author: JONES, C. J.

text:
    TUNNELL et al. v. MOORE et al.
    No. 11052.
    Court of Civil Appeals of Texas. Dallas.
    Sept. 24, 1932.
    Rehearing Denied Oct. 22, 1932.
    Will D. Pace and Butler, Price & Maynor, all of Tyler, for appellants.
    Vinson, Elkins, Sweeton & Weems, and David T. Searls, all of Houston, for appellees.
   JONES, C. J.

This suit was filed in the district court of Van Zandt county by a number of plaintiffs against a number of defendants in form of trespass to try title to thirty acres of land situated in said county, and described in the petition by metes and bounds. Appellants, H. B. Tunnell, W. W. Latham, and Dorothy Latham, minor daughter of W. B. Latham and suing through H. B. Tunnell ,as next friend, as alleged owners of a one-half interest in the land, filed a plea of intervention, also in form of trespass to try title. Appellants, as interveners, made the same parties defendant as the plaintiffs made in their petition. These parties, appellees herein, are: Otto Prassel, the Pure Oil Company, the Sun Oil Company, the East Texas Oil Corporation, and J. S. Kimbrough.

Each appellee, as defendant in the intervention filed by appellants, answered by a general demurrer, general denial, a plea of not guilty, a plea of the three, five, and ten year statutes of limitation, and a plea of innocent .purchaser.

The trial court, on a joint motion of the parties, entered an order of severance of the case, as made by plaintiffs, from the case, as made 'by interveners, and gave to the case made by plaintiffs a separate docket number from the original docket number. The two cases were set for trial on the same day, and an agreed judgment for money damages was entered • in favor of plaintiffs in their suit. After this agreed judgment was entered, appellants’ case went to trial to a jury on the petition of intervention of appellants and the respective answers of appellees.

At the close of appellants’ testimony, ap-pellees filed a motion for an instructed verdict in their favor. Tliis motion was granted and, on tlie instructed verdict, a judgment was entered against appellants and in favor of appellees. From this judgment appellants have duly perfected an appeal to this court and duly raised hy proper assignments of error the questions herein discussed. The following are the facts:

Appellants’ evidence shows that J. M. Tun-nell acquired title to the land in controversy on September 29, 1896; that at this time J. M. Tunnell was a married man, and that the land was community property of himself and his wife; that in September, 1922, Mrs. J. M. Tunnell died, leaving as her only heirs at law the two children of her marriage, H. B. Tunnell and a daughter who married W. W. Latham; that the daughter, Mrs. W. W. Latham, died previous to the filing of this suit, leaving as her only heir at law a minor daughter, Dorothy Latham. The husband, J. M. Tunnell, is still living.

Appellees proved, on cross-examination of J. M. Tunnell, that in 1905 he had made an oral transfer of the land to J: J. Brawner, had received the purchase price, and' delivered possession of the land. In reference to the oral sale, this witness stated: “I have forgotten, but there was a cause, a reason why the deed was not made, I don’t know what, but there was a hitch, me and Jim Brawner agreed not to make any title at the present time. I wasn’t living on it at the time I sold •it to him. I had moved to Smith County.” This witness also testified that neither he nor his wife during her lifetime asserted any claim or title to the land after this oral sale. This witness further testified that: “I signed a deed to this property in 1927, and at the time my wife had been dead since 1922, and I have never signed any other deed to this land that I have any knowledge of.”

Appellants contend that, by this evidence, they made a prima facie case of their ownership of Mrs. J. M. Turinell’s community interest in the land, and that such prima face case was not overcome, as a matter of law, by appellees? attempted proof of an outstanding title in J. J. Brawner, either by the oral sale of the land, or by the fact that, in 1927, J. M. Tunnell signed a deed to the land in. question.

Appellees contend that, while the evidence does not show that all of the necessary elements "to consummate a valid parol sale is shown by the testimony, nevertheless, as appellants permitted evidence of a parol sale without objection, they cannot on appeal question the validity of such'sale; and they further contend that, in view of this parol sale and in view of the testimony that for some reason, not remembered by the witness, a deed was not executed at the time of the oral sale, it follows that the evidence of Tunnell that he signed a deed to the land must refer to the execution of a deed in conformity to the oral sale.

These two contentions present the one issue as to whether the evidence, as a matter of law, establishes an outstanding title to the land in Brawner. If the evidence does so establish this fact, then the court was warranted in giving peremptory instructions; if it does not, then the court committed reversible error in giving such instruction.

Our statute of conveyances is article 1288, R. O. S. 1925, and reads: “No éstate of inheritance or freehold, or for a term of more than one year, in lands and tenements, shall be conveyed from one to another, unless the conveyance be declared by an instrument in writing, subscribed and delivered by the party disposing of the same, or by his agent thereunto authorized by writing.”

Applying this statute to the instant case and excluding for the time being the evidence as to the signing of a deed to this land by H. B. Tunnell, twenty-two years after the oral sale, it is clear that the oral sale, though attended by the payment of the consideration and the surrender of possession of the land to the vendee, did not pass to such vendee title to the land, and that title remained in J. M. Tunnell. Courts of equity, however, have grafted onto this statute an exception and allow a valid oral sale of land under conditions, in which it is shown that an oral sale of land was made; that in pursuance of such sale the consideration was paid by the ven-dee to the vendor; that possession of the land was surrendered by the vendor to the vendee, and that such possession was followed by the making of valuable and permanent improvements by the vendee; or, in lieu of such improvements, other facts existed which would make the transaction a fraud on the vendee if the oral sale be not enforced. Hooks v. Bridgewater, 111 Tex. 122, 229 S. W. 1114, 1116, 15 A. L. R. 216; Bradley v. Owsley, 74 Tex. 71, 11 S. W. 1052; Robertson v. Simpkins, 61 Tex. 259; Cobb v. Johnson, 101 Tex. 440, 108 S. W. 811; Page v. Vaughan (Tex. Civ. App.) 173 S. W. 541; Wells v. Foreman (Tex. Civ. App.) 199 S. W. 1174; Bringhurst et al. v. Texas Co. et al., 39 Tex. Civ. App. 500, 87 S. W. 893.

While in the instant case the evidence shows an agreed oral sale, the payment of the consideration, and possession under such sale, it fails to show any valuable and permanent improvements made by the vendee -on the faith of the oral sale, and therefore falls short of showing a valid oral sale of the land. On this question, Chief Justice Phillips, speaking for the Supreme Court, in Hooks v. Bridgewater, supra, says: “From an early time it has been the rule of this court, stead-íly adhered to, that to relieve a parol sale of land from the operation of the statute of frauds, three things were necessary: 1. Payment of the consideration, whether it fee in money or services. 2. Possession toy the ven-dee. And 3. The making fey the vendee of valuable and permanent improvements upon the land 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. Payment of the consideration, though it be a payment in full, is not sufficient. This has been the law since Garner v. Stubblefield, 5 Tex. 552. Nor is possession of the premises by the vendee. Ann Berta Lodge v. Leverton, 42 Tex. 18. Each of these three elements is indispensable, and they must all exist.”

What is meant by the phrase “an outstanding title in a third party” when used in this character of suit? We think it necessarily means such a title as that such third party could recover the land from either party in a trespass to try title suit. 6 Words and Phrases, First Series, p. 5123; 9 R. C. L. p. 871; Shields v. Hunt, 45 Tex. 424, 428. Appellees did not show such outstanding title in Brawner toy the proof made of the oral sale.

Then again, a title resting in an oral sale of land is an equitable title, and under the following authorities, before such title will become an effectual bar to appellants’ suit, appellees must connect themselves therewith: Shields v. Hunt, supra; Trimble v. Burroughs, 52 Tex. Civ. App. 266, 113 S. W. 551; Capt v. Stubbs, 68 Tex. 222, 4 S. W. 467; Johnson’s Adm’r v. Timmons, 50 Tex. 521; Fitch v. Boyer, 51 Tex. 336. Appel-lees offered no evidence showing their connection with the Brawner title, even.if there had been such title in Brawner to the land.

When appellees undertook the defense of proving an outstanding title in a third person, it was necessary for such defense that they prove such title by legal and competent evidence, and the fact that appellants entered no objection to the evidence offered in the attempt of appellees to prove the outstanding title by parol sale availed appellees nothing. .The failure to object to the evidence did not establish for appellees a valid title rest-. ing in parol.

Does the evidence of J. M. Tunnell, to the effect that he signed the deed to the property in question in 1927, conclusively establish the fact that such deed was executed and delivered to the vendee? Under the statute of conveyances, above quoted, no valid conveyance of land exists unless the instrument convey ing the land ■ is in writing and subscribed and delivered by the vendor to vendee. This evidence does show that a deed to the property was signed by the vendor, but does not show delivery to the vendee, a necessary element for the conveyance of land in this state. The trial court was not warranted in assuming, as a matter of law, that' such delivery was made, for at most the evidence only raises a jury question as to the delivery of the deed.

By supplemental brief, filed in this court September 20, 1932, three days after the submission of the case, appellees urge that the petition is fatally defective, in that appellants are suing as heirs of Mrs. J. M. Tun-nell, deceased, and do not allege that no administration of the estate of deceased had ■been had, and that none was necessary. This supplemental brief was filed .without an order of this court permitting its filing, and under rule 37 governing this court it cannot be considered. However, if this question had been properly presented to this court, we do not think under the particular facts of this case the rule of law invoked should be given application. Richardson et al. v. Vaughan et ux., 86 Tex. 93, 23 S. W. 640; Laas v. Seidel, 95 Tex. 442, 67 S. W. 1015; and a number of other cases, announce the rule that, when heirs of either resident or nonresident decedent seek by suit to recover assets of an ancestor, they must plead and prove either that there is no administration upon the estate, and no need of any, or that the administration has been had and closed. This rule, howr ever, is not universally applied, but has been, subjected to exceptions in particular cases. Richardson v. Vaughan, supra; Walker v.. Abercrombie, 61 Tex. 69. While the facts of' the reported eases, allowing exceptions, are not similar to the facts of the instant case, yet we think that the principle upon which they are decided applies.

The petition of intervention was filed January 6, 1931, more than eight years after the, death of Mrs. J. M. Tunnell, and more thanj four years after the statutory time within' which administration on deceased’s estate could have been begun. An administration is" primarily for the benefit of the creditors of a deceased’s estate. There is no direct evidence that any administration had been taken out on Mrs. Tunnell’s estate, but the facts of this case clearly negative the idea that there had been any such administration. Un-' der the statute fixing the period of four years j as the limit for beginning administration for| the benefit of creditors, and this period hav-' ing long since elapsed, it is conclusively presumed that no creditors of Mrs. Tunnell’s es-1 fate existed at the time of her death, and' therefore no administration was necessary. The reason for the rule requiring such an al-¡ legation, in a petition toy heirs to recover property from a deceased ancestor, is that,| while on the death of the' ancestor such prop-. erty descended to the heirs, it is charged with ■ the debts of the ancestor, for which reason the petition of such heirs suing for the property should show hy proper allegation that the property for which they sue is owned exclusively hy them and is not subject to any indebtedness of their decedent.

The petition of intervention is in the form of trespass to try title, and only alleges the ownership of the land in controversy in appellants as interveners, and does not affirmatively show how title to the land became vested in appellants, or that they are suing as heirs of a decedent. The proof offered by appellants does show that their claim of ownership rested entirely on the fact that they were the heirs of Mrs. Tunnell. Their plea of intervention authorized this proof. If it should be held necessary to show by proof that no administration was had on Mrs. Tun-nell’s estate, and that none was necessary, there is shown a clear implication from the facts in evidence that no administration was taken out, and a conclusive presumption that none was necessary. We therefore hold that, if this issue had been properly presented by appellees, theré is no merit to such contention.

It necessarily follows that the trial court erred in peremptorily instructing the jury in favor of appellees, and that this case must be reversed and remanded.

Reversed and remanded.


source: Caselaw Access Project

license: Public Domain

text:
    TEXAS EMPLOYERS’ INS. ASS’N v. BOECKER.
    No. 11229.
    Court of Civil Appeals of Texas. Dallas.
    Sept. 17, 1932.
    Rehearing Denied Oct. 15, 1932.
    Lawther, Cox & Cramer and James P. Swift, all of Dallas, for plaintiff in error.
    W. E. Johnson, of Dallas, for defendant in error.
   JONES, C. J.

In a suit under the Workmen’s Compensation Law (Vernon’s Ann. Civ. St. ant. 8308 et seg.), defendant in error, Mrs. Elisa Boecker, recovered a lump sum judgment in the sum of $3,329.48 against plaintiff in error, Texas Employers’ Insurance Association. .. This judgment was awarded defendant in error as compensation for the death of her.: husband while an employee of the McKenzie Construction Company, which carried compensation insurance with plaintiff in.error..

The only contested issue in the trial court was whether deceased received his fatal injuries while in the scope of his employment. This issue was submitted to the jury in the form of two special issues, and the verdict of the jury was in favor of defendant in error. The only contested issue in this court is whether the findings of the jury find support in the evidence. The following are th.e facts:

The city of Dallas caused to be constructed a public improvement known as the “Good Street Underpass.” The general construction of this improvement was being done by the Vilbig Construction Company under contract with the city of Dallas. The Southwestern Bell Telephone Company had theretofore constructed a conduit for the laying of its wires underground, and as the Good street underpass reauired considerable excavation, the city of Dallas reauired such telephone company to lower its conduit. This work was contracted to be performed by the McKenzie Construction Company, and,its performance, at the place of the underpass, required the digging of a deep ditch. This conduit was laid on Floyd street, which crosses Good street, where the underpass was under construction, at right angles; Good street running substantially north and south, Floyd street running substantially east and west. Hawkins street runs parallel with Good street, and is the first street east. To the south of Floyd street, and south of the underpass being constructed, are two railroad tracks, and the next street to the south, running substantially east and west, is Elm street; Floyd street, Good street, and Hawkins street, in the vicinity of this construction, were closed to general traffic. The immediate vicinity of the work on the Good street underpass was inclosed by the Vilbig Company by a barricade, and the work being done on the conduit by the McKenzie Construction Company was within this barricade. At the time in question, the ditch for -the laying of the conduit had been opened for a depth of several feet from Hawkins street across Good street, and some distance west of same; about a hundred feet south of this open ditch the builder of the underpass had erected a tower and had dug a pit, this tower and pit were between Elm street and Floyd street and was withiii the Vilbig barricade. The tower and pit were in Good street, and on the east side thereof; to the north of Floyd street, and on the west side of Good street, was located a shanty in which the McKenzie Construction Company kept certain tools and the lanterns to be put out at night as danger signals along the construction of the conduit; other property used by the McKenzie Construction Company was located at different points along Hawkins street, some of it at points on the south side of Floyd street.

The deceased was employed by the McKenzie Construction Company as a night watchman, and it was his duty to report for his work about 4:30 or 5 o’clock p. m. It was necessary for him to clean and refill his lanterns preparatory to putting them out when darkness came, and to perform the special duties of a night watchman in respect to protecting McKenzie Construction Company’s property on the ground, and in warning travelers who might attempt to use the closed street. Deceased left his home in Oak Cliff on the street car, got off on Main street at some place south of this work, had necessarily traveled in a somewhat northerly direction, entered the barricade, and was standing at the pit, in the immediate vicinity of the said tower, when he was struck by a truck belonging to the Vilbig Construction Company, and received injuries from which he died. From the time he entered the barricade until the time he was injured, the deceased appears to have been seen by but one person, an employee of the Vilbig Construction Company, who was in the pit and called to deceased to get away from the place where he was standing. Belie.ving that the deceased had not heard the warning, this employee climbed out of the pit, by means of a ladder, in order to direct deceased to leave such place, but when he emerged from the pit, deceased had been injured. The injury was on Saturday afternoon between 4:30 and 5 o’clock, and the employees of the McKenzie Construction Company had quit work that afternoon at one o’clock, except one employee, who was waiting at the tool shanty until deceased should arrive, when he was to give to deceased his weekly pay envelope and leave the ground in his care as night watchman. This is substantially the material evidence given at the trial of the case, and is undisputed in any material part.

‘ The court submitted two special issues, in answer to which the jury found: (1) That “the injuries to deceased, A. W. Boecker, had to do with and originated in the work, business, trade or profession of the McKenzie Construction Company”; (2) that “the injuries to deceased, A. W. Boecker, were received while the deceased was engaged in or about the furtherance of. affairs or business of the McKenzie Construction Company.” It was agreed between the parties that all other facts necessary for a judgment in favor of defendant in error existed, and on this agreement and the verdict of the jury, the court entered the judgment in favor of defendant in error.

Plaintiff in error contended that this evidence only established the fact that deceased was injured on his way to work; that his injuries occurred before he reached his place of employment, which is claimed to be the immediate place where, the conduit is being constructed, or the tool shanty, where he was to report and relieve the other employee; that the injuries occurred while deceased was on the premises of another not under the control of the McKenzie Construction Company; that the injuries occurred after he had left his intended route of travel to his work and had turned aside several feet to view the work in the pit above described, and that therefore the deceased was not doing any work in the furtherance of his employer’s business, but on the contrary, was watching the work of the Vilbig Construction Company when he received his injuries.

Defendant in error contends that when the deceased entered the .barricade he had arrived at the zone of his employment and received his injuries within such zone, and at such time when he had entered upon his work as night watchman; that deceased’s work should not be restricted to the mere act of reporting to the tool shanty and the placing of his lanterns, for the reason that the laying of the conduit in point of place was so related to the work of the construction of the underpass, that the territory within the barricade of the construction company was necessarily the territory within the zone of the McKenzie work, and that an issue of fact, at least, was raised in reference to whether deceased had arrived at his place of work for the performance of his duties as a night watchman.

We are inclined 'to adopt defendant in error’s view of this case. The rule as to when and where an employee becomes engaged in his work under conditions surrounding deceased at the time of his death is so succinctly stated by the Supreme Court of the United States in the ease of Bountiful Brick Company et al. v. Giles, 276 U. S. 154, 48 S. Ct. 221, 222, 72 L. Ed. 507, 66 A. L. R. 1402, that we quote the following therefrom: “And employment inclfides not only the actual doing of the work, but a reasonable margin of time and space necessary to be used in passing to and from the place where the work is to be done. If the employee be injured while passing, with the express or implied consent of the employer, to or from his work by a way over the employer’s premises, or over those of another in such proximity and relation as to be in practical effect' a part of the employer’s premises, the injury is one arising out of and in the course of the employment as much as though it had happened while the employee was engaged in his work at the place of its performance. In other words, the employment may begin in point of time before the work is entered upon and in point of space before the place where the work is to be done is reached.”

We are of the opinion that the place within the said barricade, where deceased received his injuries, while, perhaps, not in its strictest sense, on his employer’s premises, still such place was in such proximity and relation to such premises as to be “in practical effect a part of such employer’s premises.” The deceased being, in legal effect, on a part of the premises of his employer, at a time when his work as night watchman began, and the injury resulting from a hazard of the place of his employment, we are of the opinion that the trial court did not err in overruling the requested peremptory instructions, and in submitting the issue to the jury. In the matter of passing upon the effect of evidence in the light of a requested peremptory instruction, every favorable inference that may properly be drawn from such evidence must be construed by the trial court as a fact against the requested instruction. In the instant ease, the jury could have drawn the inference from the evidence that deceased had stopped at the place of his injuries to make a survey of the premises in order to determine at what point warning lanterns should be placed; the jury could also conclude from the evidence {hat deceased was on his way, within his employer’s premises, to the tool shanty in order to begin the actual work of his employment when injured. Either inference is fatal to plaintiff in error’s right for a peremptory instruction. All of plaintiff in error’s assignments of error are overruled. The following authorities sustain this conqlusion: Petroleum Casualty Co. v. Green (Tex. Civ. App.) 11 S.W.(2d) 388; Maryland Casualty Co. v. Smith (Tex. Civ. App.) 40 S.W.(2d) 913; Federal Surety Co. v. Ragle (Tex. Com. App.) 40 S.W.(2d) 63; United States Casualty Co. v. Hardie (Tex. Com. App.) 299 S. W. 871; Lumberman’s Reciprocal Association v. Behnken, 112 Tex. 103, 246 S. W. 72, 28 A. L. R. 1402; Wynn v. Southern Surety Co. (Tex. Civ. App.) 26 S. W.(2d) 691; Security Union Insurance Co. v. McClurkin (Tex. Civ. App.) 35 S.W.(2d) 240; Bountiful Brick Co. et al. v. Giles, supra; Watts v. Continental Casualty Co. (Tex. Civ. App.) 18 S.W.(2d) 591.

It necessarily follows that the judgment of the lower court should be affirmed, and it to so ordered.

Affirmed.


author: JACKSON, J.

text:
    AMARILLO MUT. BENEV. ASS’N et al. v. SIMS et al.
    No. 3907.
    Court of Civil Appeals of Texas. Amarillo.
    June 15, 1932.
    Rehearing Denied Oct. 19, 1932.

      Cooper & Lumpkin, of Amarillo, for appellants.
    Reynolds & Heare, of Shamrock, for appel-lees;
   JACKSON, J.

The plaintiff,' Mrs. Fannie J. Sims, joined pro forma by her husband Robert X. Sims, petitioned the district judge of Wheeler county, Tex., in vacation, to issue a temporary injunction against the defendants, Amarillo Mutual Benevolent Association and its president J. R. Durrett.

She 'alleges; That the association is a duly organized mutual life insurance company engaged in writing insurance. That about December 31, 1931, said association issued to her certificate or policy No. 4177, in lieu of a former certificate theretofore issued to and held by her and that she has been a member of said association in good standing for nine years. That her certificate or policy of insurance in said association provides that:

“The aforesaid member agrees to pay all assessments levied as needed by the Board of Directors as set out in Article 6 hereof, within fifteen days from date of such assessment; and to pay semi-annual dues in the sum of $1.00 on or before May 1st and $1.00 on or before November 1st of each year; and failure ' to pay any assessment or semi-annual dues within the time limit specified shall automatically lapse this certificate which shall in such event remain null and void and without force or effect unless and until reinstated as provided in Art. VII of the Bylaws.
“It shall be the duty of the member holder hereof to keep the Secretary of this Association informed at all times of his or her proper address and in sending out notices of assessments, dues, or annual meetings, it shall be necessary only for this Association to mail a written or printed notice, first class, to the latest record address of the insured and failure of the insured to receive mails or, for any other reason shall entail no liability upon this Association.”

That said certificate is valid and outstanding and she is entitled to receive notice of all assessments levied against the members in order that she may pay such assessments within the time prescribed to prevent her insurance from' lapsing for nonpayment of such assessments. That she has for many years made prompt and satisfactory payment of such dues, assessments, and premiums as the defendants have required. That the defendants are asserting that she is not a member in good standing and refusing to mail to her notice of the assessments levied. That she has no other way of ascertaining that assessments have been levied and hence cannot pay such assessments, the failure to pay any one of which, within the time, would lapse her certificate. That she has tendered all assessments about which she has learned, all of which have been refused by the defendants, who contend that she is not a. member and not entitled to the rights and benefits as a member under her certificate. That owing to the condition of her health at this time she could not obtain any character of insurance on her life, and, if her policy is permitted to lapse or the defendants are permitted to terminate her insurance, as herein alleged, it would leave her without life insurance.

That the Amarillo Mutual Benevolent Association is a mutual insurance company and depends upon the payment of assessments by its members for its funds with which to pay off all legitimate demands against it. That it is without any property with which it could respond in damages and it would work a great injustice and injury and irreparable damages to her if her policy should lapse or be canceled, and that she has no adequate remedy at law for her protection.

The plaintiff prays that the court issue a temporary writ restraining the defendants from canceling her policy of insurance and commanding them to notify her of all assessments levied upon the members of the association for which she would be liable as a member of said association, and that, upon a final hearing, she have judgment affirming the validity and good standing of her certificate and making permanent such writ of injunction, etc.

On hearing this petition in vacation the judge entered his fiat to the effect that a temporary writ should be granted, and directed the clerk of the court to issue such writ upon the plaintiffs, making and delivering to the clerk a good and sufficient bond, conditioned as the law requires, in the sum of ⅞500.

The bond was filed and approved and the writ issued and served, restraining the defendants and each of them from canceling the certificate of plaintiff and commanding the defendants to notify the plaintiff of all assessments and dues made and levied against members of the.Amarillo Mutual Benevolent Association until the further orders of the court, from which order this appeal is prosecuted.

In our opinion the petition is sufficient to authorize the. court to order the issuance of a writ temporarily restraining the defendants from canceling plaintiff’s certificate.

“In general, it may be stated that it is the duty of the trial court to grant a temporary writ of injunction when it is made ■to appear that there is a substantial controversy between the parties, and that one of the parties is committing an act or threatening the immediate commission of an act that will destroy the status quo of the controversy, before a full hearing can be had on the merits of the case and final judgment pronounced.” City of Farmersville v. Texas-Louisiana Power Co. et al. (Tex. Civ. App.) 33 S.W.(2d) 272, 274.

“The issuance of a temporary writ of injunction is merely a provisional remedy allowed by the court, before the trial of this case on its merits, for the sole purpose'of preserving the subject-matter of the controversy as it existed at the time the suit was instituted. * * * In any particular case the issuance of a temporary writ of injunction rests largely in the discretion of the trial court and his action in either granting or refusing to grant such writ, cannot be disturbed, unless ⅛ be made to appear that the discretion thus lodged was abused by the order made.” Midland Building & Loan Association v. Sparks Chapel Colored M. E. Church in America et al. (Tex. Civ. App.) 35 S.W.(2d) 774, 775.
“The law is well settled in this state that the purpose of the issuance of a temporary injunction is to maintain the status quo in regard to the matter in controversy, and not to determine the respective rights of the parties under the cause of action asserted or defenses urged.” James v. E. Weinstein & Sons (Tex. Com. App.) 12 S.W.(2d) 959, 960, and authorities cited.

Under the allegations in the petition, the court erred in directing the issuance of the mandatory part of the temporary injunction which commanded the defendants to notify the plaintiff of all assessments and dues made and levied against each member of the Amarillo Mutual Benevolent Association until the further orders of the district court to be held in Wheeler county on the first Monday in August, 1932.

A compliance with the mandatory part of the order would change the status quo and could unnecessarily complicate the adjudication of the ease at a final hearing on the merits. National Mutual Accident Ins. Co. v. Davis (Tex. Civ. App.) 46 S.W. (2d) 351.

“Mandatory injunctions should rarely be granted except on final hearing and only where a plain and imperative case for active interference is shown and then only to execute the judgment or decree of the court. To authorize the issuance of a mandatory injunction in such case, the invasion of the right must be material and substantial. The right of complainant must be clear and unmistakable on the law and the facts and there must exist an urgent and paramount necessity for the issuing of the writ in order to prevent extreme or other serious damage which would ensue from withholding it.” 32 C. J. 25. See, also, McFadden v. Wiess (Tex. Civ. App.) 168 S. W. 486.

The judgment of the trial court is reformed to the extent of dissolving the temporary injunction commanding the defendants to furnish the plaintiff with notice as directed, but the part of the judgment which enjoins the defendants from canceling plaintiff’s certificate or policy of insurance is affirmed.

Reformed and affirmed.

H A LL, O. J., not sitting.


author: BARCUS, J.

text:
    COLEBURN v. UNDERWOOD et al.
    No. 1272.
    Court of Civil Appeals of Texas. Waco.
    Sept. 29, 1932.

      T. Wesley Hook, of Alvarado, for appellant.
    A. C. Chrisman, Penn J. Jackson, and Roy Anderson, all of'Cleburne, for appellees.
   BARCUS, J.

On September 17,1929, W. I. Sherman died; leaving a surviving wife. She died in June, 1930, intestate, leaving appellees as her nearest of kin. Mr. and Mrs. Sherman owned some personal property 'consisting of household goods, farming implements, and work stock, and 86 acres of land, said land being at the time of his death occupied by them as their homestead. At the time of Mr. Sherman’s death there was incurred certain expenses for his last sickness and funeral, and in addition thereto he owed a number of small bills. He left a will which was probated leaving all of his property to his wife. The will provided that out of his estate his debts should be paid. After Mrs. Sherman’s death, appellant, J. H. Coleburn, was appointed administrator of the estate of W. I. Sherman; with the will annexed. He brought this suit against appellees seeking to subject both the personal property and the real estate to the payment of the unpaid debts of Mr. Sherman and the debt incurred in burying Mr. Sherman.

The cause was tried to the court and resulted in judgment being entered against ap-pellees for $75, the value of the personal property belonging to the estate of Mr. Sherman which the court found they had appropriated, and refusing to subject the land to sale to pay the remaining portion of said debts.

Appellant complains of that portion of the judgment which held that the land was not subject to the payment of the debts. It appears that the land in controversy was at the time Mr. Sherman died and had been for many years the homestead of Mr. and Mrs. Sherman. The record further shows that none of the debts claimed by the administrator to be due are for purchase money or improvements. These facts being true, the probate court could not order the homestead sold to pay said debts; neither was the homestead liable therefor or subject to be sold therefor. At the time of Mr. Sherman’s death, he left surviving his- wife, who, under the law, was a constituent member of the family. By his will he left the homestead to her. Our law is now well settled that the homestead vests in the heirs of the deceased owner, free from community debts, if any constituent member of the family remains to take and occupy the same. Johnson v. Hampton, 117 Tex. 580, 8 S.W.(2d) 640; Mil-ner v. McDaniel (Tex. Sup.) 36 S.W.(2d) 992; Cline v. Niblo, 117 Tex. 474, 8 S.W.(2d) 633, 66 A. L. R. 916. Appellant’s assignments of error are all overruled.

Appellees by cross-assignments of error contend that the evidence is insufficient to support the judgment rendered against them for $75. Without quoting the testimony, we think it is sufficient to support the court’s finding that appellees received and converted to their own use and benefit $75 worth of the personal property which belonged to the estate of W. I. Sherman, deceased. Said cross-assignments are therefore overruled, and that portion of the judgment is affirmed.

The judgment of the trial court is affirmed.


author: PELPHREY, O. J.

text:
    POPE et al. v. STATE et al.
    No. 2717.
    Court of Civil Appeals of Texas. El Paso.
    Sept. 29, 1932.
    H. S. Bonham, of Corpus Christ!, for plaintiffs in error.
    A. M. Turney, County Atty., of Alpine, for defendants in error.
   PELPHREY, O. J.

This appeal has been perfected from a judgment against W. E. Pope and G. S. Combs, independent executor of the D. S. Combs’ Estate, for $1,725.91, taxes, penalties, and interest due the state of Texas on certain lands in Brewster county, Tex., for the years of 1921, 1923, and 1925.

The judgment further decrees a foreclosure of the tax lien on the property. Plaintiffs in error have filed no briefs in this court, and, therefore, the judgment should he affirmed unless there is error apparent on the face of the record.

An examination of defendants in error’s petition discloses that the suit was filed against W. E. Pope and G. S. Combs (lien holder), while the judgment .is against Pope and G. S. Combs, independent executor of the D. S. Combs’ Estate.

Article 7328, Revised Statutes, provides: “The proper persons, including all record lien holders, shall be made parties defendant in such suit, and shall be served with process and other proceedings had therein as provided by law in ordinary foreclosure suits in the district courts of this State;” and therefore lienholders of record are necessary parties in a suit to foreclose a tax lien. State Mortgage Corporation v. Magee (Tex. Civ. App.) 27 S.W.(2d) 864.

It is true that here judgment is rendered against G. S. Combs as independent executor of the estate of D. S. Combs, but there is no pleading to support such judgment. G. S. Combs, as independent executor, was not made a party to the suit by the petition, and no relief was prayed for against the estate of D. S. Combs or against G. S. Combs, in his representative capacity.

We are of the opinion that these matters constitute error apparent on the face of the record and call for a reversal of the judgment.

The judgment of the trial court is therefore reversed and the cause remanded.

Reversed and remanded.


text:
    SCHROCK v. HENDERSON GRAIN CO.
    No. 3873.
    Court of Civil Appeals of Texas. Amarillo.
    Sept. 28, 1932.
    W. W. Kirk, of Plainview, for' appellant.
    H. M. LaFont, of Plainview, for appellee.
   JACKSON, J.

The plaintiff, Henderson Grain Company, a corporation, sued the defendant A. H. Schrock in justice court, precinct No. 1, Hale county, Tex., to recover a balance of $142,97 on a note dated April 15, 1930, given by defendant to the plaintiff. On October 24, 1931, the case was tried before the justice and the note declared void and without consideration and judgment rendered for defendant. From this judgment the plaintiff prosecuted an appeal to the county court of Hale county. The' case was tried de novo and judgment rendered against the appellant herein for the amount of the note, interest, costs, and attorney’s fees, from which judgment this appeal is prosecuted.

The appellant presents as error the action of the trial court in refusing to permit him, on appellee’s objection, to file his sworn plea of failure of consideration in the county court. The record shows that on January 6, 1932, the case was called in the county court and all parties announced ready for trial and by order of the court set for trial on the following morning at 9 o’clock. That on January 6th appellant’s attorney prepared a plea of failure of consideration, which was verified before the county judge while on the bench, who placed the pleading in his docket. That the attorney for appellee knew that appellant had prepared and left with the judge the plea of failure of consideration. That on the following morning, before the jurors were examined, the attorney for appellant obtained his plea from the court and requested the clerk to file it. .That, appellee’s attorney objected to the filing of the plea of failure of consideration, which objection was sustained by the court, and appellant was not permitted to file said plea or read it to the jury.

Article 958, R. S., provides: “Either party may plead any new matter in the county or district court which was not'presented in the court below; but no new cause of action shall be set up by the plaintiff, nor shall any set-off or counterclaim be set up by the defendant which was not pleaded in the court below. In all such cases the pleadings shall be in writing and filed in the cause before the parties have announced ready for trial.”

“The plea of failure of consideration was proper to be set up in the county court, though not pleaded in the justice court. When a cause is appealed from the justice to the county court, the trial is de novo, and ei-tlier party may plead any matter not pleaded tielow, except a new cause of action by plaintiff, and counterclaim or set-off by defendant.” McDonald v. Young (Tex. Civ. App.) 41 S. W. 885, 886; Brigman v. Aultman, Miller & Co. (Tex. Civ. App.) 55 S. W. 509.

It is not contended that if appellant had been permitted to file his defense of failure of consideration it would have required a postponement or continuance of the case.

We gather from the record that the court refused to permit the filing of the plea of failure of consideration because he was of the opinion that the plea was offered for filing too late. This holding, in our opinion, constituted error. World Company v. Dow, 116 Tex. 146, 287 S. W. 241.

The judgment is reversed, and the cause remanded.


author: ALEXANDER, J.

text:
    THE PRAETORIANS v. STATE et al.
    No. 1241.
    Court of Civil Appeals of Texas. Waco.
    Sept. 22, 1932.
    Rehearing Denied Oct. 20, 1932.
    T. W. Davidson and J. W. Randall, both of Dallas, for appellant.
    William McCraw, Tom C. Clark, Burgess, Burgess, Chrestman & Brundidge, and Q. A. Fountain, all of Dallas, for appellees.
   ALEXANDER, J.

This suit was brought by the state of Texas-against the Praetorians, Gaulding Mortgage-Company, and Alma Wallen for taxes claimed to be due the county of Dallas and state of Texas for the year 1927 on certain real property situated in the city of Dallas. The action was in rem to foreclose a lien against the property. No personal judgment was-sought. The Praetorians by cross-action, made the Buell Lumber & Manufacturing. Company, which will hereafter be referred to-as the lumber company, a cross-defendant and sought a personal judgment against it. for such taxes. This appeal involves only the right of the Praetorians to such judgment.

In 1925 W. C. Martin and wife executed a-deed of trust on the property in question to-secure the payment of certain indebtedness due the Gaulding Mortgage Company. The Gaulding Mortgage Company afterwards assigned the debt and lien to the Praetorians. In 1926 Martin and wife conveyed the property to the Buell Lumber & Manufacturing Company, subject to the indebtedness held by the Praetorians. On January 1, 1927, the-property was assessed for the taxes herein, sued for in the name of the Buell. Lumber & Manufacturing Company, the then owner thereof. Thereafter in 1928 the trustee sold the property under the power provided for in the deed of trust and the Praetorians purchased the property in satisfaction of its-debt. The Praetorians is now the owner of the-property. It is the contention of the Prae-torians that, since the lumber company was-the owner of the property at the time the taxes accrued, it is personally liable for such taxes, and since the Praetorians will be required to pay such taxes in order to protect its title to the property, it should have a personal judgment for the amount of such, taxes against the lumber company. The trial court foreclosed the tax lien on the property in favor of the state, but refused judgment in’ favor, of the Praetorians against the lumber company. The Praetorians appealed.

It now seems to be well settled that,, where a lienholder, without request or contractual authority from the owner of the-land, pays taxes On the incumbered property in order to protect his lien, he does not thereby acquire a right to a personal judgment against such owner, but his claim for the amount so expended in paying such taxes becomes a part of his mortgage debt and he is limited in his right of subrogation to be reimbursed out of the mortgaged property. This is particularly true where, as in this case, the one who owns the land at the time the taxes accrue is not personally liable for the mortgage debt. Stone v. Tilley, 100 Tex. 487, 101 S. W. 201, 10 L. R. A. (N. S.) 678, 123 Am. St. Rep. 819, 15 Ann. Cas. 524; Wood v. Scott (Tex. Civ. App.) 48 S.W.(2d) 1024 (writ refused).

It is clear, therefore, that had the Prae-torians, prior to the foreclosure of its deed of trust, paid the amount of taxes due the state and county, it would not have been entitled to a personal judgment against the lumber company for the taxes so paid, but would have been limited in its recovery to a foreclosure'of a lien on the property for the amount of such taxes. The fact that it has foreclosed" its lien and is now the owner of the property and may now be compelled to pay such taxes in order to protect its title, does, not give it any greater right.- It is, therefore, not entitled to a personal judgment against the lumber company for the amount of taxes which it may be required to pay in order to redeem the property from the judgment in favor of the state. The trial court properly denied the, appellant’s prayer for such judgment.

The judgment of the trial court is affirmed.

Chief Justice GALLAGHER took no part in the consideration and disposition of this appeal*


author: WALTHALL, J.

text:
    BOAZ v. LEDENHAM et al.
    No. 2711.
    Court of Civil Appeals of Texas. El Paso.
    Sept. 29, 1932.
    Rehearing Denied Oct. 20, 1932.
    W. -0. Jackson, of Ft. .Stockton, for appellant.
    W. B. Silliman and W.- A. Hadden, both of Ft. Stockton, for appellees.
   WALTHALL, J.

Albert Ledenham brought this suit against Z. Boaz, A. F. Clarkson, and Bob Murchison, the last-named two being a partnership and sued individually and as a partnership, to recover the value of a cement tank and three cement'troughs'of the alleged agreed value of $390, and alleged to have been oráíly contracted by defendants with plaintiff to be built at plaintiff’s expense for defendants on defendant’s ranch in Pecos county. Plaintiff alleged that he erected said tank and troughs as agreed, which were accepted by defendants and each of them, demand and refusal to pay.

Plaintiff sues in the alternative, that if mistaken as to the making of a contract for said work and material, then he alleges that he built for defendants said tank and troughs upon the ranch of defendants which were accepted by defendants and now in their possession and use for watering their live stock, and that said tank and troughs are reasonably worth the amount sued for.

Murchison and Clarkson individually and as a partnership answered by general denial, and further say: That if said tank and troughs were erected as alleged, same were erected on lands, the property of defendant Z. Boaz, and which lands said Boaz had leased to them for a term of years, and under said lease terms said Boaz was to properly prepare watering facilities for live stock on said lands, and if said tank and troughs were erected by plaintiff same were erected under said lease contract at the request and expense of said Boaz, and that said Boaz knew of said contract, and agreed, acquiesced, and confirmed same as his contract. Defendants Murchison and Clarkson asked judgment over and against Boaz, should they be cast in the suit.

Defendant Boaz- answered by- general denial, and specially denied that the debt was his; denied that he agreed to pay same, and asked judgment over and against the other defendants in the event judgment is against him.

The case was tried without a jury, and judgment rendered in favor of plaintiff against defendant Boaz, who prosecutes this appeal.

We have found no briefs in the record for plaintiff, nor for any of the defendants except Z. Boaz.

Without quoting the evidence, it shows substantially the following:

C. P. Chick testified: He made the contract with defendant Bob Murchison, for plaintiff Ledenham to build the tank and troughs, same to cost $390; Ledenham to furnish all labor and material. The tank and troughs were to be built on the ranch where Murchison lived on Boaz’ land. Over objection of Boaz, witness was permitted to say: “Murchison said he was making the contract for the defendant Boaz.” We think the remark was not objectionable as establishing agency in Murchison. The point was to show .that the tank and troughs were to be made for Boaz. The evidence might not have been sufficient to show a contract by Boaz, unless followed up by evidence of authority in Murchison to act for Boaz.

H. C. Davis testified: He built the tank and ■troughs according to the plans and specifications furnished by Ledenham. The reasonable price for building the tank and troughs was $390.

Bob Murchison testified: Witness leased, in writing, the pasture in question from Boaz. In that contract Boaz was to build certain water tanks and troughs. Witness made the contract with O. P. Chick for plaintiff to build the tank and troughs. The only contract witness had with Boaz which authorized him to contract for the tank and troughs was the lease contract, which was in writing. Triplicate copies of the lease contract were made and a copy was delivered each to witness, Clarkson and Boaz. Without quoting from the evidence, no one of the triplicate copies of the lease contract was offered in evidence.

Over objection of Boaz, witness was permitted to testify: “The written contract provided: Z. Boaz. agreed to furnish necessary pipe to convey water about two miles southeast of the ranch house and then erect necessary water troughs and tank, etc.”

Witness then testified that the tank and troughs were necessary, and were located at the place named in the contract. Witness was permitted to testify over objection of Boas: “I do say that in the written contract with Boaz he agreed to pay for tank and troughs at location sued for in this "case,” and that after this tank and troughs were built he told me he would pay for them.

It was objectionable to permit witness to state the contents or provisions of the written lease where, as here, the lease had not been sufficiently accounted for, nor sufficient notice to produce shown. But we think, in view of the whole record, the error is not a reversible error. Bills of exception were taken to other statements of the witness which we have considered but do not think they show reversible error.

Witness was permitted, over objection, to testify: A few weeks before the trial witness saw Boaz in San Angelo, Tex., talked to him about the tank and troughs and this suit. At that time Boaz said he would pay Leden-ham for the tank and troughs sued for in this case.

To the above statement appellant submitted a number of objections; no consideration, .no pleading, the promise was to pay the debt of another and was not in writing. We think none of the objections are tenable. The consideration is apparent, being on Boaz’ land; not necessary to plead the ratification. Texas Jurisprudence, vol. 2, pp. 636 and 637, and notes. The record does not show the debt to be the debt of another. The statement is a ratification of the acts of Murchison as agent in contracting for the tank and troughs.

Ledenham testified that he had made a contract with Bob Murchison for several concrete water tanks and troughs not involved here, on the Boaz ranch; that Boaz accepted said other tanks and troughs when completed, and gave his note in payment for same.

The record shows other evidence along the same line as above which we think it unnecessary to state.

While there were errors in permitting evidence of the contents of the written lease, and while the contract of Murchison for the construction of the tank and troughs, as agent of Boaz, would not show agency of Murchison or bind Boaz to pay for the tank and troughs, the statement made by Boaz to Murchison at San Angelo shows a full knowledge of what Murchison had done for him as his agent, his acceptance of what had been done, his admission of his indebtedness, a promise to pay; in fact a ratification by Boaz, as his agent, of what Murchison had done in contracting for the tank and troughs is clearly shown.

Ratification, in civil law, removes a multitude of errors.

Finding no reversible errors, the case is affirmed.


author: SHARP, J. CURETON, C. J.

text:
    TEXAS INTERURBAN RY. CO. v. HUGHES et al.
    No. 1582—5947.
    Commission of Appeals of Texas, Section A.
    Oct. 26, 1932.
    Allen Charlton and Worsham, Rollins, Bur-ford, Ryburn & Hincks, all of Dallas, for plaintiff in error.
    Carden, Starling, Carden & Hemphill, C. C. Huff, and J. M. Chambers, all of Dallas, for defendants in error.
   SHARP, J.

' L. B. Hughes filed this suit in one of the district courts of Dallas county against the Texas Interurban Railway Company and the Missouri-Kansas-Texas Railroad Company of Texas for personal injuries received by himself and for expenses incurred in connection therewith, and in connection with injuries received by his minor daughter, arising out of a collision between an automobile and an electric interurban car operated over the track of the Missouri-Kansas-Texas Railroad Company of Texas under a contract between the Texas Interurban Railway and the Missouri-Kansas-Texas Railroad Company.

For convenience we will designate the Texas Interurban Railway as the Interurban and the Missouri-Kansas-Texas Railroad Company of Texas as the Railroad Company. Many acts of negligence were alleged, and the defendants alleged that the collision was caused solely by the negligence of the driver of the automobile, and, in the alternative, that it was caused by the negligence of the plaintiff, and each defendant filed a cross action over against its codefendant, basing the same upon the terms of the contract under which the Interurban operated its cars over the tracks of the Railroad Company.

After the conclusion of the evidence, the trial court instructed a verdict in favor of the Railroad Company against the Interurban on its cross-action. The case was submitted to the jury upon special issues. The jury, in answer to the special issues submitted, established the following acts of negligence, each and all of which is found to be a proximate cause of the collision: (1) That the speed at which the Interurban was being operated constituted negligence; (2) that the motorman was negligent in the matter of keeping a lookout for the automobile; (3) the motorman 'was negligent in the matter of giving warning of the approach of the interurban car; (4) that it was negligence to operate the interurban car 'at this crossing without prior' to the time of the collision having installed thereat an automatic electric signal or warning device; (5) the jury also found, in answer to special issues, that the plaintiff was not guilty of any negligence in any of the several matters submitted to them; (6) the jury also found, in answer to special issues, that the driver of the automobile, plaintiff’s daughter, was not guilty of negligence in any of the several respects submitted. The jury awarded the plaintiff $11,-500 by reason of his own injuries and $49-7.30 by reason of the expenses incurred on account of the injuries to his minor daughter. In response to the instruction of the trial court, the jury found a general verdict in favor of the Railroad Company upon its cross-action against the Interurban and also upon the cross-action of the Interurban against the Railroad Company. The trial court entered a judgment in favor of the plaintiff against each of the defendants, jointly and severally, in the sum of $11,997.30, and furthermore that the Railroad Company recover of the Interurban on its cross-action in the same sum above stated, and that the Interurban take nothing upon its cross-action against the Railroad Company. An appeal was made to the Court of Civil Appeals at El Paso, and the ease was reversed and remanded. 34 S.W.(2d) 1103. A writ of error was granted.

This suit involves the construction of the provisions of a contract whereby the Railroad Company leased unto the Interurban Company the use of its tracks over which to operate its interurban cars. The tracks were also used by the Railroad Company in the operation of its trains.

That portion of the contract pertinent to the issues involved in this suit with respect to the liability of the Railroad Company and the Interurban reads as follows:

“Liability for loss or damage shall be as follows: * * *
“(3) Except as provided in paragraph (1) of this section, for loss or damage resulting from the concurring negligence or umongful act of the sole employee of both parties, or from the concurring negligence or wrongful-act of joint employees alone, or from the failure or defect of any part of the jointly used facilities or in the maintenance thereof, •the parties shall he jointly liable, and the expense of such loss or damage shall he deemed as operation and maintenance expense and he divided equally between them." (Italics ours.)

The Interurban, in substance, contends: (1) That the contract made for the operation of interurban* cars over the railroad tracks provides that the defendants would be equally liable for personal injury sustained where the negligence of a sole employee of the Railroad Company concurred with the negligence of a sole employee of the Interurban to cause the injuries; (2) that the Interurban having alleged that the ■ collision in which plaintiff was injured was caused solely by the negligence of the Railroad Company in not maintaining any additional safety or signal device at the crossing, and if not.solely caused by same that it concurred with other acts and omissions, if any, to cause said collision; (3) that under the terms of the contract the Railroad Company was liable for one-half of any recovery that might be had by the plaintiff, and the evidence being sufficient to raise the issue as to whether the Railroad Company, through a sole employee, was guilty of negligence in not including in its signal device at the public crossing or erecting independently thereof a sound element, and also being sufficient to raise the question of the negligence of a sole employee of the Interurban, and that the negligence of the sole employee of the Railroad Company concurred with the negligence of the sole employee of the Interurban; ■ and (4) that the Court of Civil Appeals, 'in view of this record, erroneously held that there was no evidence raising any question of fact as to whether the collision between the automobile and the Interurban car at the public crossing was part of the result of the negligence of the sole employee of the Railroad Company who erected a fixed crossing signal without any sound element or electric bell, and further contends that the Court of Civil Appeals was in error in holding that there was no evidence under which the cross-action of the Interurban against the Railroad Company should be submitted to the jury.

The rule is well settled in this state that a railroad company chartered under a state law, but engaged in interstate commerce, may be authorized by the proper authorities to lease its property and relieve itself of liability for the negligence of the lessee during the term of the lease. Houston, E. & W. T. R. Co. v. Anderson (Tex. Sup.) 36 S.W.(2d) 983, and authorities cited; Gulf, C. & S. F. R. Co. v. Miller, 98 Tex. 270, 83 S. W. 182. However, the foregoing general rule does not apply in this case. There is no contention made here that the Railroad Company was authorized by the proper authorities to make the lease involved, or that, with the exceptions of the provisions of the contract, its liability was to be limited. By the terms of the contract the Railroad Company and Interurban fixed as between themselves their respective liability.

It is also a well-settled rule that the Railroad Company would he liable for its negligence in failing to install proper signals at public crossings. This liability would not cease by leasing its tracks for joint common use to the Interurban under the facts involved here. A railroad company which admits another company to the joint common use of its tracks is liable for the negligent acts of such company in the enjoyment of such use, and such liability is not affected by the fact that the company using the tracks is also liable. 51 C. J. pp. 1101 and 1102; 22 R. C. L. p. 1083, § 316; Gulf, C. & S. F. R. Co. v. Miller, supra. When an injury results from the negligence or unlawful operation of a railway, whether by the original corporation to which the franchise is granted or by its lessee authorized or permitted to use the tracks for the operation of its cars, both lessor and lessee are liable to respond in damages to the party injured. Trinity Valley & N. R. Co. v. Scholz (Tex. Civ. App.) 209 S. W. 224; Texas & N. O. R. Co. v. Jones (Tex. Civ. App.) 201 S. W. 1085; Trinity & S. Ry. Co. v. Lane, 79 Tex. 643, 15 S. W. 477, 16 S. W. 18; Gulf, C. & S. F. R. Co. v. Miller, 98 Tex. 270, 83 S. W. 182; Ray v. Pecos, & N. T. R. Co., 35 Tex. Civ. App. 123, 80 S. W. 112; Gulf, C. & S. F. R. Co. v. Bryant, 30 Tex. Civ. App. 4, 66 S. W. 804; International & G. N. Railway Co. v. Underwood, 67 Tex. 592, 4 S. W. 216; International & G. N. Railway Co. v. Moody, 71 Tex. 616, 9 S. W. 465; Missouri, K. & T. Railway Co. v. Owens (Tex. Civ. App.) 75 S. W. 579, 582; Woodhouse v. Railway Co., 67 Tex. 420, 3 S. W. 323; Central & M. Railway Co. v. Morris & Crawford, 68 Tex. 59, 3 S. W. 457; Collins v. Railway Co., 15 Tex. Civ. App. 169, 39 S. W. 643; St. Louis Southwestern Railway Co. v. McGrath (Tex. Civ.. App.) 160 S. W. 444; East Line & R. R. Ry. Co. v. Culber-son, 72 Tex. 377, 10 S. W. 706, 707, 3 L.R.A. 567, 13 Am. St. Rep. 805; West Chicago St. Railway Co. v. Horne, 197 Ill. 250, 64 N. E. 331. Furthermore, the authorities sustain the rule that the Interurban is held to the same degree of care in its use of the railroad tracks for the operation of its cars as is imposed upon the Railroad Company itself. 51 C. J. 1104, § 1166.

It is undisputed that no automatic electric signal or warning device was installed at the railroad crossing where the collision occurred. Plaintiffs claim that the failure to install such electric signal or warning was negligence. The Railroad Company owned the right of way, the tracks, crossing signal, and all facilities, except, the electric line and poles, and it leased to the Interurban the right to-run electric cars over the railroad facilities.

The Interurban alleged that, if this was negligence, and plaintiff should recover judgment against it for any sum, it have judgment over against the Railroad Company for one-half of whatever amount plaintiff recovered against it. The jury found that it was negligence to operate the electric interurban, car at the public crossing without having pri- or to the time of the collision installed thereat such signal or warning device.

It is also a settled rule that railway companies should maintain a flagman or some other signal at unusually dangerous or hazardous crossings to warn travelers of the dangers incident to the use of such crossing, although not liable by ordinance or statute. For a full and complete discussion of this question and the duty imposed upon a railroad company to place a flagman or some other warning device at a public crossing, we refer to the case of Galveston, H. & S. A. Ry. Co. v. Wells (Tex. Sup.) 50 S.W.(2d) 247.

We think that a fair and reasonable construction of the terms .of the foregoing contract, under the pleadings and testimony, raises an issue of fact as to the liability of the Railroad Company for failure to install an electric signal and a warning device, and that it was error to hold that the Railroad Company as a matter of law was not liable to the Interurban by reason thereof.

The trial court submitted to the jury the following issue: “ ‘Do you find from a preponderance of the evidence that the collision in this case was not due to an unavoidable accident? Answer ‘Yes,’ or ‘No.’ In this connection with issue No. 54, you are charged that by the term ‘unavoidable accident’ is meant an event which occurs without the. negligence of either the plaintiff, L. B. Hughes, or the defendants, or the Ivd&mr'ban.’ To the issue the jury answered, ‘No.’ ” (Italics ours.)

The effect of the finding of the jury to this issue was in direct conflict with the finding of negligence on the part of the defendants. ThQf burden was on plaintiff to show that the collision was the result of the negligence of the two defendants, or either of them. The finding of the jury on the issue of unavoidable accident is in direct conflict with the other findings of the jury on the issues of negligence, and the judgment is unsupported by any finding, and should not have been entered for either party. Rosen-thal Dry Goods Co. v. Hillebrandt (Tex. Com. App.) 7 S.W.(2d) 521; Texas & P. R. Co. v. Edwards (Tex. Com. App.) 36 S.W.(2d) 477; Dallas Ry. & Terminal Co. v. Garrison (Tex. Com. App.) 45 S.W.(2d) 185; Autrey v. E. Nelson Mfg. & Lumber Co. (Tex. Civ. App.) 26 S.W.(2d) 298; Texas Electric Ry. v. Burt (Tex. Civ. App.) 272 S. W. 255.

Since this case will be reversed and remanded, we suggest that upon another trial, if the case is submitted to the jury upon special issues, the issue of unavoidable accident and the explanation thereof should be expressed in unambiguous language. Both the form of the issue and the language embraced in the explanation given in connection therewith are subject to criticism, and should be so phrased as not to confuse the jury.

It is further contended that the trial court erred in excluding the testimony of Miss Kline that immediately after the collision, and while the injured parties were still at the scene of the collision, she heard one or more men standing near the damaged automobile say that at the time, with reference to the accident, that “he had stopped his car to wait for the Interurban to pass and that this automobile involved in the) collision came from behind him. and passed to his left and ran right in front of the Interurban.”

It is contended, among other things, "that the testimony of Miss Kline was admissible, being a part of the res -gestae. The courts of this state have refused to announce a rigid rule respecting the admissibility of evidence as a part of the res gestae. Only general and fundamental rules have been announced governing the admissibility of testimony under this rule. The testimony offered was statements made by bystanders, who are not parties to this suit. The statements were made after the collision. Mere narrations of past events are not admissible, but sometimes a narration is so close in point of time to the main fact, and is inseparable from it, as to be a part of it. In determining whether evidence is admissible under the rule, each case must be tested by its peculiar facts, and, if upon a fair analysis a statement after the event does not appear to be a continuation of it, it cannot be res gestee, even though made near the time of the occurrence. Statements made must be either a part of the transaction or made under such circumstances as to raise a reasonable presumption that they are spontaneous utterances or facts created by or arising out of the transaction itself. If they are not in their nature a part of the fact, they do not constitute a part of the res gestse, and are inadmissible, though closely related in point of time. If this general rule announced by the authoritative decisions was not adhered to, it would be made the means of introducing indirect testimony in such a way as to make it injurious and prejudicial to litigants. Therefore, when we come to test the testimony offered in the light of the rules bearing upon this subject, we do not think it meets the test required, and the trial court did not err in excluding it. 17 Texas Jurisprudence, pp. 016, 617, etc., and eases cited; Jones, Commentaries on Evidence (2d Ed.) vol. 3, §§ 1196, 1197, etc., and authorities cited.

We therefore recommend that the judgment of the Court of Civil Appeals reversing and remanding the judgment of the trial court be affirmed, and that this case be reversed and remanded to the district court for another trial in accordance with this opinion.

CURETON, C. J.

The judgment of the Court of Civil Appeals is affirmed, with instructions as recommended by the Commission of Appeals.


author: RYAN, J. CURETON, C. J. •

text:
    WEST TEXAS UTILITIES CO. et al. v. RENNER et al.
    No. 1335—5867.
    Commission of Appeals of Texas, Section B.
    Oct. 26, 1932.

      Wagstaff, Harwell, Wagstaff & Douthit, of Abilene, and Touchstone, Wight, Gormley & Price, of Dallas, for plaintiffs in error.
    Ben L. Cox, Scarborough, Ely, Brown & King, and Dallas Scarborough, all of Abilene, and W. L. Thornton, John West, and Leach-man & Gardere, all of Dallas, for defendants in error.
   RYAN, J.

S. V. Renner filed this suit against West Texas Utilities Company and Texas Plains Public Service Company to recover damages alleged to have been sustained by him, while in the employ of Mosher Steel & Machinery Company, an independent contractor, engaged in the erection of an addition to a building o.wned by said Utilities and Public Service Companies.

It was agreed in open court that the West Texas Utilities Company and the Texas Plains Public Service Company are one and the same corporation, and therefore, as did the honorable Court of Civil Appeals, we shall refer to them as the one defendant below; West Texas Utilities Company. .

It was alleged that said companies were engaged in the transmission and distribution of electric current in Upton county, and' while Renner was at work on the defendants’ property, as an employee of the Mosher Company, in the construction of said addition to defendants’ plant, he received a charge of electricity from the wires of defendant, which were highly dangerous and not insulated or protected in any manner.

The grounds of defendants’ negligence averred, were: Maintaining high-voltage wires in. an uninsulated condition at and near the place where Renner was injured; failure to give him notice and warning of the danger incident to coming in contact with such wires or close proximity thereto; failure to cover or protect the high-voltage uninsulated wires with a rubber apron or other similar contrivance; failure to disconnect or cut off the high-voltage current while the work was being done; failure to have the premises of the work in a reasonably safe condition during prosecution of the work; failure to supply Renner with gloves of rubber or some similar material which would act as an insulator; in moving the wires, after Renner was engaged in doing his work, from a point not in close proximity to the building under construction, to a point within close proximity thereto, thus negligently increasing the hazard of Renner’s work unnecessarily, and in disregard to his right of bodily security.

■ Mosher Steel & ■ Machinery Company carried compensation insurance with the Texas Employers’ Insurance Association under the Workmen’s Compensation Act; the insurance association paid out a total of $7,350.50 for compensation to Benner, and medical, hospital and nursing expenses in the treatment of his injuries, and intervened to recover back the payments made by it for compensation and expenses under the provisions of article 8307, Bev. Stat. 1925.

The Mosher Steel & Machinery Company was impleaded by the defendant below as a joint wrongdoer and joint tort-feasor, and judgment over sought against it in case of Benner’s recovery.

The .trial court instructed verdict in favor of .the Mosher Steel & Machinery Company, and entered judgment as to it, accordingly.

In ánswer to special issues, the jury found that on July 27, 1927, the West Texas Utilities Company maintained its high-voltage wires in an uninsulated condition at and near the place where Benner was injured, which was negligence on the part of the company, and such negligence was a proximate cause of the injuries sustained by him; also, that at the time and on the occasion of said injury, said company was negligent in failing to disconnect or cut off the high-voltage current which was transmitted in the wires at and near where plaintiff was injured while plaintiff was engaged in his work, and such negligence was a proximate cause of plaintiff’s injuries; also, that the company moved the transmission or electric wires in question from a point not in close proximity to a point within close proximity to such building after the work began in which plaintiff was engaged at the time of his injury, which was negligence and a proximate cause of plaintiff’s injuries.

It appears from the testimony that in some manner, Benner lost his balance while working on the roof of the structure being built by the Mosher Company, and undertook to regain it while holding a metal bar (.to be placed in the building) in his hand. In doing so, the bar touched or came into close proximity to the high-voltage wire from which he received .the electric shock.

The defendant below pleaded that with knowledge of the danger in working near a high-voltage wire carrying electricity, and after being warned .of such danger, Renner permitted a steel rod or bolt with which he was working to come in contact with such wire, and, the injuries were due to his own negligence and not that of any other person.

On this point the trial court submitted this issue to the jury: “Was the plaintiff guilty of contributory negligence in permitting the steel rod, which he held in his hand at the time of the injury, to come in contact, if he did, with the high-voltage electric wire from which he received the electric shock?” which the jury answered, “No.”

The plaintiff’s damage was fixed by the jury at $22,500 and judgment accordingly rendered against the defendants; $7,350.50 thereof was apportioned to the Texas Employers’ Association, and the balance, amounting to $15,149.50, to Benner, plaintiff below.

Said judgment was affirmed by the Honorable Oourt of Civil Appeals. 32 S.W.(2d) 264.

In their application for writ of error, plaintiffs in error contend that the trial court should have peremptorily instructed verdict for them, on the ground that Benner had knowledge of the danger .of' working near high-voltage lines, and had been warned of such danger; therefore- he was guilty of contributory negligence as a matter of law.

“The obligation resting on the user of wires highly charged with electricity to exercise reasonable care to avoid injury to all known to be rightfully coming into a place of danger from such wires,” said Mr. Justice Greenwood in Galveston-Houston Electric Railway Co. v. Beinle, 113 Tex. 456, 258 S. W. 803, 805, “is .thus stated in 9 R. C. L. page 1206, § 16, viz.: ‘This duty of using the' necessary skill and prudence to prevent injury to persons coming in contact with their wires is imposed upon electric companies, not only as regards the. public generally, but also with respect to any individual engaged in a lawful occupation in a place where he is entitled ■to be. Such persons are not trespassers or licensees bound to take the premises in the •condition in which they find them.’ * * * The reason for the employer’s liability for an injury occasioned like Beinle’s is stated in Cooley on Torts to be: ‘If I employ a contractor to do a job of work for me which, in the progress of its execution, obviously exposes others to unusual perils, I ought, I think, to be responsible,- * * * for I cause acts to be done which naturally expose others to injury.’ 2 Cooley on Torts (3d Ed.) p. 1091.”

As correctly held by the Court of Civil Appeals, the duty is imposed, in a case like this, not only to warn, but to use at least ordinary, care to have the premises in a reasonably safe condition; the degree of care required must be commensurate with the danger. There was evidence sufficient to go to-the jury, who found in answer to special issue No. 1 .that the defendant was guilty of negligence in maintaining the high-voltage uninsulated wires at and near the place where Benner was working.

In applying the term “ordinary care” to a given state of facts, Judge Sharp, of the Commission of Appeals, in Dallas Railway & Terminal Co. v. Bankston, 51 S.W.(2d) 304, said the meaning of the common-law rule of ordinary care is elastic enough to meet all emergencies ; the amount of care depends upon the exigency confronted. It may require one thing to be done at one place, and something else at another place; the degree of care must be sucb as a person of ordinary prudence would exercise under like circumstances.

■ A company maintaining electrical wires over which a high voltage of electricity is conveyed, rendering them highly dangerous to others, is under the duty of using the necessary care and prudence at places where others may have the right to go, either for work, business, or pleasure, to prevent injury. Rucker v. Sherman Oil & Cotton Co., 29 Tex. Civ. App. 418, 68 S. W. 818; Joyce Electric Law, § 445.

Plaintiff in error’s contention that the jury should have been peremptorily instructed is overruled, as is its complaint that special issues Nos. 1 and 3 should not have been given; they were with reference to separate grounds of negligence properly averred and sustained by proof.

Plaintiff in error’s next assignment of error is that the court erred in refusing defendants’ special issue No. 6, as follows: “Did the plaintiff assume the risk, if any, attendant upon the work he was doing when he received the electric shock?”

The plaintiff was not an employee of the Utilities Company, and therefore the doctrine of assumed risk does not apply. It is only (as correctly held by the Court of Civil Appeals, and the authorities cited in their opinion) between master and servant that the doctrine of assumed risk applies, in this state. As said in 26 Cyc. p. 1180 (a), the doctrine of assumption of risk is distinct from that of contributory negligence, and rests upon an agreement of the servant with his master, express or implied, from the circumstances of his employment, that his master shall not be liable for. any injury incident to the service resulting from a known or obvious danger arising in the performance of the service, but even then the servant does not assume such risks as are created by the master’s negligence.

It is contended that the answers to special issues Nos. 2 and 4 conflict with the answers to special issues Nos. 1 and 3, and therefore there is no basis on which to render a judgment, and a mistrial should have been declared. We overrule this contention.

Several and distinct grounds of negligence were alleged. In answer to special issue No. 1, the jury found that the company was negligent in maintaining its high-voltage wires in an uninsulated condition at and near the place where the plaintiff was injured, and this negligence was a proximate cause of the injury; to special issue No. 3, the jury found that the company was negligent in failing to disconnect or cut off the high-voltage current transmitted in its wires while plaintiff was engaged in his work, and this was a proximate cause of the injury.

In answer to special issue No. 5, the plaintiff was acquitted of contributory negligence.

One of the separate grounds of negligence alleged by plaintiff-was the failure to cover or protect the high-voltage wires with a rubber apron or other similar contrivance; the jury found in answer to special issue No. 2, that this was not negligence, and not a proximate cause of the injuries. The company’s testimony was to the effect that it was not practical to insulate such a line as to make the insulation effective without expending a large sum of money; the insulation would have to be done when the line is built.

It was in evidence that the current could have been disconnected or cut off. Witnesses familiar with the subject testified that this is called “killing” the line, and a company employee testified that other companies do not have protective measures and contrivances that are used to protect men from the current, that he had seen insulation made of rubber, but “if you attempted to put that over a 13,000 volt line you would probably get killed putting it on,” and if rubber insulation or apron had been put on the lines it would have been more dangerous to the men working there. He testified further: “We do attempt to protect our men from hot lines. On all voltages below five thousand volts we use those protective devices, if it is over five thousand volts it is a job that would be done by the hot stick crews. We send in those crews to do the work. We ‘kill the line,’ issue a clearance on it, and work on it with the circuit dead. By ‘killing the line,’ I mean taking the current or voltage off of it; that is, open the switches and the wire doesn’t carry any electric current.”

The sole element of negligence was not “failure to insulate,” disregarding the element of maintaining the dangerous wire at the place where Renner was required to work.

In Lofty v. Lynch-McDonald Construction Co., 215 Mo. App. 163, 256 S. W. 83, 87, the Kansas City Court of Appeals, in disposing of a similar contention to that made here, said: “But regardless of whether there was no negligence in the fact th¿t the wires were uninsulated because the plans legislatively adopted by the city called for bare wires, nevertheless it was negligence to carry and maintain such wires over the shed * * ⅞ thereby endangering the life of one who might attempt to remove any of the pipes. [Citing authorities.] And the defendant guilty of such negligence would be liable for the death of one killed in the attempt to take said pipe down, provided he was in the exercise of due care and was rightfully so engaged.”

In McCoy v. Texas Power & Light Co. (Tex. Com. App.) 239 S. W. 1105, 1110, Judge Randolph of the Commission of Appeals, wrote: “It is true that science has succeeded in harnessing the tremendous power of electricity, and it is also true that no method has been discovered whereby this power can be confined to the wire which is its conductor, as it is utterly impractical to attempt to insulate the wires carrying the tremendous voltage amounting to 30,000 or 60,000 volts. * * * Because it is a legal business and in the service of the public should not, and does not, release the defendant from being subject -to all the requirements of the law, that it conduct that business in such manner that will result in reasonable protection to those on its premises either on business or by invitation, express or implied.”

In the Massachusetts case of Philbin v. Marlborough Electric Company, 218 Mass. 394, 105 N. E. 893, the person injured was in a tree on his father’s land, and the wire which injured him passed on adjoining premises. The wires were uninsulated, and carried a current of 13,000 volts in such close proximity to the tree’s branches as to create a danger of electricity passing on them whenever they were moistened with snow or rain, as they were liable to be at' any time. The court held that because elsewhere similar wires carrying similar current are not insulated, or that the cost of insulation would have involved greater expense in the transmission of power, is not decisive in the company’s favor; the safety of human life does not necessarily yield to the desirability of furnishing light or power as cheaply as may be to the user thereof.

That, it will be observed, was a case of negligent maintenance, as is the case at bar.

With reference to the jury’s answer to special issue No. 2, the record shows much testimony that the use of rubber aprons and similar contrivances were not effective on wires of over 6,500 volts, which did not relate to the negligence in “maintaining” an uninsulated wire close to plaintiff, as did issue No. 1, but related only to the question as to whether the company should have thrown an ineffective contrivance over the wires in question, and it was not negligence to fail to use an ineffective device for protective measures.

The jury’s finding in answer to special issue No. 3, that the company was negligent in failing to disconnect or cut off the high-voltage current while plaintiff was at work finds basis in the testimony above referred to. If the current had been “killed” by disconnecting, Renner would not have been injured as he was. The company, according to oné of its witnesses, “killed” the current when its own crews were at work; that it should have done the same for Renner, in the exercise of proper care, is the effect of the jury’s finding.

What has been said applies to the answer to special issue No. 4. The moving of the wires in question from a point not in close proximity to the place where Renner was at work, to a point within close proximity thereto, may well not have been a proximate cause of his injuries, as found by the jury, while the maintenance thereof in an uninsulated condition was negligence and a proximate cause of the injuries. There is no conflict in the findings.

This disposes of the material matters complained of in the application for writ of error, and we are in accord with the Court of Civil Appeals in reference thereto, except the assignment of error complaining of the argument to the jury by attorneys for defendant in error.

It áppears from the bill of exceptions, upon which this assignment of err.or is based, that counsel for plaintiff in addressing the jury; stated: “Now, gentlemen, you have caught from the pleadings that Mosher Steel Company had insurance on its employees and this man has collected $7300.00 in compensation and doctors’ bills. Befor.e he can recover a nickel, gentlemen, he has got to recover over and above the amount the insurance company paid. In other words, gentlemen, the first $7300.00 of this verdict you find for the plaintiff will go to the insurance company. This man will not get one red cent unless he recovers it over and above $7300.00.”

The objection was that it was a question of law as to how the 'verdict would be divided and not a question of fact, and that the argument was improper for that reason; the trial court overruled the objection, and permitted the statement to be made to the jury.

In the Court of Civil Appeals, the appellee objected to any consideration of propositions based upon such complaint, because the bill of exceptions preserving the objections to the argument do not disclose either that there was no evidence to justify the argument or that there was no argument on the part of the opposing counsel to provoke the argument complained of.

The Court of Civil Appeals erroneously sustained such objections, and declined to consider the propositions and assignments of error in reference thereto.

In Texas Indemnity Co. v. McCurry (Tex. Com. App.) 41 S.W.(2d) 215, 217, 78 A. L. R. 760, it was held that a bill of exceptions to improper argument is not required to negative any possible fact or state of attending circumstances that would render the objectionable matter without prejudicial effect. It was there stated: “The rule is now settled in this state that, where improper argument has been, indulged in, the adverse complaining party is entitled to reversal of the judgment, as a matter of law, if under all the circumstances there is any reasonable doubt of its harmful effect, or unless it affirmatively appears no prejudice resulted. Bell v. Blackwell (Tex. Com. App.) 283 S. W.

765; Behringer v. South Plains Coaches (Tex. Com. App.) 13 S.W.(2d) 334;) Hubb Diggs . Co. v. Bell, 116 Tex. 427, 293 S. W. 808; Floyd v. Fidelity Union Casualty Co. (Tex. Com. App.) 24 S.W.(2d) 363; Hull & Kennedy v. Christian (Tex. Civ. App.) 283 S. W. 568; Missouri-Kansas-Texas R. Co. v. Thomason (Tex. Civ. App.) 3 S.W.(2d) 106, 107; McMahan v. City of Abilene (Tex. Civ. App.) 8 S.W.(2d) 554.”

The objection to such argument should have been sustained.

Under the Workmen’s Compensation Act (article 8307, § 6a), the insurer is entitled to subrogation to the injured employee’s claim to the extent of the amount paid or assumed .by it, and the excess of recovery only inures to the benefit of the injured employee, but there cannot be a double recovery. Fox v. Dallas Hotel Co., 111 Tex. 461, 240 S. W. 517; Haynes v. Bernhard (Tex. Civ. App.) 268 S. W. 509; Lancaster v. Hunter (Tex. Civ. App.) 217 S. W. 765; Galveston-Houston Electric R. Co. v. Reinle (Tex. Civ. App.) 264 S. W. 783.

The special issue submitted was as follows: ■“If in answer to either of the special issues Nos. 1, 2, 3 and 4, you have found that the defendant was negligent and that such negligence was the proximate cause of plaintiff’s injuries, if any, you will answer the following question:—What amount of money if paid at this time would justly and fairly compensate the plaintiff for such injuries, if any, that he may have sustained, which have been proximately caused by such' negligence, if any?”

This meant only the one inclusive recovery ; the apportionment of the part thereof to the insurance company would be a matter of law purely. The argument,'in effect, informed the jury that the recovery for Ren-ner’s benefit should be over and above the amount paid by the insurer. This was not in accordance with the special issue submitted.

As said by Judge Critz in McFaddin v. Hebert, 118 Tex. 314, 15 S.W.(2d) 213, 216: “Clearly, the prime object, purpose, and intent .of the law for submitting cases on special issues is to remove the jury from any bias in favor of, or prejudice against, either party to the suit, to relieve them from the duty of directly passing on who shall prevail in the suit, and to make it the duty of the jury to answer each question truly as they find the facts to be from the evidence, without regard to what the result of their answers may be. If the court or the attorney, or any one else, is allowed to tell the jury the legal result of the answers, and to appeal to them in argument to so frame their answers so as to accomplish a result rather than to answer the issues truly as they find the facts to be from the evidence, or if the jury is permitted to agree on the result, and then designedly form the .answers to accomplish such result, the law providing for special issue verdicts would be an idle and vain thing.”

This is quoted with ’approval by Judge Sharp, in Fidelity Union Casualty Co. v. Cary (Tex. Com. App.) 25 S.W.(2d) 302.

The appeal was, to say the least, to give such damages as he ought to have, and then add the sum of $7,300 so that he would obtain damages in full and net to him, exclusive of what he had already received from the insurance company. One of the main objects in submitting a case on special isáues is that the jury may solve disputed issues of fact without knowing the legal effect of their findings. Duron v. Beaumont Iron Works (Tex. Com. App.) 9 S.W.(2d) 1104.

Another portion of the argument complained of is as follows: “You know, twenty years from now, twenty-seven years from now, it will be, ‘tap, tap, tap,’ walking down the pavement. ‘Tap, tap,’ rain, snow, good weather, cold weather, hot weather, ‘tap, tap.’ He will just be hopping along on that peg, doing the best he can, while these officials of this company will be in their homes taking things easy, having forgotten about old Renner that they burned up out there in Upton County,” which was unsuccessfully objected to as prejudicial, inflammatory, and out of the record.

We think this was improper argument, calculated to arouse the sympathy and prejudice of the jury. Brown Cracker & Candy Co. v. Castle (Tex. Civ. App.) 26 S.W.(2d) 435, writ of error refused 119 Tex. 447, 31 S.W.(2d) 630; Security Union Ins. Co. v. Alsop (Tex. Civ. App.) 1 S.W.(2d) 921; Floyd v. Fidelity Union Casualty Co. (Tex. Com. App.) 24 S.W. (2d) 363.

Equally objectionable was the following argument, properly but futilely objected to: “If you pay me $3.00 a day to walk over town with my leg tied up like this (indicating) ; $3.00 a day like that (indicating) in twenty years’ time, it would be $25,000.00 at $3.00 per day.”

Plaintiff in error’s contention that it has a right of recovery over, or a right of contribution, against the Mosher Steel & Machinery Company is without merit.

As correctly stated by the Court of Civil Appeals, the Mosher Steel & Machinery Company was not’charged by the pleading or shown by the evidence to have been guilty of any active negligence, and, having protected itself by providing compensation insurance foi: its employees, could not be compelled to pay indirectly when no liability existed to pay directly.

We recommend that the judgment in favor of the Mosher Steel & Machinery Company be affirmed, but that the judgments of the district court and Court of Civil Appeals as to the other parties be reversed, and the cause remanded for trial.

CURETON, C. J. •

The judgments of the district court and Court of Civil Appeals are in part affirmed, and in part reversed, and cause remanded, as recommended by the Commission of Appeals.

We approve the holdings of the Commission of Appeals on the questions discussed in its opinion.