author: FUNDERBURK, Justice.

text:
    RAMSEY v. ABILENE BUILDING & LOAN ASS’N et al.
    No. 1078.
    Court of Civil Appeals of Texas. Eastland.
    Feb. 24, 1933.
    York & Camp, of Abilene, for appellant.
    Davidson, Doss & McMahon, of Abilene, for appellees.
   FUNDERBURK, Justice.

The Abilene Building & Loan Association recovered judgment against H. H. Ramsey and others upon a note for a balance of $627.-82, with interest and attorney’s fees, and for foreclosure of a deed of trust lien securing same. H. H. Ramsey, one of the defendants, impleaded Mrs. Edna E. Alexander, a widow, and by cross-action against her sought recovery for the same amount he should be adjudged to pay said building and loan association. For cause of action, Ramsey alleged, in substance, that on or about January 15, 1926, a conveyance of certain, described land was made by M. A. Youngblood and wife to Dr. S. M. Alexander, the deceased husband of said Mrs. Edna E. Alexander, for a total consideration of $6,400; as a part of said consideration, a cash payment of $2,-497.50 was recited and acknowledged; that of said sum only a part was actually paid in cash, and the remainder in the sum of $1,-595.86 was provided to be paid by Alexander by assuming a like sum then due by Youngblood to Abilene Building & Loan Association (the same debt herein sued upon by the plaintiff); the agreement being as follows:

“1,595.86 Note No. 1 “Abilene, Texas, January 15, 1926.
“Payable as hereinafter set forth, I hereby promise to pay to the order óf M. A. Young-blood and wife, Mrs. Dora May Youngblood, the sum of Fifteen Hundred Ninety-Five and 86/100 ($1,595.86) Dollars, the principal payable in monthly installments of Thirty-one and 66/100 ($31.66) Dollars each, the first installment to become due and payable on or before the 1st day of each succeeding month thereafter until the whole principal sum is paid.

It is understood and agreed, however, that S. M. Alexander, the maker hereof, has agreed to assume the payment of a balance of Fifteen Hundred Ninety-Five and 86/100 ($1,595.86) Dollars payable in monthly installments of Thirty-one and 66/100 ($31.66) Dollars each, due by the payees herein to Abilene Building & Loan Association, which sum is secured by a lien on Lots Nos. One (1) and Two (2) Block No. Five (5) Lakeside Addition to the City of Abilene, Taylor County, Texas, and this note shall become due and payable as hereinabove set forth only in the event that the said S. M. Alexander shall fail or refuse to make the payments due to said Abilene Building & Loan Association on the indebtedness hereinabove described, and in the event of such failure all the payments which said Alexander may fail to make to said association shall bear interest from their maturity at the rate of eight per cent per annum, payable monthly, but in the event the said Alexander shall promptly meet said payments to said association as same shall become due and payable according to the terms of the note and deed of trust describing the same, then and in that event this note shall be null and void.

“It is further understood that this note is non-negotiable in any event.

“It is understood and agreed that the failure of the said Alexander to promptly meet said installments to said association as above set forth shall at the election of the holders of this note mature this note and it shall at once become due and payable. And it is further especially agreed that if this note is placed in the hands of attorneys for collection, or if collected by suit or through the probate or bankruptcy courts I agree to pay 10 per cent additional on the principal and interest then due hereon as attorney’s fees.

“[Signed] S. M. Alexander.”
On reverse appears:
“May 4th, 1926.
“For value received we hereby sell, transfer and convey the within obligation to H. H. Ramsey.'
“[Signed] M. A. Youngblood
“Dora May Youngblood.”

It was alleged that the balance claimed by the plaintiff was the same as the balance due upon the said obligation of S. M. Alexander; that Alexander was dead; that on February 22, 1927, prior to his death, he had conveyed all his property to his said wife without consideration other than “love and affection”; that he died insolvent by reason of said conveyance and transfer of all his property to his wife; that “no administration can therefore be had and none is necessary because he left no property to administer.” Ramsey, by assumption, had become obligated to pay the debt of the building and loan association, and succeeded by transfer to the rights of Youngblood and wife under the above obligation. It was alleged that the conveyance of property from Alexander to his wife was fraudulent as to said Ramsey. He sought to have same so declared and to have judgment against Mrs. Alexander for the same amount recovered against him by the building and loan association.

The court, upon a nonjury trial, gave judgment in favor of Abilene Building & Loan Association against Ramsey and others upon the note, with foreclosure of the lien, and as to that action of the court no complaint is made. Upon said cross-action of Ramsey against Mrs. Alexander, the court adjudged that Ramsey take nothing. The trial judge filed conclusions of fact and law. Ramsey has appealed.

Appellant contends that the instrument above set out in full is a bond; that the obligation it imposed upon Dr. S. M. Alexander was to pay the balance then due on the note originally for $2,000- given by Young-blood and wife to the Abilene Building & Loan Association, and that, since the court found such balance due to be $660.72, the appellant was entitled to judgment establishing the same amount as a debt against the estate of Dr. S. M. Alexander and to have the property in the hands of Mrs. Alexander subjected to the payment thereof, and that the court erred in finding to the contrary. On the other hand, it seems to have been the view of appellee and of the trial court, as reflected in the conclusions of fact and law, that Dr. Alexander’s obligation was to pay the sum specified in the said note or bond set out above by paying each installment as provided therein, and that, same having been done, his entire obligation was thereby discharged. We have reached the conclusion that the written instrument in question is a bond and not a note. The obligation it imposed was to pay the balance ' due on the note held by the 'Abilene Building & Loan Association, which was originally the obligation of Youngblood, but later, by assumption, also the obligation of Ramsey. The bond of Dr. Alexander was therefore not discharged by payment of the penal sum specified in the bond unless the amount of such payment was at the same time sufficient to discharge the note of the building and loan association. The payments made by Dr. Alexander (and his wife after his death) should properly have been credited, not upon the bond, but upon the note of- the building and loan association. It is true the bond makes no express mention of an obligation to pay interest. It is this omission which calls for construction of the instrument to ascertain the intent of the parties. It must be borne in mind that this bond was given in lieu of the payment of the same amount in cash, as a part of the consideration for the conveyance of land by Youngblood and wife to Dr. Alexander. It is clear from the record that the principal sum of $1,595.S6 was the balance of the principal then due on the note of the building and loan association. Had Dr. Alexander paid the $1,595.86 then in cash, Youngblood could have discharged his obligation to the loan association. Why should he accept in lieu of the cash an obligation to pay the same amount in the future in installments unless it was intended that Dr. Alexander should pay the subsequently accruing interest? This circumstance, we think, is proper to be considered, in construing the instrument, to ascertain the intent of the parties. It lends definiteness and certainty to the meaning of the condition in the bond that the same should become null and void, if “the said Alexander shall promptly meet said payments to said association as same shall become due and payable, according to the terms of the note and the deed of trust describing the same.” (Italics ours.) When the terms of the said note and deed of trust are looked to to ascertain the extent of the undertaking which the bond secured, it is very clear, we think, that same includes the payment of interest.

From these conclusions it results that in our opinion appellant was entitled to judgment against Mrs. Alexander, piovided, of course, the court had jurisdiction and the property which appellee received from her husband was sufficient in amount and liable to be subjected to the payment of the said debt.

Although the trial court rendered judgment against appellant and in favor of ap-pellee Mrs. Alexander, one of the trial judge’s conclusions of law was that the' court was without jurisdiction. Of course, the only proper judgment upon such a conclusion would have been one dismissing the cross-action. However, since the court also made findings on the issues involving the merits and which necessarily presupposed jurisdiction, we think we may properly disregard the finding of the want of jurisdiction, provided we reach the conclusion that the court did have jurisdiction. We come now to a consideration of that question.

As we interpret the cross-action, appellant sought judgment against appellee, not as an heir or devisee of her husband, but as the grantee in a conveyance made in fraud of Dr. Alexander’s creditors, of which appellant was one. Of such action, regardless, of the pendency of administration in the probate court, the district court had jurisdiction. In Willis v. /Smith, 65 Tex. 658, it was held that the representative of an estate has no interest in property sold by the decedent in fraud of creditors, and that hence, in a creditor’s suit to subject such property to his debt, the representative is not a proper party. In the same case a distinction is pointed out where the purpose of the action is to subject to the creditor’s debt property descended to his heirs. If the representative of the estate had no interest, then it follows that the probate court would have no jurisdiction. In Cannon v. McDaniel, 46 Tex. 303, the jurisdiction of the district court of such an action had been recognized, and in that case, the property being much greater than the debt, it was deemed that the representative of the estate was a proper party, in order to have the excess adjudged to him. The point is that the district court, where the amount involved is sufficient, has jurisdiction of such an action, rather than the probate court. “The general rule is that, when a debtor dies, creditors must enforce their claims in the probate court, and- cannot, within the time allowed by law for the issuance of letters of administration, maintain an action against the heirs or devisees.” Floyd v. Watkins, 34 Tex. Civ. App. 3, 79 S. W. 612, 614. But this rule is subject to exceptions. One well-recognized exception is where there is no administration pending and there exists no necessity for same. Patterson v. Allen, 50 Tex. 23; Solomon v. Skinner, 82 Tex. 345,18 S. W. 698; Floyd v. Watkins, supra. Another is where equities are required to be adjusted. Lauraine v. Ashe, 109 Tex. 69, 191 S. W. 563, 196 S. W. 501. But the instant case is believed to be entirely without the rule or any of its exceptions, since, in effect, as already said, the action is not against heirs or devisees, but against the grantee in a conveyance claimed to have been in fraud of appellant as a creditor of Dr. Alexander. Of such an action the probate court was without jurisdiction. We therefore hold that the court below did have jurisdiction of the cross-action.

The trial court filed conclusions of fact, which, if supported by sufficient evidence, warranted his conclusion of law to the effect that the conveyance in question from Dr. S. M. Alexander to appellee was not in fraud of creditors. These conclusions of fact and law, if properly supported, would, regardless of the correctness or not of others, support the judgment rendered.

Appellant’s second assignment of error and third proposition in support thereof present the question of the sufficiency of the evidence to support the finding that Dr. Alexander, at the time of his death, was solvent, and that at said time he owned personal property in Texas in value far in excess of all of his debts. The eighth assignment of error, in connection with the second proposition, seeks to present the contention that the undisputed evidence showed that there was no consideration given for the conveyance in question, and hence same was voluntary. To sustain one or the other of these contentions, without sustaining both, would not affect the Correctness of the trial court’s judgment.

We will take up the question of consideration first. By the terms of the statute, the consideration necessary is one “deemed valuable in law.” R. S. 1925, art. 3997. An expressed consideration “of love and affection” is not one “deemed valuable in law.” 20 Tex. Jur. p. 415, § 56. Neither is one for a merely nominal consideration. Id. § 57; Goolsby v. Manning (Tex. Civ. App.) 270 S. W. 936; Hartman v. Hartman (Tex. Civ. App.) 32 S.W.(2d) 233. The consideration recited in the deed in question is $10 and love and affection. There was no evidence showing any. other consideration. Mrs. Alexander testified she paid $10 to an attorney. This does not even show that the $10 was paid as a consideration for the deed. The deed in question conveyed four different tracts of land; one of them being 160 acres of land in Taylor county. If there was any consideration other than “love and affection,” it was merely nominal. We have concluded that the undisputed evidence showed that the deed was voluntary.

The deed being voluntary, the burden was upon appellee Mrs. Alexander, to show the existence of other property sufficient to pay all the debts. The deed in question did not become effective and was not intended to become effective until the death of the grantor. The time of his death was therefore the time of the transaction about which tile inquiry must be directed. The rule is: “In order for a voluntary conveyance to be valid, the debtor must retain property of which he has an open and visible ownership —of such value that, when subjected to forced sale, it'Will yield a sufficient sum to pay all the existing debts, as well as the taxable costs of their collection.” 20 Tex. Jur. p. 418, § 61. The testimony of appellee showed that, other than the property, described in the deed in question, about all the property Dr. Alexander owned was some notes, accounts, and household goods. She further testified that, besides the debt, if any, owing to the appellant, Dr. Alexander owed about $2,700. There was no testimony as to the value of the personal property. She testified that about $1,200 had been collected upon the notes and accounts. This testimony, we think, when tested by the rule stated above, is insufficient to show as the statute requires, that, besides the property described in the deed, Dr. Alexander, at the time of his death, “was then possessed of property within this state subject to execution sufficient to pay his existing debts.” But, whether so or hot, we think the undisputed evidence shows that all of his property was conveyed to appellee. In the letter of instructions to O. W. Gill, with reference to the delivery of the deed to ap-pellee -at the grantor’s death, he said: “It is my sincere desire and purpose that she have all my property, particularly as described in this deed, and I execute and deliver it to you as above to the end that my wishes may be fully carried out.” In appel-lee’s pleading resisting an action to probate the will of Dr. Alexander, she alleged that the will had been revoked; that at any rate there was no necessity for probating same, as all the property that could come to her under the will “has long since been duly and legally transferred to this defendant l)y proper instruments in writing.” She contended in said pleading-that there was no necessity for administration. Although Mrs. Alexander was a witness, she did not attempt to explain or impair the force of these declarations. Being with reference to a matter as to which the burden of proof was upon her, we cannot escape the conclusions that the undisputed evidence shows that not only the real estate, but all the personal property, was transferred to appellee.

The evidence is meager concerning the value of the property transferred, but sufficient, we think, to clearly show that it amounted to more than appellant’s claim.

It is therefore our opinion that the judgment of the court below should be affirmed as to the appellee Abilene Building & Doan Association, but as to the subject of the cross-action the same should be reversed and here rendered in favor of the appellant, H. H. Ramsey, as prayed for, all of which is accordingly so ordered.


source: Caselaw Access Project

author: LESLIE, Justice.

license: Public Domain

text:
    FIRST NAT. BANK OF MUNDAY v. GUINN et al.
    No. 1076.
    Court of Civil Appeals of Texas. Eastland.
    Feb. 24, 1933.

      J. S. Kendall, of Munday, for appellant.
    D. J. Brookreson, of Benjamin, and M. F. Billingsley, of Munday, for appellees.
   LESLIE, Justice.

This is a garnishment proceeding sued out by the First National Bank of Munday in a suit pending in the district court against Ben I. Guinn, defendant; the appellee Bankers’ Guaranty Life Company being garnishee. On appearance day of the first term after service of garnishment, the defendant Guinn, without having filed replevy bond, made a motion to quash the writ of garnishment on the grounds of variance between the plaintiff's petition and' the affidavit for garnishment. The court heard the motion to quash and sustained the same. The garnishment proceedings being thus disposed of, the First National Bank prosecutes this appeal.

Appellant’s first proposition is without merit, and will not be discussed.

The second one is to the effect that the court erred in quashing the garnishment proceeding on motion of the defendant, since he had no authority to make the same, inasmuch as he had not filed replevy bond, etc. The appellant presents the proposition on the authority of Wasson v. Harris (Tex. Civ. App.) 209 S. W. 758, and Margerum v. Sopher (Tex. Civ. App.) 46 S.W.(2d) 457. These authorities sustain the contention. However, after a careful examination of these authorities, we find ourselves unable to give to that portion of article 4084 (R. S. 1925), viz. “In all proceedings in garnishment where the defendant gives bond as herein provided for, such defendant may make any defense which the defendant in garnishment could make in such suit,” the construction given by the authorities just cited. To construe that statute to require a defendant to replevy before he can challenge the regularity and sufficiency of a garnishment proceeding would work an undue hardship upon him, and, as we think, miss the intention and purpose of the act. It is easily conceivable that a defendant might be unable financially to give the required replevy bond, either before or at the time of the trial, and the answer of the garnishee • might not fully protect the defendant, yet, because of his inability to give such a bond, he would not, under such construction, be permitted to attack the garnishment proceeding. Further, to so hold, it seems to us, would be in direct conflict with the spirit of the opinion of our Supreme Court in Missouri Pac. Railway Co. v. Whipsker, 77 Tex. 14, 13 S. W. 639, 640 ; 8 L. R. A. 321, 19 Am. St. Rep. 734, wherein Judge Gaines for that court stated that the better practice in such cases was for the garnishee to bring the defendant into the proceeding and thereby shift the burden and responsibility of the litigation to him. It is there said: “In every case of this character, it would be a proper practice for the garnishee, after disclosing the facts which show the exemption, to have the defendant cited, to the end that he should make his own defense. See Iglehart v. Moore, 21 Tex. 501. The parties at interest will then have the burden of the litigation; and upon the trial the garnishee will be entitled to recover his costs, and a reasonable attorney’s fee, for his answer.”

If the foregoing states a sound proposition of law, it would hardly seem that the Legislature intended to trammel the defendant’s right to defend in such a proceeding by making it mandatory on him to give a replevy bond as a prerequisite for so doing. If he be unable to make such bond, why bring him in as suggested? It would be a vain thing to make him a party, shift the responsibility of the litigation to him, and at the same time forbid him to defend until he had done the impossible in his case; that is, execute and give a replevy bond. We do not think the language of the statute, properly construed, has such effect.

There was, no doubt, a time in the jurisprudence of this state, and elsewhere, where it appears that in an attachment proceeding the giving of a replevy bond by the defendant rendered immaterial the question of the validity, or even the existence of the grounds on which the attachment was based, and thus put such considerations at rest. Gould v. Baker, 12 Tex. Civ. App. 669, 35 S. W. 708; Luse v. Ft. Worth Elec., etc., Co. (Tex. Civ. App.) 261 S. W. 163 (6); 6 C. J. p. 338, § 696.

We are therefore inclined to the view that this idea, entertained by members of the legal profession, doubtless inspired the enactment of the statute above quoted, in order to specifically preserve to the defendant in garnishment (which is but a species of attachment) the right to make such defenses, although he has availed himself of the privilege of executing a replevy bond and thereby repossessing his property. Certainly the above-quoted statute is not an express limitation or restriction upon the defendant’s right to traverse the grounds of the garnishment, and, in the absence of an express restriction, the defendant in garnishment is entitled to interpose such defenses as he may have to the garnishment proceedings, or to qssume the defense of the same. Ball v. Bennett, 21 Tex. Civ. App. 399, 52 S. W. 618; 28 C. J. p. 274, § 385; 6 C. J. p. 338, § 696.

In principle, our conclusions here find support in the holding of our Supreme Court in White v. Casey, 25 Tex. 552, which specifically holds that the defendant in the main suit has the right, under said statute, to intervene in the garnishment suit and set up the dormancy of the judgment. See Continental Supply Co. v. Carter (Tex. Civ. App.) 13 S.W. (2d) 927, wherein it is said that the right to defend on the ground of dormancy is not affected by the defendant’s giving or failing to give a replevy bond.

Further, the opinion in Missouri Pac. Railway Co. v. Whipsker, supra, is a specific recognition of the defendant’s right to intervene and set up exemption, and that without regard to his having given or failed to give a replevy bond.

To summarize, we believe that the above-quoted statute, which became a part of the garnishment law of this state on February 9, 1889, was never intended to limit the defendant’s right to attack the garnishment proceedings, but to make clear that, in the event

he replevied the property, he did not thereby waive any of the defenses he theretofore had; that is, instead of limiting the defendant’s defensive rights, the statute preserved them, and specifically removed any doubt of his right to urge certain ones of them in case he replevied the property. The statute was designed to make certain that, in the event the defendant replevies the property, he is not estopped to deny the sufficiency of the grounds of garnishment, the regularity of the proceedings, or to move for a dissolution of the same on proper grounds or for material defects and departures from statutory requirements.

The second proposition is overruled.

The third point made by the plaintiff, appellant here, is that the court erred in sustaining the defendant’s motion to quash the writ and hold the proceedings for naught on the ground that the affidavit for garnishment was false, etc. An examination of. the affidavit discloses that it is in form and substance a substantial compliance with article 4076, R. S. 1925, which prescribes the conditions on which writs of garnishment may issue. Hence the writ was authorized. The validity of a garnishment depends, not upon the truth of the facts stated in the affidavit, but upon the fact that they were so stated. Cawthon v. First State Bank of Salado (Tex. Civ. App.) 193 S. W. 783. In this respect the validity of a garnishment is analogous to attachment. The truth of the affidavit cannot be contested for the purpose of abating the writ. Walden v. Locke (Tex. Civ. App.) 49 S.W.(2d) 832; 5 Tex. Jur. p. 207, § 39. This proposition is sustained.

It is also contended that the court erred in sustaining the motion to quash the writ on the grounds of alleged variance between the allegations of the writ and affidavit on one hand and the petition in the main suit on the other hand. No such question was presented in the motion on which the court acted, and the proposition is overruled. The contention made in the motion was that the affidavit for garnishment was false, and that question has been herein considered.

For the reasons assigned, the judgment of the trial court will be reversed, and the cause remanded.


author: ELY, Chief Justice.

text:
    TEXAS VEGETABLE UNION et al. v. ZAVALA-DIMMITT COUNTIES WATER IMP. DIST. NO. 1.
    No. 9009.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 22, 1933.
    Rehearing Denied March 15, 1933.
    David E. Hume, of Eagle Pass, for plaintiff in error.
    Terrell, Davis, Hall & Clemens, of San Antonio, for defendant in error.
   ELY, Chief Justice.

This is a suit for taxes, for the year 1929, which with penalties and attorney’s fees amounted in the aggregate to. the sum of $2,125.55, and for foreclosure of a tax lien on several tracts of land aggregating 824.26 acres, all in Zavala county. The testimony was heard by a jury, after which a verdict was instructed for appellee for $2,276.25, for taxes, interest, penalty, and attorney’s fees, and a foreclosure of the lien on the land. D. H. Duncan and A. D. Eidson were codefend-ants with the vegetable union, and judgment was rendered against them also. Judgment was by default against D. H. Duncan. The writ of error was prosecuted by the Texas Vegetable Union alone.

The first proposition complains of a personal judgment against the union because the allegations do not show that the union owned the land in 1929. We overrule the proposition. The allegations were sufficient to show that the union owned the land in 1929, and failed to- pay the taxes. This fact was questioned throughout the trial, but the property was treated by all concerned as the property of the vegetable union during the time the taxes accrued. The facts show that the. owner failed to render the taxes for 1929 and they were duly assessed against said union.

The second and third propositions are overruled. The union was fully notified to appear before the board of equalization. The notice of assessment was duly sent to the union and it did not offer any testimony that it did not receive the notice. The law was fully complied with.

The fourth and fifth propositions are totally without merit and are overruled. All the lands on which the vegetable union was sued for taxes were within the boundaries of the district and a part thereof. It would be absurd to hold that the union should nob be held liable for its taxes because a dain erected by it had been washed out.

There is no error in the judgment, and it is affirmed.


author: BLAIR, Justice.

text:
    PREISS v. EDGE.
    No. 7819.
    Court of Civil Appeals of Texas. Austin.
    Feb. 15, 1933.

      J. R. Eucbs, of New Braunfels, for appellant.
   BLAIR, Justice.

Appellee sued appellant, alleging and on tbe trial offered testimony tending to show that by oral contract he agreed to saw certain timber of appellant into lumber of lengths of from 6 to 14 feet, at a price of $25 per thousand feet; that he sawed 23,405 feet of such lumber, for which appellant owed him a balance of $310.10; that appellant owed him $30 for fuel wood which appellant agreed to but did not furnish in the manufacture of the lumber; that appellee could have sawed 25,-000 feet more of lumber from appellant’s timber, but appellant stopped him from completing the contract, thereby depriving him of an alleged profit of $375, but which profit appellee calculated by his testimony to be about $325. In answer appellant alleged and on the trial offered testimony tending to show that by the oral contract appellee agreed to saw as much as possible of the timber into lumber of lengths of 14 feet; that most of the timber was capable of being sawed into lengths of 14 feet, which would have been of greater value than shorter lengths, but that appellee, contrary to his agreement and over the protest of appellant, sawed most of the lumber into lengths of less than 14 feet, that is, he only sawed about 1,700 feet into 14-foot lengths, the balance being sawed into 6, 8, 10, and 12 foot lengths; that appellant agreed to furnish appellee fuel wood from his own land, but that appellee claimed such wood was too green, and hauled some wood from his own land, for which he told appellant he would make no charge; that appellee agreed, if not specifically, by implication of law, to saw the lumber in a good workmanlike manner, but that he failed to do so, and sawed much of it crooked, and sawed about one-half of it out of rotten timber, and did not properly dress the lumber, and did not remove the bark from the edges of much of the lumber, and did not manufacture the lumber in a workmanlike manner; that, because of these breaches of the contract by appellee, appellant stopped him from sawing the balance of his'timber, and therefore owed him nothing for that which he had defectively manufactured, nor for any loss of profits which he may have made if permitted to complete the contract. At the conclusion of the evidence, and over the objection of appellant, the trial court instructed the jury as follows: “You are instructed to return a verdict in this cause in favor of the plaintiff on his cause of action for the sum of $500.00, having credited defendant with $75.00 for 3000 feet of rotten and defective lumber and $30.00 for wood charged.”

Judgment was rendered in accordance with the instructed verdict; hence this appeal.

It is manifest that the evidence was sharply conflicting on all material issues; and the court erred in peremptorily instructing a verdict for appellee. The cause must therefore be reversed and remanded, and we pretermit an expression of any opinion on the evidence. Suffice it to say that the evidence adduced presented jury issues as follows:

(1) With regard to the terms of the contract as to the lengths into which the lumber was to have been sawed. Appellee testified that he was to saw it into lengths of from 6 to 14 feet, without any other limitation. Appellant’s version of the contract was that appellee was to saw as much as possible of the timber into lengths of 14 feet, and his testimony, corroborated by other disinterested witnesses, showed that much more of the lumber could have been sawed into lengths of 14 feet, and that lumber of that length was of greater value than lumber of shorter lengths. Bearing upon this, appellee testified that the lumber was being sawed for the purpose of building fences, and that lengths shorter than 14 feet were better for these purposes. Appellant testified that there was no mention of the purposes for which the lumber was being sawed, but that appellee told him that he could saw nice 14-foot lengths out of most of his timber.

(2) A jury issue was presented as to whether appellee manufactured the lumber in a good workmanlike manner. No specific agreement was made in this regard, except that appellee told appellant he could saw nice lumber in lengths of from 6 to 14 feet out of appellant’s timber, and that he was equipped with mills and had experience in sawing lumber of the character in contemplation. This evidence would at least require appellee to discharge his contract by using ordinary and reasonable skill, care, and diligence to manufacture the lumber in a workmanlike manner. City of Huntsville v. McKay (Tex. Civ. App.) 286 S. W. 305, 306; Baltimore Base Ball Club, etc., Co. v. Pickett, 78 Md. 375, 28 A. 279, 22 L. R. A. 690, 44 Am. St. Rep. 304. The law is also well settled that one who contracts to manufacture a commodity for market, or a given use, or to do particular work, is bound to perform the obligation in good workmanlike manner; and, if he does the work or performs the obligation in an unskillful manner, he can recover nothing if from want of proper skill the work or manufactured commodity proves worthless. Dyess v. Dayey Tree Expert Co. (Tex. Com. App.) 44 S.W.(2d) 911; Wilson v. Jones (Tex. Com. App.) 45 S.W.(2d) 572.

The trial court took all issues from the jury, assumed that 3,000 feet of the lumber was defectively manufactured, or found as a matter of law that it was so manufactured, and instructed the jury to credit the defendant with $75 for 3,000 feet of rotten and defective lumber. Notwithstanding this, the trial court then rendered judgment for $325, loss of profits for 25,000 feet of lumber, which the witnesses merely estimated could have been produced from the balance of appellant’s timber. It is manifest that, if appel-lee was not' manufacturing the lumber in a workmanlike manner, appellant had the right to stop him, and no loss of profits would arise from refusing to permit appellee to continue to manufacture defective lumber.

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

Reversed and remanded.


author: HALL, Chief Justice.

text:
    MAYFIELD v. PARKS.
    No. 3958.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 15, 1933.
    Rehearing Denied March 15, 1933.
    Lackey & Lackey, of Stinnett, and Hoover, Hoover & Cussen, of Canadian, for appellant.
    Works & Bassett, of Amarillo, for appel-lee.
   HALL, Chief Justice.

Mrs. Ella Parks died, leaving the following will:

“Ella Parks wishes at her death my husband to have her property both real estate and personal property and at my husbands death to be equally divided among our children, Hilma, William and Davis and if there should be other children born to us share equally with Hilma, William and Davis.
“[Signed] Ella Parks, Will.”

Mrs. Parks was the second wife of Hiram Parks and had no children of her own. Hiram Parks instituted this proceeding in the county court to probate said will. Probation thereof was contested by her father, J. W. Mayfield, Sr. The county court admitted the will to probate and Mayfield appealed to the district court, where the case was tried upon special issues submitted to a jury. Based upon the answers of the jury, the district court 'also admitted the will to probate, hence the appeal to this court.

The charge of the court defines “mental capacity” and “undue influence.” In response to the issues submitted, the jury found that Ella Parks executed the will offered in evidence as her last will, that it had not been revoked, that she possessed mental capacity (as that term had been defined by the court) to execute the will and at the time of the execution was not acting under undue influence (as that term had been defined by the court) to such an extent as that she was induced to make a different disposition of her property from what she would have made had not such influence been exerted.

The first proposition is to the effect that the will creates a perpetuity in violation of the Constitution, art. 1, § 26. This contention is without merit.

A perpetuity is any limitation tending to take property out of commerce for a longer period than a life or lives in being and twenty-one years beyond and in case of a posthumous child, a few months more allowing for the term of gestation. It is such a limitation of property as renders it inalienable beyond the period allowed by law. Bouvier’s Law Dictionary.

It is defined in Neely v. Brogden (Tex. Com. App.) 239 S. W. 192, 193, as follows: “A perpetuity has been defined as a limitation which tabes the subject-matter of the perpetuity out of commerce for a peiiod of time greater than a life or lives in being, and 21 years thereafter, plus the ordinary period of gestation. In determining whether this period of time is transcended, the situation must be viewed as of the date the instrument becomes effective, that date being, in case of a will, the death of the- testator.”

No children were born to Parbs and his wife. The estate created by the will is a contingent remainder vesting a life estate in Hiram Parbs with remainder to the stepchildren named in the will who would take immediately upon the death of their father. Rae v. Baber (Tex. Civ. App.) 38 S.W.(2d) 366; Munger v. Munger (Tex. Civ. App.) 298 S. W. 470; Neely v. Brogden (Tex. Com. App.) 239 S. W. 192, 214 S. W. 614.

By the second proposition it is insisted that because the deceased did not bequeath any of her property to her kin by consanguinity, although the property had been given her by her father, the contestant herein, this Was a circumstance showing weak mental capacity and undue influence and the court should have so instructed the jury as requested by special charge No. 2. It is further insisted that because the evidence discloses that Hiram Parks was with the testatrix all during her illness, including the date of her death, and by reason thereof had ample opportunity to unduly influence her in her weakened condition to execute an unnatural will, the court should have instructed the jury that they might consider that fact as requested in special issue No. 3. The next contention is that in determining the condition of the mind of testatrix when considering the question of undue influence, the court should have instructed the jury that they might take into consideration whether at the time she executed the will her mind was strong or weak and whether she would be easy or hard to influence.

The appellant presented three special issues which the court refused. These form the basis for the above contentions. A sample • of which is as follows: “You are instructed as a part of the law in this case that in considering the question of undue influence on the testatrix in this will, and as to whether or not said will was procured by the undue influence of the beneficiaries exercised upon said testatrix by said beneficiaries, you may consider as a circumstance the opportunity if any you find from the evidence that said beneficiaries had exercised upon said testatrix undue influence; you are instructed in this connection, however, that an opportunity alone is not sufficient to prove undue influence was procured, but merely as a circumstance in connection with any other evidence if any, to-establish undue influence.”

By the second special charge the jury was instructed in the same way that they might consider as a circumstance in determining her mental capacity the fact that she did not give any of her property to any of her blood kin.

The court did not err in refusing to give these instructions. They singled out certain items of the testimony and emphasized the effect thereof.

R. S. art. 2189, relating to foe .matter of giving special issues, provides: “In submitting special issues the court shall submit such, explanations and definitions of legal terms as shall be necessary to enable the jury to' properly pass upon and render a verdict on such issues.”

In T. & P. Ry. Oo. v. Perkins (Tex. Com. App.) 48 S.W.(2d) 249, 251, which involved’ the right of a servant to recover for injuries received and where the court had submitted an issue as to whether the danger of gravel flying and bouncing when being tamped and shoveled under the ties was so obvious that the injured party, in the exercise of ordinary care, should have known it, he gave this instruction: “To aid you in answering this issue (issue No. 6) * ⅜ * you are instructed that the plaintiff was not required to anticipate the negligence, if any, of Robert. Smith at the time plaintiff received his injuries, but that plaintiff was entitled to rely upon Robert Smith exercising ordinary care-in the manner of discharging his work unless plaintiff had actual knowledge of negligence,, if any, on the part of said Robert Smith, or said negligence, if any, was so open and obvious that in discharging his duties plaintiff' must have known of it and appreciated the danger arising to him therefrom in time to-have avoided the consequences thereof.”

Judge- Sharp said: “It is clear that the special charge given was not an explanation such-as contemplated by the statute, and is not a definition. It is clearly a general charge upon the issue of assumed risk and is improper in a charge where a case is submitted to the-jury upon special issues.”

• In the case of Humble Oil & Refining Co. v. McLean (Tex. Com. App.) 280 S. W. 557, in discussing instructions of this kind, Judge-Harvey, referring to the above quoted statute, said it is obvious from a reading of these statutory provisions that whenever special issues are submitted to the jury, ⅜ charge-which undertakes to instruct the jury as to-the law pertaining to any phase of the case, excepting such explanations and definitions-as are allowed by the statute, is not permissible. Kemper v. Police & Firemen’s Ins. Ass’n (Tex. Com. App.) 48 S.W.(2d) 254; Winters Mutual Aid, etc., v. Reddin (Tex. Com. App.) 49 S.W.(2d) 1095; Radford Gro. Co. v. Andrews (Tex. Com. App.) 15 S.W.(2d) 218; Stokes y. Snyder (Tex. Com. App.) 55 S.W. (2d) 557.

We find no reversible error in the record, and the judgment is affirmed.


author: BOND, Justice. LOONEY, Justice

text:
    MORTEN INV. CO. v. JORDAN.
    No. 11093.
    Court of Civil Appeals of Texas. Dallas.
    Jan. 21, 1933.
    Rehearing Denied March 11, 1933.
    Leake, Henry, Wozencraft & Frank, and Harold H. Young, all of Dallas, for appellant.
    J. L. Lipscomb and McBride, O’Donnell & Hamilton, all of Dallas, for appellee.
   BOND, Justice.

Lucille Jordan, appellee, instituted this suit in a district court of Dallas county, Tex., against appellant, Morten Investment Company, a corporation, owning and operating the Jefferson Hotel in the city of Dallas, to recover damages for injuries alleged to have been sustained by her while she was a paid guest of the hotel.

We refer to the parties as they were designated in the court below.

Plaintiff alleges in her petition that, on the occasion of her injury, she was a guest of the Jefferson Hotel and sustained the injuries as the result of a fall upon and down a dark and dangerous stairway; that she was a student in a play-production school then being conducted by the University Production Company on the thirteenth floor of the hotel, and the room assigned to her by the management of the hotel was on the twelfth floor, being so assigned to her in order that she might be conveniently located to her classroom. The status of innkeeper and paid guest was established between plaintiff and defendant

That defendant maintained, near an elevator, a stairway connecting the twelfth and thirteenth floors. The steps were slick and smooth, without any corrugation, carpets, mats, or anything to insure good footing, and 'that the stairway was steep and winding, without railing, banister, or grip on the right side going down to afford support to any one descending the stairway. The stairway was dark, although equipped for lighting.

That, at or about 7:45 p. m. on August 11, 1930, plaintiff'intended to descend from the thirteenth floor to the twelfth floor to go to her room, and she proceeded by way of the stairway; it being more expeditious to go that way rather than to wait for the elevator. The elevator service had been bad during all of the time she had been a guest at the hotel, and it was customary for the plaintiff, as well as the other guests, to use the stairway to-go to and fro from the twelfth and thirteenth floors. It was quicker to descend by tbe stairway than to wait for tbe elevator.

As sbe entered tbe stairway, tbe lights from the thirteenth floor illuminated tbe finst four or five steps thereof, and plaintiff, believing that tbe entire stairway was then lighted, attempted to descend. It bad always been lighted after dark, but on this occasion tbe lights bad not been turned on. Tbe stairway was dark, except the top steps, and on account of which plaintiff could not see her footing, which was necessary' to descend this stairway; it being very high pitched, slick and smooth, without corrugation, carpets, mats, railing, banister, or grip on the right side on descending.

That by reason of its unlighted condition, its steep pitch, the manner in which the steps were built, the failure to provide a handrail or banister, and the failure to provide corrugation, carpets, or mats to insure good foothold, was negligence on the part of the defendant, and proximately caused her injuries.

Defendant answered by a general demurrer and general denial and special answer, setting out that ample elevator service was provided in said building; that plaintiff well knew that said elevator service was provided and in operation; that notwithstanding the existence of such elevator service, the plaintiff voluntarily elected to descend from the thirteenth floor to the twelfth floor by way of the circular staircase, which was necessarily narrow and steep and not as desirable a • way to descend as was the elevator, all of which was known or should have been known by plaintiff. That the plaintiff was well acquainted with all of the surroundings; ' she had used said staircase a number of times and on repeated occasions prior to her injury; that the stairway was in no respect different at the time of the alleged injury to what it was at the other times the plaintiff had used said stairway and that all of the conditions, claimed by her to have existed in connection with or surrounding the said stairway, were perfectly obvious to the plaintiff, and were well known to her or should have been fully known to her by the exercise of the slightest degree of care. That the.plaintiff voluntarily assumed all of such dangers and the result thereof in descending said stairway. That the plaintiff was guilty of contributory negligence in failing to exercise the care of an ordinarily prudent person for her own safety in making use of said stairway instead of using the elevator service provided for that purpose.

Plaintiff denied defendant’s allegations that the stairway was, at the time of her injury, in no respect different in its condition than it was at other times, as on previous occasions it had been lighted. She denied the assumed risk charge, pleading that she was a guest, to whom defendant owed the duty of furnishing safe premises. Also denied contributory negligence, as alleged by defendant.

Plaintiff’s petition is silent as to any latent defects in the steps or stairway, or as to the manner of their construction or maintenance, (except that the hallway was dark when it should have been light at the time she attempted to descend, thereby and on account of which she tripped, slipped, and fell, resulting in her injuries.

The issues were clearly joined by the pleadings and, at the close of plaintiff’s testimony, defendant presented a motion for instructed verdict, which motion was overruled and the case submitted to a jury on special issues.

The jury found, in response to the special issues, that the plaintiff sustained injuries at the time and on the occasion in question; that, at such time and on such occasion, defendant failed to have the stairway lighted; that such failure was negligence, proximately causing plaintiff’s injury; and found for plaintiff in the sum of $4,100. The jury further found that her injury was not an .unavoidable accident, and that she did not fail to exercise ordinary care for her own safety in using the stairway in its unlighted condition; and that defendant owned and operated the Jefferson Hotel on the occasion of the injury.

At the close of plaintiff’s evidence, and (again at the close of the whole case, the defendant requested the trial court to direct verdict in its favor, which request was denied. It has, in due time and order, perfected an appeal and assigned error. Its proposition under the assignment is; “In a suit by a guest of a hotel against the hotel for injuries received by slipping or falling on steps with which she was familiar, she having walked up and down the steps seven or eight times a day for seven days, the plaintiff’s testimony being that she slipped and fell about the fourth or fifth step, and no showing having been made that there was anything upon the steps that had not been upon them when she previously used the steps, the plaintiff is guilty of contributory negligence as a matter of law and the defendant is entitled to an instructed verdict.”

We approach this assignment with an appreciation of the authorities of many jurisdictions, that a grave doubt exists, under facts as in this case, as to whether plaintiff is guilty of contributory negligence as a matter of law. In our own jurisdiction the courts are uniform in holding that, to make such issue a question of law, the testimony must not only be uncontradicted, but must be so conclusive that reasonable minds cannot differ as to its effect. Stooksbury v. Swan, 85 Tex. 563, 22 S. W. 963.

The substantial testimony in the instant case is that plaintiff, who lives in Lubbock, came to Dallas on August 3,1930, to attend a play-production school, which was located on the thirteenth floor of the Jefferson Hotel, which hotel was owned and operated by defendant. She was assigned to a room on the twelfth floor. Two elevators ran to that floor, and to the thirteenth floor, and the stairway adjoined the elevator shaft. The pitch of the stairway was steep, they were circular or winding, and the steps were wide enough for a footing on the right side going down, but tapered to a point on the left side. There was a railing or banister on the left side, but none on the right side. The circular portion of the stairway began about halfway down, the steps were slick and smooth, the stairway was provided with a light globe for lighting it at night, and that it had always been lighted by the management of the hotel ever since she had been a guest, except on the night of the injury; it was dark and she was led to descend the stairway believing it was light on account of the top steps being illuminated from the lights of the thirteenth floor. She knew the stairway was dangerous and had used them several times each day and some at night while she was a guest of the hotel, tout that they had never been unlighted before the night of the injury; she knew there were elevators available, but their service was bad and it was more expeditious to use the stairway than the elevator; it was quicker. Other guests used the stairway, rather than use the elevators. Officials and clerks of the hotel frequently saw other student guests of the school use the stairs and made no objections and gave no warning not to use them. On the night of the injury, in descending the stairway, plaintiff tripped, slipped, and fell headlong down the stairway, and sustained injury. There was some evidence that on one step, about where plaintiff tripped, slipped, and fell, was a latent defect — the metal .band around the edge of the step protruded above the level, or smooth portion of the step.

The jury having settled the issues raised by the pleadings and supported by evidence, that defendant was guilty of actionable ¡negligence and that plaintiff exercised ordinary care for her own safety, in using the stairway in its unlighted condition at the time and on the occasion in question, we cannot say, as a matter of law, that when plaintiff approached the stairway and started to descend, seeing the first few steps lighted, but continuing her journey after she started and had gone two or three steps, she was guilty of negligence per se. When she entered the stairway, she had a right to assume that the hotel keeper had performed its duty in keeping the dangerous stairway, as she termed it, in a reasonably safe condition and lighted. Unless the verdict is palpably against the weight of all the evidence, or where manifest injustice has been done, we cannot say that the court erred in refusing to give an instructed verdict.

In the case of Burnison v. Souders, 225 Mo. App. 1159, 35 S.W.(2d) 619, 624, in discussing the defense of contributory negligence, as a matter of law, the court said: “However, the fact that she knew of the defect does not convict her of contributory negligence, as a matter of law. As far as that question is concerned she could use the stairs, provided she exercised that care which a reasonably prudent person would exercise under like or similar circumstances, and it was for the jury to say, in this case, whether such care was exercised.”

In the case of Ritter v. Norman, 71 Wash. 563, 129 P. 103, 104, 43 L. R. A. (N. S.) 657, it was held that a guest does not, as a matter of law, assume the risk of injury in using a dark stairway provided for the use of the guests, and the hotel guest had the right to depend on the stairway provided for her use, even though it was dark. The opinion states: “Obviously it cannot be so held in the absence of facts affirmatively showing carelessness on the part of the injured person. There is such a thing as reasonable care in the use of dark stairways.”

The fact that she .used the stairway, with all of its attending imperfections, conditions, and dangers, some of which she knew about and others she did not know, some were obvious and others latent, when she started to descend, instead of waiting for the elevator service, which service was bad, was a question of fact for the determination of the jury.

We now come to a serious question in this record, properly raised in the court below and presented in appellant’s assignments, which we feel justifies a reversal of this case, and cause same to be remanded for a new trial.

Defendant, in its pleading, raised the issue that plaintiff was guilty of contributory negligence in using the stairway with all of its attending circumstances and conditions, which were known to plaintiff, rather than the safe and convenient elevators provided for the hotel guests. Other than the issue of contributory negligence as a matter of law, this issue was the only one raised by the defendant. Defendant having presented to the trial court special issues covered by its pleadings and supported by the evidence, we feel that the court erred in refusing to submit to the jury the issues requested.

The issues requested by defendant and refused by the court, on which defendant assigns error, are as follows:

“(1) Did the plaintiff fail to exercise the care of a reasonably prudent person in using the circular staircase, instead of the elevator, to go from the thirteenth floor to the twelfth floor of the Jefferson Hotel under the circumstances and conditions as they existed at the staircase just prior to and at the time of the plaintiff’s alleged injury?
“(2) Did tie failure of the plaintiff to exercise the care of a reasonably prudent person in the use of the circular staircase, instead of the elevator, to descend from the thirteenth to the 'twelfth floor proximately contribute to the occurrence of her injury?”

The jury, in answer to these questions, had they been submitted, could have reasonably found from the evidence that the plaintiff failed to exercise the care of a reasonably prudent person, in using the circular stairway instead of the elevators, under the circumstances and conditions of the stairway. What were the circumstances and conditions of the stairway of which the plaintiff knew at the time she attempted to descend same? The evidence shows that plaintiff knew that the stairway was dangerous, that it was steep and circular, and without banisters, and that the steps were slick and smooth, without corrugation, rugs, or mats; she knew these conditions at the time she tripped, slipped, and fell, and these conditions, coupled with the fact that it was unlighted, and had latent defects, of which she was not aware at the time she started to descend, might have caused the jury to determine, if they had been permitted to answer the questions, that plaintiff was guilty of negligence in using the stairway, instead of the elevators, and that such use caused or contributed to the cause of her injury.

The court only submitted the issue of plaintiff’s contributory negligence in using the stairway in its unlighted condition. Its use in an unlighted condition is not all of the contributory causes pleaded by defendant and raised by the evidence. It had a right to have plaintiff’s use of the stairway at the time of the injury with all of the conditions surrounding it, instead of using the elevators, submitted to the jury as being contributory negligence. The jury could have found plaintiff guilty of negligence in using the stairway in all of its dangerous conditions, instead of the elevators. The defendant had 'the right to have his defense determined by a jury verdict. The jury, in answer to questions, answered only that the plaintiff was not guilty of negligence in using the stairway in an unlighted condition. The unlighted condition of the stairway was an evidentiary circumstance for a jury to determine whether the plaintiff was guilty of negligence in using the stairway, and the unlighted condition, together with all of the other evidentiary facts of the surroundings and conditions of the stairway, would be for the jury to determine whether plaintiff was guilty of negligence in using the' stairway instead of the elevator.

In the case of M., K. & T. Ry. Co. v. McGlamory, 89 Tex. 635, 35 S. W. 1058,1059, and reaffirmed by our Supreme Court in the ease of Fox v. Dallas Hotel Co., 111 Tex. 461, 240 S. W. 517, in discussing the rights of defendant to have its defense of contributory negligence submitted on acts alleged and proven, the court said: “Defendants had the right to prepare and demand the giving of a charge requiring the jury to find whether the evidence established the existence of any specified group of facts which, if true, would in law establish such plea. ■ * * * This rule does not permit a litigant to annoy the court or confuse the jury by special charges upon the weight of, or giving prominence to, each circumstance introduced fending to support his cause of action or defense, but requires him, at his peril, to present in such special charge, for the consideration of the jury, a fact or group of facts which, if found by them, from the evidence, to be true, establishes, in law, some material issue presented by the pleading.”

There are other assignments of error which we have considered in our conclusion of this appeal, but as they will likely not occur on another trial, same are overruled. For the error in the court below, in failing to give plaintiff’s special issues above requested, this cause is reversed and remanded.

Reversed and remanded.

LOONEY, Justice

(dissenting on rehearing).

In view of the pleadings and proof, not necessary to be stated here, actionable negligence, whether or not, on the part of defendant, was in its failure to have the staircase properly lighted on the occasion in question, the issue being narrowed, and submitted by the court to the jury, as follows: “Special Issue No. 2: Do you find from a preponderance of the evidence that at the time and on the occasion in question the defendant failed to have the stairway in question lighted?” (Followed by' the complementary issues as to whether such failure was ■ negligence and a proximate cause.)

The question of plaintiff’s contributory negligence, whether or not, was narrowed and submitted as follows: “Special Issue No. 7: Do you find from a preponderance of the evidence that plaintiff, at the time and on the occasion in question, failed to exercise ordinary care for her own safety in using the stairway in its unlighted condition?” .(Followed by the complementary issue as to whether such failure, if it existed, proximately caused or contributed to plaintiff’s injury.)

These issues were answered by the jury in favor of plaintiff, and I 'think the findings comprehended all dependent, incidental, and evidentiary matters, including the facts involved in the issue, the refusal of which, in the opinion of the majority, constituted reversible error. The requested and refused issue reads: “Did the plaintiff fail to exercise the care of a reasonably prudent person in using the circular staircase instead of the elevator to go from the thirteenth floor to the twelfth floor of 'the Jefferson Hotel, under the circumstances and conditions as they existed at the staircase just prior to and at tire time of the plaintiff’s alleged injury?” (This was followed by the complementary issue as to whether the use by plaintiff of the staircase, instead of the elevator, proximately contributed to her injury.)

Whether or not plaintiff was negligent in using the stairway instead of the elevator was, in my opinion, one of the evidentiary issues incident to the question submitted, that . is, whether she was guilty, under all the circumstances, of attempting to use the staircase in its unlighted condition, and the jury having acquitted plaintiff of contributory negligence, in this respect, I do not think it can be logically contended that she was guilty of negligence, defeating her cause, by preferring and using the stairway rather than the elevator service. Not being guilty of contributory negligence, in using the stairway, as the jury found she was not, negligence, defeating her right to recover, could not be implied, because she probably failed to choose the safer route. If the issue requested had been submitted and found for defendant, such an answer, in view of the other findings, could only mean that in the opinion of the jury, the elevator furnished a safer passage, and not that plaintiff was guilty of negligence, defeating her cause, by using the stairway rather than the elevator.

Eor these reasons, I think the court erred in reversing and remanding the cause; therefore,,! am of opinion that appellee’s motion for rehearing should have been granted, that the judgment of this court reversing and remanding the cause should have been set aside, and that the judgment of the trial court should have been affirmed.


author: BOND, Justice.

text:
    GREAT AMERICAN INDEMNITY CO. v. ESSARY.
    No. 11414.
    Court of Civil Appeals of Texas. Dallas.
    Feb. 4, 1933.
    Rehearing Denied March 11, 1933.
    Turner, Rodgers & Winn, of Dallas, for appellant.
    Coffman & Coffman, of Dallas, for appel-lee.
   BOND, Justice.

This suit arises out of a workmen’s compensation proceeding. Appellee, J. J. Es-sary, filed his claim for compensation before the Industrial Accident Board for injuries alleged to have been received by him while engaged in the employment of the Southland Ice Company of the city of Dallas. The Industrial Accident Board awarded appellee compensation. Not being satisfied with the award, appellee in due order filed this suit in a district court of Dallas county, against appellant, alleging all necessary causal and jurisdictional facts to confer jurisdiction upon said court. The appellant entered a general demurrer and a general denial.

The case was tried before a jury, and, on findings favorable to appellee, the court entered judgment in his favor. - Appellant has duly appealed, and presents the record for review on the sole proposition that the court should have sustained its motion for an instructed verdict, that there was no evidence by which the trial court, nor this court, could determine or form any conclusion as to whether or not appellee was injured in Dallas county.

Article 8307, § 5, R. S. 1925, as amended by Acts 1931, c. 224, § 1 (Vernon’s Ann. Oiv. St. art. 8307, § 5), provides that one desiring to set aside an award of the Industrial Accident Board shall “bring suit in the county where the injury occurred.” It is incumbent upon the party, who is not willing and does not consent to abide by the final ruling and decision of said board, to not only allege in his petition the county where the injury occurred, but to offer proof from which the trial court can find that such injury occurred in the county where the suit was instituted,, or facts from which such venue might be inferred. Every intendment of the statute should be upheld to carry out the beneficent purposes of the Workmen's Compensation Laws of Texas. The purpose of the venue, is evident. Such suits necessarily involve the fact of the accident, the issues of the injury, and the wages of the claimant. Thus such suits brought in the county of the injury save expense, trouble, and delay incidental to trials. Mingus v. Wadley, 115 Tex. 551, 285 S. W. 1084.

Courts are not authorized to take judicial knowledge that a certain place is in a city, or that a city is in a certain county, but courts can determine or infer from a reasonable interpretation of the testimony in a case that such place.is in the city, and the city is in the county, and, if the particular city is a county seat, courts are authorized to take judicial knowledge that such city is in the county. Petroleum Casualty Co. v. Crow (Tex. Civ. App.) 16 S.W.(2d) 917, and authorities therein cited.

In the case at bar, there is evidence that Oak Cliff is in the city of Dallas, and the court takes judicial knowledge that said city is the county seat of Dallas county. The record further discloses that all of the witnesses to the fact of the accident, and the issue of the injury, reside in Dallas. The employer’s residence is in Dallas; the hospital to which appellee was taken after the accident is in Dallas; the injured party lives in Dallas, and worked in Dallas, passing his home several times a day in a truck delivering ice to substations in Dallas. The witness W. C. Davis, when asked the location of the place where the injury occurred, stated it was “2120 West Davis Street,” and made such statement immediately after testifying that he lived in Oak Cliff, and that Oak Cliff is in the city of Dallas. The record further shows that, immediately following the injury, appellee’s employer, Southland Ice Company, sent a Dallas ambulance and a Dallas doctor to administer to the injured man.

Can it be reasonably concluded from Mr. Davis’ testimony that “2120 West Davis Street” is in Oak Cliff, that' Oak Cliff is in the city of Dallas, and that appellee was injured in Dallas county? We think so. While courts will not presume that a fact necessary to be proven does exist, certainly courts are required to give a reasonable interpretation to an evident intent and purpose of the lingo of witnesses when made in the trial of causes. We infer from the witness’ testimony, together with the entire record, that but one conclusion can be reached, that is, that the accident and injury occurred in the city of Dallas, which this court judicially knows is in Dallas county.

We conclude that the judgment of the trial court should be affirmed.

Affirmed.