author: REESE, J.

text:
    MITCHELL et al. v. ROBINSON et al.

    Court of Civil Appeals of Texas. Galveston.
    Nov. 13, 1913.
    Rehearing Denied Dec. 24, 1913.)
    1. Appeal and Errob' (§ 742) — Assignments of Error — Statements.
    Where assignments of error, complaining of the overruling of a special demurrer to that part of the answer which set up a judgment in bar, were not followed by propositions but were stated as propositions in themselves, and the statement merely referred to a bill of exceptions on a certain page of the record, and the part of the answer demurred to was not set out further than the statement that “the plea nowhere sets out any acts as a defense,” such assignments, being violative of rules 30 and 31 of the Courts of Civil Appeals (142 S. W. xiii), prescribing the essentials of the brief, could not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    2. Appeal and Error (§ 742) — Assignments of Error — Propositions and Statements— Ruling on Demurrer.
    An assignment of error complaining of the overruling of a general demurrer to the answer, and stated as a proposition, and not supported by any statement other than a mere reference to a page of the bill of exceptions, could not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    3. Appeal and Error (§ 742) — Assignments of Error — Sufficiency.
    An assignment of error complaining of a refusal to quash a writ of sequestration and of a requirement to replevy, stated as a proposition and not followed by any further proposition as required by rule 30 of the Courts of Civil Appeals (142 S. W.‘ xiii), and not supported by any statement other than a reference to a page of the bill of exceptions and a statement that “this bill of exceptions sustains the facts stated,” could not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    4. Sequestration (§ 17) — Requirement to Replevy — Trespass to Try Title.
    Where a writ of sequestration was sued out on a cross-action setting up title to the entire tract and praying judgment therefor under tlio ordinary allegations of title in defendants and entry and ouster by plaintiffs, and to this cross-action plaintiffs pleaded not guilty, and the writ was levied on the entire tract, a ruling refusing to quash the writ and requiring plaintiffs to replevy the entire tract was not error, though they had sued for only one-half interest.
    [Ed. Note. — For other cases, see Sequestration, Cent. Dig. §§ 35-37; Dec. Dig. § 17.]
    5. Judgment (§ 693) — Matters Concluded— Husband and- Wife.
    A judgment, in an action of trespass to try title to which the husband was a party, was conclusive on the wife as to their community property, though she was not a party thereto, where the wife had no defense growing out of or resting upon the fact that the property constituted their homestead.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 1216; Dec. Dig. § 693.]
    6. Appeal and Error (§ 742) — Assignments of Error — Propositions.
    Several assignments of error followed by a single proposition that the court erred in refusing to submit a certain issue, and supported by no statement other than a reference to a certain page of the record for the bill of exceptions, could not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    7. Sequestration (§ 16) — Property Replev-ied — Judgment for Rent.
    The court may properly adjudicate the question of rent of property or injury thereto after it has been sequestrated and replevied; the condition of the replevy bond in such case being, not for the return of the property, or its value, as in case of personalty, but that the party will not injure the property, and that he will pay the value of rents of same.
    [Ed. Note. — For other cases, see Sequestration, Cent. Dig. §§ 33, 34; Dec. Dig. § 16.]
    8. Appeal and Error (§ 742) — Assignments of Error — Exclusion of Evidence.
    An assignment of error complaining that the undisputed facts in the case proven “and offered to be proven” showed certain matters could not be considered where the statement did not attempt to set out or refer to any evidence to establish such matters.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dee. Dig. § 742.]
    9. Appeal and Error (§ 722) — Assignments of Error — Abstract Propositions.
    Mere statements of abstract propositions of law cannot be treated as assignments of error.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2990-2996; Dee. Dig. § 722.]
    10. Sequestration (§ 20) — Property Re-plevied — Liability for Rents and Damages.
    Where a wife, though not a party to a proceeding, joined with her husband in replevying property which had been sequestrated, and executed with him a joint bond claiming the property as her separate estate, she became bound for rents and damages to it while in their possession under the bond.
    [Ed. Note. — For other cases, see Sequestration, Cent. Dig. §§ 42-49; Dec. Dig. § 20.]
    11. Appeal and Error (§ 742) — Assignment of Error — Propositions and Statements.
    An assignment of error complaining of the rendition of judgment for plaintiffs on the whole testimony in the case “and that wrongfully excluded,” when stated as a proposition and the only supporting statement was “same as under prior propositions,” could not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    12. Trial (§ 112) — Argument of Counsel-Limiting Time.
    Where the only issues presented to the jury were as to the rents and damages to sequestrated real property after execution of a replevin bond, and there were no questions of law to be argued to the jury, it was not an abuse of discretion for the court to -limit the argument of counsel on each side to 30 minutes.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 273, 274; Dee. Dig. § 112.]
    13. Trial (§ 112) — Argument of Counsel— . Limiting Tiiub.
    Press of court business will not authorize refusal of reasonable time to counsel for full presentation of issues of fact to the jury.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 273, 274; Dec. Dig. § 112.]
    14. Appeal and Error (§ 766) — Defective Brief — Cure by Printed Argument.
    Where a brief did not comply with the rules of briefing (rules 30 and 31 of the Courts of Civil Appeals [142 S. W. xiii]), but was defee-tive in respect to its propositions and statements, the defects could not be cured by the printed argument.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig'. §§ 3101, 3126; Dec. Dig. § 766.]
    15. Appeal and Error (§ 756*) — Assignments op -Error — Rules oe Briefing — Construction of Statute.
    Acts 33d Leg. c. 136, amending Rev. Civ. St. 1911, art. 1612, which provides that an assignment of error shall be sufficient which directs the court’s attention to the error complained of, does not detract from the force of the rules of briefing.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3091; Dec. Dig. § 756.]
    Appeal from District Court, Harris County; Wm. Masterson, Judge.
    Action by Pearl M. Mitchell and her husband against J. F. Robinson and others. From a judgment for defendants, plaintiffs appeal.
    Affirmed.
    Dowell & Dowell, of Houston, for appel-' lants. Sam, Bradley & Fogle, of Houston, for appellees.

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

       For opinion on motion for rehearing, see 132 S. W. 1172.

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

   REESE, J.

In most of its features, with the exception of questions growing out of the sequestration of the property involved by defendant Robinson and the replevy thereof by plaintiffs, and the matters of rents and damages claimed by defendant and claim for improvements made by plaintiffs, this case is identical in its facts with the case of Childress et al. v. Robinson et al., 161 S. W. 78, decided by this court a few days ago. It relates to the same tract of land. In this action Pearl M. Mitchell and her husband, T. B. Mitchell, sued J. F. Robinson in trespass to try title for an undivided three-fourths interest in the 53½ acres involved in the suit of Mitchell v. Robinson et al. (No. 43,570) 136 S. W. 501, in the district court of Harris county, and for which said Robinson had judgment against T. B. Mitchell, one of the plaintiffs herein, and the other defendants in that suit. This judgment was dated February 7, 1910. On July 1, 1911, the said J. F. Robinson sued out a writ of possession upon the aforesaid judgment against T. B. Mitchell and the other defendants, which was placed in the hands of A. R. Anderson, sheriff of Harris county. Thereupon the said Pearl M. Mitchell and her husband, the said T. B. Mitchell, instituted this action against J. F. Robinson, seeking, in form of an action of trespass to try title, to recover the undivided three-fourths of the said 53⅛ acres of land, joining the said Anderson, as sheriff, and seeking further to enjoin both defendants from attempting to enforce said writ of possession. The grounds for such relief urged in the petition are, as in the Childress Case, that the property is, and was at the date of the institution of the suit No. 43,570 and of the judgment herein, the homestead of the plaintiffs then and now husband and wife, and was also the separate estate of the said Pearl M. Mitchell, and that she was not a party to said suit and said judgment is not binding upon her. It was averred that plaintiffs were living upon said property and occupying and claiming the same as their homestead at the time of the institution of the said suit No. 43,570, and that the same was then and is now Mrs. Mitchell’s separate property. Defendants answered by general demurrer and special exceptions which need not be set out, and also pleaded general denial and not guilty and pleaded in bar of the action the judgment in cause No. 43,570 aforesaid. Defendant Robinson also by way of cross-action set up his title under said judgment, and the possession and adverse claim by plaintiffs which were averred to be a cloud upon his title, and prayed for judgment establishing his title, etc. Under appropriate averments he sued out a writ of sequestration, under which the property was taken into possession by the officer, whereupon the same was replevied by plaintiffs, who executed a bond, in the form prescribed by the statute, with the General Bonding & Casualty Company as security. Replying to the answer and cross-bill of defendants by supplemental petition, plaintiffs-demurred generally to the answer and specially excepted to the sufficiency of the plea of res adjudicata. Various objections were made to the writ of sequestration. Plaintiffs attempt by bill of exceptions to show that exceptions to the answer were presented and acted upon, but there is no judgment or order of the court showing such action.

In their petition plaintiffs also pleaded improvements in good faith made by them on the land prior to the institution of the suit No. 43,570; the several items thereof being set out, of the aggregate value of $750. In their supplemental petition plaintiffs state the value of said improvements as $670, and that they were placed upon the land when they first purchased the same in 1905. In the original answer and cross-action defendant Robinson, under appropriate allegations,, sets up claim for rents and damages. The case was tried with a jury. The court did. not submit the issue of title, but only those of rents and damages as claimed by defendant subsequent to the replevy of the property,, instructing the jury that whatever title or interest plaintiffs have or had in the land was divested out of them and vested in defendant Robinson by the judgment in cause No. 43,-570. Upon the special findings of the jury as to the rents and damages in cutting trees- and removal of dirt subsequent to the execution of the replevin bond, the court rendered judgment in favor of plaintiff Robinson for the land and against both of the plaintiffs and the General Bonding & Casualty Company, surety on the replevy bond, for the-sum found by the jury as such rents and damages. Plaintiffs filed a motion for a new trial, which, was overruled, and they prosecute this appeal.

The only evidence of title introduced hy appellants was the original grant to John Austin of two leagues of land, of which the tract in controversy is a part, dated 182% and a deed from D. A. Reynolds to G. D. Childress and T. B. Mitchell for the land in controversy, dated November 19, 1909. It was shown that appellants were married in 1902 and that they were residing on the land in controversy at the time of the institution of the suits of appellee Robinson against Mitchell, Childress, and others. The judgment in cause No. 43,570, Mitchell v. Robinson et al., was introduced in evidence, which shows that on January 7, 1910, J. F. Robinson recovered a judgment in the district court of Harris county against T. B. Mitchell, D. A. Reynolds, G. D. Childress, L. J. O’Con-nor, J. E. Parker, and J. A. Parker for the title and possession of the tract of land in controversy, less a small triangular tract of about one acre, the title of which was established in Mitchell, Childress, and Reynolds. Robinson also recovered judgment against T. B. Mitchell for $784 for rents and damages. The defendants appealed from said judgment, and on appeal the judgment was affirmed by this court. 136 S. W. 501. Much evidence was introduced on the questions of rents and damages from and after September 11, 1911, being the date on which appellants replevied the property. It is sufficient to say that the evidence is sufficient on these points to support the findings of the jury, in their answer to the questions propounded to them by the court as special issues. The papers in the sequestration proceeding were introduced in evidence, which showed writ of sequestration issued on August 22, 1911, and replevy' bond executed -day of-, 1911, by T. B. Mitchell and Pearl M. Mitchell as principals, and the General Bonding & Casualty Company as surety, in the sum of $5,000, conditioned that “Pearl M. Mitchell and T. B. Mitchell will not injure said property, and that they will pay the value of the rents of the same in case they shall he condemned to do so.” The foregoing are all of the material facts shown by the evidence, as set out in the statement of facts.

What is said in the case of Callie Chil-dress v. J. R. Robinson, referred to in the beginning of this opinion, with regard to the assignments of error, apply to the brief of appellants in the present case. The same objections to consideration of the assignments are made and insisted on by appellees as were made in the case referred to.

The second and- third assignments of error complain of the ruling of the court in overruling the first special demurrer to that part of the answer of appellees which sets up in bar of this action the judgment in cause No. 43,570. The assignments set out the special exception, but the statement merely refers to a bill of exceptions on page 46 of the record. That part of the answer referred to is not set out, or attempted to be set out, either in form or substance, further than the statement that “the plea nowhere sets out any acts as a defense of plaintiffs’ cause of action.” Neither assignment is followed by a proposition, but both are stated as propositions in themselves. The assignments violate both rules 30 and 31 (142 S. W. xiii) and are not entitled to consideration, especially in view of the objections insisted on by appellees. Autrey v. Linn, 138 S. W. 197; T. & N. O. R. R. Co. v. Powell, 51 Tex. Civ. App. 409, 112 S. W. 697; Colorado Canal Co. v. McFarland & Southwell, 50 Tex. Civ. App. 92, 109 S. W. 435. Cases almost without number might be cited from the Supreme Court and the several Courts of Civil Appeals in support of the proposition stated.

The first assignment of error complains of the action of the court in overruling the general demurrer to the answer of defendants. It is stated as a proposition and is not followed by any further proposition. The only statement is: “See bill of exceptions No. 1, R. P. 43.” The assignment manifestly is not entitled to be considered. If considered it would be overruled, as the answer to which the general demurrer is addressed contains, among other allegations, a general denial and plea of not guilty.

The fourth assignment is subject to the same objections stated to the second and third assignments.

The fifth assignment of error is addressed to the ruling of the court in refusing to quash the writ of sequestration on motion of appellants and in requiring appellants to replevy the whole tract when they had sued for only one-half interest. The assignment is stated as a proposition and is not followed by any further proposition. It is not a proposition as referred to in rule 30. The statement is in full as follows: “See bill of exceptions No. 5, R. P. 52. This bill of exceptions sustains the facts stated.” The bill of exceptions contains ten grounds upon which it is urged that the writ of sequestration should be quashed. The assignment cannot be considered. In this connection we will state that the writ of sequestration was sued out on appellees’ cross-action setting up title to the entire tract and praying judgment therefor, under the ordinary allegations of title in appellee and entry and ouster by appellants. To this cross-aqtion, after numerous general and special exceptions, appellants pleaded not guilty. The writ was levied upon the entire tract, and appellants replev-ied the entire tract. The assignment would be, as to the main objection attempted to be made to the writ, without merit.

The sixth assignment is stated as a proposition and is not followed by any fur-tiler proposition. It is not such a proposition as is required by rule SO. The statement is not sufficient. The assignment, so far as we can gather, complains of the charge in that it fails to submit to the jury the issue resting upon the plea of res adjudicata. The undisputed evidence showed that the judgment in cause No. 43,570 was binding upon both defendants and divested out of both of them and vested in the appellee Robinson the title to the land. The deed introduced in evidence from Reynolds to T. B. Blitehell, under the undisputed facts in the record, placed the title in Mitchell as community property of himself and his wife. The evidence was sufficient to show that it was their community homestead at the dates of the institution of the suit and the recovery of the judgment in cause No. 43,570. T. B. Blitchellj was regularly made a party to that suit and appeared and answered. Mrs. Pearl M. Mitchell was not made a party. Under these undisputed facts it followed, as a legal result, that the judgment bound both husband and wife. It is not pretended that the wife had any defense to the action growing out of or resting upon the fact that it was their homestead. See opinion in Oallie Childress et al. v. J. F. Robinson et al., referred to supra; Jergens v. Schiele, 61 Tex. 255; City of San Antonio v. Berry, 92 Tex. 327, 48 S. W. 496; Collins v. Ferguson, 22 Tex. Civ. App. 552, 56 S. W. 225; Brown v. Humphrey, 43 Tex. Civ. App. 23, 95 S. W. 23; Breath v. Flowers, 43 Tex. Civ. App. 516, 95 S. W. 26; Central Coal & Coke Co. v. Henry, 47 S. W. 281; Speer on Law of Married Women, § 295. This being the legal effect of the undisputed evidence, there was no issue of fact to be submitted to the jury, so far as this point is concerned, and the court acted correctly in not submitting such issue but instead declaring the law upon the undisputed facts. So that, if the assignment had been properly presented in the brief, it could not be sustained.

The seventh assignment of error complains of the failure of the court “to submit to the jury the question of the value of improvements made on the land since the institution of this suit or for any improvements, although the undisputed evidence showed that the plaintiff had, since the institution of this suit and prior thereto, made improvements to the value of $670, as appears by bill of exceptions No. 6.” This assignment is stated in connection with the eighth assignment, which complains of the exclusion of the evidence of T. B. Mitchell as to the character and value of the improvements made on this land prior to this suit; the same not being an issue in cause No. 43,570, as appears by bill of exceptions No. 6a. These assignments are followed by the single proposition that “The court erred in refusing to submit to the jury the plea of improvements in good faith made by plaintiff on the land and in ruling it out as an issue in the case.” We coxjy the statement under both assignments and the proposition: “See charge of the court, ante. See bill of exceptions No. 6, R. P. 60. See bill of exceptions No. 6a, R. P.” There is no bill of exceptions 6a. The bill of exceptions referred to in the seventh assignment has nothing to do with the matter stated in the assignment but is entirely foreign to it. Neither of the assignments nor the proposition can properly be considered.

Under the ninth, tenth, and eighteenth assignments of error appellants attempt to present the general proposition that, when real property is sequestrated and replevied, the court could not properly adjudicate the question of rent of the property or injury thereto after it had been so replevied, but that, after the property is replevied, the suit ceases to be a suit for the land and becomes an action on the bond for the value of the land, and further that, in case of a judgment against the party replevying the land, he can satisfy the same by paying the value of the land, or by returning it to the sheriff and paying damages for injury thereto, to be assessed by the sheriff. In other words, appellants’ contention is that the provisions of the statute with regard to the sequestration and replevy of personal property apply also to real property in such case. Article 4875 (Sayles Civil Statutes), when read in connection with article 4874, affords a sufficient answer to this contention, if any answer were needed. The conditions of the replevy bonds in the two eases are entirely different. In case of levy of sequestration on land, the condition is not for a return of the property or payment of its value, etc., but that the party “will not injure the property, and that he will pay the value of the rents of the same, in case he shall be condemned to do so.” There is no merit in the assignments. We have considered these assignments, although the statements under the propositions are not sufficient to require such consideration, because the assignments and propositions themselves disclose sufficiently the question attempted to be presented.

The eleventh assignment attempts to present the proposition that the judgment in the case No. 43,570 is not binding upon Mrs. Blitehell because she was not a party to the suit and the property was her homestead. The statement does not attempt to set out any of the evidence in the record to support the claim that the property was the homestead of Blitehell and his wife at the time of the institution of the suit, and the rendition of the judgment, but this, as we gather, seems to be conceded. The assignment has no merit. See authorites cited ante.

The twelfth assignment presents the same contention on the ground that “the undisputed facts in the case proven and offered to be proven” showed that the property was the separate estate of Mrs. Mitchell at the time of the institution of said suit and the rendition of the judgment. The statement does not attempt to set out or to refer to any evidence to establish the fact assumed as a basis of the assignment. The assignment cannot be considered. On its face it is not sound, as this court cannot consider facts “offered to be proven” merely, but which were excluded, except .in passing upon proper bills of exceptions to its exclusion. Such evidence, even when erroneously excluded, cannot properly afford a basis for a judgment on the merits. What we have said applies also to the thirteenth assignment.

The fourteenth and fifteenth assignments are not assignments of error to any action of the court but mere statements of abstract propositions of law and cannot be treated as assignments. Added to this is the vice that they are not followed by any statement.

The proposition embodied in the sixteenth assignment is not sound. Mrs. Mitchell, having joined with her husband in re-plevying the property and executed with him a joint bond, the property being claimed by her as her separate estate, became bound for rents and damages to the property while in their possession under the bond. Wandelohr v. Grayson County Bank, 102 Tex. 20, 108 S. W. 1154, 112 S. W. 1046. The writ of sequestration was issued upon appellee’s cross-action in which he claimed the entire property, to which appellants pleaded not guilty, and they replevied and kept possession under their bond of the entire property.

The twentieth, twenty-first, twenty-second, and twenty-third assignments of error are addressed to the alleged error of the court in excluding certain testimony offered by appellants. Each assignment is stated as a proposition and is not followed by any further proposition. The only statement under either is a reference to a bill of exceptions, giving the page of the record. Neither assignment is properly a proposition under rule 80, nor are the statements sufficient under rule 31. Appellees object to the consideration of the assignments on this ground. Neither of them can be considered. From the bare reading of the assignments, however, we are of the opinion that neither of them has any merit or could be sustained if properly presented.

The twenty-fourth assignment of error complains of the error of the court in not giving judgment for plaintiffs for the land sued for “on the whole testimony in the ease, that which was admitted and that wrongfully excluded.” This is stated as a proposition. The statement is: “Same as under prior propositions, ante.” A second proposition under the assignment is in substance that no personal judgment for money could have been rendered against T. B. Mitchell, followed by the same statement: “Same as under former propositions.” The assignment cannot be considered. But it is unsound on its face. The excluded testimony could not have been considered by the trial court or by this court as the basis of the judgment. The second proposition is not germane to the assignment.

Appellants complain, by the twenty-fifth assignment of error, that the court limited their counsel to 30 minutes in argument to the jury, and that this was an abuse of the court’s discretion and practically a denial of the right of argument. The only issues presented to the jury were as to the rents and damages to the property after the execution of the replevin bond by appellants. There were no questions of law to be argued to the jury. The testimony on the issues of fact is not voluminous. Upon the whole we are not inclined to say that the action of the court in imposing the limit of 30 minutes was such an abuse of the court’s discretion as to require a reversal of the judgment. An examination of the testimony upon these issues of fact submitted to the jury, which we have made in making up our conclusions of fact, shows that there was very little conflict, and very little by way of argument to the jury was really necessary. But the limit imposed comes perilously near being an abuse of the court’s discretion.

Press of business in the court cannot properly be made a ground for refusal to any lawyer of reasonable time and opportunity for a full presentation of the issues of fact to the jury, in his own way. In the case of Cooper v. Bobischung, 155 S. W. 1050, decided by this court in March, 1913, the judgment was reversed partly on this ground, and, if the facts were the same, we would make the same ruling in the present case. We do not do so because upon the facts in the record we are not able to say that the action of the trial court constituted such an abuse of his discretion as to require such a drastic remedy as a reversal of a judgment which appears to us upon the whole record to be a proper one.

The defects pointed out in the brief cannot be cured by the printed argument. The printed argument was filed only three days before the submission of the case, but, even if it had been filed with the brief, it cannot be looked to in determining whether the assignments in the brief comply with the rules for briefing. But, if it could, the printed argument in this case does not remedy the defects pointed out.

The act of the Thirty-Third Legislature (chapter 136, p. 276, art. 1612, B. S.), which provides that an assignment of error “shall be sufficient which directs the attention of the court to the error complained' of,” does not help appellants. This act was never intended to abrogate the rules referred to. Conn v. Bosamond, 161 S. W. 73; Childress v. Robinson, 161 S. W. 78, both decided by this court at the present term. In justice to appellee, and in view of the plain provisions of the rules referred to and the uniform practice in this and other Courts of Civil Appeals, we do not feel at liberty to take any other course than we have done.

We have studied this record carefully, notwithstanding defects in the brief, and our conclusion is that judgment should be affirmed, and it has been so ordered.

Affirmed.


source: Caselaw Access Project

author: WILLSON, C. J.

license: Public Domain

text:
    KNIGHT v. ARMSTRONG.
    (Court of Civil Appeals of Texas. Texarkana.
    Dec. 18, 1913.
    Rehearing Denied Jan. 8, 1914.)
    1. Mandamus (§ 141) — Jukisdiction—County Court^-Nature of Controversy.
    A suit in the county court for mandamus to compel a justice of the peace rendering judgment for $79.65 to grant an appeal, and to make a transcript of the case to the county court, if treated as a suit invoking the original jurisdiction of the county court, is not within its jurisdiction which is confined to cases where the matter in controversy exceeds $200 and does not exceed $1,000.
    [Ed Note. — For other cases, see Mandamus, Cent. Dig. §§ 276-278; Dec. Dig. § 141.]
    2. Appeal and Error (§ 20) — Jurisdiction of Court of Civil Appeals.
    The Court of Civil Appeals does not acquire jurisdiction by an appeal from the county court, where that court had no jurisdiction.
    [Ed. Note. — For other cases, see Appeal and Error, Cent Dig. §§ 81-87; Dec. Dig. § 20.]
    3. Appeal and Error (§ 45) — Jurisdiction —Court of Civil Appeals.
    A suit in the county court for mandamus to compel a justice of the peace rendering judgment for $79.65 to allow an appeal and to make a transcript to the county court if treated, as it must be, as invoking the appellate jurisdiction of the county court, is within Rev. Civ. St. 1911, art. 1589, providing for appeals from the county court only when the amount in controversy or the judgment rendered exceeds $100, and an appeal does not lie to the Court of Civil Appeals from a judgment of the county court denying relief.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 152-155, 157,158, 172-176, 178-184, 186-197; Dec. Dig. § 45.]
    Appeal from Titus County Court; Sam Porter, Judge.
    Action by S. F. Knight against 'D. H. Armstrong. From a judgment denying relief, plaintiff appeals.
    Dismissed.
    Ralston & Ralston and Ward & Ward, all of Mt. Pleasant, for appellant. I. N. Wil- . liams and T. C. Hutchings, both of Mt. Pleasant, for appellee.

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

   WILLSON, C. J.

One Edmonds, claiming appellant was indebted to him in the sum of $79.65, sued appellant in a justice court and recovered judgment against him for that sum. Plaving given notice of an appeal to the county court, appellant, within the time allowed by law, filed with appellee, the justice of the peace who rendered the judgment, his affidavit, in lieu of an appeal bond, that he was unable to pay the costs of an appeal or to give security therefor. The truth of this affidavit having been contested before appellee as such justice, he, after hearing the testimony offered, refuse.d to grant the appeal, and refused to make and send to the county court a transcript from his docket of the proceedings had before him, together with the original papers in the case. Thereupon appellant petitioned said county court for a writ of mandamus directing appellee to make such a transcript and send same and said original papers to said county court. This appeal is from a judgment of said county court denying appellant such relief.

Because this court is without power to hear and determine it, the appeal must be dismissed. If the suit for the mandamus should be treated as one invoking the original jurisdiction of the county court, clearly that court could not have entertained it, for its original jurisdiction was confined to eases where the matter in controversy exceeded $200 and did not exceed $1,000. De Witt County v. Wisehkemper, 95 Tex. 435, 67 S. W. 882; Arnold v. McNineh, 56 Tex. Civ. App. 555,121 S. W. 904. As, viewed from that standpoint, the county court would have been without power to hear and determine it, this court, of course, by appeal to it, would not acquire jurisdiction. If, as we think it must be, the suit should be treated as one invoking the appellate jurisdiction of the county court, then its determination of it was final so far as this court is concerned, for it has jurisdiction of appeals from that court only “when the judgment, or amount in controversy, or the judgment rendered,” exceeds $100, exclusive of interest and costs. Article 1589, R. S. 1911; 'Mask v. Louisiana & Texas Lumber Co., 145 S. W. 299.

The appeal is dismissed.


text:
    S. H. KRESS & CO. v. LAWRENCE.
    (Court of Civil Appeals of Texas. Texarkana.
    Dec. 11, 1913.
    Rehearing Denied Jan. 8, 1914.)
    1. False Imprisonment (§ 31) — Evidence-Weight and Sufficiency.
    ■ In,an action for false imprisonment against the proprietor of a store, evidence held to support a jury finding that its employés wrongfully assaulted and detained plaintiff as claimed by him.
    [Ed. Note. — For other cases, see False Imprisonment, Cent. Dig. § 108; Dec. Dig. § 31.]
    2. False Imprisonment (§ 13) — Defenses— Probable Cause.
    Under Willson’s Cr. St. 1895 (Code Cr. Proc. 1895) art. 247, providing that a peace officer or other person may, without a warrant, arrest an offender when the offense is committed in his presence or within his view, if the offense is a felony or an offense against the public peace, and Willson’s Cr. St. 1895 (Pen. Code 1895) art. 593, providing that violence does not amount to an assault when committed in preventing an intrusion upon the lawful possession of the property, and article 622 providing, relative to false imprisonment, that it is not an offense to detain a person in the cases mentioned in article 593, as justifying the use of force, but that it must be shown that the detention was necessary to efEeet such object, in an action against the proprietor of a store for arresting and detaining plaintiff, it was not a defense that plaintiff’s conduct was such as to lead a person of ordinary care, observing his eonduct¡ and did lead defendant’s employés, in good faith to believe that he had stolen a pin worth ten cents, on the theory of estoppel, since if he had taken the pin defendant’s em-ployés would have had no lawful right to arrest and detain him, as the theft thereof would not be a felony or offense against the public peace, and defendant, no longer having possession of the pin, could not justify the detention as necessary to interrupt an intrusion upon such possession.
    [Ed. Note. — For other cases, see False Imprisonment, Cent. Dig. §§ 6, 7, 31, 59; Dec. Dig. § 13.]
    3. False Imprisonment (§ 8) — Depenses — Probable Cause.
    Assuming that the fact that plaintiff’s conduct was such as to lead defendant’s employés in good faith to believe he had stolen a pin justified his arrest and detention by such employés on the theory of estoppel, it did not justify them in forcibly compelling him to go to defendant’s office and there submit to a search, where, upon being arrested, he promptly denied the theft and offered to show by turning his pockets inside out that he had not taken the pin, and hence an instruction to find for defendants, if such employés did what the proof showed they did to plaintiff in consequence of the belief so induced, was properly refused.
    [Ed. Note. — For other cases, see False Imprisonment, Cent. Dig. §§ 68-73; Dec. Dig. § 8.]
    4. Trial (§ 252) — Instructions—Conformity to Evidence.
    In an action for false imprisonment against the proprietor of a store, an instruction that, if defendant’s manager saw plaintiff take a stick pin or other article of jewelry and put it in his pocket, then put it back on the counter, again take it up, put it in his pocket, and walk off with it, he had a right to detain plaintiff to recover the pin or to determine what he did with it was properly refused, even if otherwise proper, where the evidence showed conclusively that plaintiff did not in fact walk off with the pin.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. § 252.]
    6. False Imprisonment (§ 40*) — Instructions — Conformity to Pleadings and Evidence.
    In an action for false imprisonment, where the petition alleged that defendant’s manager and another employé in defendant’s store unlawfully arrested him, forced him to go to its office, where they unlawfully searched his person, and he testified that as he was leaving the store the manager and another employé stopped him, demanding to know where he was going with a pin, that he denied that he had the pin, that the manager, with a hand on plaintiff’s shoulder, said, “Let’s go back and see,” that they then went to another floor of the building where he was told to turn his pockets inside out, which he did, that the manager and the other employé walked behind him, and that the other employé held him by the collar and pushed him along, an instruction submitting the question whether defendant’s employés took hold of and examined plaintiff against his will and without his consent was justified by the pleadings and evidence.
    [Ed. Note. — For other cases, see False Imprisonment, Cent. Dig. § 119; Dec. Dig. § 40.]
    6. False Imprisonment (§ 36) — Excessiveness — Personal Injuries.
    In an action for false imprisonment, plaintiff, a boy 12 years old, testified that as he was leaving defendant’s store two of defendant’s employés stopped him, demanding to know where he was going with a pin; that they then pushed him through the store and through a crowd of negroes to the back of the store and up a stairway to the office, where they compelled him to turn his pockets inside- out. He admitted having picked up the pin and looked at it, and defendant’s manager claimed that he saw him put the pin in his pocket, and that plaintiff made no objection to going to the office, and that he turned his pockets out voluntarily. Held, that, under the circumstances of the case, a verdict for $1,000 was excessive and required a reversal, unless plaintiff filed a re-mittitur of $500.
    [Ed. Note. — For other cases, see False Imprisonment, Cent. Dig. §§ 110, 113-115; Dec. Dig. § 36.]
    Appeal from District Court, Bowie County; H. F. O’Neal, Judge.
    Action by Clinton Lawrence, by next friend, against S. H. Kress & Co. Judgment for plaintiff, and defendant appeals.
    Reversed conditionally.
    Glass, Estes, King & Burford, of Tex-arkana, for appellant. Mahaffey & Thomas and P. A. Turner, all of Texarkana, for ap-pellee.

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

   WILLSON, C. J.

This was a suit for damages for false imprisonment, brought by ap-pellee against appellant, in which judgment was rendered in favor of the former against the latter for the sum of $1,000.

Appellant, a corporation, owned and operated a store in the city of Texarkana, where it kept for sale, displayed on open counters, accessible to persons who might wish to examine them, jewelry, toys, music, glassware, and innumerable other articles, ranging in price from 5 to 25 cents. Between 8 and 9 o’clock in the evening of Saturday, October 26, 1912, appellee, a boy 12 years of age, and his sister, a young lady 16 years of age, went to appellant’s said store, where ap-pellee’s sister bought some glass tumblers, which she gave to appellee to carry. She then proceeded to look at sheet music displayed in the rear end of the store, while ap-pellee went towards the front part of the store, stopping at a counter where a lot of cheap jewelry was displayed. Having completed her inspection of the music, appellee’s sister came to where he was and, touching him on the shoulder, told him to “come on, let’s go,” walking on towards the front door. Appellee followed after her and had reached a point near the door when appellant’s manager, Scott, and another of its employés, named James, described as a “floor man,” stopped him. Appellee’s account (testifying as a witness) of what then occurred was as follows: “They (meaning Scott and James) caught me by the collar and back of the neck and said, ‘Where are you going with that pin in your pocket?’ I replied, T haven’t got any pin in my pocket.’ I had bought some candy in the store, a nickel’s worth. I had that candy in my pocket, right-hand pocket of my coat. The man then said, ‘Let’s go back here and see.’ He had me right by the back of my neck and pushed me through the store and through a big crowd of negroes at the back of the store, and he took me up some stair-steps and told me to turn all my pockets wrongside out, and I didn’t say anything. I had some candy in my pocket and X took it out and turned my pockets, and one of them said, ‘Any candy on the shelf that he could have stolen?’ and I said, ‘I never stole any candy;’ and he said: ‘I thought you had a pin in your pocket. You had better be careful how you handle things in this store. We catch many boys stealing.’ Then they told me I could go. That store runs from one block to the other, from the north side of Broad street clear back to the alley, something like 140 feet, and is 50 feet wide, two lots, and I was close, I guess five or six feet, to the west front door when the man caught me in the back of the neck by the collar. 1-Ie pushed me all along from the front of the store to the back of the store, and pushed me right through a big crowd of negroes along up the stairways. Both of them followed me to the back end of the store. They didn’t say anything to me when I was going from the front end of the store to the back end of the store. They didn’t tell me what they were taking me for. After they took me up the stairway they told me to turn all of my pockets wrongside out. I had four pockets in my pants, two side pockets and hip pockets, and I turned all of them wrongside out. I also had a little watch pocket, and I turned that wrongside out. They told me to turn every one of my pockets. I also turned my coat pockets. My coat had one pocket on each side, one side pocket on the outside and one pocket on the inside. I had the candy in the right-hand pocket of my coat. When I turned that the candy came down on the floor, and then I took everything out of the pocket and turned it. I set the glasses down on the floor. I carried the glasses up the stairs with me. When one of them asked me if there was any candy out on the shelf that I could have stolen, I said: ‘I didn’t steal this candy, I bought it.’ After they got through turning my pockets, they said: ‘We see you haven’t got the pin, but I thought I saw you put it in your pocket. You had better be careful how you handle things around here. We catch so many boys stealing.’ And said, ‘You can go now.’ Then I put everything back in my pockets and picked up the glasses and went home.” On his cross-examination ap-pellee testified: “These pins were just laid on the counter, open counter, and I picked up one of these pins and looked at it, and put it back. Q. Did you do that more than once? A. No, sir; I didn’t pick it up but once, just picked it up and looked at it and put it back. No boys were around there that I knew. I asked the young lady waiting on this counter how much the pins were, and. she said ten cents. She did not ask me if X wanted any. Q. Did she turn away? A. No, sir. The store was crowded and I asked this-young lady how much the pins were, and she told me ten cents. That was before I picked up one of them. Then I looked at them and she was still standing there watching me, and I put it back. I didn’t have any idea of taking one, and I was just looking at it. Q. Now is it possible that you looked at that twice, Clinton? A. No, sir; only once. Q. Perfectly sure of it? A. Yes, sir. Q. When the-young lady told you the price of the pin you picked it up and put it back, and then your sister came up and said, ‘Let’s go’? A. Yes, sir. Q. Now your sister left out the west door, and you were following her with the glasses, and you .say two men stopped you? A: Yes, sir. Q. And this was one of them (pointing to Mr. Scott)? A. Yes, sir. Just one of them got me by the collar. Q. Did Mr, Scott catch you by the collar? A. I think it was the other man. Q. Did Mr. Scott put his hands on you? A. Yes, sir; and when he told me to come on he took them oft'. Q. Did only one of them catch you by the collar? A. Yes, sir. Q. Where did the other one put his hands on you? A. Put his hand on my shoulder. Q. Which one-asked you about the pin? A. Mr. Scott. And I told him that I didn’t have any pin,, and he said, ‘Let’s go back and see.’ Q. Now you didn’t object to going back, did you? A. I knew I didn’t have the pin. Q. You preferred to show him that you didn’t have the pin, didn’t you, and you didn’t object, to going back there, did you? A. I didn’t want to go back there. I would rather have emptied my pockets right there and shown everybody that I didn’t have it. I asked them to let me empty my pockets there. I went back with them when they said, ‘Let’s go back and see.’ He caught hold to the collar of my waist and had his fingers on my neck. He didn’t have his hands on my shoulder. The other one had his hand on my shoulder; and Mr. Scott was the one who-did the talking. I am perfectly sure that they caught me by the collar, and I am perfectly sure that they pushed me down the-aisle. Q. Isn’t it a fact that when you were-first stopped Mr. Scott was not there? A. Both of them were there. I am perfectly sure of that. <¾. Now did he keep Ms hands on you until you started up the stairway? A. When we got to the stairway he turned, me loose and told me to turn all of my pockets out. Q. Did both men keep their hands-on you when they were going down the aisle? | A. No, sir. Mr. Scott didn’t; the other man did, and pushed me through the middle of a crowd of negroes. Mr. Scott didn’t have his hands on me when we walked down the aisle. The other man was behind me and just used one hand holding my collar. Q. Now, were you on the east or west of him? A. In front of him; he was right behind me. He had one hand holding me by the collar and the other hand was on my body, and when I got up the stairs he told me to empty my pockets, and I turned them all out. I had some candy in one pocket. After they got through Mr. Scott said, T thought you had a pin in your pocket’ It was Mr. Scott who said I had better be careful around there about the way I handle things. The other man asked Mr. Scott if there was any candy that I could have stolen. Except that Mr. Scott did all the talking.”

The account of appellant’s manager (Scott) of what occurred was as follows: “On this Saturday evening I saw Clinton Lawrence, the boy who testified yesterday. I had never seen him before, nor his parents. My office is in the rear of the floor, on the balcony floor, is reached by a stairway, and overlooks the entire store. I was there in my office talking to Mr. McDonald, advertising manager of the Texarkanian, on businsss, and, as I always do on Saturday evenings. I never stay off of the floor for a very long time. I came down to take a walk around the store, and I saw this boy standing at the jewelry counter. The jewelry on this counter is a separate display, laid open on the counter, and is made up of scarf pins, tie pins, some beauty pins, different lines costing about ten cents. We sold these pins for ten cents. That counter was in the front of the store kinder running lengthwise down the center of the store, or about 20 feet from the front door. We have two front doors there, separately by display windows, and we have a waiting room just inside. Now just immediately opposite this waiting room, a few feet from it, are the glass showcases, and then the counters. This particular counter was near the front of the store. I observed that this boy was handling these pins. My attention was called to it in the way in which he was handling them, in a suspicious manner, and I saw him take one pin and place it in his pocket, and then he took it out and put it back and looked there for a little while, and he took up the pin again and placed it in his pocket. About this time I was called to the candy counter, and then I called the floor man, Mr. James, and told him to watch that boy, that he had a pin in his pocket. I went to the candy counter, and, after seeing that they were taking the candy orders down properly, I walked back towards the counter where this boy had been, and he wasn’t there, he had gone, and about that time I saw him and Mr. James starting down the west aisle going towards the office in the rear of the store. Mr. James is our floor man. He is the man who watches the floor, looks after sales girls, sees that the people are waited on, and sometimes watches the counters to see that no goods are stolen or taken away. It is a frequent thing for goods to be taken from the counter. As a rule we find boys taking things from the counters. I called the floor man’s attention to this boy, and left him, and when I saw them again the boy and this man were walking back down the aisle towards the office. Mr. James did not have hold of the boy. The boy was in front of Mr. James. I did not put my hands on the boy. Q. Were you present when they started back down the aisle? A. I was not present when he stopped the boy or started back with him, but I saw them going down the aisle, and I followed behind Mr. James. I was maybe ten feet behind. Before we reached halfway of the store I was right behind. Then we went to the office. No one assisted the boy up the stairs. He did not offer any objections or resist in the slightest. The cashier and Mr. McDonald, the advertising manager of the Texarkanian, were up there in the office. The boy turned out his pockets. No one told him to, not that I heard. He just turned out his pockets. I observed some candy on him. I did not find a pin on him. I told him that he should be careful about standing at our counters and not to act in a suspicious manner, because we had had so much trouble with' boys taking things away. The boy went on then. Nothing was said about it to any one that evening. I didn’t mention it, and no one spoke to me of it. He had not started away when he put the pin in his pocket the last time. He was still standing there at the counter. I didn’t see him put the pin back. He walked right back down the aisle ahead of Mr. James unassisted. I did not hear any one accuse the boy of theft. I did not see any one put their hands on him. I did not see any unwillingness or protest on his part. He went up the stairs and just turned his pockets out.”

The finding of the jury, involved in their verdict, that appellant by its employes Scott and James wrongfully assaulted and detained appellee, and that he thereby was injured, is supported by testimony in the record, and we so find the facts to be.

The first paragraph of the court’s charge to the jury, attacked as erroneous, was as follows: “If you believe from the evidence that the plaintiff, Clinton Lawrence, was, on or about the 26th day of October, 1912, in the store of S. H. Kress & Co., a private corporation, incorporated under the laws of Texas, and located at Texarkana, Tex., and was about to leave said store, and that Clarence Scott suspicioned or believed that plaintiff, Clinton Lawrence, had stolen some of the merchandise in and belonging to said store, and acting under such belief he (said Scott) either in person, or acting with another, took hold of and examined him against his will, and without his consent, to find out if his (said Scott’s) belief was true, and if you further believe from the evidence that the plaintiff, Clinton Lawrence, had not stolon any goods or merchandise from said store, and if you further believe from the evidence that while so taking, holding, and examining the plaintiff, Clinton Lawrence, if you find he did it, and that the said Clarence Scott was acting within the general scope of his authority and employment, then you will find for the plaintiff; or if you believe from the evidence that plaintiff had not stolen anything from said store, and if you further believe from the evidence that some other-person, who was an employe of said S. H. Kress & Co., took hold of and examined the plaintiff, if you find that he did it, and said other person, an employe of said S. H. Kress & Co., was acting within the general scope of his employment, then you will find for the plaintiff.”

Among other special charges reguested by appellant were those numbered 2, 3, 4, and 5, which were refused by the court. His action in refusing them is assigned as error. Said special charges are copied below in the order mentioned:

No. 2: “You are instructed that if from the testimony you believe that C. W. Scott, the manager of defendant’s store, saw the ■plaintiff take from the jewelry counter a stick pin, or some other article of jewelry, and put it in his pocket, and then put it back on the counter, and then take it up again, and again put it in his pocket, and walk off with it, then he had the right to detain, or cause to be detained, the plaintiff, either for the purpose of recovering said pin or to determine what he did with it, and the defendant would not be liable for the damages, if any, occasioned thereby.”

No. 3: “You are instructed that if from the testimony you believe that the floor man called to the plaintiff as he was leaving the store and asked him what he had done with the stick pin, or where the stick pin was, or substantially that, and further that at the time he so called and asked said question he in good faith believed that the plaintiff had taken a stick pin from the jewelry counter, and had reasonable cause for such belief, and that thereafter the plaintiff denied that he had such pin and voluntarily offered to prove that he did not have it, that he willingly went to the office and there without objection and voluntarily exposed his pockets, then your verdict in this case should be for the defendant, even though you may believe that the plaintiff did not in fact carry off a stick pin from the counter, and even though the floor man guided or directed or instructed him to go to the office.”

No. 4: “You are instructed that if from the testimony you believe that the plaintiff by his conduct induced the employés of the defendant to believe that he had taken from the jewelry counter a stick pin, and that a person of ordinary care and prudence under similar circumstances would have so believed, and that the floor man, by reason of such belief, caused the plaintiff to stop at or near the door, then your verdict should be for the defendant, even though you may further believe that the said floor man caused the plaintiff to go with him to the office of the store and there expose his pockets and do such other things as the proof shows he did do.”

No. 5: “You are instructed that if from the testimony you believe that the plaintiff, when he was at the jewelry counter, conducted himself in such a manner as would have led a person of ordinary care and prudence observing him to believe that he was taking off a stick pin or some other article of jewelry, and that the employes of the defendant who observed said conduct were led to believe and in good faith did believe that he was doing so, and that thereafter, in consequence of such belief, did what the proof shows they thereafter did to plaintiff, then the plaintiff cannot recover and your verdict should be for the defendant.”

Appellant’s first assignment, in which it complains of the refusal of the court to give to the jury its special charge numbered 5, and its second assignment, in which it complains of the refusal of the court to give its special charge numbered 2, are grouped in the brief. Waiving a question as to whether appellant is entitled to have the assignments considered or not, because they present different questions, and therefore should not have been so grouped, we have considered them and are of the opinion they should be overruled.

It will be noted that said charge numbered 5 required the jury, without any qualification whatever, to find for appellant if they believed appellant’s employés in good faith believed appellee had stolen the pin, and further believed that a person of ordinary care and prudence, observing his conduct as they did, would! have reached a like conclusion. The contention made that it was error to refuse the charge is predicated on the testimony of appellant’s manager, Scott, that he saw appellee take one of the pins and place it in his pocket. It is argued that if appel-lee did that he did wrong; that Scott was thereby misled; and that to permit appellee to recover damages for Scott’s conduct in unlawfully arresting and detaining him would be to permit him to “profit by his own wrongdoing.” As tending to support the contention, appellant cites Hays v. Creary, 60 Tex. 445, and Eormwalt v. Hylton, 66 Tex. 290, 1 S. W. 376. In the first mentioned of the two cases it appeared that Creary, a sheriff, held a capias issued by a court in Falls county commanding him to arrest one Scott Myans, charged with an aggravated assault. Creary arrested Hays, believing he was Myans. As excusing his mistake, the officer testified that Hays told him “he had lived in Falls county and had been there about two months ago; had a fight there, but had settled it.” The court reversed a judgment in favor of the sheriff, saying the testimony referred to might be considered in mitigation of damages recoverable by Elays, but did not present a defense to any recovery at all by him. In the course of the court’s opinion they quoted from 3 Waits’ Actions and Defenses, p. 316, as follows: “In case a wrong person is arrested through mistake, all persons causing the arrest are liable for the injury, unless the party complaining has brought the injury upon himself by his own misstatements and misrepresentations. Thus, if there was a legal ground for arresting A., and B. represents himself to be A. and is arrested in consequence of that representation, he has obviously no valid ground for complaining of the imprisonment which naturally resulted from his own act. But, after he has given notice that he is not the person he represented himself to be, he cannot lawfully be detained for a greater length of time than may be reasonably necessary to ascertain which of the several statements he has made is in accordance with the truth.” In the other case mentioned it appeared that Formwalt, a sheriff, and others acting with him, having a warrant commanding them to arrest Dow and Riley Hyl-ton, by mistake, it was claimed, arrested E. Blylton, the plaintiff, father of said Dow and Riley Hylton. The Supreme Court, affirming a judgment against the sheriff, approved as a correct statement of the law as laid down in 1-Iays v. Creary, supra, a charge to the jury “that such mistake could be considered in mitigation of damages, and on the question of malice, but that it would not justify the imprisonment, unless the mistake was caused or contributed to by the plaintiff’s words or acts.”

It is obvious, we think, that the cases referred to on their facts are so clearly distinguishable from this one that they are of value in determining the question made by the charge refused only because they approve as correct the doctrine announced in the quotation made from Waits’ Actions and Defenses. Is this case, as made by said testimony of the witness Scott, within that doctrine? The basis of the doctrine, it will be observed, is the principle applied in cases of equitable estoppel, which has been stated to be: “That where A. has by his acts or representations, or by his silence when he ought to speak out, intentionally or through culpable negligence induced B. to believe certain facts to exist, and B. has rightfully acted on this belief, so that he' will be prejudiced if A. is permitted to deny the existence of such facts, A. is conclusively estopped to interpose a denial thereof.” 11 A. & E. Enc. Law, p. 421. It may be conceded the jury might have found from the testimony referred to that appellant’s employés were induced by appellee’s conduct in placing the pin in his pocket to believe he had it there when they stopped him as he was leaving appellant’s store; but can it be said, as was true in the case of the officers in Hays v. Oreary and Formwalt v. Hylton, that, had they not been mistaken, they would have had a lawful right to arrest and detain him? Under the laws of this state a citizen can lawfully be arrested and detained only when he has, within the presence or view of the officer or private individual making the arrest, committed a crime classed as a felony or as an “offense against the public peace,” or when it is necessary to arrest him “in preventing or interrupting an intrusion upon the lawful possession of property.” Willson’s Ann. Penal Code, arts. 593, 622, and Criminal Code, art. 247. The pin appellant’s employés thought appellee had stolen was worth only ten cents, so, had he stolen it, his offense would not have been a felony. Nor would his offense have been classed as one “against the public peace.” If, therefore, appellant’s em-ployés had a right to detain him, it must have been.for the purpose of “preventing or interrupting an intrusion upon the lawful possession of property” belonging to appellant. A qualification of the authority conferred to arrest without a warrant on this ground is that it must be shown that the arrest and detention were necessary to prevent or interrupt such intrusion. The statute, we think, was intended to authorize the owner of property to use force, if necessary, to enable him to retain possession of property lawfully held by him but not to use force to recover possession thereof lost to him because of the unlawful act of another. The law provides another way by which he can recover possession of property which has been stolen from him. Willson’s Ann. C. C. P. art. 343 et seq. In this case, according to the testimony of the witness Scott, if his suspicion had proven to be well-founded, ap-pellee had taken the pin, appellant was no longer in possession of it, and the article of the Penal Code referred to did not justify its employés in using force not to prevent or interrupt an intrusion which had already resulted in transferring the possession of the pin from appellant to appellee, but to regain possession thereof.

If, however, we are wrong in the conclusion reached, we nevertheless are right in holding that the special charge should not have been given for another reason. When approached by appellant’s employés and charged with having the pin, appellee promptly denied the truth of the charge and offered then and there to show by turning his pockets inside out that he had not taken the pin. If it should be assumed that thus far appellant’s employés were acting within their rights under the doctrine referred to, it is plain they exceeded same under that doctrine when they afterwards, according to his account of what happened, forcibly compelled appellee to go to the second floor in the building and there submit to indignities offered him. This is made clear by the ruling of the court in Landrum v. Wells, 7 Tex. Civ. App. 625, 26 S. W. 1001. There it appeared that the plaintiff, Wells, had been wrongfully arrested and imprisoned by Landrum and another officer, holding a capias, on a charge of murder. In defense against the recovery sought by Wells against them, the officers set up that the arrest was the result of an honest mistake, and that the mistake was caused by Wells’ acts. In discussing the charge to the jury given by the trial court, the Court of Civil Appeals said: “The court instructed the jury that the defendants would not be liable if the plaintiff, by his acts or words, induced the officers to believe that he was the person wanted and named in the warrant. This charge would be appropriate in a case where the evidence shows that the plaintiff, although not the party wanted, stated to the officer making the arrest that he was the person named in the warrant, and the officer acting on such statement made the arrest, for in such a case the plaintiff cannot be heard to complain, because his statement has occasioned his arrest (Hilton v. Fonda, 86 N. Y. 352); but, in a case where the plaintiff denies that he is the person wanted and named in the writ, his previous conduct and statements tending to show that he is the offender would not completely justify the officer in assuming that he is the person named in the warrant, but such conduct and statements may be heard, as before said, in mitigation of the damages that plaintiff seeks to recover. ■The evidence in this ease tends to show that the plaintiff in effect informed the officer when he was arrested that he was not the man wanted, and in view of this statement, although the officers in arresting him acted under the honest conviction and belief that he was the person wanted, they, in effecting said arrest, assumed the risk and hazard of his being the wrong man.” The charge refused ignored this feature of the case and required the jury, without reference to it, to find in appellant’s favor if they believed appellant’s employés in good faith believed, notwithstanding his denial of the fact, that appellee had stolen the pin, and after such denial subjected him to the treatment he testified they did subject him to. Whatever may be said of the right of said employés to act as they did prior to the time they were informed by appellee that he had not taken the pin, thereafterwards, we think, they acted at their peril. Not only did the charge refused ignore said feature of the case, but in it the jury were told to find in favor of appellant if they believed its employés in good faith, as reasonably prudent persons, believed from the conduct of appellee that he had stolen the pin and “did what the proof shows they thereafter did to plaintiff.” In other words, the jury were told, on the conditions stated, to find for appellant, without reference to the conduct of its employés after they were advised by appellee that he had not taken the pin.

Much of what has been said applies as well to the.special charges numbered 2, 3, and 4. But for another reason also it was not error to refuse to give said special charge numbered 2 to the jury. From an inspection of it as set out in the statement it will be seen that it required the jury to find in appellant’s favor, other conditions concurring, if they believed that its manager, Scott, saw appellee take the pin from the counter, put it in his pocket, put it back on the counter, again put it in his pocket, “and walk off with it.” Not only was there no testimony showing that ap-pellee walked off with the pin, but it was shown conclusively that he did not walk off with it but left it on the counter. As to said special charges numbered 3 and 4, so far as they may have correctly stated the law, we think they were in effect given to the jury in the court’s main charge, and in the special charge numbered 10 given at appellant’s request.

By its second assignment appellant attacks as erroneous the first paragraph in the court’s main charge, which will be found set out in the statement above. The objection to the instruction is that it was not warranted by either the pleading or the evidence in the case. But we think it was. In his petition appellee alleged that appellant’s manager (Scott) and another one of its employés in the store unlawfully arrested him near the front door of the store and forced him to go from that point to the second floor of the building, in the rear thereof, where they unlawfully searched his person. Appellee testified that as he was leaving the store, when he had reached a point near the front door, Scott and another one of appellant’s employés stopped him, demanding to know where he was going with the pin in his pocket; that he thereupon denied that he had a pin in his pocket, when Scott, with his hand on his (appellee’s) shoulder, said, “Let’s go back and see;” that Scott then removed his hand from his shoulder and they walked back to the rear of the store room and then up a stairway to another floor of the building, where he was told to turn all his pockets inside out, which he did; that ■Scott and the other employé walked behind him from the front part of the store to the other floor thereof, and said other employé, as they so walked back, held him by the collar of his coat and pushed him along. The assignment is overruled.

We have disposed of all the assignments except one in which appellant attacks the verdict as excessive. We believe it is, but have doubted whether we should substitute our judgment as to- the sum which will compensate appellee for the wrong done him for that of the jury. The conclusion finally reached by us, keeping in mind the circumstances of the case as shown by the record, is that we should, and, as we are of the opinion that $500 will be amply sufficient for that purpose, we will reverse the judgment unless a remittitur of $500 of the sum adjudged in appellee’s favor is filed with the clerk within 20 days from the date this opinion is filed. If such a remittitur is so filed, then the judgment will be reformed so as to adjudge a recovery of $500 in appellee’s favor, and as so reformed will be affirmed.


author: HODGES, J.

text:
    NATIONAL COUNCIL OF THE KNIGHTS AND LADIES OF SECURITY v. SEALEY.
    (Court of Civil Appeals of Texas. Texarkana.
    Dec. 26, 1913.
    On Motion for Rehearing Jan. 8, 1914.)
    1. Insurance (§ 825*) — Life Insurance — Misrepresentation.
    Where an applicant for membership in a fraternal insurance order denied ever having inflammatory or acute rheumatism, and it appeared that some time previous to his death he had been afflicted with lumbago, or rheumatism of his back muscles, his answer could not be held as a matter of law a misrepresentation under the laws of the order providing that misrepresentations should defeat any recovery.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 2009; Dec. Dig. § 825.]
    2. Insurance (§ 818*) — Fraternal Insurance — Actions—Evidence.
    In an action on an insurance certificate issued by a fraternal order, evidence that, at the time of the application, insured made a full statement to the medical examiner of the order as to his previous affliction with muscular rheumatism, is admissible to show that he did not make any misrepresentation when he denied ever having had acute or inflammatory rheumatism.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 2003-2005; Dec. Dig. § 818.]
    3. Appeal and Error (§ 1151) — Determination-Reversal.
    In an action on a fraternal insurance policy, amounting to $1,000 where it expressly provided that the insurer 'might retain $50 out of each $1,000 for the purpose of constituting a special fund, a judgment which provided for recovery of the full amount of the policy need not be reversed, but will be reformed on appeal so as to allow the reduction.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4498-4506; Dec. Dig. § 1151.]
    On Motion for Rehearing.
    4. Insurance (§ 723) — Fraternal Insurance — Misrepresentation.
    Under Rev. Civ. St. 1911, art. 4834, providing that ail benefit certificates shall be non-contestable on account of any representation made by the applicant, unless such representation shall be material to the risk assumed, a denial that the applicant had been treated by a physician for any constitutional disease or injury within five years cannot be held as a matter of law a representation material to the risk assumed, where it appeared that he had only been given electric treatments for a stiff back.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1859-1865; Dec. Dig. § 723.]
    Appeal from District Court, Hunt County; R. L. Porter, Judge.
    Action by Jennie Y. Sealey against the National Council of the Knights and Ladies of Security. From a judgment for plaintiff, de-
    fendant appeals.
    Affirmed.
    Crosby, Hamilton & Harrell, of Greenville, for appellant. Evans & Carperiter, of Green-ville, for appellee.

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

   HODGES, J.

This is a suit instituted by the appellee to recover the sum of $700 alleged to be due upon a policy of insurance issued on the life of her husband, Allen B. Sealey. The appellant is a fraternal and mutual benefit association composed of subordinate lodges and a supreme lodge called the National Council. It has a subordinate lodge, or local council, at Greenville, Tex. In January, 1911, A. B. Sealey was admitted as a member of that council, and there was issued to him a policy insuring his life in the sum of $1,000 for the benefit of his wife. The policy contained a provision limiting the amount payable to 70 per cent, of the face of the policy if the insured died after the expiration of six months and within twelve months from the date of his membership. The policy also contained this further provision: “It is herein further provided that for the purpose of creating and maintaining a reserve fund, on the death of the said member the National Council shall retain fifty dollars of each one thousand dollars of this certificate, less one dollar per thousand for each year this certificate shall remain in force.” As the consideration for the issuance of this certificate of insurance, Sealey agreed to pay monthly the sum of $1.65. He died on October 2, 1911. As a defense to this action appellant pleads that Sealey had failed to make his monthly payments as required by the laws of the order, and had made certain false statements in his application for membership concerning his previous health and the attention which had been given him by a physician. This appeal is from a verdict and judgment in favor of the appellee for the sum of $700..

It is contended that the evidence was insufficient to support the verdict of the jury, upon the ground that it was conclusively shown that Sealey had defaulted in the payment of his September dues, and according to the laws of the order his policy was void at the time of his death. This issue was submitted to the jury -under appropriate instructions, and the verdict involves a finding against the appellant. While the evidence upon this point is somewhat meager, we are not prepared to say that it is not sufficient to support the finding of the jury. We think the objections here made by the appellant to those portions of the charge wherein the court submitted the particular facts upon which the payment of Sealey’s dues depended are not tenable, and those assignments are overruled.

It is also contended that Sealey made certain false statements in Ms application ior membership, and the following questions and answers are referred to: “Q. Have you had acute or inflammatory rheumatism? A. No. Q. Have you had any illness, constitutional disease, or injury during the past five years requiring the services of a physician or surgeon? A. No.” These questions and answers appeared in the application which was presented to and attested by the medical examiner of the order. The testimony showed that Sealey died of acute Bright’s disease. It was shown by Ms family physician, Dr. J. A. Smith, that he (Smith) attended Sealey during his last illness. The witness also testified that he had treated Sealey for about 30 days for muscular rheumatism about four years prior to Ms death; that the disease was what some people would call lumbago, the muscles of his back being affected; that Sealey was treated exclusively by electricity, and came to the office of witness for that purpose. He further testified that Sealey’s condition at that time was one of chrome rheumatism. There was other testimony tending to show that muscular rheumatism is a symptom rather than a disease; that it is somewhat akin to inflammatory rheumatism; that both are produced by the same cause. One affects the muscles, and the other the joints. Section 8S of the laws of the appellant order is as follows: “In case any person shall make false representations in his application or medical examination for membership either as to his physical or mental health or condition, age, or family history, or as to any other fact, or shall conceal any of his personal habits that are in violation of the laws of the order, or shall conceal any other fact affecting the risk, neither such person nor his beneficiary or beneficiaries shall be entitled to receive any benefits by reason of a beneficiary certificate having been issued to him.” It ⅛ insisted by appellee that the statement made by Seal-ey in his answer, that he had never had acute or inflammatory rheumatism, was true according to the testimony of his physician. We are of the opinion that the evidence bearing upon that question was not such as to authorize us to hold as a matter of law that muscular rheumatism, such as that with which Sealey is said to have been afflicted four years prior to his death, is the same as that which is referred to as acute rheumatism in the application.

It is also urged by appellee that Sealey made a full and candid statement of Ms condition to the medical examiner at the time his application was presented. Dr. J. A. Erench, who was at the time the medical examiner, and who was appointed by the National Council to act in that capacity, testified that Sealey told him about his previous affliction with muscular rheumatism and of his having been treated by Dr. J. A. Smith. This testimony was objected to by the appellant. We think the evidence was correctly admitted, in view of the position held by Dr. French. As supporting that ruling, we refer to the case of Supreme Lodge, etc., v. Jones, 143 S. W. 247. Sealey appears to have acted candidly in stating to the representative of the appellant his physical condition, and to hold that the answer which was given in connection with the explanation made by Sealey is ground for annulling the policy of insurance would be to invoke a legal technicality for the purpose of defeating a meritorious claim.

It is further objected that the judgment is excessive in that the jury found, and the court rendered, a judgment for the amount of $700, while the policy stipulated that $50 might be retained for the purpose of constituting a special fund. We think that objection is well taken. It is unnecessary, however, to reverse and remand the case in order to correct that error; and the judgment will therefore be reformed so as to allow the deduction provided for, and as reformed will be affirmed.

The costs of this appeal will be taxed against appellee.

On Motion for Rehearing.

In its motion for rehearing the appellant calls attention to the fact that the insured made a false answer to a question not referred to in the original opiMon. That question was as follows: “Have you had any illness, constitutional disease, or injury during the past five years requiring the services of a physician or surgeon?” To this question the insured answered, “No.” It is claimed that the undisputed evidence shows that this answer was false. It is insisted that article 4959 of the Revised Civil Statutes of 1911, which provides that no recovery upon any life, accident, or health insurance policy shall be defeated because of any misrepresentation in the application which is of an immaterial fact and which does not affect the risk assumed, does not apply. That may be true; but article 4834, which refers to fraternal beneficiary associations, does apply and should be considered in determining-what disposition should be made of this assignment. That provision is as follows: “All benefit certificates shall from the date of their issuance be noncontestable on account of any statement or representation made by said applicant for membership, either in his-application or otherwise, or his medical examination, unless such representation shall be material to the risk assumed; and the burden of proof shall be upon the defendant to affirmatively establish such defense.” The above is a part of the act of 1909, which was in effect at the time this policy was written.

We cannot say as a matter of law that the misrepresentation referred to was material to the risk assumed. The motion for rehearing is therefore .overruled.


author: TALBOT, J.

text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. BURK.
    (Court of Civil Appeals of Texas. Dallas.
    Dec. 20, 1913.
    Rehearing Denied Jan. 10, 1914.)
    1. Appeal and Error (§ 1170) — Harmless ■ Error — Admission of Evidence.
    The admission of irrelevant evidence was not reversible error, under the substantially direct provisions of Code of Civil Appeals rule 62a (149 S. W. x), if it was not such as was reasonably calculated to influence the jury in arriving at their verdict.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 4032, 4066, 4075, 4098, 4101, 4454, 4540-4545; Dec. Dig. § 1170.]
    2. Evidence (§ 559) — Supporting Testimony.
    Where the professional skill or reputation of physicians who testified was not sought to be impeached, evidence was not admissible to show that they had the reputation of being skillful physicians.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2380; Dec. Dig. § 559.]
    3. Appeal and Error (§ 1060) — Harmless Error — Remarks op Counsel.
    Any impropriety in remarks of counsel in argument was not prejudicial, where it could have only influenced the jury in determining the amount of damages awarded, and the verdict is not complained of as excessive, and the record does not show that it is against the preponderance of the evidence.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. § 4135; Dec. Dig. § 1060.]
    4. Trial (§ 260) — Requested Instructions— Charges Already -Given.
    There was no error in refusing a special requested charge, submitting in a negative way the question of proximate cause in a personal action, where the court’s main charge substantially instructed thereon.
    [Ed. Note. — Por other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.]
    Appeal from District Court, Hunt County; A. P. Dohoney, Judge.
    Action by S. C. Burk against the Missouri, Kansas & Texas Railway Company of Texas. Prom a judgment for plaintiff, defendant appeals.
    Affirmed.
    Dinsmore, . McMahon & Dinsmore, of Green-ville, for appellant. Evans & Carpenter, of Greenville, for appellee.

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

   TALBOT, J.

This is an action by S. C. Burk, the appellee, to recover of the appellant damages for loss of the services of his minor son, Willard Burk, and for expenses incurred in caring for his said son, occasioned by personal injuries inflicted upon him through the alleged negligence of appellant’s servants. The case was before this court on a former appeal. 150 S. W. 748. In the amended petition, upon which the case was tried, plaintiff alleged, in substance, that his minor son, Willard, was driving a team of mules drawing a water wagon, traveling: on Washington street, in the city of Green-ville, toward the crossing of appellant’s tracts over said street, and that, when he was near the railway tracks, a passenger-train of the defendant from the north ran over the said- street and frightened the team which his son was driving, and caused it to run backward, turn around, break the-wagon, and throw his son, Willard, to the ground and injure him; that in thus injuring his son the appellant was guilty of negligence-in the following particulars, viz., in approaching the street crossing without giving any warning or notice of the approach of the-train, and by operating the engine and train over the crossing at a speed greater than six miles per hour, in violation of the ordinances-of said city of Greenville, “in causing and permitting the escape of steam and smoke from the engine in large volumes and making a tremendous noise” at which the team his son was driving became frightened, and in-the action of appellant’s watchman at said street crossing in inducing Willard Burke to-undertake to cross the railway track, and also in failing to stop Willard Burke before he approached the track. The defendant answered by general denial and by pleas of contributory negligence, and that the appellee- and his son refused proper medical care and treatment, and thereby aggravated the injuries and prevented a recovery. The ease was tried with the aid of a jury, and the trial resulted in a verdict and judgment for the plaintiff, and appellant perfected an appeal to this court.

Assignments of error Nos. 1, 2, 3, 4, 5, and 8 in the brief complain of the admission of certain testimony over the objection of appellant that said testimony was immaterial and irrelevant. No new and important question-of practice is raised by either of these assignments, and we deem it unnecessary to-síate the testimony referred to in them and the propositions advanced by appellant in-support of its contention that the several rulings of-the court complained of were erroneous.

Some of the testimony admitted was,, we think, relevant to the issues upon which it was offered, and admissible; that some of it was irrelevant anl inadmissible, but, whether admissible or inadmissible, it was-not of such a character as was reasonably calculated to influence the jury in arriving at their verdict to the prejudice of appellant, and was therefore harmless. Rule 62a (149 S. W. x).

Assignments Nos. 6 and 7 in the brief complain of the exclusion of certain testimony offered by the appellant. The testimony offered, the rejection of which is made the basis of the sixth assignment, might well-have been allowed, but its exclusion clearly resulted in no injury to appellant, and therefore furnishes no ground for a reversal. The testimony, the exclusion of which is made the basis of the seventh assignment, was inadmissible.

1.2] There was no such attack upon, or impeachment of, the professional reputation, skill, and ability of either Dr. Arnold or Dr. Cantrell as warranted the introduction of testimony to show that they were, or bore the reputation of being, competent and skillful physicians and surgeons.

The ninth assignment' complains of certain remarks of counsel for appellee in his argument to the jury. If it be conceded that the language was not strictly within the bounds of legitimate argument, yet, as it could have influenced the jury only in arriving at the amount of the damages to be awarded appellee, and as the verdict is not complained of as being excessive, and as the record does not indicate that the amount of the verdict is against the preponderance of the testimony, it cannot be said that the remarks prejudiced the rights of appellant and furnishes a ground for a reversal of the case.

The refusal of the following special charge requested by appellant is assigned as error, namely: “If you believe from the evidence that plaintiff’s son, Willard Burk, was not guilty of negligence in driving his team to the point where it was at the time defendant’s locomotive crossed over Washington street, and if you further believe from the evidence that defendant’s locomotive, as it passed over Washington street, was moving at a speed greater than six miles per hour, and if you believe from the evidence that the team plaintiff’s son was driving took fright at the said locomotive, nevertheless, unless you further believe from the evidence that said team took fright at said locomotive because it was moving at speed greater than six miles per hour, and that said team would not have taken fright if the said locomotive had been moving at a speed of six miles per hour or less, then, and in that event, you cannot find for plaintiff by reason of the speed of the locomotive and train.” The .refusal of this charge on the former appeal was held to be error. The ruling was based upon decisions of this state, then cited, to the effect that when the evidence is conflicting upon the issue sought to be submitted in' the refused special charge, and such issue has been submitted in the court’s main charge as an independent or separate act of negligence upon which alone the jury were authorized, if the same was the proximate cause of the injuries complained of, to find a verdict for the plaintiff, the defendant was entitled, upon proper request, to have the negative of the issue affirmatively submitted to the jury. In the state of the record now before this court, there was no error in refusing the special charge in question.

The record now shows that the trial court in the main charge affirmatively submitted to the jury the negative side of the issue as to whether the team driven by Willard Burk took fright at appellant’s locomotive because it was moving at a speed greater than six miles per hour. Immediately following the paragraphs of the court’s charge submitting to the jury the combination of facts which, if found to exist, would authorize a verdict for appellee, the court instructed the jury, in substance, that, unless they found from the evidence that défend-ánt’s employes, or some of them, were negligent in the respects referred to in said paragraphs, and that such negligence was the proximate cause of said Willard Burk’s injuries, to find for defendant. By these instructions the rule announced in the decisions to which we have referred was substantially, at least, complied with, and the rights of the appellant with respect to the issue of negligence referred to in the refused special charge were practically as well protected as if said special charge had been given. Hence we hold that in the present state of the record the refusal of the special charge under consideration furnishes no ground for a reversal of the case.

The eleventh assignment of error complains of the refusal' of .a similar special charge with reference to the issue of negligence predicated upon the escape of steam from appellant’s engine, and, for the reason just given why there was no error in refusing. the special charge relating to the issue of negligence based upon the excessive rate of speed at which the train was being propelled, there was no error in rejecting this charge.

The court’s charge fairly submitted the issues in the case, and the evidence sustains the verdict. The judgment is therefore affirmed.

Affirmed.