author: HIGGINS, J.

text:
    SOUTHWESTERN PORTLAND CEMENT CO. v. GRAVES.
    (No. 912.)
    (Court of Civil Appeals of Texas. El Paso.
    Jan. 23, 1919.
    Rehearing Denied Feb. 20, 1919.)
    1. Evidence <§=>126(1) — Res Gesms — Declarations.
    Statement as to manner in which accident happened, made by deceased about two minutes after the accident, to one coming in response to his shout, held admissible as part of res gestee.
    2. Master and Servant <§=>278(17) — Negligence — Evidence.
    Testimony in action for death of employé held to warrant jury in finding negligent starting of machinery by another employs.
    3. Appeal and Error <§=>1140(1) — Disposition of Cause — Excessive Verdict —Re-mittitur.
    Under Rev. St. art. 1631, the Court of Civil Appeals, when of opinion that verdict is excessive, must indicate the excess, and allow re-mittitur, and not reverse the case.
    4. Death <§=>99(5) — Recovery by Parent — Amount.
    Under evidence as to contributions by deceased 28 years old, to plaintiff, his father, 65 years old, held recovery for his death above $T,-200 was excessive compensation.
    Error from District Court, HI Paso County; P. R. Price, Judge.
    Action by George O. Graves against .the Southwestern Portland Cement Company. Judgment for plaintiff, and defendant brings error.
    Affirmed conditionally.
    Burges & Burges and S. P. Weisiger, all of El Paso, for plaintiff in error.
    Geo. E. Wallace and W. S. Berkshire, both of El Paso, for defendant in error.
   HIGGINS, J.

Prank O. Graves was an employé of plaintiff in error, hereinafter called defendant. Defendant was operating a plant engaged in the manufacture of cement. In the discharge of his duty Graves was engaged in splicing a belt. He was standing near a window on the second floor of the building. Another employé, Valdez, was stationed upon the first floor with instructions from Graves to start the machinery upon a signal from Graves. Valdez testified that Graves told him to start the machinery “when you [Valdez] see my [Graves’] hand sticking- through this hole through which one of the belts passes.” The evidence shows that Valdez started the machinery unexpected by Graves, and the latter was thereby thrown through the window, fell to the ground below, sustaining injuries from which he subsequently died. This suit was brought by George O. Graves, defendant in error, father of deceased, to recover damages for the death of his son. It was alleged that Valdez had negligently started the machinery. Verdict was returned in plaintiff’s favor for $4,300. A remittitur of $1,500 was entered, and judgment rendered for $2,800. Prom this judgment defendant prosecutes this writ of error.

Plaintiff’s witness Henry Otter testified that he was working for defendant at its plant when the deceased was injured; that he heard Graves holler and went to him; that he was the first to reach the injured man, and reached him-about two minutes after he heard his exclamation. He then testified:

“He made a statement to me as to how the accident happened. There are many employés working around there. I had a conversation with him at that time as to how the accident happened. When I got to' him I asked him what happened to him. He told me he was thrown out of the second story; that the Mexican started the motor, and when he started the motor it threw him out of the window. He said he had told the Mexican to go down and get him a skiver to connect the bel.t with; that is like a cat-gut point they use for lacing. He said instead of the Mexican going to get the skiver he went down and turned the machinery on — turned the motor on. He stated what position he occupied when he turned it on; he said he was standing with one foot on the window and one on the shaft, and had the belt in his hands this way, trying to get it together, when he told the Mexican to go get the skiver. That is the time the Mexican started the machinery. I know from this statement and position what window he was at.”

Error is assigned to the admission of the testimony of Otter of the statements made to him hy the deceased as to the manner in which the accident occurred, upon the ground that the same was hearsay and not a part of the res gestae. Upon cross-examination, the witness Otter further testified:

“When I heard this man holler I was working in the stoker in the coal plant. I judge that was about twenty-five feet from where I found him. I wag inside of the plant and he was outside. I went to him immediately.”

In view of the fact that Otter’s testimony shows he was working near the deceased at the time he was injured, went immediately to him, and reached him about two minutes after he heard the deceased holler, we think the evidence was properly admitted. Under the rule announced in this state, the statements made by the deceased to Otter at the time were a part of the res gestse and admissible in evidence. Ry. Co. v. Anderson, 82 Tex. 516, 17 S. W. 1039, 27 Am. St. Rep. 902; Ry. Co. v. Hall, 83 Tex. 675, 19 S. W. 121; Ry. Co. v. Feilder, 163 S. W. 607; Ry. Co. v. Williams, 50 Tex. Civ. App. 134, 109 S. W. 1128; Ry. Co. v. Mitchell, 48 Tex. Civ. App. 381, 107 S. WL 374; Hotel Co. v. Fox, 196 S. W. 652.

It is next assigned as error that a peremptory instruction in defendant’s favor should have been given because there is no evidence proving, or tending to prove, any negligence other than that of the deceased. The statement of the deceased, testified to by Otter, that the Mexican, Valdez, went down and turned the machinery on, instead of getting the skiver, clearly presents an 'issue of negligence upon the part of Valdez. Furthermore, the testimony of Valdez himself shows that he was guilty of negligence. Valdez testified that he and deceased were downstairs, and deceased went upstairs to fix the machinery; that before going deceased told him: “When you see my hand sticking through this hole through which one of the belts pass, why then you can start up the motor.” He further testified:

“I remained down there near the motor, and waited for a signal. I saw the hand after he was upstairs,, after he had gone above. I waited until he got upstairs, and was waiting for the signal, which he told me he would give me, for me to start up the motor at once, because he was in a hurry, and as soon as I saw his hand I turned on the motor slowly. He did not stick his hand through the hole—he held it over the hole, and I saw the hand over the hole from helow. Frank gave me a signal. I started the motor up a little bit after he gave me the signal—almost simultaneously. The kind of signal I saw was the kind of signal Frank told me to act upon when I saw it.”

This testimony of Valdez would have warranted the jury in finding that Valdez started the machinery when he saw Graves’ hand over the hole instead of waiting until Graves stuck his hand through the same. There is therefore testimony presented both by the testimony of Valdez and the declarations made by deceased at the time of the injury, that Valdez had negligently started the machinery without waiting for the receipt of the agreed signal. The court, therefore, did not err in refusing a peremptory instruction in favor of the defendant.

We are urged to reverse this case upon the ground that the verdict of the jury is so grossly excessive in amount as to show bad faith on the part of the jury, which was not cured by the filing of the remittitur, the defendant being entitled to a trial by a fair-minded jury to determine whether or not it was guilty of negligence. In Wilson v. Freeman, 108 Tex. 121, 185 S. W. 993 Ann. Cas. 1918D, 1203, the Supreme Court held that article 1631, R. S., is mandatory in its requirement that, when a verdict is excessive, it is the duty of the Court of Civil Appeals to indicate the amount of the excess and to allow a remittitur thereof, and that the latter court should not reverse a case upon the ground alone that the verdict is excessive. Upon the authority of that case, it follows that this assignment must be overruled in so far as it seeks an absolute reversal of the case.

The remaining assignment also complains of the excessiveness of the verdict, and it is sustained to the extent of requiring a remittitur as hereinafter indicated.

The evidence discloses that plaintiff was 65 years of age at the date of trial. The deceased was 28 years of age at the time of his death. Plaintiff is a pumper for the Southwestern Railway Company, earning $75 a month, and is furnished a house in which to life by his employers. Plaintiff’s wife died several years before. The deceased, at the time of his death, was earning $3.50 or $4 per day. The testimony shows that, when the mother of deceased and wife of plaintiff died, the deceased paid his mother’s funeral expenses and hospital bills. Plaintiff testified that deceased furnished him $300 to pay the funeral expenses of the mother and expenses of her last sickness and when she was in the hospital. He testified that deceased would send him money every once in a while; that the first year he sent him $20, and on several times sent $40; that he sent $40 two or three times—not over three times; sent $20 not of tener than three times; sent him $5 a number of times. It is not clear from the evidence just how much the deceased had contributed to the plaintiff, but it is quite apparent that he had not contributed more than $500 or $600 in the aggregate, and that this was the aggregate of the contributions of a number of years. In view of this evidence, this court is of the opinion that the judgment of the lower court is still grossly excessive, and that a further remittitur should be required as a condition of affirmance. Taking into consideration the entire testimony of the plaintiff, Graves, bearing upon the issue of his pecuniary loss arising from the death of his son, we think that the sum of $1,200 would amply compensate him. This cause is therefore affirmed upon condition that within 15 days defendant in error file a remittitur in the sum of $1,600, and, if such remittitur be not filed, the cause is reversed and remanded.

Affirmed conditionally.
      <g=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: BROOKE, J. HIGHTOWER, O. J.

license: Public Domain

text:
    MURPHY v. DABNEY.
    (No. 386.)
    (Court of Civil Appeals of Texas. Beaumont.
    Dec. 19, 1918.
    On Motion for Rehearing, Feb. 14, 1919.)
    1. Venue <s=>32 (2) — Privilege oe Defendant — -Waiver.
    Mere entry of rule for costs by trial court, with proviso that it was without prejudice to defendant’s rights with reference to his plea of privilege, was not a waiver of plea of privilege under Acts 35th Leg. c. 176, § 1 (Vernon’s Ann. Civ. St. Supp. 1918, art. 1903).
    2. Pleading <§=110 — Plea of Privilege of Defendant — Absence of Contest.
    Where no affidavit controverting defendant’s plea of privilege under Acts 35th Leg. c. 176, § 1 (Vernon’s Ann. Civ. St. Supp. 1918, art. 1903), was filed, trial court should have promptly granted change of venue; plea being prima facie proof of statements made.
    On Motion for Rehearing.
    3. Pleading <§=>104(2) — Privilege of Defendant — Plea—Necessity for Denial.
    Under Acts 35th Leg. e. 176, § 1 (Vernon’s Ann. Civ. St. Supp. 1918, art. 1903), in suit to foreclose on boiler common-law lien for rent, defendant’s plea of privilege held tantamount to complete and detailed denial under oath of facts in plaintiff’s petition giving him right to sue in county of suit, so that, after filing of such plea, plaintiff was required,' to raise issue of his right to sue in county of suit, to file controverting plea or affidavit, even though repeating jurisdictional facts alleged in petition.
    Appeal from Liberty County Court; C. N. Smith, Judge.
    Suit by J. F. Dabney against A. Murphy. From an order overruling his plea of privilege, defendant appeals.
    Reversed and remanded, with instructions to transfer to another county.
    C. R. Wilson, of Liberty, for appellant.
    H. E. Marshall, of Liberty, for appellee.
   BROOKE, J.

This suit was filed on the 1st day of October, 1917, in the county court of Liberty county, Tex., to foreclose a common-law lien upon a boiler located upon inclosed premises owned and occupied by ap-pellee and in his possession, for a demand or debt for rent arising out of the use of said premises for the location thereon of certain sawmill machinery, Including the boiler sought to be foreclosed upon by appellee. The premises where the boiler was left in appellee’s possession are situated in Liberty county, Tex. The county court of Liberty county, where the suit was filed, convened oh the 21st day of January, 1918, and on the first day of the term appellant filed a plea of privilege, claiming proper venue of the case to be in the county court of San Augustine county, Tex., where he lived. On the 22d day of. January, 1918, appellant verbally ruled appellee for security for costs, and appellee complied with the rule on the 7th day of February, Y918. In taking the order ruling appellee for costs, it was, at the request of appellant, entered “reserving plea of privilege.” The case was called for hearing on the plea of privilege on the 7th day of February, 1918, and the court overruled the plea of privilege on the ground that the same had been waived by the rule for costs, and upon the further ground that the nature of the suit showed that the court had venue of the case. After the court had overruled the plea of privilege, appellee" moved the court to set aside the order so made, and to grant appellant a hearing upon the allegations of his plea of privilege and appellee’s written answer filed. This motion appellant resisted, and the court overruled it. Appellant appealed from the order of the court overruling his plea of privilege.

We are confronted with several propositions that are necessary to be determined in this case. When the appellant, Murphy, appeared in the county court of Liberty county, he did so to file his plea of privilege to be sued in the county in which he lived, which he did on the first day of the term. This was under the act passed by the 35th Legislature, chapter 176, p. 388 (Vernon’s Ann. Civ. St. Supp. 1918, art. 1903), and conforms strictly thereto, which amended the law heretofore governing pleas of like character. Section 1 of this act is as follows;

“A plea of privilege to be sued in the county of one’s residence shall be sufficient, if it be in writing and sworn to, and shall state that the party claiming such privilege was not, at the institution of such suit, * * * nor at the time of filing such plea, a resident of the county in which such suit was instituted and shall state the county of his residence at the time of such plea, and that none of the exceptions to the exclusive venue in the county of one’s residence mentioned in article 1830 or article 2308 of the Revised Statutes exist in said cause; and such plea of privilege when filed shall be prima facie proof of the defendant’s right to change of venue. If, however, the plaintiff desires to controvert the plea of privilege, he shall file a controverting plea under oath, setting out specifically the fact or facts relied upon to confer venue of such cause on the court where the cause is pending. Upon the filing of such controverting plea the judge or the justice of the peace shall note on same a time for a hearing on the plea of privilege; provided, however, that the hearing thereon shall not be had until a copy of such controverting plea, including a copy of such notation thereon, shall have been served on each defendant, or his attorney, for at least ten full days exclusive of the day of service and day of hearing. If the parties agree upon a date for such hearing it shall not be necessary to serve the copy above provided for. Either party may appeal from the judgment sustaining or overruling the plea of privilege, and if the judgment is one sustaining the plea of privilege and an appeal is taken, such appeal shall suspend the transfer of the venue and a trial of the cause pending the final determination of such appeal.”

Afterwards he ruled for costs and had the court to enter the order without prejudice to his plea of privilege. We are of opinion- that, when the plea of privilege was filed, a mere entry of the fact by the court was not a waiver of the plea of privilege, and especially is this true in the light of the fact that the court had a right to and did reserve a plea of privilege without prejudice to the rights of the parties with reference to appellant’s plea of privilege. In other words, we mean to hold that the mere entry of the rule for costs by the court, with the proviso that it was without prejudice to the right of the party with reference to his plea of privilege, was not a waiver of the plea of privilege, and we may say in this respect that we are of the opinion, notwithstanding the case of Brown v. Reed, 62 S. W. 73, that it would not have been a waiver, even though there had been no express reservation of the rights of the party under his plea of privilege, but that the court, no controverting affidavit having been filed, should have Immediately changed the venue of the same to San Augustine county. We are not able to understand how, having reserved the right accorded him under his plea of privilege in the order of the court, it is possible that the court found that there had been a waiver of his plea of privilege by the mere entrance of the order, especially so as all the rights of the party had been especially reserved.

The statute, as above stated, was amended with the idea evidently in the minds of the Eegislature that when parties were sued out of the county of their residence, and the law had been complied with in reference to a plea of privilege, same having been filed under oath that it would not be necessary for a party to be present and to urge his plea of privilege, in order that the court should hear proof or take any other action than to change the venue, as required by law. The fact that there was no controverting affidavit filed, which is made obligatory, and which would, in the present case, make the same an issue of fact to be tried by the court, the court, in our view, should have promptly granted the change of venue to San Augustine county. There was nothing further that the court could do, the plea having been declared by the law to he prima facie proof of the statements therein made. Therefore, in our view of the law, even if any further action could have been considered by the court, the same would necessarily have to be raised by a controverting affidavit.

In view of the premises, we are of the opinion that nothing is left for us to do except to reverse this cause and send the same back to liberty county, Tex., with instructions that the court change the venue to San Augustine county, Tex., and thereupon the order is made reversing this cause, and returning the same to Liberty county, with instructions that the court transfer the same to San Augustine county, and it is accordingly so ordered.

On Motion for Rehearing.

HIGHTOWER, O. J.

As will be seen from the original opinion reversing the judgment and remanding this cause with instructions, this court discussed only the assignment of error relating to the action of the trial court in overruling appellant’s plea of privilege based upon the view entertained by the trial court that appellant had waived such plea by ruling the plaintiff below for costs.

In the motion for rehearing filed by appel-lee, he earnestly insists that this court was in error in holding that appellant did not waive his plea of privilege by invoking the jurisdiction of the trial court on the rule for costs.

We have again carefully considered this point on motion for rehearing, and we are still of the opinion that appellant did not waive his plea of privilege simply by ruling the plaintiff for costs, and our reason for so holding, being fully shown in the original opinion, needs no further amplification at this time.

Appellee, in the motion for rehearing, further insists, however, that the judgment of the trial court overruling the plea of privilege filed by appellant should be sustained, even if this court should be still convinced that the plea of privilege was not waived by invoking the rule for costs. In this connection, it is earnestly contended by appellee that as his petition, as plaintiff in the court below, alleged facts which gave to that court venue and jurisdiction, under the statute of this state, over appellant, the defendant below, and that as appellant, in his plea of privilege, failed to allege that such allegations of fact contained in appellee’s petition showing venue and jurisdiction in the forum invoked were untrue and were made for the fraudulent purpose of conferring jurisdiction over appellant in the court below, that the trial court was correct in overruling the plea of privilege, and that its action in doing so was tantamount to sustaining a general demurrer to the plea of privilege, and rightly so.

The allegations of fact contained in ap-pellee’s petition, and which he contends gave him the right to sue appellant in the county court of Liberty county, notwithstanding appellant’s residence in San Augustine county, were, omitting formal parts, as follows: •

“That plaintiff, on the 31st day of August, 1916, and for more than a year prior thereto, and since that date, was and now is the owner of the following described lots and land, to wit: Situated in liberty county, Tex., on the east side of the Trinity river, within the corporate limits of the town of Liberty, and being fractional inner block No. 210, according to the map or plat of the town of Liberty, and also 'an unnumbered fractional inner block lying south of said inner block No. 210, as shown on said map or plat of said town of Liberty. That the above-described premises was on the date above mentioned, prior thereto, and has been since said time, and is now under fenced with other property belonging to plaintiff, and that the same was on said date, prior thereto, since said time, and is now in the actual possession of plaintiff. That on the said 31st day of August, 1916, the defendant became the owner of a certain sawmill outfit, including, among other machinery, a boiler, by transfer from the Trinity Tie & Lumber Company, a corporation, to which said company, plaintiff is informed and believes, defendant had previously sold said sawmill machinery. That said machinery was placed on said premises on or about the 1st day of May, 1916, by the said Trinity Tie & Lumber Company, under a rental agreement with the plaintiff, under which said company was to pay to plaintiff the sum of $250 per year rental on said premises, payable semiannually. * * * That on or about the 20th day of December, 1916, the defendant removed from said premises all of the mill machinery except the boiler belonging to same, which said boiler is still on said premises and in possession of plaintiff. That a short time after said mill machinery was transferred to the defendant by the Trinity Tie & Lumber Company, the plaintiff informed defendant that if said machinery remained on said premises he would be charged at the same rate rental as the Trinity Tie & Lumber Company agreed to pay, which he was also informed was $250 per year. That having been so informed by plaintiff, the defendant permitted said machinery to remain on said premises, in possession of the plaintiff, until about the 20th day of December, 1916, at about which date a part of the machinery was removed by defendant, and defendant has permitted the boiler, of the value of $400 belonging to said sawmill outfit, to remain on said premises since that date, and that the same is still thereon, in the possession of plaintiff.”

The prayer was for judgment in the sum of $250, as rental, and for foreclosure of the lien claimed by plaintiff as a common-law lien on said.boiler, etc.

It will be noted that in the original opinion this court, in stating the nature of the suit, among other things, stated that the suit was one by ’appellee to foreclose a common-law lien on the boiler and sawmill machinery, etc.; but we wish to state at this time that it was not the intention of the court, where it used such language, to decide that the facts stated by appellee in his petition were sufficient to show that he had a common-law lien on the boiler, machinery, etc., but we merely intended to state that it was claimed by appellee that he had a common-law lien. We do not now determine or decide whether the facts stated show a common-law lien in favor of appellee to secure the indebtedness claimed by him against appellant, because we do1 not deem it necessary to decide that question in reaching a determination of the question as to whether the trial court was in error in overruling the plea of privilege.

For the purpose of disposing of this appeal, however, we will assume that the facts stated in appellee’s petition, if true, show a common-law lien in his favor on the boiler in question to secure the indebtedness claimed by' him against appellant.

Appellant’s plea of privilege, omitting formal parts, was as follows:

“Now comes A. Murphy, defendant in the above entitled and numbered cause, and says that this court ought not to have or take further action of cognizance of this suit than to have the same transferred to the county having jurisdiction of the person of this defendant, because, he says, that he is not now, and was not at the institution of this suit, nor at the time of service of process on him herein, nor at the time of filing this plea, a resident of the county of Liberty, the county in which this suit was instituted, and is now pending, but is now, and was at the time of the institution of this suit and at the time of service of process upon him and of the execution and filing of this plea, a resident of the county of San Augustine, state of Texas, whore he then and now resides, and that none of the exceptions to exclusive venue in the county of one’s residence mentioned in article 1830 or article 2308 of the Revised Statutes exist in this cause; that this suit does not come within any of the exceptions provided by law in such cases authorizing this suit to be brought or maintained in the county of Liberty, state of Texas, or elsewhere outside of said county of San Augustine, Tex.
“Wherefore, defendant prays the court that the above suit be transferred to the county court of San Augustine county, Tex., and for such orders herein as may be proper and necessary.”

It will be readily observed that this plea of privilege strictly conforms to the statute of this state governing such pleas, as amended by the act passed by the 35th Legislature, chapter 176, p. 388. Section 1 of that act is copied in full in the original opinion in this case, and need not be recopied here.

After appellant’s plea of privilege was filed, no character of reply whatever seems to have been made thereto by appellee, and no controverting affidavit of any character relative to such plea was filed by appellee.

Now, it is the contention of appellee that since his petition stated facts which on its face gave him the right to sue appellant in Liberty county, notwithstanding the latter’s residence in San Augustine county, and since appellant failed to reply to such allegations in his petition, and to allege that such allegations showing venue in the forum invoked were falsely made and for the fraudulent purpose of conferring jurisdiction there over appellant, that there was no issue of fact to be determined by the trial court on the plea of privilege, because no such issue was joined by the pleadings, and that the court was correct in assuming and holding jurisdiction on the state of facts alleged in appellee’s petition. In support of this contention, ap-pellee cites the following cases: Pearce v. Wallis, 58 Tex. Civ. App. 315, 124 S. W. 496; Drummond v. Bank, 152 S. W. 739; Baldwin v. Richardson, 87 S. W. 353; Kirkpatrick v. Bank, 148 S. W. 362.

Had the law of this state governing the plea of privilege not been changed, as it was by the act of the Thirty-Fifth Legislature above mentioned, then appellant’s contention on this point would be correct, and would be fully supported by the authorities cited. Since the amendment of the law on this point, however, by the Thirty-Fifth Legislature, the authorites cited have!, in iour opinion, no application.

After carefully studying the amendment of the law made by the Thirty-Fifth Legislature and quoted in full in the original opinion, we have reached the conclusion that the plea of privilege filed by appellant was, toy force of the statute as amended, tantamount to a full, complete, and detailed denial under oath of the facts alleged in appellee’s petition, the existence of which appellee claimed conferred jurisdiction over appellant, and the right to sue him in Liberty county; and that, after the filing of such plea by appellant, appellee was required, in order to raise the issue of the right to sue appellant in Liberty county, to file a controverting plea or affidavit, under oath, which verified plea or controverting affidavit would show facts conferring jurisdiction over appellant in Liberty county, as sought, even though such would be but a repetition of the jurisdictional facts already alleged in his petition. We think that the express language Of the new act compels the construction that we have placed upon it and here applied.

Appellee having failed to file such controverting affidavit or verified plea, in answer to appellant’s plea of privilege, there was but one course that the trial court might correctly pursue, and that was to sustain appellant’s plea, and transfer the cause to the county court of San Augustine county for trial.

We think the construction we have placed on the new act is in perfect accord with and finds support in the opinion of the Ft. Worth Court of Civil Appeals in the case of Ray et al. v. W. W. Kimball Co., 207 S. W. 351.

The original opinion will therefore be adhered to, and the motion for rehearing overruled, and it will be so ordered.
      <§=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, C. J.

text:
    EL PASO ELECTRIC RY. CO. et al. v. CARRUTH.
    (No. 914.)
    (Court of Civil Appeals of Texas. El Paso.
    Jan. 23, 1919.
    On Rehearing, Feb. 20, 1919.)
    1. Appeal and Eeeoe <§=>991— Foeeion Statutes — Meaning—Question op Fact.
    Where statutes of a foreign country have been introduced in evidence, and lawyers of long practice in such country have testified as to meaning of sections shown, question of existence of, and abstract meaning of, laws becomes a question of fact to be determined by trial court.
    2. Appeal and Eeeoe <⅞=>930(3) — Issues Not Submitted to Juey — Pkesumptions.
    Where there was evidence in the record which would support a finding by the trial court that the laws of Mexico were substantially, if not in fact and in effect, the same as the laws in Texas, and the issue was not submitted to the jury, in upholding action of court in taking jurisdiction presumption must be indulged, under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1985, that the court so found in line with such evidence.
    3. Appeal and Eeeoe <§=>757(3) — Beiep— Set-ting Out Evidence.
    An instruction as to damages which limited jury in its award to damages accruing only up-to time of trial cannot be held erroneous, where appellant does not state in his brief that there-was any evidence that all the damages had not accrued at time of trial.
    4. Appeal and Eieeoe <§=>1033(4) — Harmless-Eeeoe — Insteuctions.
    In an action for damages, that trial court did not submit the question of future damages, when in fact it might have done so under the evidence, cannot > be complained of by defendant, being more favorable than defendant was entitled to.

      5. Appeal and Error <§=>1033(5) — Harmless Error — Instructions.
    In an action for damages from a tort committed in Mexico, defendant cannot complain of an instruction as to contributory negligence on the ground that such defense had no existence in the law of Mexico, the charge being more favorable than defendant was entitled to.
    6. Courts <⅞=9 — Jurisdiction — Causes op Action Arising in Foreign Country.
    That only one action can be brought in Texas for a tort, and that subsequent actions can be brought in Mexico for damages accruing after trial, does not prevent a Texas court from assuming jurisdiction of action for tort committed in Mexico, and giving judgment for damages accruing before trial.
    7. Courts <§=>9 — Jurisdiction—Torts Committed in Foreign Country.
    Under pleadings and evidence in action for damages for tort committed in Mexico, held that it was not necessary to invoke provisions of Acts 35th Leg. c. 156, bestowing jurisdiction upon courts of Texas in cases involving torts committed in foreign countries, to justify court in taking jurisdiction.
    Appeal from District Court, El Paso County; P. R. Price, Judge.
    Suit by James S. Carruth against the El Paso Electric Railway Company and another. Judgment for plaintiff, and defendants appeal.
    Affirmed.
    Davis, Goggin & Harrington, of El Paso, and Baker, Botts, Parker & Garwood, oi Houston, for appellants.
    John T. Hill, of El Paso, for appellee.
   HARPER, C. J.

This suit was instituted by, James S. Carruth on March 28, 1918, in the Forty-First district court of El Paso county, Tex., against the El Paso Electric Railway Company and the Juarez Traction Company for personal injuries alleged to have been sustained by him in the city of Juarez, republic of Mexico. The accident and injuries to plaintiff occurred in Juarez on or about the 4th day of January, 1916. The plaintiff, at the time of his injury, was in the employ of the Tri-State Telephone Company as a lineman and repairman. The plaintiff alleged the El Paso Electric Railway Company and Juarez Traction Company owned and operated certain electric light lines in Juarez; that a guy wire belonging to the defendants, used to guy one of their electric light poles, became loosened from the ground, came into contact .with a transformer and exposed live wire of the defendants on this pole, became charged, and, having come into contact with the guy wire of a telephone pole, when plaintiff attempted to climb the telephone pole in discharge of his duties as such repairman he received an electric current through his body from defendants’ wires, was shocked, burned, thrown to the ground, and seriously injured.

The defendants first interposed a plea to the jurisdiction of the court, setting up that the accident and injury occurred in the state of Chihuahua, republic of Mexico, and that the statutory laws of Mexico governing cases of this character were so dissimilar to those of Texas the courts of Texas should not and would not take jurisdiction, pleading in detail the statutory laws of Mexico governing cases of the character of that set up by plaintiff in his petition. The plea to the jurisdiction was followed by a general demurrer, a general denial, a plea of contributory negligence,'and a plea adopting and setting up the facts pleaded in the plea to the jurisdiction in bar of plaintiff’s cause of action.

Appellee, by supplemental petition, denies that the laws pleaded by appellants as the laws of Mexico governing the rights of the parties are in fact the laws, and all the laws, of Mexico governing the right of appellee to damages and the measure thereof, and that the laws of torts and negligence in Mexico are substantially the same as those of Texas and the United States, and that a great portion of the law pleaded by appellants as the law governing in this case is in truth the adjective law of 'Mexico, and is not controlling in determining the right of jurisdiction, but that the substantive law of negligence of the two countries is substantially the same as set forth in appellee’s supplemental petition.

The trial court overruled the plea to the jurisdiction, and submitted the case as if the action were for an injury occurring in Texas, except that the questions of mental and physical pain and inability to labor and earn money in the future were not submitted. Submitted to a jury, and upon their verdict judgment was entered for $2,500, from which this appeal.

■ By several assignments and propositions it is charged that, under the undisputed evidence as to the laws of Mexico, the defendant’s plea to the jurisdiction of Texas courts should have been sustained and the cause dismissed (a) because our courts cannot ascertain with sufficient certainty the substantive law of Mexico governing the case; (b) because the laws of the state of Chihuahua and the republic of Mexico are so dissimilar to those of this state covering the right of action, the measure of damages, and the terms of recovery that the courts of Texas cannot and should not enforce them. For these propositions appellant relies upon Railroad Co. v. Jackson, 89 Tex. 107, 33 S. W. 861, 31 L. R. A. 276, 59 Am. St. Rep. 28; Railway Co. v. McCormick, 71 Tex. 660, 9 S. W. 540, 1 L. R. A. 804; De Herrera v. Tex. Mex. Ry. Co., 154 S. W. 594; Slater v. Ry. Co., 194 U. S. 120, 24 Sup. Ct. 581, 48 L. Ed. 900, etc.

These were all railway negligence cases resulting in death, and others than the injured party sued, and, so far as the report of these cases show, the laws of Mexico applicable to the facts as pleaded were proved as alleged; and we also note that the articles of the Civil and Penal Codes of Mexico relied upon in those cases are pleaded and proved in this case and are here relied upon as a defense. So, if we were limited in our consideration of the points raised here by that which was in effect conceded to be the law in those cases, our holding must of necessity be the same; but, as indicated in the statement of the pleadings of the appellee, it is denied that the law pleaded and proved by appellant is the law applicable to this case, and has specifically set up other articles of the Civil Code of the state of Chihuahua and of the Mexican republic, alleging that in fact and as construed by the courts they are the sainé as those of Texas, and in support of this pleading has introduced other sections of the Codes of Mexico in evidence, and in addition introduced the testimony of witnesses who qualified as experts, lawyers of long practice in the republic of Mexico, to the effect that, whilst there is no system of reporting the opinions of the 'Mexico courts, in fact the true meaning of the sections of the laws in evidence in this case is substantially the same as those of Texas, and that the courts there are authorized to and do so construe them; that certain sections of the law apply only to railways, and others apply to other industrial enterprises, and point out those which gave the cause of action against industrial enterprises such as the defendant in this case, under similar facts. In such cases the question of the existence of and abstract meaning of the laws, as is urged by appellee in a counter proposition, becomes a question of fact to be determined by the court or the jury, as the case may be. It, could serve no good purpose to quote these articles of the Mexican Code or the evidence of lawyers adduced, so we will not do so. Sierra Madre Construction Co. v. Brick, 55 S. W. 521; St. Louis & S. F. Ry. Co. v. Conrad, 99 S. W. 209; Slater v. Mexican National R. R. Co., 194 U. S. 120, 24 Sup. Ct. 581, 48 L. Ed. 900.

This case was submitted upon special issues, but the question was not submitted, nor was it requested to be submitted; so article 19S5, Vernon’s Sayles’ Statutes of Texas, applies: “ * * * The failure to submit any issue shall not be deemed a ground for reversal. * * * An issue not submitted and not requested by a party to the cause, shall be deemed as found by the court in such manner as to support the judgment; provided, there be evidence to sustain such finding.” That the sections of Mexico laws in evidence in this case, and not in evidence in the Jackson and other cases cited by appellant, taken in connection with the testimony of the lawyers of Mexico in evidence, clearly show that the construction placed upon the laws of Mexico and their operation, by these opinions, is not the one placed upon them by the courts of Mexico, is not to be questioned. It is true that the testimony of the lawyers is conflicting; but this simply emphasizes the necessity for a finding of the fact by the court or jury, as the case may be; so this question not having been submitted and not requested, and finding, as we do, that there is evidence in the record which supports a finding by the trial court that the laws of Mexico are substantially, if not in fact and in effect, the same as the laws in Texas, in upholding the action of the court in taking jurisdiction in this ease, the presumption must be indulged that he so found in line with this evidence.

By the tenth assignment it is charged that the court erred in submitting the measure of damages, in that the measure prescribed by the charge is not the measure provided by the laws of Mexico. The proposition is that, the trial court having assumed jurisdiction of the cause of action, it must try it (save only as to matters of procedure) in accordance with the law of Mexico, and cannot carve out of the case presented by the pleadings and evidence a portion of the cause of action, and try the same by the law of the former, leaving the other matters of right unadjudicated, because of dissimilarity between the law of the former and that of the foreign country, and the impossibility of reconciling them.

As we understand the point raised, it is that because the court by its charge limited the jury in its award of damages to the mental and physical pain, the loss of time, and loss of money by reason of having been prevented by his injuries from laboring up to the time of trial, and that thereby all the phases of the Mexico laws in evidence were not submitted, and in support of this contention invokes the provisions of articles 817 and 318 of the Mexican Code, which read:

“Art. 317. If the inability of the injured party to devote himself to his accustomed work be permanent, from the moment in which he shall recover and can properly devote himself to other and different work, which shall be lucrative and appropriate to his education, habits, social position and physical constitution, the civil responsibility shall be reduced to paying him the sum which his ability to earn in his new employment falls short of his daily earnings in his former occupation.
“Art. 318. If the blows or wounds cause the loss of any member not indispensable for work, or the person wounded or struck remain otherwise crippled, lamed or deformed, the indemnity shall be up to one-half the amount which is fixed according to article 317.”

One of the expert witnesses testified that:

“If all the damages that come up, that are proven at the time of the trial, are ascertained, damages up to the time of the trial and in the future are proved, the judge has the right to determine the matter, settle the matter, with one judgment at the time of the trial.”

Appellant does not suggest in his brief that there is any evidence that all the damages had not accrued at the time of the trial. .Neither is it suggested that the jury have not in fact arrived at the amount of damages assessed by them with strict observance of the rules quoted. They were in evidence for their guidance. It would seem from the fact of the limitation placed in the charge — submission of only past damages— that the trial court had concluded tha^t the whole of plaintiff’s damages had accrued, and that the laws of Mexico authorized the form of charge given; and in this connection we must indulge in the same presumption that is indicated in the discussion of the assignments next above in favor of the judgment.

If he did not conclude that all the damages had accrued, then he could properly, under the interpretation of the Mexican laws given by the witness, quoted, have submitted such future damages as had then by the evidence been definitely ascertained. It is there-, fore apparent, we think, that it does not nec-f essarily follow that the court did leave any matters unadjudicated, such as future damages, as suggested in the latter part of the proposition.

Besides, the fact that the trial court did not submit the question of future damages, when in fact he might have done so, under the evidence of the witness quoted, is not a matter that appellant may complain of here, because if the facts justified such a charge, and the court failed to give it, appellant has simply had a more favorable charge than he was entitled to — therefore cannot be heard to complain.

The eighth objects to the definitions given in the charge of the court of negligence and of contributory negligence, based upon the proposition that his right of recovery and the measure of his damages are controlled by the laws of Mexico, and the case should have been submitted to the jury under such laws and not under the laws of Texas. We have been unable to discover anything in this record that discloses that a different meaning has been placed upon these terms in Mexico than in Texas, and appellant has not suggested any. It is in evidence, by answer to a hypothetical question of one of the attorneys of Mexico who testified, that the facts of this case constituted negligence under the Mexico law for which defendant would be liable. If the defense of contributory negligence has no existence in the law of Mexico, then again defendant cannot complain, be- ' cause he had a more favorable charge than he was entitled to. But it would seem that this is more nearly a question of remedy than of substantive law applicable to the rights of the parties under the facts.

By the ninth it is again contended that the trial court should not have assumed jurisdiction because a judgment here in no way bars another suit for damages in Mexico.

The propositions are that (a) “tire laws of-Mexico embrace items of damages which cannot be considered by our courts”; and (b) “that successive suits for damages growing out of the same accident, particularly in cases where damages develop after the conclusion of the original suit, may be brought” ; citing article 306, which one of the Mexican lawyers construed to mean: “Under that provision if the judgment rendered in the first suit only refers to the damages up to the time of that judgment, and if it should appear that there are subsequent damages arising from the same cause, the party is • permitted to bring a new suit for additional damages.” The exact point here, also, is that this provision for a suit for additional damages in Mexico makes the provisions of the laws of Mexico so dissimilar as that the courts here should not attempt to enforce them. If we are correct in the holding above that the court did not err in submitting to the jury, only the amount of damages that had accrued up to the time of trial, because such is permitted under the Mexican law, then to that extent the trial court has not deviated from the Mexican law; hence not erroneous, for because perchance he may have another try for additional damages by another suit in 'Mexico upon a cause of action which we would not here recognize under the laws of Texas is no reason why we should not enforce his cause of action in so .far as it finds its support in the Mexico law. As was said in Mexico Cent. Ry. Co. v. Mitten, 13 Tex. Civ. App. 653, 36 S. W. 282: “We are not willing to * * * extend the scope of the decision cited [which holds that the Texas courts would not take jurisdiction] beyond the purview of the facts” therein recited.

In answer to the fifth and sixth, we ■are of the opinion that, under the pleadings and evidence in this case, it is not necessary to invoke the provisions of the act of 35th Legislature of Texas, c. 156, which has reference to bestowing jurisdiction upon the courts of Texas in cases involving torts committed in foreign countries to justify the action of the trial court in taking jurisdiction of this action. Therefore there was no necessity for him to prove that he was a citizen of this state in order to maintain it.

Believing that the record presents no error, the assignments are overruled and cause affirmed.

On Rehearing.

We were in error in stating that the Jackson and other cases cited were cases resulting in death; so this expression is withdrawn.

We simply intended to note the fact that, under the testimony of the expert witnesses, certain sections of the Mexico Codes applied to railway companies and others to other industrial enterprises in cases of torts, and that those applicable to the latter permit a recovery to persons negligently injured, and that under the evidence it became a question of fact whether the laws in evidence permit a recovery in this case, and that, the question not having been submitted nor requested to be submitted, we must presume, under our statute, that it was resolved in favor of the judgment.

The motion is overruled.
      <g=>Por other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      ©=>For other cases see same topic and KEY-NUMBER in all Key-Numbered, Digests and Indexes


text:
    ATCHISON, T. & S. F. RY. CO. v. SIMIE.
    (No. 792.)
    (Court of Civil Appeals of Texas. El Paso.
    Feb. 6, 1919.)
    Appeal from District Court, El Paso County ; Ballard Coldwell, Judge.
    Suit by Peter Simie against the Atchison, Topeka & Santa Pé Railway Company for damages for personal injuries. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded, with instructions.
    Terry, Cavin & Mills, of Galveston, and Tur-ney, Culwoll, Holliday & Pollard, of El Paso, for appellant.
    Geo. E. Wallace and W. S. Berkshire, both of El Paso, for appellee.
   HARPER, C. J.

Appellee filed this suit in the district court of El Paso county against appellant railway company for damages for personal injuries. Appellant filed its motion for change of venue or plea of privilege, in due form and within the time specified. Said motion contained substantially the same allegations of facts, and proof thereof is the same, as contained in the case of Atchison, Topeka & Santa Ed Railway Co. v. Stevens, decided by this court and reported in 192 S. W. 304, to which we refer for a more definite statement. The Supreme Court granted a writ of error in the Stevens Case (202 S. W. xv) before the instant case was submitted, whereupon, by agreement of parties, this case was submitted and passed to await the action of the Supreme Court in the Stevens Case. That court recently, in an opinion not yet officially reported (206 S. W. 921), sustained the plea of privilege; so, in accordance with the holding in that case, this case is reversed and remanded to the district court of El Paso county, Tex., with the direction to transfer it to the district court of one of the counties named in the defendant’s plea of privilege, as the plaintiff may elect.

Reversed and remanded, with instructions.


text:
    ATCHISON, T. & S. F. RY. CO. v. BRESSIE.
    (No. 808.)
    (Court of Civil Appeals of Texas. El Paso.
    Feb. 6, 1919.)
    Appeal from District Court, El Paso County; Ballard Coldwell, Judge.
    Suit by T. E. Bressie against the Atchison, Topeka & Santa PS Railway Company. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded, with instructions:
    Terry, Cavin & Mills, of Galveston, and Tur-ney, Culwoll, Holliday & Pollard, of El Paso, for appellant.
    Geo. E. Wallace and W. S. Berkshire, both of El Paso, for appellee.
   HARPER, C. J.

Appellee filed this suit in the district court of El Paso county against appellant railway company for damages for personal injuries. .Appellant filed its motion for change of venue or plea of privilege, in due form and within the time specified. Said motion contained substantially the same allegations of facts, and proof thereof is the same, as contained in the case of Atchison, Topeka & Santa FS Railway Co. v. Stevens, decided by this court and reported in 192 S. W. 304, to which we refer for a more definite statement. The Supreme Court granted a writ of error in the Stevens Case (202 S. W. xv) before the instant case was submitted, whereupon, by agreement of parties, this case was submitted and passed to await the action of the Supreme Court in the Stevens Case. That court recently, in an opinion not yet officially reported (206 S. W. 921), sustained the plea of privilege; so, in accordance with the holding in that case, this case is reversed and remanded to the district court of El Paso county, Tex., with the direction to transfer it to the district court of one of the counties named in the defendant’s plea of privilege, as the plaintiff may elect.

Reversed and remanded, with instructions.


author: SWEARINGEN, J.

text:
    GALVESTON, H. & S. A. RY. CO. v. WRIGHT.
    (No. 6134.)
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 22, 1919.)
    Appeal from District Court, San Patricio County; P. G. Chambliss, Judge.
    Suit between the Galveston, Harrisburg & San Antonio Railway Company and M. P. Wright.Prom the judgment rendered, the former appeals.
    Judgment reformed and affirmed, as per agreement of the parties.
   SWEARINGEN, J.

Appellant and appellee herein, in a joint motion, make the following statement:

“The said parties have agreed to settle said cause in the following manner: Appellee to accept the sum of $500' in full and complete settlement of all claims in said cause, and of the judgment rendered by the court below on February 27, 1918, as shown on page 14 of the transcript, and appellant to no further prosecute its appeal and to pay all costs, and it is the desire of the said parties that this court render such judgment herein as will accomplish the purpose and object of such agreement.”

The above motion is granted, and, as requested by both parties, the judgment rendered by the trial court is here reformed, by reducing the above to $500, together with interest at 6 per cent, per annum from January 22, 1919. All costs are adjudged against appellant.

As per agreement of the parties, the judgment is reformed and affirmed.


author: WILLSON, C. J.

text:
    TEXARKANA & F. S. RY. CO. v. TWIN CITY PRODUCTS CO.
    (No. 2063.)
    (Court of Civil Appeals of Texas. Texarkana.
    Jan. 24, 1919.
    Rehearing Denied Feb. 13, 1919.)
    1. Carriers <®=>177(3) — Interstate Shipments — Diability op Initial Carrier.
    While under Interstate Commerce Act, § 20, as amended by Hepburn Act, § 7 (U. S. Comp. St. § 8604a), the initial carrier is liable for injuries caused by negligence of the connecting carrier, while it held the property as such, the initial carrier is not liable for the connecting carrier’s negligence as a warehouseman.
    2. Carriers <©=>177(3) — Refusal of Shipment-Notice to Consignor.
    Where a consignee refuses to accept a shipment, duty to notify the shipper rests on the carrier as such, and so, where a connecting carrier negligently delayed to notify a shipper of refusal to accept an interstate shipment, and it spoiled in the meantime, the initial carrier is liable.
    Appeal from Bowie County Court; J. B. Dytal, Judge.
    Action by the Twin City Products Company against the Texarkana & Pt. Smith Railway Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    This was a suit by appellee against appellant to recover $153.12 as the value of certain cider delivered by the former to the latter at Texarkana, in Texas, for transportation over its line of railway and its connecting lines (to wit, the Kansas City Southern Railway and the Gulf, Colorado & Santa Pé Railway) to Merryville, in Louisiana, and delivery there to one Mayo and to one Eaves. The shipments were made June 7, 1917. The contracts covering same were evidenced by “straight” bills of lading .of the standard form approved by the Interstate Commerce Commission June 27, 1908. The trial in the justice court, where the suit was commenced, resulted in a judgment denying appellee the right it sought. The judgment of the county court, to which appellee prosecuted an appeal, was in its favor for said sum of $153.12, and in addition thereto for $20 as an attorney’s fee it was entitled to recover.
    It appeared from the testimony heard at the trial in- the county court that the cider was duly transported to Merryville, reaching that place on June 12, 1917, and that on June 13, 1917, the agent at Merryville of the Gulf-Colorado Railway Company (the terminal carrier) personally notified Mayo and Eaves, the consignees, respectively, of the cider, that same was “in the freight depot at Merryville.” It further appeared that said consignees “refused to receive said shipments or claim the same.” It further appeared that, had appellee been promptly notified of such refusal, it could and would have disposed of the cider to other persons for as great a sum, it inferentially appeared, as the consignees were to pay for it. It further appeared that said Gulf, Colorado & Santa Pé Railway Company, without any notice to appellee that the consignees had refused to receive the cider, stored same in its warehouse, where it became sour and valueless. And it further appeared that the cider after it had been so stored about 40 days was sent hack to Texarkana, where it was tendered by appellant to appellee, who refused to receive it.
    King & Estes, of Texarkana, for appellant.
    Weaver & Spivey, of Texarkana, for ap-pellee.
   WILLSON, C. J.

(after stating the facts as above).

By force of section 20 of the Hepburn Act (section 8604a, U. S. Compiled Statutes), appellant, having received the cider for transportation from a point in this state to a point in another state, became liable to appellee for any damage or injury thereto caused by it, or by either of its connecting carriers, while it held same as a common carrier. We do not understand appellant to be in the attitude of contending to the contrary of the statement just made. Its contention is that the damage to the cider was not caused by it, nor by a failure of either of its connecting carriers to discharge a duty it owed to a common carrier, but by the failure of one of them, to wit, the Gulf, Colorado & Santa Pé Railway Company, to discharge a duty it owed, if at all, as a warehouseman. If the contention is sound the judgment is wrong, for initial carrier is not liable by force of the statute referred to for the act or omission of the delivering carrier resulting in injury to the goods while it holds same as a warehouseman. 10 C. J. 526; Hogan Milling Co. v. Ry. Co., 91 Kan. 783, 139 Pae. 397. Whether the contention is sound or not depends, we think, upon whether the delivering carrier is charged with a duty to notify the consignor when the consignee refused to-receive the goods. The question, seems to he an open one in this state, and the holding in other jurisdictions is not uniform. Mr. Hutchinson in his work on Carriers (2 Hutch, on Carriers, § 721; and see 10 C. J. 270), after noting the conflict in the decision, says, and we agree, that the better opinion is that such a duty rests upon the carrier as such. If it does, then the judgment is not erroneous; for it appeared from uncontroverted testimony that had appellee been promptly notified of the fact when the consignee of the cider refused to receive same it could and would have disposed of the eider to other persons before same became sour and worthless.

The judgment is affirmed.
      (SssFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    CLARDY v. AMERICAN TRUST & SAVINGS BANK.
    (No. 916.)

    (Court of Civil Appeals of Texas. El Paso.
    Jan. 30, 1919.
    Rehearing Denied Feb. 20, 1919.)
    1. Appeal and Eebob <§==>1001(1) — Review— Yeedict.
    The verdict cannot be disturbed on appeal, there having been testimony sufficient to support it.
    2. Banes and Banking <§=>117 — Failuee of Considebation — Loan foe Investment.
    There is no failure of consideration for note executed by defendant to plaintiff bank for money loaned, with which to buy stock, however valueless the stock, though the money was paid out therefor by plaintiff’s cashier; he in such transaction being defendant’s accredited agent.
    Appeal from District Court, El Paso County; Ballard Coldwell, Judge.
    Action by the American Trust & Savings Bank against Allie D. Clardy. Judgment for plaintiff, and defendant appeals.
    Affirmed,
    Turney, Culwell, Holliday & Pollard and C. L. Galloway, all of El Paso, for appellant.
    John L. Dyer and J. F. Woodson, both of El Paso, for appellee.

      Writ of error denied by Supreme Court April 2,1919.

   HARPER, C. J.

The American Trust & Savings Bank brought this action against Allie D. Clardy on a promissory note for $1,797.35, executed by defendant to the order of the bank.

The defenses are that she did not execute the note, but signed her name to a blank note, without date or amount, to be filled in by J. F. Primm, cashier of the plaintiff bank, in case, after investigation, she concluded to purchase certain corporate stock; that, after investigation, she decided that the stock was worthless and concluded not to buy, and so notified the bank by letter addressed to Primm; but that said Primm fraudulently filled out said note and placed it among the assets of the bank; and further that, on account of the above facts, there was a failure of consideration.

The bank replied by general denial, and that, if Primm purchased stiiek for defendant, it was purchased in good faith for defendant from one Bottorff and not from plaintiff ; that the note was given to plaintiff; and that it paid full value therefor.

The case was submitted to a jury by one special issue, as follows: Was it agreed between defendant and J. F. Primm, acting for himself or the bank, that the note described in plaintiff’s petition would not be binding upon defendant unless she notified Primm after the date of said note that she would purchase the stock? The jury answered, “No.” And upon this verdict the court entered judgment for the bank for the full amount of the note, from which this appeal.

The first assignment is that the judgment is contrary to the preponderance of the evidence.

We have examined the evidence, and find that plaintiff introduced testimony sufficient to support the verdict, upon the issue submitted. In such case, we have no power to disturb the judgment upon appeal. Thomas v. Abbott, 182 S. W. 19.

The second assignment complains of the ruling of the trial court in excluding the depositions of witness as to the value of the stock purchased. The proposition is that she should have been permitted to prove this fact in support of her plea of failure of consideration. The answer is that the bank advanced the full face value of the note. It was paid out for the stock by its cashier, but in this transaction the cashier, Primm, became the agent of defendant and not of the bank, and she cannot assert failure of consideration for the note, because the bank discharged its duty in turning the money over to Primm, defendant’s accredited agent, and there is no proof that the bank had any part in what was done with it afterwards. Hilliard v. Lyons, 180 Fed. 685, 103 G. O. A. 651, and authorities therein cited. The evidence therefore was immaterial.

Finding no error in the record, the cause is affirmed.
      <§=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HALL, J.

text:
    NEELEY v. WHITE et al.
    (No. 1472.)
    (Court of Civil Appeals of Texas. Amarillo.
    Feb. 5, 1919.)
    1. Appeal and Error <§=5294(1)—Review-Sufficiency of Evidence,.
    Unless the point of the sufficiency of the evidence to support the jury’s findings has been raised and the verdict attacked by motion for new trial in the lower court, it cannot be considered in the Court of Civil Appeals.
    2. Appeal and Error <§=>218(2) — Assignment of Errob—Failure to Submit Issue.
    Assignment of error complaining of court’s failure to submit requested issue to jury, neither it nor statement under it showing that plaintiff in error requested submission of any such issue, and record not showing that charge of court was excepted to for failing to submit issue, cannot be considered.
    3. Appeal and Error <§=>281(1)—Right to Assign Error—Motion for New Trial-Jury Case.
    In jury trials filing of motion for new trial is prerequisite to appellant’s right to assign error in Court of Civil Appeals.
    Error from District Court, Dickens County ; J. H. Milam, Judge.
    Action between C. D. Neeley and H. L. White and others. To review judgment fob White and others, Neeley brings error.
    Affirmed.
    J. Ross Bell, of Paducah, for plaintiff in error.
    G. E. Hamilton, of Matador, for defend-' ants in error.
   HALL, J.

This was a trial in the court below before a jury. No motion for new trial was ever filed in that court.

The first, second, and third assignments of error question the sufficiency of the evidence to support the findings of the jury. Unless this point has been raised and the verdict attacked by motion for new trial in the lower court, it cannot be considered here. Green v. Hall, 203 S. W. 1175; Waller v. Liles, 96 Tex. 21, 70 S. W. 17; Blackwell v. Vaughn, 176 S. W. 913; Wellborn v. Wellborn, 185 S. W. 1041; District Court Rule No. 71a (145 S. W. vii); Court of Civil Appeals Rules 24 and 25 (142 S. W. xii).

The fourth assignment complains of the court’s failure to submit a requested issue to the jury. This assignment is subject to the foregoing objections, and further that neither the assignment nor the statement under it show that plaintiff in error requested any such issue to be submitted; nor does the record show that the charge of the court was excepted to for failing to submit such an issue. This assignment cannot be considered. Water Supply Co. v. Castle, 199 S. W. 303.

The same objection is urged to the fifth, assignment of error and is sustained.. Not only did plaintiff in error fail to file a motion for new trial, but no exceptions whatever were taken to the judgment or the findings of the jury. While it has been held that in a trial before the court without a jury the filing of a motion for new trial in the court below is not a prerequisite to the appellant’s right to assign error in this court (Graver v. Greer, 107 Tex. 356, 179 S. W. 862), such is not the rule in jury trials (J. W. Jenkins’ Son’s Music Co. v. Truex, 204 S. W. 872; Shuler v. City of Austin, 201 S. W. 445; Vernon’s Sayles’ Civil Statutes, art. 1612; Caffarelli Bros. v. Bell, 190 S. W. 223; Jackson v. Houston Hot Well Co., 186 S. W. 247).

Defendant in error has by motion, and in his brief, moved this court to strike out the .assignments and not to consider them. The motion is sustained.

We find no fundamental error in the record, and the judgment is therefore affirmed.
      <g=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: FLY, C. J.

text:
    LEWIS v. SAN ANTONIO BELT & TERMINAL RY. CO.
    (No. 6148.)
    (Court of Civil Appeals of Texas. San Antonio.
    March 12, 1919.)
    1. Judgment <§=>788(1) — Lien—Unrecorded Deed.
    Purchaser of land, sold on alias execution under judgment recovered by vendors against vendee and assigned, abstract of judgment being legally issued and filed for record, held not in position of one who finds record title in judgment debtor, and fixes lien on his property which would be effective, though debtor may have conveyed to another by unrecorded deed, being in position of claiming lion on property not shown by record to be debtor’s.
    2. Execution <§=>264—Property Passing-Title of Judgment Debtor.
    Only the right, title, and interest of the judgment debtor is sold to the purchaser on execution.
    Appeal from District Court, Bexar County.
    On motion for rehearing.
    Motion overruled.
    For former opinion, see 208 S. W. 552.
    Frank H. Booth and James D. Crenshaw, both of San Antonio, for appellant.
    C. C. Huff, of Dallas, F. C. Davis, of San Antonio, and A. H. McKnight, of Dallas, for appellee.
   FLY, C. J.

This court did not, as claimed in the motion, hold that the deed from Reynolds to appellee was notice in itself to the Kellers that Hildebrand had parted with title to the land, and the opinion is in thorough accord with “Grace v. Wade, 45 'Tex. 522, and other eases following it,” and is not in conflict with “White v. McGregor, 92 Tex. 556, 50 S. W. 564, 71 Am. St. Rep. 875, Bumpkin v. Adams, 74 Tex. 96, 11 S. W. 1070, Frank v. Heidenheimer, 84 Tex. 642, 19 S. W. 855, and other cases.” This court held that registration laws can have no application to the Kellers and those claiming under them when they sought to fix a lien on land that the records did not show that Hildebrand owned. Appellant is attempting to place himself in the position of one who finds the record title in a judgment debtor, and fixes a lien upon his property, which would be effective, although such debtor may have conveyed the land to another by an unrecorded deed. He does not occupy that position, but is in that of claiming a lien on property not shown by the record to be the property of the debtor, but whose title is evidenced just as Reynolds’ was by an unrecorded deed. Neither the record nor anything else showed that Hildebrand owned the land, and in truth and in fact he did not own it. The registration laws cannot be invoked by appellant in this case, and if any attention is to be paid the provisions of article 5616, Revised Statutes, and to the opinions thereunder, notably, First State Bank v. Jones, 107 Tex. 623, 183 S. W. 875, appellant acquired no right or title to the land which did not belong to Hildebrand, but which belonged to another when it was sought to fix the judgment lien on the land.

The authorities relied upon by appellant cannot be applicable to the facts of this case, because each and every one refers to cases in which parties had acted on notice given by the record. Appellant or the Kel-lers did not act upon any such notice. If the judgment obtained by the Kellers had been against Dolan, in whom the record title rested, and the abstract of judgment had sought to fix the lien against Dolan, appellant would occupy the position he has sought to attain; but the judgment was against Hildebrand alone, and the land was levied upon and sold as his property. There was no record title, nor any other kind of title, in Hildebrand at the time. Only the right, title, and interest of Hildebrand was sold to appellant under execution, and he had no right, title, or interest in the land. Registration laws cannot be invoked by appellant.

The case of Grace v. Wade, 45 Tex. 522, and cases following it, are all based on deeds recorded in the name of the judgment debtor and rights accruing under such record. The opinion of this court cannot be in conflict with any of the cases cited, because they are not applicable to the state of facts in this case.

The motion for rehearip'g is overruled.


author: MONTGOMERY, P. J.

text:
    WHITTENBURG v. GROVES.
    (No. 41-2696).
    (Commission of Appeals of Texas, Section B.
    April 2, 1919.)
    Specific. Pebfobmance <&wkey;89 — Conduct of Plaintiff — Abandonment of Contract — Assebtion of Outstanding Title.
    Where a purchaser of land brought suit for specific performance of Ms contract, but, before any action was taken in such suit, except filing of petition and issue of citation, acquired from heirs of third person an outstanding title and sued seller in trespass to try title to recover the land, but lost the suit, he was not entitled to thereafter prosecute the suit for specific performance; the bringing of the action in trespass to try title having been a 'repudiation of the contract.
    Appeal from Court of Civil Appeals of Seventh Supreme Judicial District
    On rehearing.
    Motion for rehearing overruled.
    For former opinion, see 208 S. W. 901.
   MONTGOMERY, P. J.

Complaint is made that we erroneously stated that the suit for specific performance was filed only one day before the judgment was rendered in the trspass to try title case. In the amended petition on which this case was tried it is alleged that the original petition was filed March 3, 1913, which was the day before the trespass to try title suit was tried, and therefore we conceive that we did not misstate the facts as thy appeared in the record. We accepted the statement of counsel in the amended petition as to the date of the filing of the original petition as correct. We now, however, find that from other parts of the record the petition in the specific perform; anee case was filed before the trespass to try title suit was brought, and that the statement in the record on which we relied was erroneous. It does not appear that any action was taken in the specific performance suit, except to file the petition and possibly issue citation, until after the trespass to try title suit was tried and lost. We think this difference in the facts does not affect the result. The bringing of the trespass to try title suit and its prosecution to final judgment was, for the reasons shown in the opinion, entirely inconsistent with the right to specific performance.

With this explanation, which we make in the interest of accuracy, we advise that the motion for rehearing be overruled.
      (gn^jFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: SONFIEDD, P. J. PHILLIPS, C. J.

text:
    COTTON v. COOPER.
    (No. 29-2666.)
    (Commission of Appeals of Texas, Section A.
    Feb. 19, 1919.)
    1. Usury <&wkey;16, 78 — Contracts—“Usurious Contracts.”
    A contract, by which defendant, under the guise of purchase of wages to be earned by the borrower in the future, charged 30 per centum a month interest for a loan, is usurious, under Const, art. 16, § 1, fixing the maximum rate of interest at 10 per centum, and under Rev. St. 1911, art. 4980, is void as to the interest.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Usurious.]
    2. Usury <&wkey;100 (1) — Usurious Contracts— Interest.
    Where a contract was usurious, amounts paid as interest are by law applied to the principal sum due.
    3. Master and Servant <&wkey;341 — Malicious Procurement oe Discharge — Evidence.
    Where defendant, under the guise of buying wages to be earned, charged 30 per centum per month for a loan, and, though plaintiff had paid in as interest, which by law was applied to payment of the principal more than enough to discharge the loan, filed an assignment with plaintiff’s employer, knowing the employer’s rule to discharge in such cases, held, that the question whether defendant wrongfully caused plaintiff’s discharge was for the jury.
    4. Appeal and Error &wkey;>1094(l) — Review „ —Court oe Civil Appeals.
    Excessiveness of verdict is ordinarily a question of fact, and the determination of the Court of Civil Appeals is final.
    5. Damages <&wkey;9&wkey;PuNiTiVE Damages.
    The imposition of heavy exemplary damages, where the actual damages recoverable were small, is a fact which ought to be looked to to determine whether passion rather than reason dictated the verdict.
    6. Damages &wkey;>87(l) — “Exemplary Damages” — “Punitive Damages” — Nature oe.
    Exemplary or punitive damages are awarded in the nature of a punishment, not to enrich the injured party, but for public good.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Exemplary Damages; Punitive Damages.]
    7. ¡Master and Servant <&wkey;341 — Exemplary Damages — Award.
    An award of $400 actual damages and $3,-500 exemjjlary damages in favor of an employs whose discharge had been brought about by a loan broker, who, after being paid more than the principal of his loan,, filed an assignment of wages executed by the employer, thus causing the latter’s discharge, held warranted, and not to have been dictated by passion or prejudice.
    Error to Court of Civil Appeals of Fourth Supreme Judicial District.
    Action by Will Cooper against Almon Cotton and another. Judgment for plaintiff was affirmed by the Court of Civil Appeals on appeal of the named defendant (160 S. W. 597), and said defendant brings error.
    Affirmed.
    J. V. Meek, of Houston, and Terrell, Wal-thall & Terrell, of San Antonio, for plaintiff in error.
    Barkley & Green and A. N. Denton, all of Houston, for defendant in error.
   SONFIEDD, P. J.

Suit by Will Cooper, plaintiff, against Almon Cotton and G. E. Cotton, defendants, to recover actual damages in the sum of $700, alleged to have been suffered by plaintiff by reason of his discharge from the service of the railroad company through the wrongful, fraudulent, and malicious conduct of defendants and their agents, and for $5,000 exemplary damages.

Plaintiff alleged that the defendants, falsely claiming that he was indebted to tliem in the sum of $35, filed with the Houston & Texas Central Railway Company, his employers, copies of two written instruments, purporting to be assignments made toy the plaintiff of portions of Ms salary or wages to Almon Cotton; that at the time the said assignments were filed by the defendants the said railway company had in force a custom or rule, to the effect that any employs known to have given ,an assignment or any part of his salary or wages should at once be discharged from its service; that, although the defendants were aware of such rule at the time, and were also aware that at such time he was not indebted to them in any sum, they nevertheless wrongfully, willfully, and maliciously, with wanton disregard of the rights of the plaintiff, and for the purpose of procuring his discharge, filed copies of said assignments, together with notice thereof with the said railway company, and because of the acts of defendants complained of he was discharged by the said railway company from their service, and his wages then due were withheld from him. Trial in the district court before a jury resulted in a verdict and judgment for plaintiff against Almon Cotton for $400 actual damages, and $3,500 exemplary damages.

On appeal the Court of Civil Appeals affirmed the judgment of the district court. 160 S. W. 597.

The following is in part a statement of the facts by the Court of Civil Appeals:

“Almon Cotton is father of G. E. Cotton. G. E. Cotton is 28 years old; ⅜ * * he is married and has four children. Almon Cotton owns and operates what ho calls ‘loan offices’ in many of the Southern states, in Douisiana, Mississippi, Alabama, Florida, Arkansas, and Texas, apparently only where ignorant negro labor is abundant. In some cities he conducted several of these agencies or loan offices, always under high-sounding names, such as the ‘Dixie Loan Company,’ or some name concealing his own identity and calculated to give to the public the impression of a corporation. In Houston, Tex., he operated the Texas Loan Company, the Empire Loan Company, the New York Loan Company, and the Eagle Loan Company. His business was to loan money on chattels and to ‘buy’ salaries or wages. And this was his method: His own office, called ‘Central Office,’ was in one of the large office buildings of the city of Houston. His various loan companies were scattered about to'wn. In general charge of the loan offices he had one L. H. Joyner, who was his general agent and manager, vested with full authority to act at all times. He also had ‘outside men’ whose duty it was, among others, to advise the needy and helpless that they could always get money from one of Cotton's institutions. The interest charged upon loans seems uniformly to be 20 per cent, per month to whites and 30 per cent, per month to negroes. Each office had positive orders not to make a ‘loan* upon salaries or wages, but, instead, to ‘buy’ salaries and wages or any such part thereof as the customer should desire to sell and to take an assignment of such an amount thereof as should be ‘bought’ together with power of attorney to Almon Cotton to collect from the borrower’s employer. Tho advances were made in this manner: The borrower executed his assignment and power of attorney, we will say for $19.50, and was thereupon given $15 in cash. At the end of the month he was ‘permitted’ to collect his own salary and bring in the portion which he had pledged to the loan office. If he desired to retain the money he had borrowed, he did not pay the 30 per cent, interest and renew the obligation. Instead, he went through the formality of paying $19.50 in cash. He then executed a new obligation and assignment and received back $15 of the money paid by him. * ⅜ *
“Appellee, Cooper, in December, 1909, negotiated with appellants’ office, known as the Texas Loan Company, what he thought was a loan of $10 on his salary. The contract he signed was for $13, which, instead of being in form of a loan, was written so that it appeared that he had ‘sold’ that portion of his salary to accrue the succeeding month and also made a power of attorney for the collection of the amount by Cotton. Cooper was a negro brakeman or yardman in the service of the Houston & Texas Central Railway Company, earning about $115 per month. He could not read or write, and the paper which he signed was never read to him. Monthly thereafter,. with perhaps a few exceptions, he renewed his loan in the manner above described, up to the time of beginning litigation with appellant. The amount was increased or was made less in accordance with his needs; it appearing that at least once he was entirely out of debt to Cotton. Ho also had some dealings with another of Cotton’s loan offices. Tho method of doing business was always the same and the rate of interest was always the same. In August of 1911, litigation was begun between appellee and appellant in the courts of Harris county involving the transactions above mentioned. On January 2, 1912, Almon Cotton transferred all his loan business in Texas to G. E. Cotton, his son. The terms of that assignment, briefly stated, were: The consideration was $300,000, all on credit. G. ’E. Cotton executed his note for that sum to Almon Cotton, due on or before two years after date, and bearing 8 per cent, interest. In case the note should not be paid at maturity, G. E. Cotton agreed to convey the business to any one named by Almon Cotton and at the price fixed by him. And it was also agreed that all the moneys collected by G. E. Cotton, whether principal or interest, except necessary operating expenses and a salary of $100 per month to be retained by him for his services, should be ‘turned over to Almon Cotton or placed in the Commercial National Bank of Houston, Tex., to his credit.’ He agreed to apply such money first to payment of interest and next to discharge of the principal. Almon Cottort was a man of large means, while G. E. Cotton was then insolvent and wholly execution proof. No effort was made to show that the business, purported to have been sold to G. E. Cotton, was worth $300,000 or any other sum. At this time the litigation filed by Cooper against Almon Cotton was pending. On January 8, 1912, L. H. Joyner, who claimed he was acting under the advice of J. V. Meek, attorney for Almon Cotton, wrote upon the back of the two salary assignments referred to an indorsement, ‘Without recourse,’ to G. E. Cotton, which was then signed Almon Cotton. Joyner then filed copies of said assignments with the Houston & Texas Central Railway Company, accompanied by a letter asserting that appellee was then indebted to G. E. Cotton, assignee of Almon Cotton, in the sum of $35 upon those assignments. The railway company at once discharged Cooper and retained funds due to him in the sum of $99.60 to satisfy the appellants’ assignments.”

T¡he pleadings and evidence raised the issue as to the true character of the two instruments of date, the 10th day of January, 1912, and whether the transactions evidenced thereby were independent or a continuation of a contract theretofore existing between the parties. These issues were properly submitted to the Jury and the verdict involved the findings that the transactions were a continuation of the prior contract and were loans, made to plaintiff by defendant under the guise of assignments or sales of wages to cloak usury. The verdict involved the further findings that the payments by plaintiff to defendant as interest were sufficient to pay, the principal sum, with interest at the rate of 10 per cent, per annum, and that the purported sale by defendant to G. E. Cotton of his Texas business, including a transfer of the contract or obligation • of plaintiff, was simulated, not intended to, and did not vest title in the said G. Iff. Cotton.

Section II, art. 16, of the Constitution provides:

“All contracts for a greater rate of interest than 10 per centum per annum shall be deemed usurious.”

Article 4980, Rev. St. 1911, reads as follows:

“All written contracts whatsoever, which may in any way, directly or indirectly, violate the preceding article by stipulating for a greater rate of interest than ten per cent, per annum shall be void and of no effect for the amount or value of the interest only; but the principal sum of money or value of the contract may be received and recovered.”'

The contract herein was usurious, and under the above statute was void as to the interest. The amounts paid toy plaintiff as interest were by the law applied to the principal sum due. The rule is thus stated in Loan Association v. Biering, 86 Tex. 476, 25 S. W. 622:

“The law is, that each payment made upon a contract affected with usury is a payment upon the principal, applied by the law, notwithstanding it was paid and received as payment of interest. This is not a question of recovering back usurious interest paid, but it is the application of the payment of such interest to the principal of the debt.”

The jury having found that the amount paid by plaintiff, as.interest, was sufficient to pay the principal sum due, together with interest, it follows that at the time of the filing of the instruments with the railroad company and the notice to the company of the assignment of wages by plaintiff, the-indebtedness had been fully paid, and defendant was without warrant in the filing and the giving of such notice. Rosetti v. Lozano, 96 Tex. 57, 70 S. W. 204, is cited and relied upon by defendant as authority for the proposition that the above x-ule, announced in Loan Association v. Biering, supra, no longer prevails in Texas. It is true, as stated by defendant, in that case it was held that in order to a recovery of the penalty for usury, provided in article 4982, Rev. St. 1911, a direct action, either by an original proceeding or erossi-action, is necessary. This is not a suit for the recovery of interest paid under a usurious contract, or for the penalty for usury. The question of pleading and procedure in such cases does not therefore arise. Plaintiff asserts that the amounts paid by him as interest under the usurious contract are, by the law, applied to the payment of the principal. Rosetti y. Lozano, supra, in no manner questions or overrules the doctrine so announced in Loan Association v. Biering, supra.

Defendant complains of the action of the trial court in submitting to the jury the question whether the discharge of plaintiff by the railroad company was the result of the execution of the instruments by plaintiff, or their filing with the railroad company by defendant or under his direction, contending that it should be held, as a matter of law, that the execution of the instruments was the cause of plaintiff’s discharge from the service.

The railroad company had promulgated the following rule:

“Assignments of wages by power of attorney, or otherwise, is prohibited and will cause discharge ; employés are expected to pay their just debts.”

Of this rule plaintiff had knowledge. The evidence discloses that defendant had for years held numerous instruments of like character, executed by railroad employés, the great majority not having ibeen filed with the railroad company, and there is no evidence of discharges by the railroad company of employés who merely executed the instruments. There is evidence also that it was not in every case that a discharge resulted from the filing of such Instruments; that the rule was not always enforced. One of the general attorneys of the railroad company testified that it was not the execution of a power of attorney that caused the discharge, for the railroad company would not know about it; “but when such employé is unable or unwilling to pay, and they cannot wring any more money out of him, if they turn this power of attorney in to the pay department, it is sent to the operating department and the man loses his position.” The existence of such rule not uniformly enforced, but often disregarded, would not be conclusive, and the question whether the discharge was the result of the execution or of the filing of the instruments was for the jury.

Had plaintiff, in fact, assigned or sold wages to defendant, or had plaintiff been indebted to him at the time of the filing of the instruments evidencing such indebtedness, defendant would have been within his right in the filing, the instruments so authorizing him. If under such circumstances, as a result of the filing, plaintiff had been discharged from the service of the company, no liability would attach to defendant. In such case he would toe exercising, a contract right and the motives actuating him would be wholly immaterial; but at the time of the filing, plaintiff’s indebtedness to defendant had been fully paid and discharged. Defendant was charged with knowledge that the amounts paid him toy plaintiff as interest was by the law applied to the principal. He had knowledge then that nothing was due him from plaintiff, and the authority in the instruments to collect was no longer of any force or effect, and did not authorize the filing. Defendant cannot be heard to say that usury is a matter of defense or offset and could be waived; that, therefore, he could not be charged with knowledge that plaintiff would insist upon usury as a defense or as an offset. The record discloses that prior to the filing of the instruments, plaintiff brought suit against the defendant in a justice court of Harris countyvfor the recovery of usurious interest, the penalty, and for the cancellation of the instruments evidencing the indebtedness. Judgment was rendered in favor of plaintiff. The suit pertained to the very transactions involved herein, and the instruments sought to be canceled by the judgment were those thereafter filed. In that suit the amount paid as interest which plaintiff insisted should be applied to the principal was in evidence. An appeal was taken by defendant from this judgment to the county court of Harris county, and pending this appeal the instruments were filed. By this suit defendant was notified, if notice was necessary, that there was no waiver by plaintiff of his right to have the amounts paid, as interest, applied to the principal, thereby fully discharging all the indebtedness.

The pleadings and evidence sufficiently raised the issue of the recovery of exemplary damages, and the court fully and correctly instructed the jury with reference thereto.

Writ of error was granted herein, because the court inclined to the opinion that the amount of exemplary damages awarded plaintiff was so disproportionate to the actual damages allowed, that the verdict should not be permitted to stand.

Excessiveness of a verdict is ordinarily a question of fact, and the determination by the Court of Civil Appeals is final. Railway Co. v. Goswick, 98 Tex. 477, 85 S. W. 785; Wilson v. Freeman, 108 Tex. 121, 185 S. W. 993, Ann. Cas. 1918D, 1203.

The view taken by the Supreme Court appears to be that the question here is not as to an excess1™ verdict. Exemplary damages, being awarded only where actual damages are found, must bear proportion to the actual damages sustained, and whether or not so proportionate is a question of law.

In the view we take of the verdict after a careful examination of the record, we do not deem it necessary to discuss this question.

In Tynberg v. Cohen, 76 Tex. 416, 13 S. W. 316, the court says:

“It has been said in some cases that exemplary damages should not be disproportioned to actual damages; but it was not meant by this that the one should be in any exact or approximate ratio to the other. All that was meant was that the imposition of heavy exemplary damages, where the actual damages recoverable were small, was a fact which ought to be looked to to determine whether passion rather than reason dictated the verdict."

Exemplary damages are in the nature of a punishment. They are not awarded to enrich the injured party, but are intended rather for the public good. Such damages are recoverable only when there are present elements of aggravation or oppression; where there is malicious, willful, wanton, or reckless disregard and invasion of the rights of another. They are intended as a warning

and an example to prevent the defendant and others from the commission of like offenses and wrongs. Punitive in character and awarded for the public good, their proportion or ratio to the amount of actual damages recovered must depend upon the state of facts in any given case. The court in Tyn-berg v. Cohen, supra, declares it the duty of the court “to carefully determine whether justice between the parties or the welfare of society demands the imposition of such a punishment.”

To the facts hereinabove set out, a part of the statement of the facts by the Court of Civil Appeals, might be added others from the record revealing the nefarious character of the business of the “loan offices.” We will not particularize or set out such additional facts. The record discloses that the “loan offices” controlled by defendant are. conducted in utter disregard of private rights and the public good, and that the system has fastened itself upon many hundred employes of various industries. In the city of Houston alone between 1,000 and 1,500 railroad employes are on defendant’s books. In the great majority of instances the borrowers are from the very ignorant class. Usurious transactions of the most extreme and aggravating type are cloaked and concealed by subterfuge in order to evade the penalties of the law. The powers of attorney executed by those dealing with defendant are as chains binding them to the system. The threat of the filing of these instruments and the consequent loss of employment is kept ever before them, driving them through fear into deeper slavery. In a word, the business is fraught with great evil, not only to the individual, but to the public as well.

While the amount of exemplary damages awarded plaintiff seems disproportionate to the amount of actual damages allowed, in the light of the record, we believe the award fully warranted. In view of the peculiar and exceptional facts' of the case, we conclude that reason, not passion, dictated the verdict, and “the welfare of society demands the imposition of such a punishment.”

We are of opinion that the judgment of the Court of Civil Appeals, affirming the judgment of the district court, • should be affirmed.

PHILLIPS, C. J.

The judgment as recommended by the Commission of Appeals is adopted and will be entered as the judgment of the Supreme Court.
      <§=>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes