author: LEVI, J.

text:
    FIREMAN’S FUND INS. CO. v. LYON.
    (No. 1278.)
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 21, 1914.
    Rehearing Denied Dec. 10, 1914.)
    1. Insueance (§ 665) — Fire Policies — Actions — Evidence.
    In an action on a fire policy, providing that it should be void if the property insured remained vacant or unoccupied for 10 days, evidence held to show no waiver of the vacancy clause when insured was given permission to remove the building from one lot to another.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1555, 1707-1728; Dec. Dig. § 665.]
    2. Insurance (§ 387) —Fire Insurance — Conditions — Estoppel.
    That a fire company allowed the holder of a policyj providing that it should be void in case the premises • remained vacant for over 10 days, to remove the building from one lot to another, and after the removal notified the insured that the policy would again be in force, it not having been operative while the building was in transit, does not estop the insurer from relying on a breach of the vacancy clause.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1025; Dec. Dig. § 387.]
    Error to Hunt County Court; Geo. B. Hall, Judge.
    Action by E. W. Lyon against the Fireman’s Fund Insurance Company. There was a judgment for plaintiff, and defendant brings error.
    Reversed and rendered.
    This suit is by defendant in error to recover, on a fire insurance policy issued by the plaintiff in error upon a dwelling. The dwelling was destroyed by fire on September 13, 1911. The insurance company pleaded as a defense the breach of the following stipulation in the policy:
    “This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if a building herein described shall be or become vacant or unoccupied and so remain for ten days.”
    The defendant in error replied by pleas of waiver of the provision as to occupancy and agreement to keep the policy in force by in-dorsement of proper permit, and estoppel from claiming a forfeiture by reason of the vacancy, and asked to have the policy reformed so as to cover the house in its vacant condition. There was a trial to a jury, and verdict for defendant in error.
    The evidence establishes that' S. R. Polk owned premises on West Lee street in Green-ville, and situate thereon was a dwelling occupied by him. On October 22, 1910, the plaintiff in error, through its agent, issued to Polk a policy of insurance insuring the dwelling until October 22, 1911, in the sum of $900 ágainst loss by fire “while occupied by owner and tenant as a dwelling.” On July 19, 1911,' E. W. Lyon, the defendant in error, became the owner of the house and lot by purchase from Polk, and on said date the policy of insurance was transferred to the ownership of E. W. Lyon with the consent of the insurance company indorsed thereon. At the time of the issuance of the policy, there was a lien upon the premises in favor of the bank at Detroit, Mich., and there was a loss payable clause in favor of the bank attached to the policy, and the policy was in the bank’s possession from that date until after the dwelling was destroyed. Polk resided in the house after the sale of the premises and the transfer of the policy to Lyon, until about the 10th or 12th of August, 1911, at which time he moved out, and the house was. vacant and unoccupied continuously from the day Polk moved out to and including the day it was burned. The defendant in error determined to move the house from West Lee street to the southeast corner of Wall and, Washington streets, and immediately upon its being vacated by Mr. Polk went to see the agent of the insurance company and informed him with respect to moving the house, and asked him whether the insurance would be in force while the house was being removed, at the same time informing him that Polk had moved out and that it was then vacant. The agent informed defendant in error that under the policy the insurance would not cover the building during the time it was being moved from one location to another, but told defendant in error to notify him when- he had placed the house in its new location and he “would put the insurance in force,” meaning that he would authorize and cover the new locality by a provision to that effect. On August 31, 1911, when.the house had been moved to its new location, the defendant in error informed the agent of the insurance company of the fact and stated to him that he “wanted the insurance put in force again,” and the agent replied, “All .right, that it would be attended to.” Thereupon the agent sent his son to the premises for the purpose of obtaining the correct location of the house. The son, after inspecting the location, at once returned to the office, and there was written, and subsequently indorsed on the policy, the following:
    “Form No. 7%. S. R. Polk (assigned to E. W. Uyon). Removal permit. $900.00 on the one-story, shingle-roof, frame building and additions attached thereto, including heating and lighting apparatus and all permanent fixtures, while occupied by tenant as a dwelling and situated as follows: On the S. E. corner Wall and Washington streets in Greenville. August 31, 1911. J. H. Van Amburg, Agent.”
    One copy of this permit was pasted in the agent’s record book in his office, one copy was sent to the insurance company’s home office, and one copy to the Detroit bank to be attached to the policy. The agent’s- son knew the house was vacant on August 31, 1911, but neither Van Amburg nor his son knew of the continued vacancy after that date. On August 31, 1911, there was written, and subsequently indorsed on the policy, form No. 72, reading:
    “Report of Removal of Dwelling. Permission is hereby given to remove property insured- by this policy to - story - roof - building, occupied for dwelling purposes, situated S. E. cor. Wall and Washington streets, Greenville, Texas, subject to all the written and printed conditions thereof, all liability in • former location ceasing from this date. Rate - increased to $1.12 per cent. Premium- additional .30.”
    It appears that the fire hazard in the hew locality was greater than in the former, and because of that fact the increased rate and premium were charged. The increased premium applied exclusively to the removal permit. The evidence is undisputed that the dwelling was vacant and unoccupied from August 31, 1911, the date of completed removal, to and including September 13, 1911, the date of loss by fire. The agent testified that there was no agreement or permit as to future vacancy or nonoecupation of the dwelling in its new location, and that no such permit was asked for nor given. We conclude that the condition in the policy as to vacancy and nonoccupation was not performed by defendant in error from August 31, 1911, the day of removal, to and including September 13, 1911, the day of the loss by fire, and that there was not a waiver, or intended waiver, of such condition of the policy, nor is the company estopped in point of fact from claiming a forfeiture by reason of the fact of vacancy from August 31st to and including September 13th.
    Looney, Clark & Leddy, of Greenville, and Wm. Thompson and Jno. S. Patterson, both of Dallas, for plaintiff in error. Evans & Carpenter, of Greenville, for defendant in error.

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

   LEVI, J.

(after stating the facts as above). The policy of insurance upon which this suit was based contained the provision that:

“This entire policy, unless otherwise provided by agreement endorsed hereon or added hereto, shall be void if a building herein described shall be or become vacant or unoccupied and so remain for ten days.”

And the record admits the fact that the dwelling covered by the policy remained vacant and unoccupied from the time it was ready for occupancy on August 31, 1911, to and including September 13, 1911, the day it was destroyed by fire. As it could not very well be asserted, in view of these conceded facts, that the policy was not terminated by its own terms of contract, a liability on the policy in favor of the insured could not be sustained unless, as claimed by the insured, there was sufficient proof to authorize a finding of fact by a jury that the condition in the policy was waived and the company estop-ped from taking advantage of it. The insurance company by proper assignment contends that there is no evidence showing, or upon which a legitimate inference could be formed, that it waived the condition, or upon which to predicate estoppel. In respect to this contention it appears from the evidence that the policy was issued and delivered in the first instance on October 22, 1910, to S. R. Polk, who at that time was the owner of the premises and building. The defendant in error subsequently purchased of Polk the lot and building, and this same policy of insurance thereon was assigned and transferred in writing to him on July 19, 1911. Polk occupied the dwelling at the time of the issuance of the policy and until about the 10th or 12th of August, 1911, at which time he moved out. The defendant in error decided to move the house from its then location on West Lee street, as set out in the policy, to another lot owned by him on the corner of Wall and Washington streets. Defendant in error testified:

“When we got ready- to move the house, I wasn’t sure about the insurance. I went to see Mr. Van Amburg and told him I was going to move the house, and asked him about the moving, and he said when moving it the insurance would be at my risk, that is, off; but if I got it moved and set up he would put it on. I don’t remember any talk about the occupancy at all. I told him I was going to move it and I wanted to be sure about the insurance, whether the insurance would be on and whether at my risk while it was being moved. He said during the time the house was being moved the insurance would be off, and when I got it moved and notified him he would put the insurance in force. -About two weeks, maybe a little longer, from the time w^ commenced moving, until the house was set up, as soon as we got it set up, I notified Mr. Van Amburg that the house was up and I wanted the insurance put in force again, and he said all right that it would be attended to. About three or four days before the house burned, I met Mr. Van Amburg at Bell’s hardware store, and told him I was very busy trying to gather my crop and was building a house and my mother was sick, and asked him if he had my insurance fixed up. He said he did. I told him I hadn’t time to look after it, and he said he was taking care of it and to go on about my work and to depend on him, whenever I gave him my insurance he would keep up with it; and that was all the conversation I had with him until after the house burned.”

Van Amburg was the local agent of the insurance company in Greenville. The agent testified that:

Defendant in error “gave me information in regard to moving the house from West Lee to Washington street location. I said to him, in substance, what I said to others, that during the time the house is moved from one place to another the insurance is not in force, but may be reinstated when the house is set on the new location. My best recollection is that I told him then to let me know when he got it set up. * * * On the morning of August Slst he came to me and said the house was in its new location, and wanted to know if the insurance was in force. We talked trying to locate the house. Neither he nor I nor my son knew the exact location — that is, the cross-street —and my son got a buggy and went and got the location. Mr. Lyon did not remain in my office until my son returned. When Mr. Lyon came to notify me that the house had been placed in the new location, I told him I would get the location and make the transfer, and I did do it, according to the attachment to the policy, removal permit. (The removal permit was attached in writing to the policy.) It is not the form used in case of a vacancy. * * * I never _ made a charge against Mr. 'Lyon for the privilege of permitting the house to remain vacant, and Mr. Lyon never paid me anything for that privilege. * * * Vacancy was not considered. It was a question of removal, and the question of vacancy was not mentioned, and he did not make any request for a vacancy permit. I never had any agreement or contract with Mr. Lyon at any time or place to look after his property and see whether it was vacant or not or occupied. Mr. Lyon, like a great many of my other customers, told me to keep his insurance in force. I did all that Mr. Lyon rquested me to do, and all that I agreed to do with Mr. Lyon in regard to this insurance. I never did tell Mr. Lyon that I would look after his property in regard to it becoming vacant, and try to keep the insurance in foi'ce by reason of the vacancy. Nothing was ever said about it.”

It is quite true that it appears from this evidence that at the time the defendant in error went to see the agent to find out whether “the insurance would he off” while the house was being moved to the new locality, the agent said that “he would put the insurance in force again” when the house was removed and notice given him of that fact. But it is quite clear, also, that the parties had in view only this removal permit. And the removal permit authorizing a change of locality being actually indorsed on the policy on August 31, 1911, the date of removal, there was fully carried out the agreement of the agent to “put the insurance in force again.” And the indorsing of the removal permit and change of location on the policy was perfectly consistent with the subsequent statements of the agent that he “had attended to it” and “made the transfer.” Clearly, it seems to us, there is no evidence tending to show an agreement to change, modify, or alter the statement in the policy as to the vacancy and nonoceupation. of the house, nor to extend the vacancy and nonoccupation beyond the original terms of the policy. It appears that the house was vacant, to the agent’s knowledge, on the day the removal permit and change of location were indorsed on the policy. But the knowledge of vacancy at that date would not produce the result of waiver or be sufficient for estoppel. Insurance Co. v. Chadwick, 13 Tex. Civ. App. 318, 35 S. W. 26; Ranspach v. Insurance Co., 109 Mich. 699, 67 N. W. 976; England v. Insurance Co., 81 Wis. 583, 51 N. W. 955, 29 Am. St. Rep. 917.

The cases of Assurance Co. v. Dunbar, 7 Tex. Civ. App. 418, 26 S. W. 628, and Short v. Home Ins. Co., 90 N. Y. 16, 43 Am. Rep. 138, cited by defendant in error in respect to the question of insuring vacant property, do not control the instant case. Here the dwelling was not insured in the first instance as vacant, as in those cases. Mr. Polk occupied it as a dwelling at the time of the issuance of the policy to him, and it was likewise occupied as a dwelling at the time the defendant in error had the policy transferred and assigned to him. This original policy re» mained in force between the insurance company and the defendant in error, with a modification only of the clause in the policy respecting the location of the dwelling insured. The dwelling being occupied at the time the insurance contract was made and the policy delivered, the terms of the policy with respect to continued occupation of the same would apply and govern the rights of the parties here unless waived, which as a fact was not done in the instant ease.

The judgment is reversed and here rendered in favor of the plaintiff in error, and the costs of the trial court and of this appeal will be taxed against the defendant in error.


source: Caselaw Access Project

author: CARL, J.

license: Public Domain

text:
    TULLOS v. CHURCH, County Judge, et al.
    (No. 5400.)
    (Court of Civil Appeals of Texas. San Antonio.
    Dec. 7, 1914.)
    1. Counties (§ 196) — 1Contracts—Existing Debt Limit — Injunction. .
    In view of Rev. St. 1911, art. 4643, subds. 1, 2, providing that a writ of injunction may be granted when the applicant is entitled to the relief demanded, and it requires the restraint of some act prejudicial to him, and where, pending litigation, a party is doing or threatening to do some act in violation of the right of the applicant, a taxpayer in a county may not only maintain a suit to enjoin the execution of a void debt, but to prevent illegal tax levy, in excess of the county’s constitutional debt limit.
    [Ed. Note. — For other eases, see Counties, Cent. Dig. § 308; Dee. Dig. § 196.]
    2. Counties (§ 196) — Indebtedness — Injunction — Petition.
    A taxpayer’s petition, in a suit to enjoin a county from an illegal tax levy to meet a contract obligation in excess of the constitutional debt limit, must affirmatively show that the alleged prior indebtedness had been legally created, and was a valid and subsisting obligation against the county, when the contract obligation was sought to he created.
    [Ed. Note. — For other cases, see Counties, Cent. Dig. § 308; Dec. Dig. § 196.]

      3. Counties (§ 222) — Action on Obligations.
    Plaintiff, in a suit to obtain a judgment on an obligation of a county, must plead and prove all the thing's requisite to make it a valid and binding obligation.
    [Ed. Note. — For other eases, see Counties, Cent. Dig. §§ 355-359;» Dec. Dig. § 222.]
    Appeal from District Court, Live Oak County; E. G. Chambliss, Judge.
    Action for injunction by W. Tullos against E. H. Church, County Judge, and others. Judgment for defendants, and plaintiff appeals..
    Affirmed.
    Swearingen & Ward, of San Antonio, for appellant. Denman, Franklin & McGown, of San Antonio, and Dougherty & Dougherty, of Beeville, for appellees.

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

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

   CARL, J.

This suit was instituted by W. Tullos, appellant, against E. H. Church, county judge, and the members of the commissioners’ court of Live Oak county, and the county and district clerk and county treasurer, for an injunction to restrain the execution and delivery of any contract with the Alamo Construction .Company, the Midland Bridge Company,, or any other person or company, and to restrain the execution and delivery of any warrant or warrants in any sum for the payment of any part or all of any contract for bridge purposes; the petition alleging, substantially: That the plaintiff is a property taxpaying citizen of Live Oak county; that the total value of taxable property in that county is $4,642,000; and that “there is now and was on the 17th day of October, 1914, an outstanding indebtedness created by the county commissioners’ court for road and bridge purposes amounting to approximately $75,811.74,” the gross items of which are set forth, as well as the due dates. It is further alleged that the outstanding existing indebtedness requires an annual levy and collection in taxes in the sum of more than $7,000, and that:

“The annual tax that must be levied and collected to pay these obligations of the county of Live Oak, Tex., now existing and outstanding, is in excess of 15 cents on the $100 of the valuation of all property in the county of Live Oak, Tex.”

The petition also sets out the following order of the commissioners’ court:

“On this the 15th day of September, A. D. 1914, being the second day of the regular September term, A. D. 1914, all members of this commissioners’ court of Live Oak county being present, there came on to be heard the matter of building the bridges and approach, to wit: Four bridges on the Kittie-Oakville Road and five bridges on the George West-Lyne Ranch Road and an approach to the Nueces River Bridge, and issuing of warrants in the payment therefor and the levying of a tax for payment of said warrants and interest thereon, and bids for the building of the said bridges and approach having been duly advertised for as provided by law, and the Alamo Construction Company having made the lowest bid therefor, is hereby awarded the contract for said work on the express condition that a final contract shall be drawn up satisfactory to all parties to the contract and that the aforementioned successful bidder shall give bond satisfactory to all parties in the sum of $5,500 conditioned on the satisfactory completion of said work according to said contract and the full performance by said Alamo Construction Company of said contract. It is further ordered by the commissioners’ court that the warrants of Live Oak county be issued to Alamo Construction Company now for the payment for said bridges and approach, in the'sum of $10,895, being the amount of said bid; but it is further provided and ordered that said warrants shall not be delivered to said Alamo Construction Company, except in payment for labor done and material purchased and delivered to said Alamo Construction Company, except in payment for labor done and material purchased and delivered at Kittie and George West, according to the estimates made by Bartlett and Ranney, engineers of San Antonio, Tex., of the value of such material and labor, provided that not more than 80 per cent, of such amount of warrants need he delivered until the work is finally accepted by the county, and upon such final settlement all remaining of said warrants shall be delivered as per contract. And it is further ordered that warrants of Live Oak county for $700 be issued to Bartlett and Ranney; said warrants are for p'ayment for plans, specifications, and inspection of construction of the above-described work and traveling expenses in connection therewith. And it is hereby further ordered that a road and bridge tax be and is hereby levied annually for Live Oak county sufficient to pay annually, the interest on all of the warrants above ordered issued to the Alamo Construction Company and to Bartlett and Ranney and sufficient also to pay each year an amount equal to 2 per cent, of the principal of said warrants into a sinking fund for the payment of said warrants.”

The debt thereby sought to be created is alleged to be in addition to the debts herein formerly shown. The suit is to restrain the execution of the contract and the execution and delivery of the warrants provided for in said order, which are payable in five years, because the county has exhausted its borrowing capacity for road and bridge purposes, and that no special tax for road and bridge purposes has been voted by the people.

The trial court sustained the general demurrer and'the following special exceptions:

“First. Plaintiff’s petition is insufficient, in that it does not show that any injury or threatened injury will be caused to plaintiff by the doing of the acts sought to be enjoined in said petition of any interference or threatened interference with any legal right of the plaintiff, for said petition seeks to show that the signing of the contract and the issuance of the warrants sought to be enjoined are in excess of the county of Live Oak’s authority to create indebtedness, and that if signed and issued respectively will create no obligation on the county, and said county and said plaintiff will not be bound in any manner to pay the same, and that the petition does not show that the acts sought to be enjoined can possibly create any obligation against or do any damage to the county of Live Oak or to plaintiff.
“Second. Said petition shows no equity, in that it does not show any damage that can accrue to the county or to plaintiff, but, on the contrary, shows only that the effect of said contracts and said warrants will be, if signed and issued, that the bridge company and plaintiff will build said bridges for said county and accept their payment therefor the county’s certificates of indebtedness which the plaintiff alleges are void, because the county has no right to issue them. That said petition shows only that said bridge company may build said bridges for Live Oak county free of charge, and against such action plaintiff shows no cause for the issuance of your honor’s injunction.
“Third. And further excepting to said petition, these defendants say that it is insufficient in that it does not show upon its face that the plaintiff has a plain and adequate remedy at law, in that, if the indebtedness evidenced by said contract and warrants is in excess of said county’s power to create a debt, the collection of any taxes from the plaintiff to pay said debt can he successfully resisted by him in an action at law, and the collection ■ of said warrants against the county can be successfully resisted by said county in an action at law.”

Appellant declined to amend, his cause was dismissed, and he has prosecuted this appeal.

When analyzed, this case narrows down two propositions: First, as to whether a taxpayer can maintain a proceeding to enjoin the execution of a void debt on the part of the county; and, second, whether it is necessary for the bill to plead all the facts which would show that the debts already in existence against the county had been regularly created and were valid and subsisting obligations, at the time the debts complained of were sought to be created.

If the allegations of the petition are true, and sufficient to show that the county of 'Live Oak has exhausted its power to create obligations for road and bridge purposes, and that debts already in existence would require all of the 15-cent tax on the $100 taxable valuation, and no special tax for those purposes has been voted, then there would be a cause of action. It does not seem to be questioned that a taxpayer may maintain an injunction to prevent a wrongful application of public funds. And if he may prevent the misapiDlication of public funds after' those fund,s are in hand, we see no sound reason why he may not intervene to prevent the creation of a contract illegally, by means of which funds are to be obtained. Judge Brown says:

“The citizen need not wait until an unlawful contract has been consummated, but may prevent the wrongful act by injunction.” City of Austin v. McCall, 95 Tex. 577, 68 S. W. 791, citing Crampton v. Zabriskie, 101 U. S. 609, 25 L. Ed. 1070.
“In that case Justice Field stated the law in this language: ‘Of the right of resident taxpayers to invoke the interposition of a court of equity to prevent an illegal disposition of the moneys of the county, or the illegal creation of a debt which they in common with other property holders of the county may otherwise be compelled to pay, there is at this day no serious question. The right has been recognized by the state courts in numerous cases; and, from the nature of the powers exercised by municipal corporations, the great danger of their abuse and the necessity of prompt action to prevent irremediable injuries, it would seem eminently proper for courts of equity to interfere upon the application of the taxpayers of a county to prevent the consummation of a wrong, when the officers of those corporations assume, in excess of their powers, to create burdens upon prop-1 erty holders. Certainly, in the absence of legislation restricting the right to interfere in such cases to public officers of the state or county, there would seem to be no substantial reason why a bill by or on behalf of individual taxpayers should not be entertained to prevent the misuse of corporate powers. The courts may be safely trusted to prevent the abuse of their process in such cases.’ ”

See, also, Rev. St. art. 4643, §§ 1, 3; Morris v. Cummings, 91 Tex. 618, 45 S. W. 383; City of Covington v. Dodds, 152 Ky. 617, 153 S. W. 964; Day Co. v. State, 68 Tex. 526, 4 S. W. 865; City of Brownwood v. Brown Telegraph & Telephone Co., 152 S. W. 709; Sullivan v. Dooley, 31 Tex. Civ. App. 589, 73 S. W. 82.

In a note to the case of Pierce v. Hagans, 36 L. R. A. (N. S.) page 9, we find how this subject has been dealt with in other jurisdictions :

“An action was brought by a taxpayer for an injunction to restrain the officers from creating illegal debts in excess of revenue, and from levying and collecting taxes in payment thereof. It was held that an injunction would be granted. Bradford v. San Francisco, 112 Cal. 537, 44 Pac. 912. The court said: ‘AYe conclude, then, that in a proper case municipal officers may, at the instance of a taxpayer, be restrained from contracting illegal debts, and from levying and collecting taxes for the payment thereof, and from enforcing the payment of such taxes.’ ”

See, also, the following cases cited in the same footnote: Springfield v. Edwards, 84 Ill. 626; Ballard v. Cerney, 83 Neb. 606, 120 N. W. 151; Pepper v. Philadelphia, 181 Pa. 566, 37 Atl. 579; City Water Supply Co. v. Ottumwa (C. C.) 120 Fed. 309; French v. Burlington, 42 Iowa, 614.

In the light of the foregoing authorities, we hold that a taxpayer may not only maintain a suit for injunction to restrain the wrongful use of public funds, but may do so to prevent the illegal acquisition of funds by attempting a tax levy in excess of the constitutional limit.

So, we pass to the consideration of the second question, as to whether it is necessary for the petition to show that the debts already in existence against the county had been regularly created and were valid subsisting obligations of the county at the time this contractual obligation was sought to be made.

AVhere a suit is brought seeking to obtain a judgment on an obligation of the county, there seems to be no doubt that it is essential that plaintiff plead and prove all the things requisite to make it a valid and binding obligation. McNeal v. City of Waco, 89 Tex. 88, 33 S. W. 322; Biddle v. City of Terrell, 82 Tex. 335, 18 S. W. 691; Texas Water & Gas Co. v. City of Cleburne, 1 Tex, Civ. App. 580, 21 S. W. 393. And' this would seem to require that, in addition to showing that it was created in a regular manner, it should also be shown that the obligation is within the constitutional limitation of taxation, and that a tax was provided to pay interest and create a sinking fund.

“The rule of pleading that the statements of a party are to be taken most strongly against himself is reinforced in injunction suits by the further requirement that the material and essential elements which entitle him to relief shall be sufficiently certain to negative every reasonable inference arising upon the facts so stated, from which it might be deduced that he might not, under other supposable facts connected with the subject, thus be entitled to relief.” Gillis v. Rosenheimer, 64 Tex. 246; Cotulla v. Burswell, 22 Tex. Civ. App. 329, 54 S. W. 614; City of Paris v. Sturgeon, 50 Tex. Civ. App. 522, 110 S. W. 459; 10 Ency. Plead. & Prac. pp. 923, 927; Schlinke v. De Witt County, 145 S. W. 665.

In line with the general rule of pleading in injunction matters, as above noted, we hold that it was necessary for the petition to Show affirmatively the facts which would make the alleged prior indebtedness of the county valid subsisting claims against the county; and where those things do not appear the petition is subject to a general demurrer. It was not alleged in this case that the prior existing debts of the county had been created regularly by order of the court and a tax levy made to pay interest and create a sinking fund, or that same were to be paid in whole or in part out of current revenues on hand. Therefore the court did not err in sustaining the general demurrer.

If the petition had been good as against a general demurrer, the action of the trial court would not be upheld in sustaining the special exceptions, for reasons appearing in the first part of this opinion.

The judgment of the trial court is affirmed.


author: WILLSON, C. J.

text:
    ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. ANDERSON.
    (No. 1270.)
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 15, 1914.
    Rehearing Denied Nov. 19, 1914.)
    1. Master and Servant (§ 238) — Injury to Servant — Contributory Negligence — Custom.
    Under railroad rules that all main line switches in yards be set and locked for main track, proof that it was not customary for foreman operating a hand car to look at the target to see the position of the switch would not relieve him, approaching the switch and knowing that, if it was open, his car would be derailed, from the due exercise of ordinary care to ascertain whether it was open or closed, and his failure to look was negligence.
    [Ed. Note. — For other cases., sea. Master and Servant, Cent. Dig. §§ 681, 743-748; Dec. Dig. § 23S.1
    2. Appeal and Error (§ 1047) — Motion to Strike — Prejudicial Error.
    Where the record did not show but that the verdict might have been based entirely on incompetent testimony, the refusal to strike the testimony was reversible error.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4132, 4133, 4146-4152; Dec. Dig. § 1047.]
    Appeal from District Court, Titus County; H. F. O’Neal, Judge.
    Action by T. J. Anderson against the St. Louis Southwestern Railway Company of Texas. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded for a new trial.
    This is the second time this case has been before this court. On the former appeal a judgment in favor of appellee was reversed, and judgment was here rendered that he take nothing by his suit, on the ground; First, that it appeared appellant had not been guilty of negligence as charged against it; and, second, that it appeared that ap-pellee had been guilty of negligence which was a proximate cause of the injury he suffered. 124 S. Wi. 1002. The Supreme Court, having granted a writ of error, without directly determining whether the conclusion reached by this court that it appeared appellant had not been guilty of negligence was correct or not, affirmed the judgment rendered here, on the ground that it did appear that appellee was guilty of negligence as found by this court. 104 Tex. 340, 134 S. W. 1175. Afterwards that court, on a rehearing granted to appellee, set its judgment aside, and reversed the judgment rendered here, on the ground that there was testimony to support a finding that appellee was not guilty of contributory negligence. 104 Tex. 340, 138 S. W. 107. The nature of the case is fully stated in the opinions of this court and the Supreme Court which may be found in the volumes of the Southwestern Reporter cited above. The testimony in the record on this appeal does not appear to be materially different from the testimony in the record on the firSt appeal.
    Rolston & Rolston, of Mt. Pleasant, Glass, Estes, King & Burford, of Texarkana, and E. B. Perkins and D. Upthegrove, both of Dallas, for appellant. B. Q. Evans and T. D. Starnes, both of Greenville, L. E. Keeney, of Texarkana, and Ward & Ward, of Mt. Pleasant, for appellee.

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

   WILLSON, C. J.

(after stating the facts as above). Of the 44 assignments in appellant’s brief, we think none of those entitled to consideration presents a reason why the judgment should be reversed, unless it is the twentieth, twenty-first, of twenty-second, in which complaint is made of certain portions of the argument of appellee’s counsel to the jury, the twenty-fourth, in which complaint is made of a side bar remark made by said counsel in the presence of the jury, the twenty-fifth or thirty-eighth, in which complaint is made of the conduct of said counsel in propounding certain questions to witnesses, the fortieth, in which complaint is made of the conduct of the officer in charge of the jury, who, it is claimed, communicated to them while they were deliberating as to their verdict certain matters prejudicial to appellant’s rights, or the tenth, in which complaint is made of the action of the court in refusing to strike out and exclude from consideration by the jury certain testimony of the witness Huff. As the assignment' last specified will be sustained, and the judgment reversed for the error of the court in refusing to exclude the testimony referred to, we will not undertake to determine whether the other assignments specified, or any of them, should be sustained or not, but will assume that on another trial the rules intended to insure the fair and orderly trial of cases will be carefully observed, and that the questions made by those assignments will not again arise.

At the time he was injured appellee was the foreman of a fencing gang, and was operating a hand car over appellant’s main line track within the yard limits of its depot in North Ft. Worth. As a result of its running into an open switch, the car was derailed, whereby appellee and other men on it were thrown to the ground. The target on the switch stand was there for the purpose of indicating to appellee and others operating cars and engines on the track whether the switch was open or closed. It was without defect of any character, and plainly indicated that the switch, was open. Had he looked toward it as he approached the switch, appel-lee could have seen the target at any time after he got within 300 yards of it, and had he seen it he would have known from its position that the switch was open. Had he discovered that the switch was open at any time before he got within 30 feet of it, he could have stopped the ear, and so have avoided the accident. He testified that he did not look at the target as he approached the switch, and sought to excuse his failure to do so on the ground, among others, that, because of certain rules promulgated by ap-„ pellant, he had a right to assume, and did, without looking at the target, that the switch was closed. The rules referred to, so far as it is necessary to state them, were as follows:

“All main line switches in yards must invariably be set and locked for main track.”
“When a main track switch is set for a train, the person attending such switch must go to a point on the opposite side of the track at least 15 feet from such switch stand and remain there until the train has passed over" the switch.”

On the first trial of the case appellant contended that it appeared that other rules,- and not those set out above, applied to the situation presented to appellee, but the Supreme Court held the testimony authorized a finding to the contrary, a finding that appellee was justified in assuming from the absence of any one near the switch that it was closed, and a finding that 'appellee therefore was not guilty of negligence in failing to look at the target. Had appellee on the last trial been content to rely upon the testimony the Supreme Court thought .was sufficient to support a finding that he was without fault, the question made by the tenth assignment would not have arisen on this appeal. It seems, however, he was unwilling to rely on that testimony, and, as is shown by the bill of exceptions reserving that question, proved by his witness Huff that it was not customary, and had never been the custom, for a man operating a hand car to look to the target to see the position of the switch. This testimony was admitted without objection on the part of appellant, but it afterwards moved to exclude same on the ground that “it was,” quoting from the bill, “wholly irrelevant and immaterial, because a custom cannot excuse Anderson from performing his duty, unless that custom is known to the railway company and has been agreed to by it; on the further ground that the testimony invades the province of the jury and is giving an opinion on a mixed question of law and fact, whether or not it was Anderson’s duty to look at the switch target, whether it was customary or not.”

Had the testimony been objected to when it was offered, it is clear, we think, it should have been rejected; for the existence of such a custom would not have relieved appellee of the duty resting on him to use ordinary care as the hand car approached the switch to ascertain whether it was closed or not. Knowing, as he did, that the car was approaching the switch, and knowing, as he did, that if the switch was open when the car reached it, the ear would be derailed, appellee, we think, would have been guilty of negligence, as a matter of law, notwithstanding such a custom, if, not being excused from doing so on the grounds pointed out by the Supreme Court, he neglected to look to the target to see whether the switch was closed or not. He had no right, because of such a custom alone, to shut his eyes to a situation made obvious to him by the position of the target. Yet, for aught we can determine to the contrary from the record before us, the finding of the jury in his favor may have been based entirely' on the custom shown to exist by the testimony in question. They may have believed the rule requiring one of appellant’s employes to be near the switch while it was open had no application to the situation presented to appellee, and therefore that he had no right to assume from the absence of any one near it that it was closed, and yet have believed he was free from fault in not looking to the target to ascertain the position of the switch, because of the custom of men operating hand cars not to look to it.

Ordinarily in objection to testimony urged for the first time in a motion to exclude it is not entitled to favorable consideration it might deserve if made at the time the testimony was offered. Appellee insists this rule should be applied and the assignment overruled. But we do not agree that the discretion conferred upon the trial judge with reference to the exclusion of improper testimony admitted without objection- was rightly exercised, and are of opinion that his action in refusing to strike out tlie testimony, in view of the case made by the record, was error requiring the judgment to be set aside. Accordingly the judgment will be reversed and the cause will be remanded for a new trial.


author: LEVY, J.

text:
    BULLOCH v. MISSOURI, K. & T. RY. CO. OF TEXAS.
    (No. 1310.)
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 19, 1914.
    Rehearing Denied Dec. 3, 1914.)
    1. Appeal and Error (§ 882) — Review—Invited Error — Instructions..
    Where a petition for injuries, suffered by reason of catching cold in an unheated car, alleges that plaintiff at the time was in perfect health, except a slight weakness incident to an operation for appendicitis, plaintiff cannot_ object that an instruction malting it the carrier’s duty to heat the car so that a person in normal health and physical condition would not suffer inconvenience stated too low a degree of warmth.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 3591-3610; Dec. Dig. § 882.]
    2. Trial (§ 251) — Instructions—Application to Issues.
    A petition for injuries to a passenger, suffered by reason of an unheated car, alleging that plaintiff was at the time in perfect health, except a slight weakness incident to a prior operation for appendicitis, is insufficient to authorize the submission of an issue of aggravation of previous injury.
    [Ed. Note. — Por other cases, see Trial, Cent. Dig. §§.587-595; Dec. Dig. § 251.]
    3. Appeal and Error (§ 1066) — Harmless Error — Instructions.
    A party may not allege error as to instruction on an issue not pleaded by him.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. § 4220; Dec. Dig. § 1066.]
    4. Trial (§ 260) — Instructions Covered by Main Charge.
    A requested instruction sufficiently covered by the main charge is properly refused.
    [Ed. Note. — Por other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.}
    5. Appeal and Error (§ 759) — Briefs—Assignments.
    An assignment of error not copied in the brief will not be considered.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. § 3094; Dec. Dig. § 759.]
    Appeal from District Court, Hunt County; A. P. Dehoney, Judge.
    Action by J. W. Bulloch against the Missouri, Kansas & Texas Railway Company of Texas. Prom a judgment for defendant, plaintiff appeals.
    Affirmed.
    The appellant brought the suit against ap-pellee company to recover damages for injuries to Ms wife, alleged to have been suffered in consequence of its negligent failure to supply needed heat in one of its coaches on which she was a passenger from Dallas to Greenville. The defendant, besides denial, pleaded negligence of the wife proximately causing her suffering. There is a conflict of evidence as to whether or not the defendant company was guilty of negligence in failing to supply the coach with needed heat from the cold weather, and there is conflict of evidence as to contributory negligence of the wife in the several respects pleaded. These several questions were by the court submitted to the jury, and were by the jury decided adversely to the plaintiff. We find the verdict of the jury fully supported by sufficient legal evidence. There is no point made on the appear in respect to the evidence.
    Evans & Carpenter, of Greenville, for appellant. Dinsmore, McMahan & Dinsmore, of Greenville, for appellee.

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

   LEVY, J.

(after stating the facts as above). The charge of the court authorized the jury to return a verdict for the plaintiff for the injuries sued for, upon the finding by the jury that:

(1) “Defendant’s employes in charge of said train failed to properly beat the car in which plaintiff and his wife were riding, and to keep the same warm to the extent that a person in normal health and physical condition traveling thereon would not suffer inconvenience and injury from the cold;” and (2) “that such failure to heat and keep said car warm, if there was such failure, was negligence” proximately causing the injuries.

Appellant predicates error upon this paragraph of the charge in defining the degree of warmth that was essential to the demand of his wife as, being “to the extent that a person in normal health and physical condition traveling thereon would not suffer inconvenience and injury from the cold.” Appellant pleaded in his petition:

“That at the time of the exposure causing the injuries herein set forth she was in perfect health, suffering only from a slight weakness and disability that would be naturally incident "to an operation for appendicitis, performed prior to that time at the Baptist Sanitarium in Dallas.”

Appellant alleges that the defendant failed to discharge its duty to his wife as a passenger, in this:

“The weather was cold, damp, and disagreeable, and it was necessary for the protection of the passengers on that train that said train bé heated and kept warm, but that, notwithstanding the cold, disagreeable weather, the defendant, through its agents and servants, failed and neglected to keep the coaches warm and comfortable, but, on the contrary, the coach in which plaintiff’s wife rode from Dallas to Green-ville was allowed to be without fire or warmth, and was cold, open, damp, and disagreeable; that plaintiff’s wife became very cold, her feet were cold and her body was chilled, and she was caused to suffer a chill and rigor while in said train, in consequence of said exposure, which resulted and caused her to contract a severe cold and la grippe, causing chronic injury and inflammation of the lungs and bronchial tubes and tuberculosis of the lungs.”

Properly construing the petition, the plaintiff’s ease, it must be considered, is founded on the claim that his wife, being “in perfect health, suffering only from a slight weakness naturally incident to an operation for appendicitis, performed prior to that time,” at the time she became a passenger was caused to suffer a severe illness and permanent impairment of health through the negligence of defendant in allowing the car “to be without fire or warmth” and “cold, open, damp and disagreeable.” The exact degree of warmth that is essential to passengers, considering the varying predisposition of persons to heat and cold, cannot clearly be defined, and becomes a question that must be dealt with as the proof in each case must authorize. Under a condition of weather that is “cold, damp, and disagreeable,” as alleged here, it may be the exercise of a high degree of care on the part of the railway company towards a passenger in supplying the heat in the coach needed to prevent inconvenience and injury to persons generally of normal health.' By claiming in the petition that his wife was in good health and had assumed the relation' of passenger in that good condition of health, the court’s charge in requiring the car to be heated to the degree essential to the need of a person in normal health was but measuring the liability of the defendant to plaintiff in accordance with the declared fact of the petition that the wife was in that normal condition. Had the jury determined under this charge, as they were authorized by its terms to do, that there was a negligent failure to supply the heat needed by a passenger of normal health, such verdict in favor of the plaintiff would have support in, and certainly be in accordance with, his pleading. Plaintiff, at most, could ask no more than his petition averred. It is not believed, in view of the pleading, that appellant can very well insist that the court grievously erred in authorizing a verdict in his favor upon the finding that the railway company negligently failed to keep the coach to that degree of warmth for his wife that ivas essential to her as a person of normal health and physical condition. As there was no injury to appellant, the assignment is overruled. Rule 62a (149 S. W. x).

The second assignment predicates error in the fourth paragraph of the court’s charge substantially the same as in the preceding paragraph, in defining the degree of ■warmth of the ear as being that essential to “persons in normal health and condition.” The fourth paragraph, however, undertakes to submit a phase of negligence to the jury dependent upon special circumstances, and quite different from that submitted in the third. The instruction now being considered authorizes the plaintiff to recover of defendant damages upon the ground that the negligent failure to keep the coach in needed heat “aggravated her condition” of health and physical condition, which already “was impaired prior to taking the journey on defendant’s train on January 6, 1912.” The petition did not aver that at the time she became a passenger she was suffering from seriously impaired health, and that such condition was known to the employes in charge of the car. The petition averred a contrary condition of health. It was incumbent, we think, upon appellant to allege these special circumstances in order to be entitled to have submitted such issue to the jury. And failing, as appellant did, to allege the facts showing the legal liability sought by the instruction to be enforced, he would not be entitled to insist upon a reversal of the judgment by reason of the challenged instruction. Appel-lee could well insist, as it does, that no injury authorizing reversal could be predicated by appellant upon instructions respecting an issue not pleaded by him. The assignment is overruled.

The third assignment is overruled on the same ground that the second assignment is overruled.

The fourth assignment is overruled. The charge correctly presents an issue in respect to contributory negligence raised by the answer and the evidence.

The fifth assignment is overruled. The question sought to be covered by the special charge was sufficiently covered by the court’s main charge.

As the sixth assignment is not copied in the brief, we cannot understandingly pass on it, and therefore do not consider it, because of the failure to comply with the rules in respect thereto.

The judgment is affirmed.


author: HODGES, J.

text:
    ROGERS et al. v. HARRIS.
    (No. 1345.)
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 18, 1914.
    Rehearing Denied Dec. 3, 1914.)
    1. Guardian and Ward (§' 44) — Authority to Lease.
    Rev. St. 1911, arts. 4124, 4136, authorize a guardian to manage and control the ward’s property, and to lease the same and collect the rent, but require him to account for reasonable rent when he is not ordered to lease. Articles 4137 and 4139 authorize the court to order a lease for not exceeding one year, and on complaint require the guardian to show cause why he should not be required to rent, and to make an order in such case. 'Held,, that a guardian, renting without an order, was not limited to a lease for a year, but had power to lease for a longer term.
    [Ed.1 Note. — Eor other cases, see Guardian and Ward, Cent. Dig. §§ 192-201; Dec. Dig. § 44.]
    2. Guardian and Ward (§ 44) — Authority to Lease.
    A guardian at common law can lease a ward’s real estate for any term of years not expending beyond minority.
    [Ed. Note. — Eor other cases, see Guardian and Ward, Cent. Dig. §§ 192-201; Dec. Dig. § 44.]
    3. Landlord and Tenant (§ 76) — Action for Rent — Evidence.
    Evidence in action by a guardian for rent held to justify a finding that no agreement was made permitting defendants to sublet.
    [Ed. Note. — Eor other cases, see Landlord and Tenant, Cent. Dig. §§ 225-230; Dec. Dig. § 76.*]

      4. Appeal and Error (§ 1074) — Harmless Error.
    Where there is a full statement of facts, and no issue raised which cannot be satisfactorily disposed of without conclusions requested, and no objection is raised on appeal to the consideration of findings of fact and conclusions of law certified in the record, error, if any, in failing to file findings of fact and conclusions of law within the time prescribed by statute, is harmless.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4248-4252; Dec. Dig. § 1074.]
    Appeal from District Court, Harrison County; H. T. Lyttleton, Judge.
    Suit by Mae Harris against Webb Rogers and others. Prom’a judgment for plaintiff, defendants appeal.
    Affirmed.
    Young & Abney, of Marshall, for appellants. Beard & Davidson, of Marshall, for appellee.

      For other eases 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

   HODGES, J.

Mrs. Mae Harris, for herself and as guardian for her minor son, James S. Harris, instituted this suit in the court below against the appellants to recover the sum of $1,000 alleged to be due for the rent of certain store buildings in the city of Marshall, Tex. The facts show that Mrs. Harris is the guardian of the person and estate of James S. Harris, a minor alleged to be 10 years of age; that the minor owns, subject to Mrs. Harris’ one-third life interest, some lots in the city of Marshall, on which are two brick storehouses, which, prior to July 21, 1913, had been leased to the appellants for a term of three years, beginning January 1, 1912, for $75 per month. In the rear of those two buildings is a space which at that time was covered by some other buildings of an unsubstantial nature. On July 21, 1913, the appellants wrote the following letter to Mrs. Harris:

“July 21, 1913.
“Mrs. J. W. Harris — Dear Madam: If you will erect a one-story brick building in the rear of the building occupied by us, between them and Simpson’s barber shop, same to cover all space, and to have two front doors, with partition in center, with two doors, with awning in front, we will take same, together with the buildings we now have, at a lease price of $100 per month from date of completion, for three years, with privilege of renewal for three years at the same price. We agree upon completion of same to pay $1,000, ten months’ rental, in advance, with guaranty from you in case the building should be destroyed, or partially destroyed, that all rental paid in advance you will refund same immediately.
“Yours truly,
“Rogers Brothers,
"By W. P. Rogers, Jr.”

This offer was accepted by Mrs. Harris, and the construction of the buildings contemplated commenced. A short time before their completion, about the last of September of that year, permission was given to the appellants to move some of their goods into the new buildings, and they have' retained possession since that time. Just before the buildings’ were completed, however, T. W. Davidson, the attorney who represented Mrs. Harris in her business transactions, had an interview with appellants with reference to subletting the premises. Appellants testified that Davidson agreed that, if they would release Mrs. Harris from her obligation to construct an awning in front of the buildings, she would allow them to sublet. According to the testimony of Davidson, he made no such absolute agreement, but told them that, if they would yield the provision of the contract requiring the construction of the awning, he would submit the matter to Mrs. Harris and advise her to give permission for subletting the premises. It developed, however, that Mrs. Harris declined to accede to such terms, and the awning was thereafter constructed. About October 1, 1913, after the buildings were completed, Mrs. Harris demanded payment of the $1,000, which the appellants had agreed to pay in advance. This was refused, unless Mrs. Harris would execute a lease giving to the appellants the privilege of subletting. She declined to do this, but it appears that she tendered a lease in all other respects in compliance with the original contract between the parties.

In their answer to the pleadings of the plaintiff, the appellants allege that it was their understanding that they were to have the privilege of subletting, and that they regarded this as a part of the contract which Mrs. Harris was to carry out. In their answer, the appellants, among other things, say:

“The defendants aver that theg have repeatedly offered to the plaintiff the one thousand dollars mentioned in their said proposal, if the plaintiff would give them a memorandum in writing sufficient to bind the plaintiff upon said contract, and the plaintiff refused to accede to the defendants’ request, and for the purpose of harassing and annoying defendants, and injuring the commercial standing of the .defendants, who are engaged in conducting a retail mercantile business, filed this suit against the defendants. On, to wit, the 1st day of November, 1913, the defendants tendered to the plaintiff in person the sum of one thousand dollars, and then and there requested her to sign the lease as stipulated for in said proposition of July 21, 1913, with the addition of a clause allowing defendants to sublet, and she refused to carry out her contract and sign said lease. Defendants then and there offered to pay and tendered plaintiff her one hundred dollars for the October rent, 1913, and she refused to accept the same. The plaintiff’s said agent prepared a written lease in accordance with the proposition and the agreement of the parties, except it omitted the clause allowing the defendants to sublet, and a copy of same is hereto attached, and if the clause allowing defendants to sublet is included it expresses the agreement of the parties.”

After some other averments, unnecessary to notice in this connection, the petition concludes with the following prayer:

“Wherefore the defendants pray that this honorable court first determine whether or not said contract is capable of specific performance in its- entirety, and, if the court should decide that said contract is capable of specific performance in its entirety, the defendants pray that they have judgment against the plaintiff for specific performance of said contract, and the defendants be allowed to pay said sum of $1,000 into court, and they here now tender said amount to the plaintitf in open court. In the event the court should determine that said contract is incapable .of specific performance, as to the interest of the minor, James Harris, in the property involved in the litigation, then they pray that they have, specific performance so far as the one-third interest of the plaintiff, Mrs. Mae Harris, in the property, and that they have judgment against Mrs. Mae Harris for their damages on account of the plaintiff being unable to carry out said contract in its entirety, and, in the event it should be determined that said contract cannot be specifically performed in part, then the defendants pray that their rights and the rights of all parties be adjudicated, and that their former contract be held valid, and the defendants be allowed to retain the use of the two stores fronting on Wellington street, and of so much of the two rear stores as covers the ground which they used and enjoyed prior to the erection of the new stores, and that they have judgment against the plaintiff for their damages. The defendants further pray that the defendants be given such other relief in law and equity as they may show themselves to be justly entitled (to), and they here now offer to do equity, and to do and perform such acts as the court may require as a' condition precedent to obtaining such relief.” ■

The case was submitted to the court without a jury, and a judgment rendered in favor of Mrs. Harris for the amount sued for, and directing her to execute a lease to be delivered to the appellants in accordance with the terms expressed in the written proposal of July 21, 1913.

There are two grounds relied on for the reversal of that judgment. The first is that Mrs. Harris had no legal power to lease the property in controversy for more than one year, and for that reason she was unable to perform her part of the contract upon which the promise to pay the $1,000 was based. The raising of that question on appeal is somewhat inconsistent with the attitude of the appellants in the trial court. In their prayer for relief they asked that Mrs. Harris be compelled to perform the contract in its entirety. By “entirety” they probably meant one embracing a written permission for them to sublet the premises. The court did just what they asked for, except to require Mrs. Harris to incorporate that provision. The omission of that provision from the written lease would' not, of course, in any manner affect the authority of Mrs. Harris to execute a valid lease for three years. But, aside from that objection to the consideration of those assignments at this time, we think Mrs. Harris did have the legal authority to execute a valid lease contract for the term of three years as originally contemplated by the parties. At common law the guardian might lease the ward’s real estate for any term of years not extending beyond the ward’s minority. 1 Washburn on Real Prop. 404 ; 21 Gyc. 85, and cases cited in notes. The following provisions of the statute indicate the powers which a guardian may exercise in such matters:

“Art. 4124. The guardian of the estate is entitled to the possession and management of all property belonging to the ward, to collect all debts, rents, or claims due such ward, to enforce all obligations in his favor, to bring and defend suits by or against him; but, in the management of the estate, the guardian shall be governed by the provisions of this title.”
“Art. 4136. The guardian may rent the improved property of the ward, other than such property as is named in article 4134 without an order of the court authorizing him to do so, and either at public or private renting; but, when he rents without an order of court, he shall be required to account to the estate of the ward for the reasonable value of the rent of such property for the time the same was so rented.
“Art. 4137. The court may order the farm, plantation, manufactory, business, or any improved property of the estate to be rented, either at public'or private renting, for any length of time, not exceeding one year, and upon such terms and conditions as the court may deem for the best interests of the ward.”
“Art. 4139. Any person, upon complaint in writing filed with the clerk of the county court, may cause the guardian of the estate of a ward to be cited to appear at a regular term of the court and show cause why he should not be required to rent" out the farm, plantation or other improved' property of the ward, or why he should not be required to lease for improvement the wild or unimproved lands of the ward; and, upon the hearing of such complaint, the court shall make such order as may, in his judgment, be for the best interest of the estate.”

The fact that the court may order the guardian to rent the improved property of the ward for any length of time not exceeding one year can hardly be construed as a limitation of the time for which the guardian may lease it when not acting under an order of tHS court. This provision doubtless means that, in case the guardian fails to perform his duty of leasing the ward’s property and is compelled to do so by the court, the court may direct a renting for any term not exceeding one year, or, if the guardian desire to proceed under the order of the court in renting the ward’s property, in order to protect himself from liability on his bond, he may apply to and receive authority from the court to rent the property for a length of time not exceeding one year. The fact that the guardian is made liable upon his bond, when the lease is not made under the direction of the court, is an indication that he was to have more latitude in dealing with the ward’s property according to his own discretion.

The second ground urged for reversing the judgment is the refusal of the court to require Mrs. Harris to execute a lease containing a provision permitting the appellants to sublet the premises. Assuming that this parol modification of the written contract might be ingrafted upon it and be specifically enforced, it nevertheless involved a contested issue of fact, and the state of the evidence is such that the court was justified in finding that no absolute agreement was made to grant such permission.

As still another ground for reversing the judgment,, it is contended that the trial court failed to file his findings of fact and conclusions of law within the time prescribed by statute. We find incorporated in the record findings of fact and conclusions of law certified to by the trial judge. No objection is raised to their consideration in this court by the appellee. Even if the court did fail to legally comply with the request of the appellants in this particular, there is nothing in the record to indicate that such failure has operated to the detriment of the •appellants in this appeal. There is a full statement of facts, and no issue is raised which cannot be satisfactorily disposed of without the conclusions requested. The error, if any, is harmless.

We find no just grounds for reversing the judgment, and it is accordingly affirmed.


text:
    SUPREME RULING OF FRATERNAL MYSTIC CIRCLE v. HOSKINS et al.
    (No. 1343.)
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 11, 1914.
    Rehearing Denied Nov. 19, 1914.)
    1. Insurance (§ 693) — Mutual Benefit Insurance — Actions — Sufficiency of Evidence of Death.
    Where a benefit insurance certificate provided for payment upon satisfactory proof of the death of the member, a by-law providing that the member’s absence or disappearance from his .last known place of residence for any length of time should not be evidence of his death, and that no right should accrue under his certificate, nor should any benefits be paid until conclusive proof had been made of his death, aside from any presumption arising by reason of Ms absence, was void under Rev. St. 1911, art.. 5707, providing that any person absenting himself, beyond sea or elsewhere, for seven years successfully shall be presumed to be dead,, unless proof be made that he was alive within that time, since the by-law, construed in connection with the .certificate, did not except the absence of a member from the risks assumed, but merely provided what should constitute “satisfactory proof,” thereby restricting a rule of eyidence, contrary to public policy.
    [Ed. Note. — For other cases, see Insurance, 'Cent. Dig. '§ 1833; Dec. Dig. § 693.]
    2. Insurance (§ 699) — Reinsurance—‘-‘Living, Contributing Members in Good . Standing” — Sufficiency of Evidence.
    The constitution and laws of a benefit society provided that any member who should ab•scond or depart from his last place of residence and remain away for one year without reporting his address to the secretary, should forfeit his membership; that the secretary should not receive from any person any assessment, dues, or fines on account of such member, but should .notify the person offering to make the payments that proof of the member’s location or residence was necessary, suspend the member, and report his action to the supreme secretary. Defendant took over the membership and affairs of such society by a contract providing that all “living, contributing members in good standing” thereby became members of defendant, and that benefit certificates issued to such members were thereby assumed by it. A member disappeared from his last known .place of residence more than a year prior to this contract and was not thereafter heard of within seven years from the date of his disappearance, but his dues had been paid and no attempt had been made to suspend him, though the facts were known to the local secretary, and reported by him to the society. There was no evidence that he was actually dead at the date of the contract. HeW, that the member was a contributing member in good standing at the date of the contract, and the evidence warranted a finding that he was a living member; especially as Rev. St. 1911, art. 5707, attaches no legal consequences to a person’s absence or disappearance, until the expiration of the seven years necessary to raise a presumption of death.
    [Ed. Note. — For other cases, see Insurance, Dec. Dig. § 699.*]
    3. Insurance (§ 755*) — Mutual Benefit Insurance-Suspension — Waiver or Estop-pel.
    Where the constitution and laws of a benefit insurance society provided that any member who should remain away from his last place of residence for one year should forfeit his membership; that the secretary should not receive assessments, dues, or fines on his account, but should notify the person offering them that proof of the member’s location or residence was necessary, suspend the member, and report his action to the supreme secretary, but, though a member’s disapearance was known to the local secretary and reported by him to the society, no notice was given to a person paying the dues and assessments that proof of the member’s location or residence was necessary, and, on the contrary, such payments were accepted and no attempt made to suspend the member, the society waived its right to suspend him, and was estopped from asserting a suspension to defeat a recovery on the certificate after he had been absent for seven years.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1907-1916; Dec. Dig. § 755.*]
    4. Death (§ 2*) —Presumption from Absence — Statutory Provisions — ‘ ‘Elsewhere.”
    ’ “Elsewhere” in Rev. St. 1911, art. 5707, providing that any person absenting himself beyond sea, or elsewhere, for seven successive years, shall be presumed to be dead, does not, as claimed, mean outside the state.
    [Ed. Note. — For other cases, see Death, Cent. Dig. §§ 1-3; Dec. Dig. § 2.

    For other definitions, see Words and Phrases, First and Second Series, Elsewhere.]
    Appeal from District Court, Gregg County; W. C. Buford, Judge.
    Action by Mrs. Margaret E. Hoskins and others against the Supreme Ruling of the Fraternal Mystic Circle. From a judgment for plaintiffs, defendant appeals.
    Affirmed.
    This suit is by the beneficiary upon a life insurance policy. Appellee is. the aunt of Joseph T. Hoskins, and his was the life insured. The policy was issued May 27, 1901, and soon thereafter was delivered to appel-lee, who regularly paid all the premiums ‘which became due upon it after issuance up to and including May, 1913. In the year 1905 Joseph T. Hoskins resided in Dallas, Tex., and was engaged in work there, and this was his last known residence. He w.as never seen nor heard of after the fall of 1905, though his aunt and relatives made immediate, continued, and very exhaustive, but unavailing, efforts to find or locate him. The defenses of tlie appellant are: (1) That'the by-laws, which are a part of the contract, provide that absence or disappearance of'a member shall not be evidence of the death of snch member, and no rights shall accrue until conclusive proof of actual death has been made; and (2) that in taking over the business affairs and members of the American Guild the appellant, by its contract, only assumed contracts on the lives “of all living, contributing members in good standing in the American Guild,” of date. May 27, 1907. There was a trial to the court without a jury, and judgment was rendered in favor of the appellee.
    The court made the following findings of fact, which are supported by the evidence, namely:
    “1. Besides the matters of fact expressly, or by provisions of law, admitted to be true by the pleadings of the plaintiff and defendant, I find the following facts to have been proven on said trial:
    “2. That Joseph T. Hoskins lived at Long-view, Tex., practically all his life, up to July, 1904, when he left for Ft. Worth, Tex., where he remained for a period of probably over one year, during which time he was seen by a number of people and to them expressed affection and regard for plaintiff Mrs. Margaret E. Hoskins and intention to return to his home in Longview, and was last seen in Dallas in the fall of 1905, and that he resided in Dallas at that time, and since said time he has never been seen or heard of since nor shown to be alive. Mrs. Hoskins heard from him regularly up to the time of his disappearance.
    “3. That diligent search and inquiry has been made for said Joseph T. Hoskins in Dallas and Ft. Worth, and advertisement, with a liberal reward (inserted in a large daily newspaper in Dallas), for the address or whereabouts of Joseph T. Ho'skins. Such inquiry or advertisement made or inserted two or three years after the disappearance of said Joseph T. Hoskins. That no information was ever received from said Joseph T. Hoskins as a result of said inquiry or advertisement.
    “4. That L. D. Stansbury, local secretary of the American Guild and worthy collector of the defendant order, knew when Joseph T. Hoskins left Longview, and knew that soon thereafter his address and whereabouts became unknown, and that such facts were communicated to the American Guild by L. D. Stansbury, its local secretary, prior to May, 1907.
    “5. That the fact of the disappearance of Joseph T. Hoskins was communicated to the defendant order by L. D. Stansbury. its worthy collector, several times between 1907 and 1913.
    “6. That defendant had notice from plaintiff, through her attorney, on or about April 22, A. D. 1913, that Joseph T. Hoskins had disappeared for a long period of time and his address was unknown and has been so for a long period of time; that in May, 1913, defendant furnished blanks for proof of death of Joseph T. Hoskins, and mailed them to the. attorney Of plaintiff; that same were returned later properly filled out, and proof of death shown by seven years’ absence, supported by affidavits of a number of persons; that in May, 1913, defendant accepted payment of the April dues of Joseph T. Hoskins, paid by plaintiff Mrs. Hos-kins; that said dues have never been returned to plaintiff Mrs. Hoskins.
    “7. That L. D. Stansbury, local secretary .and worthy collector of the American Guild and defendant order from 1904 to 1913, was, during said time, a state and national officer of said orders.
    “8. That all dues, assessments, or premiums due the American Guild or defendant on the policy of Joseph T. Hoskins have been promptly paid up to May, 1913, when further dues (were) refused by defendant, and that plaintiff has paid defendant $205 in such dues.
    “9. That Joseph T. Hoskins was a living, contributing member in good standing of the American Guild in good standing in May, 1907, when defendant reinsured the members of the American Guild.”
    The contract of assumption and all the bylaws of the appellant are made a part of the findings of fact here, and. as they can be referred to in the record, it is unnecessary to set them out.
    Meador & Davis, of Dallas, for appellant. M. L. Cunningham, of Longview, for appel-lees.

      For other cases see same topic and section NUMBJ2R in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   LEVY, J.

(after stating the facts as above). [1] The laws of the appellant, as well as the laws of the American Guild, contain the following article:

“The absence or disappearance of a member of the Fraternal Mystic Circle from his last known place of residence for any length of time shall not be evidence of the death of the member, and no right shall accrue under the certificate of membership to a beneficiary, nor shall any benefits be paid until conclusive proof has been made of the death of the member aside from any presumption that might arise by reason of his absence.”

And the appellant pleaded as a defense the provision set out. The trial court, after hearing the case on its merits, made the conclusion of law in respect to the by-law:

“That a provision making ineffective proof of death by seven years’ absence is void, being contrary to article 5707, R. S. of Texas, 1911.”

• Believing, as we do, that the ruling of the court in the respect mentioned was correct and should be sustained, the first and second assignments of appellant, challenging the conclusion of law,- are overruled.

The by-law we are considering, which was made a term of the contract, provides that absence without intelligence “shall not be evidence of the death of the member,” arid requires “conclusive proof,” before a liability to pay the policy arises, “of the death of the member aside from any presumption that might arise by reason of his absence.” As expressed in the face of the policy, though, the substantial thing the parties had contracted for was that the insurance company should pay the beneficiary the sum of money specified “upon satisfactory proof of the death of the said member while in good standing upon the books of the supreme chapter.” The language of the by-law, considered in connection with the language of the policy, would clearly indicate that the insurance company and the insured were agreeing that “satisfactory proof,” as expressed in the policy, of the death of the insured must, in order to enforce liability to pay the policy, rest in and be confined exclusively to proof of the actual death of the insured. As the agreement of the parties, as shown by the language of the by-law, was entirely in respect to “the evidence” that would be “satisfactory proof” of the death of the insured, it would be a restrictive provision of contract in respect only to a rule of evidence, and not a stipulation excepting absence as in the nature of the risk assumed. Therefore the agreement, as expressed in the bylaw, declaring that absence without intelligence shall not be evidential data to enforce liability to pay the policy, would, if controlling upon the courts as a term of private contract, operate to prevent the application of article 5707, R. S. of 1911, to such evidential fact, and the legal consequences attached to the fact, as proven here, of absence for seven years without intelligence would be ineffective. As the courts are required, as a part of their duty, to enforce the statutes as the law prescribes shall be done, a failure of the court to apply the statute mentioned to the facts of this case would be allowable only upon the ground that the parties had the legal right of contract in respect to the proof. It is generally said that no person has a vested right in rules of evidence. Cooley’s Cons. Lim. (7th Ed.) 524; 3 Page on Contracts, § 1765. The reason, therefore, as laid down in Cooley, supra, is because “the rules of evidence pertain to the remedies which the state provides for its citizens, and generally in legal contemplation neither enter into and constitute any part of any contract nor can be regarded as being the essence of any right which a party may seek to enforce.” As it is correct, according to the rule, that no person has a vested right in rules of evidence, and it cannot be regarded as constituting any part of a private contract, then it would follow that parties may not go to the extent of making a valid term of private contract which has the effect of making ineffective an existing statute declaring the legal consequence that attaches to proof of certain facts. In the case of Eaton v. Ins. Co., 136 S. W. 817, the court held void a bylaw which sought to deprive a policy holder of a statutory right to sue in the county where the insured resided at the time of his death. See, also, Travelers’ Ass’n v. Branum, 169 S. W. 390. Under the statute making a fire insurance policy a liquidated demand in case of total loss of a building, an agreement of the parties providing for the payment of the actual value was held void as contravening the statute and paralyzing its execution by the courts. Ins. Co. v. Levy, 12 Tex. Civ. App. 45, 33 S. W. 992. We see no reason why the principle of public policy applied to the latter case above should i not apply to the question involved in the instant one, when in each instance the agreement interrupted the application of an express statute.

Appellant cites cases allowing waiver of the statute of limitations, as being analogous to the question here, but we do not believe that the principle involved in those cases would extend to the question here. Such cases only furnish the restricted rule that parties may go to the extent of agreeing to modify or waive a course of procedure such as pertains to merely personal privileges or such as are created by statute for their benefit. There is a wide difference between the waiver of procedure that pertains merely to personal privileges or benefits, and agreement that contravenes an express statute provided for the enforcement of law in civil actions by the court. The case of Kelly v. Benefit Ass’n, 46 App. Div. 79, 61 N. Y. Supp. 394, cited by appellant, seems to broadly assert, without discussion or furnishing a reason or principle for the ruling, that the parties had a legal right to agree upon a provision practically identical with the instant one, and that it was not invalid. We are not inclined to follow the same as authority for a similar ruling in the instant case.

The contract made between appellant and the American Guild at the time appellant took over the membership and affairs of the American Guild provided, “that all living, contributing members in good standing as of this date (May 27, 1907) in the American Guild do hereby become members in good standing of the Supreme Ruling of the Fraternal Mystic Circle,” and “that benefit certificates in force heretofore issued or assumed by the American Guild to its now living, contributing members in good standing, are hereby assumed by the said the Supreme Ruling of the Fraternal Mystic Circle.” The constitution and laws of the American Guild provided:

“Section 14. Any member who shall abscond, remove, or depart from his home, or last place of residence and remain away for a period of one year, and not report to the secretary of his chapter his location, his post office address, shall thereby forfeit his membership, and his certificate shall become null and void. The secretary ' shall not receive from any person any monthly assessment, special assessment, dues or fines for or on account of any member who has been absent and whose residence has been unknown for one year, but he shall notify the person offering to make such payments that proof of the member’s location or residence is necessary, and he shall at once suspend the member and report his action to the supreme secretary with his reasons therefor, together with the post office address of the beneficiary and the last known residence of the member. Upon satisfactory proof of the member’s whereabouts the supreme governor may order him reinstated in the order without expense. In ease of the failure of the member, his beneficiary, or other persons interested in his certificate to make proof of the member’s whereabouts, his suspension shall remain permanent and binding, and neither the member, his beneficiary, nor any other person, shall have any right to participate in the funds of the order.”

The appellant makes the point that it is not liable to the beneficiary under its contract, because the insured had disappeared for more than 12 months prior to May 27, 1907, and had become suspended by virtue of the terms of the laws of the American Guild, and therefore was not a “living, contributing member in good standing of the American Guild” at the time of the contract. The assignments of error numbered 3 to 13 inclusive, presenting the point, we conclude should be overruled. It is not disputed that all dues and premiums called for by either the American Guild or appellant were paid in due time up to and until May, 1913. The insured therefore was certainly a “contributing” member of the American Guild on May 27, 1907. And, as the court finds as a fact from all circumstances in evidence that the insured “was a living, contributing member” in May, 1907, when the appellant reinsured the members of the American Guild, we would be bound by that finding of fact that he was “living,” unless it was unwarranted by proof. There is no pretense in the evidence that he was actually dead in May, 1907, and there is an absence of any proof showing, or from which it could be inferred, that he died at a specific time. The court’s finding of fact was therefore warranted. Article 5707 does not, we think, attach legal consequences to absence without intelligence until the expiration of the seven years. The insured being, according to the evidence, both “living” and “contributing,” and there being no pretense in the evidence of any attempt to suspend or of there being actual suspension of him until May, 1913, it would appear that the insured was “a member in good standing in the American Guild” when the appellant rein-sured the members of the American Guild. In this connection it appears that appellant issued its certificate of reinsurance in May, 1907. By issuing the certificate of reinsurance it would thereby appear, and could be inferred, that appellant decided and considered the insured, within the terms of its contract with the American Guild, as a member in good standing, and was willing to assume and continue the contract of insurance held by the insured. Having so contracted with the insured, and receiving all dues, the appellant would be bound by its contract of assumption, and could not avoid the same in the absence, as here, of pleading and proof of fraud, accident, or mistake. It further appears from the court’s findings of fact, which are supported by proof:

“That L. D. Stansbury, local secretary of the American Guild and worthy collector of the defendant, knew when Joseph T. Hoskins left Longview, and knew that soon thereafter his address and whereabouts became unknown and that such facts were communicated to the American Guild by L. D. Stansbury, its local secretary, prior to May, 1907. That the fact of the disappearance of Joseph T. Hoskins was communicated to the defendant order by L. D. Stansbury, its worthy collector, several times between 1907 and 1913.”

Having knowledge, as it appears, of the facts that the insured had “removed” or “departed” from his home or last- place of residence, and, notwithstanding this knowledge, continuing, without any attempt at suspension, to collect and receive all dues, the American- Guild would, in the facts, be held to have waived any right of suspension of the insured, and would be estopped from asserting a suspension. Therefore, assuming, for the moment, that the appellant could go behind its own contract of reinsurance and predicate any right of forfeiture under the American Guild that the American Guild could legally assert, the appellant could predicate no' greater legal right than could the American Guild. According to the by-law it is required of the secretary, in order that the suspension be finally operative, that he shall “notify the person offering to make such payments that proof of the member’s location or residence is necessary.” There is no evidence that the secretary gave this notice, nor that he made any attempt to suspend the member. Clearly, neither the American Guild nor the appellant could very well assert that there is proof that the American Guild or appellant had so far brought itself within the terms of its by-law regarding suspension as that it could assert suspension under the terms of the law governing suspension. Failure on the part of the secretary of the American Guild or the appellant to perform the duty as to notice required would preclude any insistence that the insured was suspended under the bylaw at the time of the contract of May 27, 1907.

By the fourteenth assignment of error appellant contends that “elsewhere” under article 5707, R. S., means beyond the confines of Texas. The appellant cites Turner v. Sealock, 21 Tex. Civ. App. 594, 54 S. W. 358, and Latham v. Tombs, 32 Tex. Civ. App. 270, 73 S. W. 1060. The case of Woodmen v. Ruedrich, 158 S. W. 170, explains these two cases and decides against appellant’s contention.

The judgment is affirmed.

HODGES, J., disqualified, and not sitting.


author: WILLSON, O. J.

text:
    INTERNATIONAL & G. N. RY. CO. v. J. B. BRYANT & CO.
    (No. 1354.)
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 26, 1914.)
    Appeal and Erp.op. (§ 1042) — Pleadings— Answer — Exceptions—Prejudice.
    Where berries were damaged by the negligence of the initial carrier in furnishing an improper car, such carrier was not prejudiced by sustaining an exception to its answer pleading a stipulation that the carrier’s liability should terminate on delivery to the connecting carrier.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4110-4114; Dec. Dig. § 1042.]
    Appeal from District Court, Smith County; Jasse F. Odom, Judge.
    Action by J. E. Bryant & Company against the International & Great Northern Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.

      Fitzgerald, Butler & Bulloch., of Tyler, Morris & Sims, of Palestine, and Wilson, Dabney & King, of Houston, for appellant. Price & Beaird, of Tyler, for appellee.

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

   WILLSON, O. J.

Appellees were the consignees'of a car load (350 crates) of strawberries delivered to appellant at Tyler for transportation over its line and connecting lines of railway to Amarillo. Appellees claimed that, because appellant “negligently failed and refused to furnish a properly equipped car with sufficient ice bunkers and to properly ice and refrigerate the car it did furnish,” the berries were so damaged in transit as to be worth $700 less than they otherwise would have been worth. Special issues were submitted to the jury, and they found that the berries were in good condition when delivered to appellant for transportation, and were in bad condition when they reached Amarillo. The jury further" found that the car furnished by appellant was not a proper one, and that same was not properly equipped for transporting the berries, and further that same was not properly iced and refrigerated while in appellant’s custody in transit. The jury having further found that the berries were worth $372 less when they reached Amarillo than they would have been worth had they reached there in good condition, the court on their findings and findings of his own rendered judgment in appellees’ favor for said sum of $372.

It is not believed either of the assignments presents a reason why the judgment should be reversed.

If the trial court erred, as is asserted, in sustaining an exception to the portion of the answer setting up a stipulation in the, bill of lading covering the shipment, that appellant’s liability should terminate when it delivered the berries to a connecting carrier, the error should be treated as harmless, in view of the fact that it appears from the record that there was testimony to support a finding, involved in the judgment, that the damage to the berries was due to negligence on the part of appellant in furnishing a car unfit for use in transporting the berries.

It. was not error to overrule the objections urged to the testimony of the witnesses who loaded the 54 crates of berries at Swan. The testimony was admissible. 1 Wigmore on Ev. § 98.

The judgment is affirmed.