author: LANE, J.

text:
    JONES v. CITY OF HOUSTON et al.
    (No. 7348.)
    (Court of Civil Appeals of Texas. Galveston.
    July 28, 1916.)
    1. Municipal Corporations <&wkey;649 — Streets —Public Improvements — Maintenance op Sidewalks.
    Under Houston City Charter, art. 2, § 4, empowering the city to lay out, establish, open, alter, widen, pave, supervise, and maintain streets, alleys, sidewalks, and squares, and to vacate and close the same, the city could regulate the width of sidewalks, and altogether abolish them if traffic should warrant, unless some private right protected by Constitution, is impaired.
    [Ed. Note. — For other eases, see Municipal Corporations, Cent. Dig. § 1423; Dee. Dig. <&wkey;> 649.]
    2. Dedication <&wkey;58 — Streets—-Public Improvements — Maintenance op Sidewalks.
    A municipality authorized by charter to lay out, regulate, widen, etc., its streets and sidewalks is not hound by dedication to maintain sidewalks, but may appropriate the street from time to time to such uses as are conducive to the public good, and a court of equity will not interfere with the exercise of its discretion in that respect.
    [Ed. Note. — For other cases, see Dedication, Cent. Dig. § 100; Dec. Dig. <&wkey;>58.)
    3. Constitutional Law &wkey;>289 — Municipal Corporations &wkey;^290 — Streets — Public, Improvements — Maintenance op Sidewalks— Constitutional Law — Due Process op Law.
    Houston City Charter, art. 4a, § 1, defining improvements, section 5, providing for filing of petition for improvements, and section 7 providing for a hearing on the question of penalties, and section 8 providing that within ten days after such hearing a contest may be instituted but any person failing to institute suit within ten days shall be forever barred from attacking either the assessment or the validity of any proceeding with reference to the improvements, affords due process of law by the hearing, and one ■who fails to sue within ten days cannot avoid the assessment.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. S 870; Dec. Dig. <&wkey;289; Municipal Corporations, Cent. Dig. §§ 763, 764; Dec. Dig. &wkey;>290.]
    Appeal from District Court, Harris County; J. D. Harvey, Judge.
    Injunction by Charles P. Jones against the City of Houston and others. From an interlocutory order denying temporary injunction, the complainant appeals.
    Affirmed.
   LANE, J.

This is an appeal from an interlocutory order entered in chambers .by the judge of the Eightieth judicial district court, refusing to grant the temporary injunction prayed for by plaintiff. Said prayer sought to enjoin the city of Houston and the Eureka Paving Company from proceeding with the improvement of Main street by preparing same for and laying upon the same a pavement 60 feet wide with an esplanade, or parkway, in the center and driveways on each side of same. The case was submitted to the court below on bill and answer, the pleadings developing a state of undisputed facts, which we briefly summarize: That plaintiff is the abutting owner of a piece of property fronting on Main street in the city of Houston, a part of what is known as Block 1, Kirby Main Street addition to said city, plaintiff’s said property having a frontage on Main street of 80 feet. That Main street through said addition was dedicated by John H. Kirby, who laid out the same, to be a street 60 feet in width. That .said dedication was the ordinary dedication by map and plat, and the same dedicated to the city of Houston a street 60 feet in width, from property line to property line. That after the said street was dedicated the city of Houston appropriated for the purpose of a road' or driveway a space of 35 feet, and constructed, or caused to be constructed, upon same a brick pavement, leaving on each side of said road or driveway, a- space of 12% feet not appropriated for driveway, and about one year prior to the bringing of this suit appellant was compelled by the city of Houston to, and he did, construct a 5-foot cement sidewalk on Main street upon the space not appropriated for roadway for vehicles, at a cost to him of $51.30. Thereafter-wards, on or about the 24th day of January, 1916, a petition in regular and due form under the terms of article 4a of the charter of the city of Houston, asking for the pavement of Main street from the north property line of McKinney avenue to the end of the brick pavement on said street, which said limits included the street in front of plaintiff’s property, was filed with the city council .of the city of Houston, and was by the said council accepted and received by resolution passed on the same day. That under the terms of said petition and resolution the said street in front of plaintiff’s property was to be improved by placing upon the same an esplanade 16 feet in width in the center thereof, and constructing a paved roadway on each side of the esplanade 20 feet in width, thus requiring and taking for said improvement the entire 80 feet of the street. That said petition was duly accepted by the city cduncil, the procedure designated and required by article 4a of the city charter was undertaken and complied with, and on the 17th day of April, 1916, the city of Houston, under the terms of said charter, duly entered into a contract with the Eureka Paving Company to pave the'said street with a surface of asphaltic concrete, and thereafter, also in accordance with said charter, due notice of a hearing for the purpose of determining the special benefits to plaintiff’s and other abutting property as provided therein was given, the same to he heard on the 18th day of May, 1916, at the city hall in Houston, Tex. At said hearing all the proceedings in connection with and leading up to the improvements were, by the city council, by appropriate legislative acts, duly confirmed, and the property owners were duly assessed with their portion of the cost which in law, under the provisions of the charter, was assessable against them. Of each and all of the proceedings of the city council plaintiff had full notice and knowledge, and appeared in person at the hearing on benefits, as provided in section 7, art. 4a, of said charter, but did not file with the council any objection to the validity of any proceeding with reference to said improvements, as required by said charter, nor did he afterwards institute suit within ten days from the said hearing, as provided in section 8 of the same article, to contest the proceedings underlying the said improvement.

Plaintiff’s contention, based upon the above facts, is, briefly stated, that he had a right in law to have a portion of the street in front of his premises maintained as a sidewalk, and that the city had no power, without condemnation, to appropriate the entire space for driveway and esplanade purposes.

It will thus be seen that the determination of the question involves, and is answered by the consideration of, the general rights with reference to all of its streets which the city of Houston has under its charter, and the particular right, with reference to this particular street, which it has acquired by the improvement proceedings instituted under its said charter.- Examination of the charter of the city of Houston shows that both by section 4, art. 2, in which it is provided that “the city of Houston shall have power to lay out, establish, open, alter, widen, pave, supervise, maintain,” etc., “streets, alleys, sidewalks, squares,” etc., “and to vacate and close the same,” and by article 4a of the city charter, providing for street improvements by assessment, that the Legislature has conferred upon the city of Houston full and complete control of its streets, avenues, sidewalks, and public places, and the use and improvement of the same, and that this discretion and control is paramount unless some private right -protected by the Constitution, is impaired. In this delegation of power to the city of Houston the Legislature has but followed the custom and practice prevailing with reference to such matters since the dawn of modern, or quasi modern municipal governments, it being recognized everywhere that a strong, localized central control of the streets and avenues— the arteries of the life and commerce of a .city — must be vested in its common council, and that any other system of regulation or government would be intolerable.

It stands admitted upon the pleadings of the parties that the property in controversy, in which plaintiff claims that he has a private right to a sidewalk which he is entitled to have protected by injunction, is a part of a regularly dedicated, laid out, and used public street of the city of Houston, and from what has been said it follows that unless plaintiff has some private right which is infringed, the act of the city council in connection with said improvement is an act of legislative discretion, in the performance of the functions of municipal government, with which a court of equity will not interfere.

The first question, then, to he determined is, Is there any requirement imposed from the dedication of a public street by map and plat that there shall always be preserved a sidewalk in front of and appurtenant to the property? Or, stating it another way, Does the act of dedication generally to the public of a street by map and plat compel the city to divide the street into strips of sidewalk and driveway so as to give an abutting owner a private right to enjoin the appropriation of the entire street for roadway purposes? Or can a city, in the exercise of its public discretion, appropriate the whole property to driveway purposes if it deems it necessary and desirable in the public interest free from interference? We think the answer to this question is plain, and rests upon sound reasoning that, with changing conditions of travel and use the city council of a city has the right to adapt and appropriate the street from time to time to such uses as in its judgment would be most conducive to the public good, and that a court of equity will not interfere with the exercise of this discretion.

Nor is authority wanting to sustain this reasoning. In many cases it has been held by the courts of last resort that a city council does not have to provide a space for a sidewalk, but may, in the exercise of its discretion in the control and management of its streets, appropriate the entire dedicated street for driveway purposes, and with this discretion the courts have nothing to do.

In Brevoort v. City of Detroit, 24 Mich. 322, in an opinion by Justice Cooley in which complaint was made of failure to preserve a sidewalk space on a public street, Judge Cooley said:

“A second objection is that the paving included those portions of the street before used as sidewalks, and that the sidewalks were, in effect, abolished, not by direct resolution for that purpose, but indirectly, by ordering the paving. This is claimed to be illegal, but we do not very distinctly perceive the reason why. A street includes the whole width of public way; it is customary in a city to set apart a portion of it for foot passengers; but there is no rule of law absolutely requiring this, and in many .parts of an incorporated town it might'be needless. We have no doubt the whole matter was within the control of the council.”

In Attorney General v. Boston, 142 Mass. 200, 203, 7 N. E. 722, 724, in the Supreme Court of Massachusetts, in which complaint was made, the court said:

“There is nothing in this act which renders it obligatory on any city accepting it to construct sidewalks in any of its ways. Whether this shall be done is left to the discretion of its lawful authorities.”

On page 204 of 142 Mass., on page 726 of 7 N. E.. the court again says:

“The general power to construct sidewalks or not on all streets, whether macadamized or paved, must be construed as one which deals with the whole subject, and places it within the control of the local authorities. It authorizes them, not merely to construct them or not at their discretion where they do not now exist, but to remove or to dispense with them where they do exist if, in their judgment, it is desirable.”

In the case of Bekkedahl v. Village of Westby, in the Supreme Court of Wisconsin, 140 Wis. 230, 122 N. W. 727, plaintiff complained that the village board had employed one Olsen to construct a curb and gutter for the street improvement so that all that portion of the roadway lying south of the stone curb, including the space occupied by plaintiff’s plank sidewalk, will be macadamized and turned into the street for travel, and plaintiff will be deprived of the use thereof for sidewalk and boulevard purposes, and that in order for plaintiff to have a sidewalk he would be compelled to build the same upon his own land. The prayer of the petition was for an injunction restraining the village and contractor from building the curb and gutter further north than the old established curb line for the driveway, and from interfering in any way with the strip of land 5 feet wide which plaintiff was using for a sidewalk. The demurrer to the petition for injunction was sustained. Plaintiff appealed. The court said:

“The principal charge is that defendants are about to interfere with a part of the public street, and that the village board is acting under a petition in so doing. * * * The village having the right to improve the street and it proceeding on a petition so to do, it must be presumed that it is acting lawfully in the absence of any allegation to the contrary. * * * The acts to he done under the contract with the defendant Olson are to be done within the limits of the street. The general power conferred by law on the village include the power to deter-mino the width of the traveled tract” (citing authorities). “The complaint is barren of facts sufficient to entitle the plaintiff to equitable relief, and therefore the demurrer was properly sustained.”

In the case of W. D. Hester v. Durham Traction Company, 138 N. C. 288, 60 S. E. 711, 1 L. R. A. (N. S.) 981, which was a suit to enjoin the laying of a railroad track on a 'sidewalk, the principles governing sidewalks and the power of city councils over the same are well expressed. In this case the court said:

“The sidewalk is simply a part of the street which the town authorities have set apart for the use of pedestrians. 27 Am. & Eng. Enc. Law (3d Ed.) p. 103: Ottawa v. Spencer, 40 Ill. 217; Chicago v. O’Brien, 111 Ill. 532, 53 Am. Rep. 640. The abutting proprietor has no more right in the sidewalk than in the roadway. His rights are simply that the street, including roadway and sidewalk, shall not be closed or obstructed so as to impair ingress or egress to his lot by himself. * * * Moose v. Carson, 104 N. C. 431, 10 S. E. 689, 7 L. R. A. 548, 17 Am. St. Rep. 681; White v. Northwestern North Carolina R. Co., 113 N. C. 610, 18 S. E. 330, 22 L. R. A. 627, 37 Am. St. Rep. 639. As said in State v. Higgs, 126 N. C. 1014, 35 S. E. 473, 48 L. R. A. 446: ‘An abutting owner to a street and sidewalk has an easement in his frontage which he may use in subordination to the superior rights of the public.’ Sidewalks are of modern origin. Anciently they were unknown, as they still are in Eastern countries, and in perhaps a majority of the towns and villages of Europe. In the absence of a statute, a town is not required to construct a sidewalk. Atty. Gen. v. Boston, 142 Mass. 200, 7 N. E. 722. It is for the town to prescribe the width of the sidewalk. In the absence of statutory restriction it may widen, narrow, or even remove a sidewalk already established. Id. To widen a sidewalk narrows the roadway. To widen the roadway narrows the sidewalk. The proportion of the street to be preserved for pedestrians and vehicles respectively is in the sound discretion of the town authorities.”

The authorities would be sufficient to sustain the action of the court below in refusing the injunction if there were nothing else in the case than a mere ordinance, since they fully recognize the general power of cities to regulate and determine the use to be made of their streets. In this case by a much stronger reason the plaintiff’s petition shows on equity, because, in addition to the general powers granted to the city of Houston with reference to its streets, the Legislature had, in article 4a of the city charter, conferred upon the city council authority and jurisdiction to determine both the public necessity and general benefit of the improvements proposed, and the special benefit to the abutting owners along the street, and has also made reasonable provisions for hearing upon the questions involved, together with a timely resort to the courts in the event of dissatisfaction with the ruling of the council.

Article 4a of the charter of the city of Houston provides, among other things, as follows:

Section 1. The term “improvements” as embraced in this article shall include the improvement of any street, avenue, alley, highway, public place, or square or boulevard, or any portion thereof within the city, by filling, grading, raising, or paving or repaving the same with any permanent and durable materials, or by the construction, reconstruction, or repair of curbs and gutters, and shall also include the laying out, opening, widening, narrowing, straightening, or otherwise establishing, ■ defining, or locating any street, avenue, alley, square, public place, or sidewalk.
Section 5 of the same article, after providing for the filing of petition for making all improvements, which petition shall designate the nature of the improvements and the limits within which the same were to be constructed, provides:
“If the said petition or petitions are found by the city council to be in due form, and the signatures thereto are genuine, and if, in the judgment of the city council, under all the circumstances * * * the making of such improvements is for the public good and that the same ought to be made, the city council shall by resolution so declare, and shall order the making of such improvements * * * and the passage of such resolution shall be conclusive of the regularity and legality of said petition, or petitions, and the public necessity ¿nd general benefit of such improvements.”

Section 7 of said article 4a provides for a hearing upon the question of said benefits, and declares that the city council shall have full power to inquire into and determine all matters necessary to the adjudication of all questions necessary to determine such assessment, and shall determine all matters as shall be just and proper. Any objection to the validity of any proceeding with reference to said improvements shall be filed with the1 council in writing before said hearing is closed, and shall be deemed waived unless So filed.

Section 8 of the same article provides that at any time within ten days after the close of the said hearing suit may be instituted to contest any of said proceedings, and any person failing to institute suit within ten days shall be forever barred from attacking either said assessment or the validity of any proceeding with reference to said improvements.

Provisions such as these have been discussed in many cases, and have been by the courts uniformly sustained. In their work on Taxation by Assessment, Page and Jones, in section 1003, say:

“If courts, or executive or legislative bodies, are given jurisdiction to determine certain facts, the existence and exercise of such power implies that, in the absence of statutes specifically providing for a review of the action of such body by some other tribunal, such action must be final. Accordingly it is generally held that in an assessment proceeding, the finding of a court or of a council, or of some other legislative, administrative, or executive body, upon matters within the jurisdiction of such body, cannot be attacked collaterally” (citing many authorities)

—and in section 1004 the same authors say:

“Under the statutes in force in many jurisdictions, a council or executive board and the like having jurisdiction conferred by statute, may confirm an assessment and under such circumstances an assessment after confirmation cannot be attacked collaterally.”

Again the same authors say in section 1005:

“Under many statutes a finding by executive officers, the city council, commissioners specially chosen for that purpose, and the like, as to certain specified facts is made final, at least if jurisdiction exists, and if such finding is free from fraud. Such statutes are ordinarily held to be valid.”

In the case of Hibben v. Smith, 191 U. S. 322, 24 Sup. Ct. 88, 48 L. Ed. 195, that great tribunal said:

“The claim, set up on the part of the lot owner, that there can be no due process of law under which an assessment can be made which does not provide for a review of such assessment and the hearing by a court is not tenable. Assuming the necessity of a hearing before an assessment can be made conclusive, the law may provide for that hearing by the body which levies the assessment, and after such hearing may make the decision of that body conclusive. Although in imposing such assessments the common council or board of trustees may be acting somewhat in a judicial character, yet the foundation of the right to assess exists in the taxing power, and it is not necessary that in imposing an assessment there shall be a hearing before a court provided by the law in order to give validity to such assessment. Due process of law is afforded where there is opportunity to be heard before the body which is to make the assessment, and the Legislature of a state may provide that such hearing shall be conclusive so far as the federal Constitution is concerned.”

Under some statutes the owner of the property assessed is given an opportunity to have the validity of the assessment reviewed by proceedings in court. Such an opportunity is held to constitute due process. Security Trust & Safety Vault Company v. City of Lexington, 203 U. S. 323, 27 Sup. Ct. 87, 51 L. Ed. 204.

In this state the same principles are in effect announced in the case of Hutcheson v. Storrie, 92 Tex. 698, 51 S. W. 848, 45 L. R. A. 289, 71 Am. St. Rep. 884, where the Supreme Court held that there was no due process because no opportunity for a hearing on the question of benefits was provided, the hearing allowed being on matters wholly foreign to the special benefits, so that the ordinance, while apparently giving a hearing, “but kept the promise to the ear while it broke it to the hope,” that court in effect holding e converso that had such hearing been provided, there would have been due process. See, also, Wharton County Drainage Dist. No. 1 v. Higbee, 149 S. W. 381, decided by this court.

In the particular case before this court, as we have seen, upon the petition provided in the charter, designating the limits and describing the character of the improvements to be made, the city council, after having passed the resolution, which by the terms of the legislative act is made conclusive as to the wisdom of the improvement, its public necessity and general benefit, under the provisions of the charter, gave full opportunity for hearing on the question of benefits to plaintiff’s property. At that hearing the council confirmed the proceedings and established the assessment, and the plaintiff filed no objection, as provided by the charter, nor did he prosecute his suit within the time in the charter limited. Under the express terms of the charter plaintiff is deemed to have waived his objections, and is forever barred from attacking the validity of any proceedings with reference to the improvements.

That the provisions of the city charter furnish to plaintiff full and ample due process we have no doubt, and that t.i effect of the proceedings is to finally and conclusively determine the wisdom and public necessity of the improvements is equally clear, and it thus appears that the judgment of the court below should be affirmed, both because in the action of the city council no private right of his has been infringed by making said improvements which a court of equity is called upon to protect, and because all questions as to the correctness and fairness of the improvement have been concluded by a proper tribunal with whose judgment the court of equity in this collateral proceeding has no power to interfere.

The judgment of the court below should therefore be affirmed, and it is so ordered.
      ®=»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HUFF, O. J.

license: Public Domain

text:
    PECOS & N. T. RY. CO. et al. v. McMEANS.

    (No. 1031.)
    (Court of Civil Appeals of Texas. Amarillo.
    June 28, 1916.
    Rehearing Denied Oct. 11, 1916.)
    1. Appeal and Error <&wkey;1068(2) — Harmless Error — Instructions—Accidents at Crossings.
    In an action for personal injuries received at a railroad crossing, error in a charge, that “it is the duty of persons attempting to cross at a public crossing of a railway company to exercise ordinary care for their own safety,” in not presenting the proposition that it is the duty of such person to stop, look, and listen, was harmless, where the jury found that defendant did not fail to stop, look, and listen.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. § 4226; Dec. Dig. <§=>1068(2); Trial, Cent. Dig. §§ 475, 525, 526.]
    2. Railroads &wkey;352 — Accidents at Crossings — Actions—Issues.
    An issue, “Did defendants fail to have a competent man stationed at the crossing to give warning?” sufficiently presented the question of whether there was a competent flagman at the crossing.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 1216; Dec. Dig. <&wkey;>352.]
    3. Appeal and Error <&wkey;1082(l) — Review-Harmless Error — Special Issues.
    Where the jury answered, “No,” being an affirmative finding to the issue, “Did the plaintiff fail to stop, look, or listen or to discover the approach of the box car upon defendant’s track, or to observe and heed the signal and warning, if any given, by defendant’s agents and employés?” and found in answer to other issues that plaintiff used ordinary care, the fact that each of the questions separated by “or” were separate issues and should have been submitted separately was harmless error.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4212; Dee. Dig. <@=> 1062(1).]
    4. Damages <@=>217 — Injury to Property-Measure op Damages — Instructions.
    In an action for damage to an automobile, a charge, that the measure of damages was the difference in its value before and after the injury, was abstractly correct, since an allegation of injury will authorize a recovery for all those damages which naturally and necessarily flow from the injury done, being the difference in value before and after in most instances and controlled by market value if there is any.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 556-559; Dec. Dig. <@=>217.]
    5. Damages <&wkey;217 — Injury to Property-Measure op Damages.
    Where the pleadings sought to recover the cost to repair an automobile, a charge, submitting as the measure of damages the difference in its_ market value before and after the injury, was incorrect, the issue being whether the repairs were reasonable and necessary, and the plaintiff being entitled to recover the difference between the market value after the repairs and before the injury, with reasonable and necessary expense in making the repair.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 556-559; Dec. Dig. &wkey;217J
    6. Appeal and Error <@=>1140(1) — Damages —Acceptance op Remittitur.
    Where the charge on measure of damages was incorrect, a remittitur of the amount of judgment for the repairs will be accepted.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4462, 4464, 4470-4474; Dec. Dig. <@=>1140(1).]
    7. Trial <@=>351(5) — Submission op Issues— Reposal op Requests — Matters Otherwise Covered.
    Refusal to submit a specially requested issue, which was sufficiently submitted under other issues and also covered by other issues in negative form, was not error.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 834; Dec. Dig. <@=3351(5).]
    8. Damages <&wkey;184 — Injury to Person — Negligence in Treatment op Injuries.
    Where plaintiff was injured at a railroad crossing, the mere fact that he refused to permit a hypodermic to be used in easing him did not show a want of proper treatment, especially when it is not shown that failure to accept the hypodermic was a neglect of the case.
    [Ed. Note. — For other eases, see Damages, Cent. Dig. § 502; Dec. Dig. <&wkey;184.]
    9. Damages <&wkey;184^-PERSONAL Injuries — Negligence in Treatment op Injuries.
    Where plaintiff was injured at a railroad crossing, the mere fact that at the time of the accident he did not realize his injury and did not at once begin a treatment does not show negligence in treatment.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. § 502; Dee. Dig. <@=>184.] ■
    10. Damages <&wkey; 174(1) — Injury to Automobile-Pleading — Issues.
    In an action for damage to an automobile at a railroad crossing, where the pleadings sought recovery of the cost of repairs, evidence of the market value of the automobile just before and after the accident was inadmissible.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 462, 465, 467; Dec. Dig. &wkey;> 174(1).]
    11. Appeal and Error <&wkey; 1052(1) — Harmless Error — Evidence — Eppect op Re-mittitur.
    In an action for damages to an automobile at a railroad crossing, where the pleadings sought recovery of the cost of repairs, error in admission of evidence of market value before and after the accident was rendered harmless by a remittitur of the whole amount recovered.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. § 4171; Dec. Dig. &wkey;> 1052(1).]
    12. Evidence <@=>123(11) — Admissibility — Res Gestae — Statement op Employé.
    In an action for personal injuries received at a railroad crossing, caused by making a “flying switch,” a statement, made immediately after the accident by the foreman of the switching crew, that he would be likely to lose his job, because he had an accident before in making a flying switch and had been reprimanded, was admissible as part of the res gestae; it being .an utterance instinctively made as the result of impulse produced by the occurrence to which it related.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 365; Dec. Dig. &wkey;123(ll).]
    13. Witnesses >@=5330(1) — Cross-Examination — Scope.
    Such statement was also proper matter for cross-examination as affecting the weight of witness’ testimony upon direct examination, to the effect that it had been the custom to make a drop switch since he had been in the yard.
    [Ed. Note. — For other eases, see Witnesses, Cent. Dig. § 1106; Dec. Dig. &wkey;330(l).]
    14. Costs >&wkey;238(3) — On Appeal — Where Re-mittitur Filed After Appeal.
    Where a judgment was affirmed after allowing a remittitur not filed until after appeal, costs of the appeal will be taxed against the appellee.
    [Ed. Note. — For other eases, see Costs, Cent. Dig. §§ 013, 914; Dec. Dig. &wkey;238(3).]
    Appeal from District Court, Potter County ; Hugh D. Umphres, Judge.
    Suit by R. L. MeMeans against the Pecos & Northern Texas Railway Company and others. Judgment for plaintiff, and defendants appeal.
    Affirmed.
    Madden, Trulove, Ryburn & Pipkin, of Amarillo, and Terry,' Cavin & Mills, of Galveston, for appellants. Jones & Miller and P. S. Pearson, all of Amarillo, for appellee.

      Application for writ of error pending in Supreme Court.

   HUFF, O. J.

R. L. MeMeans, the appellee, brought suit against the appellant railway companies for damages occasioned by personal injuries received by himself, and damages to an automobile. He alleged substantially that on February 2, 1914, he was crossing at the Tenth street crossing in Amarillo, Tex., with one John Benson, in his automobile, and in attempting to cross the Tenth street crossing the automobile collided with a box car, which defendants negligently permitted to be shoved across said crossing; that it was nighttime, about 8 o’clock; and that appellants were making a flying or drop switch at said point and permitted the box car to roll across said crossing, without being under the control of any person and without having lights thereon, and without proper signals and warnings. There were some seven grounds of negligence specified as having been the proximate cause of the injury. He set out fully and specifically his injuries — both to himself and the auto. Appellants answered, denying the acts of negligence alleged, and pleaded contributory negligence and other matters not necessary to set out. The case was submitted to the jury on special issues, and in answer thereto they found that the appellants were guilty of negligence in each and all of the particulars alleged, and that the ap-pellee was not guilty of contributory negligence. Judgment was rendered on the verdict for $2,401.70.

The first assignment asserts error in the fourth paragraph of the court’s charge that:

“It is the duty of persons attempting to cross at a public crossing of a railway company to exercise ordinary care for their own safety;”

It is asserted as a proposition that it is the duty of such person to stop, look, and listen, and that he is not relieved from negligence by simply using ordinary care. The Supreme Court has said:

“The law is well settled that a traveler approaching a railroad crossing must exercise ordinai'y prudence in going upon the track to see that he may do so with safety.” Railway Co. v. Ward, 100 Tex. 22, 93 S. W. 106.

The above case approves what was said with reference to a similar charge to the one here given, in Railway Co. v. Lee, 70 Tex. 496, 7 S. W. 857. The Ward Case, however, held the fact that the injured party admitted he had not listened or looked for the train before stepping on the track, under the circumstances of that ease, were sufficient to establish he was not then in the exercise of proper care. Such is not the question here. If, however, the charge was not correct, the finding of the jury renders the error immaterial.

In answer to the twenty-fourth special issue, the jury found appellee did not fail to stop, look, and listen. Having found that he did the very thing which appellant claimed he should have done answers their objection made under this assignment.

The sixth assignment objects to the seventh issue: “Did defendants fail to have a competent man stationed at the crossing to give warning?” The objection appears to be that the issue .should have been submitted, whether there was a competent flagman at the crossing. The term, “a competent man to give warning,” is substantially the same thing, under the facts of this ease, and the jury evidently so considered it.

The third assignment assigns error to the form of issue 24: “Did the plaintiff fail to stop, look, or listen, or to discover the approach of the box car upon defendant’s track, or to observe and heed the signal and warning, if any given, by defendant’s agents and employes?” The jury answered this question, “No.” The form of the question and the jury’s answer imply that the appellee failed in none of the things inquired about; in other words, it is an affirmative finding I-Ie did all the things asked about. This was not a matter to the injury of the appellant. The jury, in answer to other issues, found he used ordinary care in approaching and going upon the track and was not negligent in failing to discover the box car in time to prevent collision with his auto. We think the form of the question submitted, and the other issues and answers thereto, render the1 contention that each of the questions separated by “or” were separate issues and should have been submitted separately immaterial; if not in the proper form became harmless tinder the findings. There was no injury to appellant by reason of the form of the issues under the answers given.

, The fourth assignment is sufficiently answered by what is said under the third assignment.

The fifth assignment is that the court submitted an incorrect measure of damages as to the auto; that is, the value before and after its injury, because the pleadings did not warrant the measure of damages submitted.

The damages alleged was $151.70, expended in repairing the auto, in order to restore it to the condition it was before the accident. The difference in its market value before and after the injury was not sought to be recovered by the pleadings, but the cost to repair it and to restore it to its former condition.

The allegation of injury to the auto by the negligence of the appellant will authorize a recovery for all those damages which naturally and necessarily flow from the injury done. This, in most instances, is the difference in the value of the property before and after the injury, and, if there is a market value before and after for such property, that will control the measure. The charge of the court is therefore abstractly correct. Railway Co. v. Levi, 59 Tex. 674; Railway Co. v. Levy, 45 Tex. Civ. App. 373, 100 S. W. 195; Railway Co. v. Eddleman, 175 S. W. 775. The objection to the charge is that the pleadings did not authorize it. The appellee alleged that it cost to repair the auto $151.70. It appears in cases of this kind the owner may recover the difference between the market value after the repairs and before the injury, with a reasonable and necessary expense in making the repair. Cooper v. Knight, 147 S. W. 349. Under the pleadings, therefore, the appellee could not recover the full difference between the value just before and after the injury. The jury found such difference to be $250. The plea was that it took $151.70 in repair to restore it to the same condition as before the accident. If this is true, $151.70 would be the damages. The charge therefore was not warranted by the pleadings. The issue was whether the repairs were reasonable and necessary, and, if so, this would compensate for the injury.

The appellee, in the court below, remitted all of the $250 over $151.70, the amount alleged. We might, under some circumstances, be able to say the result as to the two measures would be the same, and therefore no injury. In this case, however, the jury awarded nearly $100 more than it was alleged was required to restore it to its former condition. We suppose this resulted from the character of evidence adduced. It might be that, if the repair bill had been offered, its reasonableness could have been questioned. The issue was ■ not submitted whether the repairs were made as alleged, or whether reasonable or necessary. It occurs to us this is the issue that should have been submitted. The appellee offers in this court, in ease we conclude the charge incorrect, to remit the amount of the judgment for the repairs to the auto. This offer we think, under the state of this record, should be accepted, which is here done. The evidence offered as to the measure of damages should have been confined, under the pleadings, as to whether the repairs were reasonable and necessary to restore the auto to its former condition.

The sixth assignment is that the trial court erred in refusing to submit specially requested issue No. 5. We believe this issue was sufficiently submitted, under issues by the court, in issues Nos. 19, 24, and 27, and also other issues covered it in a negative form. There is no injury shown by. this assignment.

The seventh assignment is overruled for the reasons given under the sixth assignment, and under the third and fourth assignments.

The eighth assignment is based on a refusal of the issue, at the request of appellant, as to what per cent, of appellee’s personal injuries were occasioned by failure to use ordinary care in the care and treatment of his injuries. We find nothing, in the statement set out by appellant, showing negligence in the care and treatment of the injury received. The evidence simply shows that appellee did not realize he was injured at the time of the accident further than the jar. Later in the night he realized his condition and telephoned (another physician. The mere fact that he refused to permit a hypodermic to be used in easing him did not show want of proper treatment, especially so when it is not shown that the failure to accept the hypodermic was a neglect of the case. The mere fact that at the time of the accident he did not realize his injury does not show negligence in the treatment. If it should be considered for anything, it was only as to whether there was any injury at all. We think it natural under the excitement of the moment that he would not realize his condition and that it would therefore raise no question of negligence in failing to at once begin a treatment; he then knew of nothing to treat, and, until he knew or realized his condition, ordinary care did not require it.

The ninth assignment, to the testimony of the witness, given as to the market value of the auto just before and after the accident, was not admissible under our construction of the pleadings. The reasons given by us under the fifth assignment will apply to this assignment; but, as the remittitur offered by appellee has been accepted by us, no such error is shown as will require a reversal.

The tenth assignment is based on the testimony of L. J. Smith, on cross-examination, as to a statement he made to Dr. McMeans, at the time of the accident. This witness was foreman of the crew engaged in switching on Tenth street, on the night and at the time and place of the accident. The following question and answer were objected to:

"Q. Didn’t you make the statement out there immediately after the accident that you would likely lose your job because of the fact that you had made a flying switch before and had gotten took up on account of it? A. Yes, for the simple reason that I had put a car on the ground; I had an accident when I made that flying switch.”

It was charged in the pleadings, as an act of negligence, that a flying or drop switch was made at a public crossing, and the issue developed whether such a switch was against a rule of the company, and whether the company permitted or forbade it. This witness, on direct examination, testified:

“It always had been usual and customary to make drop switches of that character at that place, ever since I had been in the yard.”

The objections urged to the question and answer were that the answer would not be binding upon the appellant and that negligence could not be predicated upon such statements. The evidence, aside from the question, shows the statement was made immediately after the accident. There was no objection made that the evidence was not part of the res gestse or that it was hearsay. If this testimony was part of the res gestse, it was admissible. The true test to be applied is whether the utterance was instinctively made as the result of impulse produced by the occurrence to which it related. This test, if applied to this evidence, under the issue was admissible. Instinctively the witness expected to lose his job because of the switch made causing the collision. He inferred this on the ground that he had an accident previous thereto from such a switch and had been reprimanded. Time is not so much an element as that it should be a spontaneous expression produced or caused to be made by the accident. The rule and the distinction are clearly stated in the case of De Walt v. Railway Co., 22 Tex. Civ. App. 403, 55 S. W. 534, cited by appellant; Railway Co. v. Anderson, 82 Tex. 516, 17 S. W. 1039, 27 Am. St. Rep. 902; Railway Co. v. Pierce, 25 S. W. 1054; Railway Co. v. Gray, 95 Tex. 424, 67 S. W. 763. In addition to the above, we think this testimony was admissible on the question of the weight to be given to the witness’ testimony upon direct examination, to the effect that it had been the practice and custom to make a drop switch since he had been in the yard. This was a- proper cross-examination and tended to show the witness knew it was dangerous to make such a switch and that it was not the custom and practice to do so. Const. Co. v. Crawford, 39 Tex. Civ. App. 56, 87 S. W. 223.

The ease will be affirmed, after allowing the remittitur of $151.70, as of the date of the judgment; but the costs of this appeal will be taxed against the appellee, as the remittitur was not filed until after appeal.

Judgment affirmed.
      <g=»jfor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      ®=jFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HUFF, C. J.

text:
    FIRST STATE BANK & TRUST CO. OF HEREFORD v. VARDEMAN.
    (No. 1019.)
    (Court of Civil Appeals of Texas. Amarillo.
    June 14, 1916.
    Rehearing Denied Oct. 11, 1916.)
    1, Banks and Banking <&wkey;165 — Deposit op Notes'for Collection.
    The proceeds of notes deposited with a bank for collection were held in trust by the bank for the depositor, and it had no authority to use such proceeds, except as directed by the depositor.
    [Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §§ 571-573, 583-585; Dec. Dig. &wkey;165.]
    2. Subrogation <&wkey;26 — Application of Proceeds of Notes.
    The cashier of a bank received three notes from his brother for collection, there being a written transfer of the first maturing note as collateral to the brother’s individual debt to the bank. The cashier, without authority, later gave the bank a letter, directing it to place his brother’s note as collateral to notes executed by him and his brother to a third party and deposited by such third party with the bank or its president for collection. The bank or its president applied the proceeds of the notes to the notes of the cashier and his brother deposited by the third party. Eeld, the bank was not subrogated to the rights of the third party in the notes executed by the cashier of the bank and his brother, since in subrogation the primary requirement is that the party seeking it shall have paid the debt of another, and in having done so shall not have acted as a mere volunteer, but upon compulsion or to protect his own interest.
    [Ed. Note. — For other cases, see Subrogation, Cent. Dig. § 67; Dec. Dig. &wkey;>26.]
    Appeal from District Court, Deaf Smith County; D. B. Hill, Judge.
    Action by Winfred Vardeman against the First State Bank & Trust Company of Hereford. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Gilliland & Estes, of Hereford, for appellant. Russell & Dameron and S. J. Dodson, all of Hereford, and Kimbrough, Underwood & Jackson, of Amarillo, for appellee.
   HUFF, C. J.

The only issue presented on this appeal is whether the trial court should have held that the appellant Bank & Trust Company was, under the facts of this case, and the findings of the jury, subrogated to the rights of the holder and owner, Arnold, of two notes for $575 each, made payable to one Clapp, and executed by Winfred Varde-man and Otho Vardeman, and indorsed by Clapp to Arnold and held by appellant or its president, S. B. Edwards, for collection, and which were paid by appellant out of funds belonging to appellee; and whether the judgment should have been rendered for a sum less the amount of the two notes.

The jury, in answer to special 'issue No. 5, find that the appellant in good faith paid the two $575 notes out of the proceeds of the two McOane notes, last to mature. The facts in this case will support the finding that appellee owned a section of land in Lipscomb county, which he sold to one McOane, in April, 1910, receiving a cash payment of $1,760 and took three notes for $1,333.33% each, due respectively in one, two, and three years after date; the last note maturing May, 1913.

Prior to the sale and at the time appellee was indebted to appellant in the sum of about $2,700, which was secured by deed of trust on the section of land in Lipscomb county, except about $300 of the $2,700, which was unsecured. The understanding between appellant and appellee was that when the land was sold the cash payment should be credited on the indebtedness due appellant, and that the note received for the land first maturing should be placed up as collateral to the balance due on the indebtedness. This was done when the land was sold to McOane, the appellant taking the appel-lee’s note for $1,000 and a transfer of the first maturing McOane note for $1,333.33%, as collateral thereto; the other two McOane notes were left in the bank for collection. The bank collected the two latter notes 'on or about the date of their maturity, and applied the proceeds on some other indebtedness owing it by what is known as the Sims note, an indebtedness owing it by Otho Yarde-man, a brother of appellee, who had formerly been cashier of appellant bank, and who was acting in that capacity at the time the notes and trade above mentioned were executed and made, and the notes left with the bank. The bank, or Edwards, the then president of the bank, also applied part of the proceeds collected from the McOane notes to the two notes owned by Arnold for $575, and paid off these two notes with the funds so collected on the McOane notes. S. B. Edwards, president, testified he held personally the two notes for Arnold for collection, together with some $40,000 or $50,000 of other paper belonging to Arnold. On June 9, 1913, the bank passed to the credit of Arnold, from the funds so collected on appellee’s note, the sum of $509, and on December 24, 1913, the bank passed to the credit of Arnold of the funds so collected, due appellee, $1,075.40. Previous to either of these dates, possibly in May or June, 1912, the appellee demanded of the bank the notes placed in it for collection. This demand was made through an attorney, Mr. Roloson. At that time the bank notified Roloson there were no notes there belonging - to appellee, to which he was entitled; that the notes it had were held as collateral. It appears the bank claimed the notes were held to secure an indebtedness of one Simms, but it was admitted by Edwards there was no promise on the part of appellee to pay this note, either verbally or in writing; and it also claimed it was collateral to a note of Otho Yardeman, due the bank. The bank applied the proceeds from the McOane notes to the two above-named notes. By special findings, the jury find no liability on the part of appellee for these two last-mentioned notes, and found against appellant as to their contention of which no complaint is here made. It appears that Otho Vardeman, some time after the bank had possession of the McOane notes, and as we understand from the record, after he had ceased to be cashier thereof, directed the bank to hold the McCane notes as collateral on the Arnold notes. In his testimony in this case he admits he had no authority from appellee to place his notes as collateral to the Arnold notes. The testimony of Edwards, the president, is that the appellee never authorized him to apply or appropriate the money collected on appellee’s note, either verbally or in writing, to apply on Arnold’s note, and he admits that he never, at any time, mentioned the Arnold notes to appellee. The bank passed the money received on the notes to Arnold’s credit after Roloson demanded the notes, and it is inferable it did this after it knew that appellee was claiming the notes or proceeds thereof should not go on the Arnold note. The two $575 notes were executed to Oscar Clapp by Otho and Winfred Vardeman, for part of the purchase money of one-half of a section of land out of section 147, in Lipscomb county. We believe the facts will warrant the inference that these notes were executed to pay for Otho’s one-fourth of the land so purchased, and that appellee, in fact, paid all his part of the purcha*se money for his one-fourth interest, and the two notes were not in fact his debt. The bank, it appears, contended that the section for which the three McOane notes were executed, belonged to Otho and Winfred Vardeman. The evidence shows, and is uncontradieted, that appellee alone owned that section and that Otho had no interest in it.

The facts are sufficient to warrant the finding, of the trial court that after the payment of the appellee’s individual indebtedness out of the note first maturing, the bank had only the authority to collect the other notes, and that they were not held as collateral to any other debt; that as between Otho and Winfred Vardeman, the two $575 notes were the debt of Otho, and that he had no authority to pledge appellee’s note to the payment of these two notes, and that the bank had notice of such fact when he attempted to do so; that the two notes for $575 each were not the property of the bank, but were held only for collection; that appellee did not authorize the bank to apply the proceeds from his note to the payment of the Arnold notes held for collection; that before the bank passed to Arnold’s credit sufficient

of the proceeds from appellee’s notes to discharge the Arnold notes, appellee had demanded his notes, which appellant refused to deliver, and thereafter collected and passed the proceeds to the credit of Arnold for the purpose of paying his two notes; at that time it had no such authority; and that the fund was appellee’s, over which Otho had no control. The proceeds collected were held in trust by appellant for appellee, and it had no authority to use the same except as directed by appellee. There was no request made of appellee by appellant to pay the two Arnold notes, and there was no request by Otho Vardeman of appellant to pay the two notes for him, but only a direction to use his brother’s property as security on the two notes which he had no right or power from his brother to do. Under the facts of this case there was no subrogation by agreement, and none in law or in equity. Appellant does not purport to have paid these notes out of its own funds, but took appel-lee’s money, held in trust, to pay the notes, and this was without authority from appel-lee or from any one who had authority from him. So far as the facts show, appellant is out nothing. It paid nothing of its own; it attempted to pay one man’s money held by it on another man’s note, held by it, for collection, and this without authority so to do. In so far as the appellant was concerned, it was none of its business if appellee was one of the makers of the two notes. It had no power to force him to pay it; that was a matter for the other parties. Appellant could not arbitrarily set itself up as a court and adjust the rights of the parties; at least without consulting one of the parties at interest, and the one whose money was being used for. that purpose. Its trust relation gave it no such powers. In subrogation the primary requirement is that the party seeking subrogation must have paid the debt of another, and, in doing so, he must not act as a mere volunteer, but upon compulsion or to protect his own interest, etc. Tarver v. Land Mortg. Bank, 7 Tex. Civ. App. 425, 27 S. W. 40; Park v. Kribs, 24 Tex. Civ. App. 650, 60 S. W. 905.

The bank in this case did not pay the debt, but sought unlawfully and without authority to use appellee’s money and to apply it upon a debt appellant assumed appellee should pay. It, perhaps, is true if appellant had been requested to pay the debt and it had done so upon such request, it could invoke subrogation. Oury v. Saunders, 77 Tex. 278, 13 S. W. 1030; Whitselle v. Texas, etc., 27 S. W. 309. However in this case, there is no pretense that appellee requested the bank to pay the debt. The only semblance of a request is that the brother, Otho, authorized it to hold appellee’s note as collateral to the Arnold notes. This was not a request to pay, and the bank did not pay, but took appellee’s money and passed it to Arnold’s credit. There was therefore no implied promise on the part of Otho, if the proceeds were so passed, he would pay the debt. If such can be claimed to prevent a fraud, it cannot affect the appellee, who was not a party to it, and did not induce the appellant so to act. When the notes of appellee were placed in possession of the bank, there was a written transfer of the first maturing note as collateral to appellee’s individual debt to the bank; the other two notes were delivered and held by the bank for collection. Otho Vardeman, at the time of receiving the notes, was cashier of the bank, and acting for it. The facts are undisputed that these two notes were so held, and the bank must -be held as charged with notice of the cashier’s knowledge when he received the notes. After this, the bank procured a letter from Otho, directing it to place his brother’s note as collateral to the two Arnold notes. The bank was then holding the notes under the original instruction and trust given by ap-pellee; it knew or must have known, of these instructions. It, however, assumed Otho had authority to place them as collateral. It knew he did not own them, and knew how it got possession of the notes. It is significant in this case that the bank was careful not to notify appellee that it held the Arnold notes, or to make a request of him of any sort, with reference thereto.

While the jury find in this case good faith on the part of the bank, in using the proceeds of appellee’s notes to pay the Arnold notes, in the light of the undisputed facts, the payment was made out of appellee’s funds. They may have believed that appellant acted in good faith in believing Otho could so use his brother’s property to pay his own debt. The undisputed facts are however, he had no such right or power, and the facts will not warrant the conclusion that the appellee induced appellant so to believe.

We believe the court, under the facts of this case, as well as the findings of the jury, correctly entered judgment for the appellee for the amount thereof, and the judgment will be affirmed.
      ite^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: McMEANS, J.

text:
    DAVIS v. CONVERSE.
    (No. 7229.)
    (Court of Civil Appeals of Texas. Galveston.
    June 5, 1916.
    Rehearing Denied June 22, 1916.
    Further Rehearing Denied Oct. 5, 1916.)
    1. Bills and Notes <@=>370 — Holder in Due Course.
    Where P. told C., who desired a loan, that he would negotiate his note, which was done, to a third party, who gave P. her, check, payable to C.’s order, receiving C.’s note, the check being' later cashed with .C.’s name indorsed on it, but. not by him or by his direction,' P. having failed to turn the check over, P. was C.’s agent for the negotiation of the note, and the purchaser was an innocent purchaser for value before maturity, title passing to her free from any defenses by reason of P.’s failure to deliver to O. the money for which the note was negotiated.
    [Ed. Note. — Eor other cases, see Bills and Notes, Cent. Dig. § 963; Dee. Dig. @=3370.]
    2. Bills and Notes @=3493(3) — Lack oe Consideration — Burden oe Proof.
    In suit on a note by one who held possession, his ownership not being questioned, the burden was on defendant maker to prove that the holder did not pay a valuable consideration for it, if he sought to defeat such holder’s right to recover on the theory that the latter was not a purchaser for value.
    [Ed. Note. — Eor other cases, see Bills and Notes, Cent. Dig. §§ 1652-1654,1656-1660,1662; Dec. Dig. @=3493(3).]
    3. Bills and Notes @=3520 — Eraud in Inception — Proof.
    In an action on a note, where it was shown that the instrument was executed and delivered in good faith to a broker for negotiation, being negotiated and sold for face value and the purchase money paid by the purchaser, the only fraud proved being that of the broker in failing to pay the purchase money over to the maker, fraud in the inception of the note was not proved.
    [Ed. Note. — Eor other cases, see Bills and Notes, Cent. Dig. §§ 1813, 1832, 1836, 1837; Dec. Dig. @=3520.]
    Error from District Court, Harris County; Wm. Masterson, Judge.
    Action by O. M. Davis against Thomas P. Converse. To review a judgment for defendant, plaintiff brings error.
    Judgment reversed, and judgment rendered for plaintiff.
    Elliott Cage, of Houston, for plaintiff in error. W. O. Huggins and Jesse E. Moseley, both of Houston, for defendant in error.
   McMEANS, J.

Thomas P. Converse, desiring a loan of $500 with which to meet a monthly pay roll, was told by E. E. Pye that if he (Converse) would execute his note for said sum, payable to his own order, he (Pye) would negotiate the same, and bring the money to him (Converse) on the following day. Accordingly, Converse executed his promissory note, of date July 12, 1912, for said sum, payable “to myself,” due 30 days from date, and indorsed his name upon the back of it, and then delivered the note to Pye to be negotiated. Pye on the next day went to Mrs. L. Douise Pye and told her that Mr. Converse needed some money to meet his pay roll and asked her if she would accept Converse’s note for the amount of $500, to which she assented and gave to Pye her* check on the First National Bank of Houston for said sum, payable to the order of Converse; and Pye thereupon delivered Converse’s note to her. The check was cashed by the bank, but to whom it was paid the evidence does not show. At the time it was presented to the' bank, Converse’s name was indorsed on the. back of it; but this was not done by Converse, nor by his direction. Converse never received the money, and did not know what had become of his note until it was presented to him for payment by Davis, who claimed to be the owner of it. He refused to pay it, whereupon Davis brought this suit against him to recover thereon. The case was tried before a jury and upon instructions from the court returned a verdict for defendant Converse, upon which a judgment in his favor was duly entered, and from which Davis has appealed.

We shall not discuss appellant’s assignments of error in detail.

Mrs. Pye testified, among other matters, that, after she purchased the note in the manner hereinabove stated, “I gave the note to Mr. Pye to take charge of for me. I do not, of my own knowledge, know what he did with it. Mr. Pye has always handled my transactions for me, and whatever he done was satisfactory with me. The only knowledge I have of what became of the note after I bought it is I gave it to Mr. Pye.”

We think that, under the facts stated, Pye was the agent of Converse for the negotiation of the note, and not Mrs. Pye’s agent in making the purchase, as appellee contends; that Mrs. Pye was an innocent purchaser for value before maturity, and that upon purchasing the note the title thereto passed to her free from any defenses that arose by reason of Pye’s failure to deliver to Converse the money for which it was negotiated; that Pye in making sale of the note to Davis, if it was he who made the sale, was for that purpose Mrs. Pye’s agent; and that the purchaser of the note from him as her agent, or from her through any other source, acquired the legal title to the note, freed from any defenses that were not available to the maker as against Mrs. Pye.

The court instructed the jury to render a verdict in favor of Converse upon the theory that it was incumbent upon Davis to prove that he had paid value for the note, and that, as he had failed to make such proof, he was not entitled to recover.

We think that Davis’ position is similar to that of a remote indorsee, between whom and the maker there is no privity. Davis sued as the owner of the note and held possession of it as shown by the fact that he produced it in evidence. His ownership was not questioned in the court below, nor here. Being the owner, the presumption obtains that he acquired it for value, and the burden rested upon defendant to prove that he did not pay a valuable consideration for it, if he would defeat plaintiff’s right to recover upon the theory that he was not a purchaser for value. Herman v. Gunter, 83 Tex. 68, 18 S. W. 428, 29 Am. St. Rep. 632; Tolbert v. McBride, 75 Tex. 97, 12 S. W. 752.

We cannot agree with the contention of appellee that fraud in the-inception of the note was proved. The note was in good faith delivered to Pye, as a broker, for the purpose of negotiation and was negotiated and sold for its face value and the purchase money paid. The only- fraud proved was that of the broker Pye, Converse’s agent, in failing to pay the purchase money over to his principal. The principle invoked and the authorities relied upon by appellee to defeat a recovery by a transferee, by reason of fraud in the inception of a transaction, has no application under the facts of this case.

It follows that it is our conclusion that the judgment in favor of Converse was erroneous, and should be set aside, and that judgment should be here rendered for Davis, and it has been so ordered.

Reversed and rendered.
      <§=»Eor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      @=3For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HALL, J.

text:
    COLE v. KNIGHTS OF MACCABEES OF THE WORLD.
    (No. 979.)
    (Court of Civil Appeals of Texas. Amarillo.
    May 10, 1916.
    On Motion for Rehearing, Oct. 11, 1916.)
    1. Insurance <§=>815(4) — Mutual Benefit Insurance — Action on Policy — Pleading —Issues.
    In an action on a policy of benefit insurance, where plaintiff beneficiary alleged specifically the duty of defendant to notify deceased of suspension for nonpayment of dues, it was not necessary for defendant to allege the fact of notice before introducing evidence that all delinquent members were duly notified by written notice in regular form by mail.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1998; Dec. Dig. <§=>815(4).]
    2. Evidence <§=>252 — Mutual Benefit Insurance — Actions on Policies — Declaba-tions.
    . Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4832, providing that a beneficiary in a mutual benefit life association has no vested interest in the contract of insurance until the death of the insured, in an action on a policy of benefit insurance, evidence that deceased, when asked by witness to pay his July assessment, said that he would not keep it up, or did not want to keep it up, was admissible, since where the beneficiary in an insurance contract has no vested interest until after the death of the insured, declarations of insured are admissible against the beneficiary to prove forfeiture.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 989-993; Dec. Dig. <§=>252.]
    3. Appeal and Error <§=>742(4) — Review-Assignment of Ebbob.
    Where the objection made to the admission of evidence did not include the question urged in a proposition under 'an assignment of error, the proposition is not germane to the assignment.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. <@=>742(4).]
    4. Appeal and Ebbob <§=>722(1) — Review-Assignments of Ebbob.
    Where an assignment of error is based on a motion for new trial, but reference to the motion shows that it does not present the same question and is not a copy of the assignment in the motion for new trial, it cannot be considered, since while a motion for new trial is not necessary in cases tried before the court without jury, when a motion has been filed in such case, the errors assigned in the court below must be the errors .assigned in the Supreme Court.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2990, 2994-2996; Dec. Dig. <§=722(1).]
    5. Insurance <§=750 — Mutual Benefit Insurance — By-Laws. "
    In an action on a policy of fraternal benefit insurance, where a by-law clearly provided that a member failing to pay his monthly rate within the month shall be suspended without notice, and the evidence is sufficient to sustain the judgment based upon it, obscurity in other by-laws pleaded would have no bearing upon the issue of the failure of assured to pay his monthly rate.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1895, 1896, 1903; Dec. Dig. <§= 750.]
    On Motion for Rehearing.
    6. Insurance <§=756(1) — Mutual Benefit Insurance — Notice of Forfeiture — ByLaws.
    Under by-laws of a mutual benefit insurance association, providing for suspension, without notice, of assured from all rights for failure to pay monthly rate within the month on first day due, and for notice of such suspension to an official, who shall report it to the next meeting, no affirmative action or notice to assured of forfeiture on part of the association was.necessary to forfeit the certificate, but the failure of the member to make the required payment ipso facto worked a forfeiture.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1917; Dec. Dig. <§=>756(1).]
    Error from District Court, Dallas County; J. C. Roberts, Judge.
    Action by Mrs. Lizzie Cole against the' Knights of the Maccabees of the World. Judgment for defendant and plaintiff brings error’.
    Affirmed.
    H. W. Peck, of Dallas, for plaintiff in error. Cross & Rogers, of Waco, for defendant in error.
   HALL, J.

This is an action by plaintiff in error, to recover the amount of a benefit certificate of insurance, issued by the defendant in error to Thomas Ross Cole. Plaintiff in error is the mother of Thos. Ross Cole, deceased, and the beneficiary named in’ the certificate.

Plaintiff in error alleges in her original petition that, in consideration of the payment of $1.15 per month, the defendant issued the certificate upon which the suit is based, whereby it insured the life of Thomas Ross Cole in the sum of $1,000, payable to plaintiff in error; that Thomas Ross Cole died in the city of Dallas, October 6, 1913, while said certificate was in full force and effect; that defendant had denied liability, waived proofs of death, and the signature of the certificate; and that neither plaintiff nor the insured had notice of the forfeiture of the certificate sued on. She tendered into court the amount of the monthly payments, per capita taxes, and additional assessments due and unpaid, and prayed for judgment for the full amount of the certificate. Defendant in error answered, alleging that the insured had failed to pay his dues and assessments, and by reason thereof the certificate was not in force at the time of his death and was null and void. The answer sets up the following provisions of the hy-laws:

“Sec. 329. Effect of Suspension. A member under suspension for any cause except when suspension is for a definite period as a matter of discipline, forfeits absolutely his right to participate in the benefit funds of the association, or the fraternal privileges of his tent. Suspension for discipline shall not affect the right of a member to participate in the benefit funds of the association, but shall deprive him of all fraternal privileges for the period of his suspension.
“Sec. 330. Suspension from Association, and Tent. A life benefit member failing to pay a monthly rate per capita tax, or additional assessments within the month, on the first day of which it is due, shall stand suspended, without notice from all rights of life benefit membership and from all the privileges and benefits of his tent.
“Sec. 331. Notice of Suspension to Supreme Record Keeper. A member suspended for failure to pay a monthly rate or additional assessments, must be reported by name to the Supreme Record Keeper, by the tent record keeper in his monthly report. The record keeper shall also report the name of each member so suspended to the tent at its next regular review.
“See. 332. Failure to P<yy Tent Dues. A member neglecting or refusing to pay his tent dues or any fine or special assessment, levied by the tent, for a period of thirty days after the same is due, shall be reported in open tent by the record keeper, provided that the record keeper shall, before making such report, notify such member to pay the amount due before the next regular review of the tent.
“Sec. 333. Suspension Declared. A member so reported shall at once be declared suspended by the commander from all rights and benefits of the association, and shall be notified by the record keeper of the action of the commander.”

It is affirmatively alleged that the application provides that a failure on the part of the insured to pay any monthly rate or assessment within the time provided by the bylaws, or failure to pay the dues fixed by said law, and in the manner and at the time provided thereby, or the by-laws of the tent, shall vitiate the certificate; that sections 315 and 330 of the by-laws provide, in substance, that on failure on the part of a member to pay a monthly rate within the month on the first day upon which it fell due he should be suspended without notice from all rights, privileges, and benefits of the order.

It is further alleged that at the time of the death of Oole he was under suspension for failure to pay his monthly rate to the association due for the month of July, and that he also failed to pay his monthly dues for the month of July, August, September, and October, 1914; that section 377 of the by-laws was in full force and effect, and provided that no benefits should be paid on account of the death or disability of any member under suspension for any cause at the time of his death, unless such suspension was for a definite time, as a matter of discipline, and that the said Oole was not suspended for a definite time as a matter of discipline.

The case was tried by the court without the aid of a jury on November 17, 1914, and judgment was rendered in favor of the defendant insurance company.

Plaintiff in error’s first, second, third, and fourth assignments complain of the court’s action in overruling her special exceptions to the pleadings of defendant in error. These assignments are without merit, and are overruled.

The fifth and seventh assignments of error complain of the admission in evidence of the testimony of the witnesses Young and Harvey. The evidence of these witnesses was to the effect that all delinquent members were duly notified by written notice in regular form, sent to them through the post office. The introduction of this testimony was objected to on the ground that the defendant, in its pleadings, had not alleged that it had ever given the insured any notice of his suspension, nor did he plead that the insured had been suspended, in accordance with the by-laws of the association. In its first supplemental petition the allegation is made that plaintiff had no notice that dues ánd assessments had not been paid, and that Thos. R. Cole had been suspended and his certificate forfeited. In view of the allegations contained in the plaintiff’s pleadings, it was not necessary for defendant to set up the fact of notice. Plaintiff alleges specifically the duty of the defendant to notify Thos. R. Cole, and negatives the fact that any such notice was given by the defendant, its officers or agents, to either Cole or plaintiff. It is an elementary rule of pleading that facts alleged by one party need not be alleged by the other. These assignments are overruled.

The sixth assignment is that the court erred in overruling plaintiff’s objections to the testimony of Young, to the effect that Thos. R. Cole, when asked by the witness to pay his July assessment, said that he would not keep it up, or did not want to keep it up. The objection to this testimony is that such a declaration, made by the insured as to his intention of keeping up dues, was not admissible against the beneficiary. By statutory provision in this state the beneficiary in a mutual benefit life association has no vested interest in the contract of insurance until the death of the insured. Vernon’s Sayles’ Civil Statutes, art. 4832; Coleman v. Anderson, 98 Tex. 570, 86 S. W. 730. By the great weight of authority, the further rule is established that where the beneficiary in an insurance contract has no vested interest until after the death of the insured, declarations of the insured are admissible against the beneficiary to prove forfeiture. Callies v. Modern Woodmen, 98 Mo. App. 521, 72 S. W. 713; Fidelity Mutual Life Ass’n v. Winn, 96 Tenn. 224, 33 S. W. 1045; Bacon’s Benefit Societies and Life Insurance (3d ,Ed.) § 460, p. 1177; Niblack on Benefit Societies, §§ 212, 325; Cooley’s Briefs on Insurance, p. 2431, note. In the Callies Case, supra, the court said:

“The theory upon which the trial court sustained plaintiff’s objections to the deceased’s declarations [naming them] was that such declarations could not bind these plaintiffs as beneficiaries. We think the theory unsound, and that error was committed. The weight of authority, as regards ordinary life insurance, is that the declarations of the party insured are not evidence against the person for whom the insurance is taken, and the rule is so stated in a remark in the course of a decision by the Supreme Court of this state. * * * But as to fraternal benefit insurance, where the beneficiary is named by the insured, and whom he may change at any time before death, a well-founded distinction exists, for there is no vested interest in the beneficiary in the certificate until it becomes fixed by death. * * * It is true that neither has the insured member himself1 an interest in the fund; * * * still he is the opposite party in the contract. He has made it from the motive of duty or affection, and he is interested in its being upheld. His declarations of things tending against the contract would likely not have been made if not true. They should be received in evidence. They should be regarded as in instances of contract, where the representative of the declarant is a party to the action, and so it has been decided.”

In the case of Eidelity Mutual Ass’n v. Winn, supra, the Supreme Court of Tennessee said:

“The assured in such a policy being the real party in interest, it follows that ‘no harm can possibly result from giving full effect to his admissions. He may be supposed to best know the extent of his own rights and to be least of all disposed to concede away that which actually belonged to him.’ * * * Under well-settled rules, his subsequent declarations against his interest were competent testimony, and plaintiff in error had the right to put them in evidence.”

The Supreme Court of Kentucky, in Knights of Maccabees of the World v. Shields, 156 Ky. 270, 160 S. W. 1046, 9 L. R. A. (N. S.) 853, discussed at some length the authorities pro and con, and concludes from a review thereof that the rule, excluding the declarations of the insured which tended to affect the rights of the beneficiary, should not be applied to policies issued by benefit or fraternal associations. We think the evidence was admissible, and the assignment is overruled.

The first proposition under the eighth assignment is that, the defendant in error not having pleaded the giving of notice to establish forfeiture, it was error to admit testimony tending to show that notice had been given. This question has already been disposed of by the statement above that the evidence was admissible under plaintiff’s plead"ings.

The second proposition under this assignment, which is based upon the admission of the testimony of the witness Young, showing what action was taken by the lodge and by witness as the record keeper thereof, toward suspending Thos. R. Cole under the provisions of the by-laws above stated, is not germane to the assignment because the objection made to the evidence did not include the question urged in the proposition.

The ninth assignment appellant alleges is based on the eighth paragraph of the plaintiff in error’s motion for new trial. Reference to the motion shows that it does not present the same question, and cannot be considered for the further reason that it is not a copy of the assignment in the motion for new trial. The rule is established in this state that, while a motion for new trial is not necessary in cases tried before the court without a jury, nevertheless, when a motion has been filed in such a case, the errors assigned in the court below must be the errors urged in this court. Edwards v. Youngblood, 160 S. W. 288; Bradshaw v. Kearby & Kearby, 168 S. W. 436; E. G. Rail Grain Co. v. Burks-Simmons Co., 171 S. W. 1043.

Appellant contends that the sections of the by-laws set out in the beginning of this opinion are confusing and susceptible of two constructions, and for that reason the rule announced in Goddard v. East Texas Fire Insurance Co., 67 Tex. 71, 1 S. W. 906, 60 Am. Rep. 1, to the effect that under such conditions an interpretation must be given the language which is most favorable to the beneficiary, should apply. Section 330 is clear in its provision that a life benefit member, who fails to pay any monthly rate within the month, on the first day of which it is due, shall be suspended without notice from all rights of life benefit membership. This provision is unequivocal,' and the evidence in the record is sufficient to sustain the judgment of the court based upon it. Even though we should admit that some of the sections quoted are obscure in their language, they had no bearing upon the issue of the case relating to the failure of the assured to pay his monthly rate.

The judgment is affirmed.

On Motion for Rehearing.

Plaintiff in error insists, first, that forfeiture was not set up, and under the rule announced in Mullen v. Mutual Life Insurance Co., 89 Tex. 259, 34 S. W. 605, evidence of notice should not have been admitted. The decision in the Mullen Case is based upon a New York statute, which provides that no life insurance company doing business in that state should declare forfeited any policy by reason of nonpayment of an annual premium, unless a notice in writing should be duly mailed to the assured not less than 30 days before each payment was due. If the rule announced had any application to this case, we think the pleadings are sufficient to authorize the introduction of the testimony. We did not, however, base our affirmance of the judgment upon the question of notice. Section 330 of the by-laws provides for the suspension of a member without notice, who has failed to pay a monthly rate, per capita tax, or additional assessment; and section 331 does not require the service of any notice of forfeiture upon the assured, but provides that after the member has been suspended, under section 330, the fact of such suspension must be reported to the Supreme Record Keeper, and that the record keeper shall report the name' of each member so suspended to the tent at its next regular review. Section 332 merely provides that when • a member has failed to pay his tent dues or any fine or special assessment for a period of 30 days after the same is due, he shall be reported in open tent by the record keeper, and that before making such report the record keeper shall notify such member to pay the amount. This section has no reference whatever to the failure on the part of a member to pay the monthly rate, per capita tax, or additional assessment. These matters are controlled by the provisions of sections 330 and 331. We did not even intimate that the language of any of the sections was obscure. On the contrary, we think they are clear and explicit.

Section 330 provides that the member shall stand suspended without notice; and, even though we should hold that the court erred in admitting the testimony tending to show that notice was given by Young, the error is harmless. As we construe sections 330 and 331, no affirmative action on the part of defendant in error was necessary in order to forfeit the certificate. The failure of the member to make the required payment ipso facto worked a forfeiture.

The motion is, in all things, overruled.
      itooFor c tiier eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    WESTERN UNION TELEGRAPH CO. v. SMITH et al.
    (No. 1009.)
    (Court of Civil Appeals of Texas. Amarillo.
    June 27, 1916.
    On Motion for Rehearing, Oct 18, 1916.)
    1. Telegraphs and Telephones <§=>27 — Negligent Delay in Delivery — Recovery eor Mental Suffering — Law Governing.
    In suit for negligent delay in delivering a telegram, the law of the state where the message was sent and the contract for transmission made governed the question of whether damages for mental suffering without physical injury were recoverable.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 80; Dec. Dig. <§= 27.]
    2. Damages <§=2 — Action oe Tort — Law Controlling.
    In an action for tort, the law of the place where the wrong or tort was committed controls on the question of damages.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. § 2; Dec. Dig. <§=2.]
    3. Commerce <§=8 — Interstate Commerce Act — Application to Interstate Messages.
    If, by Act Cong. June 18, 1910, c. 309, 36 Stat. 539, amending Interstate Commerce Act, Feb. 4, 1887, c. 104, 24 Stat. 379, subjecting telegraph companies to the provisions of the act, Congress has taken full charge of the subject, the sender of an interstate telegram which is negligently delayed in delivery cannot recover for mental suffering from the company, a right gvien by statute in Texas.
    [Ed. Note. — For other cases, see Commerce, Cent. Dig. § 5; Dec. Dig. <§=8.]
    On Motion for Rehearing.
    4.Telegraphs and Telephones <§=68(2)— Negligent Delay — Damages—Law oe New Mexico.
    Under Const. N. M. art. 22, § 4, providing that all laws in force before admission of the territory remain in full force and effect as the laws of the state until altered or appealed, in an action against a telegraph company for negligently delaying delivery of a message, recovery for mental anguish, apart from physical injury, cannot be had, such having been the common law in force in the state as a territory, and there having been no alteration in the law.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 69; Dec. Dig. <§= 68(2).]
    Appeal from District Court, Swisher County; R. C. Joiner, Judge.
    Action by Ada Smith and E. D. Smith against the Western Union Telegraph Company. Judgment for plaintiffs, and defendant appeals. Motion for rehearing.
    Former judgment set aside, and opinion withdrawn, and judgment for plaintiffs reversed and rendered for defendant.
    Jno. W. Yeale and W. A. Davidson, both of Amarillo, and Albert T. Benedict, of New York City, for appellant. W. F. Hendrix, of Tulia, for appellees.
   HUFF, C. J.

The appellee Mrs. Ada' Smith, joined by her husband, E. D. Smith, instituted suit against the appellant for failure to deliver a telegram sent from Artesia, N. M., to Judge C. F. Kerr, at Dimmitt, as follows:

“Ada coming. Have conveyance meet her at Hereford. ‘Phone Hereford [Signed] E. D. Smith.”

Mrs. Smith’s brother was killed .at Dimmitt and the allegations show that on the evening previous to the sending of the telegram that Kerr had talked with E. D. Smith over the phone, requesting Mrs. Smith to be at the funeral the next day, at 5 o’clock. Mrs. Smith at that time was not very well, but Smith notified Kerr that she was able to go, and that he would wire him the next-morning, which he did, notifying the agent receiving the telegram of the necessity in prompt delivery of the message; that the message was not delivered, and no one was at Hereford to meet Mrs. Smith, as requested, and as a consequence she was unable to be at the funeral, being unable to get a con-‘ veyance out of Hereford for Dimmitt in time to be present; that if the message had been promptly delivered, as appellant undertook to do, that she could and would have been present at the funeral.

Among other defenses interposed by appellant was a plea, alleging that under the laws of the state of New Mexico, where the contract was made, damages were not recoverable on account of mental anguish in cases of this kind, where there was no physical injury.

We believe tbe evidence offered being un-controverted in its nature as to tbe law of New Mexico, as to tbe truth of tbe plea by appellant, by a disinterested lawyer of New Mexico, of some 28 years’ experience, and tbe Quotation by bim of section 4, art. 22, of tbe Constitution of that state, to tbe effect that all laws in force in tbe territory of New Mexico before admission into tbe Union, remained in full force and effect as tbe laws of tbe state, and “from tbe decisions of Leitsendorfer v. Webb, 1 N. M. 34—53, also Sandoval v. Albrigbt, 14 N. M. 345, 93 Pac. 717, bolding to tbe effect that tbe common law was extended over tbe territory so far as relates to tbe regulation and control of proceedings of tbe Supreme and District Courts in determination of causes, and tbe law was declared by tbe final tribunal of tbe territory previous to tbe Constitution and admission of tbe territory into tbe Union, by tbe Circuit Court of Appeals of tbe Eighth District for the United States, in tbe case of Western Union Telegraph Co. v. Burris, 179 Fed. 92, 102 C. C. A. 386, to tbe effect that damages were not recoverable for mental anguish unaccompanied by personal injury.

Tbe appellant requested a special charge, instructing a verdict for it, which was refused and assigned as error; and also a charge to tbe effect that if tbe jury should find from tbe evidence that there was no law in New Mexico, authorizing recovery for mental suffering as damages, to return a verdict for tbe appellant. These charges were refused by tbe trial court, and exception reserved thereto and assigned here as error.

We regard tbe testimony as uneontroverted and as establishing that tbe law in New Mexico at the time of tbe sending of tbe message was as alleged; and that being tbe place of the contract, under tbe authorities of this state, tbe court should have instructed tbe jury as requested. Telegraph Co. v. Waller, 96 Tex. 589, 74 S. W. 751, 97 Am. St. Rep. 936; Telegraph Co. v. Buchanan, 35 Tex. Civ. App. 437, 80 S. W. 561; Telegraph Co. v. Cooper, 29 Tex. Civ. App. 591, 69 S. W. 427; Ligon v. Telegraph Co., 46 Tex. Civ. App. 408, 102 S. W. 429; Telegraph Co. v. Garrett, 46 Tex. Civ. App. 430, 102 S. W. 456.

In tbe original opinion, it was our view that the action was for negligence in failing to deliver tbe telegram in Texas and that tbe cause of action was really ex delicto; and we understood that our Supreme Court, in Stuart v. Telegraph Co., 66 Tex. 580, 18 S. W. 351, 59 Am. Rep. 623, so decided. Being a tort, committed in tbe state of Texas, where such damages could be recovered, tbe law of tbe place of the wrong or tort should control; but tbe authorities above cited- appear to bold to tbe contrary, and the rule in this state, as we gather from tbe decisions, is that tbe place of tbe contract will control tbe maximum amount of damages which may be recovered. We, perhaps, bad in mind tbe rule of tbe United States Supreme Court, that in order to maintain an action of tort, founded upon an injury to tbe person, or to property and not upon a breach of contract, tbe act which is tbe cause of the injury, and tbe foundation of tbe action, will be governed by tbe law of tbe place in which it was done. Huntington v. Attrill, 146 U. S. 657, 13 Sup. Ct. 224, 36 L. Ed. 1123, Telegraph Co. v. Brown, 234 U. S. 542, 34 Sup. Ct. 955, 58 L. Ed. 1457. However, whatever tbe rule may be in other jurisdictions, it appears to be established in this state, as above pointed out.

Tbe case also presents tbe issue whether interstate messages, under tbe amendment of the Interstate Commerce Act, June 18, 1910, by which telegraph companies are subject to tbe provisions of that act, tbe Congress has taken full charge of tbe subject? This message, under tbe act, was interstate. Tbe question, therefore, is, whether Congress has clearly manifested a purpose to supersede or suspend tbe exercise of tbe police powers of tbe states with reference to this particular subject. Tbe Courts of Civil Appeals for tbe Sixth and Eighth Districts apparently have answered this question in tbe negative. Bailey v. Telegraph Co., 171 S. W. 839; Telegraph Co. v. Schoonmaker, 181 S. W. 263. In tbe latter case, however, mental anguish does not appear to have been considered. In tbe former case, Mr. Justice Hodges discusses tbe effect of tbe act and reached tbe conclusion, as we understand tbe opinion, that tbe act will not deprive tbe state rule of its former force, even on interstate messages. He reviews at some length tbe case of W. U. Telegraph Co. v. Brown, 234 U. S. 542, 34 Sup. Ct. 955, 58 L. Ed. 1457. As we gather from tbe opinion, Judge Hodges reached the conclusion that it was not tbe purpose of that case to bold that Congress intended to supersede tbe law of tbe states on failure to deliver interstate messages.

Tbe Supreme Court of Arkansas, in tbe case of W. U. Telegraph Co. v. Johnson, 115 Ark. 564, 171 S. W. 859, held that action for mental anguish, under tbe law of that state, will not lie for tbe failure to deliver an interstate message. W. U. Telegraph Co. v. Compton, 114 Ark. 193, 169 S. W. 946; W. U. Telegraph Co. v. Stewart (Ark.) 179 S. W. 813. That court interprets tbe Brown Case as bolding that tbe Interstate Commerce Act will control.

In Virginia (W. U. Telegraph Co. v. Bilisoly, 116 Va. 562, 82 S. E. 91) it was held in so far as interstate business was concerned, tbe act in question placed telegraph companies under tbe direct supervision of tbe Interstate Commerce ’Commission, rendering inapplicable tbe state statutes imposing a penalty for failure to promptly transmit messages. There are some distinctions in tbe cases cited, which may be made from tbe case rendered by Judge Hodge. We must confess that Judge Hodge’s position is strongly argued and fortified by reason and authority, but it appears to us the statement in the Brown Case, supra, while not necessary to that decision, is strongly persuasive that the Supreme Court of the United States bolds to the view that Congress has taken charge of the matter relating to interstate messages and with reference to receiving and sending such messages, and the rule in that court will hence determine the liability of the parties under the well-recognized rulings of that court, under the common law, as interpreted by it; and if that is the holding of the Supreme Court, as held in Arkansas, a recovery could not be had in this case for mental anguish.

The judgment heretofore entered, affirming that of the court below, will be set aside, and the opinion rendered thereon withdrawn. Judgment is here ordered that the appellant’s motion for rehearing be granted, and the judgment of the trial court be reversed and here rendered that the appellees take nothing by their suit. The jury, under the issues submitted, found $300 for mental anguish, and nothing for the amount paid for the transmission of the message, or for other special damages alleged, and the judgment of the* court being for the sum of $300, it is the judgment of this court that appellees take nothing by reason of their suit, and that appellant recover its costs in the court below, as well as the costs in this court.

Reversed and rendered.

On Motion for Rehearing.

Appellees insist, in their motion for rehearing, that there is no evidence that the law in New Mexico, as a state, does not allow recovery for damages on account of mental anguish. While it was a territory it was held in the district, of which it was then a part, that under the common law a recovery for mental anguish alone could not be had. The witness for appellant testified there had never been a statute or decision of New Mexico authorizing a recovery for mental anguish. The common law was' in force in New Mexico as a territory and is shown to be still in force therein as a state. By virtue of the Constitution, under the section mentioned in the opinion, all laws in force in the territory remain in force as the laws of the state until altered or repealed. The evidence shows the laws with reference to this subject have not since been altered or repealed. This court practically held in Telegraph Co. v. White, 162 S. W. 905, that under the holding in the Burris Case mental anguish would not be an element of actual damage, and under the common law as construed by the federal courts no recovery could be had therefor in New Mexico. This being the law when New Mexico became a state it continued in force under the state Constitution until altered or repealed. Under the evidence it is uncontroverted that this law has never since statehood been altered or repealed.

On the other questions raised, that is, whether the ease will fall under the federal act regulating interstate messages, we wish at this time to correct the statement in the original opinion that the Eighth district, in the Sehoonmaker Case, 181 S. W. 263, held that -messages from one state to another would not be controlled by the federal act. The court in that case appear to concede that in such messages that court would be controlled by the federal law. We prefer at this time to base our opinion upon the grounds first stated in the opinion filed and without any definite holding on the question as to interstate messages. The Sixth district has again passed upon the Bailey Case and adheres to its former view, holding, as we understand, that Congress has not, by the. act, assumed exclusive control of interstate messages, and therefore mental anguish may be recovered for breach of such message under proper conditions. Telegraph Co. v. Bailey, 184 S. W. 519, in which case it appears that an application for writ of error is yet pending in our Supreme Court.

We find an interesting discussion of the question in the case of Telegraph Co. v. Bank of Spencer, 156 Pac. 1175, by the Oklahoma Supreme Court. With these references, we prefer to leave the federal question for future determination.

For reasons first stated, we overrule the ap-pellees’ motion for rehearing.
      <§=For otlier cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes