text:
    ÆTNA INS. CO. v. WACO CO.
    (No. 5658.)
    (Court of Civil Appeals of Texas. Austin.
    Oct. 11, 1916.)
    1. Insurance &wkey;>336(6) — Policy—Construction — Forfeiture.
    A provision in a policy that it should be void, in the absence of agreement, if insured procured other insurance on the property covered, was not nullified by a concurrent insurance clause which did not provide for forfeiture for its violation, since both clauses should be construed together.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 871; Dec. Dig. &wkey;336(6).]

      2. Constitutional Law <&wkey;276 — Depriving of Right of Contract — “Due Process of Law.”
    Acts 33d Leg. c. 106 (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 4874a, 4874b), being “An act to prevent fire insurance companies from avoiding liability for loss to personal property under technical provisions of the policy,” providing that no breach by the insured of any of the provisions of any fire policy shall render void the policy or constitute a defense to a suit for loss thereon, unless such breach contributed to bring about the destruction of the property, does not violate the Constitution of Texas, and of the United States by depriving an insurance company of the right of contract and. taking its property without “due process of law.”
    [Ed. Note. — Eor other cases, see Constitutional Law, Cent. Dig. §§ 846, 846; Dec. Dig. <&wkey;> 276.
    Eor other definitions, see Words and Phrases, Eirst and Second Series, Due Process of Law.)
    3. Insurance <&wkey;302 — Eire Insurance — “Technical” Breach of Policy — Statute— “Immaterial.”
    Acts 33d Leg. c. 105 (Vernon’s Sayles’. Ann. Civ. St. 1914, arts. 4874a, 4874b), entitled “An act to prevent fire insurance companies from avoiding liability for loss and damage to personal property under technical and immaterial provisions of the policy,” where the breaching thereof has not contributed to bring about the loss, is constitutional; the word “technical,” as used in the caption, being synonymous with immaterial, so that the effect of the act is to declare as a matter of law all restrictive provisions in an insurance policy on personal property immaterial, unless they have contributed to bring about the destruction of the property.
    [E'd. Note. — For other cases, see Insurance, Dec. Dig. &wkey;>302.
    For other definitions, see Words and Phrases, First and Second Series, Immaterial; Technical.]
    4. Statutes <&wkey;116 — Title — Constitutionality.
    Acts 33d Leg. c. 105 (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 4874a, 4874b), entitled “An act to prevent fire insurance companies from avoiding liability for loss and damage to personal property under technical and immaterial provisions of the policy or contract of insurance where the act breaching such provision has not contributed to bring about the loss,” providing that no breach by the insured of any of the provisions of any fire insurance policy upon personalty shall render void the policy or constitute a defense to a suit for loss thereon, unless such breach contributed to bring about the destruction of the property, does not violate the constitutional provision (Const, art. 3, § 35), that no bill shall contain more than one subject expressed in its title, although construed to render inoperative as a “technical” and immaterial provision, a policy provision forfeiting the policy for taking out additional insurance; such construction not giving the act a broader meaning or scope than its caption or title.
    [Ed. Note. — Eor. other cases, see Statutes, Cent. Dig. §§ 152-154; Dec. Dig. &wkey;116.)
    Error from District Court, McLennan County; Tom L. McCullough, Judge.
    Action by Levy & Rosen against the iEtna Insurance Company, in which the Waco Company intervened. Judgment for intervener and defendant brings error.
    Affirmed.
    Thompson, Knight, Baker & Harris, Will C. Thompson, and Geo. S. Wright, all of Dallas, for plaintiff in error. W. L. Eason, of Wlaco, for defendant in error.
   Findings of Fact.

JENKINS, J.

On August 12, 1914, the plaintiff in error issued to Levy & Rosen an insurance policy for $1,000, which limited the concurrent insurance allowed to $6,000. The insured then had, including this policy, $6,000 insurance on said property. On September -, 1914, the insured procured $2,000 additional insurance on said property. On September 16, 1914, the property was partially destroyed by fire; the loss being $6,736.97. Levy & Rosen filed suit to recover of plaintiff in error one-eighth of this amount; the total insurance being $8,000, and the policy herein sued on being for $1,-000. The plaintiff in error pleaded in bar a violation of the contract by obtaining additional insurance. Plaintiffs rejoined that the agreement not to obtain additional insurance was a technical and immaterial provision of the contract, and that the violation of the same constituted no bar to recovery. The Waco Company intervened, alleging that the policy sued on had been assigned to it, and adopted the pleadings of plaintiff. Judgment was rendered for interveners as prayed for, from which appeal has been duly perfected.

Opinion.

We do not agree with the contention of defendants in error that the action of the court in not allowing the evidence offered by plaintiff in error to the effect that the policy had been violated by securing the additional insurance without the knowledge or consent of plaintiff in error was not erroneous, for the reason that it appeared from the answer herein that such .additional insurance had been obtained and that the policy did not provide for forfeiture by reason of such additional insurance, in that the forfeiture clause reads as follows:

“This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if the insured now has or shall hereafter make or procure any other contracts of insurance, whether valid or not, on property covered in whole or in part by this policy.”

And that this provision was nullified by the concurrent insurance clause which did not provide for forfeiture for its violation, and which reads as follows:

“Total concurrent insurance permitted, including this policy $6,000, as follows: $6,000 on stock and furniture and fixtures. It is understood and agreed that no other insurance is permitted unless the total amount allowed, including this policy, is entered in blank space in paragraph next above.”

These two clauses should be construed together, so as to give effect to both; and, so construed, they mean that no additional insurance shall be allowed except enough -to make $6,000 concurrent insurance and any additional amount shall iorfeit the contract for the $1,000 for which this policy is written.

We think that the testimony offered by plaintiffs in error with reference to the additional insurance, as shown by its bill of exception, was material and was sufficient to defeat the plaintiff’s and intervener’s cause of action, if the act of the Thirty-Third Legislature (chapter 105, p. 194) is unconstitutional; as contended by plaintiffs in error, which contention was overruled by the trial court. The constitutionality of said act is here presented by plaintiff in error under a proper bill of exceptions and assignment of error.

Plaintiff in error in its assignments of error contends that said act is unconstitutional:

“First. That the subject contained in the body of the act is not expressed in the caption, as required by section 35, art. 3, of the Constitution of the state of Texas.
“Second. Because said act deprives the defendant of the right of contract, and is taking his property without due process of law under the Constitution of Texas and of the United States.
“Third. And, further, that if said law has any validity, it can have no broader meaning or scope than its caption or title, which means that said law only applies to technical and immaterial provisions, and the provision of the policy forbidding additional insurance is a material and nontechnical provision of said policy as a matter of law, or in any event, the question of the material and nontechnical nature was a question of fact for the jury.”

We do not think that there is any force in the second reason assigned for the unconstitutionality of the act above stated. While it is the duty of a court to declare a law unconstitutional in a proper case, this should never be done except in a clear case. It has been said by highest authority that courts “should never declare a statute void unless its invalidity is, in their judgment, beyond reasonable doubt.” See 6 R. G. L. p. 75, and authorities there cited.

The constitutionality of this act was upheld by the Galveston Court of Civil Appeals in the case of Insurance Co. v. Fine-gold, 183 S. W. 833.- We concur in that decision, to which reference is here made for a statement of the constitutional provision relied on and the act, including its caption. We think that the word “technical,” as used in the caption, is synonymous with immaterial, and that the effect of the act is to declare, as a matter of law, all restrictive provisions in an insurance policy on personal property immaterial, unless they have contributed to bring about the destruction of the property.

The relation of the caption to the body of an act has been so often and so learnedly considered that we do not feel that we could add anything to the discussion; and therefore we will not undertake to review the numerous cases on this subject cited by the learned counsel for plaintiffs in error. Suffice it to say that, after carefully reading the same, we do not think that they are applicable to the case at bar, or, at least, the application of the principles of law therein declared do not require us to hold the act under consideration unconstitutional.

For the reasons stated, the judgment of the trial court is affirmed.

Affirmed.
      <@^>For other cases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes

      <£c^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: KEN, C. J.

license: Public Domain

text:
    BARTON v. McGUIRE.
    (No. 5672.)
    (Court of Civil Appeals of Texas. Austin.
    Oct. 18, 1916.)
    1. Evidence &wkey;271(9), 314(1) — Heaesat — Self-Serving Declarations.
    In an action against a realty broker by the owner of land to recover the difference between the price actually paid and the price at which he accounted to the owner, though it was a controverted question whether the broker sold as the owner’s agent, or whether he verbally contracted with the owner to'purchase the land at the lower price, and thereafter sold it himself to the buyer for the higher price, and it was also a controverted question whether the broker agreed with the owner to deposit with a bank the sum of $1,000 as earnest money, and whether or not he made such deposit, the court properly excluded testimony that, when he made such deposit, the broker stated that he had that day bought the property from the owner at the lower price, and was depositing the $1,000 as earnest money pursuant to verbal agreement; the evidence being hearsay and the statements self-serving.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1078, 1168; Dec. Dig. <&wkey;>271(9), 314(1).]
    2. Evidence <&wkey;121(6) — Statements of Party — Res Gestas.
    The statements made by the broker, when depositing his $1,000 check in bank, and on the same day, that he had that day verbally bought the land from the owner over the telephone, and was depositing the money as earnest, were not so connected in point of time or otherwise.with the transaction between broker and owner as to render them admissible as res gestae.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 316, 1117, 1119; Dec. Dig. <&wkey;> 121(6).]
    3. Evidence &wkey;271(9), 314(1) — Hearsay — Self-Serving Declarations.
    A conversation between the broker and an attorney, shortly after the telephone conversation, in which the broker told the attorney that he had made such a telephone contract with the owner, and its terms, was inadmissible as hearsay and self-serving.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1078, 1168; Dec. Dig. <&wkey;>271(9), 314(1).]
    4. Appeal and Error &wkey;>10U(l) — Review— Findings — Conflicting Evidence.
    Appellate courts do not undertake to determine what constitutes a mere preponderance of testimony, and do not set aside findings of trial courts on conflicting evidence, unless they are so contrary to the overwhelming weight of the testimony as to indicate some improper motive or influence.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3983-3988; Dec. Dig. &wkey;3 1011(1).]

      5. Bkokers <&wkey;36 — Ratification of Agent’s Fraud.
    Though the owner, without notice of the broker’s fraud, accepted from him money for an excess in acreage, transferred notes executed by the broker as part of the consideration for the land, and executed a new deed, he did not thereby ratify the broker’s acts.
    [Ed. Note. — For other casos, see Brokers, Cent. Dig. §§ 29, 30; Dec. Dig. <&wkey;>36.]
    0. Estoppel <&wkey;92(3) — Estoppel in Pais.
    Nor did such facts constitute an estoppel of the owner to sue the broker.
    [Ed. Note. — For other cases, see Estoppel, Cent. Dig. § 262; Dec. Dig. &wkey;92(3).]
    7. Appeal and Error t&wkey;1151(2) — Disposition — Correction of Judgment.
    The facts in respect to the amounts received by the broker and his commission being undisputed, error committed in rendering judgment for an excessive amount will be corrected by the Court of Civil Appeals without remanding for new trial.’
    TEd. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4498 — 4500, 4503 — 4505; Dec. Dig. &wkey;1151(2).]
    Appeal from District Court, Lampasas County; John D. Robinson, Judge.
    Suit by W. H. McGuire against L. R. Barton. From a judgment for plaintiff, defendant appeals.
    Judgment reformed and affirmed.
    Matthews & Browning, of Lampasas, Dayton Moses, of Ft. Worth, and T. E. Hammond, of Burnet, for appellant. Word & Walker and M. M. White, all of Lampasas, for appel-lee.
   KEN, C. J.

W. H. McGuire was the owner of a farm and ranch situated in Burnet county and embracing 1,235.7 acres of land. On the 31st day of December, 1913, he entered into a written contract with' L. R. Barton, a real estate broker at Bertram, Tex., by the terms of which he listed the property with Barton for sale. That contract was somewhat ambiguous as to the minimum price for the land and Barton’s compensation for selling it, but perhaps was susceptible of the construction that Barton was to have as compensation all that he sold the land for in excess of $12.50 per acre. In February, 1914, Barton prepared and sent by mail to McGuire a supplemental contract, modifying the original contract in reference to some of the terms upon which the sale might be made, but not otherwise modifying that contract. McGuire received that contract, added to it a stipulation that the land must net him at least $12.50 per acre, and that Barton was to get his 5 per cent, commission from the sales price of the land. In other words, the addition which McGuire wrote into the supplemental contract deprived Barton of his right to all the excess over $12.50 per acre for which .he might sell the land, and stipulated, in effect, that he would receive no compensation unless he sold the land for more than $12.50 per acre, and was then to have 5 per cent, of the total consideration, and not that much, if it would result in reducing the amount received by McGuire to less than $12.50 per acre. McGuire then returned the supplemental contract to Barton, and there is conflict in the testimony as to whether he accepted it and acted upon it or repudiated it on account of the additional clause written therein by McGuire. In February, 1915, McGuire instituted this suit against Barton, alleging that the latter, while acting as plaintiff’s agent, had fraudulently induced the plaintiff to convey the land to him (Barton), and had immediately sold the land to one J. E. Howze for $18 per acre. In his answer Barton denied that he ever assented to or acted upon the supplemental contract of February 25, 1914, and further alleged that on February 28, 1914, he entered into a contract over the telephone with the plaintiff for the purchase of the land by the defendant at $12.50 per acre, which contract, he alleges, was carried out and put in writing on March 6, 1914, on which day the plaintiff conveyed said land to the defendant, who paid plaintiff therefor in cash and notes as agreed on in the telephone contract. Appellant testified that he bought the land from appellee as alleged in his answer. Appellee testified to the contrary. There was a nonjury trial, which resulted in a judgment for the plaintiff for $5,684.22, and the defendant has prosecuted an appeal;

The trial judge filed the following findings of fact and conclusions of law;

“Findings of Fact.
“(1) I find that on December 31, 1913, and at the other dates hereinafter mentioned, the defendant was engaged as a real estate agent at Bertram, Burnet county, Tex.
“(2) That on said December 31, 1913, the plaintiff listed the land described in plaintiff’s petition with the defendant for sale upon the terms as specified therein, and in said contract specified that said land was to net the plaintiff $12.50 per acre, agreeing therein to pay said Barton a commission of 5 per cent, of the’ sales price of said land.
“(3) That thereafter, on the 25th day of February, 1914, the defendant sent to the plaintiff an additional or supplemental contract of sale, and at the same time requested that plaintiff give him an option on said land.
“(4) That plaintiff refused to give an option on said land to defendant.
“(5) That plaintiff signed said supplemental or additional contract after ’having added therein a clause that said land was to net plaintiff t*he sum of $12.50 per acre, the defendant to receive his commission of 5 per cent, on the sales price of said land.
“(6) I find that at the time of the sale of plaintiff’s land as hereinafter stated the defendant was acting under and by virtue of said supplemental contract.
“(7) I further find that thereafter, on the 28th day of February, 1914, the defendant by telephone advised the plaintiff that he had a purchaser for said land, the defendant at that time being in Burnet county, 'and the plaintiff in Lampasas, Lampasas county, Tex.
“(8) That on the 1st day of March, 1914, plaintiff met defendant on said land in Burnet county, Tex., and advised defendant that he would sell tlie land at the price of $12.50 per acre, and discussed the terms and conditions of said sale with the defendant.
“(9) Thereafter, on the 4th day of March, 1914, the defendant, being in Austin, Tex., wired the plaintiff at Lampasas, Lampasas county, Tex., ‘deal closed on your ranch with $2,000 terms about as agreed on February 28th, but some better, please make deed and abstract at once.’
“(10) That thereafter, on the 6th day of March, 1915, defendant came to Lampasas, Lampasas county, Tex., and represented to plaintiff that he had sold said land to one J. E. Howze at Austin, Tex., at the price of $12.50 per acre, but that before said deal could be closed that it would be necessary for the liens existing against plaintiff’s said land to be removed, or placed in notes to suit the purchaser, and that in order to protect the defendant in his forfeit of $1,000 it would be necessary for plaintiff to execute his deed to defendant and place same in. the bank to protect the loan.
“(11) That on March 6, 1914, plaintiff so executed his deed and placed same in the bank as directed by defendant.
“(12) That thereafter said deed was returned to plaintiff to make some changes in same, and on May 20, 1914, was re-executed and delivered to defendant.
“(13) That plaintiff received for said property the sum of $15,446.25.
“(14) That on the 22d day of May, 1914, defendant conveyed said premises to said J. E. Howze for the sum of $22,242, being $5,684.22 more than defendant had represented to plaintiff he was getting for said land, less the 5 per cent, commission due the defendant.
“(15) I further find that plaintiff did not ascertain that defendant had received said sum for said land until after he had executed his deed to defendant and until after defendant had transferred said property to the purchaser, Howze.
“(16) I further find that during the pendency of said sale plaintiff discovered that there were 3.7 acres more in his said place than he had specified in his said sales contract, and that defendant had agreed to secure from the purchaser the sum of $12.50 for said excess.
'“(17) That after said sale was closed, and before plaintiff was informed of the facts as to how much defendant had received for said land, plaintiff wrote to defendant requesting that defendant remit said sum of $12.50 per acre for said excess.
“(IS) That defendant on May 29, 1914, and on June 2, 1914, advised plaintiff by letter that he had been unable to collect said sum of $12.50 per acre for said excess from said J. E. Howze.
“(19) That thereafter, on or about June 8, 1914, plaintiff wrote to defendant advising him that he had learned that defendant had secured $18 per acre for said land, and demanded that defendant remit to him the balance of the purchase price of said land less his (defendant’s) commission of 5 per cent, on the sales price of same.
“(20) That thereafter on June 10, 1914, the defendant remitted to plaintiff said sum of $12.50 per acre for said excess.
“(21) I find that plaintiff retained said sum of $12.50 per acre for the excess in said land after full knowledge of the facts of defendant’s having sold the same for $18 per acre, and further that defendant had prior thereto transferred said land to Howze.
“(22) I find that after plaintiff had received knowledge of the facts of the sale to Howze, he (plaintiff) sold or exchanged some of the purchase-money notes for said property, and also received from J. E. Howze the payment of two of said notes.
“(23) I find that J.E. Howze was an innocent purchaser of said property for value with no knowledge of the fraud of the defendant.
“Jno. D. Robinson, Judge.
“Conclusions of Law.
“I therefore conclude as a matter of law that the act of plaintiff in receiving said sum of $12.-50 per acre for the excess in said land and in transferring certain of said notes and receiving payment of two of same was not a ratification of the fraud of defendant. I therefore conclude as a matter of law that plaintiff should recover of and from the defendant the sum of $5,684.22, with interest thereon from May 21, 1914, at the rate of 6 per cent, per annum, anil all costs of suit. Jno. D. Robinson,’ Judge.”

Thereafter, in response to appellant’s application therefor, the judge filed the following additional findings:

“(1) I find that defendant did not on February 28, 1914, in a telephone conversation between plaintiff and defendant, propose to buy from plaintiff the land in question at $12.50 per acre, and find that such a trade was not consummated on that day between plaintiff and defendant in so far as same could be consummated in the conversation over the phone, or at any time thereafter.
“(2) I find that plaintiff did not agree to execute a deed to defendant on March 1, 1914, and did not agree to send the same on the 2d day of March, 1914, to the bank of T. ,S. Reed & Son at Bertram.
“(3) I have found the material _ terms of the contract of December 31, 1913, in the second paragraph of the original findings.
“(4) X find that on May 20, 1914, the deed from plaintiff to the defendant was returned to plaintiff and re-executed for the purpose of having some of the deferred payments made payable to the wife of plaintiff instead of to the plaintiff. John D. Robinson, Judge.”

The findings of the trial court are sustained by testimony.

Opinion.

Appellant’s first four assignments of error complain of rulings of the trial court in excluding the testimony of certain witnesses offered for the purpose of proving certain statements made by appellant to such witnesses. One of the witnesses referred to was A. B. McGill, who received appellant’s deposit of $1,000 in the bank of T. S. Reed & Son at Bertram, Tex., during the afternoon of February 28, 1914. The bill of exception recites that:

“While the witness A. B. McGill was testifying in behalf of defendant the defendant proved by said witness that on the afternoon of February 28, 1914, defendant, L. R. Barton, came to the bank of T. S. Reed & Son at Bertram, Tex., and deposited with said bank his check on said T. S. Reed & Son for the sum of $1,000 in favor of W. H. McGuire, plaintiff, contract of sale executed by plaintiff and defendant, and deed executed by plaintiff and his wife conveying the W. XI. McGuire ranch property, and being same property described in plaintiff’s original petition, and defendant offered to prove, and said witness» would have testified, that at the time of depositing said cheek, on February 28, 1914, defendant stated to him that he had that day, over the phone, while at Burnet, Tex., bought said property from plaintiff for $12.50 per acre, and that, according to the verbal agreement made between himself and plaintiff, he was depositing said $1,000 as earnest money, and as security that he would comply with the terms of said sale; that plaintiff had agreed with him (defendant) that he would execute sale contract and a deed of conveyance to said property, and would send same to the bank of T. S. Reed & Sou on the Monday following; to the introduction of which testimony plaintiff objected on the ground that said testimony was immaterial, was had outside of the hearing and presence of plaintiff, not binding on plaintiff, and was self-serving, which objection was sustained by the court, and defendant not permitted to introduce said evidence.”

Appellant offered to prove by himself, D. C. Reed, and Emzy Marcus that on the same day he made similar statements to Reed and Marcus, and the court sustained the same objections to that testimony. The contention urged in behalf of appellant seems to be that,, inasmuch as it was a controverted question as to whether appellant sold the land to Howze for $18 per acre, as appel-lee’s agent, as claimed and testified to by ap-pellee, or whether on March 28th, as claimed and testified to by appellant, he made a verbal contract to purchase the land from appellee at $12.50 per acre, and thereafter sold it to Howze for $18 per- acre; and it also being a controverted question as to whether, on the day appellant claims to have bought the land from appellee, he agreed with the latter to deposit with T. S. Reed & Son the sum of $1,000 as earnest or forfeit money, and whether or not he made said deposit, and the undisputed testimony showing that appellant made a deposit of $1,000 in the bank referred to on that day to the credit of1 appellee, the excluded testimony of the witnesses referred to was admissible.

We cannot agree with appellant’s contention. The testimony referred to was not only hearsay, but was offered for the purpose of proving that appellant, in the absence of appellee, had made certain unsworn statements which were self-serving, and which were offered for the purpose of bolstering and supporting the testimony given by him upon the witness stand. It is said in appellant’s brief that at the time referred to no controversy had arisen between the parties, but that fact affords no ground for departing from the rule which excludes such testimony. The court permitted appellant to prove (and there seems to have been no controversy about the fact) that at the time referred to appellant made the deposit in the bank to the credit of appellee; but appellant and ap-pellee differ widely in their testimony as to the prior agreement between them which resulted in the deposit referred to being made. Appellee testified, in substance, that appellant told him that he had found a purchaser for the land, and that in order to secure the deal it was necessary to deposit $1,000 in the bank, which he had done; that appellant also stated that his purchaser would not take the land with certain outstanding liens against it, but if appellee would deed the land to appellant the notes given by appellant could be used to pay off such liens, and the purchaser would then accept a deed from appellant. This was denied by appellant, who testified that appel-lee deeded him the land in’ pursuance of his contract of purchase made by telephone on the day he deposited the money in the bank. In substance, appellee’s contention is that appellant had found a purchaser for the land at a much larger price than $12.50 per acre, or, at least, was satisfied that he could find such purchaser, and that at the time he procured appellee’s agreement to deed the land to appellant the latter had in his mind the intention to defraud the appellee out of several thousand dollars by getting appellee to convey the land to him (appellant) for $12.50 per acre, thereby enabling appellant to convey it to some one else for a larger consideration. Now, if appellee’s contention was true, then at the time appellant made the $1,000 deposit in the bank, and made the several statements which were excluded, he had a strong motive for making such statements. To show the existence of such motive it was not necessary to show that at the time the statements referred to were made a controversy had already arisen between the parties, because the apprehension that such controversy might arise would constitute a sufficient motive for making the statements referred to, if appellant’s purpose to defraud was as claimed by appellee.

At any rate, the statements made by appellant to the witnesses referred to were not so connected, in point of time or otherwise, with the transaction which had occurred between appellee and appellant, and which appellant contends resulted in the contract of sale, as to render such statements admissible as res gestee or part of that transaction. Such statements were hearsay and self-serving, and therefore were inadmissible.

In the case of Taliaferro v. Goudelock, 82 Tex. 521, 17 S. W. 792, which was a case for damages, actual and exemplary, on account of the suing out and levy of an attachment at the instance of appellants, the court says:

“As affecting the claim for exemplary damages, evidence was introduced by both parties upon the issue as to whether or not the defendant in the attachment suit was indebted to the plaintiff in that suit in the full amount for which the writ of attachment was sued out. Goude-lock, the plaintiff in this suit, testified, that he had on a date named paid $155 on the debt. A witness for the defendant testified that the payment was never made. Plaintiff testified further that he drew the money with which he made the payment from a certain banker on the day on which he made the payment, and told the banker at the time that he wanted the money to make said payment with. Over the objection of the defendants the court permitted the plaintiff to corroborate his own testimony with the evidence of the banker that he did get from him the money as claimed by him, and that he did then make the statement that he wanted it to pay to the plaintiff. It is not pretended that Taliaferro wa's present .when the statement was made. The testimony of the banker was clearly improper, and for the error in admitting it the judgment must be reversed.”

In the case of Davis v. Sisk, 49 Tex. Civ. App. 193, 108 S. W. 472, which was a case in which a partner sold, his interest in a firm business and agreed to pay the debts of the firm, the buyer conveying real estate in exchange, the partner failed to pay the debts, and creditors took charge of the business, Davis, the buyer, sued Sisk, the seller, and, the only point in issue being as to whether or not Sisk assumed the firm’s debts, the court says:

“The [trial] court did not err in not permitting appellant’s (Davis’) wife to testify that appellant told her on the way to Mt. Yernon to sign the deeds, and on the return therefrom that the ‘trade between himself and the defendant was that defendant was to pay the debts against the firm and business,’ etc. This testimony was hearsay and self-serving, and * * * clearly inadmissible.”

The fifth assignment of error presents substantially the same question; the contention being th'at soon after appellant ceased talking with appellee over the telephone (in which conversation he claims to have made the contract to purchase the land) he went to the office of Dayton Moses, an attorney at Burnet, Tex., and told him that he had made such telephone contract with appellee and the terms thereof, the same as he offered to prove by the other witnesses referred to. That conversation was no part of the interview between appellant and appellee, and was properly excluded upon the same objections that were made to the testimony of the other witnesses.

There are several other assignments which charge that certain findings of the trial court are contrary to the preponderance of the testimony. The rule is well settled in this state that appellate courts do not undertake to determine what constitutes a mere preponderance of testimony, and do not set aside findings of juries and trial courts when the evidence is conflicting, unless it is charged and shown that they are so contrary to the overwhelming weight of the testimony as to indicate that the jury or trial judge was actuated by some improper motive or influence. The decisions upon this question are numerous, and are collated in section 1030 under the head of “Appeal and Error” in the first volume of Green’s Texas Digest, p. 702.

No such charge is made by the assignments referred to, and, without further comment, they are overruled. Under two of the assignments referred to appellant presents the contention that, as the preponderance of the evidence shows that after appellee was informed and knew that appellant had obtained a much larger sum than $12.50 per acre for the land, he transferred two notes executed by appellant for said land, accepted payment at the rate of $12.50 per acre for 3.37 acres, excess acreage, and thereafter executed a second deed to appellant for the land, therefore he should be held to have ratified what appellant had done, and to be estopped from maintaining this suit. According to appellee’s testimony, which the trial court seems to have accepted as true, he had no notice of the existence of the facts referred to until after appellant had sold the land to an innocent purchaser; and therefore we hold that the fact that he accepted from appellant a certain sum of money for the excess acreage, and that he transferred notes executed to him by appellant as part of the consideration for the land, and executed a new deed, which was done by agreement, and merely for the purpose of having some of the purchase-money notes made payable to appellee’s wife, do not prove ratification of appellant’s conduct in withholding from ap-pellee about $5,000, to which the facts found by the trial court show he was entitled, nor do such facts constitute an estoppel. Appel-lee could not then recover the land from such innocent purchaser, and the facts referred to do not estop him from recovering from appellant.

It is also contended on behalf of the appellant that the judgment is excessive, the first contention being that the preponderance of the testimony shows that appellant sold the land to Howze for only $19,243.60, instead of $22,242.60, as found by the trial court; and therefore, if appellee was entitled to recover, such recovery should have been limited to $3,790.47. Appellant’s second contention is that the undisputed testimony shows that appellee was entitled to recover only $5,202. The written contract of sale between appellant and Howze required a cash payment of $7,000, and Howze testified that he paid that amount, while appellee testified that he paid only $4,500, and that he released Howze from the payment of the other $2,500. The trial court seems to have accepted the testimony of Howze as true, and decided that issue in appellee’s favor. As to the other point, the case is in this attitude: Appellee conceded in his petition that appellant was entitled to a commission of 5 per cent, upon the amount for which he sold the land to Howze. The written contract recited that the sale by appellant to Howze was for $18 per acre, and that he was to make a cash payment of $7,500; but it contained another stipulation stating, in substance, that appellant would remit to Howze the sum of $500, denominated commissions. In other words, when considered in its entirety, the contract of sale required Howze to pay only $7,000 in cash and to give his notes for specified sums as the balance of the consideration. The property sold consisted of 1,235.7 acres, which, at $18 per acre, amounted to $22,-242.60, but from that sum must be deducted $500, the amount of the cash payment remitted by appellant, and that leaves $21,742.60. A commission of 5 per cent, upon that sum amounts to $1,087.13, which, when deducted from $21,742.60, the amount of consideration received by appellant from Howze, leaves $20,655.47. The undisputed proof shows that appellee received from appellant only $15,-446.25, which leaves a balance of ■ $5,209.22, which, after conceding, as appellee did, appellant’s right to th'e 5 per cent, commission, is the correct amount that appellee was entitled to recover. This is $475 less than the amount recovered by appellee; but, as the facts in this respect are undisputed, the error that was committed in rendering the judgment for $5,684.22 can be corrected by this court without remanding the case for another trial.

Therefore the judgment of the court below will be reformed so as to limit appellee’s recovery to $5,209.22, with interest as stipulated therein; the costs of the appeal to be taxed against appellee.

Reformed and affirmed.
      i&wkey;For .other cases see same topic and KEY-NUMBEB. in all Key-Numbered Digests and Indexes

      <§xn?For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HUFF, C. J.

text:
    QUANAH, A. & P. RY. CO. v. MOORE.
    (No. 1049.)
    (Court of Civil Appeals of Texas. Amarillo.
    Oct. 25, 1916.
    Rehearing Denied Nov. 15, 1916.)
    1. Carriers <&wkey;20(6) — Nondelivery of Freighi^-Action for' Penalty — Defenses.
    In a suit for damages and to recover a penalty for the violation of Rev. St. 1911, arts. 6670, 6671, for willfully and wrongfully refusing to deliver goods consigned to the plaintiff, on which freight had been prepaid, t9 a connecting' carrier at the junction .for carriage to plaintiff’s place of residence, and for violation of the Railroad Commission’s rule, requiring a railroad to receive and transport goods legally tendered subject to a penalty for delay, and allowing 48 hours additional at junctions where it is necessary to rehandle goods, where it appeared that the defendants and the connecting carrier had violated articles 6589, 6608, in failing to maintain a depot at the junction for keeping goods, it was no defense that they were carried beyond to a point on defendant’s railroad and there retained for failure of the connecting carrier to settle advance charges on the goods previously delivered to it, and for delivery only on payment of the freight to the junction point.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 41; Dec. Dig. <&wkey;>20(6).]
    2. Carriers <&wkey;20(6) — Carriage of Goods1— Nondelivery — Defenses — Separation of Goods.
    Even if the conditions were such that the' defendant could not deliver the goods without taking them to a point on its line beyond the junction for separation from other goods, it would not be relieved from liability, unless such conditions were made known to the shipper before the goods were delivered to it for transportation.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 41; Dec. Dig. &wkey;>20(6).]
    3. Carriers &wkey;>13(l) — Carriage of Goods— Discrimination.
    The idea prominent in legislation as to receiving and transporting freight is equality, and carriers are not permitted to exercise their charter rights so as to benefit one individual or community, to the detriment of another.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 21-24; Dec. Dig. &wkey;13(l).]
    4. Carriers <&wkey;2 — Delay in Delivery — Rules of Railroad Commission — Effect on Statute.
    The rule of the Railroad Commission, requiring goods legally tendered to a carrier to be received and transported subject to a certain penalty for delay in delivery, enacted under article 6687, authorizing the Commission to make all needful regulations for unloading cars at junction points, did not repeal or supersede article 6670, subd. 2, providing that if a carrier fails or refuses, under regulations made by the Commission, to transport and deliver without delay, it shall be guilty of discrimination, since the right to regulate does not give the right to substitute a different penalty from that prescribed by the statute.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 4, 5; Dec. Dig. <&wkey;2.]
    5. Carriers <&wkey; 19 —Delay in Delivery — Damages or Penalty — Measure.
    In a suit for damages and to recover a penalty for the violation of Rev. St. 1911, arts. 6670, 6671, for willfully and wrongfully refusing to deliver goods consigned to plaintiff to a connecting carrier, and for carrying them beyond the connecting point, plaintiff’s profits on the amount of goods sold were not a proper measure of damages, where it did not appear that such profits were lost by a refusal to deliver them within the statutory time.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 33-49; Dec. Dig. &wkey;19.]
    6, Appeal and Error &wkey;>932(l) — Presumption — Damages.
    In a case, tried by the court, it will not be presumed that the court improperly allowed plaintiff’s profits as damages, where there was no evidence to show that such profits were in fact lost to plaintiff.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3782; Dec. Dig. <§==>932(1).]
    Appeal from Motley County Court; C. B. Whitten, Judge.
    Action by R. P. Moore against the Quanah, Acme & Pacific Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    D. E. Decker and J. A. Clarke, both of Quanah, and G. E. Hamilton, of Matador, for appellant. T. T. Bouldin, of Matador, for appellee.
   HUFF, C. J.

This suit was instituted by appellee for damages and to recover a penalty for the violation of articles 6670 and 6671 of the Revised Civil Statutes of 1911, in that appellant willfully, wrongfully, and maliciously refused to deliver the goods consigned to him at Matador, to the Motley County Railway Company, the connecting carrier at Matador Junction, but carried the same beyond that point to Roaring Springs, on appellant’s line of road. The facts in this case sufficiently show that the shipment of goods was received by the appellant on its line of road at Quanah, Tex., to be transported over its line of road, to the Matador Junction, and thence to Matador over the Motley County Railway Company’s road to Matador, appellee’s residence and place of business, to whom the consignment was made. The agent of appellant wrote to ap-pellee at Matador with reference to the shipment:

“Owing to the failure of the Motley Counts Railway Company to make satisfactory settlement for the advance charges on freight there tofore delivered that line, this company will only deliver this freight to the connection, when the freight to Matador Junction has been paid to us. We will deliver this freight to you at this office (Roaring Springs) on payment of freight charges or will deliver to the Motley County Railway Company at the junction on payment of freight to that point. Please advise what disposition you desire made of the freight.”

Upon receipt of the ábove letter the ap-pellee called up the agent, and requested him to send the goods to him at Matador. The agent replied that he had instructions from his company to hold the freight until the freight charges were paid at Roaring Springs. The agent testified that he did not send out the usual card of notice, hut instead thereof sent out the letter or the above notice, by direction of the officials of appellant road. This was done in an effort to have freight charges theretofore advanced and paid by appellant repaid by the Motley County Road. He, however, testified that the freight on this particular shipment was prepaid, and that he delivered it to the other road as soon as he could separate it from other shipments made to Afton. The evidence shows the shipment was held from the 24th until the 27th of August, 1914. Mr. Gaines, the superintendent of the Motley County Railway testified that his road was able to and did handle all freight delivered it by appellant at the junction; that he called up the agent at Roaring Springs about the 23d to the 26th, and asked why the freight for Matador consignees was not delivered to the Motley County Railway Company. The agent told him he was instructed to hold the freight until settlement between the two roads in the freight controversy was had; that his road ran cars every day, except one or two, and met appellant’s train at the junction; that there was no depot or agent at the junction maintained by either road, but that the freight was delivered to the Motley County Railway Company from car to car, except carload lots; that since the settlement of the freight controversy all carloads and less than carload lots consigned to Matador have been stopped at the junction and not sent to Roaring Springs. Circular 2703 was introduced in evidence as the Railroad Commission’s rule, governing transportation of freight less than carload shipments. This provides for such shipments legally tendered to a railroad company at its customary place of receiving such shipments, stipulating that it shall promptly receive the same, and for failure to receive and transport such shipments the company at fault shall pay to the shipper the following amounts in cents per hundred pounds (setting out a scale according to days detained or delayed, the minimum charge for any one shipment, five cents): “Provided that forty-eight hours additional time shall be allowed at junction points or division terminals when it is necessary to rehandle the shipment.”

The first, second, third, and fourth assignments urge that the judgment of the court is not supported by the evidence. By propositions it is urged, where there is no depot or agent at the junction, that it is not a violation of article 6670 or of the rules of the Railroad Commission to carry property beyond the station; that it was not an offense to delay 72 hours when that was the earliest delivery possible under the conditions existing at the junction. In failing to establish and maintain a depot or place for keeping and caring for goods to be delivered and transported to the connecting lines the two roads in question violated the statutes. Articles 6589 and 6608. Their violation of these statutes will not relieve the one violating the article fixing a penalty for failure or refusal to deliver the goods to its connecting carrier. The facts show, and the court was justified in finding, that the goods were not in fact held for separation from other shipments to other points, but were held under instructions from the officials of appellant until a freight dispute could be adjusted between the two roads. This, clearly, did not excuse the failure or refusal for 72 hours, or for any time, to deliver the goods. It was no excuse for annoying the shipping public. To compel the shippers of Matador, on the Motley County Railway Company’s road to go to Roaring Springs to pay the freight and get their goods would be intolerable. The letter of the agent in this case was evidently so worded as to impress the shipper such would be required of him. The idea prominent in our legislation upon receiving and transporting freight is equality. They are not permitted to exercise their charter rights in such manner as to benefit one in*dividual, town or community, to the detriment of another. Railway Co. v. Smith, 63 Tex. 322. Even if the conditions were such that the appellant could not deliver the goods at the junction without taking them to Roaring Springs for separation, from other freight, .this would not relieve it from liability to comply with the law unless such conditions were made known to the shipper before their delivery to it for transportation. Railway Co. v. Hannay, 104 Tex. 603, 142 S. W. 1163. This court has held the excuse given in this case will not relieve the road from liability under the statute. Railway Co. v. Jones, 178 S. W. 858; Railway Co. v. Warren, 184 S. W. 232. The Commission’s rule required the delivery and receipt of this character of freight to be at the customary place. The evidence, without contradiction, both before and after the dispute, shows that the Motley County Railway Company’s train met appellant’s at the junction each day and received freight from it by delivering from one car to the other. This was the customary place and manner, but appellee, owing to the dispute, refused to deliver the freight as had been customary. It is contended the rule gave appellant 48 hours. If this is true the freight was not delivered within that time under the undisputed facts in this ease. Want of time for the delivery was not then urged by appellant, or that it would require the 48 hours allowed by the rule. At that time it gave no other reason than that of the dispute and unreasonably demanded that the freight must be paid and the goods received at Roaring Springs. It not only violated the statute, but the regulation of the Commis-sion as well.

It apparently is urged because the Commission fixed a different penalty to that of the statute that this necessarily repealed or superseded the statutory penalty. If these articles of the statute were not repealed by the 'Railroad Commission Act, by implication, then for a stronger reason a rule by the Commission will not repeal or supersede them. Railway Co. v. Hannay; Railway Co. v. Warren, supra. The Railroad Commission was granted no such power. Subdivision 2, art. 6670, provides if the carrier “shall fail or refuse, under such regulation as may be prescribed by,the Commission,” “to transport and deliver without delay,” it will be guilty of discrimination. The right to regulate does not give the right to substitute a different penalty or substitute a rule for the statute. It may regulate the manner of doing the thing and the like, but cannot abrogate the statute. Article 6687 indicates what is meant by the .term “under such regulation.” “The Railroad Commission of Texas shall have the power, and authority is hereby vested in it, to make all needful rules and regulations for unloading ears at junction points,” etc. Whenever a railroad fails or refuses to transport or deliver without delay such freight to the connecting carrier, it violates the statutes. If the road has complied with the regulations of the Commission, it may be excused perhaps. In this case, however, there was no pretense at the time of the refusal of conforming either to the mandates of the law or the rule; but the refusal was based on an unreasonable contention and demand by the railroad. These assignments will be overruled.

The fifth assignment of error is to the action of the court in permitting appellee to testify that his profits were 15 per cent, on the amount of goods sold. Under the facts in this case we do not think this is a proper measure of damages. It is not shown these profits were lost by the refusal to deliver the goods in 72 hours. Under some conditions this may be a proper measure of damages. This assignment, however, shows no injury to have occurred, and, upon looking into the record, we find nothing to convince us that the court allowed this as part of the recovery. The case was tried by the court, and we will not presume the court allowed them, when there is no evidence to show that they were in fact lost, to appellee. There is no assignment to the effect that he did. The judgment is not for as much as he could have allowed under the statute. Eor the above reason the fifth assignment is overruled.

The sixth and seventh assignments are overruled. The assignments are that it was error to permit the appellee to testify, as shown by the bill of exceptions. The bill of exceptions are to the effect that the court refused to permit the witness to testify and answer certain questions, not that he permitted him to testify as set out in the assignment. The rejection of the evidence, however, was not error, and no such injury to appellant, of which it could complain.

The eighth and ninth assignments, to the action of the court in overruling special exceptions 2 and 3, to the plaintiff’s petition, are overruled. We think the petition sufficiently definite. Our views as to the effect of the statute and regulations by the Commission are given in our consideration of the first assignment.

Assignments from 8 to 14 are overruled. These assignments seek to attack the constitutionality of articles 6670 and 6671. The questions here presented have been fully answered by the Supreme Court. Railway Co. v. Hannay, 104 Tex. 603, 142 S. W. 1163. No reversible error having been assigned or pointed out, the case will be affirmed.
      <SS=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RICE, J.

text:
    JOHNSON v. MORGAN.
    (No. 5669.)
    (Court of Civil Appeals of Texas. Austin.
    Oct. 25, 1916.)
    1. Judgment <&wkey;243 — Lien—Parties.
    A judgment is not a lien upon the land of one not a party of record.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 428; Dec. Dig. <S=»243.]
    2. Judgment <&wkey;787 — Lien—Priority.
    The owner of land, having executed a deed of trust thereon to secure his note, conveyed it, the grantee assuming payment of the note and giving vendor’s lien notes in payment of the land. The grantee in turn conveyed the land to a judgment debtor, who assumed payment of the note secured by the deed of trust as well as of the vendor’s lien notes. Held, that the original owner and his immediate grantee had liens which have priority over the lien of the judgment creditor upon the equity of redemption acquired by the judgment debtor.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1361, 1363-1367; Dec. Dig. <&wkey;> 787.]
    Error from District Court, Coryell County; J. H. Arnold, Judge.
    Suit by E. J. Morgan against Robert A. Johnson and others. There was a judgment for plaintiff, and the named defendant brings error.
    Reversed and remanded.

      John B. Durrett, of Belton, for plaintiff in efror. McClellan & McClellan, of Gatesville, for defendant in error.
   RICE, J.

This suit was brought by defendant in error against plaintiff in error, Robert A. Johnson, C. A. Parker, E. B. Simmons and J. B. Carden, for the purpose of establishing and foreclosing an alleged judgment lien on 100 acres of land out of the Wells survey in Coryell county, alleging that theretofore, to wit, on the 1st of August, 1910, in cause No. 2947, in the district court of Coryell county, entitled B. J. Morgan v„ J. B. Roberts et al., plaintiff recovered a judgment against J. B. Roberts, Clint • Roberts, S. M. Scott, Wise & Graves, a firm composed of Mont Wise and Reed Graves, and against the said Mont Wise and Reed Graves individually, for the sum of $509.50, with costs of suit, which judgment was credited with $53.70. It was further alleged that on the 29th day of October, 1910, plaintiff caused an execution to be issued on said judgment, directed to the sheriff or any constable of Coryell county, which was thereafter levied on a certain automobile as the property of the defendant Parker, but this levy was thereafter dismissed by order of plaintiff and the execution returned nulla bona. Also alleging that thereafter, on the 25th day of January, 1912, plaintiff caused an abstract of said judgment to be issued, properly filed, recorded, and indexed'in the abstract of judgment record of said county, alleging that by reason thereof said abstract of judgment operated as a lien upon all the real estate of the defendants therein situated in said county, and that thereafter the said Parker acquired title to and became the owner of said above-described tract of land; that said judgment is wholly unpaid, except as indicated by the credit aforesaid; that the said Simmons, Johnson and Carden are each asserting some right, title, interest, and lien in and to said land, the exact nature of which is to plaintiff unknown, but which he alleges is inferior to the lien created by said abstract of judgment. Wherefore he prayed for decree establishing his debt and lien aforesaid, with foreclosure thereof against all of the defendants to this suit, and for order of sale, etc.

The defendants Parker, Simmons and Carden failed to appear and answer, and judgment was rendered by default against them. The plaintiff in error filed a general demurrer, general denial, and specially answered, alleging that if it were true, as alleged by plaintiff (defendant in error), that he had acquired a lien upon said land by reason of his judgment lien, and by reason of Parker’s having acquired title thereto, still, he asserted that he, plaintiff in error, and those who claimed under him, had a prior and superior lien to that asserted by defendant in error because before Parker acquired any interest in the land plaintiff in error was the owner in fee simple thereof, and while so owning same he executed a deed of trust thereon to secure the Grand Lodge of Texas, in the payment of his promissory note for the sum of $1,500; that he subsequently sold and conveyed the land to Carden, his co-defendant, and as part of the consideration therefor, Carden assumed the payment of said note, and he likewise executed and delivered to plaintiff in error his promissory notes .for the aggregate sum of $1,150, and to secure the same a vendor’s lien was expressly retained in his deed to Carden; that after such sale and conveyance, plaintiff in error assigned and transferred said veridor’s lien notes so executed and delivered by Carden to J. H. Reese, and that subsequent thereto Car-den sold and conveyed his equity in said property to C. A. Parker, defendant herein, and Parker, as a part of the consideration therefor, assumed the payment of said note and lien to said Grand Lodge, as well as the other vendor’s lien notes executed and delivered by him to plaintiff in error; that the said Parker had full notice of said liens and incumbrances, and that if defendant in error acquired a judgment lien against the interest of Parker in said property, as claimed in his petition, such lien was subject and inferior to the other liens above described which have never been paid off or satisfied, and are still outstanding and valid incum-brances against the land. Wherefore plaintiff in error prayed that if defendant in error recovered a judgment in this ease against the defendant Parker and his vendees for a foreclosure of his judgment lien upon said property, then that this plaintiff in error have judgment establishing and decreeing that the liens and incumbrances, above described are superior to the lien of defendant in error, and that said land be sold subject to the aforesaid liens, etc.

The case being tried before the court without a jury, judgment was rendered that said answer was a disclaimer of any right, title, or interest of plaintiff in error in the subject-matter of the suit, and constituted no defense, offset, or counterclaim to the debt sought to be established, or to the foreclosure of the lien prayed for, and that he go hence and recover his costs. Judgment wa!s likewise entered in favor of defendant in error, establishing his debt and judgment lien as against Parker, and decreeing that the same was superior to any right, title, or interest that Simmons, Johnson, or Carden might have in said land, and decreeing foreclosure of said lien against all of the defendants in this suit, from which judgment this writ of error is sued out by plaintiff in error, who claims that the court erred in holding that defendant in error had a valid and subsisting judgment lien on said land, superior to any right, title,' or interest of plaintiff in error therein, and in decreeing foreclosure thereof in favor of defendant in error, for the reason that no fact was stated in defendant in error’s petition, showing that Parker was a party defendant in the original suit in cause No. 2947 in the district court of Ooryell county. We believe this contention is correct: First, because the defendant in error’s petition fails to show that O. A. Parker was one of the defendants in the original judgment recovered in cause No. 2947 in the district court of Coryell county, without which no judgment could have been rendered against him. In order to establish the lien against him, it must necessarily appear, of course, that Parker was a party defendant to said suit.' And, sécond, because even if this had been shown, we think it sufficiently appears from plaintiff in error’s answer that he had an interest in the land which was superior to that of Parker, for which reasons the court erred in holding that the same constituted a disclaimer on his part.

For the errbrs indicated, the judgment of the court below is reversed, and the cause remanded.

Reversed and remanded.
      <@=^For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: SWEARINGEN, J.

text:
    GULF, C. & S. F. RY. CO. v. GOODMAN.
    (No. 5703.)
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 1, 1916.)
    1. Appeal and Error <&wkey;>1091(2) — Presumption — Allegations op Petition — Rulings.
    Where plaintiff’s pleadings in a justice court were oral and there were no memoranda thereof in the record from the county court, the allegations in his petition will be presumed by the Court of Civil Appeals to have been consistent with the rulings of the trial judge.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4387, 4388; Dec. Dig. <&wkey; 1091(2).]
    2. Judgment <@=3250 — Conformity to Petition-Cause op Action.
    A plaintiff must allege a cause of action against a defendant in order to recover thereon.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 436; Dec. Dig. <S&wkey;250J
    3. Appeal and Errob <&wkey;1091(2) — Presumption — Pleading to Support Judgment.
    The Court of Civil Appeal must presume other oral pleadings, on appeal from justice on behalf of the plaintiff not inferable from the statement thereof in the charge necessary to sustain the county court’s judgment, consistent with the charge, but cannot presume allegations contradictory to the statement thereof in lie written charge.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4387, 4388; Dec. Dig. <&wkey;> 1091(2).]
    4. Master and Servant <&wkey;77 — Hospital Fee — Action by Breach — Pleading.
    Plaintiff’s allegations that defendant railroad, with his consent retained out of his salary $1 each month for hospital fees and impliedly promised, in consideration thereof, to furnish without further charge services in its hospital with medical and surgical treatment if plaintiff became ill, and that defendant breached its implied obligation by refusing to admit him to its hospital or to furnish him with medical treatment, etc., and thereby compelled him to pay a certain reasonable amount for such services, stated a cause of action to recover the reasonable amount which plaintiff had been obliged to pay for medical treatment, etc.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 105, 106; Dec. Dig. &wkey;> 77.]
    5. Master and Servant <&wkey;77 — Hospital Services — Action by Breach — Evidence.
    In such action evidence held not to sustain the cause of action pleaded.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 105, 106; Dee. Dig. <5&wkey; 77.]
    6. Corporations <&wkey;484(2) — Hospital Services — Right to Contract.
    A transportation corporation cannot contract as an insurance company to indemnify an employé for the amount spent by him for hospital accommodations, medical treatment,' etc., because the statute expressly authorizes insurance corporations.
    [Ed. Note. — For other cases, see Corporations, Cent Dig. § 1815; Dec. Dig. &wkey;484(2).]
    Appeal from Austin County Court; C. G. Krueger, Judge.
    Action by C. T. Goodman against the Gulf, Colorado & Santa Fé Railway Company. From a judgment of the county court, on appeal from justice’s court, for plaintiff, defendant appeals.
    Reversed, and judgment rendered for defendant.
    Terry, Cavin & Mills and A. H. Culwell, all of Galveston, for appellant. Duncan & Duncan, of Bellville, for appellee.
   SWEARINGEN, J.

This cause was won in the justice’s court by appellee, Goodman, and reached this court by appeal from the county court, where it was submitted to a jury upon a written general charge. Ap-pellee’s pleadings were oral, and no memo-randa thereof is contained in the record before us. Under such circumstances, the allegations in appellee’s petition will be presumed by this court to have been consistent with the rulings of the trial judge. Maass v. Solinsky, 67 Tex. 290, 3 S. W. 289; Railway v. Shipman, 1 Tex. Civ. App. 407, 20 S. W. 952; Silberberg v. Trilling, 82 Tex. 523, 18 S. W. 591; Patty v. Gibson, 23 S. W. 392.

It is, of course, elemental that plaintiff must allege a cause of action against defendant in order to recover thereon. Merchants’ & Bankers’ Fire Underwriters v. Williams, 181 S. W. 860, 861; Holman v. Criswell, 13 Tex. 38; Kelly v. Webb, 27 Tex. 368.

Looking to the written general charge given the jury by the county judge, we find the cause of action of plaintiff stated in the following language:

“In this cause the plaintiff, C. T. Goodman, sues the Gulf, Colorado & Santa Fé Railway Company, defendant, for the sum of $ 140 alleged to have been expended by him for hospital fees, medical attention, and drugs. Plaintiff alleges that on the 5th day of October, 1913, and for some time prior thereto, he was an employé of the defendant, and that during the time he was in the services of the defendant, it retained at the end of each month out of his monthly salary the sum of $1 for hospital fees, and that by reason thereof he was entitled to hospital services, medical attention, and drugs, in case of illness, without further charge. Plaintiff alleges that on the 5th day of October, 1913, he was severely burned about the hands and face in the basement of a building in the city of Houston, Tex.”

The only legal and reasonable construction that can be given to this charge is that plaintiff alleged the fact that the railroad company with his consent retained out of plaintiff’s salary $1 each month for hospital fees, and further alleged that the defendant railway company impliedly promised, in consideration of the monthly hospital fee, to furnish appellee, without further charge, with hospital services, medical attention, and drugs in case of the illness of appellee. It may be inferred from the issues presented in the charge that as plaintiff paid a dollar a month to the railroad company for hospital fees, plaintiff would be admitted into the railroad company’s hospital. It may further be inferred that if entitled to admission in the railroad company’s hospital, plaintiff was entitled to the surgical treatment and accommodations he would have received there from the railroad company’s agents. The Kenilworth, 4 L. R. A. (N. S.) 56, note, citing Ill. C. Ry. Co. v. Gheen, 112 Ky. 695, 66 S. W. 639, 68 S. W. 1087; Scanlon v. Railway Co., 86 S. W. 930. From the court’s charge it may further be presumed that plaintiff alleged that he became ill, and, further, that plaintiff prayed for judgment for $140, alleged by him to have been paid by plaintiff for hospital charges, medical attention, and drugs to some one other than the defendant railroad company.

This is all of plaintiff’s pleading that can be inferred from the statement thereof in the charge. This court must presume all other pleadings on behalf of plaintiff necessary to sustain the court’s judgment, if consistent with the charge, but cannot presume any allegations contradictory to the statement thereof in the written charge. We can then presume that plaintiff alleged that the defendant breached its implied obligation by refusing to admit plaintiff to its hospital and by refusing to furnish him the surgical treatment and accommodations and drugs he was entitled to receive, and that plaintiff thereby was compelled to expend $140 for these services, which amount was reasonable. Unless we are permitted to presume the allegation of a breach, plaintiff stated no cause of action. M. & B. Fire Underwriters, 181 S. W. 861, 862. We are permitted to presume these allegations were made in the oral petition.

Such being the presumed cause of action made by the plaintiff’s petition, was it sustained by the evidence? Appellant by its third, fourth, and twelfth assignments, urges that the judgment is contrary to the evidence, and the trial court erred in refusing a peremptory instruction for appellant, and erred in refusing to set aside the judgment and grant appellant a new trial. The evidence shows that appellee, plaintiff, believed appellant maintained a hospital. That ap-pellee did not seek admission to appellant’s hospital That appellant had no notice of appellee’s injury until after appellee’s recovery. That appellant never refused to admit appellee to the hospital, and never refused the surgical treatment and drugs for which appellee paid the hospital fee. This proof was furnished by the appellee himself and was uncontradicted. We are therefore constrained to hold that the evidence wholly failed to1 sustain the cause of action pleaded. In the brief for appellee it is contended that appellant was bound by the implied contract as an insurer, and was bound to indemnify plaintiff for the amount expended by him for hospital accommodation, surgical treatment, and drugs. We are not at liberty to presume that such a cause of action was pleaded, for it contradicts the statement of the cause of action made by the trial court in its charge.

Furthermore, a transportation corporation cannot contract as an insurance company, because the statute expressly authorizes insurance corporations. McCaleb v. Boerne Elec. Power & Mfg. Co., 173 S. W. 1191.

As we must sustain appellant’s third, fourth, and twelfth assignments of error, and that ruling disposes of the case, we do not feel it necessary to discuss the other assignments, most of which are without merit in view of the verdict of the jury.

Illustrations by analogy usually cloud not clear, but perhaps the following may be an exception: When a guest registers at an American plan hotel, the act of registering creates the implied contract which binds the guest to pay a current rate and binds the hotel to furnish the guest with the hotel’s accommodations. If the guest is without baggage the rate may be demanded and paid in advance. Should the guest take his meal at a restaurant not controlled by the hotel and pay for the meal, the guest could not require the hotel to refund him the price paid for the restaurant meal. But if the hotel refused to furnish the meal after receiving payment, the guest probably would be entitled to recover because of the breach of the implied contract.

The judgment of the trial court is reversed, and judgment here rendered for appellant.
      <&wkey;>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests-and Indexes


author: TALBOT, J.

text:
    MISSOURI, K. & T. RY. CO. v. MASQUEDA.
    (No. 7560.)
    (Court of Civil Appeals of Texas. Dallas.
    May 27, 1916.
    Rehearing Denied Nov. 11, 1916.)
    1. Trial &wkey;>194(19) — Injuries to Servant-Instructions — Invading Province oe Jury.
    Instruction that, there being no evidence of negligence on the master’s part causing the servant’s injury, the evidence showing that the danger of injury was as obvious to the servant as to his foreman, and the servant having assumed the risk of injury, verdict should be returned for the master, is properly refused as being on the weight of evidence.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 466; Dec. Dig. <&wkey;> 194(19).]
    2. Trial <&wkey;252(ll) — Injuries to Servant-Instructions — Invading Province oe Jury.
    Such instruction held properly refused as unsupported by the evidence.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 603; Dec. Dig. &wkey;252(ll).]
    3. Master and Servant <&wkey;276(2), 286(40)— Injuries to Servant — Care oe Foreman— Instruction.
    Evidence held insufficient to warrant submission of issue whether foreman was negligent in failing to warn servant of the danger which caused his injuries, or to sustain finding that the injury was the proximate result of such alleged negligence.
    [E'd. Note. — For other cases, see Master and Servant, Cent. Dig. .§§ 951, 959, 1044; Dec. Dig. &wkey;276(2), 286(40).]
    On Motion for Rehearing.
    4. Trial i&wkey;420 — Motion eor Verdict — Preservation oe Waiver.
    Where the master asked peremptory instruction, which was refused, and then requested submission of issue of his negligence by a qualified motion reciting the refusal of the peremptory instruction, he was not precluded from asserting on appeal that there was no evidence raising the issue of his negligence.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 983; Dec. Dig. &wkey;s420.]
    Appeal from District Court, Dallas County ; Kenneth Foree, Judge.
    Action by Dionsio Masqueda against the Missouri, Kansas & Texas Railway Company. Judgment for plaintiff, and defendant appeals.
    Reversed and ■ remanded. Motion for rehearing overruled.
    C. C. Huff and J. M. Chambers, both of Dallas, for appellant. Lewis & Roark, of Dallas, for appellee.'
   TALBOT, J.

This is a suit brought by the appellee against the appellant to recover damages for personal injuries received by him while in the employ of appellant as a section hand. The case was submitted to a jury upon special issues, and upon their findings the trial court rendered judgment in favor of the appellee for the sum of $500, and the case is now before this court on appeal.

The appellee was engaged in track work under Harvey Lambert, as section foreman, with six other men, composing the section crew. At a point about two miles from Cad-do, Okl., a steer, which had become frightened by an automobile at Caddo, broke away from the herd in which it was being driven and made its way north along defendant’s track to the place where said section crew was at work, it having been followed by two men on horseback, who were endeavoring to head it and return it to the herd. Plaintiff’s evidence, which was not contradicted in any material particular by any evidence on the part of defendant, is substantially that as the steer approached the place where plaintiff was at work, the said foreman directed the men to drive the steer off the track, which was upon an embankment, it appearing that a passenger train was a few minutes past due, and the foreman thought it necessary for the safety of the train that the steer be driven from the track; that in response to the foreman’s direction to head the steer from the track, the section crew deployed across the track, or rather the two tracks which were at that place, and by gestures with their tools caused the steer to stop and turn off the tracks and go down the embankment, leaving the tracks about four rail lengths from the place where the crew was working. After the steer turned off down the embankment the crew returned to work, and while engaged in their work the men on horseback came on and the steer reappeared on top of the embankment about two rail lengths from where the crew was at work, and made a quick run through the men, striking plaintiff as it went through, inflicting upon him the injuries of which he complains. Plaintiff alleges that his injury was the result of negligence on{ the part of the defendant through its section foreman in five particulars: (1) In permitting the animal to get upon the right of way through inadequate fence; (2) in instructing the crew to head off the animal, knowing it to be vicious and dangerous; (3) in failing to warn plaintiff of the danger incident to heading the steer; (4) in failing to furnish plaintiff a reasonably safe place to work; and (5) in failing to use any care to avoid the injury after discovering plaintiff’s peril. It was further alleged by plaintiff that defendant and plaintiff were engaged in interstate commerce at the time of said injury, which allegation was admitted to be true by defendant. Defendant specifically denied all the allegations of negligence, and that plaintiff’s injury was a proximate result thereof, and further pleaded that the danger incident to heading the steer was open and obvious to plaintiff, and that plaintiff assumed all the risk of injury from the steer.

When the introduction of the evidence was concluded the appellant requested the court to charge the jury as follows:

“Gentlemen of the Jury: There being no evidence showing negligence on the part of defendant proximately causing plaintiff’s injury, and the evidence showing that the danger of injury in heading the steer was as obvious to plaintiff as to the section foreman, and plaintiff having assumed the risk of injury by his continued effort to head the steer, after his fellow servant had failed, you will return a verdict for the defendant.”

This charge was refused, and its refusal forms the basis of appellant’s first assignment of error. The charge was at least in part upon the weight of the evidence and properly refused. The evidence does not, as is assumed in the charge, show conclusively that the danger of injury in heading the steer was as obvious to the appellee as to the section foreman; nor does it so show, in our opinion, that the appellee assumed the risk of injury by his continued effort to head the steer after his fellow servants had failed. There is evidence to the effect that appellant’s section foreman was acquainted with the nature and disposition of that class of cattle to which the steer in question belonged, and that such a steer when gotten in a corner or pen would fight, and that ap-pellee knew nothing whatever of the nature, disposition, and propensities of such a steer under such circumstances. There is also testimony to the effect that when the steer returned upon the railroad track, after having been driven from .it by the section hands, and when within about 20 feet from appellee and his colaborers, the foreman discovered that it was going to fight, and that, notwithstanding the others escaped without injury, it was too late, when the foreman directed the section hands to leave and seek a place of safety, for appellee to avoid the attack of the animal. So that the charge as framed was not in its entirety warranted by the evidence, and should not, therefore, have been given. For the same reasons just stated the second, third, and fourth assignments of error must be overruled.

The court by issue No. 1 submitted to ,the jury whether Lambert in directing plaintiff and the crew on the occasion in question used ordinary care for the safety of plaintiff, and by issue No. 2 the court instructed the jury that if issue No. 1 be answered in the negative, then they should answer whether the injuries to plaintiff were the proximate result of the want of ordinary care of Lambert, if they found that he failed to use such care. The jury answered the first issue in the negative, and the second in the affirmative. The submission of these issues is complained of by appellant in its fifth and eighth assignments of error. The proposition under the fifth assignment is to the effect that the evidence was insufficient to warrant a finding that appellant’s foreman, Lambert, failed to exercise ordinary care for the safety of the 'appellee, therefore issue No. 1 should not have been submitted to the jury, and the proposition contended for under the eighth assignment is as follows:

“The evidence conclusively showing that in obedience to the alleged negligent act of the foreman in directing the crew to head the steer the crew drove the steer from the track and down the embankment, and afterwards, at the suggestion of the foreman, returned to their track work, and that subsequently the steer slowly returned to the track, and, discovering the horsemen rapidly approaching, turned and ran through the crew, striking and injuring plaintiff, all of which occurred wholly independent of any action of the foreman other than his effort to get the men out of the way of the steer, the finding of the jury that the injury was the proximate result of the alleged negligence of Lambert is without evidence to support it.”

These assignments, we think, ar.e well taken. The testimony in reference to the care used by appellant’s foreman Lambert for the safety of appellee, and upon the question of whether the direction given by said foreman to appellee and his colaborers to head the steer and drive him from the railroad track was negligence and proximately resulted in the injuries received by appellee, is that of the witnesses Lambert, Espinoza, and the appellee himself. The witness Lambert testified in this connection:

“I told the men we would have to run it [the steer] off the right of way when it got close to us. We were running it off the track. We had a train due there at that time, and I was afraid it would cause an accident, and so we ran it off. The animal remaining on the track might have wrecked the train. When I instructed the men to head it off, they carried out my instructions. When I discovered that the steer was going to fight, I was 12 or 15 feet from the plaintiff. The steer was about 20 feet from him. The only effort I made to prevent him from getting hurt was to holloa to him to run. We all made motions at the animal to scare it away. I hol-loaed for them to run, and then I ran and turned around and saw him standing there, and then I called again to him to run. I don’t know that he understood me, but he could see everybody else running.”

Espinoza testified that when the foreman told the men to chase the steer off the track the steer left the track and the foreman told the men to go back to work, which, they did. At that time the men on horseback made the steer come up on the track again, and when it got back it was so close to the place where the men were working that they saw the danger and tried to escape, but it was too late. The foreman gave the order for the men to leave and get in a safe place, but it was too.late, and in that minute the steer caught the man and hurt him. He further stated that when the steer went back on the track the foreman told the men to get out of the way, but it was too late; that the steer was about four rails from them when he first turned off the track and went down the embankment. The appellee testified:

“When the foreman told us to head off the steer, we were all standing in line and the animal went down the embankment. That was probably two rails from us. The men then went back to work. The horsemen were about four poles from the steer when it went down the embankment. They were probably half that distance from the steer when it came back up on the track. The men were riding up on top of the embankment between the two tracks. The men were running their horses. The steer was going very slowly when it came up on the embankment. We stopped working when it came back up and when the animal came up to where we were he turned.”

The witness further stated the animal saw the horsemen and ran in an opposite direction (from the horsemen) to where the men were working, and that the men were working at that time. He stated:

“The horsemen ran the steer through the gang of men — that is the way it was. The horsemen ran the steer through the crowd. When the horsemen ran the steer through the crowd, the men were at work.”

This testimony was practically undisputed and insufficient to authorize and sustain the jury’s finding to the effect that the ap-pellee’s injury was the proximate result of negligence on the part of appellant or its foreman, Lambert. It fails to show that ap-pellee suffered any injury as a result of his efforts to drive the steer from appellant’s track in obedience to the instructions given by the foreman, Lambert. On the contrary, it appears therefrom that the object and purpose of the instruction had been accomplished without injury to appellee, and that whatever injury he sustained was received after such danger as he may have been exposed to by the instruction of the foreman to drive the steer from the track had ceased and he and his colaborers had returned to work and were proceeding in the usual way in the performance of their duties. When the steer went upon the track the second time the instruction to drive him from it was not repeated, but on the contrary the section men, as soon as the foreman discovered indications of danger from the appearance and action of the steer, were told to run to a place of safety. The evidence further shows that after the steer had been driven from the railroad track and had - again gone upon it, the men on horseback, who were endeavoring to drive ■him back to the herd, came rapidly up, and that the steer then rushed through the section men and injured the appellee. Thus it appears, we think, that the cause of appellee’s injury was independent of the instruction of the foreman. So that, the evidence being as related, it cannot be said, we think, that the instruction of the foreman in the first instance to drive the steer from the track was the proximate cause of appellee’s injury, ■or that said foreman failed to exercise ordinary care for the safety of the appellee.

There are several assignments of error •which have not been discussed because we •deem it unnecessary to do so. What we have said disposes of the controlling questions .arising on this appeal, and for the reasons stated the judgment of the court below will be reversed, and the cause remanded.

Reversed and remanded.

On Motion for Rehearing.

We have carefully considered the appellee’s motion for a rehearing, and conclude that it presents no good reason for a change of the views expressed in our original opinion. That opinion is not, we believe, in conflict with cases cited by appellee. The contention to the effect that the appellant having asked that the question of the negligence of its foreman be submitted to the jury and having invited an answer upon the issue as to the cause of appellee’s injury, it cannot be heard to say there was no evidence to support those issues, is not sound. The appellant not only requested the trial court to direct the jury to return a- verdict in its favor on the ground that there was no evidence showing negligence on its part proximately causing appellee’s injury, but in asking the submission of issues used the following language:

“The court having refused defendant’s special charge No. 1 (which was the peremptory instruction asked), the defendant, without admitting that there are any issues of fact that should be submitted, requests that if issues of negligence be submitted they be submitted in the following form.”

Then follow the issues requested to be submitted. Having requested a peremptory instruction and having qualified its requests for the submission of the issues presented in the manner stated, appellant did not preclude or estop itself from asserting and insisting on appeal to this court that there was no evidence raising such issues. The rule that where a party unqualifiedly requests the submission of an issue it will not be heard to say on appeal that the issue was not raised by the evidence, is not applicable in such a case.

The motion for rehearing is overruled.
      >Kor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes