author: RAINEY, C. J.

text:
    WHARTON v. FIDELITY MUT. LIFE INS. CO. OF PHILADELPHIA.
    (Court of Civil Appeals of Texas. Dallas.
    April 5, 1913.
    Rehearing Denied May 3, 1913.)
    1. Principal and Surety (§ 23) — Existence of Relation — Contracts—Execution.
    An agency contract of a life insurance company contained on the back thereof rules reciting that the agent must furnish a bond with two sureties, and a statement with reference to their financial responsibility. A bond executed by the agent and one surety had printed at the bottom thereof a “notice to sureties” that not less than two sureties were required. The surety had not read the rules and did not rely on the notice. The company had no knowledge of the representations by the agent to the surety that another surety would be procured before delivering the bond; not had the company authorized the making of such representations. Held, that the company accepting the bond signed by but one surety could hold the surety; it not being bound by the representations of the agent.
    [Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 45-54; Dec. Dig. § 23.]
    2. Principal and Surety (§ 23) — Existence oe Relation — Contracts—Execution.
    One signing an obligation as surety on condition that another shall also sign it is not bound when the other does not sign it and when the obligee has notice of the condition, but, where the obligation is delivered to an ob-ligee who has no knowledge of the condition, the surety is liable.
    [Ed. Note. — Eor other cases, see Principal and Surety, Cent. Dig. §§ 45-54; Dec. Dig. § 23.]
    3. Principal and Surety (§ 101) — Discharge op Surety — Modification of Contract.
    A surety on a bond which binds him to all changes or modifications made in the contract between the obligor and obligee is not discharged from liability because of material modifications.
    [Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 169-180; Dec. Dig. § 101.] ■
    4. Limitation of Actions (§ 47) — Actions on Bonds — Limitations.
    Where the relation of employer and em-ployé was severed by the employer's refusal to make advances provided for in the contract, and the employé ceased to work for the employer, the contract was terminated' and limitations began to run on a bond given by the employs conditioned on his accounting for all moneys received by him, and an action on the bond brought more than four years thereafter was barred by limitations, though the employs owed the employer money.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 254-258; Dec. Dig. § 47.]
    5. Limitation of Actions (§ 199) — Actions on Bonds — Limitations.
    Whether an action on a bond conditioned on an employs accounting for moneys received by him was begun within four years after the termination of the employment held, under the evidence, for the jury.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 727-730; Dee. Dig. § 199.]
    Appeal from District Court, Grayson County ; W. M. Peck, Judge.
    Action by the Fidelity Mutual Life Insurance Company of Philadelphia against J. H. Wharton. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded for new trial on a single issue.
    Jesse F. Holt, of Sherman, for appellant. Hamp. P. Abney and Head, Smith, Hare, Maxey & Head, all of Sherman, L. J. Polk, Jr., of Brownsville, and Jones & Hassell, of Sherman, for appellee.

      For other cases 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-

   RAINEY, C. J.

W. C. Wharton was the agent of the Fidelity Mutual Life Insurance Company of Philadelphia, and as such executed a bond in the sum of $700, conditioned, among other things, for the faithful performance of his duties. J. H. Wharton signed said bond as the only surety thereon. W. C. Wharton failed to pay over moneys claimed to be due appellee by him, and appellee sued to recover the amount of said bond, alleging insolvency of said W. C. Wharton, etc.

Defendant, after a general denial, pleaded specifically under oath that he was not liable, because: (1) Under the terms of the written contract of employment specifically referred to and in effect adopted in the bond, it was agreed by the appellee that it would require at least two sureties on said bond, with a statement as to the financial responsibility of each, before it would be accepted, and that, in addition to the provisions of the contract, appellee had given express-notice to appellant that it would require at least two sureties, and that such notice-was inserted in the face of the bond itself, and that, in violation of the contract for two-sureties and in violation of the express notice in the bond that two sureties would he-required before acceptance, appellee had accepted the bond with only appellant as-surety; (2) that the principal, W. C. Whar-, ton, had expressly promised to get another surety before delivering the bond to appellee, and represented that the same would not be accepted without at least two sureties, all of which were known to appellee, and that with this knowledge it accepted the bond with only one surety, without appellant’s-knowledge and consent; (3) that the contract provided that only the sum of $18 per week should be advanced to said W. G. Wharton, and that for traveling expenses, but that after the bond was delivered to-appellee the said contract was materially altered, or deviated from, in that an agreement was made to advance much more than. $18 per week and for other than traveling; expenses and for purposes not authorized by the contract and such advances made;1 (4) that the amount involved was less than the-jurisdiction of the court; and (5) the four years statute of limitation.

By supplemental pleadings, after a general denial, appellee pleaded specially that under the laws of Arkansas, where it was-alleged the bond was performable, appellant became liable absolutely under the bond and could not be heard to deny liability or to plead any matter of fact affixing a condition to his liability as surety. A trial was had before a jury, and a verdict by direction of the court and a judgment were rendered in favor of the appellee for the amount of the-bond, and J. H. Wharton appeals.

Appellant complains of the refusal to give the following charge: “At the instance of the defendant the jury is instructed as follows: ‘The contract and bond in this case are for the court to construe. The contract dated March 22, 1901, obligated the-plaintiff to require two sureties upon any bond given by the said W. O. Wharton, and obligated him to procure two sureties thereon, with statement as to financial responsibility of each. This contract was in existence when the defendant signed said bond and is referred to in said bond. Under the law the plaintiff had no right to waive the-requirement of two sureties after defendant had signed said bond, without his consent, and the undisputed proof shows that he did not consent to accepting said bond with only one surety, and you are therefore instructed to find a verdict for the defendant.’ ”

The signature of J. I-I. Wharton to the bond as surety was procured by W. C. Wharton. The bond was conditioned: “That if the above-bounden principal, W. C. Wharton, of Texarkana, Ark., his heirs, executors, administrators, or any of them, shall well and truly promptly pay, or cause to be paid, unto the above-named the Fidelity Mutual Life Insurance Company, or its legal representatives, any and all moneys which may come into his hand as agent of or for said company, and shall pay, or cause to be paid, to. said company all loans or advances made to him by said company on account of future commissions or otherwise, shall not incur any indebtedness for advertising, office rent, purchase of supplies, or for any matter or thing whatsoever in the name of .the company, without the written consent of the president, and shall and do in all things well and truly observe, fulfill, and keep all and singular the articles, clauses, provisions, conditions, and agreements whatsoever, which, on the part of the said W. C. Wharton, are or ought to be observed, performed, fulfilled, and kept, comprised, and mentioned in any or all contracts or agreements heretofore or hereafter made between him and the said Fidelity Mutual Life Insurance Company, or its representative, according to the purport, true intent, and meaning of the same, or contained and mentioned in any change or modification of the same, then this obligation to be null and void, or else to remain in full force and virtue.”

The bond was printed, and there was space left for the signatures of three sureties, and thereunder, at the bottom, was printed this notice: “Notice to Sureties. — Not less than two sureties are required in every case, but it is expressly understood that individual as well as joint liability attaches from date of signature.” On the back of the agency contract, between appellee and W. C. Wharton, was printed certain “rules, regulations, and instructions,” which were evidently for the guidance of agents, and among them was this: “Eighth. All agents are required to furnish a good and sufficient bond, with at least two sureties, and a statement with reference to the financial responsibility of the sureties must accompany every bond.”

There is no. evidence by appellant that he ever read the rules on the contract of W. C. Wharton with appellee, or relied on the notice in regard to the requirement of two sureties on the bond, nor does he say that the procuring of one other surety was a condition upon which he signed the bond, and, if so, there was no proof that appellee had knowledge of the representations claimed to have been made to appellant by W. C. Wharton in reference to procuring other sureties, or that appellee had authorized the making of said representations. The evidence, we think, shows that appellee did nothing by which appellant was deceived or that caused him to be deceived in signing the bond. The fact that it had a rule requiring two or more sureties on a bond was for its own protection, and not for the benefit of those who might sign as sureties, and when appellant signed the bond he did so at his own risk. The company was not bound by the representations of W. C. Wharton, as he was not representing the company in getting the bond signed, but was working for himself in order that he might retain the position of solicitor for the company.

The authorities hold that a party signing an obligation as surety on the condition that another is also to sign it, and, if that other does not sign it, he is not bound thereon when the obligation is delivered, and the obligee has notice of the condition upon which the surety signed it. But when the obligation is delivered to the obligee, and he has no knowledge of the conditions upon which the surety signed it, the surety is liable and cannot defeat the obligation on the ground that the condition was not complied with. Bopp v. Hansford, 18 Tex. Civ. App. 840, 45 S. W. 748; Chamberlain v. Hodgetts, 99 S. W. 162; French v. Hicks, 52 Tex. Civ. App. 427, 114 S. W. 691.

In the case of French v. Hicks, supra, cited by appellant in support of his position, this court held that the surety was not liable, but in that case the bond had a stipulation that, if there were three sureties signing the bond, it was to be binding, and “not otherwise.” This clause being a part of the bond, it was, by its very terms, inoperative, and the obligee was bound to take notice Ithereof. The case at bar is a different case. While appellant had notice that appellee had a rule to require two or more sureties, it had the right to waive that requirement and accept the bond with one surety thereon.

Appellant’s second assignment presents virtually the same questions as that discussed under the first assignment, and, as what we have said under that assignment applies with equal force to this one we deem it only necessary to say here that the assignment is not well taken.

The next assignment relates to the refusal of a special charge on the question of. the change of the contract of appellee and W. C. Wharton after the execution of the bond, which change was the allowance of $25 per week advancement for traveling expenses, instead of $18 per week, as stated in the contract. The appellant is in no position to complain along this score, for the appellee in the bond signed by appellant made provision for this condition by binding him to all changes or modifications made in the contract between W. O. Wharton and the appellee. Being thus bound, appellant is liable for such changes. We understand the general rule of law to be that when a material change is made in a contract without the consent of the surety it will avoid a contract as to him, but not as in this case, where the surety agreed that changes could be made. This and the fourth assignment relating to the same subject are overruled.

This brings us to the question of limitation pleaded by appellant. The appellant requested the corirt to charge as follows, which was refused: “This suit was filed February 18, 1911. If you find from the evidence that W. C. Wharton’s contract was terminated with plaintiff (that is to say, plaintiff ceased making advancements to pay traveling expenses of W. O. Wharton, and W. 0. Wharton ceased working for plaintiff under said contract prior to February 17, 1907) you will find for defendant.” The testimony on this issue was as follows:

W. O. Wharton testified: “I do not remember the exact date I quit working for them, but think the date the last advance of $2,500 was made was about when I quit, and it is dated December 14, 1906. The last two weeks that I worked for the company I spent at Plummerville, Ark. When I failed to receive a check for my expenses, I wrote to Mr. Bright, but received no answer. Then I wrote him a second letter asking him to send check, but received no answer. Then I called him by telephone and asked him why he had not sent check, and he told me he had instructions to make no further advances to me. I have never received a letter from the company, nor any one representing the company, relative to their refusal to make further advancements to me, and have never written a letter to the company, nor any representative of the company relative to the matter. When Mr. Bright told me in our conversation over the telephone that no further advancements would be made, our contract, of course, was terminated, as I could not work, without sufficient funds to meet my expenses. I do not remember the exact date on which I ceased working for the plaintiff, but think it was in December, 1906, or January, 1907. I ceased working for the company at this time because the company failed and refused to make further advances with which to meet my expenses, and this terminated the contract. Prior to this time they had not ceased making me the weekly advances. I quit working about two weeks from the time I received the last check from plaintiff for expenses.”

R. C. Bright, appellee’s state manager, testified: “He did not sever his relations with the plaintiff, but we did not renew his certificate of authority. He defaulted the condition of his bond, and we were first apprised of this about March 1, 1907. I mean when- I say the contract was not formally terminated that we did not. give him the 30 days’ notice required in the contract and he did not give us the 30 days’- notice. The contract has not yet been terminated. We ceased making advancements to cover traveling expenses in December, 1906. He wanted us to continue making advancements of traveling expenses, but we refused to advance any further money to cover traveling expenses and explained to him the reason. This was in' December, 1906. That is when the last advancement of $25 per week was made, but we advanced him $i5 January 25, 1907. That was for expenses, or for account of expenses. He called me up over the phone and was continuing his work and asked me to send him $15; that he needed it so he could get out and get business. That is the item in the account of date January 25, 1907. Draft, $15. - That is the last advance made to him to cover traveling expenses. Other items in the account bearing date of March, 1907, were some unfinished business he had on hand at the time. Adjustments of outstanding business. He may have had notes due or to become due in the hands of the company, and he certainly had a few policies even at that time that he had not disposed of. There is a credit some time in March, 1907, of $130 which was unfinished business which he had written prior to January 25, 1907.”

This evidence raises an issue that should have been submitted to the jury for their determination.

If the relation of employer and employé had been severed, as stated by W. O. Wharton, by appellee refusing to make the advances provided for in the contract, and Wharton had ceased to work for the company, the contract was then terminated, and the statute of limitation began to run, and the fact that Wharton owed appellee money does not affect the question.

As all of the questions raised in the case, except that of limitation, are herein decided against appellant, the trial court need not try any other question but that of limitation, and the cause is reversed and remanded for the trial of that issue.


source: Caselaw Access Project

author: TALBOT, J.

license: Public Domain

text:
    TEXAS MIDLAND R. R. v. CUMMINS.
    (Court of Civil Appeals of Texas. Dallas.
    April 5, 1913.
    Rehearing denied May 3, 1913.)
    1. Appeal and Eeeoe (§§ 743, 760) — Assignments op Eeeoe — Beiep—Rules op Court.
    Where neither the assignments of error, complaining of the denial of a continuance, mu-tile brief of appellant point out the paragraph of the motion for new trial wherein the error is complained of, the assignments and brief do not conform to Court of Civil Appeals rules 24, 25, 31 (142 S. W. xii, xiii), relative to preparing a cause for submission and the briefs, and the assignments will not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2999, 3011, 3095; Dec. Dig. §§ 743, 760.]
    2. Appeal and Eeeoe (§ 743, 760) — Assignments op Eeeoe — Beief—Rules op Court.
    Where an assignment of error complained of the refusal to sustain a designated paragraph of the motion for new trial on the ground that the verdict is contray to the law and the evi-. dence, and the brief of appellant showed the pages of the transcript where the motion could be found, the assignment and brief substantially complied with Court of Civil Appeals rules 24, 25, SI (142 S. W. xii, xiii), and the assignment will be considered.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 2999, 3011, 3095; Dec. Dig-. §§ 743, 760.]
    3. Trial (§ 143) — Question foe Juey— Conflicting Evidence.
    Where the evidence is conflicting, but not so decidedly one way as to be susceptible of but one just opinion, the court may not withdraw the question from the jury.
    [Ed. Note. — Eor other cases, see Trial, Cent. Dig. §§ 342, 343; Dec. Dig. § 143.]
    • Appeal from District Court, Kaufman County; F. L. Hawkins, Judge.
    Action by C. B. Cummins against the Texas Midland Railroad. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Henry O. Coke, of Dallas, and Dasheill, Crumbaugh & Coon, of Tdrrell, for appellant. Lee R. Stroud, of Kaufman, and Wynne & Wynne, of Wills Point, for appellee.

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

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

   TALBOT, J.

C. B. Cummins, the appellee, sued the appellant, Texas Midland Railroad, for damages in the sum of $24,500, and alleged that on February 9, 1911, about -5 o’clock a. m., he bought a ticket from defendant’s agent at Paris, Tex., to Jacksonville, Tex., by " way of Kaufman, Tex; that he boarded defendant’s train and became a passenger, but before the train left he went out of said train for the purpose of getting a grip he had left in defendant’s depot; that he got down the car steps safely, but when he started for the depot after the grip, the depot grounds being very dark, his foot, while elevated in stepping, struck on top of a long plank something like a two by eight, which seemed to him to be set up on edge as if for a curb; that this plank caused him to stumble; that the edge of the plank was or seemed to him to. be rounded, that the dirt or gravel or filling of the platform on the inside of the plank or curb was gone, so that there was nothing for his toes to rest on; that this left him with all his weight resting on one foot on the top of the edge of the plank which was several inches high on the outside next to the cars, so that he had to fall forward on the platform or backward off of it; that in struggling to balance himself to avoid falling either way he fell backwards off the platform with his whole weight on the foot which had caught on said plank; that he was thereby caused to fall very hard with his head and shoulders under the edge of the car; that he was a large man,- and, all his weight being thrown on one foot and leg, he received a great injury, and his ankle, leg, and foot were strained and sprained, his knee was injured, his hip strained and bruised; that he had thereby been made a cripple for life; • that, although assisted by others who came to his rescue, his foot and ankle became rapidly worse; that he had to stop off at Kaufman and call in a physician; that he suffered great pain and anguish; that he always followed callings that required much walking and .getting about, and that his injuries had disabled him from doing so in the future; that when injured he was a salesman for an Automatic Jack Company, and was earning $25 per day net; that he would and could have continued to earn said sum but for his injuries. Plaintiff alleged that defendant was negligent in allowing said plank to be where it was; that said plank was too close to the cars; that its top edge was round and worn; that there was no filling either on the inside or outside of said plank; that the depot grounds were dark and not lighted. Defendant answered by general and special exceptions, general denial, and specially plead that its depot grounds were sufficiently lighted, that its platform was of brick, with smooth, hard surface; that the platform of cinders was not put down until 10 days after the accident, and further that plaintiff, while bothered and worried about his grip, which he had left in the depot, hurriedly left the train, going very fast; that it was raining, the steps slippery from the rain, and as plaintiff came down said steps his foot slipped on one of said steps, and he fell and sustained his injuries; that said' injuries to plaintiff were the result of his contributory negligence in hurriedly leaving the ear as ¿fore-said. The case was tried before the court and a jury, and the trial resulted in a verdict and judgment for plaintiff in the sum of $2,500, and the defendant appealed.

Appellant’s first and second assignments of error are grouped and complain of the court’s action in overruling its applications to continue the case for the term or postpone the trial thereof to a latter day of the term at which it was tried. Neither of these assignments nor the brief point out the paragraph of the defendant’s motion for a new trial wherein the supposed error of the court in refusing to postpone or continue the cause was complained of, and .the assignments are not therefore, in compliance with the rules governing the preparation of cases for submission in this court, and not entitled to consideration. Indeed, neither the assignments nor the brief at any place disclose that said supposed error was called to the attention of the trial court in defendant’s motion for a new trial at all. That such an assignment, under amended rule 24 and rules 25 and 31 (142 S. W. xii, xiii), should not be considered, can hardly be questioned. This court has declined several times recently to consider such an assignment. Railway Co. v. Ledbetter, 153 S. W. 646; and Lee v. Moore, 158 S. W. -; Brewer v. Blythe & Co., 158 S. W. -; Benton v. Kuykendall, 156 S. W. -; Railway Co. v. White, 158 S. W. -; Railway Co. v. Pemberton, 155 S. W. 652; Elmo Rock Co. v. Sowders, 155 S. W. 270, decided by this court, .and not yet published. We will say, however, that it appears that this was appellant’s third application for a continuance, and that, if the assignment was properly briefed, we should be constrained to hold, under the many decisions of out appellate court upon the subject, that the trial court did not abuse its discretion in the rulings complained of.

The third and fourth assignments are to the effect that the court erred in failing to sustain the seventeenth paragraph of the defendant’s second amended motion for a new trial filed July 19, 1912, which reads as follows: “The verdict of the jury is contrary to the law and the evidence, in this: that the evidence showed there was no plank on defendant’s platform at Paris, and that defendant’s said platform was made of brick, and was smooth and in good condition, and not made of cinders.” This assignment does not strictly comply with the rules, in that the page of the transcript where the paragraph of the motion for a new trial therein referred to may be found is not stated (rule 31), but we have concluded to consider it. The paragraph of the motion for a new trial wherein the matter complained of was set forth is disclosed by the assignment and the pages of the transcript where said motion may be found are given in the brief. This we regard as a substantial compliance with the rules, or such an effort to comply with them as entitles the assignment to consideration. Texas Company v. Strange, 154 S. W. 327 decided at this term, but not published. Does the assignment point out reversible error? We think not. The question raised by it is one of fact, which was properly submitted to the jury for their determination. The evidence was conflicting, but not so decidedly one way as to be susceptible of but one just opinion. This being true, the court was not authorized to take the question from the jury. Joske v. Irvine, 91 Tex. 574, 44 S. W. 1059.

The fifth and sixth assignments of error are, in substance, that the court erred in failing to sustain the nineteenth paragraph of the defendant's motion for a new trial filed July 19, 1912, which reads thus: “The verdict of the jury is contrary to the law and the evidence, in this, that the evidence clearly shows that the defendant’s platform at Paris was sufficiently lighted to enable passengers to enter the cars without difficulty.” Like the third and fourth assignments of error, these assignments do not strictly comply with the rules, but for the reasons stated in discussing the third and fourth assignments of error these assignments will be considered, and for similar reasons given for overruling said third and fourth assignments they will also be overruled. Whether the “defendant’s platform at Paris was sufficiently lighted to enable passengers to enter the cars without difficulty,” or to exonerate defendant from the plaintiff’s charge of negligence in that said platform was not sufficiently lighted, was an issue of fact for the jury. The evidence was conflicting on this question, but clearly sufficient to require the submission of it to the jury, and the jury having resolved it in favor of appellee we would not be warranted in disturbing their verdict.

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

      Rehearing pending


text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. TAYLOR.
    (Court of Civil Appeals of Texas. Dallas.
    March 29, 1913.
    On Motion for Rehearing, May 3, 1913.)
    1. Appeal and Error (§ 216) — Objections Below — Instructions — Necessity op Request.
    If an instruction in an action against a railroad for injuries at a railroad crossing was defective in not expressly submitting the issue whether plaintiff was injured, the defendant should have requested a special charge specifically submitting that issue, and, not having done so, cannot object on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 216; Trial, Cent. Dig. §§ 628, 629.]
    2. Railroads (§ 347) — Crossing Accidents —Actions—Admission op Evidence.
    In an action against a railroad company for injuries by striking plaintiff’s wagon at a street crossing, in which the evidence raised the issue as to whether the speed of the train proximately caused plaintiff’s injuries, published ordinances prohibiting trains running at a speed exceeding six miles an hour were admissible.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1124-1137; Dec. Dig. § 347.]
    On Motion for Rehearing.
    3. Damages (§ 216) — Instructions—Personal Injuries.
    The court instructed in an action against a railroad company for injuries at a street crossing that, if the jury found for plaintiff, they should allow him such sum of money “as will now in cash reasonably compensate him for the injury, if any, he may have received as the proximate cause of defendant’s negligence, if any,” and might consider plaintiff’s lessened ability to labor and earn money, if any, and any physical pain and mental anguish suffered up to the present time, and might further consider any lessened ability to labor and earn money in the future that plaintiff might have sustained, and any further physical pain and mental anguish he may suffer in the future, if any, as may be proximately caused by defendant’s negligence. Seld, that the instruction was not misleadingly erroneous, in that it did not require that any damages allowed for future physical and mental pain must be predicated upon past negligence, as alleged and proved, especially in view of a further charge that plaintiff could not recover for any injuries received- at any other time, or from any other source than at the time and the place as alleged in the petition.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 548-555; Dec. Dig. § 216.]

      Appeal from District Court, Hunt County; T. D. Montrose, Judge.
    Action by Hersbel Taylor against tbe Missouri, Kansas & Texas Railway Company of Texas. Prom a judgment for plaintiff, defendant appeals.
    Affirmed.
    Alex. S. Coke, of Dallas, and Dinsmore, McMaban & Dinsmore, of Greenville, for appellant. J. S. Sherrill and Evans & Carpenter, both of Greenville, for appellee.

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

   TALBOT, J.

This suit was brought by the appellee against appellant to recover damages for personal injuries alleged to have been inflicted upon him through the-negligence of appellant’s agents and employés on or about the 6th day of June, 1911. The petition alleges, in substance, that at and before the time of the injuries complained of the defendant railway company operated and maintained railway yards with numerous tracks and switches in the city of Green-ville, Tex., said tracks crossing Henry street, the street running east and west and the railway tracks running north and south; that said street was traveled by a great many people on foot, on horseback, and in vehicles of various kinds, and the defendant operated a great many engines and cars over and across said street rendering the crossing very dangerous, and making it necessary, in the exercise of ordinary care, that the defendant have and maintain a flagman at said crossing to warn people using said street of the approach of engines and cars, and that defendant failed to have and maintain a flagman at said crossing; that on the day the accident resulting in plaintiff’s injuries occurred defendant had several strings of box cars standing on its tracks south of Henry street, some of the cars extending into said street; that plaintiff was traveling in a wagon drawn by a pair of gentle mules going westward over the crossing, and his view to the south was obstructed by said standing cars, and he could not see a string of cars on another track west of said standing cars which was being backed into the street at a rapid rate of speed, and that as plaintiffs team reached a point immediately west of the track on which the cars were being backed, said cars barely missing the rear end of his wagon, the sudden appearance of the rapidly moving ears caused plaintiffs team to become frightened and to jump forward with a quick and heavy plunge, thereby throwing plaintiff down in his wagon, striking his back on a cotton seed fork and the bottom of the wagon and seriously injuring him; that on the occasion of plaintiff’s injuries said cars which frightened plaintiff’s team were being run at a greater rate of speed than six miles per hour in violation of an ordinance of the city of Green-ville; that in approaching said street crossing defendant’s servants failed to sound the whistle or ring the bell of the engine as required by statute; that in failing to have and maintain a flagman at said crossing, in having said cars standing on said tracks as alleged, in running said cars at a greater rate of speed than six miles per hour, and in failing to sound the whistle or ring the bell of the engine in approaching said crossing, defendant was in each of said particulars guilty of negligence which proximately caused or contributed to plaintiff’s injuries. Defendant answered by a general denial an(I pleas of contributory negligence. The case was tried before the court and a jury, and the trial resulted in a verdict and judgment in favor of the plaintiff for the sum of $2,000, and the defendant appealed.

The first assignment complains that the third paragraph of the court’s general charge is error because it does not directly submit as an issue of fact whether or not plaintiff was injured, but assumes that he was injured. We are inclined to think that the evidence, practically without contradiction, shows that plaintiff was injured as the result of defendant’s negligence in some or all of the ways alleged, but, if it be conceded that such was not its effect, the charge did not assume that plaintiff had sustained injury, but conditioned plaintiff’s right to recover damages upon a finding from the evidence that he had been injured by the negligence of defendant.

If the charge is subject to the criticism made by appellant, to the effect that it does not expressly submit the issue of whether or not plaintiff was injured, appellant should have requested a special charge more directly and specifically submitting the issue.

■It is also assigned that the court erred in submitting to the jury as grounds of negligence upon which a recovery might be had, the movement and backing of a train of cars toward the crossing at the time plaintiff was going over the same, the speed of the train, the failure to ring the bell on the locomotive, and the act of defendant in allowing box cars to stand on the railroad tracks on and near the street crossing obstructing the view of travelers. It is contended that some of the foregoing grounds of negligence submitted to the jury were not made issues by the pleadings, and none of them by the evidence. We do not agree with this view. The pleadings and evidence were sufficient to authorize the submission of each and all of the issues here referred to, and the charge in the several respects complained of furnishes no sufficient ground for a reversal of the case. Clearly, in view of the pleadings and evidence, we would not be warranted in holding that these issues were not raised.

The sixth, seventh, and eighth assignments of error complain of the court’s charge on the measure of damages. The sixth asserts that the charge fails to tell the jury the injuries for which the plaintiff would be entitled to compensation was meaningless, and left' the jury without a guide in measuring damages; the seventh asserts that the charge authorized the assessment of speculative damages and compensation for remote, uncertain, and problematic future suffering of body and mind and physical disability; the eighth asserts that the charge authorized the assessment of damages for injuries which may be proximately caused in the future by negligence of the defendant. The charge of the court is as follows: “If you find for the plaintiff, you will allow him such sum of money as will now in cash reasonably compensate him for the injury, if any he may have received, as the proximate cause of defendant’s negligence, if any. And you may take into consideration plaintiff’s lessened ability to labor and earn money, if any, since said time, and any physical pain and mental anguish he may have suffered, if any, as proximately caused by the negligence, if any, of defendant.” This charge conforms substantially in all essential particulars to charges which have been sustained repeatedly by our courts, under a similar state of facts, is not subject to the objections urged to it, and furnishes appellant no just ground of complaint.

The court did not err in permitting the plaintiff to read in evidence from the published ordinances of the city of Greenville an ordinance prohibiting the running of trains within the city limits of said city at a speed exceeding six miles an hour. Proof of the ordinance was properly admitted, because the testimony raised the issue as to whether "or not the speed of the train was the proximate cause or proximately concurring cause of plaintiff’s injuries.

Nor did the court err in refusing to grant a new trial for either of the reasons stated in appellant’s tenth and eleventh assignments of error. The evidence was sufficient to support the charges of negligence made in the plaintiff’s petition, and we are not prepared to say in view of the testimony in the record that the verdict is excessive.

Our conclusion is that none of appellant’s assignments disclose reversible error, and that the judgment of the lower court should be affirmed.

It is therefore accordingly so ordered.

On Motion for Rehearing.

In copying the court’s charge on the measure of damages in our original opinion a part of it was inadvertently omitted. The charge in full is as follows: “If you find for the plaintiff, you will 'allow him such sum of money as will now in cash reasonably compensate him for the injury, if any, he may have received as the proximate cause of defendant’s negligence, if any. * * * And you may take into consideration plaintiff’s lessened ability to labor and earn money, if any, since said time, and any physical pain and mental anguish he" may have suffered, if any, as proximately caused by said injury, if any, up to the present time;‘ and you may further take into consideration any lessened ability to labor and earn money in the future that plaintiff may have sustained, if any, and any other physical pain and mental anguish he may suffer in the future, if any, as may be proximately caused by the negligence, if any, of defendant.” The objections to this charge are stated in the original opinion. The charge is not as clear and accurately expressed as it might have been, but we are still of the opinion that it is substantially correct, and that its imperfections are not of such character as to have misled the jury.

The meaning of the first clause of the charge is sufficiently clear, although not expressed in the language usually employed, to justify the conclusion that the jury understood that the injury therein referred to was "such injury as was proximately caused by the negligence of appellant; that is, such injury as appellee received as the proximate result of appellant’s negligence. Nor do we think it is likely that the jury were misled by the last clause of the charge, and induced thereby to believe, as seems to be contended by appellant’s counsel, that in allowing ap-pellee damages they were authorized to give him compensation for some remote, uncertain, and problematic future suffering of body" and mind based upon some future negligence of appellant. Attributing ordinary intelligence to the jury, it must be presumed that they understood by the charge, although awkwardly, and in a measure, inaccurately, framed, that while they were authorized to consider any future physical and mental pain the appellee might probably suffer as a consequence of his injury, yet that any damages allowed must be predicated upon past negligence of appellant and as alleged in ap-pellee’s petition, and shown by the evidence. But especially could no harm have resulted to appellant by reason of the imperfections of the court’s charge under consideration in view of the sixth paragraph of the charge. This paragraph is as follows: “You are further charged that the plaintiff is not entitled to recover for any injuries that he may have received at any other time, or from any other source than the injury, if any, he may have received at the time and place as alj leged in his petition in this cause.” We have reconsidered on this motion all of appellant’s assignments of error, with the conclusion reached that all questions presented have been heretofore correctly decided.

The motion for a rehearing is therefore overruled.


author: RASBURY, J.

text:
    BRAND v. ODOM et ux.
    (Court of Civil Appeals of Texas. Dallas.
    April 12, 1913.)
    1. Principal and Agent (§ 157) — Powers oe Agent — Representations of Agent.
    In a vendor’s action to rescind a sale of land, the declarations and false representations of an agent acting for both parties as to the title and location of land securing notes given by the purchaser, made within the scope of his authority, and which were but repetitions of statements made to him by the purchaser, were admissible against the purchaser; the rule invoked against an agent acting adversely to the interests of his employer having no application.
    [Ed. Note. — Dor other cases, see Principal and Agent, Cent. Dig. § 588; Dec. Dig. § 157.]
    2. Vendor and Purchaser- (§ 38) — Vendor’s Misrepresentation and Fraud as to Title.
    Where a purchaser, if possessed of any information as to his • title to the land securing his notes given for the land he bought, and the incumbrances thereon, knew that he was wholly without title, his representations of good title to the land were fraudulent; and, if he knew nothing at all about the title, his representations were equally fraudulent, and -the fact that he believed he had a good title would not change the rights of the. vendor who believed such representations to be true and relied thereon.
    [Ed. Note. — For other eases, see Vendor and Purchaser, Cent. Dig. §§ 61-65; Dec. Dig. § 38.]
    3. Vendor and Purchaser (§ 44) — Vendor’s Action to Rescind — Sufficiency of Evidence-Reliance upon False Representations.
    Evidence in a vendor’s action to rescind a sale of land held sufficient to show that he relied upon false representations of the purchaser, but for which he would not have made the sale.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 69-76; Dec. Dig. § 44.]
    Appeal from District Court, Ellis County; F. L. Hawkins, Judge.
    Action by A. A. Odom and wife against J. D. Brand. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    Tom P. Whipple, of Waxahaehie, for appellant. Farrar & McRae, of Waxahaehie, for appellees.

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

   RASBURY, J.

On July 29,-1910, appellees owned in fee simple 185 acres of land in Smith county, a particular- description of which is unimportant, and on that day conveyed same by general warranty deed to appellant. On December 23, 1910, following, .appellees sued the appellant in the district court of Ellis county, alleging that said land was conveyed to appellant in .consideration of appellant’s note for $150, secured by lien on the said land and the transfer and delivery to appellees of three vendor’s lien notes for $500 each, executed by A. C. Clark to J. J. Wearring and claimed to be secured in payment by the vendor’s lien on lands situated near the town of Pauls Valley, Okl.; appellant claiming to have purchased same from the payee therein. Appellees sought to rescind said conveyance to appellant on the ground: (1) That the last three notes above described were fictitious and fraudulent, since J. J. Wearring never had owned the land upon which they purported to be a lien; (2) because appellant falsely and fraudulently represented said notes to be secured in payment by a valid and subsisting vendor’s lien on said land, which representations were wholly untrue and fraudulent; (3) because appellant falsely and fraudulently represented that the land securing payment of said notes was situated within two miles of Pauls Valley, while in truth it was distant 14 miles from said town and poor security for said notes, whereas had it been- situated as represented it would have been ample security for said debt; (4) because appellant falsely represented that said lands were free of all incumbrance other than the debt transferred, to appellees, while in truth there was a prior mortgage upon said lands for approximately $1,400 for the foreclosure of which a suit was then pending in Oklahoma courts; (5) and that all of said representations were material and relied upon by appellees and deceived them and induced them to make said conveyance. Appellees also alleged that the parties could be placed in statu quo and accordingly prayed for a rescission of the conveyance, tendering into court the notes received by them. Appellant answered by the general denial. There was a trial without jury and judgment for appellees as prayed. No conclusions of law and fact were filed, and the case is here on the pleadings and a statement of facts.

The only assignment of error contained in appellant’s brief is that the evidence did not warrant a rescission of the sale of the land to appellant for the reason that the evidence upon which the judgment was based was the testimony of one Stroud, who was the agent of both parties in the transaction, and his declarations and representations were inadmissible to bind appellant, and to the admission and consideration of which appellant objected and saved his bill of exceptions. An inspection of the evidence shows that Stroud was the agent of both parties and did make the representations concerning the notes and the title and location of the land alleged in the petition, which we have set out above, and that ap-pellees relied thereon and was thereby induced to make the trade, and that Brand made the said representations to Stroud, who repeated them to appellees.

The fact, however, that Stroud wa,s agent for both appellant and appellees in making the exchange of properties does not, in this case at least, present great difficulties. Most courts, it is true, hold that agents cannot recover commissions or fees for services in effecting sales or exchange of lands or for performing other like services when acting for both parties. Such a dual capacity is held to be opposed to public policy for the reason that it places the agent under the influence of a direct inducement to violate the confidence reposed in him by another. Also such agents in law are held to do that which is for the best interests of his employer, and that he cannot do when he represents two persons whose interests are essentially adverse. Ramspeck v. Pattillo, 104 Ga. 772, 30 S. E. 962, 42 L. R. A. 197, 69 Am. St. Rep. 197; 31 Cyc. 1572. But in the instant case the rule is invoked, not against an agent who has acted adversely toward the interests of his employer, but for the purpose of preventing the agent from testifying to representations made to ’ him by his principal concerning the property he had authorized the agent to offer in exchange for the lands of appellee. We, think the rule is in no sense applicable. It is not shown that Stroud acted adversely to either appellant or appellee or falsely represented the facts, since he did not pretend to know them. On the contrary, he but repeated statements made to him by appellant which were relied upon by appellee, and which were false at the time appellant made them, and, being false and misleading, we are unable to see that such statements are any less admissible in evidence because Stroud was the agent of both parties, since he not only acted within the apparent scope of his authority as agent for both, but in repeating the false statements made to him by appellant concerning the notes and the title to the land he seems to have been all but literal. Had' he misrepresented what appellant said to him, it might present another question. Appellant did not deny- the statements of Stroud, and, having misrepresented to Stroud the status of the property he sought to have him sell, the law infers he acted fraudulently, and, for the purpose of securing an advantage and as a consequence, his declarations are admissible in evidence.

Aside from the question of law raised by the dual relation of Stroud, the record, in our opinion, furnishes sufficient evidence to sustain the verdict without taking into consideration the statements of the agent, since it shows that before the trade was completed, and while appellant and appellee and Stroud were at the farm of appellees in Ellis county, the agent told appellant what he had represented to appellee and at the same time asked appellant if it was true that the land he was trading appellees was two or three miles from Pauls Valley, if it was good land, and if the three $500 notes was all the indebtedness against it, and to which questions appellant said, “That was right.” Appellee, who was present, also testified, in substance, to the same conversation. Appellant did not testify upon trial of the case. Further, the abstract of title to the land which appellant represented secured payment of the notes and which is made a part of the statement of facts by agreement of counsel shows that, at the time the notes were transferred to Odom, there was a trust deed upon record against said land given to secure payment of notes aggregating $1,200, as well as a second trust deed securing payment of note for $126, and the supplement thereto, made and prepared subsequent to the trade, shows that the lien securing said notes was foreclosed in June, 1910. Nor is that all. The abstract of title shows that J. J. Wear ring, who appellant represented had owned the land and sold same to dark, taking from him the three notes traded to appellee, never at any time had title to the land. If appellant possessed any information about his title to the land and the in-cumbrances thereon, he knew that he was wholly without title at all, and knew the representations made to appellee were false. If he knew nothing at all about the title, his representations were equally false. The statements made by appellant to appellee were in effect representations that would constitute good title to the land securing payment of the notes. Buchanan v. Burnett, 102 Tex. 492, 119 S. W. 1141, 132 Am. St. Rep. 900. Nor would the fact that appellant believed he had a good title change the situation if appellee believed the representations to be true and relied on same. Buchanan v. Burnett, supra, and cases cited. The fact that the abstract of title was delivered to appellee is also unimportant for the reason that as far as it goes it correctly portrays the title, while the false representations were in relation to matters not shown by the abstract, though we think, as stated, the real issue is whether appellee relied upon the false representations of appellant and would not have made the purchase but for same. The evidence sustains such a conclusion.

The judgment is affirmed.


author: HALL, J.

text:
    PECOS & N. T. RY. CO. v. MAXWELL.
    (Court of Civil Appeals of Texas. Amarillo.
    April 19, 1913.)
    1. Carriers (§ 105) — Carriage op Goods— Special Oontraci^-Damages.
    A carrier, informed by a shipper on November 8th that tents were intended to be used during severe weather as a stable for the protection of his horses, etc., had sufficient notice to render it liable for the expenses and damages which might result by reason of its failure to deliver them within a reasonable time.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 451-458; D'ec. Dig. § 105.]
    2. Carriers (§ 106) — Carriage oe Goods— Breach op Special Contract — Question por Jury.
    Where a carrier had notice that tents were shipped to be used as stable tents for the pro-teetion of horses, etc., during severe weather, the question whether the damages claimed to have resulted from failure to deliver in a reasonable time were the proximate result of such failure, or were within the contemplation of the parties at the time of making the contract, was for the jury.
    [Ed. Note — For other cases, see Carriers, Cent. Dig. §§ 448-450; Dec. Dig. § 106.]
    3. Evidence (§ 536) — Opinion Evidence-Expense OE FEEDING HOBSES.
    Where plaintiff stated that he was able from his experience to tell how much more feed was required to take care of horses during severe weather without the protection of stable tents, and stated the facts upon which such opinion was based, his opinion on that question was admissible.
    [Ed. Note.' — Eor other cases, see Evidence, Cent. Dig. §§ 2343, 2344, 2347; D’ec. Dig. § 536.]
    4. Appeal and Ebbob (§ 173) — Defenses— Failure to Raise in Tbial Court.
    Where a carrier, sued for breach of a special contract for the carriage of goods, did not in the trial court raise the issue of the validity of the 90-day clause in its shipping contract, such defense, if any, was waived.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1079-1089, 1091-1093, 1095-1098, 1101-1120; Dec. Dig. § 173.]
    Appeal from Potter County Court; W. M. Jeter, Judge.
    Action by W. A. Maxwell against the Pecos & Northern Texas Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Madden, Trulove & Kimbrough, of Amarillo, and Terry, Cavin Mills, of Galveston, for appellant. Cooper, Merrill & Lumpkin, of Amarillo, for appellee.

      For other cases 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

   HALL, J.

This is a suit for damages instituted in the county court of Potter county by appellee against appellant. Appellee’s allegations are to the effect that during the month of November he was engaged in construction work on the line of appellant company at a point south of Lubbock, and that in the prosecution of his work it was necessary for him to use, and he did use, a large number of horses and mules; that on or about November 8, 1909, he shipped from Amarillo to Lubbock two bundles of tents for the purpose of being used as a stable for his horses and mules while he was engaged in said construction work; that said tents were shipped for the purpose of protecting his teams, and, if they had been delivered to him within a reasonable time, he could have and would have used the same as a stable for the protection of his horses and mules, and, had he been able to use said tents for said purpose, his horses and mules would have been protected from cold and inclement weather, and that it would not have been necessary for him to use as much feed in caring for said horses and mules as was necessary where said horses and mules were kept without the protection of a stable; that it was impossible for appellee to obtain shelter, protection, or a stable for his teams while engaged in said work without said tents; that one bundle of said tents was delivered to appellee within a reasonable time, but it was of no use to him without the other bundle, which contained the corresponding part of said stable tents, thus making one bundle useless without the other; that the second bundle was not received and delivered within a reasonable time, but was unreasonably delayed by appellant company and was not received by appellee until about the 7th day of February, 1910; that if both bundles had been delivered to him he would and could have used the same for the protection of his teams during all of the time between November 20, 1909, and February 7, 1910; that, by reason of the failure of the appellant to so deliver the same within a reasonable time, appellee’s horses and mules were compelled to stand outside, without protection from the cold and inclement weather during said period of time between November 20, 1909, and February 7, 1910, and that by reason thereof they suffered from exposure to the weather and required a larger amount of feed for their maintenance than would have been required had they the benefit and protection of said stable; that, by reason of the delay in delivering said tents, appellee was compelled to buy, and did buy, feed for said horses in the sum of $321 more than he would have been compelled to purchase for said teams during said time had they been protected by said tents; that said facts were so known by a notice given to the agent of the appellant company receiving said shipment at the time the same was received; that it was well known to the appellant company, its agents and employés, at the time said tents were tendered to it for shipment that the appellee expected to use them for the purpose hereinbefore stated; and that the failure to deliver said tents within a reasonable time resulted in appel-lee’s damages, as herein alleged. He prayed that, in the event he should not be entitled to such damages, then that he have judgment for the reasonable value of the use of said tents during said period, which he alleged to have been the sum of $321.

Appellant insists, under the first assignment of error, that, in order for appellee to recover special damages for delay in the shipment, the evidence must show that at the time the contract of shipment was made the carrier had notice of the special conditions rendering such damages the natural and probable result of the delay, and that the contract of shipment was made with reference to such conditions. The evidence, upon the question of notice, tending to support the claim for special damages is in part as follows: Appellee testified: “My two bundles of tents were down in the warehouse there. They had come to me from Kansas City. I had them repaired there. I saw them there when I spoke to the man who had the bill to my shipment. I got my wheelers loaded and had room for the tent and went -to the agent and told him I wanted this tent shipped with the wheelers, and he said, ‘They are right here in the warehouse. Have you got your expense bill?’ And I said, ‘No, I haven’t.’ I cannot give you his name, but he is the party 1 was shipping through. He was working for the Santa Eé, the defendant in this suit. He said, T can’t let it go without the expense bill.’ I said, T am sorry; X am needing the tent there now. It is getting cold and our stock are needing shelter.’ But he would not let it go.” It is shown by other evidence that appellant’s agent knew the tent belonged to appellee and the purpose he had in shipping'it. The question raised by appellant under this assignment is one for the jury. As said in G. H. & S. A. Ry. Co. v. Stovall, 3 Willson, Civ. Cas. Ct. App. § 254: “In this case it was a question of fact for the jury to determine whether the stampede and loss of. the 15 head of cattle was the natural, direct, and proximate result of the breach of contract of carriage, or reasonably within the contemplation of the contracting parties when making the contract. This was a. question of evidence, not of pleading, and, as claimed in the petition, said item of damages may or may not be recoverable, dependent upon the finding of the jury as to whether the same was the natural, direct, and proximate result of the breach of the contract, or was within the contemplation of the parties at the time of making the contract.” Appellants excepted to the sufficiency of the allegations as to feed, but no error is assigned upon the action of the trial court in overruling the exceptions. The evidence having shown that appellant’s agent knew the tent was to be used by appellee during the severe weather existing between November 20, 1909, and February 7,1910, in our judgment, the carrier had notice sufficient to render it liable for the expense and damages which might result by reason of the failure to deliver the tent within a reasonable time. What is here said also disposes of the second assignment of error.

Appellee was permitted to testify in his own behalf that, based upon his experience in that line of work, it took one-fifth more feed to keep the horses in working condition without the tent than with it, and that in dollars and cents he estimated his damages at $350, as near as he could figure it. He stated he had several years’ experience in handling teams and six years in grading work. He stated he was able, from his experience, to tell how much more feed, or approximately how much more, was required to take care of the teams during the time when it would have been required if he had had the tent. He stated the facts upon which his opinion was based, and we think the court did not err in admitting the testimony.

Since the submission of the case, appellant has filed additional authorities, bearing upon the question of the validity of the 90-day clause in the shipping contract. The shipping contract was not introduced in evidence, and no paragraph thereof was pleaded by appellant. The only special defense set up by appellant was that of contributory negligence. We are cited to the case of M., K. & T. Ry. Co. v. Harriman, 227 U. S. 657, 33 Sup. Ct. 397, 57 L. Ed. -, and other late cases by the Supreme Court, bearing upon that question. The issue not having been raised in the trial .court, the defense was waived, if indeed it existed.

Finding no reversible error, the judgment is affirmed.


author: HUFF, C. J.

text:
    SNYDER ICE, LIGHT & POWER CO. v. BOWRON et al.
    (Court of Civil Appeals of Texas. Amarillo.
    April 19, 1913.)
    1. Trial (§ 252) — Instructions — Conformity to Evidence.
    In a telephone lineman’s action against an electric light company for injuries caused by contact with a defectively insulated' electric light wire, where there- was no evidence that the lineman had been warned of the danger or the condition, an instruction that if he had previously been warned not to come in contact with electric light wires, and was negligent in so doing, he could not recover, was properly refused.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. § 252.]
    2. Trial (§ 251) — Actions for Injuries— Instructions — Cure by Other Instructions.
    In a telephone lineman’s action against an electric light company for injuries from a defectively insulated electric light wire, defendant, by its answer, brought in the telephone company and alleged .that the condition of its wire was due to a telephone cable which sagged and came in contact with its wire, but did not allege that such contact was contributory negligence on the part of plaintiff. The court charged ,that if plaintiff, by any knowledge of the proximity of the electric light wire to the telephone cable, failed to use that care which an ordinarily prudent person would have exercised, and if such failure contributed to cause his contact with the uninsulated wire, to find for defendant, notwithstanding its negligence; that if he knew the danger to which he might be exposed in ascending the pole, and if in so doing he did not act as an ordinarily prudent person would have done, and was thereby guilty of negligence, he could not recover, and to consider all the circumstances in evidence tending to throw light on his acts. A requested instruction that if he caused the cable to come in contact with the electric wire, and if he had knowledge of the danger of such contact, or had been warned not to come in contact with electric wires, and was negligent in so doing, he could not recover, was refused. There was no evidence that he had been warned of the danger or conditions. Held, that the instruction submitted an issue not pleaded or proven, and was properly denied.
    [Ed. Note. — For other eases, see Trial, Cent. Dig. §§ 587-595; Dec. Dig. § 251.]

      3. Appeal and Error (§ 742) — Burden oe Showing Error.
    In an action for injuries due to an electric shock causing a lineman to fall, an assignment that the court erred in admitting a physician’s testimony as to the permanent effects of an electric shock, because he was not qualified, would be overruled, where the hill did not show any testimony by him as to any permanent effects, and the statement under the assignment showed that, in his opinion, plaintiff’s only permanent injury was to his arm, broken from the fall.
    ' [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    4. Witnesses (§ 282%) — Examination — Repetition of Question.
    An assignment of error complaining of the exclusion of a question asked a witness on cross-examination as to whether he had not been frequently drunk, which the bill stated he would have answered affirmatively, would be overruled, where the qualification of the bill showed that he had previously repeatedly denied that he got drunk frequently; it being unlikely that he would have answered the question as claimed.
    [Ed. Note. — Eor other cases, see Witnesses, Cent. Dig. §§ 928, 990-992; Dec. Dig. § 282y2.J
    5. Trial (§ 260) — Instructions — Cure by Other Instructions.
    The refusal of instructions containing correct principles of law, which were sufficiently presented by the general charge, was not error.
    [Ed. Note. — For other cases, see Trial, Cent. Dig-. §§ 651-659; Dec. Dig. § 260.]
    6. Negligence (§ 89) — Imputed Negligence —Employer and Employé.
    A telephone lineman, injured by contact with a defectively insulated electric light wire, is not chargeable with the telephone company’s knowledge of such condition or its negligence in causing it.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 130-137; Dec. Dig. § 89.]
    7. Electricity (§ 16) — Injuries — Concurrent Negligence — Liability.
    The failure of a telephone company to furnish its lineman a reasonably safe place in which to work did not relieve from liability an electric light company whose wrongful or negligent acts concurred with those of the telephone company to render such place unsafe.
    [Ed. Note. — For other cases, se.e Electricity, Cent. Dig. § 9; Dec.. Dig. § 16.]
    8. Appeal and Error (§ 1040) — Harmless ERROr — Sustaining Exception to Answer.
    In a telephone lineman’s action against an electric light company for injuries caused by contact with a defectively insulated electric light wire, the sustaining of an exception to a paragraph of the answer bringing in the telephone company and alleging that the condition of the wire was due to its negligence did not prejudice the electric light company, so far as its liability or nonliability to plaintiff was concerned, where the ease was fully developed on the question of whether the telephone company’s negligence was the sole cause of the injury.
    [Ed. Note. — For other cases, see Appeal and Error, Gent. Dig. §§ 4089 — 4105; Dec. Dig. § 1040.]
    9. Indemnity (§ 13) — Recovery Over Against Wrongdoer — Pleading.
    In a telephone lineman’s action against an electric light company for injuries caused by contact with a defectively insulated electric light wire, a paragraph of the answer, alleging that the condition of the wire was due to the negligence of the telephone company in permitting a telephone cable to sag and come in contact with defendant’s wire, but not alleging whether defendant’s wires were placed before or after the cable was placed, or before or after its sagging condition, and not showing that defendant had no knowledge of the condition of its wire before the injury, did not show any right to recover over against the telephone company ; and hence an exception thereto was properly sustained, since at most it merely showed a case of concurrent negligence.
    [Ed. Note. — For other cases, see Indemnity, Cent. Dig. §§ 29-35; Dec. Dig. § 13.]
    10. Electricity (§ 16) — Liability for Injuries — Insulation of Wires.
    It was the duty of an electric light company, of which it could not divest itself, to have its wires insulated at a place where persons whose duties called them in proximity thereto would be exposed to injury.
    [Ed. Note. — For other cases, see Electricity, Cent. Dig. § 9; Dec. Dig. § 16.}
    11. Damages (§ 62) — Duty of Injured Person to Reduce Damage.
    Where there was no question but that an injured person’s arm was given proper treatment at the time of the injury, ordinary care on his part to reduce the consequences of defendant’s negligent act did not require him to have his arm 'broken over, in order to take out the stiffness by breaking up the cartilaginous mass around the joint; and hence evidence that this could be done was properly excluded.
    [Ed. Note. — For other cases; see Damages, Gent. Dig. §§ 119-131; Dee. Dig. § 62.]
    Appeal from District Court, Scurry County; Jno. B. Thomas, Judge.
    Action by Monte Bowron against the Snyder Ice, Light & Power Company. From a judgment in favor of plaintiff and the cross-defendant Scurry County Telephone Company, the original defendant appeals.
    Affirmed.
    Higgins, Hamilton & Taylor and Arthur Yonge, all of Snyder, for appellant. Reall & Beall, of Sweetwater, Fritz R. Smith and Perkins & Perkins, all of Snyder, and M. J. Thornton, of Gail, for appellees.

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

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

   HUFF, C. J.

The appellee Monte Bowron sued appellant, the Snyder Ice, Light & Power Company, in the district court of Scurry county for damages which it is alleged he sustained while in the employment •of the appellee Scurry County Telephone Company, as lineman, and while in the discharge of his duties as lineman in repairing one of the telephone company’s wires at the southeast corner of the public square, in the town of Snyder, known as the Ficas corner. It is alleged: After the telephone company constructed its system of telephone in the town the appellant put in its electric light plant, and that it negligently placed its light poles and wires in such close proximity to the poles and wires of the telephone company at the Ficas corner that appellee and other employes would necessarily come in close proximity thereto in ascending and descending said phone poles, and in adjusting, repairing, and fixing the phone wires; and in fact said electric wires and cables of appellant at such place were so constructed that one of its high-power wires, carrying about 2,300 volts, passed north and south immediately on the west side of said phone pole, and a like wire or cable 18 or 20 inches east thereof; that appellant, on the date of the injury, had put in a day current. “That on or about the 28th day of May, 1911, plaintiff, while engaged in the discharge of his duties, and in the performance of the same, having been called by his employer to adjust and repair one of its phone wires having a connection at said Picas corner, ascended said telephone pole at said corner, and while engaged in tracing a dead wire at said place in order to put the same in operation, and not knowing that defendant’s high-volted wire on the east of said telephone pole at the point where plaintiff received his injury was uninsulated or defectively insulated, but believing same to be safe and in proper condition, as it was the duty of defendant to so keep it, came in contact with said wire at said uninsulated place thereon and was severely shocked and burned by a current of electricity received therefrom, rendering plaintiff helpless and senseless, and causing him to fall to the ground below with great violence, a distance of about 20 or 25 feet. Plaintiff avers that said wire from which he received said stroke was carrying at the time about 2,300 volts of electricity, which could not be seen by plaintiff, and which, through the negligence of defendant, was not indicated by defendant in any respect, as it was its duty to do, and which it was proper to do, and plaintiff had no way or means of ascertaining or knowing at said time that same was charged with electricity.”

He further alleged that “defendant, at the time plaintiff was injured, and for several weeks prior thereto, knew of the improper construction of its said light system at said Picas corner, and of the uninsulated condition of the said electric wire or cable at the said Picas corner, and knew, or by the use of ordinary care could or would have known, of the dangerous condition of the' same, and was negligent in permitting said wire to become and remain uninsulated and In such close proximity to said telephone system at said Picas corner, knowing as it did, and was bound to know, that plaintiff and other employés of said telephone company would necessarily have to approach near to and in close proximity thereto in the discharge of their duties, and might get killed or seriously injured by the electricity carried on said wire.” He further alleges the injuries received by his fall occasioned by the negligence of appellant, as above set out.

Appellant answered by general denial, that the appellee knew the condition of the wires and assumed risk, contributory negligence, in that he acted in an absent-minded, unthoughtful, and careless manner, and in so acting caused a circuit of electricity with members of his body by grounding an electric current in a careless manner, and did not act with care, etc.; and, further, that ap-pellee knew the close proximity of his company’s wire and posts to that of appellant’s, and that it was practically uninsulated on the top of one wire, or should have known of the same by the exercise of ordinary care and diligence, and therefore guilty of contributory negligence.

The appellant, in paragraph 7 of its answer, brought in the Scurry County Telephone Company, charging it with negligence, and asking to recover over against it. This paragraph will be set out more in detail hereafter.

By the first assignment appellant urges that the court erred in refusing to give specially requested instruction No. 2. It is asserted that the court failed in the main charge to submit the defense of appellant, and therefore the special charge should have been given. This requested instruction is, in substance, that if appellee Bowron caused the cable to come in contact with the electric light wire, and that he had knowledge of the danger of such contact, or had previously been warned not to come in contact with a light wire, and if he was negligent in so doing, he could not recover. It is not specifically alleged that the causing of the cable to come in contact with the electric wire was an act of contributory negligence on the part of Bowron. This particular situation as to a certain bow in the cable, which is alleged as the cause of the uninsulated condition of the wire, is alleged as an act of negligence against the telephone company. The court, in his main charge, instructed that if the jury found “that the plaintiff, either in going upon the telephone pole at the time he did go, or by reason of his knowledge of the proximity to the wire of the light company to the telephone cable or wire, if he had such knowledge, or in the position in which he placed himself while on said pole, or in anything that he did, or omitted to do, he failed to use that degree of care which an ordinarily prudent person would have exercised under the circumstances,” etc. If such failure of care caused or contributed to cause him to come in contact with an uninsulated wire of appellant, by reason of which he fell, to find for appellant, “notwithstanding that you may find that the defendant was also guilty of negligence which directly or proximately contributed to cause the injury to plaintiff, if any.” And in connection with the above charge the court also told the jury that if Bowron, in ascending, knew of the danger to which he would or might be exposed, although it was one of his duties, by reason of his employment, to ascend the pole, and if, ascending tlie pole with such knowledge, he did not act as an ordinarily prudent person under such circumstances would have done, and that such act contributed to his injury, and if he ascended the pole with such knowledge of the situation and surroundings as he had, if any, he failed to exercise ordinary care for his safety and was thereby guilty of negligence, which caused or contributed to cause his injury, “then if you find plaintiff was guilty of negligence in any of these particulars, plaintiff could not recover though you might believe the electric wire was uninsulated as alleged, and that the defendant was negligent in not having said wire properly protected.” The court further instructed the jury, in determining whether or not “the plaintiff was himself guilty of negligence in ascending said’ pole, or his action while on said pole, you will consider all the facts and circumstances in evidence which tend to throw light upon these questions.” Appellant cites us to no evidence in the record showing that Bowron was warned of the danger or conditions. In the absence of such evidence, it would have been error for the court to have submitted such an issue to the jury. The court submitted the question whether or not appellee knew of the danger from the situation and condition of the wires and cable. We think he submitted the issues as pleaded in a clear and succinct form, and the jury could not have failed to understand the issues so submitted. We do not believe the charge requested would have added anything to the charge of the court, but would rather have had a tendency to confuse them. The charge given was applicable to the facts alleged and proven. The requested charge submitted facts not proven and some facts not alleged, as contributory negligence, but contained only appellant’s alleged cause against the telephone company.

The second assignment presents the court’s ruling upon appellant’s “motion to exclude the testimony of Dr. Scarborough as to the permanent or probably permanent effects of an electric shock received by the plaintiff, for the reason Dr. Scarborough testified he had no experience in treating shocks from currents of electricity.” Appellant, in its bill, does not set out the testimony of the doctor, in which he testified to any “permanent or probably permanent effects of an electric shock.” It does not show what he testified on that point. Appellant does not point out to us where the doctor testified to any permanent or probably permanent effects. The statement under this assignment is, in part, “I will say that I think that the cause of the nervous condition of his system after the injury was because both of his fall and this electrical shock.” But his further testimony indicates that in the opinion of the doctor Bowron had recovered from that condition, and the only permanent injury was to his arm, which was broken from the fall.

The third assignment presents the action of the court in refusing to permit Bow-ron to answer the following question, “Have you not been frequently drunk?” Upon objection, the court sustained the objection, and it is stated in the bill, if witness had been permitted to answer, he would have said: . “Yes, sir.” The trial judge qualified the bill by stating the record fully shows, the testimony of the witness as to his habit of drinking. Upon examination of the record we find that the witness testified: “It is not a fact that I often engage in the excessive use of intoxicating liquors, and I had not done so prior to the time of this injury, nor have I subsequent thereto. No, sir; it is not a fact that I have been drunk frequently.” There is at least a page and a half of the record devoted to the examination of this witness with reference to his drinking. It is not at all likely that he would have answered the question as stated in the bill, when he had repeatedly denied that he got drunk frequently. We do not understand the court as certifying that he would have so testified, but he refers us to the record for his evidence on that point. This assignment is overruled.

The fourth, fifth, and sixth assignments complain of the action of the court in refusing special charges 4, 5, and 7. In so far as the charges requested contain correct principles of law applicable to the facts of this case, we think the general charge sufficiently presented them. The requested instructions in many particulars do not present the law applicable to the case and some of the propositions presented in them we regard as not being the law. These assignments are overruled. We do not think any useful purpose will be subserved by setting out the charges and discussing them. We regard the court’s charge as an admirable presentation of the law applicable to this case, and as fairly and fully presenting to the jury the questions in the ease for their solution.

Appellant’s seventh assignment of error is to the action of the court in sustaining the third special exception of appellee Bowron, addressed to the sixth paragraph of the appellant’s answer. The special exception is as follows: “Plaintiff further specially excepts to the sixth section of said answer and that part thereof seeking to charge this plaintiff that such notice as the telephone company and its agents may have had as to the uninsulated condition of the defendant light company’s wire at and prior to the time plaintiff received his injuries, thereby seeking to charge the plaintiff with such negligence as said telephone company and its other agents may have been guilty of in the construction, operation, and maintenance of its telephone wires and cables up to and prior to the time plaintiff was injured.” The exception appears to go to that part of the sixth paragraph of the answer which alleges, among other things: “Said telephone company, through its agents, did have or claimed to have knowledge of such defective insulation in the wire of the defendant light company prior to plaintiff’s injury. * * * ' But the said telephone company and the plaintiff and its agents are guilty of negligence in the construction, operation, and maintenance of its lines of wire, cable, etc., if there is any such negligence.” As we understand the exception, it only goes to the knowledge and negligence of the telephone company and its agents with reference to the defective insulation and the construction, etc., of the wires and cables of the telephone company. The court did not, as we gather, strike out all of paragraph 6, but only that part excepted to, and let stand that part charging knowledge and negligence on the part of Bowron, as a reply to his cause of action. We do not think the knowledge of the telephone company and its agents and their negligence should be charged to Bowron and defeat him in his recovery. The telephone company "owed Bowron the duty to furnish him a reasonably safe place in which to work, and if it failed to do so, and with knowledge of the condition rendering it unsafe negligently placed him at work thereon, such act would not defeat the appellee’s suit against appellant, if it was a joint tort-feasor, whose wrongful or negligent acts concurred with those of his employer; but he would have a right of action against one or both. The negligence of the one will not defeat his recovery against the other, unless the jury found no concurring negligence on the part of appellant proximately causing the injury. The trial court substantially submitted to the jury in the main charge the law above stated.

The eighth and ninth assignments complain of the action of the court in sustaining the exceptions of appellee Bowron and that of appellee Scurry County Telephone Company to the seventh paragraph of appellant’s answer, bringing the telephone company into the ease and asking a judgment for contribution over against it. This paragraph, claiming contribution, alleges that prior to the injury of Bowron “the telephone company had erected a system of telephone poles, wires, and cables in and upon the streets and other places in the city of Snyder, and that one of its principal and main poles was placed on the street corner known as the Eicas corner, near the southeast corner of the public square, upon which pole .was fastened many of the phone wires of said system, and a large cable, VA inches in diameter, of lead or soft metal, in which were numerous small telephone wires, all of which made said cable heavy; that said cable was suspended from a messenger wire, drawn taut by small insulated wires tied onto each; that at the near end of the said posts, on the east side thereof, the cable was sagged in a bow below its level, and below the messenger wire that held said cable up, some 12 or 18 inches, instead of being tied up to within about 3 inches of said messenger wire that held the cable up at other points, and would have held it up to its proper position at this point, except for the negligence of the telephone company in permitting said cable to sag, as aforesaid; that the posts which held the defendant light company’s wire were necessarily placed near the posts of the telephone company at the said Eicas corner, and one wire of the light company was on the east side of said posts and one on the west side thereof, and that said wires were placed by the defendant upon a long crossarm and out of reach of an ordinary person engaged in repairing or 'working' upon the wires of the telephone company; but that if the plaintiff was injured, as alleged by him, it was not by reason of any negligence on the part of the light company, but was caused by the negligence of said telephone company permitting its said cable, which was suspended directly over and at right angles with the wire of the light company on the east side of the light posts and phone posts, to sag, and in not tying up said cable to its support, but in permitting same to sag as aforesaid until, if there was any exposed place on the light company’s wires, as alleged by plaintiff, it was directly caused by the friction of the said cable on the top of said light' wires insulation and the wearing or burning off of a small portion of said insulation on the top of the light company’s wire at a point of contact between the phone cable and light wire; and the telephone company and its agent, the plaintiff herein, knew of such faulty construction on the part of said telephone company, and knew of the danger incident thereto, if any, and if there was an exposure of the light company’s wire, aforesaid, said telephone company and the plaintiff had notice thereof and full knowledge of the attendant danger of same, if any.” It is further alleged the shock to Bowron was conveyed to him through the cable of the telephone company by coming in contact with the wire at the point where the insulation had been rubbed off of the light company’s wire by the cable, as above alleged, and that while the cable was charged with electricity, Bowron’s wet clothing came in contact with the cable, and he closed the electric circuit by touching some ground wire with some part of his body. It is alleged that Bowron had knowledge and skill in electricalt power plants, telephones, etc., and that he and the telephone company knew of the condition of the wire at the time of the injury, and that if any one was directly liable to Bowron it was the telephone company, and the proximate cause of the injury was due to the negligence of the telephone company.

The court sustained the exceptions to this paragraph of the answer and ordered the telephone company to be. dismissed. We do not understand by dismissing the telephone company that that part of the answer, in so far as Bowron is concerned, was stricken o.ut. The facts introduced in evidence appear to have fully gone into the relation and condition of the wires at the time of the injury and with reference to the situation of the cable, and the high-voltage wire. It is shown there were abrasions in the insulation of about one-fourth of an inch in the high-voltage wire of appellant at the post, from which Bowron fell. There was a burn on his shoulders and two or three on his back. The evidence further shows the cable of the telephone company bows or sags down near to where this break was in the insulation. The testimony further indicates ■ that such had been its condition for some time previous to the injury of Bowron, and that the manager of the phone company knew of it. The jury had evidence from which they could have found that the cable broke the insulation. The testimony in some particulars negatives the fact that the cable, at the time of the injury, was forced in contact with a high-voltage wire, and that such contact was the cause of the current passing through appellee. We think, however, .the evidence is ample to show that appellant was negligent in the particulars charged in the petition, and from the facts so proven the jury were warranted in finding a verdict for Bowron.

It was the duty of appellant to have its wires insulated where persons whose duties called them in proximity thereto would be exposed. That is such a duty as the appellant could not divest itself of. San Antonio Gas & Electric Co. v. Badders, 46 Tex. Civ. App. 559, 103 S. W. 229; Standard Light & Power Co. v. Muncey, 33 Tex. Civ. App. 416, 76 S. W. 931; Citizens’ Telegraph Co. v. Thomas, 45 Tex. Civ. App. 20, 99 S. W. 879. The court instructed ■ the jury, if ¡Bowron was injured through the negligence of the telephone company, without negligence on the part of appellant proximately causing the injury and concurring with the negligence of the telephone company, to find for appellant. If there was error in dismissing the telephone company, it did not prevent the appellant from showing, if it could, that the telephone company’s negligence was the sole cause of the injury, and that it was not therefore liable. The record indicates the ease was fully developed on that point, and that no injury resulted to appellant, in so far as the establishment of its liability or nonliability to Bowron is concerned for the injury received by him. The serious question presented under the plea bringing into the case the telephone company is: Did it, under the allegations, show a right of contribution against the telephone company? The question,- in so far as this court is concerned, is a difficult one. Was the sagging of the telephone cable or the bow therein, making an abrasion in the insulation, the primary or active negligence rendering the telephone company liable to appellant? The answer or cross-petition alleges the erection of the telephone posts and the wires and cables thereon, ¿nd that appellant’s posts which held its wires were necessarily placed near the posts of the telephone company. Was this wire and post placed near to the sagging cable before or after the cable was placed, and before or after its sagging condition? If after, then appellant must have reasonably anticipated that the' abrasion would probably occur. It was its duty to insulate its wire, and it was required to use ordinary care to see that its wires, when put in use, were properly insulated and maintained in that condition. This duty was nonassignable, and the fact that the cable was constructed so that it broke the insulation was, or might be, á concurrent act of negligence. We think the cross-petition should have alleged and shown that appellant was not negligent in placing its wires where it was probable they would be rendered dangerous. If, when the wires were placed, the cable was in the condition it was when the injury was done, then the appellant was negligent in so placing 'them, and could not recover over against the telephone company for an act which • its negligence caused. The petition, by its construction, indicates that the telephone posts, wires, and cable, when appellant placed its wires ■ and posts near them, were then constructed, and in the position they were when the damage was done the insulation. There is nothing alleged or shown that appellant did not know of the condition before the injury to' Bowron. We believe the allegations should show that it was not guilty of negligence in permitting the wire to remain uninsulated. If the condition of the cable and wire were known to the telephone company, it certainly should have been known to appellant, whose duty it was to maintain its wire in a safe condition. It should not be allowed to say the cable inflicted the damage to the 'wire; therefore the obligation the law imposed could be and should be shifted to the telephone company. Leaving the cable in the condition it was may or may not have been an act of negligence on the part of the telephone company. If it was in that con-' dition before the wire was placed there, we do not think negligence is shown of the telephone company. If it got in that position after, or was placed there after, it might have been negligence, but we think only concurrent. The active negligence in this case was leaving in an exposed place an uninsulated wire. It may have been the telephone company was guilty in permitting its cable to break the insulation on the wire. It is equally clear that appellant was guilty in permitting the wire to remain uninsulated. Both these acts may have been the proximate cause of the injury. The court should not, in order to shift the burden from one to the other, compare their conduct and ascertain which of the two was the least guilty. We do not think the appellant alleges a case authorizing contribution from the telephone company. Railway Co. v. Vance, 41 S. W. 167; San Marcos Electric Light & Power Co. v. Compton, 48 Tex. Civ. App. 586, 107 S. W. 1151; Standard Light & Power Co. v. Muncey, 33 Tex. Civ. App. 416, 76 S. W. 931; Atlanta Consolidated Street Railway Co. v. Southern Bell Telephone & Telegraph Co. (C. C.) 107 Fed. 874.

The eleventh assignment complains at the court’s action in refusing to permit Hr. Johnson to answer the following question: “Now, regarding the arm, doctor, from your examination of his arm, and from your knowledge of surgery and your experience of 14 years as a physician, is it not probable that the motion could be restored by a proper treatment of setting the arm at this- time?” The bill of exceptions shows that the witness would have answered “that by a proper treatment of the arm of the defendant — that is, by breaking up the cartilaginous masses around the joint, without injury to the muscles, bones, or nerves — would take out the stiffness and cause growths to be taken up by the blood, and thereby restore the mobility of the joint in a much greater degree than it has now, if not entirely cure it. In many instances permanent cures are effected, and I, as a physician and surgeon, would adopt that course in this particular case, if permitted by Monte Bowron.” Dr. Johnson was present ■ when the arm of Bowron was set, and he testified that “the injuries were treated as any other surgeon would have done.” Dr. Scarborough testified that “the knuckles from the humerus, which is the only bone of the upper arm, to the forearm knuckles, that forms the joint where the fracture, and also the bone that comes in here to make the joint from the lower side, the ulna; it is a fact that the elbow was crushed in there, and those bones that form the elbow joint were crushed. * * * It is a fact that we could not have set the arm in any other manner than that in which we did set it, and bring the bones to anything like their natural position. The condition that that arm was in at that time, we set it in the only way that it could be set. * * * We can feel that the bones of the elbow were all crushed in that joint.” The evidence shows that Bowron had three surgeons with him at the time of his injury, and there is no question made as to the treatment’given at the time being the proper one. Appellee exercised ordinary care in securing the treatment of his arm. We do not believe the law requires him to go further and have his arm broken over. The “cartilaginous mass,” “without injury te the muscles, bones, or nerves,” would have-to be broken, in order to take “out the stiffness.” We think such requirement on the part of appellee, in order to relieve the appellant from the consequences of its negligent act, is requiring considerably more than ordinary care. 13 Cyc. 77, and note 62; Railway Co. v. Doyle, 25 S. W. 461; Railway Co. v. Young, 60 Tex. 202. There was no-error in refusing the testimony.

The twelfth assignment is overruled. We do not think the letters excluded by the court admissible upon the issues between the appellant and Bowron.

We find no such error in the record as requires a reversal of the case, and it is therefore affirmed.


author: HARPER, C. J.

text:
    McWILLIAMS v. FT. STOCKTON IRRIGATED LANDS CO.
    (Court of Civil Appeals of Texas. El Paso.
    April 24, 1913.)
    Appeal and Ebbob (§ 655) — Review—Sufficient Statement op Facts — Rulings on Evidence — Instructions.
    Where the statement of facts was stricken for failure to comply with Supreme Court rules 72 and 78, assignments of error relating to the admission of evidence and the court’s charge cannot be reviewed.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2823-2825; Dec. Dig. § 655.]
    Appeal from Pecos County Court; Jno. M. Odom, Judge.
    Action by J. F. McWilliams against the Ft. Stockton Irrigated Lands Company. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    R. D. Blaydes, of Ft. Stockton, for appellant. O. W. Williams and W. C. Jackson, both of Ft. Stockton, for appellee.

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

   HARPER, C. J.

J. F. McWilliams, real estate agent, brought this suit for commissions for furnishing purchaser for certain tracts of land belonging to the defendant, Ft. Stockton Irrigated Lands Company.

On February 5, 1913, the statement of facts filed was stricken from the files, because not in compliance with rules 72 to 78 prescribed by the Supreme Court, for the reasons given in Albers v. Roberts, 150 S. W. 596.

The errors assigned in the appellant’s brief will not be considered, because they all relate to the charge of the court or to the admissibility of evidence, and they cannot be considered in the absence of statement of facts. Mayo v. Goldman, 44 Tex. Civ. App. 80, 97 S. W. 1061; Boyette v. Glass, 140 S. W. 819.

There being no fundamental error apparent upon the face of the record, the cause must be ¿farmed; and it is so ordered.

McKENZIE, j., not sitting.