author: McCDENDON, C. J.

text:
    HANEY et al. v. TEMPLE TRUST CO.
    No. 7806.
    Court of Civil Appeals of Texas. Austin.
    Nov. 30, 1932.
    Rehearing Granted in Part and in Part Overruled Dec. 21, 1932.
    See, also, 55 S.W.(2d) 895.
    Dibrell & Starnes, of Coleman, for appellants.
    Jno. B. Daniel, of Temple, and Critz & Woodward, of Coleman, for appellee.
   McCDENDON, C. J.

This cause is companion tc* cause No. 7804 (Tex. Civ. App.) 55 S.W.(2d) 891, this day decided; with these differences:

The notes here sued on and sought to be canceled by reason of alleged usurious interest were executed by Moore who later conveyed the land encumbered by the trust deed lien to Haney, by deed containing the following clause: “And the further consideration that the said W. E. Haney hereby assumes and agrees to pay off and discharge the indebtedness held against the hereinafter described property by Temple Trust Company, said indebtedness being in the principal sum of $2,000.00 and for a full description of said indebtedness reference is here made to the deed of trust records of Coleman County, Texas, and same is made part hereof.”

Appellee contends that the defense of usury is not available to Haney because of his assumption of the mortgage debt, citing: Bowman v. Bailey (Tex. Civ. App.) 2031 S. W. 922 (writ refused); People’s Building & Loan Ass’n v. Sellars, 19 Tex. Civ. App. 201, 46 S. W. 370; Southern Home B. & L. Ass’n v. Winans, 24 Tex. Civ. App. 544, 60 S. W. 825; Vaughn v. Mutual Bldg. Ass’n (Tex. Civ. App.) 36 S. W. 1013; North Tex. Bldg. & Loan Ass’n v. Hay, 23 Tex. Civ. App. 98, 56 S. W. 580 (writ refused); Caldwell v. Commercial Bank of Waynoka, 80 Okl. 118, 194 P. 899; 39 Cyc. 998, Note 69, Col. 2.

Appellants contend that the general rule announced by these authorities is not applicable here for two reasons: (1) Because usury appeared upon the face of the instruments evidencing the debt and lien; and (2) because the assumption was only of the legal debt owing, and did not extend to the usurious interest.

In support of this latter proposition, appellants cite: National Loan & Investment Co. v. Stone (Tex. Civ. App.) 46 S. W. 67; 27 R. C. L. 289, § 90, p. 288, § 89, pp. 291, 292, § 92; Maloney v. Eaheart, 81 Tex. 281, 16 S. W. 1030; North Texas Bldg. & L. Ass’n v. Hay, 23 Tex. Civ. App. 98, 56 S. W. 580; Southern Home B. & Loan Ass’n v. Winans, 24 Tex. Civ. App. 544, 60 S. W. 825, 826; Bowman v. Bailey (Tex. Civ. App.) 203 S. W. 922; Johnston v. Lasker Real Estate Ass’n, 2 Tex. Civ. App. 494, 21 S. W. 961; People’s Building & Loan Ass’n v. Sellars, 19 Tex. Civ. App. 201, 46 S. W. 370.

In the Winans Case it is held that the general rule invoked by appellee applies where the purchaser of the security, as part of the consideration, “promised absolutely to pay the full amount of the usurious debt.”

In 27 R. C. L., p. 289, it is said: “Before a vendee will be estopped from setting up usury in a mortgage on his property, on the ground that he assumed its payment the assumption must be made clearly to appear. Ambiguous and doubtful statements will not suffice. Thus an agreement by a vendee of real estate to pay the balance on a mortgage existing on the lands he purchased, will be construed to mean what is legally due on the mortgage, and therefore will not cover usurious exactments. Likewise under a stipulation to pay the balance due on the debt, the purchaser is bound to pay only the balance legally due. The same is true of an agreement to pay ‘all legal amounts due.’ ”

The issue tendered by the wording of the assumption agreement presents, we think, a bona fide justiciable controversy, to determine which the Coleman county court clearly acquired jurisdiction. We do not think there is any substantial difference between' questions of law and questions of fact in determining whether one court has acquired jurisdiction of a cause to the exclusion of another. This particular point has not been briefed by either party; and the investigation we have been able to give it has not disclosed any authority bearing directly upon it. But the principles announced in Cleveland v. Ward, 116 Tex. 1, 285 S. W. 1063, we think are applicable.

The rule which makes the jurisdiction first acquired exclusive is referred to by Chief Justice Stay ton in Texas Trunk Ry. Co. v. Lewis, 81 Tex. 1, 8, 16 S. W. 647, 648, 26 Am. St. Rep. 776, as one of “manifest propriety, if not necessity,” and its purpose is stated by the late Chief Justice Key of this court in Phillips v. Phillips, 223 S. W. 243, 244, to be that “of maintaining orderly procedure, and that spirit of comity which should exist between tribunals of equal jurisdiction.”

Differences upon question of law could as readily arise between judges of different courts of co-ordinate jurisdiction, as upon other issues. And such differences could produce the same impasse in the administration of justice as was presented in Cleveland v. Ward.

If appellants’ suit in Coleman county were predicated upon issues which were frivolous or lacking in bona fides, a different question would be presented.

Without expressing any opinion upon the merits of appellants’. above contentions, we hold that the suit at bar was abated by the pendency of the Coleman county suit

The trial court’s judgment is reversed, and the cause is abated and dismissed without prejudice.

Reversed and cause abated and dismissed.

On Appellee’s Motion for Rehearing.

Eor the reasons stated in the opinion on rehearing this day filed in cause No. 7804 (Tex. Civ. App.) 55 S.W.(2d) 891, our former judgment is modified so as hereafter to read:

The trial court’s judgment is reversed, and the cause is abated and remanded to the trial court with instructions to retain it suspended upon the docket until the Coleman county suit is determined, and thereupon to proceed in accordance with the final result of that suit. In all other respects the motion for rehearing is overruled.

Granted in part and in part overruled.


source: Caselaw Access Project

author: McClendon, c. j.

license: Public Domain

text:
    HANEY et al. v. TEMPLE TRUST CO.
    No. 7808.
    Court of Civil Appeals of Texas. Austin.
    Nov. 30, 1932.
    Rehearing Denied Dec. 21, 1932.
    Dibrell & Starnes, of Coleman, for appel- ' lants.
    Jno. B. Daniel, of Temple, and Critz & Woodward, of Coleman, for appellee.
   McClendon, c. j.

This cause is companion to causes Nos. 7804 (Tex. Civ. App.) 55 S.W.(2d) 891, and 7806 (Tex. Civ. App.) 55 S.W.(2d) 894, of the same style this day decided; with these differences:

The notes and trust deed in suit were executed by Haney and wife in favor of the trust company in renewal of notes secured by mechanic’s lien originally in favor of Manning and by him indorsed to the trust company. Before any payments were made on the notes Haney and wife conveyed the encumbered property to Ranney who assumed the debt. Thereafter Ranney and wife recon-veyed the property to Haney by deed reciting: “The. grantee herein assumes the payment of taxes, and the indebtedness due Temple Trust Company.”

The terms of the assumption by Ranney are not shown by the record, and we cannot therefore say that a bona fide justiciable controversy is not presented.

Ranney was not made a party to the Coleman county suit, and appellee urges the non-identity of parties in the two causes on that account.

Ranney, by virtue of the subsequent assumption by Haney, was only secondarily liable on the notes, and the Coleman county suit might have proceeded to final judgment without making him a party, either plaintiff or defendant. ⅞ which event the judgment would be res adjudicata if in his favor but not binding against him. Eastland County v. Davisson (Tex. Com. App.) 13 S.W. (2d) 673. The failure to make Ranney a party would not affect the jurisdiction of the Coleman county court over the subject-matter and over the parties before the court. The right to amend and bring in other interested proper parties inhered in all parties to the suit. These conclusions, we think, necessarily follow from the paraphrased quotations from Cleveland v. Ward, 116 Tex. 1, 285 S. W. 1063, in our opinion in cause No. 7804.

The above holdings require a remand of the cause to determine whether the Ranney assumption presents a bona fide justiciable controversy.

The cause would have to be reversed in any event upon the pleadings. The judgment awarded recovery for the entire unpaid balance of all the notes, amounting to $2,448.20, whereas the prayer of plaintiff’s petition asked for judgment upon only three specified items aggregating $333. See Texas Power Corpn. v. Kuehler (Tex. Com. App.) 52 S.W.(2d) 76.

The trial court’s judgment is reversed and the cause remanded.

Reversed and remanded.


author: HADD, C. J.

text:
    BANKERS LLOYDS v. ANDRESS.
    No. 3928.
    Court of Civil Appeals of Texas. Amarillo.
    Dec. 14, 1932.
    Rehearing Denied Jan. 4, 1933.
    Crate Dalton and J. W. Hassell, both of Dallas, for appellant.
    Smith & Smith, of Anson, for appellee.
   HADD, C. J.

Appellee Andress sued in the district court to set aside the award of the Industrial Accident Board rendered October 11, 1930, and entered nunc pro tunc October 24,1930, which refused him compensation claimed by him for injuries which he sustained on or about August 30, 1928, while an employee of T. S. Rbss, who he alleges held a policy of insurance issued by the appellant, Bankers Lloyds.

The case was submitted to the jury, who found, in response to special issues, as follows: (1) That Andress did on or about the 30th day of August, 1928, suffer injuries to his eyes - while engaged in the furtherance of the business of his employer, T. S. Ross, and while working on the Baptist Church building in the town of Hamlin; (2) that such injuries resulted in the total loss of the sight of both of his eyes; (3) that the injuries suffered by him resulted in the permanent loss of the sight of both eyes; (4) that Andress did not within six months from August 30, 1928, make.application to the Industrial Accident Board for compensation; (5) that he had good cause for not filing a claim for compensation with the board within said time; (6) that he gave notice to his employer Ross or his foreman within thirty days that he had received an injury on or about August 30, 1928; (7) that he was not guilty of unreasonable delay in filing his claim for compensation with the board; (8) that his average weekly wage, prior to the day of his injury, was $18; (9) that it would not work a hardship or injustice upon plaintiff if compensation was paid him in weekly installments.

Erom a judgment entered in favor of Andress in the sum of $1,241.61, with 6 per cent, interest, awarding $7.20 per week for 242 weeks, this appeal is prosecuted.

It appears from the record that on October 11, 1930, the Industrial Accident Board entered an order and referred therein to his injuries as affecting his knee and shin. The claim was for injuries to his eyes. On October 24th, the award was amended nunc pro tunc making necessary correction in the description of the injuries sustained by him. He gave notice to the board on November 10, 1930, of his unwillingness to abide by the final ruling and decision.

The appellant’s first contention is that the order of October 11th is the final ruling, and that, because notice of his unwillingness to abide by the judgment of the board was not given until the 10th day of November, or more than twenty days after the first order, the trial court had no jurisdiction. This contention is without merit. Revised Civil Statutes, art. 8307, § 5, provides that such notice shall be given within twenty days after the board’s “final ruling and decision” has been rendered. The order of October 11th was a nullity because it was not supported by either pleading or evidence. Being fatally defective, it was amended and corrected by the final order entered on October 24th and the twenty days in which plaintiff was required to give notice commenced to run from that date.

By proposition No. 2 it is contended that, because Andress continued to work for Ross until he was discharged because his services were no longer needed and because his injuries did not develop for several months thereafter, the court should have instructed a verdict for the defendant.

While mixing mortar with a hoe on or about August 10th, some of the mixture was thrown into one of appellee’s eyes. He consulted a physician, who said that his eye was badly irritated. He worked about two weeks after that time and during that two weeks was scraping plaster from a wall with a steel brush. He testified that the dust and mortar from the walls got into both of his eyes while his left eye was already inflamed as a result of getting mortar in it the first time. The condition of his eyes continued to grow worse, which resulted in total blindness, as found by the jury. . The first issue submitted to the jury is not subject to the criticism we find in the brief. There was no such specific objection to this issue made in the trial court as is required by the statute but in the light of the record the contention is without merit. The court was not required to submit the occurrence on August 10th and the injuries resulting from the subsequent work separately. As said by this court in Texas Employers’ Ins. Ass’n v. Wonderley, 16 S.W.(2d) 386, 389: “By injury is meant the state of facts or the con7 dition which first entitles the claimant to compensation. In this case the injury did not develop until more than 2 weeks after the accident and the claimant suffered no loss of his earning capacity until that time.”

Total incapacity in the instant ease did not result until the plaintiff lost the sight of both eyes. It is clearly shown by the evidence, and the jury so found, that this resulted from a combination of the accidents and conditions complained of. They further found that he had good cause for not filing his claim within six months from August 30, 1928, and this finding is supported by the evidence. Fidelity Union Casualty Co. v. Koonee (Tex. Civ. App.) 51 S.W.(2d) 777.

That Andress continued to work after getting the mortar in one of his eyes and drew his wages regularly until he was discharged would not have warranted the court in directing a verdict for appellant in view of the fact that the doctor who treated his eye for the first injury expected him to recover from the effects within a few days.

By four of the five propositions appellant insists that the court should have given a peremptory instruction in its favor. We have carefully reviewed the record and in view of conflicting testimony and circumstances we think the court acted properly in submitting the case to the jury upon special issues.

Believing that a proper judgment has been rendered, it is affirmed.


author: LOONEY, J.

text:
    HOME INS. CO. v. COLLINS.
    No. 11081.
    Court of Civil Appeals of Texas. Dallas.
    Nov. 26, 1932.
    Rehearing Denied Jan. 14, 1933.
    Thompson, Knight, Baker & Harris, of Dallas, for appellant.
    Clint & Eades, of Dallas, for appellee.
   LOONEY, J.

Judgment was rendered in favor of Alice Collins against the Home Insurance Company on its fire policy for $1,500, upon a one-story house belonging to appellee, containing a mortgage clause in favor of P. P. Martinez, beneficiary in a trust deed against the property. The jury found, with ample evidence to sustain the finding (which we adopt as our conclusion of fact on that issue), that the building was totally destroyed by fire on December 11, 1929, and, as the policy became a liquidated demand, the judgment rendered was justified and should be affirmed, unless reversible error is presented py the assignments.

Appellant contends that the court erred in, refusing to direct a verdict in its favor, because of the existence of unpermitted concurrent insurance. The facts, in short, are these: After the issuance of the policy sued upon, P. P. Martinez, mortgagee, procured from Central Federal Fire Insurance Company a policy of $1,250, additional insurance. The policy in suit contains the usual forfeiture provisions for unpermitted insurance. With reference to this matter, we adopt from appellant’s brief tbe following statement, to wit: “At tbe time of tbe agreed statement of facts Alice Collins bad not filed suit against the Central Federal Eire Insurance Company. Alice Collins did not actually know or have any actual knowledge of tbe issuance of tbe policy in tbe sum of $1,250.00 by tbe Central Federal Fire Insurance Company. She never expressly authorized tbe issuance of tbe policy, and did not know or learn that same bad been issued until after the fire, unless same was authorized by the deed of trust mentioned. This policy was applied for by P. P. Martinez, the mortgagee, and procured and obtained by him when be felt that more insurance was needed on tbe property. Alice Collins was charged with the premium on the Central Federal Fire Insurance Company policy in the amount of $22.15, which sum had theretofore been paid to the Agent of the Central Federal Fire Insurance Company by P. P. Martinez, and the notes which were executed and secured by the deed of trust dated November 1, 1929, included said premium of $22.50 on said Central Federal Fire Insurance Company policy, which has been heretofore attached, but Alice Collins did not actually know that fact. The mortgagee, P. P. Martinez, filed a disclaimer. The proof of loss which was filed as against the Central Federal Fire Insurance Company makes a claim against that company for $1,250.00, and is dated March 7, 1930, and she filed proof of loss against Tire Home Insurance Company claiming $1,500.-00. * * * ”

It is well understood that insurance is avoided where insured, in violation of a provision of the policy, procures unpermit-ted concurrent insurance on the property (Home Ins. Co. v. Boatner (Tex. Civ. App.) 218 8. W. 1097; Id. (Tex. Com. App.) 239 S. W. 928, and authorities cited); but it is equally well settled that insurance issued at the instance of another, without the knowledge, consent, or ratification of the owner, will not avoid existing insurance. See Commonwealth Ins. Co. v. Evans (Tex. Civ. App.) 42 S.W.(2d) 1088, and authorities cited. It is contended, however, that under the provisions of the deed of trust, Martinez was authorized to take out additional insurance, that the same was binding upon appellee, constituted unpermitted concurrent insurance; hence avoided the policy in suit.

The pertinent provisions of the deed of trust are these: “But should the parties of the first part make default in the punctual payment of said indebtedness, or any part thereof, principal or interest as the same shall become due and payable, or fail to pay as the same shall become due and payable, all taxes and special assessments, either State, County, Municipal or otherwise, chargeable to or assessed against or hereafter chargeable to or assessed against the hereinbefore described property, * ⅜ * or fail to keep at all times the improvements on said property insured against fire, tornado and hail in favor of any holder of the indebtedness hereby secured (who shall hold the policies of insurance) in the full insurable value of such improvements in solvent and reputable insurance companies acceptable to the holder of said indebtedness, * * ⅜ then and in such case, the whole amount of said indebtedness hereby secured remaining unpaid may at the option of the party of the third part, or other holder thereof, immediately mature ’and become payable. * * * Any holder of any part of the indebtedness hereby secured shall have the option of paying taxes and insurance premiums hereunder, and in such event the sums so expended shall operate as a lien on the real property herein described and,be secured hereby.”

We do not think these provisions authorized Martinez to take out additional insurance binding upon appellee; but even if such authority can be found in the quoted provisions, it could not have been exercised without demand being made on insured for additional insurance, and default on her part. No such showing is revealed by the record. See Commonwealth Ins. Co. v. Evans (Tex. Civ. App.) 42 S.W.(2d) 1088, 1090, and authorities cited; also annotations under Gould v. Maine, etc., Co., L. R. A. 1917A pages 607, 609, where the doctrine is announced that, “Although the mortgage contains a provision authorizing the mortgagee to protect his interest by insuring in case the mortgagor fails to do so, the mortgagee’s act in procuring insurance will not avoid a policy held by the mortgagor where there has been no default on the latter’s part in protecting the mortgagee by insurance, and fie has no knowledge that the mortgagee has taken out a policy.”

Appellant contends further, that even if the provisions of the trust deed did not authorize Martinez to take out additional insurance, binding upon appellee, nevertheless, he had the right as lienholder to procure the insurance, and as the insured, after loss, made proof and urged claim against the Central Federal Fire Insurance Company, she thereby ratified the act of Martinez, adopted the same as her own,, and thus the policy became unpermitted insurance and avoided the policy in suit.

The pertinent facts are these: After the loss, appellee made proof of same to Central Federal Fire Insurance Company under the $1,250 policy procured by Martinez, which, however, was rejected by the company, and at the time of trial had not been sued upon by appellee.

We cannot adopt appellant’s view; the object of the provision by which unpermitted concurrent insurance works a forfeiture is to prevent the moral hazard that would unquestionably arise from, the existence of excessive insurance; but as the insured was not aware of the existence of the Martinez policy until after the fire, the moral hazard was not increased, the reason for the stipulation against other insurance ceased, and the rights of the parties became definitely fixed.- We therefore overrule the contention that, by making proof of loss, appellee ratified the act of Martinez and adopted the additional insurance as her own. See Allemania, etc., Co. v. Fordtran (Tex. Civ. App.) 128 S. W. 692; Nelson et al. v. Atlanta, etc., Co., 120 N. C. 302, 27 S. E. 38; Cowart v. Capital, etc., Co., 114 Ala. 356, 22 So. 574; May on Ins. § 365c; also annotations under Gnat v. Ins. Co., L. R. A. 1918D page 783.

Appellant urges several assignments, complaining of the action of the court in permitting witnesses to testify over its objections, as shown below. Appellee introduced several witnesses, who, after qualifying as experts, testified, without objection, that after the fire they inspected the remains of the building, described the parts left standing and the condition of the material not consumed, and thereupon were asked and answered the questions objected to; that is, they were permitted to say that, in their opinion, the property was a total loss, that it was not practicable, to repair the building, that it had lost its identity as such; and one witness was permitted to say that, if uninsured and called upon to reconstruct the building, he would not use or utilize any of the material left, but would give it to some one to clear off the lot. The objections urged were that the answers are but the conclusions of the witnesses, and invaded the province of the jury.

As a general rule, courts will, as far as possible, exclude the inference, conclusion, or judgment of a witness as to the ultimate fact in issue, 22 O. J. p. 502 (sec. 597) 3; but the rule is by no means absolute, for when such testimony is admitted over objection, abuse of discretion and injurious results to the objecting party must be shown, Ibid. p. 514 (sec. 601) 4, as “it frequently occurs that the only possible or practicable method of making proof of the fact in issue is by means of opinion evidence.” Ibid. p. 504; M. K. & T. Ry. Co. v. Steele, 50 Tex. Civ. App. 634, 110 S. W. 171, 174; McCabe v. San Antonio, etc., Co.. 39 Tex. Civ. App. 614, 88 S. W. 387; St. Louis & S. F. R. Co. v. Smith (Tex. Civ. App. writ denied) 90 S. W. 926, 929.

It was shown that, from previous training and experience, these witnesses were skilled contractors, builders, etc.; therefore were competent to testify, and we think were correctly permitted to express opinions in regard to ,the subjects of inquiry, although their answers assumed facts in controversy, and in this sense invaded the province of the jury. In I. & G. N. Ry. Co. v. Mills (writ denied) 34 Tex. Civ. App. 127, 78 S. W. 11, 12, Judge Fly used the following language in point: “ * ⅜ * In order to obtain a certain opinion from an expert, it is absolutely essential to assume the existence of the facts necessary to elicit the opinion; and, in order that the opinion should prove of any value, it should be the very one that it is desired the jury should form. * * ⅜ ” Also see St. L. & S. F. R. Co. v. Smith (Tex. Civ. App.) 99 S. W. 926, 929; Galveston, H. & H. R. Co. v. Bohan (Tex. Civ. App.) 47 S. W. 1050, 1052, 1053. Particularly is this the rule where, as in the instant ease, the experts testified from observed facts. See 11 R. C. L. p. 577 § 9; Joske v. Pleasants (writ denied) 15 Tex. Civ. App. 433, 39 S. W. 586, 589; Stark v. Harry (writ denied) 57 Tex. Civ. App. 529, 122 S. W. 947, 950; St. Louis, A. & T. Ry. Co. v. Johnston, 78 Tex. 536, 540,15 S. W. 104; Schaefer v. Ely, 84 Conn. 501, 80 A. 775, 779, Ann. Cas. 1912D, 899; Bankers Lloyds v. Montgomery (Tex. Civ. App.) 42 S.W.(2d) 285, 286. We are of opinion, therefore, that the court did not err in admitting the testimony over appellant’s objection.

However, if it be conceded that the court did err in this respect, the judgment should not be reversed for that reason, because the record is replete with evidence, admitted without objection, that justified the finding that the property was a total loss. See Hart v. Harrell (Tex. Civ. App.) 17 S.W. (2d) 1093; Seay v. Fennell (writ denied) 15 Tex. Civ. App. 261, 39 S. W. 181, 183; St. L. & S. F. R. Co. v. Smith (Tex. Civ. App.) 90 S. W. 926, 929; Head v. Texas St. Bank (Tex. Civ. App.) 16 S.W.(2d) 298, 301; Fain v. Fain (Tex. Civ. App.) 6 S.W.(2d) 403, 407, 408; International Travelers’ Ass’n v. Bettis (Tex. Civ. App.) 3 S.W.(2d) 478, 481; Baker v. Farmers’, etc., Union (Tex. Civ. App.) 3 S.W.(2d) 155, 157.

In harmony with these views, we affirm the judgment of the court below.

Affirmed.


author: PLEASANTS, C. J.

text:
    HOUSTON GAS & FUEL CO. v. PERRY et al.
    No. 9756.
    Court of Civil Appeals of Texas. Galveston.
    Nov. 17, 1932.
    Rehearing Denied Dec. 1, 1932.
    Vinson, Elkins, Sweeton & Weems, of Hous•ton, for appellant,
    Bryan, Cosby, Suhr & Bering and Chas. W. Bell, all of Houston, for appellees.
   PLEASANTS, C. J.

This suit was brought by appellee Mrs. Perry, for herself and as next friend of her minor daughter, Daisy Perry, and also for the use and benefit of Veva Perry Capsas, Orliss Monroe Perry, Daniel H. Perry, and the Hartford Accident & Indemnity Company, against the appellant, Houston Gas & Fuel Company, to recover damages for the death of D. N. Perry, the husband of Mrs. Perry and the father of the individual plaintiffs, which it is alleged was caused by the negligence of appellant.

The petition alleges: “That the death of D. N. Perry resulted from injuries sustained in a natural gas explosion in the basement of the Stewart Building in Houston, Texas; and at the time of his injuries he was an employee of Hermann Hospital Estate, a subscriber to the Texas Workmen’s Compensation Act, and that said subscriber carried compensation insurance with the defendant Hartford Accident & Indemnity Company. That the insurance company assumed full liability for compensation and agreed to pay appellee Mrs. D. N. Perry and her minor daughter, Daisy Perry, full compensation in the sum of Seventy-two Hundred Dollars ($7200.00), pursuant to the Texas Workmen’s Compensation Act.”

It was further alleged that the Hartford Accident & Indemnity Company had refused to bring this suit pursuant to section 6a, article 8307, of the Workmen’s Compensation Act (Rev. St. 1925) and that therefore it was made a party defendant to the said suit. By the pleadings, the right of the defendant Hartford Accident & Indemnity Company was fully recognized hy the appellee Mrs. D. N. Perry to he subrogated to the extent of $7,200, the fixed compensation under the Workmen’s Compensation Act.

No pleadings were filed hy the defendant Hartford Accident & Indemnity Company, though it had been duly served with citation.

Plaintiff alleges that about three hours pri- or to the explosion, which resulted in the death of her husband, the boiler situated in the boiler room in the basement of the building adjoining the locker room in which deceased kept his clothes had been fired, and that when the deceased opened the door to enter the locker for his clothes the explosion of gas or gases which accumulated in the locker room occurred.

It was further alleged that the room and apartment of the basement of the Stewart building where Perry kept his clothes, and in which the explosion occurred, contained a large iron pipe approximately two or three inches in diameter, by which was transmitted, from the main service line or lines of the gas company into said building the supply of natural gas necessary to furnish service to said building; that this large iron pipe enters the westerly wall of said room approximately two or three feet beneath the level of the sidewalk and paving. That such pipe was installed by the gas company, and at the point where the pipe entered the west wall of the ■room there was a large joint or elbow; that in installing the pipe which led to the gas meter within the building the gas company made an aperture or opening in the cement wall, but after such pipe had been installed it failed and neglected to close this aperture, but, on the contrary, left a large opening, thus enabling any gas which might be leaking from the mains, located from eight to ten feet westerly in the street, to escape through and enter said room where the deceased was trying to go at the time of the explosion. That five or six feet west of the place where the large pipe enters the westerly wall of such room, the defendant gas company had a large manhole, which was approximately three or four feet west of the manhole owned 'by the Stewart building, and the space between the two manholes at the time of the explosion was not .filled, but was practically vacant so that gas could easily percolate from or around one .manhole to and around the other manhole, and thus escape into said building. That three or four years prior to the explosion the .owners of the Stewart building abandoned the 'use of oil for the operation of its boiler, and began to use natural gas, and that at this time the gas company placed in Fannin street and the vicinity of the street another gas high-pressure line, so that larger quantities of gas could be furnished the Stewart building and other customers needing a larger quantity of gas than they had formerly been using.

That at all of said times the gas company had in Fannin street another gas line approximately five to ten feet west of the sidewalk on the eastern side of Fannin street, known as the low-pressure line. That this low-pressure line was built some twenty-five or thirty years before the explosion, and much of the pipe was twenty-five years old, worn out, and had many leaks and holes therein, through which natural gas could easily escape and percolate to the room in which the explosion occurred.

The specific acts of negligence alleged were: (a) Failure to cement or stop up hole at point where large gas pipe entered the basement; (b) failure in installation of gas pipe to close opening or vacant space underneath ground through which natural gas might percolate in the direction of the locker room; (c) failure tQ put some chemical substance into its gas to give it a strong odor; (d) failure to provide adequate and efficient pipes, but, on the contrary, used old worn out pipes that were full of holes; (e) failure to inspect its pipes; (f) failure to replace old pipes with new ones; and (g) failure to so install large pipes in the Stewart building as to prevent the escape of gas into the basement.

As an alternative cause of action, the plaintiffs alleged that the gas lines and mains were under the sole custody, control, and supervision of appellant, and for that reason they could not state the exact negligent acts which caused the accumulation of the gas in the locker room.

Appellant filed a general demurrer, general denial, and general plea of contributory negligence.

At the close of the plaintiffs’ testimony the appellant offered no testimony, but rested its case and filed motion for instructed verdict, which was overruled.

The case was submitted to the jury on special issues, and in response thereto the jury found; (a) That the explosion was caused by natural gas which leaked from the defendant’s gas pipe; (b) that the leakage was due to the negligence of the appellant; (c) that such negligence was a proximate cause of the death of D. N. Perry; (d) that the defendant at the time it installed the four-inch gas line in the ¡Stewart building failed to install same so as to prevent the entrance of gas from. its mains in the street into the basement of the building; (e) that such failure was negligence; (f) that such negligence was a proximate cause of the death of D. N. Perry; '(g) that appellant failed to replace the pipes in its gas lines in the vicinity of the Stewart building, so as to prevent the escape of gas therefrom; (h) that such failure was negligence; (i) that such negligence was a proximate cause of the death of D. N. Perry; (3) that the explosion was not the result of fumes from a fuel oil tank in the locker room; (k) that the explosion was not caused from a combination of fumes from the fuel oil tank, paint, varnish, and oil in the locker room; (1) that Mrs. D. N. Perry had been damaged in the sum of $8,000; (m) that Daisy Perry, minor, had been damaged in the sum of $5,000; (n) that the reasonable funeral expenses was the sum of $200.

Judgment was rendered upon these findings for plaintiffs, Mrs. Perry and her minor daughter, Daisy. Judgment was also rendered in favor of the Hartford Accident & Indemnity Company for the sum' of $1,313.50, the amount shown by the evidence to have been expended by it for doctors’, nurses’, and hospital fees paid by it for the treatment and care of deceased from the time of his injury until his death. The judgment further provided for subrogation in favor of said company to the extent of $7,200 out of the $13,200 awarded the plaintiffs Mrs. Perry and her minor child, Daisy. It was further adjudged that other plaintiffs for whom Mrs. Perry sued take nothing against appellant. All costs of suit were adjudged against appellant.

The foregoing statement of the nature and result of the suit is largely copied from appellant’s brief.

Under its first and second assignments of error appellant complains of the judgment on the grounds that the court erred in. not instructing a verdict for the defendant, because there was no evidence to raise an issue of negligence in permitting gas to escape from its pipes into the Stewart building and thereby proximately causing the explosion which resulted in the death of the deceased; and that the court further erred in refusing to set aside the verdict of the jury finding the defendant negligent in the respect stated, because the evidence was insufficient to sustain such finding.

We think the evidence clearly raises the issue of negligence on the part of appellant in the installment of its gas pipe by which gas was conducted into the locker room, and in the care and maintenance of its gas line pipes and manholes by and through which gas from its street pipes was carried to the Stewart building, and that such negligence was the proximate cause of the explosion which caused the death of Perry. We are also of opinion that the finding of the jury on this issue is not so against the weight and preponderance of the evidence as to authorize this court to set it aside.

The evidence shows that the Stewart building had been equipped with gas service for the past twenty-five years, but had only used gas as fuel for about three years, prior to which time oil had been so used. When the change in fuel was made from oil to gas, the appellant, which owned the gas distributihg lines by which the building was served, installed the fuel gas piping and appliances in the basement of the building up to the boiler. The pipe that furnished the fuel for the boiler was a high-pressure pipe, and came into the building through the locker room, five or six feet distant from the point at which the original low-pressure gas pipe, which supplied the gas used in the building for lighting purposes, entered the basement of the building.

The deceased, who was employed by the owner of the building as building mechanic, kept his working clothes and tools in the locker room. When he came to work on the morning of the explosion he passed through the boiler room to the locker room to change his clothes, and as he opened the door from the locker room into the boiler room the explosion occurred. There was no evidence of any leakage of any of the gas pipes inside of the building, but, on the contrary, these pipes are shown to have been in good condition.

The evidence does show that the gas pipes in the street in front of the building and those leading into the building other than the high-pressure pipe taking the gas' to the boiler were old, having been in use for twenty-five years or more, and some of them were worn and cracked, and that the manhole through which some of the old pipes ran was oirly a few feet distant from the manhole through which the high-pressure pipe ran, and that there were openings under the ground between these manholes through which gas escaping from the old low-pressure lines could find its way into the manhole for the high-pressure line and along the outside of the pipe leading therefrom through the opening in the basement wall through which the pipe entered the building. It was also shown that two gas explosions had occurred near the Stewart building a short time prior to the explosion which caused Perry’s death; one in the street near the building, and one in an adjoining building. None of the pipes inside the building were injured by the explosion, but a witness who arrived on the scene shortly after the explosion testified that there was burning gas in the manhole and along the pipe leading therefrom.

All of the distributing gas lines in the street and outside of the building and the manholes through which they ran were in the exclusive possession and control of the appellant company, and it offered no evidence as to the condition of these lines and manholes at the time of the explosion.

It is clear, we think, that the jury could reasonably infer from this evidence that the explosion was caused by gas which escaped from defective pipes of appellant from and by which it was carried into the building, and following the lines of least resistance got into the locker room through the openings in the wall of tlie building left by appellant when it installed the high-pressure fuel line. The fact that appellant had exclusive possession of all these pipes and gas distributing appliances and must or should have had information as to their .condition, and yet remlainect silent on this subject, adds to the probative force of the other facts in evidence which clearly raise an issue as to the defective condition of appellant’s gas pipes. In this state of the evidence we cannot hold that the findings of the jury complained of in these assignments are not sustained by the evidence. The force of all these facts and circumstances is not overcome 'by the evidence introduced by appellant, which shows there was a fuel oil tank in the locker room which contained oil that had remained in the tank ever since the change of fuel from oil to gas was made some three years prior to this explosion, and that fumes from this oil and from paint and varnish, which was also kept in the locker, .could have caused the explosion. There was no evidence that these possible fumes had accumulated in the locker room at any time prior to the explosion, and the jury were fully justified, under the evidence as a. whole, in finding as they did, that gas escaping from appellant’s defective pipes was the proximate cause of the explosion, and that fumes from the oil, paint, and varnish in the locker room did not cause or contribute thereto. Fakes & Co. v. Ft. Worth Gas Co. (Tex. Civ. App.) 280 S. W. 234; Caddo Gas Co. v. Jeffries (Tex. Civ. App.) 271 S. W. 108, 109.

The rule in this character of case is ■well settled, and is thus clearly stated by Judge Sharp of the Commission of Appeals in the case of Gulf, C. & S. F. Railway Company v. Dunman, 27 S.W.(2d) 116, 118, 72 A. L. R. 90: “When the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary ■ course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence- of explanation by the defendant, that the accident arose from want of care.”

While it appears to us to have been unnecessary, appellees’ petition, as we have before shown, pleaded the facts upon which this rule is based, and thereby put the appellant upon notice that they intended to invoke the application of the rule.

There is no merit in appellant’s complaint that the form of submission of issues 3, 7, 8, and 9 was duplicitous, in that these issues were not confined to defects in the piping of the high-pressure line, and there was no evidence showing any defective piping in the low-pressure line.

As we have already stated, the rule is that when the explosion is shown to have been caused by gas from pipes and appliances •under the exclusive control of the appellant, the burden shifted to it to show its freedom from negligence (28 Corpus Juris, page 600), and the plaintiffs were not required to show in what particulars the negligence existed; but, as we have before stated, we think there is ample evidence to sustain the finding that the gas escaped from defective pipes in the low-pressure line.

We find no error in the form of submission of any of the issues of negligence submitted to the jury, and none of appellant’s assignments presenting such complaint can be sustained.

There was no error in the failure of the court to limit the right of recovery of the minor, Daisy, to what she would have received from her father during her minority. The case of Hines v. Walker (Tex. Civ. App.) 225 S. W. 837, cited by appellant in support of this ground of complaint, arose under the Federal Employers’ Liability Act (45 USCA §§ 51-59) and the court in deciding the question on appeal was constrained to follow the opinion of the United States Supreme Court, but stated in its opinion that it was perhaps the settled law of this state that the amount of recovery of a minor was not limited to what might be received from the father during the minority of the plaintiff.

• It is the settled rule-in this state that a minor is not restricted in eases of this kind to recovery for what the father would have contributed to the minor during minority, but is entitled to recover what the evidence shows the minor might reasonably expect to receive from the father 'both before and after the termination of minority. The question is one of fact rather than law. Lancaster v. Magrill (Tex. Civ. App.) 244 S. W. 1078; Paris & G. N. Railway Company v. Robinson (Tex. Civ. App.) 127 S. W. 294; Galveston, H. & S. A. Railway Company v. Puente, 30 Tex. Civ. App. 246, 70 S. W. 362.

No point is made by the appellant that the evidence in this case is not sufficient to sustain the verdict of the jury in favor of the minor for the sum of $5,000. It is contended, however, that there is no evidence to raise an issue of contributions by the father to the minor after she reached her majority.

We think the evidence does raise the issue óf such contributions. It was shown that the deceased was a man of frugal habits; in good health and had steady employment; that his earnings averaged $40 per week, out of which he contributed $30 to his wife and minor daughter, who was fourteen years of age at the time of her father’s death; that the minor who was attending day school often visited her father at his place of work and knew more about his earnings than her mother; that she went to see her father while he was at the hospital as soon as she got out of school; that the father took the best care of the daughter, and. was liberal and generous with her at all times.

We do not think the evidence raises the issue of contributory negligence of the deceased, and the court did not err in refusing to submit such issue.

The trial court did not err in refusing to sustain appellant’s objections to the testimony of witness for appellee, that in excavations made by the appellant near the Stewart building shortly after the explosion some of the gas piping dug up by it was old, leaky, and had holes and splits or cracks therein.

The rule against admitting in evidence as proof of negligence the fact that the defendant made improvements or changes in the premises or instrumentalities alleged to have been negligently constructed or maintained does not prohibit direct testimony showing that the defendant when it made such changes or improvements disclosed that prior thereto the premises or instrumentalities were negligently maintained.

We cannot agree with appellant’s contention that no judgment could be properly rendered for the Hartford Accident & Indemnity Company, because that company has filed no pleading asking any recovery against appellant, and appellees allege in their petition that this company had acknowledged and assumed to pay its full obligation under it's indemnity policy executed in favor of the employer of the deceased under the provisions of the Workmen’s Compensation Act, and had refused to bring this suit against appellant. Article 8307, § 6a, of the Workmen’s Compensation Statute (Revised Statutes 1925), gives the right to the insurance company to bé sub-rogated to the beneficiaries’ right against a negligent third party to the extent of its payment under its policy. In recognition of this right of the insurance company, appellee’s petition asks that the Hartford Company be so subrogated to the extent of its assumed liability to the beneficiaries of the policy for whom appellee brings the suit, and further asks that appellee recover for the use and benefit of the Hartford Company the amount of doctors’, nurses’, and hospital fees paid by the Hartford Company under its policy for care and treatment of the deceased. It is agreed by the parties that the amount of such fees is incorrectly stated in the judgment; the correct amount being $803.50, instead of $1,313.50. With this correction, no question •is raised as to the reasonableness of the charges, nor their payment by the insurance company under its policy contract.

In this state of the record we can see no sound reason for not permitting the recovery by appellee for the use and benefit of the insurance company of the amount of these fees, and permitting the subrogation of the insurance company to the damages which the evidence shows the appellees to have sustained by the death of the deceased through the negligence of the appellant, to the extent of the company’s admitted liability to plaintiffs for such damages. If appellee had not brought the suit for the benefit of thé Hartford Oom-‘ pany as well as for the other plaintiffs, that company, having been served with citation as a party defendant, could have set up these' claims of subrogation and recovered judgment therefor. When it found, however, that ap-pellee’s petition recognized its rights and sought their enforcement, we can see no reason for denying it the right to acquiesce in appellee’s suing for. its benefit asking for such judgment of subrogation as the facts would show should be rendered for it. In this situation the Hartford 'Company was not 'required to file a pleading in its own name asking the enforcement of its right of sub-rogation.

The words “pecuniary loss” are words of common use, and have no' such special technical or legal meaning as used in the charge of the court, which required the court to define their meaning to the jury. Our courts have gone a long way in requiring the court to define words used in the charge to the jury. If these words as used in this charge require a definition, it seems to us it could only be upon the assumption that the knowledge of the jury of our language does not extend beyond the words used in our first or second school readers, and we think it would be unreasonable to assume such illiteracy on the part of any jury.

If we have failed to point out and discuss any of the numerous complaints presented in appellant’s brief, all of them have been duly considered, and none of them can be sustained.

Under the agreement of the parties, however, our former judgment of affirmance must be set aside, and the judgment of the trial court reformed by changing the amount of recovery for the doctors’, nurses’, and hospital fees from $1,313.50 to $803.50. We will also reform the judgment and make it fully conform with the pleadings by decreeing the recovery of $803.50 to the appellees for the use and benefit of the Hartford Accident & Indemnity Company. This reformation will not be at the cost of appellees, since appellant did not in its motion for new trial call this error to the attention of the trial court.

As so reformed, the judgment is affirmed."

Reformed and affirmed.


author: JACKSON, J.

text:
    EUBANKS et al. v. SCHWALBE et al.
    No. 3921.
    Court of Civil Appeals of Texas. Amarillo.
    Dec. 14, 1932.
    Rehearing Denied Jan. 11, 1933.
    Levens, McWhorter & Howard, Lockhart & Brown, and Tom Garrard, all of Lubbock, for appellants.
    Bean & IClett, of Lubbock, and Touchstone, Wight, Gormley & Price, of Dallas, for appellee H. L. Schwalbe.
    Bledsoe, Crenshaw & Dupree, of Lubbock, and Seay, Seay, Malone & Lipscomb, of Dallas, for appellee United States Fidelity & Guaranty Co.
    Terry, Cavin & Mills, of Galveston, Madden, Adkins, Pipkin & Keffer, of Amarillo, and Wilson, Randal & Kilpatrick, of Lubbock, for appellee Panhandle & Santa Fé Ry. Co.
   JACKSON, J.

.This suit was instituted by the appellants, the surviving wife, minor daughter, and parents of. Fletcher S. Eubanks, deceased, for whose injuries and death they sought to recover damages against H. L. Schwalbe, doing business under the assumed name of Interstate Contracting Company, and the two corporations, the United States Fidelity & Guaranty Company and the Panhandle & Santa Fé Railway Co.

The court sustained a general demurrer to the cause of action alleged against each of the defendants, the case was dismissed, and such action of the court is here for review.

There is no question about the allegations of the relation of the appellants to the deceased, their dependency and damages, if their petition alleges a cause of action against the defendants for the injuries and death of the deceased.

The appellants alleged:

That on or about March 16, 1931, H. L. Schwalbe contracted with the state of Texas to pave and otherwise improve that part of state highway No. 9 extending north from the city of Lubbock to the line of Hale and Lubbock counties, a distance of approximately twenty miles. That such part of said highway was east of the railroad of the Panhandle & Santa Fé Railway Company, and, at a point about six miles from Lubbock, was originally located adjacent to the east line of the right of way of said railroad and as so located continued through the town of Monroe, which is about eleven miles from Lubbock.

That the plan for the improvements required the route of the old highway to be changed so as to pass under the railroad about six miles north of Lubbock and continue on the west side thereof through the town of Monroe. That the state highway department, by agreement with the railway authorities, made an excavation under the railroad property, which, when completed, was to constitute an underpass through which the improved highway would pass under the railroad. That such excavation was about fourteen feet deep, with perpendicular banks, and about thirty feet in width, and extended directly across the old highway, and there was no barrier across the road and no warning light or signal to give notice of danger. That some one had constructed a detour which left the old highway about one hundred feet north of the excavation and passed to the east and re-entered said highway south of the excavation, but there was no barrier or warning to apprise a traveler at night that such detour existed or that there was an excavation across the road, but, on the contrary, those working upon the excavation had been driving their automobiles over the old road from the intersection of the detour to the excavation, giving the road the appearance of a traveled highway, and constituting an invitation to travelers to proceed thereon.

That on April 9, 1931, about 11 o’clock at night, Eleteher S. Eubanks, while traveling along the old highway toward the town of Lubbock, asi he had a right to do, drove his automobile into said excavation, receiving injuries which resulted in his death. That, prior to the time of the accident resulting in the death of Fletcher S. Eubanks, the defendant H. L. Schwalbe, under his contract with the state highway department, took active charge and control of the right of way for the highway between the town of Lubbock and the line of Lubbock and Hale counties, which included the excavation under the tracks of the railway company and the approaches thereto where the accident occurred, and began preparing the right of way for the paving, including the laying of water lines and other necessary work on the premises. That prior to and after the time H. L. Schwalbe assumed active charge and control of the right of way, including the excavation, the highway between Lubbock and Monroe was not closed, but was kept open for public travel, and large numbers of vehicles were operated over such road both day and night, all of which was well known to H. L. Schwalbe, his agents, and employees, or by the exercise of ordinary care and prudence would have been known to him and his employees. That, when H. L. Schwalbe assumed active control of the road, including the excavation in question, it became his duty to erect and maintain on the highway, and in front of said excavations, suitable and sufficient barriers, lights, and warning signs to apprise the deceased and the traveling public of the excavation and the danger thereof. That H. L. Schwalbe, his agents and employees, knowing of such dangerous situation, negligently and carelessly failed to erect or maintain any light, barrier, or warning signs whatever across such highway, and negligently permitted the old highway to remain open at said excavation and such negligence and carelessness was the proximate cause of the injury and death of Fletcher S. Eubanks.

That, in addition to the duties above alleged, H. L. Schwalbe, by his contract with the state, promised and agreed to erect and maintain sufficient barriers, lights, warnings and signs in front of such excavations to warn the traveling public of the danger thereof. ■

These allegations, in our opinion, are sufficient to authorize appellants to maintain their suit against H. L. Schwalbe under the provisions of article 4671, R. O. S., which states that an action for actual damages on account of the injuries causing the death of any person may be brought “when an injury causing the death of any person is caused by the wrongful act, neglect, carelessness, unskillfulness, or default of another person.”

Article 5525, R. O. S., as'amended by Acts 1927, c. 239, § 1 (Vernon’s Ann. Civ. St. art. 5525), provides, in effect, that, in case of death, a cause of action shall survive to and in favor of the heirs and legal representatives of the injured party and against the person or persons liable for such injuries and his or their legal representatives, and may be instituted and prosecuted as if such person in whose favor the cause of action arose were still living.

“There are wrongs which will maintain an action on the case, known to the common-law pleading, committed in the nonobservance of duties which are but the implication of contract obligation. Wherever there is carelessness, want of reasonable skill, or the violation or disregard of duty which the law implies from the conditions or atténdant circumstances, and individual injury results therefrom, an action in tort lies in favor of the party injured. If the transaction had its origin in a contract which places the parties in such relation as that in performing or attempting to perform the service promised the wrong is committed, then the breach of the contract is not the gravamen of the action. There may be no technical breach of the letter of the contract; the contract in such case is a mere inducement and should be so pleaded. It induces, causes, creates the conditions or state of things which furnishes the occasion for the wrong.” Pecos & N. T. Ry. Co. v. Amarillo Street Railway Co. (Tex. Civ. App,) 171 S. W. 1103, 1105.

The Supreme Court of Alabama, in Thaggard v. Vafes, 218 Ala. 609, 119 So. 647, 649, says: “While the authorities are agreed that a mere breach of contract is not a wrongful or negligent act, within the meaning of the statutes giving a right of action for wrongfully causing death, yet they are also agreed that the negligent or tortious breach of a duty to. the person whose death is caused thereby is within the statute, though such duty arises out of contract. Peck v. Henderson, 218 Ala. 233, 118 So. 262; 17 C. J. 1204, § 54; Blackburn’s Adm’r v. Curd, 106 S. W. 1186, 32 Ky. Law Rep. 789; Randolph’s Adm’r v. Snyder, 139 Ky. 159, 129 S. W. 562; 38 Cyc. 426; Dice’s Adm’r v. Zweigart’s Adm’r, 161 Ky. 646, 171 S. W. 195, L. R. A. 1916E, 1155.”

The Supreme Court of Missouri, in Braun v. Riel, 40 S.W.(2d) 621, 623, 80 A. L. R. 875, says: “It is well settled that, while a ‘tort’ is a wrong done independent of contract, there are torts committed in the nonobservance of contract duties. And if a tort arising out of nonobservance of such duties results in a death, a surviving person entitled to sue may avail himself of the Wrongful Death Statute.’’

A contractor doing construction work on a public highway under a contract with the highway commission is required to exercise ordinary care to protect travelers who are rightfully using the highway, and is guilty of actionable negligence for failing to give warnings of dangers which result in injury to such traveler. Overstreet v. McClelland (Tex. Civ. App.) 13 S.W.(2d) 990, and authorities cited. See, also, T. J. Mansfield Construction Co. v. Gorsline (Tex. Com. App.) 288 S. W. 1067 ; 29 C. J. 678.

In our opinion, the court erred in sustaining the general demurrer of H. L. Schwal-be to plaintiffs’ petition.

The appellants pleaded certain provisions of the contract between the state of .Texas and H. L. Schwalbe and the bond given by the United States Fidelity & Guaranty Company, the effect thereof, and attáched to and made a part of their petition copies of such contract, bond, proposals, plans, and specifications for the construction of the new highway.

The contract, among other things, provides:

“Public Safety and Convenience. The safety of the public and the convenience of traffic shall be regarded as of prime importance during construction. The Department will maintain independent detours as shown on plans and the Contractor will not be responsible for the maintenance and direction of traffic thereon. In all other respects public safety and convenience, and provisions therefor made necessary by the work, shall be the direct responsibility of the Contractor. * * *
“Only such portions of the highway shall be closed to traffic as may be directed by the Engineer. The Contractor shall not close to traffic any bridge or culvert or any portion of a highway until an adequate detour has been constructed, Department standard barricades erected, and Department standard ‘Road Closed’ and ‘Detour’ signs placed. * * ⅜
“Barricades and Danger, Warning and Detour Signs. When any section of highway is closed to traffic the Contractor shall furnish and maintain at each end of the closed section, and at all intersecting roads within the section, Department standard barricades, adequate warning and directing, signs, red lights and red flags. All lights shall be kept burning from sunset to sunrise. * * *
“Responsibility for Damage Claims. The contractor shall save harmless the State from all suits, actions or claims brought on account of any injuries or damages sustained by any person or property in consequence of any neglect in safeguarding the work by the contractor.”

The plans attached to the petition of appellants do not show any “independent detour” at the place of the accident to be maintained by the department.

The bond executed to the state by H. L. Schwalbe and the United States Fidelity & Guaranty Company is as follows:

“Know all men by these presents, That we, Interstate Contracting Company, of Yoakum, Lavaca County, and State of Texas, as Principal, and United States Fidelity & Guaranty Co. of Baltimore, Md., as surety, are held and firmly bound unto the State of Texas, represented by the State Highway Engineer, in the penal sum of Three-Hundred-Forty- Five-Thousand- Eight- Hundred- Forty-Eight & 16/109 Dollars ($345,848.16), lawful money of the United States, to be paid to said State of Texas, for which sums of money, well and truly to be paid, we bind ourselves, our heirs, successors, executors and administrators, jointly and severally, firmly by these presents.
“Sealed with our seals and dated this 14th day of March, A. D., 1931.
“The condition of this obligation is such that if the said bounded principal, Interstate Contracting Co., shall in all things well and truly perform all the terms and conditions of the foregoing contract, to be by them (him) performed, and within the time therein mentioned, and shall pay all lawful claims for labor performed, and material furnished in and about the construction of said road and shall have paid and discharged all liabilities for injuries which have been incurred in and about the said construction, under the operation of the statutes of the State, then this obligation is to be void; otherwise to be and remain in full force and virtue.
“Interstate Contracting Co.
“H. L. Schwalbe, Owner.
“United States Fidelity & Guaranty Co.
“By Chas. M. Daley,
“Attorney in Fact, Surety.”

The appellants alleged that, under the terms and conditions of the contract and bond and the failure of the defendant Schwalbe to perform the duties imposed on him by his contract with the state of Texas, the United States Fidelity & Guaranty Company is bound and liable to appellants for the damages they sustained by reason of the injuries and death of Fletcher S. Eubanks.

The state, acting through its highway commission, in contracting with H. L. Schwalbe, provided for the safety of. the public by expressly stipulating that public safety should be of prime importance, and that the contractor should be directly responsible therefor ; that he should not close the highway to traffic .until an adequate detour had been constructed and department standard barricades erected, department standard “road closed” and “detour” signs placed at all intersecting roads of the closed section; that lights should be kept burning from sunset to sunrise, and he should save harmless the state from all actions or claims brought on account of any injuries or damages sustained by any person in consequence of any neglect in safeguarding the work.

The bond of the United' States Fidelity & Guaranty Company is conditioned that the contractor shall in all things well -and truly perform all terms and conditions of the contract, and shall pay and discharge all liabilities which have been incurred by the contractor in and about said construction. This bond is more onerous than required by statute, but this would not defeat the liability of the United States Fidelity & Guaranty Co.

In Shade v. Anderson et al. (Tex. Civ. App.) 36 S.W.(2d) 1041, 1042, the court holds: “The •bond was more onerous than that provided by the statute, in that one of the obligations embodied in it was that the principal Would discharge ‘all liabilities for injuries which have been incurred' in and about the said construction.’ However, that fact would not of itself be sufficient to enable the defendants to escape liability, if, as shown in the record, it was executed voluntarily by the defendants, and if it was otherwise valid as a common-law obligation. Watkins v. Minter, 107 Tex. 428, 180 S. W. 227; Sullivan v. City of Galveston (Tex. Civ. App.) 17 S.W.(2d) 478; 5 Cyc. pp. 751, 752.”

The contract between the state and H. L. Schwalbe having been, in effect, made a part of the bond, the contract and bond must be construed together. 50 C. J. 77.

The petition alleges that H. L. Schwal-be, for the purpose of paving and otherwise improving, was in active charge and control of a certain portion of the highway, including the excavation where the accident occurred. The contract required him to place barricades, lights, and signs to warn those using the highway of dangerous conditions arising by reason of the construction of the improvements. The faithful performance of the contract required a compliance with such provisions. .The surety on the bond guaranteed that its principal, the contractor, should faithfully perform the terms and conditions of the contract and pay all liabilities for injuries incurred in and about the construction. Appellants allege that H. L. Schwalbe negligently failed and refused to perform such duties imposed upon him in the contract, and that such failure occasioned the injuries and death of Fletcher E. Eubanks and the damages sustained by them.

The appellants were authorized to maintain their suit against H. L. Schwalbe for their damages on account >of his negligence and against the United States Fidelity & Guaranty Company on its liability on the bond.

“The rule has often been announced in Texas that when two causes of action are connected with each other, or grow out of the same transaction, they may be properly joined, and in such suit all parties against' whom the plaintiff asserts a common or an alternative liability may be joined as defendants. Clegg v. Varnell, 18 Tex. 294; Love v. Keowne, 58 Tex. 191; Jones v. Ford, 60 Tex. 127; National Bank v. Texas Investment Co., 74 Tex. 421, 12 S. W. 101; Mathonican v. Scott, 87 Tex. 396, 28 S. W. 1063.” American Automobile Ins. Co. v. Struwe (Tex. Civ. App.) 218 S. W. 534, 535. See, also, Wilson v. Place (Tex. Civ. App.) 293 S. W. 322; Southern Casualty Co. v. Freeman (Tex. Com. App.) 24 S.W.(2d) 370.

The appellants’ petition sufficiently alleges a cause of action against the United States Fidelity & Guaranty Company, and the court erred in sustaining its general demurrer.

The appellants’ allegations show that the state highway department, by agreement with the railway authorities, made an excavation under the railroad property, and that the work performed by the employees of said railway company was on the railroad right of. way, and that the accident did not occur thereon. They fail to allege any duty devolving upon the railway company that would constitute actionable negligence because it did not erect barricades and place signs to warn the traveling public of the danger. The court correctly sustained the general demurrer urged by the railway company.

The judgment of the trial court sustaining the general demurrer of the railway company is affirmed, and the judgment sustaining the demurrers of H. L. Schwalbe ánd the United States Fidelity & Guaranty Company is reversed, and the cause as to them remanded.


author: HIGGINS, J.

text:
    COFFEE et al. v. BLAIR.
    No. 2756.
    Court of Civil Appeals of Texas. El Paso.
    Dec. 9, 1932.
    Rehearing Denied Jan. 5, 1933.
    E. O. Northcutt, of Amarillo, and Eekford & McMahon, of Dallas, for appellants.
    C. C. Huff, G. H. Penland, and Pope & Irion, all of Dallas, for appellee.
   HIGGINS, J.

This is a suit by Glenn Coffee and W. G. Word against Wiley Blair to recover a- broker’s commission for services alleged to have been rendered in effecting the sale of a ranch owned by Blair to the W. T. Waggoner estate, of Fort Worth.

At the conclusion of the plaintiff’s evidence, the defendant moved for an instructed verdict, which was granted.

Briefly stated, the evidence shows: Coffee is a real estate broker residing in Amarillo. Word is also a real estate broker residing in Clarendon, Tex. Blair resides in Dallas. Blair listed the land for sale with Coffee at a certain price per acre, agreeing to pay a 5 per cent, commission in case of sale. Coffee, with the consent of Blair, enlisted the aid of Word, agreeing to divide the commission with Word.

Ray McMurry' was an office employee of the Waggoner estate in Fort Worth. W. T. Waggoner was the trustee of that estate. The record discloses that Waggoner, in real estate purchases, always declined to negotiate with agents, and insisted upon dealing directly with the owners. Of this fact Blair was advised.

On June 13, 1930, McMurry wrote Word that Waggoner desired to secure, by lease or purchase, a ranch of 150,000 or 200,000 acres. He requested Word to give him information as to where a lease or purchase of this kind could be found. Word wrote McMurry concerning the Blair ranch, and the information in regard thereto was communicated by McMurry to Waggoner. The ranch was inspected by representatives of the Waggoner estate,_ and it appears that negotiations were had between Blair and the estate, but, for some reason not disclosed by the evidence, the negotiations ceased, and about January 3, 1931, Blair wrote Coffee advising the deal with Waggoner was off; that the next move must come from Waggoner, and “I would not want you or anyone else to broach the subject to him again.” Coffee so advised Word, and thereafter they had no further negotiation with any representative of the,Waggoner estate. In some way, which the evidence does not disclose, negotiations were later resumed between Blair and the Waggoner estate, resulting in sale of the ranch on June 29, 1931, at a less price per acre than it had been listed with Coffee.

The controlling question is whether the evidence is sufficient to show, prima facie, that plaintiffs were the procuring cause of the sale. If so, it follows the motion for an instructed verdict was improperly granted.

In Keener v. Cleveland (Tex. Com. App.) 250 S. W. 151, 152, it was said: “The rule is well established that, when a real estate broker is instrumental in bringing together the seller and a purchaser who is acceptable to him, and they consummate a sale and purchase of property on terms that are satisfactory to the seller, this constitutes the agent the procuring cause of the sale, and he is entitled to the commission agreed upon.”

In Edmonson v. Tinsley (Tex. Civ. App.) 15 S.W.(2d) 118, 120, it was said: “If as a matter of fact a broker produces a purchaser who is ready, able, and willing- to, and who does, buy on terms satisfactory to the owner, he is entitled to his commission, although the owner and the purchaser may temporarily break off negotiations with reference thereto. Neither is it necessary for the acts of the agent to keep up negotiations until the trade is finally consummated. If the agent brings the parties together and they then, independent of the acts of the agent, continue negotiations until the trade is consummated, he is as a matter of law the procuring cause.” See, also, 4 R. C. L. Title Brokers, §§ 46, 57, and 58; 7 Tex. Jur. Title Brokers, §§ 79 and 85; Masters v. Hunt (Tex. Civ. App.) 397 S. W. 219.

The facts show that plaintiffs, through the inquiry of McMutrry, became advised that Waggoner was in the market for a ranch and advised Blair thereof; that Blair then negotiated with Waggoner, and eventually sold the ranch to the estate which Waggoner represented. The purchaser was found, and the transaction originated by plaintiffs in this manner, and these facts were plainly sufficient to show prima facie that the plaintiff’s efforts were the procuring cause' of the sale finally consummated. Especially is this true in view of the fact that it was always contemplated Blair would conduct the negotiation personally with Waggoner because of the latter’s aversion to real estate brokers and his insistence in all instances of dealing directly with the proposed seller.

Appellee invokes that line of authority to the effect that, if the efforts of the broker are ineffective, and he abandons further efforts, and the owner later, by independent effort, effects a sale, then the broker cannot justly be regarded as the procuring cause of the sale and has no claim for commission. Goodwin v. Gunter, 109 Tex. 56, 61, 185 S. W. 295, 195 S. W. 848.

But this doctrine has no present application, for the record is silent as to the -circumstances under which, and the time when, Blair resumed negotiations with Waggoner and of the negotiation which finally brought about the sale.

The facts show prima facie that plaintiffs were the procuring cause of the sale, and the burden was then shifted to the defendant of going forward with the evidence; rebutting the prima facie case made by plaintiffs, and showing that the negotiation was resumed and the sale finally consummated under circumstances which render applicable the doctrine relied upon by appellee. This he did not do, and it would be but conjecture and surmise to assume that the negotiations with Waggoner were resumed by Blair and the sale finally effected by Blair’s independent effort.

Reversed and remanded.


text:
    HUNT v. HUNT.
    No. 11392.
    Court of Civil Appeals of Texas. Dallas.
    Dec. 3, 1932.
    Rehearing Denied Jan. 7, 1933.
    Tom C. Clark, and Guy L. Mann, both of Dallas, for appellant.
    Neary & Rogers, of Dallas, for appellee.
   LOONEY, J.

Lucy Hopkins Hunt sued her husband, Carl M. Hunt, alleging, in a verified petition, that they were married August, 1908, in the county and city of Dallas, state of Texas, and, at the institution of the suit were resident citizens of and domiciled in said city and county; that during February, 1931, while maintaining such residence, defendant abandoned plaintiff, and about October 17, 1931, filed suit against her for divorce in a district court of Dallas county; that said suit remained upon the docket (without service on plaintiff) until dismissed for want of' prosecution, was later reinstated upon the docket, but was voluntarily dismissed by defendant, September 7, 1932, and on same day he caused to be filed a divorce suit against plaintiff in a court of the city of Juarez, state of Chihuahua, United States of Mexico; that on September 10, 1932, plaintiff was served with notice issued from said court in said cause, requiring her, within six days after service, to defend the same, otherwise judgment by default would be rendered against her; that the design of defendant in suing in Mexico was to evade the jurisdiction of, and perpetrate a fraud upon, the proper court of Dallas county; that, since defendant abandoned plaintiff, his contributions to her support have been so small that she is without sufficient means to contest the divorce suit pending in the court at Juarez; wherefore she prayed for injunctive relief, temporary and permanent. The court entered the order hereinafter set out, and, without moving to dissolve or suspend the operation of the writ, defendant appealed, therefore the allegations of the plaintiff’s petition will be considered, for the purposes of this appeal as undisputed facts. Royal Brewing Co. v. M., K. & T. Ry. Co. (D. C.) 217 F. 146; Athens Tel. Co. v. City of Athens (Tex. Civ. App.) 163 S. W. 371.

Defendant does not question the sufficiency of plaintiff’s petition to state a cause of action, but contends that, under her prayer, simply for an injunction, the court was without jurisdiction either to grant or deny a temporary writ, nor did the same authorize the granting of relief that effectually disposed of the controversy before final trial on its merits.

We do not agree, as contended by defendant, that plaintiff’s prayer was insufficient to authorize the granting of temporary relief. The prayer reads: “Wherefore, premises considered, plaintiff prays that this 'Court immediately and forthwith without notice or hearing, issue its writ of injunction prohibiting the defendant, his agents or attorneys from taking any further action in the divorce suit now pending in Mexico, said divorce having been instituted on the 7th day of September, A. D. 1632 in the City of Juarez, State of Chihuahua, United States of Mexico, in the Civil Court, Bravos District of said,City of Juarez, or at the instance of said defendant, his agents or attorneys to enter 'any order in such cause and that after a hearing, the defendant be permanently enjoined so long as his domicile remains in this State, from taking any further action to the end of securing a divorce from this plaintiff in said cause, and that,after hearing, the Court further direct the defendant to cause a dismissal of the divorce suit now pending in Mexico, described above, and for such other- and further relief legal and equitable to which this honorable court deems this plaintiff entitled.”

We think it obvious that plaintiff prayed for both temporary and permanent relief. In Sinclair Refining Co. v. McElree, 52 S.W.(2d) 679, we overruled a similar contention.

Nor do we agree that the relief granted was altogether of a permanent nature. The court’s order reads: “On this, the 14th day of September, 1932, came on to be heard the application of Mrs. Buey Hopkins Hunt, plaintiff in the above entitled and numbered cause, by the Judge of the District Court of Dallas County, Texas; and it appearing to him from the facts stated therein that the applicant is entitled to a permanent writ of injunction. It is therefore ordered, adjudged and decreed that the permanent writ of injunction issue restraining the defendant personally or through his agents or attorneys from taking any further action in the divorce suit now pending in the Civil Court, Bravos District, of the City of Juarez, State of Chihuahua, United States of Mexico, said divorce proceeding having been instituted in said court on the 7th day of September, 1932; or at the instance of said defendant in person or through his agents or attorneys, to enter any orders in* such cause, or to procure the issuance or entry of any further orders in said cause, or in any manner or by any acts to take further steps toward the procuring of final decree of divorce in such cause; the defendant is further ordered forthwith to take the proper steps necessary to cause the immediate dismissal of the divorce proceeding above described now pending in' Mexico; the Clerk of the Court is hereby ordered to issue a permanent writ of injunction embodying the above orders upon the plaintiff’s -making bond as required by law in the sum of One Hundred ($100.00) Dollars.”

While the order recites that applicant is entitled to a permanent writ of injunction, it is obvious that all the relief granted, except the mandatory feature, commanding defendant “forthwith to take the proper steps necessary to cause'the immediate dismissal of the divorce proceedings above described, now pending in Mexico,” is simply preventive, and necessary for the preservation of the status quo pendente lite; besides, the court must have so intended, for the order required plaintiff, as a prerequisite to the issuance of the writ; to execute and file the statutory bond, required only when temporary relief is granted. However, that portion of the order commanding defendant to immediately dismiss the divorce proceedings instituted in Mexico was not at all necessary for the preservation of the status quo, but would effectually have disposed of the whole case in -advance of final trial, and in this respect we think the order was erroneous. The doctrine is well settled in this state that the true function of a temporary injunction, either mandatory or preventive, is to restore or preserve the status quo pendente lite, and nothing more. Therefore the order is reformed by deleting the erroneous provision, and, as reformed, is affirmed.

Reformed and affirmed.


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

text:
    NAIL et al. v. COMPTON et al.
    No. 1599-5984.
    Commission of Appeals of Texas, Section A.
    Dec. 22, 1932.
    Blanton, Blanton & Blanton, of Abilene, for plaintiffs in error.
    James G. Harrell, of Breekenridge, for defendants in error.
   SHARP, J.

This suit was instituted in the district court of Shackelford county by W. R. Nail, John H. Sedwick, John F. Sedwick, W. G. Webb, W. Graham Webb, Jr., Thomas L. Blanton, Jr., Hugh Sherwood, Watt R. Matthews, G. C. Butler, and General Neon Sales Company of Texas, against Emmet A. Jones, George Strib-ling, Jr., H. F. Stribling, J. O. Raman, T. A. Key, George H. Young, and Guy E. Wagoner. Except as otherwise stated herein, the parties will be referred to as plaintiffs and defendants as they were designated in the trial court.

Plaintiffs amended their petition, and G. C. Butler and the General Neon Sign Corporation were made defendants; Guy D. Wagoner was dismissed from the ease. Thereafter the plaintiffs, W. R. Nail, John H. Sedwick, John F. Sedwick, W. G. Webb, and W. Graham Webb, Jr., made an affidavit for an attachment. A writ of attachment issued and. a levy made upon certain property. G. C. Butler, with George R. Compton and Henry Compton, as sureties, executed a replevy bond for the property attached. The court gave judgment for the plaintiffs against certain defendants, including G. C. Butler, for the sum of $9,750, and also gave judgment for the same amount against Henry and Charles R. Compton, the sureties on the replevy bond. An appeal was made to the Court of Civil Appeals at Eastland, and the judgment of the trial court was affirmed in part and reversed and rendered in part. 36 S.W.(2d) 307. We refer to the opinion of the Court of Civil Appeals for a more detailed statement of the nature of the suit.

The principal question for decision here is raised in the proposition that there was a fatal variance between the affidavit and plaintiffs’ petition. The controlling facts are that the allegations in the petition show that a recovery was sought in behalf of six of the plaintiffs for the sum of $9,750, and that each of the six plaintiffs had an individual interest in the amount to the extent of $1,625.

The pertinent parts of the petition read as follows:

“Now come the plaintiffs, W. R. Nail, John Horace Sedwick, John F. Sedwick, W. G. Webb, W. Graham Webb, Jr., and Thomas L. Blanton, Hugh Sherwood, Watt R. Matthews and the General Neon Sales Company of Texas and show to the Court,” etc.

With respect to the $9,750.00 claimed by plaintiffs it is alleged: “That the plaintiffs, Nail, Blanton, W. G. Webb, W. Graham Webb, Jr., John Horace Sedwick and John F. Sed-wick * * * each caused the sum of $1,-625.00 to be paid over to the plaintiff, John H. Sedwick, as the agent of each of them for the purpose of depositing such sum of money with General Neon Sign Corporation. * * * Thereupon the plaintiff, John -Horace Sed-wick, agent for. five of the other plaintiffs mentioned and on his own behalf, delivered to said Jones for and on behalf of all of said plaintiffs, a good and sufficient check for the sum of $9,750.00, which check was payable to the said corporation, General Neon Sign Corporation * *

The prayer of the petition contains the following: “That said plaintiffs, Nail, John Horace Sedwick, John F. Sedwick, W. Graham Webb, Jr., W. G. Webb and Blanton, for tbeir joint use and benefit, do bave and recover of and from tbe defendants severally and jointly * * * the sum of $9,750.00. * * * ”

Tbe affidavit for attachment reads as follows:

“Affidavit and Bond in Attachment.
“W. B. Nail, et al. vs. Emmet A. Jones, et al. •No. 1251

In the District Court, Shackelford County, Texas.

“The State of Texas, County of Shackelford.
“Before me, the undersigned authority, on this day personally appeared W. R. Nail, John Horace Sedwick, W. G. Webb, John F. Sed-wick, and W. Graham Webb, Jr., Plaintiffs in Attachment, in the above styled and numbered cause, who being duly sworn, says that G. C. Butler, one of the Defendants is justly indebted to the Plaintiffs in the sum of Nine Thousand, Seven Hundred, Fifty and No/199 Dollars, of which said indebtedness tbe sum of §9,750.00 is already due, and that the said Defendant G. C. Butler is about to dispose of his property with intent to defraud his creditors, and that the debt due the plaintiffs in the above Cause No. 1254, is due for property obtained under false pretenses, and these deponents further say'that the Attachment now applied for is not sued out for the purpose of injuring or harrassing tbe said Defendant, and that Plaintiffs will probably lose their debt unless such attachment is issued.
“W. G. Webb
“W. R. Nail
“Jno. F. Sedwick
“John Horace Sedwick

A motion was made in the trial court by interveners, Charles R. and Henry Compton, to quash the attachment proceedings, because, among other reasons, of the variance between the petition and the affidavit for attachment. The law gave them this right. The Leader, Inc., v. Elder Mfg. Co. (Tex. Com. App.) 39 S.W.(2d) 880. The variance pointed out is that the plaintiffs, W. R. Nail, John H. Sedwick, John F. Sedwick, W. G. Webb, W. 'Graham Webb, Jr., and Thomas L. Blanton, Jr., sought a recovery of §9,750 as disclosed by the petition filed by them. The affidavit for attachment shows that five of the plaintiffs swear that Butler is indebted to them in the sum of $9,750; ’ it also shows that it was signed and sworn to by only five of the plaintiffs; that Thomas L. Blanton, Jr., Hugh Sherwood, Watt R. Matthews, and General Neon Sales Company of Texas did not join therein; and that none of the five plaintiffs signing the affidavit purported to act or sign the affidavit as either agent or attorney for the other plaintiffs. Those signing the affidavit designated themselves “plaintiffs in attachment in the above styled and numbered cause.” The amount stated in the affidavit as the “amount of the demand” is §9,750.

The decisions of this state hold that a person seeking the benefit of the summary remedy of attachment must bring himself clearly within the material provisions of the statute, and no presumption can be indulged to support an affidavit defective in any substantial particulars. Perrill & Fox v. Kaufman & Runge, 72 Tex. 214, 12 S. W. 125; 4 Tex. Jur. pp. 170 and 171. Article 275, R. S. 1925, provides that writs of original attachment may issue “upon the plaintiff, his agent or attorney, making an affidavit stating: (1) That the defendant is justly indebted to the plaintiff, and the amount of the demand.” Article 24, R. S. 1925, provides that “whenever it may be necessary or proper for any party to a civil suit or proceeding to make an affidavit, it may be made by either the party or his agent or attorney.” Thus it will be seen that the statute prescribes that the affidavit shall be made by the “plaintiff, his agent or attorney.”

In the case of Cherryhomes et al. v. Carter, 66 Tex. 166, 18 S. W. 443, 444, our Supreme Court announced - the rule in the following-language: “* * * When an affidavit is made, in the course of a judicial proceeding, by one person in behalf of another, his authority to do so should be made to appear in some way from the record, or it will not serve in the place of the oath of the proper party.”

It is undisputed that four of the plaintiffs did not join in making the affidavit for attachment ; that Thomas L. Blanton, Jr., with the five plaintiffs making the affidavit, claimed a one-sixth interest in the recovery of $9,759, as described in the petition. Thus it will be seen that in the affidavit made by only five of the plaintiffs who designated themselves as plaintiffs in attachment alleged that G. C. Butler, one of.the defendants, is justly indebted to them in the sum of $9,759, whereas in the petition it is alleged that six plaintiffs claimed an interest in equal proportions to the $9,759, as described therein.

The" rule is well settled that an important variance between the petition and affidavit will vitiate the writ.' 5 Tex. Jur. pp. 294, 295, and cases cited. It is also true that when an affidavit is made by an agent or attorney he should be so described, in the affidavit, and an affidavit made by a person other than the plaintiff is fatally defective if it does not designate the affiant as plaintiff’s agent or attorney. Willis v. Lyman, 22 Tex. 268; Spencer v. Davis (Tex. Civ. App.) 298 S. W. 443. It is not necessary that the agent or attorney should swear that he acts as such and the requirements of the law are met if he is described as such in the affidavit. 5 Tex. Jur. p. 193.

The affidavit made by the five plaintiffs does not in any way refer to the petition filed in this cause. However, if the affidavit did refer to the petition, and we should go to it in order to find facts to support the affidavit, we fail to find any facts alleged that would supply the failure of the parties making the affidavit for attachment to assert therein that those making the affidavit were acting as agent or attorney of those plaintiffs who did not join in making the affidavit. Under the rule established this defect becomes material and renders the attachment proceedings fatally defective.

In reaching the conclusion herein stated, we have, kept in mind the well-established distinction made by the courts of this state that the attachment proceedings will not be quashed where the amount claimed in the affidavit for attachment is less than the amount claimed in the petition. Evans v. Lawson, 64 Tex. 199; Elrod Bros. & Phillips v. Rice (Tex. Civ. App.) 99 S. W. 733; Donnelly v. Elser, 69 Tex. 282, 6 S. W. 563.

For the reasons stated we recommend that the judgment of the Court of Civil Appeals affirming in part and reversing and rendering in part the judgment of the trial court be affirmed.

CURETON, C. J.

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