Action by R. J. Harris against T. M. Campbell, receiver of the International & Great Northern Railroad Company, for personal injuries to plaintiff's wife, caused by defendant's negligence. From a judgment entered on the verdict of a jury in favor of plaintiff, defendant appeals. Affirmed. G. H. Gould, for appellant. Sink & McMeans, for appellee. PLEASANTS, J. The appellee was in the employment of appellant as foreman of the fence gang,-men employed in fencing the right of way of appellant,-and he was at the same time boarding the hands under his charge and supervision. For this he was paid 50 cents per day for each boarder, the defendant retaining the board out of the wages of the men. The company furnished appellee with three cars, one of which was occupied by the men, another by the foreman and his cook, and the third was used as a kitchen and mess hall. While so employed in service of defendant, appellee's wife, while on a visit to him, was, as he alleges in his petition, injured by the derailment of the car in which they were lodging, with their two children and the cook, the derailment being caused through the alleged negligence of one of the servants of defendant company. The appellee brought suit and recovered judgment for the sum of $4,750, from which judgment defendant appealed. The defense made to the action was contributory negligence, negligence of fellow servants, and that the wife of plaintiff was voluntarily in the car, without de fendant's knowledge or permission, and defendant owed her no duty, and she assumed the risk of her situation. The facts of the case, in addition to those recited in the statement, given above, of the plaintiff's suit, and its result, are, as we deduce them from the record, as follows: On the 8th of February, 1891, about midnight, while appellee and his wife and children were asleep in appellant's car, it became necessary to remove the car from the track on which it was standing, and for this purpose the conductor of a freight train operated by defendant between Phelps and Tyler attached an engine to the car, and attempted to switch it on another track, and the car was derailed, and pulled for some distance over the cross-ties, and finally thrown from the track upon the ground. It was not turned over, but tilted at an angle of about 45 degrees. Appellee and his wife and one child were sleeping together. Their bed was not turned over, nor was any one of them thrown from the bed, but they were jolted and piled upon each other, against the side of the car. They lay upon two mattresses, but, notwithstanding this, the jolting over the cross-ties shook them up considerably. The wife was assisted from the car, and with assistance she walked first to the de pot, and from there to the hotel in the town, where she remained until some time during the day of the 9th, when she returned to the car, and continued to stay on the same, with her husband and children, for some weeks. There is testimony that at the time of the occurrence both the wife and the husband declared that she was badly scared, but not hurt. The accident resulted from the conductor's mistake in turning the wrong switch. There were two switches very near each other, and the conductor made the mistake, as he admitted, of turning one of the switches when he should have turned the other. He told appellee he was the cause of the damage to his property on the car, and directed him to make out his account. The appellee estimated his loss by injury to his cooking stove, his crockery, and one of his bedsteads, at $15, which sum was paid him by the conductor. Some days before the accident the appellee applied for leave to visit his family at Palestine. He was told by the officer to whom he applied for a leave of absence that he could not be spared from his work, but that he would go to Palestine in a few days, and would procure a pass for his family, and send them down on a visit to him; and it was also shown that it was the habit with men who boarded railroad hands to take their families with them, and to keep them in the cars furnished by the company for boarding purposes. The testimony of the witnesses for the plaintiff as to the condition of the wife's health before the accident was that it was good; that she was able to and did cook and sew for herself and children. On the other hand, there was testimony for the defendant to the effect that the wife had been an invalid for years, and that her husband had brought her from her home to stay upon the cars in the hope that the change would be beneficial. Dr. West testified that he was the family physician of appellee at one time for several years; that he had not been his physician for three or four years before the accident by which his wife was said to have been injured; that when he treated appellee's wife she suffered from constipation and falling of the womb, and was subject to flooding. His opinion was that her present suffering could not have been produced by the jolting or concussion she received at the time of the derailment of the car in which she was lodging. Since the accident the wife has been an invalid. She is over 45 years of age; suffers from pain in back and abdomen and head, and from flooding; and has a lump in her side, which her physicians say is one of her kidneys, which has been from some cause displaced; and if she was in good health at the time of the accident and previous thereto, about which they have no knowledge, except that derived from her statements, they think the displacement of the kidney was proximately caused by the shock her CAMPBELL v. HARRIS. system received from the derailment of the car. Other surgeons who testified were of the opinion that the sufferings of appellee's wife could not have been caused by the jolting incident to the derailment of the car. The appellant's objection to the judgment for appellee may be considered under three heads: First, the evidence makes it manifest that if plaintiff has suffered injury the injury was caused by the negligence of his fellow servant; second, that the jury were instructed that in assessing the damages they might allow for the mental suffering of the wife; and, third, that, the wife being upon the car for the convenience and comfort of her husband, and at most only by permission of the defendant, defendant owed to her no higher duty than it owed the plaintiff, and, if negligence of a fellow servant precludes recovery by plaintiff, it must defeat also a recovery by his wife. the first of these objections it suffices to As to say that, if plaintiff was suing to recover damages for injuries inflicted upon himself through the negligence of a fellow servant, the objection would be well taken; but when the suit is by the husband for damages for Injuries inflicted upon the wife the rule that one cannot recover for injury caused by the act of a fellow servant has no application. If plaintiff's wife is entitled to damages, the suit must be brought by the husband. She cannot institute the suit herself. It must, except in rare cases, be brought by the husband, and in his name. to be a passenger on a train of cars, and her Suppose a wife husband should be one of the trainmen, and through the negligence of one of his fellow servants the train should be derailed, and the wife, by the derailment, severely injured, could it be pretended that the wife could not recover because the suit brought by her husband? We think not. The reasons in which the rule invoked by appellant is founded have no connection with or bearing upon the question of the right of the wife to recover in this case. When the reason for the rule ceases, the rule itself ceases to operate. The second objection is clearly not tenable. That mental suffering is a basis or element of damages is not denied, but it is insisted that such suffering is not an element for damages when the plaintiff sues for injuries inflicted upon another. While this is true, as a general rule, it is not true when the suit is by the husband for injuries to the wife. In such case the same rule applies as would if the suit were by the wife herself. Brown v. Sullivan, 71 Tex. 470, 10 S. W. Rep. 288; Railway Co. v. White, 80 Tex. 202, 15 S. W. Rep. 808. The evidence shows very plainly that appellee's wife was staying with her husband upon the cars of defendant, not only by the permission of defendant, but at the suggestion of the agent or servant of defendant, under whose orders appellee was working. The contention of was Vide 37 appellant that one who is upon a train of cars through favor or courtesy cannot recover for injuries resulting from negligence of the servants of the railway company is doubtless the rule of some of the states of the Union, but such is not the rule here, as we understand the decisions of our supreme court. Vide Railway Co. v. White, 80 Tex. 202, 15 S. W. Rep. 808; Brown v. Sullivan, 71 Tex. 470, 10 S. W. Rep. 288; and Prince v. Railway Co., 64 Tex. 144. ing hands in the employment of defendant, In the case of Brown v. Sullivan, the plaintiff was boardthe receiver of the Texas & Pacific Railway. He was furnished cars for this purpose by defendant, and his wife stayed with him upon these cars, and cooked for him, and while so engaged she was injured. Her injuries were caused by the negligence of defendant's servants in handling an engine. The engine and its tender, while being switched in the yard, were allowed to come plaintiff's wife was standing as to throw her with such force against the car in which the from the car upon the ground, by which she was severely injured. The plaintiff was permitted to recover damages for the injury sustained by his wife. From this, and the other cases cited above, it is evident that, under the law as construed and administered in the courts of this state, one who is on the cars of a railway company, not as a passenger, but simply through the favor or courtesy of the company, may recover damages for injuries to his or her person, caused by the negligence of the servants of the company. In the face of these decisions, we do not feel authorized to reverse the judgment rendered for the appellee. We do not think the court erred in the charge given to the jury, nor did it err in refusing the charges asked by the defendant, and in overruling the defendant's demurrers to the petition. There is much that may be said in support of the contention made by appellant's counsel that the plaintiff's wife, in going and remaining upon the cars of defendant with her husband, assumed the risks of such accidents, at least, as the one by which she claims to have been injured. But for the decisions to which we have referred, the writer would be inclined to hold that, under the facts of this case, the defendant should not be liable to the plaintiff without proof that defendant was guilty of negli gence in the selection of its servants. judgment of the court below is affirmed. On Rehearing. (June 29, 1893.) The We have duly considered appellant's motion for a new hearing, and, after weighing the argument of its learned counsel in support of the motion, we are constrained to say, with all deference to counsel, that we find nothing in their motion or their briefs which shakes our confidence in the correctness of the decision rendered herein on a wife the right to recover damages for in husband's fellow servant is to bind her by a contract to which she is not a party. The wife is not bound by the husband's contract to assume all risks of injury to his person resulting from the negligence of his fellow servants. The existence of the wife is not, with us, as at common law, merged in that of her husband. She has rights and can maintain suit for their protection, and she can recover damages for wrongs done her, and the money recovered for such wrongs is not, as at common law, the exclusive property of the husband; and while it is true that the wife must generally sue in the name of her husband, he who has wronged her cannot justify under a contract made with her husband, to which she is in no wise a party. The husband, it is true, can by his contract convey the interest of the wife in the community estate, but we know of no law which would authorize the husband to make a contract binding upon the wife, which would exclude her from the right to recover for injuries to her person, inflicted by the wrong or negligence of another. The motion must be denied. PALMER et al. v. TEXAS TRAM & LUM- June 1, former day. Counsel misapprehend the purpose for which the cases of Brown v. Sulli-juries resulting from the negligence of her van, Railway Co. v. White, and Prince v. Railway Co. are cited in the opinion announcing the decision in this case. These authorities were cited to show the liability of a railway company to a mere license for injuries sustained by the negligence of the company's servants. The opinion does not hold that these cases negative the proposition that a wife of a railway employe cannot, in this state, maintain suit in the name of her husband against the husband's employer for injuries inflicted by a fellow servant of her husband. The opinion rejected this proposition, and attempted to show its fallacy, but not by reference to the decisions above cited. If we apprehend correctly the ground upon which appellant's counsel rest their motion for a new hearing, it is this: Because the law does not permit the husband to recover from his employer damages for injuries received by his wife, through the negligence of the husband, that, therefore, the husband cannot recover from his employer for injuries to his wife, inflicted through the negligence of the husband's fellow servant. To the proposition that the husband cannot recover and should not recover of his employer damages for injuries received by his wife through his negligence, we give our full assent; but to the other proposition, that the husband cannot recover of his employer damages for injuries sustained by the wife through the negligence of the husband's fellow servant, we cannot assent. The second proposition is not, as counsel, in their argument, seem to assume, a logical sequence of the first. Every employe of a railroad, in contemplation of the law, by the contract of employment, agrees and undertakes to exercise skill and care in the discharge of his duties. Such being the nature of the contract between the employer and the employe, it would manifestly be unjust to the employer to permit an employe to recover damages from his employer for injuries received by the wife of the employe through his own negligence. To permit such recovery would allow the employe to reap a benefit for his breach of contract. And the wife should not be permitted to recover, for the reason that to permit her to do so would, in effect, concede the right of the wife to recover damages from her husband for injuries inflicted upon her person by or through his negligence; because, if the employer be liable to the wife for injuries inflicted upon her through the negligence of her husband, then the employer should recover from the husband, under his contract of employment, the damages recovered of him by the wife. These are the reasons, as we conceive, why the wife is held by the law chargeable with the negligence of her husband, and is in such case denied a remedy against his employer. But to deny the 1893.) TRESPASS TO TRY TITLE-DEED-ACKNOWLEDG MENT. In trespass to try title by the heirs of P. against one in possession under a deed from the heirs of W., it appeared that in 1839 P., being the owner in common with his wife, gave H. power of attorney to sell and convey the land: that in 1844 H. conveyed the land to W. by deed, the certificate of acknowledgment to which reciting facts showing that the cousideration therefor inured to H. personally, and not to P.; that such deed was recorded by H. in 1850, and that W. paid the taxes from 1846 to 1850, at least; that in 1886 W.'s heirs conveyed the land to defendant. The evidence showed that P. died in 1850, and his wife in 1890; that in 1850 plaintiffs removed with their mother from the county in which the land was situated, and have never paid taxes on, nor asserted any claim to, the fand, until 1891, when suit was brought. Held, that the circumstances, in view of the great lapse of time, justified the court in holding that the deed to W. passed the title, notwithstanding the defective acknowledgment. Appeal from district court, Jasper county; Stephen P. West, Judge. Action in trespass to try title by J. M. Palmer and others against the Texas Tram & Lumber Company. Defendant had judgment, and plaintiffs appeal. Affirmed. W. S. Blake, K. B. Seale, and W. B. Pow ell, for appellants. Ford & McComb, for appellee. WILLIAMS, J. Trespass to try title by appellants, as heirs of Martin Palmer, to recover of appellee 1,614 acres of the Wil liam Williams league, in Jasper county. From a judgment of the district court in favor of the defendant, this appeal was taken. It was shown that, prior to 1844, Martin Palmer and his wife owned the land in controversy as their common property, and that in 1839 he executed a power of attorney to Charles S. Hunt, authorizing him "to sell and dispose of and convey, by deed or otherwise," the land; "and, further, to sign, seal, and deliver to the purchaser or purchasers a deed, or any other instrument of writing, that my said attorney, Chas. S. Hunt, may think proper, for me and in my name, as though I was personally present, * * * and, further, to do, perform, and execute, for me and in my name, all and singular, the things that shall or may be necessary, &c., in the premises." On the 4th day of July, 1844, Hunt-and as attorney in fact, and in the name, of Palmer-executed a deed of the land to John D. Wilkens, reciting a paid consideration of $1,000, and containing a general warranty of title. Attached to this deed is a certificate of acknowledgment by Hunt, as attorney in fact, made on the 6th day of July, 1844, which is in proper form, and states that he executed the deed "for the use and purpose therein contained: provided, it is expressly understood and acknowledged by the said Charles S. Hunt that the foregoing deed is given in consideration of eight land certificates, for one league and labor of land each, issued by the board of land commissioners of Jasper county, to wit, [here follows a list of the certificates,] which certificates, as aforesaid, Chas. S. Hunt sold to John D. Wilkens, of the parish of St. Mary, Louisiana, which being passed by the board of land commissioners for the county of Jasper, and, on examination by the board of examining commissioners, rejected, which circumstances render the validity of such claims doubtful, therefore this deed is given as an indemnity to said John D. Wilkens." Palmer continued to reside in Jasper county until March, 1850, when he died. His widow and children then moved to Walker county, where she continued to reside until her death, which occurred in the year 1890. This suit was brought in 1891. The records of Jasper county were burned in 1849. The deed from Hunt to Wilkens was recorded in December, 1850. Whether or not it had been recorded before the burning of the records, there is no evidence. It is shown that from 1846 to 1849, inclusive, Wilkens paid taxes on the land, and that during these years Palmer paid none. It was also proved that for the past 11 years the heirs of Palmer have paid no taxes. There is no evidence that they have ever paid any, or asserted a claim to the land. In 1886 the defendant bought the land from the heirs of John D. Wilkens, paying full value for it, and placing its deed upon record, and has ever since paid all of the taxes. In 1889 it took actual possession, and has since been cutting timber from the premises, that so used being of the value of $3,000. The circumstances and facts thus stated are all the record contains, and beyond that the evidence is silent as to any further claim or assertion of ownership of the land, either by Palmer and his heirs, or Wilkens and his heirs. The decision of the case turns upon the effect to be given to the recital in the acknowledgment that the conveyance of the land was made for a consideration which inured to Hunt, the agent, and not to his principal. That the power of attorney did not authorize such a conveyance as that recited in the acknowledgment is plain. Reese v. Medlock, 27 Tex. 120; Frost v. Cattle Co., (Tex. Sup.) 17 S. W. Rep. 52. The authority given to Hunt was to sell, and, having sold, to convey. He had no rightful power to convey without selling. The general terms were to be intended to be used in aid of the specific power defined, and not as containing in themselves an enlargement of the scope of the authority. It is suggested in argument that the land certificates which had been previously sold by Hunt to Wilkens probably belonged to Palmer, and that the obligation to indemnify Wilkens for their loss rested upon him, and that the conveyance was made in discharge of it. The language of the certificate does not suggest such a fact, and if it were admitted it would not bring the conveyance within the terms of the power, though it might render the inference of a ratification by Palmer more readily admissible. A power to sell does not include a power to convey in discharge of a pre-existing obligation or liability of the constituent. The question therefore recurs, what effect is to be given to the statement in the acknowledgment that the conveyance was made in consideration of an obligation existing on the part of the attorney in fact to the grantee, Wilkens? The statute at that time did not require that the certificate of authentication should contain any statement concerning the consideration of the instrument, and even now such a statement is not necessary. Monroe v. Arledge, 23 Tex. 479. The acknowledgment itself was not an essential part of the deed. That instrument operated from the time of its delivery, whether acknowledged or not. It bears a date two days prior to the acknowledgment, and, in the absence of evidence as to the time at which it was delivered, the weight of authority, and of reason, holds the presumption obtains that delivery was made at the date of the instrument, rather than that of the acknowledgment. Devl. Deeds, 178-181, 265. The deed therefore passed the title, or was void, irrespective of the recitals of the acknowledgment. The acknowledgment, by its own force, cannot have the effect of defeating or impairing the operation of the deed. If the deed was void or voidable, it was because of the facts, and not through any efficacy given by law to the certificate of authentication. But the recital in the certificate is, we think, evidence against the defendant, that the recited fact existed. It comes from the custody of those claiming under the deed on which it is indorsed, and together with which it is one of their evidences of title. The acknowledgment containing it was made use of as a means of recording the deed, and of thus asserting title. These circumstances show that the deed was accepted with the acknowledgment upon it, and the latter is not, therefore, to be treated as the ex parte statement of Hunt and of the officer. It is analogous to an assertion made by one person, prejudicial to the interest of another, in his presence, and assented to, or not denied. It is therefore evidence, but not conclusive evidence, that the fact existed as stated. It could certainly have been rebutted by positive testimony that it was not true, and that Wilkens had in fact paid the consideration recited in the deed for the use of Palmer, and it is equally true it could be rebutted by circumstances. For this reason it was proper to admit the deed in evidence, and to determine its effect, in the light of all the facts of the case. Thus considered, we cannot say that the court below was bound to accept the recital in the certificate as furnishing a controlling reason for holding the deed to have been inoperative. The evidence shows that, after the deed to Wilkens, Palmer paid no taxes upon the land; that since his death none have been paid by his wife, the alleged owner of one half, and his children, who claim to have inherited the other half, and there is no evidence of an assertion of any claim, or the exercise of any act of ownership by them; that, upon the receipt of the deed from Hunt, Wilkens commenced the payment of taxes, and put his deed on record at least as early as 1850; that in 1886 his heirs conveyed to defendant, thus asserting ownership; and that defendant at once recorded its deed, and has since paid taxes, and taken possession, and used the property. Thus, for more than 40 years, both parties interested in this conveyance have acted in a manner inconsistent with the fact that Hunt had conveyed without authority, and consistent with the hypothesis that his act was recognized as done in pursuance of the power conferred on him. Those claiming under the deed have asserted the title, and those whose interests would be prejudiced thereby have acquiesced. It is true that there is no direct evidence that either Palmer or his heirs knew of the conveyance by Hunt to Wilkens, but the evidence to charge them with notice of it is as strong as that which affects defendant with notice of the acknowledgment. It is not probable that persons who supposed they had title to land would fail to discover, during all the years that have passed, the facts of the conveyance. So we conclude that the circumstances of the case, in view of the great lapse of time, were sufficient to justify the court in holding that the deed passed the title notwithstanding the acknowledgment. It has been urged by appellee that, admitting the fact as to the consideration to be as stated in the acknowledgment, still the deed passed the legal title to Wilkens, and left in Palmer and his heirs only the equitable right to avoid the conveyance by action taken within reasonable time, and that their claim is rendered stale by lapse of time. The result of the authorities seems to be that, under a naked power to sell, a conveyance by the attorney in fact, without consideration, or upon a consideration inuring to himself alone, is void, as between the parties, and passes no title, either legal or equitable. Yet such a conveyance may be ratified, and may support a title in a subsequent bona fide purchaser from the grantee in the deed of the attorney; and this illustrates that it is not true, in an absolute and unrestricted sense, that the deed is void. In the hands of the grantee of the attorney in fact, and of all purchasers from him, with notice of the fraud, it is void, as against the constituent of the power, and may be so treated by him in an action of trespass or ejectment to recover the property, even in states where a recovery must be had in these actions upon the legal title. Meade v. Brothers, 28 Wis. 689; Campbell v. Campbell, (Wis.) 15 N. W. Rep. 138; Dupont v. Wertheman, 10 Cal. 368; Randall v. Duff, (Cal.) 19 Pac. Rep. 533: Jeffrey v. Hursch, (Mich.) 12 N. W. Rep. 898; Deputron v. Young, 134 U. S. 241, 10 Sup. Ct. Rep. 539; Mott v. Smith, 16 Cal. 534. In the case of Connolly v. Hammond, 51 Tex. 635, there are some expressions which seem to militate against this view. But that case was not one of a naked power to sell, but was treated as belonging to the class of cases in which a trustee, with power of sale, indirectly purchases the trust property. Such trustees were usually invested with the legal title, and can therefore convey it. In sales by executors, administrators, and guardians, the legal title passes by the action of the court. In all of these cases, if the trustee has perpetrated a fraud, and through another person attempted to acquire the property, the holder of the legal title is charged as trustee, but must be reached by timely action. But an attorney in fact, with a bare power of sale, is not clothed with any title to the property, nor with any power over it, except such as the instrument confers. The extent of such powers must be taken notice of by all persons dealing with him. When he exceeds that power he confers no right. The circumstances under which, after a long lapse of time, a ratification might be presumed or inferred, we need not, in view of the conclusion already stated, discuss. The judgment is affirmed. |