author: RASBURY, J.

text:
    BUICK AUTOMOBILE CO. v. WEAVER.
    (Court of Civil Appeals of Texas. Dallas.
    Jan. 17, 1914.
    Rehearing Denied Feb. 14, 1914.)
    1. Sales (§ 87) — Construction.
    Where the seller of an automobile agreed to furnish a competent man who would instruct the purchaser how to operate the machine, and no agreement as to the period of instructions was made, it will be presumed that' they were to extend ovter a reasonable time.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 239-247, 1046; Dec. Dig. § 87.]
    2. Principal and Agent (§ 148) — Secret Instructions.
    Where the seller of an automobile, who agreed to furnish a competent man to instruct the buyer in the operation of the machine, told his servant, the operator, to instruct the buyer on the journey to buyer’s home, and to return after they reached their destination, such instruction is not binding on buyer, not having-been disclosed to him.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 534-552; Dec. Dig. § 148.]
    3. MASTER AND SERVANT (§ 301) — LIABILITY op Master for Torts of Servant.
    Where the seller of an automobile agreed to furnish a driver to instruct the buyer in its use, the seller is liable for the driver’s negligence in operating the machine, even though it belonged to the buyer, for a master is liable for the tortious acts of his servant in the master’s service, or in the discharge of his employment, when they are done for the master’s business, and for the accomplishment of the object for which a. servant is employed, regardless of the instrumentality by which injury is wrought.
    [Ed. Note. — For other cases, see Master and Servant, Gent. Dig. §§ 1210-1216; Dec. Dig. § 301.]
    4. Master and Servant (§ 327) — Injuries Caused by Servant — ‘‘Contributory Negligence” — Assumption of Rise.
    Where the buyer of an automobile instructed the driver who was furnished by the seller to instruct him in its use to test the speed of the car, the buyer did not assume the risk of injury arising from car’s negligent operation, for no contractual relations existed between him and the seller, and his conduct at most amounted to contributory negligence, which is an act or omission of the plaintiff amounting to the want of ordinary care, concurring with the negligent act of the defendant in producing the injury complained of; and hence, in an action by the buyer against the seller for injuries caused by the negligence of the driver of the machine, an instruction on contributory negligence was authorized where the seller set up the defense that the driver was operating the car under the buyer’s directions.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 1266; Dec. Dig. § 327.

    For other definitions, see Words and Phrases, vol. 2, pp. 1540-1547; vol. 8, p. 7617.].
    5. Appeal and Error (§ 731) — Assignments of Error — Sufficiency.
    An assignment of' error complaining that the verdict is excessive is insufficient for consideration where the facts on which it was based were not set out in the brief, and the assignment was in the same form made a ground for new trial.
    -[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3017-3021; Dec. Dig. § 731.]
    6. Eyidence (§ 244) — Actions.
    In a suit by the buyer of an automobile for injuries sustained in an accident occurring while the machine was being driven by the driver furnished by the seller to instruct the buyer in its use, evidence that the driver, after he had taken the ear to the buyer’s home, stated that he was sent there to instruct the buyer to operate the car, and intended to remain until the buyer learned, and that he had the seller’s consent, is admissible to show that no time was fixed for the buyer’s instruction; the driver’s agency being admitted, but the seller claiming that he was only to give the buyer instructions while taking the machine to the latter’s home.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 916-936; Dec. Dig. § 244.]
    Appeal from District Court, Dallas County t J. C. Roberts, Judge.
    Action by James H. Weaver against' the Buick Automobile Company. From a judgment for . plaintiff, defendant appeals.
    Affirmed.
    Harry P. Lawther, of Dallas, for appellant. Muse & Gano, of Dallas, for appellee.

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

   RASBURY, J.

Appellee recovered verdict and judgment in the court below against appellant for $5,000 for personal injuries received by appellee when appellee’s car operated by appellant’s servant was driven into a ditch.

Appellee, in substance, alleged that on the-day of the accident he purchased an automobile from appellant, paying therefor $550, on condition that appellant would furnish, at its expense, and as part of the consideration of the purchase of the car, a capable person to instruct appellee how to operate, manage, and control same, appellee being wholly ignorant of the construction of the car,' and without knowledge concerning its operation, and that in pursuance of the purchase and agreement appellant placed appellee and his ear in charge of one Birdwell, selected by appellant for the purposes stated, and represented by appellant to be thoroughly capable as an instructor, and safe and skillful as an operator. By further appropriate allegations the accident was shown, and serious bodily injuries to appellee resulting therefrom, which were alleged to be the proximate result of the negligence of appellant’s said servant, who was in control of the automobile and operating same at the time for appellee’s instruction.

After the general denial appellant, in answer to the appellee’s petition, by special plea averred that at the time of the purchase of the car it furnished a driver for appellee at his request to drive the car to Wilmer, appel-lee’s home, several miles distant from Dallas, for the purpose of instructing appellee on the way to Wilmer how to operate same, and for such purpose secured the services of said Birdwell, who was to be under the directions and subject to the orders of appellee, and who was not in the employ of appellant, but who was represented to it to be a competent and careful chauffeur. Appellant further charged that the car was safely delivered at Wilmer, and that the accident occurred thereafter, while said Birdwell was testing the speed of the car at the request, and under the directions of appellee, by reason of which appellee assumed the risk of the accident which followed.

The record sustains in substance the following essential facts: Appellant sold appel-lee a secondhand car for $550, and agreed to deliver the car at appellee’s home in Wilmer, a village in Dallas county, distant several miles from the city of Dallas, and to furnish, as part of the consideration of the purchase, a capable and skillful operator to deliver it, and teach appellee how to operate and control same. No exact period of time was agreed upon between appellee and appellant during which appellee was to receive instructions, although the agent of appellant testified that he told Birdwell to deliver the car at Wilmer, and instruct appellee in its use on the way there, and return on the 5 cr crock train, and is corroborated in that respect by Birdwell, although it is not claimed by either that such directions to Birdwell were known by or communicated to appellee. Deitzel, appellant’s agent, testified that he agreed to furnish ap-pellee a man to run the car, and to teach him to run it, and furnished Birdwell for that purpose, but never claimed to appellee that Birdwell was to teach him only as far as the delivery of the car at Wilmer. After reaching the agreement for the purchase of the car, appellee started for Wilmer, with Bird-well driving the car. Before getting without the city limits, one of the tires was punctured, and they returned to Dallas. The next morning the start was made about 11 o’clock. On reaching Wilmer, appellee and Birdwell halted at the home of.appellee’s brother for dinner. On the way to Wilmer from Dallas appellee’ says Birdwell operated the car. Birdwell says, after crossing the Trinity river south of Dallas, appellee operated it. What occurred after dinner with appellee’s brother was testified to by appellee, W. S. Little, W. T. Whisnant, and Birdwell. The first three are in substantial accord. Birdwell does not agree with any of them. The verdict of the jury authorizes our adoption of the theory of the accident testified to by the first three, which is as follows: After dinner appellee suggested that he and Birdwell go to another brother’s, a mile distant from Wilmer. Bird-well assented, remarking that on the way he would instruct appellee how to operate the car. This he did, sitting beside appellee while he was running the car, telling him what to do, and explaining the various parts of the machine and their uses. This was the first instruction given appellee. This journey was made, and the parties returned to Wilmer. On the return appellee’s “little” brother asked for a ride; Birdwell urging that they give him one. Those named then started on the second trip, with Birdwell beside appellee on the front seat instructing him how to operate the car. Before leaving Wilmer, the witnesses Little and Whisnant were taken in the car. . About one-half mile from Wilmer the road over which the parties were driving turns sharply, and, before resuming its original direction, forms an elbow. On reaching this place, Birdwell cautioned appellee to use care in making the turn, taking hold of the steering wheel at the time, and assisting appellee. Likewise, at the next turn. From the point where the elbow forms, the party continued for about one-half mile to the end of the macadamized road. Here appellee, who was operating the car, told Birdwell that he could not turn the car in order that they might resume their return journey. Thereupon Birdwell changed seats with appellee, took charge of the car, saying he would show appellee how to operate it. He turned the car about, and started in on the return journey, and in a short while had the car going at full speed. About the speed of the car there seems to be no dispute; Birdwell admitting 35 or 40 miles an hour, the other witnesses placing it faster. From where Birdwell started on the return journey, the bend in the road is plainly visible, but, after starting, made no attempt to check his speed before reaching the turn in the road. When he attempted to pass in and through the curve, the car turned a somersault, depositing the occupants in a ditch by the side of the road; the car falling upon appellee, Tittle, and the boy. After the parties had extricated themselves from the ear, Birdwell ran up, inquiring if they were hurt, declaring he was at fault, and ought to be punished. Birdwell’s theory of the accident was in direct conflict with that of the other witnesses; he having testified on that point that on the way out appellee directed him that on the return trip he should drive the ear, and show his friends how the car could run and its good features, that he did so, and was running the car 35 or 40 miles an hour, but slackened the speed to 15 or 20 miles an hour before reaching the turn in the road, and then he could have gone in and through the turn safely, but for the fact that the road was improperly graded. Any other reference to the facts made necessary will be set out under the particular assignment of error calling therefor.

We will consider first the assignments under which it is asserted that the court should have charged the jury that it was necessary that the minds of appellant and appellee should have met in every essential particular concerning the agreement to furnish appellee an instructor before such agreement was binding on either. We do not think the charge should have been given. We conclude from the testimony that it cannot intelligently be denied that it was mutually agreed that appellee should have an instructor. No witness for appellant denies that fact; but it is admitted frankly by appellant’s manager. It is true that no witness attempts to say over what period of time such instructions should extend. The legal presumption in such cases, however, is that such instructions shall continue for a reasonable time, having in view the difficulty or ease with which a person of ordinary intelligence could learn to operate an automobile. While appellant’s manager did testify that he told Birdwell to instruct appellee on the way to Wilmer, and that Birdwell well corroborates him in the statement, it is not claimed by either that such instructions were more than private instructions not communicated to appellee, and by which he cannot be bound.

The refusal of the court below to peremptorily instruct a- verdict for appellant is also assigned as error, on the ground that, the title of the automobile being in appellee, Birdwell was subject to his control and direction, and hence the servant of appellee, for whose negligence appellant was not responsible. We think the contention unsound. It is well settled that the master is liable for the tortious acts of his servant done while in the master’s service, or in the discharge of his employment, or when the acts claimed to be tortious are done in furtherance of the master’s business, and for the accomplishment of the object for which the servant is employed. Railway v. Anderson, 82 Tex. 516, 17 S. W. 1039, 27 Am. St. Rep. 902; Cooper v. Knight, 147 S. W. 349. The instrumentality by or through which the injury is wrought or the negligence committed is immaterial. The manifold methods of avoiding the just liability fixed upon the master for the negligence of his servant under such doctrine are too obvious for illustration.

The next assignment we will consider complains of the action of the court in instructing the jury that appellee could not recover if by his own negligence he contributed to his injuries. The point urged is that, since appellant did not plead that appellee was guilty of contributory negligence, the charge placed upon appellant a burden it did not assume. Appellant, by special plea, among other matters alleged as a defense to the suit “that the accident occurred while Birdwell was testing the speed of the car at the request and under the directions of ap-pellee.” The evidence is undisputed that the ear was going the limit of its speed, and Birdwell testified that he did so at the request of appellee, who wanted to show his friends the car’s good features, and how it could run. A favored definition of contributory negligence is that it is such an act or omission of the plaintiff, amounting to a want of ordinary care and prudence, as, concurring or co-operating with the negligent act of the defendant, is the proximate cause or occasion of the injuries complained of. Texas Midland v. Monroe, 155 S. W. 973. Assuming that the testimony raised the issue set out in the pleading, then in our opinion it-was, if anything, contributory negligence, and not assumed risk, as urged by appellant in its fifth assignment of error. Routledge v. Rambler Automobile Co., 95 S. W. 749. The relation of master and servant not existing between appellee and appellant, neither any contractual relations, and appellee further being inexperienced and without knowledge in the operation of automobiles, a request that appellant’s driver test the speed of the car, if held to be assumed risk, would be to say that appellee assumed the risk of the driver’s negligence, since it must appear that he had knowledge of his negligence at the time he assumed it in order to apply that doctrine. It has been said that one who subjects himself to a known danger arising from another’s negligence would be none the less guilty of contributory negligence. G. H. & S. A. Ry. Co. v. Patillo, 45 Tex. Civ. App. 572, 101 S. W. 492; Texas Midland v. Monroe, 155 S. W. 973. Thus it follows that the facts pleaded, and which the pleader denominates appellant’s plea of assumed risk, constitute in law a plea of contributory negligence, and the court’s charge upon that issue was correct.

The sixth assignment- of error is that “the verdict of the jury is excessive.” In like manner is this ground of error set out in the motion for new trial. The assignment is insufficient, since, the excessiveness or not of a verdict being- a question of fact,- it was the duty of appellant to set out in his motion for new trial the facts supporting his claim of excessiveness, and his duty as well to subjoin to his proposition in his brief said facts by proper statement in order that we might consider same. We are not compelled to examine the entire statement of facts in order to determine whether a verdict is excessive. M., K. & T. Ry. Co. v. Fesmire, 150 S. W. 201.

The seventh assignment of error complains of the action of the court in permitting James and John Weaver to testify in effect that, after reaching Wilmer, Birdwell, upon being asked if he wanted to return to Dallas that night, replied that he did not, since he was sent there to instruct appellee to operate the ear, and intended to remain until he did learn him, and that he had the appellant company’s consent to do so. The objection is that the evidence tends to prove agency by the declarations of the agent. We think the assignment should be overruled. The evidence was not necessary to prove Birdwell’s agency, since it was not denied, but was admissible, in our opinion, as tending to establish the claim that appellee was to be taught to operate same, and that the matter of time was not agreed upon between the parties, or considered by them.

The judgment is affirmed.


source: Caselaw Access Project

author: RICE, J.

license: Public Domain

text:
    FUTCH v. SANGER.
    (Court of Civil Appeals of Texas. Austin.
    Jan. 14, 1914.
    Rehearing Denied Feb. 5, 1914.)
    1. Contracts (§ 138) — Illegality — Effect.
    The mere knowledge that money was to be used by the borrower for an illegal purpose will not, without some act in furtherance thereof, defeat the lender’s right to recover.
    [Ed. Note. — For other eases, see Contracts, Cent. Dig. §§ 681-700; Dec. Dig. $ 138.0]
    2. Contracts (§ 138) — Parties in Delicto— Relief.
    Even where a conveyance made without consideration is executed under circumstances showing both parties in delicto, but that one has a mere knowledge of the fact that the property is to be put to an illegal use, without furthering such use, equity will relieve him even to the setting aside of the conveyance.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 681-700; Dec. Dig. § 138.]
    3. Cancellation of Instruments (§ 37) — Parties in Pari Delicto — Relief. -
    A petition in an action for the cancellation of deeds as made without consideration, averring that plaintiff, with notice of defendant’s unlawful business of dealing in cotton futures, conveyed land to defendant which he' might use as collateral to obtain money to conduct such business, but not showing or alleging that plaintiff did anything in furtherance of such unlawful business, did not show plaintiff to be in pari delicto, and stated a good cause of action.
    [Ed. Note. — For other cases, see Cancellation of Instruments, Cent. Dig. §§ 66-80; Dec. Dig. 37.

    Appeal from District Court, McLennan County; Tom L. McCullogh, Judge.
    Action by J. J. Futch against Chas. L. Sanger. Judgment for defendant, and plaintiff appeals.
    Reversed and remanded.
    Sleeper, Boynton & Kendall, of Waco, for appellant. J. D. Williamson, of Waco, for appellee^

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

   RICE, J.

This suit was brought by appellant against appellee to cancel two certain deeds executed by him to appellee for two lots in the city of Waco, described by metes and bounds, and to remove cloud from title thereto, alleging-that on the 19th of November, 1912, appellant executed and delivered to appellee his two certain deeds of conveyance to said two tracts of land, the consideration recited in each being the sum of $1,-500 cash in hand paid; that at the time that said deeds were executed appellant and ap-pellee each understood, knew, and agreed that said deeds and transfers were not in fact and in truth made as bona fide deeds and conveyances, but, on the contrary, were made for the following purposes and considerations, to wit: That appellee was then, and had been for a long time prior thereto, engaged in the business of what is commonly known as a “dealer in cotton futures,” and that appellee had contracted with him as such cotton broker to sell and buy through his brokerage, and at sundry times and prices, sundry and numbers of bales of cotton, and that it was never in the contemplation of appellant and appellee that the actual delivery of said cotton should ever be made, but, on the contrary, was to be settled in dollars and cents according to the rise or fall of the market price of said cotton, and that, by reason of said buying and selling, and dealing in cotton futures, as hereinbefore ^alleged, appellee did, on or about said 19th of November, falsely and fraudulently represent to appellant that he (said Sanger) was then in great need of money, and that, if appellant would execute and deliver to him deeds to said property, he could and would use said deeds and title to said premises for security for himself in the furtherance of said business as hereinbefore alleged, and that, by reason of said representations so made by appellee, appellant did execute, sign, and deliver said deeds, but that the same was not at any time a settlement or closing up of the gambling contracts of plaintiff and defendant, or a settlement of any debt or claim due appellee by appellant. Appellant further represented to the court that the considerations recited in said deeds were false and fictitious, and were stipulated in same as a matter of form only, and in truth and in fact there was not paid the sum of $1,500, or any other amount, in either of said transfers, as recited in same, but that said deeds and conveyances were executed and delivered as a matter of accommodation from appellant to appellee. It was further alleged that said premises were reasonably worth at the time of said transfers the sum of §7,000. A general demurrer was sustained to this petition, and, appellant declining to amend, judgment was entered against him in accordance therewith, from which he has prosecuted this appeal.

The only question presented for our consideration is as to the correctness of the action of the court in sustaining said demurrer. If the transaction set out was void on the ground that it was in violation of law or public policy, then the ruling is correct; otherwise it is not.

It is not alleged that appellant had any interest in said business, or was to derive any profit or advantage therefrom, nor is it alleged that there was any agreement that the money or property was to be used for an illegal purpose, nor was it alleged that appellant made said deeds with the express intention on his part of having them used for an illegal purpose, nor was it alleged that he did anything in addition to the mere making and executing of such deeds, with the knowledge that the same could or would be used by appellee in conducting his business, and it is not alleged that said deeds were in fact used by appellee in procuring funds for conducting his business. The allegations, we think, merely show that, with a knowledge on the part of appellant that appellee was conducting an unlawful business, he executed the deeds, knowing that they would or could be used by appellee for the purpose of negotiating loans in order to carry on his business. It has been held in this state that the mere knowledge that money was to be used by the borrower for an illegal purpose when loaned will not, without further act in furtherance thereof, defeat the lender’s right to recov--ery. See Cleveland v. Taylor, 49 Tex. Civ. App. 496, 108 S. W. 1037; Lewis v. Alexander, 51 Tex. 578; Oliphant v. Markham, 79 Tex. 547, 15 S. W. 569, 23 Am. St. Rep. 363. See, also, to the same effect, Jackson v. City Nat. Bank, 125 Ind. 347, 25 N. E. 430, 9 L. R. A. 657.

In Plank v. Jackson, 128 Ind. 424, 26 N. E. 568, 27 N. E. 1117, statutes which made void notes given for repaying money loaned at the time of a wager, for the purpose of being wagered, do not apply to a note given for money borrowed and used for the purpose of future gambling in wheat, where the lender had no interest in the gambling transactions, though he knew that the borrower intended to engage in them. To the same effect- is Tyler v. Carlisle, 79 Me. 210, 9 Atl. 356, 1 Am. St. Rep. 301.

In Waugh v. Beck, 114 Pa. 422, 6 Atl. 923, 60 Am. Rep. 354, it was held that “the mere fact that the lender of money knew that it was to be used for gambling in oil is not sufficient to defeat a recovery, unless he confederated with the borrower for its unlawful use.”

In McKinney v. Andrews, 41 Tex. 363, where the plaintiff sued the defendant for the value of a wagon and oxen hired to him for the purpose of hauling cotton from Gray-son county to San Antonio, among other defenses interposed by the defendant it was alleged that the wagon and team were used, with the knowledge and consent of plaintiff’s intestate, for the purpose of transferring cotton for the Confederate states from the interior to the city of San Antonio, to be there exchanged for munitions of war to be used in carrying on war against the United States. Mr. Chief Justice Moore, in passing upon this defense, said: “The use to which the party hiring or buying purposes to himself to apply the property after he gets it, although known to the other, surely does not necessarily enter into or form any part of the contract. The mere knowledge of such purpose, which may or may not be carried into effect, seems to be too remotely connected with it to avoid the contract, or preclude a recovery upon it. But, if this is not correct, it does not follow that appellant should -not have judgment for the value of the wagon and team of oxen, which appellee, as appears from the statement of facts, admitted he had sold, and not for their hire. His contract was for their hire. No authority was given him to sell the property, and apply its proceeds to any unlawful purpose. It was for the mere temporary use to which he contemplated applying the wagon and team during the term of hiring that was tainted with illegality. Though this may avoid the contract of hiring, and preclude a recovery for the use of the wagon and team during the term for which they were hired, still, when this contract was at an end by its terms or the act of the parties, it certainly would not authorize the hirer to convert the property to his own use, or justify him in withholding it from the owner. The'consent of an owner to the:temporary use of his property for an illegal purpose certainly does not annul his title to it, and will no more warrant the party to whom it has been intrusted in converting it to his own use, or withholding it from the owner, than it would a stranger to the contract.”

The court, in Oliphant v. Markham, supra, quoting from Floyd v. Patterson, 72 Tex. 202, 10 S. W. 526, 13 Am. St. Rep. 787, says that the test whether a demand connected with the illegal act can be enforced is whether the plaintiff requires any aid from the illegal transaction to establish, his case. Applying this test in the instant ease, all that appellant was required to show in order to recover was that the deeds were made merely for the accommodation of appellee, and that no title was intended to be vested thereby, and, in order to defeat his recovery, appellee must allege and prove that the conveyance was made upon an illegal consideration. But, even if we are mistaken in this, we think that the parties were not in pari delicto, and, irrespective of whether the instruments were executory or'executed, appellant would be entitled to recover under the rules of equity. See 2 Pomeroy Eq. Jur. §§ 938 to 942, inclusive; Basket v. Moss, 115 N. C. 448, 20 S. E. 733, 48 L. R. A. 842, 44 Am. St. Rep. 463; Johnson v. Cooper, 2 Yerg. (Tenn.) 524, 24 Am. Dec. 502; Tracy v. Talmage, 14 N. Y. (4 Kernan) 162, 67 Am. Dec. 132; Wright v. Stewart (C. C.) 130 Fed. 905.

Even where the contract is executed, if the circumstances are such as to show that, though the parties are in delicto, still, if one is less guilty than the other, as where he has mere knowledge of the fact that the money or property is to be put to an illegal purpose, without doing anything else in furtherance of the unlawful act, equity will interpose and grant relief, even to the setting aside of the conveyance. Pomeroy’s Eq., supra; Tracy v. Talmage, supra.

In section 942, Pom. Eq., it is said: “Lastly, when the contract is illegal, so that both parties are to some extent involved in the illegality — in some degree affected with the unlawful taint — but are not in pari delicto, that is, both have not, with the same knowledge, willingness, and wrongful intent, engaged in the transaction, or the undertakings of each are not equally blameworthy, a court of equity may, in furtherance of justice and of a sound public policy, aid the one who is comparatively the more innocent, and may grant him full affirmative relief, by canceling an executory contract, by setting aside an executed contract, conveyance,, or transfer, by recovering back money paid or property delivered, as the circumstances of the case may require, and sometimes even by sustaining a suit brought to enforce the contract itself, or, if this be impossible, by permitting him to recover the amount justly due by means of an appropriate action, not directly based upon the contract Such an inequality of condition exists so that relief may be given the more innocent party in two distinct classes of cases.” The first as appears where the parties are equally guilty if considered by themselves alone; but there are collateral and incidental circumstances attending the transaction, rendering one» comparatively free from fault, as where imposition, oppression, duress, threats, or undue influence is used to induce the party to enter into the agreement; and, treating of the second class, the author says; “The condition also exists where, in the absence of any incidental and collateral circumstances, the contract is illegal, but is intrinsically unequal, is of such a nature that one party is necessarily innocent as compared with the other; the stipulations, undertakings, and position of one are essentially less illegal and blameworthy than those of the others.”

Reviewing the allegations of the petition, they merely declare that the plaintiff, with ■notice of the unlawful business conducted by defendant, made the conveyances with the knowledge that defendant might or could use them as collateral, for the purpose of obtaining money to conduct his business. This was no more than lending him money, with the knowledge that the same might be used in such business. It is not shown or alleged that he did anything in furtherance of said unlawful business, so that under the authorities we are constrained to believe and hold that the petition stated a good cause of action, and that the demurrer was improperly sustained, for which reason the judgment of the court belo.w is reversed, and the cause remanded.

Reversed and remanded.


author: MOURSTJND, J.

text:
    BOYNTON v. BROWN, Mayor, et al.
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 11, 1914.)
    1. Courts (§ 207) — Court oe Civil Appeals —Injunction—Jurisdiction.
    The Court of Civil Appeals has no jurisdiction to issue injunctions except in aid of its own jurisdiction, under Rev. Civ. St. 1911, art. 1592.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. § 758; Dec. Dig. § 207.]
    2. Cou&cs (§ 207) — Court oe Civil Appeals —Injunction Pending Appeal.
    Complainant brought mandamus to compel a city to order an election submitting the question whether a commission should be chosen to frame a new charter, and, notwithstanding proceedings were instituted before trial for an election to amend the existing charter, complainant permitted the mandamus proceeding to go to trial without alleging any illegality in the proposed election or. applying for an injunction against the holding thereof. Mandamus having been denied, complainant appealed. Held, that complainant was not entitled to an injunction sued out of the Court of Appeals to restrain the election on the proposed amendments on the theory that, if the amendments were adopted, it would prevent the framing of a new charter for two years, as provided by Acts 33d Leg. c. 147, in case he was successful on the appeal.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. § 75S; Dec. Dig. § 207.]
    Appeal from District Court, Bexar County; S. G. Tayloe, Judge.
    Application for mandamus by Alexander Boynton against Clinton G. Brown, Mayor, and others. Judgment for defendants, and plaintiff appeals and applies for an injunction.
    Application dismissed.
    E. P. Lipscomb,- of San Antonio, for appellant. Geo. R. Gillette and R. J. McMillan, both of San Antonio, for appellees.

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

   MOURSTJND, J.

The application to this court for the issuance of an injunction restraining the election ordered to be held on February 24, 1914, recites the bringing of the suit for mandamus in the trial court to compel the city to order an election submitting the question, “Shall a commission be chosen to frame a new charter?” the judgment of the trial court refusing the relief prayed for, the appeal to this court, and then recites that, notwithstanding the pendency of this litigation, respondents, for the very purpose of defeating same and rendering fruitless any results thereof, have called an election to be held on February 24, 1914, for the purpose of voting on certain proposed amendments to the existing charter of the city, and it is alleged that, under chapter 147 of the Acts of the Thirty-Third Legislature, no city charter shall be amended, altered, or repealed oftener than every two years, and therefore, if said amendments are carried, no further change can take place in the charter within two years, and, if this court should hold with appellant upon the questions raised upon his appeal, our judgment would be rendered nugatory by reason of the said election having been held and the amendments adopted. It is also alleged that said election ordered for February 24, 1914, is unauthorized and sought to be held under an invalid ordinance, and various reasons are urged why the same should not be permitted to be held.

This court has no jurisdiction to issue injunctions except in aid of its own jurisdiction. Article 1592, Revised Statutes 1911; Hubbart v. Bank, 55 Tex. Civ. App. 504, 119 S. W. 711; Railway v. Hornberger, 141 S. W. 311; s. c. (Sup.) 157 S. W. 745; Dubose v. Woods, 162 S. W. 3; Williams v. Wood, 162 S. W. 1031, decided this term, but not yet officially reported.

The record in this case discloses that the ordinance ordering the election for February 24, 1914, was passed on January 15, 1914, after 20 days’ notice had been given by publication; that when appellant on January 19, 1914, filed his petition for mandamus in the trial court he knew,' or should have known, that such election had actually been ordered; that only incidentally, as a reason for issuance of mandamus, was such proposed election mentioned in his petition, his allegation being that amendments to the charter had been surreptitiously and illegally prepared by the defendants, and they had stated that they would call an election to be held on or about February 24, 1914, for the purpose of voting on said amendments, and that the holding of the election would “confuse and make uncertain the charter of the city and the operations of the government thereof”; that on January 28, 1914, he permitted his case to go to trial without alleging any illegality in the proposed election or applying for any relief by injunction against the holding thereof. Had the trial court on January 28, 1914, granted the petition for mandamus as prayed for, the election ordered in obedience to such judgment would have taken place under the law not less than 30 nor more than 90 days after the passage of an ordinance calling same and its publication. See Acts 33d Leg. e. 147, § 2.

Such election would have been held after-February 24, 1914, and if the amendments had been carried on February 24, 1914, according to appellant’s contention, the remedy he would have procured would have been of no avail to him if the report of the charter commissioners was adopted at an election held within two years from February 24, 1914. Appellant is chargeable with notice of all this at the time he let his case go to trial in the district court. If we decide there is merit in his appeal and reverse and remand his ease, and the district court ultimately grants his prayer for mandamus, he will still have procured the same relief he would have procured had the court granted his prayer in the first instance, and such relief will be just as effective or ineffective, as the case may be, as it would have been had it been granted at once. No change in the situation has taken place since the case was tried in the lower court. We have the right to use our power to keep the status of the controversy in such condition that if appellant wins he will not be in worse condition than if he had procured judgment at once, but we cannot enlarge the relief he asked for and thereby deprive appellees of a right they would have had if the trial court had granted appellant’s prayer. Our jurisdiction extends no further than to protect litigants in rights which were in controversy in the lower court, and which are to be passed upon by this court upon the appeal from the judgment of the lower court.

We have ho jurisdiction to grant the injunction prayed for, and the application will be dismissed.


author: KEY, C. J.

text:
    INTERSTATE FINANCE CO. v. HOSCH.
    (Court of Civil Appeals of Texas. Austin.
    Jan. 24, 1914.)
    CORPORATIONS (§ 428) — NOTICE—EQUITABLE Defense — Bills and Notes.
    In an action on accepted drafts, the fact that two persons were interested in both the drawer corporation and the plaintiff corporation, one as an incorporator in both and the other as an incorporator in one and a director in the other, did not charge plaintiff with knowledge of defendant’s equitable defense, where not only was it not shown that either of such persons had any knowledge or notice of the facts constituting such defense, but it was not shown that either had any authority to represent either corporation in the matter involved.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1748-1761; Dec. Dig. § 428.]
    Appeal from Coleman County Court; T. J. White, Special Judge.
    Action by the Interstate Finance Company against W. J. Hosch. From a judgment for defendant, plaintiff appeals.
    Reversed and rendered.

      Critz & Woodward, of Coleman, for appellant. C. R. Sutton, of Marfa, for appellee.

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

   KEY, C. J.

Appellant brought this suit against appellee, seeking to recover upon four accepted drafts. Defendant’s answer included a general demurrer, general denial, and special plea alleging that the drafts referred to were given as a consideration for certain merchandise, and that a fraud had been perpetrated upon him in reference thereto, and that therefore he was released from liability upon the drafts. The pleadings raised the issue as to whether or not the plaintiff was a bona fide holder for value and without notice and entitled to-protection as such.

There is no statement of facts, and the case is submitted in this court upon the trial judge’s findings of fact, which findings show that appellant was a bona fide holder of the drafts referred to and entitled to enforce their payment unless the ¡following facts charged it with notice of the equitable defense relied on by appellee, and sustained by the trial court, viz.: (1) The drafts sued on were drawn by the Commercial Jewelry Company, and were accepted by appellee; (2) in due course of trade and for a valuable consideration, they were transferred and assigned to appellant before maturity; (3) at the time of such transfer, none of the officers, agents, or employes of appellant had any knowledge of any of the facts constituting appellee’s equities; (4) both appellant, Interstate Finance Company, and the Commercial Jewelry Company are private corporations, and A. J. Parker was at the time referred to an incorporator in both corporations, and S. I. Redfield was an incorporator in the Finance Company and a director in the Commercial Jewelry Company; (5) it was not shown that either Redfield or Parker had any knowledge or notice of the equities relied on by appellee at the time of the transaction referred to or at any other time.

The trial court held that on account of Parker and Redfield’s relation to and connection with the two corporations, appellant, who purchased the drafts from the other corporations, was charged as matter of law with notice of appellee’s equitable defense. That ruling is assigned as error, and we sustain the assignment. A private corporation is a legal entity, separate and distinct from its incorporators, officers, and directors. The affairs of such corporations are controlled and conducted by, and they act through, their boards of directors, or other governing body, or certain designated officers or designated agents, employed by such governing bodies or officers. Therefore to charge a corporation with notice it must be made to appear that some one having authority to act for the corporation in the matter referred to, had knowledge of the facts relied on to constitute notice. This case falls short of meeting that requirement, because (1) it was not shown that either Parker or Redfield had any authority to represent either corporation in reference to the matter here involved; and (2) it was not shown that either of them had any knowledge or notice concerning the facts relied on as constituting appellee’s equitable defense. In fact, if they had such knowledge, there are authorities which hold that the defense relied on would not be available. Judge Thompson, in section 5214 (vol. 4) of his treatise on Corporations, says: “Where a person is a director in two corporations, which have dealings with each other, his knowledge of the affairs of one of the corporations is not imputable to the other for the reason that it will not be his duty to disclose to the board of directors of one corporation the affairs of the other, but the contrary. Thus, two companies had in common two directors and a solicitor. One company, in order to buy up its own shares, borrowed money of the other through the agency of one of these directors and the solicitor; but the company lending the money was nevertheless unaffected with notice of the unlawful use to which the loan was to be applied.” And in 10 Cyc. p. 1065, it is said: “We have seen that one who is a director in two corporations will not be permitted to represent both of them in transactions in which their interests are conflicting. Where a common director of two corporations is thus improperly acting, a notice to him of the affairs of one of- the corporations will not be Imputable to the other, for the reason that it will not be his duty to disclose it, but the _ contrary.”

But, as said before, in the case at bar it was not shown that either Parker or Red-field acted in this transaction for either corporation or had any authority so to do.

The judgment of the trial court is reversed, and judgment here rendered for appellant for the amount sued for.

Reversed and rendered.


author: MOURSUND, J.

text:
    GALVESTON, H. & S. A. RY. CO. v. SHORT.
    (Court of Civil Appeal of Texas. San Antonio.
    Jan. 21, 1914.
    On Motion for Rehearing, Feb. 18, 1914.)
    1. Carriers (§ 380) — Passenger's Action for Ejection — Stuttoibncv oe Petition.
    A petition alleging that plaintiff purchased a ticket beyond the division, boarded the train, surrendered Ms tiaket to an agent of defendant before the train reached the division line, that it was not his fault that he had no ticket showing his right to continue his passage to destination, that, although he explained the matter, the conductor intimated that he was trying to cheat the company, and in an abusive and insulting manner put him off the train, whereupon he tendered the fare, but was not permitted to board the train until he paid a greater amount under protest, was good as against a general demurrer.
    [Ed. Note. — Eor other cases, see Carriers, Cent. Dig. §§ 1464-1466, 1469, 1470, 1472; Dec. Dig. § 380.]
    2. Cabbiebs (§ 380) — Passenger’s Action eoe Ejection— Sufficiency ox Petition— Damages.
    Such petition concluding with a prayer for $900 actual damages, of which $1.05 was the overcharge paid defendant, and the remainder for damages as set out in the petition, sufficiently alleged damages beyond the overcharge.
    [Ed. Note. — Eor other cases, see Carriers, Cent. Dig. §§ 1464-1466, 1469, 1470, 1472; Dec. Dig. § 380.]
    3. Cabbiebs (§ 384) — Action xob Ejection— Instructions — Contributory Negligence.
    In a passenger’s action against a railroad for damages for ejection, a charge failing to negative plaintiff’s right to recover if he was negligent in failing to buy another ticket, after surrender to an employé, who negligently failed to return to plaintiff that part entitling him to passage beyond the end of the division, was not erroneous where it did not exclude that defense, which was submitted later in the charge.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1497-1500; Dee. Dig. § 384.]
    4. Cabbiebs (§ 384) — Action xob Ejection— Instbuctions — Possession ox Ticket.
    In such action, -a charge that one of defendant’s employés might not deprive plaintiff of his ticket, which the conductor had the right to examine or collect, and that the conductor, though ignorant of its surrender, save for plaintiff’s explanation, could not eject plaintiff on refusing to produce a ticket or pay his fare, was objectionable as tending to lead the jury to believe that, if plaintiff delivered his ticket to an employé not authorized to receive it, the conductor, after his explanation, could not eject him.
    [Ed. Note. — Eor other cases, see Carriers, Cent. Dig. §§ 1497-1500; Dee. Dig. § 384.]
    5. Cabbiebs (§ 370) — Peesons Authorized to Take Tickets — Statute.
    Under Rev. St. 1895, arts. 4503, 4504, providing that no conductor or ticket collector without a designated badge on his hat or cap shall demand or be entitled to receive any ticket, a passenger delivering his ticket to an employs without such badge voluntarily takes the risk that such employs was not authorized to receive it, and is not excused from producing it when demanded by proper authority.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 1459; Dee. Dig. § 370.]
    6. Cabbiebs (§ 370) — Ejection—Tickets— Notice as to Tebms.
    A passenger receiving a ticket in two parts was chargeable with notice that it was necessary for him to have the part calling for the last part of the passage in order to complete his journey.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 1459; Dec. Dig. § 370.]
    7. Cabbiebs (§ 370) — Ticket—Suebendee.
    A passenger entering the train with a good ticket, and giving it to an employé, who was authorized to take it, but was required to return a part thereof, may s^nd upon his right to remain upon the train until carried to his destination, and need not anticipate that the employés will not protect him in such right.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 1459; Dee. Dig. § 370.]
    8. Appeal and Ebbob (§ 73'1) — Assignments ox Ebbob — Suxxiciency.
    Assignments of error merely asserting that the court erred in overruling a motion for a new trial, because “the verdict of the jury was not supported by the evidence, and is contrary to the law and the evidence,” and because it is excessive, based upon paragraphs of the motion for new trial equally general, were too general to be considered.
    [Ed. Note. — For other cases, see Appeal and' Error, Cent. Dig. §§ 3017-3021; Dee. Dig. § 731.]
    On Motion for Rehearing.
    9. Careieb (§ 384) — Ejection ox Passengeb —Instbuctions.
    In an action against a carrier for ejection of a passenger, an erroneous charge that, if plaintiff negligently delivered his ticket to a person not authorized to receive it, and who did not return it to him, the employés of defendant had the right to request him to leave the train, and, upon his refusal, to eject him, was calculated to lead the jury to believe that an unauthorized employé was meant.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1497-1500; Dec. Dig. § 384.]
    10. Pleading (§ 432) — Insufficiency—Expect ox Special Exception.
    Failure of the petition to allege necessary facts, thereby rendering it subject to special exception, will not excuse plaintiff from proving such facts.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 1442-1450, 1485; Dee. Dig. § 432.]
    11. Cabbiebs (§ 380) — Ejection ox Passen-GEE — AN S WEE — CONSTBU CTION.
    A special answer, in an action against a carrier for ejection, to the effect that, if plaintiff bought a ticket between two points, one part was detached and retained by defendant’s servant, and' the other returned to plaintiff, and, if he did not present it to the conductor, it was his own fault, as he had either lost or misplaced it, could not be construed as an admission that the ticket was delivered to an agent authorized to receive it.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1464^-1466, 1469, 1470, 1472; Dec. Dig. § 380.]
    Appeal from Seguin County Court; J. M. Woods, Judge.
    Action by H. E. Short' against the Galveston, Harrisburg & San Antonio Railway Company. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    Emil Mosheim, of Seguin, for appellant. H. M. Wurzbaeh, of Seguin, for appellee.

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

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

   MOURSUND, J.

H. E. Short sued the Galveston, Harrisburg & San Antonio Railway Company, alleging that on June 5, 1912, he purchased from the agent of said company at Uvalde a ticket for passage from that town to Seguin, Tex., and upon the same day boarded defendant’s train, and surrendered his ticket to the servant and agent of the company before the train arrived at San Antonio, Tex., and that it was no fault of plaintiff’s that he was without evidence showing the payment of his fare, and of his being entitled to a continuous passage to Seguin, Tex.; that some time before the train arrived at Marion the conductor in charge of defendant’s train demanded of plaintiff his ticket or the fare, whereupon plaintiff explained fully his purchase of the ticket and. its surrender while sitting in the observation car; that the conductor replied in substance that such explanation did not go with him, and that there had been no observation car on said train between Uvalde and San Antonio, and plaintiff would either have to pay his fare or get off the train; “that said conductor, in making said remarks, intimated that plaintiff was not telling the truth about having paid his transportation, and intimated and insinuated that plaintiff was dishonest, and was trying to defraud the railroad companythat the conductor acted in a haughty, abusive, and insulting manner, and his statements were made in the hearing of the passengers, and caused plaintiff great mental. anguish, humiliation, and shame ; that when the train neared Marion the conductor came to plaintiff a second time, accompanied by a negro porter, and informed plaintiff that, unless he paid his fare, he would be put off at Marion, whereupon plaintiff again told said conductor of the payment of his fare, and showed a grip check as evidence thereof, and that he had surrendered his ticket to the agents of the company; that thereupon the conductor took plaintiff by the arm and, accompanied by the negro porter, marched him off the train; that plaintiff, before being put off, tendered the conductor 50 cents, which amount was more than the fare from Marion to Seguin, requesting to be carried to Seguin, which tender was refused, and plaintiff was put off the train, and not permitted to board the same until he agreed to pay $1.05, which he paid under protest; that he informed the conductor he had only $1.05, and needed some of that to get home, but the conductor was obdurate and insisted upon payment of said amount before he would permit plaintiff to continue on his journey. Plaintiff prayed for $900 actual damages, of which $1.05 was for amount of overcharge paid defendant, and the remainder for damages as set out in the petition.

Defendant answered by general demurrer, two special exceptions, a general denial, and a special answer, to the effect that San Antonio was the end of a' division, at which place the train crew is changed upon trains arriving from Uvalde, which was well known to plaintiff, and tickets from Uvalde to Se-guin consist of two parts, but not separated, and when taken up by the conductor between Uvalde and San Antonio only that part is detached which entitled the holder to passage from Uvalde to San Antonio, and the remainder of the ticket is returned to the passenger to be presented to the crew in charge of the train from San Antonio to Seguin, and, if plaintiff purchased a ticket on June 5,1912, one portion thereof was detached and retained by defendant’s servants, and the other returned to plaintiff, and it was plaintiff’s fault that he did not present same to the conductor en route from San Antonio to Seguin; that, if he did not possess it, he had lost or misplaced it, and was required under the law to pay the regular fare from San Antonio to Seguin; that, if in fact the ticket was presented to a servant of defendant, as alleged by plaintiff, and such servant refused or negligently failed to return the part entitling plaintiff to passage from San Antonio to Seguin, plaintiff could not take advantage of the negligence of such servant or excuse himself from not securing such portion of said ticket or another ticket, and plaintiff was guilty of contributory negligence in failing to take such steps, which bars him from recovering any damages except $1.05 overcharge.

The trial resulted in a verdict and judgment for plaintiff for $200. Defendant appealed.

By the first assignment of error complaint is made because the general demurrer was not sustained. We are of the opinion that the petition was sufficient as against a general demurrer. The assignment is overruled.

By the second assignment camplaint is made because defendant’s first special exception was overruled. The exception was to the effect that the petition contained no allegation of damages beyond the overcharge of $1.05, wherefore defendant prayed that the plaintiff’s prayer for the sum greater than said amount be stricken out. The petition contains no express statement that, by reason of his ejection from the train and the alleged insults accompanying same, he was damageu. in the sum of $898.95; but the prayer is so worded that it amounts to an allegation that, by reason of the matters stated in the petition, plaintiff suffered actual damages to the amount of the difference between $900 and the $1.05 paid defendant by plaintiff. The pleading is awkwardly drawn in this respect; but we think the same was sufficient.

The third assignment is without merit, and is overruled.

The fourth assignment is also without merit. It is true that the portion of the charge objected to fails to negative plaintiff’s right to recover, if the jury finds that plaintiff was guilty of contributory negligence in failing to buy another ticket; but it does not exclude the defense that plaintiff may have delivered his ticket to a person not authorized to receive the same, and such defense is expressly thereafter presented in the charge, and the correctness of such presentation is assailed by an assignment of error. The question whether the court should have submitted the issue whether plaintiff was guilty of contributory negligence in failing to buy another ticket is raised by an assignment complaining of the refusal of a special charge, and will be hereinafter discussed.

By the fifth assignment complaint is made of the following part of the charge: “Xou are charged that one employé of the defendant may not, for any reason, deprive plaintiff of his ticket, or tlie evidence thereof, which another employé has the right to examine or collect; that another employé, although ignorant of the transaction, save for the explanation given hy plaintiff, may not eject the plaintiff from the train upon his failure to produce a ticket or pay his fare.” In the assignment several objections are urged to this language; but the only proposition accompanying the same urges the objection that it lays down the rule that the conductor must under all circumstances accept the explanation or verbal statement of the passenger to the effect that he purchased.a ticket, and the circumstances of its disappearance. The charge was incorrect, in that it was calculated to lead the jury to believe that, if plaintiff delivered his ticket to an employé not authorized to receive same,’ and explained to the conductor how he came to be without a ticket, the conductor had no right to eject him. The assignment is sustained.

The sixth assignment complains of the charge of the court, in that it provided that, if plaintiff, by reason of want of reasonable and ordinary care, delivered his ticket to a person not authorized to receive the same, after which it was not returned to him, the employés of defendant had the right to request plaintiff to leave the train, and upon his refusal so to do to eject him. The contention is that, if plaintiff delivered his ticket to a person not authorized to receive it, he would not be excused from the production thereof, and that the court should have so charged. We sustain this contention. Plaintiff did not show any facts excusing the delivery of his ticket to the employé who took it up. I-Ie admitted that the person was not a conductor, and in fact he did not know what position he held, although he was in uniform. It was proved on the part of defendant that a brakeman by the name of Stevens was authorized by the conductor to take up the tickets in the observation car and bring them to him, but not to detach any portion thereof, and that on the trip in question a ticket from Uvalde to Seguin was delivered to him by the brakeman, and he detached a portion, and returned the ticket to the brakeman. The brakeman testified that, if he took up any ticket from plaintiff, he returned to him the portion necessary to secure passage to Seguin; that he collected a ticket that day calling for passage from Uvalde to Seguin, which ticket he received in the observation car. 1-Ie did not testify that he called upon every one in the observation car, and that all gave him tickets. He could not identify plaintiff as a person from whom he received a ticket that day, nor could plaintiff identify him as the person to whom he gave his ticket. Plaintiff did not testify that no other person collected any tickets in the observation car than the employé who received his ticket, and took the number of Mr. Williams’ pass, nor that he and Williams were the only passengers in said car who got on at Uvalde. The evidence fails to show that only one ticket was sold on that day for passage from Uvalde to Seguin. It is not conclusively shown that the portion of the ticket produced by defendant upon the trial was not delivered to the defendant’s employes by another person. The evidence is very persuasive to the effect that the plaintiff’s ticket was delivered to the brakeman, Stevens, who was the only employé whom the conductor authorized to receive tickets; but it does not show such fact with such eonclusiveness as to enable this court to say that the trial court could have instructed the jury to that effect. Our statutes require that each servant of a railroad employed in a passenger train shall wear upon his hat or cap a badge indicating his office and the initial letters of the company, and that no conductor or collector without such badge shall demand or be entitled to receive any fare, toll, or ticket. Articles 4503 and 4504.

Plaintiff, in delivering his ticket to an employe without the proper badge on his hat or cap, voluntarily took the risk that such employé might not be authorized to receive his ticket. He could have declined to give up his ticket because demanded by a person having no authority to receive the same. If he delivered it to an employé not authorized to receive it, he would be in no better position than if he had lost it, and the court’s charge, therefore, was erroneous. In order to make out his case, it was necessary for him to show that he delivered the ticket to a person authorized to receive same. Not having shown such fact by evidence so conclusive as to authorize an instruction to that effect, the court erred in charging in effect that, even though he did deliver the same to a person not authorized to receive it if he was not guilty of negligence, he would be excused from the consequences of such delivery.

Assignments 7, 8, and 9 relate to the issue of contributory negligence. The contention, briefly stated, is that Short was guilty of contributory negligence in not purchasing a ticket from San Antonio to Seguin, after vainly searching for the employé who received his ticket. A peremptory charge was requested upon this theory, and two special charges submitting the issue to the jury were also requested.

While plaintiff testified that he did not know that a different train crew would take the train on from San Antonio, yet, his ticket being in two portions, he was chargeable with notice that it was necessary for him to have the portion calling for passage from San Antonio to Seguin in order to complete his journey. That he knew this is evidenced by the fact that he demanded of the employé, subsequent to the taking up of his ticket, the return of said portion thereof, and tile promise to return .same not being fulfilled, be made a search for the employs as the train neared San Antonio; bis purpose being to get sucb portion of tbe ticket. But this is not a case where a person enters a train without a ticket, or with one which he knows will not be accepted.

Plaintiff entered the train with a good ticket, and remained in the same until ejected. If he gaye that ticket to the person authorized to receive same, whose duty it was to return a portion thereof, plaintiff being required to give the entire ticket up because not allowed to detach any portion thereof, he did all that was required of him, and according to the weight of authority could stand upon his right to remain upon the train until carried to his destination, and was not required to anticipate that defendant’s employés would not protect him in his rights. Had he bought another ticket, and put in a claim for the amount, he might have received the answer that the employés had made arrangements with the conductor of the second crew to perform the contract on the part of the company. Railway v. Lucas, 105 Tex. 82, 144 S. W. 1128, 39 L. R. A. (N. S.) 512; T. & P. Ry. Co. v. Payne, 99 Tex. 46, 87 S. W. 330, 70 L. R. A. 946, 122 Am. St. Rep. 603; Cherry v. Railway Co., 2 L. R. A. (N. S.) 695 (case note); Railway v. Wiseman, 136 S. W. 793; Sprenger v. Tacoma Traction Co., 43 L. R. A. 716 (case note). The assignments are overruled.

The tenth and eleventh assignments will not be considered because too general. They merely assert that the court erred in overruling the motion for new trial, because “the verdict of the jury was not supported by the evidence, and is contrary to the law and the evidence,” and because the verdict of the jury is excessive. These assignments are based upon paragraphs of the motion for new trial which are equally general. Connor v. Saunders, 9 Tex. Civ. App. 56, 29 S. W. 1140; Jenkins v. American Co. (Sup.) 2 S. W. 726; Musick v. O’Brien, 102 S. W. 458; Texas Land & Irrigation Co. v. Sanders, 113 S. W. 558; Railway v. Miller, 124 S. W. 109; Railway v. McVey, 81 S. W. 991.

The judgment is reversed, and the causé remanded.

On Motion for Rehearing.

Appellee contends that the portions of the charge held erroneous in discussing the fifth and sixth assignments were not calculated to lead the jury to believe that an unauthorized employé was meant. The charge given is subject to the construction that plaintiff was acting within his rights in giving the ticket to an unauthorized agent, provided he was not guilty of negligence in so doing. True, the term “employé” is used, and not the words “authorized employé” or “unauthorized employé” ; but when the court, after using the term “employé” many times, finally tells the jury that, if plaintiff, by reason of his want of reasonable and ordinary care, delivered his ticket to a person not authorized to receive it, defendant’s employés had the right to ask him to leave the train, and, upon his refusal to do so, to eject him, it could be construed in no other way than as an instruction that, if the employé mentioned throughout the charge was not authorized to take up the ticket, plaintiff’s rights would not be affected by such want of authority, unless he was guilty of negligence in delivering his ticket to such employé.

It is also contended that no issue was made as to delivery of ticket to an unauthorized agent. It appears from the charge of the court that he considered the issue in the case,.but was of the opinion that, even if the ticket was delivered to an unauthorized agent, it would not bar a recovery,, unless such delivery constituted negligence on the part of plaintiff. Plaintiff alleged that he surrendered his ticket to the servant and agent of the railroad company before the arrival of the train at San Antonio, but did not allege that such servant or agent was one authorized to take up tickets. Such allegation should have been made, and it may be that we erred in not holding that a general demurred should have been sustained because of the failure to make same, for it seems clear that, in order to make out his case, and as a basis for showing that his ejection was not warranted, he should allege that he delivered his ticket to an agent authorized to receive same, and therefore was excused from delivering it when it was demanded by the conductor as alleged by him. The petition should be amended in this respect before another trial.

But, if the petition was only subject to a special exception, plaintiff, because of such omission, would not be excused from proving the facts necessa'ry to make out his case.

Defendant filed a general denial and a special answer. In the special answer it stated that, if plaintiff bought a ticket entitling him to passage from Uvalde to Seguin on June 5, 1912, one portion was detached and retained by defendant’s servants, and the other returned to plaintiff, and, if he did not present it to the conductor, it was his own fault, as he had either lost or misplaced it. Appellee contends that this is an admission that the ticket was delivered to an agent authorized to receive same. We do not so construe it, and it is clear from what follows that it was not even intended to admit that any employé received plaintiff’s ticket, authorized or not authorized, as the further allegation is made that, if it be true that the ticket was presented to some “clerk” of defendant, and such servant failed to return the ticket, plaintiff was negligent in not securing such ticket from such servant, or purchasing another one. We do not think it would be just to construe this answer as an admission that the ticket was received by Brakeman Stevens or the conductor on the train from Uvalde to San Antonio. It was not so construed by the trial court, nor was it intended as such an admission by the pleader.

The motion is overruled.


author: CARL, J.

text:
    ST. LOUIS, B. & M. RY. CO. v. FIELDER.
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 14, 1914.
    Rehearing Denied Feb. 18, 1914.)
    1. Carriers (§ 321) — Injury to Passenger-Assault — Apparent Danger.
    Where, in an action for injuries to a passenger, plaintiff’s testimony showed that a trainman made an unwarranted assault on him while he was doing nothing but walking up to meet the trainman who was returning from the baggage car, while the train was making a stop at the station, and defendant’s version was that plaintiff was making an assault on the trainman and conductor at the time plaintiff was struck, there was no issue of the right of self-defense arising from apparent danger in the case, and the court did not err in refusing to charge thereon.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1247, 1326-1336, 1343; Dec. Dig. § 321.]
    2. Evidence (§ 126) — Declarations oe Persons Injured — Res C-estas.
    In an action for injuries to a passenger by being assaulted by a trainman, evidence that immediately after plaintiff got up he said that the trainman, conductor, and baggageman all jumped on him, and pushed him off the platform backward, and almost broke his neck, was admissible as res gestee, and was not a self-serving declaration.
    [Ed. Note. — For other cases, see Evideneet Cent. Dig. §§ 372-r376; Dec. Dig. § 126.]
    3. Trial (§ 94) — Objections to Evidence.
    An objection to evidence, in a motion to strike out the answer, failing to state the ground of objection is insufficient.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 247; Dec. Dig. § 94.]
    4. Appeal and Error (§ 1170) — Rulings on Evidence — Prejudice.
    In an action for injuries to a passenger ■by being struck by' a trainman, the overruling of an objection to a question asking plaintiff whether he knew the trainman’s reputation at the time, to which he answered that he had heard he was a drinker, was not ground for reversal, even if error at all, under Court of Civil Appeals rule 62a (149 S. W. x), providing that a judgment shall not be reversed for error, unless the court shall be of the opinion that the error amounted to a denial of appellant’s rights so' as to cause the rendition of an improper judgment.
    [Ed. Note. — For other, cases, see Anpeal and Error, Cent. Dig. §§ 4032, 4066, 4075, 4098, 4101, 4454, 4540-4545; Dec. Dig. § 1170.]
    5. Trial (§ 83) — Evidence—Objections.
    An objection that offered evidence is incompetent, irrelevant, and immaterial is not sufficiently specific, unless the real- nature of the objection is so plain that the general phrase is sufficient to indicate it.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 193-210; Dec. Dig. § 83.]
    6. Carriers (§ 247) — Passengers—Relation.
    Plaintiff boarded a railroad train, tendered the conductor a $20 bill to pay his fare; but the conductor could not change it. Plaintiff alighted at an intervening station to get the money to pay the fare to that point, and did pay it. He testified that he told the conductor he was going further as he alighted from the train, but intended to use a pass to complete his journey. The pass had expired; but he did not know this, and testified that, if his attention had been called to that fact, he would have paid his fare out of the money he had. While the train was waiting at this station plaintiff was assaulted by a trainman and injured. Held, that plaintiff’s temporary departure with a view of returning and continuing the journey did not destroy the relation of carrier and passenger, and that the carrier owed him the degree of care which it owed to a passenger at the time of the assault.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 984-993; Dec. Dig. § 247.]
    Appeal from District Court, Nueces County; W. B. Hopkins, Judge.
    Action by D. T. Fielder against the St. Louis, Brownsville & Mexico Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    See, also, 51 Tex. Civ. App. 244, 112 S. W. 699.
    Claude Pollard and Robert W. Stayton, both of Kingsville, H. R. Sutherland, of Corpus Christi, and West & McMillan, of San Antonio, for appellant. J. C. Scott, C. R. Scott, and Boone & Pope, all of Corpus Christi, Dougherty & Dougherty, of Beeville, and H. S. Bonham, of Austin, for appellee.

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

   CARL, J.

Appellee, D. T. Fielder, sued the appellant, St. Louis, Brownsville & Mexico Railway Company, and alleged, substantially: That on January 11, 1905, he was a passenger on one of appellant’s trains from Katherine en route to Corpus Christi, Tex. That he did not obtain a ticket at Katherine, but offered to pay his fare to Kingsville; but the conductor, Burke, could not change a $20 bill tendered. He thereupon came on to Kingsville, got off to get the change to pay his fare, and so informed the conductor, and also of his intention to continue his journey to Corpus Christi on the same train. He further alleges, however, that the reason he did not procure a ticket for the remainder of the trip was because he had a pass, as deputy sheriff of Nueces county, from Kingsville to Corpus Christi, upon which he intended to ride. The pass had expired December 31, 1904; but he says he did not know that fact, and would have paid his fare when his attention was called to that. At Kingsville a difficulty occurred between the conductor, Burke, and Carnahan, employés of the railway, on the one hand, and appellee, on the other, in which he received the injuries complained of. The railway answered by general demurrer, general denial, and special pleas, among which was one raising the issue as to the relation of passenger and carrier, etc.

It will not be necessary to further state the case, because it has been appealed once before, and is reported in 51 Tex. Civ. App. 244, 112 S. W. 699. That appeal is here referred to for a further statement.

The court charged the jury on the law of self-defense; but complaint is made in the first assignment that the court refused appellant’s reguested charge No. 2, on apparent danger.

Let us see what appellant’s witnesses say: Carnahan says: “As I came back I met Mr. Fielder about middle way of the baggage car, and he says, ‘Carnahan, you insulted met-ete., T will mash your face,’ drawing back in the act of what his threats were. Then I struck Mr. Fielder with all the force I had in me — to carry out his expression he drew back, and just as he did I struck him with all my force and effect. Then he fell on the edge of the platform.” Burke, the conductor, says: “My friend (Carnahan) was in danger. When I first discovered that Fielder was about to hit Carnahan, I was just passing behind him. Fielder had his right arm drawn back. I saw Fielder in the act of hitting Carnahan.”

In this state of the evidence, viewed by appellant’s witnesses who were engaged in the affray, it is contended the charge on apparent danger should have been given.

In Cavil v. State (Cr. App.) 25 S. W. 628, Judge Simkins says: “If the deceased had drawn his knife, and was threatening to strike defendant, as he states, there was no question of apparent danger; but it was real danger, and the charge was correct in this respect.”

In Moody v. State (Cr. App.) 59 S. W. 894, the defendant testified that Wright, the injured party (it was an assault to murder case), after using angry words to the defendant, Moody, pushed defendant back with his left hand or fist, and he (Moody) then saw a large knife open in his right hand, and the very instant Wright pushed him back Wright raised his right hand as if to cut him; that, when Wright pushed him back, defendant cut him; that he cut Wright to protect himself. Judge Brooks, in that case, held that it was a clear case of real danger, viewed from the defendant’s testimony, and that the question of apparent danger was not in it. The distinction between an actual and a threatened attack is clearly made by Judge Hurt in Boddy v. State, 14 Tex. App. 528, and is followed in a lengthy opinion by the Court of Criminal Appeals in Payton v. State, 60 Tex. Cr. R. 475, 132 S. W. 127. See, also, Simmons v. State, 55 Tex. Cr. R. 441, 117 S. W. 141; Casey v. State, 54 Tex. Cr. R. 586, 113 S. W. 534.

It is known to all well-informed lawyers that a party has the right to defend on apparent danger, and, if the facts justify, it is a complete defense; but, when real danger appears clearly in the case, there is no necessity for a charge on apparent danger. In the absence of the real, apparent danger may be shown; but the converse is not true. If we accept Fielder’s statement, Carnahan made an unwarranted assault on him when he was doing nothing but walking up to meet Carnahan, who was returning from the baggage car; and, if we take the version of Burke and Carnahan, Fielder was actually making an assault. So, in either event, apparent danger is not in the ease. Appellant cites Croft v. Smith, 51 S. W. 1090, a case where there was absolutely no real danger, but was ápparent danger, viewed from Croft’s standpoint. That case is not applicable to the case at bar. The court did not err in ^refusing this charge, and the second assignment is also overruled.

The third assignment complains of the action of the court in permitting the witness H. M. Fielder to testify by deposition: “What did D. T. Fielder say after he got up off the ground, after the fight?” “After D. T. Fielder got up off the ground he said Carnahan, and Burke, and the baggageman all jumped on him, and pushed him off the platform backward, and almost broke his neck.” Objection was made to this on the ground that it was hearsay, and a self-serving declaration, and because it was not pleaded that a baggageman took part in the fight. The court qualifies the bill by saying that the charge to the jury limited the right of recovery to an assault made by Burke and Carnahan. The court doubtless admitted this testimony upon the theory that it constitutes a part of the res geste.

None of the statement would be admissible upon any other theory than as res gestse, and if part of it is admissible, all of it is. Otherwise it was hearsay, and also a self-serving declaration. But H. M. Fielder was but 30 steps away, and when he got to his brother he was just getting up. Plaintiff says as he was getting up he saw his brother coming around the corner. It was at the place of the difficulty, and just as the injured party was getting up. The courts of this state have held so many times that statements like this made under similar circumstances constitute a part of the res geste, and are therefore admissible, that we deem a lengthy discussion unnecessary. I. & G. N. Ry. Co. v. Anderson, 82 Tex. 516, 17 S. W. 1039, 27 Am. St. Rep. 902; G., C. & S. F. Ry. Co. v. Batte, 94 S. W. 345, also 107 S. W. 633; T. & P. Ry. Co. v. Hall, 83 Tex. 675, 19 S. W. 121.

While appellee, D. T. Fielder, was on the stand testifying in regard to Carnahan, he was asked, “Did you know his reputation at that time?” and, before defendant could make objection, answered, “Yes, sir; I had heard he was a drinker.” Defendant objected, and moved to strike out the answer, but did not state the ground of objection. Where the exception does not disclose the ground of objection, the ruling on same cannot be considered. G., C. & S. F. Ry. Co. v. Pearce, 43 Tex. Civ. App. 387, 95 S. W. 1133. But, even if properly excepted to, it would not be such error, if error at all, as to justify this court in reversing the case under rule 62a, Court Civil Appeals (149 S. W. x).

The same might be said of the sixth assignment, where it is complained of testimony that Carnahan was a “scrappy” man— where the objection was made that the testimony was irrelevant and immaterial. “It is well settled that the objection, ‘incompetent, immaterial, and irrelevant,’ is not specific enough, unless the real nature of the objection to the testimony is so plain that the general phrase is sufficient to indicate it.” 1 Wigmore on Ev. § 18, p. 58, and cases cited in note 18. “Certainly it is not faii¿ to allow such a general dragnet as ‘incompetent, irrelevant, and immaterial’ to be cast over every bit of evidence in the case which counsel would like to keep out, and then to permit counsel, upon careful analysis of the printed narrative of the trial, to formulate some specifications of error, not thought of at the time, and which, if seasonably called to the court’s attention, might have been avoided or corrected.” El Paso & S. W. Ry. Co. v. Smith, 50 Tex. Civ. App. 10, 108 S. W. 988; M., K. & T. Ry. Co. v. Johnson, 126 S. W. 672; 1 Wigmore on Ev. p. 58, § 18.

The seventh assignment raises the question as to whether Fielder was a passenger at the time of the injury. The evidence shows that he had gone to Katherine on appellant’s line, and then took the north-bound train to Kingsville, going to Corpus Christi. He offered the conductor a $20 bill to pay his fare; but the conductor could not change it. So he got off at Kingsville to get the money to pay the $1.25 fare to that point, and did pay it. He says he told the conductor he was going to Robstown and Corpus Christi as he got oft the steps; but it seems he thought he could use a pass he had as deputy sheriff. This pass had expired; but he did not then know it. He says that, if his attention had been called to that fact, he would have paid his fare to Corpus Christi out of money he had. The court submitted that issue to the jury, and they found that Fielder was a passenger. He says that, when he got off the train at Kingsville to get the money to pay his fare, he told Burke, the conductor, he was going with him, and Burke said all right

The case of G., C. & S. F. Ry. Co. v. Riney, 41 Tex. Civ. App. 398, 92 S. W. 54, cited by appellant, does not apply, because the ticket upon which Riney was attempting to ride from Gainesville to Sanger had expired, and he refused to pay his fare when his attention was called to it, and he was ejected at Valley View. He then sought to continue his journey from Valley View to Sanger without paying the back fare. In the Costley Case, 124 S. W. 458, Costley tendered an expired return ticket, which was refused, and he declined to pay his fare. The train was backed into San Antonio, and he was ejected and arrested.

“The relation of carrier and passenger commences when a person, with good intention of taking passage, and with the express or implied consent of the carrier, places himself in a situation to avail himself of the facilities for transportation which the carrier offers. In case of a railroad this relation arises, not merely when the passenger enters the train with the ticket already purchased giving him a contract right to ride, but when he enters upon the premises of the carrier with the intention to take a train in due course.” 6 Cyc. p. 536. The tekt of the authority just quoted further says; “If there is an intent to pay fare, or do whatever else is required to entitle the person to transportation, he becomes a passenger by implied acceptance, although his fare has not yet been paid, or his ticket called for.” See, also, Railway v. Simmons, 12 Tex. Civ. App. 500, 33 S. W. 1101; Railway Co. v. Washington, 30 S. W. 719; Railway Co. v. Griggs, 106 S. W. 412.

There was ample evidence that appellant had accepted appellee as a passenger, and that the relation had not terminated. A temporary departure from a train at a station with a view of returning and continuing the journey does not destroy the relation of passenger and carrier.

We have examined the other assignments of error, and find nothing therein that would require a reversal of this case, and the judgment of the district court is affirmed.