone company, in attaching the guy wire and in allowing it to remain in a dangerous position, and the electric company, in not removing the wire, were each guilty of negligence, which was an efficient cause of the entire injury, and were each liable to the full extent of the injury. This is in harmony with the law as announced in Mr. Street’s 6th Edition of Shearman & Redfield on the Law of Negligence, § 31. It is there said:

“The mere fact that another person concurs or co-operates in producing the injury or contributes thereto, in any degree, whether large or small, is of no importance. If the injuries caused by the concurrent acts of two persons are plainly separable, so that the damages caused by each can be distinguished, each would be liable only for the damage which he caused; but if this is not the case, all the persons who contribute to the injury by their negligence are liable, jointly or severally, for the whole damage. It is immaterial how many others have been in fault if the defendant’s act was an efficient cause of the injury.”

Referring to an action for wrongful death, it is further said in the same section:

“Nor, in such an action, is the defense that the decedent died from an independent disease made out, unless it is clearly shown that he must have died from it, when he did, even if he had not suffered from the defendant’s negligent act.”

Again, in section 32 of said work, the rule is announced that:

“The connection between the defendant’s negligence and the plaintiff’s injury may be broken by an intervening cause. In order to excuse the defendant, however, this intervening cause must be either a superseding or a responsible cause. It is a superseding cause, whether intelligent or not, if it so entirely supersedes the operation of the defendant’s negligence that it alone, without his negligence contributing thereto in the slightest degree, produces the injury. It is a responsible one if it is the culpable act of a human being, who is legally responsible for such act. The defendant’s negligence is not deemed the proximate cause of the injury when the connection is thus actually broken by a responsible intervening cause. But the connection is not actually broken if the intervening event is one which might, in the natural and ordinary course of things, be anticipated as not entirely improbable, and the defendant’s negligence is an essential link in the chain of causation. Of course, the very definition of a superseding cause implies that the defendant’s negligence cannot be the cause of the injury.”

In section 33, in- announcing the distinction between superseding cause and inevitable accident, the same authors say:

“The first alternative needs little comment. It is simply the case of inevitable accident, which has already been considered, with only this difference: That such accident occurs after the defendant has been negligent, and when, perhaps, but for the intervention of that accident, he might have been liable. But it must be carefully noted that inevitable accident, in order to furnish a complete defense in such a case, must be the sole cause of the injury, and therefore that it is no defense if, but for the defendant’s negligence, the plaintiff would not have been exposed to injury from such accident; while, if it contributed to any part of the resulting damage, it is only a defense in case that part of the damage can be accurately distinguished from the rest.”

That part of the damage caused by the fall of the deceased from his wagon cannot, by any means, be distinguished from the damage that resulted from appellant’s negligence.

The question of proximate cause is ordinarily for the jury upon all the facts. But, where the facte are undisputed and the inferences to be drawn from them are perfectly plain and not open to doubt by reasonable men, it is the duty of the court to determine the question as a matter of law. Under the evidence in the case at bar the proximate cause or causes of the death of J. S. Norris was or were issuable fact. The jury could have found that the negligent act of the appellant’s servants in making the flying switch was the sole cause of his death, or that such [ negligence proximately contributed to cause his death, or that the injuries received by the deceased in the box car and the injuries sustained by him in the fall from the wagon together were the efficient cause; therefore the court properly refused a peremptory instruction for the appellant.

The second assignment of error is, in substance, that the court erred in overruling appellant’s motion to set aside the verdict and judgment rendered, because the jury found that the sickness and faintness of the deceased, Norris, while riding upon the wagon from which he fell did not proximately cause him to fall off said wagon. The same propositions are advanced in support of this assignment that are urged to sustain the first assignment just discussed, and the argument made that, unless it was established that the injuries received by J. S. Norris in the railroad accident alone caused his death, appellees were not entitled to recover. We do not, as heretofore indicated, agree with this view. On the contrary, we think the authorities, as contended by appellees’ counsel, are .to the effect that in an action for wrongful death the connection between the defendant’s negligence and the death is broken by an intervening cause only when such intervening cause so entirely supersedes the operation of defendant’s negligence that it alone, without the defendant’s negligence contributing thereto, produced the result. Or if this is stating the rule too broadly, then if the injuries received in consequence of a defendant’s negligence and the injuries received as a result of an intervening cause, together are the efficient cause of the death, the defendant will be liable. It was admitted or conclusively shown that the injuries received by the deceased in the box car resulted proximately from the negligence of the appellant’s servants in making the flying switch, and the jury found, upon evidence authorizing such findings, that such injuries contributed to cause the death of the said Norris; that the deceased, Norris, did not die exclusively from the injuries sustained at the time he fell from the wagon; and that he was not guilty of contributory negligence. The jury further found that neither the injuries received by the deceased in the box car nor the injuries received by him in falling from the wagon alone caused his death. The effect then of their findings is that the injuries received in the two accidents were together the efficient cause of Norris’ death. So if these causes were together the efficient cause of J. S. Norris’ death, then the appellant is liable, and may be required to respond in damages therefor, even though the sickness or faintness with which the said Norris was suffering just before he fell off the wagon did not proximately cause such fall. The issue as to whether or not the injuries received by the deceased in the box car and in his fall from the wagon were together the efficient cause of his death was not submitted by the court to the jury, nor did the appellant request the submission of such issue. Our statute provides, in the event the case is submitted on special issues, that the failure to submit any issue shall not be deemed a ground for reversal of the judgment, upon appeal or writ of error, unless its submission has been requested in writing by the party complaining of the judgment. In such case an issue, not submitted and not requested by a party to the cause, shall be deemed as found by the court in such manner as to support the judgment ; provided there be evidence to sustain such a finding. Vernon’s Sayles’ Texas Statute, art. I0S5. The evidence disclosed by the record is sufficient to sustain a finding that the injuries received in the box car and those suffered as a result of his fall off the wagon by the deceased together were the efficient cause of his death. Therefore, applying the statutory rule referred to, even if the effect of the jury’s findings were not sufficient, it must be presumed that the trial court found said issue in accordance with the contention of appellees, which supports the judgment rendered, and not in accordance with the contention of appellant. It follows that appellant’s motion to set aside said judgment was properly overruled.

The third and fourth assignments of error are grouped in the brief. The third is that the court erred in overruling appellant’s objection to and in submitting the following issue:

“Did the injuries got in the box car contribute to cause the death of the deceased?”

It is claimed that it was error to submit this issue because, the answer to the question would fix no liability upon the appellant. Even if this contention is correct, the submission of the issue furnishes no ground for a reversal of the case. But there was no error in submitting the issue in the language used. A charge which authorized a recovery if the negligence alleged merely contributed to the result was held to state correctly the general rule that a recovery could be had for negligence which caused, or contributed to cause, the result. Railway Company v. Josey, 96 S. W. 6S8; Railway Company v. Groner, 43 Tex. Civ. App. 264, 95 S. W. 1118. In the first case cited the court said:

“It [the negligence] would not have to be the sole cause, but would be sufficient if it be one that contributes to the result.”

The fourth assignment is that the court erred in refusing to give the following special charge, requested by appellant:

“To attribute death to two or more concurrent causes each must be a prominent and efficient cause; for if one of the alleged causes operates slightly with another one, which is the prominent, efficient cause, then the proximate cause of the death should be attached to the latter.”

This charge could have been of no material aid to the jury in determining the question of fact submitted to them. It is but a declaration of law which, since the case was submitted on special issue, could only be applied by the court to the facts found. The appellant did not request, and the issue as to whether the injuries sustained by the deceased in the box car were a “prominent and efficient” cause of his death was not submitted to the jury.

The fifth and sixth assignments of error were properly refused, because both of them simply embodied abstract propositions of law, neither of which could have been of any assistance to the jury in determining the questions submitted to them, as they were required to return a special verdict. So far as the definition of “proximate cause,” as contained in the special charge No. 9 refused, is concerned, it is sufficient to say that the same definition was given in connection with one. of the special issues submitted by the court.

The seventh assignment of error complains of the court’s refusal to submit this issue:

“Did the injuries received by the deceased, J. S. Norris, as a result of the collision with the box car directly and proximately, in a natural and continuous sequence and unbroken by a new cause, produce his death?”

The only proposition submitted under this assignment is:

“The question as to whether the negligence of the railroad was the direct and proximate cause of the death of J. S. Norris was one for the jury, and the trial court erred in not submitting the same to the jury.”

We think there was no reversible error in refusing to submit this issue. If the injuries received by the deceased as a result of the collision with the box ear in which he was transported to Pottsboro and the injuries he sustained in falling from his wagon together were the efficient cause of his death, then appellant cannot escape responsibility for said Norris’ death. In such a case — •

“all the persons whose acts contribute to the accident are liable for an injury resulting, and the negligence of one furnishes no excuse for the negligence of the other.” Railway Company v. MeWhirter, supra.

The following questions, among others, were asked the jury:

“Did the deceased, Norris, die from the injury or injuries he got in the box ear, and none other?
“Did the deceased, Norris, die from the injuries, if any, he got at the time he fell off the wagon and none other?”

Both of these questions received a negative-answer. It is therefore manifest that the jury was of the opinion from the evidence that neither the injuries received by the deceased in the box car nor the injuries received by him as a result of his fall from the wagon were the sole cause of his death, but together, that is, the concurring effect of the injuries received in the two accidents,' were the efficient cause of his death. . And this is. the effect of their findings that the deceased did not die from the injuries received in either accident alone. For it follows that if the death of the deceased was not caused solely by the injuries received by him from his fall off the wagon, then as his death could not be attributed under the evidence to any other cause, it was caused by the concurring effect of the injuries sustained in the two accidents, and each of said injuries was necessarily* an efficient cause thereof. Therefore the injuries inflicted upon the deceased in the box car through the negligence of the appellant was not, according to the findings of the jury, a remote cause, but an efficient concurring cause of his death, and the appellant is liable for the damages sustained as a result thereof, although the injuries subsequently received as a result of his- fall off the wagon likewise proximately concurred in producing the said Norris’ death. The issue sought to be submitted was, in effect, perhaps calling on the jury to determine whether or not the injuries received by the deceased in the box car were the sole proximate cause of his death, but if such was not its effect, it ought not to have been submitted, under the evidence in this case, in the form offered. The controlling question in the ease, as we view it, was whether the injuries received by the deceased in the box car, together with the injuries received by his fall from the wagon, were the efficient cause of Norris’ death; and, had the question refused been submitted and answered in the negative, the same judgment that was rendered by the court would have been authorized and supported by the evidence and other findings made in the case. The refusal to submit the question, therefore, was harmless.

The last assignment of error is that the court erred in refusing to submit this issue;

“Would the death of J. S. Norris, deceased, have occurred but for the injuries received by him in the runaway?”

There was no error in refusing to submit this issue. If it had been submitted, neither an affirmative nor a negative answer would have relieved the appellant from liability occasioned by its negligence, since it cannot excuse itself from the results of its negligence by simply showing that such results alone were not sufficient to cause the death of the deceased. If the results of its negligence and the injuries received by the deceased in the fall off his wagon together were the efficient cause of his death, and the jury have said, in effect, they were, then the appellant is liable, although neither of such injuries alone would have caused the said Norris’ death.

On the whole casé our conclusion is that the assignments disclose no reversible error; that the judgment is supported by the evidence,' and should be affirmed. It is therefore accordingly so ordered.

Affirmed.
      &wkey;sFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <&wkey;>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HENDRICKS, J.

license: Public Domain

text:
    HESTER v. HUTSON.
    (No. 902.)

    (Court of Civil Appeals of Texas. Amarillo.
    Feb. 9, 1916.
    Rehearing Denied March 1, 1916.)
    1. Evidence ¡§==>265(1) — Admissions—Denial.
    There is no rule which prevents a party from denying testimony of admissions alleged to have been made by him.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1029, 1043, 10*44, 1046; Dec. Dig. ¡§=5265(1).)
    2. Evidence ¡§=265 (18) — Admissions — Weight.
    Admissions of a party as to a transaction are especially valuable in evidence.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 1050 ; Dec. Dig. ¡§=265(18).]
    3. Witnesses ¡§=159(3) — Competency — “Transaction with Deceased.”
    A denial by an interested party that he had a certain “transaction with deceased” is evidence of-a transaction, and inadmissible under Rev. St. 1911, art. 3690, prohibiting testimony of transactions with persons deceased.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 669; Dec. Dig. ¡§=159(3).
    For other definitions, see Words and Phrases, First and Second Series, Transaction.]
    4. Vendor and Purchaser ¡§=20*8 — Mutual Rights — Necessity of Written Agreement.
    Where the vendor, under an option contract for the sale of land, disposed of certain parcels within the term of the option, it was immaterial that there was no specific agreement to turn over to the option holder the amounts so derived, since the proceeds in equity belonged to him.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 424; Dee. Dig. <§= 208.]
    5. Appeal and Error ¡§=1056(2) — Harmless Error.
    Exclusion of testimony as to transactions of party interested with deceased and as to the existence of agreement between such parties held harmless, where its admission would not have benefited the defendant, who sought to introduce it.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4188; Dec. Dig. ¡§= 1056(2).]
    6. Witnesses ¡§=159(1) — Transactions with Deceased — Representative Capacity.
    That a transaction with deceased was had in his representative capacity for a corporation does not affect the rule as to admission of testimony regarding it, since it is nevertheless a transaction with one deceased, which is always inadmissible.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 629, 664, 666; Dec. Dig. ¡§= 159(1).]
    7. Appeal and Error €=1067 — Harmless Error — Instructions.
    Error cannot be predicated on the refusal to instruct against liability of the defendant if the contract terminated on a certain date and was not renewed, where the evidence conclusively established that the contract was renewed.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4229; Dec. Dig. ¡§=1067; Trial, Cent. Dig. § 475.]'
    8. Trial ¡§=194(13) — Vendor and Purchaser <§=352 — Options—Right to Benefits— Instructions.
    Instruction on right of the holder of an option to purchase land to have stuns received from sale to other persons applied on his debt held not on the weight of evidence, nor calculated to confuse.
    [Ed. Note.' — For other cases, see Trial, Cent. Dig. § 402; Dec. Dig. @=>194(13); Vendor and Purchaser, Cent. Dig. § 1059; Dec. Dig. @=> 352.]
    9. Alteration oe Instruments @=>29 — In-terlineations — VAEipiTr—Evidence.
    Evidence held to show that interlineations in a contract were made by the defendant, who denied it, and were of date concurrent with the contract.
    (Ed. Note. — For other cases, see Alteration of Instruments, Cent. Dig. §§ 259-263; Dee. Dig. @=>20.]
    10. Trial @=>194(13), 240 — Vendor and Purchaser @=>352 — Option Contracts — Possession by Optionee — Character oe Possession.
    Instruction in action on an option contract of sale held not argumentative, ambiguous, or upon the weight of evidence on the issue whether the holder of the option held as a special tenant.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 462, 561; Dec. Dig. @=>194(13), 240; Vendor and Purchaser, Cent. Dig. § 1059; Dec. Dig. @=>352.]
    11. Vendor and Purchaser @=>352 — Options —Possession by Optionee — Evidence.
    Evidence held to justify the submission of an instruction on the character of the tenancy of the plaintiff’s predecessor in interest as a special tenancy.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 1059; Dec. Dig. @=> 352.]
    12. Appeal and Error @=>742(1) — Review-Province oe Court.
    Where a proposition under an assignment of error is insufficient, the court, on appeal, cannot reframe it to make it fit the record in order to properly present the issue.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. @=>742(1).]
    13. Appeal and Error @=>090(1) — Review— Exclusion oe Evidence — Sufficiency oe Exceptions.
    A bill of exceptions to the exclusion of evidence, reciting merely what the evidence would have been, is insufficient, where it fails to show the materiality of the testimony, which is apparently unconnected with the issues.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2897, 2904; Dec. Dig. @=> 690(1).]
    14. Appeal and Error @=>273(5) — Preservation oe Exceptions — 'General Exceptions.
    Whete an instruction 'embodies several propositions of law, some of which are accurate and not subject to objection, a general exception is insufficient to raise the propriety of a particular portion of the instruction.
    [Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. @=>273(5); Trial, Cent. Dig. § 689.]
    Appeal from District Court, Deaf Smith County; D. B. Hill, Judge.
    Action by Mrs. Kathryn Hutson, adminis-tratrix with the will annexed of John Hutson, deceased, against L. T. Lester. Judgment for plaintiff on remand after appeal, and defendant appeals.
    Affirmed.
    See, also, 167 S. W. 321.
    Turner & Rollins and Reeder & Dooley, all of Amarillo, and G. W. Barcus, of Waco, for appellant. Carl Gilliland, of Hereford, and Madden, Trulove, Ryburn & Pipkin and W. H. Kimbrough, all of Amarillo, for appellee.

      Application for writ of error pending in Supreme Court.

   HENDRICKS, J.

The plaintiff, Hutson, as administratrix, alleged the execution and delivery by Lester to her deceased husband, John Hutson, of the following instrument:

“Canyon, Texas, January 8, 1907.
“State of Texas, County of Randall.
“I, L. T. Lester, agree to sell to John Hutson, or order, sections 11, Blk. K 14, B. S. & F. Cert. No. 127; 15, block K 14, J. Gibson Cert. No. 129; 17, Blk. K 14, B. S. & F. Cert. No. 1/51 — all these sections are located in Deaf Smith Co., Texas.
“Also section 11, Blk. 1, T. T. R. R. Co. Cert. No. 54; also section 12, Blk. 1, T. T. R. R. Co. Cert. SíG^both situated in Randall county, Texas.
“Upon the said John Hutson paying me the sum of $8,106.67, and balance due on said sections with accrued interest and other expenses, with S% interest from date.
“This agreement to hold good until September the 12th, 1907.
“Witness my hand this the 8th day of January, 1907. [Signed] L. T. Lester.”

Plaintiff also averred a supplementary agreement of extension and modification of the above contract; also charging Lester with the sale by him as the possessor of the legal title of a considerable portion of the land embraced in said contract; that he was trustee for Hutson; alleging, further, the assertion of claim of title by the defendant, Lester, constituting a cloud upon the title; praying for an accounting, and that the cloud be removed.

Plaintiff’s petition, in its essentials, is thoroughly reproduced in the former opinion of Chief Justice Huff, on a former appeal to this court, and reported as Lester v. Hutson, 167 S. W. 324.

The questions involving Lester’s plea of privilege to be sued in the county of his residence, his general demurrer, asserting the proposition that the plaintiff’s pleading fails to show such an equitable title as that an action to remove cloud could be maintained, also advancing the subsidiary proposition that the above contract was merely an option, and supplementing this with the contention that the petition is, or should be, one of specific performance, further claiming that the alleged supplementary contract is within the statute of frauds, all of which were thoroughly discussed in the former opinion.

Before discussing any of the remaining assignments we set out the following evidence, and submit the following conclusions: It is undisputed that the contract of January 8, 1907, was executed and delivered by Lester to John Hutson; that as late as July, 1910, and at different times prior thereto, and to different persons, Hutson made claim to- a portion of the property embraced in ■ said contract; that subsequent to said contract and tlie date, on its face, of its expiration, Hutson assumed actual possession of a portion of said land, cultivated tlie same, and placed thereupon certain improvements ; that there is no formal contract of relinquishment to Lester by Hutson of the land.

Referable to the question of an actual extension of this contract, the following testimony, by one J. M. Edelen, engaged-in the commission and loan business at Kansas City, Mo., is reproduced:

“I knew John Hutson intimately for 10 years prior to his death. 1-Ie sought to secure a loan from me on two occasions, in the year 1910 on a tract of 1% sections, of land known as Mr. Hutson’s Palo Duro ránch, situated partly in Deaf Smith and partly in Randall county, Tex. This occurred some time in April or May, 1910. and again in July of the same year. He stated to me that he owned both the Palo Duro and the Tierra Blanca ranches, and wished to borrow money for himself. I had a conversation with Mr. Lester, the defendant in this case, relative to his interest in these lands. This occurred after the death of Mr. Hutsón and some time in the fall of 1911, in the Amarillo Hotel, at Amarillo, Tex. He asked me whether or not I had been shown the lands by Mr. Hutson, for the purpose of making a loan on the land. * * * He asked me the amount of the loan and the purpose for which Mi'. Hutson stated he wanted the loan. I stated to him that Mr. Hutson wanted 89,500, of which he wished $8,-500 to pay him, Mr. Lester, for the balance of the purchase price of the land, and the balance for some personal use, which he did not tell about. [This last statement was admitted by the court ‘for the limited purpose of showing what the witness stated to Lester, and not for the purpose of praying the statement of Hutson to be true.’] * * * Mr. Lester stated to me that he had previously sold the land, offered me as security for a loan by Mr. Hutson, to Mr. Hutson, under a written contract of sale; that the time for the final payment for the' lands under the terms of the contract had expired at the time Mr. Hutson had shown the lands to me. * * * That he had agreed that Mr. Hut-son might keep the land after the time had expired, on condition that he pay the balance of the purchase money due, as provided in the contract, * * * and that he had urged Mr. Hutson to make the payment.”

Bronx the testimony of D. A. Parks, cashier of the bank of which Lester is president, it is undisputed that subsequent to the date of the alleged maturity of the contract on its face, Lester and Hutson had under consideration a matter of settlement with reference to said lands, and in the fall of 1909 a statement, purporting to show how the matter stood, was made up by Mr. Parks and handed to Hutson, with details of the purchase price, interest, taxes, the amounts which certain portions of the land had brought, on account of certain sales made by Lester, and mentioning real estate commissions. It is really undisputed,. perforce of succeeding circumstances, after the date of the contract as exhibited in this record, that Hutson accepted the contract of January, 1907.

The testimony of Edelen, in regard to the statements of Lester, are undenied by the latter. It is clearly inferable from, the admissions of Lester that at least to July, 1910, he. had extended the time, and had permitted Hutson to remain in.possession of a part of the land under the contract. There was no legal obstacle to a denial by Lester, if the above statements could have been truthfully denied. Wells v. Hobbs, 57 Tex. Civ. App. 380, 122 S. W. 451.

Jones in his late work on Evidence, in commenting upon the weight of admissions as testimony, says:

“It presents itself to us as evidence of high value, when thoroughly established, for it is of that nature which may successfully challenge contradiction when effectively proved. What the party himself has said or done, at a time when the litigation perhaps was not thought of, if the certainty of it is established, having regard to the circumstances of time, place, and person, should, and often does, furnish a substantial reason for his defeat, when a trial discloses his case founded on facts inconsistent with those which he has himself adopted, and to which he has given publication.” Volume 2, § 236, bottom page 358 and top page 359.

In view of the record in this case, many of appellant’s assignments of error, if we were to even consider a review of some of the questions as legal propositions which we are not disposed to do, are devitalized to such an extent that no error could be shown.

It is urged that Lester should have been permitted to testify that the written contract of January 8, 1907, was not extended, and that a denial of the alleged transaction with a deceased person is not within the purview of Rev. St. art. 3690. Appellant cites Adam v. Sanger, 77 S. W. 954, and other decisions by the courts of other jurisdictions. This court, on the former appeal, citing Jones on Evidence, § 785, said the courts have interpreted the term “transaction” as the justice of each case demanded, rather than one of abstract definition. It was further said that the agreement of sale was in writing, and under appellee’s contention, as evidenced by the improvements, with Hutson’s possession, and Lester’s admissions, and the latter’s conduct, an agreement of extension was shown; that a denial of a contract of extension would be a negation of some arrangement, or implied agreement, manifested by the above facts, and that such testimony would, in reality, be relative to a transaction with the deceased. The case of Raison’s Adm’x v. Steele (Ky.) 29 S. W. 454, is rather in accord with this line of reasoning, and the case of Blount v. Blount, 158 Ala. 242, 48 South. 581, 21 L. R. A. (N. S.) 755, 17 Ann. Cas. 392, cited by appellant, though upholding the negative testimony in that case, assumes the peculiar position that such testimony was not admissible, as a denial, where it is shown that the party did have a transaction with, the decedent; also saying that such testimony' may or may not involve a transaction with the deceased, and whether it does or not .depends upon the particular circumstances of each case. We are not pretending to assert where the line should be drawn; there is force in the argument of the Alabama case upon other features, as to plea of non est factum, but there’ is some consideration as to the other view. Suppose the handwriting of a grantor cannot be proven by accessible undisputed handwriting documents—the notary and grantee are. dead, and the latter has gone into possession, ostensibly, under such a deed, placed, valuable improvements upon the land, and the heirs are confronted with the testimony of the grantor,-denying that he ever signed such a deed, and makes no attempt whatever by witnesses to show the handwriting was different from his signature. Would the invocation of the rule be then permissible on account of the “peculiar circumstances” of the case? The case of Adam v. Sanger, 77 S. W. 954, on account of the turn of the decision, was not approved by the Supreme Court, at least it was not necessary to approve it, and it is in reality in conflict with Edelstein v. Brown, 95 S. W. 1128. The notes and citations to the opinion of Blount v. Blount, in the L. R. A. volume, present numerous cases on this question.

The forty-third assignment raises the further question that Lester should have been permitted to testify that he had no agreement with Hutson for the sale of the land in parcels and as to the application of the proceeds of'said sale. If the extension, however, actually occurred, and the contract was in force, an actual agreement was unnecessary. The proceeds in equity belong to Hutson.

In regard to the offered testimony of Lester, denying any contract of extension, this court also said, in the former opinion, that such a denial, under the conditions, would have been a conclusion, on the theory that an implied agreement of extension could be inferred from the act, admissions, and manifestations stated, and to rebut this, by statement that no agreement was ever made, the testimony as offered would reach such conditions, in its effect, as a denial, and in that sense the testimony was a conclusion. There is force in all these suggestions, though unnecessary to decide on this appeal, for, if such testimony had been permitted, in the face of the record and conclusions derivable therefrom, we are unable to see how it would have benefited Lester in the slightest. The conclusion that some character of arrangement for an extension of the particular contract is so cogent that the loss of that character of testimony to the jury did not injure him.

The forty-second assignment raises the further question that the court erred in sustaining the objection of the plaintiff to the question propounded to the defendant, Lester, to which the answer would have been that said defendant had an arrangement with John Hutson, as agent for the Cedar Valley Land & Cattle Company, that in consideration of the use of a part of the land said company would carry the notes executed by the defendant at 7 per cent, interest, as long as Hutson or the company were permitted to use the land. The point is not made, as in the forty-first assignment (noticed later), that the plaintiff had called Lester to testify, but it is urged by proposition that testimony concerning a transaction with Hutson, as agent of the Cedar Valley Land & Cattle Company, would not be such a transaction with Hutson as would come within the exclusionary rule of 3690 R. S. Oklahoma has a similar statute.

The case of Cunningham, Adm’r, v. Phillips, 4 Okl. 169, 44 Pac. 221, by the Supreme Court of Oklahoma, in its essential elements, affords a strong analogy. Phillips in his suit against the administrator claimed-that, when Berger, the deceased, purchased the land in controversy, the deceased was his tenant, and such status constituted Berger his .trustee, praying that the administrator execute a deed. The plaintiff, Phillips, was allowed to testify to the making of a lease with Berger, the loss of the same by himself, the contents of said lease, and the payment of rent by Berger. The court said:

“This testimony constituted a very important and material part of the evidence produced in behalf of the plaintiff. * * * It is impossible to conclude, after a careful examination of the evidence in the case, that, if the testimony had been excluded as provided by the statute, the finding and judgment could have been rendered.in his behalf.”

To testify to a transaction which, by its force, would destroy plaintiff’s case. is certainly within the spirit of the statute, and the same was enacted to prevent such a result when the other party cannot be heard.

The trial court charged the jury, in substance, that if they should believe from the evidence that Hutson failed to comply with the requirements of the contract of January, 1907, on, or before September 12, 1907, the defendant was entitled to cancel and rescind same, unless they further believed that defendant failed to rescind, and instead of rescinding continued to recognize the contract as in force, and permitted Hut-son, without objection, to take possession of the lands, etc. The complaint is made that this charge is erroneous for the reason that under the terms of the contract, requiring Hutson to comply, on or before September 12, 1907, “the contract would (of itself) on said date terminate and become null and void unless it had been extended by a positive agreement on the part of the defendant.” If error, it is not available. It is conclusive that Lester did extend, and Hutson acted upon the extension of, this contract. Hence, it did not terminate, of itself, on the date mentioned.

Complaint is also made, under another assignment, that this charge constitutes error, because the defendant, Lester, was not required, under the terms of the contract, to take any affirmative action with reference to the rescission. Por the same reason this assignment Is also overruled. The ninth, twelfth, and thirteenth assignments are in the same category, and are not sustained.

The court instructed the jury that if they believed the agreement of January 8, 1907, was continued in force after September, 12, 1907, and that 2% sections of the land covered by the contract were sold to third parties and the proceeds received by Lester, it was his duty, as the trustee of the legal title, to apply the proceeds to the payment of the sums which Hutson was< obliged to pay, including interest and reasonable expenses, and if Lester failed to apply them, the law would treat such proceeds received by Lester as applied at the respective dates when received; and this would be true whether there was any express contract to that effect, since it would be the duty of Lester to apply, and the right of Hutson to receive, such proceeds upon said contract, if it had been continued' in force to the time of the sales and the receipt of the proceeds.

The fourth proposition under appellant’s twenty-first assignment of error is not embraced within his objection to this charge. We think the charge is clear, is not upon the weight of the evidence, and is not calculated to confuse, raised by another proposition, but in reality enlightens, the jury on the questions presented. If the contract was continued in force, and parts of the land were sold during the pendency of the extension, necessarily Lester was a trustee, not only of the legal title, but of the proceeds as applicable to the payment of the debt, and irrespective whether there was any express contract, or not, for the extension, so it was in force.

The twenty-sixth assignment attacks the ruling of the trial court in admitting in evidence, over the objection of appellant, the contract of January 8, 1907, on the ground of an interlineation. The proposition is that before an instrument, which shows interlineations on its face, is admissible, the party offering must explain the same. The body of the bill of exceptions, the manner in which it is framed, does not, in reality, exhibit anything objectionable, but the statement of facts shows that the following language: “And balance due on said sections with accrued interest” — was interlined with ink in the original contract, and the remainder, except the signature and heading, having been typewritten. The modifications of the bill by the court state that, when the instrument was offered in evidence, it was obvious on inspection that the interlineation was in the same handwriting as the signature to the instrument; that it was in ink of the same color, and apparently the same age, as the signature; that the suit had been pending since the summer of 1911; that in none of the pleadings of the defendant had there ever been a verified plea of non est factum, nor any allegation that the instrument had been altered by any one after the defendant had attached his signature; that counsel for defendant stated, at various times during the progress of the trial, that they made no question at all of the “execution” of the instrument, or the genuineness of the defendant’s signature thereto; that the ease had been tried twice before in the district court at Hereford; that on both trials the same original instrument had been offered and admitted in evidence, and no objection had ever been offered to it before upon the ground of the alleged interlineation. Hutson was dead, and could not explain. The contract with the Parks memoranda attached was found in Hutson’s effects at the ranch. The interline-ation was evidently in Lester’s handwriting and not Hutson’s. The conditions recited by the court were sufficient to free the instrument of any suspicion, and appellant’s authorities are inapplicable to this status.

The trial court charged the jury, in substance, that if they believed from the evidence that the possession of the lands mentioned in the contract of January 8,1907, by Hutson was not under a claim of ownership, or was under a tenancy to Lester, to find for defendant, or, if they believed that after the execution of said contract Hutson abandoned the contract and became the occupant of the land as a tenant, the plaintiff would be estopped from claiming title; but if they believed from the evidence that for a special purpose, understood between Hutson and Lester, Hutson held himself out as a tenant of said Lester, and that such holding out was not intended to alter the rights of Hut-son and Lester, as between themselves, and that' Lester was not misled or deceived thereby to his injury, plaintiff would not then be estopped by such holding out, if any, by Hut-son. In November, 1910, Lester obtained a mortgage upon a part of this property, and at that time Hutson, who was in possession of the property, disclaimed any interest in the land mortgaged except as a tenant of Lester. The fifteenth, sixteenth, seventeenth, and eighteenth assignments attack this charge from several viewpoints: That there is no evidence raising the issue that Hutson held himself out as a tenant for a special purpose; that the burden of proof was placed on the defendant to show that possession of Hutson was not under a claim of ownership, with a general complaint that it is not a correct statement of the law, and, further, that it is argumentative, ambiguous, and upon the weight of the evidence. The charge speaks for itself as to the criticisms, except the one of insufficiency of testimony permitting its submission to the jury.

When Hutson made the written acknowledgment to Herd, the agent of Post, disclaiming any interest in the land, and declaring that he was a tenant of Lester, the jury was entitled to consider the following conditions: As explanatory of his possession, Hutson had claimed the land as late as July, 1910. Prior to the purchase of this land by Lester from the Cedar Valley Land & Cattle Company, Hutson had been the agent of that company, and continued to be until the time of his death, in January, 1911. Lester had sold several parcels of land embraced in the January contract to different parties prior to the time of the disclaimer. Negotiations for a settlement, with these sales considered, had occurred some time in 1909. Lester said that the figures on Parks’ memoranda were made to see what the profits were on the land embraced in the contract. When these sales were made, Hutson, who was also an attorney in fact for the land company, had released the lien for Lester on the tracts, relative to which some of the amounts had not been paid by Lester, nor upon the original notes to the corporation. The notes, or a part at least, which Lester originally gave for all the land, were existent. The day of reckoning was to come, both for Lester and Hutson. To obtain the Post money was expedient for both parties. With a considerable amount of Hutson’s debt to Lester having been paid in equity, on account of Lester’s sales, the jury had the further right to consider whether Hutson, as between him and Lester, was, or not, actually eliminating his interest in the remaining land by the statement to Herd. An analysis of the testimony of the two witnesses, engaged in the real estate business, as to the declarations of Hutson, in regard to the latter’s interest in the remaining land— one stating the declarations were made to him in May, 1910, and the other witness testifying that Hutson made statements to him in November or December, 1910—in connection with conditions and other testimony, could have been rejected by the jury. We think the testimony raised the question whether the disclaimer was made for a special purpose as between Hutson and Lester.

Paragraph 6 of the court’s main charge presents a similar question, upon the matter of disclaimer, as well as to the execution of some releases of the vendor’s lien to Lester, executed by Hutson (for Herd’s benefit) as agent of the Cedar Valley Land & Cattle Company, at the time Herd loaned the money to Lester, submitted as estoppel. The nineteenth assignment complains of this paragraph that there is no evidence to sustain such a charge, and that it detracts from the weight to the jury of the disclaimer. For the reasons above, we overrule said assignment.

The twenty-eighth assignment of error complains of the admission in evidence of the deeds from L. T. Lester, to the several persons (the grantees in said deeds). The only proposition under said assignment which we think necessary to notice asserts that:

“The deeds should have been excluded because there is no evidence that the consideration re< cited in said respective deeds was the true con sideration.”

This proposition, in its broad presentation, with no statement under it, in view of the record, should not be sustained by this court. We are not required to reframe a proposition in accordance with, and make it fit, the actual record, nor to make a statement of the testimony which the brief should append, for the purpose of elucidating the actual point, if one exists. Lester did testify, however, as to some of the deeds, when interrogated about them, and said that they did recite the true consideration, without any question asked, nor statement by him, as to the other deeds. ,

The forty-first assignment raises the question that because appellant was called by appellee, as a witness, by taking his oral deposition, such offered testimony, when Lester was upon the stand, should have been admitted on the direct examination by his counsel, as follows:

“Q. Mr. Lester; state to the jury whether or not you were paid any lease or rents for section 11 and the north half of section 12, in Randall county, during the time Mr. Hutson was in possession of it.”

The bill merely recites:

“If the witness had been permitted to answer such question, he would have answered in the affirmative.”
“Under well-settled rules it must be made td appear in a bill of exceptions taken to the exclusion of evidence what the evidence was, and that its exclusion may have influenced the judgment.” Holstein v. Adams, 72 Tex. 490, 10 S. W. 562.

This bill, though it shows the answer, does not undertake to show the connection, or, in reality, the materiality, of the testimony. The mere statement by Lester, that he was paid rents for the land during the time Hutson was in possession would leave its materiality suspended. The bill should have gone further and shown, notwithstanding the nature of the objections in the same, that this testimony could, and would, have been followed by other testimony, and showing in what manner Hutson would have been affected. The mere general statement by Lester that he was paid rents during the time of Hutson’s possession would suspend its materiality—paid by whom, and what contractual connection would Hutson have had with the payment? It is unnecessary in this view to discuss the legal questions raised under this assignment.

The twenty-third assignment of error attacks the eighth paragraph of the court’s main charge, which is a full submission to. the jury of the principles of accounting between Lester and Hutson, in many details, according to the trial court’s view, in the event the jury found for Hutson. The exception to the charge is a general exception, “because the testimony raised no such issue” ; and the proposition to the assignment is:

“It was error * * _ * to submit the matter of an accounting, inasmuch as there is no. evidence in the record showing, or tending to-show, the propriety of such accounting.”

If the jury found for plaintiff; the testimony certainly raised an accounting of some character between Lester and Hutson, and defendant does not object to the method submitted by the court of stating the account, nor any suggestion that the trial court was in error in stating the principles of accounting. This particular charge has many sub-paragraphs, and the trial court seems to have covered every conceivable detail arising upon the record, as to the manner of the charges and the application of credits, applying subsidiary principles applicable to different matters of such debits and credits.

As to many of the principles applicable to particular accounts in certain portions of the record, there can be no question but what the testimony raises those particular issues. The Supreme Court of the United States, in Railway Co. v. Earnest, 229 U. S. 122, 33 Sup. Ct. 657, 57 L. Ed. 1096, Ann. Cas. 1914C, 172, said:

“We must * * * apply the rule that where an instruction embodies several propositions of law, to some of which no objection properly could be taken, a general exception to the entire instruction will not entitle the ex-ceptor to take advantage of a mistake or error in some single or minor proposition therein.”

The thirtieth, thirty-first, thirty-second, thirty-third, thirty-fourth, thirty-fifth, thirty-sixth, and thirty-seventh assignments of error assail the action of the court in admitting the testimony of the different witnesses as to declarations of Hutson of ownership of the land. This court in the former opinion (167 S. W. pages 328, 329, 330) discussed thoroughly this character of testimony, announcing the limitations of purpose for which said testimony could be used, and further discussion is unnecessary. The trial court conformed the use of the testimony to that holding.

Other assignments in this brief are disposed of by the reasons adduced above, except certain matters which we think unnecessary to discuss.

The judgment is affirmed.
      ®=For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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


author: LEVY, J.

text:
    TEXAS & P. RY. CO. v. ERAMBERT et al.
    (No. 1585.)
    (Court of Civil Appeals of Texas. Texarkana.
    March 8, 1916.
    Rehearing Denied March 16, 1916.)
    Carriers <&wkey;187 — Liability for Dama&e to Shipment — Oonnectin& Carriers.
    Act Cong. Eeb. 13, 1893, c. 105, § 3, 27 Stat. 445 (U. S. Comp. St. 1913, § 8031), provides that if the owner of any vessel shall exercise due diligence to make it seaworthy and properly manned and equipped, neither the vessel nor the owners shall be responsible for damage or loss resulting from faults or errors in navigation or arising from dangers of the sea or other navigable waters, acts of God, etc. Held, that where a violent hurricane loosened a porthole and forced sea water upon the cargo, a finding in favor of the steamship company in an action for damages involved the finding that the damage was unavoidable through an act of God, and precluded a recovery against a connecting railway carrier, which was guilty of no negligence.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 851, 852; Dee. Dig. &wkey;187J
    Appeal from District Court, Cass County; H. F. O’Neal, Judge.
    Action by W. H. Erambert, Jr., against the Texas & Pacific Railway Company and others. From a judgment for plaintiff against the defendant named, it appeals.
    Reversed and remanded.
    Appellee Erambert, living at Atlanta, Tex., was consignee of a shipment of trunks and hand bags from the Union Trunk & Bag Company at Richmond, Ya. The initial railroad company delivered the goods to the Mallory Steamship Company, and the steamship company to the International & Great Northern Railway Company, and the latter company delivered to the appellant company, the delivering carrier. It was proven that the goods en route were damaged by water. The appellee Erambert brought the suit for damages against the steamship company, the International & Great Northern Railway Company and the Texas & Pacific Railway Company. The initial carrier was not a party to the suit. Judgment was entered for appellee against the Texas & Pacific Railway Company, and in favor of the two other defendants.
    The evidence shows, without dispute, that on April 1 and 2, 1914, the steamship having the shipment on board encountered a violent hurricane at sea, which by its force caused the porthole to loosen, and sea water was forced into where the cargo was, damaging the present shipment. It was shown that the vessel was in all respects seaworthy, properly manned and equipped. There is no other injury shown to the shipment besides that done by the storm waters. There is no negligence shown on the part of appellant company.
    W. B. Figures, of Atlanta, for appellant. Hill Stewart and O’Neal & Allday, all of Atlanta, and E. N. Spivey, of Texarkana, for appellees.
   LEVY, J.

(after stating the facts as above). Error is predicated upon the ruling of the court in 'hot granting a new trial. It is insisted that the evidence does not show that the damage to the goods occurred on the line of appellant company and through any negligence on its part, it being the delivering carrier. The evidence, as appears in the record, only shows that while the goods were in the possession of the steamship company, an intermediate carrier, they became damaged by sea water while a violent hurricane at sea was raging, and that the damage was through no fault on the part of the steamship company or its employes. Finding, as the court did, in favor of the steamship company involves the finding of fact that the damage to the goods, occurring while in the possession of the steamship company, was unavoidable through an act of God. The law relieves the steamship company, under the facts, of liability for the damage. Section 8031, 3 U. S. Compiled Statutes of 1913. And as the damage was the result of the storm, the delivering carrier, being innocent and without fault respecting the damage, could not be held liable.

Consequently, according to the record, the proof fails to support the judgment in favor of appellee against the appellant company, and said judgment is therefore reversed, and the cause remanded.
      «SssFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HODGES, J.

text:
    NALLS v. McGRILL et al.
    (No. 1574.)
    (Court of Civil Appeals of Texas. Texarkana.
    Feb. 24, 1916.)
    1. Novation <&wkey;5 — Substitution oír Pasty.
    The grantee of a widow, who agreed to support her for life, she thereafter agreeing to his sale to a third person and the latter’s substitution as the party who was to support her, was relieved from his obligation and was not liable to the widow for his grantee’s breach.
    [Ed. Note. — For other cases, see Novation, Cent. Dig. § 5; Dee. Dig. <S=5.]
    2. Judgment <&wkey;251(l) — Suppobt by Pleadings — Necessity.
    In a suit for breach of contract, where plaintiff pleaded no facts entitling her to a personal judgment against a defendant, though the evidence showed that he was personally liable to her, such a personal judgment could not stand, since evidence cannot form the basis of a judgment, though admitted without objection, in the absence of appropriate pleadings.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 437; Dec. Dig. &wkey;251(l).]
    Appeal from District Court, Hopkins County; Wm. Pierson, Judge.
    Suit by D. E. McGrill against W. A. Smith and B. S. Waldrop, in which S. A. Nalls intervened. From a judgment for plaintiff against Smith and Waldrop, and for the in-tervener against Waldrop, the intervener appeals.
    Affirmed.
    R. D. Allen, of Sulphur Springs, for appellant. J. A. Dial, of Sulphur Springs, for ap-pellees.
   HODGES, J.

In January, 1912, the appellant, S. A. Nalls, was the owner of a tract of 38% acres of land situated in Hopkins county. She was an aged widow, and was desirous of making some arrangements for securing her support and maintenance during the remainder of her life. On the 29th of January of that year, she conveyed her land to W. A. Smith, one of the appellees on this ajipeal. The following is the consideration recited in the deed: .

“I, S. A. Nalls, of the county of Hopkins and state of Texas, for and in consideration of one W. A. Smith taking me to his home and providing for me and taking good care of me the
remainder of my life, have granted, sold and conveyed, and by these presents,” etc.

On December 28, 1912, Smith conveyed the same land to B. S. Waldrop in consideration of two notes for $105 each executed by Waldrop and payable to Smith. In each of the notes a vendor’s lien was reserved to secure their payment. These notes were afterwards transferred to the appellee Mc-Grill, who, on the 9th of January, 1915, filed this suit against Smith and Waldrop asking for judgment and the foreclosure of his vendor’s lien. The answers of Smith and Wal-drop presented no contest to the suit of Mc-Grill. Before the trial the appellant intervened, and alleged, in substance, as follows: That she had theretofore conveyed the land upon which McGrill claimed a lien to W. A. Smith in consideration of his undertaking her support and maintenance for the remainder of her life, and upon his representations that he would faithfully carry out that undertaking; that Smith had failed and refused to perform his agreement, and had, without her knowledge or consent, sold the land to B. S. Waldrop; that both Wal-drop and McGrill had both actual and constructive notice of the consideration to be paid by Smith, and the condition upon which he acquired the title. It was further alleged that Smith entered into the agreement with the intervener to support her with no intention of performing it, but with the fraudulent design of depriving her of her land. She prays for a recovery of the land and a cancellation of the deeds from her to Smith and from Smith to Waldrop, and that portion of 'the note held by McGrill which expressed a lien upon her land, as clouds upon her title. By way of alternative pleading, she alleged her age and life expectancy, and that $10 per month was reasonably necessary for her support the remainder of her life, and asked judgment against Smith alone for $1,-020 as damages and a foreclosure of an equitable lien on the premises conveyed. She also asks that her lien be declared superior to the vendor’s lien asserted by McGrill. In a trial before the court without a jury, personal judgment was rendered in favor of Mc-Grill against Waldrop and Smith for the amount of the notes, together with the foreclosure of the vendor’s lien upon the land. Judgment was also rendered in favor of the appellant against Waldrop for $230 as damages, and a foreclosure of a lien upon the same tract of land; but this lien was subordinated to that held by McGrill. The intervener alone has prosecuted an appeal.

It is urged that the court erred in refusing to render a personal judgment in appellant’s favor against Smith for the damages resulting from his failure to furnish her the,support contracted for. According to the testimony of Smith and Waldrop, the appellant agreed at the time the transaction occurred that Smith might convey the land to Waldrop for the consideration stated — that is, the two notes executed by Waldrop — and that Wal-drop might be substituted for Smith to support the appellant the remainder of her life. While the appellant denied that she consented to this arrangement and transfer of the property, she admits that she knew that it had been done, and that she had lived with Waldrop several months without having made any objection to the change. The testimony presented an issue of fact which the court determined against the appellant.

While the contract entered into by Smith to support the appellant was not assignable in law, it was one from which he might have been released by her consent. If it be true, as stated by Smith and Waldrop, that the appellant agreed to the sale to Waldrop, and to the substitution of Waldrop as the party who was to support her in the future, it follows that Smith was relieved of any further obligation in that respect, and appellant had no claim against him for Waldrop’s failure. Ascarete v. Pfaff, 84 Tex. Civ. App. 375, 78 S. W. 974, and cases there cited.

It is also insisted that the court should have rendered a judgment against Waldrop for the sum of $880, which it is claimed is $10 per month for the life expectancy of the appellant as shown by the tables of mortality introduced in evidence. A sufficient answer to this contention is that the appellant pleaded no facts which entitled her to a personal judgment against Waldrop for any sum. While the evidence shows that Waldrop by agreement undertook her support and maintenance, and failed to carry out that undertaking, there is no pleading to support any relief based upon such a breach of contract. Evidence cannot form the basis of a judgment, although admitted without-objection, in the absence of appropriate pleadings. W. U. Tel. Co. v. Smith, 88 Tex. 9, 28 S. W. 931, 30 S. W. 549; San Antonio, etc., Ry. Co. v. Flato, 13 Tex. Civ. App. 214, 35 S. W. 859. This also would seem to be an answer to appellant’s further contention that her lien should have been given precedence over that awarded to B^cGrill. If under her pleadings she was entitled to no judgment against Waldrop, and under the facts to none against Smith for damages, there was no basis for a judgment foreclosing any lien in her favor. Hence there was no error of which she has any right to complain.

The judgment is therefore affirmed.
      <g=3For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    YATES et al. v. CRADDOCK et al.
    (No. 1561.)
    (Court of Civil Appeals of Texas. Texarkana.
    Feb. 3, 1916.)
    1. Witnesses <&wkey;139(9) — Competency — TRANSACTION WITH DECEDENT.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3690, providing that in an action by heirs arising out of a transaction with decedent neither party can testify against the others to a transaction with decedent, plaintiff suing for land as heirs, defendant cannot testify to a purchase from deceased.
    [Ed. Note. — Por other cases, see Witnesses, Cent. Dig. § 590; Dec. Dig. <&wkey;139(9).]
    2. Descent and Distribution <&wkey;30 —Parents and Brothers.
    By express provision of Vernon's Sayles’ Ann. Civ. St. 1914, art. 2461, one dying intestate without surviving spouse or children, her lands descend half to parents and half to sisters and brothers.
    [Ed. Note. — Por other cases, see Descent and Distribution, Cent. Dig. §§ 84-90; Dee. Dig. <&wkey;>30.]
    3. Bastar-ds <&wkey;104r-CAPACiTY to Inherit.
    Under Vemon’s Sayles’ Ann. Civ. St. 1914, art. 2473, providing that bastards can inherit from and through their mother, bastards of the same mother may inherit from each other.
    [Ed. Note. — Por other cases, see Bastards, Cent. Dig. §§ 251, 257-262; Dec. Dig. &wkey; 104.]
    Appeal from District Court, Titus County; J. A. Ward, Judge.
    Action by Emma Tates and others against Lucy Craddock and another.. Judgment for defendants, and plaintiffs appeal.
    Reversed and remanded for new trial.
    Appellants sought to have partition made of a certain described tract of land, claiming that they owned a three-fourths and Lucy Craddock a one-fourth interest in the same. Lucy Craddock and her husband answered, denying that appellants had any interest in the land, pleaded in bar the ten-year statute of limitation, and by cross-action sought to recover the title to the land, averring that 'they had purchased the land of Emeline Stewart in virtue of a parol contract duly performed to take care of, feed, and clothe the aged parents of Emeline Stewart, and had gone into possession of the same, made valuable improvements, and had paid all taxes thereon. There was a trial before the court, and judgment was entered in favor of defendants for title and possession of the land.
    It was shown that Emeline Stewart, the owner of the land, died intestate in 1904. She was a widow without children. Adeline Turner was the mother of Emeline Stewart, and she died in 1913. Plaintiffs Turner and Bailey are the sister and brother, and plaintiff Tates is the niece, of Emeline Stewart. Defendant Lucy Craddock is the sister of Emeline Craddock. There is some evidence admitting of the inference that all of the above children of Adeline Turner were ’bastards. The evidence in respect to the entire case will not be set out:
    Seb P. Caldwell, of Austin, for appellants. J. M. Burford, of Mt. Pleasant for appellees.
   LEVY, J.

(after stating the facts as above). The defendant Alex Craddock offered to testify in behalf of himself and wife in support of the allegations of their cross-action that Le and his wife, Lucy Craddock, Lad a parol agreement witL Emeline Stewart of purcLase of tLe land in suit, agreeing with Emeline that they would take care of, feed, support, and care for her mother, Adeline Turner, as long as the mother should live, in consideration of the land. The plaintiffs objected to the evidence as being a transaction with a decedent and incompetent under article 3690, R. S. The court overruled the objection, and the witness testified at length concerning a purported parol agreement with Emeline Turner about the acquisition of the land, which is fully shown in the bill of exception. The court qualifies the bill as follows:

“The evidence showed that Adeline was a slave, and during her bondage Emeline Stewart was born, and some of the others who are parties to this suit. Emeline Stewart died prior to the death of her mother. Adeline Turner inherited the whole estate of her illegitimate daughter Emeline Stewart, and, if the other parties to this suit had any interest in the land by inheritance, it was as heirs of Adeline Turner, and not of Emeline Stewart, and the trade between Alex Craddock and Emeline Stewart was not within the inhibition of the statute.”

It would appear plainly stated that the court deemed the evidence admissible upon the ground that illegitimate sisters and brothers may not legally inherit from each other. The evidence is clearly inadmissible under the terms of the statute, and it is believed the court erred in admitting it. Article 3690, Vernon’s Sayles’ Stat.; James v. James, 81 Tex. 376, 16 S. W. 1087. Upon the death of Emeline Stewart the title would descend one portion to the mother, and the other portion to the sisters and brother or their descendants. Article 2461, Vernon’s Sayles’ Stat. And bastard children of the same mother may inherit from each other. Article 2473, Vernon’s Sayles’ Stat.; Berry v. Powell, 47 Tex. Civ. App. 599, 105 S. W. 345; Berry v. Tullis, 105 S. W. 348. Therefore Adeline Turner, the mother, could not have inherited the whole of the land at the death of Emeline Stewart. As the cross-action was only sustainable upon this evidence, and as the judgment was entered on the cross-action, the error, it is concluded, was prejudicial and ground for reversal.

Judgment reversed, and cause remanded for another trial.
      <&wkey;>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    FIRST TEXAS STATE INS. CO. v. BELL.
    (No. 1565.)
    (Court of Civil Appeals of Texas. Texarkana.
    Feb. 23, 1916.
    Rehearing Denied March 9, 1916.)
    1. Insurance is&wkey;515 — Life Insurance — Deferred Risk — Statute.
    Under Rev. Civ. St. art. 4742, subd. 3, declaring that no policy of life insurance shall be issued providing for any mode of settlement at maturity of less value than the amounts insured on the face of the policy, plus dividends, and less any indebtedness on the policy, etc., a stipulation in a policy, that if insured should die from heart disease within one year from its date the insurer’s liability would be limited to one-fourth of the principal sum named, was unenforceable and presented no defense to a claim for the full amount of the policy.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1300-1302; Dec. Dig. &wkey;515.]
    2. Appeal and Error <&wkey;1064(2) — Harmless Error — Statutory Defense.
    In an action on a policy of life insurance, a charge, assuming that there was no evidence that the deceased had died from heart disease under conditions making a provision of the policy for the payment of only a quarter of the principal sum applicable, was harmless, where the testimony was not sufficient to support a finding upon the issue in the insurer’s favor.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4221, 4222; Dec. Dig. <&wkey;> 1064(2).]
    Appeal from Harrison County Court; Geo. B. Hufman, Judge.
    Action by Sam Bell against First Texas State Insurance Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Bibb & Bibb, of Marshall, for appellant. Cary M. Abney and M. M. O’Banion, both of Marshall, for appellee.
   HODGES, J.

This appeal is from a judgment in favor of the appellee for the sum of $187.50, the balance due upon a policy of life insurance. It appears from the evidence that the appellant had issued a policy of insurance upon the life of Ella Bell for $250, in which the appellee was named as the beneficiary. There was a stipulation, however, containing, in substance, the following provision: That if the insured should die from cancer, pulmonary disease, or any disease of the heart, and certain other diseases, or that any such disease contributed to cause the death of the insured within one year from the date of the policy, the liability of the company was to be limited to one-fourth of the principal sum named. It was alleged by the appellant in its defense that Ella Bell, the insured, died within one year from the date of the policy of a disease of the heart, and therefore the appellee was not entitled to receive more than $62.50, one-fourth of .the face of the policy. The only defense presented on this appeal is a settlement with the appellee under the terms of the provision above referred to. It appears that he had accepted $62.50 at one time in full settlement of his claim against the company. It was alleged by him in his petition that this settlement was brought about through ignorance on his part, and fraud on the part of the company; that the provisión of the policy which authorized it was void because in contravention of a statute of this state. The sufficiency of the evidence to sustain these averments of fraud in procuring the settlement is not questioned on this appeal.

The first error assigned complains of a portion of the court’s charge, which in effect assumed that there was no evidence tending to show that the deceased had died of a disease of the heart under conditions which made the clause of the policy above referred to applicable. The third subdivision of article 4742 of the Revised Civil Statutes condemns stipulations of that character. That article was fully discussed and applied by Associate Justice Lana in First State Ins. Co. v. Smalley, 185 S. W. —, not yet officially reported. It is there held that such provisions are not enforceable and present no defense to a claim for the full amount of the policy. We deem further discussion of that subject unnecessary. But the state of the evidence in this case is such that, even in the absence of such a statute, the charge was harmless, because the testimony was not sufficient to support a finding upon that issue in appellant’s favor.

The second assignment of error complains of that portion of the court’s charge which permitted a recovery of attorney’s fees and 12 per cent, damages. It is contended that the evidence was insufficient to authorize the submission of that issue to the jury. We have examined the evidence, and agree with the trial judge that the issue was raised by the evidence.

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


author: LEVT, J.

text:
    FIRST TEXAS STATE INS. CO. v. PIPE.
    (No. 1553.)
    (Court of Civil Appeals of Texas. Texarkana.
    Jan. 13, 1916.)
    Costs <&wkey;260(3) — Appeal—Delay—Damases.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1629, and Court of Appeals rule 43 (142 S. W. xiv), plaintiff in error not appearing by brief, and defendant in error filing a brief and suggesting an appeal for delay, and an examination of the record sufficiently showing it to be a case of delay, judgment will be affirmed, with 10 per cent, damages on the amount in dispute.
    [Ed. Note. — For other eases, see Costs, Cent. Dig. § 985; Dec. Dig. &wkey;260(3).]
    Appeal from Fannin County Court; S. F. Leslie, Judge.
    Action by John Pipe against the First Texas State Insurance Company. Judgment for plaintiff, and defendant brings error.
    .Affirmed.
    Reasonover & Reasonover, of Denison, for plaintiff in error. J. W. Gross, of Bonham, and D. IT. Oabeen, of Honey Grove, for defendant in error.
   LEVT, J.

The suit is upon a life insurance policy, and judgment was entered in favor of defendant in error for the amount of the policy, interest, damages, and attorney’s fees. Plaintiff in error does not appear by any brief, and defendant in error files a brief and suggests an appeal for delay. An examination of the record sufficiently shows that it is a case of delay. The judgment is affirmed, and with 10 per cent, damages on the amount in dispute. Rule 43 (142 S. W. xiv); article 1629, Vernon’s Sayles’ Stat.