author: LEVY, J.

text:
    DALLAS COUNTY et al. v. BOLTON et al.
    (Court of Civil Appeals of Texas. Texarkana.
    June 12, 1913.)
    1. Taxation (§ 316*) — Assessors—Compensation— Collection of Delinquent Fees.
    On October 28th the comptroller of the state, as required by Rev. Civ. St. 1911, art. 7584, gave the county tax assessor an order upon the tax collector for the amount of fees due him for assessing the state taxes. The assessor, who had prior to that time received the salary and expenses allowed him by law, indorsed the order and deposited it with a bank, as he claimed, for collection, but, as claimed by the county, as collateral security for a debt. Part of the amount of the order was paid on November 5th, but the balance remained unpaid at the end of the assessor’s term on December 1st and was included by him in the statement of delinquent fees which he was required to make by law. There were sufficient funds in the hands of the collector continuously after November 16th to pay the balance due on the order, but it was not presented for collection either by the assessor or by the bank. The assessor had been re-elected and, after he qualified as his own successor, the balance due on the order was paid. Under article 3899 three-fourths of the amount was due to the county and one-fourth to the assessor and the latter also retained 10 per cent, of the amount due to the county, claiming authority under article 3892, which provided that the assessor should be entitled to 10 per cent, of all fees collected which were shown to be delinquent by his annual statement. Held, that, since the delinquency in the payment of the balance due on the order was due to the failure of the assessor or the bank, for whose actions in that respect he was responsible, to present the order to the collector for payment before it became delinquent, he could not claim his fee for collecting it.
    [Ed. Note. — For other cases, see Taxation, Gent. Dig. §§ 522-524, 811; Dec. Dig. § 316.*]
    2. Taxation (§ 324*) — Assessors—Liability on Official Bonds.
    Since the wrongful appropriation of the 10 per cent, was made after he had qualified for his second term, the sureties on the second bond and not those on the first bond are liable.
    [Ed. Note. — For other cases, see Taxation, Gent. Dig. §§ 540-547; Dec. Dig. § 324.*]

      3. Taxation (§ 324) — Liability op Collector — Failure to Pay Taxes Collected.
    The tax collector was not liable for the amount of the fee retained by the assessor, since he was not compelled to pay the order until it was properly presented to him.
    fEd. Note. — For other cases, see Taxation, Cent 'Dig. §§ 5-40-547; Dec. Dig. § 324.]
    Appeal from Dallas County Court; W. F. Whitehurst, Judge.
    Action by Dallas County and others against James E. Bolton and others. From a judgment in favor of James E. Bolton, Dallas County and others appeal.
    Beversed and judgment rendered against James E. Bolton, as tax assessor, and the sureties upon his second bond and against Dallas County in favor of H. W. Jones, tax collector, and his sureties and the sureties upon the first bond of the tax assessor.
    Currie McCutcheon, J. L. Goggans, D. A. Eldridge, and Jeff Word, all of Dallas, for appellants. Pierson, O’Donnell & Pierson, Thompson & Word, and Samuell & Adams, all of Dallas, for appellees.

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

   LEVY, J.

The suit was brought by Dallas county against James E. Bolton, the county tax assessor, and the sureties on his official bond to recover the sum of $402 and interest claimed by the county as balance of excess fees due it for the year 1908 and wrongfully retained by the assessor. The assignment made by Dallas county complaining of the refusal of the court to peremptorily instruct a verdict in favor of the county against the tax assessor and his sureties should be sustained, we thinli; and this ruling determines the appeal.

Appellee Bolton held the office of tax assessor of Dallas county two regular terms; the first term began December 1, 1906, and he qualified as his own successor for the second term on November 23, 190S. During the same periods appellant Jones was the county tax collector. Dallas county comes within that classification of counties wherein the tax assessor is allowed by statute the maximum compensation for his services of an amount not exceeding $2,500 per annum and one-fourth of the excess of fees collected. The comptroller of the state on October 28, 1908, gave an order on H. W. Jones, tax collector of Dallas county, to pay to the order of James E. Bolton $9,359.99 out of the state revenue and state school taxes collected for the year 1908. This sum was the amount of legal fees due tax assessor Bolton by the state for assessing the state taxes in Dallas county for the year 1908. The order was received by appellee Bolton about November 1, 1908. After the receipt of the order the assessor wrote on the back of the order as follows: “Pay to the order of the City National Bank of Dallas, Texas. James E. Bolton, Assessor Dallas County” — and then delivered the order to the bank. It is the contention of Bolton that he indorsed the order to the bank for collection, and it is the contention of the appellant that the order was assigned to the bank as collateral security for a debt. On November 5, 1908, the tax collector, Jones, paid the City National Bank on the order $4,000, which was about the amount of the taxes collected at that date. On December 5, 1908, the tax collector further paid the City National Bank the balance in full of the order. While the balance in full of the order appears to have been paid on December 5, 1908, it was not because there was not in the hands of the tax collector before that time a sufficient amount of state taxes collected with which to pay same. It conclusively appears that at the close of business on November 16,1908, the tax collector had collected on the tax rolls of 1908 the sum of $2,857.84 in state revenue taxes and the total sum of $7,594.27 in state school taxes, which was more than enough on hand in each fund to pay the balance on the said order of the comptroller. And on each day after November 16th and to December 1st there were sufficient taxes in each fund in the collector’s hands to pay the balance of said order. Appellee Bolton testified that he several times before December asked the collector to pay the balance of the order. But it is an undisputed fact that neither Bolton nor the bank ever presented-the comptroller’s order to the tax collector and demanded payment of the balance due. On December 3, 1908, appellee Bolton made his annual report, as required by law, to the district court of Dallas county for the fiscal year beginning December 1, 1907, and ending November 30, 1908, showing the amount of fees earned during the year, the amount actually paid prior to December 1, 1908, and the amount due and unpaid on December 1, 1908. In this report appellee Bolton reported as unpaid and uncollected the sum of $5,359.99, which was the balance due on the order issued by the comptroller and thereafter paid to the bank on December 5, 1908. Previous to November 30, 1908, the salary of $2,500 allowed by law to the assessor had been paid, and all expenses and deputy hire of the office had been paid, and the amount of $5,359.99 was wholly excess fees, of which, under the law, one-fourth belonged to the assessor and three-fourths, viz., $4,020, would go to Dallas county.

The principal feature of the case is the right of the assessor under the facts to retain or hold 10 per cent, of the $4,020 as compensation. Appellee Bolton predicates his right to claim and to have as compensation the $402 sued for upon the ground that on the close of the fiscal year ending November 30, 1908, the balance of $5,359.99 payable on the order of the comptroller was unpaid, and that he was required by law to make report of fees not collected by that date, and therefore the three-fourths of the amount mentioned became under article 3892, R, S. 1911, delinquent fees due tlie county, for tlie collection of which he was entitled to a commission of 10 per cent. The $4,020 of the balance due on the order of the comptroller is admitted-iy excess fees going to the county of Dallas. As a part of the county revenue it was the duty of the assessor to receive the same from the tax collector and to himself pay it over to the county treasurer. Article 3889, R. S. The assessor having the authority to receive the portion of the county revenue from the tax collector, and it being his duty to do so, he would he required to perform the duty of receiving the money from the tax collector with reasonable dispatch and in the manner demanded by law. The comptroller was authorized by law to give the order to the assessor. Article 7584, R. S. The order being legal authority to the collector to pay over the taxes, the possession of the same was necessary as a voucher to properly account for such taxes. 'Consequently the collector of taxes was not required by law to pay over the balance due on the comptroller’s order until the order was presented to him and payment thereof demanded, and it was the duty of the assessor to present same to the collector for payment. And it is conclusively shown that the order was not presented to the collector by the assessor himself at any time between November 5th and the close of the fiscal year. And it is an admitted fact that the City National Bank, who was in possession of the order, did not present the same and demand payment of the balance to the tax collector between November 5th and the close of the fiscal year. If the assessor assigned the order, either as a whole or for his part, to the bank as collateral security, then he had placed himself in a position as to the order wherein he could not himself make proper presentation of the orden to the collector for the payment of the balance due on it. And if the assessor placed the order with the bank only for collection, as contended by him, still it appears that the bank did not present the order to the collector for the payment of the balance before the close of the fiscal year, and the assessor would be bound by the failure of the bank to act. And even if the collector had stated to the assessor that he would go to the bank and pay to the bank the balance due, the assessor knew in ample time before the close of the fiscal year that the collector had not paid over the balance due and was not intending to pay same before the close of the fiscal year without presentation sooner made to him of the order. Therefore it must be said, we think, that if a commission was due the assessor on the balance coming to the county reported unpaid on the comptroller’s order because uncollected by December 1, 1908, the delinquency authorizing such compensation was occasioned by reason of the fact alone that the assessor, or the bank acting for him, made no proper demand upon the tax collector for the payment of the amount reported unpaid, and that no proper diligence had been exercised to receive the money from the collector before the close of the fiscal year. If the failure of the assessor to actually receive the money due on the comptroller’s order by the close of the fiscal year on November 30th operated to make the $4,020 “delinquent fees as may be due the county,” and such delinquency was brought about solely by the assessor’s own negligent act or fault, as here, then we think the assessor should be held concluded, as pleaded by the county, by his own fault from asserting any claim to the commission against the county. We think under the evidence the county was entitled to a judgment against the assessor and his sureties for the money.

And as the appropriation of the sum occurred after the second bond was executed by the assessor, the sureties on such bond would be liable.

It appearing from the record that no proper demand was made of the tax collector for the payment of the balance on the comptroller’s order, the delinquency of payment before December 1st could not be said to have been caused by him, and therefore the county was not entitled to recover of the collector and his sureties.

The judgment of the county court is reversed and here rendered in favor of Dallas county against James E. Bolton, tax assessor, and T. L. Eerguson, Thos. Larkin, A. S. Thompson, arid Max Hahn, sureties on his bond, for $402, with interest from December 5, 1908, and costs of the trial court in respect to it and such parties and one-half of cost of this appeal; and further judgment is rendered against Dallas county and, together with one-half of the cost of appeal and all costs incurred in the district court by such parties, in favor of H. W. Jones, tax collector, and his sureties, E. O. Tenison, Alex Sanger, L. A. Pires, and O. A. Keating, and, together with all costs incurred by them, in favor of Thomas Shearon, A. S. Jackson,. Max Hahn, and M. B. Alkin, the sureties on the first bond of James E. Bolton, tax assessor.


source: Caselaw Access Project

author: KEY, O. J.

license: Public Domain

text:
    McCARTY v. GRAY et al.
    (Court of Civil Appeals of Texas. Austin.
    May 28, 1913.)
    Appeal and Error (§ 80) — Judgments Ap-pealable — Parties—Disposition.
    Where a judgment did not dispose of the action as to all of the defendants and the entire subject-matter of the litigation, it was not final or appealable.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 429, 432, 433, 450, 456, 457, 494-509; Dec. Dig. § 80.]
    Appeal from San Saba County Court; J. T. Hartley, Judge.

      Action by R. B. McCarty against D. F. Gray and others. Judgment for defendant Treadway, and plaintiff appeals.
    Dismissed.
    G. A. Walters, of San Saba, for appellant. Walker & Burleson, of San Saba, for appel-lees.

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

   KEY, O. J.

R. B. McCarty brought this suit against D. F. Gray and Barney Tread-way. The plaintiff alleged in his petition that the defendant Gray executed and delivered to him certain promissory notes, secured by a chattel mortgage executed by Gray upon two mules. It was also alleged in his petition that the defendant Treadway was in possession of the mules, asserting some sort of title thereto. The defendant Treadway filed an answer, which included a general denial and a special plea alleging that he had bought the mules from his co-defendant, Gray, and that before he purchased them the plaintiff agreed to release them from his mortgage. The defendant Gray filed no answer.

There was a trial, which resulted in a verdict and judgment in favor of the defendant Treadway as to the controversy between him and the plaintiff; but the judgment does not even remotely refer to the defendant Gray, and makes no disposition of the case as between the plaintiff and him. The statute fixing the jurisdiction of this court authorizes appeals from final judgments only, and it is well settled that, when a judgment does not dispose of all the parties and the entire subject-matter of the litigation, it is not a final judgment, and that when such is the condition of the record the appeal should be dismissed. Martin v. Crow, 28 Tex. 614; Simpson v. Bennett, 42 Tex. 241; Linn v. Arambould, 55 Tex. 611; Mignon v. Brinson, 74 Tex. 18, 11 S. W. 903; Mills v. Paul, 1 Tex. Civ. App. 419, 23 S. W. 189; Davis v. Martin, 15 Tex. Civ. App. 62, 53 S. W. 599. Hence we hold that this court has no jurisdiction of this appeal, and that the same must be dismissed. If the parties or the court below are in any doubt as to the status of the ease, and what should be done with it, they are referred to the opinion of the Supreme Court in Linn v. Arambould, supra.

Appeal dismissed.


author: RICE, J.

text:
    BROWNE et al. v. INTERNATIONAL & G. N. RY. CO.
    (Court of Civil Appeals of Texas. Austin.
    May 28, 1913.
    Rehearing Denied July 5, 1913.)
    Appeal and Erroe (§ 80) — Judgment Ap-pealable-Final Judgment.
    Where a receiver for a railroad company originally filed a suit, though the railroad company afterwards filed an amended petition, alleging that it. had acquired the claim sued on by assignment from the receiver, and there was no ord.er permitting the holder to be substituted as plaintiff, a judgment which did not dispose of the receiver’s interest in the claim was not final, so as to be appealable; nor was it final and' appealable, where it did not dispose of either of two defendants.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 429, 432, 433-450, 456, 457, 494-509 ; Dec. Dig. <j 80.]
    Appeal from District Court, Comal County; Frank S. Roberts, Judge.
    Action by the International & Great Northern Railway Company against E. P. Browne and others. From a judgment for plaintiff, defendants appeal.
    Appeal dismissed.
    Mangum & Townsend, of' San Antonio, for appellants. Fisher & Fisher, of Austin, for appellee.

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

   RICE, J.

This suit was originally brought by Thos. J. Freeman, as receiver of the International & Great Northern Railroad Company, on the 9th of August, 1911, against Jacob, Ferdinand, and Gregor Friesenhahn, composing the firm of Friesenhahn Bros,, John Burrage, as a member of the Collin County Grain Company, a partnership, and C. Y. and E. P.- Browne, as members of the Browne Grain Company, a partnership, to recover the value of two certain cars of corn, alleged to have been fraudulently converted by defendants, which cars were shipped by Davis & Seharff, of Jenerette, La., on the 4th of October, 1910, to E. B. Bayard, at Corbyn, Tex., which was duly covered by bills of lading; that no one was rightfully entitled to the possession thereof, except the original consignee or consignor, or some person holding legal title thereto under them; that said Collin County Grain Company, or some member of said firm, without lawful authority, and for the purpose of gaining possession of said cars, issued certain orders, addressed to said receiver, to the effect that they were the lawful owners of said corn, and which orders were indorsed by the Browne Grain Company and directed to the agent of said receiver at New Braunfels, Tex., directing him to deliver to the holder thereof each of said cars, and said corn was thereafter sold by said Collin County Grain Company or Browne Grain Company to their codefend-ants Friesenhahn Bros., to whom the same was delivered by said receiver, with the knowledge on their part that their said vend- or had no legal right or title thereto; that said plaintiff, believing that said persons were the lawful owners of said corn, delivered the same upon demand to the said Friesen-hahn Bros., who were not lawfully entitled thereto; that by reason thereof plaintiff was compelled to pay, and did pay, to the consignors of said corn, the value thereof, wherefore he is entitled to recover from said defendants the amount so paid out.

Defendants, having been duly cited, answered to the merits at the September term, 1911. Thereafter, in vacation, on the 19th of August, 1912, the International & Great Northern Railway Company filed what is denominated a “first amended original petition,” complaining of the same parties, setting up, in addition to the identical cause of action set out in the original petition, the conversion by said defendants of another car of corn shipped by W. L. Harris, of Inola, Ohl., on the 15th October, 1910, to his order at Corbyn, Tex., covered by bill of lading, 'the possession of which was thereafter secured from said receiver by Priesenhahn Bros, by means of a similar fraudulent order, issued by their codefendants, addressed to said receiver, the value of which corn said receiver was likewise compelled to pay. It was further alleged therein that said International & Great Northern Railway Company, by virtue of certain deeds and assignments, became the legal owner and holder of the properties, franchises, and assets of the International & Great Northern Railway Company, and of all causes of action or claims which accrued to it and to the receiver of said company, and particularly those which accrued to said receiver against the above-named defendants in this case, praying for process and judgment against said defendants for its debt, interest, and costs of suit, etc.

Citation was duly issued and service had upon all said defendants, including the Collin County Grain Company and the Browne Grain Company, in time for the succeeding September term of said court, and at said term, judgment was rendered in favor of said International & Great Northern Railway Company against John Burrage, C. V. Browne, and E. P. Browne jointly and severally, who, though duly cited, failed to appear therein and answer, either in person or by attorney; said judgment against them being for the sum of $1,224.72, with interest and costs, and in favor of Priesenhahn Bros. No disposition, however, was made therein of the other parties to said suit, to wit, Thomas J. Freeman, receiver of said railroad company, or of either the Collin County Grain Company or the Browne Grain Company. In this connection, however, it may be observed that there is a recital in said judgment to the effect that the International & Great Northern Railway Company, upon proper suggestion, had theretofore been made a party plaintiff therein. This recital did not dispose of the original plaintiff, Thomas J. Freeman, receiver; nor was it equivalent to saying that the railway company had been substituted as plaintiff in his stead. Within due time motion for new trial was filed by Burrage and the Brownes, joined by the Browne Grain Company and the Collin County Grain Company, challenging the correctness of said judgment for various reasons, amongst others that it was not a final judgment, in that it did not dispose of all the parties to said suit, nor the issues therein, setting up an excuse for their failure to defend the suit, and stating that they had a meritorious defense thereto. This motion being overruled, they prosecute their appeal therefrom.

Though many errors have been assigned, siome of which present interesting questions of practice, it will only be necessary, in our judgment, to discuss that assignment urging that said judgment was not final, since this involves the jurisdiction of this .court to entertain this appeal. Appeals to this court can only be taken from final judgments. R. S. 1911, art. 2078. It is unquestionably true that a judgment which fails to dispose of all the issues and parties to a suit is not final. See opinion of Mr. Chief Justice Key in McCarty v. Gray, 158 S. W. 1154, this day decided by this court, and authorities therein cited, as well as the recent cases of Farmers’ & Mechanics’ Nat. Bank of Ft. Worth v. First State Bank of Bangs, 152 S. W. 499, and Hamilton v. Cage, 151 S. W. 894. Thomas J. Freeman, as receiver, filed this suit; and notwithstanding the fact that the International & Great Northern Railway Company filed an amendment, alleging that it had become the legal owner and holder of this claim by assignment from said receiver, nevertheless it became necessary to dispose of him as such receiver and his interest therein, and without doing so no final judgment could be rendered. There was no order entered allowing or permitting said railway company to be substituted as plaintiff in lieu of Thos. J. Freeman, receiver. Again, the Browne Grain Company and the Collin County Grain Company were likewise parties defendant. The record fails to show any disposition made as to them, or either of them, without which the judgment rendered is not final.

For the reasons stated, it becomes our duty to dismiss this appeal; and it is so ordered.

Appeal dismissed.


author: HODGES, J.

text:
    BARTLEY et al. v. MARINO.
    (Court of Civil Appeals of Texas. Texarkana.
    June 26, 1913.
    Rehearing Denied July 5, 1913.)
    1. Damages (§ 143) — Personal Injuries— Petition — Allegations oe Injuries — Sufficiency.
    The petition, in an'action for personal injuries, which alleges that plaintiff’s skull was fractured, that bones, muscles, and tissues of the head were bruised and injured, that plaintiff was injured in Ms nervous system and internally, causing profuse bleeding from the ears, nose, and mouth, that his eyesight was almost entirely destroyed, and that an internal injury to the ear and the drum thereof practically destroyed his hearing, and that he suffered a loss of speech and an impairment of mind, sufficiently specifies the injuries as against special exceptions, based on the ground that allegations as to injuries were not sufficiently specific.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 410, 433; Dec. Dig. § 143.]

      2. Municipal Corporations (§ 705) — Use op Streets — Negligence—Contributory Negligence.
    One may alight from a wagon in the center of a street, and some distance from a crossing, and go to either side, exercising proper care for his own safety, and an operator of an automobile owes him the duty of exercising' ordinary care to avoid colliding with him.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 1515-1517; Dec. Dig. § 705.]
    S. Municipal Corporations (§ 706) — Streets — Collisions — Evidence — Instructions.
    Where, in an action for injuries to a pedestrian, struck by an automobile, there was evidence that the automobile was operated at a speed in excess of that fixed by a municipal ordinance, and that that was the direct cause of the accident, and contributory negligence was not pleaded, a charge that, unless the operator of the automobile was guilty of negligence proximately causing the injury, there could be no recovery, or if the pedestrian was guilty of contributory negligence, or if his injuries resulted from unavoidable accident, there could be no recovery, was sufficiently favorable to defendants.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 1518; Dec. Dig. § 706.]
    4. Trial (§ 251) — Instructions—Requisites —Issues.
    An instruction on contributory negligence, correct in form, is properly refused, where contributory negligence is not pleaded.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 587-595; Dec. Dig. § 251.]
    5. Municipal Corporations (§ 706) — Streets — Collisions — Negligence — Evidence.
    Where there was evidence that the operator of an automobile, striking a pedestrian on the street, negligently ran his car at a speed in excess of the limit fixed by city ordinance, and at a rate that was unreasonable and dangerous in view of the travel on the street, a peremptory instruction to find for defendant on the ground that the collision was the result of an unavoidable accident was properly refused.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 1518; Dee. Dig. § 706.]
    Appeal from District Court, Dallas County; E. B. Muse, Judge.
    Action by Stephen Marino, by next friend, against S. E. Bartley and another. From a judgment for plaintiff, defendants appeal.
    Affirmed.
    Harry P. Lawther, of Dallas, for appellants. Wilson & Williamson, of Dallas, for appellee.

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

   HODGES, J.

On July 26, 1911, Stephen Marino, a boy about 10 years of age, was injured by a collision with an automobile owned by S. E. Bartley, and operated at the time by an employé, W. P. Reeves. Some time afterward Joe Marino, father of the minor, as next friend, instituted this suit against both Bartley and Reeves, and recovered a judgment in the court below for the sum of $2,500. The petition charged negligence on the part of Reeves in the operation of the automobile, alleging that, at the time the accident occurred, the ear was being driven at a rapid rate of speed in excess of 12 miles per hour, the speed limit fixed by an ordinance of the city of Dallas. The injuries claimed are thus set out in the plaintiff’s petition: “(a) His skull was fractured on the right side of. the head about an inch above the ear; said fracture being about two inchr es square in space if same were squared, (b) His skull was fractured for a distance of four inches, leading from the square part up near the center of the head, ranging backward to the lower part of same, (e) The bones of the head were crushed, broken, and fractured, and the muscles and tissues of the head were crushed, bruised, stretched, and strained, and otherwise injured in like character, and he was also injured ih his nervous system, and internally, from which injuries he bled profusely from his ears, nose, and mouth, which hemorrhages continued for some time, (d) Plaintiff’s eyesight has been almost entirely destroyed; he suffered an injury to his internal ear, and the drum thereof, which has practically destroyed his sense of hearing; he has suffered a total loss of speech; his mind has been impaired, perhaps totally destroyed, by reason of said injuries, and the great and sudden shock to his nervous system; his grave and permanent internal injuries, eruptions of blood vessels, and injury to the secretive organs of his body, the hemorrhages, mucus matter that flowed from his ear — by reason of all of which, the inner and outer tissues of his injured parts have become tensed, strained so that the locomotion of his body, head, and neck has been greatly and permanently impaired; that the plaintiff has unnatural sensations and nervous rigors, hallucinations, and is given to sudden fits a'nd starts as his fancies come and go, and that he had sustained a loss of mental power and of the will by reason of said injuries, and thereby has become and has been rendered a cripple for life.”

The first two errors assigned complain of the refusal of the court to sustain special exceptions based upon the objection that certain allegations as to injuries received were not sufficiently specific. All of the evidence adduced upon the trial as to the extent and character of the injuries inflicted seems to have been admitted without objection, and is ample to warrant the amount of the judgment rendered; in fact there appeared to be no effort to question the nature of the injuries or their extent. We think the court properly overruled the exceptions.

The facts show that the collision occurred about 9 o’clock in the morning on Main street, between Pearl and Preston streets, in the city of Dallas. That section of Main street was then used, by dealers in vegetables and fruits, as a kind of city market, and at that hour of the day, and on that occasion, several huckster wagons were standing on both sides of the street. The center of the street was occupied by the street car track. The street ran east and west. Stephen Marino was seated in a delivery wagon with Clyde Hunt, another boy, and the two were driving along this portion of the street, near the north side, going west. Clyde Hunt was doing the driving. They were returning from another portion of the city, where they had been to deliver some goods, and expected to stop the vehicle at Hunt’s store, which was only a few feet distant from where the accident occurred. Reeves and some friends were in an automobile owned by Bartley, going in the same direction. The automobile approached the wagon from the rear, when the boys arrived at a point not far from the center of the block. Clyde Hunt testified that he intended to stop at his father’s store on the north side, and had turned his horse in that direction; that Stephen Marino was sitting on the seat by his side, and while the wagon was still moving the latter jumped to the ground and started toward the south side of the street to find his father; that Stephen had only time to go three or four steps before he was struck by the automobile, which approached rapidly from the east. He says he discovered the automobile about the time Stephen struck the ground, and that it was then about 25 or 30 feet distant, and was going twice as fast as he (Clyde Hunt) could run, but he was unable to estimate the rate of speed in miles per hour. There was other testimony tending to show that the automobile was, at the time, going at the rate of 25 or 30 miles an hour. Reeves and his companions testified that the car was going at a rate of speed not exceeding eight miles per hour; that as it approached the wagon Reeves' turned to the left and attempted to pass it, and just as the front of his car got even with the rear wheels of the wagon the Marino boy, without giving any warning or notice, jumped to the ground in front of the automobile; that as soon as Reeves discovered the boy’s position, he did everything in his power to stop his car, but was unable to do so before striking the boy. It is admitted that the city of Dallas has an ordinance limiting the speed of automobiles, within the territory where the accident occurred, to 12 miles per hour. The ordinance also requires that “drivers of automobiles shall operate them at no greater rate than is reasonable and proper, having regard to the traffic and use of the street by others, so as to endanger the life or limb of' any person thereon.”

The court gave the following special charge: “The court charges you, at the request of the plaintiff, that the pedestrian has the right to use any part of the public street, including the sidewalk for traveling, and if you believe from a preponderance of the evidence that Stephen Marino got off of the wagon testified about, and undertook to go from the north side of Main street to the south side thereof, traveling in a diagonal direction, that he had the lawful right so to do, and in so doing he also had the right to assume that all persons in charge of automobiles and driving same on and along said street would drive and operate the same in a lawful manner.” This charge is objected to on the ground that it “was inapplicable to the facts of the case, and, under the circumstances, highly prejudicial to the defendants.” In the argument following the above proposition counsel for appellants insists that, inasmuch as the injured boy, when struck, was not using a crossing or sidewalk, but was passing from one side of the street to the other between crossings, Reeves was not required to keep a lookout for the purpose of discovering his presence in the street. It is asserted that no duty on the part of Reeves arose till he actually discovered Stephen Marino, and that the latter was fn danger of being injured. In amplifying the basis of the objection counsel says: “The special charge given at the request of plaintiff was erroneous and highly prejudicial, in that under the circumstances of the case it virtually instructed the jury that the plaintiff had the right to jump from a moving wagon into the middle of the street at the time and place in question, and that, if the driver of the car had been using the street in a lawful manner, the collision would not have occurred.” The wagon in which Stephen Marino was at the time riding was not far from the center of the street. He had the legal right to alight therefrom and go to either side. While he was under the duty of exercising a proper degree of care for his own safety, to be determined by his age and surroundings, he was not a trespasser in the street, and parties operating vehicles owed him the duty of exercising ordinary care to avoid collisions with him. To say that such parties owed no such duty till they actually discovered him on the street would be treating him as an intruder without the legal right to be there. While drivers of vehicles might be expected to use a smaller quantum of diligence ,to discover the presence of pedestrians at such points than would be exacted at public crossings, the degree of care required is the same. Any person lawfully using the highway has a right to assume that others will conform to the legal regulations adopted for their government. No one is bound to anticipate that another will be negligent, or will commit an unlawful act. G., C. & S. F. Ry. Co. v. Holland, 27 Tex. Civ. App. 397, 66 S. W. 68; Ft. W. & D. C. Ry. Co. v. Shetter, 94 Tex. 196, 59 S. W. 533; I. & G. N. Ry. Co. v. Gray, 65 Tex. 32. This special charge did not take from the jury the issue of negligence on the part of Reeves. When considered in its entirety, the charge of the court was much more favorable to the appellants than they had a right to demand. The jury was plainly told, that unless they found that Reeves was guilty of negligence which proximately caused the injury, to find for the defendants. They were also instructed that if they believed the plaintiff was guilty of contributory negligence, or that his injuries were the result of an unavoidable accident, to find for the defendants. Considering the fact that contributory negligence was not pleaded, and that there was ample evidence tending to show that Reeves was running his ear at an unlawful rate of speed, and that this was the direct cause of the accident, there is nothing in the charge complained of that was calculated to mislead the jury.

The fourth and fifth assignments of error complain of the refusal of the court to give special instructions regarding contributory negligence on the part of Stephen Marino in attempting to cross the street at the time and under the circumstances he did. Even if these instructions were in form correct, and that issue had not been already fully presented in the general charge of the court, they might have been properly refused, because contributory negligence was not pleaded. Lewis v. Ry. Co., 57 Tex. Civ. App. 585, 122 S. W. 605.

The last assignment of error is based upon the refusal of the court to give a peremptory instruction for the appellants upon the ground that the undisputed evidence showed that the collision was the result of an unavoidable accident. We do not so view the evidence. If that offered by the appellee is to be accepted, Reeves was, at the time, guilty of negligently running his car at not only a rate of speed in excess of the limit fixed by the city ordinance, but a rate that might be considered unreasonable and dangerous upon a public thoroughfare, such as that section of the street is described to be.

The judgment of the district court is affirmed.


author: JENKINS, J.

text:
    CHATTANOOGA ROOFING & FOUNDRY CO. v. VICKREY.
    (Court of Civil Appeals of Texas. Austin.
    May 28, 1913.)
    Sales (§ 384) — Construction—Price.
    Where plaintiff on January 18th offered to furnish ironwork for a gross sum, and cornice without covers at $1.50 per foot, and defendant accepted the bid for the ironwork, and plaintiff on February 15th offered cornice with covers at $1.80 per foot, which defendant accepted, with direction to ship at once, and plaintiff immediately began to manufacture the cornice, plaintiff, in a suit to recover the difference between the contract price and the proceeds of the manufactured cornice on a sale at auction after defendant had canceled the order and declined to accept it at any price, if entitled to damages, was entitled thereto on the basis of $1.80 per foot.
    [Ed. Note. — For other eases, see Sales, Cent. Dig. §§ 1098-1107; Dec. Dig. § 384.]
    Appeal from San Saba County Court; J. T. Hartley, Judge.
    Action by the Chattanooga Roofing & Foundry Co. against W. R. Vickrey, with cross-action by plaintiff. From a judgment that plaintiff take nothing by its action, and defendant take nothing by his cross-action, plaintiff appeals.
    Reversed and remanded.
    Walker & Burleson, of San Saba, for appellant. G. A. Walters, of San Saba, for appel-lee.

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

   JENKINS, J.

Appellee is a contractor, and in January, 1912, was figuring with E. E. Coolidge, state agent of appellant, on the ironwork, roofing, cornice, and lintel of a building' which appellee was erecting. On the 18th of January appellant wired its said agent that it would furnish the ironwork complete for $1,820, cornice at $1.50 per foot; however, said agent was not authorized to contract, except subject to approval of appellant, it being understood that he would send the plans and specifications to appellant to check up his estimate of material needed. This was done, and on January 23d, appellant wired appellee that they had checked up plans and specifications, and would charge $1,920 for the ironwork. On same day ap-pellee wired that he would accept appellant’s bid, which was made on the entire job. On February 15th appellee wrote appellant asking for prices on lintel course, main cornice with covers, and metal ceiling. On February 21st appellant wired price of cornice $1.80 a foot, and also prices on lintel and metal ceiling. On February 26th appel-lee wired: “Ship cornice immediately, ceiling to follow.” On the same day appellant wired confirmation of bid; and on the next day wrote a letter confirming said bid, stating that the order had been entered upon the books. On March 2d appellee wired to cancel order for cornice and ceiling. On the 4th of March, appellant wired cancellation came too late; that cornice was being manufactured. There were several telegrams and letters passed between the parties after this, in which appellee sought to cancel the order, and appellant insisted that the order for cancellation came too late. On March 18th ap-pellee wrote that, in making the order of February 26th, appellee understood that he was to have the cornice at $1.50 per foot, as per prices furnished appellant’s state agent on January 18th. To this letter appellant replied that the proposition of January 18th was for cornice without covers, and that the bid requested and accepted on the 26th was for cornice with covers complete, and that as his proposition of January 18th was rejected by appellee, it had nothing to do with their subsequent negotiations. On March 6th appellee wired that he would not accept at any price. Subsequently appellant gave appellee notice that the cornice had been completed on his special order, and was useless, except for scrap iron, and that the same would be sold at public auction on a date named. This was subsequently done, and appellant instituted this suit to recover the difference between the contract price and the amount for which the cornice was sold at public auction. Appellee filed cross-action to recover damages for failure to furnish the cornice at $1.50 per foot. Appellant canceled the order for ceiling when first requested to do so. There was a trial by jury, and verdict returned that appellant take nothing by its suit, and that appellee take nothing on his cross-action.

It is the contention of appellee that the contract of purchase was based on the figures furnished appellant’s state agent on January 18th. The contract between the parties is in writing, evidenced by their telegrams and letters, and these instruments show that the contract price was $1.80 per foot. Had appellant objected to the testimony as to the transaction in January, such objection should have been sustained; or, at least, after all of the testimony was in, appellant would have been entitled to have had it stricken out on motion. Even though such testimony was admitted without objection, and there was no motion to strike same out, the court should have instructed the jury to base their verdict solely upon the contract for $1.80 per foot; and if upon another trial appellant shows that it complied with the contract, it will be entitled to judgment for its damages, if any, based on said contract price.

Eor the reasons above given, this case is reversed and remanded for another trial, in accordance with this opinion.

Reversed and remanded.


text:
    VICKREY v. DOCKRAY et al.
    (Court of Civil Appeals of Texas. Austin.
    June 4, 1913.)
    1. Pleading (§ 228) — Exception— Supficen-cy — Rule of Court.
    A special exception, which does not comply with district court rule 18 (142 S. W. xviii), declaring that a special exception shall not only point out the particular pleading excepted to, but shall also point out the insufficiency in its allegations, will be regarded as a general demurrer.
    [Ed. Note. — Eor other cases, see Pleading, Cent. .Dig. §§ 584-590; Dee. Dig. § 228.]
    2. Pleading (§ 205) — General Demurrer.
    In an action on a note and to foreclose a mechanic’s lien, an answer, denying that plaintiff complied with his building contract, and alleging partial failure of consideration of the note in different respects, specifically setting out the items of such failure and the amounts thereof, was good as against a general demurrer.
    [Ed. Note. — Eor other cases, see Pleading, Cent. Dig. §§ 491-493, 495, 496, 498-510; Dec. Dig. § 205.]
    3. Appeal and Error (§ 742) — Assignments op Error — Propositions.
    While an assignment may include several propositions of law, a group of five assignments followed by only one proposition, which undertakes to present five separate questions of law, violates the express provision off rule SO for Courts of Civil Appeals (142 S. W. xiii).
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.*]
    4. Trial (§ 295) — Charge Construed as a Whole.
    A charge must be construed as a whole.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 703-717; Dec. Dig. § 295.]
    5. Appeal and Error (§ 1001) — Review-Question op Fact.
    The sufficiency of the evidence is a question for the jury in the trial court.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3922, 3928-3934; Dec. Dig., § 1001.]
    Appeal from District Court, San. Saba County; Clarence Martin, Judge.
    Action by W. R. Vickrey against A. R. Dockray and others. Judgment for plaintiff, and he appeals.
    Affirmed.
    G. A. Walters, of San Saba, for appellant. J?. M. Faver, of San Saba, for appellees.

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

   RICE, J.

On the 8th of November, 1911, appellees, A. R. Dockray and wife, Maggie Dockray, being desirous of erecting a dwelling house upon their lot in San Saba, Tex., entered into a contract with appellant, W. R. Vickrey, whereby the latter obligated himself to construct said building in accordance with certain plans and specifications thereto attached, the said Dockray and wife at the same time giving to him a mechanic’s, ma-terialman’s and contractor’s lien upon such lot and contemplated building, to secure the payment of their certain promissory note for the sum of $1,475, due and payable on or before February 1, 1912, with 10 per cent, interest from maturity and 10 per cent, attorney’s fees. This action is brought to enforce the collection thereof, less certain admitted credits, and to recover a small balance for extra work under said contract, and foreclosure of said mechanic's lien. After general and special exceptions and general denial, appellees specially denied that appellant complied with said building contract, alleging partial failure of consideration of said note and contract in 11 different respects, specifically setting out the items of such failure and the amounts thereof, which plea was duly verified. By supplemental petition appellant filed a general exception, and what he termed a “special exception” to said special answer. A jury trial resulted in a verdict and judgment in behalf of appellant for the sum of $575, with interest and attorney’s fees and foreclosure of mechanic’s lien, from which judgment appellant has prosecuted this apeal, urging, first, that the court erred in overruling his special exceptions to defendant’s plea of failure of consideration.

This exception, however, cannot be regarded as anything more than a general demurrer, in that it failed to comply with district court rule No. 18. See 142 S. W. p. xviii. This rule declares that: “A special exception shall not only point out the particular pleading excepted to, but shall also point out intelligibly the obscurity, duplicity, generality or other insufficiency in the allegations in the pleadings objected to. The general expression that it is vague, uncertain and the like alone shall be regarded as no more than a general exception.” This exception did not conform to said rule. See Southwestern Telegraph & Telephone Co. v. Luckie, 153 S. W. 1158. The answer was not subject to a general demurrer, and we are inclined to think it would have been good, even as against a special exception presenting the objections sought to be maintained against it. We therefore overrule the first and second assignments of error.

It is questionable whether appellant’s third, fourth, fifth, sixth, seventh, and eighth assignments of error, complaining of the admission of certain testimony over his objection, are not objectionable as being multifarious under the rules; but overlooking, however, this feature, they are followed by only one proposition, which undertakes to present five separate and distinct questions of law, which is clearly violative of the rules forbidding two or more questions to be presented in one proposition. While an assignment may include several propositions of law, these must be presented by separate and distinct propositions. See rule 30 for the government of this court (142 S. W. xiii), and Mutual Life Ins. Co. v. Ford, 130 S. W. 769. Aside from this, we are inclined to believe that there is no merit in these assignments, and that the evidence was properly admitted under the pleadings.

There might be some force in the objection that the charge was so general as to permit a recovery in behalf of appellees if the building was in any respect deficient, were it not for the fact that the court expressly limited appellees’ recovery to the items of damage raised by their plea of failure of consideration. A charge must be construed as a whole, and when so considered, the jury could not have been misl d by it, for which reason the ninth assignment, complaining of this matter, is overruled.

The tenth assignment complains of the insufficiency of the evidence to support the verdict. This was a question for the jury.

Finding no error in the proceedings of the trial court, its judgment is affirmed.

Affirmed.


author: SPEER, J.

text:
    WICHITA FALLS MOTOR CO. v. BRIDGE.
    (Court of Civil Appeals of Texas. Ft. Worth.
    May 10, 1913.
    Rehearing Denied June 7, 1913.)
    1.Masteb and Servant (§ 218) — Injuries to Servant — Assumption oe Risk — Inexperienced Servant.
    Where an inexperienced employs was injured by his hands being thrown against the knives of a defective machine by the jerking of a timber which he was holding in the machine, the fact that he knew he would be injured if his hands came in contact with the knives does not establish assumption of risk on his part, since he may not have known that they would be brought into contact with the knives by the jerking of the timber.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 601-609; Dec. Dig. § 218.]
    2. Triad (§ 191) — Instructions — Assumption as to Facts.
    In an action for such injuries, an instruction which assumed that the employé knew of the danger in operating the machine was misleading.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 420-431, 435; Dec. Dig. § 191.]
    3. Triad (§ 260) — Instructions Covered by Charge.
    A requested instruction as to assumption of risk need not be given, where that issue is fairly submitted by the court’s charge.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.]
    4. Master and Servant (§ 217*) — Injuries to Servant — Assumption op Risk — Knowd-edge of Danger.
    An employs does not assume the risk of all danger incident to his employment, simply because he knew that there was some danger connected therewith.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 574-600; Dec. Dig. § 217.]
    5. Master and Servant (§ 217) — Injuries to Servant — Assumption of Risk.
    The law does not require a servant to exercise ordinary care and diligence in ascertaining the danger incident to the work he is performing, but holds that he assumed the risk only of the danger which he knew or would have known by the exercise of ordinary care in the discharge of his duties.
    [Ed. Note. — For other cases, see 'Master and Servant, Cent. Dig. §§ 574-600; Dec. Dig. § 217.]
    6. Master and Servant (§ 296) — Harmdess Error — Instructions—Triviad Error.
    An instruction as to the contributory negligence of a servant, which required the jury to find the master guilty of negligence before they could find contributory negligence, is not prejudicial; since the question of contributory negligence is not material unless there was negligence on the part of the master.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1180-1194; Dec. Dig. § 296.]
    Error to District Court, Wichita County; P. A. Martin, Judge.
    Action by W. L. Bridge against the Wichita Falls -Motor Company. Judgment for plaintiff, and defendant brings error.
    Affirmed.
    Huff & Bullington, of Wichita Falls, for plaintiff in error. Montgomery & Britain, of Wichita Falls, for defendant in error.

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

   SPEER, J.

The Wichita Falls Motor Company seeks by this appeal to reverse a judgment recovered against it by W. >L. Bridge for the sum of $1,500 for personal injuries.

Plaintiff alleged in his petition that he was employed by the defendant as a wood worker a'nd builder of automobile bodies, and that while engaged in sucb service be was directed by the defendant’s foreman, under whom he was serving, to use a certain machine known as a “jointer,” which is described in the pleadings, and that such machine was old and out of repair and in an unsafe and dangerous condition; that he had little experience in work of this kind, and without negligence upon his part, while using the machine in an attempt to prepare a piece of timber by passing the same over the rapidly revolving knives of the jointer, the timber was suddenly jerked, causing his hand to be thrown against the knives, cutting off two of his fingers. The negligence relied on was that defendant failed to provide plaintiff a safe place to work, failed to furnish him a reasonably safe machine with which to work, but negligently supplied a second-hand machine not equipped with guards to cover those parts of the knives which were not being used. He further alleged that, notwithstanding his inexperience in the use and operation of the jointer, the defendant negligently failed to warn him of the danger there was in connection .with the work. The answer consisted of a general denial, pleas of contributory negligence and assumed risk.

Omitting formal parts, the charge is as follows:

“(2) The defendant is not an insurer of the safety of its employés, but it was the duty of the defendant, the Wichita Palls Motor Company, to use ordinary care to provide plaintiff, Bridge, with reasonably safe machinery with which to work, and if for any reason the jointer at which the plaintiff worked was a dangerous machine and the plaintiff was inexperienced and unfamiliar with such machinery and the dangers incident thereto, then it was the duty of the defendant to use ordinary care to warn plaintiff of such dangers as the defendant knew or might have known by the use of ordinary care and instruct him in the use of such machine, unless such' dangers were obvious to one of plaintiff’s experience, or were known to the plaintiff prior to his injury.
“(3) If you believe from the evidence before you that the plaintiff was injured as charged in his petition, and if you believe that the machine on which he was injured was not furnished with a guard and was dangerous, and if you believe that the danger was known to the defendant and its agents, or could have been known by the use of ordinary care, and if you believe that the defendant, its agents and employés, failed to warn the plaintiff of such dangers, and if you further believe that the plaintiff was inexperienced in the use of such machine and did not know of the dangers incident to its use, and if you believe that requiring plaintiff to use such machine in the condition-it was in and under the circumstances in which he was required to use such machine was negligence as that term has been defined to you, or if you believe that the failure to warn plaintiff as to dangers, if defendant did fail to warn him, and if you believe that such negligence in either event was the proximate cause of the injury, then you will find for the plaintiff, unless you find for the defendant, under some other charge given you.
“(4) Contributory negligence is such an act or omission upon the part of the plaintiff amounting to a want of ordinary care and prudence, as, concurring or co-operating with some negligent act of the defendant, is the proximate cause or occasion of the injury complained of. Therefore, if you believe from the evidence that the plaintiff was himself guilty- in the manner and under the circumstances that you find that he received the injury complained of, and that such negligence, if any, on his part, proximately caused or contributed to the plaintiff’s injury, then you should find for the defendant.
“(5) An employs assumes such risks as are ordinarily incident to the services he undertakes and such others as he knows of, or by observation in the discharge of his duties would have known of. But the negligence of the employer is not one of the assumed risks, unless the employer knows of such increased risk, or by ordinary care in the discharge of his duties would have known of it. If, with this explanation, the jury believe that the alleged defect or danger complained of by him with reference to the jointer was a risk assumed by him, or, in other words, that such defect or danger was a risk ordinarily incident to his services or one of which he knew, of b.v the exercise of ordinary care in the discharge of his duties would have known, then he cannot recover. But in determining this matter you may take into consideration whether the plaintiff was experienced or inexperienced in the use of the jointer machine.”

The major portion of plaintiff in error’s brief is taken up with the proposition that the court should have given a summary instruction to find for it on the facts. It would be a profitless task to set forth all the evidence bearing upon this issue; but we content ourselves with announcing the conclusion that the evidence introduced by defendant in error was sufficient to support the judgment affirming his allegations of negligence on the part of plaintiff in error in furnishing him a defective machine and in ■failing to warn him of the dangers incident to its use, and that defendant in error’s pleas of assumed risk and contributory negligence were not established.

Upon the issue of assumed risk we might add that, while defendant in error necessarily knew that if his hands came in contact with the rapidly revolving knives, which were in plain view of him, he would receive a serious injury, yet it does not follow from this that lie would know, inexperienced as lie was, that his hands would he thrown into the knives in the manner they were. He testified that he did not expect such a thing, and the very nature of the occurrence seems to confirm the truth of his testimony. At all events, the verdict of the jury is supported in the evidence. The principles of law involved are not controverted and are too well known to admit of the multiplication of authorities.

Special charge No. 8, which the court refused, would have been misleading if given, in that it appears to assume that defendant in error knew the danger and extent thereof of operating the defective jointer.

Besides, the issue of assumed risk was fairly submitted under paragraph 6 of the charge above quoted. The same criticism may be made of special charge No. 9. It assumed that defendant in error allowed his fingers to slip off the timber he was pushing across the machine; whereas, his testimony was that his hand was knocked into the machine by the kicking of the board he was holding. Furthermore, this issue was fairly submitted in paragraph 4 of the charge above quoted.

Special charge No. 5 is not an accurate statement of the law as applied to the facts of this case. It was as follows: “If you find and believe from the testimony that the plaintiff, W. L. Bridge, at the time of his injury knew that the manner in which he handled the piece of timber on said jointer machine was dangerous, or if he must necessarily by exercise of ordinary care during the course of employment have known said fact, then, in that event, the plaintiff, in attempting to place the said piece of timber over the jointer machine in the maner which he did, assumed the risk of being injured thereby, and you will return your verdict for the defendant.”

It has never been held, we believe, that an employs takes all the risk of an injury merely because .he knows, or ought to know, that the work in which he is engaged is dangerous. It is matter of common knowledge that there are thousands of employés daily engaged in operating machinery and otherwise when every one of such employSs knows he is engaged in a dangerous work, yet can it be said that for that reason alone they assume all risks of injury in the service? Such a proposition would imply thgt the employs not only knew there was some danger, but of the full extent thereof, and the requested charge contained this vice. All of the requested charges were properly refused.

The following special charge was given at the request of defendant in error: “Even though you should believe from the evidence that the plaintiff knew the guard was off the jointer and knew that the jointer was in a defective condition by reason of the guard’s being off of said jointer, but' i* you should further believe that the plaintiff by reason of ignorance or inexperience did not appreci-áte the risk and danger of passing the piece of timber over said jointer at the time of his injury, he would not be chargeable with having assumed the risks of such danger.”

The only proposition under the assignment attacking this charge is that it was erroneous “for the reason that the law requires the plaintiff to exercise ordinary care and diligence in ascertaining the dangers incident to the work he is performing.” This is not accurate. The true rule is better presented in the court’s charge on assumed risk, wherein defendant in error was denied a recovery if the risk was the result of a danger “of which he knew or by the exercise of ordinary care in the discharge of his duties' would have known.” The law does not impose upon an •employs the duty “to exercise ordinary care and diligence in ascertaining the dangers incident to the work he is performing,” as plaintiff in error’s charge is written. His duty is to labor—intelligently, of course— but not to search for defects or latent dangers.

The fourth paragraph of the charge submitting the issue of contributory negligence is attacked in the seventh assignment, but the proposition thereunder fails to show in what particular the charge is erroneous. Under the subjoined argument, however, the suggestion is made that under the court’s charge the plaintiff could not be guilty of contributory negligence unless the jury first found that the defendant was negligent. But let it be so. It never becomes necessary in any case to pass upon the plaintiff’s contributory negligence until the jury have first found that the defendant is negligent. So that, no possible harm could have followed if the charge is susceptible of the interpretation contended for. Furthermore, strict accuracy would require that there be a primary, or at least ¿ concurring, cause before another act can contribute to a result. What we have said upon those assignments discussed necessarily disposes of all others adversly to plaintiff in error.

We find no error in the judgment, and it is affirmed.


author: CONNER, C. J.

text:
    ILSENG v. CARTER et al.
    (Court of Civil Appeals of Texas. Ft. Worth.
    April 26, 1913.
    Rehearing Denied June 7, 1913.)
    1. Appeal and Error (§ 601)—Record—Ex-ceptions — Pleadings — Presentation — Bill of Exceptions.
    Under Court of Appeals Rule 53 (102 Tex. xlix, 142 S. W. xxi), prohibiting bills of exception to the judgments of court rendered on matters constituting the record proper in the case, the sustaining of an exception to an allegation in the answer cannot be reviewed, where it is not shown by the record proper, and appears only in the bill of exceptions.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 2300-2305; Dec. Dig. § 501.]
    2. Appeal and Error (§ 1056) — Evidence-Exclusion — Prejudice.
    Where, in a suit for specific performance of a contract for the sale of school lands, defendant claimed false representations as to the location of the land, the exclusion of evidence that he was induced to purchase in part by complainant’s representation that the land .was contiguous to the'lands of C. was not prejudicial to defendant, without evidence that the lands were not in fact so located, and were not substantially of the grade, quality, and location agreed on.
    [Ed. Note. — For other cases, see Appeal and Error. Cent. Dig. §§ 4187-4193, 4207; Dec. Dig. § 1056.]
    3. Vendos and Purchaser (§ 22) — Contract eor the Sale oe Land — Certainty—Description.
    Description of land in a contract of sale as a lot 50 by 110 feet on the north side of Bessie street in the city of Ft. Worth, and being the only new house east of Illinoise street, was not fatally defective for‘uncertainty of description, under the rule that that is certain that may be made certain.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 27; Dec. Dig. § 22.]
    Error ‘to District Court, Tarrant County; W. T. Simmons, Judge.
    Suit by J. C. Carter and another against A. G. Ilseng. Decree for complainants, and defendant brings error.
    Affirmed.
    McLean, Scott & McLean, and C. T. Rowland, all of Ft. Worth, for plaintiff in error. A. J. Clendenen and Theodore Mack, both of Ft. Worth, for defendants in error.

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

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

   CONNER, C. J.

A. G. Ilseng prosecutes a writ of error from a judgment following a peremptory instruction in favor of Jack Carter and C. K. Oldham, specifically enforcing the following written contract: “State of Texas, County of Tarrant. This agreement entered into this the 16th day of January, 1909, between Carter & Oldham, of Fort Worth, Texas, as parties of the first part, and A. G. Ilseng, of Fort Worth, Texas, as party of the second part, to wit: That the parties of the first part for and in consideration of a promissory note executed by the party of the second part for $300.00 at 8% interest, due and payable in one year with the privilege on the part of the party of the second part to pay said note in monthly installments of $50.00 each, and the further consideration that party of the second part is to give a deed of general warranty to an almost new frame residence on- a lot 50 by 110 feet on the north side of Bessie street in the city of Fort Worth, and being the only new house east of Illinoise street. The parties of the first part for the above consideration agree to furnish to the party of the second part an award card for eight sections of school land in El Paso county, and they further agree to assume an $800.00 indebtedness against the above described house and lot. It is agreed by all parties hereto that the deed properly acknowledged, together with the note properly signed shall be put in escrow with the State National Bank until the award card is delivered by the party of the second part, at which time of the said delivery of said award card said Bank is to turn, over to parties of the first part said deed and note to be used as they may see fit and as their individual property. Witness our hands this the 16th day of January, 1909. [Signed] Carter & Oldham, Parlies of the First Part. A. G. Ilseng, Party of the Second Part. Witness: J. B. Royalty.”

In their petition for specific performance Carter & Oldham alleged performance of the contract on their part, and Ilseng in answer, among other things charged that the contract had been induced by false representations as to the quality, character, and relative location of -the eight sections of school land in El Paso county to be awarded by the Commissioner of the General Land Office as contemplated by the contract. And it is first assigned that the court erred in sustaining exceptions to “that portion of defendant’s answer setting up fraudulent representations in reference to the location of the sections of land with reference to each other,” etc. The assignment must be overruled on the ground that the record discloses no order of the court sustaining any exception of the character specified. The record, it is true, contains a bill of exception, which recites that the court erred in sustaining an exception to one of defendants’ allegations relating to the location of the land, but the question cannot be presented in such way as we had occasion to decide in the case of Withers v. Crenshaw, 155 S. W. 1189, in an opinion not yet published, bills of exception being expressly prohibited by rule 53 “to the judgments of the court rendered upon those matters which constitute the record proper in the case.” 102 Tex. xliv, 142 S. W. xxi.

In the second assignment plaintiff in error complains of the court’s action in excluding testimony offered by him to the effect that he was induced in part at least, to execute the contract in question by a representation on the part of one of the defendants in error that the school land to be secured as contemplated in the contract was contiguous to the lands of one Cousin. It appears that the testimony was excluded on the ground that its effect was to vary the terms of the contract. While we are not inclined to agree with the theory upon which the' evidence was apparently excluded, yet upon an examination of the record relating to the matter we fail to see that plaintiff in error was in any way prejudiced by the action complained of. Neither the bill of exception nor the evidence shows that the lands mentioned were not in fact located as sought to be shown, or that, if not, the representation could in any way be material. For aught that appears in the statement of facts the lands awarded pursuant to the contract were substantially of the grade and quality and located as plaintiff in error contends was agreed.

The objection that the description in the contract of the lot owned by plaintiff in error was insufficient to sustain the submission of the issue or verdict for specific performance we think must be overruled. The description in the contract, as may be seen, was “a lot 50 by 110 feet on the north side of Bessie street in the city of Fort Worth and being the only new house east of Illino.ise street.” It is a maxim of law that “Id certum est quod certum reddi po-test,” and nothing appears in either allegation or proof indicating any change in objects called for. The description given, therefore, would clearly enable a precise designation of the lot and house referred to and this is all of certainty required by the law.

What we have said in disposing of the other assignments applies to plaintiff in error’s propositions asserted under the third assignment objecting to the court’s peremptory instruction. That is to say, such instruction cannot be held to be erroneous on the ground that the description in the contract of plaintiff’s lot was insufficient, nor because of the action of the court in sustaining a demurrer to his plea of false representation, nor, in excluding evidence offered on that issue.

The evidence as we find it presents no other or further issue requiring submission to the jury. The contract as alleged was made without dispute, and it also appears to be undisputed that the defendants in error performed and offered to perform their part of the contract. It is true that the award card from the Commissioner of the General Land Office to the eight sections of land in El Paso county was made out in the name of P. B. Shirley, but plaintiff in error, himself, testified that he had so directed P. B. Shirley, being his brother-in-law, with whom, as there is evidence tending to show, he had arranged for the occupancy of the land.

The special charge requested is inapplicable to the evidence as we find it; and, no other question having been presented, it is ordered that all assignments of error be overruled, and the judgment affirmed.


text:
    ALSTON et al. v. PIERSON et al.
    (Court of Civil Appeals of Texas. Ft. Worth.
    May 24, 1913.)
    1. Covenants (§ 14) — Covenant Against Incumbrance — “Grant” — “Convey” — Implied Covenant.
    Where the terms “grant” and “convey” were used as a part of the granting clause of a deed, they implied a covenant on the part of the grantor that the land granted was free from incumbrances as provided by Rev. Civ. St. 1911, art. 1112.
    [Ed. Note. — For other cases, see Covenants, Cent. Dig. § 11; Dec. Dig. §, 14.

    For other definitions, see Words and Phrases, vol. 2, pp. 1570-1575; vol. 4, pp. 3151-3156; vol. 8, pp. 7618, 7674.]
    2. Reformation of Instruments (§ 38)— Mistake — Covenant Against Incum-brances.
    Where, in an action against the makers and indorser of certain notes given for the price of school land conveyéd by the indorser to the makers of the notes, the latter pleaded an unpaid claim of the state which constituted an incumbrance, the indorser’s answer that the makers covenanted to assume and pay such debt, but that the covenant had been omitted from the deed by mistake of the scrivener, was sufficient under the rule that where a mutual mistake is made in drawing an instrument it may be alleged, and if sufficiently proved the instrument may be reformed so as to state the facts and a decree may be rendered thereon accordingly.
    [Ed. Note. — For other cases, see Reformation of Instruments, Cent. Dig. §§ 148-150; Dec. Dig. § 38.]
    3. Evidence (§ 419) — Parol Evidence — Written Contracts — Deeds.
    Evidence that grantees of certain school lands agreed to assume and pay an indebtedness to the state constituting a superior lien on the land, though such agreement was omitted from the deed by mistake, was admissible to explain the consideration for the deed independent of the issue of mistake.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1912-1928; Dec. Dig. § 419.]
    4. Witnesses (§ 379) — Contradiction—Eix Parte Declaration.
    In an action on notes given for the price of certain school land, defendant having pleaded an incumbrance consisting of an existing indebtedness to the state which the grantor claimed the grantee had assumed and agreed to pay, the grantee having testified that he not only had not agreed to pay the debt to the state but did not know of its existence, evidence that, after the sale and prior to the maturity of interest payments to the state, the grantee stated to witness that it would soon be time for him to “dig up” the interest money due the state on the land in question, was admissible not only to show that he knew of the existence of the state’s debt but that he recognized his obligation to pay it.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1209, 1220-1222, 1247-1256; Dec. Dig. § 379.]
    Appeal from District Court, Stonewall County; Jno. B. Thomas, Judge.
    Action by Mrs. M. S. Pierson and others against Otis Alston and others. Judgment for plaintiffs, and defendants appeal.
    Affirmed.
    H. H. Sagebiel, of Ganado, for appellants. Ernest Herring and W. J. Arrington, both of Aspermont, for appellees.

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

   CONNER, C. J.

Appellee sued Otis Alston and Durer Alston, as makers, and W. D. Martin, as indorser, of two promissory notes, aggregating, at the date of the judgment, $652.90, given by the Alstons to Martin for a section of state school land in Reeves county. Neither Martin nor the Alstons contested the plaintiff’s right to recover, but the Alstons pleaded over against Martin, alleging that at the time of the purchase they received a regular warranty deed without notice of an indebtedness of $936 due the state of Texas as purchase money which constiiuted a lien on the land, and they prayed for judgment against Martin for the $936 is damages for the breach of the implied covenant against incumbrances. Martin answered that as part of the consideration ?or the land the Alstons assumed and agreed to pay said indebtedness to the state, and that such agreement had been omitted from the recitals of the deed by the mistake of the attorney who drafted it. The trial was before the court without a jury and resulted in a judgment for appellee M. S. Pierson as prayed for by her with a foreclosure of the vendor’s lien on the land mentioned, and also in favor of appellee Martin' as to the cross-action of the appellants Alston.

The deed from Martin to Otis and Durer Alston did not recite as part of the consideration therefor any assumption or agreement on the part' of the Alstons to pay the indebtedness due the state, which without question constitutes a superior lien on the land conveyed; nor was there any express covenant against incumbrance, but as part of its granting clause the terms “grant” and "convey”, were used, which, by force of our statutes on the subject (Revised Statutes, art. 1112), imply a covenant on the part of the grantor that the land granted was free from incumbrances, and appellant’s principal contention on this appeal is that the special answer of appellee Martin to' appellants’ cross-action was demurrable and the evidence in support thereof inadmissible for the reason that both were in opposition to the terms and legal effect of the deed from Martin.

It is clear that the answer was not demurrable, for Martin alleged that the agreement of appellants to pay the debt due the state was omitted from the deed by mistake of the scrivener who wrote it. The rule is well established in equity that, where a mutual mistake is made in drawing an instrument, such mistake may be alleged, and, if sufficiently shown by the evidence, the instrument may be reformed so as to announce the true facts and a decree rendered thereon accordingly. Gammage v. Moore, 42 Tex. 170; Kelley v. Ward, 58 S. W. 207; s. c., 94 Tex. 289, 60 S. W. 311.

Appellee Martin testified specifically that as part of the consideration of the sale the Alstons did assume and agree to pay the state debt as alleged and that the attorney engaged to prepare the deed was so informed and directed to so write the deed, but that he failed to so do. This evidence, regardless of the issue of mistake, was admissible and sustains the court’s judgment on the ground that the consideration of a deed may always be inquired into. See 2 Devlin on Deeds, § 1073; Johnson v. Elmen, 94 Tex. 168, 59 S. W. 253, 52 L. R. A. 162, 86 Am. St. Rep. 845; Boren v. Boren, 29 Tex. Civ. App. 221, 68 S. W. 184. Appellants’ first, second, and fourth assignments of error are, accordingly, overruled.

The only remaining question presented is whether the court properly admitted the testimony of De Etta Martin to the effect that about October 15, 1910, after the sale to the Alstons and prior to the due date in November, 1910, of interest payments to the state on school lands, she heard Otis Alston say “that it would soon be time for him to dig up the interest money due the state on his Reeves county land which he bought from W. D. Martin.” Contrary to appellants’ objection, we think this testimony was relevant as tending to prove that Otis Alston not only knew of the existence of the state’s debt, which he denied, but also recognized his obligation to pay the same.

It follows that the judgment below must be affirmed; but, it appearing that no complaint of the judgment in favor of appellee M. S. Pierson has been or well could be made, it is further ordered that as against appellants the judgment in favor of M. S. Pierson be affirmed with 10 per cent, damages as in such cases is authorized by statute)


text:
    NAIL v. WOLFE CITY NAT. BANK et al.
    (Court of Civil Appeals of Texas. Texarkana.
    June 28, 1913.
    Rehearing Denied July 5, 1913.)
    1. Appeal and Error (§ 873)—Questions Reviewable—Improper Adjudication oe Costs.
    An improper adjudication of costs is substantive error, affecting the principal judgment, and is not merely a collateral matter, to be determined independently of the litigation in which the judgment is rendered.
    [Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 3460, 3461, 3522-3525; Dec. Dig. § 873 ; Costs, Cent. Dig. § 796.]
    2. Appeal and Error (§ 1073)—Taxation-Power oe Court.
    The court awarding costs otherwise than as prescribed by Rev. St. 1895, art. 1436, must, as required by article 1438, state in the record the grounds for its action, and its failure so to do renders the judgment as to costs irregular, necessitating a reversal.
    [Ed. Note.—For other eases, see Appeal and Error, Cent. Dig. §§ 4240-4247; Dec. Dig. § 1073.]
    Appeal from Hunt County Court; Geo. B, Hall, Judge.
    Action by the Wolfe City National Bank against J. H. Nail and others. From so much of the judgment for plaintiff as makes defendant named liable for all costs of both courts, he appeals.
    Reformed and rendered.
    Neyland & Neyland, of Greenville, for appellant. Looney, Clark & Leddy, of Green-ville, for appellees.

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

   HODGES, J.

Cherry & Thomas, a firm of architects who resided in Hunt county, held a claim for $167.25 against J. H. Nail, a resident of Tarrant county. This claim was passed by assignment to the Wolfe City National Bank, and its payment guaranteed- by Cherry & Thomas. When presented to Nail he refused to pay it, and the Wolfe City National Bank instituted this suit against him and Cherry & Thomas in the justice court of Hunt county. A judgment was there rendered in favor of the bank against all the defendants for the full amount sued for, and in favor of Cherry & Thomas over against Nail. An appeal was prosecuted by Nail to the county court, where a judgment for the same amount was rendered in favor of the bank against Cherry & Thomas, but the judgment against Nail was reduced to $114.50. The original judgment rendered in the county court shows that the case was tried before the court without a jury, and that Nail recovered the costs of that court. Subsequently a motion to reform the judgment as to costs was sustained, and Nail was adjudged liable for all costs of both courts. The ruling of the court in reforming the judgment in response to that motion is the only error complained of in the appeal to this court.

Article 1436 of the Revised Civil Statutes of 1895 provides that “in cases of appeal or certiorari taken by the party against whom the judgment was rendered in the court below, if the judgment of the court above be against him, but for a less amount, such party shall recover the costs of the court above, but shall be adjudged to pay the costs of the court below; if the judgment be against him for the same or a greater amount than in the court below the adverse party shall recover the costs of both courts.”. Article 1438 provides that “the court may, for good cause, to be stated on the record, adjudge the costs otherwise than as provided in the preceding articles.” From these provisions of the statute it follows that Nail was entitled, as a matter of law, to recover judgment for all costs in the county court, in the absence of some “good cause" stated “on the record." An improper adjudication of the costs is a substantive error Which affects the principal judgment itself, and is not merely a collateral matter to be determined independently of the litigation in which the judgment is rendered. Parker v. Boyd, 42 S. W. 1031; Sass v. Hirschfeld, 23 Tex. Civ. App. 1, 56 S. W. 602; Hedgecoxe v. Connor, 43 S. W. 322; Smallwood v. Love, 78 S. W. 400. The statement of a “good cause” for adjudicating the costs otherwise than is required by article 1436 of the statute evidently means the entering upon the judgment record the grounds or facts upon which the court bases that particular feature of the judgment. This being a statutory requirement, its omission renders the judgment as to costs irregular, and deprives it on appeal of the benefit of those presumptions usually indulged in support of the correctness of judgments generally. The failure of the court to comply with the statute in this respect requires a reversal of the judgment. Lumpkins v. Williams, 56 Tex. Civ. App. 160, 119 S. W. 917; Railway Company v. King, 57 Tex. Civ. App. 583, 122 S. W. 925; Railway Company v. Duncan, 3 Willson, Civ. Cas. Ct. App. § 235; Pruitt v. Kelly (Tex. App.) 15 S. W. 119; Hotchkiss v. Chevaillier, 12 Tex. 224; Goodwin v. Biddy, 149 S. W. 739; Conner v. Skinner, 156 S. W. 567.

The judgment of the county court will be reformed, and judgment here rendered in favor of Nail, the appellant, for the costs of the county court.


author: WILLSON, C. J.

text:
    LYON-GRAY LUMBER CO. v. DUNBAR.
    (Court of Civil Appeals of Texas. Texarkana.
    June 19, 1913.)
    Appeal from Hunt County Court; Geo. B. Hall, Judge.
    Action by W. O. Dunbar against the Lyon-Gray Lumber Company. From so much of the judgment for defendant on its cross-action as adjudges the costs against it, it appeals.
    Reversed and rendered.
    Clark & Leddy, of Greenville, for appellant. Thompson & Manning, of Greenville, for ap-pellee.
   WILLSON, C. J.

By its suit against appel-lee, cómmenced in a justice court, appellant sought a recovery of $92.80 it claimed appellee owed it. By his cross-action in that suit ap-pellee sought a recovery of $150 against appellant. The trial in that court resulted in a judgment in appellee’s favor for $10 and costs. Appellant prosecuted an appeal to the county court, and there, on October 14, 1912, recovered judgment against appellee for $55 and the costs of both courts. Afterwards, on motion of ap-pellee, the judgment rendered by the county court was so reformed as to adjudge the costs of that court against appellant. The reason why the court thought the costs ought to be otherwise adjudged than as provided for by the statute (article 2047, R. S. 1911) was not stated on the record, as required by article 2048, R. S. 1911. Therefore the judgment of the county court as reformed by it must be reversed (Nail v. Wolfe City National Bank, 158 S. W. 1166, decided to-day by this court). Judgment will be here rendered that appellant recover of appellee the sum of $55, interest thereon from October 14, 1912, and the costs of the justice court, the county court, and this court.