author: FLY, C. J.

text:
    HARLINGEN LAND & WATER CO. et al. v. HOUSTON MOTOR CO.
    (Court of Civil Appeals of Texas. San Antonio.
    Oct. 29, 1913.
    Rehearing Denied Nov. 19, 1913.)
    1. New Trial (§ 128) — Motions—Specification of Errors.
    Under Rev. Civ. St. 1911, art. 2020, providing that a motion for a new trial shall specify the ground upon which it is founded, and that no grounds other than those specified shall be heard or considered, and rule 68 for district and county courts (142 S. W. xxii) providing that grounds of objection couched in general terms as that the court erred in its charge, etc., shall not be considered by the court, a motion for a new trial because the court erred in instructing the jury to return a verdict in favor of plaintiff for any amount was too general and obscure, and the court was under no obligation to consider it.
    [Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 257-262; Dec. Dig. § 128.]
    2. Appeal and Error (§ 302) — Reservation of Grounds for Review — Motions for New Trial.
    An assignment of error based upon a motion for a new trial on the ground that the court erred in directing a verdict for plaintiff for any amount would not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1744-1752; Dec. Dig. §. 302.]
    3. Appeal and Error (§ 742) — Assignments-of Error — Propositions.
    Propositions attacking the sufficiency of the evidence to sustain a verdict were not germane to an assignment complaining of a peremptory instruction.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    4. Appeal and Error (§ 750) — Assignments of Error — Fundamental Error.
    An assignment that the court erred in directing a verdict for plaintiff for any amount raised no fundamental error or error apparent of record, since it would take a thorough consideration of the statement of facts to discover whether there was any force therein.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3074-3083; Dec. Dig. § 750.]
    Appeal from District Court, Harris County; Wm. Masterson, Judge.
    Action by the Houston Motor Company against the Harlingen Land & Water Company and others. From a judgment for plaintiff, defendants appeal.
    Affirmed.
    Lane, Wolters & Storey and Wm. A. Yin-son, all of Houston, for appellants. E. P. <& Otis K. Hamblen, of Houston, for appellee.

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

   FLY, C. J.

This is a suit on a promissory note executed by appellants to appellee for $2,700, dated March 8, 1908, with certain credits thereon amounting to $1,101.14. It was alleged by appellant that the note was given for a Stoddard-Dayton automobile, sold to them by appellee; that the automobile was warranted to be new and perfect in its parts; that the car was defective and appellants were compelled to buy two new cylinders, a new frame, and a wheel, and in one year bought 14 axles and were compelled to make other repairs. It was further alleged: “By reason of the premises these defendants say that the consideration for which said note was given has wholly failed, which they are ready to verify; that they are entitled to cancellation of said note, or in the alternative by further occasion of the premises, by reason of the various outlays and expenses incurred upon said ear, defendants have been injured and damaged in the sum of $1,528.75, actual damages, which they are entitled to recover from the plaintiff or as an offset against plaintiff’s demand and for which they now sue.” The cause was tried by jury, but a verdict was instructed for appellee, upon which the judgment was rendered.

The motion for new trial is as follows: “Now come the defendants, the Har-lingen Land & Water Company and Lon C. Hill, and move the court to set aside the verdict and judgment rendered herein against them and grant them a new trial because the verdict and judgment are contrary to the law and the evidence and because the court erred in instructing the jury to return a verdict in favor of the plaintiff: for any amount.” The only assignment is: “The court erred in instructing the jury to return a verdict in favor of the plaintiff for any amount, as is shown by defendants’ motion for a new trial, in paragraph 1 thereof.”

It is provided in article 2020, Rev. Stats., that a motion for new trial “shall specify the ground upon which it is founded, * * * and no grounds other than those specified shall be heard or considered.” Construing that statute, rule 68 for district and county courts (142 S. W. xxii) provides: “Grounds of objection couched in general terms — as that the court erred in its charge, and in sustaining or overruling exceptions to the pleadings, and in excluding or admitting evidence,, the verdict of the jury is contrary to the evidence, the verdict of the jury is contrary to law, and the like — shall not be considered by the court.”

It is clear that the charge of the court is attacked upon one ground, and that is because the evidence failed to show that appellants were indebted to appellee. It is not claimed in the motion for new trial that the charge is erroneous because the evidence was conflicting and should have been submitted to the jury. There was nothing tangible in the motion for new trial upon which the trial judge could act. He- was not informed upon what theory the charge of the court was erroneous. Why was it erroneous to instruct a verdict for appellee in any sum? Was it because the evidence was conflicting or insufficient to sustain a verdict? If so, in what particular was it conflicting and how did it fail to sustain the verdict? The mind of the court was not directed to any error, but the general contention was made that it was error to instruct a verdict. The court was not under any obligation to consider such a motion, and we conclude that he did not consider it. There was nothing in the motion to indicate what the complaint was, but it was as general and obscure as any one of the examples set out in rule 68. Assignments based upon such motions for new trial are never considered by appellate courts. White v. Wadlington, 78 Tex. 159, 14 S. W. 296; Sutherland v. McIntire, 28 S. W. 578; W. U. Tel. Co. v. Hartfield, 138 S. W. 418.

In this case as in the case last cited appellants are seeking to attack the sufficiency of the evidence to sustain a verdict under an assignment complaining of a peremptory instruction. The propositions are not germane to the assignment of error and have no support therein.

Rule 24 for Courts of Civil Appeals (142 S. W. xii) is: “The assignment of error must distinctly specify the grounds of error relied on and distinctly set forth in the motion for a new trial in the cause, and a ground of error not distinctly set forth in a motion for a new trial in the cause and not distinctly specified in reference to that which is shown in the record, or not specified at all, shall be considered as waived, unless it be so fundamental that the court would act upon it without an assignment of error. * * * ”

The assignment of error asserts that a verdict was not justified in any sum, and in the propositions it is practically admitted that appellee was entitled to a recovery in some sum. There is nothing in common between the assignment and the propositions. Railway v. Giles, 126 S. W. 282.

No fundamental error is raised by or can arise from the assignment of error, nor is there one “apparent of record.” On the other hand, it would take a thorough consideration of the statement of facts to discover, if perchance there is any force in the assignment. Houston Oil Co. v. Kimball, 103 Tex. 95, 122 S. W. 533, 124 S. W. 85.

The judgment is affirmed.


source: Caselaw Access Project

author: HODGES, J.

license: Public Domain

text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. BURK.
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 6, 1913.
    Rehearing Denied Nov. 20, 1913.)
    1. Trial (§ 194) — Instructions—Weight oe Evidence.
    In an action against a railroad company for injury to plaintiff by frightening Ms team while waiting to cross the track, an instruction that if, while plaintiff was a safe distance from the crossing, the flagman gave a danger signal, and plaintiff drove his team up and stopped at a place where travelers usually stopped to let trains pass, and such place was reasonably safe for that purpose, and in stopping at such place plaintiff was using ordinary care for his own safety, etc., then the jury should find for plaintiff, was not objectionable as intimating that a safe place to stop was a place where travelers usually stopped.
    [Ed. Note. — Por other eases, see Trial, Cent. Dig. §§ 413, 436, 439-441, 446-454, 456-466; Dec. Dig. § 194.]
    2. Railroads (§ 350) — Injury to Persons Near Track — Separate Grounds of Negligence — Speed—Submission.
    In an action for injuries to plaintiff by the frightening of his team while waiting to cross the track, evidence held to justify submission of the issue of the speed of defendant’s train, alleged to have been in violation of a city ordinance, as an independent act of negligence.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§■ 1152-1192; Dec. Dig. § 350.]
    3. Appeal and Error (§ 1064) — Harmless Error — Instructions.
    Plaintiff drove toward a railroad 'crossing guarded by a flagman, the view of which was obstructed by intervening freight cars. As he was about to cross a passenger train rushed by on an adjoining track frightening plaintiff’s horses and overturning his vehicle. The court charged that if the jury believed that, when plaintiff was at a reasonably safe distance from the track, the flagman signaled him to stop, but he failed to obey the signal and was guilty of negligence in so doing and drove his team into a place of danger, the verdict should be for defendant. Held, that defendant was not prejudiced by the instruction, in that the language “and drove his team to a place of danger” deprived defendant of the right to a verdict on grounds otherwise sufficient.
    [Ed. Note. — For other cases, see Appeal and Error. Cent. Dig. §§, 4219, 4221-4224; Dee. Dig. § 1064.]
    Appeal from District Court, Hunt County; R. D. Porter, Judge.
    Action by Willard Burk, by his next friend, against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Dinsmore, McMahan & Dinsmore, of Green-ville, and Alex S. Coke, of Dallas, for appel-' lant. Evans & Carpenter, of Greenville, for appellee.

       For other oases see same topic and section NUMBER in Deo. 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

   HODGES, J.

On December 21,1910, while the appellee, Willard Burk, was attempting to drive a team of horses across appellant’s track in the city of Greenville, he was thrown from the wagon and sustained the personal injuries for which he sues in this action. This is the second appeal in this case. A full statement of the material facts will be found in the opinion rendered by Justice Talbot in 146 S. W. 600. The evidence shows that appellant’s track in the city of Green-ville runs practically north and south, and near its freight and passenger depots is crossed at right angles by Washington street and Dee street. Wright street runs parallel with the railway right of way and a short distance from its main line at that point. We gather from the testimony that the west boundary line of Wright street is probably the eastern boundary of the appellant’s right of way. The appellant’s tracks at that point consisted of a main line, which lay on the western side of the right of way, and two switch tracks lying on the east. On the date above mentioned, and early' in the morning, the appellee was driving a team hitched to a wagon carrying a water tank, going west on Washington street. He testifies that he was familiar with the general conditions existing at the crossing and around the depot, but did not know the exact time of day or that a train was due to pass at that time. According to his version of the occurrence, he drove his team into Wright street a few feet east of the eastern switch track, and awaited a signal from a flagman stationed at that place. He received the signal of the flagman, he says, to proceed across, and started his team in that direction. Just as he approached the second switch track from the east, appellant’s passenger train, going at a rate of speed estimated by him at from 10 to 15 miles per hour, dashed by, frightening his team and causing it to overturn the vehicle in which he was riding, and he was thereby injured about the hip, shoulder, and other portions of his body. He further testifies that there was a string of box cars on the north side of the Washington street crossing, extending from a few feet in the street some distance to the north; that these cars and the buildings in that vicinity obstructed his view of a train coming from the north, and he was thus prevented from seeing the passenger train before it reached the crossing. He further testifies that he looked as best he could, and was listening for the approaching train, but the noise of his wagon prevented his hearing it. This testimony, however, is contradicted by the flagman, who says that he observed the appellee as he approached the crossing, and, knowing that a train was to pass, gave him the signal to stop, but that he failed to obey the signal and continued to drive on. Other parties who were present and witnessed the accident testified that the appellee drove up to within 12 or 14 feet of the east track, and while standing there the train ran by and his team became frightened and overturned the wagon. The negligence relied on consisted mainly of the conduct of the flagman in giving the ap-pellee a signal to cross when it was dangerous to do so, the running of the train at an unlawful rate of speed, and emitting steam making loud, unnecessary, and unusual noises. A trial before a jury resulted in a verdict in favor of the appellee for $3,000. The assignments of error are directed mainly at the charge of the court and the refusal of the court to give certain special charges requested by the appellant.

After submitting tbe issue presented by ap-pellee’s testimony of negligence on tbe part of appellant’s flagman in giving a signal to tbe appellee indicating that it was safe for appellee to cross tbe tracks, tbe court gave tbe following as a part of bis main charge: “Or if you believe from tbe evidence in this case that while Willard Burk was at a safe distance from tbe crossing tbe flagman gave a danger signal, indicating that there was danger and for said Willard to stop bis team at a reasonably safe distance from tbe crossing, and if you find that said Willard did drive bis team up and stop at tbe place where travelers usually stopped for tbe purpose of letting trains pass, and that such place was reasonably safe for that purpose, and that in so stopping at said place (if be did so stop) said Willard was using ordinary care for his own safety; and if you believe that as said team reached said place (if it did), or soon afterwards, the defendant’s train and engine were propelled across said street crossing at a greater rate of speed than six miles per hour, if you find that tbe servants of defendant in charge of tbe engine caused or permitted steam unnecessarily to escape therefrom and make a loud, unusual, and unnecessary noise, and that tbe causing or permitting of the escape of said steam and such noise (if there was such unnecessary noise and steam) was negligence, as above defined, and that as tbe proximate result of tbe negligence (if any) as to tbe speed of said train, or as to the steam andmoise, as above submitted, plaintiff’s team became frightened and ran away, and plaintiff, Willard Burk, was injured as alleged, you will find for tbe plaintiff; unless you find for tbe defendant under other issues submitted to you.” It is insisted that this charge is subject to tbe following objections: (1) That there was no evidence that Willard Burk drove bis team and stopped at a place where travelers usually stopped for tbe purpose of letting trains pass, and that such place was reasonably safe for that purpose, and that tbe train ran across tbe street while Burk bad stopped at such a place. (2) That this charge intimated that a safe place to stop was a place where travelers usually stopped. (3) That it submitted as an issue tbe speed of tbe train as an independent act of negligence, when there was no evidence authorizing tbe submission of that issue.

In disposing of these objections it is sufficient to say of tbe first that tbe record does not sustain the contention there made as to the sufficiency of the evidence upon that issue.

The second objection is untenable.

In considering the third objection it should be observed that the excessive speed of the train was pleaded as an independent ground of negligence by the appellee. The testimony shows that there was a city ordinance in force at that time limiting the speed of trains within the city limits to six miles per hour. Appellee testified that on the occasion of his injury he thought the train was going about 16 miles an hour; that it dashed suddenly from behind some box ears across the road in front of him, at the same time emitting steam and loud noises; and that his team became frightened. Another witness, who was near by at the time, testified that the train was going 8 or 10 miles per hour according to his estimate. At the instance of the appellant the court gave a special charge, which in effect instructed the jury not to find for the appellee on account of the speed of the train unless the jury believed the team took fright at the locomotive because it was moving at a greater rate of speed than six miles an hour, and that the team would not have taken fright if it had not been moving at a rate in excess of that above mentioned. The court qualified this charge, however, by telling the jury “that even though the said excessive speed of the train, if it was excessive, may not by itself alone have caused the fright of the team, yet if such excessive speed, if any, concurring with either the negligence of the flagman, if any, or the negligence, if any, as to the steam and noise, if any, proximately contributed to cause the fright of the team, defendant would be liable therefor.” Under the evidence adduced upon the last trial as it appears in the record before us, we do not think it can be said as a matter of law that the speed of the train, accompanied by the usual noises as it emerged from behind the string of box cars which obscured it from the appellee’s view, was not alone sufficient to frighten the team and cause the injury complained of. It would be attributing to the jury a gross lack of intelligence to say that under the various charges of the court bearing upon this particular issue they were misled into awarding the appellee a verdict for damages to which he was not legally entitled.

It is claimed that the court erred in the following paragraph of his charge: (If you believe) “that when he was at a reasonably safe distance from the track the flagman by the usual means and signals signaled said Willard Burk to stop his team and wait for the passage of a train, and said Willard Burk failed or refused to obey such signal, if there was such a signal given, and was guilty of negligence in so failing (if you find he did so fail) and drove his team to a place of danger,” followed by a direction to find for the defendant. The vice which the appellant contends is contained in this charge is the language, “and drove his team to s> place of danger.” It is insisted that by add ing that language to the charge the cour' deprived the appellant of the right of an ac quittal upon grounds otherwise sufficient; that the conditions grouped in other portions of the charge as a basis for a verdictin favor of the appellant were sufficient without the incorporation of that language. We do not think any harm could have. resulted to the appellant from the use of the language objected to, because the facts show that Burk did drive his team to a place of danger; that is, a place where they became frightened and overturned his vehicle.

It is unnecessary to discuss the remaining assignments of error, and the judgment is affirmed.


author: LENT, J.

text:
    CARROLL v. FIRST STATE BANK OF DENISON et al.
    (Court of Civil Appeals of Texas. Texarkana.
    Oct. 31, 1913.
    Rehearing Denied Nov. 20, 1913.)
    1. Estoppel (§ 55) — Elements—Necessity op Reliance on Statement.
    Where an attachment creditor did' not change its position to its detriment in any way in consequence of the attachment debtor’s statement that property was not his, but took such property under the attachment, the debtor was not estopped by his statement, and could bring suit for the wrongful attachment of such property, since a statement not influencing the act or operating to the injury of another should not be enforced further than is requisite to protection from injury.
    [Ed. Note. — For other cases, see Estoppel, Cent. Dig. §§ 136-141; Dec. Dig. § 55.]
    2. Gifts (§ 34) — Sales (§ 476) — Failure to Perform Conditions.
    Where an owner of mules told his son that he could have them upon condition that he pay off a mortgage thereon, but there was no delivery, the father retained possession, and the son never undertook to perform the condition, nor claimed the mules, he was not the owner thereof by purchase or gift."
    [Ed. Note. — For other cases, see Gifts, Cent. Dig. §§ 68-71; Dee. Dig. § 34; Sales, Cent. Dig. §§ 1407-1410; Dec. Dig. § 476.]
    3. Attachment (§ 379) — Wrongful Attachment — Actions—Question for Jury.
    In an action for wrongful attachment of a team of mules, evidence that plaintiff had stated that the mules were not his did not justify the submission of the question of ownership to the jury, where he explained the statement by testifying that he offered to give the mules to his son if he would pay off a mortgage thereon, which the son did not do, and that therefore he did not know “how the law regarded it,” and there was evidence that there was no delivery of the mules by him, and that the son never claimed them; it appealing that his statements were founded on an erroneous conclusion by him as to the law.
    [Ed. Note. — For other cases, see Attachment, Cent. Dig. §§ 1376, 1377; Dee. Dig. § 379.]
    Appeal from County Court, Grayson County; J. Q. Adamson, Judge.
    Action by J. R. Carroll against the First State Bank of Denison and others. Judgment for defendants, and plaintiff appeals.
    Reversed and remanded.
    See, also, 148 S. W. 818.
    J. H. Randell, of Denison, and Sam H. Smelser, of Texarkana, for appellant. N. H. L. Decker and Wolfe, Wood & Haven, all of Denison, for appellees.

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

   LENT, J.

A writ of attachment was sued out and caused to be levied by the appellee bank upon two mules and a wagon as the property of the appellant. Appellant replevi-ed the property after the levy of the attachment writ. This suit was by appellant to recover damages for the alleged wrongful suing out and levying of the writ of attachment upon the two mules, as being within the exemption laws of the state. The appel-lees pleaded, besides general denial, that the two mules attached were the property of appellant’s son at the time of the levy of the writ. The charge of the court authorized a verdict for appellee upon the finding by the jury that the mules in suit were the property of the appellant’s son. This charge is complained of in the fifth assignment of error as submitting an issue not warranted by the evidence. The question of the ownership of the mules by the minor son of appellant, and not the appellant himself, is referred entirely in the record to the statements made by appellant in regard thereto. The appellant made the following statements: “Constable W. H. Hughes approached me, and asked me if those were my mules. I said, ‘Yes.’ He said that he had an attachment for the two mules. The mules were then standing on the street, hitched to a wagonload of wood. I then told him that the mules did not belong to me.” The constable testifies to the same thing. The constable’s return on the writ shows a levy on the mules as the property of appellant, and the mules were held under the attachment until replevied by appellant. The attorney for the bank testifies: “J. R. Carroll [appellant] told me in my office soon after the levy that the mules did not belong to him; that they belonged to his son.” But, as explanatory of the statement made, appellant testifies that he based the statement on the following facts: “I had mortgaged the mules to the bank at Colbert, Okl., and given them my note for $350. Before the mules were attached, I told my son, who was then a minor living with me, that, if he would stay at home, and work, and make the money, and pay off the $350 note and mortgage to the Colbert bank, that he could have them. But we had two bad crop years, and the boy had not paid anything on the notes at the time of the levy, and he has paid nothing at any time on it. So I did not know how the law regarded it; but those were the facts of the case. We have never been able to pay anything on the note and mortgage to the Colbert bank, and so I had to let the bank have the mules in payment of the mortgage and note. As the boy never paid anything on them, I consider that he never owned the mules, and he never claimed them.”

As it clearly appears that the bank had taken the mules under attachment as the property of the appellant, and was not induced to change its position to its detriment in any way in the seizure under the writ in consequence of the statement or remark of appellant to the constable and the bank’s attorney that the mules did not belong to him, but to his son, such remark should not, we think, be held to have the legal force and effect of a conclusive admission in the nature of an estoppel against appellant that he was not the owner of the mules. A statement not influencing the act or operating to the injury of another should not be enforced further than is requisite to protection from injury. Therefore such question is aside, and the force and effect of the statement or remark of appellant that the mules belonged to his son, as being sufficient evidence on which to rest a finding that the appellant was not the owner of the mules, properly must be determined in the light of the facts prompting appellant in making said statement or remark. The facts on which the statement was founded merely show that the appellant offered to let his son have the mules upon the condition that he pay off the mortgage and indebtedness against them; but the son never performed or undertook to perform the condition, and there was no delivery, and the appellant continued possession, and claimed the ownership, and the son never claimed the mules. It is not sufficient evidence to establish ownership by purchase or gift.

And so, when the statement or remark made by appellant is considered in the light of the facts on which appellant insists that he based the statement or conclusion that the mules belonged to his son, there would appear no more than a mistake of law on the part of appellant that his son had any legal interest in the mules at the time of levy or suit. He said, as a reason for the statement: “So I did not know how the law regarded it; but those were the facts of the case.” So, if the said statement or remark is apparently an inconsistent statement of his ownership when considered with appellant’s other statement at the time to the officer that the mules were his, and his continued insistence that they were his, nevertheless the said statement or remark as to his son’s interest in the mules could not properly be given the force and effect that the mules belonged to the son in the face of the legal effect of the facts concerning any claim his son might have in the mules. Therefore, as the evidence relied on for ownership by the son is presented, the sole question of legal effect to be given all such evidence is presented, and this was for the court, and not the jury, to determine. If appellant did make the remark or statement to the constable, as he admits, that his son owned the mules, and this remark was, as it appears, founded on an erroneous conclusion by him of the law arising on the facts, appellant would not be precluded thereby of his legal rights in the mules. And if the force and effect of the statement or remark was but a misapprehension of legal rights, as it appears, then it could not properly be said that the statement or remark, construed in the light of the facts, was legally sufficient to show ownership of the mules in the son, or as presenting conflicting evidence in respect to the appellant’s ownership of the mules. In this situation the evidence did not warrant the issue as submitted by the court.

The error complained of was injurious to appellant’s rights, according to this record. The judgment is therefore reversed, and the cause remanded.


author: LEVY, J.

text:
    BEARD v. GULF, C. & S. F. RY. CO.
    (Court of Civil Appeals of Texas. Texarkana.
    Oct. 30, 1913.)
    1. Limitation of Actions (§ 28) — Limitation Applicable — Implied Contracts.
    Where a former station agent of a railroad company on March 31, 1905, brought suit to recover money paid out by him for additional help, at his station, and pay for overtime work, so much of these claims as accrued on and prior to March 31, 1903, was barred by the limitation of two years.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 134, 135, 142; Dec. Dig. § 28.]
    2. Master and. Servant (§ 73) — Contracts-of Employment — Breach by Employer-Damages.
    Where a railway station agent whose employment was determinable by either party at wiU voluntarily resigned his position because of the company’s failure to furnish him additional help necessary to perform the increased business-at the station, as it had agreed to do, and no other loss or injury than the loss of his position had been sustained by him, he could not recover damages for such failure to provide such additional help, since, having voluntarily resigned, he was not entitled further to the pay of his position.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 90-102; Dec. Dig. §- 73.]
    3. Libel and Slander (§ 85) — Actions—Petition— Sufficiency.
    In an action against a railway company by a former station agent, the petition filed January 6, 1909, alleged that plaintiff quit defendant’s service in March, 1904, that he had been denied employment in any railroad company whatever, though he had often made application therefor, on account of defendant intentionally and purposely depriving him of his good name and his right to pursue his ordinary occupation, by circulating and maintaining, among all the railroad companies in the United States and especially those in Texas, a report that he was unworthy of employment and incompetent, that it had caused his name to be blacklisted by printing or otherwise transcribing it in a list of persons claimed to be unworthy and incompetent, and that defendant had caused such report and black list to be circulated immediately after plaintiff quit its services and from time to time thereafter up to “the present time.” Held, that the indefiniteness in respect to the extent and date of the circulation of such report and black list did not render the petition insufficient as against a general demurrer.
    [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 201-204; Dec. Dig. § 85.]
    4. Limitation of Actions (§ 180) — Actions— Petition — Sufficiency.
    Such petition was not demurrable as showing on its face that the cause of action alleged was barred by limitation, as a plea of limitation might be overcome by proof that within the statutory period before filing suit defendant had circulated or published the libel or black list with some particular railroad company.
    [Ed. Note. — Eor other cases, see Limitation of Actions, Cent. Dig. §§ 670-675, 681; Dec. Dig. § 180.]
    5. Limitation of Actions (§ 180) — Pleading —Demurrer or Plea.
    Where plaintiff’s petition does not show on its face that the action is barred, the defense of limitation must be presented by plea and not by exception.
    [Ed. Note. — For other cases, see Limitation Of Actions, Cent. Dig. §§ 670-675, 681; Dec. Dig. § 180.]
    Appeal from District Court, San Augustine County; W. B. Powell, Judge.
    Action by H. C. Beard against the Gulf, Colorado & Sante Fé Railway Company. From a judgment dismissing the action, plaintiff appeals.
    Reversed and remanded.
    W. T. Davis, of San Augustine, and D. M. Short & Sons, of Center, for appellant. F. J. & C. T. Duff, of Beaumont, A. E. & S. M. Davis, of San Augustine, and Terry, Cavin & Mills, of Galveston, for appellee.

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

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

   LEVY, J.

By the petition plaintiff sued the railway company for: (1) $20 per month from October 5, 1902, until March 1, 1904, as money paid out by plaintiff for additional help in having the United States mail delivered from the depot to the post office at San Augustine; and (2) for $38.85 as paid by plaintiff for the hire of several persons ‘to assist in work done for the company; and (3) $275 for overtime work, at 25 cents per hour, done by plaintiff from February, 1903, until February, 1904, and claimed to be due under contract of employment with appellant; and (4) $1,000 damages for alleged wrongful failure to furnish help in the conduct of the business of the station, and thus impelling plaintiff to resign his employment as station agent; and (5) $10,000 damages for alleged libel or blacklisting. ' The court sustained the special demurrers to the several allegations of damages, except the second ground above, which brought the , amount below the jurisdiction of the court, and the suit was dismissed. The appeal is to revise the ruling of the court on the special demurrers.

The special demurrer set out in the second assignment of error is directed to the claim for the item mentioned in paragraph 1 above, as being incurred without authority to employ or pay for additional help, and that such claim, if any, appears on the face of the petition as barred by the statute of limitation of two years. It does not appear from the petition that appellant had authority to hire additional help to carry the mail, or, by giving proper effect to the pleading, that appellant acted in the hiring within the scope of his authority. Railway Company v. Allen, 42 Tex. Civ. App. 576, 94 S. W. 417; 1 Elliott on Railways, § 303. And if authority to hire the alleged additional help to deliver the mail had been shown in appellant, it would nevertheless appear on the face of the pleading that any claim for the monthly employment from October 5, 1902, until March 30, 1903, inclusive, was barred by limitation of two years. The suit was begun March 31, 1905. And if appellant was due pay at 25 cents per hour for overtime work, claimed in paragraph 3 above as a part of the alleged contract of his employment, all that part of such claim accruing in February and to March 30, 1903, was barred by limitation of two years, as claimed in the special demurrer set out in the sixth assignment. Consequently all the items remaining in the several alleged claims for personal service and reimbursement not barred by limitation are in aggregate amount below, as the court held, the jurisdiction of the district court.

The special demurrer made the basis of the fifth assignment of error is directed to the third paragraph of the petition, seeking to recover damages in the sum of $1,000. In effect it is alleged that at the time the appellant was employed as station agent it was agreed by the company to give appellant such additional help as was necessary to perform increased business at the station, and such business so increased at the station as to make it burdensome and impossible for appellant to attend to it, and appellee failed to provide the additional help after demand made for it, and because thereof appellant resigned his position. Any other loss or injury to appellant than the pay of his position is not made to appear. There was no fixed term of service, and the employment was determinable by either party at will; and, appellant having voluntarily resigned his position, he would not, after such resignation, be entitled further to the pay of his position. The demurrer was properly sustained.

The special demurrer of limitation, set out in the seventh assignment, was directed to the fourth paragraph of the petition the case was tried on, which predicates damages upon alleged libel or blacklisting. The original petition, filed March 31, 1905, did not seek damages for nor plead defamation of character, and it was first made the basis of suit in the first-amended petition, filed January 6, 1909. Appellant, as he alleged, quit the service of appellee in March, 1904. According to the allegations of paragraph 4 of the petition the appellant has suffered actual damages: (1) By being “denied employment in any railroad company whatever, though he has often made application to them therefor” ; (2) on account of being “by the de fendant intentionally and purposely deprived of his good name and his right to pursue his ordinary occupation without interference from others, and the privilege to enjoy the benefits, advantages, and value of his training and experience without impairment, and to receive the full compensation legitimately belonging .to him by reason of his experience and trustworthiness in the service of the railroads of the country”; (3) by means of the appellee causing “to be circulated and maintained among all the railroad companies in the United States, and especially those doing business in Texas, a report to the effect that the plaintiff was and is unworthy to be employed in the service of said railway companies, and incompetent to discharge the duties as agent of said companies, and has caused plaintiff’s name to be blacklisted, that is to say to be printed, written, and otherwise transcribed in a list of persons claimed as unworthy to be employed by said railway companies and incompetent to act as agent for said railway companies”; and (4) that the appellee caused the report and black list to be circulated “immediately after the plaintiff quit its service, as aforesaid, on the date aforesaid, and from time to time thereafter and up to the present time.” We assume that the pleading under consideration sufficiently stated a cause of action, and undertake to determine only the question of whether the pleading on its face should properly be determined on demurrer as barred by the statutes of limitation. According to the petition, as seen, the appellant failed to secure employment with any railway company, though application was made to all of them, as the result of the alleged circulated libel or blacklisting. And the petition does not give or attempt to give the names of the railway companies, nor does it specify any particular railway company with which the alleged libel or blacklisting was circulated or published. And the petition does not with exactness state the time when the circulation or publication was made to the railway companies, but a continuing time of circulation or publication is stated as “immediately after the plaintiff quit its service, and from time to time thereafter and up to the present time.” Looking, therefore, to the facts pleaded, the particular “libel or blacklisting” sued on and alleged to have caused the damages was circulated or published by appellee to “all the railroad companies in the United States, and especially those doing business in Texas,” between the time appellant quit the service in March, 1904, and the time of filing the action thereon in January, 1909. The language of the petition is general enough to give much latitude to proof of circulation or publication and the time thereof to each railway company. Of course indefiniteness on the part of the petition in respect to extent and date of circulation did not render it insufficient as against a general demurrer. Therefore it could be said to appear from the allegations of the petition that though a circulation or publication of the alleged libel or blacklisting to some particular railway companies may have occurred above the statutory period of limitation before filing suit in 1909, still a plea of limitation may be overcome by proof that appellee, within the statutory period before filing suit, circulated or published the libel or blacklisting declared on with some particular railway company.

Where the plaintiff’s petition does not show on its face that the action is barred, the defense of limitation must be presented by plea, and not interposed by exception. Tinsley v. Penniman, 8 Tex. Civ. App. 495, 29 S. W. 175. The court erred in sustaining the special demurrer of limitation.

The judgment is reversed, and the cause remanded.


author: JENKINS, J.

text:
    PATRUCIO v. SELKIRK et al.
    (Court of Civil Appeals of Texas. Austin.
    June 11, 1913.
    Rehearing Denied Nov. 12, 1913.)
    1. Judgment (§ 518) — Collateral Attack— Cross-Bill.
    An attack on a judgment is not necessarily collateral because made by a cross-bill; the parties, court, and subject-matter being the same as in the original suit.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 961, 962; Dec. Dig. § 518.]
    2. Judgment (§ 460) — Equitable Relief-Allegations of Fraud.
    Mere broad general charges of fraud in the procurement of a judgment sued on without any specific allegations of fact constituting the fraud are insufficient to impeach the judgment.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 879, 880, 882-891; Dec. Dig. § 460.]
    3. Judgment (§ 460) — Equitable Relief-Petition — Verification.
    A petition to set aside a judgment is an appeal to the equity powers of the court, and must be sworn to.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 879, 880, 882-891; Dec. Dig. § 460.]
    4. Judgment (§ 460) — Petition to Vacate— Effect.
    A petition to vacate a judgment is in the nature of a motion for a new trial, and must set out such facts as would have been ground for granting a motion for new trial if made in the term at which judgment was rendered.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 879, 880, 882-891; Dec. Dig. § 460.]
    5. Judgment (§ 460) — Action to Vacate— Fraud — False Testimony.
    Allegations of fraud in the recovery of a judgment sued on, amounting to nothing more than a charge that the plaintiff had given false testimony on the trial at which the judgment was recovered, were insufficient to authorize such relief.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 879, 880, 882-891; Dee. Dig. § 460.]
    6. Judgment (§ 405) — Conclusiveness—Vacation.
    When, in the exercise of lawful power, the court has rendered a lawful judgment, it is conclusive between the parties, except in an appellate proceeding, unless some ground, other than that it is probably unjust, is shown which, under settled rules of law, is sufficient to authorize a court of equity to re-examine the case, the judgment debtor being bound to show that it was, through no fault or lack of diligence on his part, that the facts on. which he alleges the judgment should be set aside were not discovered by him and presented on the original trial.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 766, 767; Dec. Dig. § 405.]
    7. Judgment (§ 456) —Vacation —Equity Suit — Laches—Explanation.
    Where no application to set aside a judgment for fraud was made until after the expiration of 12 years, the debtor’s application will not be entertained without a sufficient explanation of the delay.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 863-866; Dec. Dig. § 456.]
    8. Adverse Possession (§ 22) — Character oe Possession — Grazing Cattle.
    Grazing cattle which roamed at will on land claimed adversely by defendant and on other land in which he claimed no interest was not sufficient to sustain a plea of adverse possession.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. § 111; Dec. Dig. § 22.]
    Appeal from District Court, Matagorda County; Wells Thompson, Judge.
    Action by James H. Selkirk and others against Tom Patrucio. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    W. S. Holman, of Bay City, and John T. Duncan, of La Grange, for appellant. Linn, Conger & Austin, of Bay City, for appellees.

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

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

   Statement of the Case.

JENKINS, J.

Appellees and others recovered a judgment against appellant and others for the land in controversy in the district court of Matagorda county in 1897, which was affirmed by the Court Civil Appeals June ——, 1898. See Petrucio v. Gross, 47 S. W. 43. The issue in that suit was as to whether Dick’s Island, on which the land in controversy is situated, is a part of the Selkirk or a part of the Dempsey grant. This suit was brought by appellees to enforce said judgment, and to recover possession of said land for which they obtained judgment in the former suit. Appellant, in addition to general denial, alleged that said judgment was obtained by fraud and perjury, and pleaded the statute of limitations. This attack upon the judgment was stricken out upon exceptions, and the jury found against appellant on his plea of limitations. Appellees’ objections to a number of appellant’s assignments as not being in conformity with the rules, might well have been sustained, but we have nevertheless given consideration to alL of said assignments.

Opinion.

1. We do not agree with appellees that appellant’s answer and cross-bill constitutes-a collateral attack on the former judgment. Such attack may be made by a cross-bill as-well as by original petition; the parties, the court, and the subject-matter being the same-as in the original suit. Moore v. Miller, 155 S. W. 579.

2. The court did not err in sustaining appellees’ exceptions to appellant’s original answer in so far as the same sought to attack the former judgment, for the reason that it contains no specific allegations of fact alleged' to have been falsely sworn to on the former' trial, but only “broad, general, and indiscriminate charges of fraud.” These were insufficient. Burnley v. Rice, 21 Tex. 182.

3. The exception to the trial amendment that the same was not verified was well taken. A petition to set aside a judgment is an appeal to the equity powers of the court, and should be sworn to.

4. A petition to vacate a judgment is in the nature of a motion for a new trial, and must set out such facts as would have been ground for granting such motion, if made in the term at which such judgment was rendered. McFarland v. Hall, 17 Tex. 676; Vardeman v. Edwards, 21 Tex. 739; Bryorly v. Clark, 48 Tex. 352.

The material facts alleged in the trial amendment to have been falsely sworn to are: (1) That appellee J. H. Selkirk testified that if Dick’s Island was not included in the Selkirk grant, the same would be short some 300 or 400 acres; whereas, in truth, the Selkirk grant contained 5,606 acres, exclusive of Dick’s Island. The Selkirk grant was for islands in the Colorado river containing one league (4,428 acres). (2) That Dick Sevrill testified that the stream east of Dick’s Island had been called the east branch of the Colorado river ever since he had known it, for a period of 20 years; whereas, in truth said stream had been known only as Dick’s slough, and was not a braneh of the Colorado river, and did not empty into same, but into a lake. (3) That Joshua Fisher testified that he had known the island in controversy for 25 or 30 years, and had always known it as Selkirk’s Island, whereas, in truth it had been known as Dick’s Island ever since Dick Howes occupied the same with some slaves during the Civil War. (4) It was also alleged that appellees introduced in evidence upon the former trial the field notes of a resurvey of the Dempsey survey, made for one Jane Calder, by the county surveyor of Mata-gorda county upon the erroneous supposition that said Dempsey survey had been forfeited, and that said field notes were erroneous in that they called for Piney bayou as forming a portion of the western boundary of said survey; whereas, said Dempsey survey, for the entire length of its western boundary, bordered upon the Colorado river and included Dick’s Island. These allegations would not have been sufficient grounds for a new trial in the original suit. If the mere allegation that the opposite party has given false testimony upon a trial was sufficient to obtain a new trial, then, as said in Burnley v. Rice, supra, “there would be few trials that would be final, * * * lawsuits would indeed be immortal, while men are mortal.” . The ap-pellee ought to have anticipated just such testimony as he alleges was adduced; and to sustain his contention, he ought to have come prepared to show, if such was the fact, that the Selkirk grant had more land than it called for, exclusive of Dick’s Island; that its eastern boundary was not a branch of the Colorado river, but only a slough, and that it was never known as Selkirk’s Island, but as Dick’s Island. No fraud can be charged against appellees in introducing the field notes of the Calder survey.

5. “When in the exercise of lawful power a court has rendered a final judgment, it must be held conclusive between the parties thereto, except in a proceeding appellate in its character, unless some ground, other than that it is probably unjust, is shown which under the settled rules of law is deemed sufficient to authorize a court of equity to re-examine the case.” Harn v. Phelps, 65 Tex. 597. See, also, Wood v. Lennox, 5 Tex. Civ. App. 321, 23 S. W. 812. A party seeking to set aside a judgment must show that it was through no fault of his, and no lack of diligence on his part, that the facts upon which he alleges such judgment should he set aside, were not discovered by him and presented by him on the former trial. Power v. Gillespie, 27 Tex. 371; Brownson v. Reynolds, 77 Tex. 255, 13 S. W. 986; Fisk v. Miller, 20 Tex. 578; Vardeman v. Edwards, 21 Tex. 742; Weaver v. Vandervanter, 84 Tex. 693, 19 S. W. 889.

6. Another and sufficient reason why the court did not err in sustaining the exception to appellant’s attempted attack on the former judgment is that no reason is given why suit was not seasonably brought to set aside said judgment, instead of waiting, as was done, for 12 years. It devolved upon appellant to allege sufficient reason for his delay, which he did not do. Milam County v. Robertson, 47 Tex. 222; De Camp v. Bates, 37 S. W. 645; Myers v. Pickett, 81 Tex. 56, 16 S. W. 643.

7. Appellees having shown themselves entitled to recover the land in controversy under the former judgment, judgment was rightfully rendered for them herein, unless appellant was entitled to the same under his plea of limitation.

Dick’s Island was shown to contain 414 acres of land. Appellant claimed only 100 acres off the north end. He had no improvements on the land claimed by him. He had used it only for grazing purposes, appelle.es at the same time using it for the same purpose. His cattle grazed upon appellee’s land, and their cattle grazed upon the land claimed by appellant, there being no fence between them. This character of possession is insufficient to sustain limitation, under either the three, five, or ten years statute. The jury were not only justified in finding against appellant on his plea of limitation but they would not have been justified in a contrary finding. Fuentes v. McDonald, 85 Tex. 136, 20 S. W. 43.

No error appearing of record, the judgment of the trial court is affirmed.

Affirmed.


author: HIGGINS, J.

text:
    STANDARD MILLING CO. v. IMPERIAL RICE CO.
    (Court of Civil Appeals of Texas. El Paso.
    Nov. 6, 1913.
    On Rehearing, Nov. 20, 1913.)
    1. Trial (§ 192) — Instructions—Assumption oi? Facts.
    Where, in an action for breach of a contract for the sale of rice, the undisputed evidence showed a breach in delivery, an instruction which assumed such breach was not erroneous.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 432-434; Dec. Dig. § 192.]
    2. Sales (§ 418) — Breach oe Contract-Measure oe Damages.
    The measure of damages for breach of contract for delivery of various installments of rice sold is to be computed with reference to the market prices at the times when they should have been delivered.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1174-1201; Dec. Dig. § 418.]
    3. Appeal and Error (§ 742) — Presentation for Review — Sufficiency.
    An assignment of error which refers merely to the record and is not supported by a proper statement will not be considered on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    4. Appeal and Error (§ 758) — Brief—Rulings on Evidence.
    An assignment of error complaining of a ruling on evidence could not be considered, where the appellant’s brief failed to disclose the grounds of objection made below.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3093; Dec. Dig. § 758.]
    5. Assignments (§ 137) — Action by As-signee-Evidence.
    Where, in an action for breach of contract for the sale of rice, plaintiff claimed as assignee of the contract under which defendant sold rice and the evidence showed that the alleged assignment was in fact a mere contract of sale which did not require that the rice delivered to plaintiff be that procured from defendant, a verdict should have been directed for defendant.
    [Ed. Note. — For other cases, see Assignments, Cent. Dig. § 234; Dec. Dig. § 137.]
    6. Appeal and Error (§ 274) — Bill oe Exceptions — Sueeiciency.
    A bill of exceptions, complaining of the admission in evidence of a letter, is insufficient to present for review the admission of parol evidence.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1591, 1592, 1605-1607, 1624, 1631-1645; Dec. Dig. § 274.]
    7. Appeal and Error (§ 742) — Bbief— Supei-cienct.
    An assignment in appellant’s brief, complaining of the admission of certain evidence, will not be considered, where it is supported by no statement, fails to state the objections made to the evidence, and for supporting propositions refers to propositions under other assignments.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    Appeal from District Court, Harris County ; Wm. Masterson, Judge.
    Action by the Imperial Rice Company against the Standard Milling Company. From judgment for plaintiff, defendant appeals.
    Reversed and remanded, and motion for rehearing overruled.
    Campbell, Sonfield, Sewall & Myer, of Houston, for appellant. B. F. Louis, of Houston, for appellee.

      For other 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

   HIGGINS, J.

Appellant sold to C. E. Stacey, doing business under the name of the Farmers’ Rice Company, 400 tons of rice bran, the contract of sale being evidenced by letter dated October 17, 1910, and reading as follows: “Farmers Rice Co., Houston, Texas —Gentlemen: We beg to confirm sale to you of 400 tons of rice bran at $13.90 per ton of 2,000 lbs. net to us f. o. b. cars our mill. This bran to be tagged; shipments 20 tons per week, you to furnish us shipping instructions at least three days ahead of required shipment. The first shipment to be made this week. Terms: Net cash upon delivery of the bran on board cars. This contract is written in duplicate. Please sign one and return to us, retaining the other for your files. Yours truly, Standard Milling Company.” The Farmers’ Rice Company sold to the Imperial Rice Company, a firm composed of Leo V. Hahn and T. F. Ryan, 400 tons of rice bran, the contract of sale being evidenced by letter dated October 19, 1910, and reading as follows: “Imperial Rice Co., Plouston, Texas — Gentlemen: We beg to confirm sale to you of 400 tons rice bran at $14.00 per ton of 2,000 lbs. net to us, f. o. b. cars Houston, Texas. This bran to be tagged; shipments 20 tons per week, you to furnish us with shipping instructions at least three days ahead of required shipment. The first shipment to be made next week. Terms, net cash upon delivery of the bran on board cars. This contract is written in duplicate. Please sign one and return to me, retaining the other for your files. Yours truly [Signed] Farmers’ Rice Co., per C. E. Stacey.” Two hundred and seventy-nine tons were delivered by appellant to the Farmers’ Rice Company under its contract of October 17, 1910, and this suit is by the Imperial Rice Company against the Standard Milling Company for alleged failure to deliver the balance of the 400 tons contracted to be delivered. The cause was tried before a jury, submitted upon special issues, and resulted in a judgment in appel-lees’ favor in the sum of $375.10. It was alleged by plaintiffs that the contract between the Standard Milling Company and Farmers’ Rice Company “was made by and in behalf of and for the benefit of the plaintiffs herein, the said Farmers’ Rice Company acting in so doing at the request of and as agent of the plaintiffs, plaintiffs agreeing to pay said Farmers’ Rice Company the sum of 10 cents per ton as brokerage in compensation for so doing and for procuring the delivery of said bran to plaintiffs, and that in addition to so acting as agent for plaintiffs, as alleged, the said Farmers’ Rice Company, after making said contract with the defendant, Standard Milling Company, for a valuable consideration agreed to be paid by the plaintiffs to said Farmers’ Rice Company, to wit, the sum of 10 cents per ton embraced therein, sold, transferred, and assigned to plaintiffs herein the said bran embraced in said contract, and all rights thereto, and said contract, and agreed for such consideration to immediately turn over to and deliver to plaintiffs all of said bran embraced in said contract, and to obtain delivery thereof from defendant company for plaintiffs.” In response to a'special issue the jury found that the contract was assigned to the appellees rather than having been made by Farmers’ Rice Company for their benefit.

The first and second assignments of error are overruled, as special issue No. 2 does not assume either that the contract was made for plaintiffs’ benefit, or that it was assigned to them. The form of the submission is not to be commended, but it presents no reversible error.

The undisputed and admitted facts show that, to the extent of 13 tons at least, appellant breached the contract, and therefore there was no error in so assuming a breach in delivery, as there was no issue in this respect. The third assignment is therefore overruled.

The fourth assignment is overruled because there is no material variance as is here contended for. The finding of the jury is that the contract was breached after April 8,1911, and not in April, as is stated by appellant.

The fifth assignment, relating to the measure of damage, is sustained. Where delivery is to be made in installments, the measure of damage for breach in delivery of the various installments is to be computed with reference to the market price at the time at which the various installments should have been delivered. Ullman v. Babcock, 63 Tex. 68; Hewson-Herzog Co. v. Minn. Brick Co., 55 Minn. 530, 57 N. W. 129; York v. Lusk, 45 Kan. 182, 25 Pac. 646; 35 Cyc. 637.

The sixth assignment is not considered because unsupported by proper statement. We are referred merely to the record.

In view of a reversal, the seventh assignment, complaining of the amount of the verdict, need not be considered.

The eighth assignment relates to a ruling on evidence. Such assignments will not be considered where appellant’s brief fails to disclose the grounds of objection made at the trial. Lee v. Simmons, 151 S. W. 868; Ry. Co. v. Miller, 88 S. W. 499; Ry. Co. v. Matlock, 99 S. W. 1052; Roibal v. Giron, 158 S. W. 798, recently decided by this court. We are not even referred to the number of the bill of exception taken to the admission of the testimony, nor is the page of the record given where it may be found.

Special charge No. 1, peremptorily instructing a verdict in favor of appellant, should have been given. There is no evidence in the record of an assignment to appellees by the Farmers’ Rice Company of the contract which it entered into with appellant. The letter of October 19th of the Farmers’ Rice Company to the Imperial Rice Company is a sale of 400 tons of rice bran, and is in no sense a mere assignment of the other contract. It may be that the parties contemplated that the rice obtained by the Farmers’ Rice Company from appellant would be used in filling this latter contract, but the instrument, upon its face, does not so disclose. The testimony of Stacey and Hahn, while it indicates that they contemplated so using the 400 tons obtained from appellant, yet Hahn’s testimony shows very clearly that it made no difference to his firm where the 400 tons came from, called for by the contract between the Farmers’ Rice Company and the Imperial Rice Company. The ninth assignment is therefore sustained.

The tenth assignment is overruled. The bill of exception shows that objection was made to admission in evidence of a certain letter, while in support of the assignment it is here urged that certain parol evidence was inadmissible. The bill of exception, therefore, does not support the contention made in the brief.

The eleventh assignment, complaining of the admission of certain evidence, is not considered because: (1) It is not supported by any statement whatever; (2) it relates to a ruling on evidence, and the brief does not set forth the objections which were urged against its admission (see authorities last cited above); (3) for propositions in support of the assignment, reference is made to propositions under other assignments. This is not a proper method of briefing, and will not be permitted. San Antonio Foundry Co. v. Drish, 38 Tex. Civ. App. 214, 85 S. W. 440.

For the same reason the twelfth and thirteenth assignments are not considered.

The fourteenth assignment is not considered because it is not supported by sufficient statement.

Neither is the fifteenth considered, because unsupported by proper statements and propositions.

Reversed and remanded.

On Rehearing.

It is insisted that this court erred in sustaining the fifth assignment relating to the measure of damages, because under the pleadings and evidence it appears that the original contract for delivery in installments had been changed by subsequent agreement. This contention was clearly in mind when the original opinion was written. It was deemed not well taken, because the evidence does not show that the contract for delivery in installments was changed. It merely shows that delivery had been by agreement postponed. With that exception the contract remained as originally made, and the measure of damages is as stated in the original upin-ion. We make this further explanation in view of a retrial, so that the trial court may be advised fully in the premises.

The motion for rehearing is overruled.


author: RICE, J.

text:
    INTERNATIONAL & G. N. RY. CO. v. WILLIAMS.
    (Court of Civil Appeals of Texas. Austin.
    July 5, 1913.
    On Motion for Rehearing, Oct. 29, 1913.)
    1. Trial (§ 139) — Taking Case from Juby —Evidence.
    When there is any evidence raising an issue upon which a verdict may be rendered in behalf of the plaintiff, a peremptory instruction for defendant would be erroneous.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 332, 333, 388-341, 365; Dec. Dig. § 139.]
    2. Master and Servant (§ 286) — Action eor Injuries — Question for Jury — Place for Work.
    On evidence in an action by a car inspector and repairer for injuries from falling into a ditch while carrying a heavy draft rod, held, that the questions whether the ground through which the ditch ran was a part of defendant’s yard at that place, and under its control at the time of the accident, were for the jury.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. &§ 1001, 1006, 1008, 1010-1015, 1017-1033, 1036-1042, 1044, 1046-1050; Dec. Dig. § 286.]
    3. Master and Servant (§ 228) — Action for Injuries — Contributory Negligence —Statutes.
    Under Rev. Civ. St. 1911, art. 6649, providing that in personal injury actions against railroads the negligence of the injured employé shall be no defense, but shall merely go to the amount of recovery, an employe's contributory negligence, either in fact or in law, would not defeat his recovery.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 670, 671; Dec. Dig. § 228.]

      4. Trial (§ 256) — Instructions—Duty to Request Instructions.
    It is the duty of a party not satisfied with an instruction to present a special charge incorporating his view of the case, and on failure to do so he cannot complain.
    [Ed. Note. — Por other cases, see Trial, Cent. Dig. §§ 62S-641; Dec. Dig. § 256.]
    5. Master and Servant (§ 204) — Assumption of Risk.
    In view of Acts 29th Leg. c. 16S, prescribing when a defense of assumption of risk shall be available, such defense does not apply to an employé having knowledge of a danger, if a person of ordinary care and prudence would have continued in the service with such knowledge.
    TEd. Note. — Por other cases, see Master and Servant, Cent. Dig. §§ 544-546; Dec. Dig. § 204.]
    6. Evidence (§ 548) — Experts — Examination-Pacts Forming Basis oe Opinion.
    In an action for personal injuries, testimony by physicians relative to an examination of plaintiff, subsequent to his injury, and for the' purpose of testifying as witnesses as to his condition and based on objective and subjective examinations, was admissible.
    [Ed. Note. — Por other cases, see Evidence, Cent. Dig. §§ 2346, 2365; Dec. Dig. § 548.]
    7. Appeal and Error (§ 690) — Questions Presented by Record — Evidence.
    Where bills of exception to the admission of evidence merely show that the defendant objected to certain medical witnesses testifying in the case as to the condition of plaintiff, but do not show what the evidence objected to was, there is nothing for the court to consider.
    [Ed. Note. — Por other, cases, see Appeal and Error,- Cent. Dig. §§ 2897-2899, 2902-2904, 2906, 2908; Dec. Dig. § 690.]
    8. Trial (§ 122) — Argument oe Counsei>-Pailure to Call Witness.
    In an action for injuries by falling into a ditch while engaged with another employé in carrying a heavy rod, argument of counsel for plaintiff that such other employé was in attendance as a witness for defendant, but that defendant did not put him on, and that if plaintiff’s statement was not true the defendant could have denied it by such witness, if error, was not ground for reversal.
    [Ed. Note. — Por other cases, see Trial, Cent. Dig. § 299; Dee. Dig. §, 122.]
    9. Appeal and Error (§ 1060) — Harmless Error — Argument oe Counsel.
    The use of improper language by counsel does not, of itself, furnish sufficient ground for reversing a judgment; but it is only where the preponderance of the evidence seems to be against the verdict, or where the verdict seems excessive and there is reason to believe that it may have been affected by such argument, that it becomes a ground for reversal.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. § 4135; Dec. Dig. § 1060.]
    On Motion for Rehearing.
    10. Master and Servant (§ 291) — Action eor Injuries — -Instructions—Conformity to Pleading and Issues.
    In an action by a car repairer for injuries from falling into a ditch while carrying a heavy rod, where it was alleged that plaintiff did not know of the condition of the ditch, and that defendant did and also knew that em-ployés were, using that part of the land in the performance of their work, and negligently failed to cover it up or inform plaintiff of its dangerous condition, and there was evidence ' upon such issue, it was proper to charge the jury thereon.
    [Ed. Note. — Por other cases, see Master and Servant, Cent. Dig. §§ 1133, 1134, 1136-1146; Dec. Dig. § 291.]
    Appeal from District Court, Milam County; J. C. Scott, Judge.
    Action by T. M. Williams against the International & Great Northern Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Chambers & Baskin, of Cameron, Doremus, Butler & Henderson, of Bryan, and Wilson, Dabney & King, of Houston, for appellant. Henderson, Kidd & Gillis, of Cameron, and J. W. Garner, of Rockdale, for appellee.

      For other cases 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 Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   RICE, J.

This suit was brought by appel-lee to recover damages for personal injuries sustained on account of the alleged negligence of appellant, for whom he was then working as a car inspector and repairer at Valley Junction. The negligence alleged consisted of the failure of appellant to furnish him with a reasonably safe place to work, in this, that it permitted a ditch running across a portion of its yards at said place to become and remain so obscured from view by a rank growth of Johnson grass, that he, while in the discharge of his duties carrying a draft rod across said yard, stepped into said ditch and was injured. The defense interposed, besides a general denial, embraced pleas of contributory negligence and assumed risk, and special pleas to the effect: First. That the hotel and plot of ground connected therewith and through which the ditch extended had never been used by the company as a place for its employés to work, nor was it contemplated that such place should be so used, and that it was not the duty of appellee to go across or over same in the discharge of his duties as car inspector and repairer; but, on the contrary, his doing so was voluntary upon his part, for which reason appellant was not liable. Second. That defendant had in fact furnished a safe place for its employes to work and perform their respective duties at Valley Junction; that it provided several safe ways and walks through its yard at said place for its employes to pass in the performance of their duties; that, at the time appellee and his assistant Lusk were carrying said draft rod, there were several safe ways open to them, which were in constant use by its employes; but, notwithstanding this, he and said Lusk voluntarily went from the freight depot to the oil track across an untraveled, rough piece of -ground, over which there was no path or walk, through which said ditch ran, and, if plaintiff was injured as alleged, it was due to his own deliberate choice of routes which brought about his injury, for which reason appellant was not liable. Third. That appellant had leased the hotel and premises through which the ditch ran to the Gulf Coast News Company, and at the time of the accident had no lawful control thereover, and hence was not responsible to appellant. A jury trial resulted in a verdict and judgment in behalf of appellee, from which this appeal is prosecuted.

The facts, briefly summarized, show that appellant’s main line and its Ft. Worth division (the first running practically east and west, and the latter north and south) cross each other at right angles at Valley Junction ; and that just east of and adjacent to the latter track, and upon both sides of the former, the railway yards are situated, lying in a triangular shape, the Ft. Worth division being the base, and the sides of which are formed by a switch track running northwesterly from a point on the main line about 300 feet of their intersection, to the Ft. Worth division, the south side being a spur track extending from about the same point on the main line in a southwesterly course to said Ft. Worth division. Within this triangle is the hotel, with several outbuildings on the north side thereof, and on this switch track is a freight depot, at which place the draft rods had been left for appellee’s use in repairing cars. Appellee and his helper Lusk, at the time of the accident, were engaged in carrying one of these rods on their shoulders from the freight depot across the yards to a car on the spur track, for the purpose of repairing same, and in passing over said ditch stepped therein, receiving a jar and jolt which brought on hernia, from which he has been seriously injured, and since which time he has been unable to work. While there was a path running on the west side of the hotel from the freight to the passenger depot, and another leading from this to the roadway on the east side of the hotel across the main line track, over which it is contended appellee could have carried these rods, yet there is ample evidence on his part to the effect that these routes were impracticable, for the reason that he was unable to pass some of the outbuildings with said rods; and, in addition to that, that they were farther than the route traveled by him. The evidence shows that these rods were about 32 feet long, and weighed over 200 pounds. It was also shown that the ditch into which he stepped was dug by the railway company, and that it was the common practice and custom for the employés on said yard to go straight from the freight depot across this plot of ground through which the ditch extended in performing their work, and that ho himself had often passed that way in the discharge of his duties. This ditch when first constructed had been inclosed and covered by plank, and was some 12 inches wide by 14 inches deep, and extended from the northeast corner of the hotel in a northeasterly direction to a point where it emptied into a cesspool, and was used for carrying off the waste water from the hotel kitchen. Johnson grass had been allowed to grow over this entire plot of ground, obscuring this ditch from view. The plank over it at the point where appellee stepped had either rotted or been displaced, and it appeared that appellee, although he had worked in the yards several years, was not cognizant of the location of said ditch; that on account of the weight and length of this rod it wobbled and was difficult to carry, and appellee and his helper had safely carried one over the same route just prior to the injury.

It is contended on the part of appellant that the court erred in refusing to instruct a verdict in its behalf on the ground that the evidence did not warrant a recovery. It is well settled, however, that when there is any evidence raising an issue, and upon which a verdict may be rendered in behalf of the plaintiff, that then it is a question of fact for the consideration of the jury, and it would be improper to give a peremptory instruction against him. See Texas Brokerage Co. v. Barkley & Co., 49 Tex. Civ. App. 632, 109 S. W. 1001; Citizens’ Railway Co. v. Griffin, 49 Tex. Civ. App. 569, 109 S. W. 999. So, in the instant case, notwithstanding the contention of appellant that the plot of ground through which the drainway ran was not a part of its yards at said point, and that it had furnished reasonably safe paths across its yards for its employes, still we think there was ample evidence to warrant the court in submitting the issue raised by the pleadings to the jury. We therefore overrule the assignment presenting this contention.

Nor did the court err in failing to direct a verdict for appellant on the ground that the hotel and premises through which the ditch ran had been leased by it to the Gulf Coast News Company, and was therefore under the control of the latter at the time of the accident, for the reason that an inspection of said lease leaves it doubtful as to whether or not it embraced or included the drainway in question. But even if it could be so held, yet there was nothing therein to indicate that exclusive control or possession was given thereover to said news company; and the evidence is sufficient to show that during the entire period of this lease employes of appellant continuously used this plot of ground in the discharge of their duties, which must have been performed with the acquiescence and knowledge of appellant. Hence we think it would have been improper to have so instructed the jury. Besides this, the court submitted this issue to the jury, who were directed to find in favor of appellant, if they should believe that said lease included the plot of ground on and over which plaintiff was working when he stepped into the ditch.

Notwithstanding appellant may have furnished several different paths or routes by which appellee could have safely carried the rod in question, yet he was not wholly precluded from recovery by reason of the fact that he adopted another and different route, even though it be conceded that by so doing he may have been guilty of contributory negligence; because contributory negligence, either in fact or as matter of law, under the facts of this case, was not a complete defense to plaintiff’s recovery, but could only diminish the amount thereof (see Acts of 31st Leg. p. 279 et seq., approved April 13, 1909; R. S. 1911, c. 10, art. 6649; Freeman v. Gerretts, 153 S. W. 1163), and a proper charge-on this subject was submitted by the court to the jury. Therefore the several charges set out under the third, seventh, eighth, and ninth assignments, presenting this theory of the case, were properly refused.

The court in the fifth paragraph of its charge told the jury that if they believed from the evidence that before receiving his injury the plaintiff knew of the existence of the ditch in question, and the dangerous condition, if any, of the route he traveled with the draft rod, and “if you further believe from the evidence that there was another and a safer way which he might have traveled, then you will find him guilty of contributory negligence.” Appellant insists that this charge is error, for the reason that if plaintiff knew of the existence of the ditch and chose the way he did, when there was a safer one he might have traveled, he assumed the risk, and this would bar his recovery; and therefore the question was not one of contributory negligence, but of assumed risk, and that the court erred in failing to so instruct the jury. If this be granted, then it became appellant’s duty to present a special charge incorporating this phase of the case, which it failed to do, and therefore cannot complain. But its contention is not correct for the reason that, notwithstanding that appellee may have known the danger, still, if a person of ordinary care would have continued in the service with such knowledge, then the defense of assumed risk would not have applied. See chapter 163, Acts of 1905, p. 386.

We do not think the court erred in permitting Drs. Gill and Epperson to testify relative to an examination of plaintiff, made subsequent to the injuries in question, and giving the result thereof, which examination was made for the purpose of testifying as witnesses as to his condition, and was based on objective and subjective examinations, for which reasons the eleventh and twelfth assignments, complaining of the court’s permitting said witnesses to so testify, are overruled.

But, apart from this, it will be found on inspection of the bills of exception that the point is not properly raised, in this: That the bills did not point out or contain the testimony objected to, but show that appellant merely objected to the witnesses testifying and giving evidence in the case, without setting out the particular evidence objected to, for which reason they should not be considered.

It is urged that the court erred in failing to grant a new trial on account of the improper argument of counsel for plaintiff. It appears from the bill that during the argument of J. W. Garner, Esq., counsel for plaintiff, he said in addressing the jury that A. D. Lusk was in attendance on the trial of this case as a witness for defendant, but defendant did not put him on; “that Lusk was a helper to Mr. Williams in the carrying of that rod, and, if what Mr. Williams has stated was not true, that they could have denied that by Mr. Lusk; and that, if Mr. Lusk had been put on the stand, he would have stated what Mr. Williams had stated.” At this juncture defendant objected and excepted; whereupon said counsel stated to the jury: “I do not know what Mr. Lusk would have testified, and have not been told; but I believe if he had testified he would have testified as Williams did.” These remarks were objected to on the ground that they were not warranted by the evidence; that the failure of Lusk to testify afforded no ground or reason for counsel to testify for him, or animadvert upon what he would have testified, if placed on the stand as a witness; and because such remarks were calculated to influence and rouse the passion of the jury against the defendant. It will be recalled that the testimony shows that Lusk was aiding appellee in carrying the rod at the time of the injury; and, if the plaintiff had made incorrect statements respecting the accident, then it was within the power of counsel for defendant to have contradicted him by this witness. Such remarks of counsel, under the circumstances, were not, in our judgment, such error, if error at all, as should cause a reversal. Similar argument has been held by our own courts legitimate. See M. P. Ry. Co. v. White, 80 Tex. 207, 15 S. W. 811, where counsel for plaintiff in his closing argument, at great length, commented upon the failure of appellant to produce certain witnesses, who had knowledge of the transaction, and who could have contradicted plaintiff’s testimony, if untrue; wherein Mr. Justice Oollard, delivering the opinion, said: “It is customary to permit attorneys to comment upon the absence of witnesses, or their nonproduction, when they are shown to be cognizant of the facts in issue. It is a mere matter of argument, and may be discussed by either side, trusting to the good sense of the jury to properly estimate the value of such argument.”

In Gray v. Burke, 19 Tex. 233, where the only ground urged for reversal was the refusal of the court to arrest comments of counsel upon the failure of defendant to introduce as a witness upon the trial his vendor, the issue being as to the identity of an animal, the court, referring to such failure, said: “It undoubtedly was a circumstance which admitted of tan inference unfavorable to the party, and was therefore the proper subject of observation by counsel.” See, also, 38 Cyc. 490 et seq., to the same effect.

Besides this, it is held, in I. & G. N. R. R. Co. v. Irvin, 64 Tex. 529, that: “The use of improper language or course of argument by adverse counsel, within itself, furnishes no sufficient reason for reversing a judgment; and it is only in cases in which the preponderance of the evidence seems to be against the verdict, or in cases in which the verdict seems excessive and there is reason to believe that the verdict may have been affected by such course of conduct, that it becomes a ground for reversal. Parties are not to be punished by reversals for the improprieties of their counsel, unless there is reason to believe that the course pursued affected the merits of the case.” In the instant case, the verdict is not large, and we are not inclined to disturb it on account of the remarks complained of, because we do not believe; especially in view of the latter part of counsel’s statement, that such argument could have influenced the jury to appellant’s prejudice.

The remaining assignments have had our careful consideration, but are regarded without merit, for which reason they are overruled.

Finding no reversible error in the record, the judgment of the trial court is affirmed.

Affirmed.

On Motion for Rehearing.

It is earnestly insisted by counsel for appellant in an able and ingenious motion for rehearing that there is no evidence in the record showing that the ground over which plaintiff was walking at the time of his injury was part of the yards of appellant and used in furtherance of its business; and no evidence that it was necessary for plaintiff to use the same in the performance of his work. Counsel must have overlooked the testimony of the plaintiff himself, wherein he stated that it was common practice for the employés of appellant to go straight across this plot of ground in thp performance of their work, and that he himself would often pass that way. He further stated that it was customary and common for himself and helpers, and other employés, to go across that yard. “There was no other way in the world of getting material to these cars without going across these plats of ground between the track's, because the tracks were always full of cars, and we could not go up and down them, but always went across, just anywhere we could get to a ear with the stuff we had to repair it with. We have always done that.” He further stated that he could not follow that path (the one that appellant contends he should have traveled) from the freight depot and make the turn with the 32-foot rod; that he stopped and looked and could not make the circuit It was shown that said rod was long, very heavy, and difficult to carry.

Johnson, a witness who had worked at the hotel up to 1907, testified that he had seen several employés of the company go across this plot of ground connected with the hotel, such as brakemen, but it was not a frequent occurrence, and that section men cut the grass on this plot out as far as the drainway.

Robinson, an employé of the company and witness for appellant, testified that frequently he and his foreman went across that plot of ground east of the wagon road “where that drain box is situated, jus't working there in the ear department”; that they went across that whole yard sometimes.

Gaché, whose evidence was relied upon by appellant, testified that he left there in 1908, and that -what he said had relation to conditions prior to that time. The accident in question occurred in 1911.

Under this evidence it was proper for the court to refuse the peremptory charge requested by appellant, and to submit the issue raised thereby for the consideration of the jury.

Appellant contends that, since the plot of ground over which appellee was walking at the time of the injury was no part of its yards, the court erred in submitting the doctrine of comparative negligence. This assumes that the evidence of Williams was untrue, which was a matter for the determination of the jury, because, if said plot had been used in the manner and to the extent as testified to by him, then it was a question of fact whether said company so acquiesced in such use as to make it a part of such yard.

Whether the drainway in question was included within the lease to the hotel company was also a question of fact, and as such was properly submitted to the jury. Notwithstanding the drainway was in fact used in connection with the hotel, still, if it did not come within the terms of the lease, and the railroad company also used the plot of ground, or permitted its employés to do so for a long period of time with its knowledge or acquiescence, the same would be regarded as a part of its yards, and appellant would be responsible for failure to keep it in reasonably safe condition. There was pleading to the effect that the receiver of the company had knowledge that said plot of ground was commonly used by plaintiff and other em-ployés in the performance of their work. There was evidence upon this issue. Hence the court did not err in charging the jury thereon. It was alleged that the plaintiff did not know of the condition of the ditch, and that the defendant did, and that it also knew that its employés were using this plot of ground for their work, and negligently failed to cover up said ditch, or advise or notify plaintiff of its dangerous condition.

After a full consideration of appellant’s motion for rehearing, we are of the opinion that the same is not well taken, and should be overruled.

Motion overruled.


text:
    HOLLINGSWORTH v. WM. CAMERON & CO., Inc.
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 6, 1913.)
    1. Deeds (§ 105) — Partnership (§ 76)— Construction oe Deeds — Conveyance to Firm.
    A deed recited that for and in consideration of $5, and for the further consideration of having previously sold and executed a bond to H. & Bro. to make title to the land, the grantor for such consideration and in satisfaction of the bond did convey, etc., to one-, his heirs and assigns forever, to have and to hold the land, etc., “to himself and heirs forever.” Seld that, H. & Bro. being a firm, the deed would be considered as conveying the title to the land to them as a firm, and, in the absence of proof that the partnership was not an equal one, it vested the title to the land conveyed in the two partners equally.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 276, 277, 292; Dec. Dig. § 105; Partnership, Cent. Dig. §§ 116, 124, 148; Dec. Dig. § 76.)
    2. Judgment (§ 497) — Collateral Attack-Service — Recital.
    Where a judgment foreclosing a tax lien on land recited that the law in all things had been complied with and that defendants had been regularly served with notice of plaintiff’s suit, it imported absolute verity in a collateral proceeding, as to the fact recited, so that plaintiff in trespass to try title'could not show that the judgment was void for want of proper process and service.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 937, 938; Dec. Dig. § 497.]
    3. Trial (§ 392) —Findings —Requests — Conclusion.
    It is not error to refuse to make a requested finding, which in effect is a mere conclusion.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 916-919; Dec. Dig. § 392.]
    4. Appeal and Error (§ 519) — Record-Stipulations — Eeeect — Embodiment in Findings.
    A stipulation between counsel that the citation and service in another cause could be offered in evidence, and that it was the very citation on which the judgment in that cause was rendered, was not affected by the court’s failure to embody it in his findings but could be considered on appeal as an admitted fact.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2356-2403; Dec. Dig. § 519.]
    Appeal from District Court, Trinity County; S. W. Dean, Judge.
    Trespass to try title by Mrs. M. A. Hol-lingsworth against Wm. Cameron & Co., Incorporated. Judgment for defendant, and
    plaintiff appeals.
    Affirmed.
    The suit was by appellant against appellee in trespass to try title to 213 acres of the Jesse A. Oakley survey in Trinity county. Appellee pleaded denial and not guilty and by cross-action to quiet title and possession. In a trial to the court without a jury, judgment was rendered against appellant and in favor of appellee for the land.
    The findings of fact made by the court are in substance as follows: (1) That the Jesse A. Oakley survey of 640 acres was patented November 6, 1861, to Willis J. Roan as as-signee of Oakley. (2) That-on October 22, 1862, the heirs of Willis J. Roan conveyed to H. J. Jones 320 acres, embracing the land in controversy, which deed was duly recorded. (3) That both plaintiff and defendant claim title to the land in suit under H. J. Jones as common source of their title. (4) That H. J. Jones on January 22, 1866, executed a deed to the land in controversy, which was duly recorded July 6, 1876, reading: “Know all men by these presents that I, Hilliard J. Jones, of said state and county, for and in consideration of five dollars to me in hand paid, and for the further consideration of having heretofore sold and executed a bond to B. P. Hollingsworth & Bro. to make title to the land hereinafter described, do for the consideration aforesaid and in satisfaction of said bond, and being by them so required, do hereby convey, release and confirm unto -, his heirs and assigns forever [here follows description]. To have and to hold said 213 acres of land to himself and heirs forever, and I warrant title to the same as against myself, heirs and assigns and the heirs of Willis J. Roan.” (5) That the firm of B. P. Hollingsworth & Bro. was composed of B. P. and S. P. Hollingsworth, both of whom died many years before 1890. B. P. Hollingsworth left no will so far as the evidence shows, and he left as his sole heir his widow, Annie Hollingsworth, who afterwards married O. O. Searcy, and they conveyed to defendant an undivided one-half interest in the land. (6) That S. P. Hollingsworth left a will, which was probated in Johnson county but was not probated or recorded in Trinity county, devising all his property to his wife, the plaintiff in this suit, and there was not any evidence on the records of Trinity county of appellant’s claim to the land. (7) That in, 1900 a suit for unpaid taxes was brought by the state in the district court of Trinity county against the unknown owners of the J. A. Oakley survey, of which the land in suit is a part, and for foreclosure of the tax lien, and judgment was rendered for the delinquent taxes of $29.16 against the land and costs of suit, together with a foreclosure of the tax lien. The judgment, as to citation, recites: “And it appearing to the court that the law in all things has been complied with and that the defendants have been regularly served with notice of plaintiff’s suit.” And (8) that an order of sale issued on the judgment prior to January 1, 1901, and the land was duly sold and a deed made by tbe sheriff to defendant in this suit..
    Crow & Phillips and A. M. Campbell, all of Groveton, for appellant. J. A. Platt, of Groveton, and Sleeper, Boynton & Kendall, of Walo, for appellee.

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

   LEVY, J.

(after stating the facts as above). The first and third assignments are here considered together as presenting the controlling question in the appeal. The contention made by the assignments is that the evidence established title in appellant to the land sued for and wholly failed to establish any title residing in appellee, and that the court erred in failing to so conclude as a matter of law.

The deed executed by Jones, the common source, on January 22, 1866, was properly construed by the court as designed and intended to convey to B. P. Hollingsworth & Bro. the title to the land therein described. And it is admitted that B. P. Hollingsworth & Bro. was at the time a firm composed of B. P. Hollingsworth and S. P. Hollingsworth; and, there being no proof that the partnership was not an equal partnership, the court correctly held that S. P. Hollingsworth was entitled to a one-half interest in the land. And the appellant, Mrs. Hollingsworth, by the will of S. P. Hollingsworth, her husband, would acquire his interest in the land. But such title as Mrs. Hollingsworth may once have had in the land in suit through the will was, it appears, divested out of her in 1900 by the judgment in favor of the state foreclosing a tax lien and the sale thereunder by the sheriff to appellee. It appears there was never any evidence on the records of Trinity county of appellant’s claim to the land. It could not therefore properly be said that the court erred as a matter of law in not decreeing title in appellant, in view of the said judgment in favor of the state and the sale thereunder.

But appellant insists that the judgment foreclosing the tax lien is void because of defective citation or notice. This contention is purely a collateral attack on such judgment, and the validity of the judgment cannot in this suit of trespass to try title be inquired into or brought in question in a collateral attack, as here. Jameson v. O’Neall, 145 S. W. 680; Kenson v. Gage, 34 Tex. Civ. App. 547, 79 S. W. 605. The authorities appellant cites are where the judgment is silent as to service upon the unknown owner. The judgment here recites “that the law in all things has been complied with and that the defendants have been regularly served with notice of plaintiff’s suit.” As the judgment recites due process, it must be held, as against a purely collateral attack, as importing absolute verity as to the fact recited. Hence it does not appear that the court erred, and the assignments are overruled. This requires that the judgment be affirmed, as the remaining assignments present merely immaterial matters. However, we pass on the remaining assignments.

The second assignment complains' of the want of any evidence to show that Mrs. Annie Hollingsworth, joined by her second husband, Searcy, conveyed a one-half interest in the land to appellee, as appears in the court’s finding. The contention of appellant should be sustained; but neither the trial court nor this court has based any judgment upon any such finding of fact.

The fourth assignment complains of the refusal of the court to make the precise finding therein requested. The finding requested was in effect a mere conclusion, and there is no injury resulting to appellant.

The fifth and sixth assignments complain of the refusal of the court to embody in his findings as findings the matters of the written agreement of counsel wherein it was agreed that the citation and service in the cause of the state against unknown owners could be offered in evidence, and that it was the very citation that the judgment was rendered upon. The agreement of the parties was not vitiated by the mere failure of the court to embody it in his findings and could be here considered nevertheless as an admitted fact; and consequently no harm was done appellant. Besides, the agreed fact could not in this ease, as before stated, on a collateral attack affect the validity of the judgment in the case of the state against the unknown owners, or its effect.

The judgment is affirmed.