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W. 458; Royal Ins. Co. v. Kline Bros. & Co., 198 Fed. 469, 117 C. C. A. 228; Southern Ins. Co. v. Knight, 111 Ga. 622, 36 S. E. 821, 52 L. R. A. 70, 78 Am. St. Rep. 216; Reynolds v. German-Amer. Ins. Co., 107 Md. 110, 68 Atl. 262, 15 L. R. A. (N. S.) 345; Mercantile Co. v. Insurance Co., 114 La. 146, 38 South. 87, 3 Ann. Cas. 821; Day v. Home Ins. Co. (Ala.) 58 South. 550, 40 L. R. A. (N. S.) 652; Phenix Ins. Co. v. Dorsey, 102 Miss. 81, 58 South. 778. Discussing this subject, the Court of Civil Appeals for the Sixth District, through Mr. Justice Levy, in the case of Fire Ins. Co. v. Adams, supra, said:

"Defendant in error relies in this case on invoices of the goods by which they were purchased as being equivalent to an inventory of the stock, and as constituting substantial compliance with the requirement of an inventory. The parties having stipulated, as they had the right to do, for a record of the class of an 'inventory' which 'the assured will take,' it is not believed that the courts would be justified in so changing the language of the parties as to compel the insurance company to accept a record of a different class or a substitute for that which it had contracted for. And there is a practical difference between submitting an inventory taken of stock in the store and offering an invoice of goods by which they were purchased. For invoices to have any verity as evidence of goods received into a stock of merchandise, it would become necessary to show outside the invoice that the goods were checked with the invoice at the time they were received into the store, and were found to be correct in quantity and soundness, and that the merchandise represented by the invoice was actually received into the house and added to the stock before the close of the period for which the invoices are to be used as an inventory, for it is commonly known that invoices most frequently precede shipments, and sometimes the goods are only on approval. It must be assumed that the parties contemplated there was a practical and substantial difference between an inventory and commercial invoices by stipulating, as they did, for an inventory to be taken by the assured. It has been decided that the furnishing of invoices by which goods were purchased was not a compliance with the requirement of taking an inventory by the assured within 30 days after the date of the policy"-citing numerous cases in support of the text.

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(No. 5310.)

LANE et al. v. JONES. (Court of Civil Appeals of Texas. San Antonio. May 13, 1914.)

1. INJUNCTION (§ 144*)-TEMPORARY INJUNCTION HEARING IN CHAMBERS CONSIDERED.

MATTERS

viding that on appeals relating to temporary In view of Rev. St. 1911, art. 4645, proinjunctions the Court of Appeals shall hear and determine the matter on the petition, answer, application for temporary injunction in chamand affidavits, the lower court, in hearing an bers, cannot pass upon exceptions to the petition filed by the defendants, and, where no pleadings were filed, aside from the exceptions, the only question is whether the petition is sufficient to authorize the injunction.

[Ed. Note.-For other cases, see Injunction, Cent. Dig. §§ 316, 317, 321; Dec. Dig. § 144.*] 2. INJUNCTION (§ 122*)-PETITION-VERIFICATION-SUFFICIENCY.

Under Rev. St. 1911, art. 4649, requiring a petition for an injunction to be verified by the affidavit of the party, an affidavit by plaintiff's the best of his knowledge and belief, is insuffiattorney, not upon his own knowledge, but to cient, since it cannot be determined what facts are stated upon knowledge and what upon belief, and no prosecution for perjury could be predicated thereon if the affidavit were false.

[Ed. Note.-For other cases, see Injunction, Cent. Dig. §§ 262-268; Dec. Dig. § 122.*]

Appeal from District Court, Kinney County; W. C. Douglas, Judge.

Suit for injunction by John Jones against Frank Lane and others. From judgment granting temporary injunction prayed for, defendants appeal. Judgment reversed, temporary injunction dissolved, and the cause remanded.

Frank Lane, of Brackettville, and John J. Foster, of Del Rio, for appellants. Ernest A. Jones, of Brackettville. and Martin & Martin, of Uvalde, for appellee.

suit for injunction against appellants, Frank CARL, J. Appellee, John Jones, brought Lane, county attorney, Joseph Veltmann, county judge, and Hans Peterson, A. M. Slator, and L. N. Lewis, county commissioners of Kinney county, also against H. E. Veltmann, county clerk of said county. It is alleged that Albert Schwander is also a member of the commissioners' court, but of him no complaint is made.

The first amended petition charges that on February 11, 1914, the commissioners' court county attorney, was to be allowed $100 per made an order whereby Frank Lane, the month for his services, beginning February 1, 1914, and to run until the further order of the court. It was alleged in the original petition that this employment was illegal, and an injunction was prayed for, restraining H. E. Veltmann, the county clerk, from issuing and delivering any warrant or scrip on the treasurer therefor, and restraining Frank Lane, as county attorney, from demanding or receiving or receipting for any

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

Lane that should he be instrumental in selling said bonds or finding a buyer therefor, that the shall be full compensation for his services, and said sum of twelve hundred ($1,200.00) dollars that no compensation shall be expected by or paid to the said Frank Lane for such services: that the said county judge is hereby authorized the said Frank Lane embodying the terms of and empowered to enter into a contract with the above order securing his services as special

The amended petition further charges that the object of this suit "was and is to save to the plaintiff and many other tax-counsel in all civil matters in connection with templated or covered by the said Frank Lane's said bond issue and other legal matters not conofficial duties as county attorney of Kinney

payers of Kinney county, Texas, said sum of $1,200.00 public funds of Kinney county, which was illegally, unlawfully, and wrong-county." fully about to be misapplied and appropriat- It is alleged that this was intended to be ed to his own use and benefit by the defend- a salary; that Lane was the duly qualified ant Frank Lane, county attorney, as afore- and acting county attorney; and that the said by virtue of the order and judgment of advice and services rendered under said consaid commissioners' court aforesaid." And tract would be the same that he is required that defendants then entered into a scheme by the Constitution to render to the county; to evade and avoid the injunction of the and that the judgment of the commissioners' court and “yet still, with a show of legality, court, of date March 9, 1914, is a subterfuge, break into the county treasury of Kinney and an attempt to evade the injunction of the county, and take therefrom the sum of court. It is further alleged that since Febru$1,200.00 per annum or $100.00 per month, ary 28, 1910, the said Frank Lane has been beginning March, 1914, for the use and bene- drawing a salary as county attorney under fit of defendant county attorney, Frank the guise of legal services rendered and adLane, by reason of the following order, duly vice given the commissioners' court, all of recorded in the minutes of the Commission- which, it is claimed, is in violation of the ers' Court, vol. 4, pages 462 and 463, and Constitution and laws of Texas; and that judgment of said commissioners' court, which the "good roads bonds" referred to in the orwas duly prepared in advance by defendant der of March 9, 1914, had already been precounty attorney, Frank Lane, or under his pared by the court, or, under its direction, directions and employment, and requested to submitted to the Attorney General of Texas, be by said commissioners' court passed, which order and judgment is in words and approved by him, and H. E. Veltmann, the regular clerk of the commissioners' court, figures as follows, to wit: [Here follows a letter from the county attorney, Frank to be done was for the county judge and had been so notified; that all that remained Lane, to the commissioners' court, in which he asks the court to set aside the former General to put his certificate thereon, and county clerk to sign, and for the Attorney order of February 11, 1914, which request have the comptroller register same. was by the court granted on March 9, 1914, and the said order was set aside and held for naught.]" But the same order, in which that was done, proceeds:

"It is hereby ordered by the commissioners' court at a regular term in regular session on this, the 9th day of March, 1914, at 2:10 o'clock p. m., that the county judge of Kinney county be authorized to secure the services of Frank Lane, attorney at law, to assist said county judge and commissioners' court in properly preparing the issue of the road bonds voted by a majority of the qualified property tax-paying voters of Kinney county on the 14th day of November, 1913; to advise said county judge and commissioners' court in the proper preparation and issuing of said road bonds, and other legal matters in connection therewith; to sell or assist in selling said issue of bonds at the best price obtainable therefor; to do and perform such other services as shall be required of him in advising said commissioners' court and county judge with reference to said bond issue, and in reference to all other matters not contemplated or covered by the said Frank Lane's official duties as county attorney of Kinney county. The said employment by the county judge and commissioners' court to be for a period of one year from date of this order. Said Frank Lane to receive as such compensation for said services to be performed, as above set forth, the sum of twelve hundred ($1,200.00) dollars, payable one hundred $100.00) dollars per month for a period of 12 months. It being the petition is insufficient as a basis for

Prayer was made for a temporary restraining order, as before.

to the petition substantially:
Appellants, on a hearing, filed exceptions
(1) Because

warrant or scrip therefor. On February 24, 1914, the court granted this injunction, which was duly served, and appointed Charles Kartes, district clerk, pro tem. to serve in this case on account of the disqualification of H. E. Veltmann.

sioners' court on December 9, 1913, paid to The petition also charges that the commistheir codefendant Frank Lane, out of the for traveling expenses in visiting the Atpublic funds of the county, the sum of $100 torney General at Austin and getting the form of bond, etc., to which he would give his certificate of approval. This, as well as the $50 salary, it is claimed, Lane had been permitted to take out of the funds of Kinney county unlawfully.

The petition further charges that this contract is unlawful, and that the services therein provided for the county attorney is required to render by virtue of his office; that there is no way to pay said salary, except by an unlawful levy of taxes "or to raise plaintiff's and all other taxpayers' taxes to that extent, as hereinbefore alleged"; and, in the alternative, it is alleged that, should said contract be held legal, the salary is exorbitant and unreasonable.

vided by law; (2) because the allegations | S. W. 375; Bule v. Cunningham, 29 S. W. therein contained set up no such equitable 801. And, where the verification is defective, cause of action as would entitle him to the an injunction will not be granted. Smith v. relief prayed for; (3) because the same is Allen, 28 Tex. 497; Johnson v. Daniel, 25 insufficient to invoke the equitable jurisdic- Tex. Civ. App. 587, 63 S. W. 1032. tion of the court, and the allegations therein contained are insufficient as a basis for an injunction.

The attorney, in this case, makes oath "that the allegations in the said petition are true according to his knowledge and belief."

No answer, other than these demurrers, It does not inform us what part he knows was filed. of his own knowledge and what facts he swears to on belief. It must be borne in mind that this is an application for a temporary injunction, which, to some extent, distinguishes it from a petition for permanent injunction which comes up on final trial. The allegations must be clear and certain, and the verification must be in compliance with the statute. It cannot be ascertained from the affidavit what facts are sworn to on the basis of the attorney's knowledge, nor those verified from information, nor the source of that information. The courts of this state have repeatedly held that such an affidavit is insufficient. Rev. Stats. 1911, art. 4649; Pullen v. Baker, 41 Tex. 420; Graham v. McCarty, 69 Tex. 324, 7 S. W. 342; Ry. Co. v. Harkey, 39 Tex. Civ. App. 523, 88 S. W. 506; Lee v. Broocks, 54 Tex. Civ. App. 220, 118 S. W. 164; Clarey v. Hurst, 136 S. W. 840; Spinks v. Mathews, 80 Tex. 375, 15 S. W. 1101; Smith v. Banks, 152 S. W. 449; Ry. Co. v. Brown, 75 S. W. 807; Moss v. Whitson, 130 S. W. 1034.

The court granted the temporary injunction prayed for, and appellants waived the issuance and service of the writs.

Article 4649 of the Revised Statutes requires the petition to be verified by the applicant. The affidavit reads as follows: "The State of Texas, County of Kinney:

"Before me, the undersigned authority in and for said county and state, on this day personally appeared Ernest A. Jones, attorney of record for John Jones, plaintiff in the above-numbered cause, who, being by me first duly sworn, says that John Jones is plaintiff in the above and foregoing first amended petition, and that the allegations in said petition are true according to his knowledge and belief. Ernest A. Jones, Attorney for John Jones, Plaintiff.

"Sworn to and subscribed before me this 19th day of March, A. D. 1914. H. A. Longcor, J. P. and Ex Officio Notary Public, Kinney Co., Texas. [Seal.]"

[1] Appellee insists that the court had no power to pass on the special exceptions in chambers, and we think that position is correct. This is a matter for the court to pass upon, and not for the judge in chambers. The only question that was before the judge in chambers was whether he should grant an injunction upon the pleadings as presented. The law provides that matters touching temporary injunctions shall be heard and determined on appeal by the bill or petition and answer thereto. Articles 4644 and 4645, Revised Statutes. And, since no answer was filed in this case, the matter was before the court upon the bill presented. The judge could not then act upon the exceptions. El Campo Light Co. v. Water & Light Co., 132 S. W. 868; Dearborn v. Phillips, 21 Tex. 449-451. The matter, then, resolves itself into this question: Would the court be authorized to grant a temporary injunction on a bill not verified as provided by law, where no answer is filed?

[2] Article 4649 of the Revised Statutes of

1911 reads as follows:

In the Spinks Case, supra, it is said: "In support of pleas of this character it is held that the affidavit should show substantially that the party making it has knowledge himself of the facts. It is signed by an agent, and the general statement under oath that the allegations are true and correct, to the best of his knowledge and belief,' is too general to constitute a substantial compliance with the law."

"No writ of injunction shall be granted, unless the applicant therefor shall present his petition to the judge, verified by his affidavit taken before some officer authorized to administer oaths, and containing a plain and intelligible statement of the grounds for such relief."

This affidavit is made by the attorney, and it has often been held that, where the attorney makes it, he must do so upon his own knowledge. An affidavit to the "best of my knowledge and belief" is insufficient. Cates v. Maas, 4 Willson, Civ. Cas. Ct. App. § 161, 14 S. W. 1066; Ewing v. Duncan, 81 Tex. 230, 16 S. W. 1000. The allegations must be def

And in the Smith v. Banks Case, supra, Mr. Justice Fly has said:

"The test of an affidavit, as laid down by the Commission of Appeals (Whitemore & Co. v. Wilson, 1 Posey, Unrep. Cas. 213), is that the affidavit of the facts sworn to must be so direct and unequivocal as that an indictment for perjury would lie, if the oath is falsely made. The affidavit in this case will not meet that test, for up-tain part of the petition was sworn to upon it would be impossible to prove that any cerknowledge, information, or belief, and consequently an indictment for perjury would have nothing upon which it could be predicated with that definiteness required in criminal proceedings. The general rule is that an affidavit on mere information and belief, without supporting affidavits of the informants, is not sufficient"citing some of the cases referred to here, and citing some others. Beach on Inj. par. 136; High on Inj. par. 1569; Ruge v. Fish Co., 2 Fla. 656, 6 South. 489; Moss v. Whitson, 130 S. W. 1034.

We therefore conclude that the affidavit was insufficient to form the basis of a tem porary injunction, and the first assignment of error is sustained.

The case will not be further considered, because we will not assume that a different affidavit from this one will be made. The

such as this is the affidavit, and, since it was totally insufficient, the court was not authorized to grant the temporary injunction. The judgment is reversed, the temporary injunction is dissolved, and the cause is remanded.

WOFFORD v. LANE et al. (No. 5322.) (Court of Civil Appeals of Texas. Austin. March 18, 1914. On Motion for Rehearing, April 29, 1914.)

1. EVIDENCE (§ 273*)-DECLARATIONS-ADMIS

SIBILITY.

A statement of a husband prior to the incurring of an indebtedness to a third person that personal property belonged to his wife was admissible in a contest between the third person and the wife to determine the ownership of the property.

[Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 1108-1120; Dec. Dig. § 273.*] 2. HUSBAND AND WIFE (§ 492*) - SEPARATE PROPERTY-GIFTS. Where a husband and wife treated animals as her separate property under a mistaken view of the law as to the increase of the property, there was no gift to the wife, but if the husband relinquished his claim to the increase because it was just to the wife that she should have the increase of her separate property, there was a gift by him to her of the increase.

[Ed. Note.-For other cases, see Husband and Wife, Cent. Dig. §§ 249-255; Dec. Dig. § 492.*]

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[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 4231-4233; Dec. Dig. § 1070.*]

Appeal from Brown County Court; Frank H. Sweet, Judge.

Action by Miles Wofford against R. B. Lane, in which Minnie J. Lane appeared and filed a claimant's bond. From an adverse judgment, plaintiff appeals. Affirmed.

and this evidence was not controverted. R. B. Lane and appellee each testified that they had always treated and considered the animals in controversy as the separate property of appellee and also that on several occasions parties had sought to purchase the animals in controversy, and that R. B. Lane had stated to such parties that the animals belonged to his wife, and referred them to her, and that she had declined to sell them. This testimony was corroborated by parties who had sought to purchase these animals. Both Lane and his wife testified that they had considered and treated said animals as the separate property of Minnie J. Lane, for the reason that they were the offspring of mares belonging to Minnie J. Lane.

Snodgrass, Dibrell & Snodgrass, of Coleman, and Mark McGee, of Brownwood, for appellant. I. J. Rice, of Brownwood, for appellees.

Appellant assigns error upon the refusal of the court to grant a new trial "because the answer of the jury to question No. 2 is not responsive, and not sufficient upon which to base a judgment in this case, in that it is indefinite, incomplete, and does not state any definite time, but making it necessary for the court to determine from the evidence whether the gift was made prior to or subsequent to the levy of attachment herein by plaintiff upon the animals in controversy, and to the creation of plaintiff's debt." Said question is as follows:

"If in answer to question No. 1 you have stated that defendant R. B. Lane gave said mule to his wife Minnie J. Lane, then state when he did so." Answer: "When he refused to sell or dispose of said property."

[1] Appellant assigns error upon the admission of the testimony that R. B. Lane stated to parties who desired to purchase the animals that they belonged to his wife. We overrule this assignment. This statement, having been made prior to Lane's indebtedness to appellant, was a circumstance that might be looked to to determine whether or not he had given the property to his wife. As we cannot know what the testimony upon another trial will be, we refrain from stating any opinion as to whether the testimony was sufficient to sustain the gift as to the two mules.

JENKINS, J. Appellant brought suit against R. B. Lane on a debt, and levied upon two mules and one mare. Appellee Minnie [2] If the facts are that Lane and his wife J. Lane filed her oath and claimant's bond, treated the animals as the separate property alleging that said animals were her separate of the wife, upon a mistaken view of the law property. The trial of the right of property as to the increase of separate property, this was submitted upon special issues. Appellee would not constitute a gift; such fact would and her husband each testified that the ani- not have estopped the husband from claiming mals in question were the offspring of mares the property as community property. But if that were the separate property of appellee, the husband in fact relinquished his claim

The same question was submitted, and answer made as to each of the other animals. We sustain this assignment. The court cannot look to the evidence in the case to supply omissions in special findings. Mussina v. Shepherd, 44 Tex. 627; Ry. Co. v. Botts, 22 Tex. Civ. App. 609, 55 S. W. 515; Heflin v. Burns, 70 Tex. 355, 8 S. W. 48; Riske v. Rotan Grocery Co., 37 Tex. Civ. App. 491, 81 S. W. 244.

to the property because he thought it was just to the wife that she should have the increase of her separate property, such fact would sustain the claim of gift. The evidence in this record is sufficient to sustain a gift as to the mare, but leaves it doubtful as to the mules.

For the reason that the finding of the jury as above set out is insufficient as a basis for the judgment, the same is reversed, and the cause remanded for another trial. Reversed and remanded.

On Motion for Rehearing.

**

*

*

[3] Appellees in their motion for rehearing have called our attention to the act of 1913, page 114, wherein article 1971 of the Revised Statutes is so amended as to read as follows: He [the court] shall submit all controverted questions of fact only to the decision of the jury." In the instant case, the court submitted to the jury the issue as to when R. B. Lane gave the property to his wife Minnie B. Lane, and the effect of our decision is that the jury did not answer this question. If R. B. Lane ever gave the property to Minnie B. Lane, the court should not have propounded the question as to when such gift was made, as the uncontroverted evidence showed that such gift was made, if at all, prior to the time R. B. Lane became indebted to appellant. As such question should not have been propounded, it is immaterial that it was not answered.

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Where the causal connection between the negligence of the master and the injury to the servant is sufficiently shown by reasonable deduction from the facts set up in the petition, the petition is good against a general demurrer, although a special exception to its sufficiency in that respect would have been well

taken.

any, was the negligence of fellow servants cured the defect in the petition.

*

for the negligent act of its employés or not, it
Whether a charitable hospital was liable
is liable for injuries to a servant caused by the
negligent failure to warn and instruct the serv-
ant, since that is the duty which cannot be del-
egated by the master.

Servant, Cent. Dig. § 298; Dec. Dig. § 151.*]
[Ed. Note.-For other cases, see Master and

[Ed. Note.-For other cases, see Pleading, Cent. Dig. 88 491-493, 495, 496, 498-510; Dec. Dig. § 205.*]

[Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 1343-1347; Dec. Dig. § 403.*] 3. CHARITIES (§ 45*)-LIABILITY FOR TORTS-INJURIES TO EMPLOYÉ.

2. PLEADING (§ 403*) - PETITION-CURE BY ANSWER.

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TO SERVANT DUTY OF MASTER

AND INSTRUCTING SERVANT.

Appeal from District Court, El Paso County; A. M. Walthall, Judge.

Action by Ramona Armendariz against Hotel Dieu. Judgment for the plaintiff, and defendant appeals. Affirmed. See, also, 145 S. W. 1030.

"That on or about the 7th day of July, A. D. 1892, defendant was duly incorporated by and under the laws of the state of Texas for the purpose of erecting and maintaining a hospital in the city of El Paso, Tex., for benevolent and charitable purposes, at which hospital the members of said corporation are to administer to the sick and afflicted of all nations, and to enable its members to receive the sick, the helpless and afflicted, and to nurse and care for and alleviate their pain and suffering, and to restore them as far as possible to health; that by the terms of said charter said corporation is to exist for 50 years from said date of 1892, and Where a servant's petition for damages for that it has still thereafter existed and now exinjuries sustained was defective in not show-ists and owes its life and function to said charing causal connection between the master's neg- ter; that the members of said corporation are ligence and the injury, an answer, which alleg- Sisters of Charity, and that no person can be ed that the proximate cause of the injuries, if at any time a member of said corporation un⚫For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

T. A. Falvey and Davis & Goggin, all of El Paso, for appellant. Ralf Border, Gunther Lessing, and O. L. Bowen, all of El Paso, for appellee.

this suit to recover damages arising from HIGGINS, J. Ramona Armendariz brought personal injuries, sustained while in the service of appellant. At the time of the acgle, and received injuries to her hand upon cident she was engaged in operating a man

which the suit is based. It was alleged that the mangle was dangerous and its operation hazardous; that she was a minor, inexperienced and ignorant of its danger and of the proper method of its operation, and defendant was negligent in failing to give proper instruction and warning regarding the mangle and its operation. Defendant answered by exceptions, general denial, and a special

plea as follows:

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