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ter company at the expense of the consumer or owner of the property who shall pay to the water company full cost of labor and materials necessary to lay suitable and durable service pipes, with all proper and usual fittings, including curb cock and curb box," etc. The contract, as seen, provides the waterworks company "shall in no event be responsible for damages to persons or to property arising from defective or inadequate service, connections, or appurtenances," etc.

Here the defendant in error did not place the cut-off box in the sidewalk, and it was no part of its duty under the contract to do so, and it owed no duty to plaintiff in error by reason thereof.

This case is almost "on all fours" with the case of San Antonio Water Supply Co. v. Castle, 199 S. W. 300, decided by this court, and we regard what was said there, on a similar contention, applies here. The court in that case said:

"If the evidence had been of such a character as to go to the jury, that is, if there had been an admission that the waterworks company installed the cut-off box, or testimony to that effect, special charge No. 4 should have been given, as it affirmatively presented the water company's defense that in 1907 the cutif the condition complained of by plaintiffs was off box was taken out and put back in, and, then brought about by some one other than the water company, it would not be liable. Railway v. McGlamory, 89 Tex. 635, 35 S. W. 1058; Railway v. Rogers, 91 Tex. 58, 40 S. W. 956. The eleventh assignment is therefore well taken, and must be sustained."

[1, 2] It is the duty of municipal governments, which are public agencies, to furnish her citizens with all such necessary utilities, as water, lights, streets, and such other public conveniences as are necessary for their protection and benefit. It may contract with some other person or corporation to perform that service for it, just the same as it could do. It has here made the contract with defendant in error to furnish her citizens with water, and provided under certain conditions the water company shall not be liable for damages not growing out of its own independent, unlawful acts, but caused by the failure of the citizen to perform his part of the obligation to secure the services as in this case. Predicating the suit for tort upon the breach of duty growing out of that 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 preJan. 22, 1920.) pared opinion, laid down the rules of negligence in such contracts, and says:

"The true question always is: Has the defendant committed a breach of duty apart from the contract? If he has only committed a breach of the contract, he is liable only to those with whom he has contracted; but, if he has committed a breach of duty, he is not protected

by setting up a contract in respect to the same matter with another."

This contract was not made with plaintiff in error as a class to which he belongs, by virtue of which appellant would have a right to sue for damages for injuries for which the defendant has contracted to indemnify, but the very contract, the basis of the suit, guarantees protection to the waterworks company against such actions. There is no privity. House v. H. W. Co., supra.

The contract in this case is unlike the contract described in Washington Gas Co. v. District of Columbia, 161 U. S. 325, 16 Sup. Ct. 564, 40 L. Ed. 712, relied upon by petitioner. There all the pipes and connections were required to be made and maintained by the company and every duty imposed upon the gas company to construct and maintain and operate and in no sense relieved from liability or duty in respect thereto, by its charter.

We have considered all the assignments, and they are overruled, and the judgment is

affirmed.

VENUE

14-ACTION FOR CONVERSION BY PLEDGEE MUST BE BROUGHT IN COUNTY WHERE CONVERSION TOOK PLACE.

Where plaintiffs, pledgors, lived in S. county, and defendant, pledgee, in H. county, where pledge was made and property held, and plainagreeing to deliver the pledged diamonds in F. tiffs repaid the borrowed money, defendant

county, where he delivered other inferior diamonds, defendant was guilty of conversion in H. county, and where plaintiffs kept the diamonds delivered and brought action for damages, the venue was in H. county, and not in F. county, under Rev. St. 1911, art. 1830, ex

ception 7.

Appeal from Franklin County Court; W. R. Irby, Judge.

Action by J. E. Hamilton and wife against S. B. Brooks. Defendant's plea of special privilege overruled, judgment for plaintiffs, and defendant appeals. Reversed, with instructions to transfer cause.

The appellees sue for damages for alleged fraud and deceit. The plaintiffs reside in Smith county, and the defendant resides in Hunt county. The defendant's plea of privilege to be sued in Hunt county was overruled by the court, and that is the sole question for decision on appeal.

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

(218 S.W.)

sale or deceit and misrepresentation of kind of property in mutual exchange, is neither involved nor presented by the facts of the case. The agreed statement of the case which is for our decision under the facts states:

"Plaintiff alleges and bases her rights to sue in Franklin county in that the defendant fraudulently and for the purpose of defrauding plaintiff substituted diamonds of an inferior grade and weight and placed them in the express office of Greenville marked C. O. D. ad

The appellees base their right to try the case in Franklin county upon the seventh exception to article 1830, R. S. 1911. Their petition alleged that certain diamonds of Mrs. Hamilton's were delivered to the defendant in Hunt county as collateral security for payment of the sum of $450 borrowed in money, and that Mrs. Hamilton while at Greenville agreed to redeem the diamonds by paying the $450 for which they had been pledged, and that the defendant agreed that he would deliver 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 defendant substituted diamonds of similar size and inferior grade and placed them in the express office and shipped them to Mt. Vernon C. O. D. The plaintiffs kept the diamonds shipped, and sued for damages. The agreed facts are:

"Plaintiff Mrs. Nell Hamilton was indebted to S. B. Brooks, of Greenville, Tex., in the sum of $450, which she borrowed from him during the year 1913, and to secure which she had pledged with said Brooks three certain diamond rings. In July, 1918, Mrs. Nell Hamilton visited Greenville, Tex., and tendered to said Brooks the sum of $450 and requested the return of said diamond rings. Brooks told her that the diamonds were mounted with another diamond in a ring belonging to his wife and that he would have them taken from said ring and send them to Mr. Patton at Mt. Vernon, Tex., by express C. O. D. $450, and that she could take said rings upon payment of said sum.

Bank, Mt. Vernon, Tex., where the diamonds of $450 to the express company on the order were delivered to plaintiff after the payment of the defendant."

As pledgee in possession of the original diamonds, as shown by the evidence, it was the legal duty of the defendant to return and redeliver the very thing pledged on payment or tender of payment of the debt by the pledgor. The pledgee is not authorized to return or substitute other property for the particular property pledged; and if it be true that the pledgee did return by express "substituted diamonds" instead of the very diamonds pledged in the first instance, then the pledgee has violated his agreement and the duty he The "substituted diaowed the pledgor. monds" would not be the diamonds of the pledgor, but the property of the sender, and the pledgee would still be the pledgee in actual possession and holding the original pledged diamonds. The forwarding or offer

"That about the 31st day of July, 1918, Brooks deposited said diamonds with the Ameri-ing to deliver "substituted diamonds," if true, can Express Company in Greenville, Tex., addressed to Mr. Patton, c/o First National Bank, Mt. Vernon, Tex., C. O. D. $450.

Mrs. Nell Hamilton and her husband claim that they paid the $450 and accepted said diamonds at Mt. Vernon, Tex., on or about the 31st day of July, 1918, and that said diamonds were not the same diamonds she had delivered to the defendant Brooks in 1913, but were different and very inferior diamonds to the ones she delivered to him and worth only about $450, whereas the plaintiffs claim that the diamonds that were delivered to Brooks in 1913 were worth the sum of $1,400 in 1918."

would not in any legal sense relieve the defendant of responsibility of delivering the real pledged property to the true owner. Thus, when the pledgee delivered to the express company "substituted" diamonds, if true, he was not legally complying with his legal duty and contract of pledge, but was, in legal effect, converting, if true, the pledged property to his own use and benefit. The real pledged diamonds of the pledgor would still remain and be, in a legal sense, in Greenville in the possession of the pledgee; and the taking, if true, of the pledged property in Green

Neyland & 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 plaintiffs, one of conversion, which would be dependent upon the fact of conversion of the real pledged property, and not upon the particulars in which he has violated the pledge.

LEVY, J. (after stating the facts as above). According to the agreed facts Mrs. Hamilton, the plaintiff, was the owner of certain diamonds which were placed in the possession 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 | erty, if true, operates, as a legal consequence,

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 conse- dition. 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 application for insurance Martin had made false representations concerning the state of his health. Appellant also attempted to cancel the policy, and refused thereafter to accept 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 friend, for Martin. After alleging the material facts and setting out the substance, terms, and conditions of the policy, its repudiation, and cancellation by the appellant, the amended original petition concludes with the following prayer for relief:

We conclude that the trial court erred, and the judgment is therefore reversed, and the cause remanded, with instructions to transfer the suit in accordance with this opinion.

GRAND LODGE BROTHERHOOD OF
RAILROAD TRAINMEN v. MAR-
TIN. (No. 2161.)

(Court of Civil Appeals of Texas.

Texarkana.

Nov. 26, 1919. Rehearing Denied
Dec. 11, 1919.)

INSURANCE 246-ONLY PREMIUMS PAID
RECOVERABLE ON REPUDIATION OF BENEFIT
POLICY DURING INSURED'S LIFE.

The repudiation and attempted cancellation, without cause, by an insurer of its contract of life insurance during life of insured, though after a claimed total and permanent disability of insured which, if such, would entitle him to certain benefits, not terminating or impairing the contract, but it being terminated only by the voluntary election of insured to acquiesce in the abandonment, his measure of recovery is not the value of the policy, but, at most, the premiums paid, with interest.

"Plaintiff here alleges that he has been damaged by the acts of the defendant in the amount here sued for, and that he brings this suit for the sum of two thousand dollars, the amount of the policy, plaintiff here alleging that by reason of the allegations herein before made defendant became liable and promised to pay the damages occurring by reason of the breaches herein alleged."

The appellant filed an appropriate defense, in which it reiterated the charge that the policy was void because of the false representations made by Martin concerning the state of his health. In the trial below the

Appeal from District Court, Fannin Coun- court submitted special issues, in response ty; Ben H. Denton, Judge.

Action by Prince J. Martin against the Grand Lodge Brotherhood of Railroad Trainmen. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

C. W. Collister, of Cleveland, Ohio, and Thos. P. Steger, of Bonham, for appellant. Rosser Thomas, of Dallas, and Cunningham & McMahon, of Bonham, for appellee.

to which the jury found that Martin had not made the false representations charged, and that had the policy remained in force the premiums thereafter accruing could and would have been paid by Martin or some one for him. The measure of damages was submitted in the following form:

fendant."

"What amount of money, if paid now, would represent plaintiff's damages, if any, he has? 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 deIs 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 sufficient 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 For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(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 without cause, gave notice of that fact to the insured, and wrongfully attempted to cancel the policy. There appears to be a wide divergence of opinion among the courts, both in this state and out of it, as to the correct rule for ascertaining the damages recoverable in cases of this character. Some of them hold that the rule applied by the honorable trial judge in this instance, the value of the policy at the time it is repudiated, is the proper one. Supreme Lodge K. of P. v. Neeley, 135 S. W. 1046, and the cases there collated and discussed. See, also, 3 Cooley's Briefs on Law of Insurance, pp. 2840-2848, where the subject is discussed at some length. Others hold that the return of the premiums paid by the insured with legal interest is the most satisfactory of compensation. Lovejoy v. Washington Life Ins. Co., 149 S. W. 398; K. of P. v. Mims, 167 S. W. 843; Am. Nat. Life Ins. Co. v. Wilson, 176 S. W. 623; Ericson v. Supreme Ruling, 105 Tex. 170, 146 S. W. 160.

tory contract repudiates his obligation beforce the date of performance, the other has the legal right to then treat the contract as abandoned and secure reimbursement, or compensation, according to the situation this brought about. When the repudiation of the contract by the insurer has no legal effect upon his obligations specified in the policy, and is not attended with any conditions or circumstances which impair the value of the contract, the election of the insured to acquiesce in the abandonment, and thus terminate the policy, is purely voluntary. The parties are then in the attitude of having agreed to rescind their contract. The appropriate remedy would then be, not an action by the insured for a breach of the contract, but one for reimbursement. There can be no breach of an executory contract in advance of its maturity, unless the offending party has placed some obstacle in the way of performance. In such instances, the termination of the insurance contract results, not from the misconduct of the insurer, but from the act of the insured in exercising his option to rescind. The policy ceases to be effective because the insured consents that it may be canceled. Hence, whatever right he thereby loses is such as he voluntarily surrenders; and he cannot thus surrender a legal right and then claim damages for its loss. The contract being out of the way by his concurrence in the acts of the insurer, the most the insured may claim is restoration to his original status. This, it seems, may be accomplished by a return of the premiums paid, together with legal interest. That rule, however, is not applicable to cases where the cancellation of the policy by the insurance company in legal effect terminates the insurance, or is attended by conditions which impair or destroy the value of the in

This conflict may be accounted for in part by the diversity of the facts involved in the different cases under consideration. What ever conflict there may be regarding the application of a standard of measuring the damages, the court are agreed upon this fundamental proposition: The insured should recover the full amount of what he has lost by reason of the wrongful abandonment of the contract by the insurer, and no more. The pertinent inquiry in each case then should be: What rights conferred by the insurance contract have been lost by the wrongful conduct of the insurer? That rule must be the proper one which furnishes the most satisfactory standard for ascertaining that loss. In the case before us the appellant, without cause, repudiated its contract and attempted to cancel the policy of insur-surance contract. In such instances the loss ance. The question arises: What were the legal consequences of that misconduct, and what effect did it have upon the contract rights of the insured? What damage did he or his beneficiary sustain by reason of that attempted cancellation of the policy? Evidently none. The unauthorized repudiation or abandonment of an executory contract by one party before the date of performance does not affect or lessen his original obligation. 6 R. C. L. pp. 929-931.

resulting from the wrongful conduct of the insurer may exceed the sum of the premiums paid. But whether they do or not, that rule does not furnish the correct standard for loss. The amount recoverable should be controlled by that standard which best determines the extent of the loss occasioned by the wrong committed, and it is doubtless true that the value of the lost insurance policy would furnish the most satisfactory test. The argument is made that it is frequent

In this instance the validity of the appel-ly unfair to the insurer to require the relee's policy was not in any respect impaired, or his burdens increased, by the attempted cancellation. As a life policy it has not matured, and the appellee had the right to continue the payment of his premiums, or, if these were refused, to tender payment, and thus keep the policy alive till death matured it. Or if he wished to enforce the total disability clause, that might have been done by appropriate legal proceedings at the time.

turn of the premiums paid; that to do this ignores the benefits enjoyed by the insured during the life of the policy. Some courts hold that the protection thus furnished has a value which should be taken into account in adjusting the rights of the parties. Conceding that proposition to be correct, it could not make the rule requiring a return of the premiums inapplicable to controversies like the present. Here the insurance com

pany is insisting that the full return of all premiums is the proper measure of the appellee's recovery. But if it were otherwise, the value of the temporary insurance might be deducted from the sum of the premiums in making an equitable adjustment of the rights of the parties. If the value of that insurance is such that it should be considered, it is sufficiently appreciable to be ascertained, and, when ascertained, to be practically accounted for.

er to ascertain and test whether the constitutional demands have been complied with should be vested in the Legislature itself, and when it appears that the authentication and promulgaconformity to the Constitution, the courts will tion of the legislative department has been in not permit any further inquiry into the matter, and will not permit legislative journals to be invoked to overturn the authenticated statute. 5. CONSTITUTIONAL LAW 48-NOT ANNULLED MERELY ON SUGGESTION OF DOUBTS AS TO CONSTITUTIONALITY.

We therefore conclude that in the trial below the court applied an improper measure for ascertaining the appellee's damages, and for that reason the judgment should be reversed, and the cause remanded. The remaining assignments need not be V. L. Brooks, Special Judge. considered.

Statutes should not be annulled by the courts merely because doubts may be suggested as to their constitutionality.

KING v. TERRELL, Comptroller.
(No. 6190.)

Appeal from District Court, Travis County;

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 for defendant and plaintiff appeals. Affirmed. T. R. Odell and A. G. Dawson, both of

(Court of Civil Appeals of Texas. Austin. Jan. Austin, for appellant.
9, 1920. Rehearing Denied
Feb. 5, 1920.)

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A petition, in an action to enjoin the state comptroller from issuing warrants, on the ground that a law providing therefor was void, which referred to a certified copy of the alleged void law, but did not have such copy attached,

was cured by the answer, to which was attached

a certified copy of such law.
2. STATUTES 61 DECISION OF LEGISLA-
TURE THAT BILLS INTRODUCED AT SAME SES-

SION WERE NOT THE SAME NOT DISTURBED BY
COURT.

It appearing that the members of the Thirty-Sixth Legislature thought that Senate Bill No. 32, relating to salaries of judges, was not in substance the same as House Bill No. 21, relating to salaries of judges, which was defeated, the courts ought not to interfere and hold that the former was in substance the same as the latter and that the Legislature did not have power to pass it under Const. art. 3, § 34, the question being one upon which the minds of reasonable men might differ.

3. STATUTES 61-PRESUMED THAT LEGISLATURE HAD NOT PREVIOUSLY INCAPACITATED

ITSELF FROM ENACTING STATUTE.

C. M. Cureton, Atty. Gen., Jno. Maxwell and J. C. Wall, Asst. Attys. Gen., and Black & Smedley, of Austin, for appellee.

MCCARTNEY, Special Judge. The ThirtySixth Legislature of the state of Texas, enacted into law what was called Senate Bill No. 32, the first section of which is as follows:

Judges of the Supreme Court, Judges of the "That from and after the passage of this act,

Commission of Appeals, and Judges of the Court of Criminal Appeals, of this state shall each be paid an annual salary of six thousand, five hundred dollars, payable in equal monthly installments; that the Judges of the several Courts of Civil Appeals of this state shall each be paid an annual salary of five thousand dollars, payable in equal monthly installments; and that the judges of the district courts of this state, shall each be paid an annual salary of four thousand dollars, payable in equal monthly installments."

The plaintiff, A. H. King, appellant in this court, and a resident and property owner of the state of Texas, filed his petition in the district court of Travis county, Tex., against H. B. Terrell, comptroller of public accounts 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 Legislature had not incapacitated itself from enacting into law Senate Bill No. 32 by defeating at the same session a bill similar in substance, contrary to Const. art. 3, § 34, and will not suffer such presumption to be rebutted. 4. STATUTES

CATED AND
ATTACK.

283(2)-STATUTE AUTHENTIPROMULGATED NOT SUBJECT TO

Where an act appears to be duly authenticated according to required standards, the pow

The appellant alleged that the portion of this law fixing the salary of the district judges was void for the alleged reason that the act was passed contrary to section 34, article 3, of the Constitution of the state of Texas which reads as follows:

"After a bill has been considered and defeated by either house of the Legislature, no bill containing the same substance shall be passed 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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