author: PLEASANTS, C. J.

text:
    SOUTHWESTERN SURETY INS. CO. v. OWENS et al.
    (No. 7442.)
    (Court of Civil Appeals of Texas. Galveston.
    Oct. 25, 1917.
    Rehearing Denied Nov. 22, 1917.)
    1. Master and Servant <§=>405(4) — Workmen’s Compensation — Cause of Injury— Evidence.
    In a suit under the Workmen’s Compensa-» tion Act (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5246h et seq.), evidence held to show that the lifting of a can of paint caused the bursting of a blood vessel and the death of an employé.
    2. Master and Servant <§=>372 — Workmen’s Compensation Act — “Accidental Injury.”
    Where lifting of a can of paint caused a blood vessel in a servant’s lungs to burst, there was an “accidental injury” within the meaning of the Workmen’s Compensation Act, and it is immaterial that it had burst before, but had heeled over, and might burst again.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Accident.]
    3. Evidence <§=>126(1) — Statements of Cause of Injury — Personal Injury.
    In a suit under the Workmen’s Compensation Act, where witness came upon deceased, who had blood on his face, was spitting blood, and in great pain, and a large can of paint was at his feet, a statement of the deceased that he had “busted something lifting that can of paint” was admissible as. part of the res gestae.
    4. Trial <§=>89 — Striking out Evidence — Refreshing Memory — Prior Testimony.
    The court did not err in refusing to strike certain testimony where witness had refreshed his memory from an affidavit he had made at the time, although having no independent recollection of the matter, but knew that the statement in the affidavit was true, and although he had testified differently on a former trial; the contradictory statements being before the jury.
    5. Master and Servant <§=>408 — Workmen’s Compensation Aci^-Accidental Injury-Question of Law.
    Whether a hemorrhage and death from the bursting of a blood vessel from lifting a can of paint was an “accidental injury” within the meaning of the Workmen’s Compensation Act is a question of law for the court.
    Appeal from District Court, Harris County; J. D. Harvey, Judge.
    Proceedings under the Workmen’s Compensation Act by Nettie Owens and minor children to obtain compensation for the death of Will, L. Owens, husband and father, opposed 'by the Randolph Paint Company, the employer, and the Southwestern Surety Insurance Company. Compensation was awarded in the sum of $2,957.88, and the Insurance Company appeals.
    Affirmed.
    Andrews, Streetman, Bums & Logue, of Houston, for appellant. Cole & Cole and John R. Burkett, all of Houston, for appel-lees.
   PLEASANTS, C. J.

This suit was brought by appellees, the widow and minor children of 'Will L. Owens, deceased, against the appellant, to recover compensation under the Texas Workmen’s Compensation Act for loss sustained by them in the death of said Will L. Owens from injuries received by him in the course of his employment by the Randolph Paint Company, a subscriber within the purview of said Compensation Act.

The allegations of the petition setting out the circumstances and manner of the injury to said Owens, which resulted in his death, are as follows:

“That at the time the said Will L. Owens sustained said injury in the course of his employment he was engaged in carrying paint from the Randolph Paint Company’s elevator on the second or third story of the building of said Randolph Paint Company for a distance of some 20 to 30 feet, and then lifting said paint and stacking it; that the paint was in cans some 100 or more pounds in weight, and was very heavy and hard to carry and to lift; that the work the said Will L. Owens was doing on said date was work which was' usually and customarily discharged by two employés, for the reason that the paint was so heavy that one man was not usually required to pei-form the same alone, but that on the occasion of the injury of the said Will L. Owens, resulting in his death, the said Randolph Paint Company was requiring the said Will L. Owens to work in a hurry, for the reason that a car of paint had been unloaded on the sidewalk, which it was necessary to take off of the sidewalk so as to clear the same before closing the Randolph Paint Company’s place of business; that the Randolph Paint Company’s other men who would have been required to assist the said Will L. Owens were away at the time, and the said Will L. Owens was thereupon required to do the work of two men, and that while the said Will L. Owens was so engaged in lifting said paint aforesaid, to a distance of some 5 or 5½ feet in height, so as to place it on top of a stack of paint which had already been started, and while the said Will L. Owens was under great strain, in carrying said paint for a distance of some 30 feet and lifting the same thereupon to a distance of 5½ feet, he overexerted and strained himself in such a manner as to cause a blood vessel to burst in and upon his lung, resulting in a hemorrhage, and by reason thereof the said Will L. Owens was on and after said date, to wit, .October 23, 1914, and for a period of approximately six weeks immediately subsequent thereto, confined to his bed, and that by reason of said injury and of said hemorrhage the said Will L. Owens was never thereafter able to arise from his bed, and he thereafter died on, to wit, December 10, 1914, as the immediate, direct, and proximate result of the injury sustained by him as aforesaid.
“Plaintiffs allege that the bursting of said blood vessel as result of said overexertion or strain, as aforesaid, was an entirely unlooked for mishap, or an untoward event, which was not expected or designed, and that by reason thereof the said Will L. Owens sustained an accident, or personal injury, in the course of his employment, for which the defendant is liable as hereinafter stated; said injury occurred at the Randolph Paint Company’s place of business in the city of Houston, Harris county, Tex.; that at all dates and times prior to said injury the said Will L. Owens was a strong, healthy, and able-bodied man, with the exception that in April, 1914, preceding the injury hereinabove described, he had sustained a strain in lifting a piano, from which he had entirely recovered at the time of the injury resulting in his death, and that the direct, immediate, and proximate cause of the death of the said Will L. Owens was the injury sustained by him as set forth herein while in the course of his employment with the Randolph Paint Company. Plaintiffs show the court that, if the said Will L. Owens had not become entirely cured from the effect of said strain in lifting the piano, or if it be found that the said Will U. Owens’ blood vessels were in an impaired condition to any extent by reason of lifting said piano, or otherwise, then in any event plaintiffs show the court that the strain which the said Will L. Owens received in lifting said paint as aforesaid was a direct proximate contributing cause to the bursting of said blood vessel, and such a proximate contributing cause to the bursting thereof that without such strain as aforesaid the injury would not have occurred.”

Defendant Southwestern Surety Insurance Company by its amended original answer, upon which the cause was tried, demurred to the petition of plaintiffs, and denied the aver-ments therein contained, but specially stating that:

“If there is any liability at all, it admits that such liability is legally and correctly measured by the matoed compensation payments ascertained upon the basis specified in the Compensation Act plus the present value of the unma-tured payments discounted at 6 per cent, true discount.”

The trial in the court below with a jury resulted in a verdict and judgment in favor of plaintiffs for the sum of $2,957.88.

The first assignment of error complains of the refusal of the trial court to instruct the jury, as requested by defendant, to return a verdict in its favor. Under this assignment appellant contends that the undisputed evidence shows that Will Owens did not meet his death under such circumstances as to give rise to any liability under the Texas Workmen’s Compensation Act upon which the alleged cause of action rests. The grounds upon which this contention is based are that the evidence wholly fails to show that Will Owens suffered an accidental injury in the course of his employment within the meaning and scope of said act, and died as a result of such injury; there being nothing unusual, unexpected, or fortuitous in the circumstances in which the hemorrhage occurred which resulted in the death of said Owens.

The evidence shows that Will Owens was an employé of the Randolph Paint Company, a “subscriber” under the provisions of the act above mentioned, and that the hemorrhage which caused his death occurred while he was engaged in performing the duties of his employment. Appellant was the insurer of the employés of the Randolph Paint Company under the provisions of said act, and is liable for the compensation to appellees provided for in said act if the hemorrhage which resulted in the death of said Owens was caused by an accidental injury. The circumstances in which the hemorrhage occurred are thus detailed by Mr. Hinton, the manager of Randolph Paint Company:

“We bad an employé by the name of Will L. Owens for several years. He worked for us in the capacity of shipping and receiving clerk. He came to work for the company shortly after I went with it. He was working for the company on October 28, 1914. I know something in regard to Owens receiving an injury while in our employ down there. The injury occurred the latter part of October. I remember the last day that Will worked for us down there. He was doing several things that day. In the evening he was stacking some paint. That was part of his duties. I do not know' what time, on the last day he worked there, October 23, 1914, Will began stacking this paint. He was stacking it on the second floor. In the course of my duties I did go up there off and on during the afternoon. I recall, off and on, during that afternoon, seeing Will stacking paint up there at different times. I think I was away during the afternoon, during the greater part of the afternoon, but when I was up there, the times that I was there, I remember seeing Will at work there, stacking the paint. The paint that Will was stacking was received by him from the turn of the elevator. It would be brought from the ground floor to the turn of the elevator. We had received a consignment or shipment of paint that day that had to be stacked upstairs. We were getting this paint from the sidewalk before we took it upstairs. The reason for the rush or hurry that afternoon was simply that we closed at 6 o’clock, and it was the purpose to get this paint out of the way before closing time. I saw Will Owens that afternoon when he was unable to stack paint. I would say that it was right at six o’clock, maybe l5 minutes of 6 o’clock. I went upstairs at that time. I saw Will Owens when I got there. Will was leaning against a pillar or banisters when I got there. There was just a short turn in the stairs, and a rail about two feet long, and there is a pillar at the turn, at the end of it. I saw symptoms of Will’s being in pain. It was very evident, very pronounced. He had been bleeding from the mouth, and he was gasping somewhat for breath. He was spitting blood, and there was blood on his face, and he was gasping for breath. When I got there where he was standing there was a five-gallon kit of outside white paint near where he was standing. The weight of that kit is approximately 100 pounds. He was stacking this paint five high. When I got there there were four actually up on the stack in front of Will, four already up. I would say that these four were 72 or 75 inches high. The fifth one had to go up on top of that. I said that four of these boxes were already up when I got there. There was another box to take the place on top of the four when I got there. It was right at Will’s feet. This kit or box of paint at Will’s feet was not at the place where he would receive it. It would be approximately 12 or 15 feet from the place where he would receive it, right at the turn of the elevator. Will would carry the paint from where he received it at the turn of the elevator to this place to get it up on top of the stack of paint. He would carry it in his hands if he wanted to, but there was a little truck there, but he never used it. * * * When I got there, these four kits of paint were stacked there, and this kit was the same absolutely as the other four, outside white paint, weighing approximately 100 pounds. When I got there, I saw that Will had blood coming out of his mouth, and was gasping for breath, and had blood over his face. Judging from these symptoms, regardless of anything Will said, I know that he was in pain. I would not be able to state definitely how long before this I had seen Will, but I do know he was lifting paint there all that afternoon. Will said something to me there. He said he ‘had done busted something lifting that can of paint.’ After he said that I helped Owens to a seat, and he seemed to be in a pretty bad shape. He did not do any more work that day. As soon as he was able he was taken home. * ⅜ * I do not think I ever saw him at the store after that. I saw him at his home just before he died. He died within a month or six weeks after that. Prior to this occurrence Will L. Owens suffered a little injury in the spring Of the year, lifting a piano at the church. He was laid off only a very short time then. He came back to work after that. There was not any difference in the way he worked after that and before. With the exception of that time he laid off in April, he had never lost any time on account of being sick.”

In stacking boxes of paint of the size of those stacked by Will Owens on the occasion in question in stacks of four or five boxes two men were generally employed, but on this occasion Owens had no one to assist him in the work.

The evidence shows that in April, 1914, Will Owens was injured while lifting a piano, and as a result of such injury suffered for a week or ten days from hemorrhage from the lungs or chest. He recovered from the effect of that injury in a short time, went back to his work, and performed the duties of his employment as he had theretofore done, without giving any indication of suffering from the effects of his previous injury. .

Dr. Neuhaus, a witness for plaintiff, after stating his expert opinion, from the statements made to him of the manner in which Owens was injured when lifting the piano in April, 1914, that the hemorrhage which followed such injury was due to the rupture of a blood vessel or pulmonary vein in the lungs, further testified:

“That vein will heal up, a little scar tissue which is ordinarily in the lung, not as tough as it would be on the outside of the body. It is kind of ai spider web tissue that does not stretch that heals over the vein, and the blood would be held in. Supposing that the patient in question would go to October 23, 1914, and on that day he is lifting heavy cases of paint, weighing 90 to 95 pounds, for a distance of 4½ to 5½ feet from the floor, and coincident with this lifting blood gushed from him again, without any intervening symptoms, like counsel has detailed to me, the most probable diagnosis as to the cause of this return of this hemorrhage would be this little blood vessel burst again which burst originally; that the scarification caused this blood vessel to be weak, and it burst again. Assuming that this patient gradually declines until December 10th, this injury being on October 23d, and during that period he is troubled with fever, say-the same symptoms followed the October 23d injury as in April, and he gradually declined in strength and weight and died on December 10th, I would say that an infection of the lacerated place in the lungs where the bleeding took place could cause that. * * *
“Assuming that a man has none of the symptoms of consumption that T have detailed, and yet assuming that there might be a possibility that they were latent in the patient’s system, as to whether lifting, resulting in a trauma, in a bursting of a pulmonary vein, could light up and make an open field for the-‘bugs’ as we call it, and accelerate the disease, I will say that, where such cases have been followed up and an examination made, they generally found that the tuberculosis was not caused by such heavy lifting. They find it to be surgical pneumonia in nine cases out of ten. Surgical pneumonia is caused by strain or exertion or crushing. The 'germs enter or were already there. Many persons have germs in their mouth or nasal cavity, and then when the soil is rendered fertile the germs develop. Surgical pneumonia is never developed by germs alone; it takes a trauma to bring it into life.”

Dr. J. G. Boyd, a witness for plaintiffs, testified as an expert to the same effect as Dr. Neuhaus.

Our conclusions of fact from the evidence are that Will 'Owens ruptured a blood vessel in his lungs by lifting one of the boxes of paint he was stacking on October 23, 1914, and that he died from infection or traumatic pneumonia which resulted from such rupture.

We think an injury of this character received in the manner and circumstances in which Will Owens was injured must be regarded as “an accidental injury suffered in the course of his employment.”

The first section of the Texas Workmen’s Compensation Act, which is now article 5246b of Vernon’s Say les’ Civil Statutes 1914, refers to and deals with “actions to recover damages for personal injuries sustained by an employé in the course of his employment or from death resulting from personal injuries so sustained.” The only portion of the act which designates the .injuries to which the act applies as accidental is the emergency clause, which declares the aim of the act to be the protection by adequate law of the rights of employes injured in “industrial accidents” and the beneficiaries of such employés as may be killed in such’ accidents. It is, we think, clear that the injuries referred to in the act are designated accidents only as contradistinguished from intentional injuries (Middleton v. Texas P. & L. Co. [Sup.] 185 S. W. 556), and it cannot be contended upon any sound theory that, if Will Owens in lifting a heavy box of paint ruptured a blood vessel, such injury was not an accident as that term is used in the act before mentioned. The , English Workmen’s Compensation Act provides:

“If in any employment personal injury by accident arising out of and in the course of the employment is caused to a workman, his employer shall, subject as hereinafter mentioned, be liable to pay compensation in accordance with the first schedule to this act.”

In the case of Clover, Clayton & Co. v. Hughes, App. Cas. 242, in which suit was brought under said act to recover compensation for the death of a workman who-, while “suffering from an aneurism in so advanced a state of disease that it might have burst at any time, was tightening a nut with a spanner, when the strain, quite ordinary in this quite ordinary work, ruptured the aneurism, and he died.” It was held that plaintiff was entitled to compensation. In the course of the opinion Lord Lorebum used this language:

.“The first question here is whether or not the learned judge was entitled to regard the rupture as an ‘accident’ within the meaning of this act. In my opinion, he was so entitled. Certainly it was an ‘untoward event.’ It' was not designed. It was unexpected in what seems to me the relevant sense, namely, that a sensible man, who knew the nature of the work, would not have expected it. I cannot agree with the argument presented to your Lordships that you are to ask whether a doctor acquainted with the man’s condition would have expected it. Were that the right view, then it would not be an accident if a man very liable to fainting fits fell in a faint from a ladder and liurt himself. No donbt, the ordinary accident is associated with something external; the bursting of a boiler, or an explosion in a mine, for example. But it may be merely from the man’s own miscalculation, such as tripping and falling. Or it may be due both to internal and external •conditions, as if a seaman were to faint in the rigging and tumble into the sea. I think it may also be something going wrong within the human frame itself, such as the straining of a muscle or the breaking of a blood vessel. If that occurred when he was lifting a weight, it would be properly clescribed as an accident. So I think rupturing an aneurism when tightening a nut with a spanner may be regarded as an accident. It cannot be disputed that the fatal injury was in this ease due to this accident,-the rupture of the aneurism under the strain.”

Further in the opinion the same judge uses the following language:

“I do not think'we should attach any importance to the fact that there was no strain or exertion out of the ordinary. It is found by the county court judge that the strain in fact caused the rupture, meaning, no doubt, that if it had not been for the strain the rupture would not have occurred when it did. If the degree of exertion beyond what is usual had to be considered in these cases, there must be some standard of exertion, varying in every trade. Nor do I think we should attach any importance to the fact that this man’s health was as described. If the state of his health had to be considered, there must be some standard of health, varying, I suppose, with men of different ages. An accident arises out of the employment when the required exertion producing the accident is too great for the man undertaking the work, whatever the degree of exertion or the condition of health.”

It seems to us that the reasoning in this opinion is unanswerable, and applies with equal force to our statute as to the statute under construction in the case cited. Statutes similar to ours have been construed by the courts of a number of our states, and the effect of these decisions upon the point we are considering is thus stated in Corpus Ju-ris under title Workmen’s Compensation Acts, p. 64, § 54:

“The word ‘accident,’ as used in a compensation act, requiring the injury compensated for to be ‘by accident,’ is held to be employed in its ordinary sense as meaning an unlooked-for and untoward event which is not expected or designed ; and' the term ‘accidental’ means something unusual, unexpected, and undesigned.”

Some of the cases cited in support of this text are Southwestern Surety Ins. Co. v. Pillsbury, 172 Cal. 768, 158 Pac. 762; In re Madden, 222 Mass. 487, 111 N. E. 379, L. R. A. 1916D, 1000; Fisher’s Case, 220 Mass. 581, 108 N. E. 361; Voorhees v. Smith, Schoonmaker Co., 86 N. J. Law, 500, 92 Atl. 280; Poccardi v. Public Service Com., 75 W. Va. 542, 84 S. E. 242, L. R. A. 1916A, 299.

Appellant’s first assignment of error cannot be sustained.

The second assignment predicates error upon the ruling of the court admitting In evidence, over defendant’s objection, the testimony of the witness Hinton that Will Owens stated to him that he “had busted something lifting that can of paint.” The objection made to this testimony was that it was hearsay, and not res gestse. The trial court did not err in -overruling the objection and admitting the testimony. The evidence, which we have before set out, excluding the statement of the deceased to Hinton, shows that the hemorrhage occurred while Will Owens was engaged in lifting heavy boxes of paint, that he had previously ruptured a blood vessel in his lungs which had healed, but in the opinion of medical experts who testified in the case the blood vessel was left in such condition from the former injury as to render it more liable to break from a strain of any kind, and the lifting of the paint was the probable cause of the second rupture and hemorrhage. The statement was made at the place the accident occurred, and, it is a fair inference from all the circumstances shown by the evidence, within a very few minutes after the occurrence. We think the statement was admissible in evidence as a part of the res gestse. City of Galveston v. Barbour et al., 62 Tex. 172, 50 Am. Rep. 519; Railway Co. v. Anderson, 82 Tex. 516, 17 S. W. 1039, 27 Am. St. Rep. 902; Cromeenes v. Railway Co., 37 Utah, 475, 109 Pac. 10, Ann. Cas. 1912C, 307; Railway Co. v. Williams, 50 Tex. Civ. App. 134, 109 S. W. 1126; Travelers’ Protective Ass’n v. West, 102 Fed. 226, 42 C. C. A. 284.

Appellant’s third assignment of error is as follows:

“The trial court erred, to the prejudice of defendant, in overruling defendant’s motion to strike out the testimony of the witness Harry Hinton, in substance to the effect that Will Owens stated to him that he ‘busted something’ lifting a case of paint, the ground of said motion being that in view of the cross-examination of said Hinton it appeared that the _ witness, ■on a former trial of this cause, had testified that Owens did not tell him how he ‘busted something,’ or caused a hemorrhage, and that the witness’ testimony to the opposite effect upon this trial appears to be only the result of the witness’ inspection of an ex parte affidavit mentioned by him, which affidavit said witness was giving controlling weight, .instead of depending in any sense upon Ms recollection of events as they occurred, the essential effect of Hinton’s testimony in this regard being to put the affidavit itself in evidence, all of which more fully appears from defendant’s bill of exception No. 4.”

On a former trial of this case the witness had 'testified as stated in the assignment. In answering the question as to why he had changed his testimony on the present trial by adding to the statement of Will Owens the words “lifting that can of paint,” he said, in substance, that since the former-trial he had seen an affidavit which he made shortly after the occurrence in which he swore that the statement of the deceased was that he “had done busted something lifting that can of paint,” and that, while he has now no independent recollection of the exact words used by the deceased, he knows that the statement made in his affidavit when the matter was fresh in his mind was true, and now swears that the deceased made the statement as set out in the affidavit.

The court did not err in refusing to strike out the testimony. The contradictory statements of the witness were before the jury. The affidavit does not appear to have been offered in evidence, hut no question is made as to the statement contained therein, and no objection made to the introduction of the evidence on the ground that the affidavit was the best evidence of the statements contained therein.

In Starkie on Evidence, § 176, the author says:

“The law goes further, and in some instances permits a witness to give evidence as to a fact although he has no present recollection of the fact itself. This happens, in the first place, where the witness, having no longer any recollection of the fact itself, is yet enabled to state that at some former time, and whilst he had a perfect recollection of a fact, he committed it to writing. If the witness be correct in that which he-positively states from a present recollection, viz. that at a prior time he had a perfect recollection, and, having that recollection, truly statéd it in the document produced, the writing, though its contents are thus but me-diately proved, must be true.”

Mr. Wigmore, in his work on Evidence (volume 6, § 734 et seq.), in discussing this rule of evidence, says:

“The propriety of the rule may be inferred from its necessity. And the occurrences of every day furnish abundant proof that the ordinary transactions of life could not be carried on upon any other principle. * * * It cannot be doubted that the use of a past recollection (under the conditions to be examined later! now occupies a firm and unassailable place in our practice and doctrine.”

The principle upon which the rule is based is recognized and applied by our Supreme Court in the case of Davie v. Terrill, 63 Tex. 105.

The next and last assignment of error presented in appellant’s brief complains of the failure of the trial court to submit to the jury the question of whether the hemorrhage and resulting death of Will Owens was proximatély caused by an “accidental injury” within the meaning and scope of the Workmen’s Compensation Act. This is a question of law, and not one of fact, and its submission to the jury would not have been proper. ¡

We think the case was properly tried in the court below, and the judgment should be affirmed, and it has been so ordered.

¡Affirmed.
      <@=>For other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: LANE, J.

license: Public Domain

text:
    ANDREWS v. RICE et al.
    (No. 7318.)
    (Court of Civil Appeals of Texas. Galveston.
    Oct. 25, 1917.
    Rehearing Denied Nov. 22, 1917.)
    1. Removal of Causes <®=»86(1) — Right of Removal. -
    The state courts are not bound to surrender jurisdiction of a cause on petition for removal, unless the petition shows on its face the right of petitioner to the transfer.
    2. Removal of Causes <®=»77 — Right of Removal.
    The receiver of .a railroad company, on being sued, filed an answer praying that Wells Fargo & Co. Express be made a party. Service of citation was had on the agent of Wells Fargo <& Co., and it .appeared for the sole purpose of presenting a petition for removal of the cause to the federal court, which petition alleged that the name “Wells Fargo & Co. Express” was a misnomer. The court denied the petition for removal and sustained the plea in abatement of Wells Fargo & Co. on the theory that it had never been made a party. Thereafter, only a few days prior to the trial, the receiver filed a petition praying that Wells Fargo & Co. be made a party. Held that, as the right of removal depends on the case disclosed by the pleadings when the petition therefor is filed, and not on the allegations of a petition thereafter filed, or on subsequent proceedings, the trial court had jurisdiction to deny the petition for removal by the Wells Fargo & Co.; it not having been made a defendant when the petition was filed.
    3. Removal of Causes <@=»77 — Petition — Gkanting.
    When the answer of' the defendant seeking to implead another does not set up a cause of action against a third person against whom plaintiff has no cause of action and who was not an original party, removal of the cause to the federal court on petition of such third party may be denied.
    4. Indemnity <§=>13(1) — Carriage of Passengers — Actions.
    Where a. passenger, who had purchased a ticket and was waiting for defendant’s train to arrive at the station so that he could board the same, was fatally injured by a truck of an express company, which, having been left too near the tracks, was struck by the approaching train, defendant, the receiver of the railroad company, though held liable for the passenger’s death, has no right of action over against the express company whose agent left the truck too close to the tracks; the express company being under no duty to the passenger to keep the station platform safe.
    5. Parties <®=>51(4) — Joinder of Defendants —Denial of Petition.
    In an action against the receiver of a railroad company for the death of a passenger injured by an express company’s truck, which, being left close to the tracks, was struck by an approaching train, the receiver, having no right of action against the express company, cannot implead it as a defendant.
    6. Parties <S=551(2) — Joinder of Defendants —Denial of Petition.
    Where the party sought to be impleaded by defendant was in no sense a necessary party, the denial of defendant’s petition to implead such party, filed shortly before trial and more than a year after the filing of plaintiff’s petition, was not an abuse of the trial court’s discretion in such matter.
    7. Trial <®=o63(2) — Order of Proof — Discretion of Court.
    In an action for the death of a passenger injured when a truck standing on the station platform was struck by an incoming train, it was not an abuse of the court’s discretion to permit one who had been fireman on the train to testify, after defendant had offered its evidence, that he heard a noise and looked down and saw the truck shoot out as though it had been struck by the train.
    8. Trial <®=>260(1) — Instructions—Refusal.
    Refusal of requests covered by the charge given is not error.
    9. Receivers <®=>187 — Actions—Execution.
    In an action against the receiver of a railroad company, the direction of the issuance of execution for the collection of a judgment in favor of plaintiffs was error; plaintiffs being entitled to present their claim evidenced by the judgment to the court in which the receivership proceeding is pending.
    Appeal from District Court, Brazoria County; Sam’l J. Styles, Judge.
    Action by Mrs. Minnie H. Rice and others against Frank Andrews, receiver of the St. Louis, Brownsville & Mexico Railway Company. From a judgment for plaintiffs, defendant appeals.
    Reformed and affirmed.
    Gaines & Corbett, of Bay City, Claude Pol-land, of Houston, and E. H. Crenshaw, Jr., of Kingsville, for appellant. A. E. Master-son and A. R. Rucks, both of Angleton, for appellees.
   LANE, J.

This suit was brought by Mrs. Minnie H. Rice, widow of F. S. Rice, deceased, for herself and as next friend for their minor children, Paul Rice and Winnifred Rice, joined by Effie May Rice, F. E. Rice, Hester Rice, and Abegail Rice, the adult children of F. S. Rice, deceased, and O. A. Rice, the father of F. S. Rice, deceased, against Frank Andrews, receiver of the St. Louis, Brownsville & Mexico Railway Company, to recover damages in the sum of $30,000 for the death of said F. S. Rice, alleged to have been caused by the negligence of said receiver, his agents and servants.

Plaintiffs allege in substance that on the 30th day of November, 1913, F. S. Rice, husband, father, and son of the plaintiffs, respectively, was at the depot of said railway company to take passage on- one of its trains; that he had purchaséd a ticket from the agent of said receiver as such passenger; that, when the train upon which he expected to take passage was approaching said depot, he went put upon the depot platform for the purpose of boarding said train, and that while he was standing on the platform the train came by and struck a certain truck used by said receiver for loading baggage, freight, and express, which had been carelessly and negligently left on said platform near the railroad track by the servants, agents, and employés of said receiver in charge of the depot and depot grounds; that the impact of said train coming in contact with said truck knocked the same against and upon F. S. Rice, knocking him down and injuring him, from -the effect of which he died on the 2d day of December, 1913. Plaintiffs’ petition was filed on the 25th day of January, 1915.

On the 24th day of February, 1915, defendant Frank Andrews, receiver, answered admitting that F. S. Rice purchased a ticket from his agent for the purpose of becoming a passenger on one of the trains of said railway company, and that while on the depot platform he was struck by the truck as alleged by plaintiffs, but denying that his agents, servants, or employés, as such, were careless or negligent in the use of said truck. He denies that F. S. Rice was fatally injured as alleged by plaintiffs. He also pleads contributory negligence on the part of F. S. Rice. He further says that the truck which struck F. S. Rice was the property of the Wells Fargo & Co. Express, which its local agent, N. M. Havens, used in its business at the town of Sweeny, and:

“That if the said F. S. Rice was struck by the truck as alleged by the plaintiffs, * * ⅜ and any .injury was received by reason thereof, then that the liability, if any, for such injury, would rest upon the Wells Fargo & Co. Express, and not upon this defendant. This defendant further represents that by reason of the contract entered into by and between the St. Louis, Brownsville & Mexico Railway Company and the Wells Fargo & Co. Express, that if there is any liability on account of the alleged injuries to F. S. Rice, resulting in his death, that such liability rests upon the said Wells Fargo & Co. Express, as shown by the following paragraph of said contract: ‘The railway company hereby grants to the express company the right to employ its agents and servants, as the agents of the express company, provided the latter holds itself responsible for all acts of theirs connected with and relating to its own business; and the express company assumes all risk of damage to its property, and to property of others in its custody whilst in the cars or depots of the railway company, and shall save the said railway company harmless against any and all claims for damages to such property. The express company does further assume all risk and damage to its agents and employés while engaged in its business on any of the lines of the railway company.’ That by reason of the fact that the truck which is alleged to have caused the injury to the said F. S. Rice, resulting in his death, was owned, used, and controlled by the said express company, if there was any negligence in the handling, using, Or placing of said truck, so that the same came in contact with the train operated by this defendant, as receiver, and such negligence on the part of the Wells Fargo & Co. Express, if any, caused the injuries complained of, then, by reason of the contract hereinbefore set forth, and by reason of the facts alleged, the said Wells Fargo & Co. Express, and not this defendant, would be liable therefor. Wherefore, premises considered, this defendant prays that the said Wells Fargo & Co. Express be made a party defendant herein, and required to appear and answer herein, and to defend this cause, and that this defendant be dismissed therefrom with his costs, and, in the alternative, should the court hold that this defendant is liable for the alleged injuries to the said F. S. Rice, and judgment is rendered against this defendant therefor, then this defendant prays for judgment over against the said Wells Fargo & Co. Express, for the amount of the judgment therein rendered against this defendant, and all costs, and for all such other and further relief, both general and special', at law and in equity, to which he may of right be entitled.”

On the 25th day of February, 1915, the Wells Fargo & Co. Express was made a party to the suit upon the application of said receiver, and citation was served upon N. M. Havens, who was the joint agent of Receiver Frank Andrews and the Wells Fargo & Co. (not the Wells Fargo & Co, Express) at Swee-ny, where the accident in question occurred. ■The case was continued and set for trial at the next term of the court, on the 20th day of September, 1915. On the 7th day of September, 1915, Wiells Fargo & Co. (not the company made party by order of the court) presented ‘ its petition to have the ease transferred to the District Court of the United States for the Southern District of Texas, and accompanied the same with bond as required by law. On the, 14th day of September, 1915, plaintiffs filed their protest to the removal of the case; said protest reading as follows:

“Now come the plaintiffs in the above numbered and entitled cause and move the court that the petition of Wells Fargo & Co. praying that this cause be transferred to the honorable District Court of the United States for the Southern District of Texas at Galveston, Tex., be denied, and in this behalf show to the court: That Wells Fargo & Co. is not a party to this suit, and therefore cannot legally ask that said cause be removed to the District Court of the United States for the Southern District of Texas, at Galveston, Tex. Wherefore, plaintiffs pray that the petition of Wells Fargo & Go., praying for removal of said cause be denied.”

Oil the same day the Wells Fargo & Co. filed the following plea, to wit:

“And now comes Wells Fargo & Co., defendant in the above suit in the cross-action of the defendant Frank Andrews, as receiver of St. Louis, Brownsville & Mexico Railway, and files this supplemental petition to remove said cause to the District Court of the United States for the Southern District of Texas, at Galveston, and also as an answer to the motion this day filed by plaintiffs, and says that the correct name of this defendant is Wells Fargo & Co.; that this defendant Wells Fargo & Co., a corporation, is the real and true defendant in said cross-action of said defendant Frank Andrews, receiver, etc., and is the defendant in fact served with citation on said cross-action of said Frank Andrews, receiver, etc.; and that the name ‘Wells Fargo & Co. Express,’ given to this defendant in said cross-action of said Frank Andrews, receiver, etc., is a misnomer of this defendant.”

On the same day the court overruled the application for removal, and upon the request of Wells Fargo & Co. filed his reasons for denying the application for removal, as follows:

“Said petition for removal was refused by the court for the reason that upon a hearing of said petition it appears to the court that said Wells Fargo & Co., is not a party to this suit, that the record does not prove that Wells Fargo & Co. is a party to this suit, and that there is no proper pleadings in this case filed within the time and in the manner required by law pleading that Wells Fargo & Co., and Wells Fargo & Co. Express are one and the same corporation, and no proof was offered on the hearing of said petion that Wells Fargo & Co. and Wells Fargo & Co. Express are one and the same corporation, or that Wells Fargo & Co. has been im-pleaded, or had been served, or was a party to this cause; and, for the further reason, that it appears to the court that no party to this cause has filed a petition and bond praying for the removal of this cause as is required by law.”

On the 20th day of September, 1915, the court, upon the application of Wells Fargo <& Co., quashed the citation served on its agent and dismissed said company from the suit upon the theory that it had never been made a party to the suit and was in fact not a party thereto.

At the January term of the trial court for 1916, and on the 81st day of said month, defendant Frank Andrews, receiver, filed his amended answer and therein denied all allegations of plaintiffs 'charging that F. S. Rice was injured through the negligence of him or any of his agents Or servants, and pleaded contributory negligence. He also made practically the same allegations as to the contract and negligence of Wells Fargo & Co., as he made with reference to Wells Fargo & Co. Express in his original answer, and concluded with a prayer that the Wells Fargo & Co. be made a party to the suit and for recovery over against said company for any sum that might be rendered against him as such receiver.

On February 15, 1916, plaintiff filed a contest to the prayer of defendant, Frank Andrews, receiver, to have the Wells Fargo & Co. made a party defendant, for the following reasons:

“(1) That, as shown by the pleadings in this ease, the said Wells Fargo & Co. is not a necessary party to this cause.
“(2) That, as shown by the pleadings in this case, the said Wells Fargo & Co. is not a proper party to this cause.
“(8) That, should the said Wells Fargo & Co. be made a party defendant to this cause, it will hinder and delay the trial of plaintiffs’ suit greatly to their prejudice, in .that an attempt will be made to remove this cause from the jurisdiction of this court to the federal court at Galveston, Tex.
“(4) That the application to implead the Wells Fargo & Co. as a party defendant in this cause comes too late and should not be granted for the reason that it will hinder and delay plaintiffs’ suit.
“(5) That the defendant’s pleading wherein the court is asked to grant them leave to implead the Wells Fargo & Co. shows no cause of action against the Wells Fargo & Co., and therefore shows no good reason for impleading said company as a party defendant in this cause.”

On the same day, February 15, 1916, the court made the following order: ■

“It appearing to the court that Wells Fargo & Co. is not a proper or necessary party to this cause, and it further appearing to the court that if said Wells Fargo & Co. should be brought in as a party to this cause at this time that Wells Fargo & Co. would immediately file a petition and bond in this .cause to remove the same to the United States District Court for the Southern District of Texas, at Galveston, and that to permit said company to be made a party to this cause would unreasonably delay the trial of plaintiffs’ case, it is the opinion of the court that the request of the defendant Frank Andrews, receiver, to implead said Wells Fargo & Co. as a party to this cause should be denied. It is therefore considered, and so ordered, adjudged, and decreed, that the application and petition of the defendant Frank Andrews, receiver of the St. Louis, Brownsville & Mexico Railway' Company, praying that Wells Fargo & Co. be impleaded as a party to this cause, be and the same is hereby denied. It is further ordered and decreed that the cross-bill .filed herein by said defendant against said Wells Fargo & Co. be and the same is hereby dismissed, to which ruling of the court said defendant excepts.”'

The cause was tried before a jury upon special issues, and in answer thereto they found:

(1) That F. S. Rice was injured at the time and place and in the manner alleged by plaintiffs in their petition.

(2)' That such injuries were the proximate cause of the death of F. S. Rice.

(3) That on the night of November 30, 1913, the time of the accident in question, there was an express truck standing on the depot grounds at Sweeny, Tex., where the accident occurred, at a point so near the north rail of the railroad track as not to permit a passage of a train without being struck by same.

(4) That the facts found to be true in the foregoing answer constituted negligence on the part of defendant, Frank Andrews, receiver.

(5) That the employés of said receiver who were operating the train which struck the truck which was thrown against and upon F. S. Rice were negligent in striking said truck.

(6) That said receiver was negligent in not providing lights at the depot grounds at the time and place of the accident which resulted in the injury of F. S. Rice.

(7) That the negligence stated in the foregoing paragraphs was the proximate cause of the injuries of F. S. Rice.

(8) That F. S. Rice was not guilty of contributory negligence in being at the place he was at the time he was injured.

(9) That Mrs. Minnie H. Rice, Paul Rice, and Winnifred Rice were damaged pecuniarily, by reason of the death of F. S. Rice, in the sum of $7,000, if paid now.

(10) That said sum of $7,000 should be divided as follows: Mrs. Minnie H. Rice, $5,000. Paul Rice, $1,000. Winnifred Rice, $1,000.

Judgment was rendered in favor of Mrs. Minnie H. Rice, Paul Rice, and Winnifred Rice for the sums found for them by the jury against Frank Andrews, receiver, and for said receiver against all other plaintiffs. Execution was also ordered to issue upon said judgment.

It is insisted by assignments 1 and 2, which seem to be grouped: First, that the trial court was without jurisdiction to hear and determine the issues between the plaintiffs and the defendant Frank Andrews, receiver, because Wells Fargo & Oo. had filed its application and bond for the removal of the cause to the United States District Court; second, that the court erred in refusing to permit the defendant Frank Andrews, receiver, to make Wells Fargo & Co. a party defendant, as prayed for in his third amended answer filed on the Slst day of January, 1916.

As heretofore shown in the statement of the pleadings of the parties and the orders of the trial court with reference thereto: Plaintiffs’ original petition was filed on the 25th day of January, 1915. That at the February term of the court for 1915, and on the 25th day of said month, the court made Wells Fargo & Co. Express, a corporation, party defendant, upon the application of Frank Andrews, receiver, filed in said cause on the 24th day of said month of February, 1915. That, upon making said Wells Fargo & Co. Express a party defendant, the cause was continued to the September term, 1915, of the court and set for trial on the 20th day of September, 1915. That as shown by said application of Frank Andrews, receiver, he or the railway company, of whose properties he is receiver, entered into the contract set out in said application, by the terms of which one N. M. Havens, the local agent of the railway company, was permitted to and did act also as agent for the Wells Fargo & Co.- (a corporation different from Wells Fargo & Co-. Express, made a. party by the court upon said application). That citation commanding service on Wells Fargo & Oo. Express was served upon Havens, the joint agent of the receiver Frank Andrews, and Wells Fargo & Co., who had not been made a party to the suit. That on the 7th day of -September, 1915, Wells Fargo & Co., not theretofore made a party to the suit, entered an appearance for the purpose, and only for the purpose, of presenting a petition, accompanied with its bond, praying for the removal of the cause to the United States District Court for the Southern District of Texas. That it is alleged in said petition that said company is the real and true defendant in the cross-action of Frank Andrews, receiver, and that the name “Wells Fargo & Co. Express,” given to it in said cross-action, is a misnomer of said party. That on September 14, 1915, upon the motion of plaintiffs, the court refused to approve the bond of Wells Fargo & Co., for the reason that the record did not disclose, nor was there any proof, that Wells Fargo & Oo. was a party to the suit, and that there were no proper pleadings filed within the time and in the manner required by law alleging that Wells Fargo & Co. Express and Wells Fargo & Co. were one and the same corporation, and that no proof was offered to that effect, or that the first-named corporation had been either impleaded, or had been served, or was a party to the suit, and for further reason that it appeared to the court that no party to the suit had filed petition and bond praying for the removal of the cause, as is required by law. That on September 20th, the day the case was called for trial, Wells Fargo & Go. filed its plea in abatement and prayer for quashal of the citation served upon its agent, Havens, and therein alleged as follows:

“This defendant alleges that its correct and proper name is Wells Fargo & Co.; that it is a corporation, duly incorporated under the laws of the state of Colorado under the corporate name of ‘Wells Fargo & Co.’; and that it has been incorrectly sued herein by said defendant Frank Andrews, as receiver of the St. Louis, Brownsville & Mexico Railway Company, in the first amended original answer and cross-petition filed by said defendant Frank Andrews, as receiver of the St. Louis, Brownsville & Mexico Railway Company, in said above numbered and entitled suit on February 24, 1915, under the misnomer of ‘Wells Fargo & Co. Express’; that the citation served upon this defendant misnames this defendant as ‘Wells Fargo & Co. Express,’ and that the return of the sheriff of Brazoria county showing service of said citation upon tlie agent of this defendant company, at Angleton, in Brazoria county, Tex., misnames this defendant ‘Wells Fargo & Co. Express’; that said citation is wholly insufficient in law to require this defendant to appear and answer herein.”

That its prayer was as follows:

“Wherefore, this defendant Wells Fargo & Co. prays that this suit abate, be discontinued, and be dismissed as against this defendant Wells Fargo & Co., and that this defendant go hence with its costs; and this defendant prays for all such otter and further relief to which it may be entitled.”

That' upon the presentation of said plea in abatement to the court the same was sustained, and Wells Fargo & Co. was dismissed from the cause. That the case then proceeded to trial of the issues between plaintiffs and Frank Andrews, receiver, on the 20th of September, 1915, and that, the jury being unable to agree upon a verdict, it was discharged and the cause was continued to the February, 1916, term of the court. That on the 31st day of January, 1916, more than a year after plaintiffs’ petition was filed, and only a few days prior to the final trial of the cause, defendant for the first time asked that Wells Fargo & Co. be made a party defendant; and that at no time prior to the dismissal of Wells Fargo & Co. upon its plea in abatement, on September 20, 1915, did defendant ask that said company be made a party defendant. That on the 15th day of February, 1916, the court refused defendant’s application to make Wells Fargo & Co. a party to the suit for the reasons hereinbefore set out.

It is apparent from the record that defendant by its pleadings made Wells Fargo & Co. Express, and not Wells- Fargo & Co., applicant for removal, a party defendant, and at no time prior to the dismissal of Wells Fargo & Co. from the case on its plea in abatement did defendant ask that said company be made a party, or accede to the persistent contention of said company that it was in fact the company made a party. Wells Fargo & Co. could not substitute itself for the Wells Fargo & Co. Express, in-i terpleaded by defendant, by entering its appearance only, for the purpose of filing bond and petition for a removal of the cause to the United States District Court. It was not a party to the suit at that time, and the court did not err in so holding and in refusing to remove the cause upon its application.

The courts of this state are not bound to surrender their jurisdiction upon a petition for removal until a petition is filed which, upon its face, shows the right of the petitioner to the transfer. Amory v. Amory, 95 U. S. 186, 24 L. Ed. 428; Gregory v. Hartley, 113 U. S. 742, 5 Sup. Ct. 743, 28 L. Ed. 1150; Stone v. State of South Carolina, 117 U. S. 430, 6 Sup. Ct. 799, 29 L. Ed. 962; Southern Pac. Co. v. Block, 84 Tex. 21, 19 S. W. 300.

The right of removal depends upon the case disclosed by the pleadings when the petition therefor is filed, and not by the allegations of a petition thereafter filed, or of subsequent proceedings. Wilson v. Oswego Township, 151 U. S. 66, 14 Sup. Ct. 259, 38 L. Ed. 70; Barney v. Latham, 103 U. S. 205, 26 L. Ed. 514.

Where the petition of the defendant to make a new party, as in this cause, does not set up a cause of action against his code-fendant, against whom the plaintiff has no cause of action, and who was not an original party to the suit, but was impleaded by defendant, the state court does not err in refusing to remove the cause to the federal court upon the application of the party so impleaded.

If it be conceded that the Wells Fargo & Co. was the party impleaded by the defendant, still there are no facts or combination of facts alleged in defendant’s cross-action showing any liability on the part of such company to defendant in the event judgment was rendered against defendant. The defendant’s allegations of the existence of the contract btween him and the express company, and that the truck which was left upon the platform of the railway company near the track of the railroad, and which was thrown upon the deceased by the train, belonged to the express company, does not allege a cause of action for which he could recover against the express company in the event of a recovery by plaintiffs against him. H. & T. C. Ry. Co. v. Wells Fargo & Co., 59 Tex. Civ. App. 241, 125 S. W. 971; Lipscomb v. Railway Co., 95 Tex. 15, 64 S. W. 923, 55 L. R. A. 869, 93 Am. St. Rep. 804.

In the case of H. & T. C. Ry. Co. v. Wells Fargo & Co., supra, the court says;

“The ground upon which the railroad company was liable to plaintiffs was that their deceased ancestor, when injured, was a passenger, and the railway company owed him the duty of exercising toward him that high degree of care due from a carrier to a passenger, and that it had failed in the performance of this duty, in that its platform was not in a safe condition for the use of persons and passengers entering its cars, and because of the company’s negligence in that respect it was liable. The injuries to Kiber resulted from an express truck upon the railroad platform, which was within 18 inches of the train, and which came in contact with Kiber, dragging him from the train and causing him to be run over, which injuries resulted in his death. The appellant introduced in evidence a written contract between the railway company and the express company, authorizing the express company to use the depot grounds of the railway company. It is argued by appellant that the-express truck was left at the place where it was by the express company, and that, if there was negligence in leaving the truck at this particular place, it was the negligence of the express company, and for this reason the court should have rendered judgment in favor of appellant and against the express company for the amount that plaintiffs .recovered against the railroad company. We do not agree to this contention. The express company could only act through its servants and agents in the use of the trucks, and the act of a servant in leaving the truck within 18 inches of the car would not in law be the act of the express .company itself. There was no contractual relation between Kiber and the express company, and that company owed no duty to Kiber to furnish him a safe platform f^om which to enter the cars. The railway company did owe Kiber a duty which'it failed to perform, and the injuries to Kiber resulted from such failure. Even if, as argued by appellant, the servants of the express company were negligent in leaving the truck where it was left, still the court did not err in refusing to enter judgment in favor of the appellant company and against the express company.”

The court did not err in refusing to permit the defendant to make Wells Fargo &

Co. party defendant, upon the petition therefor filed January 31, 1916, for the reason hereinbefore given justifying the court in refusing the removal of the cause, and for the further reason that the express company was in no sense a necessary party, and that the making such new party at that time would have confused and delayed the trial of plaintiffs’ suit. In such case it is within the discretion of the court to refuse to permit the bringing in of new parties, and the exercise of such discretion is not an abuse of such powers. R. S. of Texas 1911, art. 1848; Reed v. Coffey, 40 S. W. 1027; Phelps v. Scott, 49 S. W. 687; Ry. Co. v. Corr, 130 S. W. 185; Curtis v. Bank, 138 S. W. at page 797; Carder v. Johnson, 109 S. W. 944.

Assignments 1 and 2 are overruled.

The court did not abuse its discretion in permitting the witness Hoover, after defendant had offered .his evidence and rested, to testify in behalf of plaintiffs that he was a fireman on the train which struck the truck (which was thrown against S. F. Rice), and that he heard a noise, looked down, and saw the truck shoot out as though it had been struck by the train. R. S. of Texas, art. 1952; Wright v. Giles, 60 Tex. Civ. App. 550, 129 S. W. 1163; S. L. S. W. Ry. Co. v. Lowe, 97 S. W. 1087; G., C. & S. F. Ry. Co. v. Johnson, 83 Tex. 628, 19 S. W. 151. We overrule the third assignment.

We do not think the argument of counsel, complained of by the fourth assignment, was improper. The assignment is therefore overruled.

Assignments 5 to 20, inclusive, and assignments' 25, 26, 27, and 28, in which complaint is made of the charge of the court, are overruled. We have carefully examined the charge of the court, and conclude that it is not subject to the objections urged by the assignments.

Assignments 21, 22, 24, 30, 31, 32, 33, 34, 36, 37, 39, 40, and 42 complain of the refusal of the court to submit to the jury special charges requested by • defendant. We. have carefully examined the many special charges, and conclude that such of them as might have been properly given were covered by the court’s main charge, and therefore were properly refused. The others were properly refused because objectionable and immaterial as to any issue in the case.

By assignments 23, 29, 35, 41, and 43, it is insisted that the findings of the jury upon the special issues submitted are not supported by the evidence, but are contrary to the evidence, and that there was no evidence to support the judgment rendered by the court. There is no merit in these contentions. The evidence was amply sufficient to support the findings of the jury and to support the judgment rendered.

We overrule the forty-fourth assignment of error, by which appellant insists that the judgment rendered is excessive. The evidence in our judgment amply supports the judgment.

The judgment of the trial court directed the issuance of execution for its collection. This is error. No execution shall issue upon the judgment, but appellees may present their claim evidenced by] the judgment, to the court in which the receivership of the railway' company is pending, for approval and payment, and the judgment is so reformed.

The judgment of the trial court as here reformed is affirmed.

Reformed and affirmed.
      <@m>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: LEVY, J.

text:
    ROSS et al. v. SCHULTZ et al.
    (No. 1834.)
    (Court of Civil Appeals of Texas. Texarkana.
    July 12, 1917.
    Rehearing Denied Nov. 15, 1917.)
    1. Chattel Mortgages <®=48^ — Suebiciency oe Description oe Property — Crops.
    A chattel mortgage describing the property as the first four bales of cotton and cotton seed grown and gathered by the mortgagor in a certain year was sufficiently definite and specific and' segregated the mortgaged cotton from the othgr part of the crop.
    2. Chattel Mortgages ⅜=>116 — Construction — Property Mortgaged.
    A chattel mortgage will convey all property ascertainable from the description, and the specified property becomes subject to the lien, ■but other property, not within the description contained in the mortgage, -will not pass.
    3. Chattel Mortgages <®=>138(3) — Lien — Priorities — Landlord’s Lien.
    A landlord furnishing supplies to the tenant directly and through a third party, pursuant to an agreement between him and such third party, had a lien on the tenant’s interest in the crop superior to that of a holder of a mortgage given by the tenant on his interest in the crop.
    4. Chattel Mortgages <®=roll7 — Property Subject to Lien — Crops.
    Where a chattel mortgage given by a tenant described the mortgaged property as the first four bales of cotton and cotton seed grown on the landlord’s farm in a certain year, and the value of the tenant’s interest in the first four bales was insufficient to satisfy the landlord’s superior lien for supplies, the chattel mortgagee had no lien on the remaining bales of cotton and cotton seed, and could not recover for conversion thereof.
    Appeal from Robertson County Court; J. L. Goodman, Judge. .
    Suit by Paul Schultz and others against T. Ross and others. From a judgment for plaintiffs, certain of the defendants appeal.
    Reversed and rendered.
    On December 4, 19X4, B. Harlan and wife executed a chattel mortgage to the appellee Schultz to secure payment of their note t'o him in the sum of $250, and bearing interest from date thereof. The mortgage was duly placed of record in the county clerk’s office on December 21, 1914. On November 9, Í915, the appellee Schultz brought the action on the note and to foreclose the chattel mortgage lien, alleging that he had a registered chattel mortgage lien—
    “on the following described personal property and chattels, to wit, the first four bales of cotton and cotton seed planted, grown, and gathered by them, the said B. Harlan and wife, on the farm of C. F. Gilstrap, or any other land cultivated by them during the year 1915, each bale of said cotton to weigh not less than five hundred pounds lint and be of good average grade of cotton; also two set of wagon and plow harness, two cultivators and plows complete, one secondhand planter, and all plow -implements.”
    The plaintiff further impleaded appellants T. Ross & Son and O. F. Gilstrap, alleging conversion of the first four bales of cotton gathered by Harlan in 1915 on the farm of G. F. Gilstrap by T. Ross & Son, and of the cotton seed of the first four bales of cotton by O. F. Gilstrap. B. Harlan was a tenant on the farm of 'O. F. Gilstrap during the year 1915. O. F. Gilstrap furnished the teams and tools, and was to receive as rent one-half of the crops raised by B. Harlan. All the appellees had actual notice of Schultz’s mortgage.
    There was trial before the court without a jury, and the court made findings of fact, which, as material to the appeal, are given. The court found that B. Harlan, under his contract of tenancy with G. F. Gilstrap, raised and gathered seven bales’of cotton and 1,000 pounds of seed cotton; that O. F. Gil-strap had full possession of and control of the gathering and marketing of all the cotton and cotton seed; that he sold, as belonging to said crop, all of the cotton gathered, the first four bales weighing 2,261 pounds, and sold by defendant Gilstrap to T. Ross & Son for 11¾ cents per pound; that the remaining three bales and the remnant of 1,000 pounds were sold by Gilstrap to T. Ross & Son for 11 cents per pound; that there were four tons of seed, of the value of $40 per ton; that one-half of the cotton and cotton seed belonged to B. Harlan; that O. F. Gilstrap directly furnished and advanced to B. Harlan supplies and advances necessary to make and gather the crop in the sum, of $35.50, which was reasonably necessary to make the crop and gather the same; that B. Harlan was further indebted to G. F. Gilstrap for goods, wares, and merchandise furnished him through T. Ross & Son in the sum of $199.94, and that same was a reasonable price .therefor and was necessary for Harlan to make and gather the crop on the farm of defendant; that 'C. F. Gilstrap made arrangements with T. Ross & Son to furnish the supplies before any of the goods, wares, and merchandise were furnished by them to B. Harlan, and that the price of such merchandise was charged on ledger to O. F. Gilstrap by B. Harlan, and that same was so charged pursuant to an agreement by and between Gil-strap and T. Ross •& Son. B. Harlan confessed judgment. The court awarded recovery against Gilstrap for the value of one-half the cotton seed, and against T. Ross & Son for the excess of the value of the eight bales of cotton above the landlord’s debt.
    Perry & Woods, of Franklin, for appellants. H. S. Morehead, of Franklin, for appellees.
   LEVY, J.

(after stating the facts as above).

In view of the pleadings and facts found by the court, it is believed that the appellants’ contention should be sustained, and that the court erred in holding the defendants liable in conversion. The plaintiff Schultz pleaded in his petition that he had an existing chattel mortgage upon “the first four bales of cotton and cotton seed planted, grown, and gathered by B. Harlan and wife on tbe farm of C. F. Gilstrap, or any other land cultivated by them during tbe year 1915, each bale of said cotton to weigh not less than five hundred pounds lint and be of good average grade of cotton,” and further pleaded the conversion of the first four bales of cotton and cotton seed grown and gathered by B. Harlan and wife on the farm of G. F. Gilstrap in the year 1915. And the court finds as a fact that the mortgage given by Harlan to the plaintiff Schultz covered Harlan’s one-half interest in—

“the first four bales of cotton and cotton seed planted, grown, and raised by Harlan and wife on the farm of O. F. Gilstrap in Robertson county, Texas, during the year 1915.”

Thus it appears that the mortgage of the plaintiff specified the property upon which the lien is to take effect, as pleaded and proved, as “the first four bales of cotton and cotton seed” that was1 to be grown and gathered on the farm of Gilstrap in the year 1915. The description of the property intended to be mortgaged is sufficiently definite and specific and segregates it from the other part of the crop. Robertson v. Mauldin, Montague & Co., 11 Ala. 977; Stearns v. Gafford, 56 Ala. 544. And it is fundamental that a m'ortgage will convey all the property ascertainable from the description, and the specified property becomes subject to the lien of the mortgage; but other property not within the description contained in the mortgage will not pass under it. 6 Cyc. 1022. Having a mortgage lien expressly covering only the first four bales of cotton and cotton seed, as pleaded and proven, the plaintiff Schultz was not entitled to recover against the appellants; for, as found by the court, appellant Gilstrap, the landlord, furnished supplies to the tenant directly and through T. Ross & Son, pursuant to an agreement made by and between Gilstrap and T. Ross & Son, to the aggregate amount of $235.45. The legal effect of this finding of fact is to give the landlord, Gilstrap, a lien superior to the mortgage lien of the plaintiff to the full amount of supplies so furnished. And the first four bales of cotton gathered by the tenant were, as found by the court, of the value of $265.66, in only one-half of which the tenant had an interest. The cotton seed of the first four bales of cotton was of the value of $80, and in only one-half of this did the tenant have an interest. Thus the value of the tenant’s one-half of the first four bales of cotton and cotton seed gathered in 1915 did not equal the amount of the debt owing to the landlord for the supplies furnished him. And if the proceeds of 'the sale of the remaining and second four bales of cotton and cotton seed exceeded the unpaid balance of the landlord’s debt, the plaintiff Schultz had no right to recover, as of conversion, against appellants for such excess, for the plaintiff Schultz had no lien on the said remaining and second four bales of cotton and cotton seed.

There are no equities set out in the pleadings of the plaintiff entitling him to recover of appellants a judgment for the surplus money in the evidence arising from the salo of the last or second four bales of cotton and cotton seed in evidence.

The judgment, as against appellants, is reversed and here rendered in favor of the appellants. The costs of the trial court incurred by the appellants and the costs of this appeal are taxed against the appellee Schultz. The judgment of the trial court as to Harlan, not being appealed from, will remain undisturbed.
      fcx>For otlier eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WILDSON, C. J.

text:
    SAN ANTONIO & A. P. RY. CO. v. EVANS.
    (No. 1821.)
    (Court of Civil Appeals of Texas. Texarkana.
    June 28, 1917.
    Rehearing Denied Oct. 4, 1917.)
    1. Husband and Wife <@=>273 (12) — Community Property — Actions by Survivor.
    In an action by the widow and children of E. to recover for damages to land, wherein the petition alleged that plaintiffs were the legal heirs of E. and the owner of the described premises, the allegation that they were the heirs of E1. should be treated as merely descriptive, and not as an allegation of the capacity in which they sued, and, under the following allegation that they were owners of the described premises, proof was admissible that the land belonged to the community estate of B. and the widow.
    2. Husband and Wipe <@=3273(12) — Community Property — Actions by Survivor.
    The surviving widow has a right to recover damages accruing to community property during the lifetime of the husband.
    3. Husband and Wipe <@=>273(12) — Community Property — Actions by Survivor.
    The surviving widow is a tenant in common of community property with the children, and not entitled to recover the entire damages to the property accruing after the death of the husband, but only such proportional part thereof as her interest in the property bears to the whole property.
    4. Appeal and Error <@=>877(6) — Persons Entitled to Allege Errors.
    In an action by a widow and children to recover damages accruing to community property after the death of the husband, defendant could not complain of a judgment for the widow for the whole damages sustained and adjudging that the children take nothing by the suit.
    5. Appeal and Error <@=877(6) — Persons Entitled to Allege Errors.
    In such action, the court charged that the widow was the sole plaintiff, and that the jury should not consider the claims of the other plaintiffs, and rendered a judgment reciting that, after hearing the pleadings and evidence, the court instructed the jury that the widow was the sole plaintiff and dismissed as to the other plaintiffs, and, in conclusion, ordering, adjudging, and decreeing' that the children take nothing as against the defendant. Held, that the court did not dismiss the children from the suit before judgment, which it was without power to do, but merely determined that there was no testimony on which a recovery by the children could be based, and hence the error was not prejudicial to defendant’s rights and he could not complain thereof.
    Appeal from District Court, McDennan County; Edwin J. Clark, Judge.
    . Action by Eliza Evans and others against the San Antonio & Aransas Pass Railway Company. Etom a judgment for the plaintiff named, defendant appeals.
    Affirmed.
    As commenced, the suit was by appellee Eliza Evans, widow of Mose Evans, deceased, and their children and grandchildren, to wit, Viola I-Iicks joined by her husband, Will Hicks, Minerva Green joined by her husband, Billy Green, Rater, Robert, Jack, Alice, Erie-on, Altea, August, and Irwin Evans, against appellant. It was to recover damages tbe plaintiffs alleged they bad suffered because of the construction by appellant of its roadbed without “the necessary culverts or sluices, as the natural lay of the land requires, for the necessary drainage thereof” (article 6495, Vernon’s Statutes), whereby water was diverted onto land they owned, injuring same and destroying crops thereupon. In their petition plaintiffs alleged that “they are the legal heirs of Mose Evans, deceased, and are the owners of the hereinafter described premises and property.” After instructing the jury that appellee Eliza Evans was the “sole plaintiff in this cause,” and not to “consider the claims of the other plaintiffs herein,” the court submitted special issues (30 in number) to the jury, and on findings made by them rendered judgment in favor of ap-pellee against appellant for $1,410. In the judgment it was recited that:
    “The court, after hearing the pleadings and evidence, instructed the jury that Eliza E'vans is the sole plaintiff herein, and dismissed as to the other plaintiffs in said cause.”
    The concluding part of the judgment was as follows:
    “It is further ordered, adjudged, and decreed by the court "that the plaintiffs Rater Evans, Jack Evans, Robert Evans, Alice Evans, Altea Evans, Ei-leon Evans; by their next friend Alice Evans,-August Evans, Irwin Evans, Viola Hicks and husband Will Hicks, Minerva Green and husband Billy Green, take nothing as against the defendant, San Antonio & Aransas Pass Railway Company.”
    Appellee having entered a remittitur of $70 of the sum adjudged in her favor, the court overruled appellant’s motion for a new trial, whereupon it prosecuted this appeal. The plaintiffs against whom the court rendered judgment did not complain thereof, and they are not parties to the appeal.
    Neff & Taylor, of Waco, for appellant. G. W. Barcus and Alva Bryan, both of Waco, for appellee. •
   WILDSON, C. J.

(after stating the facts as above).

Appellant does not contend that tbe land was not damaged nor crops thereon destroyed because of a failure on its part to construct its roadbed as required by law, nor does it contend that tbe sum adjudged against it exceeded tbe damages to the land and crops. The contention (that is, the only one we think it worth while to discuss) it makes is that appellee was not entitled to recover the damages as determined by the trial court. Tbe contention is based on several minor ones, to wit:

1. That it conclusively appeared from the testimony that appellee owned only an estate for life in the land. Not only did it not so appear, but, on the contrary, it conclusively appeared that the land belonged to the community estate between appellee and her deceased husband, Mose Evans, and was their homestead at the time be died (seven or eight months before tbe suit was commenced) , and after his death continued to be appellee’s homestead. It thus appeared that appellee owned at least an undivided one-half of the land. And if, in the absence, as was the case, of proof of the probate thereof, the will of Mose Evans admitted as evidence, without objection on appellant’s part, should be given effect, it further appeared that ap-pellee also owned, as said Mose Evans’ dev-isee, a life estate in his one-half interest in the land, and was the executrix of the will, independent of control by the probate court.

2. That the suit was by appellee and the other plaintiffs as heirs of Mose Evans, deceased, and was not maintainable by them in the absence, as was the case, of an allegation and proof that an administration had not been opened on his estate and that a. necessity for such an administration did not exist. The insistence that the suit was by the plaintiffs as heirs is based on an allegation in the petition set out in the statement above, and, we think, is not tenable. The allegation of the plaintiffs that they “are the legal heirs of Mose Evans, de-4 ceased,” should, we think, be treated as descriptive merely, and not as an allegation of the capacity in which they sued. The allegation following the one quoted, that the plaintiffs “are the owners of the hereinafter described premises and property,” we think authorized the proof made by appel-lee, without objection on the part of appellant, that the land belonged to the com-' munity estate between her and her husband. As we understand the ruling of the Supreme Court in Ry. Co. v. Goldman, 87 Tex. 567, 29 S. W. 1062, appellee, as the survivor of the marriage between her and Mose Evans, had a right to recover the damages which accrued during the lifetime of her husband. In that case the husband and wife joined each other in a suit against the railway company for damages to land constituting their homestead and belonging to their community estate, caused by water diverted from its natural course by the railway company. Before the trial the wife died, and the husband was allowed to prosecute the suit — ■

“over the objection of the defendant to the effect that, since the petition disclosed the fact that the wife left children surviving, and that the cause of action was community property and did not show the existence of community debts or that the husband had qualified as survivor in community, the children were necessary parties.”

The Supreme Court held that the survivor of the marriage had—

“the power of a surviving partner to sue for, collect, and preserve, the community estate in trust for himself and' others interested as creditors, or otherwise, subject to be controlled by a court of equity when necessary to protect the beneficiaries.”

3. That it appeared that a part of the damages sued for and recovered accrued after the death of Mose Evans. The insistence as to this is that appellee and the othert plaintiffs were tenants in common of the land after the death of Mose Evans, and therefore that appellee was not entitled to recover the entire damages accruing after his death, but only such proportional part thereof as her interest in the property bore to the whole of same. If we thought appellant had a right to make the contention we would sustain it, on the authority of Rowland v. Murphy, 66 Tex. 534, 1 S. W. 658, and cases) like it. All the owners in common of the property were before the court, and the judgment was that none of them, except appellee, take anything by the suit against appellant. The plaintiffs other than appel-lee doubtless had a right to complain of the judgment, but they did not. No greater sum than it was liable for having been adjudged against appellant, it has no right to complain under the circumstances, because the adjudication was in favor of one instead of all the parties plaintiff. The contention made that the plaintiffs other than ap-pellee were dismissed from the suit before the judgment was rendered is not tenable. The court was without power to dismiss them, and we think it appears from the judgment that he did not attempt to do so. á.s we construe the charge and the judgment, what the court did, and had power to do, was to dbtermine that there was no testimony on which a recovery by any of tbe plaintiffs other than appellee could be based. If he erred in Ms conclusion, the error was not prejudicial to rights of appellant and it cannot be heard to complain thereof.

Assignments presenting other contentions than those discussed are also overruled.

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