author: RASBURV, J.

text:
    INDIANA & O. LIVE STOCK INS. CO. v. KEININGHAM.
    (Court of Civil Appeals of Texas. Dallas.
    Nov. 1, 1913.
    Rehearing' Denied Dee. 13, 1913.)
    1. Insurance (§ 146) — Issuance of Policy-Duty to Read.
    Insured is ordinarily bound by the terms ■of the policy, whether he reads it or not.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 292, 294-298; Dec. Dig. § 146.] .2. Insurance (§ 145*) — Issuance of Policy-Conditions.
    Where live stock insurance policies and applications therefor did not provide that the policy was in force only while the horse was in a ■certain town and insured requested a similar renewal policy, and the application therefor did not contain such limitation, insured could assume without reading it that the policy issued did not contain the provisions so limiting the •company’s liability.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 276-291; Dec. Dig. § 145.]
    3. Insurance (§ 151) — Construction of Contract — Conflicting Provisions — Policy and Application.
    Where an application for a live stock insurance policy recited that the policy should be “based entirely upon” the answers in the application, and the policy provided that the application was a “part of the policy” and a warranty by assured, if the policy provided that the horse should be insured only while it remained in a certain county, while the application did not so limit the company’s liability, the application would control.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 308-311; Dec. Dig. § 151.]
    4. Insurance (§ 146) — Construction of Contract.
    Every doubt must be resolved against the company in ease of conflicting and inconsistent provisions in an insurance policy.
    [Ed. Note. — For other eases, see Insurance, Cent. Dig. §§ 292, 294-298; Dec. Dig. § 146.]
    Error to Ellis County Court; J. C. Lump-kins, Judge.
    Action by J. D. Keiningham. against the Indiana & Ohio Live Stock Insurance Company. Judgment for plaintiff, and defendant brings error.
    Affirmed.
    Wm. Thompson and John S. Patterson, both of Dallas, for plaintiff in error. Will Hancock, W. H. Fears, and Supple & Harding, all of Waxahachie, for defendant in error.

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

   RASBURV, J.

Defendant in error sued plaintiff in error upon a policy of insurance by which plaintiff in error agreed to pay defendant in error $750 in the event of the death of defendant in error’s horse described in said policy and alleged the death of the horse and the compliance by defendant in error with all provisions of the policy. In answer to the suit plaintiff in error, in addition to general demurrer, special exceptions, and general denial, alleged specially that the horse died at Dallas, where it was being exhibited at the State Fair, for which it was not liable, since the policy was in force only while the horse was situated in Waxahachie, Ellis county, and with the plea tendered back the premium paid and asked that the policy of insurance be canceled. In response to plaintiff in error’s special plea, the defendant in error averred that in 1909 and 1910 plaintiff in error, upon written application by defendant in error, insured said horse under said policies without such provision, and that upon the expiration of the 1910 policy he made application for a renewal of his policy for 1911, without the clause prohibiting the removal of the horse to other places, and that subsequently plaintiff in error’s agent delivered defendant a policy represented to be in compliance with his application, and, relying upon said representations, defendant in error accepted the policy without reading it and placed the same in a local bank. If was also alleged that the provision regulating the situation of the horse was fraudulently inserted in the policy by plaintiff in error, and that defendant in error was not bound thereby. Defendant in error further alleged that plaintiff in error’s agents had full knowledge of the fact that said horse was being removed from Ellis county and acquiesced therein and consented thereto, and further that express notice was given one of plaintiff in error’s special agents, and that in neither case was any protest made. The foregoing is in substance the answer of defendant in error to the plaintiff in error’s defense. We have not attempted to recite it in the order in which it is set out, since it is in no sense set out in due order of pleading. Upon trial by jury, verdict was for defendant in error for the amount of the policy.

The evidence warrants the following conclusions of fact: The policies by which the horse was insured were issued upon printed applications filled in by plaintiff in error’s local agent in Waxahachie, signed by defendant in error, and then forwarded to Gaines-ville to Mr. J. W. Blanton, a general agent, who had authority to and did issue the policy. The 1909, 1910, and 1911 applications signed by defendant in-error did not contain any provision that the horse while Insured should remain in Ellis county. Nor did the 1909 and 1910 policies of insurance contain any such provisions. On the back of the 1910 and 1911 applications, however, there was written the provision pleaded by plaintiff in error. The clause was written there by Mr. Blanton, or by his direction, in his office in Gainesville, after defendant in error had signed same, without the knowledge or consent of defendant in error, and without notice to him by Blanton or the local agent. The 1911 application was designated “Renewal Stallion Application,” and in making application for insurance defendant in error requested the local agent to renew his old policy. The 1911 policy issued upon the 1911 application did contain the clause prohibiting the removal of the horse from Waxahachie; but, as we have just said, the application did not. The policy was sent by Mr. Blanton to Mr. Alderman, plaintiff in error’s local agent, was countersigned by Alderman, and delivered to defendant in error. Defendant in error did not read the policy, but placed same with a local bank for safe-keeping, where it remained until the insured horse died. Neither Alderman, the local agent, nor Blanton, the general agent, notified defendant in error that the policy contained the provision mentioned. The application for insurance provided that all the statements therein of defendant in error in reference to the description, condition, situation, and value of the horse should be warranties, and warranted as well that no oral representations contrary thereto had been made by defendant in error to the local agent, and that the agent had made no contrary representations to him and agreed that any agent of the company was without authority to bind the company to conditions not contained in the application. The policy of insurance issued upon said application provided that the application, which was the basis of the insurance, should be a part of the policy and should constitute one of its warranties. The policy also provided that the horse was insured while situated in Waxahachie or Ellis county and not elsewhere. The policy also contained warranties unequivocally reciting that agents of the company were without authority to waive the conditions, stipulations, provisions, or agreements of the policy, or to alter or discharge contracts or waive forfeitures, etc. Defendant in error notified Alderman, plaintiff in error’s local agent, and also Tullos, a special agent, that he intended to exhibit his horse at the State Fair in October, 1911, and both said he might do so. Alderman testified that he also wrote the company, notifying it that defendant in error would exhibit the horse at the State Fair in 1911, but received no reply from the company.

The materiality of all of the assignments of error presented by plaintiff in error depend upon the construction to be placed upon the conflict between the application for insurance signed'by defendant in error and the policy issued by plaintiff in error upon said application, and accordingly, in order to shorten this opinion and relieve it of unnecessary issues, we will first consider that point. As we have said in the statement of the pleading, defendant in error averred in the court below that the former policies issued to him. did not contain the provision requiring the horse to remain in Ellis county in order to make the policy enforceable, and the evir dence and the verdict sustained the claim. Such' provision was not contained in his application upon which the policy sued upon was issued, but by the pleading and evidence and verdict it appears defendant in error fraudulently inserted said provision into the policy. Thus, it appears that the provision in the policy is in conflict with the application, in that by the terms of the application the assured was not bound to keep the horse within any particular place, and the collection of the loss as a consequence was not at all dependent upon keeping the horse in Ellis county. Incidental to the question of the conflict between the application and the policy is the preliminary question relating to the duty of defendant in error to examine his policy at all events when delivered to him.

It is stated by Mr. Chief Justice Brown of the Supreme Court, in Ætna Insurance Co. v. Holcomb, 89 Texas, 404, 34 S. W. 915, and supported by numerous authorities, in effect, that the insured, in the absence of any showing of facts or circumstances that will relieve him from the provisions thereof, is bound by the terms of his policy whether he reads it or not.

Measured by the rule stated, were the facts proven upon trial of the case at bar sufficient to relieve defendant in error from the binding force of the terms of the policy? "We think they clearly are. Aside from the fact that the former policies contained no such provision, and that his application stated that the 1911 policy was to be a renewal of his former policy, the application in effect requested the issuance of a policy without the restriction imposed by the policy actually issued, and, in the absence of any notice from the company that it intended to issue a policy containing vital restrictions not provided for by the application, defendant in error had the right to assume that such a policy would be issued as he had requested. The application was one apparently prepared and printed by plaintiff in error for its private use, and, if it intended to in-graft upon it some new provision after defendant in' error had Signed same, some notice of such intention must have been given defendant in error in order to bind him thereto. Accordingly, we hold that the proven facts were sufficient to excuse defendant in error from reading his policy.

What then results from the conflict in the provisions of the application and the policy? And in determining that question we must keep in mind that the application recites that the policy to be issued “shall be. based entirely upon” the answers contained in such application, and that the policy in. pursuance of the declarations of the application especially recites that the application is a part of the “policy and a warranty on the part of the assured.” The application is thus made as much a part of the policy as if its very terms were written into the body of the policy. That being true, then we have one provision of the policy which provides that in order to collect the insurance in case of a loss the horse must be in Ellis county at the time of its death, and another provision that has no restrictions whatever relating to the location of the horse.

In case of conflicting or inconsistent provisions in policies of insurance, it is said in Bills v. Hibernia Insurance Co., 87 Tex. 547, 29 S. W. 1063, 29 L. R. A. 706, 47 Am. St. Rep. 121, that every doubt arising thereon must be resolved against the insurer. To the same effect is Goddard v. East Texas Fire Ins. Co., 67 Tex. 69, 1 S. W. 906, 60 Am. Rep. 1: “The application was a part of the contract, and, if the appellee stated therein that he applied for insurance upon certain conditions * * * in direct conflict with the conditions of the policy issued under and pursuant to the application, it must be assumed that such conditions in the policy were waived by the company when it issued the policy.” Phenix Ins. Co. v. Lorenz, 7 Ind. App. 266, 33 N. E. 444, 34 N. E. 495. See, also, McElroy v. British America Assurance Co., etc., 94 Fed. 990, 36 C. C. A. 615, and many cases there cited. Hence, and in accordance with the views above expressed and the authorities cited, we hold that defendant in error was- excused from reading his policy; that the acceptance of his application ' without notice by plaintiff in error of its intention to issue a policy of insurance varying the terms of the application was a waiver of the provision restricting the location of the horse, and that in any event that clause, being in conflict with another portion of the policy, must give way to the other if thereby a forfeiture of the policy can be avoided. There being no conflict in the testimony upon which our conclusions are based, and such conclusions being sufficient to sustain the judgment of the trial court, it is unnecessary to further discuss the various assignments of error, and, for the reasons stated, same are overruled.

The judgment is affirmed.


source: Caselaw Access Project

author: HENDRICKS, J.

license: Public Domain

text:
    BARTLEY et al. v. ROBINSON.
    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 15, 1913.
    Cause Dismissed by Agreement Dec. 13, 1913.)
    1. Appeal and Error (§ 1127) — Motions to Affirm.
    Defendant in error, within 90 days after acceptance of service of the citation in error, filed a complete transcript, with a motion to affirm on certificate, and the motion was denied as prematurely filed; the 90 days not having elapsed. Held, that a similar motion, filed at the next term of court, should be considered as an independent motion, and hence comes too late, not being made at the term of court at which the transcript should have been filed.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4432-4440; Dec. Dig. § 1127.]
    2. Appeal and Error (§ 625) — Filing of Tbansceipt — Sufficiency.
    Where defendant in error filed a complete transcript of the record in support of his motion to affirm on certificate, and the motion was denied as prematurely filed, the transcript should be considered a sufficient filing of the record to warrant a consideration of the case on its merits.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. § 2743; Dec. Dig. § 625.]
    Error to District Court, Lynn County; W. R. Spencer, Judge.
    Action between T. M. Bartley and others and John F. Robinson. There was a judgment for the latter, and the former bring error. On motion to affirm.
    Motion denied.
    G. E. Lockhart, of Tahoka, and W. H. Bled-soe, of Lubbock, for plaintiffs in error. W. Boyce and Turner & Wharton, all of Amarillo, and Jno. F. Robinson, of Lubbock, for defendant in error.

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

   HENDRICKS, J.

At the last term of the court the defendant in error, John F. Robinson, within 90 days after acceptance of service by his attorney of record of the citation in error, filed a complete transcript of the proceedings in the cause, with a request and motion to affirm on certificate. The 90 days not having expired, we overruled the motion to affirm on certificate, as prematurely filed, and at this term defendant in error proffers another motion of the same nature, if overruled, with a prayer in the alternative for a setting of this case for submission on its merits. Upon a consideration of tlie matter, we believe that this motion to affirm on certificate should also be overruled. We are inclined to think that this should be regarded as an independent motion to affirm this cause on certificate, and, not having been filed at the term of the court at which the transcript should be filed, comes too late; the prior motion being premature and overruled, and the term of court having expired, we are not disposed to regard this as a renewal or a carrying forward of that motion for the purpose of determining this particular question.

We, however, believe that the filing by the defendant in error of the transcript at the last term of the court, within the 90 days, and the plaintiff in error having failed to file any transcript in this court, and it appearing upon the face of it at this time to be a complete transcript, in accordance with the statute, that the same is here for all purposes, notwithstanding at the last term of court the defendant in error was not using it for the apparent purpose of aiding his attempted affirmance on certificate; and without extending this opinion on this matter, it is our order that the clerk shall set this case for submission on its merits, awaiting a further disposition of the cause.


author: RAINEY, C. J.

text:
    TEXAS CENT. RY. CO. v. ROSE.
    (Court of Civil Appeals of Texas. Dallas.
    Dec. 13, 1913.)
    1. Carriebs (§ 353) — Carriage of Passengers — Right to Ejection.
    Even though plaintiff purchased a ticket, yet if he refused to deliver it to the conductor for cancellation, and informed him that he had no money to pay his fare, the carrier’s servants may properly eject him, whether he was intoxicated or not.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 1415; Dec. Dig. § 353.J
    2. Negligence (§ 8) — Care as to Person Intoxicated.
    The care due of a person intoxicated to the extent of being unable to take care of himself is that of reasonable care to avoid injuring him.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. § 10; Dec. Dig. § 8.] •
    •3. Carriers (§ 366) — Carriage oe Passengers — Presumptions.
    Where the employés of a common carrier do not know of the condition of an intoxicated person, they may act upon the presumption that he will exercise care to avoid injury, for they are under no obligation to take unusual precautions to protect an intoxicated man from the consequences of his own folly.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 1454; Dec. Dig. § 366.]
    4. Appeal and Error (§ 1064) — Review-Harmless Error.
    In a personal injury action by a passenger who had been ejected from a train while in an intoxicated condition, owing to his refusal to pay his fare or to produce his ticket, where he counted upon the negligence of the carrier’s servants in leaving him at a dangerous place while physically and mentally incapacitated, repeated charges, which allowed recovery upon proof of either physical or mental incapacity, were prejudicial, for if only physically incapacitated, plaintiff could have used care to protect himself from injury.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4219, 4221-4224; Dec. Dig. § 1064.]
    5. Carriers (§ 366) — Carriage op Passengers — Ejection op Intoxicated Passenger.
    Where the servants of a carrier ejected an intoxicated passenger who was both mentally and physically incapacitated, the carrier’s liability depends upon whether the place of ejection was such a one as a prudent person would have considered safe under the circumstances.
    [Ed. Note. — For other eases, see Carriers, Cent. Dig. § 1454; Dee. Dig. § 366.]
    Appeal from District Court, Dallas County ; Horton B. Porter, Judge.
    Action by Charley Rose, by next friend, against the Texas Central Railway Company. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    Alex. S. Coke and S. W. Marshall, both of Dallas, and Spell & Sanford, of Waco, for appellant. Walter Collins and Shurtleff & Cummings, all of Hillsboro, for appellee.

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

   RAINEY, C. J.

Suit by appellee against appellant to recover damages for personal injuries in the loss of a leg through the alleged negligence of appellant. The petition alleged, in substance, that on the 17th of September, 1912, while in Waco, Tex., he became intoxicated to such an extent that he was rendered mentally and physically incapable of protecting himself from danger, or of appreciating his danger, or of knowing and understanding the nature and consequences of his acts, and that said condition obtained until after he received the injuries alleged; that while in such condition he purchased a ticket which entitled him to transportation from Waco to Aquilla, and, boarding the train at Waco, the train crew at the time knowing his condition, was put off at Tokio, a station nearer Waco than his destination ; that he was still in the same condition, and said place was one of danger, and that trains passed at intervals over said track, and plaintiff on account of said condition came in contact with one of defendant’s trains, and his leg was so mashed amputation was necessary. Defendant answered by general and. special exceptions, and denied specially any knowledge on the part of defendant’s agent that appellee was intoxicated; that the conductor called on .appellee for his fare, and appellee denied having a ticket, or that he had any money with which to pay fare, and that when Tokio, a regular station, was reached appellee got off the train without assistance; and also contributory negligence. A trial resulted in a verdict and judgment for $10,000, from which this appeal is taken.

The appellant complains of the following paragraph (7) of the court’s charge: “If you believe from the evidence that the plaintiff, Charley Rose, or some one for him, bought a ticket from the defendant’s agent at Waco, which entitled the plaintiff to ride on defendant’s train to Aquilla, and that after buying the ticket he boarded the train he was mentally or physically incapable from the use of intoxicants of caring for and protecting himself, and that the defendant’s employes in charge of the train knew that such was his condition or knew from his conduct such facts as reasonably would have produced such knowledge in an ordinary mind, and that the defendant’s servants of its train with such knowledge allowed the plaintiff to board said train, and that said employés knew at the time plaintiff boarded the train that his destination was Aquilla, and if you further believe from the evidence that at Tokio the defendant’s employes in charge of said train ejected plaintiff from the train, or that plaintiff debarked from said train at the order or request of the defendant’s employes, and that after leaving said train he was injured, as alleged in his petition, and if you further believe from the evidence that the defendant’s employes in charge of said train were guilty of negligence in ejecting plaintiff from the train, if they did, or in directing or ordering him to leave the train at said place as they did, and that such negligence, if any, was the proximate cause of plaintiff’s injury, if any, you will find for plaintiff.”

The charge assumes that because appellee had bought a ticket to Aquilla he was entitled to the same care as a passenger, regardless of his refusal to deliver it to the conductor when called on to do so. Under the evidence we think this was error. Conceding that appellee had purchased a ticket entitling him to transportation, it was of no use unless presented to the conductor for cancellation. The uncontradicted testimony shows that appellee denied having a ticket, or that he had money to pay his fare. Such being the case the servants of appellant had the right to eject him at a proper place, whether he was intoxicated or not. The care due an intoxicated person to the extent of being unable to take care of himself is that of reasonable care to avoid injuring him. If the employés do not know of the condition of the intoxicated person, they may, as a rule, act upon the presumption that he will exercise care to avoid injury, for they are under no obligation to take unusual precaution to protect a man from the consequences of his own folly or wrong. Elliott, R. R., § 1172 (2d Ed.); Railway Co. v. Evans, 71 Tex. 361, 9 S. W. 325, 1 L. R. A. 476; Brown’s Adm’r v. Railway Co., 103 Ky. 211, 44 S. W. 649; Nash v. Railway Co., 136 Ala. 177, 33 South. 932, 96 Am. St. Rep. 19; McClelland v. Railway Co., 94 Ind. 276.

The court also told the jury that if when appellee boarded the train he was “mentally or physically incapable from the use of intoxicants of caring for and protecting himself,” and the employés knew, of it, and they were negligent, etc., in ejecting him the appellant would be liable. It will be noted that liability is based on the existence of two conditions of the appellee at the time of his ejection, for either of which a recovery could be had, viz., that of mental incapacity, and that of physical incapacity, when a recovery is sought upon the .ground of mental and physical incapacity, and a recovery could only be had upon the evidence showing both mental and physica] incapacity. The error is emphasized in three or four paragraphs of the charge, which aggravates the error and renders it reversible error. A man intoxicated is not always mentally incapacitated thereby, and his mind may be able to appreciate his condition and fully realize his situation. If he was physically incapacitated and the mind not, he could not go into danger, if placed in a safe place. But if mentally incapacitated only, he could not use his senses, and would be liable to run into danger.

If the appellee at the time of his ejection from the train was mentally and physically incapacitated from being able to care for and protect himself from danger, then appellant’s liability depends upon whether or not the place where ejected was such a one as a prudent person would have considered safe under the circumstances. Thompson on Neg., vol. 3, §§ 3246-3248.

There are various assignments of error which we will not discuss. What we have said sufficiently shows upon what line the case should be tried.

The judgment is reversed, and the cause remanded.


text:
    Ex parte SAMS.
    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 15, 1913.
    Rehearing Denied Dee. 13, 1913.)
    1. Habeas Corpus (§ 99) — Transfer op Child.
    A surrender of the possession of a child by its parents, whether evidenced by a written instrument or resting in parol, is not a contract, and cannot be enforced as such, because neither the child nor its custody is a matter of contract, although the transfer will be enforced if for the benefit of the child.
    [Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. § 84; Dec. Dig. § 99.]
    2. Habeas Corpus (§ 85) — Actions for Custody-Evidence — Sufficiency.
    In an action by a father for the custody of his minor child, evidence held to establish that the child’s maternal grandparents acquired custody lawfully.
    [Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. §§ 77, 78; Dec. Dig. § 85.]

      3. Habeas Corpus (§ 99) —Custody op Child — Rights op Parent.
    Appellant eloped with the minor daughter of respondents, and upon a reconciliation the runaways made their home with respondents. About two years after the young wife was killed, leaving a child less than a year old. Appellant, the father, left the child with its maternal grandparents, who carefully nurtured it, and were in a position to do so. Held, that, as the prime consideration in such matters is the welfare of the child, the custody of the maternal grandparents would not he disturbed while the child was of tender years; the father being inexperienced, and the maternal grandmother being able and anxious to take the best possible care of the child.
    [Ed. Note. — For other eases, see Habeas Corpus, Cent. Dig. § 84; Dec. Dig. § 99.]
    4. Habeas Corpus (§ 113) — Custody op Child — Harmless Error — Admission of Evidence.
    In habeas corpus for the custody of a child, the erroneous admission, of a deposition taken in another suit is not prejudicial error where the same matters were testified to by another witness.
    [Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. §§ 102-115; Dee. Dig. § 113.]
    Appeal from District Court, Hale County; L. S. Kinder, Judge.
    Habeas corpus by Buck Sams for the custody of Robert Andrew Sams. From a denial of his application; he appeals.
    Affirmed.
    ' C. D. Russell, of Plainview, for appellant. R. M. Ellerd, of Plainview, and Carrigan, Montgomery & Britain, of Wichita Falls, for appellees.

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

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

   HENDRICKS, J.

Buck- Sams, the father of Robert Andrew Sams, a minor child, sought to recover the custody of said minor by writ of habeas corpus from appellees, Bob Mitchell and E. A. Mitchell, the maternal grandparents, and, upon hearing before the court, the temporary custody of the infant was awarded to the maternal grandparents Mitchell.

The first contention of appellant is that the .district court in a habeas corpus proceeding has no right to inquire into the matter of the fitness of a parent to care for his minor child, unless it is first shown that said parent has voluntarily surrendered his custody of the child to some other person, .and claiming that, such voluntary surrender not having been shown in this record, the father, without any further inquiry, was entitled to his child. If we concede the correctness of the appellant’s proposition as a legal principle, we are inclined to think that an analysis of this evidence is sufficient to show that the father at one time did surrender the custody of his child to the maternal grandparents, and that the control of the child by the appellees Mitchell, as an original question was not an illegal control. This evidence discloses the marriage of Buck Sams with the daughter of the appellees when he was about 20 years of age and his wife a maiden of about 16. It was a “runaway” match, with a complete reconciliation between all parties immediately following the marriage; Sams and his wife, almost immediately after said marriage, making their home with the appellees, and the child was born in the house of the latter about 14 months after the marriage. Upon the 4th of July, 1913, a deplorable automobile accident occur-ed in the town of Plainview, the home of these people, at a time when Buck Sams was driving the car; the automobile was wrecked, his wife was killed, and at that time the child had been left at the home of the grandparents Mitchell. R. H. Mitchell testified: “After the funeral, and after the return from the cemetery (the funeral took place from our house), old Mr. Sams said, * * * ‘We want you to have the baby; we want you to come to see us; and we want to come to see you;’ and I said, ‘That is fair; I will do the best I can by it.’ Buck spoke up, and said, ‘I want you to bring the baby to the store to see me.’ I said, T will whenever I can.’ We then went back into the room where my wife was, and about the same conversation took place. Buck was asked if he was going to his father’s or stay there (here), and I told him I would furnish him a room, and he could stay there (here) as long as he wanted to. So my wife took charge of the baby, and Buck lived there until about the last of August. During that time he and I talked about the baby two or three times; I asked him if it was his intention to let us have the baby until it is grown, and he said, ‘That is what I understand.’ I told him I wanted to do the best I could by it, and he replied he was satisfied of that. I then told him I would have some papers drawn up to that effect, so that after I had partly raised it he could not come and take it. Four or five weeks after that I told him the paper was at Mathis & Williams’ office, and for him to go and look at it, and he said he would take it and let his father see it before signing it, and I told him that would be all right.” It seems that some character of suit was instituted by the appellees Mitchell, against Sams which was dismissed prior to the filing of the present suit by Sams, and with reference to this prior suit and his intentions at that time he said, “I did not make any effort to get the boy until they brought this suit, and did not have at that time any present intentions of taking it,” rather corroborative of the relinquishment of the child, asserted by appellees. When young Sams refused to sign the formal instrument, he did not demand the possession of the child, and this refusal would not affect the prior relinquishment of the custody of the child. The surrender of the possession of the child by its parent, whether evidenced by written instrument or in parol, as an attempted transfer of the child, of course “is not a contract, and cannot be enforced as such, because neither the child nor its custody was the subject-matter of contract.” Legate v. Legate, 87 Tex. 252, 28 S. W. 282. The Supreme Court, however, further says in the same case: “It is sometimes said that such a voluntary transfer is ‘void,’ or that it is ‘contrary to public policy’; but the cases using such language show that it is not used in an absolute sense, but in the sense that such transfer is no impediment to the action of the court in determining what is the best for the interest of the child. The law does not prohibit such a transfer, but, on the contrary, allows the child to reap the benefit thereof when it is to its interest so' to do.” While Buck Sams finally refused to sign a formal instrument several weeks after the previous conversation, in which it is stated that he understood that the Mitchells were to have the baby until it was grown, however, we think the evidence, taken as a whole, is sufficient to show that the status of the maternal grandparents as to the child was not illegal, and' think that the court should not have awarded the child to the father without further inquiry as to the best interests of the infant, which in all cases of this character is the paramount issue involved.

Second. The appellant, Buck Sams, strenuously assails the judgment of the trial court by asserting that, “even if the court found that he [the father] had voluntarily surrendered the baby into the custody and keeping of Bob Mitchell and E. A. Mitchell, upon the hearing, the burden was upon the latter to show to the court that he was unworthy of the trust imposed upon him by law to maintain and rear the child;” the relators relying principally upon the theory that the presumption that arises when a parent is demanding the custody of his child, that the best interest of the child is presumed to be with its parent, is not overcome in this record, and cites the case of State v. Deaton, 93 Tex. 244, 54 S. W. 901, by our Supreme Court, as one of the cases convincingly suggestive that the father should recover the custody and possession of his child. Of course we acknowledge all the force attributable to the language of the Supreme Court with reference to the principle enunciated. Our Supreme Court there had a case under consideration where the mother had surrendered the child to a connection whose wife was a distant relative to the applicant to raise and care for the same. Her financial condition and surrounding circumstances at that time were such as to prevent the proper raising and education of this child; but subsequently by marriage her financial condition became very much improved, and her husband joined with her for the recovery of her child. There was no question as to the character of the mother and as to the condition of her husband with reference to the future maintenance' and education of this particular minor. The district court and Court of Civil Appeals denied the application of the mother, and the Supreme Court, where no question whatever was raised as to the fitness of the mother, reversed and rendered the case. This question has been before our higher courts several times, and has been often d.ecided by numerous courts of the different states. Every case is bottomed upon the particular facts as this ease should be, and in the determination of conflicting rights the guiding star is, of course, the best interests of the child, either temporarily or permanently. As stated, Buck Sams, at the time of the marriage, was about 20 years of age, and only 22 at the time of the trial. Prior to the time of the disagreement between him and the maternal grandparents, they had either lived with the latter-or only a block and a half away, and Sams testified that, after they moved from the home of the Mitchells to another home near by, the maternal grandmother had about as much care of the child as its own mother, and at the very time of the unfortunate catastrophe, when the mother was kiiled, the baby was in the care of these, grandparents. The testimony is susceptible of the conclusion that Sams was drunk, and drove the auto at a rather reckless rate of speed, which to some extent contributed to- the accident. Sams testified that, although he had run away with the daughter, had signed an affidavit (but not sworn to) that she was over 18 years of age, yet these grandparents, up to the time of the disagreement over the child, had not complained or used a single word of reproach, and the relations between them were amicable in every respect. The several months that he stayed in their house these grandparents provided a home and board for him and his wife without charge. The grandparents testified that when Sams moved to the home near by they visited their daughter nearly every day, and that they still helped to care for the baby, and this continued until the death of his daughter, with the exclusive care thereafter of said child. Buck Sams testified that a short time after the death of his wife, and during a spell of sickness of the child, he went to Galveston for a period of about five days, and said that during the sickness of the child (whether before or after the trip we are unable to infer): “I was not up a single night with the baby. I did not have a room where I could be with it. The baby was very sick during a good part of the time. . I did not go down and- ask about him a single night.” He further said that after he left the home “during September, October, and November, he was not afraid but what the baby would be properly cared for, and he knew that they would take good care of the child.” The testimony indicates that young Sams, at least prior to the death of his wife, although by a great many considered as sober- and industrious and a hardworking young man, was rather a steady drinker, keeping whisky at times at his home, and ordering beer by the barrel. He says the reason he left the home of the Mitchells was that Mrs. Mitchell accused him of murdering her daughter. Mr. Mitchell gives an entirely different version of the conversation at that time, stating that when Sams said that he could not sign the instrument prepared by the lawyers for the transfer of the child, and that it would break his mother’s heart, his wife replied, “You have not broken any hearts, have you?” Sams further said that' the mother, for the purpose of obtaining his signature, held a threat of indictment over his head for the killing of the daughter, and states that when these things occurred Bob Mitchell was present; and Mitchell states that he did state to young Sams that, “You know if it had not been for me you would have been indicted,” and further stating to him that there was no intention whatever of having him indicted for anything with reference to that matter.

When Sams left the home of the maternal grandparents, the evidence discloses that they tried at various times to get the father to come and see the child, which was refused by him, on the ground that he did not know what they would do; that he did not feel just right about what they had said to, him. On one or two other occasions the child was in an auto in the streets of Plain-view, and he was solicited to come and see the child, but refused without any reason. We are inclined to think that the appellant in this instance has exhibited some indifference to the real welfare of the child. Of course we are not pretending to sound the depths of human affection flowing from parent to child; but we do believe that the trial court, under all the circumstances, was entitled to hold that temporarily the best interests of this child were with its maternal grandparents. The prior actions of the father, may have indicated to the trial court some deterioration in that moral force and character which in some degree unfitted him for the supervision of this infant at this particular time, notwithstanding the care and nurture would be with his mother. The child at the time of the trial was shown to be in the very best of health, and the love and affection of the maternal grandparents is strong, and their previous solicitude and successful care undisputed. It is natural that this particular grandmother knows more of the temperament and the physical necessities of this child than any other person living. The record does not show that the paternal grandparents in any one particular had ever had the care of this infant, either in sickness or in health; naturally so, as the mother of this child would turn to her own mother for advice and assistance in the care of her • child. The testimony indicates a peculiar and unusual disposition of forbearance upon the part of the appellee Bob Mitchell with reference to the appellant, Buck Sams. The father of Sams, after his daughter-in-law’s death, evidently having in mind the best interests of the child, agreed that it was best for the Mitchells to have the infant. It is true he says that he is willing now to give Buck and the child a home in his house, and that it is his wife’s wish, and this court is not drawing any invidious comparisons between the two homes, but the strong attachment of the grandmother Mitchell and the grandfather, it being the only lineal relative, intensified by the association previously and at present existent, with the care at all times manifested for the baby — naturally at this time their knowledge of the child is greater and the attachment stronger. If you eliminate the paternal grandparents and the home offered by them in this case, there could be no hesitation on the part of any court that the appellees should have the child.' The evidence indicates that both grandparents are people of comfortable circumstances, the father and mother of Sams being 60 and 45 respectively, and the citizenship and moral worthiness of all unquestioned; Bob Mitchell is 51, and his wife 39, the latter in good health, and in every way capacitated to care for the baby. But the inexperience of the father, taken in connection with other circumstances with reference to his attitude towards the child, aside from the mother and father, would necessarily, when you regard the best interests of the child, lead to this conclusion.

The case of Sturdevant v. State, decided by the Supreme Court of Nebraska, reported in 19 N. W. 618, was one where an infant child, eight months old, was placed in the custody of its grandparents, its mother being dead, and on account of the father’s age — 23 years — and inexperience of the father of the child, the grandparents’ custody was maintained. That court said: “From a careful examination of the authorities at our command, we think the prevailing rule in this country may be briefly stated to be that in controversies similar to this, especially where the infant is of the tender age of the one contended for, the court will consider only the best interest of the child, and make such order for its custody as will be for its welfare, without any reference to the wishes of the parties. * * * It is no doubt true that the defendant in error is greatly attached to this child, and the facts as found by the court show that he is in every respect a suitable person to have its care and custody. But when we consider his age and want of experience we are driven to the conclusion that personally he could not care for the wants of a child so young and helpless. * . * * The grandparents have had the custody of the child since its birth, are greatly attached to it, have ample means to provide for its wants, and have the judgment and experience so essential and necessary to convince any one that it is better for the eMld to remain where it is until such time as its age and condition will justify the father in assuming its custody.”

Our own Supreme Court (Legate v. Legate, 87 Tex. 248, 28 S. W. 281), has said in cases of this kind: “The right of the parent or the state to surround the child with proper influences is of a governmental nature; while the right of the child to be surrounded by such influences as will best promote its physical, mental, and moral development is an inherent right, of which, when once acquired, it cannot be lawfully deprived.”

As stated, there is no question as to the citizenship of the grandfather Sams and the excellence of his wife, the paternal grandmother. There is, however, the question that the Mitchells know this infant better and are endeared to it deeper on account of the previous association and solicitude in sickness and in health than any other one person; that they understand better its physical well-being, and we all know that a child of this age is to a considerable extent passing through a critical period in infantile existence; probably since the death of its mother, at which time it was about seven months of age, it has been a “bottle baby,” sustained by artificial food. We do not say that the evidence shows that the paternal grandparents will not give this child the same attention as the maternal grandparents; but we do say that it is a demonstrated fact, from the birth of this baby, through all infantile vicissitudes, the deep solicitude and successful nurture manifested by the appellees point to the correctness of the trial court’s conclusions. The following cases, involving controversies between the parent' and grandparents, and decided in favor of the latter, touch this case upon some features of the question involved; the prime consideration in some of the cases being the best interests of the physical condition of the child, and in some of the eases blended with a moral and mental welfare of the infant, and considered by the court in awarding the child to the grandparents who had in the past the care and custody of the infant, and to which we refer without further extending the limits of this opinion: McKercher v. Green, 13 Colo. App. 270, 58 Pac. 406; State ex rel. Thompson v. Porter, 78 Neb. 811, 112 N. W. 286; Gardenhire v. Hinds, 38 Tenn. (1 Head) 410; Ex parte Davidge, 72 S. C. 16, 51 S. E. 269; Jones v. Darnall, 103 Ind. 569, 2 N. E. 229, 53 Am. Rep. 545; Hussey v. Whiting, 145 Ind. 580, 44 N. E. 640, 57 Am. St. Rep. 220.

The appellant insists that the court improperly admitted and considered the deposition of one Runyon and his wife taken in another suit between the same parties; this record disclosing that in that case the same question, that is, the custody of this child, was involved. This testimony purports to reveal certain occurrences between Sams and his wife and the conduct and condition of Sams on one of the streets of Plainview a short time prior to the accident when Mrs. Sams was killed. The prevailing and influencing considerations indicated in this opinion, requiring, as we think, an affirmance of the judgment of the trial court, devitalize the force of the position of appellants as to any technical' error' committed by the trial judge in the admission of this testimony, and make it of little weight, if any, in regarding the matter of the real interests of the child, considering its helplessness and the present possession of the Mitchells in ministering to the child for its present welfare. The same testimony was in substance delivered by another witness on the stand, the brother of Runyon, who saw the occurrences detailed iu the depositions, and upon the whole we think the error harmless, and overrule the assignment.

The court’s judgment in this cause, the form of which we commend, is merely a deprivation of the father, and a permission of the custody of the maternal grandparents, subject to the further order of the court, with the further provision for the right of visitation of the father at all reasonable times for the purpose of seeing the child, and our conclusion is upon the whole that the judgment of the court as to the present custody of this child is proper.

Judgment affirmed.


text:
    ELLERD v. CAMPFIELD.
    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 22, 1913.
    On Motion for Rehearing, Dec. 20, 1913.)
    1. Teial (§ 349) — Special Issues — Discretion op Court.
    The rule of the Supreme Court for the district and county courts that special issues should be submitted only when the pleadings contain several combinations of fact, each of which constitutes a cause of action or ground of defense, is not a limitation of the power of the court and a definition of the character of the cases which should be submitted to the jury on special issues; but, under the statute, the court, on the request of either party or on its own motion, may submit a case on special issues, and a party complaining must show that he was prejudiced thereby before he can complain.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 590; Dec. Dig. § 349.] .
    2. Trial (§ 255) — Instructions—Definition of Terms — Requests—Necessity.
    The failure of the court to define legal phrases in its instructions is not error, unless the party objecting requests a charge defining the terms, and, in the absence of a special request, the failure to define the word “agreement” in an instruction is not error.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 427, 42S; Dec. Dig. § 255.]
    3. Appeal and Error (§ 1027) — Harmless Error — Errors not Affecting Result.
    Where, in an action on vendor’s lien notes, the issue was whether the time for payment had been extended under an agreement between an agent of plaintiff and defendant, and the jury specifically found that no agreement was made, rulings involving the authority of the agent to make the agreement were immaterial.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4033; Dec. Dig. § 1027.]
    On Motion for Rehearing.
    4. Appeal and Ebeob (§ 690) — Questions Reviewable — Bill op Exceptions.
    An assignment of error complaining of the exclusion of evidence, not supported by the bill of exceptions applicable to the assignment, does not raise any question on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2897-2899, 2902-2904, 2906, 2908; Dec. Dig. § 690.]
    Appeal from District Court, Hale County; L. S. Kinder, Judge.
    Action by John W. Campfield against John J. Ellerd. From a judgment for plaintiff, defendant appeals.
    Affirmed, and motion for rehearing overruled.
    Madden, Trulove & Kimbrough, of Amarillo, and L. R. Pearson, of Plainview, for appellant Mathes & Williams and Graham & Graham, all of Plainview, for appellee.

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

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

   HENDRICKS, J.

This suit was filed by the appellee, John W. Campfield, against John J. Ellerd, the appellant, to recover in the trial court on two vendor’s lien notes amounting to $1,150 each; also, for the usual attorney's fees and foreclosure of the vendor’s lien upon the land and for which the notes were partly given. The appellant, El-lerd, admitted the execution of the notes in question, but specifically alleged that the notes had not matured at the time the suit was instituted, for the reason that an agreement had been made between him and one E. E. Winn, the alleged authorized agent of Campfield, to extend the time of payment of the notes in question until February 9, 1913, and the suit having been instituted prior to that time was premature and should be abated. The court, at the request of the appel-lee, submitted the case to the jury on special issues, and the first issue tendered by the court was as follows: “Was there an agreement between E. E. Winn and the defendant, John J. Ellerd, by which it was agreed that the payment of the notes in controversy was extended from February 9, 1912, until February 9, 1913” — the court further instructing the jury that, if they gave an affirmative answer to this question, the jury would proceed to answer further questions submitted by him; but, if they answered the first question in the negative, it would not be necessary to answer any subsequent questions embodied in the charge.

The appellant claims that this cause and the issues involved therein should not have been submitted to the jury on special issues, “because the issues of fact and of law involved in this case were not such as could be fairly and legally presented to the jury upon special issues” submitting a proposition that “the charge of the court should be submitted on special issues only when the pleadings contain several combinations of fact, each of which constitutes a cause of action or ground of defense, and is sufficiently supported by the evidence to require a charge upon which an issue has been formed.”

Appellant is attempting to apply rule 61, quoted as above, and promulgated by the Supreme Court of the state for the district and county courts, with reference to charges and instructions by those courts to juries. This rule is not intended as a limitation upon the power of the trial court and a definition of the character of case which should be submitted to the jury upon special issues. It is very plain from our statute that, upon request of any party to the suit, and at the present time, without any request, the court, upon its own motion, may submit the cause in such a manner. The appellant has not suggested in the slightest in what manner he was. injured by a submission of this cause upon special issues. In reading the brief proffered in this court for a reversal of the cause, we are unable to find any statement of the evidence of any witness that an agreement of extension in accordance with the defendant’s pleadings was ever made; and, again, the court has quite a plenary power in this respect, and, to say the least of it, it would certainly be incumbent upon appellant, in a matter of this kind, to show some deprivation of a legal right or some abuse of discretion, when, under the statute, either party requests such a submission, and the jury is so instructed; and, as a concrete proposition, we take it would be hard to show injury.

Appellant assigns as error the action of the court in submitting to the jury special issue No. 1, which we quoted above, for the reason, as indicated in his proposition, that “it is the province of the court to charge the jury on questions of law involved in the case, and all legal propositions should be defined.” And in his argument under this assignment he further says that the court does not undertake to give a legal definition of “agreement,” but leaves this question of law entirely to the jury; and that “it is well settled that questions of law, with only a few exceptions, are for the court, and all legal phrases and terms, such as ‘agreement,’ ‘negligence,’ etc., should be defined by the court in its charge, and a failure of the court to define legal phrases is error.”

Appellant has a misconception of the law upon this subject as applicable to the particular question involved, the authorities cited are not in point, and a failure of the trial court to define legal phrases or give definitions is ordinarily not error unless the party who is objecting in the appellate court to the omission of the trial court in this respect has himself requested a charge of the lower court desiring a definition of the terms used in the general charge. We thinlc this is well illustrated by the following cases: Arkansas Construction Co. v. Eugene, 20 Tex. Civ. App. 601, 50 S. W. 736; Lagow v. Grover, 77 Tex. 448, 14 S. W. 141; Texas Midland R. Co. v. Ritchey, 49 Tex. Civ. App. 409, 108 S. W. 732; Texas & Pacific R. Co. v. O’Donnell, 58 Tex. 27. The omission of the trial court to define the term “ordinary care” is not affirmative error and cannot be complained of where a special instruction defining them has not been requested. Western Union Telegraph Co. v. James, 31 Tex. Civ. App. 503, 73 S. W. 79, writ of error refused in 97 Tex. 651, 73 S. W. 79, no opinion.

The appellant in this case failed to request any definition of the trial court as to the meaning of the term “agreement,” and hence we believe is not in an attitude to complain under the decisions.

The appellant submits other assignments upon other alleged errors of the trial court, which we deem to be entirely immaterial on this appeal for the reason that when the jury specifically answered that there was not any ágreement entered into between the agent Winn and the defendant Ellerd, as to the extension of the notes, necessarily the whole defense of the appellant failed.

The succeeding questions, as to whether or not the agent had .the authority, or whether it was within the apparent scope of Winn’s authority to make the agreement, or whether the court committed error in other portions of the charge, or whether special charges submitted and refused by the trial court upon such questions were error, are clearly unavailing, for if the agreement was not made the predicate of appellant’s defense is gone. We are unable to ascertain from appellant’s brief, or from the record, that the alleged failure upon the part of the trial court to do certain things complained of, or in doing other things charged as error, affected in any respect the action of the jury in finding that an agreement was not made between Ellerd and the agent Winn; and, again, appellant’s assignments, with the statements thereunder, with reference to such other errors charged against the trial court, are quite abstract in their presentation with insufficient statements, and, as stated above, without even a presentation to this court of any testimony of any witness with reference to any part of the record that any agreement for extension of the particular indebtedness was ever made.

The appellee suggests in this case that the appeal is one for delay and requests an af-firmance of the cause with 10 per cent, damages under the statute. We have gone to the record and statement of facts in this case, upon the matter of the sincerity of this appeal, and have concluded, to affirm the ease without- the 10 per cent, damages requested.

We find no error in this record, and the judgment of the trial court is affirmed.

On Motion for Rehearing.

The appellant, Ellerd, in this cause complains that this court erred in failing to pass upon his first assignment of error, stating as one of his reasons that witness Walter Day, whose testimony was rejected by the trial court, would have testified, if permitted by the court, in substance that he had no absolute knowledge of the business relations existing between Winn and Campfield, “or that he knew in a general way that they were partners.” In referring' to the appellant’s brief on this subject, and applicable to this assignment, the statement under the assignment is as follows: “The witness Walter Day testified that he had been acquainted with the witness E. E. Winn and the plaintiff Campfield for the past five years, and that he knew in a general way the business which the said E. E. Winn looked after for the plaintiff Campfield; that he did not remember any certain transaction, but knew in a general way. Upon objection by plaintiff’s counsel, this testimony was by the court excluded from the jury. Defendant’s Bill of Exception No. 3, Tr. pp. 35, 36.”

The above statement in appellant’s brief of the offered testimony of Walter Day is a correct reflection of defendant’s bill of exception No. 3, referred to herein by appellant, and his bill of exception No. 3 has no reference whatever to any testimony of Day “that he knew in a general way that they were partners.” The statement of the testimony in bill of exception No. 3, made by appellant in his original brief, and the bill of exceptions in the transcript sustaining it, present a character of testimony we thought was plainly inadmissible and that it was unnecessary to discuss it.

In re-reading appellant’s brief especially applicable to this assignment, we do not find a single reference offered in the assignment, the proposition, the statement, or the “remarks,” of any offered testimony of Walter Day “that he knew in a general way that they (Winn and Campfield) were partners.” We find such a statement, in reading the record, in another and different bill of exceptions, which is not assigned; but we are not saying that we would consider such testimony would have effected a reversal of the case, but simply state that appellant has not complained that the court rejected such testimony, nor was it called to the attention of this court in any way, and defendant’s bill of exception No. 3 supporting the assignment does not raise such a question.

The motion for rehearing is overruled.


author: BAINEY, C. J.

text:
    TRINITY & B. V. RY. CO. v. BLACKSHEAR.
    (Court of Civil Appeals of Texas. Dallas.
    Nov. 22, 1913.
    Rehearing Denied Dec. 20, 1913.)
    1. Bailroads (§ 396) — Injuries Near Track — Negligence — Bes Ipsa Loquitur Doctrine.
    The res ipsa loquitur doctrine will raise a presumption of negligence by defendant railroad company, where plaintiff while plowing in his field about 50 feet from the track was struck by a spike “picked up” by a passing freight train and thrown with great force into plaintiff’s field.
    [Ed. Note. — For other cases, see Bailroads. Cent. Dig. §§ 1341-1343, 1357; Dec. Dig. § 396.]
    2. Bailroads (§ 364) — Injuries Near Bight oe Way — Duty oe Company.
    A railroad company was hound to operate its train so as not to interfere with plaintiff’s enjoyment of his premises near the right of way by casting missiles from the train and injuring plaintiff.
    [Ed. Note. — For other cases, see Bailroads, Cent. Dig. §§ 1252, 1253; Dec. Dig. § 364.]
    3. Damages (§ 208) — Jury Questions — Time oe Damage.
    In an action against a railroad company for injuries by being struck by a spike thrown by a passing train while plaintiff was in an adjoining field, whether plaintiff was rendered unable to sleep on his left side by reason of the injury, so as to be entitled to damages on that ground, held a jury question.
    TEd. Note — For other cases, see Damages, Cent. Dig. §§ 54, 64, 68, 132. 144, 145, 205, 220, 533, 534; bee. Dig. § 208]
    4. Appeal and Error (§ 216) — Instructions — Necessity oe Bequest.
    Any error in not limiting the recovery for loss of time to the sum alleged in the petition to have been lost was.one of omission of which defendant cannot complain, where he did not ask a special charge correcting such omission, especially where the evidence did not show that the damage for loss' of time exceeded that amount, it being unlikely that the award for that item was greater than shown by the evidence.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 627-641, 660, 662-676; Dec. Dig. § 216.]
    Appeal from District Court, Hill County, ■Horton B. Porter, Judge.
    Action by C. M. Blaekshear against the Trinity & Brazos Valley Kailway Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    N. H. Lassiter and Kobt. Harrison, both of l't. Worth, and Morrow & Morrow, of Hills-boro, for appellant. H. B. Porter and Collins, Cummings & Shurtliff, all of Hillsboro, and W. F. Bamsey and Chas. L. Black, both_ of Austin, for appellee.

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

   BAINEY, C. J.

Appellee sued appellant to recover damages for personal injuries inflicted upon him by a train throwing an iron spike and striking him in the side, breaking his ribs, causing great suffering, etc. A trial resulted in a verdict and judgment in appellee’s favor for $6,000, from which this appeal is prosecuted.

This is the second appeal in this case. On the former appeal, in which a verdict was instructed for the railroad, the judgment was reversed and cause remanded. 131 S. W. 854. The evidence on this appeal is practically the same as on the former appeal, and from which we conclude that, as appellee was plowing in his field adjacent to appellant’s right of way and about 50 feet from the railroad track, a passing freight train picked up a loose iron spike and threw it with great force into appellee’s field, which spike struck him in the side, breaking his ribs, and causing him much suffering, loss of time, etc.

The first assignment of error complains of the court’s refusal to give a peremptory charge to find for appellant. The proposition submitted under this assignment is: “Before a plaintiff can recover of a defendant in a case such as this, in order to show negligence he must prove that the injury was one which under the law the defendant must have anticipated as a result of the alleged acts of negligence.” As a test of liability under the evidence in this case, was it incumbent upon appellee to show that the accident could have been reasonably foreseen or anticipated? We think not. The rule of res ipsa loquitur applies here. As in a case where a passenger is injured from a derailment of a train at a place where the track and train are entirely under the control of the company, the presumption of negligence arises. Railway Co. v. Parks, 97 Tex. 131, 76 S. W. 740; Railway Co. v. Wood, 63 S. W. 164; Street, Per. Injuries, § 196; Railway Co. v. Troutman, 138 S. W. 427.

The appellant introduced no evidence to explain the accident, but there was evidence tending to show the condition of the track, from which the jury might legitimately infer that a loose spike was on the track and was thrown by the train. The appellee, to show liability, was not called upon to prove negligence on the part of the appellant, as the fact of its train throwing the spike or missile on the premises of appellee and injuring him made it liable for all damages' resulting, irrespective of the question of negligence. Appellee was on his own premises, and, while appellant had the right to operate its own trains along its tracks, it was legally bound to so operate them as to not interfere with appellee’s peaceful enjoyment of his premises by throwing thereon missiles which caused injury to him. Hay v. Cohoes Co., 2 N. Y. 159, 51 Am. Dec. 279; St. Peter v. Denison, 58 N. Y. 416, 17 Am. Rep. 258; Steger v. Barrett, 124 S. W. 174; Cooley on Torts (1st Ed.) 332.

The court did not err in refusing to give special charge No. 10, to the effect that the jury could not allow plaintiff damages for being unable to sleep on his left side. Plaintiff alleged and testified as to his being unable to sleep at night on his left side, .by reason of smothering spells when trying to sleep on that side. The doctor testified that Re did not think the smothering spells were produced by the injury. Under the state of the evidence, the charge ought not to 'have been given. The court had already withdrawn from the jury the evidence of smothering spells, and, as the evidence on the question of sleeping at night was conflicting, it was for the jury to determine, and it was proper for counsel to argue it to the jury.

Error is predicated upon the charge to the jury which is as follows: “If you find for plaintiff, you will find for him such an amount as you believe from the evidence will be a fair and just compensation in cash for the injuries suffered by him as a direct and proximate result of defendant’s negligence, if any negligence there was, taking into consideration only the physical and mental pain, if any, sufferéd and to be suffered by him, and the amount of time lost by him, if any, from his usual and customary vocation.” The allegations claimed in the petition for loss of time was $1,000, and appellant contends the court should have limited a recovery for loss of time to the $1,000, and, as the court did not do this, it was calculated to cause the jury to assess a much higher amount than they otherwise would have done. If this was error, it was one of omission, and appellant should have requested a special charge correcting the omission, and, not having done this, it will not be heard to complain, especially when the evidence does not show the damages for loss of time exceeded that amount. It is not probable the jury allowed damages for loss of time in a greater amount than shown by the evidence. City of Dallas v. Jones, 93 Tex. 38, 49 S. W. 577, 53 S. W. 377; Railway Co. v. Motwiller, 101 Tex. 515, 109 S. W. 918.

Appellant has presented other assignments of error on the questions of “anticipation of accident and negligence,” which, in our view of the case, do not affect the liability of the appellant, and what we have heretofore said on these points makes it needless to say more.

Complaint is made that the verdict is excessive. Prom the nature of the injury, as shown by the evidence, we are not prepared to say the jury were wrong. They had the witnesses before them, and they were in a better position to weigh the evidence than we. Their verdict is not so large as to indicate prejudice or passion, and the judgment will not be disturbed.

The judgment is affirmed.


author: REESE, J.

text:
    TEXAS & N. O. R. CO. v. CUNNIFF.
    (Court of Civil Appeals of Texas. Galveston.
    Nov. 22, 1913.
    Rehearing Denied Dec. 18, 1913.)
    Railroads (§ 443) — Killing of Stock on Track — Evidence—Sufficiency.
    In an action against a railroad company for the killing of a horse on the track, evidence ' held to sustain a finding that the horse entered on the track at a point where railroad employes, putting in a new crossing negligently left an opening in the fence, authorizing a recovery.
    [Ed. Note. — Por other cases, see Railroads, Cent. Dig. §§ 1608-1620; Dec. Dig. § 443.]
    Error to Jefferson County Court; R. “W. Wilson,vJudge.
    Action by J. P. Cunniff against the Texas & New Orleans Railroad Company. Prom a judgment for plaintiff, defendant brings error.
    Affirmed.
    Baker, Botts, Parker & Garwood, of Houston, and Hightower, Orgain & Butler, of Beaumont, for plaintiff in error. O’Fiel & O’Piel, of Beaumont, for defendant in error.

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

   REESE, J.

J. P. Cunniff sued the Texas & New Orleans Railroad Company in the justice court, to recover $150, the value of a mare alleged to have been killed by one of defendant’s trains. On trial in the justice court he recovered judgment for $100. Defendant appealed, and in the county court plaintiff recovered a like judgment, from which this appeal is prosecuted.

A gang of men were engaged in putting in a new crossing about 100 yards from appel-lee’s house. There was another crossing between a quarter and a half a mile south of this point. Appellant’s track was fenced, but while engaged in the work of putting in the new crossing the men cut an opening in the fence. Their foreman testified that this place was kept open in the daytime, but that he was always careful to have it closed at night when the men quit work, so as to prevent stock straying upon the track, and that it was so closed on the night appellee’s mare was killed. Appellee turned his mare out about 9 o’clock at night, and the next morning found her lying dead on the appellant’s track at the old crossing aforesaid. She was lying in the culvert or stock gap on the south side of the crossing, and up against the south wall of this stock gap. She had a gash in her neck from near the shoulder to the ear. Appellee testified that he did not know whether any bones were broken or not. It is appellant’s contention that the mare was struck on this crossing, and, as no negligence was shown in the operation of the train, appellant was not liable. Appellee contends that the fence where the men were working on the new crossing was negligently left open, and that his mare strayed onto the track through this opening, and that she became frightened by a train approaching from the north, and ran down the track to the north stock gap at the south crossing, where she’was caught by the engine and carried across this crossing to the place where she was found, killing'her. He testified that his mare was shod, and that the next morning he traced the tracks of a shod horse onto the track at the point where the new crossing was being put in and down the track to tbe stock guard, at and north of the south crossing, where the tracks stopped. There were no signs of blood or hair at this point on the track, or of the mare having been dragged. If the mare was struck at this point by a train running even at ordinarily high speed, there is nothing unreasonable in the idea that she should be taken up by the cowcatcher of the engine and carried across the stock guard and the 30-foot roadway into the stock guard, where she was found. And it is not necessarily inconsistent with this that no signs of blood or hair, or other signs that the mare was.struck at that point, were found on the track. Appellant lays much stress upon the fact that no bones were broken, which it is said was testified to by appellee. He did not so testify, but only that he did not see any broken bones. But it is reasonably certain that the mare was struck by an engine running south. Appellant contends She was struck on the crossing, and thrown into the stock guard, where she was found. That this could be easily done without breaking any bones, while it would be impossible that the mare should have been struck at the north cattle guard with such force as to carry her across the 30-foot roadway without breaking any bones, as contended by appellant, appears to us to be, in logic, a non sequitur. On the whole the evidence was sufficient to authorize the court’s finding of fact that the mare entered upon the track at the point where the men were putting in the new crossing through an opening negligently left in the fence. This is the only question presented by the appeal.

The judgment is affirmed.

Affirmed.


author: TALIAFERRO, J.

text:
    RISINGER v. SULLIVAN.
    (Court of Civil Appeals of Texas. San Antonio.
    Dec. 3, 1913.)
    1. Appeal and Error (§ 742) — Assignment of Error— Sufficiency.
    ' An assignment of error complaining of the exclusion of evidence will be overruled, where the statement of facts does not contain that part of the evidence, and where the judge’s qualification of the bill of exceptions shows that that part was excluded.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    2. Trial (§ 229) — Instructions—Undue Emphasis of Facts.
    Where the evidence is so conflicting as to authorize the jury to find for either party, instructions so emphasizing and repeating the theory of plaintiff’s cause that they amount to a peremptory instruction for him are erroneous.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 513; Dec. Dig. § 229.]
    Appeal from Jim Wells County Court; W. R. Perkins, Judge.
    Action by J. E. Sullivan against William Risinger. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    L. Broeter, of Alice, and C. A. Davies, of San Antonio, for appellant. B. D. Tarlton, Jr., of Beeville, for appellee.

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

   TALIAFERRO, J.

This was a suit -by J. E. Sullivan, appellee, against William Ris-' inger, appellant, for a mule. It was alleged that on November 1, 1912, appellee was in possession of the mule, and that upon that day appellant wrongfully took it from him, and refused to surrender it to him. Appellant claimed the mule as his own. The evidence was voluminous and conflicting. The jury might have found in favor of either party, with ample evidence to support the verdict. They did find in favor of appellee, Sullivan, and the court adjudged the mule to him.

There is no merit in appellant’s first assignment of error. The statement of facts does not contain the part of the testimony to which the assignment is directed, and the judge’s qualification of the bill of exceptions shows that that part of the evidence was excluded. The assignment is overruled.

The second, third, fourth, and fifth assignments of error are sustained. They assail the court’s general charge to the jury. We have examined the charge, and find that it so emphasizes and repeats the theory of the plaintiff’s cause that it amounts to a peremptory instruction for the plaintiff.

The other assignments of error complain of the court’s refusal to give certain special charges requested by appellant. Upon another trial we have no doubt a more maturely prepared charge will be given to the jury, and we deem it unnecessary, if proper, to further discuss the questions which bear upon issues raised in the case, and the judgment will, without further discussion, be reversed, and the cause remanded.


author: LEVY, J.

text:
    TREADWELL et al. v. WALKER COUNTY LUMBER CO.
    (Court of Civil Appeals of Texas. Texarkana.
    Dec. 4, 1913.)
    1. Appeal and Error (§ 1027) — Harmless Error — Errors Not Affecting Result.
    Where, in trespass to try title against a husband and wife, who claimed the property as the wife’s separate property, a judgment for plaintiff involved only a finding that the property was community property, the error, if any, in holding that when property comes to a wife, so as to make it her separate property, limitations will not. run in her favor, was not prejudicial.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4033; Dec. Dig. § 1027.]
    2. Husband and Wife (§ 250) — Community Property — What Constitutes.
    Where one entered on land as a naked trespasser, and occupied it for four, or five years, and then without any conveyance gave the property to a married daughter, who, with her husband, remained in possession long enough to establish title by adverse possession, the property was acquired after, the daughter’s marriage, and was community property.
    [Ed. Note. — For other cases, see Husband- and Wife, Cent. Dig. § 893; Dec. Dig. § 259.] 3. Judgment (§ 693) — Conclusiveness— Paeties Concluded.
    A judgment for plaintiff, in trespass to try title against a husband, is conclusive on the rights of the wife, where the property was community property.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 1216; Dec. Dig. § 693.]
    Appeal from District Court, San Jacinto County; L. B. Hightower, Judge.
    Action by the Walker County Lumber Company against Horace Treadwell and another. From a judgment for plaintiff, defendants appeal.
    Affirmed.
    Wm. McMurrey, of Cold Springs, for appellants. Dean, Humphrey & Powell, of Huntsville, for appellee.

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

   LEVY, J.

The action was brought by ap-pellee against the appellants in trespass to try title to the land described in the petition. Appellants pleaded not guilty, and answered, claiming the land as the separate property of Polly Treadwell, wife of Horace Treadwell, and acquired by the ten-year statute of limitation. In a trial-to the court judgment was entered for the appellee. In the trial of the case it was agreed that ap-pellee had legal title to the land unless divested of the same by appellants’ plea of limitation.

It appears from the evidence that in 1873 Polly Treadwell, then a woman of legal age and single, moved with her father and his family onto the land in suit. Her father built a house on the land, and lived in it with the family, cleared a field, and cultivated it, and made claim of ownership to all the land in suit. Polly Treadwell worked with her father in'making the improvements on the place. The original entry on the land was as naked trespassers. The father lived on the land with his family between four and five years, then decided to move off and live on another place, and abandoned the place in suit. Before the father left the place Polly Treadwell was married on the place to Horace Treadwell, and has been his wife all the time since, and they together continued the same as before the time the father left to live on the land, and have since used, cultivated, and enjoyed it without being disturbed. According to the testimony of Horace Treawell, husband of Polly, he does not make any claim, and had never made any claim, of interest in the land or to it. The appellee’s vendor sued Horace Treadwell in trespass to try title to the land, and on April 21, 1898, an interlocutory judgment by default was entered against Horace Treadwell for all the land, and a final judgment entered in the case in May, 1901. This final judgment is existing and not appealed from.

The present suit was filed by appellee against appellants August 25, 1910. The entire testimony of Polly Treadwell, in support of her claim of separate property, is as follows: “I got that land from my father. He moved off, and he gave it to me. He went back to the plantation. I was grown when my father commenced claiming that land. I helped to clear it. As near as I can get at it, my father stayed there on that place five years, and then went back to the plantation. If I make no mistake, it was four or five years. Then I just stayed there. I was married before my father left. I was married to Horace Treadwell, and have been his wife all the time. We have never been separated. Horace never claimed the land. He did not claim it. It was just my claim. My father never gave me any deed to it. He just turned me over the improvements and moved off.”

The first assignment of error reads: “The court erred in holding that when property comes to the wife in such a way as to make it her separate property that limitation will not run in her favor.” The assignment, as we interpret it, merely presents the point that the court erred as a matter of law in ruling that the wife cannot avail herself of the statutes of limitation as to her separate property. As we understand the record before us, there is involved in the judgment of the court the findings only that the property in controversy was community property, if any title ever existed, of Horace and Polly Treadwell, and that the final judgment of 1901 against the husband divested all such title to the land and placed it in appellee’s vendor, and that ten years’ adverse possession on the part of appellants since that judgment had not elapsed before the instant suit. Therefore, in view of the record, it could not be said, we think, that the court held as a matter of law that the statute of limitation would not' run in favor of separate property of the wife.

But if the assignment by intendment presents the point that under the facts of this case the property was the separate property of the wife, even then we think the judgment of the court was correct, and the assignment should be overruled. It affirmatively appears that Polly Treadwell predicates the commencing of her right to the land as separate property at a time after her marriage with Horace Treadwell, if force be given to her statement, as the court was authorized to do, that she “got that land from my father.” So the fact is established that Polly Treadwell’s “claim,” if any, to the land, commenced and arose during coverture. But in this connection it appears that she predicates • no right under any conveyance from her father, and it further appears that the father had only adversely occupied the land between four and five years, with entry thereon only as a naked trespasser, and that he was intending at the time to voluntarily abandon the premises and his adverse possession. Under such circumstances the father had no legal or equitable right in or claim to the land. And in the absence of a conveyance, which she says was not given her, there is no legal basis to enforce or predicate any distinct legal claim or equitable right under the father. It is quite well understood that a conveyance is necessary to pass interest in land to another; and in legal force and effect there is not founded, under the facts of this ease, any ownership by gift or acquisition for value, such as to make the title separate property, upon the bare statement that her father “gave her the land.”- And if the contention could be made that her father gave to her such possession as he had in consideration of her former services in helping him clear the land, and that she entered the possession under such circumstances, and this would give Polly an equitable claim to the land in controversy as separate property, it must be said that the court was warranted in finding that such services were otherwise given, and that no such consideration entered the father’s verbal declaration to the daughter; and in support of the court’s judgment we must so .hold.

Consequently on the record it must be said, in support of the court’s findings, as involved in the judgment, that any ownership or claim on the part of Polly Treadwell commenced after coverture, and rested in and was referable only to her adverse possession, commenced when her father abandoned his adverse possession to her, and for ten years thereafter during her coverture. The effect of the facts is to “acquire” the property after the expiration of the full ten-year period of limitation, and not before. And, as provided by statutes, if either the husband or wife “acquire” property after marriage, it is common to both. The status of the property was that of community property, as ruled by the court, because title to the property was not “acquired” under the statutes until the expiration of the full period of limitation. Sauvage v. Wauhop, 143 S. W. 259. And the conclusion of the court that the legal effect of the judgment in 1901 against the husband was to conclude othe rights of the community was correct.

The judgment is affirmed.


author: HUFF, C. J.

text:
    BARTELDES SEED CO. v. BENNETT-SIMS MILL & ELEVATOR CO.
    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 29, 1913.)
    1. Sames (§ 36) — Offer—Mistake.
    The rule that when a mistake is not mutual courts will not relieve the party making it against his own negligence or inattention does not apply to a mistake in an offer to sell merchandise, where the party accepting the offer knows of the mistake when he accepts it, and seeks to reap a benefit from the mistake, to the injury of the person making the offer.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 63, 64; Dec. Dig. § 36.]
    2. Sales (§ 36) — Offer and Acceptance-Mistake.
    At a time when the market price of millet seed was $2.35 per hundredweight, defendant wrote plaintiff, offering to sell between 700 and 800 bushel at $1.35 per hundredweight, and plaintiff, immediately on receiving the letter, wired a reply; “We accept your letter seventeenth. Ship quick.” The price quoted was a clerical error, and on discovery defendants refused to ship. Both parties were in the wholesale and retail grain and seed business, and knew the market value of the seed at the time the offer and acceptance were made. Held, that there was no meeting of minds, and plaintiff was not entitled to recover for breach of contract.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 63, 64; Dec. Dig. 8 36.]
    3. Appeal and Error (§ 926) — Rulings on Evidence — Trial to Court.
    Where witnesses testified to the market value of millet seed on a trial to the court, after having qualified themselves by proof that they kept up with the markets and received reports and cards from various dealers in different parts of the country, it would be presumed that letters and cards showing the market price of such seed were considered by the court, not as. evidence of market value, but only as bearing on the weight of the testimony of the witnesses, and hence their admission was not error.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1279. 2899, 3729, 3730, 3735-3747; Dec. Dig. § 926.]
    Appeal from Donley County Court; J. C. Killough, Judge.
    Action by the Barteldes Seed Company against the Bennett-Sims Mill & Elevator Company. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    H. B. White, of Clarendon, for appellant. A. T. Cole, of Clarendon, for appellee.

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

   HUFF, C. J.

The appellant, the Barteldes Seed Company, brought suit in the county court of Donley county, against the appellee, Bennett-Sims Mill & Elevator Company, for damages on an alleged breach of contract for the sum of $434, in refusing to deliver 35,-000 pounds, of German millet seed, in accordance with the terms theretofore entered into between the parties on April 19, 1912. The appellee denied liability, on the ground that in quoting the price of the seed they made a clerical error in their letter of $1 per hundredweight, which fact was known to appellant at the time it accepted the offer to sell. On April 17, 1912, the appellee wrote the following letter to appellant: “Under separate cover we are mailing you sample of German millet seed. We offer you delivered Oklahoma City $1.35 per cwt. in TO oz. bags. There is 7 or 800 bu. of this lot. We want it to all go together.” This letter appears to have been received by the appellant on the morning of tile 19th of April, 1912, and at 8:20 a. m. that day they sent to appellee the following telegram: “We accept your letter seventeenth. Ship quick.” The seed was not shipped. The appellee’s evidence shows that the price quoted was by clerical error, made to read “$1.35 per cwt.” instead of “$2.35 per cwt.,” the then market price of millet seed per hundredweight. The trial court found as a fact that appellant was in a position to know, and did know, that the market price of the millet was $2.35 per hundredweight; that the appellee made a mistake in quoting the price, and intended to offer the sale of the seed at $2.35, instead of $1.35, per hundredweight, and by the judgment we must also impute to the finding of the court that the appellant knew that the ap-pellee had made the mistake in quoting the price. The evidence introduced by appellant from its employs, is that during the month of April—up to the 17th of the month—the market price of that class of millet was from $1.10 to $1.60 per hundredweight; that oil the 19th the price advanced $1.24 per hundredweight and he further testified that after this sudden rise the price remained about the same for some days thereafter. The retail price obtained by appellant on the 17th, the date of the letter, for seed, in lots weighing from 100 to 1,000 pounds, in Oklahoma City, ranged from $2.40 to $2.65 per hundredweight, and from the 20th to 22d of April ranged from $2.50 to $3.55 per hundredweight. Both parties were in the wholesale and retail grain and seed business, and their witnesses testified they knew the market value of the seed on the 17th of April. The evidence of appelle.e shows it was $2.35 per hundredweight. We think the evidence sufficient to show that the market price was, on the 17th of April, $2.35 per hundredweight, and that appellant knew that fact when it wired the acceptance, and must have known that appel-lee’s quotation of the price was a clerical error.

Ordinarily, when the mistake is not mutual, courts will not relieve the party making it against his own negligence or inattention; but we think a different rule should apply when the evidence shows that the party .accepting the mistaken offer knows of the mistake when he accepted it, and that he should not reap the benefit of the mistake to the evident injury of the other. We think fair dealing and good conscience should require an opportunity to correct the error, before trying to found a binding contract on it. Dorsey Printing Co. v. Gainesville Cotton O. M. & G. Co., 25 Tex. Civ. App. 456, 61 S. W. 556; Cyc. vol. 9, 396, and note 87; Page on Contracts, vol. 1, p. 144, § 86, and authorities in note; Everson v. International Grain Co., 65 Vt. 658, 27 Atl. 320; Shelton Co. v. Ellis, 70 Ga. 297; Hume v. U. S., 132 U. S. 406, 10 Sup. Ct 134, 33 L. Ed. 393.

The evidence in this case is that both parties knew the market value of the millet seed on the 17th of April, 1912. Upon receiving a letter from a dealer in that commodity, appellant must have known that $1 per hundredweight less than the market value was a mistake. That they did is evidenced by the telegram to “Ship quick.” It did not wire back that “Tour $1.35 per cwt. offer is accepted.” Appellee thought it had quoted the market price in the letter—$2.35. We think from the evidence it is manifest that appellant knew a mistake had been made, and sought to take advantage of the mistake by an immediate acceptance and quick shipment. The haste in this matter to procure the seed at $1 less than their market value, under all the circumstances of the case, amounted to a fraud. The Georgia court said, in Shelton v. Ellis, supra: “What is a mistake on one side and a fraud on the other is as much the subject of correction as if it were a mistake on both sides.” Judge Puller said in Hume v. U. S., supra: “If the claimant knew that a clerical error had been committed, of which the agent of the government was ignorant, and deliberately intended to take advantage of the error to obtain the execution of a contract for the payment of so grossly unconscionable a price, or if the facts were such that he must * * * have known that their action, if understandingly taken, would be impalpable dereliction of their duty to their principal, and, notwithstanding, sought to profit by it, the character of the fraud, so far as the claimant is concerned, is not changed by the fact that such action was the result of the negligence or mistake of the government’s agents, untainted by moral turpitude on their part.” True, appellant sought to prove that the market value of the seed was only about 25 cents per hundredweight in Oklahoma City on that date more than the price demanded, but from an examination of that testimony, we think the trial court was amply justified in disregarding this part of the evidence. The evidence clearly, to our minds, shows this was not true. At any rate, the trial court has found differently, and we think the evidence supports the judgment.

The witnesses of appellee testified they knew the market value of the seed at that time, and in stating how they knew it in addition to the evidence shown—they were experienced dealers in products of that kind— they show that they kept up with the markets; that they received reports and cards from various dealers in different parts of the country. When they stated they knew the market price, they could testify what it was, and the fact that they gave the source of their information upon which they based their opinion as to the market only reaches the weight to be given to their testimony. These specified letters, cards, and the like perhaps were not admissible as testimony showing the market; but, as the case was tried before the court without the intervention of a jury, we will not presume the’court considered them as testimony of the market value, but only that be considered the same in weighing the testimony of the witnesses who testified to what the market value was. The appellant’s witnesses show their opinion of the market was also based upon reports. Ry. Co. v. Scott, 86 S. W. 1065; Ry. Co. v. Bennett, 46 Tex. Civ. App. 379, 103 S. W. 1115.

We find no error in the judgment o'f the court, and the case is affirmed.