author: MOURSUND, J.

text:
    MORALES v. CLINE.
    (No. 5983.)
    (Court of Civil Appeals of Texas. San Antonio.
    March 20, 1918.
    Rehearing Denied April 24, 1918.)
    1. Attorney and Client &wkey;>166 (1) — Action foe Compensation — Negligence — Evidence.
    Evidence heM insufficient to show bad faith or gross negligence such as would entirely bal-an attorney from recovering compensation, although he erroneously advised an alien that he could hold title to land in Oklahoma.
    2. Appeal and Error -&wkey;1056 (6) — Harmless Error — Exclusion of Evidence.
    Assuming that it was the duty of an attorney acting as a broker to exercise his skill as a lawyer, where he had erroneously advised an alien principal that he could hold land in Oklahoma, the remedy of the principal was damages arising from the advice. Hence, where it was not alleged or shown that the title of the principal had been attacked, there was no reversible error in excluding the statutes of Oklahoma from the evidence in an action by the broker for his commission, although it appeared that the principal to protect himself had transferred the property to a corporation organized for the purpose, since even with aid of such statutes, defendant could not have defeated the claim.
    3. Appeal and Error <&wkey; 1046(5) — -Harmless Error — Remarks of Court.
    Remark of court as to a fact not pleaded and not submitted to the jury, and which did not bear on any issue submitted to the jury, will not justify a reversal.
    4. Appeal and Error <&wkey;544(3) — Bill of Exceptions — Necessity.
    Where there is no bill of exceptions showing the matter, an assignment that the court gave a verbal instruction cannot be considered, although it was complained of in the motion for a new trial.
    5. Appeal and Error &wkey;>548(4) — New Trial <&wkey;>143(2) — Misconduct of Jury — Record.
    Where there was no bill of exceptions, and no evidence was introduced, and statement of facts did not show that affidavits filed had been introduced in evidence, to show that the jury took the evidence of a party on a former trial into the jury room, such matter cannot be reviewed under Rev. St. 1911, art. 2021. The method of proving misconduct of jury on motion for new trial is by introduction of testimony, and not by affidavit.
    6. Appeal and Error <&wkey;499(4) — Record-Instructions.
    The record must go further than show that a party excepted to a refusal to give special charges, and must show by bill of exceptions that the charges were presented at the time and manner prescribed by law.
    7. Brokers &wkey;>86(8) — -Compensation—Proof of Agreement.
    Findings that, after an exchange of lands, an agreement was made with plaintiff that his part of the commission should be a specified amount, held supported by the evidence.
    Appeal from District Court, Bexar County; J. T. Sluder, Judge.
    Suit by H. B. Cline against Martin Morales. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Chambers & Watson, of San Antonio, for appellant. Davis & lung, of San Antonio, for appellee.
   MOURSUND, J.

H. B. Cline sued Martin Morales for $3,500, being the balance alleged to- be due him as a commission for services rendered in bringing about the exchange of Morales 90,000 acres of land in Mexico, known as El Carmen, for a five-story hotel building and lot in the city of Muskogee, Okl., and for $800, alleged to be due him as attorney’s fees, and $65 alleged to have been paid by Mm at Morales’ request for stenographic work.

Plaintiff alleged an express contract to pay him 10 per cent, on the exchange valuation placed on Morales land, and in the alternative an implied contract, in which connection he alleged that 10 per cent, was a reasonable commission. He alleged that the deal was consummated by the exchange of deeds in February, 1916, and that after-wards Morales, without the advice and direction of plaintiff, and acting in accordance with the advice of his attorney, Manuel Garza Aldape, and of Oklahoma attorneys, organized a private corporation, under the laws of Oklahoma, for the purpose of taking and holding title to said hotel property in trust for the use and benefit of defendant, and about April 6, 1916, caused a deed to be executed conveying the hotel property to such corporation. He further alleged that, after the exchange of said properties had been consummated, in order to ratify and confirm such agreement and to evidence his indebtedness to plaintiff, Morales executed and delivered to plaintiff the following agreement:

“San Antonio, Tex., Feb. 4, 1916.
“To Whom it Elay Concern: I hereby certify that H. B. Cline sold my 195/9 leagues, in Sierra de Carmen, state of Coahuila, Mexico, for $80,000.00; that I am entirely satisfied with his work, and as proof of same, ho is the only one who has had an option to sell all my properties. I am also satisfied with his examination of title to Hotel Turner, in Muskogee, as well as his work in drawing up papers in the trade. He charged me only five por cent, in the deal, outside of his work as lawyer, and I heartily recommend him to not only all persons wishing to deal with him for my properties, but for any other properties.
“Very truly yours,
“[Signed] Martin Morales.”

He further alleged that on or about February 4, 1916, after the deal had been closed, defendant agreed and promised to pay him ■${,000 in full settlement of his claim against defendant for commission, and that $500 had been paid him. He prayed for judgment for the remaining $3,500, with interest, and for the other sums sued for, and in th'e alternative for $8,365 on implied contracts.

Defendant answered by general denial and pleas as follows: That he paid $500 in full satisfaction of plaintiff’s claim; that on or about September 25, 1915, a partnership was formed by plaintiff, defendant, and others, which was entitled to the commission for the sale of the El Carmen tract instead of plaintiff individually; that such partnership was dissolved on December 9, 1915, but it was agreed that commission for sale or exchange of El Carmen land would be divided in the proportions fixed by the partnership agreement ; that by reason of such partnership and said agreement plaintiff was estopped from suing in his own name to recover such commissions; that the corporation mentioned in plaintiff’s petition was organized upon the advice of plaintiff; that said corporation was organized under the laws of Oklahoma in good faith, and is a bona fide corporation, but, if not, then plaintiff is responsible for failing to properly and correctly advise defendant, and the trade would not have been consummated had defendant known that such incorporation was in violation of th'e laws of Oklahoma, but was advised by plaintiff that the charter was valid and would protect defendant; that plaintiff was defendant’s attorney and advised him in the entire exchange of said lands and, while acting as agent and attorney, represented and agreed with defendant that he had a purchaser for resale of the hotel property, and that no commission would be due until defendant had resold the property for not less than $80,000; that plaintiff further represented that he had a purchaser for said property, who had $105,000 in cash; that all of said statements were false and made to induce, and did induce, plaintiff to exchange his property for the hotel property; that plaintiff was also acting as defendant’s legal adviser for the purpose of passing on title to hotel property, and to examine the laws of Oklahoma and ascertain if an alien could hold land in Oklahoma, and in every way to guard and protect the interest of defendant, but plaintiff failed to protect defendant’s interest, and was guilty oí gross carelessness, negligence, and fraud, in that he did not advise defendant, who was an alien and did not understand the English language, that an alien could not hold or own land in Oklahoma, but advised and permitted defendant to accept a deed to said property in Oklahoma, by purchase or exchange of the kind set out in plaintiff’s petition. In this connection, defendant pleaded the articles of the statutes of Oklahoma relied on by him to show that an alien could not own land in Oklahoma acquired by purchase. I-Ie then alleged that plaintiff’s conduct was fraudulent and in bad faith and contrary to the interests of defendant, and that defendant would not have accepted a deed to the Oklahoma property, but for the advice of plaintiff and representation that he had a purchaser for the hotel property, and that defendant’s advice that he could own land in Oklahoma was a willful, intentional, fraudulent, or careless misstatement of the law. He pleaded all of the matters alleged by him in bar of plaintiff’s right to recover either as agent or attorney.

By supplemental petition plaintiff denied under oath that he was a partner of any of the persons named in defendant’s answer, and alleged that, if any partnership existed, it was dissolved by mutual consent on December 9, 1915; that if the alleged partnership was entitled to commission for exchange of the defendant’s land, such commission, by express agreement, was $8,000 ; and that after the dissolution of the partnership defendant settled the claims of all the persons alleged to have been partners of plaintiff for a share of said commission, and under the partnership agreement and the other agreement alleged by defendant plaintiff’s share of such commission was $4,800, and in the alternative prayed for the recovery of such sum, but alleged that the agreement pleaded by him to the effect that defendant would pay him $4,000 was made with the distinct understanding that the other partners had been paid, and that said sum should be plaintiff’s entire interest in the commission of $8,000. He specially denied each material allegation of defendant’s answer, and pleaded that defendant of his own accord, and not under advice of plaintiff, and at a time when he was ■not legally bound to exchange his land for said hotel property, voluntarily organized the corporation known as Bacon Investment Company, and took a deed to said hotel property in the name of said corporation dated April 6, 1916; that he took possession of said property, and he and said corporation have been in continuous possession ever since, collecting the rents therefrom; that at the time such deed was taken defendant had full knowledge of the laws of the state of Oklahoma, as pleaded by him. He further averred that by reason of such facts defendant was estopped from pleading the invalidity of the deed from Loomis to the Bacon Investment Company, and that if plaintiff had been guilty of fraud or negligence, which was denied, defendant by his acts is estopped from relying thereon and waived the same. He further alleged that under the Constitution and laws of Oklahoma an alien has the right to own land for five ■years, and that in incorporated cities, such as Muskogee, under said Constitution and laws aliens were entitled to own and hold property for five years.

In answer to special issues the jury found: That defendant employed plaintiff as an agent to sell or exchange the El Carmen tract of land in Mexico, belonging to defendant; that plaintiff, in pursuance of such employment, procured an exchange of said land for the Turner Hotel in Muskogee, Okl., belonging to X A. Loomis; that defendant, in pursuance of such exchange, conveyed the El Carmen tract to Loomis and took a conveyance to and possession of the hotel property, either directly or through the Bacon Investment Company; that the El Carmen tract was valued by the parties for the purposes of said exchange at $80,000; .that in employing plaintiff to make said deal defendant agreed to pay plaintiff a commission of 5 per cent, upon said exchange price; that defendant paid plaintiff $500 on account of said commission on or about July 27, 1916; that it was not understood that such payment was in full settlement of the commission account; that plaintiff did not as an attorney at law and at the instance of defendant, in good faith, perform any legal services for defendant relating to the transactions involved in this suit as alleged in plaintiff’s petition; that plaintiff did not loan or advance $65 in connection with the matters involved in this suit; that plaintiff did not represent to defendant that he had a purchaser for resale of the hotel for $105,000; that plaintiff did'not agree that no commission would be due or payable until the property had been resold by defendant; that plaintiff was to receive his commission when the exchange should be consummated; that after the exchange had been consummated plaintiff and defendant agreed that plaintiff’s part of the commission for said exchange should be 5 per cent, on $80,000.

Upon this verdict judgment was entered in favor of plaintiff for $3,500 with interest from April 6, 1916, to date of judgment, in all, the sum of $3,742.

It is contended that the court erred in excluding certain articles of Oklahoma laws, relative to aliens owning land in said state; the proposition being that such evidence should have been admitted because defendant had pleaded that plaintiff was his attorney and broker and was guilty of fraud, misrepresentation, and gross carelessness in advising him as to the law.

Defendant alleged that plaintiff was his legal adviser to examine the laws of Oklahoma to ascertain if an alien could own land in that state, and that plaintiff had failed to advise him that he could not own land in Oklahoma. In another paragraph he assumes, without directly so alleging, that plaintiff told him he could own land in Oklahoma, and charges that such statement was incorrect. His testimony is to the effect that plaintiff was acting as his attorney and adviser prior to and at the time Loomis made the first deed to him, and did not advise him one way or the other as to whether an alien could own land in Oklahoma, and that he first heard that an alien could not own land when he went to Muskogee. This testimony is not consistent with his further statement that he did not remember about the time when plaintiff first told him about the Oklahoma law, whether it was before or after the contract was made with Loomis. He testified that in December, 1915, or January, 1916, he employed Manuel Aldape, a lawyer, formerly of Mexico to look after this transaction for him. He said that plaintiff was acting as his lawyer, and examined the title to the hotel property. He did not testify to any special employment of plaintiff to examine whether an alien could own land in Oklahoma. He testified that he did not agree to pay plaintiff $8Ó0‘ as attorney’s fees for examining the title and for translations, and did not explain by what kind of a contract he contended plaintiff became his lawyer, and became bound to investigate whether an alien could hold land in Oklahoma. He admitted that, after the contract was signed, he signed a document in which he offered plaintiff a certain percentage as commission and that he was ready to respect that agreement. This evidently referred to the instrument pleaded by plaintiff which was introduced in evidence, lie also admitted settling with the persons who were partners with him and plaintiff under the instruments referred to in his pleadings for their interest in the commission on the exchange of the properties in question.

Plaintiff testified he was employed by defendant to determine whether Loomis had good title to the hotel property and to translate the titles to El Carmen and write the deed for same. He testified that Mr. Aldape and defendant, while in his office, were discussing the matter of the exchange of the properties, and Aldape suggested the question of an alien’s right to hold land; that plaintiff told him he would look the matter up, and consulted Oye. and Ilubbell’s Legal Directory, and told them an alien could hold land in Oklahoma for five years. The evidence fails to show that his opinion was not sustained by the sources he investigated, and there is nothing tending to show that he acted in bad faith. This conversation arose, not only after the contract had been made between Loomis and defendant, but after it had expired according to plaintiff’s construction thereof, which is not disputed. After defendant and Aldape went to Oklahoma, acting on the advice of Oklahoma attorneys, the corporation was formed and the conveyance made by Loomis and wife to such corporation. The corporation, of which defendant owns practically all the stock, had possession of the property through tenants up to the time of the trial, drawing rents therefrom to the extent of $500 per month.

The testimony wholly fails to raise an issue of fraud or bad faith, or gross negligence with respect to advice as attorney such as would entirely bar plaintiff from recovering compensation. However, he recovered no compensation as attorney, so we are only confronted with his right to recover in his capacity as broker; but we will assume for the purpose of this opinion that his duties as agent required him to use his skill as a lawyer to protect his principal from loss, and that the testimony raises an issue as to whether he failed to exercise ordinary care by failing to correctly inform himself of the rights of an alien under the Oklahoma laws and to inform his principal of such rights, or by failing to consult the Constitution and statutes of Oklahoma, and therefore giving his principal an incorrect opinion with regard to the rights of an alien to hold land in Oklahoma. The statutes excluded from evidence would have proven that defendant could not acquire title to land in Oklahoma by a deed from Loomis to him, and therefore would be admissible to prove the information which we are assuming it was plaintiff’s duty to have given defendant. The penalty for such negligence would have been that defendant could recover of plaintiff the damages which naturally and proximately resulted from the wrongful act complained of. Mechem on Agency (2d Ed.) § 1291. He did not allege any such damages, nor did he prove any. He took title to the hotel property to a corporation organized for the purpose of holding such title, and he did not plead that the corporation had no title to such property, although he did plead that a deed from Loomis to him would convey no title. If he had attacked the title of the corporation, and we could pass upon its validity in this case, we would not be in a position to hold that the statutes excluded would have shown the invalidity of the title to the corporation. He did not plead that the corporation’s title had ever been attacked, and it appears that through the corporation he holds and enjoys the fruits of plaintiff’s work. He did not show that he attempted to get a rescission and failed, but simply says he was compelled to resort to the expedient of a corporation in order to be enabled to- legally hold and enjoy the property acquired by plaintiff’s efforts. We fail to see any reason for denying plaintiff a recovery upon the charge of negligence, and hold that the exclusion of the statutes did not constitute error such as would justify a reversal of the judgment, for, even with their aid, defendant could not have defeated plaintiff’s claim for commission.

It is also contended that the court erred in making the remark in the presence of the jury that the reconveyance to the corporation seemed to have been very effective so far. This remark was made in the course of a conversation between the court and counsel for defendant concerning the admissibility of certain testimony. We fail to see how it could have injured defendant. It did not bear upon any issue submitted to the jury, and defendant had not pleaded that the conveyance to the corporation was void. The remark did not constitute error which would justify a reversal of the judgment.

By the third assignment complaint is made to the effect that the court gave the jury a verbal instruction. There is no bill of exceptions in the record showing the proceedings with reference to this matter. The motion for new trial did not take the place of a bill of exceptions. Maffi v. Stephens, 49 Tex. Civ. App. 358, 108 S. W. 1008; Canal Co. v. McFarland, 50 Tex. Civ. App. 100, 109 S. W. 435. In the absence of a bill of exceptions, the ruling of the court is not presented in an authentic manner, and the assignment must be overruled.

The matter of the jury taking all of defendant’s testimony upon a former trial into the jury room, complained of in the fourth assignment, is not presented by bill of exceptions. Prior to the adoption of article 2021, R. S. 1911, such matters were undoubtedly required to be presented by bill of exceptions. Viewing it as misconduct under the article mentioned, it appears to be well settled that the method of proving same is by the introduction of testimony and not by affidavits. Dallas Electric Ry. v. Kelley, 142 S. W. 1005; S. A. & A. P. Ry. v. Wells, 146 S. W. 645; T. & P. Ry. v. Tucker, 183 S. W. 1188. The affidavits were not offered in evidence so far as is disclosed by the statement of facts, and, as above slated, there is no bill of exceptions. In addition, we may say that the statement under the assignment does not show that defendant was probably injured by the jury having his entire testimony. The assignment is overruled.

Assignments 5 to 8, inclusive, complain of the failure to give special charges. The record merely discloses that defendant excepted to the refusal to give the charges. It must go further and show by bill of exceptions that the charges were presented at the time and in the manner prescribed by law. We cannot assume that this was done. Connor v. Uvalde Bank, 172 S. W. 175; Rotge v. Simmler, 176 S. W. 615; Railway v. Dickey, 187 S. W. 184. The case was tried before chapter 177, Gen. Laws of the 35th Legislature (Vernon’s Ann; Civ. St. Supp. 1918, art. 1974) went into effect. The assignments must therefore be overruled. We will say, however, that there is no' merit in the contentions sought to be made.

By the ninth assignment it is contended that the verdict of the jury is contrary to the evidence; that there is no evidence that the property was ever listed with plaintiff at 5 per cent, and no evidence that same was sold or contract made as alleged in plaintiff’s petition. The finding that after the exchange of the lands an agreement was made between plaintiff and defendant that plaintiff’s part of the commission for exchange of said properties should be 5 per cent, of $80,000, and the finding that only $500 of said commission had been paid, are supported by the evidence, and, such agreement having been pleaded, the judgment can be upheld upon such findings. The properties were exchanged, and defendant cannot defend on the ground that the title to the hotel property was taken in the name of the corporation. There is no merit in the assignment.

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


source: Caselaw Access Project

author: HALL, J.

license: Public Domain

text:
    SCHAFF v. SCOGGIN.
    (No. 1292.)
    (Court of Civil Appeals of Texas. Amarillo.
    Feb. 20, 1918.
    Rehearing Denied April 24, 1918.)
    1. Master and Servant <&wkey;278(18) — Injury to Employé — Negligence — Question for Jury.
    Evidence, in action for the killing of head brakeman of a freight train, which with two others had been standing on a passing track, held sufficient to support finding of negligenco in backing the train.
    2. Appeal and Error &wkey;>1062(5) — 'Harmless Error — Submitting Immaterial Issues.
    That the court required the jury to find on immaterial issues is not reversible error, the number and character of questions propounded not resulting in confusing the jury.
    3. Appeal and Error &wkey;>743(l) — Assignment of Error — Specifying Ground of Error.
    Reference, under a proposition following an assignment of error, to a statement of a hundred pages in the first part of the brief, is not sufficient for a distinct specification of grounds of error relied on, required by Courts of Appeals rule 24 (142 S. W. xii).
    4. Appeal and Error &wkey;?742(6) — Assignments of Error — Specification of Error —“Distinct Specification of Error.”
    Propositions following an assignment of error, that it is prejudicial in submitting special issues to give undue prominence to a party’s theory of the case, and that repetition thereof by numerous questions calling for findings of evidentiary facts renders the charge argumentative. and is calculated to lead the jury to believe the court entertains certain opinion, are not distinct specifications of error required by Courts of Civil Appeals rule 24 (142 S. W. xii).
    [Ed. Note. — For other definitions, see Words and Phrases, Second Series, Distinct Specification of Error.]
    5. Appeal and Error <&wkey;1032(l) — Review-Showing Injury.
    Appellant under Courts of Civil Appeals rule 62a (149 S. W. x), prohibiting reversal for error at trial, unless the court consider it probably prejudiced him, must show prejudice from submission of numerous issues calling for immaterial and evidentiary facts.
    6. Trial <&wkey;352(6) — Special Issues — Submission.
    It is proper, in submitting the case on special issues, to ask leading questions, if not so framed as to suggest the answer.
    7. Trial i&wkey;352(5) — Submission of Issues— Grounds of Negligence.
    The several grounds of negligence which plaintiff pleads and supports by evidence should be submitted separately to the jury.
    8. Appeal and Error <&wkey;232(l) — Review-Instructions — Waiver of Objection.
    Objections to the charge, different from those made and filed before it was read to the jury, are under Acts 33d Leg. c. 59 (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 1971, 2061), waived.
    9. Trial <&wkey;349(l)— Submission of Issues— Evidence.
    A special issue need not be submitted, there being no evidence in support of it.
    10. Appeal and Error &wkey;>204(l) — Review-Objection Below.
    Objection to admission of evidence not urged in the trial court cannot be considered on appeal.
    11. Appeal and Error <&wkey;728(l) — Assignments of Error — Reference for Objections.
    Assignments of error to admission of evidence, merely referring to several bills of exceptions for the objections made, will not be considered. ■
    Appeal from District Court, Grayson County; C. T. Freeman, Judge.
    Action by Josie M. Scoggin against C. E. Scliaff, receiver. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Head, Dillard, Smith, Maxey & Head, of Sherman, and O. C. Huff and A. H. McKnight, both of Dallas, for appellant. Wood, Jones & Hassell, of Sherman, for appellee.
   HALL, J.

On the 21st day of April, 1916, W. A. Scoggin was killed at the station of Hodge, while serving as a hrakeman on a freight train. At the time of his death he was in the employ of appellant, the receiver of the Missouri, Kansas & Texas Railway Company of Texas. Appellee, as administra-trix, filed this suit to recover damages for herself and four minor children. The case was submitted to the jury upon special issues, resulting in a verdict and judgment in the sum of $26,000. It appears that the station of Hodge is located about four miles north of Ft. Worth; that it has extensive railroad yards, filled with tracks, stock pens, switches, cross-over track, etc.; that at the time of the death of W. A. Scoggin there were three freight trains in the yards, each of them having full crews. All tracks through this station run practically north and south. The east track is the main line. The next track west is the passing track, and the next is known as the stock track. There is a eut-ofl: connecting the main line with the passing track, the switch connecting the cut-off with the main line being north of the switch connecting the cut-off with the passing track. South of this cut-off was another cut-off connecting the passing track with the stock trade. The switch connecting the cut-off with the passing track is north of the switch connecting it with the stock track. The deceased was head brakeman on freight train No. 374 out of Ft. Worth, its destination being Denison. When his train arrived at Hodges it headed in on the passing track at the south end of the yards, a little less than a mile from the place where deceased was killed, and proceeded north until the end of the train was north of the switch connecting the passing track with the main line. When his train arrived in the yards, at about 9 o’clock at night, there were two southbound freight trains on the main line, Nos. 397 and 752, respectively, both headed south, 397 standing in front of 752. After train No. 374 stopped on the passing track, in the position above stated, No. 397 hacked north up the main line, and headed in south on the switch connecting the main line with the passing track, pulling through the cut-off connections connecting it with the passing track, continued south down the passing track until it cleared the switch connecting the passing track with the stock track. No. 752 then headed in from the main line on the same cut-off to the passing track, and, after having proceeded south to the south end of the yards, backed in on the passing track, left a part of its train, then pulled south onto the main line, and backed north, and headed in down the passing track to the switch connecting it with the stock track, headed in over this cut-off, and continued south down the stock track until it cleared the switch connecting the passing track and stock track. These three freight trains remained in the positions indicated until two north-hound passenger trains passed Hodge, going north on the main line. After both passenger trains passed the station, freight train No. 397 backed out of its position on the passing track over the cut-off where it had entered, and Taylor, the rear brakeman of decedent’s train, opened the switch of the cut-off at the passing track, deceased opening the switch of the eut-ofl: at the main line. Immediately after 397 cleared the switch at the passing track the engineer in charge of train No. 374, acting .upon the signal of rear brakeman, Taylor, immediately proceeded to back his train down the passing track, struck Scoggin, ran over him, and injured him in such a manner that he died within an hour. Appellee alleges eight or nine different (grounds of negligence, but the court submitted only four grounds, as follows: (a) Whether the employ és of-defendant were guilty of negligence in moving train No. 374 backward at the time, under the conditions and in the manner in which it was moved; (b) whether the engineer was guilty of negligence in moving said train without first ascertaining where deceased was; (c) whether the employ és were guilty of negligence in moving the train backward at the time without giving proper and sufficient signals of an intention to do so; and (d) whether the brakeman was guilty of negligence in not waiting to give the signal to the engineer to move said train backward until local train No. 397 had pulled out of the yards. All of these issues were found by the jury in favor of appellees. The defendant pleaded assumed risk, contributory negligence, and that the accident was caused m some way not due to the negligence of appellant’s employés.

The first assignment of error is predicated upon the refusal of the court to direct a verdict for the defendant, and it is insisted that the evidence fails to show affirmatively any negligence on the part of defendant which directly and proximately caused the death of deceased, and the proposition is further urged under this assignment that a scintilla of evidence or a mere surmise that there may have been negligence will not justify the court in submitting the case to the jury. A consideration of these propositions requires a review of all the testimony.

The statement of facts is voluminous, and for the purposes of this opinion it will only be necessary to detail such portions of the evidence as relate to the propositions urged. It was shown that deceased was an experienced and an efficient railroad employé. His train, No. 374, had 10 or 11 cars in it, and had stopped on the passing track in such position that the caboose was two or three car lengths north of the switch connecting the cross-over with the passing track. Fireman Reynolds testified while on the stand that he did not remember whether or not the engineer blew the whistle before he started to back the train, but when shown his written statement of the occurrence said that the engineer answered a back-up signal with three blasts of the whistle. Train Dispatcher Spicer, who was standing east of train 397, testified that he heard three blasts of the whistle of some train north of where he stood, and afterwards said that it came from northwest. Remembering the position of the trains in the yard, the length of the cross-over tracks, and the position of the deceased just before train No. 374 began to back south on the passing track, he must have been near the rear end of the caboose; and the jury was authorized to infer that, after closing the switch on the main line, he stepped back on the passing track in the rear of and near the caboose of 374, and to infer from the fact that he was an experienced railroad man that he did not hear the signal, if any was given, by the engineer; or the jury might have concluded from this evidence that train 374 did not give the back-up signal until it had moved some distance, and that Scoggin had already been injured when the whistle was sounded. It appears that there was no agreement between the crews of the various trains relative to the order of getting their train out of the yards. As stated, 397, which was on the main line at the time of the accident, proceeded south, as it had no work to do in tire yards. It further appears that 752, also headed south, had no work in the way of switching to do> at Hodge, but that 374 had to pick up some stock cars located on the stock track south of where 752 was standing, and the jury was warranted in believing that 752 should have left the yards, opening up the stock track for 374 before the last-named train would be called upon to move. It appears that 752 was making preparations to leave the yards by coming out on to the main line in the same way it had entered at the time 374 moved. The evidence with reference to back-up signals is not very clear. Fireman Reynolds, from his station on the left-hand side of his engine, says he saw back-up signals down in the south part of the yards, but, not knowing who gave them, did not transmit them to the engineer, Werline, It is inferable from this that such signals were given by the crew of 752. It was shown that Scoggin knew that his train had been ordered to pick up about 30 cars of stock in the yards. Taylor, the head brakeman of 752, testified that he told Scoggin that when 397 backed up it would give 374 a chance to back up and get the stock, and that Scoggin knew where the stock was situated. It is apparent, however, that 752 must also have left its position north of the stock cars standing on the stock track before 374 could reach them, and it is evident, therefore, that the jury did not believe this part of Taylor’s testimony. Taylor’s testimony is that, as soon as the engine of 397 cleared the switch of the passing track, he closed it and -signaled Werline, the engineer of 374, to back, not waiting until 897 had reached the main line. The distance between the main-line track, where deceased was operating the switch, and the passing track, upon which his train was standing, is shown to have been about 10% feet; and it appears that 397, with which he had to do, was moving when' his own train began to back. The fact that these two trains were moving, and the inference reasonably to be drawn from the testimony that train 752 was also moving, is sufficient evidence justifying the court in submitting to the jury the question of whether or not Werline and Taylor were guilty of negligence in moving their train at the time, under the conditions and in the manner in which said train was moved. It appears that the three freight trains had been standing in the yards almost an hour when deceased was killed, and that it was the duty of the deceased, and his co-brakeman Taylor, to inspect the train at all stops to see that the equipment was in proper order. The witness Moore testified that it was not customary to give notice before going under trains when they were stopped for an indefinite time, as on this occasion; that the night was very dark, and on that account neither the engineer nor fireman were able to tell who was giving signals; and this witness, with J. E. Davis, testified that according to the.custom in railroading, and on the defendant’s road, it was the duty of the engineer to know the position of his train crew under such circumstances.

Upon the contention on the part'of appellant that it is not shown what acts of negligence were the proximate cause of the death of the deceased, since it is not shown how he was killed, we think the evidence is sufficient to warrant the court in submitting the issue. Brakeman Taylor testified that he reached the deceased just after the train had passed over him, and asked him if he stepped back and let the caboose knock him down and the train run over him, and that deceased answered, “Yes;” and it is further shown that, in reply to a question by Wer-line, deceased said he had lined up the switch for the local. It cannot be contended that he was killed in an effort to board the caboose; his position on the train, being head brakeman, was upon or near the engine. While the train was backing Spicer testified that from his position on the- east side of train 397 he heard some one hello, and that after train 397 passed he ran over to train 374 and told Werline, the engineer, of that fact, and that after 374 had backed south far enough he could see Scoggin lying upon the passing track with his head toward the southwest, still conscious. We think there is sufficient evidence to support the findings of the jury upon all of the grounds of negligence submitted to the court.

The second assignment of error is a multifarious objection to the action of the court in submitting the case to the jury upon 33 special issues. Appellant has endeavored, however, by propositions following the assignment, to present the objections separately.

The first proposition is that the court erred in submitting the case to the jury upon issues that were immaterial, and in calling for findings of mere evidential facts upon which no judgment could be predicated. This assignment is not briefed in such manner as to require its consideration. Considered as a whole, the charge is not subject to the objections, at least to the extent of requiring a reversal of the judgment. While it is true that the case might have been submitted to the jury upon fewer issues, the mere fact that the court nas required the jury to find upon immaterial issues is not reversible error, unless the number and character of questions propounded has resulted in confusing the jury. Kelley v. Ward, 94 Tex. 289, 294, 60 S. W. 311; J. N. Guffey Petroleum Co. v. Dinwiddie, 182 S. W. 444. The answers of the jury to the several issues are clear, unequivocal, and show that the jury was not confused or misled by the number of questions asked.

Tinder this proposition appellant refers us to the statement of pleadings and preliminary statement contained in the first part of his brief. This statement covers more than 100 i>ages of the brief, and we are not required to gather from such an extensive reproduction of the evidence and pleadings matters pertinent to the contention urged by appellant under this assignment. Buie 24 (142 S. W. xii) for the Courts of Civil Appeals requires that assignments of error must distinctly specify the grounds of error relied on, and that such ground not distinctly specified in reference to that which is shown in the record is considered waived. Nowhere under this proposition does appellant endeavor to point out the particular issues subject to his objection.

The proposition is further urged that it is prejudicial error, in submitting special issues to the jury, for the court to give undue prominence to plaintiff’s contention and theory of the case. As an abstract proposition of law this is true, but we are not told, as required by Courts of Civil Appeals rule No. 24, what particular contention of plaintiff’s case is given undue prominence, and, while we have read the 33 questions over several times, we cannot say that the charge is subject to this objection. No sufficient statement follows this proposition. The same disposition is made of the third proposition, wherein it is urged that the repetition of the theory and contention of the plaintiff by numerous questions calling for findings of evidential facts renders the charge argumentative, and is calculated to lead the jury to believe that the court entertained the opinion that the defendant’s employes were guilty of negligence in the operation of the train. This is clearly not a distinct specification of error.

While the practice of submitting a case to the jury upon a multitude of issues, calling for findings of immaterial facts and mere matters of evidence, is frequently condemned by the appellate courts, under rule 62a (149 S. W. x), Court of Civil Appeals, it is necessary for appellant, in order to obtain a reversal of the judgment, to show that he has been prejudiced by the action of the trial court.

The objection is further made that some of tire interrogatories are leading. This objection is not tenable, as the rule is settled that, in submitting the case to the jury upon special issues, it is proper for the court to ask leading questions, provided they are not so framed as to suggest the answer to be made by the jury. We think it is the duty of the court, in the trial of negligence cases, to submit the several grounds of negligence alleged and proved by plaintiff separately. Dallas Hotel Co. v. Fox et al., 196 S. W. 647.

Appellee has objected to the consideration of assignments numbered 2 to 12, inclusive, because the objections urged to the charge and the several paragraphs thereof by appellant in his brief are not the objections made and filed in the court below. This court held in Memphis Cotton Oil Co. v. Tolbert, 171 S. W. 309 (16-18), that objections to the charge as given, when not properly made in the court below, could not be urged in this court, and all objections not made before the charge was submitted to the jury were waived under the Acts of the Thirty-Third Legislature, c. 59, p. 113 (V. S. Civ. St. arts. 1971, 2061). We have compared some of the objections in appellant’s brief with his objections to the charge given, as filed in the trial court, and find that the rule has been grossly violated. The purpose of requiring objections to be made to the charge before it is given to the jury is to avoid the very practice resorted to in this case. It is fair to the trial judge, if his charge is erroneous, to call his attention to the errors before it is given to the jury. Hence the statute provides that any errors not mentioned in the objections filed to the charge shall be considered waived. As an illustration of the condition of the record compared with appellant’s brief, the fourth assignment is as follows:

“The court erred in submitting to the jury the fifth question in the charge, as follows: ‘At the time that the train which struck deceased, if he was struck by a train, was started in motion, and during the time it was being moved away, was there another or other trains in said yard also being moved, and was there at said time a great deal of confusion and noise in said yards as a consequence of the movements of said train or trams and of the number of trains that were in said yards at said time?’ because (a) said question relates to and requires a finding of a collateral and evidential fact which would constitute no defense for judgment, and is not a submission of a substantial and material issue arising from the evidence in the case; (b) said question is leading, on the weight of evidence, argumentative, calculated to confuse and mislead the jury; and (c) calculated to lead the jury to believe that confusion and noise in the yards would relieve the deceased of negligence or would constitute negligence against the defendant; (d) said question is calculated to divert the attention of the jury from the material issue in the case; and (e) said question gives undue prominence to plaintiff’s contention and theory in the case, and was highly prejudicial to the defendant.”

The objection urged to issue No. 5, in defendant’s exceptions to the court’s charge filed in the court below, are as follows:

“Defendant excepts to question No. 5, because it is not a submission of any issue made by the pleadings and evidence in the case, but is the submission of a question that calls for a finding of the evidence, and any answer that the jury might make to the question could not constitute negligence or any basis of a cause of action upon which judgment could be rendered : and, further, because the same is misleading and confusing and calculated to confuse the jury.”

From the above quotations it will be seen that appellant is urging a number of objections in this court which were not called to the attention of the trial court. The statute above mentioned was enacted to prevent this practice. The effect of the statute is to require appellant, in his motion for new trial, to urge only the objections which were urged to the charge in the written objections filed before the instructions were read to the jury, and, since the motion for new trial is limited to the grounds of objections set up in the written objections filed in the trial court, other and additional grounds cannot be heard here.

The fifth assignment of error is grouped with the fourth. No proposition follows this assignment except this statement:

“Same as propositions under second and third assignments of error.”

The statement following this is as follows;

“The questions complained of are correctly set forth in these assignments. (Tr. 37-38.) Exceptions and objections were made by defendant to said questions before the main charge was read to the jury. (Tr. 43.) Appellant refers to and adopts statements under second and third assignments of error. Authorities same as under second and third assignments of error.”

We have heretofore shown that the statements under the second and third assignments of error are not in compliance with the rules. None of the assignments, from the second to the twelfth, inclusive, distinctly point out alleged error as required by the rules. Appellee’s objections to them are sustained.

The thirteenth assignment is based upon the court’s action in refusing to submit the following special issue, requested by defendant:

“Was the deceased, W. A. Seoggin, injured by attempting to get on some part of train No. 374 while it was backing up?”

There is no evidence in the record to authorize the submission of any such issue. On the contrary, the deceased himself stated that the train ran over him while he was standing on the track. It is insisted under the fourteenth assignment that the court should have submitted to the jury special issues upon the question of contributory negligence asked by defendant. The record shows that the issue of contributory negligence was fully submitted, as follows:

“Question 27. Did the deceased fail to exercise ordinary care to ascertain whether or not the train by which he was run over, if any, was moving backward towards him just before he was struck thereby, if ho was so struck? Question 2S. Was such failure, if any, negligence? Question 29. Did such negligence, if any, cause or contribute to cause the death of the deceased? Question 30. Was the deceased guilty of contributory negligence in being at the place he was when ho was struck by said train, if he was so struck, under the circumstances that you find from the evidence existed at the time?”

The sixteenth assignment of error is based upon the court’s action in admitting in evidence a certain rule printed in appellant’s time-table, upon the ground that there was no predicate for the introduction of secondary evidence of the contents of the timetable in force at the time of the accident. The objection urged in the brief was not urged in the. trial court, and cannot be considered here,

Assignments numbered 17 to 24, inclusive, complain of the admission of certain oral evidence with reference to the rules in appellant’s time-tables, and to state when the time-table introduced became effective; but under none of these assignments do we find what objections were made to the introduction of this evidence. For this information we are simply referred to four different bills of exception. The courts have uniformly held that assignments of this character should not be considered. Stone v. Stitt, 56 Tex. Civ. App. 465, 121 S. W. 187.

Several propositions are urged under the twenty-fifth assignment, which have been disposed of by what we have heretofore said. The only proposition remaining to. be considered is that the amount of the verdict, to wit, $26,000, is excessive. There is nothing in the record to show that the jury acted through prejudice or passion, and, while the amount seems to be large at first, when considered in the light of the entire record we are not prepared to say that it is unreasonably so.

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


text:
    ELSTUN v. SCANLAN et al.
    (No. 5977.)
    (Court of Civil Appeals of Texas. San Antonio.
    April 3, 1918.)
    1. Judgment &wkey;461(4)—Vacation in Equity— Judgment on Cboss-Bili^Showing of Nullity.
    To show that judgment for defendants on their cross-bill is a nullity, it must affirmatively appear from the judgment record that the court did not acquire jurisdiction over plaintiff’s person as to the cross-action.

      2. Judgment &wkey;>279 — Record — Service or Appearance.
    A judgment against plaintiff on cross-bill, supported by a judgment record silent on the question of service on plaintiff or his appearance, is not a nullity.
    3. Judgment <&wkey;407(4) — Vacation in Equi-tt — Lacic op Jurisdiction.
    Where the court was in error in asserting jurisdiction of plaintiff’s person on defendants’ cross-bill for lack of service or appearance, matters apparent of record, the error required correction by suing out writ of error, and, in the absence of showing that plaintiff by exercise of cfiligence could not have procured relief thereby, separate suit in equity will not lie to set aside judgment against him on the cross-action.
    4. Judgment <&wkey;407(3) — Vacation in Equity — Legal Remedy.
    If the record does not speak the truth, and extraneous evidence is necessary to establish the facts as to jurisdiction, suit to set aside judgment on cross-bill against plaintiff on the ground the court had no jurisdiction of his person is the proper remedy, but it must appear he had no opportunity to move for new trial during term.
    5. Judgment &wkey;>407(4) — Vacation in Equity-Legal Remedy.
    Failure to prosecute remedy by writ of error from judgment on cross-bill against plaintiff, erroneous because court had no jurisdiction of his person, does not deprive plaintiff of his remedy to proceed by separate suit in equity to vacate the judgment, if there are sufficient grounds aside from errors which should have been corrected on writ of error to entitle him to relief.
    6. Judgment <&wkey;432 — Vacation in Equity— Illness and Withdrawal oe Attorneys.
    Where plaintiff’s attorneys withdrew from the case without notice to him when he was so ill that he was forced to be absent from home and to rely absolutely upon them to protect his interests, he was entitled to relief in equity against a judgment against him on defendant’s cross-action, which he had no opportunity to defend, and which it would be inequitable to allow to stand, as he showed that trial on the merits would result in a different judgment.
    7. Judgment <&wkey;460(6) — Vacation in Equity —Pleading—Grounds for Relief.
    In suit to vacate judgment against plaintiff on cross-action against him in his prior suit, allegations, showing the homestead character of the premises involved, and that plaintiff’s wife was not a party to the suit in which the judgment was rendered against him, state no grounds for relief, where it does not appear that any defense to the cross-action could have been based on the ground that the premises were part of the homestead.
    Appeal from District Court, Cameron County; W. B. Hopkins, Judge.
    Petition in the nature of bill of review to set aside a judgment by Eli Elstun against Mrs. Annie Scanlan and others. From judgment sustaining demurrer to the petition, plaintiff appeals.
    Reversed and remanded.
    Ira Webster, of Brownsville, for appellant. J. A. Graham and Jones & George, all of Brownsville, for appellees.
   MOURSUND, J.

On April 2, 1915, Eli Elstun filed his petition in the nature of a bill of review, seeking to set aside a judgment rendered against him in cause No. 2107, in the district court of Cameron county on November 24, 1913, in favor of Annie Scanlan, J. P. Scanlan, and Philip Scanlan for a tract of land containing five acres, constituting part of the acreage property within the corporate limits of the city of Brownsville. 1-Ie alleged his ownership of the said tract of land, and that it was a part of his homestead, and specially pleaded title by limitation under the three and ten years’ statutes of limitation; that on May 7, 1910, he filed in the district court of Cameron county his petition for injunction, restraining said Mrs. Annie Scanlan, John P. and Philip Scanlan from entering upon, or attempting to enter upon, said land or interfering with plaintiff’s peaceable possession thereof; that a temporary injunction was granted and issued; and that on May 11, 1910, the defendants filed their answer. This answer was copied, but it will suffice to state that it consisted of a general demurrer, general denial, special denial of the allegations, plea that the charges made against them were false and made for the purpose of injuring and harassing the defendants, and that thereby defendants’ good names, standing, and credit in the community were injured, to their damage in the sum of $10,000, a plea that plaintiff had for two years appropriated the use, rent, and revenues of the property, of the reasonable value of $250 per year; and a prayer for the recovery of $10,500, and for general relief. Plaintiff then alleged that on October 4, 1910, during the October term of the district court of Cameron county, without leave of court and without notice of any sort to plaintiff or to his attorney, the defendants filed in said cause an instrument designated and indorsed “Defendants’ Original Answer.” This instrument was also copied in the petition. It did not purport to be an amendment, and consisted of a general demurrer; a general denial, a special denial that plaintiff ever had any title to or right of possession of the land described in plaintiff’s petition, and an allegation “that, on the contrary, these defendants own said land and have a good and perfect title thereto, and are entitled to possession thereof, and that on or about the 5th day of August, 1910, the plaintiff forcibly ejected defendants from the possession of said land, and still hold possession thereof, wherefore defendants pray that the injunction granted be dissolved, and that they have judgment for the title and possession of said land.” Plaintiff further alleged that such instrument did not constitute such a pleading and answer as could properly be taken cognizance of by the court, nor such as required plaintiff to answer had he had notice of the filing of same, and especially so in the absence of any kind of notice, and that he did not have any notice or knowledge of the filing thereof. He further alleged that said cause was, from time to time, continued from one term of court to another by operation of law, and without any other orders being entered therein or any other action had until April 22, 1913; that he procured the services of the law firm of E. I-I. Goodrich & Son, who prepared and filed his said petition for injunction, and believed in good faith that said firm was employed to represent him and look after his interest throughout the entire proceedings in said cause, and, so believing, relied upon them as his attorneys to represent him until the termination of said cause; that without the .knowledge of plaintiff and when he was not present in court said firm, on April 22, 1913, withdrew from said cause, as showu by an order on the minutes of the court reading as follows:

“Goodrich & Son withdrew as Attys. for plaintiff. Dismissed as to Pltff. cause of action for want of prosecution at Pltff. cost; on the 22d day of April, A. D. 1913.”

It was further alleged that plaintiff had for some time suffered from illness, the nature of which was set out, which became so serious that in the latter part of September, 1912, it became necessary for him to have special treatment and a change of climate and water; that for this purpose he went to Houston, Mineral Wells, and other places, and was never in a condition to return home until about November 1, 1913, at which time he was brought home by his wife in a helpless condition, and was confined to his bed until about January 1, 1914, and was unable to leave the house or attend to any kind of business until some weeks after said date; that during all of said time he believed in good faith that his interests were being looked after by attorneys, and, relying upon that, believed that if his case was called for trial, he would be notified thereof by his attorneys, and that, in case of his inability to attend court, they would make a proper showing why he could not be present and procure such postponement or continuance as might be necessary to protect his interests, and had no knowledge or notice of said order of withdrawal of said attorneys from said cause. 1-Ie also alleged that the minutes of said, court do not contain any order continuing said cause of action as to the so-called cross-bill of defendants, and that he had no notice or knowledge of the filing of said second instrument by defendants, nor that said cause was continued as to such instrument; that said order, dismissing as to plaintiff’s cause of action, contained no continuance as to defendants’ cross-bill, by its plain terms, and was in effect a dismissal of the whole cause. Pie then alleged that on .November 24, 1913, the court entered a judgment, copying the same in his petition. This judgment was rendered in the suit instituted by plaintiff by petition for injunction, and recited that it was rendered on “defendants’ cross-bill,” and that, as no answer thereto had been filed by plaintiff, it was “the opinion of the court that defendants should recover by occasion of the premises.” It further recited announcement of ready for trial by defendants, and that after hearing the pleadings, evidence, and argument the jury returned a verdict for defendants. The judgment awarded defendants the recovery of five acres of land, describing the same as in plaintiff’s petition, and then adding the statement, “and being same land described in a certain deed from R. B. Rentfro to William Scanlan, of record in Book E, pages 183, 184, Supplemental Records of Real Estate of Cameron county, to which deed and record reference is made for further description of the lands covered by this judgment.” Plaintiff further alleged, upon information and belief, that the only evidence introduced was a deed from R. B. Rentfro to Wm. Scan-lan, which was copied in the petition and is the same deed referred to in the judgment, and it was alleged that such deed described a different tract of land than the one described in plaintiff’s petition for injunction, and that the description therein corresponded with the description in the so-called cross-bill, but the description in the judgment corresponds with that contained in plaintiff’s said petition. He alleged that the verdict was returned pursuant to a peremptory instruction by the court. An allegation was also made to the effect that defendants had never at any time held or owned “any valid or legal title” to the lands described in said judgment or any part thereof, and that the deed introduced in evidence does not convey any title save such as was deraigned under and through an old labor leasehold title “such as the higher courts of this state, and the Supreme Court of the United States have held to be no title at all.” It was further alleged that in the latter part of January, 1914, plaintiff was informed that defendants were about to have a writ of possession issued by virtue of said judgment, and, in order to prevent this, and in view of the fact that the district court would not again convene until the following April, when a motion to set aside said judgment could be made, and believing that before that time he would have been dispossessed, “he attempted to carry said cause to the Court of Civil Appeals for the Fourth Supreme Judicial District, and, in order to stay the issuance and service of writ of possession, filed a supersedeas bond in said cause;” that by reason of the facts stated he had not been represented in the trial of said cause, and had no notice thereof, nor of the entry of said judgment, and no motion for new trial could be included in the transcript sent up to said Court of Civil Appeals, and through some oversight the assignments of error filed in his behalf were not included in said transcript; that because no motion for new trial or assignments of error were contained in the transcript said court dismissed his appeal. He also alleged that Ms wife was never a party in any manner to said suit in the district court in which said judgment was rendered for defendants, notwithstanding said land “constituted and was and is the community property and homestead of plaintiff and his said wife,” and that his wife knew nothing about the so-called cross-bill and the proceedings had thereon, until long after the adjournment of the term of court during which said judgment was entered.

To this petition the court sustained a general demurrer, reciting in the judgment that the petition upon its face was insufficient, and, further, that the court had taken judicial notice of all docket and minute entries in the original ease, and upon a consideration thereof, in connection with the petition, found the petition insufficient. These entries were copied in the judgment, and show: On October 4, 1910, defendants demanded a jury; on November 11, 1910, the case was continued by operation of law; on January 4, 1911, it was continued by agreement; on April 20, 1911, it was continued under rule for costs; on November 15, 1911, defendants obtained leave to amend; on November 25, 1911, a jury was demanded by plaintiff; on December 15, 1911, the case was continued by operation of law; on May 6, 1912, it was continued by consent, and on December 18, 1912, by operation of law; on April 22, 1913, Goodrich & Son withdrew, and cause dismissed as to plaintiff’s cause of action; on April 24, 1913, continued on application of defendants.

Appellant complains of the ruling of the court in sustaining the general demurrer, and contends that the court was not authorized, in testing a petition when attacked by general demurrer, to take judicial notice of the docket entries made in the original suit. We do not think the allegations show that the judgment sought to be set aside is void; that is, a judgment which is a nullity and may be attacked in any proceeding, direct or collateral. In order to show that the judgment is a nullity it would have to affirmatively appear from the judgment record that the court did not acquire jurisdiction over the person of plaintiff as to the cross-action. If the docket entries of which the court took judicial notice be excluded from consideration, and it be held that plaintiff’s petition shows that there was no appearance by him after the filing of the second cross-bill, the judgment record would be one which is silent on the question of service or appearance. Such a judgment is not a nullity. Fitch v. Boyer, 51 Tex. 336; Tennell v. Breedlove, 54 Tex. 540; Treadway v. Eastburn, 57 Tex. 209; Dunn v. Taylor, 42 Tex. Civ. App. 241, 94 S. W. 347. On the other hand, if such entries be taken into consideration, but it be held that entry of appearance by the attorneys was ineffectual to require plaintiff to defend against the second cross-action, the record would still be one which is silent as to service or appearance, and under that view would not be a nullity. The matters pleaded, in so far as they relate to the question whether the court had jurisdiction of the person of plaintiff as to the cross-action on which the judgment is based, are all apparent of record, and, if sufficient to show want of jurisdiction, the error in asserting jurisdiction was one requiring correction by suing out writ of error, and, in the absence of a showing that plaintiff by the exercise of due diligence could not have procured relief therefrom by suing out a writ of error, a separate suit in equity will not be permitted for the purpose of setting aside the judgment on such ground. Seguin v. Maverick, 24 Tex. 526, 76 Am. Dec. 117; Milam County v. Robertson, 47 Tex. 222; Moore v. Perry, 13 Tex. Civ. App. 204, 35 S. W. 838. If the record does not speak the truth, and extraneous evidence be necessary to establish the true facts as to jurisdiction, a suit to set aside the judgment is the proper remedy, but even then it must appear that the complainant had no opportunity to move for a new trial at the term at which the judgment was rendered.

However, we do not understand that the failure to prosecute a remedy of appeal by means of suing out writ of error would deprive the plaintiff of his remedy to proceed by separate suit if there be sufficient grounds, aside from errors which should have been corrected by suing out writ of error, to entitle him to relief in a court of equity. Seguin v. Maverick, supra. In this case, as against the general demurrer, we believe the petition states a cause of action on the ground that plaintiff, without fault on his part, has been prevented from presenting a good defense to the cross-action. The withdrawal of his attorneys from the case, of which fact he had no notice, coupled with his ill health, necessitating his absence, and absolute reliance upon his attorneys to protect his interests, caused a judgment to be rendered against him without negligence on his part. He shows that it would be inequitable to let such judgment stand, and that a trial upon the merits would result in a different judgment from the one rendered. The question of diligence must be determined in view of all the facts alleged, and the facts alleged in this case appeal to us as sufficient to justify relief from a court of equity.

As it does not appear that any defense to defendant’s suit could have been made, based on the ground that the premises in controversy constituted a part of the homestead, the allegations, showing homestead character of the premises, and that the wife was not a party to the suit in which the judgment was rendered, state no grounds for relief. Breath v. Flowers, 43 Tex. Civ. App. 516, 95 S. W. 26; Brown v. Foster Lumber Co., 178 S. W. 787.

The judgment is reversed, and the cause remanded.
      <S=sFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      @a^>Eor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes '


author: HIGHTOWER, C. J.

text:
    WESTERN UNION TELEGRAPH CO. v. GOODSON.
    (No. 279.)
    (Court of Civil Appeals of Texas. Beaumont.
    April 3, 1918.)
    1. TELEGRAPHS AND TELEPHONES <&wkey;5G(3) — Delay in Delivering Messages — Causes oe Action.
    Where telegraph company failed to deliver message notifying plaintiff to have his brother come to wait on their father, plaintiff had no cause of action on the theory that he was personally deprived of the privilege of going to see his sick father.
    2. Telegraphs and Telephones <&wkey;37(9) — Character op Message — Notice.
    A telegraph company which received for transmission a message addressed to plaintiff saying, “Send Oscar at once to help wait on Ms father. Lida sick,” was chargeable with notice of the relationship of the parties, the purpose of the message, the necessity of prompt transmission, and of probable injury from delay.
    3. Telegeaphs and Telephones <&wkey;74(l) — Delay in Delivering Message — Instructions.
    Where words of message and other facts were admitted except the date of its delivery to the telegraph company, the court should have submitted the question whether it was delivered on one day or the other without including in the instruction the words of the message which tended only to confuse.
    4. Appeal and Error &wkey;>1067 — Prejudicial Error — Instructions.
    In an action for delay in transmission of message, where the only question was the date of its receipt by the telegraph company, error in refusing to submit issue of which day it was received was prejudicial, where the evidence strongly conflicted on such point. r>. Trial <&wkey;267(l) — Instructions — Form-Requests.
    Though requested instructions are correct, the court need not give them verbatim.
    Appeal from District Court, Liberty County; L. B. Hightower, Sr., Judge.
    Action by W. A. Goodson against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals.
    Reversed, and remanded for new trial.
    F. J. & C. T. Duff, of Beaumont, for appellant, E. B. Pickett, Jr., of Liberty, for appel-lee.
   HIGHTOWER, C. J.

Appellee, W. A. Goodson, brought this suit in the district court of Liberty county against appellant, Western Union Telegraph Company, to recover damages for mental pain and anguish alleged to have been suffered by him in consequence of appellant’s alleged negligent failure to deliver to him a telegram reading as follows:

“Stockdale, Tex., 12/10/14. “W. A. Goodson, Phone Moore’s Bluff Pumping Station, Dayton, Texas. Send Oscar at once to help wait on his father. Lida sick.
“L. D. Hopkins.”

The case was tried with a jury, and was submitted upon special issues, and resulted in a verdict and judgment in favor of appellee for $1,250.

After appellant’s motion for new trial was overruled, notice of appeal was given, and proper bond was duly filed, and the case is now before this court for revision.

This is the second appeal in this case, and the disposition of the case on the first appeal, as made by this court, will be found in 188 S. W. 736. The first appeal was from an order of the trial court sustaining a general demurrer interposed by appellant to appel-lee’s petition, and this court, as will be seen from the report of the cáse above referred to, reversed the judgment of the trial court, and held that the petition was not subject to general demurrer, and the cause was remanded for a new trial in that court. There seems to be no change made in the petition since the former decision of this court, and the material allegations in the petition are fully shown in the former opinion, and it is therefore unnecessary to again comment at length upon the allegations of the petition.

It is again insisted by appellant on this appeal that the trial court erred in overruling its general demurrer to appellee’s petition, and this court is earnestly requested to recede from its former opinion on this point, and to now hold that appellant’s general demurrer should be sustained. We have very carefully again considered appellant’s contention in this connection, and have again reached the conclusion that appellee’s petition stated a cause of action against appellant, and that the trial court was correct in overruling the general demurrer.

On the first appeal, after discussing at some length the authorities cited by counsel for both sides in their briefs, this court reached the conclusion that appellee’s petition contained allegations sufficient to authorize a recovery by him for whatever mental pain and anguish he suffered in consequence of being denied the privilege of sending his brother, Oscar, to wait upon his sick father, if such damages were occasioned by negligence on the part of appellant, and that conclusion and holding was sufficient to dispose of the case as then before this court. But at the very conclusion of the former opinion, which will be found at the bottom of page 741, 188 S. W., this court used this language:

“From the authorities above referred to, and the views above expressed, we are of opinion that it was error in the court to sustain a general demurrer to plaintiff’s petition, and that the said petition sufficiently stated a cause of action, and we may say that, in our opinion, appellant not only has a cause of action because he himself was deprived of going to his father’s bedside and ministering to his wants, but that, in addition, he has a cause of action by virtue of the fact that he was deprived of the opportunity of sending his brother, Oscar, to wait upon their father when such nursing and attention was needed, to which the telegram called upon appellant to supply.”

On the trial from which, this appeal is taken, the trial court, acting in deference, evidently, to the holding of this court on the former appeal found in that portion of the opinion just quoted, submitted to the jury for consideration, not only such mental pain and anguish as appellee suffered in consequence of being deprived of the privilege of sending his brother, Oscar, to wait upon and nurse his sick father, but also in the same connection and in one question submitted to the jury for their consideration such mental pain and anguish as appellee suffered in consequence of his being deprived of going in person to wait upon and nurse his siok father, and in response to such charge by the court the jury returned a verdict in favor of appellee for the aggregate sum of §1,250.

It is strenuously insisted by appellant, not only that appellee was not entitled to recover on account of being deprived of the privilege of sending his brother, Oscar, to wait upon his father, but certainly 'that appellee was not entitled to recover anything against appellant in consequence of his being deprived of the privilege of going in person to see his father and wait upon him.

After very carefully reconsidering this whole ease, this court has reached the conclusion that it was in error in holding on the first appeal, as shown by that portion of the opinion above quoted, that appellee’s petition showed a cause of action for damages sustained in consequence of his being deprived of the privilege of going in person to see his sick father and wait upon him, and our conclusion now is that appellee was not entitled to recover anything in consequence of his being denied the privilege of going in person to see and wait upon his sick father.

We believe that the opinion of this court on the former appeal mentions, and in most instances discusses at some length, all the authorities cited by counsel that could have any bearing upon this point, and it would serve no useful purpose to again cite and discuss them, and for a clearer understanding of this opinion, reference is made to the former.

Wo have treated this telegram as being one which upon its face apprised appellee that his father was seriously sick, and we hold that appellant, the telegraph company, was chargeable with notice of the relationship that in fact existed between all parties named in the telegram, and also that appellant was chargeable with notice of the purposes for which this telegram was sent, in so far as such purposes’were reasonably to be inferred from the language used in the message, but no further. It is not claimed by appellee that any notice or information of any character whatsoever was given to appellant at the time this telegram was delivered to it for transmission, regarding the object or purposes of sending the same, other than that which is disclosed on the face of the telegram itself. This being true, we hold that the language of this telegram was reasonably sufficient to give notice to appellant of the following facts, and no more:

(1) Of the relationship which existed between all the persons named in this telegram; that is to say that W. A. Goodson, appellee, and “Oscar” named in the telegram, were brothers, and that “Lida,” named in the telegram, was the sister of W. A. and Oscar Goodson, and that all of these were the children of their father, who was sick at Stock-dale, and who needed nursing, and that L. D. Hopkins, who sent this telegram, was the husband of “Lida” and the brother-in-law of appellee and Oscar Goodson.

(2) That the telegraph company was informed by the language of this message that the purpose of L. D. Hopkins, appellee’s brother-in-law, in sending this message was to have appellee send his brother, Oscar, to Stockdale to wait upon their sick father.

(3) That the telegraph company had notice that appellee was seriously interested in having this telegram promptly transmitted and delivered by the company.

(4) The language used in the telegram reasonably indicated to appellant that appellee would probably sustain injury in the event this telegram should not be promptly transmitted and delivered to him, for the reason that he would be denied the privilege of complying with the purpose of the message, by sending his brother, Oscar, to wait upon his sick father.

There was nothing, however, in the language used in this telegram that reasonably indicated to appellant that the purpose of sending this telegram to appellee was to have him to go to his father in person and wait upon him, or that reasonably indicated to appellant that appellee was expected to go in person to his father, or that he would do so, but, on the contrary, the language used reasonably indicated to appellant that appel-lee was not expected to go to his father in person, and the command was not to bring Oscar or to come with Oscar, but “send Oscar,” and we think it would be unreasonable to hold that the purpose of sending this message to appellee was to have him personally attend his father, and that the language of the message negatives any such purpose; and it must be borne in mind that, while appellant was chargeable with notice of the purposes for which this particular message was sent, still it was only chargeable with notice of such purposes as were reasonably to be inferred by appellant from the language used in the message. And, since we axe of the opinion that the language employed in this message was not such as to reasonably indicate to appellant that the purpose of sending it was to have appellee to attend upon his father in person, but that, on the contrary, its purpose was to have appellee send his brother, Oscar, to attend their sick father, and since it is undisputed that no information or notice of any character was given appellant as to the purpose of this message, other than that which is disclosed by the message itself, we hold that appellant was not liable for any mental pain or anguish suffered in consequence of his being deprived of the privilege of personally attending his sick father, whether such deprivation was due to appellant’s failure to promptly deliver the message, or not. We think that none of the authorities cited hy appellee, when carefully analyzed, are in conflict with the conclusion we have reached on this point, but we shall not again discuss them, because they are all discussed, as before stated, in the former opinion.

It follows from what we have said that the trial court was in error, though induced by our former opinion, in permitting the jury to consider as an element of damages in this case appellee’s mental pain and suffering on account of being deprived of the privilege of personally attending and waiting upon his sick father. And since the amount found by the jury in favor of appellee was not itemized, and since it is impossible to tell what portion of the amount allowed was to compensate appellee because of his being deprived of the privilege of personally attending his father, the error in this connection cannot be cured by a remittitur.

There is another assignment of error made by appellant which, after careful consideration, we are of the opinion should be sustained. It became a material issue of fact upon the trial of this case whether the message in question was delivered to appellant at Stock-dale intime for appellee to have sent his brother, Oscar, to wait upon his father prior to the father’s death. As will be observed from the date on the message, it purports to have been delivered on the 10th day of December, 1914, but it was the contention of appellee that this message was, in fact, delivered to appellant at Stockdale on the 9th day of December, 1914, and that the date expressed on the face of the message was a mistake. It was shown, without dispute, that D. D. Hopkins, appel-lee’s brother-in-law, wrote this message with his own hand, date and all, and it is undisputed that, if the message was not delivered to appellant at Stockdale on the morning of the 9th of December, but was, in fact, delivered to appellant on the 10th, then, even if it had been transmitted and delivered with due diligence, appellee would not have had time to send his brother, Oscar, to his sick father before the father actually died. It is undisputed that the father died between 8 and 9 o’clock in the morning of December 11th. Now, it is assigned by appellant that the trial court erred in refusing to give to the jury a special charge asked by it upon this issue, reading as follows:

“Was the message involved in this suit delivered to the telegraph company at Stockdale on December 9, 1914, or on December 10, 1914? You will answer this question by giving the date.”

We find from an examination of the record that this charge was requested by appellant in due time under the rules, and that same was refused by th’e trial judge, and the judge’s action in doing so was properly excepted to. Now the chargd of the court upon this material issue was as follows:

“Question No. 1: Did the defendant, Western Union Telegraph Company, receive at its office in Stockdale, Tex., on the 9th day of December, 1914, a telegram to be sent to plaintiff, W. A. Goodson, addressed to Dayton, Tex., reading as follows:
“ W. A. Goodson, Phone % Irrigating Pumping Station, Dayton, Texas. Send Oscar at once to wait on his father. Lida sick. ■
“ ‘[Signed] L. D. Hopkins.’
“Answer this question ‘Yes’ or ‘No.’ ”

This charge was objected to by appellant in proper time by written objections, the objection being substantially that the same was confusing and did not call to the attention of the jury the main issue of fact as to the date of the delivery of this message, but this objection was by the trial court overruled, and the special charge asked by appellant, intended to cure this matter, was refused.

Now, there was no dispute at all as to the fact that the message in question was, in fact, delivered to appellant at Stockdale, in the very words and figures as hereinbefore set out, but the sharp issue as made by the evidence on this point was whether the date of its delivery was the 9th or whether it was the 10th of December, and appellant’s entire defense upon that phase of the case was based upon the contention that the date of the delivery of this message was the 10th of December, and there was no occasion whatever for the trial court’s submitting to the jury whether a message as set out in the charge given the jury was, in fact, delivered to appellant, and thereby permit the jury to deliberate upon that question, and we think that under the particular facts in this case, and in view of the state of the evidence, as disclosed by this record, the trial court was in error in refusing to give to the jury appellant’s special charge, which pointedly and succinctly left to the jury for determination the one question of fact in this connection, which was the date on which this message was actually delivered to appellant. If this special charge had been given, the jury would have seen at a glance that the vital issue submitted to them by the court on this point was the date on which this message was delivered, and not tire wording of the message itself, about which there was no contest, and this, we think, appellant was entitled to have submitted to the jury in such way as to confine their attention on that point to this vital issue.

In view of the state of the evidence on this issue of fact, as the same is reflected by the record before us, we have reached the conclusion that this error on the part of the court was not only calculated to injure the appellant, but that such error probably did injure appellant; for, in our opinion, after carefully weighing the evidence on this point, we believe that it preponderates in favor of the contention that this message was not delivered to appellant at Stockdale until the 10th day of December, 1914, and for that reason we think that we should not invoke, to save a reversal of this case, rule 62a governing this court (149 S. W. x). Of course, if this special charge had been given or some other charge which clearly and pointedly put this matter to the jury, and the jury had found that the date of delivery of the message was December 9th, we would not disturb the verdict, because in our opinion the jury’s finding on that issue had been against a preponderance of the evidence; but that is a different question from the one here under consideration.

It is suggested by appellee that there is nothing in this contention on the part of appellant, and that the only difference in the charge given by the court and that requested by appellant is a mere change of words, etc., and that the court was not bound to use the language employed by appellant in this special charge, but was authorized to use such language as it saw proper, just so the court properly and sufficiently submitted the issue here involved to the jury. We cannot agree with appellee that 'the only difference between these two charges was a mere change of words, but we do agree that the court was not bound to use the language employed by appellant in submitting this issue, provided it had given to the jury a charge which pointedly and clearly submitted this issue, concerning which there was such a sharp conflict in the evidence. We sustain the assignment on this point, and hold that under the circumstances of this particular case it was reversible error to refuse appellant’s special •charge above quoted.

All other assignments made by appellant are overruled, and we adhere in all respects to the views of this court as expressed in the former opinion, except in so far as same have been corrected and modified above.

For the errors pointed out, the judgment of the trial court is reversed, and this cause is remanded for a new trial.
      <S=pPor other oases see same topic and KEY'-NUMBER in ail Key-Numbered Digests and Indexes