author: HIGGINS, Justice.

text:
    TEXAS INDEMNITY INS. CO. v. WILLIAMSON.
    No. 2803.
    Court of Civil Appeals of Texas. El Paso.
    March 16, 1933.
    Rehearing Denied April 27, 1933.
    Don Emery, T. L. Dyer, and R. K. Batten, all of Amarillo, for appellant.
    Byron Skelton and Winbourn Pearce, both of Temple, and Jim Evetts, of Belton, for appellee.
   HIGGINS, Justice.

Appellee, Williamson, was an employee of the Phillips Petroleum Company. On December 5, 1930, he filed claim for compensation with the Industrial Accident Board for an injury to his back, spine, etc., alleged to have been sustained in the course of his employment on July 29, 1929. His claim was by the board denied because of his failure to file the same with the board in six months after the injury and good cause not being shown, excusing such failure.

This suit was later filed by appellee to set aside the ruling of the board, resulting in judgment in his favor as for total and permanent incapacity.

A claimant for compensation, who fails to file his claim with the board within six months after injury, must show good cause for such failure, not merely for the! six months’ period, but up to the date the claim is actually filed. Holloway v. Texas, etc. (Tex. Com. App.) 40 S.W.(2d) 75; New Amsterdam Casualty Co. v. Scott (Tex. Civ. App.) 54 S.W.(2d) 175.

In this case sixteen months and five days elapsed between the date of injury and the filing of the claim with the board.

Plaintiff testified on direct examination, when asked why he did not file a claim with the Industrial Accident Board within six months after the date of his injury: “I never knew that it was absolutely necessary to file a claim with the Board.” He further testified that he had had dealings with the insurance company on two occasions prior to his back injury, and that for the injury received to his leg in February, 1929, he personally did not make claim before the board, but as to the first injury he did sign some papers. He further testified that after his injury , to his leg in February a Judge Routh came to see him in the hospital, and told him: “ ‘Art, you go out fishing and hunting and forget about your expenses and all your troubles for thirty days and then come back to Breckenridge.’ Nothing was said about settlement there. Later on when I got back to Breckenridge Mr. O’Brien asked me if I had received compensation and I told him ‘no’ and he said, ‘Come around to the office,’ and I went around to the office and received compensation.” On cross-examination plaintiff testified that his compensation for his injury to his leg was paid by the insurance company within the six-month period after his injury. Plaintiff further testified on direct examination: “After I went to the hospital for the bac-k injury no one came to see me and to discuss a settlement of compensation. Mr. A. R. O’Brien came to see me along in November, 1929, and we talked over matters not pertaining to the injury, and later on he asked me if it was rheumatic trouble that was causing me all the trouble and I ■told him the doctors all said that it was caused from an injury, and we stopped talking about that then. He then told me that the oil business was in bad shape and there wasn’t much doing and that I wouldn’t miss much by being sick or knocked out for the next six months, and he said that when I got able to do so for me to come back to Breckenridge and come around up to the office that he took this to mean that when he went to the Breckenridge office they would settle with him as they did before. Counsel then asked plaintiff: “Q. And is that the reason you did not file your claim with the Industrial Accident Board for compensation?” And the witness answered: “A. Yes, sir, that is the reason I did not file it; I considered that they had been notified of the injury.”

Mrs. A. E. Williamson also testified for the plaintiff, and she stated in her testimony that Mr. O’Brien told plaintiff that when he was able to go to work for him to come back to Breckenridge and come up to the office.

Plaintiff further testified that he first-learned that he was required to file a claim before the board when his wife went to Austin regarding other insurance policies. Mrs. A. E. Williamson, wife of the plaintiff, testified that she went to Austin regarding said other insurance policies in January or February, 1930» Mrs. Williamson further testified that plaintiff requested her to report to other insurance companies, and that on the 6th of August, 1929, she wrote one insurance company and on the 12th of August she wrote a second insurance company, reporting his injury, and making claim for insurance: Mrs. Williamson further testified that she knew that Mr. O’Brien was to see plaintiff: on November 2, 1929, because she marked the calendar, and that she marked the calendar because she wanted to keep this date in mind during her husband’s illness, and that she noted the calendar to see that this visit of O’Brien was within the six-month period after plaintiff’s injury.

We regard the evidence as wholly insufficient to excuse the delay in filing the claim until December 5, 1930.

If it be conceded that some slight reason existed excusing the first few months of delay, nevertheless in January or February, 1930, appellee’s wife went to Austin, and Re then learned from her no claim had been, filed with the board, that it was necessary to< do so and should still be filed. But he waited nine months longer before filing same andl no excuse for such delay is shown.

We therefore hold that the evidence is insufficient to excuse the delay and for this reason appellant’s motion for an instructed verdict made at the close of the evidence adduced by both sides, should have been granted. Zurich, etc., v. Walker (Tex. Com. App.) 35 S.W.(2d) 115.

Upon other issues of fact presented by the appeal we make additional findings of fact as follows:

(1) The evidence is sufficient to sustain the implied finding of the court in overruling appellant’s plea in abatement, that the ap-pellee’s petition was received for filing by the district clerk of Upton county within twenty days after appellee filed with the Industrial Accident Board notice that he would not abide by the ruling and decision of the board-For this reason the suit is to be considered as having been filed when the petition reached the clerk (Lessing v. Gilbert, 8 Tex. Civ. App. 174, 27 S. W. 751), and the overruling-of appellant’s plea in abatement presents no> error.

(2) The evidence is insufficient to show the proper average weekly wage upon which ap-pellee’s compensation should be based, and appellant’s fourth proposition raising this point is sustained.

(3) The evidence is sufficient to raise an issue as to whether the disability under which appellee is now suffering was caused by the previous injury which he received in February, 1929, arid appellant’s propositions 7 and 8 raising this point are sustained.

These three additional findings of fact are made to the end that it may not be necessary for the Supreme Court to Tremand the case to this court for further consideration in the event the Supreme Court should overrule our ruling that the evidence is insufficient to excuse the delay in filing the claim until December 5, 1930.

The evidence upon the issue of such delay has been fully developed and necessitates rer versal and rendition. It is therefore unnecessary for us to consider other propositions presented by appellant which raise purely questions of law and if they were sustained would require -only remanding the case for retrial.

For the reason shown, the judgment is reversed and here rendered in favor of appellant.


source: Caselaw Access Project

author: DUNKLIN, Justice.

license: Public Domain

text:
    CHRISTIAN et al. v. MANNING.

    No. 12780.
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 4, 1933.
    Rehearing Denied March 25, 1933.

      II. I). I'ayne, of Floydada, for appellants.
    Goggans & Ritchie, of Dallas, and Homer L. Baughman,' of Fort Worth, for appellee.

      Writ oí error granted.

   DUNKLIN, Justice.

On September 20, 1922, J. D. Christian and wife, Everil Christian, executed a deed of trust on 640 acres of land situated in Floyd county in favor of the Conservative Loan Company of Texas to secure the payment of their promissory note of even date therewith in the principal sum of $15,000, due January 31, 1933, with interest thereon at the rate of Y per cent, per annum, payable annually, evidenced by eleven coupon notes of even date with the principal note and attached thereto, the first maturing January 1, 1922, and the others on January 1st of each succeeding year thereafter, respectively, and all drawing interest from maturity at the rate of 10 per cent, per annum.

At the same time Christian and wife executed to the Conservative Loan Company seven other notes for additional interest on the $15,000 note, six for the sum of $450 each, the first due and payable January 1,1924, and one due on the '1st day of January of each succeeding year, and another note for $300 due January 1, 1930. Another deed of trust was executed contemporaneously with the deed of trust first mentioned to secure the payment of those additional notes and covering the same land. Each of those seven notes bore interest after maturity until paid at the rate of 10 per cent, per annum, payable annually, and provided for 10 per cent, additional as attorneys’ fees on default of payment, if placed in the hands of an attorney for collection. The mortgage given to secure those notes stipulates that the same would be subordinate to the mortgage given for the $15,000 note. Three of the interest coupon notes given to secure the principal note for $15,000 in the sum of $1,050 each and numbers 7, 8, and 9 of that series were transferred to J. S. Manning, who instituted this suit to recover thereon and to foreclose the mortgage given to secure the saíne. J. D. Christian and wife and the Conservative Loan Company of Texas were made parties defendant in the suit, and, later, the Federal Life Insurance Company, who acquired the $15,000 note from the Conservative Loan Company of Texas likewise became a party defendant.

Defendants J. D. Christian and wife filed an answer to the suit, in which they pleaded that all the notes executed by them to the Conservative Loan Company were tainted with usury in that they provided for the payment of more than 10 per cent, interest on the amount of money borrowed from the loan company, to wit, $15,000, and further pleaded certain payments made as interest which they sought to have decreed as credits on the principal of the $15,000 note.

Both plaintiff and the Federal Life Insurance Company filed replies to that plea, denying any usury and the Federal Life Insurance Company sought a decree establishing its lien for the principal sum of $15,000 and two of the interest coupon notes Nos. 10 and 1,1 of the first series, which were unpaid, as a valid and subsisting lien on the land as against Christian and wife and as a first and superior lien to that claim by the plaintiff, but seeking no foreclosure.

Upon a trial of the case a judgment was rendered overruling the plea of usury; awarding plaintiff a recovery for the three interest coupon notes sued on by him in the aggregate of $3,786, with foreclosure of the mortgage given to secure the same; also establishing the mortgage lien held by the Federal Life Insurance Company for the principal sum of $15,000 and the two unpaid interest coupon notes, Nos. 10 and 11 of the first series, as a valid and subsisting lien and superior to plaintiff’s lien. The judgment recites a finding that six of the interest coupon notes attached to the principal note for $15,000 and Nos. 1 to 6 had been paid by the Christians.

Whether or not the plea of usury presented by the Christians should have been sustained is the principal question to be determined here.

The note for $15,000, drawing interest at the rate of 7 per cent, per annum, payable annually according to coupon interest notes attached, has this further provision:

“The principal sum of this note shall bear interest after the same becomes due and payable at the rate of ten per cent per annum until paid.
“If default be made in the payment of any installment of either principal or interest, when due, or if any of the covenants contained in the mortgage securing this note be breached, then the entire indebtedness evidenced hereby shall, at the option of the legal holder hereof, become at once due and payable without notice.”

The deed of trust given to secure that note contains this provision:

“In case the said second party, its successors and assigns, satisfies any charge, of whatever nature, on the property hereby conveyed, or shall make any advances for taxes, insurance premiums, assessments or otherwise, to or on account of the grantors herein, the amount so paid for such purposes, including the interest thereon, shall be secured by this mortgage and shall be forthwith due and payable, and the said second party, its successors and assigns, shall be subro-gated to all tlie rights of the party to whom, such payments have been made.
“It is hereby further especially agreed that if any part of said note or interest coupons thereto attached, or any taxes or assessments, or premiums on insurance, or charge of any kind against said property, which shall have been paid by the said second party, its successors or assigns, remains unpaid for thirty days after the same shall have become due, or in the event of a breach of any covenant or condition by first party, as hereinbefore provided, then at the option of the said second party, its successors or assigns, the whole indebtedness and all sums secured by this mortgage, towit, the principal and interest then accrued on said note, and all advances made to or on ac'count of the first party herein, for taxes, assessments, premiums on insurance, and charges of every kind, shall at once ¡become due and payable. * * *
“If the said note, principal and interest be well and truly paid, as the same becomes ■due and payable according to the tenor and ¡effect thereof, and if all sums advanced by said second party, its successors and assigns, under the provisions hereof shall be paid, with interest thereon as above provided, and all of the covenants and agreements herein contained be faithfully kept and performed, then and in that event only, this conveyance ¡of .said premises shall become null and void, .and this instrument shall be released at the cost of first party, which cost he agrees to pay.”

On the trial it was agreed by counsel for all parties that the seven notes mentioned in the second deed of trust were for interest ¡on the $15,000 note additional to the inter•est coupons attached to that note; and it was further agreed that defendant J. O. Christian has paid to the Federal Life Insurance Company interest on the $15,000- note in different amounts and at different times, aggregating $5,783.66, which has been applied by the Federal Life Insurance Company on the interest coupons attached to the $15,000 .note.

The second deed of trust, given to secure :the seven additional interest notes, contains .this provision:

■“This deed of trust, however, is subject to ■a first mortgage of even date herewith executed by said parties of the first part to Conservative Loan Company of Texas for $15,-000 and said notes herein described and secured are given as a part of the agreed interest on said mortgage of $15,000 as evidenced by said note, secured by the first mortgage aforesaid; and the said party of the third part is entitled hereby to all of the rights of subrogation granted and secured by said first mortgage.
“And it is hereby agreed that if default shall be made in the payment of any of the notes hereby secured, or any installment of interest on said first lien note, when due, or failure to perform any or all of the covenants and conditions in said first mortgage, or to protect the lien of this trust deed against foreclosure of said first mortgage, then the holder of the notes herein secured may at his option, declare the whole of the indebtedness hereby secured due and payable at once without notice.”

Each of those notes for additional interest contains this provision:

“This is one of a series of seven notes secured by the above described deed of trust which said deed of trust is a second lien, and subject to a certain mortgage of even date herewith in the sum of $15,000.00, executed by J. D. Christian and wife, Everil Christian, to Conservative Loan Company of Texas.
“Failure to pay this note when due or any of the notes' of this series, or any installment of interest thereon, or failure to pay the interest on said first lien note above described, or to perform any of the covenants or stipulations in said first mortgage, or the deed of trust securing the payment of this series of notes, shall, at the option of the holder hereof, immediately mature all of said notes and the same shall become due and payable at once, without notice.”

The leading case in this state bearing-on the question here involved is Shropshire v. Commerce Farm Credit Co., 120 Tex. 400, 30 S.W.(2d) 282, 39 S.W.(2d) 11, opinion -by Justice Greenwood. The rule there announced, and as settled by all the authorities, is to the effect that, if by the terms of a promissory note or deed of trust in accord therewith given to secure the same it lies in the power of the creditor under any supposable contingency to exact usurious interest, the loan will be condemned as usurious; and that, if any part of the interest is usurious, the whole is vitiated. Commerce Trust Co. v. Best (Tex. Civ. App.) 54 S.W.(2d) 1037; Ledbetter v. First Nat. Bank (Tex. Civ. App.) 31 S. W. 840; First Nat’l Bank v. Wayburn, 81 Tex. 57, 16 S. W. 554. The court will credit against the principal all usurious interest collected. Cotton v. Beatty (Tex. Civ. App.) 162 S. W. 1007; Cotton v. Cooper (Tex. Com. App.) 209 S. W. 135. And a note is subject to the defense of usury in the hands of an innocent purchaser, because under the statute it is void in its inception and cannot be vitalized by its transfer to an innocent purchaser. Gilder v. Hearne, 79 Tex. 120, 14 S. W. 1031.

The record shows that the borrowers defaulted in payment of all of the second series of interest notes. Of that series the first matured January 1, 1924, and according to its terms and of the terms of the mortgage given to secure that series, the payee had the right to declare all of that series immediately due and payable, aggregating the sum of $3,-000. If at that time the borrowers had also defaulted in the payment of No. 1 of the first series of interest coupon notes attached to the $15,000 note, amounting to $1,050, then the lender would have had the right to mature the principal of the note for $15,000, together with $1,050 interest then accrued thereon, in addition to the $3,000 due on the second series of interest notes, all making a total for interest of $4,050 owing by the borrowers, in addition to the principal of $15,000 borrowed, according to the strict letter of the $15,000 note and the two series of interest coupon notes and the two deeds of trust executed to secure them. And it may be noted here that by the terms of the second mortgage default in payment of any of the coupon interest notes attached to the $15,000 note would give the holders of the second series of notes an additional right to declare all of the second series at once due.

Interest on the $15,000 loaned to the Christians, evidenced by their note for that sum, from September 20,1922, the date of the loan, to January 1, 1924, the date of the maturity of the first of the second series of interest coupon notes, computed at the rate of 10 per cent, per annum, the highest rate allowed by our statutes, would amount to $2,009.17; and deducting that sum from $4,050, the amount which the lender could have demanded on January 1, 1924, when he could have declared the entire debt due under the supposable contingencies noted, would leave a balance of $2,-045.S3, representing the amount of interest in excess of the limit fixed by article 5071, Rev. Civ. Statutes.

Even if the second series be considered separately and independently of the first series, the $3,000 which the payee could have exacted on January 1, 1924, was $955 in excess of the highest legal rate of 10 per cent, on the $15,000 loan up to that date; and that vice in the second series of interest notes tainted and vitiated the interest evidenced by the first series.

We conclude that all interest stipulated in "both the first and second series of interest notes was usurious and therefore appellants’ ■contracts to pay the same were void as against the Conservative Loan Company, the payee and all others claiming the same as assignees, including plaintiff, J. S. Manning, and the defendant Federal Life Insurance Company; and that the amounts heretofore paid by appellants as interest on the $15,000 note, aggregating $5,783.66, should be applied as a credit upon the principal of the $15,000 note, leaving a balance owing thereon the sum of $9,216.34.

The second deed of trust which was given solely for usurious interest should be decreed to be null and void.

In view of the disposition of this appeal as hereinafter shown, we deem it proper to discuss an alternative plea filed by the Federal Life Insurance Company seeking to be subrogated to the rights of holders of purchase-money notes secured by a vendor’s lien on the property in controversy, which it was alleged were taken up by the $15,000 loan to the appellants here, drawing 8 per cent, interest, and evidence was offered in support of that allegation although in briefs filed here that plea is not presented by any counterprop-osition to appellants’ assignments. Neither of the deeds of trust referred to above contained any contractual obligation giving the holder of the $15,000 note that right of sub-rogation ; hence that right, if enforceable at all, would be solely one in equity and supported by the sole fact that the $15,000 loaned was applied to the satisfaction of those vendor’s lien notes. That being a right in equity, it was incumbent upon the loan company to make a clear showing therefor under the rules of equity practice. In the first place, the $15,000 so advanced was represented by the principal of the note sued on herein and under the terms of that note and the deed of trust securing it, the holder has right to a judgment and foreclosure irrespective of the doctrine of subrogation in equity, and the holder is seeking to enforce that contractual right and to be subrogated to the stipulation for 8 per cent, interest in the old notes. The maxim that he who seeks equity must come into court with clean hands is applicable to the claim of subrogation. One seeking equity cannot be heard to assume inconsistent positions. The lender was chargeable with knowledge that the notes taken for the loan made to the appellants provided for usurious interest, contrary to the statutes. With that knowledge, it not only took the notes so tainted but later demanded and collected $5,783.-66 and applied the same on such usurious interest and has elected to insist upon holding the same in denial of the plea of usury. Therefore a waiver of the alleged right of subrogation was conclusively shown by un-controverted, proof whether such waiver was intended or not. Equitable Life Assurance Co. v. Ellis, 105 Tex. 506, 147 S. W. 1152, 152 S. W. 625.

Accordingly the judgment of the trial court is reversed in its entirety and in order that there may be one final judgment settling all issues involved, the cause is remanded for the purpose of allowing the Federal Life Insurance Company an opportunity to amend its pleadings in order to get personal judgment against appellants for the balance owing by appellants on the $15,000 note as indicated above, together with attorneys fees provided for in the note, with foreclosure of the mortgage lien given to secure the same, since it appears that such balance is now past due. And the trial court is instructed to render a final judgment that plaintiff, J. S. Manning, recover nothing against appellants for the three interest coupon notes held by him; that tlie Federal Life Insurance Company recover nothing of appellants on the two interest coupon notes Nos. 9 and 10, attached to the principal note for $15,000; and canceling the second series of interest coupon notes and the deed of trust executed to secure the same. The trial court will also render judgment awarding the Federal Life Insurance Company a recovery against appellants for said balance of $9,216.34, together with attorneys’ fees provided for in the note for $15,000, with interest from date of the judgment at the rate of 6 per cent, per annum, and with foreclosure of the mortgage lien upon the property in controversy, in full of all claims of the Federal Life Insurance Company, provided that company shall file an amended pleading praying for that relief; and this opinion will be certified to the trial court for observance.

On Appellee’s Motion for Rehearing.

It is insisted that since the mortgage given to secure the notes sued on and on which the judgment was based recited that those notes were given in renewal and extension of prior vendor’s lien notes on the same property, plaintiff was entitled to recover on those vendor’s lien notes unaffected by the usury in the renewal notes, under the rule of decisions announced in Cain v. Bonner, 108 Tex. 399, 194 5. W. 1098, 3 A. L. R. 874; Federal Mortgage Co. v. State National Bank (Tex. Civ. App.) 254 S. W. 1002; Bernheisel v. Firmin, 22 Wall. (99 U. S.) 170, 22 L. Ed. 766.

However, in Cain v. Bonner, supra, in an opinion by Chief Justice Phillips, the following was said:

“As originally brought, this suit was by W. 6. Cain for a balance due, with interest, upon a mechanics lien contract in the amount of $3,000.00 executed by Charles T. Bonner and wife in favor of one James Bothwell. It was instituted more than four years after the maturity of the contract. Special exceptions urged by the Bonners to the petition on the ground of limitation were sustained. Thereupon, the plaintiff, on February 22, 1911, by an amended petition set up respective written acknowledgments and renewals of the debt executed by the Bonners in his favor, and also its acknowledgment by Charles T. Bonner through a letter.
“The original contract given Bothwell provided for interest at the conventional rate from its maturity. The renewal obligations given plaintiff stipulated for the payment of interest at a usurious rate. The defense of usury was made. * * *
“When in an action for debt a new promise is relied upon to avoid a plea of limitation, such promise whether made before or after the bar is complete, constitutes the cause of action and must be declared upon for a recovery. Since the statute, when pleaded, makes a recovery upon the'barred debt impossible, reliance upon the new promise to overcome limitation necessarily makes of it the cause of action. Otherwise there is no cause of action that may be enforced. * * *
“Having declared upon the renewal agreements, the plaintiff’s right of recovery was measured by them. He could not avail himself of their benefits without subjecting his action to the defenses which they afforded. The ordinary principles of estoppel would deny to him the appropriation of only their favorable results. With the suit resting upon them, their usurious character was necessarily an available defense. It was therefore proper to apply the usurious interest collected by the plaintiff under them to the reduction of the principal of his debt, as was done by the Court of Civil Appeals [149 S. W. 702J in its judgment.”

As pointed out in our opinion on original hearing, plaintiff’s suit was upon the renewal notes and not upon the original vendor’s lien notes, and therefore subject to the defense of usury which was pleaded. That conelusion is expressly sustained by the foregoing decision of our Supreme Court; and that would be true even if plaintiff had expressly declared on the original vendor’s lien notes in an alternative or amended pleading; to say nothing of a probable additional defense of limitation to the vendor’s lien notes, “if the case should be remanded for the purpose of permitting an amended pleading decláring on those notes.

Accordingly, the motion for rehearing is overruled.

On Appellants’ Motion for Rehearing.

Since it appears that the defendant Mrs. Everil Christian, wife of J. I>. Christian, was a married woman at the time the notes sued on herein were executed, no personal judgment against her can be recovered, and therefore the personal judgment which the trial court is instructed to render in the cause in favor of the Federal Life Insurance Company will be against J. D. Christian only and not against the defendant Mrs. Everil Christian; and the opinion heretofore filed is hereby corrected to that extent.


author: GRAVES, Justice.

text:
    TURNER v. TEXAS & N. O. RY. CO.
    No. 9830.
    Court of Civil Appeals of Texas. Galveston.
    March 29, 1933.
    Rehearing Denied April 20, 1933.
    John & Levy, of Houston, for plaintiff in error.
    Baker, Botts, Andrews & Wharton, John P. Bullington, and Tom M. Davis, all of Houston, for defendant in error.
   GRAVES, Justice.

A statement of the nature of and issues in the case, mutually conceded to be correct, is thus taken from the briefs:

“Defendant-in-error’s first amended original petition declared upon- a written contract between defendant-in-error, the Dayton & Goose Creek Railroad Company and plaintiff-in-error, dated June 21, 1927, the agreement being termed an ‘Agreement for Industry Track,’ which provided among other things that the Dayton & Goose Creek Railway Company and defendant-in-error would construct a certain siding not to exceed 1380 feet in length to connect with the main track of the Dayton & Goose Greek Railway Company at Mt. Belvieu, Texas, and would lease 700 feet of such track to plaintiff-in-error in consideration of plaintiff-in-error paying an annual rental equal to 6% of the agreed value of the track, which value was agreed to be Two Thousand and 93/100 ($2,000.93) Dollars, or the sum of $12‘0.06 per annum, payable in advance, and further provided that plaintiff-in-error would bear the expense of keeping in repair the track,» which expense was agreed to be ten cents per track-foot, or the sum of $70.00 per year. Defendant-in-error further alleged that the agreement was duly executed and authorized by law and that the track was constructed and that plaintiff-in-error had the use of the track from June 21, 1927, to date but .has failed to pay any rental or expense, to the damage of defendant-in-error in the sum of $746.18, with interest at 6% from June 21, 1927.
“Defendant-in-error further declared upon a lease between the Dayton & Goose Creek Railway (Company, defendant-in-error and plaintiff-in-error dated June 15, 1927, wherein a tract of land, owned by the Railroad, 300 x 60 feet, adjoining 700 feet of the new track to be built, was leased to plaintiff-in-error at an annual rental of $12.00 per year, payable in advance; that plaintiff-in-error has refused to pay such rental, to their damage in the sum of $49.15, with interest at 6% from June 15, 1927, which sum is secured by a lien on the improvements placed by plaintiff-in-error upon the property.
“Defendant-in-error then asks for judgment and foreclosure of its lien, attorney’s fees, and general relief.
“Plaintiff-in-error, by original answer, generally demurred to the cause of action, and as a special defense alleged that the contract styled an ‘Agreement for Industry Track,’ was unenforceable as it was without consideration, in that at the time defendant-in-error constructed the track the traffic conditions and freight tendered at Mt. Belvieu made it the legal duty of defendant-in-error to construct such trackage without charge to plaintiff-in-error; that before the promise was made, defendant-m-error had been notified by plaintiff-in-error that he had large quantities of rice to be shipped to other points in Texas and that he would need about twelve cars a day which could not be accommodated on the small trackage facilities then existing at Mt. Belvieu; that defendant-in-error had refused to construct the additional tracks unless plaintiff-in-error agreed to pay for part of the construction and the maintenance, although plaintiff-in-error had within a reasonable time requested such additional cars and track.
“As further answer to the cause of action based upon the lease of land adjoining the track, plaintiff-in-error alleged that he had delivered to defendant-in-error a check to cover the rental due under such lease.
“The entire answer was sworn to by plaintiff-in-error.
“Defendant-in-error, by supplemental petition, filed special exceptions to the answer of plaintiff-in-error, but they were never presented to the court.
“Defendant-in-error filed a trial amendment, alleging that the lease of the land adjoining the track had been canceled by their notice to plaintiff-in-error, dated January 25, 1930, but that plaintiff-in-error .had not vacated, and they asked for judgment from January 25, 1930, at the rate of $12.00 per year as the reasonable rental value. Defendant-in-error then pleaded in the alternative that the lease was terminated by the filing of the suit, and asked for an annual rental of $12.00, and further in the alternative, if the lease was not terminated, the contract rental was $12.00 per year. Defendant-in-error also pleaded that it was entitled, to rental on the industry track from July 21, 1931, on a quantum meruit count.
“At the close of the evidence, the trial court directed a verdict against plaintiff-in-error and in favor of defendant-in-error, upon the due return of which judgment went in the latter’s favor.
“The sole issue involved in the case was whether or not the ‘Agreement for Industry Track,’ executed by and between Dayton & Goose Greek Railway Company, Texas & New Orleans Railroad Company, and E. W. Turner, was based on a valid consideration. It was conceded that plaintiff-in-error’s only defense on the trial below was that there was not sufficient legal consideration to sustain plaintiff-in-error’s promises and agreements made in the contract, the following agreements being made:
“ ‘We have only one defense in the case, that we are not liable to pay that money, because of the lease of itself, and we concede all points except the question of whether or not there is sufficient consideration in law for our promise to pay for the side track and the plaintiff occupy all the side track.’
“ ‘It is agreed and stipulated by and between the parties that the amount of rental. stated in plaintiff’s original petition is the correct amount for rentals accruing under the contract, if defendant is liable for any rentals at all under such contract; and that the additional amounts declared on in plaintiff’s first amended original petition is the fair and reasonable value for the use of such track, if defendant is liable for any amount whatsoever for the use of such track.
“ ‘It is further agreed that a trial amendment may be filed by plaintiff declaring upon quantum meruit for the reasonable value of the use of the trackage from and after the date of the attempted cancellation, and the defendant will be permitted by a trial amendment to file any proper reply if he desires to do so, and such trial amendment may be considered as filed nunc pro tune.
“ ‘It is also stipulated that plaintiff’s original petition is considered in evidence for the use of all parties with reference to the foregoing stipulation.’ ”
Likewise in this court, through a number of propositions, plaintiff in error reiterates as a ground for a reversal of the judgment so rendered against him his sole substantive contention below: “The defendant-in-error, in building this additional trackage, was only doing what it was already legally obligated to do, and the plaintiff-in-error received no benefit from this additional trackage, other than what he was entitled to receive as a member of the public offering freight for shipment at Mt. Belvieu, Texas.”

Whatever might be said anent the other questions argued, this court concludes that this presentment cannot be sustained, under the facts appearing, for the reasons thus stated in the railroad company’s counter propositions:

“(1) The undisputed evidence in this case shows that defendant-in-error agreed to and did furnish, and plaintiff-in-error contracted to pay for and did obtain, an industry-track over which, as against both the public and defendant-in-error, he had preferential use for the accommodation of his individual interest; so that, even assuming that the'transportation facilities at Mt. Belvieu at the times in question were inadequate, nevertheless plaintiff-in-error cannot avail himself of that fact, since defendant-in-error’s only statutory or common-law duty in that regard was to provide adequate facilities open to all members of the public alike, and it did not owe any duty of providing additional facilities designed and constructed for, and capable only of, preferential use by one shipper.”
“(2) Defendant-in-error, having constructed 700 feet of industry-track for and designated it to plaintiff-in-error’s preferential use, was bound and obligated to exact of plaintiff-in-error a reasonable charge for the use of that track; otherwise, it would have amounted to the granting of an illegal and unlawful preference to plaintiff-in-error and to an illegal and unlawful discrimination against the other members of the shipping-public, who were not given similar special facilities for their own individual use.”

The “agreement for industry tracks” provided, in substance, that the railway would construct 1,380 feet of side track; that Turner desired the use of 700 feet of it, and that the railway granted him that use under certain specified terms and conditions, article X, subdivision (a), thereof being as follows: “The right is given the first party (railroad) at any time to make use of said trackage for the purpose of receiving and delivering freight from and to other patrons, to spring other tracks therefrom, to shift and to extend the same; provided, such use or any extension thereof shall not unreasonably interfere with the second party (plaintiff in error) in its use thereof.”

Ground was also contemporaneously leased to him along 300 feet of this 700 to build his warehouse on, and he not only then took possession of the 300 feet, but built his warehouse thereon at the same time the railway laid the track.

He then sublet one portion of this warehouse to a lumber company, which used the track in front of and adjoining it, likewise leasing another portion thereof to a cement company, with whpm it was contemplated that the latter too would use this track, which it also did, and its use thereof made the warehouse more valuable to that company than it otherwise would have been.

He got rents from both of these subleases, the lumber company paying him $50 per month, and the cement company $35 per month, while he was only obligated to pay the railway company $12 per year as the rental for the land on which the warehouse was so constructed.

Mr. Turner, while testifying, admitted that the location of the warehouse along the railway track made it impossible for any one to use the track where the building was located, except those shipping to or from' his warehouse ; further, that there had been two proposed contracts, one whereby he could have exclusive use of the track he desired, paying the railway for it, or he could have merely preferential use and pay only 6 pr cent, of the cost of the track, and this latter was the agreement finally made.

He further testified that the railway never shoved out any of his cars to get them out of the way for the benefit of the general public, and whenever he wanted to use the track alongside his warehouse, it was always available for that purpose.

He also said he understood that he had the preferential use of the track by his warehouse with a portion on each side, that is, that he and the farmers had it, and that he acted for the farmers, saying in this connection, “there couldn’t anybody get on the track except stuff going through the warehouse.”

The assistant to the general manager of the railway company, in outlining what occurred between the parties in negotiating and making the contract, among other details, testified: “I explained to him that the railroad company, of course, always provided track facilities free of charge to the patrons where it was a public track and used in common alike by everybody, and he had the opportunity to ship or unload at the station, but if it was a case where he wanted a track to serve a warehouse, which he wanted to construct, that he would, of course, have to pay a charge for the track; that we could not consistently build a track free of charge without doing the same thing for everybody alike; that that was a customary procedure with respect to requests that came in for tracks to serve private industries and preferential service such as would be necessary in serving a warehouse where he proposed to construct it at that point. * * » In the discussion Mr. Turner explained that he would, of course, want preference there, because he was building the warehouse and he wanted the track available to spot cars in which to load rice passing through his warehouse when they were ready to load it, or wanted to unload it. I think that was the only conversation I ever had with Mr. Turner, and the contract which was finally entered into between the railroad company and Mr. Turner was the outgrowth of that conference.”

He added that Mr. Turner never requested a team track for public use, but stated he wanted one that would serve his warehouse to be constructed, and that he wanted a track that would be available to him at all times for his own use, and that he could not carry out his plans without- having a preferential use thereof; that when the difference was explained to him between the facilities offered in public team tracks and preferential tracks for serving a particular individual, Mr. Turner replied: “That his business would require a track on which he would have preference; whenever he had cars to load or unload he wanted the track available for him subject to his use at any time.”

He stated that it is a general practice in the railroad business to require pay for building a track which is for the preferential use of a particular shipper, and that, if Mr. Turner had merely requested a team track at that point for his own benefit and that of the shipping public in general, it would have been granted.

Mr. Turner and the farmers whom he represented, and who through him used his warehouse and its appurtenant track he had so obtained from the railroad company, were engaged in the rice business, and several witnesses in his behalf testified in a rather general way to having seen other commodities than rice, lumber, and cement — the three products thus handled by himself and his two sublessees — unloaded on the’ 1,380-foot spur track, but they all particularized that none of these had been unloaded at or right opposite to this warehouse, and none of them testified to ever having seen the general public allowed to use that portion of the track.

It thus from the evidence as a whole conclusively, if not undisputedly, appears that in the negotiation of the express declaration in (by way of the quoted provision from article X, subdivision a), and the subsequent acts of the parties under this contract, that Mr. Turner both bargained for and received in fact a preferential use of 700 feet of the spur track, in that neither the railroad company nor members of the public in' general were ever expected to or ever had interfered with his particular and individual use thereof for the advancement of his own private interests ; that being true, it follows as a matter of course that this 700 feet of the track in front of and adjoining his warehouse so designed for and devoted to his individual use exclusively was not a public track.

The legal consequences flowing from this situation are, as stated in tlie quoted counter propositions, that the railroad company never owed Mm any duty of providing Mm such preferential facilities gratis, nor was even permitted to do so, since that would have amounted to an unlawful discrimination in Ms favor as against other members of the shipping public not accorded the same privileges.

It is not deemed necessary that an attempt be here made to again demonstrate that such is now the law in Texas, as it is believed to be well settled under these statutes and decisions: Railroad Commission of Texas v. St. Louis Southwestern R. Co. of Texas, 35 Tex. Civ. App. 52, 80 S. W. 102, writ of error denied; Railroad Commission of Texas v. St. Louis Southwestern R. Co. of Texas, 98 Tex. 67, 80 S. W. 1141; Crosbyton-Southplains R. Co. v. Railroad Commission of Texas, 169 S. W. 1038 (Austin Court of Civil Appeals 1914, writ of error refused); Ryan Lumber Co. v. Ball, 197 S. W. 1037 (Galveston Court of Civ. App. 1917); Beaumont, S. L. & W. R. Co. v. Moore, 174 S. W. 844 (Galveston Court of Civ. App., writ of error denied); article 6515 and article 6474, subd. 1, Revised Civil Statutes of Texas, 1925.

In view of the sole issue to which the iitigation was reduced by the stipulations of the parties, it follows that, on the coming in of the facts stated, the judgment of the learned trial court was the only one that could have been properly rendered; it will accordingly he in all things affirmed.

Affirmed.


author: WALKER, Chief Justice.

text:
    MILLER et al. v. MORAVIETZ.
    No. 2362.
    Court of Civil Appeals of Texas. Beaumont.
    March 30, 1933.
    '■ Horace E. Wilson, of San Antonio, and W. S. Ethridge, of Bandera, for appellants.
    Hull & Oliver, of San Antonio, for appellee.
   WALKER, Chief Justice.

On the verdict of the jury that appellee, Paul Moravietz, and the public generally, continuously used and traveled the road, described in appellee’s petition, across the land of appellants, substantially along and upon the same route, for a period of ten years or more next preceding January 1, 1930, that such use and travel was exclusive and adverse against appellants and J. A. Miller, under whom appellants hold, and that such use of the roadway was without the permission or license of appellants or J. A. Miller, the judgment of the lower court ordered appellants Mrs. J. A. Miller, surviving wife of J. A. Miller, deceased, and Miss Minnie M. Miller, by a mandatory injunction, to provide and allow openings or gates in the fences wMch they had built across the road, established by the jury’s verdict, and forever restrained and enjoined them, from molesting and interfering in any manner with appellee and the public generally in the use of the road. By the judgment the road was described as follows:

“That said road leaves the San AntoMo-Bandera highway at a point about One Hundred Eighty-five (185) yards West of the corner of the defendants’ said tract of land where same joins the land owned by Mrs. H. L. Atkins, as herein described, and passes through a gate in a fence; and thence with the meanders of said road in a Southeasterly direction across the land of Mrs. Atkins to a point about Three Hundred Thirty-five (335) yards in a Southerly direction on the line of the said Miller tract and the said Atkins tract where said road passes through a gate in a fence situated on the Miller-Atkins line; Thence in a Southeasterly direction with the meanders of said road across defendants’ herein described tract of land, a distance of about Eight Hundred Sixteen (816) yards, where same passes through a gate in the fence on the line between the defendants’ herein described tract of land and the land of Homer Stevens; that said road over said distance is a plain, distinct and well-marked road, having in its entire length well-defined ruts, marks and tracks at all points on same where it leaves the San Antonio-Bandera highway, as herein described, to the point where it reaches plaintiff’s house, and beyond.”

The road was described in appellee’s petition as in the judgment. All exceptions against this description are overruled. The “well defined ruts, marks and tracks” at all points from the beginning point of the road to appellee’s house and beyond were sufficient to identify its location upon the ground. International & G. N. Railway Co. v. Cuneo, 47 Tex. Civ. App. 622, 108 S. W. 714.

Appellants bring forward special exceptions against appellee’s allegations of necessity, special damages, and his prayer to fix and define and prescribe the limits of the road prayed for, if mistaken in the allegations of its specific location. As none of these issues, and other special issues excepted to, were submitted to the jury or entered into the judgment, the rulings on these special exceptions become immaterial.

As appellee had pleaded a prescriptive use of the road in favor of the general public, it was not error to submit this issue to the jury and enter judgment on that issue, as found by the jury, in favor of the general public.

The charge of the court defined “adverse use” as meaning “any actual and visible use and appropriation of said land over which said road runs, for road purposes, commended and continued under a claim of right inconsistent' with and hostile to the claim of the defendants and J. A. Miller.” Appellants have brought forward by their brief no exceptions to this charge except to say that the “definition is not in accord with the decisions cited herein”; and, as part of .this exception, say that the court should have submitted the following definition, which was cited with approval in Phillips v. Railway Co. (Tex. Com. App.) 296 S. W. 877:

“You are instructed that the mere use of defendants’ land by the plaintiff as for a roadway is insufficient of itself to establish a roadway by prescription. The user must be adverse and hostile to the rights of the owner and under color or claim of right so to use the land. A user by license or permission of the owner of the land sought to be impressed with such an easement of travel, is not adverse, and affords no basis for prescription, where the owner did not consent to the user of his land by the plaintiff as of right. In order to create a roadway over lands by prescription the user must be exclusive; that is, it must be such as to show a claim of right to use the land as a roadway to the exclusion of any individual right of,the owner inconsistent therewith.”

The definition as given was sufficient to enable the jury accurately to answer the issues submitted, and has support in Panhandle & S. E. Railway Co. v. Hoffman (Tex. Civ. App.) 250 S. W. 246.

The verdict of the jury on all issues submitted has abundant support in the testimony. The evidence was without conflict that the road in issue had been in general use more than fifty years. It was used during this' time by appellee and his father, by all the people in that section of the country, by the doctor who practiced medicine for the people who lived in that section of the country, and the use of the road was as general and universal as if it had been regularly established as a public road. Occasionally it was worked by the citizens who used it. Ap-pellee himself worked it now and then. Many .witnesses testified for appellee that they used the road as if it were a public road, without asking the consent of appellants and without any thought of asking their consent.

Under the following authorities, the testimony fully supports the verdict of the jury on all issues submitted. Porter v. Johnson (Tex. Civ. App.) 151 S. W. 599; Railway Co. v. Cuneo, supra; Race v. State, 43 Tex. Cr. R. 438, 66 S. W. 560; Evans v. Scott, 37 Tex. Civ. App. 373, 83 S. W. 874; Martinez v. Vidaurri (Tex. Com. App.) 275 S. W. 999, reversing Court of Civil Appeals, 260 S. W. 651; Gulf, C. & S. F. Railway Co. v. Bryant (Tex. Civ. App.) 204 S. W. 443; Robison v. Whaley Farm Corp., 120 Tex. 633, 37 S.W.(2d) 714.

Affirmed.


author: LOONEY, Justice.

text:
    PARKER v. ROYAL INDEMNITY CO.
    No. 11394.
    Court of Civil Appeals of Texas. Dallas.
    March 18, 1933.
    Rehearing Denied April 22, 1933.

      White & Yarborough, of Dallas, for appellant.
    Robertson, Robertson & Payne, of Dallas, for appellee.
   LOONEY, Justice.

W. C. Parker appealed from the final decision of the Industrial Accident Board -on his claim for compensation for injuries alleged to have been sustained while in the course of employment with Buick Motor Company, subscriber ; appellee, Royal Indemnity Company, being the insurance carrier.

When injured, appellant had been working for Buick Motor Company, at its business establishment in the city of Dallas, for nearly two years; his duties were varied, that is, he served as fireman, janitor, and special officer; as fireman it was his duty to fire the boiler and keep the Building warm; as janitor to scrub the floors and keep the office furniture clean; as special officer to see that the law was not violated in and around the building, -to watch the entrance thereto, and cars brought to the plant, and those belonging to the employees and Buick dealers, while parked on -both sides of Harwood street, on which the business establishment of the motor company abutted. The morning of the injury appellant was at work at the plant, but, not feeling well, told his superior, Mr. Robinson, building superintendent, that he thought he was taking flu; thereupon Mr. Robinson gave him some soda mint tablets as a preventive, also gave him 25 cents, with directions to go •to the drug store across the street (Harwood) in about an hour, 'buy more tablets and take them; so, as directed by Robinson, appellant was in the act of crossing the street to the drug store for the medicine, when -struck by an automobile, knocked down, and severely injured. The place where appellant was struck by the auto was within the zone where he was required to perform duties as special officer, and when -struck was watching the building of his employer.

At the conclusion of the evidence, on motion of appellee, the court instructed a verdict in it-s favor, on the theory that appellant’s injuries were not sustained in the course of employment, within the meaning of the Oom-pensation Law (Vernon’s Ann. Oiv. St. art. 8306 et seq.). Judgm'ent was rendered against appellant accordingly, from which -he appealed.

But two questions are presented for consideration: One, the alleged error of the court in directing the verdict; the other, error in excluding certain evidence offered by appellant. These questions invoke the identical doctrine and are ruled by the same authorities.

We think appellant could, with propriety, combine the purely personal purpose of his trip across the street to the drug store for medicine, with the discharge of duties as employee, without departing from the scope of his employment. Whether or not an employee when injured is in the course of employment is ordinarily a 'question of fact, and, in the instant case, we think the facts tended strongly to show (and the jury would have been authorized to find) that the activity of appellant when injured, though primarily to serve an immediate personal purpose, was intimately connected, interwoven, had to do with, and originated in, the work and business of his employer, and that he sustained the injuries while engaged in and about the furtherance of the affairs and business of his employer.

Many cases may be found more or less analogous to the case at bar, but are of no special value as precedents, because not directly in point; however, we are not without controlling precedent from our own courts, as well as from courts of other states.

In Southern Surety Co. v. Shook et al. (Tex. Civ. App.) 44 S.W.(2d) 425, 429 (writ refused by the Supreme Court), the Eastland court had before it and allowed compensation in a case based upon facts in substance as follows: Lucien Shook was employed by Braden Company, as pumper on an oil lease in Eastland county, his duties being to keep the pump in operation night and day; he lived alone, and occupied a two-room shack near the oil well being pumped; kept dogs and hunted in the vicinity; maintained a croquet court near the shack for diversion, and did not at all times remain upon the lease or at the pump; all this was known to his superintendent. About 6 p. m. September 7, 1928, three young men of the community approached the shack where Lucien Shook stayed, to rob or murder him, but, finding his brother Leon present, one of the three outlaws, named Thompson, for the purpose of enticing the Shook brothers from the shack, falsely stated that some wolves were held at bay over the hill about a half mile away, requested the Shook brothers to accompany the party with their dogs, lantern, etc., on a wolf hunt; this was agreed to, and, while approaching the place where the wolves were supposed to be held at bay, walking single file, Thompson shot and killed both Lucien and Leon Shook. The facts show that the noise of the pump in operation was heard for more than a mile, and that the place where the wolves were supposed to 'be was within that radius. Mrs. Shook, mother of Lucien, and other legal beneficiaries, filed suit to set aside an award of the Industrial Accident Board denying compensation.

The opinion of Judge Hickman is lengthy, but his reasoning may be gleaned from the following excerpt, he said: “The logical conclusion of appellant’s argument is that he [Lucien Shook] was on employment only when he was actually at work. Under the strict construction which it employed he was not on duty while sitting in his shack listening to the engine. Our view is that, so long as he was in a zone where he could hear the engine -and was in a position where he could go to it when occasion arose, it could make no difference whether he were sitting quietly in his shack, sleeping, eating, exercising, dancing, playing cards, or doing anything else. Of course, if the .dancing, card playing, etc., afforded the reason for his being murdered, a different case would be presented. Suppose he and his brother had been dancing or playing cards together or with others in the shack when these boys came up and Thompson had ■then shot him for the purpose of robbery. Should that fact operate to deny a right of’ recovery? We think not.

“Shook’s employment was analogous to that of a driver of a fire truck. He spends twenty-four hours per day in and around the fire station to be in readiness to go to a fire when an alarm is turned in. Could it be reasonably and justly contended that such fireman would not be in the course of his employment while playing games in the fire station or playing croquet or baseball on the outside within convenient distance thereof and within hearing of the gong? Surely not. The same reasoning that would exclude Shook under the facts of this case would likewise exclude the fireman under the facts of the suggested case.”

Comparing the Shook Case with the case at bar, it is obvious that the Eastland court, in holding that the death of Lucien Shook, received under the circumstances there involved, was compensable, extended the rule of liberal construction much further than is necessary should be done to hold that the injuries received by appellant are compensable under the Compensation Law.

The facts in Taylor v. Hogan Milling Co., 129 Kan. 370, 282 P. 729, 66 A. L. R. 752, were these: An employee of a milling company, during his hours of service, went to an upper floor on a man lift to pay a bill owed to a fellow employee, with the permission of his foreman. It was a rule of the employer that employees should pay their bills to collectors when they called, and to do so on the company’s time, and it was the practice of the company that employees, in going from one floor to another, should use the man lift; the purpose being to conserve the time and energy of employees. While the employee was going to the fourth floor on the man lift to pay the bill, he sustained an injury for which he claimed compensation under the Workmen’s Compensation Law. Held, under the circumstances and evidence related in the opinion, the injuries suffered were incidental to his employment and arose out of it, and therefore he was within the protection of the Workmen’s Compensation Law.

In Thomas v. Proctor & Gamble Mfg. Co., 104 Kan. 432, 179 P. 372, 375, 6 A. L. R. 1145, the plaintiff, an employee, was injured during the noon intermission; remaining after lunch, she and other employees, engaged in playing on a truck which was an approved custom at the plant, and while at play, was accidentally injured. The court held that this was an incident of the employment, and that the accident arose out of and in the course of the employment.

The same court, in White v. Kansas City, etc., Co., 104 Kan. 90, 177 P. 522, said that injuries arise out of the employment whenever they are such as the character of the -business, or the conditions under which it is carried on, make likely, and the result either was or should have been in the contemplation of the employer.

The case of McDonnell v. Swift & Co., 124 Kan. 327, 259 P. 695, bears a close resemblance to the case at bar. There an employee used his own ear in going to the employer’s plant, and had been assigned a place in the company’s yards to park his car. On the morning of the injury he found that some one else had used the space allotted .to ¡him; this fact was reported to his foreman, who told him to ascertain who owned the car and have it removed. The employee started to carry out the suggestion o-f his foreman, and, while passing through the plant, fell into a vat of hot water, and was so badly scalded that he died. Although the automobile which he was endeavoring to park was his private property, neither needed nor used in his employer’s business, and notwithstanding the parking of the car was Jais own private business, and not a matter of concern to his employer, yet it was held that he was within the protection of the Compensation Law. He was in the plant of his employer, as in the instant case, had been directed by his foreman to go on an errand of primary interest to himself, as in the instant case, and was injured while following the directions of his foreman, as in the instant case.

In Archibald v. Workmen’s Comp. Com’r, 77 W. Va. 448, 87 S. E. 791, 792, L. R. A. 1916D, 1013, acts of an employee of a personal nature, engaged in at the time the injury was received, were commented upon by the Supreme Court of West Virginia as follows: “Such acts as are necessary to the life, comfort, and convenience of the servant while at work, though strictly personal to himself, and not acts of service, are incidental to the service, and injury sustained in the performance thereof is deemed to have arisen out of the employment. A man must breathe and occasionally drink water while at work. In these and other conceivable instances he ministers unto himself, but in a remote sense these acts contribute to the furtherance of the work. * * * That such acts will be done in the course of employment is necessarily contemplated, and they are inevitable incidents. Such dangers as attend them, therefore, are incident dangers. At the same time injuries occasioned by them are incidents resulting from the employment.”

In the light of these authorities, we are of opinion that the facts demanded the submission of the issue as to whether appellant’s injuries were sustained in the course of employment, and that the court erred in directing a verdict for appellee.

Appellant also assigns as error the refusal of the court to allow him to testify as stated below. After testifying that Mr. Robinson, building superintendent, gave him some soda mint tablets, as a flu preventive, also 25 cents, and directed him within an ¡hour to go to the drug store, purchase more and take them, he offered to testify further that Robinson said to him in this connection: “We don’t want you sick around here, I want you to be in shape to carry yo-ur work on down here every morning- at 5:30 and fire up the boiler, no one here to take your place now, we want you on duty.” This testimony was excluded on objection by appellee that it was irrelevant and immaterial.

The excluded evidence tends to show that the injuries received by appellant while crossing the street to the drug store to purchase medicine, as directed by his superior, originated in and had to do with the work and business of the Buick Motor Company, and were received while appellant was engaged in and about the furtherance of the affairs and business of his employer hence we think the court erred in excluding same.

Eor the errors above indicated, the judgment -below is reversed, and the cause is remanded for further proceedings.

Reversed and remanded.


author: PLY, Chief Justice. SMITH, Justice. MURRAY, Justice. FLY, Chief Justice

text:
    HAUSMAN BROS. PACKING CO. v. ALLEN.
    No. 8985.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 25, 1933.
    Rehearing Granted and Judgment Reversed and Rendered April 12, 1933.

      Gibson & Blaekshear, of Laredo, for appellant.
    John O. My rick, of Harlingen, for appel-lee.
   PLY, Chief Justice.

Appellee sued appellant in Cameron county, and appellant pleaded its privilege to be sued in Webb county, its alleged domicile. The plea of privilege was overruled, and this appeal resulted.

Appellant alleged that it had no agency in Cameron county, but this was controverted by appellee, as follows:

“Now comes J. W. Allen, plaintiff in the above entitled and numbered cause, and controverts the plea of privilege of the said Haus-man Brothers Packing Company, a private corporation duly incorporated defendant herein, and says that he has good reason to believe and does believe and so alleges that defendant’s said plea is incorrect and that this court has venue of this cause and of the person of this defendant on the following reasons, to-wit:
“That -the defendant herein has an agency and personal representative, in the person of Mrs. A. Hausman, stationed at Brownsville' in Cameron County, Texas.”

The controverting affidavit was sufficient, and if there was any doubt in the mind of appellee as to other allegations of the plea, he swears positively that appellant had an agent in Brownsville, giving the name of such agent. The affidavit is valid and sufficient.

Mrs. Hausman testified that she owned the business in Brownsville, operated under the name of Hausman Brothers Company, and her business was not a branch or agency of Hausman Brothers Packing Company. She is a director of the last-named company and attends meetings of the board of directors in Laredo. J. W. Allen, appellee, testified that Mrs. Hausman told him that her business in Brownsville was a branch of the Laredo Corporation. This she denied. The telephone used by Mrs. Hausman was in the name of the Hausman Brothers Packing Company, and the lease of the property on which she operated her business was in the name of that company. We conclude that the circumstances were of sufficient cogency to sustain the conclusion of the trial judge that Mrs. Hausman was operating an agency of Haus-man Brothers Packing Company.

The propositions are overruled, and the judgment is affirmed.

On Motion for Rehearing.

SMITH, Justice.

A majority of the court have concluded upon rehearing that the record does not sustain venue in Cameron county, and that the order overruling appellant’s plea of privilege should be reversed and the venue changed to Webb county.

The suit was filed on November 24, 1931, to recover upon a debt contracted on sundry dates between June and November, 1930. Citation was served on the same day upon Mrs. A. Hausman, alleged to be “manager” of appellant at Brownsville. The question of venue must therefore be tested by the facts existing upon said date, to wit, November 24,1931.

The record shows that on March 10, 1931, appellant, Hausman Brothers Packing Company, a corporation, “of Laredo, Texas,” leased an abattoir from the city of Brownsville and agreed to operate the same for the ensuing period of ten years. Appellant is engaged in the packing house business at Laredo, which has always been its corporate domicile, and sells its products throughout Southwest Texas through the agency of its traveling salesmen. It has no local agents or plants anywhere, except at Laredo, the place of the corporate domicile, unless, under the facts of this case, it operates a local plant at Brownsville, under the management of Mrs. A. Hausman. When it leased the abattoir at Brownsville, it subscribed for a local telephone, which was then and still is listed under the corporate name. These transactions occurred about eight months before this suit was filed.

The abattoir is being operated by Mrs. A. Hausman, the widow of a former stockholder and director of appellant corporation, who, upon his death, succeeded to her husband’s interest and official relation to the corporation. As a director she attends some of the meetings of the directorate at Laredo. Appellee testified that after the suit was filed and two months before the plea of privilege was tried, Mrs. Hausman told him “this was a branch of the Laredo house and she was the manager of the branch.” This testimony was admitted for and restricted to impeachment purposes, and it obviously could not be regarded as evidence on the question of agency, since agency may not be proven by mere declarations or admissions of the alleged agent. The foregoing constitute all the facts relied on by appellee to sustain venue.

On the other hand, Louis Hausman, president of appellant corporation, and Mrs. A. Hausman, testified without contradiction that shortly after the abattoir was leased by appellant and several months before this suit was filed Mrs. Hausman purchased the lease from appellant, who duly assigned the same to her, and appellant has not since been in any way. interested therein or in the business operated thereunder, and has had no business, agency, or agent in Cameron coun‘ty, or in any other county than Webb; that Mrs. Hausman has no relation to or connection with appellant except as a director, in which relation she has and exercises no other authority or duty except to attend meetings of the directorate at Laredo. Mrs. Haus-man further testified that when she acquired the lease from the city she began operating the abattoir under the legally assumed name of Hausman Packing Company, duly registered and on file in the county clerk’s office, as provided in the so-called “assumed name statute”; that her principal business under said lease (the rentals under which are paid by her out of her own funds) is that of slaughtering animals for food, but that as an incident thereto she carries a line of packing house products which she purchases from various packing companies, including appellant, whose bills therefor she pays as she pays all other bills; that said business is her own exclusively and appellant has and had no interest therein or control thereover; that if her telephone is listed under the name of appellant, “Hausman Brothers Packing Company,” rather than under her assumed name, “Hausman Packing Company,” it is because she had paid no attention to the slight difference and had not gone to the trouble of having the correction made when she took over the lease. All these facts are undisputed in the record.

There is no testimony that appellant ever actually entered into business at Brownsville, or did anything more than lease the abattoir, and put in a telephone, whereupon it sold and assigned to Mrs. Hausman the lease and whatever establishment it had set up there. There is no evidence that it has ever engaged in any business or had any office or agency in Brownsville. Certainly there is not even a suggestion in the record that it had any interest whatever in Brownsville at the time the suit was instituted and the plea of privilege filed and heard, so that, even if it could be inferred that it actually opened up a business on the leased premises ¡at the time of the lease, there is certainly nothing from which it could be inferred that it continued in such business and was still engaged therein at the time this action was commenced. There is no circumstance, as the majority of the court view the record, which will support an inference that appellant had an agency, or business, or agent, in Cameron county, at or near the time this action was begun. Appellee wholly failed to meet the burden resting upon him to show facts to sustain venue in Cameron county.

The privilege vouchsafed the citizen in the venue statute is a valuable one, which ought not to be denied him unless he is brought clearly within one of the named exceptions to the statute. The majority are of the opinion that appellant has not been brought within such exception, even by indulging in every inference possibly deducible from the record.

Accordingly, appellant’s motion for rehearing will be granted; the judgment of affirmance by this court set aside; the order of the trial court overruling the plea of privilege will be reversed, and judgment will be here rendered sustaining said plea of privilege.

MURRAY, Justice.

I concur in the above opinion.

FLY, Chief Justice

(dissenting).

I regret my inability to agree with the majority opinion on rehearing. The right to a trial in the county of residence or domicile is undoubtedly a sacred one, as is so often reiterated in the decisions of Texas, but there are rights just as sacred, which, should not be disregarded in apotheosizing the right of trial at home. The right of trial by jury, or before a judge when preferred tp a jury, and their contact with the witnesses, has been recognized as giving them the, vantage point over appellate judges and courts, probably far away, in making them the “exclusive judges of the credibility of witnesses and the weight to be given their testimony.” So the rule has followed, from the right conferred on juries and judges, that when there is any testimony to sustain the verdict or judgment, the appellate court has no authority to interfere. Therefore, appellate courts have no authority in matters of fact except to ascertain if there is any testimony to sustain the verdict or judgment.

This court may feel that the case on the facts should have been decided differently, but the authority to test the witnesses and weigh their testimony is lodged in the agencies of the trial court and not in this court.

It is true that Mrs. Hausman and members of the Hausman Brothers Packing Company were doing business in Laredo; and' that she is and was a director of the corporation. She was also running a business started by that corporation in Brownsville. In 1931, the corporation concluded to move its principal office to Laredo, but just about the time it was leaving Brownsville it entered into a contract of lease for three years of certain real property occupied by it for its business purposes. Mrs. Hausman was left in possession of the property; no assignment of the lease being indicated by any written instrument of record in the county, nor was the lessor apprised of any change in the lessee. Mrs. Hausman occupied the premises under and by virtue of a lease made to the corporation by the city. No one, so far as the testimony discloses, ever heard! that Mrs. Hausman was conducting an independent business, until it was desired to change the venue of this case from Cameron to Webb county, then an oral transfer of the lease was dragged out of its secret hiding place and paraded before the court. While in Brownsville a contract was made by the corporation for the use of a telephone, that telephone was in the name of the corporation, and so remained up to the date of the trial of this case. Mrs. Hausman did not know who rented the telephone, but she used it, and possibly paid for it. No satisfactory explanation is made of the lease and the telephone, and the connection of Mrs. Hausman with the principal. Mrs. Hausman swore that she was conducting an independent business, under a name so dangerously similar to the corporation name as to amount to an infringement of its right, and might subject her to the action of a court to prevent her invasion of the rights of the corporation. She was impeached by disinterested witnesses who swore that she told them that her business was a branch of the Laredo business.

The judge decided in favor of circumstances that were not and could not be explained, and against testimony weighted down with self-interest and conceived in secret, like a conspiracy, and capable of being answered only through circumstances. The court discarded the discredited, interested testimony of the witnesses desiring a change of venue.

The improbability of a business firm obtaining a lease on real estate for three years, then leaving it in the hands of a person not responsible for the rent, only on a verbal transfer of the lease, is so apparent that a court might have taken it alone on which to base its judgment. The judge had some testimony, and I feel that this court has no right or authority to reverse the judgment on the facts. I adhere to the original opinion written by me.

The appellate courts of Texas at all times emphasize with much zeal and sentiment the sacrosanct right of the debtor to be sued at his home where he can be heard by a jury of his peers, in his own vicinage; but the creditor must take his chances with peers or otherwise of any vicinage to which he may be forced by parties seeking to make the collection of debts as heavy a burden as possible.

The writer does not intend to advocate the impairment of the right of defendants to make their defenses in their own courts, before the friendly jurors therein, but he desires to uphold that other rule, just as sacred, that of the juror or judge to exclusively pass upon the credibility of witnesses and the weight to be given their testimony, and to sustain verdict or judgment where there is any testimony, direct or circumstantial, to sustain it. I think the circumstances sustain the judgment in this case.


author: LEVY, Justice

text:
    HARAWAY v. HARAWAY et al.
    No. 4314.
    Court of Civil Appeals of Texas. Texarkana.
    March 23, 1933.
    Rehearing Denied April 6, 1933.

      Long & Wortham, of Paris, and Harrell & Kerr, of Ada, Ok'l., for appellant.
    Moore & Moore, of Paris, for appellees.
   LEVY, Justice

(after stating the case as above).

There is involved in the judgment of the trial court the finding of fact that in the circumstances shown in the case there was not manifested the intention on the part of A. M. Haraway to relinquish all control over the deed to the 43.9 acres and to make! a delivery of the same to the appellant. Whether or not there was in reality a delivery of a deed with the intention to do so is ordinarily a question of fact for the jury. In view of the court’s finding of fact, and approving it as supported by the evidence, the deed was not operative and effectual as a conveyance of title to appellant. It is essential to the validity of a deed, as a general rule, that there should be a delivery of the instrument. McLaughlin v. McManigle, 63 Tex. 553; Steffian v. Bank, 69 Tex. 513, 6 S. W. 823; Cox v. Payne, 107 Tex. 115, 174 S. W. 817; Coleman v. Easton (Tex. Com. App.) 249 S. W. 200; Cardwell v. Shifflet (Tex. Com. App.) 294 S. W. 519. The authorities are in accord that the whole question of the delivery of deeds is one of intent, and that such intent may be gathered from the circumstances surrounding the transaction as well as from direct and positive proof. The evidence was without conflict that A. M. Haraway executed and had registered in the county clerk’s office of Lamar county the deed conveying to appellant 43.9 acres of land in Delta county, Tex. The deed was merely deposited with the recording officer and there was never made any actual delivery of it to appellant, and he never knew of its existence until after the death of A. M. Haraway. At a timei several months after the registration, and in January, 1924, A. M. Haraway got the deed from the county clerk and burned it, and executed a new will revoking the former will and inserting a provision otherwise devising this tract of land than to appellant individually. In these circumstances there is not disclosed an unmistakable purpose to part with all control over the deed by placing it beyond recall of the grantor. It is apparent that the grantor treated the deed as his, and that he did not relinquish the possession or consider it as delivered to the grantee. Although the deed was left in the custody of the county clerk, yet it was lodged with him alone for purposes of registration.

Considering,’ however, the question further, do the facts amount to a final delivery and acceptance as a matter of pure law? Registration of a deed is only regarded as presumptive or prima facie evidence of delivery by the grantor and acceptance by the grantee. 14 Tex. Jur. § 74, p. 838; Koppelmann v. Koppelmann, 94 Tex. 40, 57 S. W. 570. But the presumption may he rebutted. First State Bank v. Bland (Tex. Civ. App.) 291 S. W. 650; 14 Tex. Jur. § 74, p. 839; 3 Devlin on Real Estate, § 290a, p. 495. The countervailing circumstances affirmatively show that the deed was not registered in the proper county, but erroneously in a county where the land was not situated. Article 6630. That actual delivery was made was actually disproved. The grantee never took possession of the land, and he had no knowl-v edge of the existence of the deed until after the death of the grantor. Before the death of the grantor he altered his will devising the land and destroyed the deed under his control, all showing the purpose of not making a delivery of the deed or of vesting title in the grantee. The formal declaration in the first will by the grantor that he had deeded his son Ed Haraway certain property which covered his interest in his estate, considered in connection with the execution and registration of the deed, may not, in view of other circumstances, be held to conclusively evidence an absolute delivery. In ascertaining the meaning in which the formal declaration in the will was used, and the intention of execution of the deed, it would be proper to take into consideration the motives which •may reasonably be supposed to operate with him and to influence him in the disposition of his property. There was clearly manifested an intention on the part of A. M. Har-away to only effect a testamentary disposition of his property to the extent of the future interest of his son Ed Haraway. Although the deed was executed ready for delivery, and registered, but improperly so in the wrong county, yet the power of dominion over the deed was not parted with. Neither the will made at the same’ time of the deed nor the deed was legally fixed or settled past destruction or alteration. He had the power to alter the will, as he did do, and the right remained to him to destroy the deed, which was under his control, as he did do before his death. In the case an intention is not conclusively apparent and is wanting to make final and absolute delivery of the deed to become presently operative as a conveyance.

Acceptance! could not be predicated, in the circumstances, after the death of the grantor had occurred, for the evidence of intention before death to not make delivery was affirmatively manifested, and consequently the -act of delivery was in nowise a continuing one.

All the assignments of error are overruled.

It is concluded that the trial court has correctly decided the case and that the judgment should be affirmed.


author: JOHNSON, Chief Justice

text:
    LEVERETT et ux. v. LEVERETT et al.
    No. 4299.
    Court of Civil Appeals of Texas. Texarkana.
    April 6, 1933.
    Rehearing Denied April 13, 1933.

      Goree, Odell & Allen, of Fort Worth, Clifford Stone, of Henderson, and G. A. Walters, of San Saba, for appellants.
    Phillips, Trammell, Chizum, Price & Estes, of Fort Worth, Smith & West, of Henderson, Joe E. Estes, of Tyler, T. J. Arnold, of Houston, Lasseter, Simpson & Spruiell, of Tyler, and Margaret Olark, of Longview, for appel-lees.
   JOHNSON, Chief Justice

(after stating the case as above).

With reference to the purported sale or gifts of tbe interests under consideration to H. P. Leverett, the jury in answer to issues submitted found: That H.'P. Leverett and wife on or about July, 1894, entered into a contract with W. B. Leverett and C. O. Leverett, whereby 'W. B. Leverett and 0. 0. Leverett agreed to give their interest in the land in controversy to H. P. Leverett and wife, in consideration that they repair and put into living condition the house on the place, and keep and care for their mother the remainder of her natural life. The letter of W. B. Lev-erett constituted a sufficient memorandum in writing of the contract of sale or gift by him to meet the requirements of the statute of frauds, R. S. article 3995, which provides:

“No action shall be brought in any court in any of the following cases, unless the promise or agreement upon which such action shall be brought, or some memorandum thereof, shall be in writing and signed by the party to be charged therewith or by some person by him thereunto lawfully authorized:
“4. Upon any contract for the sale of real estate. * * ⅜ ”

See Mondragon v. Mondragon, 113 Tex. 404, 257 S. W. 215.

Whether the agreement, of which the letters constitute a memorandum, be treated as a gift or sale, it passed the equitable title to I-I. P. Leverett, subject to being defeated only by his failure to discharge the consideration, after the performance of which it became superior to the legal title held by W. B. Leverett, “and a court of equity will compel a specific performance, by decreeing a conveyance by the vendor, of the legal title.” Vardeman v. Lawson, 17 Tex. 11; Newsom v. Davis, 20 Tex. 419. It is not necessary that the written memorandum recite all the terms of the agreement or state the consideration. Morrison v. Dailey (Tex. Sup.) 6 S. W. 426; Fulton v. Robinson, 55 Tex. 401. For it is the contract, of which the writing is merely a memorandum, that is being enforced. The statute of frauds does not declare a verbal contract for the sale of real estate illegal or void, but merely provides a means of successful resistance when the statute is not complied with. It is not the compliance with the statute that constitutes the contract. The statute presupposes its legality and enforcement of which only is suspended unless the contract or some memorandum thereof be reduced to writing and signed by the party to be charged therewith. Simpson v. Green (Tex. Com. App.) 231 S. W. 375.

But as to C. C. Leverett, the sale or gift was purely parol concerning which nothing was written and signed by him to constitute a memorandum thereof. But appellees contend that the facts of this case take such parol sale or gift out of the statute of frauds. We cannot agree with this contention. Courts of equity have enforced verbal sales of real estate, to prevent actual fraud, when the following facts are proven: (1) Payment of the consideration by the purchaser, (2) surrender of the possession by the vendor to the vendee, and (3) the making of valuable and permanent improvement upon the land by the vendee with the consent of the vendor ; or without such improvements, the presence of such facts as would make the transaction a fraud upon the purchaser if it were not enforced. This rule is a departure from the statute: and the facts of each case where it is invoked must come within the rule; for our courts have repeatedly refused to further relax it. The statute of frauds is a well-known and easily complied with provision of our law. Its purpose is to rest the security of land titles upon a more certain basis than verbal testimony; and it is not concerned with mere injury or loss to those who fail to obey it. Hooks v. Bridgewater, 111 Tex. 122, 229 S. W. 1114, 15 A. L. R. 216. Plaintiffs’ facts do not comply with the second (2) element of the above rule of exception to the statute. At the time the verbal sale was entered into between C. C. Leverett and the plaintiffs, C. C. Leverett was not entitled to possession of the land. The mother had and was entitled to continue in the exclusive possession of the land as her homestead until her death, unless she sooner sold or abandoned it. No surrender of possession could be made by G. 0. Leverett to H. P. Leverett under the contract. • There is strong reason for the requirement of delivery of possession by the vendor to the vendee, in that without it the existence of the contract rests altogether on parol evidence, which common experience has shown to be too unstable and uncertain to be permitted to work a divestiture of title to land. If, however, the purchaser be let into possession 1)¶ the vendor, there is furnished by an affirmative act of the owner himself a corroborative fact that the contract was actually made. It is a visible affirmative corroboration of and consistent with the contention of the existence of the contract, and inconsistent with the previous rights of the grantor and a stranger to the title. However, the possession must be referable to the claim of parol sale or gift, and not consistent with any previous right of possession of the grantee in the property. When Mrs. E. A. Leverett sold to H. P. Leverett, then her homestead right ceased, and 0. 0. Leverett and H. P. Leverett, aside from the parol contract, were tenants in common, equally entitled to possession of the land. The possession of H. P. Leverett was then consistent with his right of cotenancy with O. 0. Leverett, and there could be no such surrender of possession by C. C. Leverett as would constitute a visible and affirmative corroboration of the contention of the existence of the contract, inconsistent with H. P.' Leverett’s rights as such cotenant. For this reason the verbal contract depended wholly for its proof upon parol testimony, and cannot be enforced. Munk v. Weidner, 9 Tex. Civ. App. 491, 29 S. W. 409; King v. Hartley, 71 Ind. App. 1, 123 N. E. 728. Proof of payment is not sufficient corroboration because it is wholly dependent upon parol testimony. Improvements are not sufficient because not inconsistent with the rights of cotenancy, and such equities are adjusted upon partition between the cotenants. Hooks v. Bridgewater, supra.

The jury found in favor of plaintiffs on each of their pleas of limitation, and the finding is supported by the evidence. But the appellants claim that there was no proof that notice was given to C. C. Leverett of H. P. Leverett’s adverse claim. The law is well settled that before a cotenant in possession can start the statutes of limitation running against his cotenants it must appear that he had repudiated their title and is holding adversely to it; and notice of such adverse holding must be brought home to them, either by information to this effect given to them by the cotenant asserting the adverse right, or by such acts of unequivocal notoriety in the assertion of such adverse and hostile claim that they will be presumed to have notice of such adverse claim. Fowler v. Hardee (Tex. Civ. App.) 16 S.W.(2d) 154; Rivers v. Griffin (Tex. Civ. App.) 16 S.W.(2d) 874. And the registration of a deed from one eotenant to a cotenant in possession will not of itself operate as notice to the other co-tenants of the adverse character of the possession of the cotenant grantee. Arrington v. McDaniel (Tex. Com. App.) 14 S.W.(2d) 1009; Ford v. Weigher (Tex. Oiv. App.) 253 S. W. 958. But the contracts of sale or gift found by the jury to have been made by C. C. Leverett and W. B. Leverett to H. P. Leverett constituted sufficient notice within themselves that H. P. Leverett’s subsequent possession was adverse, and the consideration having been fully performed upon the death of Mrs. E. A. Leverett, there was no impediment to the running of the statute of limitation subsequent thereto. However, appellants contend there was a break in the possession of H. P. Leverett by virtue of the execution by H. P. Leverett and wife of an oil and gas lease conveying seven-eighths of the minerals in and under 133 acres of the land to G. B. Turner, on December 13, 1919. It was what is known as a producer’s oil and gas-lease, and there being no production thereunder, the mineral interest thereby conveyed reverted to lessors at the expiration of its term, five years. The rule applicable to the facts under consideration in this case appears to have been well stated in the case of Clements v. Texas Co. (Tex. Civ. App.) 273 S. W. 993, 1005, as follows: “But a severance by one in possession, who has not yet matured a title, does not abandon, limit, or qualify his possession for the purpose of ripening a title against the true owner out of possession; and that, as against such disseized owner, the continued possession of a trespasser after severance, as before, is adverse, and that such possession continued by either the trespasser or the third person to whom he severs will mature a title by limitation to the entire tract as against such disseized owner.”. The assignment is overruled.

Appellants have presented a number of other assignments, each of which we have duly considered; but, finding no error presented, they are respectfully overruled.

The judgment of the trial court is affirmed.