text:
    CANTRELL v. STATE.
    (No. 3998.)
    (Court of Criminal Appeals of Texas.
    March 22, 1916.)
    Criminal Law <©=51096, 1102 — Statement of Facts — Bills of Exception — Time foe Filing.
    Where appellant from a conviction of misdemeanor did not file his statement of facts until 85 days after adjournment of the county court for the term at which he was convicted, and the bills of exception did not show when they were filed, hut merely that they were approved by the judge within the time by law in which they could have been legally filed, the state’s motion to strike the statement and bills must be sustained.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2847; Dec. Dig. <©=51096, 1102.]
    Appeal from Bell Comity Court; W. S. Shipp, Judge.
    Cotton Cantrell was convicted of misdemeanor, and he appeals. On motion to strike the statement of facts and hills of exception from the transcript.
    Motion sustained.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

This is a misdemeanor conviction. The term of court at which appellant was convicted adjourned November 30, 1915. The statement of facts contained in the record was not approved until January 3d, and, after being approved on that date, was not filed until February 13, 1916 — some 85 days after the adjournment of county court for the term. The bills of exception contained in the record do not show when filed with the clerk of the county court, but the date of approval by the judge shows they were approved within the time allowed by law in which they could be legally filed. Therefore the motion of the Assistant Attorney Genera] to strike the statement of facts and bills of exception from the transcript must be sustained. De Friend v. State, 153 S. W. 881; Durham v. State, 155 S. W. 222.

The judgment is affirmed.

DAVIDSON, J., absent.


source: Caselaw Access Project

author: HARPER, J.

license: Public Domain

text:
    LEONARD v. STATE.
    (No. 4000.)
    (Court of Criminal Appeals of Texas.
    March 22, 1916.)
    Criminal Law <&wkey;945(2) — New Trial-Evidence — Sufficiency.
    Where, after conviction on unsatisfactory evidence for theft of a hog, the accused attached to his motion for new trial affidavits of three persons that they had, subsequent to the trial, seen the hog alleged to have been killed and taken by accused in the river bottom, where it was allowed to run, refusal.of new trial was error.
    [Ed. Note. — -For other cases, see Criminal Law, Cent. Dig. §§ 2324 — 2327; Dec. Dig. <§=e 945(2).]
    Appeal from District Court, Angelina County; L. D. Guinn, Judge.
    Loss Leonard was convicted of theft of a hog, and from an order denying new trial, he appeals.
    Reversed and remanded.
    I. D. Fairchild, of Lufkin, and W. J. Townsend, Jr., of Jacksonville, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of theft of a hog, and his punishment assessed at two years’ confinement in the- state penitentiary.

The state’s case, as testified to by its witnesses, is that J. E. Lee owned some hogs that run at large in the Neches river bottom, one of the hogs being a black-listed sow, the list consisting of a white streak covering its left hind foot and extending up over the thigh and to near the center of the back. He says his hogs were marked over square and two underbits in right ear, and a crop and underbit in the left ear. Mr. Lee says he had seen this hog in the bottom frequently prior to the alleged theft, but had been unable to find her since that time. Allen Ash-worth testified that he, appellant, and Bert Lester went hog hunting, appellant claiming to own hogs in the bottom; that they looked at several droves of hogs, finally coming to the drove in which was the sow that was killed, Ashworth shooting the hog at the request of appellant. The hog was cleaned, its head cut off, and when appellant cut the head off Ashworth says he told appellant “it was ,a penitentiary offense to cut the hog’s head off after sundown in the woods”; that this was his understanding of the law. Appellant replied, “If there is ever going to be any question about it, I had just better cut the ears off to show it is my hog,” and appellant did cut the ears off and put them in his pocket. Ashworth says the sow they killed was a black sow with one white foot, the white extending up over her thigh; that he did not notice the mark. This is the proof relied on to show that the hog killed was the hog of J. E. Lee.

Appellant introduced testimony that he owned a number of hogs that also ran in the bottom, and that he owned one “listed” virtually the same as the. hog testified to by J. E. Lee; that his hogs were marked crop and split in right ear and two underbits in left. Bert Lester testified that the hog killed was in the mark of appellant, and not in the mark of Lee. The ears that appellant claimed he cut off the hog killed were introduced in evidence, and Mr. Lee testified, “If these ears came off the hog killed by defendant, it was not my hog;” that the mart was not his mark. And it seems to be proven beyond question that the ears introduced in evidence were in' appellant’s mark, and it is also shown beyond question that appellant owned hogs that ran in the bottom. To say the least of it, the evidence is very unsatisfactory to show that the hog killed was the hog of Mr. Lee, from whom it is alleged the hog killed was stolen. All the evidence on this point is that Ashworth says they killed a black sow with some white spots, the white extending up on the side. Lee says he lost a sow about this time of this general description, and he had not been able to find it since that’time, and that his hog was in a certain mark; no witness testifying that the hog killed was in that mark. On the contrary, Bert Lester, who was present when the sow was killed, says the hog was not in Lee’s mark, but in appellant’s mark, and appellant so testifies. In addition to this, all the.witnesses say appellant cut the ears off under the circumstances hereinbefore recited, and these ears, according to his testimony, are produced in court, and Mr. Lee says, if these are the ears cut off the hog killed, it is not his hog. With the evidence in this unsatisfactory condition as to the ownership of Lee of the hog killed, to the motion for a new trial appellant attaches the affidavit of W. H. C'rager, Y. I. Stringer, and Artie Crager, who swear that since the trial and conviction of appellant they went to the Neches river bottom to search for the hog of Mr. Lee, and that some two miles below the accustomed range they found the hog of Mr. Lee alive, with another hog belonging to him; that “they saw the sow Mr. Lee claims to have lost on last Saturday (after the trial of appellant), and the sow was in the mark of Mr. Lee; that'she had one white foot and the white streak extended over her hip up on her back.” binder such circumstances we are of the opinion a new trial should have been granted. This testimony may not be true, but, if not, these three witnesses committed perjury; but, there being no evidence that they did not see this sow alive since the conviction of appellant, we are of the opinion the court erred in not granting a new trial on this newly discovered testimony. Crockett v. State, 14 Tex. App. 229.

The judgment is reversed, and the cause remanded.

DAVIDSON, J., absent.
      <§=n>For other eases see same topic arid KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PRENDERGAST, P. J.

text:
    SIMMONS v. STATE.
    (No. 3993.)
    (Court of Criminal Appeals of Texas.
    March 15, 1916.
    Rehearing Denied April 5, 1916.)
    1. Cbiminal Law &wkey;>406(4) — Secrecy of Proceedings — Evidence of Grand Juror.
    The admission of a grand juror’s testimony as to what the accused testified to before the grand jury when subpoenaed and required to answer, without being informed of her privilege, is erroneous.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 920-927; Dec. Dig. <&wkey;>406 (4).] :
    2. Adultery &wkey;>7 — Indictment—Sufficiency — Surplusage.
    In charging the crime of adultery, the indictment need not allege the name of the accused’s spouse, and, if alleged, it may be treated as surplusage.
    [Ed. Note. — For other cases, see Adultery, Cent. Dig. §§ 12-16; Dec. Dig. &wkey;7.]
    3. Adultery &wkey;>10 — Marriage of Accused-Presumptions.
    The state need not prove that the alleged adulterer’s spouse was actually living at the time of the offense charged, but from proof that he was alive within one year prior thereto, the rebuttable presumption that he still lived arises.
    [Ed. Note. — For other cases, see Adultery, Cent. Dig. § 19; Dec. Dig. <&wkey;10.]
    Appeal from Ellis County Court; W. M. Tidwell, Judge.
    Lizzie Simmons was convicted of adultery, and she appeals.
    Reversed.
    W. H. Fears and J. C. Lumpkins, both of Waxahachie, for appellant Tom Whipple, Co. Atty., of Waxahachie, and C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

This is an appeal from a conviction for adultery, with the lowest fine assessed.

Appellant’s bill of exceptions No. 3, in substance and in effect, shows that, while the grand jury was investigating this case, they had appellant brought before them on a subpoena. They administered to her the oath required by law, and at the time explained to her the nature of that oath, and told her that she had to tell the truth to whatever question that was asked her, and, if she did not tell the truth, they would send her to the penitentiary. They did not warn her that she had the right to testify or not as to anything that would implicate her in the offense They then asked her whether she was a married, woman, and she thereupon answered that she was, and told to whom and when she was married. Immediately upon the close of her testimony, they delivered her to the constable, the officer who had summoned and brought her before them, with instructions to lock her up in jail, which was done. Soon afterwards the grand jury returned the indictment in this case against her. On this trial, they introduced the foreman of the grand jury and permitted him, over her objections, to testify what she had testified before the grand jury. The admission of the grand juror’s testimony was clearly erroneous, and must result in the reversal of the judgment. Wood v. State, 22 Texas App. 431, 3 S. W. 336; Gilder v. State, 35 Tex. Cr. R. 360, 33 S. W. 867; Calloway v. State, 55 Tex. Cr. R. 262, 116 S. W. 575; Fry v. State, 58 Tex. Cr. R. 169, 124 S. W. 920. It is unnecessary to cite other cases.

In tlie offense of adultery, it is unnecessary for tlie indictment to allege tlie name of tlie person to wliom an accused is married. Even, if alleged, it may be treated as surplusage. Bodkins v. State, 172 S. W. 216; Goodwin v. State, 70 Tex. Cr. R. 600, 158 S. W. 274. However, it would be better not to allege tbe name of tbe husband or wife to whom an accused is married.

When proper evidence that one or the other of the parties to the offense of adultery is married as alleged, it would not be necessary for the state to prove that the husband or wife, by positive proof, was actually living at the time of the alleged offense, especially when proof is made that the husband or wife, as the case may be, was living within a year prior thereto. Both the presumption in law and in fact would be that the party was still living, unless other proof was introduced to show the death of the party before the offense was committed.

It is unnecessary to discuss any of the other questions raised, for the error in admitting the testimony of the foreman of the grand jury will cause the reversal of this case.

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


author: KEY, C. J.

text:
    STATE v. GALVESTON, H. & S.A. RY. CO.

    (No. 5533.)
    (Court of Civil Appeals of Texas. Austin.
    Jan. 26 1916.
    Rehearing Denied March 1, 1916.)
    1. Railroads <&wkey;226 — Accommodations fob White and Colored Passengers — Penalty.
    Rev. St. 1911, art. 6746, requires carriers of passengers to provide separate coaches or compartments for white and negro passengers, equal in all points of comfort and convenience. Article 6748 requires the separate compartments to be lettered indicating the race for which each is set apart. Article 6749 provides the penalty for noncompliance. Article 6750 provides an exception that railroad companies may haul sleeping cars, dining or café cars, or chair cars to be used exclusively by either white or negro passengers separately, but not jointly. Article 6753 requires conductors to refuse admittance or eject passengers not entitled to ride under the above provisions. Held, that, if the carrier furnishes the accommodations required, no penalty can be recovered from it, although the passenger or conductor may be subject to penalty for riding or permitting one to ride in the wrong car.
    [Ed. Note. — For other, cases, see Railroads, Cent: Dig. § 740; Dec. Dig. &wkey;226.]
    2. Railroads <&wkey;254(6) — Operation—Accommodations — Penalty—Burden of Proof.
    In an action to recover the penalty under such statutes, the burden is on the state to show that the required accommodations were not provided.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 772; Dec. Dig. &wkey;254(6).]
    3. Railroads <&wkey;254(6) — Operation—Accommodations — Penalty—Evidence.
    Evidence that white and negro passengers occupied together a particular Pullman coach is insufficient to show that' other coaches properly marked and fitted, as required by such statutes, were not provided.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 772; Dee. Dig. <§uu>254(6).]
    4. Commerce <&wkey;62 — Carriage of Passengers — Negroes—Accommodations.
    Neither the railroad nor the conductor has, under such statutes, the right to compel an interstate negro passenger to leave the coach in which he was riding and go into another, though equal in point of comfort and convenience.
    [Ed. Note. — For other cases, see Commerce, Cent. Dig. § 81; Dee. Dig. <¿¿362.]
    5. Railroads <&wkey;254(6) — Operation—Accommodations — Penalty—Burden of Proof.
    Under such statutes, if it be conceded that they apply to Pullman coaches, the burden is on the state to show that no other Pullman coaches in the train were equipped as prescribed, in the absence of which showing no penalty could be recovered.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 772; Dec. Dig. <&wkey;254(6).]
    6. Railroads <&wkey;254(6) — Operation—Accommodations — Penalty—Burden of Proof.
    In an action for the penalty under such statutes, the fact that the railroad proved proper accommodations in day coaches and made no proof as to the condition of accommodations in Pullmans is insufficient to shift to it the burden of proving compliance as to Pullman coaches.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 772; Dec. Dig. &wkey;254(6).]
    7. Railroads <&wkey;226 — Operation—Accommodations — Penalty.
    Under such statutes, if the train contained Pullman coaches properly marked and fitted, the fact that a negro- was permitted to ride in a Pullman not so marked or equipped would not entitle the state to recover the penalty from the railroad.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 740; Dec. Dig. <S&wkey;226.]
    Appeal from District Court, Travis County ; Geo. Calhoun, Judge.
    Action by tbe State of Texas against the Galveston, Harrisburg & San Antonio Railway Company. Judgment for defendant, and the State appeals.
    Affirmed.
    B. F. Looney, Atty, Gen., and Luther Nickels, Asst. Atty. Gen., for the State. H. M. Garwood, J. H. Tallichet, and Baker, Botts, Parker & Garwood, all of Houston, for appellee.

      Application for writ of error pending in Supreme Court.

   KEY, C. J.

In this case there was a non-jury trial, and the judge filed the following conclusions of fact:

“(1) It was admitted upon the trial and in the answer of the defendant, and the court concludes as a fact, that the defendant was a railway corporation organized and existing under the laws of the state of Texas at the time referred to in the petition; that it owned, controlled, and operated a line of railway extending from the Rio Grande river west of the city of El Paso, through the cities of El Paso and San Antonio to Houston, Tex.; that on said date it operated passenger trains over said line between the places aforesaid; and that on said date it operated its passenger train No. 10, which was equipped with passenger coaches. The defendant also admitted, and the court concludes as a fact, that said train No. 10 also carried Pullman sleeping cars, and that a negro or negroes rode in said Pullman tourist car No. 3197 from a point outside of the state of Texas to San Antonio, Tex.
“(2) The court concludes from the evidence that the negro passengers in said Pullman tourist ear No. 3197 consisted of a woman and three children, who took passage from San Francisco, Oal., and a man, who took passage from Uos Angeles, Oal., said passengers having both sleeping car and railway transportation from said points into and through the state of Texas, and to points in other states beyond the state of Texas.
“(3) That said train No. 10 was a through interstate train, moving in continuous transit from San Francisco, Oal., through the states of California, Arizona, New Mexico, Texas, and Louisiana to the city of New Orleans, La., over the railway line of the Southern Pacific Railway Company to the Rio Grande at a point about four miles west of the city of El Paso, and over the line of the Galveston, Harrisburg & San Antonio Railway Company from said Rio Grande river to Houston, Tex., and over the line of the Texas & New Orleans Railway Company to the Texas state line, and over the line of the Louisiana Western Railway Company to Lafayette, La., and thence over the line of Morgan’s Louisiana & Texas Railway & Steamship Company to New Orleans, La., and that said Pullman tourist sleeper No. 3197, in which said colored passengers were transported .from San Francisco and Los Angeles, respectively, was a through interstate sleeping car, moving in said train from San Francisco, Cal., over said railway lines to New Orleans, La.
“(4) That there were no separate compartments for the white and colored races in said sleeping car.
“(5) That defendant’s said train No. 10 from the Rio Grande river to San Antonio was provided with coaches which were divided into separate compartments for the White and colored races, other than said Pullman tourist car No. 3197.”

In addition to the facts found by the court, it was alleged by the plaintiff, and admitted by the defendants that there were several other sleeping cars in the train referred to, but the evidence fails to show whether or not any of the other sleeping cars were set apart and marked for the different races. It was also shown that the Pullman company had its own conductor in charge of the Pullman coaches, who collected the fares for that company from passengers riding in sleeping coaches, and who did not collect any fares for the railroad company. In fact, the testimony indicates a similar state of facts to those involved in Commonwealth v. Railway Co., 141 Ky. 502, 133 S. W. 1158, 32 L. R. A. (N. S.) 801, which will hereafter be referred to.

Opinion.

The state brought this suit to recover penalties prescribed by the act of 1907, now incorporated in the Revised Statutes of 1911 from articles 6746 to 6753, inclusive; and from a judgment in favor of the defendant railway company, the state has appealed. The law referred to was enacted for the purpose of requiring common carriers of passengers in this state to provide separate coaches or compartments for the accommodation of white and negro passengers, equal in all points of comfort and convenience. It prescribes a penalty against the carrier, recoverable by the state; for a failure of the carrier to provide such separate coaches or compartments makes it the duty of the conductor to enforce the provisions of the statute, and fixes a penalty against him for knowingly failing to do- so, as well as a penalty against any passenger riding in any coach or compartment not designated for his race, after having been forbidden to do so by the conductor. The latter provisions prescribing penalties against conductors and passengers for breaching the statute are incorporated in the Penal Code, and not in the Revised Statutes. The statute does not assess a pecuniáry penalty against the carrier for failing to compel members of each race to ride in coaches or compartments provided for such race, but the only penalty prescribed against the carrier is for a failure to furnish separate coaches and compartments. If the carrier furnishes the accommodations referred to, so that the races may be separated, no penalty can be recovered from it, although a passenger may subject himself to a penalty by riding where he is not entitled to, and the conductor may also be subject to a penalty for permitting him to do so.

It requires no citation of authorities to support the proposition that, whenever the government seeks to recover a penalty for the violation of a statute, the proof must show with a reasonable degree of certainty that the statute has been violated by the defendant from whom the penalty is sought to be recovered. So in this case the burden rested upon the state to sho.w that on the occasion referred to the defendant, while operating the train in question within the borders of this state, failed to provide separate coaches or compartments for the accommodation of the white and negro passengers, equal in all points of comfort and convenience. The record fails to show a discharge of that burden. The proof that white and negro passengers occupied together a particular Pullman coach was not sufficient to show that the other sleeping coaches in the train were not so arranged and marked and designated as to provide separate accommodations of equal comfort and convenience for each of the two races.

It is contended by counsel for the railway company, not denied by counsel for the state, and seems to be held by the weight of authority that statutes providing for the separation of the two races have no application to the rights of interstate passengers; and therefore it would seem that on the occasion in question neither the defendant nor the conductor in charge of its train had any right to compel the colored passengers to leave the coach in which they were riding and go into another, even though equal in point of comfort and convenience. Piall v. De Guir, 95 U. S. 485, 24 L. Ed. 547; McCabe v. Railway, 186 Fed. 966, 109 C.C. A. 110; Thompkins v. M., K. & T. Ry., 211 Fed. 391, 12S O. O. A. 1, 52 L. R. A. (N. S.) 791; State ex rel. Abbott v. Hicks, 44 La. Ann. 770, 11 South. 74; Hart v. State, 100 Md. 595, 60 Atl. 457; Anderson v. L. & N. Ry. (C. O.) 62 Fed. 46.

But, if it be conceded that the defendant’s conductor had such authority, his failure to exercise it might subject him to a penalty, but would not render the defendant liable. So, if it be conceded that the statute under consideration was intended to apply to Pullman coaches, then in order for the state to recover a penalty it should have been shown that the other Pullman coaches in the train referred to were not equipped in the manner prescribed by the statute. If the Pullman and day coaches were so equipped, then no penalty could be recovered from the defendant company. The defendant, without making any proof concerning the other coaches, showed that the day coaches were equipped in the manner prescribed by the statute; but in this proceeding to recover a penalty we do not feel authorized, from the fact that it made that proof and made no proof as to the condition of the other sleeping cars, to infer that the latter were not so equipped. The burden rested upon the state to make that proof, and we do not feel justified in holding that that burden was shifted to the defendants to show compliance with the statute in reference to such other coaches.

If on the occasion here involved the train contained other Pullman cars equipped, designated, and marked as required by the statute sufficient to accommodate the public, then the fact that Pullman car No. 3197 was not so equipped, designated, and marked would not render the defendant liable for the statutory penalty, even if it did not have the right to ignore the statute as to interstate traffic, as held by some of the cases cited above. But there is another feature of this case.

In Commonwealth v. Illinois Cent. By. Co., 141 Ky. 502, 133 S. W. 115S, 32 L. R. A. (N. S.) 801, the Supreme Court of Kentucky in construing a statute quite similar to ours, made the following rulings:

“A Pullman sleeping car controlled wholly by servants of the Pullman Company, and the fares in which were exclusively received by that company, where it does not appear that the carrier was paid anything by the Pullman Company for handling the sleeper, the only benefit it presumably derived therefor being the inducement for an increased travel, was not operated by the carrier to whom it was delivered for transportation within Kentucky Statutes, § 795 (Russell’s St. § 5343), and the carrier, not being required to furnish sleeping cars under the act, was not liable thereunder for hauling the sleeper. which contained no separate compartments for white and colored passengers or for failure to require a colored passenger therein to enter the compartment of the separate day coach set aside for his race, where he had provided himself before reaching the state with a ticket entitling him to ride in the sleeper, and was a passenger thereof when the sleeper was attached to the carrier’s train, and also held a ticket entitling him to be carried through the state upon the carrier’s train to which the sleeper was attached. The carrier, having furnished day coaches with the prescribed separate compartments for the white and colored races, and having properly labeled them, even if it were the duty of the conductor of the train to require the colored person to leave the sleeper and take the colored compartment in the day coach, would not be liable under Kentucky Statutes, § 795 (Rus-
sell’s St. § 5343), for his failure to do so; such-failure being an offense of the conductor.”

The instant case is quite similar to the one dealt with by the Kentucky court; and, if it were necessary to so decide in order to support the judgment, we are strongly inclined to the view that our statute should be given the same construction, and that it should be held upon a similar state of facts, as was held in that case, that the railroad company was not operating the Pullman sleeping car within the purview of the statute. In this case whether or not the penalty could be recovered from the Pullman Company is not involved, and we express no opinion upon it.

After due consideration of the case, in the light of able briefs filed by counsel representing the respective parties, our conclusion is that the trial court rendered the proper judgment, which should be affirmed; and it is so ordered.

Affirmed.
      cgsaFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: JENKINS, J.

text:
    INTERNATIONAL & G. N. RY. CO. v. VOGEL.
    (No. 5564.)
    (Court of Civil Appeals of Texas. Austin.
    Jan. 19, 1916.
    Rehearing Denied March 1, 1916.)
    1. Raileoads &wkey;>407 — Injuries to Animals Near Tracks — Repairs.
    While a railroad company is not liable for damages occasioned by animals becoming frightened from the repairs being made at a cattle guard alongside a public road, it is liable when its servants, notwithstanding the animals showed fright, continued to push a hand car towards them.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1402, 1403; Dec. Dig. &wkey;407.]
    2. Railroads <&wkey;446(12) — Injuries to Animals Near Tracks — Actions—Jury Question.
    In an action for injuries to horses being driven along a road, which were hurt in crossing a cattle guard, the question whether the owner was guilty of contributory negligence in driving them loose held for the jury.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 1639; Dec. Dig. &wkey;446(12).]
    3. Appeal and Error <§=31003 — Review — Verdict.
    On appeal a verdict cannot be disturbed because against the greater preponderance of the evidence.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3938-3943; Dec. Dig. <&wkey;> 1003.]
    4. Trial <&wkey;251(3) — Instructions — Pleading.
    Where contributory negligence of plaintiff was not pleaded, the matter should not be submitted in the charge.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 590; Dec. Dig.' <&wkey;251(3).]
    5. Appeal and Error &wkey;>1068(5) — Harmless Error — Instructions—Refusal.
    Where it was claimed that plaintiff’s horses, which were being driven along a road near a railroad crossing, were frightened by employés of the company, and, running across a cattle guard, received injuries, and under the instructions the jury could not have found against defendant unless its employés were near the road pushing a hand car, the refusal of a charge that if defendant’s employés were not near the road there could be no recovery was not error.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4230; Dee. Dig. <&wkey; 1068(5).]
    6. Railroads <&wkey;439(4) — Injuries to Animals on Tracks — Pleading—Sufficiency.
    Where the petition alleged that a railroad company’s employés were operating a hand car near a crossing-, that from the point where they were working they might, by the exercise of reasonable care, have seen plaintiff’s horses approaching the crossing, and that, though the horses took fright, they continued to push the ear towards them, it raised the issue of discovered peril.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 1562; Dec. Dig. &wkey;439(4).]
    7. Railroads &wkey;446(8) — Injuries to Animals -on Tracks Detective Cattle Guard.
    , As a railroad company is bound, under Rev. St. 1911, arts. 6596-6600, to erect proper cattle guards, the question whether cattle guards over which plaintiff’s horses passed were sufficient to turn animals, it being contended that the horses were frightened and ran upon the cattle guard, the first one getting past and the others not doing so, was properly submitted to the jury.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 1635; Dec. Dig. &wkey;446(S).]
    8. Railroads <&wkey;440 — Injury to Animals— Proof — Variance.
    Where the petition averred that plaintiff’s horses being driven down, the road were frightened by the operation of a hand car, proof that the car was technically a push car which was being shoved by the railroad company’s servants does not constitute a variance.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1570-1574; Dec. Dig. &wkey;440.]
    9. Appeal and Error <&wkey;742(4) — Assignments oe Error — Statement.
    Under an assignment complaining that in an action for injuries to horses which took fright and ran over a cattle guard the court erred in admitting evidence as to the operation of a railroad push car in the vicinity, a statement concerning evidence showing that the railroad company’s employés were making some noise working on the cattle guard is not germane to the assignment.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. <&wkey;>742(4).]
    Appeal from District Court, Comal County; Frank F. Roberts, Judge.
    Action by Albert Vogel against the International &■ Great Northern Railway Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Fisher & Fisher and Robt. L. Thompson, all of Austin, for appellant. Henne & Fuchs, of New Braunfels, for appellee.
   JENKINS, J.

Appellee was the owner of some horses that were not broken to harness or the saddle, but otherwise were not wild. He sent them in the care of two negroes to water, one of the negroes was riding and was leading a mare which the other horses followed, and the other negro was in the rear driving them. The road in which the horses were crossed the track of appellant’s railway. 'Appellant’s employés were repairing a cattle guard on the south side of the road. In passing this place the horses became frightened and ran across the cattle guard on the north side of the road and were injured by spikes in the rails of the cattle guard. The grounds of negligence alleged were the improper condition of the cattle guard and that appellant’s employés by pushing a hand car towards the horses, frightened them, and that they continued to push said car after they discovered the presence of the horses, and that they had become frightened.

Appellant’s first proposition under its first assignment of error is that the court erred in refusing to peremptorily instruct a verdict for appellant, because there was no evidence that its employés engaged in repairing the cattle guard alongside a public road were doing so in an unusual and extraordinary manner, or that they were making any unusual or extraordinary noise while doing so. It is not alleged that the injury occurred by reason of any unusual noise being made in repairing the road, but by reason of the horses becoming frightened at the operation of a hand car. It is true that a railroad company has a legal right to repair its roadbed, and that it is not liable for damages occasioned by animals becoming frightened thereby, when the same is done in the usual and ordinary manner, unless the employés knew, or had reasonable grounds for believing that their acts would have such effect. Pasture Co. v. Railway Co., 41 S. W. 190; Railway Co. v. Graham, 46 Tex. Civ. App. 98, 101 S. W. 847. Appellee alleged that the fact that the horses had become frightened was discovered by appellant’s employés, notwithstanding which they continued to push the hand car towards the horses. The evidence was sufficient to require this issue to be submitted to the jury; hence the court did not err in refusing to peremptorily instruct a verdict for appellant.

Appellant submits the further proposition under its first assignment of error that the court should have instructed a verdict for it, because the evidence shows that the animals were injured by reason of their “becoming wild and unmanageable through fright or excitement”; and also that it was contributory negligence on the part of appellee to have such animals driven along the road. The allegation of appellee is that such animals became “wild and unmanageable through fright on account of the negligent acts of appellant.” The evidence is not such as that we can say, as a matter of law, that it was negligence in appellee to have said horses driven along said road in the manner in which he did. On the contrary, the -evidence shows, as is necessarily implied from the finding of the jury, that appellee was not negligent in this regard. The second assignment of error also relates to the refusal of the court to peremptorily instruct a verdict for appellant, and is overruled for the reasons above stated.

The third assignment is that the court erred in refusing to. grant a new trial, because the verdict is against the “greater preponderance of the evidence.” If this is true it affords no ground for reversal by this court.

The fourth assignment is that the court should have granted a new trial because:

“There was no evidence from which the jury could infer that plaintiff’s horses were caused to be frightened and thereby sustain injury as the proximate result of the presence and negligent operation of a hand car; but, on the contrary, the evidence indisputably shows that if plaintiff’s horses sustained any damage, the same was directly and proximately due to their fixed propensities and not to any acts attributable to the defendant.”

What we have said in a previous portion of this opinion disposes of this assignment.

The fifth assignment of error is as to the refusal of the court to submit a requested charge on contributory negligence. Contributory negligence was not pleaded by appellant. The only negligence on the part of appellee suggested by the evidence is in ap-pellee’s servants driving the horses back over the cattle guard.

The court, at the instance of appellant, gave the following special charge:

“In this ease you are charged that if from the evidence you find that plaintiff’s employés drove or caused to be driven plaintiff’s horses across the cattle guard, and such acts, if any, produced injuries from which said horses or some of them died as the direct and proximate result, you will return a verdict for defendant, regardless of every other issue which may be submitted to you.”

The sixth assignment of error is as to the refusal of the court to give special charge No. 10, as follows:

“In this case you are charged that if from the evidence you find .that defendant’s servants and employés were not present at or near the crossing at the time plaintiff’s horses came thereon, you will return a verdict for defendant, regardless of every other issue that may be submitted to you.”

Appellant’s testimony was to the effect that its employés had left the cattle guard and were some 500 yards distant therefrom when the horses ran across the same. Under the charge of the court the jury could not have found for appellee without finding that this was not true, but that appellant’s employés did as alleged, and they could not have done so without being at or near the cattle guard. Hence we overrule said assignment.

The seventh, eighth, and ninth assignments of error relate to the issue of discovered peril. Appellee alleged that appellant’s employés—

“were operating a hand car on the south side of the crossing, and that defendant’s servants from the point where they were working and pushing said car, as alleged above, could see, and by the use of reasonable care could have seen and actually did see, the horses of plaintiff as they were approaching said crossing.”

The testimony upon the part of appellee sustains this allegation; and the charge of the court having fairly submitted this issue to the jury, the assignments above referred to are overruled. Railway Co. v. Belew, 22 Tex. Civ. App. 264, 54 S. W. 1079; Railway Co. v. Beard, 42 Tex. Civ. App. 427, 93 S. W. 532; Johnson v. Railway Co., 45 Tex. Civ. App. 146, 100 S. W. 206.

The tenth assignment is based upon the proposition that there was no evidence raising the issue of discovered peril which, as above stated, is not sustained by the record.

The eleventh assignment of error complains of the action of the court in giving special instruction No. 1, to the effect that if “the cattle guard over which said horses did run was defective, or was so constructed that it would not turn horses and cattle of ordinary disposition and docility,” etc. The evidence shows that the cattle guard had spikes down the center, but that upon each side there was a space without spikes, wide enough for a horse to cross without injury. The evidence indicates that the first horse to cross did so without injury, but that others attempting to follow crowded each other and' were forced upon the spikes. The statute requires railroad companies to erect proper cattle guards, and failure to do so renders a railroad company liable for all injuries approximately caused by such failure. Arts. 6596-6600, Rev. Stat.; Sainé v. Railway Co., 85 S. W. 487. It was proper under the allegations and evidence in this ease to submit to the jury the issue as to whether or not the cattle guard was properly constructed, and, if not, whether the failure to so construct the same was the proximate cause of the injury.

Appellant insists that the evidence is insufficient in this case to require the submission of the issue as to the horses being frightened by the operation of a “hand car,” for the reason that the evidence shows that the car being operated by appellant’s em-ployés was a push car. Technically speaking, a push car and a hand car are different cars. If this had been a suit upon a con-' tract to furnish a hand car, and the evidence had shown that a push car had been furnished, the variance would have been fatal; but we do not think in a ease of this kind the technical definitions “hand car” or “push car” are material. The object of pleading is to notify the opposite party of the facts expected to be proven. In this connection it is evident that testimony would be offered to show that a car was being operated by hand near the cattle guard in such a manner as to frighten appellee’s horses. The evidence shows that this was in fact a “push car,” and was being pushed; along the track by appellant’s employés. It was in one sense a hand car, in that it was operated by hand, and we do not think that appellant could have been misled by the allegation that it was a hand car. >

The statement under appellant’s thirteenth assignment of error is a copy of the bill of exception as to the testimony showing that the appellant’s employés were making some noise in working on the cattle guard. The assignment is:

“The court erred in admitting over the objections and exceptions of defendant evidence as to the operation and movement of a push car at or in the vicinity where plaintiff's horses are alleged to have taken fright.”

The statement has no application to the assignment.

Finding no error in the record, the judgment of the trial court is affirmed.

Affirmed.
      ©ssFor other cases see same topic and KEY-NUMBJ3R in all Key-Numbered Digests and Indexes

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


author: HENDRICKS, J.

text:
    QUANAH, A. & P. RY. CO. v. WARREN.
    (No. 911.)
    (Court of Civil Appeals of Texas. Amarillo.
    Jan. 26, 1916.
    Rehearing Denied March 1, 1916.)
    1. Caebiers <&wkey;20(6) — Discrimination oe Delay in Transportation — Statutory Provisions — ‘‘Unjust Discrimination.”
    Rev. St. 1911, art. 6670, subd. 1, provides that it shall be an unjust discrimination for any railroad to give any undue or unreasonable preference or advantage to any person, company, etc. Subdivision 2lprovides that every railroad company which shall, under such regulations as may be prescribed by the railroad commissioners, fail or refuse to transport and deliver without delay or discrimination any passengers, tonnage, or cars destined to any point on or over the line of any connecting railroad shall be guilty of unjust discrimination. Article 6671 provides that any railroad doing or permitting anything thereby prohibited or declared unlawful, or omitting any act therein required to be done, shall be liable for the damages sustained, and, in case of extortion or discrimination, for a penalty of not less than $125. Held, that if no regulations are adopted by the Railroad Commission, the penalty for failure to deliver freight to a connecting carrier without delay nevertheless accrues, but is governed by subdivision 1 and not by subdivision 2.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 41; Dec. Dig. <&wkey;20(6).
    For other definitions, see Words and Phrases, First and Second Series, Unjust Discrimination.]
    2. Carriers <&wkey;20(6) — Discrimination or Delay in Transportation — Statutory Provisions — * ‘Delay. ’ ’
    As used in Rev. St. 1911, arts. 6670 and 6671, relative to the failure or refusal of any railroad company to deliver without delay, freight destined to a point on the line of any connecting railroad, “delay” means discrimination; and, where delay is shown, a party is entitled to recover the statutory penalty.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 41; Dec. Dig. &wkey;>20'(6).
    For other definitions, see Words and Phrases, First and Second Series, Delay.]
    5. Carriers <&wkey;20(6) — Penalties for Violation oe Statute — Right to Recover.
    Where plaintiff, suing a carrier for damages and a penalty, alleged that the carrier’s refusal to deliver a shipment to a connecting carrier without delay was in. violation of Rev. St. 1911, art. 6670, and in further violation of an order of the Railroad Commission, regulating the transportation, delivery, and interchanging of freight, the regulation of the Railroad Commission constituted an essential element of the recovery; and, .where the Commission’s order or regulation was not shown, a judgment for plaintiff was unwarranted.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 41;. Dec. Dig. &wkey;>20(6).]
    4.'Carriers <&wkey;185(3) — Through Shipments —Evidence.
    Rev. St. 1911, art. 731, provides that common carriers over whose lines any freight received by either of such carriers for through shipment on a contract for through carriage, recognized, acquiesced in, or acted upon by them, shall be considered connecting lines, and deemed and held the agents of each other, and deemed to be under a contract with each other and with the shipper for the through transportation of the property. Held, that a receipt issued by a carrier, acknowledging the receipt of goods subject to the conditions of a bill of lading and disclosing that the bill of lading was issued at the initial station of shipment, and that the destination of the goods was a point on the lines of a connecting railroad, did not tend to show that the shipment was a through shipment.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 848-850; Dec. Dig. &wkey;185(3)J
    5. Carriers &wkey;>174 — Performance oe Contract oe Transportation — Connecting Carriers.
    In the absence of a special contract or course of business to the contrary, an initial carrier, or an intermediate connecting carrier, is bound only to safely carry and deliver the shipment to the next-carrier.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 747-765; Dec. Dig. &wkey;>174.]
    6 Carreers <&wkey;185(3) — Through Shipments —Evidence.
    Under Rev. St. 1911, art. 731, relative to the liability of connecting carriers in case-of a through shipment, there must be something more than the mere receipt and transportation of goods or property to show a contract for through shipment.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 848-850; Dec. Dig. &wkey;185(3).]
    7. Carriers <&wkey;20(6) — Discrimination or Delay in Transportation — Statutory Provisions.
    Under Rev. St. 1911, arts. 6670, 6671, a carrier, delaying or refusing -to deliver a shipment, destined to a point on the line of a connecting harrier, to such connecting carrier, is liable for the damages sustained and the statutory penalty, though the shipment is not under a contract for through shipment.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 41; Dec. Dig. <i&wkey;20 (6).]
    8. Carriers <&wkey;20(6) — Discrimination and Delay in Transportation — Damages.
    Under Rev. St. 1911, arts. 6670- and 6671, requiring a carrier to transport and deliver without delay or discrimination freight destined to any point on or over the line of any connecting railroad under regulations prescribed by the Railroad Commission, and article 6671, making carriers failing to comply therewith liable for damages sustained and a penalty, the Commission has no power to prescribe the damages recoverable.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 41; Dec. Dig. <&wkey;20(6).]
    9. Carriers <&wkey;2 — Discrimination or Delay in Transportation — Statutory Peovisons.
    Rev. St. 1911, art. 6679, making it an unlawful discrimination for railroads, under such regulations as may be prescribed by the Railroad Commission, to refuse and fail to transport and deliver without delay or discrimination passengers, tonnage, or cars destined to any. point on or over the lines of any connecting railroad, is constitutional.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 4, 5; Dec. Dig. <@=>2.]
    Appeal from Motley County Court; C. B. Whitten, Judge.
    Action by C. W. Warren against the Quan-ah, Acme & Pacific Railway Company. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    D. E. Decker, of Quanah, and G. E. Hamilton, of Matador, for appellant. T. T. Boul-din, of Matador, for appellee.
   HENDRICKS, J.

The appellee, Warren, sued the appellant railway company, to recover damages for delay in failing to deliver merchandise on its line of railroad to the Motley County Railway Company, at Matador Junction, the point of intersection. Appellee alleged that he was a merchant and bought a bill of goods from Butler Bros, at Dallas, Tex., and that he contracted with the Santa Fé Railway Company, as the initial carrier, at that place, to transport said merchandise from Dallas to Matador, Tex., on a through rate of freight and through transportation; that the Santa Fé transported from Dallas to Ft. Worth, delivering the same to the Ft. Worth & Denver City, which road transported the goods to Quanah, and from which place the Quanah, Acme & Pacific, the defendant herein, as connecting carrier, transported the same to Roaring Springs, the terminus of such carrier, and there held the goods from the 27th to 31st day of August, 1914, refusing to make delivery to its connecting carrier, the Motley County Railway Company at Matador Junction. Appellee alleged:

“That defendant, in refusing to deliver said merchandise to the Motley County Railway, and in carrying the same to Roaring Springs, and there holding the same, did so in violation' of articles 6670 and 6671 of the Revised Civil Statutes, * * * defining unjust discrimination and providing a penalty therefor; and in further violation of an order of the Raih’oad Commission of the state of Texas, regulating the transportation, delivery, and interchanging of freight between carriers, being circular No. 199, which went into effect January 27, 1896, and which has continued in full force and effect since that date.”

The case was tried by the court without a jury, who rendered judgment for $1 damages and $125 as a penalty on account of alleged unjust discrimination.

Appellant’s first assignment of error, in connection with its first proposition, urges 'that subdivision 2 of article 6670, Revised Statutes 1911, and not subdivision 1, governs this action for unjust discrimination for delay referable to a connecting carrier, and it is necessary to show a violation of a rule and regulation of the Railroad Commission of Texas before a penalty may be recovered under article 6671. This assignment will have to be sustained, possibly for a different reason than adduced by appellant, though covered by the assignment. As clearly pointed out in Quanah, Acme & Pacific Ry. Co. v. Jones Lumber Co., 178 S. W. 858, in following the case of Inman v. Ry. Co., 14 Tex. Civ. App. 39, 37 S. W. 37 (writ of error denied), if regulations were not adopted by the Commission under subdivision 2, art. 6670, the penalty would accrue where the statute is violated just the same; but if there were regulations—

“the question as to whether or not there was such a refusal as to incur the penalty would be determined from the consideration of them, as-well as of the statute.”

Subdivision 2, under article 6670, prescribes, that:

“Every railroad company which shall fail or refuse, under such regulations as may be prescribed by the Commission, to receive and transport without delay * * * the passengers* tonnage and cars, loaded or empty, of any connecting line of railroad, and every railroad, which shall, under such regulations as may be prescribed by the Commission, fail or refuse * * * to deliver without delay * * * destined to any point on or over the line of any connecting line of railroad, shall be deemed guilty of unjust discrimination.”

The word “delay” in the above articles-means discrimination, and where delay is-shown, a party is entitled to recover the penalty. Gulf, Col. & Santa Fe Ry. Co. v. Lone Star Salt Go., 26 Tex. Civ. App. 531, 63 S. W. 1026 (writ of error denied).

However, under the statute, and in view of the allegations of plaintiff’s petition, It is very evident that the regulations of circular No. 199, promulgated by the Commission, alleged by the plaintiff and forming a part of' the basis of its recovery, in this instance enters into the suit as an essential element of recovery. In the case of Quanah, Acme & Pacific v. Jones Lumber Co., supra, it was-shown that a circular was applicable only to carload lots, and the shipment was one less than carload lots. This record is devoid of circular 199, which plaintiff pleads that defendant violated, regulating the transportation, delivery, and interchanging of freight between connecting carriers. A part of the basis of plaintiff’s cause of action not having been shown, the judgment was unwarranted. This court adheres to its ruling that if there is no regulation embracing matters of this kind, subdivision 1, under article-6670, in connection with article 6671, would control.

There is tendered, between appellant and appellee, the question of through shipment and through transportation, applicable to this récord as a predicate for recovery. The plaintiff did not show a contract of through shipment. The receipt forwarded by the consignor to the consignee does not exhibit, nor tend to prove, a contract of through shipment. Again, this receipt states that the goods were “received in good order, from Butler Bros., subject to the conditions of this company’s bill of lading.” What constitutes the company’s bill of lading, which we assume is the real contract between the parties, is not attempted to be shown. The fact that this receipt discloses that it may have

been issued in Dallas, the initial station of shipment, and the consignee is O. W. Warren, with the destination of the goods as Matador, would not tend to show the through shipment. Goods have to be marked for destination for the benefit of connecting carriers. In the absence of a special contract, or course of business shown to the contrary, an initial carrier, or an intermediate connecting carrier, is bound only to safely carry and deliver to the next carrier. Hunter v. Railway Co., 76 Tex. 195, 13 S. W. 190; Railway Co. v. Jackson, 99 Tex. 347, 89 S. W. 968; Railway Co. v. Brown & Williamson, 99 Tex. 349, 89 S. W. 971; McCarn v. Railway Co., 84 Tex. 358, 19 S. W. 547, 16 L. R. A. 39, 31 Am. St. Rep. 51. Justice Stayton, in the latter case, quotes the language of the Supreme Court of the United States, Myrick v. Railway Co., 107 U. S. 106, 1 Sup. Ct. 425, 27 L. Ed. 325:

“That each road, confining itself to its common-law liability, is only bound, in'the absence of a special contract, to safely carry over its own route and safely to deliver to the next connecting carrier. * * • ”

Neither do we think that the receipt of H. D. Bishop, the agent at Roaring Springs, which was delivered to Warren by. the Motley County Railway Company, tended to prove the through shipment. Article 331a, now 731, does not assist the appellee in any manner. Galveston, H. & S. A. Ry. Co. v. Jones, 104 Tex. 96, 134 S. W. 328. There must be shown something more than receiving and transporting the goods or property under that article to show a contract for through shipment. Same case, supra. The receipts are mere isolated facts.

However, we do not understand that a contract for through shipment, as against the act complained of, would have to be shown to fasten liability. The cause of action here is predicated upon the refusal and failure, willfully manifested, by the Quanah, Acme & Pacific Railway Company to deliver to its connecting carrier, the Motley County Railway Company, the freight in question. The delay and discrimination that carrier is guilty of, and not the delay and discrimination of some other connecting carrier, is the question here. Under the law, it was required to transport and deliver to a connecting carrier, and though a through contract is not shown, but if performed in a manner constituting the delay and discrimination in violation of the statute, the damages and penalty would attach. Its own act is what is complained of.

Plaintiff pleads the violation of circular No. 199. The defendant pleads another circular issued by the Railroad Commission, November 19, 1907. This latter circular seems to be applicable to shipments in less than carload lots, with a graduated penalty embraced therein by the Commission, based upon weight, and extending to the connecting carrier 48 hours additional time at junction

points, if necessary to rehandle the ship•ment. Article 6671, in the event of delay and discrimination, entitled the shipper aggrieved, to “damages sustained in consequence of such violation,” besides the penalty in addition thereto. We do not think that the Commission has the right, in this character of action, to prescribe the “damages sustained,” and think that the Legislature evidently did not intend to give such power. These goods arrived at Roaring Springs August 27, 1915, and were not delivered to the connecting carrier until August 31st. Appellant says that the record shows that the Commission’s order pleaded by it was complied with 'in reference to the time at junction points. We do not think so. A part of Thursday, all of Friday and Saturday, is longer than the time prescribed. The fact that it did not run a daily freight would be no excuse in failing to take the freight back to the junction.

We dislike to reverse this case on the technicality involved, but judicially we are unable to tell which regulation would be applicable to this shipment; plaintiff pleads one and does not prove it; defendant interposes another and fails to exhibit it as applicable as a proper defense. The act is constitutional. Reversed and remanded.
      ©c^jPor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: CARL, J.

text:
    HEARD et al. v. BOWEN et al.
    (No. 5577.)

    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 19, 1916.
    On Motion for Rehearing, March 15, 1916.)
    1. Easements <@=>36(3)—Adverse Possession —Evidence.
    Evidence held sufficient to show that plaintiffs acquired an easement or prescriptive right of way over defendant’s property by adverse possession.
    [Ed. Note.—Por other cases, see Easements, Cent. Dig. §§ 77, 78, 88, 93; Dec. Dig. <@=>
    2. Easements <@=>36(2)—Prescription—Evi-dence.
    While parol evidence showing a verbal gift of a right of way is not admissible to establish an easement, it is admissible to show that one using such easement did so adversely.
    [Ed. Note.—For other cases, Cent. Dig. §§ 77, 78, 88, 90-92; 36(2).]
    see Easements, Dec. Dig. <@=>
    3. Adverse Possession <@=>106(1) — Adverse Title—Validity.
    A limitation title when it matures is as good as any other title.
    [Ed. Note.—For other cases, see Adverse Possession, Cent. Dig. §§ 604, 619-623; Dee. Dig. <@=>106(1).]
    4. Vendor and Purchaser <@=>239(1)—Bona Eide Purchaser—Recordation of Instruments—Prescriptive Easements.
    As the recording laws make no provision for the recordation of adverse titles or easements acquired by adverse possession, a purchaser of land across which such an easement had been acquired cannot defeat the easement on the ground that he was an innocent purchaser and the records did not show the easement.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Gent. Dig. § 589; Dec. Dig. <@=> 239(1).]
    5. Appeal and Error <@=>499(4) — Assignments oe Error — Sufficiency — Exceptions.
    Where the bills of exception complaining of the overruling of objections to charges and the denial of special requests did not show when the objections were made or the requests offered, or that the court’s attention was called to the matter before the main charge was given, assignments based thereon will not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2298; Dee. Dig. <@==>499(4).]
    On Motion for Rehearing.
    6. Appeal and Error <@=>742(5) — Assignments oe Error — Statements.
    An assignment based on the charge on the ground that there was no evidence to support it need not be considered, where the statement did not set out the evidence.
    [Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. <@=>742(5).]
    7. Easements <@=S(2,3) — Prescriptive Rights — Adverse Use.
    Where a verbal way over land is granted, possession under such grant is adverse; the verbal grant being void under the statute of frauds.
    [Ed. Note. — For other cases, see Easements, Gent. Dig. §§ 24, 27-33; Dec. Dig. <@=>8(2,3).]
    8. Appeal and Error <@=>1033(5) — Review-Harmless Error — Instructions.
    Where the court might properly have instructed the jury that plaintiffs’ holding was adverse, defendants cannot complain of an instruction on that issue; the jury having found that plaintiffs’ holding was adverse and that they had acquired a prescriptive way.
    [Ed. Note. — For other cases, see Appeal and Error, Gent. Dig. § 4056; Dee. Dig. <@=> 1033(5).]
    9. Appeal and Error <@=>216(2) — Presentation oe 'Grounds oe Review in Court Below — Necessity.
    Where the court properly submitted a question of fact to the jury, a party who requested no 'instructions supplying omissions ini the charge given and made no objections cannot complain of such omissions on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. <@=>216(2); Trial, Cent. Dig. §§ 628, 630-641.]
    10. Easements <@=>3(2) — Prescriptive Easements — Acquisition.
    Though plaintiffs’ property was separated from a right of way by an alley, they may, having held the way adversely, claim it as a prescriptive easement appurtenant to their lands.
    [Ed. Note. — For other cases, see Easements, Gent. Dig. § 10; Dec. Dig. <@=>3(2)J
    Appeal from District Court, Bexar County ; W. F. Ezell, Judge.
    Action by Francis J. Bowen and others against A. B. Heard and another, who im-pleaded John D. Sipple, on whose death pending suit the cross-action was revived against Tracy D. Sipple, independent executrix. From a judgment for plaintiffs and a judgment over for the first-named defendants against the cross-defendant, all defendants appeal.
    Affirmed.
    Haltom & Haltom, of San Antonio, for ap-. pellants. Joe H. H. Graham, of San Antonio, for appellees.

      Application for writ of error pending in Supreme Court.

   CARL, J.

Appellees, Francis J. Bowen

and his wife, Eleanor M. Bowen, Mrs. Mary Gaenslen, a widow, Fred B. Gaenslen and Neva Gaenslen, his wife, sued appellants, A. B. Heard and his wife, Julia D. Heard, to establish a certain easement or prescriptive right in, and to open, a certain street or roadway in South Heights in the city of San Antonio. Appellants answered, and, after denying the allegations, alleged by way of plea over that they bought said property from John D. Sipple, who warranted the title, and since he had died after suit was filed and after he was made a party, his wife, Tracy D. Sipple, Independent executrix of John D. Sipple’s estate, was made a party defendant on said cross-action. In a trial before a jury, a verdict was returned in favor of the plaintiffs, and in favor of the original defendants against Tracy D. Sipple as independent executrix of the estate of John D.-Sipple, deceased, for $220, and judgment was entered accordingly. The original defendants and Mrs. Sipple have appealed.

The first and second assignments of error assert that adverse possession and user are not shown because the proof shows that appellees. were using the property with the consent of the then owners and not adversely to the owners. This is based upon the fact that the evidence shows that about 1,S92 appellees obtained from the Denver & San Antonio Investment Company, which owned the property at that time, permission to have water pipes laid over the property. The water company, it seems, had a rule forbidding the laying of pipes to supply water unless the appellants owned the land over which the pipes would pass. Appellees testified that they conferred with the investment company and obtained a grant or declaration of entrance over the property. They “granted and conceded the right to use that road or street.” The evidence proceeds:

“I think that they (the investment company) put it in writing, but the waterworks company were not able to find the written document. I did not get any writing; in those early days they did not attend so closely to getting things in black and white as they do to-day. We got a right to use the road, and used it continuously after that. I located iny house according to the street and the extension agreed upon, because I thought that would be a satisfactory and good location.”

The evidence shows that only the Bowen family lived on block 98, and the road or street was used by them and their friends calling, trades people, etc., having business with them, for the road or street passed into their property. This road or street was used continuously by them from about the fall of 1892 until Heard ran a fence across it in 1910. The evidence taken as a whole is suf-ücient to support the finding that appellees were using the road under a claim of right, and that the owners at the time recognized that right and conceded it when they gave the instrument with reference to the laying of the water pipes. The proposition made is that, in order to establish an easement by prescription, there must be a claim to the right of way adverse to that of the owner of the soil, expressly or impliedly known to the owner of the soil. The testimony is sufficient to show that they were using under claim of right the street at that time, and, while parol evidence showing a verbal gift or concession is not admissible to establish an easement in the property, it is admissible for the purpose of showing that the possession was adverse. Shepard v. G., H. & S. A. Ry. Co., 2 Tex. Civ. App. 535, 22 S. W. 267. This question was again passed . upon in Smith v. Guinn et ah, 131 S. W. 635, and the Supreme Court refused a writ of error. It was there held that evidence of entering on and continuing active possession and use of a lot under claim of parol gift thereof was admissible as showing that the possession was adverse', putting in operation the 10-year statute of limitation. If we take the evidence of appellees in this case as true, and we must, in deference to the jury’s finding, that right to lay water pipes was a recognition and acquiescence in the claims then asserted by appellees to the right to use that .street for their enjoyment of their property at the time. It was not the mere granting •of a license, but was a concession in accord with a claim then being asserted. And if that was, as the cases noted held, sufficient to start the statute of limitation, there has been nothing since occurred which would stop it, up until Heard ran his fence there in 1910. See, also, Board of Trustees v. Railway Co., •67 S. W. 150; Railway Co. v. Gaines, 27 S. W. 266; Hall v. City of Austin, 20 Tex. Civ. App. 59, 48 S. W. 53; Irr. Co. v. Irr. Co., 92 S. W. 1015; McManus v. Matthews, 55 S. W. 589. The matter of whether possession is adverse is for the jury, when the evidence is conflicting, as it is in this case, and that was determined against appellants.

In Fin & Feather Club v. Thomas, 138 S. W. 155, cited by appellant:

“The evidence was sufficient to raise the issue that the act of the club in overflowing the slough was adverse to the owner of the land. There was evidence that plaintiff and his predecessors in title allowed the channel of the water on the land to become filled up by sediment, .and there was no error in submitting this issue to the jury.”

We see nothing in this inconsistent with the views above expressed. The assignments are overruled.

The location of the land was established with sufficient certainty, and the third and fourth assignments are overruled.

The fifth assignment is without merit, and is overruled. This asserts the proposition that, where one buys land without notice of an easement thereon in favor of a third party, the purchaser takes the same free from the easement. Limitation titles to land easements and similarly acquired rights are not subject to the registration laws of the state. Judge Williams has well expressed the reasons for this in MacGregor v. Thompson et al., 7 Tex. Civ. App. 34, 26 S. W. 650, where he says:

“The law creates and confers the title arising from adverse possession. It does not flow from a contract between the parties, which could be reduced to writing, and put of record. There is no privity between the possessor and him who is dispossessed, and the right of the former does not result from any act of the latter, but is the effect given by law to the possession. The adverse possessor does not hold under the former owner, but independently of him. As the law makes the title complete when the time has run, we cannot hold it necessary for the possessor to do something else, which the law has not exacted.”

A limitation title is specially provided for by law, and when it matures it is just as good as any title. See Burton’s Heirs v. Carroll, 96 Tex. 320, 72 S. W. 582, wherein Judge Brown discusses the matter. And yet we know of no provision of law for the registration of the same, so that the rule of innocent purchaser without notice would apply. A party buying the paper title receives only such title as his grantor has, and, if that has been lost and adverse possession is ripened into a limitation title, he receives nothing. Williams v. McComb, 163 S. W. 656; East Texas Land Co. v. Shelby, 17 Tex. Civ. App. 685, 41 S. W. 542.

This is not the same kind of a case as that where one buys without knowledge of an outstanding unrecorded deed, as in Rushing v. Lanier, 51 Tex. Civ. App. 278, 111 S. W. 1091, cited by appellant, because the law makes provision for the recording of such instruments, and provides especially what effect they shall have as against a purchaser without knowledge thereof.

For that matter, the evidence is sufficient to show that the owners of the fee did have notice of the use to which the road was being put and of the adverse claim of appellees, for Francis J.-Bowen testified that he told both Sipple and Heard before either bought. In addition to this, Sipple had been the agent for the Denver & San Antonio Investment Company and had given him the name of the man who was agent for the company before he (Sipple) became agent. Heard saw the lots before he bought, and the appellees’ witnesses all say there was a big plain road which any one who saw the lots could see.

The objection to the court’s charge set forth in the sixth assignment will not be considered, because the assignment fails to show that the objection was filed and called to the court’s attention before the main charge was given to the jury, and that exception was then and there taken to the action of the court. The bill of exception says: “And to this both defendants Heard and Sipple excepted.” When this was doné is not stated. It is necessary to show hy the bill that the objection to the charge was made at the proper time and by the court overruled, and exception reserved at the time of the ruling. Connor v. Uvalde National Bank, 172 S. W. 177; Price v. Lauve, 49 Tex. 80; I. & G. N. Ry. Co. v. Mercer, 78 S. W. 562; Anderson v. Anderson, 23 Tex. 640; Collins v. Bank, 75 Tex. 255, 11 S. W. 1053.

And for the same reason the seventh assignment will not be considered. The hill of exception simply shows:

“And be it further remembered that the defendants Heard and Sipple requested special charges 1, 2, 3, 4, 5, 6, 8, 9, 11, and 12, all of which were refused by the court, and the defendants then and there excepted to the action of the court, etc.”

When did they request these charges and when were they refused and exception reserved? It certainly does not show that they were presented before the main charge was given to the jury and action then taken by the court and bill reserved.

The judgment is affirmed.

On Motion for Rehearing.

Appellant contends that the bill of exceptions on which the sixth assignment is predicated should be held sufficient. We have given the question careful consideration, and although we believe our holding is in line with the statements made in the cited cases, and the general rules with regard to the requisites of bills of exception, we have no disposition to be unduly technical in the construction thereof, and hence have decided to consider such assignment of error. The assignment is based upon an objection to a paragraph of the charge reading as follows:

“If you believe from the evidence that the Denver & San Antonio Investment Company consented to the use of the lots as a roadway by plaintiffs, and that the plaintiffs commenced and afterwards used the road, if there was one hy reason of such consent of the former owner of the lots, if there was, and that such consent, if any, was revocable at the will of the said Denver & San Antonio Investment Company, then you will find for the defendants; but if you believe from the evidence that plaintiffs began to use said road under claim of right prior to said consent, if any, then this issue would become immaterial, and you cannot find for the defendants on this issue.”

The only point made is that there is no evidence that the consent given by the Denver & San Antonio Investment Company was not revocable. In this connection, it is stated that a mere permissive use of a road is always presumed to be revocable at the will of the owner. This statement adds nothing to the contention. It amounts to an assumption that the evidence shows merely a permission, and not a grant intended to be permanent. The testimony relating to the consent referred to by the court is not set out by appellants in their statement, and we are justified in overruling the assignment on that ground alone.

However, as we understand the testimony considered by us in disposing of the preceding assignments, it shows a verbal grant of the right to use the land as a road or street, upon the strength of which the grantees arranged, in building their houses, to leave open a road or street which would connect with the land over which they claim the easement, and which extension would be beneficial to the grantors. This issue was material on the question whether the possession was adverse, for a permissive use cannot be adverse; but where a grant is made, which is unenforceable because in violation of the statute of frauds, the holding _ under such a grant is adverse. It is evident’ from the nature of the transaction as shown by the testimony that the grant was intended to be permanent and not a mere permissive use. If we are correct in this, the testimony being undisputed, it was the duty of the court to so instruct; but the defendants could not have been injured by reason of the fact that the jury decided the question against them, if the court should have so decided it. But to say the least, the testimony we have in mind shows a verbal grant, and, if we have overlooked testimony disputing the same, there was at least an issue for the jury, and the only defect in the charge consisted in failing to give the jury a guide by which to determine whether it was revocable or not. No such objection was made to the charge, however, nor any effort made to supply the omission. The assignment is overruled.

The seventh assignment must be overruled, unless it raises a question of fundamental error, for, in addition to the defect in the bill of exceptions pointed out in our former opinion, we call attention to the further fact that the assignment is not a copy of any paragraph of the motion for new trial, and in fact relates to a point not even mentioned in such motion. We are inclined to the view that, if the assignment points out an error, it would not be a fundamental one; but, as we conclude there is no error, we will briefly state our reasons for such conclusion, leaving the question of what is fundamental error alone, in the hope that, by the time it becomes necessary to pass upon it under similar circumstances, the Supreme Court will have given us some more definite guide than that furnished by the opinions now before us.

Appellant contends that the evidence is insufficient to support the judgment because it shows without contradiction that the land over which the easement is claimed is separated by an alley from the land to which such easement is claimed to be appurtenant. Only one Texas case is cited in support of such contention, viz., Alley v. Carleton, 29 Tex. 78, 94 Am. Dec. 260. In said case the point was not decided, but the court in describing the kinds of easements stated that an easement “appendant” is incident to an estate, one terminus of which is the land or tenement of the party claiming it. The rule contended for by appellant is sustained by some of the earlier cases as well as textbook writers; but the more liberal view now obtains very generally that, notwithstanding neither terminus of the way is upon the close to which it is claimed appurtenant, it will nevertheless be so regarded, if it clearly appears to have been the intention of the parties that it should be. Ruling Case Law, vol. 9, p. 738; Graham v. Walker, 78 Conn. 130, 61 Atl. 98, 2 L. R. A. (N. S.) 983 and note, 112 Am. St. Rep. 93, 3 Ann. Cas. 641; Jones on Easements, § 5. As the question is an 'open one in this state, we feel at liberty to adhere to the more liberal rule, which is founded upon justice and common sense in preference to one based upon the shadow instead of the substance.

The motion for rehearing is overruled.
      (g^For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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