author: MOURSUND, J.

text:
    GORDON JONES CONST. CO. v. LOPEZ.
    (No. 5321.)
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 11, 1914.
    On Motion for Rehearing, Feb. 3, 1915.)
    1. Master and Servant (§ 288) — Injuries to Servant — Assumed Risk.
    Where plaintiff, while assisting in taking down a wall, stepped on a plaster of paris cornice or molding, which, breaking off, precipitated plaintiff to the earth below, j;he danger of stepping on the cornice was not, as a matter of law, as open and apparent to plaintiff as to defendant’s vice principal, nor so open and apparent that a man of ordinary prudence would not have stepped on it.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1068-1088; Dec. Dig. § 288.]
    2. Master and Servant (§ 278*) — Injuries to Servant — Plan—Evidence.
    On an issue as to whether a master has provided a reasonably safe plan for doing the work in which the servant has been injured, evidence of the use of the same method by other persons engaged in the same business, while admissible, is not conclusive.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 954, 956-958, 960-969, 971, 972, 977; Dec. Dig. § 278.]
    3. Master and 'Servant (§ 278) — Injuries to- Servant — Method of Work — Safe Plan.
    Where a servant was injured while assisting in taking down a wall, proof that the plan adopted by defendant was the one commonly used by persons engaged in the business, and there was no showing that any person ever used a different method, did not establish, as a matter of law, that defendant used reasonable care to adopt a safe method of doing the work.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 954, 956-95S, 960-969, 971, 972, 977; Dee. Dig. § 278.]
    4. Master and Servant (§ 296) — Injuries to Servant — Contributory Negligence.
    An instruction that, on the issue of contributory negligence, the jury might consider all the circumstances in evidence, including plaintiff’s experience, in determining whether plaintiff acted as a person of ordinary prudence, was not erroneous, though it is not approved.
    [Ed. Note. — For other eases, see Master and Servant, Cent. Dig. §§ 1180-1194; Dec. Dig. § 296.]
    5. Master and Servant (§ 286) — Injuries to Servant — Latent Defects — Question for Jury.
    Where a servant was injured by the fall of a cornice, and there was some proof that the wall itself gave way under his foot, causing his fall, defendant was entitled to have the issue of latent defects in the wall submitted to 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.]
    6. Trial (§ 349*) — 'Special Issues — Submission — Special Charges — Refusal.
    The trial court is not justified in refusing a request to submit the case on special issues merely because at the same time requests were made for the giving of special charges.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 823-827; Dec. Dig. § 349.]
    7. Trial (§ 352) — Special Issues — Submission.
    A request to submit a case on special issues may not be properly denie'd because defendant did not accompany its request with a copy of the special issues desired submitted.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 840-842, 844, 845; Dec. Dig. § 352.]
    S. Trial (§ 349*) — Special Issues — Submission.
    Under Yernon’s Sayles’ Ann. Civ. St. 1914, art. 1984a, providing that the court, on the request of either party, shall submit the cause on special issues, it was prejudicial error for the court to refuse such a request because the case was so submitted at a prior trial, and the jury failed to agree, due, as the court thought, to the involved character of the issues necessary to be submitted.
    [Ed. Note. — For other cases, see Trial, Cent.’ Dig. §§ 823-827; . Dec. Dig. § 349.]
    9. Appeal and Error (§ 1062) — Prejudice-Submission of Case — Special Issues.
    Where the court, by erroneously refusing .to submit the case on special issues, deprived defendant of a statutory right, the Court of Civil Appeals could not hold that the error was without prejudice.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4212-4218; Dec. Dig. § 1062.]
    10. Evidence (§ 512) — Opinion—Matters o.f Expert Knowledge.
    Where plaintiff was injured while assisting in demolishing a wall, whether it was safe to put a man on the wall with a crowbar and a hammer related to a matter on which it was unnecessary to submit expert testimony.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2316; Dec. Dig. § 512.]
    11. Trial (§ 10814) — Argument of Counsel —Reference to Insurance Company.
    It is error for plaintiff’s attorney, in examining jurors on their voir dire, to ask questions which intimate that an insurance company is defending the case.
    [Ed. Note. — For other cases, see Trial, Dec. Dig. § 108%.]
    On Motion for Rehearing.
    12. Trial (§ 223) — Instructions — Written Charge — Nature and Form.
    Rev. 'St. 1895, art. 1316, as amended by Acts 28th Leg. c. 39, § 1, requires the court to give a written charge to the jury, unless expressly waived by the parties, which charge may be a general one or may be made up of special issues.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 514^516; Dec. Dig. § 223.]
    13. Trial (§ 352) — Special Issues — Submission — Preparation op Charge.
    Vernon’s Say les’ Ann. Oiv. St. 1914, art. 1984a, gives to a party the right to have the case submitted on special issues, the charge to be drawn by the court, and, if either party thinks necessary or proper issues have been omitted, he must proceed to have the omission supplied, as prescribed by article 1985.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 840-842, 844, 845; Dec. Dig. § 352.]
    14. Appeal and Error (§ 832) — Rehearing —New Issues — Bankruptcy.
    Where the fact that appellant had become a bankrupt was not shown by the record, it could not be considered on an application for rehearing.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3215-3228; Dec. Dig. § 832.]
    15. Courts (§ 247) — Intermediate Appeal— Certification to Supreme Court.
    Where review by the Supreme Court may be obtained by an application for a writ of error, the Court of Civil Appeals will not certify questions to the Supreme Court for an answer.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 487, 749, 751-754, 757, 759, 760, 762-764; Dec. Dig. § 247.]
    Appeal from District Court, Bexar County; R. B. Minor, Judge.
    Action by Ladislado Lopez against the Gordon Jones Construction Company. Judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    M. J. Arnold, R. S. Cozby, and W. S. Peyton, all of San Antonio, for appellant. J. D. Childs and James W. Brown, both of San Antonio, for appellee.

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

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

   MOURSUND, J.

Ladislado Lopez sued the Gordon Jones Construction Company for damages for injuries sustained by him because of falling from a wall which he was assisting in tearing down while in the employ of said company. He alleged that John Crawford was foreman or vice principal of .defendant company, acting as the personal representative thereof, and was overseeing, directing, and controlling the work at which plaintiff was engaged; that Crawford negligently sent plaintiff to work on top of one of the walls, which was then and there being torn down, at a place which was unusual, improper, insecure, and unsafe, and plaintiff was inexperienced in that class of work and did not understand and appreciate the danger attending the same and the means of avoiding same, and could not have discovered the same by the exercise of ordinary care, which ignorance, inexperience, and want of knowledge on plaintiff’s part was known by defendant, or would have been known by the exercise of ordinary care, and while plaintiff was engaged in said work, and using due care in stepping from one place to another upon said wall, he placed his foot upon what seemed to him a part of the top of the wall, which appeared safe to him, for the purpose of walking upon it, but which place was insecure and highly dangerous for any person to walk or work upon because, instead of being a solid wall, it was in fact only a cornice or plastering of mortar insecurely fastened to the wall, and said cornice or plastering gave way from plaintiff’s weight when he stepped upon the same and precipitated him to the ground; that defendant gave plaintiff no warning or notice of the defect in the wall, occasioned by such cornice, nor of the danger of walking thereon nor instructions how to avoid the same, and said cornice was in such condition and position and so attached to the wall that plaintiff did not and could not, by the exercise of ordinary care, have discovered the said condition of the same and the danger of stepping upon same, which defendant knew, or by the exercise of ordinary care would have known. By way of a separate count, plaintiff alleged negligence on the part of defendant in failing to furnish him a safe place to work and a safe plan and safe instrumentalities for doing the work; .that the work- should have been done by means of a temporary scaffold, upon which plaintiff could have stood, or should have used a derrick with a rope, block, and tackle and grabhooks to obviate the necessity of plaintiff’s standing upon the wall. In this connection plaintiff’s inexperience and lack of knowledge of the dangers incident to the work and of the necessity of using a scaffold or derrick were fully alleged.

Defendant, after his denials of plaintiff’s allegations, alleged: That, if the wall was in a dangerous condition, plaintiff created such condition during the progress of his work of tearing it down; that in doing such work the stones would be loosened, and as the material was loosened, and the joists pulled out, new dangers would constantly be presented on account of parts of the wall becoming loose or the footing insecure, and that plaintiff knew this, or in the ordinary discharge of his duties must necessarily have known it, and by the exercise of ordinary care in the discharge of his duties would have known it, and the risks thereof, and therefore he assumed the risks of such dangers. Defendant further pleaded that plaintiff assumed the risk of the work being done in the manner in which it was done, of stepping too near the edge of the wall, of portions of the wall becoming loose, especially near the edges; that he assumed the risk, knew of the defect that caused his fall, and necessarily would have known thereof in the discharge of his duties, together with the attending risks. Defendant further pleaded that plaintiff was guilty of con-tributary negligence in failing to observe repeated warnings to keep the top of the wall clean and clear of rubbish, in moving about upon the wall in a reckless way in despite of the warnings to be more careful where he was stepping, in failing to keep a proper lookout, and in failing to make a proper inspection to see that the footing was safe before undertaking to walk, in stepping too near or beyond the edge of the wall instead of staying in the middle thereof, and in failing to inspect the wall by looking at it, feeling of It, and striking it with his tools before putting his foot down. Defendant also alleged the defense of latent defect in the wall.

The trial resulted in a verdict and judgment in favor of plaintiff for $5,000.

Assignments 1 and 2 complain because of the court’s refusal to give a peremptory instruction in favor of appellant. It is contended that the evidence is insufficient to show negligence on the part of appellant, and further that appellee assumed the risk, as a matter of law. After a careful reading of the statement of facts, we conclude that the assignments should be overruled. Negligence is predicated upon the failure to warn appellee of the danger of stepping upon a plaster of paris cornice or molding. Much of the testimony is not as clear to us as it was to the jury, because upon the trial a “model” of the wall and cornice was exhibited to the jury, and many questions asked with reference thereto, the answers to which furnish us with no light upon the issues in the case. We are unable to say, as a matter of law, that the danger of stepping upon such cornice was as open and apparent to plaintiff as to the defendant’s vice principal, or so open and apparent thát a' man of ordinary prudence would not have stepped upon the same.

Assignments 3 and 4 complain of paragraph 2 of the court’s charge, the contention relating to the sufficiency of the evidence, and, as said assignments raise the same question as assignment No. 1, they are overruled.

The fifth assignment is without merit, and is overruled.

By assignments 6 and 7 complaint is made of paragraph S of the charge, wherein the issue is submitted whether appellant was negligent in the matter of furnishing a plan or method of doing the work. No objection is made in the sixth assignment to the form of the charge, but the objection is that there is no evidence to justify the submission of the theory of negligence with respect to the method of doing the work. Under our decisions, the real issue is whether the employer has used ordinary care to provide a reasonably safe method or plan of doing the work. Evidence of the use of the same method by other persons engaged in the same business is admissible upon the issue of ordinary care, but such evidence furnishes no conclusive guide in determining the issue. In this case the -charge emphasized the question whether the usual method was pursued, when there was no evidence that any person ever used any other method, and, if that was the test, it could be said without further discussion that the issue should not have been submitted. We have carefully considered the evidence and find that it is overwhelmingly to the effect that the plan used by appellant was the one commonly used by persons engaged in the business; but, in view of the witness Blum’s testimony, we cannot say, as a matter of law, that appellant used ordinary care to furnish a reasonably safe method of doing the work. The seventh assignment is a contention that the issue should not have been submitted, because, as a matter of law, appellee assumed the risk incident to the plan or manner in which the work was being done. Assumed risk is based upon the theory of actual or constructive knowledge. The evidence does not disclose knowledge on the part of appellee of the dangers incident to stepping upon the cornice, nor that such danger was so open or obvious that, with the experience he had, he can be charged with constructive notice. The sixth and seventh assignments are overruled.

In assignments 8 and 9 complaint is made of the seventh paragraph of the court’s charge, which reads as follows:

“In determining the question of contributory negligence on plaintiff’s part, under this charge or. under the special charges given you, you may consider all the facts and circumstances in evidence before you, including his experience, and determine from those circumstances whether or not the plaintiff acted as a person of ordinary prudence would have acted under the same or similar circumstances.”

Appellee cites the case of Hillsboro Oil Co. v. White, 54 S. W. 432, iu support of the correctness of the charge of the court. A writ of error was denied in that case. We consider the case as sufficient authority to require the overruling of the assignment, although we do not approve the charge. The special mention of certain matters may induce the jury to consider that the court regards such matters as entitled to" great weight. The assignments are overruled.

Assignments 10 and 11 relate to the issue of latent defect in the wall; it being contended that a charge should have been given upon said issue. At first glance it would seem that there is no merit in this contention, in view of the admission of appellant’s counsel in their brief as follows:

“The undisputed testimony shows that the wall was strong and solid after the accident and the wall itself did not fall. It is not necessary for us to again quote testimony to show that the wall did not fall and no part of it fell with Lopez.”

However, a reading of appellee’s own testimony convinces us that it is subject to the construction that the wall itself gave way under his foot, causing his fall. This, it is true, is contradicted by all the other evidence ; still it made an issue which appellant was entitled to have the jury pass upon. The assignments are sustained. •

There is no merit in the twelfth assignment of error. The court had fully charged upon the defense, urged by appellant, and besides the special charge was argumentative and might have been taken as an intimation by the court of the sufficiency of the facts therein detailed as a warning with respect to the cornice.

There is no merit in the thirteenth assignment. The witness Brauch only testified to his opinion, and it is apparent that even his opinion waivers between two theories, one that appellee slipped off the wall because it was slanting and the other that he stepped on loose rubbish which caused him to fall.

There is no merit in assignments 14 and 15, and they are overruled.

In the sixteenth assignment complaint is made of the refusal of the court to submit the case upon special issues; appellant having made proper request in due time for such method of submission. The bill of exceptions relating to this matter bears the following qualification:

“The request to submit this case on special issues was refused because on- a former trial, wherein the case was submitted on special issues, it was found necessary to submit a very large number of special issues, and the jury failed to agree, for which reason, as well as because of the involved character of the issues necessary to be submitted, the court considered it impracticable to submit the case properly on special issues.”

Appellee contends that, as the record discloses that the special charges heretofore mentioned were requested upon the same day as the request that the case be submitted on special issues, we should presume that they were submitted at the same time as such request, and, that therefore the court was justified in refusing such request. The court’s qualification to the bill of exception shows his reasons for refusing the request, and we see no reason for indulging the presumption that attorneys requested the giving of special charges before it was determined not to grant their request for submission upon special issues.

If the request and the special charges had been submitted at the same time, we would unhesitatingly uphold a refusal of the special charges if the request was granted, because the case should not be submitted partially upon general charges and partially upon special issues, but we doubt seriously whether the court would have been justified in refusing the request for submission on special issues merely because at the same time requests were made for the giving of special charges.

The further objection is made by ap-pellee that appellant did not accompany his request with a copy of the special issues they desired submitted. The statute does not require this, and the request cannot be ignored because of a party’s failure to formulate and request the issues he desires to have submitted. As we conclude that the request was properly made and insisted upon, it becomes necessary to decide whether the court was authorized to deny the same.

Prior to the adoption of article 1984a (Acts 1918, p. 113), it was left optional with the court to grant or refuse a request for the submission of a case upon special issues. The Legislature did not approve of the law as it then stood and enacted article 1984a. The language used in said article is that “the court, upon the request of either party, shall submit the cause upon special issues.” This language is mandatory. Railway v. Jackson, 92 Tex. 638, 50 S. W. 1012, 51 S. W. 330. It is, however, contended that the exception which reads as follows:

“Provided that, if the nature of the suit is such that it cannot be determined on the submission of special issues, the court may refuse * * * to do so”

—leaves it optional with the court to submit a case upon special issues, if the court believes it impracticable to submit the case on special issues, because on a former trial, when so submitted, the jury failed to agree, and because of the involved character of the issues necessary to be submitted. Juries frequently disagree, and the fact that a disagreement has occurred furnishes no ground for refusing to submit the case upon special issues. The same may be said of the fact that the issues are involved. In fact, it has always been generally understood that the more complicated the case the greater the necessity for a submission upon special issues.

In the case of Railway v. Jackson, 92 Tex. 638, 50 S. W. 1012, 51 S. W. 330, Chief Justice Gaines said:

“In very complicated cases it greatly promotes the administration of justice to have a jury find specially the facts of a case, and therefore it may have been thought best * * * to require the judge to submit special issues when either party should request hinq to do so.”

The reasons given by the trial court are not submitted by the statute, and such reasons do not show that the case is one which cannot be determined upon the submission of special issues. The trial court evidently construed the exception to the statute as giving the discretion to refuse the request when the court was of the opinion that the case was of such a character that it could more practicably be decided upon a general charge. But we cannot agree with such construction of the statute. If such had been the meaning intended, the Legislature could easily have said so, and we would then be called upon to decide which was the most practicable way of submitting the case. The statute provides plainly that only cases can be excepted which cannot be determined upon the submission of special issues. This saving clause was evidently put in out of an abundance of caution, and if, as ^s contended, there be no case which cannot be determined upon the submission of special issues, the supposed esception amounts to no exception at all, and the statute requires all cases to be submitted upon special issues, if request be made as provided thereby. Where a proviso follows and restricts an enacting clause generally in its scope and language, it is to be strictly construed and limited to language fairly within its terms.

“If irrelevant to the enacting clause and meaningless with reference thereto, or repugnant to the body of the act, it has been rejected.” Lewis’ Sutherland on 'Statutory Construction, vol. 2, pp. 673, 674.

As we construe the statute, the court erred in refusing the request to submit this case upon special issues. The same construction has been adopted by the Court of Civil Appeals of the Seventh District in the case of Guffey Petroleum Co. v. Dinwiddie, 168 S. W. 439.

We do not feel authorized to hold that depriving defendant of this statutory right was such an immaterial error as to not require a reversal of the judgment. The assignment of error is sustained.

Assignments 17 and 18 relate to questions asked the witness Blum; one being whether to put a man with a crowbar and hammer to tear down the wall of a building of the kind plaintiff was working upon would be an ordinarily safe way of doing the work, and the other being whether it is safe or dangerous, in tearing down such wall, for a man to be put up there with a crowbar and hammer. These questions, we think, relate to a matter upon which it was unnecessary to call in experts, as the jury could be put in possession of all the facts necessary to arrive at the conclusion for themselves. Shelley v. City of Austin, 74 Tex. 612, 12 S. W. 753. However, we would not reverse the case for this error.

Assignments 19, 20, and 21 complain of questions asked the jurors by one of the attorneys for appellee upon their voir dire examination, and assignments Nos. 22, 23, 25, 26, 27, 28, and 29 complain of certain statements made by said attorney in his closing argument to the jury. Assignment 30 complains of the overruling of- a motion to withdraw the case from the jury and impanel a new jury or postpone the case; such motion being based upon the proceedings complained of in the other assignments of error. In order to keep this opinion from becoming too lengthy, we will consider all of these assignments together. Appellant objected in each instance upon the ground that such question or statement was calculated to injure the defendant “by imparting the information or suggestion to the jury that there was an insurance company back of the case.” We have given these assignments of error careful consideration; and although fully appreciating the ingenuity and ability of attorneys for appellee, in seeking to explain away or at least minimize the matters complained of, we conclude that the said assignments, taken together, show such an indulgence in statements calculated to apprise the jury of the fact that appellant was carrying indemnity insurance as to require a reversal of the case. This is a close case upon the facts; in fact, the record discloses that one jury failed to agree upon a verdict; and, under the decisions of this court and other courts of this state, it is well settled that an intimation to the effect that an insurance company will have to pay the judgment may be sufficient to turn the scales against the defendant. Lone Star Brewing Co. v. Voith, 84 S. W. 1100; Beaumont Traction Co. v. Dilworth, 94 S. W. 356; Harry Bros. v. Brady, 86 S. W. 615; Houston Car & Machine Co. v. Smith, 160 S. W. 436 (writ of error denied by Supreme Court); Carter v. Walker, 165 S. W. 486; City of Austin v. Gress, 156 S. W. 536; Levinski v. Cooper, 142 S. W. 962. In this case the court, as shown by the bill of exceptions, three times compelled the attorney to desist from asking the jury certain questions. It is also shown that the court several times intervened and tried to restrain the attorney from making objectionable statements in his argument, with the result that a colloquy finally ensued between the court and said attorney, which further emphasized the objectionable statements.

We find a great diversity of opinion among judges in regard to the extent to which an examination of jurors may be conducted in testing their qualifications. There is no doubt that the right exists to ascertain whether any of the jurors own stock in or are employed by an. insurance company writ-' ing employes’ liability insurance in cases in which a party to the suit carries such insurance ; but this may ordinarily be done by questions in which the word “insurance” is not even mentioned. It may take more time, but courts will always grant the necessary time when they see that the object of the attorney is to get the information in a way such as will not carry any intimation that the other party is protected by indemnity insurance. The direct question whether any of the jurors are employed by or in any way interested in any employés’ liability insurance company insuring contractors against loss or injury in the process of their work may be amply sufficient to intimate that an insurance company is behind the contractor in the case. In cases of this character, it would be well for attorneys to examine each juror separately, and by interrogating him as to his occupation, past and present, ascertain whether he is or has been employed by a casualty insurance company, and by general questions ascertain in what companies or corporations he owns an interest. If it be desired to probe his acquaintance with employes of the indemnity insurance company, their names can ordinarily he ascertained and the jurors asked if they are acquainted with such persons. No rules can be laid down which will apply to every case, as the questions necessary to probe the bias or prejudices of jurors are dependent upon the facts which give rise to the belief that there may be a bias or prejudice; but, as attorneys know the importance of having a case tried solely upon its merits, they must exercise both caution and good faith to keep out prejudicial extraneous matters. Whether induced by thoughtlessness or by a willful desire to reap a benefit, when extraneous prejudicial matters of such a character as to make it probable that the verdict was influenced thereby are injected into a trial by a party or his attorney, the courts uniformly recognize that justice requires the verdict to be set aside. Appellee contends that under rule G2a these assignments would not call for a reversal; there being no injury shown. We fail to see how injury could actually be shown by such statements or even by the most prejudicial testimony, unless each juror was put upon the stand and examined to ascertain whether such matters entered into his verdict. Our courts have not gone to that extreme in dealing with erroneous proceedings, and still hold that a reversal is proper, when in their judgment an error was of such character that it probably caused or was a material element in causing the result arrived at.

Assignments 24 and 31 are overruled. We do not think either assignment shows reversible error, but at any rate No. 31 relates to an incident which will not occur upon another trial.

Many objections have been made to the consideration of assignments of error; but, as we believe the assignment complaining of the failure to submit the ease upon special issues to be well taken and properly briefed, we have considered all other questions which are likely to arise upon another trial.

The judgment is reversed, and the cause remanded.

On Motion for Rehearing.

The request for submission upon special issues stands upon a different footing from charges, and, even when it was unnecessary to except to the giving or refusal of charges, it was necessary to except to the failure to submit a case upon special issues. G., H. & S. A. Ry. Co. v. Cody, 92 Tex. 632, 51 S. W. 329.

Since the amendment of article 1316, made by Acts 1903, p. 55, c. 39, the court must give a written charge, unless it is expressly waived by the parties. The written charge may be a general charge, or it may be made up of special issues. If appellee’s contention be correct, that the court may dery a request to submit on special issues, unless it is accompanied with the issues in writing which the party wants submitted, it would follow logically that, unless such issues are correctly drawn, the court could refuse the request for that reason. If not, then any kind of a special issue in writing accompanying the request requires the court to submit on special issues, and, if not satisfied with the issue or issues so presented, he would have to frame appropriate issues. We cannot believe that the law places the burden upon the attorney to draw the charge for the court if he wants a case submitted upon special issues. Appellee contends that article 1984a (Vernon’s Sayles’ Statutes) should be construed in connection with article 1985, which provides that the failure to submit any issue shall not be deemed a ground for reversal, unless its submission has been requested in writing, and that, when the articles are construed together, the result follows that no reversal shall take place for failure to submit the case upon special issues, unless written issues accompany the request. The Supreme Court has left open the question whether article 1985 requires the issue to be drawn or merely requires the request to submit a certain issue to be in writing. Moore v. Pierson, 100 Tex. 117, 94 S. W. 1132. But if it be held that article 1985 places omitted issues upon the same footing as omissions from a general charge, and that the desired issues omitted by the court must be correctly drawn and presented, it does, not follow that a request going to the manner in which the court shall submit the case must be accompanied with written issues of some - kind to make it valid, or written issues correctly drawn.

We construe article 1984a as giving the party the right to have the case submitted upon special issues, and the court must draw his charge. If either party thinks necessary or proper issues have been omitted, he must proceed under article 1985 to have the omissions supplied..

We are still of the opinion that this case is not one which cannot be determined upon the submission of special issues, and we do not feel authorized to read into the proviso any language which would vest a discretion in the trial court to refuse to submit a case upon special issues which can be determined in that manner. The Legislature intended to change the law, and we must give effect to such intention.

We conclude that assignment No. 10 should be overruled, because the special charge upon which it is based was defective, which defect was not pointed out in appellee’s brief and overlooked by us.

Appellee’s motion for rehearing opens with a discussion of the fact that appellant has gone into bankruptcy—a fact not shown by the record, and.which should not be mentioned by appellee, as it can have no bearing upon the legal questions before us.

Appellant asks us to certify the questions in this case to the Supreme Court.- As a direct appeal is open to the Supreme Court by means of application for writ of error, we see no good reason for complying with the request. Magill v. Brown Bros., 20 Tex. Civ. App. 678, 50 S. W. 143, 642; Sullivan Sanford Lumber Co. v. Reeves, 125 S. W. 96.

The motion for rehearing is overruled, except as to our disposition of assignment of error No. 10.


source: Caselaw Access Project

license: Public Domain

text:
    ARA v. RUTLAND.
    (No. 5368.)

    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 6, 1915.
    Rehearing Denied Feb. 3, 1915.)
    1. Pleading (§ 228) — Petition— Sufficiency.
    As against a general exception, a petition must be tested by its allegations, and not by the evidence introduced thereunder.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 584-590; Dec. Dig. § 228.]
    2. Damages (§ 141) — Pleading.
    A petition, which states facts essential to a cause of action, is good without setting out a proper legal measure of damages recoverable under the facts alleged.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 406-408, 412, 414, 415; Dec. Dig. § 141.]
    3. Pleading (§ 228) — Petition — General Exception — “Peice.”
    An exception to a petition, which alleges that defendant excepts to the allegations in enumerated paragraphs of the petition, and that the same are insufficient in law because they fail to disclose the correct measure of plaintiff’s damages in case the facts alleged are true, is only a general exception within District and County Courts Rule 18 (142 S. W. xviii), and is properly overruled, where the petition demanding recovery for damages to a stock of shoes alleged that certain of the shoes were destroyed, and others damaged in their market value, and which described in detail the price per pair of the shoes rendered worthless and the extent of the damage of the shoes partially damaged; the word “price” meaning market value at the time of the loss.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 584-590; Dec. Dig. § 228.

    For other definitions, see Words and Phrases, First and Second Series, Price.]
    4. Appeal and Ekroe (§ 742) — Assignment op Error — Manner op Briefing.
    An assignment of error relating to formal matters, rulings on which are not shown to have injured the party complaining,' and which are such that it can be said that no injury was occasioned thereby, will not be considered when not briefed in accordance with the rules.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    5. Landlord and Tenant (§ 164) — Negligence op Landlord — Liability.
    A landlord repairing the roof of a building pursuant to complaints and requests of the tenant is liable for damages to the tenant’s goods caused by negligence in leaving the roof in a defective condition without notifying the tenant.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 630-637, 639, 641; Dec. Dig. § 164.]
    6. Landlord and Tenant (§ 169*) — Repairs —Negligence of Landlord — Evidence.
    Evidence held to justify a finding that a landlord repairing the roof of a building negli- . gently left the roof in a defective condition and was liable for damages to the tenant’s property caused by rain.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 644-646, 664^667, 681-684; Dec. Dig. § 169.]
    7. Damages (§ 1SS) — Injuries to Property —Evidence—Sufficiency.
    In an action for damages to a stock of shoes by water, the testimony of a witness fixing the value of a certain number of pairs of shoes which had been received, but were not on the shelves, and fixing the value of a certain number of pairs on the shelves, though without naming the place where the shoes were, but received without objection, fixed the value at that place.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. § 511; Dec. Dig. § 188.]
    8. Appeal and Error (§ 1033) — Harmless Error — Damages.
    A defendant in an action for damages to personalty may not complain of the court allowing less damages than the lowest estimate of the amount of damages.
    [Ed. Note. — For other cases, see Appeal and Error. Cent. Dig. §§ 4052-4062; Dec. Dig. § 1033.]
    9. Evidence (§ 533) — Expert Testimony-Damages.
    Where, in an action for damages to a stock of shoes by water, the market value before the injury of two lots of shoes was stated separately because plaintiff claimed that one lot was rendered worthless while the other lot was only partially injured, plaintiff to recover substantial damages was only required to show the value after the injury, which could be done by expert testimony as to the amount of depreciation caused by water.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2341; Dec. Dig. § 533.]
    10. Appeal and Error (§ 1010) — Findings— Conclusiveness.
    A finding has the effect of a verdict and cannot be set aside when sustained by evidence.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3979-3982, 4024; Dec. Dig. § 1010.]
    Appeal from District Court, Victoria County ; John M. Green, Judge.
    Action by J. W. Rutland against Charles Ara. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Proctor, Vandenberge, Crain & Mitchell, of Victoria, for appellant. Ben W. Fly, of Victoria, for appellee.

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

       Writ of error pending in Supreme Court.

   MOURSUND, J.

Appellee sued appellant for $4,970.06 damages alleged to have been suffered by appellee by reason of Injuries caused to a stock of shoes by rain, alleging substantially that he was engaged in the business of selling shoes at retail in part of a building leased by appellee and owned by appellant, situated in Victoria, Tex.; that about September 24, 1913, appellant, without notice to appellee, undertook to repair the roof of the building and negligently left the same open over night without notice to appellee; and that during the night a rain came on and .his stock of goods was damaged by water descending through the roof. Appellant answered that the damage caused appellee was due to the extraordinary and unusual rainfall and one which could not reasonably have been anticipated by him; that an ordinary rainfall would not have injured appellee; that the work on the roof was begun and carried on with all the care and prudence which could have been exercised by him and by skilled workmen. Further statements explanatory of the pleadings will be made in discussing the assignments of error relating thereto. The court rendered judgment in favor of appellee for $1,965.33. At appellant’s reguest, findings of fact and conclusions of law were filed.

By the first assignment of error, complaint is made because the court overruled appellant’s first special exception, which is a^ follows:

“Defendant excepts to the allegations in said second amended original petition contained in paragraphs Nos. 24, 25, 26, and 27 thereof, and says that the same are insufficient in law for the reason that they fail to disclose the true and correct measure of plaintiff’s damage herein in the event the facts alleged in his said petition are true.”

The first proposition is only an abstract proposition of law; the second is based upon the testimony and is without merit, as the petition must be tested by its allegations, and not by what evidence was introduced thereunder; the third is a contention that there is no allegation saVe that of the price per pair; the fourth, that the value per pair should not have been alleged, but what the shoes could have been promptly sold for in bulk or in convenient lots.

The exception is nothing more than a general exception. See rule 18 for district and county courts (142 S. W. xviii). It fails to point out in what respect the measure of damages as alleged is not the true and correct one. The objections to the petition presented under this assignment serve to show the inadequacy of the exception, as not one of them is hinted at therein. This court held, in the case of Railway v. Jenkins, 89 S. W. 1107, that it was not essential to the statement of a good cause of action that the petition should set out a proper legal measure of damages; that a statement of the facts essential to a cause of action was all that good pleading requires, and, when there is evidence sufficient to take the case to the jury, it is for the court to inform the jury of the measure of damages. An exception very similar to the one urged in this case was overruled, and it was held that the court did not err in so ruling. In this case it is alleged that certain of the shoes were destroyed in their market value and others were damaged in their market value. The shoes alleged to have been rendered wholly worthless were described in detail, the price per pair being given, and the aggregate price thereof. The shoes alleged to have been damaged were described in a like manner, and it was stated that they were damaged to the extent, of 50 per cent, of the value shown, placing the net loss thereon at $3,252.06. It is clear that by the word “price” the pleader meant value; and market value, at that. It is clear that in this case the allegations made were subject, at the most, only to a special exception pointing out the defects in form, and no such exception was made. The assignment is overruled.

The second and 'third assignments of error are submitted together. They complain of the overruling of special exceptions to paragraphs of the petition based upon the ground that such paragraphs contained more than one fact going to make up plaintiff’s cause of action. The statement under these assignments contains only a conclusion (which is denied in appellee’s brief), and references to the record. The pleadings objected to are not set out in the statement. While this court frequently considers assignments not briefed in accordance with the rules, we see no reason for doing so in the case of assignments relating simply to formal matters, the rulings upon which are not shown to have injured appellant, and which aré of such a nature that it can safely be said that no injury was occasioned. We decline to consider the assignments. City of San Antonio v. Routledge, 46 Tex. Civ. App. 196, 102 S. W. 767; Autrey v. Dinn, 138 S. W. 197; Carrico v. Stevenson, 135 S. W. 260.

The fourth assignment is based upon the sustaining of appellee’s special exception reading as follows:

“Plaintiff excepts to the allegations contained in the first subdivision of paragraph 20 of defendant’s first amended original answer, for the reason that the facts therein stated, to the effect that the repairs attempted to be made by defendant to the roof of the building occupied by plaintiff were made because of frequent complaints to defendant by plaintiff herein, and requests of the plaintiff to repair the same, are immaterial and irrelevant and constitutes no defense to plaintiff’s cause of action.”

The plea excepted to did not contain any statement to the effect that appellant proceeded with the work pursuant to any understanding with appellee or after any notice given him, but merely that the repairs were made because of frequent complaints by ap-pellee and requests by him to repair the roof. Such requests and complaints would not justify appellant’s negligence in leaving the roof in a defective condition without notifying appellee, and the court did not err in sustaining the exception.

By the fifth assignment the contention is made that the evidence fails to show negligence, and therefore the judgment is contrary to the law and the evidence.

The court, at appellant’s request, filed conclusions of fact and law, and, upon a further request for specific findings on certain points, filed additional conclusions. The conclusions of fact aggregate 30 paragraphs, and, in order not to unduly extend this opinion, only the substance of those which may be said to be attacked by the assignments of error will be stated in this opinion. On the issue of negligence, the court found that defendant’s workmen, on September 24, 1913, tore oft a portion of the roof of a building occupied by plaintiff as tenant of defendant, and, not completing the new roof in one day, left open that portion oyer plaintiff’s shoe department, which portion had theretofore been protected by an adequate roof; that neither defendant nor his workmen, nor any one else, notified plaintiff that the roof had been left open, and plaintiff did not know of such fact; that, about the time defendant’s workmen were leaving their work, rain clouds were hovering near, and there were indications that would put an ordinarily prudent person on notice that a rainstorm might be expected; that during the ensuing night, when no one was in plaintiff’s store, a heavy rain fell, and the water poured through the roof where it had been left open, damaging plaintiff’s shoes; that defendant was negligent in leaving the roof open in view of the weather indications, also in leaving the roof open without notifying plaintiff, also in not notifying plaintiff of such fact after the rain started to fall. The court also found that, had notice been given plaintiff, he would have moved his shoes into the Gillespie building, also used by him, and adjoining the Ara building, with a doorway in the wall between them; that the rainfall for 48 hours was 7.4 inches, which was unusually heavy, but that the damage to the goods would have followed even though the rainfall had been ordinary in its nature, and that, the. portion of the roof over the shoe department being lower than the balance, all the water falling on the roof would and did go through the openings left in the roof; that on September 17, 1913, a rain of 4.75 inches had fallen on said roof within less than 12 hours, but said roof over the shoe department did not leak; that, in view of such previous rainfall, the rain which fell upon the open roof could have been reasonably anticipated by a man of ordinary prudence.

The assignment of error is of a very general nature, probably too general to require consideration, and- is submitted as a proposition without any proposition thereunder which might serve to make clear wherein the evidence fails to show negligence,; but, as we understand appellant’s contentions, they are as follows: (1) That the roof was not left “open,” and precautions had been taken to guard against the consequences of an ordinary rain. (2) That the rain which fell was unprecedented and could not have been anticipated. Bauer testified that the seam had been left open along the center of the roof, which was the lowest portion thereof, and the water went through at that place; that there was a sink in the roof in which the water would stand four or five inches deep before it would run out of a certain spout intended to carry off the water, and the seam was left open right in the sink. He testified, also, that the water did not have to stand over the top of the seam in order to get through the roof; that it went in the crack between the new and the old tin. It is evident that all water falling on the roof would go through the opening except that which would run off after the water accumulated so fast that it rose high enough to run out of the spout. The evidence justifies a finding that an ordinary rainfall would have caused great damage. There is no evidence as to what proportion of the 7.4- inches fell within the first 12 hours, and the damage appears to have been practically all accomplished within that time, as all kinds of precautions and expedients were resorted to to keep down damages as soon as appellee and his employes arrived early the next morning. We overrule the assignment of error and adopt the trial court’s conclusions of fact above summarized as our conclusions upon the issue of negligence.

The sixth and seventh assignments both attack the sufficiency of the evidence to support the judgment and will be considered together. The sixth, briefly stated, is a contention that there was no testimony showing the market value of the damaged shoes at Victoria, Tex., immediately before and immediately after the damage occurred. The seventh is a contention that the evidence as to the damages suffered is too uncertain. The court’s conclusions of fact relating to the amount 'of damages suffered by plaintiff read as follows:

“The court finds as a fact that the shoes alleged in plaintiff’s petition to be wholly damaged were in fact damaged to the extent of 33% per cent, of their market value; and that the shoes, alleged in plaintiff’s petition to have been damaged to the extent of 50 per cent, of their value, were in fact damaged to the extent of 25 per cent, of their market value; and that the total amount of plaintiff’s damage was $1,965.33.
“The court finds that, in so far as the shoes alleged to have been rendered wholly worthless are concerned, their market value at Victoria at the time of the injuries complained of, but without such injuries, was $1,018, which is based upon cost and carriage; and, in so far as the shoes alleged to have been damaged 50 per cent, of their value are concerned, that their market value at Victoria at the time of the injuries complained of, but without such injuries, was $6,504, which is based upon cost and carriage.”

The witness Karcher testified to the market value of the shoes just prior to the injury thereto, fixing the value of 218 pairs which had just been received and were not in the shelves at $1,018, and the value of 2,-432 pairs in the shelves at $6,504.13. He did not say at Victoria, Tex.; but, the shoes being at Victoria, the natural inference is that he meant the value at that place. No objection was made to the testimony on the ground that the witness did not specifically state that he meant the value at Victoria, Tex., and we hold that the failure to make such statement does not authorize a reversal of this case.

The testimony as to value immediately after the injury occurred is as follows: Both Karcher and Rutland testified that the 2,432 pairs were damaged to the extent of 50 per cent, of their market value. This testimony was sufficient to establish the damage to said shoes, and appellant cannot complain because the court arbitrarily reduced this item of damage to 25 per cent., instead of allowing 50 per cent. Karcher and Rutland testified the 208 pairs were worthless, but Karcher also testified they sold some of these shoes, and such testimony is uncontradicted, and, there being no testimony as to amount received for those sold, it seems that the testimony of these two persons is not sufficiently certain to furnish a basis upon which it could be found that said 208 pairs of shoes were damaged 33% per cent, of their market value. However, we find that the witness Weber, who was fully qualified to testify as an expert on shoe values, testified that Rutland showed him a lot of shoes which were wet; that they had water marks on the heels and shanks and inside the facings; that he found between 250 and 300 pairs which were damaged, and about 50 or 60 pairs claimed by Rut-land to be damaged which the witness considered as not damaged; that the 250 to 300 pairs which were damaged were not worth 50 cents on the dollar, in other words, not worth 50 per cent, of the value they would have had if no injury had been inflicted thereon. These shoes were brought outside the building, and 116 pairs thereof were also inspected by the witness Kubecke, another experienced shoe man, who testified that those he inspected had been wet and all except a few pairs were worthless. He found Weber there when he arrived, and it got dark before he was through inspecting the shoes which he was called upon to inspect and which he estimated at from 200 to 300 pairs. Rutland testified that the list of shoes which they claimed were worthless were in boxes right under the leak, and that the shoes became wet, while those in the shelves were not so exposed, and hence only damaged by water splashing on them and from the effect of the dampness. The testimony is sufficient to show that the 20S pairs ,of wet shoes were in the lot of 250 to 300 which Weber testified were not worth 50 cents on the dollar, and, as they were damaged more than the others, it is clear that under his testimony it could be found that their value did not exceed 50 per cent, of the value they would have had but for the injury. The court allowed only 33% per cent., and appellant cannot complain because the court arbitrarily allowed less than the lowest estimate. It appears from Weber’s testimony that appellant had a man examining the shoes for him at the same time Weber made his examination, but this man did not testify. Appellant introduced no testimony as to the value, and made no objection to the proof by appellee of the market value of the shoes and the depreciation in value. While lists were introduced in evidence which stated the value of the various kinds of shoes, probably made from invoices, yet the testimony related to the two lots of shoes described in two lists, and the market value of the-two lots was stated separately, because it was contended that one was rendered entirely worthless while the other was damaged 50 per cent. No witness testified that he was undertaking to give the value at which the goods could be sold at retail had they not been injured; on the contrary, they stated the value in bulk of each of the two lots of shoes. Railway v. Cadenhead, 164 S. W. 395. Incidentally it appears from the lists what items of value made up the buik, but surely the lists could not be construed as showing that those items would only obtain after “time, expense, and profit” had intervened. The value of the two lots had no injury occurred being established, it only remained to show the value after the injury which was done by expert testimony as to the amount of depreciation caused by the injury. See Railway v. Armstrong, 166 S. W. 368; Railway v. Peacock, 128 S. W. 463; Fire Ex. Co. v. Beal-Doyle Co., 110 Ark. 49, 160 S. W. 889.

The conclusions of fact of the trial court have the same standing as the verdict of a jury, and cannot be set aside when a greater amount of damages would be warranted under the lowest estimate testified to.

The assignments are overruled, and the judgment affirmed.


text:
    TERRELL, ATKINS & HARVIN v. PROCTOR et al.
    (No. 5366.)
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 20, 1915.)
    1. Sales (§ 391) — Breach—Recovery oe Deposit.
    Where plaintiff deposited $5,000 as a .penalty to secure performance of their contract to purchase certain cattle from defendants^ facts showing that defendants suffered no injury from plaintiff’s alleged breach of their contract were sufficient to entitle plaintiff to recover the deposit. •
    [Ed. Note. — -For other cases, see Sales, Cent. Dig. §§ 1110-1127; Dec. Dig. § 391.]
    2. Sales (§ 89) — Modification—Consideration — Necessity.
    Parol modification of a pre-existing contract for the sale of cattle as to the manner in which the seller should accept payment was unenforceable, unless supported by a new consideration.
    [Ed. Note. — For other eases, see Sales, Cent. Dig. §§ 251, 252, 259; Dee. Dig. § 89.]
    3. Sales (§ 89)— Contract — Modification— Payment.
    A seller’s agreement to accept payment for cattle in a manner different from that prescribed by the contract was sustained by a sufficient consideration, consisting of the buyer’s subsequent agreement to take the loss of all cattle which might die or be injured in the pens during the night before delivery.
    [Ed. Note. — Eor other cases, see Sales, Cent. Dig. §§ 251, 252, 259; Dee. Dig. § 89.]
    4. Tender (§ 16) — Waiver.
    Payment need not be tendered if the person required to make the tender is informed by the person to receive it that it will not be accepted, provided the former proves ability to make payment, as required by the contract.
    TEd. Note. — For other cases, see Tender, Cent. Dig. §§ 47-53; Dec. Dig. § 16.]
    5. Appeal and Error (§ 930) — Judgment— Invalidity — Reversal.
    Whore a special verdict is insufficient in itself to support the judgment, it will be reversed, unless there is evidence in the statement of facts which sustains the necessary findings to complete the verdict.
    [Ed. Note. — Eor other, cases, see Appeal and Error, Cent. Dig. §§ 3755-3761; Dec. Dig. § 930.]
    6. Sales (§ 418) — Breach— Special Damages —Notice.
    Where plaintiffs, prior to an alleged modification of a contract for the sale of certain cattle, notified defendants of their intention to ship the cattle to A., such information did not put defendants on notice that the cattle were to be sold at once in the open market at A., so as to entitle plaintiffs to recover, as special damages, the difference between the contract price and the market value of the cattle at A., less freight, under the rule that, to entitle the buyer to recover such damages, the seller must know that the goods are bought for resale in a particular market, or are to be supplied in pursuance of a particular contract.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1174-1201; Dec. Dig. § 418.]
    7. Sales (§ 418) — Breach op Contract — Special Damage.
    Where, in an action for breach of a contract to sell certain cattle, there was evidence as to the value of the cattle at the place of delivery, and the jury found their reasonable value there, an allowance of special damage, based on the theory of the difference in value between the contract price and tbe value of the cattle at the destination to which they were to be shipped, less the freight, was unsustainable.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1174-1201; Dee. Dig. § 418.]
    8. Evidence (§ 142) — 'Value—Other Sales.
    The price paid by a buyer on resale of certain cattle bought from defendants was immaterial in an action for breach of the seller’s contract to deliver.
    [Ed. Note.- — Eor other eases, see Evidence, Cent. Dig. §§ 416-423; Dec. Dig. § 142.].
    9. Sales (§ 418) — Contract — Seller’s B RE ACII — D AM AGES.
    In an action for a seller’s breach of a contract to sell certain cattle, the amount the cattle were damaged by being penned and driven to the place of delivery was immaterial.
    [Ed. Note. — For other eases, see Sales, Cent. Dig. §§ 1174-1201; Dee. Dig. § 418.]
    10. Sales (§ 418) — Contract— Seller’s Breach — Market Value.
    In an action for a seller’s breach of contract to sell cattle, the jury are at liberty to fix the reasonable value of the cattle at their market value at the nearest market, less freight.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1174-1201; Dec. Dig. § 418.]
    Appeal from District Court, Bexar County; W. E. Ezell, Judge.
    Action by T. E. Proctor and another against Terrell, Atkins & Harvin. Judgment for plaintiffs, and defendants appeal.
    Reformed and affirmed.
    Houston, Boyle & Storey, of San Antonio, and J. R. Sanford, of Eagle Pass, for appellants. C. C. Clamp and C. A. Davies, both of San Antonio, for appellees.

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

   MOURSUND, J.

Appellees T. E. Proctor and C. E. Canterbury, plaintiffs below, sued appellants, alleging; That about May 20, 1913, plaintiffs entered into a contract whereby they agreed to purchase from defendants all of a certain stock of cattle estimated at 2,000 head, more or less, ranging in tbe Frank Payne pasture near Spofford, and to pay $20 in gold per head, f. o. b. cars Spof-ford, Tex., all calves born since January 1, 1913, to be thrown in free of cost; that by the terms of the contract the cattle were to be delivered in three separate bunches, the first to be delivered within ten 'days from date of contract, the -other two to be made upon securing reasonable notice from plaintiffs, but all were to be delivered and received on or before August 1, 1913; that prior to said date plaintiffs received and paid for approximately 1,015 head of cattle and 362 head of cattle, and that defendant, in making such deliveries, cut out and delivered the smallest and poorest of the cattle, leaving about 1,025 head which were the best cattle; that plaintiffs had a train of cars ready for the receipt of said cattle, and they had rounded up and were ready for delivery, and had procured the Frost National Bank of San Antonio, Tex., to certify a payment of $15,000 upon said cattle to the Border National Bank of Eagle Pass, Tex., and upon the evening of August 1, 1913, the defendants agreed to accept the certification by the Frost National Bank in payment of the balance due on said last delivery of cattle and to load tbe same on July 2, 1913; that plaintiffs had procured the deposit of said sum in the said Frost Bank and said bank to certify tbe same to said Border National Bank for payment to said defendants, with bill of lading attached; that, at the time of making the contract, plaintiffs had deposited with defendants $5,000 as a guaranty of the fulfillment of the contract on the part of plaintiffs, which was to be deducted from amount to be paid for the last bunch of cattle, but defendants refused to load the cattle and to accept the certified payment from the Frost Bank, also refused to return said $5,000, and refused to deliver said cattle as agreed in said contract and as agreed on the evening of August 1, 1913. Plaintiffs alleged their damages at $12 per head on 200 cows with calves, $4.50 per head on 200 dry cows, and $11.50 per head on 500 steers, basing same on tbe ruar-ket value at San Antonio, Tex., less expense of transportation, alleging that said market was the nearest to Spofford, and that defendants knew of plaintiffs’ intention to ship same to San Antonio. Plaintiffs prayed for judgment for their damages, so set out, in the aggregate amount of $9,050, besides the $5,000 deposited with defendants. The contract attached to the petition as an exhibit contains the provisions pleaded, and in addition provided that plaintiffs were to pay for the cattle, as they were received, with check on any of the banks in Eagle Pass, Tex.

Defendants filed a general demurrer, and in answer to the petition admitted the execution of the contract and that deliveries of cattle were to be made thereunder, as set out in the petition, but denied that at divers times prior to August 1, 1913, they delivered 1,015 head and 362 head to plaintiffs, and specially denied that they cut and delivered the smallest and poorest cattle, and that there remained about 1,025 head which included the best cattle, and averred that they delivered only about 1,225 head of cattle prior to said August 1st, which were of the average run of the stock contracted to be sold, and were received by plaintiffs without protest. Defendants further alleged that the last round-up of cattle consisted of about 950 head. They denied that the Frost National Bank certified the payment of $15,000 upon the cattle so rounded up to the Border National Bank of Eagle Pass, Tex., or of any other sum at said bank, and averred the fact to be that said Frost Bank wired defendants that they would pay Otto Limburger’s draft on Schweers-Kern Live Stock Commission Company for $15,000 in payment of 1,000 cattle, calves not counted, bill of lading attached, which telegram had no bearing on the contract and in no wise complied with the terms and conditions thereof, and was therefore of no concern to defendants. They also denied that they or either of them ever agreed to accept the certification of the said Frost Bank, as alleged in said petition, in payment for said cattle, or agreed to load the same on August 2, 1913, on such certification, or agreed to accept payment therefor in any manner, except that provided in the contract. Defendants also pleaded so as to put in issue the other allegations of plaintiffs’ petition, except that relating to the deposit of $5,000 with them by plaintiffs, but pleaded that said sum was deposited as a forfeit and as liquidated damages to be retained by defendants if plaintiffs failed to carry out their contract. By way of cross-action defendants pleaded that they strictly complied with all the terms of said contract, and had the balance of the cattle, approximating 1,000 head, penned and ready for delivery, but plaintiffs failed and refused to accept same, whereby defendants were damaged in the sum of $5,923, the items whereof were specifically set out. Their prayer was for judgment for said amount, and that they be adjudged entitled to retain the $5,000 deposited with them by plaintiffs.

Plaintiffs demurred to the answer and cross-action, and pleaded that the contract called for delivery of the cattle f. o. b. cars Spofford, and defendants demanded payment or assurance of payment before delivering the cattle as thus provided; that in compliance with said demand, which constituted a breach of the terms of the contract, plaintiffs furnished defendants on August 1, 1913, a telegram from said Frost Bank that it would honor a draft of Otto Limburger (who was present and representing and assisting plaintiffs) upon the Schweers-Kern Commission Company for $15,000, which, with the $5,000 deposit, would have paid for the 1,000 head of cattle at $20 per head and more than paid for the 950 head which defendants alleged were ready for delivery; that defendants agreed to accept payment by said method and to deliver the cattle on August 2d; that said arrangement was a substantial compliance with the contract, as the offer of the Frost Bank was cash at the Border National Bank in Eagle Pass, and further that defendants precluded plaintiffs from making any other or further tender of said money under the contract, and are es-topped, by reason of their agreement and action, from alleging a failure to pay or offer to pay for the cattle in accordance with the strict letter of said contract, and therefore are liable for the sum sued for.' Plaintiffs denied that the contract contemplated, or that the parties contemplated, that the $5,000 was deposited as liquidated damages. They also denied the allegations of defendants’ cross-action, and averred that defendants breached the contract in the first instance by failing to load and count the cattle into the cars.

Defendants, by supplemental answer, denied the allegations made in plaintiffs’ supplemental petition, and alleged that the contract simply called for delivery of the cattle free on. ears, but it was the agreement and custom of the parties that plaintiffs were to arrange so they could give a draft on some bank in Eagle Pass, and defendants • did not demand that plaintiffs draw a check for any fixed sum, but simply to know whether plaintiffs were in a condition to pay for the cattle when put in the cars; that at each former delivery plaintiffs caused much delay in placing their money in banks at Eagle Pass, and therefore, to save damage to said cattle by holding them in the cars, defendants permitted them to remain in the pens ready to be placed in the cars when plaintiffs could assure defendants that they were in a condition to carry out the contract; that the telegram, purporting to be from Frost, related to different cattle than those covered in said contract, and cattle which defendants did not have; that it did not comply with the contract because it added that the calves were not to be counted, whereas under the contract all calves bom prior to January 1, 1913, were to be counted, of which kind defendants had about 100 head, and with them defendants only had 964 head to be delivered under the contract; that, when defendants were shown a copy of the telegram, they notified plaintiffs that it was not in accordance with their agreement; that they proposed to sell their cattle at Spofford and not in San Antonio; that, if they could procure any bank in Eagle Pass to' cash the draft or to cash a check for the balance of the cattle to be delivered, defendants would load the cattle; that plaintiffs attempted to arrange such matter, but were unable to do so, and on August 2d informed defendants they had done all they could and could do no more. Whereupon defendants placed the cattle in their pasture.

Defendants, by trial amendment, amplified their former pleadings, reiterated all items sued for in their cross-action, except one, and in addition sued for $500 for pasturage and care of the cattle for 30 days intervening before they could be sold. Plaintiffs also filed a trial amendment, consisting of various special exceptions, and a denial of the allegations contained in defendants’ trial amendment.

In answer to special issues submitted, the jury found: That defendants agreed to accept payment for the cattle from Mr. Limburger, as proposed in the telegram from Frost National Bank to Terrell & Harvin on August 1, 1913, introduced in evidence, and to load out the cattle the next day; that there was no market value at Spofford on August 2, 1913; that the reasonable value per head of the cattle at Spofford on August 2, 1913, in their then condition, was $20; that there was a market value for the cattle in San Antonio on August 3, 1913, in the condition they would have been in upon arrival there, if shipped there; that such value was $26 per head; that defendants received $21 per head when they sold the cattle to Olamp & West on August 22,1913; that the reasonable value of the pasturage and care of said cattle from August 2, 1913, to- August 22, 1913, was 17y¡¡ cents per head.

The court rendered judgment in favor of plaintiffs for the $5,000 deposited by them with defendants, and for the further sum of $5,061 damages.

It is apparent that the verdict furnishes no sufficient basis for that part of the judgment awarding plaintiffs $5,061 in addition to the $5,000 deposited by plaintiffs. We are compelled to resort to the statement of facts to ascertain whether there is evidence to support findings in favor of plaintiffs upon all issues not submitted. Our conclusions of fact upon matters deemed material are as follows:

(1)In one portion of the contract the place of delivery was stated as Spofford, Tex., while in another it was stated as Eagle Pass, Tex., but all parties to the suit treated the contract as requiring delivery at Spofford.

(2) The defendants on August 1,1913, were ready, able, and willing to deliver at Spof-ford, Tex., 964 head of cattle called for in the contract to be paid for at $20 per head.

(3) A discussion between the parties disclosed that plaintiffs were unable to pay for the cattle, as provided in the contract, and that they were relying upon one Otto Limburger and the SchweersrKern Live Stock Commission Company to finance the deal for them. The fact was developed that Limburger, who was upon the ground, and as plaintiffs’ representative took charge, in a large measure, of the negotiations, was unprepared to pay, as provided in the contract.

(4) About the middle of the afternoon Limburger proposed that he would draw a draft on the Schweers-Kern Commission Company in San Antonio, and procure the Frost National Bank of San Antonio to O. K. it and have the Eagle Pass Bank pay it. Plaintiff Proctor testified this proposition was accepted by defendants.

(5) Limburger did not comply with his proposition so made, but about 8 o’clock that night a telegram was received by defendants from Frost National Bank reading as follows:

“We have wired Border National Bank that we will pay Otto Limburger draft on Schweers-Kern Live Stock Commission Co. fifteen thousand bill of lading attached for one thousand head of cattle, calves not counted.”

(6) In deference to the verdict, the evidence being conflicting, we find that, shortly after receiving this telegram, defendants unconditionally agreed to accept the payment by the method therein specified and to load the cattle the next morning; it being impracticable to load that night because a few of plaintiff Proctor’s cattle were in the pens with defendants’ cattle and could not be separated therefrom on account of darkness.

(7) The agreement by the bank to pay as per telegram was not an agreement by the bank to carry out the proposition as made by Limburger earlier in the day, because it imposed for the first time the condition that there must be attached to the draft a bill of lading for 1,000 head of cattle, calves not counted.

(8) Shortly after agreeing to accept payment as proposed in the telegram, defendants exacted of plaintiffs an agreement that, if any cattle died during the night, they would be counted and plaintiffs would lose the value thereof.

(9) Within an hour and a half after receipt of the telegram, defendants informed plaintiffs they could not accept draft with bill of lading attached; that they had communicated with the Eagle Pass bank, and had beeD told that such draft would not be satisfactory to said bank. Thereupon Limburger agreed to procure the elimination of the provision requiring that bill of lading be attached to draft, and that night and the next morning sought to telephone Schweers and get the change made.

(10) The next morning, the evidence as to time being conflicting, defendants drove their cattle back to their pasture. Limburger testified that defendants declined to wait further, although he assured them he would do everything in his power to get Schweers and the Erost Bank to eliminate the bill of lading feature. According to defendants’ testimony, limburger told them he could do nothing further. Limburger testified that the commission company refused to eliminate the bill of lading provision, but it seems his contention is that such refusal occurred after the cattle had been turned out.

(11) The evidence does not show that plaintiffs were able to pay defendants on August 2, 1913, by draft with bill of lading attached for 1,000 head of cattle, calves not counted. Defendants had only 964 head, including 50 or 60 calves born prior to Jan. 1, 1913, and therefore to be counted under the contract, but which were not to be counted in providing a bill of lading according to telegram, so far ns is shown by the testimony. It is true the evidence discloses that plaintiff Proctor had a few head of cattle in the pens, but the number is not stated.

(12) On August 1, 1913, plaintiff Proctor tol,d defendants that he intended to ship the cattle to San Antonio. There is no evidence that he told them what he intended to do with the cattle when they got to San Antonio.

(13) The freight on the cattle from Spof-ford to San Antonio would not have exceeded 75 cents per head.

Ouz- conclusions of law are as follows:

(1) The court did not err in overruling the general demurrer to plaintiffs’ petition. The petition states a cause of action for the recovery of the $5,000 deposited, as it is shown to be a penalty, and facts are alleged which, if true, show that defendants suffered no injury, and therefore were not authorized to hold the deposit. Assignments of error Nos. 1 and 15 are overruled.

(2) The court erred in submitting special issue No. 1, because no consideration was pleaded for the agreement on the part of defendants to accept payment otherwise than as specified in the contract In fact, the agreement to accept draft payable only on condition that bill of lading was attached, as stipulated in the telegram, was never specifically pleaded, as will be seen by examining our statement of the pleadings. Plaintiffs, in their supplemental petition, pleaded that, by reason of the agreement by defendants to accept payment as therein pleaded, they (plaintiffs) were prevented from making payment as provided in the original contract, but there is no evidence to sustain such plea. We conclude that there is no merit in .appellees’ contention that the -modification would be binding without any consideration therefor. If so, no reason exists why Limburger’s agreement to eliminate bill of lading provision did not supersede the first modification. In some states the courts have held that the consideration existing in an original executory contract is considered as imported into any new parol modification, and no new consideration need be shown, but we do not understand our courts to so hold. Whitsett v. Carney, 124 S. W. 443; Walker v. Tom-linson, 44 Tex. Civ. App. 446, 98 S. W. 906; Mayfield v. Cottfin, 21 Tex. 1; Hogan v. Crawford, 31 Tex. 633; Bonzer v. Garrett, 162 S. W. 936; Consumers’ Fertilizer Co. v. Badt & Co., 157 S. W. 226; Porter v. Met-calf, 84 Tex. 472, 19 S. W. 696.

In this case plaintiffs were free to pay at any time as pi’ovided in the contract, and the agreement by defendants to accept payment in another manner did not even involve the relinquishing by plaintiffs of their right to pay in the method stipulated in the contract. The agreement to accept payment in accordance with the telegram was not supported by any consideration at the time it was made, but ^hereafter plaintiffs agreed to take the loss of all cattle which might die or be injured in the pens that night; and we think that such agreement constituted a valid consideration for defendants’ agreement to accept payment as proposed in the telegram, but, there being no consideration pleaded, the assignments of error Nos. 3, 4, and 5 are sustained.

(3) Plaintiffs were not required to tender payment, if informed by defendants that it would not be accepted, but nevertheless they must allege and- prove that they were able to make payment as required by the contract. Brown v. Binz, 50 S. W. 484; Railway v. Dennison, 22 Tex. Civ. App. 89, 58 S. W. 834; Cyc. vol. 35, pp. 627, 628. In this case the evidence fails to show that plaintiffs were able to pay on August 2, 1913, by draft with bill of lading attached for 1,000 head of cattle, calves not counted, as is shown by our ninth conclusion of fact.

(4) The error pointed out in the foregoing conclusion was not assigned, but, as the verdict is not sufficient in itself to support the judgment, such judgment is fundamentally erroneous and must be reversed, unless there is evidence in the statement of facts which sustains the necessary findings to complete the verdict. Armstrong v. Elliott, 20 Tex. Civ. App. 41, 48 S. W. 605, 49 S. W. 635; Loan & Trust Co. v. Fuller, 26 Tex. Civ. App. 320, 63 S. W. 552; Yzaguirre v. Garcia, 172 S. W. 139, recently decided by this court.

(5) The court, in allowing plaintiffs $5,061 in addition to the $5,000 deposit, estimated the damages allowing the difference between the contract price and the market value at San Antonio, less freight, although there was a finding of the reasonable value of said cattle at the place of delivery., As the court allowed damages based upon the market value at a place other than the one of delivery, special circumstances must have'existed, and defendants must have had notice or knowledge thereof, in order for the court to be justified in allowing such damages. No such issues were submitted to the jury, so we must go to the statement of facts to see if there is any evidence to support the allowance of special damages. It is admitted that defendants had neither notice or knowledge, at the time the contract was made, of special circumstances justifying special damages, but appellant contends that notice given prior to the breach is sufficient and relies upon the ease of Bourland v. Choctaw R. R. Co., 90 Tex. 407, 90 S. W. 483, 3. L. R. A. (N. S.) 1111, 122 Am. St. Rep. 647, as authority for the proposition that the general rule announced in M., K. & T. Ry. Go. v. Belcher, 89 Tex. 42S, 35 S. W. 6, is not applicable in all cases. True, the Bourland Case permits the recovery of special damages from a carrier for negligence in failing to deliver goods after their arrival, although notice of the special circumstances was not given until after arrival of the goods. For a discussion of such case and the Belcher Case, see note to 3 L. R. A. (N. S.) 1111. The instant case is not one where negligence is relied upon, but a case where damages are sought to. be recovered for a breach of pan ordinary contract between individuals. There are in certain relations, duties imposed by law, a failure to perform which is regarded as a tort, though the relations themselves may be formed by contract covering the same ground. Cooley on Torts (3d Ed.) p. 159. Carriers, telegraph companies, and bailees of property are mentioned as illustrations. The rule so stated has often been recognized in this state, and we see nothing illogical in giving effect in such ease to notice of special circumstances, if made known prior to the commission of the tort. But the rules applicable to these exceptional cases must not be applied to cases such as this, where the only duties are those imposed by the contract. Therefore it is clear that unless a binding modification of the contract was made, and same is given the effect of making a new contract after defendants had notice or knowledge of the special circumstances relied upon, the same cannot be considered in measuring the damages. The evidence shows that Proctor told defendants he intended to ship the cattle to San Antonio, and that such statement was made prior to the agreement to accept payment as per telegram. But such information, especially in view of the class of cattle being shipped and their condition, did not put defendants on notice that such cattle were to be sold in the open market at San Antonio on August 3, 1913, or at any other time. Specialty Furniture Co. v. Kingsbury, 60 S. W. 1030; Daugherty v. Herndon, 27 Tex. Civ. App. 175, 65 S. W. 891. The notice or knowledge should apprise the seller of the fact that the goods are bought for resale in a particular market or are to be supplied in pursuance of a particular contract. Sutherland on Damages, § 52; Kirby Lumber Co. v. Cummings, 57 Tex. Civ. App. 291, 122 S. W. ■273; Hamilton v. Schumacher, 15 S. W. 715; Anderson Electric Co. v. Water Co., 27 S. W. 504; Harris v. Bank, 45 S. W. 311; Globe Refining Co. v. Landa, 190 U. S. 540, 23 Sup. Ct. 754, 47 L. Ed. 1171. The facts and circumstances shown in this case are not sufficient to charge defendants with notice that the cattle were to be resold by plaintiffs in the market at San Antonio.

Terrell testified:

“Mr. Limburger told me he would give me a check on some one or he was to get it from Sehweers-Kern Commission Company; he bought the cattle; and he was to draw through them; but I did not talk to him about the Frost Bank certifying to it.”

Limburger testified:

“The market value of those cattle down on the ranch there was what I paid for them, $22.-50 per head.”

The testimony is much stronger to indicate that defendants were informed of a resale than that plaintiffs intended to sell the cattle on the San Antonio market.

Again Armstrong testified he bought the cattle from Proctor before August 1st, and told I-Iarvin of such purchase. He testified further:

“Proctor came and we made another deal. He went in with us on the deal for the cattle, and we arranged shipment.”

It seems that this is a suit by plaintiffs to recover their profits and also the profits that would have been made by purchasers from them. But, taking it for granted that plaintiffs would be the owners when the. cattle reached San Antonio, defendants were left to surmise whether the cattle were to be sold upon the market at once, or, being thin, whether they were to be fed and then sold, or part sold and part used for breeding purposes, or whether they were to be shipped to another market.

Appellees seek to defend the allowance of special damages upon the theory that, there being no market value at Spofford, the market value at the destination, less the freight, should furnish the basis for estimating the damages, and that for such reason the court did not err. If there had been no finding of the value at Spofford, we might conclude that the court found the value at Spofford by deducting freight from the market value at San Antonio, but the jury passed upon the question and found the reasonable value at Spofford to be §20 per head. The rule referred to is not one permitting the recovery of market value at other than the place of delivery, but one which, when there is no market value at place of delivery, permits evidence of the market value at the nearest market to be shown to be considered with freight charges, in determining the actual or intrinsic value at place of delivery. Sutherland on Damages (2d Ed.) § 653. We may say in this connection that other evidence, besides that of Dimburger, above quoted, was before the jury on the question of value at Spofford. Clamp testified he saw the cattle between August 8th and 15th, and would have paid something like $16 or $17 per head for them in their then condition. Kennedy testified the market value of the cattle at Spofford was $18 per head. Terrell estimated the value at $16 per head. The jury, after considering all the testimony, placed the value at $20, which finding could not be disregarded by the trial court. We conclude that upon no theory can the judgment be sustained as to the $5,061, and sustain all assignments of error complaining of that portion of the judgment.

(6) The issue regarding the price paid by Clamp & West to appellants was an immaterial one, and it is unnecessary to determine whether the finding of the jury is supported by evidence. The ninth assignment of error is overruled.

(7) The court did not err in holding that the amount the cattle were damaged by being penned and driven to the place of delivery was immaterial. The sixth and sixteenth assignments are overruled.

(8) The finding that the reasonable value of the cattle at Spofford was $20 per head is supported by evidence, because the jury was at liberty to fix same by using the market value at San Antonio, the nearest market, less freight. The eighth assignment is overruled.

As the court erred In allowing special damages, and the value of the cattle at Spofford was the same as the contract price, the judgment will be reformed by eliminating the $5,061 item, but will be affirmed as to the $5,-000 deposit.


author: BROWN, C. J.

text:
    DIAMOND v. DUNCAN.
    (No. 2324.)
    (Supreme Court of Texas.
    Jan. 27, 1915.)
    1. Appeal and 'Error (§ 1002) — Review— Presumption — Conflicting Evidence.
    On review after a verdict on conflicting evidence, the Supreme Court will assume that the facts were as found by the verdict.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dec. Dig. § 1002.]
    2. Insurance (§ 103) — Agent op Insured— Failure to Reinsure — Liability.
    Where an insurance broker undertook to keep properties insured and, after expiration of the policies taken out by him, neglected _ to secure new policies for a period during which the property was destroyed by fire, he was liable for the loss.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 130; Dec. Dig. § 103.]
    Error to Court of Civil Appeals of Fifth Supreme Judicial District.
    Action by Eugene Duncan against W. L. Diamond. A judgment for plaintiff was affirmed by the Court of Civil Appeals (138 S. W. 429), and defendant brings error.
    Affirmed.
    Alex Weisberg and Spence, Knight, Baker & Harris, all of Dallas, for plaintiff in error. Harry P. Lawther, of Dallas, for defendant in error.

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

   BROWN, C. J.

From the opinion and the briefs and argument of parties, we make the following statement of facts as they were presented to the jury on behalf of the plaintiff, Duncan:

The Court of Civil Appeals said that the evidence was conflicting, and, it being conflicting, we must adopt that statement which is most favorable to Duncan, in whose favor the jury found on the issues presented. We therefore make the following brief statement of what we understand to be substantially the facts proved by plaintiff below: Diamond and Duncan were old friends and had been closely associated for many years. Diamond was in the brokerage business in connection with other business transactions, and for a number of years had superintended the procuring of insurance.for Duncan on his property, taking charge of that business entirely and placing the insurance wherever he saw fit to do so, and secured for Duncan two policies of insurance in the Traders’ Insurance Company, one for the sum of $1,500 on Duncan’s residence, and on the 16th of October, 1904, he obtained for Duncan a policy of insurance for $200 on the same property. Both of the policies were to run for three years from date thereof, and both expired before the Are occurred. Before the expiration of the time for which the insurance was issued, the Traders’ Insurance Company became wholly insolvent, which fact was unknown to Duncan, but was known to Diamond, who failed and neglected to apprise Duncan of the insolvency, or to obtain any substitute insurance for him. The result was the loss by a subsequent fire of the property which had been insured. The evidence justifies the conclusion that Diamond undertook, as insurance broker, to keep property of Duncan insured without any action on the part of Duncan, and that Duncan, relying on that undertaking and agreement, paid no attention to the issuance of the policies or when they expired or anything connected with them. After the policies had expired, something like a year’s time, the houses upon which the two policies were issued burned, and no other insurance had been procured by Diamond for the protection of Duncan. Duncan had inquired about his insurance prior to the fire and was assured that the policies were in effect and all right. Duncan had no notice of the failure of the company, and did not know that the policies were worthless or had expired, until after the houses burned, and he went to Diamond for the purpose of making proof and instituting proceedings for the collection of his claim. It was then that he heard for the first time that the company in which he was insured was insolvent and the policies had expired. Evidence on the part of Diamond controverts these facts and disputes the truth of almost everything proven on the part of the plaintiff.

[IT The facts were submitted to the jury, and the jury found in favor of Duncan. Therefore we must act upon this case on the assumption that the facts were as Duncan claimed and as the jury found, and must apply the law to them as if there were no controversy; because, the questions of fact being settled, this court cannot affect the credibility of the witnesses or anything of that character.

We restate the proposition which is before us and which contains the only issue that is presented to us in this ease, thus: Diamond, an insurance broker, undertook to keep the property of Duncan insured, and having insured it in a company that failed, and of which failure he had knowledge, did not give notice to Duncan of such failure or take steps to procure substitute insurance. The evidence upon the issue of Diamond’s undertaking to keep Duncan’s property insured is conflicting, but plaintiff’s evidence is sufficient to sustain the finding in his favor. We have no authority to inquire into the propriety of the verdict, or the correctness of the conclusions of fact. Therefore we will dispose of the case upon the finding that plaintiff in error was an insurance broker, and had for years procured insurance for defendant in error on his property and undertook to procure and furnish fire insurance on Duncan’s property, which he had done many years. Duncan had the right to rely upon Diamond’s performance of the agreement, and having failed, and the property being destroyed by fire with, no insurance, Diamond is liable for tbe loss. Me-chem on Agency, § 476; Kaw Brick Co. y. Hogsett & Woodward, 73 Mo. App. 432; D. Tliorne et al. v. Deas, 4 Johns. (N. Y.) 84; Backus v. Ames, 79 Minn. 145, 81 N. W. 766.

We find on our application docket an entry to the effect that Diamond was not liable for the $200. We have examined the matter carefully, and find no ground for difference in liability for the $1,500 and his liability for the $200. The duty to reinsure each was the same, and, upon failure, the liability must be the same. In fact, the failure of the insurance company is of no importance in this case; for if it had continued to be solvent and the policies had expired, the failure to reinsure would have imposed the same liability upon Diamond as attaches under the facts before us.

If Diamond had pleaded his right to a credit for the amount that it would have cost Duncan No reinsure the property, he might have been entitled to have that sum deducted; but the question is not before us properly. It was not presented in the trial court; in fact, it appears first in the application for writ of error.

We find nothing to justify this court in reversing the judgment of the district court. It is ordered that the judgments of the district court and the court of Civil Appeals be, and they are, affirmed.