author: HUFF, C. J.

text:
    COONS v. LAIN.
    (No. 583.)
    (Court of Civil Appeals of Texas. Amarillo.
    July 4, 1914.)
    1. Appeal and Error (§ 759) — Assignments of Error — Condensed Assignments.
    Under rules 23 and 29 for Courts of Civil Appeals (142 S. W. xii), requiring the record to contain the assignments of error, and that appellant shall file a brief of the assignments of error relied on, presenting each ground separately under the proper assignments,' and that each assignment not so copied and accompanied with its appropriate propositions and statements shall be regarded as abandoned, assignments in a brief not purporting to be the same as those set by in the motion for new trial, but being condensed assignments, were waived.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. § 3094; Dec. Dig. § 759.]
    2. Appeal and Error (§ 742) — Assignments —Statements.
    Where the assignments of error and propositions thereunder were not followed by a statement referring to the record, as required by rule 31 (142 S. W. xiii) for Courts of Civil Appeals, the brief of appellant on such assignment would be disregarded.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    3. Trial (§ 356) — Special Issues — Answer to Part — Judgment.
    The mere fact-that some of the issues are not answered does not necessarily render a verdict void or insufficient to support the judgment, where .the issues answered decide the essential questions on which the merits of the case depend.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 849-854; Dec. Dig. § 356.]
    4. Contracts (§ 94) — Rescission—Fraud.
    Where plaintiff was induced to enter into a fraudulent and illegal contract upon defendant’s misrepresentation that it had been held by the courts to bo a legal contract which might be sent through the United States mail, plaintiff, on ascertaining such misrepresentations, was entitled to rescind the contract.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 420-430, 1160, 1164; 1165; Dec. Dig. § 94.]
    5. Contracts (§ 139) — Rescission—Parties in Pari Delicto.
    Plaintiff who, on defendant’s false representations that a proposed contract had been held legal by the courts, entered into it, and who received no benefit therefrom and abandoned it when he found it was illegal, was not in pari delicto, and could rescind and cancel the note given to defendant.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 684-700; Dee. Dig. § 139.]
    6. Appeal and Error (§ 759) — Assignments —Waiver.
    An assignment of error not copied into a brief will be considered as waived.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3094; Dec. Dig. § 759.]
    7. Evidence (§ 207) — Judicial Admissions— Admissibility.
    In an action to rescind a contract on the ground that plaintiff had been induced to enter into it by defendant’s false and fraudulent representations that the contract had been held by the courts to be legal and one that would not be excluded by the United States mail, and further alleging that defendant had pleaded guilty to an indictment in the federal courts for sending such contract through the mails and adver- ' tising it, the indictment and pleas of guilty were admissible in evidence.
    [Ed. Note. — For other eases, see Evidence, Cent. Dig. §§ 707-712; Dee. Dig. § 207.]
    Appeal from District Court, Wilbarger County; J. A. Nabers, Judge.
    Action by Walter Lain against Chas. E. Coons. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Cook & Cook and Cecil Storey, all of Vernon, and Mathis & Kay, of Wichita Falls, for appellant. Berry, Stokes & Morgan, of Vernon, for appellee.

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

   HUFF, C. J.

The appellee objects to the consideration of appellant’s brief on the ground that the assignments of error as presented to the trial court, in the motion for new trial, are not copied in the brief of appellant. The assignments in the brief do not purport to be the same as those set up in the motion for new trial, and upon examination we find that they are not the same; that is, they are what appellant calls condensed assignments in most instances. Under rules 23 and 29 (142 S. W. xii) we think the assignments should be considered waived by appellant. Ruth v. Cobe, 165 S. W. 530; Overton v. Colored Knights of Pythias, 163 S. W. 1053; Iowa Mfg. Co. v.. Walcowich, 163 S. W. 1054; Hayes v. Groesbeck, 146 S. W. 327; Bray v. Bank, 145 S. W. 290. The assignments and propositions thereunder are not followed by statements required by rule 31 (142 S. W. xiii), and the objections of appellee should be sustained, and the brief of appellant on said assignments will be disregarded.

The appellant presents its sixth assignment of error as fundamental. The case was submitted to the jury upon special issues. The jury returned a verdict in answer to quite a number of the issues, to the effect that they could not agree. In the statement under this assignment appellant sets out all the issues upon which the jury failed to reach an agreement, and then states, “Under this and other findings, the plaintiff made a motion for judgment, which the court rendered.” The other findings are not set out in this statement. If the jury’s findings on the other issues entitled the appellee to the judgment, then there was no fundamental error in so rendering the judgment. We have examined the other findings and think such findings authorized the court to render, a judgment for appellee. The appellant, we think, should have made the statement faithfully with reference to the whole of that which is in the record and having a bearing upon the proposition. The mere fact that some of the issues are not answered does not necessarily render the verdict void or insufficient to support the judgment. In the case of Sears v. Sears, 45 Tex. 557, Judge Moore said:

“The verdict of the jury on the issues upon which they found obviated the necessity of a direct finding upon the other issues submitted to them by the court. . The verdict decides the essential questions upon which the merits of appellant’s case .depended, and warrants and supports the judgment. This is all that was necessary for the jury to do.”

In O’Brien v. Hilburn, 22 Tex. 616, Judge Wheeler held:

“It is no objection to the judgment, that the jury did not find expressly upon all the issues submitted to them. It was only material, that their findings should embrace all that is essential to the rendition of the judgment, and this it does.” Poole v. Dulaney, 19 Tex. Civ. App. 117, 46 S. W. 276.

Appellee presented a number of issues which it was alleged entitled him to relief. On some of these issues the jury found for him, which findings entitle him to judgment. Where the findings of the jury or their failure to do so does not necessarily conflict with the findings made by them, the court can render judgment on the findings so made. Kelley v. Ward, 94 Tex. 289, 60 S. W. 311; Railway Co. v. Bender, 32 Tex. Civ. App. 568, 75 S. W. 561. The appellant, as an assignment of error, presents fundamental error to the effect that appellee alleged that the contract was fraudulent and against the laws of the country, and that appellee, as shown by the evidence, was in pari delicto, and therefore could not recover in this case. The allegation set up a contract which was fraudulent and against public policy and alleged the further fact that appellant was indicted and convicted in the federal court for using the United States mail in advertising the contract in question or a similar contract, and had written letters with reference to such fraudulent schemes; but it is also alleged that the appellee was induced to purchase one of these fraudulent contracts, which is designated by the parties as an endless chain contract, upon the representation that it was a business of high order, that it had been tested by the court and found entirely legitimate, and that it could be advertised through the mails with safety and with the literature which he (the appellant) would furnish, and that appellee would be entirely safe in dealing with the contract, etc., that appellee was a young and inexperienced boy and unlettered, and that as soon as he found out the nature of the contract he refused to have anything further to do with it, and that he turned the contract over to the federal authorities. Appellant was indicted and pleaded guilty to the charge of using the United States mail in furtherance of Ms scheme to sell this and similar contracts. The jury found appellant had made the representations that the contract had been tested in the courts and found legitimate, etc.; that this representation was not true; and that the representations induced appellee to enter into the contract and execute the note sought to be canceled.

The allegation, evidence, and findings of the jury are to the effect that the defendant was induced to enter into the contract upon the representations that the contract had been held to be a legal one by the courts and that the advertisement of the same could be made through the United States mail. The appellee did not seek in this case to be relieved because of the illegality of the contract, but on the ground that he had been induced to enter into the contract by fraudulent representations, that it was or had been held legal, etc. Having be'en so induced to enter into the contract by the statement of what purported to be a fact, which was afterwards ascertained to be false, we think that he should be relieved from such contract so entered into. U. S. Gypsum Co. v. Shields, 106 S. W. 724; South Texas Mortgage Co. v. Coe, 166 S. W. 419.

Appellee did not agree to enter into an illegal contract for illegal purposes, but agreed to enter into a contract held legal by the courts and one the United States mail would not exclude. The appellant asserted that his contract was such; the assertion was not an opinion, but was the statement of a- purported fact, which was afterwards shown to be false. The appellee, so soon as be found out it was an illegal contract, abandoned it. The jury found be received nothing under it, and, while there is some apparent conflict in his evidence on that point, we- find that there is sufficient evidence to support the finding of the jury. Under the allegation and the evidence, the appellee was not in pari delicto.

The twelfth assignment is not copied in the brief and will be considered waived. The bill of exceptions is not set out in the statement as required in the rules. We are, however, inclined to think the indictment and the plea of guilty thereunder in the federal court under the allegations made by appellee that the appellant had been indicted for sending this contract through the mails and advertising the same, and had pleaded guilty thereto, was admissible as evidence. Wisnieski v. Vanek, 5 Neb. (Unof.) 512, 99 N. W. 258; Meyers v. Dillon, 39 Or. 581, 65 Pac. 867, 66 Pac. 814. It was not conclusive evidence, but was subject to rebuttal.

We have reached the conclusion that the case should be affirmed.


source: Caselaw Access Project

author: SMITH, Special Chief Justice.

license: Public Domain

text:
    KRUEGEL v. MURPHY et al.
    (No. 6724.)
    (Court of Civil Appeals of Texas. Dallas.
    June 13, 1914.
    Rehearing Denied July 4, 1914.)
    1. Conspiracy (§ 1) — Civil Liability — Cause op Action — Elements.
    A conspiracy cannot be made the subject of a civil action, though damage results, unless something is done which, without the conspiracy, would give a right of action; the test being whether the act accomplished after the conspiracy has been formed is itself actionable.
    [Ed. Note. — For other cases, see Conspiracy, Cent. Dig. §§ 1-5; Dec. Dig. § 1.]
    2. Courts (§ 480) — Jurisdiction—Judgment —Injunction.
    A district court other than that in which a judgment has been rendered has jurisdiction to enjoin its enforcement by execution.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 1270-1278; Dec. Dig. § 480.]
    Appeal from District Court, Dallas County; J. C. Roberts, Judge.
    Suit by Herman Kruegel against J. P. Murphy and others. Judgment for defendants, and plaintiff appeals.
    Affirmed.
    See, also, 126 S. W. 343.
    Herman Kruegel, of Dallas, for appellant. Jeff Word and Cobb & Avery, all of Dallas, for appellees.

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

   SMITH, Special Chief Justice.

Appellant, Herman Kruegel, instituted this suit in the Sixty-Eighth district court of Dallas county, Tex., against appellees J. P. Murphy, Charles F. Bolanz, C. C. Cobb, J. M. Avery, J. W. Thompson, Jeff Word, H. W. Jones, Royal A. Ferris, E. B. Muse, J. Roll Johnson, Anson Rainey, John Bookhout, and J. M. Talbot, for 820,000 actual and $20,000 exemplary damages.

Aside from the many redundant and vituperative allegations not pertinent to the case, the petition, in substance, alleges a conspiracy between the appellees to deprive appellant of certain rights in this: Appellant alleges: That he was the legal owner and holder of a valid and subsisting judgment rendered in his favor against appellees J. P. Murphy and Charles F. Bolanz, composing the firm of Murphy & Bolanz, in the Fourteenth district court of Dallas county, Tex., on March 17, 1894, for the sum of $1,318.60, with 6 per cent, interest per annum from said date, and costs, and that after the date of the rendition of said judgment he caused a number of executions to issue for the enforcement of the same; but the same were returned and never executed, and the judgment has never been satisfied. That the third execution was issued May 12, 1903, and placed in the hands of appellee J. Roll Johnson, who was sheriff of Dallas county, Tex., and certain personal property was pointed out to appellee Johnson as the property of Murphy & Bolanz, and said appellee Johnson was instructed to levy thereon; but appellee Johnson, having been informed that the property so pointed out was not the property of Murphy & Bolanz, declined to levy on the same, unless an indemity bond was furnished him. At the same time appellant pointed out to appellee Johnson a burial lot as property of appellee Charles F. Bolanz, and instructed him to levy on same. Appellee Johnson levied on this lot and advertised it for sale. After the levy on the burial lot of appellee Charles F. Bolanz by appellee J. Roll Johnson, sheriff, appellee Charles F. Bolanz, acting through his attorneys appellees C. C. Cobb and J. M. Avery, brought suit in the Forty-Fourth district court of Dallas county to enjoin appellant and appellee Johnson from selling said lot, and from levying this or any other execution in favor of appellant on any other property belonging to appellee Bolanz. This injunction was prayed for on the ground that, since the rendering of appellant’s judgment, appel-lee Bolanz had been, by the District Court of the United States, Northern District of Texas, adjudged a' bankrupt, and had been discharged from liability on appellant’s judgment, and that appellant, since the rendition of the said judgment in the Fourteenth district court, had himself been adjudged, a bankrupt upon his own petition in the same bankruptcy court. After notice, and upon a hearing, the injunction as prayed for was granted, which injunction, it is alleged, is null and void, for the reason that appellant’s judgment was a judgment rendered in the Fourteenth district court of Dallas county, and the Forty-Fourth district court of Dallas county was ‘without jurisdiction to enjoin the same; that the judge of said court was disqualified in the case, because be bad been a creditor of Mur-pby & Bolanz when they were discharged in bankruptcy, and for other reasons; that thereafter, in pursuance of said injunction, which was alleged to be invalid, appellee Johnson returned the execution, indorsing it, “enjoined”, having made no .further effort to levy the same, and in like manner returned the fourth and fifth executions placed in his hands, without making a levy of them, though appellees J. P. Murphy and Charles F. Bolanz owned property on which the same could have been levied, and the amount of the judgment made. After the issuance of the fifth execution on the judgment claimed by appellant that had been rendered in the Fourteenth district court, upon application of ap-pellee Bolanz, through his attorneys, petitioned the Forty-Fourth district court to extend the injunction that had been granted by that court so as to apply to appellee H. W. Jones, district clerk, and his successors in office, enjoining them from the further issuance, on behalf of appellant, of execution upon said judgment, which, upon hearing, was granted, and thereafter, upon application by appellant to appellee Jones for the issuance of a sixth execution on his judgment against appellees Murphy & Bolanz, appellee Jones, as district clerk, because of the injunction against him, which was alleged to be void, for the reason that the Forty-Fourth district court was without jurisdiction to grant same, refused to issue the sixth execution, whereupon appellant instituted suit against appellee H. W. Jones, as district clerk, appellee Royal A. Ferris, as bondsman, and appellees J. P. Murphy and Charles F. Bolanz, for damages in the sum of $5,000 actual and $5,000 exemplary for the refusal of appellee Jones to issue said sixth execution. On the trial of said suit before E. B. Muse, district judge Forty-Fourth district, the defendants were represented by appellees J. W. Thompson and Jeff Word, attorneys at law, and through their wrongful contentions a judgment was rendered ror the defendants. The case was carried on error to the Court of Civil Appeals for the Fifth District, where the judgment was affirmed by the appellees Anson Rainey, Chief Justice of that court, and appellees John Bookhout and J. M. Talbot, Associate Justices. AH of said proceedings are alleged to have been had in pursuance of a common conspiracy between all the appellees to deprive appellant from collecting the judgment he held against Murphy & Bolanz; the wrongful acts alleged against the appellees being that this purpose was accomplished by means of an injunction rendered by a court without jurisdiction, and was void, and that appellees all knew the same to be void. Attached to appellant’s petition is a copy of the judgment claimed by him against Murphy & Bolanz, and a copy of the-decree of injunction enjoining the issuance and levy of execution for appellant on said judgment.

Among other defenses presented by appel-lees was a general demurrer and a general denial. Appellant filed a first supplemental petition in the case, and after exceptions reiterated the facts in his amended petition. Appellees’ general demurrer to appellant’s petition was presented to the court and sustained, whereupon appellant filed his second supplemental petition, which was by the court, on motion, stricken out, on the ground that the same was slanderous and scurrilous, and, appellant declining to further amend, the suit was dismissed, and the cause was brought to this court by appellant for review.

Appellant’s first five assignments of error complain of the failure of the trial court to pass on certain exceptions of appellant to certain defenses pleaded by appellees. In view of the fact that the case was disposed of by the general demurrer to appellant’s petition being sustained, it is unnecessary to notice the action of the trial court in this respect.

In the sixth assignment of error complaint is made of the action of the trial court in sustaining appellees’ general demurrer to appellant’s first amended original petition.

The gist of appellant’s cause of action is a malicious conspiracy between appelleels to procure, uphold, respect, and observe the injunction granted by the Forty-Fourth district court enjoining the issuance of appellant and the levy for appellant of an execution on the money judgment rendered in appellant’s favor in the Fourteenth district court against Murphy & Bolanz, which injunction decree is alleged to be invalid and void for lack of jurisdiction in the court entering it, and thereby damaging appellant by depriving him of the fruits of such judgment.

“A conspiracy cannot be made the subject of a civil action, although damages result, unless something is done which, without the conspiracy, would give a right of action. In other words, an act which, if done by one alone, constitutes no ground of action cannot be made the ground of such action by alleging'it to have been done by and through a conspiracy of several; that the true test as to whether such action will lie is whether or not the act accomplished after the conspiracy has been formed is itself actionable.” Delz v. Winfree, 80 Tex. 404, 16 S. W. 111, 26 Am. St. Rep. 755; Railway v. Greenwood, 2 Tex. Civ. App. 76, 21 S. W. 559.

It is strenuously insisted by appellant that the Forty-Fourth district court was without jurisdiction to render the injunction decree, and that the same is Invalid and void. This contention as to this decree has been made many times in the courts, and the reasons on which the contention is based have been many times considered, and it has been uniformly held that the court had jurisdiction to enter the decree, and that such decree is a valid and binding final judgment; and we are of opinion that such holdings are well supported by reason and fortified by authority, and that this question is settled. Kruegel v. Rawlins (Civ. App.) 121 S. W. 216; Kruegel v. Jones (Civ. App.) 121 S. W. 218; Kruegel v. Rawlins, 103 Tex. 86, 124 S. W. 419; Kruegel v. Murphy & Bolanz (Civ. App.) 126 S. W. 680; Kruegel v. Rawlins (Civ. App.) 148 S. W. 343.

It follows that the petition states no cause of action, and that there was no error in sustaining the general demurrer.

The matters complained of in the seventh and eighth assignments of error were matters addressed to the sound discretion of the trial court, and no abuse of that discretion is disclosed by the record in this ease, and the contentions in reference thereto are denied.

Complaint is made in the ninth assignment of error of the action of the trial court in striking from the files appellant’s second supplemental petition on the ground that the same was slanderous and scurrilous. We think there was no error in the action of the trial court.

The other assignments presented in appellant’s brief are without merit.

The judgment of the trial court is affirmed.


author: RASBURY, J.

text:
    SELDEN-BRECK CONST. CO. v. KELLEY et al.
    (No. 7159.)
    (Court of Civil Appeals of Texas. Dallas.
    June 13, 1914.
    Rehearing Denied July 3, 1914.)
    1. Trial (§ 119) — Argument—Issues.
    In an action for the death of a servant, where it was alleged that an open shaft in a building under construction and ladders .placed therein by defendant made the shaft, the only place furnished, an unsafe place for work, and in which defendant claimed to have used all ordinary means to prevent the injury, and where there was evidence that after his death the ladders were removed from the shaft and another place provided for the same work, argument for plaintiff that if defendant had removed the ladders from the shaft before the accident as promptly as it did after, and thereby afforded a safe place to work, deceased would have been alive and there would have been no suit, was not improper as urging a ground of negligence not alleged.
    [Ed. Note. — For other eases, see Trial, Cent. Dig. § 284; Dec. Dig. § 119.]
    2. Trial (§ 252) — Instructions — Application to Issues.
    In an action for a servant’s death by being struck by a falling piece of iron while at work in the bottom of an elevator shaft of a building under construction, where there was no evidence as to who or what caused it to fall, instructions as to whether defendant failed to exercise ordinary care to avoid injuring deceased, and, if so, whether such failure was the proximate cause of his injury, correctly covered the evidence; and hence the refusal to submit special issues as to how the piece of iron got to the elevator shaft and fell, and as to whether it was brought there and negligently or unintentionally allowed to fall, was not error.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dee. Dig. § 252.]
    3. Trial- (§ 350) — Instructions—Application to Evidence.
    In an action for the death of a servant killed by a piece of iron falling in an elevator shaft at the bottom of which he was working, where there was no evidence as to how or why it fell, defendant’s request to submit questions as to how the iron got to the edge of the elevator shaft, whether it was moved and whether it was caused or permitted to fall negligently or unintentionally, was properly refused as seeking to elicit the evidence by which the'facts were established, in violation of Rev. St. 1911, art. 1085.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 828-833; Dee. Dig. § 350.]
    4. Trial (§ 252) — Instructions — Application to Evidence.
    In such action, where the cause of the falling of the piece of iron was wholly conjectural and the jury could not have found that one not a vice principal of defendant caused it to fall, the submission of a special issue as to whether the servant’s death resulted from negligence on the part of some employé of defendant not a vice principal was properly refused.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. § 252.]
    5. Trial (§ 256) — Instructions—Omission-Request for Explanatory Instruction.
    In an action for a servant’s death, where the submission for plaintiff of the question whether defendant’s failure to use ordinary care to avoid injuring deceased proximately caused his injury was correct as far as it went, defendant, if desiring a more specific question concerning the proximate cause of death, or to have the jury restricted to a consideration of whether its control and handling of the iron which fell and killed deceased was negligent, should have requested such question, since such omissions are not reversible error in the absence of requested correct charges or queries.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 628-641; Dec. Dig. § 256.]
    6. Master and Servant (§ 278.) — Action for Injuries — Sufficiency of Evidence — Res Ipsa Loquitur.
    Evidence in an action for the death of a servant, killed by a piece of iron falling in an elevator shaft at the bottom of which he was working, where there was no evidence as to how or why it fell, held sufficient to sustain a verdict for plaintiff, within the rule res ipsa loquitur.
    [Ed. Note. — For 'other cases, see Master and Servant, Cent. Dig. §§ 954, 956-958, 960-969, 971, 972, 977; Dec. Dig. § 278.]
    Appeal from District Court, Dallas County; J. C. Roberts, Judge.
    Action by Elizabeth Kelley against the Sel-den-Breek Construction Company, and another. Judgment for plaintiff against Selden-Breek Construction Company, and it appeals.
    Affirmed.
    Lassiter, Harrison & Rowland, of Ft. Worth, for appellant. Carden, Starling, Carden, Hemphill & Wallace, of Dallas, for appellees.

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

   RASBURY, J.

Appellee sued appellant and Butler Bros, for damages for pecuniary loss resulting from the death of her son, Angus Kelley, due to injuries received by him while engaged in the performance of his duties as a plumber in the employ of William Burke, a subcontractor of appellant while the latter was engaged, in the erection of a building in the city of Dallas for Butler Bros. Appellee alleged, omitting formalities, in effect, that lier son’s duties at the time he was injured were being performed in the basement of the building, the entry and exit to and from which was by ladder placed in the opening or shaft intended for the elevators extending from the first or ground floor of the building to the basement floor, and that while her son was descending the ladder a heavy piece of metal, the property of appellant and under its control, fell down the elevator shaft from some point above, striking her son and inflicting upon him serious injuries, from which he died the same day. Appellee further alleged that she was unable to account for the fall of the piece of metal, but that it would not have fallen but for the negligence of appellant in allowing same to be handled, brought, or left in such proximity to the open elevator shaft as to permit same to fall, drop, or be pushed into said shaft, since appellant knew, or by the exercise of ordinary care could have known, that the shaft was used by employés of the subcontractor, and that appellee’s son was at work in the shaft, and that there were no platforms or other obstructions in the shaft to break the fall of any substance falling down same, nor any barriers or inclosures around the openings of the shaft to prevent such objects being pushed or dropped therein. Appellant tendered the 'general issue, and specially denied that the metal which fell upon appellee’s son was caused or permitted to fall by its negligence. Further, that appellee’s son was accustomed to laboring in unfinished buildings, and knew or in the exercise of ordinary care could have known that there was in and about the building upon which he was working various and sundry pieces of material and other things destined for use in the building, any of which would injure him if carelessly or unexpectedly precipitated by some one "down the elevator shaft, and that appellee’s son, being familiar with such conditions, assumed the risk of that which injured him, and was not therefore entitled to recover. We deduce, in support of the verdict of the jury, from the evidence in substance the following essential facts: Appellant was, at the time Angus Kelley was killed, a private corporation engaged in erecting for Butler Bros, an eight-story commercial building in the city of Dallas. Appellant had sublet the plumbing work for the building to William Burke, and Angus Kelley was employed by Burke as a journeyman plumber on that part of the work. The building was in an unfinished condition, but that fact is material only with reference to the elevator shaft and its surroundings. This shaft, one of several, extended from the basement to the top of the building and had been used by the workmen in mounting from one floor to ’the other, the means being a ladder placed on each floor, beginning with the basement, and leading to the next floor above, and it was the custom to transport material from floor to floor through the shaft and by the ladders. Around the openings of the shaft on each floor there were no railings or barriers. One of the witnesses, the architect, testified that 2x12 planks were laid across the openings, except for a space large enough for the workmen to pass up the ladders, but that they were at times removed. There was proof tending to show that at the time of the accident the shaft had been cleared of all ladders and other obstructions by the Otis Elevator Company, preparatory to installing the elevators therein, and the workmen warned to keep out of the shaft, and there was testimony tending to show that the steps enumerated were taken after the accident. At the time Kelley was killed he was either descending the ladder which led down to the basement or standing, thereon at work. He was killed by being struck by a descending angle iron or door jamb precipitated down the elevator shaft from somewhere between the third and seventh floors. Only one witness saw the descending piece of iron, and he nor any other witness was able to explain what caused same to fall. Its fall is wholly without explanation. The door jamb or angle iron is what its name indicates, and was used at each door opening in the building instead of brick at that part of the jamb next to the floor. It was 36 inches long, 24 inches wide, and weighed 107 pounds. These irons, 36 in number, had been received and distributed over the building by appellant prior to the accident, 12 of them having been placed in the door openings. Appellant had general charge and control of all the work through A. J. James, general superintendent and vice principal. There were 300 or 400 men employed on the building. We will state any other evidence that may be necessary and our conclusions therefrom in discussing the various assignments of error. There was a jury trial which resulted in verdict for appellee for $5,000, followed by similar judgment, from which this appeal is taken.

The first assignment of error is based upon alleged improper argument of counsel for appellee, who, in presenting the case to the jury, argued that if appellant had removed the ladders from the shaft before the accident as promptly as it did after, and thereby afforded Kelley a safe place to work, he would have been alive and there would have been no lawsuit. The proposition is that by such argument a ground of negligence not alleged was urged as the basis of verdict for appellee. Appellee alleged, among other things in effect, that the open shaft and the ladders placed therein by appellant was not a safe place in which to work, but the only one furnished by appellant for the purpose for which it was used, and there was much testimony supporting that theory, and some tending to show that after Kelley was injured the ladders were removed from the shaft and another place provided for the men to be used for the same purpose that the shaft had been used. The trial judge qualified the bill of exception preserving the objection to the testimony by the explanation that counsel for. appellant had, in presenting the case to the jury, stated that appellant had used all the means to prevent the injury to Kelley that were ordinarily used under like conditions. Thus it appears that the argument really had reference to whether or not appellant had exercised care in furnishing Kelley a safe place to work, not that the ladder was unsafe. In fact that part of the evidence preserved in the bill of exception shows such to be the case, since counsel distinctly speaks of a “safe place to go up,” meaning of course the shaft down which it was alleged the iron had been precipitated,-and it occurs to us that it was not improper, in answer to appellant’s claim of care in providing a safe place to work, to argue that if the ladders, upon which the.workmen ascended and descended to their work had been placed at some spot other than the open shaft, the injury probably would not have occurred. Further, it is not shown or claimed that such argument in any respect caused an excessive verdict, which fact, coupled with the further fact that it is not claimed that the verdict is against the-weight or the preponderance of the evidence, indicates that the argument was harmless, even though improper, as contended by appellant.

The second, third, fourth, and fifth assignments of error will be considered together. The issues of fact were submitted to the jury upon special issues, and by the assignments enumerated it is urged that the court erred in refusing to submit to the jury the following questions:

“(a) How did the jamb guard in question in this case get from the place where it was laid to the edge of the elevator shaft?
“(b) Did it,- or not, get to the elevator shaft by the act of some person or persons in taking hold of it and moving it?”
“(a) Did some person or persons move this jamb guard from its position on the floor and bring it to or near the elevator shaft and cause or permit it to fall down the shaft?
“ (b) If so, did such person or persons drop the jamb guard down the shaft intentionally or unintentionally?
“ (c) If some person or persons unintentionally caused the jamb guard to fall, was this negligence on the part of such person or persons?"

It is urged by appellant that since the evidence wholly fails to disclose how the iron fell down the shaft and since the weight of the iron precludes any theory other than that the same was precipitated down the shaft by some human agency, the questions were pertinent and bore directly upon appellant’s liability, and should have been submitted to the jury. We are of opinion that the court was correct in refusing to submit the questions. There is in the record of the evidence not a single fact or circumstance that would have sustained an affirmative finding upon any of the questions. It is a curious and anomalous situation, but nevertheless true so far as the record discloses, that those in charge of the building and those interested in Kelley’s misfortune were unable to secure from the several hundred employés upon the building a single fact or circumstance upon which an inference or theory could be based concerning who or what precipitated the iron down the shaft. The evidence thus failing to disclose the cause, and, the shaft being in the open and dangerous condition it was, and it being undisputed that the iron did in fact fall down the shaft from above and injure Kelley, the court correctly covered the facts in evidence when the jury was asked if appellant failed to exercise ordinary care to avoid injuring Kelley, and, if so whether such failure was the proximate cause of his injury. Of course, there were other features of the case which were covered by the charge of the court, but we are now discussing, in the light of the testimony in the record, only those questions requested by appellant to be submitted to the jury and refused by the court and those actually submitted by the court to the jury.

It is also urged by counsel for appellee that the special questions were correctly refused, among other reasons, because they sought) to elicit from the jury, not the facts established by the evidence, but the evidence by which the facts were established. Article 1985, R. S. 1911. An examination of the special questions will, in our opinion, support the contention, since the special questions relate categorically to. circumstances theoretically possible in the case, but which, as we have said, are not supported by a fact or circumstance in the record, and a discussion of which would be purely academic.

The sixth assignment complains of the refusal of the court to submit to the jury whether or not the death of Kelley resulted from an act of negligence on the part of some employs of appellant not a vice principal. As we have said at another place, the cause of the falling of the iron is a mystery, and the jury could not have correctly found that one not a vice principal of appellant caused the iron to fall. That particular fact, although undisputed, was unexplained, and must be inferred from other facts. It being so, more cannot be said than that" the issue should not have been submitted.

The eighth assignment of error is a criticism of question No. 2, submitted to the jury. This question is:

“Did Selden-Breck Construction Company’s failure, if any, to exercise ordinary care to avoid injuring Angus Kelley, upon such occasion proximately cause him to be injured?”

The query as far as it goes is correct, and followed, a question as to whether appellant failed to exercise ordinary care to avoid injuring Kelley at the time he was injured. If the appellant desired a more specific question concerning the proximate cause of Kelley’s death, or desired the jury restricted to a consideration of whether appellant’s control, management, and handling of the iron was negligence, it should have requested such question, since it has long been settled that such omissions are not reversible error in the absence of requested correct charges or queries.

The ninth, tenth, eleventh, and twelfth assignments are that the evidence is insufficient to support the finding of the jury upon the several issues of fact submitted by the court to the jury. These assignments we believe it is our duty to overrule. The work, in all its details, was in charge of the general superintendent of appellant, its vice principal. The only fact that can he said to be lacking of direct proof is that some one representing appellant caused the iron to fall down the shaft. All those upon the work were there under the control and direction of appellant, engaged in the construction of the building, and that the iron could have been moved or dropped down the shaft except in obedience to orders given in prosecution of the work in which all were engaged passes comprehension. No motive is shown or even hinted at by the testimony as indicating that some one with evil intent deliberately or maliciously dropped the iron down the shaft. Twenty-four like irons had not been placed, and the placing of them was in progress at the time Kelley was injured, and since one of them in fact did fall, the conclusion seems inevitable that it must have fallen while it was being moved about preliminary to placing it.

A careful consideration of all the evidence leads us to the conclusion that it presents a case well within the rule of res ipsa loquitur.

The judgment is affirmed.


author: HARPER, C. J.

text:
    RICHARD COCKE & CO. v. NEW ERA GRAVEL & DEVELOPMENT CO.
    (No. 340.)
    (Court of Civil Appeals of Texas. El Paso.
    June 11, 1914.
    Rehearing Denied July 2, 1914.)
    1. Sales (§§ 843, 344) — Contracts—Quantum Meruit.
    Whhre the parties to a contract for the sale of goods did not agree on the essential terms of the sale, but the buyer admitted that he received the goods and appropriated the same to his own use, and both parties introduced evidence as to the reasonable market value and the quantity of the goods delivered, the court properly permitted recovery on quantum meruit as alleged in the pleadings.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 947-955; Dec. Dig. §§ 343, 344.]
    2. Sales (§ 348) — Action lor Price — Defense-Evidence.
    Where in an action for the price of gravel sold and delivered, there was evidence that a car of gravel had to be cleaned, and that the buyer disposed of the same at the same price as he disposed of other gravel, and did not show that he paid anything for cleaning, he was not entitled to anything for cleaning.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 973-986; Dec. Dig. § 348.]
    3. Sales (§418) — Contracts—Breach—Measure of Damages.
    The measure of damages for a breach of contract of sale of gravel, caused by the seller delivering a car of gravel which had to be cleaned, is the difference between the value of the gravel in the condition it was when delivered and that which it should have been under the contract calling for clean gravel.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1174-1201; Dec. Dig. § 418.]
    4. Trial (§ 192)— Instructions — Assumption of Facts.
    A party who admits in his pleading .a fact, is bound thereby, and the court may assume that fact in its instructions.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 482-434; Dec. Dig. § 192.]
    5. Appeal and Error (§ 1068) — Harmless Error — Repetitions in Instructions.
    The error in repeating in the instructions a proposition that plaintiff was entitled to recover a specified sum was not reversible, where the jury found for a much larger sum.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4225^1228, 4230; Dec. Dig. § 1068.]
    6. Trial (§ 315) — Evidence—Questions fob Jury.
    Where, in an action on a quantum meruit, the testimony as to the weight of a cubic yard of gravel is conflicting, the jury may take an average between the two extremes stated by the witnesses, and they are not confined to the express contract pleaded.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 740-742; Dec. Dig. § 315.]
    7. Witnesses (§ 391) — Impeachment—Evidence.
    Where a party testified that a witness had made a statement to him, the testimony of a third person that in conversation with him the witness had made a contrary statement was admissible as impeaching testimony.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 1248'; Dec. Dig. § 391.]
    8. Witnesses (§ 395) — Examination—Corroboration.
    Where an effort is made to show that the testimony of a witness is fabricated, proof that the witness made other statements at other times similar to his testimony is admissible.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 1260; Dec. Dig. § 395.]
    9. Evidence (§ 354) — Books—Admissibility.
    Where, in an action for gravel sold and delivered, a witness testified that the books of the seller would show the price and the number of pounds per cubic yard agreed on, and defendant showed that the witness had stated that the gravel was contracted for at a specified number of pounds to the cubic yard, the books were admissible.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1432-1483; Dec. Dig. § 354.]
    10. Appeal and Error (§ 548) — Questions Review able — Rulings on Evidence.
    Assignments of error complaining of the admissibility of evidence will not be considered on appeal, in the absence of any bills of exceptions.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2433-2440; Dec. Dig. § 548.]

      Appeal from Harris County Court; Clark C. Wren, Judge.
    Action by the New Era Gravel & Development Company against Richard Cocke & Co. Erom a judgment for plaintiff, defendant appeals.
    Affirmed.
    Warren & Simmons, of Houston, for appellant. Ross & Wood, of Houston, for appel-lee.

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

   HARPER, C. J.

Appellee brought this suit against the appellant for $477.96, alleging that either in the latter part of 1911 or early part of 1912 it entered into a contract to deliver gravel to the appellant in payment of a loan of §1,000, at the rate of $1.90 per cubic yard, on a basis of 3,000 pounds to the cubic yard; that there was delivered to appellant 1,034.326 cubic yards at said price; and thafby special agreement for a special grade of gravel 37,466 cubic yards were sold at $2 per cubic yard. In addition to the foregoing plaintiff alleged that it paid $24 demurrage due to the fault of the defendant; that thereafter by agreement plaintiff delivered to defendant certain other gravel -at $2 per cubic yard, on the basis of 2,800 pounds to the cubic yard; that after giving defendant such credits as he was entitled to there was a balance of $477.06 due and unpaid. In separate count he alleges his cause of action upon quantum meruit for gravel sold 'and delivered at $2 per cubic yard on the basis of 2,800 pounds per cubic yard.

Defendant answered by general denial; by special answer alleged: That about November 23, 1911, the defendant and plaintiff, by its duly authorized agent, made and entered into a contract, by the terms of which plaintiff sold and delivered to the defendant the gravel sued for, but for $1.90 per cubic yard car measurement of 3,300 pounds to the cubic yard; that the defendant advanced to the plaintiff $1,000 in cash, and that, by the terms of the agreement, whenever the gravel furnished by the plaintiff should equal the cash advanced, then the plaintiff should continue to furnish to defendant gravel at $1.90 per cubic yard upon a basis of 3,300 pounds; that, as soon as the gravel delivered aggregated in value the sum advanced, defendant offered to settle with plaintiff, and tendered his check for $66.68, which was refused, without objection to the form of tender. Defendant further set up counterclaim for $11.50 for a ton of coal furnished and $23.23 for one car of gravel, and one ton of coal, $11.50, and coal furnished, $24.50, and freights paid, etc., al: leging that there was a balance due of $40.18 to plaintiff.

Tried before a jury, and verdict for plaintiff for $407.56, from which judgment this appeal is perfected.

The first assignment charges that:

“The court erred in its general charge as follows: ‘Now, if you find from the evidence that, as claimed by plaintiff, it had a contract with the defendant to furnish gravel on a basis of $1.90 per cubic yard of 3,000 pounds each, and a subsequent contract to sell defendant gravel at $2 per cubic yard of 2,800 pounds each, then you will let your verdict be for the plaintiff for the amount of gravel which you may find. it sold defendant on the basis of $1.90 per cubic yard of 3,000 pounds each, and also for such amount of gravel as you may find it sold to defendant on a basis of $2 per cubic yard of 2,800 pounds each, and if you find from the evidence that any of said larger weight per cubic yard gravel was sold to defendant at a basis of $2 per cubic yard, you will make such allowance in your verdict,’ in that: (1) There was no evidence upon which said charge could be based that plaintiff had a contract with the defendant to furnish gravel to the defendant on a basis of $1.90 per cubic yard of 3,000 pounds each; and (2) there was no evidence upon which to base said charge that the plaintiff had a contract with defendant to furnish the defendant gravel at $2 per cubic yard of 2,800 pounds each; and (3) there was no evidence upon which to base the said charge that the plaintiff had a contract with the defendant to furnish him gravel at $2 per cubic yard of 3,000 pounds each.”

This paragraph of the court’s charge affirmatively and fairly presents the plaintiff’s case, as pleaded in the first count of the petition, and, without quoting it because it could serve no good purpose, the evidence is sufficient to require the court to submit the issues therein enumerated. And is not subject to the criticism that, when construed with other portions of the charge quoted by appellant, it is a direct charge to find for the plaintiff.

The second assignment is that the court erred in submitting to the jury the $24.50 de-murrage item: (a) Because there was no pleading; and (b) because there was no evidence to support a finding for plaintiff by the jury.

Attached to plaintiff’s petition is an itemized statement which includes the item of $24.50 demurrage, and the evidence is sufficient to require the charge given.

The third complains of the charge of the court which submitted the plaintiff’s plea on quantum meruit, because there was no evidence to authorize it thus to permit the jury to ignore the testimony of the parties as to the terms of the agreement between them, as to the price and weight, and find for plaintiff for the reasonable market value and the actual weight per cubic yard of gravel.. It further charges that the charge given was an affirmative charge to find for the plaintiff, and is therefore upon the weight of the evidence.

The minds of the parties must meet upon the essential terms before there can be an express contract. In this case the plaintiff alleged a contract defining its terms up to full payment of the $1,000 advanced, and then that it notified defendant of the advance in price to $2 per 2,800 pounds per yard. Defendant denies that he entered into any such agreement, and denies that he was notified of any change in the contract, and alleges a different agreement as to a material element in the contract, viz., the weight of gravel per cubic yard. The plaintiffs’ evidence tracts to the letter the contract alleged, and defendant’s likewise, if believed, by the jury, established the terms as he alleged them; so it is apparent that the minds of the parties were never together. Both parties introduced evidence upon the question of reasonable market value and the actual weight of the gravel per cubic yard. Defendant admitted that he received the gravel and appropriated it to his own use. It was therefore proper for the court to submit the case as was done, and the charge given is not subject to the criticism that it is upon the weight of the. evidence. This also disposes of eighth and ninth assignments, except as to second proposition under the eighth, which is disposed of in its order hereinafter.

The fifth complains that the court erred in charging the jury not to allow defendant anything in the item of $24.23 for a car of gravel which had to be cleaned. The proposition is that there was evidence in the record tending to support appellant’s claim. It was therefore error to charge the jury to find against him.

The testimony quoted by appellant in support of his proposition is: Plaintiff testified:

“The item of $24.23 set out in my answer for a car of gravel was one which plaintiff shipped to me. It was muddy. I delivered this gravel to Lisle & Dunning on the Dooley job in this city. I did not consider the gravel worth anything, and I charged the price of it back to the company.”

Marsac testified:

“Yes; I know about the gravel you inquire about which Richard Cocke refused to pay for, claiming that it was not good gravel. That was some gravel that was delivered by me for Richard Cocke to Lisle-Dunning Company at the Dooley Building, in this city. This particular lot when it was put on the ground was rejected by the architect, as he said it was not cleaned; that there was mud on it. I had to be around the building, looking after the delivery of gravel, and I got a couple of men and took a hose and turned it on the gravel and washed it. The men shoveled the gravel over while the water was running on it, and when this was done the gravel was accepted without further question by the architect, and went in at the same price as the other gravel. I think the pi'ice paid to Richard Cocke & Co., for the gravel was $2.49 per cubic yard. There was no further question made about the gravel, and there was no deduction made of the price. I did not lose any time in the matter, as I had to be around the building anyway. The two men turned over the gravel and washed it, beginning some time, as near as I can remember, about 9 o’clock, and they were through before night. I do not know what was paid for the work, but suppose their time was worth about 15 cents per hour.”

The evidence shows that defendant disposed of this gravel' at the same price as the other gravel, that it was cleaned by some men before it was accepted; but there is no evidence defendant paid anything for the work of cleaning, so there was no basis for a finding for defendant.

Besides, the measure of his recovery should have been the difference between the value of the gravel in the condition it was when delivered and that which it should have been under the agreement between the parties. As to this there was no pleading or proof. Defendant could not keep the gravel and not pay.

Sixth assignment charges that:

“The court erred in its general charge as follows: ‘The defendant admits owing plaintiff the sum of $66.98, and you will in any event find for plaintiff for at least that amount, it being the sum which defendant has tendered into court.’ The charge is erroneous in its statement to the jury that the defendant admitted owing plaintiff $66.68 and instructing the jury to find for plaintiff for at least that amount. The defendant tendered into court the said sum of $66.68, as shown by his pleadings as being more than was due the plaintiff. Said pleadings allege the amount owing to be $40.18.”

The defendant having admitted in his pleading that he owed that amount and tendered it into court, he was bound by it, and the court did not err in so charging the jury. The appellant has not cited us to any repetition of this item as complained .of, and if it had been repeated unduly it could not be reversible error, because the jury found for a much larger sum.

The eighth assignment charges that the verdict of the jury and the judgment rendered thereon are contrary to law because without evidence to support them. His proposition being that there was no evidence upon which the verdict of. the jury could be based for 416.427 cubic yards of gravel at 2,900 pounds to the cubic yard at $2 per cubic yard, as per second item set up separately in jury’s verdict.

No witness testified that a cubic yard of gravel would weigh exactly 2,900 pounds, but there was much testimony adduced upon the trial, witnesses fixing the weight from 2,800 to 3,300 pounds per cubic yard. Some testified the weight varied according to the size of the gravel; the weight being more if the gravel were small than if large, etc. Since it is evident that as to this item the jury were finding for plaintiff upon his plea of quantum meruit, and the testimony as to the weight of a cubic yard of gravel having taken such a wide range, the jury were justified in finding for the plaintiff the average between the two extremes, and they were not confined to the express contract pleaded by the parties as contended for by appellant.

The tenth assignment charges that it was error to admit the testimony of Dr. J. W. Shearer that McCain told him that the contract between him and defendant Cocke was that plaintiff company was to furnish gravel to the defendant Cocke at $1.90 per cubic yards of 3,000 lbs. each, because same was hearsay. Defendant Cocke having testified that the witness (McCain) had told him that the contract made with him, McCain, on behalf of the company, was to pay the advance I made him in gravel at $1.90 per cubic yard of 3,300 pounds. This evidence was admissible as impeaching testimony.

Also, where an effort is made to show that the testimony of a witness is fabricated, instead of being a narrative of the facts, as they occurred, proof that the witness made other statements at other times similar to his testimony upon the trial is admissible.

McCain testified that the books of the plaintiff company would show the price and the number of pounds per cubic yard agreed upon by himself and defendant Cocke.

Defendant having introduced evidence that witness McCain had made the statement that the gravel was contracted at 3,300 pounds to' the cubic yard, the books and also the testimony of witness Shearer were admissible. Stephenson v. Jackson, 128 S. W. 1196. This disposes of the eleventh assignment.

The thirteenth, fourteenth, sixteenth, eighteenth, twenty-first, twenty-seventh, and twenty-eighth are not in conformity with rule 29 of rules for the courts of Texas, in that they are not numbered in their consecutive order. The brief does not show any bills of exceptions. Assignments complaining of admissibility of evidence will not be considered, unless bill of exceptions were preserved in the lower court and presented here.

The assignments are all overruled, and judgment of the lower court affirmed.


author: DUNKLIN, J.

text:
    CLEBURNE ST. RY. CO. v. BARNES et ux.
    (No. 7995.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    June 6, 1914.
    Rehearing Denied July 4, 1914.)
    1. Trial (§ 284) —Instructions—Approval by Failure to Object — Requested InSTRUCTIONS.
    Where a party requested instructions which were refused, but he failed to object to the charge before it was given, so that under Rev. St. 1911, arts. 1971, 1973, 1974, 2061, as amended by Acts 33d Leg. c. 59, it is to be regarded as approved by him, the charge is to be considered as requested by him, as regards right to complain of refusal' of the instructions, within the rule that, if one requests two different instructions on the same issue and one of them is given, he cannot complain of the refusal of the other.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 683-685; Dec. Dig. § 284.]
    2. Tbial (§ 278) — Instructions—Sufficibn-cy op Objections.
    The objection to a charge during the trial should be as definite and specific as is required of an assignment of error to the giving of it.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 686, 6S9; Dec. Dig. § 278.]
    8. Tbial (§ 282) — Refusal op Instructions —Sufficiency op Objection.
    The objection to the refusal of a request to instruct the jury to return a verdict for defendant, because plaintiff’s evidence is insufficient to sustain a recovery, not pointing out wherein the evidence is insufficient, is too general; the claimed ground of insufficiency of the evidence being that, wMle plaintiff testified that her fall and injury was caused by a sudden lurch or jerk of the street car, after it had slowed down for a stop at the street crossing, and while she was proceeding to get off, there was no testimony that such jerk'was unusual or extraordinary.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 695, 696; Dec. Dig. § 282.]
    4. Carriers (§ 318) — Injury to Passenger-Negligence — Jerking op Car — Evidence.
    Testimony of plaintiff, in an action for injury to a passenger on a street car, that her fall and injury was caused by a sudden lurch or jerk- of the car after it had slowed down for a stop at the street crossing and while she was proceeding to get off, is sufficient, prima facie, without testimony that such jerk was unusual or extraordinary, to support a finding of negligence of defendant, especially in the absence of any evidence from it that such a jerk is an ordinary incident to the proper operation of a street car under the same circumstances.
    [Ed. Note. — For other cases, see Carriers, Cent Dig. §§ 1270, 1307-1314; Dec. Dig. §
    5. Trial (§ 260) — Refusal op Instructions —Instructions Already Given.
    Refusal of a requested instruction may not be complained of; it being substantially covered by the main charge, to which no objection was made.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.]
    6. Appeal and Error (§ 1067) — Harmless Error — Refusal op Instructions.
    The general charge having submitted the one issue of negligence, of suddenly jerking the car, and expressly stated that unless that issue was established verdict should be for defendant, refusal of a requested instruction, that another alleged act of negligence was not ground for recovery, is harmless.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4229; Dec. Dig. § 1067.]
    7. Appeal and Error (§ 1067) — Harmless Error — Refusal of Instructions.
    The general charge being practically as favorable to d&fendant on the issue of contributory negligence as its requested instruction thereon, it may not complain of refusal’of the latter.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4229; Dec. Dig. § 1067.]
    8. Damages (§ 130) — Personal Injury — Inadequate Verdict.
    Under the evidence in an action for injury, to a woman 63 years, old, consisting of a simple fracture of the radial bone in the left arm, just above the wrist, held a verdict of $100 was not grossly inadequate.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 357-367, 370; Dec. Dig. § 130.]
    Appeal from District Court, Johnson County; O. L. Lockett, Judge.
    Action by H. P. Barnes and. wife against the Cleburne Street Railway Company. From a judgment for plaintiffs, defendant appeals; plaintiffs making cross-assignments.
    Affirmed.
    J. M. Moore, of Cleburne, for appellant. Odell & Johnson and S. O. Padelford, all of Cleburne, for appellees.

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

   DUNKLIN, J.

This is the second appeal ip this case, the opinion on the former appeal being reported in 152 S. W. 236. The suit was by Mrs. Elizabeth Barnes and husband against the Cleburne Street Railway Company for damages for personal injuries sustained by Mrs. Barnes as a result of a fall in one of defendant’s cars while she was in tbe act of leaving tbe car. A judgment was rendered in favor of tbe plaintiffs upon tbe allegation of negligence on tbe part of tbe defendant in causing tbe car upon wbicb Mrs. Barnes was a passenger at tbe time to suddenly lurch or jerk in such a manner as to cause her to fall and break her left arm near tbe wrist. Tbe defendant has appealed.

Several assignments of error are predicated upon the refusal of tbe court to give instructions requested by tbe defendant, and numerous objections are made by tbe appellees to the sufficiency of those assignments, predicated principally upon act of tbe Legislature of 1913. See General Laws 1913, p. 113. By that act some of tbe articles of tbe former statutes relative to tbe submission of a case to tbe. jury by the trial court were amended so as to read as follows:

“Art. 1971. The charge shall be in writing and signed by the judge; after the evidence has been concluded the charge shall be submitted to the respective parties or their attorneys for inspection and a reasonable time given them in which to examine it and present objections thereto, which objections shall in every instance be presented to the court before the charge is read to the jury, and all objections not so made and presented shall be considered as waived; before the argument is begun, the judge shall read his charge, and all special charges given by Mm to the jury in the precise words in which they were written; he shall not charge or comment on the weight of evidence; he shall so frame the charge as to distinctly separate the questions of law from the questions of fact; he shall decide on and instruct the.jury as to the law arising on the facts, and shall submit all controverted questions of fact only to the decision of the jury.”
“Art. 1973. Either party may present to the judge, in writing, such instructions as he desires to be given to the jury; and the judge may give such instructions, or a part thereof, or he may refuse to give them, as he may see proper, and he shall read to the jury such of them as he may give; provided, such instructions shall be prepared and presented to the court and submitted to opposing counsel for examination and objection within a reasonable time after the charge is given to the parties or their attorneys for examination.
“Art. 1974. AVhen the instructions asked, or some of them, are refused, the judge shall note distinctly which of them he has given and which he refused, and shall subscribe his name thereto, and such instructions shall be filed with the clerk and shall constitute a part of the record of the cause, subject to revision for error.”
“Art. 2061. The ruling of the court in the giving, refusing or qualifying of instructions to the jury shall be regarded as approved unless excepted to as provided for in the foregoing articles.”

A bill of exception appears in this record to tbe action of tbe court in refusing to give to tbe jury tbe eight several requested instructions, which bill was duly approved by the trial judge. Special instruction No. 1 reads:

“The defendant street railway company now here comes and requests the court to instruct the jury to return a verdict in its favor because tbe evidence of plaintiff is insufficient to sustain a recovery.”

And in the bill of exceptions it is also stated that the reason for requesting the peremptory instruction No. 1 was that the evidence of plaintiffs was insufficient to sustain a recovery ; but no reason is assigned for tbe exception to tbe rulings of tbe court in refusing the other seven special instructions requested, the bill containing tbe simple statement that “to the action of the court in refusing those instructions the defendant company then and there excepted.” By some of those requested instructions the issue of whether or not the sudden jerk of the ear was an act of negligence was presented as a disputed issue of fact, and the other special instructions were upon the issue of contributory negligence on the part of Mrs. Barnes. But all those special charges were requested after the court had refused defendant’s special charge No. 1. The court gave a general charge submitting the plaintiff’s cause upon the issue of negligence mentioned and also upon defendant’s pleas of contributory negligence, all said issues being submitted as disputed issues, and the record fails to show that any objection was urged by the defendant to any portion of that charge. If, as provided by tbe amended statutes, a charge given without objection must be regarded as approved, it follows logically, we think, that parties who thus approve the charge are in the same situation as if that charge had been requested by them. And according to a well-establisbed rule of decisions in force before tbe enactment of that statute, if a party requests two different instructions upon the same issue and one of them is given, he cannot complain of the refusal of the other. The evident purpose of the act referred to was to require the trial judge to be given the full benefit of any objections to his charge to the jury that might be urged upon appeal, to the end that the charge as finally submitted to the jury may be so framed as to avoid such objections.

In Clarendon Land Investment Agency Co. v. McClelland, 86 Tex. 179, 23 S. W. 576, 1100, 22 L. R. A. 105, cited by appellant, it was held that, notwithstanding the rules requiring assignments of error to distinctly specify the grounds of error relied on, an assignment addressed to a charge given by the court in general terms, without stating any reason why the ruling is claimed to be erroneous, was sufficient provided the reasons urged to sustain the assignment are stated in propositions submitted in support of the assignment. The rule so announced seems to have been uniformly followed since the rendition of that decision. Clearly, no reason is perceived why an objection to a charge made during the trial of the case should not be as specific as if made to the same charge in an appellate court. It would be unreasonable to suppose that the objections to the charge given presented to the trial judge should be less definite and specific than when made in an appellate court.

By its first assignment appellant insists that its requested instruction No. 1 should have been given for the reason that, while Mrs. Barnes testified that the fall and injury was caused by a sudden lurch or jerk of üae car after it slowed down for a stop at the street crossing and while she was in the act of proceeding to get off: the car, there was no testimony to show that such jerk was unusual or extraordinary, and therefore that her testimony, which was the only testimony upon that issue, was insufficient to sustain a finding that such jerk was negligence. No evidence was introduced by defendant to show that such a jerk of the car as that described by Mrs. Barnes is usual and not an extraordinary- movement in the operation of a street car under the same circumstances. It is unnecessary for us to determine whether or not the failure to object to the charge given was a waiver of appellant’s right to complain of the refusal of this instruction, since the assignment must be overruled for two other reasons: First, the objection presented to the trial judge to his action in refusing the instruction was too general, in that it failed to point out wherein the testimony was insufficient, as is done here by the assignment presented to this court; second, under the decisions of our higher courts, we are of the opinion that the evidence of Mrs. Barnes, as to the sudden jerk of the car under the circumstances stated which caused her to fall, was sufficient, prima -facie, to support a finding of negligence on the part of the defendant company, especially in the absence of any testimony from the defendant that such a jerk is an ordinary incident to the proper operation of a street car under the same conditions. See Choate v. S. A. & A. P. Ry. Co., 90 Tex. 82, 36 S. W. 247, 37 S. W. 319; Tex. Cent. R. R. Co. v. Stuart, 1 Tex. Civ. App. 642, 20 S. W. 962, in which writ of error was refused by our Supreme Court.

The remaining special instructions requested by appellant, same being numbered from 2 to 8, inclusive, were sufficient on their face to show the reasons why appellant sought to have them given, and perhaps it was not necessary that any special objection should have been presented to the trial judge to his refusal to give those' instructions, as such objections necessarily would have been but a repetition of the reasons apparent upon the face of the instructions.

By charges Nos. 2 and 5 appellant sought to have the jury told that, unless it has been shown by the testimony that the jerk which caused Mrs. Barnes to fall was of unusual violence and that the same constituted negligence on the part of the defendant, plaintiff could not recover. Substantially the same instruction was given in the court’s main charge and to which no objection was urged by appellant. One of the grounds of negligence was that the defendant company ignored Mrs. Barnes’ request to stop the car at the street upon which she desired to alight and carried her a block further than she intended to go. On the former appeal we held that this was not the proximate cause of the injury and would not he grounds for a recovery. By special charges Nos. 3, 4, 7, and 8, the defendant sought to have the jury instructed in accordance with that ruling. The assignments addressed to the refusal of those special instructions present no reversible error, since the court in its charge submitted the one issue of negligence of suddenly jerking the car and expressly told the jury that, unless that issue of negligence was established by a preponderance of the evidence, a verdict should be returned in favor of the defendant.

Special instruction No. 6 presented the issue of contributory negligence, and it must be overruled for the reason that the trial court gave an instruction upon that issue which, in the absence of any objection thereto, must be considered as having been approved by appellant, and for the further reason that it seems to be practically as favorable to appellant as the requested instruction. The foregoing disposes of all assignments of error presented by appellant.

By cross-assignments appellees insist that the sum of $100 awarded to them as damages was grossly inadequate and that for that reason the judgment should be reversed and the cause remanded for another trial. The evidence shows that Mrs. Barnes was 63 years old at the time of her injury, and that the injury consisted of a simple fracture of the radial bone in her left arm just above the wrist; the radial bone being one of two bones in that portion of the arm. Testimony introduced by plaintiffs would have warranted a finding of damages in a greater sum. The physician who treated Mrs. Barnes for the injury testified that when he first visited her he found her arm and wrist considerably swollen; that by the use of bandages and splints he reduced the fracture and swelling; that he visited her two or three times; that he left the first bandage on the arm about ten days and replaced it with another bandage which remained thereon about two weeks. He further testified that Mrs. Barnes came to his office once or twice after he treated her, one of which visits was three or four months prior to the trial, which according to other evidence was more than two years after the injury. He further testified, in part, as follows:

“On a younger person ordinarily a fracture of this kind would not leave much effect; of course, in a person of Mrs. Barnes’ age it might leave a little stiffness. It will take time to tell that; I can’t say as to whether it will do it or not. I haven’t seen her in some time.”

In the light of this and other testimony, which it is not necessary to set out, the assignment now tinder discussion must be overruled.

The judgment is affirmed.

SPEER, J., not sitting.


text:
    TEXAS CENT. R. CO. v. MALLARD.
    (No. 7998.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    June 13, 1914.)
    Appeal and Error (§ 263) — Reservation of Grounds of Review — Exceptions.
    Under Rev. St. 1911, art. 2061, as amended by Acts 33d Leg. c. 69, providing that the ruling of the court in giving, refusing, or qualifying instructions shall be regarded as approved unless excepted to, the refusal of an. instruction cannot be reviewed where there was no exception to the charge given or to the refusal of the one requested.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1616-1623, 1525-1532; Dec. Dig. § 263.]
    Appeal' from Jones County Court.
    Action by R. B. Mallard against the Texas Central Railroad Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    See, also, 158 S. W. 1183.
    Spell & Sanford and W. W. Ñaman, all of Waco, for appellant. Brooks & Brooks, of Anson, for appellee.

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

   DUNKLIN, J.

The Texas Central Railroad Company has appealed from a judgment rendered in the county court in favor of R. B. Mallard for $175 as damages for the death of a mare and colt which were run over by one of appellant’s trains. The suit was predicated upon allegations of negligence on the part of the railroad company in operating its train at a great rate of speed at the time of the accident and in failing to keep a lookout to discover the presence of the animals upon the track in time to avoid killing them.

The case was tried before a jury and but one assignment of error is presented. That assignment is to the refusal of the court to give an instruction requested by appellant. The date of the trial was October 20, 1913. The record contains no bill of exceptions showing that appellant upon the trial objected to the charge given to the jury by the court, or that it made any objection to the refusal of the requested instruction referred to above. By Act of the 33d Legislature (see Gen. Laws 1913, p. 113), which became effective July 1, 1913, certain articles' of the statute were amended, one of which articles, No. 20.61, being amended so as to read as follows:

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

The record showing no exception to the charge that was given and none to the refusal of the requested instruction, such actions of the court must be regarded as approved by appellant, and, if approved, it is in no position to complain here. The assignment of error is, accordingly, overruled and the judgment affirmed. See Cleburne Street Ry. Co. v. Barnes, 168 S. W. 991, No. 7995, by this court and not yet officially published.

Affirmed.

SPEER, J., not sitting.


author: LEVY, J.

text:
    HENRY et al. v. LAND, Sheriff et al.
    (No. 1261.)
    (Court of Civil Appeals of Texas. Texarkana.
    May 21, 1914.)
    Husband and Wife (§ 259*) — Community Property — Liability for Husband’s Debts — Separate Property of Wife.
    Where a husband, after becoming insolvent, suffered judgment on a community debt, and thereafter purchased property to the price of which the wife contributed money earned by her by keeping boarders, such money, as against the debt, was community funds, notwithstanding an antecedent agreement between her and her husband that such earnings should constitute her separate property.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 911; Dec. Dig. § 259.*]
    Appeal from District Court, Smith County; R. W. Simpson, Judge.
    Suit by Mrs. G. E. Henry and others against Joe Land and others. Judgment for defendants, and complainants appeal.
    Affirmed.
    Price & Beaird, of Tyler, for appellants. Lasseter & Mcllwaine, of Tyler, for appellees.
   LEVY, J.

This is a suit by Mrs. Henry, joined by her husband pro forma, for injunction to restrain the sale under writ of execution of 16 acres of land. The petition alleged that the property was purchased with the separate funds'of Mrs. Henry. The defendants answered by denial, and specially averred that the property was the community property of the plaintiffs, and subject to execution. The case was tried by the court without a jury, and judgment was entered dissolving the temporary injunction and for the defendants.

The court made the following findings of fact and conclusions of law:

“I find that plaintiffs Walter Connaily & Co., a private corporation, created under the laws of the state of Texas, did on the 7th day of October, 1912, recover a judgment in the county court of Smith county, Tex., against the plaintiff L. A. Henry for the sum of $231.05, together with interest and costs of court; that thereafter, on March 12, 1913, said Connaily & Co. caused an execution to be issued on said judgment and placed same in the hands of the defendant Joe Land, Sheriff, and that said sheriff levied said execution on the 16 acres of land in controversy, and advertised the same to satisfy said judgment in favor of the said Gon-nally & Go. 1 find that the 16 acres of land in controversy were purchased on or about the 16th day of November, 1912; that at the time it was purchased title was taken in the name of the plaintiff Mrs. George Ella Henry. I find that the plaintiffs Mrs. George Ella Henry and L. A. Henry were husband and wife, having been married and living together as such husband and wife for nearly SO years; that at the time said land was purchased the plaintiff L. A. Henry handled the transaction and paid in cash on said land the sum of $58, and assumed the payment of certain vendor’s lien notes outstanding against the property, the total purchase price being about the sum of $1,000; that subsequently, about seven months prior to the time this case was tried, the plaintiff paid one of the notes and interest amounting to about $250, and that about three or four months before this case was tried the plaintiff paid another one of the notes amounting to about $250, including interest; that part of the money with which the plaintiff L. A. Henry purchased, the land and paid the notes was money that his wife, George Ella Henry, made keeping boarders; that as much as $250 or $300 of the amount so paid was from funds so made by her keeping boarders. The exact amount was unknown to either Mr. or Mrs. Henry. I find that some 10 or 12 years prior to the date said land was purchased that the plaintiff had an agreement by which his wife, George Ella Henry, should keep boarders, and that the proceeds from same be her separate property. I further find that at the time the land in question was purchased, and for some years prior thereto, the plaintiff L. A. Henry was insolvent; that he had no property subject to execution, and owed money to the extent of $6,000; and that there were unsatisfied judgments against him in Smith and other counties in the state of Texas. I also find that some 2 or 3 years prior to the date the land in question was purchased the plaintiff Mrs. George Ella Henry sold an interest in a piece of land which she owned for which she received $137.50, which money was turned over by her to her husband, the plaintiff L. A. Henry. X find the 16 acres of land to be worth about $1,200.
.“Conclusions of Law.
“The land in question, having been acquired during marriage, is presumed in law to be community property, and the burden is on the spouse claiming such land as separate property to show that the separate fund of such spouse went into the purchase of the same. The husband, while in an insolvent condition, cannot give to the wife proceeds of the community and thereby defeat the right of a creditor of the community. Property partly purchased with the separate property of either husband or wife is subject to the debt of a creditor of the community to the extent that the community fund went into the purchase of the property. I therefore find: First, that all the land in controversy was subject to the debt of the execution creditor; and, second, that if all the land was not subject to the execution of Connally & Go., the community interest of Henry and wife in the land was sufficient to more than satisfy the amount of Connally & Go.’s judgment.”

The evidence supports the findings made by the court, and they are sustained.

Opinion.

The court finds that the property levied on under the writ of execution is of the value of $1,200, and that as much as $250 or $300 of the purchase money that has been paid on the land Vas earned by the personal labor of the wife by keeping boarders. As these particular facts found by the court are undoubtedly supported by the evidence, it becomes only necessary to decide, in order to sustain the judgment denying the remedy of injunction, whether or not, in the light of the evidence in the record, such money was community property, as ruled by the trial court. The execution creditor had the legal right to have seized and sold under writ of execution the community interest of the appellants in the land, which would be to the value in the proportion of whatever community funds went into the purchase price of the land. The appellants contend that the money earned by the wife in keeping boarders should be held in the evidence, as a matter of law, the separate property of the wife, because it was a gift by the husband to the wife. To support the contention of a gift by the husband to the wife of the sum mentioned as paid on the land, the appellant relies on an agreement made between the husband and wife in 1901, some 11 years before the purchase of the land in suit. It appears from the evidence that in 1901 the wife expressed a desire to keep boarders, and the husband agreed with her that all her earnings should be her own separate funds. In this connection it appears, though, that at the time of the purchase of the land in suit the husband was insolvent, and owed debts and had unsatisfied judgments against him. The ap-pellees’ judgment was existing at the date of the purchase of the. land, and it was a community debt created by the husband. The court does not find that the particular sum of money mentioned as paid on the land was earned by the wife and reduced to her possession before the insolvency of the husband, or before the accrual of appellees’ debt, and, looking to the record, it fails to show that the wife had saved up and had in her possession any money earned in keeping boarders, either before the insolvency of the husband or prior to the accrual of appellees’ debt. But the evidence warrants the inference, as involved in the court’s findings, that the sum of money mentioned by the court as being paid on the land was earned by the wife and reduced to possession each month after the appellees’ debt accrued and judgment was obtained. The sum of money mentioned was paid by appellants, according to the evidence, on the outstanding purchase-money notes for the land in 7 months and 4 months, respectively before this suit was tried in October, 1913, which was' some time after appellees’ judgment was obtained. Therefore, if the wife earned and reduced to her possession the $250 or $300 which was paid on the land after the date that appel-lees’ debt became a charge against the community, as must be said, then, as held by the trial court, such earnings legally were, as against appellees’ debt, community funds and could not at the time, in the facts, be given to the wife as separate property of the wife. The agreement between the husband and wife could not, in the facts, as against appel-lees’ debt, be given a greater effect, in view of the statute defining community property, than to give the wife the separate right to her earnings reduced to her possession before the accrual of appellees’ debt. See Cone v. Belcher, 57 Tex. Civ. App. 493, 124 S. W. 149.

The assignments complaining of the findings of fact and conclusions of law are overruled, and the judgment will be affirmed.