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    MISSOURI, K. & T. RY. CO. OF TEXAS v. PACE.
    (No. 8308.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Feb. 19, 1916.
    Rehearing Denied March 18, 1916.)
    1. Commerce <&wkey;33 — Railroads — “Interstate Commerce” — Injuries in Interstate Commerce.
    A shipment of coal billed to a point in another state, from which, although without reloading or unloading, it was then billed to a point within such state, was not interstate as to the second shipment.
    [Ed. Note. — For other cases, see Commerce, Cent. Dig. §§ 26, 81; Dec. Dig. <&wkey;33.
    For other definitions, see Words and Phrases, First and Second Series, Interstate Commerce.]
    2. Commerce <&wkey;27 — Railroads—Injuries to Servant — “Interstate Commerce.”
    The mere fact that it does not appear whether cars were unloaded and reloaded within the state, or that the goods were in the same ears at a point without the state, is not determinative of whether the shipment was interstate, and where at the time of shipment a destination within the state only was contemplated the state statutes control the railroad’s liability for injury to a servant engaged in such shipment.
    [Ed. Note. — For other cases, see Commerce, Cent. Dig. § 25; Dec. Dig. &wkey;>27.]
    3. BIaster and Servant <&wkey;204(l) — Injuries to Servant — Deeenses — Assumption oe Risk — Common-Daw Rule.
    The common-law defense of assumed risk still obtains, except as limited by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 6645.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 544; Dec. Dig. <&wkey;> 204(1).]
    4. Master and Servant &wkey;»295(l) — Injuries to Servant — Deeenses — Assumption oe Risk.
    Where the defense of assumption of risk is expressly limited under certain conditions by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 6645, an instruction requested by defendant on the issue of assumption of risk, which failed to negative those conditions, is properly refused.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1168, 1169, 1179; Dec. Dig. <&wkey;295(l).]
    5. Negligence &wkey;>l/41(6) — Reduction oe Compensation.
    In a sex'vant’s action for injuries arising out of and in the course of his employment, defended on the ground of contributory negligence, the issue of the amount to which his compensation should be reduced by reason of such contributory negligence, must be submitted, no standard for determining whether the compensation allowed is excessive being otherwise possible.
    [Ed. Note. — Eor other cases, see Negligence, Cent. Dig. § 387; Dec. Dig. <&wkey;14l(6).]
    6. Appeal and Error <®=>934(2) — Scope op Review — Presumptions.
    Every reasonable presumption must be indulged in favor of the judgment rendered, and a special verdict should be liberally construed in order to sustain it.
    [Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. <&wkey;>934(2).]
    7. Trial <&wkey;352(l) — Special Verdict — Sufficiency.
    A special verdict must directly, fairly, and fully submit to the jury material issues and be sufficiently certain to stand as a final decision of the special matters with which it deals.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 849; Dec. Dig. &wkey;>352(l).]
    8. Negligence <&wkey;142 — Injuries to Servant —Amount oe Award.
    A special verdict in a servant’s action for injuries, defended on the ground of contributory negligence, awarding him $17,500 where the demand was $50,000, was too indefinite to stand, since it could not be determined in what amount his contributory negligence reduced the verdict if at all.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 400-403; Dec. Dig. <§=>142.]
    9. Master and Servant <&wkey;291(3) — Injuries to Servant — Actions — Instructions — Pleadings — Sueeiciency.
    An allegation that the master negligently furnished the servant with an engine out of repair as to its sand pipe, will support an instruction that it was the master’s duty to exercise ordinary care to furnish'an ordinarily safe engine and to have it inspected and repaired, especially where the specific duty was by later instruction specifically defined.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 1136; Dec. Dig. <&wkey; 291(3).]
    10. Master and Servant <&wkey;270(15) — Injuries to Servant — Actions—Evidence—Admissibility.
    In an engineer’s action for injuries received when he attempted to replace a sand pipe with his foot while the engine was in motion, it is not error to permit him to testify that such was the custom since it might reasonably be presumed that the general custom was acquiesced in by the master.
    [Ed. Note. — For other cases, see Master and Servant. Cent.' Dig. § 925; Dec. Dig. &wkey;> 270(15).] __
    11. Master and Servant <&wkey; 135 — Injuries to Servant — Actions—Defenses—Custom.
    The master, in order to avoid the charge of negligence, cannot rely upon failure of others in similar circumstances to perform a duty, the violation of which is the subject of complaint.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 271, 281, 293; Dee. Dig. <5&wkey;135.j
    12. Master and Servant <&wkey;127 — Injuries to Servant — Liability—Negligence.
    A railway company is not guilty of negligence per se for failure to take precautions which other railways observed in keeping'their engines in repair.
    [Ed. Note. — For other cases, see Master and Servant, Cent Dig. § 252; Dec. Dig. &wkey;>127.}
    13. Evidence <&wkey;539 — Expert Witness — Who are Expert Witnesses.
    Where an injured engineer testified to an experience with engines covering more than, 35 years, it is not error to permit him to testify that he did not believe a sand pipe could be displaced with a blow of the foot, since in so testifying he might be regarded as an expert.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2349-2352; Dec. Dig. &wkey;539.]
    Appeal from District Court, Tarrant County ; J. W. Swayne, Judge.
    Action by C. L. Pace against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    Thompson & Barwise, A. C. Wood, and G. W. Wharton, all of Ft. Worth, 'for appellant. D. W. Odell, T. J. Powell, and Gaines B. Turner, all of Ft. Worth, for appellee.
   BUCK, J.

Suit was instituted in the Seventeenth district court of Tarrant county, Tex., by C. L. Pace against the Missouri, Kansas & Texas Railway Company of Texas for damages for personal injuries sustained. Plaintiff alleged that on the 24th day of February, 1913, he was an employé of defendant railway company in the capacity of locomotive engineer, and as such was operating one of appellant’s engines attached to a string of cars which were to be carried south from Ft. Worth on appellant’s line. It was further, alleged that as part of the equipment of said engine there was attached a box of sand with an iron pipe extending from said sand box to a point immediately above the rail, so that the operator of such engine, by opening a valve in said pipe, could scatter sand along said rail and thereby assist in the movement of the engine. It was alleged that the sand pipe was out of order, in that it was loose and carelessly adjusted, and did not deposit the sand on the rail, but on the ground some 4 or 5 inches outside the rail; that when the plaintiff had taken his position on the engine in question and turned on the sand, he discovered the defect, and that, while the engine was slowly starting, he dismounted from the engine to examine the sand pipe in order to determine whether or not it would be necessary to stop the engine and send it to the shop for repairs; that while said engine was in very slow motion, plaintiff, for the purpose of determining the condition of said sand pipe, placed his foot gently against the tópe, assuming that it was reasonably securely adjusted, as same should have been, and as was usual and customary for it to be, and that in so doing his leg was caught under the wheels and across the rail in front of said moving engine, thereby crushing his leg and making it necessary to amputate it about 9 inches below the knee.

Plaintiff alleged that it was negligence on the part of defendant to have the sand pipe in the condition it was, and that same contributed directly and proximately to the accident and injuries complained of; and fur-iner alleged that it was no part of plaintiff’s duty to inspect said engine or its appliances, and that he did not know that said sand pipe was defective and-out of repair at the time he took charge of the engine, but that he supposed that it was reasonably tight, and, at the time of placing his foot against it, supposed that it had been forced out of its proper position by some external force, as frequently occurs in the operation of the engine, and that said sand pipe would oppose considerable resistance to the pressure of his foot thereon, and that while testing it, as above set out, he was acting in a careful and prudent manner, and in the usual and customary manner used by engineers in such matters.

Plaintiff further alleged that he was an experienced and competent engineer and was then earning, and capable of earning, from $200 to $250 per month at his said occupation; and that by reason of the injuries received, he had become wholly incapacitated from following his said occupation; that his capacity to labor and earn money had been very greatly diminished and almost destroyed; that he had been thereby rendered a hopeless cripple for life and had suffered, and would continue to suffer, much physical pain and mental anguish. He sued for $50,000 damages.

Defendant answered, denying negligence in any of the respects alleged; pleaded contributory negligence on the part of plaintiff, and, further, that at the time of the injury it was engaged in handling and moving interstate commerce, and invoking the federal statutes pertaining thereto; and further pleaded assumed risk.

Plaintiff denied that the defendant and plaintiff at the time of the injury were engaged in interstate commerce, and denied that plaintiff was guilty of contributory negligence or that he assumed the risk incident to the use of the engine with the defective sand pipe aforesaid.

The cause was submitted to the jury on eight special issues upon which the jury found:

(1) That the sand pipe, at the time of the accident, was loose and unadjusted, and unfastened in or near the socket where it should be attached to the sand box.

(2) That the defendant was guilty of negligence in turning the engine over to the plaintiff, for his use as an engineer, in the | condition in which it was at the time of the injury.

(3) That the negligence of the defendant was the proximate cause of the injury suffered by plaintiff.

(4) That the plaintiff was guilty of contributory negligence in placing his foot upon or against, or kicking, the sand pipe at the time and under the circumstances related.

(5) That the plaintiff was injured, substantially, as pleaded.

(6) That the plaintiff will continue to suffer pain and mental anguish as a result of the injury.

(7) That plaintiff’s capacity to labor and earn money has been diminished as a result of his injury.

(8) That $17,500 was a reasonable, fair, and just compensation to him for suffering, loss of time up to the time of the trial, and for diminished capacity to labor and earn money in the future.

Upon this verdict the court entered judgment for plaintiff in the sum of $17,500, and defendant appeals.

Further pleadings and instructions given and refused by the court will be noted as may be necessary in the course of this opinion.

The first question which we will consider, as raised in appellant’s first assignment of error, is: Was the defendant at the time of the injury engaged in interstate commerce? The evidence shows that at the time of the injury the engine was pulling a train composed mostly of coal cars, with some loaded box cars next to the caboose. It is as to these coal cars that the insistence is made that the interstate character of the service was determined. The coal had been mined and purchased by the defendant at points near McAlester, Okl., and had been billed to Denison, Tex., and from Denison had been routed to the Bellemead Yards, some 3 miles north of Waco, Tex. W. E. Florentine, witness for defendant, testified:

That he was car distributor for the defendant railway company, working under the superintendent of transportation, O. O. Smith; that the coal was brought in from Oklahoma to Deni-son for the use of the company at Smithville, Waco, Ft. Worth, and other points ; that the greater part of it was used for engines on its freight and passenger trains, a little being used for stationary engines .and some at passenger stations for heating, and some at water tanks for pumping; that coal for engine purposes is placed in coal chutes and the engines are loaded from the chutes; that during February, 1913, the defendant railway company handled through passenger trains through Denison going north, containing passenger coaches, baggage cars, and sleepers, originating at points like Houston and San Antonio; that the division point between the Missouri, Kansas & Texas Railway Company, and the Missouri, Kansas & Texas Railway Company of Texas is Red river, the first-named road operating through Oklahoma and north, and the second lying entirely within Texas; that freight cars coming from the south and going north of Denison were received and some of them were unloaded and reloaded at Denison and some went right through ; that in February, 1913, it was a practice to handle interstate business through Deni-son, both into and out of the state of Texas; that one of the cars in question was billed from McAlester, account of Adamson, to Denison, February 21, 1913, loaded with mine run coal, and consigned to the Missouri, Kansas & Texas Railway Company of Texas; that this waybill brings it to Denison; that another car was billed “Denison, account Ray Yards, to Smith-ville, February 23d; that is, Smithville, Texas. Ray Yards is 3% or 4 miles out of Denison. It is the place freight trains are made up. It shows Denison made this bill for Ray Yards because there is no agent there. No. 3 is B & O 38662 billed North McAlester, account of Adam-son, Okl., February 22, 1913, a car of coal for the Katy. This means that North McAlester made the bill because there is no agent at Adamson. The coal, however, was loaded at Adamson, Okl. Adamson is about 13 miles from McAlester on a branch line. No. 4 covers the same car. * * * billed out of Denison, account of Ray Yards, February 23, to Bellemead. * * * I should judge neither of these cars were unloaded at Denison, from the billing, but can’t swear they were not.”

Further examination of this witness and of other witnesses disclosed that the ears of coal out of Oklahoma were billed to Den-ison; that some of it was used at Denison in supplying trains and for other purposes, and other cars were from there forwarded under new bills of lading to various points on defendant’s lines of railway in the state; that in some instances the coal was forwarded to Texas points in the same cars in which it had been shipped from. Oklahoma points, and in other cases the coal was unloaded at Denison, put in chutes, and from the chutes loaded into other cars to be shipped to Texas points.

We think the evidence fully sustained the conclusion that at the time of the shipment from the Oklahoma point of origin there was no other definite point of destination in the mind of the shipper except Denison, and that the further disposition of such shipments was left to be determined after the shipments reached Denison, and depended upon the demand for coal, either at Denison, or at other points in Texas. We are of the opinion that, under this state of facts, the shipment of the cars of coal in the train pulled by the engine of which the appellee was in charge at the time of the injury was not impressed with an interstate character, but constituted an intrastate shipment.

The case of G., C. & S. F. Ry. Co. v. Texas, 204 U. S. 403, 27 Sup. Ct. 360, 51 L. Ed. 540, seems to be directly in point. In that case, suit was brought by the state in the district court of Tarrant county, Tex., to recover a, penalty for alleged extortion in a charge for the transportation of a carload of com fromi Texarkana to Goldthwaite, Tex. It appeared from the findings of the trial court, Associate Justice Dunklin being then the presiding judge of the trial court, that the Texas & Pacific Railway Company executed a bill of lading, by which it acknowledged the receipt from the Samuel Hardin Grain Company at Texarkana, Tex., of one car of sacked corn, consigned to shippers, with orders to deliver to Say-lor & Burnett, at Goldthwaite, Tex. This car of corn was transported by the Texas & Pacific Railway Company to Ft. Worth, there delivered to the Gulf, Colorado & Santa FS Railway Company, and by it transported to Goldthwaite. Upon its arrival at Goldthwaite, Saylor & Burnett tendered the charges prescribed by the state railroad commission, which the agent declined to accept, and demanded and collected a larger sum. Upon this action by the agent of the railway company, the state brought the suit, alleging extortion as aforesaid. It appeared that the Samuel Hardin Grain Company at Kansas City, Mo., offered to sell to Saylor & Burnett at Goldthwaite, Tex., the corn at an agreed price; that the I-Iardin Grain Company contracted with the Harroun Commission Company of Kansas City, for the delivery at Texarkana to the Hardin Grain Company of two cars of corn of the prescribed kind; that previously to this the Harroun Commission Company had contracted for the purchase of two cars of corn to be delivered! at Texarkana, and with these two cars it expected to fill, and did fill, the order of the Hardin Grain Company. These cars originated at Hudson, S. D. The contention was made by the state of Texas that the shipment from Texarkana to Goldthwaite was an intrastate shipment, and the claim made by the railway company was that, because of the fact that the shipment had originated in South Dakota, it was an interstate shipment. From a judgment in favor of the state, the cause was appealed to this court, and, in an opinion by Chief Justice Conner (32 Tex. Civ. App. 1, 73 S. W. 429), the judgment was affirmed. A writ of error having been granted by the Supreme Court of Texas, later, in an opinion by Chief Justice Gaines (97 Tex. 274, 78 S. W. 495), this court was sustained. The cause having been carried to the United States Supreme Court, the judgment of the Texas courts was upheld, 204 U. S. 403, 27 Sup. Ct. 360, 51 L. Ed. 540. Justice Brewer, in delivering the opinion .of the court, says:

“The single question in the case is whether, as between Texarkana and Goldthwaite, this was an interstate shipment. If so, the regulations of the state railroad commission do not control, and the court erred in enforcing the penalty. It, however, it was a purely local shipment, the judgment below was right and should be sustained. * * *
“The corn was carried from Texarkana, Tex., to Goldthwaite, Tex., upon a bill of lading which, upon its face, showed only a local transportation. It is, however, contended by the railway company that this local transportation was a continuation of a shipment from Hudson; S. D., to Texarkana, Tex.; that the place from which the corn started was Hudson, S. D„ and the place at which the transportation ended was Goldthwaite, Tex.; that such transportation was interstate commerce, and that its interstate character was not affected by the various changes of title or issues of bills of lading intermediate its departure from Hudson and its arrival at Goldthwaite.
“It is undoubtedly true that the character of a shipment, whether local or interstate, is not changed by a transfer of title during the transportation. But whether it be one or the other may depend on the contract of shipment.. The rights and obligations of carriers and shippers are reciprocal. The first contract of shipment in this case was from Hudson to Texarkana. During that transportation a contract was made at Kansas City for the sale of the corn, but thát did not affect the character of the shipment from Hudson to Texarkana. It was an interstate shipment after the contract of sale as well as before. In other words, the transportation which was contracted for, and which was not changed by any act of the parties, was transportation of the corn from Hudson to Texarkana; that is, an interstate shipment. The control over goods in process of transportation, which may be repeatedly changed by sales, is one thing, the transportation is another thing, and follows the contract of shipment, until that is changed by the agreement of owner and carrier. Neither the Harroun nor the Hardin Company changed or offered to change the contract of shipment, or the place of delivery. The Hardin Company accepted the contract of shipment theretofore made and purchased the corn to be delivered at Tex-arkana ; that is, on the completion of the existing contract. When the Hardin Company accepted the corn at Texarkana the transportation contracted for ended. The carrier was under no obligation to carry it further. ‘It transferred the corn, in obedience to the demands of the owner, to the Texas & Pacific Railway Company, to be delivered by it, under its contract with such owner. Whatever obligations may rest upon the carrier at the terminus of its transportation to deliver to some further car-riel’, in obedience to the instructions of the owner, it is acting, not as carrier, but simply as a forwarder. * * * Whatever may have been the thought or purpose of the Hardin Company in respect to the further disposition of the corn, was a matter immaterial so far as the completed transportation was concerned.
“In this respect there is no difference between an interstate passenger and an interstate transportation. If Hardin, for instance, had purchased at Hudson a ticket for interstate carriage to Texarkana, intending all the while after he reached Texarkana to go on to Goldthwaite, he would not be entitled, on his arrival at Texar-kana, to a new ticket from Texarkana to Gold-thwaite at the proportionate fraction of the rate prescribed by the Interstate Commerce Commission for carriage from Hudson to Goldthwaite."

The above decision was cited with approval by our state Supreme Court in the case of Texas & Pacific Ry. Co. v. Taylor, 103 Tex. 367, 126 S. W. 1117, 1200, in which it was held that where property was shipped by rail from one Texas station to another on the Mexican border, and there delivered to the shipper, the contract was intrastate, not international, and was governed by the Texas statute, although the shipper intended to, and did on receiving it, at this destination, reship over another line to a point in Mexico.

In Coley v. K. C. So. Ry., 43 Tex. Civ. App. 488, 95 S. W. 96, it was held that where a railroad engaged in putting down new rails on its road shipped rails from one state to another, and the cars in the shipments' when they reached the latter point were held until the rails were needed as the work progressed, and then forwarded at different times and to different points along the road, said cars, after they left the first point of destination within the state, were not used in interstate traffic. In many respects the last-cited case is very similar to the one under consideration, and notably, in that the railway company was the consignor and th'e consignee both, making the shipment to its own order. It had the rails shipped from Colorado and consigned to it at Mena, Ark. When they reached the latter point, the cars were not unloaded, but were put in the yards and held there until the rails were needed as th'e work progressed, when, as before stated, the cars were forwarded at different times and to different points along the road.

In G., H. & S. A. Ry. v. Wood-Hagenbarth Cattle Co., 105 Tex. 178, 146 S. W. 538, the Supreme Court, in an opinion by present Chief Justice Phillips, illuminates this question by the use of the following language:

• “As to whether the movement of the cattle from Valentine to El Paso was an interstate or intrastate shipment must be determined by the following questions: What was the ultimate destination of the shipment at the time it was made? Though the ultimate destination may have been without the state, was there any break or interruption in the journey by any delivery of the cattle by the carrier to the consignee at El Paso?
“If at the time the shipment originated its final destination was without the state, and it moved to such destination in a continuous and uninterrupted journey, unaccompanied by any delivery by the carrier to the consignee within the state, it was clearly an interstate shipment under the well-established rules of this court upon this subject. On the other hand, if there was a delivery of the cattle by the carrier to the consignee within the state, it was an intrastate shipment, notwithstanding it may have been the intention of the shipper at the time the shipment was made that it should be transported to a point without the state as its ultimate destination.”

By the test hereinabove given by the Supreme Court, we think that the shipment in th'e instant case is easily distinguishable from those in a number of cases cited by appellant, in which it was held that the shipments were interstate or international in character. For instance, in T. & N. O. Ry. v. Sabine Tram Co., 227 U. S. 111, 33 Sup. Ct. 229, 57 L. Ed. 442, the United States Supreme Court held, in an opinion by Justice McKenna, that a shipment of lumber destined by the purchaser for export, made by th'e seller under a local bill of lading from an interior point in Texas to a Texas Gulf port, at which the lumber was unloaded without delay by the purchaser’s order into slips or docks, in reach of ship’s tackle, and was then loaded into chartered ships, by which it was carried to foreign ports — such shipment not being an isolated one, but typical of many others — constitutes foreign commerce. In this last-cited case, Justice McKenna cites G., C. & S. F. Ry. v. State of Texas, supra, and without in any way disturbing the holding in that case, distinguishes the Sabine Tram Co. Case from it, and further says:

“The facts in the case at bar are different. The lumber was ordered, manufactured and shipped for export. And we say ‘shipped,’ for we regard it of no consequence that the Sabine Company had no concern or connection with it after it reached Sabine. ' Its relation to the shipment was a perfectly natural one and did not change the relation of the Powell Company to it, and make the lumber other than lumber purchased at Ruliff, and started from there in transportation to a foreign destination. The findings are explicit and circumstantial as to this. And the shipment was not an isolated one but typical of many others, which constituted a commerce amounting in the year 1905 to 14,667,670 feet-of lumber, and in the year 1906, 39,554,000 feet. Nor was there a break, in the sense of the interstate commerce law and the cited cases, in the continuity of the transportation of the lumber to foreign countries by the delay and its transhipment at Sabine.”

We do not think that because in the instant case the evidence does not disclose positively whether the coal was in the same cars at Ft. Worth as those in which' it was shipped from Oklahoma points, or whether the cars had been unloaded and reloaded at Denison, can be in any way determinative of the issue involved., It is evident that there was no fixed destination in the mind of the shipper at the time of the shipment for these cars except Denison, but that the subsequent disposition and movement of the coal was to be determined after its arrival at Denison. Therefore we conclude that at the time of the injury plaintiff and defendant were not engaged in interstate commerce; and that in this respect the federal statutes have no controlling effect upon the plaintiff’s cause of action, but that the same will be governed by the state statutes. Hence we overrule appellant’s first, second, third, and fourth assignments, which, in various forms, present this contention.

The special issue contained in defendant’s requested charge No. 22, which was refused by the court and the refusal of which is assigned as error, reads:

“Did the plaintiff know, or must necessarily have known in the ordinary discharge of his duties, that said sand pipe was out of adjustment and in a defective condition, and of the danger incident to attempting to move said pipe with his foot, with such knowledge, while said engine was in motion?”

In its answer the defendant specially pleaded that:

“Defendant knew of the condition of said sand pipe, or by the exercise of ordinary care could have known it, and also knew of the damages incident to attempting to move the same, and yet with such knowledge he continued in the employment, and he attempted to move said sand pipe with his foot which he knew to be dangerous, and for that reason he assumed all the risks incident to such defective condition and of the manner in which he attempted to handle and move the same, and by reason of his said knowledge and assumption of the risk he is not entitled to recover against this defendant.”

■ By article 6645, 4 Vemon’s Sayles’ Texas Civil Statutes, it is provided that the defense of assumed risk in a suit against a railway company for the death or personal injury of one of its employes, shall not be available in the following cases:

“First. Where such employé had an opportunity before being injured or killed to inform the employer, or a superior intrusted by the employer with the authority to remedy or cause to be remedied the defect, and does notify, or cause to be notified, the employer, or superior thereof,, within a reasonable time: Provided, it shall not be necessary to give such information where the employer, of such superior thereof, already knows of the defect.
“Second. Where a' person of ordinary care would have continued in the service with the knowledge of the defect and danger, and in such case it shall not be necessary that the servant or employé give notice of the defect as provided in subdivision 1 of this article.”

Except as so limited by said statute, the common-law defense of assumed risk still obtains. It will be noted that in defendant’s plea of assumed risk the exception contained in the second subdivision of the statute was expressly negatived. It thus appears that defendant not only tendered the issue whether or not the case came within the exception, but assumed the burden of showing that it did not. And in the special issue requested that question was omitted; neither has appellant cited any evidence to show that the case did not come within the statutory exceptions noted. In view of this condition of the record and as the judgment is to be reversed on another assignment, we deem it unnecessary to discuss the question of whether or not, in the absence of evidence showing that the case came within one or the other of the statutory exceptions noted, the assignment now under discussion should be sustained.

In the opinion of the majority, what has been said with reference to the failure to submit special issue No. 22, is applicable to the objection urged to the refusal to give special charge No. 4, involving the question of assumed risk on the part of plaintiff in attempting to push the sand pipe back in line with his foot while the engine was in motion, and instructing the jury that if they found that plaintiff could easily have stopped his engine, and that if he had stopped it and had then attempted to adjust said sand pipe with his foot, the accident would not have occurred, they would find for the defendant. This charge, not including the special exceptions contained in article 6645 supra, did not give the plaintiff the benefit thereof.

The writer does not concur fully with the disposition of these two assignments, and were not the judgment of this court to be determined by other questions hereinafter to be discussed, he would feel impelled to embody in a dissenting opinion his views with reference thereto; but, as it is, he will content himself with this expression of his dissent from the views of the majority above expressed.

In the seventh assignment, complaint is made of the submission of special issue No. 8a, as follows:

“What sum of money, which if paid now, would be a reasonable, fair, and just compensation to him for mental and physical pain, if any, resulting and such as may result from the injuries received by him, if any, and also the reasonable value of his services for the time lost, by reason of his injury, up to this time, if any, and also for his diminished capacity to labor and earn money in the future, if any.
“In answering this question, should you, in response to the issue of contributory negligence, have found the plaintiff was guilty of contributory negligence, then you will take such contributory negligence into consideration in estimating said sum, and diminish the amount of the damages found by you in proportion to the amount of negligence which you attribute to the plaintiff, as compared to the combined negligence of both the plaintiff and the defendant. If you have found him not to have been guilty of contributory negligence, you will not diminish his damages in the amount you find as indicated above.”

Defendant presented a special charge, which included the submission of the following issue:

“How much should plaintiff’s damages be diminished as a result of his own contributory negligence?”

To the failure of the court to submit this charge and issue error is assigned under the eighth specification. We are of the opinion that the court should have submitted the issues so that the jury would have been instructed, either to find separately the amount of damages the plaintiff had sustained, and the amount to which they should be reduced because of plaintiff’s contributory negligence, if they should find contributory negligence, or the proportion or relation which plaintiffs contributory negligence bore to the combined negligence of defendant and plaintiff. By this means only could the trial court, or can this court, determine the amount of damages that the jury believed the plaintiff had suffered, independent of the question of contributory negligence, and the proportionate relation that plaintiff’s contributory negligence bore to the combined negligence of plaintiff and defendant.

Under the particular facts of this case, this court is entitled to know, as was the trial court, what was the basis of the finding of the jury as to the sum allowed plaintiff as damages, so that the question of the sufficiency or exeessiveness thereof may be intelligently determined. From the verdict no one can tell what sum the jury found plaintiff would have been entitled to if no question of contributory negligence had been involved, nor how much such sum was reduced, if at all, by reason of the contributory negligence found. Neither can it be told what proportion of the combined negligence involved was held by the jury chargeable to the plaintiff. It is true every reasonable presumption should be entertained in support of the judgment rendered, and that a special verdict should be liberally construed so that it will stand, rather than fall. Dodd v. Gaines, 82 Tex. 429, 18 S. W. 618. But in this case, both by objection to the form of the issue as submitted, and by two special charges and issues requested, was the matter brought to the attention of the court.

A special verdict must directly, fairly, and fully submit to the jury the material issues in the case, and should be sufficiently certain to stand as a final decision of the special matters with which it deals. Kirby v. P. & G. R. Co., 39 Tex. Civ. App. 252, 88 S. W. 281; Dunlap v. Canal & Mill Co., 43 Tex. Civ. App. 269, 95 S. W., 43; State v. Hanner, 143 N. C. 632, 57 S. E. 154, 24 L. R. A. (N. S.) 46.

The difficulty that may be presented to a court, whether trial or appellate, in determining whether the verdict and the judgment thereon is excessive, confronts us here, because in one of its assignments the appellant charges the verdict and judgment is excessive. We are unable from the record to say whether the jury found large damages to plaintiff, say in the sum sued for, to wit, $50,000, and reduced it to the sum recited, $17,500, because of the great contributory negligence of plaintiff; or whether they found the sum to which plaintiff would have been entitled, irrespective of contributory negligence, was only slightly in excess of the special verdict rendered, say $18,000, but further found that plaintiff’s negligence was slight as compared with defendant’s, and therefore plaintiff’s damages should be reduced only in a negligible manner.

We are of the opinion that the contention of appellant, as presented in the seventh, eighth, and ninth assignments, should be sustained. Darden v. Mathews, 22 Tex. 320; Mussina v. Shepherd, 44 Tex. 623; G., H. & S. A. Ry. v. Botts, 22 Tex. Civ. App. 609, 55 S. W. 514; Waco Cement Stone Works v. Smith, 162 S. W. 1158; Railway v. McClellan, 173 S. W. 258; Du Bose v. Battle, 34 S. W. 148.

Article 6649, Vernon’s Sayles’ Texas Civil Statutes, provides that in the event of contributory negligence in this kind of a case, “the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employe.” We have no way of determining whether this statutory requirement was complied with or not. The proportion that this contributory negligence bore to the combined negligence was one of the vital issues in the ease, and in our opinion should have been submitted, when properly requested, in some succinct and definite form for a finding by the jury, and the failure to so submit it constitutes, as we think, reversible error.

The questions presented in assignments 10 to 15, inclusive, attacking the findings oí the jury (1) because the same, as claimed, are vague, obscure, etc., and (2) because the verdict is excessive, are disposed of by what we have said with reference to assignments 7 to 9 above. Nor do we find any error in the charge of the court, as urged in the sixteenth specification, to the effect that it was tlie duty of defendant to exercise ordinary care to furnish plaintiff an ordinarily safe machine or engine with which to perform the services required of him, etc., as well as to exercise o'rdinary care to have the same inspected and repaired when out of repair. The contention is made that this charge authorized the jury to find acts of negligence on the part of the defendant not pleaded. Plaintiff’s petition alleged that the engine was out of repair in respect to the condition of the sand pipe, and that defendant was guilty of negligence in permitting such condition to occur and continue, and in not having the engine inspected. This charge only purported to define the general duty of the defendant with reference to furnishing equipment and appliances. Later in the charge, the court restricted, hy the submission of the special issues la and 2a, the right of recovery to the specific act of negligence charged. We do not think the holding in S. A. & A. P. Ry. v. Weigers, 22 Tex. Civ. App. 344, 54 S. W. 910, cited by appellant, is applicable to the question herein involved. In the cited case plaintiff relied on the alleged negligent act of defendant’s foreman in attempting to bolt certain timbers overhead at the time plaintiff was engaged underneath in repairing a bridge; said foreman’s acts being alleged to have caused the embankment to cave. It was evident from the pleadings that defendant’s alleged negligence was not predicated upon a want of care in failing to furnish plaintiff a reasonably safe place in which to work. I-Ience the holding.'

We do not find any error in permitting plaintiff to testify that “from his experience and observation and knowledge of machinery, locomotive engines, etc., it was the custom and practice, when a sand pipe was out of line so as to throw the sand away from the rail, for an engineer to put his foot against it and push it around,” as complained of in the seventeenth assignment. It is true that a defendant railroad, in order to avoid the charge of negligence, may not rely upon the fact that certain other railroads do not perform the duty, the violation of which is the subject of the complaint in plaintiff’s petition, as held in Railway v. Evansich, 61 Tex. 3. Nor can a railway company be held guilty of negligence per se for failure to take certain precautions which certain other railways may observe, as announced in Railway v. Nelson, 20 Tex. Civ. App. 536, 49 S. W. 710. Yet in order to affect the degree of plaintiff’s contributory negligence, if any, we think it was admissible to show that in performing the act of pushing the sand pipe with his foot, plaintiff was following the custom and practice of engineers generally. Railway v, Puente, 30 Tex. Civ. App. 246, 70 S. W. 362 (writ denied) ; Railway v. Hays, 40 Tex. Civ. App. 162, 89 S. W. 29;. Railway v. Schilling, 32 Tex. Civ. App. 417, 75 S. W. 64. In Railway v. Puente, supra, justice Neill says:

“Generally, the question of negligence is of such a character that it may be presumed that jurors are competent to decide the question, upon ascertaining the immediate facts, upon being informed as to the law by the court. But in cases where the question involved is of such a character that the jury will be aided by being advised of the practice of others under like circumstances, such evidence is competent, at least where the custom is a general or universal one” —citing Gillette Ind. & Col. Ev. § 128; Railway v. Reed, 88 Tex. 439, 31 S. W. 1058; Railway v. Nelson, 20 Tex. Civ. App. 536, 49 S. W. 710.

If the manner of remedying, or attempting to remedy, the defect followed by plaintiff was in accord with the usual custom of engineers under similar circumstances, as pleaded and testified to by plaintiff, such a custom might reasonably be presumed to have been acquiesced in, if not adopted, by railroads generally, including defendant, as held in the Hays Case, supra.

Without further enlarging this opinion, already too long, we will content ourselves with stating’ that we do not find any error in permitting plaintiff to testify that he did not believe it was possible for a man to have loosened with his foot the sand pipe at the point where it was joined onto the cylinder. In so stating, he was testifying as an expert, with an experience with engines covering a period of more than 35 years.

For the errors mentioned above, it is the order and judgment of this court that the judgment of the trial court be reversed, and the cause remanded.
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source: Caselaw Access Project

author: DUNKLIN, J. BUCK, J.,

license: Public Domain

text:
    ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. KERR.
    (No. 8311.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Jan. 29, 1916.
    Rehearing Denied March 4, 1916.)
    1. Appeal and Error <@=^1064(1) — Trial <&wkey; 229 — Carriage op Live Stock — Instructions — Repetition.
    In a suit for damages to a shipment of cattle, an instruction repeating all the issues of negligence which had already been submitted in the instructions gave undue emphasis to those issues, harmful to the defendant.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. § 4219; Dec. Dig. <&wkey;> 1064(1); Trial, Cent. Dig. §§ 475, 513, 525, 553; Dec. Dig. &wkey;229.]
    2. Evidence <&wkey;474(19) — Opinion Evidence —'Value of Live Stock — Knowledge of Witness.
    In a suit for damages to a shipment of live stock, where a witness for plaintiff had testified that he did not know the market value of such cattle at destination, his estimate that, if the cattle had reached destination in good condition, they would have been worth on the market from $1.50 to $2.50 a head more than in the condition when they arrived, was a mere guess, and inadmissible.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2218; Dec. Dig. <&wkey;474(19).]

      3. Tbial <&wkey;251(8) — Instructions—Applicability to Pleading and Issues.
    In a suit for damages to a shipment of cattle, where defendant made a general denial of its negligence, it was entitled to an instruction that if any of the alleged injuries to the cattle were due to the inherent nature or proper vice of the animals, and not caused by any alleged negligence on its part, no damages could be allowed for such injury.
    [Ed. Note. — Eor other cases, see Trial, Cent. Dig. § 590; Dec. Dig. &wkey;251(3).]
    4. Carriers <&wkey;227(3) — Injury to Live Sto ck — Pleadin g.
    In such suit, it was not necessary for defendant to specially plead the defense of injury from the inherent propensities of the animals, but proof thereof would be admissible under its general denial of the negligence charged against it, unless it could be said that the evidence showed some inherent vice in the particular cattle not common to cattle generally.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 956; Dec. Dig. &wkey;227(3).]
    5. Trial <&wkey;253(l) — Injury to Live Stock-Instructions — Ignoring Issues.
    In a suit for damages to a shipment of cattle based on allegations of negligence in several respects, an instruction submitting the converse of the theories on which plaintiff was to recover, omitting one of the issues of negligence, was erroneous.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 613, 614; Dec. Dig. &wkey;253(l).]
    6. Appeal and Error <i&wkey;216(l) — Assignment op Error — Requests por Instructions.
    In such case, defendant could not be heard to complain of the omission in the appellate court, in the absence of a requested instruction thereon.
    [Ed. Note. — For other eases, see Appeal and Error, Dec. Dig. &wkey;»216 (1); Trial, Gent. Dig. § 637.]
    7. Trial <&wkey;252(7) — Instructions — Conformity to Evidence.
    In a suit for damages to a shipment of cattle, where there was no evidence of a want of care in loading the cattle, an instruction that a want of care would be negligence was without support in the evidence.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 002; Dec. Dig. &wkey;252(7).]
    8. Appeal and Error &wkey;>1058(1) — Harmless Error — Cumulative Evidence.
    In a suit for damages to a shipment of cattle, the refusal to admit a record made by a witness who was live stock inspector at the market and who inspected the cattle on arrival, purporting to show the condition of the cattle and, of the car, was not error, where the witness testified to the same facts from actual memory.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4195, 4200; Dee. Dig. <&wkey;> 1058(1).]
    Buck, .T., dissenting in part.
    Appeal from Tarrant County Court; Chas. T. Prewitt, Judge.
    Suit by Edgar Kerr against the St. Louis Southwestern Railway Company of Texas. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    Thompson & Barwise and George Thompson, Jr., all of Ft. Worth, for appellant. Templeton & Milam and C. A. Wright, all of Ft. Worth, for appellee.
   DUNKLIN, J.

Edgar Kerr instituted this suit against the St. Louis Southwestern Railway Company of Texas to recover damages for alleged injuries to a shipment of cattle over the defendant’s railway from the town of Commerce, to the city of Ft. Worth, and from a judgment in plaintiff’s favor the defendant has appealed.

The suit was based upon allegations of negligence in the following respects: (1) In failing to provide suitable pens at Commerce for holding the stock until they could be shipped; (2) that the cattle were held in such pens awaiting shipment for an unreasonable length of time; (3) that the cars in which the cattle were shipped were overloaded; and that, after starting them from Commerce to Ft. Worth, they were roughly ' handled and unreasonably delayed. By reason of all of which alleged negligence plaintiff claimed that the cattle were crippled and bruised, suffered a shrinkage in flesh, and became stale in appearance, and thereby their market value was greatly depreciated.

The first four paragraphs of the court’s charge were as follows:

“(1) ‘Ordinary care,’ as that term is used in this charge, means such care as a person of ordinary caution or prudence would use under the same or similar circumstances. A failure to use such care constitutes negligence.
“(2) It was the duty of the defendant to exercise ordinary care to keep and maintain its stock pens at Commerce in reasonably good condition for the handling of such stock as were tendered to it for shipment at such station, and a failure so to do would constitute negligence.
“(3) It was also the duty of the defendant to exercise ordinary care to run and operate its freight trains for the transportation of freight over its lines of railway at regular times, and to operate same for the transportation of such freight as was tendered to it for shipment with ordinary care and dispatch, and a failure so to do would constitute negligence.
“(4) It was also the duty of the defendant, upon receiving plaintiff’s cattle in its shipping pens at Commerce, to exercise ordinary care to load and transport said cattle at and from said station to their destination at Ft. Worth within a reasonable time; and it was further the duty of said defendant to so transport said cattle, and to handle them while in its possession with ordinary care and dispatch, and to avoid injuring them unnecessarily. A failure to exercise such care in loading handling and transporting said cattle would be negligence.”

In the fifth paragraph of the charge, the same issues of negligence already submitted in the second, third, and fourth paragraphs were again submitted, .in connection with an instruction that if any one or more of such allegations of negligence was or were-sustained by proof, and if the jury should find that the same-was the proximate cause of the alleged injuries to the cattle, if any, and their market value was thereby depreciated, then a verdict should be returned in favor of the plaintiff for the amount of such depreciation. We are of the opinion that, in thus repeating in the fifth paragraph all of the issues of negligence which had already been submitted, in the preceding paragraphs, undue emphasis was given to those issues which was probably harmful to the appellant, as insisted in one of its assignments of error.

Marvin Thompson, a witness for the plaintiff, over the defendant’s objection was permitted to testify that, if the cattle had reached Et.- Worth in good condition they would have been worth on the market from $1.50 to $2.50 per head more than they were worth in the condition they were in when they reached their destination. This witness had already testified that he did not know the market values of such cattle in Et. Worth, and, based upon that testimony, the defendant objected to the estimate already mentioned, for the reason that he had not properly qualified to give such estimate. Under the circumstances, the estimate of damages so given by the witness necessarily involved a mere gue^s, and the objection urged to it should have been sustained. A different question would have been presented if the witness had estimated the depreciation on a percentage basis, rather than in specified sums. H. B. & T. Ry. v. Vogel, 156 S. W. 261.

We are of the opinion, further, that the court should have given an instruction to the jury, in effect, that if they should find that any of the alleged injuries to the cattle were due to the inherent nature or proper vice of the animals, and not caused by any alleged negligence on the part of the defendant, then for such injuries no damages could be allowed. Nor do we think that it was necessary for the defendant to specially plead that defense, unless it could be said that the evidence showed some inherent vice in these particular cattle which was not common to cattle generally. Certainly, proof upon that issue would be admissible under the general denial of the negligence that was charged against the defendant, and, such being true, the defendant would be entitled to an instruction presenting such facts affirmatively in the court’s charge. Wells Fargo Express Co. v. Benjamin (Sup.) 179 S. W. 513; F. W. & D. C. Ry. v. Berry, 170 S. W. 128.

It may be, as insisted by the appellee, that the requested instruction upon that issue was argumentative in form, and therefore properly refused; but even if that be true, the court should have given a proper instruction in the main charge presenting -that defense, in view of the exception taken to the action of the court at the time in failing so to do, and which refusal is made the basis of another assignment of error. Olds Motor Works v. Churchill, 175 S. W. 785.

We are of the opinion that by reason of the three errors noted above, considered as a whole, the judgment should be reversed, and the cause remanded, even though it could be said that any one of those errors considered alone would not be sufficient to require such reversal.

We deem it proper to notice two other criticisms made by appellant of the court’s charge, neither nor both of which would constitute reversible error, but which should be avoided upon another trial; one of which is that, in submitting the converse of the theories upon which plaintiff sought a recovery, one of the issues of negligence was omitted. Of course, defendant could not be heard to complain in this court of that omission, in the absence of a requested instruction thereon. The other criticism is to that part of the fourth paragraph of the charge wherein the jury were told, among other things, that a failure to exercise care in loading the cattle would be negligence. The complaint made of that instruction is that there was no pleading or evidence raising that issue, which contention is borne out by the record. It is not probable that, reading paragraph 4 of the charge as a whole, the jury interpreted it in the manner suggested by the criticism mentioned. But we suggest that it would be advisable to so frame the charge on another trial as to avoid that criticism.

We are of the opinion that there was no error in the court’s refusal to admit in evidence a certain record made by the witness A. J. Ankerson, live stock inspector at Ft. Worth, who inspected the plaintiff’s cattle at the time they were unloaded in Ft. Worth, such record purporting to show the condition of the cattle and of the car at that time, especially as the witness testified to the same facts from actual memory.

For the reasons noted, the judgment is reversed, and the cause remanded.

BUCK, J.,

dissenting to action of majority on fifth assignment, but concurring in the reversal of judgment on other assignments.
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author: CONNER, O. J.

text:
    MUTUAL FILM CORP. v. MORRIS & DANIEL.
    (No. 8303.)

    (Court of Civil Appeals of Texas. Ft. Worth.
    Jan. 15, 1916.
    On Motion for Rehearing, Feb. 26, 1916.)
    1. Contracts <&wkey;10(4) — Unilateral Contract.
    The contract is unilateral, and so terminable at the will of either party, where, though defendant agreed to furnish films so long as plaintiffs continued in business, plaintiffs did not agree to take them for such, or any, definite period.
    [E!d. Note. — For other cases, see Contracts, Cent. Dig. § 37; Dec. Dig. &wkey;10(4).]
    On Motion for Rehearing.
    2. Statutes <&wkey;276(l) — Repeal—Eeeect.
    Act March 3, 1913 (Acts 33d. Leg. c. 127) § 4, amending Rev. St. 1911, art. 1902 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1902), to provide that a fact alleged in the petition, not being denied by the answer, shall be taken as confessed, being remedial, is not available on appeal, where repealed after the trial.
    [Ed. Note. — For other cases, see Statutes, Cent. Dig. § 371; Dec. Dig. &wkey;276(l)J

      3. Pleading <&wkey;>412 — Matters of Complaint Not Denied — Request to Court.
    That plaintiffs may avail of Act March 3, 1913, § 4, amending Rev. iSt. 1911, art. 1902, to provide that a fact alleged in the petition, not being denied, by the answer,, shall be taken as confessed, the court’s attention must be called to the fact, and .request be made that the allegation be taken as confessed.
    [Ed. Note. — For other eases, see Pleading, Cent. Dig. §§ 1387-1394; Dee. Dig. &wkey;412.j
    4. Contracts <&wkey;28(3) — Unilateral Contract-Evidence.
    Evidence, in an action for breach of defendant’s agreement to furnish films to plaintiffs so long as they remained in business, held to fail to show that plaintiffs agreed to take and pay for them for such period, so as to prevent the contract being unilateral.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 133-140, 1820, 1821; Dec. Dig. &wkey;28(3).]
    6. Appeal and Error &wkey;>1175(5) — Reversal —Rendering or Remanding.
    Where though the necessity of proof by plaintiffs of the material allegation of the complaint, of agreement on their part, could not well have escaped their attention, and they offered the testimony of the only persons by whom it seems the necessary proof could be made, and they testified, apparently, fully, without making the proof, and plaintiffs in their motion for rehearing set forth no fact or circumstance tending to show that full opportunity was not afforded for a full development of the case, the provision of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1626, that, when judgment is reversed, the court shall render such judgment as the court below should have rendered, and not the exception, that when it is necessary that some matter of fact be ascertained the cause shall be remanded for a new trial, is applicable.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4579; Dec. Dig. <5&wkey;1175(5).]
    6. Appeal and Error <&wkey;768 —Briefs — Statement — Failure to Contest.
    By express provision of Court of Civil Appeals rule 41 (142 S. W. xiv), whatever of the; statements in appellant’s brief is not contested will be considered as acquiesced in.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3103; Dec. Dig. <&wkey;768.]
    Appeal from District Court, Taylor County; Thomas L. Blanton, Judge.
    Action by Morris & Daniel against the Mutual Film Corporation. Judgment for plaintiffs, and defendant appeals.
    Reversed and rendered.
    Smith, Robertson & Robertson, of Dallas, for appellant. Eugene De Bogory, of Abilene and W. L. Morris, of Albany, for appellees.

      Application £or writ o£ error pending in Supreme Court.

   CONNER, O. J.

This appeal is from a judgment for $1,750 in appellees’ favor as damages for breach of an alleged contract made with the appellant corporation.

Pretermitting as immaterial a discussion of a number of assignments presented, we go at once to the vital question in the case. The appellees alleged that they were engaged in exhibiting moving picture films in the city of Abilene; that upon the date stated the appellant corporation agreed to furnish appellees with moving picture films delivered in Abilene weekly at a rental of $28. 50 per week, “so long as the plaintiffs continued in the picture show business in Abilene.’’ it was alleged that the appellees agreed to take and use the films at the price and upon the terms stated “as long as the plaintiffs continued in the picture show business in Abilene.” The evidence possibly supports the finding of the jury to the effect that the appellant corporation agreed to furnish films as alleged, but, as presented, we find the evidence wholly wanting to support the allegation of an agreement on appellees’ part to take the films at the price and for the period specified. The contract, therefore, is so plainly unilateral, and terminable at the will of either party that it seems only necessary to cite some of the authorities. See H. & T. C. Ry. Co. v. Mitchell, 38 Tex. 86; Kraft Holmes & Co. v. Sims, 1 White & W. Civ. Cas. Ct. App. § 404; Richardson v. Hardwicke. 106 U. S. 252, 1 Sup. Ct. 213, 27 L. Ed. 145; Dorsey v. Packwood, 12 How (U. S.) 126, 13 L. Ed. 921; Oil & Pipe Line Co. v. Teel, 95 Tex. 591, 68 S. W. 979; Tyler Ice Co. v. Coupland, 44 Tex. Civ. App. 383, 99 S. W. 133; Campbell v. Lambert, 36 La. Ann. 35, 51 Am. Rep. 1; E. L. & R. R. R. R. Co. v. Scott, 72 Tex. 70, 10 S. W. 99, 13 Am. St. Rep. 758; A. Santaella & Co. v. Otto F. Lange Co., 155 Fed. 719, 84 C. C. A. 145; American Cotton Oil Co. v. Kirk, 68 Fed. 791, 15 C. C. A. 540; Fowler Utilities Co. v. Gray, 167 Ind. 1, 79 N. E. 897, 7 L. R. A. (N. S.) 726, 120 Am. St. Rep. 344; Bradshaw v. Terrell Foundry & Mach. Co., 104 S. W. 509.

The contract, under the circumstances proven being terminable at the will of either party, was unenforceable, and appellant’s failure to continue furnishing films, as charged in the appellees’ petition, furnishes no legal ground for redress. We, accordingly, sustain appellant’s assignments attacking the action of the court in submitting the issue, the verdict of the jury thereon, and the judgment in appellees’ favor.

The conclusions so announced require of us a reversal of the judgment and a rendition of the judgment in appellant’s favor, and it is accordingly so ordered.

On Motion for Rehearing.

Appellees urgently insist that we erred in reversing the judgment herein because of a want of evidence, for the reason that in appellant’s answer there was no special denial of plaintiffs’ allegation that appel-lees “agreed” to take and use the films, which were the subject-matter of the controversy, “at the price and upon the terms stated as long as the plaintiffs continue in the picture show business in Abilene.” And they cite section 4 of the act of the Thirty-Third Legislature, approved March 3, 1913, amending article 1902 of the Revised Statutes. (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1902). The amended article reads, in part:

“The defendant in his answer shall plead to each fact alleged in the plaintiff’s petition, and either admit or deny the same, or deny that he has any knowledge or information thereof sufficient to form a belief. And any fact not denied by the defendant or which he does not deny that he has any knowledge or information thereof sufficient to form a belief shall be taken as confessed,” etc.

It is true that in the defendant’s answer there was no specific denial of the allegation Quoted. But since the trial below the act quoted has been repealed by act approved March 22, 1915.' See General Laws 1915, p. 155. The statute above quoted, being remedial in its nature, is, in consequence of the repeal, therefore no longer available even in this court. See Etter v. Missouri Pac. Ry. Go., 2 Willson, Civ. Gas. Gt. App. § 60, and authorities therein cited. See, also, 36 Cyc. p. 1228, § G. Moreover, it has been the holding of this court, as well as of other courts, that in order to entitle a party to avail himself of the right conferred by section 4 of the act of 1913, because of a want of a verified denial of a material allegation, it is necessary that the court’s attention be called to the fact, and request be made that the allegation be taken as “confessed,” as provided in the section quoted. Ashcroft v. Stephens, 16 Tex. Civ. App. 341, 40 S. W. 1036; Railroad Co. v. Dye, 70 Fed. 24, 16 C. C. A. 604; T. & P. Ry. Co. v. Tomlinson, 169 S. W. 217. The record fails to show that appellees excepted to any part of appellant’s answer for a want of verification, or that request was made of the trial court that any part of the appellees’ petition be taken as confessed. We are of the opinion, therefore, that appellees’ first ground of error in the motion for rehearing must be overruled.

It is further insisted that we erred in rendering the judgment rather than in reversing the cause for another trial. Appellees, in support of this ground of the motion, invoke article 1626 of Vernon’s Sayles’ Texas Civil Statutes, which reads that:

“When the judgment or decree of the court below shall be reversed, the court shall proceed to render such judgment or decree as the court below should have rendered, except when it is necessary that some matter of fact be ascertained, or the damages to be assessed or the matter to be decreed is uncertain, in either of which cases the cause shall be remanded for a new trial in the court below.”

We were not unmindful of this provision of our statutes in announcing our original conclusion. But the record shows that the trial proceeded upon the appellees’ fourth amended original petition, their first supplemental petition, and a trial amendment, and upon defendant’s first amended original answer and its first and second supplemental answers. And the necessity on appellees’ part to, among other things, prove the very material allegation that they had agreed to take and pay for the films promised by the appellant corporation could not very well have escaped the attention of the parties and of the court, as. it seems to us. Upon this point it further appears that the appel-lees offered the following testimony, and none other that materially affects the issue, viz.:

Charlie Morris, one of the appellees, after having testified that the appellees had leased the film business in Abilene in October, 1913, and after having testified that he had communicated with Charles Touehon of the appellant film company, requesting a continuance of the service by shipping films to the appellees, to which Touehon consented, and after having further testified that there was “not anything said over the telephone then about how long we were to get the service; there was no agreement over the telephone about how long we were to get the service,” further testified:

“I did not talk with the Mutual people any more until in January, 1914, in regard to a contract. I then talked with Touehon, at the Mutual Film Exchange in Dallas. When I was in Dallas in January, I told Touehon that I had heard that there was a party in Abilene trying to get our service, and that is what I came to Dallas for, and to see about service for a new theater we had opened here. ‘Well,’ he says, ‘there is nobody trying to get your service, Morris,’ and he says, ‘They could not get it if they wanted it.’ He says: ‘Our business relations have been very pleasant, and we don’t do that kind of business. We don’t take service away from a man as long as he pays for it.’ I asked him about service for the Gem Theater, and he did not know where I could get service. I asked him about the Universal service. He said it was no good. We then had a conversation in the back part or the center part of the building in regard to some features we were looking over — some new advertising matter; big post cards and big photographs — and I booked some features with him. By ‘booking’ I mean contracting for it. A feature film is a special film on any special feature that is not in the regular service. It is called a feature, that might be from one to ten reels. That is a special, booking a feature is contracting for it; that is, contracting to run a feature separate from the regular program on a certain day or a certain price. We were going to run this at the Jewel Theater in Abilene. Touehon patted me on the ■back, and says, ‘You go back to Abilene and boost your business and rest easy.’ He says, ‘There is nobody going to get your service.’ Nothing else specially was said. He said he would continue shipping to Abilene just like he always had at the same price, and wanted to know if I wanted any new machine or anything for the new theater. He tried to sell me a motograph picture machine for the Gem Theater. At that time, the Gem Theater was located in Abilene. The theater that we were running at that time was located at Abilene in the Jewel Theater building. We had the Airdome then. * * * I don’t know how long I was in the office, 30 or 40 minutes. I was back there that day, and back there the next day. We were talking most of the time. That is all that I can recall that was said. We were not using any other films, at that time, than the Mutual Film. I don’t recall anything else that was said specially, except that Mr. Touehon told me there was nobody trying to get the service, and could not get it if they wanted it; that we could have it just as long as we paid for it, and as long as we was in the show business in Abilene. * * * There had not been any interruption in the service of the Mutual Film Company from the beginning, and after the conversation with Mr. Touehon that I have testified about up to May 15, 1914, the time asked about. We got films every day except Sunday. We didn’t get films on Sunday. We" got a regular program of three films a day. I received the telegram which you now show me. This telegram is directed to ‘Morris and Daniel, Abilene, Texas, Jewel Theater.’ And reads as follows: ‘Please make other arrangements for service after Saturday May sixteenth. Mutual Eilm Corp. of Texas. 9 :27 P. M.’ * * * There is another part of the conversation that I did not recall this morning, in regard to keeping the service in the Jewel Theater. Mr. Touchon said that there could not anybody get our program, and that we were to have it exclusively; that no other show in town could get it, and that we could have it as long as we paid for it, and as long as we was in the show business in Abilene, and that he would continue to deliver films to Abilene just like he had been in the past. * * * ”

L. E. Keys testified:

“My name is L. E. Keys. I live in Abilene. At one time, I lived in Dallas. While I lived in Dallas, I met Charlie Morris there at one time. I met Charlie at the Interurban Station, and we went over to some film exchange. At the film exchange, I saw this gentleman that was sitting right over there a while ago, with the light hair. I heard a conversation between he and Charlie. I don’t know that I can explain just every word that was said between them, but it was something in reference to the films that they were using. Charlie says, T hoard that you was going to take them away from me,’ or something that way. He says, ‘Oh, well, there is nothing to it that I know of, as long as you pay for them; everything has been satisfactory so far.’ He said there was nothing to what Charlie had heard. Well, they went on and talked about something else — I don’t know what all they did say — and then they got up and went in the back end of the building —of the office.”

On cross-examination lie testified:

“As to how it happened that I went over to the film place with Charlie Morris, I was going down the street and met Charlie there. * * * I could not say what the name of that Eilm Exchange was. * * * I saw Touchon there. He is the man that was sitting there. * * * No one else was with Morris at that time. I wont inside of the place; that is, on the inside of the exchange. When I first saw Touchon, he was at his desk there inside of a railing. 1 did not have any conversation with Touchon. Morris just introduced me to him, and he asked me if I was in the moving picture business, and I told him no, and I think that is all the words we said. As to how long a time Morris was talking to Touchon, I suppose we stayed there maybe 20 or 30 minutes; something like that. We were inside the railing, both of us. * * * I might have heard all of the conversation, but I was not interested in it, and I don’t know anything about it. I did not pay any particular attention to it; nothing more than I would, just being in conversation anywhere with any one else. * * * They talked there where I was something like 20 minutes, and then they got up and went in the back end of the building. I never went back there with them at all,I stayed there until he came back, and when he came back, I got up and went on off with him. * * * The portion of the conversation that I remember when we went in there was that Morris introduced me to this man, and Morris says, T heard something about you going to let somebody else have my business’ or something in regard to that. * * * He told Morris that he had not heard anything about it, and he asked Morris if that is what he came to Dallas for, or something that way. Morris had put up another show, and Morris asked him about getting films for the other show. Morris asked him where to get them, and he told Morris he 'did not know where Morris could get service. Morris asked him something about features. Now, I don’t know what there is about that. I don’t know what the features are, and when they went in the back end of the house, I never heard any more of the conversation. He told Morris that as long as he paid for them, and paid him what he owed him, he did not see why he should change, or something in regard to that. That is what Mr. Touchon said.”

Touchon, while testifying, denied that any agreement was made, but, regardless of this denial, we think the conclusion is inevitable that the evidence quoted fails to show that appellees “agreed” to take and pay for the films as they alleged. In addition to this, the want of this proof was specifically pointed out on the original hearing under appellant’s second assignment of error, excepting to the refusal of the court to give a peremptory instruction as requested, where, among other things, it was stated in appellant’s brief that:

“There was no evidence that the plaintiffs agreed to use defendant’s films in their picture show at Abilene as long as they remained in the picture show business in Abilene.”

Appellees made no answer to this assignment, and made no denial of the statement so made in appellant’s brief. And rule 41 (142 S. W. xiv), promulgated for the government of this court, expressly declares that:

“Whatever of the statements of the appellant or plaintiff in error in his brief is not contested will be considered as acquiesced in.”

In the foregoing condition of the record before us, we fail to see any necessity for remanding the cause in order “that some matter of fact be ascertained.” Appellees offered the testimony of the only persons by whom it seems the necessary proof could he made. These parties testified, apparently, fully, upon the trial, and appellees in their motion for rehearing set forth no fact or circumstance which tends to show that full opportunity was not afforded by the trial court for a full development of the case. It is apparent that other contingencies mentioned in article 1626 have no application to the present case.

We, accordingly, adhere to our original conclusions and overrule the motion for rehearing.
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author: JENKINS, J.

text:
    GERMO MFG. CO. v. COLEMAN COUNTY.
    (No. 5593.)
    (Court of Civil Appeals of Texas. Austin.
    March 1, 1916.
    Rehearing Denied April 5, 1916.)
    1. Counties <@==113(1) — Commissionees’ Coukt — Powers—Conteacts.
    The commissioners’ court has charge of the business affairs of the county, and it alone has authority to make contracts binding upon the county.
    [Ed. Note. — For other eases, see Counties, Cent. Dig. §§ 174, 176; Dec. Dig. <&wkey;113(l)J

      2. Counties ' &wkey;>113(6) — Commissioners’ Couet — Agent—Sherxee.
    Tile commissioners’ court may act through an. agent appointed by them, and a sheriff not appointed by them to purchase for the county was not their agent by virtue of his office.
    [Ed. Note. — For other cases, see Counties, Cent. Dig. §§ 174, 180; Dec. Dig. &wkey;113(6).]
    3. Counties . &wkey;124(2) — Unauthorized Act oe Agent — Commissioners’ Court — Ratification.
    A county, through the only agency by which it can act, that is, its commissioners’ court, may ratify the act of one assuming without authority to be its agent, but the sheriff’s use of disinfectants purchased by him without authority, over the protest of the court, was not a ratification; as one cannot constitute himself the agent of another against the other’s protest and then ratify his unauthorized act so as to bind such other.
    ' [Ed. Note. — For other cases, see Counties, Cent. Dig. § 185; Dec. Dig. &wkey;124(2).]
    Appeal from Coleman County Court; W. Marcus Weátherred, Judge.
    . Suit by the Germo Manufacturing Company against Coleman County. Judgment for ■defendant, and plaintiff appeals.
    Affirmed.
    J. P. Ledbetter and Woodward & Baker, all of Coleman, for appellant. Snodgrass, Dibrell & Snodgrass and Critz & Woodward, all of Coleman, for appellee.
   Findings of Fact.

JENKINS, J.

On February 25, 1912, and for some time prior and subsequent thereto, W. L. Futch was sheriff of Coleman county. On that date he gave an order to appellants to ship certain disinfectants to appellee, signing said order “W. L. Futch, Sheriff.” Disinfectants were necessary to maintain the Coleman county jail in a sanitary condition, and the disinfectants so ordered were received by the sheriff and used by him and his jailer in disinfecting the jail. The account for such disinfectants was presented to the commissioners’ court of Coleman county and disallowed, whereupon this suit was brought

On June 13, 1911, the commissioners’ court of Coleman county passed an order that no' one except said court would be permitted to purchase disinfectants for the courthouse or jail. This order was on that date entered of record in the minutes of the court, and the sheriff was informed thereof. Upon the trial hereof Futch testified that no one instructed him to buy the disinfectants, that he did so “on his own hook," and that he did not con-consider it any of the commissioners’ court’s business.

Prior to February 25, 1912,. the commissioners’ court contracted with local druggists to furnish disinfectants for the courthouse and jail, but the sheriff refused to use the same or to allow any portion thereof to be brought in the jail. Subsequent to the receipt of the disinfectants the county judge and commissioners went to the jail and told the party that they there found in charge not to use the disinfectants bought by the sheriff, but to use those bought, by the county. The sheriff refused to allow the jailer to comply with this request.

Upon the trial of this cause the county judge instructed the jury to return a verdict for the defendant. They did so, and judgment was entered accordingly, from which judgment this appeal is prosecuted.

Opinion.

The court did not err in peremptorily instructing the jury to return a verdict for appellee. The commissioners’ court have charge of the business affairs of the county, and they alone have authority to make contracts binding upon the county. Ferrier v. Knox County, 33 S. W. 896; Lumber Co. v. Van Zandt County, 77 S. W. 960; Fears v. Nacogdoches County, 71 Tex. 337, 9 S. W. 265; Brown v. Reese, 67 Tex. 318, 33 S. W. 292; Presidio County v. Clarke, 38 Tex. Civ. App. 320, 85 S. W. 475; Fayette County v. Krause, 31 Tex. Civ. App. 569, 73 S. W. 51.

In Ferrier v. Knox County, supra, the court said:

“In dealing with a county it is necessary to have an express contract with the commissioners’ court, and that court can speak only by and through its minutes and records. No action can be maintained upon any implied pr.omise upon its part to pay for anything.” Page 898, col. 1, of 33 S. W.

In Presidio County v. Clarke, supra, speaking in reference to the contract there involved, the court said:

“To be binding upon the county, it must, on its part, be made through the proper agency — the commissioners’ court.” 38 Tex. Civ. App. 320, page 476, col. 2, of 85 S. W.

The commissioners’ court may act through an agent appointed by them. Futch was not appointed by the commissioners’ court to purchase disinfectants. I-Ie was not such agent by virtue of his office.

A county, as an individual, may ratify the act of one who assumes, without authority, to be its agent. Brazoria County v. Padgitt, 160 S. W. 1170; Brazoria County v. Rothe, 168 S. W. 70; Harris County v. Campbell, 68 Tex. 22, 3 S. W. 243, 2 Am. St. Rep. 467; Gallup v. Liberty County, 57 Tex. Civ. App. 175, 122 S. W. 291; Boydston v. Rockwall County, 86 Tex. 234, 24 S. W. 272. But such ratification must be through the only agency by which the county can act, viz., its commissioners’ court. The only claim of ratification in this case was the use of the disinfectants over the protest Of the commissioners’ court. One cannot constitute himself the agent of another over the protest of the alleged principal, and then ratify his unauthorized act so as to bind such principal, by doing something over his protest, even though it may be beneficial to such alleged principal.

For the reasons stated, the judgment of the trial court is affirmed.

Affirmed.
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