author: DUNKLIN, J. CONNER, C. J.

text:
    TEXAS CENT. R. CO. v. HAWKINS.
    (Court of Civil Appeals of Texas. Ft. Worth.
    Dec. 13, 1913.
    Rehearing Denied Jan. 31, 1914.)
    1. Limitation or Actions (§ 31) — Personal Injury Action.
    The two-year statute of limitations was applicable where the gist of the action was for damages for personal injuries, and the case was submitted on that theory, though the petition also alleged that a settlement made with defendant was procured by fraud, and asked that it be set aside; such allegations having merely anticipated that defense, and not making the four-year limitations applicable.
    [Ed. Note. — Eor other cases, see Limitation of Actions, Cent. Dig. § 142; Dec. Dig. § 31.]
    2. Limitation or Actions (§ 55) — Time or Running — Personal Injuries.
    _ The two-year limitations began to run against an action for damages for personal injuries from the date of plaintiff’s injuries, or at least from the time he had a third stroke of paralysis resulting from the injuries, when he discovered that the representations made to him by defendant that he had completely recovered were not true.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 299-306; Dec. Dig. § 55.]
    Conner, C. J., dissenting.
    Appeal from District Court, Erath County; W!. J. Oxford, Judge.
    Action by A. G. Hawkins against the Texas Central Railroad Company. Prom a judgment for plaintiff, defendant appeals.
    Reversed, and judgment rendered for defendant.
    J. C. George, of Brownsville, Spell & Sanford, of Waco, and Marshall Ferguson, of Stephenville, for appellant. Hamilton & Kib-ler, of Waco, and J. B. Keith, of Stephenville, for appellee.

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

   DUNKLIN, J.

The Texas Central Railroad Company, defendant in the trial court, has appealed from a judgment rendered in favor of A. G. Hawkins, plaintiff, for the sum of $8,000, as damages for a personal injury sustained by the plaintiff while he was performing the duties of conductor of one of defendant’s passenger trains.

Briefly stated, plaintiff’s injury occurred in the following manner: At the sta.tion Clairette, where the train upon which plaintiff was employed stopped, it became necessary for plaintiff, in the discharge of his duties, to leave the train and go forward on foot, and, after he had signaled his train to start again, and while the same was in motion, he attempted to board it, when his foot came in contact with a stone lying between defendant’s main line and siding, and near the track upon which the train was running, thereby causing the plaintiff to stumble and fall upon tbe track between the coaches. In falling his head was injured by striking the rail, and in extricating himself he received other injuries to his back by coming in contact with a bolt of iron which projected from one of the coaches. The accident happened during the night, and, on account of the darkness, plaintiff did not observe the stone until after he had stumbled upon it; and it was charged in the petition that defendant was guilty of negligence in permitting the stone to be at that place. The accident occurred on September 14, 1906. For approximately two months after the accident plaintiff was unable to do any work; but on the 26th day of November, 1906, he settled with the defendant his claim for damages for such injury, receiving as a consideration for such settlement the sum of $322.55, and shortly thereafter resumed his duties as a conductor.

In his petition plaintiff alleged the compromise and settlement, but sought to have the same annulled, upon the ground that he was induced to make it upon the representations made to him by defendant’s elaim agent, R. M. Oox, and by Dr. W. O. Jones, defendant’s chief surgeon, in whom plaintiff had confidence, “that he had entirely recovered from said injury, that said injuries had been trivial, and were not of a permanent nature, that plaintiff was sound and. well, and that said injuries would not in any way interfere in the future with his pursuing his avocation as railroad conductor or trainman.” It was further alleged that the representations so made were untrue, and known by Oox and Jones to be untrue at the time they were made, and were made for the purpose of inducing plaintiff to execute said contract of settlement. It was further alleged that, after he had resumed his duties of conductor, and had worked 11 months, he sustained a stroke of paralysis as the result of his injuries, and on account of his physical and nervous condition at the end of that period he accepted the position of station agent at the town of Dublin, in which position he served for about 18 months. At the termination of the latter period he again resumed his duties as passenger conductor, and continued in that employment until November 22, 1911, when he was discharged on account of his physical inability to perform the duties of conductor. It was further alleged that he had two other strokes of paralysis following the one first above mentioned, and that the injuries he sustained in the accident were permanent, and had incapacitated him, and will for the remainder of his life incapacitate him, for pursuing his avocation of train conductor, or railroad man, or any other character of manual labor. The petition contains this further allegation: “That, had the plaintiff known his true condition at the time said settlement was made, and had he known that he would never recover from said injuries, nor be able to perform the duties of passenger conductor, plaintiff would not have made said settlement, nor executed said release. That the amount paid the plaintiff in settlement for said injuries was wholly and grossly inadequate to compensate him for the damages he has sustained by reason of said injuries. That the plaintiff, fully relying upon the representations of the defendant so made to him, as hereinbefore set forth, did not know that said injuries would incapacitate him to perform the duties of passenger conductor until the said 22d day of October, 1911, when he was advised by the defendant’s general manager that he was physically unable to perform such duties.” The petition concludes with the following prayer: “Wherefore, premises considered (the defendant having already answered herein), plaintiff prays that said release so executed by him be set aside and held for naught, and that he have judgment over against the defendant for his said damages in the sum of $60,250; that the sum so paid by defendant to plaintiff at the time said release was executed be deducted from whatever amount plaintiff recovers herein, and for all other and further relief to which plaintiff may show himself entitled, either at law or in equity, and in duty bound will ever pray.”

The release so executed by the plaintiff is as follows:

Accounts Payable.
Texas Central Railroad Company to A. G. Hawkins, Date of voucher made, Nov. 26, 1906. Waco, Texas.
Date liabilities incurred. In full and final settlement for any and all claims of every nature account personal injuries received at Clairette, Sept. 14th, 1906, as per papers in P I Pile 456, including expenses, doctor’s bills, etc. $322.55
Examined and approved. R. M. Cox, Supt. Examined and audited. S. H. McCartney, Auditor. Approved for payment. C. Hamilton, V. F. & Geni.' Mgr.
Received 190-, of the Texas Central Railroad Company, three hundred and twenty-two & 55$ dollars, in full, for the above account.
Witness: R. M. Cox. . A> G’ Hawkins-
Witness: H. O. Whatley.
$322.55.
A Release in Full.
In consideration of the sum of $322.55 dollars, this day paid to me by Texas Central R. R. Co., I hereby release said Texas Cent. R. R. Co. from all claims, demands, and causes of action against it which may have accrued or may hereafter accrue to me for all damages of every nature whatsoever received in and resulting from an accident near Clair-ette, Texas, on the 14th day of September, 1906, in which I was injured in this manner and effect: Back and side bruised; back of head cut and bruised. Said sum is accepted by me in settlement for all damages, injuries, and disabilities which may hereafter result from said accident, as well as for those now known to have been caused thereby. It is expressly agreed and understood and agreed that said sum is paid and accepted, not only for time and wages lost, expenses incurred, and property damaged and destroyed, but also in full and final settlement of all claims of every nature caused by said accident. To secure this settlement and the payment of said sum, I hereby represent to said company that I am twenty-one years of age, and that I rely wholly upon my own judgment, belief, and knowledge of the nature, extent, and duration of said injuries, disabilities, and damages, and that no representations or statement about them made by said company’s surgeons or agents have influenced me in making nor induced me to make this settlement. No promise of employment nor other agreement not herein expressed has been made by said company, nor by any of its agents or other ern/ployés.
Witness my hand at Waco, Texas, this the 26th day of November, 1906. A. G. Hawkins.
Witness: R. M. Cox.
H. O. Whatley.
State of Texas, County of McLennan.
Before me, the undersigned authority, in and £or said state and county, on this day personally appeared A. G. Hawkins, known to me to be the person whose name is subscribed to the foregoing instrument, and, being duly sworn on oath, states that he executed the same for the purposes and consideration therein expressed, that he has read it, fully understands its meaning and effect, knows that it is an unconditional release in full, and that he voluntarily executed it as such.
Given under my hand and seal of office this the 26th day of November, 1906.
[Seal.] H. O. Whatley,
Notary Public in and for McLennan County, Texas.
The court instructed the jury as follows:
“(5) Upon the issue of release, you are instructed, gentlemen, that, if you believe from the evidence that, at and prior to the time the defendant executed the release exhibited in evidence, R. M. Oox, who was acting as claim agent for defendant, and Dr. W. C. Jones, the defendant’s chief surgeon, or either of them, represented to the plaintiff that he had recovered, and that his said injuries were not of serious or permanent nature, and that plaintiff was sound and well, and that said injuries would not interfere in the future with his pursuing his avocation as railroad conductor or trainman, and if you further believe from the evidence that said Oox and Jones, or either of them, made such representations for the purpose of inducing the plaintiff to execute said release, and that- the plaintiff relied upon said representations, and was induced thereby to execute such releasq, and if you further believe that such representations, if any, made by the said Oox and Jones, or either of them, were in fact untrue, and if you further believe that the sum paid plaintiff in said settlement as the consideration for said release and acquittance was grossly inadequate to compensate plaintiff for the injuries sustained by him, if you believe he was injured as alleged ■by the plaintiff,- then in such event, if you so find, said release would not be binding upon the plaintiff.
“(6) On the other hand, if you should believe from the evidence in this case that R. M. Oox nor Dr. Jones, and neither of them, made representations to the plaintiff in regard to his physical condition which were ■untrue to induce him to sign said release, if plaintiff did not believe nor rely on said representations, if any were made, and if you further believe from the evidence that he signed the same freely and voluntary, without any misrepresentation on the part of either of said men which induced him to do so, then he cannot recover in this case, and this although you may believe from the evidence that the sum paid him for said release was grossly inadequate.”

By the first assignment of error, appellant insists that it was shown by uncontroverted evidence that plaintiff’s cause of action was barred by the two-year statute of limitation, which statute was pleaded by the defendant, and that the court erred in refusing a requested peremptory instruction in defendant’s favor for that reason. The trial court applied the two-year statute of limitation by instructing the jury that a verdict should be returned in defendant’s favor, if they should find that the suit was not instituted within two years from the time plaintiff knew, or by the exercise of reasonable diligence could have known, the nature and extent of his injuries. The suit was instituted January 2, 1912, while, as noted already, the injuries occurred September 14, 1906, and plaintiff alleged in his petition that he did not discover the nature and extent of his injuries until November 22,1911. Appellee insists that, the four-year statute of limitation being the only statute applicable to a suit to set aside a contract procured by fraud, and as he sought in his original petition to cancel the release, the four-year statute would be the only statute of limitation applicable. To more definitely understand his contention, we quote the following from .his brief: “The thing which appellee parted with in this ease was his cause of action. It should be restored upon cancellation of the release unimpaired, and would of necessity be governed by the same period of limitation as is the action to annul. We submit that the action to annul and the value of said cause of action would be ascertained and tried under the same allegations that were made in the case at bar.”

We are unable to concur in this contention. Appellee has cited the cases of McCord v. Nabours, 101 Tex. 494, 109 S. W. 913, 111 S. W. 144, Cooper v. Lee, 75 Tex. 114, 12 S. W. 483, Evans v. Goggan, 5 Tex. Civ. App. 129, 23 S. W. 854, Railway v. Titterington, 84 Tex. 218, 19 S. W. 472, 31 Am. St. Rep. 39, and other decisions of our Courts of Givil Appeals, none of which, in our opinion, sustain his proposition.

The language used in the opinion -in the case of Evans v. Goggan, supra, is especially urged by appellee in support of his contention. In that case the plaintiff sought to cancel a written contract executed by him for the purchase of a piano, and for the recovery of the amount paid by him in part consideration for the sale. It was alleged that the contract was procured by fraudulent representations made by the dealer. The judgment was reversed, because the court applied the statute of two-year limitation to the -plaintiff’s cause of action for the money paid on the contract, and used the following language: “The suit was for rescission of the contract, and upon judgment of that character the consequences of rescission would follow. The question was: When would the right to a rescission he barred? The statute does not specifically provide for it but provides that every other personal action ‘for which no limitation is otherwise prescribed shall be brought within four years next after the right to bring the same shall have accrued, and not afterward.’ Rev. St. 1879, art. 3207. It has been decided that the statute of four years applies to an action for rescission of a contract consummated in fraud. Cooper v. Lee, 75 Tex. 114, 12 S. W. 483. If, then, the plaintiff is entitled to a rescission, and is not barred by limitation in that action, he would be entitled to complete restoration of his rights upon rescission. The amount paid on the contract should be restored to him, and its recovery would not be governed by a different period of limitation from that which would govern the action itself. The two-year statute, as for debt, or open account, or money had and received, would not apply.” In that case, however, the gist of the action was for damages for fraud and deceit, and the amount of money paid in part consideration for the piano was but the measure of damages in part to be applied in the event the allegations of fraud and deceit were established. In other words, there was but a single cause of action.

The case of Railway v. Titterington, supra, was a suit to cancel a deed for right of way to a railroad company on the ground of fraud practiced in the procurement of that instrument, and in that case our Supreme Court said: “The deed not being -void, it would seem to follow that the suit should not be considered as an action to recover land. Prima facie the deed conveys title to the land, and the title remains in the grantee, unless the deed is set aside for fraud or other adequate cause for avoiding the contract. We think that the primary purpose of the present suit is to cancel the deed upon the ground of fraud, and, though a judgment for the land itself is asked, still, if this prayer should be granted, it would be rather as a result of the other relief, which must first be granted, than as the purpose for which the suit was brought. The land could not be recovered without first attacking directly and annulling the deed for fraud. That was the main purpose of the suit, and fixes the character of the action. The action is personal, and is entirely predicated upon the right to vacate the deed.” In this case, as in Evans v. Goggan, there was but one cause of action, and the recovery of the land was an incident which necessarily followed from a cancellation of the deed, and no additional evidence or pleading was necessary to recover the land.

The gist of the present ease is for damages for the injuries the appellee sustained in the accident noted, and upon that he recovered, as shown by the charge of the court upon the measure of damages, notwithstanding the fact that, in order to enable him to recover, the jury determined that the contract of settlement was procured by fraud, and should therefore be annulled. The allegations in plaintiff’s petition that the settlement was procured by fraud, and should therefore be set aside, was but an effort to anticipate that defense to the action for the injuries, and we can perceive no difference in thus anticipating the defense in his original petition, and in alleging the same matters in a supplemental petition in reply to a plea by the defendant setting up said release as a defense to the action for the injuries. After plaintiff offered the evidence upon which he relied to set aside the release, he still had the burden of establishing his cause of action for damages for the personal injuries he had sustained in the accident occurring before the settlement was made, which was a cause of action separate, and distinct, and independent of the grounds upon which he relied to set aside his release. It involved the issue of liability upon the part of the railroad company of contributory negligence and all the issues incident to a suit of that character. After the compromise, in order to recover, plaintiff had the added burden to set aside the release, and this is the only difference between the suit instituted and that which would have been instituted if the release had not been executed.

Plaintiff testified that he had a light stroke of paralysis in 1907 another stroke in March, 1908, and a third stroke in October, 1908. He further testified as follows: “Just a few days before this settlement I met Dr. Jones in Walnut Springs, and I think Mr. R. M. Oox was there too. I think we were at the depot. And Dr. Jones informed Mr. Cox and mySelf that I had been getting along nicely, and ready to resume work, and his opinion was I would be sound and well as ever was in my life. Mr. Oox told me there, if I would come over to the office the following day, he would be there, and we would have some kind of a settlement. So I went over there, and he said, ‘You understand what the doctor said; he said you are going to get along all right.’ And said, ‘If you are ready to settle, I am ready.’ And we made settlement. Neither Mr. Jones or Mr. Cox said anything about my ailment interfering with my services as conductor. They both seemed to think I had fully recovered. That was the impression I had. That is the way I understood Dr. Jones to say, that I was entirely well, and had recovered from the in-, jury. I think I had known Mr. Cox and Dr. Jones since 1883. My relation with them had been agreeable and friendly. Mr. Oox was superintendent and claim agent at that time. Dr. Jones at that time was chief surgeon of the Texas Central. I had the utmost confidence in them. I believed these representations they made to me. These statements induced me to mate the settlement. Had I known at the time that my injuries were permanent, and would in a few years incapacitate me to serve in my duties, X would not have made it for the amount of money. November 23, 1911, was the first time I ever had any knowledge of the facts that I would be physically unable to perform the duties of a conductor or trainman. * * * • I didn’t know at the time of my injury the extent of it. I knew that paralysis was usually permanent. When I had the second attack in 1908 I was more apprehensive that it was permanent. When I had the third stroke in I never did get over that. I knew then I was permanently injured.” After testifying that he recovered from the first two strokes, he testified: “I had the worst stroke in October or November, 1908. I never have gotten over that one, and I don’t think I ever will. * * * Since I got this injury in my back and head I don’t believe I have ever gotten a solid night’s sleep. * * * I never did get well. My back kept hurting. Kept hurting right on every time I would stoop or try to lift anything, or try to chop, or jerk a horse, or anything that way. It kept hurting me until the stroke of paralysis. And after I had the first stroke it just kept hurting until I had the second one, and X knew it was still hurting and believed it was hurting from that injury. I had no doubt of it. When this paralysis came I thought that was on account of this hurt. When the first stroke came I so thought, and when the second stroke came I still thought that was the cause, and I kept on until the third stroke, and I still thought that was the cause. And when Dr. Bailey was rubbing me, and when he was dragging my foot, and the condition of my arm not like the other, I thought that was caused from the lick in the back. I never had attributed the injury to anything but that lick in the back. And I thought all along the injury I was suffering from was caused by this trouble.”

Dr. Gr. F. Bailey, witness for plaintiff, testified that he began treating Hawkins December 1, 1908, and that his treatment extended to the 26th of the same month. He testified: ‘T treated him for a form of paralysis, difficulty in his stride or walk, and also in his articulation. He had rather a stiffness in the muscles of his back and limbs so as to interfere with his walking, a stiffness of the muscles. At the time he seemed to me he was incapacitated for almost any service, because he could not walk only a short distance without great effort, and it seemed to tire him quite a good deal, and his speech seemed to be very much interfered with; seemed to be labored. His condition was as I have stated when I commenced treating him, but he seemed to improve by the treatment; that is, he could walk better, articulate better. * * * I found evidence of an injury to Hawkins. I found an injury in the lower part of the spine, known as the lumbar region, and also one in the upper part of the spine, known as the cervical region, with a very decided muscular contraction of the deep spinal muscles. His condition as I found it was attributed by me to the injuries that I found— it is my opinion that the conditions I found were due to the injuries mentioned.”

.The statute of two-year linlitation began from the date of appellee’s injuries, September 14, 1906. Conceding that he was induced to execute the release upon fraudulent representations made by appellant’s agents, in effect, that he had recovered from his injuries, it is quite evident that at all events when he had the third stroke of paralysis in October, 1908, he then discovered that the representations so made to him, and which induced him to execute the release, were untrue. To say the least, the statute of limitation again began to run at that time, and more than two years elapsed from that time up to the date of the institution of the suit, which was January 2, 1912. It thus appears from plaintiff’s own testimony that his cause of action was barred by the statute of limitations of two years, and the court erred in refusing appellant’s requested instruction for a verdict in its favor.

For the reasons noted, the judgment of the trial court is reversed, and judgment is here rendered in favor of appellant.

CONNER, C. J.

(dissenting). I have been unable to concur in the conclusion reached by my associates, and as briefly as I can will state the contrary view entertained by me. The majority opinion proceeds upon the theory that, notwithstanding the fact that the evidence may sustain the verdict, to the effect that appellee was originally injured through the negligence of appellant, from which injury he finally suffered loss and damage in the amount of the verdict, and that, for a grossly inadequate consideration, he was induced to release his right by fraudulent means on the part of appellant’s servants, he must nevertheless suffer the loss of such damage merely because of a technical fault in failing to institute his suit for relief in time. The question presented, therefore, is of grave concern, not only to appellee, but to all others in the future who may find themselves in a like situation. It is likewise of serious import to appellant, for, if the two instead of the four year statute of limitations should be-applied, appellant is entitled to that repose and freedom from suit which, on grounds. of public policy, it has been deemed, wise to provide.

It may not be amiss to further premise that appellee alleged that he did not fully know that his injuries would incapacitate him beyond recovery until October 22, 1911, and the jury evidently so found, inasmuch as they returned' a verdict for appellee under the court’s instruction that to recover he must have instituted his suit “within two years from the time it became known to him, or by the use of reasonable diligence he could have known the nature and extent of his injuries.” If this finding has sufficient support in the evidence, it is, of course, conclusive in appellee’s favor on the issue of limitation even as applied by the majority. But, accepting the conclusion of the majority that appellee certainly knew as early as October, 1908, the nature and full extent of his injuries, and hence of the falsity of the representations which induced him to execute the release set out in his petition and copied in the opinion of the majority, the writer nevertheless thinks that it is the four, and not the two, year statute of limitation that should be applied to the circumstances of this ease.

Had appellee declared on his original cause of action alone, it would not have been necessary on the part of appellant to plead the release as a defense. In such case appellee’s petition would have been subject to exception as presenting an action barred by limitation. It was essential, therefore, that appellee go farther. He did so. He set up the release executed by him and the fraud which induced its execution, and sought its cancellation. Had he failed either to allege or to prove the fraud, and thus secure cancellation, his suit must likewise have failed, for the release in that event would have constituted a Bar to his original cause of action. Appellee was therefore forced to plead as he did, and his action was and is essentially one in equity to cancel, with a prayer for relief that restores his rights as they were at the time of executing the release. To this action, as is conceded in the majority opinion, the four-year statute of limitation applies.

There is a class of cases to which the rule of the majority properly applies; but this, I think, is distinguishable from them. Those are cases where the fraud relied upon is of a character that renders the instrument in question void ab initio, as where the instrument has been misread to the parties executing it, or where there has been a surreptitious substitution of one paper for another. In such cases courts of law, as contradis-tinguished from courts of equity, may take cognizance of the question, and treat the instrument as never having had force or vitality — as having at no time constituted an obstruction to a recovery of that which the instrument apparently casts upon another. Courts of law, therefore, proceed upon the theory that limitation begins at the period when the original cause of action arose, and that it never in fact ceases, though perchance it may be suspended by fraud until such time as the fraud was or ought to have been discovered, when the complaining party is again made chargeable with the limitation made applicable by the statute to the original right. This class of cases may be illustrated by the following decisions and authorities therein cited, to wit: Girard v. St. Louis Car Wheel Co., 27 S. W. 648, 123 Mo. 358, 25 L. R. A. 514, 45 Am. St. Rep. 556; I. & G. N. Ry. Co. v. Harris, 65 S. W. 885; Och v. M., K. & T. Ry. Co., 130 Mo. 27, 31 S. W. 962, 36 L. R. A. 442; George v. Tate, 102 U. S. 564, 26 L. Ed. 232.

In the case here, however, the fraud relied upon does not touch the instrument itself. Appellee knew its exact terms and its legal effect, which in terms is fully sufficient to forever discharge any right of recovery upon his original cause of action. The fraud relied upon to defeat the release antedates and is wholly extraneous from its execution. Appellee signed the precise instrument which he intended to sign, and it is voidable only, and not void. - In all such cases the integrity and binding force of the contract must stand until a court of equity sets it aside. -A court of law cannot do so. See the following cases and authorities therein cited: George v. Tate, 102 U. S. 564, 26 L. Ed. 232; State v. Stuart, 111 Mo. App. 478, 86 S. W. 471; Hancock v. Blackwell, 139 Mo. 440, 41 S. W. 205; Vandervelden v. C. & N. W. Ry. Co. (C. C.) 61 Fed. 54. It can make no difference in applying the principle that our courts administer both legal and equitable relief, or that the issues relating to cancellation and those relating to an action for damages are tried at the same time. Nor, as it seems to me, can it be material that the instrument sought to be set aside constitutes a release of damages, or a discharge of a right of action, instead of a conveyance or other form of contract. In either case he has the right to be placed in statu quo.

If the foregoing views as to the character of the release under consideration are correct, it must logically follow that after its execution it operated -until set aside as an insuperable obstacle to appellee’s original cause of action. Until then he had no right of action on the original cause alone. The primary purpose of this suit, therefore, was, as of necessity it must be, if maintainable at all, to cancel the release under consideration. In such cases, in the absence of circumstances not pleaded in this suit, it takes four years to bar the plaintiff’s right, notwithstanding as incidental to the relief of cancellation the plaintiff also seeks as is allowable, the further relief of full compensation for that thing of value which he released to appellant. See C., T. & M. C. Ry. Co. v. Titterington, 84 Tex. 218, 19 S. W. 472, 31 Am. St. Rep. 39.

It is true that appellee might have instituted his suit earlier; but was he compelled to in the absence of any plea on appellant’s part involving a defense of delay other than the two-year statute of limitation? To my mind under such circumstances it is fully sufficient that his suit was instituted, as was done, within four years from the time of his discovery of the fraud, or from the time when, in the exercise of proper care, he should have discovered it.

It is thought that the following decisions of our own courts support the conclusions noted, viz.: McCord v. Nabours, 101 Tex. 496, 109 S. W. 913, 111 S. W. 144; Evans v. Goggan, 5 Tex. Civ. App. 129, 23 S. W. 854; Railway Co. v. lowers, 110 S. W. 946. Quoting from the headnote in the case of McCord v. Nabours, supra, it is said: “In an action to set aside for fraud a sale of corporate stock, and recover dividends collected thereon by the defendant as stockholder, the latter claim, as well as the former, was cognizable in equity, and governed by the limitation of four years instead of two years.” The case of Evans v. Goggan, supra, by the Court of Civil Appeals for the Third District, seems clearly in point. That was a suit for the cancellation of a contract of purchase of a piano, and to recover the amount paid on the ground of the fraud alleged. The fraud charged was not such as rendered the instrument void, and the suit was not only entertained, but the court, in disposing of one of the assignments, used the following language, which has application here: “Appellant complains of a charge of the court which applied the two-year statute of limitation to plaintiff’s prayer for recovery of the amounts paid on the contract upon its cancellation. The charge in this respect was erroneous. The suit was for rescission of the contract, and upon judgment of that character the consequences of rescission would follow. The question was: When would the right to a rescission be barred? The statute does not specifically provide for it, but provides that every other personal action ‘for which no limitation is otherwise prescribed shall be brought within four years next after the right to bring the same shall have accrued, and not afterward.’ Rev. St. art. 3207. It has been decided that the statute of four years applies to an action for rescission of a contract consummated in fraud. Cooper v. Lee, 75 Tex. 114, 12 S. W. 483. If, then, the plaintiff is entitled to a rescission, and is not barred by limitation in that action, he would be entitled to complete restoration of his rights upon rescission. The amount paid on the contract should be restored to him, and its recovery would not be governed by a different period of limitation from that which would govern the action itself. The two-year statute, as for debt, or open account, or money had and received, would not apply.”

If the time at my command admitted, other cases of like character could doubtless be found; but those last cited will illustrate the view I have attempted to present. In each of the cases cited the ultimate object of the plaintiff was to recover money or other thing of value lost by virtue of some contract or instrument sought to be annulled; but the relief so sought was held to be incidental to the cause of action for cancellation, and that the four-year statute of limitation alone was applicable.

Other grounds for reversal have not been considered by the writer; but I feel impelled to conclude that the judgment herein should not be reversed on the ground stated by the majority.


source: Caselaw Access Project

author: HUFF, C. J.

license: Public Domain

text:
    O’DONNELL v. CHAMBERS.
    (Court of Civil Appeals of Texas. Amarillo.
    Jan. 3, 1914.
    Rehearing Denied Jan. 31, 1914.)
    1. Pleading (§ 422) — Signature to Petition — Irregularity—Waiver.
    The failure of the plaintiff or his attorney to sign his petition as required by statute is a mere irregularity, and unless excepted to, or motion made to strike in the lower court, it will be held waived.
    [Ed. Note. — Eor other cases, see Pleading, Cent. Dig. §§ 1414-1417; Dec. Dig. § 422.]
    2. Vendor and Purchaser (§ 270) — Remedy op Vendor — Lien—Foreclosure.
    Where a contract aided by the allegations in the petition evidence an executory contract between plaintiff and defendant by which plaintiff advanced $2,500 to defendant D. to be used in erecting a $2,000 house upon lots then owned by plaintiff, and that if D. repaid the $2,500 as specified in a note for the amount signed by D. and others, plaintiff was to make him a deed to the lots, a default judgment foreclosing a lien on the lots was not error, since plaintiff could either recover the lots or sue on the note and subject the lots and other property to its payment.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 764, 765; Dec. Dig. § 270

    Error to District Court, Lynn County; W. R. Spencer, Judge.
    Suit by J. R. Chambers against T. J. O’Domtell and others. Judgment for plaintiff, and defendant O’Donnell brings error.
    Affirmed.
    H. C. Ferguson, of Lubbock, for plaintiff in error. G. E. Lockhart, of Tahoka, and Synnott & Underwood, of Amarillo, for defendant in error.

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

   HUFF, C. J.

This is an appeal by the plaintiff in error T. J. O’Donnell from a judgment by default rendered' in the district court of Lynn county, in favor of J. R. Chambers, for the sum of $3,423.65, against T. J. O’Donnell, C. E. Brown, and C. H. Doak, and the foreclosure of a lien to secure the purchase money for lots 10, 11, and 12, block 22, Chambers’ addition to the town of Tahoka, Lynn county, Tex. The judgment recites that the defendants were duly cited and made default, and after hearing the evidence the court rendered a judgment. The petition alleges: That T. J. O’Donnell resides in Nolan county, and that C. E. Brown and O. H. Doak each reside in Lynn county, and for cause of action sets up that on the first day of November, 1909, the defendants therein executed a note for $2,-500, with interest thereon from date at the rate of 10 per cent, per annum and providing for 10 per cent, attorney’s fees if suit was brought thereon or if placed in the hands of an attorney for collection. “That at the time of the execution and delivery of said note the defendant and plaintiff entered into the following contract, in writing, to wit: ‘The State of Texas, County of Lynn. We, T. J. O’Donnell and J. R. Chambers, who resides in the said county and state, do on this day enter into the following contract, to wit: Said J. R. Chambers hereby loans to said T. J. O’Donnell the sum of $2,500.00 to be repaid to said Chambers by T. J. O’Donnell on or before one year from this date with ten per cent, interest from date at Tahoka, Texas. Said indebtedness being evidenced by a promissory note executed by said O’Donnell and C. H. Doak and C. E. Brown, in favor of J. R. Chambers. In further consideration of the above loan said O’Donnell hereby agrees and covenants to have erected a dwelling house upon the lot or lots in the Chambers addition to the town of Tahoka, in Lynn county, Texas, before the first day of January, A. D. 1910. Said house to be of the value of about $2,000.00, same to be insured by the said O’Donnell, in favor of the said Chambers. When said O’Donnell repays said Chambers as above stated, said Chambers shall make O’Donnell a good and proper deed of conveyance to said three lots 10, 11 and 12, in block 22, in the Chambers addition to Tahoka, Lynn county, Texas, on which said house is to be built, but in case said Doak or Brown, or both of them, have to pay said note on account of said O’Donnell’s default, then said Chambers shall make the deed to said house and lots to him or them as the ease may be, in trust for said O’Donnell or upon any terms that said Doak and Brown and Chambers may agree upon. But the said Doak and Brown shall be secured by a lien on said house and lots in case they pay off said indebtedness for O’Donnell.’ Signed by T. J. O’Donnell and J. R. Chambers, and witnessed by D. T. Rogers and R. A. Chambers. Plaintiff alleges that said O’Donnell erected a house upon the property above described in' a substantial compliance with the terms of said contract and went into possession of said property; that plaintiff agreed to convey the property above described and has been at all times willing and ready to convey the same to said defendants or either of them upon them or either of them, paying said indebtedness, and plaintiff here tenders to defendants a deed in writing to said property upon the payment of said note, together with all interest and attorney’s fees due thereon. Plaintiff says on account of the execution of the contract and agreement heretofore stated the defendants have or may have some right, title, or interest in or to the property hereinbefore described, but that plaintiff has and is entitled to a lien against any interest, claim, or demand that defendants have or may- be entitled to on account of said indebtedness.”

Certain credits are alleged as having been made, and the amount and the date of payment are set out in the petition, and it is further alleged that plaintiff had placed the notes in the hands of C. E. Lockhart, an attorney, for collection, under an agreement to pay the attorney’s fees stipulated for in the note. The prayer is for judgment for the debt, interest, and attorney’s fees and for a foreclosure of the lien on the above-described land and premises. The petition does not appear to have been' signed by an attorney. It has appended at its conclusion, “ * * * Attorney for plaintiff, J. R. Chambers.” This case is brought up to this court by a writ of error.

Plaintiff in error assigns, first, that the court was in error in rendering judgment because the petition upon which the suit is based was not signed by the defendant in error, was not authenticated by any one or by an attorney representing defendant in error, and that a judgment by default could not be rendered thereon.

It appears to be settled in this state by the courts that a failure to comply with the statute requiring a petition to he signed is only an irregularity and formal requirement which can be amended. In the case of Boren v. Billington, 82 Tex. 137, 18 S. W. 101, Judge Gaines said: ' “The failure to comply with the requirements is an irregularity that may subject the pleading to be stricken out upon motion, or be treated as a nullity by the court; but it is one which does not operate to the injury of the opposing party.” Vilkovitch v. Kleinecke, 33 Tex. Civ. App. 20, 75 S. W. 544; Fidelity v. Lopatka, 24 Tex. Civ. App. 536, 60 S. W. 268; Polnac v. State, 46 Tex. Cr. R. 70, 80 S. W. 381; Zimmerman v. Baugh, 160 S. W. 593; Voorhees v. Eiting (Ky.) 22 S. W. 80. The party filing a pleading is responsible for the allegations therein, and therefore the rule that the pleadings should be signed. It is doubtless required for the protection of the adversary party and the court. The signature adds nothing or takes nothing from the cause of action set forth in the petition. A general exception will not reach a mere formal matter. To hold in the absence of a motion or special exception that a petition should be signed would require greater strictness than is required in criminal cases. Tlie signature of tlie foreman of the grand jury to the indictment is a statutory requirement, but it is held to be formal. The Oourt of Criminal Appeals in a number of cases has held the requirement of the statute should be complied with, but, if not, the omission does not render the indictment invalid. Jones v. State, 10 Tex. App. 552; Weaver v. State, 19 Tex. App. 547, 53 Am. Rep. 389. We think the party who does not move to strike out or except to the pleadings because not signed by an attorney should be held to have waived the defect. We also think the case of Marshal v. Marshal, 30 S. W. 578, a sound one in which the opinion was rendered by Judge Williams while on the Court of Civil Appeals. He therein quotes from the case of Cave v. City of Houston, 65 Tex. 622: “With the means in his power of ascertaining the correctness of the statement made in the citation, the defendant could not wait till a judgment by default was taken, and then, upon appeal to this court, for the first time, set up so slight a defect as the ground for reversing the judgment. If the process is void, the defendant is not required to obey it; but, if merely defective, it brings defendant into court. If he does not then take his exception, at the proper time, he cannot afterwards be heard to urge it as error in this court. Crain v. Griffis, 14 Tex. 358.” Judge Williams, continuing, said: “In the case thus referred to the same rule is laid down, and it is said, in substance, that if the defect was one that might be cured by amendment on motion to quash, the party will not be heard on error to complain, not having objected in the court below. These decisions have been referred to and followed in other cases. Loungeway v. Hale, 73 Tex. 497 [11 S. W. 537]; Id. [73 Tex. 495] 11 S. W. 537; Hale v. McComas, 59 Tex. 487.”

Our Supreme Court holds that the failure to sign a petition was amendable in the court below. The plaintiff in error herein, with the means in his power to have secured the signing of the petition in the court below, should not on so slight an omission be heard to complain for the first time in this court on a writ of error. The apparently casual statement by Judge Hemphill in the case of Hemming v. Zimmerchitte, 4 Tex. 159, that pleadings not signed will be disregarded, has called forth some discussion by the several courts since that case, and in so far as we are informed, with entire accord, they hold that such omission is a formal matter and subject to correction by amendment.

It is also assigned as error that a judgment was rendered, foreclosing a lien on the lots and for the reason that the note, as evidenced by the contract, was for a loan of $2,500, .and that therefore there was no lien retained on the lots in question, to secure the same, but that the title was simply reserved in Chambers. We think the contract,' aided some by the allegations in the petition, evidence an executory contract between O’Donnell and Chambers, by which Chambers advanced $2,500 to O’Donnell to be placed in a $2,000 house to be erected upon the lots owned by Chambers. If O’Donnell paid the $2,500 by the time specified in the note, then Chambers was to make him a deed to the lots. If this was not done, he could have recovered the lots, or, in the alternative, he may sue on the note and subject the lots and other property to its payment. Walker v. Emerson, 20 Tex. 707, 73 Am. Dec. 207; Estes v. Browning, 11 Tex. 244, 245, 60 Am. Dec. 238; Hill v. Still, 19 Tex. 76; Keys v. Mason, 44 Tex. 140-144. Chambers, having elected to treat the lots and improvements thereon as the property of O’Donnell, could sue for the debt due to secure which he had retained title in himself to the lots.' He, by his petition, recognized that plaintiff in error, O’Donnell, had an equity in the lots to the extent of his improvements, and also by going into possession thereof under the contract. If O’Donnell desired to protect his equity, he was given the opportunity to do so by paying the money due and accepting the deed tendered by the pleadings.

We think the judgment should be affirmed, and it is so ordered.


author: SPEER, J.

text:
    NEFF et al. v. HEIMER.
    (Court of Civil Appeals of Texas. Ft. Worth.
    Dec. 6, 1913.
    On Rehearing, Jan. 24, 1914.)
    1. Estoppel (§ 70) — Good Faith.
    Where a defendant, a purchaser of land, who knew that the vendor had defrauded plaintiff in a sale of the land by plaintiff to said vendor, asked plaintiff before the purchase if she objected to his buying, and plaintiff gave her consent, she was estopped to question defendant’s good faith.
    [Ed. Note. — For other cases, see Estoppel, Cent. Dig. §§ 183-187; Dec. Dig. § 70.]
    On Rehearing.
    2. Inteeest (§ 50) — Time—Effect of Ten-dee.
    Where the amount of a note is tendered, no interest falling due thereafter is recoverable.
    [Ed. Note. — For other cases, see Interest, Cent. Dig. § 114; Dec. Dig. § 50.]
    3. Appeal and Error (§ 1208) — Reversal —Restitution.
    Where plaintiff sued to recover title to land and to declare certain deed to it void, and recovers in the trial court and continues in possession until the case is reversed on appeal, defendant adjudged to be the rightful owner is entitled to recover from plaintiff its reasonable rental value.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4701-4709; Dec. Dig. § 1208.]
    Appeal from District Court, Tarrant County ; Marvin H. Brown, Judge.

      Suit by Louisa C. Heimer' against J. F. lates and others. Judgment for plaintiff, and defendant Fates appeals.
    Reversed.
    Orrick & Terrell and A. B. Curtis, all of Ft. Worth, for appellant. Lattimore, Cum-mins, Doyle & Bouldin, of Ft Worth, for ap-pellee.

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

   SPEER, J.

Louisa C. Heimer instituted this suit against Roy Neblett, C. D. Neff, Mrs. <3. H. Marrett, and J. F. Fates to recover the title and possession of a certain lot in the city of Ft. Worth and to declare null and void deeds executed by plaintiff to C. D. Neff, by C. D. Neff to Mrs. C. H. Marrett, and by Mrs. Marrett to J. F. Fates, respectively, conveying the property, alleging a conspiracy to defraud plaintiff out of her property. The defendants Neblett, Neff, and Marrett disclaimed any interest in the property, while the defendant Fates answered pleading specially that he was an innocent purchaser of the property and further alleging facts constituting an estoppel against plaintiff to question his title to the property. The case was submitted to a jury on special issues, upon their answers to which judgment was rendered for the plaintiff against all of the defendants for the recovery of the property, and the defendant Fates alone has appealed and assigns errors.

We sustain appellant’s thirty-second assignment of error, to the effect that the court erred in refusing to render judgment in his favor upon his motion for same, notwithstanding the verdict, because the undisputed evidence shows that before he purchased the property in controversy from Mrs. Marrett he made due inquiry of Mrs. Heimer as to all objections which she might have to Mrs. Mar-rett’s selling him the property, and that he refused to purchase the same until she (Mrs. Heimer) was satisfied; that she subsequently gave her consent, and upon such consent he purchased the property and paid a valuable consideration therefor without notice of any defects in his title. The findings of the jury on the special issues submitted to them were, in effect, that there was a conspiracy between C. D. Neff, Roy Neblett, and Mrs. O. H. Mar-rett to defraud appellee out of the property in controversy, and that these defendants, or some of them, not only made false and fraudulent representations, but employed threats and force, whereby she was induced to convey her property to O. D. Neff, who in turn conveyed it to Mrs. C. H. Marrett, and that appellant Fates, either personally or through his agent, Rose, knew of the fraudulent representations, force, and threats inducing the appellee to make the conveyance prior to his purchase of the property. The verdict embraces the further finding that the property in controversy was of the value of $5,-000, and that the value of property in Midlothian traded by appellant to Mrs. Mar-rett over and above an indebtedness existing at the time against it was ,$1,350, which finding, in connection with the undisputed evidence of a cash payment made and the assumption of a vendor’s lien note for $2,400, which Neff and Mrs. Marrett had agreed to pay to appellee, constituted an adequate consideration for the property. The undisputed evidence shows that appellee was at all times in possession of the property, and that before appellant purchased the same from Mrs. Marrett he sent his representative, Webb Rose, and his attorney, E. O. Orrick, to see appellee, and these representatives informed appellee that their principal would not purchase the property unless she was entirely satisfied with her trade with Mrs. Marrett. She was fully informed that appellant was buying the property from Mrs. Marrett and unless she made some objection the trade would be closed immediately. She made no objections whatever further than to require an indemnity covering a supposed lien against some property known as the Sagerton property, vendor’s lien notes against which she had taken in the sale to Neff and Marrett, and also to increase the vendor’s lien note which Neff was executing to her from $2,000 to $2,400. These were the only objections made, and appellee does not deny that she knew appellant expected to buy the property, or that she was called upon to state if she-was satisfied with the transaction. Nor does she deny that she made no objections to appellant’s purchase.

Under these circumstances about which there is no controversy in the proof, we hold that appellee is estopped to question appellant’s purchase from Mrs. Marrett. For the purposes of this opinion we are assuming that Mrs. Heimer’s possession of the property (Collum v. Sanger, 98 Tex. 162, 82 S. W. 459, 83 S. W. 184) and the oral testimony were sufficient to charge appellant with notice of the fraud perpetrated by Neff, Neblett, and Mar-rett on appellee. There is no finding, nor is there any evidence raising such an issue, that appellant in any manner actively participated in such fraud. Being chargeable then with notice of some vice affecting Mrs. Marrett’s title, the law imposed upon appellant the duty of making a proper inquiry to ascertain the facts. We hold it to be a complete discharge of this duty to go, as appellant did, to Mrs. Heimer, herself, and there make inquiry if his purchase of the property would be agreeable to her. Upon his doing so, the law imposed upon appellee the duty, if she had any valid objections, to interpose them then and there. Failing to do so, she should not afterward be heard to complain when appellant upon the faith of her silence has purchased the property, paying a valuable consideration therefor. Under the undisputed facts the trial court should have rendered judgment for appellant, notwithstanding the verdict, which, as we have already seen, in no manner connected appellant actively with the fraud committed on appellee.

The judgment of the district court is, therefore, reversed, and judgment here rendered in favor of appellant for the land in controversy; but judgment is also rendered in favor of appellee Mrs. Louisa ■ O. Heimer for the sum of $2,400, together with interest at the rate of 8 per cent, per annum from February 18, 1910, being the amount of the C. D. Nett note assumed by appellant, together with a foreclosure of the vendor’s lien on the land in controversy.

Reversed and rendered.

On Rehearing.

Appellee’s motion for rehearing presents nothing that would cause us to change our holding on the original hearing, and it is, accordingly, overruled.

But appellant’s motion to reform the judgment rendered in favor of appellee for the sum of $2,400 must be sustained. First, we were in error in allowing appellee to recover interest. The pleadings of appellant and the undisputed evidence and agreement of the parties in open court show that appellant tendered the amount of his note at its maturity, and also made a legal tender of the same in court on trial, and he should therefore be relieved from the payment of all interest.

Furthermore, we were in error in not allowing appellant a credit against appellee foil the amount of the'i?ents of the property in controversy. As stated on the original hearing, it was undisputed that appellee has at all times retained possession of the property awarded to appellant, and the jury find that its reasonable rental value from March 9, 1910, to the date of the trial is $40 per month. The judgment heretofore entered by us is therefore modified so as to be in ap-pellee’s favor for the sum of $2,400, without interest, less a credit in appellant’s favor of $40 per month from March 9, 1910, the date of Mrs. Marrett’s deed to appellant, to February 21, 1913, the date of the trial in the district court. This judgment is without prejudice, of course, to the rights of the parties accruing since the trial in the district court.

Appellant’s motion to reform the judgment is, accordingly, granted as herein shown.


author: CONNER, C. J.

text:
    FT. WORTH & R. G. RY. CO. v. KEITH.
    (Court of Civil Appeals of Texas. Ft. Worth.
    Nov. 29, 1913.
    Rehearing Denied Jan. 17, 1914.)
    1.Carriers (§ 318) — Death of Passenger— Negligence — Evidence.
    In an action for the death of a passenger who attempted to descend from a moving train on the directions of the porter, evidence held sufficient to sustain a finding that the porter was negligent.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1270, 1307-1314; Dec. Dig. I 318.]
    2. Carriers (§ 346) — Contributory Negligence of Passenger — Evidence.
    In an action for the death of a passenger who attempted to descend from a moving train on the directions of the porter, evidence held sufficient to sustain a finding that deceased was not guilty of contributory negligence.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 1401; Dec. Dig. § 346.]
    3. Carriers (§ 247) — Passengers—1Trespassers— Question for Jury.
    Where plaintiff’s decedent while asleep was carried past his station and, on suggestion of the conductor, continued on his journey to the next stop, intending to return by another train and on getting off found that it was raining and there was no shelter, re-entered the train, which started on its journey, whereupon the porter showed him the train on a switch on which he could return, deceased was not a mere trespasser or licensee, but a passenger, and the carrier was bound to exercise a high degree of care to enable the deceased to descend.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 984-993; Dec. Dig. § 247.]
    4. Carriers (§ 317) — Contributory Negligence of Passenger —Pleading —Evidence.
    Although it may not be the duty of a carrier to awake a sleeping passenger at his station, yet, in view of a plea of contributory negligence in that the deceased did not awake and get off, evidence that it was a custom with said carrier to awake passengers was admissible as explaining deceased’s subsequent status on the train and as tending to show that he was not necessarily in fault in having failed to alight.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1295, 1297-1305; Dec. Dig. § 317.]
    5. Appeal and Error (§ 1050) — Harmless Error — Admission of Evidence.
    Where deceased, a passenger, was not awakened at his station, and had to continue on the train, and he was afterward killed, the admission of evidence that there was a custom of awakening sleeping passengers cannot be held prejudicial on the ground that it admitted proof of negligence too remote to be the proximate cause of the death, where the court did not authorize a recovery on that ground.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dec. Dig. § 1050.]
    6. Death (§ 68) — Damages — Evidence of Character of Deceased — Expectancy of Benefits.
    In an action for damages for wrongful death of an adult, evidence that deceased was an industrious and energetic man, had purchased a home for his mother, the plaintiff, and her grandchildren; and that he was their sole support, was admissible on the issue of the reasonable expectancy of pecuniary benefits which plaintiff would have received from her son had he lived.
    [Ed. Note. — For other cases, see Death, Cent. Dig. §§ 86, 87; Dec. Dig. § 68.]
    7. Appeal and Error (§ 1064) — Harmless Error — Instructions—Grounds of Recovery.
    In an action against a carrier for wrongful death, where the deceased was carried past his station because asleep and, on the suggestion of the conductor, was going to the next stop and return by another train, and he. got off at that stop and, not seeing the other train, re-entered the train which started on, and was killed in the attempt to get off again, an erroneous instruction that deceased was a passenger between his station and the first stop was harmless, where no ground of recovery was authorized for anything done or omitted between those two points.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 4219, 4221-4224; Dee. Dig. § 1064.]
    8. Carriers (§ 320) — Proximate Cause — Questions for Jury.
    Whether the act of defendant’s porter ⅛ directing or commanding a passenger to alight and shoving him toward the door of a moving train and defendant’s failure to stop the train could have been the proximate cause of the passenger’s death, he having been killed by being run over when alighting, was a question for the jury.
    [Ed. Note. — For other eases, see Carriers, Cent. Dig. §§ 1118, 1126. 1149, 1153, 1160, 1167, 1169, 1179, 1190, 1217, 1233, 1244, 1248, 1315-1325; Dec. Dig. § 320.]
    9. New Trial (§ 102) — Newly Discovered Evidence — Diligence.
    Where affidavits of persons who had been present at the time of the taking of a deposition were introduced to show that testimony in the deposition was false, and the deposition had long been on file and disclosed the names of the witnesses whose affidavits were relied upon, one moving for a new trial on the ground of newly discovered evidence was clearly without diligence in securing such evidence and was not entitled to a new trial.
    [Ed. Note. — For other cases, see New Trial, Cent, Dig. §§ 207, 210-214; Dec. Dig. § 102.]
    Appeal from District Court, Erath County; W. J. Oxford, Judge.
    Suit by Martha A. Keith against the Ft. Worth & Rio Grande Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed,
    Andrews, Ball & Streetman, of Houston, and J. C. George, of Brownsville, for appellant. J. B. Keith, of Stephenville, and Car-lock: & Oarlock, of Ft. Worth, for appellee.

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

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

   CONNER, C. J.

Appellee recovered a judgment for §6,750 as damages for the death of her adult son, Edward W. Keith, on the night of May 14, 1912, at Harbin in Erath county, Tex. As alleged, and as there was evidence tending to show, Edward Keith was unmarried and the sole support of his widowed mother and several of her grandchildren. On the night in question he took passage at Ft. Worth, Tex., for his home in Stephenville on one of appellant’s passenger trains that was due to arrive at Stephenville about 2 o’clock a. m. He was asleep when the train arrived at Stephenville, and at the instance of the conductor continued some six miles beyond to Harbin, a way station, where appellant’s north-bound passenger train going in the opposite direction was expected, and upon which Edward Keith intended to take passage and return to Steph-enville. With this introductory statement the crucial issues will be understood by a consideration of the third paragraph of the court’s charge, upon which appellee’s right to recover was made to depend, and which reads as follows:

“Now, bearing in mind the foregoing, you are instructed that if you believe from a preponderance of the evidence in this case that when the defendant’s passenger train, upon which the said Ed. W. Keith was riding on the night of the accident, first arrived at the station of Harbin, that the defendant’s porter on said train caused or directed the said Keith to depart from said train at a time when the weather was cold and a rain was falling; and if you further believe from the evidence that there was not at said station any north-bound passenger train visible to the said Keith from the place where he left said train; and if you further believe that there were no lights at said station and no depot facilities at said place for the accommodation of a passenger at that time of night; and if you further believe that the place at which the said Keith left said train the first time was not a proper or suitable place for him, under the circumstances surrounding him at said time, to depart from said train and remain at said place; and if you further believe that he was induced to leave said train at said time and place by the assistance or direction ' of the defendant’s porter; and if you further believe that it then and there reasonably appeared to the said Keith; from all the circumstances then surrounding him, that there was no northbound train there to return him to Stephen-ville; and if you further believe that the said place then and there was an unsuitable one for him to remain, in view of all the circumstances; and if you believe that said Keith, acting upon such belief, re-entered the said coach which he had left, for the purpose of continuing his passage on said train, as a passenger, if you find that such was his purpose in so entering said coach; and if you further believe that in doing the things which you find from the evidence that the said Keith did do up to said time that he was then and .there exercising the care of a person of ordinary and reasonable care and prudence, and such care and prudence as such a person would have exercised under, the same or similar circumstances; and if you further believe that shortly after he had re-entered the said coach in the defendant’s train, and before the said train had left the station yard at Harbin, that the defendant’s porter did look to the west and see the said north-bound passenger train standing on the west side track, and did thereupon call out to the said Keith in a loud or commanding tone of voice: ‘Yonder is your train, go out that way,’ pointing or directing the said Keith to leave the said train on the west side thereof; and if you further believe that the said porter did then and there urge, shove, or influence the said Keith to then and there attempt to leave said train on the west side thereof, and while it was moving out of said yard at said station; and if you further believe that it was within the power of the said porter to then and there cause the said train to be stopped for the purpose of enabling the said Keith to depart therefrom in safety; and if you further believe that under all the circumstances it was his .duty to do so; and if you further believe from the evidence that he did fail to do so; and if you further believe from the evidence that the said Keith in leaving said train at said time and place was induced to do so by the acts and words of the said porter at said time, if you find that the said porter did use words or acts at said time reasonably calculated to induce the said Keith to leave said train at said time and place, and that the said Keith would not otherwise have done so; and you further find that the said Keith in leaving the said train at said time, considering all the circumstances surrounding him, exercised ordinary care; and you further find that as a result of the attempt of the said Keith to leave the said train at said time and place he stumbled or slipped and fell under the wheels of said train, and sustained injuries which caused his death, and if you further find that said porter in causing or inducing the said Keith to leave said train on the west side thereof, at the time he was hilled, if you find that he did cause or induce the said Keith to do so, when viewed in the light of all the surrounding circumstances, was guilty of negligence, as that term is defined in this charge; and if you further believe that such negligence, if any, was the proximate cause of the death of the said Keith — then, if you so find and believe, you will render a verdict in favor of the plaintiff for the damages, if any, sustained by her by reason of the death of her son, Ed. W. Keith, unless you find in favor of the defendant under other instructions given you in this charge.”

Appellee’s evidence raised the issues so , presented, and it is sufficient to support the verdict thereon, and the vital question presented by appellant’s assignments is one of liability. It is insisted, in effect, that the deceased in re-entering the train at Harbin was but a trespasser or licensee, and that hence the court erred in imposing upon appellant, as was done in clauses of the charge not quoted, that high degree of care required of carriers in the transportation of passengers, and also that it conclusively appears that the deceased was guilty of contributory negligence.

-The evidence, in substance, shows that the deceased awoke soon after the train upon which he had taken passage left the station at Stephenville, and that, when he approached the conductor complaining that he had not been awakened, the conductor suggested that he continue on the train until its arrival at Harbin because of a very hard rain falling at the time; that, when the train arrived at Harbin, the porter at the direction of the conductor opened the doors, and the deceased descended to the ground; that there was no light or station house at Harbin; and that it was yet raining hard; and that the deceased evidently failed to see the light of the north-bound train, the light being obscured by some standing box cars. He thereupon, very soon after the train upon which he had been a passenger began its onward journey, re-entered 'the train, and, calling to the porter, said that there was no north-bound train at Harbin; that the porter at once pointed to the opposite side of the train, saying, “There is your train, go out that way,” and the deceased descended on the opposite side from that of his first descent, and, evidently slipping, fell back under .the train receiving his death injuries. The porter testified that when he stated that “there is your train” the deceased instantly, very hurriedly and rapidly, and of his own accord, rushed out of the door and jumped off of the train; that he (the porter) called and tried to stop him. In this, however, the porter was contradicted by two other witnesses who were in that part of the car from which the deceased proceeded. They state that, when the deceased’s attention was so called to the north-bound train, the porter pointed to it and to the door, and, as one of them testified, directed him to go out that way in a commanding tone and shoved or pushed him. Under the court’s charge, which we have quoted, we think the issue was properly one for the jury, and that the evidence referred to is sufficient to support the verdict in appellee’s favor on both the issue of the porter’s negligence and a want of contributory negligence on the part of the deceased.

The deceased was a well-known business man of Stephenville, and the evidence indicates had manifested his anxiety to return to Stephenville that night, and the inference is strong that in reboarding the train at Harbin he did so because of a want of suitable accommodation at Hardin, and with the purpose of proceeding on his journey until he arrived at Dublin, some six miles farther, where there were accommodations for'staying the remainder of the night, and it cannot be said, under such circumstances, that the appellant was not legally bound to exercise that high degree of care to enable the deceased to descend from the train with reasonable safety. Nor do we think it can be said as a matter of law that the deceased was guilty of contributory negligence in descending from the train at the time and under the circumstances he did. The jury might reasonably conclude that under the circumstances a man in the exercise of reasonable care and prudence for his own protection would rely upon the implied assurances at least arising from the command or direction of the porter that he could safely alight. Railway v. Whitley, 43 Tex. Civ. App. 347, 96 S. W. 109; Railway v. Krenek, 138 S. W. 1154; Railway v. Brown, 4 Tex. Civ. App. 437, 23 S. W. 618; Railway v. Smith, 59 Tex. 406; Railway v. Dorough, 72 Tex. 111, 10 S. W. 711; Railway v. Jackson, 38 Tes. Civ. App. 205, 85 S. W. 445; Mills v. Railway, 94 Tex. 242, 59 S. W. 874, 55 L. R. A. 497; Railway v. Viney, 30 S. W. 252 ; 3 Hutchinson on Carriers (3d Ed.) § 1179.

Error is also assigned to the testimony of a number of witnesses, to the effect that it had been a custom on the part of appellant’s train operatives to wake passengers destined for Stephenville on its night trains, but appellant had pleaded that the deceased was guilty of contributory negligence in a failure to awake and leave the train at Ste-phenville, and the evidence further tended to show that the custom to which the witnesses testified had been long continued and, while it is undoubtedly true, as a general proposition, that it is not the duty of the carrier to awake a sleeping passenger on the arrival of the train at his station, yet, in view of the plea of contributory negligence referred to, we think the testimony was admissible as explaining the deceased’s subsequent status on the train and as tending to show that he was not necessarily in fault in having failed to alight at his intended destination.

To the suggestion that the court , thus admitted proof of negligence too remote to be the proximate cause of the injury, it will be sufficient to say that the court did not authorize a recovery on any such ground.

Objection was also made to the evidence of J. N. Jordan and a number of other witnesses to the general effect that the deceased was an industrious and energetic man, that he had purchased a home into which he had moved his mother and two of her grandchildren, and that he constituted their sole support. This evidence we think was clearly admissible on the issue of the reasonable expectancy of pecuniary benefits which plaintiff would have received from her son had he lived. Railway v. Cowser, 57 Tex. 304; Mill & El. Co. v. Anderson, 98 Tex. 160, 81 S. W. 282, 1 L. R. A. (N. S.) 198; Railway Co. v. Wright, 29 S. W. 1134.

The charge is objected to on the ground that the jury were instructed that the deceased was a passenger between Ste-phenville and Harbin. This we think, under the facts, was clearly so, and the court therefore committed no error in this respect. Besides, the instruction, if erroneous, would seem to be immaterial, as no ground of recovery was authorized for anything done or omitted on the part of appellant’s servants between Stephenville and Harbin.

The paragraph of the court’s charge which we have quoted is also objected to on the ground that the facts submitted “could not have been the proximate cause”, of the death of the deceased. We think we have, however, stated the facts sufficiently for it to be apparent that this issue was by the court properly left for the determination of the jury.

It is also insisted that the court should have sustained appellant’s motion for new trial on the ground of newly discovered evidence, but it was made to appear so clearly on the hearing of the- motion before the trial court that appellant was wholly without diligence in securing the alleged newly discovered evidence that we feel like it is unnecessary to go into the question particularly. It will be sufficient, we think, to say that the effort was to show by affidavits of certain persons who had been present at the time of the taking of the deposition of that one of appellee’s witnesses who testified that the porter in a commanding tone of voice directed the deceased to go out the door immediately preceding his injuries, had testified falsely in that respect, but it appeared that the deposition had long been on file and that' the deposition when returned into court disclosed the names of the witnesses whose affidavits were relied upon. There was also evidence in behalf of appellee from the same witnesses explaining and contradicting the affidavits that had been taken in behalf of appellant, so that on the whole it appeared as stated that no sufficient diligence had been exercised, and also that it is altogether improbable that the alleged newly discovered evidence would, if admitted, have appreciable influence upon another trial.

We conclude that the evidence supports the material allegations in appellee’s petition; that all assignments should be overruled, and the judgment affirmed.


text:
    TRAMMELL et ux. v. ROSEN.

    (Court of Civil Appeals of Texas. Ft. Worth.
    Nov. 22, 1913.
    On Motion for Rehearing, Jan. 17, 1914.)
    1. Homestead (§ 96)—Liens Eneobceable Against Homestead.
    If, as claimed, a lot intended as a place of residence was purchased by a husband with 20 other lots for a lump sum, the vendor’s lien reserved was enforceable against such lot, thereafter occupied as a homestead, for the full amount of the purchase price of all the lots; no homestead right attaching prior to the creation of the lien, and the purchaser taking title subject to the lien.
    [Ed. Note.—For other cases, see Homestead, Cent. Dig. §§ 147-153; Dec. Dig. § 96.]
    2. Homestead (§ 96) — Liens Eneobceable Against Homestead.
    If, as claimed, a lot intended as a residence and thereafter occupied by a husband and wife as* a homestead was purchased prior to the purchase of 20 other lots, possession taken, and permanent and valuable improvements made thereon prior to the purchase of the other lots though it was not actually occupied, it was impressed with the character of a homestead though the legal title was not conveyed until the conveyance of the other lots, and the homestead right could not be destroyed by the execution of vendor’s lien notes on the whole 21 lots for the purchase price of all by the husband alone.
    [Ed. Note.—For other cases, see Homestead, Cent. Dig. §§ 147-153; Dec. Dig. § 96.]

      Appeal from District Court, Tarrant County; W. T. Simmons, Judge.
    Action by Sam Rosen against W. M. Tram-mell and wife. From a judgment for plaintiff, defendants appeal.
    Reversed and remanded.
    See, also, 157 S. W. 1161.
    Harris, Harris & Young, of Ft. Worth, for appellants. Slay, Simon & Wynn, of Ft. Worth, for appellee.

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

       Writ of error denied by Supreme Court.

   CONNER, C. J.

On October 31, 1910, Sam Rosen instituted this suit against W. M. Trammell to recover upon 64 of a series of 98 notes executed by W. M. Trammell, and to foreclose the vendor’s lien securing the same upon numerous lots in the Rosen Heights addition to North Ft. Worth. W. M. Trammell, joined by his wife, answered that lot 7, block 56, of the lots sought to be charged by the plaintiff constituted their homestead at and prior to the execution of the notes sued upon and they prayed that it be discharged from the asserted lien. It was also alleged that the plaintiff had wrongfully sequestered and obtained and retained possession of the said homestead to their damage which they sought to recover. In accordance with a peremptory instruction, the verdict and judgment was for the plaintiff on all issues, and the defendants prosecute an appeal.

It is undisputed that on the date of the notes in controversy, June 25, 1904, appellee Rosen executed and delivered to appellant W. M. Trammell a deed to 21 lots in Rosen Heights, including said lot 7; that W. M. Trammell at the same time and as consideration therefor executed and delivered to Rosen 98 promissory notes, payable monthly, the deed and notes retaining the vendor’s lien upon all lots described in the deed from Rosen; that of the notes so executed only 34 have been paid, leaving 64 at $20 each unpaid and upon which the suit was instituted.

The testimony of appellant W. M. Tram-mell and his wife was to the effect that in the early part of May, 1904, preceding the execution of the deed and notes mentioned, they contracted for the purchase of lot 7 alone; that said lot had been purchased with the view of constituting it their homestead; that they immediately began erecting thereon a dwelling house, appellee agreeing to become security for such lumber as might be needed; that about the middle of May, 1904, the lumber, which cost $466.39, was delivered upon the lot, and the house completed at a total cost of about $1,300; that in the erection of said building they provided out of their own means for all labor, material, etc., save for said lumber; that immediately upon the completion of the building they at once went into possession of the house and lot and occupied the same as a homestead; that it was after such improvement and occupancy, to wit, on June 24, 1904, that Rosen and appellant W. M. Trammell met for the purpose of closing the purchase of said lot 7 by the making of deeds and notes, etc., when without the knowledge of appellant Iva D. Trammell, wife of said W. M. Trammell, the latter at¡ the suggestion and instance of Rosen further agreed to the purchase of 20 other lots for which, as well as for lot 7, Rosen made conveyance, reserving therein the vendor’s lien upon all lots described in the deed, to secure W. M. Trammell’s promissory notes as then agreed upon, to wit, 98 for the sum of $20 each; that by the terms of the original agreement for the purchase of lot 7 they were to give $140 only, payable in monthly installments of $20 each; that of the series of notes given by Trammell on the 24th of June, 1904, notes from 1 to 35, pursuant to an agreement with Rosen, were by the latter transferred to the lumber company in payment of the lumber going in to the appellants’ homestead; and that these notes had been fully paid by appellants. The testimony of appellants also was to the effect that they had later paid 11 other notes of the series. Appellants’ testimony was further to the effect that, while temporarily absent from their home and upon the institution of the suit, appellee Rosen had sequestered the said home by reason of which they had been damaged; but, in the view we have taken of the case, it will be unnecessary to specify particulars relating to this issue.

The appellee Rosen in his testimony denied the separate purchase of lot 7, testifying to the effect that lot 7 and the other 20 lots were all contracted for at the same time, lot 7 being intended as a place of residence, and the remaining 20 lots, which were adjoining, for the purpose of maintaining a dairy; that no separate price had been fixed for lot 7; that the entire 21 lots were sold at the lump sum of $1,500; that when the deed and notes had been executed the purchase price of the lumber was added thereto and notes given for the whole; that there was no agreement with Trammell that, as soon as a part of the notes were paid, the house and lot were to be released from the lien.

If the transaction under consideration be established as indicated by the deed and notes and as interpreted by the testimony of appel-lee Rosen, there can be no doubt of appel-lee’s right to enforce a vendor’s lien upon lot 7, as well as upon the other lots involved in controversy. In such case no homestead right in appellants attached prior to the creation of the lien, but they took title to lot 7, as well as to the other lots, subject to the lien evidenced by the deed and notes. See Berry v. Boggess, 62 Tex. 239; McCarty v. Brackenridge, 1 Tex. Civ. App. 170, 20 S. W. 997; Jones v. Male, 26 Tex. Civ. App. 181, 62 S. W. 827; Kalteyer v. Mitchell, 110 S. W. 462; Id., 102 Tex. 390, 117 S. W. 792, 132 Am. St. Rep. 889. These cases proceed upon the theory that the husband may incumber property intended for a homestead with a lien for money not a part of the purchase money, that the lien is good at least as a contract lien, and that the purchasers take title subject to the burden of the lien as evidenced in the conveyance under which they claim.

But we are of the opinion that the ease now before us is distinguishable from those cited. The evidence we think of appellants hereinbefore briefly stated tended, if credited, to establish in them a pre-existing» homestead right, which could not be destroyed by the act of the husband alone. If true, as in effect testified to by them, that the purchase of lot 7 was prior to and distinct from that of the purchase of the remaining 20 lots, and that by virtue of the contract for the purchase of lot 7 appellee delivered to them possession and they thereupon erected permanent and valuable improvements as their evidence tends to show and occupied the building by them constructed as their homestead prior to the final purchase of the remaining 20 lots and prior to the execution of the deed and notes mentioned, then they had such equitable title as would compel the conveyance of a legal title and constitute a possession to which the homestead right would attach. See Wells v. Davis, 77 Tex. 638,14 S. W. 237; Babcock v. Lewis, 52 Tex. Civ. App. 8, 113 S. W. 584; Sweet v. Lyon, 39 Tex. Civ. App. 450, 88 S. W. 384; Bone v. Cowan, 37 Tex. Civ. App. 519, 84 S. W. 385; Seay v. Fennell, 15 Tex. Civ. App. 261, 39 S. W. 181; Kallman v. Ludenecker, 9 Tex. Civ. App. 182, 28 S. W. 579; Dotson v. Barnett et ux., 16 Tex. Civ. App. 258, 41 S. W. 99; Madden v. Madden, 79 Tex. 600, 15 S. W. 480; Wingate v. People’s Bldg. & Loan Ass’n, 15 Tex. Civ. App. 416, 39 S. W. 999; Paschall v. Pioneer Savings & Loan Co., 19 Tex. Civ. App. 102, 47 S. W. 98. The court therefore erred in taking the issue from the jury by giving the peremptory instruction assigned as error.

A number of other errors are assigned, such as to the action of the court in excluding the issue of damages for the alleged wrongful issuance of the writ of sequestration and in excluding certain testimony relating to the issue of homestead and to the issue of damages, but these rulings were doubtless influenced by the trial court’s view upon the controlling question, which we have discussed and will not likely occur on another trial. We therefore will not further discuss the assignments of error, but conclude that, because of the error discussed, the judgment should be reversed and the cause remanded for another trial.

Reversed and remanded.

On Motion for Rehearing.

In stating the facts in our original opinion herein we find that we were mistaken in the statement to the effect that the house upon lot 7, herein claimed as a homestead, was occupied by appellant and wife at and prior to the time of the execution of the deed and notes mentioned in the opinion. The statement of facts shows that the. actual occupancy as a residence or the dwelling occurred later. This fact, however, we do not regard as material, for the testimony in behalf of appellants seems to make it clear that the selection of the lot, the building of the house, and other acts of preparation were sufficient to impress upon the lot the character of a homestead.

We therefore, with the correction stated, adhere to our original opinion and overrule the motion for rehearing.