author: HODGES, J.

text:
    LION BONDING & SURETY CO. v. FIRST STATE BANK OF PARIS et al.
    (No. 1774.)
    (Court of Civil Appeals of Texas. Texarkana.
    April 3, 1917.
    Rehearing Denied May 17, 1917.)
    1. Subrogation <@=>23(1) — Advances — Liability on Contractor’s Bond.
    A bank lending money to a street improvement contractor could not claim by subrogation the rights of materialmen against the contractor’s surety solely because the money loaned was used to pay such claims.
    [Ed. Note. — For’ other cases, see Subrogation, Cent. Dig. § 60.]
    2. Municipal Corporations <@=>347(2) — Street Improvements — Contractor’s Bond —Persons Secured.
    Under a street improvement contractor’s bond which provided that any laborer, material-man, etc., or any other person having any claim against the contractor growing out of the prosecution of the work, or any person injured or whose property was injured by the faulty construction of the work, or any person having a claim of any character whatsoever “by reason thereof,” should have thé right to sue thereon, a bank lending money to the contractor had no claim against the surety, though the contractor represented that the money would be used for labor and material, without, however, obligating itself to so use it, as it was neither a ma-terialman nor a party whose claim grew out of the prosecution of the work, while the words “by reason thereof,” as used in referring to the third class of claimants, referred to claims resulting from the faulty construction of the work or from its prosecution.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 877.]
    3. Municipal Corporations <@=>375 — Street Improvements — Actions—Judgment.
    In an action to which a city, a street improvement contractor, and its surety were parties, a judgment allowing the city to retain money due the contractor for five years'as a maintenance fund in lieu of a maintenance bond, which was not in such form as to permit any unused portion of the-fund to be recovered by the party entitled thereto at the end of the five-year period, should be modified so as to protect that right.
    Appeal from District Court, Lamar County; A. P. Dohoney, Judge.
    Action by the First State Bank of Paris against the Lion Bonding & Surety Company and others. From the judgment the defendant named appeals.
    Judgment reformed.
    Thomas, Milam & Touchstone, of Dallas, and Long & Wortham, of Paris, for appellant. Wright & Patrick, M. H. Baughn, Fred Dudley, an’d A. Park, all of Paris, Head, Dillard, Smith, Maxey & Head, of Sherman, and Coke & Coke, and Burgess, Burgess, Chrest-man & Brundidge, all of Dallas, for appellees.
   HODGES, J.

In February, 1914, R. D. Moxley & Co., a partnership composed of R. D. Moxley and T. J. O’Donnell, entered into a contract with the city of Paris by which they agreed to pave Pine Bluff street, in that city, with asphalt macadam, according to certain detailed plans and specifications. At the time this contract was signed Moxley & Co. also executed a bond in the sum of $22,-787, with the appellant, Lion Bonding & Surety Company, as its surety, by which the city of Paris was to be indemnified against any loss resulting from the failure of Moxley & Co. to perform their contract according to its terms. The bond also contained stipulations which bound the surety company for the payment of certain claims held by third parties who had furnished material or labor to Moxley & Co. in the prosecution of the work. In April, 1914, the contractors began the work of construction, and continued till October following, when the street was turned over to the city for use. During the progress of the work numerous debts were contracted by Moxley <& Co. for labor and material furnished, some of which were left unpaid when the work was terminated. Soon after executing their contract and bond Moxley & Co. applied for and received from the appellee the First State Bank a loan of $7,500, for which they executed their note. Moxley & Co. at the same time, and as security for the loan, executed to J. W. Hardison, cashier of the bank, a power of attorney authorizing him to collect from the city of Paris all of the sums of money then due or thereafter to become due to Moxley & Co. under the terms of their contract. This power of attorney was promptly filed with the city secretary. Some time later other loans were made to Moxley & Co. by the bank, a portion of which was repaid. This suit was instituted by the bank against Moxley <& Co. and appellant as its surety on the bond above mentioned to recover the sum of $9,793.31, which, it is alleged, is the balance due upon the indebtedness held by the bank. The city of Paris was afterwards made a party to the suit, upon the ground that it still had in its hands funds belonging to Moxley & Co. nr which the bank had an interest by assignment. Various other parties having small claims against Moxley & Co. for labor and material were also impleaded. The bank pleaded the contract of Moxley & Co. with the city to do the street paving, and the bond given to secure the performance of that contract, and especially those provisions by which Moxley & Co. and the surety company obligated themselves to pay all claims of any character against Moxley & Co. growing out of the prosecution of the work; it also pleaded the execution of the notes for the loans made to Moxley & Co., and the balance due upon those obligations. The city of Paris pleaded its contract with Moxley, and alleged that the contract had not been fully complied with, that the paving was defective, and that it would require $1,000 to complete the work according to the original contract. The city admitted that it still had in its hands $3,-093.25 due Moxley & Co. upon the final estimate, and the further sum of $3,430.87 held under the terms of its contract as a reserve' fund. The city also pleaded certain stipulations of the contract with Moxley & Oo. whereby it had the option of retaining 10 cents for each square yard of paving as a maintenance fun'd for a period of five years in lieu of a maintenance bond. It was further alleged that the pavement covered 14,100 square yards, and a judgment was ashed for the $1,000 damages, and that the city be permitted to retain $1,410 as a maintenance fund for the term of five years. The balance held by the bank was tendered into court to be disposed of as the court might deem proper. Judgment was rendered in favor of the bank against Moxley & Oo. and the appellant surety company for the full amount of its claim, and in favor of the city for $1,000 as damages, and for $1,410 as a maintenance fund. Judgments were also rendered against Moxley & Co. and the appellant for numerous small claims held by laborers' and ma-terialmen, about which there is now no controversy. The surety company alone has appealed, and assigns error to that part of the judgment against it in favor of the bank and that portion in favor of the city for $1,000 as damages and $1,410 awarded to it as a maintenance fund.

The first group of assigned errors are those which complain of judgment in favor of the bank against the appellant. It is contended that the court erred in refusing to sustain a general demurrer to the petition of the bank, and also erred in rendering judgment upon the ground that neither the pleadings nor the evidence disclosed any liability on the part of the surety company to the bank for the indebtedness claimed against Moxley & Co. It appears from the briefs of counsel that the bank, in undertaking to hold the surety company liable on its bond for the claim sued on, relies upon the following provisions of the bond:

“And it is expressly agreed that this bond is intended as an indemnity to the city of Paris against the claims of every person in any manner connected with said work and in any manner injured thereby, and that any laborers, ma-terialmen, mechanics, artisans, property owners or any other person having any claim against the principal growing out of the prosecution of this work, or any person who is injured or whose property is injured by the faulty construction of said work, or any person' having a claim of muy character whatsoever J>y reason thereof, which said principal shall fail or refuse to< pay, shall have the right, to sue far and recover therefor of the surety on this bond in any cowrt in Lamar county having jurisdiction of the amount,” etc.

The liability of the surety company for the indebtedness of Moxley & Co. for the money borrowed depends upon what construction should be placed upon those provisions of the contract above quoted. It is evident that the bond was given as a substantial compliance with the act of 1913, p. 185, which is found in chapter 3 of title 113, Vernon’s Sayles’ Revised Civil Statutes. The bond, however, is more comprehensive than the statute requires, and the bank undertakes to justify its suit upon the ground that its debt comes within those terms of the bond which exceed the statutory requirements, and which create a mere common-law liability.

'There was evidence sufficient to justify the conclusion that the first loan to Moxley & Co. was made at or about the time work on the street was commenced, and that the money obtained was used by Moxley & Co. in paying for the required labor and material. It was also shown that at the time this loan was applied for Moxley & Co. represented to the officers of the bank that the money they wished to borrow would be used for that purpose, and referred to the bond here sued on as security to which the bank might look for repayment. But there was no evidence that the surety company had any notice of those representations or of the dealings' between Moxley & Co. and the bank.

The greater portion of the enumerated conditions in the bond are those which are designed to indemnify the city of Paris against loss or damages resulting from a failure to perform the contract and from the claims of ■third parties. If the bank may demand payment from the surety company that right must be found in the extract quoted above. Excluding the city of Paris, the beneficiaries of the bond may be grouped as follows: First, any laborers, materialmen, mechanics, artisans, property owners or any other persons having any claim against the principal growing out of the prosecution of said work; second, any person who is injured, or whose property is injured, by reason of the faulty construction of said work; third, any person having a claim of any character whatsoever by reason thereof.

As a mere lender of money, the bank cannot claim to be a materialman; neither can it claim by subrogation the rights of materialmen solely upon the ground that the money loaned was used to pay those claims. Gaylord v. Loughridge, 50 Tex. 573; Int. B. & L. Asso. v. Fortassain, 23 S. W. 496; First Nat. Bank v. Campbell, 24 Tex. Civ. App. 160, 58 S. W. 628. Its debt is not a claim which resulted from the prosecution of the work, for most of the debt originated before the work was commenced, and rested upon conditions wholly independent of the prosecution of the work. The obligation of Mox-ley & Oo. to repay the loan was unaffected by the use they made or might make of the money borrowed. While Moxley & Co. represented that the money would be used in the purchase of labor and material called for in their contract, they did not obligate themselves to so use it. They had a perfect right, in soi far as the bank was concerned, to' apply the money to any other purpose they saw proper. It is therefore clear that this debt did not gx-ow out of the prosecution of that particular work. It is equally clear that the bank is not included in the second class of claimants above referred to. Tbe words “by reason thereof,” as used in tbe third group, refer to claims resulting either from the faulty construction of the work or from the prosecution of the work. Since the bank’s debt belongs to neither of these classes, it is not within; the third group.

The case of Puget Sound Bank v. Gallucci, 82 Wash. 445, 144 Pac. 698, Ann. Cas. 1916A, 767, is referred to by counsel for appellee as authority in its favor. We have carefully examined that case, and find that the language employed in the bond there involved is more comprehensive than that relied upon in this case, and for that reason the two cases are distinguishable.

We therefore conclude that the appellee bank neither alleged nor proved facts sufficient to authorize the judgment rendered in its favor against the surety company on its 'bond in this suit. ^

The judgment in favor of the city for the maintenance fund of 10 cents per square yard, aggregating $1,410, is not in such form as will permit any unused portion thereof to be recovered by the party entitled to it at the end of the five-year period. If any portion of that fund should remain, the surety company would be entitled to it under its contract with Moxley & Go. That portion of the judgment should be modified so as to protect that right. The remaining assignments of error are overruled.

The judgment of the trial court will be reformed in accordance with the conclusions here announced.
      <5=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HARPER, C. J.

license: Public Domain

text:
    THARP et al. v. STRIKER et al.
    (No. 687.)
    (Court of Civil Appeals of Texas. El Paso.
    April 19, 1917.
    Rehearing Denied May 17, 1917.)
    1. Witnesses <§==>139(11) — Transactions with Deoeaseb — Surviving Widow.
    In a suit against a surviving widow and heirs of a party to a contract for the purchase of land, it was not error to exclude the testimony of the widow under Sayles’ Ann. Civ. St. 1897, art. 2302, providing that in actions by or against executors, administrators, or guardians in which judgments may be rendered for or against them as such, neither party shall be allowed to testify against the others as to any transaction with or statement by the testator, intestate, or ward, and extending such provisions to actions by or against heirs or legal representatives of a decedent arising out of any transaction with such decedent.
    [Ed. Note — For other cases, see Witnesses, Cent. Dig. § 592.]
    2. Vendor and Purchaser <§=>44^-Actions —Evidence.
    In a suit to recover an undivided interest in real estate based on a contract to purchase, evidence held sufficient to sustain the judgment of the trial court that no contract to purchase was ever entered into.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 69-76.]
    ' Appeal from District Court, Knox County; Jo. A. P. Dickson, Judge.
    Action by W. C. Tharp and others against Mrs. Addie Striker and others. Judgment for defendants, and plaintiffs appeal.
    Affirmed.
    Mears & Watkins, of Gatesville, for appellants. D. J. Brookreson. of Benjamin, for appellees.
   HARPER, C. J.

This is a suit to recover an undivided interest of 50 acres in a tract of 160 acres of land in Knox county, Tex. Abstract No. 11, filed July 5,1915. For cause of action plaintiff alleged that in 1907 T. C. Striker and wife and plaintiffs, W. C. Tharp and wife, went together from Coryell to Knox county to purchase the said land; that it was agreed between them that it was necessary for plaintiffs to take a portion of the survey to enable Striker and. wife to make the purchase; that the purchase was made of one McMullen, with the agreement that plaintiff should have 50 acres; that 50 acres were delivered to plaintiffs; that they moved on the land, built a house, made other improvements, put it in cultivation, etc.; that it was agreed that a deed should be made later, but before this was done, Striker died, and the deed was never made; that the money advanced by plaintiffs was accepted and applied upon the original purchase price. They pray judgment for the 50-acre interest, for partition, and in the alternative for judgment for $1,500, the amount of money paid and value of the improvements, and that lien for said amount be established' and foreclosed. Defendants plead general denial and not guilty. For special answer say that if plaintiffs contracted to purchase any portion of the land, it was many years ago, was never consummated, was abandoned. That if they put any improvements on it, they were of little value, and that they had received full value thereof in the way of rents from the use of it, and specially deny that plaintiffs paid any portion of the original purchase price. Further plead that the property was her homestead as surviving widow; therefore not subject to partition during her lifetime. Tried without jury, and judgment entered for defendants, from which this appeal is prosecuted.

First assignment of error reads:

“The court erred in failing and refusing to consider the testimony of Mrs. Addie Tharp in making up his verdict in this case by holding that Mrs. Addie Tharp was not a competent witness to testify in this case, because she was a party to the suit and related to the defendant Mrs.- Addie Striker in the relationship of daughter and to the other defendants in the relationship of being their sister, and held that, under article 2302 Sayles’ Civil Statute, she was not a competent witness. This was error, in that said article did not make Mrs. Addie Tharp an incompetent witness, and that this was a suit partly in the nature of trespass to try title under a parol conveyance, and for partition, which more fully appears in plaintiff’s hill of exception No. 1.”

The bill of exceptions with the qualification of the trial judge shows that the testimony, in form of deposition, was admitted in evidence, except such portions as were incompetent under article 3690, R. S. Vernon’s Sayles’ 1911. This leaves it in doubt whether the court considered all of the statements of the witness or not.

The appellant urges that this suit was not against the defendants as heirs and representatives of the deceased; therefore does not come within the inhibition of the statute. As will be noted from pleadings quoted above, the suit is against the surviving widow and heirs of T. O. Striker, deceased, and we believe comes within the statute under Boiders v. Dooley, 154 S. W. 614, and authorities there cited.

But if there is a distinction, this trial having been before the court and no findings of facts and conclusions of law having been filed, we must here sustain the judgment of the trial court on any theory which the pleadings and evidence will permit or sustain. The defense to plaintiff’s action was threefold: First, that no contract of sale was ever made to plaintiff-; second, if the contract alleged was made, it was voluntarily abandoned by plaintiff; and, third, that the 160 acres was the homestead of the surviving widow, and therefore not subject to be partitioned during her lifetime. There is evidence sufficient to sustain the judgment of the trial court upon the theory that no such contract was made, or, if made, abandoned. Malone v. Fisher, 71 S. W. 996; Tinsley v. Penniman, 8 Tex. Civ. App. 495, 29 S. W. 175; Reed v. Brewer, 90 Tex. 144, 37 S. W. 418. This disposes of the third and last assignment, which is that the court erred in finding for the defendant because the evidence is insufficient to sustain such finding.

Finding no reversible error in the record, the cause is affirmed.
      <S==>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: FLY, C. J.

text:
    GEMBLER v. BAKER.
    (No. 5852.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 2, 1917.)
    Partnership <⅞^55 — Action against Part-nebs — Evidence.
    In an action on a guaranty, evidence held sufficient to sustain a finding that defendant and his son, sued as partners, were liable as such.
    [Ed. Note. — For other cases, see Partnership, Cent. Dig. §§ 75, 78, 79, 81.]
    Appeal from Bexar County Court for Civil Cases; John H. Clark, Judge.
    Action by A. P. Baker against W. F. Gem-bler and another in justice’s court. From a judgment on certiorari to the county court, defendant W. F. Gembler appeals.
    Affirmed.
    Diedrich A. Meyer, of San Antonio, for appellant. Lewright & Douglas and Louis H. Porter, all of San Antonio, for appellee.
   FLY, C. J.

This is a suit for $164, instituted in the justice’s court by appellee against appellant and W. J. Gembler. Judgment by default was taken in the justice’s court, and the cause was then carried by certiorari to the county court, where it was tried by jury, resulting in a verdict and judgment for appellee in the sum of $164. W, F. Gembler alone appeals.

The two Gemblers, appellant being the father of W. J. Gembler, were sued as partners, and the only issue in the case was that of partnership. The court instructed the jury:

“If you find from the evidence that the two defendants were partners, then you will return your verdict for the plaintiff against both of the defendants, but if you do not find they were partners, you will return your verdict against W. J. Gembler and in favor of W. F. Gembler.”

The jury returned the following verdict:-

“We, the jury, find for the plaintiff against W. F. Gembler and W. J. Gembler for the sum of $164.00.”

That was a finding, under the charge, that appellant was a partner of W. J. Gembler. The issue as to partnership was one of fact, to be determined by the jury, and the verdict finding a partnership cannot be disturbed if there is any testimony to sustain it. The facts are that the property known as Exposition Park was leased by the West End Lumber Company to the firm of Rippey & Rossy for the year 1915, appellant and W. J. Gembler guaranteeing the performance of the terms of the contract by Rippey & Rossy. When the latter firm failed to carry out their contract, of course the Gemblers became liable on their guaranty and the most natural thing for them to do would be to take charge and run the park themselves in order to save themselves from liability. However, they s,wear that W. J. Gembler, who does not seem to be the monied man of the concern, took up the contract alone. The jury, however, had circumstances before them from which they could draw the reasonable conclusion that, father and son being on the bond, and the father being the man financially responsible, he would, to protect himself from liability, prevent a breach of the contract by running the park associated with his son. When appellee went to appellant to obtain his wages for work performed in the park, appellant told him to wait, and he (appellant) would pay him, and on another occasion appellee saw appellant in the cotton field and asked him for pay, and he promised to come in Saturday and pay some money. Ap-pellee swore that he “heard appellant giving orders around there and making suggestions about the operation of the park.” Appellant prevented the bookkeeper from discharging a drunken employé at the park, and said that the man was working for him. Appellee also testified that W. J. Gembler sent him to appellant for his pay. He sent others to appellant for their pay. Appellant never repudiated the debts, but always said if time was given he would pay the debts. Gregory and P. M. Baker corroborated appellee in his statements as to the promises of appellant to pay him. J. G. Ohilcoat testified that he was present at a meeting of what he called “the right holders out there,” which was held to elect a manager, and appellant made the statement “that as long as he had anything to do with the park that Willie would be manager.” “Willie” was W. J. Gembler. Appellant said to Ohilcoat: “Bon’t worry; you will get your money.” Appellant went to the park every Saturday, and always went to the bookkeeper. Under the terms of the contract appellant and his son were, to all intents and purposes, colessees with Rip-pey & Rossy, for they fully guaranteed the contract “to the same extent and as are the said lessees hereby bound.” B. G. McCown fully corroborated Ohilcoat as to what appellant said about electing “Willie” manager at the meeting of the “right holders.”

Appellant and his son denied that they were partners, but the jury were justified in believing that they were from the strong circumstances surrounding the running of the park. It is almost inconceivable that appellant, who was the guarantor of the performance of the contract, and was responsible for the rent, would retire and allow his son to operate the park. He did- not surrender the matter to his son, but took part, when present, in the conduct of the business. Avocato v. Dell’Ara, 77 S. W. 47. Of course there is no direct evidence that a partnership existed, but the circumstances lead to that conclusion, and, as said in Miller v. Laughlin, 147 S. W. 711:

“We know of no fact, relation, or condition known to the law that cannot be proved by circumstantial evidence as well as by direct. ⅝ ⅜ * Indeed, if circumstantial evidence could not be resorted to, persons dealing with the firm could only hold the one or the other member according to whether the partnership was denied or not.”

It is usually the case that the one denying his liability as a partner is the only one who is solvent and able to pay.

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


author: HIGGINS, J.

text:
    ABILENE GAS & ELECTRIC CO. v. THOMAS et al.
    (No. 698.)
    (Court of Civil Appeals of Texas. El Paso.
    April 26, 1917.)
    1. Electricity <§=>19(8) — Jury Question — Negligence.
    ' Where plaintiff’s husband was electrocuted by a broken electric transmission line, a witness’ testimony held to make defendant’s negligence in not having automatic circuit breakers attached to the line a jury question.
    [Ed. Note. — Eor other cases, see Electricity, Cent. Dig. § 11.]
    2. Electricity <®=19(13) — Requested Instructions — Negligence.
    Where the general charge authorized a recovery if defendant was negligent in constructing, operating, or maintaining its electric plant, it was error to refuse instructions eliminating grounds of negligence alleged but not supported by 'evidence.
    [Ed. Sfote. — For other cases, see Electricity, Cent. Dig. § 11.]
    3. Electricity <§=>19(13) — Instructions— Negligence.
    Where plaintiff’s husband was electrocuted by broken transmission line, a requested instruction to. find for defendant if the condition was caused by an owl flying against the wires, it was properly refused where there was evidence that even in such a case a circuit breaker would have prevented the injury.
    [Ed. Note. — Eor other cases, see Electricity, Cent. Dig. § 11.]
    4. Trial <§=>191(7) — Instructions — Assukp-tton op Facts — Contributory Negligence.
    Instructions should not assume that certain facts constitute contributory negligence, hut leave such issue to the jury.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 430.]
    5. Trial <§=>252(8) — Instructions — Negligence — Issues.
    In an action to recover for death by electrocution, instructions submitting all issues of negligence raised by the pleading's are erroneous, where all but one were unsupported by evidence.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 603.]
    6. Trial <§=>193(3) — Instructions — Negligence.
    In an action to recover for death by electrocution, an instruction that defendant’s failure to turn off the current under certain circumstances constituted negligence is erroneous, since the trial court should not instruct whether certain facts constitute negligence.
    [Ed. Note. — For other cases, see Trial, Cent. Dig'. § 438.]
    7. Trial <§=>253(9) — Instructions—Contributory Negligence — Ignoring Evidenoe.
    In action to recover for death by electrocution, an instruction that defendant had the burden of proving deceased’s contributory negligence is erroneous where plaintiff’s testimony tended to establish such defense, since the jury might be led to believe they should consider only defendant’s testimony upon that issue.
    [Ed. Note. — Eor other cases, see Trial, Cent. Dig. § 620.]
    Appeal from District Court, Taylor County; W. P. Mahaffey, Special Judge.
    Action by Mattie Thomas and others against the Abilene Gas & Electric Company. Judgment for plaintiffs, and defendant appeals.
    Reversed and remanded.
    J. M. Wagstaff and Cunningham & Oliver, all of Abilene, for appellant. Preston Martin, of Weatherford, and Scarborough & Davidson, of Abilene, for appellees.
   HIGGINS, J.

Mattie Thomas, for herself and as next friend for her minor children, brought this suit against appellant to recover damages resulting from the alleged negligent killing of A. J. Thomas, the husband of said Mattie Thomas and father of the minor children. The defendant owned and operated a ■high tension electric transmission line extending from Abilene to Merkel, strung on poles erected along and adjacent to the Abilene-Merkel public road. The power plant was located in Abilene. The deceased with his family was traveling this road and camped for the night at a point in the road and adjacent to the electric line. During that night the line broke and the severed ends fell to the ground in close proximity to the camp site. The next morning deceased was driving his horse from the creek, where it had strayed, back to the camp site, and in doing so he and the horse came in contact with the end of the wire leading back to the power plant and which was heavily charged with electricity, and in consequence thereof they were both instantly electrocuted. Upon trial, verdict was returned and judgment rendered in favor of plaintiff and her minor children, and defendant appeals.

Complaint is first made that the surviving mother of deceased was a necessary party plaintiff, and the failure so to join her was error. The case must be reversed for other errors, and it is not necessary to pass upon this question or the kindred ones presented, as there is no occasion for same to arise upon retrial. She can be readily made a party.

The peremptory instruction requested by defendant upon the theory that negligence was not shown was properly refused. The testimony of the witness Carroll is sufficient to raise an issue of negligence on the part of defendant in failing to have an automatic circuit breaker or switch attached to the Abilene-Merkel line, which would have automatically broken the current when the wire became severed. It is very true there is an abundance of evidence in the record to the effect that such an instrument would not have so broken the current, and that there is no practical instrument in use which would have done so, but the issue raised by Carroll’s testimony was for the jury’s determination. This is the only issue of negligence raised by the evidence; but in view of a retrial, we refrain from comment upon the probative effect of the evidence offered;

The peremptory instruction requested upon the theory that deceased was guilty of contributory negligence was likewise properly refused. For reasons indicated, we do not comment upon this phase of the evidence further than to say that it clearly does not present a case where the court would be authorized in assuming as a matter of law that deceased was guilty of contributory negligence.

Assignments Nos. 7 to 15 complain of the refusal of requested charges instructing the jury not to consider various allegations of negligence contained in the petition, and to support which no evidence was offered. The petition set up about 20 specific grounds of negligence as the basis of a recovery. The affirmative presentation of plaintiff’s right to recover was contained in those paragraphs of the general charge which read:

“VIII. I charge you that it was the duty of the defendant company to use ordinary care in the construction, maintenance, and operation of its said electric line from Abilene to Merkel, and to. exercise ordinary care to so construct, maintain, and operate said line as to prevent injuring persons in and upon the public road from Abilene to Merkel, and if the defendant failed to exercise ordinary care in the construction, operation, and maintenance of such line, such failure would, in law, be negligence, and if you believe from the evidence in this case that the defendant was negligent in the construction, operation, and maintenance of said electric line, and that such negligence, if any, on the part of the defendant, was the proximate cause of its said wire breaking and falling in and upon said public road, and that plaintiff’s husband and the said horse came in contact with said wire and were thereby killed; and that such killing was the direct and proximate result of the defendant’s negligence, if ány, and you should further believe and find that the plaintiffs have sustained any damages thereby, then you will find for the plaintiffs, unless you should further believe and find that plaintiffs’ said husband and father was killed through his own contributory negligence, as that term is herein defined.
“IX. Or if you believe and find from the evidence that the defendant maintained proper and suitable appliances and devices at its power plant for the purpose of indicating when a wire charged with electricity was broken and down on the ground, or by the use of ordinary care and diligence it could have maintained such appliances and devices, but if you find that it failed to exercise ordinary care in maintaining said appliances and devices, or that it failed to exercise ordinary care as to the inspection and operation of such appliances, and you further find that if defendant had inspected stfch devices or appliances it could and would have been seen and known that such charged wire, if any, was broken and down on the ground'in time to have prevented the injury, and that defendant failed to exercise ordinary care as to inspecting such appliances (if any), and if you further find that such failure (if any) was negligence, and that said negligence was a proximate cause of the death of the said A. J. Thomas, and the said horse, and that the said A. J. Thomas was not guilty of contributory negligence and that on account of his death, plaintiffs have sustained a pecuniary loss, you will find for the plaintiff.
“X. Or if you believe and find from the evidence that the defendant knew that one of its transmission wires was down and grounded upon said public road, or by the exercise of ordinary care and diligence could have known such facts, and knew that said broken and grounded wire was’ dangerous to persons in and upon said public road and that by the exercise of ordinary care the said defendant could have turned off the current of electricity from such wire, but that it failed to do so, and any injury resulted to plaintiffs’ said husband and father as the direct and proximate result of such failure to turn off said current, then such failure, if any, on the part of the defendant, would, in law, constitute negligence, and if you further find and believe that plaintiffs’ husband and father and said horse, as a result of said negligence, were killed, and that plaintiffs have sustained any pecuniary loss thereby, and that the said A. J. Thomas was not guilty of contributory negligence, then you will find for the plaintiffs.
“XI. Or if you believe and find from- the evidence that the defendant knew, or by the exercise of ordinary care could have known, that one of its wires was broken and grounded on said line, and further believe from the evidence that the defendant, with such knowledge on its part, turned into said wire, the current of electricity callable of endangering the lives of persons and animals along and upon such public road, and you further believe and find that such facts, if any, on the part of the defendant, was negligence, and you further believe that as a direct and proximate result of such negligence, if any, plaintiffs’ husband and father was killed, and that the said A. X Thomas was not guilty of contributory negligence, and that the plaintiffs sustained any pecuniary loss thereby, then you will find for the plaintiffs.”

It will be noted that this charge submits the issue of negligence in the construction, operation, and maintenance of the liné as grounds of recovery in the very broadest and most general terms. So broad, in fact, that it authorized a recovery upon any grounds of negligence in the construction, operation, and maintenance of the plant which the evidence might disclose whether pleaded or not. In this condition of the general charge, it was error to- refuse instructions which withdrew from the consideration of the jury grounds of negligence alleged, but which were unsupported by the evidence. Railway Co. v. Miller, 79 Tex. 78, 15 S. W. 264, 11 L. R. A. 395, 23 Am. St. Rep. 308; City of Greenville v. Branch, 152 S. W. 478; Railway Co. v. Ames, 94 S. W. 1115.

The court did not err in refusing to instruct a verdict for defendant if it was found from the evidence that an owl flew against or came in contact with the defendant’s electric wire and at the same time came in contact with the metal cross-arm or brace on the pole, thereby causing a spillover of the electric current and causing the wire to break. This was properly refused because it ignored the issue of liability based upon the failure to have a circuit breaker attached to the wire. It was shown that there was no 'circuit breaker attached to the Abilene-Merkel wire and under the testimony of the witness Oarroll noted above, the jury might have found that defendant was negligent in that particular.

Eor like reason special charge No. 14, the refusal of which is made the basis of the seventeenth assignment, was properly refused.

The eighteenth and nineteenth assignments complained of the refusal of special instructions submitting to the jury the issue of contributory negligence. These charges were not in proper form. They assumed that the existence of certain facts would constitute contributory negligence as a matter of law instead of submitting to the jury for its determination the question of whether or not the existence of such facts would constitute such negligence. Hence there was no error in refusing same.

The twentieth assignment complains of the court’s submission in its general charge of the issue of contributory negligence. The objection is predicated upon the same theory that the charge should have assumed that the existence of certain facts would have constituted contributory negligence. This particular objection to the court’s submission of the issue of contributory negligence is without merit.

Various objections are urged to those portions of the general charge quoted above. Of those urged, the following are well taken: The same did not limit plaintiffs’ right of recovery to the specific acts of negligence alleged and in general terms, submitted all the issues raised by the pleadings when all issues' so raised were without evidence to support them except the alleged failure to have an automatic circuit breaker. The tenth paragraph instructs that the failure to turn off the current of electricity under certain circumstances constituted negligence as a matter of law, and violates the rule obtaining in this state that the trial court shall not instruct that certain facts do or do not constitute negligence.

The ninth paragraph submits as an issue of negligence a failure to inspect appliances, and there is no allegation of such failure, nor is there any evidence of such failure.

Error is also assigned to that portion of the general charge imposing upon the defendant the burden of proving contributory negligence on the part of deceased in coming in contact with the broken wire. The testimony tending to show contributory negligence came from the lips of the plaintiffs. In this state of the evidence the charge was calculated to lead the jury to believe that they should consider alone the evidence offered by the defendant upon that issue, and was error. Railway Co. v. Hill, 95 Tex. 629, 69 S. W. 136; Railway Co. v. Reed, 88 Tex. 439, 31 S. W. 1058.

Complaint is made of the court’s definition of contributory negligence and proximate cause. That of contributory negligence is possibly sufficient, though not commendable. That of proximate cause is improper. Its meaning is not clear; it is confusing and misleading.

Objection is urged to the admission of the testimony of plaintiffs’ witness Oarroll upon the ground that he did not qualify as an expert. The court did not err in overruling this objection. He sufficiently qualified to warrant the admission of his evidence.

Complaint is made of the measure of damage submitted by the court. We think the same is subject to criticism, but possibly is not sufficiently objectionable to constitute reversible error. Upon retrial, it is suggested that the approved forms for the measure of damage in cases of this nature be followed. ■ ,

It is complained of the judgment that it is excessive. In view of the reversal which must be entered in this ease, it becomes unnecessary to pass upon this assignment.

Reversed and remanded.
      <&=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HLY, C. J.

text:
    AMTHON v. FIRST STATE BANK OF UVALDE.
    (No. 5849.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 2, 1917.)
    1. Bills and Notes <§=523 — INDORSEMENT-SUFFICIENCY OF EVIDENCE.
    In a suit on a note payable to maker and indorsed on the back in maker’s name, in which defendant, the maker, pleaded non est factum as to the indorsement, but admitted the execution of the note, evidence held to support a finding that the maker executed the indorsement.
    [Ed. Note. — Hor other cases, see Bills and Notes, Cent. Dig. §§ -1822-1825.]
    2. Bills and Notes <§=337 — Hraud— Evi-DEN CE — NATURE.
    The mere fact that a bank agreed to take before they were executed the notes of persons on a list of men desirable for insurance given by the bank to an insurance agent was no evidence of fraud and did not put the bank upon notice of any fraudulent representations made by the insurance agent to the makers of the notes.
    [Ed. Note. — Eor other cases, see Bills and Notes, Cent. Dig. §§ 856-863.]
    Appeal from Uvalde County Court; W. D. Love, Special Judge.
    Action by the Hirst State Bank of Uvalde against G. M. Amthon. Judgment was for plaintiff in a justice’s court, and from a judgment for plaintiff in the county court, the defendant "appeals.
    Affirmed.
    L. Old and D. H. Jones, both of Uvalde, for appellant. Martin & Martin, of Uvalde, for appellee.
   HLY, C. J.

This is a suit on a note executed by appellant and made payable to the order of himself, for $174.05, with interest from January 21, 1915, its date. The note was indorsed on the back: “G. M. Amthon, Uvalde, Box 494.” He pleaded non est factum .as to the indorsement, but admitted the execution of the note. Appellant also pleaded failure of consideration. The cause was first tried in the justice’s court, then appealed to the county court. In each court judgment was rendered in favor of appellee.

Appellant swore that he executed the note payable to his order, but denied that he signed the indorsement on the back of the note. The trial judge found that he did execute the indorsement, and there is testimony which corroborates that finding. Stevenson, the agent of an insurance company, sold to appellant a policy on his life, the premium being $174.05, and the note in question was given for the first premium. Stevenson, before going out to solicit insurance in Uvalde, obtained from appellee a list of desirable men for insurance, among the number being appellant, and appellee agreed that it would cash the notes of the parties listed. Appellant gave the note sued on, payable to himself, and it is unreasonable to suppose that the agent would have accepted or that appellant would have endeavored to get the agent to accept a note payable to the maker, but not indorsed by him. Such a note would have been worthless to the agent, or at least would not have been negotiable. Appellant, when first shown the note, did not claim that he did not indorse it, but agreed to get his father to go on the note with him, if an extension was granted. He came back again and asked to see the note and looked at the indorsement, but did not deny that he had executed it. He did not claim that the indorsement was a -forgery until after he had been sued. Three experts swore that the signatures to the note and indorsement were made by the same person.

There is nothing in the testimony that tends to show that appellee had any knowledge of the promises made to appellant to give -him an agency for the insurance company. That promise may have been made, but appellant accepted the policy when it was sent to him. The bank bought without notice and for value, before maturity. The mere fact that appellee agreed to take the notes of appellant and others before they were executed was no evidence of fraud ana did not put appellee upon notice of any fraudulent representations made by the insurance agent to the makers of the notes. The case of Brown v. Miller, 22 Idaho, 307, 125 Pac. 981, has no applicability to the facts of this case. The facts in that case were held to be sufficient to put the receiver of an insolvent bank on notice that fraud had been used to procure the giving of certain notes. There was nothing in this case to put appellee upon notice.

The case of Talbot v. Dillard, 22 Tex. Civ. App. 360, 54 S. W. 406, is a fact ease, in which it was held that when a party denied his signature to the note, and his testimony was strongly supported by circumstances, and the testimony of one expert who testified that, in his opinion, the signature was not genuine, the evidence could not be overcome by the opinion of another expert. A different set of facts are presented in this case, for not only did three experts testify that the signature to the indorsement was genuine, but the circumstances corroborated that opinion.

The judgment is affirmed.


text:
    WITT et al. v. YOUNG.
    (No. 5846.)
    (Court of Civil Appeals of Texas. San Antonio.
    April 19, 1917.
    Rehearing Denied May 16, 1917.)
    1. Appeal and Ekrob <§=230, 301 — Reservation of Grounds — Instructions.
    Where no objections are urged against an instruction when it is given, or on motion for new trial, its propriety will not be considered on appeal.
    [Ed. Note. — Hor other cases, see Appeal and Error, Cent. Dig. §§ 1743, 1753-1755; Trial, Cent. Dig. § 680.]
    2. Bills and Notes <§=489(1) — Actions — Pleading.
    In a suit on a note, where defendants’ contention that the balance due represented the amount of a note given for certain shares of stock sold by a private corporation contrary to law was denied by plaintiff, the pleadings justified the admission of testimony that the shares were purchased, not from the corporation, but from an individual to whoin they had in good faith been sold by the corporation.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. § 1587.]
    Appeal from Uvalde County Court; T. M. Milam, Judge.
    Action by Harry Young against S. P. Witt and others on a promissory note. Judgment for plaintiff on special issues, and defendants appeal.
    Affirmed.
    Martin & Martin and Jno. W. Hill, all of Uvalde, for appellants. D. Old and D. H. Jones, both of Uvalde, for appellee.
   FLY, C. J.

This is an appeal from a judgment on a promissory note for $923.75, based on the answers by a jury to special issues submitted by the court. Appellants, S. P. Witt, M. L. Witt, and P. C. Witt answered in the case that the balance due on the note was given for certain shares issued contrary to law, and that there was no consideration, and that the note had been assigned to appellee after maturity, in an irregular and improper way. The jury found against appellants on all the issues.

The first assignment of error complains of a charge to the effect that, after appellee introduced the note in evidence, the burden was upon appellants to establish their defense by a preponderance of the evidence. We are not called upon to pass upon the propriety of the charge, as no objection was urged to' it at the time it was given, nor even in the motion for new trial. The assignment does not present fundamental error.

The contention of appellants was that the balance on the note upon which the suit is founded represented the amount of a note for $500 given for five shares in the Ranch-man’s Mercantile Company, a private corporation, and was therefore void. These allegations were denied by appellee, and in order to meet appellants’ evidence that the shares were purchased from the corporation, appellee was permitted to show that the shares were purchased from an individual to whom they had, in good faith, been sold by the corporation. The pleadings were sufficient to justify the admission of such testimony, and the court did not err in presenting the issue to the jury. Buying the shares from the individual was not illegal, and proof of that fact was a defense to the answer of appellants. It was not in contravention of the statute for the individual to take notes in payment of the stock owned by him. Scheffel v. Smith, 169 S. W. 1131. The second and third assignments of error are overruled.

The fourth assignment of error is too general for consideration, but it may be stated anyway that the answers of the jury were in response to the facts, and the law sustains the judgment. There is nothing confusing or inconsistent about the answers of the jury.

The objections to the evidence of S. P. Witt as to his assumption of the note for $500 given by E. L. Witt & Sons are not tenable. The evidence had no tendency to confuse and divert the jury from the issues. The answers indicate that the jury were not diverted or confused. The assignment is not followed by a proper statement.

There is no merit in the sixth assignment of error. The court did not err in permitting appellee to testify that he bought the note for value and without notice of. any vice in it. The seventh assignment of, error is overruled.

The judgment is affirmed.
      <8=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: JENKINS, J.

text:
    GENERAL BONDING & CASUALTY INS. CO. v. LAWSON.
    (No. 5760.)
    (Court of Civil Appeals of Texas. Austin.
    April 25, 1917.)
    1. Abatement and Revival <®=ml7 — Another Action Pending — Pleading.
    A cause will not be dismissed upon motion because of another action pending, but such objection must be raised by plea in abatement or plea of res judicata.
    [Ed. Note. — For other cases, see Abatement and Revival, Gent. Dig. §§ 123-136.)
    2. Evidence <®r=o43(3) — Judicial Notice — Judicial Records.
    The court will not take judicial notice of its records in another case until the same is offered in evidence, although such records, when offered, prove themselves.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 64.]
    Appeal from District Court, Hamilton County; J. H. Arnold, Judge.
    Petition by the General Bonding & Casualty Insurance Company against C. T. Lawson. Cause dismissed, and plaintiff appeals.
    Reversed and remanded.
    T. L. Camp and C. M. Smithdeal, both of Dallas, for appellant. Chris Emmett, of Jacksonville, and H. E. Chesley and Dewey Langford, both of Hamilton, Texas, for ap-pellee.
   JENKINS, J.

The appellant filed its; petition herein in the district court of Hamilton county, containing the same allegations as in the petition of plaintiff in error against defendant in error* in the cause this day decided by this court upon writ of error, except that in the former case the appellant alleged that the appellee had obtained a final judgment against the Hamilton Compress Company, whereas in the instant case the appellant alleged:

“That the judgment obtained by said Lawson against the Hamilton Compress Company, and upon which said Lawson based his affidavit for the writs of garnishment aforesaid, was not and is not now a final judgment in this; that- the Supreme Court of Texas on, to wit, the 8th day of March, A. D. 1916, granted a writ of error to the Court of Civil Appeals for the Third Supreme Judicial District of Texas in said, cause, and assumed jurisdiction thereof, and that said cause in which said Lawson recovered said judgment against the Hamilton Compress Company is now pending in the Supreme Court of the state of Texas, which said court has not decided whether said judgment recovered by Dawson against the Hamilton Compress Company shall be affirmed, or whether the same shall be reversed.”

Appellee filed his motion to dismiss this cause upon the ground that this was a suit between the same parties and for the same cause of action as the cause in which judgment had been rendered by the district court of Hamilton county at its then term, and that the same had not been finally disposed of but was then pending between said parties. Appellee attached as an exhibit to his answer the petition of appellant in the former case, and the judgment of the court therein. [The district court of Hamilton: county sustained said motion and dismissed said cause of action, from which action of the court the appellant prosecutes this appeal.

Appellant under appropriate assignments of error contends, in substance, that the court could not dismiss this case upon motion, but that the matters therein alleged could be decided by the court only upon plea in abatement, or a plea of res adjudi-cata.

In this we think that appellant is correct. The court could not know that the matters alleged in appellee’s motion were true without the same were proven by its records, and the court could not judicially note the contents of its record in another case until the same were offered- in evidence. As a basis for the introduction of evidence the facts must be alleged by plea and not set up by way of motion.

“As a general rule a court will not judicially recognize the contents of any of its records except the one in the proceeding before it. Though the records of the court prove themselves when offered in evidence, yet in the trial of one case the court can no more take judicial notice of the record in another case in the same court without its formal introduction in evidence than if it were a record in another court. * ⅜ ⅝ So two suits for the same cause of action may be pending in the same court between the same parties, but the fact never claims judicial attention until the pendency of one suit has been pleaded in abatement of another.” 15 R. O. L. 1114.

In Stanley v. McElrath, 10 L. R. A. 550, the Supreme Court of California said: '

“The finding of the court that the defendant’s claim of offset and counterclaim had been adjudicated in a former action, prior to the trial of this action, is not supported by the evidence. The court could not dispense with formal proof of its judgment in another action and take judicial notice of the fact that the affirmative matters set out in defendant’s counterclaim and offset had been therein adjudicated.”
“An objection that another action is pending in the same court for the same cause should be raised by plea, and is not ground for dismissal, unless it appears on the face of the declaration or bill; nor is the fact of a former adjudication as to the same cause of action a ground for dismissal, unless such former adjudication appears on the face of the declaration.” 14 Cyc. pp. 431, 432.

See, also, Moore v. Helms, 74 Ala. 368; Bliss v. Smith, 42 Vt. 198; Covert v. Vonhardtmutt, 103 Tenn. 463, 53 S. W. 730; Houston v. Perry, 3 Tex. 235; and note to Lanfear v. Mestier, 89 Am. Dec 688, and cases there cited.

In the instant case the petition showed upon its face a good cause of action, and made no reference to the other case pending between said parties. For the error of the court in sustaining the motion of appellee and in dismissing this cause from its docket, the judgment of said court is here reversed, and this cause is remanded for further proceedings.
      <g=3For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WALTHADD, J.

text:
    AUTO SALES CO. et al. v. BLAND.
    (No. 694.)
    (Court of Civil Appeals of Texas. El Paso.
    April 26, 1917.
    Rehearing Denied May 17, 1917.)
    1. Appeal and Error <$=>1066 — Harmless Error — Instruction.
    In an action for damages to an automobile from a collision, an instruction that, “to enable the court to decide this case,” the same is submitted on special issues, and that the jury should answer the question whether the defendant driver was an agent of the defendant company in driving the automobile “at the time it collided with plaintiff’s ear,” though erroneous, in that the quoted words indicated how the issues presented should be answered and that defendant’s car was the aggressive one, did not require a reversal, where it appeared from defendant’s pleading and testimony that the collision was due to the driver turning in the wrong direction, in the mistaken belief that plaintiff’s wife, the driver of his car, would not turn out, but would keep the ear in the smooth portion of the road.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4220; Trial, Cent. Dig. § 596.]
    2. Highways <$=>184(4) — Automobile Accidents — Instructions.
    An instruction, in such case, that when vehicles meet on a highway it is the duty of each driver to turn to the right, unless there are obstacles or circumstances demanding a turn to the left, was not erroneous, as charging that it was defendant’s duty to drive off the public road onto a generally traveled detour or curvature, in order to turn to the right of car approaching on such detour or curvature.
    [Ed. Note. — For other cases, see Highways, Cent. Dig. | 474.]
    3. Trial <$=>252(7) — Instructions—Applicability to Pleading and Prooe.
    Where, according to defendant’s pleadings and proof in an action for damages to an automobile from a collision, the collision resulted from defendant turning to the left in the mistaken belief that plaintiff’s automobile would, not be turned to the right, it was not error to refuse an instruction on the law of accident.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. i 602.]

      4. Master and Servant @=3332(2-) — Agency-Question eor Jury.
    Where, in an action for damages to an automobile from a collision, the evidence showed that the defendant company’s car was being driven by a salesman returning frdm a trip on which he had demonstrated the car to a prospective purchaser in territory in which he was permitted to make sales, the question of the agency of the driver for the company at the time of the collision was for the jury.
    [Ed. Note. — For other cases, see Master and Seryant, Gent. Dig. § 1275J
    5. Highways @=>184(4) — Automobile Accidents — Submission oe Issues.
    The court did not err in refusing to ssibmit to the jury the question whether the defendant driver at the time of the accident was acting for the company in matters of their business; such question being only as to an evi-dentiary fact, which would not have determined the question of agency, and which would have tended only to confuse the main issue.
    [Ed. Note. — For other cases, see Highways, Cent. Dig. § 474.]
    Appeal from Taylor County Court; E. M. Overshiner, Judge.
    Action by R. D. Bland against the Auto Sales Company and others. From judgment for plaintiff!, defendants appeal.
    Affirmed.
    IT. N. Hickman, of Abilene, Beall & Douth-it, of Sweetwater, and E. R. Spencer, of Roby, for appellants. Ben D. Cox, of Abilene, and C. D. Mims, of Merkel, for appellee.
   WALTHADD, J.

R. L. Bland brought this suit against B. S. Cook and the Auto- Sales Company, a partnership composed of A. H. Eicke and W. H. Bray, to recover damages alleged to have been sustained to his automobile in a collision in which his automobile was wrecked and its various parts broken and injured.

Appellee alleged in substance that he resides in Taylor county, and that appellants reside in Nolan county; that Eicke and Bray were engaged in the business of selling automobiles under the firm name of Auto Sales Company, and that Cook was employed by them as agent to assist them in said business and in the demonstration of cars for them, and is their sales agent; that the Auto Sales Company sent one of its cars into Taylor county by Cook, and that Cook was demonstrating said car in Taylor county as agent, and within the scope of his employment as agent, and was attempting to sell said car to a prospective purchaser in Taylor county for said Auto Sales Company, and that the prospective sale of the car, or some other car, was the business which brought Cook into Taylor county at that time; that while Cook was demonstrating sáid car, and while driving west on the public road near Trent, Taylor county, and while acting as said agent, he met appellee’s wife .driving east on said public road in an automobile; that Cook saw 'appellee’s car while more than 100 yards distant, and by the use of ordinary care could have avoided a collision, but that instead of remaining in the road, and instead of driving to the right, as is the custom, he drove his car to the left, and turned out of the road, and ran into and against appellee’s car, causing the damage to appellee’s car complained of.

Cook and Eicke and Bray filed separate answers. Each answered by general denial,' and each specially denied that Cook was the agent of the Auto Sales Company. The answers alleged that there was an agreement between Cook and the Auto Sales Company, whereby Cook was to have the use of one of the company’s demonstrating cars within such territory as was not covered by other agents, Cook not to receive a salary, but a commission upon sales effected by him; that the company had an agent at Trent, and Cook had no authority or right to demonstrate or sell ears for the company at Trent; that Cook used his own judgment and acted without restriction, except that he should not negotiate sales in such territory as was covered by the company’s regular agents. Cook alleged that on the day in question W. E. Cap-erton requested him to come to Trent to assist him in selling a newspaper plant, and that, having a prospective buyer for a car west of Trent, he went to Trent at such request, at his own volition, and not at the instance of the appellant company; that soon after starting from Trent, and while in the west part of the town, and while driving on the north side of the road, he saw appellee’s car approaching and keeping to the north side of the road, and was led to believe that the car was going on a road leading obliquely from the main road to the northeast and did not conclude to the contrary until after said car had passed the fork of said road and continued in his direction, and yet on the north side of the road, and, seeing no movement of the approaching car to turn to its right, he, to avoid a collision, started to leave the north side of the road, and just as he was making that movement appellee’s wife, driving the approaching car, threw her car to the right and directly across the road in front of his car, causing such injuries to appellee’s car as occurred. Cook alleged that his movement to the south side of the road, after seeing that appellee’s car was holding to the north and smooth side, was for the purpose of accommodating appellee’s car to the smooth part of the road and himself passing over a less used part of the road. He denied that he was guilty of negligence and that the collision was caused by the negligence of appellee’s wife in the manner of handling her car.

Eicke and Bray further alleged that Cook had no authority from them to make sales in territory assigned to their agent at Trent; that they had nothing whatever to do with his trip to Taylor county, and knew nothing of it until after the occurrence; that 'Cook on that trip was on business matters pertaining to himself and not to them; that he was not acting for or representing them, but was then at Trent at the instance of Caperton in regard to other business matters.

Upon special issues submitted to them, the jury found that Cook was the agent of the Auto Sales Company in driving the automobile at the time it collided with plaintiff’s car; that the collision was caused by the negligence of Cook; that plaintiff’s wife was not guilty of negligence which contributed to cause the collision; the jury assessed the damages caused by the collision at $100.

The portions of the charge to which the assignments are directed are as follows:

“To enable the court to decide this case, the same is submitted to you on special issues, and you will answer the following questions: (1) Was the defendant E. S. Cook an agent of the defendant Auto Sales Company in driving the automobile of said company at the time it collided with plaintiff’s ear?”

The contentions are that the expression in the charge, “at the time it collided with plaintiff’s car,” states affirmatively that Cook’s' car did collide with the plaintiff’s car, conveying the idea to the jury that Cook’s car was the aggressive ear, and that the charge was upon the weight of the evidence; and that the expression in the charge, “to enable the court to decide this case,” indicates to the jury how the several issues presented shall be answered. We think the expressions quoted from the charge are not to be commended, and are subject to the criticisms made, but the question arises: Are they sufficient to require the reversal of the judgment? Cook in his answer states substantially that, supposing the plaintiff’s car would continue on the north side of the road, where he says it was, he left the north side and turned his car into a road leading straight forward west and to the south of that part of the road then occupied by plaintiff’s car “which was on the north curvature of the road.” In his testimony he says:

“I turned out where the cars struck. It was about 20 or 25 feet I think from where I turned out to the point where we collided. ⅜ * ⅜ I did turn out of the main beaten road.”

Cook was mistaken in his supposition that plaintiff’s wife would continue to drive her car on the north side, if she was on the north side at the time he turned his car to the south. We conclude that, both from his pleading and his testimony, Cook was acting on "what he supposed plaintiff’s wife would do, and that, while he thought to give her the smooth road, “because she was a lady,” he did just what was the dangerous and the wrong thing to do. While the assignment and the propositions thereunder point out technical errors, they are not such as, under the pleadings and proof, should reverse the case. The assignment is overruled.

The trial court gave the following charge:

“You are further charged, as a part of the law of this case, that, when there are no other vehicles which can be interfered with, one is at liberty to drive on any part of the highway he may choose, or may find most convenient or agreeable for the purpose of travel; but, on meeting a vehicle, it is the duty of each driver to turn to the right, unless there are obstacles on the right side of the road, or from the circumstances of the meeting reasonable prudence should demand a turn to left. Unless you find and believe from the evidence that there were obstacles which prevented his turning to the right, or from the circumstances which appeared to him at the time of the meeting the defendant E. S. Cook acted as a reasonably prudent person should have done in turning to the left, then you are charged that it was his duty to use greater care to avoid a collision than if he had turned to the right side.”

The court, in connection with this subdivision of the charge, defined negligence. The second assignment complains of the charge and asserts the proposition that:

“Where one automobile is being driven west along the north side of a public road running east and west, approaching a point where a generally traveled track leaves such public road for a short distance in a curvature or detour to the north, it is not the duty, as a matter of law, of the driver of such west-bound car to drive off of such public road and onto such generally traveled detour, in order to turn to the right of another car approaching from the west upon such detour or curvature.”

The criticism is not directed to the latter part of the charge, where the jury is told that it was then Cook’s duty to use greater care than if he turned to the right. The court does not tell the jury in the charge that it is the duty of the west-bound car “to drive off of such public road and onto such generally traveled detour”; but, the evidence showing that it is the custom and rule of the road to turn to the right, it was Cook’s duty to have done so, unless obstacles would prevent his doing so, or unless prudence would demand his turning to the left, leaving the jury to determine hisi duty under the facts as the jury would find the facts to be. The charge is not subject to the eriti: cism made. The assignment is overruled.

Neither Cook’s pleading nor his proof shows the collision to have been a mere unavoidable accident, and it is not reversible error to refuse to charge the jury upon the law of’ accident as submitted in the third assignment.

As to the fourth assignment, our view is sufficiently .expressed upon this ground in passing upon the first assignment.

The fifth assignment is directed to remarks of counsel in discussing the charge of the court and applying the evidence to issues therein presented. We have expressed our view of the charge in discussing a previous assignment, and believe the fifth does not present reversible error.

Appellants Eicke and Bray requested a peremptory charge in their favor, and the court’s refusal to give it is made the ground of the sixth assignment. It is claimed, substantially, under this assignment, that while Cook was permitted to use one of their demonstrating cars in making sales in territory in which he could operate, he was at the time of the accident at Trent, a territory in which he was not authorized to demonstrate their cars, or otherwise act as their agent, and at the time was acting independently o£ his agency and in no wise representing them, and, the act being a tort, they are not responsible. It is further claimed that, to make appellants Eieke and Bray liable, it must appear that at the very time of the accident Cook was going directly to, or returning from an appointment with, or was actually demonstrating his car to, a prospective purchaser. Cook stated that one of his purposes in going on the trip he made on the day of the accident was to demonstrate and sell a car to Southworth, who lived about 1½ miles from Trent, near the Nolan county line, and that, as to territory, he could have made the Southworth sale. Eieke testified that he did not know just where Southworth lived, but that, if he lived within 1 ⅛ miles of Trent he was out of the territory in which Cook was authorized to demonstrate or sell cars for the Auto Sales Company.

Under the proof the jury could say that, under the agreement of agency between Cook and the Auto Sales Company, and as to territory, Cook was authorized to demonstrate and sell a car to Southworth. Cook, in demonstrating his ear to Southworth on the day of the accident, took Southworth to Trent and as far east as Merkel, and brought him back. But at the time of the accident Southworth was not with Cook, and /Cook was not then demonstrating the car to South-worth, nor, so far as the proof shows, to any one else. While Cook was then driving the demonstrating car belonging to the Auto Sales Company, he was not then actually demonstrating the car to a prospective purchaser. He was returning to Sweetwater, from a trip in which he had demonstrated the car in a territory in which, and to a prospective purchaser to whom, Cook said he could make the demonstration and sale. It is our opinion that, in order to make the Auto Sales Company liable, it would not be necessary that Cook, at the very time of the accident should then he actually demonstrating the car to a prospective purchaser, or be in a direct route in going to or returning from the place where the demonstration is to be made or was made. To make a' demonstration of the car to Southworth, as Cook said he had the right to do, he went to South-worth’s home, and took him to Merkel. He was on his return to Sweetwater from a trip on which he had demonstrated the car to Southworth, and was then driving the car given him by the Auto Sales Company for the purpose of making demonstrations to a proposed purchaser.

There is some evidence in the record tending to show that Cook was more or less an independent salesman of cars represented by the Auto Sales Company, and while so acting could go when and where he pleased; but even then, when so acting, he was authorized under the arrangement with the Auto Sales Company to use their demonstration cars. If we consider Cook at the time of the accident an independent salesman of the ear he was then driving, it still appears from the record that the Auto Sales Company owned the car, that it was let to Cook for making the demonstration, and that, had a sale been made to Southworth, it would have been a sale of a car belonging to the Auto Sales Company and in which sale Cook would have received a commission from them, and the sale would have been to,the benefit of each. From the testimony shown in the record, too voluminous to quote here, we believe that the evidence is sufficient to justify the court in submitting the question of Cook’s agency to the jury, and that it was not error to refuse to give the peremptory charge requested.

Eieke and Bray requested the court to submit to the jury the following:

“Was the defendant, at the 'time of the accident, acting for the Auto Sales Company in the matters of their business?”

The refusal of the court to submit the question is made the basis of appellant’s seventh ground of error. The question, if submitted, was as to an evidentiary fact only, would not have determined the question of the agency of Cook, and would have tended only to a confusion of the main issue, that of agency of Cook; Cook’s agency under the facts pleaded and proved not depending solely upon the question as to whether Cook was acting in the matter of the company’s business. Suppose the jury had answered the question either “yes” or “no,” the answer would not have determined the main question at issue. It would still have been confused with the undisputed facts discussed under the sixth assignment. We do not believe our holding in this and the preceding assignment to be in conflict with G., H. & S. A. Ry. Co. v. Currie et al., 100 Tex. 136, 96 S. W. 1073, 10 L. R. A. (N. S.) 367, to which we are referred, where it was held that where one em-ployé in a railroad round house, while using compressed air in the line of his duty, in sport turned it on a subordinate, causing his death, and in which it was held that the railroad company was not liable. We believe that the use of the car by Cook at -the time of the accident comes more nearly under the facts of Prince v. Taylor, 171 S. W. 826, and the cases referred to in discussing the motion for rehearing.

What we have said in discussing the sixth assignment applies to the eighth.

Justice HIGGINS limits his concurrence to the result.

Finding no reversible error, the case is affirmed as to all of the appellants.
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author: PHIDDIPS, C. J.

text:
    CAIN v. BONNER et al.
    (No. 2477.)
    (Supreme Court of Texas.
    May 9, 1917.)
    1. Usury <®=a77 — Antecedent Debt.
    An. antecedent indebtedness is not affected by subsequent usurious renewals or extensions where the transactions are distinct.
    [Ed. Note. — For other cases, see Usury, Cent. Dig. §§ 153-156,]
    2. Dimitation of Actions <@=>192(1) — Usury —CONTBACTS ENFORCEABLE.
    Where mechanic’s lien contract originally valid was extended by agreement for usurious interest, the suit brought after expiration of limitations as to the original contract but within the period as to the renewals was upon the renewal contract.
    [Ed. Note. — For other cases, see Dimitation Of Actions, Cent. Dig. § 699.]
    3. USURY <3=s>100(2) — CONTBACTS Enforoeable — Application of Interest to Principal.
    . In suit on the contract, the usurious interest collected should be applied to reduction of the principal.
    [Ed. Note. — For other cases, see Usury, Cent. Dig. §§ 225, 228, 233.]
    4. Appeal and Eeeoe <⅞=»747(1) — Scope of Review.
    Cross-assignments of error by parties who did not appeal are entitled to consideration.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig; §§ 3053-3056.]
    5. Appeal and Eeeoe <©=>1087 — Scope of Review — Record—Sufficiency.
    Where disposition by the Court of Civil Appeals of cross-assignments by parties who did not appeal to such court was not made the subject of a writ of error, the Supreme Court need not consider it.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4281, 4286.]
    Error to Court of Civil Appeals of Sixth. Supreme Judicial District.
    Suit by W. 6. Cain against Charles T. Bonner and others. From a judgment (149 S. W. 702) reversing a judgment of the trial court for defendants, plaintiff brings error.
    Affirmed.
    Cone Johnson, of Tyler, and Ben B. Cain, of Dallas, for plaintiff in error. Dasseter & Mc-Ilwaine, of Tyler, for defendants in error.
   PHIDDIPS, C. J.

As originally brought, this suit was by W. G. Cain for a balance due, with interest, upon a mechanics lien contract in the amount of $3,000.00 executed by Charles T. Bonner and wife in favor of one James. Bothwell. It was instituted more than four years after the maturity of the contract. Special exceptions urged by the Bonners to the petition on the ground of limitation were sustained. Thereupon, the plaintiff, on February 22, 1911,. by an amended petition set up respective written acknowledgments and renewals of the debt executed by the Bonners in his favor, and also its acknowledgment by Charles T. Bonner through a letter.

The original contract given Bothwell provided for interest at the conventional rate from its maturity. The renewal obligations given plaintiff stipulated for the payment of interest at a usurious rate. The defense of usury was made. The recovery, as a penalty, of double the amount of usurious interest paid the plaintiff was also sought by the defendants. The judgment of the trial court denied the plaintiff any recovery. On his .appeal the Court of Civil Appeals rendered judgment in his favor for a balance, ascertained by applying as a credit the interest paid him under the usurious renewal obligations to the amount due upon the contract when he acquired it, with foreclosure of the mechanics lien.

It is urged by the plaintiff that his suit was upon the original contract, which was free from usury, and that he was therefore entitled to recover thereon, principal and interest, unaffected by the usurious interest collected by him upon the renewal obligations. This contention presents the question in the case.

A contract, originally valid, is not rendered invalid by a subsequent agreement. It is therefore recognized that antecedent indebtedness is not affected by subsequent usurious renewals or extensions where the transactions are distinct. Webb on Usury, § 307; Cousins v. Grey, 60 Tex. 346; Krause v. Pope, 78 Tex. 478, 14 S. W. 616; Ham v. Savings Ass’n, 95 Tex. 79, 65 S. W. 176. This simply means that the holder of an indebtedness is not obliged to declare upon a contract of renewal not accepted in payment of the debt; that such a usurious renewal is no defense to an originally valid debt; and that the holder of such a debt may declare, and, where not subject to other defenses, recover upon it, notwithstanding the usurious renewal. The rule has no application, and can hhve none, to cases where; on account of limitation, there is, without the renewal, no maintainable cause of action, and it is made for that reason the sole foundation of the suit.

When in an action for debt a new promise is relied upon to avoid a plea of limitation, such promise, whether made before or after the bar is complete, constitutes the cause of action and must be declared upon for a recovery. Since the statute, when pleaded, makes a recovery upon the barred debt impossible, reliance upon the new promise to overcome limitation necessarily makes of it the cause of action. Otherwise there is no cause of action that may be enforced.

This has been the holding of the court since Coles v. Kelsey, 2 Tex. 542, 447 Am. Dec. 661. It is the settled law of the State; and there can be no occasion now for opening the question of whether the new promise is to be regarded as only a means of continuing the original indebtedness in life and vigor.

The renewal obligations were set up by the plaintiff in his amended petition for the evident purpose of avoiding the limitation to which the original contract was subject, and for which reasons the defendants’ exceptions to the declaration upon it in the original petition had been sustained. There could have been no other reason for pleading them. The right of recovery, according to the amended petition, was based upon them and the letter. With a plea of limitation, to the suit on the contract properly sustained, the plaintiff was left without any maintainable cause of action upon it. If the renewal agreements and the letter were not asserted as a means of enforcing his demand, and as therefore constituting a new cause of action, his suit was already at an end.

Having declared upon the renewal agreements, the plaintiff’s right of recovery was measured by them. He could not avail himself of their benefits without subjecting his action to the defenses which they afforded. The ordinary principles of estoppel would deny to him the appropriation of only their favorable results. With the suit resting upon them, tlieir usurious character was necessarily an available defense. It was therefore proper to apply the usurious interest collected by the plaintiff under them to the reduction of the principal of his debt, as was done by the Court of Ciyil Appeals in its judgment.

Cousins v. Grey; Krause y. I’ope, and Harn v. Savings Ass’n, supra, relied upon by the plaintiff in error, were all cases essentially different in character from this one.

In each of them the cause of action, in whole or in part, was upon a contract or contracts of indebtedness which were untainted by usury, and to which the defense of limitation was either not available or was not pleaded. In such state of case, under the rule already noted, recovery under the original contract, unaffected by collateral or subsequent usurious agreements, was permissible.

In Cousins v. Grey, the usurious notes were set up by the defendant. The plaintiff’s action was upon a note not usurious. It does not appear that it was barred by limitation when the action was filed. There is no mention of limitation in the case. The usurious notes were not only not relied upon by the plaintiff for the purpose of avoiding limitation, as is the ease here, but they were not declared upon by him at all.

In Harn v. Savings Ass’n, the action was upon an original note not usurious, and upon a note given in extension of it which was usurious. No question of limitation was in the case. It was properly held that recovery could be had upon the note as unimpaired by the usurious renewal.

Krause v. Pope, upon which stress is laid, was a suit upon two notes not usurious and upon subsequently executed renewal agreements, the original of which provided for usurious interest, and by which the others were affected. The opinion of Associate Justice Henry does not disclose whether the defense of limitation was urged against the cause of action asserted upon the notes, though it appears that they were barred when the action was filed. The writer has examined the original record to ascertain its state in this regard. Limitation was pleaded by John Hancock, to whom the notes were originally given and who was joined as a defendant, but the plaintiff dismissed him from the suit. It was not pleaded by the maker of the notes, nor by any other defendant. To be available, limitation must be specially urged either by exception or plea. With the plaintiff asserting a cause of action upon the notes, unchallenged by limitation, he was, of course, entitled to judgment upon them unaffected by the usurious renewals. The question presented by this case was not involved.

Certain rulings by the trial court adverse to the defendants were made by them the subject of cross assignments of error in the Court of Civil Appeals. We think they were entitled to have them there considered, though they did not prosecute an appeal. Duren v. Railway Co., 86 Tex. 287, 24 S. W. 258; Carroll v. Carroll, 20 Tex. 732; Brown v. Hudson, 14 Tex. Civ. App. 605, 38 S. W. 653. But a writ of error was not applied for on account of the Court of Civil Appeals’ disposition of these rulings; and we are therefore not called upon to determine the questions which they involve.

The judgment of the Court of Civil Appeals is affirmed.
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