county, was easily | track, where it was run down and killed by a passenger train. very common in that The controlling issue submitted by the trial court to the jury was whether or not appellant was guilty of negligence in perThere are some diseases of such known in- mitting the gate in its right of way to be curability and fatal character as would be open. Counsel for appellant contend that known to all men, nonprofessional as well the gate was placed there for the benefit as medical men, to be material to the risk of of the adjoining owner, and therefore that insurance, such, for instance, as tuberculosis, no duty rested upon it to keep the gate closcancer, and syphilis, but East Texas chills ed. It is provided by statute in this state and fever do not come in this category. Ar- that railroad companies shall be liable for ticle 4834 places the burden of proving the materiality of the false statement upon the defendant. No physician was called to prove that the sickness for which Dr. Rogers attended Mrs. Jordan did in any probability endanger the prolongation of her life, and no evidence was offered to show that any insurance company would probably have rejected her application had it known the facts in reference to such sickness. the value of all stock killed or injured by the locomotives and cars used in operating their railways, provided, however, that if the road be fenced, the company shall not be liable unless it is made to appear that the injury resulted from a want of ordinary care on the part of the company. It is also provided by statute that if a railroad fences its right of way, it may be required to make openings or crossings through its fence and Finding no error of record, the judgment over its roadbed every 11⁄2 miles; and it is of the trial court is affirmed. May 20, 1914.) Where a railroad company whose line sep- Appeal from Williamson County Court; Richard Critz, Judge. Action by F. C. Humphrey against the International & Great Northern Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed. Fisher & Fisher and Robert L. Thompson, all of Austin, and Wilson, Dabney & King, of Houston, for appellant. Nunn & Love, of Georgetown, for appellee. KEY, C. J. This is an appeal from a judgment rendered by the county court of Williamson county in favor of appellee and against appellant, for the value of a mule killed by one of appellant's trains. The mule was killed on appellant's right of way, which was fenced, and appellant contends that the testimony wholly fails to show that it was guilty of any negligence. The mule escaped from the plaintiff's premises, entered a field belonging to a Mr. Westberg, and passed out of that field through an open gate in appellant's right of way fence, and onto the railroad further provided that if such fence shall divide any inclosure, at least one opening shall be made in the fence within such inclosure. Construing these statutes, our courts have held that, unless railway companies fence their rights of way they are liable absolutely for live stock killed or injured by passing trains, and that when they fence their rights of way the law requires them to maintain the fence in such condition as to be reasonably sufficient to prevent live stock from entering upon the railroad track, with the exception, however, that if the railroad runs through and divides an inclosed tract of land, and gates are placed in the right of way fence for the benefit of the owner or occupants of the land so inclosed, then no obligation rests upon the railway company to keep the gate closed. In this case the proof shows that the railroad right of way and the railroad track ran through two farms, one belonging to Mr. Westberg and the other either to his mother or his brother, and indicates that they all lived together in a residence on the farm belonging to the first-named Westberg. However, instead of the proof's showing that the railroad divided an inclosure, it shows that the two farms were separate, and also shows that the gate in question was located between two public road crossings, not more than a mile apart. As to why the gate referred to and the one opposite it in the right of way fence on the other side of the railroad were placed there, the testimony is very meager, but indicates that perhaps it was done for the benefit of the Westbergs, in order that they might have easy access to and But the fact from their respective farms. remains that the two farms not only belonged to different owners, but were not within the same inclosure, and for this reason we hold that it was the duty of the railroad com pany to exercise proper care to prevent the gate from being open on the occasion in question, and the evidence supports the finding of the jury that such ordinary and proper care was not exercised; and therefore we rule against appellant on the controlling question in the case. Ry. Co. v. Wilson, 124 S. W. 132, and Ry. Co. v. Lee, 135 S. W. 694, and authorities cited in both cases. All the questions presented in appellant's brief have received due consideration, and our conclusion is that the judgment should be affirmed; and it is so ordered. Affirmed. OWENS v. FIRST STATE BANK OF BRONTE. (No. 5344.) Austin. (Court of Civil Appeals of Texas. 1. BANKS AND BANKING (§ 154*)-ACTIONS BY DEPOSITOR EVIDENCE. In an action by a depositor who claimed that a balance was due him from a bank, where the bank claimed that it had properly charged his account with the amounts claimed, evidence showing the depositor's connection with an oil company, and that the amounts were charged in connection with the oil company's business, is admissible to explain such charges. not improperly place the burden of proof on him, where the court charged that the bank had the burden of proving its affirmative defenses of payment with authority and ratification. [Ed. Note. For other cases, see Trial, Cent. Dig. 88 705-713, 715, 716, 718; Dec. Dig. § 296.*] Appeal from District Court, Coke County; J. W. Timmins, Judge. Action by B. T. Owens against the First State Bank of Bronte. From a judgment for defendant, plaintiff appeals. Affirmed. W. C. Merchant and Thomas & McCarty, all of San Angelo, for appellant. Blanks, Collins & Jackson, of San Angelo, for appellee. RICE, J. This suit was brought by appellant against appellee to recover $548.75 claimed as a balance due him from it, alleging that during the years 1908, 1909, and 1910, he had an account with said bank, during which time he had deposited to his credit therein several thousand dollars, but had prior to August 30, 1910, checked it all out except that amount; that on August 30, 1910, appellee had charged him with $500, on October 25, 1910, had made a like charge against him for $25, and on November 16th had charged [Ed. Note. For other cases, see Banks and Banking, Cent. Dig. §§ 502-512, 515, 516, 518-him with $23.75, all of which were made with533; Dec. Dig. § 154.*] 2. BANKS AND BANKING (§ 154*)-DEPOSITSCONVERSION. In an action by a depositor who claimed that a bank had converted funds belonging to him, the bank may show the depositor's connection with the partnership, in whose behalf it paid out the funds, to corroborate its contention that the payments were authorized. [Ed. Note.-For other cases, see Banks and Banking, Cent. Dig. §§ 502-512, 515, 516, 518533; Dec. Dig. § 154.*] 3. APPEAL AND ERROR ($ 1170*)-REVIEW HARMLESS ERROR. Under court rule 62a (149 S. W. x), the improper exclusion of evidence will not justify a reversal, where it would not have affected the result. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4032, 4066, 4075, 4098, 4101, 4454, 4540-4545; Dec. Dig. & 1170.*] 4. EVIDENCE (§ 314*)—HEARSAY—WHAT CON STITUTES. Where the members of a firm, at a conference, agreed that one partner should order machinery, a partner present at the conference may testify that the machinery was ordered for the firm; the matter being within his own knowledge and not hearsay. [Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 1168-1173; Dec. Dig. § 314.*] 5. TRIAL (8_252*)—INSTRUCTIONS-APPLICABILITY TO EVIDENCE. Where an issue is supported by evidence, it is proper for the court to charge thereon. [Ed. Note.-For other cases, see Trial, Cent. Dig. 88 505, 596-612; Dec. Dig. § 252.*] 6. TRIAL (§ 296*) - INSTRUCTIONS-ERROR CURED BY OTHERS. In an action against a bank for money which a depositor claimed was wrongfully paid out, a charge that the depositor had the burden of proving his case, was not misleading and did out his authority; that but for which appellee's own books would show that it was indebted to him in said sum sued for; that on May 8, 1912, he drew a draft on said bank through the Farmers' & Merchants' Bank & Trust Company of Sweetwater for said amount, payment of which was refused. Appellee answered by general denial, and specially denied that it owed appellant anything, and averred the facts to be that prior to August 30, 1910, appellant and J. B. Reilly, then cashier of said bank, W. A. Anderson, and one Weaver formed a partnership, known as the Owens Oil Company, to prospect for oil at Edith, each subscribing $500 to said company; that said company purchased certain machinery which had been Consigned to it by the seller, with draft drawn through appellee attached to bill of lading; that this machinery could not be removed from the railroad depot until said draft was paid; that appellant authorized Reilly, appellee's cashier, to pay $500 thereon out of his funds at the bank and charge same to him, which he did, crediting the oil company therewith and debiting Owens' account with said amount; that the other items were paid out for expenses connected with the operation of said oil company's business by appellant's direction, and that said bank was in no way interested in said oil company; that, in addition to such express authority, appellant was estopped from setting up said demand against appellee because it had furnished him statements of his account, showing such charges had been made, and he had ratified the same by acquiescing | the instance of appellant, to the effect that therein. There was a jury trial, resulting in a verdict and judgment in behalf of appellee, from which this appeal is prosecuted. The facts show that appellant had an account with appellee, as alleged, but also showed that he had entered into said partnership, participated in the ordering of said machinery as well as the management and operation of the affairs of said company, and had subscribed $500 thereto; that he expressly authorized appellee's cashier Reilly to charge him with each of said items above set out; and that he was cognizant of the fact that said charges had been made against him and acquiesced therein, whereby he ratified same. the burden of proof was upon appellee to establish its defense, viz.: That said payments were made by the authority of plaintiff, or that he had ratified same, and that unless defendant had established such facts of payment or ratification, by preponderance of the evidence, to find for the plaintiff. We do not think the jury could have misunderstood or been misled by this charge. Hence we overrule those assignments urging that the court improperly placed the burden of proof upon the plaintiff. Believing that the evidence amply sustains the verdict and judgment, and finding no error in the proceedings of the trial court, its judgment is in all respects affirmed. Affirmed. Austin. KIDD v. SPARKS. (No. 5361.) MORTGAGES (§ 38*)-DEEDS AS MORTGAGES -EVIDENCE-SUFFICIENCY. Evidence held to show that a deed absolute in form was, in fact, a mortgage. [Ed. Note.-For other cases, see Mortgages, Cent. Dig. 88 108-111; Dec. Dig. § 38.*] 2. MORTGAGES (§ 87*)-ABSOLUTE DEEDS AS MORTGAGES-EVIDENCE-ADMISSIBILITY. On the issue whether a deed absolute in form is, in fact, a mortgage, the grantor may Cent. Dig. 88 97-107; Dec. Dig. § 37.*] [1, 2] It is contended on the part of appellant, by his first three assignments, that the court erred in permitting appellee to show his connection with said oil company, as well as his participancy in the management thereof, on the ground that the same was immaterial and irrelevant. These assignments are overruled. Said evidence was admissible in 1. explanation of how the charges came to be made by the bank against appellant. Besides this, since appellant had charged the bank with conversion of said fund, it had the right, in corroboration of its contention that the same had been paid out by his express authority, to show that said fund had been paid to said oil company for his benefit. [3] While the court may have erred in refusing to permit appellant to show that in the spring of 1911 he had arranged to file suit against appellee for the items sued for herein, still we do not believe that this would constitute reversible error in the state of the record, since, in our opinion, it did not amount to such a denial of the rights of appellant as was reasonably calculated to cause, and probably did cause, the rendition of an improper judgment in the case. See rule 62a (149 S. W. x) for the government of this court. [4] It was not error, as contended by appellant, to permit Reilly to testify that the machinery had been ordered for the Owens Oil Company, because he stated that all the parties concerned had a conference before Weaver went to San Antonio, in which it was agreed that the same should be ordered by him for the company. These facts were matters within the witness Reilly's own knowledge, and not hearsay; hence the fifth assignment is overruled. Appeal from Coleman County Court; F. M. Bowen, Judge. Action by J. R. Sparks against W. M. Kidd. From a judgment for plaintiff, defendant appeals. Reversed and remanded. Snodgrass, Dibrell & Snodgrass, of Coleman, for appellant. Critz & Woodward, of Coleman, for appellee. KEY, C. J. J. R. Sparks brought this suit against W. M. Kidd in the county court of Coleman county, to recover the sum of $425, alleging that it was a balance due upon an agreed consideration for the sale of certain lots in the town of Talpa, in that county, conveyed by Sparks to Kidd by deed dated October 27, 1911. In his answer the defendant, Kidd, denied that he owed the plaintiff anything, and al[5] There was ample evidence on the sub-leged that the deed referred to was, in fact, ject of acquiescence and ratification. We a mortgage, and was given for the purpose therefore overrule the several assignments of appellant complaining that the court erred in charging upon this subject. of securing an indebtedness from Sparks to him, the consideration being $250 owing by Sparks to Kidd upon a promissory note, and $21 due upon an open account and Kidd's agreement with Sparks to permit him, on the faith of the deed, to purchase goods, wares, and merchandise from Kidd, and that it was the understanding between the parties that [6] We do not think any error was committed by the court in its charge on the burden of proof. After stating that the plaintiff must prove his case by a preponderance of evidence, the court gave a special charge at when Sparks paid all of his indebtedness | tain sum. But, while he stated that his then owing and subsequently to accrue, that indebtedness to Kidd at the time the deed Kidd would reconvey the property to Sparks. He also disclaimed any title to the land. Plaintiff, Sparks, filed a supplemental petition, specially denying the facts alleged in Kidd's answer. The case was submitted to a jury upon special issues, and the jury found: (1) That the deed referred to was made for the purpose of securing an indebtedness from Sparks to Kidd; (2) that at the time of the execution of the deed it was agreed between the parties that the consideration was to be $750; and (3) that it was provided by written agreement executed at the same time that the plaintiff, Sparks, should have the right to repurchase the property within one year, for the consideration of $750. Upon those findings the court rendered judgment for the plaintiff for $425, and interest thereon from the 1st day of January, 1912, at the rate of 6 per cent. per annum, and the defendant, Kidd, has appealed. [1] Overruling all the other assignments of error, we sustain assignment No. 3, which, in substance, assails the verdict as being contrary to, and unsupported by, the testimony; appellant's contention being that the evidence shows that the deed was executed for the purpose of securing indebtedness from appellee to appellant, and that appellant never became indebted to appellee in any sum as a consideration for the execution of the deed. After careful consideration of the statement of facts, we have reached the conclusion that appellant's contention is correct, and that the verdict ought not to be permitted to stand. The testimony of the defendant, Kidd, was clear and specific to the effect that the deed was executed for the purpose of securing the amount which Sparks then owed him upon a $250 note, and upon an open account, and in order to obtain further credit at Kidd's store, and that he never promised to pay Sparks anything, and that the written instrument executed at the same time, which, by mutual agreement, was subsequently destroyed, was executed for the purpose of showing that Sparks was entitled to have the property reconveyed to him upon the payment of his indebtedness to Kidd, and that he still held the $250 note against Sparks. As a witness on the stand, Sparks, made two or three general statements to the effect that it was the understanding that he was to have the right to buy the property back within a year's time by paying a cer was executed was part of the consideration for the deed, he admitted that he did not demand from Kidd the $250 note which he had given for the greater portion of that indebtedness, and the note was produced and put in evidence by Kidd. Sparks also admitted that over two months after the execution of the deed, and at a time when he now claims Kidd was indebted to him in the sum of $425, he executed a note to Kidd for the sum of $250, due October 1, 1912, and executed a chattel mortgage on certain horses and on his entire crop on 95 acres of land. In Harrison v. Hogue, 136 S. W. 118, the court says: "It seems clear that, where the consideration of a deed is a pre-existing debt, unless it is shown that the debt, to the extent of such consideration, is extinguished and the evidence of it surrendered, the instrument will be declared to be a mortgage." So we hold that the conduct of Sparks in not demanding the surrender of the $250 note, which he now claims he paid when he executed the deed, and his subsequent conduct in executing another note to Kidd for $250 and securing the same by a chattel mortgage, at a time when, he now claims, Kidd was owing him $425, are so utterly inconsistent with that contention as to render his evidence in support thereof incredible and untrustworthy. Error is assigned upon that portion of the court's charge which instructed the jury that the burden was upon the defendant Kidd to show that the deed referred to was intended as a mortgage. We are not disposed to sustain that objection, but suggest that, upon another trial, the court frame its charge upon that subject in conformity with the suggestion of the Supreme Court in Howard v. Zimpelman, 14 S. W. 59. [2] We also suggest that, instead of permitting the plaintiff to testify that in executing the deed he did not intend to make a mortgage, the court require the witness to state what was done and said at that time. However, we hold that it is permissible for the grantor in an instrument which purports to be a deed to state whether or not it was executed for the purpose of securing a debt, as that is the true test of whether or not such an instrument will be given effect as a mortgage. For the reason given, the judgment is reversed, and the cause remanded. Reversed and remanded. ants bring error. Reversed, and cause re PECOS & N. T. RY. CO. et al. v. THOMP-manded, with directions. (Supreme Court of Texas. June 17, 1914.) DENCE. The Supreme Court, on writ of error to review a judgment of the Court of Civil Appeals affirming a judgment of the trial court, will not disturb the verdict, where there is sufficient evidence to support it. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4322-4352; Dec. Dig. § 1094.*] 2. RAILROADS (§ 22*) — ACTIONS - VENUE STATUTORY PROVISIONS-CONSTRUCTION. The proviso in Rev. St. 1911, art. 1830, subd. 26, that a nonresident may sue a railroad company in any county in which the company operates its road, or has an agent, is an exception to the general provision that actions against railroad corporations shall be brought either in the county in which the injury complained of occurred or in which plaintiff resided at the time of the injury, and must be strictly construed; and a plaintiff seeking the benefit thereof must prove that he was a nonresident at the time of the injury, and that he was a resident of some other state, territory, or country, and was, at the time of the accident, living outside the state. [Ed. Note. For other cases, see Railroads, Cent. Dig. $8 46-50; Dec. Dig. § 22.*] 3. RAILROADS (§ 22*) - ACTIONS STATUTORY PROVISIONS CONSTRUCTION "RESIDENCE"-"DOMICILE." VENUE "Residence," within Rev. St. 1911, art. 1830, subd. 26, fixing the venue of actions against railroad corporations for damages for personal injuries, means living in a particular locality, and requires bodily presence as an inhabitant in a given place, as distinguished from "domicile," which means living in a locality with intent to make it a fixed and permanent home; and one who has no residence elsewhere, but resides in Texas, by being bodily present in the state engaged as a laborer there, is not a nonresident. [Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 46-50; Dec. Dig. § 22.* ACTIONS VENUE – - For other definitions, see Words and Phrases, vol. 7. pp. 6151-6161; vol. 8. p. 7188; vol. 3, pp. 2168-2179; vol. 8, pp. 7641, 7642.] 4. RAILROADS (§ 22*). STATUTORY PROVISIONS. A laborer who left his home and went from place to place in search of work, and working at short intervals, and who obtained work as a brakeman at a town, and who continued in such employment for something over a month up to the time of an injury, was either a resident of the state or a transient, and an action for the injury must be brought in the county in which it occurred or in the county in which he resided at the time, as required by Rev. St. 1911, art. 1830, subd. 26. [Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 46-50; Dec. Dig. § 22.*] Hawkins, J., dissenting. H. E. Hoover, of Canadian, Terry, Cavin & Mills and A. H. Culwell, all of Galveston, for plaintiffs in error. Barrett, Jones & Yates, of Amarillo, N. A. Stedman, of Austin, and F. A. Williams, of Galveston, for defendant in error. BROWN, C. J. A plea to the jurisdiction of the district court of Roberts county was filed, claiming that the venue was properly in Potter county, was submitted to the jury by the trial court, and the issue was decided adversely to the defendant below. The plaintiff in error presented the issue on appeal to the Court of Civil Appeals for the Seventh District, and by that court also decided adversely, and the same question is now presented to this court. [1] In the trial court it was an issue of fact, but in this court it is an issue of lawthat is, this court must take the view of the evidence most favorable to the contention of the defendant in error; and, if there be sufficient evidence to support the finding of the jury, we will not disturb their verdict no matter what may be our view of the evidence. We copy the statement of the evidence as it appears in the brief of defendant in error filed in this court, which follows: "Plaintiff was born in Kentucky and, during his childhood, was carried by his mother to Alabama, where, it is undisputed, both resided until June 20, 1908. Plaintiff is a laboring man, and the evidence indicates that before the lastnamed date he had had occasional employment away from home. He had worked as brakeman for the Louisville & Nashville Railway Company, running between Mobile and New Orleans, spending his time between the two places and partly in one and partly in the other, but keeping his home in the same little town near Mobile, and visiting it occasionally. His mother then and now owns a home in Alabama, which he says he gave her, paying the principal part of the purchase money, and he lived in the same town. He has two children, five and three years old, respectively, and two sisters, all in Alabama. The children are under the charge of his mother generally, but when he testified rated and were divorced in 1908, and on June were with his sisters. He and his wife sepa20, 1908, he left his home, leaving not only his children, but his bedstead, beds, chairs and parts of his clothes in the house. His intention when he left was to return when he made some money. He gives the following account of his wanderings between June 20, 1908, when he last left home, and January 18, 1910, when he received the injury for which this suit was brought: He first went to Mobile; stayed there a day and night; thence to Meridian, Miss.; thence to Jackson, Tenn.; thence to Louisville, Ky., and stayed two nights, trying for work and failing; thence to Chicago, staying one day ing three weeks, working for a motor company; thence to Minn., working in the harvest fields; thence to Fargo, N. D., staying until the last of January, 1909, working in harvest fields, in an elevator, and as switchman for the Northern Pacific; thence back to Minneapolis, staying two or three months, working for the same motor car company as before; thence about Error to Court of Civil Appeals of Sec- and night; thence to Minneapolis, Minn., stayond Supreme Judicial District. Action by W. C. Thompson against the Pecos & Northern Texas Railway Company and another. There was a judgment of the Court of Civil Appeals (140 S. W. 1148) affirming a judgment for plaintiff, and defend For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes |