(218 S.W.) the provision that "the acceptance of any | ural life, and not an assurance for a single renewal premium shall be optional with the year, with the privilege of renewal from company." It is a part of the contract al- year to year. The policy considered in this leged to have been breached, and when the case was a typical accident and health polifacts are considered in connection with the cy running for a definite term, and such furcontract it is shown there was no breach of ther terms as might be stipulated in renewthe contract by the appellant. al receipts, and it is clear that the insurer reserved the right to decline to renew, and the right to cancel during the original period, or any renewal period, by returning only the unearned portion of the premium. We can see no merit in the contention that the policy only provided that renewal premiums could be refused if paid after the expira- | tion of the previous renewal. If it can be canceled at any time upon return of unearned premium, certainly the company could refuse to accept further premiums and thus terminate the policy. If such was not the case, the company would be bound to accept the premium, but the next day could return the unearned part and cancel the policy. Much stress is laid upon the use of the word "lapsed" in the letter of February 3d, but when the entire letter is read it is apparent that there is no claim that the premium did not arrive within the proper time, but that it was decided by the company to decline to further insure appellee, and the word "lapsed" was used to express the idea that the insurance terminated on January 31st, the date to which it had been extended by premiums previously accepted. We are unable to agree with the contention that if the company terminated the policy appellee, under the terms thereof, was entitled to have all premiums repaid to him. The contract constituted a specific agreement that for a certain consideration appellee would be insured for a certain time. There was no agreement binding appellant to insure him for any further period. Each renewal receipt extended the period, and at the end of each the contract could have been treated as one fully performed by each, and which one refused to renew. In addition, the plain implication is that all premiums shall be retained except those unearned at the time of cancellation. Appellant did not retain any unearned premium. Appellee believes that it would be very unjust to permit the company to terminate the insurance and fail to return the premiums. The policy is apparently liberal enough in its protective features as a health and accident policy, in view of the premium exacted, but it would take an expert in insurance matters to decide whether appellee made a bad contract or a good one. The fact remains that the terms are clear; that appellee was not misled by any fraudulent representations to enter into such contract; that it did not purport to insure him during his entire life; and that it was terminated in substantial compliance with its provisions. The contract considered in the case of Ins. Co. v. Statham, 93 U. S. 24, 23 L. Ed. 789, was one for the term of the assured's nat We conclude that appellee failed to show any breach of the contract by the appellant. The judgment is reversed, and judgment rendered that appellee take nothing by his suit. DALTON et al. v. ALLEN et al. (No. 5789.) (Court of Civil Appeals of Texas. Austin. Dec. 17, 1919. Rehearing Denied SCHOOLS AND SCHOOL DISTRICTS 48(5)— The fact that the county judge, elected November, 1910, served during his entire first term till 1912 without an order fixing his salary as ex officio superintendent of public schools, and for more than a year on his second term after re-election in November, 1912, without such an order, during all of which time he drew $87.50 per quarter for such service, and the fact that the accounts were approved by the commissioners' court, amounted to an agreement between him and the court that the ex officio salary of $87.50 per quarter as fixed for his predecessor applied to him until changed, since otherwise he drew $700 illegally during his first term with the knowledge and consent of the commissioners' court. Appeal from District Court, Mills County; F. M. Spann, Judge. Suit by G. H. Dalton and others against S. H. Allen and others. From judgment for defendants, plaintiffs appeal. Reversed and rendered, in conformity to opinion of Supreme Court reported in 215 S. W. 439. F. P. Bowman, of Goldthwaite, and Wilkinson & McGaugh, of Brownwood, for appellants. White, Cartledge & Wilcox, of Austin, for appellees. JENKINS, J. The order hereinafter referred to was passed when only three of the county commissioners of Mills county were present; the county judge being present, but not participating. Upon these facts, two questions were presented, which we certified to the Supreme Court, namely: For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (1) "Can there be a legal meeting or session | until such order was changed. Otherwise of the commissioners' court, unless the coun- Judge Allen illegally drew, with the knowlty judge is present and presiding?" To edge and consent of the commissioners' which the Supreme Court answered: "Yes." court, $700 during his first term. It will not (2) "Did the fact that the county judge pre- be presumed that such was the intention of sided when his salary was increased, he not either himself or of the commissioners' court. voting on the proposition, render the order Bastrop County v. Hearn, 70 Tex. 567, 8 S. so made invalid?" To which the Supreme W. 302. Court answered: "No." In November, 1908, L. E. Patterson was elected county judge of Mills county. On the 14th of that month the commissioners' court of that county passed the following order: "It is ordered by the court that L. E. Patterson, county judge of Mills county, be allowed the sum of $87.50 out of the available school fund of said Mills county for the quarter beginning November 1, 1908, and ending January 31, and for each succeeding quarter thereafter until the further order of this court." No further order was made in reference to said matter until in February, 1914. Appellee was elected county judge of Mills county in November, 1910, and served for the term of two years, during which time he was regularly paid $87.50 per quarter, upon warrants drawn by himself on the available school fund, for his services as ex officio superintendent of public schools. He was reelected county judge in November, 1912, and served until November, 1914. During this time he was likewise paid $87.50 for each of the eight quarters of his two years' incumbency. The amount for which appellants sued is $464.60. This is the amount that would be due appellee (taking into consideration some other transactions which need not be here stated) if he is not allowed any increase in his salary. As the exact date when the order increasing his salary is not shown, we allow him the benefit of three full quarters. This will entitle appellants to a judgment for $277 against appellees, with legal interest thereon from the date of the judgment in the court below; and the judgment is here so rendered. Accordingly the Judgment of the trial court is reversed and rendered. Reversed and rendered. 1. COURTS 169(6)-AмMOUNT CLAIMED IN EXCESS OF JURISDICTION OF COURT. A cause of action for $32.35 as actual damages and $1,000 as exemplary damages was not within the jurisdiction of the county court. 2. LIMITATION OF ACTIONS 120-RUNNING NOT INTERRUPTED BY FILING OF PETITION In February, 1914, the commissioners' court passed an order which was never placed on the minutes of said court, but which was shown by oral testimony to have been an order raising Judge Allen's ex officio salary as superintendent of public schools from $87.50 per quarter to $150 per quarter. Two of the commissioners testified that they understood this order to be intended to raise The filing of a petition claiming an amount Judge Allen's salary for the entire time of in excess of the court's jurisdiction was not the term which he was then serving, one year the commencement and prosecution of a suit, and three months of which had passed prior and did not interrupt the running of limitato the time such order was passed. Judge tions. Allen drew warrants in his favor on the theory that the increase in his salary related back to the beginning of his term, which warrants were paid. The contention that he was entitled so to do is based on the fact that no order fixing his salary had been previously passed during his term. With this contention we do not agree. We think the fact that he served during his entire first term without an order fixing his salary, and for more than a year of his second term without such order, during all of which time he drew $87.50 per quarter for his services, and that his accounts were approved by the commissioners' court, amount to an agreement between him and the court that the ex officio salary as fixed for Judge Patterson applied to his successor 3. LIMITATION OF ACTIONS 120-RUNNING INTERRUPTED BY FILING OF AMENDED PETI- The filing of a paper designated an amended petition stating a cause of action within the jurisdiction of the court was the commencement of a suit and interrupted the running of limitations, though the original petition stated a cause of action in excess of the court's jurisdiction. 4. LIMITATION OF ACTIONS 24(2)-ACTION FOR ACTUAL DAMAGES FOR CARRIER'S BREACH carrier's refusal to transport a passenger pur- For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (218 S.W.) In an action against a railroad company for refusing to transport plaintiff between its depot and that of another company as required by her ticket, where the driver denied that he was the railroad's agent or that he told plaintiff he was the railroad transfer man, instruction held erroneous as assuming that he was defendant's agent. 7. CARRIERS 275-PETITION INSUFFICIENT TO AUTHORIZE RECOVERY FOR DOCTOR'S BILLS FOR BREACH OF CONTRACT. In an action against a carrier for refusing to transport a passenger, a petition alleging that she suffered actual damages in a specified sum, including among other items one for medicine and doctors, but not alleging that she paid the sum claimed, or assumed to pay it, or that it was a reasonable charge, did not support a recovery for such item. pons, one of which entitled appellee to a transfer from the depot of appellant at Wharton to the depot of the Galveston, Harrisburg & San Antonio Railway Company at the same place, and the other entitled her to a transfer from the depot of the G., H. & S. A. Ry. Co. at Wharton to the depot of appellant on her return trip. On the 18th day of January, 1918, almost two years after acts of appellant complained of occurred, appellee filed her original petition in the county court of Galveston county, wherein she alleged and prayed for actual damages in the sum of $32.35, and for exemplary damages in the sum of $1,000, a total sum of $1,032.35. On the 10th day of April, 1918, more than two years after the alleged cause of action arose, the court, being advised that the suit was for a recovery of a sum beyond the jurisdiction of the county court, informed plaintiff that the court had no jurisdiction over the subject-matter of the suit as filed. Thereupon plaintiff, by leave of the court, filed her first amended petition on the 12th day of April complaining of the wrongs of appellant; alleged her damages at $64.35 actual and $800 exemplary, a total of $864.35. On the 25th day of June, 1918, plaintiff filed her second amended petition, upon which she went to trial. In this second amended petition she alleged, among other things, that on the 24th day of February, 1916, she purchased the ticket with coupons attached above described; that while en route from Eagle Lake to Victoria on said 24th of February, 1916, she left appellant's train at Wharton, and for the purpose of procuring transportation from the depot of appellant at Wharton to the depot of the G., H. & S. A. Ry. Co. at the same place she approached an omnibus driver, and presented to him her said ticket together with said transfer cou Appeal from Galveston County Court; pons, and that said driver refused to transGeorge E. Mann, Judge. Action by C. N. Gordon against the Gulf, Colorado & Santa Fé Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded. Terry, Cavin & Mills and Frank J. Wren, all of Galveston, for appellant. Fuller & Brady, of Galveston, for appellee. LANE, J. On the 24th day of February, 1916, appellee, C. N. Gordon, purchased from the appellant, Gulf, Colorado & Santa Fé Railway Company, at Eagle Lake, Tex., a ticket which by its terms entitled appellee to transportation over its line from Eagle Lake to Wharton, Tex., and from thence over the line of the Galveston, Harrisburg & San Antonio Railway Company to Victoria, Tex., and to return to Eagle Lake over the same lines. Attached to the ticket were two cou port her from appellant's depot to the depot of the G., H. & S. A. Ry. Co.; that he gave as his reason for not giving her such transporta tion that she was a negro and that he did not transport negroes in his omnibus. She also alleged inferentially that the man she so approached, and to whom she exhibited her ticket, was an agent of appellant. She further alleged that there was no mode of transportation from one of said depots to the other except the omnibus owned and controlled by the man approached by her, and that by reason of the failure and refusal of appellant to transport her from its depot to the depot of the G., H. & S. A. Ry. Co. she was forced to walk to the latter; that on her return trip from Victoria, Tex., to Eagle Lake, Tex., on about the 26th day of February, 1916, she again presented her ticket which she had purchased from defendant, and that plaintiff was again refused transporta For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes tion from the depot of the G., H. & S. A. I she sought to recover judgment for the sum Ry. Co. to the depot of defendant, and by rea- of $1,032.35 in the county court was a nullity son thereof was forced to walk, and that by and utterly void, and did not have the effect reason of the refusal to permit plaintiff to to interrupt the running of limitation against ride on said omnibus plaintiff failed to make plaintiff's cause of action, because the amount connection with defendant's train and was sued for was beyond the jurisdiction of the forced to remain in Wharton overnight, at county court, and that the filing of the first her expense in the sum of $3; that by reason amended petitions by the permission of the of the willful, wanton, malicious, and gross court was the beginning of an entirely new negligence of the defendant's servants, suit, and that, as it and all subsequent agents, and employés in refusing transporta- amendments were filed more than two years tion to plaintiff, as hereinbefore alleged, she after the accrual of plaintiff's cause of acwas made sick and suffered actual damages tion, such cause was barred by the two-year in the sum of $300, consisting of expenses in- statute of limitation, and that, as such bar curred in Wharton for lodging, meals, etc., in was shown upon the face of the pleadings of the sum of $3, $25 for medicine and doctors, plaintiff, the court erred in not sustaining and $32 in loss of time as a school-teacher, defendant's demurrer; second, that if the deand that all of said damages were caused by fendant be in error in its contention that the the negligence of the defendant; that by rea- whole of plaintiff's claim was barred by the son of defendant's agents, servants, and em- two-year statute of limitation, still the claim ployés maliciously, knowingly, and wantonly for exemplary damages was barred under and without any just cause refusing trans- said statute, as it was based upon an alleged portation to plaintiff in omnibus owned and tort, and not upon a breach of contract, and controlled by defendant, upon which plaintiff the court erred in not so holding. had, for a valuable consideration, paid to defendant for transportation thereon, defendant is liable to plaintiff for exemplary damages, in that the acts and conduct of defendant's agents, servants, and employés were maliciously and intentionally done, in the sum of $500. Her prayer was for judgment against appellant for $300 actual damages and $500 exemplary damages. Defendant, appellant here, filed its answer upon which the cause was tried on the 25th day of June, 1918, wherein it demurred to plaintiff's petition, for the reason that said petition shows on its face that more than two years had elapsed from the date of the accrual of plaintiff's cause of action, to wit, February 24 and 26, 1916, before the suit was legally brought, if it was ever so brought, and therefore it is made to appear that said cause was barred by the two-year statute of limitations. Answering to the merits of the cause, it denied generally, pleaded not guilty, and specially denied that the man approached by plaintiff for transportation from depot to depot at Wharton was its agent, servant, or employé. It also pleaded the two-year statute of limitation in bar of plaintiff's right to recover. It admitted, however, that the ticket, as alleged by plaintiff, was sold by it to her, and says that it is advised and be lieves that the transfer coupons attached thereto were never used by her, and that she is entitled to 65 cents refund, the value there of, which sum it tendered to plaintiff. The court overruled defendant's demurrer. A jury before whom the cause was tried returned a general verdict in favor of plaintiff for $60 actual and $300 exemplary damages. Defendant has appealed. By the first and second assignments it is in substance contended: First, that the filing of plaintiff's original petition by which [1-3] The county court was without jurisdiction of the cause of action declared upon in the original petition. The filing of the petition was not the "commencement and prosecution of a suit,” and did not operate as "an interruption of limitation." Pecos & N. T. Ry. Co. v. Rayzor, 106 Tex. 544, 172 S. W. 1103, and authorities there cited. However, the filing of the paper designated as the first amended petition either with or without permission of the court was the "commencement of a suit," and did have the effect to interrupt limitation, if the cause of action had not already been barred before it was filed. This new suit was for a sum within the jurisdiction of the county court, and after it was filed appellant appeared and filed its answer thereto. [4] We next come to the inquiry as to whether the cause of action as made by the so-called first amended petition and subsequent amendments was barred by the twoyear statute of limitation prior to the filing of the first of said amendments. It is shown by the petition itself that it was not filed until more than two years had elapsed after the accrual of the cause of action declared upon, so, if the two-year statute applies, the cause would, at the time his suit was filed, be barred. By article 5688, Vernon's Sayles' Civil Statutes, 1914, it is provided: "There shall be commenced and prosecuted within four years after the cause of action shall have accrued, and not afterward, all actions or suits in court of the following description: "1. Actions for debt when the indebtedness is evidenced by or founded upon any contract in writing." The question now presented is whether the cause of action stated in the so-called first amended petition and subsequent amendments comes under the provisions of the two (218 S.W.) or four year statute of limitation. If it (a meaning was attached to it by the Legislature. comes under the provisions of the first, it was The more reasonable construction, and that barred when this suit was commenced, but if which best harmonizes with the general proviunder the latter, it was not barred at the sions and policy of the statute, we think, is to time of the commencement of the suit. This consider the terms 'actions of debt, grounded on any contract in writing,' as including all suits question, we think, has been decided adverse- brought to recover money for the breach of a ly to the contention of appellant by the fol- contract in writing, without regard to the techlowing authorities: Elder Dempster & Co. nical distinction between debt and damages. v. St. L. Ry. Co., 105 Tex. 628, 154 S. W. The present action was brought upon a contract 975; Davies v. Texas C. Ry. Co., 62 Tex. Civ. in writing, to pay a sum certain in money, App. 599, 133 S. W. 295. technically a debt, and an unliquidated sum for the breach of the contract to deliver specific property, technically damages. Both demands arise upon the breach of the same written contract; and it cannot have been intended in such a case that one period of limitation should bar one part of the cause of action, and a different period another part, arising upon the same contract, merely because, in technical legal phrase, the one is called debt, and the other damages. The suit, being for the recovery of money for the breach of a written contract, comes within the reason and intention of the provision prescribing the limitation of actions for money demands arising upon written contracts; which being four years, the court did not err in holding that the right of action was not barred by the statute." We think the sale of the ticket, with the transfer coupons attached, by appellant to appellee for a valuable consideration, and an acceptance thereof by appellee, constituted a contract between the parties. That it was in writing is undisputed. Viewed with reference to the statute of limitation, an action against a carrier for damages resulting from a breach of contract for safe carriage of freight or person is one founded upon a contract, and not for tort, and if such contract is one in writing, the cause of action is governed by the statute fixing the period within which actions for breach of contract may be brought. 25 Cyc. p. 1033, § 3; Davies v. Railway Co., 62 Tex. Civ. App. 599, 133 S. W. 295; Robinson v. Varnell, 16 Tex. at page 389; Elder Dempster Co. v. Railway Co., 105 Tex. 628, 154 S. W. 975. In the case last cited the Supreme Court quotes with approval from Robinson v. Varnell, as follows: We hold that appellee's claim for actual damages, as set forth in his petition, is founded upon a contract in writing, and is governed by section 1 of article 5688, Vernon's Sayles' Civil Statutes, which declares that "actions for debt, where the indebtedness is evidenced by or founded upon any contract in writing" may be brought in four years. "It is admitted that the action is founded on a contract in writing; but it is insisted the limitation of four years does not apply, because [5] The second contention of appellantit is not an 'action of debt.' It is true it is not that is, that the claim of plaintiff for exemian action of debt, nor an action to recover a plary damages, even if sufficiently alleged, debt, technically so called. Technically we have no such action as an action of debt. If constituted at most a claim for damages for we were to construe the statute literally, accord- tort, and is therefore governed by the twoing to the technical signification of its terms, year statute of limitation and was barred on it is plain the present case would not come the 12th day of April, when this suit was within any of its provisions. It is not technical- first legally filed-is sustained. While it ly an action of debt, or an action to recover has been held in some cases that a cause of a debt; but it is an action to recover a sum of action for breach of contract and for dammoney, technically damages founded on the breach of a contract in writing for the delivery in one suit where both grew out of the same ages for a tort may be appropriately joined of specific property. * It must, then, receive such a reasonable and liberal interpreta- transaction, and, if the tort was maliciously tion as will give it effect according to the spirit committed or was due to the gross negligence and intention of the statute. To do this, we of the wrongdoer, exemplary damages might must disregard the technical distinction of forms be recovered therefor (Railway Co. v. Shirand terms, and look to the substance and mani-ley, 54 Tex. 142; S. W. T. & T. Co. v. Luckett, fest object of the statute. That, obviously, was 60 Tex. Civ. App. 117, 127 S. W. S56), we to prescribe a limitation of all actions for the know of no decision holding that such cause recovery of money upon contracts in writing, of action for tort would be governed by the without reference to any technical distinction of terms, which have no place in our system. statute of limitation of four years. Actions We cannot suppose that either the term 'ac- for damages for tort are generally, under the tions' or 'debt' was used in a strictly technical statute of limitation, barred in two years, common-law sense; the term 'actions' with ref- and we see no good reason for applying a diference to common-law forms, or 'debt' in refer- ferent rule in this case. ence to the strict common-law meaning of that term. We cannot give that construction to the term 'actions,' for the obvious reason that we have not the common-law forms of action; and though there would not be the same difficulty in giving a technical meaning to the term 'debt,' there is no more reason for supposing that such It would serve no useful purpose to discuss in detail or specifically pass upon each of the remaining 14 assignments of error presented in appellant's brief, and we shall content ourselves with a brief statement of the additional grounds upon which we have con |