author: RANDOLPH, J.

text:
    ALEXANDER FILM CO. v. LIGON et al.
    No. 3553.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 18, 1931.
    Rehearing Denied March 18, 1931.

      Nordyke & Pardue, of Lubbock, for appellant.
    Alfred M. Scott, of Lubbock, for appellees.
   RANDOLPH, J.

Appellant brought this suit in the county court of Lubbock county against H. L. Ligón, L. B. Rankin, and B. F. Foster for the sum of $455.40 based upon a written contract.

The defendant H. L. Ligón filed his plea in abatement and answer. On hearing of the plea in abatement, the court -rendered judgment sustaining same and dismissing the plaintiff’s suit and also dismissing defendant H. L. Ligon’s cross-action against his code-fendants. From this judgment the plaintiff film company has appealed.

The question presented by the appeal is: The plaintiff being a foreign corporation and not having obtained from the proper authorities of the state of Texas a permit to transact its business in this statq, was the transaction sued on intrastate or interstate business? If the contract involved in this litigation was interstate business, the action of the court in sustaining the defendant Lig-on’s plea in abatement was erroneous.

The written contract sued on was dated at Lubbock, Tex., 2 — 18—1929 and which was signed by H. L. Ligón, provides for film advertising, and authorizes the plaintiff to display catalog films for him for a period of fifty-two weeks in two picture shows in Lubbock, Tex., and the film company agrees to produce one N. C. full screen trailer (each ten words or less), with all of the necessary prints of same and to ship to the theaters in the following manner: Two shipments per month to the Palace Theater. Receipt of $36 is acknowledged and the advertiser agrees to pay the balance in installments of $36 per month for eleven months. The first installment to be due in thirty days after the first shipment of service from the film company’s studio. There are provisions for additional service and a reservation of the right to display national or sectional service. Also providing if any payment shall be delinquent for more than one month, all remaining installments shall become due and payable and' the advertiser agrees to pay collection charges, including attorney’s fees. Delinquent payments to draw the legal rate of interest.

Printed on the back of this contract is the following:

“In order that full benefits may be received from this movie playlet service, subscribers are advised to watch carefully the screening of same and to notify theater manager of any irregularity. Also see that all films are returned promptly, parcel post, by the theater at the end of their rental periods. Otherwise shipments can not be made according to schedule.”

It will be observed that while the appellant had an agent in Lubbock county, who negotiated the contracts between the parties, it did not have an office for the transaction of its business in this state. Its domicile was in the state of Colorado, where it was incorporated.

The fact that the record does not include an actual sale of a definite piece of property is not conclusive of whether or not it was transacting intrastate commerce and does not change the rule to be applied to such transactions. The selling of property and the authority to sell carries with it the power to mortgage or lease.

The Supreme Court of Texas, in the case of Red River National Bank v. Ferguson, 109 Tex. 287, 206 S. W. 928, in discussing the powers of the wife to sell her separate property without the joinder of her husband, holds that such power to convey includes necessarily the power to mortgage. If that be true, and such powers of sale includes the power to mortgage, and the plaintiff having such power to sell property or merchandise in the transaction of its business, it necessarily follows that it has the lesser power to lease such property. Hence, the fact that an outright sale was not contemplated by the parties, but that the property was leased for a term, does not and cannot give the transaction the status of intrastate business. Interstate business has a wider definition that a mere sale of physical property, and whether or not a given transaction is a sale and delivery of property is not the sole test hy which the transaction is judged.

In the case at bar, as above stated, the domicile of the plaintiff was in the state of Colorado; the manufacturing of the films leased to Ligón occurred in that state; the contract before it could be binding had to have the approval of the plaintiff corporation) through its officers, and the contract expressly provides that the films, after the service1, was rendered in Lubbock, would be returned to the home office in the state of Colorado.

The appellee contends that the contract was essentially one for continued local personal service through Texas labor and with Texas facilities. It is true that the record shows that the plaintiff corporation had entered into another contract with the picture,' shows to run the advertising films, advertising the business of defendant Ligón. This contention is answered by the Commission of Appeals with the express approval of the Supreme Court in the case of Southwest General Electric Co. v. Nunn Electric Company, 283 S. W. 781. In that case the contract between the appellant and appellee contained the following provisions:

“The agent shall sell or otherwise distribute lamps from the manufacturer’s store only in packages or wrappers supplied by the manufacturer, which among other things, will contain a notice substantially in the following form: ‘The lamp (s) contained herein is (are) manufactured by the Edison Lamp Works of the General Electric Company, which sells its Mazda and Gem Lamps exclusively through its own branches and agents direct to the consumer.’ ”

The further provision as follows:

“(a) To distribute lamps from the manufacturer’s store in the custody of the agent to those agents holding agency appointments from the manufacturer whom this agent may be given by the manufacturer written authority to serve; (to) to sell to any consumer, within domestic territory ⅞ * ⅜ lamps for immediate delivery froni said store in broken package quantities, * ⅜ * and to sell from said store to any purchaser under written contract with the manufacturer for the Edison brand of lamps on the manufacturer’s standard form, and to whom the agent may be given by the manufacturer written authority to deliver lamps at the prices set forth in said contract.”

In passing upon this question, the Commission of Appeals says:

“But the question remains, Does the incorporation in the contract of the provisions above quoted compel a different conclusion in this case; that is, that the contract on the whole shows that the General Electric Company was transacting business in Texas? We do not think so. Of course the execution of .the contract itself was the transaction of business, but it was not a transaction of business in Texas. It was interstate in* its character, and therefore not within the prescription of the statute. It is, so far as this case is concerned, only the transaction of business in Texas that is forbidden except upon the state’s permit. Now, clearly it seems to us, the only business to be transacted or that was transacted in Texas, so far as the General Electric Company is concerned, was the sale of the lamps, and the accounting therefor. It is true in the nature of things there are stipulated many regulations and limitations upon the manner of doing this business. This is to be expected. The title to the goods was retained in the manufacturer until they were actually sold. The manufacturer was vitally interested, not only in the volume of sales to be made under the contract, but likewise in those numerous details calculated to build up a permanent demand for this particular brand of goods through satisfied customers and the like. The manufacturer stipulated that the goods were to be properly displayed, and that certain helpful advertisements should accompany sales. The contract limits ■the district and customers to be supplied by the agent. But the fact remains that the business of selling the products in Texas under the limitations and qualifications prescribed was that of the Nunn Electric Company. * * ⅜. The business of selling the consigned stock is entirely different and apart from the business of consummating the consignment contract. The latter involves the execution of the contract, while the former consists in the performance of its terms. * * ⅜ Granting exclusive right to purchase and sell goods in a stated territory; requiring a stated stock of goods to he kept on hand; requiring goods to be located in a particular place or displayed in a particular way, or to be properly cared for; agreement to insure in favor of the owner, or to permit the owner to inspect at will; obligating the purchaser or consignee to keep and send an inventory to the owner on request, not to sell except at fixed prices, not to sell other goods; agreement by the consignee to distribute advertising matter; permitting the consignee to defer payment until goods are resold; requiring purchaser to devote entire time to sale of the goods, or to pay proper attention to sale, or conserve the best interests of the agency, or to use best endeavors to further business or push sales; agreement not to assign agency or remove it” — does not constitute the operation of the business.

Further, that case says:

“Assuming, as we must, that the real nature of the transaction is disclosed in the contract, we must hold that there is nothing to show that General • Electric Company was transacting business in Texas so as to impose upon it the necessity of obtaining the permit required'by law. There would be fully as much reason for holding the General Electric Company liable personally for the rents, salaries, and other expenses of the Nunn Electric Company as to hold it liable for the consequences of a failure to take out a permit. The contract contemplates that everything that is done in Texas under its terms in furtherance of the business authorized is to be done by the Nunn Electric Company, who alone is transacting business in this state. There is nothing in the contract to bring the case within the rule that the foreign corporation maintains a stock of goods or wares within the state from which it makes sales directly, by consignment, or otherwise. It does nothing of the kind. All its sales are by consignment under allowable limitations and regulations.”

We therefore hold that the trial court erred in sustaining the plea in abatement, and reverse the judgment of that court and remand the case for a new trial.


source: Caselaw Access Project

author: JACKSON, J.

license: Public Domain

text:
    TULL v. WILBARGER COUNTY et al.
    No. 3531.
    Court of Civil Appeals of Texas. Amarillo.
    Jan. 14, 1931.
    Rehearing Denied Feb. 18, 1931.
    Storey, Leak & Storey, of Vernon, for appellant.
    Berry, Warlick & Gossett, of Vernon, for appellees.
   JACKSON, J.

This is a suit in trespass to try title instituted in the district court of Wilbarger county, Tex., by the plaintiff, J. L. iTull, against the defendants Wilbarger county, J. V. Townsend, county judge of said county, Hugh King, T. K. Huffman, J. M. Reynolds, and R. Cobb, county commissioners of said county, to recover the title and possession of a strip of land 80 feet wide and 2,180 feet long, the description of which is sufficiently set out in plaintiff’s petition and the exhibit attached thereto.

The defendants filed a plea in abatement, requesting that the suit be abated and dismissed because of nonjoinder of necessary parties defendant, alleging that the state of Texas or the state highway commission is a necessary party defendant, that the land in controversy is a part of state highway No. 28, and, prior to the filing of plaintiff’s petition, possession thereof was taken by the state highway commission and maintained by the state as required by law, and that the defendants are not in possession of said land, and have no possessory right, claim, or control over said land or any part thereof.

The other allegations in the defendants’ plea in abatement and the pleadings of the plaintiff in reply thereto, under our view of the case, are immaterial for a disposition of this appeal.

The court heard testimony on the plea in abatement, and, among other things, in his findings of fact which appear in the record, he found that the defendants do not have, and have not had since long prior to the institution of the suit, any right, title, interest, control, or possession of said land or highway or any part thereof, that’ the highway commission of Texas is not a party to this suit, and that no other person, corporation, or body has any - right, title, or interest in and to the subject-matter of the suit.

' The trial court concludes as a matter of law, and by reason of the evidence and facts, that there is a misjoinder of parties, that such misjoinder was properly presented by defendants’ plea in abatement, and that such plea should be sustained.

Judgment was rendered sustaining the plea, and the suit was abated and dismissed, from which judgment the plaintiff, hereinafter called appellant, by writ of error prosecutes this appeal.

The appellant challenges as error the action of the trial court in sustaining the ap-pellees’ plea in abatement for nonjoinder of parties and dismissing the suit.

It is manifest that the statement in the court’s conclusions of law that there is a misjoinder of parties was intended to -be a nonjoinder of parties, as misjoinder is not pleaded and not presented in the record.

The appellees state in their brief that the suit was one in trespass to try title and recover the lands described in appellant’s petition, that the defendants disclaimed all claim of possession, rights, or control in their plea in abatement, and that from the facts it is evident that the land, at the time of the institution of the suit by plaintiff, was in possession-of the state of Texas, and claim of ownership could be made only by the state and no judgment could finally ’dispose of the issues of fact as to the legality or illegality of the state’s right without joining.it as a party defendant'.

The court, upon the testimony, having found as a fact, which, finding is not challenged by either party, that the appellees had no right, title, or interest in and to the land in controversy, and were not in possession thereof, is a finding in favor of the disclaimer filed by appellees, and the suit being one in trespass to try title, the appellant was entitled, as against the appellees, to judgment for the land, and the appellees were entitled to a judgment for their costs.

“Upon the filing of the disclaimer by Katy Williams, the court should have given judgment in favor of plaintiff against her for the land, and, unless she was shown to have been in possession at the time the suit was brought. She should have had judgment for her costs. Wootters v. Hall, 67 Tex. 513, 3 S. W. 725. It does not appear that Katy Williams was in possession of the land sued for, and judgment should be here rendered in favor of plaintiff for the land, and in favor of Katy Williams for her costs, and cost of appeal.” Johnson et al. v. Schumacher et al., 72 Tex. 334, 12 S. W. 207, 208.

“If appellant has cause of action, it is not against appellee, who, from his own aver-ments, neither asserts claim nor right to the land of which he alleges he is the owner; and a judgment against him could not in any manner affect the right of the state.” Tate v. Wyatt, 77 Tex. 492, 14 S. W. 25, 26.

“A disclaimer is an admission upon the record of the plaintiff’s right, and a denial of the assertion of title on part of the defendant. Herring v. Swain, 84 Tex. 523, 19 S. W. 774. The judgment of the court should have been for the plaintiff for all of the land sued for as to which the defendant disclaimed; and the failure to render such judgment constitutes fundamental error.” Snyder v. Compton (Tex. Civ. App.) 29 S. W. 73.

1 “A disclaimer, as it is known in equity pleading, is not deemed an answer (Story, Eq. PI. § 838 et seq.), and it is certainly not a defensive plea. It is an admission upon the record of the plaintiff’s right, and a denial of the assertion of title on part of the defendant. If, therefore, a defendant in the action of trespass to try title should plead not guilty, and at the same time should file a disclaimer as to the entire tract of land sued for by the plaintiff, it would seem that the plea should be disregarded, and that the plaintiff should have judgment for the land, unless damages were claimed, in which case it would put him upon proof of the trespass only.” Herring v. Swain, 84 Tex. 523, 19 S. W. 774. See, also, Taylor et al. v. Higgins Oil & Fuel Co. et al. (Tex. Civ. App.) 2 S.W.(2d) 288.

The appellees, by their disclaimer having admitted upon the record plaintiff’s rights and denied any assertion of title on their part, were not in a position to urge a non-joinder of parties and require that appellant make the state highway commission a party. The appellant^ under the disclaimer, was not required to offer evidence of his title. Hildebrandt v. Hoffman (Tex. Civ. App.) 113 S. W. 785. If the state highway commission should have been made a party, ■ appellees cannot complain, as the only disadvantage of such course would fall on the appellant, as he may be under- the necessity of litigating a second time his rights with the state highway commission. Levi Thomas v. Alf Quarles et al., 64 Tex. 491; Stewart v. Kemp, 54 Tex. 249.

The judgment is reversed, and the cause remanded.

HALL, C. J., not sitting.


author: HALL, C. J.

text:
    FARMER v. HOLT.
    No. 3548.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 11, 1931.
    Rehearing Denied March 18, 1931.

      R. I-I. Templeton, of Wellington, for appellant.
    Sanders & Scott, of Amarillo, for appellee.
   HALL, C. J.

The appellee Holt, a resident of Wheeler county, sued appellant, R. E. Parmer, a resident of Collingsworth county, in the district court of Wheeler county, to recover the amount due on three vendor’s lien notes, executed by R. E. Parmer.

The petition alleged that Parmer was a resident of Collingsworth county. It is not alleged that the notes or either of them were payable in Wheeler county, where the suit was filed.

Parmer answered, and by his original answer demurred generally to the plaintiff’s petition, which is followed by what is called a “special exception,” but which is, in legal effect, a general demurrer to the petition, setting out as grounds of the demurrer: “Because the petition nowhere alleges that said notes are payable in Wheeler County where the suit is filed, and does allege that the defendant resides in Collingsworth County.” This is not á special exception, since it does not go to the manner and form of the pleading, but is a general demurrer which challenges the sufficiency of the petition to entitle plaintiff to maintain his suit against the defendant in Wheeler county.

Later the appellant Farmer filed his first amended original answer, in which he again “excepts to all of the plaintiff’s petition and particularly all of that part of said petition wherein plaintiff attempts to allege a cause of action against this defendant in this court, because the petition on its face alleges that this defendant resides in Collingsworth County, Texas, and the said petition fails to allege that said notes are payable in Wheeler County, Texas, where this suit is pending, or any fact that would give this Court venue or jurisdiction of the person of this defendant and is wholly insufficient in law to give this Court jurisdiction of the person of this defendant on the matters in controversy or venue of this suit.”

While this so-called “special exception” specifies the reason why the petition is insufficient, it is, as stated above, simply a general demurrer.

The trial court overruled this demurrer, and the case proceeded to trial. The court peremptorily instructed a verdict in favor of Holt for the amount sued for.

The first proposition which challenges the ruling of the court upon the demurrer must be sustained. To entitle a plaintiff to maintain a suit in a county other than the one in which the defendant resides, he must, by his pleadings, as well as his evidence, bring his case clearly within one of the exceptions of the Venue Statute. Cohen v. Munson, 59 Tex. 236; Lee v. Gilchrist Cotton Oil Co. (Tex. Civ. App.) 215 S. W. 977.

R. S. (1925) art. 1995 provides: “No person who is an inhabitant of this State shall be sued out of the county in which he has his domicile except in the following cases.” This is followed by thirty exceptions to the rule, and plaintiff’s petition fails to bring his case within either of the exceptions. On the contrary, the petition upon its face shows that his suit should have been filed in. Collings-worth county, which he alleges to be the residence of the defendant. The appellee insists that the court correctly instructed a verdict because appellant did not raise the issue of venue by a plea of privilege, and that the question could not be raised by a demurrer to the pleading. While one or two cases may be found by a Court of Civil Appeals so holding, the Supreme Court and other Courts of Civil Appeals specifically hold that, when it appears from the plaintiff’s petition that the defendant resides in a county other than the one in which the suit is filed, and the petition does not bring the case within one or more of the exceptions to the Venue Statute, the question of venue may be raised by exception or demurrer. Bigham v. Talbot & Cropper, 51 Tex. 450; Masterson v. Cundiff, 58 Tex. 472; Lumpkin v. Blewitt (Tex. Civ. App.) 111 S. W. 1072 (writ of error refused); Wolf v. Sahm, 55 Tex. Civ. App. 564, 120 S. W. 1114, 121 S. W. 561 (writ of error refused); K. C. P. & G. Ry. v. Bermea L. & L. Co. (Tex. Civ. App.) 54 S. W. 324; Holmes v. Coalson (Tex. Civ. App.) 178 S. W. 628; Thomason v. Ham (Tex. Civ. App.) 210 S. W. 561; Thomson v. Locke, 66 Tex. 383, 1 S. W. 112; Seley v. Whitfield (Tex. Civ. App.) 46 S. W. 865.

Because the court erred in overruling the demurrer and proceeding to trial, and fur-flier erred in instructing a verdict after the notes sued on had been introduced in evidence showing that they were not payable in Wheeler county, the judgment must be reversed.

Reversed and remanded.


author: BAUGH, J.

text:
    TEXAS EMPLOYERS’ INS. ASS’N v. SLOAN et al.
    No. 7553.
    Court of Civil Appeals of Texas. Austin.
    Feb. 12, 1931.
    Rehearing Denied March 4, 1931.

      Harry P. Lawther, of Dallas, Critz & Woodward, of Coleman, and Jas. P. Swift and Wm. M. Cramer, both of Dallas, for appellant.
    J. K. Baker, of Coleman, and E. M. Fitzpatrick and/ W. Y. Dunnam, both of Waco, for appellees.
   BAUGH, J.

This suit arose under the Workmen’s Compensation Act. The appellees, being the father and two sisters of W. A. Sloan, deceased, alleged that W. A. Sloan received accidental injuries in Coleman county, Tex., in the course of his employment, which resulted in his death. He was employed at the time by Behrens Drug Company of Waco, Tex., a subscriber under the Compensation Act, and with another employee had been sent to Talpa, in Coleman county, to install in a drug store there certain fixtures sold by said company. Judgment was rendered for appellees on answers to special issues submitted to the jury. These questions, which reflect the issues involved, the jury answered as follows:

1. That W. A. Sloan sustained a personal injury while installing a soda fountain at Talpa on May 6, 1929.

2. That he received said injury in the course of his employment.

3. That it naturally resulted in pneumonia and his death.

4. That his sisters Emma Katherine and Frances Sloan were then dependent upon his labor for support.

Appellant’s first contentions are that there was no evidence as a matter of law to sustain the jury’s findings; and that their findings are against the great preponderance of the evidence. The uncontroverted evidence shows that his sisters were dependent upon him at the time of his death. It also shows conclusively that the injury, if sustained by him as alleged, occurred in the course of his employment.

Disregarding, as is our duty under repeated decisions, all evidence adverse to the jury’s findings, and considering only that in support thereof, we find .testimony to show that the deceased was 21 years of age, weighed about 180 pounds, and was unusually well developed. That he left Waco in good health and jovial on the morning of May 8th, arrived at Talpa that afternoon, and worked at installing soda fountain fixtures there until about midnight. That some of said fixtures were very heavy, one part weighing 1,-750 pounds; and that some of the pieces of marble used weighed from 200 to 400 pounds. That next day, at about 11 a. m., while lifting one of the heavy pieces of marble, he gave an outcry, dropped the marble to the floor, stated that he had hurt himself lifting it, placed his hand on his back over his right lung, a frown came over his face, he turned pale, walked away, and sat down for awhile, then went to and sat in the 'automobile, repeating several times that he had hurt him- , self lifting. That he did no more work after the incident complained of; and was seen lying down on the back seat of the car while his fellow employee dfove towards Coleman that afternoon. That he and his colaborer stopped at Goldthwaite, about 90 miles from Talpa, that night, at which time he had a cough which he had not had before. That he arrived in Waco on May' 10th, was visited by a physician, and sent to a hospital on May 11th, with temperature 104 degrees and a pulse of 110. That he was emitting bloody sputum, and aspiration produced an amber colored fluid from the pleural cavity. An X-ray showed his right lung consolidated on May 13th; and that his condition gradually grew worse from May 11th to the 18th, on which day he died from pneumonia. The foregoing substantially states the facts set forth in a hypothetical question, based on the evidence, propounded without objection, to a physician on which to base his opinion. Based thereon the physician testified that in his opinion Mr. Sloan ruptured a blood vessel in his lung while lifting the heavy marble slab; that the leakage into the lung caused the high temperature and coughing; and that the consolidation of the lung and the pneu-monic condition there was the natural.result of such injury. This was ample testimony to indicate that Sloan had received some sort of injury either to his back or internally while lifting the marble slab on May 9th.

As to resultant pneumonia two physicians testified. The physician who treated him at Waco was employed by appellant insurance company. He testified that Sloan’s was an unusual case of pneumonia and difficult, to diagnose; that in his opinion Sloan’s pneumonia was caused in the usual way — from cold and exertion. There was no evidence that Sloan had any cold when ■ working at Talpa. This physician’s testimony indicates that he was adverse if not hostile to appellees, and that he had refused to give their attorneys any information relative to Sloan’s illness and death because he wanted to stay away from the courthouse and because he was employed by the insurance company. He did testify, however, that heavy lifting would throw a heavy strain on the lungs; and that rupture of a blood vessel in the lungs would probably result in pneumonia.

The foregoing was clearly sufficient to go to the jury and to sustain their findings on the issues submitted.

Appellant next complains of failure of the trial court in his charge, as requested by appellant, to preface each of the special issues submitted with the instruction, “Do you find and believe from a preponderance of the evidence” the fact inquired about. This form of presentation of special issues has been repeatedly approved and is propez. It is, however, not exclusive. Nor do we think the charge submitted was a general charge. The instruction complained of was: “You will answer each and all of the issues submitted to you upon the preponderance of the evidence.”' The ease of Texas & P. Ry. Co. v. Bufkin (Tex. Civ. App.) 19 S.W. (2d) 343, cited by appellant, follows the rule announced by this court in Wooton v. Jones (Tex. Civ. App.) 286 S. W. 680; M.-K.-T. Ry. Co. v. Thomason (Tex. Civ. App.) 3 S.W.(2d) 106; (writ ref.) and Davis v. Morris (Tex. Com. App.) 13 S.W.(2d) 63, in each of which the charge placed upon the plaintiff the burden of proving the material allegations of his petition or the facts relied upon for a recovery. Such an instruction is clearly a general charge. In the instant case, however, each of the issues submitted was qlear and simple, called for an affirmative finding, and, we think, carried its own burden. In any event the charge complained of placed the burden on neither party expressly, but met the rule announced in Wooten v. Jones, and in M.K.-T. Ry. Co. v. Thomason by pointing out to the jury where, and not upon whom, the burden of proof rested.

Nor is there any merit in appellant’s proposition that special issue No. 2 was duplicitous. This issue was: “Did such to* jury, if any, naturally result in pneumonia and death of W. A. Sloan?” It was admitted that Sloan’s death resulted from pneumonia immediately following his return to Waco from Talpa. The only issue presented to the jury, therefore, by this inquiry was whether the pneumonia was the natural result of the injury.

The sum awarded was not excessive. The deceased had been employed by the Behrens Drug Company during the whole of the year prior to his death at a salary of $90 per month. Subsection 5 of section 1 of article 8309, R. S., provides that in such case the average weekly wage shall be one fifty-second part of the annual, wage; and it was immaterial whether his working week was 5½ days or 6 days. Petroleum Casualty Co. v. Williams (Tex. Com. App.) 15 S.W.(2d) 553. It was not necessary to submit that issue to the jury. Section 8, art. 8306, R. S. 1925, fixes the amount of recovery.

The attorney appointed as guardian ad litem for the minor plaintiff, Emma Katherine Sloan, in his argument to the jury, over objection of appellant’s counsel, was permitted to explain to the jury the effect of their answers to the special issues submitted to them, and how the compensation would be divided if they answered all of said issues “Yes.” He also stated to the jury, “If you want these sisters of the deceased to recover to answer all issues ‘Yes.’ ” The trial court’s qualification on the bill of exception to the argument last above set out was: “Objection to argument was made without interrupting counsel and no charge relative to such argument was asked.”

Under decisions on similar if not identical circumstances such argument has been held to be reversible error. Humble Oil & Ref. Co. v. McLean (Tex. Com. App.) 280 S. W. 557; Petroleum Casualty Co. v. Williams (Tex. Com. App.) 15 S.W.(2d) 553; Fidelity Union Cas. Co. v. Cary (Tex. Com. App.) 25 S.W. (2d) 302. Nor was it necessary for appellant to request an instruction to the jury not to consider such argument. When the court’s attention was called to the improper argument and objection made thereto, it became the duty of the court to .instruct the jury not to consider it.

Appellant also insists that the proof showed that the dependent sisters had a stepmother living, and were therefore precluded from recovering anything under section 8a of article 8306, R. S. No pleading of either party raises that issue. The only testimony on that point was that of the minor sister that after the death of her mother, some eleven years before, her father had married again. There was no proof as to whom, whether such second wife was still living, and, if so, whether with her father. The proof was insufficient to establish as a fact the contention made by appellant. Since, however, the question will doubtless recur upon another trial, we have considered it here.

Prior to the 1923 amendment to section 8a’ of article 8306, R. S., the right of a stepmother to participate as a beneficiary depended upon proof of her dependency upon the injured employee. The Legislature by that amendment made her a beneficiary, regardless of her dependency. The provision of the act that distribution of the compensation among the beneficiaries should be made according to the law of descent and distribution was unchanged. Under the law of descent and distribution the stepmother would take nothing. The act consequently contains ambiguity as to the legislative intent if not a clear conflict. At least there is an inconsistency in the statute. This inconsistency obtained just as much prior to the amendment of 1923 as it does now. In construing the law as it was prior to the 1923 amendment, the Commission of Appeals held in Southern Surety Co. v. Weaver, 273 S. W. 838, 841, that “this apparent inconsistency should not be héld to abrogate the plain provision of the statute that the compensation shall be distributed among the beneficiaries according to the law of descent and distribution.” The same question was again presented to the Commission of Appeals in Security Union Casualty Co. v. Kelley, 6 S.W.(2d) 741. While the Commission of Appeals in the latter case declined to pass expressly on the question; a recovery by the stepmother was affirmed, and the result is, of necessity, to abrogate the laws of descent and distribution to that extent. We follow, therefore, the holding of the Court of Civil Appeals (299 S. W. 286, 288), in that ease, which evidences to our mind a reasonable and logical interpretation of the legislative intent, and the only interpretation by which the act can be made effective as to the stepmother, to the effect that “the stepmother stands in the place of the mother, and is entitled to that portion of the compensation that the mother would receive, if living. * ” It follows, therefore, that the father of deceased and his stepmother, if she were living at the time of his death, would be entitled to all of said compensation to the exclusion of the dependent sisters.

The stepmother could, we think, waive her rights in their behalf, or disclaim any right to such compensation, and permit the award as made by the trial court. Certainly the appellant would be in no position to complain in such ease.

For the reasons stated, the judgment of the trial court is reversed, and the cause remanded for another trial.

Reversed and remanded.


author: FLY, C. J.

text:
    LOZANO v. THOMAS W. BLAKE LUMBER CO.
    No. 8544.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 11, 1931.
    Rehearing Denied March 18, 1931.
    E. T. Yates, of Brownsville, for plaintiff in error.
    P. G. Greenwood, of Harlingen, for defendant in error.
   FLY, C. J.

The defendant in error, Thomas W. Blake, sole owner of the lumber company, sued plaintiff in error for a debt of 8569.18. The case was decided by the judge without a jury, and judgment was rendered for $569.18, with interest and costs.

This is a second appeal; the first being reported in (Tex. Civ. App.) 16 S.W.(2d) 983.

The original petition was filed July 25, 1928, and was on a contract, and in -the alternative on a quantum meruit, and it sought to foreclose a mechanic’s and mate-rialman’s lien on certain lots. After the case reached the trial court on the reversal and remanding thereof, defendant in error abandoned the allegations in his original petition and,set up a new action for money advanced to plaintiff in error. It is alleged that the sums were advanced in May and June, 1927, and the amended petition was filed December 27, 1929. This was more than two years after the cause of action had accrued.

The leading case in .Texas on the identity of causes of action where the question of limitations arises under amendments of pleadings is that of Phoenix Lumber Co. v. Houston Water Co., 94 Tex. 456, 61 S. W. 707. In that case the tests to be applied are discussed ; the two most important being whether the case set up by amendment can be sustained by the same evidence as the original cause of action, and whether the same defenses in each case can be resorted to. Applying these rules to the instant case, we are of opinion that the amended petition sets up a new cause of action. In the original petition the allegations are largely devoted to the purchase of a promissory note secured by a materialman’s lien on certain lots, and a recovery on the note and foreclosure of the lien was sought. In the alternative, the sum of money claimed was prayed for as a quantum meruit. The latter of course must be based on services performed under an implied contract to pay for the same according to their value. Neither of these causes of action was relied upon in the amended petition, which based recovery upon an allegation of money borrowed from defendant in error and never repaid. It is clear that a demand for recovery on a promissory note secured by a lien, or a demand on a quantum meruit, could not be sustained or defeated by tbe same tes> timony as a demand for money loaned, when the demand was not claimed to be secured by a note and lien. The last demand was one totally different from those set out in the original petition, and would depend upon a different state of facts. As said in the case cited, the original case and the new cause of action must be essentially the same. They must be identical in order that-the original action should halt the running of limitations against the amended claim. The plea of limitations should have been sustained.

The judgment is reversed, and judgment here rendered that defendant in error take nothing by this suit.


author: HIGGINS, J.

text:
    NATIONAL LIFE & ACCIDENT INS. CO. v. CASAS et al.
    No. 2497.
    Court of Civil Appeals of Texas. El Paso.
    Feb. 19, 1931.
    R. A. D. Morton, of El Paso, for appellant.
    Sydney Smith and John W. Penn, both of El PaSO, for appellees.
   HIGGINS, J.

Appellee Luz R. Casas filed two suits in the justice court against appellant; one to recover $142.15, and the other to recover $154.80. In that court judgments were rendered in favor of the defendant, and the plaintiff appealed to the county court at law. In the latter court the plaintiff moved to consolidate the two cases, which motion was granted over the defendant’s objection. The consolidated cases were tried before a jury, and upon findings returned judgment was rendered against the defendant for the full amount sued for, less an item, of $28.35.

The suits were to recover premiums paid on life insurance policies issued by. the appellant. Recovery was sought upon the theory that the policies' were governed by the law of Mexico, were nullities under the law of that republic, and no risk ever attached.

See American Nat. Ins. Co. v. Smith (Tex. Civ. App.) 13 S.W.(2d) 720; American Nat. Ins. Co. v. Villegas (Tex. Civ. App.) 32 S.W. (2d) 1109; Nat. L. & A. Ins. Co. v. Smith (Tex. Civ. App.) 20 S.W.(2d) 142.

On the trial of the case in the county court at law, upon the cross-examination of the above-named plaintiff, it was developed that she was a married woman, whereupon the court allowed her husband, Abraham Casas, to be joined as a pro forma plaintiff and ■judgment was rendered in favor of Luz R. Casas, “joined pro forma by her husband.”

There was no evidence that the premiums were paid by Mrs. Casas out of her separate estate, so the presumption is the payments were made out of the community funds. This being the case, the right of recovery was vested in the husband, and it was error to render judgment in favor of Mrs. Casas. Yellow Cab & Baggage Co. v. Smith (Tex. Civ. App.) 30 S.W.(2d) 697; Wartelsky v. McGee, 10 Tex. Civ. App. 220, 30 S. W. 69: Texas C. Ry. Co. v. Burnett, 61 Tex. 638.

The action of the court in consolidating the two cases presents no error, since the amount involved in the. suit as consolidated was for an amount within the jurisdiction of the'co.unty court at law. Article 2160, R. S.; Thompson v. Dodge (Tex. Civ. App.) 210 S. W. 586.

The suits were filed in the justice court on November 13, 1929. Among other defenses set up by the appellant was the bar of the two years’ statute of limitations. To this plea of limitation the plaintiff made no reply.

With respect to the question of limitation, the record in the present case is the same as in American National Insurance Co. v. Villegas, supra. The jury found that plaintiff, by the exercise of ordinary care, could have ascertained before November 13, 1927, that the defendant had no. permit to do business in Mexico, but, upon the erroneous view of the court that- the action was governed by the four years’ statute, this finding was disregarded. The court properly disregarded this finding because the issue was not presented by the pleadings. The finding was therefore immaterial, and could no*c properly form the basis of a judgment for either party. See the Villegas Case, supra. But in the state of the pleadings the appellant was entitled to ■ a peremptory instruction denying recovery of the premiums paid before November 13, 1927, because the action was governed by the two years’ statute of limitations. See the Villegas Case, supra.

The court did not err in admitting in evidence -paragraphs 5 and 6 of a stipulation entered into in the district court of El Paso county, in National life Accident Ins. Co. v. Smith et al. The facts agreed to in that stipulation were competent as admissions made by the appellant against its interest. Bilger v. Buchanan (Tex. Sup.) 6 S. W. 408; Warburton v. Wilkinson (Tex. Civ. App.) 182 S. W. 711; Jones on Evidence, §§ 681-683.

Supplementing the findings of the jury, the court made certain findings of fact; one to the effect that at the times covered by the transactions involved in the present suit the law of .Mexico provided that any insurance company doing business in the republic of Mexico should first obtain a permit to do business there, and that any company doing-business without having first obtained such permit, all policies, contracts, and transactions in connection therewith should be null and void and of no effect whatever, and that appellant had at no time complied with the laws of Mexico.

It is complained that this finding is unsupported by the evidence, and in the state of the record this proposition is sustained. The finding was manifestly based upon -paragraphs 5 and 6 of the stipulation above mentioned, entered into in the case of National Bife & Accident Insurance Co. v. Smith. That stipulation provided that at all times covered by the transactions involved in that suit the laws of Mexico provided, etc.

In the present suit there was no shpwing that the dates here involved corresponded with the dates referred to in the above-mentioned stipulation. There is therefore a failure of proof in the particular indicated and the court’s finding unsupported by the evidence.

Other propositions submitted by the appellant relate to matters which should not arise upon retrial. We have not undertaken to discuss in detail or at length the various propositions submitted by the appellant. The views expressed above are sufficient for the guidance of the court upon retrial of the cause.

Reversed and remanded.


text:
    NATIONAL LIFE & ACCIDENT INS. CO. v. LEAL et al.
    No. 2498.
    Court of Civil Appeals of Texas. El Paso.
    Feb. 19, 1931.
    R. A. D. Morton, of El Paso, for appellant.
    Sydney Smith- and John W. Penn, both of El Paso, for appellees.
   HIGGINS, J.

This case is companion to cause No. 2497, National Life & Accident Insurance Company v. Luz R. Casas, 36 S.W.(2d) 323, in which an opinion is this day handed down -by this court.

The rulings in the companion case apply as well to the present case. The present case, however, presents some additional questions which will be briefly considered.

In the special issues submitted to the jury, the court inquired concerning Soledad Leal instead of the plaintiff Dolores Leal, and proper exception thereto was taken by the defendant. Soledad Leal, it seems from tlie evidence, was the daughter of the plaintiff Dolores Leal, and represented the said plaintiff in all of the transactions involved in the suit. In the state of the evidence showing this agency relationship, the inquiry was properly made concerning the daughter, Soledad, but in the state of the plaintiff’s pleadings we think such submission was error. There is nothing in the plaintiff’s pleadings to disclose the agency relationship, and in the state of the pleadings the error complained of is well taken.

The court properly refused special issue B, requested by the defendant. The issue here involved was otherwise submitted in the court’s main charge in proper and better form.

The same observation applies to defendant’s requested issue D.

This opinion, and the rulings in the companion case, sufficiently indicate our views upon the questions presented by this appeal.

Reversed and remanded.


author: WALTHALL, J.

text:
    GUITAR et al. v. WHEELER et al.
    No. 2481.
    Court of Civil Appeals of Texas. El Paso.
    Jan. 29, 1931.
    Rehearing Denied March 5, 1931.

      Wagstaff, Harwell, Wagstaff & Douthit, of Abilene, for appellants.
    Clyde E. Thomas and Martelle McDonald, both of Big Spring, for appellees.
   WALTHALL, J.

Myrtie Wheeler, for herself and as next friend of Luther Wheeler and Alma Wheeler, minors, and Bernice Vale, joined by her husband, Jack Vale, plaintiffs, brought this suit against John Guitar, Sr., John Guitar, Jr., and Repps B. Guitai-, individually, severally, and in their respective capacities, as trustees for, and owners and parties at interest in the Guitar Trust Estate, together with others named as parties at interest in said estate, and W. B. Tidwell, to recover damage for the death of George S. Wheeler as the result of being struck by an automobile driven by W. B. Tidwell; the petition alleging that Tidwell was an employee of the Guitars above named in driving said ear, and that in driving the car he negligently caused the cai-to strike Wheeler, thus causing his death.

Defendants, except Tidwell, answered by general denial, alleged that Tidwell was not in their employ at the time of the accident causing the death of Wheeler, but was on a mission of his own, and was not -in the performance of any duty he owed defendants; defendants pleaded contributory negligence on the part <of Wheeler.

Tidwell answered by general denial and contributory negligence of Wheeler.

On special issues ’submitted, the jury found that Tidwell, at the time and place and in the manner testified to, was guilty of negligence in the operation of his car, and that such negligence was the direct and proximate cause of the death of Wheeler; that Tidwell, on the occasion in question, was acting within.the scope of his employment as foreman of the farm of defendants named, trustees. The jury stated the damages found; the jury also found that Wheeler was not guilty of contributory negligence at the time of the accident in which he was killed.

The court entered judgment in favor of plaintiffs against Tidwell individually, and against the three Guitars named in their respective capacities as trustees of the Guitar Trust Estate, but not personally. The Guitars, as trustees of said estate, prosecute this appeal.

Opinion.

The case must be reversed on appellants’ propositions 5, 6, and 7, but, in view of another trial, we think best to express our view on the other issues presented.

Appellants submit that the evidence is wholly insufficient to show that at the time of the accident .causing the &eath of Wheeler, Tid-well, the driver of the ear that struck Wheeler and killed him, was engaged in any business of appellants, or was acting within the scope of his employment, or was then engaged in any business for which he was employed by appellants, and, for reasons stated, that it was error to refuse to give appellants’ peremptory charge instructing the jury in their favor.

Appellees’ petition alleged that Tidwell, at the time and place of the accident, and in driving the car that struck and killed Wheeler, was the agent of and in the employ of appellants and in the due course of the business for which he was employed.

The court submitted, and the jury found, that Tidwell at the time of the accident was acting within the scope of his employment, and that finding is the basis of appellants’ liability. The proposition necessitates a review of the evidence as to the service Tidwell was performing for appellants in driving the car at the time of the accident. A general employment of Tidwell by appellants, a® foreman, on the farm operated by appellants, would not of itself be sufficient to show appellants’ liability; the evidence must show that in driving the car at the time of the accident Tidwell was performing some service for appellants within the scope of his employment as foreman of the farm.

The facts, as we view the record, are uneontroverted, and are as follows: The circumstances under which Wheeler was killed occurred on the 26th day of December, 1928. Tidwell at that time was in the employ as general foreman on the large farm of the Guitar Trust Estate, in Howard county, under the management and control of appellants, as trustees; the estate being a family affair and owned by the members of the Guitar family. The Guitar farm is situated some fifteen miles north by west from Big Spring. In the morning, on the day in question, Tidwell, with his wife and children, drove to Big Spring in an automobile. The purpose of his trip to Big Spring on that occasion was that his wife might do some shopping, but on no business for his employers, the Guitars. Shortly after reaching Big Spring, Tidwell met a Mexican man named Billaba. The meeting with Billaba was casual and not by previous appointment. Billa-ba asked Tidwell 'about some grubbing to be done on the Guitar farm. The result of the conversation was that Tidwell, in the morning of that same day, took Billaba in the ear out to the farm where the grubbing was to be done, taking his family with him at the same time. It was a paid of his duty as foreman of the Guitar farm to have the grubbing done, and, in taking Billaba to the place of the grubbing, Tidwell was in the performance of his duty as foreman. After showing Billaba the grubbing to be done, Tidwell took his family on to their home, taking Billaba with him, and then, in the afternoon of the same day, returned to Big Spring in the car, bringing Billaba with him.

The evidence is not clear as to whether Tid'-well, in taking Billaba to the place of the grubbing, agreed to bring him back to Big Spring, but from the evidence we find that he did so agree; it is clear that he did bring him back.

After remaining in Big Spring several hours at that time, Tidwell, while returning to his home in the ear on the public highway, struck and killed Wheeler. The question pre-fented is: In returning to his home, was Tid-well at that time, in the course of his employment as an employee of appellants? We think the facts stated, borne out by the evidence, were sufficient to take the issue to the jury. Had Tidwell left Billaba at the farm, or, having brought. Billaba by Big Spring, had the accident occurred at Big Spring after Tidwell had returned Billaba to Big Spring, and before he had started on his return to his home, a different question would be presented. We think it was within the scope of Tidwell’s employment in returning to his farm headquarters home after having taken Billaba back to Big Spring. It could hardly be said that after returning Billaba to" Big Spring Tid-well’s return trip home was for his own convenience. Pierce-Fordice Oil Ass’n v. Brading (Tex. Civ. App.) 212 S. W. 707. It was an issue for the jury and not the court.

It is true, as 'suggested by appellants, that, while Tidwell was at Big Spring and before starting on this return to his headquarters, he did turn aside from his master’s service, but the negligent act causing the death of Wheeler did not occur while he was so turned aside, but after he had resumed his service and was on his home trip.

We have reviewed the cases cited by appellants and think none of them are in point on the facts here. The liability of appellants is to be determined by the application of the general principles of the law of master and servant. As suggested by appellants, the burden is upon .appellees to show that Tidwell did the negligent act causing the death of Wheeler while acting within the scope of his employment. The act must be. done in furtherance of the master’s business and for the accomplishment of the object for which Tidwell was employed. Beyond the scope of his employment the servant is as much a stranger to the master as any third person.

The court instructed the jury: “Special Issue No. 3: Do you find from a preponderance of the evidence that W. B. Tidwell, in making the trip to Big Spring and back to his farm on the afternoon of December 26th, 1928, was acting within the scope of his employment as foreman of the farm of defendants, John Guitar, Sr., John Guitar, Jr., and Repp Guitar, Trustees? Answer yes or no.”

Appellants suggest that the charge was duplicitous, that it submits a mixed question of law and fact, was confusing and misleading, in that it gives to the jury too wide latitude to determine the term “scope of employment,” and does not confine the jury to the issue actually made as to whether or not Tidwell was, at the time of the accident, engaged in. furtherance of appellants’ business or any work of appellant.

Except as to the duplicity feature of the charge, which we will discuss later, we do not think the objections ai’e well taken. By the verbiage of the charge, the jury is confined to the trip made “in the afternoon” of that day. All the evidence shows that the first trip Tid-well made was with his family and was in the forenoon, and that the trip with Billaba, both going to Big Spring and returning to his home, was in the afternoon; the circumstances of the afternoon trip were the only ones involved here, and the only ones referred to in the charge. .

We think it was proper to submit the afternoon trip as a unit, since the jury must consider the circumstances of that entire trip in determining the point submitted, whether at ■the time of the accident Tidwell’s trip in returning to his farm headquarters was an act within the scope of his employment as foreman of the farm. If we are not mistaken in that, the charge was not objectionable other than being duplicitous. The fact of returning Billaba to’ Big-”Spring under the circumstances here ■ is essential in determining the point at issue.

We think the expression used in the charge “within the scope of his employment” is not a mixed question of law,and fact, as submitted by appellants ; nor do we think the expression should necessarily have been defined by the court in submitting the special issue. We have found no case so holding. No general rule can be formulated, which will determine in each case whether the servant was acting by reason of, or within the scope of his employment; the authority from the master generally being gathered from the surrounding circumstances in evidence. C. J. vol. 39, p. 1283, under par. 1472. Where the servant was doing some act in furtherance of the master’s business and which act was his' duty to his master to perform, such as returning in his automobile under the circumstances in evidence, it would be for the jury to determine from all the evidence, and not the court as a matter of law, whether such returning to his home would be an act within ■ the scope of his employment. In answer to the question, “Was it your duty to take that Mexican (Billaba) out to see that stuff (grubbing) and bring him in here (Big Spring)?” Tidwell answered: “It was my duty, yes. That is a fact, that grubbing out there was on the Guitar ranch, yes. I was wanting that grubbing - done, yes. * * * I was having it done to get wood. * * * I was not going • to pay for the grubbing out of my own pocket, no. Mr. Guitar was to pay for the grubbing, I suppose.”

The court was not in error in refusing to give appellants’ charge No. 1, a peremptory charge in appellants’ favor. The evidence was sufficient to take the case to the jury. Nor was it error to refuse submitted charges 2 and 3, the first asking whether Tidwell was engaged in any business for appellants after he had arrived at Big Spring in the afternoon of that day, and up to the time he started home. It was immaterial. No. 3 inquired whether Tidwell, at the time of the accident was “actually engaged in any business in behalf of defendants.” The issue was sufficiently submitted by the court in the court’s charge No. 3, above stated.

The court refused appellants’ charge No. 4, asking whether, at the time of the accident, “Tidwell was engaged in his own business and for his own account.” Appellants contend that the charge submitted their theory of the case, which had not been done by the court’s charge. The theory of appellants is that at the time of the accident Tid-well was engaged in a mission of his own, in which appellants were not concerned, and that the affirmative of that issue should have been submitted. We think it was not error to refuse the charge. Whatever other business Tidwell might have had of his own and for his own account, it was wholly immaterial where the uncontroverted evidence shows, as here, that at the time of the accident he was also acting within the scope of his employment as submitted in the court’s charge.

We have discussed issue No. 1 submitted by the court, but only in determining whether the motion for a new trial should have been granted on the grounds stated in the first proposition.

The case should have been submitted to the jury on some one or more of the negligent acts complained of in appellees’ pleading, and upon which evidence was offered. This was not done, and appellants assigned error to such failure in their fifth proposition.

In submitting the case to the jury, the court did not submit any one or more of thq negligent acts charged as a guide to the jury in determining whether there was negligence on the part of the driver of the car in causing the death of Wheeler; nor did the court define negligence. The failure to define negligence is assigned as error.

We will discuss the two propositions together. Article 2189 of the statute provides that the case shall be submitted upon issues raised by the pleadings and the evidence in the case. The special issues must be submitted distinctly, and, where more than one issue is submitted, they must be submitted separately.

The same article of the statute provides that in submitting special issues the court -shall submit such explanations and definitions of legal terms as shall be necessary to enable the jury to pass upon and render a verdict on such issues. The court submitted the issue of negligence generally, but omitted to define negligence.

Appellee complained of several acts of negligence as causing the collision resulting in the death of Wheeler, viz.: ' Excessive speed; intoxication of Tidwell, the driver; violation of the law in turning to the right > so managing his car as not to keep it in control on the highway; not keeping a lookout; not putting on the brakes prior to the collision in an effort to avoid it.

The court’s charge is as follows: “Special Issue No. 1: Do you find from the preponderance of the evidence that the defendant, W. B. Tidwell, at the time and place and in the manner testified to herein was guilty of negligence in the operation of his car, on the night of the 26th of December, 1928 ? Answer yes or no.”

Appellants objected, to the giving of the charge as duplicitous, and as giving the jury no guide to determine the issue submitted. One of appellants’ grounds for a new trial was that the issue as submitted failed to confine the finding of the jury to the issue raised by the pleading and evidence and permitting the jury to speculate as to whether defendant (Tidwell) was guilty of negligence. In neither the objections to the court’s charge nor in the motion for a new trial do appellants specifically point out the omission to define negligence.

The charge, in our opinion, is affirmatively erroneous, in that it does not submit any one of the negligent acts charged, but submits negligence generally, and does not define negligence to the jury. No' special charge was submitted which undertakes to submit a proper charge or define negligence.

The charge is duplicitous, and, whatever may be said of the lack of definiteness in pointing out objections to the charge, it does specifically point out that the charge is duplicitous, by which we understand appellants to mean that the charge should submit to the jury separately and singly such acts of negligence as are pleaded and upon which evidence was offered, instead of, as was done, submitting to the jury, Was Tidwell guilty of negligence generally in the operation of the automobile at the time and place of the accident? Without discussing the ease at length, our Supreme Court, in Gulf, etc., Ry. Co. v. Conley, 113 Tex. 472, 260 S. W. 561, 32 A. L. R. 1183, and the Commission of Appeals, Section B, in Robertson & Mueller v. Holden, 1 S.W.(2d) 570, hold that, where the charge is merely defective or incomplete, or is affirmatively erroneous, an objection which sufficiently specifies the error will preserve the point on appeal, without the necessity of again directing ■ the court’s attention to the same subject by a special charge.

For the reason that the ■ charge does not! properly submit the issue of negligence to the jury, the case must be reversed and remanded. On another trial negligence should be defined.

The court charged the jury: “What damages, if any, do you find that the plaintiffs herein should recover that would fairly compensate the plaintiffs for the loss of their husband and father? Answer in dollars and cents.”

In this case the recovery as to appellants would be the pecuniary losé to appellees by reason of the death of their husband and father.

The petition does not allege the ages of George Wheeler, or of the wife, Myrtie, ap-pellee, and does not allege the ages of the minor children. The evidence shows that Wheeler at the time of his death was 37 years old, his physical condition good, a stout, strong, and normal man. We have not found in the record any statement as to the age of the appellee Myrtie Wheeler. One of the children, Bernice, married after the death of her father and before the trial of the ease. The evidence shows that Wheeler was a farmer, and at times worked off the farm, and that his average earnings for the last four or five years of his life would “be about three or four thousand dollars a year, each year, farming and working out.” Mrs. Wheeler testified: “He was supporting me and my children.” We have not found the life expectancy of either Wheeler or his wife, Myrtie, in the record. Nor does the evidence show the amount of money Wheeler bestowed upon his family for.any purpose for any .given length of time.

Where the jury finds for the plaintiffs in cases such as this, the recoverable damage is such sum as, if paid in hand at the time of the judgment, would fairly compensate appellees for the pecuniary losé they would reasonably have received from decedent during his life, which, in case of minor children, including the reasonable pecuniary value of the nurture, care, and education they would have received from decedent during their minority, if any, had he lived, but that no allowance should be made for grief or sorrow suffered on account of decedent’s death, or loss of his society, affection, companionship, or physical or mental pain suffered. Texas, etc., Ry. Co. v. Walker, 58 Tex. Civ. App. 615, 125 S. W. 99.

Now, we do not mean to hold that it is essential to prove that deceased actually contributed anything to the support of his wife and minor children for the law charges him with the duty of their support, a valuable right that can be enforced, and of which right they are deprived by his death; nor are they limited in the amount of recovery to such sum or sums of money as deceased probably would have contributed to them. The evidence shows that the deceased had bought land and was buying additional land, and was paying for it. Where the court states the correct rule for the amount of the recovery, as shown by the pleading and evidence, we think it would not be error in the charge to omit to state the facts the jury might consider in es-timating the lump recovery.

For reasons stated, the case must be reversed and remanded, and it is so ordered.

On Motion for Rehearing.

Appellants most earnestly contend that we are in error in holding that Tidwell was acting within the scope of his employment on returning to the Guitar farms after he had brought Billaba to Big Spring. Their contention is that Tidwell’s employment ended at Big Spring, on his return with Billaba, and that on his return trip from Big Spring to the Guitar farm he was not acting for his employers in the sense that his employers would be responsible for Tidwell’s negligence on his return trip, if he was negligent, in causing the death of Wheeler. We will further consider only that feature of the motion.

Appellants insist that our holding is not in harmony with Cunningham v. Railway, 51 Tex. 510, 32 Am. Rep. 632, Cunningham & Ellis v. Moore, 55 Tex. 373, 40 Am. Rep. 812, and Trachtenberg v. Castillo (Tex. Civ. App.) 257 S. W. 657.

In Cunningham v. Railway, Cunningham sued the International Railroad Company for personal injuries received while a passenger on the railroad. The defense of the railroad company was that the section of the road upon which the injury occurred was then in the exclusive possession and control of independent contractors and was then being operated for their benefit, and not by the servants of the International Railroad Company, and that the road was not then open for transportation of passengers, and that Cunningham as a passenger on such construction train then being operated by the independent contractor was not a passenger of defendant. The question discussed by the court was on the demurrer to that answer; that is, the liability of the railroad company for the act of the' independent construction contractors. The court held there was a marked distinction between the liability of the master for the acts of an ordinary servant in the usual scope of his duties as such, and that of an employee for the acts of an indepepdent contractor, and pointed out the reason for the difference in liability. •

In Cunningham & Ellis v. Mrs. Kate A. Moore, appellants were the lessees of the penitentiary and as such had custody and control of the convicts. Spencer O. Moore was a convict, and it was alleged that he was in charge of the lessees of the penitentiary, and that, while occupying a bunk erected by appellants, lessees, the bunk gave way and fell, from which he received injuries from which he died. The su\t was for damages against appellants as lessees. The court, after quoting certain articles of the statute and rules pertaining to the control and management of the penitentiary, among them that “no lease shall be made by which the control of the prisoners, except as to a reasonable amount of labor, shall pass from the state or its officers to the lessees,” etc., said, the testimony shows that, under the statute quoted, J. T. Echols, not one of the lessees, was appointed by the commissioners sergeant in charge of the convict camp to which convict Moore belonged, and that under his supervision and by direction of the commissioners the bunks in question were constructed, and that the convicts when turned in at night were under the exclusive control of Sergeant Echols, and that the lessees had no right to order the convicts off the bunk, by whose weight it was broken. We see no application of the facts in that case to the facts of the instant case.

The Traehtenberg-Oastillo Case is in point and was decided by this court. The writ of error was dismissed by the Supreme Court. The questions of fact are lengthy. We may state them briefly. The motortruck at the time of the accident belonged to appellants, and on the day and at the time of the accident was being driven by Tom Allen. Tom Allen was not in the regular employment of appellants, but was using the truck at times for his own use, and at times for the use of appellants, when called on for service by appellants. Tom Allen was permitted by appellants to keep the truck in his possession at all times, and to use the truck in going to and returning from his work, whether working for others or for appellants. On the day of the accident, Tom Allen had been working for appellants at their call, and in doing so used the truck, and at the end of that day he had finished his work for appellants and had not been called for further service for appellants. On the day of the accident and prior thereto, appellants had paid Tom Allen for his service and he had been discharged from their service until he should be again called for further truck service. While Tom Allen was returning the truck to the place where he kept it, the accident occurred. This court concluded from the undisputed evidence that Tom Allen was not in the employ of appellants in driving the truck to his home from the place where he had finished his service to appellants and had there been paid off and discharged. In deciding the case, we referred to Cunningham v. Ry. and Cunningham v. Moore, supra, not as being analogous in their facts, but as stating the test of responsibility of appellants under the facts of that case, Tom Allen, at the time of the accident, not being in the employ or under the control and direction of appellants after his discharge. In that case the court held that under the facts the relationship of employer and employee did not exist at the time of the accident.

In Berryman on Eaw of Automobiles, § 613, p. 688, in discussing the meaning of the phrase “in the course, or scope, of his employment” when used relative to the acts of a servant, it is said, “The test is whether tlie act dene was in the prosecution of the business in which the servant was employed to assist.”

In other words, was Tidwell, at the time of .the accident, engaged in serving appellants, or was he, in returning to the Guitar farm, after delivering Billaba at Big Spring, in the exercise solely of his own pleasure. We think his trip in returning to his place of employment, after delivering Billaba, was as much in the service of appellants as in going to Big Spring. We think it immaterial under the facts here that the automobile, driven by Tidwell at the time of the accident, belonged to Tidwell, if he was using it in the performance of a duty he owed his employers. The ownership of the automobile is simply an incident in the performance of his service; the thing done by the servant in the performance of a duty to his master is the ultimate act, and not the instrument with which he performs the duty that makes the master liable.

. It might be contended that in returning from Big Spring appellants contemplated that Tidwell would observe the rule of the road and not negligently run his automobile on the. wrong side of the road, and, toy doing so, injure a third person, and for that reason appellants would not be liable. But such is not the law. We need only refer to Railway Co. v. Anderson, 82 Tex. 516, 17 S. W. 1039, 27 Am. St. Rep. 902; Railway Co. v. Cooper, 88 Tex. 607, 32 S. W. 517; Burnett v. Oechsner, 92 Tex. 588, 50 S. W. 562, 71 Am. St. Rep. 880, where it is held, in effect, that the master is held liable for the manner in which the servant performs the duty he is engaged to perform, if wrongful, and to the injury of another, although the master may have expressly forbidden the ■particular act.

We have discussed appellants’ liability since, under the record, the facts are undisputed, and appellants’ liability becomes one of law.

The motion is overruled.

Appellants request additional findings of fact. That motion is also overruled.


author: SELLERS, J.

text:
    PARIS & G. N. R. CO. et al. v. STAFFORD.
    No. 3938.
    Court of Civil Appeals of Texas. Texarkana.
    Feb. 6, 1931.
    Rehearing Denied Feb. 19, 1931.

      Goree, Odell & Allen, of Fort Worth, and Edgar Wright, of Paris, for appellants.
    Sturgeon, Birmingham . & Sturgeon, of Paris, and Sizer & Gardner, of Monett, Mo., for appellee.
   SELLERS, J.

This suit was filed >by Pearl Stafford, ad-ministratrix of the estate of Cecil Stafford, deceased, against the Paris & Great Northern Railroad Company and the St. Louis-San Francisco Railway Company, to recover damages for herself and minor children for the killing of her husband, an employee of the defendants in an accident near Paris, Tex., September 9, 1927. The deceased, Cecil Stafford, on that date was employed as locomotive fireman on a’ passenger train from Paris to Ft. gmltla, Ark., and was killed in an accident and derailment which occurred at Trout 'Spur, in Texas, and just north of Paris and on defendants’ line of road. The pleadings of plaintiff which raise the issues to be decided by this court are as follows:

“Plaintiff states that on the afternoon of said date, and a short time prior to the timé her said husband was injured, three colored boys while operating a Ford car on said highway and while making the turn or curve to cross over said railroad track near said switch stand, ran into and struck said switch stand with said Ford car, and by reason of the old, rotten, deteriorated and decayed condition of said cross tie to which said switch stand was spiked and by reason of the defective condition of said switch and switch stand, the attachments and fastenings thereof, and by reason of being set upon one tie instead of two, the said switch stand was moved and the top part thereof was slightly leaned or shoved over, and its fastenings and attachments loosened; all of which facts were known to the defendants, its agents, and employees, or by the exercise of proper care and diligence could have been known and ascertained by them in time to have avoided the injury and death of plaintiff’s said husband.
“That they were further negligent in that they failed to exercise ordinary care to maintain said switch, switch stand, and connections, and the ties under said main line track, in a reasonably safe condition, in that the tie upon and to which said switch stand was spiked was old, rotten, deteriorated and decayed, and said switch, switch stand and its connections were loose, insecure, unsafe and inoperative, and of insufficieiit strength to support and safely carry the weight of a large locomotive engine and train being operated over said main line track.”

The pleadings of the defendants involving the same issues are as follows: “That if the death of the said plaintiff’s decedent was not caused by an unavoidable accident, then that the death of the said plaintiff’s decedent was caused solely by the intervention and independent acts of third parties, over whom these defendants had no control, in tampering with, knocking down, displacing and attempting to replace a switch stand located on defendants’ property, doing so in such manner that the switch points were not placed against the rails, causing the derailment of defendants’ train, on a spur track located on defendants’ property, and the accident resulting in said plaihtiff’s decedent’s death; that the aforesaid acts of these third parties were unknown to defendants or their employees, and that same occurred within such a short time prior to injury of the said plaintiff’s decedent by the derailment of defendants’ train; that these defendants did not know of same and could not, by the exercise of ordinary care, have learned of same in time to have prevented the injury and death of the plaintiff’s decedent and defendants are not liable therefor.”

The court submitted the case to the jury upon special issues which are as follows:

“This case will be submitted to you for a special verdict; certain issues of fact will be submitted for your findings in the form of the questions hereinafter propounded to you, which you will answer from the evidence,in-the case, writing your answer to each question in the space left following the question. Your answers, when made, will constitute your verdict in this case. .

“Before propounding the questions referred to above I give you the following definitions or instructions:

“1. Ordinary care, as used in. this charge, means that degree of care that an ordinarily prudent person would use under the same or similar circumstances. A failure to use ordinary care is negligence, as that term is hereinafter used in this charge.
“2. The proximate cause of injury, as the term proximate cause is used in this charge, is meant some negligent act or omission which without the aid or intervention of any new or intervening cause naturally caused the injury complained of and without which the injury would not have occurred and to he proximate cause the act or omission complained of must have been such that a person of ordinary prudence and foresight should reasonably have anticipated that the injury complained of, or some similar injury might result therefrom.
“(By new or intervening cause, referred to in the definition of proximate cause in paragraph 2 is meant some independent act or omission reasonably sufficient of itself to have caused the injury complained of.)
“3. The tie referred to in the evidence in this case upon which the switch stand mentioned in the evidence was attached will be referred to hereinafter in this charge as the switch tie.
“Question No. 1Do you find from a preponderance of the evidence in this ease that on September 9, 1927, prior to the derailment of the train in question, that the switch tie in defendants’ track at Trout Spur was in a decayed, rotten or deteriorated condition? Answer: ‘Yes.’
“Question No. 2: If you have answered ‘yes’ to Question No. 1 above then do you find from a preponderance of the evidence in this case that the condition of the switch tie caused the track at said place to 'be not in a reasonably safe condition for the employees of the defendants to operate its trains over at said place? Answer: ‘Yes.’
“Question No. 3: If you have answered ‘Yes’ to Questions Nos. 1 and 2 above, then do you find from a preponderance of the evidence in this case that the agents and servants of the defendants were guilty of negligence, as that term is defined in paragraph 1 of this charge, in permitting the switch tie to be in the track at said time and place; that is, do you find from a preponderance of the evidence that the agents and servants of the defendants had not used ordinary care to keep said track at said place in a reasonably safe condition for the employees to operate trains thereon? Answer: ‘Yes.’
“Question No. 4: If you have answered ‘Yes’ to Question No. 3 above, then do you find from a preponderance of the evidence in this case that such negligence was the proximate cause of the derailment of the train and the death of Cecil Stafford? Answer: ‘Yes.’
“In arriving at your answer to Question No. 4 above, you are instructed that if you have found, in answer to Question No. 3 that the defendants’ servants and agents were guilty of negligence in permitting the tie to be under the track at said time and place, and if you further believe from the evidence that just prior to the derailment of the train, certain negroes negligently ran an automobile against the switch stand and by reason of the rotten, decayed or deteriorated condition of the switch tie moved the same, and thereby, or in trying to replace the stand the switch points were caused to be opened, and if you further believe that the negligence of the defendant in permitting the switch tie to be under the track at the place contributing or concurring with the negligence of the boys in running against the switch stand was the efficient cause of the opening of the switch points and the derailment of the train, you will answer ‘Yes’ to Question No. 4 above.
“If, on the other hand, you believe that the running of the automobile by the negro boys against the switch stand was the sole cause of the derailment, then you will answer‘No’ to Question No. 4 above.
“Question No. 5: If you have answered ‘Yes’ to Question No.. 4, then answer this question, What amount do you find would reasonably and fairly compensate the plaintiff, Pearl Stafford for the damages sustained by her by reason of the death of her husband, C. E. Stafford? Answer: ‘$10,000.00.’
“5 — A: What amount do you find would reasonably .and fairly compensate the child Loraine Stafford for the damages sustained by her by reason of the death of her father, O. E. Stafford? Answer: *$5^000.00.’
“5 — B: What amount do you find would reasonably and fairly compensate the child, Harold Eugene Stafford for the damages sustained by him by reason of the death of his father, O. E. Stafford? Answer: ‘$5,000.00.’
“In arriving at your answers to the questions last above, you may take into consideration the loss of such money as you believe O. E. Stafford would probably have contributed to the support and maintenance of his wife, Pearl Stafford, during his life and as to his children, such money as you believe he probably would have contributed to their support and maintenance during their minority, as well as the value of such admonition,, education and training as said two children probably would have received from him during their minority had the said O. E. Stafford not been killed. But in no event can you take into consideration or allow compensation'for the loss of his affection or companionship or the grief and sorrow occasioned the wife and children or either by reason of his death.
“You are the sole judges of the facts proven, the credibility of the witnesses and the weight to be given their evidence.”

The court entered judgment in favor of the appellee against the appellants for the sum of $20,000 upon the answers to the„ issues submitted to the jury.

The first and second propositions of appellants complain of the court’s failure to instruct the jury to return a. verdict in their favor. While the propositions are rather lengthy, in their final analysis they present this question, that the acts of the negroes in striking the switch stand was the sole cause of the derailment and injury complained of.

It will be remembered that this suit is brought and prosecuted under the Federal Employers’ Liability Act (45 USCA §§ 51-59), and to establish liability of defendants it was necessary, not only to prove negligence of defendants, but that such negligence was the sole or contributing (approximate) cause of the derailment of the train and the injury occasioned thereby.

The first three issues submitted to the jury are warranted by the evidence and unquestionably established negligence on the part of defendants, and there has been no serious contention here that the evidence did not justify such findings by the jury.

In pássing upon the issue of proximate cause we find the rule stated in the case of Milwaukee & St. Paul Railway v. Kellogg, 94 U. S. 469, 474, 24 L. Ed. 256, to be: “The true rule is, that what is the proximate cause of an injury is ordinarily a question for the jury. It is not a question of science or of legal knowledge. It is to be determined as a fact, in view of the circumstance's of fact attending.” The same rule applies in determining the proximate cause as in determining negligence, and in the case of Richmond & Danville Railway v. Powers, 149 U. S. 45, 13 S. Ct. 748, 749, 37 L. Ed. 642, it is stated: “Where there is uncertainty as to the existence of either negligence or contributory negligence, the question is not one of law, but of fact, and to be settled by a jury; and this whether the uncertainty arises from a conflict in the testimony, or because, the facts being undisputed, fair-minded men will honestly draw different conclusions from them.”

We will not undertake to set out all the evidence in this ease bearing on this question, but the following quotations are deemed sufficient :

“We met a truck on the highway right there. I don’t remember whether it was a Ford truck or a Chevrolet truck, but I am sure it was a truck. We met it right there at the spur, where the highway crosses the railroad. I aimed to make the turn and cross the railroad, the truck was coming from the west and I was headed west, that caused him to take the inside track and me to take the outside track and in making the turn I ran off the highway and off the bluff and up against the switch stand'. The highway there at Trout Spur is graveled. I was not driving very fast as I got to that corner and started to make the turn. I don’t know exactly how fast I was driving, between fifteen and twenty miles. There was nothing between the road and the switch stand I hit, no posts or anything of the kind. There were only two of us in the car when it left the highway and I was one of them, juát as the car left the highway and started down the bluff my brother jumped out, he was sitting in the back end of the car. There were two of us in the Ford when I ran it up agairist the switch stand. * * ⅜ When the car hit the switch stand it knocked the stand about half way over. Then we got out of the car and pushed it back, straightened it back and got a hammer from an old man living over there and nailed it down. All we had to nail it back down with was the hammer. We used the same spikes that were in it. The switch stand was not knocked off the switch tie. The first thing we did after we ran against the switch stand was to get out and push it back from against the stand, push the car back, then we straightened the stand back up, it was knocked a little better than half way down. On the south side the spikes were practically pulled out and on the north side they were not, and we. pushed it back up and nailed it down where it was. After we got the switch stand fixed we cranked the ear up and backed it out on the highway. One of the tires had a hole in it and we took it off and patched it and pumped it up and then went on to where we had started, the three of us. We went on to Bokchito after that in the car. The car was not broken in any way by reason of running against the switch stand, I drove it on to Bokchito, all the rest of the way.”
“* * * The switch stand was setting on one tie. The switch tie or head block was a pole tie, I mean that just one tie was made out of the tree, the. sap part of it had rotted off and it was cracked open in several places, there was one large crack I could run my hand in and it appeared to be in an unsound condition. By in ‘an unsound condition’ I mean it was rotten.”
“I saw the switch stand, the switch tie and the switch when I was there on Monday and I examined the switch tie, it was still in the track when we were there. The switch tie was very rotten, doty, decayed, I saw some holes in it, but I do not remember how many. From the examination I made of it you could ' not tell one hole from another, they all looked alike, the tie was so soft and in such a rotten condition that there was no difference in the holes that I could see.”
“ ⅞ * ⅜ Qijjg pieCeS 0f -wood I have here came off this side of the tie, where it was badly decayed. Both ends of the tie was rotten, I do not know which end of the tie the stand was on, but both ends were rotten, in fact, the whole tie was rotten.”
“I looked at the switch tie it had been on, and I looked at it the second time I was there, after the wreck, along there where the switch stand was. The tie I saw I consider it was a rotten tie, the boys took the hammer in one hand and drove it down there and you could not drive a spike in a sound piece of wood — when it is plumb sound you could not take a two or three-pound hammer and drive it as easy as if I had been driving a nail.”
‘T lived in Columbus, Georgia, before I came to Paris and was employed as a locomotive engineer. I have had twelve years experience in operating an engine, four years as fireman and eight as engineer. I worked for the Central Railroad Company of Georgia. As such engineer I had experience in the operation of both passenger and freight trains. * * * The operation of trains, heavy locomotives and passenger trains has a tendency to loosen the spikes that fasten the rails to the ties. * * ⅜ The effect of a locomotive weighing seventy or eighty tons, pulling a steel train would have upon the rail and upon the spikes that held it to the tie, if the tie was in a decayed and rotten condition, would be that the vibration of the cars on a decayed tie would loosen the spikes. I said that the vibration of an engine would loosen the spikes. A locomotive engine, pulling the kind of train you have named, vibrates laterally, backwards and forwards, as well as up and down on the rails it runs on. * * * There are several-things that would cause a switch to cock open, loose spikes holding the switch stand to the switch rail — to the switch tie, or loose spikes in the switch tie of the main rail, loose parts of the switch stand.”
“I said I saw some spike holes in the tie, the holes were about the size of the spikes, but it looked like they were large enough the spikes would not hold, not tight enough. I saw that there was just a little rusty scale on the spikes.”

No witness undertook to say with what force the Ford car struck the switch stand and from this record the fact is undisputed that the car was not injured in the collision. Neither does any witness testify as to the. position of the switch points until after the train was wrecked. *

We are of the opinion, from the evidence above quoted, that the court was clearly authorized in submitting the case to the jury.

There can be no escape from the fact that there existed the possibility of danger by reason of the decayed and rotten condition of the switch tie, the dislodgment of the switch stand so defectively maintained might have been occasioned by a number of causes, such as cattle on the range rubbing against it; the surge and swaying movements of heavy trains; or the idle hand of a passerby.

Under the authority of Washington & Georgetown Railway v. Hickey, 166 U. S. 523, 17 S. Ct. 661, 41 L. Ed. 1101, it was not necessary that appellant should foresee the very thing that did dislodge it, that is, the collision with an automobile; the material thing for appellants to foresee was that by reason of the defective switch tie the switch points might be moved, for any cause, a sufficient distance to cause a split switch.

It is true that this ease presents an unusual occurrence, but that fact will not excuse the liability of appellants. They should have anticipated those things which might happen even if such occurrences would be unusual. San Antonio & Aransas Pass Railway v. Behne et al. (Tex. Civ. App.) 198 S. W. 680, and eases therein cited.

Complaint is made by various assignments and propositions thereunder of the court’s charge. We have carefully considered all of them and are unable to agree with appellants that an'y of them present error. Article 2190, R. C. S. 1925, authorized the court where a case is submitted' on special issues to submit such explanations and definitions of legal terms as shall be necessary to enable the jury to properly pass upon and render a verdict upon the issues submitted. It is our opinion that the paragraph following special issue No. 4 of the court’s charge was a proper explanation in this- case, and without it the jury could not have intelligently answered special issue No. 4. Davis, Agent, v. Pettitt, (Tex. Com. App.) 258 S. W. 1046.

There was no error by the court in admitting over defendants’ objection Plaintiff’s Exhibits A and B, said exhibits having been sufficiently identified by the witness Arthur.

The argument of plaintiff’s counsel could not be considered an error such as would warrant a reversal of this case unless it should appear that the damages assessed were excessive. The damages in this case are not excessive, and we have been unable to find any cases that hold to the contrary.

There are a number of assignments in the record which have not been discussed in the opinion, but all have been considered and - those not mentioned are deemed without mer,it and are overruled.

Finding no errors in tlie record, we are of tlie opinion tliat tlie judgment of tlie trial court sliould be affirmed, and it is so ordered.

On Motion for Rebearing.

Appellant insists in its motion for a rehearing that the portion of the court’s charge following special issue No. 4 is a general charge and not authorized where a case is submitted on special issues and cites in support of its position the case of the St. Louis Southwestern Railway of Texas v. Hudson (Tex. Com. App.) 17 S.W.(2d) 793, in which the Supreme Court held certain portions of the court’s charge were general charges and not authorized since the case was submitted on special issues. This court agreed with the Supreme Court in that • particular case that the charges constituted general charges on questions of fact which the jury were called upon to answer, but for other reasons held that the appellant in that case was es-topped to complain on appeal of the error committed by the trial court.

We think the question here is entirely different from that presented in the Hudson Case. In the case at hand the court submitted in the first two issues questions of fact and gave no general charge whatever in connection with them. The third and fourth issues were questions of law for the jury to determine from the facts under appropriate instructions by the court. Special issue No. 3 in this case required no explanation by the court except a definition of negligence which was given, and it was in connection with the fourth issue that the court gave an additional explanation to the jury of approximate cause that the appellant here insists was error.

As stated in our original opinion, this case was an unusual occurrence, and the case is equally as unusual in that both parties should plead and prove the acts of the same third parties; appellant contending that the act of the negroes was the sole cause of the derailment and injuries complained of, while appellee insists, equally as vigorous, that said acts of the negroes contributed with the negligence of appellant to cause the derailment and injuries. Under this condition of the facts, it was certainly proper for the court to a.dvise the jury what group of facts, if believed by the jury, would constitute proximate cause, and which would not, and we cannot understand how appellant could be injured by the instructions given.

If the instructions had not been given and the jury had answered “No” to said special issue, it would seem to us that plaintiff would have had just cause to complain for the very reason that they were not bound by the negligence of the defendant alone, as constituting proximate cause, as the question as submitted might have led the jury to believe, but were entitled to recovery if any negligence of defendant coupled with the acts of the. negroes constituted proximate cause.

Appellant again insists that the instructions given by the court to the jury upon the issue of damages was incorrect, and cites a federal case, Gulf, C. & S. F. Ry. Co. v. Mosler, 275 U. S. 133, 48 S. Ct. 49, 72 L. Ed. 200, in support of its position. We think the rule with respect to the assessment of damages in Texas was complied with by the instructions given by the court, and, if the appellant desired the court to follow the rule •announced in the Mosler Case, it should have requested a correct charge embodying that rule. Western & A. R. R. Co. v. Hughes, 278 U. S. 496, 49 S. Ct. 231, 73 L. Ed. 473. This appellant did not do, and therefore cannot be heard to complain.

We have carefully considered appellant’s motion for a rehearing, and we are unable to agree with appellant that we were in error in our original opinion. Therefore, appellant’s motion for a rehearing is overruled.