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cember, 1893, the date of the injury. De- hour. I immediately applied the air brakes, fendant has appealed. Reversed.

and, before the train stopped, the engine Fisher & Townes, for appellant. Hutchi

struck the object. I did not reverse the enson & Franklin and Yale Hicks, for appel- gine, I did not have time. I did not attempt lee.

to do so. It was dark. The headlight was

beaming. The jack was 7 or 8 feet from COLLARD, J. The statute (Rev. St. art. the end of the bridge, and seemed to have 4245) makes every railroad company liable his feet down between the ties at the south to the owner for the value of all live stock end of the bridge. A bridge at night, under killed or injured by locomotives and cars of the headlight, looks dark, and an object lysuch railroad; but it is provided that, if the ing on it is not easily seen on that account. company fence the road, it shall only be lia- The earth between the ties shows up white ble in cases of injury resulting from the under the headlight, but the space near the want of ordinary care. There was testimony bridge and between the ties shows up dark. tending to show that the company had fenced I was attending strictly to my business, and the road, but that it had got out of repair, turned on, immediately, the air brakes, when was down in several places, and that the I saw the object. Did all in my power to animal killed may have come on to the right stop. The pilot struck the jack almost in the of way and the track through an open place center, and carried him over 100 yards, when in the fence. If such was the case, it did not the train was stopped, and the train crew devolve on plaintiff to establish negligence got off and threw the body to one side. The of defendant's employés in killing the jack, brakes on the train were the Washington air in order to entitle him to recover; but, if | brakes, and had worked well during the trip, the road was fenced and in repair at the and continued to work well to San Antonio, time, he could only recover in the event of the end of the run." Cross-examined: “I proof of negligence, or the want of ordinary did not reverse the engine when I saw the care of the employés of defendant, resulting object, nor did I attempt to do so. The in the injury.

brakes worked well in slowing up upon The writer is of opinion that the testimony reaching the station. This was the only time did not authorize the submission of the case I had occasion, during the trip, to use them." upon the ground of negligence, and that there This testimony fails to show the negligence was error in submitting that question to the necessary to authorize the submission of the jury, as was done by the court, and that, question. It shows that the engineer was for this error, the judgment of the lower strictly performing his duty. A scintilla of court should be reversed. The members of evidence, or a mere surmise that there may the court are not agreed upon this point, have been negligence on the part of defendthough we do agree that the judgment should ant, clearly would not justify the judge in be reversed, but upon different grounds. leaving the case to the jury. There must The testimony was amply sufficient to sup- be evidence upon which they might reasonaport the verdict upon the issue that the fence bly and properly conclude that there was was down in places, or a place, when the negligence." The above-quoted expression is jack entered, and therefore that the road adopted as the true rule by our supreme was not fenced in the sense of the statute. court in the case of Railway Co. v. Faber, But it is the opinion of the writer that the 77 Tex. 155, 8 S. W. 64, and the court adds: testimony did not warrant the submission "This rule is expressly followed in several of the question of negligence on the part of cases, and is sustained by the weight of the company's servants, and that, for this authority.” If plaintiff relied upon this error, the judgment must be reversed. branch of his case,-the negligence of de

The only testimony as to the negligence of fendant's servants in running the locomotive the defendant's servants, besides the fact upon ard killing the animal,-it devolves that the jack was struck and carried from upon him to prove it, so that it could appear 100 to 150 yards on the pilot of the engine, beyond a mere surmise or supposition, and is that of the defendant's engineer operating so that the jury could reasonably conclude the locomotive. This witness testified as fol- that there was such negligence. Telegraph lows: "I was, in December, 1893, locomotive Co. y. Housewright, 5 Tex. Civ. App. 1, 23 engineer in the employ of defendant, and had S. W. 824; Railway Co. v. Arsipe, 81 Tex. been for a number of years. I was engineer 517, 17 S. W. 47. on the south-bound passenger train running We are agreed that we would set the verfrom Taylor to San Antonio on the after- dict aside, upon the ground that the testinoon and evening of December 15, 1893. I mony is not sufficient to show negligence. remember my engine striking and killing a This is a strong, and, it seems to me, an jack about 142 miles north of Kyle, on the invincible, reason why we should also hold evening or night of December 15, 1893, on that the question of negligence should not what is known as the "Lock Place." It oc- have been submitted to the jury. Both in curred 8:40 p. m., or that late. I was in my submitting the issue and in acting upon the cab, at my place, looking ahead, when I motion for a new trial, the trial judge has saw, about 50 yards ahead, an object on the the same question to determine. The legal track. The train was running 30 miles an effect of the testimony is the matter to be

,

determined in both cases, and the writer believes the rule should be that, if the court is of opinion that a new trial should and would be granted because of the insufficiency of the testimony, or its inherent weakness to support a verdict, he should not submit the issue, though it may be well pleaded. It seems to me absurd to require the trial judge to submit an issue which is not sufficiently proved to support a verdict, or that demands a new trial at the hands of the court. The court has the same question to decide at both stages of the proceeding. It is true the jury might refuse an affirmative verdict; butwhen the court submits the issue, they are permitted by the court to find affirmatively on the issue. I do not see what good result can be secured by submitting an issue merely to see how the jury will decide it, if a new trial is to be granted, unless they decide against the proposition. I am aware of the fact that the sủpreme court adopted the opinion of a majority of the commission of appeals, Judge Fisher dissenting, where a different view was expressed to that held above (Fitzgerald v. Hart, 17 S. W. 369); but, notwithstanding that decision, it seems to me that the judge should not submit an issue to the jury unless the testimony is sufficient to justify a verdict that would be upheld by the court on a motion for a new trial. It may be said that a party has the right to have a jury, when one is called, pass upon his case; but it seems to me to be idle, if not trifling, for the court to submit an issue which has such meager testimony to support it that the judge would necessarily set aside a verdict found upon it, because without sufficient evidence to support it, and which verdict the court had, at the time of submission, correctly determined to set aside. It would be more consistent to refuse a charge upon the issue. It would be as much an invasion of the province of the jury to grant a new trial after the verdict as it would to refuse to submit the issue upon the ground of insufficient testimony.

Outside of these considerations, my opinion is that there was no evidence of negligence on the part of defendant's servants authorizing the submission of the issue. I believe that, if we should hold that the testimony warranted the submission of the issue of negligence, and that the court did not err in submitting it, inasmuch as the verdict was general for plaintiff, and the testimony sustained it,-as it does on the other branch of the case, that the railroad was not fenced as required by statute,-the verdict should stand. In my opinion, the verdict should stand if it is supported on either branch of the case, if there was no error in submitting the issues. Where there is error in admitting testimony, and there is another issue upon which there is no error, and there is a general verdict in favor of the party for whom the improper testimony was admitted, the rule is

v.33s. w.no.1--9

to set the verdict aside on appeal, because the verdict may have been reached by the illegal testimony. This rule must rest upon the fact that there was error in admitting the testimony; but, if there were no error in admitting the testimony, the verdict would be allowed to stand, if sufficiently supported by testimony on the other branch of the case. So, if there were no error in submitting the issue of negligence, though not sufficient evidence to support the verdict upon that issue, and the testimony amply supported the general verdict on the other issue, as failing to fence the road, it should not be set aside. It is the error that requires the verdict to be set aside. If there is no error in admitting testimony or in submitting the case, and one theory of the action is sustained by proof, the verdict, though general, should not be set aside because there is an issue correctly submitted upon another theory not supported by the testimony. I think, however, that there was error in submitting the issue of negligence, because the testimony did not warrant it, and, therefore, that the verdict should be set aside; and I also think that, because of the error in submitting the issue, it is our duty to set it aside, upon the ground that the testimony does not support the verdict on that issue. It should not have been submitted. We concur in finding that assignments of error relating to other matters are not well taken. The judgment of the court below is reversed, and the cause remanded. Reversed and remanded.

KEY, J. I concur in the reasoning of Jus tice COLLARD, and in the holding that it was error to submit the issue of negligence, in the manner that it was submitted. If the doctrine announced by the majority opinion in Fitzgerald v. Hart (Tex. Sup.) 17 S. W. 369, is to be adhered to, then, when a case involves more than one theory, it ought to be submitted on special issues, if, as in this case, the evidence on one issue is insufficient to support the verdict. It was error, in this case, to submit the issue of negligence otherwise than as a special issue.

FISHER, C. J. I concur in the views expressed by both of my associates, and also as to the disposition of the case.

ODUM V. MENAHEE.1 (Court of Civil Appeals of Texas. Sept. 12,

1895.) HUSBAND AND WIFE - HOMESTEAD — MORTGAGE

ABANDOYMENT-EXECUTION SALE.

1. A mortgage by a husband and wife of their homestead to secure a debt of the husband is void.

2. Title acquired by an execution plaintiff as purchaser at an execution sale on a dormant, though valid, judgment, is good on collateral attack.

1 Rehearing denied.

3. Evidence of absence of a husband and void order of sale, within a year after its renwife from a homestead for seven years, and dition, such judgment was dormant when exresidence in another state during that time, without any evidence of intention to return,

ecution issued in 1890, and that such execuwarrants a finding of abandonment, though tion and sale thereunder were void, and they originally left because their house was passed no title to plaintiff; and that the burned, and they were shot by unknown parties.

property was all of this time the homestead Error from district court, Shelby county; of himself and family, and was not subject James T. Polley, Judge.

to the sale under execution. The court beAction of trespass to try title by G. W. low held that the judgment of foreclosure, Menafee against T. G. Odum and wife. From the order of sale and sheriff's deed thereuna judgment for plaintiff, defendants bring der, were all void, and that plaintiff acquired error. Affirmed.

no right through them; that the judgment Hugh B. Short, for plaintiffs in error. Tom

for money against Odum was valid, but was C. Davis, for defendant in error.

dormant when execution issued upon it; that

such execution and the sale thereunder were WILLIAMS, J. This suit was brought by erroneous, but not void, and passed a title to defendant in error to recover of plaintiffs in the purchaser, which could not be collaterally error a tract of land. The petition was in attacked; and, finally, that when the executhe usual form in trespass to try title, and the tion was levied upon the land it was not answer was a general denial and plea of not homestead, but had been abandoned as such. guilty. Judgment was rendered for plaintiff, In regard to the abandonment it was shown from which this writ of error is brought. that at the date of the deed to Menafee, Odum Odum, in 1887, owned the land in controversy,

owned no other land but that in controversy and, with his wife, occupied it as a home- constituting the homestead; that in Septemstead. In February, 1887, the two joined in ber, 1887, some unknown person set fire to a deed, absolute in form, purporting to con- his house, and that in a few days thereafter vey the land to Menafee, but in fact the in- Odum was shot and wounded, and his wife strument was intended merely as a security was shot at from ambush; and that, as soon for money then borrowed by Odum from as his wounds permitted, he was carried Menafee. In October, 1887, Menafee insti- across the Sabine river into Louisiana, to a tuted suit against Odum, not joining his wife, point some 20 miles from his place, where he to recover the land. Odum, in his answer, has since remained, and now resides with his alleged the execution of the deed, averred family. The land has been held for him by that it was given merely to secure the debt, tenant. This, with the facts about the litithat the land was a homestead, and the in- gation above stated, constitutes all that is strument was therefore void. Menafee re- shown by the record to enable us to deterplied, asking that, if the deed be held to be a mine whether or not there has been an abanmortgage, he have judgment for his debt, donment of the property as a homestead. In and a foreclosure of the lien to secure it. In order to constitute an abandonment, the act that suit judgment was rendered April 25, of leaving the property must have been ac1888, adjudicating that the deed was a mort- companied by an intention not to return to gage only, and did not pass the title, but that and occupy it as a home, or such intention, if it constituted a lien upon the property to se- not existing at the time, must have been since cure the money loaned by Menafee to Odum; formed. The burden of showing an abanthat Menafee recover of Odum the sum so donment rests upon the party asserting it. loaned; and that the lien be foreclosed, and No facts attending the original departure are the property sold to pay it. On May 18, 1888,

shown from which such an intention could be an order of sale was issued upon this judg- inferred. But it is shown that for about sevment for the sale of the land, which was in en years the family have remained away from all respects regular, except that it described their former home, and have resided in anthe lien foreclosed by the judgment as a ven- other state. As these facts are stated, withdor's lien. Under this writ the land was out explanation or qualification, in the recsold by the sheriff, and bought by Menafee ord, they seem to imply that Odum and his for $50, which was credited on the judgment. family have taken up a permanent abode in No other process was issued on the judgment | Louisiana, and there is no evidence of an inuntil May 5, 1890, when an execution for the tention to return, nor any circumstances imbalance due was issued against Odum, under pairing the force of the fact of residence in which the land was levied upon, sold, and Louisiana. The homestead of a person is oragain bought by Menafee for $50, which sum dinarily where he resides; and the statement was also credited upon the judgment. Men- that a party resides at a particular place natafee brought this suit July 2, 1891, against urally gives rise to the inference that his Odum and his tenant, to recover the land, home is there. If such residence is temporelying on the title obtained through the pro- rary merely, and not inconsistent with the ceedings just stated. The defendant claims existence of a home elsewhere, that fact that the judgment foreclosing the mortgage should be shown; otherwise the natural inon the land, and the order of sale and sale ference is to be indulged. Here there is not thereunder, were void; that, no execution only residence in Louisiana, but seven years' having issued upon the judgment, except the absence from the property in question, during which it was being sued for and levied ant took advantage of plaintiff's weakness of upon and sold. These farts, unexplained,

intellect, an instruction requiring the utmost

good faith on the part of defendant if plainwere sufficient to justify the court in conclud

tiff was weak-minded, and he sought defending that, prior to the levy of the execution, ant's advice, and relied on his statements, and the parties had taken up their permanent res- defendant knew these facts prior to and at the idence elsewhere, and had no intention of re

time of contract, is proper.

5. In an action for rescission of a contract occupying this property as their home.

of partnership, on the ground that defendant As to the law of the case, we conclude: fraudulently misrepresented the value of the 1. That the mortgage from Odum and wife

business, to entitle plaintiff to relief it must to Menafee was absolutely void.

appear that the defendant made the representaInge v.

tions, knowing them to be false. Cain, 65 Tex. 79.

6. It is reversible error to allow the jury 2. That the decree, in so far as it foreclosed to take with them to the jury room memoranda, that mortgage, did not have the effect to con

used by a witness to refresh his memory, which

are not in evidence. clusively establish a lien upon the property; and a sale under it was ineffectual to pass Appeal from district court, Presidio county; title to the homestead, because the wife was

C. N. Buckler, Judge. not a party to those proceedings. Campbell

Action by John Faver against Benton Bowv. Elliott, 52 Tex. 151; Thompson v. Jones, 60 ers and others. From a judgment for deTex. 94; Id., 77 Tex. 627, 14 S. W. 222; Jer- fendants, plaintiff appeals. Reversed. gens V. Schiele, 61 Tex. 255; Freeman V. The following were the sixth, seventh, and Hamblin, 1 Tex. Civ. App. 157, 21 S. W. 1019; eighth assignments of error: "(6) The court Mexia v. Lewise, 3 Tex. Civ. App. 118, 21 S. erred in charging the jury in that part of its W. 1016.

charge as follows: 'If you believe from the 3. Whether or not the issuance of the order evidence that at the time said contract was of sale within 12 months from rendition of made the plaintiff was a man of weak mind judgment was sufficient to prevent the judg- and limited business capacity, and was in ment from becoming dormant is a question the habit of seeking the advice of others rewhich we need not decide. The judgment garding his business affairs, and defendant for money against Odum was valid, and, con- Bowers knew that fact at the time said conceding that it was dormant when the execu- tract was made, and that plaintiff sought the tion issued, the writ was not, on that account, advice of the defendant as to advisability of void, but was sufficient, until set aside, to making said contract, and that defendant empower the sheriff to sell property and pass undertook to advise him in said matter, and title to the purchaser. The sale, when made, that the plaintiff relied upon defendant, and conveyed a title which was good against col- that the plaintiff confided and trusted in the lateral attack, notwithstanding the fact that statements of defendant, and defendant Bowplaintiff in execution was purchaser. Bog- ers knew that fact, at the time said congess v. Howard, 40 Tex. 153; Ayres v. Du- tract was made, then that it was the duty prey, 27 Tex. 593. It follows that the judge of defendant to use the utmost good faith ment should be affirmed.

towards the plaintiff,' etc. The grounds of said error being that said charge, but not the law, requires a finding of immaterial facts,

such as that plaintiff habitually sought the FAVER V. BOWERS et al. 1

advice of others, and that defendant Bowers

knew that fact prior to, and at the time of, (Court of Civil Appeals of Texas. Oct. 23,

the contract in question, and that, not only 1895.) PARTNERSHIP-CONTRACT-RESCISSION FOR FRAUD

did plaintiff confide in the statements of said -BOOKS OF ACCOUNT-ORIGINAL ENTRIES

defendant, but they must find also that the -REFRESHING MEMORY.

latter knew this at the time of contracting, 1. A witness may refresh his memory from before the jury could at all consider the memoranda taken from old partnership books, mental weakness of plaintiff, or the fact that on testifying that he made the entries, and knew them to be correct, though he has, on being duly

he did repose confidence in the statement of notified, failed to produce such' books on the defendant, which error is calculated to have trial.

misled the jury, to the injury of plaintiff, 2. Where, in an action for an accounting, from consideration of the mental condition the partnership books, when offered by defend ant, have been excluded, because the accounts

of the plaintiff. (7) The court erred in its were not properly entered therein, the defend- charge, in its paragraph 2, in this: that to ant, on testifying that he remembered the en- | the probable injury of plaintiff, the said tries, and that they were made by him, may refresh his memory by referring to memoranda

charge required an affirmative finding by the taken from the book.

jury that the misrepresentations of defend3. Where monthly reports made by an agent ant as to the value of the property involved of a partnership to a member of the partnership

in this suit, if any, made to the plaintiff, are correctly entered by him in the partnership books, and it appears that this is the customary

were knowingly made by defendant Bowers method, the entries are, as between the part- before such misrepresentations, even if maners, original entries.

terial, relied on, inducing the contract, and 4. In an action for the rescission of a contract of partnership, on the ground that defend

causing material injury to the plaintiff,

could be considered by the jury as a ground 1 Rehearing denied.

for the rescission asked by plaintiff, which is not the law; and that the court in said , extract made by him from a book of acparagraph repeats, and thus emphasizes, said counts of himself and former partner; that unlawful requirement of said charge, by con- he had made the entries in the book, and tinuing thus in said paragraph 2: 'And you knew them to be correct; and that, after rebelieve from the evidence that said represen- freshing his memory from the extract from tations were false and untrue, and that they the account book, he would swear that the were made by said defendant for the pur- well on the place cost $1,400, and all the impose of inducing the plaintiff to enter into provements $2,300. This was objected to by said contract, etc., 'then you are instructed appellant, because the extract was made that the plaintiff would be entitled to recoy- after the institution of the suit, from a book, er.' Thus the court's charge unlawfully re- because appellee had been ordered to proquires, to enable plaintiff to recover judg- duce all the books and papers referring to ment of rescission, that the jury find that de- the stage line between Shafter and Marfa, fendant's misrepresentations were knowing- and papers relating to the title to the partly made by him, and with a design to over- | nership lands, and because it appeared that reach plaintiff, while said misrepresentations the witness had no recollection of the amount might constitute a ground for relief, even if of the expenses. The testimony of appellee made without evil purpose, or knowledge that shows that he had the improvements made, they were false, in the maker. (8) The and that he remembered that he had paid for court erred in submitting in said charge, in them, but did not remember the amounts, its paragraph No. 3, as a question to the and we are of the opinion that it was propjury, the construction of the instrument in er to permit him to refresh his memory as writing executed by defendant Bowers to to the amounts from an extract taken from a plaintiff, of date August 8, 1893, conveying a book, in which the entries were made by him half interest in the partnership property, at the time of payment. The writing being among other property, the ranch and pasture used merely to refresh the memory of the known as the 'Stage-Stand,' and in leaving witness, it was not necessary that it should with the jury the question as to what title be produced in court. 1 Greenl. Ev. § 437; Bowers meant to convey, or did convey, by Hamilton v. Rice, 15 Tex. 382. The book of said instrument, in and to said land, ranch, accounts had nothing to do with the matters etc.; said construction, under the pleadings, about which the subpoena duces tecum conbeing for the court, and said conveyance be- cerned itself. It was permissible for the witing in fact that of an interest in the fee, by ness to refresh his memory from a bill of proper construction, which the court ought to particulars, known by him to be a copy of have given said instrument.”

a correct memorandum of amounts paid out, P. H. Clarke, for appellant. H. H. Kil- Railroad Co. v. Burke, 55 Tex. 324. The

made by him. 1 Greenl. Ev. $$ 436-438; patrick and Falvey & Davis, for appellees.

basis upon which the admission of the res

timony rested was the failure of the witness FLY, J. This appeal is the result of a suit to remember the amounts paid out, and, filed by appellant against Benton Bowers, D. without this failure to remember the testiL. Aiken, and Friend Sproull, to obtain the mony, he would not have been allowed to rescission of a partnership contract with the testify from the memorandum. The failure former, to recover certain sums of money to produce the book of accounts for the infrom him, and to foreclose an equitable lien spection of the opposing party may, as aron the partnership property, some of which gued, be a ground for suspicion, but it goes was alleged to be held and claimed by Aiken to the weight, rather than the competency, and Sproull. As a basis for a cancellation of of the evidence. Had the testimony been imthe partnership agreement, it was alleged properly admitted, appellant cannot comthat appellant was weak-minded, and had plain, as the value of the property was provbeen overreached and deceived by Bowers, ed by other evidence. and induced to part with his money for a Appellee attempted to introduce a book of grossly inadequate consideration. Appellee accounts of the partnership involved in this answered by a cross action for a sum of suit, in which were kept the expenditures money advanced by him to the partnership. and receipts of the partnership from its inThe case was tried by a jury, and resulted ception, in 1893, up to and including Februin a verdict for appellee Bowers for one-half ary, 1895. The admission of the book was of the advances, and for the other appellees objected to, because the entries of the transfor their costs. It was charged that appel- actions were not made at the time they lee had grossly exaggerated the value of the transpired, because it was not a book in property, a share in which was sold by him which the items of accounts were entered, to appellant, and appellee appeared as a and because the receipts therein debited to witness to show, among other things, the the partnership were not dated or itemized. amount he had expended on the improve The book was excluded, and afterwards apments. He stated that he did not remember pellee testified that he remembered the enthe items of the amounts expended in im- tries in the book, and that they were made provements before the contract of partner-by him, and were correct, and that he had ship with Faver; that he had with him an made a correct memorandum of the entries

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