author: RICE, J.

text:
    SOUTHERN TRACTION CO. v. KIRKSEY.

    (No. 5512.)
    (Court of Civil Appeals of Texas. Austin.
    Nov. 24, 1915.
    Rehearing Denied Dec. 22, 1915.)
    Railroads <&wkey;327 — Death at Crossing — Contributory Negligence.
    Where plaintiff’s decedent, while driving an automobile along a much-traveled highway and approaching a double crossing with a traction and a steam railroad, where trains and cars frequently passed to his knowledge, there being nothing to obstruct his view of approaching cars in ample time to avoid collision, ran without swerving from his course directly into a traction car as it was crossing the highway, he was guilty of contributory negligence.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1043-1056; Dec. Dig. &wkey;327.]
    Appeal from District Court, Hill County; Horton B. Porter, Judge.
    Action by Mrs. Pearl Kirksey against the Southern Traction Company. Judgment for plaintiff, and defendant appeals.
    Reversed and rendered.
    Templeton, Beall & Williams, of Dallas, and Wear & Frazier, of Hillsboro, for appellant. Shurtliff & Cummings, of Hillsboro, and Scott & Ross, of Waco, for appellee.

      Application for writ of error pending in Supreme Court

   RICE, J.

On the afternoon of May 9, 1914, James Kirksey, while returning in an auto from Dallas to his home at Hillsboro, was killed in a collision with a baggage car on appellant’s interurban railway at Home-wood, a small station on said road, where the highway from Dallas to Hillsboro crosses said railway; and this action is brought by appellee, his surviving widow, to recover damages on account thereof, alleging that appellant was guilty of negligence in running its ear at a rapid rate of speed approaching said crossing, which was dangerous, without giving the usual signals. Appellant denied seriatim the material allegations of appellee’s petition, and averred that it gave the customary signals before approaching the crossing, which its car was crossing in advance of said automobile; and likewise pleaded contributory negligence on the part of the deceased. There was a jury trial, resulting in a verdict and judgment for $5,000 in favor of appellee, from which this appeal is prosecuted.

It appears from the evidence that James Kirksey, the deceased, resided at Hillsboro, where he was then engaged, and had been for many years in the hotel business; that on the morning of the day in question he left Hillsboro in his machine for Dallas accompanied by his negro porter, Milton Graves; that he was familiar with the road he was traveling and the crossing where the accident occurred and had considerable experience in driving autos; in fact, was an expert driver. It seems that he left Dallas alone on his return home between 3 and 4 o’clock in the afternoon that he was killed, reaching Homewood crossing, the place of the accident, between 6 and 7 o’clock; that it was a prairie country, generally level, in and about the crossing; that the highway does not cross the railway track at right angles, but runs east and west in a course about north 60 east and south 60 west, while the railway runs practically north and south. The Missouri, Kansas & Texas Railway at this crossing runs about parallel with the interurban, a short distance west of it. There were several houses just east of the crossing on the north side of the highway. The first was a bam about 18 feet high, with a fence partly of plank and wire around it, about 180 feet from the crossing; the next a shop, being a two-story building, some 25 feet high, and about 75 feet distant from the barn; the next is a chicken house, about 8 feet high, some 8 steps from the shop; the next is a toilet, three steps from the chicken house; the next a smokehouse, guessed to be about 8 feet high, between 4 and 5 steps from the toilet; then a well with a tree standing near it, which with its foliage at that point would furnish some obstruction to the view; and the next house east of this is the Preston dwelling, which is about 75 or 100 feet from the smokehouse. North of the bam is a little cabin used for cotton pickers, and still further north of this in the field is a negro house.

Deloach, the only eyewitness to the accident, states that he lives at Preston’s house on the road near the station; that just before the accident he saw a man in an auto coming from towards Dallas, who proved to be the deceased; that he wanted to go to Redoak, a small town on the same road, and that he waived to the man in the auto who was approaching him, with a view of getting a ride; that on waving the second time the man slowed, looked toward him as if to stop, but did not do so; that the witness was then standing in the roadway in front of the shop, 90 or 100 steps from the crossing; that as the man drove by he heard the noise and rumbling of the interurban, and, looking, saw it approaching; that he watched the deceased, who kept driving down the highway towards the crossing until the collision occurred; that he slowed some, but did not stop the machine, and at the time of the collision was traveling at about the rate of 10 miles' an hour, while he thought the train was approaching at the rate of about 60 miles an hour; upon the happening of the accident he ran immediately to the deceased, who had been thrown from the auto, and' part of his head and body was in the cattle guard. Witness helped to get him out and drew the deceased’s head into his lap and wiped the blood! from his nose and mouth. Deceased was then breathing, but about dead. When witness reached the point of the accident the auto had] been upset, but the wheels were still turning and the machine was in gear. They did not stop turning until Mr. Preston cut it off. That from the barn, which was the nearest house, to the railway track was not less than 210 feet, and that a man traveling the road could distinctly hear and see the approaching train from any point after passing this barn. That the country was open, and one could see the train for half a mile approaching this crossing from the north. It was an open, prairie country, and no fences along the highway on either side. On the south of the roadway was a large open field, which had been planted in oats and was then in stubble. On the north was a cotton field, and a man driving an auto could easily turn out of the highway at that point. There was nothing to prevent any one traveling the highway from seeing the approaching train. Prom the crossing the highway ran some 600 yards east, then turned north. That he did not hear the whistle blow, but would not say that it did not blow. He testified that the interurban car was crossing the highway when the auto ran into it, striking it about the rear of the front trucks. That the auto did not stop or turn after passing him until it ran into the interurban. That when he first saw the interurban approaching it was something like 2% trolley poles distant from the crossing, referring to the poles upon which the wires were strung, the distance between each of said poles being 150 feet.

The testimony of the conductor was to the effect that the car blew, on passing the whistling post, some 450 feet from the crossing; and another witness who was about the Preston place testified that he heard the whistle blow. The conductor further testified that the motorman on the interurban, who is now dead, made an effort to stop the car by applying the air before it reached the crossing. This was corroborated by De-loach. The conductor also testified that he saw the automobile coming, and when he first saw it the interurban and auto were about the same distance from the crossing,

■ which he estimated to be about 3 poles’ length, or about 450 feet. There was a gradual slope from about the crossing northward, and the track going north from the crossing was on a dump, and was slightly elevated. There was no timber, ravines, or anything that would obstruct the view of the car from one-half mile away, north of the crossing. The interurban cars were constructed of steel, very heavy, and made a great deal of noise. It likewise appears that the deceased was drinking while en route to Dallas, and during the afternoon while there, and that when he left Dallas he had two flasks of 'whisky in his auto, but no whisky was found in his machine after the accident, and both Deloach and the undertaker stated that they did not detect the smell of whisky about him. It was shown that this was a much-traveled crossing, and that two passenger ears passed each hour, and in the interval a baggage and express car, which fact was known to deceased.

Appellant asserts that the evidence is insufficient to support the verdict, in that it fails to show negligence on the part of the railway company, and likewise shows contributory negligence on the part of the deceased. We agree with appellant in this last contention. From all the facts and circumstances in evidence we are impressed with the belief that the deceased either saw, or by the use of ordinary diligence could have seen, the approaching train. He did not stop, but kept steadily driving after passing Deloach. If he had stopped, looked, or listened he would have heard or seen the train, because Deloach; testified that by a glance in a northward direction he could have seen the approaching train. Deceased was familiar with the highway, its publicity and the frequency of the passing of trains thereover. He must have known the danger necessarily incident to an attempt to cross the track without looking or listening. If he saw or heard the train he must have been impressed with the belief that he could cross ahead of it. The evidence clearly shows that, instead of the train’s running into the auto, the deceased ran into the train. At any rate, we think the facts show that the deceased was guilty of contributory negligence as matter of law, for which reason appellee ought not to recover. See Ft. Worth & D. C. Ry. Co. v. Harrison, 163 S. W. 332; St. Louis S. W. Ry. Co. v. Branom, 73 S. W. 1064; McDonald v. I. & G. N. Ry. Co., 86 Tex. 1, 22 S. W. 939, 40 Am. St. Rep. 803; Railway Co. v. Edwards, 100 Tex. 22, 93 S. W. 106; I. & G. N. Ry. Co. v. McDonald, 75 Tex. 41, 12 S. W. 860; Houston, B. & T. Ry. Co. v. Rucker, 167 S. W. 301; T. & P. Ry. Co. v. Marrujo, 172 S. W. 588; Butler v. R. T. & C. Street Ry. Co., 99 Me. 149, 58 Atl. 775, 105 Am. St. Rep. 267; New York Central v. Maidment, 168 Fed. 21, 93 C. C. A. 413, 21 L. R. A. (N. S.) 794; Mynning v. Detroit, L. & N. Ry. Co., 59 Mich. 257, 26 N. W. 514; Duerler Mfg. Co. v. Dullnig, 83 S. W. 889; Sherman & Redfield on Neg. par. 57; I. & G. N. Ry. Co. v. Garcia, 75 Tex. 583, 13 S. W. 223.

Believing that the case has been fully developed, it becomes our duty to reverse the judgment of the court below and here render 'judgment in favor of appellant, which is accordingly done.

Reversed and rendered.
      <&wkey;>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: JENKINS, J.

license: Public Domain

text:
    GALVESTON, H. & S. A. RY. CO. v. BRUNE.
    (No. 5521.)
    (Court of Civil Appeals of Texas. Austin.
    Nov. 3, 1915.
    Rehearing Denied Dec. 22, 1915.)
    1. Appeal and Ebrob <&wkey;263 — Reservation oj? Grounds op Review — Necessity of Exceptions.
    Under Acts 33d Leg. c. 59, providing that the charge shall be submitted to the parties or their attorneys and a reasonable time given them to present objections, which objections shall in every instance be presented to the court before the charge is read to the jury, and that all objections not so made and presented shall be considered as waived, that either party may present in writing such instructions as he desires to be given, and that the ruling of the court in the giving, refusing, or qualifying of instructions shall be regarded as approved unless excepted to as provided, the giving and refusal of instructions will not be reviewed where no exceptions were taken to the court’s action.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 1516-1523, 1525-1532; Dec. Dig. <&wkey;>263.j
    2. Appeal and Ebrob <&wkey;742 — Briefs —Assignments of Error— Statements.
    Rule 31 of the Courts of Civil Appeals (142 S. W. xiii) provides that to each proposition under each assignment of error there shall be subjoined a brief statement, in substance, of such proceedings or part thereof contained in the record as will be necessary and sufficient to explain and support the proposition, with a reference to the pages of the record. In an action for the value of cordwood and grass claimed to have been destroyed by fire set out by a railroad locomotive, the statement under an assignment complaining of the admission of evidence as to a fire started by a different locomotive going in the opposite direction, showed that it appeared from the evidence that the engines were different, and the assignment of error referred to the page of the record where the bill of- exceptions might be found and set out the bill in full. Held, that the failure to again set out the bill of exceptions in the statement did not prevent a consideration of the assignment of error.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. &wkey;>742.]
    3. Railroads &wkey;>481 — Eires — Evidence — Similar Eacts and Transactions.
    In an action against a railroad company for the value of wood and grass destroyed by fire, where the evidence showed that all of defendant’s engines were equipped with the same kind of spark arresters, and defendant’s witnesses testified that the arresters were standard ar-resters in general use and of the latest improved pattern, and that the engine could not possibly throw sparks through such arrester, evidence as to a fire started by sparks from an engine other than that claimed to have started the fire which destroyed plaintiff’s property was admissible as contradicting the testimony that sparks could not be thrown through the arrester used.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1717-1729; Dec. Dig. &wkey;481.]
    4. Railroads &wkey;>481 — Fires — Evidence — Similar Facts and Transactions.
    Where the evidence showed that both engines were operated by the same crew, and that the two fires were started on the same day, such testimony was also admissible to show that though the spark arrester may have been of the most improved pattern, the engine was negligently operated, and that though there may have been no negligence in its operation, the company was negligent in allowing combustible material to collect and remain on the track.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1717-1729; Dec. Dig. &wkey;481.J
    5. Railroads <&wkey;481 — Fires — Evidence — Similar Facts and Transactions.
    Where there was a hill at the place where such other fire was started and a witness for defendant testified that when engines exhausted heavily they threw more sparks, but that they threw them so high they would go out before they hit the ground, and it appeared that the engine was pulling upgrade at the place where plaintiff’s property was destroyed, evidence as to such other fire was admissible as tending to contradict the testimony that the sparks would go out before they reached the ground.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1717-1729; Dec. Dig. &wkey;481.)
    6. Evidence &wkey;>501 — Opinion Evidence — Facts Forming Basis of Opinion.
    In an action for damages caused by a fire claimed to have been started by sparks from a railroad engine, plaintiff testified that near the railroad right of way the fire had entirely burned out when he examined it, that as he went north away from the right of way he found limbs which had not entirely burned up, and that the further north he went the more fire he found. Meld, that these facts were sufficient as a basis for an opinion by him that the fire was burning north from the railroad track and not towards the track.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2292-2305; Dec. Dig. &wkey;501.]
    7. Evidence <&wkey;501 — Opinion Evidence — Opinions of Nonexperts.
    A witness, though he be not an expert, may give his opinion when he also states the facts upon which Ms opinion is based.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2292-2305; Dec. Dig. &wkey;501.]
    8. Appeal and Error <&wkey;1051 — Harmless Error — Admission of Evidence.
    In an action against a railroad company for the value of wood and grass destroyed by fire, it appeared that the wood was partly on the right of way and partly on a pasture north of the right of way, and it was defendant’s contention that the fire destroying the wood and grass came from a fire kindled by plaintiff’s sons in a pasture still further north. Plaintiff was permitted to express his opinion that the fire was burning north from the railroad right of way and not towards the right of way. Meld, that the admission of this testimony was not material error even though it was not admissible where the other evidence showed conclusively that the fire was not communicated to the wood or grass from the other pasture.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4161-4170; Dec. Dig. <&wkey;> 1051.]
    9. Damages <&wkey;159 — Fires—Pleading—Evidence. '
    Where, in an action for the value of grass destroyed by fire started by sparks from a railroad engine, plaintiff did not allege the market value of the grass, but alleged that it was worth 50 cents an acre to him for grazing purposes, he was not required to prove its market value, and evidence as to its value to him for grazing purposes was admissible, especially as it was not probable that the grass had a market value.
    [Ed. Note. — For other eases, see Damages, Cent. Dig. §§ 429-438, 440-444, 447, 449-453; Dec. Dig. &wkey;>159.]
    10. Evidence <&wkey;113 — Market Value — Manner of Proving.
    In an action against a railroad company for the value of cordwood destroyed by fire while stacked on tlie ground, evidence that plaintiff had been selling wood delivered in cars at that place at from $2 to $2.50 a cord, that the cost of delivering the wood from where it was stacked into the ears was 10 cents a cord, and that wood was never sold there except delivered in the ears, was admissible to prove the market value of the wood when stacked on the ground, as it showed that its market value was the value when delivered in the cars less the cost of delivering.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 259-296; Dec. Dig. &wkey;113.]
    11. Appeal and Error <&wkey;1060 — Damages &wkey;>138 — Excessiveness — Destruction op Property by Else — Argument of Counsel.
    In an action for the value of wood and grass destroyed by fire, plaintiff testified that the grass was worth 50 cents an acre to him for grazing purposes, that he had been selling wood delivered in the ears at from $2 to $2.50 a cord, and that the cost of delivering it into the cars was 10 cents a cord. Held, that where the value of the grass at 50 cents an acre and the value of the wood at $1.90 a cord, with interest, was less than the verdict, the verdict was not excessive, and remarks of plaintiff’s counsel in his closing speech which could not have been prejudicial except by inducing an excessive verdict were not ground for reversal.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. § 4135; Dec. Dig. <&wkey;1060; Damages, Cent. Dig. §§ 397, 398; Dec. Dig. &wkey;>138.]
    Error from Colorado County Court; J. J. Mansfield, Judge.
    Action by H. Bruñe against the Galveston, Harrisburg & San Antonio Railway Company. Judgment for plaintiff, and defendant brings error.
    Affirmed.
    Baker, Botts, Parker & Garwood, of Houston, and Townsend, Quin & Townsend, of Columbus, for plaintiff in error. Grobe & Miller, of Columbus, for defendant in error.
   JENKINS, J.

This was a suit for damages for the destruction of certain cordwood and grass by fire, alleged to have been caused by the negligence of plaintiff in error. The alleged negligence was insufficient equipment as to spark arresters, negligent operation of the engine, and permitting grass and weeds and other combustible material to accumulate on the track. There was a judgment for defendant in error, from which plaintiff in error prosecutes a writ of error herein.

Defendant in error objects to the consideration of plaintiff in error’s first six assignments of error, for the reason that they and each of them relate to the giving and refusing of charges by the court, to which action of the court no exceptions were taken. We sustain defendant in error’s objections in this regard. The act of the 33d Legislature (page 113), requiring parties to except to the action of the court in giving or refusing charges, has been so often construed by this and other courts that we deem it unnecessary to further discuss that act or to cite authorities.

Defendant- in error objects to the consideration of the seventh and a number, of the other assignments of error, for the reason that no statement is subjoined to the propositions under such assignments as required by rule 31 of the Courts of Civil Appeals (142 S. W. xiii). It is true that the statement does not set out any bill of exceptions under the assignments referred to. The following is a sample of the manner in which such assignments have been briefed:

“Seventh Assignment of Error (Bee. 14, p. 31). The court erred in refusing to grant defendant below a new trial on the ground set out in its amended motion for a new trial in paragraph 14 thereof (Bee. p. 31) and as shown by bill of exception No. 11 (Trans, p. 55), which is as follows: ‘Because the court erred in permitting the witness Ben Werland, over the objection of defendant, to testify that on March 29, 1909, he had some wood burned near Lorine Gravel Pit Spur, some six miles distant, by the La Grange branch train going to Glidden. Objection was urged to this testimony because the undisputed evidence shows that engine No. 622 (it being an entirely different engine from 204, the one alleged to have set out the fire which destroyed plaintiff’s wood) was the one witness identified as setting out the fire at Lorine. Therefore any evidence of other fires set out by other engines is inadmissible for any purpose. Where the engine which is alleged to have set out the fire which destroyed plaintiff’s wood is identified, proof of other fires set out by other engines is incompetent and calculated to mislead the jury into believing that because other engines at other places and at other times set out fire that probably the alleged engine likewise set out the alleged fire.’ ”

This assignment is submitted as a proposition. The statement of plaintiff in error shows, by proper reference to the record, that the issue was as to fire set out by an engine going in the direction of La Grange, which plaintiff’s evidence identified as engine No. 204; and further that the testimony of the witness Werland referred to an engine coming from La Grange, which plaintiff in error’s witnesses identified as engine No. 622. As will be seen, the assignment of error refers to the page of the record where defendant’s bill of exception may be found, and sets out the same in full. We think it would be rather too technical to hold that an assignment of this character should not be considered because appellant failed to again set out his bill of exceptions in his statement. The court is fully informed by the matters in the brief as to the contents of the bill of exception without the necessity of reading the record, and the page of the record is given where such bill of exception can be found. We cannot see that any good purpose would be subserved by again setting out the bill of exception in the statement.

We do not think the court erred in admitting the testimony complained of in the above assignment, for the reason that the testimony showed that there were but two engines on appellant’s road, operating between La Grange and Glidden; that these trains were operated by the same crew, the one going and tlie other returning, and that the fire occurred on the same day. Plaintiff in error’s witness Duncan testified that it was his duty to inspect all engines when they came in, and that he did so and found them all in good repair, with proper spark ar-resters. This testimony included engine 622, as well as engine 204. We quote from this witness’ testimony as follows:

“Stevens’ latest improved No. 4 mesh spark arrester was in engine 204. This was the character of spark arresters in general use by railroads in Texas at that time on this and other roads.”

With reference to his inspection, he 'said:

“This is the way, I simply passed by and cooked my eye on engine 204, and told what condition it was in, and from that I am telling this jury that it was all right. I did not say that engine, I said all of them.”

Andrew Kelley, witness for plaintiff in error, testified as follows:

“The spark arresters that was in that engine, that is the kind you have in your hand. It is standard over this road. * * * That spark arrester is a modern, up to date spark arrester. It is in general use with the S. P. and S. A. & A, P. * * * It is a fact that I have testified that all our engines are equipped with that netting.”

W. S. Frazier, witness for plaintiff in error, testified:

“That engine could not possibly have thrown any fire with that netting and safety appliances. 1 never saw them do it.”

Where the evidence shows that all of defendant’s engines were similarly equipped, it is not error to permit testimony that other engines threw sparks and caused other fires. Such evidence is admissible as contradicting the testimony that sparks could not be thrown through the spark arrester used. Such testimony is also admissible for the purpose of showing that though the spark arrester may have been of the most improved pattern, the engine was negligently operated. This is especially true where the evidence shows that both of the engines were operated by the same crew on the same day; and such testimony is admissible also as tending to show that, though the spark arresters on each of the engines may have been all that was required, and there may have been no negligence in the operation, still there may have been negligence on the part of the company in allowing combustible material to collect and remain on the track. The trains referred to were using coal as fuel, and it is well known that some sparks will be thrown when using such fuel, regardless of the condition of the spark arrester, or the operation of the train. Such testimony was admissible for another reason. It was shown that this train where the wood was burned was pulling upgrade, and that in such cases there will be more sparks than otherwise. Plaintiff in error’s witness Duncan testified that when engines exhaust heavily they throw more sparks, but that they throw them so high they will go out before they hit the ground. The witness Werland’s testimony shows that there was a hill where his wood was burned, and the fact that his wood was burned at said place tends to contradict the testimony of the witness Duncan, above referred to, to the effect that the sparks would go out before they reached the ground. Railway Co. v. Benjamin, 161 S. W. 380; Railway Co. v. Wooldridge, 126 S. W. 603; Railway Co. v. Qualls, 124 S. W. 141; Railway Co. v. Owen, 128 S. W. 1141; Railway Co. v. Donaldson, 73 Tex. 124, 11 S. W. 164; Freeman v. Nathan, 149 S. W. 258.

“ ‘We think that when the question at issue is whether, as a matter of fact, the fire was caused by any locomotive, other fires caused by defendant’s locomotives at about the same time and in the same vicinity may be given in evidence for the purpose of showing the capacity of locomotive engines to set fires by the emission of sparks or the escape of coals. It is admissible as “tending to prove the possibility, and a consequent probability, that some locomotive caused the fire” — language from Railway v. Richardson, 91 U. S. 454, 23 L. Ed. 356, which has often been cited with approval. To show a possibility is the first logical step. That other engines of the same company, under the same general management, passing over the same track at the same grade, at about the same time and surrounded by the same physical conditions, have scattered sparks or dropped coals, so as to cause fires, appeals legitimately to the mind as showing that it was. possible for the engine in question to do likewise. The testimony is illustrative of the character of a locomotive, as such, with respect to the emission of sparks or the dropping of coals. If the possibility be proved, other facts and circumstances may lead to a probability, and then to satisfactory proof.’
“It has also been held that testimony of the character in question is admissible for the consideration of the jury in determining whether or not the railroad was guilty of negligence in not cutting down and removing the grass and weeds from its right of way. T. & P. Ry. Co. v. Wooldridge, supra; T. & P. v. Rutherford, 61 S. W. 422.”

Appellant’s eighth assignment of error complains of the action of the court in permitting appellee to testify that he could tell how the fire was burning, that is, that it was burning from the railroad track north, and not from north to the south. The evidence shows that defendant in error had a pasture of about 75 acres on the north side of the road, which at that place was running east and west, and that his wood was stacked, part of it on the north side of the road on the right of way, and part of it just inside his pasture. The evidence further showed that defendant in error had another pasture lying north of the pasture referred to, and that his sons on that day kindled a fire in the pasture to the north, and it was the contention of plaintiff in error that the fire which burned the wood and the grass originated from this fire in the north pasture. The objection to the testimony of defendant in error was that it was the mere expression of opinion as to where the fire originated. The defendant in error stated .that in that portion of the pasture next to the right of way the fire had entirely burned out when he examined it, but as he went north he found some limbs which had not entirely burned Up, and that the further north he went the more fire he found; and upon this, among other things, he based his opinion that the fire originated on or near the right of way. It is permissible for the witness to give his opinion, though he be not an expert, when he also states the facts upon which his opinion is based. We think the facts given were sufficient as a basis for an opinion. Railway Co. v. Ellis, 134 S. W. 247. Even had said testimony not been admissible, its admission would not have been material error, for the reason that the other evidence in this case conclusively shows that the fire was not communicated to the wood or grass from the north pasture. There was a public road running between the pasture where the fire was and the north pasture, and the grass to the north and west of the small pasture was not burned.

Plaintiff in error’s ninth assignment of error complains of the action of the court in permitting defendant in error to testify that the grass burned was worth 50 cents per acre to him for grazing purposes; the objection being that plaintiff did not allege the market value of the grass burned, and that there was no evidence that it had no market value. Plaintiff alleged that he used the grass for pasturage, and that it was worth to him for that purpose 50 cents per acre. The plaintiff not having alleged market value, but the value of the grass to him, it was not necessary that he should prove its market value. As was said in Railway Co. v. Stone, 60 S. W. 461, it is not probable that grass, under such condition, has a market value. See, also, Railway Co. v. Matthews, 3 Tex. Civ. App. 493, 23 S. W. 90; Railway Co. v. Chittim, 31 Tex. Civ. App. 40, 71 S. W. 297. We hold that the court did not err in admitting this testimony.

Appellant’s tenth assignment of error complains of the action of the court in permitting defendant in error to testify as to the market value of the cordwood destroyed when delivered in the ear. Defendant in error alleged the market value of such wood to be $2 a cord; his testimony showed that he had been selling wood delivered in the cars at that place at from $2 to $2.50 per cord, and that the cost of delivering the wood from where it was stacked into the cars was 10 cents a cord; and also that wood was never sold at that place except delivered in the cars. In order to prove market value of the wood stacked on the ground, it was permissible to prove its value at that place when delivered in the cars and the cost of such delivery. Such testimony showed that the market value was the value thus delivered, less the cost of delivery. Woldert v. Veltman, 83 S. W. 224.

Plaintiff in error’s eleventh assignment of error is overruled, for the reason given herein in overruling the seventh assignment. The twelfth and thirteenth assignments of error relate to the remarks of counsel for defendant in error in his closing speech. We do not see how these remarks could have been prejudicial to plaintiff in error, unless by exciting the prejudice of the jury they induced them to render an excessive verdict. Plaintiff in error’s proposition under its fourteenth assignment of error is that the verdict is excessive. We overrule the three assignments of error last referred to, for the reason that the testimony shows that, allowing defendant in error 50 cents an acre for the 40 acres of grass destroyed, and $1.90 a cord for the wood burned, and 6 per cent, interest on this amount up to the time of the trial, defendant in error’s damage was in excess, to the extent of about $5, of the amount found by the jury and adjudged by the court.

Finding no material error of record, the judgment of the trial court is affirmed.

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

      @u»lTor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: TALBOT, J.

text:
    FLETCHER v. GRINNAN.
    (No. 7437.)
    (Court of Civil Appeals of Texas. Dallas.
    Nov. 20, 1915.
    Rehearing Denied Jan. 8, 1916.)
    1. Pleading <&wkey;376 — Allegation op Answer — Admissions—Necessity of Proof.
    Acts 33d Leg. c. 127, relating to the manner of pleading in the district and county courts, provides that if any special matter of defense shall be pleaded by defendant, the plaintiff shall answer each paragraph, either admitting or denying it, or denying knowledge or information sufficient to form a bglief, and that any fact so pleaded by defendant and not denied by plaintiff shall be taken as confessed. Plaintiff suing as a surviving partner upon an open account, denied the allegations of the several paragraphs of the answer, except those contained in the paragraph setting up that defend-, ant on balancing accounts between himself and plaintiff, found that he owed plaintiff a certain amount and that plaintiff, and his firm, and former partner owed him a certain amount, leaving a balance due plaintiff. Held, that either before or after the statute, plaintiff, without putting defendant’s answer in evidence, was entitled to a judgment for the sum admitted by the answer to be due.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 1225-1227; Dec. Dig. &wkey;376.]
    2. Appeal and EhROR <&wkey;117'5 — Disposition.
    In such ease it was the duty of the Court of Civil Appeals under the statute to render the judgment which should have been rendered in the county court, so that it would reverse the judgment and render judgment for plaintiff for the sum admitted to be due.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4573^587; Dec. Dig. &wkey; 1175.]
    Appeal from Kaufman County Court; James A. Cooley, Judge.
    Action by W. D. Fletcher, surviving partner, against J. S. Grinnan, with cross-action by defendant. Judgment for defendant, and for plaintiff in the cross-action, and plaintiff appeals.
    Reversed and rendered for plaintiff against the defendant.

      Dashiell & Coon, of Terrell, for appellant. Ed. R. Bumpass, of Terrell, for appellee.
   TALBOT, J.

The appellant, as the surviving partner of the mercantile firm of Fletcher & Whitfield, sued the appellee on an open account to recover the sum of $460, alleged to be due for sundry articles of merchandise sold and delivered by said firm, then composed of the appellant and J. B. Whitfield, but which, at the time this suit was brought, had been dissolved by the death of the said Whitfield, to appellee during the years 1910, 1912, and 1913. The defendant, Grinnan, in an amended answer filed February 1, 1915, pleaded a general denial and specially, in substance: (1) That he was the president and general manager of Broadlands, an incorporated seed farm of about 5,000 acres, and since 1892 it had purchased goods from J. B. Whitfield, and the firm of Fletcher & Whitfield, and that the defendant, Grinnan, owned an insurance and real estate business under the name of Grinnan & Grinnan and wrote insurance, and had written various and sundry policies for J. B. Whitfield, plaintiff, and W. D. Fletcher, and Fletcher & Whitfield; (2) that from 1892 to 1909, and about the first of each year thereafter, the plaintiffs jointly and severally contracted with defendant for insurance for the firm and for themselves individually, and it was agreed by all parties that they would have and did have annual settlements about the first • of the year, and whatever indebtedness Broadlands was due the plaintiff was to be credited on whatever amount the plaintiff, W. D. Fletcher, or J. B. Whitfield, or Fletcher & Whitfield, owed the defendant for insurance; that the accounts were mutual and were to be paid in this way; (3) that during the fall of 1909, they had a final settlement of their mutual accounts in this manner, and since that time Broadlands and defendant had purchased various and sundry items of merchandise, and no settlement was ever had save and except as designated, and since that time this defendant had written insurance for J. B. Whitfield in the sum of $512.25, Fletcher & Whitfield $125, W. D. Fletcher $10.80, a total of $648.25, which the plaintiff owed the defendant; (4) that it was agreed and understood between Fletcher & Whitfield and this defendant Grinnan, that the defendant should be credited on their books for whatever indebtedness for insurance the plaintiff or J. B. Whitfield or Fletcher & Whitfield owed the defendant; (5) that it was agreed between said parties and this defendant that if Broadlands would buy goods from said firm of Fletcher & Whitfield, said firm and the individual members thereof would give him, the defendant, their insurance accounts, and that at the end of the year the accounts would be balanced, and if Broadlands owed the said firm, and the said firm, or either member thereof, owed the defendant, then the accounts would be settled on that basis, and, if there was any difference, the payment was to be made on that basis; (6) that on or about the 1st day of January, 1911 and 1912, he obtained from the plaintiff representing the firm of Fletcher & Whitfield, the accounts due by Broadlands and the defendant, and the defendant issued checks of Broadlands payable to J. S. Grin-nan for the amount of said bill; that the plaintiff and said firm were credited with said amount of items by insurance hereinbe-fore Pleaded, and it was understood and agreed between him and the members of said firm as partners and a's individuals, that the credit should be made in this way; (7) that on balancing the accounts between plaintiff, said firm, Broadlands and the defendant, he finds that Broadlands and this defendant owed Plaintiff and said firm $886.75, and that the plaintiff, W. D. Fletcher, J. B. Whitfield and said firm owed this defendant $648.-25, leaving a balance due the plaintiff individually and as surviving partner of said firm of $238.50, which amount he tenders into court; (8) that J. B. Whitfield, one of the members of the firm, died intestate and his estate is insolvent, and that the plaintiff is insolvent, and that unless his counterclaim is allowed he will lose the same. The plaintiff in a supplemental petition, after general and special exceptions to the defendant’s answer and counterclaim, which need not be stated because the court’s action with reference to them is not involved in this appeal, denied the allegations of the several paragraphs of the defendant’s answer, except those contained in the ninth paragraph thereof, and denied that plaintiff, the surviving partner of the firm of Fletcher & Whitfield, ever agreed or knew of the contracts and agreements alleged by the defendant. The plaintiff also denied that the account of J. B. Whitfield individually should be credited, but did not deny the state of accounts as alleged by defendant and admitted the amount alleged to be due by Fletcher & Whitfield, and by plaintiff individually. The allegations of the ninth paragraph of the defendant’s answer, which were not denied by the plaintiff, and which are set out above in stating the contents of said answer, are in substance that defendant on balancing the accounts between plaintiff and defendant found that Broadlands and defendant owed plaintiff $886.75, and that the plaintiff, W. D. Fletcher, and the firm of Fletcher & Whitfield and J. B. Whitfield, jointly and severally, owed defendant $648.25, leaving a balance due the plaintiff of $238.50, “which amount he tenders into court.” The court submitted to the jury three special issues, which were in substance as follows: (1) Was there an agreement between the plaintiff and the defendant, J. S. Grinnan, that the firm’s account and the individual accounts for insurance with J. S. Grinnan were to be credited upon the account of Fletcher & Whitfield? (2) Did Fletcher make the agreement? (3) Did he know of, or consent to it? The jury answered all the questions in the affirmative. The plaintiff! moved for judgment for the sum of $238.50, the amount the defendant admitted due the plaintiff, and the defendant moved for a' judgment in his favor on the findings of the jury. Plaintiff’s motion was overruled, and the defendant’s motion was granted, both of which rulings the plaintiff excepted to and judgment was entered that the plaintiff take nothing by his suit against the defendant and that the defendant take nothing by his “cross-bill herein,” and that plaintiff pay all costs. Plaintiff filed a' motion for a new trial, which was overruled and he appealed.

The only assignment of error presented to this court is as follows:

“The court erred in overruling plaintiff’s motion to enter judgment for him in1 the sum of $238.50, because the defendant in the ninth paragraph in his first amended answer admits that he owes the plaintiff that amount and tenders it to him.”

The proposition is:

“The party is bound by his admissions in his pleadings.”

The defendant, in his answer, and what is referred to by the parties as a cross-action, as has been shown, set up an agreement entered into between the plaintiff, Fletcher, J. B. Whitfield, and the firm of Fletcher & Whitfield, by which in consideration of his giving them his business and the business of Broadlands or “the J. S. Grinnan Seed Farm,” a corporation of which defendant was president and general manager, plaintiff, Whitfield & Fletcher, and J. B. Whitfield would give him all their individual and firm insurance to write, and that the respective amounts which became due under said agreement should be allowed to offset each other; that is, that whatever indebtedness the Broadlands and defendant Grinnan owed the firm of Fletcher & Whitfield, or to either member of said firm, and whatever indebtedness the said firm, or either member thereof, owed the defendant under the terms of said agreement should automatically offset each other, and the difference, if any, paid to the party to whom it was found to be due. The defendant alleged that under the agreement stated he and Broadlands had become indebted to the plaintiff or the firm of Fletcher & Whitfield in the total sum of $886.75, and that plaintiff, J. B. Whitfield, and the firm of Fletcher & Whitfield had become indebted to defendant in the total sum of $648.25, which left a balance due by him to plaintiff of $238.50, and. that he tendered the amount so due into court. The pleadings of the defendant were filed during the time Acts 33d Leg. c. 127, relating to the manner of pleading in the district and county courts was in force, and the plaintiff contends that the admission of the defendant in his answer that he owedi plaintiff the sum. of $238.50, although said answer was not introduced in evidence, entitled him to a judgment for that amount without proof thereof; that if under the statutes of this state, as they existed prior to the passage of the act of the Thirty-Third Legislature above referred to, and the decisions of our courts construing the same, the admission of the defendant did not entitle him to a judgment for said sum of $238.50, since the defendant had pleaded a general denial and the answer containing the admission had not been introduced in evidence ; still as the pleadings in the case raised no issue as to his right to recover the said $238.50, and were filed and the case tried while said act of the Thirty-Third LogT islature was in force, he was clearly entitled upon defendant’s admission to a judgment for said amount, and therefore the trial court should have entered judgment in his favor therefor. On the other hand, the defendant contends that inasmuch as his answer was not introduced in evidence, the admission therein is not available to the plaintiff as a basis for a judgment for the amount admitted to be due, and hence the trial court. correctly overruled plaintiff’s motion for such judgment.

The jury found, upon evidence warranting such finding, that the agreement alleged by the defendant had been entered into between the parties, and the sole question presented for our decision by plaintiff’s assignment of error is: Was the plaintiff, the defendant's answer not having been put in evidence, entitled to a judgment for the sum of $28S.50, admitted in said, answer to be due? We think the question should receive an affirmative answer. In Bauman v. Chambers, 91 Tex. 108, 41 S. W. 471, it was held, as we understand the decision, upon certified questions, that an answer of the defendant in trespass to try title containing no plea of not guilty or general denial, but pleading specially the execution of a deed for certain trust purposes, was an admission of its execution, but that the burden of proving the allegation as to the purpose for which it was executed was on defendant, that fact being by the statute taken as denied by plaintiff. The court said:

“It not appearing from the statement submitted to us that the execution of the deed in question, as alleged in the petition, was denied in any of the defendant’s answers, we are of opinion that it was not necessary for the plaintiff to read the answer in evidence in order to establish the conveyance. The pleadings established it.”

The court further said, in effect, that its opinion was based upon the fact that the answer of the defendant contained no denial of the allegations made in the plaintiff’s petition, and that if the statement certifying the question had shown that the allegations of the petition were denied by the defendant in his pleadings, a contrary decision would have been rendered. Likewise, in the cas6 of Mentz v. Haight, 97 S. W. 1076, the Court of Civil Appeals for the First District held that an allegation in a petition not denied by certain special denials made in the answer, and where the answer contains no general denial will be deemed admitted — citing Bauman v. Chambers, supra. But in Graham v. Henry, 17 Tex. 165, Bourke v. Vanderlip, 22 Tex. 222, Ogden & Johnson v. Bosse, 86 Tex. 336, 24 S. W. 798, Veeder v. Gilmer, 120 S. W. 584, Barnes v. Central Bank & Trust Co., 153 S. W. 1172, and a number of other cases in this state, it is held that:

“It is not necessary for either party to prove that which is distinctly alleged by the adverse party.”

In the first case cited the assignment of a land certificate was involved, and the Supreme Court, after stating that the original assignment was upon the back of the certificate, which was in the general land office, so that the defendant could not procure it, said:

“But the making of the assignment was expressly averred in the petition, and though thereby rendered admissible, there was no necessity for the defendant to produce it in evidence. There can never be a necessity to prove matters of fact which the adverse party has alleged in his pleadings. The jury are sworn to try the issues between the parties; but matters expressly admitted on both sides, not being in issue, do not require proof.”

In the third case cited the execution of certain deeds was involved, and the plaintiff therein, in his supplemental petition, alleged that the deeds were executed by the several parties, but charged that they were fraudulent. The defendants in a special plea alleged the making of the deeds, and that they constituted a mortgage to secure one of them in the payment of a debt. Mr. Justice Brown, speaking for the Supreme Court, said:

“In this state of the pleading it was not necessary for either party to prove the execution of or produce either the deed from Clark to Moore or that from Moore to Johnson. It is not necessary for either party to prove that which is distinctly alleged by the adverse party. * * * Each party could, without reading it as evidence, avail himself of whatever admissions were made in the pleading of his adversary, without admitting anything alleged therein favorable to the party pleading.”

Similar rulings were made in the other cases we have cited, and it would seem that the question here involved is definitely settled in favor of the plaintiff’s contention. The defendant not only alleged facts which showed that he was indebted to plaintiff in the sum of $238.50, but he expressly admitted in his answer that he was so indebted, .and asserted that he was ready and willing-to pay said indebtedness. But if under the decisions rendered prior to the act of the Thirty-Third Legislature, to which we have referred, there remains any doubt of the right of the plaintiff herein to avail himself of the defendant’s admission in his answer that he was indebted to plaintiff in the sum of $238.50, without introducing said answer in evidence, then we think there can be no question of such right under said statute. That statute directs how the parties to a suit shall plead, and declares that any fact pleaded by the plaintiff which is not denied by the defendant in his answer, “or which he, does not deny that he has any knowledge or information thereof sufficient to form a belief, shall be taken as confessed.” Likewise, this statute declares that if any special matter of defense shall be pleaded by the defendant, the plaintiff shall answer each paragraph, either admitting or denying the same, or denying that he has any knowledge or information thereof sufficient to form a belief; and that any fact so pleaded by the defendant that is not denied by the plaintiff shall be taken as confessed. The admission made in the defendant’s answer herein to the effect that he owed the plaintiff $238.50, and no more, was not denied by the plaintiff, and at the conclusion of the trial stood as confessed or an uncontroverted fact, and we think judgment should have been rendered in his favor for said amount.

We are asked by the defendant that in the event the judgment of the county court is reversed, that judgment be not rendered for plaintiff, but the case be remanded for a new trial. In the attitude of the record this request cannot be granted. The plaintiff’s right to recover $238.50 was admitted by the defendant, and under the statute it becomes our duty to render in this court the judgment that should have been rendered in the lower court; it is therefore ordered that the judgment of the county court be reversed, and that judgment be here rendered for the plaintiff against the defendant for the sum of $238.50, and all costs.

Reversed and rendered.
      <§s»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: CARD, J.

text:
    DAWSON v. FALFURRIAS STATE BANK.

    (No. 5526.)
    (Court of Civil Appeals of Texas. San Antonio.
    Dec. 15, 1915.
    Rehearing Denied Jan. 10, 1916.)
    1. Appeal and Erroe <&wkey;1011 — Review — Finding.
    Where the evidence was conflicting, a finding by the court will be upheld.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3983-3989; Dec. Dig. &wkey;> 1011.] .
    2. Attachment <&wkey;375 — Wrongful Attach ment — Damages.
    Where plaintiff attached defendant’s property, defendant cannot for wrongful attachment recover damages for the loss of an advantageous sale, having later made a sale at the same price.
    [Ed. Note. — For other cases, see Attachment, Cent. Dig. §§ 1378-1385, 1387, 1393, 1394, 1398, 1399; Dec. Dig. &wkey;375.]
    3. Tender <&wkey;12 — Sufficiency.
    Where the holder of a note providing for attorney’s fees instituted suit thereon, a tender of the principal and interest due, but without the-attorney’s fees or accrued costs, is insufficient.
    [Ed. Note. — For other cases, see Tender, Cent. Dig. §§ 21-28; Dec. Dig. &wkey;12.]

      4. Appeal and Erkob <&wkey;759-1AssiGNMENTS op Error— Sufficiency.
    Assignments of error in the brief, which are not substantial copies of those set forth in the motion for new trial, will not be considered.
    [Ed. Note.—For other cases, see Appeal and Error, Oent. Dig. § 3094; Dee. Dig. &wkey;>759.]
    Appeal from, District Court, Brooks County; W. B. Hopkins, Judge.
    Action by the Falfurrias State Bank against J. F. Dawson. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    B. L. King, of Kenedy, for appellant. Jno. C. North, of Falfurrias, for appellee.

      Application for writ of error pending in Supreme Court.

   CARD, J.

Appellee sued appellant on a demand note for $1,570, interest and attorney’s fees, the date of the note being January

5, 1914. Appellant was arranging to buy some horses and mules, and) his theory is that he gave the demand note to cover his cheek given for the purchase money of this stock, and that they were to readjust and close the matter by his executing a chattel mortgage on 50 head of cattle he then owned to secure the loan, which was to be made to fall due January 5, 1915.

Appellee’s theory is that he gave the demand note to cover his cheek, but with the distinct understanding that he was to give a mortgage on the stock purchased thereby to secure the same, and in addition was to include in the mortgage 50 head of cattle as a margin. This Dawson refused to do, but did offer to include 31 head of cattle which the bank refused, and brought suit and attached his property. The cause was tried by the court without a jury, and judgment was for the plaintiff, and against appellant on his cross-action for damages by reason of the alleged wrongful suing out of the attachment.

The evidence is conflicting as to what security the bank was to have. There is no dispute that the demand note was given to cover the overdraft made by the check given by appellant in the purchase of the stock; but his contention is that he was to give a mortgage on certain cattle, while the bank contends that he was to give a mortgage on the stock he purchased as soon as he could brand same, and on 50 head of cattle in addition as a margin. Scott swore this was the understanding, and Dawson swore to a different agreement. The evidence was heard by the trial court, and that court’s finding would be conclusive upon us especially where there is ample testimony upon which to base said finding. That Dawson owed the money represented by the note is not denied, and the theory of the bank is that he agreed to secure the loan with certain property and then failed to do this. The demand note was merely temporarily to cover the amount of money furnished, and then they differed as to what was to be given as collateral security. The year’s loan was not consummated because of this difference, but Dawson did owe the debt due on demand. The court has found against his theory, which is conclusive because it was an issue and there was evidence to support the court’s finding. The first assignment is overruled.

The second assignment complains that the court erred in refusing to grant the motion for a new trial because, as stated, the uneontradicted evidence shows that the defendant was deprived of a sale of a pair of the mules for $225, on which he would have made a profit which he claimed as damages; but he said himself that he had sold these mules at $225, and another pair at $250. So he could not have been injured. Appellant says in this assignment that he would have said, if he had been permitted to testify on. that point, that the cash value of the mules was only $150, and the difference between that figure and Y. Crocker’s offer of $225 is what he claimed to have been damaged by reason of the attachment of this pair of mules. But since he did sell the mules for the same he says Crocker would have paid, he is not injured. If, in fact, the mules were only worth $150, then the man who bought them is the one to complain, it occurs to us. The assignment is overruled.

After suit was filed, the appellant tendered the principal and interest due, but did not tender attorney’s fees provided in the note, nor the accrued costs. This was not a sufficient tender under the facts in this case.

The other assignments will not be considered, because those presented in the brief áre not in compliance with the rules, and are not substantial copies of those set forth in the motion for new trial.

The judgment is affirmed.
      dSrxoFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: KEY, C. J.

text:
    FT. WORTH PUB. CO. v. ARMSTRONG.
    (No. 5527.)
    (Court of Civil Appeals of Texas. Austin.
    Dec. 1, 1915.)
    1. Evidence <&wkey;208—Pleading as Evidence.
    Where in an action of libel defendant had filed a plea asserting the truth of the published charge, that plaintiff had confessed to participation in a homicide, but such plea was subser quently abandoned and superseded by an amended answer, and plaintiff filed no plea counting on such former answer as a libel, it was error to allow plaintiff to introduce the former answer in evidence, since it constituted no part of his cause of action.
    [Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 713-725; Dec. Dig. <&wkey;>208.]
    2. Evidence <&wkey;208—Pleading as Evidence.
    Plaintiff having sued in such action for actual damages only and not for punitory damages, such former answer was not admissible in evidence for any purpose.
    [Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 713-725; Dec. Dig. <®=s208.]
    3. Trial <&wkey;251—Instructions—Applicability to Pleading.
    A charge in such action that the jury might, in assessing damages, consider the fact that defendant had filed and withdrawn such r answer was error, since in the absence of a de- I mand for punitory damages, the measure of damages was limited to compensation for the actual injury caused by the original libelous publication on which the action was based.
    [Ed. Note. — Por other cases, see Trial, Cent Dig. §§ 587-595; Dec. Dig. <&wkey;>251.]
    4. Libel and Slander <&wkey;7— Confession to Murder — Charge Libelous Per Se.
    Where defendant published in a newspaper that plaintiff had after 25 years silence confessed to taking part in a homicide, saying that he was getting old and wanted to clear his mind of the affair, and at the time of such publication there were persons living who knew that it was generally understood that the homicide was murder, and it was a well-known fact that the person killed was assassinated in the nighttime by one or more persons, such publication was libelous per se as charging the confession of a crime.
    [Ed. Note. — Por other cases, see Libel and Slander, Cent. Dig. §§ 17-78; Dee. Dig. <&wkey;7.]
    Appeal from District Court, Coleman County; Jno. W. Goodwin, Judge.
    Action by Theodore Armstrong against the Ft. Worth Publishing Company. Judgment for plaintiff, and defendant appeals.
    Reversed.
    See, also, 175 S. W. 1113.
    Sidney L. Samuels and P. W. Brown, both of Pt. Worth, and Woodward & Baker, of Coleman, for appellant. Snodgrass, Dibrell & Snodgrass and Critz & Woodward, all of Coleman, for appellee.
   KEY, C. J.

This is a libel suit, at the trial of which the plaintiff obtained a verdict and judgment against the defendant for $1,000, and the latter has appealed.

We sustain the eighteenth assignment of error, which complains of the action of the trial court in permitting the plaintiff, over the defendant’s objection, to read in evidence to the jury a portion of a former answer filed by the defendant, wherein it was alleged that the statements in the publication alleged to state a libel were in fact true. The publication which constituted the libel was as follows:

“Confesses to Killing 25 Years Afterwards. “Parmer Surrenders to Belton Authorities for Part in Slaying of a Former Sheriff.
“Belton, Texas, No. 15 — After 25 years of secrecy, Theodore Armstrong, a Bell county farmer, yesterday went to the sheriff’s office and confessed taking part in the killing of former sheriff John Olive. He was allowed to make $10,000 appearance bond.
“At the time of the killing a grand jury considered the case but failed to indict Armstrong and since then no grand jury has given the matter attention. Armstrong said he was getting old and wished to clear his mind of the affair.”

An answer which had been abandoned and was superseded by the amended answer upon which the case was tried contained these averments:

“This defendant alleges that it is true that plaintiff Theodore Armstrong did participate or take part in the killing of former sheriff John Olive; that he did subsequent to said killing and prior to the publication of said article by defendant, confess that he had taken part in said killing * * * and in this connection avers that, in substance, the article published by defendant was true.”

Over. appellant’s objection, the trial court permitted appellee to read to the jury as evidence the two extracts above quoted from the defendant’s former answer.

The plaintiff filed no plea alleging that the filing of the answer containing those averments constituted libel, and therefore, if for no other reason, was not entitled to introduce them in evidence as constituting any part of his cause of action; and, as he sued for actual damages only and did not sue to recover punitory damages, such written statements signed by the defendant were not admissible in evidence for any purpose. Express Printing Co. v. Copeland, 64 Tex. 354; Young v. Kuhn, 71 Tex. 651, 9 S. W. 860. In fact, inasmuch as our Supreme Court holds in the case cited that because a statute grants to a defendant the privilege of filing inconsistent pleas the plaintiff has no right to introduce in evidence any portion of the defendant’s answer, it would seem, as the averments referred to were contained in an answer, under no circumstances would the plaintiff, have the right to introduce them in evidence. It is true that at the time this ease was tried the statute was in force which required parties to swear to the facts set up in their pleadings; but that statute in terms re-enacted the former statute, authorizing a defendant to plead as many matters of defense as he saw proper, and in construing which statute the Supreme Court had held that it granted the right to file inconsistent pleas, and, therefore, if in one plea a defendant denied any fact alleged by the plaintiff, he could file another plea admitting that fact, but that such other plea could not be used as evidence against him. The statute requiring pleadings to be sworn to having brought forward and re-enacted that statute, we see no sufficient reason why it should be given a different construction from that formerly placed upon it by the Supreme Court. But, as a matter of fact, the defendant’s plea which was introduced in evidence by the plaintiff in this ease, was not necessarily inconsistent with any other plea it had filed, nor did it tend to prove any fact alleged in the plaintiff’s petition and not admitted by the defendant in its answer. The harm which probably resulted from the introduction of that plea and the charge of the court hereafter to be considered, arises, out of the fact that the jury probably treated the averments contained in that plea as an additional libel and allowed the plaintiff compensation therefor.

We also sustain the twenty-fifth assignment of error complaining of that paragraph of the court’s charge which instructed the jury that they might consider the fact that appellant had filed a plea alleging the truth of the libelous matter in assessing damages. As the plaintiff did not seek to recover puni-tory damages, the measure of damages was limited to reasonable and fair compensation for the actual injury which resulted, not from filing the plea referred to, but from the publication of the libelous article upon which the plaintiff based his cause of action; and, therefore, the error committed by the court in permitting appellee to introduce in evidence the pleading referred to was aggravated and rendered more harmful by the court’s instructing the jury that they might consider the fact that the plea mentioned was filed and withdrawn in determining the amount of damages appellee was entitled to.

We think the trial court ruled correctly in holding that the publication constituted a libel per se, the'plaintiff having alleged and proved that it was a well-known fact in Bell and other counties that Sheriff Olive was assassinated in the nighttime by one or more unknown persons. While it is true that the killing referred to occurred more than 20 years prior to the publication, it is also true that many persons are still living who are aware of the fact that it was generally understood that whoever assassinated Olive committed the offense of murder; and every, person who read the publication complained of would necessarily understand it to mean that plaintiff Armstrong had confessed that he participated in the murder of Olive, and was guilty of that offense. In fact, we are strongly inclined to the view that any one reading the publication would construe it as charging that appellee had confessed to the commission of a crime.

All the other questions presented in appellant’s brief have been considered and are decided against it. Eor the error pointed out, and for the reasons stated, the judgment is reversed, and the cause remanded.

Reversed and remanded.
      <g=»For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <S=»Por oilier cases see samo topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HALL, J.

text:
    WILLIS et al. v. KEATOR.
    (No. 848.)
    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 20, 1915.
    On Motion for Rehearing, Jan. 12, 1916.)
    1. Clerks oe Courts <&wkey;70 — Accrual of Liability ON ORDER 03? COURT.
    In a suit to foreclose a chattel mortgage, in which the mortgagor and a purchaser of the mortgaged property were made defendants, a writ of sequestration was issued and the mortgaged property was sold and the proceeds thereof deposited with the clerk. Thereafter the defendant secured an order dismissing the suit, quashing the sequestration proceedings, and directing the clerk to pay the proceeds in the hands of the sheriff to the defendant purchaser. The order of dismissal was thereafter, on appeal of the plaintiff without supersedeas, reversed, but prior to such reversal the clerk paid over the proceeds in accordance with the order of the court. Thereafter the cause was again tried, and a judgment was rendered against the mortgagor alone, and the clerk was directed to pay the proceeds of such sale to the plaintiff. Hold, that no action would lie on the latter judgment until the issue between the plaintiff and the other defendant as to the ownership of the property had been determined.
    [Ed. Note. — For other cases, see Clerks of Courts, Cent. Dig. §§ 109-118; Dec. Dig. <&wkey;> 70.]
    2. Judgment <&wkey;194 — Finality — “Final Judgment.” '
    A judgment which does not dispose of all the parties and issues is not final.
    [Ed. Note. — For other eases, see Judgment, Cent. Dig. §§ 354-350; Dec. Dig. <@=^194.
    For other definitions, see Words and Phrases, First and Second Series, Final Judgment.]
    3. Judgment <&wkey;903 — Accrual of Action to Enforce.
    No action can be brought to enforce a judgment which is not final.
    [Ed. Note. — For other eases, see Judgment, Cent. Dig. §§ 1722, 1723; Dec. Dig. &wkey;903J
    4. Clerks of Courts &wkey;>70 — Custody of Funds — Duty to I-’ay Over.
    Where after judgment decreeing certain moneys to one of the parties the other appealed and filed his cost bond, but filed no supersedeas bond, it was the duty of the clerk of court in whose hands the moneys were lodged to pay over to the successful party in the judgment such moneys as he had.
    [Ed. Note. — For other cases, see Clerks of Courts, Cent. Dig. §§ 109-118; Dec. Dig. <&wkey;> 70.]
    5. Clerks of Courts <&wkey;70 — Custody of Funds — Jurisdiction — Exclusiveness of Remedy.
    Although under Rev. St. 1911, art. 1769, the county court has- power to hear motions against officers of that court for failure to pay over moneys under its process, the remedy provided is cumulative and does not prohibit separate suit against such officer in any other court having jurisdiction.
    [Ed. Note. — For other cases, see Clerks of Courts, Cent. Dig. §§ 109-118; Dec. Dig. <&wkey;> 70.]
    On Motion for Rehearing.
    6. Pleading &wkey;>35 — Surflusage—Effect.
    Where a petition to enforce a county court judgment contained further allegations of fraud and conspiracy, but no evidence was introduced to sustain such allegations nor any request made for such a finding, such allegations did not change the character of the action.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 76-80; Dec. Dig. &wkey;>35.]
    7. Clerks of Courts <&wkey;70 — Custody of Funds — Payment—Condition of Cause.
    Though, in a suit to foreclose a chattel mortgage, in which a writ of sequestration was issued and the proceeds of a sale of the property were paid into the registry of the court, the lien of the chattel mortgagee attached to the proceeds of the sale, an appeal by plaintiff without supersedeas from an order dismissing the suit and directing the clerk to pay the proceeds to one of the defendants, who claimed the property as purchaser from the mortgagor, did not excuse the clerk from paying over the money as directed.
    [Ed. Note. — For other cases, see Clerks of Courts, Cent. Dig. §§ 109-118; Dec. Dig. <&wkey;> 70.]
    Appeal from District Court, Donley County ; Hugh. L. Umpkres,. Judge.
    Action by F. X. Reatos.- against Wade Willis and others. From a judgment for the plaintiff, defendants appeal.
    Reversed and remanded.
    A. T. Cole, of Clarendon, for appellants. H. B. White and E. A. Simpson, both of Clarendon, for appellee.
   HALL, J.

The appellee filed a suit in the county court of Donley county, on November 12, 1910, against one Whittaker and Tom Moran, to recover a balance of $700, due upon a note executed by Whittaker to Keator, and to foreclose a lien, evidenced by a chattel mortgage, given by Whittaker to Keator, to secure said note. It was alleged that certain sheep described in the chattel mortgage were in the possession of Tom Moran, who was claiming to be the owner of them by purchase from Whittaker; that he had disposed of some of the mortgaged property and was threatening to ship the remainder out of the jurisdiction of the court. By virtue of the writ of sequestration, the sheep were taken into possession by the sheriff of Donley county, and not having been replevied, they were, under the order of the court duly made, sold by the sheriff January 3, 1911, for the sum of $513.S0. This amount was deposited by the sheriff in the registry of the court, of which appellant Willis was the clerk.

On May 19, 1911, Moran, and Whittaker filed their plea in abatement, alleging that the matters in controversy were pending in the district court of Potter county, by a suit previously filed by Keator. This plea was sustained and judgment entered quashing the sequestration, dismissing the suit, and ordering the proceed_s of the sheep to be delivered by the clerk, Willis, to Tom Moran. Prom this judgment Keator appealed, but filed only a cost bond. After the expiration of 20 days, no supersedeas bond having been filed, Willis paid said sum of 3513.80 to Barnett as the assignee of Moran. Subsequently, on May 4, 1912, the judgment sustaining the plea and ordering the fund paid to Moran was reversed by this court (147 S. W. 606). March 20, 1913, upon a second trial upon the same pleadings, the county court of Don-ley county entered judgment in favor of Keator against Whittaker only, foreclosing the chattel mortgage. Moran was not mentioned in this judgment nor was his claim of ownership in any way adjudicated.

After the rendition of the first judgment and the payment of the fund by Willis to Barnett, and before the rendition of the second judgment, Willis’ term of office expired and J. J. Alexander succeeded him as clerk.

Among others, the second judgment contains this recital:

“It is further ordered, adjudged and decreed by the court that J. J. Alexander, clerk of this court, in ease said sum of $513.80 has been turned over to him by Wade Willis, former clerk of this court, pay over to plaintiff, P. X. Keator, said money, and that he credit this judgment with said sum. It further appearing to the court upon the evidence introduced that the plaintiff, P. X. Keator, and the defendant John A. Whit-taker, have heretofore entered into a written agreement, in which it is agreed that the money so deposited in the registry of this court, being the proceeds of a sale of the sheep in question, when paid to the said P. X. Keator, would operate and be a settlement in full of said judgment, which agreement is in writing and filed among the papers in this cause. It is therefore the order of the court that when said sum of money, to wit $513.80, has been paid to the said P. X. Keator that same shall operate as a full and complete settlement and discharge of this judgment, and the clerk thereof is directed to mark this judgment satisfied in full.”

As heretofore stated, this fund having been paid out by Willis, it follows that this order of the court was never complied with by Alexander. Thereafter on June 1, 1913, Keator filed this suit in the district court of Don-ley county, setting up in his petition all of the facts above detailed, except the judgment first above mentioned, which sustained the plea in abatement and dismissed the county court suit. Wade Willis, together with the sureties on his official bond as clerk, and Barnett axe made defendants in this action. Plaintiff alleges the insolvency of Whittaker and Moran. Manifestly, this suit is an effort to collect from Willis and Barnett the fund which the second judgment ordered to be paid to plaintiff.

A trial resulted in a judgment in favor of Keator against Barnett and Willis, and the sureties on Willis’ official bond, for the sum of $513.80, and interest thereon from March 20, 1913, at the rate of 6 per cent

The defendants in that judgment prosecute this appeal, assigning as error, first, the action of the court in overruling appellant’s general demurrer. We think this assignment should be sustained. The judgment rendered March 20, 1913, does not dispose of Tom Moran and the issues raised by the pleadings of plaintiff with reference to his ownership of the property. Moran was duly cited and it is settled law in this state that a judgment is not final which does not dispose of all thei parties and issues. Wichita Mill & Elevator Co. v. Burrus, 164 S. W. 16; Rodriques v. Trevino, 54 Tex. 201; Bradford v. Taylor, 64 Tex. 169 ; Wootters v. Kaufman, 67 Tex. 497, 3 S. W. 465. A multitude of authorities sustaining this rule, too numerous to be cited here, may be found in 8 Enc. Dig. of Tex. Rep. p. 156. It is further held by the great weight of authority that no action can be brought to enforce a judgment which is not final. Ledyard v. Brown, 39 Tex. 402; Black on Judgment, § 959; 23 Oyc. 503.

No supersedeas bond having been filed, it was the duty of Willis as clerk to pay the funds in his hands to Moran or his assignee, Barnett, in accordance with the order of the court. R. C. S. arts. 2101, 2097; Waters-Pierce Oil Co. v. State, 106 S. W. 326.

Appellant contends that the court erred in sustaining the general demurrer because the district court had no jurisdiction of the controversy. It is provided by Article 1769, R. O. S., that the county court has power to Near' and determine motions against all officers of that court for failure to pay over moneys collected under the process of said court. This remedy has been held to be cumulative and does not prohibit the complaining party from filing a suit against any such officer in any court having jurisdiction. De la Garza v. Booth, 28 Tex. 478, 91 Am. Dec. 328; Needham v. Cooney, 173 S. W. 979, 987.

It is unnecessary to consider the remaining assignments and the judgment is reversed and the cause remanded.

On Motion for Rehearing.

It is insisted by appellee that we erred in holding that this is a suit to enforce the county court judgment, and we are referred to paragraphs 9 and 10 of the petition, in which fraud and a conspiracy between Willis and Barnett is alleged. No evidence whatever was introduced to sustain, this allegation, and of course the trial court made no finding upon it; nor was any request made for such finding. If appellee’s right to recover rests upon the allegations contained in said paragraphs then the judgment in his favor is unsupported by any evidence.

We do not controvert the proposition that when the property covered by the mortgage was sold and the proceeds deposited in the registry of the court the lien attached thereto; but that principle has no application to this controversy. No supersedeas bond having been filed, it became the duty of Willis to pay to Moran or his assignee, Barnett, the money in his hands. The rendition of a subsequent judgment, ordering Alexander to pay the sum to appellee could not render the payment by Willis of the fund to Barnett an illegal act if, under the law, it was his duty to make such payment at that time. Appellee states in his motion that he cannot, by amendment, allege any additional facts entitling him to recover, and since the case has been fully developed he insists that we reverse and render the judgment, instead of remanding it, if we adhere to our former holding.

Believing we have properly disposed of the controversy, the motion for rehearing is overruled in part, and the judgment is reversed, and here rendered for appellants.
      (¡&wkey;Eor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HUFF, C. J.

text:
    WESTERN UNION TELEGRAPH CO. v. EXUM.
    (No. 856.)
    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 27, 1915.
    Rehearing Denied Jan. 12, 1916.)
    1. Telegraphs and Telephones <&wkey;67 — Breach oh Contract — Measure oh Dam- ■ AGES.
    A contract to furnish cotton market reports, when breached, entitles the other party to all damages which proximately result from the breach, but'-excludes all damages not so resulting, and all which did not flow from the breach in ordinary and natural sequence without other intervening cause.
    [Ed. Note.- — Eor other cases, see Telegraphs and Telephones, Cent. Dig. §§ 64-68; Dec. Dig. <&wkey;67.]
    2. Telegraphs and Telephones &wkey;>67 — Breach oh Contract — Measure oh Damages — Speculative Damages.
    Where defendant agreed to furnish plaintiff cotton market reports for a consideration, and failed to do so, plaintiff could not recover any damages incurred by his purchase of cotton above the market price, the breach of contract not being the proximate cause of the damage, which was due either to his reliance on other reports or his assumption of knowledge of the market price, which was in itself negligence.
    [Ed. Note. Eor other cases, see Telegraphs and Telephones, Cent. Dig. §§ 64-68; Dec. Dig. <&wkey;67J
    Appeal from Wheeler County Court; M. M. Miller, Judge.
    Action by Frank Exum against the Western Union Telegraph Company. From a judgment for plaintiff after exceptions by defendant to the petition and refusal of its requested peremptory instruction, defendant appeals.
    Reversed and remanded.
    C. E. McYey, of Shamrock, and N. L. Linds-ley, of Dallas (Albert T. Benedict, of New York City, of counsel), for appellant. Hill & Clark and M. Reynolds, all of Shamrock, for appellee.
   HUFF, C. J.

The appellee instituted this suit against the appellant in the county court of Wheeler county, alleging that in October and November, 1913, he was in the cotton business, buying cotton on the streets of Shamrock, Tex., and that he subscribed with appellant for certain daily market reports, which the appellant agreed to furnish. For cause of action he alleges the following, which was submitted by the court to the jury:

“That during the months of October and November, 1913, and while the aforesaid agreement for market reports was in force, the defendant did not furnish unto the plaintiff said morning, noon, and evening reports, or messages, but, on the contrary, so negligently and carelessly conducted its business as a carrier of messages and reports, as that the plaintiff did not receive said reports as the defendant had obligated itself to furnish; that the defendant did, from time to time, and on divers dates, furnish to him a part of the reports contracted for, but they were so irregular, and so delayed and uncertain, and so few, as that they were but of little value to the plaintiff in his business as a cotton buyer, and were not enough in number, or regular enough, to keep him advised of the condition of the cotton market so that he could with profit pursue his business as a buyer; that while so engaged in said month of October and November, 1913, and while plaintiff was carrying out all parts of said agreement incumbent, and while he was not receiving said reports, he purchased from divers persons, who had cotton for sale on the streets of Shamrock, and paid to each, for said cotton, what he believed to be the market value thereof, but on account of the failure of the defendant to furnish said reports the plaintiff, after the purchase of 150 bales of cotton, ascertained that he had paid more than the market value thereof; that he sold said 150 bales of cotton for the greatest value he could obtain for the same, which he avers was the market value thereof, at the time he sold it, and received for said cotton $319 less than he had paid therefor, whereby he says he was actually damaged in the said sum of $319 by reason of the purchase of said 150 bales; that he would not have purchased said cotton at the price he paid therefor if he had received the cotton markets, and had therefrom been advised as to the value of said cotton at the time that he purchased' the samfe.”

He also alleged that he could have purchased during those months 300 bales of cotton, had the market reports been regularly-furnished him, on which he could have made $1 a bale. This last ground of recovery was not submitted by the trial court.

The appellant excepted generally to the petition and at the conclusion of the testimony requested the trial court to instruct the jury to find a verdict for appellant. The action of the court upon the exception and the requested instruction, is assigned in this court as error.

The damages upon which recovery is sought, and upon which a recovery was had, is believed by us to be too remote, speculative, and contingent. The agreement to deliver the market report necessarily includes all those damages which usually or proximately would result in the breach of that contract, and excludes the consideration of all damages which are not the proximate result of the injury by the breach. If appellee was deprived of the market report he may have suffered injury, hut we do not think it can be said if he relied on other sources for information and purchased cotton, paying above the market price, that such other information, if false or erroneous, can be said to have been the proximate result of the breach. If compelled to seek other sources the cost of obtaining such information elsewhere would be the natural result. It could hardly have been in contemplation of the parties that the appellee would go upon the market and buy above the market price with the right to recoup the loss from appellant. The damages must be the natural and direct result of the breach or such as flow therefrom by ordinary and natural sequence. If there is an addition of other negligent acts intervening and aiding in any wise the result, the damages will be too remote to be recovered. Tel. Co. v. Smith, 76 Tex. 253, 13 S. W. 169; Tel. Co. v. Sunset, 102 Tex. 148, 114 S. W. 100; Tel. Co. v. Campbell, 36 Tex. Civ. App. 276, 81 S. W. 580 ; Kopperl v. Tel. Co., 85 S. W. 1018; Reliance Lumber Co. v. Tel. Co., 58 Tex. 394, 44 Am. Rep. 620; McAllen v. Tel. Co., 70 Tex. 243, 7 S. W. 715; Elmendorf v. Classen, 92 Tex. 472, 49 S. W. 1043, 1045; Tel. Co. v. Linn, 87 Tex. 7, 26 S. W. 490, 47 Am. St. Rep. 58; Chapman v. Tel. Co., 90 Ky. 265, 13 S. W. 880.

The damages recovered in this case we believe were too contingent and speculative. It is asserted if appellant had delivered the reports he could and would have purchased the cotton he did purchase for a price less than he paid and that he could have then disposed of the same at a profit. Because he did not get the report he bought at a price above the market price. He either knew or did not know the market price when he purchased. If he knew the market he speculated on an advance; if he did not know, he speculated on his knowledge and assumed that he did know, taking the risk. If he lost he did so at his own risk.

“If subsequent intervening causes take advantage of the negligence of the company which may have had a causal connection with the result' and ultimately produced the damages complained of, the company will not be liable.” Jones on Tel. & Tel. Co., §§ 525, 526; Scheffer v. Railway Co., 105 U. S. 249, 26 L. Ed. 1070.

It was not certain that such purchase could have been made and resold for profit. The case alleged and proven was purely contingent. Tel. Co. v. Hall, 124 U. S. 444, 8 Sup. Ct. 577, 31 L. Ed. 479; Smith v. Tel. Co., 83 Ky. 104, 4 Am. St. Rep. 126. Where damages are speculative, resting upon conjectural evidence, they are not recovered. Damages, such as would be derivable from independent and collateral undertakings, although entered into in consequence of the principal contract, are too uncertain and remote to be considered as part of the damages. 13 Cye. 52-54, inclusive; Fraser v. Echo Min. Co., 9 Tex. Civ. App. 210, 28 S. W. 714.

We believe the trial court should have‘sustained the general exception to the petition, and under the evidence in this case should have instructed a verdict for the telegraph company. However, we have concluded the case should be reversed and remanded instead of rendering the judgment.

Reversed and remanded.
      ©ssHor other eases see same topic anil KEY-NUMBER in all Key-Numbered Digests and Indexes •


author: WALTHALU, J.

text:
    WALKER et al. v. HALEY.
    (No. 497.)

    (Court of Civil Appeals of Texas. El Paso.
    Dec. 16, 1915.
    On Rehearing, Jan. 13, 1916.)
    Appeal and Error &wkey;j272 — Presentation op Grounds op Review in Court Below — Exceptions — Necessity.
    Under Rev. St. art. 1971, as amended by Acts 33d Leg. c. 59, providing that all objections to the charge shall, in every instance, he presented before the charge is read to the jury, and that all objections not so made shall be considered as ‘waived, and article 2061, also as amended, providing that the giving, refusing, or qualifying of charges shall he regarded as approved, unless excepted to as provided, a defendant, to have reviewed the giving of a peremptory instruction, must except before it is submitted to the jury.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§1611-1619; Dec. Dig. <&wkey;> 272; Trial, Cent. Dig. § 680.]
    Harper, C. J., dissenting in part. '
    Appeal from District Court, Brewster County; W. C. Douglas, Judge.

      Trespass to try title by E. Haley against J. W. Walker and others. From, a judgment for plaintiff, defendants appeal.
    Affirmed.
    See, also, 147 S. W. 360.
    J. D. Martin, of Alpine, for appellants. Geo. M. Thurmond, of Del Rio, W. B. Tea-garden, of San Antonio, W. Van Sickle, of Alpine, and Chas. Rogan, of Austin, for ap-pellee.

       Application ior Writ oí error pending in Supreme Court. •

   WALTHALU, J.

This is an action in trespass to try title to about 30 acres of land in what is known as the L. Haley block of land in Brewster county. The suit originally was filed by appellee against appellant Walker. Pending the litigation, and with knowledge of the suit and the claims of appellee and Walker asserted 'therein, appellant Bird bought from Walker. . Appellants’ answer consisted of a general demurrer and plea of not guilty. The defense asserted under said plea was estoppel. The case was tried to a jury, and, at' the conclusion of the evidence, the court instructed a verdict for appellee.

Appellants presented no objection to the ■ charge of the court and took no bill of exceptions thereto. The jury returned a verdict for appellee, upon which verdict the court entered judgment for appellee. In due time appellant filed a motion for a new trial, the grounds theréfor, briefed and filed in this court, being four in number and all complaining of the peremptory instruction given. Appellee objects to a consideration by this court of the assignments of error, because of the failure of appellants to except to the court’s charge. , Article 1971, as amended by chapter 59, General Laws of the Thirty-Third Legislature of 1913, provides that all objections to the charge shall, in every instance, be presented to the court before the charge is read to the jury, and that all objections not so made and presented shall be considered as waived. And article 2061, in the same chapter, of said General Laws, further provides that the ruling of the trial court in the giving, refusing, or qualifying of instructions to the jury shall be regarded as approved, unless excepted to as provided. In the absence of an exception to the charge, this court must consider all objections to the charge as waived. King v. Gray, 175 S. W. 763, and the cases there referred to. The assignments presenting error to the court’s charge cannot be considered, and the case is affirmed.

On Rehearing.

The majority adhere to the view that the failure of appellant to comply with the provisions of chapter 59, Acts 33d Leg., precludes a consideration upon the merits of the assignments, all of which relate to the action of the court in giving a peremptory instruction in favor of appellee. It has heretofore been held by this and other Courts of Civil ' Appeals that the act in question applies to a peremptory instruction. Railway Co. v. Wheat (Ft. Worth) 173 S. W. 974; Needham v. Cooney (El Paso) 173 S. W. 979; Railway Co. v. Feldman (Austin) 170 S. W. 133; Case v. Folsom (Dallas) 170 S. W. 1066; Bohn v. Burton Lingo Co. (El Paso) 175 S. W. 173; Wickizer v. Williams (Austin) 173 S. W. 288; Railway Co. v. Wilson (Texar.) 176 S. W. 619; Denison, etc., v. McAmis (Texar.) 176 S. W. 621; Railway Co. v. Barnes (Ft. Worth) 168 S. W. 991; Elser v. Putnam (Ft. Worth) 171 S. W. 1052. See, also, Gestean v. Bishop, 180 S. W. 302, and McKenzie v. Irrigation Co., 166 S. W. 497, holding that a fundamental error may be waived. 'Chief Justice HARPER, however, is of the opinion that the giving of a peremptory instruction raises a question of fundamental error, and that the correctness of giving the charge should be reviewed whether or not there has been a compliance with the provisions of the act mentioned. In this respect he concurs in the view of the Amarillo court, as expressed in Hovey v. Sanders, 174 S. W. 1026; Owens v. Petroleum Co., 169 S. W. 192; Henderson et al v. Gilbert, 171 S. W. 304; Neville v. Miller, 171 S. W. 1109.

Considering appellant’s assignments upon their merits, Judge HARPER is of opinion that they present no error, and concurs in the view that the cause was properly affirmed. Judge HIGGINS and Judge WAL-THALL are likewise of opinion that the assignments, if considered upon their merits, would of necessity be overruled as being without merit. The entire court, therefore, concurs in the view that the cause was properly affirmed, and that the motion for rehearing should be overruled; and it is so ordered.
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text:
    COX v. W. A. CHANSLOR & SON et al.
    (No. 5558.)
    (Court of Civil Appeals of Texas. Austin.
    Dec. 22, 1915.)
    Paeent and Child <&wkey;12 — Contract by MINOR — Liability oe Parent.
    A father was not liable on a note and mortgage executed by Ms minor son in payment for a buggy, where he did not authorize the execution of such instruments and received no part of the consideration.
    [Ed. Note. — For other cases, see Parent and Child, Cent. Dig. §§ 141-144; Dec. Dig. &wkey;l2.j
    Error from Bell County Court; W. S. Shipp, Judge.
    Action by W. A. Ghanslor & Son against G. W. Cox, Sr., and another. Judgment for plaintiff against the defendant named, and such defendant brings error.
    Affirmed in part, and in part reversed and rendered.
    See, also, 170 S. W. 120.
    Clem C. Countess, of Belton, for plaintiff in error.
   KEY, C. J.

W. A. Chanslor & Son brought this suit against G. W. Cox, Sr., and G. W. Cox, Jr., and sought to recover upon a note for $85, and to foreclose a mortgage upon certain personal property, shown by an affidavit filed in this court to be of the value of $150. The defendant G. W. Cox, Sr., answered by general exception and general denial, and defendant G. W. Cox, Jr., pleaded his infancy in avoidance of the contract, and the defendants also pleaded in reconvention for a rescission of the contract, and to recover $35 paid to plaintiff thereon. The case originated in a justice of the peace court, and was appealed to the county court, where it was tried without a jury and a judgment rendered against the defendant G. W, Cox, Sr., on the note sued on, and that the plaintiff recover nothing as against G. W. Cox, Jr., and that the defendants take nothing by their plea in reconvention; and the defendant G. W. Cox, Sr., has brought the case to this court by writ of error.

The note and mortgage sued on were not executed by G. W. Cox, Sr., but were executed by his minor son G. W. Cox, Jr., and the clear and undisputed proof, coming from both sides, shows that G. W. Cox, Sr., never authorized the execution of the note, and neither did nor said anything to induce Chanslor & Son to accept the note and mortgage, nor did he receive any part of the consideration for which those instruments were executed, which was a buggy sold to G. W. Cox, Jr. Hence we hold that the judgment appealed from is not only without evidence to support it, but is contrary to the undisputed testimony coming from both sides; and, this being the case, the judgment as between G. W. Cox, Jr., and Chanslor & Son is affirmed, but the judgment in favor of the latter and against G. W. Cox, Sr., is set aside, and judgment is here rendered for the latter.

Affirmed in part, and in part reversed and rendered.
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