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

    (No. 954.)
    (Court of Civil Appeals of Texas. Amarillo.
    April 12, 1916.
    Rehearing Denied May 10, 1916.)
    1. Tbial <&wkey;194(19) — Instructions—Weight oj? Evibence.
    In a servant’s action for injuries, where the plaintiff testified that he was ordered by the conductor to uncouple cars, the language of an instruction that, if the plaintiff went between the cars to manipulate the couplers between said cars, under immediate control and eye of the conductor to uncouple two of the cars, etc., was proper, and was not upon the weight of the evidence or an enlargement of the testimony.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 466; Dec. Dig. &wkey;194(19).)
    2. Trial <&wkey;252(ll) — Instructions.
    In a servant’s action for injuries, the words “suddenly and unexpectedly” in an instruction, used with reference to the movement of the train at the time plaintiff was injured in going between two ears to uncouple them, must necessarily have been understood by the jury as relative, and in that sense is supported by the plain-tiif’s testimony that the movement was sudden and unexpected in one direction when he had given the signal to go in the other.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 603; Dee. Dig. <&wkey;>252(ll)J
    3. Master and Servant &wkey;>296(12) — Injuries to Servant — Instructions.
    Defendant’s requested charge that if plaintiff in discharge of his duty could have uncoupled the cars by use of available means which did not require him to go between the cars and that in the exercise of ordinary care he should have used other available means for cutting the cars without going between them, verdict must be for the defendant was properly refused, since if the jury had found contributory negligence as suggested therein, it would have been a peremptory instruction against the negligence of the defendants as charged by the petition and raised by the evidence.
    [Ed. Note. — For other cases, see Appeal and Error, Gent. Dig. § 1189; Dec. Dig. <&wkey;>296(12).]
    4. Trial c&wkey;203(l) — Instructions—Prejudicial Error.
    The refusal of a special charge applicable to the facts and not covered by the general charge is error.
    [Ed. Note, — For other cases, see Trial, Cent. Dig. §§ 477-479; Dec. Dig. &wkey;203(l).]
    5. Appeal and Error <&wkey;1068(5) — Review-Harmless Error.
    In a servant’s action for injuries, where the jury were instructed in the general charge as to concurring negligence and the proposition under the statute touching diminution of damages proportionate to contributory negligence, although the jury did not find on the question of contributory negligence, but the general verdict was not unreasonable for a permanent injury to plaintiff’s foot, whether or not he was found guilty of contributory negligence, error in refusing an instruction that if they believed the plaintiff in the exercise of ordinary care could have uncoupled the car by the use of the lever on the other side, and if they further find that the plaintiff raised the pin too high and that in so doing failed to exercise ordinary care, they should find for the defendant, unless they should find that the defendant’s employés failed to exercise ordinary care in obeying signals given by the plaintiff, was harmless.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. § 4230; Dec. Dig. &wkey;>10C8(5); Trial, Cent. Dig. §§ 475, 480, 525, 553, 558.]
    6. Master and Servant <&wkey;296(12) — Injuries to Servant — Admissibility oe Evidence.
    In a servant’s action for injuries, evidence that the plaintiff had gone between two cars at other times to uncouple them, and that such acts were not unusual, was admissible to rebut defendant’s reliance upon an application of employment in which it was agreed that the plaintiff was not required to use defective cars and machinery.
    [Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. § 1189; Dec. Dig. c&wkey;> 290(12).]
    7. Evidence <&wkey;20(2) — Judicial Notice.
    The court will not take judicial notice of a lease of the operating part of a railroad, although authorized by the Railroad Commission under the statute.
    [Ed. Note. — Por other cases, see Evidence, Cent. Dig. § 24; Dec. Dig. <5&wkey;20(2).]
    Appeal from District Court, Parmer County ;, D. B. Hill, Judge.
    Action by R. E. 'Chatten against the Pecos & Northern Texas Railway Company and another. Judgment for the plaintiff, and defendants appeal.
    Affirmed.
    Terry, Cavin & Mills, of Galveston, Madden, Trulove, Ryburn & Pipkin, of Amarillo, Carl Gilliland, of Hereford, and Sam G. Bratton, of Clovis, New Mexico, for appellants. L. C. Barrett and Jas. N, Browning, both of Amarillo, for appellee.

      Application for writ of error pending in Supreme Court.

   HENDRICKS, J.

The plaintiff, and appel-lee, Chatten, alleged that while in the employ of defendant, repairing a road, it was his duty to uncouple certain cars, the coupling upon one of which was out of order and did not work automatically, requiring him to go between the ears and use his hands for that purpose; that while between the cars he signaled the engineer for the movement of the train in a certain direction, and said engineer suddenly moved said cars in an opposite direction from "that indicated by his signal, and that on account of the sudden and unexpected movement of said train, his left foot was caught and run over and was mashed and crushed, inflicting permanent injuries; that defendant’s agents, in moving the train in an opposite direction from that indicated by the signal, and permitting an automatic coupler to be in bad repair so as to require plaintiff to go between the cars to uncouple the same, constituted negligence. The automatic coupler alleged to 'have been out of order was operated by a lever in a position on the side and end of the car, precluding the necessity of coupling and uncoupling by the brakeman between the cars. The allegations of the plaintiff, as to the negligence of the employés of the defendant, with reference to the movement by the engineer of his engine in an opposite direction from the signal indicated, and the bad repair of the automatic coupler, were sustained by the testimony. The defendants specially answered by pleas of assumed risk and contributory' negligence, and especially that plaintiff had been cautioned and warned not to. go between the cars, and had violated the rules of the company in so doing, and had signed an application for employment, stating that he knew that he was not required to go into dangerous places and expose himself to hazardous positions.

The trial court, in the fourth paragraph of his charge, instructed the jury that if plaintiff went in between the cars—

“to manipulate the couplers between said cars, under the directions of the conductor, to uncouple two of the cars, and the coupler and attachments thereto were so out of order that the same would not uncouple without the necessity of the plaintiff going in between said cars and manipulating- the coupler or its attachments with his hands, and that plaintiff signaled the servants operating the train to move it in one direction, and instead of so moving the train in the direction that plaintiff’s signal indicated, the same should be moved, the servants operating the train moved it in the opposite direction, suddenly and unexpectedly to plaintiff, and the wheel of one of the cars caught the foot of the plaintiff and injured it, and that the allowing of the couplers to be out of order, if this was so, and the moving of the train in the opposite direction to that indicated by the signal of the plaintiff, if this was a fact, was negligence and the proximate cause of the injury, and (if) you fail to find that plaintiff assumed the risk you will find for plaintiff and assess his damages, unless you find for the defendant under some other charge herein given you.”

The fifth assignment of error complains that the language, “that he went between the cars to manipulate the couplers between said cars under immediate control of the eye of the conductor to couple the two cars,” is upon the weight of the evidence and an enlargement upon the testimony. Plaintiff’s own statement, we think, refutes this assertion.

“The plaintiff testified that the conductor said ‘Get the pin,’ and that the conductor was hardly 30 feet away at the time, and that the conductor said, ‘Cut ’em in two, and pull the pin,' and he could not get it, and that the conductor said, ‘Pull the other one.’ ”

The sixth assignment complains that the words, “suddenly and unexpectedly,” with reference to the movement of the train at the time plaintiff was hurt, was error because unsupported by the facts. The jury necessarily understood that the language used was relative, and in that sense the testimony supports that the movement was a sudden and unexpected movement, if they believed the plaintiff.

The seventh assignment of error complains of the charge to the jury defining contributory negligence, in that it was not applied to the facts of the case as proven. Part of the assignment is based upon the action of the trial court in overruling the sixth paragraph of defendant’s objections and exceptions to his charge. The statement under this assignment does not set forth the objection to the general charge. When we turn to the transcript the objections to the general charge are, in substance, that contributory negligence is not applied to the facts.

In this same assignment (the seventh) the refusal of the following special charge by the trial court is also called in question:

“If you believe that the plaintiff, in the discharge of his duties, could have cut the cars by going over the cars and using the lever on the opposite side from where he was working, or by the use of other available means, if any, which did not require him to go between the cars, and you further find and believe that, in the exercise of ordinary care for his own safety, he should have gone over the cars and used the lever on the opposite of the cars, or should have used other available means, if any, for cutting the cars, without going between the cars, or placing his body or limbs in a dangerous position, then you will return a verdict for the defendant.”

Such a charge, if given by the court, would have been wholly erroneous. If they found contributory negligence as1 suggested therein, it would have been a peremptory instruction against the negligence of the defendants, as charged by the petition and raised by the evidence. Specially requested charge No. 7, also embodied in this assignment, as having been refused by the trial court, is merely a ' general declaration that plaintiff should exercise ordinary care in the discharge of his duties, and as to its peremptory feature is in the same condition as the previous special charge.

The eighth assignment of error embodies a complaint on account of the trial court’s refusal of the following special charge:

“If you believe that by the exercise of ordinary care and diligence the plaintiff, in the discharge of his duties, could have uncoupled the car by the use of the lever on the side of the train where he was working, and you further find that plaintiff raised the pin too high, and that in so doing he failed to exercise ordinary care, then you will find in favor of the defendants, unless you should find that the defendants’ employés failed to exercise ordinary care in receiving, transmitting, and acting upon signals given by the plaintiff.”

Under this assignment is the following statement:

“Plaintiff testified that he raised the pin too high. The undisputed evidence by all the trainmen testifying was to the effect that Chatten fthe plaintiff) could have used another lever on the side he was working, or could have gone across the car and have used the lever on the other side.”

We fail to see what the lever on the other side and plaintiff’s accessibility to it has to do with this particular charge. The statement that plaintiff testified that he raised the pin too high is rather speculative as to its meaning. Of course the rule is thoroughly settled that a special charge, applicable to the facts, if not covered by the general charge, if refused, constitutes error. This charge is a little hard to understand, unless it means that plaintiff, in the discharge of his duties, could have uncoupled the car by the use of the lever (which the charge does not state), and in so doing raised the pin too high, and thereby was guilty of negligence, to find for the defendants, unless the jury-find that defendants’ employés failed to exercise ordinary care in receiving, transmitting, and acting upon signals given by the plaintiff. In this case the jury returned a general verdict for $7,500. The trial court, in his general charge, presented concurring negligence and the proposition under the statute of the diminution of damages proportionate to contributory negligence; also submitted to the jury a special charge requested by the defendants, upon the same question. The Supreme Court of the United States said that:

“The statutory direction that the diminution shall be in proportion to the amount of negligence attributable to such employe means, and can only mean, that where the casual negligence is partly attributable to him and partly to the carrier, he shall not recover full damages, but only a proportional amount, bearing the same relation to the full amount as the negligence attributable to both.”

It is certain that the jury, found defendant’s negligence. That being true, if such a charge had been submitted, it could not have availed the defendant of any substantial benefit, except probably to call the jury’s attention more directly to the question of the lever and plaintiff’s operation of same on the side of the car where he was working. This court, in speaking of a similar charge, said:

“If the charge had told the jury to diminish the damages in proportion to appellee’s negligence, then its refusal might have been harmful, and perhaps such a charge should have been given.” Pecos & Northern Texas Ky. Co. v. Winkler, 179 S. W. 695.

In view of the fact that the defendant was found by the jury to have been negligent in that case, the refusal of the charge, as applied to the actual conditions, was held harmless. If plaintiff was negligent in the opera-ton of the lever on the side of the car where he was working, this record does not disclose whether the jury found contributory negligence, or excluded it, when they rendered merely a general verdict for $7,500. They could have found either way. In reading-plaintiff’s testimony as to his injuries, the amount of the verdict could not be considered excessive in view of numerous decisions of our higher courts. Regarding it as a permanent injury to liis foot, the jury may have found contributory negligence, and deducted an amount on account of such a finding. We are unable to tell.

The ninth assignment of error is an argumentative presentation of the facts, from the defendant’s standpoint that the verdict of the jury is contrary to the evidence. We overrule it.

The second assignment of error is a complaint against the action of the court in permitting plaintiff to testify that he had gone between the cars before the time that he received his injury, while working on construction work of the defendant, and had done so in the presence of the conductor; also 'in permitting the witness Truskett to state that on different occasions he had seen trainmen go between the cars to couple and uncouple them, and that such acts were not unusual. The objections were that such testimony was immaterial and irrelevant, because the plaintiff knew that he was not required to use defective machinery and if he did so, it was at his own risk; it being understood and agreed when he entered the service of the company that he was not required to use defective cars or machinery. Defendant’s reliance upon the application of employment could certainly be rebutted by the character of testimony indicated, and such objections could not be tenable. Whether such testimony would be sufficiently effective to prove a custom or acts to show an abandonment or disregard of rule would not militate against the materiality, as the trial court would not know how much of this character of testimony would be offered.

The plaintiff’s original pleadings in this case sought to' recover judgment against the Pecos & Northern Texas Construction Company and the Pecos & Northern Texas Railway Company. The plaintiff filed a trial amendment, stating that the Pecos & Northern Texas Railway Company, about the time of or after the injury set up in the original petition, changed its name to the Panhandle & Santa Fé Railway Company. Judgment was asked to be rendered against the Panhandle & Santa Fé Railway Company and said Construction Company in said amendment. The judgment reads that Chatten, plaintiff — •

“do have and recover of and from the Pecos & Northern Texas Construction Company, and the Panhandle & Santa Fé Railway Company (née the Pecos & Northern Texas Railway Company) defendants, the sum of $7,500, together with all costs,” etc.

Appellants say that this court should reverse and dismiss as to the railway companies, and that we can take judicial cognizance of lines of railways as public highways and the names of the companies operating them; that in July, 1914, the Panhandle & Santa FS Railway Company, under lease authorized by the Railway Commission, took over the operating part and began the operation of the trains over the lines of road owned by the Pecos & Northern Texas Railway 'Company, and have been operating said roads since said time. While the statute authorizes the Railway Commission to permit a lease under certain conditions, we are unable to take knowledge of such lease, if ever made. Appellee says that:

“The case was tried on the theory by the court ■below and both the parties that the Pecos & Northern Texas Railway Company had changed its name to that of the Panhandle & Santa Fé Railway Company, but was the same road and the same artificial person, with the same duties' and burdens.”

Appellee also quotes considerable testimony sustaining the contention as to the change of name, but says:

“The pleadings and the statement of facts dq not show by what process nor in what manner the name of the Pecos & Northern Texas Railway Company was so changed.”

We confess we are somewhat puzzled at this proceeding. How there could be a change of name we are not advised. Blackstone says:

“When the corporation is erected a name must be given to it; and by that name alone it must sue and be sued, and do all legal acts. ⅜ ⅜ * Such name is the very being of its constitution,; and, though it is the will of the King that erects the corporation, yet the name is the knot of its combination, without which it could not perform its corporate functions.” 1 Black. Com. 474. See Southern Pac. Co. v. Burns, 23 S. W. 289; Thompson on Corporations (2d Ed.) vol. 1, §§ 50-52.

Our reference to the fundamental error as assigned is simply to guard the judgment of this court to the extent that if the Panhandle & Santa Fé Railway Company is an independent corporation, leasing the properties of the Pecos & Northern Texas Railway Company, such judgment is not operative against it. The allegations in the trial amendment are merely to the effect that, as the Pecos & Northern Texas Railway Company had changed its name to the Panhandle & Santa Fé Railway Company, it is not sued as an independent corporation (if it exists as such), making it liable upon some theory under the law based upon an appropriate condition of facts, whereby it would be liable, but the suit is merely against it (whatever it is) as a change of name of the Pecos & Northern Texas Railway Company, and the judgment reading as stated.

Appellee insists that the judgment is correct, but if we think it incorrect, to reform it. We do not know whether it is correct or incorrect from this record. If the Pecos & Northern Texas Railway Company has in some manner changed its name to the Panhandle & Santa Fé Railway Company, or especially if it has gone out of existence as a corporation, in some manner, we would not think a judgment should be rendered against that company.

We think the other assignments are unnecessary to discuss, and the judgment as-prayed for and as entered will be affirmed.
      cg^oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <£=oEor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HALL, J.

license: Public Domain

text:
    SHAW v. SOUTHLAND LIFE INS. CO.

    (No. 968.)
    (Court of Civil Appeals of Texas. Amarillo.
    April 19, 1916.
    Rehearing Denied May 10, 1916.)
    1. Appeal and Error <&wkey;664(l) — Record-Conflict — Judgment—Eeoitals.
    On error to review a judgment by default against a surety, where the judgment recites that the surety filed no answer, but the transcript contains an answer marked as having been filed before rendition of judgment, the recital in the judgment is conclusive.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2856; Dec. Dig. &wkey;>664(l).]
    2. Principal and Surety <&wkey;73 — Construction op Bond — Amount op Liability — “Further.”
    Where by their bond the sureties of a life insurance company’s agent “acknowledged themselves indebted * * * in the sum of $1,000,” while there was a stipulation whereby the principal and sureties “further obligate themselves to pay any and all attorney’s fees, charges,” etc., rendered necessary by suit, such bond 'bound a surety to the extent of $1,000 and for reasonable attorney’s fees, if suit was necessary to enforce collection; “further,” as used in the bond, meaning “additional.”
    [Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 114, 115, 455; Dec. Dig. (3.
    For other definitions, see Words and Phrases, First and Second Series, Further.]
    3. Action >&wkey;50(5) — Principal and Surety <&wkey;152 — Misjoinder-oe Parties and Causes of Action.
    There was no misjoinder of parties or of causes of action, where a life insurance company sued together its agent and the sureties on his bond securing his indebtedness to the company.
    [Ed. Note. — For other cases, see Action, Cent. Dig. § 533; Dec. Dig. <S=50(5); Principal and Surety, Cent. Dig. §§ 416, 417; Dec. Dig. <&wkey;> 152; Parties, Cent. Dig. § 34.]
    Error from District Court, Dallas County; Kenneth' Foree, Judge.
    Suit by the Southland Life Insurance Company against B. A. Lamar, N. A. Shaw, and another. To review judgment by default against B. A. Lamar for the amount sued for, and against N. A. Shaw for the sum of $1,-000 and $100 attorney’s fees, N. A. Shaw brings error.
    Judgment affirmed.
    Chas. S. Todd, of Texarkana, for plaintiff1 in error. Seay & Seay, of Dallas, for defendant in error.

       Application for writ o£ error pending in Supreme Court.

   HALL, J.

Defendant in error, Southland Life Insurance Company, filed this suit against B. A. Lamar, J. D. Sanderson, and plaintiff in error, N. A. Shaw. Lamar was sued upon his promissory note for $3,559.40 ; and Sanderson and Shaw were sued as Lamar’s bondsmen on said indebtedness. It is alleged that Lamar, as principal, and Sander-son and Shaw, as sureties, executed a bond, containing, among others, the following stipulation:

“Kno*; all men by these presents that Col. B. A. Lamar, of Texarkana, Ark., as principal, and .-and-, as sureties, acknowledge themselves indebted unto the Southland Life Insurance Company, of Texas, in the sum of $1,-000, for the payment of which sum to said company, or its successors and assigns, they hereby jointly and severally bind themselves, their heirs, executors, and administrators.”

The condition of the bond, briefly stated, is that whereas, Lamar has been appointed the agent of the insurance company; and whereas, he may appoint subagents, and it is contemplated that Lamar, as principal, may become indebted to the company if Lamar shall well and faithfully perform the duties and obligations resting upon him as said agent, and promptly pay over all funds coming into his possession, as such agent, etc., the obligation shall be void; otherwise, valid. This condition is followed by the following stipulation:

“And said principal and sureties further obligate themselves to pay any and all attorney’s fees, charges, or expenses which the said South-land Life Insurance Company may incur, by reason of being compelled to sue on this bond, or place a claim under the same in the hands of an attorney for collection, and agree that, in case they shall be sued on said bond, said suit may be instituted and maintained in any court in Dallas county, Texas, having jurisdiction of the amount sued for.”

It is provided in the bond that indebtedness due from Lamar to the company may be evidenced by note, and defendant in error alleges that, the note sued upon was secured by the bond. The prayer is for general relief and that plaintiff be allowed reasonable attorney’s fees for suing upon the bond. No action was taken at the appearance term of the court, which was the April, 1914, term; but at the following term, after hearing the evidence, the court rendered a judgment against B. A. Lamar for the amount sued for, dismissed the action as to J. D. Sanders, who had not been served, and rendered judgment against plaintiff in error, Shaw, for the sum of $1,000, the amount of the bond, and $100 as attorney’s fees, providing in the judgment that execution should not be levied upon Shaw’s property unless the amount thereof could not be collected from Lamar.,

The first assignment of error is that the court erred in rendering judgment by default in favor of the plaintiff against the defendant Shaw; that a judgment by default was unwarranted and unauthorized, because defendant had, prior to the rendition of the judgment, to wit, on the 6th day of April, 1914, filed in said cause his answer in writing, duly verified, as required by law, as appears from the record herein, and that it does not appear that said answer was ever stricken or withdrawn. The recitation in the judgment on this point is that:

“N. A. Shaw, although duly cited, having failed to appear and answer in this behalf, but wholly made default.”

We find in the transcript an answer marked “Filed April 6, 1914,” but the record further shows that when the case'was called no one was present representing Shaw, nor is it shown that the answer was called to the attention of the court. This assignment presents a conflict in the record; the judgment reciting that no answer was filed, and th'e transcript showing the contrary to be the fact. We considered this question in the case of Sanger v. First National Bank, 170 S. W. 1087, and held that, where a conflict occurs in the record between the judgment and the file mark on a pleading copied into the record, the recital in the judgment is conclusive. The judgment in that case recited that the Amarillo Improvement Company had filed no answer, and the transcript, as in this case,;; showed an answer on file at the time of the: entry of the judgment. We said in that case that we must presume that the answer had been withdrawn at the time the judgment was entered, and that if the recital in the judgment was not true it was the duty of appellant to have it corrected in the trial court. No motion for new trial was filed below. No effort has been made in the instant case, by an original proceeding in the trial court, to have the recital that Shaw had failed to appear and answer corrected, but th’e appeal is from the judgment containing such recital. The Supreme Court has refused a writ of error in the Sanger-First National Bank Case, and recently overruled a motion for rehearing, without opinion, which settles the law upon that question.

The second contention is that the court erred in rendering judgment against Shaw for the sum of $1,100, because the judgment was in excess of the amount of the penalty of the bond upon which the suit'was filed, and plaintiff in error insists that the sum of $1,000 was and is the maximum limit of the liability of the said Shaw. In support of this proposition, amongst other authorities, we are referred to the case of Hill Mercantile Co. v. Rotan Grocery Co., 127 S. W. 1080. The guaranty in that ease was expressly limited to a certain sum by this language, “Not to exceed the sum of $7,000,” and contains the further stipulation:

“I, we, or either of us agree to pay the rate of interest said parties agree upon, and 10 per cent, attorney’s fees if said debt is sued upon or placed in an attorney’s hands for collection.”

Judge Key held that under the rule, requiring the contracts of guarantors to be strictly construed and all reasonable doubts resolved in their favor, and because it was distinctly stated in the first paragraph of the contract that the indebtedness should not exceed $7,-000, the liability of the guarantor, including the attorney’s fees, and interest, could not be extended beyond the. principal sum of $7,-000. The case is not an authority here, because of the stipulation whereby the principal and sureties “further obligate themselves to pay anjr and all attorney’s fees, charges,” etc. The word “further,” as used in, the bond, means additional. Galpin v. City of Chicago, 269 Ill. 27, 109 N. E. 713. We must construe the bond as a whole. Considered in this way, plaintiff in error bound himself to the extent of $1,000, and if the liability exceeded that amount, and suit should become necessary to enforce its collection, he promised to pay the additional sum of reasonable attorney’s fees. There is no uncertainty as to the terms of his obligation, and the rule announced by Judge Key in the Hill Mercantile Co. Case does not apply. The stipulation is as clear in the bond in question as is ordinarily found in promissory notes.

The remaining proposition, that there is a misjoinder of parties and causes of action, is without merit.

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


author: HENDRICKS, J.

text:
    ARANSAS PASS CHANNEL & DOCK CO. v. SOUTHERN PRODUCTS CO.
    (No. 977.)
    (Court of Civil Appeals of Texas. Amarillo.
    April 26, 1916.
    On Motion for Rehearing, May 10, 1916.)
    1. Conteacts <&wkey;202(l) — Matters Covered.
    Where a dock company and a cotton company agreed to a diversion of a cotton shipment from Port Aransas to Galveston, the dock company agreeing to accept the cotton company's claim for the difference in the transportation costs by reason of the diversion, telephone and telegraph tolls, employés’ expenses, and the cost of replacing 50 bales of cotton at Galveston, concentrated elsewhere, were not recoverable by the cotton company against the dock company.
    TEd. Note. — For other cases, see Contracts, Cent. Dig. §§ 921-928; Dec. Dig. &wkey;202(l).]
    2. Contracts <&wkey;202(l) — Matters Covered— Performance.
    Where a cotton and a dock company agreed to divert a cotton shipment from Port Aransas to Galveston, the dock company to accept the cotton company’s claim for the difference in transportation costs, the cotton company could recover of the dock company the difference between the freight rate from Portland to Port Aransas and from the same point to Galveston on 50 bales of cotton, originating in Portland, where the cotton company exercised reasonable dispatch in attending to the diversion of the cotton, the item being a difference in cost of transportation by reason of the diversion “as against Galveston sailing,” as the contract read.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 921-928; Dec. Dig. &wkey;202(l)J
    On Motion for Rehearing.
    3. Compromise and Settlement <&wkey;6(2) — Breach of Contract — Consideration.
    When a dock company broke its contract for the shipment of a cotton company’s cotton from Port Aransas by diverting the shipment to Galveston, and then solicited the diversion of the cotton company, such company 'and the dock company had the right, as part of the contract of diversion, before the agreement was concluded, to provide that the freight differential should be paid the cotton company by the dock company on account of the breach of the old contract.
    [Ed. Note.- — For other cases, see Compromise and Settlement, Cent. Dig. §§ 36-38; Dec. Dig. &wkey;6(2).]
    Appeal from District Court, Dallas County; Kenneth Foree, Judge.

      Suit by the Southern Products Company against the Aransas Pass Channel & Dock Company. From a judgment for plaintiff, defendant appeals.
    Reversed, and cause remanded.
    Denman, Franklin & McGown, of San Antonio, and Crane & Crane, of Dallas, for appellant. Seay & Seay, of Dallas, for appellee.
   HENDRICKS, J.

The appellee, Southern Products Company, a corporation, sued the appellant, the Aransas Pass Channel & Dock Company, also a corporation, alleging that the dock company agreed to ship for it 800 bales of cotton to Europe for “August sailing,” through Port Aransas, that while said cotton was on its way to Port Aransas, appellant canceled the freight which it had booked and advised appellee that it could not ship said cotton from Port Aransas, and to divert the same to the • Port at Galveston, and that appellant would pay all damages. The alleged damages ($822.70) consisted of expenses of appellee’s traveling men, of telephone and telegraph bills, difference in transportation charges, and the purchase of 50 bales of cotton at Galveston, to replace a like number, which it is alleged did not arrive in time at Galveston for August sailing from that port.

The dock company, appellant herein, was engaged in the wharfage business at Port Aransas, Tex., owning and operating docks at that place, where ships receive and unload cargoes. It had a contract with the Leyland Line, operating a steamship company, under which said Leyland Line agreed with the ■dock company to furnish ships at Aransas for transportation of freight, the sailings to be made at dates to be agreed upon. Under this contract the Leyland Line agreed with the dock company to- furnish a ship for “August sailing,” which meant that a ship would sail from Port Aransas not later than midnight of August 31, 1913.

The Southern Products Company, the ap-pellee herein, was engaged in buying and exporting cotton, and the dock company, depending on its contract with the Leyland Line, agreed with appellee to transport 800 bales of cotton, “August sailing,” to Bremen, Germany. This cotton, to be furnished by the products company, was concentrated at various interior points in Texas, and either upon the 19th or 20th of August, 1913, the products company was advised by the dock company that it could not perform its contract.

The dock company, in its answer, admitted a liability of $432.76, which comprehended the first five items alleged as damages in plaintiff’s petition, but denied, however, that it agreed that it would pay all damages on account of the breach of the contract and the diversion of the cotton, but averred that the only agreement made by it with reference -to said diversion was that appellant would pay only the difference in transportation costs by reason of such diversion to the Port of Galveston. In this shipment of 800 bales, which the products company was to transport to its customer in Germany, there were 50 bales concentrated at Portland, Tex., a point a short distance from Port Aransas. This shipment did not reach Galveston in time for an August sailing from that port and the costs of replacing the 50 bales at Galveston,' in lieu of the Portland cotton, amounting to a difference of $150.25, and the difference in rate to Galveston against Port Aransas on this particular cotton originating at Portland, and the telephone and telegraph expenses and expenses paid to employes, are the litigated items in this suit.

Tlie trial court peremptorily instructed the jury for the full amount of $822.70, and the dock company claims that the last items mentioned were not included in its contract made with appellant after the condition arose, and after it notified appellee that it could not fulfill the agreement to ship the cotton from Port Aransas.

It is claimed that a representative %f the products company went to Aransas Pass and took up the question of diverting this cotton to Galveston, for shipment from the latter point, instead of the former. At this time some of the cotton had already arrived in Port Aransas, and some of it was under bill of lading en route to that point, and the 50 bales at Portland had not been delivered to the railroad company at that point. The defense is, as to this particular feature, that as a result of the conference between this representative and the dock company, the following letter was written:

“Aransas Pass, Texas, Aug. 22, 1913.
“Southern Products Company, Dallas, Texas. —Gentlemen: This will confirm conversation had with Mr. Goudelock (the Products Company’s representative), also telegraphic correspondence and telephone conversation with Mr. Lee, relative to diversion of your cotton to Galveston for August sailmg. originally booked through Port Aransas. J0ps is done with the understanding that w&S§' to accept your claim for the difference in tStosportation costs by reason of this diversion as against Galveston sailing.
“[Signed] W. A. Scrivener, Traffic Manager.
“Cy Southern Products Co.,
San Antonio, Texas.”

Goudelock was the manager of the Southern Products Company at Oklahoma City, and a cotton buyer. Mir. Lee was the manager of tlie branch house at San Antonio, in control of the particular territory and the shipment in question. Mr. Scrivener, traffic manager of the dock company, testified positively that he had an agreement with Mr. Goudelock for the diversion of the cotton to Galveston, booked to Port Aransas, and to pay the difference in transportation costs, and that in pursuance of the agreement he first dictated a letter in Goudeloek’s presence that was not satisfactory, and the letter set out herein was dictated as the final result of their understanding. After the letter was written lie either handed' the original or the copy to Mr. Goudelock and mailed the other, either to San Antonio, or to the Dallas house of the appellee. We will not review the testimony in detail, but we think the court erred in taking this case from the jury, as to two of the items hereinafter discussed, in view of the alleged contract set up by the appellant.

If in consequence of the diversion of the cotton from Port Aransas and the reshipment of same from Galveston, instead of the former harbor, it was understood that the dock company was to accept the products company’s claim for the difference in transportation costs, by reason of said diversion, it is clear that the telephone and telegraph, and employes’ expenses, aggregating $166.66, as well as the costs of replacing the 50 bales at 'Galveston, in lieu of the 50 bales concentrated at Portland, amounting to $150.25, are not included in said contract, and to that extent there should have been no recovery against appellant.

The item of $73.03, charged against appellant as the “difference in rate to Galveston against Port Aransas,' on 50 bales originating at Portland,” is not entirely clear to the court. If the particular cotton was actually shipped to Galveston, under the agreement for diversion, for the purpose of clearing from that port for Germany, and appel-lee exercised reasonable dispatch in attending to the diversion of said cotton, and if said $73.03 really represented a difference between the freight rate from Portland to Port Aransas, and the rate from the same point of origin to Galveston, we think that item is recoverable. Said amount, in that event, would represent “the difference in transportation costs by reason of this diversion as against Galveston sailing.”

If it is appellant’s contention that the difference. in transportation costs is confined to that difference arising only on account of such costs or freight having been actually paid, and only on cotton actua!A¡|.shipped to Port Aransas, and reshipped;^fCTGalveston, the contract does not so read, miffed by the facts in this record. Appellant’s contract originally was to ship from Port Aransas, and it necessarily knew that the freight rate from the point of concentration to Aransas Pass entered into the shipment by appellee from Aransas to the consignee at Bremen, Germany; and if the $73.03 item is one representing the difference and excess in freight from the point of concentration to Galveston, and from the same point to Port Aransas, such an item is a difference in cost of transportation by reason of the diversion “as against Galveston sailing,” and should be so interpreted.

We overrule the other assignments, and reverse and remand the cause.

On Motion for Rehearing.

In the motion for rehearing, the questions of the authority of Goudelock to make the contract discussed in the main opinion, and of nudum pactum, are raised.

It is not shown in this record where the principal place of business of the products company was located. The record suggests a Dallas house, a San Antonio branch, and an Oklahoma ICJity house. Goudelock, with whom the alleged contract was made, was the manager of the Oklahoma house for the appellee products company, and made the contract with the dock company for the transportation of the 800 bales of cotton from Port Aransas to Germany. He testified that he accidentally heard of the withdrawal of the shipment from Aransas Pass, and then went to Corpus Christi, and from thence to Aran-sas Pass; but from the testimony of Lee it is inferable that he was sent to Aransas by the company to attend to the trouble. It is also inferable from the record that the Dallas and San Antonio houses participated in the matter of the diversion.

On August 21st, a telegram was sent to the Southern Products Company at San Antonio, Tex., as follows:

“Scrivener & Clark instruct us to divert your Bremen cotton to Galveston, stating that they will take care of the differential between Port Aransas and Galveston.”

The Southern Products Company at Dallas, Tex., telegraphed to the dock company that-their insurance policy did not cover risk on transshipments by water from Port Aransas Pass to Galveston, advising the dock company that they must provide for extra insurance, which latter company answered, conceding the suggestion. Whether this telegram was sent prior or subsequent to the writing of the letter by Scrivener, the manager of the dock company, copied in the original opinion, embodying the agreement upon which the case was reversed is not shown. This letter explicitly stated that “this will confirm conversation to-day with Mr. Goudelock,” etc., and relative to the diversion, closes, “this is done with the understanding that we are to accept your claim for the difference in transportation costs,” etc.

It is argued that the contract between the dock company and the products company had been breached, and, the damages having accrued, an agreement for a less sum than the amount appellee would in law have been entitled to, would be the payment of a smaller sum for a larger amount, and hence without consideration.

The dock company, in law, was not required to transship the particular cotton from Galveston. It was outside the contract. It was, of course, when the original contract was breached, subject to the payment of all consequential damages on account of said breach. When they solicited the diversion of this cotton and the same was accepted by the products company for the purpose of reshipment from Galveston, the parties had the: right as a part of the contract of diversion, before said agreement was actually concluded, to provide for and measure 'the character and quantum of damages to he paid on account. of the breach of the old contract.

We think, as applied to the particular items discussed in the main opinion, the case as to those features at least should have gone to the jury, and the motion for rehearing is overruled.
      &wkey;sFor other cases see same topic and KEY-NUMBER m all Key-Numbered Digests and Indexes


author: CONNER, C. J.

text:
    FT. WORTH & D. C. RY. CO. v. HOUSTON.
    (No. 8359.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    April 8, 1916.
    On Motion for Rehearing, May 13, 1916.)
    1. Railboads <&wkey;312(l) — Operation — Injuries to Persons' — Negligence.
    Where a locomotive in question approached a public crossing at dusk, unlighted, and without noise, and without giving any warning, the employés of the railroad were guilty of negligence in so doing.
    fEd. Note. — For other cases, see Railroads, Cent. Dig. § 988; Dec. Dig. &wkey;312(l).]
    2. Railroads <&wkey;350(13) — Duties to Pedestrians at Crossings — Contributory Negligence.
    Evidence that plaintiff approached a railroad crossing at about dark, and left the public highway a few feet from the track, and looked in front of her, but not behind her, and was struck by a locomotive as she was stepping off the track, which locomotive had given no signal and bore no light, and was proceeding at a slow speed, and noiselessly, is insufficient, as a matter of law, to establish contributory negligence.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 1166; Dec. Dig. &wkey;350(13).]
    3. Railroads &wkey;>350(33) — Operation—Injuries to Pedestrians1 — Contributory Negligence — Last Clear Chance.
    Such evidence, coupled with the statement of the fireman that he saw the plaintiff approach and gave no warning, and that the locomotive could have been stopped within 12 feet, does not, as a matter of law, justify the court in saying that the railroad did not discover the plaintiff’s danger in time to have avoided the injury.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 1191; Dec. Dig. <&wkey;>350(33).]
    4. Negligence <&wkey;136(26) — Actions — Defenses — Contributory Negligence.
    Contributory negligence is generally a mixed question of law and fact, and must be submitted to the jury if the evidence is such that reasonable minds may differ.
    [Ed. Note. — For other eases, see Negligence, Cent. Dig. §§ 286, 333; Dec. Dig. &wkey;>136(26).]
    5. Railroads <&wkey;346(5) — Operation — Injuries to Pedestrians — Contributory Negligence-Burden of Proof.
    The burden of proving alleged contributory negligence on the part of a pedestrian struck by defendant railroad’s locomotive is upon the railroad.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 1121; Dee. Dig. <&wkey;346(5).]
    6. Railroads <&wkey;350(33) — Operation—Injuries to Pedestrians — Contributory Negligence-Last Clear Chance.
    Evidence in a pedestrian’s action for injuries by being struck by a locomotive near a public crossing held to raise the issue of discovered peril.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 1191 ; Dec. Dig. <&wkey;350(33).]
    Appeal from District Court,'Wichita County ; E. W. Nicholson, Judge.
    Action by Hettie Houston against the Ft. Worth & Denver City Railway Company. Judgment for plaintiff; and llefendant appeals.
    Affirmed.
    Thompson & Barwise, of Ft. Worth, and Carrigan, Montgomery & Britain and F. S. Jones, all of Wichita Falls, for appellant. Bonner & Bonner, of Wichita Falls (Wm. N. Bonner, A. A. Hughes, and J. R. Ogle, all of Wichita Falls, of counsel), for appellee.
   CONNER, C. J.

Appellee, Hettie Houston, instituted this suit for damages in the sum of $5,000 for personal injuries received by her in a collision with one of appellant’s locomotives. She alleged that while attempting to cross appellant’s railway track near a public crossing in the city of Wichita Falls, appellant’s servants and employés operating a locomotive engine suddenly and silently approached while it was dark, without blowing the whistle or ringing the bell, and without having the engine lighted so as to give warning of its approach. She further alleged that after her approach to the crossing was discovered and that she was in imminent danger said employés were guilty of negligence in failing to exercise care to warn her of the approaching engine.

The defendant denied the allegations of negligence charged, and specially pleaded that the track upon which the locomotive was being operated at the time was a switch track in constant use, of which the plaintiff knew, and that she approached and attempted to cross the railway track without stopping, looking, or listening for approaching cars or engines, and in so failing was guilty of contributory negligence.

The issues so presented by the pleadings were submitted to a jury, who returned a verdict in favor of the plaintiff, and assessed her damages in the sum of $300, and the defendant has appealed.

Appellant’s insistence is that the evidence did not authorize the submission of the issue of discovered peril, and that under the evidence plaintiff was guilty of contributory negligence as a matter of law, and that hence the court should have given the peremptory instruction to find for appellant, as was requested. These subjects are so closely interwoven that they will be disposed of in a general way together. The evidence tends to show that the plaintiff started from some houses, where presumably she was employed, in the northern part of appellant’s switch-yards in the town of Wichita Falls. On the •occasion in question she proceeded to a well-defined pathway, used by both wagons and pedestrians, that threaded its way in a southerly direction to the crossing where the accident occurred over and between several switch tracks. The plaintiff proceeded along this pathway, which was some 15 or 20 feet from the roadbed, until she arrived at the Park street crossing .of appellant’s track, when dhe turned to the right to cross the railway track in a continuation of her journey to her destination at a point south of Park street. The general direction in which she was traveling may be said to be southwesterly. She’ was entirely clear of the tracks and out of danger until she altered her course to cross the railway track, as stated. There was some evidence that at this time it was daylight, but other evidence in behalf of plaintiff was to the effect that it was dark or “dusk dark.” The engine, as there is evidence tending to show, approached the same crossing behind the plaintiff. The engine had no lights burning, and, while the engineer and fireman both testified that the bell was rung, other testimony was clearly to the effect that neither was the bell rung, nor was the whistle blown, nor any other warning given of the approaching engine. Plaintiff’s testimony was to the effect that the engine approached at the rate of about 6 miles per hour, and silently; that as she approached the crossing she listened, but does not remember whether she looked behind her to see whether an engine or ears were approaching, although she admitted that she knew that the tracks were constantly used for switching. She was struck by the beam of the cow catcher just as she stepped upon the track, thrown aside, and injured as alleged in her petition.

The fireman testified that he was on the left-hand side of the engine; that he could and did see the plaintiff as she proceeded along the track; that he had his eye on her all the time. He admitted that he did not call to the engineer, who was on the right-hand side of the engine cab, and who, as there is testimony tending to show, was out of view of the plaintiff. The fireman testified that he rang the bell; that he cried out for the plaintiff to stop; but that she paid no heed to him. I-Ie explained his failure to warn the engineer to stop the engine on the ground that there was not time. The engineer testified that at the rate of speed they were going the engine could have been stopped within 12 feet. He further testified that a switchman was also along, and, as he thought, seated on the front of the engine.

Assuming, as it is our duty to do after the verdict in plaintiff’s favor, that the locomotive in question was allowed to approach the public crossing while it was dark, or dusk dark, unlighted, and without noise, and without ringing the bell or blowing the whistle, and without giving any other warning, it must be conceded that appellant’s servants and employes were guilty of negligence in so operating the locomotive, and after a careful consideration of the evidence we feel unable to say that, as a matter of law, the plaintiff was guilty of contributory negligence, or that, as a matter of law, it must be said that appellant’s employés did' not discover appellee’s danger in time to-have avoided the injury that followed. It seems so well settled that it is hardly worth while to cite authorities in support of the-proposition that the question of contributory negligence is generally a mixed question of law and fact. If the evidence is such as that reasonable minds may differ as to the conclusion to be drawn therefrom, it is the duty of the court to submit the issue to the jury,, and it is to be remembered that the evidence does not quite show that the plaintiff failed to “look” behind her just before attempting to cross. She was thrown on her head, and the jury may have possibly inferred that she did look, but had forgotten this detail of the accident, or they may have possibly inferred that, had she looked, it would have been unavailing because of the darkness, notwithstanding other evidence plainly indicated that she could have seen the approaching locomotive had she turned and. looked behind her. The plaintiff did testify, as stated, that she saw no light, and that, had the engine been lighted, she certainly would have seen its reflection before it. She-evidently, therefore, looked forward, and she specifically stated that she saw no light, that she listened, and that no warning signal was-given. It is also to be remembered that the burden of proof upon this issue was upon the defendant, and the evidence is silent as to the location of the locomotive prior to its near approach to the crossing in question. It may have been that as the plaintiff left the houses in which she was presumably employed, as stated, in the northern part of the switchyards, and which were situated on the south side of Mill street one block from Park street, that the engine was not in sight or hearing, and that as she walked up the pathway and covered the short distance intervening between the points named she had no reason to suspect the approach of an engine from the north, and it cannot be said that the evidence excludes such an inference, or that such an inference is unreasonable; so that, as we think, the jury may have concluded that under all of the circumstances it should not be said that the plaintiff was guilty of contributory negligence.

Nor do we think it must be said that the evidence failed to raise the issue of discovered peril. The evidence authorizes the inference that the plaintiff was at least 15 feet from the railway track when she changed her direction, and when, if the fireman was looking at her, he must have observed that she was in peril; had he then given a single tap of the bell, it might have arrested the further progress of the plaintiff and all injury been avoided. It further appears that the locomotive was 10 feet from the plaintiff as she stepped upon the track. Had the fireman at that moment have instantly cried out to the engineer, the engineer might have -acted upon the warning in time to have at ¡least so retarded the progress of the engine ;as that the plaintiff might have stepped forward or backward out of danger. But few seconds of time would have been necessary to •so do, or, had the switchman, who was on the pilot of the engine, as the jury had the right to infer from the evidence, have given proper warning, it might have been sufficient. So that, as stated, we feel unwilling to say that the court erred in submitting the issue of discovered peril to the jury, or even ¡that the jury would not have been authorized to find that there was a failure on the part of appellant’s employés to exercise that high degree of care that the law, in the interest of human life, imposed upon them to avoid running the plaintiff down.

Other criticisms of the court’s charge are ■made, but the charge, when considered as a whole, together with special charges given at appellant’s request, we think, sufficiently and fairly presented the material issues to the .jury.

All assignments of error are accordingly overruled, and the judgment is affirmed.

On Motion for Rehearing.

In deference to the very earnest motion for a rehearing we have again considered the evidence in this case, but, after having ■done so, we conclude that there is no material error in our original conclusions. It cannot be said that the plaintiff wholly failed to exercise care for her own safety. It is evident that it took but a few moments to walk the one block intervening between the plaintiff’s starting point and the crossing where struck, and, while at starting the ■switch crew may have been in the north part of the yards, as appellant urges, nothing in the evidence shows that the plaintiff’s attention was called to the location of the engine and crew and that they had started or were about to start in her direction. This being true, and the engine having approached silently and without light or warning of any kind, and plaintiff having “looked” forward at least, and having “listened,” as she testified, we can hardly say that the issue of ■contributory negligence was not for the jury. The case is not clearly one where the plaintiff is affirmatively shown to have been guilty of an entire want of care for her own safety, as appears in some of the cases cited by appellant. See Railway Co. v. Kendall, 78 S. W. 1081.

But, if it be assumed that plaintiff was guilty of contributory negligence, there yet remains the finding, as we must impute to the verdict, that the operatives were guilty •of a want of due care after discovery of plaintiff’s peril. The fireman testified that he did not have time to warn the engineer to stop after plaintiff got on the track. This ■may have been true, but he did not testify that he could not have sounded the bell, nor did the switchman testify at all, though the testimony of the engineer authorizes the inference that he was on the very front of the engine. Moreover, the fireman testified that he kept looking at the plaintiff all the time. Why so? He must have thought, in view of the direction of the path upon which plaintiff was traveling and the proximate location of the public crossing, that the plaintiff might undertake to cross the track. At any rate, he kept looking at her, and when she turned to the right and kept going directly toward the crossing without looking back the fireman must have then, at least, anticipated the plaintiff’s danger. At the moment of so turning she was 15 or 20 feet from the railway track, as the jury was authorized to conclude; for, contrary to appellant’s contention, the plaintiff testified that:

The path upon which she was traveling “was 10, 15, or 20 feet from the track on the left-hand side. * * * When I started to cross the track, I was in the path parallel to the railroad track. * * * I turned to the fight and started towards the track. This path leads closer to the track when you get to the crossing. It is about 10 feet.”

We still think that the evidence most favorable to the plaintiff authorized the conclusion of the jury that the plaintiff’s injury could probably have been avoided by an exercise of due care after her peril was discovered.

Nor, as we conceive, are we in conflict with the case of M., K. & T. Ry. Co. of Texas v. Eyer, 96 Tex. 72, 70 S. W. 529. The charge condemned in that ease authorized a recovery without a finding that the negligence alleged was the proximate cause of the injuries shown. But no such objection was urged to the fourth paragraph of the court’s charge in this case, nor is the charge subject to such objection. The complaint here was one of omission merely.

We conclude that the motion for rehearing must be overruled.
      <&wkey;>For other oases see same topic and KEY-NUMBER-in all Key-Numbered Digests and Indexes


author: HUFF, C. J.

text:
    BOWMAN et al. v. STARK et al.
    (No. 966.)

    (Court of Civil Appeals of Texas. Amarillo.
    April 19, 1916.
    Rehearing Denied May 10, 1916.)
    1. Homestead <§=»216 — Trust Deeds — Property Subject — Business Homestead — “Auxiliary” — Findings of Jury —Con-stbuction.
    A finding that an uptown office of wholesale grain dealers was used as an auxiliary to and in connection with the plant which they claimed exempt from "a trust deed as their business homestead, is not inconsistent with a finding that the uptown office was their principal place of business as wholesale grain dealers; “auxiliary” meaning simply to confer aid or help.
    [Ed. Note. — For other eases, see Homestead, Cent. Dig. §§ 400-403; Dec. Dig. ⅞⅛3216.]
    2. Homestead @=»36 — Business Homestead.
    The essentials of a business homestead to exempt it from the lien of a trust1 deed of the owner’s property are that the owner shall be the head of a family and have a calling or business to which the place is adapted and reasonably necessary.
    [Ed. Note. — Eor other cases, see Homestead, Gent. Dig. § 56; Dec. Dig. <@=>36.]
    3. Homestead <@=>216 — Business Homestead —Findings oe Juey — Eeeeot.
    Where the findings of the jury import that the place of business claimed exempt as a business homestead from the lien of a trust deed is not used as the principal business, but only as an incident thereto, the holder of the trust deed is entitled to a judgment on the findings foreclosing the mortgage lien.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 400-403; Dec. Dig. <§=3216.]
    4. Homestead <@=>216 — Business Homestead —Election.
    While the owner of a business may have the right to elect, if he is engaged in two businesses, which he will hold as his business homestead, a finding of the jury that his principal place of business was one and not the other, shows an election.
    [Ed. Note. — For other cases, see Homestead, Gent. Dig. §§ 400-403; Dec. Dig. <@=>216.]
    Appeal from District Court, Collin County; C. F. Spencer, Judge.
    Suit to restrain sale of property under power of a deed of trust by J. T. Stark and another, composing the copartnership of the Stark Grain Company, against G. W. Bowman and another, in which defendants filed a cross-petition for foreclosure of the trust deed. From the judgment rendered, defendants appeal.
    Reversed and remanded, with instructions.
    W. R. Abernathy, of McKinney, for appellants. Wallace Hughston and G. R. Smith, both of McKinney, for appellees.

      Application for writ of error pending in Supreme Court.

   HUFF, C. J.

J. T. Stark and D. B. Stark, members of the copartnership of Stark Grain Company, instituted this suit against the Piano National Bank of Plano, Tex., and G. W. Bowman, trustee, in certain deeds of trust and chattel mortgages given by the Stark Grain Company and J. T. Stark, and L. B. Stark, setting up that certain property, described in the two deeds of trust, was the business homestead of J. T. and L. B. Stark, and that the bank and Bowman, as trustee, were about to sell the same under the powers of the deed of trust, and sought an injunction to restrain the sale of the property.

The appellees, plaintiffs below, allege that they were engaged in the business of cleaning, clipping, scouring, shelling, grinding and storing grain for hire, and that the property described in paragraph 2 of the petition constituted the business homestead and workshop and that appellees were each heads of families living in the town of Plano, alleging other facts necessary to constitute the property their business homestead.

The appellants, as defendants below, denied that this was the business homestead of the appellees at the time of the execution of the deed of trust, or either of them, or since said time; also claiming that this property was partnership property of the Starks, ■which consisted of other members than the appellees; that if the appellees were entitled to a business homestead that the same was located in the town of Plano and at an uptown office of the Stark Grain Company, and D. B. and J. T. Stark, and that such uptown office constituted their business homestead, and that they were engaged in the wholesale grain business. They also filed a cross-petition asking to foreclose the mortgage or deed of trust liens against the property in question, together -with other property, which indebtedness amounted to $21,096.45.

The case was tried before a jury, and upon special issues submitted to the jury. Upon the findings of the jury, the trial court, together with certain other findings filed by the court, rendered judgment foreclosing the lien on certain other property and establishing a debt of several thousand dollars against the Stark Grain Company, and the appellees, and another member of the partnership.

The appellants herein asked a specially requested charge of the trial court to the effect that they find that the property in question was not the business homestead of appellees, and also made a motion that the trial court render a judgment in favor of the appellants against appellees, foreclosing the lien on the property in question. The court overruled the requested charge and motion and rendered judgment to the effect that the property was not subject to the mortgage lien.

On the 22d day of June, 1910, the Stark Grain Company, J. T. Stark, and L. B. Stark executed a mortgage and deed of trust on the property in question together with other property and that in 1912 they also executed another mortgage and deed of trust to secure other indebtedness upon the same property. These instruments were signed by the appel-lees, and at the time of executing the mortgages, neither of the Starks represented or claimed to the appellants that the property in question was their business homestead. The property in question is situated on what is known as the St. Louis & Southwestern Railway reservation in the town of Plano, and on the north side of the track, or right of way, which is designated in this record as the Cotton Belt.

J. T. Stark is the father of L. B. Stark, and both resided in the town of Plano at the time of the execution of the mortgages, each having a residence and each being the head of a family. The lots upon which their business and residences were situated and the leasehold from the railroad, without improvements on the property, were worth less than $5,000, at the time of placing the improvements thereon, or since said time. Each of the appellees were and are heads of families and resided in their respective residences in the town of Plano. J. T. Stark, since 1894, has been using part of the reservation or plot of land in question for the purpose of handling grain, having thereon a warehouse and machinery necessary for treating grain in course of transportation.

In 1906 the Stark Grain Company erected the principal part of the plant that is now situated on this plot of ground. Prior to and up to 1908, the J. T. Stark Grain Company was a corporation, hut it went into voluntary liquidation, and J. T. Stark purchased the property of the corporation, since which time it has been run as a partnership under the name of the Stark Grain Company, composed of the father, J. T. Stark, and his son, L. B. Stark, and another son, who died after the institution of this suit, and a younger son, who became a member of the partnership about a year before the suit. Mr. Stark says that he gave each of his sons, as they became of age, an interest in the business.

The appellees testified that they were in the grain and elevator business, which consisted in cleaning, scouring, clipping, storing, and mixing wheat and oats, shelling, grinding, and storing corn on the property in question. There is located on the plot of ground a steel elevator, which was called the head house, containing the machinery necessary to do the work and some small bins for storage in that building. There are six steel storage tanks, connected by conveyers to the main house; also a power house, which is a brick building, consisting of three rooms, in which rooms a boiler and engine and fuel are placed, and other necessary machinery and equipment. There is also what is known as the corn sheller house, which has two com shel-lers, and other machinery necessary to clean the corn, scales for weighing, etc. They have also what is termed the comcrib house, where corn was placed before it was shelled and was connected with the sheller by machinery. They also have on this ground a warehouse, which seems to be used as a general storehouse for storing grain or machinery and other things when necessary.

The testimony of the appellees is that they claim this plot of ground, together with the improvements thereon, as their business homestead, and did so at the time the mortgages were executed, but admit they did not tell the appellants that they were so claiming it. The material out of which the several business houses were, constructed, the kind, class, power, and use of the machinery and its several parts, are given in detail and the manner in which it is fastened to the groimd is described as being by iron, brick, wood, and concrete.

The appellees’ testimony shows that they clipped and cleaned their own grain, and also for the public, giving the scale of prices, and show also that they did nothing at the plant above mentioned besides cleaning, storing, and clipping grain.

The evidence in this case shows that the appellees and the Stark Grain Company maintained an office in the business portion of the town of Plano. This office is about half a mile from their plant, and that there was a private telephone wire between the office and the plant. At the office the company had about $1,500 worth of office furniture, consisting of telephone, typewriters, and other necessary office fixtures for a modern office. Each of the appellees, J. T. and L. B. Stark, maintained a desk in this office. They also had employed for 8 or 9 years a stenographer at this office. Prom this office they did their correspondence, made their contracts, sent their telegrams, made their communications to various points by phone, kept their books, drew their drafts, and paid checks and drafts, and bought grain. The evidence also shows that they were extensive dealers in grain, buying and selling; that their grain purchases amounted from $750,000 to over $1,000,000 a year; that about 50 per cent, of the grain purchased by them was from wagons and farmers at Plano, while the other portion of their purchases was carload lots from various portions of North Texas, some in the Panhandle, in Oklahoma and Kansas City, and other cities; that 90 per cent, of the grain purchased by carload lots was shipped to Plano for cleaning and improving for resale. These purchases made by them were made by wire, by letters in person, and by telephone communication. In addition to maintaining the plant on the plot of ground above mentioned in Plano, they maintained a warehouse at that place, on the Houston & Texas Central Railway, which appears to have been the first building used by the company when it first started in business. They also possessed and maintained an elevator in the town of Allen, in Collin county, for the purpose of storing and cleaning grain, and the testimony also shows that they had leased and rented elevators in several other towns and places, at which they placed buyers to purchase grain. The testimony also shows that they purchased futures on the Chicago Exchange, as they say, for the purpose of hedging on their contracts to deliver grain. The evidence also shows that J. T. Stark, while claiming to one of the bank officials that he had made $10,000 just previous to the time the bank sought to foreclose the mortgages, when pressed for payment, stated that he had also lost $4,000 on the Exchange.

The testimony shows that the property situated upon this plot of ground was of greater value than all the other property of which the appellees were possessed. The evidence shows that the object of keeping the town office was for the purpose of doing their clerical work, but the principal purpose was for the convenience of the appellees and that of its customers. The evidence shows that this office or place where the office is situated has been actually occupied by the Stark Grain Company for more than 16 years, lit is shown that on the office a sign was painted, “Stark Grain Company, Wholesale Grain.”

It is shown by appellees’ testimony that the idea of cleaning and clipping grain, etc., through the elevator after it was purchased, was to improve it so that it could be sold for a higher price and make it better.

J. T. Stark says:

“The difference wliat we bought it at, less our expense of running it through the elevator, and what we sold for would be profit. It was put through the elevator to make it more merchantable and worth more money and sell for more than it would in the natural state.”

It was shown also that J. T. Stark had an insurance business which he maintained at this office, but the principal purpose of this agency was to write insurance on the company’s property, and that when he did so, the 15 per cent, commission which he was entitled to went to the company. If he wrote insurance for others than the company, which he says was not often, that he himself got the 15 per cent.

The process of cleaning, etc., necessary to the elevator business, was largely done oy machinery, but in order to carry on the work, they maintained a foreman of the plant, and men from one to twenty. The foreman had the supervision of the work, and J. T. Stark says he superintended the foreman.

The evidence shows that the appellees visited the plant during the season from meir office from once to three times a day. The testimony shows that there was no written lease from the railroad company introduced in evidence, but there was one in existence which J. T. Stark says was practically perpetual, or that they had the right to make it perpetual. However, by his testimony he admits at the termination of the lease that he could be required to move the property situated thereon within 30 days. The terms of the lease further than the above do not appear to have been given. The uptown office was a rented place — rented by the month.

The special issues submitted to the jury, together with their findings thereon, are as-follows:

“How much docs the partnership of the Stark Grain Company owe the Plano National Bank, as shown by notes and acceptances introduced in evidence? Answer: $21,096.45.
“(2) What are the dates of the two deeds of trust introduced in evidence? Answer: June 22, 1910. October 5, 1912.
“(3) In what business were the plaintiffs engaged at the time of the execution of the deeds of trust herein sued on? Answer: Wholesale grain dealers, also storing and improving grain.
“(4) What was the principal business in which the plaintiffs were engaged at the time of the execution of the deeds of trust sued on? Answer: Wholesale grain business, storing, improving grain for profit.
“(5) The evidence shows that J. T. Stark, one of the plaintiffs herein, was the agent of several insurance companies, and you are asked to say whether or not such business of writing insurance was for the purpose of writing their own insurance or for the purpose of doing a general insurance business. Answer: For the purpose of writing their own insurance.
“(6) What was the purpose of the plaintiffs in maintaining an office in the town of Plano-away from and apart from the elevator plant? Answer: For the convenience of the Stark Grain, Company, and the public .in general.
“(7) For what purpose was the elevator plant and other appliances, houses, etc., used by the plaintiffs? Answer: For the purpose of storing and improving grain for profit.
“(8) Was the office uptown in Plano used as an auxiliary to and in connection with the plant, or was it used independently of the plant? Answer: It was used as an auxiliary to and in connection with the plant.
“(9) About how often would the plaintiffs, or either o'f them, visit the elevator plant daily from the uptown office during the grain season? Answer: From one to three times a day.
“(10) Could the plaintiffs better transact their business by maintaining an uptown office away from the plant, or not? Answer: Xes.
“(11) How and in what manner did the plaintiffs handle the grain; i. e., what did they do-with such grain as they bought? Answer: They bought grain wholesale and retail lots, stored: and improved for the market.
“(12) I-Iow long had the uptown office been maintained by the plaintiffs, or either of them? Answer: About 16 years!
“(13) How long had the plaintiffs, or either of them, held the lease on the lot on which the-elevator plant is maintained? Answer: About 21 years.
“(14) When were the buildings and appliances-placed thereon, i. e., on the land leased by the plaintiffs, or either of them? Answer: About 1894 to 1906.
“(15) In what way is the machinery and buildings attached to the land on which the-plant is situated? Answer: Is attached to land: by brick, concrete, and wood.”

In answer to special issues requested by-appellants the jury found:

“Special Issue (a): Where was plaintiffs and the Stark Grain Company’s place-.of business? Answer: At his office.
“Special Issue (b): What did the Stark Grain-Company and plaintiffs use the property claimed by them as a business homestead for? Answer: For storing and improving grain.
“Special Issue (c): Was the use to which, plaintiffs and the Stark Grain Company, put said property claimed by them as a business-homestead their real business or merely incident to their real business? Answer: A part of their business.”

In answer to the requested special issue by appellant: “Where was plaintiffs’ and the Stark Grain Company’s place of business? Answer: At his office” — this answer was definite and distinct. The appel-lees claim the elevator and the other property, situated on the railroad right of way, as exempt. It has been held by the Supreme Court that the Constitution exempts one-place where the business of the head of the family is transacted. If the jury had intended to find that the elevator was the place of business it occurs to us they would have-said so. It is suggested by the appellees that the jury intended to find, or that the-finding is susceptible of the. interpretation, that the office named was that situated in the elevator. The answers of the jury to the preceding issues negatived any snch purpose; and when the entire record of the evidence and the pleadings is examined, it is conclusive to our mind they had no such purpose. They answered that the business of the ap-pellee was wholesale grain dealers, also storing and improving grain, and this was their principal business, which they were following for profit at the time the deeds of trust were executed. They state in answer to issue 8 that the office was used as an auxiliary to and in connection with the plant. They find that the appellees visited the plant from one to three times a day, that they could better transact the business by maintaining the uptown office, and as they bought grain they stored and improved it for market, and that they had maintained this office for 16 years. From all the answers it is evident to our minds they found this office, which had been maintained for 16 years, was the place of ap-pellee’s business. Perhaps the only ambiguity in their answer is to the eighth issue, in which they answer it was used as an auxiliary to and in connection with the plant. The finding that it was used in connection with the plant is not repugnant to the idea that the office was the owner’s place of business, nor is it inconsistent with the fact that the office was the place of business. Auxiliary simply means conferring aid or help. The aid or help conferred in this instance was upon the plant, and not upon the business of buying grain, storing and improving grain for profit. The office was the business place. It will be noted the testimony of the appel-lees sought to show the business they were in was the “grain and elevator business, which consisted of cleaning and scouring, clipping, and storing and mixing wheat and oats; shelling, grinding, and storing corn.” While on the other hand appellants sought to show appellees were engaged in the wholesale grain business, buying grain and improving it for the market, and to derive thereby a profit upon resale as well as a profit upon the bargain: The jury did not find the office was auxiliary to the elevator business, but only that it was a help to the plant. The jury, it occurs to us, were careful to find that the business was “wholesale dealers, storing and improving grain for profit.” This business had a place, and that place was the office they had theretofore been talking about. The jury found that in answer to the issues (b) and (c), requested by appellants, that storing and improving grain was “a part of their business”; it was not the whole. The whole had a place where the heads of the families, composing a part of the Arm of Stark Grain Company, exercised their calling and business. For 16 years they had so exercised that business at the same place—the office.

The two requisites essential, as stated by our Supreme Court, were found by the jury: First, the head of the family must have a calling or business to which the place is adapted and reasonably necessary. The appellees were wholesale dealers in grain, storing and improving grain; second, the appellee’s place of business was the office. Storing and improving grain was not their business, but only a part of the business. The office was adapted and reasonably necessary to buy grain over Texas, Oklahoma, in Kansas City and other cities, as well as to' superintend the cleaning and storing of grain so purchased. It was necessary to have the office situated in a business portion of the town for the company’s convenience and that of the public. The findings of the jury negatived that the elevator property was used as the place of business by the appellee, and that their business consisted alone of cleaning and storing grain. The findings also negative the idea that it was adapted to the purpose of the business of wholesale dealers, etc.; as a place for such business it was not adapted or reasonably necessary.

The verdict of the jury amounts to the finding that the appellees had not established their allegation that the property in question was the business homestead,, and for that reason the deeds of trust void. We believe the trial court should have sustained the appellants’ motion for a judgment on the findings of the jury, and foreclosed the mortgage lien on the property. McDonald v. Campbell, 57 Tex. 614; Rock Island Plow Co. v. Alten, 102 Tex. 366, 116 S. W. 1114; Pfeiffer v. McNatt, 74 Tex. 640, 12 S. W. 821; Shryock & Rowland v. Latimer, 57 Tex. 674; Hinzie v. Moody, 1 Tex. Civ. App. 26, 20 S. W. 769; Harrington v. Mayo, 130 S. W. 651.

It is urged by the appellees if they were engaged in more than one business at different places they had the right to elect which place should be exempt to them as a business homestead. This may be conceded to be a correct proposition. They, however, can have but one place, and, the jury having found that the office was that place, have shown by their verdict and finding that the appellees have made their election.

There are a number of other assignments which we deem it unnecessary to discuss under the disposition we make of this case. As to the findings of the trial judge, which in some measure we believe conflict with the findings of the jury, we will not at this time discuss. We believe the motion of the appellants for judgment on the verdict, as rendered, and under the undisputed facts, should have been granted. The case will therefore be reversed, with the instruction that judgments be rendered, foreclosing the mortgage lien upon the property in question; and as to the receivership and orders therein, the court will make such orders therein as shall be just, right, and equitable in the premises.

Reversed and remanded, with instructions.
      <gssPor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <@=>For other oases see same topic and KEY-NUMBER m all Key-Numbered Digests and Indexes