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(218 S.W.) in failing to get the automobile out of water | used in the policy, meant “to become wholly

submerged, to retire entirely beneath or be

low the surface of the water," the jury found Appeal from District Court, Harris Coun- that the ferry did sink while the automobile ty; Chas. E. Asbe, Judge.

was on it, and that its sinking caused the Action by E. L. Fox against the American car to be precipitated into the creek. Since Automobile Insurance Company. From judg- we think this finding has sufficient support ment for plaintiff, defendant appeals. Af- in the testimony, consideration of it upon firmed.

appeal is of no further concern, unless there Andrews, Streetman, Burns & Logue (later was some prejudicial error of omission or Andrews, Streetman, Logue & Mobley) and commission in its being submitted at all,

which appellant urges was the case. W. L. Cook, all of Houston, for appellant.

[1] Through objections to the charge as E. T. Chew, of Houston, for appellee.

given, and by a number of requested special GRAVES, J. Alleging that his automobile charges, it insisted that there could be no had been damaged from being submerged in sinking within the meaning of the policy and

of the averments of plaintiff's petition, unless salt water as the result of the sinking of a

the ferry went underneath the water and ferty upon which he had driven it for trans-remained there, and that the jury should have portation across Goose Creek, in Harris coun

been so told. This contention rests upon the ty, Tex., Dr. Fox sued the insurance com- further claim that the plaintiff had alleged pany to recover the loss, under the terms of the particular manner of the sinking; that a policy it had issued him on the car. He was therein insured "from the 3d day of under the water-held there by the weight

is, that the ferry went down and remained August, 1916, at noon, to the 3d day of Au- of the automobile and was bound thereby gust, 1917, at noon, standard time at the to the extent that the jury should not have place where this policy is countersigned, been permitted to find a sinking not so exagainst actual loss or damage to the body,

pressly limited and defined. machinery, equipment and extra parts of each automobile described in statement IV of out separate discussion overrule all assign

We think the position untenable, and withthe schedule of statements to an amount not ments presenting the different phases of it. exceeding the amount therein specified on

The material and important issue was, each automobile, if caused, while this policy Did the ferry sink while the automobile was is in force, by fire arising from any cause

on it? This essential fact was directly alwhatsoever, including explosion, self-ignition leged and fully proven; it is a matter of no and lightning; and also against such loss or damage, if caused by the burning, derailment, petition then went further, and charged that

consequence that, by way of amplification, the collision, stranding or sinking of any convey the ferry was held down at the bottom of ance, by land or water, in or upon which such the stream by the car, because proof of the automobile is being transported."

first averment would fasten liability upon the There is also the further provision:

insurer, and this notwithstanding the de“The company shall not be liable hereunder veloped fact that after first sinking with the for any loss or damage to any automobile used

car upon it, the ferry, being relieved of the (c) beyond the limits of the United weight by the car's having slid off into the States, Canada and Mexico, or between ports water, rose again to the surface. within said limits."

[2] Recurring now to the defense of unseaPursuant to a jury's verdict fixing the worthiness of the ferry, so primarily presentamount of the damage, a judgment against ed in this court: We conclude that it is the company was entered below, from which not available, because not applicable to the it has appealed.

kind of insurance contract here involved. The chief defense in the trial court was In doing so, it is deemed unnecessary to that there was in fact no sinking of the determine whether or not an implied warferry within the terms of the policy and as ranty of seaworthiness of the vessel inheres pleaded by the plaintiff, while in this court, in time policies of strictly marine insurance, for the first time and as the leading con- since we do not think the ordinary policy of tention—it is urged that the appellee was automobile accident insurance, 'like the one not entitled to recover, because, it is said, the here sued upon, is of that character. The policy sued on carried an implied warranty nature of the risk is essentially different upon his part of the seaworthiness of the from that applying to hazards of the sea, if ferry for the use he attempted to make of it, for no other reason, in that the subject of it, which obligation had been breached, in that the automobile, was.itself contemplated to be the ferry was conclusively shown by his own used as a means of conveyance, in reference pleadings and by all the proof not to be so. to which no such condition as seaworthiness,

In responding on trial of the cause to spe- or the lack of it, could have been thought of. cial issues submitted to them, and after being Consequently the incidents of an undertaktold by the court that the word “sink,” as ing to provide against “the perils of the sea,”

or other hazards to which a seagoing vessel, , Fed. 821–825; Batchelder v. Ins. Co. (D. C.) or a cargo carried in one, may become sub- 30 Fed. 459. ject, do not attach. The parties here by Some of the additional assignments assail plain stipulations made another kind of con- the court's action in asking the jury whether tract. Without the mention of seaworthiness the automobile came in contact with the salt in any connection, they simply agreed that, if water before it left the ferry, and, if so, the appellee should suffer loss or damage what part of the total damage done did that during the fixed period of one year as a result contact alone cause, as well as the sufficiency of the “stranding or sinking of any convey of the evidence to sustain the findings made ance, by land or water, in or upon which on both issues? Others challenge the correctsuch automobile is being transported," pro- ness of the measure of damages submitted, vided the car was not used “beyond the limits and complain of the actual damage found as of the United States, Canada and Mexico, or being excessive. between ports within said limits," the appel After careful consideration of them all, in lant would pay it. This proviso itself not the light of the entire record, it is thought no only contains the sole limitation of liability prejudicial error is shown in any of these found in the instrument, but also strongly respects. The court first inquired generally tends to distinguish the undertaking from one as to how much the automobile had been daving to do with marine risks.

damaged by coming in contact with salt This implication of responsibility of the water, without reference to whether that ocowner or charterer for the condition of his curred before or after it left the ferry. The ship as a condition precedent to his recover- question was then particularized by further ing for the insurance thereon was one of the asking whether the car had come in contact peculiar and rigid rules of the common law, with the water before it left the ferry, and in applicable more especially, if not exclusively, the event of an affirmative finding on both to policies of marine insurance covering a these issues, designation of the amount attribparticular voyage, rather than to those mere- utable to the car's contact with the water ly running generally for a fixed period of before it left the ferry was requested. time. In England the implied warranty [4] In this connection, and upon the measseems to have been confined to single trip | ure of damages, this was the charge: or voyage policies (Gibson v. Small, 4 H, L.

"In arriving at the damages inquired about Cas. 353; 1 C. L. R. 363; 17 Jur. 1131, 14 in this issue you will take into consideration Eng. Rul. Cas. 86, and note; Dudgeon v. the reasonable, fair, market value of car just Pembake, 2 App. Cas. 284, 46 L. J. Exch. 409, prior to the accident on the ferry, and its rea36 L. T. N. S. 382, 25 W. R. 499, 14 Eng. sonable, fair, market value just after it had Rul. Cas. 105; Jones v. Ins. Co., Fed. Cas. suffered the damage from salt water as shown No. 7470), while in America, under certain by the evidence, limiting the amount of damages limitations, it appears to arise upon time repair the parts that could be properly repair

which you may allow to what it would take to policies as well (26 Cyc. p. 645; Ins. Co. v. ed, and to replace the parts that were necesBurnett, 29 Tex. 442; M. Ins. Co. v. Morri- sary to be replaced in the car to put the same son, 62 Ill. 242, 14 Am. Rep. 93).

in substantially as good a condition as it was But to read these arbitrary doctrines of just prior to the accident. And should you furthe ancient law merchant and of the common ther believe from the evidence that plaintiff, law covering strictly marine risks only into or those whom he selected for the purpose, did a plain policy insuring a modern automobile not exercise ordinary care in the matter of for an extended period against damage or giving it further attention after it had been

removing said automobile from the water and loss from any sort of accident, while being submerged in the water, and that failure in this used by land or water anywhere within the regard caused additional damage over and limits of the United States, Canada, or Mexi- above what the car would have sustained had co, save alone between ports within such he, or those whom he selected, used such care limits, would not, in our opinion, be the mere in the respect just mentioned, you will not inrecognition of a condition with respect to clude such amount in your answer to this ques

tion. which the contract was silent, but would

"By the term 'ordinary care' is meant such vary its terms and legal effect-something a

care as a person of reasonable prudence would court may not undertake.

have used in the same or similar circumstanc[3] Furthermore, as already indicated, no es." breach of any implied warranty of seaworthiness of the ferry was pleaded by the appel The jury answered that the car had come lant, nor was the point otherwise raised be in contact with the water before leaving the low, and we are inclined to agree with the ferry, and fixed both amounts so inquired appellee that it was such defensive matter about at $1,300. as was waived by the failure to set it up. We find no fault with the charge, indeed Guy et al. v. Citizens' Mut. Ins. Co. (D. C.) 30 considering it somewhat more favorable to Fed. 695; Fireman's Fund Ins. Co. v. Globe appellant on the measure of damages than it Nav. Co., 236 Fed. 623; Nome Beach Lighter- was entitled to under the contract it had age & Tr. Co. v. Munich Assur. Co. (C. C.) 123 | made. The policy expressly provided that a



(218 8.W.) recovery could be had for "what it would then cost the assured to repair or replace the RICHARDS et al. v. HOWARD. (No. 6318.) same (meaning the damaged parts) with material of like kind and quality.” In the (Court of Civil Appeals of Texas. San Antonio.

Jan. 14, 1920.) quoted charge the trial court enlarged to some extent upon this by limiting the amount 1. MORTGAGES Ono 458EVIDENCE OF NEGLIof recoverable damages to "what it would GENCE JUSTIFYING REFUSAL OF PERMISSION take to repair the parts that could be prop

TO AMEND ANSWER IN FORECLOSURE AND INerly repaired, and to replace the parts that were necessary to be replaced, so as to put two defendants in suit on a note and to fore

Record evidence held to warrant finding that same in substantially as good condition as close deed of trust, such defendants being atit was prior to its going into the water," torneys at law, were negligent, not only in thus slightly liberalizing the policy in appel- delaying presentation of their case until the lant's favor,

trial term convened, and in relying on securing [5, 6] Neither do we think the jury's find a setting to enable them to prepare it after ings upon these questions unsupported by the court convened, but also in failing to attend testimony. It was shown that the machinery court on notice the case would be tried, and in and appliances of the car were hot when it not seeking to amend their pleadings and inwent into the water, that under such circum- court, so that it was no abuse of discretion in

troduce their evidence until the last day of stances, it being suddenly brought into con declining to permit them to amend and intro.tact with salt water and then exposed for duce evidence. any considerable length of time to the open

2. JUDGMENT 210RENDITION LAST air, whether allowed to remain long in the

DAY OF TERM NOT FORBIDDEN BY RULE. water or not, would greatly damage it, and

Where the trial was not concluded, and the that it was thus submerged in salt water

case submitted to the court until the last day prior to sliding or slipping off of the ferry, of the term, rule 66 for the district courts (142 Consequently a finding that, even if the car s. W. xxii) did not apply, and judgment was had been taken out of the salt water at once properly rendered on the last day of the term. on parting from the ferry, and then allowed to remain on the bank in the open air from Sun Appeal from District Court, Guadalupe day afternoon until Tuesday following, as was County; M. Kennon, Judge. done, it would have been damaged to the

Suit by Mrs. J. D. Howard, executrix, extent of $1,300, could not be said to be un- against C. F. Richards, T. B. Monroe, and supported; nor are the two unconnected fix

others. From a judgment for plaintiff, the ings of the same amount as the total damage named defendants appeal. Affirmed. and also as the amount of damage done before the separation of the automobile and 0. F. Richards, of Lockhart, and T. B. the ferry necessarily in conflict or inconsist Monroe, of Austin, for appellants. ent with each other, because, in first answer Wurzbach & Wirtz, of Seguin, for appellee. ing as to the damage in general terms, the jury were permitted by the terms of this MOURSUND, J. This is a suit by appellee charge, given in connection with that issue, upon promissory notes executed by Victor to deduct any sum from the total damage Hartenstein to J. D. Howard and to forethat they might find arose out of or was close lien evidenced by a deed of trust executdue to any negligence on the part of the ed by said Victor Hartenstein to secure the appellee or his agents in failing to get the payment of such note; foreclosure being also automobile out of the water and to town sought as against Kate Hartenstein, O. F. sooner than he did.

Richards, and T. B. Monroe. This appeal So that, under all the evidence, the jury was taken by Richards and Monroe from a could have found the da to have been judgment in favor of plaintiff. practically the same without reference to It appears from the record that an answer when the car parted from the ferry, or, in re was filed in behalf of appellants on Novemsponding to this issue as first submitted, ber 16, 1918, consisting of a general denial, could and may have primarily determined, and a plea that they are the owners of the (not to say probably did determine) that the property against which plaintiff seeks to total damage to the car had been in excess recover a judgment foreclosing a lien. The of $1,300 which they had then reduced down cause was continued for the term. The next to that sum by deducting whatever amount term began on April 21, 1919, and the case they had also determined to be the result of was set for trial for the afternoon of April the appellee's negligence in not sooner getting 22d, of which fact appellant Richards was the car in out of the open air.

notified by the clerk by telegram received Under these conclusions the judgment by him at Lockhart on the morning of April should be affirmed, and that order will be 22d. Appellants did not go to Seguin, and entered.

the trial proceeded without them. Both of Affirmed.

them are lawyers, but they contended that

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


they had made an arrangement with an case would be tried, and especially in not attorney at Seguin to file the formal answer seeking to amend their pleadings and introfor them, and to notify them of the setting | dúce their evidence until the last day of of the case at the next term in sufficient time court. The record wholly fails to disclose to enable them to prepare, in conjunction any abuse of discretion on the part of the with said attorney, their answer to the trial court in declining to permit the appelmerits and make preparations for the trial. lants to amend and introduce their evidence. The attorney referred to by affidavit in the [2] There is no merit in the contention record denies that he was employed, and that error was committed in rendering judg. states that his acts in the premises were no ment on the last day of the term for the more than acts of courtesy to brother law- record discloses that the trial was not conyers. It appears that about May 1, 1919, ap- cluded, and the case submitted to the court pellants learned that the case had not been until on said last day, and therefore rule 66 disposed of and that the trial had not been does not apply. concluded. On May 16, 1919, they filed a The judgment is affirmed. lengthy motion, requesting permission to file an amended answer and introduce évidence thereon. This motion, however, was not presented to the court by them until May 24th, the last day of the term, and was then WILLIS V. PEGUES. (No. 523.) overruled. Appellants then objected to ren

Beaumont. dition of judgment on the last day of the Court of Civil Appeals of Texas. term, relying upon rule 66 for the district

Jan. 17, 1920.) courts (142 S. W. xxii).

1. JUDGMENT 916—PETITION IN ACTION ON The bill of exceptions relating to such ob JUDGMENT SUFFICIENT TO PERMIT ADMISSION jection, as qualified by the court, discloses that the argument was not finally concluded In an action on a judgment rendered in until on said May 24th, and that therefore another county, the judgment was properly adthe case was not submitted to the court until mitted in evidence, although the petition did the last day of the term. It further shows not state that an attachment had been issued that neither of the appellants was present ing a misdescription of the judgment, por con

in the case; failure to so allege not constitutor participated in the proceedings. The bill stituting any surprise, no benefit having ever of exceptions shows that the objections were accrued to the plaintiff in consequence of the urged after the court had announced his in- attachment. tention of rendering judgment in the cause. 2. JUDGMENT C768(1)—ABSTRACT NEED NOT The order overruling the motion for premis

AFFIRMATIVELY SHOW LACK OF CREDITS TO sion to file an amended answer and introduce evidence does not show at what stage of the

Vernon's Sayles' Ann. Civ. St. 1914, art. proceedings such motion was presented, nor 5612, does not require an abstract of judgment is there any bill of exceptions which makes to affirmatively show, or to state in so many such showing. So far as the record discloses, words, that there were no credits to which the motion may not have been presented until the judgment was entitled, in order to give a after the trial of the case had been con- lien on land when filed with the county clerk cluded, and the court had announced his in- of another county; it being sufficient that the tention of rendering judgment. It does not abstract shows correctly the names of the par. appear that the court was informed what court in which the judgment was rendered, the

ties to the suit, the number of the suit, the evidence was sought to be introduced, or date of the judgment, the amount thereof, the that it could be introduced in time to finish rate of interest it bore, the costs of suit, and the trial during the term. It appears from the total amount due. the motion that prior to May 15th appellants were informed that it was necessary for them

Appeal from District Court, Shelby Counto represent themselves, and that they there ty; Chas. L. Brachfield, Judge. upon went to Seguin and prepared the mo tion filed May 16th, in which they fully rec

Suit by O. H. Pegues against James F. Wilognized the fact that the trial had not been lis, administrator of the estate of Willis concluded. The record is silent concerning Rather, deceased. Judgment for plaintiff, the reason for delaying the presenting of such and defendant appeals. Affirmed. motion until the last day of the term.

D. M. Short & Sons, of Center, for appel[1] The court was warranted in finding lant. that appellants were negligent, not only in Sanders & Sanders, of Center, for appellee. delaying the preparation of their case until the term convened, and relying upon securing HIGHTOWER, C. J. The appellee in this a setting such as would enable them to pre- case, O. H. Pegues, filed this suit in the dispare after court convened, but also in failing trict court of Shelby county against James to attend court upon being notified that the F. Willis, as administrator of the estate of


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

(218 S.W.) Willis Rather, deceased, and for cause of Rather during his lifetime to said F. C. Powaction against said administrator alleged ell as trustee, to secure a loan made to substantially as follows: That on the 18th Rather by Ellington for the sum of $600, day of October, 1909, in the county court of but alleged that such claimed lien by EllingGregg county, Tex., plaintiff recovered a ton was subordinate and inferior to appeljudgment against Willis Rather, now de- lee's judgment lien, and prayed for judgment ceased, for the principal sum of $947, and as against said defendants to that effect. that such judgment bore interest from its Ellington filed an answer, in which he addate at the rate of 6 per cent. per annum, mitted that appellee had acquired a judgand also that he recovered in that cause ment lien against said tract of land, which judgment for all costs of suit, which was was superior to his deed of trust lien, and $11.75. Appellee then alleged, substantially, made no further contest, and defendant that Willis Rather afterwards died, and that Powell, as trustee in the deed of trust, filed the appellant, James F. Willis, was duly and no answer. legally appointed admiņistrator of his es The appellant in this case, James F. Willis, tate, and that after such appointment, and as administrator of the estate of Willis within due and legal time, appellee present. Rather, deceased, filed his answer, consisted to said administrator his claim of indebt- ing of a general demurrer and a number of edness against Willis Rather, deceased, as special exceptions, and then a general denial, evidenced by said judgment, no part of which and then specially pleaded that appellee's had ever been paid by Willis Rather, and judgment was dormant, and also specially that appellant, in his capacity of adminis. alleged that appellee acquired no lien on the trator, had rejected said claim, and that ap- land in Rusk county, as claimed in his petipellee in due time thereafter filed suit there tion, for the reason that said land was on, etc.

the homestead of Willis Rather, deceased, at Appellee further alleged that execution on all times after he had acquired same. the judgment obtained in the county court of The general demurrer and all special exGregg county against Willis Rather was duly ceptions interposed by appellant seem to issued in December following the rendition have been overruled by the trial court, and of the judgment in October before, and fur- since no assignment is presented in the brief ther that on the 9th of December of the same of appellant challenging the correctness of year a duly certified abstract of such judg- such ruling, no further mention of those matment had been filed with the county clerk of ters will be made. Rusk county, Tex., and that such abstract of The trial of the case proceeded before the judgment, after being so filed with said clerk, court without a jury, and resulted in a judgwas duly indexed and recorded in the judg- ment in fayor of appellee against appellant ment records of Rusk county, as required by in his official capacity for the full amount law, and then alleged that at the time of claimed by appellee against the estate of such filing, indexing, and recording of such Willis Rather, and also declaring a lien in abstract of judgment, and at all times there favor of appellee against the land in Rusk after, the same became and constituted a county, as claimed by appellee, which judglien upon any land at that time owned or ment was ordered certified to the probate thereafter acquired by Willis Rather, de court of Shelby county for observance, etc. ceased, during his lifetime, and that in fact It was further adjudged that appellee's lien, such a lien had attached to a certain tract as claimed, was superior to the deed of trust of land acquired in Rusk county by Willis lien claimed by Ellington, to which action of Rather before his death, describing the same the court no complaint was made by Ellingin his petition, and his prayer was, as against ton, and Willis, administrator, is the only appellant in his capacity as administrator, party appealing. that appellee have judgment against him es By his first ass nment of error, appellant tablishing a claim of indebtedness evidenced complains of the action of the trial court in by the judgment against Willis Rather, and admitting in evidence, over his objection, a further that it be adjudged and decreed by certified copy of the judgment obtained by the court that he have a lien upon said land appellee in the county court of Gregg county in Rusk county to secure the payment of said against Willis Rather, hereinbefore menclaim against appellant as administrator, and tioned. The only proposition under this asthat such judgment be certified to the pro- signment is, in substance, that appellee's pebate court of Shelby county, where the ad-tition did not sufficiently describe said judgministration was pending, for observance, ment to authorize its admission in evidence; etc.

that appellee's petition contained only a parAppellee also made R. J. D. Ellington and tial description of said judgment, when it F. C. Powell parties defendant in this cause, should have contained a full and complete alleging, substantially, as against them, that description of sa me. Ellington was claiming a lien on said tract [1] Upon inspection of the record in this of land in Rusk county by reason of a deed connection, we find that appellee's petition of trust that had been executed by Willis fully named the parties to this judgment, the

218 S.W.-7

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