author: HIGGINS, J.

text:
    GALVESTON, H. & S. A. RY. CO. v. KELLOGG.
    (No. 374.)
    (Court of Civil Appeals of Texas. El Paso.
    Dec. 17, 1914.
    Rehearing Denied Jan. 7, 1915.)
    1. Appeal and Error (§ 501) — Questions Reviewable — Giving and Refusal of Instructions — Exceptions—Record.
    Error in giving and refusing instructions is deemed waived, where the record contains no exceptions, as required by Acts 33d 'Leg. c. 59 (V.eamon’s Sayles’ Ann. Civ. St. 1914, arts. 1954, 19ÍÜ, 1971, 1973, 1974, 1984a, 2061).
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 23OCP2305- Dec.' Dig. § 501.]
    2V Trial (8 412) — Error in Admitting Evidence-Curing by Other Evidence.
    Error in permitting one to give secondary evidence of the contents of an instrument' because notice to produce the original had not Been given is not cured by a cross-examination eliciting the same testimony.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 182, 974-977; Dec. Dig. § 412.]
    3. Appeal and Error (§ 1051) — Harmless Error — Erroneous Admission of Evidence.
    Error in admitting evidence in support of an allegation in the petition, deemed confessed because not denied, is harmless.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4161-4170; Dec. Dig. § 1051.]
    4. Appeal and Error (§ 742) — Questions Reviewable — Assignments of Error — Propositions.
    An assignment of error not supported by a proposition, and not a proposition within itself, will not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    5. Appeal and Error (§ 742) — Questions Reviewable — Assignments of Error — Statements.
    An assignment of error will not be considered where there is no statement subjoined showing the substance of the proceedings and the record relied on to support it, and it is not sufficient to merely refer the court to the parts and pages of the record relied on.
    [Ed. Note. — For other cases, see Appeal and-Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    6. Appeal and Error (§ 548) — Questions Reviewable — Admission of Testimony-Assignment of Error.
    An assignment of error complaining of the admission of testimony cannot be reviewed, where.the court’s attention is not directed to any bill of exceptions taken thereto.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2433-2440; Dec. Dig. § 548.]
    7. Appeal and Error (§ 544) — Assignment of Error — Instructions—Review.
    An assignment of error complaining of an instruction will be overruled, where the court is not referred to any bill of exceptions taken to the instruction.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2412-2415, 2417-2420, 2422-2426, 2428, 2478, 2479; Dec. Dig. § 544.]
    8. Appeal and Error (§ 882) — Questions Reviewable — Invited Error.
    Where a charge added by the court was in response to objections made by a party, error in the charge must be deemed invited by the party, estopping him from complaining.
    [Ed. Note. — For other cases, sed Appeal and Error, Cent. Dig. §§ 3591-3610; Dec. Dig. § 882.]
    9. Appeal and Error (§ 758) — Questions Reviewable — Assignments of Error — Brief — Record.
    An assignment • of error, as copied in the brief, which materially varies from the original in the record, cannot be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3093; Dec. Dig. § 758.]
    10. Damages (§ 130) — Personal Injuries— Excessive Damages.
    An engineer jumped from his engine to avoid a collision and fell to the ground, alighting on his shoulder and neck in a sandy place. He rolled on the ground about 35 feet and was considerably stunned and badly scared. He immediately got up in a dazed condition and began to hunt for his fireman and brakeman, who had also jumped from the engine. A physician testified that the engineer called on him the next day and stated that he was hurt about the back and shoulders, but not hurt much. He consulted another physician who examined him but did not prescribe. Osteopath physicians treated him for several weeks and took some of the soreness and stiffness out of him. He suffered from nervousness which might have been caused from the accident. He made no claim for damages before bringing suit. Reid, that a verdict for $12,500 was so excessive as to show passion or prejudice of the jury authorizing the court to reverse the judgment and remand the case.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 357-367, 370; Dec. Dig. § 130.]
    Appeal from District Court, El Paso County; Dan M. Jackson, Judge.
    Action by W. T. Kellogg against the Galveston, Harrisburg & San Antonio Railway Company. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    Beall & Kemp and Peyton F. Edwards, all of El Paso, and Baker, Botts, Parker & Gar-wood, of Houston, for appellant. Wallace & Gardner, of El Paso, for appellee.

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

   HIGGINS, J.

Kellogg brought this suit to recover damages arising from personal injuries .alleged to have been sustained while operating a locomotive on the joint track of appellant and the Texas & Pacific Railway Company. He alleges that on said date, while employed by the Texas & Pacific Railway Company as a locomotive engineer, his engine collided with the rear end oí a freight train belonging to the defendant, Galveston, Harrisburg & San Antonio Railway Company ; that said collision was caused without any fault or negligence on his part, but was due to the negligence of the employes of the Galveston, Harrisburg & San Antonio Railway Company in stopping their train on the main line between stations on a curve and in such a position that the train could not be discovered by plaintiff while approaching from the east; that the rule of the defendant required that, when a train was stopped on the main line between stations, the same should he protected in the rear by fuses thrown out of the train, by torpedoes, and by flagmen; that the employes in charge of the freight train of defendant, Galveston, Harrisburg & San Antonio Railway Company, failed to properly protect the rear end of said train, as required by the rules, and that by reason thereof plaintiff did not discover said train in time to have avoided a collision. Plaintiff further alleges that at or about the time his train collided with the rear end of said train, in order to save his life or prevent serious injury, he jumped from said engine while same was in motion and was seriously and permanently injured.

The first four assignments complain of the court’s general charge and of the refusal of requested special charges.

We find no exceptions in the record, as required by Acts of Thirty-Third Legislature, p. 113, and the error, if any, must be considered as waived. We express no opinion as' to whether the objections are well taken, which are urged to the general charge, or whether the special charges should have been given.

Error is assigned to the action of the court in permitting Kellogg to testify that he sent a telegram to the defendant’s chief dispatcher from Ft. Hancock, advising that his engine had no headlight, because notice to produce the original had not been given, and secondary evidence of the _ contents of the telegram was, therefore, not* admissible. Appellee contends that this objection was waived because appellant upon cross-examination elicited the same testimony and caused him to repeat the same, and our attention is called to a number of eases supporting this view; but it is sufficient to say they were all overruled by Cathey v. Railway Co., 104 Tex. 39, 133 S. W. 417, 33 L. R. A. (N. S.) 103. The objection should have been sustained, but the erroneous admission of the testimony is regarded as harmless.

In a supplemental petition plaintiff alleged that, 24 miles from the point where the collision occurred, his headlight got out of order; that he was unable to fix it, which fact he wired to defendant’s agents. This allegation was not denied, and was therefore regarded as confessed; and, since the objectionable testimony simply substantiated this confessed allegation, its erroneous admission would appear to be harmless.

The sixth and seventh assignments cannot be considered because: First, they are not supported by propositions as required by the rules, and are not propositions within themselves; second, no statements are subjoined showing the substance of the proceedings in the record relied upon to support the assignments. It is not sufficient to merely refer the court to the parts and pages of the record relied upon. Canal Co. v. South-well, 109 S. W. 435; Walker v. Railway Co., 54 Tex. Civ. App. 408, 117 S. W. 1020; Railway Co. v. Lane, 118 S. W. 847; Railway Co. v. Wafer, 130 S. W. 712; Broussard V. Rice Co., 120 S. W. 587; Lumber Co. y. Chambers, 41 Tex. Civ. App. 632, 95 S. W. 607; Johnson v. Lyford, 9 Tex. Civ. App. 85, 29 S. W. 57; Johnson v. Hulett, 56 Tex. Civ. App. 11, 120 S. W. 257.

The eighth assignment complains of the admission of testimony. Our attention is not directed to any bill of exception taken thereto, and, without same, this matter cannot be reviewed.

The ninth assignment complains of the court’s charge. It is overruled because we are not referred to any bill of exception taken to the portion of the charge complained of.

Furthermore, it would seem from the objections to the charge filed by appellant that the portion to which it now objects was added in response to objections which it made. In such case it must be held that the error was invited and appellant thereby es-topped from complaining.

The tenth assignment, as copied in brief, materially varies from the original in record. For this reason it cannot be considered. Ruth v. Cobe, 165 S. W. 530, and cases there cited. See, also, Edwards v. Youngblood, 160 S. W. 288; Iowa Mfg. Co. v. Walcowich, 163 S. W. 1054; Dees v. Thompson, 166 S. W. 56; Overton v. K. of P., 163 S. W. 1053; Smith v. Bogle, 165 S. W. 35; Lakeside Irr. Co. v. Buffington, 168 S. W. 21 ; Coons v. Lain, 168 S. W. 981.

The eleventh assignment is to the effect that the amount of the verdict is so grossly excessive as to evidence the fact that it was the result of prejudice.

A brief summary of the evidence bearing upon the nature and extent of the plaintiff’s injuries and resulting damage is as follows:

Plaintiff was an engineer in the employment of the Texas & Pacific Railway Company, whose trains were operated at the point of the accident upon the joint track of said company and the Galveston, Harrisburg & San Antonio Railway Company, appellant herein. On the night of November 25, 1912, plaintiff was operating an engine drawing a Texas & Pacific train. His engine ran into the rear end of a freight train of the appellant’s. Plaintiff testified: That when he saw the caboose of the train into which his engine was about to plunge, he jumped from his engine and fell to the ground, lighting on his shoulder and neck in a sandy spot. That he immediately got up in somewhat of a dazed condition. Upon striking the ground, he rolled about 35 feet and was considerably stunned and badly scared. That he really did not know then whether there was anything the matter with him or not. The first thing he did was to begin to hunt for his fireman and a brakeman who had also jumped from the engine. After he found them, he begun to get stiff in his left leg and hip and in the left side of his back, and his neck was stiff and he could not turn it for a long time, and lie is not entirely over it yet. There was a place on his back as big as a fist that felt like a stone bruise. At the time of the accident he made no complaint to any one of being hurt.

Dr. Miller, the physician for the Texas & Pacific Railway Company, testified: That the morning after the wreck he visited plaintiff, talked with him, and asked where he was hurt. Plaintiff said he was hurt about his back and shoulders and the back of his head. That he did not examine his injuries, as he said he was not hurt much, being just a little sore. This testimony of Dr. Miller is not contradicted by plaintiff.

The plaintiff further testified: That he went to see Dr. Miller the next morning after the wreck, who gave him some liniment, some salve, and perhaps some capsules. That he did not go to see Dr. Miller again. That after seeing Dr. Miller he was not satisfied with his condition and went to Dr. Richmond, who examined him, but did not prescribe. That he was not satisfied with what Dr. Richmond said, so, about December 1st, he went from El Paso to Sherman to see Dr. Loving, an osteopath, who was an old friend of his. That he was under Dr. Loving’s treatment six weeks or two months. That he did not give him any medicine but treated him by rubbing. That since coming back to El Paso he has been treated by Dr. Pearce, who is also an osteopath. This treatment took some of the soreness and stiffness out of him. He also saw Dr. Wright and Dr. Higgins, and they did not give him any medicine. These last two ^mentioned doctors he went to see after bringing suit. That he never presented any cLaim on account of the wreck to either the Galveston, Plarrisburg & San Antonio Railway Company or to the Texas & Pacific Railway Company prior to bringing suit, and he was still on the pay roll of the latter company as an employs. That his suit was not filed until March or April, 1913. Prior to this accident he had been a strong, healthy man, except that he was slightly deaf. That he has not been able to do any work since he got hurt. That he had not exactly tried to do any work. That he tinkered around a grocery store a little bit, and after a while got sick and would have to lie down. If he reached up for a can or something on the shelf, a pain would hit him in the back, just like running a knife into him, and he would almost fall on the floor, and the next thing he would get sick at his stomach and take a severe headache and would have to go and lie down until he got over it, and he has not been able to earn any money since he got hurt.

Drs. Wright and Miller were the only physicians called to testify in the case. Miller testified as above indicated, having been called by defendant. Dr. Wright, called by plaintiff, in substance testified: That he first examined plaintiff several months previous to the date of the trial, in November, 1913. He found plaintiff complained of suffering in his back and hip, headaches, sleeplessness, and poor appetite; and of not being able to do anything; That he examined him four or five times, the last occasion the day before his testimony was given, at which time his physical condition was about the same as at first, except he had gained some weight. His hearing was impaired one-half, and there was no .change in his hearing. If, prior to November, 1912, Kellogg was employed as a railway engineer and was strong and healthy, not suffering any with nervousness, and his engine ran into the rear of another engine, and he jumped off just before the collision occurred and rolled down an embankment, he would say that this could be the cause of his nervousness, but not for. his hearing. That, in his opinion, his injuries and condition were permanent — it would be better at times and worse at times. That he did not prescribe for him, except upon one occasion he gave him some medicine for diarrhea. He found him nervous and his nervous system out of order. His nervous reflexes and things of that kind were a little bit exaggerated. He had the appearance of a nervous man. Nervousness was all he discovered. He did not need medicine for these things and did not know of anything that would do him any good. From his examination he did not .discover any injury to his spine — nothing except an apparent tenderness there. His nervousness might just have been from disease, ox it might have been from a fall or blow, or it might have really existed from what they call a condition of neurasthenia. Anything that diverts the mind from what he has it on is good for that condition — a settlement — getting a little money is good for that condition. With plaintiff’s nervous condition, he did not think he could do prolonged physical labor. He could probably do the work for an hour or two, but would give down. When he made his last examination, plaintiff had gained several pounds in weight. He could see no difference in his nervous system. The only thing he discovered was nervousness, which was a form of neurasthenia.

A verdict was returned and judgment rendered for $12,500. A mere perusal of the foregoing testimony, it seems to us, is sufficient to demonstrate that a verdict of $12,-500 in this case is grossly and outrageously excessive. It is so regarded by this court. It is so excessive that it is evident the verdict of the jury was based upon passion or prejudice, rather than a fair consideration of the evidence. In such a case, it is our plain duty to interfere and require a remit-titur or reverse and remand. Freeman v. Grashel, 145 S. W. 695; Railway Co. v. Greenlee, 62 Tex. 344; Railway Co. v. Telegraph Co., 69 Tex. 277, 5 S. W. 517, 5 Am. St. Rep. 45; Railway .Co. v. Greb, 132 S. W. 489; Railway Co. v. Blalack, 128 S. W. 706; Studebaker v. Kitts, 152 S. W. 465. While we are not prepared to say that there is no evidence to show the causal connection between the accident and the nervous condition of the plaintiff, yet it is of a most unsatisfactory nature. The evidence also strongly tends to show negligence upon plaintiff’s part, directly contributing to the accident. Ordinarily the court may safely undertake to remedy an injustice of this kind by requiring a remittitur in such an amount as would meet the exigency of the case; but where the verdict is so grossly excessive as it is in this case, and especially where the evidence is so unsatisfactory on the issue of liability vel non, it is evident that the defendant has not had that fair and impartial trial to which it was entitled, and the ends of justice imperatively demand that the cause be reversed and remanded.

Reversed and remanded.


source: Caselaw Access Project

author: KEY, O. J.

license: Public Domain

text:
    WESTERN UNION TELEGRAPH CO. v. GEST.
    (No. 5377.)
    (Court of Civil Appeals of Texas. Austin.
    Oct. 14, 1914.
    Rehearing Denied Dec. 23, 1914.)
    1. TELEGRAPHS AND TELEPHONES (§ 74) — Failure to Deliver — Instructions.
    An instruction that, if a telegram was delivered to and accepted by defendant for transmission and delivery to plaintiff’s wife and defendant was negligent, as had been defined, in the transmission and delivery, and as the proximate and direct result of said negligence plaintiff’s wife was prevented from being present at her father’s funeral, and that but for such negligence she could and would have been present plaintiff was entitled to recover, was a correct statement of the law.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 77; Dec. Dig. § 74.]
    2. Trial (§ 191) — Instructions — Assumption oe Facts.
    Such instruction was not bad as assuming facts.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 420-431, 435; Dec. Dig. § 191.]
    3. Telegraphs and Telephones (§ 7l) — Mental Anguish — Amount oe Recovery.
    In an action for damages for mental anguish from defendant’s failure to deliver a telegram informing plaintiff’s wife'that her father was dead, whereby she missed attending his funeral, a verdict for $1,050 held not excessive.
    [Ed. Note, — For other cases, see Telegraphs and Telephones, Cent. Dig. § 74; Dec. Dig. § 71.]
    Appeal from District Court, Montgomery County; J. Llewellyn, Judge.
    Action by Charles Gest against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Hume & Hume, of Houston, and Geo. H. Fearons, of New York City, for appellant. W. N. Foster, of Conroe, for appellee.

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

   KEY, O. J.

This is a suit for damages for mental anguish alleged to have resulted from the negligence of the telegraph company in failing to transmit and deliver a telegram to Mrs. Carrie Gest, wife of appellee, informing her of the fact that her father was dead, and that his funeral would occur on the following day. A verdict and judgment for $1,050 were rendered for the plaintiff, and the defendant has appealed.

Appellant assigns error upon the fourth paragraph of the court’s charge to the jury, which reads as follows:

“Now, if you find and believe from a preponderance of the evidence that the telegram set out in plaintiff’s petition was delivered to and accepted by the defendant, the Western Union Telegraph Company, for transmission and delivery to Mrs. Carrie Gest, the wife of the plaintiff, Charles Gest, at the town of Conroe, Tex., at the time and under the circumstances alleged in said petition, and that the defendant was guilty of negligence, as that term has hereinbe-fore been defined, in the transmission and delivery of the same, and that as the proximate and direct result of said negligence, if any, plaintiff’s wife was prevented from being present at the funeral of her father, Edward Y. Hemmen-way, and that but for such negligence she could and would have been present at the funeral of her said father, you will find for the plaintiff; otherwise, you will find for the defendant and so state in your verdict.”

By the propositions submitted under the assignment of error which complains of that charge, appellant contends: (1) That it was misleading, confusing, and not in conformity with the pleadings and evidence; (2) that it assumed that there was evidence to show that the telegram set out in the plaintiff’s petition was delivered to and accepted by appellant for transmission and delivery to Mrs. Gest, there being no evidence to support such assumption; and (3) that the charge referred to authorized the plaintiff to recover, although the evidence failed to show a contract for the benefit of Mrs. Gest, and failed to show negligence As affecting Mrs. Gest. We overrule all of the objections referred to, and hold that the charge complained of embodied a correct, though terse, application of the law to the evidence.

The other assignments complain because the court refused to instruct a verdict for the defendant, and assail the verdict as being unsupported by the testimony. The verdict is large, but we cannot say that it is so large as to justify the conclusion that the jury was actuated by an improper motive. The verdict of the jury involves findings in favor of the plaintiff on all the issues submitted in the charge above quoted, and, there being testimony to support such findings, we so find the facts.

No error being shown, the judgment is affirmed.

Affirmed.


author: HARPER, C. J.

text:
    SIMMONS et al. v. ARNIM et al.
    (No. 370.)

    (Court of Civil Appeals of Texas. El Paso.
    Dec. 3, 1914.
    Rehearing Denied Jan. 7, 1915.)
    1. Infants (§ 78) — Actions Against — GUARDIAN AD LlTEM.
    In a suit against infants cited to appear and answer, the court, in the absence of a general guardian of their estate, must, as required by Rev. St. 1911, art. 1942, appoint a guardian ad litem.
    [Ed. Note. — Eor other cases, see Infants, Cent. Dig. §§ 195-207, 209; Dec. Dig. § 78.]
    2. Infants (§ 116) — Actions Against — Guardian ad Litem — Compensation — (JO
    Under Rev. St. 1911, art. 1942, authorizing the court to allow reasonable compensation to a guardian ad litem for infant defendants, and article 2048, authorizing the court to tax costs against either party, the court may tax, as costs against successful infant defendants, the compensation allowed their guardian ad litem.
    [Ed. Note. — For other cases, see Infants, Cent. Dig. §§ 333-330; Dec. Dig. § 116.]
    3. Infants (§ 112) — Judgment—Collateral Attack.
    A judgbaent, though erroneous for taxing as costs against successful infant defendants the compensation allowed their guardian ad litem, is voidable only, and not subject to collateral attack.
    [Ed. Note. — For other cases, see Infants, Cent. Dig. § 320; Dec. Dig. § 112.]
    4. Infants (§§ 83, 116) — Actions Against— Guardian ad Lctem — Allowance of Compensation.
    Where infant defendants were cited to appear and answer, and a guardian ad litem was appointed for them, the court could fix the compensation of the guardian and tax the same against the infant defendants obtaining a judgment, without representation by the infants; for the allowance was not a separate cause of action requiring further representation or service on the infants.
    [Ed. Note. — For other cases, see Infants, Cent. Dig. §§ 232-235, 333-336; Dec. Dig. §§ 83, 116.]
    5. Infants (§ 83) — Actions Against — Guardian ad Litem — Allowance of Compensation.
    Allowance of compensation to a guardian ad litem for infant defendants having no general guardian of their estate may be made in part at the term of rendition of judgment and in part at a subsequent term after affirmance of the judgment on appeal, though the better practice is to await the final determination of the suit before fixing compensation.
    [Ed. Note. — For other cases, see Infants, Cent. Dig. §§ 232-235; Dec. Dig. § 83.]
    6. Infants (§ 114) — Actions Against — Allowance of Compensation to Guardian ad Litem — Judgment—Enfobcement.
    A judgment against infant defendants for compensation to their guardian ad litem may be collected by execution where there is no guardianship pending.
    [Ed. Note. — For other cases, see Infants, Cent. Dig. §§ 323, 325; Dec. Dig. § 114.]
    7. Execution (§ 81) — Requisites—Names of Pasties.
    Where the names of parties defendant out of whose property the money was to be made appears on the face of the execution, and the name of plaintiff in the judgment appears on the back thereof as an indorsement, the execution sufficiently shows the names of the parties.
    [Ed. Note. — For other cases, see Execution, Cent. Dig. § 177; Dec. Dig. § 81.]
    8. Execution (§ 82) — Description of Judgment-Sufficiency.
    An execution which recites the recovery of a judgment on a designated date and term of court for a specified sum, and a further judgment recovered at a subsequent term and on a date specified for a sum specified, sufficiently describes the judgments.
    [Ed. Note. — For other cases, see Execution, Cent. Dig. § 178; Dec. Dig. § 82.]
    9. Execution (§ 84) — Description of Property — Sufficiency.
    An execution on a judgment in trespass to try title which describes the property as that recovered in the suit conforms to the judgment, which ordered that execution issue only against the property recovered in the suit, so as to make the description of the property therein a part of the execution, and the execution sufficiently describes the property to pass title on execution sale.
    [Ed. Note: — For other cases, see Execution Cent. Dig. §§ 177, 180, 204; Dec. Dig. § 84.]
    Error to District Court, Harris County;. Chas. E. Ashe, Judge.
    Action by Susan S. Simmons and others-against F. F. Arnim and others. There was a judgment for defendants, and plaintiffs bring error.
    Affirmed.
    Locke & Locke, of Dallas, for plaintiffs in-error. Taliaferro & Taliaferro, E. P. & O. K. Hamblen, and Baker, Botts, Parker & Garwood, all of Houston, for defendants in error.

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

       writ of error pending in Supreme Court.

   HARPER, C. J.

This suit was brought by Susan S. Simmons and husband, J. W. Simmons, Mary C. Langley and husband, W. G. Langley, and William B. Gregg, on March 13, 1911, in trespass to try title, against F. F. Arnim, E. B. Parker, trustee, Andrew Dow, Kate Scanlan, Henry Albrecht, S. Taliaferro, and Rosalie H. Taliaferro, Robert Talbot, Max Murray, and Adrian Bailey, to recover the east part of block one of Darius Gregg’s First addition to. the city of Houston. Robert Talbot, Max Murray, and Adrian Bailey, tenants in possession, disclaimed. The other defendants answered by pleas of not guilty and limitations of three, five, and ten years, and by a special plea that the property had been acquired by them through a sale under execution on a judgment against the plaintiffs for a fee allowed to a guardian ad litem for the plaintiffs in a suit styled Jacob Chase v. W. B. Gregg et al., in the district court of Harris county; that the fee was properly allowed to the guardian ad litem; that it was properly taxed against the plaintiffs; that judgment was properly rendered against them accordingly; that the execution in question properly issued on such judgment; that the land was seized and sold thereunder; that it sold for a fair price; and that, if there were any irregularities in the sale, the court should confirm the same. The validity of such proceedings was the primary issue in the case. Each of the three plaintiffs requested a peremptory instruction in his favor for a one-third interest in the land, hut the court refused the requests, and, instead, instructed the jury to return a verdict for the defendants. Judgment was entered accordingly; the plaintiffs’ motion for a new trial was overruled; and the plaintiffs brought the case to this court by writ of error.

Divested of all immaterial matters, the plaintiffs show title t'o the land in themselves through proper muniments of title and by 'inheritance from ancestors, unless divested from them by a sale under execution issued, on a judgment in favor of S. Taliaferro, guardian ad litem, in the suit of Jacob Ohase v. W. B. Gregg et al. The essential facts surrounding that judgment and leading up to the issuance of execution and sale thereunder, to the proper determination of the issues presented here, are as follows:

August 23, 1893, Jacob Chase filed suit against Dr. Lipscomb and wife and the plaintiffs in this suit, who were then minors, to quiet the title to certain property, including that in question; all the parties served by citation. S. Taliaferro was appointed guardian ad litem to represent the minors, and did represent them in the trial of the cause. The suit resulted' in judgment for the minors. The trial court, in the same judgment that decreed the lands to the minors, made an allowance of $1,200 fee to guardian ad litem, and gave judgment therefor, and directed that -execution issue for same against the property recovered only. After the case had been appealed and affirmed, the trial court entered an order which determined that the first allowance was’ insufficient, and allowed $500 additional to be paid out of the estate decreed to them in the suit. Thereafter execution issued, was served, and the property sold to T. W. House for $1,700, its fair value,- who took title for S. Taliaferro, as a convenient method of making the land stand as security for indebtedness of Taliaferro to House, and the amount was credited on the execution.

Appellants, by theirs first, second, and third assignments, assert that the trial court erred in its instruction for defendants:

First. Because the undisputed evidence showed that the plaintiffs owned and were entitled to the possession each of an undivided one-third interest' in the land in suit, unless the title had been divested from them by the sale under the , execution issued on the judgments in favor of Taliaferro, guardian ad,litem.

(a) Title will not be divested by an execution sale when the statutes expressly or impliedly forbid the enforcement of thfe judgment that way, and, the judgment being against minors, it should have been collected only through a guardianship, and not by service of a sale under execution.

(b) Title will not be divested by execution sale unless the judgment wherein the execution issued be valid and authorize the execution, and unless the execution be in conformity with the statutory requirements.'

(e) A single execution drawing its authority jointly from two judgments is void if either judgment is void.

(d) An execution issued for a substantially greater sum than that legally imposed by judgment is void, and a sale thereunder is ineffectual, especially if the sheriff, in performing the excessive command, seizes and sells more property than the judgment warrants. ®

(e) A judgment rendered against minors when they are not, either voluntarily or compulsorily, before the court, and are not represented by guardian or guardian ad litem, is void. The citation served upon the minors at the commencement of the suit was not sufficient to retain them for the purpose of these judgments, and, the guardian ad litem being adversely interested to them, they should have been cited or been represented by another guardian ad litem.

(f) The execution was .not in conformity with the requirements of the statutes, in that it did not correctly ‘ describe the purported judgment or judgments on which it was issued, or the parties to the same, and did not set forth the property to be sold for the satisfaction thereof. Seventh, eighth, and ninth assignments.

The suit of Chase v. Gregg having been filed, and the minors cited to appear and answer, in the absence of a guardian of their estate, it became the duty of the court in which the cause was pending to appoint a guardian ad litem. Article 1942, Revised Civil Statutes; Duke v. Wheeler, 28 Tex. Civ. App. 391, 67 S. W. 439; Wallis v. Stuart, 92 Tex. 568, 50 S. W. 567.

And by the same article it is the duty of the court to decide upon a reasonable fee for his services, and tax it as a part of the costs of the suit, and the costs may be taxed against either party (article 2048, Revised Civil Statutes), and it was not error to tax this fee as an item of costs against the successful party (Ashe v. Young, 68 Tex. 123, 3 S. W. 454; Glasscock v. Stringer, 33 S. W. 677; Holloway v. McIlhenny, 77 Tex. 657, 14 S. W. 240).

But, if it was error in this case to tax the costs against the successful party, the judgment is voidable only, and not subject to collateral attack. Alston v. Emmerson, 83 Tex. 231, 18 S. W. 566, 29 Am. St. Rep. 639.

Appellant urges that, because the minors were not represented in the particular matter of adjudging the costs against them, the judgment is a nullity. This was not such a distinct and separate cause of action as required any further representation or service upon the minors. The minors being parties to the suit of Chase v. Gregg, their property was lawfully chargeable with any costs adjudged against the’m, and the law clothed the court with the power to determine what costs were proper to be taxed, and against whom such should be charged; and the court is by law charged with this duty, independent of any action upon the part of any party to the suit, and with the power to enter its decree in such form that their collection may be enforced.

The court is peculiarly and particularly in the position to make this judicial determination by reason of the fact that he is thoroughly familiar 'with the nature, extent, and value of the services performed (Japhet v. Bullen, 153 -S. W. 1188), and, there being nothing in the statute requiring it to be done at any particular time, it may be done at any time at which the value of the services may be determined. The court was certainly in a position to determine the value of the services of the guardian ad litem up to and including the actual trial of the cause, and there is no good reason why his action in fixing $1,200 for services performed at that time was erroneous. But, again, appellant urges that the $500. additional fee determined and taxed at a subsequent term was without authority, and the judgment entered therefor is void, because the court- lost control of the matter after adjournment of that term of court. The act of fixing the fee for the guardian ad litem is a judicial act required of every court by law, confined to the pending suit, and is in no sense a determination of any issue raised in the suit; therefore does not come strictly under the head of amending or adding to a judgment entered or retaxing costs, for the fee does not become costs in the suit or subject to formal decree until it has been fixed and taxed by the court. It would seem that the better practice in such cases would h’e to await the final determination of the suit before fixing the fee, because then only would the- court properly decide what a reasonable compensation would be. But wé see no reason why this additional amount was not properly determined and taxed at the time it was done. At least there was no abuse of discretion, and, if there was, it cannot be taken advantage of by collateral attack.

Should the judgment have decreed that the amount be paid through a guardianship proceeding in the county court, instead of directing that execution issue against the property of the minors?

If there had been a guardianship pending, there would be no question of the correctness of appellant’s proposition, for then the guardian must be made a party to the suit, but there is no provision in the law requiring a guardian, or which impliedly requires one. There is no provision in our laws, as in cases of executors and administrators, that judgments against minors should not direct execution to issue, or that they should be classified and paid currently with other claims of the same degree; in fact, as stated, nqthing to indicate that judgments against minors without guardians of their estate or the time rendered are not to be collected by execution as in other cases. Adriance v. Brooks, 13 Tex. 280.

If appellant's contention is correct that the judgment could only be enforced through a guardianship proceeding, there are many supposable cases that would leave the court without remedy to enforce its decree: Suppose no Texas court had jurisdiction; suppose some court in Texas had jurisdiction, but there was no one who could or would file the application in form as required by article 40.61, Rev. Civ. Stat., etc.

The judgments entered are valid, and were subject to be enforced by execution as provided therein; so this brings us to the last question raised by the record: “Was the execution by virtue of which the sale was made in conformity with the requirements of the statutes?” Appellant charges that it was not for the reasons: (1) It does not set forth the names of the parties; (2) the judgments are not accurately described therein; (3) the judgment commanded the sale of particular property for the satisfaction thereof, and the execution was- not so framed.

• The execution is as follows:

“The State of Texas to the Sheriff or any Constable of Harris County — Greeting:

“Whereas at the April term, 1894, of the honorable district court of Harris county, Tex., on the 14th day of April, 1894, S. Taliaferro, as guardian ad litem, recovered a judgment against the minors William Bowen Gregg, Susan B. Gregg, and Carrie May Gregg for the sum of twelve hundred dollars ($1,200.00), and at the June term, 1896, of said court on June 1, 1896, recovered a further judgment against said minor defendants for the additional sum of five hundred dollars ($500.00), aggregating seventeen hundred dollars ($1,700.00) dollars and all costs of suit, which said defendants ought now to pay: Now, therefore, you are hereby commanded that, of the goods, chattels, lands, and tenements of the said William Bowen Gregg, Susan B. Gregg, and Carrie May Gregg recovered in this suit, you make or cause to be made the said sum of seventeen hundred ($1,700.00) dollars with 6 per cent, interest on twelve hundred ($1,200.00) dollars from April 14, 1894, 6 per cent, interest on five hundred ($500.00) dollars from June 1, 1896, until paid, and the further sum of one BO/ioo ($1.50), by way of costs, together with your legal fees and commission for collecting the same. Herein fail not to make due execution and return of this writ within 60 days from this date.
“Given under my hand and seal of office at Houston this 8th day of Septembex-, 1$96.
“[Signed] J. R. Waties, “Clerk District Court Harris County, Texas, “By C. G. Vinson, Deputy.”
Indorsement:
“#1§659. Jacob Chase v. William Bowen Gregg et al. Execution issued September 8, 1896. J. R. Waties, Clk. D. C. H. C., by C. G. Vinson, Deputy.
“Dated Judg. 14 day April, 1894.
1 “ .June, 1896.
“Bill costs. Clerk’s costs, $1.50.”

The name of the plaintiff in the judgment does not appear upon the face of the instrument, but does appear upon the back as an indorsement. The names of the parties defendant out of whose property the money is to he made do appear upon the face of the executions, which is sufficient. Collins v. Hines, 100 Tex. 304, 99 S. W. 400.

The execution copied aboye shows that the judgments were sufficiently described, so not subject to the second .objection. As to the third objection, the execution was for specific property, to wit, “goods, * * * lands, * * * etc., of the said Inamed all defendants] * * * recovered in this suit.” The words “recovered in this suit” is a sufficient reference to the judgment entered to make the description of the property therein a part of the execution, and thereby constituted a sufficient description to pass the title on the execution sale. Focke et al. v. Garcia, 41 S. W. 187.

Finding no error in the record, the judgment is affirmed.


author: JENKINS, J.

text:
    STATE MUT. FIRE INS. CO. OF TEXAS v. CATHEY et al.
    (No. 5415.)
    (Court of Civil Appeals of Texas. Austin.
    Nov. 25, 1914.)
    1. Insurance (§ 660) — Fire Insurance — Personal Property — Value—Evidence.
    Where there was no market value of personalty covered by a fire policy, stipulating that insurer should not be liable beyond the actual cash value at the time of loss, the intrinsic value in the event of loss could be shown.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1695; Dec. Dig. § 660.]
    2. Appeal and Error (§ 1170) — Harmless Error — Rulings on Evidence.
    Where a party introduced the affidavit of a witness supporting a motion by the adverse party for a continuance, error in permitting the adverse party to introduce the affidavit of his attorney forming part of the motion was not reversible, within Courts of Civil Appeals rule 62a (149 S. W. x), prohibiting the reversal of any judgment for error, not prejudicing the rights of the party complaining.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4032, 4066, 4075, 4098, 4101, 4454, 4540-4545; Dec. Dig. § 1170.]
    Appeal from Brown County Court; Frank H. Sweet, Judge.
    Action by Cora Cathey and another against the State Mutual Fire Insurance Company of Texas. From a judgment for plaintiffs, defendant appeals.
    Affirmed.
    Arch Grinnan, of Brownwood, for appellant. E. C. Harrell, of Brownwood, for ap-pellees.

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

   JENKINS, J.

This is the second appeal in this case. See Fire Ins. Co. v. Cathey, 153 S. W. 935. Appellees brought suit to recover for the loss of secondhand furniture, and obtained judgment. No complaint is made as to the amount of same. The policy provides:

“This company shall not be liable beyond the actual cash value of the property at the time any loss or damage occurs, and the loss or damage shall be ascertained or estimated according to such actual cash value.”

Appellant assigns error upon the admission of the testimony of J. M. Cathey, the husband of appellee Mrs. Cora Cathey, as to the intrinsic value of a portion of the. goods destroyed, and as to the market value of others of such goods. We overrule these assignments, for the reason that it sufficiently appears that there was no market value as to the first class above referred to, and that the witness was familiar with the market value as to the latter class. Appellant introduced no testimony to contradict the testimony of the witness as to such values, which, it is apparent, it could easily have done had such statement as to value been incorrect.

Appellant assigns error upon permitting appellee to introduce in evidence the affidavit of E. C. Harrell, the attorney for the plaintiff, filed herein at a former term of the county court, resisting defendant’s motion for a continuance. We do not see the materiality of this testimony, but hold that it was not reversible error, inasmuch as it was a part of said motion which was supported by the affidavit of J. M. Cathey, and appellant introduced said affidavit of the witness Cathey.

We also fail to see the relevancy of appellant’s abandoned pleading, which was introduced in evidence by appellee; but we do not see how" this could have injuriously affected appellant. We think this case comes clearly within the spirit of rule 62a (149 S. W. x), which requires that:

“No judgment shall be reversed on appeal and a new trial ordered in any cause on the ground that the trial court committed an error of law in the course of the trial, unless the appellate court shall be of opinion that the error complained of amounted to such a denial of the rights of appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the ease, or was such as probably prevented the appellant from making a proper presentation of the case to the appellate court.”

For the reasons stated, the judgment of the trial court is affirmed.

Affirmed.


text:
    GARRETT v. GULF, C. & S. F. RY. CO.
    (No. 5410.)
    (Court of Civil Appeals of Texas. Austin.
    Nov. 11, 1914.
    Rehearing Denied Jan. 6, 1915.)
    1. Appeal and Error (§ 544) — Bill op Exceptions — Necessity—Instructions.
    Where no bill of exceptions was taken to the court’s action on instructions, assignments of error thereon could not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2412-2415, 2417-2420, 2422-2426, 2428, 2478, 2479; Dee. Dig. § 544.]

      2.New Trial (§ 104) — Newly Discovered Evidence — Cumulative Evidence.
    In an action for injuries to a child caused by the jerking of a train, witnesses having testified as to the jerking and its effect, and of hearing a child crying, and of remarks of passengers, it was not an abuse of discretion to refuse a new trial for testimony of a witness that the jerk woke him up, and he asked what was the matter, and some one said they came near having a wreck, and that he heard a child crying.
    [Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 218-220; Dec. Dig. § 104.]
    Appeal from District Court, Brown County; John W. Goodwin, Judge.
    Action by Brown Garrett against the Gulf, Colorado & Santa Fé Railway Company. From a judgment for defendant, plaintiff appeals.
    Affirmed.
    Arch Grinnan, of Brownwood, for appellant. Terry, Cavin & Mills, of Galveston, G. N. Harrison, of Brownwood, J. W. Wayman, of Galveston, and Lee & Lomax, of Ft. Worth, for appellee.

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

   JENKINS, J.

All of appellant’s assignments of error except one relate to the charge given and the charges refused. As no bill of exceptions was taken to the action of the court in giving and refusing charges, these assignments of error cannot be considered. Insurance Co. v. Rhoderick, 164 S. W. 1067; Railway Co. v. Tomlinson, 169 S. W. 217.

The remaining assignment of error is as to the action of the court in overruling the motion for new trial, the grounds of said motion being on account of newly discovered testimony. This suit was for alleged injury to a child by reason of unusual jerking of the train, causing the child to be thrown from its seat. Plaintiff’s witnesses, Mrs. Garrett, mother of the child, Jim Reese, and W. L. Hester, testified to such jerking of the train. A number of witnesses testified that there was no jerking of the train. We think the newly discovered testimony of White was cumulative. We quote the testimony of plaintiff’s witness Hester, as follows:

“That he was a passenger on the train of the Gulf, Colorado & Santa Fé Railway Company, coming from Temple to Brownwood, on the evening of July 28, 1913; that he saw Mrs. Garrett on the train, and just before he saw her the train made a lunge or jerk; that it like to have jerked him off the seat, and that he heard a child crying; that he heard one fellow say that if they jerked many licks like that it would tear the coach up.”

The proposed testimony of the witness White, as set out in the motion, is as follows:

“That he was a passenger on the train of the Gulf, Colorado & Santa Fé Railway Company, coming from Temple to Brownwood, on the evening of July 28, 1913; that just before we reached Goldthwaite, Tex., the train gave a very hard jerk, and pitched me forward in my seat, and woke me up, and I asked what was the matter, and some one said they ‘came durn near having a wreck.’ All of these remarks were made immediately after said jerk. I heard a child crying in the coach behind the coach I was in.”

For the reason that • this testimony was merely cumulative, the court did not abuse its discretion in refusing to grant a new trial. The judgment of the trial court is affirmed.


author: MOURSUND, J.

text:
    SAN ANTONIO, U. & G. RY. CO. v. STOREY et al.
    (No. 5381.)
    (Court of Civil Appeals of Texas. San Antonio.
    Dec. 23, 1914.
    On Motion for Rehearing, Jan. 13, 1915.)
    1. Carriers (§ 228) — Carriage of Live Stock — Presumptions.
    Where the shipper accompanied cattle and was as well placed as the carrier to know the cause of injuries, there is no room for the presumption that the injuries were caused by the delivering, instead of the initial, carrier.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 957-960; Dec. Dig. § 228.]
    2. Appeal and Error (§ 930) — Review—Presumptions.
    Where the verdict in an action against a carrier for injuries to a shipment of live stock was found pursuant to a general charge, it cannot be presumed that the entire amount was awarded on account of delay and rough handling, so as to sustain an assignment that the award on that issue, which was properly submitted to the jury, was excessive.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3755-3761; Dee. Dig. § 930.]
    3. Costs (§ 90) — Award op Costs.
    Where plaintiff recovered against only one of the defendants, the costs of the successful defendant should be assessed against plaintiff.
    [Ed. Note. — For other cases, see Costs, Cent. Dig. §§ 350-355; Dec. Dig. § 90.]
    4. Appeal and Error (§ 263) — Necessity of Exception — Instructions.
    Under Rev. St. art. 2061, as amended by Acts 33d Leg. c. 59, assignments to the refusal to give special charges cannot be reviewed when no exceptions were reserved.
    [Ed. Note. — For other cases, see Appeal and Error. Cent. Dig. §§ 1516-1523, 1525-1532; Dec. big. § 263.]
    5. Carriers (§ 227) — Injuries to Live Stock —Contributory Negligence — Pleading-Necessity.
    The contributory negligence of a shipper of live stock must be pleaded to be relied on.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 232, 953-956; Dec. Dig. § 227.]
    6. Carriers •(§ 217) — Carriage op Live Stock — Contributory Negligence.
    Where a carrier failed to furnish cars for a shipment of cattle at the time agreed upon, and the nearest watering place was 2% miles away, the shipper was not guilty of contributory negligence because he allowed his cattle to remain in the pens, where the carrier’s agent told him the train was liable to come at any time.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 931; Deo. Dig. § 217.]
    7. Appeal and Error (§ 207) — Presentation op Grounds op Review in Court Below —Necessity.
    Where no ruling of the court on the question of objectionable argument was asked until motion for new trial, the matter cannot be considered on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 1500; Dec. Dig. § 207.]
    8. Appeal and ErRob (§ 724) — Assignments op Error — Sufficiency.
    Despite Rev. St. art. 1012, which, as amended by Acts 83d Leg. e. 136, requires great liberality in consideration of assignments of error, an assignment that a verdict was erroneous because the damages were too speculative and remote, not being based on the evidence, is too general for consideration, in view of Rules 68 (142 S. W. xxii) and 71a (145 S. W. vii) for the district courts, and Rules 24, 25, and 26 of the Courts of Civil Appeals (142 S. W. xii), which require particularity in assignments.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2997-3001, 3022; Dee. Dig. § 724.]
    On Motion for Rehearing.
    9. Costs (§ 237) — Award oe Costs.
    Where the judgment improperly awarded plaintiffs costs to which they were not entitled, and plaintiffs failed to correct it after motion for new trial, the costs of an appeal on which that portion alone of the judgment for plaintiffs was reversed must be assessed against them.
    [Ed. Note. — For other cases, see Costs, Cent. Dig. §§ 906, 929; Dec. Dig. § 237.]
    10. Appeal and Error (§ 748) — Objections to Assignment of Error.
    After an assignment has been considered and sustained, a party cannot urge its insufficiency.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3058-3064; Dec. Dig. § 748.]
    Appeal from Uvalde County Court; T. M. Milam, Judge.
    Action by H. C. Storey and another against the San Antonio, Uvalde & Gulf Railway Company and another. From a judgment for plaintiffs, defendant named appeals.
    Modified and affirmed.
    Williams & Hartman, of San Antonio, for appellants. Wilson, Dabney & King, of Houston, G. B. Fenley, of Uvalde, W. B. Teagar-den, of San Antonio, and Martin & Martin, of Uvalde, for appellees.

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

   MOURSUND, J.

H. C. Storey and L. E.

Miller sued appellant and the International & Great Northern Railway Company to recover damages in the sum of $779.51, alleged to hare been suffered by plaintiffs by reason of appellant’s failure to furnish cars to load 157 head of cattle at 5 a. m. on July 23, 1913, thus causing the cattle to be kept in appellant’s pens until 4:10 p. m. on said July 23d, and in failing to furnish facilities for watering said cattle, and because of delay in transporting the cattle and rough handling thereof, by both defendants, which acts were alleged to constitute negligence, and to have caused the cattle to arrive upon the market at Ft. Worth one day later than they would have arrived had no delays occurred, and also caused the death and injury of some of the cattle, as well as an excessive shrinkage in the weight of all of the cattle. The petition contained specific allegations concerning what the market value of the cattle would have been had they arrived upon the market one day earlier and suffered no damage or excessive shrinkage, and also the prices which such cattle actually brought when sold; but it is unnecessary to state the details of the allegations. The trial resulted in a verdict and judgment in favor of plaintiffs against appellant for $600 and in favor of the International & Great Northern Railway Company.

The first assignment attacks the judgment as being contrary to the evidence, the contention being that the undisputed evidence showed that at the time the cattle were delivered by appellant to the International & Great Northern Railway Company they were in good condition, and that when they reached their destination, Ft. Worth, they were in a damaged condition, for which reason the judgment against appellant for all damages and in favor of the-International & Great Northern Railway Company was erroneous. The only proposition urged is as follows:

“When live stock are delivered to an initial carrier in good condition and are delivered by the last carrier in a damaged condition, the presumption is that the damage was caused by the delivering carrier.”

This proposition does not apply in this case because the shipper accompanied the cattle and was in as good a position as the carriers, to show where the damage occurred. T. & P. Ry. Co. v. Scoggin & Brown, 40 Tex. Civ. App. 526, 90 S. W. 521; T. & N. O. Ry. v. Gray, 45 Tex. Civ. App. 208, 99 S. W. 1125. Appellee Miller’s testimony was to the effect that the cattle were in bad condition when they reached San Antonio, owing to the fact that they were left in appellant’s pens for about ten hours after the agreed time when they were to be loaded, and had become hot and thirsty and were loaded without being watered. The assignment is overruled.

By the second assignment it is contended that the verdict is contrary to the chalrge of the court; the contention being that the charge only permitted the recovery of the difference between the market value of the cattle at the time and in the condition they did arrive, and at the time and in the condition they should have arrived at Ft. Worth had there been no negligent delays and rough handling, and that, if the jury based its verdict upon said charge, the verdict is erroneous because the same was in favor of the International & Great Northern Railway Company, which was the delivering carrier. We are unable to determine from the assignment, considered in connection with the proposition and statement, what appellant’s exact contention is with respect to the evidence; whether the presumption discussed under the first assignment is relied upon, as is indicated by the reference to the fact that the International & Great Northern Railway Company was the delivering carrier, or whether it is contended that there is no evidence oí delay and rough handling and therefore no basis for a verdict upon said charge, or whether it is contended that the verdict is excessive if allowed only for such delay and rough handling as was shown by the evidence. We need not further discuss the presumption relied upon in the first assignment of error. We think there is evidence suffi-eient to go to the jury on the issue of rough handling and delay, and besides no objection was made to the charge. As to the verdict being excessive for delay and rough handling, it need only be said that in another para-; graph of the charge the court submitted the issue whether appellant was negligent in failing to furnish cars and in failing to furnish facilities for watering the cattle, and whether the cattle were damaged thereby. The verdict being found pursuant to a general charge, it is impossible to say that the entire amount was awarded on account of delay and rough handling during the transportation of the cattle. We are unable to say that any error in the verdict is pointed out in the second assignment, and the same is therefore overruled.

The third assignment attacks the judgment because all costs are assessed against appellant, including those incurred by the International & Great Northern Railway Company, which recovered a judgment against plaintiffs below. The costs incurred by the International & Great Northern Railway Company should have been adjudged against plaintiffs, and not against appellant. I. & G. N. Ry. Co. v. Hall, 78 Tex. 657, 15 S. W. 108; Texas Cent. Ry. Co. v. Shirley, 130 S. W. 687. This is not a case where the costs are properly adjudged against a party, and the contention made that certain items so adjudged are illegal or improperly taxed under such judgment, but a case in which the judgment itself is attacked, and not what is done thereunder. The cases cited by appellant are not in point. The opinion in Zarate v. Villareal, 159 S. W. 874, referred to by appellant, was written upon a motion to retax costs which this court had adjudged against appellees, and was held to come too late for the reasons stated in the opinion. Our judgment upon the question of costs was attacked by motion for rehearing, which was overruled, and the motion to retax related to the items of cost taxed against appellees under our judgment. Such opinion in no way conflicts with our holding in sustaining this assignment of error.

The fourth and fifth assignments complain of the court’s refusal to give special charges. No exceptions to such rulings are shown to have been taken, so the assignments must be overruled. Rev. Stat. 1911, art. 2061, as amended by Act of 33d Leg. p. 114; Mutual Life Ins. Ass’n v. Rhoderick, 164 S. W. 1067; Heath v. Huffhines, 168 S. W. 974; Taylor v. Butler, 168 S. W. 1004; Railway v. Tomlinson, 169 S. W. 217.

The sixth assignment contends that the verdict is contrary to the law and the evidence, in that the evidence shows that Storey and Miller were guilty of contributory negligence in failing to water the cattle at La Pryor. Axapellant did not plead contributory negligence on the part of the shippers, and the assignment must therefore be overruled. T. & P. Ry. Co. v. Henson, 56 Tex. Civ. App. 468, 121 S. W. 1127. However, it appears from Miller’s testimony that the nearest place at which the cattle could have been watered was 2y2 miles from the pens, and that the agent told him the train would be likely to come at any time.

The seventh assignment, as copied in the brief, is defective in form, but under article 1612, R. S. 1911, as amended by the last Legislature (Acts 33d Leg. c. 136), we are probably required to consider the same. The assignment must be overruled because so far as is disclosed by the bill of exception, no ruling of the court may have been invoked or exception reserved in regard to the objectionable argument until the motion for new trial was filed. Railway v. Lester, 84 S. W. 401; Traction Co. v. Tates, 39 Tex., Civ. App. 114, 88 S. W. 283; Fordtran v. Stowers, 52 Tex. Civ. App. 226, 113 S., W. 631; Jones v. Wright, 92 S. W. 1010.

By the eighth assignment it is contended that the verdict is erroneous “because the amount of damage assessed, being $600, was too speculative and remote, not being based upon the evidence in the case.” . This assignment of error is submitted as a proposition, and no other proposition accompanies it. The statement and argument appear to be directed to the issue whether the verdict is excessive. Assignments of error which complain of a verdict as excessive, without pointing out in what respect, under the facts, it is contended to be excessive, have often been held too general to require consideration. Railway v. Miller, 124 S. W. 109, and cases therein cited; City of Galveston v. Devlin, 84 Tex. 319, 19 S. W. 395; Railway v. Scarbrough, 104 S. W. 414. The assignment filed by appellants in this case which is copied from the motion for new trial is entirely boo general, and, we think, should not be considered even under the amendment to article 1612 adopted by the last Legislature. Rule 68 (142 S. W. xxii) and 71a (145 S. W. vii) for District Courts; Rules 24, 25, and 26 for Courts of Civil Appeals (142 S. W. xii); Salliway v. A. O. U. W., 164 S. W. 1041, and eases therein cited.

The judgment against appellant in favor of the International & Great Northern Railway Company for costs of suit is reversed and here rendered for appellant. As no complaint is made by said International & Gireat Northern Railway Company of the failure of the court to grant it a judgment for costs’ against Storey and Miller, we are powerless to correct the judgment in this respect, and said railway company will lose its costs incurred in the trial court, and the costs of this appeal must also be assessed against it. In all other respects the judgment of the trial court is affirmed.

On Motion for Rehearing by International & G. N. Ry. Co.

We erred in treating the judgment as one in favor of the International & Great Northern Railway Company against appellant for costs. The judgment complained of by appellant was in favor of Storey and Miller against appellant for all costs expended, without excepting those adjudged in favor of the International & Great Northern Railway Company, which are properly chargeable against Storey and Miller. The motion for rehearing is granted, our former judgment set aside, and judgment will be rendered affirming the judgment of the trial court in all respects, except that Storey and Miller shall only recover of appellant all costs incurred in the trial court other than those incurred by reason of the International & Great Northern Railway Company being a party to said suit. As Storey and Miller neglected to have the judgment corrected upon the filing of the motion for new trial, the costs of appeal will be taxed against them. Their contention that the assignment o'f error should not be considered comes too late, after such assignment has been considered and sustained.


author: RICE, J.

text:
    REA v. FIELDS et al.
    (No. 5421.)
    (Court of Civil Appeals of Texas. Austin.
    Nov. 25, 1914.
    Rehearing Denied Dec. 23, 1914.)
    Appeal and Error (§ 569) — Questions Reviewable — Statement of Facts — Appeoval by Trial Judge — Statutes.
    Rev. St. 1911, art. 2068, requiring statement of facts to be approved and signed by the judge, is mandatory, and a statement of facts, not signed because of the inadvertence of the judge, and not discovered until after the filing of the record in the appellate court, must, on motion, be stricken out, though appellant, pending motion, may under article 2074 file a statement signed by the. judge, accompanied with a sufficient showing why the failure to sign had not been previously discovered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2530-2545; Dec. Dig. § 569.]
    Appeal from Falls County Court; W. E% Hunnicutt, Judge.
    Action between Jesse D. Rea and J. P. Fields and another. From a judgment for the latter, the former appeals.
    Affirmed.
    Neff &> Taylor, of Waco, for appellant. Tom Connally, of Marlin, for appellees.

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

   RICE, J.

On a former day of the present term a motion was submitted to strike out the statement of facts herein, for the reason that the same had not been signed by the judge trying the case. We overruled this motion, for the reason that it was shown that the judge promised appellant to approve and sign said statement of facts, and that his failure to do so was an oversight on his part, not discovered by appellant until after the record was filed in this court.

Upon further consideration we have concluded that we were in error, and our opinion on said motion is withdrawn. The appellant has not subsequently procured the signature of the presiding judge to the statement of facts herein. Had he done so, and tendered Úie same, together with a sufficient showing why he had not previously discovered the failure of the judge to sign the statement of facts, it might have been filed under the provisions of article 2074, Rev. St. Article 2068, Rev. St., reads as follows:

“After the trial of any cause, either party may make out a written statement of the facts given in evidence on the trial, and submit the same to the opposite party, or his attorney, for inspection. If the parties, or their attorneys, agree upon such statement of facts, they shall sign the same; and it shall be submitted to the judge, who shall, if he finds it correct, approve and sign it; and the same shall he filed with the clerk.”

The statute requiring the statement of facts to be signed by the judge is mandatory, and we cannot consider a statement of facts not thus signed. See Rains v. Wheeler, 76 Tex. 390, 13 S. W. 324; Railway Co. v. Perkins (Civ. App.) 73 S. W. 1067; Railway Co. v. Keen (Civ. App.) 73 S. W. 1074.

Appellees object to our considering appellant’s assignments of error, for the reason the same do not comply with the law and with the rules. As all such assignments are dependent upon the statement of facts, and as the statement of facts has been stricken out, it is not necessary for us to pass upon such objections.

The motion to strike out the statement of facts is sustained, and the judgment of the trial court is affirmed.

Affirmed.


text:
    GUNTER v. MERCHANT et al.
    (No. 5404.)
    (Court of Civil Appeals of Texas. Austin.
    Nov. 11, 1914.
    On Motion for Rehearing, Dec. 2, 1914.)
    1. Usury (§ 111) — Action foe Usury — Petition — Sufficiency.
    A petition, in an action for usurious interest paid, which alleges that defendant contracted to loan to plaintiff $8,000 for a year at 10 per cent, interest; that plaintiff gave a note for $8,000; that defendant was paid $1,200, which was $400 in excess of lawful interest; that he did not deliver the full face of the note to plaintiff, but withdrew $800, only advancing $7,200, for which, by means of a subterfuge, he exacted and received the further sum of $400, alleged a payment by plaintiff to defendant of $1,200 and stated a cause of action, within Vernon’s Say les’ Ann. Civ. St. 1914, art. 4982, providing that it is necessary to allege and show that the usurious interest was in fact actually received by and paid to defendant.
    [Ed. Note. — For other cases, see Usury, Cent. Dig. 272-306; Dec. Dig. § 111.]
    2. Appeal and Error (§ 501) — Assignments of Error — Exceptions—Objections.
    Under Rev. St. 1911, art. 1971, as amended by Acts 33d Leg. c. 50, providing that objections shall be made to the charge before the same is read to the jury, and all objections not so made shall be considered waived, assignments of error, complaining of the charge, the submission of issues, and the failure to give special charges requested, cannot be considered, where the record fails to show that exceptions were reserved at time of trial.
    OEd. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2300-2305; Dee. Dig. § 501.]
    3. Exceptions, Bill of (§ 31) — Approval by Trial Judge — Necessity.
    A paper, in the record on appeal, which purports to be exceptions to instructions given and refused, cannot be considered as á bill of exceptions when not approved or certified to by the trial judge.
    [Ed. Note. — For other cases, see Exceptions, Bill of, Cent. Dig. § 36; Dec. Dig. § 31.]
    On Motion for Rehearing.
    4. Bills and Notf.s (§ 534) — Attorneys’ Fees — Right to Recover.
    A payee of a note, stipulating for 10 per cent, attorney’s fees, may not recover attorney’s fees, where he does not place the note in the hands of an attorney for collection, but only for foreclosure of a trust deed.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1946, 1947; Dec. Dig. § 534.]
    Appeal from District Court, Tom Green County; J. W. Timmins, Judge.
    Action by S. W. Merchant and another against W. M. Gunter. From a judgment for plaintiffs, defendant appeals.
    Affirmed, and motion for rehearing overruled.
    S. C. Autry and Lee Upton, all of San Angelo, for appellant. Hill, Lee & Hill, of San Angelo, for appellees.

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

   RICE, J.

Appellees S. W. Merchant and J. S. McConnell brought this suit against appellant Gunter to recover the sum of $2,400, claimed to be double the amount of usurious interest charged, exacted, demanded, and received by him from them, alleging that on March 11, 1912, they entered into a contract with appellant to borrow from him. the sum of $8,000 for one year, for which they on said date executed and delivered to him their note for said amount, due March 11, 1913, bearing 10 per cent, interest from maturity, and 10 per cent, attorney’s fees; that appellant charged, accepted, demanded, withheld, and received from them, and they paid to him, the sum of $1,200 for the use of said money, which was $400 in excess of the highest rate of interest allowed to be charged therefor under the law; that he demanded and received from them 10 per cent, interest in advance on said loan, and at the same time caused them, by means of a subterfuge and device, to pay to Miss Lula Talbot, for his benefit, the additional sum of $400, as interest on said loan, in which she was in no w.ay interested or connected, but which was for his sole use and benefit, and as a charge for the use of said money; that by reason thereof they only in fact received the sum of $6,800 from appellant, and the difference between the sum of $6,800 and the sum of $8,000, for which appellees executed their note, to wit, $1,200, was paid by ap-pellees to appellant for the use of said $8,000, and that the' $1,200 was unlawfully and wrongfully charged by appellant against ap-pellees, and was actually received by appellant from appellees as interest upon said sum of money; and that by reason of having received said usurious interest, he became indebted and bound to pay to appel-lees $2,400, being double the amount of such usurious interest so actually paid by ap-pellees to appellant. Appellant answered by general and special exceptions; also admitted some of the allegations contained in ap-pellees’ petition, denied others, and, by way of cross-action, pleaded over against appel-lees for the amount of said note, with 10 per cent, attorney’s fees, less a credit of $6,-600 paid thereon. Appellees, by a supplemental petition, after general and special exceptions, replied by a charge of usury, and admitted owing appellant on said note the sum of $1,400, but denied that the same was placed in the hands of an attorney for collection, but only for the purpose of procuring a sale under the deed of trust. The facts show that upon the execution and delivery of said note to appellant by appellees, he paid them by check the sum of $7,200, and at the same time required them to give to Miss Lula Talbot a check for $400, upon the bank where they had deposited said fund, which amount was collected by him and applied to his own use and benefit, less $20, paid by him to Miss Talbot, which under the evidence is shown to have been a device for the purpose of obtaining usurious interest. The court charged the jury, as matter of law, that the withholding of the $800 by appellant was the payment by appellees of 10 per cent, interest on the $8,000, and then submitted the case upon special issues, which being answered by the jury, judgment was entered in favor of appellees for $1,000, being the difference between the balance due upon the note and the $2,400 recovered for usurious interest.

The first assignment challenges the action of the court in overruling appellant’s exceptions to the plaintiffs’ petition, to the effect that the allegations thereof show no cause of action against defendant; but, taken as a whole, merely state that the plaintiffs executed their promissory note, payable to the order of defendant for the sum of $8,000, and that they only actually received from him the sum of $6,800, and that the only payment of usurious interest attempted to be charged was the difference between said latter sum and the face of the note, which showed that the $1,200 was not paid, but only embraced in said note. While it is true that, to recover the penalty denounced by article 4982 of Vernon’s Sayles’ Civil ■Statutes, it is necessary to allege and show that the usurious interest was in fact actually received by and paid to the defendant, still in the present case, we think, taking all the allegations into consideration, that this has been done. The allegations are that appellant was paid and actually received the sum of $1,200, which was $400 in excess of lawful interest. The allegations further show that appellant did not pay the full face of the note to appellees, but withheld $800, only paying the sum of $7,200, to them, from which, by means of the subterfuge mentioned, he exacted and received from them the further sum of $400. This was equivalent to alleging the payment by them to him of $1,200. See Baum v. Daniels, 55 Tex. Civ. App. 273, 118 S. W. 754. Also, as bearing on this question, see R. S. 1911, art. 4982; Rosetti v. Lozano et al., 96 Tex. 57, 70 S. W. 204; Taylor v. Shelton, 134 S. W. 302; Holcomb v. Ely, 155 S. W. 695; Anderson v. Cleburne Bldg. & L. Ass’n, 16 S. W. 298; Bank v. Johnson, 104 U. S. 276, 26 L. Ed. 742; Bank v. Baker, 15 Ohio St. 68.

• It is contended on the part of appellant, however, that withholding the $800 was not a payment in advance, but appellees merely executed their note in payment for such interest, citing in support of such contention Clayton v. Ingram, 107 S. W. 880; Rosetti v. Lozano, 96 Tex. 57, 70 S. W. 204; Long v. Moore, 126 S. W. 345; Cassidy v. Seottish-Amer. Mortg.'Co., 27 Tex. Civ. App. 211, 64 S. W. 1023; 39 Cyc. 1094; Holcomb v. Ely, 155 S. W. 695.

A review of these cases, we think, fails to sustain appellant’s contention in this respect, in that they do not show payment of any usurious interest, but only the exaction of the debtor’s obligations therefor. In Clayton v. Ingram, supra, the suit was brought to recover on a note given by Clayton to Ingram for $175, the consideration for which was the loan of $150 only, $25, being added as interest. Recovery was for $150 alone, it being held that the mere insertion in the note of $25 for interest was not in fact a payment thereof.

Rosetti v. Lozano, supra, was a ease in which the debtor received $200 from the creditor, and gave his note for $235, the $35 being to cover the interest for one year. This was held not to be a payment of usurious interest, but merely a provision for its payment. j

In Long v. Moore, supra, the debtor executed his note for $72, whereas, in truth and in fact, he only received $60. Having paid the $60, it was held that plaintiff could not recover for the $12 until after he had paid the same.

The other cases not being in point, it is unnecessary to consider them. The petition, in our judgment, was sufficient; therefore the court did not err in overruling the appellant’s exceptions to it, and the assignment raising this point is overruled.

Assignments of error from 2 to 10 complain of the charge of the court, the submission of several special issues to the jury, and the failure to give several special charges requested by appellant. None of these assignments can be considered by us, for the reason that the record shows that appellant failed to reserve exceptions to the action of the court complained of at the time of the trial.

The! second and third assignments are based on appellant’s motions for an instructed verdict. There is nothing in the record showing that appellant excepted to the ruling of the court in refusing said motions.

The fourth and fifth assignments complain of the court’s refusal to give special charges 1 and 2, but there was no bill of exceptions reserved to the court’s refusal so to do.

The sixth alleges that the court erred in its main charge to the jury, but no exception was reserved.

The seventh, eighth, ninth, and tenth assignments complain of the action of the court in submitting special issues Nos. 2, 3, 4, and 5, but no bill of exception was reserved to such action.

Article 1971, Rev. Stats. 1911, as amended by Acts 33d Leg. 1913, pp. 113, 114 (Yernon’s Sayles’ Ann. Civ. St. 1914, art. 1971), provides that objections shall be made to the charge of the court before the same is read to the jury, and all- objections not so made and presented shall be considered as waived. This court, of course, cannot know whether objections were made to the charge of the court without proper bills of exception, signed and approved by the court.

In the present case, a paper purporting to be exceptions to the charge and the failure to give the special charges, is found in the record, but this is not approved or certified to by the trial judge, hence cannot be taken or considered as a bill of exceptions. See St. Louis S. W. Ry. Co. of Texas v. Wadsack, 166 S. W. 42; T. & P. Ry. Co. v. Tomlinson et al., 169 S. W. 217.

The remaining assignments complain that the judgment is~not supported by the pleadings and evidence nor the verdict of the jury. We think the record satisfactorily shows that appellant charged and received $1,200 as interest for one year on $8,000. This was-$400 in excess of the amount that he could lawfully receive as interest for said loan for said time, and tainted the whole transaction with usury. Appellees admitted owing a balance of $1,400 to appellant on said note; and the court, on the verdict of the jury finding that appellant had charged appellees-$1,-200 as usurious interest on said note, was justified in giving them judgment for double the amount of such usurious interest, under article 4982, Vernon’s Sayles’ Civil Statutes. Alter deducting therefrom $1,400, admitted by appellees to be due, it left appellant indebted to appellees in the sum of $1,000, for which judgment was rendered. This, we think, was in accordance with the law and the facts as presented by the record, for which reason the judgment of the court below is, in all things, affirmed.

Affirmed.

On Motion for Rehearing.

After a careful review of appellant’s motion for rehearing, we are constrained to believe that it is without merit. It is true that in stating the averments of appellees’ replication we were mistaken in saying that they alleged that the note was only placed in the hands of an attorney to procure a sale under the deed of trust. We are glad to make this acknowledgment, in order to keep the record straight. We do not think that appellant was entitled to attorney’s fees, because the jury.found, in response to the fifth issue, that the note was placed in the hands of an attorney for foreclosure, and failed to find that it was placed in his hands for collection. This finding is supported by sufficient and satisfactory evidence.

Believing that the motion is not well taken, the same is in all things overruled.

Overruled.


text:
    FLOEGGE v. MEYER et al.
    (No. 5407.)
    (Court of Civil Appeals of Texas. Austin.
    Nov. 18, 1914.)
    1. Appeal and Error (§ 499) — Questions Review able — Instructions—Exceptions.
    Under Acts 33d Leg. c. 59, requiring the presentation of objections to the instruction's before they are read to the jury, and providing for the presentation of requested instructions before the argument is begun, and that the ruling in giving, refusing, or qualifying instructions shall be deemed approved unless excepted to, a bill of exceptions complaining of the refusal of a special charge, which fails to show that the charge was presented at the proper time and submitted to opposing counsel for examination, is defective, and the ruling complained of will not be considered on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2295-2298; Dec. Dig. § 499.]
    2. Witnesses (§ 248) — Examination — Responsiveness.
    An answer to a question asked a party as to what he thought he was signing when he signed an instrument, “I was full,” is responsive, and shows that he was not likely to remember that he signed any instrument.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 861-863; Dec. Dig. § 248.]
    3. Appeal and Error (8 .1050) — Harmless Error — Erroneous Admission op Evidence.
    The error, if any, in permitting a witness to prove a fact was not reversible, where several other witnesses testified to the same fact without objection.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 1068,'1Ó69, 4153-4157, 4166; Dec. Dig. § 1050.]
    Appeal from District Court, Comal County; Frank S. Roberts, Judge.
    Action by Charles Floegge against Henry Meyer and another. From a judgment for defendants, plaintiff appeals.
    Affirmed.
    • Adolph Seidemann, of New Braunfels, for appellant. Henne & Fuchs, of New Braun-fels, for appellees.

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

   RICE, J.

On the 21st day of May, 1913, Otto Meyer sold two lots in the .city of New Braunfels to appellant for the sum of $1,200, at which time he was paid by appellant $100, for which he executed a receipt. Thereafter, on the 2d day of July, 1913, he executed a deed to Floegge for said lots, which was placed by them in the hands of an abstractor, and before it was delivered to Floegge, Henry, a brother of Otto Meyer, without the consent of appellant, obtained possession thereof and refused to surrender same, and this suit was brought by appellant for the possession of said deed and for •title to said lots, tendering the balance of the purchase money. Appellees resisted appellant’s right to recover, alleging that Otto Meyer, the owner of said lots, was an habitual drunkard, without the legal capacity to enter into a contract conveying said property to appellant, and further averring that said contract' was induced by undue influence and fraud, and that the consideration for same was inadequate, tendering back said $100, for which reasons they prayed a cancellation of such deed. Appellant by supplemental petition, replied that Otto Meyer had ratified said contract and conveyance by subsequent acts and conduct on his part. There was a jury trial, resulting in a verdict and judgment in behalf of appellees, from which appellant has prosecuted this appeal.

While there is some conflict in the evidence, we tfiink that it is sufficient to support the verdict. The charge of the court, together with the several special charges given at the instance of both parties, clearly and fully embraced the law of the case as applied to the pleadings and evidence.

The -first assignment complains that the court erred in refusing to give special charge No. 2. Appellees object to our consideration of this assignment, • for the reason that the bill of exception is defective in that it fails to show: (1) That said charge was presented to the court at the proper time, that is, before the beginning of the argument; (2) that it fails to show that it was “submitted to opposing counsel for examination and objection within a reasonable time after the charge was given to the parties or their attorneys for examination.” An inspection of the bill fails to disclose when the same was presented to the court; nor is there any recital therein showing that it was ever presented to opposing counsel for their examination.

Acts 33d Legislature, c. 59, amending articles 1934, 1970, 1971, 1973, 1974, e. 12, tit. 37, and article 2061, c. 19, tit. 37, as well as chapter 14, tit. 37, Rev. St. Tex., which have also been incorporated in Vernon’s Sayles’ Civ. Stats., provide, among other things, that in all civil cases the judge shall give a written charge to the jury, unless expressly waived by the parties to the suit, which charge, before it is given, shall be submitted to the respective parties or their attorneys for inspection, and a reasonable time given them in which to examine and present objections thereto, which objections shall, in every instance, be presented to the court before the same is read to the jury, and all objections not so presented shall be considered as waived; and all such charges must be read to the jury before the argument is begun. Either party, however, may present to the judge in writing such instructions as he desires to be given to the jury, which the judge shall give or refuse as he may see proper, provided such instructions, however, 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. The ruling of the court in giving, refusing, or qualifying instructions to the jury shall be regarded as approved, unless excepted to. Insurance Co. v. Rhoderick, 164 S. W. 1068-1069; Gunter v. Merchant et al., 172 S. W. 191, decided by this court on November 11, 1914; Quanah, A. & P. Ry. Co. v. Galloway, 165 S. W. 546; Crow v. Childress et al., 169 S. W. 927.

The object of this law is to prevent errors in the charge by giving the court the benefit of any objection that counsel might make to it before it was read to the jury. It was likewise intended to afford opposing counsel an opportunity to make objections thereto, as well as to accord them the privilege of concurring in such request. In the instant case, if this practice had been followed, counsel for appellees might have consented to the giving of such charge. The bill does not show that such opportunity was afforded him. If this statute is strictly observed, as we think it should be, it will result in great good by preventing, in many instances, reversals for technical reasons. The bill, we think, is fatally defective in failing to show that the special charge was requested before the charge of the court was read to the jury, and is further defective in failing to show that such special charge was submitted to opposing counsel for their consideration, as above indicated, for which reason this assignment cannot be considered by us.

For the same reason appellees object to the consideration of assignments Nos. 2, 3, 4, 5, and 6, all of which are based on the refusal of the court to give several special charges requested by appellant. Upon examination we find the same defect in the several bills of exception to the refusal of the court to give the special charges requested as pointed out in the first assignment; therefore we cannot consider said assignments.

Counsel for appellees asked defendant, “What did you think you were signing when you signed that receipt?” He answered, “I was full.” The answer was objected to on the ground that the same was a self-serving declaration, and not responsive to the question. We do not think there is any merit in this objection, for the reason that if the witness was “full,” he might not have remembered, and likely did not remember, that he signed any receipt; and the answer was therefore, in a sense, responsive to the question.

Besides, if this was error, it is not ground for reversal, because several other witnesses were permitted to testify to the same facts without objection.

We overrule the eighth assignment for the reason that the testimony of Futch, which was objected to, relative to the delivery of the deed, was immaterial, because the court charged that the deed executed by the defendant was in law a valid deed, and conveyed legal title to the lots described therein. Furthermore, the chief issue involved in this case is as to the validity of the contract for the sale of the lots, and not the delivery or nondelivery of the deed in question.

We overrule the ninth assignment complaining of the failure of the court to give the peremptory instruction requested by appellant, for the reason that no proper bill of exception was reserved thereto. See authorities set out under first assignment of error.

Finding no reversible error in the proceedings of the trial court, its judgment is, in all things, affirmed.

Affirmed.


author: KEY, C. J.

text:
    GULF, C. & S. F. RY. CO. v. TEXAS PACKING CO. et al.
    (No. 5368.)
    (Court of Civil Appeals of Texas. Austin.
    Nov. 18, 1914.
    Rehearing Denied Dec. 23, 1914.)
    Appeal and Error (§ 501) — Questions Reviewable — Instructions.
    Under Acts 33d Leg. c. 59, declaring that a failure to except to the trial court in giving or refusing instructions is a waiver of objections thereto, refusal of instructions will not be considered on appeal, where the record does not show that the party complaining reserved exceptions.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 2300-2305; Dec. Dig. § 501.]

      Appeal from District Court, Bell County; John D. Robinson, Judge.
    Action by the Texas Packing Company against the Gulf, Colorado & Santa PS Railway Company, in which defendant impleaded the Wabash Railroad Company, and sought to recover over against it. Prom a judgment for plaintiff against defendant named, and in favor of the Wabash Railroad Company as a'gainst defendant named, it appeals.
    Affirmed.
    . Terry, Cavin & Mills and A. H. Culwell, all of Galveston, for appellant. Wright, Wynn & Harris, of San Angelo, for appellee Wabash Ry. Co. W. O. Cos, of Temple, for appellee Texas Packing Co.

       For other oases see same topic and section NUMBER in Dee. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

   KEY, C. J.

Appellee, Texas Packing Company, brought this suit against appellant to recover damages for failure to properly ice, care for, and preserve five shipments of dressed poultry, originally shipped from Temple, Tex., to St. Louis, Mo., but, by subsequent agreement, carried on to Chicago, Ill. Appellant impleaded the Wabash Railroad Company, and sought to recover over against that carrier. There was a jury trial, which resulted in a verdict and judgment' for the plaintiff against the appellant, and that the latter recover nothing as against the Wabash Railroad Company, and the case has been brought to this court for revision.

Counsel for appellant have filed a brief which presents many questions, none of which is novel or difficult, and some of which it is not entitled to have considered, because they complain of the action of the trial court in refusing to give certain requested instructions ; but the record fails to show that appellant reserved any exceptions to the rulings referred to. The case was tried after the act of the Thirty-Third Legislature, which requires a complaining litigant to except to the action of the trial court in giving or refusing instructions, had gone into effect. The record shows that appellant reserved certain exceptions to the charge given to the jury, but does not show that any were reserved to the action of the trial court in refusing to give requested instructions. The statute referred to declares that a failure to except to the action of the trial court in giving or refusing instructions shall be regarded as a waiver of objections thereto. Crow v. Childress, 169 S. W. 927, and cases there cited.

The case is similar in many respects to M., K. & T. Ry. Co. v. Texas Packing Company, 167 S. W. 337, decided by this court at its last term, and several analogous questions were decided in that case against the contention urged by appellant in this case, especially with reference to the charge of the court and rulings made upon the admissibility of testimony. None of them being new or novel, we think it would be an unwise consumption of time and place an unnecessary expense upon appellant to discuss all of the numerous questions presented in appellant’s brief; and we content ourselves with saying that, while appellant’s counsel have presented the case with commendable zeal and ability, in our opinion, counsel for appellee, in an equally able brief, has shown why the case should not be reversed.

The verdict of the jury is amply supported by testimony, and we, therefore, make findings of fact to the effect that appellant breached its contract of shipment, as alleged in appellee’s petition, and that, as a result of that breach, the property which was shipped was injured and damaged to the extent found by the jury, and that the proof failed to show that any of the damage referred to was caused by the Wabash Railroad Company. Hence we overrule all the assignments of error presented in appellant’s brief, and order an affirmance of the judgment rendered by the trial court.

This case was submitted at the last term of this court, and has been held under advisement on account of the fact that an application for writ of error in the other case above referred to was pending in the Supreme Court. The magnitude of that court’s application docket is such that we do not feel justified in longer delaying a decision of this case.

Affirmed.