author: CONLEX, C. J.

text:
    GULF, C. & S. F. R. CO. v. PRATT.
    (No. 35.)

    (Court of Civil Appeals of Texas. Beaumont.
    Feb. 3, 1916.
    Rehearing Denied Feb. 24, 1916.)
    1. Trover and Conversion <§=1 — “Conversion’ ’ — Definition.
    Conversion is any unauthorized act of dominion or ownership which deprives a man of his personal property permanently or for a definite length of time.
    [Ed. Note. — For other cases, see Trover and Conversion, Cent. Dig. §§ 1, 2; Dec. Dig. <3=1.
    For other definitions, see Words and Phrases, First and Second Series, Conversion.]
    2. Trover and Conversion <3=22 — Taking— Assent or Ratification.
    Where the owner expressly or impliedly assents to or ratifies, the taking, use, or disposition of his property, he cannot recover for conversion thereof.
    [Ed. Note. — For other cases, see Trover and Conversion, Cent. Dig. §§ 152-162, 167-169; Dec. Dig. <§=22.]
    3. Trover and Conversion <3=1 — “Conversion” — Intent—Positive Act.
    To constitute a conversion there must not only be an intent to convert, but such intent must be accompanied by a 'positive act of conversion.
    [Ed. Note. — For other eases, see Trover and Conversion, Cent. Dig. §§ 1, 2; Dec. Dig. <3=1.]
    4. Trover and Conversion <3=35 — Unauthorized Taking — Intent—Presumption.
    Where an act of conversion is unauthorized by the owner, the intent to convert will be conclusively presumed.
    [Ed. Note. — For other cases, see Trover and Conversion, Cent. Dig. §§ 215, 216; Dec. Dig. <§=35.]
    5. Trover and Conversion <3=7 — Train Damaging Automobile — Repairing and Holding for Owner.
    Plaintiff’s automobile was struck on a highway crossing by defendant’s train. Plaintiff left the automobile on the right of way for several days refusing to remove it. Thereafter the company’s claim agent consulted plaintiff’s attorney as to the disposition of the car, suggesting that the company be allowed to take it to another town for repair, and was advised that he would have to “back his own judgment.” The car was taken and repaired as suggested, and was afterwards held for the owner’s instructions with notice to the owner. The company held the automobile in storage for some time while futile negotiations for settlement took place, which ended with the bringing of this action in conversion. Seld that, since defendant attempted to exercise no right of ownership over the car, and did not take it without the owner’s consent, defendant was not guilty of conversion.
    [Ed. Note. — For other cases, see Trover and Conversion, Cent. Dig. §§ 51-57; Dec. Dig. <3=7.]
    6. Trover and Conversion <3=10 — Automobile Damaged by Train — Holding for Owner — Illegal Use or Abuse.
    The fact that, while defendant held such car in storage awaiting plaintiff’s order for disposition, certain persons who were unauthorized tw the company took the automobile out and slightly damaged it, whereupon the defendant repaired the damage and immediately removed the automobile to its roundhouse, where it was locked up, was not such an illegal use or abuse ■of the automobile as constituted a conversion by ■defendant.
    [Ed. Note. — For other cases, see Trover and Conversion, Cent. Dig. §§ 84-94; Dec. Dig. ■<S=^>10.]
    Appeal from District Court, Sabine County; A. E. Davis, Judge.
    Action by G. E. Pratt against the Gulf, Colorado & Santa F6 Railroad Company. Judgment for plaintiff, and defendant appeals.
    Reversed.
    F. J. & C. T. Duff, of Beaumont, and Hamilton & Hamilton, of Hemphill, for appellant. W. F. Goodrich and J. W. Minton, both of Hemphill, for appellee.

      Application for writ of error pending in Supreme Court.

   CONLEX, C. J.

On August 81, 1914, G. E. Pratt, appellee, filed a petition in the district court of Sabine county, Tex., against the Gulf, Colorado & Santa Fé Railroad Company, alleging a cause of action substantially as follows: That on or about August 31, 1913, the appellee owned a certain Studebaker automobile, being a seven-passenger, 35 horse power car, 1913 model, worth $1,171.50; that on or about the 1st day of August, 1913, the appellant, Gulf, Colorado & Santa F5 Railroad Company, took possession of said automobile, and converted the same to its own use and benefit, and removed the same out of Sabine county, and has continuously had same in its possession and under its dominion and control; that said conversion was without appellee’s •consent, and appellant took possession of said automobile at Bronson, Tex., and transported it to Beaumont. Appellee prayed for damages in the sum of $1,171.50.

The appellant answered by general demurrer, and specially denied that it was guilty of conversion, and by special answer it alleged that it, through no negligence or fault on its part, damaged said automobile belonging to appellee; that for the purpose of repairing said car it removed the same to Beaumont, where it had an expert mechanic to repair the ear, and put it in good condition; that since said car has been repaired it has been tendered back to the appellee, and request made that appellee advise it what disposition he wanted made of the same, but that appellee had refused to accept said car or notify appellant what he wished done with it.

A jury was waived, and matters of fact and law were submitted to the court. The court, on the 17th of April, 1915, rendered judgment in favor of appellee for the full amount sued for, to wit, $1,171.50, with interest at 6 per cent, per annum from August 1, 1913, from which judgment appellant has ■duly perfected an appeal to this court.

Under the first assignment of error appellant contends, in substance, that the evidence is undisputed that at the time the appellant herein took said automobile at Bronson and removed it to Beaumont its .purpose in taking the automobile was to have same repaired; the evidence further showing that the appellee knew that the appellant was going to remove the automobile from Bronson to Beaumont for such purposes, and acquiesced and consented to said removal, and that therefore the court erred in rendering judgment in favor of plaintiff in a suit for conversion.

“Conversion” is defined to be “any unauthorized act which deprives a man of his property permanently or for a definite length of time.” France v. Gibson, 101 S. W. 537; Union Stockyards et al. v. Mallory et al., 157 Ill. 554, 41 N. E. 888, 48 Am. St. Rep. 341.

The legal wrong denominated a “conversion” is:

“Any unauthorized act of dominion or ownership exercised by one person over personal property belonging to another. * * * Acts of conversion have been classified as follows; (1) A taking from the owner without consent; (2) an unwarranted assumption of ownership; (3) an illegal use or abuse of the- chattel; and (4) a wrongful detention after demand. It is a well-settled rule that, if the owner expressly or impliedly assents to or ratifies the taking, use, or disposition of his property, he cannot recover for conversion thereof. * * * ”

There must not only be an intent to convert, but it must be accompanied by positive act of conversion. However, if the act was unauthorized by the owner, an intent to convert will be conclusively presumed. 38 Cyc. 2095-2010.

An analysis of the evidence in the case justifies the following conclusions, which are practically undisputed: On July 18, 1913, the railroad company at Bronson, Tex., damaged appellee’s automobile, which at the time was being operated by a son of the appellee. The accident happened on the company’s right of way over one of the public crossings at Bronson. After the accident the person in charge of the car left it on the right of way, where it remained for three or four days without the appellee or any one for him looking out for it. Subsequently one of appellee’s sons went to see the car at Bronson, and refused to have anything to do with it. The car was thereafter taken up by the railroad company and removed from the right of way to shelter. On or about the 1st of August the claim agent for the railroad company went to Bronson to inquire into the matter of the accident, and, thinking and being advised that the appellee was represented by counsel at Hemphill, he called up over long-distance telephone the person to whom he was directed as counsel, and had a conversation with him as to the measure of damages to the car, and what was the most advisable thing to do. The claim agent stated that there was no repair shop at Bronson, where the car could be repaired, and that he thought it would be well to take the automobile to Beaumont to have the damages repaired, and then return it to the owner. The lawyer with whom the conversation was had advised the claim agent that he had no authority from Mr. Pratt to act in the matter, but that he would call him (Mr. Pratt) on the phone, which he did. Mr. Pratt was then advised of the suggestion made by the claim agent, but refused to tell him what to do with the car, saying, in substance, that he would have to back his own judgment. It is clear that Mr. Pratt knew the intention and purpose of the claim agent to remove the car to Beaumont for repairs, and he made no protest, nor did he by word or act disapprove the suggestion. The car was taken to Beaumont and repaired. After this was done, one of appellee’s sons, in response to a letter from the claim agent, went to Beaumont and inspected the automobile. The repairs on the car seemed to have been satisfactorily done, and the matter of settlement was then the only thing to be adjusted. Considerable correspondence in the meantime had passed between the claim agent and counsel, who, the claim agent thought, represented the appellee. The sum and substance of the correspondence was repeated requests upon the part of the claim agent for directions as to how to dispose of the car; the claim agent insisting that he was ready to deliver the same back to the owner; that the car had been repaired, and was in good shape. The letters also show that, in addition to placing the car back in good repair, the appellee desired a large sum for damages besides, ranging from §1,000 to §500. The claim agent would not agree to the payment of any such damages, and thus the matter stood when appellee’s son came to Beaumont. Upon Ms arrival here there was some negotiation between the claim agent and appellee’s son as to the adjustment of damages claimed by the appellee, but the claim agent insisted that the final adjustment of the entire matter would have to be done through counsel, who, he thought, represented the appellee. Other letters then passed between counsel for appellee and the claim agent on the subject of the delivery of the car generally, and the amotmt of damages to be paid by the company. No settlement was reached by the parties, and this suit was then filed for conversion.

IVe are unable to see any element of conversion in this case. The railroad company at no time undertook to exercise any right of ownership over the automobile. The car was not taken from the owner without his consent. The evidence shows that it was abandoned on the right of way by the owner and by appellee’s son. The appellee knew that the car would be removed to Beaumont for repairs, and he made no protest, nor did he signify any dissent thereto.

There is some evidence in the record which shows that while the car was in storage in the garage at Beaumont on two occasions some person or persons, who were unauthorized and without the consent of the claim agent, who had the car under his supervision and control, took it out, and that it was slightly damaged by reason thereof. When this matter was discovered, the damages were repaired, and the car immediately removed to the roundhouse of the appellant, where the wheels were taken off, and the car locked up, so as to avoid repetitions of such occurrences. Certainly, under such circumstances, we would not be warranted in saying that this was such illegal use or abuse of the chattel as constituted an act of conversion.

If a person is advised by one that his property is going to be taken for the purpose of doing something to it of benefit to the owner, that is, to have' it repaired, and he does not object to nor forbid the same being done, he certainly acquiesces in such taking, and cannot base an action of conversion alone on such circumstances.

There is no evidence in the record of any wrongful detention after demand made for the car. As a matter of fact, there was no demand made for the return of the car, but the evidence, on the other hand, shows that appellant was insisting that it be permitted to return the car to the owner, and his refusal to accept it; he in turn demanding a large sum of money in addition to the return of the car, and refusing to accept the car unless such money was paid. We are therefore of opinion that this assignment of error should be sustained.

The disposition of this cause makes it unnecessary to consider the other assignments of error.

Judgment will therefore be reversed, and here rendered for appellant; and it is so ordered.
      <g=}Por other oases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: RICE, J.

license: Public Domain

text:
    BASSEL, Mayor, et al. v. SHANKLIN et al.
    (No. 5572.)
    (Court of Civil Appeals of Texas. Austin.
    Jan. 19, 1916.)
    1. Municipal Cobpobations <®=3>48 — Charter Elections — Contest—Notice.
    The giving of notice of contest stating the ground thereof, required by Vernon’s Sayles’ Ann. Civ. St. 1914, art. S051, in case of contest of election to a county office, is essential to jurisdiction in a contest of an election for acceptance of a city charter; article 3077 authorizing contest of an election held for any other purpose than election of an officer, to be had in the same manner and under the same rules, as far as applicable, as are prescribed for contest of election for a county office; and article 307S providing that in case of a contest of such a city election, the officer declaring its result shall be made contestee, and served with notice.
    [Ed. Note. — For other eases, see Municipal Corporations, Cent. Dig. §§ 127, 128, 130-133: Dec. Dig. <§=^48.]
    2. Constitutional Law <S^o29 — Sele-Exe-cuting Pkovisions — Contested Elections.
    Const, art. 5, § 8, as amended in 1891, giving district courts jurisdiction to try contested! elections is not self-executing.
    [Ed. Note. — Eor other cases, see Constitutional Law, Cent. Dig. § 32; Dec. Dig. <®=o29.]

      3. Elections <S=>269 — Contest—Procedure.
    A contest of election is not a civil suit, and so cannot be tried by methods prescribed therefor, but must proceed according to statutory provisions authorizing it.
    [Ed. Note. — For other cases, see Elections, Cent. Dig. §§ 245, 246; Dec. Dig. ⅞=269.]
    4. Elections ⅞=271 — Contests—Grounds.
    An election cannot be contested on the ground that the law authorizing holding thereof was void, but only for some reason showing it was not properly ordered or fairly conducted, such as failure to give notice, or 'that illegal votes were cast, or some other matter that would impeach the fairness of the result.
    [Ed. Note. — For other cases, see Elections, Cent. Dig. § 248; Dee. Dig. <§=271.]
    5. Injunction ®cr>8()— Municipal Corporations <®=48 — Quo Warranto <S=8 — Void Charter Election — Remedy.
    If an election for acceptance of a city charter is void for failure of the council to provide by ordinance for submission of the question whether a commission shall be chosen to frame a new charter, providing for the selection by the voters of a committee to prepare the same, a contest of the election is unnecessary; injunction to prevent enforcement of the charter, or quo warranto against officers holding thereunder being a proper remedy.
    [Ed. _Note. — For other .cases., see Injunction, Cent. Dig. § 151; Dec. Dig. <©=>80; Municipal Corporations, Cent. Dig. §§ 127, 128, 130-133; Dec. Dig. <®=>48; Quo Warranto, Cent. Dig. § 9; Dec. Dig. <§=S.]
    Appeal from District Court, Bell County; W. W. Hair, Special Judge.
    Proceeding by M. H. Shanklin and others against Neal Bassel, Mayor, and others, to contest an election on a city charter. From an ¡adverse judgment, defendants appeal.
    Reversed and remanded.
    J. L. Beringer and A. L. Curtis, both of Belton, Winbourn Pearce, of Temple, and J. B. Hubbard, of Belton, for appellants. G. M. Felts, of Belton, and Marshall Surratt, of Waco, for appellees.
   RICE, J.

The city council of the city of Belton ordered an election to determine whether said city should accept a new charter which had been theretofore prepared by a committee selected by the council. This election was held in accordance with said order, and resulted, as declared by- said body, in favor,of its adoption, and an order was entered by the city council so declaring the result of such election; and this suit was brought by appellee Sbanklin and 35 other qualified voters of said city to contest said election, assailing its validity on the ground, among others, that said council improperly ordered said election, in that it appointed a committee to draft the proposed charter, whereas it is contended that the selection of said committee should have been left to the qualified voters of said municipality. (2) That the question as to whether or not a commission should be chosen to frame a new charter was not left to the vote of the people, but was determined by tbe council itself. (3) That such proposed charter was not submitted to be voted on by sections, so that its provisions could be separately passed on, but was submitted as a whole; and because the city council did not cause the city clerk or secretary to mail a copy of the proposed charter to each qualified voter in the city not less than 30 days prior to the election; and also on the ground of fraud in conducting the election.

Appellants in their answer admitted the truth of the above allegations relating to the method adopted in ordering said election and the selection of a commission to draft said charter, and asserted that, notwithstanding they had failed to follow the procedure as contemplated by chapter 147, Session Acts of the 33d Legislature, p. 307 (Vernon’s Sayles’ Ann. Oiv. St. 19X4, arts. 1096a-1096i), still that said election was held and fairly conducted, and the majority of the votes cast were in favor of such charter, and hence it became and was effective.

To which answer asserting the validity of said election as ordered, appellees addressed an exception, to the effect that it constituted no defense to plaintiffs’ cause of action; which being sustained, and appellants declining to amend, the court directed the jury to return a verdict in favor of appellees, which was done, and judgment was rendered declaring said charter illegal and void, from which this appeal is prosecuted.

In the view we take of the case it will not be necessary, we think, to discuss any of the assignments of error presented in behalf of appellants, because we have concluded that the trial court had no jurisdiction of the case, as the record is now presented. On inspection of the petition we find no allegation showing that notice of contest was served upon appellants, which was necessary in order to confer jurisdiction. By article 3077, title 49, chapter 8, of Vernon’s Sayles’ Oiv. Stats, vol. 2, it is provided that:

“If the contest be for the validity of an election held for any other purpose than the election of an officer or officers in any county or part of a county or precinct of a county, or in any incorporated city, town or village, any residont of such county, precinct, city, town or village, or any number of such residents, may contest such election in the district court of such county in the same manner and under the same rules, as far as applicable, as are prescribed in this chapter for contesting the validity of an election for a county office.”

The succeeding article in case of contest of city elections requires, among other things, that:

“The mayor of the city, town or village, or the officer who declared the official result of said election, or one of them, as the case may be, shall be made the contestee, and shall be served with notice and statement, and shall file his reply thereto as in the case of a contes’t for office,” etc.

Article 3051, Id., provides that:

“Any person intending to contest the election of any one holding a certificate of election as a member of the Legislature, or for any office mentioned in this law, shall, within SO days after the return day of election, give him a notice thereof in writing and deliver to him, his agent or attorney, a written statement of the ground on which such contestant relies to sustain such contest,” etc.

In Lindsey v. Luckett, 20 Tex. 516, Mr. Justice Roberts held, as shown by the syllabus, that:

“The notice and statement of the grounds on which a party intends to contest the election of any one holding a certificate of election to a county office, which are required to be served on the latter within ten days after return day, are the predicate upon which the power of the county court is set in motion, and without which, within the time prescribed, that court has no jurisdiction to investigate the validity or event of such election.”

Again, our Supreme Court, through Mr. Justice Gould, in Wright v. Fawcett, 42 Tex. 203, in construing a similar statute to the one here involved, declared that, in order to contest an election the contestant must comply with the requisites of the statute on the subject, saying that:

“The law has provided in what way elections may be contested, with the evident design that no other shall be pursued. The jurisdiction of the district court was dependent upon compliance with the prerequisites prescribed by the law; and as the record does not show such compliance, we think the case was correctly dismissed.”

Mr. Justice Bookout in Cauthron v. Murphy, 130 S. W. 671 (which was a suit brought to contest a stock law election, where the petition failed to show that the contestant had given the statutory notice of contest), held that the district court did not err in dismissing the case for the want of jurisdiction, referring with approval to Lindsey v. Luckett and Wright v. Fawcett, supra. In 15 Cyc. pp. 398, 399, it is said:

“Notice in some form, setting forth one or more of the statutory grounds of contest is jurisdictional and is absolutely essential to the validity of the proceedings,” specially referring to Taliaferro v. Lee, 97 Ala. 92, 13 South. 125, sustaining this view.

It is true that article 5, § 8, of the Constitution, as amended in 1891, gives district courts jurisdiction to try- contested elections. This clause of the Constitution, however, 'in Cauthron v. Murphy, supra, was held not to be self-executing, which holding we think is correct. A contested election is not a civil suit and cannot therefore be tried by methods prescribed in such caseg, but must proceed in conformity with the statutory provisions authorizing such contest. See Odell v. Wharton, 87 Tex. 173, 27 S. W. 123.

We may observe in passing that the demurrer seems to have been sustained on the ground that the city council failed to comply with the provisions of the act of the Legislature above referred to in ordering the election, therefore rendering the same void. We do not think that an election can be contested on the ground that the law authorizing the holding thereof was void, but such contest must be based on some reason showing that such election was not properly ordered or fairly conducted, such as the failure to give notice of th& time and place where the election is to be held or that illegal votes were cast thereat, or some other matter that would impeach the fairness of the result. So that if, as contended by appellants, the failure of the city council to provide by ordinance for the submission to the vote of the people of the question, “Shall a commission be chosen to frame a new charter?” providing therein for the selection by the voters of a committee to prepare same, rendered said election void, there was no necessity for this action; but the proper remedy, it seems, would be by injunction to prevent its enforcement (see McQuillin on Municipal Corporations, vol. 5, § 2502, and authorities thereunder; especially see Macon v. Hughes, 110 Ga. 795-804, 36 S. E. 247), or by quo warranto against its officers to oust them from office and declare the incorporation null and void (see Thompson et al. v. State, 23 Tex. Civ. App. 370, 56 S. W. 603; State v. Merchant, 38 Tex. Civ. App. 226, 85 S. W. 483).

But notwithstanding the petition fails to disclose that the notice of contest was given, which we hold essential to confer jurisdiction on the district court to try an election contest, still, as this may have been done within the time prescribed by law, we will not dismiss the case, but reverse and remand, so as to afford appellants an opportunity to amend their petition in this respect, if the facts authorize and they desire so to do; and it is so ordered.

Reversed and remanded.
      iga^For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <@x=>For other cases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes


author: FLY, C. J.

text:
    SOVEREIGN CAMP OF WOODMEN OF THE WORLD v. BAILEY.
    (No. 5605.)

    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 2, 1916.
    On Motion for Rehearing, March 1, 1916.)
    1. Insurance @=>819 — Mutual Benefit In-sueance — Actions—Evidence.
    In an action on a beneficiary certificate providing that there should be no recovery if insured died in consequence of violation or attempted violation of law, evidence held to warrant judgment against the insurer not showing that insured so met his death.
    [Ed. Note. — For other eases, see Insurance, Cent. Dig. §§ 2006, 2007; Dec. Dig. @=>819.]
    2. Witnesses @=>293 ½ — Examination — Self-In crimination.
    The rule that a person cannot be compelled to give testimony which would incriminate him applies, not only to criminal cases, but to civil cases.
    [Ed. Note. — For other eases, see Witnesses, Cent. Dig. § 1011; Dec. Dig. @=>293½.]
    On Motion for Rehearing.
    3. Witnesses @=>307 — Examination — Incriminatory Statements.
    Where a witness unequivocally stated that to answer statements might incriminate him, the court properly refused to compel Mm to answer such, questions, though on cross-examination he became confused as to the incrimination.
    [Ed. Note. — For other eases, see Witnesses, Cent. Dig. §§ 1081-1064; Dec. Dig. <⅜=>307.]
    Appeal from District Court, Victoria County; John M. Green, Judge. '
    Action by O. E. Bailey, guardian, against the Sovereign Camp of the Woodmen of the World. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    A. H. Burnett, of Omaha, Neb., R. L. Daniel, of Victoria, and Henry, McCloskey & Robertson, of San Antonio, for appellant. Proctor, Vandenberge, Crain & Mitchell and Fly & Ragsdale, aR of Victoria, for appellee.

      Application for writ of error pending in Supreme Court.

   FLY, C. J.

Appellee, as guardian, sued appellant to recover for Willie Lee Bailey, his ward, on a beneficiary certificate for $3,000, which was issued by appellant, payable to the ward upon the death of W. L. Bailey, who was the insured. This is a second appeal of tMs case. 163 S. W. 683. The cause was tried by jury, resulting in a verdict and judgment for apipellee in the sum of $3,000, with interest at 6 per cent, from July 1, 1912.

The jury was justified in finding that W. L. Bailey came to his death, without his fault, at the hands of Charles and Alvin Holz-heuser. He was shot in the side of the head and in the breast, and, although he was a right-handed man, his pistol was found lying near his left hand. The pistol had two discharged cartridges in it, but the evidence fails to show that Bailey fired the first shot, •or, if he did, that it was not fired after he had been attacked. The two shots might have been fired from the pistol after Bailey was dead, and the pistol then placed near his left hand. No one saw the shooting, except the Holzheusers, and the declaration made ■by Charles Holzheuser that he shot Bailey to prevent him from killing both of them is, not' a probable story, in the light of the fact that he was shot in the side of the head back of the ear,. but, if it was true, the man who made the declaration was not present when the first shot was fired, and could not state who started the difficulty, but could only speak as to the situation when he ran around the house to the place where he heard the firing. Alvin Holzheuser, who was there when the difficulty started, made no declaration as to how the matter began. Bailey could have been acting purely in self-defense, and still Charles Holzheuser could have truthfully said that, if Bailey had not been killed, he would have killed both the Holz-heusers.

The burden of proof was upon appellant to show that Bailey brought on the difficulty in which he lost his life. It set up as its defense the section in the beneficiary certificate which precluded recovery of the insurance money if the insured died in consequence of violation or attempted violation of laws of the state or the United States. The jury found that Bailey did not so die, and in view of the testimony they were justified in so finding. The testimony failed to disclose that Bailey began the conflict, and it was perhaps more probable that Alvin Holzheuser began the difficulty and inflicted a wound on Bailey, for there were two wounds, before he drew his pistol. The Holzheusers wore pistols, and were prepared to take some one’s life, and had come from their field with the weapons on their persons. One of the wounds was in the breast, and the other in the head just above the left ear. In this connection it may be said that the charge placed no greater burden upon appellant as to Bailey being engaged in a violation of law in consequence of wMch he lost his life than the law enjoins. There was nothing in the charge to mislead the jury, but it gave the law fully and clearly.

It may be, as contended by appellant, that under the same state of facts a court trying the Holzheusers for the murder of Bailey would instruct a verdict of not guilty but it would be on the ground that the state had failed to show who began the difficulty, and -under the rules of the presumption of innocence and reasonable doubt no conviction could be had, but that verdict would not be proof that Bailey was the aggressor. It would not show the probative force of the circumstances as to Bailey being the aggressor, but rather a lack of testimony as to who began the conflict. The burden would be on the state in the criminal case; it is on the appellant in the civil case. The testimony was too uncertain to justify a verdict that Bailey died in consequence of a violation of law on his part. Under the testimony uo one could reasonably conclude that Bailey was the aggressor. The affair was shrouded in mystery.

The Holzheusers swore that it would tend to incriminate them to tell about the circumstances surrounding the killing and the trial judge, in the exercise of a wise discretion, was of the opinion that their evidence, if they told the truth, would tend to incriminate them. There were a number of questions asked by appellant, answers to which could not possibly have tended to incriminate the Holzheusers, but the answers to the questions, no matter what they were, could not have had any materiality. The record presents a case for the application of the rule which shields a witness from answers that might incriminate him, as held in our former opinion and other authorities. Greenleaf on Ev. § 451; Ex parte Hughes, 57 Tex. Or. R. 82, 121 S. W. 1118; Counselman v. Hitchcock, 142 U. S. 547, 12 Sup. Ct. 195, 35 L. Ed. 1110. In the last case cited the Supreme Court of the United States says:

“It is impossible that the meaning of the constitutional provision can only be that a person shall not be compelled to be a witness against himself in a criminal prosecution against himself. It would doubtless cover such cases; but, it is not limited to them. The object was to insure that a person should not be compelled, when acting as a witness in any investigation, to give testimony which might tend to show that he himself had committed a crime. The privilege is limited to criminal matters, but it is as broad as the mischief against which it seeks to guard.”

That ruling is broad enough to cover any kind of case in which a person is called as a witness. To the same effect is the case herein cited, which was decided by the Court of Criminal Appeals of this state. In that case the witness was permitted to consult with his attorney as to the propriety of his answering certain questions, and after that consultation stated that his answers would incriminate or tend to incriminate him.

The judgment is affirmed.

On Motion for Rehearing.

It is earnestly insisted by appellant that Alvin Holzheuser did not state that the evidence he refused to give would incriminate and this court is adjured to adhere to its opinion on the former appeal. The court asked the witness: “Mr. Holzheuser, do you swear unequivocally that the answer to this question might incriminate you?” To which he answered: “Yes.” It is true that the witness became somewhat confused on a cross-examination, but the trial judge ruled that his evidence would incriminate him, and he was in better position to understand the surroundings than this court. The witness stated positively that the evidence would incriminate him. The court very properly held: “It is not within my province to say it would not.” The other Holzheuser was asked: “Do you refuse to answer all these questions because you fear they might incriminate you?” He answered: “Yes.”

The motion for rehearing is overruled.
      (gs^Por other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    COSGROVE v. SMITH et al.
    (No. 5575.)
    (Court of Civil Appeals of Texas. Austin.
    Jan. 26, 1916.)
    1. Witnesses <©=>160 — Competency—Transactions with: Deceased Peesons.
    Defendant cannot, under Vernon’s Say les’ Ann. Civ. St. 1914, art. 3690, providing that in actions by or against the heirs or legal representatives of a decedent neither party shall be allowed to testify as to any transaction with or statement by decedent, testify to an agreement made between his grandfather, his predecessor in title, and plaintiff’s predecessor in title fixing an agreed boundary line.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 696, 697; Dec. Dig. <©=>160.]
    2. Appeal and Ekeok <©=>1053 — Review — Harmless Eeeoe.
    While the practice of admitting incompetent evidence and then excluding it by instructions is not to be commended, the admission of such evidence is no ground for reversal, unless it appears harm resulted.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 417S-4184; Dec. Dig. <©=> 1053.]
    3. Trial <⅞=194 — Instructions-—'Weight op Evidence.
    In an action where there was a dispute over a boundary line, a charge that, if the jury should find that the parties’ predecessors in title, not knowing the true line separating their lands, agreed upon a boundary line, and, having the property surveyed, built their fences and made their improvements in reliance on such agreement, then, if the line was so fixed, it was binding, and verdict should be for defendants if the line was as stated in their answer, is improper as on the weight of the evidence.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 413, 436, 439-441, 446-454, 456-466; Dec. Dig. <§=>194.]
    4. Tbial <©=>2S2 — Instructions — Applicability to Evidence.
    Where the only evidence of agreed boundary line was _ incompetent, and it was withdrawn from the jury, a charge on such agreed boundary line is improper.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. <©=>252.]
    Appeal from District Court, Coryell County; J. H. Arnold, Judge.
    Action by Mrs. T. J. Cosgrove against C. G. Smith and another. From a judgment for defendants, plaintiff appeals.
    Reversed and remanded.
    R. F. Moore, of Gatesville, for appellant.
   RICE, J.

Appellant, on the 24th day of December, 1913, brought this suit against Mrs. A. H. Smith and her son, Chas. G. Smith, appellees, in trespass to try title to recover 20 acres of land or more out of the northwest corner of the Hugh Cameron 320-acre survey in Coryell county, and for damages and rent. Appellees resisted recovery: (1) On the ground that the land in controversy is on the W. 1?. Dodson 160-acre survey, which they own and constituted no part of the Cameron survey; (2) that these surveys adjoin each other, that the west line of the Cameron and the east line of the Dodson were coincident, and that many years prior thereto the owners of said respective surveys, who were the ancestors of plaintiff and defendants, agreed that the location of said division line between said surveys was marked by a certain fence, and that the land in controversy, by virtue of said ‘agreement, was on the west side of said fence, and therefore belonged to appellees.

Before the trial began it was agreed by counsel representing the plaintiff and the defendants:

“That the issue between them was the location of the west boundary line of the Hugh Cameron and the east boundary line of the W. P. Dodson 160-acre survey, which was a common line; that there was no issue as to title, it being admitted that the plaintiff has title to the Cameron, and the defendants have title to the Dodson, but the admission of title shall in no way affect any evidence as to the true location of said line as it actually existed by the original surveyor, or the true location of said line as plead by the defendant as an agreed line. * * * It is also agreed by both parties that the Hugh Cameron survey was the older sur-

Hence the only question was one of boundary to ascertain the true location of the division line between said surveys. A jury trial resulted in a verdict and judgment in favor of appellees, from which appellant prosecutes this appeal.

During the progress of the trial ap-pellee Chas. G. Smith, in his own behalf, was permitted, over appellant’s objection, to testify to an agreement had between his grandfather, Davis Smith the then owner of the Dodson survey, and William Spruen, part owner of the Cameron, in which they agreed upon the location of the division line between said surveys, fixing the same in accordance with appellees’ contention. And the court also permitted said witness, over objection of appellant, to testify to a subsequent agreement between himself and Andrew J. Cosgrove, the then owner of the Cameron, by which they agreed upon and fixed the location on the ground of the division line between said surveys in accordance with appellees’ contention. Appellant was the surviving wife of Andrew Cosgrove and heir at law of William Spruen and Andrew Cosgrove, through whom she deraigned title to the Cameron survey; while appellees were the heirs at law of Davis Smith, through whom they deraigned title to the Dodson survey. It was shown that Davis Smith, William Spruen, and Andrew Cos-grove were dead at the time of the trial. This testimony was objected to on the ground that it was in contravention of the provisions of article 3690, vol. 3, Vernon’s Sayles’ Rev. 'Civ. Stats, of Texas', which reads as follows:

“In actions by or against executors, administrators or guardians, in which judgment may be rendered for or against them as such, neither party shall be allowed to testify against the others as to any transaction with, or statement by, the testator, intestate or ward, unless called to testify thereto by the opposite party; and the provisions of this article shall extend to and include all actions by or against the heirs or legal representatives of a decedent arising out of any transaction with such decedent.”

This ruling of the court is assigned as error on the part of appellant. It appears, however, by an explanation to the bill that this evidence, on motion of appellant, was by the court withdrawn from the consideration of the jury. While this evidence should not have been admitted, as it was violative both of the letter and spirit of the statute referred to, the witness being. entirely incompetent to testify as to such agreement (see Parles v. Caudle, 58 Tex. 216; Reddin v. Smith, 65 Tex. 26; also Rogers v. Tompkins, 87 S. W. 382; Edelstein v. Brown, 100 Tex. 403, 100 S. W. 129, 123 Am. St. Rep. 816; Boiders v. Dooley, 154 S. W. 614; Leach v. State, 67 Ark. 314, .55 S. W. 15), still, in view of the fact that this evidence was withdrawn and the jury directed not to consider same, it is doubtful whether, under the circumstances, its introduction should be held reversible error. The practice of admitting and then excluding improper evidence is condemned. See Gulf, C. & S. E. Ry. Co. v. Levy, 59 Tex. 551, 46 Am. Rep. 269; Allen v. Willis, 60 Tex. 155; McCauley v. Long & Co., 61 Tex. 80; Smyth v. Caswell, 67 Tex. 576, 4 S. W. 848. The rule seems to be, however, that when improper evidence is introduced, and after-wards excluded by the charge, it is not regarded as ground for reversal, unless there is a strong reason to believe that such evidence resulted in injury to the objecting party. See Church v. Waggoner, 78 Tex. 203, 14 S. W. 581; Smyth v. Caswell, 67 Tex. 567, 4 S. W. 848. It is likewise held that, though the issue upon which such evidence is admitted is immaterial, yet, if it be so intimately connected with a material issue that it cannot be known whether it did or did not affect the finding of the jury on a material issue in the ease, then it is cause for reversal. See Eborn v. Zim Pelman, 47 Tex. 522, 26 Am. Rep. 315; Schoolher v. Hutchins, 66 Tex. 332, 1 S. W. 266; Smyth v. Caswell, 67 Tex. 577, 4 S. W. 848. It is often difficult, under such circumstances, to determine whether or not the error has been cured by the withdrawal of the improper testimony; and appellant insists in the present case by her third assignment of error that, notwithstanding such withdrawal, the court, in effect, in a subsequent portion of its charge, permitted the jury to consider said evidence. The portion of the charge so com-Xfiained of is as follows:

“(K) If, however, you should find from the evidence in this case that there was a dispute between Cosgrove and Spruen on one side and David Smith on the other as to the true dividing line between the Dodson and Cameron surveys, and that Spruen and Cosgrove did not know the true location of the northwest corner of the Hugh Cameron survey and the west line running therefrom, and that said Smith did not know the true location of the northeast corner of the Dodson and the east line running south therefrom, and that Spruen and Cosgrove built their fence on the west line of the Hugh Cameron survey as they then conceived and believed it to be, and if they further had it surveyed as they then believed it to be located, and made their improvements with reference to said line as so surveyed, and that Smith made his improvements with reference to the said line as it was then believed to 'be located by all of said arties, if they did so believe, and that the said pruen and Cosgrove permitted Smith or his heirs to subsequently make valuable improvements with reference to said line, then such recognition and acquiescence of Spruen and Cos-grove as to the location of the line in question would be binding upon the plaintiff herein, and, if you should find that the line between the Hugh Cameron and the W. P. Dodson was located at the. point and place stated in defendant’s original answer by reason of the facts submitted to you in this paragraph of the charge, then your verdict should be for the defendants.”

It is insisted by appellant that said charge is error, because, as stated in her brief, there was no evidence, other than the testimony of Chas. G. Smith, defendant, and Andy Smith, tending to support such issue, and because there was no evidence of valuable improvements having been placed, on the line by Davis Smith during his lifetime, or by his heirs or legal representatives during the lifetime of Spruen or Cos-grove, and because there was no pleading warranting the court in giving such charge; and, further, because in effect said ■ paragraph told the jury that it was proper and right for them to consider all of the testimony of Charles G. and Andy Smith with reference to recognition or acquiescence in the line in question. We think the charge ought not to have been given, because it was on the weight of evidence, and further because, assuming as true, as stated by appellant in her brief, there was no evidence in the record to support it, save that of Charles G. and Andy Smith, it was error to give it. Charles G. Smith alone testified as to the agreement with Cosgrove. Andy Smith stated that he had no conversation with Cosgrove about it.

The remaining assignments have been considered, and are regarded without merit; but, for the errors indicated, the judgment of the trial court is reversed, and the cause remanded.

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


author: MOURSUND, J.

text:
    FAWCETT v. MAYFIELD et al.
    (No. 5600.)
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 26, 1916.
    Rehearing Denied March 1, 1916.)
    1. Appeal and Ebbob <@=>880 — Pebsons Entitled to Allege Ebbob.
    Where, in an action on a note by an in-dorsee and to foreclose a chattel mortgage, brought against the maker and mortgagor, and a third person in possession of the mortgaged chattels, the payee intervened, claiming the equitable ownership of the note to permit the third person to litigate his cross-action, which he did not sustain, the third person could not object to judgment for plaintiff against him.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3584-3590; Dec. Dig. <@=> 880.]
    2. Appeal and Ebbob <@=>1073 — Pebsons Entitled to Allege Ebbob.
    Where an indorsee of a note brought suit thereon and sought to foreclose a mortgage on chattels in the possession of and claimed by the third person, who replevied the chattels seized by plaintiff under writ of sequestration, and the payee intervened as the equitable owner of the note, and the third person was not entitled to recover, a judgment on the replevy bond for plaintiff and the intervener jointly was not prej-udicially erroneous as against the third person, though the bond was payable only to plaintiff.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4240^4247; Dec. Dig. <⅞=> 1073.]
    3. Sequestbation <@>=20 — Bonds—Judgment —Rent.
    Rev. St. 1911, art. 7112, providing that in suits for the enforcement of the mortgage, if defendant replevies the property he shall not he required to account for the rents of the same, is intended for the protection of the mortgagor, in whom the ownership remains until the property is sold under foreclosure, and a person not in privity with the mortgagor, who takes possession of the property and, when sequestered, replevies the same, is responsible for the renta thereof.
    [Ed. Note. — For other cases, see Sequestration, Cent. Dig. §§ 42-49; Dec. Dig. <@=>20J
    Error from Bexar County Court for Civil Cases; J. H. Clark, Judge.
    Action by F. H. Mayfield against George Tillman and another, in which James Kapp and others, members of a firm doing business under the name of the Household Furniture Company, intervened as parties plaintiff. There was a judgment for plaintiff and in-terveners, and defendant C. C. Fawcett brings error.
    Affirmed.
    Gordon Bullitt and J. T. Fly, both of San Antonio, for plaintiff in error. Leonard Brown, of San Antonio, for defendants in error.
   MOURSUND, J.

F. H. Mayfield, on July 1, 1914, sued George Tillman and C. C. Faw-cett, seeking to recover a judgment against Tillman on a note for $548.12 given by him to the Household Furniture Company, and indorsed to Mayfield; also to foreclose as against both defendants a chattel mortgage on certain furniture and household goods, sold by said furniture company to Tillman. Plaintiff alleged that Fawcett was in possession of said property and claimed some interest therein. On February 17, 1915, James Kapp, A. J. Walser, and H. E. Lockhart, members of a firm doing business under the name of Household Furniture Company, intervened, and made themselves parties plaintiff, alleging that they were the real owners of the note and mortgage sued on, and that such note was transferred to plaintiff for collection. They adopted the original petition and prayer therein contained. The ap-pellees, in their brief, state that the inter-veners were impleaded by defendant Fawcett in his original answer, and when the case was set for trial sought a continuance because they had not been served, and thereupon they voluntarily appeared and made themselves parties. The original answer does n'ot appear in the record. The first amended original answer of defendant Fawcett contained denials of the allegations of the petition and alleged that Tillman, as the tenant of Fawcett, was in possession of certain household goods and kitchen furniture belonging to Fawcett, and that, without Faw-cett’s knowledge or consent, he exchanged a portion thereof for the furniture and goods described in plaintiff’s petition,' or a portion thereof, and that Fawcett informed inter-veners that the furniture and household goods so received by them belonged to him, and requested an inventory thereof, which they refused to give; that by reason of said facts Fawcett acquired an interest in the property taken in exchange by Tillman; that interveners have refused t'o return Fawcett’s property or to account to him for the same; that it was of the reasonable value of $300. He prayed judgment awarding him an interest in the property described in plaintiff’s petition, or, in the alternative, for the value of his property alleged to have been received by interveners. Plaintiff having caused the property to he seized under writ of sequestration, Fawcett replevied the same, and by supplemental petition plaintiff and interven-ers sought to recover against him and the sureties on the replevy bond the sum of $25 per month, which they alleged to he the reasonable rental value of the property. Faw-cett, by supplemental answer, denied the allegations in the supplemental petition. The court rendered judgment in favor of plaintiff and interveners against Tillman for $602.92 with interest, and against both Tillman and Fawcett for foreclosure of the chattel mortgage lien; also against Fawcett and the sureties on his replevy bond for $231, the value of the pr'operty replevied, and $100, the value of the hire of said property.

Appellant contends that the court erred in rendering judgment for plaintiff. It is true that interveners’ allegation that they were the real owners of the note was not denied by plaintiff, and that the evidence sustained such allegation. However, interveners sought no recovery as against; plaintiff, but on the contrary recognized his legal title to the note, although admitting that they were the beneficiaries or equitable owners of the same, in order that defendant Fawcett might have the opportunity of litigating his cross-action. Fawcett failed to sustain his cross-action, and makes no complaint in this court because of the court’s decision with reference thereto. He cannot contend that plaintiff, in whom the legal title to the note was vested, is not entitled to judgment against him. Haggard v. Bothwell, 113 S. W. 965.

Appellant also contends that the court erred in rendering judgment against him and the sureties on his replevy bond, in favor of the interveners. The judgment was in favor of plaintiff and interveners. The bond was payable only to plaintiff, who is' clearly entitled to judgment thereon, and the error in awarding judgment in favor of plaintiff and interveners jointly is harmless.

The court did not err in rendering judgment for $100, the value of the rent upon the goods replevied. While article 7112 provides that in suits for the enforcement of a mortgage lien upon property, if defendant should replevy the property he shall not be required to account for the fruits, revenue, or rents of the same, such article was intended for the protection of the mortgagor, in whom the ownership remains until the property is sold under foreclosure, and it was never intended that a person not in privity with the mortgagor could take possession of the property and, when sequestrated, re-plevy the same without being responsible for the rents, etc. In this case Fawcett had not leased the property from the mortgag'or, but held it after the mortgagor had told the mortgagee to come and get it. It had been left by the Tillmans in Fawcett’s house, when they removed therefrom, and he refused t'o give possession thereof.

The judgment is affirmed.
      <§=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    FIRST STATE BANK OF HUBBARD v. HUBBARD FARMERS’ OIL & GIN CO. et al.
    (No. 5506.)
    (Court of Civil Appeals of Texas. Austin.
    Jan. 26, 1916.)
    On motion for rehearing. Former opinion (178 S. W. 1015) affirmed, and motion overruled.
   Opinion on Motion for Rehearing by Dawson State Bank.

RICE, J.

Since our original opinion was rendered herein, the Supreme Court, in Craver et al. v. Greer et al., 179 S. W. 862, has had occasion to pass upon the principal question raised by this appeal, and has determined it in favor of the views therein expressed, for which reason, as well as those set forth in our opinion, the motion should be denied. Appellee in its motion for rehearing, however, insists that under our former opinion appellant was authorized to recover for property other than that upon which it had a lien, such as the products of the mill, including oil; meal, cake, etc., sold by the receiver and converted into cash, upon which appellant had no lien. While we think this construction is not warranted by our opinion, yet for the purpose of making clear what we intended to hold, we wish to add that we only intended that appellant should be entitled to recover for the property upon which it had a mortgage lien, or the insurance thereon when collected.

With this statement explanatory of our holding, the motion of appellee for rehearing is overruled.

Motion overruled.


author: KEY, C. J.

text:
    TRINITY & B. V. RY. CO. v. LUNSFORD.
    (No. 5509.)
    (Court of Civil Appeals of Texas. Austin.
    Nov. 29, 1915.
    Rehearing Denied Feb. 9, 1916.)
    1. Trial <@=3307 — -Taking Papers to Jury Room — ‘ ‘Deposition. ’ ’
    A written statement, made shortly after plaintiffs injury, cannot be treated as a deposition within Rev. St. 1911, art. 1957, which provides that the jury may take with them in their retirement any written evidence, except depositions of witnesses, so that it was error to refuse to permit the jury to take with it such statement when material to the issues.
    [Ed. Note. — For other cases, see Trial, Cent. Dig- §§ 732-737; Dec. Dig. <§=5307.
    Por other definitions, see Words and Phrases, First and Second Series, Deposition.]
    2.Trial ⅜=307 — Taking Documents to Jury Room — Request by Jury.
    In such case it was the duty of the court to send out the statement with the jury on its retirement, and it was immaterial whether the jury requested permission to take the statement or not, especially where the jury knew that the court had refused to permit it at counsel’s request, as the jury might well have assumed that the court would not have permitted it to take the statement at its own request.
    [Ed. Note. — For other eases, see Trial, Cent. Dig. §§ 732-737; Dec. Dig. <§=⅛07.]
    3. Trial <§=>307 — Taking Documents to Jury Room.
    In such case, the fact that the jury would probably have remembered the contents of the statement was no justification for refusing to permit the jury to take it in retirement.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 732-737; Dee. Dig. <§=>307.]
    4. Trial <§=>143 — Documentary Evidence-Question eor Jury.
    It is a question for the jury, under conflicting evidence, whether the statement purporting to be that of plaintiff, made shortly after his injury, was accurately taken down.
    [Ed. Note. — For other eases, see Trial, Cent. Dig. §§ 342, 343; Dec. Dig. <§=>143.]
    5. Appeal and Error <§=>1170 — Harmless Error — Sending Documents to Jury Room.
    AVhere a written statement of plaintiff, taken shortly after his injury, was not permitted to be taken with the jury in retirement, the error was sufficient to require reversal, in spite of rule 62a (149 S. W. x), providing that a cause shall not be reversed on account of error unless such error probably caused the rendition of an improper judgment.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4032, 4066, 4075, 4098, 4101, 4454, 4540-4545; Dec. Dig. <§=>1Í70.]
    Appeal from District Court, Freestone County; H. B. Daviss, Judge.
    Action by James T. Lunsford against the Trinity & Brazos A'alley Railway Company. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    Lassiter, Harrison & Rowland, of Ft. Worth, for appellant. O. M. Wroe and A. B. Geppert, both of Teague, and Ramsey, Black & Ramsey, of Austin, for appellee.
   KEY, C. J.

Though a transferred case, this is the second time this suit has found its way to this court. 160 S. W. 677. At the last trial verdict and judgment were rendered for the plaintiff for $8,000, and the defendant has appealed. It is a personal injury case, the nature of which is set out in our former opinion. At the last trial the learned judge submitted the case to the jury under a charge quite fair to appellant, and free from all the objections urged against it However, we suggest that upon another trial the charge be so framed as to leave no room for claiming that it permits a double recovery.

Pretermitting the assignments of error which challenge the verdict, and expressing no opinion upon that subject, we overrule all other assignments, except the eighth, which complains of the action of the trial court in refusing to allow a written statement, made by the plaintiff and introduced in evidence by the defendant, to be taken by the jury when they retired to consider of their verdict. The plaintiff was injured on the 22d day of September, 1910, and the statement referred to was made one month thereafter, and there was a sharp conflict between the testimony given by the plaintiff while on the witness stand and portions of the written statement upon a very material issue in the case. The bill of exception shows that before the jury retired to consider of their verdict, the judge delivered to them his written charge, the written pleadings upon which the case was tried, and a photograph of an engine which had been introduced in evidence; that thereupon the defendant in open court, and before the jury retired, requested and insisted that the written statement of the plaintiff above referred to should be delivered to the jury along with the other papers above mentioned, and that they should be permitted to take that statement with them and have it during their deliberations in the jury room, to which request the plaintiff’s counsel objected, and the court declined to permit the jury to take with them the written statement. Article 1957 of the Revised Statutes of 1911 reads as follows:

“The jury may take with them in their retirement the charges and instructions in the cause, the pleadings and any written evidence, except the depositions of witnesses. But, when part only of a paper has been read in evidence, the jury shall not take same with them, unless the part so read to them is detached from that which was excluded.”

This statute was enacted for the benefit of litigants as well as jurors, and it is as much the right of the former as it is of the latter to have its terms complied with. The document referred to’ was not the deposition of a witness which the statute excludes, but was written evidence which was offered by the defendant for the purpose of contradicting the testimony given by the plaintiff while on the witness stand, and it was clearly within the purview of the statute quoted. It was also very material upon the most vital issue in the case, and therefore the court committed reversible error in not permitting it to be taken by the jury when they retired to consider of their verdict. Railway Co. v. Wilson, 37 Tex. Civ. App. 405, 84 S. W. 274; Biard & Scales v. Loan Ass’n, 147 S. W. 1168.

In the Wilson Case the Court of Civil Appeals for the First District held that the trial court committed error in not allowing the jury to take with them in retirement a similar statement made by the plaintiff in that case concerning his claim against the railway company, which statement had been admitted in evidence. In the Biard & Scales Case, where letters and telegrams in relation to the transaction in issue were received in evidence, it was held error by the Court of Civil Appeals for the Fourth District to refuse to permit the jury to take with them the letters and telegrams. Counsel for appellee have undertaken to break the force of the^two cases referred to by indulging the presumption that in those cases the jury requested to have the papers mentioned while considering of their verdict. As reported, the cases do not show that the jury made any such request, and therefore, if any presumption is to be indulged, it seems to us that it should be that no such request was made. But, as said before, we think the statute quoted was enacted for the benefit of litigants, and that its enforcement should not be made to depend upon whether or not the jury request the use of such written testimony while considering the ease in the jury room.

In an explanatory statement attached to the bill of exception by the trial judge, in addition to stating that he regarded the written statement referred to as similar to depositions, and that the plaintiff’s counsel objected to its being delivered to the jury, he further stated that the jury, at no time during their deliberations, called for it. We attach no importance to the latter statement, for two reasons, which are: (1) As the trial judge regarded the statement as similar to the deposition of the witness, it is not probable that he would have permitted the jury to have it if they had asked for it; and (2) as the defendant’s request to have the paper delivered to the jury and the judge’s refusal to do so occurred in open court, and presumably in the hearing of the jury, the probabilities are that if the latter had desired the use of that statement while considering of their verdict, they would not have requested the court to let them have it. Having heard the judge rule that it was not permissible for the jury to have the paper referred to while considering of their verdict, it is not probable that they would have been willing to put themselves in the attitude of differing from the judge upon a question of law, and asking him to reconsider a specific ruling which he had so recently made. Hence we decline to dispose of the case upon the theory that, inasmuch as the jury did not request to have the written statement with them in the jury room, therefore they fully understood its purport, and that having it with them would not have strengthened appellant’s case.

The further argument is made in behalf of appellee that as the statement referred to had been read to the jury as evidence, they doubtless remembered its contents, and therefore appellant was not injured. In other words, the contention is that it appears with reasonable certainty that appellant could not have been injured by the failure of the jury to have the paper mentioned while considering the case in the jury room. Upon that subject appellee’s counsel seem to have undergone a change of mind, otherwise they would not have objected to the jury’s taking the written statement with them. When the case was tried, they seemed to have such apprehension concerning that document as to feel justified in. taking the risk of having the case reversed rather than permit the jury to take the document with them and read it over and consider it while in consultation. Their apprehensions may have been well founded, but they afforded no justification for a denial of a right secured to appellant by statutory law.

It is further argued that the testimony shows that the statement was not correctly written down by the person to whom it was made, but upon that subject the testimony was conflicting. The document was written by one of appellant’s agents, but was signed by appellee; and, while there may be some conflict between the testimony of the agent referred to and that given by appellee, it was for the jury, and not the court, to determine whether or not the statement was correctly reduced to writing. Furthermore, in support of the court’s ruling, counsel for appellee cite Frugia v. Trueheart, 48 Tex. Civ. App. 513, 106 S. W. 736; Wiggs v. Telegraph Co., 110 S. W. 179; West v. Houston Oil Co., 56 Tex. Civ. App. 341, 120 S. W. 228, and rule 62a (149 S. W. x). The cases cited are not in point. In the Frugia Gase an abstract of title which was attached to a deposition was admitted in evidence independently of the deposition, and, because of that fact, the appellate court held that there was no error in permitting the jury to take it with them in their retirement. It is true that it is also stated in the opinion that, as the abstract was merely offered as a circumstance to prove another fact, it was probable that, without taking the abstract with them, the jury would have remembered that it was offered in evidence for that purpose, and therefore it was not probable that its exclusion from the jury room would have, in any wise, affected the finding of the jury. The ruling in that case was correct on the first point; and the obiter dictum on the second point may have also been correct. In the Wiggs Gase it was held that memoranda, consisting of words and figures written on tickets by telephone operatives relating to a long-distance call and used by a witness to refresh his memory, are not such written evidence as is contemplated by the statute, and that it was not error to refuse to allow the jury to take them on retirement. In the West Gase it was held not ground for reversal for the jury to take with them an instrument, part of which had been excluded, in the absence of a showing that they read the excluded portion.

Neither of the three cases referred to is authority in support of the ruling complained of in this case. But, as stated before, and we presume as a dernier ressort, counsel for appellee have invoked rule 62a. The writer is authorized to say by the other members of the court that, notwithstanding the rule referred to, they are of opinion that this case should be reversed; and for the writer’s opinion of rule 62a, reference is made to his dissenting opinion in Railway Co. v. Bartek, 177 S. W. 140. Speaking for himself only, and without committing the other members of the court, tire writer believes that this case falls within the plain meaning of rule 62a, which reverses the wholesome rule upon the subject established by many decisions of our Supreme Court, and requires a party seeking the reversal of a case, not only to show that material error was committed which may have injured him, but to go further and affirmatively show that such error probably caused the rendition of an improper judgment. This case illustrates the injustice of that rule, because while the evidence was sharply conflicting, the most that an honest judge can say is, in the opinion of the writer, that if the ruling complained of had not been made, the verdict might have been different, and that such judge cannot truthfully say that it probably would have been different. In some cases, if not in many, the probabilities of obtaining a verdict may be about equal, and when one party is deprived of that equal chance by an erroneous ruling of the trial court, and especially when such error is committed at the instigation and request of the successful party, a universal rule of all enlightened jurisprudence, founded upon the dictates of right and justice, require such case to be reversed; and, notwithstanding the reading of rule 62a, the writer is not willing to hold otherwise.

For the error pointed out, the judgment is reversed, and the cause is remanded.

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

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text:
    SAN ANTONIO & A. P. RY. CO. v. SHANKLE & LANE.
    (No. 5562.)
    (Court of Civil Appeals of Texas. Austin.
    Dec. 22, 1915.
    On Motion for Rehearing, Jan. 19, 1916.)
    1.Appeal and Error <©=>1066 — Prejudicial Error — Instructions — Applicability to Evidence.
    In a suit for damages to a shipment of cattle from unreasonable delay, etc., a charge that, if the unreasonable delay caused the cattle to get to market a day later, and there was a decline in that market, the jury should find for plaintiff the amount of damages thereby sustained, was reversible error, where the evidence did not show that there was any decline in the market between the day when the cattle should have arrived and the day on which they did arrive, and where, for aught the court could tell, the jury might have based their verdict for plaintiff on such item of damages.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4220; Dee. Dig. <©=>1066.]
    2. Appeal and Error <©=>1050 — Prejudicial Error — Evidence.
    In such action the admission of extracts in the nature of market notes or review, showing on their face that they were no part of the market quotations, was prejudicial error, though plaintiffs might have established market value by market reports from publications regarded and recognized as correct.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dec. Dig. <©=>1050.]
    3. Carriers <©=230 — Injury to Shipment oe Cattle — Instruction—Damages.
    In such suit the charge directing a verdict for defendant carrier on the ground that no measure of damages had been shown was properly refused, as, notwithstanding there was no sufficient evidence on the measure of damages, plaintiffs were entitled to recover nominal damages.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 961, 962; Dec. Dig. <©=>230.]
    4. Trial <©=>191 — Instructions—Assumption oe Fact.
    In a suit for damages to a shipment of cattle from unreasonable delay, etc., a charge that the measure of damages was the difference between the value of the cattle as they were when they reached the market and their value if they had arrived in good condition and in reasonable time was objectionable, as assuming that there was a difference between the value of the cattle when they arrived and their value had they arrived earlier.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 420-431, 435; Dec. Dig. <©=>191.]
    5. Trial <©=>191 — Instructions.
    Such instruction was objectionable, in that it assumed that the cattle were' damaged, and that they failed to arrive in good condition and in reasonable time.
    [Ed. Note. — For other eases, see Trial, Cent. Dig. §§ 420-431, 435; Dec. Dig. <©=>191.]
    On Motion for Rehearing.
    6. Appeal and Error <©=>1173 — Disposition —Aepirmance.
    Where one of two carriers, defendants in action for damages to a shipment of cattle, had an instructed verdict in its favor, and the other suffered judgment and alone appealed, the judgment, though reversed and remanded as to the appellant, would be affirmed as to such defendant.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4562-4572, 4656; Dec. Dig. <©=>1173.]
    Appeal from Falls County Court; F. S. Heffner, Judge.
    Suit by Shankle & Lane against the San Antonio & Aransas Pass Railway Company and the Missouri, Kansas & Texas Railway Company of Texas. Judgment in favor of defendant, Missouri, Kansas & Texas Railway Company of Texas, and against defendant San Antonio & Aransas Pass Railway Company, and it appeals.
    Reversed and remanded as to defendant San Antonio & Aransas Pass Railway Company, and affirmed as to defendant Missouri, Kansas & Texas Railway Company of Texas.
    Boyle & Storey, of San Antonio, and Neff & Taylor, of Waco, for appellant. Nat Llewellyn, of Marlin, for appellees.
   RICE, J.

Appellees brought this suit against appellant and the Missouri, Kansas & Texas Railway Company of Texas to recover damages to a shipment of cattle, consisting of 31 calves, 10 cows, and 1 bull, from Chilton, via appellant’s line to Waco, thence over the Missouri, Kansas & Texas Railway to Et. Worth. The negligence alleged consisted in unreasonable delay, rough handling en route, and that the car in which they were shipped was poorly bedded, on account of which the cattle became dirty, bedraggled, hollow, fell off in weight, and depreciated in market value, and, further, that there was a decline in the market between the time the shipment should have arrived and the time it did arrive at Et. Worth, as well as an alleged failure on the part of appellant to notify the Missouri, Kansas & Texas Railway Company of the shipment, which it was claimed it was their duty to do, and that the cattle should have been shipped out on the train passing Chilton at 4 o’clock, whereas they were not shipped until about 6:30, which occasioned the delay.

Appellant answered, specifically denying each act of negligence charged against it, and specially pleaded that it received the shipment under a written bill of lading, whereby it only bound itself to transport the same to Waco, and there deliver it to its connecting carrier, the Missouri Kansas & Texas Railway Company. It further alleged that it handled said shipment with due diligence and care, properly transporting the same from Chilton to Waco, where it promptly delivered same to its codefendant.

The trial resulted in a verdict and judgment in favor of appellees against appellant for the sum of $100; but there was an instructed verdict in favor of the Missouri, Kansas & Texas Railway Company, from which judgment appeliant alone prosecutes this appeal.

Among other things, the court charged the jury that, if they believed that such unreasonable delay caused said cattle to get to the market at Et. Worth a day later, and there was a decline in the Et. Worth market, then they would find for plaintiffs the amount of damage they sustained thereby, etc. This charge is challenged by the first assignment of error, on the ground that there was no evidence before the jury that there was a decline in said market, and that the court therefore submitted an issue not warranted by the evidence. We have carefully examined the statement of facts, and failed to find any evidence whatever which ■would warrant the submission of this issue. Mr. Lane, who accompanied the shipment, and the only witness who testified with reference to the subject under consideration, did not undertake to say what the market was in Ft. Worth either on July 17, 1012, the day appellees claim the cattle should have arrived, or on July 18th, the date on which they did arrive and were sold, or on any other date. Appellees failed to take the testimony of the commission merchant to whom the cattle were consigned, nor was the testimony of any other person familiar with the Ft. Worth market introduced showing, or tending to show, any decline in the market between said days. It is true Mr. Lane testified what his cattle brought, and read from a newspaper report their supposed weight and classification, but no market report was read from said paper covering the dates in question, showing the market price of cattle on said respective dates. Plaintiffs, however, did read the following excerpts from the Live Stock Reporter:

“W. B. Lane of Palls County had in 31 calves of 422 that notched $3.”
“Calves and Yearlings.
“Trading in the calf section dragged badly, the market being more listless than on yesterday. What few consignments of a good sort that were offered crossed the scales the forenoon at prices that looked about 50 cents lower than last week’s close. Common to medium calves were given rough treatment, and on these the market was considered 50 to 75 cents lower than on Monday.”

No dates were offered in connection with these extracts. This evidence, we think, falls far short of showing or tending to show that there was any decline in the Et. Worth market between the day that the cattle should have arrived and the day on which they in fact did arrive. Appellant objected to the charge complained of in the above assignment for the reasons urged, properly reserving its exception to the action of the court in overruling such objection. In Houston & Texas Central R. R. Co. v. Barron, 124 S. W. 996, it was held reversible error to submit in a charge an issue not made by the evidence, unless it is clear that the jury were not misled thereby. Again, in Kansas City, Mexico & Orient Ry. Co. v. Moore, 149 S. W. 302, it is held, as shown by the syllabus, that:

“Iii an action against a carrier of live stock for damages from delay, where plaintiff failed to prove a decline in the market, and the only proof on the subject was to the contrary, the refusal of a requested charge that, in estimating plaintiff’s damages, the item claimed on account of a decline in the market price should be excluded, was error.”

In Gulf, Colorado & Santa Fe Ry. Co. v. Anderson, 126 S. W. 928, it was held that the submission of an issue made by the pleadings, where no evidence tending to sustain it is introduced, is an error calculated to mislead the jury, and requires a reversal of the judgment. To the same effect is the holding in H. & T. C. R. R. Co. v. Roberts, 126 S. W. 890, by Chief Justice Fisher. For aught that we can tell, the jury may have based their verdict on this item of damages. We therefore sustain the assignment complaining of this charge, and hold that to give it under the facts disclosed by the record was reversible error.

Appellant claims by its second assign-' meat of error that the court erred in admitting in evidence over appellant’s objection the extracts from the Et. Worth Live Stools Reporter above referred to, on the ground that the same was no part of the market report, and therefore hearsay and incompetent to prove any issue in the case. While it is always competent to establish market value by market reports from publications regarded and recognized as correct, yet the rule has never been extended, so far as we are advised, as to permit the introduction of such an item as the one alluded to. The excerpt shows on its face that it is no part of the market quotation. We think its introduction over appellant’s objection was error and prejudicial, and we therefore sustain this assignment.

Notwithstanding there may not have been sufficient evidence on the measure of damages, yet, as appellees were entitled to recover nominal damages, it would have been improper to have given the charge directing a verdict for appellant on the ground that no measure of damages had been shown, for which reason we overrule the third assignment.

The court charged the jury in the sixth paragraph as follows:

“You are instructed that the measure of damages in this case is the difference betweén the value of said cattle as they were at the time they reached the Ft. Worth market and their value had they arrived there in good condition and in reasonable time.”

This charge is objected to on the ground that it assumed that there was a difference between the value of the cattle at the time they did arrive and their value had they arrived earlier than they did, and because it was on the weight of evidence, in that it assumed that the cattle were damaged, and that they failed to arrive in good condition and in reasonable time. This charge is open to the criticism urged against it, and we therefore sustain the fifth assignment of error complaining of its submission to the jury.

For the errors indicated, the judgment of the trial court is reversed, and the cause is remanded.

Reversed and remanded.

On Motion for Rehearing.

The Missouri, Kansas & Texas Railway Company of Texas hás filed its motion for rehearing, asking us to set aside the general order of reversal in this case and affirm the judgment below as to it, on the ground that the trial court rendered judgment in its favor. The record, however, shows that no appeal was taken from the judgment in its favor, the appeal bond having been made payable alone to the appellees, Shankle & Lane; therefore it.was not technically necessary to have restricted the order of reversal to Shankle & Lane, because this was the legal effect of such reversal.

Rut, in order to relieve the case of all doubt, the motion of the Missouri, Kansas & Texas Railway Company of Texas is granted, and the judgment is ordered affirmed as to it, but to stand reversed as heretofore ordered in favor of appellant, the San Antonio & Aransas Pass Railway Company.
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