author: •WADKER, J.

text:
    GROGAN-COCHRAN LUMBER CO. v. McWHORTER.
    (No. 1668.)
    Court of Civil Appeals of Texas. Beaumont.
    March 16, 1928.
    Rehearing Denied March 28, 1928.
    1. Pleading <&wkey;>l 11 — Affidavit controverting plea of privilege must contain allegations relied on to sustain venue in trial court.
    Affidavit, filed1 to controvert defendant’s plea of privilege, is itself plea, and must contain allegations of fact relied upon to sustain venue in trial of court, and, if not affirmatively alleged, affidavit must adopt terms of petition either by reference or as exhibit.
    2. Pleading c&wkey;l 11 — Controverting affidavit filed to plea of privilege not showing nature of cause of action held insufficient (Rev. St. 1925, art. 1995, subdi. 23).
    Affidavit controverting plea of privilege in action for cutting timber, not covered by deed, in. which nothing was alleged to show nature of cause of action nor to bring it within Rev. St. 1925, art. 1995, subd. 28, field insufficient.

      3. Venue <&wkey;5(5) — Suit to recover damage for cutting timber not covered by deed held “suit for damage to land,” within venue statute (Rev. St. 1925, art. 1995, subd. 14).
    Suit to recover damages for cutting and removing growing pine timber on land located in Montgomery county, not covered by deed, where defendant corporation had its principal office and place of business, held within Rev. St. 1925, art. 1995, subd. 14, providing suits for recovery of land or damages thereto must be brought in county in which land or part thereof may lie.
    [Ed. Note. — For other definitions; see Words and Phrases, First and Second Series, Suit.)
    4. Pleading <&wkey;11Ó — Defendant prosecuting plea of privilege to judgment and perfecting appeal held not to waive plea of privilege by filing answer and impleading warrantor (Rev. St. 1925, art 2008).
    Where defendant’s plea of privilege in suit to recover for cutting timber not covered by deed was prosecuted to judgment and necessary steps taken to perfect appeal, filing of answer and impleading of warrantor without saving by special plea its rights under plea of privilege or making answer subject thereto held not, in view of Rev. St. 1925, art. 2008, to constitute waiver of plea of privilege.
    5. Pleading t&wkey;l!I— Plea of privilege complying with statute held sufficient, though not embodying statute under which venue was claimed (Rev. St. 1925, art. 2007, and art. 1995, subd. 14).
    Plea of privilege in. action for damages for cutting timber not covered by deed, which was literal compliance with Rev. St. 1925, art. 2007, prescribing requisites of such plea, held sufficient, though it did not embody article 1995, subd. 14, under which right to change of venue was claimed.
    6. Pleading &wkey;>l 11 — Issues against plea of privilege can be raised only by controverting affidavit beyond which court cannot look to sustain venue (Rev. St. 1925, art. 2007).
    Issues against plea of privilege which by Rev. St. 1925, art. 2007, constitutes prima fa-cie case in favor of defendant must and can only be raised by controverting affidavit, and trial court cannot look beyond that plea to sustain venue.
    Appeal from District Court, Harris County; Chas. E. Ashe, Judge.
    Action by T. A. McWhorter against the Grogan-Cochran Dumber Company. From a judgment overruling defendant’s plea of privilege, defendant appeals.
    Reversed and remanded, with instructions.
    Vinson, Elkins, Sweeton & Weems, of Houston, for appellant.
    A. D. Dyess, of Houston, for appellee.
   •WADKER, J.

Appellee in this case thus pleaded his cause of action: He alleged that in the year 1919 he sold to Fred Neidigk “all the pine mill timber now standing and growing” upon certain land owned by him in Montgomery county, Tex., pleading the conditions of the deed, which, in heee verba, was made a part of his petition; that Nei-digk assigned his interest in this deed to appellant; that he and appellant entered into an extension agreement extending the time in which the timber was to be removed upon the conditions of the original deed and upon a new consideration; that appellant entered upon the land under the contract, and not only cut and removed all timber conveyed by its terms, but cut and removed timber from the land not covered by its terms, expressly pleading that such timber was not within the contract, describing fully the timber so cut, and dividing it into three classes of value of $2,500, $245.90, and $6,-250, respectively, and prayed judgment for these sums with a special prayer:

“That upon a hearing thereof of said contracts and the rights of parties hereto growing out of said contracts and agreement be construed and determined by this court and such other and further relief, general and special, to which this plaintiff may show himself. entitled and as in duty bound and ever pray.”

Appellant answered in due order of pleading by the statutory plea of privilege, as follows:

“I. The defendant was not at the time of the institution of this suit, nor at the time of the service of process herein, nor at the time of the filing of this plea of privilege, a resident of Harris county, Tex.
“II. That this defendant was at the time of the institution of this suit, and at the time of the service of process on it, and at the time of filing this plea, a resident of Montgomery county, Tex.
“III. That at the time of the filing of this suit, and at the time of service of process on it, and at the time of filing this plea, no exception to exclusive venue in the county of one’s residence provided1 in law exists in said cause.”

This plea was answered by the following controverting affidavit:

“I. That the defendant is a corporation and that the cause of action herein sued upon arose in part in Harris county, Tex., for this: That the written contract of date the 26th day of January, 1925, between the plaintiff and the defendant, Grogan-Ooehran Dumber Company, as pleaded in full in plaintiff’s petition filed in this cause, was made and entered into between the plaintiff and the defendant in Houston, Harris county, Tex.; that the cause of action is the contract herein sued upon and the breach .thereof, and said contract having been made and entered into by and between plaintiff and defendant in Houston, Harris county, Tex., venue in this suit properly lies in Houston, Harris county, Tex.
“Because of the facts aforesaid, plaintiff respectfully submits that the venue of this suit lies in Harris county, Tex., under the provision of subdivision 2S of article 1995 of the Revised. Civil Statutes of 1925.” •

Appellee testified in liis own belialf that he sold the timber on his land to Fred Neidigk under the deed pleaded; that Neidigk sold to appellant, and that appellee and appellant entered into the extension agreement as pleaded; that appellant entered upon the land and cut and removed the timber for which appellee was suing. He testified further that it was his contention that the timber for which he was suing was not conveyed by the terms of the deed. He testified:

“They went on there without right and cut this timber not according to contract; they cut timber that had grown up; they cut timber they had no title to. That is what I am suing for. It is my contention they went in as trespassers and cut timber they had no title to. They went on my land and premises with the lawful right under that contract. Under this contract they were given a certain time to enter upon my land and cut and'remove the'timber therefrom. They cut and removed the timber concerning which I make this complaint, at the time they entered on my land and premises under this contract, they cut timber for which I sue in this suit at the time they entered the premises under my contract. I pointed out certain parts of my land that I wanted them to cut' timber from. At the time they eut and left that land there was other timber left at the time that was not of sawmill dimensions at the time it was first cut over. They thereafter eut and removed certain portions of that timber.”

■ Appellant’s attorney testified that the construction of the contract was the only point in issue in the case. On the record as thus made appellant’s plea of privilege was overruled, and the ease is before us on appeal from that judgment.

Appellant insists that the controverting affidavit was insufficient, in that it did not affirmatively allege facts conferring venue on the trial court, the point being that the affidavit does not set. out the facts of appellant’s cause of action. The law seems to be that the controverting affidavit is itself a plea and must contain allegations of fact relied upon to sustain the venue in the trial court, and if not affirmatively alleged, the affidavit must adopt the terms of the petition, either by reference or as an exhibit. Clearly, in this respect the affidavit was insufficient. There was nothing alleged to show the nature of the cause of action nor that would bring the case within article 1995, § 23. On authority of Jacobson v. Berwick (Tex. Civ. App.) 289 S. W. 1037 the controverting affidavit was insufficient.

But pretermitting that point, the court erred in overruling the plea of privilege. It clearly appears, both from appellee’s petition and his evidence, that this was a suit to recover damages for cutting and removing growing pine timber on land located in Montgomery county, where appellant had its principal office and its place of business, and that appellant had no office or agent in Harris county. It was, therefore, a suit to -recover damages to land, within exception 14 of article 1995, providing that:

“Suits for the recovery of lands or damages thereto, * * * must be broughé in the county in which the land, or a part thereof, may lie.” Railway Co. v. Foster (Tex. Civ. App.) 44 S. W. 198.

While this is not a jurisdictional statute (Houston Oil Co. v. Bayne [Tex Civ. App.) 141 S. W. 544), it is of such a mandatory nature as to control when in conflict with other sections providing simply that suit “may be brought,” as does section 23, specially pleaded by appellee. In Mitchell v. Hancock (Tex. Civ. App.) 196 S. W. 694, it was said that the difference in wording in the various exceptions to the general rule indicates that the Legislature had in mind the different significations of the terms “may,” “must,” and “shall,” and presumably used those terms in relation to the subject of venue advisedly. So, though appellee be right (a point we do not decide) in his contention that this is a suit to construe a timber deed which he made to Neidigk and the extension thereof to appellant, and therefore within the provisions of section 23, article 1995, his ground of venue must, because of the mandatory language of section •14, yield to the provisions of that section conferring venue upon Montgomery county. Cogdell v. Ross (Tex. Civ. App.) 243 S. W. 561, and authorities therein cited; Reeder & Lynch v. E. B. Hayes Mach. Co. (Tex. Civ. App.) 257 S. W. 947; Mitchell v. Porter (Tex. Civ. App.) 194 S. W. 981; Burkitt v. Wynne (Tex. Civ. App.) 132 S. W. 816; Dickson v. Scharff (Tex. Civ. App.) 142 S. W. 981.

After appellant’s plea of privilege had been overruled, the case was called for trial on its merits, and it was forced to proceed with its defense, and in doing so answered to the merits, and impleaded its warrantor, without saving by a special plea its rights under its plea of privilege, and without making such answer subject to its plea of privilege. On this ground appellee asserts that the plea of privilege has been waived. This is not a sound proposition. Having duly prosecuted its plea of privilege to judgment, and having reserved proper exception to that judgment, and taken the necessary steps to perfect its appeal, the filing of an answer and impleading its warrantor did not waive the plea of privilege.

By filing its plea of privilege in the due order of pleading appellant is within the rule announced in Hickman v. Swain, 106 Tex. 431, 167 S. W. 209:

“If the plea of privilege was filed in the due order of pleading, the filing thereafter of a plea over against plaintiff did not affect the right of the defendants to insist upon the transfer of the case to the county in which they resided.”

But it is our judgment that this rule based on due order of pleading does npt control in this case. We cite the Hickman Case only to answer appellant’s proposition that the failure to make the defensive pleas subject to the plea of privilege constituted a waiver. He based his proposition on Douglas v. Baker, 79 Tex. 499, 15 S. W. 801, and insists that there is a conflict between these two cases. That we do not decide. The Douglas Case 'was cited to the Supreme Court in the Hickman Case and was neither distinguished nor overruled. Being a later expression of the Supreme Court made with the knowledge of its prior decisions, the Hickman Case should control on similar facts. The case at bar on due order of pleading falls directly within the rule of that case. As conflicting with the Hickman Case and supporting the Douglas Case, appellee cites Whisnant v. Kurtz (Tex. Civ. App.) 228 S. W. 977, and Kelly v. National Bank (Tex. Civ. App.) 233 S. W. 782. These decisions by the Courts of Civil Appeals may follow the Douglas Case in principle, rather than the later Hickman Case, but neither of them is on the facts of this case. However, the Supreme Court itself cited the Hickman Case with approval in Gohlman v. Whittle, 115 Tex. 9, 273 S. W. 806, followed by the Austin Court of Civil Appeals in Casualty Co. v. Cameron & Co., 288 S. W. 584. 'None of the cases thus cited are on all fours with the facts of this case. In all the cases recognizing the principle of waiver, so far as we have examined them, the pleas constituting the waiver were filed after the filing of the plea of privilege but before the plea was disposed of by trial and judgment on its merits. In the case before us the -defensive pleas were not filed until after the pleas of privilege had been overruled and the necessary steps taken to perfect the appeal from that judgment. As we understand the facts of this case, it does not involve the proposition of due order of pleading. Under article 2008, Revised Statutes, the defendant may be forced to trial on the merits pending his appeal from an adverse judgment on his plea of privilege. Martin v. McKean & McNeal (Tex. Com. App.) 257 S. W. 241. Therefore he has the right inherent in the due process of law to file all necessary defensive pleas' without prejudice to his appeal, since no attempt by legislation has been made to regulate the pleadings. It follows that where a defendant is forced to trial pending his appeal on his plea of privilege, he must proceed as in other cases. The plea of privilege is out of the case, and as between that plea and the subsequent trial of the case on its merits no proposition of due order- of pleading can arise under the present statutes. The defendant can forfeit his appeal on his plea of privilege, as the law now stands, only by abandonment or by doing or failing to do some act in bar thereof. The rule on this proposition is thus stated by 3 C. J. 665:

“In order to bar the right of appeal upon the ground of acquiescence, the acts relied upon must be such as to clearly and unmistakably show acquiescence, and it must be unconditional, voluntary, and absolute.”

See, also, O’Fiel v. Janes (Tex. Civ. App.) 220 S. W. 371. On these facts there was no acquiescence by appellant in the judgment against it. The appeal was duly perfected and duly prosecuted to this court. There is no suggestion of an intent to abandon the appeal. The proposition of abandonment by failure to prosecute an appeal from a judgment on the merits, discussed by us in Medicine Co. v. Avant, 275 S. W. 260, is not in this case.

Appellee insists that the plea of privilege was insufficient in that it did not specifically refer to and embody section 14 of article 1995, supra. This is not a sound proposition. The 'plea of privilege was a literal compliance with article 2007, Revised Statutes, and therefore sufficient. Under article 2008, Revised Statutes, prescribing the essential elements of a controverting, affidavit, it was required of appellee to plead specifically the provisions of the statute sustaining jurisdiction in Harris county. Witting v. Towns (Tex. Civ. App.) 265 S. W. 411. In meeting this burden he pleaded section 23 of article 1995. The issues against the plea of privilege which by statute constitute a prima facie case in favor of the defendant must and can be raised only by the controverting affidavit. The trial court -cannot look beyond that plea for grounds to sustain the venue. To hold the affidavit sufficient, we must incorporate within it the allegations of plaintiff’s petition. When that is done it appears both on the allegations of the controverting affidavit and by the evidence that plaintiff’s case comes within the provisions of section 14 of article 1995. So, as we have already said, if the pleadings and the evidence of appellee make a case under section 23, they also make a case under section 14 of that article. Then, because of the mandatory nature of section 14, it must prevail against section 23.

In further support of his proposition that the plea of privilege was insufficient and that appellant cannot now invoke section 14, article 1995, appellee says in his brief that this provision of the law was not called to the attention of the trial court in any way, that the case was not tried on that theory; therefore it cannot on .this appeal invoke section 14. This is a mere assertion by appellee without support in the record. There is nothing to show that section 14 was not called to the court’s attention and denied application to the facts of this case. It is the law that appellant cannot try his case upon one theory in the lower court and upon a different theory in the appellate court. Downs v. Stevenson, 56 Tex. Civ. App. 211, 119 S. W. 315; Haywood v. Scarborough (Tex. Civ. App.) 102 S. W. 469; Bank v. Freeman, 107 Tex. 523, 181 S. W. 187; Kistler v. Latham (Tex. Com. App.) 255 S. W. 983. But before that proposition can be successfully invoked the facts to sustain it must be found in'the record. Here, as we have said, the proposition has no support in the facts.

From what we have said, it follows that, the trial court erred in overruling the plea of privilege. It is therefore our order that the judgment of the trial court be reversed and this cause remanded, with instructions to transfer this case to the district court of Montgomery county.

Reversed and remanded, with instructions.
      <®=>For other cases see same topic and KEY-NUMBER-in all Key-NumberedDlgests and Indexes •

      ®=»For other ’eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: T-TAT.T,, c. J.

license: Public Domain

text:
    McBEATH v. CAMPBELL, Sheriff, et al.

    (No. 2869.)
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 5, 1927.
    Rehearing Denied Nov. 9, 1927.
    1. Evidence &wkey;>l2l (15) — Statement to plaintiff that person, not offered as witness, said that sheriff wanted plaintiff at courthouse, held inadmissible in false imprisonment suit.
    In action against sheriff for false imprisonment, testimony as to statement to plaintiff by his father-in-law that city marshal or another, neither of whom were offered as witnesses, said that sheriff wanted plaintiff to go to courthouse, held inadmissible and not binding on sheriff, who denied sending such message, and was not present at time, not being part of res gestee because no one had arrested defendant by sheriff’s order.
    2. Evidence c&wkey;-!2I (I) — Statement must accompany and characterize relevant and material act to be admissible as res gestee.
    ■To render statement admissible as verbal act under res gestee rule, there must be a relevant and material act which it accompanies and characterizes.
    3. Appeal and error &wkey;»837(ll) — Trial <&wkey;>105 (2) — Statement to plaintiff that third person said that sheriff wanted plaintiff at courthouse was properly disregarded as hearsay in false imprisonment suit, and cannot be considered by appellate court, though admitted without objection.
    Where plaintiff testified, in suit against sheriff for false imprisonment, that he went willingly with city marshal and another when his father-in-law told him that one of them had said that sheriff wanted him to go to courthouse, he was never placed in jail in such sheriff’s county, and there was no evidence .that such officer or any one acting under his directions ever arrested plaintiff, father-in-law’s statement, being purely hearsay, was properly disregarded by district court, and cannot be considered by appellate court, though admitted without objection.
    4. False Imprisonment <&wkey;39 — Issue of sheriff’s guilt of false imprisonment held not for jury under evidence.
    In suit against two sheriffs for false imprisonment, evidence 'held insufficient to take to jury question of guilt of sheriff, in whose office plaintiff was questioned as to certain person’s death.
    5. False imprisonment <9=>I5(I) — To charge false imprisonment defendant generally must have personally contributed wrong and acted pursuant to mutual understanding or common plan (Pen. Code 1925, arts. 1169 — 1172).
    To charge one with participation in false imprisonment, under Pen. Oode 1925, arts. 1169 -1172, it is generally essential that he should have personally contributed to such wrong, and act done must have been in pursuance of mutual understanding or in furtherance of common plan, at least until termination of enterprise.
    6. False imprisonment <&wkey;>8 — Sheriff’s custody of person pending habeas corpus proceedings does not constitute false imprisonment.
    Sheriff’s custody of person pending habeas corpus proceedings does not constitute false imprisonment, as such person is under authority of writ until court determines whether to discharge or remand him absolutely, and sheriff has no authority after issuance and service of writ to act or give directions concerning him, except to obey writ and bring him before court, and is bound to hold him in custody after court fixes amount of bond until satisfactory bail is furnished.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, False Imprisonment.]
    1
    7. False imprisonment <&wkey;l5(3)— Sheriff ignorant of deputies’ acts in bringing person from another county and confining him in jail is not -liable for false imprisonment.'
    Sheriff who was ignorant of his deputies’ acts in bringing person from another county and confining him in jail is not liable to such person for false imprisonment.
    8. False imprisonment <&wkey;45(3) — Sheriff is not responsible for deputies’ arrest and imprisonment of accused without warrant, unless he committed crime within their presence or hearing or was guilty of breach of peace (Rev. St. 1925, art. 6870; Code Cr. Proc. 1925, arts. 212, 213, 215).
    Sheriff is not responsible, under Rev. St. 1925, art. 6870, for his deputies’ acts in arresting and imprisoning one accused of crime without warrant, unless crime was committed within deputies’ presence or hearing, or arrested party was guilty of breach of peace, though such detention and incarceration amount to false imprisonment under Oode Gr. Proc. 1925, arts. 212, 213, 215.
    Appeal from District Court, Foard County; Robert Cole, Judge.
    Action by P. M. McBeath against L. D. Campbell, Sheriff of Foard County, and oth-' ers. Judgment for defendants, and plaintiff appeals.
    Affirmed.
    B. Y. Cummings and McDonald & Anderson, all of WacMta Rails, for appellant.
    Oswalt & Myers, of Crowell, and John Storey and Berry, Stokes & Killough, all of Yernon, for appellees.

      writ of error granted.

   T-TAT.T,, c. J.

The appellant filed this suit' against D. D. Campbell, sheriff of Hoard county, and W. Frank Edmonson, sheriff of Wil-barger county, and the sureties upon their respective official bonds, to recover damages for alleged false imprisonment.

No question is raised upon the appeal as to the sufficiency of the .petition. Campbell and the sureties upon his official bond answered by ghneral denial, and specially denied that said sheriff ever arrested or in any way restrained the plaintiff, and that the said sheriff made an investigation of the facts concerning the felony, which the appellant was suspected of having committed; that at the request of the district attorney, he left his office open at the courthouse in Crowell, for the use of the district attorney, and that when he, the said Campbell, returned from a trip to Foard City at night, he found the district attorney and certain peace officers • from Hardeman and Wilbarger counties, together with the plaintiff, in his office at the courthouse and that he did not commit any of the acts complained of in the plaintiff’s petition, nor did he direct or advise the commission , thereof, and was therefore not responsible for any of the alleged wrongs.

Sheriff Edmonson and the New Amsterdam Casualty Company, as surety upon his official bond, answered by general denial, and specially denied that the defendant Edmonson had anything whatever to do with the acts complained of in the plaintiff’s petition; that he did not arrest plaintiff and had nothing to do with the arrest of plaintiff and did not in any manner restrain him of his liberty; that he was not present, if he was restrained, and did not authorize or instruct or acquiesce in any unlawful act of any other person, in connection with such alleged arrest, and that of his deputies, or either of them, participating in such alleged arrest of plaintiff, such acts on the part of said deputies were without the knowledge or authority of defendant Edmon-son, and were done without his instructions, .and that he never at any time acquiesced in or ratified said acts.

At the conclusion of the evidence the court directed the jury to return a verdict in favor of all defendants. From the judgment entered in accordance therewith, plaintiff prosecutes this appeal.

The circumstances which gave rise to this action may be briefly stated as follows: A few days prior to the alleged arrest of the appellant, he, together with a neighbor, Sid Phillips, had assisted appellant’s brother, A. D. McBeath, -in loading the brother’s household goods into a railroad car at Crowell, for the purpose of having said goods transported to New Mexico. That appellant and Phillips left the said A. D. McBeath in the car at Crowell in the early morning hours of the 14th of January, 1926. That they were the last persons who saw the said A. D. McBeath on that morning, and thereafter his dead body was discovered in the car when the train reached Chillicothe, Tex., a town situated about twenty miles north of Crowell. January 14, 1926, was Thursday. The deceased, McBeath, was buried at Crowell on Saturday, January 16th, and on that night appellee Campbell called the appellant to the courthouse in Crowell, together with the county attorney of Foard county, and interrogated him concerning the death of A. D. McBeath for about 30 minutes, after which he was allowed to go to his home, several miles in the country. On the following night, being Sunday, January 17th, about 11 o’clock, Bob Thomas, the city marshal of Crowell, in company with one Guy Crews, went to the house of appellant’s father-in-law, where appellant, his wife and baby, were spending the night, and told appellant that Sheriff Campbell wanted him to come to the courthouse at Crowell, and that the sheriff and Mr. Storey, the district attorney, wanted to talk with him. It further appears that at the same time, Sheriff Campbell, in company with Deputy Sheriff McClendon, of Wilbarger county, went to the house of Sid Phillips and required him to come with them to the courthouse at Crowell. After the appellant reached the courthouse, Leveritt, a deputy sheriff from Hardeman county, Storey, the district attorney, Watts and McClendon; deputy sheriffs from Wilbarger county, appellee Campbell, Jack Roden, and detective for the railway company by the name of Thompson, all came to the courthouse. The appellant's version of what occurred afterwards is in part quoted from the statement of facts, as follows:

“They took me into Mr. Campbell’s office. Mr. Campbell was in there part of the time during the conversation that occurred in there. I heard a part of the accusation made against me. * * * Mr. Storey started in about the loading of the car and what time I left‘the car, and what time I got home, and then he told me that I killed my brother with a scoop shovel, and he says, ‘There isn’t a damn bit of use denying it; you know damn well you done it, and we have got straight dope on it, and we don’t have to go very far after it, no further than the jailhouse.’ I told him I didn’t do it. I couldn’t say that Mr. Campbell was present at that time. I had my back turned to the door. Mr. Campbell came in shortly after-wards. And Mr. Storey told me that J didn’t know that there was any officers out at the cemetery, when I was out there, watching me, and that I pretended to take my brother’s death awful hard, and that I pretended to have a handkerchief over my eyes, and that I was taking my brother’s death awful hard and that I was getting awful damn brave, but I wouldn’t be so damn brave when they got through with me. And Mr. Campbell stepped around in front of me and told me that this was getting mighty serious, and that I had better come clean and tell the truth about it, and I says ‘X have told you the truth, all the way through, and you know it.’ That was Mr. Campbell, the sheriff of this county, that I told that. They kept me there something like 1¾⅛ hours. I don’t know exactly what time I got to Vernon that night, bait I heard one of them say it was 4 or a little after, on the road to Vernon. I left out here at 11 o’clock, which was about 5 miles, or 4½, from Crowell. After I left the sheriff’s office down here, they took me straight to Vernon. Mr. Campbell was here when we left for Vernon. As to whether we left out of his office in charge of these other men in Mr. Campbell’s presence, they all went out just a little bit before I went out. After Mr. Campbell had said that they all got up and went out of the room, except Clyde Watts and myself, and were gone probably a minute or maybe a minute and a half, and Mr. Boyd McClendon came back in and said, ‘Well, come and go with us,’ and says, ‘Vou haven’t got no gun on, have you?’ and started to search me, and did search me, and I said, ‘No, sir; I haven’t.’ And they carried me down there and put me in Mr. Storey’s ear, and we turned around the corner, or started to turn the corner, and one said, ‘I forgot my overcoat;’ and Mr. Storey turned around and come to the sidewalk, and Mr. Campbell was about half way from the steps to the street, and Mr. Campbell went back and unlocked the courthouse door, and they went in and got the overcoat and come back out together, and at the end of the steps Mr. Campbell turned to the left and Mr. Boyd McClendon turned to the right, and we went to Vernon. Mr. Campbell was there in the presence and saw me when I left for Vernon. At that time nobody showed me any warrant. They did tell me that they had a warrant. Those fellows from Hardeman county did not claim to me that they had any warrant for me.” “I asked the jailer [at Vernon] to send a telegram to Mr. Tom Bell at the Bank of Crowell to let the folks know where X was at. * * * That was on Monday morning.
“Saturday was the 17th and Monday was the 18th, so it was on the morning of the 18th that I made the request that a message be sent to Mr. Bell. * * * As to whether they sent the message for me, or allowed me to send it, the jailer said he couldn’t do it. XJp to that time nobody had ever showed me any papers authorizing my arrest. When I stayed over there in jail in Vernon for two days I did that unwillingly. Tuesday was the 'first time I got into communication with anybody over there- * * * As to whether anybody showed me any papers during Monday or Tuesday, Judge Leak came up Tuesday; he came some time in the afternoon Tuesday, I don’t know just what time, and said we would have a habeas corpus trial at 7. Judge Leak was employed by Mr. Morgan; Mr. Morgan was my father-in-law, the man whose house I left tin Sunday night. * * * When they had the habeas corpus Tuesday night at 7 o’clock, they agreed to let me out on a $2,500 bondj so they .got the bonds up and signed them and accepted them, and we were fixing to start home, and the sheriff, I believe it was, said they had received a telegram or something from the Hardeman county sheriff, and that they had to hold me longer, that they couldn’t turn ine loose. That was on Tuesday night. They then, carried me back to jail and locked me up. I think it was the sheriff, Mr. Edmonson, that told me that they had to hold me further; and he held me further, until about 11 o’clock Wednesday morning. After the $2,500 bond had been fixed up at 7 o’clock Tuesday night, I was held over there until Wednesday morning, at 11 o’clock. I was then released and went home from there. When I got home I was not' arrested any more. I heard something about Mr. Campbell filing a complaint against me here, charging me with murder, but I was never arrested on any warrant from that complaint, and have not been arrested yet. * * * I have not been indicted in either of those three counties for the killing of my- brother. ⅜ ⅜ *
“When they came out there after me at my father-in-law’s, they'said" that Mr. Campbell had sent for me to come up here, that Mr. Sto-rey was here and wanted to talk to me. I did-n’t say anything; I got up and put my clothes on and come with Mr. Bob Thomas and Guy Crews to town, Guy Crews is a neighbor that lives there not very far from me. I couldn’t swear whether it was Mr. Crews or Mr. Thomas that told me that Mr. Campbell and Mr. Storey wanted to see me. Mr. Crews and Mr. Thomas were both in the car. Neither of them went in the house, and they did not come to the door. * * * I had retired before that time. ⅜ * * My father-in-law woke me up; he went out and talked to them and came back and told me that Mr. Guy Crews said that Mr. Campbell wanted us to come up here at Crowell, that Mr. Storey was here and wanted to talk to us. I did not go out and talk to Thomas and Crews. I put my clothes on and went on out, and they were out at the ear, and I got in the car and came in to town. Nobody ■told me that I was under arrest, and nobody forced me to get in the car. I came down here [Crojvell] because Mr. Campbell sent after me. I did not object to coming down here that night. * * * I ¿¡id not find out I was going,to, Vernon until I was in Vernon. I didn’t ask'anybody and didn’t know where I was going until I got to Vernon. I didn’t protest against it and didn’t tell them that I did not want to go, As to whether anybody forced me to get in Mr. Storey’s car out here, Mr. Boyd McClendon and them told me to go with them. As to .whether they took me by the arm and pushed me in the car, they- taken me by the arm when we walked out of the office. Boyd McClen-don did that. I expect I would have ■ gone with him if he hadn’t taken me by the arm, as he was the law and told me to go. * * * I saw the jailer at Vernon. I believe the first time that I saw Mr. Edmonson was on Tuesday evening. Sheriff Edmonson carried me from the jailhouse over to the courthouse, and that is the first time I.had seen him, and that wasn’t so very long after Judge Leak had had the conversation with me. I don’t remember just how long. I went over to the courthouse and they made’ the agreement about the bond; I, agreed to make the $2,500.00 bond; there was no hear-ing. There had not been any warrant issued for me in the matter up to the time that I went to Vernon.” •

^ 1 Appellee Campbell testified without contradiction that appellant was in the sheriff’s office during the night, at the request of the district attorney, but that he did not know who communicated the request to appellant. He said he did not send anybody to him, did not go out where appellant lived nor near there; that he had learned later that Bob Thomas, the city marshal, went out to where appellant was; that he had no conversation with Thomas before he went. He further testified that Storey told him over the phone he wanted to have an investigation over here tonight, as soon as he could drive it, and he wanted him to get Phillips and Parlin Mc-Beath in here to the courthouse. He further testified in substance:

“I told him at that time I could not at that time see the parties for him, that I had to go to, Poard City- on . other business. He then requested that I leave the courthouse open and the sheriff’s office open, so he could get in, and I did, and I then went to Foard City before I went out to Sid Phillips. In the meantime, I had not learned that anybody had gone out for McBeath, and the first time I learned it was when I got back from Sid Phillips. I saw McBeath in the courthouse, but not in my office—out in the hall. He was later taken to my office and was probably in there 30 or 40 minutes. He was in there twice, I think. Mr. Storey talked to him twice during that time. Mr. Oswalt, county attorney, Mr. Storey, district attorney, and Mr. Roden, constable, from Margaret, Watts and McClendon, deputy sheriffs from Vernon, were each in there part of the time. I néver had a conversation with Storey about what be would do with them. I did not do anything with them. They were there ⅛ my office, and McBeath was at liberty to go as far as I was concerned at any minute he was ready to go. I knew of no warrants for him. Storey told me when he got ready to go to Vernon that he had warrants issued in Harde-man for him. That was probably 2:30, or 3 o’clock at night. I was at my office at that time, at the request of Mr. Storey, to assist him in anything that he might ask me to do. He never asked me to hold this man, and I could not say that he was held there. When Storey got ready to go, he said: ‘You are going to Vernon with me;’ that was in my office, in my presence, and I made no objection to it. I had been requested to get McBeath and bring him to my office, but I did not get him. When somebody else had gone and got Mm, I came back, and was present some 40 minutes. I1 was out and in. A day or so after that, I filed a complaint against him. The county attorney brought a complaint in my office, laid it down, and said, ‘Mr. Storey said sign this complaint;’ and that Storey had called him over the phone. I said I understood he already had complaint or warrants from Hardeman county. I got my telephone and called Storey and asked him about it, and if he wanted me to make complaint against McBeath here. He said, ‘Yes, I do; it is necessary that you do that, and I request that you do it.’ I said, ‘Very well.’ ”

Thomas was. city marshal of Crowell. Crews was a private citizen living in appellant’s neighborhood. Neither Crews nor Thomas were offered as witnesses. The appellant insists that Campbell was responsible for the arrest and imprisonment of the appellant, but we find no testimony which even tends to sustain that contention, unless it be the statement which appellant’s father-in-law made to the appellant, at the former’s home, that Crews or the city marshal said that Sheriff Campbell wanted appellant to go to the courthouse at Crowell that night.

It may be inferred from appellant’s testimony that Crews and Thomas also told him that Campbell wanted him to come to Crowell and talk to Storey. Even though they told both appellant and his father-in-law, the result is the same. This statement was not admissible for any purpose, and certainly was not binding- upon Campbell, who denies having sent any such message, and was not present when it was made. It was not a part of the res gestae, because no one had arrested appellant by the order of Campbell.

To render a statement admissible as a verbal act under the res gestae rule, there must be a relevant and material act which it accompanies and characterizes. 11 Encyc. of Ev. 3S1; 22 C. J. 449, 450; Huth v. Huth, 10 Tex. Civ. App. 184, 30 S. W. 240; St Louis. B. & M. Ry. v. Jenkins (Tex. Civ. App.) 172 S. W. 984; State v. Ryder, 80 Vt. 422, 68 A. 652.

The main fact to which this unsworn hearsay statement is supposed to relate is that appellant was arrested or imprisoned by ' Campbell, or some one acting under his direc tions. Appellant testified that when his father-in-law, Morgan, told him what Crews and Thomas had said, that he went to Crowell with them willingly. We seriously doubt whether he was in fact ever arrested or illegally restrained until the Wilbarger county deputy sheriffs and the district attorney started with him to Vernon. He was never placed in the Crowell jail. There is not a scintilla of evidence showing that Campbell or any one acting under his directions ever arrested appellant. Moreover, appellant’s father-in-law could not have properly testified that Campbell had told Crews or the city marshal that Campbell wanted appellant to go to Crowell. Barnes v. Barnes (Tex. Civ. App.) 261 S. W. 485. So the statement, being purely hearsay, was properly disregarded by the district judge as evidence, and cannot be considered by this court, even though it has been admitted without objection. Henry v. Phillips; 105 Tex. 459, 151 S. W. 533.

We therefore, conclude the court did not err in directing a verdict against appellant, in so far as appellee Campbell is concerned.

There is no testimony which brings the matter, so far as Campbell is concerned, within Pen. Code 1925, arts. 1169, 1170, 1171, or 1172. Kress & Co. v. De Mont (Tex. Civ. App.) 224 S. W. 520; H. & T. C. Ry. Co. v. Roberson (Tex. Civ. App.) 138 S. W. 822; Triangle Motors Co. v. Smith, 216 Ky. 479, 287 S. W. 914; Humphreys v. Ry. Co. (Mo. App.) 286 S. W. 738. To charge one with participation in a wrong- of this character, it is generally essential that he should have personally contributed to it. Wolf v. Perryman, 82 Tex. 112, 17 S. W. 772. And the act done must he in pursuance of a mutual understanding or in furtherance of a common plan at least until termination of the enterprise. Cherry v. Preston (Tex. Civ. App.) 221 S. W. 1100; El Paso Electric Co. v. Crews (Tex. Civ. App.) 277 S. W. 732 ; 25 C. J. 497.

The next question to be considered is, Did the court err in directing a verdict in favor of Sheriff Edmonson? It is conceded that Edmonson lrnew nothing personally about the detention or imprisonment of appellant in the jail at Vernon until Tuesday afternoon, when he carried him over from the jail to the courthouse, in obedience to the writ of habeas corpus. The habeas corpus proceedings were instituted about 1:30 or 2 o’clock.. Appellant says he did not see Ed-monson until about 7 o’clock, when he (Ed-monson) came for him to carry him to the courthouse. The custody of appellant during the pendency of the habeas corpus proceedings does not constitute false imprisonment, because the appellant was then under the authority of the writ of habeas corpus until the court determines whether it is proper to discharge or remand him absolutely. After the issuance and service of the writ. Edmon-son had no authority during that time in acting or giving any directions touching the appellant, further than to obey the writ and bring him before the court. Barth v. Clise, Sheriff, 12 Wall. 401, 20. L. Ed. 393; Church on Habeas Corpus (2d Ed.) §§ 175, 176 ; 29 C. J. 154. When the court had fixed the amount of the bond, it was the duty of Ed-monson to hold the appellant in his custody until satisfactory bail had been furnished, and the record shows that this was not done until Wednesday morning, at which time Edmonson released him from custody.

The only other supposable theory upon which Edmonson could be held liable in this action is because of the conduct and acts of his deputies, Watts and McClendon.

The uncontradicted evidence shows that the deputies acted without the knowledge or consent of Edmonson in bringing appellant from Crowell and confining him in the jail at Vernon. So far as this record shows, the jailer acted upon the orders of the two deputies. He had no discretion in the matter and no wrong is charged against him. Edmonson, being ignorant of that proceeding, was not liable. Meyer et ux. v. Monnig D. G. Co. (Tex. Civ. App.) 189 S. W. 80. It may be admitted that under C. C. P. 1925, arts. 212, 213, and 215, that the detention and incarceration of appellant by the deputies amounts -to false imprisonment. R. S. 1925, art. 6870, provides that sheriffs shall be responsible for the official acts of their deputies. The rule seems to be settled in this state that a sheriff is not responsible for the acts of his deputy in arresting and imprisoning one accused of crime without a warrant, unless the crime was committed within the presence or hearing of the deputy, or the arrested party is guilty of a breach of the peace, and the cases announce the rule that an arrest and imprisonment by a deputy under any other circumstances are not official acts within the meaning of the statute for which the sheriff is liable. King v. Brown, 100 Tex. 109, 94 S. W. 328; Brown v. Wallis, 100 Tex. 546, 101 S. W. 1071, 12 L. R. A. (N. S.) 1019; Maddox v. Hudgeons, 31 Tex. Civ. App. 291, 72 S. W. 414.

Finding no reversible error, the judgment is affirmed.
      <§^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HALL, C. J.

text:
    SOUTH PLAINS COACHES, Inc., v. BEHRINGER.
    (No. 2947.)
    Court of Civil Appeals of Texas. Amarillo.
    Jan. 18, 1928.
    Rehearing Denied March 4, 1928.
    1. Pleading 216(2) — In considering exceptions urged against sufficiency of allegations of negligence and injuries in petition, facts set up in supplemental petition caniiot be considered (District and County Court Rules 1-15).
    In considering effect of exceptions urged against sufficiency of allegations of negligence and injuries in petition, facts set up in supplemental petition cannot be taken into consideration, since under Rules prescribed for District and County Courts No. 1-15, inclusive, plaintiff must in original petition or amendment thereof state all facts on which cause of action is founded, and office of supplemental petition as defined by rules is to reply to last preceding pleading of the opposite party. .
    2. Carriers &wkey;>3l4(3)— Petition in action by bus passenger for injuries sufficiently charged negligence in operating bus in violation of statutes (Pen. Code 1925, arts. 789, 790, 793, 794, 799, 801, 813).
    Petition in action for personal injuries sustained by bus passenger in collision with automobile Held to sufficiently charge negligence in-operating bus in violation of Pen. Code 1925, arts. 789, 793, relating to rate of speed, articles-790, 794, relating to careless driving, article-799, relating» to defective brakes, article 813-requiring chauffeurs of such vehicles to -be licensed, and article 801 defining law of road.
    3. Pleading <&wkey;-l 2 — General allegation Is sufficient as to matters peculiarly within knowledge of defendant.
    As to facts alleged to constitute negligence-which are peculiarly within knowledge of defendant, general allegation is sufficient.

      4. Damages i&wkey;l58(l) — Generally, personal injuries must be specifically alleged and evidence of other injuries is not permissible unless they are natural and proximate result thereof.
    General rule is that personal injuries must be specifically alleged, and that evidence of other injuries is not admissible unless they are natural and proximate result of injuries alleged.
    5. Damages <&wkey;458(l)--Al!egation that plaintiff’s head was badly cut, bruised, and scalped held insufficient to admit testimony regarding ; fracture of skull and bone over eye.
    Allegation that plaintiff’s head was badly cut, bruised, and scalped, and that such injuries crazed and dazed him and he was unconscious for some period thereafter, and that an operation was necessary to be performed on his head and sew back his scalp, held not sufficient to admit testimony to effect that there was fracture of skull and bone over one eye.
    6. Damages <&wkey;l58(l) — Allegation that plaintiff’s head was cut, bruised, and scalped held insufficient to base hypothetical question regarding concussion of brain resulting.
    Allegation that plaintiff’s head was badly cut, bruised, and scalped, and that such injuries crazed and dazed him and he was unconscious for some period thereafter, and that an operation was necessary to be performed on his head and sew back his scalp, held not sufficient on which to base hypothetical question propounded to doctor by which it was attempted to show that concussion of brain would probably result from injuries, since fracture of skull and concussion of brain do not naturally, necessarily, and proximately result from cuts and bruises of head and from heing scalped.
    7. Damages <&wkey;l58(l) — Allegations that plaintiff’s body was bruised and injured held too general to admit of proof of injuries not elsewhere specifically alleged.
    Allegation that plaintiff’s body was bruised and injured, without stating nature and location on. body of such injuries, field too general to admit of proof of injuries not elsewhere specifically set out. •
    8. Damages <&wkey;!58(7) — Allegation that ligaments and nerves of plaintiff’s head, neck, and shoulders were permanently injured held sufficient to admit evidence of such injuries.
    Allegation that ligaments and nerves of plaintiff’s head, neck, and shoulders were seriously and permanently injured held sufficient as against exceptions urged, and under allegation any serious and permanent injury to ligaments and nerves of plaintiff’s head, neck, and shoulders was admissible.
    9. Estoppel <&wkey;9 — Jury’s finding that bus passenger’s release of claim for damages for injuries was void did not bind defendant’s in-, surer not party to suit.
    Jury’s finding that release executed to defendant bus company’s insurer and defendant of claims for damages for injuries sustained in bus collision 'was void did not bind insurer not party to' suit.
    10. Parties t&wkey;3l — In action by bus passenger for injuries, bus company’s insurer to whom plaintiff executed release of claim for damages and assigned rights of action against others held not necessary party, and plea in .abatement based on release was properly overruled.
    In action by bus passenger for injuries sustained in collision between bus and an automobile, defendant bus company’s insurer, to whom plaintiff had executed release of claim for damages against both bus company and insurer and assigned rights of action against persons responsible for damages, was not necessary party since it could not sue defendant, and plaintiff’s possible cause of action against others was not involved, and court correctly overruled plea in abatement based on release.
    11. Damages <&wkey;I4l — Plaintiff suing for personal injuries need not allege measure of damages.
    In action by bus passenger for personal injuries sustained in collision between bus and automobile, it was not necessary for plaintiff to allege measure of damages.
    12. Appeal and error <&wkey;1060(1) — In bus pas- . senger’s action for injuries, plaintiff’s attorney’s statement in argument, that if jury said plaintiff knew import of release he signed plaintiff would lose case, held reversible error.
    In action by bus passenger for personal injuries sustained in collision between bus and automobile, in which defendant pleaded release of claims for damages, plaintiff’s attorney’s statement, in arguing case to jury, while discussing written release and assignment, that “if you say that man (the plaintiff) did know full import of what he was signing then we lose case,” where plaintiff claimed he did not know full import of release he signed, held to constitute reversible error.
    13. Damages &wkey;>63 — Where plaintiff asked damages for ipedical bills, court properly refused to credit amount paid plaintiff for same on damages found by jury for personal injuries.
    Where bus passenger sued for damages for medical, doctor’s, and hospital bills in sum of $350, which item was settled for $150, and also claimed damages on account of personal injuries, payment of the $150 did not affect plaintiff’s right to recover by reason of personal injuries alleged, and court properly refused to credit such amount on the $3,000 damages found by jury for personal injuries.
    14. Damages <&wkey;>144r-Plaintiff’s allegations in suit for personal injuries regarding loss of earnings held not sufficiently specific.
    In action by bus passenger for personal injuries, plaintiff’s allegations with reference to loss of his earnings held not sufficiently specific, where he did not allege what time had been lost nor amount due him by reason of such loss.

      15. Appeal and error <&wkey;>742(5) — Proposition under assignments of error that court erred in refusing to give defendant’s requested charges of certain numbers held insufficient.
    Assignments of error regarding refused instructions brought forward in brief as propositions stating “court erred in refusing to give defendant’s special requested charge No.-” held not sufficiently briefed to entitle them to consideration.
    16. Appeal and error &wkey;>730(I) — Assignments of error predicated on court’s refusing requested charges should specifically set out error.complained of.
    Assignments of error predicated on action of court in refusing requested charges should specifically set out error complained of.
    17. Appeal and error &wkey;>730(l) — Assignments of error to refusal of charges must point out error and show charges were not covered by general charge and were justified by evidence.
    Assignments of error to refusal of special charges must point out error and show that requested charges were not covered by general charge and were justified by evidence.
    Appeal from District Court, Lubbock County; Clark M. Mullican, Judge.
    Action by A. A. Behringer against the South Plains Coaches, Inc. Prom a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    John H. Awtry, of Dallas, and Lockhart & Garrard and P. D. Brown, all of Lubbock, for appellant.
    Vickers & Campbell and Walter P. Schenck, all of Lubbock, for appellee.
   HALL, C. J.

The appellee, Behringer, instituted this suit against appellant company to recover damages resulting to him while a passenger upon one of appellant’s interurban busses, occasioned by a collision en route between the bus and a Chevrolet car driven by third parties. The collision occurred upon a public highway at night.

The ease was submitted to a jury upon special issues and resulted in a verdict and judgment in appellee’s favor in the sum of $3,000, with interest and eostsi

On account of numerous contentions attacking the sufficiency • of plaintiff’s allegations of negligence and damages, it is necessary to set out the facts stated in the petition relative to these contentions, which we do, as follows:

“On the occasion when he was injured, the defendant negligently and carelessly operated and drove said automobile or coach in which plaintiff was riding at a dangerous and negligent rate of speed of 35 miles and more per hour on an average, and when on the highway, passing another automobile, driven in the opposite direction, such car was being run at a rate of speed exceeding 35 miles per hour, and the driver thereof negligently collided or caused to be collided said coach with another automobile, and threw the coach or automobile into the ditch, and plaintiff was seriously and permanently injured as the direct and proximate result of such negligence. He further shows: That the brakes or steering wheel of the coach of the defendant was defective and was not sufficient to control the movements of said car to stop it and get it under control when necessary, and that this said negligence was the direct and proximate cause of the injuries sustained by plaintiff. * * * That the driver of the automobile he was riding in was negligent and careless in the operation of same and never operated it with safety for the plaintiff. That said driver never properly observed the law of the road. He never had his car under control when meeting.and passing automobiles traveling in an opposite direction. That said driver was unacquainted with the conditions of said road or else negligently violated same. That he was without a proper license as a chauffeur to operate said car and this with the knowledge of the defendant. He never had brought his car under control when meeting and passing said automobile he collided with. * * * And at the time the car in which he was riding was violently driven into a ditch or gully by the side of the highway with great force and violence, and he was thrown from the rear seat of said coach or automobile over the other seats therein and through the windshield head foremost, and as a result his head was badly cut and bruised and scalped. Such injuries crazed and dazed him, and he was unconscious for some period thereafter. His body was bruised and injured, and the ligaments and nerves of his head, neck, and shoulders were seriously • and permanently injured. As a result, a considerable amount of blood was lost and a surgical operation was necessary to be performed on his head and sew back his scalp. His head is disfigured as well as his forehead, and he is seriously and permanently injured and has suffered and sustained actual' damages in the sum of $10,000,” etc.

By a second amended original answer, the defendant pleaded for the first time in abatement an instrument in writing signed by the plaintiff on November 19, 1926, which is as follows:

“Receipt is hereby acknowledged from the American Fidelity & Casualty Company, Inc., Richmond, Va., of the sum of amount to cover hospital and doctor bills to date of dismissal from Lubbock Sanitarium, in full settlement and final discharge of any and all claims or demands by reason of damage, loss or injury which heretofore has been or which hereafter may be sustained by A. A. Behringer, in consequence of an accident occurring on or about the 18th day of November, 1926, releasing said American Fidelity & Casualty Company, Inc., of Richmond, Va., and South Plains Coaches, Inc., from all further liability. And in further consideration of said sum of money t(¡> me in hand paid in settlement aforesaid and pursuant to the terms and conditions of the policy of the assured, I do hereby assign, make over, subro-gate, and transfer to the said American Fidelity & Casualty Company, Inc., of Richmond, Va., all claims, rights, and choses in action which I now have or which I may hereafter have against any and all persons lawfully responsible for thq damage, personal or property, on or about tiie date aforesaid.”

' This instrument is witnessed by M. C. Over-ton and C. W. Jones.

Following the plea in abatement, the answer contains numerous exceptions which will be hereinafter considered, a general denial, and a plea of accord and satisfaction as evidenced by the foregoing instrument. It is further alleged that the injury resulted by reason of the negligence of the driver of the Chevrolet automobile with which defendant’s bus collided, and by reason of the negligence of the driver of a certain wagon which was parked on the road at the time and place of the accident. It is further alleged that the injuries resulted from an unavoidable accident for which the defendant is in no way responsible.

The plaintiff filed a supplemental petition, in which he more specifically set out the grounds of negligence and described his injuries. t

In considering the effect of the excep^-tions referred to, urged against the sufficiency of the allegations of negligence and injuries in the petition, ■ the facts set up in the supplemental petition cannot be taken into consideration. Under the rules prescribed for the district and county court numbered 1 to 15 inclusive, the plaintiff must, in his original petition or in some amendment, thereof, state all the facts upon which his cause of action is founded, and in considering the effect of a demurrer, the sufficiency of such allegations cannot be aided by additional facts set up in a supplemental petition, because the office of a supplemental petition, as defined by the rules, is to reply to the last preceding pleading of the opposite party. Crescent Ins. Co. v. Camp, 64 Tex. 521; Glenn v. Dallas County Bois D’Arc Island Levee District, 114 Tex. 325, 268 S. W. 452; Schaff v. Perdue (Tex. Civ. App.) 254 S. W. 151; First State Bank of Terrell v. Rice (Tex. Civ. App.) 251 S. W. 284; Gossett v. Vaughan (Tex. Civ. App.) 173 S. W. 933

In response to the special issues submitted, the jury found: (1) That the driver of the autobus was guilty of negligence immediately preceding and at the time of the accident ; (2) that such negligence was the proximate cause of the accident; (3) that the collision was. not due to an unavoidable accident; (4) that at the time the plaintiff signed the written release and transfer he was incapable of understanding its nature and effect; (5) that the attorney representing the defendant who secured his signature thereto did not misrepresent to plaintiff the nature and effect of the instrument; and (6) that as a result of the accident, plaintiff has suffered damages in the sum of $3,000.

The charge was not objected to because the court failed to submit the several alleged acts of negligence separately. The statement of facts Contains 138 closely written pages, and we are not required to read it in order to determine which of the specific acts of negligence are supported by'the evidence.

The Penal Code (1925) provides by articles 789 and 793 what the rate of speed of such vehicles upon the public highway shall be. Articles 790 and 794 relate to careless driving.. Article 799 relates to defective brakes. Article 813 requires chauffeurs of such vehicles to be licensed, and article 801, in numerous subdivisions, defines the law of the road. It will be seen, in a general way, that the plaintiff’s original petition alleges acts of negligence referable to some of these statutory requirements and inhibitions, and, as against the demurrers urged, we think the petition, in charging negligence in the several particulars set out therein, was sufficient. Some of the facts which are alleged to constitute negligence are allegations of matters peculiarly within the knowledge of the defendant, and, as to such facts, a general allegation is sufficient. Missouri-Pacific Ry. Co. v. Hennessey, 75 Tex. 155, 12 S. W. 608; Wilson Hydraulic Casing Pulling Machine Co. v. James (Tex. Civ. App.) 271 S. W. 424.

Several of the exceptions attack the petition because it fails to allege the nature, character, and extent of the plaintiff’s injuries with sufficient definiteness and particularity.

The general rule is that such injuries must be specifically alleged and that evidence of other injuries is not admissible unless they are the natural and proximate result of the. injuries alleged. Gulf, C. & S. F. Ry. v. McMannewitz, 70 Tex. 73, 8 S. W. 66; T. & P. Ry. Co. v. Curry, 64 Tex. 85; Fort Worth & R. G. Ry. Co. v. White (Tex. Civ. App.) 51 S. W. 855; Mo. Pac. Ry. v. Mitchell, 72 Tex. 171, 10 S. W. 411.

The allegation that plaintiff’s head was badly cut, bruised and scalped atad that such injuries crazed and dazed him and he was unconscious for some period thereafter, and that an operation was necessary to be performed on his head and sew back his scalp, are not sufficient to admit testimony elicited from three witnesses-to the effect that there was a fracture of the skull and bone over one eye, nor was it sufficient upon which to base the hypothetical question propounded to one doctor by which it was attempted to show that concussion of the brain would probably result from the injuries, since fracture of the skull and concussion of the brain do not naturally, necessarily, and proximately result from cuts and bruises of the head and from being scalped. These injuries imply surface injuries which would not necessarily result in a fracture of the skull. So. Pac. Co. v. Martin, 98 Tex. 322, 83 S. W. 676; Dallas Consolidated Elec. St. Ry. Co. v. McAllister, 41 Tex. Civ. App. 131, 90 S. W. 933; Dallas Consol. Electric St. R. Co. v. Hardy (Tex. Civ. App.) 86 S. W. 1053; Dallas Consol. Electric St. Ry. Co. v. Ison, 37 Tex. Civ. App. 219, 83 S. W. 408; Suderman & Dolson v. Woodruff, 47 Tex. Civ. App. 229, 105 S. W. 217.

We think the court erred in admitting this testimony. That' part of the petition which alleges that his body was bruised and injured, without stating the nature and location on the body of such injuries, was subject to the exception and is too general to admit of proof of injuries not elsewhere specifically set out. Fort Worth & D. C. Ry. Co. v. Morrison, 58 Tex. Civ. App. 74, 123 S. W. 212.

The allegations that the ligaments and nerves of his head, neck, and shoulders were seriously and permanently injured is sufficient as against the exceptions urged, and under the allegation any serious and permanent injury to the ligaments and nerves of his head, neck, and shoulders would be admissible. This disposes of numerous propositions presented urging error as to the court’s rulings upon numerous exceptions and the admission of testimony relative to the acts of negligence and injuries alleged.

Under several propositions, it is insisted that because of the written release and assignment to the Fidelity & Casualty Company, Inc., that said company is a necessary party to1 the suit and that the defendant’s plea in abatement, based upon said writing, should have been sustained. There is no ambiguity apparent in the writing, and none arises by reason of the evidence introduced relating to it.

The first paragraph is a receipt for the amount necessary to cover hospital and doctor’s bills, and recites that it is in full settlement of any and all claims for damages or injury sustained by Behringer, in consequence of the accident, and releases the defendant and the Fidelity & Casualty Company, Inc., from liability. In the second paragraph, the plaintiff simply assigns to the Fidelity & Casualty Company all claims, rights and choses in action which he may have against any person who is responsible for his injuries.

Construing the instrument reasonably and as a whole, its effect is to release the very damages claimed in this suit against the defendant, and an assignment to the Fidelity & Casualty Company of any right of action he might have against the driver of the Chevrolet car, with which the motorbus collided, or the driver of the wagons, which were parked' upon the roadside, or the driver of the motorbus. It does not purport to release his right of action against the last-named parties, because it specifically states that he is releasing the liability of the Fidelity & Casualty Company and the defendant in the suit. It would be an unreasonable construction of the last paragraph to say that he was transferring to' the Fidelity & Casualty Company his cause of action against it and the defendant, after having previously released them from liability. Since the Fidelity. & Casualty Company was not a party to this action, a settlement of the cause of action asserted herein must be construed to be only a settlement of his suit against the defendant and the American Fidelity & Casualty Company, which, it appears from the record, had insured the defendant against such damages. If it is valid, as a release, of course he could not maintain an action against either of these parties. The jury said it was void, but this does not bind the Fidelity & Casualty Company since it is not a party to the suit. We conclude that the Fidelity & Casualty Company was not a necessary party. The reason of the rule which requires all necessary parties to be made parties plaintiff or defendant is to avoid a multiplicity of. suits and settle the controversy as to all parties in one action. The defendant cannot complain of this failure to make the Fidelity & Casualty Company a party because the Fidelity & Casualty Company could not sue defendant after a judgment rendered in this action for either party. Since the plaintiff’s possible cause of action against the driver of the bus, the Chevrolet car, or the wagons is not involved in this suit, certainly the Fidelity & Casualty Company . is not a necessary party hereto. We therefore think the court correctly overruled the plea in abatement.

It is not necessary for the plaintiff to allege the measure of his damages. Settegast v. Foley Bros. Dry Goods Co. (Tex. Civ. App. 297 S. W. 677; Cummings v. Nix (Tex. Civ. App.) 279 S. W. 484; Ara v. Rutland (Tex. Civ. App.) 172 S. W. 993.

One of the attorneys for plaintiff, in arguing the ease to the jury, while discussing the written release and assignment, used the following language: “If you say that man (the plaintiff) did know the full import of what he was signing, then we lose the case.” We think this constitutes reversible error. Rowley v. Braly (Tex. Civ. App.) 286 S. W. 241. Since this error will probably not occur upon another trial, it will not be further discussed.

It is also insisted that the court erred in not crediting the $3,000 damages found by the jury with the amount of $150, which the defendant had paid as hospital bills. We overrule this contention. The plaintiff sued for damages for medical, doctor’s, and hospital bills in the sum. of $350. This was a separate item of damages from that claimed on account of the personal injuries. Since this item was settled for $150, it was no longer an issue in the case, but its payment in no way affected the plaintiff’s right to recover by reason of the personal injuries alleged and should not have been credited upon the amount of the verdict as rendered.

Plaintiff’s allegations with reference to the loss of his earnings were probably not sufficiently specific as against the exceptions urged, since he did not allege what time had been lost nor the amount due him by reason of such loss.

Under several propositions, it is insisted that the court erred in refusing special requested charges. The assignments of error are brought forward in the brief as propositions, the following being typical of all five propositions urged: “The court erred in refusing to give defendant’s special requested charge No. 1.” Nowhere in the statement or argument following these propositions are the requested charges set out either in substance or in hsac verba. These alleged errors are therefore not sufficiently briefed to entitle them to consideration.

Assignments of error predicated upon the action of the- court in refusing requested charges should specifically set out the error complained of. Moore v. Waco Building Ass’n, 92 Tex. 265, 47 S. W. 716; Clarendon Land, etc., Co. v. McClelland Bros., 86 Tex. 179, 23 S. W. 576, 1100, 22 L. R. A. 105; Lemp v. Armengol, 86 Tex. 690, 26 S. W. 941; Wilson v. Simpson, 68 Tex. 313, 4 S. W. 839; Blake v. Fire Ins. Co., 67 Tex. 160, 2 S. W. 368, 60 Am. Rep. 15; Mo. Pac. Ry. Co. v. James (Tex. Sup.) 10 S. W. 332; Mitchell v. Robinson (Tex. Civ. App.) 136 S. W. 501; Funk v. Miller (Tex. Civ. App.) 142 S. W. 24; Ford Motor Co. v. Freeman (Tex. Civ. App.) 168 S. W. 80; Goggan & Bro. v. Goggan (Tex. Civ. App.) 146 S. W. 968.

Assignments of error to the refusal of special charges must point out the error and show that the requested charges were not covered by the general charge and were justified by the evidence. Chicago, etc., Ry. Co. v. Trout (Tex. Civ. App.) 152 S. W. 1137.

For the reasons stated, the judgment is reversed and the cause remanded.
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