the issue is, was there probable cause to believe that an offense had been committed? The fact that a verdict of not guilty is returned in the former case neither shows nor does it reasonably tend to show that there was no probable cause for the prosecution. Besides, we fail to see how, in a suit to recover damages for the malicious prosecution of a criminal charge, the verdict or judgment upon the trial of the charge should in any manner affect the prosecutor when he is not a party to the suit.

We recognize, as does the court of civil appeals, the conflict of authority upon the question, but we are of the opinion that the weight of authority and the better reason are in favor of the proposition that in such a case the acquittal of the plaintiff of the criminal charge is not evidence tending to show the want of probable cause. We cite some of the recent cases: Stewart v. Sonneborn, 98 U. S. 187, 25 L. Ed. 116; Allen v. Codman, 139 Mass. 139, 29 N. E. 537; Willard v. Holmes, 142 N. Y. 492, 37 N. E. 480; Eastman v. Monastes, 32 Or. 291, 51 Pac. 1095, 67 Am. St. Rep. 531. See also note to Ross v. Hixon (Kan. Sup.) 26 Am. St. Rep. 155 (s. c. 26 Pac. 955, 12 L. R. A. 760).

We answer the question in the affirmative.

NEW YORK LIFE INS. CO. v. ENGLISH. (Supreme Court of Texas. Feb. 23, 1903.)

LIFE INSURANCE-INSTALLMENTS FAILURE TO PAY-JUDGMENT FOR WHOLE AMOUNT. 1. A life policy called for the payment of the insurance in 10 annual installments, commencing with the death of the insured. The company refused to pay the first installment when due. Held that, though action on the policy put the company's liability on the contract in issue, judgment could not be rendered against it for the whole amount, with execution to issue for the various installments as they fell due.

Error to court of civil appeals of Fourth supreme judicial district.

Action by Annie E. English against the New York Life Insurance Company. Judgment of court of civil appeals (70 S. W. 440) amending a judgment in favor of plaintiff, and each party brings error. Reversed.

Denman, Franklin & McGown, for plaintiff in error. F. Vandervoort, for defendant

in error.

BROWN, J. The application of plaintiff in error presents the same questions that were decided by this court in answer to certified questions propounded by the Court of Civil Appeals. 67 S. W. 884, 4 Tex. Ct. Rep. 605. In determining those questions, we construed the law of New York as we understand it in the light of the decisions of the courts of that state, and we see no reason to change our conclusion as to the proper construction of that statute. We shall, there

fore, not further discuss the questions which have heretofore been determined. The facts will be found in the report of our former decision, and we will only state here such as are necessary to the determination of the questions herein discussed.

The New York Life Insurance Company issued a policy of insurance upon the life of William E. English, payable to Annie E. English, his wife, for the sum of $3000, to be paid in 10 annual installments of $300 each; the first payment to become due upon the delivery to the insurance company of proof of death of said William E. English. William E. English died October 19, 1900, and proof of his death was presented to the insurance company December 20, 1900, when demand was made for payment of the first installment of $300, which being refused by the insurance company, this suit was instituted on February 2, 1901, in the district court of Dimmit county, to recover of the insurance company the full amount of the policy, with interest at 6 per cent. per annum, 12 per cent. damages, and attorney's fees. It was alleged that, by reason of the failure and refusal of the insurance company to pay the first installment, the entire sum named in the policy became due. At the trial in the district court the presiding judge instructed the jury to find for the plaintiff, Annie E. English, a verdict against the insurance company for the sum of $3,000 with 6 per cent. interest from the 20th day of December, 1900, 12 per cent. statutory damages, and 10 per cent. attorney's fees. The jury returned a verdict in accordance with the charge, and judgment was entered in conformity to the verdict. Upon appeal to the Court of Civil Appeals, the judgment of the district court was reversed, and a judgment rendered in favor of Annie E. English against the insurance company for $3000, with execution for the first installment of $300, and 6 per cent. interest, 12 per cent. damages, and 10 per cent. attorney's fees upon that amount; and that, at the end of each year from the 20th day of December, 1901, execution should issue in favor of the plaintiff against the insurance company for $300, with interest from that date until paid. The Court of Civil Appeals gave judgment for Annie E. English against the insurance company for the costs of the district court, and against her in favor of the insurance company for the costs of the Court of Civil Appeals. A writ of error was granted in favor of each party.

The insurance company objects to the judgment of the Court of Civil Appeals because it provides for the collection of the installments which were not due at the time this suit was instituted, and we are of the opinion that the objection is well taken, and the judgment of the Court of Civil Appeals must be reversed for that reason. A contract for the payment of money will not support an action until it becomes due and payable ac

cording to its terms. Culbertson v. Cabeen, 29 Tex. 254. To this rule there are some exceptions not necessary to be stated, because the policy sued upon does not come within any one of the exceptions. A failure to pay any one of the installments provided for in the policy sued upon gave plaintiff a right of action for that installment. 1 Enc. Pl. & Pr. 154. We have not been able to find any precedent, nor any principle of law, which would permit suit upon the installments of this policy which had not matured because there had been a failure to pay the first. The honorable Court of Civil Appeals cite, in support of its judgment in this case, Tinsley v. Boykin, 46 Tex. 596. That case does not give support to the judgment rendered in this case. In the case cited there were several notes which held a lien upon one tract of land which was not susceptible of division, and the court held that a suit might be brought upon the first note, it being past due, and, by making the holders of the other notes parties, the lien could be foreclosed upon the land, and the proceeds of the sale equitably distributed in payment of all the notes. judgment in that case rests upon the fact that it was necessary to dispose of the land, and therefore necessary that all of the notes should be foreclosed at the same time. No such necessity is involved in the determination of the rights of the parties in this case.

The

In its opinion upon a motion for rehearing, the honorable Court of Civil Appeals supports the judgment entered by it by the proposition that the failure to pay the first installment entitled the plaintiff to sue upon "the entire policy, in order that a multiplicity of suits might be avoided." The same reasoning would apply to every contract payable by installments, yet we have been unable to find any precedent for such a proceeding. Out of the multiplicity of such contracts the occasion for such action must have occurred frequently, and "it is a strong presumption that that which has never been done cannot, by law, be done at all." Russell v. Men of Devon, 2 Durnford & East, 673. The liability of the insurance company, so far as put in issue by the pleading, would have been determined as to the whole policy if the suit had been instituted for one installment only. Lumber Company v. Buchtel, 101 U. S. 638, 25 L. Ed. 1073; Cromwell v. County of Sac, 94 U. S. 356, 24 L. Ed. 195. It does not follow that, because the liability of the insurance company under the contract was in issue, the entire sum became due.

Since this case will be remanded to the district court for further trial, the other questions presented in the applications for writs of error become immaterial, and will not be discussed.

The evidence as to the attorney's fees is undisputed, but the witnesses had in view the suit for $3,000, and we do not feel authorized to fix the attorney's fees in favor of the defendant in error at that per cent. upon

$300, the sum for which we believe the judgment should have been rendered.

It is therefore ordered that the judgments of the district court and of the Court of Civil Appeals be, and the same are hereby, reversed, and that this cause be remanded to the district court for further trial. It is further ordered that the plaintiff in error recover of the defendant in error the costs of the Court of Civil Appeals and of this court.

LENTZ v. CITY OF DALLAS. (Supreme Court of Texas. Feb. 23, 1903.)

MUNICIPAL CORPORATIONS-REPAIR OF SIDEWALKS-POLICE POWER INJURIES - CHAR

TER PROVISIONS-EVIDENCE-INSTRUCTIONS

-REVERSIBLE ERROR.

1. The police power of a city having entire control of its streets and sidewalks is sufficient to enable it to cause the repair of a hole in a sidewalk.

2. A city's charter gave it complete control of its sidewalks, and provided that the cost of constructing and keeping them in repair should be borne by the property owners in such manner as the council should provide. In another section it provided for a method of enforcing the construction of walks by means of resolutions, notice to the property owner either actual or by publication, assessment of the cost on the property and sale thereunder, and that if, for any reason, the city should be unable to compel the owner to "construct and repair" a sidewalk by fixing a lien on the property, the city should not be liable for "any defect" therein. Held, that neither the method of procedure of the section nor its exemption was meant to apply to the repair of minor defects in a sidewalk, and therefore, conceding that the section should be referred to the taxing power, and that the method authorized was on that account unconstitutional and unenforceable, the exemption clause of the section would not release the city from its liability for injuries resulting from a failure to repair a hole in the walk.

3. In an action against a city for injuries caused by a defective sidewalk, where the petition alleged that a grating where the injury occurred was originally too light, a witness was asked, "Those grates were mighty light to start with?" Held, that the question was leading.

4. The witness, a nonexpert, replied that he would judge the grating was too light, since it did not stand the test of use. Held objectionable, as a conclusion.

5. In a personal injury action against a city, testimony by a physician that injuries apparently trifling in their nature will produce effects that no one can foresee, was objectionable for not being confined to the probable effect of the injuries.

6. In a personal injury action against a city, where there was a large verdict, the admission of evidence as to future results of the injuries, not reasonable to be anticipated, and a refusal to give an instruction restricting the recovery for future results to such as would reasonably and probably result, necessitated reversal.

Error from Court of Civil Appeals of Fourth Supreme Judicial District.

Action by Addie Lentz against the city of Dallas. Judgment in the Court of Civil Appeals (69 S. W. 166) reversing a judgment in favor of plaintiff, and plaintiff brings error. Reversed.

WILLIAMS, J. Plaintiff, a child 10 years of age, stepped into a hole in a grating upon one of the sidewalks in Dallas, and for the injuries sustained recovered a judgment against the city, which on appeal was reversed by the Court of Civil Appeals (69 S. W. 166), and judgment was rendered by that court in favor of the city. This action of the Court of Civil Appeals was based upon a provision of the charter of Dallas, which was construed as exempting the city from the liability asserted against it. The evidence showed that the owner of a building which abutted upon the sidewalk had made an excavation under it, and had inserted the grating to cover the opening in the walk thus made. At the time of the accident, according to testimony adduced for plaintiff, there was a hole in this grating, into which the child stepped; and which had existed so long that the city ought to have known of and remedied it. The charter gave to the city complete control over the streets and sidewalks, and contained these further provisions:

"Sec. 55: The cost of constructing sidewalks and keeping the same in repair, together with the cost of collection, shall be entirely defrayed by the property owners in such manner as the city council may provide, and shall be a perpetual lien on the property in question until paid."

"Sec. 159: Whenever the city council, by resolution or otherwise, orders the construction of any sidewalk it shall specify the kind of sidewalk required to be constructed and the width of same to be so constructed, and thereupon the city engineer shall issue a notice which shall be served upon the owner of such property, if in the city, or if such owner shall be out of the city, such notice shall be published in some newspaper published in the city of Dallas five consecutive days. Such notice shall state the place where such sidewalk is required to be constructed, the kind of sidewalk required to be constructed and the width thereof, and the length of time, which shall not be more than thirty days from the date of the service of such notice, within which such sidewalk is required to be constructed, and that such property owner must proceed to construct the same, or appear before the city council at a regular meeting giving the date of such meeting, and show cause why the same should not be constructed; and if such property owner shall not construct the same within the time required by the city council in the order or resolution of the city council requiring the same to be constructed, or shall not be excused from constructing the same by the city council, the city council shall advertise for bids for the construction of such sidewalk, and shall let a contract

therefor to the lowest responsible bidder, in the discretion of the council; such contract may be for any length or amount of sidewalk. As soon as practicable after the letting of such contract the city engineer shall furnish the city council a statement showing the name of the owners of the property abutting on the sidewalk so constructed, if known, if not known, shall so state, and a description of the property owned by such owners and the cost of the sidewalk immediately in front of the property so improved, and such cost shall be levied and assessed by the city council by ordinance against the property according to such statement by the city engineer, and said tax shall be a lien against such property from the date of the letting of such contract. Such ordinance shall state the amount of such tax against such respective lots or subdivisions of land, and the time when the same shall become due and delinquent; and if the same shall not be paid when due, the city collector shall proceed, as soon as practicable, to advertise and sell such property for the payment of such taxes, provided in cases of sale of such property for ad valorem taxes: provided, that it shall not be necessary that such sale shall take place at the same time as sales of property for ad valorem taxes. In the event that because the same adjoins a homestead, or for any other reason, the city is unable to lawfully compel the owner to construct and repair a sidewalk by fixing a lien on his property for the cost, the city of Dallas shall never be liable for damages to any person or property by reason of any defect in any such sidewalk not immediately occasioned by the direct act of the city, or of some officer for whose acts the city is responsible at law; and in all cases the property owner on whose property any sidewalk abuts, shall be under the duty to the public, as well as to the city, to keep the said sidewalk in repair, and shall be primarily liable to any and all persons for any injuries whatever occasioned to them or their property by reason of any such defect occurring by reason of the neglect or omission of such property owner to repair such sidewalk and to keep the same in repair, or by reason of his unlawful or wrongful act. In the event of a judgment against the city in all such cases where the property owner is made liable for damages by the provisions of this section, the city shall be entitled to a recovery over against any such property owner held to be primarily liable for such damages under the provisions aforesaid."

Sp. Laws 1899, c. 8.

The defense sustained by the Court of Civil Appeals is that, under the authority of Hutcheson v. Storrie, 92 Tex. 685, 51 S. W. 848, 45 L. R. A. 289, 71 Am. St. Rep. 884, and Norwood v. Baker, 172 U. S. 269, 19 Sup. Ct. 187, 43 L. Ed. 443, those parts of section 159 which prescribe a mode of con-

structing and repairing sidewalks and of charging the cost thereof against the abutting property are unconstitutional and void; that, therefore, "the city is unable to lawfully compel the owner to construct and repair the sidewalk by fixing a lien upon his property for the cost," and hence is exempted by the latter part of the article from liability for the injury to plaintiff. In the two cases referred to, assessments for improvement of streets were involved; assessments which could only be lawfully imposed in the exercise of the taxing power, exerted in subordination to the fundamental principles which limit the exercise of that power. The principle held to be disregarded in those cases was that which restricts the special burden to be imposed upon the adjacent property to an amount not in excess of the benefit resulting specially to such property from the improvement. Whether or not, if the principle of those decisions were applied to the provision quoted, it would, on its face, appear to be unconstitutional, is a question which this case, as we view it, does not present. Besides the taxing power, under which local assessments are levied, the city was invested with the police power, which was ample to have enabled it to have caused the removal of the dangerous defect which existed in this sidewalk. Says Judge Cooley: "The cases of assessments for the construction of walks by the side of the streets in cities and other populous places are more distinctly referable to the power of police. These footwalks are not only required, as a rule, to be put and kept in proper condition for use by the adjacent proprietors, but it is quite customary to confer by the municipal charters full authority upon the municipalities to order the walks of a kind and quality by them prescribed to be constructed by the owners of adjacent lots at their own expense, within a time limited by the order for the purpose, and in case of their failure so to construct them to provide that it shall be done by the public authorities, and the cost collected from such owners, or made a lien upon their property. When this is the law, the duty must be looked upon as being enjoined as a regulation of police, because of the peculiar interest such owners have in the walks, and because their situation gives them peculiar fitness and ability for performing, with promptness and convenience, the duty of putting them in proper state, and of afterwards keeping them in a condition suitable for use. Upon these grounds the authority to establish such regulations has been supported with little dissent. No doubt this requirement is sometimes, in a measure, oppressive, since the actual cost may exceed the pecuniary advantages to the lot owner; but this, in case of police regulations, is never a conclusive objection."

Another question which we need not determine is whether or not article 159 is a

legitimate exercise of police power, or is to be referred to the taxing power. For, conceding, for the purpose of argument, that the latter view of it is the correct one, the general power given to the city of Dallas over its sidewalks was sufficient to enable it to prevent or remedy such conditions as were shown to exist in this case. Macon v. Patty, 57 Miss. 407, 34 Am. Rep. 451; Greensburg v. Young, 53 Pa. 280; Franklin v. Mayberry, 6 Humph. 368, 44 Am. Dec. 315; Washington v. Nashville, 1 Swan. 177; Goddard v. Petitioner, 16 Pick. 504; Woodbridge v. Detroit, 8 Mich. 309. These authorities, as well as the quotation from Cooley, go much further than it is necessary for us to go in this case. It was not at all necessary for the city to resort to the power given in cited provisions of the charter in order to have filled a hole in a sidewalk already constructed. Those provisions evidently contemplate construction and repairs of such magnitude as to make proper the adoption of the method thus provided for the doing of the work and fixing and defraying the expense, and are wholly inapplicable to such an inconsiderable work as the repairing of this grating; and since, in order to make such a repair, the city would not be required to resort to the proceeding provided in section 159, it follows, we think, that the provision giving immunity has no application. While the language in which the exemption is couched is that the city, in the event supposed, shall not be liable because of "any defect," the context makes it evident that the defects meant are such as are intended to be prevented by the exercise of the power just granted, and which exist because such power proves futile. The exemption has no application when the machinery, because of the failure of which such exemption is granted, is not to be relied on. It is unreasonable to suppose that the legislature proposed that the city should resort to the cumbrous method devised for the construction and repair of sidewalks whenever it should become necessary to fill a hole therein. For such conditions the police power was entirely adequate, and there was no purpose to exempt the city from liability for damages resulting from a negligent failure to exercise that power, when the exercise of it, and not the proceedings provided in section 159, were called for. We are therefore of the opinion that the Court of Civil Appeals erred in sustaining this defense; and this makes it necessary that we examine the other grounds for reversal urged by the city before that court. We shall notice only those assignments which are held to present reversible error, and those upon which an expression may aid in another trial.

The petition alleged the defects in the grating to be that the iron was originally too light and insufficient to afford protection to passers, and that the frames and bars of it were broken. Plaintiff was allowed to ask a witness who showed no qualification to give an opinion this question, "Those grates were

mighty light to start with?" to which the witness answered, "I am not an iron man, but I would judge they were rather light for that purpose, as they were broken out, and they did not stand the test they were used for." The question was plainly leading, and the answer expressed a mere conclusion of the witness, and a conclusion which the jury could draw as well as the witness. The objections made to them should have been sustained. The charge of the court submitted to the jury whether the bars of the grating were "broken or misplaced," and the point is urged that, the petition having specifically alleged only that the parts were broken, a recovery because they were misplaced should not have been allowed. It is difficult to determine from the way in which the evidence is stated whether or not there was anything material in the part of the instruction assailed. Plaintiff's evidence tended to show that the bars were broken, and there is much other evidence as to the condition of the grating, but whether there was any to which the word "misplaced" would have applied so as to make its use material, we do not clearly see from the evidence. As this may be easily remedied, there is no need for further comment; and it is likewise unnecessary that we determine whether or not, in either of the matters just discussed, there is reversible error. The physician who treated plaintiff, when giving his opinion as to the nature, extent, and duration of the injuries, was asked: "Is it not a fact that in medicine and surgery injuries apparently trifling in their nature, like broken ribs, etc., will produce effects in themselves that no one can foresee?" and answered in the affirmative. The objection to this-that it was not confined to the probable effects of the injuriesshould have been sustained. Both question and answer assumed to speak of results not reasonably to be anticipated. G., C. & S. F. Ry. Co. v. Harriett, 80 Tex. 83, 15 S. W. 556. The court should also have given the charge requested by defendant restricting plaintiff's recovery for future results of the injuries to such as would reasonably and probably result. Both of these rulings affect the amount of the recovery, which is large, and necessisate a reversal.

Reversed and remanded.

NORMAN v. THOMPSON et al. (Supreme Court of Texas. Feb. 16, 1903.) LIQUORS-LOCAL OPTION-ELECTION-LEGAL

ITY-NOTICE-CONTEST.

1. Rev. St. art. 3397, provides that, after the result of an election under the liquor law has been declared, the election may be contested, and that if it appear that it was illegally or fraudulently conducted, or such a number of voters were denied the privilege of voting as might have changed the result, or the true result of the election cannot be ascertained, auother election shall be ordered. Held, that the word "election" plainly means the things done

on the day of election, and not acts done prior thereto, and a failure to post one of the required notices of an election is no ground for a contest.

2. On the contest of an election under the liquor law, the question whether the decision of the court of civil appeals was in conflict with a decision of the court of criminal appeals was immaterial, as a contest of election concludes no question which may be involved in a prosecution for the violation of the law after it has been declared in force.

Certified questions from court of civil appeals, Fifth supreme judicial district.

Petition of W. F. Norman and others to contest an election held under the liquor law; R. D. Johnson, contestee. From a judgment for the contestee, contestants appealed to the court of civil appeals, which affirmed the judgment (72 S. W. 64), and which certifies questions.

Looney & Clark, for appellants. C. E. Meade, for appellee.

BROWN, J. Certified questions from the court of civil appeals for the Fifth supreme judicial district, as follows:

"An election was held throughout Hunt county on May 3, 1902, to determine whether or not the sale of intoxicating liquor should be prohibited in said county. The election resulted in favor of prohibition. On May 29, 1902, W. F. Norman, J. A. Brown, and Jim Beckham filed in the district court of Hunt county their petition to contest said election; R. D. Thompson, the county judge of the county, being made contestee. It was alleged in the petition that the contestants were resident citizens, qualified voters, and property owners of said county, and that they were engaged in business in said county as retail liquor dealers, and had procured licenses to carry on such business, as required by law, which licenses had not expired. As ground of contest, it was charged that only four copies of the order of election were posted for twelve days prior to the day of election. The contestee replied that, if such was the case, the fact did not affect the result of the election, and that the voters of the county had actual notice of the election, and participated therein. The contestants demurred to this plea of the contestee on the ground that the posting of statutory notices for the time and in the manner required by law is a jurisdictional fact, without which, under our law, no legal local option or prohibition election can be held. The demurrer was overruled, and exception duly reserved. The case was tried before the court without a jury, and judgment was rendered in favor of the contestee, from which judgment the contestants have prosecuted an appeal to this court. There is no statement of facts in the record. At the request of the parties, the trial judge filed conclusions of fact, wherein he found that four copies of the order for the election were posted for more than twelve days prior to the day of election, and that one copy thereof was posted