text:
    DANIELS v. STATE.
    (No. 4637.)
    (Court of Criminal Appeals of Texas.
    Oct. 24, 1917.)
    1. Witnesses <§=>337(5) — Impeachment — Scope.
    Where accused takes the stand, he may be cross-examined as to his conviction of other offenses, for the purpose of impeaching his credibility as a witness.
    2. Witnesses <§=>357 — Examination—Leading Questions.
    A witness testifying in impeachment of another may be asked the precise question put to the witness sought to be impeached in laying a foundation, and the question is not objectionable because leading.
    Appeal from District Court, Harrison County; P. O. Beard, Judge.
    Matthew Daniels was convicted of theft, and he appeals.
    Affirmed.
    Lane & Lane, of Marshall, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted of cow theft, and the lowest punishment assessed against him. The evidence was amply sufficient to sustain the verdict, and the court gave a correct charge, submitting every issue raised.

There are but two questions raised. One is his complaint that for the purpose of im-penciling Ms veracity the state was permitted to ask Mm, and he reqMred to answer, that on April 10, 1912, he had been convicted in the district court of said county of forgery under the name of Prank Charles and served a term in the penitentiary. It has always been held that such evidence of impeachment was admissible in this state. 1 Branch’s Ann. P. C. § 167, where a large number of cases are collated.

The other hill shows that he objected to certain leading questions propounded by the state to its witness Jemison. The bill is wholly insufficient to show that the court erred in permitting the leading questions under Carter v. State, 59 Tex. Cr. R. 75, 127 S. W. 215, and other cases cited in 1 Branch’s Ann. P. C. § 159. But in this case the court qualifies his bill by showing that these leading questions were permitted to be asked the witness Jemison and Ms answers given because his testimony was in direct impeachment of appellant when he denied making to Jemi-son the statements which Jemison said he did make to him; and the court in his charge limited the testimony of said Jemison in answer to said questions for impeachment purposes only. Hie ruling of the court was based upon the rule of law which is well established and accurately stated in 40 Cyc. 2751:

“The usual and most exact method of examining an impeaching witness is to ask the precise question put to the witness sought to be impeached in laying a foundation, and such question is not objectionable because of its leading character.”

To the same effect is 5 Jdnes on Evidence, P. 211. It is unnecessary to cite other authorities.

The judgment is affirmed.
      <S=íFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: MORROW, J.

license: Public Domain

text:
    YOUNG v. STATE.
    (No. 4643.)
    (Court of Criminal Appeals of Texas.
    Oct. 24, 1917.)
    Intoxicating Liquors <&wkey;236(8) — Illegal Sales — Statutes.
    Under Pen. Code 1911, art. 597, proof of one sale of intoxicating liquor will warrant conviction ; but in a prosecution under article 589, prohibiting the business of making sales, three sales within two hours to the same person, unaccompanied by other proof, is insufficient, as there must be evidence, circumstantial or otherwise, which would authorize the jury to conclude, not only that the accused had on two separate occasions made sales, but was engaged in the business.
    Appeal from District Court, Grayson County ; M. H. Garnett, Judge.
    Bud Young was convicted of crime, and he appeals.
    Reversed.
    B. F. Gafford, of Sherman, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

The conviction was under a prosecution for violation of article 589 of the Penal Code, making it unlawful to engage in or pursue the occupation or business of selling intoxicating liquors where its sale has been prohibited by law. The indictment, following the' provisions of article 591 of the Penal Code, charged that, pursuant to the conduct of the alleged unlawful business, two sales had. been made by appellant; one on December 25, 1916, to Joe Hardwick, and one on January 26, 1917, to John Wyre. Wyre testified to the purchase of three bottles of whisky from appellant on January 26, 1917, declaring that there were three separate transactions, occurring in a period of about two hours, at each of which transactions he purchased from appellant a bottle of whisky. Hardwick testified that on December 25, 1916, he purchased a bottle of wMsky from a negro, who gave Ms name as Bud Young. He declared, however, that the negro from whom he made the purchase was not the defendant. There was an absence of evidence showing the pursuit of the business, other than that detailed above.

Article 597 of the Penal Code makes it an offense to sell intoxicating liquors in prohibited territory. Article 589 makes it an offense to pursue the business of making such sales. These statutes condemn and define separate and distinct offenses. Fitch v. State, 58 Tex. Cr. R. 366, 127 S. W. 1040; Gearheart v. State, 197 S. W. 187. Under article 597, proof of one isolated sale of intoxicating liquor in prohibited territory will sustain a conviction. Under article 589 there must be allegation and proof of at least two sales of intoxicating liquor to the parties to whom the indictment charges the sales to .have been made, and in addition to such proof there must be evidence, circumstantial or otherwise, which would in conjunction with the two sales, authorize the jury to conclude, not only that the accused had, on two separate occasions, made sales of intoxicating liquor, but that he was engaged in the business or occupation of making sales of intoxicating liquor in prohibited territory. Mizell v. State, 59 Tex. Cr. R. 227, 128 S. W. 125; Rhodes v. State, 75 Tex. Cr. R. 659, 172 S. W. 253; Chapa v. State, 60 Tex. Cr. R. 365, 132 S. W. 127; Whitehead v. State, 66 Tex. Cr. R. 482, 147 S. W. 583. The extent of the proof to authorize a finding that appellant was engaged in the business or occupation mentioned is not defined by law.- It need not be his principal business or occupation. Creech v. State, 70 Tex. Cr. R. 229, 158 S. W. 277. But two or three isolated sales will not alone be sufficient to establish the fact. Whitehead v. State, supra; Brice v. State, 179 S. W. 1178; Thomas v. State, 66 Tex. Cr. R. 374, 147 S. W. 262; Floyd v. State, 66 Tex. Cr. R. 407, 147 S. W. 264; Oliver v. State, 68 Tex. Cr. R. 414, 152 S. W. 1066.

The distinction between the twoi offenses and the evidence requisite to support a conviction in the respective instances has been often defined in the decisions of this court. Branch’s Ann. P. C. p. 680, and cases cited. Reference is again made to them, for the reason that the distinction is often not respected in the cases that are appealed to this court. A reversal often becomes necessary where the evidence is sufficient to support conviction under article 597, prohibiting the sale of intoxicating liquor in prohibited territory, but not sufficient to show the pursuit of the business under article 589, supra, and where prosecution is under the latter section. The instant ease is an illustration. There is evidence of three isolated sales, but not accompanied by other facts which, aided by the proof of the isolated sales, would authorize a finding against the appellant under the charge of pursuing the business of selling intoxicating liquors.

For this reason a reversal must be ordered.
      «SmsFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DAYIDSON, P. J.

text:
    MARTIN v. STATE.
    (No. 4480.)
    (Court of Criminal Appeals of Texas.
    Oct. 17, 1917.
    On Motion for Rehearing, Nov. 14, 1917.)
    1. Criminal Law <&wkey;1124(4) — Appeal — Scope — Record.
    Where the bill of exceptions showed that testimony was heard by the court in passing on a motion for new trial for misconduct of the jury, but the record did not set out such testimony, the denial of new trial will not be reviewed.
    2. CRIMINAL Law <&wkey;1144(18) — Appeal — Scope — Record.
    In the absence of the testimony heard by the court before denying new trial for misconduct of the jury, the presumption is that the court ruled correctly.
    On Motion for Rehearing.
    3. Criminal Law <&wkey;1092(9) — Appeal—Bill op Exceptions — Time to File.
    Where accused was given 30 days to file his bill, and the time was extended 30 days, and, after the 60 days expired, he was given 5 days to file a bill of exceptions, his bill then filed was too late; continuity of time being broken.
    Appeal from District Court, Gonzales County ; M. Kennon, Judge.
    Dock Martin was convicted of manslaughter, and he appeals. Affirmed. On motion for rehearing.
    Motion overruled.
    W. M. Atkinson, and W. H. Blanton, both of Gonzales, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAYIDSON, P. J.

The appellant was convicted of manslaughter and given a. term of three years’ confinement in the penitentiary.

There were several bills of exception reserved; but, on account of the fact they were filed too late to be considered, the matters expressed in them will not be reviewed. Tlie amended motion for new trial sets up misconduct of the jury, in this, that during their retirement they discussed the fact that appellant had previously served a term in the penitentiary. This is supported by the affidavits of two jurors. These affidavits are rather meager, and it as not stated in either of them that such testimony was not introduced before the jury. If it be conceded that such evidence was not .before the jury, then the question is whether or not this is so presented that it requires revision. One of the bills,, if it could be considered, recites that the motion was heard by the court and evidence introduced in support of it, but was by the court overruled. The judgment of the court also recites that evidence was heard. It would seem then from this bill that evidence was introduced. The record does not contain the evidence which was introduced. If heard by the court, in regard to the misconduct of the jury, the action of the court overruling the motion would not be revised unless the evidence was in some way brought ■ in the record. In the absence of the testimony, the presumption is that the court correctly ruled.

in the light of the record as it is presented, we are of opinion the judgment should' be affirmed, and it is, accordingly, so ordered.

On Motion for Rehearing.

Recently the judgment herein was affirmed without consideration of the bills of exception. The motion for rehearing insists the court was in error, and that the bills of exception were properly filed. In view of this insistence, we have gone over this matter again. To state the matter definitely, the court adjourned on 29th day of January, 1917. The court granted a 30-day order. Before the expiration of the 30 days, to wit, on February 19th, appellant secured an order extending the time for 30 days in which to file his bills of exception. Giving full benefit from the adjournment of the court until the expiration of the second 30 days would bring it up to the latter part of March; that is, 60 days from the 29th of January. The bills of exception were not filed within this time. On the 19th of April, after the expiration of the second order extending the time, appellant secured a ■ 5-day order from the district judge in which to file his bills of exception. This came too late. See Armstrong v. State, 60 Tex. Cr. R. 59, 130 S. W. 1011, and Presley v. State, 60 Tex. Cr. R. 102, 131 S. W. 332. Other cases could be cited in support of 'this proposition.

In order to have extended the time so as to take advantage of it in filing the bills of exception, the continuity should not have;-been broken. The order had expired in the latter part of March authorizing the filing of the bills of exception, but [they were not filed. There was nothing then done until the 19th of April, showing an interregnum of about three weeks, when the order granting the five days •¡in which to file the bills of exception was made. Under all the authorities, this matter came too late and cannot be considered.

The motion for rehearing is overruled.
      <S&wkey;Eor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RASBURY, J.

text:
    SOUTHERN TRACTION CO. v. OWENS.
    (No. 7755.)
    (Court of Civil Appeals of Texas. Dallas.
    June 23, 1917.
    Rehearing Denied Oct. 17, 1917.)
    1. Railroads <&wkey;301 — Injuries at Crossing —Duty or Road and User of Crossing.
    It was the duty of an interurban railroad’s servants in approaching a crossing, where the view of those using it was somewhat obstructed, to exercise ordinary care in the operation of the car, and it was likewise the duty of one driving a wagon over the crossing to exercise ordinary care in so doing.
    2. Railroads <&wkey;346(l, 5) — Injuries at Crossing — Exercise of Ordinary Care-Presumption.
    In absence of testimony, the law presumes that both an interurban railroad and one driving a wagon over its crossing were exercising ordinary care.
    3. Railroads <&wkey;346(l, 5) — Injuries at Crossing — Negligence and Contributory Negligence — Burden of Proof.
    In an action for injuries at an interurban railroad’s crossing, it was plaintiff’s duty to introduce such testimony as would establish prima facie that the road’s servants were not exercising ordinary care in the operation of its car at the time of the collision, and it was the road’s duty, to rebut such prima facie case, to prove that the driver of the wagon in which plaintiff was injured was not in the exercise of ordinary care, or was guilty of contributory negligence.
    4. Railroads <&wkey;350(l, 13) — Injuries at Crossing — Negligence and Contributory Negligence — Questions of Fact.
    Whether an interurban railroad and one injured on its crossing exercised ordinary care is a question of fact for the jury, save where there is, under the facts deducible from the evidence, no room for ordinary minds to differ.
    5. Railroads <&wkey;35fi(13) — Injuries at Crossing — Contributory Neglige&ce — Question for Jury.
    In an action against an interurban railroad for injuries in collision with its car on its crossing, evidence held not to show as a matter of law that the driver of the wagon in which plaintiff rode was negligent, constituting the sole cause of the collision.
    6. Railroads &wkey;>350(7) — Injuries at Crossing — Warning Whistle — Question for Jury.
    Whether defendant’s motorman blew a warning whistle as his car approached the crossing held for the jury.
    7. Railroads <&wkey;350(11) — Injuries at Crossing — Negligent Speed of Car — Question for Jury.
    The question whether defendant was negligent in propelling its car toward the crossing at a speed of 40 miles an hour or more held for the jury.
    8. Negligence <&wkey;93(l) — Imputed Negligence-Driver and Passenger.
    Where it does not appear that a passenger in a wagon was in any respect responsible for the acts of the driver of the wagon, the driver’s negligence in going upon an interurban railroad’s crossing cannot be imputed to his passenger, unless it'Was the sole cause of injury.
    9. Railroads <&wkey;352 — Action for Crossing Accident — Answer to Special Issue — Propriety.
    The answer of the jury to a special issue, inquiring whether those in charge of the ear failed to sound the whistle as it approached the crossing, that they failed to sound it at the proper time was proper and responsive.
    10. Damages <&wkey;168(2) — Injuries at Crossing — Evidence—Condition after Injury.
    It was proper for plaintiff to show his inability to use his leg after the crossing accident, and the showing was not necessarily objectionable because it appeared on the witness’ voir dire examination that plaintiff had been subjected to another accident after the crossing accident, the witness testifying that he could not swear that plaintiff would or would not have limped but for the second accident.
    11. Appeal and Error <&wkey;1050(l) — Harmless Error — Admission of Evidence.
    Error in the admission of such testimony was harmless to the railroad, the answer of the witness disclosing that plaintiff limped after the second accident.
    12. Damages &wkey;100 — Measure of — Personal Injuries to Minor — Impairment of Earning Power.
    An injured party’s minority has nothing to do with the amount to be awarded as damages in his action for injuries, except that damages for loss or impairment of capacity to labor and earn money is confined to time following his majority.
    13. Damages <&wkey;95 — Measure of — Personal Injuries.
    A minor or adult suing for personal injuries is entitled to recover such a sum as would, in the jury’s opinion, compensate him in the items sued for if paid in cash at the time of the trial.
    14. Damages <&wkey;216(l) — Personal Injury —Instruction.
    In an action for injuries on crossing, against an interurban railroad, after advising the jury of the elements of damage accruing to plaintiff which they might consider, and correctly limiting any loss or impairment of his capacity to labor to that sustained after majority, it was proper to ask the jury to say what amount of money, if paid then in cash, would compensate plaintiff for any injury he might have sustained as the result of the accident, and not objectionable as not permitting the jury to award plaintiff a sum, paid presently, less than he would be entitled to when 21.
    15. Damages <&wkey;210(l) — Trial <©==337 — Instruction-Elements of Damage.
    It is the trial court’s duty to furnish the jury the elements of damage which may be considered by them, and if correct elements are defined, the jury are restricted thereto.
    16. Damages <&wkey;95 — Personal Injuries — Elements of Damage.
    The elements of damage recoverable by plaintiff from the interurban railroad which injured him at its crossing were physical and mental pain suffered, or which might be suffered, and any loss or impairment in capacity to labor and earn money.
    17. Trial <&wkey;420 — Submission on Special Issues — General Charge.
    The case being submitted to the jury on special issues, defendant was not entitled to the general charge.
    18. Trial <&wkey;191(8), 253(4)— Instruction — Assumption of Facts — Elimination of Issues.
    In an action against an interurban railroad for injuries at its crossing, the road’s requested charge, on the issue of discovered peril, which assumed material facts in dispute by the evidence, and would have eliminated every issue save that of discovered peril, was properly refused.
    Appeal from District Court, Hill County; Horton B. Porter, Judge.
    Action by Buford Owens, minor, against the Southern Traction Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    J. J. Averitte, of Houston, and Wear & Frazier, of Hillsboro, for appellant. Shurt-leff & Cummings and Walter Collins, all of Hillsboro, and Chas. B. Black, of Austin, for appellee.
   RASBURY, J.

Appellee, Buford Owens, by next friend, George Mahurin, sued appellant for damages for personal injuries received by appellee as the result of a collision between one of appellant’s interurban cars and a wagon drawn by two mules in which appellee was a passenger at a point in Hill county whore appellant’s railway crosses the public wagon road. The negligence alleged as the proximate cause of the injury was the failure of the agents and servants of appellant to sound the whistle or give other warning of its approach, and the speed at which the car was operated in the light of the conditions surrounding the crossing where the collision occurred. Appellant pleaded contributory negligence, denied the extent of appellee’s injuries, and alleged that at the time of the collision its car was being competently operated and was running with care and caution. There was trial before jury, to whom the facts were submitted upon special issues and upon the answers to which issues judgment was entered by the court in favor of appellee for $3,570, from which this appeal is prosecuted.

The evidence adduced by appellee on trial tended to establish these facts: Appellee, whose home was in Arlington, was visiting his uncle, J. A. Dillon, of Hillsboro. On the day of the collision Dillon and his son and appellee were returning in a covered wagon to Hillsboro from Milford, whence they had gone for the purpose of marketing watermelons. The covering of the wagon consisted of a cloth or sheet drawn over the usual wagon bows. The front of the covering was open. On the sides between the first three bows the covering was drawn up by cords so as to furnish ventilation. About 4:30 o’clock of the afternoon the party reached the point of the collision, linown as “Simmons Stop,” where appellant’s line of railway crosses the public road. Due to the elevation of the land or appellant’s dump the tracks at said crossing are approximately 8 feet higher than the road on which Dillon was traveling, and are reached by incline commencing about 60 feet back from the tracks. The railway at said point runs approximately north and south, and at the time Dillon approached the tracks he was going west. His view south from whence the car came which struck his wagon was obscured by appellant’s trolley poles, by weeds growing upon the dump and right of way, and by a barn 360 feet from the crossing, and which is about 50 or 75 feet away from and east of the railway track. Dillon drove his mules in a walk up the incline to within 30 feet of the railway tracks, at which point he rose from his seat and looked both ways for approaching cars and called to his son and appellee, who were on the floor of the wagon, to do so, which they did, and no car was in sight. About this time his mules started into a trot due to seeing Dillon’s whip in his hand, and at which time presumably his attention was given to his team. When the front wheels of Dillon’s wagon %were over the rail nearest him he and his son and appellee nearly simultaneously saw an approaching car near Snearley’s (being the residence to which the bam referred to was connected, the residence to the west and the barn to the east of the tracks), about 400 feet away. Dillon began whipping his mules when he saw the car, but did not avoid the collision. The car struck the hub of the rear wheel of the wagon. As a result ap-pellee was seriously injured. The car approached the crossing at approximately a speed of 40 miles an hour, and failed to blow its whistle or sound its gong.

While the finding of the jury is to be regarded from the standpoint of the facts deducible from appellee’s testimony, it is proper to say that appellant’s testimony tended to show, as reflected by the testimony of the employé operating the car at the time of the collision, that the whistle was blown, first, about 1,000 feet from the crossing, being the regular whistling point indicated by signal post, and, second, at a point about 600 feet from the crossing, at which point the operator first saw the wagon, and, third, when about 400 feet from the crossing, at which time the operator cut off the current and put on the emergency brakes. The operator also stated at another point that he first saw Dillon when the car was opposite the barn. When he first saw the team about 600 feet away it was about 30 feet from the track, approaching slowly. When he was about 400 feet away the team apparently halted about 10 feet from the crossing and started up again, which was the first indication the operator had that Dillon was going to attempt to cross in front of the car, and at that time the operator could not have halted his ear in time to hare avoided the collision. Further, it may be said that appellant’s testimony would have supported a finding that after passing the barn there was no obstruction of Dillon’s vision from that point to the crossing.

The foregoing constitute generally the facts fairly deciludble from the evidence favorable to the respective parties. There are many circumstances and collateral facts shown in the record, favorable and unfavorable to the verdict, which we have not stated for the reason that, weighed pro and con, they neither add to nor detract from the sum of the facts fairly testified to by the witnesses on both sides.

The first assignment of error complains of the refusal of the trial court to peremptorily instruct verdict for appellant. The contention made under authority of said assignment is that the evidence shows without dispute that appellant was not guilty of any negligence proximately causing appellee’s injuries, but does show that the negligence of J. A. Dillon’ was the sole proximate cause thereof, which is but to say that the verdict of the jury is without support in the evidence.

Under the facts recited in the ipstant ease it was the duty of appellant’s servants in approaching the crossing to exercise ordinary care in the operation of the car which collided with Dillon and his team. It was likewise the duty of Dillon to exercise ordinary care in driving across the tracks of appellant’s railway. The law presumes, in the absence of any testimony, that both were exercising that degree of care. Thus it results that it was the duty of appellee to introduce such testimony as would establish prima facie that appellant’s servants were not exercising ordinary care in the operation of its car at the time of the collision and the duty of appellant, in order to rebut such prima facie cause, when made, to prove that Dillon was not in the exercise of ordinary care, or was guilty of contributory negligence at the time of the collision. Whether the respective parties exercised ordinary care is a question of fact for the determination of the jury, save in cases where there is, under the facts deducible from the evidence, no room for ordinary minds to differ, in which cases, of course, the right to verdict arises as matter of law in favor of one or the other of the parties. Lee v. Railway Co., 89 Tex. 583, 36 S. W. 63. There are numerous other cases before and after the one cited announcing the rules stated. We select the case cited merely because it announces both rules, arid because both rules are involved in the instant suit. The inquiry then is, What was the conduct of the respective parties at the time of the collision? The testimony of Dillon and appellee is that, when within 30 feet of the tracks, at the suggestion of the former, both, conscious of their duty in such cases, looked for approaching case, Dillon by rising from his seat and leaning forward, the mules being in a walk, and appellee by crawling on his hands and knees to about the center of the wagon and looking from that point. Neither saw a car. Prior and up to this period neither had heard a whistle or gong or other sound indicating the approach of the car. At the time Dillon looked one or both of the mules saw his whip and accelerated their speed, and when the front wheels of the wagon were just over the nearest rail, both Dillon, his son, and appellee saw a car approaching, Dillon placing it at about 400 feet distant and appellee about 300 feet. The car struck the hub of the rear wheel nearest the car. Tending to support the claim of Dillon and appellee was the testimony of the witness Ivey, who was in a cornfield on the same side of the railway from which Dillon approached the crossing. This witness says, in effect, that he had the same view of the track that Dillon had, and that when he first saw the car come from behind the barn, or a distance from the crossing of about 300 feet, the mules were in a walk, and, if not upon the tracks, but a few feet therefrom.

Do the facts as generally outlined above disclose that Dillon was guilty of such acts of negligence as constituted the sole cause of the collision? We think not. Dillon was rightfully upon a public thoroughfare, and had a corresponding right to cross the railway track in his journey, and, after looking for approaching cars and seeing none and hearing no whistle, gong, or other sound of approaching cars, had the right to assume the way was safe. Certainly such facts were sufficient to carry to the jury the fact issue of the exercise of ordinary care, since it cannot be fairly said in the light of such testimony that there was no room for ordinary minds to differ as to the conclusions to be drawn from it. To be sure if there was “some inherent reason in the testimony for setting it aside as untrue,” or if “some other conclusively established fact” demonstrated the falsity of the testimony relied on by appellee, it would present a ease without the rule. Railway Co. v. Fuller, 13 Tex. Civ. App. 151, 36 S. W. 319. No such condition is made to appear, nor does it arise upon the facts proven.

Then does the evidence fail to support the finding against appellant, as urged by counsel? The first inquiry in that connection being the alleged failure to warn Dillon of the approach of the car. As relates to any warning by whistle, gong, or otherwise, Dillon, appellee, and the witness Ivey all testified they heard no such warning, and the conclusion to be reached from their testimony is that they could have heard it had it been given. Two witnesses for appellant, passengers on the car, say if any signal was given, they did not notice it. On the contrary, appellant’s servants, the motorman and the conductor, state without qualification that the whistle was blown at the signal post 1,000 feet from the crossing, and again at a distance of about 600 and 400 feet therefrom. The evidence, it seems to us, presents nothing less than a conflict. That it affords sufficient basis for the finding of the jury it seems to us is beyond controversy. We do not think the case is similar to Railway Co. v. Kutac, 76 Tex. 473, 13 S. W. 327. From the report of that ease it would seem that the court decided, in view of the fact that all who witnessed a crossing accident testified they heard the whistle blown, save plaintiff and his driver, who testified they did not hear it, a submission of the issue was not authorized by the evidence. While the opinion does not disclose all the proof adduced on that issue in the Kutae Case, the rule prevailing then in reference to issues raised by the evidence was not different from what it is now, and it must be assumed that the testimony was so overwhelmingly opposed to or preponderatingly against the negative statement of ICutac and his driver as to strip the same of any probative, force. Something of the kind necessarily was disclosed by the record. Further, it may be said in the present ease that all the witnesses, save the motorman and the conductor, in effect, testified that the whistle did not blow. While in the nature of things the latter would apparently be in a better position to recall the circumstance, because it was their duty to perform the act, at the same time duties are often neglected, and the neglect as often observed by others. At least we think the testimony was sufficient to raise the issue and require its presentation to the jury, and that the relation of appellant’s witnesses to the act presents at most an issue of the weight to be attached to the respective statements of the witnesses.

But it is argued that, even if the warning was not given, it does not appear that that fact in any manner contributed to the injury. To this suggestion we cannot assent, since it appears to us to be unsound. The place chosen for sounding such warnings are at such points as will doubtless be heard by those approaching the crossing, and that one hearing it would heed the warning we thfrk obvious. Just where Dillon was when the whistle was blown is difficult to approximate, but that he was near enough to have heard it if it had been blown is a reasonable deduction to be drawn from the location of the signal post and the speed of the car and the probable nearness of Dillon.

We come next to the contention that the evidence will not support the finding of the jury that the speed at which the ear approached the crossing was, under surrounding conditions, negligence. Only one witness estimates the speed of the car under 40 miles an hour. One places it at.50 miles. A speed of 40 miles per hour, reduced to feet and seconds, viftll show a speed of 58% feet a second. The distance from the barn to the crossing, while variously estimated, seems conceded to be actually 360 •feet. It is reasonably certain that Dillon’s view of the car was obstructed until the car passed or reached the barn. No witness testified exactly to that fact, but the inference is clear, particularly from the evidence of Ivey, who says the view was unobstructed for a hundred yards, which would be 60 feet north of the barn. The operator of the ear testified when he first saw Dillon approaching the crossing the car was approximately 600 feet away, but at another place he testifies that when he first saw Dillon he was “up about the barn,” so that any inconsistency lies rather in estimating the distance from a point approximately opposite the barn than in the conclusion that the view of the track fe in fact obstructed beyond the barn. Dillon testified that weeds upon the right of way and the trolley poles fprther obstructed his view, and the witness Snearley testified that weeds were growing upon the right of way, some knee-high, some waist-high, and some higher, and that they were cut after the accident. Other witnesses dispute such claim, among them Ivey, and inferentially the appellee. Propelling a car at a speed of 40 miles an hour might not, in some cases, constitute a failure to exercise ordinary care. In some cases it might. In the instant case the trial court concluded that under all the facts the issue of negligence in that respect was raised, and we are unable to say that his action was error. If appellant’s servants failed to blow the whistle or sound the gong at the signal post, and if the barn obstructed the view of a person at the crossing, and such view was further obstructed by weeds and trolley poles, the exercise of ordinary care would have suggested a less speed, when it is considered that the car would have covered the distance from the barn to the crossing in approximately six seconds. The facts we have stated were before the jury, and if they believed them, they were sufficient to support a finding that the speed was negligent. Further, it may be conceded that the view from the barn to the crossing was unobstructed and yet it appears, if no warning was given, it would have been impossible to cheek the car at the speed it was going after the operator of the car saw Dillon to have avoided the collision, which fact should have suggested a lessened speed. For the reasons stated we conclude we are without authority to hold that the court erred in submitting as a question of fact the excessive speed of the car.

The issues discussed in the foregoing pages are repeated by challenging each step in the proceeding, in the second, third, fourth, fifth, sixth, eighth, ninth, twelfth, and thirteenth assignments, for which reason it will not be necessary to discuss those assignments seriatim.

We have not discussed the question of contributory negligence on the part of Dillon. While the jury declared in their findings that he was guilty of contributory negligence, but that such negligence was not the proximate cause of the collision, a discussion of the correctness of either finding is imma-teriaJ, since the contributory negligence of Dillon could only become a controlling issue between him and appellant, for the reason Dillon’s negligence cannot be imputed to ap-pellee, it failing to appear from the evidence that appellee was in any respect responsible for the acts of Dillon. Railway Co. v. Gibson, 83 S. W. 862.

By the seventh assignment it is urged that the answers of the jury to special issue No. 3 is improper and unresponsive and cannot form the basis of the court’s judgment. Special issue ■ No. 3 inquired of the jury whether those in charge of the car failed to sound the whistle as it approached the crossing, the answer being that they “failed to sound it at the proper time.” We believe the answer to be an intelligent one and consistent with the jury’s theory of the facts, for the reason that there was evidence, practically without dispute, that the whistle was sounded when the car was nearly upon Dillon. There also was testimony that the whistle was blown at the signal post and testimony that it was not. In answer to the specific question whether the whistle was blown at the signal post, the jury replied it was not, hut in answer to the question whether it was blown at all, they said it was not blown at the proper time. It occurs to us that, in answering the general query complained of, it was the purpose of the jury to make such answer consistent with the facts and the finding that the whistle was not blown at the signal post and that it was both proper and responsive.

By the tenth and eleventh assignments of error it is asserted that the finding of the jury that Dillon was guilty of negligence in driving upon the crossing when he did and the further finding that such negligence was not the proximate cause of appellee’s injury is without support in the evidence. We conclude the assignments present no reversible error. If it can be said that the evidence will support the finding of the jury that Dillon was negligent in approaching the crossing, it can with equal consistency also be said that appellant’s servants were negligent in the operation of its car, leaving open the issue as to whose negligence, as between them, proximately caused the collision, but leaving that issue as to appellee without controlling force because Dillon’s negligence may not, as stated be imputed to appellee, unless it wasi the sole cause of the injury.

The fourteenth assignment challenges the action of the court in admitting certain testimony of George Mahurin, stepfather to appellee, who, while testifying, was asked by counsel for appellee in substance whether appellee since the crossing accident had been able to walk without limping. At request of counsel for appellant the jury was retired, and on voir dire the witness stated that appellee, after he had recovered from his injury sufficiently to walk without crutches and was attending school, had another accident, by which the same leg was broken, and that he could not swear that he would or would not have limped but for the second accident. Thereupon counsel for appellant objected to the question, which was improper in not limiting the inquiry to injuries received in the first accident. The objection was overruled, and the witness answered “he has limped after the second accident.” In our opinion it was proper and material for ap-pellee to show his in&bility to use his leg after the crossing accident. It was with reference to» that accident that the inquiry was made, as appears from the question, and it was not necessarily objectionable because it appeared on voir dire examination that ap-pellee had been subjected to another accident. Counsel for appellant evidently knew that there had been a subsequent accident, and it may have been that any limping at the time was ascribable to the latter accident, but we do not think appellant was entitled, for that reason, to frame the question by objections so as to disclose a fact that appellee did not deem proper to raise at that juncture. Further, if the voir dire examination was the first knowledge of the subsequent accident on the part of appellant, that examination in fact disclosed it, and afforded appellant the opportunity to take the matter up where appellee left it. Finally, the proceeding was harmless, since the answer of the witness disclosed that appellee limped after the second accident, which it seems could not have been of controlling force with the jury on that issue.

The twenty-first and twenty-second assignments of error challenge the court’s charge on the measure of damages and the manner of submitting the issue. By special issue No. 6, the court inquired of the jury in substance what amount of money, if paid then in cash, would compensate appel-lee for any injury received by him at the time of the accident as the direct and proximate result thereof. In connection with such inquiry the court instructed the jury, in substance, that in estimating appellee’s damages, if any, they should consider the following elements only: Physical or mental pain suffered by appellee, or which he might suffer in the future as the direct and proximate result of the injury received at the time of the aécident, and any loss or impairment of his capacity to labor and.earn money after arjpving at 21 years of age, as the direct and proximate result of any injury received at the time of said accident. The charge contained other formal parts, including the requirement that the jury find that appellee had been actually injured. The first criticism of the charge is, in effect, that it does not permit the jury to award appellee a sum, paid pow, less than he would be entitled to when 21 years of age. We do not understand that the injured party’s minority has anything to do with the amount to be awarded as damages, save that any damages for loss or impairment of capacity to labor and earn money is confined to the time following his majority. Another rule, of course, obtains in suits by parents for loss to them in eases of injury to their children. Such party, whether minor or adult, is entitled to recover such a sum as would, in the opinion ■of the jury, compensate him in the items sued for if paid in cash at the time of the trial.

After advising the jury of the ele-' ments of damage accruing to appellee, which they might consider, and correctly limiting any for loss or impairment of capacity to labor, etc., as appears from the special issue, the court asked the jury to say what amount of money, if paid then in cash, would compensate appellee for any injury he may have sustained as the result of said accident, etc. The charge is, in our opinion, correct and not subject to the criticism directed against it. It is also argued that the charge is upon the weight of the evidence, because the elements of damages submitted for consideration provides the jury the viewpoint only of the court and precludes independent conclusions by the jury. It is the duty of the court to furnish the jury the elements of damage which may be considered by them, and if correct elements are defined, the jury are restricted thereto. The elements submitted by the court to the jury are correct, since they are physical and mental pain suffered or which may be suffered, and any loss or impairment of appellee’s capacity to labor and earn money.

The twenty-sixth assignment of error complains of the refusal of the court to allow a general charge on the issue of discovered peril. The case being submitted to the jury on special issues, appellant was in no event entitled to a general charge. Further, the charge was incorrect in the assumption of material facts clearly in dispute by the evidence, and, had it been correct, would have eliminated every issue save that of discovered peril. For the reasons indicated, the charge was correctly refused. -

The fifteenth, sixteenth, seventeenth, eighteenth, nineteenth, twentieth, twenty-fourth, twenty-fifth, twenty-seventh, twenty-eighth, twenty-ninth, thirtieth, and thirty-first assignments will be overruled. The issues raised by such assignments are either disposed of by our conclusions in reference to other issues or raise issues which fail to disclose reversible error and a discussion of which would be of no value.

Finding no reversible error in the. record, the judgment is affirmed.
      <i&wkey;For other oases see same topic anü KEY-NUMBEK in all Key-Numbered Digests and Indexes


author: MOURSUND, J.

text:
    ROCKHILL COUNTRY CLUB CO. v. NIX et al.
    (No. 5888.)
    (Court of Civil Appeals of Texas. San Antonio.
    Oct. 10, 1917.
    On Motion for Rehearing, Nov. 14, 1917.)
    1. Appeal and Error <&wkey;499(4) — Sufficiency of Evidence — Cbjections Not Shown by Record — Peremptory Instbuction.
    The record failing to disclose objection to the giving of the peremptory instruction or that charges requested by defendant were tendered at the proper time and refusal thereof excepted to, defendant is in no position to complain of the verdict and judgment, and, as all assignments relate to the sufficiency of the evidence to support the verdict and judgment, they must be overruled.
    2. Appeal and Error <&wkey;1061(4) — Fundamental Error — Peremptory Instructions.
    The giving or refusal of a peremptory instruction does not raise a question of fundamental error.
    3. Vendor and Purchaser <&wkey;266(8) — Vendor’s Lien — Waiver.
    Plaintiff conveyed certain land to W., retaining a vendor’s lien. Certain of the notes for the purchase price not being paid, plaintiff sued to recover on tho notes and to foreclose the vendor’s lien. Before the termination of the suit a charter for defendant corporation was filed, and on the same day W. conveyed the land to K. as trustee for the corporation. Later K. and W. conveyed to the corporation, subject to the vendor’s lien. A settlement of the ponding suit was made between plaintiff W. and the corporation and the suit dismissed. By the terms of the settlement the corporation was to execute deeds conveying the land in controversy to plaintiff, which deeds were to be deposited in escrow to be delivered to plaintiff on the failure of the corporation or W. to pay before a certain date. On failure to make payment, the deeds wore delivered to plaintiff and duly recorded. The corporation and W. refusing to deliver possession of the land, plaintiff brought trespass to try title. Held, that plaintiff had not lost his rights as holder of the superior title and was entitled to tho land, there being no testimony that the corporation or W. had ever tendered the amount due or that the corporation was able to pay it.
    4. Vendor and Purchaser i&wkey;265(l) — Subsequent Purchaser — Notice of Rights of Vendor.
    The company, having purchased the purchaser’s equity in the land, was chargeable with notice of the vendor’s title and rights.
    On Motion for Rehearing.
    5. Appeal and Error <&wkey;212 — “Charge” — Waiver.
    A peremptory instruction is a “charge” within the meaning of the statute (Rev. St. art. 1971, as amended by Acts 33d Leg. c. 59, § 3), requiring objections to be made before the charge goes to the jury, and a failure to object thereto constitutes a waiver of error.
    [E'd. Nottt — For other definitions, see Words and Phrases, First and Second Series, Charge.]
    6. Appeal and Error &wkey;>724(l) — Review — Fundamental Error.
    If the doctrine of fundamental error can he invoked to avoid the requirements of the statute, an assignment which requires a study of the statement of facts does not present a question of fundamental error.
    7. Vendor and Purchaser <®=270— Lien-Enforcement — Recovery of Land.
    In trespass to try title, plaintiff vendor, who had retained superior title to tho land and elected to recover it, was entitled to recover where purchase-money notes, though past due, had not been paid; there being no equities entitling defendant to tender purchase money and demand specific performance,
    8. Vendor and Purchaser <&wkey;299(3) — Remedy of Vendor — Pleading—Variance.
    In trespass to try title, that plaintiff vendor pleaded an unauthorized deed in rescission of contract would not prevent recovery upon a good title pleaded by him and admitted by defendant.
    9. Vendor and Purchaser <&wkey;102, 299(3) — Notice oe Intention to Rescind.
    Trespass to try title is a rescission in itself, and, while notice of intention to rescind might be important with respect to the right to redeem, it is unimportant so far as pleading title is concerned.
    10. Vendor and Purchaser <&wkey;299(3) — Rescission by Vendor — Pleading.
    In the absence of exception, plaintiff’s averment that ho placed on record an instrument purporting to be a contract of rescission would be sufficient allegation of rescission.
    11. Pleading <®=»34(1) — Intention oe Pleader.
    The intention of the pleader could not alter the legal effect of the facts alleged.
    12. Pleading i&wkey;376 — Pacts Admitted — Necessity of Proof.
    In trespass to try title it was wholly unnecessary for plaintiff to introduce evidence of facts pleaded by both sides.
    13. Pleading <&wkey;10 — Allegations of Legal Effect.
    In trespass to try title, plaintiff having pleaded the facts fully, it was unnecessary to state the legal effect thereof.
    Error from District Court,' Bexar County; W. E. Ezell, Judge.
    Suit by J. M. Nix against J. P. Withers and others. Judgment for plaintiff, and the Rock-hill Country Club Company brings error.
    Affirmed.
    Noah Allen, J. E. Carl, P. H. Swearingen, Jr., and G. G. Clifton, all of San Antonio, for plaintiff in error. Don A. Bliss, of San Antonio, for defendants in error.
   MOURSUND, J.

This suit was instituted by J. M. Nix in the form of an action in trespass to try title, seeking to recover 753.5 acres of land from J. P. Withers, Tom Ein-ucane and wife, Rock Hill Country Club Company, a corporation, hereinafter referred to as the company, and other parties, who disclaimed, and who need not be further mentioned. Nix sued out a writ of sequestration, which was levied upon the land, and he replevied the land. Withers and Ein-ucane and wife answered by general exceptions and plea of not guilty.

The company filed a cross-action against Nix and one Blandin, Nix’s tenant, alleging in substance that the land in controversy was part of a tract of 1,053.5 acres conveyed by Nix to Withers for $85,000, of which $15,000 was paid in cash and notes executed for the remainder; that all notes had been paid except two for $20,000 each, due respectively July 1, 1912, and 1913; that on or about August 15, 1913, Withers sold said land to the company for $150 per acre and was paid therefor $66,000, and said company took said land subject to the existing indebtedness against it of $40,000; that the company purchased the land for the purposes of its organization, and large sums of money were expended in the improvement thereof; that it would be inequitable to permit plaintiff to recover the land; that the company was ready and willing to pay and offered to pay, such sum as the court might find to be due to plaintiff as the balance of the purchase money for which plaintiff held and holds a vendor’s lien against the same; that this defendant is not advised and informed as to the exact amount due. The company also sought to recover of Nix and Blandin damages on account of waste and the value of the use of the land.

Nix and Blandin denied the commission of any waste, and denied the right of the company to recover damages, or to redeem the land. They also specially pleaded the facts relating to the sale of the land to Withers by Nix and the conveyance thereof by deed expressly reserving the vendor’s lien, and alleged that, upon the failure of Withers to pay the balance of the purchase money due, Nix, on November 20, 1912, filed suit against Withers for the balance due and for foreclosure of lien; that on March 2, 1914, an agreement of settlement of said suit was made, which was reduced to writing and executed by Nix and the company (which had purchased the land from Withers during the pendency of the suit), by the terms of which agreement Withers and the company were to execute deeds conveying to Nix the land in controversy, which deeds were to be deposited in escrow in the State Bank & Trust Company, to be ultimately delivered to Nix upon the failure of the company or Withers to pay said State Bank & Trust Company for the account of Nix on or before December 1,1914, the sum of $48,077 with interest thereon at the rate of 8 per cent, per annum from the date of the agreement; that it was further stipulated that if the amount was paid by December 1, 1914, the deeds were to be returned to them and the notes held by Nix canceled and the lien released; that the amount had not been paid, although an extension had been granted by Nix to January 1, 1915, and thereupon, in accordance with the agreement, the State Bank & Trust Company delivered to Nix the said deeds and to Withers the notes duly canceled; and that, the company and Withers having refused to deliver to him possession of said land, Nix brought this suit and sued out writ of sequestration.

The company replied with a verified plea, in substance, that it never executed said agreement, but that the same was executed in its name by Withers without any authority from it.

In obedience to tbe instruction of tbe court, a verdict was returned tbat Nix recover of tbe company, Withers, and Finucane and wife tbe land in controversy, and tbat tbe company take nothing by reason of its cross-action. Judgment was entered in accordance witb tbe verdict, from wbicb tbe company alone prosecutes tbis writ of error.

Tbe record fails to disclose any objections to tbe giving of tbe peremptory instruction, or tbat tbe charges requested by tbe company were tendered at the proper time and tbe refusal thereof excepted to. Owing to this condition of tbe record, tbe company is in no position to complain of tbe verdict and judgment, and, as all assignments relate to tbe sufficiency of tbe evidence to support tbe verdict and judgment, they must be overruled. Tbis court has heretofore held, and is still of tbe opinion, tbat tbe giving or refusal of a peremptory instruction does not raise a question of fundamental error. Strong v. Harwell, 185 S. W. 676; McCall v. Roemer, 186 S. W. 409; Land v. Johnson, 189 S. W. 337; Pearce v. Knights & Ladies of Honor, 190 S. W. 1156.

As tbe Supreme Court has granted a writ of error becausé of conflict upon tbe question whether article 1971, R. S., as amended by Laws of 33d Leg. p. 113, applies to a peremptory instruction, and has not passed upon tbe question, we deem it proper to say that, if objections bad been properly urged to tbe giving of tbe peremptory instruction, we would overrule tbe assignments of error, for we are of the opinion tbat tbe court was correct in his ruling.

Tbe facts, briefly stated, are as follows: Tbe 1,053.5-acre tract, of which tbe land in controversy is a portion, was conveyed by Nix to Withers on February 15, 1910, for 885,000, of which $15,000 was paid cash, and afterwards notes aggregating $30,000 were paid, and Nix, on August 22,1911, released to Withers and IVIasterson, who had become interested witb Withers, 300 acres lying nearest to tbe city of San Antonio; the vendor’s lien expressly retained in tbe deed remaining in full force against tbe remaining 753.5 acres to secure tbe payment of two notes for $20,-000 each, due on tbe 1st day of July, 1912 and 1913. These notes were not paid when due, and on November 20, 1912, Nix, who then owned tbe notes, sued Withers, and perhaps Masterson, to recover upon said notes and to foreclose the vendor’s lien. On August 12, 1913, tbe charter of Rock Hill Country Club Company was filed in tbe office of tbe Secretary of State. On tbe same date, Withers conveyed to H. C. King, Jr., as trustee for said corporation, 3,019.09 acres of land, and on August 13, 1913, ‘said King, joined by Withers, conveyed said 3,019.09 acres of land to tbe corporation. The 1,053.5-acre tract above referred to constituted a part of said 3,019.09 acres, and it was stipulated tbat tbe "741-acre tract,” out of said. 1,053.5-acre tract, covered by liens in favor of Nix, was conveyed subject to tbe lien, and tbe company was to bold Withers harmless with reference thereto. On March 2, 1914, an agreement was made in writing between Nix and Withers and tbe company, in settlement of tbe suit then pending, wbicb agreement has hereinbefore been described in stating tbe substance of plaintiff’s supplemental petition. Tbe suit was thereupon dismissed. Withers and tbe company failed to pay tbe balance of tbe purchase money on December 1, 1914, as provided in said agreement, and tbe time was extended to January 1, 1915. They again failed to make payment, whereupon tbe deeds were delivered as pleaded by plaintiff and duly recorded. Nix filed tbis suit on January 26, 1915. Tbe case was tried on January 18, 1916. Evidence was introduced tending to show that tbe company bad expended a large sum in preparing tbe land for tbe purposes for wbicb tbe company was chartered. Tbe board of directors consisted of Withers, H. O. King, Jr., S. A. Hopkins, J. H. Savage, and Harvey L. Paige. Hopkins and Savage did not testify. Paige bad no recollection of tbe matter of the settlement agreement ever being discussed by tbe board of directors, and disclaimed any knowledge thereof prior to tbe filing of tbis suit. He admitted knowledge of Nix’s lien. King, who was the secretary of tbe company, did not recall whether tbe board of directors ever held a meeting to consider tbe settlement before or .after tbe execution of tbe deed. He attested tbe deed as secretary and knew it was in settlement of tbe litigation. Withers testified, in substance, tbat tbe settlement was not authorized or ratified by tbe board of directors. Withers testified tbat for tbe two years preceding tbe trial there bad “been no money to get” ; tbat bis friends bad been exhausted; tbat be bad gotten about all tbe money from them they could put up; tbat in his opinion the land was worth $150 an acre, but be would not say tbat it would sell for that; tbat no one could tell what tbe land would have sold for; tbat nothing bad bad any market value in two years, and be would not undertake to say what tbe land in controversy would have sold for; that be would never have undertaken to sell the land, because no one would buy it. There was no testimony tbat the company bad ever tendered the amount due Nix, or that it bad ever been able to pay it, or tbat it was able to pay it at tbe time of tbe trial.

It must be conceded, we think, tbat it cannot be held that tbe evidence conclusively shows authority from tbe board of directors to make tbe deed executed by Withers and King, .or tbat their act was ratified by tbe board of directors. But, taking it for granted that Nix could not recover on tbe deed, it follows tbat be could not have lost bis rights as the holder of tbe superior title. Gardener v. Griffith, 93 Tex. 355, 55 S. W. 314; Collett v. H. & T. C. Ry. Co., 186 S. W. 233; Reyes v. Kingman Imp. Co., 188 S. W. 450. The company was chargeable with notice of his title and his rights when it purchased Withers’ equity in the land. If the company is chargeable with notice of the facts coming to the knowledge of its secretary, it had notice of the fact that it had procured a valuable extension by means of an agreement made by its managing officers to rescind the ex-ecutory contract if it could not pay the debt by December 1, 1914. If it is not chargeable with such notice, then the fact remains that the directors were negligent in not taking steps to acquaint themselves with the situation with respect to the Hen against the land, and the company is in no position to invoke the aid of equity to prevent the rescission. In fact, while the prayer of the company was to the effect that it be granted the right to redeem, it does not appear that it was ever able to redeem, or that it ever made any effort to do so, and when the case was tried it sought to procure a peremptory instruction to return a general verdict in its favor. In view of the facts of this case, we believe the company was not entitled to a decree for specific performance of the executory contract, and that the court did not err in instructing the jury to return a verdict in favor of Nix.

The judgment is affirmed.

On Motion for Rehearing.

We are of the opinion that a peremptory instruction is a charge within the meaning of the statute requiring objections to be made before the charge goes to the jury, and that a failure to object thereto constitutes a waiver of the error, if error there be, in giving the same. If the doctrine of fundamental error can be invoked to avoid the requirements of the statute, an assignment which requires a study of the statement of facts does not, we think, present a question of fundamental error. Houston Oil Co. v. Kimball, 103 Tex. 95, 122 S. W. 533, 124 S. W. 85; Railway v. Maxwell, 104 Tex. 632, 143 S. W. 1147.

Appellant company, upon the theory that its assignments are entitled to consideration, contends that appellee specially pleaded his title and relied solely upon the deed to him by Withers as president of appellant company, and that, as appellee failed to show authority from the board of directors to Withers to make the deed, this court erred in sustaining the peremptory instruction. Its contention is that we should render judgment for it for the land, and it is virtually admitted that it is in no position to demand the right to redeem. We will briefly consider the question whether the pleadings -are in such condition that appellant should have been awarded a judgment for the land without paying for it.

Appellees’ original petition was a formal action of trespass to try title.

Appellant answered by general denial and plea of. not guilty, and, by way of further answer and cross-action, alleged the sale by Nix to Withers of the land, the execution and delivery of the vendor’s lien notes, and the conveyance of the land by Withers to appellant company subject to the debt due Nix; such allegations disclosing that the notes had matured long prior to the bringing of the suit. It pleaded that it had equities, describing them, which entitled it to redeem the land from the purchase-money debt against it, and averred its willingness to pay the debt. Its prayer, aside from its claim for damages, is that the deed by Withers as president of appellant company be canceled, and that it be allowed to pay the purchase money due on the land. We find no mention of the deed from Withers to Nix in the original answer except in the prayer.

Plaintiff, by supplemental petition, admitted some of the averments of the answer, and -denied others. His pleading is fully described in our original opinion. Surely the facts pleaded by him showed that he had retained the superior title to the land; that Withers and appellant had refused to pay the notes, though past flue; and that he elected to recover the land. These facts entitled him to recover in the absence of equities entitling appellant to tender the purchase money and demand specific performance. Sanders v. Rawlings, 77 S. W. 41; Roosevelt v. Davis, 49 Tex. 464; White v. Cole, 87 Tex. 500, 29 S. W. 759; Buckley v. Runge, 136 S. W. 535. True, he also alleged that the company had conveyed the land to him in rescission of the contract. If this had been established, he could have recovered by virtue of the deed; but, even if the deed was unauthorized, the fact that he pleaded it would not prevent him from recovering upon a good title pleaded by him and admitted by appellant. Therefore, if it be said that by filing a supplemental petition Nix brought himself within the rule applicable to pleading title specially, it is clear that the facts pleaded by him, and admitted by defendant, showed that he held the title to the land, even though the deed from Withers to him was not authorized by the board of directors; and especially is this true in the absence of exceptions, as was suggested by Chief Justice Conner in the case of Berry v. Jagoe, 45 Tex. Civ. App. 6, 100 S. W. 815, when a somewhat similar point was sought to be made with respect to pleading. Appellant apparently is of the opinion that the holder of the superior title would have to formally allege that he had elected to rescind and pray in terms for rescission. In the cases of Roosevelt v. Davis and Sanders v. Rawlings, supra, no* such allegation was made, and the pleadings were held sufficient.

The suit for the land is a rescission in itself, and, while notice of intention to rescind might be important with respect to the right to redeem, it is unimportant so far as pleading title Is concerned. If it were, necessary to formally allege that plaintiff had elected to rescind, it occurs to us that, in the absence of exception, plaintiff’s averment that he placed on record an instrument purporting to he a contract of rescission hy the company would he sufficient allegation of rescission. Appellant calls attention to the fact that the deed from Nix to Withers and the vendor’s lien notes were not introduced in evidence as a fact showing that appellant did not depend on the superior title, but solely on the deed reconveying the land to him. The intention of the pleader could not alter the legal effect of the facts alleged, hut we fail to see any evidence of intention to rely solely on the deed. It was wholly unnecessary to introduce evidence of facts pleaded by both sides. It furthermore appears that Nix introduced the deed by Mary Gleason to him for the land, and thereupon “it was agreed by both parties that J. M. Nix originally owned the land and that the lien was retained in the deed to Withers.” Evidently such agreement was considered sufficient to obviate the necessity of introducing the deed in evidence. In addition, the facts are shown by recitals in other instruments and testimony of witnesses introduced without objection.

Appellee Nix pleaded the facts fully, and It was not necessary to state the legal effect thereof. The facts showed that he was entitled to recover the land unless the company proved equities entitling it to enforce specific performance, despite its default. The company abandoned its plea of right to redeem, and sought to obtain a judgment for the land upon the theory that Nix under his pleadings could only stand upon the deed by Withers as president of the company recon-veying the land to Nix. Appellant’s theory is erroneous. It is not entitled to recover the land.

The motion for rehearing is overruled.
      —-Fnr other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      ©=»For other cases see same topic and KEY-NUMBEB. in all Key-Numbered Digests and Indexes


author: SWEARINGEN, J.

text:
    BAKER v. LOFTIN et al.
    (No. 5886.)
    (Court of Civil Appeals of Texas. San Antonio.
    Oct. 24, 1917.
    Rehearing Denied Nov. 14, 1917.)
    1. Master and Servant @=3276(10) — Injuries on Tracks — Trespasser—Evidence.
    In an action for the death of a section foreman on the track with a motor at midnight, evidence hold sufficient to sustain a finding that he was not a trespasser.
    2. Master and Servant @=>281(1) — Injuries on Track — Negligence—Evidence.
    In an action for the death of a section foreman killed while on the track at midnight with a motor, evidence held sufficient to sustain a finding that he was not drunk, or lying on the track to sleep, or negligent.
    3. Master and Servant @=3278(18) — Persons on Track — Negligence — Sufficiency oe Evidence.
    In an action for death of a section man on track with a motor at midnight, evidence held sufficient to sustain a finding that the track was not so curved that the headlight did not show deceased, and that the trainmen should have seen deceased or his lantern in time to stop.
    4. Master and Servant @=3285(11), 289(39)— Persons on Track — Negligence — Proximate Cause.
    In an action for death of a section man on the track at midnight with a motor, whether negligence of the deceased or of the railroad was the proximate cause of the death held a question for the jury.
    5. Master and Servant @=>289(1) — Persons on Track — Negligence — Contributory Negligence — Standard oe Care.
    The question whether section foreman killed on a railroad track was in the exercise of such due care as would he expected of a reasonably prudent and careful person, under similar circumstances, is no more a question of law for the court than the question of negligence on the part of the railroad.
    6. Evidence @=>150 — Experiments — Light on Track.
    In an action for death of person on a track at night, evidence of experiments made under similar conditions, for the purpose of demonstrating that the headlight of an engine did not leave the track in darkness because of a curved .track, was admissible.
    7. Master and Servant @=>291(3) — Persons on Track — Pleading—Issues.
    A complaint in an action for death of section foreman, alleging that deceased was rightfully upon the track with motorcar in the night, justified an instruction suggesting that deceased “was on the motorcar, or standing or lying down near.”
    8. Master and Servant @=>286(31) — Persons on Track — Evidence—Instructions.
    In an action for death of section foreman on track, evidence held to warrant a submission of the question as to habitual use of the track as bearing on duty to keep a lookout for persons on the track.
    .9. Trial @=>296(4, 5) — Negligence—Instructions.
    A portion of a charge in a negligence case that omitted the duty of injured person to use ordinary care to avoid injury, was not error, where the charge in another paragraph correctly stated the ordinary care required of him..
    10. Railroads @=>369(4) — Persons on Track —Trespassers.
    It is the duty of a railroad to exercise care not to kill a trespasser or a drunken person.
    11. Master and Servant !⅜=247(1) — Railroads— Disobedience op Rules — Negligence.
    If a railroad’s engine was operated negligently and this negligence was the proximate cause of the death of a section foreman on the track with a motorcar, the railroad is liable, notwithstanding negligence of the foreman in being where he was.
    ■ Appeal from District Court, Brazos County; J. C. Scott, Judge.
    Suit by Smithie Loftin, for herself and minor children, against Jas. A. Baker, receiver of the Intel-national & Great Northern Railway Company. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    Doremus, Butler & Henderson, of Bryan, and Wilson, Dabney & King, of Houston, for appellant. Lamar Bethea and W. C. Davis, both of Bryan, and Ward & Biekett, of San Antonio, for appellees.
   SWEARINGEN, J.

Appellee, Smithie Lof-tin, widow of Charlie Loftin, for herself and as next friend and guardian of their two minor children, brought this suit against the appellant, acting receiver of the International & Great Northern Railway Company, to recover damages for the death of Charlie Loftin by the alleged negligence of appellant. Appellees’ first amended petition alleged as the cause of action that Oharlie Lof-tin was in the employ of appellant as foreman of the section of appellant’s track where the injury occurred; that deceased' was, by virtue of the duties of his employment, rightfully upon the track at the time, place, and manner when killed; that it was appellant’s negligence that proximately caused the injury, because the operatives of appellant’s train discovered the peril of deceased in time to have avoided the injury by the exercise of ordinary care, or if the peril was not actually discovered, yet the proximate cause of the injury was the negligence of appellant’s train operatives in failing to exercise that ordinary care to look out and discover the position on the track which the circumstances required of appel-ant. Appellant excepted to the sufficiency of the first' ¿mended petition, both generally and specially, generally denied appellees’ allegations, and specially answered that appellant was guilty of no negligence, but that deceased suffered the injury by reason of his own contributory negligence. The foregoing statement of the pleadings is intended to briefly outline the salient issues pleaded which will be considered by us with reference to the application thereto of the evidence by the jury and by the court in its charges. The case was submitted in a general charge, supplemented by specially requested instructions. Upon a verdict in favor of appellee judgment was rendered for $8,000.

The testimony developed the following facts: Oharlie Loftin was a section foreman in the employ of appellant, and lived in appellant’s section house at Fountain switch, which is about seven miles in a northern direction from Bryan, Tex., and about one mile north of the bridge near which deceased was killed at the time alleged, by appellant’s engine. Appellant furnished deceased with a motorcar to be used and operated by deceased on' appellant’s railroad track, subject to several rules known to deceased. Deceased employed laborers in the work required of him as section foreman. On Saturday, July 1, 1916, deceased, with his nephew and two Mexican laborers were busy performing their duties for appellant on the section until 5 o’clock p. m., after which time all four went on the motorcar from the section house at Fountain switch for the purpose, among other things, of getting money for the Mexican laborers. After arrival in Bryan, the Mexicans bought provisions, and about 9:30 p. m. all the party, boss, nephew, and laborers, mounted the motorcar to return from Bryan to the section house at Fountain switch. While in Bryan deceased and his nephew drank four of five glasses of beer each. When the party left Bryan, deceased had several bottles of beer and a 25 cent bottle of whisky with him. Deceased operated the motorcar. After traveling about five miles from Bryan, the car stopped at Thompson Creek crossing, which was about two miles from the section house at Fountain switch, and about one mile south of the scene of the killing. Here the entire party dismounted from the motorcar and remained nearly 2 ½ hours. The Mexicans mounted the motor first, deceased became angry with them and required them to get off. Then deceased attempted to force them to get back on, but the Mexicans ran off along the railroad track in the direction of the section house.. Deceased took his position on the motorcar and told his nephew to shove the car off, which he did. Deceased was angry with the nephew, and forced him to get off the motor while in motion. There was a lighted lantern on the frame of the motorcar visible from the rear of the motorcar. The motor was heard popping, by the nephew, as it went for quite a distance. The nephew made his way to the section house across the fields, where he secured a lantern for the purpose of returning to meet his uncle, but did not do so. The motor stopped near a bridge about 1,200 feet north from the Smetana Railroad crossing, a public crossing. The lighted lantern on the motor was seen burning at 12 o’clock, midnight, at this point by a party of boys and girls, who also heard a man singing in the neighborhood of the lantern. The light was visible from the Smetana crossing, and was seen by the group of boys and girls from distances of 200 to 500 yards, and seemed to be on the railroad track, near the railroad bridge. One of the girls saw the light from the lantern until the engine of the north-bound passenger train extinguished the lantern light, wrecked the motorcar, and killed the deceased. Smetana crossing was more than 1,200 feet south of the place of the injury, and the train operatives had an unobstructed view of the track ahead from the iSmetana crossing to the place of injury. No warning of any kind was given of the approach of this north-bound train.

There was testimony for appellant that the admitted 2 per cent, curve in the track, beginning just south of Smetana crossing and extending to a point beyond the place of injury, rendered it impossible for the engineer and fireman to discover the presence of deceased or the motorcar in time to avoid the injury. The testimony was that the headlight, because of the curved track, shone to the left of the track at the scene of the killing and left the place of injury in r darkness until tlie engine was within less I than 100 feet of the deceased, and that the train could not be stopped in less than 600 feet. Contradicting this testimony, there was evidence that the headlight of the engine enveloped the track, where deceased was killed in a bright light, from the'time the train reached Smetana crossing continuously as the engine approached the place of injury, and that deceased and the motorcar were clearly visible to the operating engineer and fireman continuously from Smetana crossing to the place of injury. According to appellant’s witnesses, the headlight was a narrow beam. According to ap-pellee’s the headlight was very wide. The evidence was undisputed that a light from a lantern on the top of the frame of the motorcar on the track at the place of the injury could be seen by the engineer and fireman as far back as the Smetana crossing, more than 1,200 feet away, and continuously from the Smetana crossing to the place of injury. The engineer and fireman both testified that there was no light from a lantern on the motor during the time the engine reached Smetana crossing and approached the place of the injury. i

The jury could, and probably did, find from the evidence that the engine headlight sufficiently illuminated the place of the injury in a way to give the engineer ample time to have avoided the injury, and that the lantern light did shine a warning of the danger of deceased, which warning signal should have been observed by the engineer, and the injury avoided.

The fireman testified that he discovered the deceased lying at right angles to the track, with his head on the left rail; that this discovery was made when the engine was about SO feet from deceased, and could not have been discovered sooner or further away because of the failure of the headlight to illuminate the curved track. The fireman further testified that he gave an immediate warning to the engineer of his discovery, and that the engineer brought the engine to a stop 675 feet beyond the place of the injury. According to the testimony of the engineer and fireman, the engineer saw the motorcar about the same moment that the fireman first saw the deceased; and the engineer did not discover the deceased, nor the fireman the motorcar' until after the killing. The location of the body and groceries tends to prove that deceased was on the motorcar where last seen by the nephew. The evidence fails to explain why the deceased stopped at the place of the injury, or why he remained there until hit. There was evidence that he may have been drunk. There was evidence that the motorcar may have gotten out of order. There was evidence that the motorcar was partially off the track before it was struck by the engine. Whether i it had become derailed or had gotten out of order and stopped, and deceased was trying to clear the track by removing it is not explained.

Deceased was an experienced section foreman, having worked for appellant in that capacity for about 9 years. He was 52 years old, strong and active.

The railroad track between Smetana and Fountain switch was habitnally used night and day by. the general public.

The engineer testified that it was his duty .to keep a lookout to avoid injuring persons between Smetana crossing and Fountain switch.

By the first assignment of error it is insisted that the trial court erred by refusing to instruct the jury to return a verdict for appellant. The reasons given by appellant are: That the' evidence conclusively shows that deceased was a trespasser, and that appellant owed, him no duty to keep a lookout; that deceased’s peril was not discovered in timle to have avoided the injury; that the proximate cause of the injury was deceased’s own negligence. With the opinions in the Shiflet, Malone, and Matthews Cases before us, we have carefully examined the merits of this assignment, and have reached the conclusion that the court did not err as assigned. St. Louis & S. W. Ry. Co. of Tex. v. Shiflet, 98 Tex. 326, 83 S. W. 677; St. L. & S. W. Ry. Co. of Tex. v. Shiflet, 94 Tex. 131, 58 S. W. 945; M., K. & T. Ry. Co. of Tex. v. Malone, 102 Tex. 269, 115 S. W. 1158. The evidence in the case at bar was sufficient to require the court to submit to the jury the issues assumed by appellant, viz.: Was deceased guilty of negligence? Was appellant guilty of negligence? Which negligence was the proximate cause of the injury, in the event both were negligent? Appellant contends that the court should find as a matter of law that deceased was guilty of negligence, because he was a trespasser; because he was drunk; because he laid down to sleep in. a dangerous position. The testimony in this case made all three of the above issues questions of fact for the jury, and will sustain a finding in, favor of appellees on all of them. It will sustain a finding that deceased was licensed by the appellant to use the track as he did, that deceased was not drunk, and that he was in the act of clearing the track after flagging the approaching train with a lighted lantern. The evidence will also sustain a finding of the jury that it was the duty of appellant’s engineer and fireman to keep a lookout, and that if this duty had been performed by both or either, the peril could have been avoided, for the engine light was sufficient to have disclosed the danger in time to have avoided the injury,' and the lantern light on the motorcar was also a sufficient warning.. Whether or not the negligence of the appellant was the proximate cause of the injury, even though deceased were negligent, was also an issue to be, and was, determined by tbe jury. Tire determination of Wliat was such, contributory negligence on the part of the deceased as would defeat this action, or perhaps, more accurately speaking, the question of whether the deceased, at the time of the fatal accident, was, under all the circumstances of the case, in the exercise of such due care and diligence as would be expected of a reasonably prudent and careful person, under similar circumstances, was no more a question of law for the court than was the question of negligence on the part of the defendant. There is no more of an absolute standard of ordinary care and diligence in the one instance than in the other. Grand Trunk R. Co. v. Ives, 144 U. S. 408, 12 Sup. Ct. 679, 36 L. Ed. 485; Ft. W. & D. C. Ry. Co. v. Broomhead, 140 S. W. 820-824; Railway v. Matthews, 32 Tex. Civ. App. 137, 73 S. W. 413, 74 S. W. 803; Railway v. Matthews, 100 Tex. 63, 93 S. W. 1068; Brown v. Sullivan, 71 Tex. 475, 10 S. W. 288; Tex. & Pac. Ry. Co. v. Watkins, 88 Tex. 20, 29 S. W. 232; St. L. & T. Ry. Co. v. Crosnoe, 72 Tex. 79, 10 S. W. 342; S. A. & A. P. Ry. Co. v. Jaramilla, 180 S. W. 1126. The first assignment is overruled.

The second, third, fourth, fifth, sixth, and seventh assignments assert that the trial court erred in admitting testimony, over objection, of several witnesses who testified to experiments made for the purpose of demonstrating that the headlight of an engine did not leave the track in darkness because of the curved track, but did light the track sufficiently for the engineer and fireman to discover the peril of deceased in time to have avoided the injury. The experiment was substantially similar to conditions surrounding the injury, and its weight and credibility were for the jury. The evidence was properly admitted. The assignments are overruled.

The eighth assignment complains of that portion of the charge which suggests that deceased “was on the motorcar,, pr standing or lying down near,” because there was neither pleading nor evidence- to support it. The pleading and evidence justify the language of the charge. The eighth assignment is overruled, and the ninth, which presents a similar question, is also overruled.

By the tenth assignment that portion of the court’s charge is attacked which instructs the jury that if it believed from the evidence that the portion of the track where the injury occurred was and had been commonly and habitually used by the public as a pathway by night, with the knowledge and acquiescence of appellant, etc. The propositions are that the evidence wholly fails to support such a charge. A number of witnesses testified that that portion of the track was commonly and habitually used by the public as a pathway for travel by pedestrians by night. This was not contradicted by any testimony. Many facts corroborating the evidence of habitual use were proven. The evidence that the railroad company acquiesced in this use is furnished by the engineer himself, who testified upon that fact as follows:

“From Smotana crossing I was keeping a lookout for persons or anything else on the track; that is my duty.”

The language used in the charge was warranted by the evidence. The tenth assignment is overruled.

The eleventh assignment complains that a portion of the charge omitted to instruct upon the duty of deceased to use ordinary care to avoid being injured. Inasmuch as the charge in another paragraph correctly stated that ordinary care was required of deceased, its omission from the portion of the charge attacked is not error. The eleventh assignment is overruled.

The twelfth assignment also attacks a portion of the court’s charge. The proposition is made that deceased was a trespasser, and that therefore the railroad company was not guilty of negligence in killing him. The criticism is not tenable. In the first place, the evidence does not show that deceased was a trespasser. In the second place, if he were a trespasser, it was the duty of the appellant to exercise care not to kill him. Davies v. Mann, 152 English Rep. 588; Railway v. Watkins, 88 Tex. 20, 29 S. W. 232; Street’s Shearman & Redfield, vol. 1, § 99; vol 2, § 484; Railway v. Broomhead, 140 S. W. 820; Railway v. Jaramilla, 180 S. W. 1126.

The thirteenth, fourteenth, fifteenth, and sixteenth assignments urge error in the charge for the reason that the issue submitted was not pleaded or not supported by testimony. The assignments are elaborately and ably presented, but are all overruled because there was both appropriate pleading and sufficient evidence to require the issue complained of submitted to the jury. The thirteenth, fourteenth, fifteenth, and sixteenth assignments are overruled.

By the seventeenth assignment appellant contends that the court erroneously instructed the jury to determine the issue of whether or not the negligence of deceased was the proximate cause of the injury, and erroneously instructed them that, if so, then to find for the appellant. Appellant seems to insist that if deceased violated the rules of the company, or was drunk, or was a trespasser, that the railroad company could kill him, unless it was proven that appellant’s operatives actually discovered the peril of deceased, and then, after discovery, were negligent in not avoiding the accident. The contention is not in accordance with the law. Such a doctrine was expressly repudiated in the first case we have been able to find reported on the subject. Davies v. Mann, 152 English Reports, 588; Railway v. Watkins, 88 Tex. 20, 29 S. W. 232; Railway v. Symkins, 54 Tex. 615, 38 Am. Rep. 632; Railway v. Jaramilla, 180 S. W. 1126; Railway v. Broomhead, 140 S. W. 820. The rule is that if appellant’s locomotive was operated along its railroad track negligently, and this negligence was the proximate cause of the injury, then appellant is liable for damages, notwithstanding deceased may have been guilty of negligence in being where he was. Whether or not this particular engine at that time was negligently operated is a question of fact to be determined by the jury from all the circumstances in evidence; and whether or not this negligence of the appellant was the proximate cause of the injury is an issue of fact to be likewise determined by the jury. The seventeenth assignment is overruled.

The eighteenth, twentieth, and twenty-first assignments all complain of various portions of the main charge for reasons all akin to those already herein disposed of. The eighteenth, nineteenth, twentieth, and twenty-first assignments are overruled.

By the twenty-second, twenty-third, twenty-fourth, twenty-fifth, twenty-sixth, twenty-seventh, twenty-eighth, twenty-ninth, and thirtieth assignments complaint is made because the trial court refused special instructions requested by appellant. All of these special instructions required the jury to return a verdict for appellant, for which reason none should have been given.

Assignments 22 to 30, inclusive, are overruled.

Tbe thirty-first assignment contends that the judgment is not supported by the evidence. We believe that appellant’s counsel is under a misapprehension of the effect of the evidence as applied to the law of this case. The thirty-first assignment is overruled.

The judgment is affirmed.
      @=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, C. J.

text:
    WEST TEXAS SUPPLY CO. v. DUNIVAN.
    (No. 743.)
    (Court of Civil Appeals of Texas. El Paso.
    Oct. 18, 1917.
    Rehearing Denied Nov. 15, 1917.)
    1. CORPORATIONS <§=376 — PURCHASE OF STOCK —Consent of Directors.
    A corporation when authorized by its directors may repurchase its own stock by consent of its stockholders.
    2. Corporations <§=>432(12) — Representation by Officer — Contracts—Evidence.
    In an action for conversion of a set of tin-ner’s tools which plaintiff claimed to have acquired from defendant corporation under a contract whereby he was to deliver to defendant shares of stock, where there was_ no evidence of any act of the directors authorizing the trade, or that the vice president who made the trade had been permitted to do similar acts, there could be no recovery.
    Appeal from Knox County Court; W. M. Moore, Judge.
    Action by J. T. Dunivan against the West Texas Supply Company. Judgment for plaintiff, and defendant appeals.
    Affirmed in part, and reversed in part and rendered.
    Jas. A. Stephens, of Benjamin, for appellant. Brookreson & Howell, of Benjamin, for appellee.
   HARPER, C. J.

Appellee sued appellant for the conversion of a set of tinner’s tools, and for $25 for services rendered. Appellant’s answer consists of demurrers, general denial, special denials of certain paragraphs of plaintiff’s petition, and that it was the owner of the tools in question. We refer to opinion of Court of Civil Appeals, Ft. Worth, Texas, 182 S. W. 425, for a more extensive statement of the case. The case was submitted to jury by special issues, and upon the verdict judgment was rendered for plaintiff (below) for $994.50, from which this appeal is prosecuted.

By its brief appellant urges eight assignments of error, and appellee objects to a consideration of them upon several grounds, such as not being in compliance with tbe rules, being multifarious, etc. We think them sufficient to permit their consideration. These assignments are all attacks upon the findings of the jury upon the special issues submitted. We, having decided that the following is conclusive of the merits of the cause, will confine the opinion to the one question.

The controlling issue in this case is: Did the West Texas Supply Company sell the tools in question to Dunivan? Special issue A complained of reads:

“Had the board of directors of the West Texas Supply Company of Benjamin, Tex., prior to the 1st day of September, 1913, by its customs, acts, and conduct, delegated authority to its president, W. P. Finn, to make or cause to be. made the trade in controversy?”

Tbe fifth assignment attacks the finding of the jury in response to special issue A, given at the request of plaintiff. The propositions are: (1) That there is no evidence that the directors authorized the trade; and (2) that they expressly repudiated or rescinded the attempted act of the vice president and manager before the consideration passed.

In Texas a corporation may repurchase its own stock with the consent of its stockholders (San Antonio Hardware Co. v. Sanger, 151 S. W. 1104); but in all eases it must be authorized by tbe directors of tbe corporation (section 4075, Thompson on Corporations [2d Ed.]). There is no evidence that the sale was made by Finn.

The testimony of John Albright, vice president and general manager, is undisputed. He said:

“I was vice president and general manager of the West Texas Supply Company of Benjamin, Tex., from its organization until November 1, 1913. I still own my stock in the company. About the 1st of September, 1913, Mr. W. T. Finn, president of the company, was at the store in Benjamin and had a talk with me, and said that the expenses were too heavy, and they were too heavy. He told me to discharge Mr. Dunivan. Mr. Dunivan was working for the company at that time, and I told Mr. Finn that I had hired Dunivan for a year, and that his time would not be out for some time yet, and that I could not discharge him under our agreement. We discussed the matter, and Mr. Einn asked me if I could trade Dunivan out some way to stop his wages, and X told him that I could trade him the tin shop for his stock as far as it went. He was fixing to leave for home, and told me to see Dunivan and let him know what I could do. I told him that I had already talked to Dunivan about it, and that he would trade. Mr. Finn then told me to go ahead and make the trade, and left, and I saw Dunivan and made the trade just like he told me to do. Dunivan agreed to take the tools and materials then on hand at their invoice price, and let the company take enough of his stock at its face value to cover the amount ;> he had one certificate of $500. I told him we would take this up and issue stock back to him for what he had left. He said he would go and get the stock, and we could fix it up. I told him, ‘No’; to wait until Mr. Finn came back to make the transfer of the stock, as at that time we had no secretary. Bob Gray, who was secretary, having sold his stock and retired from the company, it was necessary to have two of the officers of the company to make_ the transfer, and X was the only one at Benjamin. So we went ahead and invoiced out the stock, and it amounted to just a fraction less than $400, and I turned it over to Mm, and we closed up the trade. This trade was made the 1st day of September, 1913; the goods invoiced out on the 2d day of September, 1913. I stayed with the company as its manager until November 1, 1913, and Mr. Finn never made any kick about it while I was there, and I never heard of any from any one else while 1 was running the store.
* * * ¶¾6 directors at the time the trade was made with Dnnivan were myself, W. T. Finn, and W. T. Ward. During the entire time I was vice president and manager of the company there was never a meeting of the directors after the one of organization, and I never heard of such a meeting while I was running the store. I was not directed by the board of directors to make the trade with Dunivan; I made it by instructions from Mr. Finn. Dunivan was to run the tin shop in the back of the warehouse, and agreed to help me occasionally on little jobs for the rent, and Mr. Finn told me to arrange it that way, and the company was to pay him for work he did where it took much time. Dunivan did not bring and tender me the stock certificate at any time, but offered to go and get it, but I told him not to do it just then as the books could be fixed on that point when Mr. Finn came up, as it took two officers to transfer the stock, and our Secretary Bob. Gray had retired from the company, and I was the only proper officer to do this in Benjamin.
* * * I never made a trade like this for the company before, and I don’t know that I ever heard of a corporation trading for its stock before.”

Each of the other directors testified that he had not authorized Albright to make the trade. The evidence is conclusive that no meeting was held where such a resolution could have been passed by the directors, and no evidence of any such was ottered, and there is no evidence of any act of the directors which authorized Albright as agent to make the trade, and none that he (Al-bright) had been permitted to do similar acts in such way as to mislead the appellee to believe that he had such authority. We are therefore of the opinion that the sale was not lawfully made. It follows, therefore, that appellee never became the owner of the tools in question so as to charge the appellant corporation with their conversion. And it appearing that the evidence was fully developed, it devolves upon this court to here render the judgment that should have been rendered below.

Jury having found that the appellant owed appellee $19 for services rendered to it, to that extent the judgment of the trial court is affirmed, and as to the balance of the $994.-50 is rendered for appellant.
      É=sFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes