author: FLY, O. J.

text:
    PENSHORN v. INTERNATIONAL & G. N. RY. CO.
    (No. 5692.)
    (Court of Civil Appeals of Texas.
    May 31, 1916.)
    1. Railroads <&wkey;>103(l) — Right of Wat Fences — Gates—Maintenance.
    Where a railroad right of way divides an in-elosure, the owner may demand and compel the railroad company to place gates in the fences along the right of way to permit passage from one part of the inclosure to the other as' required by Rev. St. 1911, art. 6486.
    [Ed.. Note. — For other eases, see. Railroads, Cent. Dig. §§ 315, 762; Dec. Dig. &wkey;lD3(l).]
    2. Railroads &wkey;>103(l) — Right of Wat Fences — Gates—Maintenance.
    Where a railroad places gates at openings in right of way fences, dividing an inclosure as required by Rev. St. 1911, art. 6486, the duty devolves on the owner of the premises to keep such gates in repair.
    [Ed.‘ Note. — For other, cases, see Railroads, Cent. Dig. §§ 315, 762; Dec. Dig. <§=3103(1).]
    3. Railroads <&wkey;413(6) — Right of Wat Fe n ces — Gates.
    The placing of gates in a right of way fence dividing an inclosure as required by Rev. St. 1911, art. 6486, although unnecessary by reason of another passageway under railroad trestle, is not negligence rendering the railroad liable for live stock escaping through such gates and being killed on right of way.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1468, 1472; Dec. Dig. &wkey;413(6).]
    Appeal from District Court, Comal County; Frank S. Roberts, Judge.

      Action by Otto Penshorn against the International & Great Northern Railway Company. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    Henne & Euchs, of New Braunfels, for appellant. "Wilson, Dabney & King, of Houston, and Fisher & Fisher and Robt. Thompson, all of Austin, for appellee.
   FLY, O. J.

This is an action for damages resulting from the killing of two horses and two mules of the aggregate value of $1,-000, while they were on the track of appel-lee. The negligence, as alleged, consisted in having a gate in a fence dividing appellant’s land, which was not erected for the benefit of appellant, but was unnecessary, as there was a trestle on the railroad, under which appellant could pass from one part of his land to the other; that it was negligent in appellee to permit the gate to remain in the fence, and in permitting the gate to remain open so that the animals of appellant could go upon the right of way; that telephone companies that had lines running along and near the railroad track were in the habit of throwing down the fence and using the gates, and left them open; that appellant had requested appellee to prevent the telephone companies from tearing down the fence, but it failed to do so and did not repair the fence; that the servants of the telephone companies left the gate open on the day the stock was killed, and, if appellee had repaired the fences, it would have seen the gate open and could have closed it; and that the employés of appellee, by the exercise of ordinary care, could have seen the animals on the track in time to have prevented striking and killing them. The court, after hearing the evidence of appellant, instructed a verdict for appellee.

When appellant bought the land in question, it was divided by the right of way of appellee, and gates were in and through the fences of appellee to give a way to pass from one part of the land of appellant to the other. There was also an opening under a trestle which appellant often used in passing from one part of his land to the other. 1-Ie also used the gates, but to quote his own expression: “I did not use the gate unless 1 just happened to be going through there.” That would seem to be the usual and customary way of using %ates. Appellant at no time objected to the gates and never requested their removal; but, on the other hand, he used the gates and sought to have cattle guards put on the right of way in order to use them more. There was no evidence of negligence on the part of appellee, unless it was negligence to put the gates in the partition fences.

The leaving of the opening through the fences dividing the inclosure of appellant was in direct compliance with the requirements of Rev. Stats, art. 6486. The opening under the trestle did, not comply with the law, for the opening is required to be made in the fence, and appellant could have demanded and compelled appellee to make the opening. Railway v. Burgess (Tex. Civ. App.) 41 S. W. 703; Railway v. Ford (Tex. Civ. App.) 42 S. W. 589; Railroad v. Grier, 20 Tex. Civ. App. 138, 49 S. W. 148.

Appellee had the right to place gates at the opening, and then the duty devolved on the owner of the contiguous land to keep the gates closed. Railroad v. Glenn, 8 Tex. Civ. App. 301, 30 S. W. 845. In that case it was shown that the gates were left open by third parties, just as in this case it was shown that employés of telephone companies left the gates open, and the court held that:

“Where a railroad company, for the convenience of the * * * owner of the farm, erects gates in a fence with which it has inclosed its right of way, the duty rests upon the owner of the farm, and not upon the company, to keep these gates closed; and that whore, under such-condition of facts, the company, in the operation of its trains, exercises ordinary care, it cannot be held liable for the killing of stock which has passed through such gates upon its right of way.”

It is not intimated that the gates erected by appellee in the present case wore not sufficient, but the whole theory of appellant is that the gates ought not to have been erected because- there was a gully through which appellant could pass, and that it was the duty of appellee to keep watch on the employés of the telephone companies and prevent them from leaving the gates open. The-gates were placed in the fences before appellant bought the land, presumably at the-request of the owner, because railroad companies are not in the habit of spending their money for amusement, but usually at the beck and call of the law, and appellant at no time protested or demanded that the gates be removed, but used the gates whenever he “happened to be going through there.”

If it be admitted that there was, in view of the existence of a passageway under the trestle, no necessity for the opening in the-fences and erection of the gates, still that fact could not affect the validity or legality of the opening and gates. The law commanded the making of the opening in the fence, however unnecessary it may have been,- and a compliance with the law would not become illegal because a compliance with it under the circumstances was not necessary for the convenience of the landowner.

There was no evidence whatever of negligence on the part of the appellee, and the court did not err in instructing a verdict for appellee.

The judgment is affirmed.
      ®=sFor oilier oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: JENKINS, J.

license: Public Domain

text:
    FIRST STATE BANK OF HOLLAND v. MILLS et al.
    (No. 5650.)
    (Court of Civil Appeals of Texas. Austin.
    May 24, 1916.)
    Bauks and Banking &wkey;>154 (9) — Deposits— Action — Question eoe Juey.
    In an action by depositor to recover the amount of alleged deposit on evidence that depositor did not object to charging back the deposit to him when not collected, but agreed to It, and executed notes for overdrafts made necessary by such charging back, and that the bank relied, to its injury, on such recognition of its right to charge back, the question of his estop-pel was one for the jury.
    [Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §§ 530-533; Dec. Dig. &wkey;> 154(9).]
    Appeal from Bell County Court; W. S. Shipp, Judge.
    Consolidated actions by W. A. Mills and another against the First State Bank of Holland, and by said bank against W. A. Mills and another. From a judgment for W. A. Mills and another, the bank appeals.
    Reversed and remanded.
    Stanton Allen, of Bartlett, for appellant.
   JENKINS, J.

On December 12, 1913, ap-

pellant issued to appellee W. A. Mills a deposit certificate for $450.84, against which account appellee drew $50. This deposit certificate was issued under the following circumstances: Appellee presented to appellant a cotton ticket from the public weigher of Holland, showing that he had sold to one Paul Miller seven bales of cotton at 12 cents per pound, amounting in the aggregate to $450.84. Paul Miller was then engaged in buying cotton in the town of Holland, and appellant was advancing the money to pay for the same upon presentation of cotton tickets of the character named. On December 16, 1913, Paul Miller, upon examining his account with the bank, was shown said cotton ticket, and denied that he had purchased said cotton at 12 cents a pound, but that he had agreed to pay for the same only 11 cents a pound, and refused to accept said cotton. Thereupon appellant’s cashier notified appel-lee W. A. Mills that Paul Miller refused to accept the cotton, and that he had charged back the $450.84, and inclosed the cotton ticket to W. A. Mills. It appears that Mills was doing business with the bank, and, including the $50 which he had drawn on the cotton, he had on March 7, 1914, an overdraft of $97.03. On that day he executed to the bank his note for $131.25 to cover said overdraft and an additional amount of money that day borrowed by him from the bank, he understanding that such was the purpose for which this note was executed. Subsequently he borrowed money from the bank and executed other notes. Appellant brought suit against appellee on said notes, and said suit was consolidated with appellees’ suit against the bank to recover the amount of said deposits.

Upon the trial of this case the court peremptorily instructed the jury to return a verdict for appellee for the amount of said deposit, with interest thereon from the date thereof, and to return a verdict for appellant for the notes sued on, with interest, according to their face and tenor. The jury returned a verdict in accordance with said instructions, the difference between said amounts being in favor of appellee for the sum of $188.50. Appellant duly excepted to said charge for the reason that the evidence raised the issue of estoppel as against the appellee to claim from appellant the amount of said deposit.

The appellant alleged in its answer that appellee was estopped by reason of the fact that he never notified the bank that he objected to the amount of said deposit being charged off, as above stated; but, on the contrary, at the time of executing the first note mentioned, agreed that he was indebted to appellant by reason of the transaction stated ; and also on several occasions stated to the bank that he did not hold the bank liable by reason of said transaction, and that, had he made any claim against the bank for said deposit, it could and would have protected itself by making some disposition of the cotton, but that said ticket was returned to appellee, and that said cotton has continued'to be his property, and that he has allowed the same to rot and become wholly worthless. The appellant reserved the following bill of exceptions:

“Be it remembered that upon the trial of the above numbered and entitled cause, in this court on the 29th day of June, 1915, after all of the evidence had been heard, and both plaintiffs and defendants had rested their cases, and after the witnesses V. E. H. Reed, Jr., and Dr. V. E. H. Reed, testifying' for the defendant, First State Bank of Holland, had both testified that the plaintiff W. A. Mills had stated to them in the spring of 1914 that he, W. A. Mills, did not intend to hold said bank liable to pay him the amount of the $450.84 deposit, and after the said W. A. Mills testified that he executed his note to said bank for $131.25 on March 7,1914, in part to cover an overdraft claimed by the bank to be owing to it on the Payne Mills account, and after Dr. V. E. H. Reed testified that he called upon W. A. Mills in the spring of 1914 to tell him whether he intended to claim the amount of said deposit against the bank so that the bank might protect itself with said cotton, and then receiving"'the assurance from W. A. Mills that he did not intend to hold the bank for the amount of said deposit, the court gave in charge to the jury, as his only charge in this case, the following charge, to wit (giving style of the case):
“Gentlemen of the Jury: In this case you are instructed to find for the plaintiff the sum shown by deposit in First State Bank of Holland to plaintiff W. A. Mills et al. in the amount of $450.84, with interest thereon at 6 per cent, from December 12, ]913. Ton are further instructed to find for the defendant, First State Bank of Holland, for the full amount of the notes herein sued upon, together with 10 per cent, interest thereon and for 10 per cent, attorney’s fees thereon.
“W. S. Shipp, Oonnty Judge.
“To which action of the court in peremptorily charging the jury to find for plaintiffs for the amount of the $450.84 deposit, the defendant then and there in open court excepted, because the evidence as hereinabove stated and as shown in the statement of facts clearly raises an issue of estoppel and waiver as against plaintiffs’ right to recover said sum of defendants, and such issues should have been submitted to the jury, and because the evidence in this cause was 'not of such a conclusive nature as to justify the judge in giving the jury a peremptory charge to find in favor of plaintiffs; and the defendant here now in open court tenders this its bill of exceptions, and prays that the same may be examined, signed, and approved by the court, and ordered filed as a part of the record in this cause.”

One of the Reeds mentioned was president, and the other was cashier, of the bank.

The statement of facts sustains the statements made in said bill of exceptions. The evidence in the case was sufficient to raise the issue of estoppel, and the court erred in peremptorily instructing the jury to find for the appellee any amount by reason of said certificate of deposit.

The judgment of the trial court is reversed, and the cause is remanded for a new trial in accordance with this opinion.

Reversed and remanded.
      @=»For other cases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes


text:
    HABER v. McCLAIN, District Clerk.
    (No. 5705.)
    (Court of Civil Appeals of Texas. Austin.
    May 10, 1916.)
    Juey <&wkey;77(l) — Compensation — ADJOURNMENT.
    Under Rev. St. 1895, art. 8232, and Rev. St. 1911, art. 5169, providing for juror’s compensation for each day he may “serve or attend” as juror, and that jurors shall not be paid during the time they stand adjourned, where the court on Monday adjourns jurors to the following Wednesday in that term, they are not entitled to pay for Tuesday.
    [Ed. Note. — Por other cases, see Jury, Cent, ©ig. §§ 392-396, 399; Dec. Dig. &wkey;77(l).]
    Appeal from District Court, McLennan County; Erwin J. Clark, Judge.
    Petition for mandamus by Sidney Haber against R. V. McClain, District Clerk. From a judgment for respondent, relator appeals.
    Affirmed.
    Nathan Patten, of Waco, for appellant.
   JENKINS, J.

The relator, a citizen of Mc-Lennan county, and a resident of the city of Waco, the county seat of said county, was legally summoned to serve as a juror in the district court of said county for the week beginning Monday, January 10, 1916. In obedience to said summons he appeared on said day and was sworn and impaneled as a juror for said week, and was thereupon excused from further attendance on said court until Wednesday, January 12th, at which time he appeared and was in attendance on said court for the remainder of the week. He was not required to attend on Tuesday, and was not physically present in said court on said day. The clerk of said court, the respondent herein, issued to relator a certificate for his attendance for the week, except for Tuesday, for which day he refused to issue such certificate, whereupon the relator filed in said court his petition for a mandamus to compel respondent to issue to him a certificate for his attendance on said day. The court refused to order the writ of mandamus, and rendered judgment that the respondent recover all costs in this behalf expended.

Article 3232, R. S. 1895, reads as follows:

“Each juror in civil cases shall receive two dollars for each day and for each fraction of a day he may serve or attend as such juror.”

As the relator neither served nor attended the court as a juror on January 11th, he is not entitled, under the provisions of this article, to any pay for that day, and there is no provision of law which would allow him such pay. If there could be any doubt as to the correctness of the judgment of the court herein, we think such doubt would be removed by article 5169, R. S. 1911, which reads as follows:

“The court may adjourn the whole number of jurors for the week, or any part thereof, to any subsequent day of the term, but jurors shall not be paid for the time they may so stand adjourned.”

In the instant case it appears that the court on Monday adjourned a part of the jury (the relator herein) to a subsequent day of the term, to wit, Wednesday, and that such part of the jury stood adjourned for Tuesday, and was therefore not entitled to any pay for that day. For the reasons stated, the judgment of the court is affirmed.

Affirmed.


author: MOURSUND, J.

text:
    DONADA v. POWER.
    (No. 5579.)
    (Court of Civil Appeals of Texas. San Antonio.
    April 26, 1916.
    Rehearing Denied June 14, 1916.)
    Appeal and Error <&wkey;1178(6) — Determination and Disposition op Cause.
    Under rule 62a for the Courts of Civil Appeals (149 S. W. x), where the issues in an action were severable, and the error affected only a part of the matter in controversy, the findings of the trial court not found to be prejudicial will be deemed conclusive, and judgment affirmed as to that part, and the cause remanded for trial of the issues affected by the error.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4614, 4615; Dec. Dig. &wkey;> 1178(6).]
    Appeal from District Court, Refugio County ; John M. Green, Judge.
    On motion for rehearing and to modify order.
    Order reversing and remanding generally modified.
    For former opinion, see 184 S. W. 793.

      Dougherty & Dougherty,' B. D. Tarlton, Jr., and H. S. Bonham, all of Beeville, for appellant. Wilson, Dabney & King, of Houston, and J. Turner Vance, of Refugio, for appel-lee.
   On Motion for Rehearing and to Modify Order.

MOURSUND, J.

We are ashed by appellee to modify our judgment, reversing the judgment of the trial court and remanding the cause generally,- so as to affirm that part of the judgment of the district court relating to the appellee’s suit for rent for the 37 acres of land, being the 20 acres described in the written contract and the 17 acres taken by appellant under the provisions of said contract not later than January 1, 1908, as found by the jury.

We conclude that the request should be granted, upon the authority of the following cases: Marshall v. City of San Antonio, 63 S. W. 138; Shirley v. Railway, 78 Tex. 131, 10 S. W. 543; Cooper v. Lee, 75 Tex. 114, 12 S. W. 483; Hanriek v. Gurley, 93 Tex. 458, 54 S. W. 347, 55 S. W. 119, 56 S. W. 330; McConnell v. Wall, 67 Tex. 352, 5 S. W. 681; Id., 65 Tex. 397; Nona Mills Company v. Jackson, 159 S. W. 932; rule 62a for Courts of Civil Appeals (149 S. W. x).

The judgment of the trial court is reversed, and the cause remanded, with instructions to the trial court to try the issues in the case, other than the one relating to rent sought to be recovered for the 37 acres of land, on which the findings made upon the trial below are to be held and deemed conclusive, and so taken in entering the final judgment to be rendered in the case upon trial of the other issues.
      other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: KEY, C. J.

text:
    HAMMACK et al. v. SCHLEY.
    (No. 5657.)
    (Court of Civil Appeals of Texas. Austin.
    May 24, 1916.)
    Injunction <&wkey;110 — Actions—Jubisdiction.
    Under Rev. St. 1895, art. 2996, providing that writs of injunction granted to stay proceedings in a suit or execution on a judgment shall be returnable to and tried . in the court where such suit is pending or such judgment was rendered, while a district judge may have authority to issue a temporary injunction to prevent the execution of a judgment in the ■county court, it should be made returnable to the county court, and the district court has no jurisdiction to pass on the question of making it permanent.
    [Ed. Note. — Eor other cases, see Injunction, ■Cent. Dig. §§ 188-194; Dec. Dig. <S&wkey;110.]
    Appeal from District Court, Coryell County; J. H. Arnold, Judge.
    Suit by D. S. Schley against J. W. Ham-maek and another. From a judgment for plaintiff, defendants appeal.
    Reversed, with instructions.
    R. F. Moore and R. B. Cross, both of Gatesville, for appellants. Mears & Watkins, of Gatesville, for appellee.
   KEY, C. J.

Geo. T. Moore recovered a judgment against J. C. Schley in a justice of the peace court of Coryell county, and caused an execution to ■ be issued and levied upon a certain wagon. D. S. Schley filed his claimant’s oath and bond for the trial of the rights of property, which trial resulted in a judgment ágainst D. S. Schley in the justice court, and he appealed the' case to the county court, where a similar judgment was rendered. Following the terms of the statute, this latter judgment provided that it might be satisfied by the return of the property and payment of the costs and damages within ten days from the date of the judgment. After the expiration of ten days, an execution was issued upon that judgment, and D. S. Schley made an application to the judge of the district court of Coryell county for an injunction to prevent the enforcement of the judgment and execution referred to; and, upon a trial in the district court of Coryell county, a judgment was rendered overruling the defendant’s plea to the jurisdiction of that court, finding that D. S. Schley had paid off and satisfied the judgment rendered against him by the county court of Coryell county, and restraining Geo. T. Moore, the plaintiff in that suit, and J. W. Hammack, the constable who was threatening to enforce the execution, from attempting to enforce or collect the judgment referred to; and Moore and Hammack have appealed.

We sustain appellants’ first assignment of error, which complains of the action of the district court in overruling their plea to the jurisdiction of that court. It is expressly provided by article 2996 of the Revised Statutes of 1895, that writs of injunction granted to stay proceedings in a suit, or execution on a judgment, shall be returnable to and tried in the court where such suit is pending, or such judgment was rendered. The plain and specific terms of that statute leave little room for construction; and, giving to its provisions their plain and obvious meaning, we hold that, while the district judge may have had authority to issue the temporary injunction, it should have been made returnable to the county court of Coryell county, and the district court committed reversible error when it overruled appellants’ plea to its jurisdiction. Railway Co. v. Butler, 52 Tex. Civ. App. 323, 114 S. W. 671; Railway Co. v. Butler, 52 Tex. Civ. App. 327, 135 S. W. 1064; Moore v. Vogt, 127 S. W. 234; Baker v. Railway Co., 146 S. W. 569; Bell v. York, 43 S. W. 68; Winnie v. Grayson, 3 Tex. 429; Cook v. Baldridge, 39 Tex. 250.

For the reasons stated, the judgment of the district court is reversed, and the cause remanded, witli instructions to that court to either dismiss the case or transfer it to the county court of Coryell county, as appellee Schley may elect; all the costs to. be taxed against him.

Reversed with instructions.
      <§sx>For other cases see same topic and KItY-NUMBER in all Key-Numbered Digests and Indexes


author: SWEARINGEN, J.

text:
    WALENTA v. WOLTER.
    (No. 5680.)

    (Court of Civil Appeals of Texas. San Antonio.
    May 24, 1916.
    Rehearing Denied June 14, 1916.)
    Wateks and Water Courses <&wkey;118 — Surface Waters-Obstructton.
    Under the common-law rule which, by virtue of Vernon’s Say les’ Ann. Civ. St. 1914, art. 5492, prevailed in Texas prior to Acts 34th Leg. (1st Called Sess.) e. 7, the proprietor of land improving the same may lawfully repel surface water and turn the flow back on other lands without liability.
    fEd. Note — For other cases, see Waters and Water Courses, Cent. Dig. §§ 128-130; Dec. Dig. &wkey;>118.]
    Appeal from District Court, Travis County; George Calhoun, Judge.
    Action by Otto Wolter against John Walen-ta, Sr. Judgment for plaintiff, and defendant appeals.
    Reversed, and judgment rendered.
    Lightfoot, Brady & Robertson, of Austin, for appellant. Dickens & Dickens and Albert S. Phelps, all of Austin, for appellee.

      Application for writ of error pending in Supreme Court.

   SWEARINGEN, J.

On August 29, 1914, appellee filed his first amended petition by which he sought to recover of appellant damages caused by the flo.w of surface water after rainfall.

Appellant and appellee owned neighboring tracts of land, that of appellant being naturally lower than appellee’s. The surface water flowing from the higher lands of appel-lee and other neighbors was diverted from its gravity flow over appellant’s cultivated land by embankments built by appellant along his fences for the purpose of repelling surface water from his fields. The embankments caused the surface water to overflow portions of the lands of appellee by which he was damaged. In accordance with the verdict of the jury judgment was rendered against appellant for $1 and costs.

Appellant’s second assignment is that:

“The court erred in refusing to give and read to the jury the special charge No. 1, requested by the defendant, which is substantially as follows: ‘At the request of the defendant you are instructed to return a verdict for the defendant.’ ”

This assignment must be sustained. The peremptory instruction should have been given to the jury.

Until changed by an act of the Legislature in 1915 (Gen. Laws of Texas, First Called Session, c. 7, p. 17) by which the civil-law rule seems to have been adopted, the common law with respect to the obstruction and flow of mere surface water has been the law in Texas since January, 1840 (Vernon’s Sayles’ Texas Civ. Stat. art. 5492), except as to embankments built by railway corporations for roadbeds, which are governed by statute (Railway v. Helsley, 62 Tex. 593).

The common-law doctrine upon this subject was first announced in the courts of Massachusetts, but since then has been adopted by many states in the United States, among them Wisconsin, Maine, New Jersey, Missouri, New York, New Hampshire, Vermont, Connecticut, Indiana, Kansas, Washington, Rhode Island, Michigan, Minnesota, and New Mexico.

Mr. Justice Brewer, in an opinion for the Supreme Court of the United States (Walker v. New Mexico, eta, 165 U. S. 593, 17 Sup. Ct. 421, 41 L. Ed. 837), said that the difference between the civil and the common law upon this subject was correctly stated in a carefully prepared opinion by Chief Justice Dixon in Hoyt v. Hudson, 27 Wis. 656, 9 Am. Rep. 473, as follows:

“The doctrine of the common law is * * * that the proprietor of the * * * lower * * * estate may, if he choose, lawfully obstruct or hinder the natural flow of such (surface) water thereon, and in so doing may turn the same back upon or oft, onto or over the lands of other proprietors, without liability for injuries ensuing from such obstruction or diversion.”

Substantially the same definition of this doctrine is given in the text-books by Kinney, Farnham, and Gould. Kinney erroneously states, on page 3095, that Texas adopted the civil law doctrine, and carelessly cites the case of Sabine, etc., v. Joachimi, 58 Tex. 456. That case sustains no such doctrine. Farnham (vol. 3, p. 2594) just as carelessly attempts to distinguish the case of Gannon v. Hargadon, 10 Allen (Mass.) 106, 87 Am. Dec. 625, by injecting a “stranger” in the-case when in fact there is no distinction.

Our Texas Supreme Court, in 1889, in the case of Gross v. Lampasas, 74 Tex. 197, 11 S. W. 1086, expressly held that the common-law doctrine upon the subject was the law of Texas and cited the Wisconsin case of Lessard v. Stram, 62 Wis. 112, 22 N. W. 284, 51 Am. Rep. (Extra Ann.) 715, and notes page 1133. The Lessard Case was based upon the case of Hoyt v. Hudson, 27 Wis. 656,. 9 Am. Rep. 473, above cited, by the Supreme Court of the United States. The Wisconsin cases are based upon the doctrine adopted-first by Massachusetts, as stated in the Gan-non v. Hargadon Case. Later, in the case of Booker v. McBride, 16 Tex. Civ. App. 348, 49 S. W. 1031, a Texas appellate court held that a party had a right to build a wall upon his own land to prevent its overflow by surface water.

In 1900 the case of Gembler v. Echterhoff, 57 S. W. 313, was decided by this court, which holds that:

“The gist of the common-law rule is that one may do as he pleases with his land, regardless of the effect upon surface water which may flow over it” — citing Gould on Waters, § 267, Bowls-by V. Speer, 31 N. J. Law, 351, 86 Am. Dec. 216, and among others the case of Gannon v. Hargadon, 92 Mass. (10 Allen) 100, 87 Am. Dec. 625.

It is true that in the Gembler Case the court held in substance that after the rainfall ceased to be wild, and ceased to be a public enemy, but came under the control of a party, that party could not store it for his own uses upon the land of another. It seems clear that when rainfall is under control, either by ditches, tanks, ponds, or pipes, it is no longer surface water as defined by the decisions. Nevertheless, the Gembler Case expressly recognizes the common-law doctrine as the law of Texas.

In 1904 the Court of Appeals decided the Gramann-Eicholtz Case, 36 Tex. Civ. App. 309, 81 S. W. 756, wherein it was said:

“Under the common-law rule, which seems to prevail in this state, one may protect his own property from the effects of surface water percolating or flowing through or over it, and this without reference to the effect it may have on his neighbor’s land. Booker v. McBride, 16 Tex. Civ. App. 348, 40 S. W. 1031; Gembler v. Eehterhoff, 57 S. W. 313, and authorities cited.”

Though the decision in that case turned upon the fact that a well-defined water course had been altered which distinguished it from the common-law rule of flowing surface water.

The question was again discussed by the Texas Supreme Court in the case of Barnett v. Matagorda, etc., Irr. Co., 98 Tex. 355, 83 S. W. 801, 107 Am. St. Rep. 036, and Justice Williams held that the opinion in the Gross Case was a clear recognition of the common law as to the rights of landowners to repel the flow of surface water over their lands from those adjoining, and that whatever damage is caused by the exercise of this right is to be regarded as damnum absque injuria, and in illustration of this common-law doctrine cites among many decisions the Massachusetts case of Gannon v. Hargadon, 10 Allen (Mass.) 106, 87 Am. Dec. 625.

In the Barnett Case the embankment was apparently not at the boundary of the land, but inside the boundary. This doctrine was again announced in 1913 by the Texas Court of Appeals in the case of Wilborn v. Terry, 161 S. W. 33, to the following effect:

“If the effect of the dam was only to obstruct or prevent the outflow from appellant’s land of the surface water arising from rain falling thereon or falling on other lands surrounding, and which, in seeking an outlet, flowed over appellant’s lands, there would be no liability on the part of appellees.”

Again in 1915 the question was before the Texas Court of Appeals in Cartwright v. Warren, 177 S. W. 197, which held in substance that a landowner had the right to obstruct and impound surface water upon neighboring lands by building embankments. The words, “wild” and “uncontrolled,” should be read into the opinion by the term “surface water,” and by the reference in the opinion to the Barnett v. Matagorda Case, which distinguished the Gembler Case. During the present term, this court had the same question in the case of Wellborn v. Wellborn, 185 S. W. 1041.

Beyond question, Texas has adopted the common-law rule in respect to surface water as explained by the Massachusetts courts. That rule is stated by Chief Justice Bigelow, speaking for the court, in Gannon v. Hargadon, 10 Allen (Mass.) 106, 87 Am. Dec. 625 (see Extra Ann. 87 Am. Dec. p. 108), who expressed the doctrine as follows;

“A party may improve any portion of his land, although ho may thereby cause the surface water flowing thereon, whencesoever it may come, to pass off in a different direction and in larger quantities than previously. If such an act causes damages to adjacent land, it is damnum absque injuria.”

In the case at bar the damage is alleged to have been caused by surface water, and the charge of the court expressly limited the case to surface water. The charge was not objected to by appellee. We therefore must conclude that appellee had no cause of action against appellant.

The judgment of the trial court is reversed and here rendered in favor of appellant.
      ©=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DAVIDSON, J.

text:
    ADAMS v. STATE.
    (No. 4075.)
    (Court of Criminal Appeals of Texas.
    May 17, 1916.)
    Appeal from Gregg County Court; J. H. Me-Haney, Judge. Dave Adams was convicted of violating the local option law, and appeals.
    Affirmed.
    C. 0. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of violating the local option law; his punishment being assessed at a fine of $50 and 30 days' imprisonment in the county jail. The record is before us without a statement of facts or bill of exceptions. There is nothing suggested for revision, except the insufficiency of tbe evidence, which is not before us. The judgment is affirmed.


author: HARPER, J.

text:
    BLAIR v. STATE.
    (No. 4064.)
    (Court of Criminal Appeals of Texas.
    May 10, 1916.)
    Appeal from District Court, Collin County; M. H. Garnett, Judge. Foot Blair was convicted of forgery, and he appeals.
    Affirmed.
    O. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of forgery, and his punishment assessed at two years’ confinement in the state penitentiary. The record contains no bill of exceptions, and no statement of facts accompanies the record. The indictment properly charges the offense, and the case of necessity must be affirmed. The judgment is affirmed.


text:
    GAMBLE v. STATE.
    (No. 4095.)
    (Court of Criminal Appeals of Texas.
    May 24, 1916.)
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge. Mose Gamble was convicted of larceny, and his motion for new trial was overruled, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of cattle theft; his punishment being assessed at two years’ confinement in the pen tentiary. The record is before us without a statement of facts or bill of exceptions. There is nothing in the motion for new trial that can be reviewed in the absence of a statement of facts. The judgment, therefore, will be affirmed.


author: PRENDERGAST, P. J.

text:
    Ex parte RASBERRY.
    (No. 4077.)
    (Court of Criminal Appeals of Texas.
    May 10, 1916.)
    Appeal from District Court, Fisher County; John B. Thomas, Judge. Habeas corpus by Alfred Rasberry. From a refusal of bail in such proceeding, he appeals.
    Affirmed.
    J. F. Cunningham, of Abilene, for appellant.
    C. O. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

This is an appeal from the action of the lower court in refusing bail in a habeas corpus proceeding therefor. Our rule is not to discuss the facts on any such appeal. We have carefully read the statement of facts, and in our opinion the action of the judge of the lower court was correct. The case will therefore be affirmed.


text:
    WILSON v. STATE.
    (No. 4103.)
    (Court of Criminal Appeals of Texas.
    May 31, 1916.)
    Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge. W. J. Wilson was convicted of cattle theft, and appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of cattle theft; Ms punishment being assessed at two years’ confinement in tbe penitentiary. The record contains neither a statement of facts nor bill of exceptions. It presents nothing for revision by the court. The judgment, therefore, will be affirmed.


author: HODGES, J.

text:
    SEGAL v. McCALL CO.
    (No. 1012.)
    (Court of Civil Appeals of Texas. Texarkana.
    May 17, 1916.
    Rehearing Denied May 25, 1916.)
    Appeal from District Court, Marion County; P. A. Turner, Judge.
    Action by the McCall Company against J. J. Segal. Judgment for plaintiff and defendant appeals. On return of answers to questions certified by the Court of Civil Appeals to the Supreme Court (184 S. W. 188), judgment of trial court for plaintiff reversed.
    R. R. Taylor, of Jefferson, and Ma-haffey & Thomas, of Texarkana, for appellant.
    W. T. Armistead and J. H. Benefield, both of Jefferson, for appellee.
   HODGES, J.

This suit was instituted in. the court below by the McCall Company against J. J. Segal. The questions involved were certified by this court to the Supreme Court, and have been fully answered. See Segal v. McCall Company, 184 S. W. 188. The facts of the case are there fully stated. The answers returned by the Supreme Court to the questions certified necessitate a reversal of the judgment rendered in the court below in favor of the ap-pellee, the McCall Company, and the rendition by this court of a judgment in favor of the appellant, J. J. Segal; and judgment will be entered accordingly.


author: PHILLIPS, C. J.

text:
    GULF, T. & W. RY. CO. v. DICKEY.
    (No. 2863.)
    (Supreme Court of Texas.
    June 7, 1916.)
    1. Railroads <&wkey;276(4) — Injuries by Servant — Duty to Third Person.
    A railroad’s engine hostler who permitted an eight year old boy to get- upon an engine while he was in charge, was under obligation to use the care of an ordinarily prudent person, ur.der like circumstances, in turning on the injector, to see if the valve connecting a hose with the injector was closed, to prevent injury to the boy.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. M 884, 885; Dec. Dig. &wkey;276(4)J
    2. Trial <&wkey;296(3) — Instructions — Contradiction.
    In an action for injuries to an eight year old boy while on a locomotive in charge of an hostler, an instruction, telling the jury in the second paragraph that the exercise of ordinary care was the measure of duty under which the road rested, did not cure error in the third paragraph that the law required those in charge of dangerous machinery to use “great” care and prudence, since the giving of a contradictory charge does not correct the error committed in another part of the charge upon a material issue, and the only way to make the correction is to withdraw the erroneous instruction.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 709; Dec. Dig. &wkey;296(3).]
    3. Courts <&wkey;247(1) — Supreme Court — Appellate Jurisdiction — Statute.
    The mere refusal of the Court of Civil Appeals to consider an. assignment of error for reasons deemed by it sufficient does not present a question of substantive law necessary to the jurisdiction of the Supreme Court under Rev. St. 1911, art. 1521, subd. 6, as amended by Acts 33d Leg. c. 55, defining the appellate jurisdiction of the Supreme Court.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 487, 749, 754; Dec. Dig. &wkey;247(l).]
    4. Courts <®=^247(1) — Questions Review able —Question of Substantive Law.
    Where the charge of the trial court upon a material issue was prejudicially erroneous, and the Court of Civil Appeals has improperly refused to consider the assignment of error touching it, a question of substantive law is presented to the Supreme Court, and, in cases in which the jurisdiction of the Court of Civil Appeals is not final, is entitled to review in such court on writ of error.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 487, 749, 754; Dec. Dig. &wkey;247(l).]
    5. Appeal and Error <&wkey;544(l) — Reservation of Grounds of Review — Objection to Charge — Bill of Exceptions — Necessity.
    Under Rev. St. 1911, arts. 1970-1972, relative to the time and manner of submitting instructions to the jury, to obtain a review of the general charge of the court on appeal because of any error therein, an objection to the charge in the particular complained of must be presented to the trial judge before it is read to the jury, and, when such objection is made, it is the right of the complaining party to have the error considered by the appellate court without reserving a bill of exceptions to the charge.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2412; Dec. Dig. @=»544 (1)J
    6. Appeal and Error <&wkey;2 — Reservation of Grounds of Review — Statute.
    Rev. St. 1911, art. 1972, providing that the charge, after presentation of objections, shall be filed and constitute a part of the record and be regarded as excepted to and subject to revision for error without the necessity of taking any bill of exceptions thereto, was not repealed by implication by Acts 33d Leg. c. 59, amending Rev. St. 1911, arts. 1974, 2061, relative to the presentation of objections to the charge, as articles 1974 and 2061 concern only special instructions, and not the general charge.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3-7, 1882, 2421; Dee. Dig. ©=w2.j
    7. Appeal and Error &wkey;?233(l) — Presentation of Grounds of Review — Objection to Charge — Statute.
    Where, before the charge was read to the jury, defendant’s counsel presented to the court in writing the specific objection to an erroneous instruction raised on assignment of error presented to the Court of Civil Appeals, the objection being duly considered by the trial court, and, by its order then duly entered in the minutes, being overruled, defendant duly reserving exceptions, there was a substantial compliance with Acts 33d Leg. c. 59, relative to the presentation of objections to the charge, amending Rev. St. 1911. arts. 1954. 1970, 1973, 1974, 2061, and adding article 19S4A.
    [Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. <@^>233(1); Trial, Cent. Dig. § 192.]
    Error to Court of Civil Appeals of Second Supreme Judicial District.
    Action by William Dickey against the Gulf, Texas & Western Railway Company. To review a judgment of the Court of Civil Appeals (171 S. W. 1097) for plaintiff, defendant brings error. Judgments of the Court of Civil Appeals and district court reversed, and cause remanded to the district court for further trial.
    Ben B. Cain, of Dallas, Sporer & McClure, of Jacksboro, and J. A. Wheat, of Seymour, for plaintiff in error. D. A. Holman, of Seymour, for defendant in error.
   PHILLIPS, C. J.

The action was by William Dickey for the recovery of damages because of personal injuries suffered by his eight year old son, Maryland Dickey, through the act of Ed Moss, an engine hostler in tho employ of the defendant railway company. The boy was scalded by steam and hot water escaping from a hose in an engine cab where he was at the time, the engine being then at a station in the charge of Moss who was preparing it for a run. The hose was used to sprinkle coal in the engine tender. It was connected with an injector by means of a valve. The injector was used to refill the engine boiler with water from the engine tank. When the valve connecting the hose with the injector was closed, no water or steam could escape through the hose. Just before the boy’s injury Moss had been loading the engine tender with coal, and had used the hose for sprinkling the coal. I-Ie loaded some more coal into the tender and then proceeded to fill the engine boiler with water by turning on the injector. This caused steam and hot water to escape from the hose and scald the boy, the valve referred to being then open. Moss testified that after sprinkling the coal with the hose, he closed the valve, and that When he turned on the injector to fill the boiler with water he did not know the valve was open. A defense of the railway company was, that after Moss had closed the valve it was opened, without Moss’s knowledge, by either Maryland Dickey or his brother, who was also upon the engine with him, or some unknown person. A verdict in favor of the plaintiff was returned in the sum of $750.00, for loss of the boy’s services, extra services rendered by the plaintiff and his wife in nursing him, and for medical expenses incurred in his treatment.

The case for the plaintiff being that his minor son was upon the engine with the consent of the defendant’s employé, Moss, —then in charge of the engine, the duty owing by the defendant under such circumstances was the use by Moss of ordinary care to avoid any injury to the boy while he was upon the engine. While Moss, in his use of the hose which caused the injury, was under the obligation of using the care of an ordinarily prudent person under like circum, stances to prevent any injury to the boy by that means, this, according to the settled law, marked the extent of his duty. Moss having testified, as already stated, that he had previously closed the valve which connected the hose with the injector, and that when he turned on the injector to fill the boiler he did not know the valve was open, if the jury believed his testimony and that an ordinarily prudent person would, under the same circumstances, have turned on the injector in the belief that no harm would result to the boy from the hose, the defendant would have been entitled to be acquitted of liability. On the other hand, the plaintiff would have been entitled to have the issue of Moss’s negligence resolved against the defendant if the jury believed -that under like circumstances an ordinarily prudent person would not have turned on the injector at the time without positively seeing that the valve connecting the hose with the inject- or was closed. After, in the second paragraph of the charge, defining negligence to be “the failure to do that which a person of ordinary prudence resting under legal obligations would have done under the particular circumstances, or the doing of that which such person under such obligation should not have done under like circumstances; the essence of the fault may lie in the omission or commission,” the court, in the third paragraph of the charge, gave this instruction to the jury:

“You are further instructed that the law requires those in charge of dangerous machinery to use great care and prudence in operating such machinery as to avoid damage and injury to the persons and property of other people, and if by the want of such care and prudence injury is inflicted upon others without the fault of such others, such persons or companies operating such machinery must pay for such injuries or damages.”

In the fourth paragraph the jury were told, “if the defendant delegates to its agents br employés a certain work, and the agent or pmployé in discharge of such work is guilty of negligence, as in the court’s charge defined, such negligence would be that of the defendant, and if the servant of a railway company in charge of an engine was negligent, the company was responsible therefor.”

No attempt was made in the charge to present, as the predicate for a recovery in favor of the plaintiff, the distinct issue of negligence pleaded in the petition, that is to apply the proper rule of law to the partic- , ular grounds of recovery relied on in the petition and raised by the testimony, in respect to Moss’s turning on the injector with the valve connecting the hose with the inject- or, open; but, omitting any instruction of that character, in the eighth paragraph the jury was told, “if you find for the plaintiff under the instructions heretofore given you, you will allow him such damages,” etc.

The instruction embodied in the third paragraph of the charge, above quoted, to the effect that the law requires those in charge of dangerous machinery to use “great care and prudence” in operating such machinery, and that if through the want of such care and prudence injuries inflicted upon others without their fault, such persons or companies operating such machinery must pay for such injuries or damages, was clearly an erroneous charge, since it defined the measure of the defendant’s duty to be greater than the law imposes. It was in manifest contradiction of the second paragraph of the charge wherein, in substance, the jury was told that the exorcise of ordinary care was the measure of duty under which it rested. Under the charge as a whole the jury was left without any proper direction for the determination of the question of the defendant's negligence. Looking to one part of the charge they would find an instruction that the defendant’s employé Moss was negligent if he failed to use ordinary care, whereas in another portion of the charge was the instruction, in effect, that he would be guilty of negligence if he failed to use “great” care and prudence. It is settled in the decisions of this court, having been announced many times, that the giving of a contradictory charge does not correct the error committed by the court in another part of the charge upon a material issue; and that the only way to make the correction is to withdraw the erroneous instruction. M., K. & T. Ry. Co. v. Rodgers, 89 Tex. 675, 36 S. W. 243; I. & G. N. Ry. Co. v. Welch, 86 Tex. 203, 24 S. W. 390, 40 Am. St. Rep. 829; So. Kansas Ry. Co. v. Sage, 98 Tex. 438, 84 S. W. 814. This plainly erroneous instruction requires a reversal of the judgment if it was properly objected to by the defendant under the Act of the Thirty-third Legislature, Chapter 59, page 113, in relation to the presentation of objections to tbe court’s charge, so as to make the error reviewable on appeal. The Court of Civil Appeals declined to consider the railway company’s assignment of error in respect to this instruction, as well as all other assignments of error directed at the court’s charge because, as held by it, no proper bills of exception were reserved thereto. We are accordingly called upon to construe this Act in connection with the method employed by the defendant’s counsel in the presentation of their objections to the charge in the trial of the case.

The mere refusal of the Court of Civil Appeals to consider an assignment of error for reasons deemed by it sufficient does not present a question of substantive law, necessary to the jurisdiction of this court under subdivision 6 of Article 1521 as amended by the Act of the Thirty-third Legislature, Chapter 55, page 107, defining the appellate jurisdiction of the Supreme Court. Eor this reason, while dittering from the view expressed in some of the decisions of the Courts of Civil Appeals, that by the Act in question a formal bill of exception is required in order to entitle a complaining party to a review on appeal of any particular part of the court’s general charge, we have customarily declined to assume jurisdiction of cases involving the construction of this Act where the question presented to us was the mere refusal of the Court of Civil Appeals to consider an assignment of error in relation to the charge because of the failure, according to its view, to observe the requirements of the Act. If, however, the charge upon a material issue is prejudicially erroneous and the Court of Civil Appeals has improperly refused to consider the assignment of error touching it, a question of substantive law is presented; and, in cases in which the jurisdiction of the Courts of Civil Appeals is not final, is entitled to be reviewed here on writ of error.

There appears in the transcript a document, shown to have been a paper filed in the case on the same day as the charge, denominated “Defendant’s Exceptions to the Court’s General Charge,” duly signed by the attorneys for the defendant. It contains two specific objections or exceptions to the erroneous paragraph of the charge to which attention has been above directed, one of them being that it imposed upon the defendant a greater measure of duty than required by law and urging that under no phase of the case could the defendant be held under a greater duty than the exercise of ordinary care. In the transcript it is immediately followed by an order of the court, also of the date shown by the file mark of the charge, denominated “Order of the Court Overruling Defendant’s Objections to Court’s Charge,” showing that it was then filed and duly entered in the minutes of the court, as follows:

“On this day came on to be heard the objections and the exceptions of the defendant to the court’s general charge, which were presented to the court before the reading of his charge to the jury, and the court having heard the same is of the opinion that the law is against the said objections and exceptions, and it is therefore ordered and considered by the court that the same be and the same are hereby in all things overruled, to which the defendant excepted.”

It thus appears from tlie record of the case that before the charge of the court was read to the jury the defendant’s attorneys presented to the court in writing the specific objection to the erroneous instruction raised in an assignment of error presented to the Court of Civil Appeals which it declined to consider; that the objection was duly considered by the court, and by order of the court made at the time and duly entered in the minutes, was overruled, to which action, as shown by the entry of the order in the minutes, an exception was duly reserved by the defendant. Was this a substantial compliance with the Act of the Thirty-third Legislature, entitling the defendant to a review of the objection to the charge on its appeal? We think it was.

This Act amends Article 1954, Chapter 12, Title 37; Articles' 1970, 1971, 1973, and 1974 of Chapter 13, Title 37; Article 2061, Chapter 19, Title 37, and adds Article 1984a to Chapter 14, Title 37, of the Revised Statutes of 1911. The change worked in Article 1954 is to require the reading of the charge and special instructions given by the court to the jury before the beginning of the argument instead of at the conclusion of the argument as formerly provided.

Added Article 19S4a to Chapter 14 deals with the submission of special issues. It is unnecessary to notice it in this connection.

Chapter 13, Title 37, before its amendment by the Act and under the amendment, consisted and now consists of six different articles, 1970, 1971, 1972, 1973, 1974, and 1975. Articles 1970 and 1971 dealt only with the general charge of the court. Article 1972 was unamended and deals also with the general charge of the court. As amended by the Act, Articles 1970 and 1971, with the exception of a single reference to the subject of special issues in Article 1970 and a clause in Article 1971, — that special charges shall be given just as written, still deal only with' the general charge of the court. Before its amendment, Article 1970 merely provided for the giving of a written charge by the judge to the jury on the law of the case in open court, unless waived by the parties. As amended, it provides:

“In all civil eases the judge shall, unless the same be expressly waived by the parties to the suit, prepare and in open court, deliver a written charge to the jury on the law of the case, or submit issues of fact to. the jury if said cause is submitted to the jury on special issue of fact at the time, in the manner and subject to the restrictions hereafter provided, provided that failure of the court to give reasonable time to the parties or their attorneys for examination of the charge shall be reviewable upon repeal [appeal] upon proper exception.”

The provisions of Article 1971, before its amendment, in substance were, that the charge should be in writing and signed by the judge and read exactly as written; that the judge should not charge or comment on the weight of the evidence; that he should so frame the charge as to distinctly separate the questions of law from the questions of fact; that he should decide on and instruct the jury as to the law on the facts, and ■should submit all controverted questions of fact solely to the decision of the jury. As amended, with some parts italicized, the Article reads:

“The charge shall be in writing and signed by the judge; after the evidence has been concluded the charge shall be submitted to the respective parties or their attorneys for inspection and a reasonable time given them in which to examine it and present objedtions thereto, which objections shall in every instance be presented to the court before the charge is read to the jury, ■and all objections not so made and presented shall be considered as waived; before the argument is begun, the judge shall read his charge, and all special charges given by him to the jury in the precise words in which they were written; he shall not charge or comment on the weight of evidence; he shall so frame the charge as to distinctly separate the questions of law from the questions of fact; he shall decide on and instruct the jury as to the law arising on the facts, and shall submit all controverted questions of fact only to the decision of the jury.”

Article 1972 was not expressly repealed by the Act, nor, as stated, was it in anywise amended. It reads:

“Such charge shall be filed by the clerk and shall constitute a part of the record of the cause, and shall be regarded as excepted to, and subject to revision for errors therein, without the necessity of taking any bill of exception thereto.”

Without immediate reference to amended Articles 1973 and 1974 of Chapter 13, and amended Article 2061 of Chapter 19, which will be later noticed, the effect of amended Article 1971 and unamended Article 1972, in relation to the general charge of the court, when construed together, is plainly this:

1. At the conclusion oí the introduction of the testimony, the judge is required to submit the charge to the respective parties or their attorneys for their examination and the presentation of objections to it. A reasonable time must be given them for this purpose. Objections to the charge shall in every instance be presented to the court before it is read to the jury. All objections not so made and presented shall be considered as waived.

2. Since, by Article 1972, the charge is made a part of the record of the cause and is to be regarded as excepted to and subject to revision for errors without the necessity of taking any bill of exception to it, no bill of exception is' necessary to entitle a party to a review of the errors in the charge, provided, in the particular complained of, it was objected to before read to the jury. In other words, construing the two articles together, the change worked in the law is to require that for errors in the general charge to be reviewable on appeal they must be brought to the court’s attention before the charge is read to the jury; otherwise they are waived. ■ Since in the passage of the Act, Article 1972 was left intact by the Legislature, though it amended the two articles in the same chapter which immediately preceded it and the two succeeding articles, as well, it is evident, we think, that, in respect to the general charge, the concern of the Legislature was not directed to the subject of bills of exception" It is difficult to credit it with the purpose to change the law upon the subject of the general charge being regarded as “excepted to” without the necessity of any bill being reserved, when it is seen that by the. amendatory Act it left Article 1972 untouched. As revealed by the terms of the amendatory Act, the larger purpose of the Legislature, in relation to the general charge, was to give the trial judge an opportunity to correct any errors in his charge before giving it to the jury, so as to avoid new trials or reversals on that account. To accomplish this purpose the method devised was the requirement of amended Article . 1971, that all objections to the charge shall be presented to the court before it is read to the jury, upon the penalty of a waiver of the error. In its dealing with the general charge, the amendatory Act here stopped, leaving, so far as disclosed by its express terms, Article 1972 still in full force, with its distinct provision that the general charge “shall be regarded as excepted to and subject to revision for errors therein, without the necessity of taking any bill of exception thereto.” The three articles, that is amended Articles 1970 and 1971 and unamended Article 1972, in our opinion simply mean that in order to obtain a review of the general charge of the court on the appeal because of any error therein, an objection to the charge in the particular complained of must be presented to the trial judge before the charge is read to the jury, and that when such objection is so made, it is the right of the complaining pax’ty to have the error considered by the appellate court, without the necessity of going • through the formal procedure of reserving a bill of exception to the charge, inasmuch as Article 1972, left unamended by the Act, distinctly provides that no bill of exception to the charge is necessary for its revision on appeal on account of error.

We think there can be no doubt that such is the plain effect of these articles, unless it be that Article 1972 was repealed by implication in consequence of the amendment by the Act of Article 1974 of Chapter 13, or the amendment of Article 2061 of Chapter 19. That question is important and will now be considered.

The title of Chapter 13 in the Revised Statutes is “Charges and Instructions to the Jury.” The title and the body of the chapter plainly recognize the distinction between the general charge of the court and special instructions requested by the parties. As al-. ready stated, the general subject of Articles 1970 and 1971, before their amendment, as well' as that of Article 1972, was the general charge of the court. This is still true of amended Articles 1970 and 1971. The chapter, before the amendatory Act, after dealing with the general charge in these articles, turned to special instructions requested by the parties as a subject, and specifically dealt with them- in Articles 1973 and 1974. These two latter articles before the amenda-tory Act read:

“Art. 1973. Either party may present to the judge, in writing, such instructions as he desires to be given to the jury; and the judge may give such instructions, or a part thereof, or he may refuse to give them, as he may see proper, and he shall read to the jury such of them as he may give.”
“Art. 1974. When the instructions asked, or some of them, are refused, the judge shall note distinctly which of them he gives and which he refuses, and shall subscribe Ms name thereto; and such instructions shall be filed with the clerk, and shall constitute a part of the record of the cause, subject to revision for error without the necessity of taking any bill of exception thereto.”

The change worked in Article 1973 by the amendment is to add to the original article the following proviso:

“Provided, such instructions shall be prepared and presented to the court and submitted to opposing counsel for examination and objection within a reasonable time after the charge is given to the parties or their attorneys for examination.”

It is apparent that the addition of this proviso in nowise affects the force of Article 1972.

Article 1974 under the amendatory Act reads:

“When the instructions asked, or some of them, are refused, the judge shall note distinctly which of them he has given and which he refused, and shall subscribe his name thereto, and such instruction shall be filed with the clerk and shall constitute a part of the record of the cause, subject to revision for error.”

The change in Article 1974 effected by the amendatory Act is to omit the concluding clause of the original article, — following the phrase, “subject to revision for error”, namely “without the necessity of taking any bill of exception thereto.” This indicates, plainly, an intention to make an important change in the law with respect to the subject of taking bills of exception to special charges in order to obtain their review on appeal. It reveals very clearly we think a purpose to hereafter require the reserving of a bill of exception to the action of the court on special instructions as necessary to its revision on appeal. But inasmuch as both the original article and the amended article relate, not to the general charge of the court, but specifically to special instructions requested by parties, it is evident, we think, that this change in Article 1974 does not repeal or impair the force of Article 1972. The established rule is that repeals by implication are not favored, .and will not be indulged unless the two statutes are in irreconcilable conflict. Since these two statutes deal with different subjects, as distinctly recognized in their terms, no conflict between them is presented.

Article 2061 of Chapter 19, before its amendment by this act, read:

“The ruling of the court in the giving, refusing or qualifying of instructions to the jury shall be regarded as excepted to in all cases.”

It is plain to us that this article related, not to the general charge of the court, but only to special instructions requested by the parties. It is to be noted that not only is the term, “instructions” used in the article, whereas elsewhere in the statutes the term “charge” is used wherever the general charge of the court is intended and the distinction, between the general charge and special instructions is plainly recognized, but, in addition, the subject of the article is “the giving, refusing or qualifying" of “instructions.” These are proper terms with reference to the action of the trial court in the matter of special instructions, but they are altogether inappropriate terms as applied to the action of the trial court in respect to the general charge of the court. Eor instance, to conceive “the refusing” of the general charge of the court, is difficult. Added force is given to the view that this article related, and, as amended, still relates to only special instructions by the fact that the same rule embodied in the article had been, as applied to the general charge, already expressed in Article 1972, and is the specific subject of the latter article; and it would hardly be necessary therefore to repeat it in Article 2061. We are of opinion therefore that Article 2061, before its amendment, applied only to special instructions, and, as amended, applies only to them.

As amended by the Act, Article 2061 now reads:

“The ruling of the court in the giving, refusing or qualifying of instructions to the jury shall be regarded as approved unless excepted to as provided for in tho foregoing articles.”

The phrase, “the foregoing articles” very clearly relates, we think, to the articles which would and do precede it in Chapter 19, giving amended Article 2061 its proper place in that chapter. Article 2058, one of the articles of Chapter 19, requires that “whenever, in the progress of a cause, either party is dissatisfied with any ruling, opinion or other action of the court, he may except thereto at the time the same is made or announced, and at his request time shall be given to embody such exception in a written bill.” The effect, therefore of amended Article 2061 is to require the taking of a written bill of exception to the giving or refusing of a special instruction in order to have a revision of the court’s action on the appeal.

Article 2062, was not expressly repealed by the amendatory act, nor was it amended. It reads:

“Where the ruling or other action of the court appeal's otherwise of record, no bill of exception shall be necessary to reserve an exception thereto.”

As applied to special instructions, Article 2062 is in plain conflict with amended Article 2061, above quoted, and, as related to special instructions, it was by implication repealed by the amendment of Article 2061. But, as alréa'dy indicated, there is not any conflict between Article 1972 of Chapter 13 and amended Article 2061, since the former deals with the general charge and the latter with special instructions; and accordingly Article 1972 was not affected by the amendment of Article 2061.

The amendatory Act is silent with respect-to the manner in which it is to be evidenced of record what objections were made to the general charge of the court, and that those made were presented to the court before the reading of the charge to the jury, as is plainly required by amended Article 1971. To accomplish the purpose of the amendatory Act in its relation to the general charge, there should, of course, be some authentic record that the objections to the general charge urged on the appeal were in fact presented to the trial court, and presented before the charge was read to the jury. We think a filed paper in the cause setting forth the objections, with some due authentication of the fact that they were presented to the court, and before the reading of the charge to the jury, substantially complies with the requirement of amended Article 1971. In this case the record distinctly shows what the objections to the general charge were as presented by the attorneys for the defendant, as recited and set forth in a filed paper in the cause; and, as above shown, there is in the record the order or judgment of the court, taken from the minutes of the court and therefore necessarily approved by the judge, plainly reciting that the objections to the charge wei'e presented to the court before the reading of the charge to the jury; were duly considered, and were overruled. We do not think there could be a more reliable authentication of record presented that the objection urged on the appeal to the erroneous paragraph of the general charge above noted was in fact made as required by amended Article 1971; and the assignment of error in relation thereto was accordingly entitled to be considered. It has been duly carried forward and presented in the petition for writ of error, and we have therefore considered it. An answer to the petition for writ of error having been filed by the defendant in error, the case is subject to decision here.

Because of the erroneous charge, the judgments of the Court of Civil Appeals and the District Court are reversed and the cause remanded to the District Court for further trial.
      £=For other cases see same topic and KEY-N UMBER in all Key-Numbered Digests and Indexes


text:
    GULF, T. & W. RY. CO. v. DICKEY.
    (No. 2864.)
    (Supreme Court of Texas.
    June 7, 1916.)
    1. Appeal and Error <&wkey;233(l). — Reservation op Grounds op Review — Objection to Instruction — Statute.
    In an action for personal injuries, where a charge was objected to by defendant before being read to the jury, the objection was considered by the court and overruled, all of which appeared in the record from the defendant’s written filed objections to the charge, and the order or judgment of the court, taken from the minutes, recited the fact that the objection was made before the charge was read to the jury, and was overruled by the court, the procedure was a substantial compliance with Acts 33d Leg. c. 59, relative to the time and manner of submitting instructions to the jury, and the assignment of error embodying the objection to the instruction presented at the trial was entitled to be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. <&wkey;233(l).]
    2. Railroads &wkey;>282(10) — Injuries to Thied Persons — Negligence of Servant — Question foe Jury.
    In an action against a railroad for injuries to plaintiff, a small child, when he was scalded by defendant railroad’s employe turning on the injector of an engine without examining the valve of the squirt hose, issue of negligence held for the jury.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 919; Dec. Dig. &wkey;282(10).j
    Error to Court of Civil Appeals of Second Supreme Judicial District.
    Action by Maryland Dickey, by next friend, against the Gulf, Texas & Western Railway Company. To review a judgment of the Court of Civil Appeals (173 S. W. 967), affirming judgment for plaintiff, defendant brings error. Judgments of the Court of Civil Appeals and the district court reversed, and cause remanded to the district court for further trial.
    Ben B. Cain, Sporer & McClure, and J. A. Wheat, all of Jacksboro, for plaintiff in error. D. A. Holman, of Seymour, for defendant in error.
   PHILLIPS, C. J.

This is a companion case to the Gulf, Texas & Western Railway Company v. William Dickey, 187 S. W. 184, this day decided, and is the action by Maryland Dickey against the railway company for injuries sustained by him under the circumstances stated in the opinion filed in the other case, — that being the action brought by his father, the issues in the case being substantially identical with those in the other suit.

In submitting the case for the plaintiff the trial court instructed the jury as follows:

“If you believe from the evidence that Maryland Dickey went into the defendant’s engine with the knowledge and by permission of defendant’s employees in charge of said engine, and if said employees, knew the tender age of Maryland Dickey, and the dangers to which he was exposed in going on said engine, and failed to warn him of such dangers .and knowingly permitted him to go upon said engine, or if you believe from the evidence that defendant’s employee in charge of said engine saw Maryland Dickey in the cab of said engine, in connection with his tender age, and failed to put him out or guard him against danger, and after such discovery defendant’s employee in charge of said engine turned the injector and caused the steam and hot water, to pass from said engine and bum and scald said Maryland Dickey, then the defendant would be liable in damages for his injury, if any.”

In affirming the judgment in the plaintiff’s favor as rendered by the trial court, the honorable Court of Civil Appeals in its opinion recognized this to be virtually a peremptory instruction that the defendant was liable, but declined to consider the defendant’s assignment of error attacking the charge because, as stated in the opinion, a proper bill of exception was not taken to it. The charge was objected to by the defendant through its attorneys before read to the jury; the objection was considered by the court and overruled, all as appears in the record from the defendant’s written filed objections to the charge, and the order or judgment of the court taken from the minutes, distinctly reciting the fact that the objection was made before the charge was read to the jury and was overruled by the court. We held this same procedure to be a substantial compliance with the Act of the Thirty-Third Degislature, chapter 59, page 113, in the other case, in relation to the general charge of the court, and are therefore of opinion that the defendant’s assignment of error, embody-’ ing the same objection presented at the trial was entitled to be considered.

This instruction authorizes a verdict for the plaintiff, wholly without regard to whether Moss’s turning on the injector while Maryland Dickey was in the cab of the engine constituted a negligent act. It cannot be sustained unless, as a matter of law, Moss’s act constituted negligence. As is stated in the opinion in the other case, Moss turned on the injector for the purpose of refilling the engine boiler with water, — the purpose, according to his testimony, for which the injector was used, and in doing this it was that the hot water or steam escaped from the squirt hose and injured young Dickey. This is a portion of Moss’s testimony:

“The water that scalded Maryland Dickey came from the squirt hose. I caused the water to come through the hose by putting on the injector. Previous to the time I turned the injector I bad been coaling. I put on the injector to refill the boiler with water; that is, the purpose for which the injector was used. When I sprinkled the coal I cut off the valve leading to the squirt hose, that is the valve down in front of the boiler. Then I cut off the injector, and left the hose in the' gang-way; the gangway is the passage between the tender and the fire door, just on a level. I got in and out of the engine through the openings on the side; the gang-way is the flooring that leads to the boiler, where the cab comes back on the side; that valve extends out something like 24 inches from the bottom of the floor. When I discontinued sprinkling, the first thing I did was to turn off that valve to the squirt hose; then up and turned off the injector; and after that I went into my coal car to finish coaling. When I camo in there and turned on the injector it was to blow out the boiler or mud valve. In blowing out you use both. You use the injector on while you are blowing, and that pumps water into the boiler. When I came into the cab and turned on the injector Eloyd Bradley and Maryland Dickey were sitting on the seat box. If the valve to the squirt hose had been closed tLere would have been no danger of the accident that occurred. I did not know or have any suspicion that the valve was not closed when I turned on the injector. When the hot water came out and scalded Maryland Dickey I was in the gang-way directly in front of the boiler. The water come out almost in a second’s time after turning on the injector. I had stepped down from the deck, possibly a little higher than this platform to the floor. When the hot water came I grabbed this boy and threw him out. I made an effort to cut the squirt hose off, first. I could not find it. Then 1 grabbed this boy, the smaller boy, that is Maryland Dickey. I did not see the other boy; he got out of the way, and Maryland Dickey climbed down out of the engine himself; after 1 pulled him out of the gang-way, he climbed down and went home. I picked Maryland Dickey up off the floor in front of the seat box. I got some of the hot water in my gloves and in my shoes, but my clothing must have been too thick, I quess. I had on a suit of clothes under my overalls. I got it in my shoes and in the gauntlet of my glove.”

Moss, according to his testimony, did not make an examination of the valve before he turned on the injector, but he stated that this was not customary. At another place in his testimony he reiterated the statement that if the valve was closed, the boys in the engine cab were in no apparent danger, and that when he turned on the injector he knew they were not in danger. Under his testimony, that before he turned on the injector, that is after discontinuing his sprinkling of the coal, he turned off the valve to the squirt hose, and that when he turned on the injector,— which act it was that caused the steam or hot water to come through the hose, “he did not know or have any suspicion that the valve was not closed,” it in our opinion was clearly a question of fact as to whether his act was a negligent one; and the issue of negligence ought therefore to have been submitted to the jury. Since the charge of the court assumed the issue, and in effect instructed the verdict for the plaintiff, the judgment must be reversed. The judgments of both courts are therefore reversed and the cause remanded to the district court for further trial.
      <gc»Por other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes