author: WALTHALL, J.

text:
    HOUSTON BELT & TERMINAL RY. CO. v. BARGER.
    (No. 448.)
    (Court of Civil Appeals of Texas. El Paso.
    May 13, 1915.
    Rehearing Denied May 27, 1915.)
    1. Negligence <@=101 — Injury to Railroad Emeloyé — Directing Verdict — Comparative Negligence.
    Verdict may not be directed for a railroad, sued for injury to its trainman, unless it can be said, as matter of law, not only that he was guilty, but that it was free, of contributory negligence; as in case of negligence of both damages are to be apportioned.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 85, 163, 164, 167; Dec. Dig. <@=> 101.]
    2. Trial <§=350 — Vebpict—Special Interrogatories — Evidentiary Fact.
    There need not be submitted to the jury a special issue on a matter which is not an ultimate or controlling fact, but merely a minor or evidentiary fact on tbe issues of negligence.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 828-833; Dec. Dig. <@=350.]
    Appeal from District Court, Harris County; A. E. Amerman, Special Judge.
    Action by Frank E. Barger against tbe Houston Belt & Terminal Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Andrews, Streetman, Burns & Logue, Coke K. Burns, and W. L. Cook, all of Houston, for appellant. John Lovejoy and Presley K. Ewing, both of Houston, for appellee.
   WALTHALL, J.

This suit was brought by appellee, Frank E. Barger, to recover damages on account of personal injuries sustained by him while in the employment of appellant, the Plouston Belt & Terminal Railway Company, in the capacity as switchman, and alleged, in substance, that at the time of the accident causing his injuries he was in the ordinary discharge of the duties of his service in or about defendant’s south yards at or near the city of Houston; that in the territory where he was engaged in said service appellant was maintaining a north-bound main line, and about westward of it a parallel south-bound main line, and that with the former it had a lead track which made a junction with said north-bound main line, and extended from it in a southeasterly direction, and into this lead line a number of its tracks ran entering such lead track from the east; that other employés of defendant, with plaintiff, composed the switching crew, including employés in charge of the switch engine, and the switching foreman then in control of other employés of the switching crew and work being done, with authority to direct the other employes of the switching crew in the performance of their duties; that said switching crew was under the command of said foreman engaged in making up a train on the north-bound main line, which was to be run out of such track at a distance of about a quarter of a mile on its main line; that in order to do the work the switch engine had to take ears off the track going into said lead line, and thence run them to said main north line or beyond, and switch them in on such line; that at the time of the injury to plaintiff two cars had, in the course. of such switching work, been placed on said north,line to tbe south of where the accident to plaintiff happened, and other cars had also been placed on this line to the north of said two cars, about fourteen in all; that plaintiff, in the ordinary discharge of his duties, was required to and did guard the south end of said cars on the north main line from trains that might be approaching thereon, and to open or adjust the knuckle at the north end of said two cars on said north main line track, which he attempted to do with the lever, but said knuckle was defective, and would not operate; that it was thereupon his duty to go between said cars so as to shake or manipulate said knuckle with his hand for process of adjustment, by which means a knuckle in such defective condition can sometimes be made to work; that while in the discharge of said service the cars to the north of said two cars, suddenly and unawares to him, moved back against the car he was attempting to adjust, catching him between the cars, causing his injuries; (in the twelfth paragraph) that when he went in between said ears the ears on the north main line to the north of said two cars were standing still, and just before he went in to adjust said coupling, he looked up and saw the switch engine engaged in making up said train on said lead line east of its junction with said north main line, running light, that is, with no cars attached; (thirteenth paragraph) that it was customary in the service, in making up a train such as this, and in the manner it was being made up, for the switch engine, in putting in the last cars it had of a string, to move them back attached to the engine, and not to put them in by kicking, detached from the engine, and, independent of such custom, such detached method was not reasonably safe under the circumstances set out; (fourteenth paragraph) that under said custom said engine, running light, on said lead line, was a practical signal to him that said cars on said main line would not be disturbed, and that he might safely go between them to perform the service of adjusting the knuckles, and upon such custom and information thus conveyed, and upon the exercise of due care by defendant and its employes for his safety, he relied in going between said cars to do such work, and had a right to rely.

In the further averments of the petition it alleged as the proximate cause of plaintiff’s injuries two independent grounds of negligence on the part of defendant: (1) Negligence by its employes in charge of the switching engine in causing the last cars of the string being handled to be kicked, without warning or signal to plaintiff, uncontrolled and. detached from the engine, against the cars of the train standing on the main track, whereby, suddenly and unawares to plaintiff, he was caught between the cars where he was adjusting the knuckles and injured; (2) negligence by its employes, or its switching foreman, who had charge of the switching, in misdirecting or wrongly directing the work of moving the cars, so that such cars were improperly caused or permitted to be run onto said main line by kicking them back with great force and violence, whereby the cars between which plaintiff was adjusting the knuckles were suddenly and unawares to him brought together, and he thereby injured.

The petition then alleged that by reason of the facts alleged, constituting negligence, plaintiff suffered injuries to his right forearm and hand, rendering the arm and hand entirely and permanently useless for manual labor.

The defendant answered by a general demurrer, denials, general and special, covering the allegations of negligence, proximate cause, and the nature and extent of plaintiff’s injuries. Defendant also by special pleas alleged assumed risk and negligence on plaintiff’s part, either contributory or, the sole, proximate cause of the injuries sustained by him. Plaintiff by supplemental petition denied and met the affirmative issues pleaded by defendant. The court submitted the cause to the jury on special issues, and for their special verdict the jury found the facts as follows:

(1) That plaintiff was injured on or about May 27, 1913, substantially in the manner alleged.

(2) That plaintiff was then in the employment of the defendant as a switchman.

(3) That he was then engaged in the. ordinary course and discharge of the duties of his service under such employment.

(4) That defendant was then a corporation operating a railroad in this state.

(5) That plaintiff, at the time he claims to have been injured, was attempting to adjust a knuckle between standing cars of a train being made up on the alleged north main line.

(6) That while plaintiff was then so engaged the ears between which he was engaged were caused at that time to move.

(7) That plaintiff was by such movement caught between said cars and injured.

(8) That the movement of said cars, which were thus caused to move and injure plaintiff, was sudden and unawares to him. ,

(9) That the movement of such standing .cars of the train being made up between which" plaintiff claims he was engaged was caused by cars which were to be put into said train being kicked against said standing cars, that is, run against them detached from the engine and uncontrolled by it.

(10) The ears so kicked were the last of the string and cut in question.

(10a) That it was customary in the business as conducted by defendant, when making up a train such as above inquired about, to push in the last cars of a string or cut attached to the engine, instead of kicking them in.

(10b) That such custom applied, regardless of whether there was sufficient room to kick the ears in if desired, and regardless of whether there was other work for the engine to do before finally coupling up and pulling on the train being made up.

(11) That the movement of said standing cars by the kicking of said last-mentioned ears was done by , the persons who caused such movement of them without giving,any warning or signal to plaintiff before the same happened.

(12) That the persons who caused such kicking and movement of the cars were in the employment of the defendant as part of its switching crew in that behalf.

(13) That such persons were then acting for defendant within the scope of such employment.

(14) That the act or conduct of said employes of defendant in kicking in said cars without warning or signal to plaintiff was negligence towards him; that is, a failure to exercise toward him such care as an ordinarily prudent person would have exercised under the same or similar circumstances.

(15) That such negligence was a proximate cause of alleged injuries to plaintiff.

(16) That said employes, in the exercise of ordinary care, could reasonably have foreseen or anticipated the alleged injury to plaintiff, or some like injury, as a natural and probable consequence of kicking in the cars complained of in the manner as done.

(17) That' the ears complained of, which plaintiff claims were the last of the cut, were caused or permitted by defendant’s engine foreman of the switching crew in question to be run by the kicking process into the north main line.

(18) That such engine foreman caused or permitted such movement of said cars to be made so as to strike said standing ears with great force and violence.

(19) That the movement of the complained of ears into said north main line was improper under the attendant circumstances.

(20) That such improper movement of the complained of cars was due to misdirection of the work of moving the cars in question by said engine foreman.

(21) That it was within the course and scope of said engine foreman’s employment by defendant to control and direct such switching work for it.

(22) That such conduct of said engine foreman in misdirecting or wrongly directing the work of moving such ears was negligence, as before defined, on his part towards plaintiff.

(23) That such negligence on the part of said engine foreman was a proximate cause of alleged injuries to plaintiff.

(24) That a person of ordinary care, in the situation of said engine foreman on the occasion in question, could reasonably have foreseen or anticipated the alleged injury to plaintiff, or some like injury, as a natural and probable consequence of the misdirection of the work of moving the- cars in question on his part.

(25) That the sum of money which, presently paid, would fully and fairly compensate plaintiff for injuries which he both alleged and proved to have suffered on the occasion in question (according to the measure submitted by the court) is $8,000.

(26) That plaintiff’s said injuries did not proximately result from a risk, danger, or hazard, or from risks, dangers, or hazards, ordinarily incident to his employment.

(27) That plaintiff did not fail to use ordinary care by going between the cars, or placing his hand in a position of danger upon or about the coupling apparatus, at a time when he knew or must necessarily have known that the two cars in question had not been switched to the main track.

(28) That, if plaintiff noted the engine running light just before he went in between the ears, and thereupon assumed that the last two cars of the cut had been placed, such assumption was not negligence on his part.

(29) That plaintiff, on the occasion in question, did not go in between the cars mentioned in his petition, or place his hand in a position of danger upon or about the coupling apparatus at a time when a person of ordinary prudence would have anticipated that the last two cars of the «ut might probably be moving towards and against the standing cars in such manner as to injure him.

(30) That plaintiff did not fail, on the occasion in question, to exercise ordinary care for his own safety in any act or omission, as alleged by the defendant.

(30a) That the plaintiff was not guilty of negligence in endeavoring to adjust the knuckle, which he says would not work, rather than endeavoring to arrange for the coupling by means of the apparatus on the other car.

(30b) That negligence on plaintiff’s part in the respect mentioned in the next preceding paragraph was not a proximate cause of the injuries sustained by him.

(31) That negligence on the part of plaintiff, as submitted by the court, was not the sole proximate cause of alleged injuries to him.

(32) That negligence on the part of plaintiff, as submitted by the court, was not a contributing cause of alleged injuries to plaintiff.

(33) That the damages, as found, were not subject to diminution by any negligence attributable to plaintiff.

The trial court, upon the verdict, gave judgment for $8,000 in plaintiff’s favor, from which the defendant prosecutes this appeal.

Appellant’s first, second, and third assignments of error claim that the court erred in not peremptorily directing the verdict in defendant’s favor. In the first assignment it is asserted, as a matter of law, that as plaintiff went in between the cars in question and into a position of danger, at a time and under such circumstances as that the other employés of the defendant in said crew could not reasonably have anticipated that he would be in a position of danger, he should not recover. In the second assignment it is asserted that, as a matter of law, if there was any negligence proximately causing plaintiffs injuries, it was the negligence of plaintiff himself, and was not contributed to, or aided by, any negligence on the part of any of the defendant’s employes. In the third assignment the claim for peremptory instruction is based on the proposition that, as a matter of law, and under plaintiff’s own testimony, the sole, proximate cause of his own injury was negligence on his part in assuming from the fact that he saw the engine running light on the lead that all the cars of the cut had actually been placed and were standing still.

To sustain the appellant’s position in any one of its first three assignments, it would have been necessary for the trial court to have held, and for this court to now hold, that, as a matter of law, the plaintiff, in going between the cars at the time he did, and under the circumstances that he did, was guilty of negligence which was the sole, proximate cause of his injuries. If the appellant was guilty of any negligence at all, however slight, which contributed to cause the injury, the position of appellant would not be ten-, able, as in that event the damages resulting would be distributed in proportion to the negligence of each. AA'e have read the record. containing the evidence of the witnesses with much care, and believe that the issues of negligence of both appellant and appellee were issues properly to be presented to, and determined by, the jury, and that it would have been error for the trial court not to have submitted the issues to the jury. The issues of fact relied upon by appellant and appellee as constituting negligence and proximate cause were specifically and clearly submitted to the jury and findings made, as herein set out, and their findings are not without evidence to support them. We have examined the authorities referred to by appellant under these assignments. It would extend this opinion to too great length and would serve no good purpose to review them. Suffice it to say that, in our opinion, they .do not sustain appellant’s contention that it would be negligence, as a matter of law, and at the time of moving the cars that caused the injuries, for the appellee to go in between the cars in question, though in a position of danger, in the discharge of an urgent duty, although it be at such time and under such circumstances as that other employés of the appellant in the yard switching crew might not reasonably have anticipated that appellee would be in a position of danger, and regardless of the question of whether appellant was negligent. Now, if it were true, as a matter of law, that any negligence on the part of Barger in going in between the cars to adjust the knuckle would necessarily relieve the appellant of any possible question of negligence and liability therefor, and if the trial court and this court could say that there is no evidence in the record to sustain the fact of negligence on the part of appellant as found by the jury, and could say that the evidence shows negligence on the part of Barger in performing the service of going in between the cars at the time he did, contrary to the jury’s findings, there might be something in appellant’s propositions. But we cannot so hold either as propositions of law or fact. The assignments are overruled.

On the trial appellant tendered to the court its specially requested issues Nos. 6, 8, and 9, all of which the trial court reftiscd to submit, and the court’s refusal to submit them constituted, respectively, appellant’s fourth, fifth, and sixth assignments of error.

The sixth issue reads as follows:

“Did Barger assume from the fact that he saw, if he did, an engine running light on the lead, that all of the cars had been placed?”

The eighth issue reads as follows:

“Was there a custom in defendant’s service to. the effect that the last cars of a cut should be followed by the engine when switched, rather than kicked, where there was sufficient room to kick the cars in if so desired, and where there was other work for the engine to do before finally coupling up and pulling on the train being made up?”

The ninth issue submitted reads:

“If there was any such custom as that mentioned in the next preceding question, did plaintiff, Barger, rely upon same in going between the cars on the occasion in question?”

Appellant asserts that the sixth special issue tendered was material to the defense, upon the issues of negligence and proximate cause, both of plaintiff and defendant; and its third proposition under the fourth assignment is to the effect that, the trial court nowhere in the charge given having submitted the requested issue, it was error to refuse it. A careful examination of the pleadings of plaintiff and defendant does not seem to us to make the issue as to whether Bar-ger assumed from the fact that he saw an engine running light on the lead that all the cars had been placed a determinative fact that caused him to think it safe for him to go in between the cars to adjust the knuckle. We do not find the issue so sharply presented in the pleadings as to make a finding on the issue, had it been presented to the jury, and a finding made against plaintiff so material as to cause a reversal. The issue which the pleadings tender is that the custom which obtained in making up a train was for the engine in putting in the last cars to move them back attached to the engine, and that, independent of such custom, to run the last cars' back detached from the engine was not reasonably safe under the circumstances alleged, and that, when Barger saw the engine running light on the lead, that fact was a signal to him that the cars on the main line would not be disturbed, and that it was upon such custom and information conveyed to him by the engine running light on the lead that he relied for safety. The answer denied that such a custom obtained, and, as a matter of course, denying the custom, or even a qualified custom as inquired about in the eighth special issue tendered, necessarily denied that the switch engine running light on the lead was a signal to Barger that the cars on the main line would not be disturbed, and that seems to be the only issue tendered in the pleadings that is at all kindred to the special issues submitted. But, however that may be, on issues submitted, the jury found against defendant’s contention as to the custom alleged that it did obtain, and that in violation of the custom the employés of defendant, in causing the last cars of those being handled and put into the string to be kicked with great force and uncontrolled and without warning or signal to plaintiff of any kind, whereby he was caught between the cars, when and where he was in the discharge of a duty to defendant, and that in doing so defendant was guilty of negligence proximately causing plaintiff’s injuries, and that while performing said service Barger was exercising ordinary care for his own safety. And, while defendant’s answer did not admit a qualified custom of kicking the cars where there was sufficient room, and no issue was made in the pleadings on a qualified custom as submitted in special issues 8 and 9, above, the court sufficiently submitted the issue No. 10b, and the 'jury found against appellant. We think the court could, without error, have refused to submit to the jury the special findings as to the custom alleged, or what Barger assumed or did not assume from a failure to observe the custom, under the pleadings that, independent of the custom alleged, to kick the cars down the line without warning, where it was known plaintiff might be between the cars performing a duty to defendant in adjusting the knuckles on a defective car, would not be a reasonably safe proceeding, and that it would be negligence to do so ; such custom not being of an ultimate or controlling fact, but merely a minor or evidentiary fact on the issues of negligence. The failure of the court to submit defendant’s special issue 6, it seems to us, could not have the effect to produce an improper judgment.

We find no reversible error, and the assignments are overruled.

The case is affirmed.
      other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: DUNKLIN, J.

license: Public Domain

text:
    TEXAS & P. RY. CO. v. DE LONG et al.
    (No. 8106.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    March 27, 1915.
    Rehearing Denied May 1, 1915.)
    1. Trial <@=296 — Instructions—Weight or Evidence — Cure by Other Instructions.
    In an action for delay and injury to a shipment of live stock an instruction for plaintiff, if it was found that the stock was damaged in any of the ways alleged in the petition, and if such injuries proximately resulted from defendant’s negligence, was not objectionable as being on the weight of the evidence, or in failing to direct a finding for defendant, in the absence of proof of the affirmative of such issues, where such matters were contained in another instruction given.
    (Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 705-713, 715, 716, 718; Dec. Dig. <@= 296.J

      2. Trial <@=260 — Requested Instructions— Instructions Already Given.
    It is not error to refuse an instruction,' where the substance thereof has already been given in another.
    [Ed. Note. — Por other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. <@= 260.]
    3. Carriers <@= 229 — Carriage oe Live Stock — Measure oe Damages.
    In an action for injury to a shipment of live stock, the measure of damages is the difference between the market value of the animals upon their arrival at destination and what would have been their value at the destination, had they been transported with ordinary care and dispatch.
    (Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 930, 963, 964; Dec. Dig. <@= 229.]
    4. Trial <g^244 —Instructions—Instructions on Evidence.
    An instruction emphasizing evidence is properly refused.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 577-581; Dee. Dig. <@=244.]
    5. Evidence <@=3543 — Opinion Evidence — Qualification oe Witness.
    In an action for delay and injury to a shipment of live stock, a witness engaged in the wholesale buying and selling of horses and mules, who had made shipments to destination, and who testified that the market to which he shipped was practically the same as at other places in that section of the country, was properly qualified to testify that the market value of the shipment was greater at destination than at the point of origin of the shipment.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2356^-2358; Dec. Dig. <@=3543.]
    Appeal from District Court, Tarrant County; R. H. Buck, Judge.
    Action by R. S. De Long and another' against the Texas & Pacific Railway Company. Erom a judgment for plaintiffs, defendant appeals.
    Affirmed.
    Thompson & Barwise and A. C. Wood, all of Et. Worth, for appellant. Arnold & Arnold, of Graham, and R. F. Milam and Stephens & Miller, all of Ft. Worth, for ap-pellees.
   DUNKLIN, J.

R. S. and J. H. De Long shipped 28 head of horses and mules from Ft. Worth to Troy, AlaT, and this suit was instituted by them against the Texas & Pacific Railway Company, the initial carrier, for damages for the alleged negligence of the initial carrier and other railway companies-handling the animals en route. The negligence charged was predicated upon allegations of unreasonable delays, failing to furnish opportunities for proper feeding and watering the stock, and in suddenly starting and stopping the cars, thus causing the animals to be thrown against each other and against the sides of the cars in such manner as to bruise and injure them. The animals moved over three other railroads besides that of the defendant, and some six days was consumed in making the trip. In a trial before a jury, plaintiff recovered judgment for $1,-6-14.77, from which the defendant has appealed.

The second paragraph of the court’s charge to the jury reads:

“If you believe from the evidence that any of plaintiffs’ horses and mules in question were damaged while being carried from Ft. Worth, Tex., to Troy, Ala., in any of the ways alleged by plaintiffs in their petition, or if one of said horses was injured and died as plaintiffs allege, and if said damages or injuries, if any, were the proximate result of the negligence of any of the railroad companies over whose road said stock was transported, or of the negligence of the agents or employes of any of said railroad companies, you will find for the plaintiffs and determine the amount of the damages under the instruction hereinbelow given you.”

By one assignment this charge is assailed as being upon the weight of the evidence, and by another that it was erroneous in failing to contain an instruction in effect that, in the absence of proof to sustain the affirmative of the issues therein submitted, a verdict should be returned for the defendant. By special instruction No. 3, requested by appellant and given by the court, the jury were expressly told that unless they should believe from a preponderance of the testimony that the defendant or its connecting carriers was or were guilty of negligence in some of the respects charged by the plaintiffs in their petition, then a verdict should be returned in favor of the defendant. This is a sufficient answer to both of the assignments now under discussion, since it submits as a controverted issue for the determination of the jury whether or not the defendant and its connecting carriers were guilty of negligence in some of the respects alleged by the plaintiffs, and is the converse of the instruction contained in paragraph 2 of the main charge.

Requested instructions Nos. 4, 5, and 8, the refusal of which is also assigned as error, were substantially to the same effect as appellant’s special charge No. 3, which was given, and there was no error in refusing to give them for that reason.

There was no error in refusing appellant’s request for an instruction upon the burden of proof, since in the court’s main charge that burden was expressly placed upon the plaintiffs.

Appellant requested another special instruction, which was in effect that if the horses recuperated after their arrival at destination, and after such improvement it developed that their injuries during shipment were not so great as appeared upon their arrival, then in estimating plaintiffs’ damages the jury should take into consideration such improved condition of the animals. The true measure of plaintiffs’ damages was the difference between the market value of the animals upon their arrival at destination in the condition they were in at that time and what would have been their value at such destination had they been transported with ordinary care and with reasonable dispatch ; and although the jury in determining that issue could take into consideration the evidence referred to in the requested instruction, yet such an instruction would have given special emphasis to the evidence, and therefore would have been improper.

By two other requested instructions appellant sought to have the jury told that railway companies are not required to forward live stock at any particular time or on, any particular train, but only to exercise ordinary care and dispatch in the handling of such shipments. There was no error in refusing these instructions, because in the court’s charge the jury were told that plaintiffs’ right to recover depended upon a showing of negligence in some of the particulars alleged, and that unless such negligence was proven a verdict should be returned in favor of the defendant.

W. O. Rominger, a witness for the plaintiffs, testified that the market for horses and mules generally in Alabama and Georgia was supposed to be higher than in Ft. Worth, although he was not in Troy, Ala., or Montgomery, during the year that the shipment in question was made. Objection was urged to this testimony upon the ground that it was irrelevant and immaterial, and upon the further ground that, as the witness was not in Troy during the year of the shipment, he was not qualified to give the opinion stated. The witness, who resided in Ft. Worth, testified that he was engaged in the wholesale business of buying and selling horses and mules, and kept up with both wholesale and retail prices everywhere; that he had shipped a great many horses and mules to Alabama and Georgia; that every year he made such shipments to Montgomery and other places in that portion of the state, where he sold the shipments; that the market in Montgomery was practically the same as at other places in that section of the country; and while he did not get market statistics, yet from such sales by him, as well .as from reports made to him by other dealers in mules and horses, he knew that the market value of horses and mules in Troy at the time in controversy was higher than in Ft. Worth. We are of the opinion that this was a sufficient qualification of the witness to support the action of the court in overruling the objection.

Furthermore, the witness did not give any estimate of value of the animals shipped to Troy, Ala., either in the condition that they arrived or in the condition they should have arrived. In fact, it appears that he knew nothing of this particular shipment, and his testimpny that the market value of horses and mules was higher in Alabama and Georgia than it was in Et. Worth does not seem to have been controverted by the testimony of any witness. Further still, appellant has pointed out no evidence of the value of the animals in Et. Worth, in the absence of which the error, if any, in admitting the testimony of Rominger, would be harmless at all events, since the measure of plaintiffs’ damages, to wit, the depreciation in the value of the animals, would be the same, whether the market value, of such animals generally was lower or higher in Troy than in Et. Worth.

One of the plaintiffs testified that, in order to get a good run for the shipment, he and defendant’s agent at Ft. Worth picked out a route for shipment which the agent thought was a good run and over which he could get a good run, with not more than two stopovers. Objection was urged to this testimony as relating to a special contract for transportation of the animals, in the absence of any pleading on the part of the plaintiffs to sustain the same. We fail to see how it could be said that this evidence was harmful to the defendant in any event. The court did not submit any special contract; the only issue submitted as a basis for a recovery being that of negligence. Furthermore, it seems that the shipment left Ft. Worth on the very train contemplated, which was considered a fast train.

By two other assignments appellant insists that the amount allowed by the jury as damages was excessive. After a careful examination of the testimony, we are convinced that the evidence was ample to support the verdict, and hence these assignments must be overruled.

The judgment is affirmed.
      igcshfor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HALL, J.

text:
    McCOLLOM et al. v. DOLLAR.
    (No. 781.)
    (Court of Civil Appeals of Texas. Amarillo.
    May 1, 1915.
    Rehearing Denied May 29, 1915.)
    1. Corporations <@=348 — Action against Directors — Judgment against Corporation.
    The directors of a corporation not only having the right to control the defense of an action against it, but the duty to do so resting on them, the facts alleged in the petition tending to also make them personally liable, the judgment rendered against it is admissible in an action to hold them personally liable on the same matter.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. § 1491; Dec. Dig. <§=348.]
    2. Corporations <@=348 — Action against Directors — Findings in Action against Corporation.
    The findings, in an action against a corporation in which judgment was rendered against it, are admissible against its directors, in an action to hold them personally liable on the same matter.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. § 1491; Dec. Dig. <^=348.]
    3. Corporations <@=306 — Misappropriation —Liability of Directors — Evidence.
    Evidence, in an action against directors of a corporation, held to show that they knowingly permitted funds, collected for and belonging to another to be appropriated to the corporation’s use, rendering them personally liable.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1457, 1458; Dec. Dig. <@=306.]
    4. Appeal and Error <@=1051 — Harmless Error — Admission of Evidence.
    Any error in admitting findings made in another action is harmless; the facts found being shown by other uncontroverted evidence.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 4161-4170; Dec. Dig. <S= 1051.]
    Appeal from District Court, Floyd County; L. S. Kinder, Judge.
    Action by J. F. Dollar against C. R- Mc-Collom and others. Judgment for plaintiff, and defendants appeal.
    Affirmed.
    Mathes & Williams, of Rlainview, for appellants. A. P. McKinnon, of Floydada, for appellee.
   HALL, J.

Prior to the 18th day of September, 1913, appellee, plaintiff below, sued the Lockney Supply Company, a corporation, and R. L. Wallingford, trustee, to whom all the assets of the corporation had been assigned for the purpose of paying the debts thereof, and joined the appellants, who had been the directors of said corporation, as its codefendants. On the date mentioned, the court sustained a general demurrer to the petition, dismissing appellants from the suit. The case proceeded to judgment against the Supply Company and Wallingford, which judgment was reversed in part and affirmed in part 'by this court. Dollar v. Lockney Supply Co., 164 S. W. 1076. Plaintiff, Dollar, amended his petition, and upon the second trial, before a jury, the court peremptorily instructed a verdict for him.

The first two assignments present as error the action of the court in admitting in evidence against appellants the judgment recovered against the Lockney Supply Company upon a former trial. The issues between appellee and all of the defendants on the first trial are fully set out in the opinion on the former appeal, and will not be repeated htere. Upon the second trial, the appellee alleged, further, that after the court sustained the exception of the appellants, judgment was rendered in favor of appellee against the Lockney Supply Company, for $1,008.12, with legal interest; that said judgment was an adjudication of all the matters alleged in plaintiff’s petition as against the Lockney Supply Company, and as to the indebtedness of said several parties mentioned in said petition on account of the shipment of said cotton, as also the assignment of said several claims of said several parties to the plaintiff ; that the allegations showing said indebtedness are made for the purpose of showing the nature of the transaction between said several parties and the said Supply Company. Under these assignments, the proposition is urged that because the judgment introduced in evidence was entered after appellants had been dismissed from said suit on demurrer, prior to the trial in which the judgment was rendered, it was not binding upon them because it was ex parte, hearsay, and secondary evidence, and because defendants were not parties to said judgment. In our opinion this proposition is not sound. 2 Black on Judgments, § 583, in discussing the effect of a judgment against the corporation upon the rights of stockholders, says:

“Every member of a corporation is so far privy in interest in a suit against the corporation, that he is bound by a judgment against it. This doctrine has also the sanction of the United States Supreme Court, and is approved and accepted in many of the states, as well as in England. A recent text-writer has placed the rule upon a basis of reasoning which appears ■ impregnable, in the following language: ‘A judgment obtained against the corporation is certainly conclusive (until reversed for error or impeached for fraud) in a suit to charge the stockholders upon their unpaid subscriptions, and by analogy it should also be held conclusive in a suit to charge them upon their additional individual liability to creditors. It must be borne in mind that a corporation is composed of its stockholders, and that a judgment obtained against the corporation is in reality a judgment obtained against the stockholders in their corporate capacity. There is no reason why the members of a corporation should be allowed to contest a creditor’s claim twice, once in a suit against the corporation through the corporate agents and again in a suit brought to charge them individually. If the judgment against the corporation was obtained by fraud or through collusion with the company’s agents, stockholders may obtain relief through equitable proceedings.’ ”

Quoting from 7th Enc. of Evidence, 825, it is said:

“As to when a person is a party to an action so as to be bound by the judgment rendered therein, the authorities sire not entirely in accord. Some hold that he must be named as a party on the record; others that those are parties who are directly interested in the subject-matter, have a right to make a defense, control the proceedings, examine and cross-examine witnesses and appeal from the judgment; while others hold that those are to be treated as parties who are interested in the suit and have knowledge or notice of its pendency.”

It is stated in 23 Cyc. 1267, that a judgment recovered against a corporation is generally held to be conclusive evidence in a subsequent suit against a stockholder to collect the balance due on his subscription for stock, or to enforce' his personal liability for the debts of the corporation, citing Cole v. Adams, 19 Tex. Civ. App. 507, 49 S. W. 1052. In Saxlehner v. Eisner (C. C.) 140 Fed. 938, the doctrine is announced that the executive officers of the corporation, who were large stockholders and had full management of its affairs, and instigated and controlled its action in willfully infringing the complainant’s trade-mark, are jointly and severally liable with it for the infringement; and, where they directed and controlled its defense when sued therefor, the final decree in a suit is conclusive on them as to the matters adjudicated, including the damages found due complainant on an accounting, and that a suit will lie against such executive officers to recover the amount of such decree from them individually, when through their control and influence they caused the corporation to transfer its property and to declare and pay dividends pending the suit against it by which it was rendered insolvent.

It was held, on a former appeal of this case, that corporate directors who commingled money collected for another with the corporate funds, contrary to the instructions of the owner of the fund, or who knowingly permit their employés to do so, resulting in the loss of such funds, are personally liable therefor, and that if they knowingly appropriated such fund to the use of the corporation, or permitted another to do so, they are jointly and severally liable with the corporation therefor. We think, under the authorities cited, the judgment was admissible. The appellants unquestionably had the right, as directors of the corporation, to control this suit, and since the facts alleged tended to make them liable as trustees, the duty rested upon them to do so. In our opinion, the circumstances surrounding the transaction bring it within the rule above announced. Nuckels v. Robinson-Pettet, 159 Ky. 214, 166 S. W. 972; Estey & Camp v. Luther, 142 S. W. 649; Todd v. Ferguson, 161 Mo. App. 624, 144 S. W. 158.

The next question raised is the action of the court in admitting in evidence certain findings of fact filed by the court upon the first trial. We are inclined to the opinion that this was not error. Legrand v. Rixey, 83 Va. 862, 3 S. E. 864; Last Chance Min. Co. v. Tyler Min. Co., 157 U. S. 683, 15 Sup. Ct. 733, 39 L. Ed. 859. The appellants introduced no testimony whatever.

O. R. McCollom, as a witness, called by appellee, testified in part that he was one of the directors named in the charter of the Supply Company; that he knew about the shipment of cotton mentioned in plaintiff’s pleadings; that a meeting of the board of directors was called once a month, at which all of the directors were usually present; that such a meeting was called after the company commenced to ship cotton for these parties; that the matter was spoken of at these meetings like any other business, and the fact that such shipments were being made was mentioned; that he was secretary of the company and his father, president; that Dr. Pennington was one of the directors ; Hadley was also a director and a clerk in the store; that he was connected with the actual management of the business. Before the execution of the deed of trust or assignment, the settlement with the farmers, on account of the cptton shipments, was mentioned. At that time he knew the cotton had been shipped, and that no settlement had been made with the plaintiffs; that the cotton was sold by Wm. D. Cleveland & Sons, on or about the 1st of February, just before the assignment was executed ; that the cotton was shipped in the name of the Lockney Supply Company, and that the plaintiffs have never been settled with; that all of the directors knew the company was shipping cotton for the farmers; that the books of the concern showed all these facts. Under the agreement, if the cotton sold for more than the amount advanced to the owners thereof, they were to have the overplus, less the expenses.

O. R. McCollom testified that he was one of 'the directors of the company and was president. It was reported at one of the meetings that the business was beginning to get in' bad shape. The cotton shipped was mentioned at these meetings. Mr. Tanner was telling him about the shipments. He thought 'it was mentioned when the directors were present. He knew, up to the time the cotton was sold by Cleveland & Sons, that there had been no settlement with the plaintiffs. The matter of protecting the owners of the cotton was mentioned at Dallas. When the cotton was sold it was credited on the account of the Lockney Supply Company with Wm. D. Cleveland & Sons, and that no settlement had been made with Cleveland.

The appellee testified that he was the as-signee of the claims held by the parties who owned the cotton; that he had talked with both McCollum and his son, Hadley and Dr. Pennington, after the cotton was shipped, and before it was sold; that he demanded a settlement with these parties, and was informed that they were in no position to make a settlement. Dr. Pennington put him on the lookout about the cotton; said there was likely to be trouble about it. McCollum told him along in January that the thing was a little bit shaky in regard to their cotton.

We think these facts, together with the 'judgment, which we have held was properly admitted, are sufficient to sustain the judgment now appealed from. The facts above recited were not controverted; and, should we admit that the court erred in permitting the findings on the former trial to be introduced as evidence, the error, if any, was harmless. The court did not err in directing a verdict, and the judgment is affirmed.
      <g^Por other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    SENTERS v. FIRST STATE BANK OF WEATHERFORD.
    (No. 8178.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    May 1, 1915.)
    ■Landlord and Tenant <§=>262 — Lien oe Landlord — Evidence.
    Whether supplies furnished a tenant necessary to enable him to make a crop were furnished on the credit of the landlord, within Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5475, giving a preference lien for supplies, or under an agreement binding the landlord as surety only, and hence not to create a preference lien, held under the evidence, for the jury.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 955, 969, 1049-1058; Dec. Dig. <@=>262.]
    Appeal from Parker County Court; T. F. Temple, Judge.
    Action by the First State Bank of Weath-erford against D. E. Senters and another* From a judgment for plaintiff- against defendant named, he appeals.
    Reversed and remanded.
    Hood & Shadle, of Weatherford, for appellant. H. C. Shropshire, of Weatherford, for appellee.
   DUNKLIN, J.

J. R. Park and Henry M. Pope executed a promissory note in favor of the first State Bank of Weatherford for the principal sum of $758.40. The note was dat- . ed November 18, 1912. Park was then a tenant upon Pope’s farm, and contemporaneously with the execution of the note, and to secure its payment, Park executed a chattel mortgage in favor of the bank upon the cotton crop to be grown by him during the following year of 1913. On November 19, 1912, Pope alone executed another note in favor of the bank in the sum of $220, together with his chattel mortgage to secure the same on— “all rents of cotton, being one-fourth of all that is to be raised on my farm next year, 1913, situated about one and one-half miles northwest from Millsap, Texas. Said cotton crop is to-consist of at least one hundred acres.”

During the year 1913, Park made and harvested 12 bales of cotton, of which amount 3 bales were turned over to Pope as rents; his contract with Pope being that Pope was to receive one-fourth of the cotton so raised as rents. Five bales pf the remainder of the crop were sold by Park to D. E. Senters. The-proceeds of one of these bales was paid over to the bank, and practically all of the balance was paid to D. W. Senters, a merchant,', as a credit upon an account for goods fur-1 nished to Park during the year 1913. Having reduced said notes to judgments, the-bank instituted this suit against D. W. Sen-ters and D. E. Senters to recover the value of four bales of the cotton so sold to D. E. Senters, upon the claim asserted in the petition that the defendants had wrongfully converted said cotton to their own use with notice, at the time, of the chattel mortgages-thereon in plaintiff’s favor and noted above. Judgment was rendered in favor of the bank against D. E. Senters for the amount claimed in plaintiff’s petition, but denying a re7 covery against defendant D. W. Senters, and. D. E. Senters has appealed. The trial was before a jury, and the judgment rendered, was upon a verdict returned in compliance with a peremptory instruction from the court.

The evidence showed that during the year 1913, D. W. Senters was a merchant, and D. E. Senters, his son, who was employed as a clerk in the store by his father, was also engaged in the business of buying cotton upon his own account; that the goods furnished to Park during the year 1913 were charged on the books of D. W. Senters to the account of Pope. The uncontroverted evidence showed that the goods so furnished to Park were supplies necessary to enable him to make and gather his crop during the year 1913. The defense urged by D. E. Senters upon the trial was that the goods so received by Park were in fact furnished to him by his landlord; Pope, within the meaning of article 5475, Yemon’s Sayles’ Tex. Civ. Stat.; that Pope had a landlord’s lien given by that statute superior to plaintiff’s mortgage lien upon the cotton so sold to D. E. Senters, and therefore Senters would not be liable for conversion, in view of the fact that the proceeds of the four bales of cotton in controversy were applied in payment of the landlord’s debt for such supplies at his instance. The peremptory instruction against D. E. Senters was upon the theory that the evidence showed conclusively that the goods furnished to Park were sold by D. W. Sen-ters to him upon the agreement of Pope to be surety therefor; in other words, that Pope’s liability was not that of principal ob-ligor, but as surety or guarantor only, and hence it could not be said that Pope furnished the goods to Park within the meaning of the statute referred to above, and- had no landlord’s lien upon the cotton in controversy. The only witness upon the trial who testified to the negotiations between Pope and D. W. Senters relative to furnishing the goods was D. W. Senters himself. Without attempting to set out all of his testimony bearing upon that issue, we have reached the conclusion that, while some of the statements made by the witness on the stand, in connection with the fact that both Pope and Park executed a promissory note to D. W. Senters to cover the unpaid balance on the account for said goods, tended strongly to show that Pope’s agreement with D. W. Senters was that he would be surety only for the supplies that D. W. Senters agreed with Pope to furnish to Park, and which were furnished, yet other statements by the witness, in connection with certain circumstances, including the fact that the goods were charged upon the books of D. W. Senters against Pope alone, were sufficient to make the issue a controverted one, to be passed upon by the jury, and that the court erred in taking the same from the jury by the peremptory instruction.

Eor that error the judgment is reversed and the cause remanded for another trial of the issues between the bank and D. E. Sen-ters. The judgment in favor of D. W. Sen-ters is undisturbed.
      <@rsoFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    BRAUN v. HICKMAN et al.
    (No. 8055.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Dec. 5, 1914.
    On Motion for Rehearing, March 27, 1915. Second Motion for Rehearing Denied April 24, 1915.)
    1. Vendor and Purchaser <&wkey;285 — Liens and Security — Purchase-Money Notes.
    A payee of purchase-money notes, given on a land sale wherein a vendor’s lien was reserved, deposited them as collateral with a corporation to secure his own note. The corporation sent the notes to its bank to be collected as they matured. Two of the notes were paid by the maker at maturity with money borrowed from a third person, and were surrendered to the maker without being marked paid, and subsequently sent to such third person, who obtained the corporation’s indorsement thereon to himself. The payee brought suit on the remainder of the notes, in which suit the third person intervened and prayed that he be sub-rogated to the payee’s rights as to the notes paid by him, and be given a lien equal to that of the-payee as against the land. Bold that, in the absence of evidence that the value of the land was insufficient to pay all the notes, it was not error to subordinate the intervener’s lien to that of the payee.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 809-807; Dec. Dig. <&wkey;285.]
    On Motion for Rehearing.

      2: Vendor and Purchaser <&wkey;261 — Security and Liens — Puroiiase-Money Notes.
    Where a third person took up two of several promissory notes secured by a vendor’s lien and paid them, receiving the notes from the maker in return, the third party co.uld not thereby claim a lien superior to that of the payee of the other notes, the notes being paid as far as the payee was concerned, where he had never transferred them to the third party, nor agreed that the third party should be sub-rogated to the lien securing them.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 674-686, 688-695; Dec. Dig. &wkey;»261.]
    Appeal from District Court, Jones County; John B. Thomas, Judge.
    Action by N. W. Hickman and others against G. A. Schneider and another, rin which A. C. Braun intervened. From a judgment for plaintiffs, intervener appeals.
    Affirmed.
    W. S. Pope, of Anson, and Ocie Speer, of Ft. Worth, for appellant. Davenport & Davenport, of Stamford, for appellees.
   DUNKLIN, J.

On January 9, 1908, N. W. Hickman sold a tract of land to 6. A. Schneider, in part consideration for which conveyance Schneider executed his five promissory notes, numbered, respectively, from 1 to 5, inclusive, the first four of which were for $540 each and the last for .$340. The notes were made payable, respectively, in the order of their numbers, from one to five years after date. As a further consideration for that conveyance Schneider assumed the payment of an indebtedness in the sum of $500 secured by a mortgage then outstanding against the land in favor of the American Freehold Land Mortgage Company of London. A vendor’s lien was expressly retained, both in the deed of conveyance and in the purchase-money notes, to secure the payment of those notes. Notes Nos. 1 to 4, inclusive, were made payable to N. W. Hickman, and note No. 5 was made payable to J. H. Morris, by reason of the fact that he owned some interest in the land conveyed.

Hickman instituted this suit against Schneider and Morris, in which a personal judgment was sought against Schneider for the amount then due on notes Nos. 3 and 4, held by Hickman, and a foreclosure of the vendor’s lien upon the land for which the notes were given. In the petition plaintiff alleged that Morris was the owner of note No. 5, which was given as part consideration of the sale of the land, and was one of the series of notes executed by Schneider at the time.

Morris filed an answer, and A. C. Braun intervened in the suit. Morris alleged the ownership of note No. 5, and prayed for judgment against Schneider, and also for foreclosure of his vendor’s lien. Braun alleged that for a valuable consideration and before maturity he purchased note No. 1 from the Toyah Valley Live Stock Company, and that he purchased note No. 2 before its maturity for a valuable consideration from plaintiff, Hickman; that both notes were indorsed without recourse by the Toyah Valley Live Stock Company and Hickman. He prayed for judgment against Schneider for the amount due on the two notes, and for an adjustment of the equities between all of the parties in the respective liens claimed by them.

In reply to the intervention by Braun, Hickman alleged that the indorsement of his name upon the backs of the two notes held by Braun was not made by him, nor by his authority, and were, hence, not binding upon him. He also denied the purchase of the notes by Braun as claimed by him. 1-Ie alleged that notes Nos. 1 and 2 were placed in banks for collection only, and were duly collected from the defendant Schneider, and that therefore the notes were fully discharged; that after said notes were so discharged Schneider delivered the same to Braun as security for money loaned by Braun. Plaintiff further alleged that, if any lien existed in favor of Braun by reason of the loan made by him to Schneider, the same exists only as between them, and is subordinate to the liens asserted by plaintiff. Substantially the same facts alleged by the plaintiff in his supplemental petition were adopted by defendant Morris, who also prayed that his lien be established as superior to that of Braun.

By supplemental plea Braun alleged that he furnished to Schneider the money with which he took up the two notes under an agreement for subrogation to the lien securing the same, and he prayed that, as the note held by'Morris was not one of the series of four notes originally payable to Hickman, the lien claimed by Braun should be decreed of superior dignity to the lien claimed by Morris.

Judgment was rendered in favor of the plaintiff, the defendant Morris, and intervener for their respective debts against Schneider, and for foreclosure of the liens claimed by all. But Braun’s lien was decreed to be inferior to that held by Hickman and Morris, whose liens were given equal dignity. A. O. Braun has appealed from that judgment.

The trial was by the court without'a jury, and findings of fact and conclusions of law by the trial judge appear in the record. The following facts were found by the court:

While Hickman held notes 1 to 4, inclusive, and before the maturity of any of them, he deposited them with the Toyah Valley Live Stock Company as collateral security for a note he owed to that company, with the understanding that when the latter note was paid the collateral should be returned to him. The Toyah Valley Live Stock Company deposited Hickman’s note, together with the collateral, with the Pecos Valley Bank, of Pecos, Tex., with instructions to collect the collateral as it matured and apply it upon Hickman’s note. The Pecos bank sent the collateral notes to the First National Bank of Stamford for collection. On the date of the maturity of note No. 1 Schneider paid that note, and also the interest then due on notes 2, 3, and 4. When note No. 1 was so paid, it had the following indorsement thereon:

“Pay to the order of the Toyah Valley Live Stock Company. N. W. Hickman. Without recourse.”

Instead of marking note No. 1 “Paid,” according to custom, the officer of the bank receiving payment, in obedience to Schneider’s request, delivered it to Schneider without said indorsement. Schneider informed such officer of the bank at the time that he intended to send the note to A. C. Braun, which was afterwards done. During the summer of the same year Braun procured the indorsement of the note to himself by the Toyah Valley Live Stock Company, but this indorsement was without Hickman’s knowledge. The money so collected by the Stamford bank was sent to the Pecos bank, who applied it to the discharge of Hickman’s note to the Toyah Valley Live Stock Company, and so notified Hickman, and further informed him that the other three collateral notes would be held by the bank for Hickman’s account. At the time note No. 2 matured the Stamford bank held the same for collection for plaintiff’s account. On the date of its maturity, Schneider paid the full amount due thereon. When the note was paid, it was delivered to Schneider, and at Schneider’s request was not marked paid. At that time there was an indorsement purporting to be to Braun without recourse by Hickman, but Hickman did not make such indorsement, nor authorize any one so to do; neither did Hickman authorize the Toyah Valley Live Stock Company to indorse that note to Braun.

The money used by Schneider in payment of notes 1 and 2 and the interest on notes 3 and 4 was loaned to him by Braun for that purpose, with the understanding and agreement by and between Braun and Schneider that said notes were not to be considered paid, and that Braun was to hold the same as a lien on the land mentioned to secure him in the advancement of the money by him to Schneider. AVhen notes Nos. 1 and 2 were paid, Hickman believed that the same were discharged, and the vendor’s lien upon the land in controversy released to that extent. Hickman paid an interest installment of $40 upon the incumbrance assumed by Schneider when the latter purchased the land, as shown above, and this amount was included in Hickman’s judgment, along with the amount due upon notes 3 and 4. The court found that the banks collecting said notes 1 and 2 “held the same for collection only, and had no authority from plaintiff, or from the Toyah Valley Live Stock Company, to transfer or assign the said notes.” In this connection we deem it proper to note that Braun interposed no plea that the acts of the bank in turning over the notes to Braun, under the circumstances stated, amounted to an assignment thereof by the bank, and that Hickman is estopped from denying the authority of the bank to make such assignment.

By different assignments Braun contends that the liens stipulated in the two notes held by him are co-ordinate with the liens claimed by Hickman and Morris. He has not attacked any of the court’s findings of fact. Hence those findings are binding upon us. It seems the findings of fact were filed after the adjournment of the court, and that the assignments of error presented in appellant’s brief are taken from his motion for a new trial. It thus appears that it was impossible to attack the findings of fact in the motion for new trial. But under rule 101, as amended June 25, 1913, shown in 159 S. W. xi, it is provided that:

“Assignments of error or cross-assignments relating to any ruling or action of the trial court or trial judge which occurs subsequently to the rendition of the final judgment in the case, may be incorporated in the brief filed in the Court of Civil Appeals without being included in the transcript.”

Even in the absence of that rule no doubt appellant had the right to attack those findings by assignments of error in some form filed with the clerk of the trial court. Many propositions of law are presented in appellant’s brief, some of which are predicated upon facts which he claims are Shown by undisputed evidence, but which cannot be considered, as the same are at variance with the findings of fact by the trial judge. The only question that can be considered is whether or not, under the findings of fact recited already, the court erred in subordinating Braun’s lien to that of Hickman and Morris. Unquestionably, as between Braun and Schneider, Braun acquired a lien upon the land by subrogation to the rights of Hickman, the original payee in the note. Indeed, neither in the court below, nor here, has Schneider or appellees controverted that right. Various phases of the doctrine of subrogation are discussed in such cases as Cason v. Connor, 83 Tex. 26, 18 S. W. 668, Dilley v. Friedman, 25 Tex. Civ. App. 39, 60 S. W. 448, Martin v. Gray, 159 S. W. 118, Fitch v. Kennard, 133 S. W. 738, and numerous other cases cited in those decisions. But it is unnecessary for us to determine whether under any of the rules of subrogation there was error in the judgment now under review, since the value of the land was not found by the trial judge, nor are we cited to any evidence in the statement of facts showing the same. If the land is of sufficient value to pay off all the notes held by all the parties to this suit, then any error committed by the trial judge in establishing the lien held by Hickman and Morris as superior to that held by Braun would result in no injury to appellant. In the absence of any proof of the value of the land, we cannot say that it is insufficient to pay off all the notes, and hence cannot say that the error complained of, if any, resulted in injury to appellant, and appellant’s assignments, therefore, must be overruled. Rule 62a, 149 S. W. x; Kynard v. Tucker (No. 8042, by this court) 171 S. W. 1086.

The judgment is affirmed.

On Motion for Rehearing.

As noted in the original opinion, the trial court found as a fact that the banks collecting the two notes paid by Braun had no authority from the plaintiff or from the Toyah Valley Live Stock Company to transfer or assign them. The court further found that Hickman did not know of the indorsement of the notes to Braun and believed that by the payments made to the banks the two notes had been discharged and the land relieved of so much of the incumbrance against it. Impliedly, at least, those findings negative any consent by Hickman that Braun should be subrogated to the lien given to secure those notes. In Fievel v. Zuber, 67 Tex. 275, 3 S. W. 273, our Supreme Court said:

“If any subrogation took place, therefore, it must have been by agreement of parties. That this can be accomplished by a payment made in accordance with an express understanding between the debtor, the creditor, and a third party, to the effect that if such third party pays the debt he may hold the security for his reimbursement, there can be no doubt. Dillon v. Kauffman & Runge, 58 Tex. 696; Flanagan v. Cushman, 48 Tex. 241. It is also recognized law that a payment upon a like agreement between a stranger and the creditor will have the same effect. In both these cases, however, this would seem a virtual assignment, without reference to the doctrine of subrogation. But upon the proposition that a substitution can be brought about by a contract between debtor and a volunteer, to which, the creditor is not a party, the law is not quite so clear. That it cannot be done as to a part of the debt, or in any manner to affect the rights of the creditor to his prejudice, does not admit of doubt. But there are numerous decisions which recognize the doctrine that, if a third party pay the entire debt in pursuance of an agreement between him and the debtor, upon his doing so he shall be subrogated to the creditor’s rights, the agreement will be given effect, and such third party will stand in the place of the creditor as to all persons interested in the property or the security.”

As Hickman never transferred the notes to Braun, and never agreed that Braun should be subrogated to the lien securing the same, it follows necessarily that they were paid so far as he was concerned, and therefore the lien in favor of the other three notes retained by Hickman is superior to the lien claimed by Braun. This conclusion of itself is sufficient to sustain the judgment of the trial court, independent of the further fact, noted in the original opinion, that there was an absence of any proof that the value of the land upon which the foreclosure was decreed was insufficient to satisfy all of the notes.

Accordingly the motion for rehearing is overruled.
      «gzsoFor other cases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes


author: CONNER, C. J.

text:
    SOUTHERN PAC. CO. v. W. T. MEADORS & CO.
    (No. 8139.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    April 3, 1915.
    Rehearing Denied . May 1, 1915.)
    1. Carriers @=>22S — Injuries to Live Stock —Evidence—Delay—Rough Handling.
    Where there was some evidence of unnecessary delay in the transportation of horses and of rough handling, and abundant evidence that the horses were in poor condition on arrival, the jury were authorized to- attribute such condition either to the delay or to the rough handling, and the shipper could recover the damages in either event.
    [Ed. Note. — For other casas, see Carriers, Cent. Dig. §§ 957-960; Dec. Dig. @=>228.]
    2. Carriers @=>228 — Carriage of Live Stock — Actions for Injuries — Burden of Proof.
    In an action for injuries to a shipment of horses, where plaintiff did not accompany the shipment, nor did any one for him, who was authorized to do more than to try to keep the horses up, the burden is on the carrier to explain the cause of the injuries received by the horses.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 957-960; Dec. Dig. @=>228.]
    3. Appeal and Error @=>231 — Presenting Questions in Lower Court — Objections Good in Part.
    In an action for injuries to two different shipments of horses, objections which refer to both shipments, but which are good only as to one of them, will be overruled.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1299, 1352; Dec. Dig. @=> 231.]
    4. Principal and Agent <@=>124 — Carriage of Live Stock — Limiting Liability — Contract — Authority of Shipper’s Agent.
    One who was authorized by the owner of horses to accompany them during a shipment, to see that none of them got down, is not authorized, as a matter of law, to execute a contract of shipment limiting the carrier’s liability.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. § 724; Dec. Dig. @=>124.]
    5. Carriers @=>280 — Carriage of Live Stock — Contract Limiting Liability — Validity.
    Where the evidence showed that the contract limiting the liability of the carrier for the shipment of horses was executed by the shipper as soon as they arrived at a junction point and immediately before they started on, and the shipper had not time to read the contract and did not know of the contents, and there was no evidence of a reduced rate or other consideration for the limited liability, it was proper to submit to the jury the question whether the contracts were valid.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 961, 862; Dec. Dig. <@=>230.]
    6. Carriers @=>228 — Carriage of Live Stock — Injuries—Proof of Manner and Place.
    Where it was shown that horses received severe bruises and other injuries during a shipment, and were weak and hungry on arrival at their destination, the failure of proof as to the precise place or manner in which the injuries were received does not defeat the shipper’s right to recover.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 957-960; Dec. Dig. @=>228.]
    7. Trial @=>234^Carriage of Live Stock-Instruction — Burden of Proof.
    In an action for such injuries, instructions that the carrier was not liable for any injury that did not result from lack of ordinary care, or that might have occurred on their lines, and that the burden was on the plaintiff to show by legal evidence Ms right to recover, were sufficient.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 534-588, 566; Dec. Dig. @=>234.]
    8. Appeal and Error @=>1066 — Harmless Error — Instructions.
    In an action for injuries to a shipment of horses, where there was no pleading or proof that the carrier failed to furnish proper facilities for unloading and reloading the horses, error in an instruction that it was the carrier’s duty to furnish proper facilities for such purpose and to unload and reload the horses, and that the shipper might recover all damages arising from the failure of the carrier to unload and reload, as required by law, or for such damages as were occasioned while they were being unloaded and reloaded, arising from the'carrier’s negligence, which was given in connection with an instruction that the horses must be unloaded, fed, watered, and rested every 28 hours, and the carrier was not liable for delay occasioned thereby, is not prejudicial, since the reference to the facilities for unloading and reloading was evidently only introductory.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4220; Dec. Dig. @=>1066.]
    Appeal from District Court, Mitchell County; W. W. Beall, Judge.
    Action by W. T. Meadors & Co. against the Southern Pacific Company. Judgment for the plaintiff, and defendant appeals.
    Affirmed.

      Ed. W. Smith, of San Antonio, Douthit & Smith, of Sweetwater, and Baker, Botts, Parker & Garwood, of Houston, for appellant. Ed. J. Hamner, of Sweetwater, for ap-pellee.
   CONNER, C. J.

This case has been before appellate courts of our state on two prior occasions, once before this court (129 S. W. 170), and later on writ of error before the Supreme Court (104 Tex. 469, 140 S. W. 427). It will therefore, be sufficient, we think, to now state but briefly such matters as are deemed necessary in disposing of the present appeal. To that end it may be said that the suit is one to recover damages to five car loads of horses shipped from Globe, Ariz., and seven car loads shipped from Gerónimo, Ariz., to points in Texas. Globe and Ger-ónimo are points on the Gila Valley, Globe & Northern Railway, which connected with the line of appellant’s railway at Bowie, Ariz., where the horses were received by appellant, and from thence transported to its connecting carrier a few miles from El Paso, Tex. W. T. Meadors accompanied the shipment from Globe as far as Gerónimo, where he stopped over to ship the horses going from that point. The Globe shipment, however, proceeded unattended, save that Mea-dors requested another shipper on the same train, a Mr. Nail, to look after the horses and keep them up. Meadors on a later day went through with the Gerónimo shipment. Both shipments went through from the initial points without change of ears. On arrival at Bowie, written contracts were executed by Nail and others covering the horses from Globe, and by Mr. Meadors covering the Gerónimo horses. The terms of these contracts and the circumstances under which they were executed, so far as material, will be later indicated.

The plaintiffs alleged negligent delays and want of due care on appellant’s part during the transportation of the horses on appellant’s line and consequent damages in the sum of $1,900. The defendant pleaded the general denial and specially certain provisions of the written shipping contracts above mentioned, limiting its liability. To this special plea the plaintiffs replied that the contracts relating to the Globe horses executed by Nail and others were wholly unauthorized by plaintiffs, and that the other contracts were without consideration in that they were signed for passes merely without time or opportunity to learn their contents, of which they were ignorant, etc. A trial upon the issues so outlined resulted in a verdict and judgment for the plaintiffs in the sum of $1,-500, with interest from July 10,1906, amounting in all to $2,210, and the defendant has appealed.

In various forms it is insisted that there is no evidence of delays and rough treatment, as alleged. While the evidence in support of these allegations is not replete in specific instances of unnecessary delays or rough handling, yet the evidence, as a whole, we think, sufficiently establishes the material allegations of the plaintiffs’ petition in these respects. There is evidence tending to show unexplained delay between- Bowie and El Paso as to one of the train loads of horses, at least. There is also evidence that, we think, authorizes an inference, at least, of rough handling in unloading some of the horses at Lordsberg, an intermediate station, and the evidence is abundant to show that the horses were delivered to appellant at Bowie in good condition, and that upon arrival at El Paso they were in a very bad condition. Many were found to be, if the evidence is to be credited, badly skinned and bruised, and -some 25 or 30 of them either dead upon arrival at El Paso or which died soon thereafter. Others arrived in El Paso with their manes and tails “chewed off,” as expressed by one of the witnesses, occasioned, as he explained, by extreme hunger arising from long confinement on the cars. A witness shown to be a shipper of long standing testified that injuries so found were not the result of an ordinary transportation. So that the jury evidently attributed, as we think the evidence authorized them to do, the condition of the horses on arrival at El Paso to negligent delays and unnecessary rough handling, but whether the one or the other, or both, is wholly immaterial to the plaintiffs’ right of recovery.

In this connection appellant insists that the burden was upon the plaintiff to show instances of the negligence charged, and that they were the proximate cause of the injuries shown, inasmuch as he accompanied the shipments. But, if it be assumed that the evidence referred to is insufficient to discharge this burden, nevertheless we think the contention applies to but one of the train loads. Por, as stated, the shipment from Globe, Ariz., proceeded from Bowie without the plaintiffs’ attention, and without the attendance of any one authorized to do more than to try to keep the horses up if they got down in the cars. Ás to this train load, therefore, at least, the burden rested upon the defendant to explain the injuries shown, and as to which the specific objections urged would hence not apply.

The objections, however, go to the whole, and, not being good as to the whole, should, ip. any event, be overruled. We accordingly hold that the court did not err in refusing to give the peremptory instruction to find for appellant, or in submitting the issue of negligence and delay to the jury, or in other respects pointed out in the first four assignments of error.

As stated in the beginning, appellant, among other things, pleaded that the shipments from Bowie were made upon written contracts containing limitations of its liability. As also stated, the plaintiffs replied, denying that the contracts had been executed by them, or by their authority, and in the fifth assignment of error (and the sixth and seventh raise substantially the same question) objections are made to a paragraph of the court’s charge submitting these contracts; the court charging, in substance, that, if made by the authority of the plaintiffs, then the limiting provisions should be applied by the jury. The evidence shows that, when the train load of horses from Globe arrived at Bowie, they were at once delivered to the appellant company, and very soon thereafter started on their forwarding journey. Before beginning, however, it seems that Nail, who had been requested by the plaintiffs to keep their horses up, and others accompanying Nail, executed written contracts pleaded by the defendant. But it is clear that, if these ■contracts were not executed under circumstances amounting to a species of coercion ,and unenforceable for want of consideration, there was at least no authority whatever from either of the plaintiffs to execute contracts so limiting the liability of the railway ■company. It cannot be maintained, under the circumstances of this case, as appellant insists, that the parties accompanying the ■train were authorized, as a matter of law, to make the contracts in question, and thereby bind the plaintiffs.

So, too, we think the evidence abundantly supports the conclusion that the contract executed by one of the plaintiffs, covering the train load of horses shipped from Gerónimo, was unenforceable. It was shown that, almost immediately upon arrival of this train load at Bowie, the shipment proceeded; the contracts being executed immediately before without any opportunity of reading the •contents, and without a knowledge of the provisions relied upon, and without, so far as we recall, any evidence of a reduced rate or other consideration. So that we find no error of the court in submitting the issues relating to these contracts, as indeed may be said to be concluded by the opinion of our Supreme Court when the case was before it. See 104 Tex. 469, 140 S. W. 429. The assignments referred to are accordingly overruled.

It is insisted that the court should have given a requested instruction to the effect that in the case of the shipment originating at Gerónimo, if the jury were unable to determine from the evidence before them “where or in what manner -the horses were injured,” the verdict should be for the •defendant as to that shipment. A like instruction was also requested relating to the shipment which originated at Globe. We think these charges were properly refused. This is particularly true as to the Globe shipment, which was not accompanied by any one with any authority or control on the part ■of the plaintiffs, nor in any ease do we think it true, in view of the character of injuries shown, that a mere failure in the proof to show the precise place or the precise manner of the injuries would have authorized a verdict for the defendant. The court’s charge on the subject was fully sufficient.

In the ninth paragraph the jury were specifically instructed that the defendant was not liable for any damages to the shipment in question which did not result from the want of ordinary care, nor for any damages that might have occurred to the horses on the lines of other railroads. The court further charged the jury in the fourteenth paragraph that the burden was upon the plaintiffs to show, by legal evidence, their right to recover. We accordingly overrule appellant’s eighth and ninth assignments of error. The objections made to the eleventh paragraph of the court’s charge, submitting the issue of the binding force of the written contract, is properly disposed of by the opinion of the Supreme Court before referred to. The tenth assignment will accordingly not be discussed.

A number of objections are also made to the following paragraph of the court’s charge:

“You are instructed that it was the duty of the Southern Pacific Company to furnish suitable and proper facilities for unloading and reloading plaintiffs’ horses for feed, water, and rest, if same became necessary to be done under the law as given you in charge herein, and also to unload and reload them, and the Southern Pacific Company would be responsible to plaintiffs for all damages, if any, arising from the negligence, if any, of the Southern Pacific Company in failing to unload and reload such horses, or for such damages, if any, occasioned said horses, while being unloaded and reloaded or being held in pens and while in charge of said Southern Pacific Company and arising from the negligence, if any, of said Southern Pacific Company.”

It is first insisted that there was neither pleading nor evidence of any failure on the part of defendant to furnish suitable and proper facilities for unloading and reloading plaintiffs’ horses. This seems to be true, but it will be observed that the charge can hardly be said to authorize a recovery on such ground. The reference in the charge to suitable and proper facilities for unloading and reloading is but introductory to that which follows, and we fail to see how it can be prejudicial. There was evidence raising an inference of negligence on the part of the company in unloading one of the train loads of horses at Lordsberg, the intermediate station before referred to, and it is evident that the charge was directed to this phase of the testimony. In the preceding paragraph of the court’s charge, evidently in the interest of defendant, and doubtless in answer to special Instructions of like, effect requested in behalf of the defendant, the court instructed the jury that, under the law, the horses could not be held on the cars for a longer period than 28 consecutive hours, without be*ing unloaded and rested, fed, and watered, and that, if the circumstances required such unloading and reloading for the purposes of feed, water, and rest, then the delay so occasioned should not be charged against defendant. Construing the charges together, which relate to the same subject, we think it altogether improbable that the jury were misled to defendant’s prejudice by the court’s reference to the company’s duties to furnish the proper facilities. The objection that the charge was erroneous for the reason that the written contracts relieved the defendant from liability for damages occasioned by the unloading and reloading is fully answered by the verdict of the jury, to the effect that the written contracts were unenforceable. And this last observation applies as well to the alleged error of the court in refusing a special instruction, to the effect that the written contracts limited the defendant’s liability for horses killed to the sum of ?5 per head, and also to the objection that the verdict is excessive because of such limitation. Moreover, the subject-matter of the special instruction was sufficiently comprehended in the court’s charge, for in paragraphs 12% .and 12% the jury were instructed that if, under the circumstances submitted in the paragraphs mentioned, the contracts were found to be authorized, then the defendant’s liability must be limited, as stated in the spe•cial instruction.

We And no further assignment that we think requires discussion. All assignments are accordingly overruled, and the judgment .affirmed.
      <gx^>For other cases see same topic and KEY-NUMBER in all Key-Ninnbered Digests and Indexes