dressed a communication to the Bank of Central Arkansas concerning the Muse note which had been sent for collection, and inquired what amounts, if any, had been paid on the note, and what was thought of the prospect for an early collection. The cashier of the Bank of Central Arkansas answered, stating that a draft on St. Louis for $1,150 had been sent for collection, and that the cashier thought that "everything will be all right this week." It appears from the testimony that at that time the Bank of Central Arkansas had received a report of the payment of the St. Louis draft, and that the money was then standing on the books of the bank to the credit of Muse. was alleged in the complaint that the defend- | it to the account of Muse. On October 3d the ant Muse fraudulently represented to the cashier of the Oklahoma State Bank adplaintiff that said draft was drawn for the price of cattle purchased and shipped to plaintiff, and that the draft was drawn for the purpose of obtaining funds to pay a note of Muse to Johnson which had been sent for collection by the Oklahoma State Bank to the Bank of Central Arkansas. It is further alleged that Johnson was the owner of the note, and that he was aware of the design of Muse to obtain money from the plaintiff on false representations concerning the purchase of cattle in order to secure the payment of the draft for use in applying on the note. Defendant Oklahoma State Bank filed an answer and cross-complaint claiming to be the owner of the note referred to in the complaint by assignment from Johnson, and alleging that said sum of $1,150, together with the additional sum of $220 also received by the Bank of Central Arkansas from Muse, had been applied on the note, and prayed for judgment against the Bank of Central Arkansas for the amount so applied on the note, but which had not in fact been remitted to said Oklahoma State Bank. The facts of the case as developed in the testimony are as follows: The plaintiff was engaged in the cattle commission business at East St. Louis, and defendant Muse, who was operating as a cattle buyer in Oklahoma and Arkansas, opened up an account with the commission company for advances of money on payment of the drafts drawn on shipments of cattle which were to be sold on the market by the commission company for Muse. On September 23, 1913, Muse drew a draft on the plaintiff in favor of Ben Wildman for $1,150, and deposited the same for collection with the Bank of Central Arkansas. The amount of this draft was passed to the credit of Muse on that day by the Bank of Central Arkansas, and the draft was forwarded for collection and promptly paid by plaintiff on presentation. Muse executed his negotiable promissory note to defendant R. F. Johnson for the sum of $1,550, dated June 26, 1913, and payable October 1st after date. Johnson assigned the note before maturity to the Oklahoma State Bank, and on September 4, 1913, Oklahoma State Bank forwarded the note to the Bank of Central Arkansas for collection. This was done at the suggestion or upon the direction of Muse. The note was sent in the regular course of business with the usual instructions concerning the collection and return of the funds. Wildman testified that, when he deposited the draft with the Bank of Central Arkansas for collection, he instructed the cashier to credit the same upon the note; but that statement is disputed by the cashier, who in his testimony says that the instructions were merely to credit the amount to Muse, which he did, and furnished Plaintiff sent one of its agents to Arkansas to look into the affairs of Muse, and said agent visited Des Arc, where Muse had been buying cattle, and also went to Lonoke on October 19th and called to see the cashier of the Bank of Central Arkansas and informed him of the condition of Muse's account with plaintiff and that Muse's conduct in the transaction was wrongful. This agent also informed the cashier of the Bank of Central Arkansas that a suit against Muse would be instituted, and asked that the deposit to Muse's credit be not disturbed until after the papers could be gotten out for a suit. Wildman called up the Bank of Central Arkansas from Des Arc on October 20th and gave instructions to apply the amount of the $1,150 collection on the Muse note. This was done by Wildman upon instructions of Muse. Wildman testified that Muse instructed him to do so, and that statement is not controverted. The cashier made reply to Wildman that it would be done. The statement of the cashier was that he replied, "All right." The cashier thereupon made a pencil indorsement on the back of the note as follows: "Paid $1150.00, 10-20-13." The cashier also made out a charge slip directing the sum of $1,150 to be charged to Muse on his account. He placed the charge slip on the hook, and the bookkeeper subsequently entered it up on Muse's account, charging him with $1,150. On the night of October 20th, the cashier consulted the attorney of the bank, who told him that, in view of the prospect of a suit, he had better not remit the proceeds to the Oklahoma State Bank, but should hold the same for further development. This suit was instituted on October 21, 1913, and the writ of garnishment was served on the Bank of Central Arkansas on that date. The next day (October 22d), the cashier erased the pencil indorsement on the note and caused the bookkeeper to credit the sum of $1,150 back to Muse, and the account stands in that shape to this date. There was also a credit of $220 to Muse's account, in: addition to the $1,150, and the chancellor State Bank for said amount of $220, and that the money it received it as Muse's agent. sum has thus been eliminated from the controversy. The chancellor decided that, at the time the garnishment was served, the funds standing to the credit of Muse had not been applied on the note owned by the Oklahoma State Bank and were therefore subject to the plaintiff's garnishment. The evidence establishes beyond controversy the fact that Muse induced the plaintiff by false representations to pay the draft which he had drawn in favor of Wildman, and the evidence is also convincing that Wildman, who acted as agent of Muse, participated in the fraudulent scheme to secure the money from plaintiff. There is, however, no testimony tending to show that the defendant Oklahoma State Bank participated in this fraud, or that it was not an innocent purchaser of the Muse note for value before maturity. There is nothing in the record that would warrant a finding against the good faith of the Oklahoma State Bank in the transaction. [1] It is, as contended by counsel for appellant, well settled by the authorities that money which has been misappropriated, or which has been obtained by fraud and aft erwards paid to an innocent party, cannot be recovered. Holly v. Missionary Society, 180 U. S. 284, 21 Sup. Ct. 395, 45 L. Ed. 531. This results from the well-established rule that money cannot be recovered from one who in good faith took it in the due course of business. The reason on which the rule is founded is stated by the New York Court of Appeals in the case of Hatch v. National Bank, 147 N. Y. 184, 41 N. E. 403, as fol lows: "This doctrine goes upon the ground that money has no earmarks; that in general it cannot be identified as chattels may be; and that to permit in every case of the payment of a debt an inquiry as to the source from which the debtor derived the money, and a recovery if shown to have been dishonestly acquired, would disorganize all business operations and entail an amount of risk and uncertainty which no enterprise could bear. The rule is founded upon a sound general policy, as well as upon that principle of justice which determines, as between innocent parties, upon whom the loss should fall under the existing circumstances." The case is really no stronger if we accept Wildman's statement that he delivered the draft to the Bank of Central Arkansas for collection and credit on the note, for even in that event the Bank of Central Arkansas was the agent of Muse for the purpose of collection, and it remained the funds of Muse until it was actually appropriated in the manner directed. Now, the Bank of Central Arkansas, as before stated, when it received the funds from plaintiff, received them as the funds of Muse; and if plaintiff is entitled to recover the funds from Muse, on account of the payment having been wrongfully procured by frauduluent misrepresentations, it can also recover from the Bank of Central Arkansas as Muse's agent. The fact that the bank placed the funds to Muse's credit, even though it thereby constituted itself the debtor of Muse to that extent, did not change the character of the transaction so as to prevent the plaintiff from recovering the funds as long as the same were held by the bank. As soon as the plaintiff gave notice to the bank that the payment of the draft had been wrongfully obtained, it was the duty of the bank to hold the funds as those of the plaintiff, and there was a right of action as for money had and received against the bank from that moment. kansas National Bank v. Martin, 110 Ark. 578, 163 S. W. 795. Ar The proof in this case is that, the day before the cashier of the Bank of Central Arkansas attempted to appropriate the funds to the note held by the Oklahoma State Bank, plaintiff's agent gave notice to the cashier of the Bank of Central Arkansas of Muse's wrongful conduct which procured the payment of the draft. According to the testimony of the cashier, there was enough said to him by the plaintiff's agent to put him upon notice that the funds had been wrongfully procured, and under those circumstances the bank had no right to pay the funds out to another party. Arkansas National Bank v. Martin, supra; Carroll Co. Bank v. Rhodes, 69 Ark. 43, 63 S. W. 68. In other words, under the proof which establishes beyond dispute that the payment of the funds was induced by fraud, the funds remained in fact the property of the plaintiff as the true owner, and, from the time that the Bank of Central Arkansas received informa [2, 3] But if we give full force to those well-settled principles, their operation does not prevent plaintiff from recovering the funds which it was induced by fraud to pay out. It is shown by the evidence that Wildman was the agent of Muse in the transaction concerning the truth of the transac tion and participated in the latter's fraudu- tion, it knowingly held money which belonglent scheme to draw a draft and induce the ed to the plaintiff and not to Muse. The tesplaintiff to part with its funds in payment timony of the cashier is that he made a thereof. Wildman indorsed the draft and pencil memorandum on the note showing the turned it over to the Bank of Central Arkan- payment of the sum of $1,150, and he chargsas, and that bank, according to the testi-ed that sum on Muse's account. He states mony of the cashier, received the money for collection and credit to the account of Muse. In other words, the Bank of Central Arkansas became the agent of Muse for the col that the reason he made the indorsement in pencil was that he did not regard it as final until he was ready to make a remittance of the money and cancel the note. If the those acts of the cashier would have consti- | the same as if the cashier had attempted to tuted an appropriation of the funds to the appropriate funds of any other individual payment of the note, for the funds stood to to the payment of the note and had gone the credit of Muse on the books of the bank, and Muse, through his agent, gave directions to make the appropriation in that way. Daniel v. St. Louis National Bank, 67 Ark. 223, 54 S. W. 214; Nineteenth Ward Bank v. First National Bank of South Weymouth, 184 Mass. 49, 67 N. E. 670; First National Bank of Birmingham v. Gilbert, 123 La. 845, 49 South. 593, 25 L. R. A. (N. S.) 631, 131 Am. St. Rep. 382; note to Virginia-Carolina Chemical Co. v. Steen, 34 L. R. A. (N. S.) 734; 2 Michie on Banks & Banking, p. 1414; Howard v. Walker, 92 Tenn. 452, 21 S. W. 897. But an altogether different question is presented when we consider the transaction in the light of the fact that the funds did not really belong to Muse and ought not to have been appropriated to the payment of the note, for the cashier of the bank had received notice at that time that the funds were the property of the plaintiff, and therefore he had the right at any time before the note was canceled and the funds remitted to the Oklahoma State Bank to withdraw the erroneous appropriation, which he did and thereafter held the funds for the plaintiff as the rightful owner. The case stands far enough to make the pencil indorsement on the note but had decided not to do so and refrained from forwarding the funds. Certainly the bank would not under these circumstances be held to the appropriation of the funds of another person to the payment of this note; and, as we have seen that these funds did in fact belong to the plaintiff and not to Muse, the right of the cashier to withdraw the attempted appropriation for the payment of the note still existed. The Bank of Central Arkansas was first brought into the case as garnishee, but it was made a defendant to the cross-complaint, and the cause was by consent transferred to equity, and the bank, as well as all other parties, was treated as a proper party to the action. We overlook, therefore, the form in which the liability of the bank was originally raised and look to the substance of the controversy as shown by the proof. Our conclusion is that upon those facts the plaintiff was entitled to recover the funds, and that defendant Oklahoma State Bank is not entitled to the funds which had been wrongfully secured from the plaintiff by Muse's fraudulent conduct. The decree is therefore affirmed. WELLS FARGO & CO. v. BENJAMIN. (No. 2774.) quiry at the ticket office about passenger rates covering a trip which he had in contemplation. While on the platform, a box fell from one of the plaintiff in error's loaded (Supreme Court of Texas. Oct. 27, 1915.) 1. NEGLIGENCE 141-INSTRUCTIONS-CON- trucks, and struck him in the right temple, TRIBUTORY NEGLIGENCE-CHARGE. In an action for personal injuries, where the pleadings and evidence raise the issue, the defendant is entitled to have a charge given, grouping the facts upon which he relies to establish contributory negligence; such being a substantial right which should be accorded him. [Ed. Note. For other cases, see Negligence, Cent. Dig. $$ 382-399; Dec. Dig. 141.] 2. NEGLIGENCE from which his injuries are alleged to have resulted. Two grounds of negligence were alleged to be the proximate cause of the injuries complained of: One, that the plaintiff in error negligently loaded said truck so as to permit and cause the box or crate to fall from the 136-INSTRUCTIONS-CON- same; the other, that the plaintiff in error, its agents, servants, and employés, negligently handled and operated and managed said truck in such manner and way as to cause the said box or crate to fall from the truck and strike the plaintiff. TRIBUTORY NEGLIGENCE. In an action for personal injuries sustained by plaintiff by being struck by a box, which fell from a truck of defendant, defendant's instructions on contributory negligence were properly refused, where they failed to include the element of contribution to the injury received. ANTICIPATION [Ed. Note. For other cases, see Negligence, Cent. Dig. §§ 277-353; Dec. Dig. 136.] 3. NEGLIGENCE 136-CONTRIBUTORY NEGLIGENCE QUESTION OF FACT. Where, in an action for personal injuries caused by a box falling from a truck of defendant upon plaintiff at a railway station, reasonable minds might differ under the evidence whether plaintiff anticipated the danger of standing or walking near the loaded truck, the question whether his act in so doing was negligence contributing to the injury was for the jury. The plaintiff in error, being the defendant in the trial court, pleaded in defense contributory negligence on the part of the defendant in error, Benjamin, it alleging that he was guilty of contributory negligence in that he walked or stood by the truck of the plaintiff in error at such close proximity thereto as to permit a crate or box to fall off of the truck upon him; also, it alleged the injury to be the result of an unavoidable accident, in which it alleged that none of its employés were guilty of negligence. It also pleaded assumed risk, but the evidence did not warrant a submission of this issue [Ed. Note.-For other cases, see Negligence, Cent. Dig. §§ 277-353; Dec. Dig. 136.] 4. APPEAL AND ERROR 216-CONTRIBUTORY to the jury, and no complaint is made here NEGLIGENCE-INSTRUCTION-APPROACH TO of the failure to submit such issue. FACTS-DUTY OF DEFENDANT. Where, in an action for personal injuries, the court gave a correct charge upon the issues of contributory negligence, whether it applied the law to the facts as directly as necessary will not be determined, since its failure was a mere error of omission, and it was defendant's duty, if dissatisfied, to present a correct charge more directly applying the law to the facts. [Ed. Note.-For other cases, see Appeal and Error, Dec. Dig. 216; Trial, Cent. Dig. §§ 627, 628.] [1] The verdict and judgment are assailed because the court refused to give plaintiff in error's special charges Nos. 10, 12, and 13. The refusal to give these special charges presents the only questions for our determination, since we approve the conclusions reached by the Court of Civil Appeals upon each of the other assignments. It is contended by the plaintiff in error that it was entitled to have a charge given grouping the Error to Court of Civil Appeals of Sixth facts upon which it relied to establish conSupreme Judicial District. tributory negligence, and that these charges When a correct charge in such a case is pre- For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes was struck, and that a person of ordinary care, | court would have no authority in law to deunder the same circumstances, would not have cide it. walked or stood by it, you will find for the defendant, regardless of whether or not you find that one or more of the employés of the defendant was guilty of negligence in loading the truck or handling it." In this connection, it might be well to call attention to the fact that no evidence was offered tending to prove any special information the defendant in error had as to the danger of being injured if he stood or walked near the truck. There was no evidence to show that he had, in his entire life, known or heard of any one being injured by standing or walking near a loaded truck, on a depot platform, or by allowing a loaded truck This charge fails to require the jury to find that the negligence of the plaintiff, if the jury found that he was negligent, proximately contributed to his injuries. It instructs the jury, in substance, that if the plaintiff was negligent, in the manner set out, to find for the defendant. But to find to pass near him. So far as this record the defendant in error guilty of negligence shows, there was nothing in the experience would not authorize the defeat of his re- of his life that would convey information to covery. If the defendant negligently inflicted him which would act as a warning that he injuries upon him, he should not be permit- should avoid passing near a loaded truck, ted to recover if he himself was guilty of or should avoid permitting one to pass near negligence which proximately contributed to him. The record is silent as to any fact his injuries; but, assuming that he was that would cause him to contemplate injury guilty of negligence, this fact would be no in going near the truck, or in permitting it bar to his recovery if it did not proximately to pass near him. And to the ordinary percontribute to his injuries. If each party to son it might seem entirely safe to pass near the suit was guilty of negligence, then it a loaded truck on a depot platform, or to became a question for the jury to determine, allow one to pass near him, since he should the trial being had before a jury, whose neg- not presume the negligent handling thereof, ligence proximately caused the injury. The or expect an unavoidable accident connected charge requested did not permit the jury to therewith, and especially if it be that his determine this question. It amounted to a own experience, as well as the experience of peremptory charge in favor of the plaintiff in the traveling public, with which he was faerror, to the effect that if the defendant in miliar, has been such as to advise him, that, error was guilty of negligence, then such instead of being attended with danger, such negligence would defeat his recovery wheth-accidents are of rare occurrence, and seldom, er it proximately caused or contributed to if ever within his knowledge, have resulted his injuries or not. This could not be right. in injury. At least, under such circumIt would manifestly be a denial of justice to defeat his recovery on account of his own negligence if in fact it did not contribute to his injuries. It is right and just that one whose wrongful act causes a loss to be suffered should bear that loss, rather than that it should be borne by one who is blameless. And one who was at fault, but whose fault was futile in the result which followed, should not be defeated in favor of the one whose wrong actually produced the injury. [3] There would be no warrant for a charge in which the court withdrew from the jury a question of fact and settled it conclusively as a matter of law, unless the facts were such that all reasonable minds would agree, and none differ on the subject. We hardly think it could be said that, under the facts and circumstances of this case, all reasonable minds would agree that if Benjamin was guilty of negligence by being near the truck, such negligence proximately contributed to his injuries. One's act is only a proximate cause of an injury when it could have been reasonably anticipated by him that some such injury would result from such act. Now, who should determine, the court or the jury, whether it was in contemplation of Benjamin that if he stood near the truck he would probably be injured? Plainly it is a question of fact, to be determined from the evidence introduced, and, being a question of fact, it was a jury question, and the trial stances, it is a question about which reasonable minds might differ as to whether he should have anticipated danger of being injured. And when reasonable minds might differ about it, we are rightfully denied the privilege of declaring the act or omission to be negligence as a matter of law. In such a case the question is one of fact, and is within the peculiar province of the jury to determine. It clearly follows that said special charge was erroneous, and it was not error on the part of the trial court to refuse to give it. H. & T. C. Ry. Co. v. Kelly, 13 Tex. Civ. App. 1, 34 S. W. 809, 46 S. W. 863; G., C. & S. F. Ry. Co. v. Mangham, 29 Tex. Civ. App. 486, 69 S. W. 80; Railway Company v. Rogers, 91 Tex. 52, 40 S. W. 956. The same vice is contained in the plaintiff in error's special charge No. 12. It instructs the jury, in its concluding clause, that: of ordinary care, under the same circumstances, "If you find from the evidence that a person would have avoided walking or standing in such close proximity to the truck that a crate or box falling therefrom would strike him, you will find for the defendant." The plaintiff in error would not be entitled to a verdict in its favor upon this finding. If the jury found in its favor for all it contended, it would only find that the plaintiff was guilty of negligence in standing near the truck. It requires more than this to de |