utilize the electric current for lighting pur

INTERNATIONAL ELECTRIC CO. v. SAN- poses, power for operating fans, and turning

CHEZ et al. (No. 6042.)

(Court of Civil Appeals of Texas. San Antonio.
May 22, 1918. Rehearing Denied
June 12, 1918.)

1. ELECTRICITY 19(5)-PERSONAL INJURY-
PROXIMATE CAUSE EVIDENCE.
Evidence held to show that act of defendant
electric company, in sending a heavy current
over a wire known to be uninsulated and with-
in easy reach, was the proximate cause of the
death of plaintiffs' intestate.

ice cream freezers, etc.; that an electric wire the building occupied by said drug company taking current furnished by appellant into

became damaged by fire and the insulation of the wire was burned off, thereby exposing the live wire and rendering same dangerous to persons on or about the premises, and that some of the supports were burned away, thereby allowing the wire to sag and hang so low as to be within the ordinary reach of a standing person; that appellant knew of

2. ELECTRICITY 19(10)-INJURIES-KNOWL- these conditions and of the danger incident EDGE OF DEFECTS. Where an electric company knew that the insulation was burned off of a wire on the premises of a user, beyond its meter, and sent à current over the same of such voltage as to cause death to a person coming in contact therewith, the jury was authorized to find that it was negligent.

thereto; that notwithstanding this knowledge the appellant failed to inspect, repair, and replace the wire, but continued to furnish current thereon for use in the building; that the appliances and equipment of appellant permitted the electrical current so furnished

3. ELECTRICITY 16(7)-PERSONAL INJURY-over said wire to be of a dangerous voltage PROXIMATE CAUSE-INTERVENING EFFICIENT CAUSE.

The fact that the owners of the building knew of the uninsulated condition of a wire and failed to remedy the defect cannot be held such an intervening cause of the death of one coming in contact therewith as to require a finding that the negligent act of the electric company in sending a high voltage current over the wire after knowledge of its condition was too remote.

4. ELECTRICITY 19(12)-PERSONAL INJURY -CONTRIBUTORY NEGLIGENCE.

Where deceased had no knowledge of the existence of an uninsulated wire and stepped upon a parapet in a building, which act involved no danger had the wire not been there, and he was not then trespassing to any appreciable invasion of the rights of any other person, he was not guilty of contributory negligence as a matter of law.

Appeal from District Court, Maverick County; Joseph Jones, Judge.

Suit by Francisca Bernal de Sanchez and others against the International Electric Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

Sanford & Wright, of Eagle Pass, for appellant. David E. Hume, of Eagle Pass, and Lewright & Douglas, of San Antonio, for appellees.

and in excess of that reasonably necessary for light and power requirements of the drug company; that the deceased, Pedro Sanchez, went upon the premises of said drug company for a lawful errand, to wit, to purchase some flavoring extracts from the drug company, and while there and so engaged he came in contact with this exposed electric wire and was killed by the shock.

The defendant pleaded the general denial, and specially pleaded in substance, that the electrical equipment on said premises, and at the place where the deceased lost his life, was installed, owned, and controlled by the drug company; that the ownership, control, and dominion of the equipment of appellant extended to the meter at the edge of the premises; that all this equipment, including the place where deceased came in contact with the wire, was beyond the meter; that the deceased was guilty of contributory negligence, in that at the place where he received his injury the wire was elevated to the extent that it was beyond the reach of a man standing on the ground or passageway; that a person on said premises pursuing a lawful errand, such as plaintiffs alleged, would not come in contact with the wire; that deceased exceeded the scope of any invitation he may have had and elevated himself above the ground or MOURSUND, J. The appellees, surviving passageway by stepping upon a parapet wall widow and children of Pedro Sanchez, de- (which wall was constructed and used for no ceased, filed this suit in the district court other purpose than to protect the sides of a against International Electric Company, ap- stairway leading into the basement, and no pellant, to recover damages resulting from one had ever used or been permitted to use the death of Pedro Sanchez, alleging in sub- the same for the purpose of standing thereon, stance that appellant was engaged in gener- and any one so doing assumed the attitude of ating electric current for light and power a trespasser), or that deceased elevated himpurposes in the city of Eagle Pass, and in self in some other manner unknown to defurnishing such current to the residents of fendant, and in so doing exceeded the scope the city; that one of the customers was the of any invitation he may have had; that it Lyman Drug Company, engaged in the busi- was only after the deceased had elevated ness of selling, among other things, ice cream himself as herein alleged that he came in and soda water; that the premises occupied contact with the wire; and that in so doing by said drug company were wired so as to he was guilty of contributory negligence, con

The parapet wall was low, only 12 inches above the level of the landing at the rear door of the drug store, and the top step of the adjacent basement stairway and only 19 inches above the ground. The danger was so apparent that employés working in the drug

tributing as a proximate cause of his injury. | stairways leading into the basement and to The case was submitted on special issues, the upper story were also in this region. in answer to which the jury found that defendant had notice before the day of the death of Sanchez that the wire with which he came in contact and which caused his death was uninsulated; that defendant was negligent in permitting electricity to be transmitted over the uninsulated wire; that said neg-store had tied the wire higher, using a string ligence was the proximate cause of the death of Sanchez; that the wire was not a part of the electric supply system of defendant; that Sanchez was not guilty of contributory negligence in getting in contact with the wire; that the wire was high enough above the ground and passageways to be perceptibly beyond the reach of a man of the height of deceased while passing under the wire; that deceased stepped upon the parapet wall and came in contact with the uninsulated wire on account of elevating himself in such manner; and that Ed. Watkins installed the wiring for J. B. White at the place where deceased was killed. The damages were assessed at $4,000, apportioned among the several plaintiffs. The court entered judgment upon such verdict, awarding to each plaintiff the sum awarded in the verdict.

[1] By the first assignment it is contended that the evidence does not support the finding that the negligence of defendant was the proximate cause of Sanchez's death. As the jury by its verdict established as a fact that the wire was high enough above the ground to be perceptibly beyond the reach of a man of deceased's height, and that deceased stepped upon the parapet wall and came in contact with the uninsulated wire on account of doing so, appellant's theory is that such facts as a matter of law establish that any failure to repair the wire or negligence in sending electric current through the same could not have been the proximate cause of the injury, because defendant could not have foreseen that a person would probably be injured thereby under circumstances similar to those surrounding deceased at the time. Of course the facts found by the jury must be taken as true, and the question is whether the evidence as a whole, taking such facts as true, fails to support the finding that the negligence of defendant was the proximate cause of the injury. The determination of the question involves the consideration of all the evidence bearing on the question, and the weight to be attached thereto, and, as suggested by our Supreme Court, the question is generally one for the jury. The two facts established by the verdict of the jury cannot be given conclusive force, for they leave undetermined the issue whether it should have been foreseen as probable that some person would stand upon the parapet and come in contact with the wire. The accident occurred in a much-used passageway; the parapet wall was in this passageway, with an ice crusher upon it, and a sink for general washing purposes in close proximity, and

which did not hold it long, and it again sagged. Mr. White testified that he stood on the parapet dozens of times. This would show that it was easy to get on the parapet, but the way in which it was constructed and its dimensions show that persons would probably step upon it. In fact, White referred to it as a little walk, but quickly corrected this by saying it was not a walk and he did not know the technical name for it. The evidence shows that such a parapet, at a place much frequented, would very probably be used, either for the purpose of seeing at a distance, or idly with no particular purpose in view. The wire was sagging and the insulation had burned off, and reasonable prudence would have dictated to appellant that in view of the little parapet there was great danger of some one coming in contact with the wire. In view of all the testimony, we conclude the jury was authorized to find that the negligence of appellant was the proximate cause of the death of Sanchez, notwithstanding the fact that he stepped upon the parapet.

[2, 3] Appellant makes the following contention under the second, third, and fourth assignments:

"It appearing from the undisputed evidence as well as from the special verdict that the electrical equipment at the place where the deand was owned and controlled by the Lyman ceased received the shock had been installed Drug Company, and, notwithstanding any knowledge appellant may have had of the fact that the insulation had been burned off the to repair the wire and could not be held guilty wire at this place, the appellant owed no duty of negligence in delivering current through the meter to this equipment; it appearing from the evidence that all the facts and circumstancand to J. B. White, the owner thereof." es were known to the Lyman Drug Company

As the appellant company knew the insulation had been burned off of the wire, and sent a current over the same of such voltage as to cause death to a person coming in contact therewith, the jury was authorized to find that it was negligent. Curtis on Electricity, § 417; Smith v. Middlesboro, 164 Ky. 46, 174 S. W. 773, Ann. Cas. 1917A, 1164; Hofman v. Leavenworth, 91 Kan. 450, 138 Pac. 632, 50 L. R. A. (N. S.) 574. The fact that the owners of the building knew of the condition of the wire and failed to remedy the defect cannot be held to be such an intervening cause of the death of Sanchez as would require a finding that the negligent act of appellant was too remote. In view of appellant's knowledge of the condition of the wire it was negligent in sending a high voltage

current over it, and there was an unbroken | upon the parapet. The theory appears to be connection between such negligence and the death of Sanchez.

FARMERS' & MERCHANTS' STATE BANK
OF BALLINGER v. CAMERON et al.

(No. 842.)

(Court of Civil Appeals of Texas

El Paso.

May 9, 1918. Rehearing Denied
June 6, 1918.)

1. USURY 137- STATUTORY PENALTIES-
"PAYMENT."

Under Vernon's Sayles' Ann. Civ. St. 1914, art. 4982, providing for the recovery of double the amount of usurious interest paid, taking by creditor under sale by virtue of a mortgage in satisfaction of the usurious portion of the debt was a payment, entitling mortgagor to recover. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Payment.]

2. APPEAL AND ERROR 690(2) -MATTERS REVIEWABLE-ASSIGNMENTS OF ERROR. Assignments of error in admitting evidence cannot be considered where the bills of exceptions do not disclose what the evidence objected

to was.

3. MORTGAGES 292(3)-PURCHASE OF MORTGAGED PROPERTY-ASSUMPTION OF DEBTPERSONAL LIABILITY.

Where creditor under a trust deed bought at a trustee's sale, and for the purpose of protecting its title, purchased a prior mortgage which had been assumed by the grantcr in the trust deed, it is entitled to be subrogated to the senior lien, but the land is the primary fund for its payment, and such mortgage must be first foreclosed, after which it may have judgment for any deficiency.

That said note ($10,530) was made up of money loaned as hereafter stated, and usurious interest thereon carried forward into it from previous renewal notes, and interest carried into them in advance from date of maturity. Here follows a complete description and history of each note, overdrafts, etc., giving its date and amount, the amount of usury in each note, overdraft, etc., showing how the totals make up the $10,530 note. And further allege that at the time of the execution of the latter note there was in fact due only $5,007.35, and that the balance was usurious. Appellees represent that by the sale of said property, on April 6, 1915, the appellants collected from the appellees and D. A. Cameron, Jr., $5,007.35, principal money actually due, and the further sum of $3,742.65, usurious interest, to wit, $7,485.30; and, in the alternative, if the court should hold that they were not entitled to recover said penalties, sought to recover the difference between the amount of said bid, $8,750, and the amount of actual indebtedness due, to wit, said sum of $3,742.65. The defendant pleaded general demurrer and numerous special exceptions, and by cross-action asked for judgment for note, and interest which was prior lien upon certain tracts of the land sold and purchased by appellants. By many assignments and propositions appellant charges error in overruling its general demurrer and special exceptions to

Appeal from District Court, Runnels Coun- plaintiff's petitions, original and supplementy; Jno. W. Goodwin, Judge.

Action by S. M. Cameron and others against the Farmers' & Merchants' State Bank of Ballinger. Judgment for plaintiffs, and defendant appeals. Affirmed.

Jno. I. Guion and M. C. Smith, both of Ballinger, for appellant. Snodgrass, Dibrell & Snodgrass, of Coleman, and R. B. Truly, of Ballinger, for appellees.

tal. The petition clearly sets, up the facts which constitute usurious interest, and the amount of such interest, and the amount of unpaid principal of other notes and overdrafts incorporated in the latter note.

[1] The question then arises, Does the petition charge a payment? The statute (ar、 ticle 4982, Vernon's Sayles'), provides for a recovery of double the amount of usurious interest paid, and no penalty is fixed for a HARPER, C. J. This is a suit to recover charge of such. Clayton v. Ingram, 107 S. W. 880. The allegation is that, the appelthe statutory penalty for collecting usurious interest, based upon the following allegalant having a mortgage upon certain lands to tions: D. A. Cameron, Sr., and D. A. Cam-secure the payment of the $10,530 note, causeron, Jr., and S. M. Cameron executed their ed the trustee to make sale thereof in acjoint note for $10,530, with 10 per cent. in- cordance with the provisions of the mortgage, terest, payable to the Farmers' & Merchants' and of law, and that, appellants being the State Bank of Ballinger, dated March 31, highest bidder, having bid $8,750, their bid 1914, payable January 1, 1915, secured by was accepted, and deed to the land executed deed of trust of even date, upon certain lands, by the trustee to it, and the amount credited containing provisions for sale in case of fail- upon the note, and that this constituted payure to pay the note and interest; that there- ment of usurious interest to the amount of after the note became due and unpaid, and the difference between $5,007.35 lawfully due defendant bank requested the trustee to sell and the amount of the bid. the lands. After advertisement, the trustee sold for the purpose of paying the balance due, which was alleged to be the full amount of the note, less credits to the amount of $1,106.60; that all of the lands were sold and bid in by the defendant bank for $8,750, being the highest bid, and deed was executed. Said amount was credited upon the note.

Appellant contends that, this being an involuntary payment, by reason of the fact that it was a sale under mortgage, the debtor may not thereafter elect to set up that the proceeds of the sale was applied to the usurious portion of the debt, in order to place himself in a position to sue for the penalty, because the title passes by virtue of the val

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

a deed of trust upon them to the British American Mortgage Company for $3,000. In January, 1910, said Terry and wife conveyed said tracts to appellees, who assumed the indebtedness. In July, 1912, appellees entered into a written agreement for the extension of time of payment of the note to the mortgage company. The appellant, after the sale by the trustee, and deed executed to it to the lands, for the purpose of protecting its title, purchased the entire indebtedness of the mortgage company, and the latter thereupon assigned to appellant the note, etc., and its mortgage. Upon this showing, appellant in cross-action, asked personal judgment against appellees for the amount.

id portion of the debt, and not the invalid | of certain of the tracts of land sold by the portion, and that the bid is equivalent to no trustee above noted, April 8, 1908, executed bid at all, to the extent of the usury. It is true that purchaser obtains title by virtue of the valid portion of the debt, and to maintain a suit to set aside the sale the debtor must have tendered the amount of the valid portion of the debt (Hemphill v. Watson, 60 Tex. 679), but we have no such case here, but, to the contrary, have a sale of $15,000 worth of property purchased at trustee's sale by the creditor for a valid debt of only $5,007.35, with a credit of the amount of the bid upon the note, which constitutes a taking of property for the usurious portion of the note; and it seems to us that, if, where property is voluntarily taken in payment of a usurious debt, it is the basis for a suit for the statutory penalty (Stewart v. Briggs, 190 S. W. 221), surely the statute must apply to a taking under sale by virtue of a mortgage in satisfaction of the usurious portion of the debt. For had the trustee been instructed to sell sufficient land to satisfy the lawful portion of the note, evidently a much less acreage should have been sold.

[2] Certain assignments charge error in admitting evidence over the objection of appellant; are overruled because the bills of exceptions do not disclose what the evidence objected to was.

The twentieth, twenty-first, and twentysecond urge that the court should have rendered judgment for it upon the cross-action as an offset.

Under these facts, the appellants would be entitled to be subrogated to the rights of the senior lien. Bank v. Walker, 187 S. W. 725; K. & Bro. v. Willard, 191 S. W. 195. But under the case of Harris v. Masterson, 91 Tex. 171, 41 S. W. 482, the lands in question became a primary fund for the debt, his lien, and if, by sale, the lands do not and appellant's remedy is to first foreclose satisfy the claim evidenced by the senior mortgage, it may have a personal judgment for the unsatisfied portion of the debt. Affirmed.

WALTHALL, J., did not sit, being absent on committee of judges assisting the Su

[3] R. A. Terry and wife, being the owner preme Court.