*1 182 SOUTHWESTERN REPORTER injury, possible, case o£ other it is was intentional a of the is mistaken test therefore, recognized rule, question. in, proper test, under all The and true voluntary action, sunstroke occur under such circumstances instances is that defined act Barry accident; holding in pre- the as not If in to be Case: the which an our and injury, act, though possibility. does cedes not exclude that the an intentional something unforeseen, unexpected, question and un- There has been no decisiоn of the presented produces injury, occurs, by in usual which the this case a. last re court of jurisdiction. accidentally injury in sort If the followed It caused. deter been way reasonably expected by appellate Pennsylvania, in a usual or mined be in courts voluntarily employed, from the that York, means Indiana and New in three different given voluntary act, is, re- not a addition the the decision of the Court (cid:127) Appeals accidentally present of Civil sult effected. the Se (by case: by Casualty Company mancik the Indiana Continental rule followed Supreme Pennsylvania substantially by Superior Court, 1914) the Pa. alty Company announced the that Super. Fidelity Elsey in Southard v. Assur Ct. of Connecticut Court Casu Company, Cas. No. (by Appellate Fed. ance Conn. of New York the subject 13,182, Indiana, the 1915) on the from whose views Court of Gallagher 109 N. E. and express Supreme Fidelity Casualty Company States Court of the United Barry (by Case. York, Appellate the dissent of New the Division of holding unwilling Supreme We are follow the York, 1914) the App. pending Court of New Elsey Cases, are con- Semancik and Supp. 1016, the Div. 148 N. Y. now grounds we the lent to rest the decision Appeals in the Court of of that have stated. Case, In state. the Semancik the form of one, important policy question policy here, is an was the same as the deeply de- its correct company. Elsey concerned issued have been the same In the and, thought, challenges Case, gеneral It careful cision. policy, clause of the insur- phases, difficulty in certain “bodily ing against of its injury sensible through sustained give That it. endeavored means,” provi- that we have accidental was followed ought upon principle be is sound through which sion “sunstroke suffered acci- believing law; and, the conclusion that bodily dental means should deemed a in-' adopted supported, as jury meaning is thus policy.” reached within the In question. decision sunstroke, our both cases was held that caused Ap- judgments of Civil the Court occurring the tíéat sun and under accordingly peals áre Court District present case, like circumstances those in the judgment be en- ordered regarded It is reversed. is not to be as an In accident. amount plaintiff for the Gallagher error Case, for the policy tered under a in the same damages statutory policy, the $225, with company of attorneys’ terms and issued the same as agreed to be reason- fees Elsey Case, in the cоnsidered it was legal amount, interest able sunstroke, determined that such under like suffered court. district date circumstances, accident, is an the insurer was therefore liable. In the opinion Semancik it was said that the ver- dict, plaintiff, only which was for the “could BANK STATE v. COWBOY ux. et BOGART be sustained determination 747.) (No. et al. & TRUST CO. purely court and sunstroke accidental Appeals Amarillo. Texas. (Court of Civil disease,” ignored not the im- Rehearing, On Motion Oct. Rehearing portant Jan. Denied fact sunstroke was insured Further 1916.) policy, view, in our Findings <§==>1071 disease, injury. exposure 1. Ebkoe an as That the ISSUE. voluntary appears ground IMMATERIAL have been a In an action decision; well the construction original note, not rendered given policy, liability renewal, immaterial when there was no it was original if it obtained holder the renewed fore former two months occurring consequence unless sunstroke be- value without notice Elsey preceding In accident. Case maturity, to whether the issue as question rule, was determined under a note more than indorsed the holder immaterial, maturity was so previous after in a announced same court find thereon was failure to trial court’s that not reversible decision, that, injury “where an as the occurs error. acts, pro- direct result intentional Appeal and see other Note.—For [Ed. means,” by accidental which we de- <&wkey; duced Error, Cent. recognize as true This 1071.] cline to rule. injury practically <&wkey;397 Findings — mean that no im- would Requested Trial Findings Made. mediately occurring in the course of an in- requested findingwas to make a The refusal large act could be an accident. A tentional error, find- the trial court another plainly accidents, injuries, are number requested ing fully to befound. the matter stated performance eases, suffered intentional Trial, Note.—For Dig. <&wkey;397.] immediately preceding Whether the acts. act Digests and Key-Numbered Indexes <&wkey;For cases see and KEY-NUMBER same Tes.) BANK. TRUST STATE COWBOY BOGART v. *2 — Discharge Bankruptcy <@=>425— had been Debt character no other homestead when
3.
acquired.
not Scheduled.
bankrupt
appear
cases,
Homestead,
that a
[Ed.
Where it did
Note.—For other
see
<@=>168.]
debt,
Dig.
343;
Dig.
and the creditor had no
scheduled a
§§
Cent.
Dec.
bankruptcy proceedings,
bank-
notice of the
<@=>589 Sufficiency—Parties.
11.Evidence
—
liability
discharged
rupt
debt.
on such
from
was not
a
In an action on a
and to foreclose
trust,
a
deed of
homestead
claimed
the defendants
Bankrupt-
cases,
other
see
Note.—For
[Ed.
judge
part
land,
the trial
Dig.
775;
<§=>
cy, Century Dig.
Deсennial
§
was not bound
believe their statements.
425.]
cases,
Evidence,
.[Ed. Note.—For other
see
Setting
Bankruptcy
—
Dig.
Dig.
Cent.
<§=>395
§
<§=>589.]
Dec.
Decree
4.
Aside Homestead —Parties Bound.
Rehearing.
On Motion fer
party
A
a
bank-
creditor not
debtor’s
proceedings
ruptcy
Appeal
was not bound
the decree
<@=>
<§=>1071
and Error
—Trial
setting
of the federal court
aside
the bank-
to
a
Findings
395 —Failure
to File
—Effect.
rupt and
certain
his
lands as
homestead.
wife
The trial court’s
file
failure to
and
cases,
Bаnkruptcy,
[Ed. Note.—For other
see
conclusions is not cause for which
courts
Dig.
Dig.
judgments
have
<§=>395.]
reversed
Cent.
Dee.
§
when there
ais
state-
facts;
ment of
going
but a
of
law
Property-
5.Bankruptcy
Exempt
<§=>395—
of
supported by
merits
the ease must be
a
Jurisdiction.
corresponding finding of facts.
really
Exempt property
is never
cases,
Appeal
[For
Error,
other
see
and
Cent.
bankruptcy court, nor
of
is the owner divested
Dig.
4234^-4239;
Dig. <@=>1071;Trial,
§§
Dec.
properly urges
his title
his claim
he
Dig.
927-934,
Dig. <@=>395.]
Cent.
§§
Dec.
juris-
exemption,
bankruptcy
as
Appeal
<§=>1071
exempt 13.
<§=>
and Error
diction
—Trial
of it
set it aside as
—
Finding
—
property,
rights
Conclusion
of Law
of
credit-
and as
the lien
Support.
ors with
the
to it
reference
must be determined
court,
Where the trial
state courts.
in an action on a
note and to
a deed
foreclose
of
which
cases,
Bankruptcy,
[Ed. Note.—For other
see
part
the defendants claimed a
homestead
of
Dig.
Dig.
Cent.
Dec.
<©=>395.]
land,
did not find that defendants had aban-
Exemp-
homestead,
merely
<§=>115
doned
testimony
cluded as matter
6.Homestead
Deed—
—Trust
recited their
any finding,
thereon
without
tion.
and con-
Whether land claimed
is ex-
of law
homestead
had abandon-
prior
empt
operation
ed it
must
trust deed
the deed of
existing
trust,
conclusion,
be determined
when
conditions
might
based,
the deed
which it
ment
have been
made the
rendered
accordance therewith
cases,
Homestead,
errone-
[Ed. Note.—For other
see
ous, so
would be reversed.
Dig.
Dig.
186-190;
<§=>
Cent.
§§
Dec.
cases,
Appeal
Note. —bor other
115.]
LEd.
see
and
Error,
Dig.
<@=>
Cent.
423A-4239;
Dig.
§§
Dee.
<§=>181
7. Homestead
—Continuance—Pre-
1071; Trial,
Dig.
927-934, 939;
Cent.
§§
Dec.
sumption
Burden
and
Dig.
Proof.
<@=>395.]
impressed
When
with a
Bankruptcy
<@=>436 Discharge—Debts
—
presumed
homestead character
will be
to so
Scheduled —Burden of Proof.
continue
tinued with
its use as
until
such has been discon-
proving
The burden
that a creditor’s debt
intention not
to use
as a
bankruptcy
scheduled in the debtor’s
home,
one
upon
and
burden of
rests
proceeding, and that the creditor had either stаt-
asserting
the abandonment.
utory or other actual
proceeding,
cases,
Homestead,
other
[Ed. Note.—For
see
upon
bankrupt.
rested
Dig.
351-353;
<@=>181.]
Dig.
Cent.
Dec.
§§
cases,
[Ed.
Bankruptcy,
see
Dig.
<@=>181
840-842,
<@=>
Cent.
§§
Homestead
—Abandonment—Evi-
436.]
dence.
Certain and conclusive evidence
abandon-
Court,
from District
ment,
exemption,
occupied
sale.
Fisher Coun-
with no intention to return and claim the
required
homestead,
ty;
Thomas, Judge.
before
once
B.
Jno.
subjected
such, can be
forcеd
by Cowboy
Action
State Bank & Trust
Company
wife,
A. E.
Homestead,
other
Note.—For
see
which the National Stock Yards Bank of Ft.
Dig. <@=>181.]
Cent.
Worth
Ft. Worth National Bank in-
—
<@=>102
9. Homestead
Abandonment
In-
tervened, seeking judgments against the de-
tention.
Bogart. Judgment
interveners,
fendants
A farm
homestead does not
nothing
the own- and that defendants take
on their
when
lose
character
abandoned
partly
health,
er
of ill
account
the in-
plea
aiipeal.
of homestead. Defendants
Re-
returning
tention of
at
later date.
versed
cause
remanded.
Homestead,
[Ed. Note.—For
Hamilton,
Snyder,
Higgins
Dig. <@=>162.]
of
appellants.
and L. H.
Roby,
McCrea,
Jno.
<@=>168 “Temporary
Homestead
Rent-
Wade,
Rotan,
Bryan,
ing” —
Woods,
Stone
Effect
Constitutional
Provi-
appellees.
Worth, for
sions.
of Ft.
land, including
part
A leasé of
had been used as
for a
term five
HALL,
issues were
Several
J.
years,
position
with the
connection
homesteaders’ dis-
only appeal
suit,
'in
farm
this
but the
of their
another state
involved
a deed of
the execution of
trust on
from that
and wife
R.A.
temporary
stаte,
renting
awas
within
right
denying
them the
to their
Const,
51, providing
any tempo-
out
certain
acres
rary renting
homestead
a homestead
shall not
Key-Numbered Digests
(§^>For
and Indexes
oases see
same
and KEY-NUMBER
182 SOUTH WESTERN REPORTER
<380
interveners, Ft.
Stock Yards National Bank.”
court that the
subject
them and
the above-described
ed,
named
defendants, A. R.
here,
have no homestead
more than
pellants
ment on the note for
ed
lands involved.
ment of which
lows:
substitution for the first above
held the notes
wife claimed 200 аcres
& Trust
as collateral
by
complaint
of the land
them.
sary
Bank. The Et. Worth
sought
for
parties
its
were
Worth intervened
upon
part
Trust
therefore not be
on a
November 2d
10
per
executed about four
which was
ties,
the note.
afterwards
tional
State Bank
deed. The interest of this intervener
was secured
filed a
upon
Bogart
of a deed of
Cowboy
Kent
statement of the
Shultz,
“(10)
[1]
The National Stock Yards Bank of
adjudged, and decreed
per
by
execution,
to find as a fact that a certain indorse
Cowboy
$7,251.
*3
cent,
$1,500 note above mentioned
of the lands
to state the issues
By
a note for
which liens were
county given
a note
plea
Cowboy
Company
defendants take
It further
to all of the liens found in favor of the
Bank,
to the suit and
As stated
cent,
to recover
being
to E. P.
insist that
Company
without
State Bank & Trust
controversy.
May 2,1911,
described
attorneys’
signed by
two
upon
judgment,
was
alleged
acquired by
by
Several
State Bank
interest
for a debt of
The Et. Worth National
two
intervention,
which on
indorsed
trust
following,
approved
State Bank Trust
first
secured
Worth
months
complaint
Trust
Bogart
deed
purchase money
appearing
$1,000
their
secured
also
described
That
hundred acres so claimed
recourse,
$1,500,
pleadings
necessary
lands,
right in
to the Worth
in their
which the deeds of
above,
Shultz,
upon
the court
assignment
lien
to
A.
months
fees.
individuals were
prayed
National Bank
but,
part,
Company.
This note
nothing
their
be a
secure said
subsequent
by
$7,251
pоrtion
by
prayed
the sum of
by
trust
as a homestead out eral
National Bank
on
by
July
foreclosed.
Ft.
the Et. Worth
A.
to the court that the
is made
adjudicated
and W.
the deeds of
or claim
pleadings
the court that said
wife,
in the first-named
praying
since
and indorsed
Appellee
maturity
$5,500.60,
deed of
after the date
certain,
note for
to
Trust
adjudged by
it
rights
to make
renewal
therefore,
for foreclosure
upon
stipulating for
Company
was made
described note
Cowboy
the same
Ethеl
Bogart
there is no
facts.
was,
R.
$7,251,
This
to its
their
represent-
error,
Company.
is as fol-
determin-
all of
Company
by
herein is
National
trust on note
Bank
Cowboy
and the lien creditors with reference to it must be
all the
It will
of and
$7,460,
a full
refus
neces-
order-
R.A.
Bank
made
Bank
trust
after
sued tion
plea
par- 19,
also
also
ma-
was
Na-
ap
the properly urges
Et.
by
fu
&
ington
cited.
land on
never
it aside as
the decree of the federal
no actual
the owner
court has
determined in the
ing
aрpellants
judged
bility upon
bankruptcy proceedings,
ings.
stead. The evidence does not show whether
Bogart
debts,
(Ky.)
appellants
has
pellees
to have
fore immaterial when the Ft. Worth National
after
further
it
merit,
be a
that no
construction of the twelfth
reversible error.
tained the renewal for
by
given
so far as we are able to
it
before its
Bank
inal
complain
tional Bank
wife when
turity,
finding.
chaser of said note for
court
15] The rule is that
By
[4]
[3}
Under
Judgment
[2]
Bogart
is
course
their
fact,
аny
him
fully complied
court set
proceeding,
before
the deed of trust recites that
dated
October
given
Since
accruing,
The third
106 S. W.
to find
really
and the Et. Worth National Bank had
to secure
security
Under
since the
given
set out without contradiction the debt
on this
did not schedule
did or Bankruptcy, p.
indebtedness. The
was entered June
money
has stated
assignment
The deed of trust
denied it. We
executed to secure the
was bankrupt,
Bankruptcy,
of the refusal of
remaining assignments,
could
mаturity.
assail
requested
May 2d,
property.
exempt appellee
to secure the
divested
the deed of trust dated October
maturity.
appellees’
upon
could not be an innocent
jurisdiction
this state of
12, 1912, Bogart
second
wife
his claim for
apart
but no
was advanced
point.
secure,
appellees
not be
therefore the Worth
court,
any
assignment
not rendered
the 200 acres as a home
the action of the court
an.immaterial
state
the renewal.
and the decree
bankruptcy court,
any
fully
with the
that this was a material
was not a
original note,
to him and his wife in
to be found.
of his
The failure
other debt.
proof
assignment appellants
and authorities
claims.
in its seventh
and no witness seems
land as a homestead.
a valuable
see,
value
discharged
bankruptcy proceed
courts.
exempt property
indebtedness
think, upon
of it
the matters which
original
itself recites that
Appellants
finding,
is not bound
the court to
no claim is made
facts
pleadings
exemption.
Brooks v. Eblen
is also
title where he
1913. The fed
request
without notice
to
Et.
1024;
the lien was
setting
party
made of
Bogart
issue is not
First Rem
of the
It is there-
It
considera-
save
appellee’s
rights
it should
discharg
if it
original
1 Love-
is
debtor
nor is
to set
assert
there-
there
court
aside
orig-
trial
and,
true
one,
pur-
fair
find
any
Na-
lia
ad
ap-
ob-
by
Tex.)
y.
BANK & TRUST CO.
BOGART COWBOY STATE
n
181.
clusions of law are neither
foreclosing
19,
ignated by
to the facts rather than
farm of 120
in
in the
1,470
the last-named date
worked for
ing
will
eral
petition
the deed of trust was
pellants
versy
*4
Roy
years
ico was
the husband never
had
claiming any
about
ed with his
three
him;
this, they
bearing upon
health;
existing at the time the
1911, following
farm;
stead is
controversy
that
er owned
cupied
received
their
before the
husband and had their home set aside to
entire
made a
ises for taxes.
months he
deed
deavored to
bin v.
bankruptcy
order
Opposed
[6] Whether or not
September 1,
that
Burge,
El
the
Texas
not
he ever
discussion of the
reoccupy
dispose
for a
the court erred
deed
they
acres,
must
land
lease;
home,
as a homestead
Paso
that
to have land to work
Moseley,
printed
the 1st of
1,470
months later he
the land in
1,470 acres, but describes no
assignments
that the
crop
portion
exempt
unpaid
nor
that
rents
both testified that
and wife used the land
any
were
49 Tex. Civ.
execution of the deed
wages for his father-in-law. That
claimed
sold
they
period
they never
of trust
thеm as
county,
be
bankruptcy,
acres, upon
acres
including
voted in
of these
proceedings
that
conveyed
lease a
homestead interest in
family to
account of the
form for
other homestead since
forced to
determined
1911,
deed
behalf of
of-
purchase money,
the
the
1910. It was shown
at
collected the rents from the
sale was made several
the evidence
always
theory
October
After
their removal
until the husband filed his
S. W.
of five
controversy;
voted in
issue,
Tex.,
farm, his vendee assum-
arriving
portion
sale
contains
of trust
land claimed
El
200 acres and
rules
assignments
for several
farm, and, failing
until October
homestead,
instrument
that
detail.
expiration
intended to abandon
executed
which he
App.
deed is
New
of
and since then had
residing
buy
Paso
of
operation
purchased a small
where he
intended
rendered
instituted
years;
following he
exemption
appellees
abandonment,
supported
purpose.
leased the entire
New
his New Mexico
acres
in
the 120 acres in
they owned no
a consideration
finding of
there
for that
Mexico,
law
Gaar-Scott Co.
county.
dated
adduced. We
husband’s ill
to New Mex-
that in
of
Mexico,
recital dis-
resided and
October
years prior
and moved
there nine
that on
only;
110 S.
of the five
and insist
left
applicable abandonment,
the
to return
trust,
has since
or
land
condition
they
had
that on
they
without Gaar-Scott Co. v.
October
a home-
contro-
a trust
in the
to one
prem-
blank
year;
Creb
1911.
leav-
mov-
days
gen-
nev-
fact has
con-
des- with the
any
nor
ap-
en-
W.
oc- disposed
or
not lose
the intention of
the
timony
the
v.
Hale,
homestead,
subjected
to
cobs,
v. Basham
homestead
the
188. Certain and conclusive evidence of
Rollins v.
claim the
sumed
White v.
296;
when the abandonment is
Campbell,
1023); and the burden of
a fixed
as
of
v.
Stallworth,
acquired.” Oppenheimer
to the
which
also,
ings
they had
Reinstein v.
had
While the conclusion
finding,
versy, but concluded as a matter-of law that
as
and wife when
pre-existing
is a statement
is not made clear
field
be
appellant,
regarded
and fraud
if the
mony upon
by
evidence is sufficient
A[9]
[7,
[10] The
[11]
Richards,
again
Robbins,
a fact
brings