text:
    GRANT et al. v. STEPHENS et al.
    (No. 8729.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Dec. 1, 1917.
    Rehearing Denied Jan. 19, 1918.)
    1. Winns <&wkey;681(2) — Consteuction — Fee Simple in Teust.
    Under a will, which, after providing for the payment of debts, etc., devised all the real and personal property to executors and trustees for management for 20 years following testator’s death, with ultimate distribution of three-quarters to testator’s grandchildren, with power and duty of making sales of any property when necessary to carry out the purposes of the will, the executors and trustees were vested with a fee-simple title to the whole estate.
    2. Wills <&wkey;693(l) — Poweb of Sale — Fee.
    Under such will, the power to sell implied the power to sell the whole title, requiring, as a condition precedent, a fee-simple estate.
    3. Wills &wkey;>693(3) — Consteuction — Devise in Teust — Corpus and Income.
    Such will showed testator’s intention to include in the estate devised to the trustees not only the corpus of the property, but the income, in view of the power and duty of the trustees to loan on security, and to invest moneys of the estate, if not needed for specified purposes.
    4. Wills <&wkey;448 — Consteuction — Presumption Against Intestacy.
    The presumption is that a testator intended to dispose of his entire estate and not to die intestate, either as to the whole or as to any part thereof, though the presumption against partial intestacy arises only where intent to pass whole estate is expressed in some form, and not where testator’s language is plain and unambiguous.
    5. Wills <&wkey;i479 — Construction—Determination by Executors and Trustees.
    Under a will making the executors and trustees umpires to decide all doubtful questions of construction according to their best judgment, without resort to the courts, their construction of the will to include, within the estate devised to them in trust, the income as well as the corpus, fairly and honestly made, and reasonably to be predicated upon the terms of the will, would not be overruled, though, if their decision evidenced a gross departure from the manifest intent of the testator, it could not be said that such decision was the result of an honest endeavor to find that intent.
    6. Wills &wkey;>449 — Consteuction—Intestacy —Reverter to Trust.
    ' Under will devising real and personal estate in trust for certain purposes, and three-quarters of the residue for equal division among testator’s grandchildren, and requiring the trustee to provide the widow with a suitable furnished home, a horse and buggy, a milch cow, and to pay her $125, per month for life, and where the widow elected to claim her share of the community. estate, the estate which would have been required to satisfy the provision of the will to her was not a partial intestacy, but reverted to and became a part of the trust estate.
    7. Wills <&wkey;448 — Presumption Against Intestacy-Gift of Residue.
    Where the residue of testator’s property is given by will every presumption is against an intended intestacy, as a residuary clause is presumed to cover an ineffectual bequest, and in order to exclude such bequests, the intent so to do must appear from appropriate language, or a clear implication.
    8. Wills <&wkey;448 — Intestacy—Presumption.
    , No presumption of an intent to die intestate as to any part of the testator’s property is to be made, where the language of his will can fairly be construed to dispose of his whole estate.
    9. Wills <&wkey;856 — Consteuction—Trust—In-testacy.
    Where testator made provision for the support of two children, who were non compos mentis, and such provision was not required by reason of the court’s election that they should take under the law as heirs of their deceased mother, whose will had been set aside, the bequests to such children did not lapse and make a partial intestacy, but fell into the estate in trust ultimately for his grandchildren.
    Appeal from District Court, Parker County; Bruce Young, Special Judge.
    Suit by Mrs. Susie Grant and others against I. W. Stephens and G. A. Holland, executors and .trustees of the will of J. R. Couts, deceased. Judgment for defendants, and plaintiffs appeal.
    Affirmed.
    See, also, 48 Tex. Civ. App. 476, 107 S. W. 913 ; 110 S. W. xiii.
    . Capps, Cantey, Hanger & Short and David B. Trammell, all of Ft. Worth, Adams & Stennis, of Dallas, and B. K. Goree and H. A. Turner, both of Ft. Worth, for appellants. Hood & Shadle, of Weatherford, and I. W. Stephens, of Ft. Worth, for appellees.
   BUCK, J.

This suit was brought by appellants Mrs. Susie Grant, joined by her husband, A. N. Grant, Leah C. Anderson, a feme sole, Martha 0. Putman, suing by and through J. T. Putman, her husband and guardian of her person and estate, and Mary C. Burnett, joined by her husband, S. B. Burnett, against I. W. Stephens and G. A. Holland, executors and trustees of the will of J. R. Couts, Mrs. Margaret Moseley, and her husband, H. L. Moseley, Weatherford College, and its trustees, Mrs. Sallie Gouts, surviving wife .of decedent, and all the grandchildren now living, mentioned by name, of J. R. Couts, deceased, to obtain a construction of the will of said J. R. Couts for the purpose of determining whether said testator by the terms of the .will disposed of his entire estate, and the income, rents, and revenues thereof, and to determine who is entitled to same. Mesdames Grant, Anderson, Putman, and Burnett, plaintiffs, and Mrs. Moseley, one of the defendants, are the daughters and sole heirs at law of J. R. Couts, deceased. Mrs. Moseley, not joining as party plaintiff in the suit, was made party defendant.

Defendants I. W. Stephens and G. A. Holland, executors and trustees, answered by way of general demurrer, special exceptions, a general denial, plea of res adjudicata, a plea of limitation of four years, and by way of further answer and pleas as will be indicated in the course of this opinion. The cause was tried before the court without the intervention of a jury and judgment rendered for defendants.

The court filed his findings of fact and conclusions of law as follows:

“Findings of Fact.
"(1) I find that J. R. Couts died at Weather-ford, in Parker county, Tex., the place of his domicile, November 29, 1904, seised and possessed of a large estate consisting of real estate, bank stock, and other personalty, which he undertook to dispose of by will, dated July 29, 1902, which will was duly probated in Parker county, Tex., - day of March, 1905, in which I. W. Stephens and G. A. Holland were named as executors and trustees, and by the terms of which the administration of said estate was placed in their hands without bond and was taken out of the probate court, which will is copied in full in the second amended original petition of plaintiffs herein.
“(2) I find that said executors and trustees qualified as such and took charge of said estate about-day of March, 1905, and proceeded to handle and administer the same under said will, and have sold the real estate, and paid the debts of testator, and made other disbursements and the estate now left in their hands, consisting of bank stock and land notes, amounts to about $240,000.
“(3) I find that soon after the death of J. R. Couts, his children caused the will of their mother, the first wife of J. R. Couts, to be set aside, of which will J. R. Couts was the sole beneficiary, and this was followed by a partition of the estate in the hands of said executors and trustees between them and the heirs of said wife and the widow of J. R. Couts, deceased, which left in the hands of said executors and trustees, after a large portion had been received by said heirs and widow, an estate amounting to about $140,000, the date of this partition being -- day of —-, as shown by decree of district court of Parker county, Tex., introduced in evidence, by the terms of which all interest of other parties in the estate left in the hands of said executors and trustees was divested out of them and vested in said trustees, to be held by them under said will, all parties interested being parties to said partition suit.
“(4) .1 find that the children and grandchildren and the heirs and widow of J. R. Couts are as alleged by plaintiffs in their second amended petition to which reference is made for their names, ages, and residences.
“(5) I find with reference to Weatherford College that it was a chartered educational institution located in Weatherford, Tex., when said will was made and ever since, owning valuable grounds and buildings and engaged in school work, that it has not ceased to exist and been dissolved as alleged by plaintiffs, but the same is still in existence and a going concern with a regular board of trustees duly appointed as provided in the charter, and that a continuous board of trustees has been in existence since long before the death of said Couts, duly appointed by the authorities of the M. E. Church South, of which said Couts was a member.
“(6) I find that a suitable home for the widow of J. R. Couts in Weatherford would have been worth about $5,000, and a horse and buggy and milch cow about $500.
“(7) I find that the widow Couts elected to claim her community interest in said estate, and received from said executors and trustees more than $80,000 in satisfaction of this claim, and she was therefore required to forego the benefits provided for her in the will.
“(8) I find that the persons provided for in fourth subdivision of the will, children of testator, had been adjudged lunatics, and were confined in the asylum during the life of testator, and that he had been paying the necessary expense fo_r their maintenance, and that this was a certain sum annually, quarterly, or monthly, and that it was his intention that his executors should continue to do this, and that the amount reasonably sufficient and proper to care for them in future was easy of ascertainment, and could be made definite and certain; but I further find that in said partition proceeding the district court of Parker county elected for them and each of them to reject the provisions thus made for them in order that they might- claim as heirs of their mother, which they did through their guardians, and received a large part of the estate in the hands of said executors and trustees as heirs of their mother, the first wife of J. R. Couts. ■ The amount expended by said executors and trustees they were required to account for in said partition decree, to which reference is here made for exact terms and sums as to this and all other matters involved.
“(9) I find that the net accumulations of said estate since it went into the hands of said executors and trustees amounts to approximately $100,000.
“(10) I find that said executors and trustees by th§ir second amended original answer filed herein as well as in their first amended original answer have rejected the construction placed on said will by the pleadings of plaintiffs, and have claimed the right to construe same, as provided therein, according to their best judgment.
“Conclusions of Law.
“(1) The plaintiffs are not entitled to have the will of J. R. Couts construed, as they have attempted to construe it in their pleadings, and are not entitled to take from the executors and trustees any part of the estate now in their hands.
“(2) Said executors and trustees would be authorized and warranted in placing the following construction on said will, and the same would be reasonable, to wit:
“(a) It was the intention of J. R. Couts in making his will to provide for grandchildren as a class, and to give them three-fourths of his estate and Weatherford College one-fourth, after the other purposes named in the will had been accomplished.
“(b) The title of the estate was placed in the executors and trustees named in the will in trust for said grandchildren and for said college as well as for the other purposes named in the .will, and this was a valid trust.
“(c) No distinction was made or intended by the testator to be made in dealing with, said estate between corpus and income, but his intention was to dispose of by will of all property belonging to him at his death and all accumulations and accretions to arise- during the period of 20 years therein mentioned. It was his intention to give his grandchildren and to Weath-erford College the income of said estate the same as it was his intention to give them the Corpus of said estate and in the same proportion, that is, one-fourth to the college, and the rest to his grandchildren, and this disposition of the income was valid, and none of it descended to his heirs at law.
“(d) The election of the widow to take her community interest and not to take under the will relieved the executors of the duty imposed on them by the second subdivision of the will, and thus whatever would have been required to meet this obligation remained a part of the estate devised to said executors and trustees, and it was the intention of said testator that it should so remain and be disposed of under the terms of said will as a part of his estate, and he did not intend that it should descend to his heirs.
“(e) The election by the court for those provided for in fourth subdivision of the will had a like effect on the provision there made for them, and whatever would have been required to carry out this bequest was intended after such election to remain a part of the estate to be disposed of under the will.”

The will of J. R. Couts is to be found, in the case of Couts v. Holland et al., 48 Tex. Civ. App. 476, 107 S. W, 913, writ of error denied 110 S. W. xiii, and we will not enlarge this opinion by including the document herein.

The contentions of appellants to sustain their asserted cause of action are contained in the proposition under the first assignment of error, to wit:

“The whole of testator’s estate having been devised to executors, upon executorial trusts, the interest of Weatherford College and the grandchildren is a mere executory interest, which will not ripen into an estate and become vested, if at all, until the expiration of 20 years from the date of testator’s death, and there being no express or implied devise of the intermediate rents and income, and no trust to accumulate the same and add it to the corpus to testator’s estate, it vests, as it accrues, in appellants. and Mrs. Margaret Moseley, as testator’s heirs at law;' and appellants are entitled to an accounting for their portion thereof. For convenience, we present the points involved under separate heads:
“(1) Item 1 of said will vests in testator’s executors a fee-simple title to his whole estate.
“(2) It is essential to the execution of the trusts imposed upon testator’s executors that the fee-simple title to his whole estate be vested in them.
“(3) The trusts imposed upon testator’s executors were mere executorial trusts, and not testamentary trusts.
“(4) There is no language in testator’s will that can be construed as a devise to Weather-ford College and his grandchildren of any estate, legal or equitable, but their interest is a mere contingent or executory interest, which will not ripen into an estate and become vested, if at all, until the expiration of 20 years from the date of testator’s death.
“(5) There being no express or implied devise of the income from said estate, pending the executory devise to Weatherford College and the grandchildren, and no trust to accumulate and add the same to the corpus of testator’s estate, it will not pass under the clause disposing of the remainder of testator’s estate at the expiration of 20 years, and is therefore undisposed of, and vests, as it accrues, in appellants and Mrs. Margaret Moseley, as testator’s heirs at law, and appellants are entitled to an accounting for their portion thereof.”

We agree with appellants that item 1 of the deceased’s will by appropriate language vests a fee-simple title to his whole estate in the executors and trustees, and that it was essential to the proper execution of the trust imposed that such title should be vested in them, to last until the expiration of the 20-year period, and the completion of the terms of the trust. By said item 1, during this time, said executors and trustees were expressly authorized and required to make sales, either public or private, of any of the. property of the estate, when deemed necessary by them to carry out the purposes of the will. “The power implied to sell is to sell the whole title, requiring, as a condition precedent, a fee-simple estate.” Kirkland v. Cox, 94 Ill. 415, cited and quoted from in Dulin v. Moore, 96 Tex. 135, 70 S. W. 742; Potter v. Couch, 141 U. S. 296, 11 Sup. Ct. 1005, 35 L. Ed. 721. In the will to be construed by us the express power is given the trustees to sell such portion of the estate as they may deem necessary to carry out the purposes of the imposed trust. But we think it is a reasonable construction of the will that it was the evident intention of the testator, as held by the trial court, to include in the estate so devised and bequeathed to the trustees, not only the corpus of the property, but the income and revenues derived therefrom, for the trustees were empowered, and it was made their duty,

“to loan on security deemed sufficient by them, or invest all [emphasis ours] moneys coming to their hands from time to time belonging to said estate, provided the same may not be needed for the purposes herein specified.”
“The presumption is that the testator intended to dispose of his entire estate, and not to die intestate either as to the whole or as to any part ■thereof, and the will should be so construed, unless this presumption is clearly rebutted by the provisions of the -will or by evidence to the contrary. * * * The presumption against partial intestacy, however, arises only where the intention to pass the whole estate is expressed in some form, and it cannot avail where the language used by the testator is plain and unam.biguous.”

See 40 Cyc. pp. 1409 to 1411,. and notes thereunder; Borland on Wills and Construction, p. 326, § 116; 1 Schouler on Wills, Executors and Administrators, § 490.

By the terms of the will, item 8, the executors and trustees named, in whose judgment, discretion, and honesty the testator evidently reposed great confidence, were made umpires to decide “all doubtful questions of construction in the interpretation of said will * * * according to their best judgment * * * without resort to .the courts.” In Couts v. Holland et al., 48 Tex. Civ. App. 476, 107 S. W. 913, writ denied, 110 S. W. xiii, it is held that this provision authorized the trustees to determine what property the will applies to, and what it does not, and does not limit them to a determination of what disposition was intended to be made of property to which it clearly applies. In Thompson on Wills, § 432, where the last-mentioned case is cited with approval, it is said:

“It is not unusual for the testator to provide in Ms will that all questions relative to the construction thereof are to be submitted to a certain designated person or persons, such as his executors, who shall act as umpire or arbitrator, and whose decision, if fairly and honestly made, will be final and binding on all parties interested.”

.In the instant case the chosen umpires have construed the will so as to include within the estate devised and bequeathed to them in trust the income as well as the corpus of the estate. Since we do not feel justified in holding that the conclusion reached by the executors and trustees upon this point was not fairly and honestly made, and reasonably to be predicated upon the terms of the will taken as a whole, it follows that we are not authorized, under the authorities, to overrule their decision. Of course, if the decision made by the trustees evidenced a gross departure from the manifest intent of the testator as disclosed in the will, then it could not be said that such decision was the result of an honest endeavor to find that intent, as held in Pray et al. v. Belt et al., 1 Pet. (U. S.) 670, 7 L. Ed. 309. But we do not find such a condition to exist here, and are of the opinion that said conclusion reached by the trustees, upon a question involving the proper construction of the terms used by the testator, is one reasonably reached and deduced from the language used.

The evidence discloses that the surviving wife of testator, -who was the second wife and not the mother of his children, elected to claim her share of the community estate of herself and deceased husband, rather than to take under the will, and that under said election she was shown to be entitled to and the trustees and executors paid her some $84,000. The appellants urge that they are entitled to a division of so much of the estate as would have been required to satisfy the trust provided under item 2 of the will, which stipulated that the trustees should provide the wife or widow with a suitable furnished home in Weatherford, and a horse and buggy and a milch cow, and pay her $125 per month so long as she might’live; that at least as to this extent and interest the testator must be held to have died intestate. It is evident to us that the intent of the testator was to provide for the support of his widow, and to safeguard her against want and poverty after his death. But it is also true that the testator must be held to have known that a considerable portion of the estate which he sought to vest in trust in the trustees consisted of the community estate of himself and his wife. It must be presumed that he knew the law, and realized that his surviving wife would have the right to elect whether she should take under the will or claim her interest in the community estate under the law. She could not do both, as is decided in Couts v. Holland et al., supra. In item 5 the testator provides that:

“After all my just debts shall have been paid and all reasonable expenses incident to the management of said estate, including reasonable compensation to said trustees for their services from year to year, shall have been deducted, and after the special charges made against the estate in items 2, 3, and 4 shall have been paid and provided for, the remainder of my said estate shall, at the expiration of twenty years from my death, be disposed of by said trustees, as follows: One-fourth part thereof shall go to the trustees of the Weatherford College, as an endowment for that institution of learning, and the rest shall be equally divided between my grandchildren, then living, who shall take per capita and not per stirpes, but if any of my grandchildren should then be dead, leaving child or children surviving, such child or children shall take per stirpes, the same, and to be treated in the division as a living grandchild.”

Where the residue of testator’s property is given by will, every presumption is to be made that no intestacy was designed. Duffield v. Morris, 8 Watts & S. (Pa.) 348; Welsh v. Gist, 101 Md. 606, 61 Atl. 665. A residuary clause is presumed to cover an ineffectual bequest. O’Connor v. Murphy, 147 Cal. 148, 81 Pac. 406; Lawrence v. Barber, 116 Wis. 294, 93 N. W. 30. And in order to exclude such bequests the intent so to do must appear from appropriate language or be a clear implication. No presumption of intent to die intestate as to any part of the property is to be made where the testator’s words as found in his will here can fairly be construed to dispose of the whole of it. Hofius v. Hofius, 92 Pa. 305; Raudenbach’s Appeal, 87 Pa. 51; Coleman v. Jackson, 126 S. W. 1179, writ denied. Therefore we are of the opinion that we cannot disturb the construction put on tins clause of the will by the trustees that it was the intention of the testator, in the event that it should not become necessary to meet the charges and pay out the funds provided for the care and support of the surviving wife, by reason of said wife’s election to take under the law rather than under the will, that the amounts so provided for such support and care revert to and become a part of the unexpended estate under the trust.

It further appears that testator’s first wife left a will making the testator the sole beneficiary; that subsequent’ to testator’s death the children of the testator and his first wife brought suit to set aside the will of their mother in which her interest in the community estate had been devised and bequeathed to their father. Said suit was defended by the executors, who prevailed in the lower court and in the Court of Civil Appeals, but a writ of error was granted by the Supreme Court, and the will was set aside Holland et al. v. (louts et al., 42 Tex. Civ. App. 515, 98 S. W. 233. In the partition suit which followed, the trial court on behalf of the two children, Martha Putman and J. R. Couts, Jr., who were both non compos mentis and represented by guardians, elected for them to take under the law as heirs of their deceased mother, whose will had been set aside, rather than to take under the will of their father. It is urged by appellants that the amounts provided in this will under item 4 for the support of these two children, not being used for the purpose designated, the bequests lapse, and that as to this portion of the estate the testator must be held to have died intestate; but for the reasons given in the discussion of the charge under item 2, we do not feel that the contention should be sustained.

We think it is a reasonable construction of the will that the testator meant to carve out of the estate only so much thereof as should be found necessary to provide for the support of the surviving widow and the two helpless children named, and that the whole of the estate after the charges mentioned had been satisfied should be vested at the expiration of the 20 years in the grandchildren and Weatherford College.

For the reasons given, all assignments are overruled, and the judgment of the trial court is hereby in all things affirmed.

'CONNER, C. J., not sitting, serving on writ of error committee at Austin.
      <S=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: BUCK, J.

license: Public Domain

text:
    HIX et al. v. TOMLINSON.
    (No. 8737.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Nov. 24, 1917.)
    1. Beokebs <&wkey;86(8) — Right to Commission —Evidence—Sufficiency.
    Evidence held to sustain verdict for broker for the full amount of commission claimed.
    2. Brokers <&wkey;63(l) — Rioht to Commission-Default of Principal.
    If a broker produced a buyer ready, willing, and able to buy, and failure to consummate the deal was due to the refusal of his principal, he could recover the agreed commission.
    3. Novation <S&wkey;7 — What Constitutes.
    Where defendant agreed to pay a broker a certain commission and later the broker agreed to accept a smaller commission if he would sign contract before a certain hour and defendant failed to sign it, there was no novation.
    4. Novation @=^12 — Presumptions.
    A novation which does not clearly appear will not be presumed.
    5. Novation <&wkey;12 — Burden of Proof.
    The burden of pleading and proof rests upon him who would rely on a novation.
    6. Appeal and Error &wkey;>1062(5) — Harmless Error.
    Where a broker sued for an agreed commission, and the defendant answered that there was a new contract for a smaller amount but that the purchaser refused to consummate»'it, and the jury found in favor of the original contract, whether the second agreement was made, and whether it was made on condition, was immaterial, and error in form of instruction submitting the issue of the second agreement was harmless.
    Appeal from Jones County Court; J. F. Lindsey, Judge.
    Action by W. R. Tomlinson against J. M. and J. O. Hix. Judgment for plaintiff, and defendants appeal.
    Affirmed.
    E. T. Brooks, of Anson, and J. P. Stin-son, of Abilene, for appellants. Joe C. Ban-del and C. P. Chastain, both of Hamlin, fox-appellee.
   BUCK, J.

This suit was filed by W. R. Tomlinson, a real estate broker, against J. M. and J. O. Hix to collect a commission of $700 alleged to be due by reason of plaintiff’s employment by defendants to sell or exchange cei-tain ranch property in Sterling county, Tex., and plaintiff alleged that he had px-ocured a purchaser for the ranch who was ready, able, and willing to purchase said ranch upon the terms and conditions agreed upon and stipulated by defendants; that defendants failed and refused to convey the land to the party who was so procured as a purchaser by plaintiff,- and failed and refused to pay said commission to plaintiff. De- ' fendants answered by way of general demurrer, special exceptions, and general denial, and specially pleaded that defendants agreed to pay plaintiff the sum of $400, provided he effected the exchange of lands, and that the prospective purchaser failed and refused to enter into the contract of exchange, though defendants were willing so to do. 'The cause was submitted to a jury on special issues, which were answered in favor of plaintiff, and from a, judgment for plaintiff in the sum of $700, with legal interest from date of judg-. ment, defendants have appealed.

The evidence discloses that the defendants, father and son, owned -a ranch in Sterling county, against which there was an indebtedness of $5,000 to the state and $3,000 to a private individual; that H. B. Lewis owned a farm of 1,000 acres near Hamlin, Jones county; that through the efforts of plaintiff the owners of the ranch and the owner of the farm were brought together; and that finally the defendants and Lewis agreed upon the terms of an exchange, to wit, that Lewis was to give Ms farm, assume the indebtedness of $11)000 on the ranch, and pay $3,000 in cash. These terms and the price of the ranch were the terms and price stipulated by defendants, and that defendants were willing to close the deal upon these terms, provided plaintiff would agree to accept a commission of $250 instead of $700, which latter amount they had agreed to pay in the way of commission at . the time they listed the ranch property with plaintiff. Plaintiff refused to accept the reduction in his commission, and Lewis stated that he ha.d nothing to do with the payment of the commission, and would give defendants until sundown of tlie following day to close the trade. Upon the return of plaintiff and one of the defendants, from an inspection of the ranch to their home in Hamlin, plaintiff called upon the son, J. O. Hix, several times, urging him to close the deal; but J. O. Hix declined to do so unless plaintiff would accept $250 in full for the commission due him from the defendants. This plaintiff refused to do. He then went to see the father,.J. M. Hix, and, after talking with him some time, plaintiff agreed, as a compromise, to accept $400 as his commission, provided the defendants would sign the contract of exchange, already prepared, before sundown of that da.y, telling him that when the sun went down Lewis would be relieved from his agreement to trade. J. M. Hix refused to sign the contract at that time, though plaintiff told him that, if Lewis refused to renew the trade on the next day, defendants would owe him (plaintiff) the $700, which he claimed they had agreed to pay him. On the day following this last conversation between plaintiff and J. M. Hix, all parties met in Hamlin, went to a lawyer’s office, and Hix agreed to sign the contract of exchange; but Lewis declined to do so, and the trade was not made.

The jury found that defendants had agreed to pay plaintiff $700 as a commission for his services in procuring an exchange of lands with H. B. Lewis on the terms and conditions stipulated by the defendants; that Lewis accepted the proposition of defendants for the exchange of lands with them, and he was ready, able, and willing to fulfill the terms of the trade stipulated by defendants; that plaintiff entered into a second agreement with defendants to accept $400 for his services, provided “that defendants would sign said contract before a certain time limit expired.” There is evidence in the record that J. O. Hix, at the time and before he, in company with plaintiff, went to show Lewis the ranch, stated that he would not pay $700 in the way. of commission; that $700 was too much; that he. would pay $250. Plaintiff insisted that, if the trade was made, defendants would have to pay $700, as they promised to do, and the controversy was left in this attitude during the trip to the ranch until the final agreement of the defendants and Lewis as to the terms of the trade, at which time defendants refused to consummate the deal unless plaintiff would reduce his claim for commission to $250.

We think the, evidence is sufficient to sustain the finding of the jury upon all the issues submitted to them, and that therefore we must find that defendants promised to pay $700 as a commission for the exchange of lands with Lewis, that plaintiff procured a purchaser who was ready, able, and willing to comply with the terms stipulated by defendants, and that defendants refused to consummate the trade on such terms. Hence it must be held that, if the failure to consummate the deal was due to the refusal of the defendants to make the trade, at that time plaintiff had earned and was entitled to the commission which defendants had promised to pay him. Goodwin v. Gunter, 185 S. W. 295.

Appellants insist, however, that plaintiff is not entitled to recover, because the evidence shows that he agreed with one of the defendants to accept $400 as a cpmmission, and that thereafter defendants expressed a willingness to carry out the terms of the deal and were prevented from so doing by the refusal of Lewis. The testimony of plaintiff on this issue is to the effect that he agreed with J. M. Hix to accept $400, “as a compromise,” provided Hix would sign the contract before sundown of that day. This Hix refused to do. Hence it cannot be held that the agreement by plaintiff, under the circumstances disclosed, to accept $400 in lieu of the $700 claimed, was a novation of the contract and agreement theretofore made between plaintiff and defendants with reference to the amount of commission to be paid. Plaintiff testified that, at the time of his agreement to accept the $400, he stipulated that defendant J. M. Hix should sign the contract before sundown of that day; that he stated further to Hix that, if on the next day Lewis refused to renew his acceptance of defendants’ terms, he (plaintiff) would be entitled to and would claim the $700 previously promised by defendants in the way of commission.

29 Oyc. 1134, says:

“Novation may be affected in three ways: (1) By the substitution of a new obligation between the same parties, with intent to extinguish the old obligation; (2) by the substitution of a new debtor in the place of the old one, with intent to release the latter; (3) by the substitution of a new creditor in the place of the old one, with intent to transfer the rights of the latter to the former.”

The same authority, on page 1138, expresses the law with reference to the question now under consideration in the following words:

“But no extinguishment is wrought if the arrangement is conditional, and the conditions are not fully complied with.” .

A novation which does not clearly appear will not be presumed. Scott v. Atchison, 36 Tex. 76, 80; Id., 38 Tex. 385, 390. Moreover, we are of the opinion that defendants’ answer is insufficient to constitute a plea of novation. The burden of pleading and proof rests upon him who would rely on a novation. 29 Cyc. 1139 A.

Complaint is made of the form of the submission of special issue No. 7, which is as follows:

“If you answer special issue No. 6, ‘Tes,’ then state the condition upon which. said second agreement was made by the plaintiff.”

It is urged that it -was error to submit the issue in this form, because the same was upon the weight of the evidence and led the jury to believe that there was a condition upon which said agreement was made. While we are of the opinion that the objection made by defendants below to the form of this submission, to the effect that the same was leading in its character, is well taken, yet we are of the opinion that the evidence amply sustains the findings of the jury in answer to the issues 1 to 5, inclusive, and that therefore the answers to issues 6 and 7 become immaterial. If plaintiff had procured a purchaser ready, able, and willing to close the deal for the ranch on the terms stipulated by defendants, and defendants refused without just cause to convey the property in compliance with the terms of the agreement, and defendants had agreed to pay plaintiff the full $700, all of which the jury found in response to the five issues mentioned, then it would become immaterial that subsequently plaintiff agreed to accept $400 as the basis of his commission, and it would also become immaterial as to the terms of conditions, if any, upon which he agreed to accept said less amount. Indeed, in the absence of a consideration moving to plaintiff to sustain the unexecuted claimed second agreement, the same, while still ex-ecutory, would not be binding upon plaintiff. Anson on Contracts (2d Ed.) p. Ill, and notes thereunder; 1 Elliott on Contracts, § 217, and cases cited.

Hence we conclude that there is no prejudicial error presented in any of appellant’s assignments, and that all assignments should be overruled, and the judgment affirmed.

CONNER, C. J., not sitting, serving on writ of error committee at Austin.
      <S&wkey;For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 200 S.W. — 57


author: SWEARINGEN, J.

text:
    PETERSON v. GRAHAM-BROWN SHOE CO.
    (No. 5957.)
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 23, 1918.
    Rehearing Denied Feb. 20, 1918.)
    1. PLEADING <&wkey;292 — Verification—“OPEN Account” — What Constitutes.
    In view of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3712, requiring a verified denial in suit on “open account,” supported by affidavit, the mere fact that the account sued on consisted of a single transaction did .not show that it was not an open account.
    [Ed. Note. — For other definitions, see Words - and Phrases, First and Second Series, Open Account.]
    2. Appeal and Error <&wkey;204(5) — Scope op Review — Preservation op Exceptions.
    Assignment of error, objecting to the form of the affidavit alleging that the account sued on under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3712, was as stated, with all “lawful -offsets,” is not reviewable, in the absence of objee-vit shall employ the words “just and lawful offsets,” is not reviewable, in the absence of objection to the admission of the account in evidence!
    3. Account, Action on <&wkey;>6(2) — Verified Dental — Sufficiency.
    In action on open account, a verified answer containing a general denial, a special denial of each item of the account, and a denial of indebtedness did not comply with Vernon’s .Sayles’ Ann. Civ. St. 1914, art. 3712, and did not overcome the prima facie case made by plaintiff’s sworn account.
    Appeal from Bexar County Court for Civil Cases; John H. Clark, Judge.
    Action by the Graham-Brown Shoe Company against C. T. Peterson. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    McCollum Burnett, of San Antonio, for appellant. W. H. Kennon and H. A. Hirsch-berg, both of San Antonio, for appellee.
   SWEARINGEN, J.

This is a suit upon an open account by Graham-Brown Shoe Company, appellee, against C. T. Peterson, appellant, for $267.22. The cause was submitted to the court-without a jury and judgment rendered in favor of appellee for the alleged amount. Appellee alleged:

“That heretofore, to wit, on or about the 31st day of October, A. D. 1916, the plaintiff sold and delivered to the defendant at his special instance certain goods, wares, and merchandise specified in the duly itemized and verified account hereto annexed, marked ‘Exhibit A,’ and made a part of this petition, and the defendant promised and agreed to pay plaintiff on demand the reasonable market value of said goods, and the amount charged in said account mentioned is the reasonable market value thereof at the time of such sale and delivery, to the total amount of $269.40. That defendant is entitled to and has received credit for merchandise returned to the amount of $2.18, leaving a balance due plaintiff of $267.22, which balance, though often requested, defendant has failed and refused to pay, and still so refuses, to plaintiff’s damage in said sum of $267.22.”

The Exhibit A, referred to and made a part of the petition, is as follows:

“Dallas, Texas, Dec. 12, 1916.
“C. T. Peterson, San Antonio, Texas, in account with Graham-Brown Shoe Company, Shoe Manufacturers and'Jobbers, Market and Elm Streets.
“Exhibit A.
“Graham-Brown Shoe Co., Manufacturers and Jobbers of Boots and Shoes, Exclusive Agents for Hood Rubber Co., Cor. Elm & Market ,Sts.
“Dallas, Texas, Oct. 31, 1916. “Sold to C. T. Peterson, San Antonio, Texas. Terms, 30 days net.
“State of Texas, County of Dallas.
“Before me, the undersigned authority, on this day personally appeared F. H. Kidd, Agt. Graham-Brown Shoe Company, who being duly sworn states upon oath that the account hereto attached against C. T. Peterson aggregating the sura of two hundred and sixty seven & 22/10o dollars is within his knowledge just and -true, that it is due, and that all lawful offsets, payments and credits have been allowed.
“F. H. Kidd.
“Subscribed and sworn to before me this 12th day of Dec. 1916.
“[Seal.] W. H. Keller,
“Notary Public, Dallas County, Texas.”

Appellant did not file a written denial under oath, stating that such account is not just or true in whole or in part, and, if in part only, stating the items and particulars which are unjust. On the contrary, the answer admitted that the items were purchased at the prices alleged; that all the items of the account alleged were delivered. The answer avers that great delay in delivery and failure to ship other goods also ordered caused appellant damages, pleaded in offset of appellee’s demand. The only evidence introduced was the verified account offered by appellee.

The first assignment, which we overrule, is that the court erred in rendering the judgment, because, as appears from the proposition, the account, being a single transaction, is not an open account as contemplated by the statute. Vernon’s Sayles’ Ann, Civ. St. 1914, art. 3712. The proposition has been determined adversely to appellant’s contention:

“It is true that it was but a single purchase, but this does not prevent it from constituting an open account. The account in Question shows a sale of the goods by appellee to appellant, stating the price charged 'therefor, and in every particular conforms to what is regarded by the authorities as an open account; and was therefore, when properly verified, as in the instant case, prima facie evidence upon which ap-pellee is entitled to judgment, -in the absence of proof impeaching its validity or showing its incorrectness.” Rockdale Mercantile Co. v. Brown Shoe Co., 184 S. W. 281; Davidson v. McCall Co., 95 S. W. 32.

The second assignment assails the correctness of the judgment, with the proposition that the form of the affidavit does not conform to the statutory requirement, in that the word “just” preceding the words “and lawful offsets” in the statute (article 3712) is omitted from the affidavit. The contention is that “just” and “lawful” are not synonymous terms, and that the omission of the word “just” is fatal to the affidavit. This assignment does not complain of the order of the court overruling an obijection to the introduction of the affidavit in evidence over timely objection; hence this assignment does not present for our consideration the sufficiency of the affidavit. “The sufficiency of the verification of the account affects merely the admissibility of the account in evidence, and its sufficiency is to be questioned by an objection to its admission in evidence.” 1 Corpus Juris, 667, § 197, note 86, citing Elyton Land Co. v. Morgan, 88 Ala. 434, 7 South. 249; Loche v. Farley, 41 Mich. 405, 1 N. W. 955.

If tlie form of the affidavit rendered it inadmissible in evidence, appellant could have objected to the ruling of the court admitting it, and brought the question for review by a proper bill of exceptions; but no error is assigned on the ruling of the court which admitted the affidavit in evidence. The second assignment is overruled.

The third assignment complains that the judgment is error, because appellant filed a sworn denial of the justness and truth of the account alleged, which action, under the statute, destroyed the effect of appellee’s sworn account as prima; facie evidence, and required appellee to prove allegations. The affidavit of appellant does conform- to the requirement of the statute (article 3712). Appellant’s affidavit is:

“C. T. Peterson, the defendant in the above cause, having read the foregoing answer, makes oath to the correctness of the allegations denying the justness of the account sued on herein.
“C. T. Peterson.
“Sworn to and subscribed before me this the 30th day of December, A. D. 1916.
“[Seal.] T. J. Newton,
“Notarv Public in and for Bexar County, Texas.”

From this affidavit it seems that appellant “makes oath” to the correctness of something. What is it that appellant swears is correct? The answer is: “The allegations denying the justness of the account sued on.” What are those allegations denying the justness of the account? There are three separate paragraphs in the answer containing allegations denying the justness of the alleged account. The first paragraph is a general denial of all the allegations in appel-lee’s petition. The second paragraph specially denies each and every item of the account sued on, and says the same is. not just, true, due, or owing. The third paragraph is:

“Defendant neither admits nor denies purchasing the merchandise alleged in paragraphs 2 and 3 of plaintiff’s petition, but denies owing plaintiff anything on account thereof by reason of the facts hereinafter stated.”

The facts thereafter stated in the answer constitute appellant’s cross-action for damages for delay in shipment and failure to deliver other goods. It thus appears that appellant’s affidavit is not definite and specific, for it is uncertain which “allegations denying the justness of the account” are meant. Neither the allegations of the general denial nor of the special denial could be the allegations referred to in the affidavit, because they are admitted to be untrue in the third paragraph of the answer, wherein it is alleged that appellant does not deny that he purchased the goods itemized in appellee’s account, but explains that he ought not to pay for them because of his offset. We must therefore conclude that the only allegations denying the justness of appellee’s account are the allegations! in the third paragraph. The allegations in this third paragraph admit the correctness of the account, but allege the account unjust .because of an offset for damages alleged by appellant.

Appellant’s answer was not sufficient to deprive appellee of the statutory right to have his verified account taken as prima facie evidence. Blackwell Durham Tobacco Co. v. Jacobs, 57 Tex. Civ. App. 295, 122 S. W. 66. The third assignment is overruled.

The judgment is affirmed
      d&wkey;For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DUNKLIN, J. DUNKLIN, J. DUNKLIN, J.

text:
    SKELTON & WEAR v. WOLFE et ux.
    (No. 8725.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Nov. 10, 1917.
    On Motion for Rehearing, Dec. 15, 1917.
    On Second Motion for Rehearing, Feb. 2, 1918.)
    1. Removal or Causes &wkey;>74 — Amount in CONTROVERSY — AMOUNT CLAIMED.
    Where plaintiff, after filing petition claiming $10,000 damages, filed an amended petition reducing the claim to $3,000, nonresident defendants’ application for removal to federal court was properly denied, although property attached for purpose of levying under original petition was appraised at $10,000 by the officer making the levy, the appraised value not determining the jurisdiction, although the property had not been released from levy.
    2. Removal op Causes <&wkey;75 — Amount in Controversy — Amendment of Petition-Notice.
    In such case, where notice of amendment was given within five days as required by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1824, the amended petition became effective against defendant’s right of removal, although petition for removal was filed before notice of amendment was served.
    3. Master and Servant <@=^278(11) — Defective Appliances — Sufficiency of Evidence.
    Evidence held insufficient to sustain allegation that “gun” used by intestate, killed by breaking of electric wire in defendant’s glass factory, was in an unsafe condition.
    4. Appeal and Error <&wkey;1062(l) — Submission of Issues — Reversible Error.
    Where the only alleged defects in the gun used by a servant were that it contained no guard to prevent the wire used in cutting glass from flying back and striking him in the event the wire should break while the current was on, and that the dial on the gun was out of order and did not show whether the current was off or on, submitting issue of defective gun was reversible error; there being no proof that gun could have been provided with such guard or that failure of dial to register caused or contributed to the injury.
    5. Master and Servant &wkey;>356 — Assumed Risk — Available under Statute.
    Where defendants did not contend that they were subscribers to the Employers’ Insurance Association, under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5246h, or had been precluded from becoming such by article 5246hh, the court properly denied to them the defense of assumed risk.
    6. Master and Servant <&wkey;101, 102(8) — Degree of Oare — How Determined.
    That defendant employers were operating their glass factory in the same manner and using and furnishing the samé character of machinery and appliances as other well-regulated concerns would not relieve them from liability if they failed to exercise ordinary care. ■
    On Motion for Rehearing.
    7. Appeal and Error &wkey;>729 — Assignment of Error — Sufficiency.
    Defendants’ assignment that the court erred in submitting the issue as to defect in gun used by intestate in defendants’ glass factory, because there was no testimony to show that the gun was defective, although general, was sufficient to present question that judgment should be reversed because of submission of such issue.
    8. Master and Servant <@=^108 — Defective Appliances.
    If the absence of the dial did not contribute to the injury, it cannot be said that it rendered the gun unsafe for the particular use made of •it by the servant.
    On Second Motion for Rehearing.
    9. Appeal and Error <&wkey;882(14) — Invited Error — Instructions.
    After defendants had specifically excepted to the portion of the charge submitting, as a distinct and separate basis for recovery, the defective condition of the gun used by the servant, they did not waive their objection by requesting an instruction that, if defendants exercised ordinary care to furnish a reasonably safe place in which to work and reasonably safe appliances, the verdict should be for defendants.
    Appeal from District Court, Wichita County; E. W. Nicholson, Judge.
    Action by J. C. Wolfe and wife against Skelton & Wear, a partnership firm, composed of L. E. Skelton and E. E. Wear. Judgment for plaintiffs, and defendants appeal.
    Reversed and remanded.
    Martin, Bullington, Boone & Humphrey, of Wichita Ealls, for appellants. Weeks '& Weeks, of Wichita Falls; for appellees.
   DUNKLIN, J.

L. E. Skelton and E. E. Wear, composing the partnership firm of Skelton & Wear, were engaged in operating a window glass factory in the town of Wichita Ealls, Tex. Chas. D. Wolfe, one of their employes in the factory, was killed by coming in contact with an electric wire. This suit was instituted against Skelton & Wear by J. C. Wolfe and wife, the parents of Chas. D. Wolfe, to recover damages occasioned by the loss of his services, it being alleged that the death of Chas. D. Wolfe was caused by defendants’ negligence, and from a judgment in favor of plaintiffs, the defendants have appealed.

Plaintiffs1 alleged ’ that they resided in Wichita county, Tex.; that defendant Skel-ton resided in Okmulgee, Okl., and defendant Wear resided in Kansas City, Mo. In their original petition plaintiffs claimed damages in the sum of $10,000. At the time that petition was filed plaintiff also filed an affidavit in which it was stated that neither of the defendants resided in this state. By reason of that fact the issuance of a writ of attachment was prayed for, for the purpose of levying upon property in Wichita county belonging to the defendants. At the same time a statutory bond was filed as a further basis for the issuance of the writ. A writ of attachment was then issued and levied upon certain personal property located in one of defendants’ warehouses, which constituted a part of their manufacturing plant in Wichita county, which was appraised by the officer making the levy at the aggregate sum of $10,000, as shown by bis return upon the writ. The original petition was filed July 16, 1916, and the writ of attachment was levied August 2, 1916.' On August 2S, 1916, plaintiffs filed an amended petition 'in which their demand for damages was reduced from $10,000, as claimed in the original petition, to the sum of $3,000. On Au-gust 29, 1916, the day following such reduction of plaintiffs’ demand, defendants filed a petition for removal of the case to the federal court, alleging that the cause of action was between citizens of different states, and that the amount in controversy exceeded the sum of $3,000. At the time of filing said petition for removal the defendants also filed a statutory bond for such removal, and served written notice on plaintiffs that they would present the petition for hearing on the 5th day of September following. On the day so appointed the petition was heard by the judge of the court in which the suit had been filed, and was by him overruled, to which action the defendants duly excepted.

The first assignment is addressed to the action of the court in overruling the petition for removal. None of the property levied on by virtue of the writ of attachment was released from that levy, but was held thereunder until final judgment was rendered, at which time the lien claimed by the attachment was foreclosed, and the property ordered to be sold, and the proceeds applied to the payment of the judgment, which was in plaintiffs’ favor for the sum of $3,000. Appellants insist that, as the property impounded under and by virtue of the levy of the writ of attachment was appraised by the officer making the levy at the sum of $10,000, the value of the property so fixed was the true measure of the amount in controversy in the suit, rather than the sum of $3,000, the amount claimed in the amended petition, and that therefore the cause should have been, removed to the federal court. In support of the contention appellants have cited the case of Hoover & Allen v. Paper Company (C. C.) 68 Fed. 945. That was a suit instituted in a state court against a nonresident, .whose property in the state was attached for jurisdictional purposes. The amount of the demand was less than $2,000, while the value of the property attached was in excess of $2,000. The receiver of the defendant company claimed the right of possession of the property as against the officer holding the same under and by virtue of his levy of the writ of attachment, and his petition for a removal of his suit for such possession was granted by the state court, and a motion in the federal court to remand was overruled; the court holding that the value of the property claimed by the receiver was the amount in controversy as between him and the parties to the suit, and that that branch of the suit was properly removed. In the opinion the case of Lehigh Zinc & Iron Co. v. N. J. Zinc & Iron Co. (C. C.) 43 Fed. 545, was cited as supporting the decision, and with reference to that decision the court said:

“In that case a bill was filed to quiet title, and it was held that, for the purpose of determining the jurisdictional amount, the whole value, of the property, the possession and enjoyment of which was threatened by the defendant, was the measure of the value of the matters in controversy.”

The case of Farmer’s Bank of Alexandria v. John Hooff, 7 Pet. 168, 8 L. Ed. 646, was a suit to foreclose a mortgage lien on certain real estate which had been given to secure a debt for less than $1,000. Chief Justice Marshall, after reciting the fact that the appeal was from an order dismissing the suit for want of jurisdiction in that the amouht in controversy was the amount of the debt sued for which was less than $1,000, used the following language:

“The appellant alleges in support of the jurisdiction of the court -that the real question is whether the debtor be entitled to the lot, and as that is worth more than $1,000, this court may take jurisdiction, though'the sum claimed in the bill is less.
“The court is of a different opinion. The real matter in controversy is the debt claimed in the bill; and though the title of the lot may be inquired into incidentally, it does not constitute the object of the suit.”

To the same effect are the following authorities:' Squire v. Robertson (C. C.) 191 Fed. 733; Bucyrus Co. v. McArthur (D. C.) 219 Fed. 266; Foster’s Federal Practice, vol. 2, par. 10.

We do not think that the authorities relied upon by appellants are in conflict .with the authorities last cited, which we believe are decisive of the question now under discussion in favor of the appellees. While the latter cases seem to have been suits to foreclose contract liens, we are unable to perceive any reason upon principle why they should not apply in a case like the present, in which the prayer to subject the property attached to the payment of any judgment that plaintiff's might recover is merely an incident to the cause of action asserted by plaintiff's.

In Cotulla v. Goggan, 77 Tex. 32, 13 S. W. 742, and other authorities cited in Stricklin v. Arrington & Carter, 141 S. W. 189, it was held that in suits to enforce liens upon personal property the value of the property detérmines the jurisdiction of the court. However, in those decisions no federal question was involved, and even though it should be said that they- are at variance with the rule announced in the federal decisions cited above, the latter would be controlling in the present instance, since the question involved is one pertaining to federal procedure.

Plaintiffs’ second amended petition was filed in vacation, and notice of such filing was given to the defendants three days thereafter, .which was August 31st. By article 1824, V. S. Texas Civil Statutes, any party to a suit is given the right to file amended pleadings in vacation provided notice thereof is given to the opposing parties within five days after such amendment is filed. Appellants insist, in effect, that the filing of the amended petition did not become effective as against their right of removal of the cause until the notice of the filing was served upon them, and as the petition and bond for removal were filed prior to the giving of such notice, the amount in controversy was the amount claimed in the original petition, notwithstanding the amended petition had been filed one day prior to the filing of the petition and bond for removal. We overrule this contention. The filing of the amended petition was certainly effective as an abandonment of plaintiffs’ original claim for $10,000 damages, and after it was filed the original petition was no longer a pleading in the case. And at the time the petition and bond for removal was filed it could not be said that plaintiff was claiming damages in excess of $3,000. Notice of such filing was given in compliance with the statutes. Even the failure to give the notice within such period would not have reinstated the original petition. The exact question was determined adversely to appellants’ contention in W. U. Tel. Co. v. Campbell, 41 Tex. Civ. App. 204, 91 S. W. 312, and we think the reasoning advanced in that decision is sound.

From a switch immediately above the floor upon which Chas. Wolfe was working at the time of his death a wire called the “lead wire” and carrying a current of 110 volts of electricity, connected with an appliance called the “gun.” The glass is first blown in rolls of cylindrical shape. Those rolls are then placed on a support called a “horse,” one at a time, and cut in pieces by means of the electric current coming from the lead wire through the gun to another wire wrapped around the roll, both ends of that .wire being attached to the gun, one end being first attached, and the other attached after the wire has been wound around the roll. The lead wire is attached to one side of the gun while both ends of the other wire are attached to the other side. The gun consists of two small pieces of wood fastened together. There is a button on the gun by means of which the current of electricity from the lead wire is turned into, or cut off from, the other wire by connecting or disconnecting the two wires. There is also a dial on the gun with the printed .words “On” and “Off,” to indicate whether or not the current is passing between the two wires. The person who cuts the rolls of glass is called the “capper,” and in doing so he first wraps the cutting wire around the roll, one end of which is already attached to the gun, and after the other end is also attached to the gun the current of electricity is turned from the lead wire into the cutting wire by so turning the button as to connect the two wires .which theretofore have not been connected. The wires are thus manipulated by the capper while he holds the gun in his left hand and operates the button with his right hand. ‘ When the current is turned on the encircling wire is extremely hot, and by reason of the intense heat the wire cuts through tKe roll of glass, but there is a small portion of the circle which is not touched by the wire. That is cut when the capper places a wet chisel against it. The capper has a helper who is called the “snapper.” The snapper places the rolls of glass on the horse, and stands behind and near the capper while the cutting is being done, after .which he removes the pieces of glass that have been cut. On the lead wire and about two feet from it is an appliance within easy reach of the snapper called the “socket,” by means of which the current can be cut off from the gun, and the snapper can do that by a simple jerk of the wire.

On the day Chas. Wolfe was killed he was engaged as a capper. After cutting a roll of glass with the wire in the manner described above, he placed his chisel against the portion of the roll not touched by the wire, in order to cut that, too, when the cutting wire broke, and a portion of it still charged with electricity flew back and wrapped around his body. When he received the shock he sank slowly to the floor, calling for help at the time. Wallace, who was serving as his snapper, did not disconnect the current so as to release him, but other em-ployés hurried to his side and severed the connection, but too late to save his life.

The plaintiffs’ petition contains nine separate and distinct specifications of negligence, each of which was alleged as the proximate cause of the death of Ohas. D. Wolfe. The trial was before a jury, who returned a verdict in response to the general charge of the court, in which only four of the speeifica.-tions of negligence were submitted. Those issues were: (1) The failure of the defendants to' provide a rubber mat for the deceased to stand thereon while engaged in his work, such mat to serve to insulate him from the wooden floor of defendants’ factory where he stood at the time he received the fatal shock; (2) charging the wires with which deceased was working at the time of his death with a current of electricity of 110 voltage, when a current of only 55 volts was all that was reasonably necessary to do the same work; (3) furnishing an incompetent assistant called a “snapper,” one of the duties of whose employment was to cut off the current immediately in case the capper should come in contact therewith; and (4) furnishing a defective gun with which to work. And the jury wlas told that if any one of those allegations of negligence was sustained by proof, and if such negligence was the proximate cause of the accident, a verdict should be returned in plaintiffs’ favor. Appellants complain of the refusal of their request for a peremptory instruction based upon their contention that none of the charges of negligence submitted in the court’s instruction was sustained by proof sufficient to warrant a verdict in plaintiffs’ favof thereon.

We are unable to agree with that contention. We are of the opinion that the evidence was sufficient to sustain a finding in plaintiffs’ favor upon the three issues of negligence first mentioned; but we shall not undertake to set out the evidence as the same would serve no useful purpose.

But we are of the opinion that the evidence was insufficient to sustain a finding in plaintiffs’ favor upon the issue of negligence based upon allegations that the gun with which Wolfe was working at the time of his death was in a defective and unsafe condition. One of the defects in the gun alleged in the plaintiffs’ petition was that it contained no guard or appliance to prevent the wire used in cutting the glass from flying back and striking the capper in the event it should break while the current was on. The only other defect alleged in the gun was that the dial on the gun was out of order, and by reason of that condition would not show whether the current was on or off the cutting wire.

If these were defects, they were conclusively established by the evidence. But there was no proof to show that the gun could have been provided with such a guard, as alleged, without impairing the usefulness of the gun, nor was there any proof to show that the failure of the dial to so register in any manner caused or contributed to the injury received by Ohas. D. Wolfe, and for that reason it was error to submit the alleged negligence in furnishing a gun in a defective condition as a basis for a recovery. Por that error the judgment must be reversed. The only evidence cited in appel-lees’ brief to sustain that allegation of negligence consists of testimony to the effect that a portion of the lead wire a few inches from the point where it was fastened to the gun was without proper insulation, and other testimony tending to show that that uninsulated portion of the wire came in contact with the body of Ohas. Wolfe at the time he received the fatal shock. But such proof itself showed that that portion of the wire was in no sense a part of the gun; in fact, in plaintiffs’ petition following allegations of a defective condition of the gun, in that it was not provided with a guard, and that the dial thereon was out of order, is the separate and distinct specification of negligence in furnishing for deceased’s use the lead wire in an uninsulated condition.

By different assignments of error complaint is made of the action of the trial court in denying to defendants the right to avail themselves of their plea of assumed risk; such plea being, in effect, that the dangers from which Chas. Wolfe came to his death were risks ordinarily incident to the duties of his employment, which were known to him at the time he undertook to perform the services in which he Was engaged which resulted in his death, and that by reason thereof he assumed the risk of such an injury which would prevent a recovery by plaintiffs.

These assignments are all overruled, since by article 5246h, V. S. Texas Civil Statutes, it is provided that an employer who is not a subscriber to the Texas Employers’ Insurance Association and is not precluded from becoming such by article 5246hh is denied the right to urge the defense of assumed risk in actions of this character, ánd since appellants do not contend that they were such subscribers, nor that they were precluded from becoming such by the terms of the latter article. Memphis Cotton Oil Co. v. Tolbert, 171 S. W. 309; Middleton v. Texas Power & Light Co. (Sup.) 185 S. W. 556.

Another contention presented by several assignments in different forms was substantially to the effect that, if the proof showed that the defendants were operating their glass factory in the same manner and using and furnishing the same character of machinery, appliances, equipment, and the same character of place in which to work as were actually employed by other prudent, well-regulated concerns operating and engaged in the same character of business, then they were not guilty of actionable negligence, and that the court erred in failing to so charge the jury.

We think this contention is unsound. Appellants have cited H. & T. C. Ry. Co. v. Alexander, 103 Tex. 594, 132 S. W. 119, and Taylor v. White, 156 S. W. 349. There are some expressions in those decisions to the effect that, if the master, who is charged with negligence, can show that the business in question was conducted in the same manner as that pursued by other prudent, well-regulated concerns of the same character, he cannot be held liable to a servant for damages resulting therefrom. But we do not understand that they go to the extent of denying the general principle that negligence consists of the failure to exercise ordinary care, and that ordinary care is the failure to do that which a person of ordinary prudence would have done, or the doing of that which a person of ordinary prudence would not have done under the same or similar circumstances ; in other words, the test at last is how a person of ordinary prudence would have acted under the same or similar circumstances. We do not construe those decisions as holding otherwise than that there was no evidence adduced in those cases from which negligence could be reasonably inferred. In G., G. & S. F. Ry. Co. v. Evansich, 61 Tex. 3, our Supreme Court used the following language:

“While it is true that an established custom may be looked to, in many cases, for the purpose of determining what parties really intended by a given contract, and what acts in the performance of it will satisfy it, it may well be questioned whether in any case in which, in the absence of contract, express or implied, negligence as an element is the foundation of a. right, custom may be set up for the purpose of showing that negligence does or does not exist. In such cases it would seem that the question whether negligence exists must be determined by the facts in the very case in which the question arises” — citing numerous authorities.

In G., C. & S. F. Ry. Co. v. Smith, 87 Tex. 348, 28 S. W. 520, the question of whether or not the railway company’s servants were' guilty of negligence in making a flying switch was an issue. The trial court charged the jury that that method of making a switch would he negligence if it was unsafe and dangerous, and was not such a method as is permitted by railway companies exercising care and prudence in the conduct and management of their trains. Is discussing that charge our Supreme Court used the following language:

“The effect of the foregoing charge is to inform the jury that, if ‘other railroad companies exercising care and prudence in the conduct and management of their trains’ prohibit flying switches, then it would be negligence for the defendant’s employés to make them. There is no statute nor positive rule of law which forbids the making of ‘flying’ or ‘running’ switches, and it cannot be declared by the court to be negligence; nor can the question of negligence be made to dejfeid upon what other railroad companies forbid or permit to be done. Whether or not the making of the flying switch was negligence was a question of fact to be determined by the jury under all the circumstances of the case.”

To the same effect are the following authorities: I. & G. N. Ry. Co. v. Hawes, 54 S. W. 325 (writ of error denied); Kirby Lumber Co. v. Dickerson, 42 Tex. Civ. App. 504, 94 S. W. 153; 3 Labatt’s Master & Servant, § 947.

For the error indicated the judgment is reversed, and the cause remanded.

CONNER, C. J., not sitting, serving on writ of error committee at Austin.

On Motion for Rehearing.

DUNKLIN, J.

Appellees insist that the assignment of error to that portion of the charge of the court which submitted the issue of the defective gun as a basis for recovery did not present the contention that there was no showing that such defects were the proximate cause of the injury, as was held by the court upon original hearing.

By the court’s instruction the jury were told, in effect, that if they found from the evidence that the gun was unsafe and unsuitable for the purposes for which it was being used by Chas. D. Wolfe at the time of his injury, and that defendants were guilty of negligence in furnishing to him the gun in that condition, and that if they should further find that such negligence was the direct and proximate cause of his injury, then a verdict should be returned in plaintiffs’ favor.

In the bill of exception taken by appellants upon the tria} to that instruction two reasons were assigned, one being that the uncontradicted testimony showed the gun to be in a safe and suitable condition for all purposes, and was such as is used by all manufacturers engaged in the same business, and the other reason was that there was no testimony to show that the gun was unsafe or unsuitable.

The first stated ground of objection to the instruction as was not tenable. While the second ground of objection was perhaps inaptly expressed, since it did not specifically state that there was an absence of proof that the defective condition of the dial on the gun rendered it unsafe for the use Wolfe was making of it at the time of his injury, or that the gun was unsuitable for . such use by reason of the absence of a guard, yet we think that such was evidently its meaning, and that it was sufficient to sustain our conclusion that the judgment should be reversed because said charge was given. As said in our original opinion, it was proven beyond controversy that the dial on the gun was not in a workable condition, but there was no evidence to show that that condition in any manner contributed to the injury. If it did not contribute to the injury, then it cannot be said that the absence of the dial rendered the gun unsafe or unsuitable for the particular use being made of it at the time of Wolfe’s injury, which was the gist of plaintiffs’ complaint, since there was no proof that he was using the gun or attempting to use it at all at that time.

Appellees insist further that the judgment should not be reversed by reason of that instruction of the court, since, as is claimed by them, there was evidence tending to show that the lead wire attached to the gun was in a defective condition, which condition contributed to the injury, and that said lead wire was understood by the witnesses and by the court, jury, and counsel engaged in the trial to be a part of the gun itself. We do not think that that contention is borne out by the record cited by appellees to support it. As noted in our original opinion, the defective condition of the lead wire was alleged as a separate and distinct basis of recovery, and the testimony relating thereto fails to show that it could be properly considered as any part of the gun. Accordingly appellees’ motion for rehearing is overruled.

Appellants also insist that we were in error in our conclusions that the evidence was sufficient to warrant a submission of the other three issues of negligence mentioned in the original opinion. After further consideration we are convinced that our conclusions as originally expressed upon thosé issues-were correct. We think no useful purpose can be subserved by reviewing the evidence-upon these issues, and, without further discussion, appellants’ motion tor rehearing is also overruled.

CONNER, C. J., not sitting, serving on writ of error committee at Austin.

On Second Motion for Rehearing.

DUNKLIN, J.

One of the propositions urged in appellees’ motion for rehearing was that, if the court erred in submitting the alleged negligent condition of the gun as a basis for recovery, such error was invited by appellants. The requested instruction of appellants was in general terms and to the effect that, if the defendants exercised ordinary care to furnish Charles Wolfe a reasonably safe place to wort and reasonably safe machinery and appliances with which fo worlc, then the verdict should be returned in favor of the defendants.

The requested instruction did not contain any statement that it was presented subject to the exceptions taken to that portion of the charge of the court submitting the alleged negligent condition of the gun as a basis for recovery.

This court fully recognizes the rule that, if an error is invited, no successful complaint can be made of it on appeal, and has often enforced that rule; but we think it would be an unreasonable application of the rule to say that after appellants had specifically excepted to that portion of the charge submitting the alleged negligent condition of the gun as a distinct and separate basis of recovery they waived their objections by the requested instruction above mentioned. As noted, that instruction was in general terms and with no special reference to any of the several grounds of negligence submitted by the court to the jury, and the substance of it was given by the trial court, and properly so in view of the other grounds of negligence submitted.

■ Appellants’ contention now under discussion was not overlooked in our consideration of the original motion for rehearing, but it was not discussed and this additional conclusion is filed at the earnest instance of the appellees in their second motion for rehearing, which is overruled; appellees having been granted leave to file said motion.

Motion overruled.

CONNER, C. J., not sitting, serving on writ of error committee at Austin.
      other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: TALBOT, J.

text:
    COTTONNIERE v. WHITE, JACKSON & CO.
    (No. 7893.)
    (Court of Civil Appeals of Texas. Dallas.
    Feb. 2, 1918.)
    1. Exceptions, Bill oe <&wkey;39(l) — Filing— CONSIDERATION.
    A bill of exceptions filed nearly a year after rendition of a judgment in the district court cannot be considered; no order extending the time appearing to have been granted within the 30-day period allowed for the filing of a bill of exceptions.
    2. Appeal and Error <&wkey;520(4) — Review-Matters Presented.
    The refusal of an application for a continuance cannot be reviewed by an appellate court unless exceptions are duly reserved and presented in a bill of exceptions filed within time.
    Error from District Court, Hill County; Horton B. Porter, Judge.
    Action by Campagnie Cottonniere against White, Jackson & Co. There was a judgment for defendants, and plaintiff brings error.
    Affirmed.
    Morrow & Morrow and R. M. Vaughan, all of Hillsboro, for plaintiff in error. J. J. Averitte and Wear & Frazier, all of Hills-boro, for defendants in error.
   TALBOT, J.

The plaintiff in error, Cam-pagnie Cottonniere, a French corporation, brought this suit against the. defendants in error, G. L. White, W. E. Jackson, and W. C. Robertson, doing business under the firm name of White, Robertson & Co., to recover the sum of $2,074.44, alleged to be due on account of shortage in grades of cotton sold by the defendants in error as indicated by the grade of the cotton upon its receipt in Europe, and also for alleged shortage of the weight of the cotton. The original petition appears to have been filed July 8, 1913. In lieu of this petition an amended petition was filed the 28th day of November, 1913. The defendants in error filed answer September 1, 1913. At the January term of the court, 1916, and on February 15, 1916, upon an instructed verdict judgment was rendered in favor of the defendants in error. Motion for new trial was overruled February 18, 1916. Petition for writ of error and writ of error bond were filed on the 9th day of February, 1917, and transcript filed in this court March 31, 1917.

The single assignment of error presented is as follows:

“Because the court erred in overruling plaintiff’s motion for a continuance as shown by plaintiff’s bill of exception No. 1.”

This bill of exception appears to have been filed in the district court February 9, 1917, nearly one year after the judgment from which the writ of error is prosecuted was rendered. The statute allows only 30 days after the day of the adjournment of the court at which the judgment appealed from is taken in which to file bills of exception unlesg an extension for such filing is granted by an order of the court. No extension of time for the filing of bills of exception appears tó have been granted, and no reason whatever is shown why the one in question was not sooner filed. The bill cannot therefore be considered in this court and the action of the district court in overruling what purports to be an application of tbe plaintiff in error for a continuance be reviewed.

That tbe refusal of an application for a continuance by tbe trial court can be revised on appeal in this state only when ex-' ception is reserved to sucb refusal and presented in a bill of exceptions is too well settled to require tbe citation of authorities; but of tbe many cases to that effect see the following: Morris v. Files, 40 Tex. 375; Philipowski v. Spencer, 63 Tex. 604; Railway Company v. Mallon, 65 Tex. 115.

Tbe judgment is affirmed.
      (SnwEor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BOYCE, J.

text:
    VAN NATTA v. VAN NATTA.
    (No. 1276.)
    (Court of Civil Appeals of Texas. Amarillo.
    Jan. 16, 1918.
    Rehearing Denied Feb. 20, 1918.)
    1. Judgment <&wkey;823 — Full Faith and Credit Clause — Effect.
    Under Const. U. S. art. 4, § 1, and Rev. St. U. S. § 905 (U. S. Comp. St. 1916, § 1519), as to full faith and credit of judicial proceedings in a sister state, in action on a sister state judgment, the defense being a pending appeal from the judgment, the court of the forum will give the judgment the effect it would be given by the courts of the state where rendered, and the effect of the appeal on the finality of the judgment, and its admissibility in evidence in support of the rights adjudicated thereby is to bo determined by the laws of that state.
    2. Evidence i&wkey;35 — Judicial Notice — Laws of Another State.
    In action on a sister state judgment, the defense being a pending appeal from the judgment, the court cannot take judicial knowledge o'f the laws of that state as to the effect of appeal on the judgment and the right to sue thereon.
    3. Abatement and Revival &wkey;>16 — Action Pending — Effect of Pending Appeal.
    Where action is brought in Texas on a judgment rendered in Indiana, from which an appeal is pending, and the right to sue thereon in Indiana is not shown, the action is governed in that respect by the laws of Texas.
    4. Judgment <&wkey;903 — Action — Effect of Pending Appeal.
    Suit cannot be maintained on a judgment on which appeal is pending, whether on cost or supersedeas bond; since such judgment is inadmissible in evidence.
    Appeal from District Court, Potter County; Hugh L. Umphres, Judge.
    Action by Helen S. Van Natta against Samuel G. Van Natta.- From judgment for defendant, plaintiff appeals.
    Affirmed.
    Veale & Lumpkin, of Amarillo, for appellant. Madden, Trulove, Ryburn & Pipkin and T. H. Cody, all of Amarillo, for appellee.
   BOYCE, J.

This suit was brought by appellant, Helen S. Van Natta, against appel-lee, Samuel G. Van Natta, on a judgment for a large sum of money rendered by tbe circuit court of Clinton county, in tbe state of Indiana, in favor of appellant and against ap-pellee. Appellee pleaded that an appeal bad been taken from said judgment and was pending and undisposed of in the Appellate Court of said state. It is conceded that appellant would be entitled to recover on tbe judgment if tbe pending appeal does not preclude sucb recovery, and this is tbe only question presented for our decision on tbe present appeal; tbe court below having denied recovery on tbe judgment. On tbe trial ,of tbe case tbe parties made tbe following agreement as to the facts of tbe appeal:

“The judgment referred to in plaintiff’s petition as having been rendered in the Clinton circuit court, in the state of Indiana, has been by defendant duly appealed from upon a cost bond for appeal, in accordance with the laws of said state, and that said cause is now pending on the docket of the Supreme Court within and for the state of Indiana, subject to call in due order of procedure in said court and is yet undisposed of. Such appeal was had and is pending and undisposed of on the cost bond for appeal and not upon supersedeas bond.”

Tbe provisions of article 4, § 1, of tbe federal Constitution, and of section 905, Revised Statutes of tbe United States (U. S. Comp. St. 1916, § 1519), in relation to the same subject, which require that “full faith and credit shall be given in each state, to the * * * judicial proceedings of every other state,” and that sucb “judicial proceedings * * * shall have sucb faith and credit given to them in every court within the United States as they have by law or usage in tbe courts of tbe state from which they are taken,” are familiar to all. It was announced by tbe Supreme Court of tbe United States at an early date, and subsequently followed with certain restrictions on the broad announcement which do not concern us at this time:

“That the judgment of a state court should have the same credit, validity, and effect, in every other court of the United States, which it had in the court where it was .pronounced; and that whatever pleas would be good to a suit thereon in such state, and none others, could be pleaded in any other court in the United States.” Hampton v. McConnel, 3 Wheat. 234, 4 L. Ed. 378; McElmoyle v. Cohen, 13 Pet. 312, 10 L. Ed. 184; Mills v. Duryee, 7 Cranch, 484, 3 L. Ed. 413; Embry v. Palmer, 107 U. S. 3, 2 Sup. Ct. 25, 27 L. Ed. 346; Renaud v. Abbott, 116 U. S. 277, 6 Sup. Ct. 1194, 29 L. Ed. 629; Cook v. Thornhill, 13 Tex. 293, 65 Am. Doc. 63; Express Co. v. North Ft. Worth Undertaking Co., 179 S. W. 908; R. C. L. vol. 15, p. 927, § 407.

We think therefore that we should give to this Indiana judgment tbe effect it would be given by the courts of that state, and that tbe effect of tbe appeal on tbe finality of tbe judgment and its admissibility in evidence in support of the rights adjudicated thereby is to be determined by the laws of tbe state of Indiana. But, as no pleading or proof was offered as to tbe law of Indiana on this subject, we must first dispose of the preliminary question as to bow we are to determine sucb matters; that is, whether we are to take judicial knowledge of sucb law, or whether, in the absence of sucb proof, we are to follow tbe general rule that it is to be presumed that tbe law of Indiana on the subject is the same as our own, and, then proceed to determine the effect of the appeal as determined by our own decisions.

There are a number of authorities, approved to a certain extent by citation thereto by our own courts, that hold that, in suits on judgments in a state other than the state in which the judgment was rendered, the court of the forum will, in order to ascertain the effect of the judgment, take judicial knowledge of the law of the state in which the judgment was rendered. Henry v. Allen, 82 Tex. 35, 17 S. W. 516; Babcock v. Marshall, 21 Tex. Civ. App. 145, 50 S. W. 730; State v. Hinchman, 27 Pa. 483; Paine v. Schenectady Ins. Co., 11 R. I. 415; Trowbridge v. Spinning, 23 Wash. 48, 62 Pac. 125, 54 L. R. A. 204, 83 Am. St. Rep. 806; Rae v. Hulbert, 17 Ill. 576; Hull v. Webb, 78 Ill. App. 617; Black on Judgments, § 882. The ^Pennsylvania case cited, being the leading case supporting this view of the law and which is cited by the Supreme Court in the ease of Henry v. Allen, supra, states the reason for this rule thus:

“A judgment of this court, adverse to the right arising out of the federal Constitution and legislation, would be reviewable in the Supreme Court of the United States, and there the states of the Confederacy are not regarded as foreign states, whose laws and usages must bo proved, but as domestic institutions, whose laws are to be noticed without pleading or proof. It would be a very imperfect and discordant administration for a court of original jurisdiction to adopt one rule of decision, while the court of final resort was governed by another; and hence it follows that, in questions of this sort, we should take notice of the local laws of a sister state in the same manner the Supreme Court of the United States would do on a writ of error to our judgment.”

However, the United States Supreme Court, in the subsequent cases of Hanley v. Donoghue, 116 U. S. 1, 6 Sup. Ct. 242, 29 L. Ed. 535, and C. & A. Ry. Co. v. Wiggins Ferry Co., 119 U. S. 615, 7 Sup. Ct. 398, 30 L. Ed. 519, destroyed entirely the foundation on which these cases are based by this statement of the law in the opinion in the case of Hanley v. Donoghue:

‘‘In the exercise of its general appellate _ jurisdiction from the lower court of the United States, this court takes judicial notice of the laws of every state of the Union, because those laws are known to the court below as laws alone, needing no averment or proof. * * * But on a writ of error to the highest court of a state, in which the revisory power of this court is limited to determining whether a question of law depending upon the Constitution, laws, or treaties of the United .States has been erroneously decided by the state court upon the facts before it — while the law of that state, being known to its courts as law, is, of course, within the judicial knowledge of this court at the hearing on error — yet, as in the state court the laws of another state are but facts required to be proved in order to be considered, this court does not take judicial notice of them, unless made part of the record sent up.”

It was further pointed out in that case that thé decisions in Ohio v. Hinchman, supra, and Paine v. Schenectady Ins. Co., supra, are based upon a misapprehension of the decisions of the United States Supreme Court. These decisions of the United States Supreme Court, which we think settle this question definitely, seem to have been overlooked by the courts in some of the cases we have cited, which still adhere to the rule announced in the Pennsylvania case. Neither of the judges, in the opinion in the two Texas cases referred to, attempt to discuss the question at any length; the propositions being stated in an incidental way. The correct rule is, we think, stated by the court in an opinion by Judge Williams, in the case of Herndon v. Vick, 18 Tex. Civ. App. 585, 45 S. W. 853, as follows:

“Where it is necessary, in order to show a right asserted under a judgment which results from a law of the state where it is rendered, peculiar to that law, or different from the effect which such a judgment would have under the law of the state where it is sought to be used, if there rendered, the law of the former state must be alleged and proved as a fact; otherwise, the court called upon to determine the effect of the judgment must reach its conclusion from the law judicially known to it.”

The following additional authorities support this conclusion: Porcheler v. Bronson, 50 Tex. 561; I. B. Rosenthal Millinery Co. v. Lennox, 50 S. W. 401; Ogg v. Ogg, 165 S. W. 913; Tourtelot v. Booker, 160 S. W. 293.

We conclude that we cannot take judicial knowledge of the laws of Indiana as to the effect the appeal has on the judgment and the right to sue thereon, and it will be necessary for us to proceed to a consideration of such questions as determined by our own decisions.

The effect of an appeal on a judgment was thoroughly considered by the Supreme Court of this state in the case of Texas Trunk Ry. Co. v. Jackson, 85 Tex. 608, 22 S. W. 1032: The different theories of the law as to such matters were there considered, and the court, after announcing that it felt authorized to adopt the rule supported by the better reason and most likely to secure the ends of justice, made this statement of its conclusion:

“We are of opinion that appeal or writ of error, whether prosecuted under cost or super-sedeas bond, during pendency deprives a judgment of that finality of character necessary to entitle it to admission in evidence in support of the right or defense declared by it; and from this necessarily follows the insufficiency of a plea in bar based on it. That, under the statute, execution may be issued and the judgment be enforced during the appeal when only a cost bond has been given, does not affect the question ; for this is by virtue of the statute, which does not undertake to determine the status of the judgment in reference to any matter involved m the questions certified.”

It was hold in the ease of Cunningham v. Holt, 12 Tex. Civ. App. 150, 33 S. W. 982, that a judgment from which an appeal had been taken will not support a plea of res ad-judicata. If such a judgment cannot be pleaded in bar or as res adjudicaba, nor offered in evidence in support of a right or defense declared by it, it follows inevitably that suit cannot he maintained on such judgment, for necessarily it would have to he offered in support of the right declared by it and made the basis of the suit.

For these reasons,'we think the judgment of the court below should be affirmed.

HUFF, O. J., not sitting, being absent in Austin with committee of judges passing on applications for writs of error.
      <&wkey;>For other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes


text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. HUMPHRIES.
    (No. 1282.)
    (Court of Civil Appeals of Texas. Amarillo.
    Jan. 30, 1918.
    Rehearing Denied Feb. 20, 1918.)
    Appeal and Error &wkey;>1050(l) — Haemless Ebrok — Admission op Evidence.
    Admission of inadmissible evidence is not ground for reversal, where it does not appear probable that it had any effect on the result.
    Appeal from Hunt County Court; H. O. Norwood, Judge.
    Action by P. L. Humphries against the Missouri, Kansas & Texas Railway Company. From judgment for plaintiff, defendant appeals.
    Affirmed.
    C. C. Huff, of Dallas, Dinsmore, McMahan & Dinsmore and Paul 6. Thompson, all of Greenville, for appellant. Evans & Shields, of Greenville, for appellee.
   BOYCE, J.

The charge that the standing of the engine in front of plaintiff’s house and permitting it to emit volumes of black, sooty, and poisonous smoke, was negligence, involves as an element thereof the assumption that such acts were not such as were usual an'd necessary in the proper conduct and performance of appellant’s business. In any event, the subsequent pleading made a specific issue of this element of negligence, and no harm resulted from the overruling of the exception.

We think the evidence of Mrs. Pyland, referred to in the second assignment, was inadmissible. Nussbaum & Scharff v. T. & B. V. Ry. Co., 149 S. W. 1083; Id. (Sup.) 194 S. W. 1102, and authorities cited in those cases ; Gillett’s Indirect and Collateral Evidence, pars. 62, 67. But we do not think that It appears probable that the admission of this evidence had any effect on the result

The finding of the jury as to the amount of the damages has sufficient support. in the evidence to sustain it. The plaintiff and his wife testified positively that plaintiff’s subsequent ill health was the result of the inhalation of the smoke, and the doctors’ testimony is to the effect that such a result was probable.

Affirmed.

HUFF, C. J., not sitting, being absent in Austin with committee of judges passing on applications for writs of error.