text:
    TEXAS-MEXICAN RY. CO. v. REED.
    (Court of Civil Appeals of Texas. San Antonio.
    March 11, 1914.
    Rehearing Denied April 8, 1914.)
    1.PLEADING (§ 34) — DEMURRER—DETERMINATION — PRESUMPTIONS.
    When attacked by general demurrer, every reasonable intendment will be indulged in support of a petition.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 5%, 66-74; Dec. Dig. § 34.]
    2. Appeal and Ebbob (§ 742) — Assignments of Ebbob — Statement.
    The statement contemplated by the rules of the Courts of Civil Appeals cannot be supplied by referring to another assignment or proposition as a statement.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    3. Appeal and Ebbob (§ 742) — Assignments of Ebbob — Statement.
    An assignment of error will’ not be considered where it is not followed by any statement and there is no reference to any page of the record for special exceptions, being contrary to Courts of Civil Appeals Rules 25-31 (142 S. W. xii, xiii), relating to the sufficiency of the statement required, etc.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    4. Trial (§ 392) — Conclusions of Fact.
    The trial judge need not adopt the c6n-clusions of fact and law prepared by a party, so that an assignment of error that it did not do so is bad, as appellant should have attacked the findings if it claimed that the facts did not support them.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 916-919; Dec. Dig. § 392.]
    5. Appeal and Ebbob (§ 742) — Assignments of Ebbob — “Statement.”
    A “statement” following an assignment of error should cull from the mass of testimony the facts relied upon to sustain the assignment; a mere reference to pages of the testimony from which the proper facts may be ascertained not being sufficient.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742. For other definitions, see Words and Phrases, vol. 7, p. 6643.]
    6. Carriers (§ 229) — Live Stock — Action foe Injuries.
    It is not necessary that live stock be put upon the market for sale in order to entitle the owner to recover its impaired value because of negligent injuries, etc., in shipment.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 930, 963, 964; Dec. Dig. § 229.]
    Appeal from District Court, Bee County; F. G. Chambliss, Judge.
    Action by J. P. Reed against the Texas-Mexican Railway Company and others. From a judgment for plaintiff against tbe defendant named and others, it appeals.
    Affirmed.
    Greer & Hamilton, of Laredo, for appellant. Dougherty & Dougherty and H. S. Bon-ham, all of Beeville, for appellee.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes-

   FLY, C. J.

This is a suit for damages to cattle shipped by appellee from Navasota to Hebbronville, Tex., against tbe Houston & Texas Central Railway Company, tbe Galveston, Harrisburg & San Antonio Railway Company; the San Antonio & Aransas Pass Railway Company, and appellant. It was alleged that tbe cattle were delivered to tbe Houston & Texas Central Railway Company at Navasota, Tex., and were transported by it to Houston, thence by tbe Galveston, Harrisburg & San Antonio Railway Company to Beeville, thence by tbe San Antonio & Aran-sas Pass Railway Company to Alice, and thence by appellant to Hebbronville. It was alleged that each company negligently delayed the cattle on sidings and switches; that each roughly handled the cattle, thereby injuring them; that they failed to provide adequate facilities for loading and unloading to rest, water, and feed them. Special damages were set up against the Galveston, Harrisburg & San Antonio Railway Company as tq the handling of the cattle at Victoria. The trial resulted in a verdict and judgment for $2,000, the sum of $500, being apportioned to appellant. Judgment was in favor of the initial carrier.

The petition was not open to attach by general demurrer. When so attacked every reasonable intendment will be indulged to support the pleading. The first assignment is overruled.

The second, third, and fourth assignments of error are grouped, and relied on as propositions in themselves. They are not followed by any statement, but it is said: “For a statement and argument thereunder we rely upon our first proposition, its statement and argument.” Reference to another assignment or proposition is not the statement contemplated by the rules; but, if it were, the statement under the “first proposition” throws no light upon 'these assignments. Nowhere is the statement made that special exceptions were filed, nor is there reference to any page of the record. No attention has been paid to rules 25, 30, and 31 for Courts of Civil Appeals (142 S. W. xii, xiii). The assignments will not be considered.

The fifth assignment of error is submitted as a proposition, but it is so general that it would require a perusal of the whole statement of facts if it was in other respects placed upon a proper basis. It complains that the court did not “adopt as its findings of fact and conclusions of law those prepared and offered by this defendant’s attorneys, in that the same are in accord with the testimony and law of this case.” The court filed conclusions of fact and law, and no attack is made upon them; the contention being that the court should have permitted appellant to prepare the conclusions of law and fact. There is no law requiring a trial judge to adopt conclusions of fact and law prepared by any litigant, and appellant has no cause of complaint because its conclusions were not adopted. If it wanted to insist that the facts were not sufficient, it should have attacked the findings o'f the trial judge. While the assignment of error is insufficient to raise the issue, we conclude that the findings of fact of the trial judge are supported by the statement of facts, and they are adopted as the conclusions of fact of this court.

The sixth assignment of error is not followed by a proper statement. A statement should cull from the mass of testimony the facts relied upon to sustain the assignment. A reference to pages of testimony from which the appropriate facts may or may not be gleaned amounts to no statement at all. There is, however, no merit whatever in the assignment which seeks to question the sufficiency of the evidence to sustain the judgment against it. “If plaintiff intended to pasture his cattle, he was entitled to have the full benefit of their condition as it was when they should have been shipped, and it is not necessary that property should be upon the market for sale in order to entitle the owner to have its impaired value restored by the person causing the injury.” Railway v. Hume, 87 Tex. 211, 27 S. W. 110; Railway v. Stanley, 89 Tex. 42, 33 S. W. 109; Railway v. Word, 51 Tex. Civ. App. 206, 111 S. W. 753; Railway v. Rich, 51 Tex. Civ. App. 313, 112 S. W. 114. The evidence showed negligence in appellant in allowing the cattle to stay in the cars all night at Alice.

The judgment is affirmed.


source: Caselaw Access Project

author: FLY, C. J.

license: Public Domain

text:
    ST. LOUIS, B. & M. RY. CO. et al. v. McDAVITT BROS.
    (Court of Civil Appeals of Texas. San Antonio.
    March 25, 1914.)
    1. Cabbiees (§ 82) — Cabbiase of Goods— DELIVERY.
    The consignee named in a bill of lading must be treated by the carrier as the absolute owner until he has notice to the contrary, and a delivery to the consignee, without such notice, discharges the carrier.
    [Éd. Note. — For other cases, see Carriers, Cent. Dig. §§ 299-315; Dec. Dig. § 82.]
    2. Cabbiees (§ 90) — Sales (§ 296) — Passage of Title.
    Where goods consigned to the purchaser were, on arrival, delivered to another in accordance with the purchaser’s order, there was such a constructive delivery to the purchaser as to bar the seller’s right of stoppage in transitu, which continues until delivery, and he cannot recover from the carrier because it did not collect the purchase price from the person to whom the goods were delivered, as directed by the purchaser.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 331-337; Dec. Dig. § 90; Sales, Cent. Dig. §§ 837-847; Dec. Dig. § 296.]
    Appeal from Cameron County Court; E. H. Goodrich, Judge.
    Action by McDavitt Bros, against the St. Louis, Brownsville & Mexico Railway Company, which impleaded one E. D. Dawson. From a.judgment for plaintiffs against the railroad company, with recovery over by the company against Dawson, the railroad company and Dawson appeal.
    Reversed and rendered.
    Chapin & Brown, of Mission, Claude Pollard, of Kingsville, and Graham, Jones, West & Dancy, of Brownsville, for appellants. J. T. Canales, R. B. Creager, and Ira Webster, all of Brownsville, for appellee.

      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   FLY, C. J.

Appellees sued appellant to recover the value of certain sorghum seed alleged to have been shipped by appellees from Dallas, Tex., to E. Eriedlander, at Mission, Tex. It was alleged that appellant converted the seed “to its own use and benefit, instead of delivering said seed to E. Friedlander, or his order, as it was in duty bound to do; it delivered the same to one E. D. Dawson, without the knowledge or consent of this plaintiff, and without the order, knowledge, or consent of ■ the said E. Eriedlander; because of which said sorghum seed were wholly lost to this plaintiff, to his damage in the sum of $108.50.” In the answer of appellant railway company, it was admitted that the seed had been delivered to Dawson, and it was asked that he be made a party and judgment be rendered in its favor over against Mm. Dawson answered that he had paid for the seed. The cause was submitted to the court, and judgment was rendered in favor of appellees against the appellant railway company for $108.50, and in favor of the latter against Dawson for the same sum. Both of them appealed.

According to the testimony of W. E. Me-Davitt, on or about July 6, 1909, his firm, acting through agents in Dallas, .shipped to E. Eriedlander or order, at Mission, Tex., 35 sacks of sorghum seed; that some time aft-erwards -he learned that the seed had been delivered by the railway company to Dawson, and that Eriedlander had never paid for the seed. McDavitt said that the shipment was what is known as “an open shipment” to Eriedlander. The evidence showed that the seed were ordered by Friedlander for one Miyamoto, a Japanese nurseryman, and he sent an order to the agent of the railway company at Mission to collect the freight charges from Miyamoto and get a check from him for $108.50, and to deliver the seed to him. Dawson obtained an order for the seed from Miyamoto, and they were delivered to him. Dawson paid the freight charges.

The consignee named in a bill of lading must be treated by the carrier as the absolute owner until he has had notice to the contrary, and a delivery to the consignee, without such notice, will discharge the carrier. Hutchinson on Carriers, § 177, and authorities cited in footnote; Railway v. Bank, 100 Tex. 17, 93 S. W. 431. The right ofr¡stoppage in transitu was held by the consignor until the notice had been given by the carrier to the consignee and he had made the carrier his agent to hold the property until its sale. It is not necessary that the goods should have come into the actual possession of the consignee to put an end to the right of stoppage in transitu. Hutchinson, Carriers, § 769. When Friedlander received a notice that the seed had arrived, and wrote the- agent of the railway company that he wanted the agent to -deliver the goods to Miyamoto, there was a constructive delivery of the goods to Eriedlander, and the railway company had performed its contract of carriage. Whether the railway company or the agent was made the agent of the consignee would not matter; the duty of the carrier had been met by the railway company.. Halff v. Allyn, 60 Tex. 278; Elliott on Railroads, § 1543.

The right of stoppage in transitu had undoubtedly been lost when the seed were delivered to Dawson, and Friedlander or Miya-moto was the only person who could copi-plain about the seed being delivered to Dawson. The railway company, or Lehman, its agent, may have acted in bad faith towards Eriedlander in delivering the seed to. Dawson, but that is a matter between them, with which appellees have no concern. If Eried-lander himself or Miyamoto had carried the seed off, appellees would have had no cause of complaint, and, when they were delivered to Dawson, who claimed to have authority from Miyamoto to receive them, no one but the consignee or Miyamoto would have the right or authority to object to the delivery to the person who received the seed. Appel-lees’ right of action against the carrier ceased the very moment that the latter agreed to hold the seed for the consignee. The title to the property passed to Friedlander when it was shipped from Dallas, subject to the right of stoppage in transitu, and, when that right was lost, appellees’ cause of action against the carrier was lost. Greif v. Seligman, 82 S. W. 533.

The notification of Friedlander that the seed had arrived was a delivery to him, and all right that appellees may have had to stop the goods was lost. Railway v. Somerville, 104 S. W. 1072.

The evidence of an order being given by Miyamoto for the seed may not have been the best, although the statement of facts does not show that the order was in writing, as stated in the bill of exceptions, yet it would be a matter of no consequence, because the seed had been delivered to the consignee, and it did not matter whether Miyamoto gave the order or not, so far as appellees were concerned.

The judgment is reversed, and judgment here rendered that appellees take nothing by their suit and pay all costs in this behalf expended.


author: JENKINS, J.

text:
    TEXAS POWER & LIGHT CO. v. BIRD et al.
    (Court of Civil Appeals of Texas. Austin.
    Feb. 4, 1914.
    Rehearing Denied March 18, 1914.)
    1. Appeal and Ebbok (§ 1066)—Review— Haemless Ebbob.
    The submission of an issue not raised by the pleadings, where there is evidence as to such issue which might reasonably have influenced the jury, is reversible error.
    [Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 4220; Dec. Dig. § 1066.]
    2. Masteb and Sebvant (§§ 101, 102)—In-jubies to Servanos-Dtjty op Masteb.
    It is.the duty of an employer, not only to use ordinary care to furnish a reasonably safe place for his employé in which to work, but to use reasonable care to maintain the place of work in such condition.
    [Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 135, 171, 174, 178-184, 192; Dec. Dig. §§ 101, 102.]
    3. Masteb and Sebvant (§ 291)—Injuries to Sebvant—Insteuctions—Applicability to Pleadings—“Maintain.”
    In an action for the wrongful death of a servant, killed by an explosion of steam pipes, the petition, after alleging that the pipes were old, worn, and weakened, averred that the master was negligent in not maintaining the pipes in proper condition, and in failing to repair or replace worn parts, which, in the exercise of proper care, should have been done. Held that, as the expression “maintain” means to keep in proper condition, the petition charged that the master was negligent in failing to keep the place of work in proper condition, and hence, as the necessity of repairs could only have been ascertained by inspection, the petition was broad enough to authorize an instruction on the master’s negligence in failing to inspect the pipes to ascertain the needed repairs.
    [Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 1133, 1134, 1136-1146; Dec. Dig. § 291.

    For other definitions, see Words and Phrases, vol. 5, pp. 4277-4281; vol. 8, p. 7712.]

      4. Appeal and Error (§ 882) — Invited Er-BOB — INSTRUCTIONS.
    In an action for the death of a servant, killed by an explosion of steam pipes, where the jury was instructed at the request of defendant that, if there were latent defects in the appliances furnished which were not known, and could not have been discovered by ordinary care, then it was not liable, defendant could not complain of a charge that it was liable if it failed to use ordinary care in making tests to discover defects, even though the charge was without support in the pleadings; it being in explanation of the one requested by defendant.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 3591-3610; Dec. Dig. § 882.]
    5. Trial (§ 194) — Instructions—'Weight os Evidence.
    A charge, in an action for the death of a servant, killed by an explosion of steam pipes, that, if the pipes were defective, and if the condition could have been discovered by certain tests, and defendant failed to make such tests, and such failure was not the exercise of ordinary care, then defendant was guilty of negligence, was not erroneous as on the weight of the evidence.
    [Ed. Note. — For other cases, see Trial, Cent Dig. §§ 413, 436, 439-441, 446-454; 456-466; Dee. Dig. § 194.]
    6. Evidence (§ 91) — Burden of Proof.
    A party alleging a fact has the burden of proof.
    [Ed. Note. — Eor other cases, see Evidence, Cent. Dig. § 113; Dee. Dig. § 91.] .
    7. Master and Servant (§ 265) — Actions— Burden of Proof — Contributory Negligence.
    In an action for the wrongful death of a •servant, where defendant pleaded contributory negligence, the fact that some of the evidence of contributory negligence was introduced by plaintiffs rdid not alter the rule casting the burden of proof on defendant; a plaintiff having the burden of proving his freedom from contributory negligence only when the facts pleaded show his contributory negligence, and he alleges others to exonerate him.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 877-908; 955; Dec. Dig. § 265.]
    8. Trial (§ 255) — Instructions—Request.
    Unless specially requested, the court need not charge the jury to look to the evidence of plaintiffs, as well as defendant, in determining whether the contributory negligence of a deceased servant, for whose death the action is brought, has been established.
    [Ed. Note. — For other eases, see Trial, Cent. Dig. §§ 627-641; Dec. Dig. § 255.]
    9. Trial (§ 296) — Instructions—Error.
    In an action for the wrongful death of a servant, the failure of the court to charge that, in determining whether deceased was guilty of contributory negligence, the jury should consider the evidence of plaintiffs as well as that of defendant was not error, where the court summarized the acts which defendant claimed showed contributory negligence, and charged that, if deceased was guilty of contributory negligence by reason of such acts, they should find for defendant.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 705-713, 715, 716, 718; Dec. Dig. § 296.]
    10. Witnesses (§ 268) — Cross-Examination —Scope.
    In an action for the wrongful death of a servant, killed by an explosion of steam pipes, where defendant contended that the pipes were not defective, and plaintiffs claimed that rust spots and sand holes, appearing on the broken edges of the pipes, existed prior to the explosion, it was proper cross-examination of defendant’s chief engineer to question him as to what was done with the pipes after the explosion, and his answer, that they were taken in charge by the boiler insurance company, could not be complained of by defendant.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 931-948, 959; Dec. Dig. § 268.]
    11. Appeal and Error (§ 1051) — Review-Harmless Error.
    In an action for the death of a servant, killed by an explosion of steam pipes, the erroneous admission of evidence that it was the general custom in power plants to examine such pipes was harmless, where defendant proved that it was its custom to inspect such pipes.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4161-4178; Dec. Dig. § 1051.]
    12. Evidence (§ 539) — Opinion Evidence-Expert Testimony.
    In an action for the death of a servant, killed by an explosion of a “T” joint in a steam pipe, a witness who was not an expert as to the tensile strength of iron was competent to testify, from his observation and experience with such joints,_ as to the comparative safety of one fastened with bolts and one screwed into the main pipe.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2349-2352; Dec. Dig. § 539.]
    13. Death (§ 57) — Actions—Damages—Elements.
    In an action for the wrongful death of a father, where the petition merely alleged the minority of the children, and that deceased used his wages in their support, the jury, in assessing the damages, might take into consideration the value to the children of the father’s mental and moral training, although there was no evidence as to the training he was capable of giving or had given.
    [Ed. Note. — For other cases, see Death, Cent. Dig. §74; Dec. Dig. § 57.]
    14. Master and Servant (§§ 286, 288, 289)— Injuries to Servant — Actions—Evidence.
    In an action for the wrongful death of a servant, the questions of defendants negligence and of the servant’s freedom from assumption of risk and contributory negligence held, under the evidence, for the jury.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1001, 1006, 1008, 1010-1015, 1017-1033, 1036-1042, 1044, 1046-1050, 1068-1090, 1092-1132; Dec. Dig. §§ 286, 288, 289.]
    Error to District Court, McLennan County; Tom L. McCullough, Judge.
    Action by Mrs. Ruth Bird and others against the Texas Power & Light Company. There was a judgment for plaintiffs, and defendant brings error.
    Affirmed.
    Neff & Taylor, of -Waco, for plaintiff in error. R. H. Kingsbury and E. J. Clark, both of Waco, for defendants in error.

      For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      For other cases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   Findings of Fact.

JENKINS, J.

On August 21, 1912, and prior thereto, plaintiff in error was engaged in the electric light business in Waco, Tex. George Bird was in its employ as night fireman. There were six boilers in the boiler room. There was a main pipe running across tlie boiler room, with which each oí the boilers was connected by a pipe line, through which the steam from the boilers entered the main pipe, and was carried thence into the engine room. About 7 o’clock p. m. on said date an explosion occurred in the pipe line leading from boiler No. 4, scalding Geo. Bird, from the effects of which he died. Said pipe line was connected with the main line by a “T,” which is a pipe in the shape of the letter T, and used to connect three separate pipes. Between the “T” and the main, line, and only a few inches from the “T,” was an automatic valve, the purpose of which was to regulate the flow of steam from the boiler into 'the main pipe. When the steam in the boiler reached a pressure greater than in the main pip'e| the valve opened and allowed the steam to pass over into the main through the “T,” and would close automatically when the pressure was less in the boiler than in the main. There was a screw on the pipe, which, when screwed down, prevented the valve from opening. Oil was used as fuel, and the fire could be started or extinguished by turning the oil on or off. If the valve was working automatically when the temperature of the steam in the boiler reached a sufficiently high point, it pressed through the connecting pipe line into the main line. This was called cutting a boiler in. When' the fire was extinguished, and the temperature of the steam in the boiler became less than that in the main, the valve closed. This was called cutting the boiler out. A boiler could also be cut in or out by means of the screw above mentioned. It was the duty of the fireman to cut boilers in and out as they were needed. A greater number of boilers were used at night than in the daytime on account of the electric lights. On the morning before the explosion George Bird, upon leaving, cut boiler No. 4 out by means of the screw. This was done on account of a leak in the pipe which does not appear to have had any connection with the explosion. Boiler No. 4 was fired by the day fireman before Bird returned to work, and was cut out when'the steam in the boiler reached 140 pounds. The steam pressure in the main at the time of the explosion was 150 pounds. The steam pressure in boiler No. 4 a few minutes after the explosion was 150 pounds. The explosion occurred a few minutes after Bird returned to work. No one knows where he was or what he was doing at the time of the explosion. He was a competent and experienced fireman. It is uncertain whether or not the fire was .extinguished in boiler No. 4 at the time of the explosion. There is no positive evidence as to the cause of the explosion. The evidence might support a finding that it was caused by Bird’s turning the steam in from boiler No. 4 suddenly by means of the screw after it had reached a high pressure in the boiler, though we think the preponderance is against this theory. It might have been caused by .the automatic valve failing to work. It might have,been caused by water hammer in the main line, occasioned by its not being properly braced, or it might have been caused by inherent defects in the mar terial out of which the “T” was made, causing it to leak into sand pits and rust, and thereby become weak. By saying what “might” have caused the explosion, we mean that there was evidence tending to support each of these theories.

There is no evidence in support of assumed risk or contributory negligence of George Bird, except upon the theory that the explosion was caused by his negligence in cutting in boiler No. 4. This theory was submitted to the jury, and they found against it The evidence justifies their finding in this regard. The evidence is sufficient to sustain the finding of the jury that the explosion was caused by the negligence of plaintiff in error, and that such negligence was the proximate cause of Bird’s death.

There was a verdict and judgment for defendants in error, which apportioned the damages among the wife and children of deceased. No complaint is made as to the amount of the verdict and judgment.

Opinion.

Plaintiff in error assigns error on a special charge given at the instance of defendants in error as follows: “If you believe from the evidence that the ‘T’ in question was defective and dangerous in its use, and you further believe that such condition of said ‘T’ could have been discovered by the use of certain tests, and you also find that the defendant failed to use such tests, and that such failure on the part of the defendant was not the exercise of ordinary care, then you are instructed that the defendant, if you so find, was guilty of negligence.”

Plaintiff in error contends that the giving of this charge was error, for the reason that the failure to make tests to ascertain the condition of the machinery was not alleged as a ground of negligence. It is true that the submission of an issue not raised by the pleading, when there is evidence as to such issue which might reasonably have influenced the jury, is reversible error. There was evidence to the effect that the defects, if any, might have been discovered by making certain tests, known as the hammer test and the water test Neither of these tests were made. This evidence might reasonably have influenced the jury in finding against plaintiff in error on the issue of negligence. It remains only to inquire whether the petition was sufficient, in the absence of a special exception, to raise the issue as to the failure of plaintiff in error to make these tests. •

The- petition, after alleging that the lines and connections, including the “T,” were old, worn, and weakened, averred that plaintiff in error -syas guilty of negligence “in not maintaining said lines or piping, and all connections appertaining thereto, in proper condition, and in not repairing or replacing old and worn out parts thereof, * * * which, in the exercise of proper care, * * * should have been done.”

It is the duty of an employer, not only to use ordinary care to .furnish a reasonably safe place for his employs in which to work as originally furnished, but also to use reasonable care to maintain the same in such condition. This, it is alleged, the plaintiff in error did not do, and, in attempting to make proof of this allegation, it was shown, without objection, that certain tests, known as the hammer test and the water test, would probably have enabled the plaintiff in error to discover the defects, if any, in the “T.” To “maintain” means to keep in proper condition; the duty to maintain requires the making of such necessary repairs as were known to be requisite to the safety of employes, or that could have been known to the employer by the exercise of ordinary care. The evidence showed that such ordinary care required inspection; the jury might well have found from the evidence that such inspection, to meet the demands of ordinary care, required the use of the hammer test or the water test, or both. The plaintiff in error evidently understood that the allegation of failure to maintain included the allegation of failure to inspect, as is shown by its answer, wherein it alleges that, “if it failed to use ordinary care in inspecting its machinery, * * * George Bird knew of such failure, and the danger incident thereto.”

We are of the opinion that the allegation of failure to maintain the pipe lines and connections in proper condition includes, by fair implication, a failure to make whatever tests were reasonably necessary to ascertain the condition thereof.

We think that it was not error to give the special charge complained of for the further reason that it was in the nature of an explanation of special charge No. 9, given at the request of plaintiff in error, from which we'quote as follows: “Now, if you believe from the evidence that there were any defects in the appliances so furnished, and that such defects, if any, were so latent that they could not have been known to the defendant by the exercise of ordinary care, and the defendant did not know thereof, and could not have known thereof by the exercise of such care, the defendant would not be liable for any injury resulting in the death of said George Bird.” Whether such defects would have been discovered by ordinary care depended, under the evidence herein, upon whether or not they could have been discovered by the use of the hammer or water tests, or both, and whether the exercise of ordinary care required such tests to be made. The evidence showed that plaintiff in error did nothing to ascertain the existence of such defects, except to make casual visual inspections.

We do not think that this charge is upon the weight of the evidence. It does, not indicate the opinion of the court as to whether or not the “T” was defective, nor whether such defect, if any, could have been discovered by the use of the tests referred to, nor whether the failure to make such tests was negligence. All these are left, for the jury to decide from the evidence. If the jury found all of these issues in favor of the defendant in error, the negligence of plaintiff in error followed as a matter of law, and the court did not err in so informing the jury. Mill Co. v. Wright, 154 S. W. 1171; Railway Co. v. Hall, 138 S. W. 435; Railway Co. v. Farley, 136 S. W. 98.

The second assignment is upon the following portion of the court’s charge; “The burden of proof is upon the defendant to establish by a preponderance of evidence the special matters of defense pleaded by it.” The special matters of defense pleaded by plaintiff; in error were assumed risk and contributory negligence. The contention of plaintiff in error is that, inasmuch as the evidence of the plaintiff alone raised the issue of assumed risk and contributory negligence, it was ■ error for the court to charge that the burden of proof was upon the defendant. It is a rule of law, to which, accurately speaking, there is no exception, that the burden of proving any fact is upon him who alleges it. The burden of proving the absence of contributory negligence may be upon the plaintiff, though contributory negligence is not pleaded by the defendant. But this is where the plaintiff alleges a state of facts which, if not excused, show in themselves that he is guilty of contributory negligence, and then alleges certain other facts which exonerate him from the charge of contributory negligence. Such a pleading is in the nature of confession and avoidance, and to say that the plaintiff must prove the absence of contributory negligence is saying no more than that the burden is on him to prove his case as he has alleged it.

Again, where contributory negligence is pleaded by the defendant, and the evidence is sufficient to establish such negligence, as a matter of law, it is the duty of the court to instruct the jury to find in favor of such plea, whether the evidence came from the plaintiff or the defendant, or both. But the fact that some of the evidence may have come from the plaintiff does not alter the rule of law that the burden of proving contributory negligence rests upon the defendant Railway Co. v. Harris, 103 Tex. 426, 427, 128 S. W. 897; Railway Co. v. Shieder, 88 Tex. 160, 30 S. W. 902, 28 L. R. A. 538.

It might become the duty of the court in certain cases to instruct the jury, when specially requested so to do, that they should look to the evidence of the plaintiff, as well as that of the defendant, in determining the issue of contributory negligence. No such request was made in this case. Nor was there any apparent necessity for such a charge, inasmuch as the jury could not reasonably have come to any other conclusion, if they looked to the whole charge, which it was their duty to do. In other portions of the charge the specific acts of George Bird, which plaintiff in error alleged constituted contributory negligence and assumed risk, and which it is claimed that the evidence of defendants in error tended to establish, were submitted to the jury, and they were told that, if Geo. Bird was guilty of contributory negligence, or assumed the risks by reason of such acts, if any, to find for the plaintiff in error. Railway Co. v. Anglin, 86 S. W. 785; Traction Co. v. Happ, 122 S. W. 613; Railway Co. v. Howard, 96 Tex. 582, 75 S. W. 805.

The third and fourth assignments of error pertain to the following question and answer of P. W. Wonderlich,’ a witness for plaintiff in error, upon his cross-examination:

“Q. What did you do with the ‘T’ immediately afterwards [meaning immediately after the explosion]?” to which the witness answered, “It was taken in charge by the boiler insurance company.” To which question and answer the plaintiff in error objected, and moved the court to exclude said question and answer from the consideration of the jury. Which objection and motion were overruled. In this there was no error. This case is unlike the cases of Levinski v. Cooper, 142 S. W. 959, and Fell v. Kimble, 154 S. W. 1070, wherein it was apparent that the questions were asked for the purpose of getting before the jury the fact that the defendant had indemnity insurance. Here the circumstances rendered the question a proper one. The witness was the chief engineer of plaintiff in error. There was a sharply contested issue as to whether or not certain rust spots, and what was claimed to be sand holes, appearing on a broken edge of the “T” existed pri- or to the explosion. The witness had testified that he had examined the piece of the “T” exhibited immediately after the explosion, and that the edges at that time were bright and presented no indications of sand holes. Defendants in error had the right to know who had been in possession of the fragments of the “T,” in order that they might prove by such person or persons, if they could, that the fragments had been so kept as that they were not likely to rust, or that they were rusty when they came into the possession of such person immediately after the explosion. The question did not call for an answer which would in any wise connect any insurance company with the case. The witness should have named the person to whom he delivered the fragments, instead of the insurance company for which he acted.

Besides, the question being a proper one, it is not probable that the answer influenced the jury adversely to plaintiff in error. Several jurors were examined on the motion for a new trial, and their testimony showed that those of the jury who considered this testimony at all thought it meant that plaintiff in error had insurance on its boilers. Defendants in error were not suing for damages done to the boiler, and such insurance, if, any, would in no wise indemnify plaintiff in error as to any judgment that might be rendered against it herein.

What is here said as to the testimony of .the witness Wonderlich applies with greater force to the testimony of the witness Anderson, whose statement that he signed a statement “to the insurance people” was entirely voluntary, and was by the court excluded from the jury. - For the reasons stated, the third, fourth, and fifth assignments are overruled.

The seventh assignment of error is as-to the admission of the following testimony of the witness Cable: “Q. State whether or not it is customary, in the exercise of proper conduct of a plant of this kind, where there is a high pressure boiler being used, to examine and repair all the parts and connections. A. Certainly, it is the custom.” The proposition of plaintiff in error is that whether or not a specific act is negligence cannot be shown by proof of the custom of other parties engaged in a similar business as to-such act. Generally speaking, this proposition is correct. Railway Co. v. Evansich, 61 Tex. 3; Norwood v. Insurance Co., 13 Tex. Civ. App. 475, 35 S. W. 717; Railway Co. v. Duncan, 88 Tex. 611, 32 S. W. 878. But the error, if any, was harmless, inasmuch as the plaintiff in error proved that it was its custom to examine and repair all parts and connections of its machinery.

There was no error in admitting the testimony of the witness Smitherman as to the comparative safety of a “T” fastened with bolts with one screwed into the main pipe. The witness was not an expert as to the tensile strength of iron; but he based his answer upon his observation and experience with T’s of such character, and we take it that his answer was correct, inasmuch as plaintiff in error could easily have shown the contrary, if such was the fact, by experts and others of like experience who testified in this case as to other matters. No attempt was made to contradict the witness Smitherman, who testified that a “T” put on with bolts would give ,-more room for expansion than one screwed into the main.

To our minds, the eighth assignment of error presents a more serious question than any other in the case. It is to the effect that the court erred in instructing the jury that, in assessing the damages in behalf of the minor children, they might take into consideration “the value, if any, to the minor children of the care, mental and moral training, if any, of the deceased, if he had lived.” We have been cited to no case directly in point, nor do we know of any.

It is conceded that this is a proper element of damages, .if pleaded; - the objection urged is that no such element of damages was alleged. The petition alleges the minority of the children, and that the deceased used his wages in the support, “maintenance, and care. of his wife and said minor children.” The evidence showed that one of the children was nine years of age, and the other seven, that Mrs. Ruth Bird was their stepmother, who had been married to the deceased about six weeks at the time of his death, and that after his death she was unable to support them. The evidence showed that the ■deceased was a competent fireman, and that he supported his family; but there was no evidence as to the mental or moral training, if any, that he gave or was capable of giving to his children. In Traction Co. v. Dilworth, 94 S. W. 352, the court said: “In suits by minor children for wrongfully causing the •death of their father, the damages are not limited to such a sum as the father would probably have contributed to them, for the loss of the care, moral and mental training of their father, which have an appreciable pecuniary value, may be considered in estimating the damages.” In Railway Co. v. McVey, 83 S. W. 36, the court said: “The answer of the appellees to appellant’s motion for a rehearing tersely and correctly states the rule as follows: ‘The father owed to the children the duty of nurture, protection, education, etc, * * * and the legal right to the same entitled them to have it considered us an element of damages.’ ” Had such damages been alleged, proof that the deceased possessed average mentality, character, and affection for his children would have entitle^ the children to recover for the loss of the training which the father might have given had he lived, as the law would presume some damage from such loss. Such proof would not have been necessary had the loss of mental and moral training been alleged, for the reason that it should be presumed, in absence ■of evidence to the contrary, that the average father is valuable to his minor children in this respect. It would not have been susceptible of exact proof by expert testimony, as the jury were as capable of estimating such value as any witness who might have been called to give his opinion on this subject. Hence we believe that it was not necessary to specifically allege that a minor suffered pecuniary loss by reason of being deprived of the mental and moral training of its parent, but that the general allegation of damages, together with the allegation, as in this case, that the deceased father supported and cared for the child, is sufficient.

The ninth assignment of error relates to the refusal of the court to peremptorily instruct a verdict for plaintiff in error. We overrule this assignment, for the reason that the evidence was such as to require the issues of fact, as to whether the death of George Bird was proximately .caused by the negligence of the plaintiff in error, without having assumed the risk of being injured, and without having contributed thereto by his own negligence, to be submitted to the jury.

Finding no error in the proceedings of the trial court, its judgment is affirmed.

Affirmed.


author: CARL, J.

text:
    LEVENTHAL v. HOLLAMON et al.
    (Court of Civil Appeals of Texas. San Antonio.
    March 25, 1914.)
    1. Sales (§ 52) — Existence of Contract— Sufficiency of Evidence.
    In an action for the price of a car load of watermelons, evidence held sufficient to warrant a finding that the defendant agreed to purchase the melons from the plaintiff’s assignor.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 118-144, 1045; Dec. Dig. § 52.]
    2. Sales (§ 340) — Remedies of Seller.
    Where the buyer of a car load of melons refused to accept them upon delivery, the seller could consider them as the property of the buyer, and sue for the price, or could foreclose his vendor’s lien, and sue the seller for the difference, or could treat the property as his own, and sue for damages.
    [Ed. Note. — Por other eases, see Sales, Cent Dig. §§ 927-942; Dec. Dig. § 340.]
    3. Justices of the Peace (§§ 73, 74) — Procedure — Change of Venue — Application.
    A plea of the privilege of the defendant, in an action before a justice of the.peace, to be sued in the county of his residence, which did not show the precinct in the county in which he resided, so that the cause might be transferred to the proper justice court, was insufficient.
    [Ed. Note. — Por other cases, see Justices of the Peace, Cent. Dig. §§ 236-242; Dec. Dig. §§ 73, 74.]
    4. Justices of the Peace (§ 161) — Pkoce-duee — Change of Venue — Waivee.
    A defendant, in an action before a justice of the peace, who filed no plea of privilege until after judgment had been rendered against him, and he had appealed to the county court, waived his right to be tried in the county of his residence.
    [Ed. Note. — Por other'cases, see Justices oi the Peace, Cent. Dig. §§ 592-599, 601, 602, 604; Dec. Dig. § 161.]
    5. Costs (§§ 169, 172) — Allowance of, Attorney's Pees — Peesonal Expenses.
    An allegation that a claim was fraudulently assigned to give jurisdiction over the action, in a county where the defendant did not reside, is not sufficient to authorize an allowance to the defendant of attorney s fees or of expenses in attending the trial.
    [Ed. Note. — For other cases, see Costs, Cent. Dig. §§ 652, 653, 657, 658, 663, 665-687, 759; Dec. Dig. §§ 169, 172.]
    6. Depositions (§ 61) — Suepeession — Geounds — Absence of Attoeney.
    A deposition will not be suppressed because counsel for the adverse party was not present at the taking of the deposition, where it does not appear that any harm thereby resulted to such party, and especially if counsel for the other party was not present either.
    [Ed. Note. — For other cases, see Depositions, Cent. Dig. § 128; Dec. Dig. § 61.]
    7. Depositions (§ 83) — Suppeession — Geounds — Disobedience to Subpcena.
    The fact that the plaintiff, who was subpoenaed by the defendant, disobeyed the subpoena is not sufficient ground for the suppression of his deposition, where no attachment was requested.
    [Ed. Note. — For other cases, see Depositions, Cent. Dig. §§ 219-226; Dec. Dig. § 83.]
    Appeal from Guadalupe County Court; J. M. Woods, Judge.
    Action by George B. Hollamon against H. Leventhal and Abe Freeman. From a judgment in the county court, on appeal from a justice of the peace, for the plaintiff against both defendants, and for the defendant Freeman against the defendant Leventhal, the defendant Leventhal appeals.
    Affirmed.
    Jas. A. Harley, of Seguin, for appellant. J. B. Dibrell, of Seguin, for appellees.

      For other oases see same topic and section NUMBER In Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   CARL, J.

George B. Hollamon brought this suit against H. Leventhal and Abe Freeman, claiming $175 on an account for a car load of watermelons shipped by Freeman to appellant,. Leventhal, and the account having been assigned to Hollamon by Freeman, and payment thereof guaranteed. .The suit was originally in the justice’s court, whence it was appealed to the county court of Guadalupe county, and there again judgment was for Hollamon against Freeman for $175, and in favor of Freeman against Leventhal for $127, interest and costs. In the county court Leventhal pleaded his privilege to be sued in Dallas county, where he resides, and alleged collusion and fraud between Freeman and Hollamon for the purpose of conferring jurisdiction on the county court of Guadalupe county. Freeman assumed the burden of the litigation in both the lower courts on behalf of the plaintiff, and made the fight, although Hollamon was nominally the plaintiff, and excepted to Leventhal’s plea in abatement and allegations as to fraud and conT spiracy, which the court sustained.

It is contended that no contract to buy the melons is shown; that the minds did not meet in an agreement. Joe Novich testified that on July 4, 1912, on.his way from the post office in Dallas he went into appellant’s place of business for refreshments, and Leventhal, whom he had previously introduced to appellee Freeman, asked witness to get in communication with Freeman and order a ear of melons to be of the average size, not less than 25 pounds each, for which he agreed to pay $175, f. o. b. Dallas; that on the same day, and soon after such request, witness did get in communication with Freeman and told him of the order, and Freeman accepted. Freeman confirmed the sale by letter to Leventhal the same day. And later Leventhal called up Novich and asked whether the melons had been shipped. There was sufficient evidence upon -which the jury could Dase its finding that there was such a contract.

Freeman shipped the car of -melons to appellant at Dallas, and he examined them, and said they were not sound, as ordered, and refused them; whereupon Freeman sold them for $48 after some days.

If appellant ordered the melons as claimed, and refused to accept them upon arrival, Freeman had the choice of three remedies: (1) He could hold the property as the property of Leventhal, and sue for the price; (2) he could foreclose his vendor’s lien upon the property by a fair sale of it, and sue Leven-‘thal for the difference; (3) or he could treat the property as his own after the vendee’s refusal, and sue for damages. Welden v. Texas Continental Meat Co., 65 Tex. 489; Waples v. Overaker, 77 Tex. 7, 13 S. W. 527, 19 Am. St. Rep. 727; Avant v. Watson, 57 Tex. Civ. App. 304, 122 S. W. 586; Woldert v. Arledge, 4 Tex. Civ. App. 692, 23 S. W. 1052; Sour Lake Townsite Co. et al. v. Duetser Fur. Co., 39 Tex. Civ. App. 86, 94 S. W. 188.

The plea of privilege was raised for the first time in the county court, on appeal, and the court did not err in sustaining ex> ceptions to it.

When a plea of privilege is filed and relied on as to jurisdiction, the one seeking to avail himself of that plea must give the other party a better writ. He must show exactly where the proper jurisdiction is, so that the venue may be correctly laid. This cause originated in the justice’s court of Guadalupe county, from which it was appealed to the county court. In fact the amount in: volved indicates that the justice’s court has exclusive original jurisdiction, and the county court could only acquire jurisdiction on appeal. The plea of privilege does not show in what justice’s precinct the appellant lives; but he asks that the case be transferred to the Dallas county court from the county court of Guadalupe county after he has neglected to file any plea in the justice’s court. We think it too well settled in Texas that he cannot do this to require us to cite authorities. After appellant failed to file his plea in the justice’s court, he voluntarily appealed to the county court of Guadalupe county, the same court which he now says had no jurisdiction. If he had, in due time, filed his plea of privilege in the justice’s court, and had not waived same, it follows that he could urge the same plea in the county court. But even then, if the county court should find that the plea should have been sustained had it been filed in the justice’s court, the case would go to the proper justice’s court in Dallas county," the name of which appellant has failed to furnish. Therefore his contention cannot be sustained, first, because his plea did not show the court that rightfully had jurisdiction, and, second, because he waived the right 'to sucb plea by not filing same in the justice’s court. Karner v. Ross, 43 Tex. Civ. App. 542, 95 S. W. 46; Hall v. Howell, 56 S. W. 561; Watson v. Baker, 67 Tex. 48, 2 S. W. 375; Floyd v. Gibbs, 34 S. W. 154.

Nor did the court err in sustaining exceptions urged by appellee Freeman to Leven-thal’s claim for attorney’s fees. An allegation that the claim was fraudulently transferred for the purpose of giving jurisdiction to the court where the cause is sued on is not sufficient to enable appellant to recover attorney’s fees. And the same would apply to the items of personal expense in attending the trial sued for in the cross-action. Mutual Life Ins. Co. v. Hargus, 99 S. W. 580; Salado College v. Davis, 47 Tex. 131; Strauss v. Dundon, 27 S. W. 503; Tunstall v. Clifton, 49 S. W. 245.

Appellant contends that the deposition of George B. Hollamon should have been suppressed, because his attorney was not permitted to be-present, and because Hollamon refreshed his memory in giving same from some kind of paper which he had. It is made to appear that this paper merely had some dates on it, etc. It is not shown that any injury resulted from the fact that appellant’s counsel was not present, especially since the other attorneys were not present. In fact it is not shown how any harm was done, or that it would have been different had counsel for appellant been there. The assignments ^raising this matter are overruled.

Complaint is made that the court erred in refusing to suppress Hollamon’s deposition, because appellant had subpoenaed him as a witness, paid him $1, and he refused to attend court. This is not cause for suppressing a deposition. The court, on application would have issued an attachment for Holla-mon, and he would then have come. This was not requested; but, instead, the deposition is sought to be quashed.

We have examined the other assignments, and, finding them without merit, overrule them all.

Judgment affirmed.


text:
    ST. LOUIS, B. & M. RY. CO. v. GOULD.
    (Court of Civil Appeals of Texas. San Antonio.
    March 4, 1914.
    Rehearing Denied April 1, 1914.)
    1. Courts (§ 489) — Jurisdiction oe State Court — Interstate Commerce Act — Loss oe Goods.
    An action against an initial carrier to enforce liability under the Carmack amendment (Act June 29, 1906, c. 3591, § 7, pars. 11, 12, 34 Stat. 593 [U. S. Comp. St. Supp. 1911, p. 1307]), to the Interstate Commerce Law (Act Feb. 4, 1887, c. 104, 24 Stat. 379 [U. S. Comp. St. 1901, p. 3154]), for loss of goods by a connecting carrier is within the jurisdiction of a state court, and not within the exclusive jurisdiction of the federal tribunals.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 1324^-1330, 1333-1341, 1372-1374; Dec. Dig. § 489.]
    2. Carriers (§ 185) — Evidence (§ 314) — Connecting Carriers — Loss oe Goods — Evidence.
    Where the agent of a terminal carrier testified that his company had delivered the goods not lost to plaintiff, and that he had located the loss of the other goods on a certain other line of railway, such evidence was not hearsay, and was competent to show that the company by which the witness was employed in fact handled the goods.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 835-850; Dec. Dig. § 185; Evidence, Cent. Dig. §§ 1168-1173; Dec. Dig. § 314.]
    3. Carriers (§ 177) — Connecting Carriers —Loss oe Goods — Interstate Commerce Law.
    In an action against the initial carrier under Carmack' amendment (Act June 29, 1906, c. 3591, § 7, pars. 11, 12, 34 Stat. 593 [U. S. Comp. St. Supp. 1911, p. 1307]) of the Interstate Commerce Law (Act Feb. 4, 1887, c. 104, 24 Stat. 379 [U. S. Comp. St. 1901, p. 3154]) for loss of goods, it is immaterial' where the loss occurred.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 775-789, 791-803; Dec. Dig. § 177.]
    4. Carriers (§ 185) — Connecting Carriers —Loss oe Goods — Shipping Contract — Alteration.
    In an action against an initial carrier for loss of goods, plaintiff was entitled to testify that certain notations appearing on a copy of the shipping contract had been written thereon after she signed the original.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 835-850; Dec. Dig. § 185.]
    5. Carriers (§ 185) — Connecting Carriers— Loss oe Goods — Value.
    In an action against an initial carrier for loss of goods, there being no valuation in the shipping contract, plaintiff was entitled to prove their value.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 835-850; Dec. Dig. § 185.]

      6. CARRIERS (§ 135) — Loss or Goods — Measure of Damages — Freight Rate.
    Where a freight rate for the transportation of goods was not based on the market value of the goods at the point of shipment, and a clause in the shipping contract, that the measure of damages should be the value of the goods at the time and place of shipment, was not inserted as a basis for obtaining a certain freight rate, and was therefore void, such value at the point of shipment was not conclusive on the question of plaintiff’s damages for loss of the goods.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 557-559, 599-602, 603%-G04% ; Dec. Dig. § 135.] ' '
    7. Costs (§ 238) — On Appeal — Errors—Admitted Correction.
    Where appellant made no effort in the trial court to obtain a correction of the judgment, which was erroneous only as to two items amounting to $6.50, it would not be relieved of costs on appeal by reason of the correction of such error.
    [Ed. Note. — For other cases, see Costs, Cent. Dig. §§ 908-919; Dec. Dig. § 238.]
    Appeal from .Cameron County Court; E. H. Goodrich, Judge.
    Action by D. A. Gould against the St. Louis, Brownsville & Mexico Railway Company. Judgment for plaintiff, and defendant appeals.'
    Affirmed.
    Claude Pollard, of Kingsville, and Graham, Jones, West & Dancy, of Brownsville, for appellant. J. T. Canales and Harbert Davenport, both of Brownsville, for appellee.

      For other eases see same topic and section NUMBER in Dee. Dig. & Am. Dig-Key-No. Series & Rep.’r Indexes

      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   FLY, C. J.

This is a suit by appellee to recover the value of certain household goods shipped on a through bill of lading from Ray-mondville, Tex., to Birmingham, Ala.; appellant being the initial carrier. No jury was demanded, and upon a trial by the court judgment was rendered in favor of appellee for $124.50.

The shipment was made under a written contract whereby appellant undertook to transport the goods from Raymond-ville to Birmingham, and, through the first assignment of error, it is contended that the county court of Cameron county had no jurisdiction because, .the cause of action being one created by the Carmack amendment, jurisdiction is given to federal tribunals alone. That contention was made before this court, in similar cases, over five years ago, and it was held that state courts had jurisdiction in such cases. Railway v. Piper, 52 Tex. Civ. App. 568, 115 S. W. 107; Railway v. Crow, 117 S. W. 170; Railway v. Wallace, 117 S. W. 169. The Wallace and Crow Cases were appealed to the Supreme Court of the United States, and the opinions of this court fully sustained. Railway v. Wallace, 223 U. S. 481, 32 Sup. Ct. 205, 56 L. Ed. 516. They were also approved by the Supreme Court of Texas in Railway v. Lewis, 103 Tex. 452, 129 S. W. 594. The question is no longer an open one.

The second and third assignments of error are overruled. Appellee filed a claim in writing for the lost goods with the agent of the railway company at point of destination within a few days after delivery of part of .the goods. There was full compliance with the provision in the shipping contract requiring claim to be made for damage or loss within four months after delivery of the property either to the initial or ultimate carrier. We fail, in view of the facts in the case, to understand upon what basis the assignment is placed. The brief fails to disclose it, unless it be the claim that the proof failed to show that the railway company notified had ever handled the goods. The notice was given to an agent at Birmingham, Ala., of the Alabama & Great Southern Railroad Company. The agent admitted that his company had delivered the goods not lost to appellee, which is excellent proof that it had brought them • into Birmingham. It would be incomprehensible' that an agent of a railroad company would be investigating the loss of goods not handled by it, and admitting that he had delivered a portion of the goods to appellee, and had located the loss of the others on a certain line of railway. The evidence of the location of the loss was direct and positive, and was in no wise hearsay. That it was hearsay was the only objection urged to it. The agent of the Alabama & Great Southern Railroad Company at Birmingham, Ala., was the agent of appellant under the terms of the Carmack amendment. Railway v. Wallace, 223 U. S. 481, 32 Sup. Ct. 205, 56 L. Ed. 516. It did not make any difference where the loss occurred; appellant, as initial carrier, was liable.

It was proper to allow appellee to swear that certain things had been written on the contract of shipping after she signed it. There were circumstances which corroborated her statement. She should not be held bound by a contract which she did not sign. The original contract was not produced. The evidence showed that no valuation was placed upon the goods in the contract. The evidence indicates that the letters and figures. “O. R. Rel $5.00 Cwt.,” were not on the contract when appellee signed it, but were put there afterwards to cover accidents. There being no valuation of the goods in the contract, appellee could prove the value of her goods. Adams Express Co. v. Croninger, 226 U. S. 491, 33 Sup. Ct. 148, 57 L. Ed. 314, 44 L. R. A. (N. S.) 257. There was nothing, therefore, to indicate that a lower rate was charged because of the valuation put upon the goods by appellee. It is only where the bill of lading or receipt stipulates for a certain value that shipper is bound by it.

The fifth assignment of error is overruled. The name of the road to which the claim for damages was given is found incorrectly by the court; but that is a trivial matter, the point being that the notice was given to the ultimate carrier.

No objection was made to the proof of the market value of the goods in Birmingham. The rate of freight was not based on the market value of the goods at point of shipment. The clause in the shipping contract as to the measure of damages being the value of the goods at the time and place of shipment was not inserted as a basis for obtaining a certain freight rate, and is therefore null and void. It could not form a basis for the freight rate because it was not shown to have been known, and because appellant is contending that the freight rate was fixed by the letters and figures hereinbefore mentioned. The value of the property can be agreed to only as a means for fixing the rate. Adams, v. Croninger, herein cited.

There is a manifest error in the amount of damages by the trial court evidently arising from an error in placing the value of a certain article at $50, instead of $45, and in allowing the value of a broken pedestal $1.50, when the extent of the damage to it was not shown. The judgment will be reduced in the sum of $6.50. Appellant made no effort to have the correction made in the lower court, and will not, therefore, be relieved of the costs of prosecuting this appeal.

The judgment will be reformed so as to reduce the amount from $124.50 to $118, and as reformed will be affirmed.


text:
    JONES v. DOTY et al.
    (Court of Civil Appeals of Texas. San Antonio.
    March 18, 1914.)
    1. Appeal and Error (§ 569) — Statement oe Facts — Authentication.
    The facts can be presented to an appellate court only by a full statement of facts agreed to and approved by the judge, or by a brief statement of the case and of the facts proven, approved and signed by the judge, and an agreed statement, not approved by the court or referred to in the bill of exceptions, cannot be considered in connection with the bill of exceptions.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2530-2545; Dec. Dig. § 569.*]
    2. Appeal and Error (§ 1032) — Harmless Error.
    ■ A judgment will not be reversed because of the manner of choosing the jury, or because the court failed to formally present the charge to counsel before the arguments, where appellant did not claim that he was thereby injured.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4047-4051; Dec. Dig. § 1032.]
    Appeal from Yal Yerfie County Court; C. K. McDowell, Judge.
    Action by W. H. Doty and another against T. B. Jones, executor. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    John Foster and Phil B. Foster, both of Del Bio, for appellant. Jones & Thurmond, of Del Bio, for appellees.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   FLY, C. J.

Appellees, W. H. Doty and George H. Garrett, who are. physicians, instituted this suit against appellant, executor of the estate of O. P. Boger, to recover on an account of $500 for medical services rendered to said O. P. Boger. Appellant answered by general demurrer, general denial, attacked the account as excessive and unjust, and claimed that it should not exceed $60. The cause was tried by jury and resulted in a verdict and judgment for $375.

There is no statement of facts accompanying the record. There are two agreed statements copied into the record, one bearing upon the fact that the judge did not submit his charge to counsel for appellant before the argument began, and the other as to the jury commissioners and the manner of selecting the jurors to try the cause. The desire is to have the statements of facts considered in connection with the bill of exceptions which was taken in regard to the manner of choosing the jury. The court approved the bill of exceptions, but did not approve either of the agreed statements. There is no reference in the bill of exceptions to an agreed statement of facts bearing upon the bill of exceptions. Neither of the agreed statements can be considered by this court because neither has been approved by the trial judge. Facts can be presented to an appellate court in only two ways; that is, by a full statement of facts agreed to and approved by the judge, or by a brief statement of the case and of facts proven, approved, and signed by the judge. The agreement of counsel standing alone cannot give any validity to a statement of facts. If the statement as to the jury had been made a part of the bill of exceptions, which was approved by the judge, it could be considered, but it is not mentioned in the bill of exceptions, and was separately filed.

The matters complained of, even if sustained by facts, present mere abstractions. It is not claimed that appellant sustained any injury from the manner of choosing the jury, or from not having the charge formally presented to him before the argument began. Appellant admits in his brief that he “can point out no apparent error” from which he has suffered. Before a party can obtain a reversal, from this court, he must show that the error of which complaint is made probably injuriously affected his rights. The day for reversals upon abstractions and mere technicalities has happily passed, but even under the old system in Texas such objection to juries as are found in this case, unsupported by facts showing probable injury, would not cause a reversal. Caldwell Co. v. Harbert, 68 Tex. 321, 4 S. W. 607.

The judgment is affirmed.


author: MOURSUND, J.

text:
    SWEARINGEN v. SWEARINGEN et al.
    (Court of Civil Appeals of Texas. San Antonio.
    March 4, 1914.
    On Motion for Rehearing, April 1, 1914.)
    1. Divoecb (§ 280) — Interlocutory Orders —Right of Appeal.
    Rev. St. 1911, art. 2079, provides that an appeal shall lie from an interlocutory order of the district court appointing a receiver in any cause, and article 2880 declares .that appeals shall also lie from the district courts to Courts of Civil Appeals, from orders granting or dissolving temporary injunctions, etc. Meld, that neither section permitted an appeal from an order refusing to appoint a receiver and to grant alimony in a suit to set aside a divorce decree and for a decree granting complainant a divorce and alimony.
    [Ed. Note. — For other cases, see Divorce, Cent. Dig. § 764; Dec. Dig. § 280;]
    2. Divorce (§ 206) — Suit to Vacate Decree —Action for Divorce — Injunction.
    In a suit to vacate a divorce decree granted her husband and for a. divorce in her favor, complainant alleged that defendant had not resided in the county six months next preceding the filing of the action in which the divorce was granted, and that no service of citation was ever, in fact, made on her, and prayed that, if the divorce decree be not set aside, she be granted the custody of her child, and judgment be entered dividing the community estate. Her bill contained no allegation that her residence (was such as to confer jurisdiction on the court 'to grant her a divorce. Held, that the court properly refused to grant a temporary injunction restraining defendant from transferring his property pendente lite, under Rev. St. 1911, art. 4658, providing that, in a suit by a wife for divorce, she may have an injunction for the preservation of her rights restraining her husband from disposing of any of his real property pendente lite.
    [Ed. Note. — For other cases, see Divorce, Gent. Dig. §§ 600-603; Dec. Dig. § 206.]
    Appeal from District Court, Bexar County; W. F. Ezell, Judge.
    Action by Lela Swearingen against A. J. Swearingen and others to set aside a divorce decree and for a divorce and alimony. From an order denying plaintiff’s application for the appointment of a receiver and for the issuance of a temporary injunction and alimony, she appeals.
    Affirmed.
    C. L. Bass, of San Antonio, for appellant. Swearingen & Ward and Joseph A. McCaleb, all of San Antonio, for appellees.

      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   MOURSUND, J.

Appellant on November 5, 1913, sued A. J. Swearingen, S. G. Tayloe, S. J. Brooks, William Cassin, P. H. Swear-ingen, M. H. Burris, and Z. W. Cannon in district court of Bexar county, Forty-Fifth district. Hon. S. G. Tayloe, judge of said court, certified his disqualification to try the ease, and requested Hon. W. F. Ezell, judge of the district court of the Seventy-Third district to try the same, and thereafter, by mutual consent and agreement, an order was entered transferring the cause to the district court of said Seventy-Third judicial district.

Plaintiff alleged: That on November 17, 1905, A. J. Swearingen filed suit against Lela Swearingen, plaintiff herein, in the district court of the Forty-Fifth judicial district of Bexar county, praying for divorce, and for division of community property, the alleged ground for divorce being cruel treatment of such character as to render their further living together insupportable to said A. J. Swearingen; that on January 29, 1906, a decree was entered in said cause divorcing A. J. and Lela Swearingen, and vesting in A. J. Swearingen all the community estate; that A. J. Swearingen had not resided in Bexar county for. six months next preceding the filing of his said petition; that the return upon the citation in said suit is untrue, no copy of the same having ever been delivered to Lela Swearingen, as therein stated; that the decree in said suit was wholly based upon testimony which was untrue; that Lela Swear-ingen was not guilty of any cruel treatment towards A. J. Swearingen; that they were married on December 9, 1889, and resided near Sonora, Tex., until the fall of 1904, three children being born to them, and they accumulated community property valued at from $25,000 to $50,000; that, several months prior to the fall of 1904, A. J. Swearingen conceived a scheme to get rid of Lela Swear-ingen and their children permanently, and to keep the bulk of the property, the true facts of which scheme were not learned by her until in the summer and fall of 1913; that such scheme was to induce her to agree to the sale of their property under the pretense that he wished to remove to California, near where her eldest brother lived, and invest the proceeds of such property there; that, relying upon such representations, she acceded to his request, and executed deeds conveying their residence and business homesteads ; that the remaining community estate was sold; that A. J. Swearingen received for the property sold cash amounting .to between $25,000 and $50,000; that he shipped their household goods to California and proceeded with her and the children to Ft. Worth, where he informed her he would no longer live with her, and that she and the children must go to California without him, but that he intended to permanently provide for and support them; that he purchased tickets for them at an expense of about $200, and gave her $600 in cash; that, by reason of such representations and of the fact that she had no other place to go, there being an estrangement between her and her parents, as he knew, she was induced and caused to comply with his Command and to go to California with the children; that, after reaching California, she received letters from him informing her of his desire to be divorced from her, and requesting her to sue for divorce in California, but she declined to do so; that in the fall of 1905 she received a letter from him requesting her to meet him in El Paso, but for her to leave the children, in which letter lie represented that lie desired such meeting because he intended to make a fair division of their community estate; that he knew she would by that time have been compelled to expend the money he had given, her, and he did not intend to have a fair division, but to get her into Texas, so that citation might be served upon her in said cause, and to take advantage of her necessities to procure an unfair division; that she came to El Paso and brought the children with her, meeting him on No.vember 20, 1905, when he told her he had sued for divorce, and again represented that he intended to permanently provide for her and the children, in addition to what he would give her in the division of the community estate, and also represented that he had invested and lost all of such estate except about $1,200, which he offered her on condition that she should sign an agreement reciting that she had received and accepted $2,000 as her part of such estate; that she was induced by said representations to accept his offer and sign the agreement; that said representations were untrue, as he had not lost such property, and did not intend to support her and the children, and, in fact, never contributed anything further towards their support; that, when the decree was entered, much of the community estate was outside the state of Texas, and that within the state was not particularly described therein, and, if such decree is not void for uncertainty, it failed to divide the community property fairly, and did not dispose of the custody of the children; that she did not, and could not, by the exercise of ordinary and due diligence, discover the facts showing that a judgment of divorce had been illegally obtained against her until the summer of 1913, nor did she discover the facts showing such fraudulent conduct of A. J. Swearingen until that time; that, had a fair and equitable division been made, she would have received about $15,000 or $20,000 worth of property; that at the time such decree was entered the community estate was held by various persons for said A. J. Swearingen, and since then, by sales, exchanges, and transmutations of value, the same has become of the value of about $100,000 to $150,000. The property is described in the petition, and it is alleged that the defendants other than A. J. Swear-ingen claim some interest in a tract of land containing 4,345 acres, for which reason they are made parties, in order that their interests may be determined and set apart to them. Plaintiff also sets up a cross-action for divorce, provided the decree aforesaid be set aside. She prayed that a receiver be appointed to take charge of all property held by A. J. Swearingen in which she has an interest; that alimony be allowed her pending the suit; and that a temporary injunction be granted restraining him from disposing of any of said property pending the suit. She prayed further that, upon final hearing, the decree of divorce be set aside, if the court can grant her a divorce, and', if not, then that the decree of divorce be permitted to stand, but that she be granted the custody of their minor child, Susan, and that the portion of the decree vesting the community estate in A. J. Swearingen be set aside, as well as all instruments to that effect, and judgment entered dividing such estate and adjusting their property rights.

Copies of the citation and decree are attached as exhibits. The return on the citation is regular; the sheriff stating that he delivered to Lela Swearingen a copy of the writ, together with a certified copy of the petition, on November 21, 1905. The judgment recites service by personal service, and contains a copy of the agreement made between the parties at El Paso on November 21, 1905, in which it was stated that they separated on November 26, 1904, intending that the separation should be final, and that A. J. Swearingen had filed suit for divorce on November 17,1905, in the Forty-Fifth district court of Bexar county, and that a division of the community property is agreed upon at the special request of Lela Swearingen.

A. J. Swearingen filed a general demurrer and special exceptions urging the two and four year statutes of limitation, also that plaintiff is estopped form reopening the decree on account of her laches. He answered that he had again married; that by his second wife he had two children; that all property he owned was community property of such second wife and himself; and that his wife is a necessary party to the suit. He prayed that no^ temporary order of any kind be granted.

The other defendants answered, alleging that' they jointly owned a half interest in the 4,345 acres of land described in the petition, and A. J. Swearingen the other half interest; that they owe about $65,000 upon said land; and that, if a receiver be appointed or an injunction issued, it would probably result in the loss to them and A. J: Swear-ingen of said land, as a part of the purchase money would be due in January, 1914, and it would be necessary to arrange to meet the same.

The court, on November 19, 1913, entered an order refusing to grant the application for a receiver, or the issuance of a temporary injunction, or alimony. Plaintiff appealed from such order.

The assignments complaining of the refusal of the court to appoint a receiver and to grant alimony are without merit, because no. appeal is permitted from ifiterlocutory orders of that character. Articles 2079, 2080, Rev. Statutes; Turner v. Turner, 47 Tex. Civ. App. 392, 105 S. W. 237. The only question requiring consideration is whether the court erred in refusing to giant a temporary injunction.

Article 4638 provides that at any time during a suit for divorce the wife may, for the preservation of her rights, require the issuance of an injunction restraining her husband from disposing of any part of the real and personal estate in the possession of her husband. The Supreme Court, in the case of Wright v. Wright, 3 Tex. 175, construing said, article, said: “The terms are emphatic .that the wife may require an injunction restraining the husband from the disposition of any part of the property in any manner, and it would seem to be imperative on the courts to issue such ‘writ whenever it may be demanded by the wife. From the language employed, if construed literally, it would appear that but little discretion can be exercised in determining upon the application, and that the writ, when desired, would be one of right, and would issue almost as a matter of course.” See, also, Turner y. Turner, supra.

' This is a suit in equity to set aside a judgment for divorce; the prayer on the issue of divorce being conditional, as is shown in óur statement of the pleadings. The judgment is attacked upon two jurisdictional grounds; one that, at the time A. J. Swear-ingen filed his petition in said cause, he had not resided in Bexar county for six months next preceding such filing; the other that no service of citation was ever, in fact, had upon Lela Swearingen. Taking the first allegation as true, the court should not have entertained the suit, and would not now entertain the suit if the same had up to this time remained on the docket without a trial, unléss A. J. Swearingen filed an amended petition. Michael v. Michael, 34 Tex. Civ. App. 630, 79 S. W. 74; Dickinson v. Dickinson, 138 S. W. 205; McLean v. Randell, 135 S. W. 1120. Conceding, therefore, only for the purposes of this appeal, that the petition makes a prima facie case for setting the judgment aside upon that ground, it would become the duty of the court not to entertain the petition, but to dismiss the same because of want of jurisdiction. The ■ question then arises whether appellant can keep it from being dismissed by reason of having filed'a cross-action, in which she does not allege that she, at the time of filing the same, had been an actual bona fide inhabitant, of the state for 12 months and of Bexar county for 6 months next preceding such filing, as required by article 4632 as amended by chapter 97 of the Acts of 1913. Appellant relies upon the case of Charlton v. Charlton, 141 S. W. 290. In that case no issue was made as to the jurisdiction of the court to try plaintiff’s case upon the merits, and, having acquired jurisdiction, it was deemed proper to permit defendant to assert a cross-action without alleging the matters concerning residence required, of a petitioner who is plaintiff. We think the decision was correct, but we will not hold that, when neither the plaintiff nor defendant has the qualifications as to residence specified in the statute, the court can grant a divorce. If the plaintiff’s petition cannot 'be entertained, the court has no jurisdiction to pass upon the merits of his case, and a cross-action could not be entertained unless the same contained the allegations as to residence which are required of a party if such party is plaintiff. Note to Succession of Benton, 59 L. R. A. 149; Fisk v. Fisk, 24 Utah, 333, 67 Pac. 1064; Abele v. Abele, 62 N. J. Eq. 644, 50 Atl. 686; Pine v. Pine, 72 Neb. 463, 100 N. W. 938, 9 Ann. Cas. 1198. The petition therefore, taken as true, presents facts such as would not authorize the court to grant appellant a divorce if the judgment be set aside.

We conclude, therefore, the court was justified in holding that under the facts shown to exist by the sworn petition, the benefits given solely by the laws relating to suits for divorce could not be invoked by Lela Swear-ingen.

The petition, when considered in connection with our general injunction statute, presents no case for relief by injunction. It is not made to appear that A. J. Swearingen is doing any act respecting the subject of litigation, or threatens or is about to do some act or is procuring or suffering the same to be done in violation of the rights of appellant which would tend to render judgment ineffectual, nor that irreparable injury is threatened to real or personal property. All the property described in the petition, except two vendor’s lien notes aggregating about $8,000, consists of real estate situated in Bexar county, and we infer from the allegations that the record title of all of same is in appellee. The filing of lis pendens notice could be, and doubtless has been, resorted to by appellant to protect herself against transfers of such real estate, which, it appears from the allegations, is of great value.

In addition, courts do not look with favor upon suits to set aside a divorce decree brought eight years after the rendition of such decree, and after the party procuring same has married again, and has children by such marriage, and a strong showing should be made before an appellate court would be justified in holding that the trial court abused his discretion by refusing a temporary inj unction.

The judgment is affirmed.

On Motion for Rehearing.

Appellant ignores the fact that the requirements as to residence of a petitioner for divorce must be proved as well- as alleged. Appellant appears to have the idea that such allegations are mere matters of form, which, if made by either party, confer jurisdiction, and then, having served such useful purpose, may be quietly discarded. In the Charlton Case the court said: “The purpose of the statute was to protect, not only the defendant in divorce proceedings, but also the interests of society, against fly-by-night divorce suits instituted by birds of passage, who, with no stability of residence, might use the courts to procure divorces upon ■ false grounds, and sometimes by collusion with the opposite party-” "Set appellant contends tliat, if neither party has the residential qualifications prescribed by statute, one of them can bring a divorce suit, and, if the other files a cross-action, the court can grant the cross-action. By collusion, which is always very difficult and frequently impossible to prove, “fly-by-night” divorces could be obtained without any difficulty, and our laws set at naught. Persons residing in other states, if desirous of being divorced, could easily arrange for one to file suit in Texas for divorce, and for the other to go to Texas when the court is in session, file a cross-antion, and obtain the divorce.

Appellant says that “the rule is to prevent the plaintiff from doing wrong, not the defendant; to prevent the plaintiff from collusion, fraud, tricks.” This is a strange and wholly unwarranted conception of the purpose of the law. As collusion necessarily implies the participation of both pasties, it is impossible to see why one would be less guilty than the other. Appellant appears to think that a party who is plaintiff should not be given a divorce without alleging and proving the statutory requirements as to residence, because it might permit of collusion and fraudulent divorces, but, if the collusion and fraud be carried a step further, and suit is filed by one not having the necessary requirements, and the other, who also does not possess the necessary requirements as to residence, files a cross-action, then the statute can be successfully circumvented, and the collusion and fraud will no longer be an abomination in the eyes of the law. Such is not our conception of the law, nor.did the court announce any such rule in the Charl-ton Case. In that case evidence was heard, and, if it had not shown that plaintiff’s alle•gation as to residence was sustained, the court would not have omitted such an important fact in passing upon the case. We repeat that no issue was made in the appellate court as to jurisdiction based upon the theory that neither party had the statutory qualifications as to residence; but the case was treated and discussed as one where plaintiff had such qualifications, but defendant did not. In this case, the sworn petition affirmatively alleges that A. J. Swearingen did not, at- the time he presented his petition, have the qualifications as to residence prescribed by law. This allegation is not denied.

It is not alleged that Mrs. Swearingen had such qualifications. Yet appellant wants the case treated as a divorce suit, so far as granting a temporary injunction is concerned. She prays that the divorce decree be not set aside, unless the court can grant her, a divorce, and, having pleaded facts showing that the court cannot permit the maintenance of a suit by her for divorce, complains because a temporary injunction was not granted on the ground that this is a divorce suit. If a petition for divorce is filed which does not show the necessary facts as to residence, could it be contended that the court ought to grant plaintiff a temporay injunction? If a cross-action is filed which shows that the court acquired no jurisdiction on account of plaintiff’s residence, and does not show that it had any by reason of the residence of defendant, should the court grant an injunction because it is a divorce suit? These questions must certainly be answered in the negative. Appellant quotes the rule that: “A court of equity which has obtained jurisdiction of a controversy on any ground, or for any purpose, will retain jurisdiction for the purpose of administering complete relief and doing entire justice with respect to the subject-matter.” This is discussed at great length and many authorities cited, but appellant begs the question. If it be assumed that, when plaintiff in a divorce suit alleges the statutory requirements as to residence, the court has jurisdiction of the case, and retains it, even though the evidence shows that such allegation is false, then the quoted rule may be applied, but that is assuming the whole question. The statute requires the fact of residence and not the mere allegation thereof, and, if the proof shows that the allegation as to residence is false, plaintiff cannot maintain his suit, and the case should be dismissed; Speer on Married Women, § 343; Nelson on Divorce and Separation, §§ 48, 731; Gamblin v. Gamblin, 52 Tex. Civ. App. 479, 114 S. W. 408; McLean v. Randell, 135 S. W. 1117; Dickinson v. Dickinson, 138 S. W. 205. Nor can we concede that allegations which, if established, may be sufficient to set aside a decree for divorce are equivalent to a suit for divorce, and that therefore the provisions of the divorce statutes with reference to injunctions may be applied. Such, in effect, is appellant’s contention made at the conclusion of the discussion on jurisdiction of courts of equity.

Appellant objects strenuously to our mention of fáets disclosed in one of the sworn answers filed in this case, contending that, as the trial court held the petition insufficient to require the granting of a temporary injunction, we should not give any weight to the answers. The law contemplates that, when a sworn answer is filed, the question whether a temporay injunction should be granted will be determined upon both bill and answer. Article 4645, Revised Statutes 1911. If the court’s ruling is correct upon the bill and answer, the judgment should be affirmed. We think the petition, when considered by itself, shows its insufficiency to entitle appellant to such relief, but see no impropriety in mentioning the allegations of the answer, which are proper to be considered, nor in holding that such facts present a case in which a strong showing should be made before we would be justified in holding that the trial court abused its discretion.

The motion is overruled.