author: WALTHALL, J.

text:
    AMERICAN INDEMNITY CO. v. MARTIN et al.
    No. 2706.
    Court of Civil Appeals of Texas. El Paso.
    Sept. 22, 1932.
    Rehearing Denied Oct. 13, 1932.

      Seay, Seay, Malone & Lipscomb, of Dallas, for appellant.
    Roy W. McDonald, of Dallas, of counsel, and Dallas C. Biggers, of Dallas, for appel-lee.
   WALTHALL, J.

This is a suit to recover damages for personal injuries.

The suit was originally brought by appel-lee W. B. Martin, referred to in the record as “Whit” Martin, against A. D. Martin and the American Transfer & Storage Company, a corporation, to recover damages for personal injuries alleged to have been sustained in an accident through the negligence of each of the defendants.

By a subsequent amended petition W. B. Martin dismissed his suit as to the American Transfer & Storage Company, and made the American Indemnity Company, an insurance corporation, a party defendant along with A. D. Martin and asserted a cause of action against it under an insurance policy which that company had issued on the automobile of A. D. Martin, and which automobile was involved in the accident.

A. D. Martin did not answer, and the cause went to trial on W. B. Martin’s third amended original petition, in which he assigned various and sundry acts of negligence on the part of Mrs. Vera Martin, wife of A. D. Martin, who was driving the automobile in which W. B. Martin was riding at the time of the accident.

All of the allegations with reference to the defendant American Indemnity Company are contained in paragraph 12 of said amended petition, in which paragraph it is alleged that defendant insurance company was organized under the laws of the state of Texas, and was authorized by such state to issue policies of liability insurance; that on or about December 28, 1929, it issued a certain policy of insurance for a period of one year, effective at noon on the 28th day of December and expired at noon on the 28th day of December, 1930, for which the defendant A. D. Martin paid the premium; alleged' that “a true and correct copy is attached heretb and marked exhibit ‘A’ and made a part hereof as though copied at this point in full; that by virtue of said policy the defendant, American Indemnity Company is liable to the plaintiff for such amount as the plaintiff shall recover against the defendant, A. D. Martin, up to the sum of Ten Thousand ($10,000.00) Dollars.”

Plaintiff prayed for a joint and several judgment against defendants in the amount of the damages claimed to have been sustained by him.

Defendant American Indemnity Company filed a plea of misjoinder of both parties and causes of action, which plea was overruled, and defendant excepted.

Subject to its plea of misjoinder, the American Indemnity Company filed its answer to the merits, consisting of a general demurrer, certain special exceptions, various acts and omissions on the part of the plaintiff which it asserted were the sole canses of the accident, and were contributing and concurring causes of thé accident.

It also pleaded the co-operation clause of its policy and asserted various acts and omissions on the part of A. D. Martin, which it alleged violated that provision of the policy.

It also pleaded that provision of the policy which exempted it from liability for injuries -to a member of the assured’s (A. D. Martin’s) family or household, and alleged that the plaintiff, W. B. Martin, came within that exception of the policy, and was not entitled to recover.

Plaintiff filed a supplemental petition, consisting of a general demurrer, various special exceptions, a denial of negligence on his part, a denial of lack of co-operation on the part of A. D. Martin, and a denial that plaintiff was a member of the family or household of A. D. Martin.

The cause was submitted to a jury on special issues which were answered in favor of plaintiff, upon which judgment was entered in his favor for $7,000.

American Indemnity Company’s motion for a new trial was overruled, to which it excepted, and prosecutes this appeal.

Opinion.

Appellant’s first assignment of error complains of the overruling of its plea of mis-joinder of parties and causes of action for the following reasons:

(a) The policy is, and on its face shows to be, an indemnity agreement, and expressly provides that “no action shall lie against the Company to recover for any loss under this policy until the amount of the damages for which the assured is liable is determined either by final judgment against the assured or by agreement between the assured and the plaintiff with the written consent of the company.”

(b) The petition shows that it is an attempt to join an action for tort against A. D. Martin with an action against appellant on a contract of indemnity.

(c) Appellee is not named in the indemnity contract, nor a party thereto, nor was there any privity of contract between appellant and appellee.

The policy declared upon by appellee in his petition appears in the transcript and in the statement of facts. It would serve no purpose to here set out the policy in its entirety, and we will here state such portions only as seem pertinent to the propositions discussed under this assignment.

In the provision in the policy for “suit against Company,” the policy provides: “No action shall lie against the Company to recover for any loss under this policy until the amount of the damages for which the assured is liable is determined, either by final judgment against the assured or by agreement between the assured and the plaintiff with the written consent of the Company, nor unless such action is brought within two years after the rendition of such final judgment, and no suit or action on this policy or for the recovery of any claim hereunder shall be sustainable in any court of law or equity unless the assured shall have fully complied with all the foregoing requirements.” Then follow under that paragraph of the policy other conditions and provisions as to time of filing suit and provision of the laws of the state wherein the policy is issued, and which seem to have no application here.

In reply to appellant’s contention, appel-lee, in his brief, refers to other portions of the policy, and reasons therefrom that the policy of insurance in question is a liability insurance policy as distinguished from an indemnity policy, and that under the facts of this ease our Texas rule is that a liability insurer can properly be joined with the assured in an action by the injured party.

Appellee, in his brief, refers to portions of the policy which recite that A. D. Martin is insured “against loss from such of the perils * * *. as are described and limited in the ‘Schedule of Perils’ ” appearing in the policy and for which a specific premium charge is made in schedule of coverage. Under the schedule of coverage the pertinent item in appellant’s liability is limited to the amount stated. Under the schedule of perils the pertinent item under “Liability” states at length the legal liability imposed upon the assured from damages on account of bodily injuries caused by the ownership, maintenance, or operation of the automobile described in the policy, accidentally suffered or alleged to have been suffered while the policy was in force by any person or persons except certain ones mentioned; among the exceptions are included “injury to or death of any member of the household or family of the assured hereunder.” The remaining portion of that item states the amount of assured’s liability and which exceeds the amount of the judgment.

Under “General Conditions” in the policy is an item “Assignment of Interest,” which provides that “all rights hereunder are strictly personal to the assured named in the policy” and terminates the policy on any change in the ownership or interest in the automobile insured.

An item under “General Conditions,” “Indemnity for Loss,” provides: “The company hereby agrees to defend in the name of and on behalf of the assured, any suits, even if groundless, brought against the assured to recover damages on account of such happenings as are provided in the property damage and liability peril clauses herein,” and to pay all costs taxed against the assured, etc.; the company reserving the right to settle or defend in any such claim or suit.

The policy contains a “bankruptcy or insolvency” item which provides, in substance, that bankruptcy or insolvency of the named assured shall not relieve the company from liability.

The question to be determined under this assignment is whether appellee has a cause of action directly against the appellant insurance company1 under the insurance policy involved in this case; that is, does appellee’s asserted cause of action lie against appellant under the policy prior to final judgment against the assured, and in the absence of any agreement between the assured and ap-pellee with the consent of appellant? Appellant’s contention is that the policy of insurance is strictly an indemnity agreement as distinguished from a liability agreement, and that under the terms of the policy no action will lie against it by appellee’s suit until the amount of the damage asserted in the suit has been determined by final judgment, as in a clause of the policy stated, and that such final judgment or agreement not having been alleged, appellant is improperly joined as a party defendant.

In the absence of a direct reply proposition in appellee’s brief to appellant’s assignment, we gather from the argument and references appellee’s contention is to the effect that the policy in this case was taken out for the benefit of appeUee within the meaning and contemplation of the law; that in such cases the law establishes the privity of contract and permits a direct suit, and quotes from Texas Jurisprudence, vol. 5, p. 661, a part of which quotation states the rule to be: “The Courts have rejected the contention that the insurance company may not be joined because, raider the terms of the policy, it cannot be liable until after judgment has been awarded against the insured.”

We might say at this time that it is not objectionable to join causes of action ex delicto and ex contractu where they arise out of the same transaction or relate to the same subject-matter and depend mainly on the same evidence. Texas Landscape Co. v. Longoria (Tex. Civ. App.) 30 S.W.(2d) 428; American Automobile Ins. Co. v. Struwe (Tex. Civ. App.) 218 S. W. 534; Kuntz et al. v. Spence et ux. (Tex. Civ. App.) 48 S.W.(2d) 413.

The facts here, we think, bring this case under the rule stated.

Appellant submits that the cases of American Auto Ins. Co. v. Struwe (Tex. Civ. App.) 218 S. W. 534, 535; Texas Landscape Co. v. Longoria (Tex. Civ. App.) 30 S.W.(2d) 423, 425; Monzingo v. Jones (Tex. Civ. App.) 34 S.W.(2d) 662; and American Fidelity & Casualty Co. v. Williams (Tex. Civ. App.) 34 S. W.(2d) 396, are distinguishable from the present ease on the facts because the policies in said cases are influenced by ordinances which obligate the insurance companies to pay di-, rectly to the injured person the damages awarded.

In the American Auto Ins. Co. v. Struwe Case a similar plea in abatement to that here was. presented, on the ground that the insurance' company “under the terms of the policy, was only liable after judgment had been awarded against Zunker,” the driver of the automobile causing the injury. In discussing that case Judge My, for the San Antonio Court, said: “That plea was properly overruled, because under the laws of Texas a dual suit will always be avoided whenever all parties can have a fair trial when joined in one suit. Appellee, had he so desired, could have prosecuted his claim to judgment as against Zunker and then have sued on that judgment against the insurance company, but the law does not make it imperative that he should do so, but would permit him to dispose of the whole matter in one suit.” The court does not indicate in the opinion that the rule announced was influenced by an ordinance of the city of San Antonio, but rather in cases where a dual suit can be avoided and where all parties can have a fair trial when joined in one suit. A writ was refused.

The Texas Landscape Co. v. Longoria Case was rendered by the San Antonio Court. Lon-goria died'as the result of injuries received in a collision in which he was driving an automobile operated by an employee of the Texas Landscape Company. Appellees made the insurance company a party defendant, alleging that it had issued a policy of insurance to the defendant, Texas Landscape Company, covering the automobile involved in the collision, and that under the policy the insurance company contracted and agreed to pay and satisfy all judgments rendered against the Texas Landscape Company, because of injuries or death inflicted by said automobile up to the amount stated. The insurance company filed its plea in abatement alleging that it was not a proper or necessary party to the suit, and that there was a misjoinder of causes of action for tort and on contract. Defendant, Texas Landscape Company, also filed a plea of misjoinder and adopted the plea of the insurance company. The trial court overruled the pleas. The policy obligates “to pay and satisfy judgments rendered against the assured in legal proceedings defended by the Corporation and to protect the assured against the levy of executions against the assured.” Under that policy the assured was not required to pay the judgment first before having recovered against the company. In disposing of the pleas the opinion states that it was written (not being in the policy, supposedly as a matter of law) for the benefit of injured persons as well as the assured, and says, “Therefore there can be no reason why the assurance corporation should not be made a party to this suit.” The opinion refers to American Auto Ins. Oo. v. Struwe case, supra, .with approval.

The case of Kuntz v. Spence et ux., 48 S.W. (2d) 413, 416, by the Port Worth Court, is similar in many of its features to the present case. In that case a plea of misjoinder of causes of action was presented, and that the policy sued on was for indemnity to the assured only and did not embody direct liability to the plaintiffs. The >plea of misjoinder was overruled by the trial court and error assigned thereto. The opinion quotes at length the pertinent provisions of the policy to which we refer without stating them here. The policy provided: “No recovery against the company shall be had under agreements A or B until the amount of loss or expense shall have been determined, either by final judgment against the Assured after actual. trial in an action defended by the Company or by a written agreement of the Assured, the claimant, and the Company, nor in either event unless suit is instituted within the time herein limited.” Under the “Bankruptcy and Insolvency” clause, provided that “any person, or his legal representatives, who shall obtain final judgment against the Assured because of any such bodily injury * * * may proceed against the Company under tho terms of this policy to recover the amount of such.” The court said: “We believe it to be clear that the policy should be construed as one of liability and not merely one of indemnity. Even under the last-quoted paragraph [last quoted above] of the policy it is expressly provided that any person who shall recover a final judgment against the assured because of any bodily injury should have the right to recover the same judgment against the insurance company.” The court concluded: “And for that reason alone we can perceive no reasonable ground for denying plaintiff the right to sue both the defendants in the same action and thus avoid a multiplicity of suits.” The court referred with approval to the cases of American Automobile Ins. Co. v. Struwe and Texas Landscape Co. v. Longoria, supra.

See, also, the case of A. S. Pickens v. Katie Mae Seaton, 51 S.W.(2d) 1056, recently decided by this court.

The policy in this case has much in common with the American Automobile Ins. Co. v. Cone (Tex. Civ. App.) 257 S. W. 961, held to be an indemnity policy, but has other provisions similar to those discussed and held to be liability contracts.

We have concluded that the overruling of the plea of misjoinder of causes of action and parties defendant does not present reversible error. If the rule stated for the holding in American Automobile Ins. Co. v. Struwe Case, supra, should control, to avoid multiplicity of suits, we think there can be no question. Appellant agrees to defend the suit and there could be no liability against it unless and until a final judgment is rendered against A. D. Martin, which was done.

Appellant’s second assignment submits error to the overruling of its general and special demurrer, on the grounds: (a) Failure to set forth sufficient facts to show any cause of action against it, and (b) since appellant’s policy, a copy of which was attached to ap-pellee’s petition and by specific allegation made a part of it, the policy containing certain exception clauses, the petition should affirmatively allege that appellee’s cause did not come within any of said exceptions.

The point presented has caused a diversity of opinion by courts in other jurisdictions as well as in our own. Without stating the holdings of the courts or their reasoning on the points, we think the case of Travelers’ Ins. Co. v. Harris, 212 S. W. 933, by the Commission of Appeals, determines the question for this court. For reasons stated in that ease we think the overruling of the demurrers, general and special, present reversible error.

We think the court was not in error in excluding from the evidence in this suit the original petition in the case of A. D. Martin et ux. v. American Transfer & Storage Co. The tendered pleading was not in any sense an' admission of appellee in this case.

The court refused to give a requested peremptory instruction in appellant’s favor and error is assigned thereto. The reasons assigned by appellant embrace practically its entire defense, both of law and fact, appellant assuming that the issues, both of law and fact, should - have been decided in its favor, while the court had ruled the questions of law against appellant, and the jury had found some of the facts against appellant. To pass upon the several reasons assigned thereto would require under that assignment a discussion of practically the entire case.

Under “Schedule of Perils” in the policy appears an item reading substantially as follows: “Liability”: Legal liability imposed by law upon the assured for damages on account of bodily injuries, caused by the ownership, maintenance or operation of the automobile described in the policy, accidentally suffered or alleged to have been suffered while the policy was in force, excepts from such liability for injury to “any member of the household, or family of the assured hereunder.” Another provision of the policy, and pleaded by appellant, without stating it in full, provides in substance that if an action is brought against the assured to enforce a claim for damages covered under the property damage or liability coverage of the policy, the assured shall not, without the consent of the company, interfere in any negotiation for settlement or in any legal proceedings and “shall in no manner aid or abet the claimant, but shall cooperate fully with the company in defense of the said claim or suit.” Appellant pleaded the above provision of the policy and alleged that A. 1). Martin had breached that provision of the policy contract, and that A. IX Martin was in truth and in fact the instigator of appellee’s claim and the real plaintiff in the case, stating the actions of A. D. Martin in that respect in detail.

Much evidence was heard on each of the above issues. Appellant objected to the submission of the issue to the jury as to whether appellee was a member of the household or family of A. D. Martin and insisted on the giving of its peremptory charge.

By several assignments appellant submits error to the submission of any issue to the jury, and especially the issue whether ap-pellee W. B. Martin was a member of the household or family of A. D. Martin at the time of the accident, and error in submitting any issue to the jury on the ground that the undisputed evidence shows, as a matter of law, that appellee was a member of the household of A. D. Martin, and that A. D. Martin had breached the policy contract as alleged.

The jury found that appellee was not a member of the family or household of A. D. Martin at the time of the collision in question.

The court in submitting the issue defined the term “family or household” and made no distinction between the two. No objection was made to the form of the charge nor the definition. The contention of appellant, as wo understand it, is that the undisputed evidence shows, as a matter of law, that appellee was a member of the household of A. D. Martin. In this we do not concur. • The evidence shows without controversy that while appellee is a younger brother of A. D. Martin, and occupied a room in his house and had the privilege of his home, appellee was of age, had a job, paid for his room and board, and was not in any wise under the control of A. D. Martin.

The court did not submit to the jury, as requested by appellant, whether A. IX Martin breached the contract by aiding and abetting appellee in prosecuting his claim for damages. In the judgment the court finds “that the defendant A. D. Martin complied with all the terms of such policy with respect to reporting such accident and tendering his co-operation to the defendant American Indemnity Company.” No objection is made here to the refusal of the court to submit the issue, nor, as we understand it, to the sufficiency of the evidence to support the court’s finding. We think it was an issue of fact and not of law. We think, under the evidence, the fact could have been found either way. Where the uncontroverted evidence shows that A. IX Martin did aid and abet appellee m the matter of his claim, the issue would not be an issue for .the jury, but the legal eifect of such undisputed evidence would be for the court.

Appellant's position seems to be that where the evidence shows that A. D. Martin aided and abetted appellee in presenting his claim, appellant’s defense is complete by reason of such breach of the contract. We do not concur in that view, where, as we think, the policy contract must be construed as a liability and not an indemnity contract. Ap-pellee’s cause of action had attached prior to such breach and would not be discharged by such breach.

We do not think, as submitted, that the undisputed evidence showed, as a matter of law, that appellee was guilty of contributory negligence, and that for that reason the peremptory instruction should have been given.

Appellant submits other grounds of error which we have considered but overrule.

For the reason stated the case is reversed and remanded as to American Indemnity Company. The defendant A. D. Martin did not appeal, and the judgment against, him is not disturbed.


source: Caselaw Access Project

author: WADTHADD, J.

license: Public Domain

text:
    WEST TEXAS CONST. CO. v. ADAMS et al.
    No. 2734.
    Court of Civil Appeals of Texas. El Paso.
    Nov. 10, 1932.
    Rehearing Denied Dec. 8, 1932.

      Mart W. Reeves and Goggans & Ritchie, all of Dallas, for appellant.
    G. W. Dunaway, of Midland, for appellees.
   WADTHADD, J.

Appellant, West Texas Construction Company, brought this suit against Mrs. Murrell Adams, alleging her to be the same person as Mrs. Norrell Adams, and husband, C. D. Adams, W. D. Shirey and wife, Katie Shirey, asking judgment against Mrs. Murrell Adams for the amount of its debt, interest, and attorney fees, and the foreclosure of its special assessment lien against all appellees, by reason of a levy on lots 7, 8, and 9, in block 166, South addition to the city of Midland, Tex., the indebtedness stated to be the sum of $473.94, and being for the pro rata part of the cost of paving a portion of Main street in said city of Midland, said city on June 3, 1930, having issued to appellant a certificate of said special assessment levied by said city on November 12, 1929, pursuant to and in compliance with the provisions of chapter 106, Acts of 1927, of the First Called Session of the Fortieth Legislature, shown as article 1105b, of the Revised Civil Statutes 1925, as amended (Vernon’s Ann. Civ. St. art. 1105b). Appellant alleged a default in the payment of the first installment due and that it declared the entire amount due and placed in the hands of its attorneys for collection.

Appellees answered by general demurrer, and special exceptions, and further say that by reason of the facts stated the special assessment, if levied, did not constitute an obligation against any of appellees; that prior to the paving assessment levy appellees Shir-ey and wife had become bona fide purchasers of 'Said property? without notice; that at the time the street in question was paved and at the time the assessment was levied said property was the homestead of appellees Shirey and Wife; and that they did not authorize or agree to said improvement being made. Appellees further answered that the assessment was void and did not create a lien upon said property for the reason that the owner of said property was not properly named in the assessment, and for that reason appellees were not obligated to take notice of any assessment against said property.

At the conclusion of the evidence the court instructed the verdict for appellees, and entered judgment for appellees, from which judgment appellant duly prosecutes this appeal.

Opinion.

In the city ordinance making said special assessment against the several parcels of property abutting upon the street and against the owners of said property and fixing the charges against the respective parcels of property, the property in question was assessed in the name 'of Murrell Adams instead of Norrell Adams, appellee’s name.

By its first proposition appellant submits that a special assessment levied by the city of Midland under said chapter 106, of the Acts of 1927, of the First Called Session of the Fortieth Legislature, shown as article 1105b, Revised Civil Statutes 1925, as amended (Vernon’s Ann. Civ. St. art. 1105b), is by force of law a valid lien against the property so assessed, and a personal liability of the true owner thereof, though the owner of the property is incorrectly named in the assessment

Section 6 of said-chapter 106, Acts of 1927, First Called Session of the Fortieth Legislature (Vernon’s Ann. Civ. St. art. 1105b, § 6), reads in part as follows: “Any assessments against abutting property shall be a first and prior lien thereon from the date the improvements are ordered, and shall be a personal liability and charge against the true owners of such property at said date, whether named or not. The Governing Body shall have power to cause to be issued in the name of the city assignable certificates in evidence of assessments levied declaring the lien upon the property and the liability of the true owner or owners thereof whether correctly named or not, and to fix the terms arid conditions of such certificates.”

The assessment was levied pursuant to the statute. The rule requiring the name of a property owner to be given in making an assessment is a rule of statutory origin, and where the Legislature does not require that the name of the owner be given, and if not correctly given by express statutory provision, it does not invalidate the assessment. We see no reason why the full effect may not •be given the statute. The statute expressly makes three distinct statements: (1) The assessment levy creates a first and prior lien on the property; (2) the lien attaches from the date the improvements are ordered; (3) the assessments fix a personal liability and charge against the owner of the property at the date the improvements are ordered. The error in making the assessment in the name of Murrell Adams, when the true name of the owner is Norrell Adams, is not shown to have prejudiced appellees in any way, and there is nothing shown in the record to break the prima facie- assessment levy lien, or the personal liability of the owner of the date of the improvements, unless it be the homestead claim of appellees Shirey and wife, which we will consider later.

Our statute is of recent origin, and we have' found no case in this state involving the question presented. Like ■ questions, under similar statutes in other states, have been before the courts, and the view, as above, has uniformly been upheld. Kendig v. Knight, 60 Iowa, 29, 14 N. W. 78; West Chicago St. R. Co. v. People, 156 Ill. 18, 40 N. E. 605; Chicago, R. I. & P. Ry. Co. v. City of Ottumwa, 112 Iowa, 800, 83 N. W. 1074, 51 L. R. A. 763; Langan v. Bitzer (Ky.) 82 S. W. 280; Cohen v. City of Alameda, 124 Cal. 504, 57 P. 377; Felker v. City of New Whatcom, 16 Wash. 178, 47 P. 505. The tenor of the holdings seems to be that where the assessment is made by the municipal corporation, and for the improvement of the street, there is much reason for giving little weight to errors in names of the owners if the property assessed is properly described,- since from the nature of the proceedings and the character of the improvement it is hardly conceivable that an owner can be ignorant of what has been done; and, if he knows the facts, he must know, as a matter of law, that his property is liable for the assessment.

Under the express provision of the law as above, the lien of the special assessment “attaches to the property assessed upon the date the improvements are ordered,” in this instance, on the 29th day of October, 1929; that being the date of the ordinance ordering the improvements on Main street on which the property involved. here abuts. Anderson et al. v. Brandon et al. (Tex. Sup.) 47 S.W.(2d) 261; Claxton et al. v. Brandon et al. (Tex. Sup.) 47 S.W.(2d) 263.

The question is presented whether the property in question was the homestead of Shirey and wife on the 29th day of October, 1929, the time the assessment was levied on the property.

Appellees’ pleading states, in effect, and the evidence shows, that prior to the matters involved here the property was owned by -ap-pellees C. D. Adams and wife, Norrell Adams. O. D. Adams did not testify.

Mrs. Norrell Adams testified she acquired the property in 1927; took title in her name. Adams and wife some time before October, 1929, indicated to Shirey and wife, by parol, that Mrs. Adams would make a gift of the property to Mrs. Shirey; that Mrs. Shirey could have the property in October. Mr. and Mrs. Adams made no delivery of the property to Shirey and wife, but vacated the property before October. Shirey and wife accepted the property as a gift.' The property remained vacant from some time before October, 1929, until Shirey and wife moved into the property in February, 1930. Adams and wife executed a deed to Shirey and wife on May 29, 1930, and which deed was filed for record on March 14, 1932. No kind of contract, memorandum of gift or sale, or anything like that, was given before tlje deed was actually given. Shirey and wife lived at Mineóla, Tex., up to the time they moved into the property in February, 1930.

Mrs. Norrell Adams having had title to the property, the title remained in her until the title passed from her to Shirey and wife, and to sustain a claim of homestead in property one must have either a legal or equitable title to the property. As we view the facts, the transaction as to title as it stood on October 29,1929, was merely a parol promise of the owners to give the property to Mr. and M[rs. Shirey, or to Mrs. Shirey. Shirey and wife had the right to take possession, but they did not do so, and the prop-ety remained vacant for several months next thereafter.

To constitute a valid “gift of land inter vivos,” there must be a gratuitous and absolute transfer of the property from the don- or to the donee, taking effect immediately, as distinguished from a mere expression of intention to make the gift at some future time, and fully executed by a delivery of the property by the donor and an acceptance of the delivery by the donee. Martin v. Martin (Tex. Civ. App.) 207 S. W. 188, 193.

We think the evidence does not show that the title had passed out of Mr. and Mrs. Adams by gift on 29th of October, 1929. As to the claim of Shirey and wife that the property was their homestead on the 29th day of October, 1929, as we view it, the only evidence in the record as to a homestead on the ■property at that time is the statement of Mrs. Adams to the effect that Mr. and Mrs. Shirey were not able to buy the property and had to have a home. There is no expression or remote intimation in the evidence that Shirey and wife, on the 29th of October, 1929, or at any time, intended to make the property their home; certainly there was at that time no overt act on their part, by taking possession or otherwise indicating such intention.

We have concluded that the title, both equitable and legal, remained in Mrs. Adams on the 29th day of October, 1929, and the evidence does not show a homestead right in Mi', and Mrs. Shirey at thát time.

Appellant, in its oral argument before this court, expressly waived any right it had to a personal judgment against Mrs. Adams, and asked judgment establishing its debt, interest, and attorney fee and for a foreclosure of its assessment lien on said property against all appellees with order of sale, etc.

We have concluded that the trial court was in error in refusing appellant judgment as prayed for.

The case is reversed, and judgment is here rendered for appellant establishing the amount of its claim, as above, with foreclosure of its assessment lien on said property.


author: O’QUINN, J.

text:
    SHAMBAUGH v. BELLAR.
    No. 2253.
    Court of Civil Appeals of Texas. Beaumont.
    Nov. 2, 1932.
    Rehearing Denied Nov. 9, 1932.
    W. H. Graham, of Houston, for plaintiff in error.
    P. A. Dowlen, of Beaumont, for defendant in error.
   O’QUINN, J.

Plaintiff in error brought this suit in the district court of Jefferson county, Tex., to recover upon a paving certificate issued by the city of Beaumont for the sum of $406.25, with accrued interest, and for $150 as attorney’s fee. The pz’ayer was for judgment personally against defendant in error and for foreclosure of the paving lien.

Defendant in error answered by general demurrer, general denial, and specially that the property against which the paving certificate was issued was, and for many years had been, his homestead; that the paving involved was constructed without his consent and over his protest, and after notice that he would not he liable for the post of same; that the cost of the paving was far in excess of the benefit same would be to his property, and denied that the obligation sued upon fixed any lien upon his property. Plaintiff in error, by supplemental petition, denied all matters of fact set up by defendant in error’s answer, and pleaded that, because defendant in error did not file any suit within the time fixed by the charter of the city of Beaumont for the purpose of contesting the question of benefits or any other question relating to the improvement involved, he was estopped from raising any such question's in bar of such issues.

The case was tried to the court without a jury, and judgment rendered against plaintiff in error on all questions, and in favor of defendant in error. From that judgment this appeal is taken.

Plaintiff in' error’s first three propositions urge that the court erred in admitting the evidence of certain witnesses for defendant in error that the paving did not benefit the property, because defendant in eir-ror did not file any suit within the time provided in the charter of the city of Beaumont for the contesting of said question. It appearing- that no such suit was filed as required by the city charter to contest such question, the evidence was not admissible, but as the cause was tried to the court, and, when the evidence was admitted, the court stated that he would not consider any evidence not admissible, it is to be presumed that he did not consider same. Furthermore, the judgment discloses that the judgment denying a recovery was based entirely upon the fact that the property involved was at all times the homestead of defendant in error, and not subject to the liability asserted by plaintiff in error.

The fifth proposition asserts that the court erred in finding that the whole of the property against which the lien was asserted was the homestead of defendant and not subject to the lien. The property involved is lots 1 and 2, block 9, Arlington addition to the city of Beaumont. The residence is situated on lot 1. Lot 2 had at all times before the paving been used as a garden by defendant in error, and was at the time of the trial being so used for producing vegetables for family use. For many years, more than thirty, defendant in error owned and resided on said property in said residence with his family consisting of his wife and five children, all grown. His wife died there May 19, 1930. She left a will devising all her interest in the homestead to her husband. This will was duly probated and thus defendant in error became the owner of the whole property. Before Mrs. Bellar died defendant in error for a time rented a portion of the house as an apartment to get funds with which to help maintain the family. During this time defendant in error continued to live in the family home. After Mrs. Bellar died, July 14, 1930, defendant in error rented the whole house, furniture- and all, to a Mrs. Davis who, with her family, was living in it at the time the paving was done. Wien defendant in error rented his home to Mrs. Davis, he built a small room on lot 1 at the back of the house and put some of his house furnishings in it and occupied it himself. He says he rented to Mrs. Davis in order to get funds with which to pay taxes and insurance on the property, and to aid in living expenses. After Mrs. Bellar’s death, a son and daughter of defendant in error lived with him until the house was rented to Mrs. Davis. One daughter and her children were at the time of the trial living with defendant in error.. He denied that he had abandoned or had any intention of abandoning any portion of the homestead when he rented to Mrs. Davis.

Plaintiff in error concedes that all of the property involved was the homestead of defendant in error up to the time of the death of Mrs. Bellar, May 19, 1930, and that all-of said property continued to be the homestead of Mr. Bellar, defendant in error, up to July 14, 1930, the date that he rented his house to Mrs. Davis, and that all of said property has been and remains still the homestead of defendant in error, except 73 feet off of the north end of lot 1, which is the space on which is situated the residence house, but plaintiff in error insists that said 73 feet was abandoned by defendant in error as a part of his homestead on July 14, 1930, when he rented same to Mrs. Davis and built and himself lived in the little room at the rear of the house, eating and sleeping there, and continuously renting his said residence during said period, and its being all that time occupied by his tenant, Mrs. Davis, by reason of which said 73 feet lost its homestead- exemption and became subject to his claim, and that he should have had judgment for his debt and for foreclosure of his lien on said 73 feet. The court, as above stated, found in favor of defendant in error’s claim of homestead as to all of the property, and against plaintiff in error’s contention of abandonment, and we think this finding has abundant support in the record. All the evidence, we think, goes to show that defendant in error at all times and under all the circumstances claimed and occupied the premises as his homestead, and that the renting was intended to be and was but a temporary renting. Newton v. Calhoun, 68 Tex. 451, 4 S. W. 645. The property being at all times the homestead of defendant in error, the lion attempted to. be fixed against the property was invalid and of no force. Const, art. 16, § 50. Furthermore, said property being the homestead of defendant in error at the time the paving was ordered and the lien attempted to he fixed, the lien was void, and, even if defendant in error had subsequently abandoned said portion of said property, the lien did not become effective after said abandonment, for the Constitution, article 16, § 50, declared that no such lien “shall ever he valid,” and as was said in Inge v. Cain, 65 Tex. 75, “what cannot ‘ever be valid,’ is never valid, and what is never valid, is always void.” See, also, O’Brien v. Woeltz, 94 Tex. 148, 154, 58 S. W. 943, 945, 59 S. W. 535, 86 Am. St. Rep. 829. In the latter cited case it was attempted to foreclose a deed of trust lien on what was at the time the deed, of trust was executed the business home of Woeltz but which it was claimed he had abandoned. In refusing the foreclosure, Judge Brown said: “Lot No. 2 in block 4 being the business homestead of Woeltz at the time the deed of trust was made, it was void as to that lot, and it did not become effective after the abandonment of -that lot as a place of business.”

By his fourth proposition, plaintiff in error contends that, if the property was the homestead of defendant in error, still lie was entitled, to a personal judgment for the eost of the paving, and for a reasonable attorney’s fee. The city of Beaumont, under its charter, has the power to pave and otherwise improve its streets, and to assess a share of the cost thereof against the property abutting upon said streets and the owners thereof, and it appearing that the city of Beaumont had regularly ordered the improvement of the street upon which the property involved abutted, and had passed an ordinance by the terms. of which the owner of said property, defendant in error, Bellar, was assessed the sum of $406.25 as-his share of the cost of said paving, and that said ordinance fixed a personal liability upon defendant in error for said sum, and there being no question as to the issuance of the paving certificate and its ownership by plaintiff in error, under the law personal liability did exist upon and against defendant in error, and plaintiff in error was entitled to and should have had judgment against defendant in error, Bellar, for said sum regardless of the homestead question. Article 1105b, Vernon’s Ann. Civ. St.; City of Dallas v. Atkins, 110 Tex. 627, 223 S. W. 170; Storrie v. Cortes, 90 Tex. 283, 38 S. W. 154, 35 D. R. A. 666; Smith Bros. v. Lucas (Tex. Com. App.) 26 S.W. (2d) 1055; Panhandle Const. Co. v. Sikes (Tex. Civ. App.) 42 S.W. (2d) 113; Herring v. City of Mexia (Tex. Civ. App.) 200 S. W. 792 (writ refused); Whitham & Co. v. Donovan (Tex. Civ. App.) 11 S.W. (2d) 197.

But defendant in error insists that, as the property was his homestead and that he so notified both the city and the contractor before the paving was ordered and at the time when the paving was commenced to be constructed that the property was his homestead, and that he was not able to pay for it and would not sign a contract for same, and that he actually refused to sign the contract when it was presented to him, under these circumstances the paving should not have been constructed and he should not be held personally liable for any part of the cost of same. It is undisputed that defendant in error did give such notice and that he did refuse to sign a contract for the paving, and it is also undisputed that defendant in error is an old man, more, than seventy years of ago, and that he has no other property or -means than his said homestead, but nevertheless, the.statute, article 1105b, and the city charter, empowered the city to order the improvements to be made and to assess a certain portion of the cost of same against him, and to fix personal liability against him therefor. So, under the. law, his contention cannot be sustained. Massie v. City of Fort Worth (Tex. Civ. App.) 262 S. W. 837.

Plaintiff in error contends that he should have judgment for attorney’s fee. While the statutes, articles 1090 and 1105b, R. S., and the city charter provide for a reasonable attorney’s fee in cases where collection of paving costs are by suit, still what is a reasonable fee is a question of fact and must be found by the jury or court trying the case. There being no such finding herein, and the evidence, being that only of the interested attorney, in our opinion, not warranting us in finding what a reasonable fee under the facts would be, this part of the judgment will have to be reversed and remanded to the court below for its determination.

That portion of the judgment finding that the property involved was the homestead of defendant in error and that the paving lien sought to be created and foreclosed against same was void and canceling same, is in all things affirmed. That portion of the judgment denying plaintiff in error a personal judgment against defendant in error for the amount of the certificate, $406.25, and interest thereon at 7 per cent, is reversed and here rendered for plaintiff in error. And that portion of the judgment denying plaintiff in error judgment for attorney’s fee is reversed and remanded to the trial court for determination.

Affirmed in part, reversed and rendered in part, and reversed and remanded in part.


author: PELPHREY, C. J.

text:
    BABICORA DEVELOPMENT CO., Inc., v. EDELMAN.
    No. 2718.
    Court of Civil Appeals of Texas. El Paso.
    Oct. 14, 1932.
    Rehearing Denied Dec. 8, 1932.

      S. N. Russell, of El Paso, for appellant.
    W. J. Bryan and E. E. Cameron, both of El Paso, for appellee.
   PELPHREY, C. J.

Appellee instituted this suit against appellant alleging: That on or about July 7, 1925, while he was in the employ of appellant in the Republic of Mexico at a salary of $75 per month and board, he received a serious and permanent injury; that by reason of such injuries, he had a claim and cause of action against appellant; that thereafter appellant agreed with him that if he would not prosecute his claim or sue appellant that it would keep him in its employ for the remainder of his life at a salary of $75 per month and his board; and that he accepted said proposition and continued to work for them until he was discharged subsequent to March 17, 1929. He sued to recover damages for breach of the contract alleged.

Appellant answered by general demurrer, certain special exceptions, and a general denial.

Upon its exceptions being by the court overruled, it filed its third amended answer, in which it generally excepted to appellee’s second amended petition, generally denied the allegations thereof, and further alleged that appellee assumed the risk incident to the horse falling on him and injuring him in 1925,; that the injuries received by him were only slight and caused by his own negligence; that on or about November 1, 1925, he voluntarily quit appellant’s employ and left the ranch of appellant with the express purpose of remaining away permanently, but returned on or about December 25, 1925, and was again employed, at will; that any cause of action, if any, which appellee may have had against appellant accrued more than two years before the filing of his suit and therefore was barred; that the contract as alleged by ap-pellee, not being in writing, was contrary to the statute of frauds; that appellee had not cause of action against appellant for the injuries he received, and therefore any contract made by appellant’s agents to employ him for life was without consideration; that if appellant’s superintendent ever agreed with appel-lee to employ him for life, then such superintendent acted beyond the scope of his authority, and such agreement is not binding on appellant ; and that appellant through its superintendent on or about February 9, 1929, for good and sufficient cause discharged appellee. Appellant also specially denied that any of its agents ever made the agreement alleged by appellee.

Special issues were submitted to the jury which, together with the jury’s answers, are:

“1. Do you find from a preponderance of the evidence, that subsequent to the. 7th day of July, 1925, the plaintiff in good faith believed he had a claim for damages as compensation for personal injuries suffered by him while in the service of the defendant? Answer yes or no.
“In connection with this issue you are charged that one asserts a claim in good faith against another, when same is asserted under an honest belief as to the legal validity thereof, whether same in fact is, or is not a legal demand.
“Answer: Yes.
“2. Do you find from a preponderance of the evidence that subsequent to July 7, 1925, it was contracted and agreed in substance, between the plaintiff and William M. Farris, purporting to act for and on behalf of the defendant, that if plaintiff would not sue the said defendant, that defendant would keep him in its employ for the remainder of plaintiff’s life, at a salary of Seventy Five Dollars ($75.00) per month, and his board, and that plaintiff would work for his -life for such compensation? Answer yes or no.
“Answer: Yes.
“3. Do you find from a preponderance of the evidence that in making the contract aforesaid, if you have found that such contract was made, the said William M. Farris, acted in accordance with authority conferred upon him by the defendant, Babicora Development Company? Answer yes or no.
“In connection with this issue you are charged that the authority of an agent to act for a principal is derived from his principal. In determining whether an agent has the authority to perform an act, or acts, for his principal, regard may be bad to tbe nature and character of the business entrusted to the agent by the .principal. .
“Answer: Yes.
“4. Do you find from the evidence, that pri- or to the 4th day of March, 1929, the defendant, acting by and through its manager and agent William M. Parris, notified the plaintiff that he was discharged from tire service of the defendant, Babicora Development Company? Answer yes or no.
“Answer: No.
“5. Do you find from a preponderance of the evidence, that from on of about March 18, 1929, to on or about the 31st day of January, 1931, the plaintiff acted under the orders and direction of defendant’s agent, William. M. Farris, and at all times held himself in readiness to report for duty at the ranch of the defendant in the Republic of Mexico? Answer yes or no.
“Answer: Yes.”

At the request of appellant the court submitted the following:

“2-a. Do you find from, a preponderance of the evidence that W. M. Parris, defendant’s superintendent, was authorized by defendant at the time in question to employ plaintiff as a cowhand on its ranch in Mexico for the remainder of his life at a salary of $75.00 per month and board, as alleged in plaintiff’s petition? Answer yes or no.
“Answer: Yes.
“2-b. Do you find from a preponderance of the evidence that defendant, through W. M. Parris, its superintendent, did on or about July 7, 1925, agree with plaintiff to employ him as a cowhand on its ranch in Mexico during the remainder of his life at a salary of $75.00 per month and board? Answer yes or no.
“Answer: Yes.”
Upon this verdict the court rendered Judgment that appellee recover the sum of $2,855, and appellant has prosecuted its appeal therefrom to this court.

Appellant contends that the court erred in refusing its motion for a peremptory instruction because: (1) Appellee failed to show by any credible evidence that the appellant or any of its authorized agents ever agreed to employ appellee on appellant’s ranch for life in consideration of his refraining from suing appellant; because there was no evidence showing that W. M. Farris was authorized to employ appellee for life and no evidence that any such agreement by him was ever ratified by appellant; because Farris positively testified that he never agreed to employ appellee for life; that he had no authority to make such an agreement; that no such agreement had ever been made by appellant with any of its employees; that appellee, though he had been associated with the representatives and-other employees of appellant, had never mentioned the existence of the agreement pleaded by him and, as admitted by him, had never made claim upon appellant; and that the acts and conduct of appellee subsequent to March 1, 1929, were so inconsistent with his statement of an agreement for life employment as to render his testimony unworthy of consideration and belief, because the undisputed evidence showed that appellee never had claimed to have a bona fide cause of action against appellant arising out of his injuries ; and because it was shown by the overwhelming weight of the evidence that, if Far-ris ever agreed to employ appellee for life, such agreement was made more than two years before the commencement of appellee’s cause of action and was barred.

While we shall not here attempt to review the testimony of appellee on the questions thus presented, suffice it to say that he testified to having been injured on appellant’s ranch while in the discharge of his duties; that the horse furnished him by appellant reared up when he attempted to turn him to the left; that by reason of such action of the horse he was thrown off the horse, rolled down a steep hill, and was seriously injured by the horse falling on him; that Mr. Farris took charge of him, took him to Babicora, sent him to Dr. Safford in El Paso, and later sent him to California at appellant’s expense in an effort to cure him; that after returning from California where he had been unable to see Mr. Hearst, as requested by Mr. Farris, he was offered a lifetime job bn the ranch by Mr. Farris, if he would not sue appellant for his injuries; that this proposition was made to him by Farris on December 24, 1925, and he went immediately to appellant’s ranch and began work; that he worked on the ranch until March 17, 1929, when he came to El Paso; and that he never had any notice that he was discharged until January 30, 1981.

We have concluded that his evidence was sufficient to make an issue of fact as to the making of the agreement alleged.

Appellant 'has, in its brief, gone to considerable length in a recitation of facts which it contends renders appellee’s testimony unworthy of belief, yet the question of his credibility was one for the jury and we cannot substitute our judgment for theirs as to that question.

The acceptance of a proposal may be by act, 13 O. J. p. 275, and we are of the opinion that appellee’s testimony showing that immediately after the offer was made to him, he went to the ranch, began work, and continued to work there for more than three years, is sufficient to raise the issue of an acceptance by him.

The question of the sufficiency of the evidence to show that Farris had authority to make-the contract is a more serious matter. The authority of Farris having been specially denied by appellant, the burden was on ap-pellee to introduce evidence establishing it. Appellee’s pleading' as to the authority of (Farris, reads: “That said contract of settlement was made with one Eaxris, who was the general manager in charge and control of the' company’s affairs and of its ranch in Mexico, and had authority to make said contract and said contract was made shortly after July 7th, 1025, and was communicated to the Executive Officers of the Company, whose mail (main) office is in .San Francisco, California, and whose names to this plaintiff are unknown, and said.contract was accepted by them, and became and was a binding contract upon said defendant.”

Therefore, if appellee is to recover, it must be by showing that Farris had either the express or Implied power to make the contract sued upon; or that his act in so doing was ratified by appellant.

From an examination of the statement of facts we find no evidence showing either an express authority or ratification. Consequently, the question we are called upon to decide is: Did the making of the contract fall within the implied powers of Farris as general manager or superintendent of appellant’s ranches?

We" think'it may be conceded that Far-ris was the general agent of appellant, and if the implied powers- of a general agent are sufficient to cover this character of act, or if the facts surrounding the agency are sufficient to raise an issue as to the act being within his implied powers, then appellant’s assignment should be overruled. A decision of the question will depend upon a proper understanding of implied or incidental powers of a general agent.

As to such powers, we find in 2 C. .T. § 219, p. 578, the following: “Implied authority is limited to the purposes for which the agency was created and to the acts and duties ordinarily entrusted to such an agent. It is also limited by the usual course of dealing in the business in which he is employed and as agent has no implied power to do acts that are unusual, extraordinary or unnecessary, however advantageous to the principal’s interests the agent may believe them to be; for such acts he should secure special authority from the itineipal.”

And, aajain, in section 222, we find: “A general agency, however, does not import unqualified authority; and the implied power of an agent, however general, must be limited- to such acts as are proper for an agent to do, and cannot extend to acts clearly adverse to the interests of the principal, or for the benefit of the agent personally; and an agent has no implied authority to do acts not usually done by agents in that sort- of transaction, * ⅜; the most general authority is limited to the business-or purpose for which the agency was created and it is not sufficient that the agent’s. act or conduct merely relates to the business of his agency.”

In 1 Meehem on Agency, § 715, it is said:

“It is a fundamental principle in -the law of agency that every delegation of authority ‘general’ or ‘special’, carries with it, unless the contrary be expressed, implied authority to do all those acts, naturally and ordinarily done in such eases, which are reasonably necessary and proper to be done in the case in order to carry into effect the main authority conferred.
“The acts which are deemed authorized under this rule are those which are naturally and ordinarily necessary, which therefore are the usual incidents of the act in question, the acts which the principal presumptively would have included without question if his attention had been called to them, — the acts which the ordinary competent person already familiar with the situation and with the ordinary methods of business, or a similar person having the situation made clear to him, — like a juror, — and considering the matter in the light of everyday experience, would say without serious hesitation formed a natural and ordinary part of the main act authorized.”

The facts here show that Farris was either the general manager or superintendent of appellant’s ranches in Mexico and that he employed and discharged the help on such ranches. Are such facts sufficient to raise an issue as to his implied authority to employ ap-pellee for life under the above-quoted rules? We think not. There is nothing in the record to show that the owners of ranches ordinarily give their injured employees employment for life; therefore, the making of this contract was not such an act as was ordinarily intrusted to the managers of ranches, nor was it in the usual course of- dealing in the ranching business.

Neither do we think it can be said that the making of this contract was necessary and proper to be done in order to carry into effect the main authority conferred in Farris. There is no evidence which would have justified an ordinary competent person, familiar with the situation and with the ordinary methods of business, considering the matter in the light of everyday experience, to say without serious hesitation that the making of this contract by Farris formed a natural and ordinary part of the management of appellant’s ranches.

It is true that the record here reflects that ■Farris had authority to employ the help needed on -the ranches of appellant, but the authority to employ embodies only the right to make contracts of a usual and reasonable sort. 1 Meehem on Agency, § 988.

The following cases support our holding: Fisher v. Roper Lumber Co., 183 N. C. 485, 111 S. E. 857, 35 A. L. R. 1417; Stephens v. Lumber Co., 160 N. C. 107, 75 S. E. 933, 41 B. R. A. (N. S.) 1141; Rua v. Coal Co., 84 W. Va. 47, 99 S. E. 213; General Paint Corporation y. Kramer (C. C. A.) 57 E.(2d) 698; Bohanan v. Boston & M. R. R., 70 N. H. 526, 49 A. 103.

In this case the existence of the agency is admitted and the only question is as to the extent of the authority of that agent;, therefore, the cases cited by appellee do not apply.

It appears from the record that a power of attorney was in existence to Farris from appellant, tut it was not introduced in evidence ; therefore, we have no means of knowing what powers might have been conferred upon him by it. We cannot agree with appel-lee that we should presume, it not being introduced by appellant, that it contained the authority to execute such an extraordinary and unusual contract as the one upon which he depends.

There are numerous other questions raised by appellant which, in view of the disposition we have decided to make, need not be considered.

The evidence failing to raise an issue as ,to the authority of appellant’s agent to make the contract sued upon, the judgment must be reversed, and the cause remanded.


text:
    IGOE v. PEINADO et al.
    No. 2730.
    Court of Civil Appeals of Texas. El Paso.
    Nov. 3, 1932.
    Rehearing Denied Dec. 1, 1932.
    Fryer & Cunningham, of El Paso, for appellant.
    Jones, Goldstein, Hardie & Grumbling, of El Paso, for appellees.
   WALTHALL, J.

Appellees filed this suit against appellant to recover damages, actual and exemplary, for malicious prosecution for theft, in that appellant did falsely and maliciously and without probable cause complain to a justice of the peace that he had good reason to believe, and did believe, that appellees, at the time stated, unlawfully and fraudulently to.ok from him one No. SS3-B top section special lubricating board and set of jars of the value of $4, under such circumstances as to constitute theft. Appellees had been arrested, tried on said charge, and found not guilty.

Appellant defended on the ground that ap-pellees were not arrested without probable cause, denied any malicious intent, alleged that he acted with probable cause; that prior to- appellee’s arrest appellant had consulted Edward C. Wade, a practicing attorney, and to him had made a full, fair, and complete disclosure of all the facts, and that thereafter, and before the issuance of warrants of arrest, said attorney and appellant consulted the assistant county attorney, and to him made a full, fair, and complete disclosure of all the facts, and that, after so doing appellant was advised by the assistant county attorney that probable cause did exist for making the complaints against appellees; that appellant acted solely upon the advice of said attorney and said assistant county attorney.

The case was tried to a jury, and resulted in a verdict and judgment against appellant for $200 actual damages, and $100 exemplary damages, from which this appeal is duly prosecuted.

On special issues submitted, the jury found that appellant was actuated by malice and without probable cause ' in instituting the prosecutions charging appellees with theft; that neither the appellant nor the attorney E. O. Wade made a full, fair, and complete disclosure of all the facts within his knowledge relating to the accusation of theft against appellees to the assistant county attorney, prior to the filing of the charges of theft; that the assistant county attorney advised and directed that said prosecutions be filed.

Appellant duly requested of the court an instructed verdict in his favor, and complains of the court’s refusal to give such charge.

We have fully and carefully’ reviewed the entire record before us, and, while we feel reluctant to reverse the actions and finding of a jury on an issue of fact, we have concluded that the jury’s finding is not supported by the evidence on the second issue submitted, viz. “Do you find from a preponderance of the evidence that the defendant or E. O. Wade made a full,, fair and complete disclosure of all the facts within his knowledge relating to the accusation of theft against the plaintiffs to R. B. Redic, Assistant County Attorney for El Paso County, Texas, prior to the filing of tlie charge for theft? Answer yes or no.”

Without stating the evidence as detailed by witnesses, appellant, Igoe, Attorney E. C. Wade, and Assistant County Attorney Redic on the trial, it is clearly shown without controversy or contradiction that Igoe stated fully to his attorney, Wade, and thereafter Igoe and Wade together stated fully all the material facts, incidents, and circumstances relating to the matter at issue to Redic, the assistant county attorney, who thereupon advised the filing of the complaint charging theft as bailee. After stating in much detail the. matters that had occurred between himself and plaintiffs, Peinado, Igoe was ashed whether he related to Wade what had transpired and what he had just related to the jury, and he said he did, and that Wade advised that he thought the matters related to him showed a violation of the law, and they (the two) had better go see the county attorney, and that they did do so. Igoe said that he explained the whole matter in the presence of Wade and Redic; that he told Redic everything he knew about it, did not hold back anything; showed him the contract; Redic stated it was a plain case of theft, and drew up a complaint and asked witness Igoe to sign it, which he did, and instructed him to go to the justice of the peace and give the complaint to the justice of the peace. The evidence shows no controversy or contradiction as to what Igoe said to attorney Wade or what Igoe and Wade said to Redic, the assistant county attorney.

E. O. 'Wade testified: Said Igoe related to him substantially what he (Igoe) had testified to .on the trial; that Igoe asked his advice. At his advice Igoe went with an officer to ap-pellees’ place of business and made a formal demand for a return of the board. He did so, and returned to his office and reported what took place. Witness and Igoe went to the assistant county attorney’s office, and talked to him; called Redic’s attention to the provisions in the contract; Redic was thoroughly cognizant of the contract; witness related to Redic everything that'had been testified to on the trial; held back no fact known tc witness. Redic advised. Igoe to file the criminal complaint; said he thought the facts justified it; said Igoe came to him for advice, and with the lights before him he advised Igoe to take the course he did. The record does not show that the testimony of attorney Wade was controverted in the least.

R. B. Redic testified: The Peinado case came under his duties as a public prosecutor, and he handled it as such; was sure the lease contract was called to his attention. Attorney Wade and Igoe spoke to him about it before the case was filed. Igoe and Attorney Wade, first one and then the other,. went into the matter, and told him what they claimed to be the facts in the case. Witness stated the facts related to him, and that, after the facts were stated to him, witness was of the opinion that the criminal law had been violated, and advised the filing of the complaint. Witness prepared it, advised the filing of it, and witness told Igoe to sign it. Attorney Wade and Igoe told witness everything they knew about it; witness went into it thoroughly with them. Thought then, and still thinks, appellees were guilty of the offense charged.

We have stated very briefly only the report of the material facts made to witness by Igoe and Attorney Wade. No question is made but that Attorney Wade and Assistant County Attorney Redic were in possession of all the facts known to Igoe before and at the time of filing the complaint. No contention is made in the evidence that any material fact known to Igoe and about which inquiry was made was withheld by Igoe.

It is well established that an adequate defense is shown where one in good faith first made á full, fair, and complete statement to the county attorney of all the material facts known to him at the time, and thereafter had acted upon that official’s advice based thereon. Stein v. Greenebaum (Tex. Civ. App.) 203 S. W. 809, and cases cited. In Sebastian v. Cheney, 86 Tex. 497, 25 S. W. 691, 694, the Supreme Court, in reversing the case, said: “The court of civil appeals [24 S. W. 970] erred in not reversing the judgment of the district court, for the reason that there was no evidence that the plaintiff in error acted without probable cause, and because the advice of the county attorney, if given upon a fair- statement, is a defense against this action for damages.”

Under the evidence as we view it, the court should have given appellant’s requested charge instructing a verdict in his favor.

The case is reversed, and judgment here rendered in favor of appellant.


author: BAUGH, J.

text:
    DOOLEY et al. v. GRAY.
    No. 7716.
    Court of Civil Appeals of Texas. Austin.
    Nov. 10, 1932.
    Rehearing Denied Nov. 30, 1932.
    Critz & Woodward, of Coleman, for appel: lants.
    W. Marcus Weatherred, of Coleman, for ap-pellee.
   BAUGH, J.

Appellants sued appellee for a balance alleged to be due upon a $2,000 note, dated January 8, 1925, due January 1, 1926, credited with payments of $1,500 on the principal, and with interest to January 1, 1927, executed by appellee, payable to D. L. Snodgrass, and by him indorsed to his sister, appellant here, on July 6, 1925. Appellee defended on the ground that this note was in renewal and extension of notes formerly executed by him to P. L. Snodgrass, father of D. E. Snodgrass, for borrowed money; that P. L. Snodgrass had owed appellee $500 for many years and had agreed to credit said notes with that sum upon final settlement; that, after his death, D. D. Snodgrass, executor of the last will of P. L. Snodgrass, at the time of such renewal, agreed to give such credit when such note was paid. The case was submitted to a jury upon special issues, in response to which they found as follows:

(1) That P. L. Snodgrass owed appellee $500.

(2) That P. L. Snodgrass had agreed with appellee to allow him credit for said sum on the note executed to P. L. Snodgrass.

(3) That D. L. Snodgrass, as executor of the estate of P. L. Snodgrass, deceased, had made the same agreement as to the note sued upon.

(4) That, when appellee made the last payment of $500 and interest to D. L. Snodgrass on January 4, 1927 ($1,000 and interest to January 8, 1926, having been paid by appel-lee on December 12, 1925), D. L. Snodgrass then agreed to allow appellee a credit for said $500 which his father owed to appellee, in full settlement of the note sued upon.

Judgment was accordingly rendered that appellant take nothing, from which she has appealed.

[ I -4] Appellant’s first contention is that the pleadings and proof undertake to vary by pa-rol a written contract between the parties. This contention is not sustained. The general rule is elementary that parol evidence is not admissible to vary or contradict the terms of a written instrument, and that such rule applies to bills and notes. But it is likewise well settled that- a parol agreement made at the time of the execution and delivery of a written instrument, or afterwards, to apply certain credits as payment thereon, or to show payments other than those indorsed on the instrument, is enforceable and may be shown by parol. Such matters relate to the performance:of the contract, and do not vary nor contradict-it. Nalle v. Gates, 20 Tex. 315 ; Allen v. Herrick Hdw. Co., 55 Tex. Civ. App. 249, 118 S. W. 1157; Rahe v. Yett (Tex. Civ. App.) 164 S. W. 30; Barcus v. J. I. Case Threshing Machine Co. (Tex. Civ. App.) 197 S. W. 478; Phipps v. Hemphill (Tex. Civ. App.) 267 S. W. 310; Pope v. Hennessey (Tex. Civ. App.) 38 S.W.(2d) 834; 22 C. J. 1210; 6 Tex. Jur. 960; 17 Tex. Jur. 847. In the instant case it also appears that a part of the consideration for the execution of said note for $2,000 was that appellee should he given credit, when it matured, for the $500 that F. L. Snodgrass owed him.

Appellant next contends that the $500, being an open account due by F. L. Snod-grass to appellee for an automobile purchased by Snodgrass from appellee’s son in 1918, was long since barred by limitation, and that appellee could not claim same as a credit. With this we do not agree. This indebtedness of F. L. Snodgrass to appellee was never denied nor repudiated, but appears to have been recognized by F. L. Snodgrass during his lifetime and by D. L. Snodgrass, his executor, after his death. While appellant contends that such debt was due W. A. Gray, the son of appellee, it is not controverted that appellee furnished his son the money with which to purchase the automobile sold to Snodgrass, that the $500 debt was considered and understood by all parties as being due to appellee himself, and was so recognized and dealt with both by F. L. Snodgrass and his executor, D. L. Snodgrass. Appellant is not claiming as an innocent purchaser of the note in question, but only such rights as accrued to the payee of the note. Under such circumstances we think both F. L. and D. L. Snodgrass would clearly have been estopped to assert that the debt was due to W. A. Gray, and not to his father, appellee here, and that appellant is likewise so estopped. Testimony therefore showing these matters was clearly admissible.

Nor would limitation apply to the debt. While the debt of Snodgrass to appellee was clearly barred by limitation as a separate obligation when the note sued upon was executed, the jury found that both at the time of the execution of the note and on the date of the last payment thereon in January, 1927, the payee recognized such debt and agreed to give appellee credit for it on the note. That a barred debt is sufficient consideration for a new promise to pay is now settled. Shearon v. Henderson, 38 Tex. 246; Central Nat. Bank v. Latham & Co. (Tex. Civ. App.) 22 S.W. (2d) 765, 768; 6 Tex. Jur. 652. Agreement to give appellee credit for it was tantamount to a promise to pay it, and binding upon the payee of the note. When appel-lee had paid all but $500 on the note sued upon, that, under the agreement found by the jury to have been made, discharged the note in full.

Appellant’s propositions 9 to 19 relate to the admission of testimony of W. A. and Grier M. Gray with reference to the transactions involved, to conversations they had with Snodgrass, and to the issues submitted to the jury. It is not necessary to discuss them in detail. The objections to the evidence were based chiefly upon the grounds that it tended to vary by parol the written instrument or that the credit claimed was barred by limitation. These matters we have discussed above. Other objections, without discussing them here, relate rather to the credibility of the testimony than to its relevancy or admissibility, and were a matter for the jury to pass upon.

Finding no error in the record, the judgment of the trial court is affirmed.

Affirmed.


text:
    R. B. GEORGE MACHINERY CO. v. CITY OF MIDLAND.
    No. 2727.
    Court of Civil Appeals of Texas. El Paso.
    Oct. 27, 1932.
    Rehearing Denied Dec. 1, 1932.
    Woodward & Coffee, of Big Spring, and W. M. Harris, of Dallas, for plaintiff in error.
    Haag & Stubbeman, of Midland, for defendant in error.
   PELPHREY, C. J.

In November, 1928, this cause was tried in the district court of Midland county, and judgment rendered for defendant in error.

Plaintiff in error prosecuted an appeal to this court, where the judgment was affirmed. 20 S.W. (2d) 107. Later a writ of error was granted by tbe Supreme Court, and tbe judgment reversed and tbe cause remanded to the trial court. 29 S.W.(2d) 966. Tbe mandate of tbe Supreme Court was issued January 19, 1931, and filed in tbe district court of Midland county on January 22, 1931. Tbe next term of tbe district court of Midland county began on February 2, 1931, and continued for four weeks. On February 2d, the trial court set this cause for February 4th. Plaintiff in error failed to appear on said date, and the trial court, upon motion of defendant in error, dismissed tbe case for want of prosecution. On April 22, 1931, plaintiff in error filed its motion to have tbe case reinstated upon tbe docket of tbe court. On May 9,1931, plaintiff in error filed another pleading, termed an office brief, in which it prayed that the motion theretofore filed by it be considered as a plenary suit in equity, and that it be given the right to. proceed to trial upon tbe issues raised in its motion or plenary suit in equity as well as upon tbe merits in tbe original action. Thereafter, on October 1, 1931, plaintiff in error filed its first amended petition, verified by one of its agents, with a verified account attached thereto. On the same date, defendant in error filed its first amended answer, adopting tbe allegations of its original answer ; said answer also containing an exception to plaintiff in error’s amended petition, a general demurrer, and general denial to plaintiff in error’s motion to reinstate, and a special answer to plaintiff in error’s motion. Later both parties filed supplemental pleadings.

Tbe cause was submitted to a jury upon tbe following special issue: “Do you find from a preponderance of the evidence, that is, the greater degree or weight of credible testimony before you, that Mr. W. M. Harris, attorney for.tbe Plaintiff, R. B. George Machinery Company, used due diligence in prosecuting plaintiff’s suit at tbe February, 1931, term of tbe District Court of Midland County, Texas?”

Tbe court then instructed the jury that, if they bad answered tbe above issue in the affirmative, tó return a verdict in favor of plaintiff in error and against defendant in error on its cross-action.

The jury having answered tbe issue in the negative, tbe court rendered judgment dismissing plaintiff in error’s suit and against defendant in error on its cross-action. This appeal has been prosecuted from such judgment.

Plaintiff in error first contends that a judgment of dismissal, under the facts here, was unjustified without actual notice to it of the reinstatement of the case on the docket and of the dismissal prior to the expiration of the February term of court. Articles 2284 and 2285, Revised Statutes, provide that “Where a cause shall be removed by appeal or writ of error to the appellate court, the cause shall remain or be replaced on the docket to await die mandate of the appellate court,” and that “upon the return of the mandate, if the judgment of the court below be reversed by the appellate court, the cause shall stand for trial in its order on the docket.”

We find nothing in these statutes which calls for any form of notice to any party to the suit, before the court can proceed to a disposition of the case; therefore the contention advanced by appellant must be overruled. In fact, as we interpret them, they refute the necessity of notice.

In the case of Underhill et al. v. Thomas et al., 24 Tex. 283, the Supreme Court had a sim ilar question before it. In that case two of the several defendants had not been served with process at the time judgment by default was rendered against all defendants. A writ of error was sued out, and the judgment of the trial court was reversed and remanded as to all defendants. Thereafter the plaintiffs dismissed their suit against the two defendants who had not been served, and took judgment by default against those who had. The mandate was filed in the trial' court after the term began, and on the following day the default judgment was taken.

Two of the defendants prosecuted a writ of error from such judgment, assigning error to the rendition of a judgment against them, without notice, after the filing of the mandate of the Supreme Court.

The court said: “The plaintiffs must be held to have known that their cause was disposed of in the Supreme Court, and was therefore liable to be sent into the District Court for its action. Upon them, process had been served; and when the mandate was filed in the District Court, the case stood as it had done before the first judgment was rendered. They were in court, through the process served on them. They were „at liberty to' make any defence which they had. Not having made any, the plaintiffs below had a right to discontinue as to those not served with process; and take their judgment by default as to those served.” See, also, Fort Worth Mut. Benev. Ass’n v. Petty (Tex. Civ. App.) 293 S. W. 290.

The record here reveals that plaintiff in error’s counsel knew that the case had been reversed and remanded by the Supreme Court, and therefore will be held to have known that it might be sent into the district court for its action at any time. He was also charged with knowledge of the terms of the district court of Midland county.

If, as the trial court evidently correctly decided, plaintiff in error was not entitled to notice of the filing of the mandate in the trial court, then there remained only a question as to whether plaintiff in error’s counsel had' been diligent in looking after the suit in the district court.

The record shows, and plaintiff in error admits, that he did nothing toward the prosecution of the suit; therefore the judgment of which plaintiff in error now complains was the only judgment the court should have rendered under the facts presented.

There are several other errors assigned, which, in view of our holding that plaintiff in error was not entitled to notice, and the record being as it is, we think call for no discussion.

The judgment of the trial court is therefore affirmed.


author: DESLIE, J.

text:
    FORT WORTH & R. G. RY. CO. v. ROSS et al.
    No. 1013.
    Court of Civil Appeals of Texas. Eastland.
    Nov. 4, 1932.
    Rehearing Denied Dec. 2, 1932.
    Chandler & Keith', of Stephenville, and Hiner & Pannill and Goree, Odell & Allen, all of Fort Worth, for appellant.
    Oxford & Johnson, of Stephenville, for ap-pellees.
   DESLIE, J.

This is the third appeal of this case. The opinions on the former appeals will be found in (Civ. App.) 18 S.W.(2d) 246, and (Civ. App.) 37 S.W.(2d) 826. A full statement of the nature of the case may be found in those opinions. The parties will be referred to as in the trial court.

The trial below resulted in a judgment for the plaintiffs (the wife and minor child of deceased), onj the ground that a 32¾2 mile per hour rate of speed by the train at the time of its collision with the automobile of the deceased was negligence under the circumstances and surrounding conditions, proximately resulting in his death and consequent damages to plaintiffs.

The first point presented for reversal of the judgment is the refusal of the trial court to direct a verdict for the defendant. This the defendant claimed on the grounds, (1) because the testimony showed no negligence upon the part of the defendant; (2) if negligence be shown, same was not the proximate cause of the injuries; and (3) that in any event the deceased was guilty of , contributory negligence.

After a careful consideration of the testimony, this court finds itself unable to sustain the defendant’s point on either ground. Although a new witness testified on this trial, it is not believed that the testimony as a whole differentiates the instant case materially from what it was on the former trial. We cannot agree with the defendant’s contention that the proof failed to establish any negligence on the part of defendant approximately causing the injury alleged. Unquestionably the testimony raised the issue as to the excessive rate of speed at which the train was running at the time of the collision. There was evidence pro and con on this issue, and it therefore became a question for the jury to determine whether or not, under all the circumstances existing at the time and place where the injury occurred, the rate of speed was negligent. Louisiana Ry. & Nav. Co. of Texas v. Loudermilk (Tex. Civ. App.) 12 S.W.(2d) 824; Louisiana Ry. & Nav. Co. of Texas v. Cotton (Tex. Civ. App.) 1 S.W.(2d) 393; St. Louis S. W. Ry. Co. of Texas v. Lewis (Tex. Civ. App.) 297 S. W. 896; Id. (Tex. Com. App;) 5 S.W. (2d) 765; Texas & N. O. Ry. Co. v. Cunningham (Tex. Civ. App.) 16S S. W. 428 ; Smith v. Galveston-Houston Electric Ry. Co. (Tex. Com. App.) 277 S. W. 103; Texas & P. Ry. Co. v. Tucker, 48 Tex. Civ. App. 115, 106 S. W. 764; 52 C. J. p. 468, § 2043.

In view of the history of this litigation, there is no necessity for an extensive statement of the testimony. As bearing upon both the alleged primary negligence of the defendant and the contributory negligence of the deceased at the time of his death, suffice it to say that the plaintiff’s testimony, in substance, presents that the deceased Miller Sageser, on December 7, 1927, drove his Eord car at the rate of 10 or 12 miles per hour on to the track of the defendant at a public railroad crossing in the town of Stei>henville. There the defendant’s train collided with the said car, resulting in Sageser’s death. That crossing was situated at a well-settled portion of the outskirts of tho town, and the crossing was commonly used by pedestrians and vehicles. According to the jury verdict, the train, at the time of the collision, was running at a negligent rate of speed.

At the time of his death, Sageser and wife resided in the country. On the day of the accident he had come to Stephenville and was returning, accompanied by his sister*. The minor child, who is one of the plaintiffs, was born that night. The weather was freezing, and a brisk north wind was blowing. The curtains of the car were up, and had the usual isinglass openings to the side. The windshield was that ordinarily found in a Ford car. The sister was an adult woman, sitting to the side from which the train approached. There is some testimony to the effect that, before passing on to the track, the deceased looked in the direction from which the train was coming, and that the automobile seemed to pass over rough ground just as it went on to the right of way. This is presented as having 'a tendency to distract Sageser’s attention and impede his progress as he drew in front of the approaching train. To what extent, if any, the deceased was hindered or obstructed in his view of tho approaching train, its distance from him, and its speed, by the situation and circumstances surrounding him at the time he passed on to the track, cannot be known, except as those circumstances have been considered in connection with others by the jury in passing upon the care he exercised on that occasion. The testimony was further to the effect that Sageser was doubtless acquainted with the crossing, having resided in that section of country for many years, and that he was familiar with the scheduled time at which the train passed that point. There was testimony that the train was fifteen or twenty minutes late on that occasion. From this the deduction is made that, had the train been on scheduled time, it would have ■passed before Sageser reached and endeavored to cross the track. The testimony also' disclosed that the train hit the car behind the hub of the hind wheel, thus indicating a one-half turn more of the wheel would have put the car and the driver on safe ground. To what extent these circumstances and considerations determine the conduct of the deceased at the time of the accident, or to what extent they would have determined the conduct of an ordinarily prudent person under the same circumstances in endeavoring to pass over the crossing, is undoubtedly a question of fact to be decided by the jury, and this court is of the opinion that it would not be warranted in holding that no infer-, enee but one of negligence can be drawn from the facts and circumstances attending and immediately preceding the tragedy which resulted in the death of Miller Sageser. Tho above circumstances, in connection with others shown by the record, support this conclusion.

Further, it is a general rule in this state that the failure of one about to go over a public railroad crossing to look and listen for an approaching train does not, of itself, constitute negligence as a matter of law. Trochta v. M. K. & T. Ry. Co. (Tex. Com. App.) 218 S. W. 1038. However, the issues as to whether the deceased listened, kept proper lookout, etc., were found in favor of the plaintiffs, but the point is, it is not negligence per se for a person to go upon a public railroad crossing. Again, in Freeman v. G., H. & S. A. Ry. Co. (Tex. Com. App.) 285 S. W. 607, 609, it is said, in disposing of a crossing case: “Defendant’s special issue No. 12 was further erroneous in that it assumed that it was the duty of the plaintiff to stop his automobile, upon discovering the approach of the train, regardless of any cirj-eumstance whatsoever; that is, regardless of the distance of the train, its speed, or of his proximity to or distance from the crossing. In determining what course to pursue a reasonably prudent man would be governed largely by these circumstances. The train might be at such distance when discovered and the plaintiff at such proximity to the crossing as that there would be little or no risk whatever in proceeding, and the chance might be one that any prudent person would take. Unless an act is made negligent by statute or unless it is so plainly such thaij reasonable minds cannot differ about it, tbe question always is for the jury. Barron v. Ry. Co., supra [(Tex. Com. App.) 249 S. W. 825]; * * Pearson v. T. & N. O. Ry. Co. (Tex. Com. App.) 238 S. W. 1108.”

In this connection attention is also called to the opinions in Lancaster v. Browder (Tex. Civ. App.) 243 S. W. 625; Id. (Tex. Com. App.) 256 S. W. 905; Texas Electric Ry. Co. v. Texas Employers’ Ins. Ass’n (Tex. Civ. App.) 9 S.W.(2d) 185, 187; Galveston, H. & S. A. Ry. Co. v. Leifeste (Tex. Civ. App.) 8 S.W. (2d) 704, 765, and numerous authorities cited in tlie opinion of this court on the former appeal. Further, our views on the questions above discussed are the same as those entertained by this court on the former appeal, and which were presented for review to the Supreme Court and left undisturbed.

Other assignments attack the court’s •charge on the burden of proof. It reads as follows: “The burden of proof is upon the defendant to establish affirmative answers to special issues Nos. 6 to 23, inclusive,. by a preponderance of the evidence.” The exception to this charge raises two points: First, because the court should not have placed the burden in the above respects on the defendant at all, since the plaintiff, both by pleadings and proof, raised the issue of contributory negligence, and the burden was therefore on the plaintiffs to excuse such negligence on the part of the deceased, or to prove that the deceased was not guilty of negligence in driving his car on to the defendant’s track at the crossing; and, second, that the charge is erroneous, in that it is calculated to lead the jury to believe that they were to consider only the testimony offered by the defendant on the issue of contributory negligence.

In support of the first contention, the appellant cites and relies 'on the following eases: Texas Traction Co. v. Wiley (Tex. Civ. App.) 164 S. W. 1028; Gulf, C. & S, F. Ry. Co. v. Scott (Tex. Civ. App.) 27 S. W. 827; International & G. N. Ry. Co. v. Lewis (Tex. Civ. App.) 63 S. W. 1001; Missouri, K. & T. Ry. Co. of Texas v. Jolly, 31 Tex. Civ. App. 512, 72 S. W. 871. If these authorities state a correct rule of law, it is clear that the rule has no application to this case, for, as we interpret the pleadings and the testimony, the plaintiffs make no such case against themselves. The brief points out no specific testimony or pleading whatsoever that would establish such ease against them. However, we have not rested the matter on the consideration of briefing, but have examined the plaintiffs? pleadings and testimony, and do not believe that a fair construction of them would warrant the conclusion that the plaintiffs have in either instance presented a case of contributory negligence on the part of the deceased.

However, if we be in error in the immediately preceding conclusions, then we are of opinion that the rule of law contended for by the appellant does not obtain in this state, and has not so obtained since the opinion by our Supreme Court through Chief Justice Gaines in the case of Houston & T. C. R. Co. v. Anglin, Jr., 99 Tex. 349, 89 S. W. 966, 968, 2 L. R. A. (N. S.) 386. The same point was made in that case, and in disposing of it the Supreme Court said: “It is also insisted that the evidence of the plaintiff and of his own witnesses exposed him to a suspicion of contributory negligence, and that therefore the burden was upon him to show that he was not guilty of such negligence. That rule was at one time recognized by this court as the law of this state, but it is now definitely settled that in every case in which the plaintiff seeks to recover of defendant on the ground of negligence of the defendant, and the defendant relies upon the defense of contributory negligence, in order to maintain that defense, it must appear by a preponderance of the evidence that the plaintiff was guilty of such negligence.”

That authority has been followed in the following cases:. Fort Worth & D. C. Ry. Co. v. Lovett (Tex. Civ. App.) 263 S. W. 643; Louisiana Ry. & Nav. Co. of Texas v. Cotton (Tex. Civ. App.) 1 S.W.(2d) 393; Smith v. Dallas Ry. Co. (Tex. Civ. App.) 8 S.W.(2d) 548; Houston Belt & Terminal Ry. Co. v. Davis (Tex. Civ. App.) 19 S.W.(2d) 77, 81; Fort Worth Gas Co. v. Cooper (Tex. Civ. App.) 241 S. W. 282; Houston & T. C. Ry. Co. v. Harris, 103 Tex. 422, 128 S. W. 897; Galveston H. & S. A. Ry. Co. v. Pennington (Tex. Civ. App.) 166 S. W. 464, 468.

Further, the form of the charge in other respects stands approved by the authorities in this state. Houston & T. C. Ry. Co. v. Stevenson (Tex. Com. App.) 29 S.W.(2d) 995; Regester v. Lang (Tex. Civ. App.) 83 S.W.(2d) 230, 233; Reed v. Bates (Tex. Civ. App.) 32 S.W.(2d) 216;. Texas Elec. Ry. Co. v. Texas Employers’ Ins. Ass’n (Tex. Civ. App.) 9 S.W.(2d) 185, 189 ; Maryland Casualty Co. v. Boverie (Tex. Civ. App.) 37 S.W.(2d) 310, by this court, and the many authorities therein cited.

The defendant requested six special issues covering various phases of the case. They were refused by the court and the points preserved, and are here briefed together under a general statement, accompanied by no authorities on either particular point. We have considered the points presented, and are quite certain that the matters suggested by these special issues were either fairly embraced in the court’s issues to the jury or they pertained to merely evidentiary matters. In either event, no error is disclosed. The point is overruled.

In the next point the defendant complains that the issues pertaining to damages, etc., amount to a prejudicial comment upon the weight of the evidence. We have carefully examined this contention, and we do not believe that said issues in any degree assumed as true and in favor of the plaintiffs any issue of fact. Certainly this is true when taken in connection with other issues and the charge as a whole. Morten Inv. Co. v. Trevey (Tex. Civ. App.) 8 S.W.(2d) 527, 539, 549. The proposition is overruled.

For the reasons assigned, the judgment of the trial court is affirmed.