author: WILLSON, G. J.

text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. SMITH.
    (No. 1365.)

    (Court of Civil Appeals of Texas. Texarkana.
    Dec. 24, 1914.
    Rehearing Denied Jan. 7, 1915.)
    1. Damages (§ 158) — Personal Injury — Pleading and Proof.
    Evidence that by his injuries plaintiff was rendered impotent is proper when the petition alleges that the accident had affected the plaintiff’s brain “and other organs,” where defendant Had made no offer to require the plaintiff to specify what other organs; since a general allegation of damage will let in evidence of such damage as naturally and necessarily results from the wrong charged.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 441-444; Dec. Dig. § 158.]
    2. Trial (§ 273) — Instructions to Jury — Objection to — Waiver.
    Under Acts 33d Leg. c. 59, § 3 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1971), objections to the charge not made before it had been read to the jury must be regarded as waived.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 6S0-682; Dec. Dig. § 273.]
    3. Master and Servant (§ 276) — Injury to Railroad Employé — Evidence.
    Evidence held to justify findings that plaintiff’s injury was caused by negligence of defendant railroad company in moving an engine against the tender under which plaintiff was at work.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 950-952, 954, 959, 970, 976; Dec. Dig. § 276.]
    4. Master and Servant (§ 217) — Injury to Servant — Assumption of Risk.
    A servant does not assume the risk of injury from negligence of the master of which he is ignorant.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 574-600; Dec. Dig. § 217.]
    5. Damages (§ 185) — Cause of Condition-Result of Accident — Evidence.
    Evidence held sufficient to show that plaintiff’s condition of health was the result of the accident complained of.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 503-508; Dec. Dig. § 185.]
    6. Damages (§ 132) — Personal Injury — Reduction as Excessive.
    Judgment for $50,000 in suit for personal injuries, though resulting in impotency, paralysis of the left side, probable shortening of life, and probable permanent disability for all work, was grossly excessive in ease of a foreman. of a railroad track gang, 32 years old, requiring a reversal unless a remittitur of the excess above $20,000 be filed.
    [Ed. Note. — For other eases, see Damages, Cent. Dig. §§ 372-385, 396; Dec. Dig. § 132.]
    Appeal from District Court, Harrison County; H. T. Lyttleton, Judge.
    Suit by C. Smith against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for $50,000, defendant appeals.
    Judgment reversed, and cause remanded, unless a remittitur of $30,000 he filed within 20 days.
    This was a suit by appellee against appellant for damages for personal injuries, in which judgment was rendered for appellee for $50,000.
    Appellee alleged and proved that on July 19, 1913, an engine and its tender belonging to appellant having become derailed, he, in the discharge of his duty as one of appellant’s employes, and in compliance with the order of one Taylor, appellant’s roadmaster, who was superintending the work necessary to be done to replace said engine and tender on the track, went under said tender to rearrange the' brake thereon, and that while he was engaged in doing so the tender so moved as to cause injury to his person. He alleged that the movement of the tender was due to negligence on the part of appellant, and then further alleged as follows:
    “Plaintiff shows that the said tender and appliances under the same caught the plaintiff and crushed him against the ground, badly injuring and bruising the plaintiff’s back, leg, and side, wrenching, bending, and curving his back and spine, and injuring and bruising his entire person, inflicting upon him many external and internal bruises and injuries, all of which are permanent in their character, and from which the plaintiff will never recover, and which have totally incapacitated the plaintiff from engaging in any work or labor of any kind or character whatever, and which will totally incapacitate the plaintiff from engaging in any work so long as he may live.
    “That the injuries have caused progressive degenerative diseases of the spinal cord to set in, and have set up a degenerative process and condition in the plaintiff’s brain and other organs, causing the plaintiff to have, among other afflictions and troubles, a partial paralysis of his left side, which plaintiff is informed and believes and here charges will be progressive in its course, and that same will totally incapacitate the plaintiff so long as he lives, and will in all reasonable probability materially shorten his life.
    “That the said injuries, among other things, have caused a degeneration of the central nervous system, to the impairment of his mental capacity to such an extent as to seriously threaten his mental condition during all of his future life.
    . “That the said plaintiff before he was injured was an able-bodied man, in good physical and mental condition, and able to earn much money, and that he is now. totally incapacitated by reason of the said injury to do or 'perform any manual labor, and that the said plaintiff will, by reason of his injuries, never be able to perform any manual labor so long as he may live; that he has suffered great mental and physical pain by reason thereof, and will continue to so suffer so long as he may live.
    “The plaintiff shows that by reason of the said injuries he has been damaged for time lost, time that he will lose in the future, decreased ability to earn money in the future, inability of the plaintiff to move about and enjoy himself in the usual way, mental and physical suffering endured in the past and that will be endured in the future in the total sum of $60,000 actual damages.”
    The answer of the defendant included a general denial and pleas of contributory negligence and assumed risk.
    As to the measure of damages in the event they found for appellee, the trial court instructed the jury as follows:
    “You are instructed that, if you should find in favor of the plaintiff, then you will allow him such a sum of money as, if paid in cash at this time, will fairly compensate him for the injuries he has sustained by reason of the time he may have lost, if any, by reason of the said injuries, if any, decreased ability to earn money in. the future, if any, by reason of the said injuries, mental and physical suffering that the plaintiff has endured, if any, and mental and physical suffering that he may endure in the future, if any, by reason of the said injuries, as a direct and proximate result thereof; and if you find that the plaintiff’s ability to move about and enjoy himself in the usual way has been injured or diminished by reason of the injuries complained of in his said petition, then you will take into consideration that fact in estimating the damages which the plaintiff may be entitled to recover.”
    The testimony was sufficient to support findings involved in the verdict; that appel-lee, without fault on his part, suffered injury to his person, that same was due to negligence on the part of appellant as charged, and that appellee had not assumed the risk of the injury inflicted upon him; and we so find.
    Schluter & Singleton, of Jefferson, Chas. C. Huff, of Dallas, and J. M. Chambers, of Ft. Worth, for appellant. S. P. Jones and Young & Robinson, all of Marshall, for ap-pellee.

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

       Writ of error pending in Supreme Court.

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

   WILLSON, G. J.

(after stating the facts as above). [1] By his own testimony and that of his wife appellee proved that, as a result of injuries he received, he was rendered impotent and incapable of sexual intercourse. 1-Iis testimony was admitted without objection, but appellant afterward moved to strike same out, on the ground that the pleadings did not authorize it. The testimony of the wife was objected to when offered, on the same ground. It is insisted that the court erred when he refused to strike out the testimony of appellee and when he overruled the objection made to that of his wife.

The allegations in the petition relied upon as a sufficient basis for the rulings made are set out in the statement above. It will be noted that appellee averred that the injuries he suffered had caused “progressive degenerative diseases of 'the spinal cord to set in” and had “set up a degenerative process and condition in the plaintiffs brain and •other organs, causing plaintiff to have, among other afflictions and troubles, a partial paralysis oí his left side,” and, further, .that the “injuries among other things have caused a degeneration of the central nervous system to the impairment of his mental capacity,” etc. No effort was made by exceptions interposed to the petition to have ap-pellee to specify the “other organs” than the brain affected, nor the “other afflictions and troubles” than the paralysis suffered, as charged, because of the “degenerative process and condition” caused by the injury to the spinal cord, nor to specify the “other things” beside impairment of his mental capacity, alleged to have been caused by the “degeneration of the central nervous system.”

The rule, as settled in this state, is:
“That a general’ allegation of damages will let in evidence of such damages as naturally and necessarily result from the wrongs charged; but, to admit proof of damages which do not necessarily result from the injury alleged, the petition must set up the particular effects claimed to have followed the injury.” Campbell v. Cook, 86 Tex. 630, 26 S. W. 486, 40 Am. St. Rep. 878.

In the application of this rule in the case cited, the Supreme Court held that allegations charging the injuries suffered by the plaintiff to be the “breaking and crushing the bones of his hip and thigh, tearing, cutting, and lacerating his flesh, bruising, wounding, and injuring him in his back, bowels, hips, legs, and other parts and members of his body,” were not sufficient as a basis for testimony that the plaintiffs “capacity to have sexual intercourse with his wife was greatly impaired.” The court said:

“There was no injury alleged to .have been inflicted upon any organ or member of the body from which ‘impairment’ would naturally, not to say necessarily, follow.”

In the application of the same rule the Supreme Court held in the later case of City of Dallas v. Jones, 93 Tex. 38, 49 S. W. 577, 53 S. W. 377, that allegations that the head, body and limbs of plaintiff’s wife “were terribly injured and bruised, whereby her brain was affected, and her spine injured and rendered diseased, and whereby she was permanently and seriously injured, and caused to suffer great pain, mentally and bodily, and her nervous system was shocked and her health destroyed, and whereby he sustained loss of services of his wife to him and her children and family, and plaintiff was compelled to incur large sums of money for medicines and doctor’s bills, and lost the comfort and services and society of his wife, who has been rendered a hopeless invalid, requiring constant service and attendance of her husband and others,” were broad enough to admit testimony that the wife “could not stand sexual connection, and that, as it caused her pain, plaintiff did not enjoy it.”

In the Jones Case, as in the Cook Case, there was no allegation of an injury to any organ or member of plaintiff’s wife’s body which one unacquainted with the relation and dependency of one part of the body on another or other parts thereof could say would either naturally or necessarily result in her incapacity to endure sexual intercourse. The practical difference between the two cases, we think, lies in the fact that in the Jones Case a physician testified that an injury to the spine, if it did not cause complete paralysis, frequently had the effect to “lower the nervous system,” and, when suffered by the wife, “would be apt to cause conjugal relations to be unpleasant to her,” and another physician testified that he thought the “sexual act would throw her. into spasms.”

If the ruling in the Jones Case was based upon that point of difference, then it ought to be regarded as justifying the ruling made by the trial court in this case, for on the trial a physician (Dr. Wheat) testified as follows:

“This condition of impotency we find in this man (appellee), in my opinion, is due to the same trouble I have recited in the other cases; that is, damage to that part of the spinal cord that controls the power of erection. When a man has erection, that is controlled by a certain part in the spinal cord, and when you damage certain parts in the cord it destroys that altogether. The power of erection is not in the spinal cord, but the control of the power of erection is there. Yes; an injury to the central nervous system of sufficient severity will cause the loss of the power of erection. Yes; impotency is one of the natural things to follow an injury of that kind.” '

Appellant insists, however, that the allegations should not be considered in the light of such testimony, and in support of its contention argues as follows:

“Suppose that a pleader, in alleging an injury to the brain, should aver ‘that the concussion totally destroyed the function of the fissure of Rolando.’ The works on anatomy and surgery teach that such an injury must with absolute certainty result in the complete paralysis of all the extremities, and to the mind of one versed in those sciences such an allegation would convey the fact of such paralysis as a natural and necessary consequence of such alleged injury. That such would be the consequences of the injury is a matter of scientific knowledge, and not of general or common knowledge, and we submit that under our rules of pleading, liberal though they be, evidence of paralysis of the extremities would not be received. The legal inference of a fact from a given one only obtains where the laws of nature, as commonly understood, make it impossible for the one fact to exist without the other.”

It seems to the writer that in the case supposed the evidence should be received as within the rule, if it was made to appear by expert testimony or otherwise that the paralysis was the “natural and necessary” result of the injury alleged. As'he understands the rule, it is the fact that a given consequence naturally and necessarily follows an injury alleged that renders testimony that that consequence followed the injury admissible, and not the court’s knowledge thereof. If the-rule means that it must be a matter of common knowledge that a given consequence-will naturally and necessarily follow an injury alleged before testimony is admissible to prove sucb consequence, then it is a useless one, for it is never necessary to prove matters of common knowledge. Railway Oo. v. Qurry, 64 Tex. 88.

We are of opinion tbe assignments complaining of tbe action of tbe court with respect to tbe testimony in question should be overruled, and we think tbe conclusion reached is supported not only by tbe Jones Case referred to, but by rulings made in Railway Co. v. McMannewitz, 70 Tex. 73, 8 S. W. 66; Railway Co. v. Mitchell, 72 Tex. 171, 10 S. W. 411; Railway Co. v. Pina, 33 Tex. Civ. App. 680, 77 S. W. 979; Railway Co. v. McCutcbeon, 33 Tex. Civ. App. 557, 77 S. W. 232; Railway Co. v. Edling, 18 Tex. Civ. App. 171, 45 S. W. 406; and others which could be cited.

Tbe instruction of tbe jury as to tbe measure of damages if they found in appellee’s favor is set out in tbe statement above. It will be noted that tbe jury were told, if they found appellee’s “ability to move about and enjoy himself in tbe usual way” bad been “injured or diminished by reason of tbe injuries complained of in his petition,” they should take that into consideration in estimating his damages. It is insisted: (1) That the part of tbe instruction just referred to was upon tbe weight of tbe evidence in “singling out and calling the attention of tbe jury specially to tbe issue of diminished ability to move about,” etc.; (2) that damages for sucb diminished ability were not recoverable apart from lost time, diminished ability to earn money, and mental and physical suffering; and (3) that the effect of said part of tbe instruction was to authorize a double recovery for mental suffering endured by appellee. In bis petition appellee alleged as one of tbe elements of tbe damages be had suffered bis inability to “move about and enjoy himself in tbe usual way.” No exception was interposed to tbe allegation. It is not necessary to inquire whether tbe objections or any of them are tenable or not; for they were not presented to tbe trial court before tbe charge was read to the jury, as required by tbe Acts 1913, p. 113, § 3 (Vernon’s Sayles’ Stat. art. 1971), and therefore must be regarded as having been waived. Railway Co. v. Wadsack, 166 S. W. 42; Railway Co. v. Brown, 168 S. W. 866.

Appellant thought tbe testimony was not sufficient to support a finding that it bad been guilty of negligence as charged, and requested tbe trial court to so instruct tbe jury. Tbe refusal of this request is made the basis of tbe fifth assignment. Tbe negligence alleged was tbe act of appellant in causing an engine under which appellee was working “to be moved, or negligently permitting tbe same to be moved, causing tbe same to move sucb a distance as to catch tbe plaintiff and bruise, injure, and crush bis body.” It appeared from tbe testimony that appellee, then about 32 years of age, was employed by appellant as foreman of a gang of men doing track work. He claimed to have been injured late on tbe morning of July 19, 1913. He and tbe men under him had been at work from about 6 o’clock of the afternoon of July 18th trying to get a derailed locomotive and its tender back on tbe track. In compliance with tbe order of one Taylor, appellant’s roadmaster, who was present directing tbe work, appellee was under tbe tender, endeavoring to fix tbe brake rigging thereof, when, as all the witnesses agree, tbe engine and tender moved east — some of them said a distance of 2 or 3 inches, while others said a distance of 12 or 18 inches. Appellee’s testimony as to bis position at .that time and as to the effect on him of tbe movement of tbe tender was as follows:

“After Mr. Taylor told me to go under there I went under to fix tbe brake rigging, and in doing that I lay on my back under the car, and had one foot propped up against the car with my feet towards Greenville and my head towards Shreveport, and had my head and shoulders back against the rail and blocks. The pin I was trying to get out of the brake rigging was about three feet from me there and 1 had to reach for it. While laying there my right foot was up on the tank bolster. I wanted to get the slack out of those rods, so I could get the pin out. I was in that position so I could get to it and give me strength to do that work. While I was there in that position the engine I was working under and the other engine hitched to it came back and pushed me back the way my head was. When it came back it curled me up against the block and rail, pushing my head back between the block and rail — that is, the block they used-for blocking and cribbing to get the engine on. When it started back it just squeezed me.”

On cross-examination appellee testified be did not know wbat caused tbe tender to move.

There was testimony which, perhaps, would have supported a finding that tbe movement of the derailed engine and tender was not due to negligence for which appellant was liable to appellee, but tbe question is: Was there testimony to support tbe finding made by the' jury that tbe movement was due' to negligence on its part? It is believed that there was sucb testimony. Appellant’s road-master, Taylor, who, as stated above, was directing tbe work at tbe time appellee was injured, testified as follows on bis direct examination as a witness for appellant:

“I was present when he (appellee) claims to have been hurt. I had direct charge of putting that engine back on the track. At the time he claims he was hurt the engine and tender were off on the ground on the oil mill track at Winnsboro. * * * We were trying to turn the derailed engine and tender back on the track. We were not able to turn it with our engine, and we got the Marshall & East Texas Railway people to bring their engine and hitch a box car between our engine and their engine to pull it on, as our engine was headed the wrong way, towards Greenville. In doing this work it became necessary to take some of the brake rigging down to get the frog under. That brake rigging was about the front truck of the tender. * * * Mr. Smith took it on himself to go under there. * * * I saw Smith come out from under the engine when he claims to have been hurt, and I asked him if he was hurt and if he wanted to make a report, and he said, ‘Hell, no.’ He said his arm was numb. While he was under there I did not observe any movement of the tender, and I don’t believe the tender moved when we coupled into it. It might have settled back a little. Two negroes were under there, and they didn’t notice it moving. It may have settled back in the ground there where the dirt gave way. The wheels were buried up in the dirt. But it could not have settled back over two inches, and that would have been slow. Yes, I was looking right at it at the time, and I know it couldn’t have settled more than two inches.”
On Ms cross-examination Taylor testified:
“Yes; the live engine we had there of our own was already hitched onto the derailed engine, and we had tried to pull the derailed engine on with that engine before we got the Marshall & East Texas engine. The two engines we had there, the derailed engine and the other one, were headed the same way and nothing between them. The Marshall & East Texas engine was headed the other way, towards Shreveport. At the time Smith claims .he was hurt we were working to get a frog down, and we had arranged to get the Marshall & East Texas engine, but hadn’t coupled it onto the engine to make a pull when he was hurt. Right at that time think they had gone off to get a box car. It was necessary to put a frog under the tender there. Yes; in order to place the frog it was necessary for some one to go under there and disconnect this brake rigging, and Smith was the one that did it. Yes; it was part of his duty; some of them had to do it. I knew it was being done, and I knew the men were under there doing the work. While they were under there doing that work this Marshall & East Texas engine with this box car came up and run up to our engine. At the time this Marshall & East Texas engine bumped this box car into our live engine I was standing right by the side of the derailed engine tank. They made a very slight jar, if any, when they coupled into it. Smith came out soon after they coupled into our engine, and I asked him if he was hurt and he said, ‘Hell, no.’ He was rubbing his arm, and said it numbed his arm. I also asked him if he wanted to make a report. I did not say to the trainmen there at that time, ‘Hell, look out there; you are about to kill a man; be careful.’ Pretty sure I did not say that. Said nothing about them looking out or be careful or you came near killing a man, that I remember of. No; I couldn’t say just exactly how far the engine did move back there, but it couldn’t have moved back over a couple of inches.”

Being further examined by appellant the witness said:

“There was not much jar there when they made the coupling. I didn’t say anything about the jar when they made the coupling. Of course, there is always a motion or slight jar. * * * I couldn’t tell you whether or not Smith was under the tender right at the time they made the coupling, as I never thought much about it after we got through.”

Further cross-examined by appellee, he testified:

“Yes; they have to come back with a certain amount of force to make a coupling on these automatic. couplers, but I don’t know how hard. I think they ought not to couple an engine into a car with a man under it working with a brake rigging, and in a position where he is liable to be crushed with a car. Sometimes we all do things we ought not to do. No; I wouldn’t go under there if I thought they were going to couple an engine on.”

From the testimony just set out alone we think the jury might have found that the movement of the tender was due to the* act of employes in charge of the Marshall & East Texas engine in causing same to collide with the engine coupled to the derailed engine and tender, and that they might have found further that it wa.s negligence for which appellant was liable to cause or permit the engines to collide under the circumstances. It is unnecessary, therefore, to look to the record to determine whether the verdict can be supported on other testimony appearing therein .or not.

If the jury might have found appellant to have been guilty of negligence as charged, then the further contention made by appellant that it appeared as a- matter of law that appellee was injured as the result of risk he assumed, should be overruled; for he did not assume risk arising from appellant’s negligence of which he was ignorant.

The eighth assignment, under which appellant questions the sufficiency of the testimony to support a finding that the injuries from which appellee suffered were due to the negligence charged against it, and the tenth assignment, under which it complains of the action of the court in overruling its motion for a new trial on the ground of newly discovered evidence, are overruled. We think the testimony was sufficient to support findings that the injury inflicted upon appellee while he was under the tender rendered him sexually impotent, caused paralysis of his left side, will probably shorten his life, and also will probably permanently disable him from engaging in work of any character. It is not believed we should say the trial court abused the discretion he had when he overruled the motion for a new trial on the ground stated.

But we are of opinion the verdict and judgment are grossly excessive, and that on that ground the judgment should be reversed, and the cause remanded for a new trial, unless a remittitur of the excess is filed here as permitted by law. Vernon’s Sayles’ Statutes, art. 1631. The judgment, we think, is for $30,000 more than it should be for. If a remittitur of that much of the judgment is filed with the clerk of this court within 20 days from the date of the filing of this opinion, the judgment will be so reformed as to adjudge a recovery in appellee’s favor of the sum of $20,000, and, as so reformed, it will be affirmed; otherwise it will be reversed, and the cause will be remanded for a new trial.


source: Caselaw Access Project

author: LEVY, J.

license: Public Domain

text:
    ST. PAUL FIRE & MARINE INS. CO. v. HUFF.
    (No. 1372.)
    (Court of Civil Appeals of Texas. Texarkana.
    Jan. 6, 1915.
    Rehearing Denied Jan. 21, 1915.)
    1. Insurance (§ 672) — Avoidance eor Misrepresentations — Immaterial Representations.
    Under Rev. St. § 4947, providing that a misrepresentation in an application for insurance must be material to a risk to avoid the policy and must be so shown upon the trial and decided as a question Of fact, where the jury specially found that misrepresentations were made, but that they were not material to the risk, insurer is not entitled to judgment upon the findings.
    [Ed. Note. — Eor other cases, see Insurance, Cent. Dig. §§ 1789, 1790, 1792-1794; Dec. Dig. § 672.]
    2. Insurance (§ 255*) — Avoidance eor Misrepresentations — ' ‘Material Risk. ’ ’
    A misrepresentation “material to the risk” is one concerning a fact which would induce the insurer to decline the insurance or to charge a higher premium.
    [Ed. Note. — Eor other cases, see Insurance, Cent. Dig. § 548; Dec. Dig. § 255.]
    3. Insurance (§ 665*) — Actions on Policies —Sufficiency oe Evidence — Materiality of Misrepresentations.
    In an action upon a policy insuring an automobile, evidence held to warrant the jury in finding that misrepresentations not fraudulently made as to the cost of the automobile and the length of time it had been used were not material to the risk.
    [Ed. Note. — Eor other cases, see Insurance, Cent. Dig. §§ 1555, 1707-172S; Dec. Dig. § 665.]
    4. Insurance (§ 334*) — Fire Insurance — Causes of Loss — Successive Fires — Negligence.
    Where an insured automobile was totally destroyed by two fires occurring a few days apart, the insured could not defeat recovery on the policy on the ground of the owner’s negligence in not properly safeguarding the automobile after the first fire, where the policy contained no clause requiring him to do so.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 847-852, 854, 855; Dec. Dig. § 334..]
    5. Appeal and Error (§ 931) —Presumptions— Findings to Support Judgment.
    Where the jury, in an action on a fire insurance policy requiring the insured to furnish proof of loss within 60 days, found that the insured gave reasonable notice of loss before bringing suit, and there was evidence to support a finding that the insurer waived the requirements for proof of loss, it will be presumed, in support of a judgment for the insured, that the court found such waiver.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 3728, 3762-3771; Dec. Dig. § 931.]
    Appeal from District Court, Fannin County; Ben H. Denton, Judge.
    Action by G. W. Huff against the St. Paul Fire & Marine Insurance Company. Judgment for the plaintiff, and defendant appeals.
    Affirmed.
    E. G. Senter, of Dallas, for appellant. Thos. P. Steger, of Bonham, and J. G. Mc-Grady, of El Paso, for appellee.

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

   LEVY, J.

The policy of insurance sued upon in this case insured an automobile and its equipment against loss or damage by fire to an amount not exceeding $1,000. While the policy was in force, the automobile was damaged and practically destroyed by fire, being burned twice about two or three days apart. The defense was failure to make proof of loss within 60 days and of appraisal of the loss after demand therefor by the insurer, and misrepresentation of material facts concerning the subject of insurance. The defendant further pleaded as a defense failure and neglect of the insured to protect and safeguard the automobile from further damage after the first fire occurred. The case was submitted to the jury on special issues. The court, with the assistance of the jury findings, entered judgment for the plaintiff for $850.

Appellant insists that it was entitled to, and the court erred in refusing to give, judgment in its favor on the several answers of the jury in respect to representations by the insured concerning the subject of insurance. Appellant pleaded as a defense that the assured, in his written application for the policy, materially misrepresented the cost and the service to which the machine had been subjected. In the application for the policy the assured stated:

“ (11) The cost to the assured of the above-described automobile, including its equipment, was $1,850.00.” And “(9) the above-described automobile, when purchased by its present owner, was secondhand (been run three months).”

In respect to the answer made to question 11, it appears from the evidence that the assured did not pay the amount mentioned in cash for the machine, but traded Mr. Maloney property equivalent to that value for it. The agent of the appellant who took the application testified:

“I did not ask Mr. Huff the circumstances of the purchase of his car. I only asked him what it cost. I undertook to use his exact language in every instance in filling out the blank. Mr. Huff answered, ‘$1,850.’ There was nothing said at that time about that being a trading proposition, as I ’remember.”

In respect to the ninth question, it is true, according to the evidence, that the machine was a secondhand one at the time it was purchased by the assured. It had been run by the former owners about a year. According to appellant’s agent, he, at the time he took the application for the policy, “examined it closely, and it looked all right, nearly as good as new.” According to the appellee’s testimony, he understood he was answering the question as to the time of service since he had purchased it, which was truly about three months before the date of the application for insurance. Appellee further said, “I had no knowledge whatever about how long that machine had been run when I got it.” It is apparent that none of the answers were fraudulently made. The jury made the findings that the statements in the application were made by the assured, but that neither statement was material to the risk. The legal effect of the findings of the jury is to deny a forfeiture of the policy for the alleged representations. The statute provides that “the matter or thing represented” in “the answers or statements made in the application” must be “material to the risk” in order to avoid the contract, and that it must be so shown upon the trial and decided as a question of fact. Article 4947, R. S. The manifest purpose of the statute was to leave open to judicial investigation in the ordinary way the question of whether the fact concerning which inquiry was made and an untrue answer given was material to the risk. If the fact untruly represented was something not found to be material to the risk, then the policy should not be avoided. Generally stated, a fact would be material to the insurance risk which would induce the insurance company to decline the insurance altogether, or not to accept it unless at a higher premium. Taking this as a fair test, in a general way, of the materiality of a fact in regard to insurance, it is believed that reasonably careful and intelligent men might have regarded the answers complained of as facts not materially affecting the insurance contract. The policy here is an open one in which the value of the machine is left to be estimated in case of loss by fire not to exceed the specified sum; and the statements or facts represented in the application may he regarded as information bearing only upon insurable value of the machine. Comparing such statements as representations of insurable value with the amount of insurance granted, the inference is allowable that they did not influence the accepting or rejecting of the risk. The amount of insurance granted was considerably less than the amount asked for in the application, and the evidence shows that the valuation of $1,850 was not accepted or acted on by the general agents, but the value was acted on by them independently. It appears from the record that the machine was a thing having insurable value if either statement had been correctly given, and it also appears that the matters stated did not have an effect upon, and would not have changed, the rate of premium charged if correctly given.

Appellant was not by the terms of the policy entitled to claim a forfeiture of the policy for negligent failure of the insured to properly safeguard and protect the machine from further damage. And further, the fire, and not the negligence, should be considered here the proximate cause of the loss. The court did not allow the amount of loss occasioned by the theft or trespass.

Appellant next complains, by several assignments, that the court erred in entering judgment for appellee upon the answers of the jury. Taking the facts found by the jury, as necessary to a recovery by appellee, and giving the proper legal effect thereto, appel-lee would be entitled to a judgment, and the court did not err in that respect. It is deemed only important to here allude to the questions in respect to proofs of loss and appraisal of the loss. The requirement of the policy is that the insured should give immediate notice of any loss, and within 60 days after the fire render a statement as to the loss. The jury found that before bringing suit the insured gave reasonable notice of the claim and the amount thereof. And the answers of the jury have some support in testimony. And it is believed that the court was warranted in finding, as in support of the judgment we must assume he did, that the appellant waived any defense in respect to failure to furnish proofs of loss. Appellant demanded an appraisement of the loss under the terms of the policy, and appellee went to the expense of preparing for and complying with such demand. Insurance Co. v. Moriarty, 37 S. W. 628. And as well do the acts and circumstances in evidence make an issue of fact of the waiver or abandonment on the part of appellant of appraisement after the demand therefor and consent thereto by appellee.


author: RAINEY, C. J.

text:
    TEXAS CENT. R. CO. v. ROSE.
    (No. 7224.)
    (Court of Civil Appeals of Texas. Dallas.
    Dec. 19, 1914.
    Rehearing Denied Jan. 23, 1915.)
    1. Carriers (§ 366:) — Passengers — Ejectment oe Intoxicated Passenger — Liability.
    Where plaintiff, at the time of his ejection from defendant’s train, was mentally and physically incapacitated from caring for and protecting himself from danger, defendant’s liability for consequent injury depended upon whether the place where plaintiff was ejected was such a place as a prudent person would have considered safe under the circumstances.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 1454; Dec. Dig. § 366.]
    2..Carriers (§ 366) — Ejection oe Passenger — Negligence—Liability.
    Where an intoxicated passenger was incapacitated to take care of himself, as known to defendant’s conductor, when ejected from the train at an intermediate station, at a place which was unsafe and where no prudent person would have left him under the circumstances, it was negligence, and where as a proximate result thereof he was later run over by another train, the defendant was liable.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 1454; Dec. Dig. § 366.]
    3. Appeal and Error (§ 1004) — Review— Amount op Damages.
    A verdict for $15,000 for personal injuries, which the trial judge by refusing to grant a new trial approved, and as to which there was no evidence of passion or prejudice on the part of the jury, will not be disturbed.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3944-3947; Dec. Dig. § 1004.]
    Appeal from District Court, I-Iill County; Horton B. Porter, Judge.

      Action by Charlie Rose against the Texas Central Railroad Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    See, also, 161 S. W. 387.
    Chas. 0. Huff and A. H. McKnight, both of Dallas, and Spell & Sanford, of Waco, for appellant. Walter Collins and Shurtleff & Cummings, all of Hillsboro, for appellee.

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

   RAINEY, C. J.

Appellee sued appellant to recover damages for the loss of a leg caused by the negligence of the appellant.

“Appellee alleged that he went to Waco, where by the use of intoxicating liquors he became so intoxicated that he was ‘mentally and physically incapable of protecting himself from danger or of appreciating danger or of knowing and understanding the nature and consequence of his acts’; that while in this condition he boarded one of appellant's passenger trains for Aquilla, Tex., having a ticket from Waco to that point; that he was ejected from the train at Tokio, a station between Waco and Aquilla, being at the time of his ejection in the aforesaid intoxicated condition; that the employés who ejected him knew of his condition at the time; that he was ejected at an improper place; that later he was run over by one of appellant’s trains, and his leg was so badly mashed and mangled that it had to be amputated between the ankle and the knee; that it was negligence on the part of appellant to require him to leave the train -at such place in his then condition, the employés knowing the condition; and that as a direct and proximate result of such negligence his injury was sustained. Appellant denied the principal allegations, and specially averred that, while ap-pellee was intoxicated, his intoxication did not go to the extent claimed, and that he was physically and mentally capable of taking care of himself. It also averred that he was ejected from the train because he presented no ticket to the conductor and said he had no money with which to pay fare, and therefore the ejectment was proper. In addition to this, it specially alleged that Tokio was a regular station on its line, that it was a proper place at which to discharge appellee, and that the injuries sustained were not the proximate result of any negligence on its part.”

A trial resulted in a verdict and judgment for appellee for $15,000, from which appellant prosecutes this appeal.

Appellant complains of the court for refusing to instruct the jury to return a verdict for it. The contention is that:

“Appellee having advised its conductor when requesting his fare that he had no ticket and no money, appellant had the right to eject him from the train, although he was intoxicated.”

The evidence shows that when the conductor approached appellee and requested his fare the appellee replied that he had no ticket and no money. If the case rested alone on this evidence, appellee was lawfully ejected, and the peremptory charge should have been given, as appellee had no right to recover. But this is not all of the evidence which presents another phase of the case. The appellee alleged that he was in an intoxicated condition, which was known to the employés of appellant, and that he was ejected at an improper place. Appellee, being at Waco at 10 o’clock at night, bought a ticket over appellant’s line for the station of Aquilla; he took passage on appellant’s passenger train leaving .Waco at 10 o’clock at night for Aquilla. 1-Ie was intoxicated, some of the' witnesses pronounced him drunk. Ap-pellee says he was drunk and remembered nothing about the accident. The conductor testified:

“I was conductor on the train running from Waco to Whitney on September 14, 1912. The "train on which I was conductor left Waco at 10 p. m. September 14; 1912. I was working my train, and on stepping out of the door onto the platform, at the rear of the chair car, the porter on the Pullman car pointed to a young man sitting on the platform of the chair car with his feet resting on the steps of the chair car. I-Iis head was turned westward, which was toward the steps of the car. With reference as to whether I saw Gharlie Rose before he boarded my train, I will state that I did not see him that I remember of. I did not recognize the young man on the steps as any one whom I had seen before. The Pullman porter first called my attention to him sitting on the platform of the chair car. I got him by the arm and said: ‘Young man, get up; let’s see what you have got.’ He got up very readily. I asked him if he had a ticket, and he felt in his pockets and said: ‘No; I ain’t got no ticket.’ I asked him then, if he had any money, and then he felt in his pockets and replied; ‘No; I ain’t got nothing.’ 1 asked him where he wanted to go, and he replied, T want to go to Waco.’ I told him that we had just left Waco, and he remarked that he wanted to go to Waco. I told the Pullman porter, Shorty, to watch him until I got through working the train. I worked on through the train, and when I returned the young man had again sat down on the rear platform of the chair-car. I asked him for his ticket, and lie went through his pockets and said, T got nothing.’ I asked him if he had any money. He again felt in his pocket, and said, T ain’t got nothing-.’ I then said, T will have to let you off at Tokio,’ and he said, ‘All right.’ I did not see him when he was hurt. I knew nothing about him having gotten hurt. I did not have any conversation with him, other than that, when I asked him for his ticket, and he said, T ain’t got no ticket,’ and when I asked him if he had any money, and he replied, T ain’t got nothing,’ and then I said, T will have to let you off at Tokio,’ and he said, ‘All right.’ That is the only conversation that I had with him. With reference to what I saw him do from the first time that I saw him' on September 14, 1912, until the last time that I saw him, I will state that I was at the head end of the chair car and saw him alight from the train at Tokio. After alighting from the train, he walked from the train to the first panel of fence adjoining the cattle guard on the west side of the train; after reaching this panel of fence he folded his arms and leaned against the fence and was standing in that position when I last saw him.”

The Pullman porter that was on the train that night testified:

“I was standing on the front end of the Pullman sleeper car when he left the train at Tokio. The sleeper ear was on the back end of the train, the last car. I had been on that run two or three years. I have been working for the company a long time. I have been passing through Tokio for seven or eight years. I know the conditions there at Tokio relative to the ground and track. They have just a little shed out there, just crossroads, for a railroad station. I knew that that night. The direction toward Waco is east. The track to the southeast from the station there is usually level, little slantlike. There is a little cut on the east side. I will state that the photograph shown me represents the condition that the track was in the night of the accident. The cattle guard was on the east side of the road, the side toward Waco is the east side, and the side toward Whitney is west side. There is just an ordinary road crossing there. The cattle guard is on the Waco side of the road crossing, the east side. That night when Charlie Rose was hurt, the Pullman car that I was on stopped on this side of the cattle guard, towards Waco. There was a little fence,, the cattle guard. The fence connected with the cattle guard. There was no way that Charlie Rose could reach the station there at Tokio from where he was put off without going over the fence. If the train passed, he could go right up the track. He would pass the cattle guard in going that way. Charlie Rose was let off the train there about 10 or 12 feet on the Waco side from the cattle guard.”

He also testified:

“When Mr. Holt, the conductor, came by X pointed back at Charlie Rose, and when Mr. Holt came by he did not see Charlie Rose, and I pointed back at him. I thought he was trying to beat his way. Mr. Holt went back to see if he had a ticket and he didn’t have none. Mr. Holt went into the sleeper to get the tickets, and he told me to keep my eye on him, or watch him, or something, like that. When he comes back, he asked Charlie Rose for his ticket and he did not have none, and he told him [Rosel, ‘When you get to Tokio, you will have to get off,’ and by that time we were near Tokio, so when we got to Tokio, he [Holt] says to me, ‘When we get to Tokio, let him off.’ Mr. Holt said that to me. He was the conductor. When we got to Tokio, X opened the vestibule, and said, ‘All right,’ and he got off. The spot where he got off was on the left-hand side going west. On the left-hand side.”

The appellee was ejected in a cut with high embankments on either side of the track, and about 12 feet east from a cattle guard and within the right of way, which was fenced, and for appellee to reach the depot it would be necessary for him to climb the embankment and go over or through the fence or across the cattle guard into the public road, running just west of the cattle guard, leading up to the depot. The place where he was put off was not the usual and customary place for passengers to alight, and not the place where other passengers alighted that night. Appellee was found early next morning near the cattle guard with one leg so mangled that it had to be amputated between the ankle and knee, and when some parties lifted him up, a ticket entitling him to transportation over appellant’s road from Waco to Aquilla dropped from his clothing.

Under the facts the question arises as to whether the appellant was liable for its negligence in ejecting appellee from its train at the place it did. On a former appeal of this case from a judgment rendered in favor of appellee this court reversed and remanded the case. Tex. Cent. Ry. Co. v. Rose, 161 S. W. 387. We said:

“If the appellee at the time of his ejection from the train was mentally and physically incapacitated from being able to care for and protect himself from danger, then appellant’s liability depends upon whether * * * the place where ejected was such a one as a prudent person would have considered safe under the circumstances.”

The court on this trial submitted to the jury special issues, among them the following :

“If Charlie Rose was on defendant’s train m a state of intoxication such as rendered him mentally and physically incapable of caring for himself and of app, eciating danger and understanding the nature and consequences of his acts, and if he remained in such condition until after he was injured, if he was, and if the defendant’s agents in charge of the operation of said train required him to leave said train while he was in such condition, and if they knew of such condition at the time they so required him to leave said train, if they did, and if the place where they required him to leave said train, if they did, was such a place as a person of ordinary prudence would have considered unsafe to leave a person in such condition under the circumstances, and if the condition of such place was known to said agents of defendant at the time they so desired him to leave said train, if they did, then was the act, if any, of the defendant’s said agents and servants in so requiring him to leave said train, if they did, at said time and place an act of negligence as that term has been defined to you?”
“If such agents of defendant required Charlie Rose to leave said train at the time and place alleged and such act was negligence, then, was such negligence the proximate cause of the injury sustained by' the said Charlie Rose, if any?”

The jury found, in effect, that appellee left the train at Tokio at the request of the defendant’s agents; that at that time he was mentally and physically incapacitated from intoxication to take care of himself, which was known to the railroad employSs, and so remained until he was injured; that the place where ejected was unsafe, and no prudent person would have left him in such a place under the circumstances; that it was negligence and the proximate cause of the ap-pellee’s being injured, and assessed the damage at $15,000. The issue was fairly and correctly presented to the jury. There is no assignment, except attacking the insufficiency of the evidence to support the findings. We think the evidence justifies the finding of the jury that the appellant was liable.

The amount of the verdict is attacked as excessive. It is large, but the jury has found that amount, the trial judge has refused to grant a new trial, thereby approving it, and we will therefore not disturb it, as there is nothing to show passion or prejudice in the jury in rendering it.

The judgment is affirmed.


author: TALBOT, J.

text:
    MAGNOLIA PETROLEUM CO. v. HAVOLINE AUTO SUPPLY CO.
    (No. 7207.)
    (Court of Civil Appeals of Texas. Dallas.
    Dec. 12, 1914.
    Rehearing Denied Jan. 23, 1915.)
    Sales (§ 220) — Contract to Sell-Assign-ability.
    A contract to sell to a certain retailer such gasoline as he shall need for his business, within certain limits, for a year, on 30 days’ credit from date of invoices, involves personal credit, trust, and confidence, and s<j.is not assignable by the buyer without the consent of the seller.
    [Ed. Note. — For other eases, see Sales, Cent. Dig. § 606; Dec. Dig. § 220.]
    Appeal from District Court, Dallas County; Kenneth Foree, Judge.
    Action by the Havoline Auto Supply Company against the Magnolia Petroleum Company. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    Geo. C. Greer and S. W. Marshall, both of Dallas, for appellant. El. J. Gibson and Cal-laway & Mathis, all of Dallas, for appellee.

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

   TALBOT, J.

The appellant, Magnolia Petroleum Company, a wholesale dealer in gasoline, on the 20th day of February, 1912, acting through its agent, E. L. Kalbfleisch, entered into a written contract with Wayne A. Hearne, a retail dealer in such commodity, for the sale by the former to the latter of motor gasoline at nine cents per gallon.' The contract, so far as is material to state, is as follows:

“This contract made and entered into on this the 20th day of February, 1912, by Wayne A. Hearne, of Dallas, Texas, party of the first part, 'and Magnolia Petroleum Company, Dallas, Texas, party of the second part, whereby the party of the first part agrees to buy from the party of the second part such petroleum lubricating oils and greases, and also, such other products as are named in the list below, as the party of the first part may need for use in its plant for one year from February 20, 1912, at the following prices for the goods named:
Min. Max. Grade Pr. Min. Max. Grade Per
of Oil. Gal. of Oil. Gal.
30 100 Motor
gasoline 64 9c
“Above prices are in barrels f. o. b. Dallas, Texas, Terms: Cash 30 days from date of invoice.
“If during the life of this agreement the financial responsibility-of the party of the first part becomes impaired, or unsatisfactory to the party of the second part, cash payments or satisfactory security may be demanded by the party of the second part.”

On the 14th day of August, 1912, the Adolphus Auto Supply Company, a partnership, composed of J. W. Crotty, Edwin Hobby, and F. E. White, purchased and took over the business of the said Hearne, and at the same time and in connection therewith purchased the contract referred to above, said contract being assigned by the said Hearne to the Adolphus Auto Supply Company by an instrument in writing on the back thereof in the following language:

“Dallas, Texas, August 14, 1914.
“For valuable consideration, receipt of which is hereby fully acknowledged, I hereby transfer and assign the within contract to the Adolphus Auto Supply Company, Dallas, Texas.
“Wayne A. Hearne.”

In the month of September, 1912, the Adolphus Auto Supply Company was converted into a corporation under the corporate name of Havoline Auto Supply Company; the stockholders thereof being the same persons who had composed the former partnership. The business conducted by the partnership firm of Adolphus Auto Supply Company and by the Havoline Auto Supply Com.pany, corporation, was of the character as that conducted by the said Wayne A. Hearne and was carried on at the place where Hearne carried on his business. The appellant delivered gasoline under the contract in question to Hearne until he sold out to the Adolphus Auto Supply Company, then to that company until its incorporation under the name of Havoline Auto Supply Company, and then to this corporation until the 31st day of December, 1912, when it refused to deliver any more gasoline under said contract. The total amount of gasoline delivered under said contract up to and including December 31, 1912, was 43,000 gallons, and at this date gasoline had advanced in price to about 20 cents per gallon wholesale. Appellant refusing to deliver to appellee any more gasoline under the contract mentioned, appellee instituted this suit against appellant charging a breach of said contract, and praying for damages in the sum of $17,000. The appellant pleaded a general demurrer, general denial, and specially: That it had never in any manner consented to the transfer or assignment of the contract in question, or the rights thereunder, by the said Wayne A. Hearne to the Adolphus Auto Supply Company, or the appellee or any one else, and that without such consent said contract was not assignable and appellant was not obligated and bound to deliver gasoline thereunder to either the Adolphus Auto Supply Company or the appellee. That on August 14, 1912, being advised that Wayne A. Hearne had sold out the business to the Adolphus Auto Supply Company, including the contract between the Magnolia Petroleum Company and Hearne, the Magnolia Petroleum Company declined to recognize the transfer of said contract as binding upon it to deliver thereunder to the Adolphus Auto Supply Company, and that when it did so decline the agents and representatives of the Adolphus Auto Supply Company represented to the Magnolia Petroleum Company that the Adolphus Auto Supply Company was but a continuation of the business of Wayne A. Hearne, and that Wayne A. Hearne still owned a large and substantial interest in said business, and that it was relying upon this representation that the Magnolia Petroleum Company continued to make deliveries, and that it did not learn until the latter part of December, 1912, that Wayne A. Hearne had no interest in the business and that the business was not a continuation of the Wayne A. Hearne business, but was owned entirely by others, and that, as soon as it learned thereof, it notified the plaintiff that it was no longer bound to deliver gasoline under the contract, and would not do so. The appellee by supplemental petition specially excepted to this plea on the ground that the contract entered into between the appellant and Wayne A. Hearne was assignable at law, and hence whether the same was owned by Hearne or his assignee' was immaterial, as appellant was bound to comply with the terms and conditions thereof in any event. This exception was sustained and the plea stricken out. The appellant further pleaded by way of cross-action, that for such gasoline as it did deliver to plaintiff between August 14, 1912, and December 31, 1912, under the representations to the defendant by plaintiff that it was but a continuation of Wayne A. Hearne’s business, thereby inducing it to recognize and deliver under the contract, it was entitled to recover from plaintiff the difference between the contract price of nine cents per gallon under which it had made such deliveries, and the market value of the gasoline between those times, as it had suffered that loss through the misrepresentations of the plaintiff in inducing it to deliver under the contract, to the plaintiff. To this cross-action appellee filed an exception asserting, in effect, that the contract, upon which its suit was founded, was assignable at law without the consent of appellant, and hence the allegations of the cross-action showed no cause of action against appellee. This exception was also sustained, and the appellant denied the right to introduce any evidence in support of said cross-action.

The case was tried without a jury, and the court held, as shown by his conclusions filed, that the contract entered into by the appellant and Wayne A. Hearne was assignable at law and bound the appellant to perform it in the hands of appellee; that, at the time appellant refused to furnish any more gasoline under the contract, there remained of the maximum amount provided for thereby 57,000 gallons of gasoline; and that if appellant had complied with said contract and supplied appellee with that amount of gasoline between the 1st day of January, 1913, and the 20th day'of February, 1913, the date of the expiration of said contract, it eoald have disposed of the same to its retail trade at a net profit of 8 cents per gallon. The total net profit under this finding of the court be-i ing $4,560, judgment was rendered in favor Í of the appellee therefor.

Appellant complains, in its first and second assignments of error, of the trial court’s action in sustaining appellee’s exceptions to the special defense pleaded by it, which is substantially set out above in our statement of the case. The propositions contended for under these assignments are practically the same, and are to the effect that:

“Where a contract for the sale of gasoline provides for the sale of such quantity of same as the buyer may need for use in his plant for one year, the buyer being a retail dealer therein, the transfer by assignment of the contract by the buyer does not obligate the seller to continue the contract with the transferee, and upon the transferee being informed by the seller that it will not continue to fill the contract, and thereupon the transferee represents to the seller that the original buyer still owns a controlling interest in the business, and that the business is but a continuation of the original buyer’s business, and the seller relying upon such representations and induced thereto thero-'by continues to fill such contract and afterwards learns that such representations are untrue, such seller has the legal right then to refuse further to deliver under such contract, and a plea setting up the same is a good plea in defense of suit for failure further to deliver under such contract, and it is error for the trial court to sustain plaintiff’s special exception thereto.”

Article 583 of the Revised Statutes of 1911 is as follows:

“The obligee, or assignee, of any written instrument not negotiable by the law merchant may transfer to another, by assignment, all the interest he may have In the same.”

Many kinds of contracts have been held to be assignable under this and similar statutes, and also in equity; but in no case, so far as we are aware, has it been held that rights under a contract involving personal credit, trust, and confidence may be assigned by one of the parties thereto without the consent of the other. On the contrary, it has been quite uniformly held that in such eases the contract is not assignable. In Pollock on Contracts (4th Ed.) p. 425, it is said:

“Rights arising out of contract cannot be transferred if they involve a relation of personal confidence, such that the party whose agreement conferred those rights must have intended them to be exercised only by him in whom he actually confided.”

The principle here announced has been recognized and sustained by decisions of our own courts and by decisions rendered in other jurisdictions. Menger v. Ward, 87 Tex. 622, 30 S. W. 853; Land Co. v. Traction Co., 95 Tex. 252, 66 S. W. 766; Smith v. Pitts, 57 Tex. Civ. App. 97, 122 S. W. 46 ; Lansden v. McCarthy, 45 Mo. 106; La Rue v. Groezinger, 84 Cal. 281, 24 Pac. 42, 18 Am. St. Rep. 179; Arkansas Smelting Co. v. Belden Mining Co., 127 U. S. 379, 8 Sup, Ct. 1308, 32 L. Ed. 246. In Lansden v. McCarthy, supra, it was held that a contract by a butcher to deliver meat to a hotel for one year, to be-paid for at the end of each month, could not be assigned by the hotel keeper so as to bind the butcher to carry out the contract with the purchaser thereof. It was so held on the-ground that the butcher’s estimate of the solvency and pecuniary credit and standing of the purchaser’s assignor might have constituted an important condition of the contract, without which he would never have entered into it. This case is cited by the Supreme Court of this state in Menger v. Ward, supra, and the following remarks of the judge writing the opinion quoted with approval:

‘The contract imposed no obligation upon the defendant to accept as his debtors any other parties than those with whom he contracted. Nor was he under any obligation to experiment for a month, and determine at the end of it whether he would go on with his contract according as he should or should not succeed in securing prompt payment. He was willing to give Bedard & Knickerbocker credit; but it does not thence follow that he was willing to give credit to the plaintiffs, even for a month or any part of it. Whether or not he would do so was a question for him alone to determine. He could not be forced into it against his will by an assignment of the contract without his consent.”

The case of Arkansas Smelting Co. v. Bel-den Mining Co., cited above, involved a contract in writing, by which a mining company agreed to sell and deliver lead ore from time to time at the smelting works of Billings & Edens, a partnership, to become their property upon delivery, and to be paid for after subsequent assay of the ore and ascertainment of the price. The contract and the smelting works were sold to the plaintiff in the suit, a corporation, and the defendant, the mining company, ceased to deliver ore under the contract and refused to perform it. The court held that the defendant, the mining company, could not be compelled to accept the liability of another person or corporation as a substitute for the liability of those with whom it had contracted. In delivering the opinion of the court, Mr. Justice Gray, among other things, said:

“At the present day, no doubt, an agreement to pay money, or to deliver goods, may be assigned by the person to whom the money is to be paid or the goods are to be delivered, if there is nothing in the terms of the contract, whether by requiring something to be afterwards done by him, or by some other stipulation, which manifests the intention of the parties 'that it shall not be assignable. But every one has a right to select and determine with whom he will contract, and cannot have another person thrust upon him without his consent. In the familiar phrase of Lord Denman, ‘You have the right to the benefit you anticipate from the character, credit and substance of the party with whom you contract.’ Humble v. Hunter, 12 Q. B. 310, 317; Winchester v. Howard, 97 Mass. 303, 305 193 Am. Dec. 93]; Boston Ice Co. v. Potter, 123 Mass. 28 [25 Am. Rep. 9]; King v. Batterson, 13 R. I. 117, 120 [43 Am. Rep. 13]; Lansden v. McCarthy, 45 Mo. 106.”

As has been seen, the contract in question in the case at bar obligated the appellant to sell Wayne A. Hearne for the period of one year, as the said Hearne should need for use" in his plant, gasoline at nine cents per gallon, limited to not less than 30,000 gallons and not more than 100,000 gallons, and further provided for 30 days’ credit from date of invoices. It is manifest by the contract itself, or clearly appears, that it was entered into on the part of the appellant upon credit extended to Wayne A. Hearne and by reason of the trust' and confidence placed in- him personally. This being true, the contract, so iong as it remained executory, could not be assigned by Hearne without the consent of appellant. Beeausé appellant was willing to give credit to Hearne, it does not follow that he was willing to give credit to appellee. It could not be forced to do so against its will by a mere assignment of the contract. As said in Menger v. Ward, above referred to:

“There is more involved in the relation of debtor and creditor * * * than simply the financial ability of the debtor and the value of the security given; the character of the man is oftentimes worth more than Ms property as an assurance of prompt payment.”

The case was tried by the appellee in the court below on the theory that the contract sued on was assignable without the consent of appellant, and hence the exceptions urged to appellant’s special defenses were sustained as being wholly immaterial. This, we think, was an erroneous view of the law arising upon the facts, and for the error in sustaining the exceptions and striking out said defenses the judgment must be reversed. That an assignment of a contract, such as the one involved in this suit, when made by one of the parties thereto, without the consent of the other, may he ratified, or the party to whom such assignment is made may, by consent, be substituted for the assignor, cannot’ well be questioned, but no such issue was presented and determined. Whatever issue the answer of the appellant may have- presented in this regard was eliminated by the court’s ruling in sustaining appellee’s exceptions.

Appellee suggests that appellant nowhere contends “that there were any rights growing out of the contract involving trust, confidence, skill, or any similar element of consideration” ; but we find that, in stating the nature and result of the suit, appellant states that the contract in question provided for 30 days’ credit from date of invoice, and its first assignment of error, wherein it is asserted, in effect, that the transfer by assignment of said contract by Wayne A. Hearne did not obligate appellant to continue the same with appellee, requires that the assignment, be sustained if the contract involved personal credit, trust, and confidence whether that specific reason for so doing is urged or not. That the contract provided for sales of gasoline on credit of 30 days is clear, and hence it follows that rights of appellant growing out of it necessarily involved personal credit, trust, and confidence.

The third assignment of error complains of the court’s action in sustaining appellee’s demurrer to appellant’s cross-action. What we have said in disposing of appellant’s first and second assignments of error is applicable here. The contract upon which appellee’s suit is founded could not be assigned by Hear-ne without appellant’s consent, and the allegations of the cross-action to the effect that such assignment was without appellant’s consent,' and that the deliveries of gasoline to the Adolphus Auto Supply Company and to the appellee under the contract had been made by reason of the fraudulent misrepresentations of appellee to appellant, which were fully set out, and that but for such representations appellant would not have made such deliveries, and that appellant had thereby suffered damages, set up a cause of action which could be prosecuted in this suit. It was error therefore to sustain the demurrer and strike out the cross-action.

The next contention is that the judgment is excessive, because rendered upon a mistaken idea of the measure of appellee’s damages. Upon this question it is sufficient to say that if we are correct in our conclusion that the contract sued on was not assignable without the consent of appellant, and it did not agree to the substitution of appellee for Hearne, nor with full knowledge of the transfer of said contract ratify the same, then appellee had no cause of action and could not recover anything. But if appellant agreed to such substitution of appellee, or with full knowledge of the transfer and assignment of the contract to appellee ratified such transfer, then and in that event we think the measure of damages applied by the learned trial judge was correct.

For the reason stated, the judgment is reversed, and the cause remanded.


author: HALL, J.

text:
    DEAN et al. v. A. G. McADAMS LUMBER CO.
    (No. 692.)
    (Court of Civil Appeals of Texas. Amarillo.
    Dec. 12, 1914.
    Rehearing Denied Jan. 23, 1916.)
    1. Limitation on Actions (§§ 13, 100*) — Plead in g- as Defense — -Estoppel.
    Where a surety on a contractor’s bond, who was not liable thereunder to materialmen, told a materialman in good faith that he was liable for all materials furnished the contractor, he was not thereby estopped from pleading limitations in answer to an amended petition stating a cause of action for such false representations, in an action in which the original petition sought to recover on the bond, and limitations ran against such cause of action from the time that the materialman saw the bond, or by the use of reasonable diligence might have seen it, as the materialman was presumed to know the law, and, when he became familiar with the provisions of the bond, was not entitled to rely on the surety’s misrepresentation as to a matter of law.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 56-58, 323, 480-493; Dec. Dig. §§ 13, 100.*]
    2. Sales (§ 358*) — Actioin fob Pbice — Evidence — Relevancy—Value.
    In an action against a contractor for the value of lumber furnished for use in the construction of a school building, where the contractor by sworn plea denied some of the items and amounts shown on the account, and testified that the price paid was the wholesale price, plus $2.50 per thousand feet, an estimate by the superintendent of the building, showing the amount and value of the material used to a certain date in the construction of the building, practically all of the data for which estimate was obtained from the contractor, was properly admitted upon the issue of value.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1049-1055; Dec. Dig. § 358.*]
    Appeal from District; Court, Hardeman County; J. A. Nabers, Judge.
    Action by the A. G. McAdams Lumber Company against W. A. Dean, W. E. Givens, and others. From a judgment for plaintiff, the defendants named appeal.
    Affirmed in part, and reversed and rendered in part.
    Fires, Decker & Clarke, of Quanah, for appellants. Jos. H. Aynesworth, of Childress, and W. T. Perkins, of Quanah, for appellee.
   HALL, J.

The appellee Lumber Company brought this suit against W., A. Dean and W. R. Edwards, for the value of certain lumber and materials used by Dean and Eubanks in the construction of a school building for the Quanah Independent School District. It joined in the action W. E. Givens and J. W. Allen. The original petition sought to recover against Givens and Allen upon a certain bond given to the school board of the district guaranteeing the faithful performance of the contract entered into between said district and Dean and Eubanks, the contractors. The original petition was filed January 31, 1911. On March 9, 1914, appellees filed their first amended original petition, alleging that W. E. Givens, as an inducement to plaintiff to furnish said lumber and materials, represented to plaintiff “that he (the defendant, W. E. Givens) has executed and delivered his written obligation and bond for the construction of said school building, which obligation and bond defendant then and there represented, bound, and obligated him (the said W. E. Givens), personally, to pay for all materials that might be bought by defendants and used in the construction of said building, and that such bond and obligation made him liable and bound to pay plaintiff for any materials that it might sell and deliver to defendants for use in the construction of said school building,” and sought to recover for such false representations. ' To the cause of action thus pleaded, defendant Givens set up the statute of limitations of two years. In reply to this plea, appellees alleged that Givens was estopped from pleading limitation by his statement-that he was personally bound for the debt by reason of terms the bond above mentioned. There was a verdict and judgment against Dean and Eu-banks, the contractors, and against Givens for the amount of the debt, but in favor of Allen. From this judgment Dean and Givens have appealed.

The bond executed by Givens and Allen is identical in its terms with the bond sued upon and discussed in Garrett et al. v. A. G. McAdams Lumber Co., 163 S. W. 320, and in Republic Guaranty Co. v. Wm. Cameron & Co., 143 S. W. 317, and, for the reasons stated there, could not be a basis for recovery against Givens in this suit. It is contended by appellant Givens that the representations alleged to have been made by him and which appellees contend estopped him from pleading limitation, are: First, the execution of a bond to the school district, which is true; and, second, the expression of an opinion as to the legal effect of the bond, which is a conclusion of law, and that he is therefore not estopped. The bond having been executed, the representation was true to that extent, and, but for the rule of law announced in the two cases above cited, the entire statement made by Givens would have been literally true. By reason of the rule of law, Givens was not personally responsible for the indebtedness sued upon. His statement was made in good faith, and we do not believe he should be estopped thereby from pleading limitations. Appellees are presumed to know the law, and having sued upon the bond more than two years before the amended petition was filed, and being, of course, familiar with its provisions, they must be held to have known that the bond did not bind Givens; that his representation in that particular was untrue, as a matter of law. They could not, therefore, rely upon it. Where, by fraudulent representations of a material fact, the defendant has induced the plaintiff to postpone the filing of the suit until plaintiff’s claim is outlawed, the. defendant will be estopped from relying upon the statute o1 limitations. But misrepresentation as to a matter of law is merely an expression of opinion and will not generally support an action for fraud and deceit. Martin v. Wharton, 38 Ala. 637; Burt v. Bowles, 69 Ind. 1; Franklin Ins. Go. v. Yilleneuve, 25 Tex. Civ. App. 356, 60 S. W. 1014.

Since appellee had no right to rely upon the oifinion as to the legal effect of the bond, expressed by Givens, the statute of limitations commenced to run when appellant saw the bond, .or by the use of reasonable diligence might have seen it. This, according to the record, was not later than January 31, 1911, the date upon which the suit was filed. The plea of limitations should have been sustained.

Appellant Dean assigns as error the action of the court in admitting in evidence the estimate made by the superintendent of the building, showing the amount and value of the material used, to a certain date in the construction of the building. It was shown that practically all of the data from which the estimate was made was obtained from Dean. He testified that the price paid was the wholesale price, plus $2.50 per thousand feet. He had by sworn plea denied some of the items and the amounts shown on the account. Under these circumstances, the estimates were admissible upon the issue of value. Carver v. Power State Bank, 1.64 S. W. 892; Paine v. Argyle & Co., 133 S. W. 895; Memphis Cotton Oil Co. v. Goode, 171 S. W. 284.

It is unnecessary to dispose of the remaining assignments. The judgment as to appellant Givens is reversed and rendered, and in all other particulars is affirmed.

Affirmed in part, and reversed and rendered in part.

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


author: FLY, O. J.

text:
    GULF, C. & S. F. RY. CO. v. VASBINDER.
    (No. 5387.)

    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 6, 1915.
    Rehearing Denied Jan. 27, 1915.)
    1. Carriers (§ 207) — Carriage oe Live Stock— Contracts — Validity.
    Where the agent of a carrier induced a shipper of live stock to sign a contract for shipment just as the train was starting, the contract, which the shipper did not understand, is invalid for fraud, though the shipment was an interstate one.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 129-239; Dec. Dig. § 207.]
    2. Carriers (§ 62) — Oral Contract oe Shipment — Carmack Amendment.
    The Carmack amendment (Act June 29, 1906, c. 3591, § 7, pars. 11, 12, 34 Stat. 593 [U. S. Comp. St. 1913, § 8592]) does not render invalid all oral contracts of shipment, but only those which are in conflict with the schedules and rates published by the Interstate Commerce Commission.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 195-206Y2; Dec. Dig. § 62.]
    3. Appeal and Error (§ 930) — Verdict— Presumptions.
    In an action for damages to a shipment of cattle, the jury having assessed a lump sum for cattle killed and other cattle injured, it cannot be assumed that for the cattle killed the jury awarded an amount greater than their value as shown by the proof.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3755-3761; Dec. Dig. § 930.]
    4. Appeal and Eebob (§ 1068) — Review-Harmless Error.
    In an action for damages to an interstate shipment of cattle, the court did not restrict the jury to the amounts specified in schedules filed with the Interstate Commerce Commission. The damages awarded, however, were much less than the maximum amounts specified in the schedules for the rate paid. Held, that the error was harmless, as the amount awarded was less than the amounts recoverable.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4225-4228, 4230; Dec. Dig. § 1068.]
    5. Courts (§ 97) — Decisions—Precedence.
    The construction of a federal statute by the federal Supreme Court is binding on the state court.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 329-333; Dec: Dig. § 97.]
    Appeal from District Court, Bexar County; W. F. Ezell, Judge.
    Action by W. E. Vasbinder against the Gulf, Colorado & Santa Fé Railway Company and others. From a judgment for plaintiff against the named defendant, it appeals.
    Affirmed.
    Terry, Cavin & Mills and A. H. Culwell, all of Galveston, for appellant. Swearingen & Ward and John H. Bickett, Jr., all of San Antonio, for appellee.

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

       Writ of error pending .in Supreme Court.

   FLY, O. J.

This is a suit, instituted by appellee, to recover damages to a certain shipment of 862 cattle from Pearland, Tex., to Foraker, Okl. It was alleged that the cattle were delivered for shipment to appellant; that after the cattle were loaded, and the train was ready to move, the agent of appellant required appellee to sign a contract, of whose contents he was ignorant, and to the terms of which he did not assent, and by which he was not bound; that the cattle were delayed en route, were roughly and carelessly handled, and many of them knocked down, bruised, and injured; that 21 of the cattle died of their injuries, and the whole shipment was depreciated in value. The damages were placed at $5,080.66. Appellant excepted generally and specially to the petition as to the allegations setting up an oral contract, and answered by general denial, and set up a written contract under which the shipment was made, which provided that appellee should give notice within 91 days after any loss occurred as a condition precedent to recovery, and denied that such notice had been given. It was also alleged that appellant had two rates to Oklahoma for the transportation of live stock, one being a rate at the carrier’s risk and the other at a reduced rate under a contract limiting the liability of the carrier, and appellee shipped his cattle at the reduced rate, one of the conditions of which was that in case of loss payment should be made on the basis of the cash value of the cattle at the time and place of shipment, and not to exceed the value stated in the contract, which was $30 for each animal, and it was also provided that any suit for damages must be prosecuted within six months after the loss or damage occurred. The cause was tried by jury, and resulted in a verdict and judgment against appellant for $2,101.50. A verdict was rendered in favor of one of the connecting carriers sued with appellant, and the cause was dismissed as to another.

Appellee made an oral contract with appellant for the shipment of the cattle from Pearland, Tex., to Foraker, Okl. When the parol contract was made, a written contract was not mentioned; nor was it mentioned until the train was about to start. Appel-lee was not given an opportunity to read the contract. He did not know of any of the conditions or provisions in the contract. While signing the contract, the conductor was urging appellee.to come and get on the train. Appellee was so hurried that he left his overcoat, and the train was moving when he boarded it. Appellee did not know that the paper he signed was a contract. All the papers signed by appellee were signed just as the train began to move, and he was ignorant of their contents.

Contracts signed under similar circumstances to those hereinbefore stated have several times been declared null and void by the courts of Texas. Railway v. Meadors, 104 Tex. 469, 140 S. W. 427; Railway v. Grant, 6 Tex. Civ. App. 674, 26 S. W. 286; Railway v. Sparks (Civ. App.) 162 S. W. 943. If, as found by the jury, the written contract was procured by fraud, it was not binding on appellee, and the conditions as to .notice and value of the cattle had no effect. The facts of this case bring it peculiarly within the scope and effect of the Meadors and Sparks Cases, and they must be conclusive, unless, as contended by appellant, a different rule is laid down' by the Supreme Court of the United States;

If the written contract was not assented to by appellee, and his name thereto was procured by fraud, as the facts indicate, then it was not his contract, and could not be binding upon him. We cannot imagine the most exalted court in the land holding that a party will be bound by the terms of a shipping contract of whose contents he was ignorant, and with which he was not given time to acquaint himself, and yet that is the effect of the contention of appellant. We shall review the later decisions of the federal Supreme Court cited by appellant, and endeavor to show that there is no material conflict between them and the Texas cases herein cited.

In the case of Adams Express Co. v. Croninger, 226 U. S. 491, 33 Sup. Ct. 148, 57 L. Ed. 314, 44 L. R. A. (N. S.) 257, appellee. had sued appellant for the full market value of a diamond ring shipped by him from Cincinnati, Ohio, to Augusta, Ga., and the defense of the express company was that the Interstate Commerce Commission schedule of rates showed that 25 cents should be the tariff if the package was of the value of $50 or less, and was 55 cents if the value was $125, and that the rate charged appellee was based on a value of $50. The court held that under the Carmack amendment of June 29, 1906, the federal government took exclusive possession of all interstate shipments; that the carrier is required to issue a receipt or bill of lading, and is made liable to the holder for loss, damage, or injury to his property; that inquiry as to actual value will not be permitted where the liability of the carrier is limited to the agreed value, where the receipt, as well as the published rates on file with the Interstate Commerce Commission, plainly show that the rate charged was based upon value, and that it will be presumed that the shipper knew that the rate was based upon the agreed value. To the same effect are the decisions in Railway v. Miller, 226 U. S. 513, 33 Sup. Ct. 155, 57 L. Ed. 323, Wells Fargo & Co. v. Neiman-Marcus Co., 227 U. S. 469, 33 Sup. Ct. 267, 57 L. Ed. 600, Railway v. Harriman, 227 U. S. 657, 33 Sup. Ct. 397, 57 L. Ed. 690, Railway v. Cramer, 232 U. S. 490, 34 Sup. Ct. 383, 58 L. Ed. 697, and Railway v. O’Connor, 232 U. S. 508, 34 Sup. Ct. 380, 58 L. Ed. 703. Tliere is not a word or syllable in either of those decisions in conflict with the Texas cases.

Strong reliance, however, is placed by appellant on the case of Railway v. Robinson, 233 U. S. 173, 34 Sup. Ct. 556, 58 L. Ed. 901, which -was decided in April, 1914. In that ease it was held, as in the other cases cited, that the exclusive rule on the subject of the liability of a railway carrier, under contracts for interstate shipments, is furnished by • the Carmack amendment, and further that a special contract for an interstate shipment without limitation of the carrier’s liability to an agreed value has no binding force, where the carrier’s published tariffs on file with the Interstate Commerce Commission graduate the rates according to declared value, and limit the carrier’s liability accordingly, since the shipper, as well as the carrier, is bound to take notice of the filed tariff, and so long as they remain operative they are conclusive as to the rights of the parties. It was held that an oral agreement could not supersede or set aside the degree of liability of the carrier as fixed by the schedule of tariffs. The court, after citing the eases on the subject, held:

“We regard these eases as settling the proposition that the shipper, as well as the carrier, is bound to take notice of the filed tariff rates, and that so long as they remain operative they are conclusive as to the rights of the parties, in the absence of facts or circumstances showing an attempt at rebating or false billing. * * * To give to the oral agreement upon which the suit was brought, the prevailing effect allowed in this case by the charge in the trial court, affirmed by the judgment of the Supreme Court of the state, would be to allow a special contract to have binding force and effect, though made in violation of the filed schedules, which were to be equally observed by the shipper and carrier. If oral agreements of this character can be sustained, then the door is open to all manner of special contracts, departing from the schedules and rates filed with the Commission.”

The opinion does not condemn all oral contracts, or all special contracts, but only those in conflict with “the schedules and rates published by the Commission.” The opinion in the Sparks Case is not in conflict with the opinion in the Robinson Case, unless it be as to the measure of damages, which the Supreme Court holds is fixed by the schedules and rates filed with and published by the Interstate Commission.

While the trial court followed the case of Railway v. Sparks, and did not limit the recovery to the amount named in the schedule of .rates, in instructing as to the measure of damages, appellant made no effort to have the damages confined to the amount named in the schedule of rates, and the jury found for a less sum than that allowed by the measure of damages fixed by the schedule of rates. The whole attack of appellant on the charge of the court is based on the validity of the written contract. The special charges requested by appellant are all based on the written contract, and the schedule of rates and tariffs is not mentioned in them, and the schedule is not mentioned in the assignments of error,' except in connection with the written contract. The case was tried upon the theory that the liability of the appellant was fixed and controlled by the written contract, and the schedule of rates was men-tionéd only as a mere incident to that contract. This conclusively appears from the proposition under the twelfth assignment of error, which assails that part of the charge fixing the measure of damages. That proposition is:

“If plaintiff was entitled to recover, then his recovery is limited by the terms and conditions of the bill of lading under which the shipment moved; and it was the duty of the court in submitting • this issue to only submit the same as had been provided in the contract.”

The same matter is kept in view in the thirteenth assignment of error, and in the fourteenth assignment of error the special charge set out does not require the jury to fix the damages as set out in the schedule of rates, but to absolutely find for appellant if the shipment was made on that schedule.

However incorrect the measure of damages may have been as given in the charge of the court, still if the verdict of the jury did not exceed the damages which were sanctioned and permitted by the schedule of rates published by the Interstate Commerce Commission, appellant cannot complain, because it has suffered no injury from such error. The evidence showed without contradiction that appellee paid the freight rate of $69 per car, which was predicated upon a valuation for each animal shipped, not to exceed $50, and the highest valuation put upon the steers that were killed was $40 a head, and the highest damages to the cattle which were injured was $5 a head. The 21 cattle, at $40-a head, would be $840, and at $5 a head for the 841 cattle that were injured the damages would be $4,205; but the jury allowed only $1,261.50 for the injured cattle, if full proved value was allowed for the dead cattle. We cannot presume that the jury found the dead cattle to be worth more than the value that was proved, and, no matter what the true measure of damages may have been, appellant was not injured by the verdict.

While in the Robinson Case there is no direct holding that, in the absence of a written contract, the schedule of rates published by the Interstate Commerce Commission shall control as to the measure of damages. that holding may be reasonably inferred from the language of the decision herein quoted. For if an oral contract is only condemned because in conflict with the schedule, it might be inferred that if in harmony with the schedule it would be sustained. If this be a reasonable inference, it is certainly not based on the Carmack amendment, nor on the language of the schedule published by the Commission. In that schedule it is provided:

“The rates iu this tariff apply on shipments of ordinary live stock, where contracts are executed by shippers on blanks furnished by the railroads, and are based on the declared valuation by shippers at the time contract is signed. * * * ”

If there was no written contract executed, as the facts show there was not in this case, then there is nothing upon which to base the valuation of animals to form a measure of the damages. No such contract as that insisted upon by appellant, and which has probably been approved by the federal Supreme Court, could ever have been dreamed of by Senator Carmack when he drew the bill requiring the initial carrier in interstate shipments to issue a receipt or bill of lading to the shipper, and provided that such carrier should be liable “to the lawful holder thereof for any loss, damage or injury to such property caused by it or by any common carrier” into whose hands it might come during its transportation. From being, as was intended by the statute, a measure of protection to. the shipper, the law has become a shield and fortress for the railways of the country, by judicial interpretation. Those decisions of the .federal Supreme Court, however distasteful they may be to state courts, must perforce be followed, as we have sought to follow them in this opinion. The federal statute was designed to give to the shipper the full amount of the loss inflicted upon his property by the carrier, and not such loss as might be fixed by the Interstate Commerce Commission, or by the ingenious and complicated contract drawn by a railway company. But it is so written by the court of last resort, and must be followed until further' legislation shall grant relief.

The judgment is affirmed.