author: BROOKE, J.

text:
    WELD-NEVILLE COTTON CO. v. LEWIS.

    (No. 343.)
    (Court of Civil Appeals of Texas. Beaumont.
    Dec. 12, 1918.
    Rehearing Denied Feb. 5, 1919.)
    1. Limitation of Actions <®=o127(4) — Amendment of Pleading — Restatement of Obig-inal Cause of Action.
    In action for balance due on cotton, amended petition held not barred, being merely an amplification of original pleadings; both original and amended petitions asking for same amount and alleging such amount to be the balance due.

      2. Appeal and Error <@=742(1) — Assignments op Error — Propositions.
    Under rules of Court of Civil Appeals, an assignment of error, not submitting any proposition, but attempting to adopt tbe assignment as its proposition, will not be considered.
    3. Principal and Agent <@=3123(10) — Crediting op Pbick to Third Party — Authority —Sufficiency op Evidence-
    In action for balance on cotton, evidence hold to show plaintiff’s ownership, and .that third party on whose debt to defendant defendant had credited the balance sued for, had no interest in the cotton or authority to collect or receive credit therefor.
    4. Customs and Usages <@=19(3) — Suppicien-cy op Evidence — Sale op Cotton.
    Evidence held to show custom whereby cotton was shipped to defendant with draft attached to bill of lading, and whereby defendant, after selling cotton, would pay shipper difference between amount of draft and price received.
    5. Sales <@=239 — Innocent Pueoiiaseb — Credit on Pre-existing Debt.
    A person cannot claim to bo an innocent purchaser for value where he credits the purchase price to a pre-existing debt.
    Appeal from District Court, Harris County ; Henry J. Dannenbaum, Judge.
    Action by E. N. Lewis against tbe Weld-Neville Cotton Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    See, also, 1C3 S. W. 667.
    Baker, Botts, Parker & Garwood, of Houston, for appellant.
    Woods, King & John, of Houston, for ap-pellee.

      Writ of error dismissed April 2, 1919.

   BROOKE, J.

This suit was originally instituted by appellee in the Sixty-Plrst district court of Harris county, Tex., to recover of appellant the sum of $858.35, being the balance due on 60 bales of cotton shipped by appellee to appellant on the 17th day of December, 1910. It was alleged in plaintiff’s first amended original petition, filed on November 18, 1912, that on the said 17th day of December, 1910, appellant was engaged in buying and selling cotton in the city of Houston, and frequently and customarily permitted its customers to ship it cotton with draft attached to the bill of lading for' an advancement on said cotton, and that said draft and bill of lading would be sent through some local bank and paid by appellant, and, when the cotton was sold, that appellant would account to the shipper for the difference between the amount of the draft and the money received for such cotton when sold; that in pursuance to such custom, ap-pellee, on December 17, 1910, delivered to the agent of the International & Great Northern Railroad Company at Lovelady, Tex., 60 bales of cotton consigned to appellant at Houston, Tex., and attached said bill of lading to a draft drawn against appellant for the sum of $3,500 and exchange, ancf delivered same to the First National Bank of Love-lady, Tex., and that upon presentation of said draft through the First National Bank of Houston, Tex., the same was paid by appellant and the bill of lading delivered -to it, and that appellant received from said railroad company said 60 bales of cotton, and sold the same for the sum of $4,362.60, and was therefore due appellee the difference between said draft and exchange and said sum of $4,362.60, amounting to the sum of $858.35, which appellant had failed and refused to pay.

The case was tried before a jury and resulted in a verdict and judgment in favor of appellee for the amount sued for, and upon appeal the same was reversed and remanded by- the Court of Civil Appeals for the El Paso district, upon an alleged error in the charge of the court. Weld-Neville Cotton Co. v. Lewis, 163 S. W. 667.

On the 4th day of January, 1917, appellee filed his third amended original petition, containing every allegation contained in his amended petition, upon which the case had theretofore been tried, but amplifying and elaborating on said petition. In this last-mentioned amended petition, appellee alleged that one C. C. May, on or about the 17th day of December, 1910, was in the town of Lovelady, where appellee then resided, notoriously representing himself to be a member of Weld-Neville Cotton Company, as he had frequently theretofore done, and solicited appellee to ship 60 bales of cotton through the First National Bank of Houston, to appellant company, with bill of lading attached to draft in the sum of $3,500, and exchange, to be sold by appellant company in accordance with the custom of said company and other cotton concerns similarly situated; that is to say, that whatever amount said cotton sold for over and above the draft was to be remitted by appellant to appellee. At the conclusion of the testimony, the court peremptorily instructed the jury to return a verdict in favor of plaintiff for the sum of $85S.35, with interest thereon from February 1, 1911, until paid, at the rate of 6 per cent, per annum, and said verdict was returned, received by the court, and filed, and judgment entered accordingly. The case has been transferred to this court from the Court of Civil Appeals at Galveston.

Appellant’s first assignment of error is grouped with the seven following assignments on account of their intimate and close relation to the action of the court. These assignments are as follows:

“(a) The court erred in overruling the defendant’s exception No. 2, as contained in defendant’s third amended original answer, reading as follows: ‘Defendant specially demurs and excepts to said third amended original petition, because the same sets up a new cause of action from that set up by plaintiff in his original and first amended original petition, and that said original and first amended original petition, together with said third amended original petition, show upon their face that said new cause of action as set up in said third amended original petition is barred by the statutes of 2 and 4 years’ limitation, which are here now invoked by defendant, and of this exception judgment of the court is prayed.’
“(b) Tlie court erred in overruling defendant’s exception No. 11, as contained in defendant’s third amended original answer, reading as follows: ‘In the event the special exception in paragraph 2 hereof be overruled, and only in the alternative, this defendant especially excepts to that portion of plaintiff's third amended original petition set forth in paragraph 2 thereof, which alleges: “That heretofore, to wit, during the fall of 1910 and the winter of 1910-1911, the defendant was, and is now, engaged in buying and selling cotton, in the city of Houston, Harris county, Tex., and that one C. .0. May was, during said fall and winter, buying cotton in the town of Lovelady, Houston county, Tex., where plaintiff then resided, and in other towns in that section of the state, and was representing himself to the trade, and especially to this plaintiff, that lie was a member of the firm of Weld-Neville Cotton Company, and was authorized by said company to buy, and was buying, cotton for it, and that said representations were public, and frequently made throughout that section of the state, all of which was well known to the defendant, or by the exercise of ordinary care could have been known to defendant” — because said allegation sets up a new and different cause of action than that set up in plaintiff’s first amended original petition, which said new causo of action is barred by the statutes of limitation, which are here now invoked, and of this the defendant prays the judgment of the court.’
“(e)-The court erred in overruling defendant’s exception No. 12, as contained in defendant’s third amended original answer, reading as follows: ‘In the event the special exception in paragraph 2 hereof bo overruled, and only in the alternative, this defendant especially excepts to that portion of plaintiff’s third amended original petition set forth in paragraph 3 thereof, which alleges: “That during said fall, and prior to and after December 17th, A. D. 1910, and for several weeks thereafter, this plaintiff sold to the defendant, Weld-Neville Cotton Company, through the said C. C. May, on several different occasions, a number of bales of cotton, and shipped same to defendant, in Houston, Tex., with bill of lading attached to a draft for the purchase price of said cotton, and on each and every occasion such draft was protected by the defendant company” — because said allegation sets up a new and different cause of action than that set up in plaintiff’s first amended original petition, which said new cause of action is barred by the statutes of 2 and 4 years’ limitation, which are here now invoked, and of this the defendant prays the judgment of the court.’
“(d) The court erred in overruling defendant’s exception No. 13, as contained in defendant’s third amended original answer, reading as follows: ‘In the event the special exception in paragraph 2 hereof be overruled, and only in the alternative, this defendant especially excepts to that portion of plaintiff’s third amended original petition set forth in paragraph 5 thereof, which alleges: “That on or about the 17th day of December, A. D. 1910, the said O. O. May was in the town of Lovelady, where plaintiff then resided, notoriously representing himself to be a member of the firm of Weld-Neville Cotton Company, as he had frequently theretofore done, and solicited plaintiff to ship GO' bales of cotton, which plaintiff then owned, from Lovelady to the city of Houston, consigned to the First National Bank of Houston, with instructions to notify defendant company, with bill of lading attached to a draft for the sum of $3,500, and exchange, to be sold by defendant company in accordance with the custom of defendant company and other cotton concerns similarly situated; that is to say, that whatever amount said cotton sold for, over and above the draft mentioned above, was to be remitted by the defendant companyi to plaintiff” — because said allegation sets up a new and different cause of action than that set up in plaintiff’s first amended original petition, which said new cause of action is barred by the statutes of 2 and 4 years’ limitation, which are here now invoked, and of this the defendant prays the judgment of the court.’
“(e) The court erred in overruling defendant’s exception No. 14, as contained in defendant’s third amended original answer, reading as follows: ‘In the event the special exception in paragraph 2 hereof be overruled, and only in the alternative, this defendant especially excepts to that portion of plaintiff’s third amended original petition set forth in paragraph 6 thereof, which alleges: “Plaintiff would further represent that he had no reason to believe that the said C. <1. May was not connected with the said Weld-Neville Cotton Company, or was not an officer or member of said company, and as he had made several sales of cotton to the said defendant company through the said C. C. May prior to the said 17th day of December, 1910, always shipping said cotton direct to the Weld-Neville Cotton Company, of Houston, Tex., with a bill of lading attached to a draft for the contract price of said cotton, and knowing that the said C. O. May had for a Tong time been openly, promiscuously and notoriously representing himself to bo an officer of, or connected with, the said Weld-Neville Cotton Co., your plaintiff naturally believed that such were the facts, but in shipping the 60 bales as aforesaid to the defendant company, said cotton was consigned to the First National Bank of Houston, with instructions to notify the Weld-Neville Cotton Company, and a draft was drawn for the said $3,500, plus the exchange, attached to bill of lading, and that the said C. C. May’s name did not appear anywhere in said bill of lading or on said draft, and there was nothing about the said transaction or said papers to indicate to the defendant company that the said C. C. May was authorized to collect the balance due, or in any wise interested in said sale, and the said May was not authorized to collect for said cotton” — because said allegation sots up a new and different cause of action than that set up in plaintiff’s first amended original petition, which said new cause of action is barred by the statutes of 2 and 4 years’ limitation, which are here now invoked, and of this the defendant prays the judgment of the court.’
“(f) The court erred in not sustaining the defendant’s exception to the court’s charge as set forth in paragraph 28 of the defendant’s written exceptions to said charge, reading as follows: ‘Defendant objects and excepts to said charge, because in plaintiff’s original petition, filed on June 6, 1911, and in plaintiff’s first amended original petition, filed on November 18, 1912, plaintiff alleged that defendant was liable to him, and sued for the difference between the amount of the draft of $3,500 and the market value of the cotton on the day of its arrival in Houston; and in plaintiff’s third amended original petition filed on January 4, 1917, and being the pleading upon which the cause was tried, alleged defendant was liable to him, and sued for the difference between the amount for which the cotton sold, alleging it to have been sold for $4,362.00, which said third amended original petition therefore set up and alleged a new and different cause of action from that set up and alleged in the original and first amended original petitions, and said new and different cause of action, so set up and alleged, not having been filed until more than 6 years after the alleged cause of action arose, it was barred by the statutes of 2 and 4 years’ limitation.’
“(g) The court erred in not sustaining the defendant’s exception to the court’s charge as set forth in paragraph 1 of defendant’s written exceptions to said charge, reading as follows: ‘Defendant objects and excepts to the said charge, because the third amended petition filed by plaintiffs herein on January 4, 1917, and being the pleading upon which said cause was tried, sets up a new and different cause of action from that set up and alleged by plaintiff in his original and first amended original petitions, and said third amended original petition, together with said original and first amended original petition, show upon their face that said new and different cause of action as set up and alleged in said third amended original petition is barred by the statutes of 2 and 4 years’ limitation.’
“(h) The court erred in not sustaining the defendant’s exception to the court’s charge, as set forth in paragraph 24 of the defendant’s written exceptions to said charge, reading as follows: ‘Defendant objects and excepts to said charge, because in plaintiff’s original petition filed on June 6, 1911, and in plaintiff’s first amended original petition filed November 18, 1912, the right to recover, alleged by the plaintiff, was that it was the custom of the defendant to have its customers throughout the state of Texas ship it cotton to Houston and to pay them therefor the market value of the cotton on the day of its arrival in Houston, and that in pursuance of this custom he had shipped the defendant the cotton involved in this suit, and the defendant, because of the custom, was obligated to pay him the difference between the market value of the cotton on the day it arrived in Houston and the amount of the draft which accompanied the shipment; while in plaintiff’s third amended original petition filed January 4, 1917, and being the pleading upon which the ease was tried, the right to recover alleged by the plaintiff was that one O. C. May, who plaintiff thought was a representative of defendant, solicited plaintiff to ship said cotton to the First National Bank of Houston, with instructions to notify defendant, with bill of lading attached to a draft for the sum of $3,500, and exchange, to be sold by defendant in accordance with the custom of defendant company and other cotton concerns similarly situated, that is to say, that whatever amount said cotton sold for over and above the draft mentioned above was to be remitted by the defendant company to plaintiff, which said third amended original petition therefore set up and alleged a new and different cause of action than that set up and alleged in the original and first amended original petitions, and said new and different' cause of action so set up and alleged in the original and first amended original petitions, and said new and different cause of action so set up and alleged not having been filed until more than 6 years after the alleged cause of action arose, it was barred by the statutes of 2 and 4 years’ limitation.’ ”

There are several propositions under these assignments, which are being considered as a whole, as follows:

“(1) A cause of action based upon an alleged express agreement, with an alleged representative of the person sought to be charged — the terms of such agreement to be determined by a certain alleged custom — is a new, distinct, and different cause of action from one based solely upon an alleged custom.
“(2) As plaintiff’s original petition and first amended original petition alleged solely a liability of defendant growing out of an alleged custom, and plaintiff’s third amended original petition alleged solely a liability of defendant upon an alleged express agreement with an alleged representative of defendant, the terms of such agreement to be determined in accordance with an alleged custom, the plaintiff’s new cause of action was barred on its face by the 2 and 4 years’ statutes of limitation.”

On the contrary, it is urged that the amended petition upon which the case was tried is merely an enlargement or amplification of the original cause of action, and is not a new cause of action, but a continuation of the old, and was therefore not barred by the statute of limitations, and that the facts alleged in the last-amended petition upon which the case was tried related to the-same transaction as those set up in the original pleadings, and was therefore not barred by the statute of limitations.

After a careful consideration of the case, and the different phases of the same, we are of the opinion that no new or different cause of action was alleged in this new pleading, but that the same was merely an amplification of the old pleadings and a continuation of his original suit. The amended petition upon which the case was tried is merely an enlargement or amplification of the original cause of action, and a perusal of the last two amended petitions will show that there is no difference in the cause of action alleged; that the last petition contains all of the allegations of the other petitions, and said allegations are therefore adopted in the pleading last filed, and that said last pleading is merely an amplification of the other.

Judge Townes, in his work on Pleadings, on pages 456 and 457, lays down the following rule:

“If a case were brought charging fraud in general terms, there can be no doubt that an amendment can be made specifying particular facts as constituting the fraud, and that this would be the same cause of action. Suppose afterward another amendment were made setting up still other facts concerning the same transaction constituting a distinct fraud so different from that set up in the first amendment as not to have been admissible under its allegations. Here, there would be a different cause of action in the second amendment from that set up in the first, but both would be included under the general charge of fraud, as set out in the original, and the second amendment should be permitted as a continuance of the original suit, but if the facts alleged in the second amendment related to different transactions, although they might be fraudulent, or if they related to the same transaction, but have no connection with fraud, but alleged some matters of a different nature, the second amendment would set up a new cause of action, and be regarded as equivalent to bringing a new suit, as to such matters.
“This is the real result of the recent decisions, though expressed in different language from that employed by the judges. Leaving out any reference to the phrases, ‘cause of action,’ or ‘ground of difference,’ we may say that our courts have held that if the amendment sets up facts regarding the same transaction as those set up in the original pleading and so germane to it that it is reasonably apparent from the pleadings that they refer to the same matters, and that it was the intention of the pleader in preparing the former pleading to litigate the matters set up in the amendment, the amendment will be regarded as a continuance of the suit, and not the institution of a new one.”

In Cyc. vol. 25, p. 1305, we find the following:

“Where plaintiff, by amendment sets up no new matter or claim, but merely relates in a different form, more correctly and specifically, the same cause of action set .out in the original declaration, it is not a new suit, and the statute will not avail for the period between the original and amended pleadings. Where the original declaration states the cause of action, but does it imperfectly, ánd afterward an amended declaration is filed, correcting the defect, the pleading of the statute of limitations will not relate to the time of filing of the original declaration.”

On page 1310, Cyc., we find the following:

“An amendment changing the form of an action will not open the case to the bar of the statute of limitation if the cause of action is not changed. So long as the identity of the cause of action is preserved, the form of the action is not material. If, however, change in the form of the action introduces new and distinct cause of action, limitations do not cease to run until the amendment is made.”

In the case of Mayer et al. v. Walker, 82 Tex. 222, 17 S. W. 505, the following language is used:

“The second and third amended petitions contained substantially the same cause of action. The statute of limitations therefore in no way affected the right to recover in the action included in both, from the time originally declared on.”

In the case of The Oriental v. Barclay, 16 Tex. Civ. App. 193, 41 S. W. 117, it is held that where a substantial cause of action for personal injuries has been pleaded, the enlargement of the allegations as to specific injuries by amendment is not affected by the statute of limitation.

In the case of Chicago City By. Oo. v. McMeen, 102 Ill. App. 318, it is held that in an action for personal injuries, an amendment count which states a different place at which the injury took place is not amenable to the plea of limitation, and it is not the statement of another cause of action. Also in the cases of Caswell v. Hopson, 47 S. W. 54, and Railway Co. v. Eberhart, 40 S. W. 1060, it is held that an amendment to a declaration, amplifying and enlarging upon the manner •in which an accident occurred, and stating more clearly the negligence complained of, is not barred by limitation, if the cause of action was brought within the time prescribed by statute. In the case of Cogswell v. Hall, 185 Mass. 455, 70 N. E. 461, it is held that the question whether plaintiff intended, when he brought his action, to include the substance of the amended count as a part of his damage is within the discretion of the trial court.

It seems that in this case in every pleading filed by appellee in this suit, he sued for identically the same amount of money, alleging in each instance that it was the balance due him after the sale of 60 bales of cotton that was shipped by appellee to appellant on the 17th day of December, 1910, and the last pleading filed by him merely goes into details and explains the circumstances under which said cotton was shipped and the reasons for shipping the same without a previous agreement so to do with the appellant company. Townes’ Texas Pleading (2d Ed.) pp. 456, 457; Mayer v. Walker, 82 Tex. 222, 17 S. W. 505; The Oriental v. Barclay, 16 Tex. Civ. App. 193, 41 S. W. 117; Caswell v. Hopson, 47 S. W. 54; Texas, etc., Ry. Co. v. Eberhart, 40 S. W. 1060; Chicago City Ry. Co. v. McMeen, 102 Ill. App. 318; Cogswell v. Hall, 185 Mass. 455, 70 N. E. 461; Cyc. vol. 25, pp. 1305-1307, 1310.

It is claimed by appellee that appellant’s ninth assignment of error is in violation of the rules of the court, in that it does not submit any proposition under said assignment, but attempts to adopt the assignment as its proposition, and it is urged that it is a well-settled rule that the mere adoption of an assignment of error as a proposition does not constitute same as a proposition, and that to designate said assignment of error as a proposition would, in effect, nullify this rule, as the assignment cannot be in any manner considered a proposition, and appel-lee therefore moves the court to disregard and not consider said assignment.

We find the facts to be as stated by ap-pellee, and therefore we are of opinion that the ninth assignment of error is in violation of the rules of this court, and the same will not therefore be considered.

The tenth assignment of error challenges the action of the court as being error in refusing defendant’s requested charge No. 2, which reads as follows:

■ “You are instructed that the evidence does not support the case alleged, and you will return your verdict for the defendant.”

This is embraced in what has been before said with reference to the question not' being a new cause of action, and it is therefore unnecessary to further consider the tenth assignment

The eleventh assignment of error challenges the action of the lower court as being error in permitting the witness P. N. Ijewis, while testifying on behalf of plaintiff, to testify as to any representation made by C. C. May as to his connection with the defendant company, and as to such representations made by said May to the witness the defendant objected to such testimony because the plaintiff had not introduced any evidence connecting the said May with the Weld-Neville Cotton Company, and defendant objected to any representations made by said May until plaintiff had first shown that defendant company knew of those representations, and that they were brought to its notice in some way, and further that the statements of the said May would not be sufficient, and it is urged that proof of agency must be traced to its source in some word or act of the alleged principal.

Upon this whole case it is shown that there is no material difference m the cause of action alleged in the petition last filed. The undisputed testimony was substantially as alleged, that appellee was the owner of the cotton shipped, and May had no interest therein, and no authority to collect for same, and no one but appellee was authorized to receive the amount sued for, and that appellant was due and owing appellee the amount sued for, and had failed and refused to pay the same, although often requested so to do, but had credited said amount on a pre-ex-isting debt due by said May to appellant, without authority from appellee. The ap-pellee testified in his own behalf as follows:

“It was the 12th of December that I first met May. * * * I sold him 80 bales of cotton. To pay me for said 30 bales, May drafted on the Weld-Neville Cotton Company for the amount, $2,238.98.. * * * He tried to buy part of this lot that is in controversy, looked at 31 bales of it on December 12th, and I did not want to sell it. I told him I paid a pretty high price for it. I had 31 bales of this lot in controversy, there on the platform, and May tried to buy it, and I told him I did not care to sell it right then, but I wanted to wait a few days on account of a bureau report that was due. * * * Then May asked me to ship the cotton to the Weld-Neville Cotton Company to be handled by them. He said they would take care of it for me, and would charge me no storage, no interest and no commission. * * * At that time I had been in the cotton business 3 or 4 years. I knew the Weld-Neville Cotton Company. The Weld-Neville Cotton Company had a custom within my knowledge with reference to people shipping cotton to it with bill of lading attached for part of the purchase price. * * * I knew people shipped the Weld-Neville Cotton Company cotton during that time and the fall preceding December, 1910. * * * Evans & Co. are a cotton firm, and had made me the same proposition, that I could consign cotton to them and draw within $10 per bale of the worth of the cotton. The way I would consign it to them was, I would put the cotton on the platform of the International & Great Northern Railway Company, and would have a bill of lading made for it, which would be consigned by the agent of the railroad company, * * * and I would consign the cotton to Weld-Neville Cotton Company or to Evans & Co., and attach a draft to the bill of lading. I would not draw the draft for the full value of the cotton. I would generally leave a margin of $10 or $15 per bale. That had been my custom with Evans & Co. * * * They buy a lot of cotton. I had known of others shipping cotton to the Weld-Neville Cotton Company that way.
“On December 12, 1910, Mr. May solicited mo to ship cotton to ’Weld-Neville Cotton Company in the way I have stated. I shipped cotton as Mr. May asked me, and made a bill of lading to the Weld-Neville Cotton Company. I did not bill it to Mr. May. I shipped 60 bales. * * * I turned said bill of lading over to the bank at Lovelady, and accompanying said bill of lading I gave the bank a draft for $3,504.25, of which amount $4.25 represented the exchange for handling the draft. * * * I instructed the bank at Lovelady to send said draft and bill of lading to Houston and get the money, as they had been doing. I do not know anything about said indorsement; it was not on the draft when I delivered it to the bank.
“I shipped this cotton to Weld-Neville Cotton Company under such a custom. I shipped the cotton down to Weld-Neville Cotton Company with draft attached, expecting that they would pay the draft and account to me for the difference, upon what the cotton sold for at the market price of the cotton at the time it was received in Houston.
“The bill of lading that has been introduced here bears the indorsement of the First National Bank of Lovelady; I made it payable to them, and they indorsed it, and when it was indorsed by said First National Bank of Lovelady it, together with the draft, was sent to Houston for collection. That was done in accordance with the custom alleged in my petition. That custom was to ship the cotton and draw on it for part of it, and then they account to me for the balance when it was sold. That has always been the custom since I have been in the cotton business. When it was sold, they would account to me for the market value the day it was sold.
“There was only one draft made before the shipment involved in this suit, and that was December 12, 1910, and I sold that cotton to Mr. May. That was the first cotton I sold to May, but.I sold Weld-Neville a lot of cotton before that.”

It was admitted that A. C. Cairnes was the executive officer of appellant company.

“When I talked with Cairnes, he told me when some of that cotton arrived in Houston. * * * lie said he sold it as soon as it got to Houston. Cairnes showed me the dates the cotton was sold, and he told me he sold it on arrival in Houston. * * * I think he said it arrived in Houston on the 23d of December. I had been writing to May instead of Weld-Neville Cotton Company, because he claimed to be one of the firm, and was familiar with him. When I came down and saw Mr. Cairnes. * * * I asked him what he had sold it for, and Mr. Cairnes turned to the bookkeeper and asked him to get the amount it brought, and he said the amount due me was $858.30. He told me then that the cotton brought $858.35 over the amount of my draft. * * * I have made many shipments of cotton from Lovelady to Houston. Ordinarily, it takes from four to ten days for cotton to arrive in Houston from the time I deliver it to the railroad company at Lovelady; sometimes it is a little longer. I know the market value of cotton, and also in Houston on December 20, 1910. Said market value was about 15 cents a pound, and stayed there for quite a while. I think it went little above 15 cents, but I would not bo positive how much. * * * It went down very little, if any, from the 20th of December, 1910, to the 6th of February, 1911. It stayed at 15 cents basis middling, and the other 7 or 8 bales, whichever it was, brought three-eighths less.
“The second time I came down to see Cairnes he asked me how I came to ship that cotton to him. I told him I had talked with May about it when I sold him him that first list. I did not ship it right straight, but later on I shipped it with the understanding that May would take care of the draft and turn the balance over to me when it was sold, as that was the custom and ho said that was the custom with them. I told him about having an understanding that such was the custom with the other firms, and he told me it was the same with them.
“I told him (Cairnes) that was my understanding of the custom. He said that was the custom, and he said that was their custom, and said also that he sold the cotton on arrival. Cairnes said it was their custom to handle cotton that way. I sold the first lot of cotton to May on the 12th of December. * * * May looked at the 31 bales of cotton while ho was there. * * * I told May I did not want to sell it until after the Bureau Report, which was due on the 20th. I did not ship that cotton out at once because I did not want it to reach Houston sooner than the 20th. I held it over until the 17th, so that it would not reach Houston before the 20th. I remember too, it was very late in the evening of the 17th that the bill of lading was turned over to me, and they never loaded until the next day, and then they do not usually ship until the following day, and sometimes later.”

There was introduced in evidence draft dated December 12, 1910, for the sum of $2,-258.98, marked “Exhibit A,” draft dated January 14, 1911, for the sum of $5,006.79, marked “Exhibit D,” draft dated January 18, 1911, for'$2,538.06, marked “Exhibit E,” and all drawn by Cutler May in payment of cotton purchased by May from appellee, and drawn against appellant company and by it paid-

These drafts and transactions were offered for the purpose of showing that May was buying cotton for the account of appellant and drawing drafts against appellant in payment for same, and as showing authority to the said May by appellant company to represent it in the purchase of cotton.

John I. Moore testified for appellee as follows:

“I live at Crockett, and have been practicing law there for about 30 years. Mr. Lewis placed the claim against Weld-Neville Cotton Company, that is the basis of this suit, in my hands for collection, and I then came to Houston to the office of said company, and was introduced to a man, or perhaps I introduced myself to him, who called himself Cairnes. * * * I took up with him the matter of the claim of Mr. Lewis in reference to the balance due on the shipment of the 60 bales of cotton in controversy here, and he wanted us to see a man by the name of May. * * * Cairnes wanted me to see May before he would talk to me further about the business, and we went to see May.
“May did not pay me the difference, and the young man and I took the car and came back to see Cairnes, and I had a conversation with Cairnes after we came bade.
“Cairnes had his bookkeeper * * * show me his books, and he pointed out to me $858.35 is my recollection as the amount that was due on the cotton over and above the draft.
“Cairnes told me what had been done with that $858.35. He said it had been placed to the credit of C. C. May. Cairnes told me that May had been buying cotton for them and drawing on them for money, and had gotten in debt to the Weld-Neville Cotton Company, and he placed that amount to May’s credit to balance his account, and it a little more than balanced it. * * * That the amount of $858.35 overbalanced May’s account $1.39, and that amount was still due May, and he led me to believe that I could have gotten that amount that day, but I would not take it.”

This testimony was uncontradicted., and appellant did not offer its boobs to show that this balance or any part thereof had been paid to May, believing that May owned the cotton, but the record stands uncontradicted that appellant company merely gave May credit for this amount in order to balance the amount that May was due appellant company on other transactions.

Cairnes did not appear and testify in this cause upon this trial, but testified in the former trial, and by agreement his testimony upon said former trial was used upon the last trial, and appellee introduced in evidence the cross and recross-examination of said Cairnes, as follows:

“The first connection I had with Mr. Lewis, the plaintiff in this suit, with reference to this cotton or any other cotton, was this letter dated February 6, 1911. He never at any time instructed me to pay Mr. May any sum of money that might be due him. * * *
“This draft, dated December 17th, for $3,-504.25 was drawn by the plaintiff in this case. That had a bill of lading attached to it for* 60 bales of cotton. That would indicate that Mr. Lewis was the owner of that cotton and the drawer of the draft. I had no other information from Mr. Lewis or any one else except what Mr. May might have told me as to the ownership of that cotton. Mr. May’s name did not appear on this draft or on the bill of lading at the time it was presented by the bank. This notation of C. C. May was made after it was presented. That notation was not made at the time the draft was drawn, but we had it indorsed by Mr. May. We had that done merely for our own protection; I wanted that guaranty that it was all right. That was the purpose of having Mr. May indorse it. I don’t know that there was anything about the draft or about the bill of lading that led me to believe that Mr. May had anything to do with that shipment, except his own word for it. I just assumed because he had been buying some cotton at Lovelady that he was authorized to receive the balance due, and the fact that it is very unusual for a person to ship people cotton without telling them about it. * * * After we got the cotton and had it weighed and graded, I knew then that it did' not represent the full value of the cotton. That was before I settled with Mr. May. I know before I settled with Mr. May that that draft drawn by F. N. Lewis did not represent the full value of the cotton. When that cotton was sold, there was a balance due of $858.35. That money was either pai’d to Mr. May or credited to his account. I don’t know whether it was paid to him in cash or whether Mr. May was just indebted to us on some other sale.
“I think that the value of the cotton at the time that it arrived here was about the same as the price it was sold for; I am not sure about that. * * * There was a telephone line between here and Lovelady. I did not think to call Mr. Lewis up when Mr. May demanded payment for the balance due on that cotton and ask him if it was all right to pay it. I did not attempt to communicate with Mr. Lewis in any way with reference to the balance due on that cotton; I merely accepted Mr. May’s wox-d for it and paid him the money.
“We do frequently have customers ship us cotton with draft attached for advancement on the cotton after notifying us that they are doing so, and we take that cotton and pay the draft and sell the cotton and remit the balance due them on the sale, upon instructions. * * * Supposing that yourself or some perfect stranger had gone to me after I received that draft and asked me to settle for the balance on that cotton. I would not have done so, because you are a stranger. Mr. O. C. May was not. I trusted Mr. May because I knew him. I would not have trusted any one I did not know; I trusted Mr. May because I knew him, and believed he was honest. There is nothing about the bill of lading to indicate that he had anything to do with the cotton or the draft.”

The undisputed testimony shows the custom alleged in appellee’s pleadings, such custom being admitted by appellant through its executive officer, who testified, A. C. Cairnes. It is true that 'Cairnes testified that this was only its custom with its customers, but it is shown by the uncontradict-ed testimony that appellee was one of appellant’s customers, he having sold various lots of cotton to appellant company, sold by him to appellant through C. C. May. Appellee also testified, which testimony was uncontra-dicted, that he had made numerous shipments of cotton to appellant company prior to the date of this shipment in question. It is also uncontradicted that May was buying cotton as the agent and representative of appellant company, in that he was buying cotton and especially of appellee, and paying for same with drafts drawn against appellant company, which said drafts were delivered to appellee, deposited in the bank, and paid by appellant. Cairnes admitted that he relied solely upon May’s statement as to the ownership of the cotton, and that there was nothing about the draft or the bill of lading that indicated that May had any interest in the proceeds of the sale of the cotton, and that he knew that the draft did not represent the full value of the cotton, and that appellant was to account to the owner for such balance. It is uncontradicted that May had no interest in this money, and that he had no authority from -appellee to collect the same, and, appellant having failed to show that it paid May such balance on cash without notice of appellee’s claim, and believing that May had authority to collect same, and that such balance belonged to him, there was no estoppel in the case, since appellant merely credited May’s account with such balance to cover up an amount of money due by May to appellant. In other words, appellant is not an innocent purchaser of said cotton for value, and, having credited a preexisting debt due by May to appellant, it cannot defeat the payment of this sum of money to the rightful owner and person entitled to receive the same.

Attorney Moore testified, without contradiction, that Cairnes told him that May had been buying cotton for appellant, and had overdrawn his account, and that he had merely credited May’s account with this balance due appellee on this shipment of cotton, and that, after doing so, there was a bal-anee standing to the credit of May of $1.39. Had appellant paid May this $S58.35 in cash, believing that he was the owner of the cotton and entitled to collect said money and without notice of appellee’s claim and ownership, we would have an entirely different case, but the rule is too well settled to justify argument that a person cannot claim to be an innocent purchaser for value where he credits the purchase price to a pre-existing debt. Even though the cotton had been shipped direct to May instead of to appellant, and May had sold same to appellant and had the proceeds of the sale credited to a preexisting indebtedness, appellant could not defend the suit brought by appellee for the value of said cotton. M'ay was merely soliciting appellee to ship this cotton to appellant, explaining to appellee the custom, the existence of which appellant admits, and, appel-lee not desiring to sell same before the 20th of December, when the government report was due, he does not ship the same at the time May solicited him, but waits until the 17th of the month in order that the cotton would be sure not to reach Houston before such report was due. The uncontradicted testimony shows that the price of the cotton remained from the 20th for several days about the same, and then began to gradually decline, and, assuming that the cotton reached Houston before it was sold, appellant could not complain of the amount of the judgment rendered, because appellee only recovered judgment for the amount that appellant admitted the cotton was sold for, which could not have been more than it would have been had the cotton reached Houston on the 20th or any date prior to the date when it was sold. Cairnes admitted, however, that the cotton was sold immediately upon receipt of same in Houston, and that there was a balance due of $858.35.

In the case of Uvalde National Bank et al. v. R. E. Brooks, 162 S. W. 957, it seems that suit was brought against R. E. Brooks et al., who were directors and stockholders of a certain corporation, for the sum of $5,000, on an express promise to pay. The undisputed testimony showed that the cashier of said bank, at a meeting of the board of directors of the corporation, offered in behalf-of his bank to loan said corporation $5,000, which it was then in need of, if the directors present would obligate themselves to pay same. One of the directors spoke up and stated that they had just as well owe the Uvalde National Bank as any bank that they were contemplating getting the money from, while the others of the directors replied that they did not propose to put any more money into the corporation, and the meeting broke up without any further understanding. Later on, however, a draft was drawn by one of the directors or officers of said corporation for the $5,000, and it was paid by the bank, and, the corporation having defaulted in payment of same, suit was brought by the bank against the directors, alleging an express promise to pay. The directors defended upon the ground that there could have been nothing more than an implied promise to pay, and that, appellant having alleged an express promise to pay, it could not recover upon showing nothing more than an implied promise. The trial court sustained the contention of the directors, and upon appeal the case was reversed (162 S. W. 957), and a writ of error denied to the Supreme Court.

We have considered each and every assignment of error in the brief filed by appellant, and upon a careful consideration, not only of the main questions presented, but of the entire case, we are of the opinion that under the undisputed testimony in this case the judgment should have been in favor of the appellee, and therefore we overrule all of appellant’s assignments, believing that what we have said entirely covers the points raised in the case by the various assignments.

The judgment of the lower court should be affirmed, and- it is accordingly ordered.
      <gz=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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


source: Caselaw Access Project

author: WALTHALL, J.

license: Public Domain

text:
    EL PASO ELECTRIC RY. CO. v. ALLEN.
    (No. 905.)
    (Court of Civil Appeals of Texas. El Paso.
    Jan. 23, 1919.
    Rehearing Denied Feb. 20, 1919.)
    1. Street Railroads @=>117(31) — Collision with Street Car — Contributory Negligence-Question for Jury.
    In action for personal injuries sustained by plaintiff, a child over 10 years old, struck by one of defendant’s street cars while she was attempting to cross a street at a place other than a street intersection, question of contributory negligence held, under the evidence, for the jury.
    2. Street Railroads @=>98(6) — Collision with Street Car — Contributory Negligence.
    In the absence of a city ordinance requiring pedestrians to cross streets only at places indicated, it is not negligence per se to undertake to cross a street at other places than-street intersections.
    3. Street Railroads @=>81(1) — Use of Streets — Duty of Motorman.
    It is the duty of those operating street cars to use ordinary care to avoid injuring persons using the streets.
    4. Street Railroads @=>117(13) — Collision with Street Car — Negligence—Question for Jury.
    In action for injuries sustained by plaintiff, a child over 10 years old, struck by one of defendant’s street cars while she was attempting to cross a street at a place other than a street intersection, whether motorman failed to use ordinary care “to discover” and avoid injuring plaintiff, held, under the evidence, for the jury.
    5. Appeal and Error <&wkey;1002(l) — Submission op Issues — Harmless Erro®. '
    Where the jury found that defendant was negligent in failing to discover child on street car tracks and in failing to signal, any error in form of question submitting issue of dangerous speed does not require reversal.
    6. Trial <&wkey;352(l) — .Submission op Issues— Undue Prominence.
    In suit by child for injuries from collision with street ear, a question submitted, which grouped special issues of negligence, held not to render the verdict part general and part special, or place undue emphasis on any one or more of the issues assigned as negligence.
    7. Appeal and Error &wkey;>1072 — Argument op Counsel — Reversible Error.
    In suit by a minor for injuries, it was not prejudicial error to refuse new trial, for remark of plaintiff’s attorney in discussing the measure of damages, “The attorneys representing the plaintiff would get nothing except what the court allows them,” was more the statement of the law than of a fact calculated to increase the verdict.
    8. Damages <&wkey;132(9) — Personal Injuries— Excessive Damages.
    For injuries to plaintiff child over 10 years of age, necessitating amputation of her leg almost to the knee, a verdict of $15,000 is not so grossly excessive that court on appeal will interfere.
    Appeal from District Court, El Paso County; P. R. Price, Judge. \
    Suit by Ruth Allen against the El Paso Electric Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.
    Davis, Goggin & Harrington, of El Paso, and Baker, Botts, Parker & Garwood, of Houston, for appellant.
    Lea, McGrady & Thomason, of El Paso, for appellee.
   WALTHALL, J.

On May 29, 1917, while attempting to cross the street car tracks on Boulevard street, between Dallas and Williams streets, in the city of El Paso, Ruth Allen, appellee, a girl 10 years and 5 months old, a normal child mentally and physically, was struck by one of appellant’s street cars, knocked down, her right leg crushed, necessitating amputation at the knee. For the injury received she brings this suit.

Boulevard street, upon which the street car double tracks are situated, runs east and west, while Dallas and Williams streets run north and south, Dallas being west of Williams. The street cars go west on the north track and east on the south track. Ruth Allen lived on Dallas street south of Boulevard. Between 4 and 5 o’clock in the after- ' noon on the date of the accident, Ruth was sent by her mother on an errand to a house on the north side of Boulevard street, and situated on Boulevard about midway between Dallas and Williams streets.

Just before the accident while on her way home, and while on the north side of Boulevard street, Ruth started to cross Boulevard street in the direction of her home, from a point on the north side of Boulevard about 100 feet east of the intersection of Dallas and Boulevard streets, but, seeing a street car approaching from the east on the north track (some witnesses said two cars were approaching from the east) she stepped back to the curb and waited for the car, or cars, from the east to pass. As soon as the car or cars going west had passed, she again started walking, from the same point, to cross the street to the said south side, passing behind the last west going car (if there were two) and was struck by an east-bound street car just as she got upon the south track.

The case was submitted upon special issues, the negligent acts charged being: (1) Negligence in operating, the street car at a dangerously high rate of speed; (2) negligence in failing to give due signal of the approach of the street car; (3) negligence in failing to use due care to discover and avoid injury to persons using the street. The appellant pleaded general denial, and plea of contributory negligence of Ruth Allen in attempting to cross the street near the middle of the block, and passing behind one street car immediately in front of another. The trial resulted in a verdict and judgment in favor of plaintiff in the sum of $15,000, from which this appeal is prosecuted.

The court in its charge gave proper definitions of negligence and ordinary care, and instructed the jury that:

“It is the duty of a street railway company, such as defendant, in the operation of its cars along its track on the streets of a city, to use ordinary care to discover and to avoid injuring persons who are crossing such streets, and a failure of defendant’s servants, agents, or em-ployés operating its cars to use such ordinary care is negligence on the part of a street railway company.”

, The court, after instructing the jury as to the duty of a pedestrian in crossing a street along which a street railway operates its cars, submitted to the jury, among others, the following questions, to which the jury made the following answers:

Q. 1. “Do you find from a preponderance of the evidence that defendant’s motorman was negligent on the occasion in question in operating the street car at the speed he was operating it as he approached the place where such car struck plaintiff, Ruth Allen?” Answer: "Xes.”
Q. 3. “Do you believe from a preponderance of the evidence that defendant’s employés operating the street car on the occasion in question failed to use ordinary care to discover and avoid injuring Ruth Allen?” Answer: “Yes.”
Q. 5. “Do you find from a preponderance of the evidence that defendant’s employes failed to give due signal and warning of the approach of the street ear at the place of the collision on the occasion in question?” Answer: “Yes.”
Q. 6. “If you have answered, ‘Yes,’ to question No. 5, then.answer 6: Do you believe from a. preponderance of the evidence that such failure was negligence on the part of defendant’s said employes, if they or either of them did so fail?” Answer: “Yes.”

The court further charged as follows (to which we will refer as part of and embracing question S):

“In questions No. 1, No. 3, and No. 6, are submitted to you certain alleged grounds of negligence. If you should have answered two or more of said enumerated questions in the affirmative, then and in that event answer this additional question: Question No. 8: Do you find from a preponderance of the evidence that a combination of two or more of the said negligent acts of which you have found the defendant guilty, if you have found the defendant guilty of any negligent act or acts, was the proximate cause of the injury to plaintiff, or a proximate cause thereof?” Answer: “Yes.”

In question 9 the court submitted to the jury the issue of negligence of Ruth Allen in undertaking to cross the street at the place she did, from behind the west-going car as she did, and on the issues the jury found against appellant.

Appellant presents 11 assignments of error. The first assignment claims error in the court’s refusal to give a submitted peremptory charge to find for appellant. It is the insistence of appellant under this assignment that the undisputed evidence shows that Ruth Allen undertook to cross the street and street car tracks near the center of the block instead of at a street intersection and regular crossing, passing behind a street car going west and immediately in front of the street car going east, which struck her. That her acts in so doing were negligent acts per se, and necessarily constitute the proximate cause of her injury. We need not state the evidence at length. It shows that Ruth Allen, after performing her errand on the north side of Boulevard street, started to return to her home on south side. She did not go to the intersection of Boulevard and Dallas streets, but undertook to cross at a point some 100 feet east of the intersection of those streets. She stepped off the sidewalk and saw a car coming from the east and stepped back. Another car had just preceded that one. That car had gone on west. The car approaching slowed down as if to .let her on. but on her signal that she did not wish to take the car it went on slowly. She said:

“I looked for cars in the other direction. When that car passed I looked both ways, and I started again, and could not see any car coming. I went on across in behind the car I had let pass. I looked for cars in either direction. I was walking. I started straight across the track, and the car knocked me down. The car was going east. I did not hear that car or any gong or whistle on it. There was no alarm given there that the car was coming. I did not know the car was coming'. The first I knew of it I heard the roaring of the wheels. I was so close to it then I could not get out of the way. If I had seen or heard that car coming I would not have g'one on the track. I would have stayed on the curb until it passed. I suppose it was the front end of the car that struck me.”

Witness Langston testified to seeing Ruth standing on the curb to let a car pass going west. He said:

“Two cars passed going west between the time the child stopped there (on the curb) and the time she got hit. The two cars were about 70 feet apart. * * * After the first car going west passed the child, she started to cross the street, and got 6 or 7 feet into the street before she stopped. She then turned and went back to the curb because the fellow sounded the gong and the kid shook her head no; that is, the motorman on the second car coming into town. * * * She shook her head, and came back to the curb. When the second car passed she started to cross the street. She was not running, but was going about like, well, about the average child of her age. I would consider she was walking. The car passed about its own length before she got off the curb and started across. The first time I saw the east-bound car coming on the south track, it was coming down hill. * * * It did not stop at Dallas street. I would say it did not give any alarm at Dallas street. It did not give any alarm, bell, or signal as it passed the west-bound car just before it struck this child.”

Witness said the car was going about 25 or 30 miles an hour. The car hit the child twice, the first time a little north of the center of the car, knocking her 10 or 12 feet and down “on all fours,” and as she raised, it struck her the second time.

Mrs. Staus, after testifying to the facts as to the child standing on the curb waiting for the west-going car to pass, said in part:

“When she saw that car coming into town, she got back and stood upon the curb. She waited for the west-bound car to pass, and then she started across from the curb in the direction of her home. She was walking. At the time the other car from town was coming, and she could not see it because it was behind the other car. The car going to town obstructed her view, and this car coming from town was going so much faster than the car going to town that -the minute she went to cross it caught her before she got across. * * * She passed behind the car that was coming this way just a little bit; that car obstructed her view from the other car.”

Other witnesses testified to practically the same circumstances. We have stated the evidence sufficiently, we think, to determine the question of negligence per se of appellee, presented in the assignment. Appellant refers us to Freeman v. Garcia, 56 Tex. Civ. App. 638, 121 S. W. 886, and to St. Louis & S. W. Ry. Co. v. Shiflet, 37 Tex. Civ. App. 541, 84 S. W. 247, as sustaining its position. As we construe the cases, neither involves the question presented here. In the first case cited, Luz Garcia, 11 years of age, climbed upon the running board of the switch engine operating in the stockyards in the city of San Antonio. He slipped and fell therefrom and was injured. San Antonio had an ordinance making it unlawful for any person not a passenger to get on or cling to any street car or other railroad car in the city when in motion. Receiver Freeman pleaded the ordinance, and that Luz was on the engine in violation of the ordinance and without the knowledge of appellant or the employés. The point in that case having any similarity to the issue here was in the refusal of the court to give a peremptory instruction - for appellant. In that case, Luz testified:

“Yes; me and the boys hop the train down there pretty often. I knew that if I fell off that car it would run over and hurt me, so when I got onto it I tried to hold on tight. Yes; when I wont to jump I knew it was dangerous, and I was liable to get hurt. Yes; the police officers sometimes came down there, and got after us and chased us out in the brush.”

Mr. Chief Justice James, in passing on the case, said there was nothing in evidence contradicting what Luz said, or that the employés had anything to do with causing Luz to jump off the engine while in motion. The court said Luz’s own testimony shows beyond question that he knew that injury was likely to result to him if he attempted to get off the engine while in motion, or did not hold on tight, and therefore held on his evidence that he was guilty of contributory negligence.

AVithout stating or discussing the other case, we see no analogy between the issues there presented and the case at bar.

In presenting the question of contributory negligence on the part of Ruth Allen, in undertaking to cross Boulevard street, it is not suggested that her attempt to do so at a place other than the intersection of streets or at street crossings was in violation of any city ordinance. It has often been held that it is only where it is so clearly established from the undisputed evidence as to admit of no other reasonable hypothesis or conclusion that either a fact essential to plaintiff’s cause of action has not been proven, or one which is a complete defense has been shown, that it becomes the duty of the court to instruct a verdict for the defendant. San Antonio Traction Co. v. Levyson, 52 Tex. Civ. App. 122, 113 S. W. 560, and eases there cited. In the absence of a city ordinance requiring pedestrians to cross streets only at places indicated in the ordinance, it would not be negligence per se to undertake to cross the street at other places than street intersections. San Antonio St. Ry. Co. v. Renken, 15 Tex. Civ. App. 229, 38 S. W. 829. It is quite evident to us that the issue was one for the jury.

The second, fifth, and sixth assignments claim error: In the third paragraph of the charge in which the court tells the jury that it is the duty of a street railway company in operating its cars on the streets of cities to use ordinary care to discover persons who are crossing such streets; error in said subdivision of the charge because the undisputed evidence shows that there was no failure on the part of defendant’s employés to use ordinary care to discover and avoid injuring Ruth Allen; and error in submitting the third question to the jury, whether defendant’s employés used ordinary care to discover and avoid injuring Ruth Allen. The points of contention in these assignments seem to be that the use of the word “discover” in the charge in stating defendant’s duty and in stating the third question to the jury places upon the defendant a burden more onerous than the law requires. The contentions are not sustained. One of the negligent acts assigned is:

“The motorman and conductor on said ear failed to keep a good and reasonable lookout in approaching the place of injury to avoid running down persons using said street at said place, * * * in their failure to use due care to discover and avoid injuring persons in the use of said street.”

It certainly is the duty of those operating street cars in the streets of cities to use ordinary care to avoid injuring persons using the streets. Plow is that duty, at least in part, to be performed? As said in Railway v. Hewett, 67 Tex. 480, 3 S. W. 708, 60 Am. Rep. 32:

“It may be assumed, as matter of law, that it is the duty of a street railway company to know that the track in advance of its car is clear. * * * This involves the proposition that such railway company is bound to use such diligence as will enable it to know whether the trade in front of its car is clear.”

That knowledge is acquired and that diligence is exercised most frequently by keeping a lookout to see that the track is clear; that is, to discover persons obstructing the track upon which the car is being operated. The Supreme Court does not state a different rule in San Antonio Street Railway Co. v. Mechler, 87 Tex. 628, 30 S. W. 899, nor does Judge Fly in San Antonio Traction Co. v. Court, 31 Tex. Civ. App. 146, 71 S. W. 777, to which we are referred.

In T. & P. Ry. Co. v. Watkins et al., 88 Tex. 20, 29 S. W. 232, after discussing Railway v. I-Iewett, supra, the Supreme Court, through Judge Denman, says:

“The true rule is that it is the duty of the servants of the railroad company, operating its trains, to use reasonable care and caution to discover persons on its track, and a failure to use such care and caution is negligence on the part of such company.”

The ultimate point in the rule is, we think, for the person operating the car or engine to haye a knowledge of conditions at the place where he is operating the car or engine, that he may by reason of such knowledge avoid injury. As seen from Railway v. Hewett, supra, and Railway v. Watkins, last above quoted, the Supreme Court uses different expression in stating the same duty. The motorman testified that he did not see Ruth until the moment his car struck her, and yet she was on or near the curb at the point from which she undertook to cross, while two ears passed her going west each going slow. She was standing, and her movements indicated that her intention was to cross the street at the place she then was. Some of the witnesses said she started to cross the street before each of the west-going cars, but each time returned to the curb. While some of the witnesses said she passed immediately behind the last west-going car, Mrs. Staus said:

“She stood on the cui-b and waited until the car got by. The car got well by her when she started across.”

Mrs. Wilts, after detailing Ruth’s movements for some moments before the accident, said:

“She stopped at or about the center line between our house and Mr. Langston’s, and started to step down off the curb, and I think maybe she stopped after seeing the car coming and she stepped back up. It was the car coming to town. She stepped back up on the curb, .and waited for that car to get by, and then there was a second car coming; there were two cars coming toward town; then she stood there on the curb until this second car got by, and then stepped down to walk across the street. She was still on the curb until the second car got by.”

All of the witnesses for appellee were in position to see all cars, going each way, and hear when a gong was sounded. All of ap-pellee’s witnesses said the car that struck Ruth was going very fast. Witness Langston, a machinist, and ex-railroadman for 22 years, and had experience in estimating the speed of trains, said:

“The car before it struck the little girl was going about 30 miles an hour, but I am on oath, and I will say 25 miles an hour; I want to stay in the clear you know.” He further said the first time he saw the east-bound car coming on the south track it was coming down hill in front of the Lamar School. “It did not stop at Dallas street. I would say that it did not give any alarm, bell or signal as it passed-the westbound car just before it struck this child.”

The question complained of in the fifth and sixth assignments: Did the motorman fail to use ordinary care to discover and avoid injuring Ruth Allen? was one for the jury under the facts as we view them.

One of the negligent acts assigned was that appellant was operating the car “at a dangerously high rate of speed,” at the time of the accident. Assignments 3 and 4 complain of question 1, submitting that issue. Was the appellant negligent in operating the car at the speed he was operating it? The speed at which the car was moving at the time of the accident, as stated by the several witnesses, ranged from 8 to 30 miles per hour. The point made by the assignments is that it cannot be ascertained from the answer to the question submitted whether the jury found that the car was being operated at a dangerously high usual, or low rate of speed, and that therefore the finding that the speed at which the car was operated was negligent is without meaning. Probably two questions should have been submitted: Was the car operated at a dangerously high rate of speed, and if yes, was it negligence to so operate it? But the point of inquiry being negligence or no negligence in the operation of the car, under all the circumstances then surrounding the place, and the rate of speed at which it was operated being only secondary in point of importance in determining the issue of negligence, we think the form of the issue as submitted, while not to be commended, was at least intelligible. If no alarm was sounded at the crossing of Dallas street, and in passing the west-going cars, one car just west of Dallas street, and another approaching or at Dallas, it might be that a very low rate of speed would be exceedingly dangerous to a small child attempting to cross just east of Dallas street. There was no evidence offered as to what diligence, if any, was used by the motorman to discover Ruth while she was on the curb, or whether she could not have been seen from the car by the motorman before she left the curb to cross the street, or what diligence he used, if any, to see whether any person was in the act of crossing the street in that vicinity. The jury found that appellant was guilty of negligence in not discovering her. If she was on or near the curb at the time the west-going cars passed her, as several witnesses said she was, and her attitude and movements indicated that she was intending to cross the street then and at that point, it might be that her efforts to do so, and her position could have been seen by the motorman before she left the curb and passed behind the last west-going car, had he used ordinary care. The motorman said, only:

“I saw her just as the car struck her. She was almost in front of the car. I saw another car there at that time. The rear end of the car we were passing obstructed my view of her before she ran in front of my car. I had not seen her at all before she appeared in front of my car. When I first saw the child I was going from 12 to 14 miles an hour. The car coming into town and my car were almost even to each other at the time the child was struck. When I saw the child I applied the brakes.”

The jury found that appellant was guilty of negligence in failing to use ordinary care to discover the child, and in failing to give due signal and warning of the approach of the car at the place of collision. Should it be error in the form in which question one submitted the issue of negligence in operating the car at a dangerously high rate of speed, as claimed in the third and fourth assignments, we think it would not be reversible error, since the jury found that appellant was guilty of negligence in the two instances stated.

Error is claimed by the seventh and eighth assignments to the charge in submitting tlie eighth question. It is the contention under these two assignments that it is material error and a charge upon the weight of the evidence for the court when submitting a case upon special issues to group the issues and require a general finding on the issues grouped, as was done. We think to group the issues as in question 8 would not render the verdict part general and part special; nor does the charge place undue emphasis on any one or more of the issues assigned as negligent acts embraced in the group, but as we construe the charge it submits to the jury’s finding, without submitting again a finding as to negligence, on any one of the issues, but whether any two or more of the issues submitted as separate acts or omissions assigned as negligence combined to proximately cause the accident resulting in the injury to the child. We think it was not amenable to the objection made. To operate a car at a dangerously high rate of speed might not, alone, cause an accident; but, if so operated without a careful lookout to see that the street is clear of those who might contemplate or be in the act of crossing, or, without giving an alarm, either act or omission, taken separately might be negligence, and yet the two acting together might also be the proximate cause or causes of the accident, linked together in a natural chain of causation, or sequence of events.

By the ninth assignment complaint is made that appellee’s attorney, in the closing , argument to the jury, in discussing the measure of damages, said:

“The attorneys representing the plaintiff would get nothing except what the court allows them.”

It is claimed the remark was highly prejudicial and calculated' to and probably did increase the verdict, and was in violation of the rule that counsel shall be required to confine "the argument strictly to the evidence and to the argument of opposing counsel. There was no evidence offered as to how attorneys were to be paid for services. If error, is the remark reversible error? The remark was not upon a fact calculated to increase the verdict. The remark was more the statement of the law which an intelligent jury would already know than a statement of a prejudicial fact. By the remark the jury was advised virtually that the compensation to counsel would be under the supervision and order of the court, as in probate matters, the plaintiff being a minor, rather than paid under any contract between counsel and client. It does not even state to the jury that the compensation to be allowed by the court would be a part of the amount recovered. Certainly there is no appeal to the jury to increase the amount allowed in view of the compensation to be paid counsel. We think, possibly, it might have the opposite effect. A jury would know, without being told, that attorneys representing the child’s claims would expect, in some way, to receive compensation. Would not the remark tend to allay any fear or supposition in the mind of the jury that the amount allowed by them might not be paid to the appellee in an unjust proportion? The matter is largely within the discretion of the trial court. It was not reversible error to refuse a new trial on account of the remark.

By the tenth and eleventh assignments, it is insisted that the verdict is grossly excessive. The child’s limb was crushed almost to the knee, necessitating an amputation at the kneejoint. The verdict allowed was $15,000. The surgeon who performed the operation at some length detailed the circumstances of the operation and his treatment of the child for a period of about six weeks thereafter. She continued to suffer after she came out from under tire anesthetic. In order to amputate the limb at the kneejoint and save that much of the leg, the surgeon had to use some of the bruised skin, more or less infected from dirt rubbed in it, which meant more or less infection and suffering. After having become infected and inflamed, it was more or less painful every time dressed. The bones were splintered and broken clear into the kneejoint. The surgeon thought the child made a good recovery, and had no reason to believe she would suffer" from nerve tumor, but had not seen the knee for a long time before testifying. Did not know if she has pain in the leg at all. Did not think she will suffer from pain in that leg. Thinks the most pain she will suffer will be soreness that will come at first from wearing an artificial leg, but that always wears away after you become used to the artificial leg. The child would always have the artificial limb gait, though not always noticeable. Should she succeed in getting an artificial limb that would work successfully, she would have to change them from time to time as she grows taller. As to whether the child will suffer depends upon how good a job has been done in taking off the leg. They will suffer usually more from a little tumor that forms in the end of the nerve—that nerve endeavors to go out and establish communication with something. It is a nerve there with a function. Then testified what was done to prevent the pain. Mrs. Allen, the child’s mother, testified that Ruth still suffered from the loss of the limb, and would often cry out in her sleep because of it; that on one part of the end of the stub the skin and flesh had not cushioned, so that it was a thin, bare tender skin only, protecting the end of the bone, thus necessitating further operation before she can wear an artificial limb.

.There is no fixed rule as to the amount of the damages. The jury thought that the amount allowed would not be excessive. Judge McMeans, in Railway v. Brouillette, 61 Tex. Civ. App. 619, 130 S. W. 886, in which a writ of error was denied, and in which the jury had assessed the damages to a boy 2 years and 7 months old' at §30,000 for the loss of his leg below the knee, reduced the amount to §20,000. Judge Neill, in Railway v. McLeod, 62 Tex. Civ. App. 270, 131 S. W. 311, held that a judgment for §15,000 for injury to a boy 14 years old in the loss of a foot was not excessive. In Railway v. Harris, 172 S. W. 1129, a verdict for §20,000 for loss of a foot was held by Judge Carl not to be excessive. In Railway v. Green, 182 S. W. 392, a verdict for §18,000 for loss of a leg was held not to be excessive. Ruth is shown to be a child of average intelligence. There was no evidence of earning • capacity. We construe the opinion of the Supreme Court in Gainesville, H. & W. Ry. Co. v. Lacy, 86 Tex. 244, 24 S. W. 269, as holding that a jury can take into consideration what would have been the earning capacity of Ruth Allen after arriving at her majority without pleading or evidence. To the same effect is Railway v. Jackson, 38 Tex. Civ. App. 201, 85 S. W. 445, and the eases cited.

Binding no reversible error, the case is affirmed.
      <®c^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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


author: HIGHTOWER, G. J.

text:
    HICKORY JONES CO. v. METTAUER.
    (No. 398.)
    (Court of Civil Appeals of Texas. Beaumont.
    Feb. 1, 1919.)
    1. Teial <@==>352(1) — Submission on Issue of Law.
    In action by seller of logs against buyer, a company, the purchaser of particular car of lumber from buyer, and assignee of buyer’s claim for price of car, trial court erred in submitting so-called special issue whether company was entitled to amount as credit on proceeds of car as against plaintiff; same being merely issue of law on pleadings and evidence.
    2. Appeal and Ebboe <@=>1062(4) — Haemless Eeeob — Submission of Issue of Law to Juey.
    In action by seller of logs against buyer, company which purchased particular car of lumber from buyer, and buyer’s assignee of price of car, submission of issue of law arising upon pleadings and evidence, in shape of special issue, to jury, held error harmless to defendant company.
    3. Assignments <S=>101 — Assignment of Oae of Lumbeb — Right to Peoceeds.
    If car of lumber, and the proceeds thereof when it should be sold, were assigned to seller of unmanufactured logs by buyer before it was delivered to company which purchased from buyer, proceeds of car belonged to seller of logs, though buyer owed company which purchased from him amount less than price of car, and fact that lumber was afterwards delivered to company purchasing from buyer, which was notified of assignment, would not authorize court to deduct amount owing company by buyer of unmanufactured logs from proceeds received from sale of car of logs by it.
    4. Appeal and Ebboe <@=>1040(10) — Haemless Eeeob — Lien.
    In action by seller of logs against buyer, company which purchased car of lumber from buyer, and assignee from buyer of price of car, errors in overruling defendant company’s special exceptions to plaintiff’s claimed lien, and in decreeing such lien in favor of plaintiff, held harmless to defendant company.
    5. Appeal and Eeeob <@=>930(3) — Review— Pbesumption — Finding in Favob of Judgment.
    A material issue not submitted, and not requested- to be submitted, will be presumed to have been found by the court in • favor of the judgment
    Appeal from Nacogdoches County Court; J. F. Perritte, Judge.
    Action by E. T. Mettauer against the Hickory Jones Company and others. From a judgment for plaintiff, defendant company appeals.
    Affirmed.
    Mantooth & Collins and K. W. Denman, all of Lufkin, for appellant.
    Blount & Strong, of Nacogdoches, for ap-pellee.
   HIGHTOWER, G. J.

This is an appeal from a judgment in favor of the appellee, Mettauer, against the appellant, Hickory Jones Company. Mettauer was plaintiff below, and brought this suit against M. J. O’Neal, Hickory Jones Company, and Sam R. Sayers, as defendants, but Hickory Jones Company alone has appealed from the judgment.

The cause of action alleged by the plaintiff below, substantially stated, was as follows:

He alleged that about the 15th of May, 1917, he entered into a contract with defendant O’Neal, under the terms of which he agreed to deliver to O’Neal at his sawmill at Chireno, in Nacogdoches county, certain hickory and ash logs, for which it was agreed that O’Neal should pay plaintiff §14 per 1,000 feet for all such timber so delivered; that plaintiff was the owner of such timber, and was selling and delivering the same to O’Neal, and that $4 per 1,000 feet was fixed as the purchase price of such timber, and $10 per 1,000 feet for its delivery, aggregating said sum of $14 per 1,000 feet; that O’Neal had paid plaintiff a sufficient sum of money under said contract to more than pay the purchase price of timber so delivered to O’Neal, and that plaintiff had credited O’Neal with such payment to the full extent of the purchase price of the timber, and also had given O’Neal credit for all that was paid him over and above the purchase price of the timber on his indebtedness to plaintiff for hauling and delivering said timber; that after such credits were allowed, O’Neal still owed the plaintiff $480.17, under the terms of said contract, for the hauling of said timber. Plaintiff further alleged that about the 17th day of June, 1917, plaintiff insisted that O’Neal pay him said smn of $480.17, and that on said date a carload of hickory lumber, which had been manufactured out of said hickory timbers, was standing on the railroad track at O’Neal’s mill at Ohireno, and that plaintiff on said date was objecting to O'Neal’s shipping said carload of lumber until O’Neal should pay him the amount of indebtedness owed him, as hereinbefore mentioned; that thereupon, and in order that O’Neal might be permitted to ship and deliver said car of hickory lumber to the defendant Hickory Jones Company, said O’Neal agreed with plaintiff to assign to him said entire car of hickory lumber, and. the proceeds thereof when the same should be sold, in payment of his said debt to plaintiff, as far as such timber or its proceeds would go, and that O’Neal did, in fact, assign to plaintiff said car of •hickory lumber and the proceeds thereof for such purpose. Plaintiff further alleged that notice of the assignment to him of said timber and its proceeds was immediately given to defendant Hickory Jones Company, to whom the car of hickory lumber was thereafter shipped, and further that the Hickory Jones Company had sold said carload of lumber, and that its manufactured value at the time it was sold by said company was $825.

It was further alleged by the plaintiff, in the alternative, that in the event it should be determined that said car of hickory lumber was not assigned to plaintiff by O'Neal, that nevertheless, plaintiff- was entitled to a laborer’s lien on said timber, under and by virtue of articles 5634 and 5645 of the Revised Civil Statutes of this state, and that plaintiff had fixed his lien thereupon by filing his claim, etc., in the office of the county clerk of Nacogdoches county, all of which was set out more in detail in the plaintiff’s petition; that the Hickory Jones Company was fixed with notice, both actual and constructive, of plaintiff’s said lien at the time it sold said carload of lumber and received the proceeds thereof; and that therefore Hickory Jones Company was liable to plaintiff to the extent of the value of said car of lumber. The plaintiff further alleged that the defendant Sam R. Sayers was setting up some kind of claim to the proceeds of said car of lumber in the hands of Hickory Jones Company, but that in fact said Sayers had no just or legal claim thereto, but, on the contrary, that any such claim on his part was false and fictitious.

No answer was filed by defendant O’Neal or by Sayers. The defendant Hickory Jones Company answered by general demurrer, a number of special exceptions, and by general denial, and further by special denial of any assignment to plaintiff by O’Neal of said car of hickory lumber or the proceeds thereof; and this defendant further specially alleged that it purchased said car of hickory lumber from said O’Neal before it had any notice, actual or constructive, of the assignment of same as claimed by plaintiff, and that it had sold said car of lumber before notice to it of any such claim on the part of plaintiff, and that the proceeds received by defendant for said car of lumber amounted in the aggregate to $309.51, $252.75 of which amount it was due O-’Neal for the purchase price of said lumber, and that as to the balance, $56.76, said defendant had credited O’Neal on an indebtedness owed by O’Neal for-borrowed money, all of which it was authorized to do under agreement with O’Neal. Defendant Hickory Jones Company then alleged that as to the sum of $252.75 it either owed the same to the defendant O’Neal, or to the defendant Sam R. Sayers, who was claiming the same by assignment from said O’Neal, and in this connection it was alleged that this $252.75 had been in fact assigned by O’Neal to Sayers. At all events, this defendant alleged that as to the $252.75, it stood in the attitude of a mere stakeholder, and it tendered the same into court by its answer, and prayed the court to determine by its decree to whom the same should be paid, and to protect defendant Hickory Jones Company in all respects by such- decree, etc.

The case was submitted to a jury on special issues, and upon the verdict so returned judgment was entered in favor of plaintiff for the full amount sued for as against the defendant Ó’Neal, and as against defendant Hickory Jones Company judgment was rendered in favor of the plaintiff for $309.75, which was the amount received by Hickory Jones Company for said car of hickory lumber, with legal interest thereon, and it was further adjudged that the plaintiff was entitled to a lien upon said car of lumber, and that Hickory Jones Company was liable to plaintiff as for conversion of said lumber, etc. It was further adjudged that the defendant Sayers had no valid claim against the proceeds of said lumber in the hands of Hickory Jones Company, and further the judgment, in effect, provides that upon payment by the Hickory Jones Company to plaintiff of the sum of $309.75, interest, etc., the said Hickory Jones Company shall be protected as against all the parties to the suit.

We shall not attempt to treat the assignments of error found in appellant’s brief in the order presented, hut what we shall say will dispose of them all. The first special issued submitted to the jury was as follows:

“Did the defendant O’Neal transfer and assign the proceeds of said car of lumber to plaintiff before said car was moved from the depot at Chireno?”

To this question the jury answered “Tes.” Upon the evidence found in the statement of facts bearing upon this issue, we hold, without repeating the same in detail, that it was sufficient to warrant the finding of the jury on that issue.

Special issue No. 2 was as follows:

“Is the defendant Hickory Jones Company entitled to $56.70 as a credit on the proceeds of said car of lumber, as against the plaintiff, Mettauer?”

To this question the jury answered “No.” As to this issue it is contended by appellant that the court was in error in submitting the same to the jury, because the same was nothing more than an issue of law arising upon the pleadings and evidence in this case, and that it should not have been submitted to the jury in such form, and with this contention of appellant we agree. But it does not follow that the submission of this issue was such error as could be said to be prejudicial to appellant, and its assignment of error on that point is overruled.

Special issue No. 3 was as follows:

“Did the defendant O’Neal assign and transfer the proceeds of said above car to the plaintiff before he assigned the same to defendant Sam B. Sayers?”

To this question the jury answered “Yes.” There is no contention made by appellant on the answer of the jury to this issue, and, since there is none on the part of defendant Sayers, the same needs no further discussion at our hands.

In addition to the above issues submitted by the court, the following special issue was requested by appellant, and was submitted by the court:

“Special Issue No. 6. Did the Hickory Jones Company transfer said car of lumber to the Pioneer Pole & Shaft Company and take a bill of' lading therefor before Hickory Jones Company was notified, if it was notified, that O’Neal had made an assignment of the proceeds of this car to plaintiff? Answer this ‘Before’ or ‘After-wards,’ as you find the facts to be.”

To this issue the jury answered “after-wards.” Upon inspection of the evidence found in the statement of facts, we find that the same was sufficient to warrant the findings of the jury as to this issue, and overrule any contentions of appellant on this point.

Practically the undisputed evidence in this case shows that the defendant O’Neal owed appellee the full amount of money claimed by appellee against him in this suit, and, further, the undisputed evidence is to the effect that the Hickory Jones Company, appellant, had also advanced to the defendant O’Neal $56.76 'to enable O’Neal to pay certain labor, and the Hickory Jones Company is attempting to have this $56.76 deducted in its favor from the entire amount of proceeds received by it upon the sale of said car of lumber, and practically its whole complaint on this appeal is directed against the action of the court in failing to deduct this amount in its favor.

If it be true that this car of lumber was in fact assigned to appellee by O’Neal before it was delivered to Hickory Jones Company, then the proceeds of same belonged to appellee, notwithstanding the fact that O’Neal owed Hickory Jones Company said sum of $56.76, and the fact that the lumber was afterwards delivered to Hickory Jones Company, who was notified of this assignment, would not authorize the court to deduct the amount owed the appellant by O’Neal from the proceeds received from the sale by it of this car of lumber. While it is true, as before stated, that the court was in error in leaving to the jury, as it did by special issue No. 2, to determine the legal question as to who was entitled to this $56.76, nevertheless that error could not prejudicially affect appellant, as we have stated. And while it is true that under the facts in this case no lien was shown in favor of appellee upon said car of lumber, and while it is true that the trial court was in error in overruling appellant’s special exceptions to such claimed lien, and while it is true that the trial court was in error in decreeing such lien in favor of appellee, nevertheless, such errors have resulted in no prejudice to appellant, and appellant’s assignments on these points are overruled.

It is true that there was no specific finding by the jury to the effect that this car of lumber was assigned to appellee before it was sold and delivered to appellant, but it is also true that neither party requested a specific issue on that point. The rule is that any material issue not submitted and not requested to be submitted will be presumed to have been found by the court in favor of the judgment. Johnston v. Eraser, 92 S. W. 49.

This disposes, in effect, of all material assignments of error, and, believing that none of them should work a reversal of the judgment, they are overruled, and the judgment of the trial court is affirmed.
      ©E5>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes