(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 below the surface of the water," the jury found sooner. Appeal from District Court, Harris Coun- that the ferry did sink while the automobile ty; Chas. E. Ashe, Judge. Action by E. L. Fox against the American Automobile Insurance Company. From judgment for plaintiff, defendant appeals. Af firmed. Andrews, Streetman, Burns & Logue (later Andrews, Streetman, Logue & Mobley) and W. L. Cook, all of Houston, for appellant. E. T. Chew, of Houston, for appellee. GRAVES, J. Alleging that his automobile had been damaged from being submerged in salt water as the result of the sinking of a ferry upon which he had driven it for transportation across Goose Creek, in Harris county, Tex., Dr. Fox sued the insurance company to recover the loss, under the terms of a policy it had issued him on the car. He was therein insured "from the 3d day of August, 1916, at noon, to the 3d day of August, 1917, at noon, standard time at the place where this policy is countersigned, against actual loss or damage to the body, machinery, equipment and extra parts of each automobile described in statement IV of the schedule of statements to an amount not exceeding the amount therein specified on each automobile, if caused, while this policy is in force, by fire arising from any cause whatsoever, including explosion, self-ignition and lightning; and also against such loss or damage, if caused by the burning, derailment, collision, stranding or sinking of any conveyance, by land or water, in or upon which such automobile is being transported." There is also the further provision: "The company shall not be liable hereunder for any loss or damage to any automobile used (c) beyond the limits of the United States, Canada and Mexico, or between ports within said limits." Pursuant to a jury's verdict fixing the amount of the damage, a judgment against the company was entered below, from which it has appealed. The chief defense in the trial court was that there was in fact no sinking of the ferry within the terms of the policy and as pleaded by the plaintiff, while in this courtfor the first time and as the leading contention-it is urged that the appellee was not entitled to recover, because, it is said, the policy sued on carried an implied warranty upon his part of the seaworthiness of the ferry for the use he attempted to make of it, which obligation had been breached, in that the ferry was conclusively shown by his own pleadings and by all the proof not to be so. In responding on trial of the cause to special issues submitted to them, and after being told by the court that the word "sink," as was on it, and that its sinking caused the car to be precipitated into the creek. Since we think this finding has sufficient support in the testimony, consideration of it upon appeal is of no further concern, unless there was some prejudicial error of omission or commission in its being submitted at all, which appellant urges was the case. [1] Through objections to the charge as given, and by a number of requested special charges, it insisted that there could be no sinking within the meaning of the policy and of the averments of plaintiff's petition, unless the ferry went underneath the water and remained there, and that the jury should have been so told. This contention rests upon the further claim that the plaintiff had alleged the particular manner of the sinking; that under the water-held there by the weight is, that the ferry went down and remained of the automobile-and was bound thereby to the extent that the jury should not have been permitted to find a sinking not so expressly limited and defined. We think the position untenable, and without separate discussion overrule all assignments presenting the different phases of it. The material and important issue was, Did the ferry sink while the automobile was on it? This essential fact was directly al leged and fully proven; it is a matter of no petition then went further, and charged that consequence that, by way of amplification, the the ferry was held down at the bottom of the stream by the car, because proof of the first averment would fasten liability upon the insurer, and this notwithstanding the developed fact that after first sinking with the car upon it, the ferry, being relieved of the weight by the car's having slid off into the water, rose again to the surface. [2] Recurring now to the defense of unseaworthiness of the ferry, so primarily presented in this court: We conclude that it is not available, because not applicable to the kind of insurance contract here involved. In doing so, it is deemed unnecessary to determine whether or not an implied warranty of seaworthiness of the vessel inheres in time policies of strictly marine insurance, since we do not think the ordinary policy of automobile accident insurance, like the one here sued upon, is of that character. The nature of the risk is essentially different from that applying to hazards of the sea, if for no other reason, in that the subject of it, the automobile, was itself contemplated to be used as a means of conveyance, in reference to which no such condition as seaworthiness, or the lack of it, could have been thought of. Consequently the incidents of an undertaking to provide against "the perils of the sea," or other hazards to which a seagoing vessel, or a cargo carried in one, may become subject, do not attach. The parties here by plain stipulations made another kind of contract. Without the mention of seaworthiness in any connection, they simply agreed that, if the appellee should suffer loss or damage during the fixed period of one year as a result of the "stranding or sinking of any conveyance, by land or water, in or upon which such automobile is being transported," provided the car was not used "beyond the limits of the United States, Canada and Mexico, or between ports within said limits," the appellant would pay it. This proviso itself not only contains the sole limitation of liability found in the instrument, but also strongly tends to distinguish the undertaking from one having to do with marine risks. This implication of responsibility of the owner or charterer for the condition of his ship as a condition precedent to his recovering for the insurance thereon was one of the peculiar and rigid rules of the common law, applicable more especially, if not exclusively, to policies of marine insurance covering a particular voyage, rather than to those merely running generally for a fixed period of time. In England the implied warranty seems to have been confined to single trip or voyage policies (Gibson v. Small, 4 H. L. Cas. 353; 1 C. L. R. 363; 17 Jur. 1131, 14 Eng. Rul. Cas. 86, and note; Dudgeon v. Pembake, 2 App. Cas. 284, 46 L. J. Exch. 409, 36 L. T. N. S. 382, 25 W. R. 499, 14 Eng. Rul. Cas. 105; Jones v. Ins. Co., Fed. Cas. No. 7470), while in America, under certain limitations, it appears to arise upon time policies as well (26 Cyc. p. 645; Ins. Co. v. Burnett, 29 Tex. 442; M. Ins. Co. v. Morrison, 62 Ill. 242, 14 Am. Rep. 93). But to read these arbitrary doctrines of the ancient law merchant and of the common law covering strictly marine risks only into a plain policy insuring a modern automobile for an extended period against damage or loss from any sort of accident, while being used by land or water anywhere within the limits of the United States, Canada, or Mexico, save alone between ports within such limits, would not, in our opinion, be the mere recognition of a condition with respect to which the contract was silent, but would vary its terms and legal effect-something a court may not undertake. [3] Furthermore, as already indicated, no breach of any implied warranty of seaworthiness of the ferry was pleaded by the appellant, nor was the point otherwise raised below, and we are inclined to agree with the appellee that it was such defensive matter as was waived by the failure to set it up. Guy et al. v. Citizens' Mut. Ins. Co. (D. C.) 30 Fed. 695; Fireman's Fund Ins. Co. v. Globe Nav. Co., 236 Fed. 623; Nome Beach Lighterage & Tr. Co. v. Munich Assur. Co. (C. C.) 123 Fed. 821-825; Batchelder v. Ins. Co. (D. C.) 30 Fed. 459. Some of the additional assignments assail the court's action in asking the jury whether the automobile came in contact with the salt water before it left the ferry, and, if so, what part of the total damage done did that contact alone cause, as well as the sufficiency of the evidence to sustain the findings made on both issues? Others challenge the correctness of the measure of damages submitted, and complain of the actual damage found as being excessive. After careful consideration of them all, in the light of the entire record, it is thought no prejudicial error is shown in any of these respects. The court first inquired generally as to how much the automobile had been damaged by coming in contact with salt water, without reference to whether that occurred before or after it left the ferry. The question was then particularized by further asking whether the car had come in contact with the water before it left the ferry, and in the event of an affirmative finding on both these issues, designation of the amount attributable to the car's contact with the water before it left the ferry was requested. [4] In this connection, and upon the measure of damages, this was the charge: "In arriving at the damages inquired about in this issue you will take into consideration the reasonable, fair, market value of car just prior to the accident on the ferry, and its reasonable, fair, market value just after it had suffered the damage from salt water as shown by the evidence, limiting the amount of damages repair the parts that could be properly repairwhich you may allow to what it would take to ed, and to replace the parts that were necessary to be replaced in the car to put the same in substantially as good a condition as it was just prior to the accident. And should you further believe from the evidence that plaintiff, or those whom he selected for the purpose, did not exercise ordinary care in the matter of giving it further attention after it had been removing said automobile from the water and submerged in the water, and that failure in this regard caused additional damage over and above what the car would have sustained had he, or those whom he selected, used such care in the respect just mentioned, you will not include such amount in your answer to this ques tion. "By the term 'ordinary care' is meant such care as a person of reasonable prudence would have used in the same or similar circumstances." The jury answered that the car had come in contact with the water before leaving the ferry, and fixed both amounts so inquired about at $1,300. We find no fault with the charge, indeed considering it somewhat more favorable to appellant on the measure of damages than it was entitled to under the contract it had made. The policy expressly provided that a (218 S.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. quoted charge the trial court enlarged to some extent upon this by limiting the amount of recoverable damages to "what it would take to repair the parts that could be properly repaired, and to replace the parts that were necessary to be replaced, so as to put same in substantially as good condition as it was prior to its going into the water," thus slightly liberalizing the policy in appellant's favor. [5, 6] Neither do we think the jury's findings upon these questions unsupported by the testimony. It was shown that the machinery and appliances of the car were hot when it went into the water, that under such circumstances, it being suddenly brought into contact with salt water and then exposed for any considerable length of time to the open air, whether allowed to remain long in the water or not, would greatly damage it, and that it was thus submerged in salt water prior to sliding or slipping off of the ferry, Consequently a finding that, even if the car had been taken out of the salt water at once on parting from the ferry, and then allowed to remain on the bank in the open air from Sunday afternoon until Tuesday following, as was done, it would have been damaged to the extent of $1,300, could not be said to be unsupported; nor are the two unconnected fixings of the same amount as the total damage and also as the amount of damage done before the separation of the automobile and the ferry necessarily in conflict or inconsistent with each other, because, in first answering as to the damage in general terms, the jury were permitted by the terms of this charge, given in connection with that issue, to deduct any sum from the total damage that they might find arose out of or was due to any negligence on the part of the appellee or his agents in failing to get the automobile out of the water and to town sooner than he did. So that, under all the evidence, the jury could have found the damage to have been practically the same without reference to when the car parted from the ferry, or, in responding to this issue as first submitted, could and may have primarily determined (not to say probably did determine) that the total damage to the car had been in excess of $1,300 which they had then reduced down to that sum by deducting whatever amount they had also determined to be the result of the appellee's negligence in not sooner getting the car in out of the open air. Under these conclusions the judgment should be affirmed, and that order will be entered. Affirmed. Jan. 14, 1920.) 1. MORTGAGES 458 EVIDENCE OF NEGLI- two defendants in suit on a note and to fore- Record evidence held to warrant finding that MOURSUND, J. This is a suit by appellee upon promissory notes executed by Victor Hartenstein to J. D. Howard and to foreclose lien evidenced by a deed of trust executed by said Victor Hartenstein to secure the payment of such note; foreclosure being also sought as against Kate Hartenstein, C. F. Richards, and T. B. Monroe. This appeal was taken by Richards and Monroe from a judgment in favor of plaintiff. It appears from the record that an answer was filed in behalf of appellants on November 16, 1918, consisting of a general denial, and a plea that they are the owners of the property against which plaintiff seeks to recover a judgment foreclosing a lien. The cause was continued for the term. The next term began on April 21, 1919, and the case was set for trial for the afternoon of April 22d, of which fact appellant Richards was notified by the clerk by telegram received by him at Lockhart on the morning of April 22d. Appellants did not go to Seguin, and the trial proceeded without them. Both of them are lawyers, but they contended that For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes seeking to amend their pleadings and introduce their evidence until the last day of court. The record wholly fails to disclose any abuse of discretion on the part of the trial court in declining to permit the appellants to amend and introduce their evidence. [2] There is no merit in the contention that error was committed in rendering judgment on the last day of the term for the they had made an arrangement with an case would be tried, and especially in not attorney at Seguin to file the formal answer for them, and to notify them of the setting of the case at the next term in sufficient time to enable them to prepare, in conjunction with said attorney, their answer to the merits and make preparations for the trial. The attorney referred to by affidavit in the record denies that he was employed, and states that his acts in the premises were no more than acts of courtesy to brother law-record discloses that the trial was not conyers. It appears that about May 1, 1919, appellants learned that the case had not been disposed of and that the trial had not been concluded. On May 16, 1919, they filed a lengthy motion, requesting permission to file an amended answer and introduce evidence thereon. This motion, however, was not presented to the court by them until May 24th, the last day of the term, and was then overruled. Appellants then objected to rendition of judgment on the last day of the term, relying upon rule 66 for the district courts (142 S. W. xxii). cluded, and the case submitted to the court until on said last day, and therefore rule 66 does not apply. The judgment is affirmed. WILLIS v. PEGUES. (No. 523.) (Court of Civil Appeals of Texas. Beaumont. Jan. 17, 1920.) 1. JUDGMENT 916-PETITION IN ACTION ON JUDGMENT SUFFICIENT TO PERMIT ADMISSION OF JUDGMENT IN EVIDENCE. 2. JUDGMENT 768(1)—ABSTRACT NEED NOT AFFIRMATIVELY SHOW LACK OF CREDITS TO The bill of exceptions relating to such objection, 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 in the case; failure to so allege not constitutthat neither of the appellants was presenting a misdescription of the judgment, nor conor 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. The order overruling the motion for premission to file an amended answer and introduce evidence does not show at what stage of the proceedings such motion was presented, nor is there any bill of exceptions which makes such showing. So far as the record discloses, the motion may not have been presented until after the trial of the case had been concluded, and the court had announced his intention of rendering judgment. It does not appear that the court was informed what evidence was sought to be introduced, or that it could be introduced in time to finish the trial during the term. It appears from 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 motion filed May 16th, in which they fully recognized the fact that the trial had not been concluded. The record is silent concerning the reason for delaying the presenting of such motion until the last day of the term. [1] The court was warranted in finding that appellants were negligent, not only in delaying the preparation of their case until the term convened, and relying upon securing a setting such as would enable them to prepare after court convened, but also in failing to attend court upon being notified that the Vernon's Sayles' Ann. Civ. St. 1914, art. 5612, does not require an abstract of judgment to affirmatively show, or to state in so many words, that there were no credits to which the judgment was entitled, in order to give a lien on land when filed with the county clerk of another county; it being sufficient that the abstract shows correctly the names of the parties to the suit, the number of the suit, the court in which the judgment was rendered, the date of the judgment, the amount thereof, the rate of interest it bore, the costs of suit, and the total amount due. Suit by O. H. Pegues against James F. Willis, administrator of the estate of Willis Judgment for plaintiff, Rather, deceased. and defendant appeals. Affirmed. D. M. Short & Sons, of Center, for appellant. Sanders & Sanders, of Center, for appellee. HIGHTOWER, C. J. The appellee in this case, O. H. Pegues, filed this suit in the district court of Shelby county against James F. Willis, as administrator of the estate of For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (218 S.W.) Rather by Ellington for the sum of $600, but alleged that such claimed lien by Ellington was subordinate and inferior to appellee's judgment lien, and prayed for judgment as against said defendants to that effect. Ellington filed an answer, in which he admitted that appellee had acquired a judgment lien against said tract of land, which was superior to his deed of trust lien, and made no further contest, and defendant Powell, as trustee in the deed of trust, filed no answer. 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 day of October, 1909, in the county court of Gregg county, Tex., plaintiff recovered a judgment against Willis Rather, now deceased, for the principal sum of $947, and that such judgment bore interest from its date at the rate of 6 per cent. per annum, and also that he recovered in that cause judgment for all costs of suit, which was $11.75. Appellee then alleged, substantially, that Willis Rather afterwards died, and that the appellant, James F. Willis, was duly and legally appointed administrator of his estate, and that after such appointment, and within due and legal time, appellee presented to said administrator his claim of indebtedness against Willis Rather, deceased, as evidenced by said judgment, no part of which had ever been paid by Willis Rather, and that appellant, in his capacity of administrator, had rejected said claim, and that appellee in due time thereafter filed suit thereon, etc. The appellant in this case, James F. Willis, as administrator of the estate of Willis Rather, deceased, filed his answer, consisting of a general demurrer and a number of special exceptions, and then a general denial, and then specially pleaded that appellee's judgment was dormant, and also specially alleged that appellee acquired no lien on the land in Rusk county, as claimed in his petition, for the reason that said land was the homestead of Willis Rather, deceased, at all times after he had acquired same. The general demurrer and all special exceptions interposed by appellant seem to have been overruled by the trial court, and since no assignment is presented in the brief of appellant challenging the correctness of such ruling, no further mention of those matters will be made. Appellee further alleged that execution on the judgment obtained in the county court of Gregg county against Willis Rather was duly issued in December following the rendition of the judgment in October before, and further that on the 9th of December of the same year a duly certified abstract of such judgment had been filed with the county clerk of 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 judgment in favor of appellee against appellant ment records of Rusk county, as required by law, and then alleged that at the time of such filing, indexing, and recording of such abstract of judgment, and at all times there after, the same became and constituted a lien upon any land at that time owned or thereafter acquired by Willis Rather, de ceased, during his lifetime, and that in fact such a lien had attached to a certain tract of land acquired in Rusk county by Willis Rather before his death, describing the same in his petition, and his prayer was, as against appellant in his capacity as administrator, that appellee have judgment against him es- By his first assignment 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. Appellee also made R. J. D. Ellington and F. C. Powell parties defendant in this cause, alleging, substantially, as against them, that Ellington was claiming a lien on said tract of land in Rusk county by reason of a deed of trust that had been executed by Willis 218 S.W.-7 in his official capacity for the full amount claimed by appellee against the estate of Willis Rather, and also declaring a lien in favor of appellee against the land in Rusk county, as claimed by appellee, which judgment was ordered certified to the probate court of Shelby county for observance, etc. It was further adjudged that appellee's lien, as claimed, was superior to the deed of trust lien claimed by Ellington, to which action of the court no complaint was made by Ellington, and Willis, administrator, is the only party appealing. that appellee's petition contained only a partial description of said judgment, when it should have contained a full and complete description of same. [1] Upon inspection of the record in this connection, we find that appellee's petition fully named the parties to this judgment, the |