author: WALTHAEE, J.

text:
    KANSAS CITY, M. & O. RY. CO. OF TEXAS et al. v. ODOM.
    (No. 550.)
    (Court of Civil Appeals of Texas. El Paso.
    April 13, 1916.
    Rehearing Denied May 4, 1916.)
    1. Trial <§=>349(1) — Submitting Spectal Issues.
    Submitting or refusing to submit special issues of fact raised by the evidence is not the giving or refusing of special charges, and so not' controlled by the rules applicable thereto.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 823; Dec. Dig. <§=>349(1).]
    2. Trial @=5350(6) — Special Issues — Ultimate Pacts — Delay in Transportation.
    The ultimate issue of negligence, in an action against a carrier for delay in transportation, was properly and sufficiently submitted by a special issue, whether the delay, if any, or any part of it, and if any, what part could have been avoided by the exercise of ordinary care, rather than by special issues on evidentiary and inconclusive facts, as whether the accident to the train was unavoidable; this not necessarily including the idea of an unavoidable delay resulting therefrom.
    [Ed. Note.- — Por other eases, see Trial, Cent. Dig. § 830; Dec. Dig. <§=^350(6).]
    3. Carriers <§=>104 — Negligent Delay in Transportation — Evidence.
    Evidence in an action for delay in transportation of a live stock shipment held not to support the finding of period of delay which could have been avoided by exercise of ordinary care.
    [Ed. Note. — Por other cases, see Carriers, Cent. Dig. §§ 439-447, 459 — 461.; Dec. Dig. <§== 104.]
    4. Carriers @=>177(2) — Connecting Bines— Biability.
    Where the initial carrier agrees to transport only to a certain point, though the shipment is consigned to a point beyond, there is no through contract of shipment, necessary for joint liability of the connecting carriers.
    LEd. Note. — Por other cases, see Carriers, Cent. Dig. §§ 776, 777; Dec. Dig. @=>177(2).]
    5. Carriers <§=>96 — Time of Transportation-Implied Contract.
    Where the contract of shipment does not obligate the carrier to deliver at a special time, or on a special market, an agreement to deliver in a reasonable time is implied; so that no necessary or reasonable delay constitutes a breach of the carrier’s duty.
    [Ed. Note. — Por other cases, see Carriers, Cent. Dig. §§ 396-426; Dec. Dig. <®=>96.]
    Appeal from District Court, Pecos County; W. C. Douglas, Judge.
    Action by John M. Odom against the Kansas City, Mexico & Orient Railway Company of Texas and another. Judgment for plaintiff, and defendants appeal.
    Reversed and remanded.
    H. S. Garrett, of San Angelo, and Williams & Jackson, of Ft. Stockton, for appellants. Sanford & Wright, of Eagle Pass, for appel-lee.
   WALTHAEE, J.

By his suit filed in the district court of Pecos county, appellee, John M. Odom, sought to recover damages of the two appellants, railway companies, alleged to have been occasioned by delay in the shipment of cattle to market from Ft. Stockton to Ft. Worth, Tex. He alleged a delivery of 83 head of cattle, consisting of cows and steers, to the Orient Company in its stock pens at Ft. Stockton at about four o’clock p. m., September 20, 1914, under a contract to ship same over its line to Sweetwat-er and from there over the Texas & Pacific Railway to consignees at Ft. Worth. Appellee alleged a negligent delay in the shipment of said cattle on both roads; alleged that the customary, ordinary, and reasonable time to transport cattle from Ft. Stockton to Ft. Worth is from 30 to 33 hours; that by ordinary care' and diligence said cattle would have reached Ft. Worth by ten o’clock on the morning of September 22d, hut that' the shipment was negligently and unreasonably1 delayed en route about 24 hours, reaching Ft. Worth about 10 o’clock on the morning of September 23d. Appellee alleged that, in consequence of said delay, said cattle shrunk in weight and deteriorated in quality in excess of what their shrinkage and deterioration would have been, had the shipment been made in ordinary time; and it was for damage resulting from this additional loss in weight and quality that appellee sued.

Appellant Orient Railroad answered by general demurrer and general denial; denied any liability for any delay on the Belt Bine at Ft. Worth; alleged that the cattle were forwarded from the initial point on the first train going east to Sweetwater after the cattle were placed in the stoclspens; alleged that appellant used due diligence and dispatch, and made good time in the movement of the cattle until an unavoidable accident happened to the engine and boiler pulling the train; that the accident consisted of the breaking of a steel bar, a part of the steam rigging on the inside of the engine boiler, rendering it necessary to secure another engine to pull the train; appellant alleged a careful inspection of said engine and boiler, due care in operating the engine and boiler, and that the breaking of said steel bar could not have been foreseen or prevented by the use of ordinary care; that the breaking of said bar occasioned all the delay that occurred on its road. Appellant alleged that the shipment was not enough to make a trainload, or to require appellant to send same out on an extra train, and that the cattle were shipped from the initial point on the first train, and that the cattle were shipped at the earliest moment same could have been shipped without shipping by special train.

The only agreement or contract pertaining to the transportation of said cattle found in the record is as follows:

“Agreed by counsel for both sides that plaintiff, John M. Odom, signed a 36-hour release when this shipment of cattle was made, and also that no other contract was made with the Kansas City, Mexico & Orient Railroad, but that the road only agreed to transport the cattle to Sweetwater; that each road contracted that it should not be liable for damages except on its own road; the contract showed that the cattle were consigned to Ft. Worth.”

The appellant Texas & Pacific Railway Company answered by general demurrer and general denial; alleged that by contract it lim-itated its liability to damage occurring on its own line; pleaded appellee’s 36-hour release contract; alleged that the cattle were shipped over its line with due dispatch to Baird on its line; that Baird is a division point; that when the shipment reached Baird the cattle had then been on the road so long that it was impossible to reach a place beyond suitable to unload them within the 36 hours, by reason of which it was necessary to unload, feed, and water said cattle at Baird; that at Baird the cattle were reloaded and shipped into Ft. Worth and there delivered to the Belt Railway in due time and with reasonable dispatch. Appellant the Texas & Pacific Railway Company alleged that the cattle were handled by it without accident or unusual delay and that the only delay occurring on its line was in the necessary watering and feeding at Baird; alleged that the shipment of the cattle was not enough to make a trainload, and was not sufficient to authorize or pay or require it to send out an extra train, .and that the cattle were shipped from Sweetwater on the first train and at the earliest moment same could be shipped without making up and sending a special train; that said cattle could not have been delivered by it to Ft., Worth in title to get on any earlier market than the one they were sold on, had it not stopped the shipment to feed and water at Baird.

On special issues submitted to them, the jury found: That the transportation of the shipment of the cattle from Ft. Stockton to Ft. Worth consumed more than the usual and ordinary length of time for transporting such shipments; that is, that there was a delay in the transportation of said cattle; that such delay could have been avoided by the exercise of ordinary care on the part of the defendants; that about 23 hours in time the shipment was delayed in transportation could have been avoided by the exercise of ordinary care; that the delay resulted in damage,to plaintiff; that 25 pounds per.head was the difference in the shrinkage of the cattle in the condition in which they arrived and the condition they would have arrived in, had there been no delay which could have been avoided by the exercise of ordinary care; that the difference in the market value per 100 pounds of said cattle in the condition in which they arrived and the condition in which they would have arrived, but for the delay, is 15 cents per 100 pounds, a total damage of $203.68. Upon these findings of the jury, the court entered judgment for plaintiff.

Appellants complain in their first assignment of the refusal of the court to submit to the jury special issues 3 and 4, tendered to the court by them for submission. The third special issue submitted reads: “Was the accident to the engine throttle rigging, testified to and for which it is claimed in the evidence that there was 6 hours and 35 minutes delay, unavoidable?” The fourth special issue submitted is very similar in meaning and reads: “Could said accident have been avoided by the use of ordinary care on the part of the K. C., M. & O. Ry. Co. of Texas and its agents and em-ployés?” Several objections are made to the consideration of this assignment. The objections are presented on the assumption and invoke the same rules that apply to the submission of special charges. Submitting special issues of fact raised by the evidence or refusing such submission is in no sense the giving or refusing to give a special charge, and hence not controlled by the rules applicable to the giving or refusing of special charges. Shaw v. Garrison. 174 S. W. 942; Texarkana & Ft. S. Ry. Co. v. Casey, 172 S. W. 729; Tomson v. Simmons, 180 S. W. 1141. The Supreme Court of this state in G., H. & S. A. Ry. Co. v. Cody, 92 Tex. 632, 51 S. W. 329, said that a request to submit a case on special issues is not a charge refused, and stands upon a different footing. The court refused to submit both of the special issues to which the’appellants duly excepted, and made the refusal to submit each of the special issues separate grounds for a new trial in their amended motion. The court approved the bills of exception with the explanation “that the accident in question was not an issue raised by the pleadings, but was merely an evidentiary issue, and because same was one of 15 different issues embraced in an omnibus request.” We are of the opinion that the issues submitted were evi-dentiary facts merely, and did not go directly to the issue before the court. A jury might find that an accident itself is unavoidable, as submitted in the third issue, and that an accident itself could not be avoided by the use of ordinary care, as submitted -in the fourth issue, and yet. have found that a delay caused by an unavoidable accident •could be avoided by the exercise of ordinary diligence. We must not be understood as holding that the delay in this particular case ■could have been avoided, but we mean only to point out that an unavoidable accident does not necessarily include the idea of an unavoidable delay resulting therefrom. The question of the avoidance of the delay was the issue before the court and not the cause ■of the delay; in other words, the avoidance ■of the result of the accident rather than the avoidance of the cause. The court submitted to the jury, in two separate special issues, the following: “Whether or not such delay, if any, or any of it, could have been .avoided by the exercise of ordinary care” nnd “How long in time said shipment was ■delayed, if at all, in transportation which could have been avoided by the exercise of ■ordinary care.” We think the issue of negligence was sufficiently and properly submitted to the jury by the above charges.

In appellant’s second assignment of error, complaint is made that the finding of the jury, that about 23 hours in time the shipment was delayed in transportation could have been avoided by the exercise of ordinary care, is not supported by the evidence. The estimate of the damage to the cattle in the Et. Worth market is based entirely upon this finding. In order to find from the evidence that the shipment was overly delayed 23 hours, it is necessary to take into the estimate the time lost on the Orient road occasioned by the breaking of the rod in the engine boiler, and the time consumed in feeding and watering the cattle at Baird, Tex., ■on the Texas & Pacific Road. Plaintiff’s suit is for the delay in the transportation of the cattle from Et. Stockton at 1:55 a. m. on September 21st, and were delivered to the Texas & Pacific Railway Company at Sweetwater at 12:45 a. m. on September 22d. .The distance from Et. Stockton to Sweetwater is 241 miles; 16.4 miles per hour is the schedule on that train on time-card. The transportation of the cattle on the Texas & Pacific road from Sweetwater commenced on the first train going to Et. Worth at 3:30 p.m., September 22d, .and arrived at Baird at 7:55 a. in., same day. ‘The cattle had then been in the cars about 30 hours and 20 minutes. The undisputed evidence shows that from Baird, a division point, the shipment could not reach another division point before the expiration of the 36 hours. Under the law it was necessary to unload, feed, and water the cattle, which was done. Plaintiff testified that the ordinary and customary time in making a shipment from Et. Stockton to Ft. Worth is from 31 to 32 hours to 36 hours. It seems evident from the allegation and proof as to the ordinary and customary time that it takes to make a shipment of cattle from Ft. Stockton to Ft. Worth, should there be a delay in the transportation for as much as four or five hours, whether the delay is avoidable or unavoidable, that it would be necessary at some point between Et. Stockton and Ft. Worth to unload, feed, and water, even with the 36-hour release. Under the contract above stated the Orient road agreed to transport only to Sweetwater; and each road by the contract limited its liability to damage occurring on its own line of road. In order to even approximate in time the 23 hours delay between the initial and terminal points in the transportation of the cattle, it would be necessary to add together the several delays occurring on both the roads. If the damage caused by the delays on the Orient road be added to the damage caused by the delays on the Texas & Pacific road, it would seem to violate the contract that each' road should be liable only for the damage occurring on its own line. While the shipment was consigned to Et. Worth, the contract is stated to be that the Orient road agreed to transport it only to Sweetwater. Undei similar conditions, where there was no through contract of shipment, the Supreme Court of this state in Galveston, H. & S. A. Ry. Co. et al. v. Jones, 104 Tex. 92, 134 S. W. 328, said:

“There being in this case no contract for through shipment, the fact that the second company received and transported the cattle is not sufficient to create the joint liability declared by article 331a, and the Com-t of Civil Appeals erred in so holding. In order to bind the second or subsequent companies jointly with the first, or with any of the other companies, there must be something more than the receiving and transporting the goods or property, because the law required the carrier to so receive and transport such freight when tendered to it.”

Where the contract does not obligate appellants to deliver the cattle at a specified time, nor on a special market, the law implies a contract to deliver within a reasonable time. No necessary or reasonable delay would constitute a breach of its duty. G., H. & S. A. Ry. Co. v. Warnken, 12 Tex. Civ. App. 645, 35 S. W. 72.

The damages were assessed on the basis of 23 hours delay. We are of the opinion that the plaintiff’s evidence is. insufficient to show a delay on the Orient road of tune in any way approaching 23 hours, which could have been avoided by the said company; and the evidence is insufficient to show any loss of time on the Texas & Pacific, that could have -been avoided by it, under the law requiring the cattle to be unloaded, watered, and fed. It appears from the evidence that the entire time consumed by the Orient road in transporting the cattle from Ft. Stockton to Sweet-water was about 25 hours and 10 minutes. The schedule time for local freight on that road was shown to be 16.4 miles per hour, and the distance from Pt. Stockton to Sweet-water is 241 miles, showing a loss of time after the loading of the cattle of about 11 hours and 10 minutes. The evidence does not disclose the time when the cattle should have been loaded at Ft. Stockton had the train been on time. Appellee was notified that the cattle would be loaded about eight o’clock p. m. on the 21st. Should we add six hours as unnecessarily lost time in loading the cattle ■after notice that the cattle would be loaded, and deduct, as we think we must, the 6 hours and 85 minutes time lost by the breaking of the rod in the boiler, we have not exceeded 12 hours that could possibly have been avoided by ordinary care upon the part of the Orient Railway Company. Therefore, the testimony being the same upon another hearing, the Texas & Pacific is not liable for any damages, and the Orient liable, if at all, only for the unavoidable delays upon its road, as above stated, not more than 12 hours. Therefore, the testimony not being conclusive as to the exact time of delay, and the consequent damages, the cause must be reversed and remanded.
      <§=>For other oases see same topic and KEY-NUMBER In all Key-Numbefed Digests and Indexes ' •


source: Caselaw Access Project

author: HARPER, C. J.

license: Public Domain

text:
    ATCHISON, T. & S. F. RY. CO. et al. v. SHADDEN.
    (No. 549.)

    (Court of Civil Appeals of Texas. El Paso.
    April 13, 1916.
    Rehearing Denied May 4, 1916.)
    1. Railroads <§=>398(1) — Injuries Near Track— Sufficiency oe Evidence.
    In an action for personal injuries received while walking along a street 'beside a railroad track, evidence held sufficient to support a finding of the jury in favor of the allegation of the plaintiff’s petition that some object, the nature of which was unknown to the plaintiff, projected over the side of a car and struck him.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1356, 1363; Dec. Dig. <§=>39S(1).]
    2. Railroads <§=>398(1) — Injuries Near Track — Sufficiency oe Evidence.
    In an action for personal injuries received while walking along a street beside a railroad track, evidence held sufficient to support a jury finding that the plaintiff was struck while walking clear of the cars.
    [Ed. Note. — For other cases, see Railroads, Cent Dig. §§ 1356, 1363; Dec. Dig. <§=>398(1).]
    3. Railroads <§=>400(10) — Injuries Near Track — Question eor Jury.
    In an action for personal injuries received while walking along a street beside a railroad track, the plaintiff being safe, except for a projecting object on one of the cars, whether he was guilty of negligence held for the jury under the evidence.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 1377; Dec. Dig. <§=>400(10).]
    4. Railroads <§=>396(1) — Injuries Near . Track — Contributory Negligence — Presumption.
    In an action for personal injuries received while walking along a street beside a railroad track, there being no contention that the plaintiff was on the track, or in any sense a trespasser, but was traveling along a well-traveled trail, there could be no presumption of negligence on his part because he did not walk elsewhere.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1341-1343; Dec. Dig. <§=>396(1).]
    5. Railroads <§=>398(1) — Injuries Near Track — Sufficiency oe Evidence.
    In an action for personal injuries received while walking along a street beside a railroad track, evidence held sufficient to support a jury finding that the defendant railroad was guilty of negligence in propelling its car along the street, so loaded that an object projected therefrom in such manner as to strike a person passing along where the company and its servants were charged with knowledge that persons were likely to be.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1356, 1363; Dec. Dig. <§=>398(1).]
    Appeal from District Court, El Paso County; P. R. Price, Judge.
    Action by Corbett S. Shadden against the Atchison, Topeka & Santa Fé Railway Company and another. Judgment for plaintiff, and defendant Rio Grande, El Paso & Santa Fg Railway Company appeals.
    Affirmed.
    Turney & Burges, of El Paso, and Terry, Cavin & Mills, A. H. Culwell, and Jno. G. Gregg, all of Galveston, for appellant. Moore & Harris and T. A. Falvey, all of El Paso, for appellee.

       Application for -writ of error pending in Supreme Court.

   HARPER, C. J.

This was an action for personal injuries, wherein the plaintiff alleges that on or about May 17, 1914, he was walking along Third street, between Chihuahua and Santa Fé streets; that appellants had had a flat car standing on its tracks at said point for several days; that there was au object projecting far out beyond the edge of said car into said street on the southerly side, which object the defendant had negligently placed and allowed to remain on said car at said time, the nature of said object being unknown to plaintiff, but it was believed to be an instrument used for unloading cinders; that while in the exercise of due and ordinary care and while walking on said street an engine and train operated by defendants was attached to said standing car, and same without notice or warning was moved, and plaintiff was struck by said object projecting into the street beyond • the side of said car, knocked down, and his right arm so mangled as to require amputation.

It was charged that the defendants were negligent in moving said car with such object projecting into the street and thereby striking and injuring the plaintiff, and in moving such car without giving notice or warning that it was going to move. Defendants answered by denying the material allegations of plaintiff’s petition, and by pleading contributory negligence of plaintiff in walking where he was at the time, and charging that he was a trespasser. There was an instructed verdict in favor of the defendant the Atchison, Topeka & Santa Fé Railway Company, and, in accordance with the jury, verdict and judgment were rendered against the defendant Rio Grande, El Paso & Santa Eé Railway Company in the sum of $9,000, from which judgment this appeal is prosecuted.

The first three assignments urge that the verdict and judgment are contrary to the evidence, contrary to law, and that a peremptory charge should have been given, as requested, for defendant:

(a) Because the evidence does not show that any object projected out into the street beyond the side of said car that could have caused the injury to plaintiff, (b) Because the evidence does not show that defendant was negligent in moving its said cars, (c) Because the evidence does not show any negligence on the part of the defendant that caused the injury, (d) Because the evidence conclusively shows that no one of defendant’s crew operating its said train were guilty of any negligence that caused the injury to plaintiff, (e) Because the evidence conclusively shows that where plaintiff claims to have received his injury was on the south of the center of Third street, and all of which was open and unoccupied, and that plaintiff went so near the track that he was struck by a moving car; and that, if plaintiff had not gone so near said moving car so that he could be struck by same, he would not have been injured, because plaintiff could have passed on the other side of the street with safety to himself; and that if plaintiff had gone on any other part of the said street other than the part that he was on, he could not have received his injury, (f) Because the evidence conclusively shows that on the north side of said Third street the sidewalk was paved, and that if plaintiff had used said sidewalk, or any part of said street 40 feet south and parallel with said sidewalk, he could not have received his injury.

Annie Christopher testified for plaintiff:

“My name is Annie Christopher. I live in El Paso. On the 17th of May, 1914, I was stopping on the corner of Third and Santa F6 streets. There is a railway track running along the side of the house and fence next to the window of the house I lived in there. It stopped there on the corner of Third and Santa Fé. I remember the occasion of a soldier boy getting his arm cut off there on the 17th of May, 1914. I was sitting in my window at the time of the accident. I saw the soldier boy before he got to the place where he was injured. He had crossed Santa Fé and started on down Third street. There was a lot of flat cars standing there on that track, and the hind end had a scraper setting on it of some kind; I don’t know what it was for. It was not attached to the car; it looked like it was standing or setting there on the flat and the rest of the flats run up further, six or seven of them. When the car left my window I was sitting right in the window. I had just been there three days, and the car was there when I went there. There was an elbow stuck out over the side of the car. That soldier boy came along and crossed over Santa Fé street and started down the side of the cars, • the opposite side from where I was. I was sitting in the window on this side, and that tin-owed him on the outside of me. I was sitting there, looking under the car; it was high off the ground, and I could see clear up here (indicating just below the hips). He was walking beside the car. Nothing happened to the cars more than they put the engine to them and pulled them out. Yes; there-was a noise; you could have heard it for a block or two. The man had come about mid-dleways down the side of the car that had the scraper on it. That was the car next to my window. He was just walking along and it looked like the car might have struck him. The car had elbows on it, and one of them elbows struck the man; it just jerked out all at once and it must have struck him right along here (indicating side) because he seemed to fall on-his back, and Ms arm was on the track under the wheel. I seen that. Where he was walking along there was where people usually walked. He walked on a path. I have seen plenty of men and women go there. It was a place used by the public in going from Chihuahua street to Santa Fé street along there and from Santa Fé street to Chihuahua street. That place where he was going along there was the place the people usually went, in going from Santa Fé street to Chihuahua street, and from Chihuahua street to Santa Fé street on Third street. Plenty of people went along there. I could see them all the time, going along there, women, men, and children, on account of the side of the car being high up. I was sitting in the window; I was setting this way in the window and turned this way and saw the man. I saw him under the car, and I saw the car jerk and heard a noise. ⅜ ⅞ ⅜ Nobody came down there and gave a signal that the train was going to move out. There was no notice given of any kind except the noise and the jerking of the car. I did not see any employe come back to the back of the train. There were no children playing around the car. I have one girl, a grandchild. I did not see any children there. I am positive that no notice was given. Nobody came around the car to see whether everything was clear or not.”
Cross-examination: “The track was about two feet from the side of my house and fence. I first saw the soldier right there where he got hurt. That is the first place I saw him; I never paid no attention; I didn’t know anything about him until he got hurt. The first place I saw the soldier was coming across that vacant lot right in front of my house, oh that side of Santa Fé street, on the east side. He was going kinder south, coming right across Santa Fé and coming down Third street. The vacant lot is right in front of my house, and tlat made him come right to the corner of Santa Fé and Third, and down the side of the track. My face faced east and he had been coming northwest toward my house. The first time I saw him he was crossing that vacant lot to the east of Santa Fé street. I did not watch him. I next saw Mm at Santa P6 and Third street, from my window, and noticed him again, when he went down Third street, and I guess he turned back out again and it knocked Mm back like it did, is wliat I allowed; but I don’t know any more about him than I do about you. I don’t know what no distance is, but I know he was about middleway of that flat car when he was hit. I had been there only three days. I do not know when this flat car was put on the track there because it .was there when I went there. When I saw this man on Santa Fé street out there I did not know whether the switching crew was out there or not; it wasn’t my business to watch after them. I don’t know anything at all about that When I heard that noise X was sitting outside the door with my feet in the house; the ground is level with the window there, and when I heard the noise it caused me to get further in the house. I was sitting sideways. The sill of the window is several feet above the floor. When I saw the man about middle-way of the flat car I do not know where the switching crew was; I don’t know a thing about them. I did not go outside until the man was hurt I could see about up to there on th,e man’s body (indicating just below hips) as he passed my window. It did not come up as high as his hips. I could not see his hands, his arms, his shoulders, or his neck when he passed me going that direction; he was not going facing me. When he got to the middle of the flat he is bound to have turned around, or it would not have knocked him down. I did not see him when he turned. I know he turned because I could tell the way he fell. I told you he turned around to come back this way and the car struck him about here (indicating on the arm); I seen him when lie fell. He fell back this way. I seen him; looked like after the lick hit him he turned, but turned this way, and he done turned around when he got mid-dleway that flat car, the car struck him and turned him' right down to one side, down the side track. I done told you I seen him when he turned. When he got about middleway of the car I noticed his toes were this way, to me, and his heels were — I don’t know whether he turned or not. but that is the way. I said he turned and started back. When he turned I could only see the front part of his legs; I could not see the back of them1 when they was from me. I could not see his hips, chest, his stomach, or his face. I don’t know how many elbows were on that car; I’m no railroad man. I don’t know how many there were. There was more than one; any flat car has more than one shoulder on it that way. The scraper reached to the middle of the car or further; it was about that distance from the end of it, and it come out this way, in a ‘V’ shape, and spread. The scraper was right on the edge of the ear like that, and the elbows was sticking out that way. The scraper was even with the car on the side, and the elbows extended out a little bit from the sides of the car. If they happened to be little elbows they would be a little ways out, and if larger they were out farther. That is what I saw. I spent most of my time in the house; I got it to stay in. It was in May, kind of warm, and I stayed in the house most of the time, I was not doing anything but camping, and I had to move as soon as I could find a house.”
Redirect examination : “The floor of my house there was below the level of the street. There is a pathway along where the soldier was walking at the time he was struck. They had a little path tramped out where the people had come down across the lot. Where he was walking along the side of the car was just a little path walked out in the sand there.”

Testimony of plaintiff, Shadden:

“My name is Corbett S. Shadden. I reside in Springtown, Atoka, Oklahoma. I am 22 years old. I am the plaintiff in this case. I was in the city of El Paso, El Paso county, in the state of Texas, on the 17th day of May, 1914. I was soldiering at that time. On that day I was not acquainted with a certain line of railroad owned and operated by the defendant, Rio Grande, El Paso & Santa Fé Railroad Company, running through said city on Third street to its intersection with Chihuahua street. T saw said railroad track on said 17th day of May, 1914. Yes; I was injured in said city of El Paso and on the 17th day of May, 1914, on Third street. My right arm was crushed, and later amputated about 5 inches from the shoulder, ou the same day. I was walking on thé north side of a flat car, and turned to go back, and an object projecting out in the street off the car struck me. I was going to camp; had come from town. The camp was located near the gas tank. The wheels of the car crushed my right arm. I did not see the object projecting out into the street from said car in time to get out of the way of it. I was walking along said street. * * * I was confined to the hospital by reason of my injuries, two months. I have suffered mental and physical pain by reason of my injuries ever since I was injured, quite a bit; the imagination of the nerve causes constant pain. I have not been able to earn a living since my injuries. I was discharged from the army by reason of my injuries. I enlisted in the army at Fort Logan, Colo., and before I enlisted I was a farmer. At the time of my enlistment I was earning about $30 per month. I am not earning anything now, and am not capable of earning anything in my crippled condition. My physical condition at and prior to my injuries was good; I weighed 137 pounds. I am five feet six inches and a quarter tall. I was not intoxicated at the time I received said injuries. I was not asleep on the track of the defendant’s railroad at said time.”
Cross-examination: “I reached El Paso with my company on the 28th day of April; I left there the 17th of July. On May 17, 1914, I was on duty, but was on legal pass. My company was encamped near the gas tank about eleven o’clock; my destination was town. I was alone at the time. I did not go anywhere except to a cigar stand, and then to the Y. M. C. A. The last place I stopped or visited before starting back to camp was at a cigar stand, which was north of my camp. I do not remember what streets I traveled in returning to camp. I have not read the original petition filed in this suit on August 26, 1914, signed ‘Moore & Harris, T. A. Falvey, Attorneys for Plaintiff, Cor-bett S. Shadden,’ but have read the copy furnished by my counsel. It states the facts as to how, when, and the point at which I received my injury. I was going in a westerly direction at the timo of the injury. I reached Third street from the northern direction; T do not know the name of the street traveled on to reach Third street. I was not acquainted with any of the people living on Third street between Santa Fé and Chihuahua streets at that time. I do not know if the place at which I received my injury is nearest to Chihuahua street or to Santa Fé street, not being familiar with the streets. * * * I was carried to a hospital for treatment after receiving my injury. I was taken to the Fort Bliss hospital and Major Graves treated me, and a lieutenant; I do not remember his name. At tho time I was injured the car was suddenly moved towards the west. I am acquainted with a negro woman by the name of Annie Christopher. I have never talked with her about my injuries. I am not acquainted with a negro man named John Booster. I never had any conversation with him. I pointed out the place where I was injured to my attorneys on the same day that I left, the 17th day of July. I had not been there previous to that time after I was injured. I was not assisted by any person or persons in locating the point where I was injured. I do not know the names of any one that assisted me from the point I received my injury at the time I was injured, as there were so many there. * * * At the time I was injured I was drawing $15 a month and expenses. I had not taken a drink of any intoxicating liquor on the morning or during Ae day of May 16, 1914. I had not acquired by purchase, gift, or otherwise any intoxicating liquor on May 17, 1914. It is not a fact that I did take a drink with some of my fellow soldiers on the morning of May 17, 1914. It is not a fact that I took a drink with some ciyilians on the morning of May 17, 1914. I did not have any intoxicating liquors in my possession at the time I left camp on May 17, 1914.”

These two are the only witnesses upon the trial who claimed to have witnessed the accident. Plaintiff testifies after he was struck he saw an object of some kind projecting from the top of the car into the street, and that this object is what struck him; and witness Christopher said there was a scraper on the edge of the car, and the elbows were sticking out a little bit from the sides of the car.

This is sufficient to support the finding of the jury in favor of the allegation in plaintiff’s petition that “some object, the nature of which was unknown to plaintiff, projected over the side of the car” and which struck him. In this connection, it is urged by appellant that the evidence showed that plaintiff unnecessarily went so near the track as to be struck by a moving car, when he could have gone on the other side of the street in safety to himself.

The record makes the witness Christopher say that plaintiff was struck by a knuckle of the car, but the circumstances detailed by the witnesses indicate that the path along which he was walking was sufficiently removed from the track as to place persons walking thereon free from the moving cars; and further the uncontradicted testimony is that there was some object projecting out into the street from the top of the car. Taken together, these circumstances are sufficient to support the finding of the jury that plaintiff was struck while walking clear of the cars- themselves; and, if the position he placed himself in was safe but for the projecting object, then it became a question for the jury as to whether he was guilty of negligence under the circumstances, and this has been resolved in favor of plaintiff by their verdict.

There is no contention in this case that plaintiff was upon the track or, in other words, was in any sense a trespasser, but, on the other hand, was in a public street where he had a right to be, passing on and along a well-traveled trail, a trail usually traveled by pedestrians; therefore, there could be no' presumption of negligence upon his part because he did not walk elsewhere.

The negligence charged to the defendant by the pleadings and submitted by the court’s charge is their act in propelling its car along a public street, so loaded as that an object projected therefrom in such manner as to strike a person passing along where the company and its servants were charged with knowledge that persons were likely to be, and, if there, likely to be injured. And we think the facts are sufficient to support the finding of the jury that the defendant company was guilty of such negligence as charged it with liability for the injuries complained of. M., K. & T. Ry. Co. v. Scarborough, 29 Tex. Civ. App. 194, 68 S. W. 196, G., C. & S. F. Ry. Co. v. Matthews, 100 Tex. 67, 93 S. W. 1068.

By its fourth assignment, it is charged that the court erred in refusing to give the following special charge, as requested:

“Now, if you believe from the evidence that the plaintiff went on, or so near, the track as to suffer injury by reason of being struck by a moving car, and in so doing was guilty of negligence, or that the plaintiff could have passed on the other side of the street with safety to-himself, and that in being on that portion of said street where he was at the time he was injured, if he was injured on said street, under all the surrounding facts and circumstances appearing in evidence, was guilty of negligence, and either or both of such negligent acts or omissions combined, if plaintiff was guilty of negligence in either or both such particulars, proximately contributed to cause plaintiff’s injury, then your verdict must be for the defendant.”

The following is incorporated in the main charge:

“Now, if you believe from the evidence that the plaintiff went on or too near the track of the defendant, and in so doing was guilty of negligence, or that the plaintiff could have passed on the other side of the street with safety to himself, and that in being on that portion of said street where he was at the time he was injured, if he was injured on said street, under all the surrounding facts and circumstances appearing in evidence, was guilty of negligence, and either or both of such negligent acts or omissions combined, if plaintiff was guilty of negligence in either or both such particulars, proximately contributed to cause plaintiff’s injury, then your verdict must be for the defendant”

—which sufficiently covers the points at issue. It was therefore not error to refuse the special charge.

By its fifth assignment, it is urged that the verdict is excessive. We do not so conclude. The evidence shows that, at the time of the accident, plaintiff was 22 years old, capable of earning.$30 per month as a farm hand; that as a result of the accident he lost his right arm, it having been amputated about five inches from the shoulder; that he was confined to the hospital for two months; that he had suffered mental and physical pain ever since the accident; that prior to the accident his physical condition was good, etc. See evidence quoted at length above. Ry. Co. v. Scarborough, 29 Tex. Civ. App. 194, 68 S. W. 196.

Finding no error in the record, the cause is affirmed.
      <§=>Kor other cases see same topic and KEY-NIJMBER in all Key-Numbered Digests and Indexes


author: JENKINS, J.

text:
    HOUSTON & T. C. R. CO. v. MONTGOMERY.
    (No. 5580.)
    (Court of Civil Appeals of Texas. Austin.
    Feb. 9, 1916.
    Rehearing Denied April 19, 1916.)
    1. Trial ⅞=>25(7) — Right to Open and Close — Statute.
    Under Rev. St. 1911, art. 1953, giving the party having the burden of proof on the whole case the right to open and close, and district court rule No. 31 (142 S. W. xx), giving the plaintiff the right to open and close, unless the burden of proof of the whole case rests on the defendant, and providing that, if defendant admits that plaintiff has a good cause of action except as it may be defeated by the facts set up by the answer, the defendant shall have the right to open and close, plaintiff, in a suit upon an itemized account wherein defendant before trial filed a written acknowledgment of the correctness of the cause of action, except as to three items, had the right to open and close.
    [Ed. Note. — For other eases, see Trial, Cent. Dig. §§ 50, 60-75; Dec. Dig. <@=*25(7).]
    2. Appeal and Error <@=*1046(3) — Harmless Error — Right to Open and Close.
    Any error in allowing a defendant to open and close was ground for reversal; as the right to open and close is a valuable right.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4130; Dec: Dig. <⅜=> 1046(3).]
    Appeal from District Court, Robertson County; J. C. Scott, Judge.
    Action by the Houston & Texas Central Railroad Company against W. T. Montgomery, with plea in reconvention. Judgment for defendant, and plaintiff appeals.
    Reversed and remanded.
    Baker, Botts, Parker & Garwood, of Houston, Perry & Woods, of Franklin, and Strib-ling & Stribling, of Waco, for appellant. Dane, Johnson & Killough, of Hearne, and S. S. Searcy, of San Antonio, for appellee.
   JENKINS, J.

Appellant brought suit against appellee upon an itemized account, amounting in the aggregate to $1,163.75. The appellee in his answer admitted the correctness of said account, except as to the following items: Two guard rails, $18; eight kegs of track spikes, $32; 15 per cent, on freight and handling of above (including the entire account), $152.10. As to these items appellee alleged that the charge of $18 for two guard rails is incorrect, the actual value thereof being $3.29; that the charge of $32 for eight kegs of track spikes is incorrect, the amount due thereon being' for only one keg, in the sum of $4; that the amount of 15 per cent, on freight should be correspondingly reduced; and that the amount that he actually owed on said account was $1,125.14, instead of $1,163.75, as alleged by appellant. Appellee also pleaded in reconvention for both actual and exemplary damages for the* wrongful suing out and levying of an attachment on 1,600 feet of track material, and on a steam shovel. The amount of actual damages claimed for the alleged wrongful suing out and levying of the attachment was $2,900, and the exemplary damages claimed was $10,000. The jury found no exemplary damages, but found as actual damages the sum of $1,420. The case was submitted upon special issues, among which were the following:

“No. 1. Is the defendant, W. T. Montgomery, indebted to the plaintiff, Bfouston & Texas Central Railroad Company, in the sum of $18 for two guard rails, as specified in the account sued on? If not, what amount is the defendant indebted to plaintiff on account of guard rails? Answer: $3.29.
“No. 2. Is defendant, W. T. Montgomery, indebted to plaintiff Houston & Texas Central Railroad Company for the sum of $32 for eight kegs of track spikes, as specified in plaintiff’s petition sued on? If not, in what amount is defendant indebted to plaintiff for said track spikes? Answer: $11.15.
“No. 3. Is the defendant, W. T. Montgomery, indebted to plaintiff, Houston & Texas Central Railroad Company, for 15 per cent, on the sum of $1,162.75, or for 15 per cent, on the sum of $1,125.14? 'Answer: $1,125.14.”

Appellee before the beginning of the trial filed a written statement, wherein he acknowledged the correctness of appellant’s cause of action, except as to the three items above referred to, and moved the court that he be allowed to open and conclude in the introduction of testimony and in the argument of the case, which motion was granted by the court; the appellant duly excepting thereto. After the introduction of the testimony, before the argument began, appellant filed the following motion:

“Now comes the plaintiff, and before the argument of the case begins, and requests the court to allow plaintiff the right to the opening and concluding argument in this case, and says that it is entitled to the same under the pleading and evidence in this cause, and it has not in any way waived the same, and the defendant is not, under his admission, entitled to make the opening and concluding argument.”

This motion was overruled, to which the appellant excepted, and the appellee was' permitted to open and conclude the argument.

We sustain the appellant’s assignments in reference to the foregoing action of the court. Rev. St. 1911, art. 1953; District Court Rule No. 31 (142 S. W. xx); Meade v. Logan, 110 S. W. 189; Harris v. Pinckney, 55 S. W. 39; Smith v. Bank, 74 Tex. 545, 12 S. W. 221; Luckenbach v. Thomas, 166 S. W. 105; Berry Bros. v. Fairbanks, 51 Tex. Civ. App. 558/112 S. W. 429; Cockrell v. Ellison, 137 S. W. 150; Sanders v. Bridges, 67 Tex. 93, 2 S. W. 663. In Luckenbach v. Thomas, supra, the court said:

“If there be one affirmative fact important to a recovery by plaintiffs not admitted by defendant, plaintiff has the right to open and conclude.”

In Harris v. Pinckney, supra, the court said:

“The defendant admitted one item of charge in the suit, of $32.20, but not the other item, of $165.20. Clearly the court erred. It was plaintiffs right to open and close the trial; defendant not admitting the entire -demand of plaintiff.”

These excerpts apply in the instant case to the items with reference to guard rails, track spikes, and freight, which were not admitted, but denied.

“The right to open and close in the trial of a cause is a valuable right, and it is reversible error to wrongfully deprive one of its exercise.” Meade v. Logan, supra. We think this observation applies with full force in the instant ease.

For the error committed by the court in refusing to allow appellant to open and conclude the argument, this case is reversed and remanded.

Reversed and remanded.
      other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PLEASANTS, C. J. McMEANS, J.

text:
    AMERICAN NAT. INS. CO. v. VAN DUSEN.

    (No. 6487.)
    (Court of Civil Appeals of Texas. Galveston.
    Dec. 17, 1913.
    Certified Questions Withdrawn and Rehearing Denied April 27, 1916.)
    1. Contracts <§=>163 — Insurance <§>=74 — Construction — Printed and Written Provisions.
    Where a contract employing a superintendent of agents for an insurance company contained a printed provision recognizing the right of the company to discharge‘the superintendent at its pleasure, and also contained a typewritten provision that it should remain in force for five yelars, provided the superintendent made a stipulated increase in - insurance, etc., the latter written provision controlled, since when some of the provisions of a contract are printed and some written, and there is a conflict between the printed and written provisions, the printed must yield.
    [Ed. Note. — Eor other cases, see Contracts, Cent. Dig. § 745; Dec. Dig. <§=>163; Insurance, Cent. Dig. §§ 99, 100; Dee. Dig. <§=374.]
    2. Evidence <§=>450(6) — Parol Evidence — Ambiguity oe Contract — Intention oe Parties.
    Where a contract of employment between its superintendent of agents and an insurance company provided in a typewritten clause that it should remain in force for five years, and in a printed clause that the company could discharge the superintendent at pleasure, such contract was ambiguous, and parol evidence admissible to show the intention of the parties.
    [Ed. Note. — Eor other cases, see Evidence, Cent. Dig. § 2079; Dec. Dig. <§=>450(6).]
    3. Insurance <§=>76 — Agents—Contract oe Employment — Intention oe Parties — Sue-eiciency oe Evidence.
    In suit by its superintendent of agents against an insurance company for breach of his contract of employment, evidence held to show that the parties intended and understood that the superintendent’s employment was for five years, subject to a stipulation as to increase in revenues, and that the company was not to have the right to discharge him at pleasure.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 101; Dec. Dig. <§=>76.3
    4. Insurance <§=>79 — Agents—Contract oe Employment — Right oe Discharge.
    Where the superintendent of agents of an insurance company violated his contract of employment in any particular, or was unfaithful in the discharge of Ms duties, the company could treat the contract as no longer binding, and dismiss the superintendent, though the contract provided that it should run for five years, provided the superintendent made a stipulated increase in business and collections.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 104; Dec. Dig. <§=>79.]
    5. Insurance <§=>79 — Agents—Contract of Employment — Construction.
    The contract of employment of a superintendent of agents for an insurance company, which, after providing that the contract should run for five years, if the superintendent make a stipulated increase in business and collections, provided the compensation to which he would be entitled if the contract were terminated by “dismissal,” referred, by the use of the word, to dismissal for causes besides a breach of the stipulation as to increase in business.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 104; Dec. Dig. <§=>79.]
    6. Insurance <§=>85 — Contract oe Employment — Ambiguity—Question eor Court.
    In suit by its superintendent of agents against an insurance company for breach of Ms contract of employment, it -was the province of the court to determine whether the contract was ambiguous in relation to the right to discharge.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 115; Dec. Dig. <§=>85.]
    7. Master and Servant <§=>42(1) — 'Wrongful Discharge — Damages.
    The Measure of damages for breach of a contract for personal services is the difference between what the employs would have earned under the contract and what he earned or might have earned by reasonable diligence in other employment.
    [Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. § 54; Dec. Dig'. <§=>42(l).l
    8. Insurance <§=>85 — Agents — Action eor Wrongful Discharge — Pleading.
    In an action by its superintendent of agents against an insurance company for breach of his contract of employment, it was not necessary that plaintiff’s petition should allege what effort he made to reduce the damages caused Mm by Ms discharge by obtaining other employment, and what amount he earned or might have earned by reasonable diligence in such other employment.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 115; Dec. Dig. <§=>85.]
    9. Insurance <§=>S5 — Agents — Action for Wrongful Discharge — Evidence—'Earnings.
    In suit by its superintendent of agents, against an insurance company for wrongful discharge, testimony of plaintiff as to the amount he would have made under the contract of employment, based on his statements as to what his earnings were before discharge, and. the conditions existing in reference to the business after discharge, was admissible.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 115; Dec. Dig. <§=>S5.]
    10. Appeal and Error <§=3742(4) — Assignment oe Error — Sufficiency.
    Where the statement under an assignment of error does not state what the testimony was to which the objection stated in the assignment was made, the assignment must be overruled.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. <§=>742(4).]
    11. Appeal and Error <§=>1062(1) — Harmless Error — Submission oe Issue.
    In suit by the superintendent of agents of an insurance company for wrongful discharge, the submission to the jury of a special issue as to defendant’s good faith in making the charges against plaintiff, on which it based its right to discharge him, was harmless to defendant.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4212; Dec. Dig. <§=>1062(1).]
    McMeans, J., dissenting.
    Appeal from District Court, Harris County ; Norman 6. Kittrell, Judge.
    Suit by J. P. Van Dusen against the American National Insurance Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Dane, Wolters & Storey, of Houston, and Williams & Neethe, of Galveston, for appellant. Clark & Kapner and Bryan & Bryan, all of Houston, for appellee.

      Applieation for -writ of error pending in Supreme Court,

   PLEASANTS, C. J.

This suit was brought by appellee against appellant to recover the sum of $12,000 damages for the alleged breach by appellant of a contract by which it had employed appellee to render personal services as superintendent of agents in the industrial branch of appellant’s insurance business in the Houston district. The breach alleged was the wrongful discharge of appel-lee by appellant before the expiration of the term of employment, which it is alleged was for five years from April 20, 1908.

The defendant answered by general denial and specially denied some of the allegations of the petition. It further averred that by the terms of its contract with plaintiff it had the right to discharge him at any time and without cause. It also made charges against plaintiff, which if found to be true were sufficient cause for his discharge.

The cause was submitted to a jury in the ■court below upon special issues, upon all of which the jury found in favor of plaintiff. Upon this verdict judgment was rendered in favor of plaintiff for the sum of $10,031.75.

The contract for breach of which the suit is brought is lengthy and need not be set out in full. The following summary of its provisions, which quotes the provisions the construction of which is material to a proper disposition of this appeal, is copied from appellant’s brief:

“It recites that it is made April 20, 1908, and that Van Dusen, in consideration of being appointed as superintendent of agent s in the Houston, Texas, district, at the salary and witli the emoluments specified, agrees as follows: There follow stipulations on his part numbered consecutively from ‘First’ to ‘Seventeenth,’ of which IS are printed and the other typewritten. Following these are 9 typewritten stipulations on the part of the company. The ‘Eleventh’ of his is as follows:
“ ‘Eleventh — He acknowledges the right of the general manager or any other executive officer of the company to revoke this appointment at pleasure, and that he holds the superintendency (subject, however, to said right of revocation) only upon condition that he conforms in all respects to the rules, instructions and regulations of the company; and that any violation of this agreement, or of the rules, instructions and regulations of the company shall subject him to immediate and unconditional dismissal; it being understood that for the purpose of this agreement the rules, instructions and regulations above mentioned include such as may bo prescribed and communicated by the general manager or any other executive officer to him from time to time.’
“In the ftwelfth’ he agrees not to resign without having given seven days’ notice.
“The ‘thirteenth’ provides that, in case of his resigning or being dismissed, he agrees, upon request, to introduce to his successor the agents in his district.
“The ‘fourteenth’ stipulation (typewritten) is as follows:
“ ‘Fourteenth — To make the following average increase on the company debit in Beaumont and Houston during each six months of the first four years from the date of this contract, first six months $100.00, second $200.00, and $75.00 during each of the remaining six month periods of the four years above mentioned, with an average of 92 per cent, collections, beginning with the twenty-first week from the date of first issue.’
■ “By ‘company debit’ is meant weekly premiums charged for industrial insurance.
“Following his stipulations are those of the company numbered from first to ninth, inclusive, none of which affect the question now being presented. Then comes this concluding clause:
“ ‘This contract to remain in full force and effect for five years from date hereof, provided superintendent makes the stipulated increase and per cent, of collections, and it is mutually-agreed that if this contract and the employment thereunder shall terminate for any cause, by resignation, dismissal, death or otherwise, during any year, said contingent salary which said superintendent shall have then received from the company shall be in full settlement of all claims and demands upon the company in favor of said superintendent under this agreement and for his services up to that time in any capacity, and all further salary which a successful continuance of the superintendency might have secured to him shall be waived and forfeited.’ ”

Henry Sheffield, .who was manager of appellant company, and in such capacity made the contract for the company with the plaintiff, but who was subsequently discharged by the company and was not in its service at the time he testified in the trial of this case, testified, in substance, that in April, 1908, the company’s industrial insurance business at Houston was very unsatisfactory, and knowing that plaintiff was an experienced superintendent of such business, that he had represented other companies at Houston who were engaged in that line of insurance but had prior to the time above mentioned withdrawn from the state, and was acquainted with the conditions at Houston and knew best who to employ as agents there, he decided to secure plaintiff’s services for appellant. With this end in view he went to Dallas, and through a mutual friend arranged for a meeting with plaintiff, who then lived at Sherman, Tex. The first meeting was at Dallas, and shortly thereafter witness went to Sherman and made a contract with plaintiff. This contract was in substance the same as the typewritten portions of the contract before mentioned. This typewritten portion of the contract was prepared by the witness and was afterwards attached to the printed form, which was the usual form of contracts made by the company with its superintendents. In regard to the intention!- of the parties in the execution of the contract in respect to its duration, he says:

“The printed part, being the form of superintendent’s agreement used by the company at that time, was used to give the contract the usual form, but I considered, and it was so understood, that the contract that we entered into is that reflected by the typewritten portion of the document which has been exhibited to me. The contract was to be for five years, subject to conditional clause fourteenth of the typewritten part of the contract. Van Dusen did insist upon having a definite time for him to represent the company under the contract, and I demur-red, and would not give him the five-year term until I had referred the matter to the company. * ⅜ ⅜ Mr, Van Dusen and I did not intend making a contract whereby the American National Insurance Company could terminate the contract at its own pleasure or will, as is provided in the eleventh paragraph (printed), reading: ‘He acknowledges the right of the general manager or any other executive officer of the company to revoke this appointment at pleasure,’ but we did understand and intend that the contract should be determined under clause fourteenth of the typewritten form of the contract. It was my understanding that this contract should be in full force and effect for five years from date, provided superintendent made the stipulated increase and per cent, of collections, except in case of death, or that he failed to carry out the stipulations in clause fourteenth of the typewritten portion of the contract, as regards the making of the stipulated increase and per cent, of collections.”

The plaintiff testified that he made a five years’ contract, and the fact that it was a five years’ contract was the inducement to him to enter into it and move from Sherman to Houston, and that he would not have made the contract if he had not understood that it was for five years. He was discharged by the defendant on April 3, 1912, a year and seventeen days before the expiration of the five-year term stipulated in the contract.

The evidence sustains the finding of the jury that plaintiff, during the time he was serving the company in the capacity in which he was employed, made the increase in the company’s business stipulated in the fourteenth provision of the contract before set out; that none of the charges against plaintiff, averred by the defendant to be cause for his discharge, were true; that plaintiff would have made under his contract between the date of his discharge on April 3, 1912, and the expiration of the contract oil April 20, 1913, the sum of $10,681.75; that the sum which he had made and would probably make between said dates was $650, and that by reason of his discharge plaintiff had sustained damages in the sum-of $10,031.75.

Under the first assignment of error the appellant contends that because the contract sued on contains a clause giving the appellant the absolute right to discharge plaintiff at its pleasure, the trial court should have instructed the jury to return a verdict in favor of defendant.

■Under the second assignment it is contended that the trial court erred in instructing the jury that said contract was a five-year contract, subject to termination only for failure of the plaintiff to increase the revenues of appellant as stipulated in the fourteenth provision of the contract, because the last provision of the contract, which declares that the contract shall “remain in full force and effect for five years from date hereof, provided the superintendent makes the stipulated increase and per cent, of collections,” also-recognizes the right of defendant to dismiss the plaintiff, “and the word dismissal therein used cannot be limited by saying that such dismissal could be only for breach of the stipulation in said contract to make said increase.”

These assignments raise the question of the proper construction of the contract, which is the material question presented by the appeal.

It seems to be well settled that when some of the provisions of a contract are printed and some written and there is a conflict between the printed and the written provisions, the printed must yield. 9 Oyc. 584, and cases there cited; Georgia Home Ins. Co. v. Jacobs, 56 Tex. 369; Armstrong v. Insurance Co., 112 S. W. 327; Michaelis v. Wolf, 136 Ill. 68, 26 N. E. 384.

It is admitted that the last paragraph of the contract above set out, which provides that it is to remain in force for five years, provided plaintiff makes the stipulated increase and per cent, of collections, was written, and that the eleventh provision above set out, in which the plaintiff acknowledges the right of the defendant to revoke his appointment at pleasure, is printed.

The majority of the court are of opinion that these provisions of the contract are in direct conflict, and under the rule above stated, as to conflicts between written and printed portions of a contract, the printed provision which recognizes the right of defendant to discharge the plaintiff at its pleasure should be disregarded.

But independent of this rule, the conflict between these provisions makes the contract ambiguous and parol evidence was admissible to show the intention of the parties, and the undisputed evidence which we have before set out shows that the parties intended and understood that the employment was for a term of five years, subject to the stipulation as to increase in revenues and collections, and that defendant was not to have the right to discharge plaintiff at its pleasure.

We do not understand that counsel for appellant, or our dissenting associate, contend that there is not a direct conflict between the provision in which the plaintiff acknowledges the right of the defendant to discharge him at its pleasure, and the clause in the last paragraph of the contract, which declares that the contract shall remain in full force and effect for five years, provided the plaintiff makes the stipulated increase and per cent, of collections, but their contention is, that when the last paragraph is considered as a whole there is no such conflict because said paragraph recognizes the right of “dismissal,” and, as stated in the second assignment of error above quoted, “the word dismissal therein used cannot be limited by-saying that such dismissal could be only for the breach of the stipulation in said contract to make said increase.”

We agree with counsel that the word “dismissal,” as used in said paragraph, should not be so limited. We think it clear that it refers to dismissal for cause, and when given this meaning there is no ambiguity or uncertainty in the meaning of the last paragraph of the contract. The stipulation that the contract should remain in full force and effect for five years, provided plaintiff makes the stipulated increase and per cent, of collections, could in no way affect the right of defendant to discharge the plaintiff for cause. If plaintiff violated his contract in any particular, or was unfaithful in the discharge of his duty to his employer, the defendant, for its protection, could treat the contract as no longer binding and dismiss plaintiff from its service, notwithstanding the contract was to run five years, provided plaintiff made the stipulated increase in business and collections, and a dismissal of this kind is what is recognized in the last paragraph of the contract, which fixes the amount of compensation to which plaintiff would he entitled in the event the contract terminated by “dismissal.”

It would be unreasonable to hold that because the defendant agreed that plaintiff’s employment should be for five years on condition that he make certain stipulated increases in the defendant’s business, that defendant was not authorized to discharge plaintiff for any breach of duty or violation of his obligations to his employer, however flagrant, and the right to discharge for violation of the orders of his superiors and the rules of the defendant company expressly reserved in the contract does not conflict with the provision that the contract is to continue for five years, provided plaintiff makes the stipulated increase in the business.

When the word “dismissal,” as here used, is construed to refer to dismissal for cause, all of the provisions in the last paragraph of the contract harmonize. If we construe it as referring to dismissal at the pleasure of defendant, it conflicts with the first clause of the paragraph and adds to the ambiguity of the contract.

If every portion of this contract is to be given effect, the printed as well as the written, the agreement of the parties was that the plaintiff’s employment should last for five years, provided he made the stipulated increase in the business and collections, that plaintiff could resign at any time by .giving defendant seven days’ notice, and that defendant could discharge plaintiff at any time without cause. There is no conflict between the five years’ provision and the provision as to plaintiff’s resignation. Both these provisions are clearly made for plaintiff’s benefit. He could remain in the employment if he so desired for five years if he made the required increase in the business and did not commit such breach of duty to his employer as would authorize his discharge for cause, hut he was not bound to continue in such employment for more than' seven days after notice to defendant of his intention to resign. We see nothing unreasonable in an agreement of this kind and no legal objection to its enforcement But the clause giving defendant the right to discharge plaintiff at its pleasure without cause entirely destroys all of the benefits which inured to plaintiff under the five years’ provision. If plaintiff accepted employment terminable at the will of the employer, why insert a clause giving him the right to remain .in the employment on certain named conditions? Such clause would give him no protection and would be entirely useless. We think the inconsistency and ambiguity in this contract is apparent.

We think the court properly instructed the jury that the contract was for five years if the stipulated increase in the business was made by the plaintiff, and he was not guilty of the charges made against him' by defendant as grounds for his discharge, and this was the effect of the charge given the jury.

There was no conflict in the evidence as to what portion of the contract was written and what portion printed, nor as to the intention and understanding of the parties executing the contract, and therefore there was no issue of fact to submit to the jury on the question of whether the contract was for five years or one terminable at the will of defendant, and the trial court did not err, as contended by the third assignment, in failing to submit that question to the jury. It was the province of the court to determine whether the contract was ambiguous, and that issue could not properly have been submitted to the jury.

Our conclusion that the contract is ambiguous disposes of the several assignments presented in appellant’s brief complaining of the admission of parol evidence showing the intention of the parties in the execution of the contract. None of the testimony complained of was irrelevant or immaterial upon this issue. The rule that the written portion of the contract must control the printed, and our conclusion that the five-year clause is in conflict with the clause acknowledging defendant’s right to discharge at pleasure, would render proof of the intention of the parties unnecessary; but the introduction of evidence showing such intention could not possibly have injured the defendant, and if the rule as to written and printed portions of the contract should not he applicable the evidence was necessary to explain the ambiguity in the contract. Each of these assignments is overruled.

Under the ninth assignment it is contended that the court should have instructed the jury to return a verdict for the defendant because the petition fails to show what efforts, if any, plaintiff had made to secure other employment after his discharge by the defendant, or what amount, if any, plaintiff had earned or would probably earn between the date of his discharge and the termination of the five-year term, and therefore the petition fails to show that plaintiff had suffered any damage.

The contention that a petition in a case of this kind should allege what effort plaintiff had made to reduce the damage by obtaining other employment, and what amount, if any, he had earned or might earn by such other employment, is not without force. The measure of damages for breach of a contract for personal services being the difference between what plaintiff would have earned under the contract and what he earned or might have earned by reasonable diligence in other employment, it would seem to logically follow that plaintiff, in order to show what, if any, damage he has sustained by the breach, should allege the facts from which such damage could be ascertained. The point, however, has been ruled contrary to appellant’s contention. In the case of Porter v. Burkett, 65 Tex. 387, our Supreme Court, in passing upon a special exception to a petition, say:

“As to the special exceptions, it was not necessary to allege that the plaintiffs could not have saved themselves from the consequences of the default of defendants by obtaining work elsewhere. If it were shown on the trial that they could, by this means, have reduced their losses or saved themselves harmless, it would have been a good defense, in whole or in part, to the cause of action. A plaintiff is not bound to negative everything that might defeat his action. If the damages he shows he has incurred are to be reduced from any cause not necessarily accruing, in aE such cases this must be shown by the opposite party in defense.”

We think this decision is conclusive against appellant’s contention.

This holding also disposes of the tenth assignment, which complains of the ruling of the court in admitting the testimony as to the amount of plaintiff’s earnings after his discharge, over defendant’s objection that there was no basis for the testimony in the pleading.

The testimony of plaintiff as to the amount he would have made under the contract being based on his statements as to what his earnings were under his contract before his discharge, and the conditions existing in reference to the business after his discharge, was admissible over defendant’s objection that it was wholly speculative, vague, and uncertain. The amount of his compensation under his contract depended upon the volume of business obtained by him for the defendant, and the only way to ascertain what his earnings under the contract would have been was by comparison with the business before his discharge and the conditions affecting the business before and after his discharge. Plaintiff’s estimate of his earnings was based on these comparisons and was properly admissible as evidence of what he would have earned under the contract if he had not been discharged.

The thirteenth and fourteenth assignments of error cannot be sustained. We are not informed by the statement under the thirteenth assignment what the testimony was to which the objection stated in the assignment was made. The question of good faith on the part of defendant in making the charges against the plaintiff on which it based its right to discharge him for cause was pertinent to the issue of whether such charges were true, and while it was unnecessary to submit such question to the jury as a special issue in the case, its submission could not have injured the defendant.

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

Affirmed.

McMEANS, J.

(dissenting). It is with regret that I feel compelled to disagree with the conclusions reached by the majority in disposing of the first and second assignments of error. It is true, as stated in their opinion, it is generally recognized as the law that where a printed provision of a contract contradicts, or is in conflict with, a written provision, the former must yield; but this is only where the two provisions are irreconcilable. There is also another well-recognized principle in the construction of contracts not directly referred to in the opinion of the majority, and that is, that the entire instrument must be taken and considered together. “If the instrument, when thus considered, is susceptible of a reasonable construction, by which all its provisions are made to harmonize, and by which full effect is given to its various parts, then that will be considered the correct interpretation.” Hearne v. Gillett, 62 Tex. 26. The contract in question consisted of 26 stipulations, of which the first to the seventeenth are on the part of appellee, and the remaining 9 are on the part of appellant. The stipulations 1 to 13, inclusive, are printed, and the fourteenth to seventeenth, inclusive, are typewritten. In the eleventh, printed, appellee acknowledges the right of the general manager, or any other executive officer of appellant, to revoke the contract at pleasure, and further that he holds his position, subject to said right of revocation, only upon condition that he conform in all respects to the rules, instructions, and regulations of appellant, and that any violation thereof should subject him to immediate and unconditional dismissal. In the thirteenth, also printed, appellee agrees not to resign without having given seven days’ notice. It will be observed that the only stipulations providing for the revocation of appellee’s appointment, dismissal, with or without cause, and his resignation, are contained in the printed portions of the contract. These, standing alone, undeniably give to the appellant the right to revoke the contract at its pleasure, to dismiss appellee for cause, and permits the latter to resign at any time after having given seven days’ notice. Are these provisions in irreconcilable conflict with the stipulation which provides that the contract shall remain in full force and effect for five years from its date, provided appellee shall make the stipulated increase and per cent, of collections?

I contend that they are not, and here 1 am not in harmony with the majority. It is usual in all contracts of this kind to stipulate a period of years, months, or days in which the contractual relation between the parties shall exist; and in all these this relation ceases at the end of the named period by efflux of time, if not sooner ended by one or the other parties under some right given by the contract itself. It seems to me that the stipulation in question should be construed as merely fixing a time in which the contract should run, unless sooner terminated by one or the other parties under some other stipulation. Those stipulations were that the appellant might revoke the contract at its pleasure, or that appellee might be dismissed for any violation of the contract, or of the rules, instructions, and regulations of the appellant, or for failure to make the stipulated increase or per cent, of collections, or by his voluntary resignation after having given seven days’ notice. It is permissible to explain a written instrument by parol testimony when its different provisions are in irreconcilable conflict. If they are in such conflict then there is such an ambiguity as to let in parol evidence to explain just what the parties intended to contract for, but if this can be gathered from the instrument itself parol testimony is not admissible. It seems to me that it was not required in this case to look to any evidence to explain the contract other than the contract itself. The written portions were made a part of the printed form, and it follows that the form was made a part of the contract. All parts of the contract actually made and put in a definite form are equally binding in law, and the intentions of the parties must be derived from it. Now take the last typewritten stipulation, which the majority concludes is in hopeless conflict with the eleventh provision, and we find there a provision which recognized that the contract and the employment thereunder might terminate before the expiration of five years, by resignation or dismissal. What did the parties mean by the insertion of that provision? Certainly they did not intend to refer to any of the precedent typewritten provisions, for there is no stipulation in any of them relative to dismissal or resignation. Clearly, then, they had in mind the eleventh stipulation in which appellee acknowledges the right of appellant to revoke the contract at pleasure and to dismiss him for any violation of the rules, instructions, and regulations of the company, and the twelfth, in which appellee agrees not to resign without having given seven days’ notice, and the thirteenth, which provides that in case of his resignation or dismissal he will introduce his successor to the agents of his district.

In the majority opinion it is asked, “If plaintiff accepted employment terminable at the will of the employer, why insert a clause giving him the right to remain in the employment on certain conditions?” and adds, “Such clause would give him no protection and would be entirely uselessand upon this insists that the inconsistency and ambiguity in the contract are apparent. It may be answered that the eleventh stipulation having provided that the employer could terminate the contract at pleasure, the further provision in that stipulation that he might be dismissed for violation of the contract, or of the rules, instruction, and regulations of the employer, was unnecessary. But because of the insertion of this unnecessary provision it does not follow that an ambiguity arises between the acknowledged right of the employer to discharge the employé at pleasure, and the stipulation that he should continue his ' employment for five years. On the other hand, I think that the employment for a period of five years, subject to the precedent expressed condition of the employer’s right to revoke the contract at will, is consistent with the abrogation of the contract and the employe’s consequent dismissal at any time, with or without cause. This conclusion is in harmony with the holding of Judge San-born in Rankin v. Tygard, 198 Fed. 799, 119 C. C. A. 591, wherein he says:

“An election or appointment to an official position (as bank president) for a fixed term is, it is true, inconsistent with the removal during the term without cause in the absence of a precedent reservation of the right to make such a removal during the term. But an election or appointment to the office for a specified term subject to the precedent expressed condition that the elective or appointive power may remove at will at any time during the term is consistent with such a removal without cause and it is as much an election or appointment for a legal term as an election or appointment without such a reservation. It is an election or appointment for a fixed term subject to recall and the legal term is the time the person elected or appointed will hold his office if the power to recall is not exercised.”

Substantially to the same effect is Willcox v. Ewing, 141 U. S. 141, 12 Sup. Ct. 94, 35 L. Ed. 882. The majority in reaching the conclusion it has must not only ignore the eleventh stipulation, which expressly recognizes the right of revocation at pleasure, but other provisions of the contract as well. It must ignore language of the very clause upon which the decision is based, which expressly mentions other ways in which the employment may be terminated in addition to the lapse of time and failure to make the increase and per cent, of collections, as well as other parts of the contract to see how those causes may be made to operate. One of these is dismissal. Nowhere does the contract say dismissal must be for cause, but to the contrary it says it may be at pleasure. The right of resignation is recognized in this clause, but to see how resignation may be effected we are forced to look to other provisions. For causes for removal we are also forced to look to other provisions. Why then cannot those other provisions be looked to to see how dismissal may be effected? If we can so look, then we find that it may be at pleasure.

In my opinion there are no provisions of the contract that are so contradictory they cannot be harmonized, when the contract is construed in its entirety. If this conclusion is correct, it was the plain duty of the trial judge, and not the jury, to interpret it; and as there is no ambiguity in its provisions, as I construe the contract, the court, in my judgment, should have told the jury the appellant had the right to dismiss the appellee at pleasure, and that having exercised this right under the terms of the contract, the appellee was not entitled to recover.
      ©sskor other cases see same topic and KEY-NUM0ER in all Key-Numbered Digests and Indexes


author: HUFF, C. J.

text:
    ROUNDS v. CODEMAN.
    (No. 1024.)
    (Court of Civil Appeals of Texas. Amarillo.
    April 12, 1916.)
    1. Appeal ard Error <&wkey;387(3) — Petition and Bond — Ellin a Before Issuance of Citation — Statute.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 2089-2090, governing the.bond and citation in error, the petition for writ of error and the bond for costs must be filed before issuance of the citation.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2064, 2066, 2067; Dec. Dig. &wkey;387(3).]
    2. Appeal and Error <&wkey;396 — Issuance of Citation — Service—Necessity.
    Until citation issues for defendant in error and service thereof is had, the case is improperly filed in a Court of Civil Appeals.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2099, 2102, 2104, 2150; Dec. Dig. &wkey;>396.]
    3. Appeal and Error &wkey;>382 — Error Bond —Amount.
    A writ of error bond should be double the amount of the probable costs as fixed by the clerk.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. -Dig. §§ 2036-2041; Dec. Dig. <&wkey;> 382.]
    4. Appeal and Error <&wkey;390 — Writ of Error Bond — Amendment—Statute.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1609, providing that when there is a defect of substance or form in any writ of error bond, on motion to dismiss the same for such defect the court may allow it to be amended by filing a new bond, a writ of error bond, in the amount of probable costs, as fixed by the clerk, instead of double the amount, can be amended.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2077-2088; Dec. Dig. <&wkey;> 390.]
    5. Appeal and Error <&wkey;436 — Petition for Writ of Error and Bond — Time for Filing.
    The filing of a petition for writ of error and an error bond gave the Court of Appeals jurisdiction, where the petition and bond were filed in one year from the date of the judgment, whether together or not.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2191, 2192; Dee. Dig. &wkey; 436.]
    6. Appeal and Error <&wkey;422 — Striking Ap-peai>-Defective Citation in Error.
    Where citation in error and service thereof were defective because citation issued before filing of the error bond, the Court of Appeals is authorized to strike the appeal from its docket.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2149; Dec. Dig. <&wkey;>422.]
    Error from District Court, Collingsworth County; J. A. Nabers, Judge.
    Action between Adelia T. Rounds and S. L. Coleman. To review the judgment, Rounds brings error. On motion to dismiss.
    Case stricken from the docket that proper citation and service may be had.
    See, also, 179 S. W. 530.
    J. M. Worten, of Pawhuska, Okl., and R. H. Templeton, of Wellington, for plaintiff in error. R. II. Cocke, Jr., and J. L. Lackey, both of Wellington, for defendant in error.
   HUFF, C. J.

The defendant in error presents her motion to dismiss the writ of error because the citation was void in that it was issued when no bond had been filed or approved when issued, and is insufficient to give this court jurisdiction, and because the bond is not double the amount of probable costs fixed by the clerk.

The petition for writ of error was filed January 24, 1914 (evidently meaning 1916, and it is apparent upon the record a clerical error), which seeks to review a judgment rendered April 15, 1915. Citation was issued on this judgment January 25, 1916. The return thereon shows service on S. L. Coleman, January 31, 1916. The writ of error bond was filed and approved February 5, 1916, by the clerk of the district court, in which the case was tried below. The bond is for the sum of $100. The clerk fixed the probable costs at $100. The statutes require that the petition and bond be filed before the issuance of the citation. Articles 2089-2090, Vernon’s Sayles’ Civil Statutes. Until there is citation and service, as required, the case would be improperly filed in this court. The bond must precede the issuance of citation. Thompson v. Thompson, 41 S. W. 679. The petition and bond are required to give this court jurisdiction. There was no such bond filed as required, as it was not double tbe amount of tbe probable costs, as fixed by tbe clerk. Tbis, however, can be amended. Article 1609, Vernon’s Sayles’ Civil Statutes. Tbe clerk, it would appear, under tbe statute and under tbe authority of Thompson v. Thompson, supra, prematurely issued tbe citation. Tbe filing of tbe petition and bond gave tbis court jurisdiction if tbe petition and bond were filed in one year from the date of tbe judgment. They are not required to be filed together in order to confer jurisdiction upon tbe appellate court, provided they are both filed within one year. Thompson v. Hawkins, 38 S. W. 236. Tbis court, therefore, has jurisdiction, and should not dismiss the case. On account, however, of a defective citation, and the service thereof, we are authorized to strike this appeal from the dockets of this court. Vineyard v. McCombs, 100 Tex. 318, 99 S. W. 544. We grant the motion in so far as we may; that is, to strike the case from the docket, so that proper citation and service may be had.
      <S^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HALL, J.

text:
    CHERBONNIER v. SHIRLEY.
    (No. 960.)
    (Court of Civil Appeals of Texas. Amarillo.
    April 5, 1916.
    Rehearing Denied May 3, 1916.)
    1. Evidence <&wkey;317(l) — Hearsay — Statements oe Persons Not Parties — Prejudice.
    In an action by the assignee of a contract for the delivery of cotton seed for damages for the nondelivery of a load which he had sold to a third party, where defendant pleaded an arrangement with one K. to deliver the load to plaintiff and that K. had delivered the load, and a special agreement with plaintiff’s agent that plaintiff would furnish cars for the load, that plaintiff was. notified through his agent that K. would deliver for defendant on a certain day, that plaintiff’s agent agreed to notify plaintiff and have cars ready for loading, and that plaintiff was to notify K. when he would receive the load, the testimony of K. that he told another party that plaintiff was to call him up and state what day he would set out the cars for the seed and such party’s testimony as to the same conversation, at which it was not shown that plaintiff was present, and which was contradicted by plaintiff’s agent, was hearsay and inadmissible.
    [Ed. Note. — Eor other cases, see Evidence, Cent. Dig. § 1174; Dec. Dig. &wkey;317(l).]
    2. Appeal and Error &wkey;>1050(l) — Harmless Error — Admission of Hearsay.
    The admission of such evidence, relating to a material issue, was prejudicial error, requiring a reversal.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 106S, 1069, 4153, 4157; Dec. Dig. &wkey;1050(l)J
    3. New Trial <&wkey;150(3) — Motion — Sufficiency.
    A motion for a new trial on the ground of newly discovered evidence, not accompanied by the affidavit of the witness stating what his testimony would be, was insufficient.
    [Ed. Note. — Eor other cases, see New Trial, Cent. Dig. § 309; Dec. Dig. &wkey;150(3).]
    Appeal from Crosby County Court; Pink L. Parrish, Judge.
    Action by C. C. Cherbonnier against C. C. Shirley. Judgment for defendant, and plaintiff appeals.
    Reversed, and cause remanded.
    J. W. Burton, of Crosbyton, for appellant. A. P. McKinnon, of Floydada, and Lloyd A. Wicks, of Ralls, for appellee.
   HALL, J.

Appellant, as assignee of the contract, sued appellee for damages in the sum of $740 by reason of appellee’s failure to deliver to appellant 60 tons of cotton seed f. o. b. cars at Lorenzo or Cedric. The contract was made between J. A. Bedinfield and appellee October 1, 1914, and the contract price of the seed is $12 per ton. Axipel-lant alleged the execution and assignment of the contract; that he afterwards sold 60 tons for future delivery to the Star Mill & Elevator Company at Amarillo; that appellee wholly failed to deliver the seed to appellant, putting him off from time to time under promise that delivery would he made; that appellant was at all times ready and willing to receive the seed and pay for same, and on or about April 1, 1915, was compelled to purchase 60 tons of seed in the open market at the place of delivery to fulfill his contract with the Star Mill & Elevator Company, for which he was forced to pay at the rate of $23.50 per ton. He also sued for traveling expenses to Lorenzo, Cedric, Amarillo, and to defendant’s home in looking after the matter.

The defendant’s answer, in addition to exceptions and general denial, alleged specially that defendant had made arrangements with one Arthur Kelsey, who was in the ginning business at Lorenzo, to deliver to plaintiff said 60 tons of seed, and that in pursuance of said agreement Kelsey did deliver the same during the month of November, 1914, on account of the defendant, which was a full settlement and discharge of the obligation sued upon. He alleged further in the alternative that plaintiff had never tendered to defendant the price of the cotton seed nor offered to receive the same, and that he was ready and willing to deliver them to appellant in the event delivery had not already been made. He further pleaded in the alternative that he had a special agreement with Bedingfield, as the agent of appellant, to the effect that appellant would furnish ears in which to load the seed at Lorenzo, and that plaintiff at no time procured cars in which said seed could be loaded, nor did plaintiff give defendant notice to have the seed ready for delivery and that cars would be forthcoming to receive them. i

By trial amendment defendant alleged that between November 15 and January 1, 1915. plaintiff was notified, through his agent, Bed-ingfield, that Kelsey would deliver for defendant to plaintiff 60 tons of cotton seed on Monday or Tuesday of the following week, and that Bedingfield agreed to notify plaintiff and have cars ready for loading the seed, and that plaintiff was to notify Kelsey when he would receive the same; that plaintiff never at any time after said conversation notified defendant nor Kelsey that he would receive the seed. Plaintiff filed a reply denying the defendant’s second amended answer and trial amendment.

Prom a judgment for appellee, appellant appeals, and assigns as error the action of the court in permitting Kelsey to testify that he told one Kilpatrick that the plaintiff was to call him up over the telephone and tell him what day he would set out the cars for the seed, and in permitting the witness Kilpatrick to detail the same conversation. The objection was made that the testimony was hearsay and was not binding upon plaintiff, since it was not shown that he was present and heard the statement. Upon this issue Bedingfield testified that he made no such agreement with Kelsey, and his evidence was in direct conflict with the statement of both Kelsey and Kilpatrick upon this issue. The testimony relates to a material issue in the case, and, since it is clearly hearsay, we think is prejudicial error, requiring a reversal. Neither Kilpat-rick nor' Kelsey were parties to the action, and their statements could not bind appellant in his absence. Fox v. Willis, 60 Tex. 373; Lewis v. Bell, 40 S. W. 747.

The third assignment of error relates to the action of the court in overruling the motion for new trial, upon the ground of newly discovered evidence. The motion was not accompanied by the affidavit of the witness stating what his testimony would be, and was insufficient.

Por the erfors pointed out, the judgment must be reversed, and the cause remanded.
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