author: LOONEY, Justice.

text:
    YOUNG v. DALLAS RY. & TERMINAL CO.
    No. 12819.
    Court of Civil Appeals of Texas. Dallas.
    Jan. 20, 1940.
    Rehearing Denied Feb. 17, 1940.

      Malone, Lipscomb, White & Seay, of Dallas, for appellant.
    Burford, Ryburn, Hincks & Charlton and Logan Ford, all of Dallas, for appel-lee.
   LOONEY, Justice.

Gertrude C. Young appealed from an adverse judgment rendered in her suit against the appellee, Dallas Railway & Terminal Company, to recover damages for personal injuries sustained when struck by the rear end (overhang) of one of appellee’s street cars as it rounded the curve off of Elm Street onto St. Paul Street in the City of Dallas. It seems that appellant, boarded the car at Elm and Akard Streets and proceeded east on Elm three blocks to St. Paul, where she alighted from the front end of the car onto, and was standing within, the safety zone (established by the City of Dallas, adjacent to the street car track on the south), waiting for traffic to clear between the safety zone and the south curb on Elm Street, when struck by the overhang of the car, receiving the injuries of which she complained.

Appellant alleged that appellee was guilty of various acts of negligence, invoking, among others, the doctrine of discovered peril. Appellee’s answer was a general denial and pleas of contributory negligence. The jury found appellee guilty of actionable negligence in two respects, as follows: (1) That the operator of the car turned same from Elm onto St. Paul Street before appellant could safely leave the safety zone because of the automobile traffic passing between her and the south curb of Elm Street; and (2), that appellant was not afforded a reasonable opportunity to get beyond the point of danger from the movement of the car. The jury also found that appellant was ’ guilty of contributory negligence, as follows: (1) That she failed to keep a proper lookout for the overhang of the street car as it rounded the curve from Elm onto St. Paul Street, and (2), in assuming a position so near the rail (of the track) that she was struck by the overhang of the car as it rounded the curve. On the issue of discovered peril, the jury found that, while the operator of appellee’s car discovered appellant’s perilous position in time to have avoided the injuries by the exercise of ordinary care in the use of all the means at his command, consistent with the safety of the car, its occupants and himself, yet finding that the operator of the car did not fail to exercise ordinary care in the premises, made no finding on proximate cause as it pertained to that issue.

Appellant filed a motion for judgment non obstante veredicto; appellee also filed a motion for judgment, on the verdict of the jury, and, in the alternative, non ob-stante veredicto. Appellant’s motion was overruled, and that of appellee for judgment on the verdict was sustained, and accordingly, judgment was rendered that appellant take nothing, from which she duly perfected this appeal.

Counsel for the parties have filed able and exhaustive briefs, for which we express appreciation. Appellant urges 21 propositions, based upon 26 assignments, and appellee urges 19 counter-propositions, besides 14 cross-assignments urged as propositions. The several questions raised are thoroughly and adequately briefed, but, as we have reached the conclusion, after a thorough consideration of the cause, that the 'court below should have instructed a verdict for appellee, we dp not deem it necessary to discuss but two questions as a vindication of the conclusion reached; that is, (1) Was appellant guilty of contributory negligence as a matter of law?; and (2), was the evidence sufficient to raise the issue of discovered peril? We think it obvious that appellant was guilty of contributory negligence as a matter of law, and that the evidence was not sufficient to raise the issue of discovered peril, hence the other questions raised become immaterial and need not be discussed.

The material facts bearing upon the question of contributory negligence are these: The City of Dallas established a safety zone adjacent to and' south of the railway track at the intersection in question. The zone is 72 feet in length, 8 feet and 3 inches in width, is marked by mushroom-shaped metal buttons or discs, 19 in number, 12 inches in diameter, placed 4 feet apart and raised sufficiently above the surface to prevent automobiles from invading the zone. The zone had a clearance of at least 3 feet between the outer edge of the overhang and the south line of the safety zone, at. the point of the greatest overhang of the car as it curved to the left from Elm onto St. Paul. Appellee company had also installed within the safety zone, metal buttons 3½ inches in diameter, level with the surface of the street, to indicate the limit or outward sweep of the overhang of its largest cars.

Appellant testified, in substance, that she had been riding street cars in Dallas for thirty years; that, on many occasions during the last five or six years, she had ridden cars past the Elm and St. Paul Street corner, and had watched the car take the left turn; was familiar with the overhang of the car, and, a number of times, had alighted from the car as she did on the occasion in question, and stood in the safety zone as the car turned from Elm onto St. Paul, but had never received injuries before; did not know what struck her until told after-wards; that she made no effort to observe the overhang of the car on the occasion, although was aware, in a general way, of the movement of the car; also knew of the existence of the buttons indicating the sweep of the overhang as it turned the curve, but did not observe the buttons on the occasion in question, nor did she look io the rear of the car, or make any effort to observe the overhang; testified that she alighted from the car and took two or three steps away from it; was in the safety zone 25 or 30 seconds before being struck; that two other passengers alighted at the same time — a man and a woman; the man took two or three steps down by the side of the car, the woman stood close, to appellant in the safety zone, but neither of the other parties was injured.

The material portions of appellant’s testimony will doubtless be best understood as she gave it in “Q. & A.” form, as follows :

“Q. Now, when you got off of the car did you get both of your feet off the street car, Miss Young? A. Yes.
“Q. Did you get them both safely on the ground? A. Yes. * * *
“Q. Are you able at this time, Miss Young, to tell the jury how many steps you took before you were struck after you reached the pavement ? A. I am not positive ; two or three. * * *
“Q. And, did I understand you to say on direct examination this morning, that you took two or three steps, or did — was I mistaken about that? A. Two or three.
“Q. Two or three steps from the street car ? I didn’t hear your last statement. A. Yes. * * *
“Q. Now, while you were waiting this period in the safety zone there, did you turn around and look back towards the street car at any time? A. Not that I recall.
“Q. You don’t recall ever having done that? A. No.
“Q. Do you recall turning to the — to your side and looking at the rear end, the furtherest extremity of the street car at any time during that twenty to twenty-six seconds you were there? A. No, I don’t. * * *
“Q. Did you at any time see the street car — the rear end of the street car before you were struck by it ? A. No. * * *
“Q. Now, have you ever seen a street car make a left hand turn, and watch the overhang of it as it comes around? A. Yes, I have watched them. I have seen it.
“Q. What is that? A. I say, yes, I have seen it.
“Q. Have you seen that happen? A. Yes.
“Q. Did you — have you ever noticed a street car, which made. a left hand turn, whether or not the overhang did not extend out beyond the track further than it did when it went straight ? A. Yes.
“Q. You have seen it when it did not do that? A. No, not when it didn’t. It usually does.
“Q. You know that to be a fact, do you, Miss Young? A. Yes. * * *
“Q. Just tell the jury, if you will, please, how much you have observed the operation of a street car, as respects the car turning to the left, and the overhang extending out beyond the track. A. As much as any street car passenger in that length of time that that comes under your observation. You don’t make any special study of it.
“Q. But, you were familiar with that fact, and knew about it. Is that correct, Miss Young? A. Yes. * * *
“Q. Miss Young, did you realize and know then that street cars do turn to the left off of Elm onto St. Paul around the Athletic Club Building there? A. Yes.
“Q. How long have you known that cars turned to the left off of Elm onto St. Paul ? How long have you known of existence of that fact; that that is a course some of the cars do take? A. I don’t know exactly how long; for some time.
“Q. Would you give — had you known it for some time before this accident took place? A. Yes. * * *
“Q. Did you ever get on the street car at St. Paul and Elm, and have it turn to the left off of Elm onto St. Paul? A. The Oak Lawn car.
“Q. The Oak Lawn car? A. Yes.
“Q. You have done that, have you? A. Yes.
“Q. For what period of time have you done that? A. During the time I lived in Oak Lawn. * * *
“(Re-Direct) Q. Miss Young, he was asking you about your previous experience with street cars. Had you ever, prior to June 26th, 1937, got off of a street car of the size and dimensions of this street car, into a safety zone, with the traffic signals green and a string of traffic going by, and attempted to stand in the zone while the car .made a left turn onto St. Paul Street, or any other street off of the street you were on? A. I very probably have. I think 1 have.
“Q. Do you know whether you ever had that experience■ before, or not? A. Yes, I have.
“Q. Piad you ever done so on this particular corner? A. I have been on that corner so often. I think I have. * * *
“(On Re-cross Examination) Q. But, you have stood in that safety zone, and got off a number of cars there a number of times? A. Yes.
“Q. On these other occasions you were never struck by the overhang, were you? A. No, sir.
“Q. This is the first time you have ever been struck by the overhang ? A. Yes.”

The evidence shows that, there existed in the safety zone, a space 3 feet in width, over which the overhang of the car did not extend in making the curve off of Elm onto St. Paul Street. The traffic officer of the city, who served at that corner, testified that he had often stood in the safety zone there and had never been struck by the overhang of the car, and that persons waiting for -an opening in the traffic in order to cross the street, customarily stood there as cars rounded the curve. After alighting from the car and ceasing to be a passenger, appellant was absolute master of her own conduct. She could have stood in a place of absolute safety, as she had done on previous occasions, as her fellow passengers did on the occasion in question, as often had been done before by the traffic officer and others. Her admissions show that she exercised no foresight, and seems to have been wholly disregardful of her own safety. The fact that appellant was struck by the overhang shows, inescapably, that she negligently walked and stood in a position of danger, that subjected her to the injuries received. We are of opinion, therefore, that she, alone, was responsible for the accident, hence guilty of contributory negligence, as a matter of law.

In the case of Townsend v. Houston Electric Co., Tex.Civ.App., 154 S.W. 629, writ refused, the El Paso Court held (quoting from syllabi) that: “Where plaintiff, about to board a street car, got too close to the track, and was struck by the overhang of the fender as the car was rounding the curve, he was negligent, as a matter of law, and therefore could not recover for negligence of the motorman in failing to keep a proper lookout.” Citing the Townsend case, and others from the states of California, Iowa, Kansas, Kentucky, Missouri, New Jersey, New York, Rhode Island and Washington, the doctrine is announced in 55 A.L.R. 487, that: “It is generally held that one who stands near enough to a car track to be struck by the overhang of the car as it rounds a curve is guilty of contributory negligence.”

The t material facts bearing on the issue of discovered peril are these: The operator of the car testified, in substance, that he did' not realize appellant was in a perilous position and, under the circumstances, would have thought such an injury impossible; that when he saw her last, before the injury, she was in the act of walking away from the car, toward the south curb of Elm Street, saw her no more, as his attention was directed to the westbound traffic approaching on his left as he made the turn from Elm onto St. Paul. The operator was not contradicted by any witness, but, in a sense, was corroborated by appellant who also testified that, after leaving the car, she took two or three steps in the direction of the south curb on Elm Street and did not turn, or look back.

It is well settled that the doctrine of discovered peril is not applicable in the absence of a showing of actual knowledge, on the part of the person causing injury, of the peril of the party injured, and such knowledge or realization being absent in the instant case, it is our opinion that the issue of discovered peril was not raised by the evidence. See Texas & P. Ry. Co. v. Breadow, 90 Tex. 26, 36 S.W. 410; Fort Worth & D. C. Ry. Co. v. Shetter, 94 Tex. 196, 59 S.W. 533; San Antonio & A. P. Ry. Co. v. McMillan, 100 Tex. 562, 102 S. W. 103.

Appellant insists, however, that a person is in a perilous position when pursuing a course reasonably indicating that serious injury will result. The effect of the testimony of the operator is that, when he last saw appellant, she was walking away from the car, her back turned, and that, after the stop for 20 to 30 seconds, he started the car around the curve, had no knowledge whatever that appellant was in a perilous position, or that she had been injured, until informed by a passenger about a block away from the place of the accident. As appellant was not in a perilous position when last seen, and nothing reasonably indicating that she would be injured by the’overhang of the .car, the operator was not required to anticipate that she would negligently place herself in a position of peril.

In Fort Worth & D. C. Ry. Co. v. Shetter, 94 Tex. 196, 59 S.W. 533, considering a similar situation, the Supreme Court held that, there must be evidence to show knowledge by the person causing the injury of the perilous position of the person injured (not mere lack of care to discover it), in order to justify the submission of the issue of discovered peril as a ground for recovery; and further, that the person causing the injury is not bound to anticipate negligent conduct on the -part of the person injured. The same doctrine is announced by the Supreme Court in Houston & T. C. Ry. Co. v. O’Donnell, 99 Tex. 636, 641, 92 S.W. 409, and in Jewell v. El Paso Electric Co., Tex.Civ.App., 47 S.W.2d 328, 330, with full citation of authorities.

However, appellant contends that, the jury could properly have disregarded the testimony of the operator of the car and found, notwithstanding his testimony to the contrary, that, in fact, he did know of appellant’s perilous position at the time the car curved from Elm to St. Paul Street. The fault with this contention is that there is nothing in the evidence that reflects upon the operator, or that disparges the truth of his testimony. The record, in our opinion, is barren of any evidence authorizing the submission of the issue, or that would have justified a finding by the jury in opposition to the testimony of the operator of the car. See Fort Worth & D. C. Ry. Co. v. Shetter, 94 Tex. 196, 199, 59 S.W. 533, 535; Cobb v. Texas & N. O. R. Co., Tex.Civ.App., 107 S.W.2d 670, 674; Smithee v. Texas & P. Ry. Co., Tex.Civ.App., 89 S.W.2d 461, 464; Great Southern Life Ins. Co. v. Dorough, Tex.Civ.App., 100 S.W.2d 772, 776.

So we conclude that appellant was guilty of contributory negligence, as a matter of law, and further, that the issue of discovered peril was not raised by the evidence. If correct in these conclusions, all other assignments, propositions, cross-assignments and counter-propositions become immaterial, and need not be considered. We conclude, therefore, that the judgment of the trial court was correct, should be affirmed, and it is so ordered.

Affirmed.

On Motion for Rehearing.

Appellant has filed a lengthy motion for rehearing, challenging the correctness of our conclusions as to law, also, at least in one respect, challenges the correctness of a conclusion of fact, contending that it is in conflict with the undisputed facts as disclosed by the record.

Among other conclusions of fact, we made the following: “The City of Dallas established a safety zone adjacent to and south of the railway track at the intersection in question. The zone is 72 feet in length, 8 feet and 3 inches in width, is marked by mushroom-shaped metal buttons or discs, 19 in number, 12 inches in diameter, placed 4 feet apart and raised sufficiently above the surface to prevent automobiles from invading the zone. The zone had a clearance of at least 3 feet between the outer edge of the overhang and the south line of the safety zone, at the point of the greatest overhang of the car as it curved to the left from Elm onto St. Paul.” Appellant contends that our conclusion that, “The zone had a clearance of at least 3 feet between the outer edge of the overhang and the south line of the safety zone, at the point of the greatest overhang of the car as- it curved to the left from Elm onto St. Paul”, is in conflict with the undisputed facts, contending that, “Instead of having ‘at least 3 feet’, as observed by this Court, it appears conclusively that so far as the safety of a person attempting to stand in this zone is concerned, instead of having at least 3 feet, as observed by this Court in its opinion, such person in reality had only 2 feet and 2 inches”.

We see no occasion for a misunderstanding in regard to the fact under consideration. Instead of saying that the zone had a clearance of at least 3 feet between the outer edge of the overhang and the south line of the safety zone at the point of the greatest overhang of the car as it curved, we could ,have said with absolute accuracy that it had a clearance of at least 3 feet, 2 inches. As will be observed from our conclusions, there were 19 metal discs, 12 inches in diameter, placed 4 feet apart, that described the safety zone, and at the particular place involved, if one stood against the inner rim of one of these discs, the clearance would have been reduced by 12 inches and, as stated by counsel for appellant, the clearance would have been 2 feet and 2 inches; but, at all other places' in the zone, between these metal discs, the clearance was 3 feet, 2 inches. However, even if the clearance were only 2 feet, 2 inches, as contended by appellant, we see no' reason why any person, regardful of his or her safety, could not have stood in a place of safety.

After considering all grounds urged for rehearing, appellant’s motion is overruled.


source: Caselaw Access Project

author: YOUNG, Justice.

license: Public Domain

text:
    PEARSON v. HOLLAND et al.
    No. 12820.
    Court of Civil Appeals of Texas. Dallas.
    Jan. 13, 1940.
    Rehearing Denied Feb. 24, 1940.

      John W. Pope, Sr., and Robert M. Vaughan, both, of Dallas, for appellant.
    Malone, Lipscomb, White & Seay, S. P. Sadler, and Touchstone, Wight, Gormley, Strasburger & Price, all - of Dallas, for appellee.
   YOUNG, Justice.

Appellant’s first amended original petition in the lower court complained of parties who had theretofore been interested in the consolidated estates in probate of Laura B. Pearson and William Festus Pearson. Upon a hearing of certain pleas in abatement and to the jurisdiction, urged by all defendants, same were sustained and the cause dismissed, with the consequence of this appeal. Referring to the litigants as on the trial, plaintiff (appellant here) had been' administrator of the above estates, resigning about'November 15, 1935, and being succeeded by Robert B. Holland as temporary administrator, who continued to act until closing of the estates in December, 1936. The properties of plaintiff’s parents were involved in the previous probate proceedings. By original petition dated March 16, 1938, plaintiff filed suit in the district court against his three sisters, Mrs. Lora Pearson Brannon, Mrs. Maudelle Pearson Combs and Mrs. Ailene Pearson Williams, who, together with Leonard L. Pearson and plaintiff, were sole heirs of said parents; S. P. Sadler and Mr. Holland, as. temporary administrator, being also joined individually and as attorneys in fact. In this petition, plaintiff sought to cancel and set aside, on grounds of fraud, a deed executed by him September 17, 1936, conveying his one-fifth interest in the estate to his brother and sisters; claiming said instrument to have been given as security, only, for certain disproportionate advances to himself while administrator, and was not a positive conveyance; that in the estate’s administration, following his resignation, the other heirs had drawn moneys and properties in excess of the amounts drawn by plaintiff, as shown by the records of the estate, whereby he was entitled to repossession of his one-fifth interest and all proceeds thereof. On June 20, 1938, plaintiff filed in the same cause amended pleadings, endorsed: “Pltf’s 1st Amended Orig. Pet. In Addition to Orig. Relief Sought Writ of Certiorari to County Court of Dallas Co., Tex. sitting in probate is prayed for.” In this amendment, Leonard L. Pearson, brother, and the American Surety Company, surety on plaintiff’s bond as administrator, were included as defendants. The introductory allegations of the amendment were: “That, as grounds for granting the writ of certiorari sought by this petition and awarding to plaintiff the relief thereby sought, plaintiff respectfully represents to the court * * * ”; closing with the prayer: “* * * that said cause be tried de novo, as to and on the grounds of error, specified in this application and/or petition for writ of certiorari, and that your petitioner have judgment establishing his right to share in the partition and distribution of the properties hereinabove described, heretofore attempted to be partitioned, and that his rights as an heir thereto to an undivided one-fifth interest of such properties be,.in all things, recognized and established as a just and legal claim, right and title thereto; * * * Said amended petition again alleged fraud in the procurement by plaintiff’s co-heirs of the deed dated September 17, 1936, conveying to them plaintiff’s one-fifth interest, alleging same to be merely a mortgage, which had been discharged by repayment to said heirs of all previous over-payments and advances to such plaintiff; the effect of the specifications of error in the amendment being that the agreement for partition, limiting the distribution of the estate to plaintiff’s brother and sisters, based on said deed, was void; and the court’s order thereon, to-gather with the order of final partition closing the estate, likewise void, because the aforesaid deed was recognized as a conveyance and not a mortgage, the probate court being without jurisdiction to construe the validity thereof.

Upon presentation, said petition for certiorari was granted by the district court, bond furnished, and a transcript of the probate proceedings relating to the Pears.on Estate was in evidence on the trial de novo. Art. 939, R.S. A judgment after hearing appears in said transcript, of date June 5, 1936, involving the final audit of plaintiff’s tenure as administrator; his bondsmen, American Surety Company, appearing by counsel, but plaintiff, though served with notice, failing to appear. It was found that plaintiff was indebted to the estate in the sum of $21,014.02, judgment being so rendered against both principal and surety on the administrator’s bond. The Surety Company alone excepted to this order establishing liability. On June 9, 1936, the probate minutes disclose the approval of a compromise judgment whereby said Surety was discharged from liability on said bond, by payment of $13,000 to the estate. Plaintiff made no further appearance in the probate transactions and hearings, leading up to and including the closing thereof on December 15, 1936. The district court did not obtain jurisdiction to revise and correct the above judgment against plaintiff and in favor of the estate, as his suit in certiorari was filed more than two years after such proceedings were had. Art. 932; Wade v. Scott, Tex.Civ.App., 145 S.W. 675. Indeed, plaintiff does not seek to review the finding of June 5, 1936, that $21,014.02 had been theretofore improperly received by him, his specifications of error being, in effect, that on the date of the partition agreement between the other heirs (November 17, 1936) and of the formal order closing the estate (December 1'5, 1936), “there had been repaid by your petitioner out of his part of monies of said estate, all of the money he had so advanced himself; and thereby the indebtedness for which said deed of trust had been executed to secure, had been fully paid off and discharged * * * That Mr. Holland, in his final report, had completely and accurately accounted for the assets of the estate during his administration as plaintiff’s successor, does not seem to be questioned in said specifications. Plaintiff’s principal grievance consists in his exclusion as a distributee "perforce of the deed of conveyance; contending that upon a review of such probate orders, said instrument should be declared a mortgage, and the antecedent debt be declared fully paid on re-statement of acounts. It is clear to us that plaintiff’s petition in certiorari and specifications therein are not cognizable in the district court, functioning in its appellate capacity. Plaintiff seeks thereby to litigate the validity of his said deed; that is to say, the title to realty. This, the district court has no jurisdiction to do in a petition for certiorari from the probate court, the latter court, as such, not having the necessary jurisdiction. Miers v. Betterton, 18 Tex.Civ.App. 430, 45 S.W. 430. The writ “cannot be properly employed to correct errors in deeds of guardians or administrators, but only errors of the county court. The district court in such proceeding could not try the title to the land or remove cloud therefrom. Its jurisdiction was confined to reviewing errors committed by the probate court.” Schwind v. Goodman, Tex.Com.App., 221 S.W. 579, 581. It further appears from plaintiff’s specifications of error and said transcript of probate proceedings, that, following the judgment establishing his shortage to the estate, the offer or claim of restitution was not presented in that court, and no adjudication was ever had touching said issue. Hence, the district court did not err in dismissing plaintiff’s writ for want of jurisdiction, tRe probate court having made no order on the claim of restitution that such appellate court could review in this re-visory procedure. Minor v. Hall, Tex.Civ. App., 225 S.W. 784; Landgraf v. Landgraf, Tex.Civ.App., 114 S.W.2d 424.

Appellant further insists that if-the remedy by certiorari be not held available to him, the nature of the instrument, of date September 17, 1936 (whether a deed or mortgage) was an issue cognizable in the instant proceedings. In other words, that a cause of action for cancellation of deed and repossession was alleged independently of certiorari, which the district court had jurisdiction to entertain. Conceding, arguendo, that said pleading is susceptible to the construction that it embraces two counts, we think Pierce v. Foreign Mission Board, Tex.Com.App., 235 S.W. 552, 554, is sufficient authority for the statement that an original action in the district court cannot be joined with a petition in certiorari to the probate court, even. by consent. ’But aside from this, a perusal of said first amended original petition discloses that it is essentially a statutory suit in certiorari, for revision of previous orders in probate, the validity vel non of the aforesaid deed being a new, issue introduced therein upon appeal. Pertinent to this situation,' the court, in Pierce v. Foreign Mission Board, supra, after discussing a previous Supreme Court decision, said: "The effect of the decision of our Supreme Court aforesaid is that any judgment rendered by the district court in a probate matter in a suit originating in the district, court is void. We think the satine rule would apply where new issues were introduced after appeal in a case which was originally file'd in the county court. In an appeal proceeding in probate, the issues upon appeal must be confined to those in the original proceeding.” (Italics ours)

It follows that the judgment of the trial court on plaintiff's said pleadings must be affirmed.

Affirmed.


author: SPEER, Justice.

text:
    DAVIDSON v. GULF, C. & S. F. RY. CO. et al.
    No. 14003.
    Court of Civil Appeals of Texas. Fort Worth.
    Jan. 12, 1940.
    Rehearing Denied Feb. 23, 1940.
    Rawlings & Sayers and Nelson Scurlock, all of Fort Worth, for appellant.
    Terry, Cavin & Mills, of Galveston, and Wren & Jeffrey, of Fort Worth, for appel-lees.
   SPEER, Justice.

Plaintiff, W. E. Davidson, sued Gulf, Colorado & Santa Fe Railway Company, which we shall refer to as the Railway Company, and the Fort Worth Union Passenger Station Company, which we shall call the Station Company, for damages occasioned by an injury sustained by him when his foot was severed by the wheels of the Railway Company’s train.

It is unnecessary to state in detail the pleadings of the parties, since there is no issue made that they were insufficient upon which to base the testimony relied upon.

The acts of negligence charged to defendants as proximately causing plaintiff’s injuries were substantially: (a) failure to have the premises where plaintiff was injured sufficiently lighted; (b) failure to keep a watchman at the point to warn the public of the latent dangers while using the space between the tracks for passage, especially while the Railway Company had the street crossing blocked; (c) failure to have an employee to cover the open box after it had been used for servicing the train; and (d)’a failure to keep and maintain a safe means of ingress and egress, particularly for persons approaching the depot from the east. Sufficient allegations were made covering the damages claimed, including hospital and doctor’s bills, as well also loss of time and diminished earning capacity.

Defendants’ answers consisted of general and special demurrers, general denial and such special pleas as that adequate provisions were made for public entrance to the station from the Jones Street side; an exit was provided at the east side for passage to and from passenger trains; a passenger shed and platform 600 feet long was provided east of the station, that it was well lighted and suitable for uses intended. That all grounds east of the platform (where plaintiff was injured) were equipped for and only intended to be used by employees; the boxes for hose connections were located on the opposite side of trains while loading and unloading passengers ; they were necessary for servicing trains; that no provisions were made or intended to be made for passage by the public to pass from 17th Street to the station over and across the premises attempted to be used by plaintiff at the time of the accident.

A jury trial was demanded, but at the conclusion of plaintiff’s testimony the court sustained a motion by defendants for an instructed verdict, and upon that verdict judgment was entered, denying plaintiff a recovery. An appeal by writ of error was perfected.

Plaintiff bases his appeal upon two propositions, the first of which is in substance as follows: Since the evidence in this case shows that the Station Company, for a valuable consideration, permitted the Yellow Cab Company to operate a service to and from the station, and the plaintiff, while going to the station to obtain that service, using a part of the grounds which wás constantly used by pedestrians, with the consent and acquiescence of defendants, he must' be considered as an invitee; the defendants owed plaintiff the duty to main- ■ tain their premises in a reasonably safe condition, and were obligated to give warnings of latent and concealed perils.

The second proposition urged for a reversal is based upon the same state of facts set out in the first proposition, and concludes with this language: “He, the plaintiff, if not an invitee, was not a trespasser, but a mere licensee; so that plaintiff would be entitled to recover damages for the injury sustained by him, caused by the active negligence on the part of the employees of the railway company in leaving the lid off the concrete water box, which created a new and dangerous condition along the way used by plaintiff, which was the usual way of approaching the station from the east on Seventeenth Street, when the crossing is blocked.”

The instructed verdict by the court and the propositions urged here will necessitate a somewhat lengthy statement of the evidence.

The statement of facts definitely describes the grounds at and around the place of the accident. The station in the City of Fort Worth is located on the east side of Jones Street, having its entrance facing that street; it is operated by the Station Company. The passenger trains of several companies, including the defendant Railway Company, stop there for loading and unloading passengers. ■ Jones Street, upon which the station fronts, runs north and south; all railway tracks lie east of the street and, in the main, parallel it. The area covering the space of about four city blocks north and south, and extending east some distance, is known as the Railway Company’s yards, where it maintains many tracks used in connection with its freight and passenger service. These yards and station grounds are bounded on the south by 17th Street and on the north by 9th Street, each of which runs east and west, extending from foward the business district, and crosses Jones Street. West of Jones Street are also 16th, 15th and 14th Streets, extending at right angles from toward the business district, but each terminates at Jones Street. The Station building has a door on its east side, through which passengers go to and from the trains. There are two large sheds near the station, one of which is about 350 feet long and extends from the south end of the station toward 17th Street; this shed is referred to in the record as train shed number one, seems to be used almost exclusively for loading and unloading express and is not important insofar as this appeal is concerned. Shed number two is east of number one and extends from a point 150 feet north of the station building to a point south, even with shed number one, and in all is approximately 600 feet long. Number two is used for loading and unloading passengers. The space under the shed is referred to as the passenger platform and is paved with bricks and extends to within about eighteen inches of the track on either side; the pavement or platform is approximately even with the sides of passenger poaches while standing by its side. Track number one lies adjacent to the east side of the passenger shed and platform. When passenger trains come into the station, only the doors of the coaches on the side next to the platform are opened to permit passengers to enter or leave the coaches. The platform is well lighted from overhead. This shed’s south end is approximately 150 feet north of 17th Street, which is the south boundary of the station grounds and railroad yards. There are many tracks east of passenger track number one, the nearest one being about six feet away and parallels number one. All tracks east of number one are used only .for occupancy by rolling stock, switching purposes and such other uses necessary for handling and servicing box cars and passenger equipment when not in use. All of the grounds extending from 17th Street north are covered with chat or fine gravel. Between passenger track number one and the track immediately east of it the railway company maintains five or six concrete boxes with iron lids on them, the tops of which are flush with the ground or gravel. Inside of these boxes are water, steam and air connections for attachment of hose with which to service passenger trains while standing on passenger track number one. The steam box connection is about midway between 17th Street and the south end of the passenger shed. The other boxes are approximately two coach lengths or 140 feet apart and • extend north to the end of the passenger shed.

Plaintiff was riding in the car of another man, going west on 17th Street just south of the railroad yards, at about 11 o’clock on the night of August 24th, 1937. He observed that a passenger train had the crossing blocked, and at a point approximately 100 feet from the track, got out of the car. The driver of the car observed that a tire was almost flat and turned around and went back east to find a filling station to service his tire. Plaintiff walked west on 17th Street to where the train stood on passenger track No. 1, next to the east side of the passenger shed. He had started to the station to procure a taxi cab, if any were there, to take him to his home, and if no cabs were there he expected to walk on up town. He walked north between track No. 1 and the first track east. He had previously visited the station and knew the entrance was on Jones Street, and that if there were any cabs at the station they would be on Jones Street.

There were no lights in the vicinity of where he left 17th Street, but he could see lights at the passenger shed; some light filtered through car windows and from under the passenger train beside which he was walking. He passed the steam box and observed escaping steam. At another place he saw wet places on the ground, although it had not been raining. The train started moving south, the direction -in which it was headed. He saw a headlight from an engine on the track to his right and walked closer to the moving train on his left. He stepped into one of those open boxes and fell toward the moving passenger train, was struck on the shoulder with some part of the train and in his effort to extricate himself from further danger, his left foot was run over and severed; he was carried to a hospital, where his leg was amputated about midway between the ankle and knee.

The evidence further discloses that the area in the vicinity of the railroad yards is devoted largely to negro and Mexican houses; with the usual number of domino halls and chili parlors found in such districts. The brewery and other industrial plants are situated north of the yards. Prior to the date of the injury complained of, persons living south of the yards, in going to the business district and to the industrial plants, passed through the grounds above described, walking along the railroad tracks and between them, as did the plaintiff on the occasion when he was injured. They walked across the yards because if their destination was northwest it was a nearer route. Plaintiff had never before crossed the grounds, as he attempted to do on the occasion of the accident. He had worked for a railway, company at Waco, Texas, for nearly twenty years, was somewhat familiar with station grounds and railway yards and had learned something of water boxes maintained by railway companies around their stations. Plaintiff is a lawyer and has practiced his profession and worked for insurance companies, as an adjuster part of the time, since 1931. He was a member of the 43rd Legislature during 1933-4.

The matters mentioned are not in dispute, as are some of those to which we shall later refer.

Under the first proposition urged by plaintiff (appellant) it is not contended that he was an invitee upon the premises, because he expected to become a passenger on one of the outgoing trains using the passenger station, but he does insist that because the Station Company had contracted with the Yellow Cab Company for it to transact a taxicab service from the station, he had an implied invitation to come there for that service.

Plaintiff relies upon the rule laid down in Bustillos v. Southwestern Portland Cement Co., Tex.Com.App., 211 S.W. 929. That case involved liability for the death of a child from falling in a pit of hot embers beside a path commonly used by persons coming to defendant’s plant, especially by the wives and children of employees, while bringing lunches to employees who were not permitted by the employer to have enough time at the lunch hour to go out and get their lunches elsewhere. It was held that the injured child was, at the time of his death, on an errand connected with the business of defendant, and was in the interest of the company through a necessary service to one of its employees. The well-known principles applicable to the liability of the owner of premises to invitees are laid down in the opinion, which requires the use of ordi7 nary care to provide them a reasonably safe means of ingress and egress. In the course of the opinion, the court quotes with approval from the case of Plummer v. Dill, 156 Mass. 426, 31 N.E. 128, 129, 32 Am.St.Rep. 463, where it is said: “To come under an implied invitation, as distinguished from a mere license, the visitor must come for a purpose connected with the business in which the occupant is engaged, or which he permits to he carried on there. * * *” (Italics are ours.)

The first paragraph of the contract between Station Company and the Cab Company provides: “First Party (the Station Co.) during the term of this agreement, insofar as it can lawfully do so, will give to Second Party (Yellow Cab Company) the privilege of transferring passengers and baggage from the station of the First Party to the passenger stations of other Railroad Companies, and of delivering passengers and baggage to hotels and residences in the City of Fort Worth, Texas, as well as of soliciting the transfer of passengers and baggage on the premises of the Fort Worth Union Passenger Station.”

The contract further provides that the Station Company will set apart to the Cab Company sufficient space on its property, in close proximity to the depot, for the purpose of parking its cars, and also leases to it a small space in the station room for a desk and such office equipment as is necessary in connection with the cab service, all at an agreed rental price of $50 per month. There is a further provision in the contract which states that under no circumstances shall the checkmen of the Cab Company solicit passengers for any other interest.

A representative of the Cab Company testified upon the trial that in connection with the transfer business carried on “down there”, the taxicab drivers would haul anyone who comes to them and was willing to pay the fare.

Plaintiff was not a passenger, as contemplated in the contract between the Station Company and the Cab Company, and did not come within the class for which those parties had contracted. Even though the Cab Company would have accepted employment for its services by any member of the public, to be hauled from that point to any part of the city, it was not shown that the Station Company, through any of its representatives, knew that the Cab Company had previously performed such services or that it stood willing to do so in the future. In the circumstances it cannot be said that the Station Company was permitting another (the Cab Company) to carry on a business at the station, which was in no way connected with or pertaining to passengers patronizing the station. Plaintiff contends that the contract to which we have referred did not prohibit the Cab Company from doing a general business at the station; but it is sufficient to say that with the limitations found in the contract and absent its knowledge that additional services were being rendered, the Station Company was not “permitting” to be carried on at its station a general taxicab service, such as contended for by plaintiff.

The manager of the taxicab service testified that a representative always went to the station before the arrival of passenger trains to ascertain, if he could, the probable number of cabs necessary to accommodate the passengers coming in; he would then telephone to the main office of the Cab Company to send that number of cars; the telephone used by the Cab Company at the station had no outside or general connection other than with the main office. He further said that when trains departed all representatives of the Cab Company left the station.

The services .provided for in the contract were connected with and for the interest of the Station Company, but certainly a deal between plaintiff and the Cab Company, to haul him to his home in the city, could not be said to be in- connection with or in the interest of the business conducted by the Station Company. The mutual or beneficial relationship between plaintiff and defendants, under the circumstances, were no more than if plaintiff had attempted to find a taxicab at any other point in the city. The evidence does not disclose that there were any taxicabs at the station when the plaintiff received his injuries. The train was leaving the station, and if any presumption may be indulged, it may be said that the taxicabs were likewise leaving, as testified to by the manager.

What has been said is more especially applicable to defendant Station Company, but since it appears that the Railway Company was in no way interested in the operation of the depot premises, assuredly no liability on its part was shown, under this proposition.

In Shawver v. American Ry. Express Co. et al., Tex.Civ.App., 236 S.W. 800, writ refused, plaintiff sued the Express Company and two railway companies for damages sustained while going to a U. S. mailbox on the premises of the defendants. It was alleged that the Express Company negligently permitted the handle of a truck to extend onto the platform provided by the railway companies, and that she stumbled over the handle and received an injury. It.was claimed that the nature of defendants’ business was such that the public was expressly and impliedly invited to use the same, even upon such missions as that of plaintiff. It was there held that plaintiff, while on a mission to post a letter, was not an invitee, but at most was a licensee, and that such passive negligence as permitting the truck handle to fall down upon the platform did not render the Express Company liable for damages.

Somewhat similar to the case last cited is Kruse v. Houston & T. C. R. Co., Tex. Civ.App., 253 S.W. 623. In that case the railway company had given plaintiff permission to place bales of cotton on its platform as he bought them from farmers and to weigh them to ascertain the amount to be paid. -While weighing the cotton, plaintiff received an injury from a defect in the platform. It was held that the defendant had no interest in the work being done by plaintiff, and could not possibly profit as a result of the transaction. That the benefit, if any, to the company, from the use plaintiff was making of the platform was too contingent and remote to constitute him an implied invitee. „

In discussing the first proposition made by plaintiff, we have done so without regard to the fact that he was on the Railway Company’s premises at a place not prepared for nor intended to be used by persons other than employees. We have concluded and so hold that plaintiff was not an invitee by the defendants, either express or implied. The proposition and assignments of error upon which it is based aré overruled.

By his second proposition, as shown above, plaintiff contends that if he was not actually an invitee, he was a licensee and that the active negligence of the employees of the Railway Company, in leaving the lid off the box into which he stepped, created a new and dangerous condition along the route usually and customarily used by the public in approaching the station from 17th Street.

The authorities in this state are uniform in holding that the owner of premises owes no greater duty to a licensee .or even a trespasser than to not intentionally or purposely injure him. A distinction is closely drawn between acts of the owners when those' acts are merely passive as con-tradistinguished from active ones. The latter are included in the general class of those intentionally committed. We need not accurately analyze these expressions, for we do not see in this record a necessity for it

The acts of defendants which plaintiff contends constituted active negligence, such as to render them liable to a licensee, as shown by the pleadings, consists of a failure to keep a watchman at the point where he was injured to warn the public of. the danger, while the street was closed by a standing train; failure to have an employee to cover the box into which plaintiff stepped, after it had been used for servicing the train, and a failure to keep and maintain a safe place of ingress and egress for the approach of the station for persons coming from the east and from 17th Street.

Each of the acts complained of is for the failure of defendants to do something which plaintiff contends was their duty. A failure or omission by a person to do a thing is passive and not active.

The evidence in this case is silent upon what we conceive to be the essential elements of the points relied upon under the last proposition. It does not appear that plaintiff knew that any other person had ever attempted to cross the premises where he attempted to cross; nor does it appear that any other member of the public ever traversed the grounds for any purpose where he was injured, in the nighttime. No person is shown to have ever previously attempted to approach the station from the east or 17th Street for the purpose of taking passage on one of the trains going out from the depot, and no necessity was shown why such provisions should have been made by the Station Company, nor that the west approach and entrance were inadequate for all purposes. Plaintiff made no effort to show by the evidence whether or not the boxes along the route followed by him were customarily closed or left open for use by the employees; nor was it shown how long the lid had been off the box into which he stepped; indeed, there is no evidence in the record showing that the box was not actually in use by the employees when the accident happened; further, there was no evidence introduced showing that an employee took the lid off of the box or left it off after it was removed, or that any employee knew that the lid was off the box. In the absence of some evidence of the length of time the lid had been off the box, it cannot be said that any employee was guilty of active negligence in failing to discover that the lid had been removed. There is nothing in the record which remotely tends to show that any duty rested upon defendants to keep a guard at each of these six boxes to warn the public of latent dangers incident to stepping into them, at nighttime when no person (other than employees) appears to have used the railway yards for a convenient passageway while on missions in no way connected with the business of either of the defendants.

The plaintiff testified that he had previously visited the station, when he accompanied a passenger leaving on a train; that he approached the station from the Jones Street side; he said he had never previously attempted to approach the station from 17th Street, as he did on the occasion when injured. When he attempted to go as he did to the station, by traveling between the passenger track and the service track east of it, he traveled in semi-darkness, yet light enough to see that the ground was wet in places and that steam was emitted from at least one of the boxes. He says he knew from past experience in the railway service that boxes similar to those on the premises in question were maintained around stations.

In view of all the facts developed, and those upon which no evidence was offered, we believe the trial court properly decided that there was no evidence to form an issue of whether or not the employees’ failure to do the things enumerated constituted such active negligence as would render defendants liable for the injuries sustained by plaintiff. Authorities supporting our conclusions in this respect are: Shawver v. American Railway Express Co. et al., supra; Galveston, H. & S. A. R. Co. v. Matzdorf, 102 Tex. 42, 44, 112 S.W. 1036, 20 L.R.A.,N.S., 833, 132 Am.St.Rep. 849; Wichita Valley Ry. Co. v. Helms, Tex.Civ.App., 261 S.W. 225; Gulf C. & S. F. R. Co. v. Blackmon, Tex.Civ.App., 56 S.W.2d 199, writ refused. The proposition must be overruled.

The giving of the summary instruction for defendants was proper, and the judgment is affirmed.


author: CODY, Justice.

text:
    DUNCAN COFFEE CO. v. CHILES.
    No. 10935.
    Court of Civil Appeals of Texas. Galveston.
    Feb. 8, 1940.
    Samuel H. Peak, of Houston, for appellant.
    L. H. Engelking, of Austin, for appel-lee.
   CODY, Justice.

This suit was instituted by appellant against appellee, J. C. Chiles, as principal, and the remaining appellees as sureties on a bond alleged to have been given to cover the value of merchandise (and its proceeds) alleged to have been delivered by appellant to Chiles under a written consignment agreement executed on August 31, 1935, between the date of said written agreement and the end of January, 1938; and appellant alleged that Chiles failed to-account for a portion of said merchandise, and was short in his account with appellant in the sum of (about) $2,600. Appellant sued to recover from Chiles and his sureties for the face of the bond in the sum of $1,500 plus, together with reasonable attorney’s fees, alleged to be $500; and to recover from Chiles individually the excess of the alleged shortage over and above the amount of the bond sued on.

Appellee Chiles, in addition to answering by general demurrer and general denial, and by special exceptions, brought a cross-action against appellant for certain specified deductions alleged to have been made by appellant each month from the account of said Chiles through 1936 and 1937, which amounts were twenty-five per cent of the advertising costs of appellant in the territory under said Chiles, and which amounts totalled $2,334.51, and appellee Chiles alleged said deductions were illegally and unlawfully made without his consent and without any agreement to that effect. And that he never authorized any charges to be made against his account for advertising. Chiles also sued for commissions alleged to have been earned in January, 1938, in the sum of $400.

To Chiles’ cross-action appellant answered with a general demurrer and general denial, and by special answer alleged that when the relationship between Chiles and appellant was first established, whereby Chiles handled appellant’s merchandise under the written contract, that the compensation consisted of a straight salary paid to Chiles without any deductions there against, but in January, 1936, Chiles upon his own request was changed from a salary to a ■ commission basis; and that Chiles agreed that from his gross commissions there would be deducted 25% of all telephone, telegraph and advertising expense originating in his territory from which it was considered the business in his territory received a benefit; that Chiles fully understood this arrangement and expressly agreed to it; that such arrangement was fully explained to him and agreed to and accepted by him without complaint or question at any time prior to the filing of the cross-action by Chiles; that said arrangement was the custom, and practice of appellant in connection with compensation on a commission basis, as was known to Chiles, who knew, understood and agreed that appellant should rely on such arrangement, and that if Chiles had 'not accepted said arrangement he would not have been placed on a commission basis, which was well known to Chiles; and that thereafter the deductions of 25% were made every month without any complaint on the part of Chiles, thereby inducing the continuance of such relationship; wherefore, Chiles ratified, and both expressly and impliedly accepted and agreed to such deductions and manner of compensation and is estopped to deny such acceptance.

The proof showed that every month for about two years the deduction of 25% for advertising was made each and every month, and that the parties at various times accounted with each other and on those occasions it was agreed between the parties that Chiles was indebted to appellant in a substantial sum. For Chiles to have been so indebted to' appellant, as so .found and agreed, the parties necessarily took into account such deductions as having been properly made. And on none of these occasions did Chiles assert any claim against the right of appellant to make such deductions; and his agreement that he was indebted to appellant after these various ac-countings had between the parties was evidently based on the said deductions being proper, and Chiles frankly admitted that he understood all about such deductions being made from the compensation of men who were on a commission basis.

The case was submitted to the jury on special issues.

Special issue No. 1 asked of the jury if Chiles agreed with appellant that appellant should deduct 25% of the total amount spent by 'appellant in his territory for advertising, from his gross commissions each month. The jury -was instructed that an agreement “means the mutual expression of assent by the parties thereto to the terms thereof.”

Appellant objected to the definition because it was not broad enough to cover the legal significance of “agreement” and implied a specific or written agreement, and that there was no evidence or pleading that an agreement in the ordinary sense was had, and because Chiles himself testified without contradiction that he knew' and understood that certain advertising deductions would be made.

The jury answered the issue in.the negative.

Appellee contends that there was-no issue made 'by the pleadings in this case of any implied agreement. And in support of his contention states that appellant pleads solely an express agreement by Chiles for the deductions to be made from gross commissions to be paid him. And appellee relies on Morton Salt Co. v. Lybrand, Tex.Civ.App., 292 S.W. 264, 265, “The statute in regard to the submission of special issues authorizes a submission only when ‘raised by, the pleadings and the evidence,’ in other words, to justify its submission, the issue must be raised' by both pleadings and evidence; if raised by the pleadings and not by the evidence, or vice versa, it should not be submitted. However, if erroneously submitted, the jury’s answer should be ignored by the court, for (article 2211' (1994-5-7) Rev.St.1925) the judgment must conform to the pleadings, the nature of the case proved (the evidence), and the verdict of the jury, which necessarily comprehends a Verdict based on an authorized submission, under article 2189.” As it is evident that the parties have treated the definition of “agreement” here used as being a formal and express agreement, we will have to reverse the judgment of the lower court. Even the pleadings of Chiles, to which appellant pled a general denial, was broad enough to authorize the submission of the issue of whether or not the compensation of Chiles should, under the understanding and consent of Chiles, have deducted therefrom the 25% referred to. The pleadings of appellant were multifarious and prolix but when studied will be found to be broad enough to admit proof of an agreement and understanding of the parties implied from their course of dealing to the effect that there should be certain deductions made from the gross commissions earned by Chiles. Such pleadings being broad enough to admit such proof, they were broad enough to warrant the submission of an issue which such proof tended to prove.

The term “agreed” or “agreement” is broad enough in meaning to include the conception of a meeting of the minds of parties as implied from 'and evidenced by their conduct and course of dealing;, and under the pleadings and proof the court should have enlarged his definition of the, term, for the proof of an agreement between the parties, implied from, their course of dealing, was such that the. jury could have found such an agreement did exist between the parties as appellant claimed.

For the error here discussed, the judgment of the trial court is reversed and remanded.

Reversed and remanded.


author: PRICE, Chief Justice.

text:
    TEXAS EMPLOYERS INS. ASS’N v. HEVOLOW.
    No. 3870.
    Court of Civil Appeals of Texas. El Paso.
    Jan. 11, 1940.
    Rehearing Denied Feb. 8, 1940.

      Atchley & Vance, of Texarkana, for appellant.
    Wm. V. Brown, of Texarkana, for ap-pellee.
   PRICE, Chief Justice.

This is an appeal from the District Court of Bowie County in a workman’s compensation case. The claimant, Green B. Hevo-low, hereinafter called plaintiff, recovered compensation in a lump sum against Texas Employers Insurance Association, hereinafter called defendant. The amount of the judgment was $3,205.25. The judgment was based on a compensation rate of $9.44 per week and there was a credit thereon for amounts already paid. Defendant duly perfected appeal from such judgment. The trial was before a jury on special issues. The verdict, insofar as pertinent here, was • as follows: Plaintiff, by his injury, sustained total incapacity on or about December 7, 1937; such incapacity was permanent; in favor of a lump sum settlement; against partial incapacity. The finding as to average weekly wage was set aside by the court on motion of the defendant, and judgment was entered in that respect in accordance with the motion of defendant. No point is made by either party as to such action of the court.

The proper disposition of this case depends on the correct determination of four points: (1) Was there sufficient evidence to justify the finding by the jury of permanent total disability; (2) was there evidence raising the issue of specific injury to the leg; (3) if there was an issue as to specific injury to the leg only, did the defendant make request for the submission in proper form; (4) did the court commit error, that is, reversible error, in admitting in evidence, over the timely objection of the defendant, testimony as to the temperature of the room or building in which plaintiff worked and its effect upon him.

The first point is sufficiently raised by defendant in various exceptions and objections. To a proper discussion of this matter a synopsis of the evidence is perhaps essential.

The case was submitted on the evidence adduced by the plaintiff. It was shown that plaintiff, on December 6, 1937, in the course of his employment, was carrying a drum weighing from 150 to 200 pounds and fell head first down a stairway consisting of thirteen steps leading, without turn or curve, straight down to the first floor. The drum rolled on his body, and his left leg was broken between the knee and ankle. The trial herein was held on October 12, 1938, and from December 6, 1937, to the date of the trial plaintiff has suffered continuous pain in his knee, ankle, foot and back; his leg hurt him when he walked, and if he sat down after walking his hips hurt him; if he did any considerable walking his foot and ankle swelled; he was unable to stoop over and pick anything up because it hurt his hips and back; in order to relieve the pain in his leg and back frequent hot applications were made; his leg was in a cast for many weeks after the accident. At the time of the accident he was a healthy, robust man, fifty-two years old. He had not done any work up to the date of the trial.

The above facts as to plaintiff’s injury and the effects thereof certainly reasonably warrant the inference on the part of the jury that plaintiff’s disability was total up to the date of the trial, and that such condition would continue for a time at least thereafter. From the nature of the •accident and the pain in the back and hips persisting for more than ten months the jury might reasonably infer injuries other than to the leg. It does not occur to us that there is any necessary connection between the broken leg and the pain in the back. However, the real question is not what we might have found as to the accident and duration of plaintiff’s injuries, but whether the facts were such as reasonably justified the jury in making the finding that same were total and permanent. There are injuries to the back and spine that are inferred from their effect alone. Even with the modern methods of diagnosis there are serious injuries and conditions that defy objective demonstration. The record shows that medical testimony was perhaps readily available to both plaintiff and defendant, and that neither elected to introduce same.

Ten months is a long time for pain and disability to persist from 'a broken leg. Ten months is a long time for acute pain to persist in the back. The accident was one of grave violence. Under the evidence plaintiff limps and walks with a cane. We are unwilling to hold that under the evidence as to the character of the accident, the injuries inflicted, the persistency of their effects, the jury were not reasonably justified in finding total and permanent disability.

The jury may find as to these matters unaided by expert medical testimony. Davies v. Texas Employers’ Ass’n, Tex. Com.App., 29 S.W.2d 987; Texas Employers’ Ins. Ass’n v. Moore, Tex.Civ.App., 279 S.W. 516; Texas Indemnity Ins. Co. v. Preslar, Tex.Civ.App., 298 S.W. 666; Texas Employers’ Ins. Ass’n v. Scott, Tex.Civ.App., 46 S.W.2d 348; Texas Employers’ Ins. Ass’n v. Burnett, Tex.Civ.App., 52 S.W.2d 771.

The assignments as to the insufficiency of the evidence are overruled.

The question of whether or not the issue as to specific injury was raised depends upon the pleading and the evidence. Plaintiff’s pleading tendered the issue of general injury resulting from the accident. It was perhaps sufficient to warrant a recovery for a specific injury to the leg. Defendant relies upon its general denial to raise the issue. We think the issue of specific injury was raised by the general denial.

There would seem to be no vital difference in principle between the issue of partial incapacity and specific injury in the matter here in question. Plaintiff pleads the injury to the leg and to. other portions of his body, the general denial would certainly support proof that the leg only was injured.

In the opinion of the writer the issue of a specific injury was raised. The only objective injury to plaintiff was a broken leg. For the establishment of the effects of this injury and to injuries to other parts of his body plaintiff must rely upon subjective symptoms and the nature of the accident. Testimony as to subjective symptoms must come solely from him. The jury were not bound to take his testimony as true. It seems to the writer that in passing upon this testimony it might have been reasonably found by the, j.ury that the injury and its effects were confined solely to his leg. If the issue had been found in favor of the defendant the period and amount of its liability would have been materially lessened. Loss of the use of a leg, where the effect of the injury is confined thereto, is specific and the compensation therefor is under Section 12 of Article 8306, R.S.1925. Petroleum Casualty Co. v. Seale et al., Tex.Com.App., 13 S.W.2d 364; Maryland Casualty Co. v. Dicken, Tex.Civ.App., 80 S.W.2d 800.

Under Section 12 of Article 8306 the maximum recovery for the total loss of a leg is confined to two hundred weeks.

The court did not submit the issue of specific injury in the charge. Hence it was incumbent upon the defendant to properly request same in writing.

In paragraph 12 of the exception of defendant to the court’s charge is found the following:

“The defendant objects and excepts to the Court’s charge as a whole, because the evidence in this case raising the issue that the plaintiff’s injury and its effects are confined solely to the loss of the use of his left leg, and the defendant is entitled to have such issue submitted to the jury, and here and now requests the court to submit to the jury the following special issue, to-wit:
“ ‘Do you find from a preponderance of the evidence that the plaintiff’s injury and its effects are not confined solely to the loss of the use of the left leg?’
“Answer ‘yes’ or ‘no.’
“Respectfully submitted,
“Atchley & Vance,
“Attorneys for defendant/*

From the above it readily appears that the charge was not requested in the stereotyped manner, in that it appears in the exceptions.

Article 2188, R.S., governs here, we think. Now the request, although formulated, is not in such form that the court could endorse thereon “given” or “refused,” and sign the same officially. In order that the refusal of the special charge or special issue be considered as a bill of exceptions, the requisites of Article 2188 must be substantially complied with.

Beypnd any question the exception alone is insufficient to present error as to the court failing to submit the issue. Miller v. Fenner, Beane & Ungerleider, Tex.Civ.App., 89 S.W.2d 506; Harris v. Thornton’s Department Store, Tex.Civ.App., 94 S.W.2d 849; Harris v. Leslie, 128 Tex. 81, 96 S.W.2d 276; Texas & N. O. R. Co. v. Crow, 132 Tex. 465, 123 S.W.2d 649.

This request was unquestionably submitted to the court in writing. It may be verily said that same was refused, in that the exception of the defendant appears to have been overruled. However, under the terms of Article 2188, in order to constitute same a bill of exceptions with the presumptions attaching thereto as provided by the Article, the provisions of the law must be complied with. Article 2186, R.S., provides: “ * * * Such instructions shall be prepared and presented to the court and submitted to opposing counsel for examination and objection within a reasonable time after the charge is given to the parties or their attorneys for examination.” It nowhere appears in the exceptions that the special charge was ever presented to counsel for appellee before the court acted upon same. To be entitled to complain of the refusal of request for a special charge or special issue the bill of exceptions must show that same was submitted to counsel for the opposite party. Walker v. Jean La-Fitte Hotel Corp., Tex.Civ.App., 94 S.W. 2d 504; Cox et ux. v. City of Fort Worth, Tex.Civ.App., 102 S.W.2d 504; Geistmann v. Schkade, Tex.Civ.App., 121 S.W.2d 494.

In our opinion, if the procedure prescribed in Article 2188 is adopted and the court marks on the special issue it is “refused,” that there is a presumption that the requirements as contained' in Article 2186 have been complied with. On the other hand",'if he does not see fit to comply with’Article 2188, there is no presumption that Article 2186 has been complied with. We are of the opinion that no error is presented by the assignments complaining of the refusal of the court to give -the special issue requested in the exception.

Over the objection of the defendant evidence was introduced that the temperature of the room in which plaintiff worked was very high, at times from 117 to 118 degrees; that a spray was sometimes used to cool off the atmosphere; that the high temperature caused the plaintiff to perspire very profusely. Defendant’s objection was that the testimony was immaterial, irrelevant and highly prejudicial. If this testimony was subject to the.very general exception made we are at a loss to see how it- either benefited the plaintiff or harmed the defendant. Plaintiff’s injuries, so far as the evidence shows, were in no way connected with or caused, by the high temperature of the room where he worked. The insurance carrier could in no way be held reasonably responsible for the temperature of the room. In our opinion the testimony neither aided the plaintiff nor operated to the detriment of the defendant. In any event, the objection was too general. Capitol. Hotel Co,, v. Rittenberry, Tex.Civ.App., 41 S.W.2d 697, and cases therein cited.

We find no error in the case.

Affirmed.


author: WALTHALL, Justice.

text:
    EDWARDS et al. v. PEACOCK.
    No. 3822.
    Court of Civil Appeals of Texas. El Paso.
    Jan. 18, 1940.
    Rehearing Denied Feb. 8, 1940.

      Travis White, of El Paso, on motion for rehearing only, and Del W. Harrington and A. L. Carlton, both of El Paso, for appellants.
    C. W. Croom, of Houston, and R. E. Cunningham, of El Paso, for appellee.
   WALTHALL, Justice.

The statement in appellants’ brief of the nature and result of this suit is approved by appellee, and we adopt and copy appellants’ statement here with a few -minor changes or added words.

H. W. Peacock died in El Paso County, Texas, on the 19th day of September, 1937. He left a written will consisting of two pages in which J. D. Peacock, his brother and appellee herein, was named as “sole trustee and custodian of my estate.” This will was filed for probate on October 7th, 1937 and appears among the original instruments brought up to this court and designated as “Exhibit C.” This will was on October 28th, 1937, admitted to probate without objections or contest by any one. The said J. D. Peacock, who filed said will for probate and’made application to be appointed as executor thereof, was so appointed by the County Court of El Paso County, Texas. On October 19th, 1937 the said J. D. Peacock filed what is purported to be a typewritten will made by the-said H. W. Peacock, which is designated as exhibit “B” and is on file in this court as an original instrument brought up from the District Court. This instrument was offered for probate at the same time as was exhibit “C” and by the same J. D. Peacock. There was no protest entered by any person to the probating of said exhibit “B”, but Judge McGill denied the application to probate the same because it was not witnessed by any one. On the 6th day of January, 1938, the same J. D. Peacock filed the instrument designated as exhibit “A”, which is also filed in this court, and with it made application ,to the County Court of El Paso County for probate of said instrument, as the last will and testament of H. W. Peacock. This instrument consists of five sheets of paper, pages one and two of which are exact carbon copies of the will that was admitted to probate. The other three pages are also carbon copies, the originals of which are in no manner accounted for by any witness or otherwise in the record. Page three of said exhibit “A” shows to have been mutilated .by the cutting off of about, one-third o’f the sheet. By the time the last mentioned instrument was filed, appellants herein had learned of the activities of appellee in his offering of the instruments “B”,and “A” as the wills of their relative, H. W. Peacock and employed counsel and entered their protest against -the admission of said exhibit “A” as the will of H. W. Peacock. The County Court denied the application to probate the instrument, exhibit “A”, as the will of H. W. Peacock on March Sth, 1938, and the whole record was taken to the District Court for the 41st District on appeal and writ of certiorari by J. D. Peacock, appel-lee herein. Upon the trial in the District Court exhibit “A” was admitted to probate and the case is brought to this court on appeal from the judgment of the District Court.

In addition to the above statement we state. some portions of the trial District-Court’s judgment and the will admitted to probate in that court which we think tend to explain more fully the exhibits elsewhere referred to.

The case was tried before the court without a jury; the judgment recites that Homer W. Peacock, testator, died in El Paso County, Texas, September 19, 1937, arid'at the time of his death he had his domicile and principal part of his property in El Paso- County, Texas; that pages 1,' 2 and 3 of the will produced bear date of 10/4/1933, and that page 4 of the will bears date of 1/16/1934, and that page five of ’ the will bears date of November 20, 1934; and that a copy of the will is attached and identified as indicated, “In the matter of the Estate of Homer W. Peacock, deceased”; that the will was executed with the formalities and under the circumstances required by law; that the said will had not been revoked; that the testator was more than twenty-one years of age, and was possessed of testamentary capacity at the time he made the will. The court found that the above described will was executed by Homer W. Peacock with the formalities and under the circumstances required by law; that the will had not been revoked; and admitted it to probate, appointed J. D. Peacock executor of the estate and made other orders not necessary to state.

The will admitted to probate by the District Court reads as follows:

“El Paso, Texas, 10/4-33 ..
“This will revokes and makes void all previous wills that I have made.
“In these wills I agreed to donate and leave to R. L. Greenwood of El Paso Texas, the sum of $1000.00 one thousand dollars.
“Under no circumstances is he to receive one dollar from my estate. My brother J. D. Peacock of Memphis Tenn— 1412 Monroe Ave. — is hereby appointed trustee and custodian of my estate. Without bond.
“The sum of one hundred dollars each is hereby left to my nephews and nieces, sons and daughters of my brothers and sisters.
“Also the sum of $100.00 is left to the Salvation Army — and the sum of $50.00 is also left to the Times Baby Milk Fund. “Page #2. My last will and testament dated Oct. 4th 1933.
“In case of my continued illness or sudden death—
“Please wire my brother J. D. Peacock 1412 Monroe Ave. Memphis, Tenn — to come to El Paso at once and take charge of my property and my estate. I do not owe any money to any one, but my taxes must be paid.
“I own in fee my property on W-Overland St. I also own one half of the property on Myrtle Ave 717 — Mrs. S. H. Run-kle owns the other half. I also hold a mortgage for $16,000 about against Sam Watkins and the property 915 Texas St. You will also find a deposit in postal savings and my diamonds in my box — also insurance in Shrine Widows Fund and Policy in Capital State Benefit Assn. Willow Hill, Ill.
“H. W. Peacock
“Page '#3
“At Fay wood, N.M. you will find about 2000 shares of stock in the Arizona Realty Co — which belongs to Mrs. S. H. Runkle of Jacksonville, Fla.
“Also about 1800 shares of same stock which belongs to me Am also interested in 800 shares of London Mountain Gold Mining Co — stock of. Denver Colo, in my name and 800 shares in name of R. H. Flowers my nephew of Waycross, Ga.
“HWP
“Page '#4
“It must be understood by this my last will and testament that 'all the remainder of my property both real and personal other than that awarded in the bequests above is to become the property of my brother J-D-Peacock of! Memphis Tenn 1412 Monroe Ave His fine life, his clean mind his sweet tempered disposition has been a pattern that ought to have made me a better man and in giving him without reservation all of my real and personal property other than the small bequests stated herein I am repaying him in small part for what he has done for me.
“Hence there must be no misunderstanding of my intentions and my desires,
“Page #5 Nov. 20th — 1934
“I now learn with pleasure that Emma and Charles son and daughter of my deceased brother James B. Peacock are possessed of good sized fortunes from their father’s estate hence will not will not need the bequests left them as set forth above. I therefore withdraw the bequests left to them and add the $200 to the bequest left my niece Elsie Flowers Edwards, making three hundred dollars left to her and request that this be paid to her at the rate of $15 per month until the full $300 is paid and the $100 left to her brother and my nephew R. H. Flowers can be paid at same rate since my own income has been reduced by the depression from about $645 a month to less than $125 a month.
“My brother J. D. Peacock can pay Scott and Rey his two fine children and my nieces as he sees fit—
“H. W. Peacock
“This is my last will and testament”

The trial District Court overruled plaintiffs’ (appellants’) motion for a new trial and appellants perfected this appeal.

Appellants submit six propositions. The first complains of the admission in evidence of a letter purporting to have been written by Homer W. Peacock to J. D. Peacock, the letter relating to transactions between them.

In the brief appellants insist that the letter should have been excluded, over objection, under Article 3716 of the Revised Civil Statutes. The record shows substantially the following:

Attorney for appellee: “I hand you (attorneys for appellants) a letter dated October 20, 1933.”

Attorney for appellants: “We want to object to the introduction of this letter on the grounds: it is written altogether on a typewriter; they show no envelope in which it was received and there is no evidence whatever as to who was the writer nor to whom it was intended; it says ‘Dear Brother,’ and the witness (J. ,D. Peacock) has testified there are other brothers, and it might have been written, if by Homer, to any one; we object on the ground that it is wholly incompetent, immaterial and irrelevant.”

Appellee, continuing: “I hand you plaintiffs’ exhibit ‘D’. I want you to look at that and state what it is.” Answer: “That is a letter from brother.”

Question: “How did you receive that letter?” Answer: “I received it in the open mail, under a three cent stamp as he always wrote to me.”

Question: “Did he ever write to you on the typewriter like this?” Answer: “Yes, sir, always on the typewriter.”

Question: “Now, the matters spoken of in that letter, did those things exist between you and your brother?” Answer: “Yes, sir, they certainly did.”

Attorney for appellee to the Court: “I want to offer the letter in evidence, this letter marked exhibit ‘D’.”

The Court: “Is this the letter you urged the objection to gentlemen?” Answer: “Yes, sir.”

The Court: “Overrule the objection.”

Attorney for appellants: “If the Court please * * * we object to this extraneous matter because it is incompetent to> prove the execution of a will.”

The Court: “Your objection may be well taken, overrule it for the present.”'

Later appellee offered another, exhibit “N”. At that time the Court said: “For the present I am going to change my ruling on that matter.”

We have stated all the objections made to the letter (exhibit “D”) found in the record. The specific objection made to the introduction of the letter as evidence is that it is “wholly incompetent, immaterial and irrelevant.”

The objection to the letter 'as evidence stated in appellants’ brief is that it should have been excluded under Article 3716, R.C.S., which article provides that “neither party shall be allowed to testify against the others as to any transaction with, or statement by, the testator, intestate or ward, unless called to testify thereto by the opposite party.” The record does not show that such objection was made. The objection may be waived. McCormick & Ray’s Texas Law of Evidence, page 242, § 158.

We have concluded from the record as above that the errors asserted in the first and second propositions, if errors, are not made sufficiently clear to justify a reversal of the case, and they are overruled.

The court admitted in evidence the instrument purporting to be a typewritten will and purporting to be written by Homer Peacock on his typewriter. Error is urged on the ground that said instrument was not executed nor proven as provided by Article 8283, Revised Statutes.

Two instruments were submitted in evidence, each as the last will of Homer W. Peacock. The instrument referred to in the above proposition is not the instrument admitted to probate as the last will of Homer Peacock, and was not offered as such, but for evidentiary purpose only. Compton v. Dannenbauer, 120 Tex. 14, 35 S.W.2d 682, 79 A.L.R. 1488. The proposition is overruled.

The court admitted in evidence an instrument which the court admitted to probate as the will of Homer Peacock. Appellants’ fourth proposition urges error thereto because the instrument is composed of five carbon copy pages, the originals not accounted for as to pages one and two, the other three pages not shown to have ever been in the possession of or regarded by Homer Peacock as any part of his will.

The facts stated in the proposition we do not consider to be supported by the record or found by the court. The five pages of what the trial court apparently accepted as the original five pages of the instrument are found in the record and are sent up to this court. The instrument copied in the court’s judgment as the will admitted to probate is the instrument shown by the evidence to be the.will of Homer Peacock, and contains what the evidence shows to be'the signature of H. W. Peacock. The signature is shown to be' that of H. W. Peacock by a number of business men who were familiar with his handwriting. The proposition is overruled.

What has been, said in discussing the above propositions applies to propositions not discussed.

While the trial under the facts and circumstances disclosed by the record is necessarily confusing,- we have concluded that the case should be affirmed, and it is so ordered.

Affirmed.

PRICE, C. J., did not participate in the disposition of this case.


text:
    SAWMAN OIL CO., Inc., v. BUSH.
    No. 3819.
    Court of Civil Appeals of Texas. El Paso.
    Jan. 18, 1940.
    Rehearing Denied Feb. 8, 1940.
    Whitaker, Perkins & Turpin, of Midland, for appellant. .
    Joseph A. Seymour, of Midland, for ap-pellee.
   WALTHALL, Justice.

The appellee, John J. Bush, brought this suit against the appellant, the Sawman Oil Company, a corporation, to recover of it, on an oral agreement, compensation for the rental of a certain oil well spudder machine or implement and certain tools appurtenant thereto, at the rate of ten dollars per day for one hundred, and fifty-six days. The terms and conditions of the rental agreement are stated by appellee in his petition as.follows: “The defendant was to operate said spudder on the basis of a twelve-hour day and to hire and employ plaintiff’s head driller, Tom Simmons, to supervise and handle the operation of said' spudder during the time same was- being used by the defendant, and that in consideration thereof the said defendant was to pay to plaintiff for the use and renting of said spudder the sum of ten dollars for each and every day said spudder was in defendant’s possession and control and to return said spudder and tools appurtenant thereto to the plaintiff in as good condition as they were when delivered, natural wear and tear only excepted.”

Appellee alleged that appellant continued in possession and use of the spudder and tools from the 25th day of July to the 29th day of December, 1937, a period of one hundred and fifty-six days; that appellant failed to return said spudder and tools to appellee, and on December 29, 1937, appellant informed appellee that it was through with said spudder; that appellee was compelled to expend $50 to have the spudder returned.

Appellee alleged that during the time the spudder and tools were in the possession and use of appellant, appellant either lost or destroyed the following• tools, to-wit: One dj^xló inch drill stem of the value of $85; one 5½ inch bailer of the value of $20; one set of drilling jars of the value of $50; one metal tool box of the value of $20; one five inch bit of the value of $20; a total of $195, in which sum appellee was further damaged, and that appellant has failed and refused and continues to fail and refuse to replace or compensate ap-pellee therefor. Appellee states his' damages and sues for $1,780.82, with interest thereon from December 29, 1937, and costs of suit.

Appellant answered by general demurrer and general denial, and specially denied all liability except $36.03, and as to said sum alleged that at all times it has been and still is ready and willing to pay, and that before the commencement of the suit appellant tendered and offered to pay appellee by check the sum of $40, which appellee refused, and that appellant now brings and tenders into court the sum of $36.03, and other than the above prays that appellee take nothing.

The case was submitted to and tried by the court without a jury. The court overruled appellant’s demurrer, heard the evidence, expressed the opinion in the judgment that appellee should recover of appellant compensation for the rental of the spudder and tools at the rate of ten dollars per day for the period of 156 days, the total sum of $1,560, less $44.18 paid by appellant, and less $47.82 expended by appellant for repairs on the spudder. The court, in the judgment, said appellant should deliver to appellee upon his demand and at his expense the following tools, to-wit: one 4½ by 16 inch drill stem; one 5½ inch bailer; one set of drilling jars; one metal tool box, and one 5 inch bit; and rendered judgment for appellee against appellant in the sum of $1,468.03 as compensation for the rental of the spudder and tools, with interest from October 12, 1938, and that appellee recover his costs. The court overruled appellant’s motion for a new trial.

To all of which rulings and findings and conclusions appellant duly excepted and prosecutes this appeal.

Opinion. ⅛

The record states that in response to the request of appellant the court makes and files his findings of fact and conclusions of law.

The court’s findings of fact are substantially to the effect:

1. On July 25, 1937, by oral agreement appellee rented to appellant the oil well spudder and tools, for which appellant agreed to pay the sum of ten dollars per day.

2. On the day stated appellee delivered to appellant the spudder and tools; thereafter appellant retained possession and control of the spudder and tools for a period of 156 days, or until December 29, 1937, at which time appellee' resumed possession of the property except certain tools specified.

3. When appellee resumed possession of the property and since said time appellant failed to return to appellee the tools specified in the judgment, and that appellant is willing to surrender to appellee possession of said tools upon appellee’s demand.

4. Appellant has heretofore paid, or caused to be paid to appellee to apply on the rental of the spudder and tools the sum of $44.18.

5. During the time the spudder and tools were being used by and in possession of appellant, it caused $47.79 to be expended for repairs, which expenditure was just and reasonable.

Conclusions of Law:

1. Appellee should recover from appellant compensation for the rental of the spudder and tools at the rate of ten dollars per day for 156 days.

2. Appellant should deliver to appellee on demand and at appellee’s expense the items of tools indicated in the judgment.

3. There should be deducted from the amount appellee should recover from appellant as compensation for rental for the spudder and tools, the items indicated in numbers four and five of the findings of fact.

■ Appellant assigns error to the judgment of the court awarding compensation for the use of the spudder for the total period of 156 days, the time the spudder remained on the premises of appellant, thus charging appellant at th.e contract price for the time the spudder was being used and the time the spudder .was not used, appellant’s contention being that the undisputed evidence being that the spudder was not used by' appellant for a longer period than twenty-nine days; that the undisputed evidence being that the spudder was not to be returned to appellee but was to remain on the premises until called for by appellee.

Appellee alleged that appellant “was to pay to plaintiff for the use and renting of the spudder the sum of ten dollars for each and every day said spudder was in the defendant’s possession and control, and to return said’ spudder and tools appurtenant thereto to the plaintiff in as good a condition, etc.”

. .Appellee testified that Mr. Simmons was to supervise the spudder “while they had it”“he. was to go along and look after the spudder and tools” (at the employment of appellant), “and they agreed to do that,” which Simmons did.

The time Simmons worked with the spudder for appellant is indefinite, but ap-■pellánt concedes, and we think the evidence shows, about twenty-nine days. The evidence' ¡does ,not show that appellant used the spudder for • more than twenty-nine days. The question then recurs upon the evidence as to the time and place appellant surrendered, that is, made a return to appellee, the possession and control of the.spudder and tools.. It seems to be conceded, by appellant that some of the tools had not been surrendered or returned at the time of the trial, though appellee took possession of the spudder and some of the tools on December 29, 1937.

The evidence as to the issue on the surrender or return of the property is meager, especially when considered in view of its importance in the case. Appellee testified that he did not recall where they were to deliver it back to him — said “I don’t recall there was a definite place.”

Question: “After all, they weren’t to turn it back to you and didn’t have instructions to deliver it to any certain place?” To which appellee replied: “No.”

Question: “If they wanted to deliver it, they wouldn’t have known where to deliver it without coming to you and asking you, would they?” Answer: “I informed them if they would put everything back together I would get it.”

Question: “To leave it on the lease and that was all right if they would leave it together?” Answer: “Sure, so I could get it.”

The contract shows to be a rental contract of personal property for hire and for no definite period of time. It was, therefore, terminable, we think, at the option of either party to the contract. As a general proposition a contract, indefinite as to the time of its performance, may be terminated by either party by giving notice of an intention to do so. Kennedy, et al. v. McMullen, Tex.Civ.App., 39 S.W.2d 168, 174; 13 Corpus Juris, p. 604, § 630; Note 81; 6 R.C.L. 895, and many other authorities we have examined. We mean only to hold that in this kind of contract something must be done by the party terminating the contract sufficient to indicate to the other party an intention to terminate the contract. The record does not disclose that appellee had notice or knew that the property was not in use by appellant until notified by appellant on December 29, 1937, and we think the contract terminated at that time.

The judgment rendered for the tools not delivered is not such a judgment ‘as can be enforced by execution. We think' that-' under the pleadings the judgment for the item of tools not returned or delivered as indicated by the trial court should be omitted without prejudice, except as to the value of their use, which walue of their use is included in the judgment, not omitted. ;.

The case, except as above indicated, is affirmed.