author: MONTEITH, Chief Justice.

text:
    ARANDA et al. v. TEXAS & N. O. R. CO.
    No. 10970.
    Court of Civil Appeals of Texas. Galveston.
    April 18, 1940.
    Rehearing Denied May 16, 1940.

      E. T, Chew and W. J. Howard, both of Houston, for appellants.
    Jas. W. Mehaffy and Tom M. Davis, both of Houston (Baker, Botts, Andrews & Wharton, of Houston, of counsel), for appellee.
   MONTEITH, Chief Justice.

This is an appeal in an action • brought by Elvira Aranda, in her own behalf and as next friend of her four minor children, against Texas & New Orleans Railroad Company to recover damages growing out of the death of her husband, Cresencio Aranda, the father of her four children.

On the morning of April 11, 1937, Cres-encio Aranda was driving his automobile in a southerly direction along Patterson Street in the City of Houston when he was struck and killed by a passenger train operated by appellee, travelling in an easterly direction, at a point where appellee’s eastbound main line crosses Patterson Street. Two of appellee’s tracks cross Patterson Street at this -point, the southern track being the eastbound main line and the northern track being the westbound main line. Patterson. Street runs north and south, crossing the tracks at right angles. There is a clear and unobstructed view of the track in the direction from which the train was approaching from Patterson Street, the scene of- the collision, to .Shepherd Drive, a distance of at least 1,100 feet. The engineer was seated on the right-hand side of the cab of the locomotive and could not see Aranda’s automobile on the north side of the track because of the boiler of the locomotive and a curvature in the track. The fireman, who was seated on the left-hand side of the cab, testified that he first saw Aranda’s car as the locomotive was crossing Shepherd Drive; that it was at that time standing north of the north track and that he watched it continuously until just prior to the collision. Immediately prior to the collision, deceased drove west approximately 100 feet from his home on Allen Street to Patterson Street, tie turned left on Patterson Street and proceeded a few feet, bringing his car to a complete stop a short distance north of the north rail of the westbound track, where his car remained stationary for a short period of time. When the train was between 400 and 500 feet from Patterson Street, Aranda’s car moved up and came to a complete stop with the front wheels on the south rail of the westbound track, approximately 5 feet clear of the approaching train. Aran-da’s car remained in that position until the front of the locomotive was between 20 and 25 feet west of Patterson Street, when it moved directly in front of the locomotive.

Aranda was a man approximately 40 years of age and was apparently in good health and physical condition. There is no suggestion in the record that his sight and hearing were not normal.

Appellants alleged numerous specific acts a'nd omissions on the part of the appellee and its employees in the operation of its train, claimed to amount to negligence proximately causing the collision.

Appellee alleged that its train was being operated at a rate of speed which was permitted by the ordinances of the City of Houston, and that the deceased could have avoided the collision had he been properly attentive to the conditions existing at the crossing in question. It pled various acts and omissions on the part of the deceased which it alleged amounted to contributory negligence.

In answer to special issues submitted, the jury found that appellee on the occasion in question was guilty of various acts of negligence and that each of said negligent acts proximately caused said collision and the death of Aranda; that on the occasion in question Aranda was guilty of negligence in that he failed to heed the warning signals given by the whistle and the bell after hearing them, in that he drove his automobile so close to the crossing that i'f the car jerked it would be in the path of the oncoming train; and in that he drove his car in front of the approaching train, and that each of said negligent acts proximately caused said collision. The jury further found that Aran-da discovered and realized the peril of attempting to cross said track in front of the train at a time when appellee’s employees could not have avoided the collision, but within such time that deceased could have avoided the same by the exercise of reasonable care, which he failed to exercise, and that such failure was negligence and a proximate cause of the collision.

Based on the findings of contributory negligence on the part of Aranda, the court entered judgment in favor of ap-pellee in all particulars.

It is contended by appellants that there was no evidence of contributory negligence sufficient to overcome the presumption that Aranda was at the time of his death exercising proper care for his safety, and that the jury’s findings of negligence on the part of Aranda are wholly without support in the record and so against the great weight and preponderance of the testimony that judgment should have been rendered for appellants non obstante veredicto.

The rule that one is presumed to' have used ordinary care for his own protection against injury is of universal recognition and inures to the benefit of the injured party on the issue of contributory negligence, unless the evidence shows to the contrary. This presumption, however, does not obtain as against direct and positive testimony of an eye-witness as to what actually occurred. Koock v. Goodnight, Tex.Civ.App., 71 S.W.2d 927.

In the instant case the fireman, seated on the left-hand side of the locomotive cab, testified that he observed every move made by the car driven by Aranda for a distance of approximately 1,100 feet from the scene of the collision, when his automobile was standing north of the north track and the locomotive was crossing Shepherd Drive. He testified that the train was then travelling at a speed of between 20 and 25 miles per hour; that the bell was continuously ringing and the regular crossing whistle was being blown at each crossing between Shepherd Drive and Patterson Street, and that when the train was between 400 and 500 feet from Patterson Street he observed Aranda’s car drive up and come to a complete stop, with the front wheels on the south rail of the westbound track approximately 5 feet clear of the approaching train; that when the train was within 25 or 30 feet of Patterson Street the car jerked two or three times arid moved directly in front of the locomotive. He testified that he attempted to warn the engineer to apply the emergency brake, but that the noise of the train prevented the engineer from-hearing him and that he then stepped across the cab of the locomotive to the engineer’s side and applied the emergency brake. No reason is shown why Aranda would not have discovered the approaching train in time to have prevented the collision, if he had looked or listened.

It has been uniformly held that where a person in possession of his faculties steps or drives immediately in front of a moving train, the approach of which is unobstructed from his view, and which could have been seen and heard by him by the use of his ordinary faculties, or by taking the necessary precaution, is guilty of contributory negligence as a matter of law when he fails to use his ordinary faculties, and, as a result thereof, is injured. Galveston, H. & S. A. Ry. Co. v. Price, Tex.Com.App., 240 S.W. 524; Gulf, C. & S. F. Railway v. Gaddis, Tex.Com.App., 208 S.W. 895; Texas & N. O. R. R. Co. v. Houston Undertaking Co., Tex.Civ.App., 218 S.W. 84.

In the case of Dirr v. San Antonio & A. P. Ry. Co., Tex.Civ.App., 260 S.W. 1108, 1111, under a state of facts similar in many respects to those in the instant case, the court in passing on the identical question presented here, says: “Under these facts and circumstances, it was certainly a question for the jury to say whether appellant was guilty of negligence in failing, between the time he started his car after looking and listening at a point where his view of the track was obstructed, to again look for an approaching train when he reached a' point where his view was unobstructed, or that by the exercise of ordinary care he should have seen the approaching train. It was also the province of the jury to determine whether appellant, in the exercise of ordinary care, could have stopped his car after discovering the approaching train, and prevented the accident. We must conclude that the jury’s verdict on this issue is sufficiently supported by the evidence; and the judgment will be affirmed.”

In the absence of some fact or circumstance which might have prevented Aranda from hearing the warnings given and from seeing the approaching train, the jury was warranted in finding that he heard what a normal person was bound to hear under the circumstances and that he was negligent in driving his car in front of the approaching train, and these findings are conclusive and binding on this court.

Appellants contend that under the uncon-troverted evidence they were entitled to recover under the doctrine of discovered peril, and that the finding of the jury in favor of appellee on the issue of discovered peril is so against the weight and preponderance of the testimony that it ought not to be permitted to stand.

The evidence shows that Aranda’s car was in a position of safety until the train was within 25 or 30 feet of the point of collision; that the fireman was the only person on the train in position to control its movements who could and did see Aran-da prior to the collision; that warning signals had been given, and that it would have been impossible to slacken the speed of the train before reaching the point of collision after the fireman realized that Aranda would leave his place of safety and move in front of the approaching train.

The jury found on this evidence against appellants and in favor of appellee on the issues of discovered peril.

The doctrine of discovered peril will not apply in this case against appellee, unless it is shown that its fireman actually discovered Aranda in a position of peril and realized not only his danger but that he could not or would not extricate himself therefrom at a time when appellee’s employees in the exercise of ordinary care in the use of the means at hand, consistent with their safety and that of their train, could have avoided the collision. Galveston, H. & H. Ry. Co. v. Sloman, Tex.Civ.App., 244 S.W. 268; Galveston, H. & S. A. Ry. Co. v. Price, Tex.Com.App., 240 S.W. 524; Schaff v. Copass, Tex.Civ.App., 262 S.W. 234; Northern Texas Traction Co. v. Weed, Tex.Com.App., 300 S.W. 41.

The Supreme Court has passed on the identical question presented here in the case of Houston & T. C. Ry. Co. v. O’Donnell, 99 Tex. 636, 92 S.W. 409, 410, in which a pedestrian was struck by a train. The engineer and fireman saw plaintiff standing on the right of way near the track when the train was 600 yards away, but did not slacken the speed. Plaintiff was deaf and did not hear the whistle. When the train was near he stepped on the track and was struck. In holding that the issue of discovered peril was not raised by the evidence, the court says: “The enginemen, being ignorant of O’Donnell’s deafness, were charged with no duty which would arise from the existence of that infirmity; but they had the right to treat him as a person in full possession of his senses, and, seeing him near the track, might presume that he would make proper use of his faculties, and would get far enough away from the track to insure his own safety. They were not required to anticipate that he would be guilty of an act of negligence, either by remaining in-danger, if he was so, or by putting him-sélf in danger.”

It is obvious that a person in an automobile standing beside a railway track would be injured in the event he 'drove on to the track in front of an approaching train. While he may be in danger, those controlling the train are not required to assume that he will drive on to said track in front of the approaching train, and until there is a realization that he will do so no duty of averting the collision arises, and a jury could not properly find that they knew it would be done in the absence of proof of knowledge of that fact. Ft. Worth & D. C. Ry. Co. v. Shetter, 94 Tex. 196, 59 S.W. 533; Charbonneau v. Hupaylo, Tex.Civ.App., 100 S.W.2d 745; Texas & N. O. R. R. Co. v. Wagner, Tex.Civ.App., 262 S.W. 902; Thurmond v. Pepper, Tex.Civ.App., 119 S.W.2d 900; Gersdorf-Sloan Ambulance Co. v. Kenty, Tex.Civ.App., 75 S.W.2d 903.

Under the above authorities and under this record we think that there is ample evidence to support the jury’s findings on the issues of discovered peril submitted in behalf of both appellants and appellee, under the well settled rule that an appellate court will not disturb the findings of a jury on conflicting evidence where there is some evidence to support their verdict, unless the verdict is so overwhelmingly against it as to shock the conscience or to show clearly that the conclusion reached was wrong, or was the result of some passion, prejudice, or improper motive. Massie v. City of Floydada, Tex.Civ.App., 112 S.W.2d 243; El Paso Electric Co. v. Whitenack, Tex.Com.App., 1 S.W.2d 594; Commercial Casualty Ins. Co. v. Hamrick, Tex.Civ.App., 60 S.W.2d 247; Phipps v. American National Ins. Co., Tex.Civ.App., 116 S.W.2d 800.

Appellants contend that there are numerous irreconcilable conflicts in the findings of the jury on contributory negligence by Aranda, which preclude the entering of a judgment in favor of appellee.

Our courts have uniformly held that apparent conflicts in the jury’s answers should be reconciled if this can be reasonably done in the light of the facts in a particular case, the pleadings and evidence, the manner in which the issues were submitted, and in view of the other findings, when considered as a whole. It is further held that findings on ultimate facts will control those on merely eviden-tiary issues and specific findings will control general ones, and that if, upon a reasonable interpretation of the findings, it appears that they are not in real and irreconcilable conflict, that they then form the proper basis for judgment. Graham v. Hines, Tex.Civ.App., 240 S. W. 1015; Bragg v. Hughes, Tex.Civ.App., 53 S.W.2d 151; First National Bank v. Rush, Tex.Com.App., 246 S.W.2d 349 ; 41 Tex.Jur. 1224, § 360.

It is further held that the existence of an irreconcilable conflict between certain findings is immaterial, if there remains at least one finding supporting the judgment which is not in conflict with any other. Childers v. Eureka Laundry, etc., Tex.Civ.App., 33 S.W.2d 784; Gulf C. & S. F. Ry. Co. v. Canty, 115 Tex. 537, 285 S.W. 296; Cortimeglia v. Davis, 116 Tex. 412, 292 S.W. 875.

While a cursory inspection of the findings in question suggests the possibility of a conflict, after a thorough examination of the issues in question and the answers-thereto, we are convinced that they can be reasonably and logically reconciled and made compatible to each other.

Without discussing in detail the alleged conflict presented in each of appellants’ propositions, we think that the-jury’s findings that Aranda had his car under proper control as he approached the Patterson Street crossing and that he immediately applied the brakes on the discovery of the train, are not, as claimed by appellants, inconsistent with other findings that he was guilty of acts of negligence which proximately caused the collision, since Aranda could have had his-car under proper control as he approached the crossing and could have applied his-brakes upon discovering the train, since the evidence shows that he did bring- his car to a complete stop before reaching the crossing. It is uncontroverted that his acts which were found to be negligence occurred after he had brought his car to a complete stop.

There is no irreconcilable conflict between the finding that Aranda was negligent in driving his car so close to the track that if it jerked it would be in the path of the oncoming train and the finding that he drove his car in front of the train, since a finding that the car jerked can be reconciled with a finding that Aranda did drive it in front of the train.

The findings complained of indicate an effort on the part of the jury to follow the evidence and the court’s instructions. They can and, under the law, must be reconciled.

Finding no reversible error in the record, the judgment of the trial court is in, all things affirmed.

Affirmed.


source: Caselaw Access Project

author: FOLLEY, Justice.

license: Public Domain

text:
    PANHANDLE & S. F. RY. CO. et al. v. MONTGOMERY.
    No. 5132.
    Court of Civil Appeals of Texas. Amarillo.
    March 25, 1940.
    Rehearing Denied May 13, 1940.

      Terry, Cavin & Mills, of Galveston, S. D. Stennis and Sturgeon & Sturgeon, all of Pampa, and Hoover, Hoover & Cussen, of Canadian, for appellants. '
    John F. Studer and Willis & Via, all of Pampa, for appellee.
   FOLLEY, Justice.

This is an appeal from a judgment in the sum of $2,760 recovered by the plaintiff, S. J. Montgomery, against the defendants, Panhandle & Santa Fe Railway Company and the Southern Pacific Company, for damages in connection with a shipment of 383 head of feeder stock calves from Mos-quero, New Mexico, to Mendota, Texas. Such cattle were shipped without a caretaker.

The plaintiff alleged in substance that he delivered the 383 head of cattle to the Southern Pacific Company at Mosquero, New Mexico; that.they were loaded on the cars of such railway company at such place and by it transported to Tucumcari, New Mexico, where they were accepted by the Rock Island Railway Company; that the latter company transported the cattle to Amarillo, Texas, where they were delivered to the Panhandle & Santa Fe Railway Company, which company transported them to Mendota, Texas; that the cattle were delivered to the Southern Pacific Company on October 30, .1937, in good condition; that the cattle were unreasonably delayed and unreasonably unloaded and handled in pens and kept en route longer than thirty-six hours; that such cattle were improperly bedded in cars containing some sort of cinders which emitted a pungent and irritating dust which caused a sinus and bronchial infection among the cattle; that the plaintiff and his agent did not know the vicious properties of such dust until after the shipment was made; that the defendants only delivered to the plaintiff 368 head of cattle alive at Mendota; that seven of these were delivered in a dying condition -and did die shortly thereafter; that three more head died within a period of three months and six more died during the following summer; that the remainder of the cattle were delivered in a badly damaged condition; that the bedding so furnished, together with the delays and mistreatment of the cattle during shipment, constituted negligence on the part of the defendants which proximately caused the injuries to the cattle; and that by reason of such injuries plaintiff was compelled to feed extra cake to the cattle of the value of $150 and had to administer vaccine of the value of $45.' Plaintiff sought damages in the sum of $30 per head for the dead and missing cattle and $5 per head for the remainder of the cattle.

After filing a general demurrer and general denial, the defendants alleged that the plaintiff undertook to load the cattle at Mosquero and that his agents inspected and accepted the cars with the bedding furnished by the initial c-arriers; that such inspection and acceptance of the bedding in such cars precluded a recovery of 'any damage which was occasioned thereby; that before loading the cattle they were driven on a hot day a distance of many miles to the point of shipment and arrived at Mosquero late in the afternoon in a rundown, hot, panting and weakened condition; and that if any of such cattle were injured or died en route such was caused by the manner in which they were' driven to the shipping point or by their inherent weakness.

The cause was submitted to a jury the findings of which acquitted the defendants of all acts of negligence except that alleged in regard to the bedding furnished in the cars at Mosquero. It was upon the remaining findings of the jury that the judgment was based. These findings in substance were as follows: That the plaintiff’s cattle at the time they were loaded for shipment were in proper condition to be shipped; that 373 head of plaintiff’s cattle were injured; that 383 head were loaded in the railway cars at Mosquero; that the bedding furnished at Mosquero was not the proper bedding for cattle; that the furnishing of such bedding was negligence and the proximate cause of the injuries and death of the cattle; that the market value of the cattle at the time and in the condition in which they arrived at Mendota was $24 per live head.; that had such cattle been delivered in the exercise of ordinary care their market value would have been $30 per head; that it was necessary to administer vaccine to the cattle on account of their condition at the reasonable cash value of $45; that on account of the injured condition of the cattle it was reasonably necessary to feed plaintiff’s cattle extra cake of the reasonable value of $150; that the cattle were not in a hot or panting condition or in an emaciated or run-down or weakened condition at the time they were received by the Southern Pacific Company for shipment; and that the agent of the plaintiff did not know lio-w the cars in question were bedded at the time the cattle were loaded. The court thereupon rendered judgment for the plaintiff against both defendants in the sum of $2,760; the manner of arriving at such sum we shall later discuss.

Since the evidence shows that the bedding was furnished by the Southern Pacific Company at Mosquero, New Mexico, the defendant Panhandle & Santa Fe Railway Company contends that it was error for the court, under the above verdict of the jury, to render judgment against it. Neither of the defendants sought any relief as against the other in the pleadings upon which the trial was had. Therefore, the question of contribution or that of adjusting the equities, if any, of the defendants as between themselves was not before the trial court and is not properly before this court. This being an interstate shipment of cattle the recovery will be governed by Title 49 of U.S.C.A. § 20, Par. (11), with reference to interstate shipments. This act as it now exists, we think, clearly implies that “any common carrier delivering property received for transportation in interstate commerce, and transported, is liable to the owner thereof for any damage caused by such delivering carrier or by the carrier originally receiving it or by any intervening carrier over whose line the property has passed; and, accordingly, the delivering carrier will be held liable thereunder in an action by the shipper for damages caused by the other carriers.” 13 C.J.S., Carriers, pp. 929, 930, § 424. The assignment will therefore be overruled. Stinson v. Yazoo & M. V. R. Co., La.App., 159 So. 422; Bonfiglio v. New York, N. H. & H. R. Co., 292 Mass. 287, 198 N.E. 236; Perkel v. Pennsylvania R. Co., 148 Misc. 284, 265 N.Y.S. 597.

The defendants also assert that since the jury found the cattle were transported from the point of origin to the point of destination with ordinary care and reasonable diligence the presumption of law is that the damaged condition in which the cattle were delivered was due to the inherent vice of the animals and not to any negligence of the defendants, and therefore the court erred in rendering judgment herein. We think it sufficient to say that the jury made no such finding. On the contrary, the jury found that the cars were improperly bedded and that such improper bedding was negligence and the proximate cause of the injuries.

By numerous propositions, most of which are mere repetitions, the defendants attack the finding of the jury with reference to the improper bedding in the cars, and, as an incident thereto attack the judgment based upon, such finding. They assert, first, that the agents of the plaintiff inspected the cars before they were loaded, that such agents accepted such bedding without complaint and therefore the plaintiff was estopped to claim any damages by reason of the injuries caused by such bedding. Secondly, they assert that the evidence showed that cinders are commonly used as bedding for cattle and therefore the defendants exercised ordinary care in furnishing such bedding as is customarily used for shipments of cattle.

The evidence shows that the plaintiff purchased his cattle near Mos-quero a short time before they were shipped. Roy Mathers, his friend and neighbor also purchased other cattle near Mosquero about the same time. The plaintiff did not go in person from his home in Miami, Texas to Mosquero to load his cattle but sent his employee, C. L. Dial, to attend to the shipping. Since Mathers was to ship his cattle at the same time and by the same train the plaintiff requested him to assist Dial in loading plaintiff’s cattle, however, the testimony failed to show that Mathers had any authority from the plaintiff to accept or reject the cars upon which plaintiff’s cattle were loaded. Mathers’ cattle were placed in two cars of the train and plaintiff's were loaded in six other cars, all of which were bedded with cinders. Dial did not inspect the cars and was absent at least part of the time while they were being loaded. His testimony was to the effect that he did not take part in' the loading of the cattle but was at the depot near the stock pens most of the time while they were being loaded. The cattle in question were placed in the stock pens after having been driven from a nearby ranch where they were purchased and while in these pens were inspected by the cattle inspector. Mathers did see the bedding in the cars and was present while all the cattle were being inspected and loaded, His testimony was that his cattle were loaded first and that when the first car was loaded a fog of dust was emitting from the car as the door was closed. He further testified that such dust caused him to sneeze and cough and seriously affected his breathing. He stated that the cars into which the plaintiff’s cattle were loaded were in the same condition. However, this witness further testified that although he saw such fog emitting from the cars he did not know what condition it would produce in the cattle. In connection with this testimony the court at the request of the defendants, submitted the following issue: “Do you find from a preponderance of the evidence that the agent of the plaintiff knew how the cars in question were bedded at the time plaintiff’s cattle was loaded into them?” This issue the jury answered in the negative. This issue as presented and answered was an implied finding that Mathers was not the agent of the plaintiff and that Dial did not know the condition of the cars, and there was sufficient testimony to sustain such findings. The evidence showed that neither Mathers nor Dial had ever shipped cattle where cinders were used as bedding and if Dial had seen the bedding he would, no doubt, have known no more about the evil effect of such bedding than Mathers. Under such circumstances we think the defendants failed to establish the defense that the plaintiff, through his agents, examined and approved the bedding used in the transportation of the cattle. 8 Tex.Jur. 465, para. 314.

It is also our opinion that the defendants would not be excused from negligence with reference to the bedding by simply showing that cinders are commonly used as such. They must go further, we think, and show that the cinders actually used in this shipment of cattle were the same sort of cinders which are commonly used by carriers of livestock. This burden the defendants failed to discharge. The agent of the Southern Pacific Company at Mosquero testified that his company used cinders wholly for bedding in cattle cars and admitted that all the cars in question were so bedded. There was other testimony that cinders had been habitually used by such railroad and by many other carriers for many years. However, the agent at Mosquero did not know where the particular cinders in question came from nor when or where the cars had been bedded. There was no testimony to show the origin or exact quality of the cinders and the evidence as a whole fails to show that they were precisely the same identical sort that were commonly used by railroad carriers. The agent for the Southern Pacific Company at Tucumcari testified that cinders were commonly used as bedding and that they were considered very good bedding, however, he admitted on cross-examination that it was not customary for the Southern Pacific or any other railroad to use cinders which emitted a cloud of dust when trampled upon.

The plaintiff’s witnesses established the fact that a fog of dust and fumes arose from the bedding used which entered the eyes and nostrils of the cattle and of the witnesses, causing both man and animal to sneeze and cough. When the cattle were delivered at Mendota they were still sneezing and coughing and their noses were running. They were also in a weak and emaciated condition from which the testimony shows they never fully recovered. The defendants admitted that two head of plaintiff’s cattle were dead at Tucumcari and that three more were dead in the cars upon arrival at Mendota. The jury found that 383 head of cattle were loaded for plaintiff at Mosquero, while it was shown without controversy that only 368 head were delivered alive at Mendota, which was IS head less than loaded. In regard to the 10 head not accounted for among the 15 short, the defendants attempted to show that only 373 were actually loaded at Mos-quero, but the jury resolved this issue against the defendants upon controverted testimony. The plaintiff’s witnesses further established the fact that of the 368 live head delivered at Mendota, one died' within thirty minutes after being unloaded, another died the same week, 6 more died within ten days, 2 more died a little later and 1 more died the following spring. Therefore the aggregate of the dead and missing was 26 head, S of which admittedly died en route, 10 were missing and unaccounted for and 11 died after delivery. The testimony was further to the effect that the 357 head which finally survived were in a greatly damaged condition from which they had not recovered the following summer. Under such circumstances we think the evidence was ample to support the finding that the cars were improperly bedded and at the same time to overcome’the defensive theory that the cinders used in this shipment were the same sort commonly used in shipping cattle. Certainly no such ill effects as these commonly occurred in the use of cinders as bedding and therefore the presumption prevails that although cinders were used in this shipment they were not the identical sort commonly used by the Southern Pacific Company or by any other carrier of livestock, but on the contrary possessed some vice which the cinders commonly used did not contain.

The defendants next contend the court erred in permitting the witnesses C. L. Dial and Millard Donaldson to testify as to the market value of the cattle at Men-dota and further erred in submitting the issue as to market value based upon such testimony. This assignment is based chiefly upon the fact that only a few people resided at Mendota and no cattle were shown to have been sold at such place for several years. Each of these witnesses was a cattle man of long experience and was familiar with the value of cattle generally at Mendota, at Miami, which was fourteen miles from Mendota, and at Canadian, which was only seven miles from Mendota. The testimony of these witnesses was to the effect that the market value was the same generally in that section of the State and we think they showed themselves qualified in every respect to testify to the value of cattle at Mendota. Rogers & Adams v. Lancaster et al., Tex.Com.App., 248 S.W. 660; Galveston, H. & S. A. R. Co. v. Saunders, Tex.Civ.App., 141 S.W. 829, writ refused; Chicago, R. I. & G. R. Co. v. Swaggerty, Tex.Civ.App., 163 S.W. 317, writ refused; O’Brien v. McDow, Tex.Civ.App., 8 S.W.2d 561, writ dismissed.

The contention is next made that the court erred in permitting the witness Dial to testify that he did not notice that the cattle regained their weight but he did not think they did. The defendants assert that the court overruled their objections to such testimony. Upon checking the statement of facts we find such not to he the case. The court sustained the objections to such testimony and instructed the jury not to consider it. The assignment is therefore overruled.

Another proposition is presented In connection with the court’s permitting the witness Roy Mathers to testify that the bedding used was not “proper bedding”. The defendants contend such testimony invaded the province of the jury. If such testimony constituted an invasion of the province of the jury, which we doubt under the record presented, the defendants a're in no position to complain about it. 'They introduced numerous witnesses who testified that cinders constituted proper bedding. Moreover, the witness Mathers, who had been in the cattle business for forty-six years, was shown to have had considerable experience in shipping cattle.' His testimony in regard to the bedding was in the realm of expert testimony concerning a matter about which the jury was not calculated to have been so well informed. The assignment is overruled. 8 Tex.Jur. 573, para. 403.

The further contention is made that the court erred in refusing to submit certain requested issues relative to the inherent weakness and condition of the cattle at the time they were delivered for shipment. We think such matters were amply covered in the court’s main charge. As above stated the jury found the cattle were in proper condition to be shipped and that they were not in a hot and panting condition nor in an emaciated or run-down or weakened condition. The pleadings and the evidence raise no issues other than these as to the condition of the cattle at the time they were shipped. It was therefore not error for the court to refuse to submit issues which in effect were mere repetitions of issues already submitted.

Although the defendants have not raised the question in their brief we think there is fundamental error presented in the record by reason of the double recovery allowed in the judgment in connection with the $45 for the vaccine and the $150 for the extra cake fed to the cattle. The plaintiff pleaded and proved the difference in the market value of the cattle at destination in the condition in which the cattle should have been delivered but for the carrier’s negligence and the condition in which they were actually delivered. It was upon this pleading and evidence that the issues of damages were submitted to the jury and upon the findings in response to such issues that the judgment was predicated. It has been held repeatedly that such difference in the market value is the measure of the shipper’s damages, but to add to this damage sums expended thereafter for care and treatment of the cattle would, under the pleadings and facts of this case, amount to a double recovery. In this case the damages allowed at the time of delivery as measured by the difference in market value of the cattle would compensate the plaintiff for all damages of whatever nature suffered by him in the shipment. It is therefore apparent that the court committed fundamental error in rendering judgment for the total sum of $195 for the care and treatment of the cattle after their delivery. Lancaster et al. v. Whittle, Tex.Civ.App., 210 S.W. 334; St. Louis & S. W. Ry. Co. of Texas et al. v. Foster, Tex.Civ.App., 89 S.W. 450; International & G. N. R. Co. et al. v. Startz, 37 Tex.Civ.App. 51, 82 S.W. 1071; Texas & P. R. Co. v. Prunty, 111 Tex. 162, 230 S.W. 396; Texas & N. O. R. Co. v. Tide et al., Tex.Civ.App., 117 S.W.2d 479; Gulf, C. & S. F. R. Co. v. Stanley, 89 Tex. 42, 33 S.W. 109; Gulf, C. & S. F. R. Co. v. Helms Bros. Tex.Civ.App., 210 S.W. 853; Ft. Worth & D. C. R. Co. v. Allen, Tex.Civ.App., 189 S.W. 765.

Moreover, irrespective of the vice in connection with this double recovery we doubt the findings of the jury relative to these items were sufficiently definite to charge the defendants therefor if they were otherwise allowable. The issues submitted as to such expenses did not restrict the necessity for the vaccine or the extra cake to such necessity as was occasioned by the negligent conduct of the defendants or by reason of injuries proximately caused by them. Furthermore, with reference to the vaccine the plaintiff testified that he always administered such vaccine merely as a routine matter and that he would have vaccinated his cattle if he had purchased them just across the fence from his own pasture and this regardless of their condition.

We think there is also other fundamental error in the record which has not been presented in the brief of the defendants. The judgment herein was rendered upon the motion filed by the plaintiff. In such motion the plaintiff asked for judgment for $30 per head for the 26 head of cattle which died or were missing and for $5 per head for the remaining 357 head which survived, the limit of $5 being asked for the surviving cattle because such sum was the maximum pleaded by the plaintiff. Such motion was granted and judgment so rendered for $780 for the 26 head of dead or missing cattle, $1,785 for the 357 head which survived, $45 for the vaccine and $150 for the extra cake fed to the cattle by reason.of the injuries, making a total of $2,760. In response to special issue No. 8 the jury found that “the market value of plaintiffs cattle per head at the time and in the condition in which they arrived at Mendota” was “$24.00 per live head”. In response to special issue No. 9 the jury found the market value per head of plaintiff’s cattle would have been $30.00 at the time and in the condition in which they would have been delivered in the exercise of ordinary care. From these two findings it will be seen the jury, in effect, fixed $6 as the damages to the live head and $30 for the dead and missing. But what “live head” did the jury have reference to?' Was it the 368 live head which came off the cars at Mendota, 11 of which later died, or was it the 357 head which finally lived after the 11 had died? These 11 head which died after delivery were alive when delivered and certainly they formed a part of the “condition” of the herd upon arrival at Mendota. It is entirely possible the jury in fixing the value of the “live head”' at $24 had in mind the aggregate value per head of the 368 cattle delivered, 11 of which later died. Particularly might this be true since issue No. 8 inquired as to the value of the cattle “at the time and in the condition in which they arrived at Men-dota”. If the jury had such in mind judgment was rendered for $275 more than this portion of the verdict authorized. As calculated by the court, judgment was rendered in the total sum of $2,565 as damages to the cattle independent of the amounts expended for vaccine and cake. Of this amount $780 was for the 26 head which were missing or dead, and $1,785 thereof was $5 per head for the 357 which survived. If the jury, in fixing the value of $24 for the live cattle, meant for such value to apply to the 368 head delivered alive regardless of the fact that 11 of them later died, the sum of $2,565 in damages thus assessed in the judgment is excessive. The 368 head, at $5 per head under the limitations of plaintiff’s pleadings, would amount to $1,840. The 15 head either dead or missing before the delivery of the 368 would, at $30 per head, amount to $450, which, with the $1,840; would aggregate, the sum of $2,290 as damages for injuries to the cattle independent of the damages for vaccine and cake, or a sum of $275 less than fixed by the court upon the verdict of the jury. In other words, instead of allowing $30 per head or $330 for the 11 which died after delivery, as the court did, it is. possible the jury had in mind only $6 for these 11 as well as the other 357 which were delivered at Mendota, which, under the limitations of the plaintiff’s pleadings, must be reduced to $5 per head or $55-for these 11 cattle, instead of the $330 allowed in the judgment, thus making the $275 difference.

There are only two constructions-in this respect which possibly could be-placed upon the verdict of the jury. One-is, in keeping with the court’s judgment,, that the jury did not mean to include the 11 head of cattle which died after delivery in the valuation of $24 per live head. The other is the interpretation that the jury intended to include the 11 head in such valuation which possibility has given rise to the error in the judgment. However, if the defendants receive the benefit of the construction of the verdict most favorable to them they could not be prejudiced in any manner in this respect. If the judgment should be reduced in the sum of $275, the amount of the discrepancy in the only two possible constructions to be placed up-on this portion of the verdict, we can see no possible harm that could result to the defendants. Therefore, a remittitur by plaintiffs for the amount of $275 for this discrepancy plus the $195 for the vaccine .and extra cake would cure all possible defects in regard to the excessiveness of the judgment. Under this record a recovery of $1,840 for the 368 cattle delivered at $5 per head and of $450 for the 15 head dead or missing before delivery at $30 per head, a total of $2,290, would do no violence either to the jury’s verdict or to the defendants.

The trial court allowed interest at 6% on $1,785 of the amount of judgment rendered from November 1, 1937, the date of the delivery of the cattle at Men-dota. This was an allowance of interest as damages upon the amount of damages sustained to the 357 head of cattle which survived. No interest was allowed for the dead and missing cattle nor for the vaccine and extra cake. The plaintiff in his petition asked for interest at 6% upon the full sum of $2,885, the total amount claimed in the petition, from November 1, 1937, the date of the injuries. We think the .authorities are now uniform to the effect that under proper pleadings interest may be recovered as a matter of law, not as interest eo nomine, but as damages upon the amount of damages found to exist at the time of the injuries, provided, in a case tried before a jury, that such jury has not already included such interest as damages in its verdict. Ewing et al. v. Wm. L. Foley, Inc., 115 Tex. 222, 280 S.W. 499, 44 A.L.R. 627; Davis, Agent, v. Morris, Tex.Civ.App., 32 S.W.2d 255, writ refused; Miller et al. v. Miller, Tex.Civ.App., 292 S.W. 917, writ refused; Settegast et al. v. Timmins et al., Tex.Civ.App., 6 S.W.2d 425, writ refused; Watkins v. Junker, 90 Tex. 584, 40 S.W. 11; Schaff v. Hill & Thompson, Tex.Civ.App., 238 S.W. 1037; Texas & P. R. Co. v. Erwin, Tex.Civ.App., 180 S.W. 662; Ft. Worth & D. C. R. Co. v. Greathouse, 82 Tex. 104, 17 S.W. 834; Texas & P. R. Co. et al. v. Murtishaw, 34 Tex.Civ.App. 447, 78 S.W. 953; St. Louis Southwestern R. Co. et al. v. Buice, Tex.Civ.App., 251 S.W. 584. The issues as to damages herein submitted to the jury, which inquired as to values at the time of delivery of the cattle, could not reasonably have included interest thereafter accruing as a part of such damages. Therefore, we think the plaintiff would be entitled to recover 6% per annum interest as damages on the sum of $2,290 from November 1, 1937, until paid.

If the plaintiff within ten days from the date of this opinion files a remittitur for the sum of $470 for the excessive recovery in the judgment as above outlined, the judgment of the trial court will be reformed so as to allow the plaintiff a recovery against the defendants for $2,290 with interest thereon as damages at 6% per annum from November 1, 1937, until paid, and for costs of the trial court but not of this court, and as so reformed, the judgment will -be affirmed. Unless such remittitur is filed within the time allowed the judgment will be reversed and the cause remanded.

On Motion for Rehearing.

The plaintiff has filed the remittitur within the required time as indicated in our original opinion and the judgment of this court has been entered reforming and affirming the trial court judgment in keeping with the statement in our original opinion.

In a motion for rehearing the defendants for the first time present the contention that the pleadings of the plaintiff were insufficient to support the judgment of the trial court. In this connection they assert that the plaintiff in his original amended petition charged that the cattle were damaged by reason of rough handling, unnecessary delay and failure to properly feed and water the cattle en route; that in his supplemental petition plaintiff for the first time charged that the cattle were damaged by reason of the bedding used; and that under the law and rules of court applicable to such a situation the supplemental petition could not afford an independent basis for recovery upon a cause of action which was not asserted in the amended original petition.

In the amended original petition 'the plaintiff alleged that the cattle were delivered to the initial carrier in good condition and that they were received by plaintiff from the delivering carrier in a badly damaged condition and in a “sneezing and wheezing condition”. The defendant Panhandle & Santa Fe Railway Company, in its first amended original answer, was the first party in this law suit to specifically mention the bedding of the cars. In such answer the Santa Fe alleged that the plaintiff through his agents inspected the bedding of the cars into which the cattle were loaded at Mosquero and accepted the cars in their then condition. It was further alleged that such inspection and acceptance precluded a recovery by the plaintiff for damages, if any, resulting from the bedding of the cars. Following the filing of this amended answer the plaintiff filed his first supplemental petition rebutting such allegations of the railway company and alleging specifically for the first time the vices and defects of the bedding as being the cause of the injuries. This supplemental petition was addressed to the answer of the Santa Fe and also to the answer of the Southern .Pacific Company, which latter company had adopted the pleadings of the Santa Fe.

The defendants at no time excepted to the allegations in the supplemental pleadings of the plaintiff but on the contrary joined issue with the plaintiff on the matter thus raised by not only introducing testimony relative thereto but also in seeking and obtaining the submission of a special issue in connection therewith. In fact, this issue became the major controversy in the trial court and by the briefs of all the parties herein was made the major issue in this court. While we recognize the general rule that the plaintiff cannot recover a judgment upon a cause of action asserted only in a supplemental petition (Service Parts Co., Inc., v. Bizzell et al., Tex.Civ.App., 120 S.W.2d 919, and authorities cited), we also recognize the general rule of equal dignity that a defendant, may by its conduct waive such a defective presentation of plaintiff’s cause of action. Galveston, H. & S. A. R. Co. v. Pennington et al., Tex.Civ.App., 166 S.W. 464; Glenn v. Dallas County Bois D’Arc Island Levee Dist., 114 Tex. 325, 268 S.W. 452; Aniol et al. v. Aniol et al., Tex.Civ.App., 62 S.W.2d 668; St. Louis Southwestern R. Co. of Texas v. Larkin, Tex.Civ.App., 34 S.W. 2d 693; Stephens v. Anson Motor Co., Tex.Civ.App., 21 S.W.2d 699. In this connection it has been repeatedly held that in the absence of an exception a supplemental petition may be considered as an amendment to the cause of action alleged in the original pleadings. Crow v. First Nat. Bank of Whitney, Tex.Civ.App., 64 S.W.2d 377, writ refused; Wilson v. Hagins, Tex.Com.App., 50 S.W.2d 797; Citizens’ Mutual Life & Accident Ass’n of Texas v. Ragle, Tex.Civ.App., 81 S.W.2d 264; Stallings et al. v. Williams, Tex.Civ.App., 235 S.W. 636; Johnson et al. v. White, Tex.Civ.App., 27 S.W. 174, writ denied; Lemp v. Armengol et al., 86 Tex. 690, 26 S.W. 941; Rains v. Wheeler, 76 Tex. 390, 13 S.W. 324. The reason for the latter rule is apparent on its face. As-expressed in some of the authorities on-the subject, it would be inequitable for a defendant to join issue with the plaintiff upon a cause of action asserted only in a supplemental petition and thereby gamble with his adversary on the outcome of the issue thus presented, and then, in the event of an adverse judgment, permit the defendant for the first time to successfully urge that the plaintiff had not correctly pleaded such cause of action. It is therefore our opinion the pleadings of the plaintiff under the record presented are sufficient to support the recovery herein.

The motion for rehearing is overruled.


author: BROWN, Justice.

text:
    HAYES et al. v. COMMERCIAL STANDARD INS. CO.
    No. 14055.
    Court of Civil Appeals of Texas. Fort Worth.
    April 12, 1940.
    Rehearing Denied May 17, 1940.

      Geo. C. Kemble and S. Langford Carlton, both of Fort Worth, and Lillard & Gibbons, of Oklahoma City, Okl., for appellants.
    Buck & Knapp, of Fort Worth, for ap-pellee.
   BROWN, Justice.

This is a Workmen’s Compensation case that has caused us no little concern.

We apologize for not having decided the case sooner, but our desire to reach an unanimous conclusion, after repeated consultations, has prompted the delay.

Mattie Mae Burleson, an unmarried minor, was employed as a waitress, in the Coffee Shop of the Texas Hotel (of Fort Worth) and on or about November 29th, 1937, claims that she sustained a fall, by slipping on a wet, “slick” place, from which she sustained bodily injuries. Her chief complaint is that the fall tore her uterus from its natural place, causing her the flooding, pain and suffering upon which she relies to sustain her suit for compensation.

She did not file her claim and give notice until- early in September, 1938, and she alleged that she had good cause for not doing so sooner, in that she did not know until on or about August, 1938, that her fall was the cause of her injuries; that she was not advised by any physician who treated her prior to August, 1938, that the fall caused her injuries; that she was a girl about 20 years old, and not skilled in medical matters; that had she known the true facts she would have filed her claim, etc., sooner.

Her claim was refused by the Industrial Accident Board, as shown by its judgment, solely upon the theory that the evidence adduced by her failed to show that her condition is the result of an accidental injury suffered in the course of her employment.

Having appealed from the Board’s award, the cause was lodged in the District Court of Tarrant County and tried to a jury. When the taking of evidence was concluded, the trial court instructed the jury to return a verdict for the defendant insurance carrier on its motion therefor.

Judgment was rendered for the defendant and the plaintiff and her husband, whom she married since filing her suit, have appealed.

The trial court must have instructed a.verdict for the defendant upon the theory that under the testimony it has been shown that good cause for not sooner giving notice and filing her claim does not exist as a matter of law. That is to say, that, viewing the evidence adduced from every standpoint, reasonable minds cannot differ on the question of whether or not this claimant has shown good cause for not presenting her claim sooner.

One of the outstanding cases before our Supreme Court is that of Mingus v. Wadley et al., 115 Tex. 551, 285 S.W. 1084, and in that case we are admonished to construe liberally the Workmen’s Compensation Acts out of which the cause before us grows (Art. 8307, Rev. Civil Statutes).

We do not believe that it will serve any good purpose to set out in this opinion all of the evidence and testimony, which must be looked to in determining whether or not an issue of fact, on the question of “good cause” for not sooner giving notice and filing a claim, is shown.

No two cases will ever be exactly alike, and we shall content ourselves with saying that the evidence is conflicting, in that the claimant’s testimony is, in several instances, shown to be contradictory.

We take it that, in such a situation, even though it may appear to us that the overwhelming preponderance of the evidence is to the effect that the claimant did not show “good cause” for not sooner presenting her claim, nevertheless we are not privileged to act upon such hypothesis here, because the trial court has refused to permit the jury to weigh such evidence and to make findings thereon.

For the reason that we do not believe we have such right here, it follows that the trial court had no such right to do so, in a cause tried to a jury.

The very recent case of New St. Anthony Hotel Co. v. Pryor et al., Tex.Civ.App., 132 S.W.2d 620, in which a writ was refused, clearly states the rule respecting the disposition of a case before a jury, where the plaintiff’s testimony is conflicting. An issue is thus raised for the jury to determine. Many cases are cited.

We believe that the issue of “good cause” for not sooner giving notice and filing her claim is raised by the evidence and-that the trial court erred in instructing a verdict for the defendant.

Such cases as Petroleum Casualty Co. v. Dean, 132 Tex. 320, 122 S.W.2d 1053; Texas Employers Ins. Ass’n v. Roberts, 116 S.W.2d 417 (by our court, and in which a writ was granted but not on the issue here presented), and many cases cited in the opinion by Mr. Justice Speer; Traders & General Ins. Co. v. Jacques et al., Tex.Civ.App., 131 S.W.2d 133, writ dismissed — correct judment; Texas Employers Ins. Ass’n v. Little, Tex.Civ.App., 96 S.W.2d 677, writ dismissed. Many other cases could be cited, and many are cited in the opinions noted supra.

We believe that the instant suit, which is shown to have arisen over internal injuries-affecting the pr&creative organs of a young woman, about twenty years of age, unmarried and untutored in diseases peculiar to women, under the circumstances shown in this record, distinguishes her case from those relied upon by the appellee, viz; Fox v. Texas Employers’ Ins. Ass’n, Tex.Civ.App., 94 S.W.2d 569; Cunningham v. Fidelity & Casualty Co. of New York, Tex.Civ.App., 102 S.W.2d 1106, writ dismissed; General Accident Fire & Life Assur. Corp. v. Martin, Tex.Civ.App., 110 S.W.2d 258; Durham v. Texas Indemnity Ins. Co., Tex.Civ.App., 60 S.W.2d 255, writ dismissed; Petroleum Cas. Co. v. Fulton, Tex.Civ.App., 63 S.W.2d 1068; Maryland Cas. Co. v. Johnson, Tex.Civ.App., 87 S.W.2d 342, writ dismissed, and such similar cases.

There is yet another reason why we believe that the plaintiff below should not be barred on the theory that she did not give noticq of her injuries and assert her claim before the Industrial Accident Board, within the prescribed time, as shown by Section 4a of Article 8307 (Rev.Civil Statutes).

It appears that the plaintiff was a minor when she alleges she suffered the accident and was injured, and it further appears that she was a minor when her “notice” was given and her claim was filed with the Industrial Accident Board, and that she was a minor when she appealed from the ruling and judgment of such board; and at the time she filed her suit, it was brought by her next friend, viz: her father.

Article 8306, Section 13 (Rev.Civil Statutes) provides: “If an injured employé is mentally incompetent or is a minor or is under any other disqualifying cause at the time when any right or privileges accrue to him or exist under this law, his guardian or next friend may in his behalf claim and exercise stick rights and privileges except as otherwise herein provided. In case of partial incapacity or temporary total incapacity, payment of compensation may be made direct to the minor and his receipt taken therefor, if the authority to so pay and receipt therefor is first obtained from the board” (Italics ours.)

Our Supreme Court has established for us the rule to liberally construe these Workmen’s Compensation Statutes.

We find nothing in. the law that indicates an attempt upon the part of the Legislature to repeal any of the Statutes of Limitation found in Title 91, art. 5507 et seq., Vernon’s Annotated Civil Texas Statutes, insofar as they affect the rights of minors, and we do not hold that they are repealed by implication.

Under our Workmen’s Compensation Laws, the next friend or guardian of the minor employee, who is injured, may exercise these statutory rights of the infant, but we find nothing in the law requiring that this be done, within the period of time designated by the statute, and providing that the failure of the guardian or next friend to so do will bar the infant’s rights.

This question has not been before our Supreme Court, so far as our investigation of the authorities discloses, and the question is one of first impression, in Texas.

To our way of thinking, this minor, because of her minority, has shown good cause for not sooner attempting to obtain relief under the rights given her through the Workmen’s Compensation Laws.

The judgment is reversed and the cause is remanded.

On Motion for Rehearing.

Since we disposed of this case on its merits, counsel for appellant calls our attention to the case of Maryland Casualty Co. v. Landry, 129 S.W.2d 755, 758, in which a writ of error was dismissed because the judgment of the Court of Civil Appeals is correct.

In stating the case, the opinion observes that the employee was injured on October 13th, 1936, but did not file his claim until May 12th, 1937, and that the jury found that there was good cause for not sooner filing his claim.

This matter must have been presented to the Court of Civil Appeals as error requiring a reversal, since only three questions presented are discussed and the third was disposed of by the Court in the following language: “Appellee was a minor when he was injured, and did not attain his majority until several months after his claim was filed with the Industrial Accident Board. He had no legal guardian of his estate, and no one purported to act for him as ‘next friend.’ On these facts the minority of appellee, as a matter of law, constituted ‘good cause,’ as defined by Art. No. 8307, Sec. 4a, Revised Civil Statutes; on the issue of appellee’s minority see Art. No. 8306, Sec. 3.”

We do not know what facts were pleaded as showing “good cause”, other than the employee’s minority, but we find the Court of Civil Appeals disposing of the assignment of error solely on the fact of his minority.

The motion for rehearing is overruled.


author: DUNKLIN, Chief Justice.

text:
    NICHOLS et al. v. CANSLER et al.
    No. 14074.
    Court of Civil Appeals of Texas. Fort Worth.
    April 19, 1940.
    Rehearing Denied May 17, 1940.
    Cantey, Planger, McMahon, McKnight & Johnson and Carlisle Cravens, all of Fort Worth, for appellants.
    Sol Gordon and A. W. Christian, both of Fort Worth, for appellees Jake H. Tate and Bessie F. Tate.
    McLean & Scott and Glover Johnson, all of Fort Worth, for appellee Mrs. Bessie Gardner.
   DUNKLIN, Chief Justice.

On October 14, 1927, G. L. Nichols and C. Ray McKnight recovered a judgment in a Justice of the Peace Court of Tarrant County, against T. L. (Tom) Cansler and wife, Lucille Cansler, for the sum of $106.40, with interest thereon from the date of the judgment at the rate of six per cent per annum, and costs of suit, in the sum of $5.60.

On October 28, 1927, execution was duly issued on the judgment, on which due return was made by the constable and filed with the Justice of the Peace, reporting no property found for levy and no collection made. And no part of the judgment has ever been paid.

On October 31, 1927, an abstract of the judgment in due form was filed for record with the County Clerk of Tarrant County, where it was duly recorded and indexed, in accordance with statutory requirements .pertinent thereto.

On June 23, 1931, defendant, Mrs. Lucille Cansler, inherited two parcels or tracts of land in the town of Arlington, in Tar-rant County, hereinafter referred to.

On March 22, 1932, Mrs. Lucille Cansler, joined pro forma by her husband, Thomas L. Cansler, by warranty deed, conveyed one of the tracts she had inherited to Mrs. Bessie Gardner, for the recited consideration of $1,700, of which $600 was cash paid and the balance in two notes, secured by a vendor’s lien. That deed was duly acknowledged and recorded in the records of deeds of Tarrant County on March 25, 1932.

On October 28, 1933, Mrs. Lucille Cans-ler, who was then the lawful wife of S. W. Crutcher, executed a deed in her then married name of Lucille Crutcher, joined by S. W. Crutcher, conveying another parcel of her said inheritance to Jake H. Tate and wife, Bessie F. Tate, for a cash consideration paid of $1,000. That deed was also duly acknowledged and recorded in the deed records of Tarrant County, on November 9, 1933.

On October 26, 1937, this suit was instituted by G. L. Nichols and C. Ray Mcr Knight, plaintiffs in said judgment and owñers thereof, against the grantors and grantees, respectively, in those two deeds, to foreclose the judgment lien on those two tracts, created by the filing of said abstract of judgment under provisions of Arts. 5447 and 5448, Vernon’s Texas Civil Statutes, providing for the issuance and recordation of an abstract of judgment, and Art. 5449, which, prior to its amendment by the 44th Legislature in 1935 and 45th Legislature in 1937 (Vernon’s Ann.Civ.St. Art. 5449), read: “When any judgment has been so recorded and indexed, it shall from the date of such record and index operate as a lien upon all of the real estate of the defendant situated in the county where such record and index are made, and upon all real estate which the defendant may thereafter acquire situated in said county. Said lien shall continue for ten years from the date of such record and index; but if the plaintiff fails to have execution issued upon his judgment within twelve months after the rendition thereof, said lien shall cease to exist.”

Defendants filed pleas of the four year statute of limitation, Art. 5529, Vernon’s Texas Civil Statute, which reads: “Every action other than for the recovery of real estate, for which no limitation is otherwise prescribed, shall be brought within four years next after the right to bring the same shall have accrued and not afterward.”

The case was tried without a jury, and the findings and conclusions filed by the trial judge appear in the record. Those findings recite the facts set out above and the conclusion reached that the judgment lien attached to the property in controversy on June 23, 1931, when Mrs. Cansler inherited it; plaintiff’s right of action to sue for a foreclosure of the lien accrued at that time; that the four year statute of limitation, Art. 5529, pleaded by defendants, was controlling, in the absence of any other applicable limitation statute; that plaintiff’s suit was barred by that article of the statute, because it was filed more than four years after Mrs. Lucille Cansler acquired the property.

Plaintiffs have appealed, and the only error assigned here is to the ruling of the trial court that the suit was barred by the four year statute of limitation, Art. 5529. The point is ably briefed by counsel for the parties, all of whom say the exact question under like facts as here involved has never been determined by our Appellate Courts, and that this is a case of first impression.

In Edwards Mfg. Co. v. Southern Surety Co., Tex.Civ.App., 283 S.W. 624, several decisions are cited holding that the statute creating a cause of action for injuries resulting in death and limiting the time within which the suit must be instituted ; and the statute giving the right to establish a claim against the bank guaranty fund and fixing the time within which a claim therefor must be presented, were statutes of limitation. But those cases are distinguishable from the case at bar, because they were personal actions, showing rights of recovery on the facts relied on, and the right to plead limitation thereto could be waived by the defendants, while the instant suit was not a suit on a judgment but an action in rem to foreclose a statutory judgment lien on land already fixed in accordance with statutory requirements; and plaintiffs had the burden to show that the lien was still a subsisting lien. That point was definitely decided by our Supreme Court in Boyd v. Ghent, 95 Tex. 46, 64 S.W. 929, 930, which was a suit in trespass to try title, with an alternative prayer for foreclosure of a judgment lien on the land, and in the opinion of Chief Justice Gaines, this was said:

“One contention on the part of the defendant was that more than 10 years had elapsed since the filing of the abstract of the plaintiff’s judgment against Trigg before the trial of the cause, and before the filing of the petition asserting the lien, and that therefore the lien was lost. The court of civil appeals held that, for the reason that the defendant did not plead the statute of limitations, she could not assert this defense. We are not prepared to concur in this conclusion. The statute which gives the lien reads as follows:
“ When a lien had been acquired as provided in this chapter it shall continue for ten years from the date of such record and index, unless the plaintiff shall fail to have execution issued upon his judgment within twelve months after the rendition thereof, in which case said lien shall cease to exist.’ Rev.St. art. 3290.
“It seems to us that, since this article fixes the period during which the lien shall continue, a party who asserts it in an action must show that it has not ceased to exist at the time he brings his suit. Otherwise he shows no existing lien. It is not a statute which limits the period in which an action shall be brought, and therefore we are inclined to the opinion that it is not necessary for a defendant who resists such lien to plead the statute specially. But we think that it does not appear from the record in this case that the lien was lost. We do not know upon -what grounds the trial judge instructed a verdict in favor of the lien in this case. Where for any reason it becomes necessary for a party holding a lien acquired by filing an abstract of a judgment upon real estate to bring suit for its enforcement, we think he preserves his lien by filing his suit within the 10 years, and that the subsequent lapse of time before the trial will not defeat his action.”

Baker v. West, 120 Tex. 113, 36 S.W.2d 697, by Commission of Appeals, and Fikes v. Buckholts State Bank, Tex.Civ.App., 273 S.W. 957, were suits in trespass to try title, in which plaintiffs claimed title under foreclosures at execution sales on judgments that had been duly filed in the abstracts of judgments in counties where the lands were situated. And collateral attacks on those deeds, on the ground that those judgment liens could be foreclosed only by suits brought for that purpose, were overruled. But those decisions have no application here for two reasons; first, this suit was not a collateral attack on a deed to plaintiff, and second, because in those suits the issue of limitation was not involved.

Article 5449 does not purport to be a statute of limitation. It does not prescribe the time within which a suit for foreclosure of the lien must be instituted, nor the period within which a foreclosure must be decreed. • And to say that the lien could be terminated before the expiration of the ten year period given by that statute for its duration, because the suit was not sooner instituted, obviously would be to deny the force of the statute fixing the duration of the lien for a period of ten years.

Hence, we conclude that the court erred in sustaining. the plea of the four year limitation to plaintiff’s suit. Since plaintiff’s suit to foreclose the judgment lien in controversy was instituted while that lien was still in force, the judgment of the trial court is reversed and judgment is here rendered in favor of plaintiffs for foreclosure of the judgment liens prayed for on the two tracts in controversy. But that the tract acquired by defendants J. H. Tate and wife, Bessie Tate, on October 28, 1933, be first sold to satisfy the judgment recovered by plaintiffs in the Justice Court, Precinct 2, Tarrant County, on October 28, 1927, against T. L. (Tom) Cansler and wife, Mrs. Lucille Cansler, who later was known as Lucille Crutcher, by reason of her marriage to defendant S. W. Crutcher, and under which judgment the statutory lien was acquired. And that the tract acquired by defendant, Mrs. Bessie Gardner, on March 22, 1932, be sold in the event only the same be necessary to satisfy any balance that may be due on said personal judgment after sale of the tract later acquired by defendants J. H. Tate and wife, Bessie Tate, in accordance with the prayer of Mrs. Bessie Gardner for such inverse order of foreclosure, if foreclosure be decreed, under the doctrine of inverse order of alienation. Van Sickle v. Watson, 103 Tex. 37, 123 S.W. 112; Biswell v. Gladney, Tex.Com.App., 213 S.W. 256; Shelton v. O’Brien, Tex.Com.App., 285 S.W. 260.

And this judgment will be certified to the trial court for enforcement by proper process.

The pleas by some of the defendants over against their vendors for breach of warranties of title by such vendors will be remanded for trial of those issues, since such issues are wholly separate and sever-able from the cause of action asserted by plaintiffs for foreclosure of their judgment lien. But the trial of such pleas over shall not prejudice the right of plaintiffs in the suit below, appellants here, to enforce the foreclosure of their judgment liens as hereinabove decreed. 3 Tex.Jur., para. 813, p. 1154, and decisions there cited.

Reversed and rendered in part, and remanded in part.


author: SPEER, Justice.

text:
    RONSLEY et al. v. CITY OF FORT WORTH.
    No. 14026.
    Court of Civil Appeals of Texas. Fort Worth.
    April 12, 1940.
    Rehearing Denied May 17, 1940.
    H. S. Lattimore, of Fort Worth, for appellants.
    R. E. Rouer, Geo. C. Kemble, R. B. Young, Jr., Frank Crumley, and S. Lang-ford Carlton, all of Fort Worth, for ap-pellee.
   SPEER, Justice.

We previously rendered an opinion in this cause, in which we affirmed the judgment of the trial court in sustaining a motion for judgment notwithstanding the verdict. In support of our conclusions, we discussed, among other things, an ordinance by the City of Fort Worth, which prohibited swimming in Lake Worth at certain places designated therein. We stated that swimming in the lake where deceased was injured was prohibited by the ordinance. That statement by us has been challenged by plaintiffs in the motion for rehearing.

The record indisputably shows that deceased was injured when he dived into the lake waters at Stamp’s Park, located approximately three-quarters of a mile up-stream from the “Nine-mile Bridge”. The ordinance in question is shown to have been based upon findings of the City Council, among other things, that theretofore indiscriminate bathing and swimming had been practiced by the public in the lake waters up-stream from the Nine-mile Bridge, where no adequate life-saving guards or special police protection had been maintained; that such matters constituted a menace to public health, morals and to the lives of those so using said waters. That the City of Fort Worth had established what is known as the Municipal Bathing Beach just south of the Nine-mile Bridge, where all necessary equipment had been provided for the protection of the public, using it. The ordinance then prohibits the use of said lake waters for swimming purposes (except under certain named conditions) up-stream from said bridge “to a point running with and parallel to the north line of the J. Wilcox Survey, No. 34,- in Tarrant County, Texas, and extending from the west to the east. shore line of said reservoir or Lake Worth.”

We have again gone carefully through the narrative statement of facts before us, and find that it is well established by the testimony 'that Stamp’s Park is on the lake shore up-stream from the Nine-mile Bridge, but it is nowhere disclosed where the north line of the J. Wilcox Survey No. 34 is located. For the purposes under consideration, it is sufficient Jo say that the prohibited area was between the bridge, up-stream to the Wilcox line mentioned. We find no evidence in the record which places Stamp’s Park, where deceased was injured, between the bridge and the Wilcox Survey line. This being true, insofar as the record shows, we were in error when we stated in the original opinion that “swimming in the lake where deceased was injured, was prohibited by the ordinance.”

Some things we said in the original opinion were based upon this erroneous statement by us and we deem it advisable to withdraw that opinion and re-write our conclusions as expressed herein, extending to all parties the privilege of filing motions for rehearing, if they so desire, under the same conditions as if no other opinion had been written.

This suit was instituted by Mrs. Clarence O. Ronsley, in her own behalf and as next friend for her young child, against defendant, City of Fort Worth, seeking to recover $42,400, as damages for the death of Clarence O. Ronsley, the deceased husband and father of the respective plaintiffs. The parties will bear the same designation here as in the trial court.

Plaintiffs’ right of recovery was based upon acts of the defendant, alleged in the pleadings, to be negligence and the proximate cause of Mr. Ronsley’s death. The petition charges that twenty or more years ago the defendant acquired several thousand acres of land situated on both sides of the West Fork of the Trinity River, cut and removed the timber therefrom, leaving stumps and other foreign substances on the land; built a dam downstream and caused the area to be flooded, thereby creating a reservoir known as Lake Worth. That defendant owned a narrow strip of land around the lake adjacent to the water line; that for many years, including 1937, when the injuries complained of took place, defendant had rented its lands next to. the lake shore,, for camp sites and recreational purposes.’ That about seven years before Mr. Ron-sley was injured, the defendant had leased to one Stamps certain of its land adjacent to the lake shore, with the knowledge that it would be used for recreational purposes and the lake water would be used for swimming and bathing purposes; that during said time the land was improved by erecting bath houses to accommodate persons who desired to swim in the lake; that with said knowledge, the defendant renewed its annual lease contract with Stamps and his assignee during each of said years. It was alleged that on July 15th, 1937, Clarence O. Ronsley, accompanied by his wife and a few friends, went to Stamp’s Park, rented bathing suits and paid for checking their clothes during the time they expected to be in the water, in anticipation of swimming in the lake waters adjacent to the camp or park site. That Mr. Ronsley dived into the water and struck his head against a stump or some other foreign object just beneath the surface of the water, with the result that his neck was broken, from which his death ensued.

The alleged acts of negligence by defendant upon which recovery was sought were, leasing by defendant to Stamps and his assignee the premises for a bathing beach; allowing the lessees to use the premises as a bathing beach; in permitting stumps and other foreign objects to remain in the water beneath its surface at that place, where it was being used for bathing and swimming purposes, and for not placing signs or markers at such dangerous places, to warn the public of such latent dangers, while using the waters for bathing purposes. It was alleged that these acts were negligence and proximately caused the injuries to Mr. Ronsley, and the consequent damages sought by plaintiffs.

Aside from the general denial, defendant answered with special pleas denying that it ever leased the premises to Stamps or renewed such lease with his assignees, to be used as a bathing beach and denied that it was negligent in not forbidding the use of said premises for bathing purposes. It specially denied that deceased met his death by striking his head against a stump or other foreign object at the time and place complained of by plaintiffs, alleging that there were no stumps or foreign objects in the water at the time and place which could not be seen from the shore. Defendant further answered that Clarence O. Ronsley was injured as a proximate result of his own negligence; that at the time and place where he was injured there were numerous women and children standing and wading in the waters in that immediate vicinity from which any one could observe that the water was shallow, but that without keeping a proper lookout for his own safety, Ronsley dived into the water at a place where it was only a few inches deep and thereby received his injuries; that if he had exercised any degree of care for his own’ safety, he would have observed from persons in the water that it was dangerous to attempt to dive therein from shore, as was done by him, and that his own negligence was the proximate cause of the injuries sustained.

As a further defense, the defendant plead the existence of an ordinance passed by the City Council, which is the document hereinabove referred to in this opinion. The defendant sought to establish contributory negligence on the part of C. O. Ronsley, proximately causing his death, on account of his acts being' in violation of the ordinance, but, as above stated, since it was not shown by the evidence that Stamp’s Park was within the area described in the - ordinance, a discussion of the ordinance and its effect is not required of us.

After the evidence Was all in and before the charge of the court was presented to the jury, defendant moved for an instructed verdict; this was denied by the court.

In response to special issues submitted, the verdict was, in effect, (1) there .was a submerged stump at the point where Ronsley was killed; (2) The submerged stump created a dangerous condition to bathers; (3) the dangerous condition there was known, or by the use of reasonable diligence should have been known, to the authorities of the City of Fort Worth; (4) Ronsley’s death was caused by his head striking a submerged stump; (5) Ronsley was not guilty of negligence in diving into the water at the time, place and manner that he did dive into it; and (6) Ronsley was not guilty of negligence in failing to ascertain, just prior to the time he dived into the water, whether or not it was sufficiently deep to permit diving.

After the verdict was returned, defendant timely filed its motion for judgment non obstante veredicto. No complaint is made of the sufficiency of the motion, the notice or the form of the judgment rendered thereon. They meet the requisites of procedure laid down by the Supreme Court in Hines v. Parks, 128 Tex. 289, 96 S.W.2d 970. The motion was sustained' by the court, and judgment was entered accordingly. Motion for new trial being overruled, plaintiffs have perfected this appeal.

The sixteen assignments of error urged by plaintiffs present as many alleged reasons why the court committed reversible error in sustaining the motion for judgment notwithstanding the verdict.

Article 2211, R.C.S. Vernon's Ann.Civ.St. art. 2211, provides: “The judgments of the Court shall conform to the pleadings, the nature of the case proved and the verdict, if any, and shall be so framed as to give the party all the relief to which he may be entitled either in law or equity. Provided, that upon motion and reasonable notice the Court may render judgment non obstante veredicto if a directed verdict would have been proper, and provided further that the court may, upon like motion and notice, disregard any Special Issue Jury Finding that has no support in the evidence. * * *”

The evidence shows that the reservoir is the property of defendant and is within its corporate limits; that defendant had prepared a place on the lake for public swimming purposes, known as Municipal Beach, which was adequately provided with life-guards, life saving devices, police protection and equipment for sanitary purposes; that defendant had leased its strip of land around the lake, in small areas, to individuals for camp sites and recreational purposes, over a period of several years; that the place known as Stamp’s Park consisted in part of an area about fifty * feet wide and extended from the water’s edge out to defendant’s property line, and had been leased each year by the defendant under a written contract. Among other provisions in the lease contract made in 1930, and renewed each year up to and including the date of the accident, it recited that, “No bathing in Lake Worth shall be permitted or allowed under this contract, except at Bathing Beach.” There was evidence showing that at all times during the life of those several renewals of the contract, the lake waters adjacent to the premises were used in season, by patrons of the lessee for bathing purposes, and that the Lake Police Patrols, employees of the defendant, knew of such uses. The foregoing may be said to be the uncontroverted facts established. The testimony concerning other matters determined by the verdict is highly conflicting. Such as, that Ronsley hit a stump when he dived into the water; he was fully conscious when taken out of the water and said that he hit something, which he thought was a stump; he likewise said within the next few minutes 'that he did not strike a stump, but his wife testified the latter statement was made by him because she. was crying. Mrs. Ronsley said he had a large knot on his head the next day after the accident; Mr. Eddleman, who waded out in the water about knee deep and picked up Ronsley, said he struck something with his foot and later touched it with his elbow when he picked up the injured man; he took the object to be a submerged stump. The witness Walker, lessee of the premises, said when he arrived they had removed Ronsley from the water and had him on a table; that Ronsley told him he did not hit a stump but hit the ground; that Ronsley had sand on his head; witness had frequently examined the water and Lake bottom at the place where deceased dived in and said there was no stump anywhere near the place; that he examined it both before- and after the accident. Mrs. Crow testified that she was present when they took Ronsley out of the water; he had sand on his head and face; there were no cuts or bruises on his head; she had been in the water frequently where Ronsley was injured, both before' and since, and that there was no stump or root on the bottom there at that time. Mrs. Harris’ testimony was to the same effect. As bearing on the issues of whether or not Mr. Ronsley was guilty of negligence proximately causing his injuries at the time and place when he dived into the water, in which answers the jury acquitted him of negligence, the evidence shows that it was about 7:30 o’clock P. M. but the lights were on over the water; he had never visited the place before; the depth of the water ranged from six inches at the edge and grew gradually deeper further out; he dived from a board on the root of a tree and his head struck the water perhaps fifteen feet from the water line; the water was about knee deep to the man five feet nine inches tall, at the point where the injured man’s head was; several women and children were wading farther, out than where his head struck; the water came above the knees of those that were in the water; there was a dock or board walk about fifty feet south of where the accident happened, extending out some distance; there was a board platform out in the water from where Ronsley dived in, located about the same distance from shore as the end of the board walk to the south.

We find it is unnecessary for us to determine if there was more than a scintilla of evidence to support the verdict which acquitted the injured man of negligence, or whether he was guilty of negligence as a matter of law proximately causing his injuries, under all the facts and circumstances. However, if the trial court, by entering judgment for defendant, thereby found that there was no support in the evidence for the verdict on these points, under Article 2211, supra, he had a right to disregard those jury findings. The motion of defendant for judgment non ob-stante veredicto raised the question.

Among the various points presented in the motion by defendant, paragraph number six reads: “There is no causation in the case, in that the injuries complained about did not result from any act flowing in a natural and continuous sequence to the event that occurred.” Paragraph seven reads: “The accident was not foreseeable, in that the defendant was not maintaining or operating a bathing beach at the point or in the vicinity of the point where Clarence O. Ronsley was injured and it was guilty of no act of omission or commission that in any way resulted in his injuries, and it could not have reasonably. foreseen or anticipated that Clarence O. Ronsley or any one else would have been injured in the manner in which he was injured.” Paragraph ten reads: “The record conclusively shows as a matter of law that the injuries suffered by Clarence O. Ronsley were the result of his own contributory negligence, in that he ran down the bank of the lake and dived in without making any investigation as to the depth of the water or any facts as to the nature of the place where he was diving and his neck was broken, consequently bringing about his death.”

We cannot know from the record before us whether or not the trial court found that there was no evidence to support that part of the verdict, and therefore disregarded it. It is unnecessary for us to pass upon that phase of the case, and for that reason we express no opinion on it.

Before plaintiffs could recover in this case, it was necessary for them to prove by competent evidence that some alleged act or acts of defendant constituted negligence, as that term was defined by the court in his charge, and that such negligence proximately caused the injury. Such facts may be shown by circumstances disclosed by the evidence. In such cases as this, whether or not the proven acts or omissions of a defendant constitute negligence and proximate cause, are fact questions and when a jury is demanded, as in this case, the issue becomes one for its determination. It was not only plaintiffs’ burden to establish acts of defendant, either of commission or omission, but that they constituted negligence and proximate cause, before they could recover. The fact of causal connection between an alleged negligent act and an injury can no more be presumed than the act or omission itself. Texas & N. O. R. Co. v. Zarate, Tex.Civ.App., 74 S.W.2d 721, writ refused; Texas & P. Ry. Co. v. Shoemaker, 98 Tex. 451, 84 S.W. 1049; Houston E. & W. T. Ry. Co. v. McHowell, Tex.Civ.App., 278 S.W. 258, writ dismissed.

In negligence cases there is no difference in the application of the rule of proximate cause to the negligent acts of defendant and those of the plaintiff. Dallas Ry Co. v. Eaton, Tex.Civ.App., 222 S.W. 318, writ dismissed.

In Waterman Lumber Co. v. Beatty, 110 Tex. 225, 218 S.W. 363, 364, court held: “There is no doubt that it is essential to the maintenance of an action for damages for a personal injury, founded on the violation of a statute, to establish, not only a violation of the statute, but that the violation was the proximate cause of the injury. Though the violation of the statute would be negligence per se, the action would fail without a showing of proper causal connection between the negligence and the injury.” The above rule was followed in an opinion by the Commission of Appeals, in St. Louis B. & M. Ry. Co. v. Price, 269 S.W. 422, at page 428, adopted by the Supreme Court.

The verdict of the jury which finds that there was a submerged stump where Ronsley was injured, that it created a dangerous condition for bathers, that the defendant knew, or by reasonable diligence should have known it, and that Ronsley was injured by striking his head against a stump, does not establish negligence by defendant as a matter of law, nor that if such acts and omissions did constitute negligence, that they were the proximate cause of the injuries sustained.

Recovery by plaintiffs in this case could only be sustained by a favorable verdict on the ultimate and controlling issue in their alleged cause of action. That complete ultimate issue was' made up of four component or subsidiary issues, they being, (1) the fact of the alleged wrongful acts of defendant, (2) whether they be negligence, (3) whether such negligence be the proximate cause of the injury, and (4) the amount of damages. When, as in this case, one or more of those component elements of the ultimate issue is submitted and answered, and others are not submitted or requested to be submitted, those subsidiary or component elements of the ultimate issue not submitted or requested to be submitted are not waived, and the court may find, and is deemed to have found, them, under Article 2190, R.C.S. Vernon’s Ann.Civ.St. art. 2190, in such way as to support the judgment rendered by him. North v. Atlas Brick Co., Tex.Com.App., 13 S.W.2d 59, approved by the Supreme Court. The latest expression of the Supreme Court on this subject is Wichita Falls & O. Ry. Co. v. Pepper, 135 S.W.2d 79. In that opinion the North v. Atlas Brick Co. case, supra, is again cited with approval. Bearing directly on the point also are the cases of Ormsby v. Ratcliffe, 117 Tex. 242, 1 S.W.2d 1084, and Colbert v. Dallas Joint Stock Land Bank, 129 Tex. 235, 102 S.W.2d 1031.

The court submitted in this case certain elements, of plaintiffs’ ultimate issue upon which they sought a recovery: i. e., whether or not defendants did the acts complained of in the petition and the amount plaintiffs were entitled to recover; omitting the other component elements of the issue of whether the acts found by the verdict constituted negligence and proximately caused the injuries. No request by plaintiffs was made for the submission of those issues and no complaint is made here by them because they were not submitted. The failure of the court to submit those issues cannot be imputed to defendant. Kirby Lumber Co. v. Conn, 114 Tex. 104, 263 S.W. 902; Wichita F. & O. Ry. Co. v. Pepper, supra.

For reasons best known to the trial court for not having submitted those elements of the ultimate issue, and to plaintiffs for not having requested their submission, they were omitted. No recovery could be had by plaintiffs unless the acts shown constituted negligence and proximate cause as a matter of law, or if not, then a finding of fact thereon by the jury. We have concluded, as above indicated, that negligence and proximate cause were not shown as a matter of law. The court entered judgment for defendant, and under the authorities above cited, he is deemed to have found those essential and component elements of the ultimate issue in such a way as to support the judgment entered.

For the reasons stated and under the authorities cited, we conclude and so hold that no error is shown to have been committed by the court in the matters discussed, and that the judgment should be affirmed. It is so ordered.