ed, and the judgment of the trial court is in this case. Nothing said in Denman v. Savall things affirmed. Affirmed. CONNER, C. J., not sitting. On Motion for Rehearing. ings Association (No. 8744) 200 S. W. 1109, recently decided by this court, not yet officially published, was intended to express any views in conflict with the conclusion set forth hereinabove. [11] It is further claimed that we erred in holding that appellant's cause of action was barred, because the record does not include the original petitions filed in the two suits which were later consolidated, and that there is no evidence as to when these suits BUCK, J. [10] We are of the opinion that article 5695, Vernon's Sayles' Tex. Civ. Stats. as amended by the 33d Leg. 1913, First Called Sess. p. 39, does not affect the question of limitation involved in this suit. In the first place, the caption were filed. The transcript contains an agreeof the amended article precludes the idea ment that only the amended petitions and that such was the purpose of the Legislation to withdraw its announcement of ready answers shall be included. In plaintiff's moture. Said caption reads as follows: "An act to amend article 5695, Revised Civil Statutes of Texas, 1911, as amended by chapter 123, Acts of the Thirty-Third Legislature, relating to the renewal and extension of liens that are secured by deeds of trust, mortgages or original vendor's lien on real estate, and providing that said article shall hereafter read as follows, and declaring an emergency.' "suit was instituted February 19, 1915." The and postpone the hearing it is stated that certificates were dated November 26, 1912. One installment was due 30 days thereafter, which was the installment claimed to have been paid in February, after maturity, and the default in which payment upon maturity set in motion limitation. It is insisted that the certificate here de clared on contains stipulations, and the charter of Ft. Worth contains provisions inconsistent with the conclusion that it was intended that upon nonpayment at maturity of any installment the entire debt should become due. We considered these provisions and stipulations on original hearing, and concluded that in the face of the positive stipulation in the certificate contained, based on the charter provision to the same effect, we were not authorized in concluding that such stipulation did not require the maturity of all unpaid installments upon default of the opinion that, merely because the decision in Building & Loan Ass'n v. Stewart, 94 Tex. 441, 61 S. W. 386, 86 Am. St. Rep. 864, cited in our opinion, was predicated upon a stipulation in a contract prepared by the party which sought to evade the running of the statute did not justify us in distinguishing this case from that. Three classes of liens are mentioned, to wit, deeds of trust liens, mortgage liens, and vendors' liens. Certainly the character of lien here sought to be fixed cannot be held to come within any one of these classes. It is a statutory lien and in the nature of a tax lien, for the municipality's power of assessment is based upon the theory of benefits conferred upon the property assessed. 1 Page & Jones on Taxation by Assessment, P. 16; 37 Cyc. 712, 713. Since no purpose is expressed in the caption of the above bill to extend liens other than those mentioned, a construction of the act which would seek to have it include liens other than those men-in payment of any one. We were further tioned would be violative of article 3, § 35, of the state Constitution. In the second place, article 5695, before amendment and since, refers to the debts mentioned "in either (emphasis ours) of the foregoing articles," etc. Strictly speaking, "either" refers to one of two things mentioned. Standard Dict. The two foregoing articles, to wit, articles 5693 and 5694, refer to and treat of deeds of trust or mortgage liens and vendors' liens. Therefore it may be reasonably said that the intention of the Legislature was to include in the purport and operation of the amended article only the classes of liens mentioned in articles 5693 and 5694. It further appears that said two last mentioned articles refer to causes of action against which the four-year statute of limitation is a bar. Not the two years statute. It has been held as to an assessment lien like this that the two-year statute applies. O'Connor v. Koch, 9 Tex. Civ. App. 586, 29 S. W. 400; Glover v. Storrie, 43 S. W. 1035; Beaumont v. Russell, 51 Tex. Civ. App. 351, 112 S. W. 950; Tex. Bith. Co. v. Henry, 197 S. W. 221. Hence we are of the opinion that article 5695, as amended by the Thirty-Third Legislature will not operate to extend the lien in Appellant's counsel calls our attention to language contained in our original opinion which he feels may, unintentionally on our part, be construed by some as an implied criticism of counsel for one or both parties. In using the language there was, of course, no such intention, for every member of this court has the utmost confidence in the personal honor and professional integrity of counsel for both parties. But for fear that the expression used may convey an unintended suggestion, we will have withdrawn from the published opinion the language to which our attention is called. We have carefully considered appellant's somewhat lengthy motion, and the able insistent argument thereon, yet we do not find ourselves able to disturb the judgment rendered. The motion for rehearing is overruled. Motion overruled. she was very feeble; that in spite of said CHICAGO, R. I. & G. RY. CO. v. TAYLOR. request, defendant's agents started said (No. 8790.) (Court of Civil Appeals of Texas. Ft. Worth. March 9, 1918. Rehearing Denied April 30, 1918.) 1. WITNESSES TIONS. train before plaintiff was seated, and started it with a jerk, causing plaintiff to be thrown against the end of a seat in said coach and onto the floor, and caused her to be injured in her shoulder, arm, side, neck, and otherwise. In addition to defendant's plea of general denial, it specially pleaded settlement, and that in consideration of the sum of $50 plaintiff had executed a release to defendant of all claims and liabilities by reason of said injuries. By supplemental petition, plaintiff alleged, in general terms, that the settlement made and release executed was A question, "Did you * sign this document *** upon the representations made by D.?" and a question, "Now Mrs. T. state to the jury whether or not at the time signed this agreement or voucher, you relied upon the representations and statements made by the claim agent, and the representations made by Dr. F. with reference to the injuries," were leading and suggestive. 2. APPEAL AND ERROR 1048(3)-PREJUDI- void for the reason that same was procured CIAL ERROR-LEADING QUESTIONS. and obtained by defendant through its agents Where defendant's doctor told plaintiff her injuries were slight and advised her to settle, and employés by false and fraudulent repand defendant's claim agent advised her to set-resentations, and further pleads as follows: tle because her injuries were slight, admission of answers to such leading questions, could not be held to be harmless, where there was no other testimony tending to show the same facts. 3. RELEASE 17(2)-DAMAGES TO PERSONREPRESENTATIONS BY PHYSICIAN. Advice of a physician of a railroad to settle, or his false representations as to extent of injuries, are not grounds for setting aside a release, where the physician had nothing to do with obtaining releases and the claim agent had no knowledge of the false representations and advice, or did not knowingly take advantage of the injured person's confidence in the physician. 4. TRIAL 260(2) - INSTRUCTIONS RE "That Dr. P. C. Funk, who is now and was at the time of said injuries and at the time of said purported settlement a local physician of the defendant company at Bridgeport, Tex., waited upon and treated the plaintiff for the injuries set forth in her original petition herein, and the said Dr. Funk falsely and fraudulently represented and stated to the plaintiff that her injuries were not serious, and that the same were slight and temporary, and that she was suffering from other ailments than said injuries, and advised and stated to the plaintiff that she had better settle with the defendant for whatever sum she could get, and the defendant's claim agent, who procured said settlement with the plaintiff, falsely and fraudulently repeated said statements of the said Dr. Funk, and urged cept the sum of $25 for the injuries which she that as a reason why the plaintiff should achad received, and stated that he would pay no and believed the said representations of the more than that, and the plaintiff relied upon said Dr. Funk, and at the said time had conAction by Mrs. E. J. Taylor against the fidence in the said Dr. Funk, and, so relying Chicago, Rock Island & Gulf Railway Com- and believing his said statements as above set pany. Judgment for plaintiff, and defend-settlement, and that the same is therefore void forth, she was thereby induced to make said ant appeals. Reversed and remanded. and invalid." QUESTS. Where all the issues and principles of law are contained in the general charge, it was proper to refuse requested instructions. Appeal from District Court, Wise County; F. O. McKinsey, Judge. McMurray & Gettys, of Decatur, and Lassiter & Harrison, of Ft. Worth, for appellant. Taylor, Allen & Taylor, of Henrietta, and Ratliff & Spencer, of Decatur, for appellee. BUCK, J. The appellee sued the appellant for personal injuries alleged to have been received by her while attempting to board appellant's train at the town of Saginaw on March 2, 1916. She alleged that she and her grown son had purchased tickets over appellant's line of railway from Saginaw to Bridgeport; that she was 76 years old and was weak and feeble in body at said time, which said fact was well known to employés of appellant operating said train, and especially to the conductor and brakeman; that her son was carrying two suit cases and other baggage, and could not assist plaintiff in getting on said train, and that he asked the conductor and brakeman, who were assisting the plaintiff in getting up the steps and onto the platform, not to start said train for a few minutes until the plaintiff could walk into the coach and be seated, as The cause was submitted to a jury under a general charge, and resulted in a verdict in favor of plaintiff in the sum of $1,500, upon which was credited the $50 paid under the alleged settlement. From this judgment the defendant has appealed. Appellant's brief contains nine assignments of error, the first two directed to the overruling of the objections made by appellant to certain questions propounded to plaintiff while a witness in the case, which were claimed to be leading and suggestive. Assignments 3, 4, 5, and 6 complain of the refusal to give the requested special charges; the seventh and eighth complain that the verdict and judgment was not supported by the evidence, and the ninth urges that, in any event, the amount of the verdict is grossly excessive and not supported by the evidence. [1] While plaintiff was testifying as a witness, her counsel asked her the question: document, the voucher, upon the representations "Did you finally agree and finally sign this made by Mr. Davidson, the claim agent, as to what Dr. Funk had said?" Again counsel asked her: "Now, Mrs. Taylor, state to the jury whether or not at the time you accepted this $25, and at the time you signed this agreement or voucher, you relied upon the representations and statements made by the claim agent, and the representations made by Dr. Funk, with reference to the injuries." To both of these questions appellant objected on the ground that they were leading and suggestive, and, the witness having answered in the affirmative as to each, appellant excepted. We think there can be no question about the questions being leading and suggestive, and that the court erred in overruling the objections. that those of a stranger would have, for the reason that in making them he did not represent the defendant with respect to the settlement. Thompson on Corp. § 6324; Bank v. Cruger, 91 Tex. 451, 452, 44 S. W. 278. The mere fact, therefore, that he was the agent of defendant for some purposes does not make his representation available as a reason for avoiding a contract which he did not make." In this opinion it is further said: "It is also true that, if it were shown that defendant or its claim agent used the physician as an instrument to deceive plaintiff as to his condition, in order that an advantageous settlement might be made, or that the claim agent and the physician acted together in so procuring the release, the contract would be affected by the physician's representations as fully as if he had been the only agent employed in the 36 Tex. Civ. App. 251, 81 S. W. 1189); and it transaction (I. & G. N. Ry. Co. v. Shuford, may be that, if the claim agent in effecting the settlement knew and took advantage of the state of plaintiff's mind, caused by deception practiced by the doctor, the result would be the same." [2, 3] The appellee urges that, even if there was error in the ruling of the court, such error is harmless, and does not require reversal, because the witness had theretofore testified at length with reference to the settlement between her and Mr. Davidson actThe evidence in the instant case shows ing for appellant, and with reference to the reasons and representations which induced that Dr. Funk, according to the plaintiff's her to accept the settlement offered and to testimony, prior to the time of the purported execute the release; that at most the answer settlement between the railway company and of the witness to the two questions objected plaintiff, made statements to plaintiff, with to constitute but a repetition of what she reference to her condition, to the effect that had already testified, and that no objection her injuries were slight, and that she would was made on that ground. In G., C. & S. F. soon recover therefrom, and that most of Ry. Co. v. Huyett, 99 Tex. 630, 92 S. W. 454, her trouble was from causes other than her 5 L. R. A. (N. S.) 669, the Supreme Court fall while a passenger on defendant's train. held that evidence that the physician in the These statements which the plaintiff claimed employ of plaintiff's master made misrepre- Dr. Funk made to her were in effect even sentations to plaintiff, who had been injured stronger as to the slightness of her injuries through the negligence of defendant, as to than the statement that the plaintiff claimed his condition, and that on an occasion not the claim agent imputed to Dr. Funk. It is shown to have had any connection with the not shown in the evidence, and we do not think it is seriously claimed by appellee, settlement made by plaintiff the physician, that Dr. Funk had anything to do with the when asked by plaintiff as to the propriety settlement or adjustment of claims against of his making a settlement replied that a the appellant company. He was employed a prolonged lawsuit, did not warrant a find- as the local physician or surgeon at Bridgeing that the physician was employed to make eral practice there. He had been called in, the representations, or that the master or at the instance of Mrs. Taylor herself, to the agent who made the settlement knew of treat her, after her arrival at Bridgeport the representations, as against uncontradict- and after she had been taken to the house ed testimony to the contrary; and that an of her daughter, Mrs. W. W. Shelton. He employé may not have his settlement with visited her some three times, and then, sevhis employer for personal injuries set aside eral days having elapsed, Mrs. Taylor sent for misrepresentations as to his condition for him again. He made some eight visits of health by a physician in the master's altogether. Mr. Davidson testified that he employ, the physician having no authority did not see Dr. Funk between the date of in relation to the settlement or to make the Mrs. Taylor's injury and the date of settlerepresentations, the representations not hav-ment. Dr. Funk testified to the same effect. ing been made in the transaction in which the settlement was made, and the master or the agent who made the settlement having no knowledge of the representations. There the court said: reasonable settlement would be better than port, and, it seems, was engaged in the gen Davidson also testified that it was Dr. Funk's practice to make a report to the appellant's claim department of injury cases which he treated, and he (Davidson) had doubtless seen such report with reference to Mrs. Tay"According to this, if the representations re- lor's case before the settlement was made. lied on had been made by the agent who effected The plaintiff's counsel evidently recognized the settlement, but in a different transaction, it could not affect the rights of the principal un- that it was necessary, in order to sustain a der the contract. For a stronger reason is recovery and to set aside the settlement, to this true of a representation made, not only show that at the very time of the settlement in a different transaction, but by another agent, the representations as to what Dr. Funk had having no authority in relation to or connection with the settlement. His statements have said were made to plaintiff, and that she only the relation to the contract of settlement was induced thereby to make the settlement, and that such representations were false. not pay the drug bill incurred, but that he The fact that the representations had been replied that $50 was all he was authorized made by Dr. Funk would not have been suffi- to pay, that she could accept it or not, as cient to set aside the settlement, because she saw fit; that Mr. Shelton read the rethey were made at a time and under circumstances not connected with the making of the settlement, and were not made by one having authority, apparent or actual, from the appellant to compromise the claim. But if these representations or statements of Dr. Funk that were claimed to have been made to plaintiff while treating her as her physician were used afterwards by the claim agent, knowing that plaintiff had confidence in the judgment and honesty of the physician, in order to induce her to make a settlement, and such statements and representations were false, and were fraudulently used by the agent for the purpose of inducing a settlement, and plaintiff at that time relied on such statements, under the doctrine announced in the Huyett Case, supra, and in the same case in 49 Tex. Civ. App. 395, 108 S. W. 502, where on the second appeal the judgment of the trial court for plaintiff was affirmed, such facts and conditions might justify a setting aside of the settlement on the ground of fraud. We are of the opinion that the record fails to disclose that up to the time of the asking and answering of these leading questions, Mrs. Taylor's testimony had evidenced a state of facts bringing the case within a rule announced in the two Huyett Cases. We think the objectionable questions were evidently propounded with the view of eliciting the testimony necessary. Hence we are not able to say that reversible error is not shown under these two assignments, and hold that it is. At the time of the settlement, Mrs. Taylor was staying with her daughter, Mrs. W. W. Shelton, in the town of Bridgeport, to whose home she had been carried upon her arrival from Saginaw. There is no question about Mrs. Taylor's execution of the release, and there is no claim made in the petition that at the time of the settlement Mrs. Taylor was not of sound mind, or that she was mentally incompetent to contract or execute the release. Only four persons besides Mrs. Taylor were present at the time of the settlement, to wit, Mrs. Mollie Shelton, daughter of plaintiff, and her husband, W. W. Shelton, their daughter, Miss Audrey Shelton, and the claim agent, W. H. Davidson. All of these denied that any effort was made by Mr. Davidson, or any one else, to induce the plaintiff to accept the settlement offered and to execute the release. The testimony was to the effect that Mr. Davidson told her that he was not authorized to offer more than $50; that she asked him if he would not pay her $75, and further asked him if he would lease over to her and explained it to her; that Mrs. Taylor signed the same by touching the pen, and Mr. Davidson gave her a check; that $25 of the amount was given Mrs. Shelton, to remunerate her for the care and nursing of Mrs. Taylor during the several weeks she was confined at her house, and $25 given Mrs. Taylor, who put the money in her purse and took it away with her when she left, some four days later. It may be stated that Dr. Funk denied any effort on his part to induce Mrs. Taylor to make a settlement, except that he told her, when she asked him for his opinion, that he thought it was better to settle a case of this kind rather than to have a prolonged lawsuit. He further testified that he told Mrs. Taylor that he considered her injuries slight, and he stated on the trial that he was of the same opinion at that time. While some of us question the sufficiency of the evidence to sustain the judgment canceling and setting aside the release and settlement, yet the writer is of the opinion that, while the evidence supporting the judgment as to this feature is not so cogent as it might be, and consists largely of the testimony of Mrs. Taylor herself, yet that this court is not justified in reversing the judgment and here rendering judgment for appellants on the ground that appellee failed to sustain her allegations of fraudulent settlement by the necessary quantum of proof. While the burden of proof was on appellee to establish the fraud, and while the other witnesses who were present at the time of the settlement contradicted the appellee as to what occurred at the time of settlement with reference to the alleged statements of the claim agent, yet in the opinion of the writer the jury were authorized to believe the plaintiff, and apparently did so. Since the judgment must be reversed for errors heretofore mentioned, the court deems it unnecessary to pass upon the sufficiency of the evidence in the respect mentioned. While there is some question in our minds as to the claimed excessiveness of the verdict and judgment, it will not be necessary, in view of another trial, for us to pass upon the ninth assignment raising that issue. 14] We are of the opinion that the other assignments should be overruled, on the ground that, so far as they are applicable, the issues and principles of law contained therein were presented in the main charge. The judgment is reversed and the cause remanded. Reversed and remanded. WESTERN INDEMNITY CO. v. WALKER SMITH CO. (No. 7556.) (Court of Civil Appeals of Texas. Galveston. Where indemnity company refused to defend a suit as specifically agreed in a separate par agraph of the policy, and insured had to employ attorneys and others to defend, insured could recover obligations so incurred, although not yet paid, regardless of a no-action clause in the policy, providing that no action should lie against the insurer except to recover money actually expended, etc., because assured could not have supposed that the insurer would breach its contract at the outset. 2. INSURANCE 513 INDEMNITY POLICIES -BREACH BY INSURER-DAMAGES. Where insured in indemnity policy had to defend a suit because of failure of the insurer to do so it could not recover railroad fare and hotel bills expended by an investigator, where competent investigators could have been employed at the place where the investigation took place. Appeal from Galveston County Court; Geo. E. Mann, Judge. Suit by the Walker-Smith Company against the Western Indemnity Company. Judgment for plaintiff, and defendant appeals. Reformed and affirmed. Andrews, Streetman, Burns & Logue, of Houston, for appellant. C. G. Dibrell and McDonald & Wayman, all of Galveston, for appellee. LANE, J. This suit was instituted by appellee, Walker-Smith Company, a corporation, against appellant, also a corporation, which is hereinafter for convenience called the Indemnity Company, to recover the sum of $453.85 alleged to be due it under the terms of a policy of indemnity or insurance issued and delivered by said Indemnity Company to appellee. Schedule of Statements within the limits of the "2. To defend in the name and on behalf of It further alleges that while said policy was in full force and effect, to wit, July 2, 1916, and while being driven by one of plaintiff's employés in the city of Houston, Harris county, Tex., said truck ran into and struck one O. W. Schroeder and one C. E. Henry; that as a result of said accident the said O. W. Schroeder and C. E. Henry, both and each, suffered personal injuries; that on the 14th day of August, 1916, O. W. Schroeder filed his suit in the district court of Harris county, Tex., Fifty-Fifth judicial district, numbered on the docket of said court 70637, alleging various injuries as the result of said accident, and claiming damthat on the 15th day of August, 1916, C. E. ages against plaintiff in the sum of $10,000; Henry filed suit against plaintiff in the Fifty-Fifth judicial district court of Texas, Harris county, numbered on the docket of said court 70646, claiming that he suffered, as a result of said accident, permanent personal injuries and claimed damages against plaintiff in the sum of $10,000; that within a few days thereafter citations in said suits were served on plaintiff and its agents, and it forthwith transmitted them to defendant, Western Indemnity Company, who was requested by plaintiff to defend said suits, as it was bound to do under the terms of its poltion undertaken in said policy, and repeaticy; that defendant disregarded its obligaedly failed and refused to defend said suits; fusal it became necessary for plaintiff to emthat by reason and on account of said reploy attorneys and other agents to fully inVestigate said accident, prepare its answers in said suits, and defend the same; that it employed the legal firm of McDonald & Wayman, attorneys at Galveston, Tex., to repre"1. To indemnify the assured named and de- sent it in the defense of said suits, and has scribed in item No. 1 of the Schedule of State- promised and become liable to pay to said ments forming part hereof, against loss by rea- attorneys reasonable compensation for the son of the liability imposed by law upon the as- services rendered therein, which it alleges is sured for damages on account of bodily injuries, including death resulting therefrom, accidentally the sum of $400; that in addition to said suffered or alleged to have been suffered while liability it has had to pay the sum of $14 this policy is in force by any person or persons for taking the oral deposition of one of the by reason of the ownership, maintenance or use of any of the automobiles enumerated and described in item No. 5, and while being used for the purpose set forth in item No. 6 of the said In its petition appellee, among other things, alleges that on the 29th day of December, 1915, it was the owner of one certain automobile truck, and that on said date the Indemnity Company issued and delivered to it a certain policy of insurance, whereby the Indemnity Company insured appellee against loss and liability which might occur to appellee by reason of its ownership, maintenance, or use of said automobile truck, which said policy, among other things, pro vided as follows: plaintiffs in said suits, and has paid and obligated itself to pay to other agents in investigating the facts of said case, taking For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |