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ter company at the expense of the consumer Here the defendant in error did not place or owner of the property who shall pay to the the cut-off box in the sidewalk, and it was water company full cost of labor and ma- no part of its duty under the contract to do terials necessary to lay suitable and durable so, and it owed no duty to plaintiff in error service pipes, with all proper and usual fit by reason thereof. tings, including curb cock and curb box," etc. This case is almost "on all fours" with the

The contract, as seen, provides the water- case of San Antonio Water Supply Co. v. works company "shall in no event be respon- Castle, 199 S. W. 300, decided by this court, sible for damages to persons or to property and we regard what was said there, on a arising from defective or inadequate serv- similar contention, applies here. The court ice, connections, or appurtenances," etc. in that case said: [1, 2] It is the duty of municipal govern

If the evidence had been of such a charments, which are public agencies, to furnish acter as to go to the jury, that is, if there her citizens with all such necessary utilities, had been an admission that the waterworks comas water, lights, streets, and such other pany installed the cut-off box, or testimony to public conveniences as are necessary for that effect, special charge No. 4 should have their protection and benefit. It may contract been given, as it affirmatively presented the with some other person or corporation to water company's defense that in 1907 the cutperform that service for it, just the same as if the condition complained of by plaintiffs was

off box was taken out and put back in, and, it could do. It has here made the contract then brought about by some one other than the with defendant in error to furnish her citi- water company, it would not be liable. Railzens with water, and provided under cer- way v. McGlamory, 89 Tex. 635, 35 S. W. 1058; tain conditions the water company shall not Railway v. Rogers, 91 Tex. 58, 40 S. W. 956. be liable for damages not growing out of its The eleventh assignment is therefore well takown independent, unlawful acts, but caused en, and must be sustained." by the failure of the citizen to perform his part of the obligation to secure the services

We have considered all the assignments, as in this case. Predicating the suit for tort and they are overruled, and the judgment is upon the breach of duty growing out of that affirmed. contract, made for the benefit of the citizens, the litigant must be governed by all its terms.

Our Supreme Court, in the case of House v. Houston Waterworks Co., 88 Tex. 233, BROOKS v. HAMILTON et ux. (No. 2212.) 31 S. W. 179, 28 L. R. A. 532, opinion by the Court of Civil Appeals of Texas. Texarkana. late Judge Brown, in a very carefully pre

Jan. 22, 1920.) pared opinion, laid down the rules of negligence in such contracts, and says:

VENUE 14-ACTION FOR CONVERSION BY "The true question always is: Has the defendant committed a breach of duty apart from the contract? If he has only committed a

Where plaintiffs, pledgors, lived in S. counbreach of the contract, he is liable only to those ty, and defendant, pledgee, in H. county, where with whom he has contracted; but, if he has pledge was made and property held, and plaincommitted a breach of duty, he is not protected

tiffs repaid the borrowed money, defendant by setting up a contract in respect to the same agreeing to deliver the pledged diamonds in F. matter with another."

county, where he delivered other inferior dia

monds, defendant was guilty of conversion in This contract was not made with plaintiff H. county, and where plaintiffs kept the diain error as a class to which he belongs, by monds delivered and brought action for damvirtue of which appellant would have a right ages, the venue was in H. county, and not in

F. county, under Rev. St. 1911, art. 1830, exto sue for damages for injuries for which

ception 7. the defendant has contracted to indemnify, but the very contract, the basis of the suit,

Appeal from Franklin County Court; W. guarantees protection to the waterworks com- R. Irby, Judge. pany against such actions. There is no privity. House v. H. W. Co., supra.

Action by J. E. Hamilton and wife against The contract in this case is unlike the con- S. B. Brooks. Defendant's plea of special tract described in Washington Gas Co. v. privilege overruled, judgment for plaintiffs, District of Columbia, 161 U. S. 325, 16 Sup. and defendant appeals. Reversed, with inCt. 501, 40 L. Ed. 712, relied upon by petition structions to transfer cause. er. There all the pipes and connections were The appellees sue for damages for alleged required to be made and maintained by the fraud and deceit. The plaintiffs reside in company and every duty imposed upon the Smith county, and the defendant resides in gas company to construct and maintain and Hunt county. The defendant's plea of privoperate and in no sense relieved from lia ilege to be sued in Hunt county was overbility or duty in respect thereto, by its char- ruled by the court, and that is the sole quester.

tion for decision on appeal.

COUNTY

PLEDGEE MUST BE BROUGHT IN
WHERE CONVERSION TOOK PLACE.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(218 S.W.) The appellees base their right to try the sale or deceit and misrepresentation of kind case in Franklin county upon the seventh ex- of property in mutual exchange, is neither inception to article 1830, R. S. 1911. Their peti- volved nor presented by the facts of the case. tion alleged that certain diamonds of Mrs. The agreed statement of the case which is Hamilton's were delivered to the defendant for our decision under the facts states: in Hunt county as collateral security for pay

“Plaintiff alleges and bases her rights to sue ment of the sum of $450 borrowed in money, in Franklin county in that the defendant fraudand that Mrs. Hamilton while at Greenville ulently and for the purpose of defrauding agreed to redeem the diamonds by paying the plaintiff substituted diamonds of an inferior $450 for which they had been pledged, and grade and weight and placed them in the exthat the defendant agreed that he would de- press office of Greenville marked C. 0. D. adliver them to her at Mt. Vernon, Tex., by ex- dressed to A. J. Patton, care First National press C. O. D. It was alleged that the defend-Bank, Mt. Vernon, Tex., where the diamonds ant substituted diamonds of similar size of $450 to the express company on the order

were delivered to plaintiff after the payment and interior grade and placed them in the of the defendant." express office and shipped them to Mt. Vernon C. 0. D. The plaintiffs kept the dia As pledgee in possession of the original monds shipped, and sued for damages. The diamonds, as shown by the evidence, it was agreed facts are:

the legal duty of the defendant to return and "Plaintiff Mrs. Nell Hamilton was indebted redeliver the very thing pledged on payment to S. B. Brooks, of Greenville, Tex., in the sum

or tender of payment of the debt by the pledgof $450, which she borrowed from him during or. The pledgee is not authorized to return the year 1913, and to secure which she had or substitute other property for the particpledged with said Brooks three certain diamond ular property pledged; and if it be true that rings. In July, 1918, Mrs. Nell Hamilton visit the pledgee did return by express "substituted Greenville, Tex., and tendered to said Brooks ed diamonds" instead of the very diamonds the sum of $450 and requested the return of pledged in the first instance, then the pledgee said diamond rings. Brooks told her that the has violated his agreement and the duty he diamonds were mounted with another diamond

The "substituted diain a ring belonging to his wife and that he owed the pledgor. would have them taken from said ring and send monds” would not be the diamonds of the them to Mr. Patton at Mt. Vernon, Tex., by pledgor, but the property of the sender, and express C. 0. D. $450, and that she could take the pledgee. would still be the pledgee in acsaid rings upon payment of said sum.

tual possession and holding the original “That about the 31st day of July, 1918, pledged diamonds. The forwarding or offerBrooks deposited said diamonds with the Ameri- ing to deliver "substituted diamonds,” if true, can Express Company in Greenville, Tex., ad-would not in any legal sense relieve the dedressed to Mr. Patton, c/o First National Bank, fendant of responsibility of delivering the Mt. Vernon, Tex., C. 0. D. $450.

Mrs. Nell Hamilton and her husband claim real pledged property to the true owner. that they paid the $450 and accepted said dia- Thus, when the pledgee delivered to the exmonds at Mt. Vernon, Tex., on or about the press company "substituted” diamonds, if 31st day of July, 1918, and that said diamonds true, he was not legally complying with his were not the same diamonds she had delivered | legal duty and contract of pledge, but was, in to the defendant Brooks in 1913, but were dif- legal effect, converting, if true, the pledged ferent and very inferior diamonds to the ones property to his own use and benefit. The real she delivered to him and worth only about $450, whereas the plaintiffs claim that the dia- pledged diamonds of the pledgor would still monds that were delivered to Brooks in 1913 remain and be, in a legal sense, in Greenville were worth the sum of $1,400 in 1918."

in the possession of the pledgee; and the tak

ing, if true, of the pledged property in GreenNeyland & Neyland, of Greenville, for ap- ville would be wrongful and fraudulent with pellant.

the intent to deprive the owner of the value R. T. Wilkinson, of Mt. Vernon, and Cone and to appropriate it then at Greenville to Johnson, of Tyler, for appellees.

the use and benefit of the pledgee. Therefore

the case is, we conclude, as pleaded by plainLEVY, J. (after stating the facts as above). I tiffs, one of conversion, which would be deAccording to the agreed facts Mrs. Hamilton, pendent upon the fact of conversion of the the plaintiff, was the owner of certain dia- real pledged property, and not upon the parmonds which were placed in the possession ticulars in which he has violated the pledge. of the defendant as a pledge for a debt of The delivery to the express company of $450. The pledge was made in Greenville other and different diamonds, if true, would and the defendant lived in Greenville. The only be evidence of conversion of the real plaintiff was not at the time of the alleged pledged diamonds. In such event it would be occurrence a purchaser of the diamonds, nor evident that the pledgee retained and exwas Mrs. Hamilton exchanging these pledged ercised dominion over the pledged property diamonds for other and different diamonds. inconsistent with the contract of pledge and Mrs. Hamilton was merely paying the debt the rights of the pledgor; and the delivery to for which the diamonds were pledged as the express company of the substituted propsecurity. Hence any question of fraudulent lerty, if true, operates, as a legal consequence,

PAID

to evidence and make complete the act of con- sion which entitled the insured to certain version of the real property pledged to the specified benefits in the event he became use and benefit of the pledgee. The taking totally disabled before death. The constituthen and there, if true, of the real pledged tion of the appellant required the premiums property, would be fraudulent and wrongful, to be paid in periodical installments in the with the intent to deprive the owner of the form of dues and assessments. Some time value and to appropriate it to the use and after the issuance of this policy, Martin bebenefit of the pledgee; and it is evident from came insane, and this condition appears to the facts that, if the facts be true, the real have been treated as a total and permanent pledged diamonds are still in Greenville, and disability under the terms of the policy. Apthere is the place where the appropriation, if pliction was made in his behalf for the benetrue, occurred. The suit is really for the fits payable upon the occurrence of that convalue of the real pledged property, and consedition. This application was denied by the quently the venue would be there in Green- appellant, who at the same time repudiated ville, according to the facts.

the policy upon the ground that in his apWe conclude that the trial court erred, and plication for insurance Martin bad made the judgment is therefore reversed, and the false representations concerning the state cause remanded, with instructions to transfer of his health. Appellant also attempted to the suit in accordance with this opinion. cancel the policy, and refused thereafter to ac

cept any more premiums from Martin or his beneficiary. Following this repudiation of the policy and its attempted cancellation, this

suit was filed by Leon Hairston, as next GRAND LODGE BROTHERHOOD OF friend, for Martin. After alleging the maRAILROAD TRAINMEN V. MAR terial facts and setting out the substance, TIN. (No. 2161.)

terms, and conditions of the policy, its repu(Court of Civil Appeals of Texas. Texarkana. amended original petition concludes with the

diation, and cancellation by the appellant, the Nov. 26, 1919. Rehearing Denied Dec. 11, 1919.)

following prayer for relief: INSURANCE 246 — ONLY PREMIUMS

“Plaintiff here alleges that he has been dam

aged by the acts of the defendant in the amount RECOVERABLE ON REPUDIATION OF BENEFIT here sued for, and that he brings this suit for POLICY DURING INSURED'S LIFE.

the sum of two thousand dollars, the amount The repudiation and attempted cancellation, of the policy, plaintiff here alleging that by without cause, by an insurer of its contract of reason of the allegations hereinbefore made delife insurance during life of insured, though fendant became liable and promised to pay the after a claimed total and permanent disability damages occurring by reason of the breaches of insured which, if such, would entitle him to herein alleged." certain benefits, not terminating or impairing the contract, but it being terminated only by The appellant filed an appropriate defense, the voluntary election of insured to acquiesce in which it reiterated the charge that the in the abandonment, his measure of recovery policy was void because of the false repreis not the value of the policy, but, at most, the sentations made by Martin concerning the premiums paid, with interest.

state of his health. In the trial below the Appeal from District Court, Fannin Coun- court submitted special issues, in response

to which the jury found that Martin had not ty; Ben H. Denton, Judge.

made the false representations charged, and Action by Prince J. Martin against the that had the policy remained in force the Grand Lodge Brotherhood of Railroad Train-premiums thereafter accruing could and men. Judgment for plaintiff, and defendant would have been paid by Martin or some one appeals. Reversed and remanded.

for him. The measure of damages was subO. W. Collister, of Cleveland, Ohio, and mitted in the following form: Thos, P. Steger, of Bonham, for appellant. "What amount of money, if paid now, would

Rosser Thomas, of Dallas, and Cunning. represent plaintiff's damages, if any, he bas? ham & McMahon, of Bonham, for appellee. In answering this last question you will take

into consideration the amount of the policy, the HODGES, J. The appellant is an unin length of time that Prince J. Martin will probacorporated fraternal benefit society organiz- bly live, the cost to plaintiff of carrying said ed under the laws of the state of Ohio, and insurance under the contract issued by the de

fendant." Is engaged in the business of insuring the lives of its members residing in Texas and In answering this last question, the jury elsewhere. In August, 1916, it issued fixed Martin's damages at $1,560. It is cona policy to Prince J. Martin, by the terms of ceded by the appellant that the facts are which it insured his life for the benefit of suflicient to sustain the finding of the jury his wife in the sum of $2,000 payable at his that Martin had not made any false represendeath. The policy also contained a provi. tation concerning his health. That being

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(218 S.W.) true, we then have a case in which the in- It is true that, when one party to an execusurer repudiated its contract of insurance tory contract repudiates his obligation bewithout cause, gave notice of that fact to force the date of performance, the other has the insured, and wrongfully attempted to the legal right to then treat the contract as cancel the policy. There appears to be a abandoned and secure reimbursement, or wide divergence of opinion among the courts, compensation, according to the situation this both in this state and out of it, as to the brought about. When the repudiation of the correct rule for ascertaining the damages contract by the insurer has no legal effect recoverable in cases of this character. Some upon his obligations specified in the policy, of them hold that the rule applied by the and is not attended with any conditions or honorable trial judge in this instance, the circumstances which impair the value of the value of the policy at the time it is repudi- contract, the election of the insured to acated, is the proper one. Supreme Lodge K.quiesce in the abandonment, and thus terof P. v. Neeley, 135 8. W. 1046, and the cases minate the policy, is purely voluntary. The there collated and discussed. See, also, 3 parties are then in the attitude of having Cooley's Briefs on Law of Insurance, pp. agreed to rescind their contract. The appro2840–2848, where the subject is discussed at priate remedy would then be, not an action some length. Others hold that the return of by the insured for a breach of the contract, the premiums paid by the insured with legal but one for reimbursement. There can be no interest is the most satisfactory of compen- breach of an executory `contract in advance sation. Lovejoy v. Washington Life Ins. Co., of its maturity, unless the offending party 149 S. W. 398; K. of P. v. Mims, 167 S. W. has placed some obstacle in the way of per813; Am. Nat. Life Ins. Co. v. Wilson, 176 formance. In such instances, the terminaS. W. 623; Ericson v. Supreme Ruling, 105 tion of the insurance contract results, not Tex. 170, 146 S. W. 160.

from the misconduct of the insurer, but This conflict may be accounted for in part from the act of the insured in exercising his by the diversity of the facts involved in the option to rescind. The policy ceases to be different cases under consideration. What effective because the insured consents that ever conflict there may be regarding the ap- it may be canceled. Hence, whatever right plication of a standard of measuring the he thereby loses is such as he “voluntarily damages, the court are agreed upon this surrenders; and he cannot thus surrender a fundamental proposition: The insured legal right and then claim damages for its should recover the full amount of what he loss. The contract being out of the way by has lost by reason of the wrongful abandon- his concurrence in the acts of the insurer, ment of the contract by the insurer, and no the most the insured may claim is restoramore. The pertinent inquiry in each case tion to his original status. This, it seems, then should be: What rights conferred by may be accomplished by a return of the the insurance contract have been lost by the premiums paid, together with legal interest. wrongful conduct of the insurer? That rule That rule, however, is not applicable to casmust be the proper one which furnishes the es where the cancellation of the policy by the most satisfactory standard for ascertaining insurance company in legal effect terminates that loss. In the case before us the appel- the insurance, or is attended by conditions lant, without cause, repudiated its contract which impair or destroy the value of the inand attempted to cancel the policy of insur-surance contract. In such instances the loss ance. The question arises: What were the resulting from the wrongful conduct of the legal consequences of that misconduct, and insurer may exceed the sum of the premiums what effect did it have upon the contract paid. But whether they do or not, that rule rights of the insured ? What damage did does not furnish the correct standard for he or his beneficiary sustain by reason of loss. The amount recoverable should be conthat attempted cancellation of the policy? | trolled by that standard which best deterEvidently none. The unauthorized repudia- mines the extent of the loss occasioned by tion or abandonment of an executory con the wrong committed, and it is doubtless true tract by one party before the date of per- that the value of the lost insurance policy formance does not affect or lessen his origi- would furnish the most satisfactory test. nal obligation. 6 R. C. L. pp. 929-931.

The argument is made that it is frequentIn this instance the validity of the appel.ly unfair to the insurer to require the relee's policy was not in any respect impaired, turn of the premiums paid ; that to do this or his burdens increased, by the attempted ignores the benefits enjoyed by the insured cancellation. As a life policy it has not during the life of the policy. Some courts matured, and the appellee had the right to hold that the protection thus furnished has continue the payment of his premiums, or, a value which should be taken into account if these were refused, to tender payment, in adjusting the rights of the parties. Conand thus keep the policy alive till death ma- ceding that proposition to be correct, it tured it. Or if he wished to enforce the total could not make the rule requiring a return disability clause, that might have been done of the premiums inapplicable to controversies by appropriate legal proceedings at the time. like the present. Here the insurance com

pany is insisting that the full return of all | er to ascertain and test whether the constitupremiums is the proper measure of the ap tional demands have been complied with should pellee's recovery. But if it were otherwise, be vested in the Legislature itself, and when it the value of the temporary insurance might appears that the authentication and promulgabe deducted from the sum of the premiums conformity to the Constitution, the courts will

tion of the legislative department has been in in making an equitable adjustment of the not permit any further inquiry into the matter, rights of the parties. If the value of that I and will not permit legislative journals to be insurance is such that it should be consider invoked to overturn the authenticated statute. ed, it is sufficiently appreciable to be as. 5. CONSTITUTIONAL LAW Ow48–NoT ANNULcertained, and, when ascertained, to be prac LED MERELY ON SUGGESTION OF DOUBTS AS TO tically accounted for.

CONSTITUTIONALITY. We therefore conclude that in the trial Statutes should not be annulled by the courts below the court applied an improper meas- merely because doubts may be suggested as to ure for ascertaining the appellee's damages, their constitutionality. and for that reason the judgment should be reversed, and the cause remanded.

Appeal from District Court, Travis County ; The remaining assignments need not be V. L. Brooks, Special Judge. considered.

Suit by A. H. King against H. B. Terrell, Comptroller of Public Accounts of the State of Texas, to restrain the latter from issuing

a warrant in payment of salaries. Judgment KING v. TERRELL, Comptroller. for defendant and plaintiff appeals. Affirmed. (No. 6190.)

T. R. Odell and A. G. Dawson, both of (Court of Civil Appeals of Texas. Austin. Jan. Austin, for appellant. 9, 1920. Rehearing Denied

C. M. Cureton, Atty. Gen., Jno. Maxwell Feb. 5, 1920.)

and J. C. Wall, Asst. Attys. Gen., and Black 1. PLEADING Ow403(2)—PETITION AIDED BY & Smedley, of Austin, for appellee. ANSWER. A petition, in an action to enjoin the state

McCARTNEY, Special Judge. The Thirtycomptroller from issuing warrants, on the Sixth Legislature of the state of Texas, enground that a law providing therefor was void, acted into law what was called Senate Bill which referred to a certified copy of the alleged No. 32, the first section of which is as follows: void law, but did not have such copy attached, was cured by the answer, to which was attached Judges of the Supreme Court, Judges of the

"That from and after the passage of this act, a certified copy of such law.

Commission of Appeals, and Judges of the Court 2. STATUTES 61 DECISION OF LEGISLA- of Criminal Appeals, of this state shall each be

TURE THAT BILLS INTRODUCED AT SAME SES- paid an annual salary of six thousand, five SION WERE NOT THE SAME NOT DISTURBED BY hundred dollars, payable in equal monthly in. COURT.

stallments; that the Judges of the several It appearing that the members of the Courts of Civil Appeals of this state shall each Thirty-Sixth Legislature thought that Senate be paid an annual salary of five thousand dolBill No. 32, relating to salaries of judges, was lars, payable in equal monthly installments; not in substance the same as House Bill No. and that the judges of the district courts of 21, relating to salaries of judges, which was this state, shall each be paid an annual salary defeated, the courts ought not to interfere and of four thousand dollars, payable in equal hold that the former was in substance the same monthly installments." as the latter and that the Legislature did not have power to pass it under Const. art. 3, § 34, The plaintiff, A. H. King, appellant in this the question being one upon which the minds of court, and a resident and property owner reasonable men might differ,

of the state of Texas, filed his petition in the 3. STATUTES C 61-PRESUMED THAT LEGISLA- district court of Travis county, Tex., against

TURE HAD NOT PREVIOUSLY INCAPACITATED H. B. Terrell, comptroller of public accounts ITSELF FROM ENACTING STATUTE.

of the state of Texas, asking that the latter be Since the Thirty-Sixth Legislature was law- restrained from issuing any warrant or other fully in session, and had the inherent right to instrument in payment of any salary provided legislate upon the question of fixing the salaries for in said law. of judges, the courts will presume that such

The appellant alleged that the portion of Legislature had not incapacitated itself from enacting into law Senate Bill No. 32 by defeat this law fixing the salary of the district ing at the same session a bill similar in sub- judges was void for the alleged reason that stance, contrary to Const. art. 3, $ 34, and will the act was passed contrary to section 34, not suffer such presumption to be rebutted. article 3, of the Constitution of the state of 4. STATUTES Om 283(2)-STATUTE AUTHENTI

Texas which reads as follows: CATED AND PROMULGATED NOT SUBJECT TO "After a bill has been considered and defeatATTACK.

ed by either house of the Legislature, no bill Where an act appears to be duly authenti- containing the same substance shall be passed cated according to required standards, the powo | into a law during the same session."

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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