text:
    HOUSTON & T. C. R. CO. v. COLEMAN.
    (No. 7103.)
    (Court of Civil Appeals of Texas. Dallas.
    April 18, 1914.
    Rehearing Denied May 9, 1914.)
    1. Master and Servant (§ 286) — Injuries to Servant — Negligence — Evidence-Question for Jury.
    In an action for injuries to an employé while assisting eoemployés in carrying a cross-tie, caused by the eoemployés dropping the tie pursuant to orders of the foreman, evidence held that the question of the negligence of the foreman was 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; Dec. Dig. § 286.]
    2. Master and Servant (§ 125) — Injury to Servant — Negligence of Vice Principal.
    A foreman who acts for his employer is charged with constructive notice of what will probably and- naturally happen as the result of an order given by him and, where he saw an employé’s position, or, by the exercise of ordinary care, could have seen it, the employer was liable for a negligent order causing injury to the employé.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 243-251; Dec. Dig. § 125.]
    3. Trial (§ 296) —Instructions—Burden oe Proof.
    Where, in an action for injuries to an em-ployé, the court charged that the burden was on plaintiff to show by a preponderance of the evidence of the jEacts entitling him to recover, a charge in presenting the defense that, if an ordinarily prudent person would have done the act complained of, the verdict must be for the employer was not objectionable, as placing on the employer the burden of proving freedom from negligence.
    [Ed. Note. — For other cases, see Trial, Cent. Dig'. .;]§§ 705-713, 715, 716, 718; Dee. Dig. § 296.]
    4. Master and Servant (§ 291) — Injury to Servant — Actions — Instructions — Negligence.
    In an action for injuries to an employé, based on the negligence of the foreman giving an improper order to the employé and coem-ployés, a charge directing a verdict for the employer if an ordinarily prudent person, under the same circumstances, would have given the order, and that, though the foreman gave the order, that fact alone was not negligence, if an ordinarily prudent person would have given it under similar circumstances, did not shift to the employer the burden of proving freedom from negligence.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig, §§ 1133, 1134, 1136-1146; Dec. Dig. § 291.]
    5.Master and Servant (§ 203) — Injury to Servant — Assumption of Risk.
    An employé assumes the risks ordinarily incident to his employment, and, where he is injured as the result of an assumed risk, it is immaterial what care he exercised in the performance of his duties to avoid the injury.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 538-543; Dec. Dig. § 203.]
    6. Trial (§ 253) — Issues—Instructions.
    Where, in an action for injuries to an em-ployé, based on the negligence of the foreman in giving an order to the employé and coem-playés, the single act of the foreman in giving the order was submitted to the jury, so that they might determine whether the giving of the order was negligence, the refusal to submit the issue whether the injuries were due to accident as pleaded was'not erroneous.
    TEd. Note. — For other cases, see Trial, Cent. Dig. §§ 613-623; Dec. Dig. § 253.]
    7. Appeal and Error (§ 216) — Instructions — Requests—Necessity.
    Where the court fails to submit a defensive matter to the jury, defendant must request a charge thereon, or he cannot complain on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 627-641, 660, 662-676; Dec. Dig. § 216.]
    8.Master and Servant (§ 139) — Injury to Servant — Proximate Cause.
    Where an employé engaged with coem-ployés in carrying a cross-tie was injured by the eoemployés dropping the tie pursuant to an order of the foreman directing the employé and eoemployés, the giving of the order was the proximate cause of the injury, authorizing ft recovery if the foreman negligently gave it.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 275, 282, 289, 296; Dec. Dig. § 139.]
    9. Appeal and Error (§ 1004) — Questions Reviewable — Sufficiency of Evidence.
    The right of the court on appeal to interfere with a verdict in a personal injury action on the ground that excessive damages are awarded is controlled by the rules governing its right to disturb any other issue of fact found by the jury.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3944-3947; Dec. Dig. § 1004.]
    10. Master and Servant (§ 179) — Injury • to Servani^-Negligence of Fellow Servant — I NSTRUCTIONS.
    The refusal to charge on the issue of the negligence óf a fellow servant is not erroneous because of the abrogation of the common-law rule exempting the master from liability for the negligence of a fellow servant.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 354-358; Dec. Dig. & 179.]
    Appeal from District Court, Collin. County; F. E. Wilcox, Special Judge.
    Action by J. F. Coleman against the Houston & Texas Central Railroad Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    G. R. Smith, of McKinney, for appellant. R. C. Merritt, of McKinney, for appellee.

      For other cases 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

   RASBURY, J.

Appellee sued appellant for damages for personal injuries, and, upon trial by jury, was awarded verdict, followed by judgment for $5,000, from which this appeal is taken.

Appellee alleged in his petition that he was in the employ of appellant as a section hand, and was engaged in the performance of his duties as such at the time he was injured; the precise ground of negligence urged being that, while appellee and two other section “hands” were engaged in carrying a cross-’ tie of great weight from where it lay upon the right of way to a push car upon which it was to be placed, appellee carrying one end of the tie resting against his stomach, the other two employes having joint care of the other end, appellant’s foreman, knowing that appellee was situated so that he could not drop the tie without preparation for his personal safety, or, if not aware of appellee’s dangerous situation, could have known it by the exercise of ordinary care, directed ap-pellee and his fellow servants to drop the tie, whereupon appellee’s fellow servants, in response to the order, dropped their end of the tie to the ground, precipitating the other end against appellee, seriously and permanently injuring him.

Appellant pleaded appellee’s negligence and assumed risk. Other grounds of ■ negligence and other defenses than those stated were urged respectively by appellee and appellant, but none of them were submitted by the trial judge.

The evidence offered by appellee sustaining his theory of the occurrence and which was adopted by the jury shows, in substance, that appellee was employed by apellant as a section hand, and at the time he received his injuries he and two fellow servants were engaged in removing cross-ties from appellant’s right of way onto a push car, which, in turn, would be pushed over the track to a point where the ties were to be used in constructing a switch. Appellee and his fellow servants, by direction of appellant’s foreman, had lifted a tie preparatory to placing same upon the push car; appellee’s fellow servants carrying the forward end of the tie by placing thereunder a track wrench as a support, each lifting by the protruding end of same, while appellee carried the rear end of the tie by placing his hands under the same and bracing the end of the tie against his stomach. The tie was a large one, weighing 300 or 400 pounds. After appellee and his coemployés had lifted the tie and were about ready to place the same upon the push car, a brother of appellant’s foreman called the foreman’s attention to the fact that the tie about to be loaded on the car was not suited for the purpose contemplated, whereupon the foreman stepped in front of the men, looked at the tie, and said: “I want that ‘thirteen’ on the car next; drop that tie.” Whereupon appellee’s fellow servants, or at least one of them, dropped his side of the tie, causing the other to do so involuntarily, and causing their end of the tie to fall. When the order was given to drop the tie, appellee did not drop it, because to have done so would have been to take the chance of crippling himself and his fellow employés. The manner of placing the tie after raising it was for appellee’s fellow servants to lay or place their end of the tie on the push car and follow with the part supported by appellee; it was dangerous to drop the tie as did appellee’s fellow servants, nor was it customary to drop them in such manner. As a result of the dropping of the tie, appel-lee was seriously and permanently injured.

The first assignment complains of that portion of the court’s charge which, in effect, instructed the jury it could find for appellee if appellee could not, with safety, release the tie when the order was given, and the foreman saw and knew appellee’s position, or could have seen and known same by the exercise of ordinary care. It is contended that such charge was erroneous, because it was not the duty of the foreman to see and know that each employé was in a position of safety before giving an order for prosecuting the work, and because said order was a necessary one. We cannot agree with the contention. Whether the order to drop the tie, under the surrounding circumstances, was negligence was for the jury to determine. It may have been necessary, as urged by appellant, to halt the employés and have them release the tie, but whether, in pursuance of that necessity, an order to drop the tie, in view of the situation of appellee, was negligence or not was, as we have said, a question of fact, and the necessity for dropping 'it was immaterial if the manner was negligent.

The foreman, in acting for his principal, was charged with constructive notice of what would naturally and probably happen as the result of the order to drop the tie. Hence, if the jury believed that the order he gave to drop the tie was, at the time and in view of the situation of the parties and the work in which they were engaged, an act of negligence, appellant would be liable without reference to the necessity of the order. The rule applied to somewhat similar facts is illustrated in Hugo, Schmeltzer & Co. v. Paiz, 128 S. W. 912. Under the rule of constructive notice, it was also correct for the court to charge the jury that, if the foreman saw and knew appellee’s position, or, by the exercise of ordinary care, could have seen and known the same, appellant was liable, since he was so charged by the pleading and the evidence raised the issue. Pledger v. Texas Central Ry. Co., 68 S. W. 516.

It is next urged that in presenting appellant’s defenses affirmatively the court erred in instructing the jury to find for appellant if “an ordinarily prudent person, under the same or similar circumstances,” would have given the order to drop the tie. The error asserted is that it places the burden upon appellant of proving that it was not negligent in giving the order to drop the tie. After presenting appellee’s theory of the case and appellant’s defenses, the court instructed the jury that the burden was upon appellee “to show by a preponderance of the evidence the facts which entitle him to recover.” This we think alone sufficient to have advised the jury of appellee’s burden in respect to the preponderance of the evidence.

Aside from what we have said, however, we think counsel misconstrues the charge. The paragraph complained of was one of several read to the jury for the protection of appellant, and told the jury that, even though they found the foreman did give the order to drop the tie, that fact alone would not constitute negligence, if, in their opinion, an ordinarily prudent person would have given the order to do so under the same or similar circumstances. Thus it occurs to us that, instead of tending to shift the burden of proof, the portion of the charge complained of emphasizes appellee’s duty in that respect, since its clear meaning is that the giving of the order may not have been negligence, and that whether it was or not depends upon whether appellee, under the rule given, has shown it to be.

By the third assignment it is urged that the court incorrectly charged upon the issue of assumed risk and in refusing appellant’s special charge on that issue. The fault found with the charge of the court is that, in addition to instructing the jury that appellee assumed the risks ordinarily incident to his • employment, etc., there should have been added to the charge the instruction that appellee was also bound to use reasonable care in the performance of his duties for his own safety. We believe the contention to be unsound. A servant assumes the risks ordinarily incident to his employment without limitation, and, if he is injured as the result of such assumed risk, it is immaterial how much Care he exercised in the performance of his duties to avoid the injury, since that fact could in no respect make the master liable therefor. The effect of such a limitation upon the charge would have been to tell the jury that appellee assumed the risks ordinarily incident to his employment, provided he exercised ordinary care to avoid them. Such a charge would be applicable upon an issue of contributory negligence, but that issue not being in the ease, and the only question submitted being whether the order to drop the tie was negligence, the matter contended for by appellant had no place in the charge.

It is next urged that the court erred in not submitting to the jury whether appellee’s injuries were due to an aceident-. Accident was pleaded,. but, in our opinion, the evidence wholly failed to raise the issue. The single act of the foreman in ordering appellee and his fellow servants to drop the tie was submitted to the jury, that they might determine whether same was negligence or not. Obviously, if the injuries resulted from giving that order, as found by the jury, it was not the result of an accident.

Further, conceding for the purpose of the discussion only that the evidence raised the issue, and that the court failed to instruct thereon, it is nevertheless not reversible error, since appellant failed to request submission of that defense. It is a well-settled rule that, if the court fails to submit such defensive matter to the jury, it is the duty of the defense to request same, and, failing to do sp, the case will not, on that account, be reversed.

It is next urged under several assignments that the giving of-the order to drop the tie was not the proximate cause of the injury; but that, as matter of fact, the proximate cause of the injury was the intervening act of appellee’s fellow servants in dropping the tie. We have stated the facts which transpired after the order to drop the tie was given, which was, in effect, a literal compliance by appellee’s fellow servants therewith. As'we have said, it was a question of fact whether, in the light of the situation of the parties and the attending circumstances, appellant’s foreman ought to have foreseen, as a natural and probable result of Ms order, the consequences that ensued, and on that issue the jury found he should have so foreseen, and included in that finding under the rule is the further one that the foreman should in like manner have anticipated the identical intervening agencies that contributed to appellee’s injuries. Eor, as said, in effect, by our Supreme Court: “The intervention of an Independent agency bringing about the result does not. necessarily render the original cause remote, but bears more directly on the question whether the injury ought, under all the circumstances, to have been foreseen, and, where the latter fact appears, the original negligent act ought to have been deemed actionable.” T. & P. Ry. Co. v. Bigham, 90 Tex. 223, 38 S. W. 162. Thus, under the rule stated and the finding of the jury, there was no error in submitting as an act of negligence appellant’s order in reference to the cross-tie.

It is next urged that the verdict of the jury is excessive. This assignment, of course, attacks the sufficiency of the evidence to sustain the verdict of the jury, and our interference with the verdict is controlled by the same rules that apply to our right to disturb any other issue of fact. We have carefully examined the testimony in reference to appellee’s injuries, and, without attempting to set out the same and apply it to the verdict, we have concluded, upon such examination, that the testimony is sufficient to support the verdict, and is not of such character as to justify us, in the exercise of the narrow discretion we possess in such matters, to set the verdict aside.

It is next urged through the medium of attack upon the court’s main charge, as well as the court’s refusal of certain special charges, that the court erred in refusing to submit to the jury whether or not the- tie fell as the result of the negligence of appellee’s fellow servants, although no proposition to that effect is contained in appellant’s brief. Since the common-law rule that the master is not liable for the negligence of a fellow servant while engaged in the service shown by the evidence in this case no longer prevails in this jurisdiction, the refusal to instruct the jury on that issue presents no error.

All other assignments but present in different form the issues already discussed, and for that reason same will be overruled.

The judgment is affirmed.


source: Caselaw Access Project

author: PHILLIPS, J.

license: Public Domain

text:
    FIRST NAT. BANK OF SHREVEPORT v. CITY NAT. BANK.
    (No. 2319.)
    (Supreme Court of Texas.
    May 6, 1914.)
    1. Banks and Banking (§ 171) — Collection —Negligence.
    Where a bank to which drafts had been sent for collection forwarded them to the drawee bank, which marked them paid, but did not remit the funds, it was guilty of negligence in failing to make inquiries for over a month, at the end of which time the drawee bank failed.
    [Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §§ 597-617; Dec. Dig. §171.]
    2. Banks and Banking (§ 171) — Collections — Agents.
    Where a bank notified a depositor for whom it made collections that it would not be liable for the negligence of correspondents to whom negotiable paper might be transmitted for collection, and that was the custom among banks, it is. not liable for the negligence of a correspondent ; its liability ceasing when it uses due diligence in the selection of agents for collection.
    [Ed. Note. — For other eases, see Banks and Banking, Cent. Dig. §§ 597-617; Dec. Dig. 171.]
    3. Banks and Banking (§ 171) — Collections — Negligence.
    Where a bank holding drafts for collection transmitted them to its correspondent, who gave the sending bank credit for their amount, the sending bank was not guilty of negligence in failing to make inquiry as to whether the drawee had paid them, where the correspondent bank had been notified to protest the drafts in case of nonpayment.
    [Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §§ 597-617; Dec. Dig. 171.]
    4. Banks and Banking (§ 171) — Collections — Mode oe Collection.
    Where a bank was directed to protest drafts in case of nonpayment, and the drawee was the only bank in the town, it was not negligence to send the drafts direct to the drawee, which was then in good standing; it being the custom in that locality for the drawee itself to make the protest in case of nonpayment, and it appearing that express companies would not handle protest collections.
    [Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §§ 597-617; Dec. Dig. § 171.]
    Certified Questions from Court of Civil Appeals of First Supreme Judicial District.
    Action by the First National Bank of Shreveport against the City National Bank of Galveston, which impleaded the Stockyards National Bank of Ft. Worth. From a judgment in justice court for plaintiff and for defendant over against the impleaded hank, defendant appealed to the county court, and, from a judgment there for defendant, plaintiff appealed to the Court of Civil Appeals, which certified questions to the Supreme Court.
    Questions answered.
    P. A. Drouilhet, of Galveston, for appellant. Stewarts, Geo. T. Burgess, and. J. E. Quaid, all of Galveston, for appellee.

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

   PHILLIPS, J.

The certificate of the honorable Court of Civil Appeals for the First District and the questions thereunder propounded are as.follows:

“In this case the First National Bank of Shreveport (which will be hereafter designated as the Shreveport Bank) sued the Cit$ National Bank located at Galveston (which will be designated as the Galveston Bank) to recover the amount of three several drafts, aggregating $326.32, less a credit of $135.52, on the Edgewood National Bank, which were sent by the Shreveport Bank to the Galveston Bank for collection. The suit was instituted in the justice court. The Galveston Bank brought in the Stockyards National Bank of Ft. Worth (hereafter designated the Ft. Worth Bank), to which it had sent the drafts for collection, and by which they had been sent to the Edgewood Bank, and prayed for judgment over against said bank in case of a recovery against it. A trial in the justice court resulted in a judgment against the Galveston Bank in favor of plaintiff, and in favor of the Galveston Bank against the Ft. Worth Bank. An appeal to the county court resulted in a judgment in favor of the Galveston Bank and the Ft. Worth Bank, upon a peremptory instruction to the jury. The Ft. Worth Bank filed its plea of privilege to be sued in Tarrant county, which was taken under advisement by the county court, but was not ruled upon; the court rendering judgment in favor of that bank as to the demand of the Galveston Bank against it, upon the rendition of the judgment in favor of the Galveston Bank as against the claim of the Shreveport Bank. From the judgment, the Shreveport Bank prosecutes this appeal.
“Appellant, having made no claim against the Ft. Worth Bank, and consequently not being entitled to any relief against it, on its pleadings, cannot complain of the judgment in favor of that bank against the claim of the Galveston Bank. The case as presented is limited to the judgment in favor of the Galveston Bank as to the claim of the Shreveport Bank against it.
“It is stated in appellant’s brief, and the evidence shows such to be the fact, that the only disputed facts are as to the sending and receipt of two certain letters, one on January 20 or 21, 1909, and the other on October 30, 1908, both of which, it is claimed by appellee, were written and sent by it to the Shreveport Bank on the dates named, but which appellant claims never to have received, and evidence in support of such contentions was- introduced by the parties respectively. Omitting the facts with regard to the sending and receipt of these two letters, which we do not deem material, the undisputed evidence discloses the following facts:
“About May 27, 1908, the Shreveport Bank entered into an agreement with the Galveston Bank, by the terms of which the former was to keep with the latter, on deposit, not less than $60,000, upon which-the latter bank was to pay 2 per cent, interest. The Galveston Bank was to collect all oí the Texas business of the Shreveport Bank at par, by which we understand without expenses to the Shreveport Bank. In pursuance of this arrangement appellant sent to appellee daily its Texas collections, aggregating several thousand dollars in amount, and many different items each day. Each day the receipt of these items was acknowledgéd by appel-lee on postal cards, using a printed form containing the following statement: ‘Due diligence will be observed in the selection of banks or agents for the collection of all paper out of the city; but this bank will not be responsible for the failure or negligence of such bank or agent.’ There is no question that this statement was observed by appellant. About the time a similar arrangement was entered into between appellee and the Ft. Worth Bank, under which appellee was to keep a certain amount on deposit with the Ft. Worth Bank, which was to pay interest on the same, and in consideration thereof to do a similar collecting business for appel-lee, as to a part of its business in certain territory, free of charge. Under this arrangement it was customary, which custom was general and well understood among bankers, including appellant, to enter a credit of items received from the sending bank, with the understanding that such credits should be canceled if the item wás not paid.
“On December 2d and 3d appellant sent to appellee for collection the three small drafts referred to, drawn on the Edgewood National Bank, located at the town of Edge-wood, in Van Zandt county, Tex. These items were received by appellee and at once entered to the credit of appellant and promptly transmitted by appellee to its correspondent, the Ft. Worth Bank. Appellee was instructed to protest these drafts if not paid, and these instructions it transmitted to its correspondent,. the Ft. Worth Bank. Under the arrangement between these banks referred to it was not expected by appellant that the cash should be remitted to it when collected, nor by appellee that such should be done by its correspondent at Ft. Worth. These drafts reached the Ft. Worth Bank on the 5th December, and were at once transmitted to the Edgewood National Bank, the drawee, for collection and returns, with instructions to protest if not paid, and reached the Edgewood Bank on December 7th, when they were marked ‘Paid’; but no returns were made to the Ft. Worth Bank, nor, so far as we can find from the evidence, was there any inquiry made by the Ft. Worth Bank of the Edgewood Bank prior to its failure. In addition to the particular instructions with regard to these drafts, the Edgewood Bank had been previously instructed by the Ft Worth Bank to collect and remit promptly all money collected for it. The Edgewood Bank failed and closed its doors on January 13, 1909. Its business was wound up by receivers, and a dividend of $135.52 was sent to the Ft. Worth Bank, which was transmitted to appellee and by appellee to appellant.
“Up to the day of its failure the Edge-wood Bank .was in good credit and standing, and was regarded by banks and bankers and business men generally as a solvent and reliable bank. It was the only bank in the town of Edgewood. There were several reliable banks in towns nearer Edgewood than Ft. Worth, one within seven miles, and others at varying distances. Edgewood is nearer Shreveport than Galveston, and there is direct communication between the towns by railroad.
“Immediately upon receiving notice of the failure of the Edgewood Bank the Ft. Worth Bank, on the 18th or 19th of January, notified appellee. Appellee claims to have at once, on the 19th or 20th of January, written and mailed a letter to appellant notifying it of the failure, and introduced evidence of this fact; but appellant denied it had received this letter and supported the denial by testimony. It is, however, undisputed that on February 27th appellant received such notice from appellee. It is stated in appellant’s brief that, ‘in view of the admitted fact that the bank of Edgewood failed January 13th, this difference is not material.’
“On receipt of the drafts by the Ft. Worth Bank it entered the amounts to the credit of the Galveston Bank, which credit was canceled upon failure of the Edgewood Bank. The credit to appellant by appellee was carried on its books until some time in March, 1909; but in the letter of February 27th appellee stated that, the drafts not having been paid, the credits would be canceled. In this letter of February 27th appellee called attention to a letter of January written by it to appellant notifying the latter of the nonpayment; but in the reply of appellant to this letter it stated that its records did not show this letter of January.
“The undisputed evidence, coming from various bank officials, including the cashier of appellant, shows that at and prior to the transactions in controversy there was a general custom and understanding among bankers in Texas and elsewhere that, when one bank sent to another bank items to be collected out of the town or city of the receiving bank, such bank was not expected to collect such items itself, but through other agencies to be selected by it It was further shown to be the general and recognized custom, when the bank upon which such collections were drawn was the only bank in the town, and was in good credit and standing, to send the collections direct to such drawee bank. This was the custom, notwithstanding the drafts or cheeks were to be protested upon nonpayment, and in sueli case it was eustoinary for tlie drawee bank to protest, if not paid, and this was generally done. The Edgewood Bank was the only bank in the town. Express companies would not take collections subject to protest, and it was the general custom for banks and bankers to collect only through other banks. It was also the general custom for banks, upon receipt of checks or drafts which, under this general custom, were to be forwarded for collection through other banks, to credit the same to the sender upon receipt, subject to final payment.
“The business between appellant and ap-pellee was handled in -this way, and appellant’s cashier testified to these various customs as general, and as controlling the business of banks with each other, and that in sending the drafts in question it expected that appellee would handle this business in the usual and customary way, and not otherwise. After transmitting these drafts to its correspondent, appellee made no further inquiry as to their collection until after the failure of the Edgewood Bank. The Stockyards National Bank was and is a solvent and reliable bank, in good credit and standing, and in every way responsible.
“The question presented is one of great importance to the banking interest, which we think should be definitely settled by the Supreme Court. The authorities are in some confusion. Our jurisdiction in this case is final. For these reasons, we deem it proper to certify to your honorable court the following questions:
“First. Was the Stockyards National Bank, correspondent of the City National Bank, negligent in its dealings with these drafts?
“Second. Was the 'City National Bank liable to the Shreveport Bank for the negligence, if any, of its correspondent, the Stockyards National Bank?
“Third. Was the City National Bank negligent itself in failing to make inquiry of its correspondent as to the collection of the drafts, or in sending these drafts for collection to the Stockyards National Bank, with the knowledge that the latter bank would send them to the drawee bank?”

In response to the first question we think it is manifest, under the statement of the case made by the Court of Civil Appeals, that the Stockyards National Bank was negligent in failing to make inquiry of the Edge-wood National Bank in regard to the collections or a reasonable effort to obtain from that bank the remittance for them. The cheeks were not sent by it to the Edgewood National Bank for credit to its account upon collection, but for collection and returns, and under further established instructions to promptly remit direct to it for all collections. It received the items from the appellee on December 5th, and immediately forwarded them to the Edgewood Bank, by which they were received and paid on December 7th. The Edgewood Bank did not fail until January ISth, more than a month following, during which time it apparently continued to transact its business in regular course. The checks not having been protested or returned, the Stockyards National Bank was necessarily aware, within a few days after it had forwarded them, that the Edgewood Bank had not complied with its instructions to make remittance, and under the circumstances due care would have prompted some effort to learn the cause and obtain the returns. According to the foregoing statement, however, it did nothing in the matter beyond forwarding the checks to the Edgewood Bank, apparently withdrawing its care from the transaction at that initial stage of its own relation, which, of course, was negligent conduct. We do not think that under the circumstances stated it should be held guilty of negligence as a matter of law in sending the checks for collection to the bank upon which they were drawn, for reasons to be stated under the third question.

There is a marked diversity of view in the authorities upon the question whether a correspondent bank, to which another bank receiving from the owner negotiable paper for collection transmits it for collection, is the agent of the owner or the forwarding bank, and whether the latter may be held for its negligence in such transactions. It has not bgen decided by this court, though reference was made to it and the state of the authorities upon it in Bank v. Weiss, 67 Tex. 331, 3 S. W. 299. That, in the absence of a special contract or established and understood usage to the contrary, the correspondent bank is the agent of the forwarding bank, and not of the owner or holder of the paper delivering it to the forwarding bank, is the general rule adhered to by many courts of eminence in this country, among them the Supreme Court of the United States. The contrary holding has been as strongly announced and as firmly maintained by other courts of distinction, and has upon its side the weight of Chief Justice Marshall’s opinion in Bank v. Triplett, 1 Pet. 25, 7 L. Ed. 37, and Chancellor Walworth’s notable dissenting opinion in Allen v. Merchants’ Bank, 22 Wend. (N. Y.) 215, 34 Am. Dec. 289. An extended discussion of the question, with the authorities supporting each view, may be found in Morse on Banks and Banking, §§ 268-287; that author giving his approval to the negative position.

But this case does not present the question in its broad and general nature. It arises here under conditions which would necessarily qualify the operation of even the rule affirmed by those courts that hold the correspondent bank to be the agent of the forwarding bank, and the latter liable for its neglect. There is probably no stronger authority in favor of that rule than Exchange National Bank v. Third National Bank, 112 U. S. 276, 5 Sup. Ct. 141, 28 L. Ed. 722. Yet in that case it is said: “And, while the rule of law is thus general, the liability of the bank may be varied by consent, or the bank may refuse to undertake the collection. It may agree to receive the° paper only for transmission to its correspondent, and thus make a different contract, and become responsible only for good faith and due discretion in the choice of an agent.” And in Morse on Banks and Banking it is stated (section 269): “If there is an express contract upon the matter of the first bank’s responsibility, of course the question will be governed by it.” And in section 270: “Usage may determine the question. If the law has not already been settled by judicial determination, so as to exclude any subsequent evidence of uságe to subvert it, the bank may absolve itself from liability for the acts of agents other than itself, or the customer may fix such liability upon the bank, by showing, respectively, that such is the established usage and understood custom in the place where the bank, the extent of whose duty and liability is in question, is situated.”

Here it was shown, not only that there prevailed in Texas and elsewhere a general and well-understood custom for banks res-ceiving collections upon other points not to effect the collection themselves, but through the agency of other banks selected by them, a custom known to appellant at the time and expected by it to be pursued in this transaction, but that these particular checks were intrusted by it to the appellee for collection with distinct notice, previously given it by the latter and reiterated in this instance, “that it would observe due diligence in the selection of banks or agents for the collection of all paper out of the city, but would not be responsible for the failure or negligence of such banks or agents.” The appellee would have had the undoubted right to decline to handle the paper except upon such understanding of its duty and liability. It was as clearly entitled to attach such condition to its undertaking, and no sound reason can be urged why it should be denied effect as to a party who understood it and so acted as to create assent to and acceptance of it. By forwarding the paper to the appellee with knowledge of this distinct limitation of its liability, the appellant expressed its agreement to the terms of the limitation. It is therefore in the position of having in advance agreed to the exemption of appellee from liability for any negligence of its correspondents in the course of the collection, and accordingly cannot recover of it on account of such negligence.

The second question is answered in the negative.

Replying to the third question, we do not think under the circumstances appellee should be held guilty of negligence for merely failing to make inquiry of its correspondent in respect to the collection, or in sending the checks to it with knowledge that it would send them to the bank upon which they were drawn. The checks were sent by it to its correspondent at Ft. Worth, not for returns, but for credit, and they were credited to its account by the latter bank immediately on receipt. They were sent with instructions to protest in the event of nonpayment, a regular method of affording notice in case of dishonor for any cause. It does not appear that appellee had any notice that the collection had failed prior to the dosing of the Edgewood Bank. Under such circumstances we think appellee had the right to assume that the checks had been paid, and to act accordingly.

The Stockyards National Bank, appellee’s correspondent at Ft. Worth, was a reliable bank in good standing, and there was no negligence in merely sending the checks to it. The Edgewood Bank, the drawee in the cheeks, was the only bank at Edgewood, and was in good standing up to the time of its failure. The checks were to be protested at Edgewood if not paid. The express company there, apparently the only other public agency for making the collection, would not handle protest paper at all. The established custom, under this somewhat extreme condition, was to send the checks to the drawee bank if it was in good standing, and the instructions to protest were generally observed by such banks. Appellant was aware of this general custom and did not expect this business to be handled differently. Except by the adoption of an extraordinary method, which was not incumbent upon it, it seems to us that in making the collection the Ft. Worth Bank had no other alternative but to send the cheeks to the drawee bank, and, as that bank was in good standing at the time, it should not be deemed guilty of negligence on that account. Wilson v. Bank, 187 Ill. 222, 58 N. E. 250, 52 L. R. A. 632. It follows that ap-pellee was not negligent in forwarding the cheeks to its correspondent with knowledge that it would in turn forward them to the bank upon which they were drawn. The third question is therefore answered in the negative.


author: ¡PHIDLIPS, J.

text:
    R. W. WILLIAMSON & CO. v. TEXAS & P. RY. CO.
    (No. 2333.)
    (Supreme Court of Texas.
    May 6, 1914.)
    Limitation or Actions (§ 21) — Destruction or FREIGHT — ACTION AGAINST CARRIER.
    An action for the value of 30 bales of cotton delivered to defendant with other cotton for shipment is one for breach of contract, where based upon a bill of lading covering the whole shipment, though plaintiff was advised, shortly after the delivery of the rest, that defendant’s failure to deliver the 30 bales was due to their destruction by fire; and hence the action is not barred by the two-year statute of limitations.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 90-99; Dec. Dig. § 21.]

      Error to Court of Civil Appeals of Fifth Supreme Judicial District.
    Action by R. W. Williamson & Co. against the Texas & Pacific Railway Company. A judgment for defendant was affirmed by the Court of Civil Appeals (138 S. W. 807), and plaintiff brings error.
    Reversed and remanded.
    D. A. Eldridge, of Dallas, for plaintiff in error. T. B. McCormick and T. D. Gresham, both of Dallas, for defendant in error.

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

   ¡PHIDLIPS, J.

The suit was for the recovery of the value of 30 bales of cotton, based upon a bill of lading, issued by the defendant in error to W. A. Arthur & Co., and by that firm for a valuable consideration indorsed to the plaintiffs in error, for the transportation from Detroit, Tex., and delivery at Diverpool, England, of 104 bales of cotton, the shipment to be over the line of defendant in error from Detroit to New Orleans, La., and via the Leyland Steamship Line from New Orleans to Liverpool. While the cotton was in the possession of the defendant in error, and in the course of the transportation from Detroit to New Orleans, 30 bales were destroyed by fire. The remaining 74 bales were duly delivered at New Orleans to the steamship line, which at the time issued to the plaintiffs in error, the then holders of the original bill of lading and owners of the cotton, its marine bill of lading for their transportation to Liverpool, this part of the original shipment being thereafter duly delivered at Liverpool, whereupon both bills of lading were surrendered, with a notation made upon the original bill of lading of the defendant in error indicating the delivery to the steamship line of only 74 bales of the original shipment. It was found by the honorable Court of Civil Appeals that the plaintiffs had notice of there being a shortage of 30 bales in the shipment at the time of the delivery of the cotton to the steamship line at New Orleans, that the consignee of the cotton had notice to the same effect when the bills of lading were surrendered at Liverpool, but that plaintiffs in error had no actual knowledge of the destruction by fire of the 30 bales in question while in transit to New Orleans, until a later time.

The suit was filed more than two years after the destruction of the 30 bales, and after the plaintiffs in error acquired actual knowledge of that fact, but within four years from the date they acquired such knowledge, and that accordingly the cotton could not and would not be delivered in compliance with the obligation of the bill of lading. The trial court sustained the plea of limitation interposed by the defendant in error upon the view that the two-year statute of limitation applied to the action. The honorable Court of Civil Appeals affirmed the judgment upon the same ground.

As determined by the allegations of the petition the suit was clearly one for the breach of the contract of the defendant in error as evidenced by its bill of lading, by which it became obligated to make delivery of the full number of bales constituting the shipment; and the character of the action was not changed, we think, to that of conversion by the facts we have recited in respect to the plaintiffs in error having notice of the shortage in the shipment when it reached New Orleans, and, becoming advised, shortly after the delivery of the 74 bales at Liverpool, that the failure to make delivery of the 30 bales was due to their destruction by fire, to which the Court of Civil Appeals attached importance in its decision of the case. The question is controlled by the holding announced by this court in the case of Elder Dempster & Co. v. Railway Co., 105 Tex. 628, 154 S. W. 975, decided since the decision of the ease by the Court of Civil Appeals, to the effect that in suits of this character the two-year statute of limitation is inapplicable.

The judgments of the district court and the Court of Civil Appeals are accordingly reversed, and the cause is remanded to the district court for further trial.

Reversed- and remanded.


author: BROWN, C. J.

text:
    HOUSTON & T. C. RY. CO. v. FOX et al.
    (No. 2618.)
    (Supreme Court of Texas.
    May 13, 1914.)
    1. Evidence (§ 317) — Hearsay — Declarations of Parties.
    In an action for damages for personal injuries to plaintiff’s wife while she was a passenger on defendant’s train, declarations by plaintiff to others that his wife had been injured on a trip were hearsay and inadmissible.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 11744-1192; Dec. Dig. § 317.]
    2. Appeal and Ekeob (§ 1050) — Harmless Error — Admission of Evidence.
    Where the proof of the accident and injury rested solely upon the testimony of plaintiff’s wife, and the hearsay statements of the husband corroborated her testimony, the admission of those statements in evidence was prejudicial.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dee. Dig. § 1050.]
    3. Damages (§ 166) — Evidence—Possibility of Injury.
    The admission of testimony by a witness for the defendant on cross-examination that it was conceivable that plaintiff’s wife had received the injuries of which she complained, although he found no such injuries at the time he examined her,for life insurance after the accident,. was erroneous, as permitting plaintiff to show á possibility of injury as a basis for the. recovery of damages.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 478, 479, 481; Dee. Dig.. § 166.]
    4. Witnesses (§ 414) — Statements of Injured Person — Recent Fabrication — Corroboration.
    Where the defendant introduced evidence that plaintiff’s wife made no complaint of the injuries for which recovery was sought, for the purpose of showing that her claim was a recent fabrication, plaintiff can introduce statements by his wife to others at about the same time, which tended to prove the occurrence of the accident and the injury.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1287, 1288; Dec. Dig. § 414.]
    5. Witnesses (§ 414) — Statements oe Injured Person — Recent Fabrication — Corroboration.
    Such statements should be confined to those showing the occurrence of the accident and the resulting injury; and statements as to the circumstances of the accident, including the time and manner in- which plaintiff’s wife was injured, are inadmissible.
    ¡ . [Ed.-Note. — For other cases, see Witnesses, Cent. Dig. §§ 1287, 1288; Dec. Dig. § 414.]
    6. Evidence (§ 220), — Admissions—Injuries to Passenger — Demand eor Settlement.
    In an action for injuries sustained by plaintiff’s wife while a passenger on defendant’s train, evidence that the plaintiff had made no demand for settlement before instituting suit is immaterial, since no demand was necessary, and its exclusion was proper.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 771-785; Dec. Dig. § 220.]
    Error to Court of Civil Appeals of the Fifth Supreme Judicial District.
    Action by R. D. Fox and another against the Houston & Texas Central Railway Company. A judgment for the plaintiff against the Houston & Texas Central Railway Company was affirmed by the Court of Civil Appeals (156 S. W. 922), and the railway company brings error.
    Judgment of the trial court and of the Court of Civil Appeals reversed, and cause remanded to the district court.
    Baker, Botts, Parker & Garwood, of Houston, for plaintiff in error. Evans & Carpenter, of Greenville, for defendants in error.

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

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

   BROWN, C. J.

Judge Talbot made a very clear statement of the facts disclosed by the evidence which we adopt as follows: “Ap-pellee Fox brought this suit against the Gulf, Colorado & Santa Fé Railway Company and the appellant, Houston & Texas Central Railway Company, to recover damages for personal injuries sustained by his wife, Mrs. Mary Fox, while she was a passenger en route from Celeste, Tex., to Bertram, Tex. Each of the defendants answered by general demurrer, general denial, and pleas of contributory negligence on the part of the ap-pellee’s wife. A jury trial resulted in a verdict and judgment in favor of appellee against the appellant for the sum of $10,000, and in favor of the Gulf, Colorado & Santa lié Railway Company. From the judgment against it the appellant appealed. "No question is raised about the' pleadings, and further statement of them is unnecessary. The evidence is sufficient to show that on or about the 22d day of December, 1910, Mrs. Fox, ap-pellee’s wife, bought a through ticket at Celeste, Tex., entitling her to passage from that place over the road of the Gulf, Colorado & Santa Fé Railway Company to Dallas, thence over appellant’s road to Hearne, Tex., where Mrs. Fox changed cars to continue her journey. As the train approached Hearne, which was about 2 o’clock in the night, the station was announced and the train stopped. Mrs. Fox, accompanied by her little boy, about 10 or 11 years of age, arose from her seat and started to leave the train. After taking a step or two toward the car door, the train was negligently moved with a sudden jerk or lunge forward and then backward almost at the same instant of time, which threw Mrs. Fox off her balance and to the floor of the car, seriously injuring her. She testified: T was thrown down, and I fell forward in kind of a careen. I lay there some little bit of time. I felt a severe pain strike me, especially in the small of my back, and it seemed to me like it run all over me, and it seemed to me like it hurt me all over; I lay there for some bit of time, kind of numb or something; at the same time I didn’t hardly realize what was going on for some little bit of time; my little boy came to me, and he had hold of me the first thing I knew, and he says “Ma, are you hurt?” I told him * * * I was nearly killed.’ Mrs. Fox further testified that her son helped her up, and that they went out of the car and into the station house, where she stayed until about 11 o’clock forenoon of that same day, when she took another train and continued her journey to Bertram, still suffering from her injury. Mrs. Fox was 51 years of age at the time of the accident, and was a strong and vigorous woman for her age.” The Court of Civil Appeals affirmed the judgment of the trial court, from which judgment the writ of error was granted.

The plaintiff was permitted, over proper objections, to prove by W. P. Byers that the plaintiff told him (Byers) that: “Mrs. Fox got hurt and was not in good health; then when she got hurt she was on á visit somewhere.” Over like objections of defendant J. B. Ellison testified that “in the spring of 1911 he saw and talked to Fox about selling him some liniment,” and “plaintiff said he wanted the liniment, as his wife had taken a.trip and got hurt and wanted liniment.” This evidence tended to corroborate Mrs. Fox in her statement of the accident and injury. It was hearsay pure and simple, and in this state of the evidence was material; therefore the error of admitting it is reversible error. 'The facts of the accident were proved by Mrs. Fox only, and no other person on the train is shown to have known of the severe lurching of the train. The jury would have been justified in finding against her evidence. The effect of both and each statement was to corroborate Mrs. Fox’s evidence.

Dr. Pierson was a witness for defendant, and testified that he made examination of Mrs. Fox on her application for life insurance, and on cross-examination plaintiff’s counsel propounded this question: “She [Mrs. Fox] may have been 'suffering some pain at that time from the hurt she had that might have afterwards resulted ih the condition she is in now?” The witness answered, “It is conceivable, I suppose.” Counsel for defendant moved to strike out the question and answer, which motion the court overruled. It would be useless to discuss the- proposition that the answer of Dr. Pierson could prove nothing more than that it was barely possible for such result to follow. The rule settled in this court is: “To justify the assessment of damages for apprehended future consequences of a present injury, it is not enough that such consequences may occur, but there must be a reasonable probability — that is, it must be reasonably certain that such consequences will ensue.” G., C. & S. F. Ry. Co. v. Harriett, 80 Tex. 82, 15 S. W. 558. Also Lentz v. City of Dallas, 96 Tex. 267, 72 S. W. 59; G., H. & S. A. Ry. Co. v. Powers, 101 Tex. 164, 105 S. W. 491.

The error in admitting the declarations of plaintiff and the grosser error of permitting the proof of possible injurious results require a reversal of the judgments of the district court and of the Court of Civil Appeals.

The effect of the defense was to charge Mrs. Fox with having fabricated the case, and defendant sought to sustain, by the evidence of the employés on the train at the time, that they knew nothing of the occurrence when it occurred, and that Mrs. Fox did not mention the fact at times and under circumstances when she should have done so, and plaintiff sought to sustain her under the rule stated in Wigmore on Evidence, vol. 2, § 1129, as follows; “The charge of recent contrivance is usually made, not so much by affirmative evidence, as by negative evidence that the witness did not speak.of the matter before, at a time when it would have been natural to speak; his silence then is urged as inconsistent with his utterances now, i, e., as a self-contradiction. The effect of the evidence of consistent statements is that the supposed fact of not speaking formerly, from which we are to infer a recent contrivance of the story, is disposed of by denying it to be a fact, inasmuch as the witness did speak and tell the same story. This use of former similar statements is universally conceded to be proper; though occasionally it is difficult to apply the principle to the facts.”

The defendant proved by Fizer that Mrs. Fox stayed at his house the night of December 23, 1910 (the next night after she claimed to have been injured), and that Mrs. Fox spoke of having been in good health for years, and seemed then to so be. Spoke of the long time she had to “lay over” at Hearne. At family prayer said she had been “fortunate in not having any accident on her trip.” This witness was corroborated by other witnesses. Defendant said in effect, Because you did not tell of your injuries and the accident at McNeil, you are guilty of having manufactured the story. To which'Mrs. Fox replied by witnesses, “I told it to my sister Mrs. Gox the next day at Bertram,” and made proof by Mrs. Cox and others that she did relate the facts of the accident. Defendant proved by a number of the neighbors of Mrs. Fox (the names are unimportant) that when Mrs. Fox returned to her home they met her and associated with her as usual with neighbors, and that Mrs. Fox did not speak of the accident at Hearne, 'or of any injury, until a short time before this suit was instituted. Plaintiff testified that he met his wife when she arrived at Celeste on her return from her visit, and she told him of the occurrence and her injuries.

Defendant proved by Dr. Pierson that after the date of the accident he examined Mrs. Fox on her application for life insurance, and that she answered in substance that she was in good condition, and did not say anything of the occurrence at Etearne. Plaintiff proved that Mrs.. Fox applied to one Curtis, for life insurance, and told him that she had been hurt. That was the application on which Dr. Pierson examined her. Defendant says because Mrs. Fox did not speak of her, injuries at McNeil to the Fizer family, at her home to her neighbors, nor to Dr. Pierson, she must be discredited. When she offered proof that she did speak to her sister at Bertram, to her husband at Celeste, and to Curtis, the agent who took her application, her statements are objected to as self-serving, therefore not admissible. If the defendant had not charged Mrs. Fox with fabricating her claim, such declarations would not have been admissible. Defendant’s proposition is that because Mrs. Fox did not speak of the accident on certain occasions, she is guilty of recent contrivance, and that it cannot be proved that she did speak of the matter at another time because her declarations are self-serving. There is much authority directly on the question, for courts uniformly hold that under such circumstances her declarations as to the occurrence of the accident were admissible if made near the time when it is alleged and proved that she should have spoken, but did not - speak. It is claimed that Mrs. Fox’s declarations were not admissible. The admissibility of that evidence can be determined by stating the issue to be proved or disproved. The defendant below asserted that there was no accident nor injury to Mrs. Fox; that she had fabricated the whole matter. To sustain the charge evidence was offered to prove that on different occasions when Mrs. Fox should have spoken of the accident she was silent. To meet these charges she proved that at a time near to that mentioned she did speak of the fact of the accident to her, giving the time and place. By this evidence the issue of fabrication was met. But in addition to the fact of the injury her statements of circumstances of the accident, including the manner in which she was injured, were admitted over the objections of the defendant. The declarations which went beyond the facts of the accident were not relevant to the issue of fabrication^ -and should not have been admitted; they were self-serving declarations, therefore inadmissible. We will not undertake to analyze the evidence and state the portion not admissible, but the trial court at another hearing will confine the declarations of Mrs. Fox to such as tends to prove the occurrence of the accident and injury. It is difficult to be specific on this question, and much must be left to the trial judge.

The case of Ætna Insurance Company v. Eastman, 95 Tex. 34, 64 S. W. 863, is not in conflict with our decision in this case. In that case the declarations of Eastman were in support of his evidence given at the trial of an issue of fact upon which his recovery depended. Mrs. Fox’s declarations as proved simply met tie charge of recent fabrication, and were called for by the evidence offered by the defendant. The distinction is plain. It is unnecessary for us to comment on the Eastman Case.

The plaintiff in error complains of the action of the trial court in refusing to permit it to prove by plaintiff when testifying that he made no demand of the railroad company for settlement before instituting the suit. No obligation rested upon plaintiff to make a demand before instituting suit; the assignment does not present an instance in which the plaintiff failed to speak when he was in a position that called upon him to make his claim known; it was not the same as the position of Mrs. Fox when it was charged that she failed to speak of the accident. If admitted, the fact that plaintiff made no claim before suit would not tend to prove any fact material to the defense.

The judgments of the Court of Civil Appeals and of the district court are reversed, and the cause is remanded to the district court of Hunt county.


text:
    TWEED v. WESTERN UNION TELEGRAPH CO.
    (No. 2329.)
    (Supreme Court of Texas.
    May 13, 1914.)
    1. Evidence (§ 132) — Similar Matters — Relevancy.
    In an action for injuries claimed to have affected plaintiff’s mind, evidence as to the ability of patients in an insane asylum to care for themselves, play billiards, keep up with the current literature of the day, and do the work of the institution, was irrelevant and should have been excluded, as it furnished no guide for determining plaintiff’s mental capacity.
    [Ed. Note. — For other cases, see Evidence, Dec. Dig. § 132; Insane Persons, Cent. Dig. § 7.]
    2. Evidence (§ 545) — Opinion Evidence-Competency— Competency op Experts — - Evidence op Competency.
    Where a witness’ capacity as an expert regarding insanity had not been attacked, evidence to prove him capable was irrelevant.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2360-2362; Dec. Dig. § 545.]
    3. Evidence (§ 481) — Admissibility — Conclusion op Witness.
    In a telegraph lineman’s action for injuries, the testimony of a witness that there was no danger for a lineman to go upon a pole and use a safety belt after he had heard the foreman say that it was all right, or, as he doubtless intended to testify, that such statement would satisfy the lineman that there was no danger, was inadmissible.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2248-2254; Dec. Dig. § 481.]
    $ Damages (§ 163) — Evidence — Presumptions — Mental SUFPERING.
    Mental suffering from personal injuries will be presumed in the case of an insane person, as well as a sane person, until such abnormal mental condition as prevents the party from experiencing mental suffering is proved.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 454^459; Dec. Dig. § 163.]
    Error to Court of Civil Appeals of Fifth Supreme Judicial District.
    Action by E. A. Tweed against the Western Union Telegraph Company. A judgment for plaintiff was reversed by the Court of Civil Appeals (138 S. W. 1155), and plaintiff brings error.
    Judgment of the Court of Civil Appeals affirmed, .and case remanded.
    Carden, Starling, Carden & Hemphill, of Dallas, and T. M. Campbell, of Palestine, for plaintiff in error. N. L. Lindsley and W. J. J. Smith, both of Dallas, for defendant in error.

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

   BROWN, C. J.

The application was granted because the judgment of the honorable Court of Civil Appeals, in reversing the judgment and remanding the case, “practically settled the ease.” We conclude that, if the trial court-should follow the law as declared in the opinion, it would result in a judgment against the plaintiff in error. The facts are not definitely in favor of either party as to authorize this court to enter judgment; therefore we affirm the judgment of the Court of Civil Appeals, and remand the case.

We make this statement of the facts: The plaintiff, Tweed, was in the employ of the telegraph company, and was seriously injured by the falling of a pole on which he was at work. It was charged that the pole was unsound, and the company negligent in furnishing it, therefore liable for the injury caused by the falling of the pole. The company defended upon the ground of the contributory negligence of the plaintiff in the manner of using the pole, ana also because plaintiff assumed the risk of using the defective pole. The law upon each of those-issues is so well settled that we cannot give aid to tlie court in another trial by discussing those rules. We conclude that the most effective aid we can render to the district court at another trial will be to review those issues of law which will probably arise again.

The first error pointed out by the honorable Court of Civil Appeals which we will notice was permitting Dr. Rosser to testify, over defendant’s objection, as follows: “Well, just roughly, I would say that out of 1,000 patients (meaning at the Terrell Insane Asylum) not over 25 or 30 of them would not be able to take care of a call of nature. The balance of them would be able to do it, and that proportion of them who are able to do it go out on their daily walks with one attendant to take care of 50 of them at a time. Many of them spend their time in the reading ward and playing billiards; many of them are expert billiard players. Probably 100 out of 1,000 keep up with the current literature of the day.” And in allowing said witness in the same connection to testify: “A great majority of the farming is done by the patients (meaning the patients at the Terrell Insane Asylum). The laundry and dairy are taken care of by the patients; they milk the cows and take care of the cows and of the milk; do the planting with an overseer. These are regular patients down there in the asylum. The trouble with them is they have either lowered their intelligence or are twisted on certain points.” So far as we can see from the opinion, the evidence was irrelevant, and should have been excluded. It furnished to the jury no guide for determining the mental capacity of plaintiff.

There seems to have been no attack upon Dr. Rosser’s capacity as an expert in regard to insanity, and there was no reason for admitting evidence to prove him capable. It was irrelevant, because there was no issue to which it could, apply. I. & G. N. Ry. Co. v. Lane (Civ. App.) 127 S. W. 1067; Rogers on Expert Evidence, p. 85. No comment is necessary or could elucidate the question.

It appeared from the court’s opinion that a witness was permitted, over defendant’s objection, to testify “that there is no danger for a lineman to go up - on a pole and use a safety belt on construction work after he has heard the foreman say it is all right.” There could be no doubt of the impropriety of such evidence, and its character excited in the mind of the writer doubt of the correctness of the statement in the record. Doubtless the witness testified or intended to testify that such statement would satisfy the servant that there was no danger. In either phase it was not admissible.

The honorable Court of Civil Appeals quotes from T. & P. R. R. Co. v. Curry, 64 Tex. 85, as follows: “The rule regulating pleading in this class of cases is thus stated: ‘The general allegation of damages will suffice to let in proof and to warrant recovery of all such damages as naturally and necessarily result from the wrongful act complained of; the law implies such damages— that is, damages of that sort — and proof only is necessary to show the extent and amount.’ * * * The rule, however, is satisfied when from the facts stated the law infers other fact or facts; for whatsoever the law infers from a given state of facts the adverse party is presumed to know, and must take notice of, whether it is specially pleaded or not. The law infers, when such injuries to the person are shown to have existed as are alleged and proved in this case, that physical pain resulted therefrom; for by common observation we know that in the ordinary operation of natural laws pain is a necessary result of such injuries, unless the condition of the injured person be abnormal, which will not be presumed. This is equally true as to mental suffering; for it is contrary to common experience and the laws of man’s existence and nature that any sane, healthy, and robust person by physical injuries may be made a cripple for life in a matter affecting his health, comfort, or capacity, without mental pain resulting from the changed condition.”

The Court of Civil Appeals concludes that from the use of the word “sane” the Supreme Court meant to hold that in ease of physical injury to an insane person there could not be mental suffering. This is not a sound construction of the language of the opinion. The court distinctly applied the same rule to mental as to physical suffering; each would be presumed from the injury, and no doubt physical pain in such cases would be suggested. Such abnormal mental condition as. would prevent the presumption of mental! suffering would be a matter of defense, which, must be proved and submitted as a fact.

There is no principle of law which would' authorize this court to say that one afflicted with melancholia could not experience mental’ anguish or any of the emotions which con-, stitute mental suffering. The question of1 damages for physical pain.and mental suffer-. ing is for the jury, and we know of no rule-of law which would deny either, unless the - defendant should prove such condition as . would authorize the jury to say that such presumed result did not arise from the physical injury. Surely no court has a right to . say that any character of insanity prevents a party from experiencing mental suffering, when such persons manifest an appreciation of physical pain.

The cause is remanded to the district;, court.


author: HARPER, C. J.

text:
    PUGH v. WERNER.
    (No. 334.)
    (Court of Civil Appeals of Texas. El Paso.
    April 30, 1914.)
    1. Appeal and Error (§ 219) — Review-Proceedings in Trial Court.
    Where findings of fact and conclusions of law are filed, but there are no exceptions to the findings or request for additional findings, the court of appeals will only inquire whether the pleadings sustain the judgment.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1315, 1317-1320, 1322, 1323; Dec. Dig. § 219.]
    2. Statutes (§ 267) — Constructions—Remedies and Procedure.
    Acts 33d Leg. c. 127, amending Rev. St. 1911, arts. 1827, 1829, 1902, providing for judgment as by confession in case a paragraph of an answer alleging matter in bar is not denied or excepted to, had no application to an amended answer filed prior to the date when the act took effect.
    [Ed. Note. — For other cases, see ’Statutes, Cent. Dig. §§ 350-359; Dec. Dig. § 267.]
    Appeal from Reeves County Court; H. N. McKellar, Judge.
    Suit by R. G. Werner against Spencer B. Pugh. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Spencer B. Pugh, of Pecos, for appellant. J. A. Buck, of Pecos, for appellee.

      Nor other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HARPER, C. J.

This suit was brought by appellee, R. G. Werner, against appellant, Spencer B. Pugh, and others, for the recovery of certain personal property. The other parties defendant having filed disclaimers, the case went to trial against Pugh alone. Ap-pellee’s petition contained the usual allegations necessary to recover for conversion of personal property. The appellee secured his writ of sequestration, and the property was levied on by the sheriff, and appellant re-plevied. Appellant answered by general demurrer, general denial, and specially pleaded that at the time the suit was filed the property sued for was in the possession of the district court of Reeves county by and through its receiver of the Arno Co-operative Irrigation Company in a suit instituted by said Werner; that at the time of institution of this suit the receiver had not been discharged; and that long after this suit was filed the district court by its order delivered the said property to appellant as the president of said corporation. Cause was tried by the court without a jury. Judgment rendered for the property, and, in the event it was not forthcoming, for $799 as the value thereof, etc.

The first and second assignments of error charge that .the court erred in rendering its judgment in favor of appellee and in not rendering judgment for the appellant because the undisputed evidence showed that at the .time of the institution of this suit appellant was not in possession of the property sued for, but that it was in the possession of a receiver of the irrigation company, appointed by the district court.

The trial court, upon request of appellant, filed findings of fact and conclusions of law. There is no finding among those filed by the court upon the question raised, but in the absence of -an exception to the findings as filed, and a request for additional findings, this court will only inquire into whether the pleadings justify the judgment, and we so find. Continental Ins. Co. v. Milliken, 64 Tex. 46; Gardner v. Watson, 76 Tex. 25, 13 S. W. 39; Oldham v. Medearis, 90 Tex. 506, 39 S. W. 919.

The third assignment charges that “the court erred in overruling appellant’s motion for judgment by confession upon the ground that paragraph No. 4 of appellant’s answer had not been excepted to or denied as required by Acts of 33d Leg. amending articles 1827, 1829, and 1902, p. 256. This statute has no application to this case for the reason that the answer of appellant upon which he relies was filed before the statute went into effect. The amended answer relied upon was filed in July, 1913, and the statute invoked went into effect September 1, 1913.

There being no error in the record, the cause must be affirmed, and it is so ordered.

Affirmed.


author: CARL, J.

text:
    GALVESTON, H. & H. RY. CO. v. LEGGIO.
    (No. 5,265.)
    (Court of Civil Appeals of Texas. San Antonio.
    April 22, 1914.)
    Railroads (§ 443*)—Injuries to Stock— Sufficiency of Evidence — Negligence.
    Evidence, in an action for damages for killing a mule on a railroad track, held to sustain a finding that the engineer could have seen the mule in time to stop and did not attempt to do so.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1608-1620; Dec. Dig. § 443.*]
    Appeal from Galveston County Court; George E. Mann, Judge.
    Action by V. Leggio against the Galveston, Houston & Henderson Railway Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    John L. Darrouzet, of Galveston, and John T. Galrison, of Houston, for appellant. Geo. G. Clough and Aubrey Fuller, both of Galveston, for appellee.
   CARL, J.

Appellee, V. Leggio, sued the Galveston, Houston &! Henderson Railway Company for the value of a mule killed by one of appellant’s engines at Dickinson, in Galveston county, and recovered $125, from which judgment this appeal is prosecuted.

The engineer testified that his train was running about 35 miles per hour through, the town of Dickinson, no stops being made between Houston and Galveston; and he says he could not have stopped his train without endangering the lives and limbs of the passengers. Other testimony is to the effect that the track was straight and that the mule was on the track while the train was yet about a half mile away; that they tried to scare the mule away; and that the train did not slow down, even after it struck the deceased. These facts justified the trial court in concluding that the engineer could have seen the faithful beast of burden in time to stop, and that he made no effort to do so, thereby causing the untimely demise of Leggio’s mule.

There are but two assignments of error, which we have carefully examined, and, finding them without merit, same are overruled.

Judgment is affirmed.


text:
    GULF, C. & S. F. RY. CO. v. JAMES B. & CHARLES J. STUBBS.
    (No. 5271.)
    (Court of Civil Appeals of Texas. San Antonio.
    April 22, 1914.
    Rehearing Denied May 13, 1914.)
    1. ASSIGNMENTS (§ 92) — RIGHT OE ASSIGNEE —Settlement with Assignor.
    Where defendant, after notice that one, having a claim for damages against it, had assigned to plaintiff a half interest therein, and in any compromise, settlement, or recovery, settled with and paid the assignor, plaintiff may recover of it half the amount it paid the assignor, without pleading or proving the damages, though he might sue it on the claim for damages, or the assignor for his share of the sum paid him.
    [Ed. Note. — Por other cases, see Assignments, Cent. Dig. § 158; Dec. Dig. § 92.]
    2. Insane Persons (§ 61) — Assignment oe Claim — Settlement with Assignor.
    Though when H. assigned to plaintiff a half interest in a claim for damages against defendant, and in any settlement, H. was insane, so that the contract was voidable, yet H. not having disaffirmed it, but having thereafter, with knowledge of the facts, and before settling with defendant, ratified it, defendant having had knowledge of the contract, though not of the ratification, was liable to plaintiff.
    [Ed. Note. — Por other cases, see Insane Per•sons, Cent. Dig. §§ 93-99; Dec. Dig. § 61.]
    3. Continuance (§ 30) — Amendment at Trial — Discretion.
    Allowing plaintiff to amend his petition after the case had gone to trial, without granting defendant a continuance, is largely a matter of discretion, not abused, where the amendment simply enlarges on the cause of action, and does not require of defendant any evidence not before required.
    [Ed. Note. — Por other cases, see Continuance, Cent. Dig. §§ 99-112; Dec. Dig. § 30.]
    Appeal from District Court, Galveston County ; Clay S. Briggs, Judge.
    Action by James B. & Charles J. Stubbs against the Gulf, Colorado & Santa Fé Railway Company. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    Terry, Cavin & Mills and A. H. Culwell, all of Galveston, for appellant. D. D. McDonald and James B. & Chas. J. Stubbs, all of Galveston, for appellees.

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

   CARL, J.

Appellees, James B. & Charles 1 J. Stubbs, a law partnership, sued appellant, alleging that on February 23, 1912, they were employed by Charles Hansen to represent him in his' claim for damages against appellant growing out of a collision which occurred on or about February 18, 1912; and that said Hansen authorized appellees to sue for, settle, or compromise his claims, and in consideration of their services rendered and to be rendered to said Hansen, he transferred and assigned to them in writing a one-half interest in his claims and causes of action against appellant, and in any compromise, judgment, or recovery that he might be enti.tled to by reason of said collision and injuries and damages resulting therefrom. There are further allegations that they were representing said Hansen and carrying out this agreement with Hansen, and had notified appellant of their employment and of their interest in the claim; but that, although appellant had actual notice of appellees’ contract, about May 20, 1912, appellant settled with Hansen for $3,500, and a judgment was entered in Hansen’s favor for that amount, which was paid. The prayer was for $1,750 or one-half of the sum received by Hansen.

Appellant answered by general demurrer, general denial, and specially that at the time Hansen made the contract, if any, with ap-pellees, he was mentally unfit to and incapable of making a valid contract, and same is void; and further that, after Hansen recovered his ’understanding, he repudiated said contract and declined to recognize appellees as his attorneys.

By trial amendment, appellees further alleged that, since the cause went to trial, they had learned that said Hansen had received' $1,500 additional in satisfaction of injuries to himself, and for injuries to his minor daughter, growing out of the same accident in which his wife was killed, and alleging that said $1,500 additional payment was a settlement out of court and unknown to ap-pellees until developed in the trial. • Their additional prayer was for one-half of the $1,500 settlement made out of court, or a total of $2,500.

The trial, which was before the court, resulted in a judgment in favor of appellees for $2,375, from which the appeal is taken.

The contract entered into is as follows: “Galveston, Feby. 23d, 1912. Messrs. James B. and Charles J. Stubbs, Lawyers, City — Dear Sirs: I hereby employ you to represent me in my claim for damages against the Gulf, Colorado & Santa Fé Ry. Company, growing out of the collision on, February 18th, 1912, and all injuries and damages resulting therefrom, and I hereby authorize you to sue for, settle or compromise such claim; and in consideration of your services rendered and to be rendered, I hereby transfer and assign to you a one-half (%) interest in my claims, demands and causes of action and any compromise, settlement, judgment or recovery tliat I may be entitled to by reason of said collision, injuries and damages. Charles Hansen. Witness: W. J. Jinkins, M. D. Miss Julia Clooney.”

It is admitted that this contract had been brought to the attention of the railway company, and that Hansen recovered a judgment against the company on May 20,1912, for $3,-500, which was settled May 23, 1912, for $2,-350 to Hansen; and on May 22, 1912, he settled outside of court for his own injuries and those of his daughter for the sum of $1,500. The trial court finds that the company had actual notice of the contract before the settlements were made; bub appellees were not notified of the settlements, and they knew nothing about such compromise until the judgment was entered for $3,500, and did not know of the $1,500 settlement until the trial of this cause. It is further found by the court that Hansen never disaffirmed the contract, but as late as the latter part of April or first of May he manifested an Intention to abide by the terms thereof with full knowledge of its contents and of the efforts being put forth thereunder by said attorneys.

The trial court concluded that as a matter of law, while Hansen may not have known that his wife was dead at the time he executed the contract, he did know she and the child were with him, at the timé of the collision, and must have known that what he was contracting for was the recovery of damage to which he might be entitled for all injuries and damages growing out of the collision from whatever source; and further that the contract conveyed to appellees a one-half interest in and to each and all causes of action growing out of the collision. The court also concludes that Hansen did not disaffirm the contract; that appellant had notice of the contract and, having such notice, had settled with Hansen for $2,375; and that appellees were entitléd to judgment for one-half of that sum.

The contract not only assigned an interest in the claim for damages, but a one-half interest in any compromise, settlement, or recovery as well. As we construe the holdings of the courts, an attorney holding a contract such as the one in this case has three remedies, in the event the client settles the claim after notice to the party liable as to the existence of the contract, viz.: (1) He may proceed on the assigned cause for damages, in which event he would plead and prove the damages and liability therefor, and recover his part of such damages as might be established (Seiter v. Marschall [Sup.] 147 S. W. 226); (2) he might sue the client for his share of the sum paid in settlement; or (3) he may recover his part of the sum paid the client without pleading and proving the damages. The last is the remedy selected in this ' case, and there appears to be ample authority for so doing.

A case almost identical with the one under consideration came before the Supreme Court in G., H. & S. A. Ry. Co. v. Ginther, 96 Tex. 295, 72 S. W. 166, in which the judgment of the Court of Civil Appeals, 30 Tex. Civ. App. 161, 70 S. W. 96, was affirmed. That contract said: “I agree to give and hereby assign to them one-third of whatever may be recovered in said suit, or by way of compromise.” Gin-ther settled, after the suit was filed, for $2,500, and his attorneys intervened and obtained judgment against the railway for one-third of the amount paid Ginther. Judge Williams said: “The instrument plainly expressed the intention to assign an interest in a cause of action of which a judgment or compromise was to be the measure, and the expression of this intention, in any language, was all that was required to make an assignment, as contradistinguished from a mere agreement to pay so much as a contingent fee. Christmas v. Russell, 14 Wall. 84, 20 L. Ed. 762. While the contract may have left the plaintiff free to compromise, it gave the assignees an interest in the claim which they had the right to have paid in the settlement. This right, when the defendant knew of its existence, could not be defeated by payment to the plaintiff. The position of defendant was that of any other person paying a debt to the original creditor instead of an assignee whose rights were known”—citing Railway v. Vaughn, 16 Tex. Civ. App. 403, 40 S. W. 1065.

Another case very similar to this one came before the Austin Court of Appeals in G., C. & S. F. Ry. Co. v. Eldredge, 35 Tex. Civ. App. 467, 80 S. W. 556. The court said: “The ap-pellees’ cause of action was for 45 per cent, of the amount paid by the appellant to El-dredge. The contract upon which they base their cause of action transfers to them this percentage of the amount that might be received in compromise. Such being the case, they would be entitled to recover this amount without establishing the fact that the appellant would be and was liable to Eldredge on a cause of action for damages, as alleged in the petition. The right to recover in a case of this kind for the part' of the amount that the assignees were entitled to that was paid to the injured party in settlement is recognized by the case of G., H. & S. A. Ry. Co. v. Ginther, supra, and cases there cited.” See, also, G., C. & S. F. Ry. Co. v. Miller, 21 Tex. Civ. App. 609, 53 S. W. 709; T. C. L. Co. v. Holt, 144 S. W. 1029; Powell v. G., H. & S. A. Ry. Co., 78 S. W. 977; Texas Cent. Ry. Co. v. Andrews, 28 Tex. Civ. App. 477, 67 S. W. 924.

From the authorities cited, it seems to be well settled that the assignee of an interest in a claim for damages may hold the party liable therefor responsible for his proportionate share of a settlement made with the client after notice. The assignment is to one-half of “my claims, demands, and canses of action and any compromise, settlement, judgment, or recovery.” Hansen did not expressly waive the right to himself settle the claim; but the railway was put upon notice that appellees had and owned a one-half interest in any compromise. So, when the railway paid Hansen all of the money, they could not thereby force appellees to sue Hansen to recover the money. The company knew of appellees’ interest, and, when it paid Hansen all of it, the risk was the railway’s. Appellees were not required to plead and prove the damages to Hansen, as contended, but could sue for their part of the settlement made. G., C. & S. F. Ry. Co. v. Eldredge, 35 Tex. Civ. App. 467, 80 S. W. 556; G., H. & S. A. Ry. Co. v. Ginther, 96 Tex. 295, 72 S. W. 166; Texas Cent. Ry. Co. v. Andrews, 67 S. W. 924.

In view of the foregoing, assignments 1, 2, and 3 are overruled.

By the fourth and fifth assignments, appellant contends that, if Hansen ratified the contract of employment sued upon, such ratification was not binding upon the railway, and that no liability was, or could be, •created against it by reason of such ratification because there is no evidence that the railway had any notice of such ratification before the settlement was made, and the finding of the court is against the great weight of the evidence. The railway had pleaded that, at the time Hansen made the contract, he was not in a mental condition to do so, and •did not know all the facts. For instance, it was claimed that he did not then know his wife was dead.

That appellant had actual notice of the ■contract is not disputed. The court found that Hansen had not disaffirmed the contract but had manifested an intention to abide by its terms after knowing all the facts and before the settlement was made. In M. P. Railway Co. v. Brazzil, 72 Tex. 239, 10 S. W. 406, it is said: “There has been some conflict of decision whether the contract of an insane person is void or voidable, but the great weight of authority holds the contracts of such persons only voidable. Elston v. Jasper, 45 Tex. 413; Wharton’s Law of Contracts, 98-118; Pollock’s Principles of Contracts, 76-84; Anson on Contracts, 114; 2 Kent, Com. 593. Contracts only voidable are obligatory until in some manner repudiated or annulled, and may at any time be ratified and thereby the right to avoid them be lost.” If, subsequent to the time of making a voidable contract, the party, then having capacity to do so, ratifies the same, the contract will then stand in all its terms as originally made, and cannot thereafter be set aside. “A ratification relates back to the inception of the transaction and makes a deed as obligatory as if originally made by the party or by his authority,” says Judge Gould in Railway Co. v. Chandler, 51 Tex. 416; and Mr. Justice Ply cites this case with approval in Bremner v. Fields, 34 S. W. 447. The railway knew at the time it settled that appellees were claiming to represent Hansen, and knew they held a contract, which, if voidable, was subject to ratification at any time by Hansen. The fourth and fifth assignments are overruled.

Complaint is made that the trial court erfed in permitting appellees to file a trial amendment on May 21, 1912, after the case had gone to trial, in which claim was made for $750, or one-half of a $1,500 settlement made by Hansen with the company out of court. Appellant claimed that it was a new and distinct cause of action, and asked to withdraw announcement and continue, which the court refused. Appellant admits in its brief, and did not then deny, that such settlement had been made. No defense whatever is shown against same other than is presented in regard to the $3,500 judgment. The receipts evidencing this settlement were produced by appellant’s attorney during the trial of the eause. “It is within the discretion of the trial court to grant the request of the plaintiff to withdraw its announcement and amend its pieadings.” G. B. Grocery Co. v. Carter, 30 S. W. 487. The statute (R. S. 1824), providing that amendments shall be filed before the parties announce ready for trial, and not thereafter, is directory, and it is not error for the court, in the exercise of a sound discretion, to allow the pleading to be amended, even after the trial has commenced.” Railway Co. v. Goldberg, 68 Tex. 687, 5 S. W. 824. In this case Judge Gaines says: “Admitting, for the sake of the argument, that the amended petition set up a new cause of action, the question of continuance was largely in the discretion of the court.” 1 Ency. Dig. Tex. Reps. 211-213.

Whether the court has abused that discretion is a proper subject of review. But, where a continuance is asked on the ground of surprise caused by filing an amendment, it must appear that the amendment makes it necessary to produce evidence not before required. And none other was required because the fact that settlement was made was admitted. Fisk v. Miller, 13 Tex. 227; Beham v. Ghio, 75 Tex. 89, 12 S. W. 996; Parker v. Spencer, 61 Tex. 164. Nowhere is it made to appear that appellant had any other defense than that which was urged and which applied as well to the matter set up in the amendment. While it is the purpose of the law to safeguard the rights of litigants and give a fair trial, it is at the same time the policy of the law to terminate suits as soon as that may be done fairly and to prevent a multiplicity of suits. In Beham v. Ghio, 75 Tex. 88, 12 S. W. 997, Judge Gaines says: “If the court be satisfied, upon sufficient grounds, that in fact there is no surprise, and that he is as ready to proceed as if the amendment had been filed a sufficient length of time to enable him to prepare his ease for trial, and that the application to continue is for delay only, the continuance should be refused.” Cummings v. Rice, 9 Tex. 530; Parker v. Spencer, 61 Tex. 164; Whitehead v. Foley, 28 Tex. 10; Bank v. Sharpe, 33 S. W. 677; Tel. Co. v. Bowen, 84 Tex. 477, 19 S. W. 564; Johns v. Northcutt, 49 Tex. 454. The amendment in this ease "did not change the cause of action, but simply enlarged upon it, and the entire matter grew out of the same transaction. Ball v. Britton, 58 Tex. 57; Railway v. Pape, 73 Tex. 503, 11 S. W. 526.

We have carefully considered all assignments and do not think any of them should be sustained.

The judgment is affirmed.