author: HUFF, C.J.

text:
    GULF, C. & S. F. RY. CO. et al. v. BOGER.
    (No. 633.)
    (Court of Civil Appeals of Texas. Amarillo.
    June 13, 1914.
    On Motion for Rehearing, Oct. 10, 1914.)
    1. Carriers (§ 209) — Transportation of Animals — Suitable Cabs — Duty to Furnish.
    A railroad carrier must furnish cars suitable to transport cattle offered for shipment, and it cannot shield itself from liability for failing -to perform such duty by proving that the shipper agreed by the contract of shipment to inspect the cars furnished and reject them if improper.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 925; Dec. Dig. § 209.]
    2. Carriers (§ 147) — Domestic Shipments— Common-Law Liability — Limitation.
    In Texas, by statute a common carrier may not limit by contract its common-law liability as to domestic shipments, nor can it contract to relieve itself from its common-law liability for damages due to its negligence or that of its servants.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 637-640, 646-648; Dec. Dig. § 147.]
    3. Carriers (§ 218) — Transportation of Animals — Defective Oars — Carrier’s Liability.
    Where a cattle transportation contract provided that the shipper would inspect the cars furnished, see that they were properly fastened and sufficient for the journey, and report any defect therein, such stipulation was ineffective to relieve the carrier of its duty to furnish proper cars, or to exempt it from its common-law obligation, and if, as a result of the negligence of the carrier’s servants or agents, proper cars were not furnished or securely fastened to prevent the escape of the cattle, and they did escape, the carrier was not relieved by such stipulation from liability therefor.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 674-696, 927, 928, 933-949; Dec. Dig. § 218.]
    4. Appeal and Error (§ 1056) — Harmless Error — Exclusion of Evidence.
    Where cattle escaped from the cars in which they were shipped by reason of the carrier’s negligence in failing to furnish proper cars and to securely fasten the same, and not by reason of any failure of the shipper to examine the cars and fastenings, the carrier was not prejudiced by the court’s exclusion of a provision of the shipping contract requiring the shipper to examine and report any defects in the cars and fastenings.
    [Ed. Note. — For other cases, see.Appeal and Error,'Cent. Dig. §§ 4187-4193, 4207; Dec. Dig. § 1056.]
    5. Carriers (§ 227) — Transportation of Animals — Bedding Cars.
    Where plaintiff’s cattle were injured as the alleged result of a failure to properly bed the cars, and the carrier pleaded a provision of the shipping contract that the shipper agreed to bed the cars, but did not allege that the carrier was exempt under the contract from its duty to do so or that the shipper, in fact, undertook to put in the bedding, the answer was defective for failure to further allege that the shipper was given an opportunity to do so, and that, if the cars were not properly bedded, it was through the shipper’s default.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 232, 953-956; Dec. Dig. § 227.]
    6. Carriers (§ 218) — Transportation of Cattle — Bedding Cars.
    Where a carrier furnished cars to transport plaintiff’s cattle, and undertook to bed the cars with sand before the cattle were loaded or the shipping contract signed, it could not thereafter rely on a provision of the contract subsequently executed requiring the shipper to bed the cars, in order to relieve it from liability for a failure to provide proper bedding.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 674-696, 927, 928, 933-949; Dec. Dig. § 218.]
    7. Venue (§ 22) — Place of Suit — Action Against Carriers — Breach of Contract-Conversion.
    Where certain cattle purchased by plaintiff from D., after having been placed in cars for transportation, were permitted to escape from the ears by the carrier’s negligence, and, having returned to D.’s ranch, he refused to surrender them to the carrier on demand, such act did not render him a party to the carrier’s contract ; and hence, in an action by plaintiff for breach of the carrier’s transportation contract, D. could not be joined and required to answer in a county other than that in which he resided or in which the alleged conversion occurred.
    [Ed. Note. — For other cases, see Venue, Cent. Dig. §§ 35-37; Dee. Dig. § 22.]
    On Motion for Rehearing.
    8. Carriers (§ 227) — Transportation of Live Stock — Notice of Injury — Variance.
    In an action against connecting carriers for loss of, and injury to, cattle, all of the defendants introduced the bill of lading of the initial carrier, which provided that the shipper should give notice of claim within 91 days. The answer of two of the carriers set up that the notice required after damage should be presented within 120 days, but did not allege that such defendants made separate contracts from that made by the initial carrier. Held that, such defendants not having alleged that they did not ae-cept or acquiesce in the through bill of lading issued by the initial carrier, such bill would be regarded as the contract of each and all the connecting carriers, as provided by Rev. St. 1911, arts. 713, 732; and hence the allegation that the contract provided for notice within 120 days followed by proof of a contract calling for 91 days’ notice, constituted a variance.
    TEd. Note. — For other cases, see Carriers, Cent. Dig. §§ 232, 953-956; Dec. Dig. § 227.]
    Appeal from Clay County Court; W. T. Allen, Judge.
    Action by M. W. Boger against the Gulf, Colorado & Santa Fé Railway Company and others. Judgment for plaintiff, and defendants appeal. Affirmed in part and reversed in part.
    Rehearing denied.
    Thompson & Barwise, of Ft. Worth, Taylor & Humphrey, of Henrietta, and H. E. Hoover, of Canadian, for appellants. Woodward & Baker, of Coleman, for appellant Dunman. Wantland & Parrish, of Henrietta, for appellee.

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

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

   HUFF, C.J.

M. W. Boger, the appellee, brought suit against the Pecos & Northern Texas Railway Company, the Abilene & Southern Railway Company, the Ft. Worth & Denver City Railway Company, and the Wichita Valley Railway Company. The cause of action alleged hy appellee is substantially that he shipped eight cars of cattle from Novice to Jolly, Tex., and to Vernon, Tex. tie alleges the cattle were depreciated in value on account of the negligence of the defendant railway companies in improperly bedding the cars and improperly handling the same while in transit, and delaying them beyond the usual and ordinary time in making said shipments, tie alleges that one of the animals was killed en route by the negligence, and that 14 head were lost, and asked for damages for the value of the 15 head and for depreciation in the value of the remaining, aggregating the sum of $994.

The railway companies each answered, and the Abilene Southern Railway Company brought in or made a party Theo. Dunman to the suit. The allegation making Dunman a party will be noticed later in the opinion. The Pecos & Northern Texas Railway Company answered by general denial, etc., and further set up the following provision of the contract of shipment:

“The shipper agrees at his own cost and expense to properly bed the cars 'in which the stock are to be transported and in all respects put them in proper condition for shipment of said stock, and also agrees that before the cars in which said stock are to be transported leave the first-named station that he will caréfully examine the same, and that if any defect or deficiency whatever be found in said cars that he will at once report the fact to the station agent of the company and demand in writing another car or cars in lieu thereof, and if the shipper shall fail to make such demand it shall then be conclusively presumed that said cars and each of them are in all respects suitable for the transportation of said stock and the shipper agrees to assume, and not hold the company liable for, any damage that, may occur to the stock on account of any defect in the car or any of them, which were not so reported to the company’s said agent in writing. The shipper further agrees to see that the cars are securely fastened so as to prevent the escape of stock therefrom and that he will not hold the company responsible for any loss or damage that may result from a failure or neglect on his part or of his agents or employés to so do, and also agrees to assume all risk of injury or loss of or to said stock because of any defect in said cars,” etc.

The defendant railway company alleged, that “if said cattle escaped from the cars after being loaded and there was a defect in the car or cars at the time the cattle were loaded, which is denied, then under the provisions of said contract it is not responsible therefor, and plaintiff cannot recover,” and that it was the duty of the shipper to discover such defect, if any, both before and after the cattle were loaded and at all times while en route, and that his failure to do so was the proximate cause of his loss, if he suffered any. It is further alleged that under the express provision of the contract that it was expressly agreed and understood in case of shipment over the line or lines of connecting carriers that the provision of the contract so entered into should inure to their benefit and to have'full force and effect as against plaintiff.

Each of the remaining defendant railway companies adopted, in the main, the answer of the Pecos & Northern Texas Railway Company; the Ft. Worth & Denver City Railway Company setting up a provision of the contract, it made with Boger, to the effect that he should give notice within 120 days after the damage was received as a condition precedent to his right to sue, etc.

In answer to the Abilene Southern Railway Company, Theo. Dunman answered by a plea of special privilege to be sued in the county of his residence, to be noticed later on in the opinion.

It is urged by the first assignment of error presented by the appellants the railway companies that the trial court was in error in excluding the paragraph of the Pecos & Northern Texas Railway Company, set out in the answer of that road. The appellee objected to its introduction on the ground that to hold the plaintiff to such requirements would be unreasonable and illegal and an undue restriction of the carrier’s liability, and that the portion of the contract so pleaded is in violation of the carrier’s common-law liability ; that the cars furnished were shown to be the only cars furnished by the railway, and they were fastened by the carrier or by the carrier’s employés, and no request was ever made that plaintiff see to the fastenings, bedding, and inspection of the cars; and that the contract was immaterial and irrelevant. It will be noticed that the contract requires the shipper to see that the cars are securely fastened, carefully inspected, and to examine the same and report any defect to the station agent in writing. In this case the appellant railway companies plead that, if the cattle escaped from the cars after being loaded on account of the defect of the car or cars existing at the time they were loaded, under the provisions of the contract the railway companies were not liable. There is evidence which would authorize the jury to find that the 14 head of cattle escaped from the cars while the cars were standing on the transfer tract of the Abilene Southern Railway Company at Tuscola, or between that point and Abilene. It is shown that the car doors of one or two of the cars were out of repair, and not properly fastened at Abilene, from which cattle could have escaped.

It is the duty of the railroad company to furnish a car suitable to transport the cattle, and it cannot shield itself by proving that the shipper was to examine the car as to its fitness to transport this property. Hunt v. Nutt, 27 S. W. 1031; Ry. Co. v. Dolan, 85 S. W. 302; Ry. Co. v. Trawick, 80 Tex. 270, 15 S. W. 568; Ry. Co. v. Montgomery, 16 S. W. 178; Ry. Co. v. Wilhelm, 3 Willson, Civ. Cas. Ct. App. § 460.

In this state, by statute, a common earrer cannot limit its common-law liability by contract on domestic shipments (Railway Co. v. Trawick, 68 Tex. 314, 4 S. W. 568, 2 Am. St. Rep. 494; Ry. Co. v. Brooks, 145 S. W. 649); and further, in this state, as well as nearly all other jurisdictions in the Union, a carrier, by contract, cannot relieve itself from its common-law liability for damages occasioned by its negligence or that of its servants and agents (6 Cyc. 392; Ry. Co. v. Dolan, 85 S. W. 302; Ry. Co. v. Wood, 30 S. W. 715).

“Even if the acceptance of the goods is special, the burden of proof is still on the carrier to show not only that the cause of the loss was within the terms of the exceptions, but, also, that there was on his part no negligence or want of due care.” Ryan v. Railway Co., 65 Tex. 13, 57 Am. Rep. 589.

In this case, under the stipulation excluded, the appellee was required to examine the cars and the fastenings, “and agrees to assume, and not hold the company liable for, any damages on account of the defects in its cars and not so reported.” It was the railroad’s duty to furnish proper cars for the transportation of the cattle and to fasten the cars to prevent their escape and to safely transport them to their destination.

If the appellee assumed to see that the cars were properly fastened and that the cars were sufficient for the voyage, and report any defect therein, this would not relieve the appellant of its duty to furnish proper cars or exempt it from its common-law obligation, and if from the negligence of the agents or servants of appellants, proper ears were not furnished or securely fastened, so as to prevent the escape of the cattle, this provision of the contract would not exempt it from liability. Allen v. Railway Co., 82 Neb. 726, 118 N. W. 655, 23 L. R. A. (N. S.) 278. Appellee, by contract, was only required to examine the cars; he was not required to fasten or secure the cars by contract. His failure to do so would not relieve appellant from its duty, and a contract so relieving the carrier would be void under our statute, and in so far as the contract attempted to exempt the appellant from damages occasioned by its own negligence, it is void under all or nearly all the authorities.

The evidence in this case or the pleadings do not show that the failure to examine the car and the fastening was the proximate cause of the escape. Unless this was shown by the evidence, no injury resulted to the appellants by the exclusion of the provision of the contract. If the cattle escaped from the negligence of appellants in failing to furnish proper cars and in failing to securely fasten the same, appellant by showing a contract exempting such carrier from liability occasioned by its negligence, under the law could not be relieved from its duty and consequent damages resulting from its negligence.

The clause offered in evidence also has within it a clause to the effect that the shipper agrees at his own cost and expense to properly bed the cars. The appellant, by its answer, copies the entire clause, but does not allege that it was exempt, under the contract, from the duty of bedding the cars, or that the appellee, in fact, undertook to bed the same. The appellee, by supplemental petition, alleges that the appellant itself undertook to bed the cars, and he testified that it attempted to bed the cars with a few buckets of sand, and that the appellee protested that this bedding was insufficient and demanded more. If by the terms of the contract the appellee was to bed the cars, we think the answer should further allege that he was given an opportunity to dq so, and that, if they were not so bedded, it it was through his fault. The answer fails to allege circumstances which show that the failure to bed was the fault of appellee. Ry. Co. v. Dishman, 41 Tex. Civ. App. 250, 91 S. W. 828; Ry. Co. v. Davis, 88 Tex. 593, 32 S. W. 510; Ry. Co. v. Edwards, 75 Tex. 334, 12 S. W. 853.

The facts are uncontroverted in this, case that the railroad undertook and assumed the duty of bedding cars. Having done so, before the cattle were loaded and before the contract was signed, we think appellants should not be permitted, at ±his time, to rely upon the exemption stipulated for in the contract, from its duty which it had already attempted to discharge when the contract was executed. Ry. Co. v. Dolan, 85 S. W. 303; Ry. Co. v. Savage, 41 S. W. 663; Ry. Co. v. Kingsbury, 25 S. W. 322. As stated, the undisputed testimony shows that appellant assumed the duty of bedding the cars, and the bill of exceptions to the action of the court in excluding this paragraph, does not show that, had the clause been admitted in lestimony, the railroad company could have proven or would have shown the facts that rendered appellee liable to the duty or have shown that the railroad company did not, in fact, assume the duty. Mr. Boger, the ap-pellee, while admitting he knew he would be required to sign the contract, testified that he, in more than 30 years’ experience, had never bedded cars for shipments of cattle, but that the railroads always performed that service. These facts are in no way controverted. If, under the pleadings, the clause was admissible, we think under the uncontro-verted facts, no injury has been shown, and this assignment will be overruled.

The second assignment complains of the ruling of the trial court in excluding the provision of the contract with the Et. Worth & Denver City Railway Company requiring notice of damages for delay or decline in the market to be presented to the railway company within 120 days after the injury had been occasioned. . This provision was set up in the answer of the Ft. Worth & Denver City Railway Company alone, and in no other, and was not sworn to as required by article 5714, R. S. 1911. Hence notice will be presumed to have been given. Ry. Co. v. Honea, 84 S. W. 267. The initial contract was made with the Pecos & Northern Texas Railway Company, and purports to have been made for the benefit of all the connecting carriers, for the through shipment to the points of destination. The shipments appear to have been made throughout the route in the same cars over the various lines of defendant roads. It may be questioned whether the stipulation in the Ft. Worth & Denver City Railway Company’s contract could in any event be treated as a binding stipulation, for the reason that it was not the contract of shipment originally made. Ry. Co. v. Wood-Hagenbarth Cattle Co., 105 Tex. 178, 146 S. W. 538; Elder v. Railway Co., 105 Tex. 628, 154 S. W. 975. This assignment will be overruled.

We overrule the fourth and fifth assignments, as we find no prejudicial error in the action of the court in admitting the testimony of which complaint is made. The evidence, we think, is sufficient to support the items of damages allowed by tjie jury for the injuries received by the cattle delivered.

Theo. Dunman also appeals, and assigns error in this case from the verdict and judgment of the trial court. The jury found in favor of Boger against the railway companies, the sum of $947.50, and found in favor of the Abilene & Southern Railway Co., against the defendant Theo. Dunman, for the sum of $518, for which judgment was rendered. Boger alleged:

“On the 25th day of January, 1913, plaintiff was the owner and in possession of 489 head of •steer cattle, sound, in good going condition, and suitable for shipment, which on or about said daté he tendered to the defendant the Pecos & I Northern Texas Railway Company, at Novice, for transportation as follows: 310 head of them to be transported to said Jolly, Clay county, Tex., and 179 of them to be transported to said Vernon, Wilbarger county, Tex., which said cattle were then and there accepted by the said named defendants for immediate transportation aforesaid, and the defendants, and each of them, agreed and bound themselves and became and was the duty of them and each' of them, upon receiving said cattle herein alleged, to transport the same to their respective destinations”

—alleging also the loss of 14 head of cattle en route. The Abilene & Southern Railway Company, in their answer, set up a cross-action as follows:

“Further replying herein, this defendant says that if it is true, which this defendant denies, that plaintiff lost 14 head of cattle in his shipment of said cattle from Novice to Vernon, Tex., as alleged by plaintiff, that 14 head of cattle escaped from the cars while they were standing on the transfer track at Tuscola, and escaped without any fault on the part of this defendant, and before it had accepted them for shipment, and that said 14 head of cattle were subsequently recovered by Theo. Dunman, and that said Dunman is now claiming said cattle as his own, and has at all times refused to turn over said cattle to this defendant for plaintiff, and that said Dunman has wrongfully converted said cattle to his own use and benefit.”

Upon this cross-petition, Dunman was cited to appear and answer the suit then on file in the county court of Clay county, Tex. In due and proper time, and in due order of pleading, Dunman set up his plea of privilege to be sued in the county of his residence, which is alleged to be in Coleman county, Texas, and that he was informed that said railway company would attempt "to show the conversion of the cattle, either in Coleman county, Tex., or at Tuscola, Taylor county, Tex. The plea of privilege to be sued in his county was properly and formally made and sworn to, and in other respects complied with the law in regard to such pleadings.

The facts in this case show that Boger purchased the cattle shipped from Theo. Dunman in Coleman county, Tex!, and that he shipped them from Novice to Vernon and Jolly; that he billed out 179 head of steers to be shipped to Vernon, and that upon arrival at that place there was one dead in the car and 14 missing. The facts further show that Tuscola is at the crossing of the Pecos & Northern Texas Railway Company and the Abilene & Southern Railway Company, and that the cars of cattle were placed on the passing or transfer track at that point and remained there some time; and, further, that the car doors of some of these cars were out of repair when they arrived at Abilene, a short distance from Tuscola, and were in such condition that cattle could have escaped from the car. The testimony further shows that after these cars were picked up by the Abilene & Southern Railway Company, within the inclosure of the Railroad Company, inclosing the transfer track, shortly after the cars were there, there was seen some 11 head of cattle, answering the description of the cattle shipped, and 3 others in the lane. Shortly thereafter a party was seen driving these cattle, or cattle answering their description, who is sufficiently identified, and who afterwards testified that Dunman came to his place and claimed the cattle as his and took them to the ranch. The evidence further shows that Tuscola was about seven miles from Dunman’s ranch. Boger, some few weeks afterwards, investigating the ground around the passing track, says that he found cattle tracks at a place on the dump, evidencing the escape of cattle from the cars, and further stated that he examined the cattle in the possession of Dunman, and positively identifies some 5 or 6 head, and believed to the best of his judgment that 14 head were cattle that he had purchased from Dunman. This, perhaps, will be a sufficient statement of the facts to present the questions involved in Dunman’s appeal. Dunman requested that the court instruct the jury, under the pleadings and facts in this case, to find for his plea of privilege to be sued in either Coleman or Taylor county. He assigns error upon the refusal of the court to so charge, and also assigns error upon the refusal of the court to grant a new trial upon the ground that the testimony is not sufficient to render judgment against him in Clay county. We should state that the evidence is uncontroverted that Tuscola is in Taylor county, and that Dunman resides in Coleman county, and resided there at the institution of the suit, and had for some 30 years, and was residing there at the time of the trial and at all others times since the institution of the suit.

Plaintiff Boger based his right of recovery upon the failure of the defendant railway companies to deliver 14 head of cattle which they had contracted to deliver. Clearly Dunman was not a party to this contract and a breach thereof would give no right of action against him. The venue of the suit could not therefore be fixed by making him a party. If he is liable at all, he is liable for the wrongful conversion of the cattle or for the cattle; if such had been the nature of the suit, then the parties participating in the conversion could be joined and they would be proper parties to such an action. This being a suit for damages, based upon the breach of a written contract, the venue as to such must be fixed by the statutes. Article 1830, subds. 4, 25. It is asserted by the railway companies that Dun-' man, having willfully converted the cattle while in the actual or constructive possession of the railway company, made himself a party to the contract, by unlawfully interfering with the performance of the contract of delivery, and in support of this proposition they cite the cases of Raymond v. Yarrington, 96 Tex. 443, 73 S. W. 800, 62 L. R. A. 962, 97 Am. St. Rep. 914; Lytle v. Galveston, 100 Tex. 292, 99 S. W. 397, 10 L. R. A. (N. S.) 437; Angle v. Railway, 151 U. S. 1, 14 Sup. Ct. 240, 38 L. Ed. 55. If we shall admit that Boger had a cause of action against Dunman for causing a breach of the contract for the delivery of the cattle, in order to recover he would have been required to so allege his cause of action and to have instituted his suit in the county of Dunman’s residence or the county of the alleged trespass. We do not think the two causes are properly joined in this case. If, however, they could be joined, it cannot be so done as to defeat Dunman’s right to be sued in the county of his residence and to fix the venue in Clay county. In the case of the quasi contract there is an entire absence of the contractual elements. The purpose is not to pay, but the intention is to convert to the use of,the tort-feasor.

“In this case the law implies against his will the obligation to restore to the true owner what has been taken, and out of this obligation a promise is inferred which permits the party wronged to waive the tort and sue in assump-sit.” Simkins on Contracts and Sales (3d Ed.) 472.

The suit was not instituted by Boger on such a contract. If it had been so brought by him, it could not, we think, be contended successfully that the venue, under subdivisions 4 and 25, art. 1830, was properly laid in Clay county. Boger having failed to so bring the suit, the defendant railway companies cannot, in a suit where the venue was properly laid as to them, set up a cause, based upon a different contract to the one in suit, or upon a different tort, and thereby compel Dunman to answer therein when he pleads his privilege to be sued in the county of his residence, or of the alleged trespass. In order to entitle the railroad company to sue in a county other than Dun-man’s residence, 'it must bring its cause clearly within some clause named in the statute. Behrens Drug Co. v. Hamilton, etc., 92 Tex. 284, 48 S. W. 5; Holloway v. Blum, 60 Tex. 625; Railway Co. v. Mangum, 68 Tex. 342, 4 S. W. 617; Ft. Worth, etc., v. Smith, 149 S. W. 200. We hold that the court should have, under the evidence, instructed the jury to have found for Dun-man on his plea of privilege. The case will be affirmed as to Boger against the railway companies and reversed as to Dunman, with instructions to the trial court to change the venue to either Taylor county, the place of the alleged trespass, or to Coleman county, Dunman’s residence.

Affirmed in part and reversed in part.

On Motion for Rehearing.

In the original opinion, we stated, in disposing of the second assignment of error, that one of the appellants, the Ft. Worth & Denver City Railway Company, was the only defendant setting up a provision of the contract requiring 120 days’ notice of damage for loss, injury, delay, or decline in the market as a condition precedent to the right to sue for damages, and further stated that this plea was not sworn to. In this statement we were in error. The plea was sworn to, and the .plea was made jointly by the Ft. Worth & Denver City Railway Company and the Wichita Valley Railway Company. The appellee Boger excepted to this answer: (a) Because the reply does not state'facts tending to show that such stipulation in said contract was reasonable; (b) because the said contract, as quoted in defendant’s said answer, shows-upon its face the right of the general freight agent or auditor of said defendant to waive such notice, and said answer does not show that such waiver was not given. The court sustained these exceptions, and struck out that part of the answer. If the court was in error in sustaining the exceptions as made, the question is: Was' it such an error as will reverse the case? The contracts of shipment were made between M. W. Boger and the Pecos & Northern Texas Railway Company January 15, 1913, at Novice, a station on that road. The contracts bound that road and the connecting carriers to deliver the cattle of M. W: Boger — eight cars of cattle — at Jolly, Clay County, Tex., and four cars at Vernon, Tex. The consideration was stated therein and the contracts provided that their terms should apply and inure to the benefit of each connecting carrier, and all of the defendant railway companies joined in the introduction of these contracts. The Ft. Worth & Denver City Railway Company was the delivering carrier in both shipments, and the Pecos & Northern Texas Railway Company was the initial carrier. The Pecos & Northern Texas Railway Company’s contracts had a 91 days’ provision, and set up a failure of Boger to give notice in accordance therewith. ■ Upon exception by Boger this plea was stricken out. There is no assignment briefed to this action of the court. The statement of facts shows that all the defendant railway companies introduced the Pecos & Northern Texas bill of lading, and that bill of lading so introduced provides that the shipper should give notice of the claim for damages to the railway company in writing within 91 days after damages occurred. The answer of the Ft. Worth & Denver City Railway Company and .the Wichita Valley Railway Company set up that the notice required to be given after damage was to be presented within 120 days. The answers of these two roads do not allege that they made separate contracts from that entered into by the Pecos & Northern Texas Railway . Company, the initial carrier. We think that the Denver Railway Company, by its answer, having failed to allege that it did not accept or acquiesce in the through bill of lading executed by the Pecos & Northern Texas Railway Company, that articles 731 and 732, R. C. S., will apply, and that the contracts made by the initial carrier will be deemed to be the contracts of each of ■ such connecting common carriers. It will be noted that the answer of the defendant the Ft. Worth & Denver does not allege that the provision set out was independent of the original contract made by the initial carrier, and the contract introduced in evidence in this case providing for 91 days was clearly a variance from the allegations of the Ft. Worth & Denver City, and this road does not allege that it was on one of its bills of lading or blanks, or that it was a new and independent contract from that originally entered into by the initial carrier, but simply alleges that it was made for a valuable consideration before the transportation of said cattle was undertaken by the defendants.

Under the facts as proven and under the condition in which we find the pleadings, we hold that there was no error showing injury in sustaining the exceptions of Boger to the Ft. Worth & Denver City Railway Company’s answer.

We have concluded that the motion should be overruled.


source: Caselaw Access Project

author: HENDRICKS, J.

license: Public Domain

text:
    PECOS & N. T. RY. Co. et al. v. MORRISON.
    (No. 646.)
    (Court of Civil Appeals of Texas. Amarillo.
    July 4, 1914.
    On Motion for Rehearing, Oct. 10, 1914.)
    1. Carriers (§ 218) — Transportation op Live Stock — Limited Liability — Statutes.
    The statute forbidding common carriers to limit or restrict their common-law liability in any manner, and making any special agreement in contravention thereof void, applies to the transportation of live stock; and hence a contract, attempting to relieve a carrier from liability for injuries to hogs from overheating, due to the carrier’s negligence in failing to flush the hogs and cars with water before they become overheated, was invalid.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 674-696, 927, 928, 933-949; Dec. Dig. § 218.]
    2. Carriers (§ 215) — Transportation of Live Stock — Common-Law Liability.
    With the exception provided by,Rev. St. 1895, art. 326 (now Rev. St. 1911,. art. 714), authorizing a carrier to contract that the shipper shall feed and water his live stock during transportation, and the common-law exceptions to liability where loss occurs from act of God, act of the owner, the proper vice of the animals, ,or the public enemy, for which the carrier is not responsible, it is an insurer of the safe transportation of animals delivered to it for carriage.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 923; Dec. Dig. § 215.]
    3. Carriers (§ 211) — Transportation of Live Stock — Damages — Hogs — Overheating — “Feed and Water.”
    Rev. St. 1895, art. 326 (now Rev. St. 1911, art. 714), provides that a carrier conveying live stock must feed and water the same during transit and until the same is delivered to the consignee, unless otherwise provided by a special contract. Held, that the words. “feed and water” refer to the internal necessities of the animal as sustenance, and not to external applications, as an avoidance of injury produced by climatic conditions or unventilated cars; and hence a provision in a contract for the shipment of hogs, requiring the shipper to feed and ■water the hogs, did not relieve the carrier from the duty to flush the cars and hogs if necessary to prevent injury from overheating.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 926-928; Dec. Dig. § 211.

    For other definitions, see Words and Phrases, Second Series, Water.]
    4. Appeal ahd Eeeor (§ 1050) — Rulings on Evidence — Prejudice.
    Since a carrier engaged in shipping hogs was under a common-law duty to drench the hogs with water en route to prevent injury from overheating, and damage resulted from a failure to perform such duty, the carrier was not prejudiced by evidence that plaintiff directed the agent accepting the hogs on behalf of the carrier to instruct the carrier’s conductors to see that the hogs were watered and drenched en route, when necessary.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1008, 1069, 4153-4157, 4166; Dec. Dig. § 1050.]
    Appeal from Hale County Court; W. B. Lewis, Judge.
    Action by T. W. Morrison against the Pecos & Northern Texas Railway Company and others. Judgment for plaintiff, and defendants appeal.
    Affirmed. Rehearing denied.
    Madden, Trulove & Kimbrough, of Amarillo, for appellants. Graham & Graham and Mathes & Williams, all of Plainview, for ap-pellee.

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

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

   HENDRICKS, J.

The appellee Morrison sued the appellants, the Pecos & Northern Texas Railway Company and the Texas & Pacific Railway Company, as common carriers, alleging damages on account of the death of a certain number of hogs in a two car load shipment from Plainview to Ft. Worth, Tex., asserting negligence of the railway company in failing to flush the hogs and the ears in which they were transported, as became necessary to prevent them from being overheated, also claiming injury to the live hogs arriving at destination. The contract of shipment, executed by appellee’s agent, after the hogs were loaded at Plain-view, preparatory to transportation, contained the usual stipulation in contracts of this character as to the shipment of live stock, and in this instance, to the effect that the shipper, at his own risk and expense, would properly care for, feed, water, and attend to said hogs in the pens of the company while awaiting shipment, and during the whole period of transportation, with the usual additional stipulation that the carrier would not be liable for any loss or damage accruing to the shipment while in the shipper’s charge. The appellants contend that the shipper was bound by this contract, and assert, though it may have been their duty to have provided reasonable facilities for the purpose of affording the shipper the means of administering to the welfare of the hogs, however, that the duty of the carrier extended no further than the proper transportation of the hogs to destination, and. further contend that the record, being devoid of any testimony that they assumed the care of the hogs, extraneous from the train service, they are not liable; the swine having a shipper in charge. Appellee replies that the contract is void; that the hogs were delivered to the initial carrier, and accepted by it tfor transportation, upon an. oral contract of shipment before any written contract was mentioned, prepared, or signed, and was without consideration, also claiming that the covenants in the contract were based, as a consideration, upon a reduced freight rate which was never given by the carrier; to that contention the carrier answered that appellee was an experienced shipper over the same railroads for years, and that in each instance he signed, or authorized the execution of, similar contracts containing the same provisions, and knew that the written contracts only, and not oral contracts, were the basis of free transportation for the party accompanying the shipments; that when the hogs were delivered, each of the parties, in its preliminary arrangements, was acting in an habitual method, with the view and ex-’ pectation, carrying with it an implied un--derstanding that the usual contracts of shipment were to be executed and issued expressing the intentions and engagements of the parties. The evidence bears out this latter theory of appellants, and, if the contract under consideration were valid, and required the shipper to assume the duty, the failure of which injured the swine, and if the law permitted the carrier to contract this duty away and burden the shipper with the same, we would be prone to sustain the seventh assignment of error, criticizing the seventh paragraph of the charge of the court as containing injurious error — the trial court made the validity of the written contract of shipment depend upon some new consideration, distinct from the oral contract, disregarding the feature that such written contract may have been contemplated by the parties from the inception of the transaction.

The record suggests that the cause of the death of the hogs, en route, and the injury to the live hogs arriving at destination, was an overheated condition of the animals, and which could have been avoided by an application of water over the hogs at a time before they became heated, or their condition could have been alleviated by a flooding of the car, and bedding underneath the hogs, and which was not done in either instance. Two of the trainmen testified to the effect that they desired to flush the hogs and the car, but that Sterns, the shipper’s agent in charge, refused to permit it to be done, which issue was charged by the court, to the jury, but which contention the jury refused to accept. If the issue could have been maintained, appellants would have" established one of the exceptions to the common-law rule that a common carrier is an insurer— the fault of the shipper—and should have been exonerated. The testimony was that it was the failure of external application of water, which was the negligence producing me injury, and not the failure to water the hogs internally; and a proper consideration of the fourth paragraph of the charge *of the court argues that he submitted the issue of an external application, and not a failure to give the hogs water • as sustenance, as the negligence in this respect, instructing the jury, “and (if) you further find that said failure on the part of defendants was caused by their negligence and carelessness in not properly flushing said car an<J said hogs, then you will find for the plaintiff the actual market value,” etc.

Our statute, providing, in substance, that common carriers shall not limit or restrict their liability, as it exists at common law, in any manner whatever, and that any special agreement made in contravention is void, precludes the defense that the railroads in this case were exonerated by spe‘cial contract from the duty of avoiding the injury to the hogs.

The transportation of live stock comes within the purview of this statute. Railway Co. v. Trawick, 68 Tex. 314, 4 S. W. 567, 2 Am. St. Rep. 494; Railway Co. v. Harris, 67 Tex. 166, 2 S. W. 574. Justice Stayton said in the Trawiek Case, “Under the statute of this state, a railway company must receive and transport, and, after receiving, it becomes the insurer of them, as in the case of other property, which it is bound to transport, against loss from any cause, except,” the court naming the familiar exceptions. It is true that at common law a contract reasonable in its terms could be made, limiting the carrier’s liability, by limiting its duty and shifting the duty to the shipper; but in intrastate shipments a special contract cannot shield the carrier, as Justice Stayton further expresses it, “from any liability that would have existed had it [the contract] not been made”; and the decision further expressly holds that, “the duties and liabilities imposed on common carriers are in-severable,” and further clearly implies that an attempted transition, or shifting of duties imposed by.the common law, by an attempted special contract, is a limitation or restriction of liability specifically invalidated by the statute. If, within this state, “A railroad company must receive and transport live animals as other property, and, after receiving, it becomes an insurer of them, as in the case of other property which it is bound to transport,” we will assume, without argument, that it would be a common-law duty of the carriers in this instance to at least exercise that care, commensuate with the character of the property transported, to avoid loss and injury to the hogs.

We are not overlooking the right of a carrier to specially contract that the shipper shall feed and water his live stock during transportation, which is expressly recognized by R. S. 1895, art. 326 (now 714), and the extent to which the common-law duty and liability of a common carrier may be shifted and restricted. However, with this exception, and the common-law exception, where the loss occurs from the act of God, the act of the owner, the “proper vice” of the animals, or the public enemy, the common-law duty of the common carrier is unrestricted.

The last article prescribed that:

“It shall be the duty of a common carrier who conveys live stock of any 'kind to feed and water the same during the time of conveyance and until the same is delivered to the consignee, * * * unless otherwise provided by special contract,” etc. ,

The statute evidently meaning that it is the duty of the carrier to sufficiently feed and water the stock in transportation unless the “feeding and watering” of the same is otherwise provided by agreement; and we do not believe that an external application of water for the purpose of preventing an overheated condition of the hogs is a watering of the hogs intended by that statute, which the carrier could shift to the shipper by special contract. It means the internal necessities of the animal as sustenance, and not an external application as an avoidance of the injury produced by climatic conditions; or unventilated cars, if- such latter case were to arise; neither do we think that the equivalent expression in the contract (excluding the general expression of the care of the hogs by the shipper, providing that the shipper shall feed and water the animals during the period of transportation, means an external application for the purposes indicated. Justice Breese, in the case of Ill. Cent. R. R. Co. v. Adams, 42 Ill. 487, 92 Am. Dec. 85, said:

“The phrase ‘feeding and watering,’ as used in the contract, has reference alone, qs we understand the contract, to the ordinary sustenance such animals require in the course of transportation, while the negligence complained of, and for which the railroad company is sought to be charged, is the application of water externally to hogs confined in cars, causing them to become much heated, and from which speedy death ensues if they are not promptly relieved by this application.”

As to the particular expressions used in the contract and in the statute, we think the meaning is the same. The susceptibility of the hogs to overheating, and the danger of death resultant therefrom, is, of course, not a common-law exception within the term “proper vice” of the animal or inherent weakness, over which the carrier would have no control. Hence if the character of duty and the liability of the common carrier correlative thereto is not one that the Legislature has permitted it to restrict and limit, then the statute imposing the common-law: liability has full force:

“The law puts the risk upon the common carrier, and not upon the shipper, and in this state, at least, it must remain there until .the Legislature relieves against it in favor of the carrier. * * * In this state we are bound to hold to the common-law principle. Our Legislature has so declared, * * * and we are not at liberty to go beyond it.” Ry. Co. v. Levi (Sup.) 12 S. W. 677.

As to the proximate cause of the injury to the hogs, and as to the duty of the common carrier to avoid that injury, and as to the issue upon which the liability of the common carrier was evidently determined, the drenching of the hogs, or the car in which the same were shipped, the contract attempted to be invoked by the railway company, as to the duty of the shipper to care for and attend to the hogs during the transportation of same, was void and in violation of the statute, as a restriction of the duty and liability' of the carrier, and the several assignments in appellants’ brief bearing upon this question are overruled.

The appellants assign that:

“The court erred in admitting over the objections of this defendant the testimony of the plaintiff, Morrison, in reference to the directions and instructions given by him. to the agent, Klinger, at Plainview, Tex., in reference to instructing the conductor to see that plaintiff’s hogs were watered and drenched en route when necessary.”

Under the same assignment the appellants include another specification of error, complaining that the trial court erred in refusing to give the following special charge:

“The court charges you not to consider the testimony of the plaintiff, T. W. Morrison, that he requested the agent, Klinger, to instruct the conductors en route to flush said hogs.”

Appellants’ first proposition is that they “were not bound by instructions * * * to the conductors, in reference to watering and drenching said hogs when necessary” ; and the second proposition is, “The plaintiff having entered into a valid written contract for the shipment of his hogs, the testimony complained of in the foregoing assignment was * * * inadmissible for any purpose.” It is argued that a local agent for a railway company, in the absence of express authority, has no right to bind his company concerning matters and transactions beyond his own station, as well as outside of his department of service, citing, among other cases, Railway Co. v. Belcher, 88 Tex. 549, 32 S. W. 518, and Railway Co. v. Jackson & Edwards, 99 Tex. 343, 89 S. W. 968. Waiving the criticism of. appellee that there is a double specification of error comprehended within one assignment, if we were to decide that the testimony was not admissible, we are unable to see any injury to appellant. If Klinger had instructed the “conductor to see that plaintiff’s hogs were watered and drenched en route, when necessary,” said instruction would have been no more than the obligation imposed by law upon the carriers with reference to the care of the hogs. If the common-law duty is imposed upon the carrier to care for the hogs, and could not have been shifted to the shipper’s agent, this record is conclusive that the hogs were not drenched from Plainview to Ft. Worth, and that the injury, the death of some of the hogs and the depreciation in others, occurred. As stated, the jury solved the question against the carriers that the shipper’s agent was at fault in not permitting the trainmen to drench the hogs en route, and if the contract does not apply to that issue as a proximate cause of the injury (the carrier, legally speaking, proven to have been at fault), such testimony is ■ harmless.

The fourth assignment of error, criticizing the fourth paragraph of.the charge of the court, is unavailable as against the objection presented — the charge is not upon the weight of the testimony. We have attempted to carefully consider all assignments, and conclude an affirmance of thq cause.

Affirmed.'

On Motion for Rehearing.

Appellants, in their motion for rehearing, announce that:

“The common law, as recognized by our courts, is the same as recognized by all the courts of our country, and in reason there should not be a different application of the common law upon this subject in interstate shipments from that of intrastate shipments.”

The difference is, in intrastate shipments, that any limitation of common-law liability, or of the common carrier’s duty, by any special agreement between the carrier and shipper, is declared void by special statute. If it were the duty of the Carrier at common law to exercise ordinary care to drench the hogs during transportation, then the statute, as Justice Stayton expresses it in the Tra-wick Case, cited in the main opinion, “deprives such carrier of the right to limit its liability by contract, even as 'to matters which it might legally contract under common law. The common-law duties and liabilities, and not those duties and liabilities as they may be affected by contracts lawfully under the common law, are the duties and liabilities of common carriers under the statutes of this state, and they cannot be restricted or limited by any contract or agreement whátever, in cases to which the statute is applicable.” Except the statute providing for special contracts between the shipper and the carrier, permitting the transition of duty to the shipper to feed and water live stock, there is no other statute which would permit by contract, in intrastate shipments, an assumption of the burden to care for such live stock during the period of transportation in any other manner. Surely the external application of water to this character of live stock to prevent overheating would be, under certain conditions, a common-law duty. If sp, such a duty cannot be contracted away, though such a contract may have been lawful under the common law, unless article 741 would permit a special contract between the parties for that purpose, which is clearly not. broad enough in its scope.

The motion for rehearing is, in all things, overruled.


author: HODGES, J.

text:
    ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. CHRISTIAN.
    (No. 1132.)
    (Court of Civil Appeals of Texas. Texarkana.
    July 2, 1914.
    Rehearing Denied Oct. 8, 1914.)
    1. Carriers (§ 348) — Injuries to Passengers — Falling from Train — Defenses— Intoxication.
    In an action for injuries to a passenger, by falling from an open vestibule, there being evidence that he went to the vestibule to drink liquor, and that he was intoxicated at the time, defendant .was entitled to the giving of a request to charge that the verdict should be for it, if, when plaintiff was injured, he was under the influence of liquor, and had he not been so, he would not have fallen from the platform; since, while intoxication is not negligence per se, that condition, when voluntarily brought on, does not relieve the individual from the duty to exercise the same degree of care for his own safety that is exacted of persons not so affected.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1403-1405; Dec. Dig. § 348.].
    2. Carriers (§ 348) — Injuries to Passenger — Contributory Negligence — Instructions.
    In an action for injuries to a passenger, while intoxicated, by falling from the open vestibule of a railroad coach, the court charged that if an ordinarily prudent person would not have gone on the platform under similar circumstances, and if in attempting to go into the coach plaintiff fell through the vestibule trap and door, or if plaintiff was intoxicated and such condition contributed to cause him to fall from the train, and an ordinarily prudent person would not, under the circumstances, have gone on the platform in such condition, then, in either event, he was negligent and could not recover, though defendant was negligent in leaving the trap and door open. At defendant’s request, the court also charged that, if plaintiff was under the influence of liquor, such fact would not relieve him of the duty to exercise the same care for his own safety that would be exercised by an ordinarily prudent person under similar circumstances, and that defendant was not required to use a higher degree of care for his safety than it was required to use for other passengers, and that, if the jury believed that had plaintiff exercised the required care he would not. have been injured, then he could not recover. Held, that neither of such instructions presented the isolated question of plaintiff’s intoxication, as a contributing cause, as explicitly as defendant had a right to demand.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1403-1405; Dec. Dig. § 348.]
    3. Trial (§ 260) — Request to Charge — Instructions Given.
    Where the court charged that, if the jury believed that plaintiff, when he fell from the open vestibule of defendant’s coach in which he was riding, was intoxicated, that fact would not relieve him from the duty of exercising the same care for his own safety that would be exercised by an ordinarily prudent person under similar circumstances, nor was defendant required to use greater care to provide for his safety than for other passengers, and that, if plaintiff had used the required care for his own safety, he would not have been injured, then he could not recover, such instruction sufficiently covered a request to charge that plaintiff was negligent if he went on the platform to drink liquor, or drank liquor there, based on a statute prohibiting the drinking of liquors on railroad trains.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.]
    4. Trial (§ 194) — Instructions—Weight of Evidence.
    In an action for injuries to an intoxicated passenger by a fall from the open vestibule of defendant’s coach, an instruction that the doors of the vestibule should have been closed and that it was negligence on defendant’s part not to use a high degree of care to accomplish that end, was erroneous as on the weight of the evidence; there being no duty on the carrier, as a matter of law, either to provide passenger coaches with vestibules or to keep the doors thereof closed.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 413, 436, 439-441, 446-454, 456-466; Dec. Dig. § 194.]
    Appeal from District Court, SmitF County; R. W. Simpson, Judge.
    Action by J. M. Christian against the St. Louis Southwestern Railway Company of Texas. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    E. B. Perkins and D. Upthegrove, both of Dallas, and Marsh & Mcllwaine, of Tyler, for appellant. Lasseter & Mcllwaine and N.. A. Gentry, all of Tyler, for appellee.

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

   HODGES, J.

In October, 1910, the appellant ran a special vestibuled train, in two sections, ten minutes apart, from Tyler, by way of Corsicana, to Dallas and return, to accommodate people attending the state fair;. These trains were transported over the appellant’s line to Corsicana, where they were transferred to the tracks of the Trinity & Brazos Valley Railway and by the latter carried to Dallas and back to Corsicana, at which place they were again transferred to-the appellant and brought over its line to Tyler. The appellee, J. M. Christian, was a passenger on the return trip from Dallas on the first section of that train. After leaving Corsicana, and some time near midnight, and while between stations, the appellee fell from the platform of the car in which he was riding, and ■ sustained injuries for which he brought this suit.

The testimony shows that after leaving Corsicana thé appellee, in company with one Charles Erwin, went to the front platform of the coach in which he was riding, and stood there for some time. Erwin had a bottle of whisky," from which he drank and invited others to drink, and appeared to be under the influence of liquor. After the appellee and Erwin had been standing on this plat-. form for some time Erwin rushed into the coach and announced that the appellee had fallen from the train. The door and “trap” of that end of the coach were open, and presumably the appellee fell from the steps or platform by reason of the door and “trap” being left open. The next coach in front of the ear occupied by the appellee and his companions was the baggage car, and there was no occasion for passengers to pass upon that platform except in getting on and oft the train at stations, or as a loitering place. The testimony was conflicting as to whether' or not the appellee was intoxicated at the time he fell from the train. While admitting that he had previously talren several drinks of beer and whisky, he denied being under the influence of drink. He had no recollection of how he fell or what particular circumstance caused him to fall. The fall rendered him unconscious, and he remained by the side of the track in that condition for several hours until picked up by other parties the next morning. Charles Erwin, who was with him at tlie time, and who appears to have been the only eyewitness to the fall, did not testify upon the trial. After the information given to the train employes that the appellee had fallen, the conductor was requested to stop the train in order that friends might go back and look for him. This was refused upon the ground that the train was being run in sections, ’ and the second section was only about ten minutes behind. Appellee’s friends were therefore compelled to go on until the next station was reached, when they got off and returned on the next train going in that direction. Some time after sunup they found the appellee lying by the railroad track in an unconscious condition. He remained in that condition for some hours afterwards.

The appellee alleged negligence in two respects: (1) In permitting the vestibule and “trap” doors to be left open; and (2) in failing and refusing to stop and back the train to the place where the appellee had fallen off, or to stop the train so that the appellee’s friends might go to his assistance. The appellant pleaded general denial, contributory negligence, and specially pleaded that the ap-pellee was intoxicated at the time he fell from the train, and that his fall was directly and proximately caused by that condition. The jury returned a verdict in favor of the appellee for $1,500.

The first group of assigned errors complain of the refusal of the court to give six special charges requested by the appellant. These charges, in effect, asked the court to instruct the jury to find for the defendant if they believed from the evidence that at the time the plaintiff was injured he was under the influence of beer or whisky, and that had he not been under the influence of such intoxicant he would not have fallen from the platform. While intoxication is not per se negligence, that condition when voluntarily brought on does not relieve the individual of the duty of exercising the same degree of care and prudence, for his own protection that is exacted of those not under the influence of liquor. If at the time the appellee fell from the train he was to any extent under the influence of intoxicants and that condition caused him to fall; in other words, if he would not have fallen had he not been in such condition, then he is not entitled to recover, and the jury should have been so instructed. H. & T. C. Ry. Co. v. Bryant, 31 Tex. Civ. App. 483, 72 S. W. 885; Fox v. Mich. Central Ry. Co., 138 Mich. 433, 101 N. W. 624, 68 L. R. A. 336, 5 Ann. Cas. 68, and notes; 3 Hutchinson on Carriers, § 1230.

The court in his main charge gave the following instructions:

“If you shall find that an ordinarily prudent and cautious person, under the same or similar circumstances, would not have gone upon the platform, at the time and under the circumstances in which the plaintiff did, and if, in attempting to go into the coach, he fell through the vestibule trap and door, or, if you shall find that plaintiff was intoxicated on the occasion in question, and that his intoxicated condition (if you find he was in such condition) contributed in causing him to fall from the train, and if you find that an ordinarily prudent and cautious person would not, under the same or similar circumstances, have gone upon the platform in such condition, then, in either event, he was guilty of contributory negligence, and cannot recover, although you may also find that the defendant was negligent in leaving'the said trapdoor open (if it did).”

At the request of the appellant he gave the following special charge:

“If you believe from the evidence in this case that plaintiff at and prior to the time of the accident , was under the influence of intoxicating liquors, then you are charged that the fact that he was so under the influence of such intoxicating liquors would not relieve him from duty to exercise the same care and caution for his own safety that would be exercised by an ordinarily prudent person under similar circumstances, nor under the evidence in this case was the defendant required to use a higher degree of care and caution to provide for his safety than it was required to use in providing for the safety of its other passengers; and if you believe from the evidence that, had plaintiff exercised that degree of care and caution for his own safety that would have been exercised by an ordinarily prudent person under similar circumstances, he would not have been injured, then it will be your duty *to return a verdict for the defendant.”

It is contended by the appellee that these charges sufficiently submitted the issue embodied in the special charges requested and refused. We are of the opinion that neither of these charges presents the isolated question of intoxication as a contributing cause as explicitly as the appellant had a right to demand under the pleadings and the evidence. To have given all of the special charges requested upon that subject would have made the issue too prominent. The third special charge refused is as follows:

“You are charged that if you believe from the evidence that at the time of the accident plaintiff was under the influence of liquor to such an extent as to prevent him from exercising ordinary care and caution for the protection of his person, although he might not have been entirely under its influence, and that such condition of plaintiff caused or contributed to cause him to receive the injuries of which he complains, it will be your duty to return a verdict for the defendant.”

Either this or the fourth or the sixth requested charges should have been given.

The seventh, eighth, and ninth assignments refer to a group of refused special charges "which were intended as instructing the jury, in effect, that the. appellee was guilty of contributory negligence if he went out on the platform of the car for the purpose of drinking intoxicating liquors, or) drank such liquor while there. This proposition is based upon the fact that the drinking of intoxicating liquors on railroad trains is prohibited by law in this state. Without expressing any approval or disapproval of that proposition, we overrule the assignments upon the ground that the special charge given at the instance of appellant sufficiently covered the issue.

The court gave as a part of his main charge the following:

“It was the duty o-f the defendant to use that high degree of care which a very cautious and prudent person would have used under the same or similar circumstances to keep the vestibule door and .trap closed at the point where the plaintiff is alleged to have fallen off the train, and a failure to perform such duty would be negligence upon the part of the defendant. * * * Now, if you shall find that the trap and door to the vestibule were open at the point where the plaintiff is alleged to have fallen off the train, and if you shall find that such open condition of the trap and door resulted from a failure to exercise that high degree of care which a very cautious and prudent person would have used under the same or similar circumstances to have kept the vestibule door .and trap closed, then if you shall further find that, as the direct and proximate result of the trap and door of the vestibule being open, as plaintiff attempted to go from the platform into the car he fell through said open trap and door, and was injured, you will find for the plaintiff, unless' you find plaintiff was guilty of contributory negligence, or assumed the risk of injury therefrom, under the charge hereinafter given.”
It is contended that this charge is on the weight of the evidence, and we think it is subject to the criticism. Dallas Con. El. Ry. Co. v. Stone, 166 S. W. 708 and cases cited. It, in effect, tells the jury that those doors should have been closed, and that it was negligence on the part of the railway company not to use a high degree of diligence to accomplish that end. There is no statute requiring railway companies, to equip their trains with .vestibules and doors like those upon the ear from which the appellee fell. Neither is the use of cars without vestibules and doors so unsafe for the traveling public that the courts may assume, as a matter of law, that such equipments are essential to the proper discharge of the carrier’s duty to its passengers. It is a matter of common knowledge that some passenger coaches have no vestibules. It is also well known that leaving those doors open does not make the cars to which they are attached any more unsafe than if the doors had never been placed there. It was for the jury to say whether or not it was negligence to leave those doors open.

The assignments not discussed are overruled, but, on account of the err'ors indicated the judgment is reversed, and -the cause remanded.


text:
    YATES v. CASWELL et al.
    (No. 1262.)
    (Court of Civil Appeals of Texas. Texarkana.
    June 10, 1914.
    Rehearing Denied June 25, 1914.)
    1. Mortgages (§ 38) — Absolute Deed as Mortgage — Sufficiency of Evidence.
    In trespass to try title to land conveyed by defendant to plaintiffs’ father by a deed which defendant claimed was given to secure a debt, evidence held insufficient to support a verdict for plaintiffs.
    ■ [Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 108-111; Dec. big. § 38.]
    2. Mortgages (§ 38) — Character of Transaction — Evidence.
    Where, in trespass to try title, the testimony of the notary public who prepared a deed that at the time it was executed the parties agreed that the deed was to secure a debt was uncontradicted., and there w.as nothing tending to impeach his credibility, the jury had no right' to disregard such evidence.
    [Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 108-111; Dec. Dig. § 38.]
    3.' Mortgages (§ 139) — Loss of Equity of Redemption — Necessity of Conveyance.
    Where an absolute deed was given to secure a debt, the beneficial'interest in the property remained in the grantor until her equity of redemption was conveyed in writing for a valid consideration.
    [Ed. Note. — For other cases, see Mortgages, Cent. Dig. § 278; bee. Dig. § 139.]
    4. Evidence (§ 265) — Admissions—Conclusiveness.
    In trespass to try title to land conveyed by defendant to plaintiffs’ father by a deed which she claimed was intended to secure a debt, the testimony of one of the plaintiffs that defendant stated that she tried to buy the place and borrow the money, but could not buy it, so plaintiffs’ father bought it and she never owned it, would not support a verdict for plaintiffs, in the absence of evidence of title in plaintiffs, except through the deed from defendant to their father; since, if defendant never owned the land, her deed conveyed nothing to plaintiffs’ father and they had no title.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1029-1050; Dec. Dig. § 265.]
    Appeal from District Court, Smith County; R. W. Simpson, Judge.
    Action by James Caswell, as guardian of Addie Daniels and another, against Julia Yates. From a judgment for plaintiffs, defendant appeals.
    Reversed and rendered.
    E. P. Price, of Tyler, for appellant. Gentry & Caétle, of Tyler, for appellees.

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

   HODGES, J.

This suit was filed in January, 1909, by Jas. Caswell, as the guardian of v Addie and Annie Daniels, against Julia Yates, to recover the possession of a house and, lot in the city of Tyler. The petition was in the ordinary form of an action of trespass to ,try title. This is the second appeal, the former being reported in 126 S. W. 914.

The facts are not materially different from those adduced upon the first trial. The minor plaintiffs claim the land as the children and heirs of Ned Daniels, who died in 1907. As evidence of their title they offered a deed, absolute in form, from the appellant, Julia Yates, purporting to convey the property in controversy to Ned Daniels for a cash consideration of $55, dated July 17, 1905. With proof of heirship the appellees rested their case. The appellant pleaded that this deed from her to Daniels was intended by the parties thereto as a mortgage, and was executed to secure the payment of a debt of $20 due to Daniels. In proof of those facts she offered in evidence the deposition of Joe J. White, a notary public, who testified, in substance, as follows: On July 17, 1905, at the instance of Daniels and Julia Yates, the witness prepared a warranty deed from Julia Yates to Daniels, and took the former’s acknowledgment to the same. No other parties were present except the three. Yates and Daniels agreed in the presence of witness that this deed was to secure the payment of a note, which then amounted to $20, held by another party and which was bought by Daniels on that day. That Daniels agreed to deed the property back to Julia Yates when she had paid this note, principal and interest. Witness suggested to the parties at the time that it' would be better to draw a mortgage for the purpose of securing this debt; but they had agreed on this form, and carried it through. Henry Donaldson, -another witness for the appellant, testified that in January and February of 1905 he did some work for her in the way of finishing a house on her place and for which she paid him. T. O. Williams testified that in March, 1905, he loaned the appellant $55, and to secure its payment took from her a deed of trust on some land. It was subsequently shown that the land embraced in that deed of trust is the same as that involved in this suit. Appellant testified in her own behalf that she had been living on the lot in controversy nearly 23 years, but had owned it only 12 or 13 years; that she built a house on it some months before she executed the deed to Daniels. About 2 years prior to the death of Daniels he began rooming with her, and died at her house in 1907. Daniels had paid the taxes a part of the time for the rent of the room which he occupied. In rebuttal the appellees proved by Addie Patrick, one of the appellees, who had married after the institution of this suit, certain statements made by the appellant before the death of Ned Daniels regarding the ownership of this property. On her direct examination she testified as follows:

“Julia said that Papa paid for the lumber; that is what she said. She told me that when we got to talking about the home place; she told it all concerning the place, all together. She told it all. Papa.brought it up, is how she came to be telling me all about it. Miss Julia told us about the place. She told us that Papa paid for the place, and that that was our home place; ‘while you live, this is you-all’s home; I haven’t got any home at all;’ and said, ‘The lumber — Ned paid for the lumber and all,’ and her brother brought some of the lumber up there and Papa paid her brother for it.”

On cross-examination the witness testified as follows:

“Julia said, T tried to buy the place and I could not buy it;’ and she said, ‘N*ed got some money from his ma’s death, and had money, and I tried to borrow the money from Ned, and Ned would not loan me no money;’ and she said she tried to buy the place and could not pay for it. I suppose she could not pay for it. She tried to borrow the money from Papa, and Papa would not loan her the money. She said she tried to buy this place and tried to borrow the money from my father, and she could not buy the place, so he bought the place, and she had never owned it; that is what she said; that she had never owned the place, that is what she said; said she had never owned the place, and tried to borrow money from my father to buy the place, and he would not let her have it; then my father went and bought the place. She said that — I suppose, I don’t know — that is what she said. She went in and tried to buy the place, and could not make the money to buy it with.. She said she started to buy the place, and said she could not pay for it, and so she said she told Ned: ‘Well, Ned, you buy the place; you won’t loan me the money to pay for the place.’ She told me that -she told my father to go and buy the place from the owner — the fellow that owned it; that she did ’ not have money enough and she could not own it; that is what she said.”

She further stated that Julia Yates told her that Ned Daniels bought the land from the owner, who she thought “was a fellow by the name of Anderson;” that the conversation she was undertaking to detail took place about a month before her father’s death. Julia Yates denied ever having made any of the statements attributed to her by this witness. N. A. Gentry testified that he knew the property in controversy, and that it was worth about $800; that at the date of the deed to Ned Daniels it was worth from $300 to $500. Upon this evidence the jury returned a verdict in favor of the plaintiffs in the suit.

It is now contended, as on the former appeal, that the evidence is not sufficient to support the verdict; and we think that contention should be sustained. According to the testimony of White, this deed to Daniels was a mortgage given to secure the payment of a debt. This testimony was by deposition, was undisputed, and there is nothing in the record which in any way tends to impeach White’s credibility. The jury therefore had no right to disregard this evidence. Long v. Shelton, 155 S. W. 945; Yates v. Caswell, 126 S. W. 914.

If this deed executed by Yates to Daniels was at its incipieney a mortgage, it remained such. Once a mortgage always a mortgage is a legal maxim. That being its nature, the beneficial interest'in the property— the equity of redemption — remained in Julia Yates until surrendered by her in some legal form. This equity of redemption was an interest in the land, which could only be conveyed in writing supported by a valid consideration. Peugh v. Davis, 96 U. S. 332, 24 L. Ed. 775; Mooney v. Byrne, 163 N. Y. 86, 57 N. E. 163; 1 Jones on Mortgages, §§ 250, 251. There was no evidence offered by the appellees tending to show that Julia Tates eVer parted with her equity. The testimony of Addie Patrick is clearly inconsistent with the facts upon which the appellees rely for their title. If the statements attributed by her to Julia Yates be true, then the appellees have shown no title, and for that reason are not entitled to recover. They must rely for evidence of title upon the validity of the deed from Julia Yates to Ned Daniels, executed in 1905. If Julia Yates never, in fact, owned the land, then her deed conveyed nothing to Daniels, and the appellees have shown no title from any other source.

This is the second trial of this case, and there appears to be no necessity for remanding it for further development.

The judgment will therefore be reversed and here rendered for the appellant, without prejudice to the right of the appellees to foreclose any lien which they may hold against the property. All costs, both of this court and of the court below, will be adjudged against the appellees.


text:
    HOUSTON & T. C. RY. CO. v. MEADORS.
    (No. 1326.)
    (Court of Civil Appeals of Texas. Texarkana.
    May 21, 1914.
    Rehearing Denied May 28, 1914.)
    1. Appeal and Error (§ 1040) — Review — Prejudice — Rulings on Pleadings.
    Refusal to sustain a special exception to a portion of plaintiff’s original petition seeking damages for expenses incurred in undertaking to sell horses, injured in transportation, at other places after their arrival at destination, was harmless, where the verdict showed that the jury did not include any of such items therein.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4089-4105; Dec. Dig. § 1040.]
    2. Appeal and Error (§ 742) — Instructions —Refusal to Change — Review—Record.
    Refusal to submit a particular defense could not be held erroneous on appeal, where there was no statement from the record, following defendant’s ássignment of error, indicating that there was any testimony to support such defense.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    3. Carriers (§ 230) — Transportation of Animals — Delay—Disease—Instructions.
    Where there was evidence of unreasonable delay in defendant’s transportation of plaintiff’s horses, and that such delay tended to cause the horses to contract “shipper’s cold,” a request to charge that the verdict should be for defendant, if the horses were damaged by “shipper’s cold,” without reference to the cause producing the disease, was properly refused.
    [Ed. Note. — For- other cases, see Carriers, Cent. Dig. §§ 961, 962; Dec. Dig. § 230.]
    Appeal from Tarrant County Court; Charles T. Prewett, Judge.
    Action by S. T. Meadors against the Houston & Texas Central Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    C. M. Templeton and Theodore Mack, both of Ft. Worth, for appellant. Jas. C. Scott, 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

   HODGES, J.

The appellee filed this suit to recover damages amounting to $915.25, for injuries to a shipment of horses from Ft. Worth to New Iberia, La. The' original petition charges negligence in the handling of the stock and in unreasonably delaying the shipment. It is claimed that by reason of the delay the stock were caused to contract shipper’s cold, from which three of them died and others were damaged. It isc also alleged that by reason of the damaged condition and the unfavorable appearance of the stock on arrival at their destination, the owner was unable to sell them at that place, and was compelled to carry them to other markets in the vicinity of New Iberia in order to dispose of them. He included in the damages claimed those expenses, as well as the depreciation in the market value of the stock. The jury returned the following verdict:

“We, the jury, find for the plaintiff for the death of three horses $355, injury to one horse $115, total $470, with interest at 6 per cent, from August 12, 1912.”

The first assignment of error complains of the refusal of the court to sustain a special exception to that portion of the plaintiff’s original petition seeking damages for the expense incurred in undertaking to sell the horses at other places after their arrival at destination. The verdict rendered, showing that the jury did not include any of those items in the verdict, renders that ruling harmless.

It is also claimed that the court erred to the prejudice of the defendant in not submitting to the jury in the general charge the defense pleaded by the defendant. It is true the charge of the court did not present any of the- defenses set up in the answer. Three special charges, however, presenting those defenses were given. There is no statement from the record following this assignment which indicates that there was any testimony tending to support the defenses omitted. For aught that appears to the contrary, there was none. The court is not required to present a defense pleaded, but which is not sustained by the evidence.

Appellant also requested a charge instructing the jury to find for the defendant if they believed the horses were damaged by contracting distemper or shipper’s cold. The testimony showed that the car in which the horses were shipped left Ft. Worth on the night of Monday, February 19, 1912, and did not reach Houston until in the afternoon of the following Thursday. There was evidence introduced tending to show that this was an unreasonable delay. It was also proven that such delay, involving the standing oi the car upon the traelr for a considerable length of time, had a tendency to cause the horses to contract the disease known as “shipper’s cold.” That being true, it was not proper for the court to instruct a verdict for the defendant if the stock were damaged by shipper’s cold, without reference to the causes which produced that disease. If this malady resulted from the negligent delay of the stock, the appellant was liable for the resultant injury.

The remaining assignments of error are overruled, and the judgment is affirmed.


author: HENDBICKS, J.

text:
    QUANAH, A. & P. RY. CO. et al. v. CHUMBLEY et al.
    (No. 645.)
    (Court of Civil Appeals of Texas. Amarillo.
    July 4, 1914.
    Rehearing Denied Oct. 10, 1914.)
    1. Partnership (§ 219) — Action by Firm-Parties — Pleading and Judgment.
    That plaintiffs sued as a partnership in an action for damages to a shipment of horses consigned by the firm did not render erroneous a joint judgment in favor of them as the individual members of the firm, where the evidence was conflicting whether the horses belonged to the firm, or part of them belonged to one partner and the rest to the other.
    [Ed. Note. — For other cases, see Partnership, Cent. Dig. §§ 429-440, 442-445; Dec. Dig. § 219.]
    2. Appeal and Error (§ 499) — Assignment of Error — Objection Below — Instructions.
    An assignment of error complaining of an instruction given in the main charge, could not be considered on appeal, where the record, though containing written objections to the general charge, failed to show whether such objections were presented before or after the main charge was delivered to the jury.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2295-2298; Dec. Dig. § 499.]
    3. Appeal and Error (§ 499) — Assignment of Error — Objection Below — Submission op Issues.
    An assignment of error, complaining of the giving of a special charge requested by plaintiff, could not be considered on appeal, where the record failed to show that objections were made to such charge when it was presented to defendant’s counsel for examination and objection, in accordance with Rev. St. 1911, art. 1973, relating to requested instructions.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2295-2298; Dee. Dig. § 499.]
    Appeal from Cottle County Court; W. E. Prescott, Judge.
    Action by J. M. Chumbley and others against the Quanah, Acme & Pacific Railway Company and others. From a judgment for plaintiffs, defendants appeal.
    Affirmed.
    Decker & Clarke, of Quanah, for appellants. Bell & Bell, of Paducah, for appellees.

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

   HENDBICKS, J.

This suit was originally instituted in the county court of Cottle county by J. M. Chumbley'against the Quanah, Acme & Pacific Bailway Company for damages alleged to have arisen on account of a shipment of one car of horses from Paducah to Whitewright, Tex., and thereafter George C. Chumbley intervened in said suit, as the alleged partner of J. M. Chumbley, and the Ft. Worth & Denver City Bailway Company and the Missouri, Kansas & Texas Bailway Company were also made parties defendant. The live stock contract evidences a shipment of the horses by “Chumbley & Son,” as the consignors, to G. A. Chumbley as consignee, and the judgment of the court, predicated upon answers to special issues, found by the jury, was in favor of the plaintiffs, G. A. Chum-bley and J. M. Chumbley.

The appellants assign that:

“The judgment of the court is not supported by the plaintiffs’ pleadings, the verdict of the jury, and the evidence, in that plaintiffs sued as a partnership, the partnership being denied by defendants’ verified plea, and all the evidence being to the effect that there was not a joint or common ownership of the horses shipped, but that J. M. Chumbley owned 2 head and George Chumbley owned 29 head of the horses, and the court rendered judgment in favor of J. M. Chumbley and G. A. Chumbley, whether as partners not being" determined.”

The evidence of one of the owners is contradictory, in that on direct examination he testifies that the partnership was the owner of the 31 head of horses delivered to the railway companies, while on cross-examination the testimony is specific that the witness owned 29 head of the horses individually, and that the other member of the partnership was the individual owner of the other 2 head. However, the judgment being a joint judgment, in favor of G. A. Chumbley, and J. M. Chumbley against the defendants, for the amount apportioned against each, the only theory upon which it could have been rendered is that it is in their favor as the individual members constituting the partnership of “Chumbley & Son,” who were the consignors of the horses under the written contract of shipment, and for that reason we think the assignment should be overruled. Assuming appellants’ theory that the evidence discloses individual ownership in the horses transported, however, we see no reason why Chumbley & Son and the individual members composing said partnership could not recover the damages, as such consignors. Associate Justice Gaines said, in the case of Missouri Pacific Railway Co. v. Smith, 84 Tex. 350, 19 S. W. 510:

“We think the plaintiff had a right to sue alone, although the horses may have been the partnership property of himself and another.”

The record in the above ease was that the plaintiff, under a special contract in writing made between him and the railway company, shipped the horses owned by the partnership. In this case the partnership, and necessarily the individual members composing it, constituted the consignor, and the judgment is in favor of the individuals composing the partnership, which is merely the converse of the other proposition decided by the Supreme Court. See Southern Kansas Railway Co. v. Morris, 100 Tex. 611, 102 S. W. 396, 123 Am. St. Rep. 831; Cleveland v. Heidenheimer, 92 Tex. 108, 46 S. W. 30.

The appellant assigns error, criticising an instruction given by the court to the jury; but the presentation of the objection, and the exception to the charge of the court, is not adequately preserved in the record. There are written objections in the record to the general charge of the court, which were evidently called to the attention of the court at some time, but when presented — whether before or after the main charge by tie court was delivered to the jury — -is not shown. The indorsement of the trial court is:

“Approved and ordered filed as a part of the record of this case.”

Although previously decided, this court, in the case of Gulf, Texas & Western Railway Co. v. G. L. Culver, 168 S. W. 514, May 30, 1914, not yet officially reported, took occasion to fully review this same matter. In the case of St. Louis & Southwestern Railway Co. of Texas v. Wadsack, 166 S. W. 43, the Texarkana Court of Civil Appeals presents the same construction.

The appellant also assigns error as to the action of the trial court in submitting to the jury a certain special charge requested by the plaintiff. They object to the particular special charge, for reasons not necessary to enumerate, but the time of the presentation of the objections is likewise not exhibited in this record. We think the Thirty-Third Legislature, in its amendment relating to the time and manner of submitting instructions to the jury, and providing for objections and exceptions thereto, equally intended, with reference to special instructions submitted by a litigant and given to the jury by the trial court, that the opposite party should present objections and preserve exceptions exhibiting the presentation of same before the special charge was read to the jury in the same manner and to the same effect as objections and exceptions to the general charge. The same reasons and the same policy are equally applicable to the presentation of objections to the court before he reads the special charge to the jury as to the presentation of objections to the general charge. The special charge is as much the court’s charge, after having been approved, as his general charge, and the error in same, if any,-if conceived to exist by opposing counsel, when presented to him for examination and objection in accordance with article 1973, Rev. St., should be pointed out to the trial court in equally the same manner as to the presentation of objections and preservation of exceptions as to the general charge:

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

Appellants assign error:'

“That the testimony shows that the only depreciation in the market value of the horses was the sum of $25 to two horses, which wei'e injured.”

A careful consideration of this record, regarding the matter exclusively as a jury question, destroys this objection, and the judgment of the trial court is in all things affirmed. ■