author: BAUGH, J.

text:
    KINCAID v. LEE COUNTY STATE BANK.
    (No. 7181.)
    Court of Civil Appeals of Texas. Austin.
    Feb. 23, 1928.
    Rehearing Denied March 21, 1928.
    1. Bills and notes <§=>497(3) — Bank suing on collateral note invalid between original parties has burden of pleading and proving loss of original debt if denied recovery (Negotiable Instruments Act, § 57).
    Bank suing on note held by it as collateral, and which was invalid as between original parties because it was given for gambling debt, has burden of affirmatively pleading and proving that it would lose its original debt if it did not collect collateral note, and Negotiable Instruments Act, § 57 (Rev. St. 1925, art. 5935), does not relieve bank from such burden.
    2. Bills and notes <§=>338 — Bank making itself payee of collateral note which was given in renewal of invalid note payable to another held not “holder in due course” (Negotiable Instruments Act, §§ 52, 57).
    Though, generally,' a bona fide holder of a collateral note is a holder for value, bank which voluntarily made itself payee in collateral note' on which it sued and which was given in renewal and extension of an invalid note payable to-another héUÜ not a “holder in due course,” under Negotiable Instruments Act, §§ 52, 57 (Rev. St. 1925, art. 5935).
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Holder-in Due Course.] •
    3. Bills and notes <§=>357 — Holder of collateral, unenforceable as between original parties, can recover only amount sufficient to pay original debt.
    Notwithstanding the clear and explicit language of Negotiable Instruments Act, § 57 (Rev. St. 1925, art. 5935), a holder of a collateral note, unenforceable as between original, parties, can recover only a sufficient amount thereon to pay the original debt.
    4. Bills and notes <§=>357 — Holder of collateral note void as between original parties can collect thereon only when necessary to prevent loss to holder.
    Where a collateral note is void as between-original parties thereto, a holder thereof can collect it only if and when such collection is necessary'to prevent loss to him.
    5. Bills and notes <§=>334 — Holder of collateral-' note could not, after notice of its infirmity, collect any sum added to original debt after such notice.
    Bank suing as holder of collateral note-could not, after it was notified of infirmity in. note in defendant’s answer, collect any sum added by it to original debt after such notice.
    Appeal from District Court, Lee County;. M. C. Jeffrey, Judge.
    Action by the Lee County State Bank against F. T. Kincaid. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded for new trial.
    G. B. Fenley, of Uvalde, and W. B. Tea-garden, of San Antonio, for appellant.
    E. T. Simmang, of Giddings, for -appellee..
   BAUGH, J.

This appeal is from a judgment for $6,071.97, in favor of the Lee County State Bank, as payee, hereinafter referred to as the bank, against F. T. Kincaid, as maker, and being the amount of the principal, interest, and attorney’s fees of a note for $5,000. In its original petition the bank sued as the owner and payee of said note. Kin-caid defended on the ground that said note-was given in renewal and extension of a. note formerly given to J. H. Mundine in payment of a gambling debt incurred in a poker game in Mexico City. By supplemental petition the bank alleged that on or about November 7, 1923, it obtained said note for a-valuable consideration, before maturity,, without notice of any vice or infirmity therein, as collateral security to an indebtedness of J. H. Mundine and R. L. Peebles to said bank, of approximately $10,000; that said collateral note had been renewed from time to time, in which last renewal the bank itself, instead of Mundine, was named as payee, but that same was at all times held by the bank as collateral security for the principal debt of Mundine and Peebles.

The evidence shows conclusively that the only consideration for the original note was the gambling debt, and that it was wholly unenforceable by Mundine against Kincaid. It also shows that the bank paid Mundine no money for the renewal note, nor did it give him any credit therefor on his and Peebles’ indebtedness to the bank; that it held same entirely as collateral; and that it brought suit thereon at the request of Mundine.

The first contention of appellant is that, upon his showing that the note so held by the bank as collateral was illegal and invalid as between the original parties thereto, the duty then devolved upon the bank to show the amount of the original debt due by Mundine to the bank, and that unless the bank be permitted to collect the note in question it would lose its original debt. We sustain this contention. Nowhere did the bank plead that it would lose its debt if it did not collect this collateral, nor does the evidence show that it would. Nor was there any competent evidence showing how much the original debt either of Mundine, or of Mun-dine and Peebles, to the bank was at the time said collateral note was taken, at the time the suit was filed, or at the time Kincaid filed his answer setting up the invalidity of said note. The bank held other collateral notes secured by mortgages on live stock, the amount or value of which was not proved. The cashier of said bank also testified that Mundine was worth, above exemptions and debts, between $50,000 and $75,000; and that Peebles was worth, above exemptions, approximately $10,000. In brief, the bank wholly failed either to plead or prove that it would lose its original debt against Mun-dine and Peebles, if denied a recovery against Kincaid on the collateral note sued upon.

The equitable doctrine is now well established that such duties are essentially incumbent upon the holder of collateral where such collateral is invalid as between the original parties thereto, and such facts must be affirmatively alleged and proved. City Nat. Bank of Galveston v. Underwood (Tex. Civ. App.) 293 S. W. 941, writ of error refused; City Nat. Bank v. Pearce (Tex. Civ. App.) 291 S. W. 291, and eases there cited; Farwell v. Tingle (Tex. Civ. App.) 280 S. W. 232.

Appellee insists, however, that it was a “holder in due course,” under section 52 of the Negotiable Instruments Act, and under section 57 thereof entitled to recover the full amount of said note, regardless of any in-' firmity in the note as between the original parties thereto. See article 5935, R. S. 1925.

It is a general rule that a bona fide holder of collateral is a “holder for value.” It has also been held by the Supreme Court that the payee in a note is not a “holder in due course,” under. the Negotiable Instruments Act. J. I. Case Threshing Machine Co. v. Howth, 116 Tex. 434, 293 S. W. 800. In the instapt case the bank had voluntarily made itself a payee in the note sued upon, which was given in renewal and extension of an invalid note payable to Mundine and held by it as collateral. It thereafter sued upon said note asserting title thereto in its own name- as payee. Only in reply to defenses thereto did said bank by supplemental petition, not by amended petition, allege that said note was held by it only as collateral.

Regardless of that, however, and conceding that said bank was a “holder in due course,” it was not relieved by section 57 of the Negotiable Instruments Act from the burdens above set forth, imposed upon it on equitable grounds. Notwithstanding the clear and explicit language of section 57, it is now well settled that a holder of collateral, unenforceable as between the original parties, can recover only a sufficient amount thereon to pay the original debt. Chapman v. Dallas (Tex. Civ. App.) 267 S. W. 535; Peterson v. Rochelle (Tex. Civ. App.) 287 S. W. 1105. And equity adds further, where such collateral is void as between the original parties thereto, that such holder can collect same then only if and when such collection is necessary to prevent loss to him. To hold otherwise would permit, as suggested in appellant’s brief, such holder to use as a sword what the law intended to be used only as a shield. If not in fact necessary to pay Mundine’s debt to the bank, the collection of said note would enable the bank to do for Mundine, and at his request, what he could not do for himself, i. e., collect a gambling debt.

There was testimony which indicated that after Kincaid filed his answer in October, 1926, to the bank’s suit, setting up the invalidity of said note, Mundine and Peebles’ debt to the bank was reduced to about $5,-000, and that additional credit was extended to them by the bank after that. Certainly, the bank cannot enfold itself in the cloak of good faith as to any credit extended on the validity of said Kincaid note, after it had been thus notified of its infirmity in appellee’s answer to its own suit thereon; and in no event would it be entitled to collect out of' its collateral any sum added by it to the original debt of Mundine and Peebles after such notice.

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

Reversed and remanded.
      <§=For otter cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: GALLAGHER, C. J.

license: Public Domain

text:
    AMERICAN SURETY CO. OF NEW YORK v. WEST STATE BANK.
    (No. 620.)
    Court of Civil Appeals of Texas. Waco.
    March 8, 1928.
    Rehearing Denied April 5, 1928.
    1. Insurance <§=>655(3)— Surety, sued on fidelity bond, cannot prove alleged false statements in application, where application is not attached to bond (Rev. St. 1925, arts. 5044 and 5049).
    Under Rev. St. 1925, arts. 5044 and 5049, surety, in suit on fidelity bond, could not prove defense of alleged false or fraudulent statements made in application, where such application was not attached to the fidelity bond.
    2. Insurance <§=>655(3)— Surety, sued on fidelity bond, cannot prove fraudulent concealment of facts by employer, where application was not attached to bond (Rev. St. 1925, arts. 5044, 5049).
    Under Rev. St. 1925, arts. 5044, 5049, surety, sued on fidelity bond, is precluded from proving that employer failed voluntarily to disclose facts within his knowledge material to the risk, or fraudulently concealed facts from surety, where application for bond, which included certificate of employer, was not attached to the bond.
    3. Evidence <§=>250< — Declarations or admissions of principal, becoming part of res. ges-tae, are evidence against surety.
    Declarations or admissions made by principal in the course of the performance of a business for which a surety is bound, so as to become part of the res gestae, are evidence against the surety.
    4. Evidence <§=>250 — Entries made by employee covered by fidelity bond in ordinary discharge of his duty are admissible against surety.
    Entries made by an employee covered by a fidelity bond in books of his employer, kept by him in ordinary discharge of duties of his employment,- are admissible -against surety as admissions or declarations tending to establish default or defalcations of employee.
    5. Evidence <§=>376(1) — Ledger sheet and passbook prepared by bank employee in regular course of his duties held admissible as against objection that they were not properly authenticated.
    In action on fidelity bond for defalcations of bank employee, misplaced ledger sheet found after employee’s discharge, and a passbook, which were prepared and entries made in them by employee in regular course of duties as an employee of the bank, held, properly admitted as against objection that they were not properly authenticated or shown to be correct.
    Appeal from District Court, McLennan County; Sam R. Scott, Judge.
    Action by the West State Bank against the American Surety Company of New York. Judgment for plaintiff, and defendant, appeals.
    Affirmed.
    Spell, Ñaman & Penland, of Waco, for appellant.
    Sleeper, Boynton & Kendall,' of Waco, for appellee.
   GALLAGHER, C. J.

The West State Bank, appellee herein, sued the American Surety Company of New York, appellant herein, for ⅜1,541.59 upon a fidelity bond executed by said company as surety for one August J. Peters, an employee of said bank. Appellee alleged that said Peters embezzled, wrongfully abstracted, and willfully misapplied to his own use and benefit the sum sued for. Appellant defended by a general denial and an allegation that said Peters was addicted to gambling; that he had, prior to the issuance of said bond, without authority, signed the names of depositors to cheeks on said bank, and had obtained money thereon from said bank, and had embezzled, wrongfully abstracted, and willfully misapplied the money so obtained; that, by reason of such facts, he was dishonest, morally delinquent, and utterly unfit for a position of trust. Appellant further alleged that the issuance of said bond was procured by appellee, acting through its president; that all said facts were known to appellee’s said president; that he had abundant opportunity to disclose said facts to. appellant and to its agent taking the application for said bond prior to the issuance thereof; that it was his duty to disclose the same, and all the same, to appellant’s said agent, and that he wholly neglected and failed to discharge such duty; that none of said facts were known to appellant, and that, if they had been known, it would not have become surety on such bond; that by reason of the premises said bond never became a valid and binding obligation, but was wholly void, and of no force and effect.

The bond sued on was dated September 1, 1924, and was by its terms to remain in force for one year. Appellee’s president applied to appellant’s agent, who had an office in the bank at the time, for the issuance of the same. Some time during the summer preceding the issuance of said bond, appellee’s said president discovered that said Peters, who was about 20 years of age at the time, and employed as a bookkeeper in said bank, had been signing his mother’s name to checks on her account in said bank, withdrawing the amount of such checks in money therefrom and appropriating the same. Such checks amounted in the aggregate to between $400 and $500. Appellee’s said president immediately took the matter up with young Peters’ mother, who finally consented to recognize said checks as proper charges against her account. During the conversation with reference thereto, he advised her that, if she refused to recognize said checks, trouble to her said son would probably result. He testified in that connection that he had in mind making a claim on a fidelity bond issued by another company as surety for said Peters, which bond was in force at that time.

Mrs. Peters testified that he promised in that connection to have a conversation with young Peters about his conduct, and to reprove him therefor; to raise his salary; and to arrange for him to make a monthly deposit to her account -until the amount of money so withdrawn was returned. Peters continued in the employ of appellee until April 13, 1925, when he was discharged for gambling. He immediately disappeared, and his whereabouts were unknown at the time of trial. Shortly after his discharge, it was found that the account of his grandmother, Mrs. Skopic, had been removed from the active ledger, and that, when the same was restored thereto, the books were out of balance in the sum of $1,541.59, and a shortage of that, amount existed in the cash on hand in said bank. The evidence is sufficient to sustain a finding by the trial court that said sum was embezzled, wrongfully abstracted, and willfully misapplied by said Peters to his own use and benefit. It was agreed on the trial of the case that appellant’s agent, at the time he received the application for said bond, did not know of any prior default or delinquency on the part of said Peters, and that, if he had known the facts concerning the unauthorized drawing of checks by said Peters upon his mother’s account and his appropriation of the proceeds thereof, he would not have accepted said application. It was also agreed that appellant’s agent in Dallas who issued said bond would not have issued the same if he had known any of said facts. The policy sued on - was introduced in evidence, and did not have attached to it any application therefor, nor was any reference made therein to such application. Appellee, for the purpose of showing that said policy was issued in pursuance of an application therefor in writing signed by said Peters, and that the same included a “Certificate of Employer,” introduced said application in evidence. It appeared therefrom that the same was made on a regular form used by appellant, and the same included as a part thereof a certificate signed by appellee as follows:

“The accounts of the applicant for this bond were last examined on the 30th day of July, 1924, and found correct in every respect. He has been in the service of the employer since the 20th of July, 1923, and has never to my knowledge been in arrears or default.
“Prom all that I know and have heard, I believe him to be entitled to confidence and qualified to discharge the duties of the position named in the within named application. Proper accounts are kept and adequate examinations of his transactions will be made.”

The case was tried before the court and judgment rendered in favor of appellee against appellant for the sum of $1,541.59, the amount sued for. Said judgment is here presented for review.

Opinion.

Appellant’s first proposition 'presented as ground for reversal is that, under the undisputed facts in this case, the trial court should have rendered judgment in its favor on the ground that appellee, .when it had an opportunity to do so, withheld and failed to disclose facts material to the risk insured against by the policy sued on. The Legislature of this state in 1903 (General Laws, p. 94) enacted a comprehensive law prescribing rules to govern in determining the validity and enforceability of contracts of insurance yphen .sought to be avoided by the insurer on the ground of fraud by the insured in securing the same, and the conditions upon which such defense might be made. According to the provisions of said act, no insurance contract thereafter made can be avoided on the ground of misrepresentations in the application therefor or in obtaining and securing the same, unless the insurer, within a reasonable time after discovering the falsity of the representations so made, gives notice that it refuses to be bound by such contract or policy. Said act further provides that every contract or policy of insurance shall be accompanied with a copy of the application therefor and of all questions asked and answers given thereto. The provisions of said act above referred to were, without material change, incorporated in the Revised Statutes of 1911, and retained in the Revised Statutes of 1925 as articles 5044 and 5049 thereof. The provisions óf said article 5049 were considered in Southwestern Surety Insurance Co. v. Hico Oil Mill (Tex. Com. App.) 229 S. W. 479, and construed to be mandatory and conditions precedent to any defense based on alleged false or fraudulent statements made in the application or in securing the contract or policy of insurance. See, also,

National Surety Go. v. Murphy-Walker Co. (Tex. Oiv. App.) 174 S. W. 997, 1004; Southern Surety Co. v. Citizens’ State Bank (Tex. Civ. App.) 212 S. W. 556, 558, 559; Southern Insurance Co. v. Nicholson (Tex. Giv. App.) 292 S. W. 569, 570; National Life & Accident Co. v. Love (Tex. Civ. App.) 282 S. W. 829; National Live Stock Insurance Go. v. Gomillion (Tex. Civ. App.) 178 S. W. 1050, 1051.

Appellant apparently concedes that the rule announced in that case is the established law of this state. It seems to recognize that it is cut off from urging such a defense because it failed to attach to the policy sued on the application therefor. Abandoning any such contention, it seeks to defeat a recoy. ery by appellee on the policy sued on, on the ground tliat the facts in evidence imposed an imperative legal duty upon appellee to voluntarily disclose all that was known to its officers concerning the unauthorized action of Peters in signing his mother’s name to checks on her account and appropriating the moneys withdrawn from the bank thereon. Whether the surety in a fidelity bond seeks to avoid liability thereon on the ground of false representations affirmatively made, or on the ground of failure on the part of the insured to voluntarily disclose facts within his knowledge material to the risk, his defense is based on an allegation of fraud perpetrated by the insured. 12 R. O. L. p. 305, § 66. Our Supreme Court, in Screwman v. Smith, 70 Tex. 168, 173, 7 S. W. 793, said that, in order for a surety to defeat liability on a bond on the ground that he was not informed of facts known to the assured, it should be shown •that there was a fraudulent concealment of facts material for him to know. Our statute deals with the question of affirmative representations, and requires that they shall be material to the risk, and that, to be available as a defense, if false, a copy thereof must accompany the policy.

The statute clearly applies and determines the rights of parties when inquiry is actually made and fully answered, regardless of whether such answer is false or not. It is the duty of the insured, when inquiry is made, to answer the same fully and fairly as he understands the facts on the points inquired about to exist. If he does so, no duty to make a voluntary disclosure can arise. Such duty arises only when no inquiry on the point at issue-is made, and when it appears to the insured that the, insurer, apparently relying on his failure to make any disclosure as an implied representation that there is no material fact to be disclosed, is about to enter into the contract or issue the policy, when he would not do so if the facts so withheld or concealed were known to him. No such case is presented here, and We need not determine whether such defense would be available, notwithstanding our statute, if no representations were made in the application or otherwise, and no questions asked or answered in the negotiations resulting in the issue of the contract or policy of insurance. Appellant, by failing to attach to the policy sued on or to accompany the same with a copy of the application made therefor, including the certificate of employer, which formed a part thereof, is precluded from asserting as a defense thereto that any representations therein made were false or fraudulent, and from asserting that the real facts about which such representations were made differed therefrom and were fraudulently concealed from it. Appellant’s said proposition is overruled.

Appellant presents as ground for reversal the action of the' court in admitting in evidence over its objection a certain sheet from appellee’s loose-leaf ledger, showing Mrs. Skopic’s account to and including December 6,' 1924, and a balance due her at that time of $1,703.54, which sheet, in connection with the .passbook hereinafter referred to, was used as a basis for calculating the amount due her. Appellee offered testimony in connection with said sheet showing that the same was from its regular individual ledger kept by it in the ordinary course of its business; that the entries made thereon had been made by Peters, its regular bookkeeper in charge of said sheet, and two other employees of the bank; that the entries made by the other employees were correct; that up to the date of the last entry thereon its books had been balanced daily, and no error discovered. At the time of trial, Peters, as before stated, was absent, and his whereabouts unknown, and Mrs. Skopic was dead. Appellant’s objection to the introduction of said sheet was, in substance, that the same had not been proved to be correct and to show the actual balance due Mrs. Skopic on that date. The gist of said objection, in view of the testimony above recited, therefore seems to be that the entries made by Peters were not proved by specific testimony to be correct. Peters being absent, the correctness of entries made by him in the books of the bank in the regular course of his duties as one of its bookkeepers could be proved, like any other fact, by circumstances. We think the testimony above recited, in connection with the other circumstances in evidence, was sufficient to sho.w, prima facie at least, that the entries made by him on said sheet were correct. It has been held that declarations or admissions made by a principal in the course of the performance of the business for which a surety is bound, so as to become a part of the res geste, are evidence against the surety Barry v. Screwmen’s Ass’n, 67 Tex. 250, 255, 3 S. W. 261; Keowne v. Love, 65 Tex. 152, 158; Lasater v. Purcell Mill & Elevator Co., 22 Tex. Civ. App. 33, 54 S. W. 425, 428 (writ refused); Brite v. Atascosa County (Tex. Civ. App.) 247 g. W. 878, 881.

While fidelity bonds are regarded as contracts of indemnity or insurance and so-called sureties thereon held liable as primary ob-ligors, the rule just recited has been applied in determining the admissibility of admissions or declarations tending to establish the default or defalcation of the employee; and entries made by the employee in books of his employer kept by him in the ordinary discharge of the duties of his employment are admissible as such admissions. American Indemnity Co. v. W. C. Munn Co. (Tex. Civ. App.) 278 S. W. 956, 957, 958 (writ refused); Webb v. Smith (Tex. Civ. App.) 288 S. W. 624, 626, and authorities there cited. Appellant also as a part of the same proposition presents as ground for reversal the action of the trial court in admitting in evidence over its objection a partially filled sheet from its loose-leaf ledger, beginning with the balance of $1,703.54 on December 6, 1924, and showing deposits to her credit in said account and withdrawals therefrom to and including April 6, 1924, and a balance in said account in her favor on that date of $1,541.59. The testimony disclosed that this sheet was found in the ledger files of appellee, but not at its proper place, several months after the discharge of Peters; that it was prepared, and the entries thereon made, by him; that on or.about May 26, 1925, a check on Mrs. Skopie’s account was presented for payment, and that at that time the only ledger sheet on file in its proper place was the one showing said balance of $1,703.54 on December 6, 1924'; that appellee’s cashier, using said balance of $1,703.54, on December 6, 1924, as a basis, from deposit slips and checks on file, prepared a statement of Mrs. Skopic’s account down to and including April 6, 1925, which statement showed a balance to her credit at that time of said $1,541.59, the same balance shown by said partially filled sheet. Appellant’s objection to the introduction in evidence of said partially filled sheet was that it was not properly authenticated, and that appellee’s cashier, who testified to finding the same and to having prepared the statement aforesaid, did not know of his own knowledge that the items recorded therein were correct.

Appellant also presents in the same proposition as ground for reversal the action, of the court in admitting in evidence, over its objection, Mrs. Skopie’s passbook made for her 'by Peters at the direction of appellee’s eashier, which passbook also showed the state of her account on December 6, 1924, and thereafter to and including April 6, 1925. It seems that said passbook not only contained entries of deposits made by appellee’s employees, but also contained entries made by them of all withdrawals by check. According to the original ledger sheet above referred to, her account was in balance on August 21, 1924, at which time she made a deposit. On November 13, 1924, she made a $1,000 deposit, which was received by appel-lee’s cashier, at which time she complained that she had no passbook. Appellee’s cashier then instructed Peters to prepare a passbook from its books, and the passbook so prepared by him corresponded with said ledger sheet down to and including the deposit made with the cashier on that day.. Nothing was withdrawn from her account until some time in •February, 1925. All other entries in said passbook prior to the discharge of Peters, except the one made by the cashier on November 13, 1924, were made by Peters in the regular course of his duties as an employee of the bank. Appellant’s objection to the introduction of said passbook was that it was not properly authenticated, and that appellee’s cashier, who identified it, did not know of his own knowledge that the entries thereon were correct. We think both the misplaced ledger sheet and Mrs. Skopic’s passbook so prepared and kept were properly admitted in evidence, for the reasons and under the authorities above recited. ,

We have carefully considered the other propositions presented as ground for reversal, and are of the opinion they should be overruled.

The judgment of the trial court is affirmed.
      <§=»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: LEVY, J.

text:
    FARMERS’ & MERCHANTS’ NAT. BANK OF FARMERSVILLE v. HICKMAN et al.
    (No. 3542.)
    Court of Civil Appeals of Texas. Texarkana.
    March 8, 1928.
    1. Bills and notes <§fcv>537(l, 8) — Conflict in evidence whether note was renewal and whether collateral note had been put up to plaintiff’s knowledge and paid held for jury.
    In suit on note against maker and sureties, conflict in evidence whether note sued on was renewal note and whether another note had been put up as collateral to plaintiff’s knowledge and paid, though not applied on original note in suit, was for jury.
    2. Appeal and error <⅜=»1002 — Verdict for sureties on note under special findings of fact by jury on conflicting evidence may not be disturbed on appeal.
    Verdict for sureties sued on note, based on special finding's of fact made under conflicting evidence, as to whether note sued on was renewal note and whether another note had been put up as collateral to plaintiff’s note and paid, but not applied on original note, may not be disturbed on appeal.
    Appeal from District Court, . Collin County; F. E. Wilcox, Judge.
    Action by the Farmers’ & Merchants’ National Bank of Farmersville against R. D. Hickman and others. Judgment for defendants, and plaintiff appeals.
    Affirmed.
    Smith & Abernathy, of McKinney, for appellant.
    Truett & Neathery, of McKinney, for ap-pellees.
   LEVY, J.

The appellant bank brought the suit against R. L. Hickman, A. H. Johnson, and L. R. Latham to recover the principal of $507.65, with interest and attorney’s fees, alleged to be due and owing on the promissory note executed by the three parties named. The defendant R. L. Hickman made no answer, and judgment by default was entered against him. The other two defendants pleaded in denial of liability, in substance, that, although they appear as joint makers of the note, they were in fact sureties of R. L. Hickman; that the present note sued on was a renewal note of the indebtedness of R. L. Hickman; that, as an inducement and as indemnity to defendants to sign the original note as sureties, R. L. Hickman put up as collateral security to the bank a vendor’s lien note for $516.70 owing by H. B. Pruett, and that thereafter H. B. Pruett paid the vendor’s lien note in full to the bank, and that, instead of applying the money to the payment of the note of R. L. Hickman, the bank placed the money to the general credit and use of R. L. Hickman; that the bank at the time of the present renewal note represented to defendants to the effect that the collateral note was not paid, and, relying upon such representation, the defendants signed the present note as sureties. The plaintiff replied to the answer by denial, and specially asserting estoppel by agreed waiver of collateral security at the time of the renewal of the present note.

The jury made special findings of fact, in substance, as follows: (1) That R. L. Hickman placed with the bank a vendor’s lien note for $516.70, signed by H. B. Pruett, as collateral security for the original note. (2) That the cashier of the bank was informed at the time that the note of H. B. Pruett was placed as collateral security of the original note of R. L. Hickman to induce the defendants to sign the original note as sureties, and that they would not otherwise sign the note. (3) That the bank afterwards collected the H. B. Pruett note and placed the money to the personal account of R. L. Hickman without the knowledge and consent of defendants. (4) That the defendants did not agree with the bank at the time of the renewal and extension of the note that they would waive the collateral note ,or waive any defense they might have by reason of their claim that a collateral note had' been deposited with the original note. In keeping with the verdict, the court entered judgment in favor of the sureties.

The points on which the appeal is predicated are that: (1) There is no evidence to sustain the finding of the jury on special issue No. 1; and (2) the finding of the jury on special issues Nos. 1, 2, and 3 ¿re against the preponderance of the evidence.

Considering the entire evidence, and the inferences and conclusions therefrom allowable to a jury, it is thought that it may not be said that there is insufficiency of evidence to sustain the answers of the jury to the several special issues submitted to them. Although there is evidence to the contrary, yet there is some positive testimony going to show that the note sued on was a renewal, with interest included, of the alleged original $400 note, and that the H. B. Pruett note was put up as collateral to the bank’s knowledge. The conflict was for the jury, and this court may not disturb the verdict.

Accordingly the judgment will be affirmed.
      ig=5>Eor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    GIBBENS v. WILLIAMS.
    (No. 7204.)
    Court of Civil Appeals of Texas. Austin.
    March 14, 1928.
    Rehearing Denied April 4, 1928.
    1. Brokers <@=357(2)— Broker producing pur- . chaser to whom, owner sold mules at less price than that at which they were listed may recover commission.
    In action for broker’s commission on sale of mules, plaintiff’s evidence showing property was listed with him, and that he sent purchasers to whom property was sold, held as matter of law to show plaintiff was entitled to commission notwithstanding that owner sold some of mules at less price than! that at which mules were listed.
    2. Brokers <@=352 — Broker furnishing purchaser who purchased on terms satisfactory to owner fulfilled requirement of contract that he “actually sell” property.
    Broker with whom mules were listed for sale, who furnished to owner purchaser who purchased property on terms satisfactory to owner, held to have fulfilled requirement of contract that he “actually sell the mules.”
    [Ed. Note. — For other definitions, see Words and Phrases, Actually Sold.]
    3. Appeal and error <@=»l 177(7) — Where evidence warranted directed verdict for appellant, but case was not fully developed on trial, cause will be remanded.
    Where verdict was directed for defendant at close of plaintiff’s testimony so that case was not fully developed on trial, judgment will not be rendered on appeal notwithstanding that plaintiff’s evidence entitled him to directed verdict in his favor, but cause will be remanded for another trial.
    Appeal from District Court, Schleicher County; J. F. Sutton, Judge.
    Action by John Gibbens against Lee Williams. Judgment for defendant, and plaintiff appeals.
    Reversed and remanded.
    Ditzler H. Jones, of Uvalde, for appellant.
    James Cornell and W. A. Anderson, both of San Angelo, for appellee.
   BAUGH, J.

Appellant sued appellee for a broker’s commission of $1 per head on a sale of 498 head of mules belonging to Williams. At the close of appellant’s evidence, the court instructed a verdict for Williams, and rendered judgment accordingly, from which this appeal is prosecuted.

The record discloses substantially the following facts: John Gibbens lived in Uvalde county. Lee Williams lived in Schleicher county. On January 31, 1924, Gibbens wrote Williams as follows:

“Recently in conversation with J. D. Wylie, in Uvalde, Texas, formerly of San Angelo-, Texas, he remarked that I might be able to purchase some mules from you.
“If you have any mules for sale, I have a party who wants several hundred, provided he can buy them at the right prices.
“Please send me ages, best prices and number of each class, as to ages, also the commission you will allow me.
“I feel sure we can sell all you care to dispose of.
“Please let me hear from you at an early date in regard to this matter.”

To this letter Williams replied on February 4, 1924, as follows:

“Your letter written from Uvalde, Texas on the 31st to hand & contents noted. Now in regard to the mules, will say that I have about 500 head that are for sale at a bargain; there are:
“125 coming 4 year old.
“150 coming 3 year old.
“150 coming 2 year old.
“150 coming 1 year old.
“I would to sell the entire bunch if I can & it will take much less money to buy them as the number that I sell is what counts with me. I have them priced this way: The 4s $60.00, the 3s $50.00, the 2s $40.00, and the colts $30.00 & will pay you the regular commission of $1.00 per head,. that is, if you actually sell the mules, as I give no man a com. unless he actually sells my stock. I also have a nice line of young geldins 4 & 5 year olds for sale at $60.00 & they are fine, will weigh around 1000 lbs. .& 15 hands & better high. Now in regard to the mules, will say that they are well bred as any mules in Texas; the jacks are from 15 to 16 hands horse measure & the mares are half German Coach & the mules are first class & I have never sold a mule at 3 years old for less than $100.00. But time have change the mule market here, the price. If yofir party wants a first class lot of mules I feel sure that we will have no trouble in trading. As I said before, the number is the thing with me. So let me hear from you at once as I have a lot of Mexico inquiry every week.”

Soon after the receipt of this letter, John Gibbens communicated by letter and by telephone with his brother, George Gibbens, who dealt in mules, and who resided at Eagle Pass, Tex., offering said mules for sale. George Gibbens advised John that the deal was too big for him to handle alone, but that if Jim Clamp, who lived at Bracketville, Tex., would join him, they might purchase Williams’ mules. George Gibbens thereafter showed to Clamp the above letter, and Clamp and George Gibbens agreed to purchase said mules if they were as represented. Within a few days thereafter George Gibbens-notified his brother John, appellant, that he and Clamp wanted to go to Schleicher county to look at the mules and requested John to go with them. John, however, was unable to go at that time, and requested George to go ahead with Clamp, .take the letter above set out, show it to Lee Williams, and advise him that they had come to buy the mules. George Gibbens testified that this was done. He and Clamp bought 498 mules at the price quoted in the letter except as to about 100 one year old mules on which Williams reduced the price $5 per head below that quoted in the letter.

With this uncontroverted -evidence before it the trial court instructed a verdict for the defendant. In the absence of any further evidence, plaintiff was entitled to an instructed verdict in his favor. The property was clearly listed with appellant for sale. He undertook to find a purchaser, and sent, within 15 days after said mules were listed with him, as the direct result of his efforts, purchasers to the owner, to whom the property was in fact sold. All except the yearling mules were sold at the price quoted in the letter. But that fact is immaterial. Where a broker produces a purchaser to whom the owner sells the property at a less price than that at which it was listed, the broker is entitled to his commission, if he be the procuring cause of the sale. Goodwin v. Gunter, 109 Tex. 56, 185 S. W. 295, 195 S. W. 848; Goodman v. Henck (Tex. Civ. App.) 295 S. W. 351.

Nor is there any merit in appellee’s ■ contention, which was obviously the view taken by the trial court, that appellant did not “actually sell the mules” as specified in Williams’ letter. It was not necessary for appellant to come personally to Schleicher county, point out the mules to the purchasers, negotiate the terms, and finally complete all parts of, the transaction. When the broker, through his efforts, has furnished to the owner a purchaser who purchases the property either at the list price, or on terms satisfactory to the owner, he has 'effected a sale thereof, and in legal contemplation has “actually sold” such property. As stated in Keener v. Cleveland (Tex. Com. App.) 250 S. W. 152:

“The rule is well established that, when a real estate broker is instrumental in bringing together the seller and a purchaser who is acceptable to him, and they consummate a sale and purchase of property on terms that are satisfactory to the seller, this constitutes the agent the procuring cause of the sale, and he is entitled to the commission agreed upon.”

It does not appear that the ease was fully developed on the trial, and for that rea-> son the judgment of the trial court is reversed and the cause is remanded for another trial, instead of judgment being ■ here rendered for appellant.

Reversed and remanded.
      <§=jFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: JACKSON, J.

text:
    CARROLL, BROUGH, ROBINSON & HUMPHREY v. WEBB, Sheriff et al.
    (No. 2959.)
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 1, 1928.
    Rehearing Denied March 7, 1928.
    1. Sheriffs and constables <S=»I38(.I)— Proof of judgment, issuance, and delivery of execution and failure to make timely return makes pri-ma facie case, for recovery of debt, which sheriff must overcome by proof that nothing could have been collected (Rev. St. 1925, art. 3826).
    Proof of valid judgment, issuance of execution thereon, its delivery to sheriff, and his failure to make return within time prescribed by law, makes a prima facie case for recovery of full amount of debt, interest, and costs, under Rev. St. 1925, art. 3826, by execution plaintiff, from sheriff and his surety, and burden is on sheriff to overcome such case by proof that nothing could have been collected on execution by proper official diligence.
    2. Sheriffs and constables 38(2) — Sheriff’s return on execution is admissible in defense on motion for judgment for failure to make timely return, though made after return day (Rev. Si. 1925, arts. 3825, 3826).
    Sheriff’s return on execution is admissible in his defense on motion for judgment against him and his surety, under Rev. St. 1925, arts. 3825, 3826, for failure to- make return within time prescribed, though made after return day and citation to answer motion; latter fact going to credibility of return.
    3. Sheriffs and constables 38(3) — Sheriff’s return on execution held insufficient to overcome prima facie case on motion for judgment for failure to make timely returni (Rev. St. 1925, arts. 3825, 3826).
    Sheriff’s return, showing receipt of execution nearly two months before signing return, which stated that he found no property subject to execution and traveled no miles in serving writ, held insufficient to overcome prima facie ease, established on motion for judgment against him and his surety, under. Rev. St. 1925, arts. 3825, 3826, for failure to make timely return; being incomplete and irregular and failing to support allegation of diligent search in answer.
    4. Sheriffs and constables <®=»l39(2)— Execution plaintiff may recover at least nominal damages and costs for sheriff’s unexcused failure to make timely return (Rev. St. 1925, art. 3826).
    Execution plaintiff is entitled to recover at least nominal damages and costs from sheriff and his surety, under Rev. St. 1925, art. 3826, for his failure to make return within time prescribed by law, where he does not show valid excuse, though his misconduct caused plaintiff no injury.
    Appeal from Potter County Court; Sam B. Motlow, Judge.
    Action by Carroll, Brougli, Robinson & Humphrey, a corporation, against the Red Eront Store, a corporation, in which an attachment was issued and levied by Reeder Webb, Sheriff of Ector County. Judgment against defendant, and the sureties on its re-. plevy bond, and, from a judgment against the sheriff and his surety, on plaintiff’s motion for judgment against them because of the Sheriff’s refusal to levy, and make return on, execution against the sureties on the replevy bond, plaintiff appeals.
    Reversed and remanded.
    W. A. Palmer, of Amarillo, for appellant.
    Gossett & Collat'd, of Odessa, and Turner, Culton & Gibson, of Amarillo, for appellees.
   JACKSON, J.

On April 15, 1927, Carroll, Brough, Robinson & Humphrey, a corporation, hereinafter called appellant, filed suit in the county court of Potter county, Tex., against the Red Eront Store, a corporation, and secured the issuance off a writ of attachment by the clerk of said court, which was levied upon the goods of the Red Eront Store ' by Reeder Webb, the sheriff of Ector county Tex., to which Crane county, Tex., is attached for judicial purposes. After the levy of the writ of attachment, the Red Eront Store filed with said sheriff its replevy bond, upon which J. Rosner, M. Konez, and Joe Spegle are sureties, and the stock of goods levied upon was delivered by said sheriff to the Red Front Store.

On June 18,1927, the county court of Potter county, Tex., rendered judgment by default against the Red Front Store and its sureties on the replevy bond for the sum of 8513.50, costs, etc.

On- July 9, 1927, the appellant obtained the issuance of an execution out of the county court of Potter county, Tex., to be levied upon the goods, lands, and chattels of the Red Eront Store, and its sureties on the replevy bond, J. Rosner, Joe Spegle, and M. Konez.

On August 24, 1927, the appellant filed its motion in the county court of Potter county, Tex., alleging that the execution issued in said court on July 9, 1927, was forwarded to and received by Reeder Webb, the sheriff of Ector county, and also of Crane county, by reason of its attachment to Ector county for judicial purposes; that the Red Front Store and its sureties on its replevy bond resided in Crane county, Tex.; that Reeder Webb, the sheriff, failed ánd refused to levy said execution against the sureties on the replevy bond and refused to make any return on said execution; and that he, as principal, and the United States Fidelity & Guaranty Company, as his surety, by reason thereof, were liable and indebted to appellant for the amount of said judgment and costs; and sought judgment against the sheriff and his surety for said amount.

This motion was answered by general demurrer, general denial, and an admission by the sheriff of the receipt of the execution. He also pleaded that he made diligent search for property belonging to the Red Front Store and its sureties, but was unable to locate any property belonging to them or either of them, subject to execution, and that neither of said defendants, at the time the execution came into his hands, or thereafter before his return of the execution, had property within Ector or Oráne counties subject to execution; that he returned said execution to Potter county, showing in his return thereon, which he made a part of his answer, that no property could be found, for which reason the appellant had, in no way,, been injured. He also attacked the validity of the judgment upon which the execution was rendered.

The appellant, in reply to this answer, filed a supplemental petition, but we deem it unnecessary to give further details of the pleadings.

On a hearing before the court, judgment was rendered against the appellant and in favor of the sheriff and his surety, from which judgment this appeal is prosecuted.

The appellant introduced in evidence the execution, which discloses that on June 18, 1927, it recovered a judgment against the Red Front Store and its sureties on the re-plevy bond for the amount sued for, and the return on said execution, which reads as follows:

“Came to hand the 11th day of July, 1927, at - o’clock, and executed by levying on the following described property, as property of the defendant, to wit:
“And I found no property subject to execution. J. Rosner has moved out of the county. I think to El Paso. M. Konez has gone and taken all his belongings. Joe Spegle don’t have anything in his name.
“I actually and necessarily traveled ■ ■ ■ • miles in the service of this writ.
“Reeder Webb,
“Sheriff Ector County, Texas.”

This execution and return was filed in the county court of Potter county, Tex., by the clerk thereof September 3, 1927.

The appellant presents as error the action of' the trial court in rendering judgment against it and in favor of the sheriff and his surety, under the facts and circumstances revealed by the record.

The court filed findings of fact to the effect that the original judgment entered against the Red Front Store and its sureties for the sum of $513.50 was a valid judgment; that the execution was issued on July 9, 1927, on said judgment; that on September 3, 1927, the sheriff returned the execution into the county court of Potter county, Tex., with his return thereon as hereinbefore set out; that the officer failed to discharge his duty and return the writ to the court issuing the same within the time therein required, but that the prima facie case thereby made against the sheriff and his surety was overcome by the sheriff’s return showing that no' property was found subject to execution; and that the return on the execution was signed after return day and.after the sheriff had been cited to answer appellant’s motion for judgment against him and his surety.

Article 3826, R. C. S. 1925, provides:

“Should an officer neglect or refuse to return any execution as required by law, or should he make a false return thereon, he and his sureties shall be liable to the party entitled to receive the money collected on such execution for the full amount of the debt, interest and costs to be recovered as provided in the preceding article.”

The preceding article (article 3825) provides that this amount is “to be recovered on motion before the court,” etc.

These are the articles under which the appellant proceeded in its motion to recover against- the sheriff and his surety. “The' failure of the officer to discharge his duty in the premises renders him and his sureties prima facie liable to the plaintiff in execution for the full amount of his debt, interest, and costs, and the burden is on the officer to overcome such prima facie case by showing that nothing could have been collected- on such execution by proper official diligence.” B. F. Goodrich Rubber Co. v. Valley Plumbing & Supply Co. et al. (Tex. Civ. App.) 267 S. W. 1036, and authorities cited. To the same, effect is Harston et al. v. Langston et al. (Tex. Civ. App.) 292 S. W. 648.

The appellant haying shown a valid judgment, the issuance of the execution thereon, its delivery to the sheriff, and his failure to make a return within the time prescribed by law, made a prima facie case for a recovery,which the officer was required to overcome by proof.

The sheriff’s return, though made after return day, was admissible in his defense, but was not sufficient, in our opinion, to overcome the prima facie case established by appellant. It is uncontroverted that Reeder Webb was sheriff of Crane county by virtue of its attachment to Ector county, of which he was sheriff. In his answer, he pleads that he made diligent search in both Ector and Crane counties in an effort to find some property belonging to the parties against whom execution was directed, and he states in his return that he found no such property. He shows that he received the execution on the 11th day of July, and the court finds that he signed the return after return day, and after he had been cited to answer the motion. His return also shows that he traveled no miles in serving the writ. There was ample time from the date of his receipt of the execution to his signing the return for the defendants to have left the county, taken their belongings or hidden out their property.

“When the sheriff makes an official return, it can be used to that extent in hi's own behalf. It is the official act, made under oath, and is prima faeie evidence in his own favor; but the fact that it was made after motion made against him will go to the credibility of the return, and we are of opinion it was properly received in evidence.” Vaughan v. Warnell, 28 Tex. 119.

In this opinion, the court was obviously passing upon the admissibility of the testimony and not the weight to be given to it.

The return of the sheriff in the case at bar is incomplete, irregular, and fails to support his allegation that he made diligent search for property in Ector and Crane counties belonging to the parties against whom the execution was directed, and, to our minds, seriously affects “the credibility of the return.”

'“The misconduct of the officer may have in fact occasioned no injury to the plaintiff; but the latter is nevertheless entitled to recover at least nominal damages in all cases where the officer does not show a valid excuse for not making his return.” Freeman on Executions, 3d Edition, Vol. 3, par. 368.

“The burden of proof is upon the officer; and, in a case like the present, he may be held liable, at all events, for nominal damages and costs, as in a case of an ordinary action against him.” Smith v. Perry, 18 Tex, 510, 70 Am. Dec. 295.

The judgment is reversed, and the cause .remanded.
      <®^»Eor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PLEASANTS, C. J.

text:
    GALVESTON, H. & S. A. RY. CO. v. BREWER.
    (No. 9047.)
    Court of Civil Appeals of Texas. Galveston.
    Jan. 27, 1928.
    Rehearing Denied March 29, 1928.
    f. Appeal and error <8=1043(7) — Error, if any, in refusing continuance because amended petition set up different cause of action held harmless, in view of evidence d'eveioped.
    In action for personal injury to railroad employee while loading stringers onto cars by means of a hoisting machine, error, if any, in refusal of defendant’s application for continuance because amended petition filed on day of trial set up new and different cause of action on theory that by amendment plaintiff invoked the doctrine of res ipsa loquitur, became harmless, where, under evidence, immediate cause of accident was shown and hence there was no room for application of the res ipsa loquitur rule.
    2.Pleading <S=248(11)— Amended petition which amplified former allegations as to defective construction or maintenance of hoisting machine held not new cause of action.
    Where petition of railroad employee alleged he received injuries while, engaged in loading stz-ingers onto ears by means of a hoisting machine, amended petition, which only amplified allegations of prior pleadings as to control and management of machine and added thereto that action was such as ordinarily did not happen if those having management and control used proper and ordinary care, held not to set up a new and different cause of action.
    3. Pleading <8=248(2) — Generally, amended petition alleging same transaction does not state new cause of action notwithstanding amendment may be established by different proof.
    Generally, an amended petition asserting a cause of action between same parties and growing out of same transaction or occurrence as that alleged in. original petition does not set up new cause of action, notwithstanding amendment may be established by different proof from that required to sustain original petition.
    4. Evidence <§=353 — Presumptions or inferences cannot be indulged against proved facts.
    Presumptions or inferences cannot be indulged against proved facts, both giving way when facts appear.
    5. Continuance <8=31 — Defendant could not claim surprise where showing of cause of fall of timber which injured employee was elicited on cross-examination of its witness.
    Where railroad employee was injured while loading stringers onto cars by means of a hoisting machine, defendant could not claim surprise in testimony showing cause of fall of timber, since it was elicited on cross-examination of one of its witnesses.
    6. Master and servant <8=265(2) — Doctrine of res ipsa loquitur is applicable as between master and servant.
    The doctrine of res ipsa loquitur can be applied as between master and servant.
    7. Master and servant <8=286(1) — Refusal to direct verdict for defendant because plaintiff failed to prove prima facie case held proper, where evidence raised issue of negligence.
    Where a railroad employee was injured while loading stringers onto cars by means of a hoisting machine, refusal to instruct jury to return verdict for defendant because plaintiff failed to prove prima facie case entitling him to recover was not error, where issue of negligent operation of the hoisting machine as the proximate cause of plaintiff’s injury was for jury.
    8. Trial <8=420 — Defendant introducing evidence after motion for instructed verdict was denied could not complain of refusal to instruct verdict on plaintiff’s evidence.
    Where defendant, after its motion for instructed verdict was overruled, introduced testimony, and plaintiff by cross-examination of defendant’s witnesses having elicited additional evidence on issue of negligepee, defendant cannot complain of refusal to instruct verdict for it on evidence at time plaintiff rested.
    9. Trial <8=426 — Question whether evidence authorizes" recovery is determined from entire evidence, where defendant introduced evidence after denial of its motion for verdict.
    Defendant being permitted after its motion for instructed verdict is overruled to introduce evidence sustaining its defense, question of whether evidence raises issue of plaintiff’s right to recover must be determined from evidence as a whole, and not confined to evidence offered by plaintiff before resting.
    10. Master and servant <g^>286(18) — Whether railroad was negligent in not having chains more securely fastened to grappling hook on crane held under evidence for jury.
    Where railroad employee was injured while loading stringers onto cars by means of a hoisting machine, whether railroad was negligent in not having chains attached to g'rappling hooks more securely fastened to hook at end of crane or pulley chain being under evidence for jury, refusal to instruct verdict in its favor was not error.
    i 1. Trial @=»350(6) — Refusal to submit issue of assumed risk held not error, where injured employee was not engaged in interstate commerce.
    Where railroad employee was injured while loading stringers onto cars by means of a hoisting machine, refusal to submit issue of assumed risk was not error, where evidence did not show that plaintiff was loading timbers which were to be immediately used to repair a bridge over which interstate commerce was being transported by railroad.
    12. Commerce.<§=527(8) — Employee was not engaged in “interstate' commerce” because of loading timber which might in future go into bridge over which interstate commerce would be transported.
    Railroad employee was not engaged in “interstate commerce,” so as to have assumed risk of injury from loading timber on cars, because timbers would in future be used for construction or repairs of a railroad bridge over which interstate commerce would eventually be transported.
    [Ed. Note. — Eor other definitions, see Words and Phrases, First and Second Series, Interstate Commerce.]
    13. Appeal and error <⅞=01062(2) — Refusal of railroad’s request to submit specific question of plaintiff’s negligence in placing hooks too near end of timber held harmless.
    Where railroad employee was injured while loading stringers onto cars by means of a hoisting machine, and only issue of contributory negligence under evidence was submitted under eharg-e as to plaintiff’s contributory negligence in fastening hooks in timber, refusal of defendant’s request to submit specific question whether plaintiff was negligent in placing hooks too near end of timber was harmless.
    14. Appeal and error <®^688(2) — Question whether counsel’s remarks were harmful need not be considered, where bill does not state what objections were made.
    Where plaintiff’s counsel, before ruling on objection to question was made, stated he was going to withdraw question because it was a matter of common knowledge, alleged error therein need not be considered, where bill of exceptions does not state what objections to remarks were made by defendant.
    15. Trial <®=>I33(6)— Counsel’s statement in withdrawing question that it was matter of common knowledge held not so prejudicial as to cause jury to disregard instruction not to consider.'
    Where, in personal injury action, defendant’s witness testified that equipment used by railroad was scientifically and correctly built, and plaintiff’s counsel asked him whether in face of that they did not have injuries from all their devices, withdrawal of question, before ruling of objection thereon, with statement that that was matter of common knowledge, held not calculated to arouse passion or prejudice of jury so as to cause them to disregard instruction not to consider.
    16. Damages <®=^>I32(3)— $12,500 for injuries to spine of man of 65 years, incapacitating him from working on his feet, held not result of passion and prejudice.
    $12,500 damages to man of 65 years of age having life expectancy of 11 years, previously earning from $72 to $100 per month and doing additional work at home, held not result of passion and prejudice, where he sustained serious and painful back injury and at time of trial, a year and a half after injury, he was unable to •do any work on his feet, but could only use his arms and do such work as he could perform while sitting.
    Appeal from District Court, Lavaca County ; Lester Holt, Judge.
    Action by J. S. Brewer against the Galveston, Harrisburg & San Antonio Railway Company. From a judgment for the plaintiff, defendant appeals.
    Affirmed.
    Baker, Botts, Parker & Garwood, of Houston, and Marcus Schwartz and W. T. Bag'by, both of Hallettsville, for appellant.
    Henry S. Paulus, of Yoakum, and Fly & Ragsdale, of Victoria, for appellee.
   PLEASANTS, C. J.

This suit was brought by appellee to recover of appellant the sum of $25,000 damages for personal injuries alleged to have been caused by the negligence of appellant.

Plaintiff’s petition alleges, in substance, that he received the injuries of which he complains while engaged with other employees of .appellant'in its yards at Yoakum, Tex., in loading heavy timbers, called “stringers,” upon one of appellant’s cars; that the timbers were loaded on the ear “by means of a hoisting machine which consisted of a power appliance, a crane, pulleys and chains, or cables and hooks; that appellee was required to fasten the hooks used in hoisting the timbers, in one end of the timber to be hoisted, and another employee of the appellant was required to fasten the hook in the other end, and that after said hooks were securely fastened that fact would be communicated to another of appellant’s employees, who put into operation the motive power that was required to hoist and lift the timber from the gronnl to the car, and the stringer would then be pulled in position on the car, after which the grappling hooks would be released, and this process of loading continued until the work had been completed; that appellee fastened the grappling hook used by him securely in one of the pieces of timber desired to be loaded, and his coemployee also fastened the grappling hook used by him in another part of the timber, and the necessary signal was given to hoist the timber; that while said timber was being so hoisted, the chain or cable appliance, or some connection used therewith for said hoisting, broke or became disconnected, and as a result said timc ber, or one end thereof, fell to the ground, and in so falling struck appellee in the back, which caused him to suffer great pain and permanently injured him; that his injuries are permanent and that he is wholly incapacitated from performing any remunerative labors and from earning any money as a laborer ; that as a result of said injuries he has become nervous, is unable to sleep at night, and cannot put on his own shoes and lace them up, and generally is unable to perform’ the ordinary duties of dressing and undressing himself.”

The negligence pleaded as the cause of plaintiff’s injury will be hereinafter shown.

Appellant (defendant) answered by general demurrqr, by special exception to that part of paragraph 9 of appellee’s petition wherein he attempted to base a recovery upon the value of his labor in and about his own home, by a general denial, and by special denial, especially denying that the hoisting machine, chains, hooks, and other parts belonging thereto and used on the occasion in question were defective in any respect or insufficient, to lift the timbers which were being loaded, and alleging that said machine was in perfect condition and was scientifically constructed and built, and that it was the same kind of machine that is generally in use by railroads and other companies where heavy timbers are to be moved and lifted from, one position to another; and also especially denying negligence in the operation of. said machine and charging contributory negligence on the part of appellee in placing the grappling or timber hooks fastened by him in an improper place, thereby causing the stringer or timber to fall, and in failing to place himself in a safe position and place after said hooks were fastened and while the hoisting machine was being operated. Appellant also pleaded that at the time of said injury it was engaged in interstate commerce and appellee assumed the risk incident to said work.

The trial in the court below resulted in a verdict and judgment in .favor of appellee in the sum of $12,500.

Appellant first complains of the ruling of the trial court refusing its application for a continuance. This application was based upon the ground that by the amended pleading filed by plaintiff on the day the case was called for trial he had set up a new and different cause of action from that theretofore pleaded by him, and defendant not having any notice of plaintiff’s change of his cause of action was not prepared to meet it with evidence then at its command, but by continuance of the cause could procure such evidence.

Conceding that the application contains all of the statutory requisites of a first application for continuance, the court did not err in refusing it, because the facts stated therein are not supported by the record, in that the amended petition on which the case was tried did not set up a new and different cause of action from that theretofore pleaded by the plaintiff. The negligence upon which the cause of action is based is thus pleaded in the amended petition upon which the ease was tried:

“(a) That said injuries were brought about to him as a direct and proximate cause of the defendant’s negligence in failing to’ furnish him safe and suitable material and instruments and means of labor in discharging his duties to this defendant in loading said material, in this, that the' hooks-, chain, or cable to which the grappling hook was fastened were 'insufficient and unsafe in all their parts to meet the requirements of lifting said timbers, and by reason of their insufficiency the same in the" manner of their use became disconnected or broken, as hereinbefore alleged, or else the same was insufficient in that the same would not remain securely fastened in all their parts and the same became loose and permitted the timber, to which the grappling hook had been fastened, to fall.
“(b) That the said hoisting machine in its entirety and in the various parts thereof, which included each and everything necessary to complete and equip a proper hoisting machine and the maintenance thereof to be used in hoisting' materials and timbers from the ground to cars upon which same were to be loaded, was- on said Slst day of October, A. D. 1925, under the exclusive control and management of the defendant or its agents and employees other than this plaintiff, and the accident and injury to said plaintiff, so occasioned as aforesaid, was such as in the ordinary course of things does not happen if those who have the management and control use proper or ordinary care, and this plaintiff’s injuries so occasioned and suffered, as aforesaid, by reason of the falling of said timber, was proximately caused by the negligence of the defendant or its agents, and employees acting for it within the scope of their authority or employment in that behalf, due to the want of ordinary care in the construction of said hoisting device or in the maintenance thereof, whereby it was on account of the negligence of the defendant, or imputable to it, either improperly constructed or else insufficiently and improperly maintained, but the particular or particulars of which negligence are unknown to this plaintiff, and he cannot here more definitely or with greater certainty specify same, and that but for sucb negligence such injury to this plaintiff would not have occurred.
“Plaintiff shows to the court that if he be in error as to the allegations contained in the next preceding paragraph of this petition as set out in subdivisions (a) and (b) thereof, as to devices and tools and appliances or their maintenance so furnished him by defendant with which to perform his duties to this defendant, then he says and charges in the alternative the facts to be that the defendant, its agents, servants, and employees, other than this plaintiff, on said day so negligently operated said hoisting apparatus in hoisting or lifting the heavy timbers from the ground that the grappling hooks or some other part of said device became loosened and permitted said timber to fall and strike this plaintiff and injure him as aforesaid, while he was in the exercise of, due care for his own safety and without fault on his part. That the said hoisting crane and all of its parts so used in hoisting said timbers on said occasion by the defendant, including its operation, handling, and equipment, was under the exclusive management and control of the defendant, its employees and agents, other than this plaintiff, and the accident to this plaintiff, the said J. S. Brewer, so occasioned, as aforesaid, was such as in the ordinary course of things does not happen if those who have the management and control, and use and operation of said device, use proper or ordinary care in such handling, and this plaintiff’s injuries so suffered on account of said falling timber were proximately caused by the negligence of the defendant or its agents or employees acting for it within the scope of their employment in that behalf, due to the want of ordinary care either in the operation or handling of said equipment or in the equipment of said device itself, whereby it was, on account of the negligence of the defendant, or imputable to it, either improperly operated or handled negligently, or else insufficiently equipped, but the particular or particulars of which are unknown to plaintiff, and he cannot here more definitely or with greater, certainty specify same, and but for such negligence such injuries would not have occurred.”

The allegations of negligence in the superseded pleading are as follows:

“That said injuries were brought about to him as a direct and proximate cause of the defend-, ant’s negligence in failing to furnish him safe and suitable material and instruments and means of labor in discharging his duties to this defendant in loading said material, in this, that the hooks, chain, or cable to which the grappling hook was fastened were insufficient and unsafe in all their parts to meet the requirements of lifting said timbers, and by reason of their insufficiency the same in the manner of their use became disconnected or broken, as hereinbefore alleged, or else the same was insufficient, in that the same would not remain securely fastened in all their parts and the same became loose and permitted the timber, to which the grappling hook had been fastened, to fall.
“Plaintiff shows to the court that if he be in error as to the allegations contained in the next preceding paragraph of this petition as to defects of tools and appliances so furnished him by defendant, with which to perform his duties to this defendant, then he says and charges, in the alternative, the facts to be that the defendant, its agents, servants, and employees other than this plaintiff, on said date so negligently operated said hoisting apparatus in hoisting or lifting the heavy timbers from the ground that the grappling hooks or some part of said device became loosened and permitted said timber to fall and strike this plaintiff and injure him, as aforesaid, while he was in the exercise of due care for his own safety and without fault on his part. That the specific act or acts of negligence of the defendant, its agents, servants, and employees, so causing his injuries, are unknown to this plaintiff, nor can he reasonably charge of what same consisted.”

We cannot agree with, appellant’s contention that the amended petition set up a new and different cause of action.

The amendment was filed to meet exceptions of defendant to the prior pleading on the ground that its allegations were too general in the statement of the grounds of negligence relied upon to show appellant’s liability for the injury. The only difference in the two pleadings is to be found in paragraph (b) of the amended petition before set out. This paragraph merely amplifies the allegations of the prior pleading as to the control and management of the hoisting machine, and adds the allegation that the accident was such “as in the ordinary course of things does not happen if those who have the management and control use proper and ordinary care,” and further amplifies the former allegations as to the defective construction or maintenance of the machine. Both pleadings allege that the specific act' or acts of negligence which caused the injury were unknown to the plaintiff.

Appellant’s claim that the amendment set up a new cause of action is predicated upon the theory that by the amendment plaintiff invoked the doctrine, “Res ii>sa loquitur,” and that such doctrine could not have been applied upon the allegations of the former pleading.

We are not prepared to, hold that the doctrine could not have been invoked under the superseded pleading if the evidence had failed to show the specific cause of the fall of the timber. But if appellant’s contention, that the rule could not have been applied under the pleadings amended, is sound, the cause of action pleaded in the amendment would not be a new one, though, a smaller quantum of proof would be required of plaintiff in establishing his allegations of negligence. It may be that such a change in a petition would so surprise a defendant as to entitle him to a continuance of the case. This question, however, has been eliminated from the ease by the evidence adduced upon the trial.

The undisputed evidence shows that in hoisting the stringer, the ring to which the chains attached to the grappling hooks used by appellee were fastened slipped off of the large book on the end of the pulley chain and this caused the timber to fall. The immediate cause of the accident being thus shown, there was no room for the application of the res ipsa loquitur rule; the only issues for the jury (aside from that of contributory negligence) being whether appellant was negligent in using this method of fastening the grappling hook chains to the pulley chain, and whether such negligence was the proximate cause of the injury.

The authorities are numerous and uniform in support of the general rule that an amended petition asserting a cause of action between the same parties and growing out of the same transaction or occurrence as that alleged in' the original petition does not set up a new cause of action, notwithstanding the amendment may be established by different proof from that required to sustain the original petition. Mexican Cent. Ry. Co. v. Mitten, 13 Tex. Civ. App. 653, 36 S. W. 285; Lauda v. Obtert, 78 Tex. 33, 14 S. W. 297; Cotter, Truelove & Co. v. Parks, 80 Tex. 539, 16 S. W. 307; Commonwealth Ins. Co. v. Bryant (Tex. Civ. App.) 185 S. W. 979; St. Louis Southwestern Railway Co. v. Cambron, 62 Tex. Civ. App. 465,131 S. W. 1130.

But, as we have before said, this question becomes immaterial in view of the undisputed evidence showing the immediate cause of the accident. Presumptions or inferences cannot be indulged' against- proven facts; both give way when facts appear. When the evidence disclosed that the ring to which the grappling hook chains were attached slipped off the large hook at the -end of the pulley chain upon which it was placed, and this caused the timber to fall, no inference of any other cause for the injury was presumable and the rule res ipsa loquitur could have no application.

The testimony showing the cause of the fall of the timber was elicited on cross-examination of one of appellant’s witnesses, and appellant was in no position to claim surprise by the testimony and has made no such claim.

If there was prima facie error in refusing the application for continuance, such error became manifestly harmless as the ease was developed by -the evidence.

Upon the trial plaintiff rested his case after introducing the following evidence: Plaintiff testified, in substance, that he was injured on October 31, 1925, while engaged in the duties of his employment loading heavy bridge timbers, called stringers, upon a ear of defendant in its yards at Yoakum, Tex. These pieces of timber each weighed about 800 pounds. The method of loading required two men to place grappling hooks at each end of the timber to be lifted on the car. by hoisting machine, operated by a third employee of the defendant. After the grappling hooks were fastened to each end of the timber, the hoisting machine put in operation, and the timber lifted 9 or 10 feet from the ground, the end upon which plaintiff had placed the grappling hooks fell to the ground, struck plaintiff, and severely injured him. He further testified:

“Now, this hoisting apparatus, if you want me to-just explain what kind of a thing it is: It is a thing' they load heavy timbers with, an arm that reaches ’way out and grabs a piece of something heavy that way and loads it on a car, or'puts it wherever you want it. After you have lifted the piece of timber from the ground, the man who handles the hoister is able to shift it around. On this particular day this hoister was located right behind the storeroom, on the edge of the lumber yard — right out in. the lumber yard. I don’t know that the machine was fastened to anything. -The hooks were hooked onto this timber. The machine was setting on the ground. There is a crane used in connection with this. That crane reaches away out and gets anything, and there is- a chain coming up there with hooks on it, and those hooks come on down and were fastened on to the timber. My duty was to fasten those hooks that I spoke of as coming down — fasten them to the timber. On that occasion me and another man were employed fastening those hooks into the timber. As to where I was to fasten mine, and where he was to fasten his: He was on the back end, and I was on the front; but I hooked on first, and he hooked on back on the back end. After I had hooked my hooks and he had hooked his hooks, then it became necessary, in order to lift this timber from the ground to the car, for the man that was running the hoister to take care of it. * •* *
“I hooked on to it, and he gave it a jerk up. As to how I fastened those hooks: I fastened —hooked it on to the timber just the same as I did the others. * * * I fastened those hooks by hooking them into the timber. I stuck them into the timber. That was the proper way; that’s the customary way, and that’s the way I had been hooking them. I did not have anything to do with the hoisting apparatus. It was the duty of Mr. Tom Rollin to look after the hoisting of the timber after we had hooked or fastened the hooks- on to it. Mr. Tom Rollin is the man that was working out there with me. He was working for the company. I did not "have any authority over this man. * * * I don’t know what caused those grappling hooks or fastenings to turn loose; they came loose up above. I don’t know what caused them to come loose, unless it was the jerking of the timber, and it had slipped over and slipped out of that hook up above. I saw it jerking when I stepped back out of the way.
“Now, after having fastened these hooks, as I fastened them on that occasion, had the machine itself been ail right, in good condition, and had they operated it as they should have operated it, I do not think that that timber would have fallen; there had been too many loaded with that. If properly handled, I don’t think it would have -fallen. It couldn’t have done that if it was properly handled.”

Cross-examination:

“I hooked or attached my grappling hooks to the stringers first. I did not see when Tate attached Ms grappling hook; I didn’t notice how he hooked it, but I saw him pick it up.
I saw him when he was coming over to attach it. Then X stepped out of the way. Then we made the demand that it he lifted up by the operation of this hoisting machine, with the use of the crane; and when about 9 feet or 10 feet, as I estimate it, it slipped off the hook *. — came down from the hook, and fell toward me.”

Plaintiff next introduced paragraph 4 of defendant’s first amended original answer, which is as follows:

“4. Further answering herein, defendant especially denies that the said hoisting machine, together with chains, hooks, and other parts belonging thereto and used by plaintiff on the date when, he alleged, he was injured, was defective in any respect or insufficient to lift the timbers which were being loaded at that time, but it says that said machine, together with all its parts used at said time, was in perfect condition; that it was scientifically constructed and built and was the same kind of machine that is generally in use by railroads and other companies where heavy timbers are to be moved and lifted from one position to another.”

The defendant then moved the court to instruct the jury to return a verdict in its favor “because plaintiff has failed to prove a prima facie case under the facts and law, entitling him to recover herein.”

Appellant’s second proposition assails the ruling of the court refusing this motion, on the ground that the doctrine of res ipsa lo-quitur does not apply as between master and servant, and plaintiff has introduced no evidence sufficient to raise an issue of negligence on the part of the defendant, as alleged in the petition. This proposition cannot be sustained. Under the rule of decision in this state, the doctrine res ipsa loquitur can be applied as between master and servant. In the case of McCray v. Ry. Co., 89 Tex. 168, 34 S. W. 95, Judge Brown, speaking for our Supreme Court, after discussing and defining the res ipsa loquitur rule, answers the contention that it is only applicable as between a carrier and passenger with the following quotation from the case of Rose v. Stephens & Condit. Transp. Co. (C. C. A.) 111F. 438, 20 Blatchf. C. C. 411:

* * Undoubtedly the presumption has been more frequently applied in eases against carriers of passengers than any other cases of negligence, but there is no foundation in authority or in reason for any such limitation of the rule of evidence, as the presumption originates from the nature of the act, not from the relations between the parties. It is indulged as a legitimate inference whenever the occurrence is such as, in the ordinary course of things, does not take place when proper care is exercised, and is one for which the defendant is responsible.”

But aside from the application of the rule mentioned, we cannot hold that plaintiff’s testimony did not raise the issue of negligent operation of the hoisting machine as the proximate cause of his injury.

If, however, the state of the evidence at the time the plaintiff rested his case was such as to entitle the defendant to an' instructed verdict, the defendant after the motion was overruled having introduced its testimony, and plaintiff by cross-examination of defendant’s witness having elicited additional evidence upon the issue of defendant’s negligence, the defendant is no position to complain of the refusal of the court to instruct a verdict in its favor upon the evidence as it existed at the time plaintiff rested his case. Under the common-law rule, when a • defendant demurred to plaintiff’s evidence and his demurrer was overruled, he could not then introduce any evidence and his defense would stand or fall upon the evidence to which the demurrer was addressed.

But our decisions have not applied this rule to a motion by a defendant to instruct a verdict upon the evidence, though such motion is in effect a general demurrer to the evidence. The defendant being permitted, after his motion for an instructed verdict is overruled, to introduce evidence sustaining his defense, the question of whether the evidence raises the issue of plaintiff’s right to to recover must be determined from the evidence as a whole, and not confined to the evidence offered by the plaintiff before resting his case. The defendant, not having been willing to rest its case on the evidence as it existed at the time plaintiff rested, cannot demand that the plaintiff’s case be rested upon that evidence only.

This brings us to a consideration of appellant’s proposition that the court erred in refusing to instruct a verdict in its favor after all the evidence had been introduced.

In addition to the testimony before set out, Mr. Rollin, defendant’s employee who operated the hoisting machine, and a witness for defendant, after testifying that the timber which fell and struck plaintiff fell because the ring to which the chains were attached to the grappling hooks placed on the timber by plaintiff were fastened, slipped off the large hook at the end of the crane or pulley chain upon which it hung, testified on cross-examination:

“Those two chains that led down from the hook at the end of the crane to the timber to be lifted were separate and independent from each other. They were not connected together in any wise.
“It is a fact that if those two chains had been connected together at the top by a ring, fastened together, and that ring had been fastened over the hook, it would have been impossible for this accident to have occurred. The chain fastened to the timber by Mr. Brewer could not have slipped off.”

Recross-examination:

“Now, if there had been a lock placed over the top of this hook over which the two ends of the grappling hook chains were placed, they could not possibly have slipped off; not if they were locked on.
“I don’t know of anything,to prevent such an appliance — one that is fastened — from being made. I have never seen one. There are such thing» made, hut in all of the hoisting machines and cranes I’ve seen, I never saw one in use like that anywhere. I was in the navy a little better than two years, since th'e war, and never saw any of them in the United States Navy made that way. I never saw a locked hook.”

J. P. King, another witness for defendant, testified:

“About those chains that run down from the large hook, and are attached to the grappling hook, to which the grappling hook is fastened, they are separate. It is not a fact that they are joined together by one large center ring, to which they are both fastened. I am certain of that.”

We cannot agree with appellant that this evidence does not raise the issue of negligence on its part in not having the chains attached to the grappling hooks more securely fastened to the large hook at. the end of the crane or pulley chain. The evidence introduced by appellant to the effect that the hoisting machine and the apparatus connected therewith was scientifically constructed and the kind in general use for the purpose of hoisting heavy timbers and other material's was not conclusive upon the issue of whether ordinary care required the appellant to have the chains to which the grappling hooks were attached more securely fastened to the hook on the end of the crane. The evidence shows that such security could have easily been obtained by the simple substitution of one ring for the two separate rings to which the chains attached to the grappling hooks were fastened, or by placing an automatic snap or lock over the opening of the large hook on which the rings at the end of the chains on the grappling hooks were hung. That either of these simple changes would greatly protect appellant’s employees engaged in the operation of the hoisting machine from the danger of injury from falling timbers, or other materials which they were using the machine to hoist, is obvious. Upon this evidence we think the jury were authorized to find, as they did, that appellant “failed to furnish plaintiff reasonably safe appliances with which to perform the labor he was engaged in at the time of his injury,” and that “such failure on the part of the defendant was the proximate cause of the injury to plaintiff.”

We cannot sustain appellant’s contention that the court erred in refusing to submit the issue of assumed risk.

Unless the evidence is sufficient to sustain the finding that the plaintiff at the time, of his injury was engaged in the furtherance of interstate commerce or in work so clearly related thereto as to be practically a part of interstate commerce, appellant was not entitled to have the issue of assumed risk submitted as requested by it. We think the evidence fails to show that plaintiff was so engaged at the time of his injury. The evidence shows that appellant is an interstate carrier, but no reasonable inference can be drawn from the evidence that the timbers which appellee was engaged in loading were being shipped for the purpose of constructing or repairing a bridge over which interstate commerce was being transported by appellant. The only evidence of the use to which the timbers were to be put is as follows:

“There were some .timbers being prepared and placed for shipment by the company on that date. The timbers were a bunch of bridge stringers. Bridge stringers are timbers 7 by 16, 26 feet long, used in the repair and construction of bridges. These particular bridge stringers were being sent or shipped to Mr. Chai’ley Snyder, bridge foreman of what is known as the Austin Division.”

Assuming that the Austin Division referred to by the witness was an administrative division of appellant’s railway, there is no evidence that any bridge on that division was being constructed or repaired, or that any bridge on any portion of appellant’s railroad used for the transportation of interstate commerce was being constructed or repaired. The ever widening meaning given by the United States Supreme Court to the clause, “engaged in interstate commerce,” as used in the federal statute invoked by appellant, has not yet been extended to include work upon .or in transporting any material which an interstate carrier might thereafter use in constructing facilities for interstate transportation, and this court has no disposition to take the lead in further ■ extending the scope of federal jurisdiction in questions of this character.

In each of the cases of Philadelphia, Baltimore & Washington Ry. Co. v. Smith, 250 U. S. 101, 39 S. Ct. 396, 63 L. Ed. 869; Pedersen v. Delaware, L. & W. Ry. Co., 229 U. S. 146, 33 S. Ct. 648, 57 L. Ed. 1125, Ann. Cas. 1914C, 153; Hargrove v. Ry. Co. (Tex. Civ. App.) 202 S. W. 188; Southern Ry. Co. v. Puckett, 244 U. S. 571, 37 S. Ct. 703, 61 L. Ed. 1321, Ann. Cas. 1918B, 69; Texas & N. O. Ry. Co. v. Gericke (Tex. Civ. App.) 214 S.W. 668, cited by appellant, the plaintiff at the time of his injury was> engaged in work on or in aid of work on some instrumentality used by the defendant in the interstate transportation of commerce. In the Pedersen Case, supra, the court is careful to confine its holding to work upon instrumentalities of interstate commerce after their use as such has begun. We do not think any of these cases require or authorize the holding that one engaged in work upon any material which an interstate carrier may at some time use in construction or repair of its fácil-ities for the transportation of interstate commerce should be regarded as engaged in interstate commerce, and this is all that can he inferred from the evidence in this case.

The issue of contributory negligence raised by the evidence was submitted by the court as follows:

“Do you find from the evidence that plaintiff was guilty of contributory negligence, as the matter has been hereinbefore explained to you, in fastening the grappling or timber hooks in the timber being lifted at the time of the injury, if any?”

The only issue of contributory negligence raised by the evidence is based upon the testimony of two of appellant’s witnesses to the effect that appellee attached his grappling hook too near to the end of the timber, and this caused that end .of the timber to shoot up when the hoisting machine was put into operation' and such dislocation of the timber’s center of gravity caused the ring to which the grappling hooks placed on the timber by appellee were fastened to slip or pull off the large hook at the end of the crane, and precipitated that end ,of the timber to the ground. This was the only contributory negligence pleaded by appellant in regard to the fastening of the grappling hooks to the timber by appellee. We think the charge above quoted properly submitted the issue to the jury. The contributory negligence in regard to the placing of the grappling hooks by appellee charged in the pleading ahd the evidence being that he placed the hooks too close to the end of the timber, the jury could not have considered any other question of negligence of appellee in placing the grappling hooks, and the refusal of the trial court to grant appellant’s request to submit the specific question of whether appellee was negligent in placing the hooks too near the end of the timber could not have possibly been harmful to appellant.

Another complaint is based upon the following statement or remarks of one of ap-pellee’s attorneys made during the cross-examination of one of appellant’s witnesses:

“While the witness IT. L. Oarson was on the stand testifying in behalf of the defendant, and had testified on direct examination that he was the superintendent of motive power for defendant company, and that he had personally bought the hoisting machine in question for defendant and that it was scientifically and correctly built when he bought it, J. W. Ragsdale, attorney for plaintiff, on cross-examination, propounded the following questions, to wit:
“Q. Now, all of the equipment that you have on the road that you purchased was scientifically and correctly built when you bought it, was it not? A. Yes, sir.
“Q. All right; in the face of this you have injuries following, do you not, from all these devices?
“All the above being objected to by attorneys for defendant, said J. W. Ragsdale, attorney for plaintiff, before a ruling was made by the court upon said objection, stated in the presence and hearing of the jury: T am going to withdraw it because it is a matter of common knowledge.’ Attorneys for defendant then objected to said remarks, whereupon the court verbally instructed the jury not to consider said remarks. The defendant then and there excepted to said remarks of counsel, notwithstanding the fact that the court had verbally instructed the jury not to consider the same, and it here now tenders this its bill of exceptions No. 3 and asks that same be approved and ordered filed as a part of the record in this case, which is accordingly done.”

We are not informed by the bill of exceptions what objections to the remark were made by appellant, and for that reason the point is not presented so as to require our consideration. But if we concede, for the sake of argument, that the remark was improper in stating as a matter of common knowledge a- fact not commonly known, the fact so stated was not calculated to so arouse the passion or prejudice of the jury as to cause them to disregard the instruction of' the court not to consider the remark, as it is not a statement of fact pertinent to any issue in the case. It must be assumed that the instruction to the jury to disregard the remark was obeyed and that it had no effect on their verdict. San Antonio Traction Co. v. Parks (Tex. Civ. App.) 97 S. W. 510.

We cannot say that the verdict of the jury awarding appellee $12,500 is so excessive as to justify the conclusion that it was the result of passion, prejudice, ,or other improper motive. The evidence shows that appellee was 65 years old and had a life expectancy of 11 years, that he was earning prior to his injury from $72 to'$100 per month, and in addition to his work for appellant he performed services at his home, working a garden, milking his cows, and feeding his hogs, etc. He was seriously and painfully injured in his back, and up to the time of the trial, more than a year after his injury, he was unable to do any work on his feet, but only use his arms and do such work as he could perform sitting down. He has suffered, and continues to suffer, pain from his injuries. The physicians who testified in the case disagreed as usual on the question of the extent and duration of appellee’s injury; but there is testimony from which the jury might find that his injury was permanent.

Upon this state of the evidence, we cannot say that the verdict is so excessive as to authorize this court to disturb the finding of the jury upon that issue.

We are of opinion that the judgment should be affirmed, and it has been so ordered.

Affirmed.
      <8=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <§^>For other cases see same, topic and ItEY-NUMBER in all Key-Numbered Digests and Indexes