author: HENDRICKS, J.

text:
    WILLINGHAM v. BROWN et al.
    (Court of Civil Appeals of Texas. Amarillo.
    Jan. 17, 1914.)
    1. Trial (§ 253) — Instructions — Construction.
    In an action to collect vendor’s lien notes, where defendant set up several defenses, including fraud and settlement, and possibly pleaded failure of consideration, a charge to find for plaintiff in such sum as the jury might believe from the evidence he is entitled to does not submit to the jury the question of failure of consideration, where there was an entire omission in the court’s charge with reference to the affirmative defense of want of consideration, and plaintiff admitted defendant was entitled to some credits.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 613-623; Dec. Dig. § 253.]
    2. Appeal and Error (§ 216) — Instructions —Necessity op Request.
    While ordinarily a plaintiff, who omits to request special instructions on the measure of damages, cannot complain of the general charge, a plaintiff cannot be deprived of the right to attack an insufficient verdict, in an action to enforce vendor’s lien notes, where defendant set up a failure of consideration, on the theory that he should have requested a special charge excluding that defense which was not presented by the general charge.
    [Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 216; Trial, Cent. Dig. §§ 627, 640.]
    3. Appeal and Error (§ 1171) — Review — Verdicts.
    Where a money verdict does not accord with the theory upon which it .was found, errors in its computations require a reversal of the judgment rendered thereon.
    [Éd. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4546-4554; Dec. Dig. § 1171.]
    4. Trial (§ 344) — Verdict—Impeaching Affidavits.
    Assignments of error based upon affidavits given by jurors for the purpose of impeaching their verdict must be overruled.
    [Ed. Note. — For- other eases, see Trial, Cent. Dig. § 813; Dec. Dig. § 344.]
    5. Trial (§ 251) — Instructions—Conformity to Issues — Liability as Surety.
    Where one of the defendants was liable only as a surety, it is error to give instructions allowing the jury to find against him either as a principal or surety.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 587-595; Dec. Dig. § 251.]
    Appeal from Potter County Court; W. M. Jeter, Judge.
    Action by G. W. Willingham against Howard Brown and another. From the judgment, plaintiff appeals.
    Reversed and remanded.
    C. A. Wright, of Amarillo, for appellant. Yost & Busby and Hugh L. Umphres, all of Amarillo, for appellees.

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

   HENDRICKS, J.

On March 14, 1912, Howard Brown, one of the appellees in this cause, and a defendant in the trial court, had the title to 152 ⅛ acres of land in Hutchinson county, Tex.; the appellant, G. W. Willing-ham, having theretofore conveyed to said Brown said land. As a part of the consideration for the conveyance of said land, the said Brown had executed to Willingham two $250 notes, and in addition thereto had agreed to relinquish to appellant Willingham a certain claim situated in New Mexico. In accordance with previous negotiations which had occurred between Willingham, the appellant, D. M. Young and Howard Brown, the appellees, certain deeds were executed upon that date, one by Brown and wife, embracing the Hutchinson county land, to the appellee D. M. Young, and a deed from D. M. Young and wife to the appellant, Willingham, embracing a certain lot situated in Amarillo, Potter county, Tex. As between Willingham and Brown, the latter was to retain his New Mexico claim, and in accordance with Wil-lingham's contention, by virtue of the conveyance by Brown to Young of the land in I-Iutchinson county, Young was to assume a lien upon the Hutchinson county land for something over $900; the contention of Young being that he was to take the conveyance from Brown subject to said indebtedness and was not to be liable for its payment. The deed from Brown to Young specifically recites the assumption of this indebtedness with the name of the grantee left blank, which omission Young does not object to, and says it .was in accordance with the negotiations and that.it was previously understood that he could thereafter fill in the name of the grantee in the event he sold the land to others. Young claims that during the previous negotiations Willingham and one Thom-ason represented the land as being situated in a square, and that it was all smooth, tillable’land; that at the time the deed which had been executed by Brown was handed to him, upon examination of the abstract of title, which accompanied the deed, he saw that it was land which he had previously owned and was acquainted with the position of the land upon the ground, also its quality; that it was not smooth, tillable land, neither was it in a square; that he then refused to accept the deed, stating his reasons, demanding a return of his deed of the lot in Amarillo, which was refused by Willingham, the grantee in that deed, and that the latter immediately recorded same. Willingham sued Young and Brown on the two $250 notes in the county court of Potter county, Tex. Young pleads the alleged fraud of plaintiff as to the representations with reference to the land; that there was no delivery of the papers; that there was a settlement between him and Wil-lingham by subsequent agreement, by the terms of which Young was to return the deed to the Hutchinson county land and execute with Willingham a note for the sum of $125 for the benefit of some third party; also pleading a failure of consideration. Brown defending on the ground that he was a surety, and also in part admitted and adopted a portion of the plaintiff’s petition, which is not necessary to recite. The amended original petition of Willingham admitted that his notes were subject to certain deductions by virtue of certain liquidated demands arising between him and Young, on account of other and different transactions, and in a supplemental petition pleaded specifically that Young had retained possession of the deed executed by Brown and had exercised ownership and possession over the land described in said deed, specifically alleging that Young had attempted to sell the land to himself and others by virtue of which, if any false representations had been made, the original, transaction and the validity of his claim had been ratified.

The trial judge, in submitting the issues of the cause as between Willingham and Young, charged in substance that if the jury believed that Young agreed to assume the debt on the Hutchinson county land and agreed to assume the payment of the two $250 notes, and that the deeds were delivered between the parties, to find for the plaintiff “in such sum as you (they) believe from the evidence he is entitled to,” unless they found that the false representations with reference to the Shape and quality of said land had been made by Willingham, and that Young should receive in exchange for his lot in the city of Amarillo a deed with the name of the grantee left blank, “which should not recite that any of the indebtedness of the Hutchinson county land was assumed by the said Young but should recite that it was subject to such indebtedness.” The jury returned the following verdict: “We, the jury, find in favor of the plaintiff judgment in the sum of $50, against the defendant D. M. Young, as principal, and Howard Brown, as surety, and also the recovery of the Nicholson note of $110 at the First State Bank.”

The appellant Willingham contends, by appropriate propositions, that the jury in finding a verdict for $50 necessarily found in accordance with his theory of liability with reference to the two $250 notes alleged by him to have been assumed by Young, and further asserts that such an amount is an incorrect verdict for the reason that there is no theory properly pleaded nor submitted to the jury in accordance with which, even when you consider all the proper credits which could have been applied by the jury as a deduction of Willingham’s debt, could reduce the same to the amount mentioned.

In reply to this position the appellee Young presents the counter proposition that he pleaded a failure of consideration as a defense to the notes and cause of action sued upon by appellant, and that there was testimony that the land in Hutchinscra county was of an actual value which, when taken in connection with the purchase price of the land, including the $950. debt incumbering the same, that the jury would have wide latitude in arriving at the amount he should be required to pay under Ms defenses;. that under the plea of failure of consideration a partial failure of consideration- could be proven. We do not admit that defendant’s pleading as a plea of failure of consideration is addressed to the difference in the value of the land as it actually exists and the contract price. In the last paragraph of his answer, there is a plea of failure of consideration, based upon the relinquishment of the New Mexico land and an additional allegation that, on account of the matters pleaded “herein,” the consideration has failed, but it is very doubtful that, if you fake the recitations of that paragraph as a whole, it-is relevant to the difference in value arising on account of the false representations as to the hind and quality of land agreed to he conveyed, and pleaded in the preceding paragraphs. The plea is rather susceptible .of the construction, though the parágraph is not numbered, that it is addressed to the particular matter raised in the paragraph which is entirely irrelevant as a defense in tins ■case. However, whatever the construction, the court did not submit such a plea to the jury, and we do not think that the recitation in his charge, directing the jury, if they •found in favor of plaintiff, to find “such sum as you believe from the evidence he is entitled to,” could be considered as the submission of a substantive defensive issue, especially when there is an entire omission in the court’s charge with reference to such affirmative issue claimed to be brought forward by defendant. This is a broader question than one of failing to submit the measure of damages. The authorities cited by the appellee Young are entirely inapplicable to a case of this status. It may be the general rule that, where the plaintiff omits to request a special instruction on the measure of damages, a general charge of the court is ordinarily sufficient. Where, however, the defendant contends for a substantive defense (doubtful in this case if properly applicable), and the court refuses or omits to submit such a defense to the jury, and when the defendant then asserts in effect that such a defense should have been submitted by the plaintiff, by an appropriate instruction on the matter of damages, before the latter can complain of the verdict) it occurs to us as rather an anomaly. The court submitted liability and nonliability upon other specific issues, and we are not to presume that the jury had a right to go into the record and decide substantive defenses which appellee contends were raised in the case, but wMch the record shows were never submitted. Upon consideration of this record, viewed as a cause submitted under the issues as directed by the trial court, there could have been no deductions except certain liquidated demands, not necessary to set out, which, if considered by the jury, could not reduce the plaintiff’s debt to any such amount as evidenced by the jury’s verdict.

We think the general rule in this state is that, “where a money verdict which has been returned by a jury does not accord with the theory upon which it was found, the error in its computation requires a reversal of the judgment rendered upon it.” Taylor v. Evans, 29 S. W. 172. See, also, Hexter v. Cory, 18 S. W. 574; Hilliard v. Johnson, 32 S. W. 914; Monroe v. Railway Co., 145 S. W. 1070.

The trial court in this case failed to submit the issue of ratification pleaded by the plaintiff alleging dominion and ownership over the land, the retention of the deed, and the alleged attempts of Young to sell the land, and in the record we notice a subsequent disposition of a part of the consideration by Young.

The assignment by the appellant Wil-lingham, based upon the affidavit of jurors for the purpose of impeaching their -verdict, is, of course, overruled. There are matters with reference to agreements which are not briefed. ' If the defendant Young, appellee herein, ratified the transaction, with full knowledge of all of its elements, the question is suggested in this record whether the plea of failure or partial failure of consideration would be available? We neither decide nor discuss the matter.

We think it is definite enough in tMs record that, if Young is liable, Brown’s liability upon the two notes is that of surety only and the court should not direct the jury “to find against the defendant either as a principal or surety in any event.” The measure of damages in cases of false representations of the position and quality of land by a vendor we believe is now settled by the case of George v. Hesse, 100 Tex. 44, 93 S. W. 107, 8 L. R. A. (N. S.) 804, 123 Am. St. Rep. 772, 15 Ann. Gas. 456, notwithstanding the cases of Merrill v. Taylor, 72 Tex. 293, 10 S. W. 532, and Pruitt v. Jones, 14 Tex. Civ. App. 84, 36 S. W. 502, adopt a different rule. The reversal in favor of Willingham will result in a reversal against both appellees, and we are unable to affirm as to Brown. While the attitude of the litigants is different, we think the principle illustrated by the ease of McRea v. McWilliams, 58 Tex. 334 (and cases cited), is applicable; also in this cause the amount owing by Brown as surety is dependent upon the amount owing by Young.

On account of the error indicated with reference to the improper verdict, we are required to reverse and remand this cause, and it is so ordered.


source: Caselaw Access Project

author: ■RASBURY, J.

license: Public Domain

text:
    ROPER & GILLEY v. LUMPKINS et al.
    (Court of Civil Appeals of Texas. Dallas.
    Jan. 10, 1914.
    Rehearing Denied Jan. 31, 1914.)
    1. Injunction (| 80) — 'Purpose of Remedy— Restraints Legal Action — Unconstitutional Statute.
    If Acts 33d Leg. c. 74, authorizing the commissioners’ court to order an election to determine whether the operation of pool rooms should be prohibited, is unconstitutional, persons having an established pool room business, which would be destroyed by the enforcement of this statute, were entitled to enjoin the holding of an election to put it into operation.
    [Ed. .Note. — For other cases, see Injunction, Cent. Dig. § 15Í; Dec. Dig. § 80.]
    2. Municipal Corporations (§ 993) — Parties Plaintiff — Interest.
    If Acts 33d Leg. e. 74, authorizing the commissioners’ court to order an election to determine whether the operation of pool rooms should be prohibited, is unconstitutional, taxpayers would have the right to enjoin the commissioners from ordering an election under the statute, since the expenditure of public funds for holding the election would be unlawful, and the election would be a nullity.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 2158-2161; Dee. Dig. § 993.]
    3. Constitutional Law (§ 70) — Judicial Functions — Statutes.
    If a statute enacted by the Legislature is a completed law, enacted pursuant to Const, art.
    3. § 1, vesting the legislative power in the Senate and House of Representatives, it can only be reviewed by the courts, except as to its construction, to determine whether it violates the Constitution.
    [Ed. Note. — For other eases, see Constitutional Law, Cent.Dig. §§ 129-132,137; Dec.Dig. § 70.]
    4. Constitutional Law (§65*) — Delegation of Legislative Power — Popular Adoption of Statute.
    Acts 33d Leg. c. 74, provides that the commissioners’ court of each county, when they deem it expedient, shall upon petition of 10 per cent, of the qualified voters of a county, or 20 per cent, of the qualified voters of any political subdivision, such as school districts, order an election to determine whether the operation of pool rooms shall be prohibited, and, if a majority of the votes are for prohibition, shall prohibit the operation of the pool rooms within the prescribed limits until the voters shall decide otherwise by a subsequent election. The act also fixes penalties for violating the law prohibiting the operation of pool rooms, etc. Held, that the act was not unconstitutional as an attempted delegation of the legislative power to the electors of the subdivision named, contrary to Const, art. 3, § 1, vesting the legislative power in the Senate and Plouse of Representatives, being a completed act as enacted by the Legislature.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. § 116; Dec. Dig. § 65.]
    5. Constitutional Law (§ 26) — Power of Legislature.
    Since the Legislature may exercise all power not expressly or impliedly withdrawn from it by the federal or state Constitutions, it could enact the statute (Acts 33d Leg. c. 74) authorizing the commissioners’ court, on petition, to order an election to determine whether the operation of pool rooms in the defined territory should be prohibited, as against an objection that the Constitution does not expressly authorize the Legislature to give the electors such power.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. § 30; Dec. Dig. § 26.]
    6.Constitutional Law (§ 296) — Due Process of Law.
    Acts 33d Leg. c. 74, authorizing local elections to determine whether pool rooms shall be prohibited, does not violate the provision of the Bill of Rights prohibiting any interference with property, etc., except by due course of the law of the land.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 825-838, 840-846; Dee. Dig. § 296.]
    Appeal from District Court, Ellis County; F. L. Hawkins, Judge.
    Suit by Roper & Gilley against J. C. Lump-kins and others for an injunction to restrain the holding of an election. From judgment for defendants, plaintiffs appeal.
    Affirmed.
    Jones & Hassell, of Sherman, for appellants.

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

   ■RASBURY, J.

On and prior to the session of the Thirty-Third Legislature, the business of conducting and operating pool or billiard rooms was authorized by law, and an occupation tax levied thereon. Article 7355, subd. 8, R. S. 1911. The regular session of the Thirty-Third Legislature passed an act (chapter 74, p. 136, General Laws) which in substance provided that the commissioners’ court of each county in the state may, when they deem it expedient, and shall, when petitioned by 10 per cent, of the qualified voters of a county, or a number of the voters equal to 20 per cent, of the qualified voters of any political subdivision, such as two or more complete commissioners’ or justice’s precincts, or school districts, order an election to be held by the qualified voters of such county or political subdivision to determine whether or not the operation of pool rooms as defined by the act shall be prohibited in such county or political subdivision. The act, in detail, provides the manner and method of holding the election, the character of ballot to be used for safeguarding same, etc., and further provides that the commissioners’ court shall meet on the eleventh day after the election, or as soon thereafter as practicable, and count the votes, and, if a majority of votes are for prohibiting pool rooms, the court shall make an order prohibiting the operation and maintenance of pool halls within the prescribed limits until the qualified voters shall, by subsequent election in the manner provided by other portions of the act, decide otherwise. The act further defines pool halls, fixes penalties for violation of the law prohibiting the operation thereof, authorizes the writ of injunctions for the enforcement of the law, and also fixes the time and manner in which subsequent elections may be held.

In compliance with the foregoing act, J. 0. Lumpkins, county judge, and Messrs. Rutherford, Chapman, Carroll, and Delk, county commissioners of Ellis county, acting as the commissioners’ court of said county, ordered an election to be held therein to determine whether the operation of pool rooms should be prohibited in said county, and directed the clerk of the court to publicly post notices that such election would be held in said county, which was done, and the notice given wide publicity in the county, in the manner provided by the act. Prior to the time set for the election, and after the publishing of the «notice by the clerk, appellants applied to Hon. E. L. Hawkins, judge of the Fortieth judicial district, for an injunction restraining the officers named from holding such election, which was denied, and, from which action, this appeal is taken. Appel-lees have filed no brief.

It is sufficient to say, with reference to the pleading, that appellant charged the act to be unconstitutional, and averred that he was entitled to relief by injunction, because by the application it was made to appear that the calling of said election was an unlawful interference with appellant’s pool room then being operated in said county. If the law is unconstitutional, as alleged, then appellant was entitled to the writ, since the damage alleged was probable if the election was held is not denied. M., K. & T. Ry. Co. of T. v. Shannon et al., 100 Tex. 379, 100 S. W. 138, 10 L. R. A. (N. S.) 681. In the case cited our Supreme Court say, in effect, that our courts may enjoin state or county officers from enforcing legislative enactments claimed to be unconstitutional when it is made to appear that the officers are about to do some act thereunder which will be an unlawful interference with the complainant’s rights. The facts urged as establishing an interference with appellants’ rights were that long prior to the passage of the act and the ordering of the election appellants had conducted in said county a pool room, and for that purpose had become and were the owners of valuable property, consisting of pool and billiard tables, balls, racks, cues, etc., and had as well built up and controlled a valuable patronage, from the public, which said'law sought to and would impair and destroy to their damage in the sum of $4,250.

Appellants further alleged that they were property owners and taxpayers in Ellis county, and that appellees had spent a large sum of money from the tax fund of the county in arranging for said election, and would spend further sums in holding same, and, the law being unconstitutional, they were, as taxpayers, entitled to the writ of injunction against the appellees. If the law is unconstitutional, any election held thereunder would be a nullity, and the expenditure of public funds for that purpose would be unlawful, and appellants would be entitled to the writ, and the suit could be maintained on that ground. City of Austin v. McCall, 95 Tex. 565, 68 S. W. 791.

Being of opinion, then, that the suit was properly brought, and that the writ of injunction should have been issued, if the law is unconstitutional as urged, we come to the consideration of that exact question. The first claim in that respect is that the act is unconstitutional because it is an attempt by the Legislature to delegate its lawmaking power to the electorate in the several political subdivisions named therein. Section 1, art. 3, of our Constitution provides that the legislative power of the state shall be vested in the( Senate and House of Representatives. This provision, it has been held, places exclusively in the Legislature the right possessed by the citizens of the state to enact laws under the Constitution, and each act or statute, in order to meet the demands of the Constitution, must emerge from the hands of the legislators a finished and complete law.

A law so enacted by the Legislature can be reviewed by the courts upon but the single point that it violates the Constitution. Brown v. City of Galveston, 97 Tex. 1, 75 S. W. 488.

Considered from the standpoint stated, we are of opinion that the act here complained of meets the rule in every particular so far as it pertains to the right intended to be conferred upon the citizens of the political subdivisions named therein, and the authority conferred upon the commissioners’ court to order the election, and the various courts and officers to enforce same when occasion demands. The act passed the Senate and House by the required majorities, and was approved by the Governor. It does not by its terms confer upon the electorate any legislative power. It provides that the commissioners’ court may, in the exercise of its judgment, and shall, upon demand of a given number of voters, order an election for the purpose of prohibiting the operation of pool rooms. It does not provide that the people shall say by their votes whether or not they desire the Legislature to pass an act conferring upon them the right contained in the act. The Legislature has presented such an act, complete and finished in every detail. The act does not permit the electorate to say by their votes whether they approve or disapprove the right conferred. They had and were given no voice in that matter except by virtue of any representation they had in the Legislature. The right to prohibit the operation of pool rooms is clearly conferred by the act itself, and the only step necessary to be taken by the people in order to secure the benefits of the act in the political subdivisions named is for the officials charged therein with such duty to order an election. Hence it can be safely said that the act in no respect attempts to confer upon the electorate the lawmaking power of the Legislature. Every detail of the act is complete, and the people may in no respect add to or take from its provisions, but are merely given the right to vote upon whether the law, as passed, shall be put in operation in the subdivisions named. The act, in our opinion, is dissimilar to the law construed in State v. Swisher, 17 Tex. 441, where the law was held to be unconstitutional, on the ground that it left to the voters the determination of whether or not licenses should be issued to liquor dealers. Justice Lipscomb, in writing the opinion, said the principal objection to the act was that it was referred to the voters for ratification before it became a law. The law under discussion is not subject to that objection, since the right to prohibit the business is complete by the act itself, and there is only left to the determination of the people whether they will exercise the power conferred. The vesting of such discretion in the people is held not to'be a delegation of the lawmaking power, for the reason that the discretion imposed involves the exercise of the power as distinguished from its creation. Johnson v. Martin, 75 Tex. 33, 12 S. W. 321.

But it is urged, in effect, that the act is null and void, for the reason that it is repugnant to the 'Constitution, since that instrument does not, in express terms, permit the Legislature to confer upon the electorate the right, power, or discretion contained in the act. Eor the reasons stated, we are of opinion that the act under discussion is a complete affirmative law, and only lodges with the voters a discretion relating to the exercise of its powers; at the same time it may not be said that the Legislature is without authority to grant to the several political subdivisions of the state only such powers as are expressly granted by the Constitution, since it has been said by our Supreme Court that, “except in the particulars wherein it is restrained by the Constitution of the United States, the legislative department may exercise all legislative power which is not forbidden, expressly or by implication, by the provisions of the Constitution of the state.” Brown v. City of Galveston, 97 Tex. 1, 75 S. W. 488.

It is also urged that the law is in violation of that portion of the Bill of Rights that inhibits any interference with the life, liberty, property, etc., of the citizen, except by the ■due course of the law of the land. We have stated our reasons for holding the law to be one not inhibited by the Constitution, and, if we are correct in our views in that respect, a corollary thereto is that due course of law was observed in its enactment.

The judgment is affirmed.


author: WILLSON, O. J.

text:
    SOUTHWESTERN TELEGRAPH & TELEPHONE CO. v. COFFEY et al.
    .(Court of Civil Appeals of Texas. Texarkana.
    Dec. 26, 1913.
    Rehearing Denied Jan. 22, 1914.)
    1.Damages (§ 132) — Personal Injuries— Excessive Recovery.
    A recovery of $11,000 for personal injuries was not excessive where plaintiff’s skull was fractured, necessitating removal of a portion, confining him to his bed for several weeks, and he was rendered unable to ■ work, and suffered pains in his head, and his nervous system was impaired generally, and the indications were that another operation would be necessary, and that later in life he would have 'fits and be susceptible to certain diseases.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 372-385, 396; Dec. Dig. § 132.]
    2. Appeal and Error (§ 1170) — Ground eor Reversal — Argument oe Counsel.
    Under rules of Courts of Civil Appeals' rule 62a (149 S. W. x), providing that a reversal shall not be had for error not probably causing the rendition of an improper judgment, improper' argument of counsel was not ground for reversal, where it did not probably cause the jury to find for plaintiff in a personal injury case a greater sum than they would otherwise have found.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4032, 4066, 4075, 4098, 4101, 4454, •4540'-4545; Dec. Dig. § 1170.]
    3. Trial (§ 252) — Refusal of Instructions —Evidence.
    Where, in an employé’s action for injuries received from the falling of a telephone pole which he and others were erecting, the evidence did not make any issue whether he assumed the risk of injury, an instruction that he assumed such risk, if the manner and means used to place the pole were as obvious to him as to defendant’s manager who was directing the work, was 'properly refused.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. § 252.]
    4. Trial (§ 260) — Refusal of Instructions Covered.
    In an employé’s action for injuries received from the falling of a telephone pole which he and others were erecting under the direction of defendant’s manager, instructions to find for defendant if the men and means furnished were sufficient to render the placing of the pole reasonably safe, and if the injury was the result of an unavoidable accident, were properly refused when covered in the main charge.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.]
    5. Master and Servant (§ 190) — Injury to Servant — Vice Principal.
    That the employer’s manager was working as a common laborer in erecting a telephone pole at the time the pole fell and injured an employé likewise working under his direction did not preclude, him from being a vice principal as to the injured employé.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 449-474; Dec. Dig. § 190.]
    6. Trial (§ 260) — Refusal of Instructions Covered.
    In an employé’s action for injuries from the falling of a telephone pole which he and others were erecting, it was not error to refuse instructions to not consider plaintiff’s minority as affecting the question of defendant’s negligence in having plaintiff do the work he was engaged in when injured, if plaintiff was an intelligent young man, capable of understanding the situation as well as a person of mature years, where the court instructed to find for defendant, unless it had been negligent in failing to furnish “a reasonably sufficient number of hands to erect said pole with reasonable safety to themselves,” or in not furnishing tools and appliances reasonably suitable to erect said pole with reasonable safety.
    [Ed. Note. — For other eases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.]

      7. Appeal and Error (§ 1066) — Harmless Error — Instructions.
    Where, in an employes action for injuries, plaintiff testified, without contradiction, that he did not know it was dangerous to engage in the work with the number of men and with the tools furnished, the giving of an instruction that plaintiff had a right to assume without investigation that defendant had not been guilty of negligence in respect to furnishing men and tools, if error, was harmless, though plaintiff knew the number of men and the kind of tools furnished.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4220; Dee. Dig. § 1066.]
    Appeal from District Court, Collin County; J. M. Pearson, Judge.
    Action by Ross Coffey against the Southwestern Telegraph & Telephone Company and another. Prom judgment for plaintiff against the Telephone Company, it appeals.
    Affirmed.
    At about 2:30 o’clock of Wednesday, March 13, 1912, appellee, Ross Coffey, a boy of about 17 years of age, while engaged, as the jury found and as we find, in the discharge of his duty as an employ® of appellant in assisting one Busby, its manager at Farmers-ville, and one Garrison, another one of its employes, in placing a telephone pole, as the result of negligence on the part of appellant in failing to furnish the number of men and kind of tools necessary to do said work with reasonable safety to its said employes, was seriously and permanently injured. The pole in question was about 25 feet long, and weighed several hundred pounds. Said ap-pellee, testifying as a witness, said the accident occurred in this way: “Mr. Garrison and I were down close to the hole in which we were going to put the pole, pushing with our shoulders, and Mr. Busby was out at the end with a shovel pushing up — out at the little end of the pole. * * * When Mr. Busby got the pole up so high he told me to get a cross-arm (shown by other testimony to have been about 30 feet distant) and prop the pole. I got the cross-arm and brought it up there to the pole and set it up, and the pole slipped off and hit me, and that is all I remember.” Busby’s account of the accident was as follows: “The day Ross Coffey got hurt we were erecting that pole as follows: I placed the butt of it in the hole or over the hole and raised it up, and Mr. Garrison got about midway of the pole and got it on his shoulder, and I took the shovel lying there and went to the top end. When Garrison got the pole on his shoulder, I suppose the little end was about 10 feet from the ground. I then stuck the shovel (shown by other testimony to have been a round pointed one) in the pole, and proceeded to go higher with it. * * * When I stuck the shovel into the pole and raised it up higher, I got it up about 13 or 14 feet. The wind caused the pole to get away from me.” From other testimony it appeared that when it fell the pole, or the cross-arm, struck said appellee on the right side of his head, fracturing his skull. Within a few hours thereafter he became unconscious and remained so until the Saturday night following the Wednesday on which the accident occurred. To save his life, surgeons thought it necessary to perform, and did perform, an operation which involved the removal of a portion of his skull. He was confined to his bed several weeks, at the time of the trial in October, 1912, had been unable to do work of i any kind, and suffered from pains in his head, and in his eyes when he attempted to read. His nervous system generally seemed to have been impaired. A knot had formed on his head back of his ear, which surgeons testified, indicated the fracture extended to the mastoid cells, in which event, they said, another operation, dangerous to his life, would be < necessary. Surgeons further testified that, as a result of the injury he had suffered, said appellee was liable later in his life to have fits, and would be rendered more susceptible to tuberculosis and other diseases. Appellee’s suit against appellant and Busby resulted in a judgment in his favor against appellant for $11,000, and in favor of Busby against him for costs.
    A. P. Wozencraft, W. S. Bramlett, and D. A. Frank, all of Dallas, and G. R. Smith, of McKinney, for appellant. R. L. Moulden, of Farxn-crsville, and H. O. Miller and R. O: Merritt, both of McKinney, for appellees.

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

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

   WILLSON, O. J.

(after stating the facts as above). In its first and eighth assignments appellant complains of the verdict as excessive, and in its second, third, fourth, fifth, sixth, and seventh assignments complains of portions of the closing argument to the jury, made by one of appellee’s counsel, as unwarranted by the testimony and prejudicial to its rights.

When considered with reference to the injury suffered by said appellee, we do not think the sum found in his favor is so large as to suggest that the judgment of the members of the jury may have been influenced by passion or prejudice, or any consideration other than a desire to discharge their duty to find in his favor such a sum as would reasonably compensate him for the injury inflicted on him.

Parts of the portions of the argument of counsel objected to were, we think, improper, but we do not think such parts were “reasonably calculated to cause, and probably did cause,” the jury to find in appel-lee’s favor a greater sum than they otherwise would have found. Unless wé thought to the contrary, we would not be warranted, without disregarding the rules for the government of this court, in reversing the judgment. Rule 62a (149 S. W. x).

The court refused appellant’s request to give to the jury its special charges numbered 4, 8, 19, 13, 15, and 16, and complaint is made of his action in this respect. Said special charge numbered 4 was to find for appellant on the ground that it conclusively appeared from the testimony that appellee had assumed the risk he incurred in the work he was doing at the time he was injured.

Said special chárge numbered 16 was that appellee assumed such risk if the manner and means used to place the pole were as open and obvious to him as same were to Busby. We do not think the testimony made an issue as to whether appellee had assumed the risk or not. Therefore it is unnecessary to determine whether the court was justified in refusing the charges on other grounds or not.

The special charge numbered 8 was to find for appellant if the jury believed the men and means furnished by it were sufficient to render the effort made to place the pole reasonably safe. The jury in effect were so instructed by the court in his main charge and in the special charge numbered 5 given at appellant’s request.

The special charge numbered 10 was that, if Busby, appellant’s manager, in his effort to place the pole was acting as a common laborer, and not as such manager, he was a fellow servant to appellee. But we think the fact that Busby may have been working as a common laborer in the effort to place the pole did not render him any less a vice principal as to appellee, who at the time was subject to his direction and control. Suderman & Dolson v. Kriger, 50 Tex. Civ. App. 29, 109 S. W. 373.

The special charge numbered 13 was to find for appellant, if the jury believed the injury to appellee was the result of an unavoidable accident. The court so instructed the jury in his main charge, and therefore properly refused said special charge.

The special charge numbered 15, had it been given, would have directed the jury “not to consider plaintiff’s minority as affecting the question as to whether or not it was negligence upon the part of the defendant to have said plaintiff doing the work which he was doing at the time of the accident,” if they believed “he was a bright, intelligent young man, and capable of understanding the situation in which he was placed just prior to the time of the accident as fully and as well as a person of mature years.” In justification of the action of the court in refusing to so instruct the jury, it is enough to say that in the charge he gave them he required the jury to find in appellant’s favor, unless they believed- it had been negligent, in that it had not furnished “a reasonably sufficient number of hands to erect said pole with reasonable safety to themselves,” or in that it had not furnished the men who engaged in the work “with tools and appliances reasonably suitable to erect said pole with reasonable safety to themselves.” As we think the court should not have given said special charges, or any of them, we overrule appellant’s ninth, tenth, eleventh, fourteenth, fifteenth, and sixteenth assignments.

In his main charge the court told the jury: “It was the duty of Ross Coffey to use ordinary care, while assisting in the erection of the poles for the benefit of the defendant company, for the protection of his own person against damage or injury, and he had the right to assume without investigation that the defendant company would exercise ordinary care to furnish a reasonably sufficient number of hands to erect poles for the benefit of the company, and that said company would also exercise ordinary care to furnish the employes engaged in erecting said poles with reasonably suitable tools and appliances to enable them to do the work with a reasonable degree of safety to themselves.” The instruction (or rather, we take it, that portion of it that told the jury ap-pellee had a right to assume without investigation that appellant had not been guilty of negligence in the particulars specified) is attacked as erroneous on the ground that there was evidence, appellant asserts, which would have supported a finding that appellee knew and appreciated “the dangers attendant upon the doing or attempted doing of the work with such number of men and tools used.” Unquestionably it appeared that ap-pellee knew the number of men and kind of tools furnished by appellant with which to do the work. But he testified, and there was no testimony to the contrary, that he had never before assisted in that kind of work, and, as we view the record, there was no testimony tending to show that he knew it was dangerous to engage in it with the number of men and with the tools furnished for the purpose. Therefore we are of the opinion that the error, if any, in the instruction, was not such as to require a reversal of the judgment.

Other objections urged to portions of the court’s main charge are not more meritorious than the one just referred to. The assignments presenting them are overruled.

The action of the court in overruling special exceptions to certain allegations in the petition, on the ground that same were vague, indefinite, and uncertain, is made the basis of appellant’s twentieth,' twenty-eighth, twenty-ninth, thirtieth, and thirty-first assignments. Of the special exceptions referred to we are inclined to think the sixteenth should have been sustained; but if the court erred in overruling it, we are sure the error is not one which “was reasonably calculated to cause, and probably did cause, the rendition of an improper judgment in the case.” Rule 62a for the government of Courts of Civil Appeals (149 S. W. x.) Therefore the assignments specified are overruled.

In its twenty-first, twenty-second, twenty-third, twenty-fourth, twenty-fifth, twenty-sixth, twenty-seventh, thirty-third, thirty-fourth and thirty-fifth assignments, appellant complains of the action of the court in admitting oyer its objection thereto, certain testimony in said assignments specified. We think the court did not err as claimed, and overrule the assignments.

The assignments not specifically disposed of by what has been said are believed to be without merit, and therefore are overruled.

Because, as we view it, the judgment is without error requiring its reversal, it is affirmed.


author: WILLSON, C. J.

text:
    CRAWFORD v. CRAWFORD.
    (Court of Civil Appeals of Texas. Texarkana.
    Dec. 18, 1913.)
    1. Receivers (§ 5) — Pendency of Action.
    Where, though plaintiff’s petition in divorce had been dismissed when the court appointed a receiver, and defendant had withdrawn- his answer, in so far as it prayed for a divorce, by way of cross-action, only leaving that part which prayed for a division of the property, plaintiff’s reply to the answer, in which she renewed her prayer for a divorce, was still before the court, and it could not be said that there was no suit pending when the receiver was appointed.
    [Ed. Note. — For other cases, see Receivers, Cent. Dig. §§ 5-11; Dec. Dig. § 5.]
    2. Receivers (§ 30) — Appointment—Necessity of Application.
    A receiver may be appointed on the court's own motion without an application therefor.
    [Ed. Note. — For other cases, see Receivers, Cent. Dig. § 43; Dec. Dig. § 30.]
    3. Receivers (§ 48) — Appointment—“Person Interested.”
    The sheriff was not a “person interested” within Rev. Civ. St. 1911, art. 2129, so as to prevent his appointment as a receiver in a divorce action.
    [Ed. Note. — For other cases, see Receivers, Cent. Dig. §§ 73-76; Dec. Dig. § 48.

    For other definitions, see Words and Phrases, vol. 6, p. 5336.]
    Appeal from District Court, Panola County; W. C. Burford, Judge.
    Action by Mrs. A. M. Crawford against T. T. Crawford, in which defendant filed a cross-bill. From an order overruling defendant’s motion to set aside a judgment, in so far as it appointed the sheriff as receiver, defendant appeals.
    Affirmed.
    H. N. Nelson, of Carthage, for appellant. Brooke & Woolworth, of Carthage, for appel-lee.

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

   WILLSON, C. J.

Appellee, appellant’s wife, sued him for a divorce. She also sought a partition of property which, she alleged, belonged to the community estate between them, and an allowance for her support, and the payment of the expenses of her suit, and an injunction restraining appellant from disposing of any of said property. In his answer appellant denied that the property in question belonged to said community estate, and, on allegations he made charging appellee with misconduct, prayed that a divorce be granted to him. Replying to this answer, appellee denied the truth of the charges therein made against her, asserted they were sufficient as grounds for the divorce she sought, and renewed her prayer for that relief. The disposition made of the case in the court below is shown by a judgment in part as follows: “A jury being waived, the matters of law as well as of fact were submitted to the court, and after the pleadings were read, and the plaintiff sworn and placed upon the witness stand, testified that she had lived in Panola county up to. the time her husband left her on the 23d day of June, 1913, but that she had on that date returned to the home of her father across the line in Shelby county, where she had been constantly since. And it appearing that the plaintiff’s original petition was filed on the 22d day of July, 1913, the court thereupon dismissed plaintiff’s suit for want of jurisdiction. Defendant, T. T. Crawford, had filed a cross-bill theretofore in said court, asking that divorce be granted him, and thereupon the plaintiff asked leave to file an answer to said answer and cross-bill of defendant, which request was granted, and the plaintiff filed same, and thereupon the defendant asked leave to withdraw all of his said answer and cross-bill except that portion asking for a division of the property. And it appearing to the court that defendant was a bona fide inhabitant of the state of Texas, and had actually resided in Panola county, Texas, for more than six months next preceding the filing of this suit, the court thereupon heard evidence as to the merits of said cause; and it appearing to the court from the said evidence that Mrs. M. A. Crawford was pregnant, and it further appearing that she had no property of any kind whatever in her own separate right to support, and maintain, and to provide for her confinement, the court thereupon continued the said cause for divorce until the next term of this court, and by his order appointed W. D. Anderson, sheriff of Panola county, Texas, as receiver to take possession of the hereinafter described property, which the court found was the community property of the plaintiff and defendant and the separate property of the defendant,” etc.

This appeal is from an order overruling appellant’s motion to set aside said judgment, in so far as it provided for the appointment of a receiver, and, if not so far, then in so far as it named the sheriff as such receiver.

In support of the contention made here, that the court below was without authority to appoint a receiver, appellant asserts that, at the time the order providing for such an appointment was made, there was no suit pending before the court. The assertion is contradicted by the record, as we understand it. While it is true the court had dismissed ap-pellee’s petition, -and appellant had withdrawn his answer, in so far as it was for a divorce, appellee’s reply to that answer, in which she renewed her prayer for a divorce, was before the court. When appellee’s suit as originally commenced was dismissed, she remained before the court as the defendant in the cross-action set up by appellant in his answer. The withdrawal by appellant of that answer, in so far as it prayed for a divorce from appellee, did not deprive her of a right to be heard on her prayer for a divorce on the grounds set up in her reply to said answer. Charlton v. Charlton, 141 S. W. 290; Short v. Hepburn, 89 Tex. 622, 35 S. W. 1056; Bradford v. Hamilton, 7 Tex. 55.

Neither of the parties to the suit had asked for the appointment of a receiver, and appellant insists that for that reason the court was without authority to appoint one. But it seems to be fairly well settled that in a proper case a court has power, without an application therefór, and upon its own motion, to appoint a receiver. Gray v. Town of Newark, 9 Del. Ch. 171, 79 Atl. 735, 739; McGarrah v. Bank, 117 Ga. 556, 43 S. E. 987; Elk Fork Oil & Gas Co. v. Foster, 99 Fed. 495, 39 C. C. A. 615; Waters-Pierce Oil Co. v. State, 47 Tex. Civ. App. 299, 105 S. W. 851. That the suit, if one was pending in the court below, as we have determined was true, was a proper one in which to appoint a receiver is not questioned on this appeal. The power conferred upon a trial court in a divorce case is a broad one; the statute declaring that “pending any suit for a divorce the court, or the judge thereof, may make such temporary orders respecting the property and parties as shall be deemed necessary and equitable.” Article 4639, R. S. 1911.

The remaining contention is that the sheriff, beeauáe an interested party, was not eligible to appointment as receiver. The prohibition in the statute is against the appointment as receiver of “any person interested in any way in an action for the appointment of a receiver.” Article 2129, R. S. 1911. We think it cannot be said that the sheriff was interested, within the meaning of the statute, in the suit pending before the court. The inhibition of the statute, we think, is against persons interested in the subject-matter of the litigation or results sought to be attained thereby. It is common practice in some jurisdictions to appoint the clerk of the court receiver, and a sheriff has been held not to be ineligible to appointment. 23 A. & E. Enc. Law, pp. 1034 and 1035.

The judgment is affirmed.


author: RAINEY, C. J.

text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. BARBER.
    (Court of Civil Appeals of Texas. Dallas.
    Jan. 3, 1914.
    Rehearing Denied Jan. 31, 1914.)
    1. Appeal and Error (§ 1033) — Trial (§ 203) — Review—Harmless Error.
    Where the parties to a personal injury action agreed what issue should be submitted, the court should have confined the charge to that issue, but the erroneous submission of the issue of plaintiff’s contributory negligence was harmless to defendant; being a matter of defense which would cast a greater burden only on plaintiff.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4052^062; Dec. Dig. § 1033; Trial, Cent. Dig. §§ 477-479; Dec. Dig. § 203.]
    2. Trial (§ 260) — Instructions—Refusal-Request.
    The refusal of a request covered by the charge given is not error.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.]
    3. Appeal and Error (§ 1066) — Review— Harmless Error — Instructions.
    In a personal injury action by a servant, the giving of a charge as to the risks assumed by employés, which was not warranted by the evidence, must be considered harmless, being a matter of defense and not calculated to influence the jury against the master.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4220; Dec. Dig. § 1066.]
    4. Trial (§ 256) — Instructions—Requests.
    Where a charge is incomplete, but not erroneous, a party desiring to complain thereof must request a special charge supplying the defect.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 628-641; Dee. Dig. § 256.]
    5. Master and Servant (§ 296) — Injuries to Servant — Assumption oe Risk.
    Where a switchman was opening the couplings, which did not work when the cars were shoved together, a charge that he had the right to assume that the engineer in charge of the locomotive would not move the same while it was standing still without a signal is proper.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1180-1194; Dec. Dig, § 296.]
    6. Trial (§ 314) — Conduct of Court — Coercion of Jury.
    In an employé’s action against a railroad Company for personal injuries, the action of the trial court in urging the jury to agree, and retaining them for two days after their statement that they could not agree and wished to be discharged, does not constitute reversible error, where it did not appear that there was any sug-gestión to the jury to compromise, or that the statement that the trial was an expense to the county, and that verdicts must be had, was more in favor of one party than another.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 472, 473, 747, 748; Dec. Dig. § 314.]
    Appeal from District Court, Grayson County; W. M. Peck, Judge.
    Action by J. D. Barber against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    A. S. Coke and A. H. MeKnight, both of Dallas, and Head, Smith, Maxey & Head, of Sherman, for appellant. E. J. Smith, of Denison, and Freeman & Batsell, of Sherman, for appellee.

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

   RAINEY, C. J.

Appellee, while in the employ of appellant as a switchman, was, through the negligence of appellant’s engineer, seriously injured, which caused him to contract tuberculosis, and by which he has been damaged, for which damage he sued the appellant. Appellant answered by plea of contributory negligence and assumed risk, and further that appellee and appellant were engaged in interstate commerce, and that appellee’s cause of action arose under, and is governed by, Acts of Congress and Laws.of the United States, and not of the state of Texas. A trial resulted in a verdict and judgment for appellee for $7,000, from which this appeal is taken.

The first, second, third, and fourth assignments of error complain of the court’s charge on the question of contributory negligence.

The proposition submitted is that: “An issu'e not raised by the evidence should not be given in charge to the jury; and to give such an issue in charge is reversible error when such charge was calculated to confuse or mislead the jury to appellant’s prejudice.” Before the court read his charge to the jury he submitted it to the attorneys for inspection, the court’s attention was called to the fact that it was agreed between the parties that one issue should be submitted to the jury, and that was whether or not the plaintiff gave the engineer a signal to come ahead, after having given a stop signal, or whether the last signal by plaintiff was a stop signal, and the engineer came ahead without a signal. The parties having agreed on the necessary issue to be submitted to the jury we think the court should have confined his charge to that issue, yet we are unable to see that any injury resulted to appellant by reason of the court charging on contributory negligence. If it could be said that there was no evidence raising the question of contributory negligence, the charge was favorable to appellant in that it permitted the jury to find, on that, issue, which, if found in the affirmative, would have, lessened the damages to which appellee was entitled.

The evidence shows that appellee was employed as switchman for appellant, and while in the performance of that duty it was necessary in making up a train to couple some cars; that he signaled the engineer operating the engine to shove the cars together that they be coupled, and as he did so appellee stepped in between the ears to make the coupling, which failed. Appellee, seeing the knuckle needed adjusting, gave the engineer the stop signal, and then stepped in between the cars, and the engineer, having disregarded the stop signal, drove the cars together and mashed appellee in the left breast, which injured him and eventually produced tuberculosis.

There was testimony which, in the absence of the agreement as to the issue that was to be submitted, called for a charge on contributory negligence. In connection with appellant’s ideas of the agreement as to the1 issue to be submitted the following charge was asked and refused by the court, to wit: “If you find that at the time, or immediately before, he was injured plaintiff did not give said engineer a signal to come ahead, and that said engineer moved said engine and ears without signal so to do, you will find for plaintiff; on the other hand, if you find that plaintiff did give said engineer a signal to move said engine and cars, and that said engineer moved same in obedience to such signal, you will find for the defendant.” The theory embraced in this special charge was covered by the main charge, and there, was no error in refusing to give said charge. Under the circumstances as developed the foregoing assignments are overruled.

2. Appellant’s jifth /assignment complains as follows: “The court erred in giving to the jury the following portion of paragraph No. 6, of its general charge: ‘An em-ployé of a railway company is held, in law, to assume such risks as are ordinarily incident to the service he is employed to perform, but a risk which arises from the negligence of the railway company is not such risk as is ordinarily incident to the service, and is not such a risk as is assumed by the employé, unless^ the negligence, and the risk arising therefrom, be known to him, or would be known to him in the exercise of ordinary care, in the discharge of the duties of Ms employment, and where the risk is known to the employed, or would be known to him by the exercise of ordinary care, the risk is not assumed by him, and is not available as a defense where a person of ordinary care would have continued in the service, with the knowledge of the defect and danger; and so plaintiff in this case, when he entered the service of the defendant as switchman, assumed all the risks or danger ordinarily incident to such employment, as the law relating to the assumption of such risks is above explained, but he did not assume any risk or danger arising from any negligence of the defendant.’ ” The first proposition submitted is: “The issue of assumed risk was not raised by the evidence, and the court should not have given a charge thereon, and the giving of any charge thereon, and particularly the giving of the charge as given by the court, was calculated to mislead and confuse the jury and was prejudicial to the defendant.” We think the evidence warranted giving the charge of assumed risk. If it was not warranted, the charge being one of defense, it was not calculated to injuriously influence the jury against the defendant, and it was harmless.

Under appellant’s second proposition relating to the knowledge of appellee as to the'negligence of appellant, we see no error in the charge, but if error, it was one of omission, and no- special charge in relation thereto was requested by appellant, and it is in no attitude to complain.

3. The court charged the jury: “He [plaintiff] had the right to assume that defendant would perform its duty to exercise toward him, ordinary care, in other words, he had the right to assume that the engineer in charge of the locomotive would not, while the same was standing still, move the same without a signal so to do.” This, under the circumstances, announced a correct proposition of law, and the court committed no error in so telling the jury.

4. The appellant reserved bill of exception to the proceedings on trial as follows:

“Be it remembered that upon the trial of the above numbered and entitled cause the jury, after being instructed by the court, retired to consider their verdict on the morning of Wednesday, February 19th. The jury stayed in retirement considering their verdict the remainder of that day, and at adjourning time, to wit, 5 p. m., they had not agreed. Upon the court’s instructions they returned and considered further on Thursday morning; after being out all Thursday morning, they reported to the court at noon that they were hung and could not agree; the court thereupon made remarks to the jury substantially as hereinafter quoted, and instructed them to report back after dinner, at 1:30 p. m., to consider further their verdict. This they did, and remained out all Thursday afternoon; at adjourning time, 5 p. m., they again reported to the court that they were hung and could not agree, and asked to be discharged; thereupon the court delivered to them the following remarks:

“ ‘The Court: Have you been able to agree yet?
“ ‘Foreman: No, sir.
“ ‘The Court: Now, in order to restate, as I did this morning — I know you gentlemen appreciate the importance of arriving at a verdict, and I appreciate the responsibility on you. The court is now, you see, where it can’t turn a wheel. As I stated this morning, the only way we can transact business is through verdicts of the juries, because this is a jury case and nobody but a jury can render a verdict. I have no power. I don’t want the power of doing it. The law makes it your duty, and I think the law wisely leaves it with the juries. Now I don’t know —you see if you were to quit now and couldn’t agree, we would have to get another jury at the next term of court. I don’t know whether we could get a better jury than you are or not. Now I appreciate the fact that you have differences of opinion, and men of pronounced views and independent thought — they will have differences of opinion about a great many things. We very often agree, and generally agree, to disagree, but in this matter you all have to agree on something, or else of course if that is an impossibility, then I would have to discharge you. I don’t feel that — you see you just took this case yesterday, I believe about 1:30, and I don’t feel like with the .great expense that it will be to try this case Over, under the circumstances I don’t want to punish you gentlemen. I sympathize with you. I know some of you probably want to be at home with your families and looking after your business, and I certainly sympathize with you in that respect. If I were to simply consult my sympathy I would just simply tell you to go home, and we would try it before another jury. Now there is the right of the county and of the people to have verdicts if it is possible. Of course if you reach a point where you can’t agree, can’t get together, why then that is a different matter. I suppose you stand somewhat as you did this morning numerically?
“ ‘Foreman: Yes, sir; one change only.
“ ‘The- Court: Now, as I said, I don’t believe I ought to discharge you yet. I know you have been worrying over this matter all day, and I have an idea if you all go home and get a good night's rest and get back here in the morning — it very often happens when people sleep over their troubles, or over their work, why the next morning they may see things clearly that didn’t appear so the evening before. Now I want to say to you, gentlemen, that it is not my intention to try to force you into any verdict. I wouldn’t have a right to do that, and I certainly wouldn’t do it if I could. If I had a right to, I wouldn’t force you to it against your best judgment, but the point has come to this now: That I think you are at the end of another day’s work on the case, and yet you have only had about a day and a half consideration of it, and I am going to ask you to come back here in the morning and take it up where you left off, and consider it again and see if you can’t get together on a proposition that you can all agree to in regard to a verdict.’
“On Friday morning, acting upon the court’s instructions as above, the jury again retired to consider the case and remained out all Friday morning still being unable to agree, and so reported to the court and asked to be discharged, which request was again refused by the court, the court instructing them to return against at 1:30 p. m. to> consider further their verdict, which the jury did, and after being out until about 4 p. m. of Friday afternoon, the jury returned into court the verdict rendered in this case, to which action of the court in making said remarks to the jury, and particularly the portions thereof with reference to the expense to the county, and the fact that they would want to go home to their families and look after their business, and that the county and the people had a right to have verdicts, and insisting that the jury should agree, the defendant excepted, and now tenders this, its bill of exceptions No. 4, and asks that the same be allowed, which is accordingly done.”

While we do not approve the practice of lecturing the jury, as was done by the trial judge in this instance, we are not prepared to say that the language used influenced the verdict, or was calculated to Influence it one way or tlie other.

In the case of Railway Co. v. Johnson, 99 Tex, 337, 90 S. W. 164, where the jury, after retiring and considering the case for two days, returned into court and propounded the following question: “Is it legal and right for a jury, in ease they have failed to agree upon a verdict in a case, to make concessions in order to agree upon a verdict?” to which the court replied, “Will say that it is entirely lawful and proper to make concessions, provided, of course, your verdict as agreed to, is based alone upon the law as given in the charge, and the facts as you find from the evidence.” The testimony sharply conflicted upon the material issues, and Judge Williams, speaking for the court, held that the trial court should not have advised the jury at all, and says: “The fundamental objection to such instructions is that the law, in our opinion, prescribes no rule for the court to lay down except that the jury are to find in accordance with the truth as their judgments, honestly applied to the evidence, lead them to believe it to be, or, as their oath expresses it, ‘that they will a true verdict render according to the law and the evidence.’ AYhat prepossessions or inclinations of mind a juror may surrender consistently with an intelligent and conscientious discharge of this duty is for him alone to determine, for the reason that it is his judgment the law seeks to obtain, and he should be left to form it uninfluenced by advice from the court.”

In the other case cited by appellant, the objectionable remarks were as to the right of the jury to compromise. There is no language in the lecture given to the jury in this case that tells the jury they may make concessions, etc., but merely urges the necessity of arriving at a verdict.

In Railway Co. v. Darwin, 47 Tex. Civ. App. 219, 105 S. W. 825, a lecture very similar to the one in this case was delivered to the jury and the Third Court of Appeals held that no such error was committed as required a reversal of the ease. A writ of error was refused by the Supreme Court, and the Darwin Case was followed in Leland v. Chamberlin, 56 Tex. Civ. App. 256, 120 S. W. 1040.

We think no reversible error is shown, and that judgment of the court below is affirmed.