author: FLY, O. J.

text:
    HAMBLETON v. SOUTHWEST TEXAS BAPTIST HOSPITAL et al.
    (No. 5374.)
    (Court of Civil Appeals of Texas. San Antonio.
    Dec. 16, 1914.
    On Motion for Rehearing, Jan. 20, 1915.)
    1. Appeal and Error (§ 916) — Review— Presumptions.
    Where the original answer, which alone set up defendant’s plea of privilege, was not in the record, it will be presumed that the plea was properly denied.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 3699-3705; Dec. Dig. § 916.]
    2. Continuance (§ 24) — Right to — Cumulative Testimony.
    A party’s first application for continuance cannot be denied because the evidence of the absent witness was cumulative.
    [Ed. Note. — Eor other cases, see Continuance, Cent. Dig. § 72; Dec. Dig. § 24.]
    3. Continuance (§ 47) — Application—Opposition.
    Testimony that the absent witness had stated that he would not swear to the facts set forth in the first application for continuance was not admissible.
    [Ed. Note. — Eor other eases, see Continuance, Cent. Dig. § 141; Dec. Dig. § 47.]
    4. Trusts (§ 43) — Parol Evidence — Admis-SIBIILTY.
    Where it was sought to ingraft a parol trust on a conveyance of land, evidence of declarations of the deceased grantor is not inadmissible because the witness could neither state the exact language of the grantor, nor give the exact dates.
    [Ed. Note. — Eor other cases, see Trusts, Cent. Dig. §§ 62-65; Dec.'Dig. § 43.]
    5. Trusts (§ 43) — Declarations—Hearsay.
    The grantor being dead, such evidence was not hearsay.
    [Ed. Note. — Eor other cases, see Trusts, Cent. Dig. §§ 62-65; Dec. Dig. § 43.]
    6. Evidence (§ 155) —Admissibility — Admission Because of Admission of Other Evidence.
    Where the question of a parol trust was in issue, one party, having introduced evidence of declaration of the deceased grantor, cannot complain that the other introduced similar evidence.
    [Ed. Note. — Eor other cases, see Evidence. Cent. Dig. §§ 444-458, 2148; Dec. Dig. § 155.]
    7. Trusts (§ 43) — Establishment of Trust —Evidence—Admissibility.
    Evidence of the feelings of the grantor to her granddaughters is admissible, where it is sought to establish a parol trust for their benefit upon land conveyed to a daughter.
    [Ed. Note. — Eor other cases, see Trusts, Cent. Dig. §§ 62-65; Dee. Dig. § 43.]
    8. Trusts (§ 44) — Parol Trusts — Establishment.
    While a parol trust may be ingrafted upon a deed, absolute on its face, the evidence must be clear and satisfactory.
    [Ed. Note. — For other cases, see Trusts, Cent. Dig. §§ 66-68; Dec. Dig. § 44.]
    9. Trusts (§ 44) — Parol Trusts — Evidence —Insufficiency.
    Evidence held insufficient to establish a parol trust in favor of appellees upon land conveyed to another.
    [Ed. Note. — For other cases, see Trusts, Cent. Dig. §§ 66-68; Dec. Dig. § 44.]
    10. Trusts (§ 43) — Evidence—Admissibility.
    In a suit to establish a parol trust upon land apparently conveyed absolutely, evidence of declarations of the grantor not made in the grantee’s presence is admissible.
    [Ed. Note. — For other cases, see Trusts, Cent. Dig. §§ 62-65; Dec. Dig. § 43.]
    11. Trusts (§ 43) — Parol Trusts — Evidence.
    Evidence of the grantor’s intention, at a time many years before conveyance of land, is admissible to show that a conveyance absolute on its face was subject to parol trust.
    [Ed. Note. — Eor other cases, see Trusts, Cent. Dig. §§ 62-65; Dec. Dig. § 43.]
    12. Witnesses (§ 248) — Responsiveness of Testimony.
    Testimony not responsive to the questions should be excluded.
    [Ed. Note. — Eor other cases, see Witnesses, Cent. Dig. §§ 861-863; Dec. Dig. § 248.]
    13. Trusts (§ 43) — Parol Trusts — Evidence.
    Evidence of what a grantee said she would do with land is not admissible to charge the property with a parol trust.
    [Ed. Note. — Eor other cases, see Trusts, Cent. Dig. §§ 62-65; Dec. Dig. § 43.]
    14. Trusts (§ 43) — Parol Trusts — Evidence.
    Testimony of the payment of bills of the grantee in New York and Hot Springs is not relevant to claim that the land was subject to a parol trust. ,
    [Ed. Note. — Eor other cases, see Trusts, Cent. Dig. §§ 62-65; Dec. Dig. § 43.]

      15. Trusts (§ 43) — Parol Trusts — Evidence.
    Evidence of the property of the alleged beneficiaries is inadmissible in a proceeding to establish a parol trust.
    [Ed. Note. — Eor other cases, see Trusts, Cent. Dig. §§ 62-65; Dec. Dig. § 43.]
    16. Trusts (§ 43) — Parol Trusts — Evidence.
    While evidence of declarations by the grantor before conveyance is admissible to establish a parol trust, declarations after conveyance should be excluded.
    [Ed. Note. — Eor other cases, see Trusts, Cent. Dig. §§ 62-65; Dec. Dig. § 43.]
    17. Trusts (§ 43) — Parol Trusts — Evidence.
    .Evidence that a grantor had supported the grantee is immaterial in a proceeding to charge the property conveyed with parol trust in favor of other objects of the grantor’s bounty.
    [Ed. Note. — Eor other cases, see Trusts, Cent. Dig. §§ 62-65; Dec. Dig. § 43.]
    18. Evidence (§ 471) — Parol Trusts — Opinion Evidence.
    In a suit to establish a parol trust, where a medical expert testified as to the feebleness of the grantor after the conveyance, and that the grantee took charge of everything, testimony by another witness that the grantor had control of the property up to the time of her death is inadmissible, being the mere conclusion of the witness.
    [Ed. Note. — Eor other cases, see Evidence, Cent. Dig. §§ 2149-2185; Dee. Dig. § 471; Witnesses, Cent. Dig. § 835.]
    19. Trusts (§ 43) — Parol Trusts — Evidence.
    Evidence that the grantor made presents to one of the alleged beneficiaries is inadmissible to establish a parol trust upon a conveyance to another absolute on its face.
    [Ed. Note. — For other cases, see Trusts, Cent. Dig. §§ 62-65; Dec. Dig. § 43.]
    20. Trusts (§ 43) — Evidence to Establish —Parol Trust.
    Where the father of one of the alleged beneficiaries, who was managing her interests, wrote a letter showing that she asserted no parol trust in her behalf, such letter is admissible to rebut her claim of a trust.
    [Ed. Note. — For other cases, see Trusts, Cent. Dig. §§ 62-65; Dec. Dig. § 43.]
    21. Trial (§ 120) — Argument oe Counsel. It is improper for counsel to claim that a
    witness made statements which he did not in fact make.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 285-287; Dec. Dig. § 120.]
    22. Trial (§ 25) — Right to Open and Close.
    The burden of proof is upon one seeking to establish a parol trust upon land conveyed by deed, absolute on its face, so that such party was entitled to open and close.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 44-75; Dec. Dig. § 25.]
    On Motion for Rehearing.
    23. Trusts (§ 43) — Parol Trusts — Establishment.
    Whether a conveyance was incumbered by a parol trust depends upon the intention of the grantor at the time of the conveyance.
    [Ed. Note. — For other cases, see Trusts, Cent. Dig. §§ 62-65; Dec. Dig. § 43.]
    Appeal from District Court, Bexar County; R. B. Minor, Judge.
    Action by the Southwest Texas Baptist Hospital against Imogene T. Hambleton and others. From a judgment for plaintiff the defendant named appeals.
    Affirmed in part and reversed and remanded in part.
    Moody & Boyles, of Houston, for appellant. W. W. King, of San Antonio, for appellees.

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

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

   FLY, O. J.

This suit was instituted by the Southwest Texas Baptist Hospital, which will hereinafter be designated as the Hospital, against Dorothea Dignowity and Hallie B. Dignowity, to remove cloud from the title to a block of land in the city of San Antonio which the Hospital had purchased from appellant. It was alleged that appellant derived her title to the land from h,er mother, Amanda J. Dignowity. The two Dignowitys, defendants in the court below and the real appellees in this court, although the Hospital is joined with them as an appellee, answered that the Hospital had acquired the property in controversy by warranty deed from appellant on March 28,1913, and had agreed to pay therefor the sum of $37,500, of which $10,000 was in cash, and for the balance five promissory notes in the sums of $5,500 each, due respectively in one, two, three, four and five years, were executed by the Hospital; that appellant acquired title to the property by deeds from her mother, Amanda J. Dignowity; that at the time the deeds were executed it was agreed by and between appellant and her mother that appellant should hold three corner lots out of said block for the defendants, herein designated appellees, and Helen I. Hamble-ton; that on December 26, 1898, Ama'nda J. Dignowity executed and acknowledged four deeds, one to each of her granddaughters, •appellees being two of them, conveying the four corner lots of the block to them; that, with the exception of the one to Florence J. Sullivan, neither of the deeds was ever delivered; that on January 16, 1907, the deed to Florence was delivered, and on the same day Amanda J. Dignowity executed a deed to appellant conveying to her all of the block, except that part conveyed to Florence; that the deed was made in trust to appellant, so far as the three lots belonging to appellees and Helen I. Beavens were concerned, and the power to sell the same was given to appellant, the proceeds from the sale to be paid to the owners of the same, and that the trust was accepted by appellant and was recognized by her for a long time after the death of her mother, and she accounted to said Florence J. Sullivan, formerly Dignowity, and Helen I. Beavens, formerly Hambleton, for their interest in the trust property, but refused to recognize the trust in favor of ap-pellees ; that the Hospital had notice of the trust when it bought the property; that the interest of each of the appellees was of -the value of $6,000. It was alleged that appellant had no property except the vendor lien notes, and appellees prayed that a writ of injunction be issued to require tbe notes to be deposited in tbe registry of tbe court, and that they baye judgment for $6,000 eaeb, and the same be made a lien on tbe property in controversy.

Appellant filed a plea of privilege to be sued in Harris county, which was overruled before tbe amended answer was filed. Tbe original answer upon which appellant was brought into court does not appear in the record,’ and we do not, of course, know what it contained. Its allegations may have been sufficient to justify tbe action of the court in overruling tbe plea of privilege. Tbe plea of privilege was filed on October 7, 1913, was overruled on November 10, 1913, and tbe second amended answer, tbe only one contained in tbe record, was filed on March 3, 1914. Tbe plea of privilege was never renewed after it was overruled. Tbe answer upon which appellant was made a party may have stated matters which made it proper to sue appellant in Bexar county. There was no allegation of fraud in any of tbe allegations in order to secure venue in that county. We must presume that the court was justified by tbe allegations of tbe answer in overruling tbe plea of privilege.

Tbe second assignment of error is sustained. Tbe application for continuance was tbe first and should have been granted. The fact that tbe evidence of tbe absent witness may have been cumulative should not have been considered. Tbe testimony of the absent witness may have produced a better impression upon the jury than that of tbe other witnesses. Tbe statute does not contenyplate tbe refusal of tbe first application for a continuance because there are others who will swear to tbe same facts as would the absent witness, for it provided:

“That on a first application for continuance, it shall not be necessary to show that the absent testimony cannot be procured from any other source.”

Tbe application for a continuance was in strict compliance with tbe statutes, and should have been granted. Tbe testimony that tbe absent witness bad told one of tbe appellees that be would not swear to tbe facts stated in tbe application should not have been admitted. We cannot say that tbe evidence of tbe witness might not have produced a different result.

Tbe court did not err in refusing to strike out tbe testimony of Mrs. Purkiss concerning statements made to her by Mrs. Amanda J. Dignowity. Tbe fact that she could not fix the dates on which tbe statements were made merely went to tbe weight of tbe testimony, and not its competency. The witness stated tbe substance of tbe statements, without pretending to state tbe exact language, and that was not a valid objection to her testimony. Tbe evidence was not hearsay; Mrs. Dignowity being dead. Smith v. McElyea, 68 Tex. 70, 3 S. W. 258. The declarations were made before tbe deed to appellant was executed. Tbe witness fixed the time of one conversation a few days before tbe death of Mrs, Dignowity, and before she executed tbe deed. Appellant introduced statements made by Mrs. Dignowity, and cannot object to proof of statements by appellees. Smith v. McElyea, herein cited.

Tbe court did not err in permitting testimony as to bow Mrs. Dignowity felt towards her granddaughters. It was a circumstance that with others might tend to show that she did not intend to give all tbe property to her daughter. It is the established rule in Texas that a parol trust may be ingrafted upon a deed absolute upon its face. But it is also tbe rule, wherever such practice is permitted, that tbe evidence establishing such trust must be clear and satisfactory. Mead v. Randolph, 8 Tex. 191; Hall v. Layton, 16 Tex. 278; Markham v. Carothers, 47 Tex. 28; Agricultural Association v. Brewster, 51 Tex. 262; King v. Gilleland, 60 Tex, 271; Neyland v. Bendy, 69 Tex. 713, 7 S. W. 497; Goodrich v. Hicks, 19 Tex. Civ. App. 528, 48 S. W. 798; Kelly v. Short, 75 S. W. 877; Western Assur. Co. v. Hillyer-Deutseh-Jarratt Co., 167 S. W. 816.

Tbe testimony offered by appellees was all circumstantial, such as the execution of deeds to them by Mrs. Amanda J. Dignowity, her declarations, most of them some time before tbe deed to appellant was executed, and tbe feelings of their grandmother toward them. Tbe only direct testimony as to what occurred at the time tbe deed was executed was offered by appellant, which tended to show that there was no trust ingrafted on the deeds by tbe grantor. Mrs. Florence J. Sullivan, a granddaughter of tbe grantor, swore that tbe latter said at tbe time tbe land was conveyed to appellant: “Florence, I give you this with my love and affection. Tbe other is for Emma.” She further swore that her grandmother said “she wanted tbe corner lot for me and tbe rest of the property for Mrs. Hambleton.” Tbe witness stated that at tbe time tbe deeds to appellant were executed tbe grantor destroyed tbe deeds to appellees, which bad been executed by her a long time before, and which bad never been delivered. Mrs. Sullivan swore positively that Mrs. Amanda J. Dignowity said nothing about a part of tbe property being held in trust for appellees. Those present at tbe time of tbe execution of tbe deeds, and also at tbe time they were acknowledged, were Ed. Dignowity, A. G. McNeill, and Mrs. Sullivan. Mrs. Hambleton was only present when tbe acknowledgments were taken. Mc-Neill, in so far as be remembered tbe facts, corroborated Mrs. Sullivan. Tbe evidence clearly showed that at one time Mrs. Amanda Dignowity desired to give tbe four corner lots to her granddaughters, one lot to each of them, and she executed deeds to that effect, but delivered none but tbe one to Mrs. Sullivan. Tbe facts offered by appellant indicated tliat slie changed her mind and concluded to give the property to her daughter, Mrs. Hambleton.

Parol trusts are allowed to he ingrafted on deeds absolute on their faces, in order to protect those entitled to an estate from the cupidity and dishonesty of trustees; yet, while it is permitted, the law recognizes the danger 'that lurks in such practice, and requires a higher degree of evidence than in ordinary cases. As said by the Supreme Court in King v. Gilleland, herein cited:

“Perhaps there is no fact which, in the trial of civil causes, is required to be so satisfactorily proved as that which ingrafts a parol trust upon the legal title. * * * Whilst it is not necessary that it should he established beyond a reasonable doubt, nothing must be left to conjecture, nor must presumptions be indulged which are not the usual and almost necessary deductions from the facts proved.”

That rule is firmly established in Texas. The testimony in this case, while showing that Mrs. Amanda J. Dignowity at one time contemplated giving appellees a portion of the land, does not clearly and satisfactorily show that she had such intention at the time of executing the deeds to appellant, but the only evidence offered of her intention at that time tended to show that she wanted her daughter to have all of the land, except the portion she conveyed to Mrs. Sullivan.

It was shown without contradiction that at the time of the execution of the deeds to appellant Mrs. Amanda J. Dignowity handed one of the four deeds she had executed to her four granddaughters • to Mrs. Sullivan, and then placed those to appellees in the fire. Why should she provide for one by a deed and then ingraft a parol trust on an absolute deed to her daughter? She had the deeds to appellees already executed, and it does not seem reasonable, if she wanted them to have a part of the land, that she would destroy the deeds and open a field for strife among her children by leaving nothing in writing to indicate her wishes. It seems incredible that she should have employed an attorney to prepare the deeds and never let him know there was a secret trust in favor of her granddaughters. The facts and circumstances seem to indicate a desire on her part to give her daughter and granddaughter, who were with her, the whole of the land. We do not feel disposed, however, to render judgment, but give appellees an opportunity to strengthen their case if they can.

The eleventh, twelfth, and thirteenth assignments of error complain of the admission of testimony as to what Mrs. Amanda J. Dignowity stated in 1896 and 1897. The objections urged against the testimony are not tenable. Davis v. Davis, 44 Tex. Civ. App. 238, 98 S. W. 198. Appellees were not claiming as heirs, but as beneficiaries in a trust created by Mrs. Amanda Dignowity. There is no merit in the objection to the testimony that the statements of the grantor were made when appellant was not present, and they were admissible. The cases cited by appellant are not in point.

While there is very little weight to be- given to testimony showing that Mrs. Amanda Dignowity stated many years before her death that she wanted her property divided in a certain way and produced a little sketch showing such division, still it was admissible to show that she so intended dividing her property for many years. No matter, however, what her intention may have been at that distant period, it can have no probative force, unless it be shown that she had such intention and expressed it at the time she conveyed the land to her daughter. Such intention .must have entered into and have become a part of the deed of conveyance. That she had changed her mind at one time is apparent from the fact that she, on February 23, 1903, four years before her death, made a will in which she devised the entire property to appellant, and required the payment of ?1,000 to each of the appellees, and afterwards destroyed the deed to appellees, and conveyed the property to her daughter. As said in the Ohio case of Russell v. Bruer, 64 Ohio St. 1, 59 N. E. 740:

“There is in the record an utter absence of any allegations or proof of any act or declaration by Mrs. Johnson, contemporaneous with the deeds, clearly and unqualifiedly creating such a trust, and defining its terms and conditions.”

We sustain the sixteenth assignment of error. The evidence of James V. Dignowity in regard to the statements of appellant was not responsive to the questions asked him, and his testimony should have been excluded. He was asked as to what appellant had said about the disposition of the property made by Mrs. Amanda J. Dignowity, and he answered as to statements made by appellant as to what she would do with the property.

The evidence objected to through the seventeenth assignment of error was not relevant to the issues in the case. What appellant said as to what she would do with the property did not tend to show' that a parol trust existed. The existence of a parol trust depends on what was said and done by Mrs. Amanda Dignowity at the time of the execution and delivery of the deeds to appellant. Pitts v. Weakley, 155 Mo. 109, 55 S. W. 1055.

What the payment of the bills of appellant in New York and Hot Springs had to do with the issue in this case does not appear, unless it was to create a prejudice against appellant in the minds of the jury. It certainly did not in any way tend to show the existence of a trust in favor of appellees.

The twenty-second, twenty-third, twenty-fourth and twenty-fifth assignments of error are sustained. The poverty of appellees could not cast any light on the issue as to whether a trust was ingrafted on appellant’s title to the land.

The testimony of J, F. Hines as to' statements made by Mrs. Amanda Dignowity before the deeds to appellant were executed would be permissible, but no statements made by her after she had conveyed the land should have been admitted. The testimony complained of in the twenty-eighth and twenty-ninth assignments of error was as to statements of Mrs. Amanda Dignowity after the execution of the deeds and was improper, and we sustain those assignments. Appellees cite Smith v. McElyea, 68 Tex. 70, 3 S. W. 258, as authority for permitting statements of a grantor affecting the title to land after the execution of the deed, but the decision is authority for exactly the opposite doctrine. The court said:

“The rights of the parties were fixed when the deed was made to the trustee, and the general rule, which rejects declarations made by a grantor after he has parted with title, when introduced for the purpose of affecting the title or right fixed by the deed, must have application in this ease.”

That such testimony was admitted in that case by the trial judge, was the only ground upon which the judgment was reversed. The other decisions cited by appellees are to the same effect. As said in Wilson v. Simpson, 80 Tex. 279, 16 S. W. 40:

“The declarations of John Payne in disparagement of appellants’ title would have been clearly inadmissible under well-recognized rules if they had been made after the title had passed from him.”

When the deeds were delivered to appellant by her mother, the possession of the property passed to her. The deed went into effect upon its delivery. Mrs. Amanda Dig-nowity was sick and very feeble for 30 days before she died, and Dr. Hines swore that appellant was “looking after” the property. He said.

“Between the 16th of January (the date of the deed to Mrs. Hambleton) and the time when Mrs. Dignowity made the statement to me, I think Mrs. Hambleton was controlling the place between those dates; she was supervising, managing the cooking, attending to the servants, and everything.” De Garca v. Galvan, 55 Tex. 53.

The deeds made by Mrs. Amanda J. Dignowity to appellant in 1879, conveying to her land different from that in controversy, and the testimony of E. Dignowity about the land, should not have been admitted in evidence. The evidence did not tend to show that a trust was ingrafted upon the title to appellant. Neither did the fact that appellant and Mrs. Sullivan had been supported by Mrs. Amanda J. Dignowity have any materiality, except perhaps to show that they had nothing, which might cause the mother and grandmother to give them some property. Appellant, a widow, had no one upon whom she could rely for a support, while appellees had fathers or husbands to whom they could look for support and maintenance. The evidence did not tend to show a trust, but merely showed the great affection Mrs. Amanda Dig-nowity had for her daughter and granddaughter.

The thirty-third and thirty-fourth assignments are overruled.

The evidence of H. L. Dignowity to the effect that his mother had control of the property up to the time of her death was merely a conclusion of the witness, and one without any facts upon which to base it. Dr. Hines swore that for 30 days before .her death Mrs. Dignowity was helpless, and it was an absurd conclusion that she was controlling the property. The thirty-seventh and thirty-eighth assignments of error are sustained, as well as assignment 38%. The last is sustained because the evidence as to the plat was not shown to be the best evidence obtainable.

The thirty-ninth and fortieth assignments of error are overruled.

We fail to see the pertinency of the testimony of Hallie B. Dignowity as to various presents given her by her grandmother. It did not tend to prove the trust.

The forty-second assignment of error is overruled.

The letter written by Charles Dig-nowity to appellant should have been admitted in rebuttal of his testimony on the trial. The letter tended to show that at the time it was written his daughter, Dorothea, was not claiming any of the land. Charles Dignowity was the father of Dorothea, who was a minor, and acted for her in regard to the claim.

The forty-fourth assignment of error is sustained. The plat offered in evidence was not shown by competent testimony to have been in the hands of Mrs, Amanda Dig-nowity. What Mr. Guinn may have said about the plat to Hallie B. Dignowity was hearsay, and should have been excluded.

The forty-fifth assignment of error ds sustained. The bank checks given by Charles Dignowity to appellant did not tend to prove the existence of a trust.

The forty-ninth assignment of error is overruled, but the fiftieth, fifty-first, fifty-second and fifty-third assignments are sustained. Counsel should not have been permitted to claim that certain statements had been made by a witness, which he had not made.

The burden was upon appellees to establish the trust, and the court did not err in permitting the opening and closing arguments to be made by counsel for appel-lees.

Whatever may have been the intentions of Mrs. Amanda J. Dignowity at times previous to the execution of the deeds to appellant, the evidence does not satisfactorily show to this court that she conveyed the land in trust to appellant. She had executed a will prior to that time, and by its terms Mrs. Dignowity showed that she did not intend that appellees should have any of her land. The evidence of that will and the terms of the deed speak with much greater force than the frail memories of witnesses, a number of whom were not disinterested. If Mrs. Amanda Dignowity desired to give a lot each to appellees, it is very strange that she should have destroyed the deeds conveying a lot to each, and charged her absolute deed with a parol trust. She did not destroy the deed to Florence Sullivan, but delivered it to her, and why should she have done this and have resorted to a parol trust to give appellees a lot each? Her conduct in giving the deed to Florence, in destroying the- other deeds, and executing absolute deeds to appellant tended strongly to show that she had changer her mind as to giving appellees any land, as she had before that shown by her will, and had concluded-to give her daughter all the land except that given to Mrs. Sullivan.

That part of the judgment removing cloud from the title of the Southwest Texas Baptist Hospital will be affirmed, but in all other respects the judgment is reversed, and the cause remanded.

On Motion for Rehearing.

We desire to modify our former opinion as to requiring that proof of a trust could only be shown by what Mrs. Amanda J. Dignowity said at the very time of execution and delivery of the deeds, but hold that the intention of Mrs. Dignowity to provide for such a trust must be clearly and satisfactorily shown to have existed at the very time of execution and delivery of the deeds. No matter what her intention may have been prior to that time, unless it then existed, the trust was not created. Instructions as to a verdict being instructed by the lower court upon another trial, and other expressions as to the evidence, are withdrawn.

The motion for rehearing is overruled, with the exception of allowing the modifications referred to.


source: Caselaw Access Project

author: HENDRICKS, J.

license: Public Domain

text:
    DAVID et al. v. FIRST NAT. BANK OF CLAUDE.
    (No. 681.)

    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 28, 1914.
    On Motion for Rehearing, Jan. 9, 1915.)
    1. Attobney and Client (§ 93) — Atjthobity oe Attorney — Unauthorized Acts.
    An attorney cannot, by virtue of his office, bind his client by altering in a material par-' tieular a judgment recovered by the client; for the alteration, besides being contrary to public policy, would avoid the judgment.
    [Ed. Note. — For other cases, see Attorney and Client, Cent. Dig. §§ 175-179; Dec. Dig. § 93.]
    2. Attobney and Client (§ 103) — Acts of Attorney — Ratification.
    Where the attorney for a bank improperly inserted in a judgment recovered by the bank provisions as to interest, that the president of the bank did not upon first hearing of the alteration repudiate the authority of the attorney and notify the judgment debtor does not show ratification, though the attorney continued to negotiate with the debtor’s counsel concerning payment of the judgment.
    [Ed. Note. — For other eases, see Attorney and Client, Cent. Dig. § 154; Dec Dig. § 103.]
    3.Attorney and Client (fe 103) — Alteration of Judgment — Ratification.
    A bank’s suit on a judgment is not a ratification of an alteration in the judgment, where the bank first moved to expunge the alteration and restore the judgment to its original form.
    [Ed. Note. — For other cases, see Attorney and Client, Cent. Dig. § 154; Dec. Dig. § 103.]
    Appeal from District Court, Armstrong County; J. N. Browning, Judge.
    Action by the First National Bank of Claude against Thomas J. David and J. C. Esohle and another. From a judgment for plaintiff, the named defendants appeal.
    Affirmed.
    Synnott & Underwood, of Amarillo, for appellants. Moore & Moore, of Claude, and Gustavus & Jackson, of Amarillo, for ap-pellee.

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

       Writ of error pending in Supreme Court.

   HENDRICKS, J.

At the August term of the district court of Armstrong county, Tex., the First National Bank-of Claude, appellee herein, recovered a judgment of C. H. Harris,- Thomas J. David, and J. C. Eschle, a part of which we quote as follows:

“It is therefore ordered, adjudged, and decreed by the court that the said the First National Bank of Claude, a duly incorporated banking corporation, do have and recover of and from the said C. H. Harris, Thomas J. David, and J. C. Eschle, jointly and severally, the sum of $1,182.52, together with all costs in this behalf expended, for which let execution issue.”

The rendition of this judgment was in pursuance of an agreement between the attorneys for the bank and the attorneys for the judgment debtors, the consideration for which seems to have been the withdrawal of defenses, by the appellants herein, interposed against a promissory note (sued upon by the bank), and the suspension of execution against them upon the judgment until after the 1st day of January, 1914. Harris was the principal obligor, and David and Eschle were the sureties upon said note. While the note bore interest from maturity at the rate of 10 per cent, per annum, the judgment was silent as to any recitation of interest, and thereafter, and also after the adjournment of the court, the attorneys for the bank, and one attorney for one of the defendants in that cause, agreed that the following language: “And for interest from date at the rate of 10 per cent, per annum” — could be inserted in the judgment for the purpose of expressing the rate of interest indicated. This suit was instituted by the hank for the purpose of expunging the interlineation with reference to interest, upon the allegation that said bank was not a party to the alteration of said judgment, and did not authorize its attorneys to make an agreement for that purpose; and the court, upon a hearing, expunged the interlineation as mentioned, restoring the judgment to the original condition, as quoted by us.

The appellants, 'David and Esehle, assign error in different phases; that the judgment of the trial court in this cause is contrary to the weight and preponderance of the testimony, in that this record shows that the former judgment of that court, rendered on August 12, 1913, was materially changed by the bank’s counsel, acting within the scope of his authority, as attorney for the bank, and that said alteration was made for the benefit of said bank; and, said change having been made without any notice or knowledge or agreement upon the part of these appellants, the material alteration of said judgment was to render the same void. Appellants also assign that the judgment of the trial court is against the preponderance of the testimony, in that the evidence shows that the president and manager of the bank, “even if he did not know of said material alteration in the judgment at the time the same was made, learned of the same as early as December, and that at that time he did not repudiate such alteration, or the authority of his said attorney to act for him, and did not make any objection thereto until within one day of the time of the trial of said motion,” meaning the motion to expunge the surplusage from the judgment. Appellants cite numerous decisions for authority that acts of attorneys, while within the performance of the client’s business, come within the scope of the attorney’s authority, and are binding upon the client, which we think, however, are not applicable to the condition of this record; that is, as to the question of implied authority of the attorney by virtue of his employment.

Appellants cite no authority that the acts of an attorney (or of any other agent, for that matter) while in the performance of the client’s business, when destructive of a client’s rights, would be considered as within the implied authority of said attorney; none can be cited. The appellants assert the premise that, on account of the attorney of the appellee in this cause tampering with the public records, the judgment is void. Clearly, in order that a principal be bound for the acts of his agent, where the agent destroys the principal’s right of property, the act of the agent would have to be authorized by said principal, or participated in to such an extent as that the authority would be presumed or ratified. It cannot be said that an attorney has the implied authority to tamper with the public records (however innocently done) because the attorney thinks he is effectuating the client’s interest, and who in reality destroys the client’s cause of action, merged into the judgment; the assertion that the attorney had the implied authority to destroy that which he was authorized to create presents the fallacy of the proposition by its statement. The case of Boggess v. Harris, 90 Tex. 476, 39 S. W. 565, disclosed that an appellant’s attorney, without ‘ the knowledge of the trial’ judge, or without agreement with opposite counsel, made a material interlineation in a statement of facts while a certain cause was on appeal to the Court of Civil Appeals. The Supreme Court said:

“We are of the opinion that such act was clearly beyond the scope of her attorney’s authority, and therefore not her act (appellant’s act), in legal contemplation. Her legal right to have the case reviewed in the appellate courts on the legal record made below could not be defeated by an unauthorized change made therein by an attorney employed, not for that purpose, but to conduct the cause in a lawful manner.”

Justice Denman further used the following language, pertinently applicable to the immediate question under consideration:

“She can no more be deprived of such right for such a cause (the act of the attorney) than, a plaintiff, could be denied a judgment upon a note according to its original tenor, on the ground that the attorney to whom it was delivered for collection had thereafter made an unauthorized change therein.”

There is not the slightest suggestion in this record that the bank in any manner authorized or participated in the alteration in said judgment.

The trial court also rejected the theory of ratification of the attorney’s unauthorized act by the hank, and we conclude that the testimony and’record are in such condition that the court’s conclusion will have to stand. After the interlineation had been made in the judgment, and at a time when the attorneys for the bank were contemplating a realization upon the judgment by the issuance of execution, there was correspondence between the bank’s attoiney and the attorney representing the sureties upon the note ;■ the latter informing the former that the execution would be resisted. Then it was, according to the testimony, that the president of the bank was informed of the alteration which had been made in the judgment. The bank’s president testified:

“About a month or six weeks ago R. A. Moore informed me of the change. I did not authorize any one to make that change in the judgment; I was not present when it was made; I have not acquiesced in the change in the judgment.”

He further testified:

“I did not say, ‘You had no authority to do that,’ but I did disapprove of the change.”

See Colvin v. Blanchard, 101 Tex. 231, 106 S. W. 323.

As to ratification, of course, there are acts so manifestly indicative of intention as that, in some instances, the proof of the acts alone conclude the question of ratification; also there are cases where silence alone is a strong circumstance of estoppel or ratification, when the duty exists to speak. It is not shown in this record that the bank knew that its attorneys would continue any further correspondence with the attorney for the sureties with reference to the matter; nor can it be so clearly implied from this testimony, and from the condition of the- matter, considering tlie relation of tide parties, that the president should openly repudiate, to the attorney, the acts of the latter, as that we could say his silence constituted ratification by the bank.

Appellants say that the Cyclopedia of Law “lays it down as an invariable rule that filing suit on an instrument in its altered form is a ratification of the alteration and therefore estops the party bringing the suit from declaring on the instrument in its original form.” If we interpret the record correctly, this was not done. A motion was first made by the bank to correct the judgment in order, as alleged, that it speak the real agreement producing the rendition of same, and was not a suit to enforce the judgment in its altered form.

The appellee argues rather forcibly that the record indicates clearly in this case that this was a judgment upon a contract bearing interest at the rate of 10 per cent., and that the real agreement was predicated upon the note for every obligation of payment in said note, with only an extension of time to the obligors for the issuance of execution in favor of the judgment debtors; that the judgment, on account of article 4981, Vernon’s Say les’ Civil Statutes, though silent as to the rate of interest, by implication of said statute, and by operation of law, should hear the same rate of interest specified in the note after the date of said judgment. The following authorites may bear out the contention of appellee in this matter: Crook v. Tull, 111 Mo. 283, 20 S. W. 8; McNeill v. Durham & C. Ry. Co., 138 N. C. 1, 50 S. E. 458 ; Stuart v. Burcham, 62 Neb. 84, 86 N. W. 898, 89 Am. St Rep. 739. The cause of Townsend v. Smith, 20 Tex. 468, 70 Am. Dec. 400, in accordance with the last syllabus in the head-notes, is against the contention. However, the statute in effect, at the time this decision was rendered, prohibited any greater rate of interest then 8 per cent, upon judgments. Act approved January 18, 1840, and in existence when the Townsend-Smith Case was decided. See Hagood v. Aikin, 57 Tex. 513.

Of course, if the judgment, by implication of law, and perforce of the present statutes, though silent as to the rate of interest, bore interest at the rate of 10 per cent., the insertion of same into the judgment was an immaterial insertion, as the legal effect of the judgment was the same as the insertion. However, after considerable hesitation and upon the record as we find it here (the judgment having been an agreed one), though the question in favor of or against appellant’s contention might be appropriately decided, we prefer to rest the affirmance of the cause on the lack of authority of the client’s attorney, and the finding of the trial court against ratification by the principal of the agent’s act.

Affirmed.

On Motion for Rehearing.

Appellants afford hypothetical illustrations in the motion for rehearing, wherein an attorney or agent may, in pursuance of the principal’s business, perform acts which may be detrimental to the business in hand. Without attempting to discriminate or draw distinctions, or cite authorities on some of the positions assumed by appellant, we will make the statement in this form, which in reality is the gist of the opinion rendered in this cause: That where an agent performs an act in violation of the public policy of the state, while in the performance of the client’s business, when destructive of a client’s rights, this would not be- considered as within the implied anthority of that attorney. No authorities could be cited on such a proposition.

Motion for rehearing overruled.


author: HARPER, C. J.

text:
    ROYAL INDEMNITY CO. v. SCHWARTZ.
    (No. 372.)

    (Court of Civil Appeals of Texas. El Paso.
    Dec. 24, 1914.
    Rehearing Denied Jan. 21, 1915.)
    1. INSURANCE (§ 435) — Indemnity Policy-Exceptions.
    Where a city ordinance made it unlawful for any person under 18 years of age to drive an automobile within the city limits, and plaintiff’s automobile, while being driven by his 16 year old son, ran over and killed a child, a provision of plaintiff’s indemnity policy that it did not cover losses sustained while the automobile was being operated in violation off law was sufficient to protect the insurer from loss on account of the death of the child and from liability to pay costs recovered of the insured, if the ordinance was valid in fact.
    [Ed. Note. — Eor other cases, see Insurance, Cent. Dig. § 1144; Dec. Dig. § 435.]
    2. Municipal Corporations (§ 111) — Ordinances — Authority to Pass — Reasonableness.
    An ordinance passed under a city’s general grant of power must be reasonable, and, where the specific grant of power is contained in a charter to pass ordinances on named subjects, the test as to their constitutional limitations must be whether the ordinances contravene a common right, and, if the question is doubtful, it must be resolved against the ordinance.
    [Ed. Note. — Eor other eases, see Municipal Corporations, Cent. Dig. §§ 245-256; Dec. Dig. § HI.]
    3. Municipal Corporations (§ 625) — Ordinances — Automobiles'—Regulation.
    A city ordinance making it unlawful for any person under 18 years of age to drive an automobile “within the city limits” was invalid for unreasonableness as invading the rights of citizens by including within its regulated territory property other than streets and alleys, over which the city had no control.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 1378, 1379; Dec. Dig. § 625.]
    4. Insurance (§ 513) — Indemnity Policy-Liability eor Costs.
    Where an automobile accident policy provided that if any person should sustain bodily injury by accident by reason of the use of the machine, for which injury the insured was or was alleged to be liable, the company would indemnify him against such liability and would pay all costs incurred with the company’s written consent, the policy indemnified against liability, as distinguished from loss; and hence, having refused to defend an action against plaintiff for injuries, the company was liable for a reasonable attorney’s fee, for which plaintiff contracted and was liable, though plaintiff had not paid the same.
    [Ed. Note. — For other cases, see Insurance, Dec. Dig. § 513.]
    5. Insurance (§ 513) — Indemnity Polict— Defenses — Estoppel.
    An indemnity company, having repudiated its obligation to' defend an action against insured for injuries, was estopped to claim non-liability for attorney fees incurred by insured in himself defending the suit because the insurer’s consent in writing to incur the fee was not first had.
    [Ed. Note. — For other cases, see Insurance, Dec. Dig. § 513.]
    6. Appeal and Error (§ 1068) — Instructions — Prejudice.
    Where, in an action to recover for attorney’s services under an automobile accident indemnity policy, the undisputed evidence showed that there was an express contract of employment between plaintiff and his attorneys, and that, though the fee had not been agreed on, there was no claim that the fee charged was unreasonable, so that defendant was plainly liable therefor, it was not prejudiced by an instruction that the contract between plaintiff and his attorneys might be either express or implied, etc.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 4225-4228, 4230; Dee. Pig. § 1068.]
    Appeal from El Paso County Court; A. S. Eylar, Judge.
    Action by A. Schwartz against the Royal Indemnity Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Jones, Jones & Hardie, of El Paso, for appellant. Goldstein & Miller and G. L. & Atlas Jones, all of El Paso, for appellee.

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

       Writ o£ error dismissed February 10, 1915.

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

   HARPER, C. J.

This is an appeal from a judgment in favor of appellee for $505, being attorney’s fees and costs incurred by him in the defense of a certain suit, against which, appellee alleged, the appellant had executed its policy of indemnity.

Appellant admitted issuance of the policy and, as matters of defense, alleged that same was issued subject to the conditions therein contained. Those specifically urged here will be quoted in passing upon the assignments of error.' Appellant further pleaded and urges, under its first assignment, that the automobile was being operated in violation of law, to wit, an ordinance of the city of El Paso, which provides that it shall be unlawful for any person under the age of 18 years to drive an automobile within the city limits, and that the policy provides that the company shall not be liable for accidents if the automobile, at the time of accident, was being driven by a person in violation of law as to age; and therefore, since the undisputed evidence shows that the machine was being driven by the 16 year old son of appellee, the court should have instructed a verdict for appellant.

Appellee purchased of appellant a policy of insurance. While the policy was in force, the automobile, while being driven by appel-lee’s son within the city limits of the city of El Paso, who was at the time 16 years of age, ran over and killed Otis Eubank, a child about 7 years old. The day after the accident, the father asserted a cause of action against Schwartz, and same was immediately communicated to the company, and it was asked to defend same. In reply to the notice to defend, a telegram notified the attorneys that the company disclaimed liability, and advised Schwartz to make an adjustment. On April 25th the father instituted suit against appellee for $25,000. A copy of the citation and petition were delivered to appellant’s agents, and, through its attorneys, it again declined to defend the suit, and denied liability. Thereafter Schwartz compromised the suit, and judgment was entered against him for $1,000 in favor of Eubanks. Thereupon the appellee, Schwartz, demanded that appellant pay the costs incurred in defending the claim, including attorney’s fees, costs of court, and immediate surgical relief. The jury returned a verdict for $505.

The stipulation in the policy protects the company from loss on account of the death of the child and from liability to pay the costs recovered of appellee if there was, in fact, a valid ordinance of the city of El Paso against boys under the age of 18 operating automobiles upon its streets. Ætna Life Ins. Co. v. Tyler Box & L. Co., 149 S. W. 283. Appellee urges that the ordinance relied upon by appellant is void for the following reasons: (1) The city of El Paso has no power, under its charter, to enact the same. (2) That the ordinance by its terms applied to private property as well as public property, within the city of El Paso, and, being in one indivisible clause, the same could not be separated so as to make it apply to streets or public property of the city of El Paso, and for that reason was void. (3) That it conflicts with the state law on the same subject, in that, under the state law, no age limit is fixed. The only requirements under the law of the state is that the owner shall register his automobile and obtain a number. (4) That said ordinance was contrary to common right, arbitrary, unreasonable, oppressive, partial, and an unwarranted invasion of the rights and personal liberties of the citizens of this state.

The ordinance relied upon read as follows:

“No person shall drive or conduct any vehicle required by law or ordinance to be licensed or numbered, when such person is under 18 years of age. It shall be unlawful for any person under 18 years of age to operate or run an automobile within the city limits.”

Appellant relies upon section 2■ of the city charter as authorizing the city council to .pass and enforce the ordinance quoted. There seems to be no other grant of power upon ;the subject.

“Sec. 2. The city of El Paso shall have power ■to enact and enforce all ordinances necessary to protect health, life and property, and to prevent and summarily abate and remove nuisances, and to preserve and enforce the good government, order and security of the city and its inhabitants ; to protect the lives, health and property of the inhabitants of said city, and to enact and enforce any and all ordinances upon any subject: Provided that no ordinance shall be enacted inconsistent with the laws of the state of Texas, or inconsistent with the provisions of this act: And, provided, further, that the specification of particular powers shall never be construed as a limitation upon the general powers herein granted; it being intended by this act to grant to and bestow upon the inhabitants of the city of. El Paso, full power of self-government not prohibited to it by this charter or by some general law of the state, or by the provisions of the Constitution of the state of Texas.”

This section of the charter is simply a general grant of power for the accomplishment of the things enumerated. Therefore any ordinance passed, if it would find support in authority under it, must be reasonable. But, where specific grant of power is contained in a city charter to pass ordinances upon subjects named, the only test is as to their constitutional limitations—must not contravene a common right, etc. Ex parte MeCarver, 39 Tex. Cr. R. 448, 46 8. W. 936, 42 L. R. A. 687, 73 Am. St. Rep. 946. And if the power to pass such ordinance is in doubt, it must be resolved against the ordinance. Ex parte Epperson, 61 Tex. Cr. R. 237, 134 S. W. 685, 37 L. R. A. (N. S.) 303; section 589, Dillon Municipal Corporations (5th Ed.); City of San Antonio v. Salvation Army, 127 S. W. S64.

We think unnecessary to pass upon whether the city council was empowered to pass the ordinance relied upon, by the above section of the charter, for, conceding that the city had authority, under its general powers, to pass a reasonable ordinance “to protect life and property * * * to protect the lives, health and property of its inhabitants,” we must hold that the ordinance is not a reasonable one, because not limited to the regulation of the operation of automobiles upon its streets and alleys, but invades the rights of the citizen by including in its territory property over which it has no control. It will be noted that the ordinances quoted do not limit the places where an automobile may be operated to the streets, alleys, and public grounds, ’ over which alone it has control for such purposes, but prohibits or makes it a penal offense to operate an automobile within the city limits which includes upon private property. This invalid feature of the ordinance is =o inseparably connected with the whole ordinance as to render the entire ordinance void as an unreasonable and unwarranted invasion of personal liberty. City of Carthage v. Block, 139 Mo. App. 386, 123 S. W. 483; City of San Antonio v. Salvation Army, 127 S. W. 864.

The second assignment is to the effect that the company is not liable by reason of the fact that the following stipulations in the policy limit the liability on the policy to loss:

“(5) The insured shall not make any admission of liability either before or after an accident, nor shall he, except at his own cost, incur any expense, make any payment or settle any claim, nor shall he interfere in any negotiations for settlement or in any legal proceedings in respect to any injury for which the company shall be liable under this policy without in each case the written authority of the company, except only that the insured may provide at the time of the accident (and at the cost of the company) such immediate surgical relief to the injured person or persons as is imperative. The company shall have the right to settle any claim or suit at its own cost at any time. * * *
“(8) No action for the indemnity provided by this policy shall be against the company except for reimbursement of the amount of loss actually sustained, and paid in money by the insured in full satisfaction of a judgment duly recovered against the insured after final determination of the litigation, nor unless brought within two years after such final judgment shall have bean paid. This condition shall not prejudice any defense to any such action to which the company may be entitled.”

And further urges: That Schwartz not being liable for the tort of his child, before plaintiff could have a cause of action against the defendant, for indemnity, to him for damages arising out of the accident, and expenses incurred in defending, it was incumbent upon him to allege and prove that the claim of Eubanks for damages was one for which he was liable. That, the attorney’s fees sued for not having been reduced to judgment and not having been paid, it was not within the terms of the policy sued on. The same questions are presented under different assignments and propositions, but it is not deemed necessary to enter into a discussion of them seriatim as presented, for the inquiry is: Is the company liable under its policy for the attorney’s fees under the foregoing facts?

Section 3 provides:

“ * * * If any person * * * shall sustain bodily injury by accident * * * by reason of the * * * use of the automobile * * * for which injuries the insured is, or is alleged to be liable for damages, then the company will indemnify the insured against such liability * * and will pay all costs Incurred with the company’s written consent.”

Clearly this policy indemnifies against liability. The facts show conclusively that Schwartz is now liable to his attorneys for services performed in the settlement of a suit brought by Eubanks for damages arising by reason of the death of a child occasioned by the operation of the automobile concerning which the policy was issued. The company having refused to defend, as it had obligated itself to do, it was incumbent upon Schwartz to conduct his own defense. Since the question of Schwartz’s liability for the death of the child is not now in question, because he is not suing for the amount paid as damages, but only for attorney’s fees for which he is liable, he is clearly entitled to recover, and it was not necessary that the fee be paid to enable him to recover, but when he established that he was obligated to pay, and that the fee is reasonable, the liability contemplated by the policy had arisen, and his cause of action accrued.

And the company, after repudiating its obligation to defend, cannot be heard to say that, before it is liable for attorney’s fees, its consent in writing to incur the fee must first have been had. In effect, that would be to hold that the company, having in effect declared that it would not perform the obligation of its bond, thereby refusing to give consent in writing, Schwartz, not having written consent, cannot recover. The company cannot refuse to perform its part and demand anything of the assured. St. Louis Dressed Beef & Prov. Co. v. Maryland Casualty Co., 201 U. S. 173, 26 Sup. Ct. 400, 50 L. Ed. 712; South Knoxville Brick Co. v. Empire State Surety Co., 126 Tenn. 402, 150 S. W. 92, Ann. Cas. 1913E, 107.

There is no merit in the eighth and twelfth assignments.

The ninth, tenth, eleventh, thirteenth, fourteenth, fifteenth, sixteenth, 'and seventeenth assignments are disposed of by the discussions above, or else are for other reasons unnecessary to enumerate without merit.

The eighteenth assignment reads:

“Because the court erred in giving, at the instance of the plaintiff, special charge on behalf of the plaintiff, wherein the court told the jury that an agreement may be either expressed or implied, and that if one person requests another person to perform services for him without making an express agreement as to what he will pay for such services, and if, in pursuance of such requested services, they are furnished by the party requested to render such services for the party requesting such services, then and in that event the law implies an agreement on the part of the party requesting such services to pay a reasonable value for such services, because, under the undisputed evidence in this case, no such issue could arise or did arise. There was no evidence that the defendant requested the plaintiff’s attorneys to perform any services whatsoever, and the policy on which the plaintiff sued contains the express provision that no agreement on the part of the plaintiff to incur any costs or expenses shall be made, except with the written consent of the defendant, and said instruction was contrary to the evidence introduced, and in conflict therewith.”

And the nineteenth is substantially to the same effect. It is true that, if plaintiff had any contract with the attorneys to represent Mm, it was an express contract, and the only part of the contract not expressed but implied is for the attorney’s fees.'

The undisputed evidence being that there was an express contract of employment of the attorneys, Goldstein & Miller, and that the fee for services was not agreed upon, but there being no controversy as to the reasonableness of the fee charged, rule 62a (149 S. W. x) is applicable. Schwartz is liable for the fee because the services were performed and the charge is reasonable, and, under appellant’s imdemnity bond, it is liable to Schwartz for the amount. So, from all the record, exact justice will have been done by the enforcement of the judgment rendered; even though there be error in the charge on implied contract of employment, it cannot be cause ior reversal.

Being no error, the judgment is affirmed.


text:
    SANFORD v. COBE.
    (No. 376.)
    (Court of Civil Appeals of Texas. El Paso.
    Jan. 7, 1915.
    Rehearing Denied Jan. 21, 1915.)
    1. Pleading (§ 264) — Amendment—Effect as Abandonment oe Original Answer.
    Where the court, in sustaining an' objection to an answer, granted leave to amend, the filing of an amended answer constituted an abandonment of the former answer.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 803-805; Dec. Dig. § 264.]
    2. Election of Remedies (8 7)-Ignorance of Facts as Affecting Election.
    A purchaser of land, by filing an answer in the vendor’s action for the purchase price, alleging nonperformance of certain obligations by the vendoz”, and praying for specific performance and damages, did not make such an election of remedies as prevented him from thereafter seeking a rescission, if, when he filed such answer, he did not know the facts entitling him to rescind, and hence, where he filed an amended answer alleging facts entitling him to rescind and alleging ignorance of such facts when the former answer was filed, it was error to sustain an exception thereto, without hearing evidence as to his knowledge of such facts when the former answer was filed.
    [Ed. Note. — For other cases, see Election of Remedies, Cent. Dig. § 12; Dec. Dig. § 7.]
    3. Pleading (§ 93) — Answer—Inconsistent Defenses.
    In a vendor’s action for the purchase price, the purchaser had a right to plead facts entitling him to specific performance, and facts entitling him to rescind, though the two defenses were inconsistent, and though, on motion, he might have been required to elect.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 189, 190; Dec. Dig. § 93.]
    Appeal from District Cdurt, Reeves County; S. J. Isaacks, Judge.
    Suit by Ira M. Cobe against Daniel P. Sanford. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    Burges & Burges, of El Paso, Hudson & Canon, of Pecos, and Hunter & Hunter, of Ft. Worth, for appellant. Capps, Cantey, Hanger & Short and Ocie Speer, all of Ft. Worth, and Ross & Hubbard, of Pecos, for appellee.

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

   HARPER, C. J.

This suit was instituted by Ira M. Cobe against Daniel P. Sanford, on a contract for the purchase of certain lands, with a prayer for judgment for the unpaid portion of the purchase price, and for foreclosure of the vendor’s lien on the land. Trial before the court without jury resulted in judgment for plaintiff for $6,601.-92, with interest, and foreclosure of the lien.

. Appellant, in two assignments, charges that the court erred in sustaining plaintiff’s exceptions to all that part of the third amended original answer setting up fraud and praying for a rescission of the contract because of such fraud, and in striking from the files of the cause his fourth amended original answer and cross-petition for rescission on the ground that defendant had elected to affirm the contract pleaded by plaintiff by filing, first, his answer praying for specific performance and for damages growing out of the contract. Appellee suggests that there is no reversible error in the first assignment because appellee’s exception to appellant’s third amended original answer sustained by the court is not contained in the record.

It is true the record does not show what the exception was, but the court granted leave to amend; therefore the fourth amended answer was properly filed as an amendment and constituted an abandonment of the third (the overruling of which is complained of in the first assignment). Therefore the inquiry is: Was it error for the court to sustain an exception to the fourth amended answer upon the ground that appellant is estopped from setting up the new matter therein contained because he had elected his remedy by his former pleadings?

Appellant’s first amended answer admitted the execution of the contract sued on, and charged that the Swenson Land Company, appellee’s assignors, and plaintiff, as well, had failed to perform its certain obligations therein contained and set up certain items of damages sustained by reason of the company’s failure to perform, and prayed for specific performance and for the damages alleged.

The second amended answer sets up substantially the same allegations as the first as grounds for damages and for specific performance, and also the allegations of fact that the land company did not own the head spring and phantom lake as represented, and that the land was nonriparian, etc., and prayed for a rescission of the contract, but did not contain any allegation that he had no knowledge of the facts alleged upon which he based his prayer for rescission.

The third and fourth answers set up that, for the reasons enumerated, the land company, nor the appellee, were able, for reasons pleaded, to perform the contract entered into, and prayed for a rescission of the contract sued on and for the return of the money paid as first payment, $3,500.

In' addition to the above, the appellee urges that the fact that appellants had, prior to the pending suit, filed a suit in the courts of Illinois for specific performance, which was dismissed without prejudice, was an election of remedies, and that for both reasons the appellants could not defend upon the grounds alleged in the third and fourth amendments.

“An election once made with knowledge of the facts is in itself binding and cannot be withdrawn without due consent, although it may not have been acted upon by another by any change of position.” 15 Cyc. 262; Bauman v. Jaffray, 6 Tex. Civ. App. 495, 20 S. W. 260.
“If such an election was made, * * * appellant is bound by it,” but “an election does not occur through haphazard or mistake. An important element in such election is knowledge of the facts by the party charged with the election. The option can only be intelligently exercised upon full knowledge of the facts, and a party should not be held bound by an election when he did not know the facts upon which it could be intelligently based.” Wilson v. Carroll, 50 S. W. 222, and cases there cited.

Appellant urges that, since appellant pleaded under oath that he had no' knowledge of the facts upon which he based his pleadings for rescission of the contract when he filed his first and second answers, it became a mixed question of law and fact, and therefore the court erred in sustaining an oral motion to strike the fourth amended answer from the files without hearing evidence as to appellant’s knowledge of the facts alleged therein. Appellee contends that the first and second answers show conclusively that appellant had full knowledge of the facts set up in his third and fourth amended answers, upon which he based his prayer for rescission.

If appellant, at the time he filed his first amended original answer, had no knowledge of the facts upon which he, in his second, third, and fourth amendments, based his prayer for a rescission, he was entitled to set them up in such pleadings, and the court erred in striking them from the files. For in the second amendment he could plead two inconsistent defenses. He might be required upon motion to elect, but this was not done. Now, since, in his fourth amendment, he abandons the former pleading for specific performance, and his plea in reeonvention for damages, and elects to stand upon his plea to rescind the contract, it was the duty of the court to first determine, by hearing evidence, whether appellant in fact had knowledge of the facts upon which he based his defense in the latter pleading at the time he filed his first amended answer before sustaining an exception to it, based upon the proposition that he had elected his remedy, and there is nothing in the pleading of this appellant in this case, nor the one filed in Illinois, to show such knowledge.

The assignments are therefore sustained, and cause reversed and remanded.


text:
    SMITH et al. v. KOUSIAKIS.
    (No. 417.)
    (Court of Civil Appeals of Texas. El Paso.
    Dec. 24, 1914.
    Rehearing Denied Jan. 21, 1915.)
    MONOPOLIES (§ 12) — Cointracts—Restraint of Trade — “Trust.”
    A contract binding a party thereto to prevent the use for two years of a building for a lunch counter in competition with the lunch business of the other party conducted in the vicinity is void as in restraint of trade, within? Rev. St. 1911, art. 7796, defining a trust as a combination of capital, skill, or acts by two or more persons to create restrictions in the pursuit of any business permitted by law, etc.
    [Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 10; Dec. Dig. § 12.

    For other definitions, see Words and Phrases, First and Second Series, Trust.]
    Appeal from District Court, El Paso County ; P. R. Price, Judge.
    Action by Nick K. Kousiakis against R. A. Smith and another. From a judgment for plaintiff, defendants appeal.
    Reversed and remanded.
    Ballard Coldwell, of El Paso, for appellants. G. B. & Atlas Jones, of El Paso, for appellee.

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

   HARPER, C. J.

This is an action for injunction by Nick K. Kousiakis against R. A. Smith and Samuel Levinson. Judgment for plaintiff, and defendants appealed.

The appellants’ first, second, and third assignments are based upon mooted questions of fact, with evidence both ways. It will therefore be presumed that the trial court properly resolved the facts against the defendants, and in support of the judgment entered.

By their fourth and fifth assignments and the propositions thereunder, they assert the proposition that the contract between the parties, and set out herein, is in violation of what is commonly called the “anti-trust statute” of the state, and is therefore mul and void, and therefore the court erred in issuing its writ of injunction in aid of its observance by the parties.

O. B. Eads, being the lessee and in possession of a store building, known as 316 San Antonio street, El Paso, Tex., entered into the following contract in writing with Kousiakis: “The State of Texas, County of El Paso.

“Know all men by those presents, that O. B. Eads and F. A. Kirk and Nick Kousiakis, all of the city of El Paso, Texas, have contracted and agreed as follows: The said O. B. Eads and F. A. Kirk, for and in consideration of the sum of one hundred dollars ($100.00) cash in hand paid to them by said Nick Kousiakis, the receipt of which is hereby acknowledged, hereby contract, agree, and covenant with the said Nick Kousiakis, and promise to the said Nick Kou-siakis that neither they nor their lessees or assigns shall conduct, or permit to be conducted, in the front part of that certain building numbered 316 San Antonio street, city of El Paso, Texas, any kind of a lunch counter or lunch stand whatsoever at any time during the next two (2) years after March 13, A. D. 1914; and the said O. B. Eads and F. A. Kirk hereby bind themselves, their heirs, executors, and administrators, to faithfully perform this contract.
“Witness the hands of said O. B. Eads and F. A. Kirk and Nick Kousiakis, in duplicate,, this the 13th day of March, A. D. 1914.
“O. B. Eads,
“F. A. Kirk,
“Nick Kousiakis.”

Thereafter the premises were sublet to defendant Smith by Eads, and thereupon Smith leased to defendant Levinson a space in the front of said house to be operated for a lunch stand, and Levinson placed fixtures therein and commenced the operation of a lunch stand. At the time the above contract was executed, and at the time Levinson begun operating his lunch stand, the plaintiff was operating a similar lunch stand at 324 East San Antonio street, about 60 feet' away.

The particular provision of the anti-trust statute relied upon by appellant (article 7796, Revised Civil Statutes, 1911) is as follows:

“A ‘trust’ is a combination of capital, skill or acts by two or more persons, firms * * * or associations of persons, or either two or more of them for either, any or all of the following purposes: First * * * To create or carry out restrictions in the free pursuit of any business authorized or permitted by the laws of this state. * * * Seventh. To abstain from engaging in or continuing business, * * * partially or entirely within the state of Texas, or any portion thereof.”

The contract above quoted in no way partakes of the nature of an option, as contended for by appellee, but is clearly an attempt to prevent all others who desired to compete with plaintiff from renting and occupying the space in question, because such occupancy as a lunch stand would reduce the plaintiff’s sales and consequent profit — no provision that Kousiakis could under any circumstances occupy the building. The effect of the provisions of the above contract is that in consideration of $100 Eads binds himself to prevent any competitor of Kousiakis from occupying a building controlled by him, that he might get all of the lunch counter trade of that section of the city.

The rigor of the rule that contracts in restraint of trade are against public policy has been very materially relaxed, and it seems clear that the rule is now settled that covenants In partial restraint of trade are generally upheld, when ancillary to a lawful contract, for instance, agreements by a seller of a business not to compete with the buyer in a way not to decrease the value of the business sold, etc.; and, while we find no case in Texas announcing the doctrine, all the .cases cited and all found which upheld covenants in contracts are instances where such covenants were incident to and in support of the main contract, or a sale in which the covenantor has an interest which is in need of protection.

The Legislature having enacted the above statute, the courts are relieved of many of the questions involved in the constructions of such contracts, and it leaves but one; i. e., do the provisions of the particular agreement between the parties come within the meaning of the statute quoted? It provides:

“ * * * Hereby contract, agree, and covenant with the said Kousiakis, * * * and promise * * * that neither they nor their lessees or assigns shall conduct, or permit to be conducted, in the front part of that certain building, * * * 316 San Antonio street, city of El Paso, * * * any kind of a lunch counter or lunch stand,” etc.

If these covenants had been in a contract of sale or lease, then there could be no question that they would have been legal, and subject to be enforced by injunction; but there is a marked difference between the supposed case and this one, where Eads agrees with Kousiakis, the latter being in the lunch counter business in the same locality in the city, that in so far as the property he controlled in the same section was concerned he would see that no lunch counter be operated therein in competition with a business already established, not only while under his control, but in the hands of those holding under him. Clearly, an “act between two persons to carry out restrictions in the free pursuit of a business permitted by law — an agreement to abstain from and to prevent others from engaging in such a business”— thus preventing competition, interferes with the public interest. Crandall v. Scott (Civ. App.) 161 S. W. 925; Clemons v. Meadows, 123 Ky. 178, 94 S. W. 13, 6 L. R. A. (N. S.) 847, 124 Am. St. Rep. 339, and note.

As such, the contract was null and void, therefore unenforceable, and the trial court erred in granting the injunction. The cause must therefore be reversed and remanded, and the injunction dissolved; and it is so ordered.

Judge HIGGINS doubts the applicability of article 779S to the state of facts here presented, but is of the opinion that at common law the contract sought to be enforced is void, and he therefore concurs in the disposition of the case made by the majority. Briefly stated, his views are to this effect:

While the rigor of the early common-law rule has been relaxed, which declares void any contract tending to restrain trade, so that the common law now recognizes as valid many agreements in partial restraint of trade, yet they are limited to covenants when ancillary to a lawful contract, as, for instance, an agreement by the seller of d business not to compete with the buyer in such a way as to decrease the value of the business, or by a retiring partner not to compete with the firm, by a partner not to do anything to hinder the business of the partnership, by the buyer of property not to use it in competition with the business retained by the seller and agreements by the lessor of property not to use it in competition with the business of the lessee.

It is a very general rule that all contracts of this character must be incident to and in support of another contract or a sale in which the covenantor has an interest which is in need of protection. The contract in question is considered by him to be certainly in restraint of trade, and, since it is not ancillary to a lawful contract, it must be regarded as unreasonable, contrary to public policy, and void, irrespective of the applicability of article. 7796. Clemons v. Meadows, supra, and note thereunder.

Reversed and remanded.


author: HODGES, J.

text:
    PROVINE v. PROVINE.
    (No. 1366.)
    (Court of Civil Appeals of Texas. Texarkana.
    Dec. 23, 1914.
    Rehearing Denied Jan. 7, 1915.)
    Divokce (§ 124) — Gkotjnds—Ceueltv.
    In a wife’s suit for divorce, a showing that during the two months the parties had lived together defendant did not buy her any clothes, though he once gave her $20, that he was out late nearly every night, without, having any occasion to be absent from home, that he frequently came home under the influence of liquor, and then used rough language toward her, that he once said that he had been out with another woman, and that he accused her of misconduct with a former acquaintance and associate of hers, did not establish statutory grounds for a divorce.
    [Ed. Note. — For other cases, see Divorce, Cent. Dig. §§ 392-398, 450, 455, 456; Dec. Dig. § 124.]
    Appeal from District Court, Fannin County ; Ben H. Denton, Judge.
    Action for divorce by Jeffie Provine againsf W. O. Provine. Decree for plaintiff, with personal judgment against defendant for attorney’s fees, etc., and he appeals.
    Reversed, and judgment rendered, denying the divorce and setting aside the personal judgment.
    J. W. Gross, of Bonham, and J. G. Mc-Grady, of El Paso, for appellant. Cunningham & McMahon, of Bonham, for appellee.

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

   HODGES, J.

This is a suit for a divorce, instituted by the appellee against her husband. Upon the trial in the court below, in which special issues were submitted to the jury, a decree was rendered granting the divorce, and a personal judgment was awarded in her favor against the appellant for the sum of $460. This judgment included $125 as attorney’s fees. One of the assigned errors is that the evidence was not sufficient to support the judgment granting the divorce.

Taking the testimony of the appellee as uncontradicted, it shows in substance the following facts: She and her husband were married on November 21, 1912, and lived together until the 26th day of the following January — a few days over 2 months. She married against her father’s wishes, and was only 19 years of age at the time. After their marriage the couple went to Muskogee, Okl., to live. While there the husband worked at a soda fountain in a drug store. She says that during the time they lived together he did not buy her any clothing; that while they were in Muskogee he .was out nearly every night until late, without having any occasion to be absent from home; that he would frequently come home under the influence of liquor, and on some occasions would be drunk; that when drinking he used rough language towards her. He told her at one time that he had been out with another woman. During a visit they made to their parents at Honey Grove, he was out late on one occasion, and on his return informed her that he had been to the room of another woman. While in Musk ogee he also accused her of misconduct with a former acquaintance and associate of hers. Shortly before their separation they determined to leave Muskogee and take up their residence in Paris, Tex. They purchased tickets to Paris, but when they arrived at Honey Grove the appellant got off the train and remained there over her objection. She went on to Paris, where she had a sister residing, and phoned to her father, who lived in Honey Grove. Both her husband and father came down that evening, and she returned with them to Honey Grove. She and her husband were together during that trip. They separated that night, and have not lived together since. She admits that he gave her $20 in money while on their way from Muskogee to Paris, but says that he bought her nothing in the way of clothing during the time they lived together.

We do not think these facts constitute statutory grounds for a divorce. There is no other evidence of cruelty or bad treatment on the part of the husband, such as would render their living together insupportable to the appellee. The accusation referred to, in which she was charged by her husband with improper conduct with another party, she admits was made when no others were present. She does not state what that charge was, nor does she say that it was untrue. Unfortunately, as the writer thinks, the habitual and excessive use of intoxicating liquors alone by the husband does not constitute a legal ground for divorce. Neither does his remaining away from home constitute a ground, unless it amounts to abandonment extending over a period of at least three years, or is such neglect as amounts to cruel treatment. The appellee does not say that she was- left alone, or that she was neglected, or that she suffered any anxiety or inconvenience by reason of her husband’s being out at night; neither does she charge him with that character of marital infidelity which would constitute legal grounds for a divorce. His failure to furnish her clothing certainly could not be regarded as improper treatment, in the absence of some evidence that she needed the clothing and that he was financially able to furnish it. They had only been married a short time and there is nothing in the record to indicate that she needed for her comfort or convenience anything that was not supplied.

There are other questions presented in the appellant’s brief; but, inasmuch as we think the divorce should not have been granted, these will not be discussed. The judgment of the district court will therefore be reversed, and judgment here rendered denying the divorce and setting aside the personal judgment awarded against the appellant in the court below.


author: HARPER, 0. J.

text:
    TEXAS & P. RY. CO. v. MARRUJO.
    (No. 380.)
    (Court of Civil Appeals of Texas. El Paso.
    Jan. 14, 1915.
    Rehearing Denied Jan. 21, 1915.)
    1. Railboads (§ 345) — Accidents at Crossings — Variance.
    In an actiqp for the negligent killing of a pedestrian at a railroad crossing, proof that the deceased was crossing from, the north to the south is not a material variance from the allegation that he was crossing in the opposite direction ; since it could not possibly surprise or mislead the defendant so as to deprive it of its defense to the real cause of action.
    [Ed. Note — Eor other cases, see Railroads, Cent. Dig. §§ 1113-1116; Dec. Dig. § 345.]
    2. Railroads (§ 337) — Accidents at Crossings — Warning Signals — Proximate Cause.
    The failure of railroad enginemen to sound warnings on approaching a highway crossing does not render the company liable for the death of a pedestrian killed at the crossing, unless it was the proximate cause of such death.
    [Ed. Note. — Eor other cases, see Railroads, Cent. Dig. §§ 1090-1095; Dec. Dig. § 337.]
    3. Appeal and Error (§ 1001) — Review-Verdict — Proximate Cause.
    Where there is sufficient evidence to take to the jury the question whether the negligence of defendant was the proximate cause of the injury, the jury’s verdict on that issue cannot be disturbed.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3922, 3928-3934; Dec. Dig. § 1001.]
    4. Railroads (§-337) — Accidents at Crossings — Warning Signals — Proximate Cause.
    Where the testimony showed that deceased stepped on a railroad track at a highway crossing, where the view was unobstructed, only 25 feet in front of a freight train consisting of 22 cars, which necessarily made considerable noise, and whose headlight lighted up the track for a quarter of a mile, it cannot be said that the blowing of the whistle or ringing of the bell would have been effective to warn him, and the failure to sound such signals was therefore not the proximate cause of his death.
    [Ed. Note. — Eor other cases, see Railroads, Cent. Dig. §§ 1090-1095; Dec. Dig. § 337.]
    Appeal from District Court, El Paso County; M. Nagle, Judge.
    Action by Mipania A. de Marrujo, for herself and as next friend of Sofio Marrujo, against the Texas & Pacific Railway Company. Judgment for the plaintiff, and defendant appeals.
    Reversed and remanded.

      Peyton F. Edwards, of El Paso, for appellant. O. L. Vowell, of El Paso, for ap-pellee.

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

   HARPER, 0. J.

Appellee, Mipania A. de Marrujo, instituted this suit for herself, as surviving wife, and as next friend of her son, Sofio Marrujo, a minor son, against the Texas & Pacific Railway Company, to recover damages for the death of Victoriano Mar-rujo, husband and father, alleged to have been caused by the negligence of the defendant. Plaintiff alleged that on or about March 8, 1913, Victoriano Marrujo, while traveling along a public highway which crosses the railway company’s line of track, and that while crossing the track at a public crossing on same, in a careful and prudent manner, was run over and killed by a locomotive and train of cars being operated by the employes of the said company; that at the time he was run over the train was being operated at a rapid speed — to wit, 40 miles per hour; that there was no warning signal given of the approach of the train, neither by ringing the bell nor by blowing the whistle, and no headlight burning in said engine; that the approach to said crossing is obscured by buildings, fences of brush and weeds; that at the time of the accident he was attempting to go from south to north across defendant’s track along the public highway in the ordinary manner, keeping a reasonably careful lookout to preserve his life and body. She further alleged that on account of the failure .of the employes of the company to have a headlight on the engine, to blow the whistle, and to ring the bell 80 rods from said crossing, and to keep same ringing to the-crossing, and by running the train at a dangerous rate of speed, the deceased had no notice of its approach, and thereby, and by these means, was negligently killed.

The defendant admitted that the deceased was killed while crossing its track at a public crossing, but denied that he was using the highway in a careful and prudent manner at the time, and denied that its employés were guilty of the negligent acts charged at the time, and alleged specifically that the train was not being run at an excessive rate of speed; that the electric headlight was burning brightly; that the whistle was blown, as required by law, and denied that deceased was traveling from south to north across the track, and denied that deceased was keeping a reasonably careful lookout to preserve his life; that the track is clear and open both on the north and south sides, and that the train could be seen approaching for a long distance from said crossing.

The cause was submitted to a jury, and a verdict for plaintiff for $3,000 rendered, from which this appeal has been perfected.

The first assignment charges that the verdict of the jury is contrary to the evidence, and the evidence is at variance with the allegations in the pleadings, in that the petition alleged that the deceased was attempting to cross defendant’s railway track going from south to north, and the overwhelming testimony was that he was coming from the north, crossing to the south. There is no merit in this assignment. The rules of practice in civil cases are not so rigid as contended for by appellants. They are framed with the object in view that no person liable shall escape liability, if the pleadings of plaintiff reasonably inform him of the grounds upon which his cause of action is based, and if the allegations and proof do not so vary as to subject the pleadings to the criticism that the one sought to be held liable was surprised or misled. Kirby Lumber Co. v. Poindexter, 103 S. W. 439. There could certainly be nothing in the allegation that deceased was going north along a public road when attempting to cross defendant’s track, when in fact he was going south, that could mislead or surprise defendant into a failure to defend for the real cause of action, which is that the deceased was killed by reason of the negligence of defendant railway company while crossing the latter railway track; and the acts of negligence alleged are: First, that the defendant’s track was obscured, as alleged; second, an excessive rate of speed of the train; third, failure to blow the steam whistle; fourth, failure to ring the bell as required by law; and, fifth, failure to keep a headlight burning.

This brings us to the only other assignment of error, which, tersely stated, is that there is no evidence of any negligent act charged which was the proximate cause of the injury which resulted in the death of deceased. There is no evidence in the record of any obstruction on the defendant’s right of way. which obscured the view of trains approaching this crossing, and none that the train was moving at an excessive rate of speed. All the evidence of witnesses who place themselves by their testimony in a position to see is to the effect that the train headlights were burning brightly before and at the time of the accident, and could be seen by any person who chose to look many yards before reaching the crossing in question. It is practically admitted that the whistle was not blown nor-the bell rung for this particular crossing. The whistle had been blown for a switch a half mile or so east of the road crossing, but not for this crossing.

The sole question, then, to be determined by this inquiry is: Is there any evidence that the failure upon the part of the trainmen to ring the bell and blow the whistle for this road crossing was the proximate cause of the.accident? In other words, is it at all likely or probable that if the bell had been ringing and the whistle blowing, either or both, the deceased would have been warned of his danger in time to have avoided it, and that thereby the accident would have been averted? The mere fact that the bell was not rang, etc., is not sufficient to enable plaintiff to recover, but such failure must have been the proximate cause of the accident and so proven to be. Int. & G. N. Ry. Co. v. Matthews Bros., 158 S. W. 1048; T. & P. Ry. Co. v. Moody, 169 S. W. 1058.

If there was sufficient evidence to require the trial court to submit this question to the jury, this judgment cannot be disturbed upon appeal. Texas Midland Railway Co. v. Wiggins, 161 S. W. 445.

The only direct and positive testimony in the record, that of eyewitnesses, as to how deceased came to his death, is that of the engineer of the train. In substance, his testimony is as follows:

“I remember striking the man. I had a freight train of 22 cars. The headlight was burning brightly; nothing wrong with it whatever; and we had- other lights on the engine besides the headlight. The electric headlight would throw light a quarter of a mile, and can be seen a long ways — many miles. When I first saw the man he was not on the track. I first saw him just a few seconds before I struck him, in 20 or 25 feet of him. Pie was close up to the rail. When I first saw him I shut off steam as quick as I could and applied the brakes, and did everything in my power to stop the train. He apparently was going on the track, and made no effort to turn around or step back or anything of the kind.”

It is a matter of common knowledge that a freight engine drawing a train of 20 freight cars makes a great deal of noise, so, in view of this, together with the uncontradicted fact that the electric headlight was shining along the track, it is apparent that the deceased went upon the defendant’s railroad track in front of an approaching train under such circumstances as to place it beyond question that he was to blame for the accident, and that, if the bell had been ringing and the whistle blowing, he could not have had any more effective warning of the approach of the train than was given by the noise of the train and the bright light shining upon the track. Therefore the acts of negligence charged to the defendant’s train, operators could not reasonably be held, under the facts in this record, to be the proximate cause of the accident and consequent injuries to deceased.

The assignment, therefore, is sustained, and the cause reversed and remanded. Gulf, C. & S. F. Ry. Co. v. Townsend, 82 S. W. 804; Texas Midland Ry. Co. v. Wiggins, 161 S. W. 445; T. & P. Ry. Co. v. Shivers, 48 Tex. Civ. App. 112, 106 S. W. 894.

Reversed and remanded.