author: FLY, C. J.

text:
    FIRST TEXAS STATE INS. CO. v. JIMINEZ.
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 28, 1914.
    Rehearing Denied, Feb. 25, 1914.)
    1. Appeal and Ebror (§ 724) — Assignments oe Error— Sufficiency.
    In an action on a policy of life insurance, defended on the ground of suicide, where there was no statement in defendant’s brief as to any clause of the policy providing against suicide, and where it was assigned as error that the beneficiary could not, under its terms, recover more than one-tenth of the policy in case of suicide, the assignments should not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2997-3001, 3022; Dec. Dig. § 724.]

      2. Insurance (§ 646)—Action on Policy-Presumption and Burden of Proof.
    Under a policy excepting liability where insured commits suicide, the presumption of law is against suicide, and the insurer, defending on that ground, has the burden of establishing the fact, where the policy does require the beneficiary to establish that death was accidental.
    [Ed. Note.—For other cases, see Insurance, Cent. Dig. §§ 1555, 1645-1668; Dec. Dig. § 646.]
    8. Insurance (§ 668)—Action on Policy-Question for Jury—Suicide.
    Where the facts, in an action on a policy of life insurance excepting liability in case of suicide, indicated that the death of insured was caused by accident or by suicide, it was for the jury to say whether defendant had sustained the burden of removing the presumption against suicide.
    [Ed. Note.—For other cases, see Insurance, Cent. Dig. §§ 1556, 1732-1770; Dec. Dig. § 668.]
    4. Insurance (§ 666)—Extent of Recovery —Interest.
    Where the beneficiary, under a policy of life insurance after death of the insured, demanded the amount of the policy, refused the amount offered by the insurer, and began suit for and recovered the amount of the policy, she was entitled to interest on such amount.
    [Ed. Note.—For other cases, see Insurance, Cent. Dig. § 1791; Dec. Dig. § 666.]
    5. Insurance (§ 602)— Action on Policy-Amount of Recovery—Attorney’s Fees.
    In such -case the beneficiary was entitled to attorney’s fees.
    TEd. Note.—For other cases, see Insurance, Cent. Dig. § 1498; Dec. Dig. § 602.]
    Appeal from District Court, Webb County; J. F. Mullally, Judge.
    Action by Maria M. Jiminez against the First Texas State Insurance Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    H. G. Dickinson, of Laredo, for appellant. Greer' & Hamilton, of Laredo, for appellee.

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

      For other case3 see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   FLY, C. J.

This is a suit by appellee, the widow of Pablo Jiminez, to recover of appellant the sum of $600, insurance on his life, with interest, 12 per cent, damages for refusal to pay the policy, and attorney’s fees; the whole amount being $865. The cause was tried without a jury, and judgment was rendered for the amount sued for.

The defense was that Pablo Jiminez committed suicide. There is nothing in any statement made in the brief as to any clause in the policy that provided against suicide. The only reference to the provision of the policy is found in the second assignment of error, where it is stated that the beneficiary in the policy could not, under its terms, recover more than one-tenth of the policy if the insured killed himself. The assignments under such circumstances should not be considered, but we have given them full consideration.

The facts show that Pablo Jiminez was killed by the discharge of a gun in his house on January 20, 1912. No one was present when the man was shot, and, while there are circumstances that point to the fact that Pablo Jiminez may have committed suicide, the jury can under the facts be justified in finding that the death was accidental and not intentional.

Appellant seems to labor under the impression that the burden was upon appellee to show that the death of her husband was accidental ; but, when the death may have resulted from suicide, accident, murder, or negligence, the presumption of law is against suicide or murder, and, where the insurer defends on the ground of suicide, the burden of proof rests on him to show such fact. The terms of the policy do not provide for removing this presumption by requiring the claimant to establish by direct and positive proof that the death was caused by accidental means. The policy in this case does not seek to change the burden from appellee to appellant, but merely provides that the beneficiary can recover only one-tenth of the amount of insurance, if the injuries causing death were intentionally inflicted upon himself by the insured. The burden rested upon appellant to prove suicide. Joyce, Ins. §§ 8773-3774.

The facts in this case indicated that the death was caused by accident or by suicide, but the presumption is against the latter, and, in order to successfully defend, it devolved upon appellant to remove that presumption. It was for the jury to say whether that was done by appellant. Mallory v. Insurance Co., 47 N. Y. 52, 7 Am. Rep. 410.

It is the contention of appellant that if deceased was engaged in attempting to extract a shell from the breech of the gun, which was the theory advanced by appellee, it was impossible for him to have killed himself,* but the jury were not confined to that theory. It is presumed that the shell was exploded accidentally, and to support that presumption it can be assumed that the deceased was working with the gun in such way that it was* pointing directly towards his heart, and that it was accidentally discharged and killed him. Mutual Life Ins. Co. v. Simpson, 28 S. W. 837. In that case it was said: “The presumption of law is against the theory of suicide, and the burden is on the party asserting it to show, not only the fact that death was caused by the act of the dead person, but by his intentional act, done with intent to bring about his death.”

The case last cited is also authority for allowing interest on the amount of the policy and also for the allowance of attorney’s fees. The judgment in that case was reversed, but not on the points enumerated, by a divided special Supreme Court, and the opinion of the Court of Civil Appeals is undoubtedly correct and has been often cited in Texas and other states. Equitable Life v. Liddell, 32 Tex. Civ. App. 252, 74 S. W. 87; Travelers’ Insurance Co. v. Nicklas, 88 Md. 470, 41 Atl. 906; Knights of Pythias v. Foster, 26 Ind. App. 333, 59 N. E. 877; Grand Fraternity v. Green, 131 S. W. 442; Schon v. Modern Woodmen, 51 Wash. 482, 99 Pac. 25; Sargent v. Modern Brotherhood, 148 Iowa, 600, 127 N. W. 52.

The interest was properly allowed. Demand must have been made for the amount of the policy, because on April 18, 1912, about three months after the death of Pablo Jiminez, appellant acknowledged receipt of the “claim papers,” and a check was sent to appellee-for one-tenth of the principal sum and accumulation. Appellee did not accept the amount sent to her by appellant, and replied to the offer of the $44 by instituting suit for the amount of the policy, interest, and attorney’s fees.

The court did not err in overruling the motion for new trial. It failed to show any diligence as to the newly discovered evidence.

The judgment is affirmed.


source: Caselaw Access Project

author: HUFF, C. J.

license: Public Domain

text:
    BIRD v. LESTER et al.
    (Court of Civil Appeals of Texas. Amarillo.
    Jan. 10, 1914.
    Rehearing Denied Feb. 21, 1914.)
    1. Appeal and Error (§ 627) — Failure to File Tbansobipt — Affirmance on Certificate.
    Where appellant, after perfecting his appeal, loses his right to file his transcript by failure to file it in time, and shows no sufficient excuse, the right of the appellee to an affirmance on a certificate is absolute, though the appellant, previous thereto, sues out a writ of error.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2744-2749, 3126; Dec. Dig. § 627.]
    2. Appeal and Error (§ 1127) — Failure to File Transcript — Sufficiency of Motion to Affirm on Certificate.
    Under Courts of Civil Appeals rule 11a (142 S. W. xi), where an affirmance is asked upon certificate filed, a certificate, giving only 4he day when the court convened and adjourned, the copy of a judgment of dismissal, the motion for new trial, the order overruling it, and the appeal bond, did not show the trial court’s jurisdiction of the subject-matter, and hence was insufficient to give jurisdiction to affirm.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4432⅜440; Dec. Dig. § 1127.]
    Appeal from District Court, Garza County; W. R. Spencer, Judge.
    Action by J. A. Bird against J. P. Lester and others. From a judgment for defendants, plaintiff appeals, and, failing to file his transcript in time, sued out a writ of error, and defendants move to affirm on certificate.
    Motion overruled.
    R. N. Grisham, of Sweetwater, for appellant. Higgins & Hamilton, of Snyder, and J. D. Martin, of Alpine, for appellees.

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

   HUFF, C. J.

This is a motion to affirm on certificate. It is shown by the certificate that the district court of Garza county convened July 7, 1913, and adjourned July 19, 1913. At that term, the exact date is not given in the judgment, the general demurrer-of the defendants was sustained to plaintiff’s second amended original petition, and, the-plaintiff declining to further amend, the cause was thereupon dismissed, “at the cost of plaintiff, for which execution may issue.” That afterwards, on the same day, J. A. Bird, plaintiff, filed his motion for new trial,which was by the court overruled on the 8th day of July, 1913, to which action plaintiff excepted and gave notice of appeal to this court, and on that day the plaintiff, Bird, filed his appeal bond with the required sureties, conditioned as required by law to pay the costs on appeal. The bond was duly filed and approved by the clerk of the district court of Garza county July 8, 1913. The transcript was not filed in this court within the 90-day limit, and on the 5th day of November, 1913, J. A. Bird filed a super-sedeas bond and petition for writ of error- and caused citation to issue thereon, which was duly served on the defendant in that case and is docketed in this court as No. 576. The writ of error proceedings were filed in this court December 8, 1913.

J. A. Bird files in this court a contest of the motion to affirm on certificate, calling our attention to the writ of error proceedings. In this contest Bird seeks to excuse-himself for the failure to file the transcript, on the appeal within time.

From the affidavits presented we do. not'think he shows sufficient excuse for the-delay, but they evidence negligence on his. part, and no grounds are therein stated which show that we are authorized to overrule the-motion to affirm on certificate. Fire Insurance Co. v. Stilwell Bros., 26 Tex. Civ. App. 338, 63 S. W. 950; Hoefling v. Esser, 46 S. W. 294; Reynolds v. Dechaumes, 22 Tex. 116; Ellis v. Cunningham, 16 Tex. Civ. App. 571, 41 S. W. 522; House v. Williams, 40 Tex. 346; Railway Co. v. Edwards, 72 Tex. 303, 10 S. W. 525. We regard it as now settled' by the courts that if for any reason the appellant, after having perfected his appeal, lost his right to file his transcript in this court, the right of the appellees to an affirmance on a certificate becomes absolute, and that, too, if the appellant had previous thereto sued out a writ of error. Welsh v. Weiss, 40 Tex. Civ. App. 257, 90 S. W. 160, and authorities cited; Railway Co. v. Ray, 19 Tex. Civ. App. 416, 47 S. W. 477; Filhol v. Leon & H. Blum Land Co., 19 Tex. Civ. App. 688, 49 S. W. 669. It follows that appellees • should have an affirmance of this case upon. their motion, if the certificate is sufficient.

Rule 11a for Courts of Civil Appeals (142 S. W. xi) provides: “When an affirmance is asked upon certificate filed, there need be nothing more than a request for affirmance signed by the party or his counsel. But such reguest shall be accompanied by a transcript of the record of the proceedings in the trial court sufficient to show that such trial court had jurisdiction of the subject-matter and parties.” The certificate in this case gives only the day when the court convened and adjourned, the copy of the judgment which is one of dismissal and for costs only, motion for new trial, order overruling the motion, and appeal bond. There is nothing in the certificate to show that the trial court had jurisdiction of the “subject-matter.” There is no transcript sent up with the motion to affirm to show the trial court had jurisdiction, and, unless that court had jurisdiction, we have none. Sloan v. McMillin, 113 S. W. 587; Ray v. Railway, 18 Tex. Civ. App. 665, 45 S. W. 479; House v. Williams, 40 Tex. 351; Bank v. Presidio County, 22 S. W. 10.

We have concluded, under the above rule and authorities, that we should not assume that the trial court had jurisdiction of the “subject-matter” on the recitals in the judgment alone, which does not give judgment for any amount by which we could conclude that court had jurisdiction. It has been held by the Supreme Court that this proceeding is summary and ex parte, and that a party claiming the benefit of the statute must bring himself strictly within the meaning of the statute. Loftin v. Nalley, 28 Tex. 127. This we do not think appellees have done in their motion and the certificate presented.

The motion is therefore overruled.


author: RASBURY, J.

text:
    HUDGINS v. THOMPSON et al.
    (Court of Civil Appeals of Texas. Dallas.
    Jan. 31, 1914.
    Rehearing Denied Feb. 21, 1914.)
    1. Specific Performance (§ 35) — Contracts of Sale — Homestead—Enforceability.
    A contract by a wife to convey the homestead is not enforceable against her, since the only manner in which she may convey is by deed acknowledged in the manner provided by law.
    [Ed. Note. — For other cases, see Specific Performance, Cent. Dig. §§ 102-106; Dec. Dig. § 35.]
    2. Specific Performance (§ 65) — Contracts of Sale.
    While specific performance of a contract by a husband to convey his separate property constituting the homestead may be granted after an abandonment of the homestead where, though a husband and wife moved from the homestead to a rented place, and a purchaser from the husband moved to the homestead, the wife was ignorant of the sale by her husband, and shortly after joining in a conveyance to a third person she and her husband acquired a new homestead, there was no such abandonment of the homestead as would justify a decree for specific performance against the husband.
    [Ed. Note. — For other cases, see Specific Performance, Cent. Dig. § 196; Dee. Dig. § 65.]
    3.Homestead (§ 154) — Abandonment—Necessity of Wife Joining in Abandonment.
    There can be in law no abandonment of a homestead in which the wife does not join.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. § 307; Dec. Dig. § 154.]
    Appeal from District Court, Yan Zandt County; R. W. Simpson, Judge.
    Action by Len Hudgins against Horace Thompson and others. From a judgment for defendants, plaintiff appeals.
    Affirmed.
    J. Andrew West and S. Love West, both of Grand Saline, and J. A. Germany, of Dallas, for appellant. Natt M. Crawford, of Grand Saline, and Wynne, Wynne & Gilmore, of Wills Point, for appellees.

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

   RASBURY, J.

Appellant sued appellees in trespass to try title, and to compel specific performance of a contract to convey 40 acres of land out of the Neeley survey in Van Zandt county. Jury trial was waived by all parties. Judgment in the court below was for the appellees.

There is no statement of facts in the record; but it does contain the conclusions of fact prepared and filed by the trial court. The facts so found and essential to a determination of this appeal are in substance as follows: Appellee Horace Thompson, in December, 1911, was a married man, and the 40 acres of land in controversy was the homestead of himself and wife, Mattie; but the land so occupied was the separate property of said Horace Thompson, being also all the land owned by either Thompson or his wife. At the date named Horace Thompson agreed to sell the land to appellant, and to execute deed therefor, joined by his wife, Mattie, the consideration to be $500, of which amount a small proportion was to be in cash, and the balance in two equal payments, one in the autumn of 1912, and one in the autumn of 1913, secured by the vendor’s lien. The cash payment was made at the time appellant and Horace Thompson made the agreement detailed, and at which time Horace Thompson and wife, Mattie, with her consent, removed from the 40 acres to a rented place at that time occupied by appellant Hudgins, who at the -same time removed to and occupied the 40 acres, and continued in possession thereof up to the time of the trial, to wit, April 11, 1913. Mattie, the wife of Biorace Thompson, knew nothing whatever of the agreement to purchase and convey by and between her husband and appellant, and at no time agreed or consented thereto. Matters standing thus, and Mattie Thompson, so far as the record discloses, being in ignorance of the atreement, she and her husband, in November, 1912, by statutory deed, conveyed the land to Frank Thompson for $550. At all times, even subsequent to the execution of the deed to Frank Thompson, and prior to appellant’s knowledge thereof, Horace Thompson assured appellant that a deed would be made to him as agreed. Prior to the sale of their homestead to Frank Thompson, appellee Horace Thompson and his wife acquired no other homestead. Shortly after selling to Frank Thompson they did acquire another homestead, and was occupying same at the time of trial. Upon discovery of the deed .to Frank Thompson, this suit was instituted against both Thomp-sons and their wives, with the result stated.

The court’s second conclusion of law is that the contract between appellant and appellee Horace Thompson was not enforceable, because the land continued to be the homestead of Thompson and his wife until they conveyed same by statutory deed to Frank Thompson. If the testimony supports the court’s conclusion of fact, and the court’s conclusion of law upon the facts is correct, it is determinative of all other questions in the case, and for that reason we consider that feature of the appeal first. A contract of any kind by the wife to convey the homestead is not enforceable against her, since the only manner in which she may convey is by deed acknowledged in the manner provided by law. ' It was said in Eberling v. Deutscher Verein, 72 Tex. 339, 12 S. W. 205, that the wife’s signature to a bond executed by her husband to convey the homestead would add nothing to its strength. Nor i3 it contended on this appeal that the wife of appellee Horace Thompson was bound by the agreement to convey made by her husband, or that she knew of such agreement; but it is claimed that she and her husband had abandoned the homestead before it had been sold to Frank Thompson, and hence, the homestead right of Mattie Thompson having been eliminated, specific performance could be enforced against Horace Thompson, the owner of the land. In Goff v. Jones, 70 Tex. 572, 8 S. W. 525, 8 Am. St. Rep. 619, it was held that specific enforcement of a bond to convey the homestead signed by the husband and wife could not be enforced so long as the property remained the homestead, for the reason that the wife’s privilege to retract the' sale continued to the very instant when her acknowledgment to the deed of conveyance was taken; but it was also said that, if the homestead was abandoned, and a new one acquired, specific performance could be decreed at any time before the bond was barred by limitation. In Beck v. Avindino, 29 Tex. Civ. App. 500, 68 S. W. 827, the rule in Goff v. Jones, supra, is extended, since it is there held that there may be an abandonment of an existing homestead whether another one is acquired or not. The Eberling Case, supra, seems to indicate a similar holding. Thus it will be seen that Thompson’s agreement to convey might have been enforceable had there been an abandonment of the homestead prior to its sale to Frank Thompson. But, as we have said, the court below concluded from the testimony that there had been no such abandonment, which is supported by the conclusions of fact filed by the court (there being no statement of facts), and the trouble lies, not in the application of the rule, but in the absence of any facts establishing the abandonment of the homestead. The only circumstance adduced on trial, so far a's the court’s conclusions of fact indicate, which might tend to establish an intention on the part of Mattie Thompson to abandon the homestead is that she removed from her existing homestead to a rented place, at the time occupied by appellant, he in turn removing to her homestead. The force of any significance which may be attached to that fact is lessened, however, by the further fact that she was entirely ignorant of the agreement between her husband and appellant. Again, any intention to abandon her homestead indicated by such removal is perhaps entirely rebutted by the fact that shortly after joining in the conveyance to Frank Thompson she and her husband did acquire another homestead. Hence it will be seen, without reference to what the facts show concerning the intention of Horace Thompson to abandon the land, that the court’s conclusions of law upon the practically undisputed facts are correct, since there can in law be no abandonment of the homestead in which the wife does not join, any more than there can be an alienation of the same by the husband without the consent of the wife in the exact manner provided by law. It was said in Stallings v. Hullum, 89 Tex. 431, 35 S. W. 2, in reference to the wife’s rights in the homestead, that: “The mere privilege of possession and enjoyment is not the measure of her right in the homestead. With the concurrence of her husband, she may exchange it for another; she may consent to 'a sale with a view to the investment of the proceeds in a new homestead, or in view of her husband’s receiving such consideration as she may deem an adequate compensation for the alienation of the shelter for the family.”

Entertaining the views we do with reference to the law of abandonment, and the facts on appeal failing to show an abandonment by Mattie Thompson, a consideration of issues collateral thereto is unnecessary, and accordingly the judgment is affirmed.


author: PLEASANTS, C. J.

text:
    BOND v. HANCOCK.
    (Court of Civil Appeals of Texas. Galveston.
    Jan. 22, 1914.)
    1. Appeal and Error (§ 1002) — Review — Verdicts.
    A verdict on conflicting evidence will be deferred to on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dec. Dig. § 1002.]

      2. Action (§ 45)—Joindeb of Causes—Bbo-kers—Actions toe Compensation.
    In an action by a real estate broker for compensation in assisting defendant to obtain title to land, the petition may allege in the alternative an express contract and a right of recovery on a quantum meruit.
    [Ed. Note.—Eor other cases, see Action, Cent. Dig. §§ 378-383, 385-448; Dec. Dig. § 45.]
    3. Appeal and Ebbor (§ 742)—Assignments ot Eeeoe—Sufficiency.
    An assignment of error unaccompanied by such a statement as is required by the rules will not be considered on appeal.
    [Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 3000;, Dec. Dig. § 742.]
    4. Brokers (§ 85) — Compensation — Bight to Compensation.
    In an action by a real estate broker on the quantum meruit for compensation in assisting defendant to procure title to land, the reasonable value of his services is to be determined by a consideration of the benefit to defendant, the labor performed, and time and money expended by the broker, and for such purpose the value of the property involved is material.
    [Ed. Note.—For other cases, see Brokers, Cent. Dig. §§ 106-115; Dec. Dig. § 85.]
    Appeal from Jasper County Court; J. J. Lee, Special Judge.
    Action by J. J. Hancock against W. P. Bond. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    W. B. Powell, of Jasper, for appellant. Wightman & Hancock, of Newton, for appel-lee.

      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

   PLEASANTS, C. J.

This suit was brought by the appellee against the appellant to recover the sum of $600 as compensation for services claimed to have been rendered by appellee at the special instance and request of appellant in assisting appellant to obtain title to a tract of 640 acres of land in Jasper county known and described as Houston & Texas Central Railway section No. 82. The plaintiff declared upon a contract by which the defendant agreed to pay the sum of $600 for the services rendered by the plaintiff, but prayed in the alternative that, in event it should be found that he was not entitled to recover said sum under his contract, he recover the reasonable value of his services, which he alleged was the sum of $600. The defendant answered by a general demurrer, special exceptions, and general denial. The trial in the court below with a jury resulted in a verdict and judgment in favor of plaintiff for the sum of $600.

The evidence is sufficient to sustain the finding that the defendant entered into the contract as alleged in plaintiff’s petition, and that plaintiff fully performed his part of his contract. It is also sufficient to sustain the finding that the reasonable value of the services rendered defendant by plaintiff was the sum of $600.

The evidence upon both of these issues, which consisted mainly of the testimony of the plaintiff and the defendant, is sharply conflicting; but that conflict was a question for the juiy, and in deference to their verdict we make the above findings of fact.

The first assignment of error complains of the judgment of the trial court overruling defendant’s general demurrer to plaintiff’s petition. The contention, under this assignment is that the petition was bad on general demurrer because it alleged “two separate, distinct, and inconsistent causes of action; one being for a specific amount on an express contract, and the other being an action for quantum meruit for labor performed without any agreement as to the amount to be paid therefor.”

There is no merit in this contention. No rule of pleading is better settled than that a plaintiff in a suit of this character may plead in the alternative and recover either the alleged agreed compensation, or the reasonable value of his services, as the evidence may authorize. Fant v. Andrews, 46 S. W. 909.

The second assignment complains of the ruling of the court in permitting the plaintiff to testify as to the value of the land the title to which he obtained for the defendant. The proposition under this assignment is as follows: “Where one person agrees to perform certain acts or labor for another for (without) a stipulated consideration or price, the value of said labor to the party paying therefor does not enter into the contract, and the value of such services is not measured by the benefit accruing therefrom to the party for whom the labor was rendered, but the true value of his services is such an amount as would reasonably compensate him for the services performed without reference as to whether they were beneficial or not to the defendant.” There is no statement under the assignment as required by the rules, and for this reason it is not entitled to consideration.

If, however, the assignment was properly presented, it could not be sustained. Plaintiff under his claim of quantum meruit was entitled to recover the' reasonable value of his services, and, in determining what was their reasonable value, the value of the land which he procured for the defendant should be considered. Compensation for services of this kind is not determined by the quantum of labor performed without regard to the benefits that accrue to the recipient of the services. No one would be held liable to pay the same amount to an agent who purchased or sold for him a tract of land worth $100 that he would for the purchase or sale of a tract worth $1,000, notwithstanding the fact that the actual labor performed by the agent in the one case was equal to that performed in the other. In determining the reasonable value of such services, the benefit to the defendant, labor performed, and time and money expended by the plaintiff should all Be considered. Hall v. Irrigation Co., 53 Tex. Civ. App. 592, 116 S. W. 831.

There was no error in the refusal of the court to give the special charge requested by defendant. This charge in effect instructed the jury that they could only consider, in determining what plaintiff should recover on his claim for quantum meruit, what amount would reasonably compensate him for the labor performed by him. It follows from what we have before said that the amount of XDlaintiff’s recovery could not be so restricted.

This disposes of the material questions presented by appellant’s brief. None of the remaining assignments present any error, and each is overruled without discussion.

We are of opinion that the judgment of the court below should be affirmed, and it has been so ordered.

Affirmed.


author: TALBOT, J.

text:
    DR. KOCH VEGETABLE TEA CO. v. MALONE et al.
    (Court of Civil Appeals of Texas. Dallas.
    Feb. 7, 1914.)
    1. Commerce (§ 46) — Partnership (§ 20*)— Sales (§ 7*) — Foreign Corporations —< Right to Sue.
    Plaintiff, a foreign corporation, _ and defendant entered into a contract providing for the sale and delivery to defendant f. o. b. Wi-nona, Minn., of certain goods at specified prices, and for the resale thereof by defendant in a specified county in Texas. Defendant was to make reports to plaintiff, and make payment in cash with each report of one-half of the cash received by him, not exceeding the amount due for goods previously purchased. At the termination of the contract, if not renewed, goods on hand were to be shipped back, and defendant given credit therefor, and all indebtedness was to be paid. The contract was signed by defendant in Texas, and sent to plaintiff in Minnesota. Held, that the transaction was not a partnership, nor a contract of agency, but a sale in Minnesota of goods subsequently shipped into Texas, and therefore constituted interstate commerce, and hence the statutes of Texas, requiring foreign corporations to procure a permit to do business in this state, and depriving them of the right to sue if they fail to do so, did not apply to an action for the balance due for goods.
    [Ed. Note. — For other cases, see Commerce, Cent. Dig. §§ 100, 113, 126; Dec. Dig. § 46; Partnership, Cent. Dig. §§ 6, 7; Dec. Dig. § 20;  Sales, Cent. Dig. ff 16, 17; Dec. Dig. § 7.] •
    2. Commerce (§ 57) — Interstate Commerce-Application op State Laws.
    The anti-trust laws of the state do not apply to transactions involving interstate commerce.
    [Ed. Note. — For other cases, see Commerce, Cent. Dig. §§ 72-76, 88, 90, 92-102; Dec. Dig. § 57.]
    3. Evidence (§ 445) — Parol Evidence to Vary Writing.
    Where the contract sued on was plain and unambiguous, and was not attacked for fraud, accident, or mistake, statements by either party after its execution, not amounting to a new contract, were inadmissible to contradict, vary, or impeach its terms.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2052-2065; Dec. Dig. § 445.]
    Appeal from Wood County Court; R. E. Bozeman, Judge.
    Action by the Dr. Koch Vegetable Tea Company against W. B. Malone and others. From a judgment dismissing the suit, plaintiff appeals.
    Reversed and remanded.
    Howell & Nabors, of Winnsboro, for appellant. D. M. Maynor, of Quitman, and M. D. Carlock, of Winnsboro, for appellees.

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

   TALBOT, J.

The statement of the nature and result of the suit made by appellant is accepted by appellees as correct, and is as follows: “The appellant, Dr. Koch Vegetable Tea Company, instituted this suit in the county court of Wood county, Tex., as plaintiff, against the appellees, W. B. Malone, Sam Paschal, and S. S. Moore, as defendants, to recover the sum of $410.72, with interest and costs of suit, alleged to be due appellant by appellee W. B. Malone, as principal, by virtue of the sale and delivery to him of certain goods, wares, and merchandise, under the terms of their contract set up in its petition, upon which contract the other appellees were alleged to be guarantors for the payment of said indebtedness. Appellee W. B. Malone, though present as a witness, made default in the suit, and the appellees Moore and Paschal answered by general demurrer, general denial, specially pleading in abatement that appellant is a foreign corporation without a permit to do business in this state; that the contract was in restraint of trade under our anti-trust law, in that it gave exclusive territory; that the contract had been materially changed without the consent of the guarantors; and that the indebtedness had been paid. Upon a trial of the case by the court without a jury a judgment was entered dismissing appellant’s suit, with costs in favor of appellees. Appellant in due time filed its motion for a new trial, which was by the court overruled. Thereupon appellant perfected its appeal to this court.

The first assignment of error is, in substance, that, it appearing from the evidence that appellant shipped the merchandise and articles of commerce for which appellees are indebted to appellant under and by virtue of a specific contract of sale and delivery thereof in the state of Minnesota, for shipment into the state of Texas to the principal, W. B. Malone, as shown by said contract in writing as introduced in evidence, the same constituted interstate commerce, and the court, therefore, erred in finding that a permit for appellant to do business in Texas was essential to its right to maintain this suit, and in rendering judgment against it. The material, and practically undisputed, facts shown by the evidence are that appellant and appel-lee W. B. Malone executed a contract in writing, providing in terms for the sale and delivery by appellant to said appellee f. o. b. at Winona, Minn., in such reasonable quantities as the appellee should desire frpm time to time, certain medicines, flavorings, spices, •and other articles manufactured or sold by it, said contract setting forth the price per dozen of a long list of articles, specifying the sizes of the bottle, as $1 size and 50 cent size. The contract then provides for resale of the goods in Franklin county, Tex., or in such territory as both parties may agree on. The contract was to terminate March 1, 1911. W. B. Malone was to keep records of the business and make reports to appellant. With each report of sales sent in, payment in cash was to be made of one-half “of the cash received,” not exceeding the amount then due for goods previously purchased. If the contract was not renewed, the goods on hand at its expiration were to be shipped back prepaid under certain conditions, and W. B. Malone allowed a credit at the invoice price to him on any indebtedness or any account he might owe or have with appellant. It also provides that upon the termination of the contract all indebtedness shall be paid. It specifies for 60 days’ notice by either party to terminate the contract before March 1, 1911. It then acknowledges an indebtedness of $353.35 due appellant, being a balance due on a previous agreement, similar in its terms to the said contract, which was to terminate March 1, 1911, for goods sold to him. The appellees S. S. Moore and Sam Paschal executed a guaranty of payment, jointly and severally, of all amounts due or to become due under said contract.

Oarl Gerlacher, witness for appellant, testified that he was secretary and treasurer of appellant company, and had charge of making contracts such as this. He says the above contract was received by mail by him, and on behalf of appellant, was accepted, executed, and notice given by registered letter thereof to appellees. The previous agreement referred to in the above contract under which the $353.35 indebtedness accrued was a contract between the appellant and appellee Malone, with substantially the same provisions, made the year before, and of which the above and subsequent contract was a renewal; it being the first contract between the parties. The remainder of the amount sued for was shown by invoices introduced in evidence for goods purchased under the last-mentioned contract.

W. B. Malone testified that the $353.35 was for goods furnished under first contract, and the remainder for goods furnished under last contract; that he was to devote his entire time to the business; that he traveled in a wagon owned by him, and retailed the goods to customers.

Carl Gerlacher testified on cross-examination that the appellant is incorporated under the laws of Minnesota, and has no permit to do business in Texas, and pays no occupation tax here, that Malone was never appointed agent of appellant to sell its goods in the state of Texas, and that all goods were sold to him at Winona, Minn.

We are of opinion the assignment must be sustained. The allegations of appellant’s petition and the evidence, as it appears in the transcript sent to this court, show that the goods for the price of which this suit was brought were sold under a contract in writing, the provisions of which are plain and unambiguous, and its execution is not denied, nor assailed for fraud, accident, or mistake. It is a contract by a citizen of one state, as appears by its terms, for the sale and delivery of articles of commerce in that state to be shipped into another state to a citizen of the latter state. In other words, the petition seeks to recover the price of the goods set out in the itemized account attached thereto, under a contract between Dr. Koch Vegetable Tea Company, a citizen of Minnesota, and W. B. Malone, a citizen of Texas, by the terms of which the goods were sold to the latter, to be delivered to him on board the cars at Winona in said state of Minnesota. This contract, it seems, was signed by appellee Malone in Texas, and sent to appellant in Minnesota subject to its approval and acceptance. Upon its receipt by appellant it was approved and signed by it, and the goods delivered according to its terms. The transaction or sale of the goods was consummated in the state of Minnesota, and the goods shipped from that state into this state. That such a transaction constituted commerce between a ■ citizen of Texas and a citizen of Minnesota is affirmed by several decisions of the appellate courts of this state. McCall v. J. D. Stiff Dry Goods Co. et al., 142 S. W. 659; Albertype Co. v. Feist & Co., 102 Tex. 219, 114 S. W. 791; Eclipse Paint & Mfg. Co. v. New Process Roofing Co., 55 Tex. Civ. App. 553, 120 S. W. 532; Erwin v. E. I. Du Pont De Nemours Powder Co., 156 S. W. 1097.

The facts in the instant case, in so far as they bear upon the question of whether or not the transaction between appellant and ap-pellee Malone involved interstate commerce, are so similar to the facts in the first case cited that the cases cannot be distinguished. The trial court’s finding that the contract and transactions between appellant and W. B. Malone “constituted a partnership to transact and solicit business in Texas” is not authorized and sustained, we believe, by the evidence. The evidence shows, as we construe it, a contract between appellant and Malone which they could legally make under the federal laws, a contract and transaction which involved interstate commerce, and to which the statutes of this state, requiring foreign corporations to procure a permit to do business here, and depriving it of the privilege of maintaining a suit in any of the courts of this state if it fails to do so, do not apply. The provi-tions of the contract with reference to the amount, method, and time of payment for the goods sold to Malone, the return of such goods as have not been sold at its expiration, and the naming of the territory in which Malone should sell, do not affect the passing of the title of the goods and the vesting of it in Malone. The stipulations as to time and manner of payment are plain and specific. The goods appear to have been sold on a credit, and the provisions requiring reports of sales to be made at stated times, and the payment of a certain amount at those times, based upon the amount of cash received by Malone for sales made, evidence an effort and precaution on appellant’s part to make such collections as would prevent Malone from becoming too greatly in its debt, and are consistent with the theory that such was the purpose of such provisions. All negotiations prior to the written contract were merged in it. By the terms of the contract Malone purchased the goods, and the conditions of the sale were clearly and specifically written therein. The contract cannot fairly he construed, in the light of the pleadings and evidence now before us, as one constituting Malone appellant’s agent to sell its goods in Texas. On the contrary, it clearly appears that the title to the goods delivered to him passed to and vested in him upon delivery to the railway company in the state of Minnesota. Roofing Co. v. Casler, 82 Mich. 466, 46 N. W. 728; State v. Betz, 207 Mo. 589, 106 S. W. 64.

The transaction being one involving interstate commerce, the same was pot subject to the anti-trust laws of Texas. Albertype Co. v. Feist Co., supra; Eclipse Paint & Mfg. Co. v. New Process Roofing Co., supra; McCall v. Stiff Dry Goods Co., supra. See, also, Moroney Hardware Co. v. Goodwin Pottery Co., 120 S. W. 1088.

We are further of the opinion that the court erred, under the pleadings in this case, in admitting, over the objections of the appellant, the testimony complained of in its third assignment of error. The written contract in this case is not attacked, as heretofore stated, on account of fraud, accident, or mistake. It is plain and unambiguous, and statements made by either party to it, after its execution, not amounting to or forming a new contract with respect to its subject-matter, are inadmissible to contradict, vary, or impeach its terms.

The judgment of the court below is reversed, and the cause remanded.


author: CARL, J.

text:
    TEVEBAUGH v. SMITH LAND CO.
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 28, 1914.
    Rehearing Denied Feb. 25, 1914.)
    1. Appeal and Error (§ 1203) — Reversal-Proceedings on Remand — Reinstatement op Cause — Necessity. ,
    Where an appeal was taken from an order of the county court dismissing a cause appealed from a justice of the peace, and thé order of dismissal was reversed and the cause remanded for trial in the county court, no further order setting aside the order of dismissal was essential to reinstate the case and confer jurisdiction on the county court to retry it.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4666, 4684^-4691, 4693; Dec. Dig. § 1203.]
    2. Costs (§ 266) — Appeal—New Trial — Jurisdiction op County Court.
    Where an order of the county court, dismissing an appeal from a justice of the peace, was reversed by the Court of Civil Appeals and the cause remanded to the county court for trial, that court being held to have acquired jurisdiction by reason of the filing of an appeal bond, it had jurisdiction on a new trial to make all proper orders regarding costs.
    [Ed. Note. — For other cases, see Costs, Cent. Dig. §§ 1009-1016; Dec. Dig. § 266.]
    3. Brokers (§ 88) — Consummated Sale — Action for Commissions — Instructions.
    Where, in an action for broker’s commissions, it appeared that an absolute and enforceable contract for exchange of property had been made, which carried no forfeiture clause and was not conditional, the court did not err in refusing to charge that, if the sale was not performed on the part of the purchaser, through no fault of defendant, plaintiff could not recover.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. §| 121, 123-130; Dec. Dig. § 88.]
    4. Trial (§ 251) — Instructions—Applicability to Evidence.
    Where, in an action for broker’s commissions, the contract obtained by the broker was an unconditional one and had been carried out by the purchaser, a requested charge that if the purchaser failed for any reason to carry out the contract, through no fault of ■ defendant, plaintiff could not recover was properly refused.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 587-595; Dec. Dig. § 251.]
    5. Trial (§ 194) — Instructions—Weight of Evidence.
    A broker sued on a contract for 2½ per cent, commissions on the valuation of defendant’s land, fixed by a contract of exchange, and the court charged that, if defendant listed his land with plaintiff for sale or trade, and plaintiff produced a purchaser on terms and conditions acceptable to defendant, and defendant made a contract of exchange and agreed to pay plaintiff 2½ per cent, on a valuation of $38 per acre, and the land consisted of 180 acres, then, if the jury so found, they would find for the plaintiff, and the form of their verdict would be for plaintiff in the sum of $171, with interest. Held, that since plaintiff was entitled to recover the amount specified or nothing, the instruction was not objectionable as on the weight of the evidence.
    [Ed. Note. — For other eases, see Trial, Cent. Dig. §§ 413, 436, 439-441, 446-454, 456-466; Dec. Dig. § 194.]
    Appeal from Uvalde County Court; T. M. .Milam, Special Judge.
    Action by the Smith Land Company against H. C. Tevebaugh. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Edward B. Ward, of Corpus Christi, for appellant.

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

   CARL, J.

This suit was instituted in justice’s court, precinct No. 1, of Uvalde county, by Smith Land Company, appellee, against H. C. Tevebaugh, to recover a commission of 2½ per cent on a sale of land, aggregating $6,8840, and resulted in a judgment there in favor of appellee for the sum of $171. An appeal was taken to the county court of Uval-de county, and there the case was dismissed. Erom the order of dismissal the ease was appealed to this court, and was here reversed and remanded for trial in the county court. 146 S. W. 647. On May 27,1913, the case was tried by a jury and a verdict in favor of appellee, Smith Land Company, was there rendered for the sum of $171, with legal interest thereon from August 1, 1910, and upon this verdict judgment was entered for $199.-95. This appeal is from that judgment. Any further statement deemed necessary will be given in the following discussion.

The first assignment, asserts that the court was without jurisdiction to try the cause because the county court had dismissed the case and had not set aside that order and reinstated the ease. Appellant appealed from that order of dismissal, and this court remanded the cause for trial. Tevebaugh v. Smith Land Co., 146 S. W. 647. Counsel for appellee must have a remarkably convincing style, because it seems that since the last appeal he has converted his adversary to his way of thinking, notwithstanding the judgment of this court; and appellant as now proclaiming the same doctrine he opposed here before. But if counsel is convinced, this court is not. When the cause was reversed and remanded for trial in the county court, it needed no further order to reinstate the case. This assignment is overruled.

The second assignment cannot be sustained, because, when this case was reversed before, it was remanded for trial in the county court, and that court, on the verdict of the jury, was authorized to enter proper judgment for costs. This court held on the former appeal that the case was properly within the jurisdiction of the county court of Uvalde county by reason of an appeal bond having been duly filed, and, that being true, that court could not dismiss the appeal and adjudge the costs on such dismissal. But the very fact that the court did have jurisdiction of the ease gave it the right to make all proper orders respecting costs. Appellant cites Western Union Telegraph Co. v. McKee Bros., 135 S. W. 658, in support of his contention that a judgment of dismissal deprived the court of any further power in the case, and therefore there existed no power to adjudge costs, and that it was equivalent to a dismissal of the case. This is wide the mark. The judgment of dismissal was appealed from, and this court sent the case back for a trial which was had. So it will be seen the order of, dismissal was superseded by the judgment of this court. There was no error.

Complaint is made that appellant’s special charge No. -, in effect telling the jury that if the sale was not performed on the part of the purchaser for defendant’s land in question, through no fault of defendant, the plaintiffs were not entitled to recover the commission sued for. In support of this Crum v. Slade & Bassett, 154 S. W. 351, is cited, where it is held that a sale contract, which provided that same might be defeated by the losing of forfeit money put up, would not entitle the broker to his commission. That is not an unconditional contract of sale, and may be defeated as stated. In that case $2,000 was put up as a forfeit, with the provision that if the purchaser did not comply, $1,500 went to the owner of the land and $500 to the agents. Neither does Burch v. Hester & Lawhon, 109 S. W. 399, apply, because the agent there agreed to close the deal and did not do so. The owner sold the land; and the court held that, unless he had expressly waived the right to sell the land, the owner retained that right. That was a contract that not only required the agent to find the purchaser but to actually make the sale.

The evidence of the plaintiffs in this case shows that they sold the land. It was a contract of exchange, and the evidence introduced by appellant showed that the ■ sale was actually made, for he introduced a judgment of the district court of Uvalde county, cause No. 1495, showing where he and wife sued Threadgill to rescind the sale. He failed to do this, hut the jury gave him $1,000 damages. The contract of sale was not a conditional one, but was an absolute contract for the exchange of property. It was enforceable in law.

About the sale having been consummated, we do not have to speculate, for the evidence introduced by the defendant below shows that he deeded the 180 acres of land, a part of the W. T. Lightfoot survey No. 408 and a part of survey No. 408½ in the name of E. Uron to W. W. Threadgill, and tried to recover same in the suit above referred to and failed. So there is no doubt about the sale. The contract carried no forfeiture clause. The agreed sale price or exchange value of defendant’s land was fixed at $6,840 in said contract.

Appellant complains that the court erred in refusing his special charge No. 3, to the effect that the jury would find for the defendant if they believed the purchaser, if any, for the land failed, for any reason, to carry out the contract of sale, and that through no fault .of the defendant. There was no error in this, because the contract was not a conditional one, and what is more, it was carried out. The cases of H. E. & W. T. Ry. Co. v. Keller, 90 Tex. 214, 37 S. W. 1062, and Brackenridge v. Claridge, 91 Tex. 527, 44 S. W. 819, 43 L. R. A. 593, do not apply. In the last-named case, the agent merely got a party to take an option on the land, and in the former case there were conditions. But in this case we have neither of these conditions.

The sixth assignment is without merit, and is overruled.

The first paragraph of the court’s charge is: “If you believe from a preponderance of the evidence that the defendant, H. O. Tevebaugh, listed his land with the plaintiff, Smith Land Company, for sale or trade, and that plaintiff produced a purchaser for said land on terms and conditions acceptable to defendant, and that defendant made a contract and traded the said land to the purchaser produced by plaintiff, and that defendant agreed to pay plaintiff the sum of 2½ per cent, on a valuation of $38 per acre for his land, and that said land consisted of 180 acres, then if you so find, you will find for the plaintiff, and the form of your verdict may be: ‘We, the jury, find in favor of the plaintiff, Smith Land Company, in the sum of one hundred seventy-one dollars, with legal interest from August 1, 1910.’' And one of your number sign the same as foreman” — and this is assailed in the seventh assignment as being on the weight of the evidence. The contract introduced showed' the land to be 180 acres valued at $6,840, and 2½ per cent, on that is $171. There was no issue in the case that authorized the court to charge otherwise. The plaintiff was entitled to all that amount or nothing at all. So the charge is not subject to the criticism made, and the assignment is overruled.

We find no reversible error, and the judgment is affirmed.


author: REESE, J.

text:
    ST. LOUIS, B. & M. RY. CO. v. HAMILTON.
    (Court of Civil Appeals of Texas. Galveston.
    Jan. 27, 1914.
    Rehearing Denied Feb. 19, 1914.)
    1. Appeal and Error (§ 719) — Assignments op Error — Necessity.
    Fundamental errors, such as that the petition is fatally defective, and will not support a recovery, and that the citation does not authorize a default judgment, will be considered without assignments of error.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2968-2982, 3490; Dec. Dig. § 719.]
    2. Pleading (§ 34) — Sufficiency of Petition-Objection on Appeal.
    In determining on appeal whether the petition was so fundamentally defective in its allegations as to damages as to be insufficient to support any recovery, the petition will be held good if it was good as against general demurrer.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 5½, 66-74; Dec. Dig. § 34.]
    3. Waters and Water Courses (§ 179)— Flowage — Pleadings—Sufficiency.
    In an action for damages for flowing plaintiff’s land, a petition alleging that defendant, by reason of the negligent construction of its roadbed, overflowed plaintiff’s land, injuring his growing crops in the sums of $325, $360, and $45, respectively, referring to the different portions of the property destroyed, and concluding generally with a prayer for damages, is sufficient as against general demurrer; defendant, if desiring a more specific statement, being bound to specially except to the petition.
    [Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. §§ 244r-250, 256-259, 263, 264; Dec. Dig. § 179.]
    4. Process (§ 37) — Citation—Sufficiency.
    A citation dated and signed by the clerk officially with the seal of the court is sufficiently attested without using the precise word “tested,” under Rev. Civ. St. 1911, art. 2180, providing that every writ and process shall be dated and attested by the clerk with the seal of the court.
    [Ed. Note. — For other cases, see Process, Cent. Dig. § 32; Dec. Dig. § 37.]
    5. Appeal and Error (§ 719) — Assignments of Error — Necessity—Fundamental Errors — What Constitutes.
    A claim that a verdict for damages for the overflowing of farm lands was not supported by the evidence cannot be assigned as fundamental error.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2968-2982, 3490; Dec. Dig. § 719.]
    Appeal from District Court, Jackson County; John M. Green, Judge.
    Action by J. H. Hamilton against the St. Louis, Brownsville & Mexico Railway Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Claude Pollard, R. W. Stayton, and Z. Y. Nixon, all of Kingsville, for appellant. Mc-Crory & Vance, of Edna, for appellee.

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

   REESE, J.

J. H. Hamilton instituted this action in the district court of Jackson county against the St. Louis, Brownsville & Mexico Railway Company to recover damages, alleged to be, in the aggregate, $730, for destruction of and injury to his growing crops from overflow alleged to have been proximately caused by the negligent construction of defendant’s roadbed, bridges, culverts, etc. Defendant was duly served with process, but failed to appear and answer, and default was taken. A trial was had without a jury, resulting in judgment final for plaintiff for $675. Defendant moved the court to set aside the default, and for a new trial, which was overruled, and it appeals.

There are no assignments of error; but appellant has presented what are alleged to be fundamental errors, upon which it prays that the judgment be reversed. With one exception, which will' be noted, all of the errors so presented, ,if errors at all, are fundamental, and require consideration. The errors so presented are, first, that in the allegations as to the amount of damages claimed the petition is fatally defective, and does not authorize the recovery of any damages, and, second, the citation is defective, and did not authorize the default judgment. These objections are presented by several assignments of error, which need not be separately discussed.

After stating the condition of the crops and the destruction of some portions of them and injury to others, the allegation as to damages is “to plaintiff’s damage in the sums of $325, * * * $360, and $45,” respectively, referring to the different portions of the crops injured or destroyed, and concluding generally with a prayer for his damages. The proposition stated is that “the damages recoverable for injury to and destruction of growing crops by overflow being determined by the market value of the yield that such crops would have made at maturity, less cost of raising and marketing them, and (as to those merely injured) less the market value of the yield that such crops did actually make, it is necessary in a suit for damages to allege facts showing that, but for such overflow, plaintiff at the maturity of the crops would have gotten more yield than he actually did.” It is only necessary to determine whether the petition in this particular was sufficient on general demurrer. We think it was. Under the general allegation that, by reason of the facts stated, plaintiff sustained damages to the amount stated, he would have had the right to establish the facts upon which whatever general damages were legally recoverable were based. If defendant desired a more specific statement as to these grounds, it should have specially excepted to the petition on this ground. Erie Tel. Co. v. Grimes, 82 Tex. 94, 17 S. W. 831; Kolb v. Bankhead, 18 Tex. 228; San Antonio v. Pizzini, 58 S. W. 635; Denison & S. P. Suburban Ry. Co. v. Smith, 19 Tex. Civ. App. 114, 47 S. W. 279. T. & P. Ry. Co. v. Bayliss, 62 Tex. 571, and Lumpkin v. Blewitt, 111 S. W. 1072, cited by appellant are not in point. In each of these cases there was no general allegation as to the amount of the damages; but the plaintiff undertook to set out the specific facts as to the measure of damages, but did so incorrectly. From the facts thus stated, the court could not have determined the damages legally recoverable. The petition was sufficient on general demurrer, .and all of the assignments of error presenting this objection must be overruled.

None of the objections set out in the several assignments attacking the citation are good. The citation was dated and signed by the clerk officially with the seal of the court. This was a sufficient attestation without using the precise word “tested.” Article 2180. The apparent defect in the citation as copied in the original record that the date of issuance was not shown, in accordance with the requirement of article 2180 that “the date of its issuance shall be noted on same,” was corrected by copy of the citation, sent up under certiorari to perfect the record, by which a full compliance with the statute was shown.

The sixth assignment complains of a finding of fact of the trial court as to the' damages to the grass overflowed, on the ground that it is not supported by the evidence. If error at all, this was not “error apparent of record,” and the assignment as fundamental error cannot be considered. We have, however, examined the evidence on this point, and find that the objection made is not tenable. It is not, in fact, clear that any damages on account of the injury to the grass was included in the judgment.

We have examined each of the assignments of error and the propositions thereunder, and conclude that none of them can be sustained. The judgment is therefore affirmed.

Affirmed.


author: HARPER, C. J.

text:
    WELD-NEVILLE COTTON CO. v. LEWIS.
    (Court of Civil Appeals of Texas. El Paso.
    Feb. 5, 1914.
    Rehearing Denied Feb. 26, 1914.)
    1. Pleading (§ 374) — Issues, Pbooe, and Vabiance.
    Plaintiff must prove bis case as he has alleged it and in every material particular.
    [Ed. Notei — For other cases, see Pleading, Cent Dig. §§ 1217-1223; Dec. Dig. § 374.]
    2. Sales (§ 355) — Action eob Pbice — Issues, Pbooe, and Vabiance.
    Where, in an action for the price of cotton shipped to defendant, the pétition alleged that plaintiff shipped the cotton to defendant and was to have the market value at the time of its reception by defendant, and the evidence was that plaintiff expected defendant to hold the cotton until after a certain date, and failed to show the exact date when the cotton was received, there was a failure of proof.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1025-1043; Dec. Dig. § 355.]
    3. Tbial (§ 243) — Insteuctions — Peepon-DEBANCE OP EVIDENCE.
    Where, in an action for the price of cotton, wherein defendant pleaded that it had paid another person believing him to be the owner, and estoppel of plaintiff to deny that such person was the owner, the court instructed affirmatively in one part of his charge that plaintiff must prove by preponderance of the evidence the allegations in his petition to enable him to recover¡ and in another part charged to find for plaintiff if the defendant had not established his plea of estoppel, there was error, since it could not be told upon which theory the verdict was rendered.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 564, 565; Dec. Dig. § 243.]
    Appeal from District Court, Harris County; Wm. Masterson, Judge.
    Action by F. N. Lewis against the Weld-Neville Cotton Company. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    Baker, Botts, Parker & Garwood, of Houston, and W. A. Parish, of New York City, for appellant. John I. Moore, of Crockett, and Woods & Harris, of Houston, for appellee.

      For 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 instituted by F. N. Lewis in the Sixty-First district court of Harris county to recover an alleged indebtedness of $858.35 due for 60 bales of cotton alleged to have been sold tbe defendant, Weld-Neville Cotton Company.

Tbe plaintiff alleged in substance: (1) That about December 17,1910, and for a long time prior thereto, and ever since said date, tbe defendant was and is engaged in buying and selling cotton in tbe city of Houston, Harris county, Tex.; that it usually, frequently, and customarily bought cotton from customers throughout tbe state of Texas, and usually, frequently, and customarily bad its customers ship to it cotton, either directly or through some local bank in the city of Houston, and would receive such cotton and account to its customers thereafter, and pay to such customers the market value in the city of Houston, on the date of its reception, according to its grade, quality, and classification, and would remit to such customers the value thereof. (2) That on December 17, 1910, the plaintiff shipped from Lovelady, Tex., 60 bales of cotton consigned to the Eirst National Bank of Houston, Tex., with draft against the defendant company for the sum of $3,500 attached to the bill of lading, with instructions to notify the said Weld-Neville Ootton Company. (3) That the defendant company frequently and customarily received cotton from customers throughout the state, with bill of lading consigned to some local bank in the city, with draft attached for a part of the value of said cotton so shipped; that said local bank understood upon receipt of said bill of lading and draft, and was so instructed by plaintiff, to deliver the bill of lading to the defendant company and collect the amount of the draft attached. (4) That the value of said cotton so shipiJed at the time it arrived in Houston was $4,362.-60, and, after deducting the sum of $4.25 as exchange, there was a balance of $858.35 owing plaintiff by defendant company. In other words, the plaintiff brought this suit to recover the $858.35 sued for, or any other sum.

The defendant answered by general demurrer, general denial, and specially pleaded: (1) That plaintiff was not entitled to recover herein for the reason that the defendant paid one C. C. May the $858.35 which the plaintiff sues for, believing, as the defendant had the right to believe, that the said May, so far as the plaintiff was concerned, was the real owner of said 60 bales of cotton, and was entitled to receive the proceeds of the sale of said cotton after said draft was paid; and the plaintiff is estopped to deny that such was the case because: (a) That between December 17 and December 19, 1910, a draft for $3,504.25 drawn at Lovelady, Tex., by one F. N. Lewis, in favor of the First National Bank of Lovelady, indorsed by this bank and secured by a bill of lading on 60 bales of cotton, was presented to it. That defendant had not been notified by anybody of that name that he intended to ship the defendant any cotton, and the defendant was not doing business with anybody by that name at Lovelady, Tex. That the defendant did not know at what price the owner of the said cotton wanted to sell it, or when he wanted it sold, or what he wished done with the proceeds. That when the draft was presented the cotton had not arrived in Houston, and the defendant could not safely, and would not on the face of the papers alone, pay the draft, because it knew nothing about the real weight, grade, or class of said cotton. That it was necessary that it should receive some other information about the shipment, and this the said F. N. Lewis was bound to have known, (b) That, at and before that time, O. O. May was known by the defendant to be a buyer of cotton in the neighborhood of Lovelady, and the defendant had bought some cotton shipped to it from Lovelady by the said May. That defendant notified May of this draft and he showed a perfect familiarity with the same, and repr resented to the defendant that the shipment had been made by Lewis to him; the arrangement between him and Lewis being that Lewis should draw on the defendant the amount of the draft and receive the balance, if any, of the sale of cotton from said May. That the bill of lading accompanying the draft was negotiable in form, and was indorsed in blank by said Lewis.

The plaintiff, in his first supplemental petition, pleaded general demurrer, general denial, and specially denied that he ever authorized O. C. May to collect any money from the defendant, or authorized the defendant to pay same to the said May. The case was tried on November 19, 1912, and resulted in a verdict and judgment for appellee for the sum of $858.35, with interest at 6 per cent, from January 1, 1911.

Appellant’s first and second assignments charge that the court erred in not instructing a verdict for him because the evidence was not sufficient to support a verdict and because the allegations in plaintiff’s petition did not correspond with the proof.

In view of another trial of this cause, we refrain from discussing the above assignments further than with the observation that the plaintiff must prove his ease as he has alleged it, and in every material particular. The plaintiff alleged that the shipment was made to Weld-Neville Company. The proof is that, whatever his intentions were in the shipment, he was following instructions given by one May, who in no way represented Weld-Neville Company. Again, if Weld-Ne-ville Company are to be held for the price of the cotton, the proof as to price to be paid must be proved, as alleged.

The allegation in this case is that he was to have the value of the cotton at the time it arrived in Houston, and the evidence indicates that he expected them to hold it until after a certain date; besides the evidence is rather indefinite as to the price of cotton at the date plaintiff alleged current prices should control. Witness Cairnes is the only witness who attempts to testify as to the price of the cotton, and the jury evidently rendered their verdict upon his statement that “when the cotton was sold there was a balance due of $858.35,” and no witness anywhere attempted to fix the date of the arrival of the cotton in Houston, so the amount found may be either more or less than the price of cotton at the date of its arrival in Houston, which must be the measure of plaintiff’s recovery, if at all, for that is the allegation.

In his third and fifth assignments appellant complains that the court erred in his charge upon estoppel as pleaded by defendant, below, which charge is as follows, to wit:

“(7) If you believe from the evidence that the defendant customarily bought cotton from customers throughout the state of Texas, and had them ship it cotton at Houston and would receive such cotton and account to said customers for the market value of said cotton in the city of Houston on the date of its reception, and if you believe that the plaintiff shipped 60 bales of cotton consigned to the order of the First National Bank of Lovelady, Tex., with a- draft against the defendant for $3,504.25 attached to the bill of lading, with instructions to notify Weld-Neville Cotton Company, then you will find for the plaintiff for the difference, if any, between the amount of said draft and the value of said cotton at the date of its reception in Houston, unless you find for the defendant under the instructions hereinafter given you.
“(8) The burden is on the plaintiff to prove the facts necessary to entitle him to recover, as herein charged, and, unless you find said facts from afpreponderanee of the evidence, you will return your verdict for the defendant.
“(9) The defendant alleges that either the plaintiff expressly authorized the said C. C. May to control and dispose of the shipment of cotton and himself settle with plaintiff, or the plaintiff acted in such a way as reasonably to cause the defendant to believe that such was the fact, and that plaintiff is es-topped thereby. On this branch of the case, I charge you that when a person, by words or conduct which are calculated to mislead, causes another person, acting with reasonable prudence, to believe in the existence of a certain state of facts, and thereby induces him to act on that belief so as to change his previous condition, the person so inducing such belief will be estopped from afterwards denying the existence of such state of facts to the prejudice of the person so acting. Thus, if you should find that the plaintiff drew a draft for $3,504.25 on the defendant with bill of lading for 60 bales of cotton attached to it, indorsed in blank, and that the plaintiff did not communicate with the defendant about said cotton either before it was shipped or for some time afterwards, but you find that the plaintiff informed one O. O. May of his intentions in regard to said cotton, and if you believe from the evidence that said nonassertion of any claim or interest in said cotton by the plaintiff during said time, coupled with other facts, if any, alleged by the defendant and found by you, was reasonably calculated to cause the defendant, acting with reasonable prudence under the circumstances, to believe that the said May was the owner of said cotton, and if you find the facts necessary to constitute estoppel,, you will return your verdict for the defendant.
“(10) If you do not find the facts necessary to support the plea of estoppel as set forth in the preceding paragraph, then you will find against the defendant on this issue.
“(11) Whether the plaintiff did or did not so act with relation to the shipment of the cotton and to the handling of it as to induce defendant to reasonably believe that May was authorized to receive payment of the balance of $858.35 and thereby bring about such condition and such belief on defendant’s part as was sufficient, under instructions given you in paragraph 9, to estop plaintiff to deny May’s authority to receive the payment is a question of fact for you to determine. If he did not so act, he is entitled to recover. If he did, he is not.”

It will be noted that in paragraph 7 the jury are charged affirmatively that plaintiff must prove by a preponderance of the evidence the allegations in his petition to enable him to recover, and in paragraph 11 they are charged in effect to find for plaintiff if the defendant has not established his plea of estoppel. No one could tell upon which theory the verdict was rendered. Baker v. Ashe, 80 Tex. 361, 16 S. W. 36.

The charge being manifestly erroneous, the cause must be reversed and remanded for a new trial, and it is so ordered.


author: MOURSUND, J.

text:
    GUERRA v. SAN ANTONIO SEWER PIPE CO.
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 4, 1914.)
    1. Evidence (§ 366) — Foreign Records— Admissibility.
    A copy of a record of birth kept in a foreign country is inadmissible in evidence, without proof of the existence of a law in the foreign country requiring the keeping of such records.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1521-1539; Dec. Dig. § 366.]
    2. Evidence (§ 366) — Documentary Evidence-Copies.
    A copy of a record of birth kept in a foreign country is inadmissible in evidence, where there is no proof of the genuineness of the original record or of the copy.
    [Ed. Note — For other cases, see Evidence, Cent. Dig. §§ 1521-1539; Dec. Dig. § 366.]
    3. Appeal and Error (§ 970) — Evidence (⅞ 498½) — Opinion Evidence — Admissibility.
    The question of the admission of evidence of the opinion of a nonexpert witness rests largely in the' discretion of the trial court, and its ruling will not be disturbed unless it clearly appears that such discretion has been abused.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3849-3851; Dec. Dig. § 970 ; Evidence, Cent. Dig. §§ 2290, 2291; Dec. Dig. § 498½.]
    4. Evidence (§ 501) — Opinion Evidence-Nonexpert Witness.
    While a nonexpert witness cannot ordinarily give opinion testimony which does not rest upon facts stated by him, or is not acquired through the use of his senses, the witness need not always state the facts upon which his opinion rests, it being sufficient that he had the means and opportunity for knowledge; for many matters of evidence are incapable of expression except in terms of opinion.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2292-2305; Dec. Dig. ■§ 501.]
    5. Evidence (§ 474½) — Opinion Evidence-Admissibility.
    A witness who was negotiating with a foreigner through an interpreter may, where it appears that the negotiations had been continued for a considerable length of time, give his opinion as to whether the foreigner made intelligent replies to his inquiries.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2220-2233Dec. Dig. § 474½.]
    6. Trial (§ 255) — Instructions—Necessity.
    In a personal injury action plaintiff cannot complain that the court’s charge did not apply the law of proximate cause to the facts of the case, where no specific charge on that point was requested.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 627-641; Dec. Dig. § 255.]
    7. Appeal and Error (§ 882) — Persons Entitled to Allege Error.
    A party cannot complain of the giving of an instruction prepared by his own attorneys.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3591-3610; Dec. Dig. § 882.]
    Appeal from District Court, Wilson County ; F. G. Chambliss, Judge.
    Action by Ladislao Guerra against the San Antonio Sewer Pipe Company. From a judgment for defendant, plaintiff appeals.
    Affirmed.
    Luther A. Lawhon, J. E. Canfield, and James A. King, all of Floresville, for appellant. Houston, Boyle & Storey and Terrell, Walthall & Terrell, all of San Antonio, for appellee.

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

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

   MOURSUND, J.

Ladislao Guerra, by next friend, sued the San Antonio Sewer Pipe Company, the Texas Clay Works, the San Antonio & Aransas Pass Railway Company, and W. S. Dickey, alleging that on February 3, 1912, he was a minor, 18 years of age, and an employs of said Sewer Pipe Company and the Texas Clay Works as a common laborer, under the direction and control of George Garcia, a foreman, who on that date ordered plaintiff to go on top of a box car and unloose the brake, in order that the car might be rolled down the track; that plaintiff did so, and while upon said car it was run into by another,car which had negligently been left standing by said foreman, and plaintiff was thrown from the car, and both arms broken and was otherwise injured. The Sewer Pipe Company answered by general demurrer, general denial, pleas of contributory negligence and assumed risk, and that injury was caused by a fellow servant, also that if plaintiff was injured, he had been fully settled with by said company and had been paid $175- in full for all claims on account of his injuries, and had executed a release therefor. By supplemental petition plaintiff denied that defendants had settled with him, and alleged that when the purported release was signed by Mm he was in an unconscious state, and was at the time a minor, and therefore incapable of executing a valid release. The railway company answered by demurrer, general denial, and plea for judgment over against the Sewer Pipe Company in case any judgment should be obtained against such railway company. W. S. Dickey, personally and under the name of the Texas Clay Works, answered, and adopted the answer of the Sewer Pipe Company. The trial resulted in a verdict and judgment in favor of defendant. Plaintiff appealed.

By the first assignment of error complaint is made because the court refused to admit in evidence an instrument reading as follows: “In the name of the republic of Mexico and as judge of the civil state of this place do make known to all who may see the present and certify be true that in the Book No. S of the Civil Register, which is in my care, corresponding to the year 1893, at page 28, is found an act of the following tenor: On the margin: Ladislao Guerra. Act Fifty-Nine. In the village of Marin on the 5th day of the month of May of the year 1893 — one thousand nine hundred ninety-three — before me, the judge of the civil state, there came Don Cruz Guerra, 50 years of age, by occupation a stockman, and said that on the 4th of the present month, at 5 o’clock p. m., at his house in this town, a child was born who was named Ladislao Guerra; the same was presented to me in this office as legitimate son of Ladislao Guerra, the legitimate son of this affiant and the deceased, Mrs. Agapia Cantu, and of his wife, Dona Saturnia Guerra, 24 — twenty-four—years of age, legitimate daughter of Don Melchor Guerra, and Dona Anastacia Lazano, all settlers and living in this village. All of which in compliance of the law I have made present by these presents, which I read to the affiant in the presence of the witnesses, Don Jose Maria Garza and Don Simon Martinez, of lawful age, farmers of this vicinity, who did not sign with me, the judge, because they did not know how.

“Jesus Gonzales. [Seal.]

“Garza, Simon Martinez, Rubrics.”

“This is a copy of the original, and concurs in all with it and is found in the book and page cited. Marin, April 13, 1912.”

The assignment is not followed by any proposition, and it is doubtful whether it meets the requirements necessary to constitute it a proposition, as it urges no reason why the ruling constituted error, other than pointing out that the testimony would have been beneficial to plaintiff. However, we conclude there was no error in the court’s ruling.

This instrument was not accompanied by proof of the existence of any law of the republic of Mexico requiring the keeping of such records. There was no proof of the genuineness of the original record by facts and circumstances, or by any person able to testify thereto. The evidence does not disclose who is the proper custodian of such record, and who is authorized to certify to copies thereof. If the law be proved, and the genuineness of the record, an examined copy can be used, or a certified copy, but in the latter case the genuineness of the signature of the officer certifying thereto must be properly authenticated. Greenleaf on Evidence, § 488; Elliott on Evidence, § 1366; Bryant v. Kelton, 1 Tex. 435; Phillips v. Lyons, 1 Tex. 392; Smith v. Smith, 1 Tex. 625, 46 Am. Dec. 121; In re Peterson’s Estate, 22 N. D. 480, 134 N. W. 751; Royal Neighbors v. Hayes, 150 Ky. 626, 150 S. W. 848; Florsheim v. Fry, 109 Mo. App. 487, 84 S. W. 1023; Wilcox v. Bergman, 5 L. R. A. (N. S.) note, page 943. The instrument, being offered without any such proof as would entitle it to admission, was properly excluded by the court.

By the second assignment appellants complain of the admission of certain testimony of Gus Ermler. Defendant had proved by Garcia that Ermler was present during the conversation between Garcia and plaintiff, which occurred about 4⅛ hours after plaintiff was injured, and that upon said occasion Garcia, Bradford, the-claim agent, and Ermler were with plaintiff about an hour before he signed the release pleaded by the Sewer Pipe Company. Ermler testified that he and Garcia and Bradford went to where plaintiff was, and asked him what kind of a settlement they could get out of him, and offered him $150, which he refused to accept, saying that he did not think it was enough, so they figured out the time he would be delayed and his board and doctor bills, estimating the amount he should receive at $150, but he refused to accept it; that then they raised their bid $25, and he accepted same; that, not having enough money to pay the $175, Ermler went back home and got a cheek for $90 or $95 to make up the $175; that when he came back Garcia told him plaintiff had refused to accept the amount; that the lady there had talked him out of it, so Bradford told Garcia to ask plaintiff if he did not think the amount was sufficient; that he, Ermler, was about 12 feet from plaintiff at the time, Bradford and Garcia being betwen him and plaintiff; that Garcia set next to the bed and did the translation ; that finally plaintiff agreed to take the amount offered; that the release was read and explained to plaintiff, Bradford reading it in English, and Garcia translating it word for word. Then Ermler was asked the questions : (1) Whether or not plaintiff, at the time and during all the time of .such conversation, was in possession of his mental faculties and knew what he was doing. To which he answered: “I think he was. He was. (2> State whether or not during the time you were in the room the questions which Garcia asked were intelligently replied to, or not, by the plaintiff.” To which he answered: “How was that? (3) While you were in the room, as I understand it, Mr. Garcia talked to the plaintiff? Answer: Tes, sir. (4) During the talk he asked him various questions? Answer: Yes, sir. (5) State whether or not in making replies to those questions plaintiff made intelligent replies. Answer: He did. (6) State whether or not you judge from the answers he made that he understood the questions being asked. Answer: Why, yes.” The assignment is not followed by a proposition, but as it makes the point that Ermler, being a layman, had not stated the facts upon which to base his opinion as to the condition of plaintiff’s mind, and, in the absence of such statement of the facts, his testimony was incompetent, we will treat the assignment as a sufficient proposition in itself, and consider the same. The extent of Ermler’s knowledge of the Spanish language is not disclosed by the record. It appears that Garcia translated, but whether this was for the benefit of both Ermler and Bradford, the claim agent, does not appear. Probably Ermler was not proficient in the language, or-he would have talked to plaintiff without the aid of Garcia. However, the extent of his knowledge of the language, it occurs to us,, was very material as affecting the weight of his testimony. But, even though he did not understand the language, we think he had stated sufficient facts to qualify him to express his opinion on the matters asked him, to which objection was made. He was in the the room a considerable time, as he testified that his absence for the purpose of getting-the check did not last over 20 or 30 minutes, and his estimate of the total time of the-visit was 1½ hours. He heard the plaintiff carry on a conversation with Garcia, and saw plaintiff during the time. No man situated as Ermler was, and hearing what he swore he heard, could fail to form some opinion as to whether plaintiff understood the questions asked him, and knew what he was-doing. “It is in the province of the court to decide whether the facts on which a nonex-pert witness’ opinion as to the testator’s-sanity is based entitles him to express his opinion to the jury.” Lawson on Expert and Opinion Evidence, page 555. The determination of this question is left largely to the discretion of the trial court, and its ruling will not be disturbed unless it clearly appears that such discretion has been abused. Ryder v. State, 38 L. R. A. 738, note; Byrd Irrigation Co. v. Smyth, 157 S. W. 262.

The reasons for receiving nonexpert opinions in evidence are well expressed in the following quotation from the opinion of the Supreme Court of Connecticut in the case of Atwood v. Atwood, 84 Conn. 169, 79 Atl. 59, 37 L. R. A. (N. S.) 591: “An opinion of a non-expert witness which does not rest upon facts stated by him, or is not acquired through the use of his senses, may not be laid in evidence. Turner’s Appeal, 72 Conn. 305, 315, 44 Atl. 310. The witness may state the facts on which the opinion rests. He is not required to do so. He must show that he had the means and opportunity for knowledge. His opinion without this foundation is inadmissible. When, however, a subject is relevant to the matter in suit, and the lay witness has had the means and opportunity of acquiring knowledge of the subject through the use of his senses, and the impression or opinion is formed from . constituent facts and conditions which are so numerous or so complicated as to be incapable of separation, or so evanescent in character they cannot be fully recollected or detailed or described or reproduced, so as to give the trier the impression they give the witness, or so as to enable the trier to draw a fair inference from such facts and conditions, he may be permitted to testify to the impression or conclusion obtained by h'im from them, leaving it to the cross-examination to develop the foundation for the impression or conclusion. Spencer’s Appeal, 77 Conn. 638, 643, 60 Atl. 289; Turner’s Appeal, 72 Conn. 305, 315, 44 Atl. 310; Chamberlain v. Platt, 68 Conn. 126, 130, 35 Atl. 780. The exceptional witness may be able at times to describe the eye or the action of a man; but he cannot convey distinctly to another the appearance of the man to him unless he may give the impression made upon him, or the conclusion reached by him, from the mán whom such acts and look -portray. We cannot express in words the facts and conditions which lead us to the opinion that one is under the influence of hate or love, pain or pleasure, hope or fear. We cannot describe exactly our own emotions, sentiments, and affections, much less those of another. Memory may retain no single detail, indeed one may never have recognized a single detail, yet the appearance of the man may have left upon the minds an indelible impression as to his physical and mental condition. Clear before him is the picture of what he saw — a man healthy or sick, strong or fragile, well, or poorly, changed in health for better or worse, composed or nervous, excited or despondent, tired or exhilarated, intellectual or weak-minded, conscious or unconscious, suffering or happy. In truth, that which we call opinion is fact. The impression or conclusion is the sum of what he saw, and in its final analysis the offer is to prove a fact, and not an opinion. 3 Wigmore, Ev. § 1918; Turner’s Appeal, 72 Conn. 305, 315, 44 Atl. 310.”

We are of the opinion that the court did not abuse the discretion vested in him in holding Ermler qualified to express an opinion on the matters covered by the questions objected to. Appellant cites the cases of Railway v. Brantley, 26 Tex. Civ. App. 11, 62 S. W. 96; Haney v. Clark, 65 Tex. 93; Galloway v. Railway, 78 S. W. 32, in support of his contention. These cases are not regarded by us as sustaining the contention that it was' error to permit Ermler to give his opinion. The assignment is overruled.

By the third assignment it is insisted that while the court defined proximate cause, it did not apply the law of “proximate cause” to the facts of the case. The charge in two paragraphs, wherein liability was to be considered because of Garcia’s orders, and the railway company’s failure to lock the rear car, is more favorable to appellant than if recovery had been limited to acts proximately causing injury. In paragraph 16, submitting liability because of the act of Armabeda, a fellow servant, the law of proximate cause is applied. Appellant was not injured in any way by the omission complained of. However, if he desired a more specific charge on any point it was his duty to request it. Railway v. Hughes, 73 S. W. 976; Railway v. Mangham, 29 Tex. Civ. App. 486, 69 S. W. 80; Lumber Company v. Meyers, 94 S. W. 140; Railway v. Culpepper, 19 Tex. Civ. App. 189, 46 S. W. 922; Telegraph Co. v. Griffin, 27 Tex. Civ. App. 306, 65 S. W. 661.

In this case the record disclosed that appellant’s attorneys prepared the charge, and that as to this particular matter no change was made therein by the court, and therefore appellant cannot complain. Railway v. Kurtz, 147 S. W. 661.

Judgment affirmed.