author: TALBOT, J.

text:
    PRUITT et al. v. BLESI et al.
    (No. 7985.)
    (Court of Civil Appeals of Texas. Dallas.
    May 25, 1918.
    On Motion for Rehearing, June 22, 1918.)
    1. Appeal and Error <©=>628(2), 771 — Dismissal op Appeal — Failure' to File Statement op Facts.
    Upon a motion, made 11 months after perfecting appeal and 8 months after filing transcript, requesting affirmance of judgment because neither a brief nor statement of facts had been filed, appellant’s excuse that the court reporter had failed to transcribo and file the trial testimony in question and answer form as required by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1924, is' insufficient to show appellants without fault where neither mandamus against such reporter was brought nor attempt made to prepare a statement of facts from memory as provided by article 2068.
    2. Appeal and Error <©=5544(21 — Review-Scope — Where No Statement op Facts.
    In the absence of a statement of facts rulings upon admission and exclusion of evidence will not be revised, unless it manifestly appears from the bill of exceptions and the record that such a ruling was both erroneous and prejudicial to the complaining party.
    3. Appeal and Error <©=>907 (1) — Review-Incomplete Record — Validity op Rulings — Presumptions .
    Where appellant brings up a record showing only part of the proceedings, every reasonable presumption will be indulged in favor of the court’s rulings, which will be reversed only when they cannot be upheld upon any possible state of the case.

      4. Wills <§==>370 — Probate — Review — Incomplete Recoed — Admissibility oe Evidence — Prejudice.
    In a review upon an incomplete record, held, that the ruling admitting' the testimony of a witness to a will cannot he revised where neither the bill of exceptions nor the record show sufficient to determine if such testimony controlled the jury’s finding or prejudiced appellant.
    On Motion for Rehearing.
    5. Appeal and Error <§=554(1) — Statement op Pacts — Failure to Pile — Excuse.
    That the regular 'court reporter was absent from the state, with approval of the court, and engaged in private work much of the time between the trial of the cause and the motion to dismiss appeal for want of statement of facts, held not to excuse plaintiff’s failure to compel transcription and filing of testimony.
    Appeal from District Court, Dallas County ; W. P. Whitehurst, Judge.
    Proceeding in the county court by E. C. Blesi and others to probate a purported will of C. H. Dangdeau. A contest was instituted by Mrs. Josephine Pruitt and others. Prom an order admitting the will to probate, an appeal was taken to the district court, where the will was again admitted to probate, and contestants again appeal.
    Affirmed.
    W. D. Cardwell and Adams & Stennis, all of Dallas, for appellants. Thompson, Knight, Baker & Harris, of Dallas, for appellees.
   TALBOT, J.

This is a proceeding commenced by the appellees in the county court of Dallas county, Tex., to probate what purports to be the last will and testament of C. H. Dangdeau, deceased. To the probating of the will a contest was filed by the appellants, Mrs. Josephine Pruitt and others, mainly upon the grounds: First, that the deceased, at the date of the execution of the will, had not sufficient mental capacity to make a will; second, that in the execution of said will the deceased was dominated and unduly influenced by the appellees, and the same was not his free and voluntary act. On April 17, 1916, by order of the county court said will was admitted to probate, and the contestants appealed to the district court: Upon a trial in the district court the will was again admitted to probate, and contestants appealed to this court.

On April 22, 1918, the appellees filed a motion in this court asking that the judgment of the district court be affirmed, because, notwithstanding the transcript was filed in this court on August 17, 1917, appellants had filed no brief in this court, nor in the trial court as required by rules and statutes of this state, and because no statement of facts had been filed herein, and there was no fundamental error committed in the trial of the cause in the district court. Answering the motion of appel-lees to affirm, the appellants insist that the judgment of the trial court should not be affirmed, but should be reversed, and the cause remanded, “for the reason that without any fault of appellants, and after due diligence, they have been unable to prepare a statement of facts in this cause and file briefs herein, because of the failure of the .official court reporter and stenographer of the Sixty-Eighth district court, Dallas county, Tex., to transcribe and file with the clerk of the district court, in question and answer form, as required by article 1924 of Vernon’s Sayles’ Statutes, the testimony taken at the trial of said cause, as is more fully shown by motion of appellants to postpone the submission of this cause heretofore filed in this court on April 4,1918,” and because of fundamental error apparent upon the face of the record.

We have carefully considered the reasons given and urged for a reversal of the case on the ground that'the appellants have been deprived of a statement of facts, and find ourselves unable to agree to the claim that such deprivation is without negligence and fault on their part. The judgment appealed from was rendered May 4, 1917; appellants’ motion for new trial was overruled May 7,1917;. the appeal was perfected May 22, 1917; the transcript in the cause was filed in this court on August 17, 1917; and the motion of ap-pellees to affirm the case for the reasons stated was filed April 22, 1918. During all this time the appellants, although they as indicated by the affidavits filed by them in support of their contention that they have been deprived without fault on their part of a statement of facts, were put upon notice of facts which made it their duty to take legal steps to compel the immediate preparation of a transcript of the testimony, relied upon the repeatedly broken promises of the official stenographer to prepare such transcript. They never made application for a mandamus to compel the preparation of a transcript of the testimony, nor did they prepare or attempt to prepare a statement of facts under the provisions of article 2068 of the statute. The most appellants did, it seems, beyond requesting the preparation of the transcript of the testimony, was to write a letter to the official stenographer on January 29, 1918, threatening to resort to mandamus proceedings against him unless such transcript was prepared and filed by the 10th day of February, 1918. This letter failed of results, and yet appellants did nothing more thereafter than to continue, as'they formerly had done, to request the stenographer to prepare the transcript of the testimony.

We do not concede that “on account of the great volume of testimony taken in the cause and the length of time to try the same it was impossible for appellants or their counsel to prepare a proper statement of facts from memory.” Before the days of official stenographers counsel were able from their recollection of the facts proven on the trial of ■eases to “prepare a reasonably accurate statement of such facts,” and we are not prepared to say they cannot do so now. At any rate we think appellants should not be excused from at least making such statement of facts as they believed to be correct and from pre■senting it to opposing counsel for approval or rejection. Clearly the showing made is wholly insufficient to authorize this court to reverse the judgment of the trial court, because of the failure of the stenographer to prepare a transcript of the testimony.

Is it apparent upon the face of the record that the trial court committed such fundamental error in the trial of the case as requires a reversal in the absence of a statement of facts? Appellants contend it is, for that the court admitted in evidence over the objection of appellants the testimony of Mrs. L. E. Brown, a subscribing witness to the will offered for probate, taken in the county court and transcribed by the stenographer taking ■the same, which, according to the transcript of the testimony offered, had never been subscribed by the witness nor sworn to by her.

The rule established by the decisions of the Supreme Court of this state upon the question is:

“That in the absence of a statement of facts the rulings of the trial court in admitting and excluding the evidence will not be revised, unless it manifestly appears from the bill of exceptions and the record that such ruling is erroneous, and that it caused injury to the party complaining.” Railway Co. v. Lochlin, 87 Tex. 467, 29 S. W. 469; Railway Co. v. Edwards, 75 Tex. 334, 12 S. W. 853; Lockett v. Schurenberg, 60 Tex. 610; McCarty v. Wood, 42 Tex. 39; Jones v. Cavasos, 29 Tex. 428; Blackwell v. Patton, 23 Tex. 670; Fulgham v. Bendy, 23 Tex. 64.

If it should be conceded that the admission of the testimony in question was erroneous, that alone is not, in the absence of a statement of facts, sufficient to authorize a reversal of the case. To warrant such a disposition of the appeal it must not only appear from the statement contained in the bill of exceptions taken to the introduction of the evidence that the evidence was inadmissible, but that appellant was prejudiced by its introduction. The language used in McCarty v. Wood, supra, in announcing'the rule just stated, and which is quoted with approval in Railway Co. v. Edwards, cited above, is that;

“To reverse the judgment, in the absence of a statement of facts, on such grounds (the improper ■ admission or exclusion of evidence), this court should ordinarily be able to see, not only that' the court had erred, but that such error must with reasonable certainty have produced a substantial injury to the party in his cause. An abstract error upon a point of law applicable to the evidence is not enough. It should appear manifestly to have been a wrongful error in reference to the cause of action or defense.”

If the testimony admitted or excluded waa merely cumulative or ancillary to the main facts in proof, to such an extent only as that it could not be reasonably supposed to have influenced the verdict of the jury, its admission should not cause a reversal of the case, and whether it was of that character cannot be determined in the absence of a statement of facts. It does not appear that the subject-matter of said testimony was not covered by other testimony which stood undisputed. In Torrey v. Cameron, 74 Tex. 187, 11 S. W. 1088, the court remarked that, if the appellant brings up a record'which shows the proceedings only in part, every reasonable presumption will be indulged in favor of the court’s ruling, and the ease will not be reversed unless it appears that upon no possible state of the case could the ruling be upheld. In the early case of Fulgham v. Bendy, supra, it was sought to reverse the judgment of the trial court because of charges given, and refused and the exclusion of certain tes-' timony. In disposing of the questions raised the Supreme Court held that, since there was no statement of facts in the record by which it could be determined whether charges given and refused were pertinent or were mere abstractions, and where, for the want of such statement, it cannot be seen how far the case was affected by the exclusion of testimony, neither the giving nor refusing of the charges nor the exclusion of the testimony can form any ground for the reversal of the judgment. There is nothing in the bill of exceptions reserved to the admission of the testimony complained of or in the record sent to this court that enables us to determine that such testimony necessarily controlled the finding of the jury or caused injury to appellants, and the ruling cannot be revised. In Railway v. Lochlin, supra, the trial court admitted evidence over objection of the appellant, and the court said:

“But, even if the reasons given by the court are not sufficient to sustain a ruling, yet it may be that upon the whole evidence the ruling was correct, and this court will not decide a question of this character to the detriment of the party recovering, except upon a full view of the facts.”

There was, as shown by bills of exception, other testimony admitted which appellants claim constituted fundamental error, but there is less reason for the conclusion that the trial court committed such error in the admission of that testimony than there is for the conclusion that the admission of the evidence mentioned and discussed constituted that character of error.

Believing that in the state of the record sent to this court we would not be warranted in disturbing the judgment of the district court, the same is affirmed.

Affirmed.

On Motion for Rehearing.

We have carefully examined the motion of appellants for a rehearing, and believe no good reason is thehoin given for a change of the disposition heretofore made of the appeal. We take occasion, however, to state, in connection with that portion of our original opinion relating to the efforts made by appellants to secure a statement of facts, and in which it is said that the most appellants did, beyond requesting the preparation of the transcript of the testimony, was to write, a letter to the official stenographer on January 2S, 1SXLS, threatening to resort to mandamus proceedings against him unless such transcript was prepared and filed by the 10th day of February, 1918, and that this letter failed of results, it appears from a letter of the stenographer in reply to the letter referred to in the opinion, and which was attached to a motion made by appellants in this court to postpone the submission of the case and place it at the heel of the docket, that said stenographer stated to counsel for appellants that it would be impossible to file the transcript of the evidence by the 10th day of February, 1918, but that it would be filed not later than the 1st day of April, 1918. It also appears by the affidavit of appellants’ counsel attached to said motion for a postponement of. the submission of the case as stated that he relied upon said letter, and confidently believed that said transcript would be prepared and ready by April 1, 1918. It further appears from the affidavit of appellants' counsel that for some time prior to AiDril 1, 1918, said stenographer, with the approval of the trial court, was absent from the state engaged in private work. These matters were considered in rendering our original opinion, but they were not regarded either alone or together with the other -facts shown ás sufficient to warrant a reversal of the case, because appellants had failed to secure a statemtmt of facts.

Believing the appeal has been properly disposed of, the motion for rehearing is overruled.
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source: Caselaw Access Project

author: DEVY, J.

license: Public Domain

text:
    REED & REED v. McKEE et al.
    (No. 2000.)

    (Court of Civil Appeals of Texas. Texarkana.
    June 13, 1918.)
    1. Judgment ⅞»375 — Default Judgment-Vacation.
    _A party, who is prevented from making a valid defense by misrepresentations or fraud or misconduct of the opposite party, unmixed with negligence on his part, may have the judgment vacated after term of court at which rendered.
    2. Judgment <g=>393 — Vacation.
    On petition to vacate judgment and enjoin enforcement, it is the court’s duty to determine the rights of the parties to a judgment on the pleadings and evidence, and it is error to enjoin enforcement of the judgment without a hearing.
    Appeal from Titus County Court; J. W. Tabb, Judge.
    Action by Reed & Reed against Mrs. N. J. McKee and others. Judgment for defendants, and complainants appeal.
    Reversed and remanded.
    The appellants, who were practicing attorneys, sued the appellees for the value of alleged legal services rendered in the prosecution of a civil action in the district court. The appellees, defendants below, did not make answer to the suit and did not appear - on the call of the case for trial, and a judgment by default was entered in favor of the plaintiffs on May 22, 1917. An execution issued on the judgment on June 16, 1917, and was levied on real estate owned by N. J. McKee. Then on July 13, 1917, the said defendants filed a petition setting up the former suit and the default judgment and alleging certain misrepresentations on the part of the plaintiffs that solely prevented the defendants from appearing and making a defense to the suit. The defense, as alleged, was:
    “That they (defendants in the original suit) do not and did not owe the defendants (plaintiffs in judgment in the original suit) five hundred dollars, nor did they agree to pay five hundred dollars to defendants, but that said contract was based on a contingency that never happened If -the contract was made.”
    The petition prayed for injunction restraining the enforcement of the execution and for general relief. The appellants answered by demurrer, general denial, and specially averring that valuable legal services were rendered under contract to do so. The case was tried to the court without a jury, and upon the finding of misrepresentation as alleged there was judgment entered perpetually enjoining the enforcement of the judgment.
    S. P. Pounders, of Mt. Pleasant, for appellants. Rolston & Brown, of Mt. Pleasant, for appellees.
   DEVY, J.

(after stating the facts as above).

It is the rule that a party who is prevented from making a valid defense by misrepresentations or fraud or misconduct of the opposite party, unmixed with negligence or fault on his part, may have tho judgment vacated after the term of the court at which the judgment was rendered. Plummer v. Power, 29 Tex. 7; Burnley v.. Rice, 21 Tex. 171. And under this rule, in case the court may be authorized to vacate the judgment, it is the duty of the court to determine the right of the parties to a judgment on the pleadings and evidence, for the purpose of vacating the original judgment is- to allow the defendants to present their defense to the suit'. But here the court perpetually enjoined the judgment and put an end to any relief to the plaintiff on the original cause of action without determining the merits of the suit. And according to appellees’ own evidence, the appellants were entitled to a judgment in some amount for legal services.

It is believed the court erred in perpetually-enjoining the enforcement of the judgment sued on and in not determining the rights of the plaintiffs to a judgment under the evidence. It is suggested that the appellees’ petition should be amended so as to have the proper prayer for relief. The effect of the prayer as it stands is for perpetual injunction only, though the petition set up all the facts on which the appellees base their claim: for relief. ⅛

The judgment is reversed, and the cause remanded for a new trial.
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author: HODGES, J.

text:
    HOME INS. CO. OF NEW YORK v. McCLARAN et al.
    (No. 2001.)
    (Court of Civil Appeals of Texas. Texarkana.
    June 20, 1918.)
    Insurance c®=3165 — Eire Insurance — Location oe Property.
    Policy insuring carriages against fire, “all while contained in the one-story metal roof, iron-clad building,” at a certain address, did not render the insurer liable for damage to a carriage while in different shop undergoing repairs.
    Error from Harrison County Court; W. B. Strength, Judge.
    Action by R. L. and T. A. McClaran against the Home Insurance Company of New York. Judgment for plaintiffs, and defendant brings error.
    Reversed and rendered.
    Thompson, Knight, Baker & Harris and Will C. Thompson, all of Dallas, for plaintiff in error. Chas. Carter, of Marshall, for defendants in error.
   HODGES, J.

In December, 1916, the defendants in error were engaged in the livery business, and held a policy of insurance which covered their vehicles and harness and live stock. On-December 10th of that year one of the carriages was destroyed by fire while at a shop on different premises for the purpose of being repaired. This appeal is from a judgment in favor of the defendants in error for the value of the carriage.

The only question here presented is, Was the property covered by the insurance while away from the premises described ,in the policy? The following are the only provisions of the policy material to that issue:

“The Home Insurance Company of New York. No. 2823. Amount, §1000.00. Rate, §4.50. Premium, §45.00.
“In consideration of the stipulations herein named and of forty-fiv.e & No./ioo dollars premium, does insure L. S. Hawley & C. J. Cocke for the term of one year from the eighth day of May, 1916, at noon, to the eighth day of May, 1917, at noon, against all direct loss or damage by fire, except as hereinafter provided, to an amount not exceeding- one thousand dollars to the following described property while located and contained as described herein, and not elsewhere.
“Texas Form No. 36. Loss Payable Clause.
“It is agreed that any loss or damage ascertained and proven to be due to the assured under this policy shall be held payable to L. S. Hawley and C. J. Cocke, as interest may appear, subject, however, to all the terms and conditions of this policy.
“Attached to and forming part of policy No. 3825 of the Home Ins. Co. of N. Y., issued at its Marshall, Texas, Agency, dated 9/28/1916.
R. P. Littlejohn, Agent.
“Texas Form No. 4⅞.
“This policy covers pro rata on each of the following items to the amount of §1,000.00. “Mercantile Stock F'orm, with Three-Fburths Value Clause.
“§1,000.00 on their twenty top buggies, including harness not exceeding §50.00 on each outfit.
“§1,145.00 on their two carriages, including harness, not exceeding §572.50.
“§300.00 on their surries, including harness, not exceeding §60.00 on each.
“§240.00 on their four hacks, including harness, not exceeding §60.00 each.
• “§75.00 on their carryall, including harness, all while contained in the one-story, metal roof, iron-clad 'building, situated at No. 110-114 South Bolivar St. in Marshall, Texas. File No., 190.”

A fair construction of this language shows an intent to limit the risk to the time when the property ’was on the premises described. The hazards of that kind of insurance, like that on household furniture, are governed by the risks attending the buildings in which the articles are kept: That fact furnishes a wholesome reason for the restriction written in the policy.

The judgment is reversed, and judgment here rendered for the plaintiff in error.


author: LANE, J.

text:
    BEAVERS v. SUPREME HOME OF ANCIENT ORDER OF PILGRIMS.
    (No. 7612.)
    (Court of Civil Appeals of Texas. Galveston.
    June 26, 1918.)
    Trial <3=^388(1) — Failure to File Findings and Conclusions.
    Where, by the pleadings and evidence, issues of fact are raised, failure of the trial judge after due request to file findings of fact and conclusions of law, as required by Vernon’s Sayles’ Ann. Giv. St.-1914, arts. 1989, 2075, is reversible error.
    Error from Harris County Court; Murray B. Jones, Judge.
    Suit by Robert Beavers against Supreme Home of Ancient Order of Pilgrims. Erom judgment for defendant, plaintiff brings error.
    Reversed and remanded.
    Fred R. Switzer, of Houston, for plaintiff in error. Ross & Wood, of Houston, for defendant in error.
   LANE, J.

This suit was brought by Robert Beavers, plaintiff in error, against Supreme Home of Ancient Order of Pilgrims, an insurance society for colored people, incorporated under the laws of the state of Texas. The cause was submitted to the court without a jury, upon the evidence adduced. Upon such evidence the court rendered judgment for the defendant in error. To this judgment Robert Beavers excepted and thereafter perfected his appeal to this court.

As shown by appellant’s bill of exceptions, filed within the time allowed by law, plaintiff in error in due time requested the court in writing to prepare and file his findings of fact and conclusions of law. The court failed to prepare and file his findings of fact and conclusions of law as requested by plaintiff in error, as shown by his bill of exceptions as follows:

“Be it remembered that in the above entitled and numbered cause on the 5th day of July, 1917, and during the term of this court at which the judgment was rendered for the defendant in the above entitled and numbered cause and prior to the adjournment of said term of court, the plaintiff by his attorney of record filed with the clerk of this court among the papers in said cause a written motion and demand on behalf of the plaintiff, that the court and the judge thereof prepare and file with the clerk of said court his findings of fact and Conclusions of law respectively in said cause. That the said motion and demand was presented to the court and •called to the attention of the court and the judge thereof in open court on the said 5th day of July, 1917. That the said term of court adjourned the 4th day of August, 1917. That the court and the judge thereof failed to comply with the said motion and demand and failed to prepare or file with the clerk of the court any findings of fact or conclusions of law in this case during said term of court, or within ten days after final adjournment of the term of this court at which the said cause was tried and judgment entered. And that no findings of fact or conclusions of law have to this date been prepared by this court or the judge thereof, or filed with the clerk of this court in this cause.
“To which several acts and omissions of the court and the judge thereof the plaintiff desires to except, and here now tenders this his bill of exception, and prays that the same be taken, approved and signed by the court as his bill of exceptions, and that the same be ordered filed as a part of the record in this cause. The foregoing bill of exception has been examined, found correct, and is hereby signed and approved and ordered filed as a part of the record in this cause. This 11th day of Sept. 1917. Murray B. Jones, Judge of the County Court at Law of Harris County, Texas.”

No statement of facts was prepared or filed.

Tbe contention of plaintiff in error is that tbe court committed reversible error in failing and refusing to prepare and file bis findings of fact and conclusions of law. This contention must be sustained. From the issues as made by the pleadings, it is evident that several issues oí fact were raised by tbe evidence, and when there has been a seasonable demand made for findings of fact and conclusions of law and none are filed, and where no statement of facts is filed, tbe judgment against tbe complaining party, who requested the filing of such findings,' will be reversed and the cause will be remanded. Vernon’s Sayles’ Civil Statutes, arts. 19S9 and 2075; Wandry v. Williams, 103 Tex. 191-194, 124 S. W. 85; Sutherland v. Kirkland, 134 S. W. 851; G., C. & S. F. Ry. Co. v. Bracken, 180 S. W. 285; Scroggins v. Lumber Co., 138 S. W. 789; Buckner v. Davis, 129 S. W. 639, and authorities there cited.

The right to the findings of fact and conclusions of law is a statutory right, and a refusal of the trial judge to file the same, after seasonable request has been made therefor by the losing party, and when such refusal or failure probably deprives the appellant of the proper presentation of the case on appeal, as is the situation in this instance, constitutes reversible error.

For the error pointed out, the judgment of tbe trial court is reversed, and the cause is remanded.

Reversed and remanded.
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author: WILLSON, O. J.

text:
    CONSUMERS’ LIGNITE CO. v. JAMES.
    (No. 1964.)
    (Court of Civil Appeals of Texas. Texarkana.
    April 24, 1918.
    Rehearing Denied May 9, 1918.)
    1. Master and Servant <§=41(5) — Wrongful Discharge — Exemplary Damages.
    Generally an employé suing for unwarranted discharge as breach of contract cannot recover exemplary damages.
    2. Master and Servant <®=»3'9(1) — Pleading.
    An employé suing for wrongful discharge as breach of contract, who failed to plead expenses incurred in effort to secure other employment, could not recover such expenses, though testimony showed the amount thereof.
    3. Master and Servant <©=341(1) — Wrongful Discharge — Measure of Damages.
    An employé suing for breach of contract of employment may recover difference between contract salary and amount paid him by the employer, plus other amounts earned during the term.
    Appeal from Wood County Court; R. E. Bjc@eman¿ ,Judge.
    Action by William. S. James against the Consumers’ Lignite Company. Judgment for plaintiff, and defendant appeals.
    Reformed and affirmed.
    In his petition appellee, plaintiff in the court below, alleged that he was employed by appellant to work for it as a bookkeeper for a period of not less than one year from December 1, 1915, “at a salary of $1,000 pel* year, payable in twelve equal monthly installments at the end of each month.” He then alleged that appellant on June 25, 1916, in violation of its contract and without excuse for so doing, summarily discharged him, and refused thereafterwards to make the monthly payments it had agreed to make to him, whereby he was damaged in the sum of $416.65. Appellee further alleged, as a basis for exemplary damages which he sought to recover otf appellant, that:

      “His summary dismissal by defendant was intentional and willful and without just cause of complaint. That he requested it why he was thus dismissed so that he might be able to clear and rectify any misunderstanding or misapprehension on defendant’s part, and explained to defendant that he was financially embarrassed and that it would be difficult and uncertain whether he could obtain other employment of a like kind and character, all of which defendant knew; but that defendant ignored his request and refused to assign any reason why he was thus discharged. That defendant’s management had been changed, and one George L. Speer hud assumed the duties as general manager of defendant’s business, and plaintiff verily believes and alleges as a fact that said manager favored other employes over plaintiff and wanted to cast him out simply and alone because he was employed by the predecessor manager of defendant. That said defendant, through its said manager George L. Speer, thus acted toward the plaintiff intentionally for the purpose of damaging him and refused to assign any reason why it had discharged him in order - that he could not get other employment of a similar character in the vicinity in which he was thus working, thereby causing plaintiff to seek similar work in other localities and at distant places, .and thus did defendant seek a system of ‘freezing out’ plaintiff and placing him beyond this jurisdiction where he could not conveniently file suit against it for damages. As a result of defendant’s said acts, plaintiff was compelled to borrow money in order that he might get out and secure other employment. That he was not acquainted in this community and did not know whether he could successfully borrow money to maintain himself while he was seeking other employment. That defendant well knew his situation and resorted to the aforesaid scheme to defraud plaintiff and injure him, and did injure him, and by reason of its intentional and malicious acts it damaged him in the sum of $500.”
    In its answer appellant specially excepted to the petition so far as it was for the recovery of exemplary damages, and charged that appellee himself breached the contract, in that:
    “He failed,. refused, and neglected to properly perform his duties,” and “was inefficient and incompetent and failed and refused to carry out the directions and instructions of his superior officers in the discharge of his duties, but insisted that he could not be directed how to work, but would do his work as he chose and would only work such hours as he wanted to.”
    The appeal is from a judgment in accordance with the verdict of a jury, in appellee’s favor, against appellant, for $185 actual and $190 exemplary damages.
    Jones & Jones, of Kerrville, for appellant. W. W. Camphell, of Houston, for appellee.
   WILLSON, O. J.

(after stating the facts as above).

The assignments predicated on the action of the trial court (1) in overruling appellant’s exception to the petition so far as it was for a recovery of exemplary damages, (2) in instructing the jury, on conditions specified, to find in appellee’s favor for such, damages, and (3) in refusing requested special charges to find against appellee on his claim for such, damages, will be sustained. It did not appear from the allegations in the petition, or the testimony heard, that the case was within any exception to the general rule which denies a right of recovery of exemplary damages for the breach of a contract. 3 Elliott on Contracts, § 2124; Railway Co. v. Shirley, 54 Tex. 125; Burnett v. Edling, 19 Tex. Civ. App. 711, 48 S. W. 775; Tel. Co. v. Luckett, 60 Tex. Civ. App. 117, 127 S. W. 856; Ins. Co. v. Ross, 170 S. W. 1062.

The contention that the judgment for $185 as actual damage is excessive is bup-ported by the record, unless appellee was entitled to recover on account of expense incurred by him iu the effort h.e made to secure employment he finally obtained. It appears from Ms petition that he did not seek a recovery of such expense. There was' therefore no basis in his pleadings for a recovery on that account, and none should have been awarded him even, if the amount of such expense had sufficiently appeared from the testimony. It was shown that two months after appellee ceased to work for appellant at $83.33 per month he began, and thereafterwards for longer than a year continued, to work for other parties at $90 per month. He admitted he was indebted to appellant in the sum of $21.48 at the time he ceased to work for it. The $568.27 paid,him by appellant for six months and twenty-five days’ work, added to the $285 paid him by bis new employers for three months and five days’ work, made a total of $853.27 received by him for his services for the year covered by his contract with appellant. That amount, deducted from $1,000, the amount appellant agreed to pay him for the year’s work, left $146.73 as the difference between the sum he was entitled to demand and receive of appellant and the sum he did receive for the year’s work. Tire judgment, it seems, should have been in his favor for said sum, of $146.-73 less the $21.48 he owed appellant; that is, for the sum of $125.25. It will be reformed so as to award him a recovery of only said sum of $125.25, and as so reformed will be affirmed.
      <§=3For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PRENDERGAST, J. MORROW, J.

text:
    ALLEN v. STATE.
    (No. 4912.)
    (Court of Criminal Appeals of Texas.
    Feb. 20, 1918.
    On Motion for Rehearing, June 26, 1918.)
    Embezzlement <§=o44(6) — Evidence—'Wrongful Appropriation.
    In a prosecution for embezzlement of money given by the prosecuting -witness to defendant to purchase án automobile’, evidence held to show that such money was used for the purchase of the machine and not appropriated to defendant’s own use.
    Prendergast, J., dissenting.
    Appeal from Eistrict Court, Ellis County; F. L. Hawkins, Judge.
    Frank Allen was convicted of embezzlement, and h'e appeals.
    Reversed and remanded on rehearing.
    Tom Whipple, of Waxahachie, for appellant. E. ‘B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was indicted in four counts. Only two of them were submitted. Hence it is unnecessary to state those not submitted. In one submitted, appellant was charged with theft as bailee of an automobile; in th'e other, for the embezzlement of $150. He was convicted under th'e latter and assessed the lowest punishment. Most of the testimony .as to the material facts was sharply contradicted, but the jury and the judge of the lower court believed the incriminating facts proven by the state and disbelieved the exculpatory evidence which might have been sufficient to authorize an acquittal, or a misdemeanor conviction.

Mrs. Annie Richardson, a married woman whose husband was away, tried to buy from Mr. Taylor an automobile at the price of $350. She had only $150 in cash, and wanted to pay that and give a mortgage on the machine to secure the $200 in monthly payments of $25. She and Taylor consulted a lawyer, wh'o advised against such a trade because Mrs. Richardson was a married woman and could not give a valid mortgage. Thereupon this proposed trade fell through. Mrs. Richardson then got in communication with appellant and she says he thereupon agreed to buy th'e car for her; she to furnish him $150 to make the cash payment, and he to use that to jiay the cash payment and give his notes and mortgage for the $200 payable in $25 monthly payments. She swore, in substance, that as her agent and employé for that purpose she on that date drew out of the bank and handed to him $150 in cash, and h'e agreed to buy the car for her and pay her $150 as a cash payment thereon. He denied this. He said that she did not turn him over $150 for that purpose, but that she handed him $90 only, and that it was: in substance then agreed between them that $65 of that money was in payment to him by her of that amount which, he claimed, she then owed him, and that he then so appropriated $65 of it himself. She swore that she did not owe him one cent, and handed him the $150 for the purpose stated by her, and for no other, and that he did buy the car for her, and in substance delivered it to her, and that it was her car. He swore that he did not buy the car for her, but bought it for himself, and that it was his car and not hers at any time; that he never paid her money for it, nor delivered the car to her as hers. It was; established as a fact that, about 10 days a(fter appellant bought the car, he sold it back to Mr. Taylor for $140 cash, and the surrender of his notes without Mrs. Richardson’s knowledge or consent, kept the $140 and refused to pay her back her $150 or any part thereof. Each side introduced more or less testimony tending to support their respective contentions.

The jury evidently believed his contention to the extent that he did not pay her $150 on the car nor buy the ear for her, but bought it for himself, and it was his and not hers, for the jury acquitted him of th'e theft as bailee of the car. The jury as evidently believed her testimony and that supporting her that she turned over to Mm $150 as her agent and employé to buy said car for her and pay that much' of her cash therefor for they convicted him of the embezzlement of said $150, or at least more than $50 of it. Among other things, she swore that he told her he lost the $150 she handed him in a crap game at Ft. Worth. He denied this. Which was true was a question for the jury. From the state’s testimony, which' it seems somewhat preponderated, the evidence was sufficient to sustain the verdict. It being peculiarly a question to be solved by the jury, we cannot disturb th'e verdict. The court gave a full and apt charge, submitting every issue raised by appellant in his favor which was in no way objected to.

Under the circumstances, we cannot do otherwise than affirm the judgment which is ordered.

On Motion for Rehearing.

MORROW, J.

The evidence failing to sustain the conviction for embezzlement of money, the motion for rehearing should be granted.

Mrs. Annie Richardson negotiated with Mr. Taylor for the purchase of an automobile. The terms of sale, namely, $150 cash and $200 in notes payable in monthly installments of $25 each, secured by a mortgage on the property, were agreed upon. Taylor, after consulting his attorney, declined to make the sale and take the note of Mrs. Richardson, because he was advised that she being a married woman could not legally secure him. Subsequently, in conversation with Mrs. Rich-ardsion, appellant agreed to help her get the car and fixed the notes.

She testified that, pursuant to this agreement, she drew from the bank $150, which she handed to appellant, Who was standing near the door of the bank. Appellant at once bought the ear from Taylor, paying $15i> cash and executing his note for $200 payable in monthly installments of $25 each and secured by a mortgage on the car. The property was at once put under the control of Mrs. Richardson, she telephoned the garage, and it was sent to her. She used it for some days, placed her number upon it, and registered it in her name. Appellant and others taught her to drive it. He told her to be careful or she would not have it long — would tear it up. While it was in her possession, he borrowed it from her for a specific purpose with the definite statement that he would return it to her at a certain hour the same day. He failed to return it, but made use of his possession to sell it back to Mr. Taylor, canceling the note and receiving $140 from him. Mrs. Richardson placed her claim against appellant in the hands of an attorney for the recovery of the car, and in the alternative to recover the money she had turned over to appellant with which to buy it.- Appellant’s testimony was to the effect that he did not buy the car for Mrs. Richardson, but on his own account. That at the time she claimed to give him $150 she gave him but $90, $65 of which she owed him, and the remainder she. left with him to prevent it being borrowed from her. He used such, money as she did deliver to him in paying $150 on the car, supplementing it, he says, with other funds of his own.

Under the indictment and the charge of the court, the verdict of the jury and the conviction rested upon the proposition that appellant diverted the money delivered to him by Mrs. Richardson as her agent to his own use. To convict him the state assumed the burden of proving that Mrs. Richardson delivered him money for a specific purpose, and that he diverted it therefrom and appropriated it to his own use. If there was no agency, there could be no embezzlement of the money. Whatever sum of money she placed in his possession, according to the undisputed evidence, was used in purchasing the automobile. This use of it was in accord with the instructions which the state claims that Mrs. Richardson gave to the appellant. If her money came into his possession by virtue of his employment as an agent or employs of Mrs. Richardson, the purpose of the agency or employment was the delivery of the money tot Taylor in part payment for the automobile. From every viewpoint of the state, Mrs. Richardson, furnished the money to buy the automobile under an agreement in advance that it should become her property. In law it became her property, and in fact it was put under her control, in her possession, and recognized by her and appellant as her property. Appellant borrowed it, coming in possession of it as a bailee, and under article 1348, P. G., may have been guilty of theft of the automobile. He is not shown by the record to have been guilty of embezzlement of the money.

It is the opinion of the writer that the motion for rehearing should be granted, the affirmance set aside, and the judgment of the lower court reversed and the cause remanded.

PRENDERGAST, J., dissents.
      <g=x>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PRENDERGAST, J.

text:
    PAYNE v. STATE.
    (No. 5095.)
    (Court of Criminal Appeals of Texas.
    June 26, 1918.)
    1. Criminal Law @=>939(2) — New Tbial —■ Diligence.
    Defendant, arrested on the 13th and tried on the 28th of the same month, failed to show diligence entitling him to new trial, where he had no process issued for absent witnesses until three days before trial.
    2. Criminal Law <®=958(4) — New Trial — Affidavits of Absent Witnesses.
    New trial for newly discovered evidence is properly denied, where defendant failed to produce affidavits of absent witnesses on the hearing of the motion more than a month after conviction.
    3. Weapons <S=ol7(4) — Caeeying of Pistol ON OE ABOUT PERSON — EVIDENCE.
    Evidence held' to sustain conviction of defendant for unlawfully carrying a pistol on or about his person.
    4. Weapons <®=U3 — Carrying Pistol — Defense.
    If at time defendant carried his pistol he had reasonable grounds for fearing an unlawful attack upon his person and the danger was so imminent as not to* admit of arrest of person about to make such attack, defendant should be acquitted.
    5. Weapons @=⅛3 — Carrying Pistol — Defense.
    If defendant believed at the time he carried pistol that he or his family were in danger of serious bodily injury, he had a right to carry pistol, provided there was insufficient time to have the party about to make the unlawful attack arrested.
    6. Criminal Law 1091(9) — Trial — Request for Instructions — Time.
    Bills to refusal to give requested charges were insufficient, where they failed to show that charges were presented to or acted upon by court before it charged jury.
    7. Weapons <®==>17(6) — Instructions.
    Where uncontradicted evidence showed that defendant carried pistol not only when he was in dance hall but back and forth to his home and when he took a lady home from the hall, charge that defendant had the right to carry pistol on premises (dance hall) over which he had control was inapplicable and properly refused.
    8. Criminal Law <©=>783½ — Instructions— Excluding Evidence from Consideration.
    Requested charge to disregard defendant’s rudely displaying pistol in dance hall was properly refused although defendant was not charged with rudely displaying pistol; evidence being part of res gestae of his carrying pistol as charged.
    Appeal from Hardin County Court; W. S. Parker, Judge.
    J. S. Payne was convicted of unlawfully carrying a pistol on or about Ms person, and appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., ior tbe State.
   PRENDERGAST, J.

Appellant was convicted of unlawfully carrying a pistol on or about bis person.

He made a motion for a continuance because of tbe absence of four witnesses, one of whom was bis wife. Tbe prosecution against bim was on an indictment by tbe grand jury. He was arrested on February 13tb. Tbe term of court at wbicb be was tried convened February IStb. Pie was tried on February 28th. lie bad no process issued for bis absent witnesses until February 25th, less than three days before he was to be tried. None of these witnesses were subpoenaed, except perhaps bis wife. He was convicted on February 28th. His motion for new trial was not beard until April 12th following. He in no way produced tbe affidavit of any of bis absent witnesses to the effect that they would testify what be claimed they would. Under tbe circumstances, no diligence was shown to procure bis witnesses; hence the court correctly overruled bis motion for a continuance. Tbe testimony of bis wife, even if she would have sworn what be claimed she would, bad no bearing on whether or not be carried a pistol on bis person on tbe occasion charged.

The uncontradicted proof, and also tbe testimony by appellant himself, showed that on tbe night of January .19, 1918, be armed himself with a pistol, having it concealed in his pocket, and took bis wife to a dance. Tbe distance from bis residence to tbe dance ball is not given, but it must have been some distance. While in tbe dance ball he suddenly drew bis pistol from bis pocket and shot out several of tbe lights of tbe dance ball. After he had been at tbe dance ball for some time with his pistol, be and bis wife took one of tbe young lady attendants of tbe dance some hundred yards to her residence, returned to tbe dance ball, and began dancing again. Tbe evidence docs not make it certain whether be shot out tbe lights before be took the young lady home or afterwards, probably afterwards. Tbe shooting out of tbe lights by bim broke up tbe dance. He then took bis wife home from tbe dance and returned to the dance ball. The testimony makes it certain that be carried bis pistol from the time before be first went to the dance until be finally returned home with bis wife.

He claimed that be was carrying bis pistol on this occasion to protect himself, because about dark that night be bad been told by different parties that some threats against bim bad been overheard, and that be carried bis pistol to protect himself.

Tbe court in a correct charge in accordance with tbe statute instructed the jury that, if at tire time be carried bis pistol be bad' reasonable ground for fearing an unlawful attack upon bis person, and tbe danger was so imminent and threatening as not to admit of the arrest of tbe person about to make such an attack upon legal process, to acquit bim. In another paragraph be instructed tbe jury that, if appellant believed at the time be carried tbe pistol be or bis family .were in danger of serious bodily injury, then be bad tbe right to carry tbe pistol, and in tbe event they so believed to acquit bim, provided be bad not had sufficient time to have tbe party arrested about to make such unlawful attack if they were known to bim. No objection was made to tbe charge at all. Hutchins v. State, 51 Tex Cr. R. 339, 101 S. W. 795; James v. State, 51 Tex. Cr. R. 633, 103 S. W. 934; Mayfield v. State, 75 Tex. Cr. R. 104, 170 S. W. 308; Woodroe v. State, 50 Tex. Cr. R. 213, 96 S. W. 30.

Appellant has three bills to the refusal of the court to give- three separate charges requested by bim. Neither of tbe ■bills show that they were presented to, or acted upon, by tbe court, before be charged the jury or before tbe argument began or be-. fore tbe jury retired. Each of them are wholly insufficient on this account. But if tbe bills bad shown they bad been presented at tbe proper time as required by tbe statute ■and tbe decisions, then neither of them should have been given. One of them undertook to tell the jury that be bad a right to carry a pistol on premises of his own or over which be had control. This was based on his testimony that tbe dance ball belonged to bis employer and that be bad charge and control thereof. This charge was inapplicable because tbe unquestioned proof, as stated, shows that be not only carried tbe pistol while be was in the dance ball and shot out ■the lights, but that be carried it back and forth with bim from bis home to tbe dance ball, and after be bad reached tbe dance ball be took a young lady to her home some hundreds of yards away from tbe dance ball, and ■that be bad tbe pistol with bim all this time.

Another one of bis charges attempted to instruct tbe jury to disregard any of tbe evidence of bis rudely displaying a pistol in the dance ball. While be was not charged with rudely displaying a pistol, tbe evidence of bis shooting out tbe lights was a part of tbe res gestrn of bis carrying his pistol, and hence that charge was inapplicable. Tbe other charge was as to bis right to carry tbe pistol in tbe dance ball to keep peace and protect bis family, because tbe dance ball was under bis control and management as tbe agent of bis employer.

Tbe judgment is affirmed.
      ©^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DAVIDSON, P. J.

text:
    WRIGHT v. STATE.
    (No. 5070.)
    (Court of Criminal Appeals of Texas.
    June 12, 1918.)
    1. Criminal Law ⅞=»1092(7) — Appeal—Matters Reviewable.
    Bills of exception not filed within the time allowed cannot be considered.
    2. Criminal Law <®^>1056(1) — Appeal—Matters Reviewable.
    A charge not fundamentally defective will not be considered on appeal where no exception was taken, and it was attacked for the first time in the motion for new trial.
    •8. Gamins @=98(6) — Permitting Use op House — Sufficiency of Evidence.
    Evidence held to sustain a conviction of permitting the use of a house for the purpose of gambling with dice.
    Appeal from District Court, Galveston County; Robt. G. Street, Judge.
    C. Wright was convicted of keeping and being interested, in a house for the purpose of being used as a place to bet, wager, and gamble with dice, etc., and he appeals.
    Affirmed.
    T. C. Turnley and Y. M. Clark, both of Galveston, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

The indictment contains two counts. In the first appellant was charged with keeping and being interested in keeping a house for the purpose of being used as a place to bet and wager and gamble with dice, etc., and where people resort for the same purpose, and in the second that he knowingly permitted the property to be kept for such purposes.

The bills of exception cannot be considered, inasmuch as they were filed at a time when -not authorized. The court entered an order authorizing the filing of bills of exception within 30 days after adjournment of court. Court adjourned on the 30th of March. The bills of exception were not filed until the 17th of May, and the record contains no order of extension of time in which to file such bills.

There was no exception taken to the charge. It is for the first time attacked in the motion for new trial. The charge is not as clear, and explicit as it should be, yet in view of the fact no exception was reserved and no special charge requested, the defects in the charge are not of such a fundamental nature as to require consideration without an exception being taken at the time the statute requires.

It is also contended that the evidence is not sufficient to sustain the conviction. We are of opinion that this contention is not sustained by the record. Appellant rented, it seems, a two-story house, the upper rooms of which were rented by him to others, he keeping the lower story. From the evidence it would be gathered that gambling was carried on exclusively in the upper part of the house. The evidence also shows that people resorted there, and gambling was carried on, at least by the use of dice. This had been going on for some time. The number of people gathering there varied. On one occasion a raid was made upon the house by the officers and 36 different persons were taken in custody. Appellant was not present when this occurred, and the evidence indicates he was not present at the different times when the gambling was in vogue. The evidence, however, is to the effect that he' was aware that gambling was being carried on and that crowds gathered for such purpose in these upper rooms. It was also shown that in the lower part of the house ho had an electric piano which was used to the annoyance of the neighbors at times people were assembled in the upper rooms. Complaint was made and the officers required appellant to cease playing the piano. Under the evidence it seems to us that appellant knew the situation and the conditions in his house, and that he is brought within the terms of the law which denounces a punishment for permitting gambling under the circumstances.

We are of opinion, therefore, this judgment on this record should be affirmed; and it is accordingly so ordered.


author: DAVIDSON, P. X

text:
    MITCHELL v. STATE.
    (No. 5096.)
    (Court of Criminal Appeals of Texas.
    June 28, 1918.)
    1. Criminal Law <⅝^>368(3) —Assault with Intent to Murder — Res Gestae.
    In prosecution for assault with intent to murder, testimony of third person that accused’s mother, shortly after the- offense, stated that accused had told her that he did not intend to live with his wife, the assaulted party, and that ac-, eused’s mother asked the wife to say that the shooting was an accident, was not admissible as res geste, but was hearsay.
    2. Witnesses <g=»380(8) — Impeaci-im ",nt — Own Witness — Cross-Examination as to Matter Not Subject of Direct Examination.
    Where accused’s mother, not having referred to the matter on direct examination, denied, on cross-examinatiqn by the state, that she had made statements to another, in absence of accused, as to what accused had told her, it was not permissible to impeach her by testimony of the other person that such statements were made.
    3. Criminal Law <®=^>595(1) — Continuance-Absent Witness.
    Continuance should have been granted for absence of witness who would have testified that the assaulted person said that the shooting was accidental.
    Appeal from District Court, Fannin County; Ben. II. Denton, Judge.
    Cleo Mitchell was convicted of assault with intent to murder, and he appeals.
    Reversed and remanded.
    R. T. Lipscomb, of Bonham, for appellant. E. B. Hendricks, Asst. Atty. Gen., for tbe State.
   DAVIDSON, P. X

Appellant was convicted of assault to murder, and allotted a term of ten years in the penitentiary.

The assault was committed upon his wife. The sharply contested issue of the case was whether appellant shot his wife intentionally, • or accidently or unintentionally. There were* three eyewitnesses—defendant, his wife, and Ms brother Charley. Appellant’s contention was that it was an accident. His brother testified substantially in support of appellant’s theory. Repeating the testimony of the various witnesses would serve no practical purpose. The record contains several bills of exception. One of the bills shows that the shooting caused a great deal of turmoil about the house, where there were several others besides the three mentioned, and appellant was very much disturbed and “scared.” Shortly after the shooting, he ran out in the yard and called to some neighbors who lived a short distance away. They came to the house. After reaching there they had a conversation with the mother of defendant in his absence. The state was permitted to show by these witnesses:

“That Mrs. Nettie Mitchell, the defendant’s mother, stated to the witness that the defendant told her that he did not intend to live with Reba, his wife, and that Mrs. Nettie Mitchell asked Reba in the presence of the witness to say that the shooting was an accident.”

The judge in his explanation refers to the statement of facts for an elucidation of this matter, and then recites the various objections urged by counsel to the introduction of this testimony.

The statement of facts and record . will show that Mrs. Mary ICemper was used with reference to this matter as a state’s witness. It will also show that defendant ’was not present, heard none of these statements, which therefore, in our judgment, were not a part of the res gestae; Mrs. Nettie Mitchell, who was a very material witness for the appellant, but upon this question having been made a state’s witness, it not having been brought out nor referred to by defendant. It is also shown in this connection that Mrs. Mitchell was by the state asked if she made these statements to Mrs. Kemper, which she denied. The state then was permitted to prove by Mrs. Kemper the above-quoted statement imputed to Mrs. Mitchell. We are of opinion this was hearsay and not admissible. If it had been shown as original testimony, by the mother, Mrs. Mitchell, that her son had made these statements, it would have had a serious bearing upon the case. It was not Mrs. Mitchell testifying, or any other witness- testifying, to what defendant said, but it was Mrs. Kemper testifying to what Mrs. Mitchell said the defendant said, which was denied by Mrs. Mitchell.

Testimony of this sort cannot be gotten before the jury in this way, for any purpose, even to impeach, and in support of this we cite Wells v. State, 43 Tex. Cr. R. 452, 67 S. W. 1020; Casey v. State, 49 Tex. Cr. R. 174, 90 S. W. 1018; Branch’s Crim. Raw, § 871. This was not a permissible way of impeaching this Witness. What has been said with reference to this bill of exceptions will apply to some of the other bills which will be understood by the trial court without discussing them. The same question is raised by such bills.

A bill of exceptions also was reserved to the court’s charge. The rejection of this testimony upon another trial renders it unnecessary to discuss the charge of the court in this connection. It will not be given. The’ court’s charge was erroneous, as is shown by the decision in Green’s Case, 49 Tex. Cr. R. 653, 98 S. W. 1059, and Ballard’s Case, 71 Tex. Cr. R. 587, 160 S. W. 716. Other cases might be cited, but the same error should be avoided upon another trial in regard to charging as to the testimony of other witnesses. It is unnecessary to discuss those. It is covered by what has been said. See cases cited.

The defendant filed an application for continuance. Without stating the various methods and means used to obtain the testimony of the absent witness, we are of opinion that the case would have to be reversed on, account of the absence of this witness. The statement is quite lengthy with reference to these matters, and we deem it unnecessary to go into a detailed statement of the matter. His testimony would have been, to the effect that he talked with the wounded woman very shortly after the shot was fired, when she was lying in bed and suffering intensely and barely able to talk on account of the condition of the wound and the blood in her throat and mouth, and that she told him the shooting was accidental and unintentional. This is the substance of it. We would feel impelled to reverse this case for the absence of this testimony under the circumstances, but it is referred to so that the witness may be present and testify upon another trial.

For the reasons indicated, the judgment is reversed, and the cause remanded.
      cg^oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BUCK, J.

text:
    STEWART et al. v. PATTERSON.
    (No. 8839.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    April 6, 1918.
    Rehearing Denied May 4, 1918.)
    1. Courts <S~=»37(3) — Jurisdiction—Waiver.
    Since jurisdiction over subject-matter cannot be conferred even by express consent, objection may be raised by plaintiff at any stage of the proceeding.
    2. Courts <§j=o122 — Jurisdiction — Title to Bands—* ‘Title’ ‘ ‘Possession.”
    Petition alleging that defendant was interfering with plaintiffs’ right of possession of land sufficiently showed jurisdiction in the district court, under Const, art. 5, § 8, as amended September 22, 1891, and Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1705, par. 4, and articles 1712 and 1913, since “title” to lands is the means whereby the owner has possession, and “possession” means the actual control of the property and is prima facie evidence of and one of the elements of title, but is not title within such sections (citing Words and Phrases, Second Series, Title; see also, Words and Phrases, Eirst and Second Series,’Possession).
    3. Equity <§=>39 (1) — Relies1—Retaining Jurisdiction.
    Jurisdiction having been obtained by reason of suit for injunction, the court may retain Jurisdiction to adjudicate all the issues properly involved.
    4. LANDLORD AND TENANT <§=>320(5, 6) — Renting on Shares — Crops—Conversion— Measure oe Damages.
    Where tenant set up share-cropping contract, and alleged that landlord and a thfrd person conspired to oust him of the crop, it was not errpr to award him as damages the value of his share of the crop, without deducting the cost of harvesting, since a conspiracy includes a corrupt motive for which penalty may be inflicted.
    5. Appeal and Error <§=>1073(1) — Harmless Error — Jud gment.
    Where testimony conflicted as to amount due plaintiff, but some testimony warranted allowance of an additional amount approximately equal to defendant’s admitted counterclaim, error in failing specifically to allow the counterclaim or in failing to recite in the judgment the finding as to the counterclaim was harmless.
    Appeal from District Court, Tarrant County; R. B. L. Roy, Judge.
    Action by W. P. Stewart and another against J. P. Patterson. Prom the judgment rendered, plaintiffs appeal.
    Affirmed.
    W. B. Paddock, P. M. Bransford, and Theodore Mack, all of Pt. Worth, for appellants. McLean, Scott & McLean, of Pt. Worth, for appellee.
   BUCK, J.

Suit was instituted by appellant W. P. Stewart against the appellee May 29, 1914, in the District Court of Tarrant county. Plaintiff alleged that he was in possession since January 1, 1914, of a certain tract of land situated in Tarrant county, which had growing thereon a crop of oats about ready for harvesting, and that plaintiff was ready, expecting, and desirous of beginning the harvesting of said oats at the earliest practicable moment that the land should become sufficiently dry to permit the same; that the defendant had interfered, and was threatening to further interfere, with plaintiff’s employes working on said premises, and had ordered them to desist and refrain from doing the work they had been instructed to do on said premises, and with threats of violence and by orders given by assumed authority had instructed them to leave said premises and to do no further work thereon; that defendant had threatened plaintiff with violence while on said premises and had sought to intimidate him, and thereby prevent him from cutting and harvesting his said crop of oats. It was further alleged that plaintiff feared that defendant would attempt by violence to interfere further and prevent the harvesting of said oats, and that the crop would be partially or wholly lost or destroyed by excessive rains and other causes, unless defendant was restrained by the court. It was further alleged that defendant was insolvent, .“and that it would be wholly impossible for petitioner to collect from him by law any damage for his wrongful acts, trespass, and interference,” and an injunction was prayed for. Upon submission to the court of the petition for injunction the writ was issued.

Defendant, Patterson, filed his answer, alleging:

That he had made and entered into a valid lease contract with H. S. Anderson, the owner of the described property, and in said rental contract it was provided and agreed by said parties that defendant was to have the use, occupation, and enjoyment of said tract of land for one year beginning on the - day of October, 1913, and that in consideration therefor defendant would pay unto said Anderson a rental of two-fifths of the oat crop which defendant was to plant on said land, and in pursuance of said agreement defendant entered into possession of said land, “and did sow an oat crop thereon, and thereafter and prior to the filing of this suit the said H. S. Anderson and W. P. Stewart, plaintiff herein, conspired and confederated together to dispossess defendant and to take his oat crop which was then growing on said land, and which promised to make a good crop, and that in pursuance of said conspiracy upon the part of said Anderson and said Stewart they thereafter claimed and pretended to this defendant that said land had been rented by the said Stewart, and the said Anderson claimed and pretended that he, the said Anderson had rented said lands to the said Stewart before he had rented same to defendant, and the said Stewart claimed and pretended that he, the said Stewart, had rented said land from the said Anderson before Anderson had rented the same to defendant, and defendant here avers that each and all of said acts and claims were false pretensions, and that the same were made in pursuance and in consummation of said scheme and said conspiracy,” etc.

Defendant further alleged that the crop harvested by said plaintiffs, to which defendant was entitled to a two-fifths interest, consisted of the following and of the respective value shown: 975 bales of baled oats of the value of 40 cents a bale, of a total of $390; 600 bushels of oats of the value of 60 cents a bushel, of the total value of $360— making a grand total of $750. Wherefore defendant prayed that Anderson be cited, and that on final hearing defendant have judgment against said Anderson and said Stewart, jointly and severally, for the sum of $450, and all costs of suit, etc.

Anderson filed his answer, pleaded his privilege to be sued in Dallas county, the county of his residence, pleaded a misjoinder of cause, etc. He further denied the allegations of conspiracy contained in the cross-plea of the defendant, Patterson, and denied that he had entered into any contract with Patterson as claimed by him for the possession and use of the land. Other pleadings were filed, but we think sufficient has been stated to present the issues involved, except that it may be proper to state that plaintiff’s petition alleged that if defendant was not restrained it would cause “your petitioner great and irreparable loss, the amount of which, because of the circumstances and because of the conditions and character of the crop, your petitioner is unable and it would be impossible to estimate or ascertain,” and further it was prayed that defendant be “restrained from interfering in any way or manner with your petitioner’s possession or the right of possession to said crop and to said premises.”

Trial was had February 15, 1917, and the cause was submitted to the jury on special issues. The jury found: (1) That Anderson did agree with Patterson that the latter should have the use of the 66-acre tract of land for the purpose of planting and harvesting the oat crop thereon for the year 1914; (2) that such agreement was made October 14, 1913; (3) that Anderson did not agree with Stewart that the latter should have the use of said land for the purpose of planting and harvesting an oat crop thereon; (4) that Stewart and Anderson had conspired together to dispossess Patterson and to take the oat crop which was growing on said land, for the purpose of appropriating the same to their own use and benefit, and of depriving said Patterson of his rights in said crop.-; (5) that said Anderson and Stewart, in pursuance of such conspiracy, did dispossess said Patterson and did appropriate to their own use and benefit the crop produced on said land during the period of time in controversy in this suit; (G) that the reasonable market value of the baled oats and threshed oats produced on said land during the year 1914 was 25 cents per bale for the baled oats and 40 cents per bushel for the threshed oats; (7) that Anderson advised Patterson that he had leased the said property to Stewart, said advice being by means of letters dated October 14 and 27, 1913; (8) that the total expense of harvesting the said croi) of oats was $217.82. Upon this verdict the court entered judgment that Patterson recover from Stewart and Anderson the sum of $263.65, with interest thereon from date of judgment at 6 per cent, per an-num, together with all costs, and that plaintiff recover nothing as against Patterson, and that the injunction theretofore issued be dissolved. It was further decreed that H. S. Anderson take nothing by reason of his cross-action against Patterson. In explanation of this last portion of the judgment it should be stated that in his answer Anderson alleged that defendant Patterson owed him the sum of $31 for oats, and that he owed Patterson for work in the sum of $15, and that it was agreed between them that Patterson should pay to Anderson the sum of $16, which he had not done, and Anderson prayed for judgment in the amount claimed to be owing by Patterson. From this judgment Stewart and Anderson have appealed.

Appellants present as fundamental error the claim:

That tlie trial court was without jurisdiction of the cause “for the reason that there was no allegation in the petition as to the value of the use and occupancy of the land and of the crop that was growing thereon with the harvesting of which it was alleged that the defendant, Patterson, was interfering. Nor did the cross-action or plea in reconvention .asserted by the defendant, Patterson, against the plaintiff Stewart and against Anderson confer jurisdiction upon the district'court, for the reason that under the allegations thereof only the sum of $459 was claimed by the defendant against the plaintiff Stewart and against Anderson.”

It is a peculiar situation when plaintiff, who Ras invoked tbe jurisdiction of a court to grant him relief and lias been cast in tbe sujt, reverses bis attitude, and denies tbe jurisdiction of bis chosen tribunal to award him tbe relief for which he prayed, and, in this ease, partially received. However, since the jurisdiction over the subject-matter of the suit may not be waived and cannot be conferred even by express consent (Masterson v. Ashcom, 54 Tex. 324-327), and may be raised at any stage of the proceeding, with or without seasonably preserved assignment (Shropshire v. Dunson, 32 Tex. 467; Lane v. Doak, 48 Tex. 227; Chrisman v. Graham, 51 Tex. 434), we will direct our attention to tbe question thus tardily presented. Article 5, § 8, of the state Constitution, as amended September 22, 1891, gives tbe district court original jurisdiction “of all suits for trial of title of land and for the enforcement of liens thereon,” and further provides that the district court “shall have general original jurisdiction over all causes of action whatever for which a remedy or jurisdiction is not' provided by law or this Constitution.” Article 1705, par. 4, Vernon’s Sayles’ Tex. Civ. Stats., provides that the district court shall have original' jurisdiction “of all suits for the trial of title to land and for the enforcement of liens thereon.” Article 1712 provides:

“Subject to tlie limitations stated in this chapter, the district court is authorized to hear and determine any cause which is, or may be, cognizable by courts, either of law or equity, and to grant any relief which should be granted by said courts, or either of them.”

Article 1913, Vernon’s Sayles’ Tex. Civ. Stats., gives to the judges of the district court the authority, either in term time or vacation, to hear and determine all applications for writs of injunction. We are of the opinion that plaintiff’s/ petition contained jurisdictional allegations sufficient to confer jurisdiction on the trial court when it alleged that defendant, Patterson, was interfering and attempting to interfere with plaintiff’s, right of possession of the land described. Title to lands is defined as “the means whereby the owner of lands hath a just possession of his property.” 3 Bouvier, p. 206; 4 Words and Phrases, 924. Title does not necessarily mean a fee interest, but covers all the lessor estates in land. Snodgrass v. Copple, 203 Mo. 480, 101 S. W. 1090-1096. “Possession” means actual control of property by physical occupation; while “title” is the means whereby one holds possession of his land. Possession is prima facie evidence of and one of the elements of title. 4 Words and Phrases, 924. If it could be reasonably contended that the district court did not have jurisdiction by reason of the question involved being one affecting the title to land, concerning which we have no doubt; yet we think the district court would have jurisdiction under article 1712, Vernon’s Sayles’ Tex. Civ. Stats., and article 5, § 8, of the Constitution. Gamel v. Smith et al., 3 Tex. Civ. App. 22, 21 S. W. 628; Voightlander v. Brotze, 59 Tex. 286; Handel v. Elliott, 60 Tex. 145; Bounds v. Kirven, 63 Tex. 159.

Jurisdiction having been obtained by reason of the injunctive proceedings, the court was authorized to retain jurisdiction to adjudicate all the issues properly involved. Savings & Loan Co. v. Peck, 20 Tex. Civ. App. 111, 49 S. W. 160.

Complaint is made that the court applied an improper measure of damages, and that the judgment rendered is excessive. The evidence showed that there were 875 bales of baled oats produced on the land for the year 1914, which the jury found was of the market value of 25 cents a bale. Stewart testified that he threshed 553 bushels of oats, while one of appellee’s witnesses testified that there were 600 bushels of oats threshed, lacking “a little bit.” This witness, J. D. Rice, testified:

“Now, whether it was a bushel and a half or 2 bushels that it lacked being 600, I don’t remember, but I know it lacked just a few bushels of being 600.”

Tire jury'' found the oats were worth 40 cents a bushel at the thresher. If we take Stewart’s testimony as the basis, the threshed oats would have been worth $221.20, making the entire crop of the value of $439.95. Three-fifths of this would have been $203.97. The judgment rendered was for $263.65. Hence it is evident that the court did not deduct from the value of the crop, or from Patterson’s tnree-fifths of the crop, the cost of harvesting, which the jury found was $217.82. Appellants assign this as error. In Tignor v. Toney, 13 Tex. Civ. App. 518, 35 S. W. 881, it was held that, where the rental , contract is such that the landowner and ^ropper are tenants in common, and the fcrmer, after the crops are planted, wrong-fl&Uy dispossesses the latter, and himself completes the cultivation, the tenant may, after the <?rpps are matured, sue for his individual share\and for partition, or, if such share cannot bd\ had, for its value, and held that the rule applied that personal property illegally or tortióusly held can be retaken by the rightful owner in any new form in which it may be put by the labor of the defendant, without reference tb the increase of value by such change of form, unless 'the taking was not willful, but innocently done, as by mistake. In Fagan v. Vogt, 35 Tex. Civ. App. 528, 80 S. W. 664, it was held that one tenant in common suing to recover for wrongful conversion by a eotenant of his interest in a growing crop cannot be charged with the cost of gathering such crop. In Crews v. Cortez, 102 Tex. 111, 113 S. W. 523, 38 L. R. A. (N. S.) 713, the Supreme Court, on certified question, after reviewing the two above-cited cases, and also the ease of Waggoner v. Moore & Stevens, 45 Tex. Civ. App. 308, 101 S. W. 1058, in which this court had concluded that the proper measure of damages to be applied was the reasonable market value of a crop belonging to the tenant, less what he might have earned after the breach of the contract, plus the expense of planting, cultivating, gathering, and marketing the crop, held that, where a tenant of land is wrongfully dispossessed by the landlord after the crops have been planted and partly gathered, he may recover as damages the value of his contract share of the matured crop, less such compensation as could reasonably be obtained in other employment during the remainder of the term, and such 'expense for labor outside that of himself and family as he would have incurred in maturing and harvesting the crop; in other words, that the penalizing rule applied to a conversion, invoked iu Fagan v. Vogt and Tignor v. Toney, supra, should not.be applied to a mere breach of executory contract on the part of the landlord. In this case the court said:

“It may be that the trial court proceeded upon the theory laid down in the cases of Tignor v. Toney and Fagan v. Vogt, supra. We have not found any other authority for tire application of that doctrine to such cases as this where the” wrongful limitation “was the breach of an executory contract for the raising of crops;, the breach occurring.when the crops were immature. The authorities cited above from other states lay down substantially the measure of damages as we have defined it, applied in cases where the crops were growing as well as in those in which they had not been sown when the breaches occurred. The doctrine applicable where the property of one is taken and converted by another by a willful trespass and without bona fide claim of right does not furnish the rule for cases like this, where the wrong done consists in the breach of a contract under which the crops are to be produced. The lights of the parties are founded on the contract, and the wrong .done is compensated for when the injured party is allowed the full value which he would have produced, less the expense of which he has been relieved.”

But in the instant case defendant, Patterson alleged more than a mere breach of an executory contract on the part of Anderson and Stewart. He alleged a conspiracy entered into by and between these two to dispossess him, Patterson, and to take his oat crop which was then growing on the land, anil that in pursuance and furtherance of this conspiracy these two claimed and pretended that Stewart had entered into a contract with Anderson for the rental of this land prior to- the date of contract claimed by Patterson. Hence we are of the opinion that the trial court did not improperly apply the rule which visits a penalty upon him who willfully and wrongfully, without reason or excuse, or claim of mistake, converts the property of another to his own use and benefit. In Lee Tung v. Burkhart, 59 Or. 194, 116 Pac. 1066, the Oregon court held that a conversion of property is an act of malfeasance, and not a mere nonfeasance; a positive wrong, and not the mere omission of what is right. See 1 Words and Phrases, p. 1030 et seq. The jury found that Stewart and Anderson entered into a conspiracy to dispossess Phtterson and to take his oat crop. The court properly instructed the jury that a conspiracy was an agreement entered into by two or more persons for the purpose of doing a wrongful act. A “conspiracy,” it is said, includes, as an element a corrupt motive. United States v. Moore (C. C.) 173 Fed. 122. If Anderson, the landlord, acting alone, had breached the contract of rental which the jury found he had made with appellee, it is probable that the measure of damages as applied in the Crews v. Cortez Case, supra, would here obtain, but when he entered into a conspiracy with another he is responsible and liable for the things done and the acts committed in the pursuance of such conspiracy, and is liable for the consequences reasonably flowing therefrom, and we think, the same measure of damages would apply to him as to his co-conspirator.

It is further urged that the judgment is excessive, because Anderson was entitled to a credit of $16, under his plea that in the settlement made theretofore with Patterson the latter owed him and'promised to pay him said amount. In the first place, it is questionable whether s,aid $16 which defendant Anderson alleged was agreed upon between him and Patterson could have been pleaded as an offset against Patterson’s claim for damages for the tort alleged, which question, however, we do not decide. Moreover, Patterson testified that he got from Anderson only 60' bales of oats, and that he was to give him 20 cents a bale therefor. In his pleadings Anderson admitted that the' work done by Patterson for him was of the value of $15, and Patterson testified that Anderson had never paid him for that work. If not, and Patterson’s testimony be accepted, as the court and jury had a right to do, Patterson’s claim against Anderson as to this matter would have exceeded Anderson’s claim against him. But appellants urge that the jury found in answer to a special requested issue that Patterson owed Anderson for baled oats bought in the fall of 1913 $31. This finding does not seem to have been entered in the judgment as were the other findings, and no objection seems to have been made to the judgment on account of such omission, but if the- testimony of Patterson’s witness J. I>. Rice as to the number of bushels of threshed oats was believed by the court, and no request for a finding by the jury as to the number of bushels harvested were made, the court had the right to find, and we may impute to him the finding, that there was in fact practically 600 bushels of oats. This would increase the value of the crop alleged to have been converted to the extent of some 45 or 47 bushels, which at 25 cents per bushel have amounted to $16, lacking a few cents. Hence we conclude that no material and prejudicial error is shown as to this matter.

All assignments are overruled, and the judgment is affirmed.

Affirmed.
      ©^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <§=>Eor other eases see same topic and KEY-NIJMBER in all Key-Numbered Digests and Indexes


author: CONNER, C. J.

text:
    LANCASTER et al. v. SETTEE.
    (No. 8869.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    April 27, 1918.)
    1. New Trial <§=>108(4) — Grounds—Newly Discovered Evidence.
    After verdict against a railroad company for personal injuries to a pedestrian, struck by a loose door when the tram passed him, newly discovered evidence that the pedestrian was attempting to board the train when injured required a new trial.
    2. New Tbial <§=>105 — Grounds—Newly Discovered Evidence.
    After verdict against a railroad company for personal injuries to a pedestrian, struck by a swinging door as the train passed him, newly discovered evidence that plaintiff’s witness stated, in plaintiff’s hearing, without denial, that plaintiff was trying to jump the train and fell, was more than impeaching testimony, and required a new trial.
    3. Railroads <§=>397(2) — Injury to Pedestrians — Evidence—Admissibility.
    In suit for personal injuries to pedestrian, struck by swinging door on passing train, testimony for plaintiff that witness had seen loose and swingmg car doors at other times and on other cars was admissible, to show that it was not unusual or improbable for a car door to be loose and swinging.
    Appeal from District Court, Parker County; F. O. McKinsey, Judge.
    Action by Raymond Settle, by next friend, J. J. Cummins, against J. D. Bancaster and another, receivers of the Texas & Pacific Railway Company. From judgment for plaintiff, defendants appeal.
    Reversed and remanded.
    H. C. Shropshire, of Weatherford, for appellants. Hood <& Shadle, of Weatherford,, for appellee. Á

   CONNER, C. J.

This appeal is from a judgment on the verdict of a jury in fqivor of Raymond Settle for the sum of $4210.15 as damages for personal injuries. 'T.tip suit was predicated upon allegations to tlae effect that, while Raymond Settle was walking along a well-used path on the sor.th side of the track of the Texas & Paelfie/Uailway Company, he was struck on the. back and shoulders by a projecting timber or other hard substance extending from a passing freight train of the Texas & Pacific Railway Company, at the time being operated and controlled by the defendant receivers, their agents or servants. It was alleged that Raymond Settle was knocked down by such projecting timber or substance, and thrown under the cars, which ran over > and crushed one of his arms, so as to necessitate its amputation below the shoulder. It was alleged that Raymond 'Settle was walking at safe and reasonable distance from said track and passing train, and that he would have received no injury, but for the negligence of the agents and servants of defendants operating the train with the dangerous projection extending therefrom.

There was evidence in behalf of appellee, supporting the theory presented by his pleadings, to the effect that Raymond Settle, while walking along the path mentioned, was knocked down by a loose and swinging door on one of the passing cars, and the judgment is sought to be supported on the theory that the appellants were guilty of negligence in permitting the train to be operated at the place of the accident with such a defective door. There was evidence in behalf of appellants tending to show that the ear was a foreign car; that the train was made up of foreign cars at Et. Worth and there inspected; that at the time of its departure from Et Worth no defective or loose car doors were discovered; that the train proceeded to Aledo, near where the accident occurred, where the train was again inspected, and where, as some of the operators of the train testified, no defective and swinging doors were observed. There was testimony in behalf of appellee, however, to the effect that there was a loose car door seen on one of the cars at Aledo, and one or more of ap-pellee’s witnesses testified that as the train proceeded west from Aledo, at points before or beyond where Raymond Settle was injured, what appeared to be a loose or swinging car door was observed. The evidence on the trial was to the effect that the path along which Raymond Settle testified that he was walking was¡ well defined and had long been in use by persons traveling along the railroad. Raymond Settle testified to the effect that, while he was walking in a westwards direction a short distance west of Aledo, he observed the approach of the train Lthat injured him, and that he first stepped town and away from the railroad track into ¾⅛ pit or bar pit of the slight fill there existing, and that after the engine and one or two of the cars had passed him he again approached and resumed his walking along the pathway beside the track, very shortly after which he was struck by something projecting from the train, and knocked down and under the train, which so lacerated one of his arms as to thereafter require its amputation. One W. R. McOurley testified in behalf of appellee, among other things:

“I asked him [Raymond Settle] what hurt him. He said the train hit him;' knocked him down. He said nothing else in regard to the way it occurred, more than he just contended all the time the same thing; ho didn’t know what it was, whether the engine, or a box, or not; something hit him and knocked him down, tie denied getting on the train at the time. He said he was not trying to got on the train.”

H. E. Law testified in behalf of appellants, among other things, that he was engaged in the business of general merchandising at Aledo; that he lived on the south.side of the track and witnessed the accident. He testified:

“I seen this boy coming on down the railroad, and, when this train come on, he crossed over from the north side to the south side of the railroad; and the train came on, and when the engine passed him I seen him looking back, and he made one run along with the train, and he never taken hold of it, and he kind of stopped and looked back, and there was another car coming on, and he put his bundle under his left arm and reached up with his right arm, and just looked to me like, by the time he taken hold of it, it just threw him right back around between the cars; he caught the back end of a car, and threw him right around under there, and I thought he was crushed all to pieces.”

There was also testimony developed in behalf of appellee that possibly Law was in a position that prevented him from seeing the accident as he testified, and the jury, after having received the charge of the court, returned a verdict in favor of appellee.

In the foregoing statement we have only stated such parts of the record and evidence as we think necessary to illustrate our ruling upon appellants’ first assignment of error, under which it is insisted that the court below erred in overruling appellants’ motion for new trial on the ground of newly discovered evidence. In support of this ground of the motion appellants presented the following affidavits:

One by O. G. Emmons, to the effect that his home is in the same block as the home of Eugene Law (the Law who testified in behalf of appellee as heretofore stated); that on the occasion in question he looked up “and saw the young man or boy who was hurt standing right close to the railroad track; he was standing very close to the south rail of the track, and the engine or probably two or three cars had passed him; that immediately on seeing the situation the thought passed through affiant’s mind that the party was going to try to catch the train, and he watched to see what became of him, and he saw him make a move as though he was going to catch the train, or caught at it; he extended his arms as if he were trying to grab the train, and when he caught at the train it threw him loose; it was going too fast, as affiant thought; it did not throw him down at this time, and he made the second grab at the train, and looked as if he fell between the cars.” This affiant further stated in Ms affidavit that the first time he mentioned what he knew was after the case was tried and judgment rendered for the boy. The affidavits of Jim L. McCall, C. H. Underwood, W. R. McCurley, and J. E. Mc-Murray were all presented, all of which were to the effect that there was no obstruction between the point where H. E. Law testified that he was at the time he witnessed the accident and the train where the boy was hurt. The affidávit of John Emmons was presented, and after stating Ms situation at the time, and after stating that he went to where “the boy and McCurley were,” it was further stated “that, as soon as affiant walked up to where the boy and McCurley were, he asked McCurley how it happened, and Mc-Curley replied, ‘He was trying to jump the train and fellthat McCurley made this statement in the presence and hearing of Raymond Settle, and Raymond Settle never denied nor affirmed the truthfulness of the statement.” There were other affidavits fully showing diligence on the part of appellants, and accounting for the reasons why the testimony in the foregoing affidavits was not earlier discovered. These affidavits, however, will not be set out, inasmuch as there seems to be no contest on these points.

It is insisted in behalf of appellee that the newly discovered evidence developed by the foregoing affidavits is but cumulative in character, and only goes in one instance to the impeachment of the witness W. R. McCurley. It is true that the testimony of C. G. Emmons, as disclosed by his affidavit is cumulative or corroborative of that of H. E. Law, who testified in behalf of appellants upon the trial, and hence contradictory of the testimony of W. R. McCurley, who testified in favor of ap-pellee ;.but, while the general rule is otherwise, it cannot be said that in no case will the court grant a new trial for newly discovered evidence that is cumulative or of an impeaching nature. See El Paso Southwestern R. Co. v. Barrett, 46 Tex. Civ. App. 14, 101 S. W. 1025, 121 S. W. 570; Missouri, K. & T. Ry. Co. of Texas v. McGregor, 68 S. W. 712; Ry. v. Forsyth, 49 Tex. 171; Wolf v. Mehan, 57 Tex. 171, 29 Cyc. 911-917. In a note to 29 Cyc. p. 917, we find the following statement of the rule:

“When the newly discovered evidence is additional to some already in the case in support of the same proposition, the probability that such new evidence would change the result is generally very much lessened, so that much more evidence, or evidence of much more value, will generally be required when such evidence is cumulative; but if the newly discovered testis mony, although merely cumulative, is of such a character as to make it seem probable to the court that, notwithstanding the same question has already been passed upon by the jury, a different result would be reached upon another trial with the new evidence, then such new trial should be granted.”

Viewed in the light of such a rule, we 'think the evidence disclosed by the affidavit of O. G. Emmons highly important. It distinctly supports the evidence of Law and the theory of appellants’ defense in this case, and when supported by the additional affidavits to the effect that no obstruction existed to Law’s view at the time of the accident (testimony in behalf of appellee tending to show otherwise), and the evidence of the attending physician that he found no bruises or abrasions on Raymond Settle’s back, raises a strong probability that a different result would be reached upon another trial.

Moreover, the affidavit of John Em-mons to the effect that, while the witness Mc-Curley was at place of injury, he stated that Raymond Settle “was trying to jump the train and fell,” and that this statement was made in the hearing of Raymond -Settle, and that Raymond Settle did not deny the statement, is of a character that goes beyond that of impeaching testimony. If in fact such declaration was made by McCurley in the presence of Raymond Settle, and Raymond Settle failed to deny it, such failure would constitute original evidence, proper for the consideration of a jury in weighing the testimony of Raymond Settle. On the whole, we conclude that the new trial should have been granted, and appellants’ assignment raising this question is sustained.

By appellant’s second assignment the sufficiency of the evidence to establish negligence on appellant’s part, which proximately caused the injury, is raised; but, in view of the fact that upon another trial both pleadings and evidence may be different, we have concluded to pass tMs assignment undetermined, and we announce no conclusion upon that issue.

The seventh to the tMrteenth assignments, inclusive, relate to evidence of witnesses to the effect that at other times and upon other cars they had seen loose and swinging car doors. Objection was made to this testimony upon the ground that negligence in the present case could not be established by showing negligence upon other occasions. The testimony referred to, however, we think was properly admitted as the evident purpose thereof was merely to show that it was not unusual or improbable, as some of appellants’ testimony possibly tended to show, for car doors to be loose and swinging, and that it was possible for such swinging doors to project outward far enough to strike a person walking along a pathway close to a track. Appellants presented no request tqj have the testimony so limited, and, as pr<J) sented, the assignments referred to will -be overruled.

In the sixth assignment of error the seventh paragraph of the court’s charge is complained of, on the ground that the jury were thereby authorized to award plaintiff compensation for loss of time up to the date of trial without sufficient pleading. We think we need not discuss this assignment; inasmuch as this criticism of the charge, for which there is possibly some ground, may easily be avoided upon another trial.

We conclude that there is nothing else that need be discussed, but that for the error of the court in overruling appellants’ motion for new trial the judgment of the court should be reversed, and the cause remanded.

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