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(218 S.W.) said notes. Appellant answered by generals that after the death of the husband appellee demurrer and general denial. The cause hired him and paid him from $1.25 to $1.50 went to trial on the 16th day of December, a day for his work. Appellee testified to 1918, before a jury. When appellee closed the same effect. her evidence, appellant made a motion for an It is true the farm was rented and the instructed verdict in its favor, which motion ground planted in cotton was broken and was by the court overruled, to which action bedded before the husband's death, but we of the court appellant duly excepted. When do not think these facts of controlling importhe evidence was all in and both sides had tance in determining the question before us. rested, the court, over appellant's objections The mere renting of the farm and bedding and exceptions, charged the jury peremptorily of the land to be planted in cotton by the to find for appellee in the full amount sued husband was not sufficient, in our opinion, for. Appellant's motion for a new trial be to fix the status of the crop planted, cultivating overruled, it appealed.

ed, and raised thereon by the wife after the [1] It is contended for the appellant that death of the husband, as that of community the trial court erred in directing the jury property. The status of its title, as belongto retnrn a verdict in favor of the appellee ing to the community estate of appellee and and in overruling appellant's motion for a her deceased husband or to her separate esperemptory instruction to find for it, because tate, is determined rather by the planting of the undisputed evidence shows that the notes, the cotton seed and the cultivation of the to the payment of which the money sued for plant to the maturity of the crop, than by the was applied, were the community debts of bedding of the ground preparatory to such appellee and her deceased husband, and said planting and cultivation. The original propmoney, or at least a part of it, was the com- erty right in the cotton produced by the munity property of appellee and her deceased planting and cultivation of appellee does not, husband, and therefore, subject to the pay- we think, date from the mere bedding of ment of said notes; that said notes being the land, but from the sowing of the seed, community debts of appellee and her de- which, aided by appellee's cultivation, brought ceased husband, and the money used by ap | into existence the cotton crop in question. pellant in the payment of said notes being if this view is correct, the original property their community property, and appellant hav- right was not acquired during the marriage ing said money on deposit and being the of appellee and her husband, and the cotton owner of the notes, had the legal authority in question was not communicy property, but to apply said funds to the payment thereof. the separate property of the appellee. We The appellee denies that the money on de have examined the cases cited by appellant posit with appellant was the community prop in support of its contention, but we believe erty of herself and her deceased husband, but asserts that said money was her sep. is perhaps the case of Booker v.

they are not applicable. The nearest in point

Booker, 207 arate property, not subject to the payment S. W. 675; but the present case is easily disof said notes, and therefore appellant had tinguishable from that in its facts. no right or authority whatever to apply the

[2] But appellant contends that same to the payment of said notes. The principal question for decision, then, is: Was the Even if the cotton crop raised by appellee cotton crop raised by appellee on the farm during the year 1917 was her separate properwhich had been rented for the year 1917 be- ty, "the court erred in peremptorily instructfore the death of her husband her separate ing the jury to find for appellee for the full

amount sued for, because the undisputed eviproperty or the community property of herself dence shows that appellee's deceased husband and her deceased husband? We conclude the had on deposit with appellant at the time of his facts show the crop to be appellee's separate death the sum of $60.97, for which amount, in property and that the proceeds arising from any event, appellant was entitled to credit.” the sale thereof were not subject to the payment of community debts. It is undisputed This contention we are not prepared to susthat appellee bought and planted the seed aft- tain. It is not at all clear from the evidence er the death of her husband, and thereafter, that appellee's husband had on deposit with together with the aid of her children and appellant at the date of his death the sum Mr. Forrester, a hired man, cultivated and mentioned. The proper construction of apgathered the crop. Appellee testified without pellee's testimony on the subject is that she contradiction that after her husband's death did not of her own knowledge know of any she bought the cotton seed to plant, planted such deposit. She said : the seed, hired the work done, and made and

"If I understand this bank book right, there gathered the crop, and that she herself

was $60.97 in the bank at the time that Mr. “worked in the crop from early cotton chop-Cox died. It is styled there in the book, Mrs. ping time until August." The man Forrester Mollie Cox, March 26th, 1917, $60.97, and that who helped to make the cotton crop had been is what he had left in the bank, I suppose, and hired by appellee's husband, but he testified they transferred it from him to me."

The bank book in question was furnished plaintiff had exercised due care, on reversal of to appellee (not to her husband) by the ap a judgment in favor of plaintiff the appellate pellant, and the only deposit shown thereby court cannot render a judgment for defendant. corresponding in amount to the one she tes 4. NEGLIGENCE 142–INCONSISTENT FINDtified about appears to have been deposited INGS NOT BASIS FOR JUDGMENT. March 26, 1917, which was after the death of A judgment for plaintiff should not be renthe husband. That the amount was in the dered, where the jury in answer to one spebank at the time appellee's husband died and cial issue found that plaintiff did not exercise was by the appellant transferred to her ac- due care, and in answer to another special issue count seems to be a mere matter of supposition found that plaintiff did exercise due care; the

two answers being utterly inconsistent. on her part. Her testimony fails to disclose any personal knowledge of the transaction by her, and no officer or employé of the bank

Appeal from District Court, Harris Countestified in regard to the matter. Looking ty; Norman G. Kittrell, Sr., Special Judge. to the bank book alone, the presumption

Suit by the Houston Undertaking Company would obtain that the deposit was made by against the Texas & New Orleans Railroad appellee; but whether the amount constitut Company, in which the Georgią Casualty ed community funds of herself and husband, Company intervened. From a judgment in or was her separate property, nowhere ap- favor of plaintiff and the intervener, the depears. But however this may be, we think fendant appeals. Reversed and remanded. the testimony very conclusively shows that Baker, Botts, Parker & Garwood and Me appellee drew out of appellant bank on Sep- Means, Garrison & Pollard, all of Houston, tember 15, 1917, all the money she then had for appellant. on deposit, and that no part of the $60.97 Cole & Cole, of Houston, for appellees. was applied to the payment of the notes appellant held against appellee's husband, but that the entire sum appropriated for that set out à fair and comprehensive statement

LANE, J. As appellant has in its brief purpose arose from the sale of the cotton of the nature and result of this suit, which crop she raised during the year 1917.

has the approval of appellee, we adopt the We conclude the judgment should be af

same as our own: firmed, and it is so ordered. Affirmed.

"Leo. H. Weadock and J. E. Price, doing business under the firm name of Houston Undertaking Company, were conducting in the city of Houston an undertaking business, and, as a

part of said business, directing funerals, and TEXAS & N, 0. R. CO. v. HOUSTON UN- also operated an ambulance for the purpose of DERTAKING CO. et al. (No. 7777.) conveying sick people to the hospitals, and

similar work, (Court of Civil Appeals of Texas. Galveston.

“On September 16, 1916, Leo. H. Weadock, Nov. 15, 1919. Rehearing Denied

one of the members of the firm, was driving the Dec. 18, 1919.)

ambulance on Gregg street in the city of Hous1. RAILROADS 348(6) FINDING OF CON

tou, and, while crossing the defendant's rail

road, the ambulance was struck with great TRIBUTORY NEGLIGENCE

AMBULANCE

force by an engine attached to a passenger EVI

train being operated upon the track, and prac

tically destroyed. In an action for damages to an ambulance

"Plaintiffs brought this suit to recover the in 'collision with a train at a crossing, evi- value of the ambulance, alleging that the strikdence held sufficient to support a finding that ing of it was due to the negligence of the deplaintiff's driver was guilty of contributory fendant in the following particulars: negligence.

“(1) In failing to keep a watchman at the 2. RAILROADS 327(1)-DRIVER OF AMBU- crossing to give notice or warning to persons CONTRIBUTORY NEGLI

upon, or about to enter upon, the crossing of GENCE AT CROSSING.

the approach of engines and trains. A driver of an ambulance, who failed to

“(2) In operating the train at an excessive use ordinary care to discover the approach of speed, and in violation of the ordinances of the a train before he drove his ambulance so near city of Houston limiting the speed to six miles the railroad track as to render it impossible to

an hour. stop and prevent the collision, was guilty of

“The petition alleged other grounds of neglicontributory negligence.

gence of the defendant, but as the court did not

submit them to the jury, of which no complaint 3. APPEAL AND ERROR Cw1177(8)—JUDGMENT is made by the plaintiffs and intervener, they

NOT REVERSED AND RENDERED WHERE AN are immaterial so far as this appeal is conSWERS OF JURY ARE INCONSISTENT.

cerned, and are therefore omitted. In a negligence case, where the answer of "Defendant answered by general denial and the jury to one special issue was to the effect general plea of contributory negligence, and that plaintiff had not exercised due care, and specially pleaded contributory negligence upon the answer to another special issue was that the part of the plaintiff in driving the ambu

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

OF
SUSTAINED

AT

CROSSING

BY

DRIVER
DENCE.

LANCE

GUILTY

OF

(218 S.W.) lance upon the track without taking any pre "Upon return of the verdict the plaintiffs and caution by looking or listening to ascertain intervener filed a motion for a judgment upon whether a train was approaching, and by heed the verdict in their favor, and the defendant lessly running upon the track at such a dis- filed a motion for judgment upon the verdict tance from the approaching train as to render in its favor. The court overruled defendant's it impossible for those operating it to stop it motion, and granted the plaintiffs' and interafter they discovered the approaching ambu- vener's, and thereupon accordingly entered judg. lance and the imminent danger of a collision ment in favor of plaintiffs for $3,000, and $340 therewith.

interest, and in favor of the intervener for $150, “Defendant pleaded in bar that plaintiffs had and $17.02 interest, with interest on said sums transferred their cause of action to the Georgia at the legal rate, and for costs. From this judg. Casualty Company, which now owned the same, ment the defendant has appealed.” and that it, only, had the right to sue therein.

"The Georgia Casualty Company intervened, It is in effect insisted by assignments 1 setting up in substance that it had issued to and 2 that the court erred in not rendering plaintiffs a policy of insurance upon the am

judgment for appellants upon the answers of bulance; that the policy contained a clause subrogating it to any right of action that might the jury to the special issues submitted, inaccrue to the plaintiffs against any person caus- stead of for the appellees, and in not seting the damage or destruction of the ambulance | ting the judgment so rendered aside upon to the extent of the sum that it might pay to the motion of appellant, for the reason that, plaintiffs on account thereof; that it had paid in answer to special issue No. 3, the jury to plaintiffs $3,000 upon the policy, and had found that, as the driver of plaintiffs' amtaken an assignment of the cause of action equal bulance approached the railroad crossing to said sum; and, after adopting the allega- where the alleged accident and injury Octions of plaintiffs' petition as alleging its cause curred, he could by the exercise of ordinary of action against defendant, prayed for judgment against said defendant for said sum.

care have discovered or seen the approach"Plaintiffs, by supplemental petition, admit- ing train, causing the injury, before it reachted having assigned to the Georgia Casualty ed the crossing and in time for him to have Company an interest in their cause of action stopped his automobile so as to have preequal to $3,000, reserving to themselves their vented the collision which resulted in the cause of action for any excess over that sum injury complained of; and because such which might be recovered, and prayed judgment finding is in effect a finding that such failfor such excess.

ure to exercise ordinary care to discover “The case was tried before a jury, to whom it was submitted on special issues, and in an

said train was negligence which contributed swer to which issues they, by their verdict, to bring about the collision and consequent found :

damage to plaintiffs' automobile, thus con“(1) That the negligence of the defendant in stituting contributory negligence on the part running its train over six miles an hour was of the driver, barring the right of plaintiffs the proximate cause of the accident.

to recover. “(2) That the plaintiff was not propelling its

Question No. 3 was as follows: ambulance at a rate of speed greater than 18 miles an hour.

"Could the plaintiff, or could he not, as he "(3) That the plaintiff, on approaching the approached the railroad crossing, by the exerrailroad crossing, could have discovered cise of ordinary care, have discovered or seen seen, by the exercise of ordinary care, the ap- the approach of the train before it reached the proach of the train before it reached the cross-crossing, in time for him to have stopped his ing, in time for him to have stopped his auto automobile so as to have prevented the accimobiłe so as to have prevented the accident.

dent? “(4) That the ambulance driven by the plain

“Answer 'He could,' or 'He could not,' actiff at and just before the collision was oper-cording as you find the fact to be.” ated at a speed in consideration of safety first, and at a speed no greater than was reasonable

To this question the jury answered, “He and proper, having regard to the traffic and could.” use of the public streets and ways by others, so [1] There was ample evidence to support as not to endanger life, limb, or property of the answer of the jury, and, if such answer any persons using or attempting to cross said

was the only finding of the jury relative to streets. “(5) That the plaintiff exercised that measure driver of plaintiffs' ambulance, we would

contributory negligence on the part of the of care that an ordinarily prudent person would have exercised under the same or similar circum- feel constrained to sustain the assignment stances in the matter of approaching the track and reverse the judgment of the trial court and going upon the same.

and render judgment for appellant. *(6) That the failure of the defendant to That the court erred in rendering judghave a flagman at said crossing was 'negligence' ment for appellees, in the face of the answer as that term was defined.

of the jury to issue No. 3, we have no doubt. (7) That such negligence was the proximate The evidence shows that the train which colcause of the injury to said ambulance.

"(8) That the reasonable value of the ambu- lided with the ambulance approached from lance at the time of the accident was $3,350.

the east, to the right of the driver of the "(9) That the plaintiff and the Georgia Cas- ambulance; that at a distance of 75 feet ualty Company suffered damages in that amount. from the railway track, on the side from

or

which the ambulance approached the cross-, railroad crossing to stop, look, and listen, or ing, a train approaching from the east could to do either; and we also understand that the be seen at a distance of 750 feet; and that appellate courts of this state have never held one at a distance of 30 or 40 feet of such that a failure on the part of one approaching train could see the train at a much further a railroad crossing to stop, look, and listen, or distance. Weadock, the driver of the ambu- not a train might be approaching, would, as a

to do either, in order to ascertain whether or lance, testified that he did not see the ap- matter of law, constitute contributory negliproaching train until he was within 10 or gence. But such is not the point here raised, 15 feet of the crossing, and that at that time and which we are discussing. the train was 50 to 75 feet from him; that "We understand it to be the rule in this at that time he was approaching the cross state that all adult persons, at all times and ing at a speed of about 10 to 12 miles an places, are required to use at least ordinary hour and could have brought his ambulance care for their own protection and safety, and if to a stop within 15 to 20 feet; that when the Supreme Court of this state in many cases,

we correctly interpret the rule, as laid down by he first saw the approaching train he said a person approaching a railroad crossing is reto Owen M. Peterson, who was with him in quired to use ordinary care to ascertain, by the ambulance, “We are gone.” He testified some means, whether a train might be apthat he drove right on the railway track be- proaching such crossing, with a view to avoid fore he discovered the approaching train, contact with such train, and if such person and that the reason he did not stop the am- about to make such a crossing, by the use of bulance before he attempted to cross the train to such crossing, can discover the ap

ordinary care in looking for the approach of a railway track was because he knew the proach of the train to the crossing in time to trainmen had to ring the bell and blow the avoid contact and injury therewith, and fails whistle, and was relying on them to do so. to use such care, and the state of the evidence

Owen M. Peterson, who was riding with be such that it must follow that such failure the driver, Weadock, testified, among other must be held to have caused or contributed to things, that when he first saw the train it the injury sustained, then such person is barwas about 75 to 100 feet from the point of red from recovery on the ground of contributory the collision; that he could have seen the

negligence." train before they drove so near the railway In this cause the court defined “contributrack, and the reason he did not see it was tory negligence" and "proximate cause" as because he was looking to the left. In other follows: respects this witness testified substantially as did the witness Weadock.

* Contributory negligence is the want of or

dinary care on the part of the person injured, [2] To our minds the answer of the jury that is to say, the want of such care as an or. to issue No. 3 was amply supported by the dinarily prudent person would have exercised evidence, and the facts thus found, together under the same or similar circumstances, which, with the further fact that the driver of ap concurring with the negligence of the defendpellee's ambulance approached within 10 to , ant, if any, proximately caused the injury. 12 feet of the railway track before he dis

"By 'proximate cause' is meant a cause withcovered the approaching train, and that it out which the injury would not have happened, was then impossible for him to stop the am- might reasonably have been anticipated in the

and from which that injury or some like injury bulance from going upon the track in front light of attending circumstances, as a natural of the train which was then only 50 to 75 and probable consequence.” feet from the point of the collision, all of which was shown by the undisputed evidence,

[3] While we have reached the conclusion convict appellee's driver of negligence, in that the trial court committed reversible erthat he failed to use ordinary care to dis- ror in rendering judgment for appellees upcover the approach of the train to the point on the answers of the jury as a whole, and of collision before he drove his ambulance in not setting aside such judgment on apso near the railway track as to render it pellant's motion for a new trial, still we impossible to stop said ambulance and pre- overrule the contention of appellant that vent the collision which resulted in the dam- judgment should have been rendered in its age complained of. St. Louis S. W. Ry. Co. favor upon the answers of the jury to the v. Harrell, 194 S. W. 971; Ry. Co. v. Boyd, special issues, because of answer to special 101 Tex. 411, at page 415, 108 S. W. 813; issue No. 4, reading as follows: Ry. Co. v. Dean, 76 Tex. 73, at page 76, 13 "Did or did not the plaintiff exercise that S. W. 45.

measure of care that an ordinarily prudent perThere are expressions in the opinion of the son would have exercised under the same or simcase of Railway Co. v. Harrell, supra, which ilar circumstances in the matter of approachare so applicable to the facts and law of ing the track and going upon the same?

"Answer 'He did,' or 'He did not,' according this case that we shall quote therefrom at

as you find the fact to be.” some length, as follows: "We agree with the contention of appellees'

To which the jury answered, “He did," counsel, to the effect that there is no statute in thus creating a conflict in their answers to this state which requires one approaching a issues No. 3 and No. 4 upon a vital point in

4

Tex.)
EDWARDS V. COMMERCIAL UNION ASSUR. CO.

87 (218 S.W.) the case. Both answers cannot be true, for, his share the two partners divided the remainder in our opinion, the answer to one destroys of the crop, each share became the individual the answer to the other.

property of the partner taking it, and one could We now come to the consideration of the mortgage his share as security for a loan, and contention made by appellant in its third which could transfer its interest to a third per

insure it for the benefit of the mortgagee bank, and fourth assignments, which in effect is

son who pai the partner's debt to this de that the judgment in favor of appellees spite any secret agreement between the partners should be reversed and the cause remanded that the mortgaging partner's share should be

for the reason that the answers of the jury subject to a charge for sums due in favor of the · to special issues Nos. 3 and 4 are in direct other partner, so that the insurance money on

conflict and inconsistent with each other, i loss was properly payable to the third person on the question of contributory negligence. who discharged the debt.

[4] We think this contention should be sustained. We think that the answer of the

Appeal from District Court, Bee County; jury to special issues Nos. 3 and 4, as here- M. A. Childers, Judge. inbefore shown, are utterly inconsistent with Application by Enoch Edwards for writ of each other, and that, under the rule estab-garnishment directed to the Commercial Unlished by many decisions of this state in ion Assurance Company, as debtor of H. S. such cases, no judgment should have been Cheney, wherein R. B. Jones and E. B. Hall rendered upon the verdict. Waller v. Liles, intervened. From judgment for the inter96 Tex. 21, 70 S. W. 17; Trice & Ludolph v. vener Jones, plaintiff or applicant appeals. Cone, 163 S. W. 587; Ry. Co. v. Denahy, Affirmed. 165 S. W. 529; Ry. Co. v. Milam, 191 S. W.

H. Snodgrass, of Beeville, for appellant. 571; Ry. Co. v. Walsh, 183 S. W. 19; St. L. S. W. Ry. Co. v. Harrell, 194 S. W. 971. ham, all of Beeville, for appellees.

Dougherty & Dougherty and H. S. BonIn the case last cited, from which we have hereinbefore quoted, the Supreme Court has

FLY, O. J. Appellant filed an application granted a writ of error. Counsel for both

for a writ of garnishment directed against appellees and appellant in their briefs call our attention to the fact that in granting the alleging that a suit instituted by him against

the Commercial Union Assurance Company, writ the court made upon the application a

H. S. Cheney for $1,012.35 was pending in note as follows:

the district court of Bee county, that the "Application granted. We are inclined to debt was just, due, and unpaid, and that think that, in view of the record, the Court of Cheney had not property in his possession Civil Appeals was in error in rendering judg- sufficient to satisfy the debt, and that appel. ment rather than remanding the case."

lant had reason to believe that the corporaFor the error pointed out, the judgment is tion was indebted to Cheney. It was agreed reversed, and the cause remanded.

by the parties that the assurance company Reversed and remanded.

was indebted to Cheney in the sum of $500, which was paid into the registry of the court. R. B. Jones and E. B. Hall inter

vened in the suit, claiming the entire $500. EDWARDS v. COMMERCIAL UNION AS- The court heard the case and adjudged that SUR. CO. et al. (No. 6322.)

Hall recover nothing, that Jones recover (Court of Civil Appeals of Texas. San Antonio. $407.72 of the $500, and that the remainder, Jan. 14, 1920.)

$92.28, be adjudged to appellant.

There is no statement of facts in the rec1. PARTNERSHIP 69—ON DIVISION OF CROP ord, and the court adopts the following facts RAISED BY FIRM, SUBSEQUENT MORTGAGE OF found by the trial judge: SHARE BY PARTNER TO SECURE INDIVIDUAL

“Enoch Edwards was in partnership with H. Where partners in raising a crop of broom

S. Cheney in the broom corn business during the corn, after giving the landlord his share, divided broom corn season of 1918. such crop, one of them selling his own share,

“Said Edwards furnished money for the emthe other partner, despite a secret agreement ployment of labor in addition to Cheney's labor that there was a charge on his share in favor and furnished a portion of the supplies for such of his former partner until certain debts were laborers for the raising of the broom corn in paid, could mortgage his share of the corn to question and that Cheney had general oversight a bank as security for his personal debt; the and management of such laborers and of the

Edcrop being no longer partnership property.

work of raising said crop of broom corn.

wards was to have a one-half interest in said 2. PARTNERSHIP Ow183(2)—MORTGAGE OF AND crop, and to be repaid by Cheney one-half of

OF | the money he had advanced for raising the crop. PARTNER FORMERLY BELONGING TO FIRM BUT "After the crop of broom corn had been gathSET OFF TO HIM VALID.

ered, threshed, and baled, a certain number of Where a crop of broom corn was raised by bales were turned over to the landlord for rent, a partnership, and after the landlord was paid , and that thereafter Cheney and Edwards divid

DEBT VALID,

INSURANCE

ON

INDIVIDUAL

PROPERTY

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

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