author: WALTHALL, J.

text:
    TEXAS &. N. O. R. CO. v. WEBSTER.
    No. 2715.
    Court of Civil Appeals of Texas. El Paso.
    Oct. 13, 1932.
    Rehearing Denied Nov. 3, 1932.

      Baker, Bot.ts, Andrews & Wharton, of Houston, and Kemp & Nagle, of El Paso, for appellant.
    Lea, McGrady & Edwards, of El Pasó, for appellee.
   WALTHALL, J.

We adopt the statement of the nature and result of the suit,'as submitted by appellant in its brief, with the additional suggestion of appellee that, when the deceased and the other members of the switching crew were serving the defendant, they were, with defendant, engaged in interstate commerce:

“This suit was brought by Katie M. Webster, in her individual right and as temporary administratrix and legal representative of the estate of G. C. Webster, deceased, and as next friend for Doris Webster and Marguerite Webster, minors, against the Texas & New Orleans Railroad Company, in the Forty-First district court of El Paso county, Tex., which was tried upon plaintiff’s first amended original petition, wherein she alleged that in about the months of August, September and October of 1930, and for a long time prior thereto, G. C. Webster, now deceased, was an employee of the defendant, serving it in and near El Paso, Tex., as foreman of a switching crew; that defendant operated a railroad for transportation of freight and passengers, in cars propelled by steam engines, hauling and transporting large quantities of ears containing fruits, vegetables, and! other perishable foodstuffs -which required icing at regular intervals; that the proper refrigeration of such cars required defendant to have available at all times large quantities of ice ready to be shifted into the bunkers of -such refrigerator cars, and at the time complained of, and prior thereto, defendant maintained and operated,. und caused to be maintained and operated, a long icing platform situated along its switching tracks, adjacent to an industry known as Globe Mills, near the city of El Paso; that such icing platform was about three-fourths of a mile long and built at a height about the top of the refrigerator cars standing on defendant’s tracks alongside to be iced; that, in order to provide means for shifting the ice from the platform to the tops of the refrigerator cars, defendant caused to be provided along the entire length of the outside edge of both sides of said platform certain wooden aprons, each of which was in itself a unit built of heavy structural timbers, approximately, 1-2 feet in length, 2 inches in thickness, and 2 feet or more in width, weighing approximately 150 pounds, which apron was held together by metal' bands, and was hinged'to such platform by means of heavy metal hinges, so that, when not used, said apron was fastened in an upright position at right angles onto the floor of toe platform, but, when in use for the purpose of shifting ice from the platform to toe car top, the apron was lowered and held in a horizonal position, level with the floor of the platform, but extending outwardly to the edge thereof, the said apron being so arranged that it lowered from hinges on the bottom, and, when it reached a horizontal position was -held by a chain at each end attached to the side of the icing platform.
“That on the occasion in question Said G. C. Webster, in company with other employees of the defendant, carried one or more refrigerator cars which required icing from a point in the yards near the city of El Paso to said icing track. That, ‘prior to reaching the point at which said refrigerator car or ears and the engine propelling same had been stopped, the said Webster descended from said cars, or engine, upon whieh he was rid--ing, for the purpose of opening the necessary switches to allow the engine and cars to enter the proper track. That one of the said crew, being defendant’s brakeman or switchman, rode táe top of toe refrigerator ears, it being a part of his duties to give signals to the engineer, advising him when the car had reached the proper point. That the said Webster walked from the poinit at which he had descended from said car, cars or engine, to throw the switch to the point at which said cars had been stopped- under the signal from defendant’s employee on the top of such cars, and, as the icing operation had not begun by the time the said Webster reached the refrigerator cars, he started up the ladder on the side of one of the cars, being the easterly side thereof, said Webster being between the side of the refrigerator car and the icing platform, that is, he was ascending the ladder on the side of said car, and, at the time when the top of his head had extended somewhat beyond the level of the top of said refrigera-ito-r car, defendant’s employee, in the perforin-anee of its business and within the scope of his employment, without warning to the said Webster, released the fastenings on one of the above-described aprons and pulled the same over and outward toward the top of said car, allowing the same to fall with great force upon Webster’s head, somewhat to the right of the center thereof, wi-th such force as to knock the said Webster’s feet loose from the iron ladder on the side of said car and produced injuries of a painful and fatal n-a-ture. That such blow produced a large, severe, and painful swelling which soon suib-sided, and the said Webster experienced no further effects from said blow, so far as known to plaintiff, until about ten days or more after the said blow on the head, when peculiar sensations in his left side were felt, experienced, and spoken of by the said Webster, who nevertheless continued in the employment and service of defendant until such time -as he lost the use of his left side, and his condition grew worse until he died about April 28, 1931, eight months folio-wing the injuries sustained. That the blow on his head produced a severe jar, concussion, and injury to the right side of his brain so that some of the cells -thereof disintegrated, softened, and died; the use of the left side of the said Webster’s body -being progressively lessened.
“Negligence is alleged on the part of the brakeman in question, in lowering the apron as aforesaid, for which defendant is sought to be held liable for the death of the said G. 0. Webster.
“Plaintiff further alleged that she was toe lawful wife of the deceased, and there were bom of the marriage two children, to wit, Doris Webster, a girl seventeen years of age, and Margueritte Webster, a girl fifteen years of age; that plaintiff was the temporary ad-ministraitrix and personal representative of deceased, and that this suit was brought for the benefit of plaintiff, Katie M. Webster, and the two children, as well as for toe benefit of Mrs. Frances Spurlock, a daughter of deceased by a former marriage, she herself being now a married woman; that the above-named children are plaintiff’s sole heirs; that said deceased suffered conscious pain prior to his death; and plaintiff sued for §40,000 for actual pecuniary loss sustained by them, through the untimely dea-th of the said G. O. Webster, and for $10,000 for time lost during the incapacity of deceased prior to his death, and for mental and physical pain and anguish suffered by him, which was alleged to be to the damage of deceased and his estate.
“Defendant answered by general demurrer, general denial, and further answered that, as a condition precedent to employment in the railroad service, this defendant and the railroads of the country generally required application for employment to be written and filed by each applicant, and in this case deceased, G. C. Webster, did, on the 26th day of July, 1916, make out and sign his application in writing, duly acknowledged the same, and delivered same to the Galveston, Harrisburg & San Antonio Railway Company, this defendant’s lessor and predecessor in. title, for employment as ' switchman. That amongst other questions contained in said application bl;ank so executed by said Webster was the following: ‘Q. Have you ever employed or been represented by an attorney in connection with any claim or suit for damages against a railroad or street car company or other employer? If so, state fully all facts pertaining to such claim or suit, and give the name and address of the attorney and the disposition made of the claim or suit?’ to which the said G. 0. Webster answered in writing, as follows: ‘No.’
“That the said question called for information which was material and important in connection with the employment of the said G. G. Webster, and a material question to be considered in the railroad company’s determination of whether or not it would employ the said applicant. That the said answer of the said Webster was false and untrue, and was known by the said Webster to be such. That in truth and in fact the said Webster had, prior to the date of such application, been an employee of the Missouri, Kansas & Texas Railway Company of Texas, and claimed to have suffered an accident, and to have sustained serious and permanent injuries while in such employ and while working for said Missouri, Kansas & Texas Railway Company, in Belle Mead yards, on or about June 3,1915. That the said Webster thereafter, and on or about September 2,1915, had filed suit for damages against said railway company on account of such injuries, in the district court of McLennon county, Tex., Seventy-Fourth judicial district, and the said G. O. Webster had employed the law firm of Messrs. Shurtleff & Cummings, a copartnership composed of E. L. Shurtleff and B. Y. Cummings, to file said suit, and they had filed the same, for $20,000, claiming serious and permanent injuries, and representing the said Webster in the prosecution and settlement thereof, and had compromised and settled the same for a large amount of money. That the said answer of the said G. C. Webster was false and untrue, and constituted a fraud on the Galveston, Harrisburg & San Antonio Railway Company and this defendant, and in truth and in fact the said Webster, m consequence thereof, never became an employee of the Galveston, Harrisburg & Sam Antonio Railway Company, or of this defendant. That, when this defendant took over the operation of the Galveston, Harrisburg & San Antonio Railway Company, it took over all applications for employment, and continued the employees in its service, on the strength of such applications, and thereby in all things took the place and stead of the said Galveston, Harrisburg & San Antonio Railway Company, in connection with such employment and in the reciprocal rights and duties owing to each.
“That, at the time plaintiff claimed that the said G. C. Webster sustained his accident, the car which plaintiff alleged deceased was ascending was being transported in interstate commerce, and was loaded with produce being transported in interstate commerce, and the re-icing thereof was due in connection.' with such interstate commerce, and the rules and decisions of the United States Supreme Court are applicable in connection therewith, and the rights and duties of the said Webster were subject to and controlled by the laws of the United States, and the Federal Employers’ Diability Act (45 USOA §§ 51-59).
“Defendant further answered that, if deceased was in fact and in law an employee of the defendant, then defendant and deceased were both, at the time, engaged in interstate commerce and in furtherance thereof, and injuries of the said deceased, if any, were due to risks and dangers incident to his employment, and risks and dangers which he knew of, or must necessarily have known of, and were risks and dangers assumed by him, for which defendant is not liable.
“The case was tried before a jury during the month of December, 1931, and the court submitted the case to the jury on special issues ; he having first refused defendant’s request for peremptory instruction. The court also refused certain special issues asked by the defendant after the court had refused its request for peremptory instruction. The jury, in response to the issues submitted to them by the court, found that the deceased, G. C. Webster, suffered injuries to his head by being struck by an apron lowered to connect the top of the refrigerator car with the platform; that the employee lowering same was acting at the time in the business of defendant and within the scope of his employment; that t'he said employee, lowering the apron, omitted to keep a lookout; that he was negligent in so doing, and that the same was the proximate cause of the death of the said G. C. Webster; that he lowered such apron with unnecessary violence; that same was negligence, and was the proximate cause of the death of the said G. C. Webster, but that the same was not due to risks and dan-gors assumed by tbe deceased, G. 0. Webster; that tbe surviving wife of tbe deceased and tbe two daughters, Doris and Margueritte, suffered pecuniary damages as the result of tbe death of tbe said G. O. Webster, which damages amounted to $27,000, $2,000 of which was for conscious pain and suffering and loss of time prior to the death of the said Webster. Of this amount, $16,000 was apportioned to Katie M. Webster, and $5,500 to each of the minor daughters.
“On these findings of the jury, the court, on December 14, 1931, entered judgment for Katie M. Webster, as administratrix of the estate of G. G. Webster, deceased, against the Texas & New Orleans Railroad Cbmpany for the sum of $27,000, and 6 per cent, interest thereon from date, apportioning the same as found by the jury.”

From the judgment entered, the defendant railroad company duly prosecutes this appeal.

Opinion.

Appellant presents thirty assignments of error, each of which is submitted separately as a proposition, and in addition thereto additional propositions are urged.

Appellant summarizes the assignments and additional propositions and discusses them under five points, and we will consider them as so arranged.

First. It is urged that the trial court erred n not peremptorily instructing a verdict for appellant because (a) the uncoritroverted evidence showed that G. O. Webster, the deceased, had obtained his employment with the Galveston, Harrisburg & San Antonio Railway Company, of which appellant was its successor, by false and untrue representations material to his employment, as more fully stated above, by reason of which appellant submits that Webster never became an employee of either pf said railroad companies, the rights of appellee herein to recover being governed by the laws of the United States and the Federal Employers’ Liability Act; (b) the uneontroverted evidence showed that the switchman, Campbell, who lowered the gate or apron in question, in so doing was not acting within the scope of his employment, or in furtherance of the business of his master, appellant; (c) the uncontroverted evidence showed that the deceased, C. G. Webster, knowing and appreciating the dangers in so doing, and while engaged in interstate commerce, chose an unsafe way to get to the top of the car by climbing up immediately beneath where the apron was to be lowered, and that, when he did so, he being an experienced switchman, knowing and appreciating the dangers incident thereto, when a safe and convenient way was offered, that is, by climbing to the top of the car at some other place than immediately under the apron in question, he assumed the risk of doing the work in an unsafe way.

On the first contention claiming error in not peremptorily instructing a verdict for appellant as indicated under (a) and (b), based on the question to Webster by the Galveston, Harrisburg & San Antonio Railway Company, and his answer thereto as to whether he had ever been employed or been represented by an attorney in connection with any claim or suit, and, as more fully stated above, the evidence shows that in Webster’s application for employment with the Galveston, Harrisburg & San Antonio Railway Company in 1916 the question was asked him and the answer thereto given as in the above statement, to the effect that he had never been employed or been represented by an attorney in connection with any claim or suit for damages against a railroad or street ear compariy or other employer, and, if so, to state fully all the facts pertaining thereto, and give the name and address of the attorney, etc. To the question Webster answered, “No.” Without stating the evidence at length, it shows that, previous to said question and answer, Webster had sustained an accident while working for the Missouri, Kansas, & Texas Railway Company, a railroad company; that he had employed attorneys to represent him; that his attorneys had filed suit in his behalf against the employer railroad company for his claimed injuries, and that the suit had been settled for a sum paid. The evidence of L. B. McDonald, general manager of the Southern Pacific Lines in Texas, shows that, had the question to Webster, as above, been truthfully answered, the Galveston, Harrisburg & San Antonio Railway Company would not have employed Webster. The evidence shows that the operation of the Galveston, Harrisburg & San Antonio Railway Company, under authority of the Interstate Commerce Commission, was taken over by appellant, and that, in taking over the operation, appellant took over the employee’s records, applications, contracts, and various matters of that sort which the Galveston, Harrisburg & San Antonio Railway Company had.

Waiving the question as to whether Webster was an employee of appellant at the time of his injury, the suit being brought under the Federal Employers’ Liábility Act, and Webster at the time, whether rightfully or wrongfully, was in fact acting as a switch-man for appellant then engaged in interstate commerce, the decisions of the federal courts will control upon the questions involved where there is a conflict between the federal courts and the state courts. Fort Worth & D. C. R. Co. v. Griffith (Tex. Civ. App.) 21 S.W.(2d) 351, and cases cited.

It is a well-established rule of decision by the Supreme Court of the United States, and uniformly followed by our Texas Courts, that in proceedings brought under the Federal Employers’ Liability Act rights and obligations depend upon the construction the Supreme Court places upon said act. New Orleans & N. E. Railway Co. v. Harris, 247 U. S. 367, 38 S. Ct. 535, 62 L. Ed. 1167 ; Minneapolis, St. P. & S. S. M. Railway Company v. Rock, 279 U. S. 410, 49 S. Ct. 363, 73 L. Ed. 766; Philadelphia, B. & W. R. Co. v. Schubert, 224 U. S. 603, 32 S. Ct. 589, 56 L. Ed. 9.11; Watson v. St. Louis, I. M. & S. R. Co. (C. C.) 169 F. 942.

The question is then presented: Was the court in error in not peremptorily instructing a verdict for appellant as duly submitted and requested by appellant, for the reason that at the time of his injury Webster was not an employee of appellant, by reason of the said question and answer submitted to him by the Galveston, Harrisburg & San Antonio Railway Company.

Webster’s answer to the question was not as explicit as might have been, but we think by the answer Webster conveyed the idea that he was never connected with any claim or suit for damages as expressed in the question. It is true, as suggested by appellee, that in his application for employment Webster stated that he had been injured, which occurred at Waco, Tex., by the brake wheel; that the injury was a bruised back. But, as we view it, the point of the inquiry was not so much as to a previous injury but the prosecution of a claim for such injury, and which he denied. So considered in making the answer, we think the evidence shows a deception and an adequate cause for a rejection of his application for his employment had the Galveston, Harrisburg & San Antonio Railway Company, propounding the question, known the facts disclosed by the record.

Appellee, however, contended in the trial court, and makes the contention here, that appellant is in no position to take advantage of any statement made by Webster in the application for employment offered in evidence, conceding for the purpose of the question that Webster’s answer was an untrue and willfully false statement to the facts inquired about. The contention is to the effect that, the' statement not having been made to the appellant, but to the Galveston, Harrisburg & San Antonio Railway'Company, appellant had, and now has, no legal right to rely on such statement, and that, if appellant did rely upon it, it did so at its own risk.

The record shows that Webster was examined on his application for employment with the Galveston, Harrisburg & San Antonio Railway Company on July 26, 1916; that he \yas employed by the Galveston, Harrisburg & San Antonio .Railway Company and worked as switchman for that company until taken over by appellant on March 1, 1927, and then worked for appellant as- switchman until he was injured, • in ■ September, 1930, as complained of in this suit, and then for some time thereafter; that the Galveston, Harrisburg & San Antonio Railway Company'and appellant, Texas"& New Orleans Railroad Company, are' separate and distinct corporations. The' latter corporation took over the operation, employees, the records, applications, contracts, and various things of that kind, of the former corporation; it was the practice of the said railroad companies to make investigation of .the past record of new employees’ as promptly as possible. The record does not show whether the past record of Webster was investigated by either company, or whether either company relied on the statement made by Webster in his application as being true. We think from the evidence it might be presumed that such investigation was made, and that the Galveston, Harrisburg & San Antonio Railway Company relied on the statement as being true. Witness McDonald said that, had Webster answered affirmatively that he had such suit, giving the names and addresses of his attorneys, and stating fully the facts of such claim or suit, and the disposition made of the claim or suit, the Galveston, Harrisburg & San Antonio Railway Company would not have employed Webster. The reason given was: “We (the companies) have a certain code of ethics in our operations applicable, which requires that they be men of good moral character, not troublesome, not inclined to be litigating over matters of minor importance, and that they should properly adhere to the policy of proper relations between the employing company and the employee. This requirement takes into consideration the safety of the other employees and'the public generally, insofar as they require men to he in good physical condition; that is the very foundation, in fact, the very fabric.”

The record shows that, at the time of Webster’s employment by the Galveston, Harrisburg & San Antonio Railway Company, he turned over to that company his service letter from the Missouri, Kansas & Texas Railway Company, against which he had his claim and filed his suit, showing his employment by that company for'more than a year next preceding his employment by the Galveston, Harrisburg & San Antonio Railway Company. From all of the facts and circumstances shown, appellee submits that the facts indicate that after investigation was made the Galveston, Harrisburg & San Antonio Railway Company with full knowledge of all the facts surrounding Webster’s previous injury, and his subsequent continuous service with the Galveston, Harrisburg & San Antonio Railway Company and appellant, for some fifteen years, said companies had elected to keep Webster as an employee, and that by reason thereof it should not now .be held as a matter of law that appellant is under no liability for its negligence, as found by the jury.

We have concluded that, while Webster’s position as as employee of appellant is essential to the right of appellee to recover under the Federal Employers’ Liability Act, this court would not be justified under the record in holding that he was not of right an employee within the meaning of the act. The evidence, in our opinion, is not of that degree of certainty that we can say that Webster obtained and held his place with the two companies through all the years through fraudulent means. Should we he in error in so holding, the evidence shows that the misrepresentations made by Webster in obtaining his employment were made to the Galveston, Harrisburg & San Antonio Railway Company, and not to appellant. Appellant took Webster over as .an employee in taking over the Galveston, Harrisburg & San Antonio Railway Company. The evidence shows that appellant took over Webster as an employee by permission of the Interstate Commerce Commission, and the Texas Railroad Commission, and investigated Webster’s standing as an employee after taking him as such. Was Webster of right an employee of appellant, or did his misrepresentation to his former employer destroy that right within the meaning of the act? True, it may be said that, if Webster was never an employee of the Galveston, Harrisburg & San Antonio Railway Company, he was not of right an employee, though taken over as such by appellant; that, not having disclosed the facts embodied in the question to him on his application, his status was at all times wrongful and at all times continuous and destroyed his right to be an employee.

We have found no ease directly in point.

It seems to be settled law that, if a false statement be made to one person to induce him to act, the balance of the world has no legal right to rely on it, and especially would that seem to be the rule where the world does not rely on it and assumes to itself to investigate for itself and does investigate, and for years acts upon the result of its investigation. The above seems to be the rule of decision. McCracken v. West, 17 Ohio, 16; Wells v. Cook, 16 Ohio St. 67, 88 Am. Dec. 436; McKee v. Rudd, 222 Mo. 344, 121 S. W. 312, par. 1, 133 Am. St. Rep. 529; Hunnewell v. Duxbury, 154 Mass. 286, 28 N. E. 267, 13 L. R. A. 733; Hindman v. First Nat. Bank (C. C.) 86 F. 1013; McCane v. Wokoun, 189 Iowa, 1010, 179 N. W. 332, par. 3; Webb v. Rockefeller, 195 Mo. 57, 93 S. W. 772, 6 L. R. A. (N. S.) 872.

It is not claimed that appellant was in any manner deceived or misled by said misrepresentations in employing or retaining Webster in its employ.

Appellant requested and the court refused to give in charge to the jury its special issue No. 3, to the effect, in substance, whether the jury found that the answer of Webster in his application for employment made to the Galveston, Harrisburg & San Antonio Railway Company, to the effect that he had not employed attorneys in any suit, etc., as in the question stated above, in his application for employment; and applicant requested and the court refused to give special issue No. 3-A, in the event the jury should answer No. 3 in the affirmative, issue 3-A being, in substance, did the jury find that, if Webster had truthfully given the information requested as to whether or not he had a former suit against any railroad, etc., as in the question stated on his application for employment, whether the railroad company (Galveston, Harrisburg & San Antonio Railway Company) would have employed him. We see no error in such refusals.

The issues submitted were not made issues in the answer, they were evidentiary only, the statements were not made to appellant, and whatever statements were made were not controverted in the evidence and were not issues for the jury.

The court refused to give appellant’s requested charge 3-B, to wit: “Do you find from the evidence that the T. & N. O. Railroad Company took over the contracts, applications and operation of the G. H. & S. A. Railway Company, and operated the same under the same conditions as it was being operated by the G. H. & S. A. Railway Company?”

We see no reason why such issue should have been submitted to the jury. There was no controversy in the evidence that such was not done. The evidence shows that such was done, and there was no issue to submit to the jury. Had appellant so desired for any purpose, the .court could properly have instructed the jury that the Texas & New Orleans Railway Company took over the contracts, applications, and operation of the Galveston, Harrisburg & San Antonio Railway Company and operated the same, as in the question stated.

Appellant assigned error to the court’s refusal to give its requested peremptory instruction, for the reason, as submitted, that the uneontroverted evidence shows that switchman Campbell, in lowering the apron, was not acting within the scope of his employment as an employee of appellant railroad company.

The evidence shows that switchman Campbell was a member of the switching crew in the employ of appellant of which the deceased, Webster, was, during bis lifetime, and on tbe occasion in question, foreman switchman. At tbe time and place of tbe accident, Campbell was acting as long field man; bis duty on tbe occasion included that of throwing the switches and ride tbe tops of the cars to destination for the purpose of spotting the cars by tbe icing platform, and on the occasion in question the cars were being spotted by the train crew for the purpose of being iced. The evidence shows that proper refrigeration of larger quantities of cars containing fruits*, vegetables, and other perishable foodstuffs required icing at intervals, and for that purpose appellant had at all times ice ready to be shifted into the bunkers of its refrigerator cars, and at the time involved here appellant maintained and operated a long icing platform situated along its switching tracks adjacent to an industry known as Globe Mills; that such icing platform was about three-fourths of a mile long and built at a height about the top of the refrigerator cars standing on appellant’s tracks alongside to be iced; that, as a means for shifting the ice from the platform to the tops of the refrigerator cars, appellant caused to be provided along the entire length of the outside edges of said platform certain wooden aprons, each within itself a unit, and built of heavy structural timbers, approximately 12 feet in length, 2 inches thick, and some 2 feet wide, weighing.some 150 pounds, which apron was hinged to such platform by means of hinges, so that, when not used said apron was fastened in an upright position at right angles to the floor of the platform, and when in use for the purpose of shifting ice from the platform to the car top, the apron was lowered and held in a horizontal position level with the floor of the platform, and extending outwardly from the edge thereof some 2 feet or more and slightly higher than the top3 of the ears and far enough out from the platform to enable blocks of ice to be skidded from the platform across the apron to the tops of the cars.

We copy here from the statements of some of the witnesses, presented in question and answer form. •

The switching crew in charge of the train at the time the matters in controversy occurred were: Schwartz, engineer; D. L. P. Duke, fireman; G. C. Webster, deceased, foreman of the switching crew; G. McSorley, Wesley Black, and Mr. Campbell were switchmen and members of the crew.

D. L. P. Duke testified:

“Question; Just prior to the time you ran in on this icing track, was it necessary to throw a switch to let those cars go in there or not?” (pushing the train from the main track to the side tracks on either side of the icing platform at Globe Mills). Answer: It was necessary to throw; two switches, one to get off the main line on to the lead and two tracks come together just south of the. platform ; one leads on the west and one on the east side of the platform, and we headed in on the track on the west side of the platform and it was necessary to throw that switch.”
“Question: Who threw the first switch, if you know? Answer: I think Campbell, the long field man threw both of them * * * that was his job.

“Question: Who was on top of the car-to signal you to stop by the icing platform, where to stop? Answer: Well, he (supposedly Campbell) had gotten back on top. There were two men on top of the cars going out there.

“Question: Now Webster got off. Where was Webster riding going out? Answer: He rode the engine.
“Question: When you first got out there and took the lead off the main line, where did Webster get off? Answer: As well as. I remember Webster rode with us until we had' spotted the cars and stopped. * * *
“Question: At that time you say Mr. Campbell was on top of the cars. Answer: Campbell and McSorley were both up there until they threw the switch. McSorley stayed at the last switch and line up behind us.
“Question: Then when you ran in and stopped by the pile of ice, McSorley was at the last switch, and Webster was on the engine and Campbell was on top of the car giving the signal where to stop? Answer: I think Campbell was on the car; I couldn’t say because I could not see him.
“Question: They were signaling to Schwartz, the engineer? Answer: They were signaling on his side, yes, sir.
“Question: But Campbell was not on the engine with you? Answer: No.
“Question: And you are sure he was on top of those cars somewhere? Answer: Xes. * * *
“Question: Now, how long had the cars been spotted there do you think before the accident occurred to Mr. Webster? Answer: Well, I suppose it was about a minute or two minutes possibly before the engineer 'called to me and told me Webster was hurt.”

Witness jumped off the engine and ran to where Webster was. When witness reached the place, Webster was up about the top of the car hanging on the side of the car. Switchman Campbell was on top of the car holding Webster by the arm. Switchman Black was behind Webster pushing up against, holding him, pressing him against the car. Witness climbed up the end ladder and told Campbell that he would hold Webster until Campbell could elimb down when Webster said he was all right and could get down, which he did.

Witness further testified:

“Question: It is no part of the duties of the railroad company employees to put these aprons down, that is the duties of the employees of the Globe Mills, isn’t it? Answer: That is my understanding.
“Question: The Globe Mills are the people who sell the ice and deliver it, that is correct, isn’t it? Answer: Yes.
“Question: And' this apron is put down by their men as they drag the ice across the platform? Answer: Yes, sir.
“Question: The employees of the Globe Mills, as a matter of fact, fill the bunkers? Answer: Oh, yes.
“Question: And the bunkers are filled from the top of the car? Answer: All we do is spot the car.
“Question: It is none.of your business to load it? Answer-: Oh, no.
“Question: Now, as a matter of fact, the company employees, the switchmen and brakemen, on top of these cars customarily let these aprons down themselves when they go in there to spot a car, wouldn’t they? Answer: I would not say it was customary, may be sometimes they do, and sometimes they do not.
“Question: It was a matter frequently done by them, wasn’t it? Answer: I would not say. it was, but I have seen it done.”

G. McSorley testified:

“Question: Mr. McSorley, the switchmen or brakemen on top of those cars when they run in there, when cars are spotted by the piles of ice customarily help out the icing man by letting those aprons down on many occasions, don’t they? Answer: Well, the idea of dropping those, which we all do and have done, is when we shove into the ice house, one of us is possibly on top of the car and we will drop the apron so we can climb over on the platform so we are out of the way of the icing platform man.
“Question: But those aprons are customarily dropped by the brakeman or switchman.? Answer: Yes, sir.
“Question: That has always been the custom since you have had this platform? Answer: Lots of times we do that so we can get over on the platform.”

Charles M. Griggs, employee of the Pacific Eruit Express, testified that it was the duty of the Pacific Eruit Express to put the apron down, and not the duty of the railroad crew.

The uncontradicted evidence shows that switchman Campbell let down one of the aprons, striking Webster on the head while Webster was attempting to climb on top of the car. Appellant submits that the uncon-troverted evidence is to the effect that it was no part of the duty of switchman Campbell to lower the apron, and that in so doing he was not acting in furtherance of the master’s business, or within the scope of his employment.

The jury found, under the court’s charge, that the apron was lowered by an employee .of appellant “acting at the time in the business of the defendant.”

On a special charge submitted by appellant, the jury found that “switchman Campbell in lowering the apron in question was acting within the scope of his duties as a switchman in the employ” of appellant.

The facts entering into the question presented might be summarized briefly as follows: Appellant was a common carrier, and, at the time of the accident to Webster, appellant and its employees handling its train of cars to be iced were engaged in interstate commerce. It was primarily appellant’s duty to ice the ears it had then spotted to be iced, and to perform that duty it had prepared the necessary facilities, such as the platform on which the ice was to be carried from the Globe Mills to the several places for delivery, the aprons over which the ice was to pass from the platform into the several cars; had spotted the several cars on its track along the platform to receive the ice, and through the Globe Mills, as possibly an independent agency, had provided the ice that was to be put into the bunkers of the several cars; in fact, every step taken on the occasion in question, as well as every facility used, was in effect for the primary purpose of enabling appellant to ice the ears it had spotted to ice. It was necessary to let down the apron as a thing to be done to ice the cars. To do so was not an act foreign to the purpose of icing the cars; in a general sense, it was an act in furtherance of the master’s business then being done in icing the cars. The difficult question presented is whether in letting down the apron switch-man Campbell was acting within the scope of his employment as switchman. The evidence is that the brakeman or switchmen customarily dropped the aprons so that they could get from the cars over on the platform and out of the way of the icing platform man, and back to the cars. As said by Judge Buck of the Fort Worth Court in Hill v. Staats (Tex. Civ. App.) 189 S. W. 85, 86: “There is considerable contrariety of holding upon the question of what constitutes the ‘scope of the servant’s employment.’ ” Judge Buck, on a motion, for rehearing, quoted with approval what is said in the recent work of “Berry on Law of Automobiles,” in which quotation it is said: “The phrase ‘in the course, or scope, of his employment, or authority,’ when used relative to the acts of a servant, means while engaged in the service of his master, or while about his master’s business. * * * It must appear that the acts complained of were done by him while performing the duties pertaining to that employment. * * * The test is whether the act done was in the prosecution of the business in which the servant was employed to assist. He may he acting within the scope of his employment, although ■disobeying the .express commands of the master at the time. The question of the ignorance or consent of the master has no bearing upon his liability.”

As said by the Supreme Court in International & G. N. Ry. Co. v. Anderson, 82 Tex. 516, 17 S. W. 1039, 1040, 27 Am. St. Rep. 902: ‘To hold the master liable for the act of his servant, it is not necessary that the servant should have authority to do the particular act. * * * But the act must be done within the scope of the general authority of the servant. It must be done in furtherance of the master’s business, and for the accomplishment of the object for which the servant is employed.”

While the question presented is difficult to determine, we are not prepared to say that the record presents reversible error.

■Without further quoting, the following authorities seem to be in point and support ap-pellee’s contention: Gulf Refining Oo. v. Tex-arkana & Ft. S. R. Oo. (Tex. Oiv. App.) 261 S. W. 169; American Produce Co. v. Gonzales (Tex. Oiv. App.) 294 S. W. 273; Missouri, K. & T. R. Co. v. Edwards (Tex. Civ. App.) 67 S. W. 891; Ingram’s Administratrix v. Rutland R. Co., 89 Yt. 278, 95 A. 544, Ann. Oas. 1918A, 1191, and note; New York Cent. R. Co. v. Marcone, 281 U. S. 345, 50 S. Ct. 294, 74 Xj. Ed. 892; Homan v. Borman (Tex. Oiv. App.) 19 S.W.(2d) 438; Pierce-Fordice Oil Ass’n v. Brading (Tex. Oiv. App.) 212 S. W. 707

The court refused to give appellant’s requested issues Nos. 4, 4-a and 4-b, presenting the ultimate issue of assumed risk by the selection on the part of Webster of an unsafe way to climb on top of the ear when a safe and convenient one could have been selected.

The jury found that the injury to Webster was caused by the negligence of switchman Campbell in lowering the apron, and that such negligence was the proximate cause of the death of Webster. The following authorities we think sustain appellee’s contention that Webster’s method of reaching the top of the car by climbing thereto at the time and place he did would not have been unsafe except for the negligence of switchman Campbell in let; ting down the apron, and that under such circumstances the theory of choice of methods of performing the work is not applicable, and assumed risk is not applicable: Galveston, H. & S. A. R. Co. v. Andrews (Tex. Civ. App.) 291 S. W. 590; Texas & N. O. R. Co. v. Bell (Tex. Civ. App.) 28 S.W.(2d) 853; Chicago, R. I. & P. R. Co. v. Ward, 252 U. S. 18, 40 S. Ct. 275, 64 L. Ed. 430: Chesapeake & O. R. Co. v. Proffitt, 241 U. S. 462, 36 S. Ct. 620, 60 L. Ed. 1102; Texas & P. R. Co. v. Aaron (Tex. Civ. App.) 19 S.W.(2d) 930 (writ refused, certiorari denied, 281 U. S. 756, 50 S. Ct. 409, 74 L. Ed. 1166); Erie R. Co. v. Purucker, 244 U. S. 320, 37 S. Ct. 629, 61 L. Ed. 1166.

We might state also that the. trial court in the main charge submitted to the jury the issue as to whether the injury to Webster was due to a risk or danger assumed by him as an employee of appellant,- to which the jury answered, “No.” Appellant-submits that the-ease of Southern Pacific Co. v. De la Cruz (Tex. Com. App.) 228 S. W. 108, is applicable and controlling under the facts of this case. In that case, as we view it, there was no question or issue of negligence on the part of the railroad company or its employees; as here, which in itself made the one way of doing the work hazardous. We see no conflict between the De la Cruz Case and the cases above cited.

Katie M. Webster, suing in her individual right and as temporary administra-trix and legal representative of the estate of G. O. Webster, deceased, and as next friend of Boris and 'Marguerittq Webster, minors, was permitted to testify, in substance, over objection, that on-the evening in question her deceased husband'(Webster) told her that he “like to have gotten killed,” and showed a lump on his head; he did not regard it as anything serious, nor did witness; witness began to notice that the fingers of his left hand began to'tingle and he had a numbness in his arm; he complained all the time; he grew worse all the time, had no grip in his hand; his arm would swing just from the shoulder; you could see it in his walking, it progressed further in the left limb; at times when he would get up and start to walk he would fall; and other observations of witness as to his condition. -

Doris and Margueritte Webster each were permitted to testify-, over objection, that immediately after their father came in on the afternoon of the accident “he tóld us about this accident he had and showed us the bump on his head and kept complaining about a headache,” and stated some symptoms they noticed as to his condition. They also stated that their father had discussed plans as to their schooling and in business course — that they were to have a good- education.

Appellant submits that all of such testimony was inadmissible under article 3716 of our Civil Statutes; that suclu testimony waá “as to transactions with or statements by deceased.”

The evi&ence shows that the deceased made the remark to witness- that he “liked to have gotten killed,” and showed the lump on his head, but the greater part of the matter embraced in the bill of exceptions were observations made by the witness of her husband’s condition separate and apart from his stated remark. The remark that he “liked to have gotten killed,” and that the deceased “did not regard it as serious,” if deceased so remarked, we think were objectionable as being a statement by the deceased, but what the witness observed as to the lump on the head, and what witness observed as symptoms appearing reflecting his condition, such as “the fingers of his left hand began to tingle, and he had a kind of numbness in his arm,” and that “that condition grew worse,” and that “he did not have any grip in his hand,” “that he would fall,” and other statements as to his condition observed by the witness apart from any statement of the deceased, we do not think were objectionable as being “transactions” or “statements.” We may not extend the language of the statute beyond its plain words. Cook v. Baker (Tex. Com. App.) 45 S.W.(2d) 161; Clemens v. Perry (Tex. Civ. App.) 29 S.W.(2d) 529; King v. King’s Unknown Heirs (Tex. Com. App.) 34 S. W. 804.

To have the bill of exceptions considered as presenting reversible error, the .rule seems to be that, “if the exception goes to the whole of the testimony complained of, and a part is .admissible^ the objection * * ⅜ will not be considered.” Wells v. Hobbs, 57 Tex. Civ. App. 375, 122 S. W. 451, 453; Lanham v. Lanham, 62 Tex. Civ. App. 431, 146 S. W. 635. But, should we be mistaken in that, is article 3716 applicable here where Mrs. Webster recovered as in the judgment, only in the capacity as administratrix of the estate of Grover C. Webster, deceased, and the recovery being for damages sustained for injuries received while employed by appellant in interstate commerce? We think the record shows no reversible error by reason of her testimony. The testimony of Doris and Margue-ritte was withdrawn, and the court instructed the jury that same was withdrawn and .not to consider , same.

Appellant insists that the findings of the jury and the judgment of the court based thereon are unsupported by the evidence, and that the preponderance of the evidence showed that the deceased, long prior to the accident in question, was suffering from syphilis ; that same was an arrested ease, but that Webster’s death resulted from syphilitic condition and not from the injury complained of.

The jury found that Webster’s death resulted from an injury negligently inflicted on him by a switchman of appellant in letting down an apron on' his head, thus causing an injury from which Webster died. The evidence on the issue is too extensive to reproduce here. We have carefully studied the testimony, and have concluded that the jury’s findings are sufficiently supported by the evidence. We have stated the undisputed facts as to the letting down of the apron on Webster’s head while he was in the act of climbing to the top of the car.

The evidence of physicians who testified on the trial show that an autopsy was performed on the body of Webster which included an examination of the “thoracic and abdominal viscera, and the brain, removing the brain, and a part of the spinal cord, making gross and microscopic examination and tests thereof.” Witnesses testified they found no evidence whatever of syphilis in Webster’s brain; that a detailed study of Webster’s brain was made; that the heart and the aorta were in condition in which they would not have been if Webster had had syphilis.

The accident to Webster occurred in September, 1930; Webster laid off from work as switchman about February 16,1931. Dr. Herbert Stevenson testified that he treated Webster prior to March 2, 1931, for a brain condition which witness considered the result of an injury on the head. Witness testified that he assisted in making an autopsy of Webster’s brain about April 30, 1931, and found no thrombosis of the blood vessels feeding the brain or any portion of it. It was stated to witness, Dr. Stevenson, that on February 18, 1931, and subsequent thereto, Wasserman tests were made of Webster’s blood, and of his spinal fluid, and each test showed negative ; witness was asked whether or not, if Webster had sufficient syphilitic acitivity in hs blood stream to produce a thrombosis, that is, the obstruction of a blood vessel by a clot of blood, it would have shown positive in those Wasserman tests, to which the witness answered it would.

The evidence shows that the Wasserman test is the most accurate test known to the medical science for the determination of the presence of syphilis.

Other evidence in the record, in connection with the above, is sufficient, we think, to sustain the jury’s findings.

After a careful review of the evidence, we have concluded that reversible error is not made to appear, and the case is affirmed.


source: Caselaw Access Project

author: WALKER, C. J.

license: Public Domain

text:
    MORRIS v. McCALL et al.
    No. 2259.
    Court of Civil Appeals of Texas. Beaumont.
    Oct. 20, 1932.
    Rehearing Denied Oct. 26, 1932.
    H. W. Carothers and Walter P. Brown, both of Houston, for appellant.
    S. A. McCall, of Conroe, John D. McCall, of Dallas, E. R. Campbell, of Houston, and Crawford & Crawford and W. N. Poster, all of Conroe, for appellees.
   WALKER, C. J.

On the 18th day of October, 1930, A. M. Madeley, J. B. Nutter, and J. N. Cooksey, under authority of the articles 5979-5997, R. S. 1925, filed their petition against Judge A. W. Morris, county judge of Montgomery county, praying for his removal from the office of county judge. On that date the petition for removal was presented to Hon. S. A. McCall, district judge of Montgomery county, who entered thereon his order, temporarily suspending Judge Morris from the office of county judge, and appointed Judge C. T. Smith to fill the vacancy created by the order of temporary suspension. Judge Smith duly qualified and assumed the duties of this office, which he held until the 26th day of November when, judgment having been- rendered in favor of Judge Morris in the removal suit, he was duly reinstated in his office. This suit was instituted by Judge Morris against Madeley, Nutter, and Cooksey, the relators in the removal suit, Judge S. A. McCall, the district judge who entered the order of removal, Judge S. A. Crawford, Hon. W. N. Poster, and J. Wahren-berger, to recover $10,000 actual damages and $10,000 exemplary damages, as resulting to him from the institution and prosecution of the removal suit and his temporary suspension from office. There was no count in the petition for the loss of emoluments of office during the period of temporary suspension, nor was there any evidence offered upon the trial of this cause on that issue. The case was tried to a jury and judgment was entered against Judge Morris upon an instructed verdict, from which he has duly prosecuted his appeal to this court. We take the following analysis of appellant’s petition from appel-lees’ brief:

“Plaintiff’s petition alleged that the defendants ‘conspired and agreed to file and caused to be filed, in the District Court of Montgomery County, Texas, a proceeding for the removal of plaintiff from his office as County Judge, charging plaintiff with various acts of alleged official misconduct in his office as such County Judge. That it was a part of such agreement and conspiracy, that defendants Madeley, Cooksey and Nutter should act as relators and file their petition in said District Court, charging plaintiff with official misconduct, as aforesaid, and said McCall, District Judge, should immediately, upon the filing of said petition, enter an order temporarily suspending plaintiff from said office-until the case should be tried on its merits. * * ⅜ That said defendants filed in the District Court said suit * * * in which petition, various acts of alleged official misconduct on the part of plaintiff with reference to his office as County Judge,'were charged against the plaintiff; and, pursuant to said conspiracy, defendant McCall, at such late hour of the night, entered an order temporarily suspending plaintiff from his office as County Judge, and temporarily appointing C. T. Smith as temporary County Judge during the time of such suspension.

“ ‘That the charges of alleged official misconduct on the part of plaintiff did not on their face constitute official misconduct on the part of plaintiff as such County Judge, and said charges were untrue, and defendants had no probable ground for instituting such proceedings, and causing plaintiff to be temporarily suspended from his office, * * * and defendants acted maliciously.

“ ‘That all of defendants participated in the prosecution of such charges, and in 'causing same to be filed against plaintiff, and the other defendants aided, abetted, encouraged and assisted the relators in the prosecution of such proceeding, counselled and advised same and took active part in the filing of such charges, and the conduct of such proceeding.’

“Plaintiff then, based upon the above allegations, asked for his damages, alleging that he is and was a practicing lawyer and said suit has greatly injured him in his professional standing and his ability to earn money as an attorney; and that he has been injured in his reputation, and has been held up to public scorn and ridicule by reason of said facts, and has been caused to suffer great mental anguish and physical pain, and will continue to so suffer. Defendants urged a general demurrer:”

, Opinion.

Without detailing the testimony offered upon the trial of this case, but only for the purpose of discussing the propositions of law presented by this appeal, we will assume that appellant’s pleadings and evidence raised the issues that appellees instituted the removal suit and prosecuted it to judgment with malice and without probable cause and, as a result of the filing and prosecution of the suit, appellant suffered the actual damages sued for. Upon this fact conclusion, whatever may be the character of the evidence raising these issues, it is our judgment that none of appel-lees were liable to appellant for any of the damages sued for. ¡ •

The following brief statement from ap-pellees’ brief presents fairly appellant’s case against Judge McCall: “Plaintiff’s petition alleges that defendant, McCall, was the qualified and acting district judge of the county, and agreed with the other defendants that if they should file the ouster suit, he would immediately enter an order temporarily suspending plaintiff from his office, and before such proceeding was filed, said defendant solicited one of the citizens of the county to accept the office of temporary county judge, ¿s soon as such proceeding should be filed, and he should be authorized to proceed- with such suspension; that pursuant to said agreement, said defendant, upon the presentation to him of such petition, entered an order temporarily suspending plaintiff from his office, and appointing C. T. Smith as temporary county judge. That the charges made 'in the petition were not true, and did not constitute otfl- • cial misconduct, and that the acts bf said defendant were done maliciously.” ' ’

By the removal statutes cited above, Judge McCall was given jurisdiction over the issues raised by the petition for removal, and by article 5982, if he saw fit, to suspend Judge Morris temporarily from office. The consideration by Judge McCall of the petition, the making by him of the statutory orders in relation thereto, the time of making these order's, and the order of temporary removal, involved the exercise of the judicial powers vested in him by these articles of the statute. While Judge McCall was given the power to make these orders upon the presentation to him of the petition, by article 5979 he was not required to make them. The clear intent of these removal statutes is to require the district judge to give a careful consideration .to the petition of removal and to make such orders in relation thereto as, in his judgment, acting in his judicial capacity, the exigencies of the situation require. Poe v. State of Texas, 72 Tex. 629, 10 S. W. 737; Griner v. Thomas, District Judge, 101 Tex. 39, 104 S. W. 1058, 16 Ann. Cas. 944.. Having thus acted within his judicial discretion, he was not civilly liable to appellant for the consequences of his act, quoting from appellees'’ brief, “even though the same were done negligently, wil-fully or maliciously.” The authorities of this state fully sustain this proposition. Rains v. Simpson, 50 Tex. 495, 32 Am. Rep. 609; Taylor v. Goodrich, 25 Tex. Civ. App. 109, 40 S. W. 515, 519; Kruegel v. Cobb, 58 Tex. Civ. App. 449, 124 S. W. 723, 728. Rains v. Simpson, supra, so clearly sustains the judgment of the lower court in favor of Judge McCall, that we quote therefrom as follows:

“We find for our guidance decisions of the highest courts of last resort. In the case of Tates v. Lansing, 5 Johns. [N. Y.] 282, the question of the personal liability of judicial officers for official acts was most, elaborately considered by Chief Justice Kent, and it was shown that, from the time of the Yearbooks, it was a settled principle and the very foundation of all well-ordered jurisprudence -that every judge, whether of a higher or a lower court, in the exercise' of the jurisdiction conferred on him by law, had the right to decide according to his own free and unembarrassed convictions, uninfluenced by any apprehension of private prosecution.

“Tlie learned chief justice considered this as a sacred principle which had a deep root in the common law, and said that ‘No man can foresee the disastrous consequences of a prec. edent in favor of such suit. Whenever we subject the established courts of the land to the degradation of a private prosecution, we subdue their independence and destroy their authority. Instead of being venerable before the public, they become contemptible; and we thereby embolden the licentious to trample upon everything sacred in society, and to overturn those institutions which have hitherto been deemed the best guardians of civil liberty.’ * * ⅜ This case, after full argument, was affirmed by the Court of Errors of New York. (9 Johns. [N. Y.] 395 [6 Am. Dec. 290].)

“The principles upon which these decisions rest lie at the very foundation of all good government, — -‘the greatest good to the greatest number.’ As'has been well said in this connection by an eminent judge, ‘In the imperfection of human nature, it is better that an individual should occasionally suffer a wrong, than the course of justice should be impeded and fettered by constant and perpetual restraint and apprehension on the part of those who are to administer it.’ (Lord Ten-terden, Ch. J., in Garnett v. Ferrand, 6 B. & C., cited in Cooley on Tax., 552, note 1.)

“This privilege is not intended so much for the protection of the judge as an individual, .as for the protection of society, by preventing the scandal and embarrassment which would follow should the judicial department, which represents one of the most sensitive and vital parts of sovereignty, be subjected to the separate prosecutions of private parties. As a delegated part of this sovereignty, the actions of the judiciary represent and affect the public; and if there is in the judge presiding such a departure from that true dignity and spotless purity which should characterize the high trust and confidence reposed, he is. subject to be arraigned, punished, and rémoved from office by indictment or impeachment, at the suit of that power from which he derives his. authority. As in many other cases by the common law, the private injury is merged into the public wrong, and by our laws protection is intended to be given to society, and indirectly to the individual, by the removal from office and punishment of the of-' fender. (Const. 1869, art. 5, see. 10; 2d Sess. 14th Leg., 48.) ' .

“From the very necessity of the ease, this immunity from private liability extends not only to negligent, but willful and malicious judicial acts. .As said by Chief Justice Shaw in Pratt v. Gardner, 2 Cush. [Mass.] 69 [48 Am. Dec. 652]: ‘If an action mi^ht be brought against the judge by a party feeling himself aggrieved, the judge would be compelled to put in issue facts in which he has no interest and the ease must be tried before some other judge, who in his turn might be held amenable to the losing party, and so on indefinitely. If it be said that it may be conceded that the action will not lie unless in a case where a judge has acted partially or corruptly, the answer is, that the losing party may always aver that the judge has acted partially or corruptly, and may offer testimony of bystanders or others to prove it; and these proofs áre addressed to the court and jury, before whom the judge is called to defend himself, and the result is made to depend not .upon his own original conviction, (the conclusion of his own mind in the decision of the original case,) as by the theory of jurisprudence it ought to do, but upon the conclusion of other minds, under the influence of other and different circumstances.’

“To the same effect is Weaver v. Devendorf, 3 Denio [N. Y.] 117, in which it is said, by Beardsley, J.: ‘But I prefer to place the decision on the broad ground that no public officer is responsible in a civil suit for a judicial determination, however erroneous it may be, and however malicious the motive which prompted it. Such acts, when corrupt, may be punished criminally, but the law will not allow malice and corruption to be charged in a civil suit against such an officer for what he does in the performance of a judicial duty. The rule extends to judges from the highest to the lowest; to jurors, and to all public officers, whatever name they may bear, in the exercise of judicial power.’ '

“That able jurist, Judge Cooley, in a valuable contribution on this subject in 3 Southern Law Review, (N. S.) 547, says: ‘But our own view is, that the doctrine that a public officer, acting within the limits of his jurisdiction in the discharge of a discretionary duty, can be held liable upon an assumption that he has acted willfully or maliciously, is an exceedingly unsatisfactory and dangerous one; and that those decisions are safest and most consonant to public policy which deny it altogether. Motives are not alwaysi readily justified to the public, even in cases where, they have been purest; and the safe rule for the public is that which protects its officers in acting fearlessly, so long- as they keep within the limits of their legal discretion,’ — citing in note 26 Sage v. Laurain, 19 Mich. 137; Cooley on Tax., 552. To the same effect are Shear. & Red. on Neg., 157; Wilson v. Mayor, etc., 1 Denio [N. Y.] 597 [43 Am. Dec. 719].”

Upon the cause of action pleaded by appellant and the proof offered by him in support of his allegations, the rule announced by our Supreme Court in Pye v. Cardwell, 110 Tex. 572, 222 S. W. T53, clearly exonerates all the appellees from liability, It was there said by Judge. Greenwood, speaking for the Supreme Court:’ “The rule is firmly established in Texas which denies an award of damages for the prosecution of civil suits, with malice and without probable cause, unless the party sued suffers some interference, by reason of the suits, with his person or property. Smith v. Adams, 27 Tex. 30; Salado College v. Davis, 47 Tex. 134; Johnson v. King, 64 Tex. 226.”

Though there was no interference with his person, appellant says Pye v. Cardwell, just cited, does not rule his case because he was deprived of the right to recover the emoluments of his office during the period of suspension and that this loss was an interference with his property rights. That he did not sue for lost emoluments of office is a sufficient answer to this contention. As already stated, there was no count in his petition, nor was there any proof, that he lost one cent of the emoluments of his office as the result of, his temporary suspension. This fact brings the case exactly within the rule announced in Pye v. Cardwell. There is no factor in the mere institution and prosecution to judgment of an ouster suit, under the articles of the statute cited above, to distinguish it from the ordinary civil suit, as defined by the jurisprudence of. this state. (But we are not suggesting that, had appellant lost the emoluments of his office during his suspension, appellees would have been liable to him' for any element of the damages sued for-herein.)

In instituting their ouster suit under the removal statute, relators were pursuing a lawful remedy in a lawful manner, and its institution and prosecution did not create a civil liability, regardless of the motives on their part that prompted its institution. In Celli & Del Papa v. Galveston Brewing Co. (Tex. Com. App.) 227 S. W. 941, 943, the court said: “If the act be lawful, an improper motive does not render it unlawful. ‘Malicious motives make a bad case worse, but they cannot make that wrong which in its own essence is lawful.’ ” And again: “To maintain an action, plaintiff'must show that defendant has committed some unlawful act which would interfere with some right of plaintiff.”

Since the overt act of filing and prosecuting the ouster suit did not create a cause of action in favor of appellant against appellees, the charge of conspiracy as made by him .against them by his pleading and proof did not constitute a cause of action. In 5 R. O. L. 1099, the rule governing this conclusion is stated as follows: “Accurately speaking, 'there is no such thing as a civil action for conspiracy. There is an action for damages caused by acts pursuant to a formed conspiracy, but none for the conspiracy alone. While the crime of conspiracy may be committed without doing any overt act in pursuance of the combination, no civil action is incurred for the conspiracy, but only for the overt act •of the conspirators.” In 9- Tex. Jur. 395, § 16, it is said: “An act which, if done by one alone, constitutes no ground of action, cannot be made the subject of a suit by alleging it to have been done by and through a conspiracy of several. The true test as to whether such action will lie, is whether or not the "act accomplished after the conspiracy has been formed, is itself actionable.” The following additional authorities fully support the texts just quoted: Delz v. Winfree, 80 Tex. 404, 16 S. W. 111, 26 Am. St. Rep. 755; Green v. Bennett (Tex. Civ. App.) 110 S. W. 108, 115; Meurer v. Hooper (Tex. Civ. App.) 271 S. W. 172, 177; Knowles v. Gary (Tex. Civ. App.) 141 S. W. 189; Grand Lodge v. Schuetze, 36 Tex. Civ. App. 539, 83 S. W. 241, 246; Kruegel v. Murphy (Tex. Civ. App.) 168 S. W. 983, 984; Wills v. Central Ice Co., 39 Tex. Civ. App. 483, 88 S. W. 265; McKee v. Hughes, 133 Tenn. 455, 181 S. W. 930, L. R. A. 1916D, 391, Ann. Cas. 1918A, 459; Harris v. Thomas (Tex. Civ. App.) 217 S. W. 1068, 1077; Pye v. Cardwell (Tex. Civ. App.) 224 S. W. 542; Id., 110 Tex. 572, 222 S. W. 153.

For the reasons stated the judgment of the lower court is in all things affirmed.


author: ALEXANDEK, J.

text:
    HILL COUNTY v. WILLIAMS.
    No. 1262.
    Court of Civil Appeals of Texas. Waco.
    Oct. 6, 1932.

      Frazier & Averitte, of Hillsboro, for appellant.
    J. E. Clarke, of Hillsboro, for appellee.
   ALEXANDEK, J.

This suit was brought by C. R. Williams against Hill county to recover certain sums claimed to be due the plaintiff as the former tax collector of Hill county. The plaintiff was tax collector of said county from December 1, 1920, to December 31,1924. Under the provisions of the Acts of 1915, 34th Leg., Regular Sess., p. 250, c. 147, it was provided that the tax collector should receive a commission of 5 per cent, on all 'delinquent taxes collected and the sum of 5 cents per line for making up the delinquent tax records or supplements thereto. The plaintiff claimed that he collected the delinquent taxes for the years 1921,1922, and 1923, and made up the supplements to the delinquent tax records for the years 1921 and 1922; and that he paid the commission due him for the collection of such delinquent taxes, together with the amount allowed him for making up the supplements to the delinquent tax records, to the county treasurer under a mistaken belief that he was not entitled to retain same. The suit was to recover such commissions and compensation as authorized by the provisions of the Acts of 1929, 41st Leg., 1st C. S., p. 234, c. 95 (Vernon’s Ann. Oiv. St. art. 7331a note). A trial before the court without a jury resulted in judgment for plaintiff for the sum of $3,964.90, b'eing the commissions claimed to be due for the collection of delinquent taxes, and the sum of $436.40 claimed to be due for preparing the supplements to the tax record. The defendant appealed.

The appellant presents the proposition that the appellee wholly failed to prove that he had complied with the provisions of the law entitling him to the fees and commissions sued for. The act authorizing the tax collector to receive such commissions for the collection of delinquent taxes required him to mail to the address of every record owner of land on which taxes were delinquent a notice showing the “various sums or amounts due against such lands or lots for each year they appear to be delinquent according to such records.” Acts 1915, 34th Leg., Regular Sess., p. 250, c. 147, § 1. The same act made the performance of such duties by the tax collector mandatory, and it has been held that the tax collector in order to recover such commissions must show at least a substantial compliance therewith. Curtin v. Harris County, 111 Tex. 568, 242 S. W. 444; White v. Navarro County (Tex. Civ. App.) 40 S.W.(2d) 868. The evidence shows without dispute, and the trial court found, that said tax collector during each of such years mailed to the record owner of each tract of land on which the taxes were delinquent for the current preceding year a' written notice showing the amount of taxes delinquent and unpaid for the preceding current year only, and did not include in such notice a statement of the taxes due and unpaid thereon for each preceding year other than the preceding current year. This was not a substantial compliance with the provisions of this law. The law requires that such notice show the amount of taxes 'due for “each year.” As said by the Supreme Court in Curtin v. Harris County, 111 Tex. 568, 242 S. W. 444, at page 447: “The notice that he sent out failed to comply with the requirements in some important particulars, especially in that it did not give the ‘various sums or amounts due against such lands or lots for each year.’ ”

Moreover, the evidence shows without dispute that if the taxes had been paid on a particular tract of land for the preceding current year, no notice was sent to the record owner thereof even though the taxes were delinquent thereon for other preceding years. The law requires that such notice be sent to every record owner of any land on which any taxes are due. The sending of such notice to the then owner is- a necessary prerequisite to a foreclosure of the lien. Hunt v. State, 110 Tex. 204, 217 S. W. 1034; Barber v. State (Tex. Civ. App.) 212 S. W. 292. The collector seeks to excuse his failure to comply literally with the law by showing that on each previous year either he or his predecessor in office had sent to the then record owner of each of such tracts of land a notice showing the amount of taxes delinquent and unpaid thereon, and his contention is that if the owner of such land had retained such notices he would at all times have had in his possession notices showing the total amount of taxes due thereon. It is apparent, however, that under the policy pursued by the collector, if one had recently become the record owner of land on which the taxes were delinquent for some preceding year other than the preceding current year, he would not have received notice of such delinquent taxes. To illustrate, if the land had been delinquent for the years 1916 to 1919 and the ownership thereof had changed during the year 1921 and the new owner had paid the taxes thereon for that year, he would not have received any notice that the taxes were delinquent for preceding years; or if such new owner had failed to pay the taxes for the year 1921 he would have received notice that such taxes for the year 1921 were delinquent, showing the amount thereof, but would not have been notified that the taxes for the years 1916 to 1919 were unpaid.

The appellee also failed to perform his duty in another important particular. The same act requires the collector to deliver to the county or district attorney a duplicate of the notices sent to each record owner. The object in requiring duplicates of such notices to be delivered to the county attorney was to enable him to file suit for the taxes, and the law contemplated that such duplicates should contain reliable data sufficient to enable such attorney to draw his petition and upon which to base a recovery in court for the delinquent taxes. Curtin v. Harris County, 111 Tex. 568, 242 S. W. 444-447. The duplicates furnished by the appellee not only failed to show all the delinquent taxes due for each year as above indicated, but they showed the total amount of taxes due and unpaid for the preceding year by such record owner on all land owned by him in the county in bull!; and did not show separately the amount of taxes delinquent on-each separate tract. It is apparent that if such attorney had relied on the duplicates of such notices in filing tax suits, he would have filed suit for the taxes delinquent for the preceding year only, as shown by the duplicates furnished him, and would not have included the taxes delinquent for othoi' preceding years, not shown by the duplicates, as the law contemplates. . If such attorney had foreclosed a lien for the taxes for the preceding year only and had not included the delinquent taxes for other years and had'sold the proper-' ty in satisfaction of such judgment, the state’s right to collect the taxes delinquent for other preceding years might have been cut off. State v. Liles (Tex. Civ. App.) 212 S. W. 517. Moreover, it was necessary that the county attorney be advised by such duplicate notices of the amount of taxes due on each tract of land separate from the taxes delinquent on other tracts belonging to the same party in order to enable him to properly foreclose the lien; for if two or more tracts belonging to the same owner had been rendered separately, the lien could not have been foreclosed In solido against all of the tracts for the total taxes due by such owner. Slater v. Ellis County Levee Improvement District (Tex. Civ. App.) 42 S.W.(2d) 867.

Since the tax collector did not substantially comply with the provisions of the statute with reference to sending notices to the record owner nor in furnishing information to the county attorney, he was not entitled to recover the 5 per cent, commission on the delinquent taxes so collected by him.

The trial court found that the appellee substantially complied with the law in making up the supplement to the delinquent tax records for the years 1921 and 1922. The court further found that the appellee had paid the amount collected by him for such services into the county treasury under a mistaken belief that he was not entitled to retain same, and the court allowed a recovery therefor in the sum of $436.40. The appellant contends that the compensation allowed tax collectors for making up delinquent records and for sending out the delinquent notices and collecting the delinquent taxes are interdependent, and since the appellee did not comply with the law in sending out the delinquent notices, he is not entitled to collect for his services in preparing the supplement to the delinquent tax rolls. In each of the cases of Curtin v. Harris County, 111 Tex. 568, 242 S. W. 444, and Limestone County v. Robbins (Tex. Com. App.) 38 S.W.(2d) 580, the court found that the collector had not substantially complied with the law with reference to sending out delinquent tax notices and denied a recovery for the 5 per cent, commission for the collection of the delinquent taxes, but allowed a recovery of 5 cents per line for preparing the supplement to the delinquent tax records. Relying on the above authorities, we overrule the appellant’s contention.

The appellant next contends that since the act of 1929 authorizing the filing of such suits was repealed by chapter 3, General Laws, 41st Leg., 4th 0/ S., the appellee’s cause of action is now barred by limitation. This contention was overruled in the case of Limestone County v. Robbins (Tex. Com. App.) 38 S.W.(2d) 580, par. 9. The trial court did not err in allowing the appellee to recover for his services in preparing the supplement to the delinquent tax records.

The judgment of the trial court allowing the appellee a recovery of $3,964.90, as commission on delinquent taxes' collected, is reversed, and judgment here rendered denying him a recovery for such commission. The judgment in all other respects is affirmed.


author: JACKSON, J.

text:
    SIMMS OIL CO. v. RUTLEDGE et ux.
    No. 3867.
    Court of Civil Appeals of Texas. Amarillo.
    Sept. 28, 1932.
    Rehearing Denied Nov. 2, 1932.
    Thompson, Knight, Baker & Harris and Sol Goodel, all of Dallas, and O. C. Broughton, of Childress, for appellant.
    Williams & Bell, of Childress, for appel-lees.
   JACKSON, J.

The plaintiff, Simms Oil Company, a corporation, instituted this suit in the district court of Childress county, Tex., against the defendant, T. E. Rutledge, to recover possession of a tract of land 50x40 feet, a part of lots Nos. 23 and 24 in block No. 6 of the town of Childress, and to cancel a contract by the terms of which the plaintiff had subleased said tract to the defendant for the purposes of operating a filling station and selling and distributing Simms Oil Company gasoline, greases, and oils, for a term of six. years and one month from March 14, 1929.

The plaintiff alleges the terms of the contract and its provision authorizing it to terminate the lease and the breach of said provision by the defendant.

■ The defendant answered that the premises involved were a part of lots 23 and 24 of the town of Childress, which were and are the business homestead of himself and wife, Ver-dia Rutledge; that on December 13, 1924, and at all times since, there was located on said lots a building approximately 75 by 115 feet, which was used, occupied, and enjoyed by the defendant and his wife as their business homestead, and on said date, by written contract, he temporarily leased said 50x40 feet of land for the purpose of operating a filling station to M. G. Brock, for a period of ten years; that the said Brock defaulted, and on the 12th day of March, 1929, the defendant assigned to the plaintiff the remaining period of the Brock lease; that the plaintiff reassigned or sublet the property to the defendant with the privilege of subletting; that contemporaneously with and as a part of said transaction, the defendant agreed to sell from the premises and said filling station only the plaintiff’s gasoline, oils, and greases, and the plaintiff orally, agreed that it would furnish to the defendant and his assigns its products at wholesale prices; that the lease to Brock and the assignment thereof to plaintiff were an attempt to convey an interest in land and were made without the consent of his wife and without her signature or acknowledgment thereto, and were therefore void and unenforceable.

The defendant also pleaded that the plaintiff had breached its ■ agreement, failed and refused to furnish him or his assigns gasoline, oil, and greases at wholesale prices, and by such breach rendered it impossible for him and those to whom he subleased to operate and conduct the filling station on said premises; that such breach was made with the fraudulent purpose of forcing him and his sublessees to close the station so plaintiff could obtain possession thereof without remuneration to the defendant; and if defendant was in default, it was due to the breach of the contract by plaintiff.

Mrs. Yerdia Rutledge’ intervened and alleged that on the 13th of December, 1924, and at all times since, she and her husband were the owners of the premises in question and were actually using, occupying, enjoying, and claiming said premises as their business homestead, that the lease of M. G. Brock and the subsequent reassignment of the unexpired portion thereof to plaintiff were made by her husband without her consent or knowledge, and that she had not signed or executed either of said instruments and had not received or retained the benefits thereof, and that said lease contract and assignment were void. She also adopted the pleading of her husband and prayed that the contracts be declared null and void.

The plaintiff, by supplemental petition, urged a general demurrer and numerous exceptions to the pleadings of the defendant and of the intervener, specially denied that the property constituted any part of the business homestead of said parties or had been dedicated as such business homestead, asserted the validity of the contract, and pleaded that on the 11th of March, 1929, M. G. Brock transferred and assigned the unexpired term of his lease to the defendant in consideration of the defendant’s assumption of and promise to pay plaintiff the sum of $3,714.36, which amount Brock was then indebted to the plaintiff; that on March 15, 1929, the defendant assigned the unexpired portion of the said Brock lease to plaintiff in consideration of the cancellation of the Brock indebtedness, and on the same day the plaintiff, as lessor, sublet the unexpired term of said lease to the defendant, and, if said lease for any reason is void, the consideration for the cancellation of plaintiff’s debt failed, and it should have judgment therefor.

The plaintiff filed a trial amendment alleging that, if the premises were the business homestead of the defendant and interve-ner, the defendant had abandoned the premises prior to the execution of the Brock lease arid 'the assignment to it; that defendant and intervener owned a residence homestead in the' city of Childress, and it, together with the property claimed as a business homestead, exceeded the value of $5,000.

The case was tried before the court without the intervention of a jury, and judgment rendered that the plaintiff- take nothing against the defendant or the intervener and that the purported transfer of the lease agreement from the defendant to plaintiff and from plaintiff to the defendant be canceled and that the defendant and intervener recover their costs, from which judgment the plaintiff prosecutes an appeal.

By numerous assignments, all of which may be considered together, the appellant assails'as error the action of the trial court in holding that the assignment of the unexpired term of the Brock lease to the plaintiff was void, because the defendant had abandoned the filling, station as a homestead by dedicating it to lease purposes and the joinder of his wife in such lease or assignment was unnecessary.

The court in his judgment includes his findings of fact, which are, in substance: That in the year 1921 T. E. Rutledge was a married man and Yerdia Rutledge was his wife; that during that year the defendant purchased lots 22, 23, and 24 in block 6 in the town of Childress and established thereon his place of business, consisting of an auto garage, a welding shop, and a gasoline filling station; that he continuously used said property as his business homestead, operating thereon the filling station, auto garage, and welding shop; that on December. 13, 1924, T. E. Rutledge executed a written lease to M. G. Brock, covering the land in controversy, the west end of lots 23 and 24, for a period of ten years,' beginning on the 14th day of April, 1925; that, at the time the lease was executed, T. E. Rutledge was to build a one-story brick building on the three lots, and the filling station leased to Brock was to occupy the 50x40 feet of said building; that the building, which was 75x115 feet in size, was erected on said lots in 1923, and T. E. Rutledge continued to occupy a part thereof for the purpose of a garage and welding shop; that he leased a portion of said building on the east end of the lots to a Coca-Cola bottling works; that, at all times from 1921 until the date of the lease to M. G. Brock, the property covered by said lease was used by the defendant Rutledge as his business homestead; that after the completion of the building M. G. Brock went into possession of said 50x40 feet and operated on said premises a filling station until the 11th of.March, 1929, on which date he assigned said lease to T. E. Rutledge, who was the owner of the premises, and who took possession of the 50x40 feet of land and the improvements thereon and continued to operate the same in his own name as a filling station; that in said assignment Brock sold, transferred, conveyed, and delivered to T. E. Rutledge the stock of merchandise, together with the furniture and fixtures in connection therewith and located in the filling station; that, in consideration for such sale and conveyance, transfer, and assignment, T. E. Rutledge assumed the payment of $3,714.36 due the Simms Oil Company by the said Brock; that on March 15, 1929, while T. E. Rutledge was in possession of and using the said 50x40 feet of land with the improvements thereon, he assigned to the Simms Oil Company the unexpired term covered by the lease contract between himself and the said Brock, in consideration, of which the Simms Oil Company agreed to cancel the indebtedness due it by the said Brock and assumed by T. E. Rutledge; that the Simms Oil Company appointed T. E. Rutledge as sales agent for its products and contracted to sell them to him at wholesale prices, the prices charged hy the oil company to its other customers in Childress, and subleased the unexpired term of the Brock lease to T.~ E. Rutledge for the purpose of selling and distributing Simms gasoline, greases, and oils for a consideration of $1 per year and the additional consideration of the agreement of Rutledge to sell and distribute Simms gasoline, greases, and oils, and none other, on said premises; that said sublease provided that, if Rutledge should default in his agreement, the Simms Oil Company had the right to declare the contract forfeited; that at all times from the assignment from Brock to Rutledge, up to and including the time of the sublease by Simms Oil Company to Rutledge, the premises involved were in the actual possession of Rutledge, who was using and enjoying the same as his business homestead; that Verdia Rutledge had no knowledge of the execution of the lease contract between T. E. Rutledge and Brock and no knowledge of the transfer of said lease to the Simms Oil Company, and all of said transactions were without bier consent or agreement, and none of the contracts were signed or acknowledged by her; that, in compliance with its agreement, the Simms Oil Company for some time, and during the year 1929, did furnish T. E: Rutledge and his sub-lessees oil, gas, and other products in accordance with the agreement, but thereafter refused to sell to Rutledge or his sublessees its products at the same price it sold and delivered to its other dealers; that, in addition to the $1 consideration recited in the sublease, the Simms Oil Company charged Rutledge 1 cent per gallon more for gasoline than it charged its other customers in Chil-dress; that this charge was claimed as additional rental for the premises, and that such charge was in violation of its agreement ; that T. E. Rutledge had complied with his contract until after the Simms Oil Company began charging the extra 1 cent per gallon as rental, but he thereafter refused to receive the products of the Simms Oil Company at the price and on the terms it demanded; that on March 3, 1931, the authorized agent of the Simms Oil Company furnished T. E. Rutledge an authorized dealer’s agreement on blanks furnished by the Simms Oil Company containing a stipulation which complied with the original agreement as to the price; the agreement was accepted by Rutledge, but the oil company declined to accept such contract, and submitted to him another, which would have materially changed the agreement, and he refused to sign it; that, on account of the additional charge made for its products to T. E. Rutledge and his assigns, the Simms Oil Company breached its contract, and neither Rut-lodge nor his assigns could operate said filling station in' accordance with the agreement, because they could.not meet the competition of the other filling stations in Chil-dress purchasing products from the Simms Oil Company.

In response to interrogatories propounded by appellant, T. E. Rutledge testified that he never intended to abandon the property in controversy as a business homestead. The record is conclusive that T. E. Rutledge had used and occupied lots 23 and 24 as a business homestead since 1921, using and occupying said lots for operating a welding shop and automobile garage continuously; that in connection with and as a part of his business he operated a filling station on the property in. controversy from 1921, except for such periods of time as the filling station had been leased to others; and that on each occasion when the tenant ceased.to operate the filling station T. E. Rutledge immediately resumed the operation of the filling station in connection with and as a part of his other business. Lybrand v. Fuller, 30 Tex. Civ. App. 116, 69 S. W. 1005, writ refused.

Whether property claimed as a homestead is exempt from a deed of trust must be determined by the conditions existing at the time the trust deed is given. Bogart et ux. v. Cowboy State Bank & Trust Co. et al. (Tex. Civ. App.) 182 S. W. 678, 679, and authorities cited; Wilson et ux. v. Levy et al. (Tex. Civ. App.) 13 S.W.(2d) 971.

Whether a sale of property claimed as a homestead under execution, for debts other than those permitted by tlie Constitution, is valid, depends on the facts as to abandonment at the time of the levy of the execution. Young v. Garrett, 83 Tex. 497, 18 S. W. 819.

While the husband acting in good faith may abandon the homestead and after such abandonment convey it without the joinder of his wife, the validity of such conveyance depends on the facts existing as to abandonment at the time of such conveyance. Inge & Boring v. Cain, 65 Tex. 75; Hudgins v. Thompson, 109 Tex. 433, 211 S. W. 586.

The husband has no power by lease or other form of conveyance to divest the wife of her homestead right and interest without her consent evidenced as the law prescribes. Dykes v. O’Connor et al., 83 Tex. 160, 18 S. W. 490.

Whether the owner of a homestead which he is occupying intended to abandon it is a question of fact for the court or jury, and the burden is upon the opposing party to show such abandonment. Hibbs v. City Nat. Bank of Wichita Falls (Tex. Civ. App.) 293 S. W. 350; Thomas et al. v. Tyler et al. (Tex. Com. App.) 6 S.W.(2d) 350; Newton v. Calhoun et ux., 68 Tex. 451, 4 S. W. 645.

A valid lease of real estate for 'a' period of longer than one year is a conveyance of an estate or interest in land. Dority et al. v. Dority, 96 Tex. 215, 71 S. W. 950, 60 L. R. A. 941; Priddy v. Green et al. (Tex. Civ. App.) 220 S. W. 243; Canon v. Scott et al. (Tex. Civ. App.) 230 S. W. 1042.

The lease.by the husband of an unaban-doned homestead for a period of longer than one year is void, unless the wife joins in such lease in the manner provided by law. Haile et al. v. Haile (Tex. Civ. App.) 93 S. W. 435; Southern Oil Co. v. Colquitt et al., 28 Tex. Civ. App. 292, 69 S. W. 169; Gutierrez v. Cuellar et al. (Tex. Civ. App.) 236 S. W. 497; Haynie et al. v. Stovall et al. (Tex. Civ. App.) 212 S. W. 792, 793.

The wife cannot be deprived of her homestead rights by the acceptance by her husband of a lease from a party who has no title to the land. Dykes v. O’Connor, supra; Dotson v. Barnett et ux., 16 Tex. Civ. App. 258, 41 S. W. 99; Lumpkin v. Woods et al. (Tex. Civ. App.) 135 S. W. 1139.

The purported lease from T. E. Rutledge to Brock and the attempted assignment of the remainder of the term covered by such lease without the joinder of the wife were void; the court having found on sufficient testimony that at the time of each of said transactions the premises in controversy were claimed, used, and occupied by the defendant and intervener as their business homestead and that there had been no abandonment thereof by the defendant.

' The appellant presents as error the action of the trial court in failing to render judgment in its favor against T. E. Rutledge for the sum of $3,714.36, which amount he had assumed and promised to pay, because if, as held by the court, it acquired no leasehold estate in the property, the consideration therefor failed.

The record discloses that M. G. Brock sold to T. E. Rutledge a stock of merchandise, automobile equipment, and supplies, furniture, and fixtures located in the filling station, and attempted to reassign to him the unexpired term of the lease; that, as a consideration for this transaction, T. E. Rutledge assumed the payment of $3,714.36 due the Simms Oil Company by the said Brock; that, in consideration of the cancellation of said indebtedness by the company, T. E. Rutledge attempted to assign the unexpired term of said lease to said company, and, in consideration of certain agreements and his promise to pay $1 per year annually in advance, the company attempted to sublease the property to T..E. Rutledge for the unexpired term of the Brock lease.

The court finds that the assumption by T. E. Rutledge of the payment of said $3,714.36 and the contract between him and the oil company for the cancellation of said indebtedness, was valid; that the failure of the oil company to furnish Rutledge and his sub-lessees its products according to the prices agreed upon was a breach of the contract which effectually prevented Rutledge from selling the products of the oil company and relieved him from the payment of the $3,-714.36. The court finds that for some time after the execution of the sublease and the contract for the handling of the company’s products both Rutledge and the company complied with the terms of the contract, hut, after the breach by the oil company, Rutledge refused to handle its products.

The record indicates that Rutledge sustained damages other than nominal by the breach of the contract by the oil company, but the amount thereof is not shown. It appears from the testimony that both parties acted in good faith in making the assignment to the oil company, its sublease to Rutledge, and the contract for the handling of the products of the oil company. There is no provision in the sublease or the contract for the sale of the products stipulating that either party is entitled to damages for the breach of either.

The law prohibiting a party in default from rescinding a contract and recovering the money paid thereon relates to contracts that are valid.

The law seems to be settled that, if the husband, acting in good faith, attempts to sell or convey the homestead, but is unable to make good title thereto because the property is the homestead, and the wife fails or refuses to join in the conveyance, the purchaser is entitled to recover the money that has been paid on the purchase price. Pearson et al. v. Cox et al., 71 Tex. 246, 9 S. W. 124, 10 Am. St. Rep. 740; Eberling v. Deutscher Verein, 72 Tex. 339, 12 S. W. 205; McFalls et al. v. Brown et al. (Tex. Civ. App.) 37 S. W. 784; Roberts & Corley et al. v. McFadden, Weiss & Kyle, 32 Tex. Civ. App. 47, 74 S. W. 105; Yzaguirre et al. v. Garcia (Tex. Civ. App.) 172 S. W. 139; Saulsbury v. Anderson et al. (Tex. Civ. App.) 39 S.W.(2d) 142, and authorities cited.

The appellant’s assignments attacking the sufficiency of the testimony to support the findings of the trial court and urging as error the action of the court in overruling its general demurrer and so-called special exceptions, and presenting as error the action of the trial court in admitting certain testimony, are all overruled.

In our opinion, the testimony warrants the finding of the court, and the objections urged to the pleading, if meritorious, were cured by the facts alleged in the appellant’s pleading, and the testimony complained of was in the main a repetition of the' testimony brought out by appellant, to which no objection was urged.

Under the record we do not feel authorized to reverse and render the judgment for the amount of the debt due appellant by Brock and assumed by T. E. Rutledge, because the record indicates that there are certain equities that should be adjusted.

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