author: PLEASANTS, C. J.

text:
    FLECK et al. v. MISSOURI, K. & T. RY. CO. OF TEXAS.
    (No. 7242.)
    (Court of Civil Appeals of Texas. Galveston.
    Nov. 25, 1916.
    On Motion for Rehearing, Dec. 14, 1916.)
    1. Appeal and Eeeoe <@=3743(1) — Assignments of Eeeoe.
    An assignment of error, not supported by a statement from the record as required by the rules, need not be considered on appeal.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. § 2999; Dec. Dig. <@=>743(1).]
    2. Judgment <@=3256(2) — Conformity to Findings and Proof.
    If the special findings of the jury, when considered with the facts established by the undisputed evidence, foreclose plaintiff’s right to recover upon the case made by the pleadings, judgment is properly rendered for defendant, although the special findings do not dispose of all the issues made by the pleadings and evidence.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 447; Dec. Dig. <@=>256(2).]
    3. Caeriers <@=>355 — Passengers — Duty to Produce Ticket — Ejection.
    Failure of a passenger to produce ticket or to pay fare when called for justifies ejection from the train, although the conductor knows that the passenger has purchased and lost his ticket, since passage ticketsj being assignable in the absence of restrictive conditions, are good in the hands of any one.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1416-1422; Dec. Dig. <@=>355.]
    4. Caeriers <@=>355 — Passengers — Refusal to Pay Child’s Fare.
    Refusal to pay fare for a young child over five years old justifies ejection of the passenger with the child, since the carrier could not put the child off the train and leave him with no one to take care of him.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1416-1422; Dec. Dig. <@=>355.]
    5. Carriers <@=>358 — Passengers—Ejecting for Failure to Pay Fare — Offer to Pay Fare.
    When a passenger has failed and refused to produce a ticket or pay fare after having been given a reasonable opportunity to do so and the train is stopped to put him off, his offer to pay fare after the process of ejectment has begun will not render his ejectment unlawful.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1434^-1438; Dec. Dig. <@=>358.]
    6. Carriers <@=>358 — Passengers—Ejectment —Right to Re-enter Train.
    A passenger, who has been given opportunity to procure the money to pay his fare before ejectment, has no right to re-enter the train for the purpose of procuring money to pay his' fare.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1434-1438; Dec. Dig. <@=>358.]

      7. Appeal and Error <§=>1067 — Harmless Error.
    In action by passenger for damages in being ejected from train for nonpayment of fare, refusal to submit plaintiff’s requested question to the jury whether the conductor, after plaintiff had been ejected, refused to permit her to reenter the train for the purpose of procuring money from another with which to pay her fare was not prejudicial, where it appeared that after such ejectment she procured money from another, and took an interurban car to her destination without suffering appreciable delay.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4229; Dec. Dig. <§=>1067; Trial, Cent. Dig. § 475.]
    8. Trial <§=>314(1) — Coercing Agreement oe Jury.
    A court’s statement to a jury, reporting, after a day’s deliberation, without verdict, that it had taken a long time to try the case and had been expensive, and that it was their duty, if possible, to get together on the issues, was not error as calculated to cause the members of the jury to surrender their convictions and render an improper verdict.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 472, 473, 747; Dee. Dig. <§=>314(1).]
    On Motion for Rehearing.
    9. Carriers <§=>385 — Passengers — Ejecting — Special Issues.
    Where the evidence was undisputed that a train was stopped and a passenger ejected for failure to pay fare at the station where the train usually stopped, it was not error to refuse to submit to the jury for plaintiff the question whether defendant’s servants rendered the plaintiff and her children such assistance and accommodation as was required by defendant’s rules and the circumstances of the case.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 1501; Dec. Dig. <§=>385.]
    Appeal from District Court, Harris County; J. W. Wood, Special Judge.
    Action by L. J. Fleck and another against the Missouri, Kansas & Texas Railway Company of Texas. From judgment for defendant, plaintiffs appeal.
    Affirmed.
    Baldwin <& Baldwin, of Houston, for appellants. C. C. Huff and A. H. McKnight, both of Dallas, and Baker, Botts, Parker & Garwood, of Houston, for appellee.
   PLEASANTS, C. J.

This suit was brought by appellants, L. J. Fleck and wife, against appellee to recover damages for the alleged unlawful ejection of Mrs. Fleck from a passenger train of appellee at its station in the city of Waco. The material allegations of plaintiffs’ petition as set out in appellants’ brief are as follows:

“Plaintiffs alleged that on or about the 25th of July, 1914, the plaintiff, Minnie Thomson Fleck, her niece, and her two children, took passage upon defendant’s passenger train at Houston, Tex., for Hillsboro, Tex.; that she and her niece bought tickets; that upon leaving Houston the defendant’s auditor took up her ticket and failed to return the same to her, and that she did not know this was necessary until the train arrived in Granger, or where the company changed their auditor; that after changing auditors (which was at Granger, Tex.), the second auditor demanded her ticket, when he was informed that she had delivered the same to the first auditor who had failed to return it to her, or at least that he knew she had a ticket to Hillsboro, and that she had a trunk check to show that she had a ticket; that if the first auditor had ever returned the ticket to her it 'had been lost. She alleged that the first auditor was then upon the train; that the second auditor had consulted him and others, and well knew that she had bought and paid for her ticket to Hillsboro; that, notwithstanding this, he demanded a repayment of her fare from Houston to Hillsboro, and also demanded the payment of fare for her little boy, who accompanied her, who was under eight and over five years of age. ,She alleged that she and her children were riding in a chair car, and that her niece was riding in the Pullman car; that she had no money with her with which to pay fare, and only had.in her possession 60 cents; that her niece, who was riding in the Pullman car, had money, a sufficient amount to pay fare for all parties, and she could have gotten it from her niece if she had been allowed to do so. She alleged that she insisted with the second auditor that she was entitled to ride on the proof of her having bought and paid for her transportation from Houston to Hillsboro; that the second auditor conferred with the first auditor, who was still on the train, and that the first auditor informed the second auditor that she did have her ticket to Hillsboro, and that he punched it and gave it back to her; and upon the second auditor informing her of those facts, she told him that if the first auditor had ever returned the ticket, it had been lost, and she was unable to produce it. Full and complete allegations of the harsh conduct of the second conductor, or insulting language used by him toward her, are alleged, and it is alleged that just as the train was running into the city of Waco, the auditor informed her that if she did not pay her fare for herself and child, that be would eject her; that she then informed him that she could get the money with which to pay her fare by going into the Pullman car to see her niece; that the auditor refused to allow her so to do, and that when the conductor and other servants of the defendant attempted to eject her at Waco, which was done in a rude, harsh, and insulting manner, she again informed them she could and would get the money with which to pay her fare and that of her child as demanded by the auditor if they would permit her to go into the Pullman car to her niece, and that they refused to allow her to do so; that after she was ejected she made an effort to go into the Pullman car for this purpose, telling the auditor and the conductor that she wanted to get the money with which to pay her fare, and that she could get it from her niece, if permitted to do so, and they obstructed the way and refused to allow her to enter the Pullman car for this purpose; that her niece had the money with which to pay their fares, and she would have advanced it to her if she had been allowed to enter tiie Pullman ear and made known to her niece her desire to get the money; that by this negligent conduct of the defendant’s servants in ejecting her and her children in the hot sun at Waco, without funds with which to complete their journey, and without affording her a place of safety or proper protection after being ejected, and the insulting manner and humiliating manner in which this was done, she was made sick, and that she had remained sick for many days, suffering great mental pain and anguish, and was compelled to appeal to strangers in the city of Waco for the necessary assistance to complete her journey to Hillsboro to where she had kin and friends living. She alleged her damages to be $10,000.”

The answer of defendant admits that Mrs. Fleck was ejected from appellant’s train at Waco on the date alleged, but expressly de-riles that defendant’s employes in ejecting her from the train did so in a harsh or rude manner, or used any insulting or harsh language. It admits that Mrs. Elect purchased a ticket at Houston, entitling her to transportation on defendant’s train from said city to the city of Hillsboro, and that said ticket was presented to defendant’s train auditor shortly after the train left Houston on its way to Hillsboro, but avers that after the ticket had been examined by said auditor, it was returned to her, and that she failed to produce it when called upon by the second auditor, whose duty it was to take up the ticket after defendant’s train from 'Houston reached the town of Granger, where it was consolidated with a train on defendant’s main line. The answer further alleged that Mrs. Fleck had with her an eight year old boy, for whom she purchased no ticket and refused to pay fare when it was demanded of her by said auditor, and that defendant had a rule, which was reasonable, requiring every passenger to buy a ticket and retain same in their possession until it is taken by the auditor whose duty it is to collect the tickets on the train on which the passenger is being transported, and that Mrs. Fleck was given every opportunity to present her ticket 6r pay fare for herself and son, but failed and refused to do so, and that after carrying her on the train from Granger to Waco, which consumed about two hours’ time, during which time she was repeatedly urged and requested to pay fare for her son and for herself, the employés of defendant, because of her continued refusal to comply with said request, were compelled in the discharge of their duty to eject her from the train when it reached the defendant’s station at Waco. It is averred that defendant’s em-ployés at all times treated Mrs. Fleck in a polite and courteous manner, and that she was répeatedly permitted, between Granger and Waco, to go in the car and consult with her niece, but that she failed to obtain money from her niece with which to pay her fare or the fare of her son, and made no effort to obtain it. The cause was submitted to a jury in the court below upon special issues, and upon a return of the verdict judgment was rendered in favor of defendant.

The undisputed evidence shows that the ticket from Houston to Hillsboro, which it is admitted Mrs. Fleck purchased and presented to the first auditor who took up tickets between Houston and Granger, was returned to her by said auditor, and was lost or misplaced by Mrs. Fleck before the train reached Granger, and she failed to produce it when the second auditor asked for it, and also failed and refused to pay any fare for her transportation to Hillsboro and to pay fare for her son, who was about eight years old. The second auditor was told by the first auditor that Mrs. Fleck had presented to him a ticket from Houston to Hillsboro, which he had returned her. The conductor and the auditor on the train between Granger and Waco each repeatedly asked Mrs. Fleck for her ticket or fare, and also asked for fare for her son, and she continued to refuse to comply with said requests. She was told that she would have to be put off the traifi unless the fare was paid, and just before she reached Waco she was informed that she would be put off there. When she was told this, she tendered to the conductor or auditor 50 cents to pay the fare for her son from Waco to Hillsboro, which was less than the amount required for said fare. She testified that her niece, who was on the train with her going from Houston to Hillsboro and who was riding in the Pullman car, had all of her money except the 50 cents, and that she had left with her niece in the Pullman car more money than was required to pay the fare of herself and son to Hillsboro. She further testified:

‘T didn’t say that he (the second auditor) came back so many times that finally it got to a point where he said it was humiliating to me and to him. I said the third time he came back he said that to me. I understood that every time he came back he was trying to tell me that I must either give him a ticket or the money. He had come back to me several times and told me that. That was while the train was running between Smithville and Waco. * * * From the time he left Granger he was coming back to me every little while, telling me that he had to have my fare. As to whether during all that time I had abundant opportunity to go back to the' Pullman if I wanted to. I had a ticket, and I had bought a ticket; I had abundant opportunity to go back to the Pullman if I wanted to. When I had an opportunity to go back to the Pullman to get money, I refused to, because I had a ticket. I didn’t get the money.”

The rule of the railroad company referred to in defendant’s pleadings is as follows:

“Only those persons who furnish transportation, or pay fare, and children entitled to free transportation, are entitled to ride on trains authorized to carry passengers. All others are trespassers, and should be ejected from trains, as herein provided.”

The special issues submitted to the jury were as follows:

“No. 1. Did or did not the defendant’s auditor or conductor accuse Mrs. Flock of lying while she was on defendant’s train on the 25th day of July, 1914?
“No. 2. Did or did not the defendant’s auditor or conductor accuse Mrs. Fleck of undertaking to beat her way while she was on defendant’s train on the 25th day of July, 1914?
“No. 3. Did or did not defendant’s auditor or conductor act towards, or talk to, Mrs. Fleck in a rude, insulting, or abusive manner while she was riding on defendant’s train on the 25th day of July, 1914?
“No. 4. Did or did not Mrs. Fleck, after the conductor or auditor told her when the train reached Waco that he was going to eject her, and before she was actually ejected, say to the conductor or auditor that if he would permit her to go to her niece in the Pullman she would procure money to pay fare for both herself and children.”

All four of these issues were answered by the jury in the negative. The insulting or rude language claimed by plaintiff to have been used by defendant’s employés during their 'controversy with Mrs. Fleck is that stated in the first two questions above set out. Thé defendant’s employés denied that they used such language, or that they were in any way rude or abusive in manner or speech to Mrs. Fleck. The findings of the jury upon each of the four issues submitted to them are amply sustained by the evidence. We think these findings of the jury, supplemented by the facts established by the undisputed evidence before set out, show that plaintiffs are not entitled to recover anything against the defendant upon the cause of action alleged, and judgment was properly rendered thereon in favor of defendant.

Appellant’s first assignment of error and the proposition thereunder is as follows:

“The court erred in rendering judgment for the defendant on the answers made by the jury to the four special issues submitted to them. The answers to the issues by the jury are not sufficient within themselves to authorize or justify a judgment for the defendant. These answers do not dispose of the issues of fact made by the pleadings, and are not, therefore, a proper basis for the judgment for defendant. Under the verdict of the jury the court should direct that no judgment be entered, and that the case be retried.”
“We submit the foregoing assignment as a correct proposition of law, to the effect, in substance, that in every case the trial court should so submit a case to the jury as to dispose of the issues of fact raised by the pleadings and the evidence.”

The assignment is not supported by a statement from the record, as required by the rules, and for that’reason does not require our consideration; but, waiving this objection to its consideration it cannot be sustained. It may be conceded that the special findings of the jury do not dispose of all the issues made by the pleadings and evidence, yet if such findings, when considered with the 'facts established by the undisputed evidence, settle the question of plaintiffs’ right to recover upon the case made by the pleadings, the case is disposed of, and judgment was properly rendered for the defendant.

The undisputed evidence shows that Mrs. Fleck failed to produce her ticket when it was called for by the conductor and the auditor. She was informed that she must produce the ticket or pay her fare. She had the money, or could have procured it from her niece, with which to pay fare, and, though given every opportunity and repeatedly urged by the conductor and auditor to pay the fare, and told what the consequences would be if she did not, failed and refused to comply with their demand. Upon these facts her ejection from the train, if done in a proper manner, was not unlawful, and the appellee cannot be held liable for any injury or damage that she may have sustained thereby. The following quotation from the text-writers show the general rule in regard to the right of a railway company to eject a passenger who does not produce a ticket when demanded by the conductor of the train and refuses to pay fare on the ground- that he has lost his ticket:

“The loss of a ticket by a passenger falls on him, not on the carrier. The reason is obvious. Passage tickets, in the absence of restrictive conditions, are assignable, and good in the hands of any one. If the loss of a ticket were a sufficient excuse for nonpayment of fare, the carrier might be subjected to the burden of carrying two or more persons for a single fare.” Fetter Carr. Pass., par. 279.
“A regulation, by which passengers are required to show their tickets to the conductor whenever called upon to do so, and making it the duty of such conductor to remove from the train all passengers who refuse to do so or pay their fare, has also been held to be reasonable and proper, being necessary to prevent imposition upon the carrier by making one ticket serve as a passport for more than one passenger. And it will not matter that the conductor may know that the passenger has paid for a ticket, or that he has already seen it, or that it has been shown to him more than once, or that the passenger may offer to prove that he has it. He must show it; otherwise the conductor will be justified in expelling him, in obedience to the regulation. And when a regulation of this kind exists, if the passenger should be so unfortunate as to lose his ticket, he may be required to pay his fare again.” Hutchinson on Carriers, par. 5721.
“As a general rule, a ticket (or pass) is the-only evidence, as between the conductor and the passenger, of the latter’s right to transportation. He must produce it when demanded, and if he has no ticket, or fails to exhibit it in accordance with the rules of the company, andrefuses to pay fare, he may be expelled. The fact that he may have had a ticket, but lost it, makes no difference.” Elliott on Railroads, vol. 4, par. 1594.

We believe that the rule announced in the affove quotations is supported by reason and the weight of authority. The following are some of the cases in which the rule is approved and followed: Railway Co. v. Smith, 84 S. W. 852; Harp. v. Railway Co., 119 Ga. 927, 47 S. E. 206, 100 Am. St. Rep. 212; Hibbard v. Railway Co., 15 N. Y. 455; Railway Co. v. Asmore, 88 Ga. 529, 15 S. E. 13, 16 L. R. A. 53; Railway Co. v. Herring, 57 Ill. 60; Jerome v. Smith, 48 Vt. 230, 21 Am. Rep. 125; Crawford v. Railway Co., 26 Ohio St. 580; Price v. Railway Co., 46 W. Va. 538, 33 S. E. 255. In the Hibbard Case, supra, the New York Court of Appeals, in discussing this question, say:

“I am of opinion that it was lawful for this railroad company to require that persons engaging passage on its cars should show their tickets whenever required by the company’s servants intrusted with that duty, upon pain of being left to travel the remaining distance in some other way in case of refusal. * * * Such regulations as will enable a railroad corporation to execute its difficult and responsible duties, insure the comfort and safety of its passengers, and protect itself from wrong and imposition, it has an undoubted right to prescribe, provided such regulations are reasonable and just. * * * By the rules and regulations of the New York & Erie Railroad Company, every passenger is required to exhibit his ticket, if he has one, to the conductor upon request, or, if he has no ticket, to pay his fare and accept one. And upon refusal * * * to comply with the regulation, it is made the duty of the conductor to remove such delinquent passenger from the cars. The regulation, it appears to me, is not unreasonable, for the company is responsible for its unjust application, or for enforcing it with undue severity. * * * The regulation was a necessary and a reasonable one, and unless railroad passengers are above all control, they are bound to observe reasonable and proper regulations while within the cars, claiming service and the care and foresight of the company. * * * If the rule laid down by the [trial] court is correct, and the conductor has only a right to see the ticket when he has no knowledge that the fare has been paid, there is nothing to prevent a passenger, who has paid his fare with the knowledge of the conductor, from passing his ticket over to a stranger to be used as evidence that he also has paid his fare and acquired a right to be carried in the cars. The ticket is the property of the railroad company, and is a part of the means by which it conducts its business. It is delivered to the passenger to be held by him, temporarily, for a special purpose, and who, to that extent, acquires a special property in it. When the journey is ended, or about to end, it is to be redelivered to the conductor. It serves a threefold purpose: It is evidence in the passenger’s hands that he has paid his fare and has a right within the cars; it insures the payment of the passage money by all who take seats; and, when it is redelivered to the company, it becomes a voucher in its hands, against the office or agent who issued it, in the adjustment of its accounts. To say that the passenger is bound to exhibit the ticket when reasonably requested, but if the conductor knew the passenger of whom the request is made had paid his fare, he had no right to enforce his request, is a contradiction in terms.”

The undisputed evidence in the instant case further shows that Mrs. Meek refused to pay fare for her son, who was over five years of age, and whom she was taking with her from Houston to Hillsboro. Her refusal to pay fare for her son justified the conductor and auditor in ejecting her from the train. The boy was taken on the train by her, and was in her care and charge. The railroad company could not lawfully transport him without charge, and neither could it put him oil the train and leave him with no one to care for him. In these circumstances it was the right of the company to eject Mrs. Fleck with the boy because of her refusal to pay his fare, independent of her refusal to pay her own fare. 5 Am. & Eng. Ency. of Law, 595; Railway Co. v. Hoeflich, 62 Md. 300, 50 Am. Rep. 223; Beckwith v. Railway Co., 143 Mass. 68, 8 N. E. 875.

Appellants requested the trial court to submit to the jury the following question:

“Did the defendant’s auditor and conductor, or either of them, after Mrs. Fleck had been ejected from the train at Waco, refuse to permit Mrs. Meek to enter the Pullman car for the purpose of procuring the money from her niece with which to pay the fare for herself and her boy, while knowing the purpose for which she was attempting to enter the car?”

Mrs. Fleck testified that after she had been ejected from the train she asked to re-enter the train and ¿o into the Pullman car and get the money from her niece with which to pay the fare for herself and son, and that this request was refused. This statement was denied by the defendant’s witnesses. The court refused to submit the question to the jury. We do not think the court erred in refusing appellants’ request.

It seems to be well settled that when a passenger has failed and refused to produce a ticket or to pay fare after having been given a reasonable opportunity to produce his ticket or pay his fare, and the train is stopped at a place other than a regular station or stopping place for the purpose of putting him off, his offer to pay fare after the process of ejectment has begun will not render his ejectment unlawful. Pease v. Railway Co., 101 N. Y. 367, 5 N. E. 37, 54 Am. Rep. 699. The general rule upon this subject is thus stated in Hutchinson on Carriers, § 1085:

“The question has frequently arisen whether, after a passenger has refused to pay the fare demanded or to produce his ticket, and the conductor has begun to eject him, or has completely ejected him, the passenger may then tender the fare or ticket required and be entitled to continue his journey upon that train. Upon this question the cases are not in harmony, but the prevailing rule, and the one supported by the better reasons, is that, even though he may once have refused to pay his fare or show his ticket, he may, at any time before the process of ejection is begun, comply with the demand and continue his journey on that train, but that where he so refuses and persists in his refusal, after being accorded reasonable time and opportunity to comply, until the conductor has the right and it is his duty to eject him, and the conductor has begun the process of ejection, either by stopping the train or applying force to the passenger when necessary, the passenger thereupon forfeits his rights as a passenger, and his ejection may be completed even though he may thereafter tender the performance demanded. The reason assigned in support of the rule is that if one passenger might, by his unjustifiable conduct, delay the train to put him off, another might do the same thing, thus producing the utmost irregularity in the running of the trains and jeopardizing the safety of the carrier’s property and the lives of other passengers. As this reason would not exist when the train has stopped at a regular station, the rule has been held not to apply in that event.”

It is to be observed that this difference between the effect of a belated offer to pay when the ejection occurs at a regular stopping place and when the train is stopped only for the purpose of ejecting the passenger applies only when the offer to pay the fare is made during the process of ejection and not after its completion. The trial court evidently recognized this distinction in submitting question No. 4, above set out, and refusing to submit the question requested to be submitted by appellants.

There is no authority to which we have been cited or which we have found which sustains the proposition that a passenger, who has been given every opportunity to procure the money to pay his fare before ejectment, either at a station or at a place other than a station at which the train is stopped for the purpose of putting him off, has the right to demand that he be allowed to reenter the train for the purpose of procuring money to pay his fare, which he could have procured, and was given every opportunity to procure, before his ejectment. In the case of Railway Co. v. Bunn, 41 Tex. Civ. App. 503, 95 S. W. 640, relied on by appellants to sustain their contention, it appears that Bunn, who was ejected at a water tank on the railway for failure to produce a ticket or pay his fare, was given no opportunity before his ejection to procure the money to pay his fare from a friend who was on the train with him, and in these circumstances the court held that the conductor of the train had no right to refuse Bunn’s request to re-enter the train for the purpose of procuring the money. We think the distinction between that case and the instant one is obvious. The authority cited by the court to sustain the decision in the Bunn Case (28 Am. & Eng. Ency. of Law, 168) lays down the general rule that a railroad is not required to permit a passenger who has been rightfully expelled to re-enter its train. This rule was followed by this court in the case of Railway Co. v. Turner, 23 S. W. 83.

The fact that the passenger in this case is a woman in no way affects the legal questions involved. It undoubtedly made it harder for the employés of defendant to eject her in the enforcement of the rules of the company, and she was given greater consideration and a much longer time in which to comply with the rules than would have been accorded a male passenger. After the conductor and auditor had been forced by persistent refusal to do what "the law clearly required of her, they were not required by any rule of law or of public policy, nor by the dictates of right and fairness, to permit her to re-enter the train upon her mere promise that she would obtain from her niece the money to pay her fare, which she had positively refused to do before her ejection. If it should be held that the court erred in refusing to submit the requested- question, such error should be held to have been harmless, for the reason that the evidence fails to show that Mrs. Fleck sustained any injury because of the refusal of the conductor and auditor to permit her to re-enter the train. In a very short time after such refusal she procured money from a person who was at the station at the time of her ejectment, and took an interurban car to Hillsboro. It does not appear that there was any appreciable delay in her arrival at her destination, or that she suffered any injury of any kind by reason of her going from Waco to Hillsboro on the interurban instead of on appellee’s train.

The complaint that appellee is liable to appellants for damage because when it ejected Mrs. Fleck she and her baggage and children were not put inside of the station building, but deposited several car lengths from the building, is without merit. If any rule in regard to the care and consideration due by a railroad company to its passengers be held to apply in this case, and such rule required that she be taken into the station building when she was ejected from the train, there is no evidence that she sustainéd any injury by the failure of the appellee’s servants to comply with such rule.

It appears that after the jury had held the ease under consideration for several hours they came into court, and through their foreman propounded to the court in writing a question regarding the meaning of one of the expressions in the charge. This occurred about 6 o’clock in the evening. After answering the question the court told the jury that, unless they reached a verdict by 8 o’clock that evening, they would have to stay together all night. The jury then returned, and did not report again until 12 o’clock the next day, when they came into court, and reported that they had not and could not agree upon a verdict. Thereupon the court asked them if it was impossible for them to agree upon a verdict, when one of the jury spoke up and said that he thought it might be, while another said that he thought it was impossible. Upon this report being made to the court, the court said to the jury substantially as follows:

“That it has taken a long time to try this ease, and that it was their duty to reason together, if possible, and to reach a verdict on the issues submitted to them. That it was expensive to try these long drawn out cases, both to the county and to the litigants, and that the jury should retire, and if possible, get together on the issues submitted to them. That the court would receive their verdict when they reached one.”

The jury retired, and at 6 o’clock that evening returned a verdict into court. We do not think appellants’ complaint of these remarks of the court to the jury should be sustained. The gravamen of the complaint is that these remarks “were calculated to cause members of the jury to surrender their convictions and render an improper verdict.” We do not think the remarks were reasonably calculated to produce the effect claimed by appellants. These remarks are very different from the instructions given the jury in the case of Railway Co. v. Johnson, 99 Tex. 340, 90 S. W. 164, by which the jury were told that it was proper and legal for them, in order to arrive at a verdict, to make concessions, provided their verdict was based upon the law given in the charge and the facts shown by the evidence. The Supreme Court held that the term.“to make concessions,” as used in this instruction, should or could be taken to mean that a juror might compromise and surrender his judgment without changing his convictions or judgment on the questions in issue, and that the charge was therefore erroneous. No such meaning can be given to the remarks of the court in this ease. The jury were only told that the trial of the case had taken a long time and had been expensive, and that it was their duty to reason together and agree if possible. That an instruction of this kind is not erroneous was decided by the Court of Appeals of the Fifth District in the case of Railway Co. v. Darwin, 47 Tex. Civ. App. 219, 105 S. W. 825, in which case a writ of error was denied by tbe Supreme Court. Tbe same ruling was made in tbe following cases: Railway Co. v. Barber, 163 S. W. 116; Commonwealth v. Peter Tuey, 62 Mass. (8 Cush.) 1; Railway Co. v. Carter, 164 S. W. 716; Watson v. Railway Co., 53 Minn. 551, 55 N. W. 742; Kelly v. Emery, 75 Mich. 147, 42 N. W. 795.

We have not discussed all of tbe various assignments of error presented in appellants’ brief, but have considered them all, and none of them, in our opinion, should be sustained. It follows that tbe judgment of tbe court below should be affirmed.

Affirmed.

On Motion for Rehearing.

Upon request of appellants contained in their motion for rehearing, we make the following findings of fact in addition to those contained in our opinion heretofore filed in this cause.

Mrs. Eleck testified:

“I told him (the auditor), T am sick, and don’t bother mo any more.’ Seven years prior to this I was. operated on in Dallas, and I have not been in good health for several years. I was again operated on eight months prior to this. I was nervous, could not sleep well at night, and was in bad condition physically. * * * It was the first time I had been able ,to travel for several years. The conduct of the auditor and conductor caused me great humiliation, and I was virtually prostrated for months afterwards. I have never recovered from it.”

As to this shock upon her mental and physical condition and as to her health being bad at the time, the testimony of Dr. Dunn in •every respect corroborates her statements, and it shows that he performed the second operation, and that she had been a sick woman from that day up to the time she was ejected from the car, and for many weeks thereafter.

Oampbell testified:

“Mrs. Fleck was ejected four car lengths, 80 feet each, from the waiting room. I did not assist her and her children to the waiting room.”

Defendant’s rules read as follows:

“Aged, infirm, crippled, intoxicated, feeble-minded, and sick persons and women and children shall be put off at a station, which is then open, and there placed in the custody and charge of the station agent to prevent their suffering from .exposure or accident.”

Mrs. Fleck further testified;

“I was then very nervous. I was suffering both mental pain and anguish. I could not keep from crying. I picked up my two grips, .and with my two children, while crying, shivering and shaking, started to the defendant’s depot. It was a hot summer day, and the grips were heavy, and I had to walk and carry my -grips with the children following. I saw a policeman, and another gentleman, and approached them. I asked them to intercede for me with the conductor; they told me they could do nothing with him; then one of the gentlemen volunteered to let me have the money and carried me to the interurban station.”

The foregoing testimony which is copied from appellant’s testimony is undisputed. The undisputed evidence further shows, however, that the train was stopped, and Mrs. Fleck ejected at the place at said station where the train usually stopped and passengers disembarked. Appellants insist that the facts shown by this testimony required the court to submit to the jury the question of whether “the defendant’s servants rendered the plaintiff, Mrs. Fleck, and her children such assistance and accommodation as was required by defendant’s rules and as the circumstances of the case demanded,” and that the failure to submit such issue was material error.

We cannot agree in this contention and do not deem it necessary to add anything to what is said upon this subject in our opinion heretofore filed herein. We have duly considered the motion for rehearing, and find nothing to justify a change in the conclusions expressed in our former opinion. The motion is overruled.

Overruled.
      É=>For otter eases 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: WIEESON, O. J. HODGES, J.

license: Public Domain

text:
    SMITH et al. v. TIPPS.
    (No. 1677.)
    (Court of Civil Appeals of Texas. Texarkana.
    Dec. 8, 1916.
    Rehearing Denied Dec. 14, 1916.
    Dissenting Opinion Jan. 8, 1917.)
    1. Limitation oe Actions ⅛=123 — Suit fob Land — Commencement oe Action — Statute.
    Under Act April 3, 1913 (Acts 33d Leg. c. 123 [Vernon’s'Sayles’ Ann. Civ. St. 1914, arts. 5693-5695]), effective July 1, 1913, providing that owners of the superior title to land retained in any deeds or their transferees shall have 12 months after the act becomes effective within which to sue for the land, and that otherwise such suit shall be barred, a suit for land was commenced July 7, 1913, when the first amended petition was filed seeking a recovery on a vendor’s lien note and a foreclosure of the lien and to have title to tbe land or a part of it decreed to him, or by the second amended petition filed January 8, Í914, asking that title to the land be declared to be in plaintiff, so that, though a third amended petition in trespass to try title was filed June'11, 1915, after a reversal and remand, the suit was not barred.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. § 539; Dec. Dig. <S=>123.]
    2. Limitation oe Actions <g=»123 — Commencement oe Action — Pleading Bad on Demurrer.
    A pleading bad on demurrer may be sufficient to stop the running of the statute.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. § 539; Dec. Dig. ®=ol23.]
    3. Vendor and Purchaser <S=»252 — Unpaid Notes — Title.
    The title remaining in the vendor is held by him for the benefit alone of the holder of the purchase-money notes so long as they remain unpaid.
    [Ed. Note. — For other eases, see Vendor and Purchaser, Cent. Dig. § 636; Dec. Dig. <S=>252.]
    4. Vendor and Purchaser <®^296 — Unpaid Notes — Suit by Assignee — Title.
    Where plaintiff, as the assignee of vendor’s lien notes, was also transferee of the title of one of the vendors, he could recover title and divest the title of the other vendor, who disclaimed any right or title to the land.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 882; Dec. Dig. <S=^296.]
    Hodges, J., dissenting.
    Appeal from District Court, Husk County; W. C. Burford, Judge.
    Suit by John M. Tipps against Clem Smith and others. Judgment for plaintiff, and defendant Smith appeals.
    Affirmed.
    See, also, 171 S. W. 816.
    By their deed dated November 1, 1906, R. H. Hightower and J. E. Watkins' conveyed the land in controversy to appellant, Smith, in consideration of the execution and delivery to them by Smith of his three promissory notes for $100, interest and attorney’s fees each, payable, respectively, Nov. 1, 1907, 1908, and 1909. By the terms of both the deed and the notes the vendor’s lien was retained on the land to secure the payment of the latter. November 7, 1908, the notes by an indorsement thereon were assigned to B. K. Johnson, who on December 14, 1912, joined by one T. C. Moore, assigned them to appellee, Tipps. Except $10 paid October 15, 1908, and $80 paid October 22, 1909, nothing seems ever to have been paid on the notes. By an instrument dated January 25, 1913, Hightower “sold, released, and forever quit-claimed all his title, rights, and claims of every kind” to the land to said Tipps. This suit was commenced by said Tipps by a petition filed May 1, 1913. As so commenced it was against said Smith, Johnson, and Moore to recover on the notes and to foreclose the vendor’s lien retained to secure their payment. Johnson and Moore, it seems, did not answer the petition. Smith answered, setting up as a bar to the recovery sought against him the statute of limitations of four years. Tipps thereupon, on, to wit, July 7, 1913, filed his “first amended petition,” in which he “adopted each and every allegation” in his original petition, conceded that two of the three notes sued on were barred by the statute of limitations, but denied that- the one maturing November 1, 1909, was so barred, and then alleged that Hightower and Watkins bought the land with money furnished by the former, that Hightower had conveyed to him, Tipps, the superior title in him as one of the vendors to Smith, but that Watkins had refused to do so. Tipps then alleged that effect of the conveyance made to him by Hightower was to pass to him the superior title remaining in Hightower, and Watkins as the vendors of the land, and prayed—
    “as in his original petition, for a foreclosure of his vendor’s lien, and for a sale of said property to satisfy same; and if the court should hold that the notes due November 1, 1907, and November 1, 1908, are barred by the statute of limitations, then the plaintiff prays that he have judgment against the defendants as prayed for in his original petition on the $100 note due November 1, 1909, with all interest and attorney’s fees thereon due according to the specifications in said note, and that after the satisfaction of said note that the balance of - said premises be appropriated and the title to same be declared in this plaintiff, or so much thereof .as the court might hold plaintiff is justly entitled to, and for attorney’s fees and interest on the $100 note dated November 1, 1906, and due November 1, 1909, with a vendor’s lien on the 80 acres of land described in plaintiff’s original petition, to which reference is here made, and that plaintiff would further ask that the title to the entire said 80 acres of land described in plaintiff’s original petition be declared to be in plaintiff herein, or so much thereof as the court may see proper to render, and that plaintiff have judgment against the defendants and each of them for his debt, for the possession of said land, and premises, interest and attorney’s fees, as prayed for in his original petition.”
    January 5, 1914, Tipps filed a pleading, which he denominated his “second amended petition,” in which he asked that the deed from Hightower and Watkins to Smith be canceled, and that the title to the land be declared to be in him (Tipps). He did not in this amendment state any facts or assign any reason entitling him to such relief.
    On the case made by the pleadings specified and evidence heard in support of same, a judgment was rendered awarding the land to Tipps. That judgment on an appeal prosecuted to this court by Smith was reversed because without support in Tipps’ pleadings. 171 S. W. 816.
    After the cause was remanded to the court below, on, to wit, June 11, 1915, Tipps filed his third amended petition, by which he changed his suit to a statutory one of trespass to try title with Smith and Watkins as defendants. Watkins answered, disclaiming any claim of right or title in himself to the land. Smith answered by a plea of not guilty by pleas of the three and five year statute of limitations, and by a plea setting up that Tipps’ right to recover the land because of the nonpayment by him (Smith) of the purchase money was barred because:
    “More than 12 months has elapsed before the commencement of this suit for the possession of said land under the superior title claim and the time given persons holding such claim to file suit for the possession of lands claimed by them as set up in plaintiff’s third amended petition filed' herein on the 11th day of June, 1915.”
    The trial was before the court without a jury. He found as facts the following: That in 1902 one Hightower and one. Watkins as partners purchased the land in controversy; that Hightower furnished the money with which to pay for it; that on November 1, 1906, Hightower and Watkins by their joint warranty deed conveyed the land to appellant Smith, the consideration to them being: Smith’s three notes of that date for IIOO,. interest and attorney’s fees each, due, respectively, November 1, 1907, 1908, and 1909;’ that a vendor’s lien to secure the payment of the notes was retained; that on November 7, 1908, the notfes were assigned by Hightower and Watkins to one Johnson, who, joined by one Moore, on December 14, 1912, assigned same to appellee; that, except the sum of $10 paid October 15, 1908, and the sum of $30 paid October 22, 1909, nothing was ever paid on the notes; that by a petition filed May 1, 1913, appellee sought a recovery against Smith of the amount of the notes and a foreclosure of the vendor's lien on the land; that in defense against the recovery sought Smith set up the statute of limitations of four years as a bar; that in the suit so commenced appellee on February 6, 1914, recovered judgment against Smith for the land; that the mandate reversing that judgment on appeal was filed in the trial court February 5, 1915; that appellee, after the filing of said mandate, to wit, on June 11, 1915, filed his third amended petition, and on that date had Smith, and on June 15, 1915, had Watkins, served with a citation issued on same; that Watkins answered disclaiming any claim of right or title in himself to the land; and that on January 25, 1913, Hightower conveyed the superior title remaining in him as a vendor of the land to appellee. On the facts as found by him the trial court concluded as matter of law that Hightower and Watkins were the common source of title, and that appellee, as the holder of the notes and of the superior title in Hightower as a vendor of the land, the notes being .unpaid, had a right to sue for and recover the land of Smith.
    The appeal is again by Smith from a judgment awarding Tipps a recovery of the land.
    T. J. Arnold, of Henderson, for appellant. R. T. Brown and J. X. Gray, both of Henderson, for appellee.
   WIEESON, O. J.

(after stating the facts as above). The theory upon which appellee was awarded the relief he sought was that, as the owner of the unpaid purchase-money notes and transferee of the legal title remaining in Hightower as one of Smith’s vendors, he was entitled on Smith’s failure to pay the notes to recover the land. That appellee was entitled to recover at least a part of the land is clear, unless his suit therefor was barred by force of a provision in the act of April 3, 1913 (General Laws, p. 250; articles 5693, 5694, 5695, Vernon’s Statutes), as follows:

“Those owning the superior title to land retained in any deed of conveyance, or his transferee and those subsequently acquiring such superior title by transfer, shall have twelve months after this act takes effect within which to bring suit for the land if their claim to the land is not otherwise invalid and unless such suit is brought within twelve months after-this act takes effect, they shall be forever barred from bringing suit to recover the same.” Article 5695.

The act took effect July 1, 1913. Ap-pellee’s third amended petition, as shown in the statement above, was not filed until June 11, 1915, nearly two years after the time when the act became effective. It is plain, therefore, if the filing of this petition was the commencement of appellee’s suit for the land, it was barred when commenced. We are of opinion, however, appellee’s suit for the land was commenced by the filing, July 7, 1913, of his first amended petition, in which, while seeking a recovery on the note due November 1, 1909, and a foreclosure of the lien retained to secure it, he also sought to have the title to the land, or a part thereof sufficient to satisfy the amount unpaid of the other two notes, decreed to be in him, or, if not, then by the filing, January 5, 1914, of his second amended petition, in which he asked that the title to the land be declared to be in him. While we did not think when the cause was before us on the first appeal (171 S. W. 816), and do not now, that the pleadings of appellee authorized the judgment obtained by him, we think they sufficiently showed the commencement of a suit for the land so as to stop the running of the statute of limitations. It has been repeatedly held that pleadings bad on general demurrer may be sufficient to stop the running of the statute. Killebrew v. Stockdale, 51 Tex. 529; Kauffman v. Wooters, 79 Tex. 205, 214, 13 S. W. 549; Day v. Van Horn Trading Co., 183 S. W. 85, 87.

Whether appellee, as the transferee of only one of Smith’s two vendors, 'was entitled as against Smith to recover all the land, or only an undivided half of it, is a more difficult question to answer. In view of the holding that the title remaining in the vendor is held by him for the benefit alone of the holder of purchase-money notes so long as they remain unpaid, we would not hesitate to say that the recovery had by appellee against Watkins on his disclaimer of any claim of right or title to the land operated to pass to appellee the title held by Watkins in trust for him, but for the further holding that the assignee of such notes cannot by suit against the vendor have the title remaining in him devested. Farmers’ Loan & Trust Co. v. Beckley, 93 Tex. 267, 54 S. W. 1030; Douglass v. Blount, 95 Tex. 369, 67 S. W. 489, 58 L. R. A. 699; Atterberry v. Burnett, 102 Tex. 118, 113 S. W. 528; White v. Cole, 87 Tex. 500, 29 S. W. 759. As, however, the latter holding was on the theory that the assignee as such has no interest in the land, we have concluded it should not be allowed to control in this case; for Tipps, as the transferee of the title in Hightower, did have such an interest. The conclusion reached is, we think, authorized by the ruling made in Anderson v. Silliman, 92 Tex. 560, 50 S. W. 579, where Judge Gaines said:

“We are also of the opinion that the legal title remained in the vendors, to wit, Anderson, Mrs. Snider, and Williams, and that the acquisition by Silliman,. the holder of the purchase-money note, of the legal title of Williams and Mrs. Snider, was sufficient, upon default in the payment of the note, to enable Silliman or his executrix to sue Anderson for the recovery of the land. White v. Cole, 87 Tex. 500 [29 S. W. 759]. Anderson had parted with his interest in the note, and he had no interest in the land, save the naked legal title. Silliman, if not entitled to claim the whole of the land, was entitled to an undivided interest, and, as a tenant in common, had the right to recover against one holding merely the legal title.”

The judgment is affirmed.

HODGES, J.

(dissenting). The land involved in this suit was originally owned by Watkins and Hightower, each holding a fee-simple title to an undivided half interest. The finding of the trial court that Hightower had furnished the purchase money when the property was acquired by him and Watkins is of no importance in the consideration of any question presented on this appeal. Their subsequent dealings with reference to the land, the division of the proceeds of its sale, and the absence of any claim that a resulting trust arose in favor of Hightower clearly indicate that some kind of an arrangement had been made between him and Watkins by which they were to share equally in the ownership of the land.

In November, 1900, Watkins and Hightower sold the land to Smith, the appellant, executed a joint conveyance, and took in payment three promissory notes payable to them jointly, in which the vendor’s lien was expressly reserved. These notes were after-wards assigned by Watkins and Hightower jointly to other parties, from whom the ap-pellee purchased them. When the appellee brought his suit upon the notes after maturity and sought a foreclosure of his lien, the defense of limitation was interposed as a bar to his right of recovery. He later amended his pleadings and sought a recovery of the land. The third amended original petition, that on which the case was last tried, contained two separate and distinct causes of action, one against Smith alone for the recovery of the land, and the other against Watkins for the removal of a cloud from the title. Haskins v. Wallet, 63 Tex. 213. It is alleged, in substance, that on or about the 25th day of January, 1913, the appellee was the owner and in possession of the land described in his petition, and that on that date the defendant Olem Smith unlawfully entered upon said land and ejected the plaintiff therefrom, and now unlawfully withholds from the plaintiff the possession thereof. As to Watkins it is alleged that he is setting up some sort of claim, title, or right to the land. The petition concludes with a prayer that the plaintiff have judgment against the defendant Olem Smith for the title and possession of the land, and for rents and damages, and that the defendant Watkins be cited to appear and show what claim, title, or interest, if any, he has in or to said land, that plaintiff’s title to the premises be cleared, and for general relief. This amended original petition was filed on the 11th day of June, 1915. On the 19th day of the same month the appellant, Clem Smith, answered by plea of not guilty and general denial. The answer also contained a plea of limitation authorized by the statute of 1913, which extinguishes the superior legal title when the debt is barred. On the 7th day of the following month Watkins, the other defendant, filed the following answer:

“Now comes the defendant J. E. Watkins in the above styled and numbered cause, and disclaims any interest to the land sued for by plaintiff, and denies all and singular the allegations setting up any interest, if any, in this defendant in said land.”

The proof showed that at the time the suit was filed and on the day of trial the appellant, Smith, was in possession, claiming the land under his original purchase from Watkins and Hightower; that all of the notes given by him, for the purchase money had been due for more than four years, and, with the exception of a small sum, no part of the purchase price had been paid. As proof of his title the appellee relied upon the ownership of the unpaid purchase-money notes, a conveyance of the superior legal title to an undivided one-half interest in the land from Hightower, and the disclaimer filed by Watkins after the institution of the suit. Upon this evidence the court entered a judgment in favor of the appellant for all of the land involved in the suit and against Watkins, divesting him of all the superior legal title to the undivided half interest formerly owned by him.

I fully concur in that portion of the opinion of Chief Justice WILLSON which holds that the defense of limitation was not available in this suit as a bar to the right of the appellee to recover any portion of the land. When the petition relied on to constitute the beginning of a suit presents a subject-matter of which the court may take cognizance, and so identifies the particular property in dispute as to give jurisdiction to the court, so that a judgment rendered in that proceeding will be, though merely erroneous, yet not void, the petition is sufficient to interrupt the period of limitation provided by. law. But where the petition is so defective that it fails to give the court jurisdiction over the parties or over the res in controversy, the judgment thereon would be subject to attack, and might be annulled in an independent suit instituted for that purpose alone. Such a petition would not be sufficient to stop the running of the statute of limitations, for the reason that it could not form the basis of a valid judgment. When the first amended petition in this case was filed, we must assume that the trial court had jurisdiction over the parties. While that petition did not itself describe the land, it referred to an instrument which did contain an accurate description. This method of pleading, though not in accordance with the rules adopted by our Supreme Court for the government of district and county courts, is not such an irregularity as to affect the jurisdiction of the trial court after judgment had been rendered. A judgment will not be vacated in an independent suit merely because of defects in the pleadings. 23 Cyc. 1004; Moore v. Britton, 15 Tex. Civ. App. 237, 38 S. W. 528; 1 Black on Judgments, § 306. This is true notwithstanding the judgment attacked should be reversed as erroneous on an appeal. It would therefore seem to logically follow that a petition sufficient to sustain a judgment against any attack except on appeal is sufficient .to constitute the beginning of a suit within the meaning of the statute. Browning v. Pumphrey, 81 Tex. 163, 16 S. W. 870. The first amended original petition in this case met the requirement essential to confer jurisdiction upon the court to render a valid judgment.

However, I am not able to agree to the further holding in this case that the appellee was entitled, under the evidence, to a recovery of all of the land sued for. The appellant, Smith, being in possession, could- be ousted only by one showing proof of ownership by title superior to that under which Smith held. As the holder of the unpaid purchase-money notes which had become barred by limitation, the appellee had no- interest in the land until he acquired the superior legal title from one of' the original vendors. See White v. Cole, supra, cited by Chief Justice Willson, and other authorities there referred to. Inasmuch as the appellee’s right to recover the land depended upon the possession of the superior legal title in addition to the ownership of the purchase-money notes, the interest he might recover must -be measured by the title he exhibited. Watkins and Hightower did not jointly hold an indivisible title to the tract of land, but each held a separate and entire title to an undivided half interest. We must keep in mind the -distinction between an entire title to a fractional interest in land and a fractional title to an entire interest. There may be a joint ownership of land, but there is no tenancy in common as to the title. One tenant in common may assign his title, or lose it by limitation, without disturbing his cotenant. The title itself is that intangible right or thing which the law regards as distinct from the property to which it applies. At the time the appellee filed his first amended original petition he had acquired the legal title from only one of the two original vendors; Watkins having refused to convey the title held by him. The appellee then held the legal title to only an undivided half interest, and could by the exercise of his right of rescission claim no more. Hightower could confer him no greater right that he (Hightower) reserved at the time he sold. However, even if we should regard the legal title of Watkins and Hightower as being indivisible, so that a conveyance sufficient to transfer a part transferred the entirety, there would be as much reason for holding that the deed from Hightower alone conveyed no title as for saying it conveyed it all; for, if they were joint owners of the title, one had as much right to refuse to convey as the other had to convey. Henee I conclude that the most the appellee could claim at the time he filed his third amended original petition was the legal title to an undivided half interest only.

As tending to support the ruling of the majority, the case of Anderson v. Silliman, 92 Tex. 560, 50 S. W. 579, is cited. In that case Silliman sued Blackaby and others to recover a tract of land. The evidence showed that the land had been sold by Anderson, Mrs. Snider, and Williams to Blackaby, and the vendor’s lien retained to secure the purchase money. The notes were afterwards acquired by Silliman by assignment. Silliman also acquired from Mrs. Snider and Williams, two of the vendors, a conveyance of the superior legal title. Upon the failure of Blackaby to pay the purchase money that suit was instituted against his heirs, who were then in possession, for a recovery of the land; and Anderson was made a party defendant, apparently in an effort to divest him of the superior legal title, which he had retained and had refused to convey to Silli-man. A judgment was rendered in favor of Silliman against Blackaby for the land, and against Anderson for the title. Anderson alone prosecuted a writ of error, but Blaek-aby’s heirs attempted to have the judgment against them reviewed by filing assignments of error. The Supreme Court held, in answer to the certified question from the Court of Civil Appeals, that the heirs of Blackaby were not in a position to assign errors as against their coappellee, Silliman. It was also held that Anderson had parted with his interest in the notes and had no interest in the land save the naked legal title, and that he was not entitled to complain of the judgment ; that the heirs of Blackaby, not having appealed and not being entitled to file cross-assignments of error, could not raise a question as to the correctness of the judgment against them on that appeal.

While the facts of that case as presented in the trial court were similar to those here involved, the record on appeal was materially different; in fact, the very question now before us — that is, whether the holder of the legal title to an undivided interest can recover all of the land from a vendee in default of payment of purchase money — was expressly left undecided. The situation be=fore us is the same as it would have been in that case had the Blackabys perfected an appeal and been in a position to complain of the judgment against them. It cannot be said in this case of the appellant Smith, as was said in that case of Anderson, that he had no interest in the land. Neither can it be said that the appellant is a trespasser, from whom possession could be recovered by a tenant in common; for the appellant held the equitable title to at least that half of the land which corresponded to the legal title retained by Watkins and which had not been acquired by the appellee: His failure to pay the purchase money did not ipso facto terminate the equitable title acquired by his contract of purchase. Such failure merely gave to the holder of the debt and the legal title the right to rescind and reclaim the land. The rule which permits a tenant in common to recover all of the land from one having no interest has no application to this case; for the very conditions which limit the ownership of the appellee to a fractional interest imply an outstanding legal and equitable title to the remaining interest, and the proof shows that the appellant holds at least an unextinguished equity of redemption in that interest.

In the trial below the appellee introduced in evidence the disclaimer filed by Watkins after the appellant had answered. In rendering judgment for the appellee against the appellant the trial court based his legal conclusions upon the sufficiency of this disclaimer to pass the legal title from Watkins to the appellee. At that time the right to recover the undivided half interest in the land represented by the superior legal title held by Watkins was barred, because no suit for that interest had been instituted within the period prescribed by the statute. See Vernon’s Sayles’ Statutes, art. 5694. It is true the appellee had before that time filed a suit in which he sought a recovery of all the land, but it is also true that he then owned only a half interest, and could recover only to that extent. A suit which prevents a running of the statute of limitations must be instituted by the owner of the land or the party having a right upon which the statutory bar operates. A stranger to the title has nothing to lose by the efflux of time, and a false assertion of ownership by him cannot aid the true owner, or legally disturb the possession of the adverse claimant. By the terms of the statute as amended by the act of 1913 the legal title becomes extinct four years after the maturity of the purchase-money debt, unless suit is sooner brought “by the original vendor or his transferee.” The appellee could not in any event claim to be a transferee from Watkins till after the disclaimer had been filed, but this occurred more than four years after the purchase-money notes had matured. When Watkins disclaimed any interest in or title to the land, his averments were literally true; for whatever legal title he theretofore held had been lost by the lapse of time, and he then had nothing to release or convey to the appellee. The effect of the bar of that title was to perfect and fortify the equitable title of the appellant against any legal demand originating from the vendor. From this I conclude that, without reference to the legal effect generally resulting from the filing of a disclaimer, conceding that the language of the disclaimer in this instance was sufficient to pass a legal title, the appellee could-acquire none from that source. For this reason alone, the judgment of the trial court awarding to appellee all of the land was erroneous.

But there is still another reason for disregarding this disclaimer as a source of title. It was admittedly filed, not only after this last amended petition was filed, but after the appellant, Smith, had answered. Hence, if it conveyed a title to the appellee, it did so after the suit had been commenced. Such a title cannot be made the basis of a recovery except by amending the petition after the title has been acquired. Ballard v. Carmichael, 83 Tex. 355, 18 S. W. 734; Collins v. Ballow, 72 Tex. 330, 10 S. W. 248; Teal v. Terrell, 48 Tex. 491; Harrison v. McMurray, 71 Tex. 122, 8 S. W. 612; Erp v. Tillman, 103 Tex. 574, 131 S. W. 1057; Towne on Pleading (2d Ed.) p. 617; 13 Ency. Ev. p. 58. It is true the disclaimer was here introduced in evidence without objection; but where the proffered testimony is incompetent to prove the facts alleged, an objection is not necessary. See the authorities cited above; also Williams v. Randon, 10 Tex. 79.

For the reasons stated, I have concluded that the judgment of the trial court should be modified so as to limit the recovery of the appellee to an undivided one-half interest in the land.
      «EteoFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HENDRICKS, J.

text:
    CHICAGO, R. I. & G. RY. CO. v. WHORTON.
    (No. 1071.)
    (Court of Civil Appeals of Texas. Amarillo.
    Dec. 13, 1916.
    Rehearing Denied Jan. 24, 1917.)
    1. Appeal and Error <®=»758(2) — Briefs— Statement of Facts.
    A brief which in its statement merely said that the trial court’s charges were “duly excepted to” is disapproved.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3093; Dec. Dig. ⅞⅛758(2).]
    2. Appeal and Error <®=>1170(5) — Reversal —Technical Errors — Rule of Court — “En Route’ ’ — Variance.
    There is no substantial variance between allegations that defendant railway company failed to furnish proper food, water, and rest to live stock • “en route” and proof that they were held on cars at destination without such facilities under Supreme Court rule 62a (149 S. W. x), prohibiting reversal, except for error probably resulting in an improper judgment, etc.
    [Ed; Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4066, 4542; Dec. Dig. <§=> 1170(5).]
    Appeal from Sherman County Court; C. H. Rowland, Judge.
    Action by W. A. Whorton against the Chicago, Rock Island & Gulf Railway Company. Judgment for the plaintiff, and defendant appeals.
    Affirmed.
    For decision on motion to strike exceptions from transcript, see 188 S. W. 949.
    Lassiter, Harrison & Rowland, of Ft. Worth, and R. E. Stalcup, of Dalhart, and J. Y. Powell, of Houston, for appellant. Stahl & Elliott, of Stratford, for appellee.
   HENDRICKS, J.

The liberality of this court in passing upon inadequate briefs is aften strained to the limit. For example, in this brief appellant, in challenging the court’s instructions by certain assignments, simply says in substance in its statements that the charges were “duly excepted to.” The function of a brief is to lighten the labors of an appellate court. Of course, the record should be succinctly abridged, but at the same time the statement should adequately present the record as a basis for the consideration of the assignment and the proposition. It is true in this brief the propositions may suggest the exception, but the statement performs a distinct office, one of verification, often overlooked in many briefs.

We have, however, examined the record, and would not reverse this case upon the points suggested applying rule 62a (149 S. W. x).

The only assignment necessary to particularly mention is the complaint of the refusal of the trial court to exclude from the jury, suggested by a specially requested charge, any damages on account of failing to furnish “proper feeding and watering facilities” at Texhoma, the place of the destination of the cattle. Plaintiff’s petition alleged generally that the cattle had been “en route” with “food, water and rest for 42 hours at least * * * and without proper facilities furnished to plaintiff,” etc.

The expression “en route” probably, in a literal sense, means “on the way”; but the allegations were broad enough, we think, to convey the meaning of the pleader that he was claiming damages to the cattle for the transportation of same during the time that the carrier, under the law, had the same under its control, especially as applied to the facts. Plaintiff testified that the cattle stood in the cars about five hours after arrival at Texhoma, and while they were still on the cars at that place he demanded of the agent water for his cattle, and that none was furnished him; neither did the defendant have facilities for that purpose.

Affirmed.
      <S=oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: McMEANS, J.

text:
    GRAND LODGE, COLORED KNIGHTS OF PYTHIAS, et al. v. HORACE.
    (No. 7258.)
    (Court of Civil Appeals of Texas. Galveston.
    Dec. 12, 1916.
    Rehearing Denied Jan. 25, 1917.)
    1. Appeal and Error <§=>927(7) — Review —■ Findings — Assumption as to Evidence.
    In suit on an endowment policy issued by a fraternal order, where the court did not submit, and was not requested by either party to submit, the issue of whether the insured had ever been suspended from his lodge, and the question propounded the jury assumed that he had been suspended, and plaintiff does not, by any cross-assignment of error, complain of such action of the court, the Court of Appeals will assume that the undisputed evidence justified the court in taking such question from the jury and resolving it in favor of defendant as matter of law.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3748; Dec. Dig. <§=> 927(7).]
    2. Insurance <©=>791(1) — Fraternal Insurance — Amount Recoverable.
    Where an endowment policy issued by a fraternal order provided for a payment oí $300 should death occur during the first 12 months of membership, based on the date of the policy, $400 should it occur after the first 24 months, and $500 should it occur after the first 36 months, and provided that if the holder of the policy should be suspended and reinstated, he should be classed as a new member, the beneficiary was entitled to recover, on the death of insured, who was suspended, reinstated, and died within 12 months thereafter, only $300.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1961, 1962; Dec. Dig. <®=»791(1).J
    Appeal from Austin County Court; C. G. Krueger, Judge.
    Suit by Alice Horace against the Grand Lodge, Colored Knights of Pythias, and others. From a judgment for plaintiff, defendants appeal.
    Judgment reformed and affirmed.
    L. D. Brown, of La Grange, for appellants. W. I. Hill and C. C. Glenn, both of Sealy, for appellee.
   McMEANS, J.

Alice Horace brought this suit against appellants to recover $500 upon an endowment policy of insurance issued by the appellants upon the life of her husband, O. H. Horace, in which she was named as beneficiary. A trial was had before a jury, and upon the return of their verdict, which was in the form of answers to special issues, a judgment was rendered in' favor of plaintiff for the full amount sued for, from which the defendants have appealed.

The policy sued on provides that:

“Knight O. H. Horace, a member of Good Hope Lodge No. 192, located at Sealy, Texas, is, while in good standing as a member of the fraternity, entitled to participate in its beneficiary fund to the amount of three hundred dollars should his death occur during the first twelve months of his membership, based upon the date of the policy; four hundred dollars should his death occur after the first twenty-four months of his membership, based upon the date of the policy; five hundred dollars should his death occur after the first thirty-six months of his membership, based upon the date of the policy.”

There was this further provision in the policy:

“(6) Should the holder of this certificate become unfinaneial or suspended for any cause from the order, and is afterwards reinstated into the order, he shall be classed as a new member; and this association shall be liable for such amounts on the conditions provided for members on the face of the policy based upon the date of reinstatement.”

The policy was issued in 1909, and the insured was killed on July 28, 1913.

One of the issues tendered by defendants in their pleadings was that O. H. Horace had been suspended by tbe lodge on February 19, 1913, and that at tbe time of bis death be was not in good standing in tbe order. To tbis tbe plaintiff replied that if O. H. Horace was ever suspended be was duly reinstated and was in good standing at tbe time of bis death. Tbe issue whether tbe insured bad been suspended was not submitted to the jury, but tbe court submitted tbe issue of his reinstatement in tbe following language:

“(1) State whether you believe from the evidence that Good Hope Lodge 192, Colored Knights of Pythias, acquiesced in or consented to the acts of the Chancellor Commander of the aforesaid lodge in reinstating Oliver Horace after he had been suspended.”

Tbis question was answered by tbe jury in tbe affirmative.

Tbe court did not submit, nor was it requested by either party to submit, tbe issue of whether tbe insured bad ever been suspended from tbe lodge. The question propounded assumed that be bad been suspended, and as tbe appellee does not, by' any cross-assignment of error, complain of tbis action of tbe court, it will be regarded that tbe undisputed evidence justified tbe court in taking that question from tbe jury and resolving tbe same in favor of defendant as a matter of law. The court having, then, determined that tbe insured bad been suspended, and tbe jury having in effect found that be bad been reinstated, was tbe plaintiff entitled to a judgment for $500? We think tbis question should be answered in tbe negative.

Tbe evidence justifies the conclusion that the insured was suspended on February 19, 1913, that be was reinstated April 2, 1913, and that be died within 12 months thereafter, to wit, on July 28, 1913; and, further, that after his reinstatement be paid or tendered all dues and assessments necessary to keep tbe policy in force. In these circumstances tbe insured at tbe time of bis death, in virtue of tbe provisions of tbe policy with reference to the amount for which he was insured, above quoted, should have been classed as a new member, and tbe order was liable to bis beneficiary for only such an amount as would have been payable in case of a member dying within tbe first 12 months after tbe date of bis policy. We think, therefore, that tbe judgment of tbe trial court should have been for $300 instead of $500, and said judgment is here reformed so as to award a recovery for appellee in tbe sum of $300.

All the assignments of error have been carefully examined by us, but with tbe exception of tbe one complaining of tbe amount of tbe award are deemed to be without merit, and are overruled.

Tbe judgment of tbe court below is accordingly reformed, and, as reformed, is affirmed.

Reformed and affirmed.
      <®s>For other cases see same topic and KEY-NXJMBBR in all Key-Numbered Digests and Indexes


author: HARPER, C. J.

text:
    WITCHER v. ADAMS.
    (No. 648.)
    (Court of Civil Appeals of Texas. El Paso.
    Jan. 11, 1917.)
    1. Appeal and Error <§=>742(1) — Review-Compliance with Rule.
    Where an assignment of error was not a proposition in itself, and was not followed by a proposition or statement, under rule 29 (142 S. W. xii), it will not be considered upon appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. <§=>742(1).]
    2. Brokers <§=>88(2) — Action por Compensation — Revocation op Authority — Instructed Verdict.
    In an action for commissions upon sale of land listed with plaintiff by defendant, but sold by the latter, where the uncontradicted evidence showed the agency to have been terminated in good faith long prior to the sale, the defendant should have had an instructed verdict.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. § 121; Dec. Dig. <®=>88(2).]
    3. Brokers <§=>86(1) — Action por Compensation-Evidence.
    In an action to recover commissions for sale of land, held, that evidence did not sustain plaintiff’s allegation that defendant agreed to pay commission if latter sold to a customer found by plaintiff.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 117, 118; Dec. Dig. <§=>86(1).]
    4. Brokers <§=>44 — Revocation op Authority.
    A defendant, having listed property for sale with plaintiff for no particular period, could revoke the agency and sell tbe land himself, without incurring liability, provided he acted in good faith, and not to escape payment of commissions.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. § 45; Dec. Dig. <§=>44.]
    5. Brokers <§=>86(2) — Revocation op Authority-Good Faith.
    In an action for commissions for sale of land listed with plaintiff by defendant, held, that evidence did not show bad faith in defendant’s revocation of the agency.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 117, 119; Dec. Dig. <§=>86(2).]
    6. Trial <§=>252(161 — Action for Compensation — Instructions—Quantum Meruit.
    In an action to recover commissions for sale of land, where there was no evidence of the reasonable value of the agent’s services, the trial court was not required to submit the issue of quantum meruit.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 606; Dec. Dig. <§=>262(16).]
    Appeal from District Court, Midland County; S. J. Isaacks, Judge.
    Suit by G. W. Adams against J. E. Witcher. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    Caldwell & Beaverton, of Midland, for appellant. Gibbs & Anderson, of Midland, and E. M. Whitaker, of El Paso, for appellee.
   HARPER, C. J.

G. W. Adams brought this suit against appellant, J. E. Witcher, to recover 5 per cent, of $20,280 upon a verbal contract for services rendered appellant in tbe sale of a certain ranch, as a real estate agent, or to recover what bis services were worth.

Plaintiff alleged that about the 1st day of October, 1914, defendant listed his ranch, consisting of several sections of land, with him as a real estate broker for sale at the price of $5.50 per acre, the purchaser to assume the balance due the state of Texas as purchase money of about $1.50 per acre, and that at the same time defendant agreed to pay plaintiff for his services in procuring a purchaser for said lands a commission of 5 per cent, if sold to a purchaser procured by the plaintiff, and that, pursuant to said contract, he secured one Hutt as a purchaser and induced him to purchase the lands at the price of $20,280 and the assumption of the balance due the state; second, that if he is mistaken as to his right to recover 5 per cent, commission, then in the alternative that defendant in October, 1914, listed the property with him as a real estate broker for sale, that pursuant to said listing, plaintiff procured a purchaser and brought him and defendant together as buyer and seller, and was the efficient procuring cause of the sale above mentioned, and that he was entitled to the reasonable value thereof.

Defendant answered by general exception, general denial, and for special answer pleaded that, if plaintiff was ever employed, it was not for a definite time, that it was terminated in good faith long prior to the sale and acquiesced in by plaintiff, and that the sale, as finally made, was not due to the efforts of the plaintiff, therefore defendant is not liable, etc.

Tried with a jury, and resulted in a verdict and judgment for plaintiff in sum of $1,014, from which this appeal is perfected.

Assignment designated in the brief as “first” is not a proposition itself, and is not followed by a proposition nor statement; therefore canlnot be considered. Rule 29 (142 S. W. xii). This rule also requires “the assignments as presented in the brief to be numbered from first to last in their consecutive order,” and this provision has not been observed by appellant in the preparation of his brief.

Since we have concluded that the plaintiff’s proof does not sustain the allegations in his petition essential to a recovery, the rule in this respect cannot be enforced.

The fifth:

“That the verdict of the jury and the judgment of the court is contrary to the law and the evidence in this cause, because the uncontro-verted evidence shows that the agency of the plaintiff herein was terminated in good faith long prior to the date of the sale of said property, and that the defendant, Witcher, never renewed the negotiations in any manner with the purchaser, J. E. Hutt, but that the purchaser, J. E. Hutt, of his own motion, began the negotiations with the defendant, Witcher, which afterward resulted in the sale of said property, and because there is no testimony in the record showing bad faith upon the part of the defendant herein.”

The propositions were: (a) An owner employing a broker for no specified term may in good faith terminate the agency without becoming liable for commissions; (b) the uneontradieted evidence ¡showing that the agency was terminated in good faith long prior to the sale, defendant should have had an instructed verdict.

Findings of Facts.

The defendant employed plaintiff as his agent and agreed in the event of a sale to pay 5 per cent, commissions on the amount received for the lands.

That defendant fixed a definite price for which the lands were to be sold.

The plaintiff found the purchaser and began negotiations for the sale.

That afterwards, before sale and before tbe proposed purchaser agreed to the price fixed by the defendant, the agency was revoked; that approximately four months after the agency was revoked the proposed purchaser renewed the negotiations with defendant to purchase the land, and without plaintiff doing anything further towards affecting a sale, and the purchase or sale was consummated for about $160 less than the agent was authorized to sell for. The defendant fixed a price of $9,000, and the plaintiff's purchaser at no time prior to the revocation of agency offered more than $8,000. There was no specified time agreed upon between the parties within which the agent should effect a sale. There is no evidence in the record to sustain plaintiff’s allegation that defendant agreed in any event to pay the commission if he sold to the customer found by plaintiff.

The appellee could revoke the agency under these facts without incurring liability provided he acted in good faith, and not to escape payment of the commissions earned. Neal v. Lehman, 11 Tex. Civ. App. 461, 34 S. W. 153; Martin v. Jeffries, 172 S. W. 148.

We think there is no evidence in this record which tends to prove that appellant acted in bad faith in revoking the agency. There is no merit in the propositions urged under the third and fourth assignments.

The appellee urges as cross-assignment that the court should have given his charge requested, submitting the issue of quantum meruit. The proposition is without merit, because, to require the trial court to submit tbe issue made by tbe pleadings, there must have been evidence of the reasonable value of the agent’s services, and none is shown in the statement of facts. Martin v. Jeffries, supra.

Ifor tlie reason that the evidence is not sufficient to support the judgment entered, the cause must be reversed and remanded for a new trial.
      <§=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MORROW, J.

text:
    GUNTER v. STATE.
    (No. 4333.)
    (Court of Criminal Appeals of Texas.
    Jan. 17, 1917.)
    1. Bioamt <&wkey;4 — Indictment—Naming Wife.
    In an indictment for bigamy, it is essential that the name of the lawful wife be given.
    [Ed. Note. — Eor other cases, see Bigamy, Cent. Dig. §§ 19-29; Dec. Dig. <&wkey;4.]
    2. Criminal Law <&wkey;1170(2) — Appeal — Habmless Error — Exclusion oe Testimony.
    The exclusion of testimony which tends to prove a fact already proven, or which is conceded to exist, is not reversible error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3146; Dec. Dig. &wkey;1170(2).]
    3. Criminal Law <&wkey;1170(l) — Appeal — Harmless Error — Exclusion op Testimony.
    The exclusion of testimony which could not affect the result is not reversible error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3145, 3149-3152; Dee. Dig, &wkey;1170(l).]
    4. Criminal Law <&wkey;1170(2) — Appeal — ELarmless Error — Exclusion op Testimony.
    In a prosecution for bigamy, where there was evidence that defendant’s first wife went by the name of “Shirley Bishop” when he married her, and excluded testimony could have done no more than to show that she also went by the name of Mrs. Shirley Barfield, and so would have been cumulative of defendant’s testimony that she was a Barfield at the time, the exclusion was harmless.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3146; Dec. Dig. &wkey;>1170(2).]
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    M. A. Gunter was convicted of bigamy, and he appeals.
    Judgment affirmed.
    Stevens & Stevens, of Houston, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant was convicted of bigamy, and his punishment assessed at three years’ confinement in the penitentiary.

The indictment charged that appellant had married Shirley Bishop, and that she was his lawful and living wife, and that he subsequently married Hattie Devore. Complaint is made of the exclusion of the testimony of F. D. Bishop, to the effect that, at the time his daughter Shirley was married to the appellant she was a widow, and that her name was Mrs. Shirley Barfield. The bill of exceptions shows that the witness F. D. Bishop had testified in the case as a witness for the state, and after the state had closed its testimony he was recalled by the appellant, and gave the testimony above referred to. The bill was accepted, with the following explanation by the trial judge:

“The testimony had already shown without objection that the defendant married the daughter of Mr. Bishop, and that her maiden name was Shirley Bishop, and that she was the same woman married by the defendant under a license to marry Shirley Bishop, and the court was of the opinion that it was proper to allege her maiden name.”

In an indictment for bigamy it is essential that the name of the lawful wife be given in the indictment. McAfee v. State, 38 Tex. Cr. R. 124, 41 S. W. 627. Article 456, Vernon’s Ann. Code of Crim. Proc., contains the following:

“In alleging the name of the defendant, or of any other person necessary to be stated in the indictment, it shall be sufficient to state one or more of the initials of the Christian name and the surname. When a person is known by two or more names, it shall be sufficient to state either name.”

It is established that the exclusion of testimony which tends to prove a fact already proven, or which is conceded to exist, is not - reversible error. Michie’s Crim. Dig. vol. 1, p. 326, and cases cited. And the exclusion of testimony which could not affect the result is not reversible error. Michie’s Crim. Dig. vol. 1, p. 334.

On the trial of the case F. D. Bishop testified that the appellant had married his daughter Shirley Bishop on the 11th day of July, 1904. The marriage license, showing that M. A. Gunter and Miss Shirley Bishop were married on July 11, 1904, in Polls county, Tex., was introduced in evidence by the state. The appellant testified:

“I married Miss Shirley Bishop under the name of Gunter. She was a Barfield at the time. When I married the first time, Miss Bishop was a widow, so she said.”

He urged as his defense that at the time he married Mrs. Devore he believed that his wife Shirley was dead. He testified:

“When I heard she was dead I wrote to May Barfield, who lived at Saratoga at the time, who is supposed to be her sister. Sam Barfield, the husband of May, lived at Sour Lake.”

The above testimony was all received without objection by the appellant, and after it was all given, he recalled F. D. Bishop, and he offered to testify that his daughter Shirley was a widow named Mrs. Shirley Bar-field at the time of the marriage to appellant, and the court excluded it.

In the case of Morville v. State, 63 Tex. Cr. R. 555, 141 S. W. 102, in an opinion by Judge Davidson, it was stated that there was a prosecution for bigamy, the indictment charging that the appellant Morville had previously married Theresa Morville, and, while she was living and his lawful wife, had married another woman. Testimony was given that witnesses were present at the marriage of appellant with Theresa Deignon. Objection was urged to this testimony on the ground that defendant was not charged with having married Theresa Deignon, but with having married Theresa Morville, and because there was no charge in the indictment the testimony would support. The court overruled this objection, and this court sustained the ruling in the following Ian-guage:

“The indictment charged that on the 17th of July, appellant married Jessie Osteen in Dallas eounty, and that at that time he had another living wife, to wit, Theresa Morville, and that at that time he was lawfully married to Theresa Morville. This does not charge that he married Theresa Morville under the name of Theresa Morville, but it does charge at the time he married Jessie Osteen, his former wife, Theresa Morville, was then living.”

The indictment in this case is not in exactly the same language, but reads as follows:

“On the 9th day of March, A. D. 1914, in said county and state, was then and there a person who had theretofore married Shirley Bishop, who was then and there his lawful wife and was then living, and, while so married, and while she was alive, he, the said M. A. Gunter, did, on the date first aforeéaid, in said county and state, marry another woman, to wit, Hattie Devore.”

In the. case of Nickelson v. State, 53 Tex. Cr. R. 632, 111 S. W. 414, this court, in an opinion by Judge Ramsey, passed on a similar question, wherein it was alleged the appellant had married Ida Ammacher while he had another living wife. The marriage license introduced showed that appellant had married “Eda” Ammacher. The objection of variance was raised at the time and overruled, and this court sustained that action of the trial court.

In the case of Stokes v. State, 46 Tex. Cr. R. 357, 81 S. W. 1213, an assault case, the name of the injured party was given in the indictment as Mrs. G. W. Stokes. There was evidence that her name was Eliza Cornelia Stokes. There was also evidence that she sometimes went by her husband’s name, Mrs. G. W. Stokes.

The appellant in this case, in addition to excepting to the exclusion of the testimony of E. D. Bishop, mentioned above, excepted to the refusal of the court to exclude the testimony, theretofore introduced without objection, that the appellant had married Shirley Bishop, and here insists that there is no evidence that the woman he married went both by the name of Shirley Bishop and Shirley Barfield. With reference to the proposition that there was no evidence that the woman he married was known by both names, we are constrained to believe that the record fails to bear out the appellant. The testimony has been stated briefly above, and from that statement it appears that the first witness sworn, F. D. Bishop, testified that the appellant married his daughter, Shirley Bishop. Appellant testifies that he married Miss Shirley Bishop, and that she was a widow and a Barfield at the time. The marriage license certifies that “the marriage-was between M. A. Gunter and Miss Shirley Bishop.”

These references to the record, in our opinion, show that there was evidence that the woman he married went by the name of Shirley Bishop, and the testimony which was excluded could have done no more than show that the same woman also went by the name of Mrs. Shirley Barfield and would have been cumulative of appellant’s testimony to the enect that she was a .Barfield at the time. The record raises no question as to the identity of the woman he married.

Our conclusion is that there is no reversible error shown. The judgment of the lower court is therefore affirmed.
      ®=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes