author: HODGES, J.

text:
    TEXAS TRACTION CO. v. NENNEY et al.
    (No. 1474.)
    (Court of Civil Appeals of Texas. Texarkana.
    June 3, 1915.
    Rehearing Denied June 24, 1915.)
    1.Master and Servant &wkey;>248 — Injuries to Servant — Contributory Negligence — Discovered Peril.
    Where the injured railroad employe was guilty of negligence in failing to flag an approaching car, but such ear approached the motor ear whereon the injured servant was riding, so that the employés in charge discovered the motor car ahead, and that a collision was imminent, in time to have stopped their car before the collision, had they endeavored to do so, instead of jumping, the injured servant’s recovery was not necessarily barred by Ms negligence.
    [Ed. Note. — For other cases, see Master and Servant, Cent, Dig. §§ 801-804; Dec. Dig. c&wkey;-248.]
    2. Master and Servant <&wkey;281 — Injuries to Servant — Action — Contributory Negligence— Sufficiency of Evidence.
    In an action for injuries to a railroad employe when the motor car on which he was riding was struck by another car, forcing him to jump, evidence held insufficient to show that the servant’s negligence in failing to flag the car was the proximate cause of the accident.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 987-996; Dec. Dig. 281.)
    3. Negligence <&wkey;136 — Proximate Cause-Question for Court.
    The question of proximate cause is nearly always for the jury, but sometimes the evidence is such that it becomes an issue of law for the court.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 277-353; Dec. Dig. &wkey;136.]
    4. Death <&wkey;58 — Action—Proximate Cause —Burden of Proof.
    In a suit for injuries resulting in death, the plaintiff must show that the injuries were the proximate cause of the death.
    [Ed. Note. — For other cases, see Death, Cent, Dig. §§ 75-78; Dec. Dig. &wkey;58.]
    5. Death <&wkey;76 — Injuries to Servant — Cause of Death — Sufficiency of Evidence.
    In an action against a railroad for death of its employé, evidence held insufficient to show that injuries received when jumping from a motor car about to be run into by another car were the proximate cause of deceased’s death, by tuberculosis.
    [Ed. Note. — For other cases, see Death, Cent. Dig. § 94; D'ec. Dig. <&wkey;76.]
    6. Negligence <&wkey;59 — “Proximate Cause.”
    An act of negligence is the “proximate cause” of an injury, if the injury is the natural and probable consequence of the negligent act, and should have been foreseen as its result in the light of the attending, circumstances.
    [Ed. Note. — For other cases, see Negligence,. Cent. Dig. § 72; Dec. Dig. <&wkey;59.
    For other definitions, see Words and Phrases, First and Second Series, Proximate Cause.]
    Appeal from District Court, Collin Coun ty; M. H. Garnett, Judge.
    Action by J. P. Nenney, Jr., and others against the Texas Traction Company. Judgment for plaintiffs, and defendant appeals..
    Reversed, and cause remanded.
    Crane & Crane, of Dallas, J. R. Gough, of McKinney, and Templeton, Beall & Williams, of Dallas, for appellant. Clarence Merritt, of McKinney, for appellees.
   HODGES, J.

In December, 1912, J. P. Nenney, Jr., was injured while employed in the service of the Texas Traction Company, the appellant. The circumstances under which the injury occurred are substantially as follows: Nenney was employed as a flagman, whose duty it was to accompany one of the appellant’s work trains engaged in hauling and distributing gravel over its track. On this occasion the gravel train, after having been loaded at the pit located on a spur track, moved onto the main line, and thence south to what is referred to in the testimony as Kirkland’s Switch. It there went in on the siding at the north end and stopped near the south end of the switch. After being disconnected from the other cars, the motor car moved out on to the main line at the south end of the switch, with a view of going to the north end and again entering upon the siding; the purpose of the employés being to shift the motor car from the south end of the train to the north end in order that it might be in front when they carried their load to its destination to some point north. Kirkland’s Switch was designated as a passing point; and on the morning of December 12th, when this injury occurred, this gravel train had orders to go upon the siding and allow an express car from the north and a passenger car, referred to as the “Limited,” from the south, to pass. Nenney, whose deposition was taken prior to his death, testified as follows as to the circumstances immediately preceding his injury:

“Wo had been to the gravel pit after gravel, and were going down to Kirkland, where we had a siding, to set the cars in to run around them. We had pulled on to the south end of the switch. I got off the car, opened the switch, and set the cars on the siding. It was only a few minutes until the Limited was due. I closed the switch, thinking they would stay on the siding, but saw they were coming out, so opened the switch to- let motor car out on main line. They came out, and Smith said we would have to hurry, as the Limited would be there in a few minutes. I closed the switch and got on the front end of the car and started to the north end of the switch. Before we got there I saw the express car coming. I pulled my danger signal on the express crew, and saw the messenger make a run and jump. The motorman on the express car got down on steps and jumped off. I looked back, saw my crew was jumping off, so I jumped too.”

In jumping from the car under the circumstances detailed above, Nenney received injuries about his hips and stomach which disabled him for some time and confined him to his bed for several weeks. He subsequently recovered sufficiently to be able to walk with a stick, but was never able to resume his regular work or to do any other character of labor. In February following the injury, Nenny contracted grippe. Later tuberculosis followed, from which he died. A short time before his death, Nenney had filed a suit against the appellant to recover damages for the injuries he had sustained. After his death, what is designated as an “Amended Plea in Intervention” was filed in the same suit by his widow for herself and as next friend for her minor child, joined by the father and mother of the deceased.

The petition alleged that Nenney was injured as the result of negligence on the part of the appellant’s employés in charge of the express car in running at a high and excessive rate of speed in violation of the rules of the company, in failing to have the car under control when approaching Kirkland’s Switch, and in failing to keep a proper lookout for cars in front. It was also alleged that those employés discovered, or by the exercise of ordinary care could have discovered, the presence of the motor car on the main line in time to have stopped and prevented the collision, had they used the means at their command. Other acts of negligence not necessary to mention, were also charged. It was further alleged that Nenney, at the time of his injury, was a young man in good health, 29 years of age, and capable of earning $100 per month; that by reason of the injury his nervous system was shocked and so greatly weakened and his vitality lowered to such an extent that he was unable to resist and throw off disease; that he was thereby rendered more susceptible to the contraction of disease; and that he did contract tuberculosis, from which he died as the result of his injuries. It is alleged in the alternative that, if mistaken in the averments that Nenney died as the result of the injuries, then it is alleged that he did not die in consequence thereof; that prior to his death, and as a result of his injuries, he suffered great physical and mental pain and incurred ’ large expenses for the services of physicians. All of the facts necessary to authorize a recovery for an injury which did not result in death are fully set out. While it is true the father and the mother were parties to this count of the petition, no objection appears to have been made to it by reason of that fact.

At the conclusion of the evidence, the appellant requested a peremptory instruction in its favor. This was refused by the court, and the case was submitted on special issues. The answers of the jury upon all the issues of negligence were favorable to the appellees. The jury further found that the injuries sustained by Nenney in jumping from the car at the time were the proximate cause of his death. They found that his widow sustained damages in the sum of $4,150 and his minor child damages in the sum of $6,000 by reason of his death.

The refusal of the court to give the appellant’s peremptory instruction is the basis of the first group of assigned errors. It is contended that this charge should have been given because the uncontroverted evidence shows that the collision occurred as the result of Nenney’s failure to perform his duties as flagman; that he was not at the proper place in the line of his employment; that he failed to leave torpedoes upon the track some distance from the motor car in order to give warning to the belated express car; that, by reason- of his negligence, the em-ployés in charge of the express car were placed in a perilous situation and were caused to jump from and leave that ear at the time they did. It is also contended that this peremptory instruction should have been given 'because the evidence shows, as a matter of law, that the injuries sustained by Nenney were not the proximate cause of his death.

Assuming, that Nenney was himself guilty of negligence in failing to perform his duties as flagman on that occasion, the peremptory instruction should not have been given, because of the facts raising the issue of discovered peril. The testimony offered by the appellees tended to show that the employes of the appellant, who were in charge of the express car, were in a position to discover, and did discover, the presence of the motor car upon the main line, and that a collision was imminent, in time to have stopped their car and avoid a collision. Instead of doing this, it appears that they jumped from the car, thus making a collision inevitable. It was only after they had abandoned the car that Nenney made his jump. A peremptory instruction would have ignored that feature of the evidence and that ground of recovery. Furthermore, we are not inclined to hold that the evidence shows, as a matter of law, that Nenney was guilty of the negligence which proximately brought about that unfortunate condition of affairs. The testimony upon that issue was such that the jury were justified in concluding that Nenney was acting in the line of his duty, and that the accident was due solely to the negligence of those in charge of the express ear.

But it is insisted that a judgment •based upon a finding that the injuries received by Nenney were the proximate cause of his death is without support in the evidence. It is undisputed that the immediate cause of Nenney’s death was pulmonary tuberculosis contracted in March following the date of his injuries. The physican who attended and treated his injuries, and who also treated him several times during his last illness, testified at length upon the trial, both as an expert and as to the details of Nenney’s condition. This testimony shows that Nen-ney was injured mainly about the hips and back, which confined him to his bed about three weeks or less. He was then able to sit up, and in about two weeks later able to walk around on crutches. Subsequently, and within a short time, he discarded his crutches and used only an ordinary walking stick. At that time he had regained much of his lost flesh and was progressing satisfactorily to his physican, and in the latter’s opinion had about attained his normal condition. It was also shown that Nenney was talking of resuming work within a short time. In fact, he had improved to such an extent that it was considered only a question of a few days when he would go back to work. Some time in February his physican was again called in and found Nenney suffering from a severe attack of grippe. Nenney stated that he had been to Dallas and had exposed himself to unfavorable weather conditions; that his feet had become damp and cold. Grippe at that time, according to the evidence, was prevalent in the country, and attacked the strong as well as the weak. On account of his brother having previously died of tuberculosis, Nenney had for some time been apprehensive that he would likely fall a victim to the same disease, and he communicated his fears to his physician. When called in to treat him for grippe, the physican made an examination of Nenney’s lungs to ascertain if they were involved. He found nothing to indicate that they were. Two weeks later he made another examination and found numerous tubercular germs in the sputa of the patient. Nenney was then still suffering from the effects of the grippe. When this discovery was made, he was placed under treatment for tuberculosis, and finally sent to the state institution for tubercular patients at Carlsbad. He continued to grow worse, and later returned to his home, where he died in August, about eight months after receiving his injuries. The attending physican gave it as his opinion that those injuries had nothing whatever to do with causing the death of Nenney. Other physicans, who testified from hypothetical statements of facts, gave concurring opinions. There is no evidence in the record to the contrary. The widow and mother of the deceased stated that he never ceased to complain of his stomach, and that he had not, when attacked by the grippe, fully regained his normal health. This fact also appears from portions of the deposition of Nenney taken prior to his death and after the institution of his suit. All of the physicians who testified upon the trial stated that tuberculosis is now regarded as a bacterial disease due to the infection of specific germs, and that one whose physical condition had been weakened by any character of disorder would be less able to resist the ravages of such germs after infection. They also testified that the grippe usually produces a condition of the physical system which furnishes a fertile field for the development of the tubercular bacilli. The fact that Nenney was progressing so well towards recovery, and had about regained his normal condition at the time he was attacked by the grippe, was regarded by his physician as satisfactory evidence that he would not have succumbed to any tubercular infection had he not been attacked by the grippe.

The question of proximate cause is nearly always one for the jury; but sometimes the state of the evidence is such that it becomes an issue of law for the court to determine. In every case the burden of proving that the misconduct complained of as the proximate cause alleged injuries, for which a recovery is sought, rests upon the plaintiff in the action. Where the suit is for injuries resulting in death, the plaintiff must show that, but for the injuries, death would not have resulted. We do not think the plaintiffs in this suit have discharged that burden. There is in the record no legal evidence from which the jury could reasonably infer that the injuries sustained by Nenney in December contributed in any way to bis death in August following. We may concede the contention of the appellees that the injuries complained of bad so weakened Nenney’s condition and reduced what the physicians termed bis “resisting power” as to make him less able to .combat the disease when once infected; but we cannot overlook the fact that there is nothing in the evidence to indicate that this debilitated condition brought about tbe infection itself. The effect of tbe injuries,- regarded from the standpoint most favorable to the appellees, was merely to produce a condition upon which another and an independent cause, tbe tubercular bacteria, might enter and operate. That such an infection is sufficient to cause death of those in normal health, when attacked, is a matter of common knowledge. There was a time in the history of medical science when pulmonary tuberculosis was not regarded as a bacterial disease, but was looked upon as tbe natural result of certain forms of debility. But that theory has been abandoned, and no person is considered as subject to that disease until exposed to the infection from specific pathogenic bacteria. We think the evidence was insufficient to support the particular judgment rendered. Railway Co. v. Bigham, 90 Tex. 223, 38 S. W. 162; Seale v. Railway Co., 65 Tex. 274, 57 Am. Rep. 602; H. & T. C. Ry. Co. v. Gerald, 128 S. W. 166 ; Reynolds v. Railway Co., 101 Tex. 2, 102 S. W. 724, 130 Am. St. Rep. 799.

This insufficiency is apparent when the facts are viewed from still another standpoint. Passing by the many refined technical definitions given by the courts in their efforts to make plain the meaning of the term “proximate cause,” we prefer the test adopted by the Supreme Court of the United States in an early decision and approved by the Supreme Court of this state in the Bigham Case, above referred to:

“But it is generally held that, in order to warrant a finding- that negligence, or an act not amounting- to a wanton wrong, is the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the negligence or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances.”

Justice Gaines, continuing, said:

‘‘It follows that, in our opinion, the question of probable cause ought to depend upon the further question whether a reasonably prudent man, in view of all the facts, would have anticipated the result, not necessarily the precise actual injury, but some like injury, produced by similar intervening agencies.”

Bearing in mind this rule, can it be said that the agents of the appellant, whose misconduct caused the injuries to Nenney, should .at the time have contemplated that he would receive some physical injuries, that these would cause -a debilitated condition of his physical system, and that he would, in consequence thereof, fall a victim to some bacterial disorder ? It requires no expert testimony to inform tbe courts that comparatively few people affected by traumatic injuries fall victims to such disorders by reason of their debilitated condition. A probable consequence may be regarded as one more likely to follow an injury than not to follow it. Society furnishes numerous instances of debilitated physical systems and depleted vital forces which are not followed by any bacterial diseases. On the other hand, it is a matter known to all that pulmonary tuberculosis is a scourge which attacks the normal as well as the abnormal.

The absence of testimony, however, sufficient to support a finding that Nenney’s death was the proximate result of his injuries, did not call for a peremptory instruction in the present state of the record. The evidence was such that a recovery was permissible upon that count in the petition which asked for damages for injuries which did not result in death. The judgment, however, should be reversed, because predicated upon untenable grounds.

Tbe remaining assignments, which do not involve the proposition discussed, are overruled.

The judgment will be reversed, and the cause remanded for a new trial.
      other eases see same topic and KEY-NUMBEB in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: LANE, J.

license: Public Domain

text:
    WILLIAMSON et al. v. MILLER-VIDOR LUMBER CO.
    (No. 6872.)

    (Court of Civil Appeals of Texas. Galveston.
    May 17, 1915.
    Rehearing Denied June 24, 1915.)
    1. Adverse Possession <&wkey;112 — Burden of Proof — Pact of Possession.
    In an action to recover land claimed by adverse possession under the 10-year statute of limitations, the burden is on plaintiff to show that he held peaceable and adverse possession of the land, either actually or constructively, for such time as would give him title.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 651, 653, 654, 657-659, 661-663, 665, 666; Dec. Dig. &wkey;>112.]
    2. Adverse Possession &wkey;>100 — Extent of Possession — Boundaries.
    Plaintiffs, in an action to recover land claimed under the 10-year statute of limitations, entered and improved a 12-acre tract within a prior patent, which in turn was included within the patent under which defendants claimed. Plaintiffs’ claim included also a part of the land covered by defendants’ patent, not included within the patent containing the 12-acre lot. Meld, that plaintiffs could not claim beyond the boundaries of the patent, wherein was located the 12-aere lot containing the improvements.
    [Ed. Note. — Por other cases, see Adverse Possession, Cent. Dig. §§ 547-574; Dec. Dig. &wkey;> 100.]
    3. Public Lands <&wkey;176 — Adverse Possession-Prior Acquisition of Title — Prior Patents.
    Plaintiffs, in an action to recover land under claim of adverse possession for 10 years, cannot question the validity of a patent from the state covering part of the land claimed and ex-ecu.tcd before their possession had ripened into title.
    [Ed. Note. — Eor other cases, see Public Lands, Cent. Dig. §§ 571-575; Dee. Dig. &wkey;176.]
    4. Public Lands <&wkey;176 — Validity oe Patent — Who mat Attack.
    Only the state or one holding a prior legal or equitable claim to real estate can set up the illegality in a patent from the state.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 571-575; Dee. Dig. &wkey;176.]
    Appeal from District Court, Jasper County; A. E. Davis, Judge.
    Action by P. P. Williamson and others against the Miller-Vidor Lumber Company, to recover land. From a judgment apportioning the land between the parties, plaintiffs appeal.
    Affirmed.
    John B. Warren, of Houston, for appellants. Townes, Foster & I-Iardwicke, of Beaumont, for appellee.

       Writ of error pending in Supreme Coart.

   LANE, J.

In 1874 one Ingalls, a surveyor, surveyed and located 160 acres of land in Jasper county, known as the Wm. Williamson pre-emption, with its north line running due east and west for a distance of 916 varas and its east line running due north and south for a distance of 846 varas. In 1876 the same surveyor surveyed and located a section of 640 acres of land lying partly in Jasper and partly in Orange counties, known as T. & N. O. survey No. 82. In making this survey, he began at the southeast corner of the T. & N. O. survey No. 81, which was located just north of said survey No. 82, and then ran due south 2,726 varas; thence due west 694 varas to the southeast corner of the said Wm.. Williamson pre-emption; thence due north with the east line of said Williamson pre-emption 846 varas to its northeast comer; thence due west with the north line of said Williamson pre-emption 916 varas to its northwest corner; thence due north 1,880 varas to the southwest corner of T. & N. O. survey No. 81; thence due east with the south line of said T. & N. O. survey No. 81, 1,610 varas to place of beginning. The T. & N. O. survey No. 82, up to the 18th day of May 1901, was public land. On the date last named the said survey No. 82 was patented by the state to one J. W. Sanders. On April 18, 1902, J. D. Sayers, Governor of Texas, conveyed to one Wm. Williams a tract of 130 acres of land, as segregated or detached scrap land, lying just north of the said Wm. Williamson pre-emption, which is bounded as follows: Beginning at the northwest comer of said Williamson pre-emption; thence due east 916 varas with the north line of the said Williamson preemption to its northeast corner; thence due north 800 varas for comer; thence due west 810 varas for corner; thence due south 800 varas to beginning. This last-named tract is embraced within the designated boundaries of said survey No. 82 patented to said J. W. Sanders, which is now claimed by the Miller-Vidor Lumber Company, appellees herein. At some time between’ 1896 and 1900 P. P. Williamson, appellant herein, took possession of and improved and inclosed some 10 or 11 acres of land lying about 600 or 700 varas north of the Williamson pre-emption and about 700 varas east of the west line of said survey No. 82, and which was, at the time he took possession thereof, wholly within the boundary line of said survey No. 82, as originally located, and as later described in the patent to Sanders. All of the improvements of said P. P. Williamson which were placed on said land for more than 10 years next prior to the filing of this suit was wholly within the boundaries of the Wm. Williams 130-acre tract. Por a better understanding of the location of the various tracts of land above described and the location of the improvements of the appellant Williamson, we attach hereto a map or plat of said land, to wit:

Assuming as correct the location of the surreys as platted above, we have marked in dotted lines the location of the land sued for by appellants as described in their petition. The cross mark indicates so much of the land sued for as is embraced within the boundaries of the Wm. Williams survey. The location of the improvements of the plaintiffs Williamson are indicated by the square on the plat.

Appellants P. P. Williamson and wife, E. I. Williamson, and R. C. Conn, brought this suit against the Miller-Vidor Lumber Company on the 15th day of March, 1913. Appellants Williamson by said suit seek to recover from said lumber company title to tbe 160 acres of land described in tbeir petition, and shown by tbe dotted lines on tbe plat above. They base tbeir right to sucb recovery on tbeir plea of 10-year statute of limitation. Tbey pray for judgment for tbe 160 acres of land described in tbeir petition, but that, in tbe event tbe court should find that sucb recovery would not be an equitable partition between them and defendant, then tbey pray that tbe court appoint commissioners to make partition between said parties, and that said commissioners be directed to survey out and describe 160 acres of land out of tbe T. & N. O. survey No. 82 for them so as to include tbeir improvements, which would be equitable to all parties.

Plaintiff! R. O. Oonn sues to recover tbe growing timber on tlie land in question as a purchaser thereof from Williamson; and hence bis right to recover herein depends entirely upon tbe recovery of Williamson.

Defendants Miller-Yidor Lumber Company answered: First, by plea in abatement because of misjoinder of causes of action and parties; second, by general denial; and, third, by its trial amendment as follows:

“Comes now Miller-Vidor Lumber Company and with leave of the court files this its trial amendment and shows: That it does not claim: and has never claimed any of the land embraced within the boundaries of the Wm. Williams survey, partly in Orange and partly in Jasper county, Tex., as described in the patent thereto, issued to said Williams April 18, 1902, patent No. 439, volume 23, and defendant now disclaims said land. Defendant prays that this be considered a part of its first amended original answer.”

Upon these pleadings tbe case was tried before a jury. After both parties bad closed tbeir evidence, tbe court, upon motion of defendant, instructed tbe jury as follows:

“You are instructed to find for the defendants Miller-Vidor Lumber Company, the Texas & New Orleans Railroad section No. 82, and for the plaintiffs P. P. Williamson and E. I. Williamson, for all of the land sued for by plaintiffs situated on the Wm. Williams survey, and you will further find for the plaintiff R. C. Conn all the pine timber situated on the land sued for by plaintiffs P. P. Williamson and E. I. Williamson situated on the William Williams survey.”

Upon the foregoing instructions tbe jury returned tbe following verdict:

“We, the jury, find in favor of the plaintiffs X’. P. Williamson and E. I. Williamson for all the land sued for that is included in the bounds of the W. W. Williams survey of 130 acres of land, patent No. 439, volume 23. We also find for defendant the Miller-Vidor Lumber Company all of the land and timber on section No. 82, patent No. 267, volume 2, that is not on the W. Williams survey and claimed by the defendants in tbeir petition. We also find for plaintiff R. C. Conn for the pine timber on the land above awarded to plaintiffs Williamson.”

Upon this verdict the court entered judgment for plaintiffs Williamson for sucb portion of tbe land as sued for by them as is included in tbe boundaries of tbe Williams survey of 130 acres, and for tbe defendant Miller-Vidor Lumber Company all tbe land included within tbe boundaries of tbe said T. & N. O. survey No. 82, except sucn as is included in tbe boundaries of tbe said Williams survey, and for plaintiff Conn tbe pine timber on tbe land awarded to tbe William-sons.

From this judgment, plaintiffs have appealed.

Tbe effect of tbe first, second, third, fourth, and fifth assignments of error is that tbe trial court erred in instructing tbe jury as to its verdict upon motion of defendants: First.- Because there was evidence sufficient to require tbe court to submit to tbe jury tbe question as to whether tbe plaintiffs bad acquired title to the land sued for by the statute of limitation of 10 years. Second. Because there was evidence tending to show that plaintiffs bad acquired title to 160 acres of land, including tbeir improvements, and were entitled to have tbe jury locate tbe same for them or to have tbe same located by commissioners appointed by tbe court. Third. Because tbe undisputed evidence showed that plaintiffs held peaceable and adverse possession of the land sued for, claiming tbe same as their own for 10 years prior to tbe institution of this suit; that the title to tbe land sued for bad passed from tbe state at tbe time plaintiffs took possession of same, and that tbe fact that subsequently tbe state conveyed to Wm. Williams 130 acres of a larger body of patented land, which said 130 acres included in its boundaries tbe whole of plaintiffs’ improvements, would not confine plaintiffs’ claim of title by limitation within tbe boundaries of said 130 acres conveyed to said Williams. Fourth and fifth. That tbe undisputed evidence shows that plaintiffs bad held adverse and peaceable possession of tbe 160 acres of land claimed by them for more than 10 years prior to tbe institution of tbe suit.

We find: First. That there is no evidence tending to show that plaintiffs claimed or held any portion of tbe land sued for, except about 10 or 12 acres upon which their bouses, lots, and fields are situated for a term of 10 years prior to bringing this suit, and that all of said improvements are within tbe boundaries of tbe Wm. Williams survey, and within that portion of said survey shown by the cross marks in the plat or map above; that a small part of the old field of tbe original improvements is not included within tbe boundaries of tbe land sued for, nor was about 40 acres of tbe land which tbey bad inclosed in tbeir pasture for four or five years so included. Second. That some time prior to May 18,1901, plaintiffs built bouses, lots, and small fields upon about 10 or 12 acres of land within the boundaries of tbe T. & N. O. survey No. 82, and moved thereon, and that tbey have so resided ever since; that on said 18th day of May, 1901, tbe state of Texas patented all of said survey No. 82 to J. W. Sanders; that on tbe 18th day of April, 1902, J. D. Sayers, Governor of Texas, conveyed to one Williams the tract of 130 acres shown on the plat above, which is taken from the said survey No. 82 as patented to Sanders; that plaintiffs’ original improvements are all situated on said Williams survey; that up to or about January 2, 1913, at which time plaintiffs conveyed certain timber to R. O. Oonn, they never claimed any certain part of said survey No. 82 and up to about 4 or 5 years prior to bringing this suit had only 10 or 12 acres in their possession; that about 4 or 5 years prior to bringing this suit they built a fence around about 65 acres of said survey No. 82, about one-third only of which is embraced in the boundaries of the land sued for; that by this suit and the answer filed by them in cause No. 3315, styled Miller-Yidor Lumber Go. v. Williamson, in the district court of Orange county, in the early part of 1914, plaintiffs abandoned and disclaimed any former claim they had to any portion of said survey No. 82, except that part which is described in their petition in this suit. We also find that the evidence shows that, prior to bringing this suit, appellants never openly or adversely claimed any portion of said survey No. 82 outside the boundaries of the Wm. Williams survey, and that up to or about that date they had never asserted title or claim to any part of the land described in their petition, except that part shown in cross- marks on above plat, which consisted of about 10 or 12 acres, wholly on the Williams survey. Third. That as plaintiffs were suing to recover title to 160 acres of land, under the statute of limitation, the burden of showing that they had held peaceable and adverse possession of some certain land either actually or constructively for such time as would give them title, was upon them, and that there was no such showing made in this case.

We conclude that as plaintiffs were upon the land covered by their original improvements, consisting of about 10 or 12 acres only, which was wholly on the Williams survey of 130 acres, they cannot claim beyond the boundaries of said Williams survey, and, as they were mere trespassers upon the land, they were not in a position to question the validity of the conveyance of the state of Texas to Williams, and as their possession had not ripened into a title by time, prior to such conveyance to Williams, they cannot question its validity. They cannot be heard to say to the state that, if you had not conveyed this land to Williams, we would have been entitled to recover a larger tract from Miller-Vidor Lumber Company on our plea of limitation, and therefore we question your authority to make said conveyance.

Since the land was patented by the state to Williams, the legal title passed to the patentee, and no one but the state or some one holding a prior legal or equitable claim could set up the illegality of the patent to Williams. See McLeary v. Dawson, 87 Tex. 524, 29 S. W. 1044; Dawson v. McLeary, 25 S. W. 705; Gullett v. O’Connor, 54 Tex. 416; Decourt v. Sproul, 66 Tex. 368, 1 S. W. 337; Yarbrough v. De Martin, 28 Tex. Civ. App. 276, 67 S. W. 177.

For the reasons above stated, we conclude that the court did not err in giving the instructions complained of in appellants’ assignments 1, 2, 3, 4, and 5. They are therefore overruled.

Appellant’s sixth assignment insists that the title to the land lying west and south of the land awarded to appellants was in issue, and, as the judgment rendered did not dispose of such issue, such judgment is void. There is no merit in such contention. Appellants sued for the land described in their petition after having abandoned and disclaimed any title to any other land on said survey No. 82, as described in the patent to Sanders, and appellee had specially disclaimed as to the land referred to in said assignment, and therefore the title to same was not in issue in this suit. We therefore overrule said sixth assignment.

We have examined appellants’ seventh assignment and overrule same.

We also overrule appellants’ ninth assignment, which insists that the court erred in overruling appellants’ motion to retax the costs, all of which was taxed against appellants.

We find no such error committed in the trial of this cause in the court below, if any, as should cause the reversal of judgment of the trial court, and therefore said judgment is affirmed.

Affirmed.
      <g^jFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <S=jEor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    HALL v. SHOEMAKE.
    (No. 6946.)

    (Court of Civil Appeals of Texas. Galveston.
    June 2, 1915.
    Rehearing Denied June 24, 1915.)
    1. .Appeal and Error <§=3764 — Bribes—Rules oe Court.
    A brief, typewritten in single space on thin tissue paper,. and hence almost unreadable, is in direct violation of Rules for Courts of Civil Appeals 29, 37 (142 S'. W. xii, xiii), regulating the preparation of briefs.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. § 3099; Dec. Dig. <&wkey;764.]
    2. Adverse Possession <&wkey;112 — Burden oe Proof.
    In trespass to try title, the burden of proof is on a defendant, relying upon title by adverse possession, to prove facts giving such title.
    [Ed. Note. — Por other cases, see Adverse Possession, Cent. Dig. §§ 651, 653, 654; 657-659, 661-663, 665, 666; Dee. Dig. &wkey;112.]
    3. Adverse Possession <&wkey;114r-SuEEiciENCT oe Evidence.
    In trespass to try title, where defendant set up title by adverse possession, evidence held insufficient to show such possession and use by defendant’s predecessor as would give him and his successors title under the statute.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 682, 683, 685, 686; Dec. Dig. &wkey;3ll4.]

    Action by B. M. Hall against R. S. Shoe-make. Judgment for defendant, and plaintiff appeals.
    Reversed, and judgment rendered for plaintiff.
    June C. Harris and Audley Harris, both of Nacogdoches, for appellant. Y. E. Mid-dlebrook, of Nacogdoches, for appellee.

       writ of error pending in Supreme Court.

   LANE, J.

On the 27th day of September, 1848, the board of land commissioners of Nacogdoches county, Tex., issued a headright certificate to B. M. Hall. On the 28th day of March, 1853, H. H. Edwards, administrator of the estate of Chas. Chevallier, filed an inventory of the properties of said estate, and among the items of property listed was the certificate issued to B. M. Hall above mentioned. On the 5th day of August, 1857, said administrator, by virtue of an order of the probate court of Nacogdoches county, theretofore made, sold, and conveyed in writing, the headright certificate issued to B. M. Hall to L. S. Roberts. This conveyance was properly recorded in the deed records of Nacog-doches county, where the land in question is located, and where B. M. Hall, Sr., resided until his death, and where B. M. Hall, plaintiff in this suit, has resided since 1848. On the 29th day of October, 1857, L. S. Roberts, the assignee of Edwards, conveyed said certificate to James R. Arnold, which conveyance was also recorded in said county. On October 29, 1857, James R. Arnold, assignee of Roberts, conveyed to T. J. Collins, of Nacogdoches county, the whole of the land located by virtue of said certificate issued to Hall, which said deed of conveyance was also recorded in the deed records of said county. On the 13th day of June, 1859, after the execution of the above-mentioned instruments, and after the certificate in question had been transferred by Edwards to Roberts, and by Roberts to Arnold, and by Arnold to Collins, H. R. Runnells, Governor of Texas, patented to “B. M. Hall, his heirs or assigns” 419Vio acres of land lying in Nacogdoches county, reciting in said patent that the same was for the unlocated balance of the head-right certificate issued to B. M. Hall on the 27th day of September, 1S48. On the 9th day of January, 1S60, T. J. Collins by deed conveyed to Jessie H. Muckleroy 50 acres of land described as follows:

“Said 50 acres is taken out of the N. E. corner of my tract of land located by virtue of head-right certificate issued to B. M. Hall, lying in Nacogdoches county about 10 miles S. W. of the town of Nacogdoches, and is bounded on the north by Aleck Ramsey, on the east by Joseph or John Tisdale, and on the west by E. Young tract of land.”

Prior to the execution of this last-named deed Collins had conveyed 190 acres out of the north end of said Hall 419Vio-aere survey to one Ramsey or Rambin, and about 100 acres out of the eastern part of said survey to one Tisdale. The E. Young tract mentioned in said deed is located just west of the 50 acres conveyed to Muckleroy. The Muckleroy tract is the same land which was conveyed by Acosta to Henry Young, the former husband of Mrs. Grim, through whom appellee Shoemake claims, which said tract will be more fully described hereafter. On the 13th day of October, 1864, T. J. Collins by deed conveyed to James L. Smith the whole of the B. M. Hall land patented in 1857, except those tracts theretofore conveyed to Ramsey, Tisdale, and Muckleroy, said balance being about 115 or 120 acres. On the 17th day of November, 1869, M. A. Acosta conveyed to Henry Young, former husband of Mrs. Grim, the assignor of appellee Shoemake, 50 acres of the Hall headright, described as follows:

“Bounded on the north by Aleck Ramsey, on the east by Joseph or John Tisdale, and on the west by E. Young, being the same land sold by Collins to Muckleroy. Henry Young built his residence in the north corner of this tract about the year 1872, and lived thereon until his death. He also built a mill or gin thereon, and made other improvements thereon. Such title to the land in controversy as passed to Smith by deed from Collins passed by mesne conveyances to appellant, B. M. Hall. That the description and location of the various tracts of land mentioned herein may be better understood we attach hereto a small plat, showing their respective locations, and also showing the location of the former residence and mill of Henry Young, deceased, and also the house known as the Archer place.

On the above plat the tracts of land and. other objects necessary to be located are shown as follows: The B. M. Hall 419Vio acre survey beginning at A runs N. 9° E. 1,923 varas to B: thence W. l,270Vi o varas to C; thence S. l,579Vio ''’’aras to D; thence W. 670Vio varas to E; thence S. 23 varas to F; thence W. SI varas to 6; thence S. 269Vio varas to H; thence E. 1,721 varas to beginning A. The corners of the Ramsey tract are designated by the letter R; the corners of the Tisdale by the letter S; the E. Young by the letter T; the Henry Young 50 acres by the letter X; the house of Henry Young by the letter Y; his mill by the letter M; the Archer house by the letters EY; and the land sued for by the dotted lines.

Appellant B. M. 1-Iall instituted this suit in the district court of Nacogdoches county on the 22d day of August, 1911, in the ordinary form of trespass to try title to recover from appellee R. S. Shoemake the land described in his petition, shown by the dotted lines on the plat attached hereto, containing about 115 acres. By his original petition he sues for himself and in behalf and for his brothers and sisters. Appellee Shoemake answered: First, by plea of general denial and not guilty; second, by asserting title to the land sued for in fee simple; and, third, that he had title thereto under the statutes of limitation of 5 and 10 years. By his supplemental petition appellant pleaded cover-ture and minority for his brothers and sisters in avoidance of appellee’s plea of limitation. The ease was tried before a jury, a verdict returned for appellee, R. S. Shoe-make, and judgment entered accordingly.

Appellant presents for our consideration 23 assignments of error, but few of which are followed by statements in their support, and we are referred to the statement of facts, containing about 100 pages, for information. Appellant’s brief is typewritten' in single space on thin tissue paper' and for that reason is almost unreadable. Briefs' prepared in this manner are in direct violation of rules 29 and 37 for the Courts of Civil Appeals (142 S. W. xiii), and we take this opportunity to advise counsel that the rules referred to should be followed in the future.

The view we take of this case renders it unnecessary for us to take up and dispose of appellant’s numerous assignments in his brief, in the order they are therein presented.

The theory of the case, as presented by appellant Hall, is: First. That the head-right certificate by virtue of which the land in controversy was located and patented was issued to B. M. Hall, deceased; that said Hall had never transferred said certificate, nor the land patented thereunder, and therefore appellant, Hall, and his brothers' and sisters, to wit, Laura, Bendly, S. H. Hall, Martha Hall Dickinson, T. H. Hall, Elizabeth Kemper, Henry Hall, M. W. Hall, William Hall, Emma Whitehead, Roy Hall, Ida Hall, Beaulah Hall, and Jane Dickinson, the heirs of B. M. Hall, deceased, were owners of said land. Second. That if B. M. Hall did transfer the certificate to Chas. Chevallier before his death and the land was located and patented to the transferee, appellant is the owner of said land, as he purchased it from the assignees of said 'Chevallier into whom the title had passed long before the sale to one Henry Young by Collins is claimed to have been made. Third. That neither Henry Young, nor any one for him or holding under him, has had and held possession and' use of any part of the land in controversy for such time as would give appellee title under the statute of limitation. The theory of appellee is: First, that B. M. 1-Iall, deceased, before his death, transferred his said certificate to one Chas. Chevallier, and that through this transfer the title to the land in controversy passed into T. J. Collins, and that said Collins in or about the year 1872 sold and conveyed the same to Henry Young, deceased, and that he, appellee, purchased the same from Young’s widow, who is now Mrs. Grim; second, that he and those under whom he holds have had and held such possession and use of the land as would give him title by limitation.

After a most careful examination and study of the evidence we have reached the conclusion that the undisputed evidence shows that T. J. Collins, through whom appellant Hall claims legal title, independent of his claim as an heir of B. M. 1-Iall, deceased, on the 13th day of October, 1864, by deed, which is duly recorded, conveyed the land in controversy to James L. Smith; that Henry Young through whom appellee claims, bought from one Acosta a certain 50 acres of land, a part of the B. M. Hall survey, shown on the plat attached hereto, and that he moved to, and lived thereon, from about the year 1872, in his house shown by the plat, until his death in 1890, and from 1872 he never lived at any other place; that not until some years after he bought said 50 acres did he, or any one for him, claim that he had purchased and had conveyed to him any portion of said Hall survey except the said 50 acres upon which he lived, but all evidence introduced by appellee shows that if Henry Young ever purchased any portion of the Hall survey from Collins, such purchase was not until after the year 1872, and long, after T. J. Collins, from whom it is claimed he bought, had conveyed all of said land to J. L. Smith in 1864, through whom appellant claims. It is therefore evident that appellee is not entitled to recover upon his claim of title by purchase from Henry Young’s widow.

If it be conceded that the certificate which was issued to B. M. Hall, Sr., was never transferred to Chas. Chevallier, and through his administrator, H. II. Edwards, to T. J. ’Collins, then appellant, Hall, holds the legal title to the land in controversy as an heir of B. M. 1-Iall, Sr., deceased. On the other hand, if it be conceded that said certif-ieate was so transferred, and that the title to said land thereby, passed to T. J. Collins, then in that event, appellant Hall holds the legal title to the same, as he holds under the assigns of Collins, who purchased the land, as evidenced by a deed duly recorded, in 1864, 5 or 6 years prior to the time it is claimed by appellee that Collins sold the same, or any part thereof, to Henry Young, through whom he claims.

Since the undisputed evidence shows that appellant has title to the land in controversy, he must recover the same, unless appellee has shown that he has title under the statute of limitation, and the burden rests upon him to show such facts as-would give him such title before he can recover. Has he made such proof? The undisputed evidence shows that E. Young, was the father of Henry Young, under whom appellee claims title to the land in controversy; that E. Young and wife owned the land upon which the Archer house and inclosures in connection therewith is situated, which is no part of the Plall survey of 419 Vio acres; that at the time he died he left surviving him his wife, the mother of Henry Young; that Henry Young built or caused to be built, the Archer house, but for whom the house was built, or that Henry Young ever owned the Archer premises, is not shown. It is shown that a man by the name of Archer lived in the Archer house for about 2 years, that when he moved out some other persons moved in and lived there for 1 year; that when he moved out others moved in; that some four or five different persons lived in the Archer house altogether for 10 years or more; that during this time some one of the occupants inclosed a small field in connection therewith, which encroached upon the land in controversy, inclosing about 2 or 3 acres of the same; but it is not shown that these various persons were the tenants or agents of Henry Young. It was shown that said Young took timber for rails and sawlogs from the land in controversy. This is substantially all the proof made in support of appellee’s plea of limitation. Such proof, we think, wholly fails to show such possession and use of any part of the land in controversy by Henry Young as would give him, or those holding under him, title to the land under the statute of limitation.

It follows, therefore, that as appellant has shown by undisputed evidence that he is the owner of said land, and appellee has failed to prove title under the statute of limitation pleaded by him, the court below should have instructed a verdict for appellant; and, it further appearing that all the facts in connection have been fully developed, we here reverse the judgment of the lower court and here render judgment for the appellant.

Reversed and rendered.
      <§=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WILLSON, C. J.

text:
    FIDELITY & CASUALTY CO. v. JOINER.

    (No. 1481.)
    (Court of Civil Appeals of Texas. Texarkana.
    June 16, 1915.
    Rehearing Denied June 24, 1915.)
    1. Appeal Ann Eerob <@=1002 — Evidence <&wkey;570 — Opinion Evidence — Expert Testimony.
    The weight of expert testimony is for the jury, and their finding based on conflicting medical testimony will not be disturbed.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dec. Dig. <§= 1002; Evidence, Cent. Dig. § 2395; Dec. Dig. @=570.]
    2. Insitbance <@=3524 — Accident Insurance— “Total Disability” — “Prevent” — “Hinder.”
    Where an accident policy provided certain indemnities if injuries to the insured resulted in total disability, preventing him from performing all duties pertaining to his occupation, the injuries need not be such as to physically prevent the insured from performing any of the duties; it being enough if he is so injured that he cannot, as a prudent man, perform any such duties, and the word “prevent” being construed as synonymous with hinder.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1310; Dec. Dig. <@=524.
    For other definitions, see Words and Phrases, First Series, Hinder; also, First and Second Series, Total Disability; Prevent.]
    3. Insurance <&wkey;665 — Accident Insurance-Actions — Evidence.
    In an action on an accident policy, evidence held to warrant a finding that the insured was, from the time of injury till his death, totally disabled from performing Ms customary duties.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1555, 1707-1728; Dec. Dig. &wkey; 665.]
    4. Insurance &wkey;527 — Accident Policies — Construction.
    Under an accident policy providing a double indemnity in case insured should be • injured while riding in the conveyance of a common carrier, an automobile of a liveryman in which insured was injured must be deemed the vehicle of a common carrier, where it was in charge of the hirer’s driver, and the liveryman served any member of the public able to pay his fixed charges, as would any common carrier.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1312, 1313; Dec. Dig. &wkey;527.]
    Appeal ■ from. District Court, Grayson County; W. M. Peck, Judge.
    Action by James Roe Joiner against the Fidelity & Casualty Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    The suit was by appellee, the beneficiary named in an accident policy issued to his father, J. R. Joiner, by appellant.
    By its terms the policy insured said J. R. Joiner—
    “against bodily injury sustained during the term of one year from noon, standard time, of the day that this policy is dated, through accidental means (excluding suicide, sane or insane, or any attempt thereat, sane or insane) and resulting directly, independently and exclusively of all other causes, in (a) immediate, continuous and total disability that prevents the assured from performing any and every kind of duty pertaining to his_ occupation, (b) immediate (as respects tlie injury or as respects preceding total disability) and continuous partial disability that prevents the assured from performing fully work essential to the duties of his occupation, (c) death; as follows:
    “Article 1. If the assured suffers total disability the company will pay the assured so long as he lives and suffers said total disability twenty-five dollars a week.
    /‘Art. 2. If the assured suffers partial disability the company will pay the assured for the period of such partial disability not exceeding twenty-six weeks, a percentage of the weekly indemnity before specified, to be determined upon the extent of the disability, but not less than 25 per cent, nor greater than 90 per cent.
    “Art. 3. If the assured suffers total disability, and if, during the period of said total disability, the assured suffers death as the direct result of the bodily injury causing the said total disability ; or, if within ninety days from the date of the accident, irrespective of total disability, the assured suffers death; the company will pay the beneficiary five thousand dollars and for such part of the period between the date of the accident and the date of the death as the assured has not been paid a weekly indemnity an additional sum of twenty-five dollars a week.”
    “Art. 5. The amounts specified in the preceding articles shall be doubled if the bodily injury is sustained by the assured: * * * (2) While in or on a public conveyance (including the platform, steps or running board thereof) provided by a common carrier for passenger service.”
    In his petition appellee alleged that:
    “On or about the 4th day of June, 1913, while said policy was in full force and effect, the assured therein, to wit, J. R. Joiner, while riding in or on a public conveyance provided by a common carrier for passenger service, to wit, an automobile, sustained bodily injuries, from which said assured suffered immediate total disability, which total disability continued until the 9th day of December, 1913, upon which date said assured died as the direct result of said bodily injuries. Plaintiff says that said bodily injuries which caused said total disability and death of said assured were the direct result of, and were proximately caused by, the automobile in which said assured was riding, as aforesaid, being wrecked and overturned from accidental causes unknown to plaintiff, while said automobile was being operated for passenger service by a common carrier along a public highway and road and while said assured was riding in said automobile as a passenger; he having paid the customary fare charged therefor by the owner and operator thereof. Plaintiff says that by reason of the total disability and death of said J. R. Joiner, as aforesaid, the defendant has become indebted to plaintiff, under the provisions of said policy of insurance, in the sum of $11,342.70, together with interest thereon from the 9th day of December, 1913, until paid at the rate of 6 per cent, per annum; said total amount being apportioned as follows: Double indemnity for death, $10,000; double indemnity at the rate of $50 per week for the period of total disability, which plaintiff alleges to have been 27 weeks less one day, '$1,342.70. Plaintiff says that no weekly indemnity was paid to the insured or to any one else for him.”
    Appellee prayed for a recovery against appellant of the aggregate of the sums specified and interest thereon, and in addition thereto for a recovery of the penalty and attorney’s fees provided for by article 4746, Vernon’s Statutes.
    In its answer appellant denied that the assured “suffered immediate total disability, which total disability continued until December 9, 1913, upon which date he died, as the direct result of said bodily injury received while riding in or on a public conveyance provided by a common carrier for passenger service,” and denied that the total disability and death of the insured “was the direct result of and proximately caused by the wreck of an automobile, which automobile was being operated for passenger service by a common carrier,” as charged by appellee; and, after setting out provisions in the policy quoted above, alleged that it was not liable because “the injuries received by the plaintiff did not result in his death within 90 days from the date of such injuries,” and because said injuries “did not result in total disability as defined in the policy, as hereinbe-fore set out, and such total disability did not continue-from the date of said accident until the date of the death of the assured.”
    Appellant further alleged that the death of the assured “was not caused by bodily injuries sustained by him and resulting directly, independently, and exclusively of all other causes,”, and the injury to the assured was not sustained by him “while in or on a public conveyance (including the platform, steps, or running board thereof) provided by a common carrier of passengers for hire, and that it is not liable to the plaintiff herein for double indemnity under the terms of said policy.” *
    The insured traveled as a salesman for a firm of wholesale groceries in Sherman. Wednesday afternoon, June 4, 1913, accompanied by a boy as driver and one Wilson, also a traveling salesman, he left Whites-boro in an automobile, intending to go to Southmayd, Gage, and other nearby towns, to see customers there. While moving rapidly, a short distance out from Whitesboro, the automobile turned over, throwing the insured, Wilson, and the boy to the ground, injuring each of them. Wilson testified:
    “When I got up, Mr. Joiner had something over his feet; don’t know whether it was a part of the seat or something; don’t know what it was. He was trying to pull his feet, and I started to pull him up, and he said he was all right, to look after the boy: ‘Look after G.’ He called him G. So I went over and picked G. up. I thought he was dead. He was unconscious. That was the driver. And I leaned him up on the seat, and he was groaning a little, and I asked Mr. Joiner if he didn’t think I had better get a doctor, and he said yes, and I went up the road about a quarter of a mile and phoned for a doctor, and when I came back Mr. Joiner was up and the boy had come to, and a buggy came along about that time, and they were putting him in the buggy. Mr. Joiner was helping. Mr. Joiner was conscious. He was sitting up on the ground there when I went off to the house after the doctor, and the boy was still unconscious. After I came back from telephoning, I took this boy up to that house and took him in the house and put him on a bed and came back down to the ear. Brought some water down there and gave Mr. Joiner a drink of water, and we picked up our belongings and walked on up to the house. Mr. Joiner and I walked on up to the house. We got to the house just about tiie time the doctor did and went in there, and the doctor dressed the boy’s wounds first and then dressed Mr. Joiner’s. Then we got in a car and went back to Whitesboro. * * * When we got to Whitesboro, Mr. Joiner went up and went up to bed. * ' * * Mr. Joiner was skinned up all over; nose was skinned and lip was cut, lower lip was mashed, and he had a black eye; don’t remember which eye it was; one or the other was black; elbow was skinned; his knee was skinned about four to six inches long; and four of his toes were smashed. He had a bruise on his breast here, and a bruise on his head; on the loft side of his head, right along above his ear there.”
    On special issues submitted to them, the jury found the facts to be: (1) That on June 4, 1913, near Whitesboro, the insured, as the result of an accident while riding in an automobile belonging to one U. G. White, sustained bodily injuries which directly, independently, and exclusively of all other causes resulted in immediate, continuous, and total disability that ever thereafterward prevented him from performing any and every kind of duty pertaining to his occupation, and in his death on December 9, 1913. (2) That
    the automobile in which he was riding was a public conveyance provided for passenger service by said U. G. White, who prior to and at the time of the accident held himself out to the public as ready and willing to carry for hire all persons indifferently who might apply to him for passage.
    On the facts so found, the court rendered the judgment in appellee’s favor against appellant for $15,006.45, from which the appeal is prosecuted.
    Thomas & Rhea, of Dallas, for appellant. Head, Smith, Maxey & Head, of Sherman, for appellee.

       writ oí error pending in Supreme Court.

   WILLSON, C. J.

(after stating the facts as above).

There are 37 assignments, but as we view the record the disposition which should be made of the appeal depends /upon the answers to these questions: (1) Was there evidence to support the finding that the death of the assured was due “directly, independently, and exclusively of all other causes” to the injuries he sustained? (2) Was there evidence to support the finding that said injuries resulted in “immediate and total disability” that continuously thereafter-wards prevented the insured “from performing any and every kind of duty pertaining to his occupation?” (3) Was there evidence to support the finding that the automobile was a public conveyance provided by a common carrier for passenger service? If either of the two questions first stated should be answered in the negative, then the contention of appellant that it appeared as matter of law that it was not liable for the indemnity specified in the policy against death of'the assured by accident should be sustained. If both should be answered in the affirmative and the third in the negative, then the judgment is for an excessive amount. Only in the event each of the questions should be answered in the affirmative is the judgment altogether right.

During many years immediately preceding the time the accident occurred, and when it occurred, the assured enjoyed excellent health. As a result of injuries he then suffered, he was confined to his bed in Whitesboro during two or three days. He then returned to his home in Sherman, where he remained (in bed, the greater part of the time) until June 22d, when he made a trip to Whitesboro and back. In the afternoon of June 23d, he was stricken with paralysis of the right side of his body, and, as a consequence thereof, from that time until he died on December 9th was helpless. Physicians, testifying for appellee as experts, thought the injury the assured had suffered to the left side of his head so affected his brain as to cause the paralysis and his death, but conceded that it might be true, as other physicians, testifying for appellant, thought it was, that the paralysis and death of the assured was due to another or other causes. We do not agree with appellant in its contention that the testimony referred to showed that the first of the three questions stated above should be answered in the negative. Had the physicians all agreed that the death of the assured was due to the injury to his head, doubtless it would not be contended that the testimony then would not be sufficient to support the finding of the jury. That the experts, as is usual, disagreed, was not a reason why the jury should ignore the testimony of all of them. They had a right to conclude, as they did, that the opinions of those who testified for appellee were entitled to the greater weight.

We do not understand appellant to be in the attitude of insisting, with reference to the second question, that the injuries the assured suffered did not result in “immediate and continuous” disability. Its contention, as we understand it, is that his disability was not total, within the meaning of the language used in the policy. The contention is based on testimony referred to above and other testimony showing that the trip made by the assured to Whitesboro on June 22d was for the purpose of transacting business pertaining to his occupation, and that while in Whitesboro on that trip the assured solicited an order from one of his customers and received payment of a debt due from another. Appellant insists it therefore conclusively appeared that the assured “did perform duties pertaining to his occupation after said accident,” and concludes that it therefore further appeared as matter of law that he was not “totally disabled” within the meaning of the contract. We agree it conclusively appeared, as claimed, that the assured after he suffered the injuries performed duties pertaining to his occupation, but we do not agree that his doing so established as matter of law that he was not “totally disabled” within the meaning of those words as used in the policy. It not infrequently happens that one suffering from injuries to his person performs duties pertaining to his occupation which he is wholly unable, in the reasonable and proper sense of those words so used, to perform; and that, as a consequence, because he was unable to do same, he suffers death or an aggravation of Ms injuries. In a case in which such a result follows the performance of the duty, the performance thereof, instead of establishing that the assured was able to perform it, it seems to us, would establish the contrary. We think therefore that to construe the language in the policy as meaning what appellant contends it means would be unreasonable. “Total disability,” said the Supreme Court of Minnesota, in Lobdill v. Aid Ass’n, 69 Minn. 14, 71 N. W. 696, 38 L. R. A 537, 65 Am. St. Rep. 542

“does not mean absolute physical inability on the part of the insured to transact any kind of business pertaining to his occupation. It is sufficient if his injuries were of such a character that common care and prudence required him to desist from the transaction of any such business so long as it was reasonably necessary to effectuate a cure. This was a duty he owed to the insurer as well as to himself.”'

And see Continental Casualty Co. v. Wynne, 36 Okl. 325, 129 Pac. 16; Great Eastern Casualty Co. v. Robins, 111 Ark. 607, 164 S. W. 750; Mutual Benefit Ass’n v. Nancarrow, 18 Colo. App. 274, 71 Pac. 423; James v. U. S. Casualty Co., 113 Mo. App. 622, 88 S. W. 125; Hohn v. Interstate Casualty Co., 115 Mich. 79, 72 N. W. 1105; U. S. Casualty Co. v. Hanson, 20 Colo. App. 393, 79 Pac. 177; Turner v. Casualty Co., 112. Mich. 425, 70 N. W. 808, 38 L. R. A. 529, 67 Am. St. Rep. 428; Thayer v. Standard Life & Accident Ins. Co., 68 N. H. 577, 41 Atl. 182.

With reference to this phase of the case, Dr. Neathery, the assured’s physician, testified :

“I knew of his undertaking, or of his proposed undertaking, to go back on the road. He consulted me about it. I told him he had better not do it; didn’t think he was able; that he might go right along but might not; might not be best for him.”

The witness White, who saw the insured in Whitesboro on the occasion of his trip to that town June 23d testified with inference to his condition then:

“He was in mighty bad condition then. I would say he wasn’t able to be out at all, wasn’t able to work, from his looks. I had been associated with Mr. Joiner for years, and from what he had been, and what .he was then, he wasn’t able to be out in my judgment. Mr. Joiner was a stout, robust man before this accident. He was just the opposite on that Monday morning when I saw him. * * *. He looked bad and got around in bad shape; had a bad color and bad expression.”

The witness Mitchell testified that he met the assured as he left the train to stop at Whitesboro June 23d, and during the day saw him at McGehee’s office.

“He was sitting in a chair up there,” the witness said. “Seemed to be in a sort of stupor. I didn’t speak to him. Looked like he probably •might have been asleep. He walked slowly, and seemed like when he got to the hotel he was in an exhausted condition; seemed out of wind, short of breath.”

The witness Sloan, the customer of whom he solicited an order on the occasion of his trip to Whitesboro, heretofore referred to, testified:

“When Mr. Joiner came in (to witness’ store), he seemed to be almost exhausted; rather nervous. Seemed to be suffering from some cause. He didn’t seem or appear at all like himself, because he had always been a stout, robust man. That day he seemed to be so weak he was hardly able to transact business, as I thought. With reference to his mental activity, he seemed to be just like any man would in a weakened condition. He seemed to be in accord with his physical condition.”

The witness Burchett, who was the customer heretofore referred to as having paid the assured a debt on the occasion of his trip to Whitsboro June 23d, testified:

“Mr. White brought him (the assured) down to my place of business in an automobile. I suppose he ran the machine to within some 10 or 12 feet from the door, probably. Mr. Joiner got out of the automobile and came to the door, and ho caught hold of the door casing with one hand and used his cane with the other to get in the house. He had to step up a step somewhere between six and eight inches high. He did that apparently with a great deal of difficulty. * * * He stepped up to the counter, and he stood there, I suppose, something like a minute and just made the remark to me, says, ‘I have got to sit down,’ and he sat down in a chair. He stood there something like a minute. He was apparently thoroughly exhausted physically.”

Whether the insured was “totally disabled” or not, within the meaning of the policy, in view of the testimony referred to, was, we think, a question for the jury. Therefore we are of opinion the second of the three questions should be answered in the affirmative. It follows we are further of opinion the trial court did not err when he refused appellant’s requested charge instructing the jury to find in its favor.

In reaching the conclusion indicated, the fact that the words “total disability,” used in the policy, are defined therein as disability “that prevents the assured from performing any and every kind of duty pertaining to his occupation,” has not' been overlooked. But when it is remembered that the word ■“prevent” is synonymous with the word “hinder,” and that the latter might properly be substituted for the former where it is used in the quotation made from the policy, it is obvious that appellant has no cause to complain that we ignored the definition; for undoubtedly the jury had a right to find from the testimony that the disability the assured suffered as a result of the injuries “hindered” him in the performance of every kind of duty pertaining to his occupation.

The automobile in which the assured was riding at the time the accident occurred belonged to the witness U. G. White, who operated a hotel and livery business in Whitesboro. White testified that in his business as a liveryman he owned and used horses, hacks, buggies, and two automobiles, which he hired to any one who applied to him for same and was willing to pay according to a schedule of charges he had established. He used the automobiles in his business like he did the buggies, except that he never hired them out without a driver, but always himself furnished drivers for them. His testimony, we think, was sufficient to support the finding of the jury that the automobile in which the assured was riding was a “public conveyance provided for passenger service.” Primrose v. Casualty Co., 232 Pa. 210, 81 Atl. 212, 37 L. R. A. (N. S.) 618; Ripley v. Assurance Co., 16 Wall. 336, 21 L. Ed. 469. In the Primrose Case the Supreme Court of Pennsylvania said:

“The words ‘public conveyance, provided for passenger service, and propelled by gasoline,’ are to receive a reasonable meaning. All conveyances are either for public or private use. The automobile in the case at bar was not one for merely private use. It belonged to a company which, as already stated, was engaged in the business of hiring automobiles for general public use. The use of no one of its machines was limited to any particular person, but any one able to pay the price for the privilege of riding in it, while it was under the control of and being operated by one of the company’s employés, could do so.”

Was the testimony also sufficient to support the further finding that White in his business as a liveryman was a “common carrier?” If it was, then the judgment is not erroneous in any respect.

Appellant insists that the determination of the question “is absolutely controlled by the case of McGregor V. Gill, 114 Tenn. 521, 86 S. W. 318, 108 Am. St. Rep. 919,” decided by the Supreme Court of Tennessee. But wo think that case in its facts is not at all like this one. The plaintiff there sought a recovery against a liveryman for personal injury suffered by his (the plaintiff’s) wife, as the result, he claimed, of the negligence of the driver of a wagon furnished by the liveryman, in which the wife was riding. The case is like many others made the basis of a rule which has been stated and explained as follows:

“Ordinarily, livery stable keepers, engaged in the business of letting for hire teams and vehicles, either with or without drivers, are not carriers of passengers within the legal meaning of that term. They do not hold themselves out as undertaking for hire to carry indiscriminately any person who may apply. Those who hire their vehicles are not necessarily restricted to vehicles or drivers designated by the proprietor, but may in a measure protect themselves by selecting the particular horse or driver they wish to hire. The duties and obligations of carriers of passengers are therefore not applicable to mere livery stable keepers.” 1 Hutch, on Carriers, § 96.

When the testimony in the case before us is kept in mind, it is clear that the rule announced by Mr. Hutchinson and invoked by appellant should not control in the decision of the question. Here White, the liveryman, testified:

“In holding myself out to the public for business, I hold out to carry all, and do not make restrictions as to who i carry. I am in the livery business to favor the public. When any one comes along, I accommodate them if I can. * * * I do not make restrictions as to who I will carry. I have just one price in the livery business, and charge all the same, * * * I would carry anybody that wanted to go and pay the price. * * * I hauled anybody that wanted to go and had the money and would pay the price.”

When it is remembered that a “common carrier,” within the meaning of the law, is one who “undertakes for hire to carry all persons indifferently who may apply for passage, so long as there is room and there is no legal excuse for refusing” (1 Bouvier, 561), and that “the destination of, or distance to be traveled by, the passenger is immaterial in determining whether the carrier is or is not a common carrier” (5 A. & E, Ene. p. 481, and authorities there cited), it is not easy to understand why it should be held that the testimony referred to was not sufficient to support the finding of the jury that White was a “common, carrier” of passengers. According to his testimony, White-undertook for hire to carry all persons indifferently who applied to him for carriage. If he did that, he was, within the meaning of the law, a common carrier of passengers, and the jury had a right to find he was.

The assignments not disposed of by what has been said are overruled, and the judgment is affirmed.
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