author: CARL, J.

text:
    WM. CAMERON & CO., Inc., v. POLK.
    (No. 5490.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 26, 1915.
    On Motion for Rehearing, June 28, 1915.)
    1. Neligence <@=>32 — Dangerous Premises— Liability to Licensee.
    A licensee on the premises of another must accept them as he finds them, with the attending dangers, and the owner need only use ordinary care not to cause willful injury.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 42-44; Dec. Dig. <§=>32.]
    2. Negligence <^=32 — Dangerous Pkemises —Liability to Licensee.
    A licensee left a path running across a lumber yard of a lumber company because it was obstructed by cross-ties, and, while passing a few feet from a lumber pile, was injured by a fall of the pile. The path bad been used for a long time by the public. The obstruction had existed for several days, but the company had not made it. The company did not negligently pile the lumber after knowing of the obstruction of the path. Held, that the company, which had done nothing which could be construed as an invitation to the licensee and the public to use the ground near the pile, was not liable for the accident.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 42-44; Dec. Dig. <@=>32.]
    On Motion for Rehearing.
    3. Pleading <@=>114 — Denial—'Sufficiency.
    Where an allegation in a pleading is once denied, it is not necessary that it should be denied again because the allegation is repeated in another part of the pleading.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. § 238; Dec. Dig. <@=>114.]
    4. Negligence <^=136 — Dangerous Premises —Liability.
    Where, in an action for injuries to a child by a pile of lumber falling on her, neither the pleadings nor the proof showed to whom the land belonged, where a safe path ran, and where the child was when injured, the court cannot state the status of the child as a licensee, as matter of law, so as to hold that the owner of the lumber was not liable.
    [Ed. Note.' — For other cases, see Negligence, Cent. Dig. §§ 277-353; Dec. Dig. <@=>136.]
    Appeal from District Court, Trinity County ; S. W. Destn, Judge.
    Action by Sybol Polk, a minor, by Mary Polk, as next friend, against Wm. Cameron & Co. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded for trial.
    Nelms & Platt, of Groveton, and Sleeper, Boynton & Kendall, of Waco, for appellant. Morris & Sims, of Palestine, W. S. Poston and R. E. Minton, both of Groveton, for ap-pellee.
   CARL, J.

Appellee, Sybol Polk, a minor, by Mary Polk, as next friend, sued Wm. Cameron & Co., Incorporated, for $40,000 damages on account of personal injuries sustained by the falling of a pile of lumber on her, which broke her leg, and otherwise injured her. The jury, in response to special issues, awarded her $20,000, and, from judgment entered thereon, this appeal is prosecuted.

Appellant operated a sawmill at Saron, on the Missouri, Kansas & Texas Railway, and had lumber stacked there preparatory to shipment. There are dolly ways or ..platforms from which lumber is loaded onto cars. On one of these dolly ways there was a stack of lumber about five feet high, and the dolly way was itself elevated about five feet, making about ten feet from the ground to the top of the lumber. The commissary was near the railroad, and the mother of appellee, Mrs. Mary Polk, ran a boarding house across the lumber yard from the commissary. A road ran around the yard, but there was a path which ran directly across the lumber yard from the post office and commissary to the boarding house of Mrs. Polk. This path ran about 14 feet northwest from the dolly way where the lumber was piled, which fell and caused the injury. For some time prior to the accident, the path had been obstructed by some cross-ties which had been piled there by the railroad company, and, in order to pass, people would have to go around these ties. If they went on the side next the dolly way, they would pass within four or five feet of the lumber piled on such dolly way. Some witnesses say this pathway had been used by the people there for as long as five or six years.

Appellee’s witness, Sam Scarborough, says that the little girl ran to meet him, and he gave her some candy. She then started to pass around the cross-ties, going towards her home, when the pile of lumber fell on her and injured her. One leg was broken, and it healed in such way that it was about one inch shorter than its normal length, and her ear was torn. The ear healed so that it left only a scar that would require careful notice to detect, but the leg was about one-eighth of an inch larger than its normal size. The injury to the leg was permanent, and such defect as existed in regard to tlie ear was also permanent.

The acts of negligence pleaded were because the lumber company permitted the obstruction to remain in the path after they knew the ties were there or by the exercise' of ordinary care could have known it, because the lumber was negligently piled without being tied together and braced, and because a post under the corner of the dolly way was sunken into the ground where it had been washed out by rains, and was rotten, thus permitting that corner to give down and become lower.

In urging that the general demurrer should have been sustained, appellant insists that the petition fails to show the breach of any duty it owed the appellee, and there is a special exception to the same effect.

Appellant, after denying the allegations of the petition, except as to the amount of damages, which was not denied in the answer, pleaded that plaintiff was not exercising ordinary care when injured, and was not walking along the footpath, and that defendant was not guilty of any negligence which was the proximate cause of the injury; that she had been warned of the danger of going upon defendant’s premises and platforms or near them, and told to stay away; that plaintiff was a trespasser; that the lumber was caused to fall by a boy by the name of Frank Smith, who was playing upon the lumber immediately before it fell; that all of the children who were playing there, including the plaintiff, were trespassers; and that, if the plaintiff had remained in the footpath, she would not have been injured.

That the path had been used for a long time by the people in crossing from the boarding house to the post office and commissary may be taken as well established, not long enough, however, for those so using it to acquire a prescriptive right to such use; and it is also established that, same was obstructed by some cross-ties, which, however, the lumber company did not place there. The company did know the ties were there for several days before the accident. For the purposes of this opinion, we shall treat appellee as being a licensee, and not a trespasser, as to the use of the path, because the company had long known that people, including appellee, used the same as a near way from the post office to -the boarding house, which appear to be the commercial centers of that sawmill village. And, under the finding of the jury, the company knew that people had been going out of the path and around the cross-ties next to the piles of lumber on the dolly way for several days prior to the accident.

This brings us to the consideration of the controlling features of the case as to whether, under the facts, there is any liability shown on part of the lumber company.

It has been held by numerous authorities in this state, and others as well, that a licensee must accept the premises as he finds them; but the owner must not, by his own carelessness or negligence, willfully do that which will result in injury to such licensee while using the premises. And in this connection we may say that no business of the child took her there. She was there simply of her own volition and for her amusement.

A number of courts draw a distinction between what they are pleased to call active and passive negligence. This, however, impresses us as the discussion of an academic question, and is a distinction without a difference, when practically applied. Kirby Lumber Co. v. Gresham, 151 S. W. 847; O’Brien v. Union Freight Co., 209 Mass. 449, 95 N. E. 861, 36 L. R. A. (N. S.) 492.

The evidence wholly fails to show that the lumber company negligently piled the lumber there after it knew that the licensee was going near the dolly way, after the path had been obstructed by the pile of cross-ties. And, unless they did so pile it there after such known use, there would be no liability whatsoever, because, being under the burden of accepting the premises as she found them, appellee could not complain if that condition was not a safe one and resulted in her injuries. The owner was only under the duty of using ordinary care not to cause willful injury to her, but was under no duty to guard her against the consequences of negligence done before she began using this passageway. For, as we have seen, as a licensee, she accepts the premises as she finds them, together with the attending dangers. Southwestern Portland Cement Co. v. Bustillos (Civ. App.) 169 S. W. 638; Indian Refining Co. v. Mobley, 134 Ky. 822, 121 S. W. 657, 24 L. R. A. (N. S.) 497; Mack v. Houston, E. & W. T. Ry. Co. (Civ. App.) 134 S. W. 846; Bowler v. Pac. Mills, 200 Mass. 366, 86 N. E. 767, 21 L. R. A. (N. S.) 978, 128 Am. St. Rep. 432; Fitzpatrick v. Cumberland Glass Mfg. Co., 61 N. J. Law, 378, 39 Atl. 675; Galveston Oil Co. v. Morton, 70 Tex. 400, 7 S. W. 756, 8 Am. St. Rep. 611; Annie Habina v. Twin City General Electric Co., 150 Mich. 41, 113 N. W. 586, 13 L. R. A. 1126; C., R. I. & P. Ry. Co. v. Payne, 103 Ark. 226, 146 S. W. 487, 39 L. R. A. (N. S.) 217.

Appellant in this ease had done nothing which could be construed as an invitation to appellee and the public to go around that pile of ties and use the ground near the dolly way for a pathway, and could not have been liable simply because ordinary care had not been used in stacking the lumber. It could have closed the footpath at any time, because no prescriptive right to its use had been shown.

The Supreme Court of this state has held that, in case of a licensee or trespasser, liability for injuries to them only arises in case of willful acts of negligence on the part of the owner of the premises, or such reckless disregard of the safety of such licensee as would be construed as a willful intent to injure.

In the case of Dobbins v. M., K. & T. Ry. Co., 91 Tex. 60, 41 S. W. 62, 38 L. R. A. 573, 66 Am. St. Rep. 856, the railway had left a deep cut on its right of way which became filled with water so as to form a deep pool in a few feet of a footbridge which people passed over in going to its depot and within a short distance of the section house where Dobbins lived. His little child, three years old, slipped away and was drowned in this pool. Judge Denman, speaking for the Supreme Court, said:

“The common law imposes no duty upon the owner to use care to keep his property in such condition that persons going thereon without his invitation may not be injured. In considering the question as to whether a duty exists, there is no distinction between a case where an infant is injured and one where the injury is to an adult, though, where the duty is imposed, the law may exact more vigilance in its discharge as to the former. If there be no duty, the question of negligence is not reached, for negligence can in law only be predicated upon a failure to use the degree of care required of one by law in the discharge of a duty imposed thereby. Since the common law imposes no duty on the railroad to use care to keep its right of way in such condition that persons going thereon without its invitation may not be injured, and since there is no evidence in the record from which the jury could have found such an invitation to the child, it was no more liable in law for its death than would have been a neighbor had it wandered into his uninclosed lands and been drowned in his tank or creek or been killed by falling down his precipice.”

In Walker’s Adm’r v. Potomac, F. & P. R. R. Co., 105 Va. 228, 53 S. E. 113, 4 L. R. A. (N. S.) 83, 115 Am. St. Rep. 871, 8 Ann. Cas. 862, it is said:

“The general rule is that a landowner does not owe to a trespasser (and the same is true of a bare licensee) the duty of having his land in a safe condition for a trespasser to enter upon. The latter has ordinarily no remedy for harm happening to him from the nature of the property upon which he intrudes, and he takes upon himself the risks of the condition of the land, and to recover for an injury happening to him he must show that it was wantonly inflicted, or that the owner or occupant, being present, could have prevented the injury by the exercise of ordinary care after discovering the danger.”

See Crawleigh v. G., H. & S. A. Ry. Co., 28 Tex. Civ. App. 262, 67 S. W. 140; Railway v. Morgan, 92 Tex. 98, 46 S. W. 28; Railway v. Grubbs, 28 Tex. Civ. App. 372, 67 S. W. 519.

In Simonton v. Power Co., 28 Tex. Civ. App. 374, 67 S. W. 530, Judge Pleasants holds that, where the owner makes use of his property as others ordinarily do throughout the country, an invitation to a child to go thereon will not be implied, although the property be calculated to and does attract the child. And in treating the same subject, it is said in the Walker Case, supra:

“No landowner supposes for a moment that by growing fruit trees near the highway, or where boys are. accustomed to play, however much they may be tempted to climb the trees and take his fruit, he is extending to them an invitation to do so, or that they would be any the less trespassers if they did go into his orchard because of the temptation. No one believes that a _ landowner, as a matter of fact, whether a railroad company or a private individual, who makes changes on his own land in the course of a beneficial user, which changes 'are reasonable and lawful, but which are attractive to children and may expose them to danger if they should yield to the attraction, is by that act alone inviting them upon his premises.”

The lumber company was no more responsible for the child’s presence in the lumber pile than was its mother, and the mere fact that it saw fit to go near the lumber to avoid going the road, if, indeed, it did not in fact go there to play, did not place any additional burdens on the lumber company.

Since the facts were fully developed, and under those facts the plaintiff was not entitled to recover, the judgment of the lower court will be reversed, and judgment here rendered that the plaintiff take nothing by reason of this suit.

Reversed and rendered.

On Motion for Rehearing.

The record in this case is silent as to who owns and controls the land across which the path runs, and we were led into the statement that it ran across the appellant’s yard by the fact that it appeared to have been briefed upon that theory. The plaintiff’s petition does not state that the path is on appellant’s land; neither does it allege that it is not upon it. And it is likewise true that it does not appear either from the pleadings or proof whether the place where the child was hurt was upon land under appellant’s control.

In paragraphs 8, 10, and 11 of defendant’s first amended answer it is alleged under oath that Sybol Polk was a trespasser upon the defendant’s premises at the time she was hurt. The first supplemental petition denies the allegations in paragraphs. 8 and 10, but does not deny the charge that she was a trespasser, as' set forth in paragraph 11. This, hov/ever, is unnecessary, for we have held that, when an allegation is once denied, it is not essential that the same should be denied again, no matter how many times the pleader sees proper again to allege the same fact. When once denied, it would add nothing to it to deny the same allegation again and would serve no useful purpose. G., H. & S. A. Ry. Co. v. Pennington, 166 S. W. 464.

Therefore, since the pleadings do not show to whom the land belongs, where the path runs, and where the appellee was injured, we could neither hold that she was a licensee or a trespasser. Neither does the proof show what the status of the property is where the injury occurred.

The first essential element of actionable negligence is the violation of a duty. If there is no duty, there is no negligence. The plaintiff must state and prove facts sufficient to show what the duty is, and that the defendant owes that duty to the plaintiff. Shearman & Redfield on the Law of Neg. vol. 1, p. 14, § 8 (6th Ed.). The same author again says:

“As a matter of course, there can be no negligence where there is no breach of duty. It must appear, therefore, not only that the defendant owed a duty, but also that it did not perform it.” Shearman & Redfield, vol. 1, p. 30, § 15.

Since the pleadings and proof are in such condition that we cannot tell who owned the property where appellee was injured, we have concluded that we were in error in reversing and rendering judgment, and that instead the judgment should be reversed, and the cause remanded for trial; and it is so ordered.
      <@=»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: MOURSUND, J.

license: Public Domain

text:
    CLEVELAND et al. v. STANLEY.
    (No. 5486.)
    (Court of Civil Appeals of Texas. San Antonio.
    June 16, 1915.)
    1. Cancellation oe Instruments @=37— Actions — Pleading—Fraud.
    An averment that a false representation was made to plaintiff that the deed from himself and his wife, on which defendants based their title, had a flaw in it, and that by such fraudulent representation he was induced to convey his life estate, when he did not deem the conveyance affected it, is sufficient to show fraud.
    [Ed. Note. — For other cases, see Cancellation of Instruments, Cent. Dig. §§ 66-80; Dec. Dig. @=37.]
    2. Deeds @=>99 — Construction—Interests.
    A written agreement made as part of the same transaction and involving the execution and delivery of a deed will be construed with the deed, and may be sufficient to show a life estate.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 261-265; Dec. Dig. @=99.]
    3. Pleading @=34 — Petition — Construction.
    Where no special exceptions were urged, every intendment will be indulged in favor of the petition.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 5%, 66-74; Dec. Dig. @=34.]
    4. Vendor and Purchaser @=230 — Innocent Purchasers — Adverse Interest.
    Where plaintiff’s life interest was recognized in a deed which was part of defendants’ chain of title, defendants are charged with knowledge of such interest.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 502-512; Dec. Dig. @=230.]
    5. Appeal and Error @=501 — Presentation oe Grounds oe Review in Court Below — Necessity.
    Where the bill of exceptions did not show that defendants objected to the refusal of re-guested charges, the refusal cannot be reviewed.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2300-2305; Dee. Dig. @=501.]
    6. Cancellation oe Instruments @=37— Pleading — Eeeect.
    A deed cannot be set aside on grounds not pleaded.
    [Ed. Note. — For other cases, see Cancellation of Instruments, Cent. Dig. §§ 66-80; Dee. Dig. ®=37.]
    7.Deeds @=211 — Actions to Set Aside-Evidence— Sufficiency.
    In. a suit to cancel a deed, evidence held insufficient to show that defendants made the misrepresentations relied upon.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 637-647; Dec. Dig. @=211.]
    Appeal from District Court, Sau Jacinto County; J. Llewellyn, Judge.
    Action by J. Stanley against J. C. Cleveland and another. From a judgment for plaintiff, defendants appeal.
    Reversed and remanded.
    J. M. Hansbro, of Cold Springs, and Dean, Humphrey & Powell, of Huntsville, for appellants.
   MOURSUND, J.

This was an action by Jack Stanley against J. C. Cleveland and L. M. Kuykendall, to set aside a deed on the ground of fraud and to recover rents, although the petition contained the formal allegations of a suit in trespass to try title. Plaintiffs based their right to recover upon an agreement made by W. O. Stanley at the time they conveyed to him the premises in controversy, alleging that by such agreement, which was separate from the deed, they reserved a life estate in the premises. They also alleged that when W. O. Stanley conveyed the premises to J. O. Bartee “plaintiff’s and his wife’s life estate in said premises was duly raised”; that the remainder in said premises passed through several persons, among them defendant L. M. Kuyken-dall, who afterwards sold and conveyed the same to defendant J. C. Cleveland; that at the time of. the sale by Kuykendall to Cleveland said parties came to plaintiff and falsely represented that there was a flaw in the deed from plaintiff and wife to W. O. Stanley, and asked them to make a new deed to Kuykendall; that they executed a deed which Cleveland falsely represented did not affect their life estate, but which, in fact, conveyed said life estate; that they relied upon and were induced by such false and fraudulent representations to sign the deed. In addition, the petition contained various allegations concerning the inability of plaintiff and his wife, on account of old age and infirmities, to hear well and to read.

Defendants filed separate answers, each consisting of a general demurrer and a general denial. The case was submitted upon special issues. Instead of submitting issues with respect to the allegations pleaded, the court submitted the general issue whether Cleveland was guilty of fraud in procuring the execution by plaintiff and his wife of the deed dated September 8, 1910. He also submitted issues requiring the jury to find whether J. Stanley intended to release his right to collect rents; whether Cleveland thought that plaintiff and wife understood that they were releasing their right to collect rents; whether Cleveland believed that Stanley and wife intended to release the property from their claim for rents. All questions were answered in favor of plaintiffs, and the jury found that the reasonable rental value of the premises for 1912 and 1913 was $150.

Judgment was entered for plaintiff against Cleveland for $150 rent, and against Kuyken-dall and Cleveland canceling the deed described in the petition.

By the first assignment complaint is made of the overruling of the general demurrer to the petition.

Appellants contend that the allegations are not sufficient to show fraud. It is alleged that a false representation was made to the effect that there was a “flaw” in the deed from J. Stanley and wife to W. O. Stanley, and another to the effect that the deeds sought to be set aside did not affect the life estate owned by plaintiff and his wife in the premises. These allegations, when tested by a general demurrer, are sufficient, we think, to show fraud, when taken in connection with the other allegations. We gather also from appellants’ argument, for no propositions are submitted under this assignment, that they also contend that the allegations are insufficient to show the existence of a life estate in plaintiff.

But in this connection it is to be noted that it is not alleged that the separate agreement wherein the life estate is alleged to have been reserved was made verbally. The allegation would admit proof of a written agreement. A written agreement, made as a part of the same transaction, involving the execution and delivery of the deed, would be construed in connection with the deed, and be sufficient to show a life estate. Giving the allegation concerning the deed from W. O. Stanley to Bartee every reasonable intendment, it is sufficient to show that said life estate was recognized and mentioned in such deed. This would put all future purchasers on notice of its existence. Kuykendall’s and Cleveland’s knowledge thereof is expressly alleged. The petition is not well drawn, but no special exceptions were urged thereto, and when every reasonable intendment is indulged in favor thereof we think it states a cause of action. The assignment is overruled.

The second and third assignments of error complain of the refusal to give special charges. An examination of the bills of exception shows that they do not state that the defendants excepted to the court’s ruling in refusing to give said charges. The assignments must therefore be overruled.

The fourth assignment is to the effect that the court erred in his general charge to the jury, as per bill of exception No. 2. This assignment is too general, and will not be considered. The bill of exceptions does not aid the assignment, when referred to, for it shows that various exceptions were urged to the special issues, and fails to show that the court’s action in overruling said exceptions was excepted to.

The questions sought to be raised in the fifth assignment do not arise under the pleadings in this case. No reservation of rent was pleaded, but it was pleaded that a life estate was owned by plaintiff and wife. The assignment is overruled.

The sixth assignment questions the sufficiency of the evidence to show fraud. The plaintiff J. Stanley testified as follows:

“This deed you show me from me and my wife to Mr. Kuykendall was brought to me to be signed by Maj. J. G. Cleveland and Martin Kuydendall. When they came there I was eating dinner, and they rode up and I asked them down, and they said, ‘No/ they were in a hurry and wanted to see me. I walked outside of the gate, and the Major told me, T am buying this land from Martin, and there is a litüe flaw in the deed, and I want to get you and your wife to sign it, and that will knock it out and make it good,’ and I asked, ‘What sort of flaw is it?’ and he said, ‘Just a little flaw,’ and I asked him to read the deed, and he started to reading, and I said, ‘Read it slowly,’ and he read it over to me, and I don’t know nothing about a deed no ways, but I couldn’t see anything wrong in the deed, and after he read it over I said, ‘Major, are you buying that land from Martin knowing that me and my wife have a life interest in it?’ and he said, ‘Yes,’ and I said, T suppose that Martin told you that,’ and he said, ‘Yes, that is what he told me.’ I told him then that I would sign the deed, but I didn’t know that it was a deed to undermine me and take what I had, and I signed the deed, and my wife signed, and after we signed it he said something about putting a house of some kind on it, and I said, ‘Major, by the time you pay me rent on that land as long as Martin did I expect you will want to sell it too.’ That land was the only source of income I had, and of course, if I had known that I was selling my interest in it, I wouldn’t have signed it. I will be 80 years old the 11th day of next November, and my wife is between 74 and 75 years old. I would not have signed that deed if I had known, I was signing my rights away. I cannot hear good, nor can I see good. I cannot read that paper, nor can I read any paper at all; I could if I could see.”

This testimony does not show that Cleveland represented that the deed from J. Stanley and wife to W. O. Stanley had a flaw in it. The witness fails to mention what deed he is talking about, and, in fact, it is evident that he uses the word “deed” as a synonym for “title.” The deed to W. O. Stanley needed no correction to pass all title held by J. Stanley and wife, and that fact was recognized by Cleveland. The deed which contained a reservation constituting, in the opinion of Cleveland, a flaw in the title, was the one from TV. O. Stanley to Bartee. The testimony fails to show that Cleveland represented to J. Stanley that the deed sought to be set aside did not affect the so-called life estate in the premises. It is not pleaded that Cleveland fraudulently concealed the fact that the deed conveyed all title owned by the grantors, and, if it had been pleaded, the evidence shows that it was read over to J. Stanley, and he heard what its contents were. If J. Stanley’s testimony be taken as true, it shows that he executed the deed sought to be set aside under a mistake as to its legal effect, which mistake was known to exist by Kuykendall and Cleveland, and they failed to disclose to Stanley that he was mistaken. No cause of action based upon mistake of law is pleaded, so we express no opinion upon the question whether the testimony, if based upon proper pleading, would authorize equitable relief. The evidence wholly fails to show that the alleged false representations pleaded were, in fact, made, and the sixth assignment is therefore sustained.

In this connection we will say that the evidence also fails to show that plaintiff and his wife reserved, in a verbal agreement, or that there was reserved for their benefit in the deed to Bartee, a life estate in the premises. The evidence shows that W. O. Stanley made a verbal agreement in consideration of the absolute deed to him to pay to his father and mother one-fourth of the crops raised on the premises as long as they lived. No such agreement was pleaded, and we therefore refrain from discussing the legal effect thereof.

The deed from W. O. Stanley to Bartee contains the following provision:

“It being expressly agreed and understood by all parties that the said J. Stanley and wife are to have the use or rent off the above-described eultivatable land during their lifetime.”

This provision, we think, does not constitute a reservation of a life estate, but is a covenant to pay rent. Its legal effect will also not be discussed, because it was not pleaded.

The seventh assignment is too general, and will not be considered.

The judgment is reversed, and the cause remanded.
      other cases see same topic and KEY-NTJMBES in all Key-Numhered Digests and Indexes


text:
    BUFFALO BAYOU CO. v. LORENTZ.
    (No. 5466.)
    (Court of Civil Appeals of Texas. San Antonio.
    June 16, 1915.)
    1. Master and Servant <&wkey;42 — Discharge —Mitigation of Damages — Duty to Accept Inferior Employment.
    Where a tug boat captain, hired by the month, was discharged, since he had a reasonable time to seek other employment of the same grade before he would have to accept a different or lower grade employment in mitigation of damages, the action of his employers in offering him an inferior position at a salary lower by $10 a month, which he refused to accept, did not confine him to the recovery of damages of $10 only.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 54-56; Dec. Dig. <&wkey; 42.]
    2. Master and Servant <&wkey;42 — Discharge-Mitigation of Damages.
    A servant, wrongfully discharged, after a reasonable time has elapsed, during which he has endeavored to secure the same grade of employment, must accept such employment as he can obtain to mitigate damages.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 54-56; Dec. Dig. <&wkey; 42.]
    Appeal from Harris County Court, at Law; Clark C. Wren, Judge.
    Action by H. Lorentz against the Buffalo Bayou Company. Judgment for plaintiff, and defendant appeals.
    Affirmed, after setting aside an order overruling a motion to reinstate the statement of facts.
    See 170 S. W. 1052.
    John Charles Harris and Harris & Harris, all of Galveston, for appellant. Thomas S. Taliaferro, of Houston, for appellee.
   CARL, J.

On a former day of this term this court overruled a second motion to reinstate the statement of facts and affirmed the judgment of the trial court, because no fundamental error appeared. At the time we wrote that opinion and followed the holding of the Court of Civil Appeals for the First Supreme Judicial District (170 S. W. 1052) the opinion in Camden Fire Ins. Ass’n v. M., K. & T. Ry. Co. of Texas et al., 175 S. W. 816, had not been published, and the opinion by the Austin Court of Appeals in Ft. Worth Pub. Co. v. Armstrong, 175 S. W. 1113 had not been written. The holding in the two eases last mentioned seems to us to be more in consonance with a broad interpretation of the statutes relating to the preparation and filing of statements of facts, and we have concluded that this court will adopt that rule rather than adhere to the rule laid down by the Galveston court. Therefore this court, of its own motion, has set aside its order overruling the motion to reinstate the statement of facts, and we now grant said motion and set aside the order as to statement of facts, and will proceed to discuss the case in connection with the statement of facts. This suit originated in the justice court of Harris county, where H. Lorentz, appellee, sued appellant, Buffalo Bayou Company, Incorporated, to recover $120, $100 alleged to be due him as salary and $20 additional for attorney’s fees. On appeal to the county court, appellee recovered $100, and the Buffalo Bayou Company appealed.

Appellant employed appellee about November 1, 1912 to act as captain of the tugboat Eugene, at a salary of $100 per month. About April 15, 1913, the company became dissatisfied with the services of Capt. Lorentz and discharged him, but at the same time offered him a position as second captain at a salary of $90 per month which he refused. The company thereupon offered to pay him $50 for the half month’s services already performed, but Capt. Lorentz refused to accept less than his salary for the whole month. It is contended by appellant that it was appellee’s duty to seek other employment and minimize the damage, and that when he was offered employment for the remainder of the month at a decrease in wages of only $5 for that time, the most he could recover would be the sum of $5, that being tile difference between 'what he had been getting and what he would have received under the new employment at reduced salary. Appellee maintains that, even it he be required to seek other employment for the remainder of the month in order to minimize the damage, he could not be required by the company to accept a disrating or a lower grade of employment. We may also state that while appellee contends that he was employed by the month, appellant claims that his employment was just so long as his services were satisfactory, and that his services were not satisfactory, and that several expensive wrecks to the boat justified appel-lee’s discharge. The court did not err in refusing to charge the jury as requested, which was substantially that appellee could, not recover $50.00 for the half month that he did not serve as captain of the tugboat Eugene, because the uncontradicted evidence showed that he was offered a position as second captain at $90 per month or $45 for said half month, which would reduce his damages for the time he did not work to $5. The second and third assignments raise practically the same matter of law. Simon v. Allen, 76 Tex. 398, 13 S. W. 296; G., C. & S. F. Ry. Co. v. Jackson, 29 Tex. Civ. App. 342, 69 S. W. pp. 89 to 91; Kramer v. Wolff Cigar Stores Co., 99 Tex. 597, 91 S. W. 775; 26 Enc. of Law, 1013; 26 Cyc. 1018, and notes 37 and 38. Appellee says:

“I refused to take the job of second captain on the tugboat Eugene because Joe Reiehardt and I could not get along well together, and I so told Mr. Drouet. I certainly did try to get other employment after my discharge. It was necessary to have employment, because I am. a married man with a family and am dependent on my wages.”

He also says:

“At the time I was discharged Mr. Drouet offered me work on the tugboat Eugene, in which I would be rated as captain, but not at the same salary; he offered me a position which was inferior to the one I had occupied.”

It was shown that Reiehardt would be his superior officer. He would be under the same man who had displaced him as first captain or commander.

Since it was shown that appellee tried to get other employment and failed, the controversy narrows down to the proposition as to whether the offer of employment at a lower rate and of a lower grade by his employer would preclude him from recovery of that sum offered, if he refused to accept such dis-rating.

In the case of Simon v. Allen & Oo., cited, Simon was employed by the month as a clerk ■in the store of Allen & Oo. at a salary of $55 per month. Early in the month of February he was discharged, and brought suit to recover his salary for the whole of the month, just as Lorentz did in this case. Allen & Co. tendered into court, after suit was brought, the'amount due him up to the date he was discharged. One of the main issues was the duty of Simon to seek other employment in mitigation of damages, and at the request of the defendant the court gave the following special charge:

“In case you find from the evidence that the defendants discharged the plaintiff (if they did) without reasonable cause, then you are instructed that it was the duty of plaintiff to seek employment at any work he could find to do, regardless of what he before that time had been doing. He must have sought and should have taken any honest employment he could get, and that even at a less price than he had been receiving before.”

Mr. Justice Henry, speaking for the court, said:

“We think it was error to give this charge. Plaintiff had the right to seek, for a reasonable time, the same character of employment that he had when he was discharged. If after a reasonable time it became evident that he could not procure employment as a clerk, it would have become his duty, in so far as it concerned his relations with his late employers, to seek other employment for which he was fitted. In view of his evidence on the subject we think that the charge was calculated to mislead the jury.”

This doctrine is approved by Justice Pleasants in Railway v. Jackson, 29 Tex. Civ. App. 342, 69 S. W. 90.

In the case of Kramer v. Wolff, 99 Tex. 597, 91 S. W. 775, Kramer sued Wolff for breach of contract of hire, he having been employed by Wolff as general manager of certain cigar stores in Dallas at a salary of $250 per month. After he had served some time in this position, he was notified by Wolff that his position had been shifted from store No. 4 to store No. 5, a position which was inferior to that originally contracted for; and it was held that he was under no obligation to submit to the efforts of Wolff to force him to accept such inferior position under the contract, and that if by reason of his refusal to submit he was deprived of employment, he would not be precluded from recovering damages even though the same compensation was offered by the defendant for the services to be performed in the new situation that he was getting in the old one.

The suit of The Mary C. Conery (D. C.) 9 Fed. 222, was in the nature of a libel in rem, and that case turned upon the legal effect of disrating a cook and steward, putting him before the mast as a common seaman; and it was said in that case:

“I regard such an act by the master as an abrogation of the contract with the cook and steward, and leaves him [such cook and steward] when a port is reached, * * * the option of accepting it [the disrating] as a discharge, or of remaining on board the ship in his new position. If he elects the former, he is entitled to the payment of wages, according to the contract, up to the time of the disrat-ing.”

It is our opinion that the appellant had no right after Lorentz had been discharged from his position as captain to force him to accept a disrating and an inferior position at a lower salary than that provided for in his contract of employment; and, when he was offered such lower salary and inferior position, he was under no obligation under his contract to accept same in order to mitigate the damages. And, applying the rule thus laid down by Judge Henry in Simon v. Allen, supra, he would have had a reasonable time to have sought other employment of the same grade before he would have had to accept a different or lower grade employment. This time Lorentz did not have, for the offer of the different employment was made at the same time he was discharged. He testified that he did make an effort to get other employment and failed. The law does not contemplate that when a contract is broken the aggrieved party shall humiliate himself at once by accepting a lower grade of employment in this instance any more than in the case of the premiere danseuse, who, it was held, could not beforced under her contract of employment as a dancer in the first row, or leading lady, to accept a dis-rating where she would be placed in the rear rank of the ballet, thus concealing rather than displaying her charms. Of course, after a reasonable time had elapsed during which an effort had been made to secure the same grade of employment, appellee would have been required to accept such employment as he could perform in order to mitigate the damages, but in this instance, while he had made an effort to secure other employment before the expiration of that month, a reasonable time had not elapsed. Even if it had, we doubt if it should be held that a man should be required, even then, to accept a lower grade of employment from the same company which had disrated and humiliated him. But upon this point we do not express an opinion for the reason that it is not necessary to a decision of this case.

The judgment of the trial court is, in all things, affirmed.
      ©s^okor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DUNKLIN, J.

text:
    TEXAS & P. RY. CO. v. WHITE.

    (No. 8188.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    May 8, 1915.
    Rehearing Denied June 19, 1915.)
    1. Commerce <®=27 — Employers’ Liability Act — “Engaged in Interstate Commerce.
    A section foreman of defendant railroad, which was engaged in interstate commerce, who with a crew of five section men went out to repair a broken joint in a rail, and who, while returning, assisted his crew to lift their car from the track to clear it for a freight train, made up of cars destined both to intrastate and interstate points, was “engaged in interstate commerce” within the federal Employers’ Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [ü. S. Comp. St. 1913, §§ 8657-8665]), giving a right of recovery against the carrier for the death of an employs while so engaged.
    [Ed. Note. — Eor other cases, see Commerce, Cent. Dig. § 25; Dec. Dig. <¿¿=527.
    For other definitions, see Words, and Phrases, First and Second Series, Interstate Commerce.]
    2. Commerce <@=^S — Master and Servant 204 — Employers’ Liability Act — Assumption oe Bisk — What Law Governs.
    A railroad section foreman engaged' in interstate commerce, and who assumed the risk incidental to helping his crew to lift their hand car from the track, could not recover for a resulting injury, since the federal Employers’ Liability Act leaves the defense of assumed risk open to the employer, except where the employer’s violation of any statute enacted for the safety of the employés contributed to the injury, notwithstanding the defense of assumed risk does not obtain under the state statutes.
    [Ed. Note. — For other cases, see' Commerce, Cent. Dig. § 5; Dec. Dig. <§=¿8; Master and Servant, Cent. Dig. §§ 544-546; Dec. Dig. <®=204.]
    Appeal from District Court, Taylor County; Thomas L. Blanton, Judge.
    Action by J. P. White against the Texas & Pacific Bailway Company. Judgment for plaintiff, and defendant appeals.
    Beversed, and judgment rendered for defendant.
    J. M. Wagstaff, of Abilene, for appellant. Mahaffey & Eulwiler, of Abilene, for appellee.

       writ of error pending in Supreme Court.

   DUNKLIN, J.

J. P. White was employed by the Texas & Pacific Bailway Company as its section foreman. One of the duties of his employment was to keep in repair the company’s track within a certain section of railroad, and upon the occasion of the accident hereinafter related he, together with five section hands working under him, went out from Loraine, the place of his residence, to a place on his section to repair a broken joint in one of the rails of the track. In going out from Loraine the men rode upon a hand car, and after the work of repairing the broken joint was finished they started back to Loraine upon that car. During the return trip they observed a freight train approaching, and, in order to give the same a clear track, they lifted the hand car from the track. White assisted the other men in performing that service, and while so engaged, one of the men working under him staggered and gave down by reason of the weight of the car, thus throwing an extra weight upon White. In an effort to sustain the extra weight thus thrown upon him, White wrenched and injured the muscles and tendons of his back and spine.

This suit was instituted by White against the Texas & Pacific Bailway Company to recover damages for those injuries upon allegations of negligence in furnishing a hand car too heavy for use by himself and only five section hands. He further alleged that prior to his injury he had requested of the defendant, through its proper officers, that a lighter ear be furnished him, with which request the defendant had failed to comply, and that the defendant was also negligent in failing to furnish a greater number of section hands to perform the duties of his employment by using such a heavy hand car. The case was submitted to a jury upon the two issues of negligence indicated, and a verdict was returned in favor of plaintiff for the sum of $1,000, and from a judgment rendered in accordance with that verdict, the railway company has appealed.

The proof showed without controversy that in removing the hand car from the track White was performing one of the duties prescribed by the rules of the company. The proof further showed that the Texas & Pacific Railway Company owns and operates a line of railway running through the states of Louisiana' and Texas, and upon the trial it was agreed by the parties to the suit that the train which-was approaching the hand car in question on the occasion of White’s injury was a freight train made up of 20 cars of interstate freight destined to places outside of the state of Texas and other cars destined to points within the state of Texas and carrying interstate freight. Those facts were pleaded by the railway company as a basis for the defense that White assumed the risk of lifting the hand car from the track at the time of his injury, and therefore could not recover. Whether or not that defense should have been sustained is the only question presented upon this appeal.

The evidence shows without controversy that, if the car was too heavy to be handled by White and the men working under him, White knew of that fact and of the risk incident to handling the same before he undertook the performance of his service by using said hand car; in fact, counsel for appellee admit that, if the doctrine of assumed risk is applicable, then that defense was sustained by proof. Under the statutes of the state of Texas the defense of assumed risk in a suit by an employe of a railway company against such company does not obtain; the statutes making the facts which would otherwise sustain such a defense admissible upon the issue of whether or not the employs was guilty of contributory negligence. But under the federal statute, the Employers’ Liability Act of April 22, 1908, c. 149, 35 Stat. 65 (U. S. Comp. St. 1913, §§ 8657-8605), the defense of assumed risk is available between such parties.

The controlling question for our determination is: Was White engaged in interstate commerce at the time of his injury? If he was, then he was not entitled to recover ; but, if he was not so engaged, then the judgment should be affirmed.

In the suit of Pedersen v. Delaware, Lackawanna & Western Ry. Co., 229 U. S. 146, 33 Sup. Ct. 648, 57 L. Ed. 1125, Ann. Cas. 1914C, 153, Pedersen, an employé of the railway company mentioned, was run down and injured by a passenger train of the company while he was carrying a sack of bolts or rivets for use in repairing a bridge of the railway company, such injury resulting from the negligence of the engineer of the passenger train in failing to give warning of its approach. The bridge so to be repaired was in regular use both for interstate and intrastate commerce. In that case it was held that Pedersen was engaged in interstate commerce at the time of his injury, notwithstanding the bridge was used for both interstate and intrastate business, and in deciding that point the court used the following language:

“True, a track or bridge may be used in both interstate and intrastate commerce, but, when it is so used, it is none the less an instrumentality of the former; nor does its double use prevent the employment of those who are engaged in its repair or in keeping it in suitable condition for use from being an employment in interstate commerce.”

For other authorities to the same effect see note 47 L. R. A. (N. S.) pp. 52 to 60, inclusive.

Appellee insists that, as the work of repairing the broken rail had already been finished at the time he undertook to lift the car from the track, it cannot be said that het was engaged in interstate commerce, even though it should be held that he was so engaged while repairing the broken rail. But no authority is cited directly in point in support of that contention. The decision of Ill. Cent. Railway Co. v. Behrens, 233 U. S. 473, 34 Sup. Ct. 646, 58 L. Ed. 1051, Ann. Cas. 1914C, 163, cited by appellee, we do not tbink modifies the force of the decision in the Pedersen Case, as contended by appellee. Behrens, on account of whose death that suit was prosecuted, was killed while switching cars in the town of New Orleans, but the proof showed without controversy that the ears which he was switching at the time were intrastate cars, and for that reason alone it was held that he was not engaged in interstate commerce, although it was also l>art of his duties as such switchman to handle interstate commerce cars as well. In the Pedersen Case the court said further:

“The point is made that the plaintiff was not, at the time of his injury, engaged in removing the old girder and inserting the new one, but was merely carrying to the place where that work was to be done some of the materials to be used therein. We think there is no merit in this. It was necessary to the repair of the bridge that the materials be at hand, and the act of taking them there was a part of that work. In other words, it was a minor task which was essentially a part of the larger one, as is the case when an engineer takes his engine from the roundhouse to the track on which are the cars he is to haul in interstate commerce.”

In Ann. Cas. 1913C, p. 25, several English cases are noted holding that injuries to em-ployés while returning from their work were accidents arising in the course of their employment.

It appears that at the time of the accident in question in the present suit White and his crew were still in the employment of the defendant company. The return trip to Loraine, his headquarters, was as much an incident to and a part of the work of repairing the broken rail as was the outgoing trip to perform • that service. We axe of the opinion, further, that* the act of removing the hand car from the track out of the way of the coming train, being in the aid of the movement of interstate traffic, was sufficient of itself to 'bring the accident within tlie operation of the federal Employers’ Liability Act; in other words, that White, in removing the hand car for the purpose of giving a clear track to the train loaded in part with interstate freight, was engaged in interstate commerce within the meaning of the act.

For the reasons indicated, we conclude that White’s injury occurred while he was employed in interstate commerce, that he assumed the risk of such injury, and for that reason is not entitled to recover. Seaboard Air Line Ry. Co. v. Horton, 233 U. S. 492, 34 Sup. Ct. 635, 58 L. Ed. 1062.

Accordingly, the judgment of the trial court is reversed, and judgment is here rendered in favor of the appellant.
      <S=oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RAINEY, C. J.

text:
    ST. LOUIS SOUTHWESTERN RT. CO. OF TEXAS v. BERRY & SLAUTER.
    (No. 7359.)
    (Court of Civil Appeals of Texas. Dallas.
    June 5, 1915.
    Rehearing Denied July 3, 1915.)
    1. Atoeal and Error <@=>758 — Assignments of Error — Necessity — Jurisdiction of Trial Oourt.
    Question of the trial court’s jurisdiction is fundamental and reviewable, though no assignment of error in reference thereto is presented in appellant’s brief.
    [Ed. Note. — For other eases, see AüDeal and Error, Cent. Dig. § 3098; Dec. Dig. <@=>758.]
    2. Justices of the Peace <@=>141 — Jurisdiction of County Court on Appeal.
    The appellate jurisdiction of the county court cannot exceed the jurisdiction of the justice’s court from which the appeal was taken.
    [Ed. Note. — For other .cases, see Justices of the Peace, Cent. Dig. §§ 467 — 476; Dec. Dig. <@=>141.]
    3. Justices of the Peace <@=>145 — Jurisdiction of County Court on Appeal.
    Where the petition filed in the county court on appeal from a justice’s court showed facts authorizing a recovery in excess of $200, plaintiff to confer jurisdiction could not remit any part of his demand and thereby reduce the same to a sum within the jurisdiction of the justice’s court.
    [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 479 — 489; Dec. Dig. <@=>145.]
    4. Justices of the Peace <@=>141 — Appeal-Jurisdiction.
    Where a justice’s court did not have jurisdiction of the cause of action the county court on appeal acquired no jurisdiction.
    [Ed. Note.- — For other cases, see Justices of the Peace, Cent. Dig. §§ 467 — 476; Dec. Dig. <@=>141.]
    Appeal from Navarro County Court; R. R. Owen, Judge.
    Action by Berry & Slauter against the St. Louis Southwestern Railway Company of Texas. From a judgment for plaintiffs, defendant appeals.
    Reversed, and cause dismissed.
    E. B. Perkins and D. Upthegrove, both of Dallas, and R. S. Neblett and Gordon Damon, both of Corsicana, for appellant. Richard Mays, of Corsicana, for appellees.
   RAINEY, C. J.

This is an appeal from a judgment rendered by the county court of Navarro county for $200 against appellant. The suit was instituted in the justice court by appellees to recover damages caused to a shipment of cattle by alleged negligence of appellant in delaying transportation of said cattle from Dawson, Navarro county, Tex., to East St. Louis, Ill. A judgment was rendered for appellee in the justice court and an appeal taken to the county court, where a similar judgment was rendered, from which an appeal was taken to this court.

The appellant called our attention by argument to the lack of jurisdiction to render judgment in appellee’s cause of action in the courts below, the amount being excessive, as shown on the face of the record.

The transcript from the justice court shows the following entry: “Suit for damages for $192.65.” This is the only entry in said transcript which in any way refers to the amount of appellee’s claim for damages. In the county court appellee filed a petition in said cause, and stated his cause of action thus:

“Plaintiffs further allege that, because of the negligence of defendant, and the violation of its said contract, plaintiffs sustained injury and damage, as is now more particularly specified: That because of said 24 hours delay in placing said cattle upon the market they sustained a loss and average shrinkage of 30 pounds per head, and the aggregate loss upon said 95 head of cattle was 2,850 pounds, the reasonable market value of which was $5.70 per ewt., amounting to $162.45. Plaintiffs further allege that, as a result of the shrinkage in the weight of said cattle, their appearance and attractiveness to buyers upon the market was further depreciated, and they sustained a damage of 10 cents per cwt. That the average weight of said 95 head of cattle was 1,007 pounds, and that said cattle were thereby further damaged in the sum of $1 per head, in addition to the damage caused by shrinkage in weight. Plaintiffs further show that during said delay in the transportation of said cattle extra feed necessarily had to be given to said cattle, which amounted to the further sum of $17. Plaintiffs further show that, while it appears that the damage sustained by them amounted to more than $200, yet they now and hereby remit all damages in excess. of $200”—

and prays for judgment for their damages in the sum of $200, with interest and costs. The aggregate amount claimed in damages shown to have been sustained as by the petition in the county court is $274.45.

A verdict was rendered in accordance with the prayer, and judgment rendered accordingly by the county court.

The question of jurisdiction having been called to our attention we feel bound to take notice thereof, although appellants in their brief present no assignment of error in reference thereto, it being fundamental.

The ease of Railway Co. v. Coal Co., 102 Tex. 478, 119 S. W. 294, is decisive of this question, where the court says:

“The county court of Randall county Jiad no jurisdiction of the subject-matter- of this suit. The appellate jurisdiction of the county court could not exceed the jurisdiction of the justice court from which the appeal was taken, which, by article 5, section 19, of the Constitution, is prescribed to be: ‘ * * * in civil matters or all cases where the amount in controversy is two hundred dollars or less, exclusive of interest.’ Erom the statement which accompanies the certified question we conclude that the cause of action set u,p in the amended petition filed in the county court was the same as that set up in the justice’s court, which was that the defendant railroad company failed to deliver to the plaintiff 169 tons of coal, the damages claimed being- $1.50 per ton,'making in the aggregate the sum- of $253.50, of which, however, the plaintiff only sought to recover $199.50. The amount in controversy in this case was the sum of $253.50 and of that sum the justice cou,rt had no jurisdiction. After the suit was instituted the plaintiff could not be permitted to remit a portion of the claim sued upon for the purpose of bringing his action within the jurisdiction of the justice court. Burke v. Adoue, 3 Tex. Civ. App. 494 [22 S. W. 824, 23 S. W. 91]; Times Publishing Co. v. Hill, 36 Tex. Civ. App. 389 [81 S. W. 806].
“In Burke v. Adoue the court said: ‘When the amount to which the plaintiff appears from his allegations to be entitled is a fixed sum, and is beyond that which the law has empowered the court to adjudicate, the plaintiff should not be permitted to enter a fictitious credit for the purpose of giving jurisdiction.’ This is a clear and accurate statement of the law applicable to the facts of this case.
“The defendant had a right to have the issue involved in the case tried in a court of competent jurisdiction and he cannot be deprived of that right by an act of his opponent to which he does not consent.”

The justice court not having jurisdiction of appellee’s cause of action the county court had none, and it becomes the duty of this court to reverse the judgment of the county court, and dismiss the case, and it is so ordered.
      @=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: KEY, C. J.

text:
    FREEMAN et al. v. CLARK.
    (No. 4826.)

    (Court of Civil Appeals of Texas.
    June 7, 1911.)
    1. Carriers @=>277 — Carriage oe Passengers — Breach oe Special Contract — Damages — Humiliation.
    Where plaintiff, contemplating to attend a Confederate Reunion, was induced by the traffic agent of defendant railroads to travel over their line, and to influence his friends to do so, by the promise to furnish through first-class chair ear transportation, in his action for breach of such contract the plaintiff could not recover for any humiliation he sustained because the friends whom he had induced to go with him were treated as he was, and compelled, to ride in inferior cars.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1082-1084; Dec. Dig. @=>277.]
    2. Damages @=»23 — Breach oe Contract.
    The measure of damages for a breach of contract includes compensation for only such injuries a» the defaulting parties must have contemplated as a natural and necessary result of the breach.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 58, 62; Dee. Dig. <@=>23.]
    3.Damages @=>56 — Breach oe Contract — Mental Annoyance and Discomfort.
    The law does not ordinarily allow recovery in damages for mental annoyance and discomfort resulting from a breach of contract, which must be shown to have attained a higher pitch of intensity than ordinary regret or annoyance, must have been mental anguish, and a necessary and natural result of the breach, so that the party in fault must be held to have contemplated it as a result of the breach before recovery can be had.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 104, 105; Dec. Dig. @=>56.]
    Appeal from Hays County Court; J. B. Wilson, Judge.
    Action by J. G. Clark against Thomas J. Freeman, receiver, and others. Judgment for plaintiff, and defendants appeal.
    Reversed and remanded.
    See, also, 177 S. W. 1189.
    Fisher & Fisher,- of Austin, John M. King, of Houston, and T. B. McCormick, of Dallas, for appellants. T. C.' Johnson, Jr., T. J. Saunders, and Will G. Barber, all of San Marcos, for appellee.

       Questions certified to Supreme Court pending.

   KEY, C. J.

Appellee brought this suit seeking to recover damages from two railroads, one of which was operated by T. J, Freeman, as receiver. There was a jury trial, which resulted in a verdict and judgment for the plaintiff for $400, apportioned equally against the defendants, and the latter have appealed.

The plaintiff in his petition alleged, in substance, that he, being desirous of attending the Confederate Reunion held in Memphis, Tenn., in 1909, was approached by agents of the defendants, who urged him to travel over their lines from his home in San Marcos, Tex., to Memphis, Tenn., and to use his influence to induce his friends to go with him over those lines; that, as an inducement to do so, said agents represented and promised that he and his friends should have seats in a first-class chair car from San Marcos to Memphis, without change, and should have first-class service in every respect; that, on account of such representations and promises, the plaintiff solicited and induced a number of his friends to join him at San Marcos and travel over those roads, to Memphis, Tenn. He alleged that he and his friends bought tickets and boarded a train at San Marcos, but could not obtain and were not furnished seats in a chair car nor'first-class service; that the car in which they were compelled to ride was inferior in quality, equipment, etc.; and that during part of the time it was crowded with negroes, and that, as a result of the breach of the contract between the plaintiff and the defendants, he suffered great physical inconvenience and discomfort, and also suffered much regret, humiliation, and mental anguish at the treatment received hy him and his friends.

The charge of the court authorized the jury, if they found for the plaintiff, to allow him compensation, not only for the physical and mental suffering which he sustained on account of the defendant’s failure to furnish him a seat in a chair car and first-class service, hut also for any humiliation which he may have sustained on account of the fact that his friends, whom he had induced to go with him, were treated in the same manner that he was. The last phase of the court’s charge is assigned as error, and we sustain the assignment. Watson on Damages and Personal Injuries, § 406; Railway Co. v. Overton, 101 Tex. 586, 110 S. W. 736, 19 L. R. A. (N. S.) 500; Western Union Tel. Co. v. Cooper, 71 Tex. 512, 9 S. W. 598, 1 L. R. A. 728, 10 Am. St. Rep. 772; Railway Co. v. Gregory (Civ. App.) 73 S. W. 28.

Counsel for appellee contends that the charge in question was correct, because this ease comes within the class of cases illustrated hy Railway v. Coopwood (Civ. App.) 96 S. W. 102, in which a writ of error was refused by the Supreme Court for reasons stated by that court in Railway Co. v. Overton, supra. We do not think this case and the Coopwood Case are analogous. The material distinction lies in the question of remoteness; in other words, the measure of damages for breach of a contract includes compensation for only such injuries as the defaulting party is required to contemplate as a natural and necessary result of his breach of the contract. In the Coopwood Case Mrs. Coopwood was in charge of her afflicted and helpless daughter. She not only contracted and paid for the transportation of her child, but was present and witnessed the failure of the railroad company to comply with its contract, and the result such misconduct had upon the afflicted and helpless daughter. On account of the close blood relationship existing between them, the railroad company was required to contemplate that the breach of contract shown in that case would necessarily and naturally cause Mrs. Coopwood mental pain and suffering. In the case at bar we do not believe that the railroad company was required to anticipate that a breach of its contract with the plaintiff would necessarily cause him mental pain and suffering on account of the fact that he had induced his friends to go with him, and they were subjected to the same discomforts that he was. As a general rule, the law does not allow compensation for mental annoyance and discomfort, which results from a breach of contract. Before recovery can be had upon that score, it must be shown that the mental perturbation was more than ordinary regret or annoyance, and was what is commonly denominated “mental anguish”; and such mental anguish must be such a necessary and natural result of the breach of contract as that the party breaching it will be held to have contemplated such mental suffering. In this case the plaintiff’s friends were not related to him; they were not afflicted, helpless, and in his charge; they bought their own tickets and paid for their own transportation; and the only fact in reference to them that could have caused the plaintiff any mental disturbance was the fact that he had induced them to travel that route to Memphis, and had witnessed the fact that they were subjected to the same inconveniences and annoyances that he was. While such state of facts might cause regret with a majority of civilized men, we do not believe it is a matter of common knowledge that all, or even a majority, of such men would, under such circumstances, suffer that degree of mental perturbation denominated mental anguish. Many men have been sorely distressed in mind because the failure of a debtor to promptly pay up when the debt was due has prevented them from paying their own debts out of the funds which the debtor had promised but failed to supply, and yet it has never been held that damages could be recovered on account of such mental distress. To sustain the plaintiff’s coutention in this case and allow the recovery here claimed would result in enlarging the measure of damages beyond the Coopwood Case, which case, it seems to us, has gone far enough.

The assignments of error presenting other questions are overruled; but, on account of the error referred to, the judgment is reversed, and the cause remanded.

Reversed and remanded.
      other cases see same topic and KEY-NUMBER In all Key-Numbered Digests and Indexes


author: PHILLIPS, J.

text:
    FREEMAN et al. v. CLARK.
    (No. 2360.)
    (Supreme Court of Texas.
    June 26, 1915.)
    Oabbiees <§=3277 — Bbeacii oe Special CONTRACT oe Tbanspobtation — Damages — Humiliation.
    Where the plaintiff was induced by the agent of defendant railroad to influence his friends to travel with him over such road to a Confederate Reunion, relying on the agent's promise that they should have a through chair car, for breach of the road’s agreement to furnish such car, forcing the plaintiff and his friends to travel in an old and uncomfortable day coach, with negroes, defendant road was not liable in damages for humiliation suffered by plaintiff because his friends, whom he had induced to travel with him, were so treated.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1082-1084; Dee. Dig. <§=3277.]
    Certified Questions from Court of Civil Appeals of Third Supreme Judicial District.
    Action by J. G. Clark against Thomas J. Freeman, receiver, and others. Judgment for plaintiff, and defendants appeal. Question certified by tbe Court of Civil Appeals,
    answered in the affirmative.
    See, also, 177 S. W. 1188.
    Fisher & Fisher, of Austin (John M. King, of Houston, and T. B. McCormick, of Eos Angeles, Gal., of .counsel), for appellants. T. O. Johnson, Jr., T. J. Saunders, and Will G. Barber, all of San Marcos, for appellee.
   PHILLIPS, J.

The certificate of the Honorable Court of Civil Appeals is as follows:

“In this case the Court of Civil Appeals has held that the trial court committed reversible error by instructing the jury as to the measure of damages, and telling them, if they found for the plaintiff, to allow him compensation, not only for the physical and mental suffering which he sustained on account of the defendant’s negligence, but also for any humiliation which he may have suffered on account of the fact that his friends, whom he had induced to go with him, were treated in the same manner that he was. The case is now pending in the Court of Civil Appeals on appellee’s motion for rehearing; charging that we committed error in the ruling referred to, ' and that the instruction complained of was properly given. A copy of the opinion of this court is hereto attached, and made a part of this certificate, and it shows the nature of the case and the question certified ; and we here set out the plaintiff’s testimony, which reads as follows:
“ T am the plaintiff in this case and have lived here in San Marcos a great number of years. In June of last year the Confederate Reunion was held at Memphis, Tenn., and I had occasion to go to that reunion. I had been a Confederate soldier and desired to attend the reunion. I first talked with the Missouri, Kansas & Texas Railway Company’s agent with reference to going over that line, and had about decided that I would go that route and would ask my friends to go the same way, when I received word through my son about May 1, 1909, that I was wanted at the depot of the International & Great Northern Railroad Company here in San Marcos. He told me that Mr. G. A. Rogers, who was the local agent here of the International & Great Northern Railroad Company, and a Mr. Fitch, wanted to see me there at the depot. I went then to the depot as requested, and met Mr. W. E. Fitch, who was a traveling passenger agent of the St. Louis, Iron Mountain & Southern Railway Company. Mr. Fitch and Mr. Rogers together talked with me, and Mr. Fitch stated that the International & Great Northern Railroad Company and the Iron Mountain route were going to put on through excursions to Memphis, and he wanted me to assist him in getting parties from the San Marcos section to go over that line. Mr. Rogers, Mr. Fitch, and myself all took part in the conversation, but at that time nothing was said about any through chair cars, nor were any arrangements nor negotiations with reference to the trip completed. Mr. Fitch said that he would see what arrangements he could make and would communicate with Mr. Rogers or with me in a short time. What they then wanted was that I should agree to go over their lines and undertake to induce my friends to go the same way.
“ ‘After Mr. Fitch left, some little while passed, and I heard nothing from, him or Mr. Rogers, and I went over and talked to the Katy people again about going over their line, and practically perfected arrangements looking to that end. Later, and about two or three weeks after Mr. Fitch was first here, he came to San Marcos again, and they again sent for me, and I went to the station and met him and Mr. Rogers and Mr. Garland Tobin; the latter being the traveling passenger agent of the International & Great Northern Railroad Gompany, or of the receiver thereof. They said that they had come to figure with me further on going over their lines to the reunion, and I told them that I had just about perfected plans to go over the Katy line. They urged me to change my plans and go over the International & Great Northern and the St. Louis & Iron Mountain & Southern Railways. They told me that if I would do 'that they would furnish us a chair car, and that we would have the very best service in every way, and insisted that I should agree to go on that line and should urge my friends to go the same way. They were pleasant, agreeable fellows, and I finally agreed to do as they requested. They told me to get as many of my friends and acquaintances to go along as I could, and authorized me to say to them, that we would have a first-class chair car all the way through without change. Mr. Fitch said that he would go along with us and would see to it that we had all the conveniences and the best of service. These conversations were ■participated in by both Mr. Fitch and Mi’. Tobin, as well as Mr. Rogers, and they told me that the two lines really worked together, and both Fitch and Tobin made that representation and promise to me. After we had tallied about the matter, Messrs. Fitch and Tobin proposed that they would prepare a circular letter and send to me for me to send out to my friends and acquaintances with reference to the proposed trip. They went away and, as I understood, prepared the letter at Austin and sent back to me. In any event, the next day Mr. Rogers delivered to me a large number of circular letters prepared to be signed and sent out by me. I have a copy of the circular letter sent me by them, and which I sent out to my friends, and same reads as follows:
“ ‘ “On account of the fast schedule via the International & Great Northern Railroad and the St. Louis, Iron Mountain & Southern Railway, via Texarkana to Memphis, Tennessee, we have decided to use that route to the Confederate veterans Reunion. Will leave San Marcos via I. & G. N. ‘Fast Mai! a. 59 p. m. Sunday, June 6th, and arrive at Memphis Monday, 4:30 p. m. There will be through Pullman tourist sleepers and chair cars on this train; also dining car service, and if yon desire reservations in the sleeper, please write mo at once in order that I may secure same for you. Trusting that you may be able to make the trip with us and awaiting your reply, I beg to rem¡ain,
“ ‘ “Yours truly, [Signed] J. G. Clark.”
“ ‘As stated, Mr. Fitch sent me quite a number of copies of the foregoing letter to be signed by me, and I signed them and sent them out to various friends of mine. In addition, I.wrote personal letters to those friends and saw a good many of them and talked with them in person. Among others whom I sent the letters to were Mr. J. T. Howard, Mr. J. L. Harris, Mr. W. S. Lewis, and a great many others. Quite a number of those whom I had solicited in this way to go over the line of the two defendants did go thereover as requested by me. I explained to these friends of mine, including those who went along, that we should have a first-class chair car and first-class service through from San Marcos; that Mr. Fitch and Mr. Tobin had promised me this; and that I was sure it could be depended on. Acting and relying upon what these^ representatives of the railroad company had said to me, I went to the Missouri, Kansas & Texas people and told them that I had concluded to go over the lines of the defendant companies, and would not go over the Katy. I fully expected the defendants to furnish ns the service as they had so emphatically promised, and X assured my friends that they would receive such service if they would go with me over the lines of the defendant companies. Neither of the defendants or their agents were to pay me anything for any services in the matter. I was anxious that we should get the best route practicable, and wanted all of us to have good accommodations, so that we would have a pleasant trip. If it had not been for those promises made me by Messrs. Fitch and Tobin and Mr. Rogers, I would have gone over the Missouri, Kansas & Texas Railway and its connecting lines, and my friends would mostly have gone with me over that other'route.
“ ‘The plan was to leave San Marcos on the afternoon train on June 6th, which reached here about 3 o’clock, and we did in fact go on that train. I, with the others, bought and paid for a first-class round-trip ticket over the line of the two defendant companies from San Marcos to Memphis, Tenn. I expected to see Mr. Fitch aboard the train, as he had promised, when it reached San Marcos, but he was not there. When the train pulled into the station here, it was badly crowded, and the San Marcos crowd got aboard wherever they could. There were probably 25 or 30 of us in the San Marcos crowd. Those immediately with me when we got aboard went first into a tourist sleeper. The brakeman who assisted us on the car told us to go in there. There were then some vacant seats, and we got a place for the ladies to sit, and I then went to hunt the chair car which had been promised. I found only one chair car on the train and every seat in it was taken, with some standing up. There was no chair car on that train, except one, and there was no opportunity for me or my friends with me to get seats thereon, because it was already full. I went back into the sleeping car, which we had first gone into, and found a seat there. As soon as the conductor came around, I asked him about the seats we had been promised in a chair car, and he stated that they had only the one chair car, and that it was full, but that he thought we would get another car at Austin or Taylor. I had no ticket for the sleeper, and most of - the others of my crowd were in the same fix. Some of them had bought tickets for the sleeper, but others were not willing to and had not done so. As we were getting up toward Taylor, it was getting towards night, and we were notified that we would have to leave the sleeper in which we were sitting as the parties would want their berths put down. We then asked what we should do, and just after we left Taylor a brakeman came and said that he w’ould show us into a ear in the rear. I don’t know whether that car was put on there at Taylor or whether it had been picked up before we reached there. The brakeman then showed us back to that car, all of us going, except those who had sleeper„tickets. That was not a chair car by any means. It was an old car, and the worst car I ever saw run for passengers to ride in. I have ridden on trains more or less during my life, and never saw as hard a car as that run. It was old and in bad condition every way. The seats were as hard as that floor there, and no more spring to them than that floor. When we reached Valley Junction, my attention was attracted, and I discovered, a large crowd of negroes being loaded into this car in which we then were. I protested against it, but it did no good. I do not know how many negroes they put in there, but they filled the car entirely full. They doubled up into every vacant seat, and some of them crowded in between the seats, and they stood in the aisle and at the ends of the car almost as thick as they could stand. We went on from Valley Junction in that way with the negroes crowded in all around and about us. A little further up the line, I think at Hearne, they put some more negroes in. We kicked about it to the conductor and brakenym, but they said they could not help it, as the negroes had to ride somewhere, and they had no other coach for them. So far as I could see, they did not put the negroes into any other coach, except the one in which I was riding with my friends. The negroes stayed there with us until we got to Palestine, and then all alighted, and we went on through to Memphis in that same car. It was in very warm weather in June, and you can imagine better than I can describe the condition in that car with those negroes in there. It was extremely unpleasant and uncomfortable. There was nothing we could do to remedy the situation. We kept all the windows up, which helped some. Before reaching Palestine, I continued to complain to the conductor about not having the chair car and told him what we had been promised. He told me that another chair car would be put on at Palestine, and he thought that we would be able to get seats from there on. When we reached Palestine, I watched for the other chair car, bat the only chair car put on there was one which they switched from the Galveston line, and it was loaded up as the one on our train was. I went up into the car, and there was no chance at all to get a seat therein. I was in that car a (number of times from then on to Memphis, but it was full all the way through, and there was no chance for us to get seats therein. I continued to protest to the trainmen about their failure to furnish ns the chair car as promised, or seats in a chair car, but they were unable to do anything for us, as all seats therein were occupied. The result was that we went clear through to Memphis in that old car that we were loaded into at Taylor. In addition to the seats being very uncomfortable, there was no closets therein, and no water provided therein, and for any accommodation of that kind we would always have to hunt in the other cars. It was physically uncomfortable riding in that car. The seats were very hard and became very tiresome before we reached the end of the trip. In addition, I was very much worried, humiliated, and distressed at the treatment received. I had, at the instance of the defendants’ agents, procured my friends to go with me over their lines upon the promise that they would have first-class accommodations of every kind with a chair car to ride in, and then to be loaded into that car, as we were, of course fretted and worried me a great deal. My friends held me responsible for the predicament in which we were placed, and some of them seemed to think that I was standing in with the railroad people and getting paid to induce them to go over their road by holding out promises of first-class service, which we did not receive. I regretted the treatment accorded us by the railroad companies very much. When we reached Memphis I saw Mr. Fitch for the first time, and then complained to Mm at Ms failure to carry out Ms agreement. He said he had been called away to some other place was the reason that he was not there, but he offered no explanation of why we had not had the chair car service, as promised.
“ ‘We reached Memphis about 5 o’clock in the afternoon of the day succeeding that on wMch we left San Marcos. It was about the 18th or 19th of May, 1909, when I had the conversation referred to with Fitch, Tobin, and Rogers.’
“Cross-examined.
“ ‘To go to MempMs and return, I paid $14.-25 for my ticket It was a through ticket from San Marcos to MempMs and return, and the two compaMes carried me on that ticket to Memphis. I cannot say exactly how many were in my party who did not take sleepers, but I think there were 10 or 12.
“ ‘After the negroes got in the ear I did not see any of the train- crew attempting to separate the whites from the blacks. They were so thick in there X do not think they could have been separated. I could not say as to whether or not there was a partition in the car. I do not know whether the rest of the San Marcos crowd that went to Memphis got seats in the chair car or not, but I do not think they did. I know that I did not. I think that after we left San Marcos maybe one or two of the womenfolks got seats in. the chair car. There was one crippled lady, a sister of Mr. Watson, and some one gave her a seat. I know that the party with me did not any of them find any seats in the chair car. I tried to get seats for them, but could not do so. The conductor told me that the chair car was crowded, and in addition I saw it was myself. I had enough money to pay for a sleeper, but I did not contract to take a sleeper. There were a good many of my friends with me who were not willing to take sleepers and probably did not have money to do so, and, as I had gotten them into it, I was not willing to quit them, and stayed with them all the way through. I won’t say that Mr. Pitch or the other party promised us a special car for the San Marcos crowd. The way I understood them and the way they stated it. was that they would send a chair car here, and then, of course, if there was not enough here to fill it, then we expected to take in other passengers enough to fill it after leaving here.^ X do know that they instructed me to promise my friends a chair car in which to ride, and that I did make such promise to my friends, and that they failed to furnish the chair car as promised. They did not furnish us a separate car, nor did they furnish seats in any other chair car. It is a fact that, when we went aboard at, San Marcos, we went into the sleeper, but that was because we could not get seats elsewhere, and because the man helping us on told us to go there. Xes, I did sit down on a lady’s hat, but she did not threaten to throw me out of the window. I apologized to her and did all that a gentleman could do, under the circumstances. We were crowded hurriedly into the tourist sleeper, and 1 did not notice the hat until I had sat upon it. We got to Memphis the next day and had a pleasant time while there, and X left just after-wards and went back to my old home in Mississippi before coming here.
“ ‘X am not a Confederate veteran, but was in a company of boys organized at home while the war was going on. We were too young for active service, but had plenty to do trying to keep things straight at home. My occupation is that of a carpenter, and I also prepare and sell powder, known as condition powder for horses. There was no particular reason why I helped get up the crowd at San Marcos, except that I wanted the crowd to go together, thinking we would all have a nicer time. It was not understood that I was to receive a free ticket or be paid for the work I did. I did it just simply because I was asked and was willing to do so. I saw Mr. Eitch at Memphis, but he did not offer to pay me anything, nor did I ask him to pay me anything for what I had done.’ ”

In this state of the proof, the Court of Civil Appeals has certified the following question to us for decision:

“Did the trial court commit error when it instructed the jury that, if the plaintiff recovered, the measure of damages would include compensation for any humiliation which the plaintiff may have suffered on account of the fact that his friends, whom he had induced to go with him, were treated in the same manner that he was?”

Upon the original hearing of the case in the Court of C-ivil Appeals, after which it certified to us the above question, it held, In an opinion delivered by Chief Justice Key, that this charge was erroneous. We agree with that conclusion, and therefore answer the question in the affirmative. Judge Key’s opinion presents a very clear and satisfactory discussion of the question, and embodies our own views upon it. It may be found in 177 S. W. 1188.

The test of the question finally is whether mental anguish on the part of the appellee, because of the treatment accorded those accompanying him on the trip, was such a necessary and natural result of the breach of the contract as that the appellant will be held to have contemplated it in the event of such a breach when the contract was made; and we hold that such could not reasonably have been in contemplation in this case. We quote with approval this portion of Judge Key’s opinion:

“As a general rale, the law does not. allow compensation for mental annoyance and discomfort, which results from a breach of contract. Before recovery can be had upon that score, it must be shown that the mental perturbation was more than ordinary regret or annoyance, and was what is commonly denominated ‘mental anguish’; and such mental anguish must be such a necessary and natural result of the breach of contract as that the party breaking it will be held to have contemplated such mental suffering. In this case the plaintiff’s friends were not related to him; they were not afflicted, helpless, and in Ms ehai'ge; they bought their own tickets and paid for their own transportation; and the only fact in reference to them that could have caused the plaintiff any mental disturbance was the fact that he had induced them to travel that route to Memphis, and had witnessed the fact that they were subjected to the same inconveniences and annoyances that he was. While such state of facts might cause regret with a majority of civilized men, we do not believe it is a matter of common knowledge that all, or even a majority, of such men would, under such circumstances, suffer that degree of mental perturbation denominated mental anguish. * * * To sustain the plaintiff’s contention in this case and allow the recovery here claimed would result in enlarging the measure of damages beyond the Coopwood Case (G., C. & S. F. Ry. Co. v. Coopwood [Civ. App.] 96 S. W. 102), which case, it seems to us, has gone far enough.”

The case, in our opinion, is clearly distinguishable from the Coopwood Case. There Miss Coopwood, who was subjected to what may be considered rather harsh treatment at the hands of the railway company’s employes, was sick and afflicted and in charge of' her mother upon the train, and, in view of the relationship, it was properly ruled that mental suffering on the part of the mother would naturally have been within the contemplation of the defendant if the daughter was subjected to that character of treatment. We do not hold that a state of case might not be presented which would warrant the recovery of damages for such suffering, occasioned by the treatment, at the hands of a defendant of others, sustaining a given relationship to the party seeking the recovery of such damages; but, in our opinion, such a recovery cannot be sustained here.

Associate Justice HAWKINS concurs in our answer to the certified question, but upon a different ground. It is his view that the charge was erroneous because on the weight of the evidence in that it assumed that it was within the defendant’s contemplation that the plaintiff would suffer mental anguish because of the treatment accorded his friends. He thinks the question should have been left to the jury. A majority of the court are of the opinion that, under the-statement of the case, there was no such question to be submitted to the jury.
      <@=>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes