text:
    LAW v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 14, 1914.
    On Motion for Rehearing, Feb. 4, 1914.)
    1. Larceny (§ 77) — Recent Possession — Instructions.
    Defendant, charged with theft of a calf, is not entitled to a charge as to the nature of the possession which will alone warrant an inference of guilt, where the state does not rely on recent possession alone, but there are other cogent circumstances; the animal being recently branded with defendant’s brand, and he admitting possession and claiming ownership through purchase from some one or other.
    [Ed. Note. — For. other cases, see Larceny, Cent. Dig. §§ 199, 202-204; Dec. Dig. § 77.]

      2. Larceny (§ 78) — Purchase as a Defense —Instructions.
    The claim of defendant, charged -with theft of a calf, that he bought it from some one or other of the persons from whom he had recently bought cattle was presented sufficiently favorably by a charge to acquit if the jury believe from the evidence that he bought it from enumerated persons, or any one else, or if they have a reasonable doubt as to whether he did so.
    [Ed. Note. — For other cases, see Larceny, Cent.' Dig. § 182; Dec. Dig. § 78.]
    3. Criminal Law (§ 1090) — Appeal—Review —Record.
    In the absence of bills of exceptions as to the introduction of evidence, grounds in the motion for new trial, based on the admissibility of evidence, cannot be considered on appeal.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig, §§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.]
    4. Criminal Law (§ 1090) — Appeal — Review-Record.
    The refusal of a requested charge, alleging certain remarks to have been made by the prosecuting attorney, cannot be reviewed in the absence of bills of exceptions verifying the fact that such language was used; the charge alone not doing so.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825-2S27, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.]
    5. Criminal Law (§ 1137) — Appeal—Invited Error.
    One cannot complain of a charge given at his request.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3007-3010; Dec. Dig. § 1137.]
    6. Criminal Law (§ 673) — Evidence Affecting Credibility — Failure to Charge.
    As evidence that witnesses for defendant were under indictment charged with felonies could have been used for no other purpose than as affecting their credibility, failure to instruct thereon was not error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1597, 1872-1876; Dec. Dig. § 673.]
    On Motion for Rehearing.
    7. Criminal Law (§ 1210) — Cumulative Sentences — Pendency oe Appeal.
    Code Cr. Proc. 1895, art. 840, providing that when defendant has been convicted in two cases, and the punishment in each is confinement in the penitentiary, the judgment in the second conviction shall fix the commencement of the term at the expiration of the other, applies only where there has been a final conviction in the first case, and hence not where an appeal in that case is pending."
    [Ed. Note. — For other cases, see Criminal Law. Cent. Dig. §§ 3298-3301, 3315; Dec. Dig. § 1210.]
    Appeal from District Court, Motley County; J. A. P. Dickson, Judge.
    J. L. Law was convicted, and appeals.
    Sentence reformed, and judgment affirmed.
    T. T. Bouldin and Dalton & Russell, all of Plainview, and W. F. Ramsey and C. L. Black, both of Austin, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

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

   HARPER, J.

Appellant was prosecuted and convicted of theft of one head of cattle, and his punishment assessed at two years’ confinement in the penitentiary.

Oscar Benson and Will King testified that on different occasions they passed through a pasture controlled jointly by appellant and Will Duncan. Duncan was engaged in farming and buying cattle for appellant; that on one occasion they saw two head of cattle, calves, they recognized by the flesh marks, etc., as belonging to the Matador ranch; that the first time they saw these calves in the Law-Dunean pasture they were branded N on left hip. The brand was then only a day or two old. This is shown by the record to be Law’s brand; in fact he so states. They saw these calves in this pasture again, and later informed the owners. They informed Mr. Robinson, and they, Mr. Robinson and some others, got these two calves and drove them to the Matador pasture at Winkler. Mr. Law nor Mr. Duncan were present when the two head of cattle were taken by Robinson and others. Mr. Law was then arrested, charged with theft of one head of cattle from the manager of the Matador ranch. Mr. Robinson says that shortly thereafter he had a conversation with Mr. ILaw, and appellant told him he wanted to go out (to Winkler) and look at it and see if he could tell who he got it from.

Appellant requested the court to charge the jury: “You are charged that to warrant an inference or presumption of guilt from the circumstance alone of possession, such possession must be personal, must be recent, must be unexplained, and must involve a distinct and conscious assertion of property by the defendant, and unless these occur, you will not consider, as a circumstance of guilt against him, the fact of his possession of the property if he so had.” Special charge No. 3 is, in substance, the same as the above. Appellant bases his main contention for reversal on the refusal to give the above two charges, or either of them, and claims the case of Moreno v. State, 24 Tex. App. 401, 6 S. W. 299, supports his contention. In this we think he is in error. In the Moreno Case the state did rely upon the circumstance of possession alone. In this case the state does not rely upon that circumstance alone, but shows that the animal is recently branded in appellant’s brand, and the first time he seeks to make an explanation-of his possession, he does not deny possession, does not deny that he claimed the animal, but says he wants to go and see it, and see if he could tell from, whom he got it, thus admitting his possession, his claim of ownership, only claiming that he had purchased it from some one. So the authorities cited by appellant where the state relied upon recent possession alone, unexplained, to show guilt, are not in point. If recent possession was the only circumstance in the case to show appellant’s guilt, then the cases cited would support appellant’s contention. But, there being other cogent circumstances in the case, the court did not err in refusing the two charges.

The court charged the jury the law of circumstantial evidence in language frequently approved by this court, and in a way not complained of by appellant. Appellant introduced evidence that he had purchased cattle about this time from Cannon, Ballard, and others. Cannon and Ballard described the cattle they had sold appellant, and the court instructed the jury: “If you find and believe from the evidence that the defendant, J. L. Law, purchased the one head of cattle described in the indictment, and for which he is now being tried, from C. I. Cannon, John Ballard, Will Duncan, or any other person, or if you have a reasonable doubt as to whether he did so purchase said one head of cattle, you will find the defendant not guilty.” This presented the affirmative matter offered by defendant in as favorable light as the law required.

There are no bills of exception in the record in regard to the introduction of testimony; consequently those grounds in the motion for new trial, complaining of the admissibility of certain testimony, cannot be considered by us. Neither can we review the action of the court in refusing to give several special charges requested, alleging certain remarks to have been made by state’s counsel. No bills are in the record verifying the fact that such language was used as requested; charge alone does not verify that fact.

The testimony of King and Benson show that they saw two head of cattle belonging to the Matador ranch in appellant’s pasture, and in his brand, both of which were taken out and returned to the Matador people. The indictment in this case charged the theft of only one head of cattle, and the state prosecuted appellant for the theft of one red calf, bald face, white running back to its weathers, and on its back; all four feet white; about half or two-thirds of its tail being white, and referred to in the record as the white-tailed calf. As there was evidence that a motley faced calf was also seen in appellant’s possession at this time, the court, at the request of appellant, gave the following charge: “You are instructed that you will not convict defendant for the theft of any other animal except the one the state elected to rely on, the one described as the white-tailed calf, and not for that one unless you believe from the evidence beyond a reasonable doubt that he stole this one.” Having given this charge at the request of appellant, the criticism of the court’s charge in this respect is without merit under the evidence in this case.

Cannon and Ballard testified in behalf of defendant. On cross-examination it was shown they were both under indictment charged with felonies. As this evidence could have been used by the jury for no other purpose than as affecting their credit as witnesses, there was no error in failing to so instruct the jury.

The evidence fully supports the verdict, and the judgment is affirmed.

On Motion for Rehearing.

A motion for rehearing has been filed in this case, and in it is a question raised not heretofore presented to the court. It appears that appellant was convicted in cause No. 120, in the district court of Motley county, of the cause of theft, from which judgment he prosecuted an appeal to this court. While that case was pending on appeal in this court, appellant was tried in this case, and convicted. In passing sentence on appellant in this case, the court ordered that in case the judgment in cause No. 120 was affirmed by this court, then this sentence should not begin until the expiration of the sentence in that case. Before the adoption of article 840 in the Code of Criminal Procedure of 1895, it was held that there was no authority to fix the commencement of a term in the penitentiary at the expiration of another term for which the penalty had theretofore been condemned. Prince v.'State, 44 Tex. 480; Hannahan v. State, 7 Tex. App. 664; Baker v. State, 11 Tex. App. 262. Therefore we must look to that article of the Code to cumulate sentences, and by turning to it we find that it is only after a final conviction that one .term of imprisonment can be made to begin at the expiration of the other. The first case, at the time of this trial, being on appeal and pending in this court, the judgment had not become final, and therefore the court was without authority to order this sentence to begin at the expiration of the first sentence in case we affirmed it, and the sentence is here and now corrected and reformed, and that portion of the sentence which seeks to cumulate the penalty is stricken from the sentence. By striking out this paragraph (the third) of the sentence it will be in the customary form of sentence, and the sentence is so reformed that said paragraph shall have no application, and the sentence shall begin as if no other trial had been had; and it is so reformed.

Motion for rehearing overruled, sentence being reformed.


source: Caselaw Access Project

author: HUFF, C. J.

license: Public Domain

text:
    PAYNE et al. v. ELLWOOD.
    (Court of Civil Appeals of Texas. Amarillo.
    Jan. 17, 1914.)
    1. Adverse Possession (§ 80) — 'Coloe os' Title.
    The owner of a junior survey may acquire title to land covered by a senior survey under the five-year statute of limitations by his adverse holding of land in conflict, even though he only pays taxes upon his own survey, and there is nothing on the ground or field'notes showing conflict, if the field notes and survey of the junior grant covered the disputed strip.
    [Ed. Note. — Eor other cases, see Adverse Possession, Cent. Dig. §§ 463-467; Dec. Dig. § 80.]
    2. Adverse Possession (§ 80) — Color of Title — What is Sufficient.
    Where a deed describes land by section and certificate number, but refers to the patent and field notes, which otherwise designate the land, for the description of the land, the record of such deed is sufficient notice of an adverse holding to the extent of the boundaries in the field notes.
    [Ed. Note. — Eor other cases, see Adverse Possession, Cent. Dig. §§ 463-467; Dec. Dig. § 80.]
    3. Jury (§ 31) — Jury Trial — Bight to.
    In trespass to try title, where the question of disputed boundary was submitted to the jury, but defendant’s claim that his possession of the land in controversy had ripened into adverse title under the five-year statute of limitations was not submitted to the jury, the trial court cannot, after a verdict for plaintiffs on its own finding, under what was claimed to be uncontro-verted evidence, that defendant held adversely under color of title, render judgment for defendant, for that would deprive plaintiffs of a jury trial; the court’s power over the verdict being-limited to the direction of an appropriate verdict.
    [Ed. Note. — Eor other cases, see Jury, Cent. Dig. §§ 20⅜-219; Dec. Dig. § 31.]
    4. Appeal and Error (§ 1177) — Disposition of Case on Appeal.
    Where the Court of Appeals cannot find to its satisfaction that there was no issue presented by the evidence which should have been submitted to the jury, which was not submitted, it cannot render the judgment which should have been rendered below, where the trial court improperly rendered judgment on its own findings on a question not submitted to the jury.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4697-4604, 4606-4610; Dee. Dig. § 1177.]
    5. Appeal and Error (§ 1170) — Reversal— Technical Error.
    Under court rule 62a (149 S. W. x), prohibiting reversals for nonprejudicial error, the Court of Appeals cannot deny a reversal where the trial court, after verdict for plaintiffs, improperly rendered judgment upon its own findings on a matter not submitted to the jury.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 4032, 4066-4075, 4098, 4101, 4454, 4540-4545; Dec. Dig. § 1170.]
    Error from District Court, Hale County; L. S. Kinder, Judge.
    Separate suits by Kate S. Payne and J. F. Sageser against W. L. Ellwood, which were consolidated. Judgment for defendant, and plaintiffs bring error.
    Reversed and remanded.
    L. W. Dalton, C. D. Russell, and Geo. L. Mayfield, all of Elainview, for plaintiffs in error. Mjathes & Williams, of Plainview, for defendant in error.

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

   HUFF, C. J.

The plaintiffs in error, Kate S. Payne and J. F. Sageser, brought separate suits against defendant in error, W. L. Ell-wood; the two cases were thereafter consolidated in the court below by agreement, and the case as repleaded was in the nature of trespass to try title; the action resolving itself into one of boundary, Kate S. Payne showing title to section 9, block D — 10, and J. S. Sageser to section 10, block D — 10, E. L. & R. R. Ry. Co. The defendant owns sections 58 and 59, block 1, R. M. Thompson surveys, which lie west of the two sections owned by plaintiff. The controversy is over a strip of land lying west of the defendant’s fence, and referred to in the record as the Spade fence. The defendant pleaded not guilty, and set up in defense the three and five year statute of limitation. The following agreement was entered into, by which it was stipulated and agreed that it should be part of the evidence in the case:

“First. That plaintiffs have paper title to their respective surveys Nos. 10 and 9, in block D — 10, Hale county, Tex., wherever the same are properly located, subject to defendant’s pleas of limitation, which are to be tried, and that defendant has paper title to his surveys Nos. 58 and 59, block 1, partly in .Hale and partly in Lamb counties, Tex., wherever properly located, subject to plaintiffs’ claim that if located on plaintiffs’ surveys the location is void.

“Second. That defendant Ellwood and those under whom he claims and whose estate he has, have had and held peaceable and adverse possession of the strips of land sued for for more than three years next preceding the filing of this suit, claiming same as parts of surveys Nos. 58 and 59 above mentioned by defendant

“Third. That defendant Ellwood and those whose estate he has, and under whom he claims title, have had and held peaceable and adverse possession in the strips of land sued for, using and enjoying the same, claiming same as parts of said surveys Nos. 58 and 59 above mentioned, and under the deeds to be introduced for a period of more than five years.” ,

The trial court instructed the jury: “The plaintiffs therefore set up and claim title to all of sections 9 and 10, block D — 10, Hale county, Tex., and the defendant sets up and eliams title to all of sections 58 and 59, block 1, Lamb and Hale counties, Tex. The plaintiffs contend that, when their two sections, to wit, 9 and 10, are properly surveyed and located upon the ground, their west boundary line will extend west of what has been testified as the Ellwood' or Spade fence;. that is, the northwest corner of section 10 will extend 381 varas west, and the common corner of 9 and 10 will extend west 344.5 var-as, and the southwest corner of section 9 will extend 307.6 varas west of said fence line. Defendant contends that, when said sections 9 and 10 are properly surveyed and located upon the ground, their west line will not extend west of said fence line at all, and will practically lack a few varas of reaching said line or fence, and he further contends that his sections 58 and 59 extend to and reach said fence line, or about said fence line from the west. The question therefore before the jury for their decision is the proper location upon the ground of the tracts of land owned by the plaintiffs and those owned by the defendant, and, after a proper location thereof, is either in conflict in the boundary lines of them, and, if a conflict, the amount and extent of same.”

After giving in charge the rules by which the jury were to be governed in ascertaining the location of the land, the court instructed: “So far as the evidence in this cause shows, there are no fixed objects, either natural or artificial, upon the ground in any of the sections in block D — 10, by which sections 9 and 10 in said block can be located, and 9 and 10 and the other sections in said block, taking their connections from the four leagues of Sabine county school land, your location of said sections 9 and 10 will therefore depend upon where you locate Sabine county school land. The southeast corner of league No. 1, Sabine county school land, according to its field notes, is described as being a mound of earth and a small rock about 20 miles north and 9 miles west of the southwest corner of No. 1, block A, Lubbock county; said mound being 19 miles and 1,846 varas north, and 9 miles and 19 varas west, of the junction of the Yellow House creek and the north fork of the double mountain fork of Brazos river. The southwest corner of section 1, block A — 1, Lubbock county, is a well fixed and established corner, and its location is agreed to by the parties to this suit. The field notes in the leagues, 1, 3, and 4, of said county school bind call for crossing the. creek known as the north fork of the double mountain fork, and it is contended by plaintiffs that said four leagues of land have been properly located, course and distance from section 1, block A, and by their calls for this creek as surveyed by L. A. White and W. E. Potterfield. This contention is denied by the defendant. Therefore it will be necessary for the jury, in order to locate sections 9 and 10, block D — 10, to first determine the true location of the four leagues of Sabine county school land. According to the field notes E. M. Powell was the surveyor who surveyed the Sabine county school land. Bearing in mind the above instruction, you are therefore instructed that if you find and believe from the evidence that the said four leagues of Sabine county school land should be located upon the ground according to the surveys as made by White and Potterfield, and as contended for by plaintiffs, you will find for the plaintiffs, and the form of your verdict will be, “We, the jury, find the northwest corner of survey No. 10, block D — 10, to be 381 varas west of the. Spade fence, and the southwest corner of section 10, said block, and the northwest corner of section 9, said block, these corners being a common corner, to be 344.5 varas west of said fence and the southwest corner of section 9, said block, to be 307.6 varas west of said fence.’ But if you do not believe from the evidence that the land in dispute should be located as contended for by the plaintiffs, according to White and Potterfield surveys, then you will find for the defendant, and the form of your verdict will be, ‘We, the jury, find for the defendant.’ ”

The jury returned a verdict for the plaintiffs in the form prescribed by the court. The c'ourt rendered judgment thereon after reciting the impaneling of the jury and submission of the case to the jury, and has the following recital: “And the court, after all the evidence was heard, being of the opinion that the undisputed evidence showed that the east line of defendant’s sections of land, Nos. 58 and 59, block 1, extended to the Spade fence, and that the only question of fact to be determined by the jury was the true location of the northwest corner of survey No. 10, all in block D — 10, and the southwest corner of survey No. 9, all in block 10, submitted such question only to the jury, and, the jury having heard the pleadings, evidence, the argument, and charge of the court,” etc., returned into court the verdict as above set out by us, and the judgment then continues: “It is therefore the judgment and decree of this court” that the northwest corner of survey No. 10 is located 381 varas west of the Spade fence and the southwest corner of No. 10, and the northwest corner of No. 9 is located 344.5 varas west of the Spade fence, and the southwest corner of survey 9 is located 307 varas west of said Spade fence, “according to the R. P. Smythe sketch of said surveys, and that plaintiff’s surveys 9 and 10, block D — 10, embraced the land in controversy, and as described in their first amended original petition, and are prior surveys to defendant’s surveys 58 and 59; but, it appearing to the court from the uncontroverted testimony that the defendant’s surveys Nos. 58 and 59, block 1, extend east to the said Spade fence, and it being agreed by all parties that the defendant and those under whom he holds title have held peaceable and adverse possession of the land in controversy, using and enjoying the same, for more than five years preceding the filing of this suit, and claims same as part of said surveys Nos. 58 and 59.” The judgment sets out in other recitals the agreement necessary to prescribe under the five-year statute, and the judgment decreed that plaintiffs, Kate S. Payne and J. S. Sageser, take nothing by their suit, and that the defendant recover the costs, and that he have his execution.

The recitation in the charge given by the court is sufficient designation of the calls in the various surveys and the connections therewith in locating sections 9 and 10, block D — 10, owned by plaintiffs. The calls of the Sabine county school land are for a due northeast, south and west, course. The testimony of the witnesses is to the effect that the west lines of these four leagues as fixed by White and Potterfield do not run due north. The west line of block D — 10 and the west line of surveys 9 and 10 is an extension of the west line from the northwest corner of No. 3, Sabine county school land. It is testified by some of the witnesses that the variation of the west line, and upon which these surveys are run, gives the course west of the line running north, and thereby produces a conflict with the block of surveys of which sections 58 and 59 are a part. The witnesses for plaintiffs claim to have fixed the corners and lines of the Sabine county school leagues by natural and artificial monuments. The maps in the land office and sketch used by the surveyors in locating the three Thompson blocks, of which defendant’s land is a part, then showed that there was a vacancy between these Thompson blocks and block D — 10 and the Sabine county school leagues. Block D — 10 was surveyed by E. M. Powell, deputy surveyor of Jack land district, January '23,1879; block T, T. A. Thompson, was surveyed by Sam L. Chalk, deputy surveyor of Baylor district, October 13, to 16, inclusive, 1882. Surveys 58 and 59, owned by the defendant, are a part of block 1, R. M. Thompson survey. The evidence also shows that block 1, R. M. Thompson, was surveyed by Chalk October 23, 1882, calling for block T. The maps and testimony also show block A, south of block 1 and block B, both for R. M. Thompson, north of block T, were surveyed, by whom is not shown, but is treated by both parties as having been surveyed about the same time as the other two blocks. These several blocks call for the capitol leagues lying west. The leagues for the capitol lands were marked by corners which are found and identified so that the west line of the Thompson blocks are fixed on the ground. There were also found corners in the Thompson block which were identified by witnesses.

It also appears that in 1886 the witness A. S. Howren surveyed out the Thompson blocks and located the east line thereof for the purpose of erecting the Spade fence. He testified as to the methods by which he did this, and his testimony, together with that of Twichell, and Williams, show that they found the capitol league corners and identified comers in the Thompson blocks. The testimony indicates the fence on the east of the blocks was erected where Howren claimed the east line, and was placed on that line at that time. The testimony is reasonably certain that 58 and 59 had no marked corner or lines for their east boundary, and their position was to be ascertained by course and distance from either the capitol leagues or from identified corners elsewhere in the Thompson blocks. Some of the evidence introduced by the defendant shows that in running course and distance from the identified corners in the capitol leagues or in the Thompson block the Spade fence is not reached by estimated from 20 to 49 varas, while some place the east line of said sections east of the Spade fence some distance. The Thompson blocks are eight miles wide by the calls in the field notes. On the north end of said blocks Howren testified he gave them their complement eight miles; at the south end of the blocks he found them 200 varas in excess of their call in width. All the blocks together are 34 miles long. The defendant accounts for the east line of sections 58 and 59 not reaching the fence by making a mathematical demonstration, or “by a simple proposition of 34 is to 200 as 8 is to x; that the excess at the surveys in question is 48 varas, or practically what Mr. Howren said the fence was east course and distance from the capitol league on the west.” In order to demonstrate the proposition, a straight line must be drawn from the northeast corner of the Thompson blocks to the southeast comer of the same, and there should be no offsets, and the line should not vary. The evidence is not clear on that point; that is, that the line is a straight one and did not vary. The plaintiffs in error insist that the maps and field notes in existence and in use at the time the surveys were made and filed in the land office show no conflict of the surveys in question and evidence the fact that it was the intention and purpose to locate the Thompson blocks out of conflict with block D — 10.

It was shown by the testimony that the defendant, and those under whom he claimed, had paid all the taxes, on suryeys 58 and 59, block 1, for each year prior to 1900 to 1911, inclusive, and that he had receipts therefor. Plaintiffs also introduced patents from the state of Texas to Louis O. Nelson, assignee of R. M. Thompson, to sections 58 and 59, in block 1, dated June 13, 1883, and field notes given in the patent were the same as the field notes made by the surveyor at the time of surveying the land. He also introduced in evidence the deed of Dudley H. and John W. Snyder to Isaac Ell wood, dated June 15, 1891, conveying surveys 58 and 59, block 1, together with other lands. The patent and deed were recorded in the deed records of Lamb county, June 20, 1891; and they also introduced in evidence a deed from Louis O. Nelson to D. H. and John W. Snyder, dated the 18th day of December, 1885, which deed was fully recorded on the 14th day of April, 1886. It was agreed that W. L. Ellwood, tlie defendant, is sole legatee and devisee under tlie will of Isaac Ellwood, deceased.

This statement is perhaps sufficient to give a general idea of the issues involved and discussed by us.

Plaintiffs in error complain of the judgment of the court because it is contrary to the law and evidence and unsupported by either, and not supported by the findings of the jury, that the jury found plaintiff’s land covered the land in controversy and as claimed by them, and that the defendant had no title to the land in dispute, and therefore could not prescribe by the statute of limitation. In treating the case we cannot set out the several assignments because of their length, but will discuss the issues presented by them without referring to them specifically. Under the verdict of the jury the plaintiffs were entitled to judgment for the land in controversy unless sections 68 and 69 were in conflict with it or covered by it. This could only be ascertained by finding their true location by course and distance from identified corners or points in the block of which they were a part or from adjacent surveys from which their location could be ascertained.

It is urged by plaintiffs in error that the owner of a junior survey cannot acquire title to land covered by a senior survey under the five-year statute of limitation when he pays taxes only on his own survey and there is nothing in the field notes nor on the ground showing conflict in the surveys. In support of this proposition they cite Hull v. Woods, 14 Tex. Civ. App. 590, 38 S. W. 256; Hoen v. House, 31 S. W. 83; Dutton v. Thompson, 85 Tex. 115, 19 S. W. 1026; Garrison v. Arnett, 126 S. W. 612; Spence v. Johnson, 3 Tex. Civ. App. 627, 22 S. W. 1042; Williamson v. Brown, 49 Tex. Civ. App. 402, 109 S. W. 412.

In the case of Hull v. Woods, supra, the junior survey, Wade Hudson, called for the senior survey, Follett. The court there said in that case: “Hence we must and do find that there is no conflict between the two surveys,” and that the taxes paid were on the 240 acres of Wade Hudson survey, and upon no part of Eollett survey, and therefore did not comply with the statute.

In the case of Hoen v. House, supra, the court said: “The case is not analogous to that of Harrison v. McMurray, 71 Tex. 122 [8 S. W. 612], where there was a conflict in the original location of the two grants. Here there was no such conflict, but only an excess in the Dunn.”

In Dutton v. Thompson, supra, the land in controversy was situated on section 182. The defendant there rendered and paid taxes on 9 ¾'acres out of section 180. It is there held that, though the defendant may have intended to pay taxes on the land claimed by him, he had not done so, and could not prescribe under the statute of limitation. The location and issuance of a patent by the state of Texas on sections 58 and 59, as between the state and the patentee, was not void, though it may be relatively void as respects the rights of third persons. The junior grant is a sufficient one under which the owner thereof may prescribe under the three and five year statute of limitation. Grigsby v. May, 84 Tex. 240, 19 S. W. 343; Converse v. Langshaw, 81 Tex. 275, 16 S. W. 1031; Williams v. Brown, 49 Tex. Civ. App. 402, 109 S. W. 412; Gallan v. Town of Goliad, 32 Tex. 776; League v. Rogan, 59 Tex. 432.

In Grigsby v. May, supra, Judge Stayton for the court said: “In the case of the grant of land covered by a prior valid grant, the state has no right to the land, and hence the patent of itself conveys no right; but it would not be claimed that an adverse possession for three years under the latter grant would not confer complete right to the land, would not confer title, and in the sense of superior right to the land. The cases of League v. Rogan, 59 Tex. 427, and Burleson v. Burleson, 28 Tex. 417, illustrate the fact that it is not necessary for the purchaser to whom a patent issues to be entitled to receive the grant in order for the patent to constitute ‘title’ within the meaning of the statute applicable in this case. In the case first above named the patentee had no right to the land when the patent issued, yet it will not be contended that the statute of limitations of three years did not bar the right of the person having the superior right because .the owner of the certificate by virtue of which the land was patented.”

The case of Gallan v. Town of Goliad, supra, was one in which it was held that a grant from a Mexican government might be presumed and protected by the Constitution of the republic and the state, yet if the land was subsequently patented to another party the junior grantee could prescribe under the three-year statute. The court there said: “This defense is available even when the state itself had made a grant of land to different parties. Conflicting grants are necessarily implied in their invocation of the plea of the statute, and both titles cannot be paramount. Each is title against the government, and valid as between the parties to it, but relatively they are only ranked by age. The government by its general policy in the enactments of the statute of limitations has only made their relative validity depend upon the conduct of the grantees themselves in taking and holding possession. If the junior grantee gets the possession and holds adversely for the time prescribed for limitation, it becomes secured against invasion or claim of the elder grantee. It is true, as a matter of abstract justice, when the state has once granted a part of her public domain to one of her citizens she has no right to grant it to another. But such double grants are frequently made by the state, not in disregard of the obligations of the public faith, but for want of correct and accurate information in regard to the locality of the land sought to be appropriated by each grantee, and in such case the statute of limitations or statutes of repose must regulate the relative rights of the parties.” This case is cited with approval in League v. Rogan, supra, upon a similar question.

We, therefore, think if the jury had found that the field notes of sections 58 and 59 included the land in question, or so much thereof as was included within their boundaries, then the defendant could prescribe under the statute of limitation.

We also think that a description of the land by section and certificate numbers, name of the grantee, and the like is sufficient in the deed where the patent and field notes otherwise designate the land. Recording such deed would be sufficient notice of an adverse holding to the extent of the boundaries in the field notes set out and described in the patent and field notes in the surveyor’s office.

The court having failed to submit this issue to the jury, and having determined the question as upon uncontroverted facts, it is urged was error. Under the decisions of the Supreme Court of this state, as we understand them, we believe plaintiffs’ proposition must be sustained. This will therefore reverse the judgment of the trial court; and, as we understand the facts in evidence, there was an issue raised by them whether defendant’s field notes covered all the land in dispute. We cannot, with that degree of certainty required^ ascertain the location of the defendant’s true east boundary line so that we would feel warranted in rendering such judgment as should have been rendered in the court below. Possibly we may have the power to render such judgment as should have been rendered in the trial court if we could say or find to our satisfaction that there was no issue presented by the evidence which should have been submitted to the jury (Ry. Co. v. Strycharski, 92 Tex. 1, 37 S. W. 415; Henne v. Moultrie, 97 Tex. 216, 77 S. W. 607); but, being unable from our examination of the record at this time to say there was no testimony upon which the issue should be submitted to the jury, we do not feel authorized in rendering a judgment. Not being able to render such judgment, we must reverse the ease, as we understand the law. Assuming in this case that the evidence established that the calls in the field notes of sections 58 and 59 included the land involved in the suit, yet, under the decisions of our Supreme Court, we do not believe the trial court had the right to find that fact and render judgment on such finding. The verdict in this case was for the plaintiff. The court, however, disregarded that finding, and upon its own findings rendered judgment for defendant. Ablowich v. Bank, 95 Tex. 429, 67 S. W. 79, 881; Silliman v. Gano, 90 Tex. 645, 39 S. W. 559, 40 S. W. 391; Moore v. Moore, 67 Tex. 293, 3 S. W. 284; Ry. Co. v. Watson, 13 Tex. Civ. App. 555, 36 S. W. 290. In. Davis v. Pullman Co., 34 Tex. Civ. App. 621, 79 S. W. 635, it is said: “In jurisdictions where the practice obtains of entering judgments non obstante veredicto, the general "rule is that a motion by the plaintiff to enter such a judgment will only be entertained when the verdict is for the defendant upon the facts that present no defense. Brown v. Rentfro, 57 Tex. 332; Templeman v. Gibbs, 25 S. W. 736. * * * In Texas it is made the duty of the court to enter its judgments in conformity with the verdict, whether it be correct or not.” “When a jury has been demanded by either party, he is entitled to have every material issue made by the pleading and the evidence submitted to the jury, and the trial court cannot enter a judgment upon a verdict which fails to pass upon any material issue submitted to the jury, unless it be in case of a special verdict, which is provided for by statute.” Ablowich v. Bank, supra. If the facts were undisputed, as stated by the court in the judgment, that the field notes of defendant’s land included the land in question, and that defendant had been in possession of the land for five years under deed duly recorded, paying taxes thereon, then the court would have had power to instruct a verdict for the defendant There was no agreement by the parties or admission in the pleadings that the calls in the field notes of sections 58 and 59 included the land in dispute. What the field notes included had to be determined from all the facts in evidence.

The defendant in error insists that this is a case in which we should apply rule 62a (149 S. W. x). As will be observed from reading the statutes and the Constitution of the state, the right to have a jury pass upon the issues or rights of parties is guaranteed to every citizen. The courts have strictly construed these statutes, and, where the trial court has deprived a party litigant of the right of trial by jury upon any issue which he has sought to have submitted and passed on by a jury, have invariably reversed the case, even though no injury was shown. The Supreme Court, in the recent case of Railway v. Beasley, 155 S. W. 183, said, “The Supreme Court cannot, by rule, set aside a statute,” and further held that “rules must bé held to harmonize with the statute and opinions of the Supreme Court,” Whatever may be our power to render a judgment in this court such as should have been rendered in the court below, we must nevertheless, as we understand the decisions where a party has been deprived of a trial by a jury, reverse the case, and, as suggested above, we are not able from our reading of the evidence to render such judgment' as should have been rendered in the court below.

We- will take occasion, to say at this time that we have had much difficulty in understanding the testimony of several of the witnesses, for the reason that they appear to have been testifying from maps before them. Such expressions as “here,” “there,” “along here,” and “this point,” and like expressions are not understood by us as to the points referred to, and we were unable, from the context in which the words were used, to locate just the points the witnesses were then testifying about. It was doubtless clear to the trial court, jury, and counsel, but it is not so to us.

For the reasons above stated, the case will be reversed.


author: McMEANS, J.

text:
    MACKAY TELEGRAPH-CABLE CO. v. BAIN et al.

    (Court of Civil Appeals of Texas. Galveston.
    Dec. 22, 1913.
    Rehearing Denied Jan. 8, 1914.)
    1. Gaming- (§ 17) — Dealing in Futures— “Hedging.”
    Pen. Code 1911, art. 536, prohibits the dealing in futures of cotton, etc., and article 539 includes within that designation the purchase of cotton to- be delivered in the future without intention of the purchaser that the cotton should he delivered, but article 543 permits it to be shown as a defense, in a prosecution for violating the statute, that the transaction was a “hedging” contract between a party in the state and parties without the state. Held, that persons doing business in Texas could lawfully hedge against loss on cotton bought by them by the sale through brokers of cotton futures in Liverpool, England, so that a telegram advising the brokers in England to hedge on behalf of such persons was not in furtherance of an illegal act; “hedging” contracts being where one • buys certain cotton at the current price and sells an equal amount for future delivery, so as to protect himself from loss due to fluctuation in the market.
    [Ed. Note. — For other cases, see Gaming, Cent. Dig. §§ 29-35; Dec. Dig. § 17.]
    2. Telegraphs and Telephones (§ 73) — Action eór Misdelivery — Jury Question— Contributory Negligence.
    In an action against a telegraph company for damages for improperly transmitting a telegram to brokers in England directing the sale of cotton futures, whether plaintiffs were guilty of contributory negligence in not telegraphing to England on Saturday immediately after discovering the mistake in the telegram sent instead of waiting until Monday to correct the error held a jury question.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 76; Dec. Dig. § 73.]
    3. Telegraphs and Telephones (§ 74) — Error in Transmission.
    Where, in an action against a telegraph company for damages from failure to properly transmit a telegram to Liverpool brokers directing the sale of 800 bales of cotton for future delivery to cover fluctuations in price of 800 bales actually purchased in the state, it appeared that if the sale had been made on Monday plaintiffs’ loss would have been $200, while they gained $510 by having meanwhile sold futures on another market to protect themselves from loss from the mistake in the telegram, it was error not to require a finding for defendant, if plaintiffs were not entitled to recover more than the difference between the Liverpool markets on Saturday and Monday, which was less than plaintiff’s profits on the sale on the other market,' and to instruct that plaintiffs could recover the difference between the Liverpool prices on Monday and on Saturday less any sum they received in protecting themselves by selling on the local markets.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 77; Dec. Dig. § 74.]
    4. Appeal and Error (§ 1068) — Harmless Error — Instructions.
    The giving of the instruction and failure to instruct was not so prejudicial as to require a reversal of the judgment for plaintiffs, the jury having, in effect, found that plaintiffs were not negligent in failing to make a sale on Monday to protect themselves.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4225 — 1228, 4230; Dec. Dig. § 1068.]
    Appeal from District Court, Harris County; Wm. Masterson, Judge.
    Action by S. J. Bain and another against the Mackay Telegraph-Cable Company. From a judgment for plaintiffs, defendant appeals.
    Affirmed.
    Andrews, Ball & Streetman, of Houston, for appellant. B. F. Louis, of Houston, for appellees.

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

       writ of error denied by Supreme Court.

   McMEANS, J.

The following statement of the nature and result of the suit is taken from the brief of appellant: “This suit was brought against Mackay Telegraph-Cable Company by S. J. Bain and T. D. Warley, partners composing the firm of Bain & War-ley, to recover damages charged to have been suffered by them as the result of the alleged erroneous transmission by defendant of a telegraphic message.

“The plaintiffs alleged, in substance: That on, prior to, and after, September 22, 1911, they were engaged in the cotton business at Houston, Tex., and were selling cotton, among other persons, to the firm of Cunningham & Henshaw, of Liverpool, England, who had an agent in Dallas. That, to defendant’s knowledge, it was usual and customary for purchasers of cotton to ‘hedge’ against fluctuations in the market by selling futures against spots bought. That, to defendant’s knowledge, the fluctuations in the market price of cotton were frequent, and were likely to be large. That at the time stated, plaintiffs, in the usual course of their business, had in operation an arrangement with Cunningham & Henshaw, whereby it was agreed that whenever plaintiffs should report to Cunningham & Henshaw the purchase of a definite number of bales of cotton, and request that the same be covered, that firm would thereupon sell futures upon the Liverpool exchange against the spots bought, and that Cunningham & Henshaw should pay plaintiffs for all cotton so reported a price which was fixed by adding a certain definite number of points or cents per 100 pounds to the market price at which said futures were sold. That on September 22, 1911, plaintiffs had on hand 800 bales of cotton, which they desired to sell Cunningham & Henshaw under the terms of said agreement, and that to effect the sale they delivered to defendant at its Houston office, for transmission and delivery to Cunningham & Henshaw at their Dallas office, a written message, Substantially as follows: ‘Bought 800 bales. Cover and report early.’ That defendant delivered to the addressee of said message, substantially as follows: ‘Bought 800 bales, dome and report early.’ That, by the exercise of due diligence, defendant could have delivered the message in the form originally written, and that, had it been so delivered, Cunningham & Henshaw would have covered the 800 bales on the Liverpool exchange at the opening thereof on the morning of September 23, 1911, when the price of such futures was 5.72 pence, or 11.44 cents per pound, and would thereby have fixed the price which plaintiffs would have received fpr the 800 bales. But, by reason of defendant’s negligence in so changing the message, the purchase was not covered on that day, but remained unfixed until the opening of the Liverpool exchange on September 26, 1911, when the market price.of futures was 5.57 pence, or 11.14 cents, per pound. That plaintiffs’ price was accordingly less by $1.50 per bale. That the cover executed on September 26, 1911, was effected as soon as possible, and within a reasonable time, after plaintiffs learned that defendant had not correctly delivered the message. That they learned of the error on Saturday, September 23, 1911, when the Liverpool exchange was closed for the day. That they covered the cotton on the New Orleans exchange until Monday, September, 25, 1911, when, upon the sale of a cover at Liverpool by Cunningham & Henshaw, they closed out the New Orleans transaction by buying in the futures previously sold there. That they profited $510 by the New Orleans transaction, ‘which sum, plaintiffs say, in the event so required, may be credited upon said loss occasioned plaintiffs.’

“Defendant answered by general demurrer, general denial, and the following special pleas: (a) That plaintiffs were guilty of contributory negligence in writing the message illegibly; (b) that plaintiffs were guilty of contributory negligence in failing to cable to Liverpool on Saturday, September 23, 1911, as soon as they discovered the alleged error, which would have been in ample time to have the cover sold at the opening of the Liverpool exchange on Monday, at which time there had been only a slight decline in the market; (e) that the transactions sought to he furthered and concluded by the message were illegal, gambling transactions, and that the transactions on the Liverpool and New Orleans exchanges ‘constituted a continuing effort on the part of the plaintiffs to make a profit by wagering or betting on the market price of cotton at some future date, all of which is unlawful and illegal’; (d) that, for a valuable consideration, plaintiffs had agreed with defendant that it should not be liable for errors in obscure messages, and that this message was obscure; (e) that the dealings of plaintiff on the New Orleans and Liverpool exchanges constituted one continuing transaction, and that, if plaintiffs were entitled to recover anything, defendant was entitled to have the $510 profit made on the New Orleans exchange applied toward reducing the damages.”

The case was tried before a jury, and resulted in a verdict and judgment in favor of plaintiffs for $690, from which the defendant has appealed.

The appellant requested the court to instruct the jury to return a verdict in its favor, and the refusal of the court to do this is made the basis of appellant’s first assignment of error, and the first and second propositions presented thereunder are as follows: “Appel-lees’ pleadings and the uncontroverted evidence show that by the terms of appellee’s agreement with the firm of Cunningham & Henshaw the price to be received by appel-lees for spot cotton sold by them to Cunningham & Henshaw was, in each instance to be fixed and determined, as appellees knew, by the price of a sale of ‘futures’ effected by Cunningham & Henshaw, and ordered and directed by appellees; that, without such order and direction by appellees and consequent sale of ‘futures’, the price could not be fixed; that the message in question was sent by appellees for the purpose of ordering such sale of ‘futures,’’ and therefore that the whole transaction, including the sale of spot cotton by appellees to Cunningham & Henshaw, was illegal and contrary to public policy, and appellant is not liable in damages for the loss, if any, suffered by reason of the manner of reading, transmitting, and delivering the message. The contract of sale between ap-pellees and Cunningham & Henshaw was shown by the pleadings and the Undisputed evidence to have contemplated and been in furtherance of the illegal business of dealing in cotton ‘futures,’ and required appellees to engage and affirmatively participate in such illegal transactions before any sale by them, under its terms, could be completely executed, and was therefore void, and appellant incurred no liability by preventing appellees from making a profit thereunder.”

The plaintiffs were engaged in buying and selling cotton in Houston, Tex. Cunningham & Henshaw were cotton buyers, doing business in Liverpool, England, and had an agent and representative in Dallas, Tex. Frequently plaintiffs, after they had bought cotton, would sell the same to Cunningham & Hen-shaw through their Dallas agent. The price of cotton thus sold by plaintiffs was fixed by the price at which futures could be sold in Liverpool, with an agreed number of cents per 100 pounds added, and the amount thus arrived at would be the price Cunningham & Henshaw would pay plaintiffs. It was usual, when plaintiffs had on hand a number of bales of cotton which they desired to sell to Cun-ingham & Henshaw, to report by telegraph the number of bales to be sold; and if they desired the price to be then fixed they would add in the message “cover and report early.” Upon receipt of such a telegram, the Dallas agent of Cunningham & Hen’shaw would, by cablegram, sell in Liverpool an equal number of bales, and the price for which the futures were sold, with certain points added, would fix the price. This character of transaction is what is generally known as “hedging.” Upon this point, H. A. Bardswell, who on September 22,1911, was the Dallas agent of Cunningham & Henshaw, testified as follows: “I had an arrangement with Bain & Warley relative to the purchase of cotton from them, the agreement being to buy from Bain & Warley at certain number of points, according to grade and staple of cotton on cover months in Liverpool, but I would not cover this cotton without instructions from Bain & Warley. * * * If I had received that telegram to cover from Bain & Warley, I would have sold an equal number of bales at the opening on the Liverpool cotton exchange the next morning, thus determining the price that I was to pay Bain & Warley. The price which Bain & Warley should receive for the cotton was fixed by the agreed upon number of points on the cover which we received in Liverpool the next morning. In other words, the agreed upon number of points added to the cover which we received from our Liverpool house the following morning. * * * Should I have received the message reading, ‘Bought 800 bales, cover and report early,’ I should have cabled to Liverpool, ‘Cover 800 bales; Bain Warley.’ I would have cabled that Friday night. If I had cabled to that effect, Liverpool would have replied, ‘Have sold 800 bales’ at whatever the opening price was the next morning. * * * The price which Bain & Warley would have received had I so cabled to Liverpool Friday night would have been fixed by the number of points referred to previously as agreed upon, added to the cover received from Liverpool. * * * Their price was fixed by the addition, in case the sale was covered or hedged, of a certain number of points to the market price of the futures at which the cover or hedge was made. In case the sale’ from Bain & Warley to my firm should not have been covered or hedged, the price was not fixed. Their price was not fixed until the hedge was sold in Liverpool. If they had wired me offering to sell me 1,000 bales of cotton, but not instructing me to cover or hedge it, they would leave thé price unfixed until they should instruct me td cover. Until we get instructions from Bain & Warley to cover in Liverpool, the price is not fixed, as far as Cunningham & Henshaw are concerned. I mean the price that Cunningham & Hen-sháw would pay Bain & Warley. * * * I intended to testify to the fact that the price is fixed by the sale of cotton futures plus the number of points contracted for .with Messrs. Bain & Warley, which differ, according to grade and staple. When such futures were bought or sold by Cunningham & Henshaw on the Liverpool market, they acted in that matter, for themselves, under instructions from Bain & Warley. * * * Such transactions as these, where futures are sold, as in this instance, are simply ‘hedging’ propositions! Cunningham & Henshaw contract to buy so much spot cotton at a specified price, and then sell futures to protect themselves against a fall in the market. * * * When the spot cotton is sold in Liverpool, the ‘hedges’ are bought in. * ■* * The settlements on these futures aré made weekly, according to whether the market advances or declines, and when the spot cotton, to protect which these futures were sold, arrives in Liverpool, and is sold, then the futures are bought in. I do not know of any instances in which such future contracts so bought by Cunningham & Henshaw at the instance of Bain & Warley were settled by the receipt or delivery of any real cotton.”

It appears from the evidence that on September 22, 1911, plaintiffs had on hand 800 bales of cotton, which they desired to sell to Cunningham & Henshaw in accordance with the existing agreement, and, in pursuance thereof, plaintiffs on said day delivered to the defendant Telegraph-Cable Company, at its office in the city of Houston, for transmission and delivery to said Cunningham & Hen-shaw at their Dallas office, a message in the following language: “Bought 800 bales, cover and report early.” This message was changed in transmission, so that when it was delivered to the addressee it read as follows: “Bought 800 bales, come and report early.” It was shown that the price of cotton for October-November deliveries on the Liverpool exchange on Saturday, September 23, 1911, was 11.44 cents per pound, that on Monday, September 25th, the price was 11.38 cents per pound, and on Tuesday, September 26th, it was 11.14 per pound; that, had the telegram - been correctly transmitted, Cunningham & Henshaw would have “covered” oh Saturday, September 23d, and the price which plaintiffs would have received for the 800 bales would have been 11.44 cents per pound, but, by reason of the incorrect transmission, the cover was not made until Tuesday, the, 26th, when the price was 11.14, whereby plaintiffs lost $1.50 on each bale sold. When plaintiffs learned.on Saturday that’ the telegram had been incorrectly transmitted, they “covered”'or hedged by buying futures on the New Orleans market, whereby .they made $510, which was deducted in the judgment from the losses sustained by them by reason of the cotton not being covered by Cunningham & Henshaw on Saturday. Bain ¿’Warley, the appellees, were not interested in any way in the purchase of futures by Cunningham & Henshaw as a hedge against spot cotton appelles sold them, further than to have the price they should receive therefor fixed.

Appellant contends that, as the dealings in futures where there is no intention of making actual delivery are against public policy and illegal, one who negligently prevents the consummation of such illegal act cannot be held liable for any damages that may result from the failure of the illegal transaction to result in profit. In other words, applying the principle to the facts of this case, the negligent failure of appellant to correctly transmit the telegram which resulted in damages to appellees is not actionable, because the telegram was sent in furtherance of, or to aid in, a transaction which was illegal; and cites many cases in support of this contention. If it be conceded that the selling of cotton for future delivery, where it was not contemplated that any cotton should be actually delivered, or, in other words, dealings in futures, such as the transaction attacked in this case was shown to be, was in violation of the laws of this state or contrary to public policy, then appellant’s contention is unquestionably correct. Articles 536 and 539 of the Penal Code prohibit the dealing in futures in this state; and under this statute a purchase of cotton to be de-' livered in future,, when it was not the bona fide intention of the purchaser at the time of the transaction that the cotton should be delivered, is expressly prohibited. But it is. only to such transactions as are to be performed within this state that the statute applies,' for, by article 543, Penal Code, it is 'expressly provided that it may be shown in- defense of any prosecution for violation of this law that the transaction out of which such prosecution arose was a hedging contract between the parties in this state and a party or parties without this state. By “hedging” contracts, as we understand them, is meant that, .where a party buys a given number of bales of cotton at the price current on the date of purchase, and sells an equal number of bales for future delivery, or “futures,” he thereby protects himself against loss due to fluctuation in the market, for, if the price of cotton goes down he gains on futures, and if prices advance, he loses on futures, but, in either event, he is secure in the profits he has gained on the price of the cotton at the time he purchased it. In common parlance, he sells futures to hedge against loss in the purchase of spots. These hedging contracts are not permitted by law to be made within this state, but are excepted by article 543, where the transaction is between a party in this state and a party without this state; hence, as we construe the law, it was not illegal for Cunningham & Henshaw, doing business in this state, to hedge against loss on cotton bought by them in this state by the sale of futures in Liverpool, and, this being true, the act of appel-lees in advising them by telegram to cover was not in furtherance of a transaction denounced by our laws.' It cannot be said to be in violation of public policy, because the Legislature has declared the public policy of this state in that regard by expressly exempting from prosecution parties engaged in such transactions.

By their third proposition under the first assignment of error, appellant contends that the “undisputed evidence showing that the profits of appellees on the New Orleans transaction was $510, that their loss up to the opening of the Liverpool market on Monday, September 25, 1911, was $240, and that by the terms of the contract between them and Cunningham & Henshaw appellees’ price could be fixed only by a cover on the Liverpool exchange, which could have been effected on Monday’s opening by a cable sent at any time on Saturday, September 23, 1911, after appellees learned that the message had not been transmitted as they intended; the negligence of appellant, if any, as alleged by appellees, could not, as a matter of law, have been the proximate cause of any loss suffered by appellees after Monday, September 25, 1911, and the loss, if any, suffered by them up to and before that time had been more than balanced by the profits they made in the New Orleans transaction; and appellees consequently had suffered no legal damagp úp to the date last mentioned, and the peremptory instruction in favor of appellant should have been given to the jury.”

Bardswell, the 'Dallas agent of Cunningham & Henshaw, testified that when he received appellees’ telegram saying that they had bought 800 bales, “come and report early,” they replied by telegráin as follows: “Yours received. We confirm 800 on call.” This witness explained that by “We confirm 800 on call” was meant that the price would not be fixed without instructions from appel-lees. “That is a technical phrase signifying that I had no instructions to cover, and would not cover, and so would not fix their price until I did receive further instructions to cover.” Appellees discovered on Saturday, September 23d, that the telegram had been incorrectly transmitted, and that their price had not been fixed by a cover on the day before, when they at once covered on the New Orleans market, and out of this transaction they made $510, and that they did not have time on Saturday, after they learned that the cover had not been made, to cover in Liverpool before the. close of the cotton exchange on that day, and that on the next day, Sunday, the exchange was not open, so that a cover could not be made on that day, but that on Monday morning at .9:10 o’clock a cablegram was sent to Cunningham & Hen-shaw, at Liverpool, to make the cover, but, on account of a storm on the ocean which interfered with the workings of the wires, the cablegram did not reach them until after the close of the exchange on that day. The difference in time in Liverpool and Texas is about six hours, so that at 9:10 a. in. in Texas it would be 3:10 p. m. in Liverpool. The testimony does not show at what hour the Liverpool cotton exchange closed for the day, or, if it does, the evidence is not pointed out in appellant’s brief. The evidence shows that the loss appellees would have sustained had the cover been made on Monday was ,$240. If appellees had caused the cablegram to be sent on Saturday, the cover would have been made on Monday at the opening of the cotton exchange. Ordinarily a cablegram can be sent from Houston or Dallas to Liverpool and an answer received in 10 or 16 minutes. Sometimes the dispatch may be sent and answer received in less than 6 minutes. The point made by the assignment now under discussion it that appellees were guilty of negligence, as a matter of law, in waiting until Monday to send the cablegram to cover instead of sending it on Saturday. As before stated, the evidence does not show the hour the exchange closed on Monday, but, assuming that it closed at 4 o’clock, appellees had 60 minutes from the time the cablegram was sent and before the exchange closed to cover on that day, and ordinarily this could have been done in 10 or 15 minutes, or possibly a shorter time. That the cablegram sent at 9:10 a. m. did not reach Liverpool in time was due to no fault on the part of ap-pellees.

We cannot say, under these facts, that appellees were guilty of contributory negligence, as a matter of law, in not sending or causing the cablegram to be sent on Saturday. The testimony was sufficient to raise the issue of such negligence, and the determination of the issue by the jury is conclusive upon us.

By its fourth proposition under the first assignment, appellant contends that appellees were guilty of contributory negligence, as a matter of law, in writing the telegram to Cunningham & Henshaw so that the message could as easily be read “come” as “cover.” If the word in question as written by appellees in the telegram looked as much like “come” as it did like “cover,” appellees might be held to be guilty of negligence, as a matter of law, in so writing it. The original message is sent up with the record in this case, and from an inspection of it the word appears to be “cover” and not “come.” It would be a careless reader indeed who would pronounce it “come.” The first assignment and the several propositions thereunder are overruled.

There is no merit in the second assignment of error, which complains that the tenth paragraph of the court’s charge is upon the weight of the evidence and misleading in the several particulars pointed out in the propositions asserted thereunder, and the assignment is overruled without further comment. Nor does the third assignment point out reversible error, and it and the several propositions thereunder are overruled.

In the eleventh paragraph of the court’s charge, the jury was instructed as follows: “In this connection you are further charged that, if you find for plaintiffs, and further find that in the exercise of ordinary care plaintiffs could and would have procured their 8.00 bales of cotton to have been covered, or the price fixed upon the opening of the Liverpool cotton exchange on Monday, the 25th of September, 1911, then your verdict will be for the plaintiff in an amount equal to the difference between the opening price on the Liverpool Cotton Exchange on Monday, September 25, 1911, and the opening price on said exchange oh the Saturday preceding, less such sum they received in protecting themselves from loss.”

It is complained in the fourth assignment of error that the giving of this charge was reversible error, because the jury were thereby instructed that, in the event they thought ordinary care required appellees to have the cover sold on Monday, they should find for appellees in a sum equal to $240 less $510.

Appellant requested the court to charge the jury as follows: “If you believe from the evidence that the plaintiffs are not entitled to recover more than the difference between the opening of the Liverpool market on Saturday and the opening thereof on Monday, the profit of plaintiffs in New Orleans wipes that out, and you should return your verdict for defendant.” The refusal to give this charge is made the basis of appellant’s fifth assignment of error.

It seems to have been assumed by both parties on the trial that appellant was entitled as a credit on the amount of damages its failure to correctly transmit the telegram has caused the appellees by the amount ap-pellees profited by its cover in New Orleans. Assuming that it was entitled to this credit, for this is a matter we are not called upon to decide, we think the court, instead of telling the jury that, in the contingency stated in the charge, the appellees would be entitled to recover the difference between the opening price at Liverpool on Monday and the opening price on the Saturday preceding, less such sum they received in protecting themselves, should have instructed them that in such contingency to find for defendant. The testimony shows that if the cover had been made on Monday appellees’ loss would have been $240, and that appellees had protected themselves by cover in New Orleans, wherein they gained $510. If their loss would have been $240, and their gain $510, it was not possible to subtract the latter from the former.

We cannot see, however, that this charge was so misleading and prejudicial as to require a reversal. Certainly the jury could not understand that after the subtraction of a greater from a lesser sum, which cannot be done, there would be a balance for which a judgment should be rendered. The special charge was a proper one to be .given under the facts, but the error in not giving it is cured by the verdict, for it is clear that the jury did not find appellees guilty of negligence in failing to make the cover on Monday, but based their verdict on the price of futures on the opening of Liverpool cotton exchange on Tuesday. They must have believed and found, therefore, that appellees were not guilty of negligence in failing to make the cover on Monday, and, this being true, the giving of the special charge would have availed appellant nothing. The assignments are overruled.

We have examined the remaining assignments of error urged by appellant, and are of the opinion that none of them points out reversible error. We conclude that the judgment should be affirmed, and it has been so ordered.

Affirmed.


author: WILLSON, C. J.

text:
    TRIM v. PLANTERS’ COTTON OIL CO.
    (Court of Civil Appeals of Texas. Texarkana.
    Jan. 15, 1914.)
    Appeal and Error (§, 387) — Perfection op Appeal — Bond.
    The requirement of Rev. Civ. St. 1911, art. 2084, that an appeal bond be filed within 20 days after the expiration of the term at which the judgment was rendered must be complied with in order to give the appellate court jurisdiction, and, if not followed, the appeal must be dismissed.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2064-2070; Dec. Dig. § 387.]
    Appeal from District Court, Fannin County; Ben H. Denton, Judge.
    Action between F. F. Trim and the Planters’ Cotton Oil Company. From a judgment for the latter, the former appeals.
    Appeal dismissed.
    McReynolds & Hay, of Sherman, for appellant. Cunningham & McMahon, of Bonham, for appellee.

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

   WILLSON, C. J.

It appears from the record that the judgment appealed from was rendered during the term of a district court of Fannin county which ended April 5, 1913, and that the appeal bond was not filed in that court until April 26, 1913; that is, not until after the expiration of 20 days from the date said term of court ended. It is settled that the requirement of the statute (article 2084, R. S. 1911) that an appeal bond shall be filed within 20 days after the expiration of the term at which the judgment was rendered must be complied with; otherwise the appellate court does not acquire jurisdiction of the appeal. Burr v. Lewis, 6 Tex. 80; Ry. Co. v. Whatley, 99 Tex. 128, 87 S. W. 819; Nash v. Noble, 52 Tex. Civ. App. 425, 114 S. W. 848; Simpson v. Baker, 57 Tex. Civ. App. 460, 122 S. W. 959. The appeal therefore must be dismissed.


author: LEVY, J.

text:
    COOPER MFG. CO. v. GOLDING.
    (Court of Civil Appeals of Texas. Texarkana.
    Jan. 8, 1914.)
    Appeal and Error (§ 770*) — Review—Failure to File Brier.
    Under rules of Court of Civil Appeals, rule 42 (142 S. W. xiv), where appellant fails to file a brief, the record will not be examined further than to see that the judgment is one which can be affirmed on the view presented by appellee’s brief.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3104, 3106, 3107; Dec. Dig. § 770.*].
    Appeal from District Court, Shelby County; W. C. Burford, Judge.
    Action between the Cooper Manufacturing Company and G. L. Golding. From the judgment, the manufacturing company appeals.
    Affirmed.
    D. M. Short & Sons, of Center, for appellant. Davis, Davis & Davis, of Center, for appellee.
   LEVY, J.

The appellant not having filed a brief, the record is not examined further than to see that the judgment is one that can be affirmed upon the view as presented by appellee’s brief, as provided by rule 42 for this court (142 S. W. xiv).

The judgment is affirmed.


text:
    SHIPPERS’ WAREHOUSE & COMPRESS CO. v. H. B. MOORE & CO.
    (Court of Civil Appeals of Texas. Texarkana.
    Jan. 8, 1914.)
    Warehousemen (§ 34*) — Action for Damages.
    A petition alleging that plaintiffs sold 300 bales of cotton, that the cotton on shipment was consigned to defendant to the order of the shipper and with directions to notify the purchaser, that plaintiffs had correctly weighed the cotton before shipment, but that defendants negligently and incorrectly weighed the cotton, making it 2,500 pounds less than the actual weight, which resulted in a loss to plaintiffs of $270, did not state a cause of action, because not showing that defendants were under any duty to weigh the cotton, or to deliver the cotton and collect the price.
    [Ed. Note. — For other cases, see Warehouse-men, Cent. Dig. §§ 71-85; Dec. Dig. § 34.*]
    Appeal from Hopkins County Court; Dan R. Junell, Judge.
    Action by H. B. Moore & Co. against the Shippers’ Warehouse & Compress Company. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    Crosby, Hamilton & Harrell, of Greenville, for appellant. D. Thornton, of Sulphur Springs, for appellee.
   LEVY, J.

-Error Is predicated upon the overruling by the court of a general demurrer to the plaintiffs’ petition. The petition sets out that about October 1, 1912, the ap-pellees sold to King, Collie & Co. of Dallas 300 bales of cotton in Naples, Tex., and, as agreed with such purchasers, appellees shipped the cotton to Sulphur Springs, Tex., consigned to appellant company, shipper’s order, notify King, Collie & Co. It is then alleged that appellees had correctly weighed the cotton before shipping it, but that the appellant company negligently and incorrectly reweighed the said cotton to 2,524 pounds less than appellees’ weight. The further allegations aré in words as follows: “Said erroneous weights impeached the true weights so as to cause the loss, which resulted in such loss of 2,524 pounds to the plaintiffs. That plaintiffs were to and did receive from their ven-dees King, Collie & Co. $10.71 per 100 pounds for said cotton, which price was the reasonable cash market value of such cotton at such time, which would make plaintiffs’ loss herein, by reason of such false and erroneous weight of defendant, $270.45, to plaintiffs’ damage in that.amount, on settlement with their vendees.” The petition does not allege that the appellant company Was under any contractual obligation to receive and de? iiver the shipment .of' cotton consigned to it. And if by. the custom of the business, and. for -its benefit, a compress company, as is appellant, receives and delivers cotton shipments from the seller to the purchaser, it is not so alleged. And it is not pretended to be alleged that appellant delivered the cotton shipped, to it to such purchasers, nor delivered the cotton on the alleged erroneous weights, nor collected the price of the cotton from the purchasers on the erroneous weights. In the absence, as here, -of any contractual obligation to receive and deliver to the purchasers the. shipment of cotton, any liability of appellant arising from contract would be entirely aside. And if the petition as drawn is good against a demurrer, it must be upon the ground alone that appellant as a gratuitous bailee acted negligently in respect to the purposes of the bailment. But, in the absence, as here, of any allegation that could be construed as intending to show that the appellant accepted the shipment or undertook to perform the trust, it could not be said it was in the relation of gratuitous bailee. The law does not imply a promise' commensurate with the trust as gratuitous bailee, unless the person has assumed or undertaken to. perform the trust. No dealing by the appellant with or about the cotton appears from the petition except mereiy reweighing the same. And, even if- appellant had been shown to have received the shipment, and incorrectly, reweighed the cotton, yet did not undertake to deliver the same to the purchasers, and did not undertake to collect the price of the cotton on such reweight, negligence proximately causing injury is not plead. The demurrer should, we think, have been sustained.

The judgment is reversed, and the cause remanded.


author: RAINEY, C. J.

text:
    ST. LOUIS & S. F. R. CO. v. FINLEY.
    (Court of Civil Appeals of Texas. Dallas.
    Jan. 3, 1914.
    Rehearing Denied Jan. 31, 1914.)
    1. Railroads (§ 344) — Crossing Accident — Actions — Allegations of Petition — Negligence of Emploté.
    The complaint, in an action against a railroad company for injuries at a railway crossing, alleged that the street was blocked by a train, and that after plaintiff had waited awhile for the train, to move, one of the switch crew invited plaintiff to go through the train and told him that he had time to go across, but that the trainmen started the cars without looking when plaintiff was struck,, and further alleged that his injuries were inflicted “as aforesaid through the gross negligence and want of ordinary care of the defendant arid its agents and servants operating and in charge of said train of cars and tracks.” Held, that the petition sufficiently-alleged-negligence by the switchman in inviting plaintiff to cross between the cars, though it also alleged other acts of negligence.
    [Ed! Nóte. — For other cases, see Railroads, Cent. .Dig. §§ 1107-1112; Dec. Dig. § 344.]
    2. Appeal and Eeeoe (§ 742) — Assignments of Eeeoe — Briefs. . ■■ ■
    Assignments of error not complying with Courts of Civil Appeals rules 29 and 30 (142 S. W. xii, xiii), requiring appellant to file a brief of the points relied on, separately stating each point of error, and requiring each point under each assignment of error to be stated as a proposition unless the assignment sufficiently disclosed the point need not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    . Appeal from District Court, Grayson County; W. M. Peck, Judge.
    Action by R. L. Finley against the St. Louis & San .Francisco Railroad- Company. From a judgment' for plaintiff, defendant appeals.
    Affirmed.
    Andrews, Ball & Streetman, of Ft. Worth, and Head, Smith, Hare, Maxey & Head, of Sherman, for appellant. Randell & Randell and Jones & Hassell, all of Sherman, for ap-pellee.

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

   RAINEY, C. J.

Appellee sued the railroad company to recover damages for personal injuries négligently inflicted upon him by .the.negligence of the crew of one of appellant’s.' trains. The appellant answered by general denial and special pleas of assumed risk and contributory negligence, specially denying that plaintiff was invited to go between the cars by defendant’s employe. A trial resulted in a verdict and judgment in favor of appellee for $15,000, from which this appeal is prosecutéd.

The appellant ' complains of the court’s charge as 'follows:' “The court erred in that part of the main charge to the jury wherein the act of Charlie Riddle, a member of the defendant’s switching crew, in telling plaintiff that ‘he had time to go across, and to go ahead,’ is made a basis of negligence and authorizing the jury to find damages in favor of plaintiff on the negligence of said Riddle in making such statement to plaintiff. The language of that part of the charge complained of, reads as follows: ‘Or, if you believe from the evidence that one Charles Riddle was a member of defendant’s switch crew that was doing the switching in the vicinity of Jackson street crossing on said occasion, and if you further believe from, the evidence that under the manner of doing the work of switching at said time it was the duty of the said Riddle then and there to look after the crossing on Jackson street, and if you further believe from the evidence that the said Riddle told plaintiff in effect, “You have got time to cross, go ahead,” and that said Riddle thereby meant that the said Finley was to pass by means of going over or between said ears blocking said Jackson street at said time, if you find same were blocking said Jackson street, and that plaintiff understood that said Riddle intended by his words, if any, for him to make said crossing in said way; and if you further believe from the evidence that in response to the language thus used by said Riddle, if you believe same was used, plaintiff made an attempt to cross between two box cars; and if you further believe from the evidence thát while he was attempting so to do, one or two other cars, that had been set in motion by defendant and its employes struck the said cars blocking Jackson street, if same were blocking said street, and that plaintiff was thereby injured; and if you further believe from the evidence that when said Riddle used the language in reference to the plaintiff going ahead, if he did use same, he knew or in the exercise of ordinary care should have known, that said cars were liable to be struck by other cars set in motion by other members of defendant’s switching crew, and that plaintiff’s attempting to cross under such circumstances would be attended with danger, and if you further believe from the evidence that an ordinary prudent person situated and circumstanced as plaintiff was on said occasion would have attempted to make the crossing as plaintiff did at said time; and if you further believe from the evidence that plaintiff would not have attempted to cross prior to the bumping of said other car or cars against said car or cars but for the language used by said Riddle, if any such language you find there was used by said Riddle, in relation to plaintiff’s going across; and if you further believe from the evidence that the said Riddle was guilty of negligence in using the language that he did use at said time, if he did use -same, and that such negligence was the direet and proximate cause of plaintiff’s injü-ries — then in either of these events you will find for plaintiff and assess his damages as hereinafter directed, unless you should find for the defendant under other instructions .given you.’ ”

The propositions submitted under this assignment, are: First: “It is error for the court in its charge to present issues not raised by the pleadings. There was no allegation of negligence in plaintiff’s petition based on an invitation or direction of Charlie Riddle, or any other employé, telling the plaintiff to go ahead across between the cars, and the submission of this issue, as a ground of recovery, constitutes reversible error” — and, second, “where specific questions of negligence are set up in the petition, plaintiff will be confined to those acts even though there be a general allegation of negligence in the petition.”

As the foregoing assignment and propositions involve a proper construction of the petition, we set out the charging part in full, omitting formal allegations:

“Plaintiff shows to the court that on March 29, 1909, he resided and was engaged in business in the town of Hugo, in said Choctaw county, Okl.; that defendant’s line of railway extends through said town of Hugo running north and south, just west of the business portion of said town; that plaintiff’s place of business was on a business street in said town east of defendant’s line of railway, and that his residence where he resided with his family was on the' west side of defendant’s line of railway; that Jackson street is a public thoroughfare in said town of Hugo, Okl., and runs east and west across defendant’s line of railway; that said Jackson street crossed defendant’s main track and several switch tracks about one block west of the business part of the said town, and about three blocks west of the main business corner of said town, which is located on said Jackson street; that on said date, and for a long time prior thereto, there was no crossing over defendant’s line of railway north of Jackson street crossing, and there was only one crossing south of said Jackson street crossing, and this crossing was from four to six blocks distant; that by reason thereof, the public had practically only the Jackson street crossing to get from the business part of the town to that portion of the town located west of defendant’s railway line, and this plaintiff had no other feasible route to and from his place of business in the business portion of said town, other than over the crossing on Jackson street; that a large population of said town lived on the west side of these railway tracks, and said crossing had to be used as the only feasible one by said population in going to and from the business portion of said town; that said crossing was habitually used by the public for this said travel.

- “Plaintiff would further show that ou said date, and for a long time prior thereto, defendant habitually blocked and obstructed said Jackson street crossing with trains and strings of cars at any and all time during the day and night, and maintained the same across said street for long periods of time, rendering the passage along said street impossible except by going under, over, between or through said trains and strings of cars, both during the day and night; that defendant during the said time maintained this constant blocking of the crossing, unmindful of the great inconvenience it occasioned the traveling public, who from necessity were required to constantly use said crossing; that as a result of said conduct of defendant in reference to said Jackson street crossing, and on account of the necessity for the use of said crossing by the public, the climbing over, between, and underneath defendant’s cars standing on this crossing became a habit and custom of said public; that the defendant knew of this habit and custom of said public at the time at Jackson street crossing, or should have known thereof; that this manner of crossing defendant’s railway by the public at said place on said occasions when said crossing was blocked, as aforesaid, was constantly and habitually done in the presence of defendant’s employés in charge of defendant’s trains and cars so obstructing said street, with the knowledge and consent of defendant and its said servants, and without objection; that the said habit and custom of the public of climbing over, across, and under the cars blocking said crossing was well known to the plaintiff, the defendant .and the general public, and the necessity for' such custom, on account of the heretofore mentioned conduct of the defendant and its employés in relation to the use of said crossing by defendant, was a source of much general complaint in the said town of Hugo, and to defendant and its agents and servants, all of which was well known to defendant.

“Plaintiff would further show to the court that on March 29, 1909, and at the usual time for doing so, he undertook to go home-along said Jackson street, and over said crossing from the business portion of said town; that said crossing was at said time obstructed by a string of cars of defendant, entirely blocking it; that he waited ten minutes for defendant to open said crossing, but, being conscious of the long time defendant might maintain said blockade, and after he ascertained it to be a fact that there was no engine attached, at the time, to said cars, plaintiff was induced by the circumstances, and by the direct invitation of the defendant and its agents'and servants then and there operating said railway and train of cars, to pass onward between the cars of said train, being assured then and there by defendant’s agents and servants that there was plenty of time, and no injury would result to plaintiff therefrom; that plaintiff being thus assured undertook to pass between the cars of said train, and while doing so the cars, without notice or warning to plaintiff, were suddenly struck with great violence by other cars operated then and there by the defendant and its agents and servants, and were jostled and jolted and moved with such violence that plaintiff was thrown, jerked, and fell, whereby he was injured in a serious and permanent manner.

“Plaintiff would further show to the court that, while it is true, as alleged in the preceding paragraph, that he was invited to pass between, across, or over said string of cars by some- one whose dress and appearance, and whose action and words, were such as at the time led plaintiff to believe that such person was one of defendant’s employés engaged in the operation and moving of said string of ears that were blocking said street, yet, he says, that if he is mistaken in the identity of the person extending to him such invitation, then he says that defendant, by its long and continued conduct of blocking said crossing and the habitual and constant habit of the traveling public in climbing between, under, or over said cars on occasions similar to the one which confronted this plaintiff at said time, and the knowledge of defendant and its employés of such habit, he was invited and permitted by defendant and its agents and servants to cross said tracks and pass said cars in the manner he did then and there attempt to do; and, under all the circumstances and facts herein alleged, it was the duty of defendant to ascertain the whereabouts of persons using or attempting the use of said crossing, and to ascertain and know that such persons, and especially plaintiff, were not in such proximity to said cars as to render them liable to be injured by the movement thereof, and to give notice and warning to such persons, and especially to plaintiff, of their intention to move said cars before moving the same, so that they might protect themselves from danger on account of the movement of such cars.

“Plaintiff would further show to the court that when he received his said injury he was acting with due care for his own safety, and as an ordinarily prudent person would have acted, under the same or similar circumstances; that the same was inflicted upon him, as aforesaid, through the gross negligence and want of ordinary care of the defendant, and its agents and servants operating and in charge of said train of cars and track, and by the acts and conduct of the defendant and its agents and servants as follows: That under the circumstances, it was the duty of defendant and its said servants then and there to keep a lookout at said crossing, and it was their duty to keep a guard or watchman' for the safety of the public and of plaintiff to warn and direct them and also those operating said train and cars in reference to the movement thereof, so as to prevent accident and injury. But, unmindful of the rights and safety of the public and of this plaintiff, defendant, and its said servants, failed and neglected to maintain then and there a guard or watchman, as was their duty to do, and did not ring the bell nor blow the whistle, nor give any other warning, before starting the said string of cars on said occasion, but negligently, carelessly, and recklessly moved said cars, as heretofore alleged, and injured plaintiff as a direct and proximate result thereof.”

It will be noted that plaintiff’s petition alleged the blocking of Jackson street by appellant’s train standing across it; that after waiting a while for said train to move one Riddle, appellant’s employé, invited plaintiff to go through said train; that plaintiff had time to get through; that the employes set the cars in motion without looking, etc.; that he was struck by the train, and then alleged “that the same [injuries] was inflicted upon him [appellee] as aforesaid through the gross negligence and want of ordinary care of the defendant and its agents and servants operating and in charge of said train of cars and tracks.”

We think the allegations of plaintiff’s petition sufficiently charged negligence, and fully warranted the court in giving the charge -based on the invitation of Charlie Riddle, telling plaintiff to go ahead across, between the cars, and the court was not confined to other specific acts charged in the petition. The petition alleged various grounds of negligence, which should be considered under the evidence, and the court did not err in so instructing the jury.

The appellant complains of the refusal of the court to instruct a verdict for the defendant for the reason that no negligence was shown on the part of the defendant, and that the evidence shows that plaintiff was guilty of negligence as a matter of law, which directly and proximately caused his injury. There is no merit in this assignment of error. The record shows that the plaintiff, by proof, established every material allegation in his petition, and also establishes that plaintiff was not guilty of negligence that proximately contributed to his injury.

The third and fourth assignments of error do not comply with rules 29 and 30 (142 S. W. xii, xiii), and should not be considered, but we will say that the charges requested and refused were sufficiently covered by the main charge of the court.

The fifth assignment is in the same category as Nos. 3 and 4, and will not be further noticed.

The sixth assignment complains that the verdict is excessive. The verdict is large; but, when the evidence is considered, we do not feel authorized to say that it is excessive.

The judgment is affirmed;