author: GALLAGHER, C. J.

text:
    CARLISLE v. CITY OF WACO.
    No. 1309.
    Court of Civil Appeals of Texas. Waco.
    Dec. 29, 1932.
    F. R. Yalenetine and J. A. Kibler, both of Waco, for appellant.
    John M.cGlasson, of Waco, and George Morrow, of Dallas, for appellee.
   GALLAGHER, C. J.

This suit was instituted by appellant, Mrs. Lena Carlisle, against appellee, the city of Waco, to recover damages for injuries resulting from a fall on a sidewalk in said city. The case was tried to a jury, a verdict instructed for appellee, and judgment in its favor that appellant take nothing.

Opinion.

Appellant challenges the action of the court in instructing a verdict against her by a group of assignments. She contends thereunder that the testimony raised an issue of negligence on the part of appellee with reference to the material and workmanship used in constructing said sidewalk and in permitting it to become and remain in a cracked, broken, weakened, defective, and dangerous condition. Said sidewalk lay between the west line of South Eighth street and an open space at and along the Missouri-Kansas & Texas passenger and freight depots. Said space was used both as a thoroughfare and for parking purposes. There was a driveway from Eighth street and on a level therewith to said open space. The street curb turned at the north line of said driveway and ran therewith westward to the property line. Pedestrians in passing south over said sidewalk stepped from said curb down to the surface of the driveway, a distance of six or eight inches. Appellant and her daughter, Miss Ella Carlisle, on the afternoon of the accident, were traveling southward over said sidewalk from the business part of the city to their home. Miss Ella was on the street side and appellant on the inside of the sidewalk at the time of the accident. Miss Ella testified, in substance, that her mother, in stepping from the cross curb into said driveway, put her right foot on said curb and lifted her left foot, and that at that instant the cement gave way under the right foot, and she fell prone on the surface of the driveway and was seriously injured. The witness described the piece of cement that broke or gave way as about one inch thick and wide . enough to fit under the ball of the foot. She further testified that before her mother stepped on the place where the curb gave way “it looked all right” ; that there were cracks in the sidewalk all around there, and that a crack ran up to the piece that gave way, but ■that nobody would see or notice such crack; that the sidewalk around there was pretty' badly cracked up but not bad enough to indicate it would break if she stepped on it; that she had passed over the same twice a day for two years and noticed the cracks every time she did so. She also testified that she examined the place where the curb gave way under her mother’s foot, and that it was a fresh break. Appellant testified that she had not theretofore in passing over said sidewalk noticed any cracks or breaks therein. She also testified that at the time of the accident she stepped on the edge of the curb, that it broke or gave way, and that it had not been broken at that place before. The sidewalk was about ten feet wide. Both sidewalk and curb were constructed of concrete with a finishing layer of cement. The testimony does not disclose when or by whom the same were constructed, but does show that they were built several years before the accident.

Appellant introduced in evidence three kodak pictures of the scene. They were taken the next morning after the accident. Said pictures show a small break or nick in the outer edge of the curb about as described by appellant and her daughter. Said point was apparently about two feet west of the middle of the sidewalk. The walk was divided into squares, the lines of which a witness called expansion joints. There was also such a line or joint between the sidewalk and the curb and the same extended westward beyond the break where appellant fell. There was a crack running from said joint between the curb and sidewalk and curving slightly toward the north and extending to the west line of the walk. There were other cracks joining the same, but all such other cracks were located two feet or more from the break where appellant fell. There is some difficulty in determining whether said main crack continued along the expansion joint to a point opposite said break or not. We do not think such determination necessary. The pictures clearly show an unbroken line of surface cement about an inch and. one-half wide between the break or nick in the outer edge of the curb and 'said inside line, whether such line be both crack and expansion joint or not.

Several cement and concrete contractors of extensive experience in such work examined the sidewalk and curb at the scene of the accident. Such examination was made at the time of the trial, which was about eight months thereafter. There was, however, no contention that the situation had been materially changed. All said witnesses testified that the material and workmanship employed in constructing said sidewalk and curb were of high grade. They further’ testified that the breaks or cracks in concrete work did not indicate either bad material or workmanship ; that the character of concrete was revealed by cracks; that, if such cracks or breaks were straight, breaking the gravel as well as the mass, it was good concrete; that, if the mass crumbled and separated from the gravel, it was bad concrete. They further testified that they examined the little nick in the edge of the curb where appellant fell, and that it was a straight break severing the gravel as well as the mass, and that the concrete at that place was of high grade. One witness testified that the crack hereto7 fore referred to running to the expansion joint between the curb and the walk did not reach the break in the curb where appellant fell. All of them attributed that break to the impact of an iron-wheeled vehicle upon it in passing through said driveway. They further testified that they tested said curb at that place and found it firm and strong.

Considering the testimony as a whole, it is shown affirmatively that there was no connection between the cracks in the sidewalk which existed at the time of the accident and had existed long prior thereto and the little nick in the outer angle of the curb where appellant fell. Appellant’s contention that the testimony raised the issue of negligence on the part of appellee proximately causing her fall and injuries by permitting said sidewalk to become and remain in the cracked condition testified to by the witnesses cannot be sustained.

The only other contention presented by appellant is that the testimony raised an issue of negligence on the part of appellee proximately causing her fall and injuries, in that the material and workmanship used and employed in the construction of said sidewalk and curb were defective and that appellee was legally charged with notice of such defects. Whether said sidewalk and curb were constructed by the city or by the railway company was not shown. The testimony did show, however, that they were both constructed years before the accident and must necessarily have been subjected to the strain of sustaining the weight of many pedestrians traveling over the same during all such years. Appellee showed by disinterested witnesses that both material and workmanship used therein were of high grade, not only as to the work as a whole, but with respect to the very place in the curb from which the chip which gave way under appellant’s foot was broken. This was further shown by the fact that after eight months’ additional service the curb all around said break was still intact and stood appropriate tests applied by said witnesses.

The testimony introduced by appellant does not in our opinion raise an issue of defective material and workmanship in the construction of said curb of such a nature as to cause appellant’s fall and to render appellee liable for. the injuries sustained thereby. Appellant testified the curb gave way under the weight of her body resting on her right foot and that she did not see any defect or break therein at the time she stepped on it. Her daughter merely testified that the curb gave way under her mother’s weight; “that it looked all right” to her when her mother stepped on it. According to the testimony heretofore recited, the curb was not defective, and the breaking off of said chip was attributed to contact with some iron-wheeled vehicle passing over said driveway. Such an accident might have loosened said chip from the curb and still have left it in place to give way under appellant’s foot. The mere fact that neither appellant nor her daughter observed the same is not necessarily inconsistent with the existence of said condition. There being no testimony as to when said injury to the curb was inflicted, appellee could not be charged with notice thereof by lapse of time. Streets are built and maintained for the use of the traveling public and are in constant use by them and may immediately become defective and dangerous from such constant use, though they were properly constructed and were theretofore in every respect suitable for travel. 13 R. C. L., p. 443; Klein v. City of Dallas, 71 Tex. 280, 285, 8 S. W. 90; Hanks v. City of Port Arthur (Tex. Sup.) 48 S.W.(2d) 944, 948, par. 8; City of Waco v. Ballard (Tex. Civ. App.) 277 S. W. 441, par. 2.

However, if we accept appellant’s theory that the curb was intact at the time she stepped on it and that said chip was not then loosened therefrom, and that it did actually break under her weight and that such facts raise a permissible inference of defective material or workmanship, we think the testimony showed conclusively that such defect was a latent one and that there is no testimony sufficient to raise an issue of negligence on the part of appellee in not discovering the same. 43 C. J. p. 1051, § 1826; 13 R. O. E. p. 342, § 281.

The rule announced by our Supreme Court in Joske v. Irvine, 91 Tex. 574, 582, 583, 44 S. W. 1059, 1063, is peculiarly applicable in this case. We quote from the opinion of the court in that case as follows:

“From a careful examination of the cases, it appears, (1) that it is the duty of the court to instruct ia verdict, though there be slight testimony, if its probative force be so weak that it only raises a mere surmise or suspicion of the existence of the fact sought to be established, such testimony, in legal contemplation, falling short of being ‘any evidence’; and (2) that it is the duty of the court to determine whether the testimony has more than that degree of probative force.
“If it so determines, the law presumes that the jury could not ‘reasonably infer the existence of the alleged fact,’ and ‘that there is no room for ordinary minds to differ as to the conclusion to be drawn from it.’ The broad and wise policy of the law,, formed in and descending to us through the crucibles of time, does not permit the citizen to be deprived of his property, his liberty, or his life upon mere surmise or suspicion, and places upon a trained judiciary the grave responsibility of determining as a question of law whether the testimony establishes more.”

See, also, Garrett v. Hunt (Tex. Com. App.) 283 S. W. 489, 490 (top second column) et seq.; Waco Drug Co. v. Hensley (Tex. Com. App.) 34 S.W.(2d) 832, 835, par. 1.

The action of the trial court in instructing a verdict, when tested by the rule so announced, was proper, and its judgment is affirmed.


source: Caselaw Access Project

author: FUNDERBURK, J.

license: Public Domain

text:
    TEXAS & P. RY. CO. v. PHILLIPS et ux.
    No. 1029.
    Court of Civil Appeals of Texas. Eastland.
    Dec. 16, 1932.
    Rehearing Denied Jan. 13, 1933.
    H. C. Shropshire, of Weatherford, for plaintiff in error.
    Grisham, Patterson ‘ & Grisham, of East-land, for defendants in error.
   FUNDERBURK, J.

Suit by Eugene Phillips and wife against the Texas & Pacific Railway Company to recover damages for the death of plaintiffs’ minor son, Gordon Phillips. The boy was killed by a train from the West at a public crossing on Seaman street in the city of East-land immediately east of defendant’s depot. The acts of negligence relied upon for recovery in so far as found by the jury favorably to the plaintiffs were: (a) That defendant, in the operation of the train, approached the crossing on the occasion in question at an excessive rate of speed; (b) that defendant failed to sound an engine whistle or whistles at least 80 rods west of Seaman street crossing on the occasion of the collision; and (c) that the operatives of the train failed to ring the engine bell from a point at least 80 rods west-of said crossing continuously until said, engine passed the crossing. The negligence in each of these respects was also found by the jury to he a proximate cause of the hoy’s death, resulting in damages found to be $5,-000.

Facts alleged to constitute contributory negligence were:

First, (a) That deceased approached the crossing at a high and dangerous rate of speed, and (b) failed to reduce the speed of' his car to not exceeding six (6) miles per hour at some point not nearer than thirty feet of the track.

Second. That deceased was driving in ex- ■ cess of twenty miles an hour.

Third. That deceased approached the crossing at a high and dangerous rate of speed without stopping, looking, or listening.

Of the issues relating to negligence of the deceased which were submitted to the jury, it was found, in answer to one, that the said Gordon Phillips did not, at some point not nearer than thirty feet of the track, slow down to not exceeding six miles per hour, but further found that his failure to do so' was not the proximate cause of his death. In answer to the three other issues on contributory negligence the jury found: (a) That Gordon Phillips was not guilty of con- ■ tributory negligence “in going upon said crossing and railway track at the time and place of the accident in the way and manner that he did go upon said .track and crossing’’; (b) that Gordon Phillips had not “failed to look and listen for the approach of said train before driving his automobile upon said crossing”; and (c) that Gordon Phillips had not “approached said crossing at a rate of speed in excess of 20 miles per hour.” The jury further found that the death of Gordon Phillips was not the result of an unavoidable accident. The judgment for plaintiffs, in accordance with the verdict, bears date ■ the . 7th day of July, 1931. Defendant’s motion for new trial was overruled on the 30th day of July, 1931, and notice of appeal then given. On the 19th day of August, 1931, appeal (and supersedeas) bond was filed, thereby perfecting the appeal. On November 30, 1931, the appellees filed a motion in this court to strike out the transcript and statement of facts and dismiss the appeal on the ground that same had not been filed within the time required by law. The transcript and statement of facts had been filed in this court on November 17,1931. As under our construction of It. S. 1925, art. 1839, as amended by the Acts 42d Leg. General LaWs (1931) c. 60, p. 100 (Vernon’s Ann. Civ. St. art. 1839), the record had been filed without lawful authority, because of the lapse of the required time, we granted appellees’ motion in full and not only struck out the filing of the record but dismissed the appeal. It was recognized at the time that the facts did not require the dismissal of the appeal, especially as the appellees at the same time of filing the motion had also filed a motion to affirm on certificate. But, it was our view that appellees having moved for a dismissal of the appeal and the appellant’s attorney having signified his assent to such action, we were justified in dismissing the appeal, and under the circumstances, did so. We then dismissed the motion to affirm on certificate, on the ground that, by our action on the motion to dismiss, we had deprived the court of jurisdiction to affirm on certificate. (Tex. Civ. App.) 45 S.W.(2d) 265. The order of dismissal was acquiesced in by all parties and became final. On December 16, 1931, defendant below filed an application for writ of error. On the same day filed error (and su-persedeas) bond, and on the 22d day of January, 1932, filed the record in this court.

We will first notice the contention of defendants in error (who for convenience will be designated plaintiffs as in the trial court), to the general effect that' we erred in not granting the motion to affirm on certificate, or, at any rate, that our dismissal of the former appeal is res judicata in this writ of error proceeding. This court would have been without authority to dismiss the appeal to the prejudice of plaintiffs’ right to an af-firmance on certificate but for "the fact that plaintiffs, by moving to dismiss, thereby deprived themselves of any right to complain of such action. The jurisdiction of this court attached upon the filing of the appeal bond by express provision of It. S. 1925, art. 2267. The jurisdiction then acquired was the same jurisdiction by virtue of which this court was authorized, after the expiration of sixty days, to affirm on certificate if the record had not been filed in time. When, at ’ the instance of plaintiffs, we dismissed the appeal, we had no more jurisdiction of the case, so long as the order of dismissal remained in effect, than we had before the appeal bond was filed. If the term of the trial court had not by that time ended, there would have been no obstacle to that court’s granting a new trial or taking any other action that could have been had if no appeal had ever been attempted. Schonfield v. Turner (Tex. Sup.) 6 S. W. 628, is authority, we think, for the proposition that the abandonment of an appeal does not affect the right to bring the case up on writ of error, subject to the qualification only that thereby appellees’ right to have the case affirmed on certificate, if not waived, is not to be denied; but, if waived, the right becomes absolute. The voluntary dismissal of the appeal constitutes such waiver. The dismissal of the appeal was not an adjudication of the merits of the appeal, and is therefore not res judicata.

The defendant urges no proposition to the effect that there was no evidence, or that the evidence was insufficient to support the verdict of the jury upon the issues of defendant’s negligence. More than half of its brief is devoted to a proposition contending that the court erred in refusing to give a peremptory instruction for the defendant upon the issues of contributory negligence. The jury found, among other things, that the defendant was guilty of negligence which was the proximate cause of the death of Gordon Phillips, in that defendant, in the operation of the train, approached the crossing at an excessive rate of speed. Whether the deceased saw or heard the train in time to avoid the collision are facts which could only be determined by way of inference or deduction from other facts in evidence. In other words, the evidence does not show, as a matter of law, whether or not the deceased saw or heard the approaching train. In considering whether contributory negligence was shown as a matter of law, the facts cannot be assumed as true that he saw or heard the train. Neither can it be assumed that he did not see or or hear it. If he saw or heard the train, and the train was moving at an excessive rate of speed, he may have, in the exercise of reasonable care and prudence, thought he could cross before the train reached the crossing, and only failed because of the negligent speed of the train. Certainly in such case there could be no contributory negligence as a matter of law. If he did not see or hear the train, his failure to do one or the other, or both, may have been due to the failure of the defendant to sound the whistle and ring the bell in time. Granting that the undisputed evidence shows that there were places along which the deceased passed where he could have seen the train, there was ample evidence to show many obstructions, and it could not be said that a failure to see the train was contributory negligence as a matter of law. If the undisputed evidence showed, which it does not, that deceased approached the crossing at a greater speed than twenty miles per hour, it would still be a question of fact, we think, whether that was the proximate cause of his death. We shall not here enter into a discussion of decisions. Crossing cases are numerous, and have been reviewed by this court in Ft. W. & R. G. Ry. Co. v. Sageser (Tex. Civ. App.) 18 S.W.(2d) 246. See, also, T. & N. O. Ry. Co. v. Crow (Tex. Civ. App.) 300 S. W. 93; Id. (Tex. Sup.) 48 S.W.(2d) 1106; G. H. & S. A. Ry. Co. v. Leifeste (Tex. Civ. App.) 8 S.W.(2d) 764; La. Ry. & Nav. Co. v. Cotton (Tex. Civ. App.) 1 S.W.(2d) 393. We therefore hold, upon the facts of this record, that the question of contributory negligence was an issue of fact for the jury.

Eefendant, by its second, third, fourth, and fifth propositions, complains of the refusal of the court to give certain special instructions. One will serve as a fair example of all. Special charge No. 14 was: “Gentlemen of the Jury: If you believe from the evidence that Gordon Phillips, deceased, in approaching the place where he was injured and killed, failed to stop, look and listen for the approaching train on said track where he was injured and killed; and you further believe that, if he had stopped or looked or listened, that he could and would have discovered said approaching train in time to have avoided contact therewith and injury thereby, and you further believe that such failure, if any, to stop, or look or listen, was negligence on his part, and that such negligence on his part contributed proximately to his injuries and death, the plaintiffs are not entitled to recover damages in this case, and you will answer Special Issue No. 6 submitted to you by the court ‘Yes’ and Special Issue No. 7 submitted to you by the court ‘Yes.’ ” These were “instructions” on the “law of the case,” never proper to be given in a case submitted on special issues. Had same been given over proper objection, it would have constituted reversible error. Eor a discussion of this subject, with citation of the authorities, see our opinion in Standard v. T. P. Coal & Oil Co., 47 S.W.(2d) 443.

Propositions 6 to 23, inclusive, all complain of the refusal of the court to give issues specially requested by the defendant. We conclude that they should all be overruled. It would be too tedious and serve no good purpose to state the propositions separately and give our reasons for the view that the court did not err in refusing to give them. We may classify the reasons as follows: Some called for the finding of merely evidentiary facts, some were issues-already submitted, some had no basis in the pleadings, some embodied two or more issues in one, and some were upon the weight of the evidence.

The court gave a definition of “proximate cause” as follows: “By the term ‘proximate cause’ is meant the efficient and producing cause but for which the injury would not have happened, and which could have been reasonably foreseen as causing the injuries complained of, or some similar injury.” The objection challenged the correctness of the definition. In view of the disposition necessary to be made of the case upon another assignment, it is not deemed profitable to enter into a discussion of the question, or even determine whether upon this point alone we would reverse the case. There is no reason why, upon another trial, a definition may not be given which has been approved as.to form, and thus avoid further question. In this connection it may not be amiss to observe that, in the law of negligence the term “proximate cause” has one constant meaning. A correct definition in one case will be good in every case. An incorrect definition may, in a particular case, not be reversible error, because of being more favorable to tbe complaining party than a correct definition, or because of tbe particular facts of tbe case it could not bave prejudiced tbe complaining party, but, of course, sucb a definition should not be considered as having been approved as a correct definition. Tbe use of tbe adjectives “efficient” and “producing” in connection with the word “cause” added nothing material to said word, and it is therefore an easy matter to obviate any question about tbe necessity of defining either or both of said adjectives by omitting them.

We bave reached tbe conclusion that tbe court below committed material error in submitting special issue No. 5, as follows: “What amount of money, if any, paid now in cash, will reasonably compensate plaintiffs for tbe damage they bave sustained, if any, ■by reason of the collision in question?” The issue was objected to on the ground, among others, in substance, that it did not exclude from the consideration of the jury damages resulting, from physical and mental suffering, grief and sorrow, or the loss of society or companionship on account of said death.

The law as declared in the cases cited, G., C. & S. F. Ry. Co. v. Farmer, 102 Tex. 235, 115 S. W. 260; Hines v. Kelley (Tex. Com. App.) 252 S. W. 1033; I. & G. N. Ry. Co. v. McVey, 99 Tex. 28, 87 S. W. 328; H. & T. C. Ry. Co. v. Gant (Tex. Civ. App.) 175 S. W. 745, impels us to the conclusion that tbe issue should have been so stated as to require the jury to exclude from the amount of damages to be found anything by way of compensation for physical or mental suffering, grief or sorrow, or loss of society or companionship.

It is suggested that the issue of damages could have been submitted to meet the material objections in some such form as follows: “Including (a) the difference, if any, in the value of plaintiffs’ ear immediately before and immediately after the accident; (b) the reasonable and necessary expenses, if any, incident to the burial of Gordon Phillips; (c) the amount, if anything,' said Gordon Phillips, had he lived, would have earned from the time of his death until he became 21 years of age, less the reasonable cost of his maintenance, education and support during said time; (d) the amount of money, if any, he would have probably voluntarily contributed to his parents from the time he reached 21 years of age and during the probable remainder of their lives and his; but excluding (a) all damages, if any, resulting from physical or mental distress or grief or sorrow because of such death, and (b) all damages, if any, for the loss, if any, of the society or companionship of the said Gordon Phillips; you will please determine from a preponderance of the evidence, and by your answer hereto state, what amount of money, if any, paid now in cash, will reasonably compensate plaintiffs for the damage, if any, they have sustained by reason of the death of Gordon Phillips.”

Because of the failure of the court to properly submit the issue of damages, the judg-_ ment must be reversed, and the cause remand- ' ed, which is accordingly so ordered.

Reversed and remanded.


author: LEVY, J.

text:
    McCORMICK v. KENNEDY.
    No. 4272.
    Court of Civil Appeals of Texas. Texarkana.
    Dec. 1, 1932.

      Cunningham & Lipscomb, of Bonham, for appellant.
    Hamp P. Abney, of Sherman, for appellee.
   LEVY, J.

(after stating the case as above).

The appellant on appeal predicates error upon the judgment, in that: (1) Under the evidence the fee-simple title to the property in the town of Leonard did not beeome absolute under the contract of exchange, and (2) there was never any delivery of any deed thereto by the appellant, and (3) the remedy of specific performance under the pleadings of appellee was not allowable. Although the contract of the parties contemplated that the possession of the property would temporarily change, yet the contract by its terms required exchange of abstracts of title and the showing of a fee-simple title before the trade or-exchange of the properties became absolute. The agreement expressly states:

“It is understood and agreed -that abstracted titles shall pass by December 5th, 1930.
“The simple facts agreed upon in this instrument is that the said J. W. McCormick will accept the title to 'the Whitesboro property when it is shown that he has a good and fee simple title to same, the only encumbrance being $4850.00 to be held by the Standard Savings & Loan Association, which the said McCormick agrees to assume.
“R. J. Kennedy is to accept title to the Leonard .property when a good and fee simple title is passed to him with no other encumbrance than $850.00 to be held by Dr. J. J. Pendergrass, which the said It. J. Kennedy agrees to assume.”

There was clearly a condition precedent to the passing of the title to the respective pieces of property. The evidence goes to conclusively show that the abstract presented by the appellee did not, in the opinion of attorneys, show a good merchantable title to his property and that on January 26, 1931, the appellant exercised his privilege of rescinding the contract. The letter written appellee by appellant on January 26, 1931, reads: “You are unable to furnish me with title or with abstract showing title and I am not in a position to wait longer. I am enclosing the $10.00 cheek and am sending the other one to Mrs. Chapman, and am compelled to announce that all negotiations concerning this deal are closed. No deal has been made and I am not in a position to negotiate any further. If at any time you may be able to make title, and I am still possessed of the Leonard properties you may write me, and if agreeable at any time we will enter a new negotiation, but the present deal is hereby called oft and abandoned.”

In the situation shown, in view of the pleadings, recovery of the land would not be allowable. The suit as brought was essentially a suit in the statutory form of trespass to try title and the petition was drawn in accordance with the provisions of the statute (Rev. St. 1925, art. 7364 et seq.) in such respect. The defendant expressly pleaded “not guilty.” In such character of suit the only question is that of right of possession and title. Not showing absolute title under the contract of exchange nor under executed deed from appellant, there was not sufficiency of evidence of title in appellee to enable the court to make adjudication of the' land to be in appellee in view of the pleading.

Although the facts may not show a cause of action for title to the land under the exchange agreement, and although the evidence might probably reflect an entirely different cause of action based on the contract and the letter of January 26th for specific performance, yet relief or adjudication may not be allowed, for the petition is drawn strictly in the form of an action of trespass to try title, and not framed in the alternative form averring affirmatively a cause of action for specific performance. No right in an action of trespass to try title to secure specific performance of an agreement can be had without special affirmative pleadings. Tanner v. Imle (Tex. Civ. App.) 253 S. W. 665. The plaintiff does plead facts in the second amended original petition in reference to the written contract, but clearly such allegations could only be regarded not as asking affirmative relief but as reply, in the nature of supplemental petition, to allegations contained in the defendant’s answer: The basis of a plaintiff’s cause of action cannot be left to be found in supplemental petition. J. I. Case Threshing Machine Co. v. First Nat. Bank (Tex. Civ. App.) 160 S. W. 662; Sanger Bros. v. Barrett (Tex. Civ. App.) 221 S. W. 1087; Creosoted Wood Block Paving Co. v. McKay (Tex. Civ. App.) 234 S. W. 587; Rules District Court, 6 and 15.

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


text:
    FREE AND ACCEPTED MASONS v. JOHNSON et al.
    No. 1274.
    Court of Civil Appeals of Texas. Waco.
    Dec. 15, 1932.

      George Clark, of Waco, for appellant.
    W. C. Taylor, of Waco, for appellees.
   GALLAGHER, C. J.

The material facts in this case are uncon-troverted. Appellant, Free and Accepted Masons of the State of Texas, is a corporation, duly incorporated under the general laws of this state. It is a fraternal benefit society, operating under the provisions of chapter 8, title 7-S, of our Revised Statutes. The constitution thereof declares, in substance, that it is a charitable institution and extends its charity or relief to worthy persons and its members in accord with its own fixed laws and rules; that no person except (1) a Master Mason’s wife, (2) a Master Mason’s child or children, (3) a Master Mason’s mother, (4) a Master Mason’s unmarried sister, (5) a Master Mason’s father, (6) a married sister or brother or other person who cares for a Master Mason in his last illness, shall be recognized as the beneficiary of a dead Master Mason nor be entitled to draw relief benefits on account of his death; that when a Master Mason has no wife, his child or children become his legal beneficiaries. , Further provisions in that connection are immaterial in this case. Said constitution further declares, in substance, that the Grand Secretary is vested with authority to issue relief checks in such sums as is required by its laws, (1) to the wife of a Master Mason if she is living; (2) to the legal child or children, if living. Further provisions in such connection are immaterial. Said constitution further provides: “When a Master Mason in good financial standing dies * * * it shall be the duty of the secretary of his lodge to file in the office of the Grand Secretary a sworn statement, signed by five Master Masons, giving the date of death and setting forth when the brother joined the lodge, who his beneficiaries are under the laws of the Grand Lodge; where he died, and whether he was given a decent Masonic burial by the beneficiary and what lodge performed the Masonic ceremonies. If the beneficiary gave the dead Master Mason a decent Masonic burial, it shall be the duty of the Grand Secretary to immediately after receiving said statement * * * to draw a check payable to the order of the beneficiary for 8200.00, and send it to the secretary of his lodge, who shall turn it over to the beneficiary, who shall pay all funeral expenses. * * * The $200.00 immediate relief so paid * * * shall be deducted from the total sum of relief funds collected each year from all lodges, and which shall be prorated equally to each dead Mason on the last day’s session of the Grand Lodge in June of each and every year, and the balance, if any, paid to the beneficiary, which shall be known as the second payment of relief.”

Appellant, on May 17, 1928, and long prior thereto, had a local lodge at Waco known as Union Seal Lodge. Charlie Myart was a member thereof. He died on May 17, 1928. He was at that time in go.od standing, having paid all dues and assessments required of him. He left surviving him his wife, Mariah Myart. She gave him a decent burial and was paid the first or immediate relief benefit ■in the sum of $200. She died November 8, 1928. Appellees Emma Johnson, Mary Freeman, and Nancy Bell Hackworth, her sisters, and Wesley Erath and William Erath, her brothers, survived her. They were and are her only lawful heirs. At the time of her death the second relief provided for by the constitution of the order had not been paid nor was the amount thereof definitely known. At the close of the current Masonic year, which expired on May 15, 1929, the amount of the second relief payment was calculated and found to be the sum of $475. A check or draft therefor, payable to Mariah Myart, was sent to the secretary of the local lodge at Waco and was at the direction of the Master of said local lodge turned over to Martha My-art Butler, the daughter of the deceased Charlie Myart by a prior marriage. She indorsed the check with the name of the deceased payee therein and cashed the same. Appel-lees never received any part of said second payment. They instituted this suit to recover the same.

The case was fried to a jury. Appellant, at the close of the testimony, requested the court to peremptorily instruct a verdict in its favor, which request was refused. The court then instructed the jury peremptorily to return a verdict in favor of appellees for the sum of $475.. The jury returned a verdict in accordance with said instruction and the court entered judgment thereon that appellees recover of appellant said sum of $475, with interest thereon at the rate of 6 per cent, per annum from the 1st day of June, 1929, amounting in the aggregate to the sum of $551.

Opinion.

Appellant assails the action of the court in instructing a verdict against.it and rendering judgment thereon, by various assignments of error. It contends thereunder that upon the death of Mariah Myart, surviving wife of Charlie Myart, deceased member of the order, his daughter, Martha Myart Butler, became, under the terms of its constitution, beneficiary in her stead and entitled to the unpaid remainder of the benefit which accrued by reason of his death. Appellant’s constitution provided a benefit on the death of a member, the amount of which was to be determined by dividing the entire benefit fund collected during the Masonic year by' the number of members who died during that time. Necessarily, the exact amount to which the beneficiary or beneficiaries of a member would be entitled could not be known until the end of the year, when collections had been completed and the number of members who had died ascertained. Provision, however, was made for the payment of the sum of $200 for the purpose of defraying funeral expenses of the deceased. Before this payment could be lawfully made, the identity and status of the beneficiary of the deceased member had to be proved by the sworn statement of five members of the order. Upon receipt of such statement, the Grand Secretary was required to prepare and execute a check for said amount, make the same payable to the beneficiary, and mail it to the secretary of the local lodge, who was required to deliver the same to such beneficiary. No further proof of the identity or ■status of the beneficiary or beneficiaries was required, but when at the end of the year the actual amount of the benefit which accrued by reason of the death of the deceased member had been ascertained, the Grand Secretary was required to deduct therefrom the advance payment of $200 and pay the remainder to the beneficiary. The record in this case does not show affirmatively that a sworn statement declaring that Mariah Myart was the wife of the deceased, that she had given him a decent Masonic burial, and was therefore his beneficiary, was prepared and forwarded to the Grand Secretary. It was admitted, however, on the trial of the case that a check in the sum of $200 as the first or immediate payment of relief was issued to her and collected, and that the check for the second payment of such relief was made payable to her, but delivered by the officers of the local lodge to Martha Myart Butler, surviving daughter of the deceased by a prior marriage, indorsed by her in the name of said payee, and cashed on such indorsement. There is nothing in the provisions of appellant’s constitution as copied in the record which would authorize a beneficiary of a lower class to be substituted for a beneficiary of a higher class, proved and established as such at the date of the death of a member, because of the subsequent death of such original beneficiary before the second payment of relief was made. Appellant in this connection insists that the provisions of the constitution hereinbefore recited, which declare that relief checks shall be issued to the wife of a Master Mason if living and, if not, to his child or children, should be construed to authorize such substitution. Appellant further insists that the provisions of its constitution which declare that no person, unless .he belongs to one of the several classes of beneficiaries enumerated therein, shall be recognized as the beneficiary of a-deceased member or entitled to draw relief benefits on account of his death, authorized such substitution and affirmatively excluded appellees from a recovery herein. The rule in this state, as elsewhere, is that the benefits accruing under certificates of membership in fraternal, mutual aid, or benefit associations vest in the beneficiary entitled thereto on accrual, and pass at the death of such beneficiary to his legal representatives or heirs. Central Texas Mutual Life Ass’n v. Beaty (Tex. Civ. App.) 20 S.W.(2d) 836, 837, par. 1 (writ refused), and authorities there cited; Kottmann v. Gazett (Minnesota Odd Fellows Mutual Benefit Society), 66 Minn. 88, 68 N. W. 732 et seq. Appellant’s contention that the issue under. consideration is controlled by the provision of its constitution that relief checks shall be issued to the wife, if living, and, if not, to the child or children of the deceased, was considered by the Supreme Court of Minnesota in the case last above cited. One Gazett became a member of the order. The certificate of membership issued to him promised “to pay, within sixty days after notice and satisfactory proofs of the death of said brother, made as provided by the by-laws, to Mrs. Fride Gazett; his wife, if living, if not living then to the heirs or assigns of the aforesaid brother, a sum equal to the amount of one dollar for each full member of the society at the time of his death.” Gazett died, leaving his wife, Fride, surviving him. Six days thereafter, before any proofs of his death had been furnished to the society, she also died. Both her heirs and the heirs of her deceased husband claimed the benefit which accrued by reason of his death. We quote from the opinion in that case as follows: “The question is: Who are entitled to the money due on the certificate, the heirs of Jacob Gazett or the heirs of his widow, Fride? ■ The answer to this depends upon the language of the contract contained in the certificate; that is, whether the words ‘if living’ and ‘if not living’ refer to the date of the death- of Gazett, or to the date when the money becomes due and paya-. ble, to wit, 60 days after proofs of death are made to the society. Counsel for the defendants contend for a middle ground, to wit, that the words refer to the date when the proofs of death are made; but the language of the certificate leaves no room' for any such construction. It refers either to the date of the death of the member, or to the date when the money is payable according to the terms of the contract. We have no doubt that the words ‘if living’ and ‘if not living’ refer to tile time of the death of the member, and that the right of the beneficiary became fixed and vested at that date. * * * We hold that the widow’s right to the fund became vested at the date of the death of her husband, and that right was not divested by her subsequent death before proofs of death had been made.” Since in this case the benefits which accrued by reason of the death of Charlie’ Myart vested immediately in Mariah Myart, his surviving wife, and passed at her death to her lawful heirs, appellant’s further contention that appellees were by the terms of its constitution above recited inhibited from demanding and recovering the same, cannot be sustained. Appellees do not claim to be beneficiaries of Charlie Myart, the deceased Master Mason, nor do they attempt to recover as such. They were, upon the death of Mariah Myart, by virtue of our statutes of descent and distribution, invested with title to the unpaid installment of relief to which she was entitled while living, and they had the right in her place and stead to demand, receive, or recover the same. In addition to the authorities above cited, see Central Texas Mutual Life Ass’n v. Beaty, supra (Tex. Civ. App.) 20 S.W.(2d) 837, 838, par. 4, and statutes and authorities there cited; Estelle Undertaking Co. v. Grand Lodge Colored Knights of Pythias (Tex. Civ. App.) 53 S.W.(2d) 316, 317; National Benevolent Society v. Price (Tex. Civ. App.) 32 S.W.(2d) 683, 6S5, par. 3; Federal Surety Co. v. Pitts, 119 Tex. 330, 29 S.W.(2d) 1046; Ford v. Grand United Order of Odd Fellows (Tex. Civ. App.) 50 S.W.(2d) 856, 859 et seq., pars. 5, 6 and 7.

Appellant presents assignments of error in which it contends that appellees should not have been permitted to maintain this suit because they failed to allege and prove that there was no administration upon the estate of Mariah Myart, deceased, under whom they claimed as heirs, and no necessity therefor. Appellees alleged, in substance, that appellant was a fraternal benefit society, operating as such under the laws of this state, and on the trial this allegation was admitted to be true. Article 4847 of our Revised Statutes provides, in substance, that no benefit or relief paid or provided by any such society shall be liable to attachment, garnishment, or other process or be seized, taken, appropriated, or applied by any legal or equitable process or operation of law to pay any debt or liability of the beneficiary, either before or after payment. Since the benefit which accrued to Mariah M^art in this case could not be subjected to the payment of her debts, there was no necessity for alleging and proving that there was no administration on her estate and no necessity therefor. Moore v. Lumbermen’s Reciprocal Ass’n (Tex. Com. App.) 262 S.W. 472, 473, pars. 2 and 3; Watts v. Gibson (Tex. Civ. App.) 33 S.W.(2d) 777, 780, et seq.

We have considered all appellant’s assignments of error and have reached the conclusion that none of them require or justify a reversal of the judgment, and it is therefore affirmed.


text:
    ASHBY v. STANDARD PIPE & SUPPLY CO.
    No. 4237.
    Court of Civil Appeals of Texas. Texarkana.
    Dec. 22, 1932.
    Rehearing Denied Jan. 5, 1933.

      Goggans & Ritchie, of Dallas, and W. M. Futch, of Henderson, for appellant.
    Brachfield & Wolfe, of Henderson, W. E. Fitzgerald, of Wichita Falls, and Sullivan & Wilson, of Dallas, for appellees.
   LEVY, J.

(after stating the case as above).

The pertinent point for review is the ruling complained of in the giving of the peremptory instruction to the jury to return a verdict against the plaintiff. It is believed the giving of the peremptory instruction to the jury is not open to the objection of being erroneous and legally unwarranted under the evidence. The subject-matter before the cour1* was a controversy relating purely to a trust, and the evidence bearing thereon was without conflict in the controlling points of the case. The trial court has made the correct disposition of the case in its several phases as to all the parties.

B. H. Ashby on March 17, 1930, bought from G. M. Joiner, trustee" the several oil royalties in suit as his individual property and for his own benefit, and paid the full purchase price in cash out of his own money. The check given by B. H. Ashby was dated March 17, 1930, and made payable to the order of O. M. Joiner in the sum of $1,145, and drawn on the Mercantile Bank & Trust Company in Dallas. Although a memorandum appeared on the margin of the check reading “Royalty to Okla-Tex Royalty Corporation,” yet the memorandum was placed there, as is clearly inferable, for the convenience of Mr. Ashby to preserve the information for his benefit. The memorandum has no other effect. While it appeared that B. H. Ashby and M. M. Miller officed together and were each engaged in the same common business of buying oil royalties, still they were “not partners,” as M. M. Miller admits, and this particular purchase was for the sole and exclusive property of B. H. Ashby. The conveyances of the oil royalties so purchased were thereafter on March 20, 1930, at the instance of B. H. Ashby made by C. M. Joiner, trustee, in the name of the Okla-Tex Royalty Corporation. B. H. Ashby himself had and directed C. M. Joiner, trustee, to make the conveyances of the oil royalties in the name of the royalty corporation instead of in his own purely as a matter of convenience. As , shown by the evidence of M. M. Miller, the conveyances of the oil royalties were directed to be made in the name of the royalty corporation in order “that they might be handled by the Corporation” in the event B. H. Ashby should be taken sick or be incapacitated to 'attend to business. The evidence conclusively negatives even any reasonable inference that the royalty corporation paid any part of the purchase money or that the money paid by Mr. Ashby was intended as an advancement or loan payable to it in stock. The royalty corporation had no funds and had not issued stock, and had not up to this time obtained any permit to do business in Texas. The royalty corporation was merely in existence as such, and was not at the time undertaking to commence the business for which it was created. It may be regarded, however, as a corporation of sufficient existence to merely hold the legal title of the oil royalties, although not at the time buying the royalties for its own business purposes, for there was proof of corporate meetings and the election of officers. The acceptance of a charter by the corporation arises from merely acting under it. 1 Cook on Corp. (Cth * Ed.) § 2a, p. 9. M. M. Miller testified, and his evidence is without conflict, that he told Mr. Jaffe and “every one that it (the royalties) was Mr. B. H. Ashby’s.” There is no pretense in the evidence that either the royalty corporation or M. M. Miller was claiming any interest or right in such oil royalties. In these facts stated the appellant’s contention must be sustained that a trust was established to exist in the oil royalties. A trust results, as a matter of pure law, in favor of B. H. Ashby as to the oil royalties, since he supplied the purchase money and intended the purchase for his own benefit and not for the benefit of the royalty corporation. Implied trusts are deducible from the nature of the transaction as matters of intent. 39 Cyc. pp. 25, 26. Whenever the purchase money for an estate in realty is paid by one person and the conveyance is to another, the legal presumption arises of an implied trust, ordinarily termed a resulting trust, in favor of him who pays the purchase money. 3 Pomeroy Eq. Jur. (4th Ed.) § 1, p. 1037; 39 Cyc. pp. 26-27; O’Connor v. Vineyard, 91 Tex. 488, 44 S. W. 485, quoting from Perry on Trusts. The principle on which the rule is based is that the beneficial estate follows the consideration and attaches to the person from whom it comes.

In the view of a trust being established to exist and arising in the conveyances to the royalty corporation on March 20, 1930, Was the sale and conveyance of the oil royalties in August, 1930, by the trustee, the Okla-Tex Royalty Corporation, valid? In August, 1930, the royalty corporation conveyed a portion of the oil royalties to C. M. Joiner,- trustee, and the entire remainder to the Standard Pipe & Supply Company. The sale and conveyance in both instances was under circumstances showing the existence of good faith and honesty in all matters, and nothing whatsoever adversary in conduct by the trustee or the agent acting for the trustee corporation. There was no production of oil or indications of its find at the time of the sale, and the price obtained for the royalties was the value thereof. It was duly and fully accounted for. The conveyance to C. M. Joiner, trustee, was in the nature of a reconveyance to him to cancel the original conveyance of an excess portion of the royalty. It was intended to restore to C. M. Joiner, trustee, the excess which was never in fact sold to B. H. Ashby and which B. H. Ashby was under obligation to reconvey or have reconveyed to Mr. Joiner. B. I-I. Ashby, as reflected by the minutes of the royalty corporation, fully recognized the error in quantity conveyed to him and assented to its reconveyance to O. M. Joiner, trustee. The conveyance, though, to Standard Pipe & Supply Company, of date August 1, 1930, was that of bargain and sale for the sum of $1,145 paid in cash, being the exact amount paid to C. M. Joiner, trustee, by B. H. Ashby on March 17, 1930. Each of the two conveyances, as made by the trustee, was in the name of the royalty corporation by M. M. Miller, but the authority of the royalty corporation to act through M. M. Miller may be held to have been sufficiently proven. M. M. Miller was the vice president of the corporation and was formally authorized by the board of directors by resolution of record to act generally for the corporation in the execution of documents. The manifest intention of the directors was to confer the authority generally of agents upon M. M. Miller and B. H. Ashby severally, or jointly and severally. And in the special situation proven, the execution of the conveyances by the royalty corporation by M. M. Miller was such execution as will be legally sufficient to conclude the royalty corporation. Neither one of such sales mentioned as made by the royalty corporation may be said to be in anywise contrary to the directions contained in the instrument of trust, for there were no duties imposed nor restrictions or directions whatever in the instrument of trust, which was the conveyances of March 17, 1930.

Ordinarily, in the absence of express authority conferred by the instrument creating the trust, and in the absence of the voluntary consent of the beneficiary, a trustee has no power to sell and convey the corpus of the trust property. Brown v. Harris, 7 Tex. Civ. App. 664, 27 S. W. 45; 39 Cyc. p. 346. But this rule is subject to qualifications, as other and peculiar circumstances may authorize or make necessary. And in this case it is apparent from the testimony that B. H. Ashby intended that these oil royalties should be sold by the royalty corporation. They were placed in the name of the corporation in the sole purpose “that they might be handled by the Corporation”; that is, disposed of by sale when necessary or in the discretion of the corporation in case B. H. Ashby got sick or physically incapacitated. In implied trusts, as here, there is no element of permanency. Thus in the circumstances shown a power of sale of the trust property can and may be implied. Montgomery v. Truehart (Tex. Civ. App.) 146 S. W. 284. Therefore there may not be predicated invalidity of the sale upon the absence of an order of sale or the trustee not first obtaining an order of sale or consent for sale from the probate court of Dallas county. Trust estates may be subject to courts of chancery, but probate courts have no jurisdiction. Dingman v. Beall, 213 Ill. 238, 72 N. E. 729; 39 Cyc. p. 593. The discretionary power of sale resting in the trustee, the authority of the probate court was not in anywise necessary to effectuate the sale by the trustee. If the sale was valid as to the trustee, it must necessarily follow that the sale passed title to the purchaser and he was entitled to a conveyance from the trustee.

There is sufficiency of consent and approval of Mrs. Ashby to the sale and conveyance by the trustee to conclude the bene-feciaries. Before the sale Mrs. Ashby was notified of the intention of the trustee to make the sale, and after the sale and conveyance she indorsed the check, and the money was paid to her thereon and was deposited in the estate. Her reception of the proceeds of the sale and her express recognition of the trusteeship of the Okla-Tex Royalty Corporation and' its authority to make sale would authorize the conclusive presumption and imputation of assent to, and approval of, the sale and conveyance. One who holds an equi-taLle interest in land is bound by a sale of such land by the trustee at his request, even though such request be not in writing. Although it be that in the first instance the husband has the exclusive management and control of the community, as this trust estate was shown to be, yet the husband was in this case duly and in all things legally adjudicated insane, and by reason thereof was incapacitated from performing this duty towards the community. Appellant as guardian took over and was then empowered to exercise that right. Article 4164, R. S.; Speer on Marital Rights (3d Ed.) § 80, p. 96. In virtue of that right, and as a necessary incident to such control of the community, she had the legal right to receive the proceeds of sale of the oil royalties and to assent to and approve the sale and conveyance by the trustee. Prior action of the probate court expressly conferring authority upon Mrs. Ashby to give such assent and approval to the sale by the trustee was not essential to infuse vitality into the sale and conveyance by the trustee.

The judgment is affirmed.


author: VAUGHAN, J.

text:
    BROTHERHOOD OF LOCOMOTIVE FIREMEN & ENGINEMEN v. HASSELL.
    No. 11085.
    Court of Civil Appeals of Texas. Dallas.
    Dec. 10, 1932.
    Rehearing Denied Jan. 14, 1933.

      John T. Suggs and R. W. Stoddard, both of Denison, for appellant.
    Webb & Webb, of Sherman, for appellee.
   VAUGHAN, J.

Appellee, as plaintiff in the court below, filed his suit against appellant, as defendant, on the 23d day of April, 1930, to recover from the relief fund of appellant $50 per month on account of becoming totally and permanently disabled or incapacitated from performing all manual labor on account ■of sustaining the loss of his left hand by amputation or actual separation at or above the wrist joint, due to and caused by an injury received December 14, 1927.

History of Appellant Order and the Nature and Result of the Suit.

Appellant is a voluntary association, primarily a labor organization, and was created in 1873. It is composed of a Grand Lodge and about 1,000 subordinate lodges scattered throughout the United States, with a- total membership of about 100,000. The appellant organization has a representative form of government, divided into local lodges with ritualistic form of work, and is not operated for profit. Its objects are to serve generally the interests and welfare of its members, and to provide a measure of protection against the disasters that overtake them in their hazardous callings. There is included protection by way of life insurance, indemnity on account of loss of a member by amputation ; and since 1926 a relief department has been established for the benefit of members wholly disabled by disease or injury and in case of superannuation. Since the organization of this department in 1926, 143 payments have been made on account of loss of members by amputation, and about 30,-640 claims under the total disability provisions. .Its rules providing for total disability benefits are as follows: “A member of the Relief Department in good standing upon the books of the Grand Lodge becoming totally and permanently disabled or incapacitated from performing all manual labor on account of Bright’s disease of the kidneys; uncompensated valvular disease of the heart; progressive pernicious anemia; permanent paralysis of either extremity, locomotor ataxia; total deafness in both ears; arthritis deformans; diabetes, cancer,, or sustaining the loss of a hand by amputation or actual separation at or above the wrist joint, or the loss of a foot by amputation or actual separation at or above the ankle joint, or becoming totally and permanently blind- in one or both eyes, shall be entitled to receive from the Relief Fund of the Organization fifty dollars ($50.00) per month. Payments of this amount to be continued so long as the member continues to-be totally and permanently disabled from performing all manual labor.”

In 1914, appellee, engaging in railroad work having to do with the operation of locomotives, became a member of the appellant organization, and such membership thereafter continued. He procured insurance against loss of a specific member by amputation, and also became a member of the relief department and was entitled to disability benefits coming within the coverage of its provisions. On December 14, 1927, he suffered an injury resulting in the loss of his left arm by amputation at or near the shoulder joint, and on account of which the appellant paid him, under his specific loss certificate, the sum of $3,000. On April 23, 1930. he filed this suit, seeking a recovery under the total disability provisions above set forth. He alleged his membership with appellant and the payment by him of all dues necessary to maintain him in good standing. He alleged that in consequence of the loss of his arm, he became totally and permanently disabled from performing any and all character of manual labor. He alleged the making of demand for payment and proceeding otherwise in conformity with the laws of the Order, and the rejection of his claim by its authorized officers. Recovery at the rate' of $50 per month from the date of the accident was prayed for, and also that the judgment condemn appellant to pay him $50 per month as long as he lived. Appellant answered by a general demurrer and general denial, and pleaded the payment of the specific indemnity for the loss of the arm. The jury, by their verdict, found that appellee’s injury had resulted in his total incapacity to do all manual labor, and that said incapacity was permanent. On this verdict, judgment for appellee was rendered on the 23d day of March, A. D. 1931, for $1,966.65, from which appellant duly prosecuted this appeal. Under the view we take of this case, we find it only necessary, in order to dispose of this appeal, to herein discuss appellant’s first proposition, viz.: “Appellee, being entitled to recover under the allegations of his petition and Under the provisions of the laws of his order only in case of his being totally disabled by the loss of his arm from’ performing any and all labor, and his own evidence definitely negativing such incapacity, he was not entitled to recover, and the requested peremptory instruction to the jury to return a verdict for the defendant should have been given.” And second proposition, viz.: “Even though the evidence might support a finding tliat performance of appellee’s work as truck driver and operator was attended by some pain or discomfort, as the result of the .loss of his arm, yet he would not he entitled to recover under appellee’s.laws, which awarded him relief only in case of his being totally incapacitated, and the requested peremptory instructions to the jury to find a verdict for the defendant should have been given.” The following facts were indisputably established by the evidence adduced by the testimony of appellee and his witnesses, viz.: That the stub of appellee’s arm having healed .92 days after the injury, he engaged in the trucking business; that he invited the patronage of the public generally; that he established a location where he might be found and where there was a telephone available for his service; that he was employed with his truck by the city of Deni-„ son, by the Kraft-Phoeriix Cheese Company, by V. C. Hardy, another truck line operator, and by contract for the handling of all the freight in and out of Denison over the Missouri, Kansas & Texas line of railroads in the store to store or pick up service ; that sometimes he drove the truck and sometimes another drove it, that he drove it whenever occasion demanded; it was just a question of who got under the wheel, if he got under the wheel first, he would drive, and if the other fellow got under the wheel first, he would drive. He further testified that he drove the truck home at night and back to work in the morning; that he drove it between Denison and Dallas. The evidence further established, without conflict in its terms, that appellee was regularly engaged in the trucking business, fully qualified to carry on alone an essential part of it, driving the truck, and loading same with small packages; that he hauled for the public generally, and for concerns' under regular contract; furthermore, no testimony was introduced from any source showing an occasion where the services of appellee and his truck were called for that he found himself unable to give same the needed attention. That from the date appellee was injured, December 14, 1927, to the date his wound had completely healed over, covered a period of 92 days during which he was totally disabled from performing all manual labor. Appellant promptly paid appellee the sum of $3,000, to which he was entitled under the provisions of his specific loss certificate. The provision of appellant organization providing for total disability benefits applicable to the claim of appellee, asserted thereunder, eliminating all other grounds for total disability benefits, reads as follows: “A member of the Relief Department in good standing upon the books of the Grand Lodge becoming totally and permanently disabled or incapacitated from performing all manual labor on account of * * * sustaining the loss of a hand by amputation or actual separation at or above the wrist joint, * * * shall be entitled to receive from the Relief Fund of the organization Fifty dollars ($50.-00) per month. Payments of this amount to be continued so long as the member continues to be totally and permanently disabled from performing all manual labor.”

Opinion.

Appellant duly requested the court to peremptorily instruct the jury as follows: “In this ease, you are instructed to return a verdict in favor of the defendant.” This charge, given in terms requested, would have been error, as, under the undisputed facts, appellee was entitled to recover for 3 months and 2 days “total * * * disability from performing all manual labor”; however, the charge was sufficient to call the court’s attention to this phase of the case, and to the further situation that appellee was not entitled to recover any further sum, as the evidence conclusively established that beyond said period of 3 months and 2 days appel-lee had not “become totally and permanently disabled or incapacitated from performing all manual labor on account of * * * sustaining the loss of a hand by amputation or actual separation at or above the wrist joint,” within the meaning of the rules of appellant’s organization, supra, providing for total disability benefits, in addition to the fixed indemnity sum of $3,000 payable on account of the loss of appellee’s left arm;’ therefore, the trial court should have peremptorily instructed the jury to return a verdict in favor of appellee only for the sum of $153.33. The instant case is predicated upon contractual relations, and therefore the broad legal rules of construction, applied to the provisions of the Workmen’s Compensation Law (title 130, R. C. S. 1925, art. 8306 et seq., as amended) to accomplish the purpose for which same was enacted, do not apply to this case; as each case of this character must be determined under and by the plain and comprehensive provisions oí’ the benefit certificate or laws of the Order forming the coverage and the facts upon which is based a claim for benefits. The rule is laid down in 1 Corpus Juris 466, § 169, to be: “The phrase ‘total inability to labor’ means a total disability to earn a live- ■ lihood at any employment, and if the insured, although unable to earn a livelihood at the particular labor at which he was engaged at the time of the injury, is capable of making a living at some other employment, he may not recover.” In the case of Buckner v. Jefferson Standard Life Ins. Co., 172 N. C. 762, 90 S. E. 897, it is said: “The authorities are practically unanimous that under the terms of this policy plaintiff cannot recover without showing a bodily injury that will incapacitate him, not only from following Ms usual avocation ,of fireman, but also from pursuing any other gainful occupation. The language is too plain, and the meaning too unmistakable, to permit an enlargement of the terms of the contract by construction. It -is unfortunate for the plaintiff, but ‘it is so nominated in the bond.’ ” To the same effect, see Metropolitan life Ins. Co. v. Wann (Tex. Civ. App.) 28 S.W.(2d) 196. This case was reversed by the Supreme Court only on the ground that the master policy was not introduced in evidence. See 41 S.W.(2d) 50. Ryon v. Railway Passenger Assurance Co., 46 Iowa, 631; Hunt v. Northern Central Ry. Co., 124 App. Div. 43, 108 N. Y. S. 267; Vol. 4 Cooley’s Briefs p. 3293; Joyce on Insurance (2d Ed.) Vol. 5, art. 3031. There is not presented by this suit an accident insurance policy issued by a company governed by its board of directors and executive officers, and engaged in the business for profit. In such a ease, the form of policy is prescribed by the company, its premium rates are fixed at a figure which, based on long and completely kept statistics, will insure a fund out of which all losses and claims may be paid, commissions to agents, taxes, expense of claim adjustments, administrative expenses, and all other charges and payments that must be met by such a company, and still leave a margin of profit for the stockholders of the corporation. Men engaged in engine and train service are either excluded from commercial stock companies as prohibited risks, or the same objective is reached by the premium rates which are, for all practical purposes, prohibitive. The very conditions that deny to these men the insurance protection that is afforded to those in less hazardous callings, must increase the difficulties attending the solution of their own problems. The outstanding objectives to be attained are, first, protection' to dependents in ease of death; second, the protection of the individual in case of loss of a member with the consequent decreased ability to labor; and, third, the protection of the individual for periods during' which he is wholly disabled from performing all manual labor. These objectives must be attained by the members of the Brotherhood and the measure of protection is inexorably' limited by the source from which it must come; the wages of the men themselves. It inevitably follows that the measure of this protection'must be adjusted to or limited by their ability to pay. Presumably, they are in possession of statistics and records pertaining to death of and injury to men employed in this line of railroad work. It is reasonable to presume that the members of the Order, through their representatives, would like to provide a generous death or dismemberment benefit at a cost which could be met by the insured out of his wages; and to provide a generous benefit if one of their members should become permanently disabled from performing the duties of his employment, as is frequently the case in the commercial policies, but cannot accomplish this by the means available. Under the above environments surrounding the creation and maintenance of appellant organization; it may be assumed that in the creation of its style of insurance for protection of its members and their dependents, that the organization provided the best protection possible under the circumstances; and, as applied to disability, there could only be extended, within the limitation of its resources for that purpose to a member, a monthly benefit for periods during wMch, either from specified disease or injury, he finds himself totally disabled from performing all manual labor. Such payments to be continued so long as a member continues to be totally and permanently disabled from performing all manual labor. Under the above-cited authorities, it will be noted the distinction is clearly drawn between the cases where the coverage is from the disability of the insured and where the indemnity is provided only in case of total and permanent disability or incapacity from performing all manual labor.' The conclusion to which we have been lead by the careful consideration ¡given to the record of this causé, requires that same be reversed and rendered; it affirmatively appearing from the record that the cause has been fully developed and that no ground exists requiring same to be remanded. Therefore the judgment of the trial court is reversed, and the judgment that should have been, upon a properly instructed verdict, rendered by the trial court is here rendered, viz.: That the appellee recover of and from appellant the sum of $153.-33, with interest thereon from April 1, 1928, at the rate of 6 per cent, per annum, and all costs of the court below. That this adjudication is without prejudice to the rights of appellee to institute and prosecute a suit to-judgment as a member of the relief department of appellant’s Order on account of having become or becoming, at any time after March 23d, A. D. 1931, the date of judgment appealed from, totally and permanently disabled or incapacitated from performing all manual labor on account of having sustained the loss of his left hand through injury sustained by him to his left arm on the 14th day of December, A. D. 1927. It is further ordered and adjudged that as to the costs of this appeal, it appearing from the record that appellant failed to. present to the trial court a correctly prepared request for an instructed verdict in its favor as herein pointed out, whereby it is probable that appellant contributed to the error committed by the trial court in not instructing the jury to return a verdict for $153.33 in favor of appellee, we are of the opinion that the costs of this appeal should be, and the same is hereby, taxed against appellant.

Reversed and rendered.


author: PELPHREY, C. J.

text:
    BLAYLOCK v. SHEFFIELD RUBBER PRODUCTS CORPORATION et al.
    No. 2757.
    Court of Civil Appeals of Texas. El Paso.
    Jan. 5, 1933.
    Rehearing Denied Jan. 19, 1933.
    McBride, O’Donnell & Hamilton and J. L. Lipscomb, all of Dallas, for appellant.
    W. R. Herring and Robert Ogden, both of Dallas, for appellees.
   PELPHREY, C. J.

Appellant sued Sheffield Rubber Products Corporation and R. E. Thompson, receiver of the corporation, to recover the balance due upon a certain promissory note which he alleged the defendant corporation had assumed to pay.

The parties will be designated as in the trial court.

' Prior to the filing of this suit and after the note herein sued upon had become due, the 101st district court appointed R. E. Thompson receiver for the Sheffield Rubber Products Corporation of Dallas, Tex. The note was secured by a 'deed of trust on the corporation’s factory site. Plaintiff was not a party to the receivership suit and did not intervene therein. While the receivership was pending, plaintiff posted the property for sale under the deed of trust; the date of sale being fixed on December 2, 1930. On the day previous - to the sale the receiver obtained a temporary injunction from the 101st district court restraining the sale. On the following day the court dissolved the injunction and the sale was held. Plaintiff bought the property in for $20,000, and has brought this suit seeking a deficiency judgment.

Defendants answered by general demurrer; general denial, and specially pleaded that the note sued upon had been paid off in full about December 2, 1930. In support of the plea of payment, they alleged that the temporary injunction was dissolved upon the agreement of the parties that the property should be sold by plaintiff to satisfy his lien and that he would expressly release the defendants from any further liability arising by virtue of the note and lien, and that he would accept the proceeds of the sale as full and complete accord, satisfaction, acquittance, and release of all his claim against defendants arising out of the note and lien.

They further pleaded that in addition to the above agreement the parties with the approval of the judge of the 101st district court entered into a written agreement whereby plaintiff, agreed to accept the foreclosure sale of the property as a complete satisfaction and discharge of his claim on the note and lien. This agreement was attached to the petition and reads:

“This agreement entered into by and between L. Blaylock and R. E. Thompson, receiver of the Sheffield Rubber Products Corporation, witnesseth:
“1. Blaylock 'is the owner of a first, valid and enforceable lien "in the principal sum of $22,500.00, evidenced by a note dated December 1st, 1922, due five years after date, payable to the order of F. R. Perkins, and executed by R. H. Dillon and Lula K. Dillon, and secured by a lien against a tract of land 98 feet by 150 feet, bounded on the south by Davis street, on the west by Tyler and on the North by Foreaker Street, and being the southwest end of Block No. 3108. according to the official map of the City of Dallas, and being more particularly described in the application for injunction heretofore filed by R. E. Thompson, receiver, and;
“Whereas, R. E. Thompson, receiver for the Sheffield Rubber Products Corporation, has heretofore had issued a writ of injunction restraining L. W. Blaylock, Louis Blay-lock and F. R. Perkins, from selling the above described real estate in satisfaction of said note and liens, and in order to compromise the difference between the parties hereto, this agreement witnesseth:
“1. It is hereby agreed that said writ of injunction be, and the same is hereby dissolved with the consent of the court.
“2. That the trustee’s sale scheduled for Tuesday, December the 2nd, 1930, may be held.
“3. The trustee’s deed to be executed by reason of said sale is to be withheld from record until January the 26th, 1930.
“4. That the receiver, R» E. Thompson, shall remain in possession of the property until said date and shall have full and complete control as heretofore.
“5. That the said R. E. Thompson, Receiver, shall have the right to sell said real estate for such sum as may be approved by the court, and for sufficient, at least, to satisfy the first lien. The first proceeds of said sale to go towards the liquidation of the first lien.
“6. Upon sale by R. B. Thompson during the hereinabove mentioned period of time, the undersigned, D. Blaylock, his heirs and attorneys agree to surrender the unrecorded Trustee’s deed to the receiver, and if requested, to execute a quit-claim deed to said property.
“7. The receiver shall use all diligence to secure an order of the 101st Judicial District Court directing the payment of the balance due on checks received from the insurance company for the damages to the building by the fire, and if said order is entered then said receiver shall apply such sum to the taxes now due and the property as far as said sum will go.
“8. It is further agreed that the said receiver, in handling said property, is not to be interfered with by anyone, but said receiver shall have the privilege of consulting the owner of the-note as to such sale, if the receiver sees fit to so consult said owner.
“Executed in triplicate this the 2nd day of December, A. D. 1930, and approved by the Judge of the 101st Judicial District Court.”

The case was submitted to the jury upon the following special issue: “Do you find and believe from a preponderance of the evidence that the plaintiff expressly agreed with the defendant on December 2nd, 1930, that if the plaintiff be allowed to make the foreclosure sale as advertised for that 'date, that the plaintiff would accept the purchase price obtained at said sale in full and complete . accord, satisfaction, acquittance and release of the note in question?”

Upon an affirmative answer to said issue the court rendered judgment that plaintiff take nothing, and he has appealed.

Opinion.

Plaintiff presents thirty-three assignments of error and four propositions thereunder 'in his brief.

His contentions therein being, as we understand them: (1) That the written contract and the oral contract being ‘between the same parties and covering the same subject-mat•ter, and the written contract being the final repository of the agreement, it should control; (2) that evidence of the oral contract was not admissible, it being in conflict with the written contract; (3) that the written contract not being ambiguous, and there being no pleading that any portion of the agreement was omitted or inserted through fraud, accident, or mistake, there was no issue for the jury to determine and the court should have construed the written contract; and (4) that defendants having relied upon the oral agreement as a defense, they could not enforce a waiver by plaintiff without showing that they had performed their part of said agreement.

Defendants counter with the contention that their defense was bottomed upon a distinct and separate oral agreement, which did not represent negotiations and preliminary conversation leading up to the written agreement, but that the written agreement, as pleaded by them, was a further agreement; that the oral agreement constituted a part of the consideration for the written agreement, and being specific and clear as to a matter respecting which the written agreement was not clear, evidence of the oral agreement was admissible; that the oral agreement being a part of the consideration for the written agreement and in no wise contrary to or inconsistent with it, evidence of it was properly admitted; and that since the written agreement was not specific in its terms as to the foreclosure, and since the prior oral agreement was definite and certain as to that feature of the agreement between the parties, and was not inconsistent with the provisions of the written agreement, evidence thereof was admissible without any allegation of fraud, accident, or mistake.

In approaching the questions here presented, we should first reach a decision as to whether there were two separate agreements, to wit, one parol and the other written, or whether the contract between the parties rested partly in parol and partly in writing. Naturally if there were two separate agreements entered into, then evidence of the parol agreement could be admitted to prove that agreement, and if the agreement was partly ■ oral and partly written, parol evidence of the oral part would be admissible, provided it is not found to be inconsistent with the written part. 17 Tex. Jur. § 366, p. 817.

■ Rrom an examination of the record we have reached the conclusion that there were not two separate agreements as alleged by defendants.

It appears that the parties met in the courtroom of the 101st district court not earlier than 2 o’clock in the afternoon of December 2d, and that the injunction was dissolved at 3:40 p. m. of that same afternoon.

The purpose, clearly, of that meeting was to discuss the question of having the injunc-tlon dissolved in order that the sale might proceed as advertised.

It appears from defendant’s own witnesses that the' receiver was anxious to delay the sale for a while in order that he might effect some trades he had in mind by which he thought he might realize more out of the property than plaintiff’s lien amounted to, #nd thereby sgtve for the .creditors and stockholders of the company the surplus. At most, it appears to us, there was one negotiation and one agreement, part of which was oral and part reduced to writing.

Contracts may be entered into resting partly in parol and partly in writing, and the oral part may he shown by parol provided it is not inconsistent with the part reduced, to writing. 17 Tex. Jur. § 366, p.' 817, and cases cited.

Therefore, in view of our conclusion as to what the record shows, the next question will be: Is there a conflict between the oral and written parts of the agreement here?

According to the oral part plaintiff agreed that, if permitted to make the foreclosure sale, he would accept the price obtained at such sale in complete accord, satisfaction, acquittance, and release of the note; yet, we find in the written agreement provisions to the effect that any deed given by virtue of such sale should be withheld from the record for almost two months, that the receiver should remain in possession and have full and complete control thereof until such later date, that said receiver should have the right to sell the property for any amount approved by the court, and that in case of a sale by the receiver, plaintiff would surrender the trustee’s deed to him, and, if requested, execute a quitclaim deed to the property.

It is clear, we think, that the oral agreement proved is in conflict with the above provisions.

We fail to see how, if plaintiff was to receive the proceeds of the sale in full satisfaction of his claim on the note, he would he at liberty to make the sale with the restrictions placed upon him by the written agreement, and how he could effect a sale of the property on December 2d, when the receiver was authorized to make a sale of the same property between that time and January 26th, following.

The provision that, in case of sale by the receiver, plaintiff was obligated to surrender the unrecorded trustee’s deed to him and exegute a quitclaim deed to him, was a further restriction upon the sale which is, we think, inconsistent with the idea that plaintiff was to accept the proceeds derived from the sale of the property in lieu of his claim on the note, for such provision would have the effect of limiting the sale to only the plaintiff himself. It therefore follows that the evidence of the oral part of the agreement was improperly admitted.

We will not reverse and here render as appellant requests. The record suggests that-under proper pleadings the case may be brought within the recognized exception to the parol evidence rule in cases of mutual mistake.

Reversed and remanded.


author: • HIGGINS, .T.

text:
    WARE v. CHATHAM.
    No. 2760.
    Court of Civil Appeals of Texas. El Paso.
    Dec. 15, 1932.
    Rehearing Denied Jan. 5, 1933.
    Claud C. Westerfeld, of Dallas, for plaintiff in error.
    Ered J. Dudley & Associates, of Dallas, for defendant in error.
   • HIGGINS, .T.

Chatham brought this suit against Ware, and, from an adverse judgment, the latter prosecutes this writ of error. .The parties ■will be designated as they were in the trial • court.

' The allegations of the petition, briefly stat-fed, are to the following effect: In October, 1928, the parties agreed to form a partnership, each to contribute $2,000 to the partnership capital; defendant was also to furnish a farm owned by him upon which the partnership business would be conducted and would make certain repairs to a house upon the land and repair the fences to protect the poultry to be raised thereon. Defendant employed plaintiff to make the said repairs upon the house and fences and agreed to pay plaintiff for his labor in so doing and for the materials purchased by plaintiff to make such repairs. Defendant also agreed to pay .plaintiff for such moneyas he might expend in feeding and caring for certain stock upon the land belonging to defendant. For labor and expenditures for ■ all such purposes defendant became liable to plaintiff for $550.14.

Beginning in February and continuing un- ' til July in 1929, plaintiff began to advance 'his agreed $2,000, and for the purpose of establishing the poultry business and fulfilling his agreement he paid out cash as follows:

Equipment and merchandise and stock...•.$1,158.01

Labor, . 374.57

Labor for chicken houses (additional) . 144.97

‘Total. 1,677.55

The petition then admits credits to which defendant is entitled of $200, on the claim of $550.14 for labor and materials furnished as aforesaid, and a further credit of $450 advanced on the $2,000 which defendant was .to contribute to the partnership capital.

Defendant breached his agreement and de- ■. manded possession of the land whereby the ■ enterprise became hopeless and plaintiff was forced to abandon the farm.

“This plaintiff respectfully shows to the Court that under the facts herein, that the same constituted ¿nd was a violation by the defendant of his contract to enter into a partnership with the plaintiff and that this de- ■ fendant is liable to the plaintiff not only for the sums of money which was advanced by the plaintiff and the labor that he did, all for the defendant’s individual account, but that this defendant is liable for the sums of money which the plaintiff advanced in good faith and in an attempt to carry out his contract, performance thereunder being prevented by the capricious and arbitrary refusal of the defendant to carry out his contract.

“That in the event it may be considered that an actual partnership was formed by reason of these facts between plaintiff and defendant, that the transactions herein were not between the parties in the relationship of partners as such and there is no necessity for any accounting, there being no complicated accounts between the parties in the relationship of partners as such and there is no necessity for any accounting, or any’profits or losses in the partnership business as such, but that in the event such is necessary this plaintiff is entitled to an accounting against the defendant as a partner and in the alterna-. tive prays for such account.”

'The prayer was for “judgment for his debt, and damages sustained by reason-of the defendant’s breach of his contract with the plaintiff, that' he have in the alternative a full and strict account from this defendant of the profits and losses of the partnership sustained or received,” for costs and general relief.

Defendant answered by demurrers, general and special, general denial, and special pleas. In such special pleas defendant admitted they entered into a partnership to raise turkeys upon the farm, and alleged facts showing that the enterprise was launched under the management of plaintiff; he alleged mismanagement of the business and breach by plaintiff of the terms of the partnership agreement; the unnecessary purchase of building material upon defendant’s credit which" he was obliged to pay; destruction of and damage to improvements on the farm; false representations by plaintiff of his knowledge of the turkey raising business, and alleged further that in July, 1929, plaintiff advised defendant that he (plaintiff) was through with the turkey business and wanted defendant to pay him for his losses.

Defendant also set up a cross-action seeking to recover money that he had been compelled to .pay for building material'purchased upon his credit by plaintiff; damages for destruction and injury to improvements on the farm; damages for loss of a rental contract upon the farm by the wrongful acts of plaintiff.

The case was submitted to a jury upon numerous special issues, all of which were found in favor of plaintiff in whose favor judgment was rendered for $1,619.25, upon which a remittitur of $216.81 was later entered. While there is an alternative prayer for an accounting, the case was not tried or submitted upon any such theory. Furthermore, the petition negatives the theory that the partnership relation arose between the parties.

We shall not undertake to discuss separately the various propositions submitted in the brief of plaintiff in error. We will simply announce our views upon the controlling questions.

In brief, the plaintiff seeks to recover $550.-14 for labor and expenditures incurred by him which the defendant promised to pay, and the further sum of $1,677.55, advanced by plaintiff to the capital of the firm, less the credits above stated. The latter sum he seeks to recover as damages for breach of an alleged executory contract to form a partnership.

The defendant’s answer and the evidence discloses that the contract passed the executory stage; that the partnership was formed; the business commenced and operated for a few months. This being the case, the plaintiff could not recover the item of $1,677.-55 as damages for breach of an executory contract to form a partnership as the petition seeks to do.

There is no allegation that the partnership was to endure for any fixed term, and, in the absence of an agreement as to the duration of the partnership, it is to be considered as a partnership at will. A member of such a partnership may dissolve it at any time. 47 C. J. Title Partnership, § 758; Wright v. Ross, 30 Tex. 207, 70 S. W. 234.

The partnership here was an unprofitable venture, and, as to the item of $1,677.55 advanced to the partnership, the plaintiff’s cause of action, if any, is for accounting and contribution. This is not the case pleaded nor the theory upon which i,t was tried and submitted to the jury. In so far as this item is concerned, the effect of the judgment is to reimburse plaintiff for his losses in. the unprofitable venture and impose upon his partner, Ware, all of the losses susiained by the partnership. The judgment awarding damages for the item last mentioned cannot be sustained. Lockhart v. Lytle, 47 Tex. 452; Merriwether v. Hardeman, 51 Tex. 436; Hardee v. Adams Oil Ass’n (Tex. Civ. App.) 254 S. W. 602.

As to the item of $550.14, this is money alleged to be due plaintiff by defendant for labor and materials furnished upon a personal contract of employment.

The obligation of this contract is distinct and separate from the mutual obligations of the partnership members. The failure to pay is a breach of an individual contract between the parties, and we can see no good reason why the action to recover the sums so agreed to be paid cannot be maintained independent of a settlement of the partnership accounts. 30 Cyc. 465; Hardee v. Adams Oil Ass’n, supra; Reeves v. White (Tex. Civ. App.) 161 S. W. 43.

Or, it may be properly joined in an appropriate. action for accounting and contribution. .The partnership has been dissolved. Our courts are exceedingly liberal in permitting the joinder of several causes of action arising out of the same transaction, or which are so connected with the same subject-matter as that they may be conveniently ■ litigated in the same suit. ' 1 Tex. Jur. title Actions, § 37.

There is mo good reason why the controversy over the two claims set up in the petition may not be settled in one suit and the litigation between the parties ended.

Reversed and remanded.