author: KEY, C. J.

text:
    WESTERN UNION TELEGRAPH CO. v. RIVIERE.
    (No. 5429.)
    (Court of Civil Appeals of Texas. Austin.
    Feb. 17, 1915.)
    1. Telegraphs and Telephones <®^68 — Delay in Transmission — Liability—Notice— “Pass.”
    A telegraph message to Mrs. R. reading: “Come on first train. May pass away at any moment. [Signed] Mrs. W.” — disclosed on its face enough to put the telegraph company on notice that some person was ill. The word “pass” has several shades of meaning, one being : “To move beyond the reach of observation, purpose, or action; vanish; disappear; hence to depart from life; die; usually followed by away” — and it was in this sense that the words were used in the message.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 69, 70; Dec. Dig. <®=>68.
    For other definitions, see Words and Phrases, First and Second Series, Pass.]
    2. Telegraphs and Telephones <©==>68 — De-LA y in Transmission op Message — Sick Message — Notice.
    That a telegram relating to illness did not mention the name of the person who was ill did not prevent it being notice to the company of the nature of the message, and did not relieve it of liability for delay.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. .Dig. §§ 69, 70; Dec. Dig. @=>68.]
    3. Telegraphs and Telephones <©=>71 — Transmission op Message — Delay—Damages.
    A verdict for $1,200 for mental anguish from delay of a sick message, whereby plaintiff did not reach her father until 9 p. m., instead of 9 a. m., held, excessive, and that it should be reduced to the sum of $600.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 74; Dec. Dig. @=> 71.]
    Error from District Court, Williamson County; C. A. Wilcox, Judge.
    Action by W. P. Riviere against the Western Union Telegraph Company. Judgment for plaintiff, and defendant brings error.
    Judgment as remitted affirmed.
    Geo. H. Fearons, of New York City, and L. A. Hill, of Austin, for plaintiff in error. O. E. Roberts and Amos Peters, both of Taylor, for defendant in error.
   KEY, C. J.

W. P. Riviere brought this suit against the Western Union Telegraph Company to recover damages for mental suffering sustained by bis wife, Mrs. N. E. Ri-viere, for tbe negligent failure of tbe Telegraph Company to transmit and deliver in proper time tbe following message:

“Fort Worth, Texas, February 20, 1911.
“Mrs. N. E. Riviere, Taylor, Texas. Come on first train. May pass away at any moment.
“[Signed] Mrs. R. C. Wallis.”

There was a Jury trial, wbicb resulted in a verdict and Judgment for tbe plaintiff for $1,200, and tbe defendant has brought the case to this court by writ of error.

The plaintiff alleged and the proof shows that at the time in question Robert F. Wallis, who was the father of Mrs. N. E. Riviere, was very ill at the home of R. C. Wallis, in Ft. Worth, Tex., and that the message was sent by Mrs. Wallis for the purpose of informing Mrs. Riviere of her father’s condition, in order that she might come immediately to his bedside. The proof shows that delivery of the message was unnecessarily and negligently delayed, as a result of which Mrs. Riviere did not reach Ft. Worth and the bedside of her father until about 9 o’clock p. m. of February 21st, while if proper diligence had been exercised she would have reached her father about 9 o’clock a„ m. on that day. The plaintiff alleged, but the proof fails to sliow, that the agent who received and undertook to transmit the message was notified of the relationship existing between Mrs. Riviere and the unnamed party referred to in the message; and, because of the failure to prove these allegations, it is contended on behalf of the telegraph company that the plaintiff was not entitled to recover. In other words, the contention is that the language of the message was not sufficient to put the telegraph company on notice of the fact that it was sent for the purpose of apprising Mrs. Riviere that.her father was dangerously ill and might die at any time. It was first held by our Supreme Court that a message which did not, upon its face, disclose the relationship of the parties was not sufficient to put the telegraph company upon notice, and require it to contemplate, as a result of the breach of its contract to deliver, that the person for whose benefit the message was sent would suffer mental anguish on account of such breach. In the case of Telegraph Co. v: Adams, 75 Tex. 531, 12 S. W. 857, 6 L. R. A. 844, 16 Am. St. Rep. 920, the Supreme Court repudiated and in effect overruled its former decisions in the following language of Mr. Justice Henry, speaking for the court:

“It seems to be well settled that telegraph companies are not charged with knowledge of the importance of delivering cipher dispatches. As in the nature of things they cannot know the contents of such telegrams, that mode of expression being adopted to keep them from knowing, the rule is a just one that preserves them from the responsibilities that such knowledge would impose on them. There seems to be an effort to extend this rule beyond the occasion for it, and to practically make all telegrams expressed in abbreviated language cipher dispatches. We think a distinction in this respect must be made between messages couched in terms intended to conceal their meaning and such as have no such purpose, but are intended, to convey information by the use of no more words than are necessary when given their accustomed meaning. It is well known to the public, and cannot be unknown to the telegraph companies, that the utmost brevity of expression is cultivated in correspondence by telegraph. It is as well known that that mode of communication is chiefly resorted to in matters of importance, financially and socially, requiring great dispatch. When such communications relate to sickness and death, there accompanies them a common sense suggestion that they are of importance', and that the persons addressed have in them a serious interest. It would be an unreasonable rule, and .one not comporting with the uses of the telegraph, to hold that the dispatcher will be released from diligence unless the relations of the parties concerned, as well as the nature of the dispatch, are disclosed. When the general nature of the communication is plainly disclosed by its terms, instead of requiring the sender to communicate to the unwilling ears of the busy operator the relationship of the parties concerned, a more reasonable rule will be, when the receiver of the dispatch desires information about such matters, for him to obtain it from the sender, and if he does not do so to charge his principal with the information that inquiries would have developed.”

Tbe rule announced in the Adams Case has been reiterated and followed by the Supreme Court, as well as the Courts of Civil Appeals, in many subsequent cases. However, while the underlying principle upon which the rule is based does not seem to authorize it, the Supreme Court has held that the doctrine of implied or constructive notice upon which the Adams Case was founded does not go to the extent of requiring the Telegraph Company to take notice of the fact that some person not mentioned may suffer mental anguish on account of a breach of the contract. Tel. Co. v. Kirkpatrick, 76 Tex. 217, 13 S. W. 70, 18 Am. St. Rep. 37; Tel. Co. v. Carter, 85 Tex. 580, 22 S. W. 961, 34 Am. St. Rep. 826. The fundamental doctrine and underlying principle upon which the Adams Case rests is the doctrine of notice resulting from knowledge of facts sufficient to put a prudent person upon inquiry; and therefore, when a message indicates upon its face that it relates to serious illness and probable death, it would seem, upon principle, to be sufficient to indicate to the telegraph company that the message was sent in order to give some person an opportunity to come to the bedside of the person who was ill. Who that person might be would, in the nature of things, be immaterial to the telegraph company; but if it desired to know it could as readily ascertain that fact as it could the relationship between the addressee named in the message and the person referred to as being ill; and the court held in the Adams Case, and still holds, that telegraph companies must take notice of the latter fact from the face of a message which does not disclose it. But-the question involved in the Kirkpatrick and the Carter Cases is not involved in the instant case.

The points here made are: First, that the message does not disclose on its face, or put the telegraph company upon notice, that any one was ill; and, second, that it does not give the name, or otherwise disclose the identity, of the person who was ill. We have been cited to no ease, and have found none, which is similar to this in the respects referred to; but, after due consideration, we have reached the conclusion that the case comes within the principle upon which the Adams Case was decided, and that the message disclosed upon its face notice of the fact that a near relative of Mrs. Riviere was seriously ill, and that a breach of the contract to transmit and deliver the message with reasonable diligence would cause her to suffer mental anguish. It is true that the message does' not use either of the words “sick,” “ill,” or “death”; but, in determining its importance as disclosed by its language, we must consider that, in the first place, it was sent by one woman to another woman, and while that class of persons may communicate by telegraph upon business matters, they are not so likely to do so as men, and if a doubt in that respect exists, it is more reasonable to suppose that the message does not relate to business, but to family affairs. The word “pass” has several shades of meaning, the third, as given by the 'Century Dictionary, being:

“To move beyond the reach of observation, purpose or action; vanish; disappear; hence to depart from life; die; usually followed by away.”

It was in the latter sense that the words “may pass away at any moment” were used in the message here involved; and, considering that language, and the fact that it was a communication from one woman to another, we think that any person of ordinary prudence would naturally suppose that it was intended to inform the addressee that some person was seriously ill, and therefore it constituted sufficient notice in that respect.

■[2] As to the second point, while it is true that the message omits the name of the person who was ill, still we see no reason in principle why that omission should relieve ,the telegraph company from liability. It must necessarily be construed as referring by implication to some person who was seriously ill. The name of the person referred to by implication was wholly immaterial to the 'telegraph company, otherwise than it might enable it to ascertain the relationship existing between that person and the addressee, or person for whose benefit the message was 'sent; and the doctrine is well established by the Adams Case and other decisions that if the telegraph company desires information as to such relationship, it becomes its duty to •make inquiries, and therefore it is charged /with notice of the facts it might have ascertained. It has been repeatedly held that the mere mention of the Christian or baptismal name of the person for whose benefit the message was sent, or the person who was ill, is sufficient. For instance, in the Adams Case, supra, the message was addressed to F. E. Adams, but it read: “Clara, come quick, Rufe is dying.” There, the beneficiary was merely designated as “Clara” and the sick person as “Rufe,” which, in so far as the telegraph company was concerned, did not identify the person for whose benefit the message was sent, or the afflicted person from among a large number of persons named Clara and Rufe. Then in reason what difference can it make to the telegraph company whether the sick person’s name is incorporated in the message or not? In the case at bar the afflicted person was named Robert F. Wallis, and if the message had read, “Robert may pass away at any moment,” while it might have been confusing, if not misleading, as to Mrs. Riviere, for whose benefit it was sent, the mere mention of the name “Robert” would have constituted sufficient notice as to the telegraph company; and if it desired to know what particular Robert was referred to, and his relationship to Mrs. Riviere, it would have been its duty to have made further inquiries upon that subject. Hence we overrule the contention urged on behalf of the telegraph company, and hold that upon its face the message constituted sufficient notice of the fact that the father of Mrs. Riviere was seriously ill.

We decide against the telegraph company on all the other points presented in the brief, except the Contention that the verdict is excessive. Upon that point we copy from the brief of the telegraph company the following statement, conceded to be correct, and we also copy the additional statement contained in the brief of the other side:

From plaintiff in error’s brief:

“The verdict of the jury and judgment in this case is for the sum of $1,200. The only injury shown, if plaintiff is allowed to recover, would be for failure of the plaintiff’s wife to reach the bedside of her father about 12 hours before she efid. The uncontroverted testimony shows that Mrs. Riviere reached the bedside of her father about 9 o’clock p. m. February 21, 1911, and that her father died on the morning of February 25, 1911, over three days after she had reached Ft. Worth. The witness Mrs. R. 0. Wallis testified that Robert F. Wallis was conscious on the morning of February 21, 1911, but did not .remember whether or not she had any conversation with him on that day after 9 o’clock. Mrs. W. B. Owen testified that Robert F. Wallis was conscious on the morning of February 21st from 9 o’clock to 12 o’clock; that Mrs. N. E. Riviere arrived the night of February 21st, somewhere between 8 and 9 o’clock p. m. T was in the room with Robert F. Wallis at the time Mrs. Riviere entered the room. Mrs. Riviere came in the room and spoke to him and kissed him, and said, “Papa, this is Nann.” I think at first he recognized her, and then called the name “Nann.” I do not remember the exact words he stated, but they were irrational. He said “Nann and May,” and then I knew he did not know what he said. He continued, “the black and the white shall all be alike in Heaven.” He sometimes called her Mrs. Riviere, his little black girl.’ Cross-examination: ‘Yes; it is.true that on the night 9f Mrs. Riviere’s arrival Robert F. Wallis said “that he hoped and prayed that Wellie would get here.” I believe that I had forgotten that. Wellie is my brother. Mrs. Riviere is darker complexioned than I am, and is what you would call a brunette.’ ”
“R. C. Wallis testified: T am the brother of Mrs. N. E. Riviere of Taylor, Tex. For short the family call her “Nann.” My father [Robert P. Wallis] grew worse on the afternoon of February 21st. I cannot recall that I had any conversation with him on the afternoon of February 21st. I do recall that I conversed with him on the morning of that day after 8:10 a. m. He recognized me as his son. On the night of February 21st, after 8:30 o’clock, my father was very ill. He was unconscious practically all the afternoon and night of February 21st. I am sure that he did not have anything further to say to me after 9 o’clock p. m. February 21st. My sister Mrs. N. E. Riv-iere arrived on the Missouri, Kansas & Texas, due at Ft. Worth at about 8:45 p. m. February 2] st, and got to the house about 9 o’clock. The only signs of recognition was that he said “Nann and May, the black and the white, we shall all be alike in Heaven, God bless them.” The only thing I can recall in the way of conversation after 9 o’clock p. m. on February 21st was what I stated in the telegram to my brother, “that he hoped Wellie would come.” He made that statement at the time Mrs. Riviere came, probably a half minute after she entered the room. My father died the morning of February 25, 1911, at about 3:30 a. m. Mrs. Riviere of Taylor arrived on the night of February 21st, at about 9 o’clock p. m.’
“Mrs. N. E. Riviere, wife of plaintiff, testified : ‘At the time I reached my father’s bedside I considered his condition as irrational the moment he spoke. My sister Mrs. Owen said, “Papa, here is Nann.” As I went into the room she said, “Papa, Nann has come.” I went to the bed, and he reached his arms up and said, “God bless you.” There was no rationality whatever in his eyes. I have heard the evidence about what he said about the black and white; that was simply a mumble; it was very indistinct. Never after that time was he conscious at any time so that I could hold a conversation with him. There was one question I said, “Papa how are you?” He never answered me, and never knew me from that minute.’ Cross-examination. ‘My father’s home was at Bellbuckle, Tenn., until a short time before he came to Ft. Worth. He had been on a visit to his other daughter, Mrs. Owen, at Dallas. Wellie is my brother, known as C. W. Wallis, and his pet or family name is “Wellie.” Yes, sir; he is the person referred to where some one spoke about him and hoping Wellie would come.’
“Mrs. R. C. Wallis testified: ‘His [Robert F. Wallis] mind was clear up to February 15, 1911. On February 15th was the first time 1 noticed him saying anything to cause me to think he had unconscious moments. After February 15, 1911, he was conscious at times, and he was conscious on the morning of February 21, 1911.’
“R. C. Wallis testified on cross-examination by plaintiff: ‘My father, Robert F. Wallis, at that time was very ill. A very sick man. He rested very little on the night of the 20th. I was up with him practically all night. I talked with him on the morning of the 21st. I remember the conversation I had with him, and that I was speaking to him about Mrs. Riviere coming in on No. 6 train that morning. I had not been carrying on a conversation with him, as he was not able to converse as he was very weak, and at times he appeared to be conscious, and at times he did not.’ ”

From defendant in error’s brief:

“Mrs. Robert C. Wallis further testified: ‘I waited on him [referring to Robt. F. Wallis] very little after his daughter from Dallas arrived, but up to that time I had full care of the case. Mrs. Owen of Dallas arrived on February 17th. On the - afternoon of February 21st 1 passed in and out of the room in which he was sick, but was not alone with him that afternoon. On that day his sickness was growing decidedly worse. His condition for the worse changed on Monday, February 20th, somewhere between 2 and 2:30 p. m. The doctor said he had changed decidedly for the worse; positively no hopes for him. I then phoned a message to the Western Union Tel. Co. This was Monday, February 20th, between the hours of 2 and 2:30 p. m.; cannot exactly state the minute. I sent the message immediately after the doctor left, and he made his call between 2 and 2:30 p. m. I phoned to the Western Union at Ft. Worth, Tex., to have the telegram sent to Mrs. N. E. Riviere at Taylor, Tex.’
“Mrs. W. B. Owen testified, in addition to the evidence that has already been copied, as follows: T arrived on Friday, February 17, a week before he died [referring to Robt. F. Wallis]. I waited on him while he was sick, and devoted every minute of my time from the time I came; never went out of my room, only to eat. The condition of my father, Robt. F. Wallis, when I first arrived on the date above named was that he was asleep when I first came. I sat down by his bed, and we did not realize that he was so very sick; that is, I did not think him serious or dangerously ill until Monday morning. To the best of my knowledge, his mind was clear when I arrived, and I had conversation with him from the time I arrived up to February 21st. I do not remember anything particular that was said. I know we had conversation, because 1 was right with him all the time. Yes; Robt. F. Wallis all his life showed a special love and affection for his daughter Mrs. N. E. Riviere. lie showed this by often speaking and talking of her, and all his conversation showed that he loved her. Yes; Robt. F. Wallis was conscious on the morning of February 2'lst, between the hours of 9 and Í2 o’clock. Mrs. N. E. Riviere arrived on the night of February 21st, somewhere between 8 and 9 o’clock p. m. I do not know just what time it was.’
“Referring to the language quoted on page 26 of plaintiff in error’s brief of Mrs. Owen’s evidence, in which she said, ‘He then continued, “The black and white shall all be alik$ in Heaven,” ’ The statement fails to contain the language following this, which is to the effect that ‘his mind was wandering.’ After the arrival of Mrs. N. E. Riviere, we were both in the room all the time, only when she went out to attend to some things to be done, but I was in the room all the time. He only manifested signs of consciousness after the arrival of Mrs. Riviere up to the time of his death for a moment or so. After the arrival of Mrs. N. E. Riviere I do not remember anything of his having expressed any desires for anything or anybody. Yes; there were frequent communications between Robert F. Wallis and Mrs. N. E. Riviere, of Taylor.”
“Robert O. Wallis further testified: ‘After the night of February 21st, my father sank very fast. Each night we saw a great difference. His worst hours were in the afternoon, night and morning. In the daytime he seemed to get a little better. The only thing I can recall in the way of conversation after 9 o’clock p. m. on February 21st was what I stated in the telegram, “that he hoped Wellie would come.” He made that statement at the time Mrs. Riviere came, probably a half minute after she entered the room. He then sank back on his bed after he made that statement, and had nothing further to say so far as I know. Only at times when he was irrational he would live over his childhood days, speak of his younger brothers, etc. He did not discuss any business affairs after February 21st.’
“Dr. James Anderson, who attended Robt. P. Wallis in his last sickness, testified as follows: ‘My name is James Anderson. X am a physician, and was a practicing physician during February, 1911, and on X^ebruary 14, 191Í, was called professionally to attend Robert F. Wallis, and attended him until February, 24, 1911. His sickness started in with la grippe, and had chronic Bright’s disease. He also had dilated heart. He kept up pretty well until about February 20th. On the last-named date he showed bad symptoms, his pulse and breathing seemed to be greatly affected. He was conscious and his mind clear on February 20th. On E'ebruary 21st his mind was clear in the morning when I was there, and began to be a little cloudy at night. On February 21st, I visited him, probably anywhere from half past 9 to 11 o’clock a. m., and in the afternoon I visited him between 6 and 7 o’clock p. m. Yes; I had noticed that his mind began to be cloudy on the night of February 21st. I visited him on the next morning of February 22d, and I visited him every morning and evening at about the same time, as above stated, about half past 9 and 11 o’clock in the morning and between 6 and 7 o’clock at night.’
“Mrs. N. E. Riviere testified: ‘Most positively I tried to talk to him after that time [the time of her arrival at her father’s bedside] time and again, but never succeeded in getting any intelligent conversation or expressions from him. I was with him all the timé I possibly could be from the time of my arrival to the time of his death. If the message in suit had been delivered to me on the preceding afternoon, I would have proceeded at once to my father’s bedside. On the afternoon of February 20, 1911, I was at Taylor, Tex. My occupation is teacher of music in the public schools, and this is my fifth year in succession in that business. I have lived in Taylor 21 years, and am well known in that place. I was at school; passing from one classroom to the other, when the message was delivered to me. The relationship between me and my father was as close as ever such relation was between father and daughter, and such relation had been close and intimate all my life from the time I could ride on the saddle in front of him to the woods to cut logs or trees (he was a sawmill man, and my mother was an invalid during my childhood), and there were not many days, I suppose, that the weather was fit for me to go that I didn’t go with him. We moved into town when I was 9 years old. My brother had left home, possibly about the time I was 12, and being 10 years older than I. By being deprived of the right to be with my father on the morning of February 21st, I felt that it is something that can never be repaid in any way, shape, form, or fashion. My feelings were decidedly injured. I suffered mental anguish from being deprived of the right to be with him at that time. He died on February 26, 1911.’ ”

This being the condition of the record, it seems to us that the jury must have been improperly influenced by sympathy, or some other improper motive, when it assessed the damages at $1,200. The proof shows that Mr. Wallis’s mental faculties had been impaired for several days before the message was sent; that his condition, both physical and mental, had been gradually growing worse; that at times he was rational and at other times irrational; that when Mrs. Ri-viere reached his bedside he recognized her, spoke to her by name, even designating her by a pet name used exclusively by him. According to the testimony of his son, who was a witness for the plaintiff, if there had been no delay in the delivery of the message, and Mrs. Riviere had reached the bedside of her father 12 hours earlier, it is not probable that he could have engaged in any extended and satisfactory conversation with her, if it be conceded that his mental faculties would have permitted it, for the reason, as stated by the witness, “he was not able to converse, as he was very sick, and at times he appeared conscious and at times he didn’t.” Her father did not die until three days after the arrival of Mrs. Riviere, and the only grounds upon which recovery is sought is compensation for the mental anguish suffered by her on account of the fact, as alleged in the petition, that she did not reach his bedside until he became unconscious, and was denied the consolation of conversing with him before his death. We think the proof shows that she has the consolation of knowing that her father recognized her when she arrived, and knew that she had come to him in the hour of his extremity. It was not shown that she desired to make any important communication to her father, the failure to do which placed a burden upon her heart; and, while we concede that she is entitled to some compensation for the breach of the contract which prevented her from reaching her father’s bedside earlier, we think the amount awarded by the jury is so unreasonably large as to make it the duty of this court to interfere. Under the statute it becomes our duty to give an opportunity to remedy the error complained of by a remittitur; and therefore the plaintiff in the court below, who is defendant in error here, will be allowed until the 3d day of March, 1915, in which to file a remittitur of $600, in which event the judgment will be affirmed for $600; otherwise the judgment will be reversed and the cause remanded for another trial.

Remittitur of $600 was filed, and on March 3, 1915, the judgment was affirmed for $600.
      <g=>For other eases see same topic and KEY-NUMBER in all Key-Numbered, Digests and Indexes


source: Caselaw Access Project

author: HARPER, C. J.

license: Public Domain

text:
    ATCHISON, T. & S. F. RY. CO. v. SKEEN.
    (No. 401.)
    (Court of Civil Appeals of Texas. El Paso.
    Feb. 25, 1915.
    Rehearing Denied March 18, 1915.)
    1. Appeal and Error <§=>216 — Reservation op -Grounds op Review — Instructions.
    Under Rev. St. 1911, art. 1971, as amended by Acts 33d Leg. c. 59, requiring the charge to be submitted to the parties for inspection, and providing that objections thereto shall be presented before the charge is read to the jury,_ and that all objections not so made shall be waived, the refusal of special charges could not be# reviewed where there was no bill of exceptions showing that objections to the main charge were presented and the refusal of the special charges objected to at the time.
    [Ed. Note. — For other cases, see Appeal and Error, Dec. Dfg. @=>216; Trial, Cent. Dig. § 627.]
    2. Release <§=>57 — Fraud—Sufficiency oe Evidence.
    In an employé’s action for injuries, evidence as to whether a release was induced by a promise of employment which the representatives of the employer making the promise knew the employer would not carry out held to support a verdict for plaintiff.
    [Ed. Note. — For other cases, see Release, Cent. Dig. §§ 106-108; Dec. Dig. @=>57.]
    3. Release <§=>17 — Fraud—Promise op Employment.
    If the authorized agent of an employer as an inducement to the execution of a release promises an injured employé, and induces him to believe that if he will execute the release he will get employment from the company, and if such promise is not made in good faith, the release is voidable, and may be set aside for fraud.
    [Ed. Note. — For other cases, see Release, Cent. Dig. § 32; Dec. Dig. <®=>17.]
    Appeal from District 'Court, El Paso County; M. Nagle, Judge.
    Action by T. D. Skeen against the Atchison, Topeka & Santa Fé Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Turney & Burges, of El Paso, and Terry, Cavin & Mills and A. H. Culwell, all of Galveston, for appellant. Wallace & Gardner, of El Paso, for appellee.
   HARPER, C. J.

Appellee filed this suit for damages for personal injuries, which, he alleged, were occasioned through the negligence of appellant.

Appellant, among other defenses, pleaded a settlement and release. Appellee, by supplemental petition, admitted that he signed the r'elease set up, admitted receipt of $850, but that the release was obtained by fraudulent misrepresentations upon the part of the agents1 of the railway company, in that he was promised as a part of the consideration for the execution of the release, employment by the railway company, which was refused.

The trial before jury resulted in verdict and judgment for $5,000, less the $850 paid, from which this appeal is perfected.

The appellee objects to a consideration of the first and second assignments of error, because being based upon the refusal of special charges, and the record failing to disclose any bills of exception showing that appellant presented objections to the main charge, and that the refusal of the’ special charges were objected to at the time cannot be considered under Rev. St. 1911, art. 1971, as amended by Acts 33d Leg. 59. The objections are well taken, and the assignments are overruled for that reason. Heath v. Huffhines, 168 S. W. 974.

By the third assignment it is urged that the verdict of the jury is contrary to the preponderance of the evidence: (a) Because the plaintiff did not show by a preponderance .of the evidence that the release pleaded by defendant as a defense was procured by fraud; (b) that the evidence does not show that the agent who procured the release promised to plaintiff employment as an inducement to the execution of the release.

The portion of the release pleaded and admitted in evidence essential to this ojfin-ion reads:

“The Atchison, Topeka & Santa Fé Railway Company, to T. D. Skeen, Dr.
“213 N. Sheldon St., Clovis, N. M.
“Date, 1912.
July 6th. For and in full release, discharge, , and satisfaction of all .claims, demands, or causes of action arising from or growing out of any and all injuries sustained by me of every character and description, whether now apparent or which may hereafter develop, while in the performance of my duties as brakeman at or near Ft. Sumner, N. M., on or about the 16th day of October, 1911, as well as any and all claims of whatsoever kind or character I may have against the said railway company, prior hereto and up to and including the date hereof. In making this settlement, no promise or representation is or has been made relative to future employment.
Settled in full for. $850.00
“Received of the Atchison, Topeka & Santa Fé Railway Company, eight hundred fifty and no/ioo dollars, in full payment of the above claim. In consideration of the payment of said sum of money, I, T. D. Skeen, of Clovis, N. M., hereby remise, release, and forever discharge said company of and from all manner of actions, causes of action, suits, debts, and sums of money, dues, claims, and demands whatsoever, in law or equity, which I have ever had or now have against said company, by reason of any matter, cause, or thing whatsoever, whether the same arose upon contract or upon tort.
“I have read the above voucher, receipt, and release and fully understand the same.
“In testimony whereof, I have hereunto set my hand this 6th day of July, 1912.
“[Signed] T. D. Skeen.”
This relieves the railroad company of further liability unless its execution be held to have been induced by fraud.
The following is substantially all the testimony which relates to the questions raised:

Plaintiff’s testimony:

“I signed the release. Mr. McMahon was superintendent and Mr. Starkweather general superintendent. I received a telegram stating that Mr. Starkweather desired to meet me at the superintendent’s office. I met him there. He asked me what I wanted in settlement. I told him that I was still in bad condition, and didn’t want any lawsuit, but wanted to go to work, and he said: ‘There isn’t any reason why you cannot go to work, but we cannot give you a written agreement to that effect.’ I replied: ‘Tour word is good with me.’ In speaking of the matter, I was to retain my rights in the train service, and was to be given office work until I could return to the train service. Mr. Starkweather made that agreement with me. Those present while we were talking this over were Mr. McMahon, Starkweather, and Morris-sett, a stenographer. Morrissett was claim adjuster. Starkweather told me that they didn’t want me to bring a suit; they wanted to settle with me. I made a proposition to settle for $2,500, and it was refused. I said to him: ‘It is not the money so much that I want, but I want employment. I have my wife and five children here, and have been, out of employment nearly a year and want to go to work, and if you will put me to work, I will sign that release.’ And Mr. Starkweather said: T do not see any reason why you cannot go to work; Mr. McMahon can place you.’ I think these were his exact words. I still believed at that time that I was going to get well and could resume my former service. And in speaking of clerical work, I said: ‘You understand I cannot support my family on less than $65 per month.’ I* understood that they were to. give me work at $65 per month and promote me as my ability would warrant. If my foot did not get well I was to continue in the clerical work. If my foot got well, I was to maintain my position — my seniority. In addition to the life job, they were to pay me $850. This was for time T had lost up to that time. I took the •last proposition under advisement until next morning, then went to the claim adjuster’s office, and, while waiting for him to complete the papers, I saw McMahon, and said to Mm: ‘I’m going to sign that release, and just as quick as I get back from Topeka, I want you to put me to work,’ and he said: ‘All right.’ I relied on their statements. Their promises of employment induced me to sign the release.”

G-. O. Starkweather:

“I am not now in the employment of defendant. I had a conversation with Skeen in regard to the settlement with the company for his injuries. I asked him what he wanted in settlement. I think his first demand was $2,000 and a situation. I told Mm that the situation part would have to be left out entirely; that 1 would not talk to him along that line. I offered him $750, and he refused it. I then said to him: ‘That is all I can do, but will take it up and see if I can get you another hundred.’ Then he said something about a clerical position, and said, ‘How will I stand here as a brakeman?’ and I turned to McMahon and asked, ‘Is there anything against Skeen, here?’ and he said, ‘No,’ and I told Skeen, ‘You will stand as a brakeman after you get well, the same as before.’ I got a telegram giving authority to pay $100 more, informed Skeen, and he took the matter under advisement until next morning. I left that night. I could have made a position for him if I had wanted to, and so could McMahon. I explained to Mr. Skeen that it was the uniform practice of the Santa Eé Company in making settlements for injuries not to offer future employment as a consideration for a release. I did not hold out to him the promise of future employment as an inducement to secure this release, with the intention of not fulfilling the agreement. I did not intend to stand in the way of Ms re-employment. I absolutely refused to give him any promise of position.”

J. E. McMahon, defendant’s witness:

“I was present at the conversation between Starkweather and Skeen in regard to a settlement of Ms claim for injury. Starkweather did not offer to Skeen in my presence a clerical position as an inducement to secure this release.”

Arthur Dinan, defendant’s witness:

“I was present at a conference between Mr. Starkweather and Mr. Skeen until Skeen left to consult with his wife. Starkweather offered him $700 and Skeen then wanted to know whether he would promise him a position as a clerk during the time his foot was getting well. Mr. Starkweather absolutely refused to give Mm any promise of any position during the time or at any time in the future.”

Morrissett, defendant’s witness:

“I was present at a conference between Mr. Starkweather and Mr. Skeen, in which the question of settlement was taken up. Skeen met Starkweather and myself at McMahon’s office by appointment on the morning before the settlement was made for the purpose of taking up the matter of settlement. Starkweather asked Skeen what he thought we ought to do for him, and he made us two propositions; one was that wo were to pay him $2,000 and give him a clerical position; and the other was that we should pay him $100 a month until he was able to go back to work. Starkweather turned them both down. I did not make an offer to him of $850 and employment. No such offer was made to him in my presence.”

The rule in this state seems to be that if the authorized agent of the company, as an inducement to the execution of the release, promised the plaintiff, and by such promise induced him to believe, that if he would execute the release he would get employment from the company, and that if such promise was not made in good faith, then the release was voidable, and subject to be set aside for fraud. Rapid Tr. Co. v. Smith, 98 Tex. 553, 86 S. W. 322. Under the facts of this record, the only question presented for our determination is: Was there.that preponderance of evidence required to establish that the promise of employment was made? To put it the other way: Is the evidence so lacking as1 to be so deficient in its preponderance that a new trial should be here ordered? Eor, if the promise of employment was made, then, by the defendant’s witnesses’ testimony, they knew that the promise would not be fulfilled, because they swear that the Santa Eé' Company made no promises of future employment in such cases of settlement; therefore its agents were not authorized to make them, and, if made, they knew that they would not be carried out.

We think the evidence above quoted sufficient to sustain the verdict and judgment rendered in the respect mentioned, and the judgment is accordingly affirmed.
      <§=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: LEVI, J.

text:
    GLOVER v. PHILLIPS.
    (No. 1426.)
    (Court of Civil Appeals of Texas. Texarkana.
    March 10, 1915.
    Rehearing Denied March 18, 1915.)
    1. Appeal and Error ©=1002 — Review of Pacts — Conflicting Evidence.
    A verdict on conflicting evidence as to ■whether there was an express warranty will not be disturbed on appeal.
    [Ed. Note. — Por' other eases, see Appeal and Error, Cent. Dig. §§ 8035-8937; Dec. Dig. @=> 1002.]
    2. Sales <©=>269 — Application of Rule of Caveat Emptor.
    The rule of caveat emptor did not apply, where a seller knowingly sold a mule having a bone spavin not discoverable except through time and nicety of observation.
    [Ed. Note. — Por other cases, see Sales, Cent. Dig. § 746; Dec. Dig. ©=5269.]
    Appeal from Hopkins County Court; Dan R. Junell, Judge.
    Action by T. W. Glover against Bob Phillips. Prom a judgment for defendant, plaintiff appeals.
    Reversed and remanded.
    J. A. Dial and B. W. Poster, both of Sul-phur Springs, for appellant. C. E. Sheppard, of Sulphur Springs, for appellee.
   LEVI, J.

The action originated in the justice court, and is to recover damages occasioned to appellant in the sale to him of an alleged unsound mule. On appeal to the county court the case was tried to the court without a jury, resulting in judgment for ap-pellee. Appellant seeks revision of the judgment upon the ground that it is contrary to the evidence. The substance of the evidence is that appellee sold and delivered to appellant two mules for the sum of $325 cash. At the time of the agreement of purchase and sale the two mules were in appellee’s barn. Before consummating the agreement appellant desired to see them driven to a wagon. They were then hitched to a wagon, and with one of the wheels of the wagon locked were driven by appellant and appellee from the barn to the public square of the town. After arriving upon the public square, appellant received the mules and paid the agreed purchase price through a check on the bank. As a fact, one of the mules at the time of the sale was diseased with bone spavin. Appellant testified that he did not know of the diseased condition at the time of purchase, and that when he—

“saw the mules in the barn and looked them over there was nothing about the mules or their appearance which would show or indicate, or which did show or indicate, to me that there was anything the matter with the mule,” and “in driving the mules from defendant’s barn to the public square they appeared all right and acted and seemed to be in good condition.”

Appellant further testified that appellee yerbally guaranteed the mules to be good and sound. Appellee, though, denied that he guaranteed the mules, and testified that he “told plaintiff he was not guaranteeing them.” Appellee further said:

“At the time I sold the mules to plaintiff I knew the diseased condition of the mule in question, but did not advise or communicate this knowledge to plaintiff.”

It therefore appears from the evidence that the purchaser did not discover the defect in the mule by reasonable diligence, and, giving force to his testimony, which in that respect is not disputed, no defect appeared from observation or in the test given in pulling the wagon. The diseased condition is therefore shown to appear latent, and any other finding was not warranted. The appellee, it appears, well knew the fact of the diseased condition, but made no statement about it and held his peace, seeing, as inferable, that the purchaser did not discover the diseased condition. The two mules were sold, it appears, for the lump sum of $325 cash, resulting in making the price to the purchaser for each mule as great as each mule would have commanded, if sound. If one mule had less value than the other, it does not appear that such agreement was made by the buyer and seller.

The evidence being conflicting as to whether there was an express warranty of soundness, this court is without power to handle that phase of the case, and would not attempt to disturb the verdict in that respect. But in view of the facts of the case this court may consider, under the assignment of error, that phase of the case involved in the judgment of the court in respect to the failure of the seller to make disclosure of his superior knowledge of the fact as to the unsoundness of the mule. It is thought that in the respect mentioned the finding of the court, involved in his judgment, 'is against the weight of the evidence. It is believed that the rule of caveat emptor does not apply where a seller knowingly sells a diseased mule without declaring the disease, if it were such as not to be discovered except through time and nicety of observation. Moncrief v. Wilkinson, 93 Ala. 373, 9 South. 159; Brown v. Gray, 51 N. C. 103, 72 Am. Dec. 563; Hughes v. Robertson, 1 T. B. Mon. (Ky.) 215, 15 Am. Dec. 104. Reference: McKinney v. Fort, 10 Tex. 220; Wintz v. Morrison, 17 Tex. 372, 67 Am. Dec. 658.

The judgment is reversed, and the cause remanded for further proceedings.


author: WILLSON, C. J.

text:
    EMINENT HOUSEHOLD OF COLUMBIAN WOODMEN v. HANCOCK.
    (No. 1415.)
    (Court of Civil Appeals of Texas. Texarkana.
    March 4, 1915.
    Rehearing Denied March 18, 1915.)
    1. Insurance ©=787 — Fraternal Insurance — Accidents—Cause of Loss — “Loss of One Arm.”
    Where an insurance policy provided that in the event of the “loss of one arm * * * this guest shall receive one-half” the policy, it would, unless otherwise limited, entitle insured to recover on showing an injury totally paralyzing one arm, as the words “loss of one arm” did not necessarily mean loss of the arm by severance and in no other way.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1955, 1957-1959; Dec. Dig. <⅜=> 7S7.
    For other definitions, see Words and Phrases, First and Second Series, Loss of Limb.]
    2. INSURANCE <©=3718 — CONSTRUCTION 03? P03> icy — Incorporation op Constitution and By-Laws — “Loss op One Arm.”
    Where a policy issued to plaintiff made the constitution and by-laws of the order a part of the policy, they were to be construed with and as limiting the provisions of the policy, and consequently plaintiff could not recover for an injury causing paralysis of an arm, under a provision of the policy for “loss of one arm,” in view of a provision in the constitution and bylaws limiting such loss to “the loss of one arm by severance at or above the wrist.”
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1854; • Dec. Dig. <©=>718.]
    Appeal from Titus County Court; Sam Porter, Judge.
    Action by George W. Hancock against the Eminent Household of Columbian Woodmen. From a judgment for plaintiff, defendant appeals.
    Reversed, and judgment rendered.
    T. C. Hutchings, of Mt. Pleasant, and S. F. Caldwell, of Austin, for appellant. Rols-ton & Rolston, of Mt. Pleasant, and Turner, Graham & Smitha, of Texarkana, for ap-pellee. •
   WILLSON, C. J.

This appeal is from a judgment for $500 recovered by appellee against appellant on a policy of insurance for $1,000 issued by the latter September 9, 1908.

In his petition appellee 'alleged that on December 10, 1913, while the policy was in force, he received an injury to his left arm which totally paralyzed same, rendering- it useless; and he alleged that appellant thereby became liable to him in the sum of $500, one-half of the value of the policy, which it had refused to pay.

Appellee proved that in a fight he had with one Parker the large muscle and motor nerve were so badly cut as to render his arm useless, and contended that the injury was within a provision of the policy as follows:

“In the event of a loss of one arm * * * this guest shall receive one-half the value of this covenant at the time of such loss, in five equal installments.”

By the terms of the policy appellant’s constitution and by-laws were made a part of it. Appellant contends that the provision of the policy above quoted should be construed in connection with a provision (set out below) in said constitution and by-laws, and that when so construed said provision in the policy meant that the loss of the arm must be by a severance thereof at or above the wrist. As it conclusively appeared that the arm was not so severed, appellant contends that the injury was not a risk covered by the policy, and therefore that it was not liable. The provision in the constitution and by-laws referred to was as follows:

“On the holder of a beneficiary covenant while in good standing sustaining the loss of one arm by severance at or above the wrist * ⅜ * he shall receive one-half the value of his covenant at the time of such loss, in five equal installments.”

If the provision in the policy should be construed without reference to the one in the constitution and by-laws, the fact that ap-pellee’s arm was not severed from his body would not be a reason why the judgment in his favor should be set aside; for the words “loss of one arm,” used in that provision, did not necessarily mean that the loss of the arm must be by a severance and in no other way. Modern Order of Praetorians v. Taylor, 127 S. W. 260; 4 Cooley’s Briefs on the Law of Insurance, p. 3301. But appellant’s constitution and by-laws having been made a part of the contract, appellee was not entitled to have that provision in the policy so construed. On the contrary, its meaning should have been determined with reference to the provision in the constitution and by-laws set out above. 1 Cooley’s Briefs on the Law of Insurance, pp. 698 to 702.

The question then is: Did the provision in the constitution and by-laws operate to so limit the provision in the policy as to exempt appellant from liability on the ease made by the pleadings and the testimony?

It is believed the answer to the question should be in the affirmative. The provision in the constitution and by-laws is capable of no other construction than one limiting the liability of appellant for the loss of an arm to one lost by severance from the body. That provision seems to have been the authority for and basis of the provision in the policy. Yet the last-mentioned provisipn cannot be construed as binding appellant to pay for the loss of an arm by other means than a severance thereof from the body without wholly ignoring the provision in the constitution and by-laws. As that provision cannot be ignored, and as, construing the two provisions together, both can be given effect, in treating the one in the constitution and by-laws as limiting or explaining the one in the policy, we think that course should be pursued. Therefore the judgment will be reversed, and judgment will be here rendered that appellee take nothing by his suit against appellant, and that the latter recover of the former the costs of this court and of the court below.
      ©=For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <gc3>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HODGES, J.

text:
    SOUTHERN BENEV. LEAGUE v. ENGLISH.
    (No. 1408.)
    (Court of Civil Appeals of Texas. Texarkana.
    Feb. 19, 1915.
    Rehearing Denied March 18, 1915.)
    Judgment <§⅜153 — Defaults — Setting Aside — Time for Motion.
    The granting or refusal of a motion to set aside a judgment by default, not made within the two days prescribed by statute, is within the discretion of the court, if sufficient excuse be not given or failure to file an answer, or to file the motion within the time required.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 300-304; Dec. Dig. ®=»153J
    Appeal from Hopkins County Court; Dan R. Junell, Judge.
    Action by Oscar Hay English against the Southern Benevolent League. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Jas. L. Bailey, of Paris, and John G. Todd, of Houston, for appellant. D. Thornton, of Sulphur Springs, for appellee.
   HODGES, J.

The appellee sued the appellant in the court below to recover a balance claimed to be due upon a policy of insurance. The petition alleged that the appellant was a fraternal insurance association engaged in writing for its members certificates of insurance; that it issued policies, agreeing, in ease of death of a member, to pay, in addition to the face of the policy, $100 for burial expenses and $100 for the erection of a tombstone; that in June, 1910, the appellant issued a policy of insurance, whereby it agreed to and did insure the life of the appellee’s wife in the sum of $1,000, to be paid to the appellee in the event of her death while the certificate was in force. The petition admits credits on the amount originally due on the policy in the sum of $253.88, leaving a balance of $946.12, for which judgment was asked. It appears from the record that citation was issued and served on the commissioner of insurance and banking under the provisions of article 4844 of the Revised Civil Statutes. When the case was called for trial in the court below on April 7, 1914, no answer had been filed by the appellant, and no appearance made in its behalf, the court thereupon proceeded to hear the evidence, and rendered judgment in the sum sued for. It is admitted that this judgment is excessive to the extent of $20, and a remittitur covering that excess was filed in the court below.

On July 19th the appellant filed a motion for a new trial, alleging, among other things, that the petition sued on was fatally defective in failing to state that all the conditions of the policy had been complied with, and that notice and proofs of death had been given. It was also alleged that Tom C. Swope, the president and general manager of the defendant, had never received a copy of the citation, notifying him of the pendency of this suit, until after the judgment by default was rendered; that if the commissioner of insurance and banking had sent or mailed any copy, as required by law, the president and manager of the appellant, by reason of being sick and out of his office, did not receive it, and was unable to give it the necessary attention. It was further stated that the defendant had a good and meritorious defense, based upon facts tending to show a previous settlement between the appellee and the company, in which the former agreed to accept the sum of $623.88 in full payment of all the balance due, to be paid in monthly installments of $50. The motion was signed by Jas. L. Bailey, attorney for the appellant. The jurat of the clerk simply shows that it was subscribed and sworn to on the 20th of July, 1914, but does not state by whom the oath was made. The court heard testimony regarding the facts set up in the motion, and rendered a judgment overruling it, making no findings of fact regarding the diligence offered as an excuse for the failure of the appellant to answer to the merits of the case or to file the motion for a new trial within the two days prescribed by statute. It has been definitely determined by our Supreme Court that if a motion to set aside a judgment by default be filed more than two days after the judgment was entered, and if sufficient excuse be not given for the failure to file and answer or to file the motion within the time prescribed by law, it is in the discretion of the court to grant or refuse the motion. El Paso & S. W. Ry. Co. et al. v. Kelley, 99 Tex. 87, 87 S. W. 660. We have carefully examined the testimony offered in support of the ground set up' in the motion for a new trial, and have reached the conclusion that the court was justified in finding that there was no sufficient excuse shown for the failure of the appellant to appear and answer the suit before the rendition of a judgment on the merits, or for its failure to file the motion for a new trial within the time prescribed by law. We are also of the opinion that the facts relied on to constitute a meritorious defense are not such as to show an abuse of the discretion lodged in the court to refuse to set the former judgment aside.

The judgment is affirmed.


text:
    ZMEK v. DRYER.
    (No. 1423.)
    (Court of Civil Appeals of Texas. Texarkana.
    Feb. 25, 1915.)
    1. Appeal and Error ⅞=»301 — Reservation of Error — Motions for New Trial — Assignment of Error.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 1607, 1612, relating to presentment of case on appeal, and providing that the assignments of error in the motion for new trial shall constitute the assignments of error, and need not be repeated, and Court of Civil Appeals rules 23, 24 (142 S. W. xii), a plaintiff in error who filed a motion for new trial below is confined on appeal to the grounds of error set up in such motion, except that he may assign, and the court may consider, error of law apparent upon the record.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1743, 1753-1755; Dec. Dig. &wkey;?301.]
    2. Appeal and Ekkoe <&wkey;719 — Assignments OE EeBOE — EeKOKS “APPARENT UPON THE Record.”
    Under Vernon’s Say les’ Ann. Civ. St. 1914, arts. 1607, 1612, and Court of Civil Appeals rules 23, 24 (142 S. W. xii), limiting review to errors assigned or to error “apparent upon the record,” alleged error, to determine. which would require consideration of the pleadings and evidence, was not reviewable as error “apparent upon the record.”
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2968-2982, 3490; Dec. Dig. <⅜^719.
    For other definitions, see Words and Phrases, Second Series, Apparent on the Face of the Record.]
    Error from District Court, Bowie County; W. T. Armstead, Judge.
    Action by E. A. Dryer against Joseph Zmek and others. There was a judgment for plaintiff, and defendant Zmek brings error.
    Affirmed.
    Jesse A. Miller owned a tract of land containing 560 acres in Bowie county, and a tract containing 465½ acres in Cass county. January 30, 1911, said Miller, in writing, authorized J. M. Christopher and J. N. L. King to sell said land on terms specified. February 2, 1911, Miller, for a consideration paid to him by defendant in error, E. A. Dryer, by an instrument in writing, gave said Dryer an option, to be exercised within three days, to purchase the land on terms specified. February '4, 1911, Dryer notified Christopher, as Miller’s agent, that he had determined to avail himself of the option and buy the land on the terms offered by Miller. On the same day — to wit, February 4, 1911 — Dryer, for himself, and Christopher, for Miller, executed an instrument in writing whereby Dryer bound himself to purchase the land, and Miller bound himself to sell and convey same to Dryer. February 6, 1911, Miller and Dryer met in the law office of Hart, Mahaffey & Thomas, where, in compliance with their (Miller’s and Dryer’s) instructions, two deeds to be executed by Miller to Dryer — one conveying the Bowie county land, and the other the Cass county land — were prepared. Miller was present during part of the time these deeds were being written, but before they were completed and ready to be executed by him he was called away by appellant, Zmek. Miller never afterwards executed the deeds, but, instead of doing so, on the day they were prepared sold the Cass county land to plaintiff in error, who, when he purchased same, had full notice of the fact that Miller had contracted to sell same to Dryer as stated. This suit was by Dryer against Miller and his wife and Zmek to specifically enforce the contracts of February 2, 1911, and February 4, 1911, referred to above. It appears from the record that the controversy between the parties, so far as it affected the Bowie county land, was adjusted before the cause was tried. The writ of error was sued out by Zmek alone from a judgment in favor of appellee specifically enforcing the contract as to the Cass county land. The trial was by the court without a jury. The conclusions of fact and law on which the court based the judgment were not reduced to writing and filed as they might have,been.
    Mahaffey & Keeney, of Texarkana, for plaintiff in error. Rodgers & Dorough, of Texarkana, for defendant in error.
   WILLSON, C. J.

(after stating the facts as above).

It is believed this court is without authority to consider the assignments of error relied upon in plaintiff in error’s brief, and that the judgment should be affirmed because error therein is not apparent on the face of the record. Plaintiff in error having filed a motion for a new trial in the court below, he is confined in this court to the grounds of error set up in his motion, except that he may assign, and this court may consider, an error of law “apparent upon the record.” Articles 1607 and 1612, Vernon’s Statutes; Rules 23 and 24 (142 S. W. xii) for Courts of Civil Appeals; Astin v. Mosteller, 152 S. W. 495. The grounds of error urged in the motion for a new trial are not urged here, but, instead, plaintiff in error relies upon assignments presenting, he contends, “fundamental errors.” These assignments are three in number. The first is that the court erred in rendering the judgment he did render because it appeared that the contract sued upon was not executed by Miller, but by Christopher, as his agent; and because it further appeared that, if Christopher had authority to act for Miller, it was to act jointly with King, and not alone, as he did in executing the contract of February 4, 1911. The second assignment is that it appeared that the court “found,” quoting, “it impossible, on account of the homestead rights of the defendants Miller in the Bowie county land, to enforce the alleged executory contract in its entirety, and, since the consideration for such alleged executory contract moving from the plaintiffs to the defendants Miller was not a money consideration in its entirety, such executory contract was not divisible, and the court was without power either to decree a partial performance of the contract or to make a new contract for the parties and to decree its execution.” The third assignment is that it appeared from the contract sued upon that “plaintiff (quoting) was to purchase from the defendant Miller two tracts of land, * * * and was to, as consideration therefor, pay $250 in cash, and to execute and deliver (to Miller) good and sufficient deeds to certain lots * * * to He selected from other lots owned by plaintiff,” and that the court was without authority “to divide the contract and enforce a portion of it, because this amounted to making for the parties a contract to which neither had assented.” As we view it, it would be necessary, in order to determine whether the court erred as charged or not, to look to the pleadings and testimony and determine whether the suit was maintainable on the contract of February 2, 1911, executed by Miller himself, or not (26 A. & E. Enc. Law, 100; Williams v. Graves, 7 Tex. Civ. App. 356, 26 S. W. 334), and, if it should be determined it was not, but was maintainable only on the contract of February 4, 1911, executed on his behalf by Christopher, to determine whether there was testimony to suiiport a finding that Miller was bound by Christopher's act in executing the last-mentioned contract, and, if there was, then to determine whether the court, because of the adjustment between the parties to the controversy as to the Bowie county land, or for other reason appearing in the facts, had * a right to specifically enforce the contract as to the Cass county land alone, or not. We therefore do not think the errors assigned should be treated as “errors apparent on the face of the record,” as that phrase has been defined by the Supeme Court (Oar v. Davis, 105 Tex. 479, 151 S. W. 796; Houston Oil Co. v. Kimball, 103 Tex. 94, 122 S. W. 537). In the Kimball Case that court said:

“Webster defines the word ‘apparent’ thus: ‘Clear or manifest to the understanding; plain; evident; obvious; appearing to the eye or mind.’ This does not mean that an error which can be ascertained by looking into the record and considering the evidence may be considered without an assignment, for that would include every error which can be considered at all. Nothing can be considered as an efror which cannot be made apparent by an examination of the record. Therefore the language of the statute must be given that construction which will make it consistent with its requirements in other respects. The language ‘apparent upon the face of the record,’ indicates that it is to be seen upon looking at the face of the record (that is, the assignment itself), the fact pointed out by it must show a good and sufficient ground for the court to interfere to prevent injustice being done. to one of the parties. Perhaps the best expression is that it must be a fundamental error; such error as being readily seen lies at the base and foundation of the proceeding and affects the judgment necessarily.”

The judgment is affirmed.
      ©=oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <g&wkey;For other eases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes