author: BOYCE, J.

text:
    KANSAS CITY, M. & O. RY. CO. OF TEXAS v. STARR et ux.
    (No. 1141.)
    (Court of Civil Appeals of Texas. Amarillo.
    March 28, 1917.
    Rehearing Denied May 2, 1917.)
    1. Railboads <§=357 — Duty to Discover Person on Track.
    It is the duty of a railroad company’s servants, operating its trains, to use ordinary or reasonable care to discover persons on tracks, and failure to do so is negligence on the part of the company, for an injury resulting from which it is liable, unless such liability is defeated by contributory negligence.
    [Ed. Note. — For other eases, see Railroads, Cent. Dig. § 1235.]
    2. Railroads <§=382(1) — Accident at Crossing-Contributory Negligence oe Child.
    That which would be contributory negligence in an adult while crossing railroad track would not necessarily be such in case of a child.
    [Ed. Note. — For other eases, see Railroads, Cent. Dig. § 1297.]
    3. Railroads <⅞=396(1) — Accident at Crossing — Contributory Negligence — Burden oe Prooe.
    Where a child was struck, in a manner not accounted for, by a train while crossing the track, the burden of proving contributory negligence was on the company.
    [Ed. Note. — For other eases, see Railroads, Cent. Dig. §§ 1341-1343.]
    4. Railroads <§=396(1) — Accident at Crossing-Negligence — Burden oe Prooe.
    Where a child was struck, in a manner not accounted for, by a train while crossing track, the burden of proving negligence of the company was on plaintiff.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1341-1343.]
    5. Railroads <§=398(1) — Accident at Crossing — Sueeicienoy oe Evidence.
    In action for death of child, struck in a manner not accounted for, by train while crossing track, evidence Aeld sufficient to show company’s negligence in not keeping proper lookout, and in suddenly moving cars without warning, proximately causing death.
    [Ed. Note. — For other cases, see Railroads, Cent Dig. §§ 1356, 1363.]
    6. Death <§=67 — Damages — Admission of Evidence — Value oe Child’s Services.
    In action for death of a 11-year old boy, his father’s testimony, showing the boy’s capability for work and his earning capacity, where the father testified that the boy helped him around the farm and cotton gin, and where the father employed other help, and it was fairly obvious that he knew the wages usually paid for labor, was admissible, and was not objectionable on the ground that such damages were too remote, the testimony affording some basis on which the jury could estimate the value of such services.
    [Ed. Note. — For other eases, see Death, Cent. Dig. § 88.]
    7. Evidence <§=546 — Opinion — Qualification of Witness — Court’s Discretion.
    The determination of preliminary questions of a witness’ qualification to express opinion is largely within the trial court’s discretion.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2363.]
    8. Death <§=104(5) — Damages — Instructions.
    In action for death of child, instructions stating that measure of parents’ recovery was the pecuniary benefits they would “in reasonable probability have received” during child’s minority held proper, and the probability of the boy’s death during that time was embraced within the instruction.
    [Ed. Note. — For other cases, see Death, Cent. Dig. § 146.]
    9. Railroads <§=332 — Crossing by Custom-Right to Go Around Obstructed Crossing.
    One crossing a railroad track at a place which has become a public crossing by custom has the right to pass around a car obstructing such crossing.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 1079.]
    10. Trial <§=203(2) — Refusal oe Requested Immaterial Issue.
    It was not erroneous to refuse to submit an issue which, under the facts, did not assist in determination of the case.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 478, 479.]
    11. Trial <§=251(8) — Refusal oe Instructions — Issue'Not Pleaded.
    Where defendant railroad company, in action for death at crossing, did not plead contributory negligence in choice of crossings, it was proper to refuse to submit that issue.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 593.]
    12. Appeal and Error <§=1004(1) — Review-Excessive Verdict.
    Where no accurate rule of damages exists, and no improper motive in estimating amount is shown, and the amount awarded does not indicate such fact, a verdict will not be disturbed for being excessive.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3944.]
    13. Continuance <§=22 — Absent Witnesses —Court’s Discretion.
    Where application for continuance on ground of absent witnesses is made on information and belief, and is indefinite, the granting thereof is within the court’s discretion.
    [Ed. Note. — For other cases, see Continuance, Cent. Dig. §§ 58-67.]

      14. Continúanoe @=»22 — Absent Witnesses —Sotitcienct of Application.
    Where application for continuance on the ground of absent witnesses was made on information and belief, and was indefinito, and no attempt to take depositions was shown, the refusal thereof held not an abuse of discretion.
    [Ed. Note. — For other cases, see Continuance, Cent. Dig. §§ 58-67.]
    Appeal from District Court, Wilbarger County; J. A. Nabers, Judge.
    Action by J. B. Starr and wife, against the Kansas City, Mexico & Orient Railway Company of Texas. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    H. G. McConnell, of Haskell, L. W. Allred, of Chillicothe, and H. S. Garrett, of San Angelo, for appellant. Berry, Stokes & Morgan, of Yernon, for appellees.
   BOYCE, J.

This appeal is from a judgment in favor of J. B. Starr and wife, Edna Starr, awarding them damages on account of the death of their minor son, J. B. Starr, Jr., a child a little under 11 years old at the time of his death, which occurred on November 26, 1915. It was alleged by plaintiffs that a footpath, commonly used by the public, with defendant’s knowledge and consent, crossed the tracks of the defendant in the town of Odell, and that, asi their boy was crossing the tracks along this footpath some ears were suddenly, and without warning, bumped over the crossing, running over the little boy, and injuring him so that he died on the next day; that the defendant was negligent in the movement of said cars, in that the same were moved by a pile-driving machine, incapable of switching or moving cars except by a sudden and violent movement; that no warning was given by the blowing of whistle or ringing of bell, and no lookout stationed at the end of the car to be moved, to warn those who might be on the track at the crossing. The defendant denied that it was negligent, and pleaded that the boy was himself negligent in going upon the track in front of the car, and that the plaintiffs were guilty of contributory negligence in permitting the child to go upon the tracks of the defendant.

The tracks of the defendant company ran through the town of Odell in a northerly and southerly direction. At the place of the accident there were three tracks; the west track being called the passing track. The middle track was the main track, and the east track was known as the house track. About 200 yards south of the depot a path ran across these tracks. This path had been used by’ the employés of the railroad company and the public generally for a long time, with knowledge on the part of the defendant and without protest, having been originally used in going to the depot, as first established. For some time before the accident defendant had a bridge crew working out of Odell, boarding in box ears which stood on the passing track at Odell. In their work they used a pile-driving machine, which consisted of a stationary engine, furnishing the power to operate the pile driver, placed on a car and connected with the wheels, so that it could propel itself and handle a car of material. The crew also used a motor car, and went to and from their work from Odell on the pile driver and motor car. The pile driver usually stood at night on the passing track. It was equipped with a whistle, but had no bell, and did not have the power or equipment to do regular switching. On the day of the accident the pile driver took out a fiat car loaded with ties, and the foreman desired to place the empty flat car, when he returned to Odell that evening, on the house track, so that it could be picked up by the local freight train. When he came in at noon he noticed that there were four cars of loaded cotton standing on the house track, near the south end of the track, in such position that there was not room enough for him to get the empty- flat car on the tracks and clear the derail, so that it would be necessary to move the loaded cars a few feet to the north before he could get the flat car on the track. The bridge crew were working about 2½ miles south of town, and when they quit work for the evening the foreman sent most of the men in on the motor ear, with instructions to release the brakes on the four cars preparatory to shoving them further up the track. It was realized that the pile driver would have to hit the cars hard to move them, and it. was the intention to have it run against them with what momentum it could gain. One of the crew, on arrival of the motor car, climbed up on the ladder at the northwest end of the car farthest north, released the brake, and went back and released the brakes on the other cars. About this time a railway clerk and one of the crew fastened one of the doors to one of the cars, walking around the north end of the cars;, another person passed by the car about this time. The car farthest north was standing at this time a few feet across the footpath referred to. None of the parties releasing the brakes and fastening, the door, just referred to, noticed any children around the car at the time. After performing the service referred to, the railway employes walked off some 70 feet to the southwest and watched the pile driver come in from the south and strike the cars; some discussion being had among some of the men as to whether it could move them. The testimony is conflicting as to whether the pile driver whistled, but there is testimony sufficient to support a finding that it did not. No lookout was stationed at the north end of the cars; the attention of the men being directed to the. movements of the pile driver, as stated. As the pile driver struck and the cars moved, a child screamed, and those near, on hurrying to the place, found the little Starr hoy on his hands and knees a few feet west from the front end of the car farthest north and about 8 feet north of the path. The track at this place was in a slight cut, and a younger brother, about 6 years old, of the injured boy, was standing crying on the embankment near his brother. The older boy was found to be hurt, the muscles and flesh being torn from his leg below the knee, and he died from the shock the next day. It was “dusky dark” and a “right smart of a sand storm was blowing” at the time of the accident.

The plaintiff J. B. Starr lived on the east side of the tracks, and he owned a gin which was on the west side, some 300 yards in a northwesterly direction from the place of the accident. The crossing of the track where the accident occurred was in line between the home and the gin. The smaller boy had been at the gin with his father; the mother had sent the older boy for him, and just before the accident the father had directed the two boys to go home, and they left for that purpose. Mrs. Liles, a neighbor, arrived at ths gin with word of the accident in about 8 or 10 minutes, according to plaintiff’s testimony, after the boys left. No one appears, from the record, to have seen the boys from the time they left the gin until after the accident.

The jury found specifically: That the defendant was guilty of negligence, “in the matter of bumping the cars with the pile-driving machine, handled by the crew in charge of it, in the manner they did, or in using the said pile-driving engine outfit to bump said cars, or in failing to give a signal by blowing a whistle”; that the defendant was guilty of negligence “in the matter of not keeping a lookout for persons crossing at or about the path”; that such acts of negligence proximately caused the injury to the boy; that the path was generally used by the public, with the knowledge and permission of the defendant; that the boy was not negligent in being at the place he was injured at the time he was; and that the plaintiffs were not guilty of negligence in allowing the boy to cross the tracks at the time and place he did.

The general principles of law governing the decision of such cases are well settled. In the case of T. & P. Railway Co. v. Watkins, 88 Tex. 20, 29 S. W. 233, the Supreme Court announces the law thus:

“The true rule is that it is the duty of the servants of the railroad company, operating its trains, to use reasonable care and caution to discover persons on its track, and a failure to use such care and caution is negligence on the part of such company, for which it is liable in damages for an injury resulting from such negligence, unless such liability is defeated by the contributory negligence of the person injured, or of the person seeking to recover for such injury; and the circumstances under which the party injured went upon the track are merely evidence upon the issue of contributory negligence. If such circumstances show that the party injured was a wrongdoer or trespasser at the time of the injury, the issue of contributory negligence is, as a general rule, established as a matter of law, but not so in all cases. It results from the above that it was the duty of the railroad to use ordinary or reasonable care to discover and warn defendant in error, whether she be considered a trespasser or a mere licensee, and a failure to use such care was negligence, rendering the railroad liable for such damage as resulted therefrom, unless, under all the circumstances, defendant in error was guilty of negligence contributing proximately to her injury.”

See, H. & T. C. Ry. Co. v. Sympkins, 54 Tex. 622, 38 Am. Rep. 632; M., K. & T. Ry. Co. v. Malone, 102 Tex. 269, 115 S. W. 1158; Ft. W. & D. C. Ry. Co. v. Longino, 54 Tex-Civ. App. 87, 118 S. W. 201; Id., 103 Tex. 250, 126 S. W. 8; St. Louis & S. F. Ry. Co. v. West, 174 S. W|. 287.

It is appellee’s theory that the boys, in obedience to the command of their father, were on the way home, using the footpath referred to; that as the older boy passed around the end of the car it was moved suddenly, as before described, and the injury resulted. This theory of the manner in which fehe accident happened is consistent with all the facts proven. Appellant has practically conceded that the finding of the jury as to negligence on its part in the sudden movement of the car, without warning and without having put a lookout in front of it, cannot be successfully attacked, but by its first seven assignments asserts, in various complaints of the rulings of the court below, that the evidence is insufficient to show that the injury was the proximate result of the negligence, since the evidence does not show how the injury was inflicted, nor what the little boy was doing at the time, so that it cannot be determined, either that proper precautions would have prevented the injury, or that it was not the result of some act of trespass of the boy himself.

The ear moved only about half a car length, and the boy was found near the front end of it, so that it is evident that he must have been hurt by the front wheels of the car, and all possible explanations of the accident must be based on the fact that the older boy was either just in front of the car, or on it in some position at the north end, and his little brother near by, on the ground. Now, if a lookout had been stationed at the front end of the car, to give warning of its movement, it is a reasonable conclusion that the boy, no matter what his position might have been, would have been discovered and the accident prevented; so that the only theory left which occurs to us might aid appellant is that the boy may have been playing under the car, or was on it, or attempting to get on it, thus being a trespasser, guilty of contributory negligence, relieving the company from liability. It is not very likely that the boy was playing under the front end of the car. It was getting dark, and d. sandstorm was blowing, so that such a place would seem to have little attraction. Neither does the suggestion that he was attempting to get on the car to steal a ride seem very-probable, except under a very limited state of circumstances. The car was merely bumped upgrade half a car length, its movement could have lasted but a few seconds, so that the boy, after the car started, in motion, even if he was very near, could hardly have conceived the idea of mounting it and put the impulse into execution before it stopped. The pile driver did not usually come in on this track, and the boy would not have known that the car was to be moved, unless he had come to this conclusion from observing the action of the employés in releasing the brakes, etc., and at this time conceived the idea of getting on the .car. The witnesses testified that it was sufficiently dark that a man would not have been noticed at any great distance.

Of course, it is possible that the boy, in passing, led by some childish impulse, climbed up on the front end of the car, which was standing across the path, or otherwise wandered from the path for some other reason. If a man had left the gin to go home, and been injured at the place where the boy was injured, the suggestion that he was under the car, or on it, or attempting to get on it, without some further fact being shown to indicate some reason for such conclusion, would be rejected as unreasonable. The same knowledge of childish habits and impulses that would make reasonable the suggestion that possibly the boy was loitering along the path, or had strayed from it, being under or about the car in some manner, would perhaps be sufficient to warrant the jury in acquitting the boy of the charge of contributory negligence that might be imputed to these acts. Eor what would be contributory negligence in the adult would not be necessarily such in the child. St. Louis S. W. Ry. Co. v. Bolton, 36 Tex. Civ. App. 87, 81 S. W. 126; Ollis v. H. E. & W. T. Ry. Co., 31 Tex. Civ. App. 601, 73 S. W. 30.

However, any of the theories that might avail the appellant anything are based on the assumption that the child was a trespasser, guilty of contributory negligence, and should, we believe, for this reason, if for no other, be rejected, because the burden of proof was on the defendant to establish any facts constituting contributory negligence. Lee v. I. & G. N. Ry. Co., 89 Tex. 583, 36 S. W. 65; G., C. & S. F. Ry. Co. v. Shieder, 88 Tex. 152, 30 S. W. 902, 28 L. R. A. 538. In the case of Lee v. I. & G. N. Ry. Co., supra, it had been found that the defendant was negligent, and the court, following a discussion of what the law would be, “if the deceased had been struck by the train in some maimer not accounted for,” says:

“The law presumes that the servants of the defendant were exercising due care in the operation of the train which killed Lee; but the plaintiff proved that they were not, which established her case. Upon the other hand, the law presumes that deceased was in the exercise of due care when he was killed, and it devolved upon the defendant to prove that he was not, in order to relieve itself of the liability fixed upon it by its negligent acts causing the death.”

These two little boys left the gin a few minutes before the accident under command to go home. We find them on the way home, at a place where, under the evidence, they had the right to be. If the ear extended over the path, they' could go around it, and the little boy was about where he would be if he had been struck as he started around the end of the ear. The position of the younger brother is natural, as being behind, following the larger boy. They evidently could not have been at the place long before the accident. We think these facts sufficiently answer the pertinent questions put by the court in the case of T. & P. Ry. Co. v. Shoemaker, 98 Tex. 451, 84 S. W. 1050, which a failure to answer was held to be fatal to plaintiff’s right to recover. The negligence of the defendant is admitted, and, as we have seen, it reasonably appears that but for this negligence the injury to plaintiff’s boy would not have-resulted. No acts constituting contributory negligence on the part of the boy having been shown, we cannot, under the authorities cited, presume that the boy was doing something that might constitute contributory negligence.

We have not attempted to discuss the facts of the many cases which may be found relating to accidents of this kind, but have sought to ascertain the principles of law controlling the decisions and apply these to the particular facts in this case. The following cases, in addition to those we have already cited, will be found to be more or less analogous in the facts and legal principles involved: Washington v. M., I-C. & T. Ry. Go., 90 Tex. 314, 38 S. W. 764; G., C. & S. F. Ry. Co. v. Matthews, 99 Tex. 160, 88 S. W. 192; Id., 89 S. W. 983; Ft. Worth & Denver City Ry. Co. v. Longino, 54 Tex. Civ. App. 87, 118 S. W. 201; Ft. Worth & Denver City Railway Co. v. Broomhead, 140 S. W. 820; St. Louis S. W. Ry. Co. v. Bowles, 72 S. W. 452; T. & N. O. Ry. Co. v. Brouillett, 59 Tex. Civ. App. 337, 126 S. W. 287; Texas Midland Ry. Co. v. Crowder, 25 Tex. Civ. App. 536, 64 S. W. 90. A rather elaborate collection and discussion of the cases will be found in the case of St. Louis & S. F. Ry. Co. v. West, 174 S. W. 287.

Complaint is made by the eighth assignment of the admission of the testimony of J. B. Starr, as to the value of the services of a 15 year old boy, because damages based on such testimony would be too remote and speculative, and also because the witness had not shown himself qualified to testify as to such matter. The measure of damages as given by the charge of the court was:

“Such sum of money, if paid now,' as will fairly and justly compensate plaintiffs for the loss of the pecuniary benefits they would in reasonable probability have received from the deceased boy, had he not died, from the 25th day of November, 1915, until he would have been 21 years of age, after deducting the reasonable cost of his maintenance and education until ho should have arrived at the age of 21 years.”

Plaintiff had testified that the hoy was a bright, energetic, and obedient child; that he did a great deal of work in helping his mother, and on the farm; and that his services at thé time of his death were worth to the plaintiff $300 per annum. Following this testimony, the plaintiff gave the testimony objected to, testifying that a 15 year old boy could do nearly a man’s work; that he could help him around the gin and on the farm, and the services of such a boy were worth about $1.50 -per day. We think testimony of this character was admissible for the purpose of aiding the jury in coming to a conclusion on the subject. While, of course, the jury did not have to conclude that the father would work the boy all the time as if he had been hired out by the year, the testimony afforded some basis on which to estimate the value of such services as they might find the boy would have rendered his parents. The father had older boys than this one; he worked men on the farm and in the gin, and while it was not shown by direct evidence that he knew the wages usually paid for labor, it is fairly evident from his testimony that he did. The determination of the preliminary question of qualification is largely within the discretion of the trial court, and under the circumstances we think the objection to the testimony goes more to its weight .than it’s admissibility. ^ .

The tenth assignment complains of the giving of the charge, as above quoted, as to the measure of damages, because it, as appellant asserts, assumes that the boy would have reached the age of 21 years. We do not think this objection to the charge is well taken. The age of maturity is merely the limit of the time in which the'parents would be entitled to the services of the boy. The jury were told that the measure of plaintiff’s recovery was the pecuniary benefits they would “in reasonable probability have received” during such time. The probability of the boy’s death during the time would, we believe, be embraced within this statement.

The appellant requested the court to submit an issue to the jury as to whether the boy was at the time he was injured in the path, and by its ninth assignment complains of the court’s action in refusing to submit the issue as requested. The evidence is to the effect that the path was about two feet wide, and all of the testimony tends to show that the north end of the car extended over this path some few feet. Persons traveling the pathway would be expected to walk around the end of the ear standing stationary in this way and should be treated in the same manner as if they were literally in the path. Oye. vol. 33, pp. 931, 932. So we do not think an answer to the question would assist in determining the liability of the 'defendant in this case. The plaintiff alleged that the child, when struck, was “passing along said public road or crossing, and crossing the track along said public road or crossing,” and appellant contends that, if the issue had been submitted and answered in the negative, 'it then could have urged a variance between the allegations and the proof. The testimony offered by the plaintiffs is to the effect that the car extended a few feet across the track, and under their theory the child was necessarily struck while literally out of the path, so that the question of variance could have been raised on the presentation of the evidence’.

The evidence shows that there was a regular public crossing for vehicles and travelers of all classes over defendant’s track near the depot some 200 yards north of the place of the accident; and by the eleventh, twelfth, and thirteenth assignments appellants complain of the action of the court in refusing to submit special issues requested by it as to whether there wefe two ways of about equal distance from plaintiff’s gin to his home, one safe and the other unsafe, and whether such facts were known to the plaintiff. Both ways crossed - all three of the tracks above described. There was no switch engine at Odell, and no train in sight when the boy's left the gin. The pile driver did not usually do switching, and usually stood on the passing track some distance from where the path crossed the tracks. The defendant pleaded that the plaintiffs were guilty of negligence in allowing the child to go upon and across defendant’s tracks, and that the boy was guilty of negligence in being on the track at the time he was struck, but did not specifically plead contributory negligence in-the choice of routes. We think that under these circumstances this issue was not in the ease. T. & P. By. Oo. v. Johnson, 34 S. W. 192; Id., 89 Tex. 519, 35 S. W. 1042. However, if the issue had been pleaded, we do not think any harm could have resulted from failure to submit it. The testimony does not indicate that the plaintiff or the child had any reason to believe that the path was not as safe' as the road crossing, nor suggest any dangers incident to its use that might not also be incurred at the road crossing.

The fourteenth assignment complains of the verdict as being excessive. We have already referred to plaintiff’s testimony as to the kind of boy the deceased was and as to the value of his services. There is no rule by which we can make any sort of accurate estimate as to the amount of damages in such cases, so that we- could not, with any confidence, say that the amount awarded here was excessive. There is nothing to show that the -jury was actuated by any improper motiv.e in coming to its conclusion, and we are not prepared to say that the amount awarded is so large as to indicate such fact. We do not feel at liberty to disturb the verdict.

The defendant, when the case was called for trial, made its first application for a continuance, on account of the absence of Clyde Nations and Mrs. J. M. Liles. The application stated: That the defendant expected to prove by the witness Clyde Nations that the boy stated, a few minutes after he had received his injuries and in the presence of the said Clyde Nations, that he was under the car which caused the injuries to him at the time it began to move, and that he tried to and did run out from under said car. That defendant expected to prove by Mrs. Liles that the injured boy and his brother were playing at her home with her children some time during the evening, and left her house for their home a sufficient length of time before the accident to have enabled them to have reached their home. That the witness Clyde Nations was at the time of the accident in the service of the defendant, subsequently leaving it and going into the service of the Texas &' Pacific Railway Company, and said company had agreed to allow him to attend the trial. That he had promised to be present at the trial, 'but was not because he was unable to attend, being sick in the hospital at Marshall, Tex. That Mrs. Liles’ husband was in the employ of the defendant in another county, hut both the husband and the wife had promised to attend the trial, but the wife did not do so because she was sick and unable to attend. That defendant did not know that said witness could not attend the trial until the day preceding the call of the ease. The affidavit to the motion was made by one of the attorneys, who stated that the facts stated in the motion were true within his knowledge and belief. The court appended a qualification to the bill of exceptions, complaining of the action of the court in overruling the motion for continuance, stating that the case had been set for trial by agreement of counsel about a week before it was called for trial, and the motion was indefinite as to when there had been any communication with said witness, and no showing of any effort to get their depositions. The application was not a statutory one, being made on knowledge and belief, and no showing made as to what facts were stated on knowledge and what on belief, nor the source of information on which the belief was founded. The witnesses resided out of the county, no interrogatories had been propounded to them, neither of the witnesses were in tlie service or control of the defendant, and it was not shown how long they had.been sick, nor when their attendance was requested after the case was set for trial. The application was thus addressed to the discretion of the lower court. We do not think the record shows an abuse of such discretion. K. O., M. & O. Ry. Co. of Texas v. Wells, 142 S. W. 670; St. Louis S. W. Ry. Co. v. Harkey, 39 Tex. Civ. App. 523, 88 S. W. 506.

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

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


source: Caselaw Access Project

author: DAVIS, J.

license: Public Domain

text:
    HOUSTON E. & W. T. RY. CO. v. CAVANAUGH.
    (No. 158.)
    (Court of Civil Appeals of Texas. Beaumont.
    Feb. 8, 1917.
    Rehearing Denied March 7, 1917.)
    1. Appeal and Ebror <©=31199 — Remand — Bill ‘op Review Apteb Mandate pbom Appellate Court.
    Bill of review will lie in district court after judgment of an appellate court and after mandate has been issued for observance without leave granted by appellate court.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4674-4676.]
    2. Appeal and Eeeob <©=31133 — Aepiemance.
    Where,' because of trial court’s failure to file findings of fact, appellate court cannot say upon which of two theories court based judgment, decision will be affirmed where there is sufficient testimony upon which to base decision on either theory.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4450-4453.]
    3. Appeal and Eeeob <@=1097(1) — Prior Appeals — Law oe Case — Aeeiemance.
    Where Court of Civil Appeals has in a previous decision in same ease passed upon identical question now before it, even if it was dictum, and appellant having urged upon Supreme Court identical question -on motion for writ of error which was refused, judgment will be affirmed.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4358, 4359, 4363, 4427.]
    4. Appeal and Eeeor <©=1010(1) — Evidence Amply Sufficient to Support Court Findings.
    Where evidence is amply sufficient to support findings of court, they will not be disturbed on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3979-3981, 4024.]
    Appeal from District Court, Angelina County; L. D. Guinn, Judge.
    Suit by the Houston East & West Texas Railway Company against M. D. Cavanaugh. From a judgment refusing writ of injunction prayed for, plaintiff appeals.
    Affirmed.
    See, also, 173 S. W. 619.
    J. T. Garrison • and Baker, Butts, Parker & Garwood, all of Houston, and Mantooth & Collins, of Lufkin, for appellant. Woods, King & John, of Houston, for appellee.
   DAVIS, J.

The appellee, M. D. Cavanaugh, instituted a suit in the district court of Angelina county, Tex., returnable to the fall term, 1913, to recover damages for personal injuries sustained by him from .the effect of an explosion of dynamite in appellant’s depot in the town of Lufkin on the night of March 2, 1913.

The case was tried by the court without a jury, and resulted in judgment for the plaintiff in the sum of §7,500, and defendant appealed to the Court of Civil Appeals at Galveston, Tex., and which court affirmed the judgment of the lower court. A motion was then urged for a rehearing, which being overruled, the case was carried to the Supreme Court on a writ of error, which was refused by that court.

Thereafter, on April 17, A, D. 1916, the mandate issued out of the Court -of Civil Appeals to the district court of Angelina county for observance, and execution was issued, and a levy was made under said execution upon property of appellant to satisfy this judgment.

April 18, 1916, appellant. filed its motion or bill of review, in the district court of Angelina county, in which it sought to set aside the judgment in favor of M. D. Cavanaugh, and against the Houston, East & West Texas Kailway Company, for the sum of $7,500, and prayed for the issuance of a temporary writ of injunction against the parties interested in said judgment, to stay the collection thereof until a trial could be had, and in which motion or bill of review, appellant urges, in substance as follows:

Eirst. The appellee, M. D. Cavanaugh, in his petition filed in the original suit in the district court of Angelina county, Tex., recovered damages against the railway company for personal injuries received by him, caused by an explosion of dynamite in defendant’s warehouse on March 2,' 1913, because of the alleged negligence of the defendant, railway company as follows:

(1) That defendant company was negligent in storing in its depot on the night of March 2, 1913, dynamite in excess of 25 pounds, and in violation of an ordinance of the city of Lufkin.

(2) In maintaining a nuisance, by permitting to be kept in store great quantities of

■dynamite and gasoline in its depot in the town of Lufkin, where a large number of people congregated daily for the purpose 'of taking passage on various trains.

(3) That on said date, March 2, 1,913, the defendant permitted large quantities of dynamite and gasoline to remain in its warehouse, and negligently permitted the gasoline containers to become and remain in leaky condition, and the warehouse to collect the gas and vapors arising from the escaping gasoline, and while in such condition permitted its employé George Frank Parsons to enter the warehouse in discharge of his duties, who, while there, stepped upon or struck a match, igniting the gas arising from the escaping gasoline, causing the dynamite to explode; that the explosion of said dynamite resulted in serious and permanent injury to plaintiff.

Second. The defendant railway company in its answer in the trial court alleged that said dynamite was not exploded by reason of any accident, or by reason of any negligence on the part of the railway company, but alleged that said dynamite, consisting of 200 pounds, was stored in its warehouse on Friday evening before the explosion occurred on the following Sunday night, and that said George Frank Parsons, who was then an employé of the defendant railway company, willfully. and deliberately exploded said dynamite with criminal intent, and in which the defendant railway company was in no way connected, nor responsible. It was also alleged, and testimony offered upon the trial of the case tending to establish, that George Frank Parsons, holding life insurance policies in considerable amounts, and in order to deceive, and further to .arrange matters so that the beneficiaries named in the policies might collect same upon his death, deliberately and willfully caused said explosion, stole a railroad ticket from the defendant company, and fled the country.

Third. Since the affirmance of this case by the Court of Civil Appeals, and before the overruling by the Supreme Court of the railway company’s motion for rehearing for a writ of error, George Frank Parsons was apiprehended in California, brought back and placed in the county jail of Angelina county, Tex., and therefore was not dead when the’ judgment was rendered which is here sought to he set aside, and the collection of same enjoined.

Fourth. The judgment here sought to be set aside was procured upon facts that were not true, but false, in that:

(1) Parsons at the time of the trial was not dead, but alive.

(2) The dynamite was notv exploded accidentally by Frank Parsons while in the discharge or performance of duties he owed to the railway company, but was intentionally done in violation of the law.

Fifth. The dynamite which had been stored in defendant’s warehouse on the'night of March 2, 1913, had been received by it from its connecting carriers at Shreveport, La., consigned to a party at Lufkin; that same was an interstate shipment, and that the handling and storing of said dynamite was controlled and governed by the laws of Congress regulating the handling of high explosives; that under the law of the Interstate Commerce Commission it is the duty of the railway company to accept for transportation dynamite, and the law requires and permits said dynamite to be stored in the carrier’s warehouse, conditioned that it does not remain longer than 48 houjjs, Sundays excepted; that the dynamite which exploded had not remained in defendant’s warehouse 48 hours at the time of the explosion.

Appellant’s motion to set aside the judgment' and praying for an injunction to restrain the collection of the same can be summed up in three propositions:

(1) George Frank Parsons though found by the trial court in the original suit to be dead, • is alive, and will now testify that he intentionally and unlawfully caused tlie explosion as an independent act of his own, witli which the defendant railway company was in no way connected, nor responsible for.

(2) That the dynamite was not accidentally exploded by George Frank Parsons while in the actual discharge or performance of any duty he owed-to the railway company.

(3) That the shipment of dynamite was an interstate shipment, and covered by the laws of Congress regulating the handling of high explosives; and under the law of the Interstate Commerce Commission defendant was required to accept from its connecting carrier shipment of dynamite, and was under the law allowed 48 hours, Sundays excepted, to store the dynamite in its warehouse; and •that this shipment had not remained in its warehouse for that length of time, and hence defendant railway company -would not be guilty of negligence in storing the dynamite in its warehouse.

To this appellee filed his plea in abatement and answer.

The court on May 23, 1916, sitting at Luf-kin, Angelina county, Tex., in chambers, heard evidence to determine whether or not a temporary writ of injunction would be granted to restrain the collection of the judgment, and the court, after hearing the evidence, entered its judgment refusing to grant the writ of injunction prayed for, and from which judgment the plaintiff railway company has appealed to this court.

We do not agree with the contention urged by appellee that a bill of review will not lie, after (a judgment of an appellate court has been rendered, and after mandate has issued to the lower court for observance, except on leave duly granted by the appellate court for the filing of such bill. While the authorities are not in accord on this question, we think the great weight of authority as against the proposition. R. S. art. 4653; Patrucio v. Selkirk, 160 S. W. 635; Ragsdale v. Green, 36 Tex. 193; Chisholm v. Day, 1 White. & W. Civ. Gas. Ct. App. 527; McKean v. Ziller, 9 Tex. 58; Owens v. IPoley, 42 Tex. ’ Civ. App. 49, 93 S. W. 1003; Taylor v. Fore, 42 Tex. 256.

It was urged by appellant as a defense in the original suit in its answer, and by proof upon the trial, and also on appeal in the Court of Civil Appeals, and before the Supreme Court for writ of error, and especially before the Supreme Court on motion for rehearing for writ of error, that George Frank Parsons was not dead on the date judgment was rendered in the trial court, but alive, and that George Frank Parsons willfully and intentionally exploded the dynamite which injured M. D. Cavanaugh while he was not in the discharge of any duty he owed to the company; that' the act of exploding the dynamite was an independent and unlawful act of Parsons, with which the' defendant railway company was in no way connected nor responsible for. To this contention so strenuously and ably urged before the Court of Civil Appeals, the appellant railway company in that case received from the Court of Civil Appeals through its opinion the following answer:

“The substance of this proposition is that, if Parsons caused the explosion of dynamite, either intentionally or accidentally, while not in the discharge of any duty he owed appellant, under his employment, the appellant would not be liable to plaintiff for the injuries received from the explosion. This proposition presents a question of law and does not call for a review of the facts. The court did not file its findings of fact, and we cannot say, therefore, whether its judgment was based upon the view that Parsons caused the explosion intentionally, or that he did so by accident. That Parsons caused the explosion does not seem.to be controverted. The testimony in the record is sufficient to base a finding in favor of the plaintiff upon either of these theories. We shall assume, in support of the judgment, however, that the court found that Parsons unintentionally caused the explosion. If he did, we think that, under the facts proved, the appellant was liable for the injuries to plaintiff caused by the explosion.”

This proposition, was again ably urged before tbe Supreme Court on motion for writ of error, and again on motion for rehearing, and was before all the courts most earnestly urged.

The Supreme Court has held that the denial of a writ of error is not an approval by it upon all the legal propositions decided by the Court of Civil Appeals; but if the judgment of the Court of Civil Appeáls is correct upon one issue of fact, which should authorize the affirmance of the judgment, writ of error will be denied, although the Court of Civil Appeals made erroneous legal decisions upon other propositions; but in view of tbe fact that tbe Court of Civil Appeals has passed upon this identical question, even if it was dictum, and the Supreme Court, having pressed upon them by appellant in its motion for writ of error this very question, overruled same, and refused a writ of error, we think we should affirm the judgment in this case.

The trial court, upon hearing the testimony in this case, denied the temporary writ of injunction. The evidence is amply sufficient to sustain his findings; and the case is therefore affirmed.
      <g:3For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BUCK, J.

text:
    COZART et al. v. WESTERN NAT. BANK OF FT. WORTH.
    (No. 8547.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    March 3, 1917.
    Rehearing Denied March 31, 1917.)
    1. Banks and Banking <⅜=⅛4(9) — Action eor Deposit — Jury Question — Ownership. In an action to recover money deposited with defendant bank, the ownership of fund held a jury question.
    [Ed. Note. — Eor other cases, see Banks and Banking, Cent. Dig. §§ 530-533.] .

      2. Banks and Banking <®=j154(9) — Deposit — Jury Question — Representations Regarding Ownership.
    Evidence 'that money deposited with, defendant bank was credited to order of a proposed hank and that defendant’s cashier so stated made it a jury question whether the money was deposited for the proposed bank or for individual benefit of the depositor.
    [Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §§ 530-533.]
    3. Banks and Banking Deposit to Credit oe Third Party — Relationship Created.
    Ordinarily, where one person deposits money in a bank to the credit of another, the bank is a debtor of the-designated principal, and not of the depositor.
    [Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §§ 316-318, 383.]
    4. Banks and Banking <®=^154(7) — Deposit —Evidence.
    In action to recover money 'deposited' with defendant bank for credit of a proposed 'bank, evidence that six days after the deposit the depositor applied for a bank charter is admissible on question of his good faith in representing that deposit was for the proposed bank.
    [Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §§ 522-525.] ,
    5. Banks and Banking <@=>1'54(6) — Deposit —Recovery—Burden of Proof. *
    In action to recover a deposit in defendant bank for credit of a proposed bank, the defendant has the burden of proving that such proposed bank or its stockholders were not entitl§d to the fund in preference to the depositor, where defendant’s cashier had recognized such fund as belonging to the proposed corporation.
    [Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §§ 518-521.]
    Appeal from District Court, Tarrant County ; Ben M. Terrell, Judge.
    Suit by T. A. Cozart and others against the Western National Bank of Ft. Worth. Judgment for defendant, and plaintiffs appeal.
    Reversed and remanded.
    B. L. Agerton, of Ft. Worth, B. D. Das-hiell, of Jacksonville, and M. C. H. Park, of Waco, for appellants. Miller & Miller, G. C. Johnson, and I. W. Stephens, all of Ft. Worth, for appellee.
   BUCK, J.

T. A. Cozart and 20 others filed this suit against the Western National Bank, alleging that they, together with one C. Thompson, and 10 others, contemplated the organization of a state bank to be located at Flynn, Tex., same to be known as the Citizens’ State Bank, with a capitalization of $10,000; that to that end plaintiffs subscribed and paid to the contemplated stock of said bank the sum of $5,050, in amounts ranging from $50 to $500; that C. Thompson and the 10 others, who were not plaintiffs, did not pay the amounts subscribed by them; that the Citizens’ State Bank was never organized, and its organization was abandoned, but that on or about February 1, 1911, in pursuance of their purpose of incorporating said bank, plaintiffs deposited and caused tó be deposited in the defendant bank the sum of $1,500 in cash, and that said deposit was made in the bank of defendant for the use and benefit of plaintiffs, and to the credit of the Citizens’ State Bank of Flynn, Tex.; that the amount so deposited was a part of the aggregate of $5,-050 subscribed and paid by the plaintiffs for the. purpose aforesaid, and that therefore plaintiffs were the owners of the amount so deposited, and have ever since been such owners; that plaintiff, T. A. Cozart, was elected president of the board of directors Of the contemplated Citizens’ State Bank of Flynn, and that after the abandonment of the contemplated organization of the Citizens’ State Bank of Flynn said Cozart demanded of defendant, for the use and benefit of himself and his coplaintiffs, the $1,-500 aforesaid, and that, in response to said demand, defendant bank acknowledged having the said $1,500 subject to check by proper officer of the Citizens’ State Bank of Flynn, and stated that it was unable to advise just how that amount could be drawn, ánd that subsequently, to wit, March 27, 1911, the defendant refused to pay plaintiffs, or any of them, the foresaid $1,500, or any part thereof, and on said last-named date defendant for the first time asserted ownership of said $1,500. Wherefore plaintiffs prayed judment.

Defendants, after general demurrer and general denial, pleaded that on February 1, 1911, C. Thompson was indebted to the defendant bank in the sum of $1,500 for money loaned, and applied to said bank for the extension of said loan, claiming that he was about to organize the Citizens’ State Bank of Flynn under the laws of Texas, and that in order to organize said bank he would have to have the cash on hand in order to comply with the law and as a basis for the affidavit required to be made; that he proposed to the president of the defendant bank that, if the bank would grant the extension requested, he would place the $1,500 with the bank, being the money he had subscribed and paid in preparatory to the organization of said state bank, and would leave said deposit in said defendant bank without being subject to check until the organization of said state bank; that when said state bank was organized he would pay said indebtedness, it being represented by said Thompson that he was to be the managing officer of said state bank when organized. Relying upon these representations, and believing that said Thompson was acting in good faith, the defendant bank, through its president, agreed with said Thompson to grant the extension of credit requested, and for convenience and as a matter of accommodation to said Thompson placed said sum to the credit of said state bank thereafter to be organized, in the expectation" and belief that same would be organized as represented by Thompson, and that the said Thompson would then promptly pay off said indebtedness through said state bank. It was further alleged that since said extension was granted defendant had learned that Thompson falsely represented his intentions and purposes, with reference to the organization of said state bank, and that he was engaged in fraudulent schemes to obtain money and credit from the defendant on the false pretenses that he was about to organize said state bank; that while laboring under this deception the cashier of the defendant bank, in the absence of the president and without being informed of the terms of the loan or extension of loan made through the president, did telegraph to T. A. Oozart, on March 7, 1911, in terms substantially as claimed by plaintiffs; that by reason of the alleged bad faith and misrepresentations of 0. Thompson defendant was caused to make the loan aforesaid. Defendant denied that any part of the $1,500 deposited with it had been subscribed and paid in by the plaintiffs, but that, if it should develop that any part of said amount was so paid in by plaintiffs, the defendant was ignorant of this fact when it had the transaction with Thompson, and believed said money had been subscribed and paid in by said Thompson, and defendant further alleged that plaintiffs and Thompson were a partnership, and that Thompson had been authorized by plaintiffs to organize for them, in connection with himself and others, said state bank, and to make the representations alleged to have been made by him to defendant. It was further alleged that, if defendant should be mistaken as to the purpose and intention of said Thompson to organize said state bank, and mistaken as to the alleged partnership relation between said Thompson and plaintiffs, yet the abandonment of the proposed organization occurred subsequent to the alleged misrepresentations made by Thompson, and that plaintiffs were estopped by reason of the premises. It was further alleged that the $1,500 deposited with defendant bank was furnished by the Citizens’ Bank of Flynn, a private bank owned and controlled by said Thompson, and that the deposit in fact represented the money of said Thompson.

In a supplemental petition plaintiffs denied the allegations of defendant’s answer, and excepted generally and specially thereto. Testimony having been introduced, the court instructed the jury peremptorily for defendant, and from the judgment in favor of defendant, plaintiffs appeal.

Appellants’ sixth assignment complains of said peremptory instruction, and we are of the opinion that the assignment should be sustained. We think the testimony of T. A. Cozart, and other evidence, certainly makes the question of whether the $1,500 was in fact the money of the plaintiffs, or of Thompson, at the time it was deposited with the defendant bank, at least issuable. Cozart testified that he paid $500 for himself and $100 for his baby girl, in money, for the purpose of forming tire Citizens’ State Bank; $500 for his brother, G. D. Cozart; $300 for J. H. Seale; $500 for Otho Youngblood; $200 for G. A. Shepherd; $200 for R. W. Kirkpatrick ; $200 for L. E. Fifer; that he knew G. T. Roüse paid $200; that J. T. Douthitt gave his check for $500; and that Ed Watson and M. L. Watson gave a check for $200 each; J. D. Erwin, $200; D. W. Erwin, $100; W. C. House, $200; L. S. Wilmer, $50; E. F. Rollins, $200; Roy and Virgil Reed, $100 together; W. E. Reed, $100, etc. It is true that on cross-examination he testified that he was not certain that in all instances the checks given by the various proposed stockholders were actually paid; yet as to others he was certain. He further testified that some of those, at least, who had subscribed and paid their subscriptions had recovered out of a fund deposited in a Houston bank a certain proportion of the amount so subscribed. Still this partial modification of his testimony on direct examination would go rather to the weight than, to its legal effect with reference to the cause of action pleaded, and would present a question of fact for" the jury as to the right of any one plaintiff to recover his proportionate part of the fund deposited in the defendant bank.

■ [2, 3] Moreover, the record presents a question of fact for the jury as to whether the $1,500 deposited in the defendant bank by Thompson was represented by Thompson to the president of the defendant bank to be his own money, or a part of the general fund raised from the subscriptions of the various proposed stockholders. The fact that the deposit was placed to the credit of the Citizens’ State Bank of Flynn, and that the cashier of the defendant bank, in answer to a telegraphic inquiry made to said bank, informed T. A. Cozart, who was acting for and on behalf of himself and the other plaintiffs, that said $1,500 was subject to the check of the Citizens’ State Bank, when such check was signed by the proper officer, raises an issue of fact for the jury’s determination as to the understanding of the defendant and its managing officers as to the character of such fund and its ownership at the time of such deposit. Ordinarily, where one person deposits money in a bank to the credit of another, the relation of creditor and debtor arising will be between the designated principal and the bank, and not between the agent or depositor and the bank.- 2 Michie on Banks & Banking, 893, § 119. It is true that in the instant case the designated principal was a proposed corporation, which was not in fact organized; yet the stockholders who had paid their subscriptions and whose money, in whole or in part, made up the deposit, would have an interest in the fund proportionate to the amount so contributed. The further fact that Mr. Eddleman, president of the defendant bank, testified that his I understanding with Thompson was that the $1,500 note extended should he paid by the Citizens’ State Bank after its organization gives support to the contention that the deposit was in fact, as it purported to be, in favor of the Citizens’ State Bank, to be organized, and consequently that the stockholders contributing to the fund would have an interest in such fund proportionate to their contributions. Furthermore, the evidence discloses that the deposit made in the deT fendant bank arising out of the transaction between said bank and Thompson was in the form of a draft drawn on a Houston Bank by A. M. Beeman, cashier of the Citizens’ Bank of Flynn, and the elected cashier of the proposed Citizens’ State Bank of Flynn, and was made payable to the order of the Citizens’ State Bank, indorsed by the Citizens’ State Bank, “A. M. Beeman, Cashier.” This draft was paid by the Houston bank, through the clearing house, and defendant credited the Citizens’ State Bank therewith, as heretofore stated. This is another circumstance tending to show notice to the defendant bank of the interest of the plaintiff stockholders in the $1,500 deposited. It is a further circumstance that O. P. Haney, cashier of the defendant bank, testified that up to the time this controversy arose he had not been informed by Mr. Eddleman, the president, of any understanding between said Eddleman and Thompson with reference to the deposit in the name of the Citizens’ State Bank, and that he knew nothing of any such agreement. In his letter of March 18, 1911, to T. A. Cozart he states that the $1,500 was placed to the credit of the Citizens’ State Bank by a draft of the Citizens’ Bank of Flynn on Houston, and suggests that this amount can be drawn by the bank that sent the defendant the amount, thus evidently refraining from asserting any claim on the part of the defendant hank to such deposit. Hence we conclude that the trial court erred in giving the peremptory instruction for defendant.

Under another assignment complaint is made of the action of the trial court in excluding the introduction of the written application of C. Thompson and others to the state banking board for a charter. This application recites that C. Thompson, as president, and A. M. Beeman, as cashier, acting for and on behalf of the Citizens’ State Bank, made application, for authority for said state bank to accept the privileges granted under the act of the Thirty-First Legislature (chapter 15 of the General Laws of the Second Called Session) said application being verified by affidavit of said Thompson and Bee-man. The application is dated February 7th, six days after the alleged conversation between Thompson and Eddleman. We think this evidence was admissible on the question ■ of the good faith of the representations alleged to have been made by Thompson to Eddleman that he was proposing to organize the bank at Flynn. While it is true that the evidence shows thát the commissioner of banking and insurance refused to grant such authority to the proposed bank so long as Thompson was connected with such proposed incorporation, and that by reason of such refusal on the part of said officer the incorporation of the bank in question was abandoned, and the evidence further shows that at the time of the trial Thompson’s whereabouts were unknown to the witnesses, yet the fact that Thompson later absconded, if he did so, would not determine the probative effect of the tendered evidence on the issue of the then good faith of Thompson in the statement made as to his intentions.

In view of another trial, it is proper for us to state that, in our opinion, the court did not err in permitting the witness Ed-dleman to testify with reference to circumstances under which the deposit in his bank was made; such testimony being the purported history of the transaction.

We are of the opinion further that, the deposit in the defendant bank having been made in the name of the Citizens’ State Bank, and under the further facts of this case, the burden of proof was on the defendant to show that, in fact, the Citizens’ State Bank, to be organized, and, upon the failure • of , the incorporation of said bank, the contributing stockholders, had no interest in the fund. The plaintiffs having established their contribution to the general fund, that the deposit made in the defendant bank was in the name of the proposed corporation, that the cashier of the defendant bank recognized that such fund belonged to the proposed corporation and was a part of its assets, that the .money actually deposited in the defendant bank was the proceeds of a draft drawn in favor of the proposed corporation, we are of the opinion that the plaintiffs had made a prima facie showing as to their right of recovery generally.

The judgment is reversed, and the cause remanded.
      ©=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <&=oFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HIGGINS, J.

text:
    FIRST NAT. BANK OF GORMAN v. MANGUM et al.
    (No. 690.)
    (Court of Civil Appeals of Texas. El Paso.
    April 5, 1917.
    Rehearing Denied May 3, 1917.)
    1. Limitation oe Actions <§=H27(4) — Commencement oe Action — Amendment oe Pleading.
    Where amendment to petition filed more than two years after breach of contract sued on does not show on its face that recovery for such items was not sought in original petition, it does not show that recovery therefor is barred by two-year statute of limitations.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. § 544.]

      2. Appeal and Error <©^>1097(1) — Former Decision as Law Op the Case.
    Unless very clearly erroneous, rulings made upon a former appeal should be deemed the law of the case in all subsequent proceeeflings.
    [Ed. Note — For other cases, see Appeal and Error, Cent. Dig. §§ 4358, 4359, 4363, 4427.]
    3. Trial <®=>256(1) — Instructions—Requests —Necessity.
    If defendant desired a fuller presentation of issues than covered by charge, requests presenting stích issues in proper form should have been submitted.
    [Ed. Note — For other cases, see Trial, Cent. Dig. §§ 628, 633.]
    4. Damages ⅞^>45 — Agreement to Extend Credit — Expenses.
    In action against bank for a breach of agreement to extend credit to plaintiff for purchase and sale of produce and to pay cheeks issued by plaintiff therefor, expenses reasonably incurred in investigating dishonor of checks and adjusting same were recoverable.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 92-98.]
    5. Appeal and Error <®=3l070(2) — Harmless Error — Failure to Answer Special Issue.
    Failure to require jury to answer a special issue submitted which could not have affected the result was not reversible error.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. ,Dig. §§ 4232, 4233.]
    6. Contracts ⅜=>94(1) — Agreement to Extend Credit — Breach.
    Plaintiff’s fraudulent concealment of fact that he did not on a certain date have sufficient produce on hand to pay indebtedness to bank would not alone have authorized bank to breach previous contract to extend plaintiff credit.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 420, 428, 430, 1160.]
    7. Contracts <®=305(1) — Agreement to Extend Credit — Waiver oe Objection.
    Where bank, having agreed to extend plaintiff credit, did not object to his drawing checks instead of bills of exchange; it waived that right, and plaintiff’s departure from the strict terms of the agreement in this regard became immaterial. • ,
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1398-1400, 1467-1475.]
    8. Trial <3=^253(1) — Instructions—Refusal of Erroneous Request.
    The refusal of the request to charge which ignored one phase of the case was not erroneous.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 613, 614.]
    9. Contracts <®=^A-Agreement to Extend Credit — Implied Agreement to Accept Drafts in Payment.
    In action for bank’s breach of agreement to extend plaintiff credit to enable latter to buy and sell produce, an implied agreement to accept drafts drawn on purchasers as a special deposit, to cover plaintiff’s cheeks, was sufficient for recovery.
    [Ed. Note. — For other cases, see Contracts,Cent. Dig. §§ A-6.]
    10. Trial <3=o251(1) — Instructions—Refusal of Request on Immaterial Issue.
    The refusal of a request presenting an immaterial issue was not error. • •
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 587, 588, 594.]
    11. Appeal and Error <S^>10GS(1) — Harmless Error — Instructions—Refusal.
    Where any possible error in refusing a requested charge was cured by jury’s findings, case will not be reversed.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4225; Trial, Cent. Dig. § 475.]
    12. Appeal and Error <3=>1078(1) — Briefs— Objections to Evidenoe.
    Where appellant’s brief failed to show objections urg'ed to admission of testimony, assignments of error relating thereto will not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4256.]
    13. Appeal and Error <3=>1046(5) — Harmless Error — Court’s Statement in Jury’s Presence.
    Where the court’s statement in the presence of the jury could not have influenced the jury on issues súbmitted, there was no reversible error.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4134.]
    14. Damages <⅞=^40(2) — Breach of Agreement to Extend Credit — Remote Damages.
    In action against bank for breach of agreement to extend credit to plaintiff, to enable him to purchase and sell produce, plaintiff’s lost profits upon a car of produce he could have bought if bank had not breached agreement, was too remote and speculative to be recovered.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 74-78.]
    15. Banks and Banking <⅜=»134(1) — Breach of Agreement to Extend Credit — Application of Draft to Other Debts.
    Where plaintiff recovered for bank’s failuro to honor cheeks and to extend credit to enable plaintiff to buy and sell produce, the bank having accepted drafts on plaintiff’s purchasers but applied amount on other indebtedness, the bank should have allowed the difference between amount of drafts and plaintiff’s checks as asked in its counterclaim, as the bank had a right to apply the residue after payment of the checks to plaintiff’s other debts.
    [Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. § 353.]
    Appeal from District Court, Eastland County; Thos. D. Blanton, Judge.
    Suit by W. J. Mangurn and others against the First National Bank of Gorman. Judgment for plaintiffs, and defendant appeals.
    Reformed and affirmed.
    See, also, 176 S. W. 1197.
    J. R. Stubblefield, of Eastland, and J. B. McEntire, of Gorman, for appellant. Scott & Brelsford, of Eastland, S. W. Bishop, of Goman, and iJ. Rupert Jackson, of Baird, for appellees.
   Statement of Case.

HIGGINS, J.

This suit was filed by Man-gum against the First National Bank of Gor-man. The material allegations of the petition were: That on November 1, 1913, he entered into a contract with the bank whereby it agreed to extend to him a line of credit to enable him to buy peanuts and other farm products during the shipping season which would end April 1, 1914. That plaintiff was to buy the products and execute his check or draft on the bank for the purchase price thereof, and, when a carload was obtained, the same was to be sold and proceeds applied to the payment of such checks cfr drafts. When the same was sold, a draft was to be drawn upon the purchaser with bill of lading attached and delivered to the bank for collection. That the parties proceeded to carry out the contract, a,nd in January, 1914, plaintiff bought two carloads of peanuts and delivered same to the railway company for shipment to the purchaser. That the peanuts were bought from a number of farmers, and in payment therefor plaintiff had given his checks upon the bank.- On January 20, 1914, plaintiff drew his draft upon the purchaser of the peanuts, attaching thereto the bills of lading covering the shipment and delivered same to the bank, at the same time delivering to the bank a list of the checks which he had drawn in favor of the parties from whom the peanuts were bought, the list showing the names of the payees of the checks and amounts thereof, and that the proceeds of the draft delivered by the plaintiff to the bank was a fund provided for the payment of the checks when presented. That defendant maliciously dishonored the checks when they were presented for payment and applied the proceeds of the draft drawn upon the purchaser of the two carloads to the payment of other indebtedness of Mangum and the firm of Mangum & Godwin. That by reason of the dishonor of the checks plaintiff had incurred certain expenses in making adjustment with the holders of the checks given by him. Recovery was prayed for actual and exemplary damages, and that the holders of the checks recover the amount of their checks out of the proceeds of the drafts collected by the bank. The payees of the checks given by Mangum intervened, asking judgment for the respective amounts of the checks held by them.

The cause was submitted upon special issues, and the facts found as follows: That the bank, on November 1, 1913, agreed with Mangum to furnish him a line of credit to enable him to purchase peanuts during the season, and that the line of credit had not been withdrawn prior to the purchase by Mangum of the two cars of peanuts indicated above. That plaintiff delivered bills of lading covering the two cars of peanuts attached to drafts covering the purchase price thereof, and plaintiff then instructed the bank to pay the various amounts mentioned on the list then handed to the bank out of the proceeds of the drafts. After the checks held by the interveners had been dishonored, Mangum incurred. an expense of $25 in investigating the dishonor of his checks and attempting to adjust the matter, and incurred an additional expense of $15 paid by him to the interveners to reimburse them for actual expenses incurred by them in attempting to adjust payment of their checks with the bank. That the bank withdrew the line of credit extended to Mangum after January 20, 1914, and would have refused to have paid for peanuts purchased by him after that date, and that after the withdrawal of said line of credit on JanuQry 20, 1914, 'and before April 1, 1914, Mangum could have purchased a car of peanuts, if the line of credit had not been withdrawn upon which he would have made a profit of $30. That in dishonoring the checks given to the interveners the bank acted without malice. That the bank had notice that the two drafts deposited by Mangum were to cover the proceeds of the peanuts for which the outstanding cheeks of interveners were given, which notice the bank had at the time the drafts were deposited and before the same were presented for payment. At the time the agreement was-made on November 1, 1913, for the bank to extend to Mangum a line of credit to enable him to purchase peanuts or other produce, the plaintiff Mangum, in paying for such produce, was to use bills of exchange.

, Upon the facts so found, the court entered judgment against the baifk in favor of the in-terveners for the amount of their respective checks and in favor of Mangum against the bank for the sum of $97.35, the same being the difference between the proceeds of the two drafts and the aggregate amount of in-terveners’ checks, also for the further sum of $70; the same being the amount of his actual damage, as evidenced by the jury’s findings. From this judgment, the bank has prosecuted this appeal.

Appellant presents numerous assignments of error. To discuss same in detail would serve no useful purpose and protract the opinion to an unreasonable length.- We will therefore state in a general way the conclusions which control the questions presented.

Conclusions of Law.

1. The court did not err in overruling a general demurrer to the plaintiff’s amended petition. As to the 24 special exceptions lodged against the petition, it is clear that most of them were properly overruled. As to those improperly overruled, if any such there be, the error in so doing was harmless. There is one special exception predicated upon the theory that the amended petition affirmatively discloses that the items of damage sustained by way of expenses were barred by the two years’ statute of limitation. The amendment was filed more than two years after the contract was breached; and it does not upon its face disclose that recovery of this item was not sought in the original petition. There is therefore no merit in this exception.

2. There are a number of assignments which raise questions which were decided adversely to appellant by the Court of Civil Appeals of the Second District upon the former appeal of this case. 176 S. W. 1196. Unless very clearly erroneous, rulings made upon the first appeal should be deemed the law of the case in all subsequent proceedings. Bomar v. Parker, 68 Tex. 435 ; Frankland v. Cassaday, 62 Tex. 418. See also cases cited in 1 Michie, Dig. 1132, 1133. Therefore all assignments presenting questions decided adversely to appellant upon the former appeal are overruled.

3. Tire court did not err in submitting to the jury the various issues which it did submit. If appellant desired a fuller presentation of the issues, it should have requested that same be so submitted and presented issues in proper form to be given.

4. The expense reasonably incurred by plaintiff in investigating the dishonor of his checks and adjustment of same and the expense reasonably incurred by him in paying the interveners for their actual expenses in attempting to adjust the payment of their checks with the bank were proper items of damages recoverable by plaintiff for the breach of the contract by the bank, to pay said checks.

5. The fifth special issue, the giving of which is complained of in the eighth assignment, was probably irrelevant and immaterial; but the error, if any, in submitting same, was harmless.

6. At request of defendant, the court submitted this issue:

“Did the plaintiff fraudulently conceal from the defendant the fact that he did not have on hand any peanuts and other produce, on or about the 1st day of January, 1914, with which to pay the amount of his indebtedness to the defendant bank.”

The jury failed to answer it, and complaint is made of the failure to require an answer. If an affirmative finding had been made, it would.not have affected the result. The fraudulent concealment by plaintiff that on January 1, 1914, he did not have on hand sufficient peanuts and other produce to pay his indebtedness to the bank, would not alone have authorized that institution. to breach a contract theretofore made to extend the line of credit to plaintiff.

7. The defendant pleaded that, if it ever made a contract with the plaintiff to furnish him a line of credit, it was upon the condition that plaintiff would use bills of exchange in paying for such produce as he might purchase and that plaintiff breached said contract. The jury found that at the time the agreement was made on November 1, 1913, for the bank to extend to Mangum a line of credit, the plaintiff, in paying for such produce as he might purchase, was to use bills of exchange. It is contended that the giving of checks to the interveners instead of bills of exchange constituted such a breach of the contract as would preclude plaintiff from recovering any damages. There might be some merit in this contention if any objection had been made by the bank when it was informed by the plaintiff that he had drawn these checks at the time he delivered to the bank the drafts for collection covering the proceeds of the two cárs of peanuts. By its failure to object at that time it waived any right that it might have had to have insisted that bills of exchange should have been given instead of checks, and the departure by the plaintiff from the strict terms of its contract therefore became immaterial. All assignments predicated upon this theory of the defendant are therefore overruled.

8. There was no error in refusing to give special charge No. 7 requested by defendant. It was sufficient if there was an implied agreement upon the part of the bank to accept the drafts drawn January 20, 1914, to cover the purchase price of the peanuts shipped to the purchaser as a special deposit for the payment of the interveners’ checks. Special charge No. 7 ignored this phase of the case.

9. Special charge No. 8, requested by the defendant, presented an immaterial issue, and its refusal presents no error.

10. The same is true of defendant’s special charge No. 9.

11. The refusal of special charge No. 13 likewise presents no error. The finding of the jury that in dishonoring plaintiff’s cheeks the bank acted without malice cured any possible error wbicb might have been predicated upon the refusal of this charge.

12. There are a number of assignments of error, complaining of the admission of testimony over the objection of the defendant. The appellant’s brief fails to show the objections urged to the admission of the testimony, for which reason we decline to consider these assignments. Lee v. Simmons, 151 S. W. 868; Railway Co. v. Miller, 88 S. W. 499; Railway Co. v. Matlock, 44 Tex. Civ. App. 565, 99 S. W. 1052.

13. The statement made by the court in the presence of the jury complained of in the thirty-first assignment presents no reversible error. It could have had no influence upon the jury upon any of the issues submitted to them.

14. The evidence is sufficient to support the judgment.

15. There is evidence that the bank impliedly assented to and accepted the drafts as a special deposit for the payment of the checks held by the interveners.

16. We think the item of $30 allowed plaintiff for lost profits upon a car of peanuts which he would have bought if the bank had not breached its agreement to make advances to Mangum was remote and speculative under the evidence here presented. It should not have been allowed. Carsey & Co. v. Farmer, 117 Ky. 826, 79 S. W. 245.

17. The court erred in giving plaintiff judgment for the item of $97.35 mentioned above. This item represented the difference between the aggregate amount of interveners’ checks and the amount of the drafts deposited by plaintiff covering the proceeds of the two cars' of peanuts. The defendant in its counterclaim set up an indebtedness in excess of $97.35 due by plaintiff to It. Tbe facts substantiate tbe plea. This indebted-, ness should have been offset against the item of $97.35. After interveners’ checks were paid, the balance became a general deposit, and such may be appropriated to discharge the depositor’s debt to the bank. 30 L. R. A. (N. S.) note on page -517.

The judgment in favor of interveners is affirmed. The judgment in favor of plaintiff is reduced to $40, and as so reformed is affirmed.

Reformed and affirmed.

       4 S. W. 599.

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

      cSnwFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DUNKLIN, J.

text:
    CHICAGO, R. I. & G. RY. CO. v. FAULKNER et al.
    (No. 8554.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    March 24, 1917.
    Rehearing Denied April 28, 1917.)
    1. Appeal and Error <®=>613(1) — Bill of Exceptions — Approval.
    Where a bill of exceptions is not approved by the trial judge, an objection to the consideration of the assignment of error on that ground is valid.
    [Ed. Note. — Eor other eases, see Appeal and Error, Cent. Dig. §§ 2702-2704.]
    2. Evidence @=»501(2) — Conclusions — Admissibility.
    In an action against a carrier for injuries alleged to have resulted from contracting a severe cold while waiting for a train in defendant’s station, testimony of the plaintiff that she caught cold in the depot was admissible and not objectionable as a conclusion where she gave the facts upon which she based such opinion.
    [Ed. Note. — -For. other cases, see Evidence, Cent. Dig. § 2296.]
    3. Trial <§^>121 (3) — Remarks op Counsel.
    Remarks of counsel for the plaintiff in his argument to the jury “that a few thousand dollars won’t compensate this good woman for the injuries she has sustained” was not an abuse of the right of counsel to comment on the weight of the evidence.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 297.]
    4. Appeal and Error <®^o1060(1) — Remarks op Counsel — Harmless Error.
    Argument of plaintiff’s counsel that “the railway company was more to blame than the agent, H., for it was overworking him at that place because he told old man R. and F. [plaintiff’s husband] that he could not work day and night,” predicated upon testimony of the persons mentioned that such response was given by the station agent when requested to start a fire in the waiting room because of the fact that the room was cold, was not necessarily so inflammatory and prejudicial as to require a reversal of the judgment.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4135.]
    5. Carriers @=o286(8) — Carriage op Passengers — Station—Negligence—Statute.
    Failure to comply with Vernon’s Sayles’ Ann. Civ. St. 1914, art. 6591, requiring each railroad company to keep its depots lighted and warmed and open to all passengers who are entitled to go therein for not less than one hour before the arrival and departure of all trains, carrying passengers and providing a penalty for its violation, is negligence per se.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 1150.]
    6. Carriers <&=>320(7) — Carriage of Passengers — Station—Negligence—Statute.
    Sanitary Code (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4553a), rule 52, requiring each depot, railway coach, etc., while in use for the accommodation of the public to be properly ventilated, and, if necessary, heated, etc., had application to the case of passengers waiting for a delayed train, and failure to perform that duty would be negligence as a matter of law.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1149, 1153.]
    7. Carriers <S^321(5) — Carriage of Passengers — Evidence—Sufficiency.
    Where there was no suggestion in the evidence that plaintiff’s physical condition was abnormal to such an extent as to require more heat to make her comfortable than required for ordinary persons, and her companions testified that the station was uncomfortably cold to them, there was no error in the submission of an issue as to whether or not the station was “kept warm to such a degree as would be comfortable for plaintiffs.”
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 1329.]
    8. Carriers ⅞=»318(2) — Carriage of Passengers — Evidence—Sufficiency.
    Evidence held to sustain a jury’s finding that, in consequence of absence of heat in tbe waiting room, the plaintiff contracted a cold which resulted in the injury complained of.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 674-696, 936, 937.]
    Appeal from District Court, Montague County] C. F. Spencer, Judge.
    Action by Mittie Faulkner and another against the Chicago, Rock Island & Gulf Railway Company. Judgment for plaintiffs, ‘ and defendant appeals.
    Affirmed.
    John Speer, of Bowie, and Lassiter & Harrison, of Ft. Worth, for appellant. H. F. Weldon, of Bowie, and Ocie Speer, of Ft. Worth, for appellees.
   DUNKLIN, J.

On December 26, 1913, R. B. Faulkner and his wife, who resided in Wichita county, in the town of Petrolia, were visitors at the home of Mr. Rowe, the father of Mrs. Faulkner, in Montague county, about two miles from the town of Stone-berg, a small station on the Chicago, Rock Island & Gulf Railway, a short distance from the town of Bowie, another station on the same railway. The route of travel by railway from Mr. Rowe’s home to the home of Mr. and Mrs. Faulkner in Petrolia was over the Chicago, Rock Island & Gulf Railway from Stoneberg to the town of Ringgold, from Ringgold to Wichita Falls over the Missouri, Kansas & Texas Railway, and from Wichita Falls to Petrolia over the Wichita Valley Railway. On the date mentioned above a passenger train over the Rock Island Railway was scheduled to leave Stoneberg for Ringgold at 11:47 p. m. Prior to that hour Mr. Faulkner inquired of the station agent at Bowie, over the telephone, whether or not that train would reach Stoneberg that night on schedule time, and the reply of the agent was in the affirmative. Acting upon that assurance, Mr. and Mrs. Faulkner drove with Mr. Rowe in an open wagon to Stone-berg, reaching there shortly prior to the hour the train was due. It happened that on account of an accident the train was delayed and did not reach Stoneberg until about 3 o’clock of the morning of December 27th, at which time it was boarded by Mr. and Mrs. Faulkner on their return trip home. At the town of Ringgold the stations of the Chicago, Rock Island & Gulf Railway Company and the Missouri, Kansas & Texas) Railway Company were about one mile apart, and Mr. and Mrs. Faulkner rode in an omnibus from the Rock Island station to the Missouri, Kansas & Texas Railway station after their arrival at Ringgold, which was only a short time from the time they left Stoneberg, as Ringgold was but a short distance from Stoneberg.

This suit was instituted by Mr. and Mrs. Faulkner against the Rock Island Railway Company to recover damages for injuries suffered by Mrs. Faulkner, which plaintiffs alleged resulted from contracting a severe cold while waiting in the station at Stone-berg for the delayed train. According to allegations in their petition, the night was cold and the waiting room at the station was not properly heated, and that condition was the proximate cause of Mrs. Faulkner’s said illness, and tl\e failure of the railway company to properly warm the waiting room was negligence. It was further alleged that the cold so contracted resulted in a case of chronic bronchitis; that by reason of such illness she sustained great physical suffering and loss of ability to perform her household duties, and also was compelled to incur expenses for medical treatment.

A trial before a jury resulted in a verdict in favor of the plaintiffs, from which the defendant has appealed.

Complaint is made of the admission of the testimony of Mrs. Faulkner to the effect that she caught cold in the depot at Stoneberg, on the ground that it was “clearly a conclusion and a guess upon her part,” especially in view of the fact that she had driven from her father’s home to the station in an open wagon during the same night, a distance of two miles, and had also exposed herself to the cold in driving from one station to another in the town of Ringgold. The bill of exception shown in the record to the introduction of that testimony does not appear to have been approved by the trial judge, and appellees object to a consideration of the assignment for that reason. Of course, that is a valid objection, but, aside from that contention, we are of the opinion that the objection to the testimony was properly overruled, since the witness gave the facts upon which she based that opinion. She said that at that station she began to sneeze, feel chilly, and cold and began to ache, that she first observed that condition some time between 12 and 1 o’clock, and that she grew worse from that time on. G., 0. & S. F. Ry. Go. v. Richards, 83 Tex. 203, 18 S. W. 611; St. D. & S. F. Ry. Go. v. Sizemore, 53 Tex. Civ. App. 491, 116 S. W. 403.

We are of the opinion that the remarks of counsel for plaintiff in his argument to the jury “that a few thousand dollars won’t compensate this good woman for the injuries she has sustained” was not an abuse of the right of counsel to comment upon the weight of the evidence. Besides, the record shows that appellants’ objection to the argument was promptly sustained by the trial judge.

The further argument by plaintiff’s counsel that “the railway company was more to blame than the agent, Hunt, for it was overworking him at that place because he told old man Rowe and Mr. JTaulkner that he could not work day and night,” was predicated upon the testimony of Mr. Rowe and Mr. Faulkner that such a response was given by the station agent, Hunt, at Stoneberg after the agent had retired for the night and when those witnesses requested him to start a fire in the waiting room because of the fact that the room was cold. When the argument was objected to by appellant’s counsel, the objection was sustained by the court, who thereupon instructed the jury not to consider it. Furthermore, the argument did not purport to go further than to draw a conclusion from the testimony referred to, and we cannot agree with appellant’s contention that it was necessarily so inflammatory and prejudicial as to require a reversal of the judgment.

The trial court charged the jury as follows:

“It was the duty of the defendant railway company, its agents or employes, to use a high degree of car© to have the waiting room at the Stoneberg station in a reasonably warm and comfortable condition for the accommodation of the plaintiffs, who went to said station for the purpose of taking passage on the passenger train on which they did leave said Stoneberg”

—and further charged as follows:

“A ‘high degree of care’ is that care which a very careful, cautious, and prudent-person would exercise under the same or similar circumstances, and the failure to use a high degree of care, where such care is required by law, is negligence.”

Under the assignment of error addressed to those instructions the following proposition is submitted:

“The charge was error because, as to the condition of the waiting room with respect to warmth, the defendant was only under a duty to use reasonable care to have it sufficiently warmed, and not under a duty to use a high degree of care to that end.”

In Hutchinson on Carriers, par. 521a, the following is said:

“The degree of care required of railway carriers in respect of its stational arrangements is therefore not so great as in respect of its tracks and running machinery. * ⅜ ⅜ The rule in such cases is that the earner is bound simply to exercise ordinary care in view of the dangers to be apprehended.”

To the same effect is Elliott on Railroads, yol. 4, p. 1590. Appellant also cites several other authorities in support of the proposition quoted, such as Trinity & So. Ry. Co. v. O’Brien, 18 Tex. Civ. App. 690, 46 S. W. SS9; H. E. & W. T. Ry. Co. v. McCarty, 40 Tex. Civ. App. 364, 89 S. W. 805; K. C. So. Ry. Co. v. Cohb, 118 Ark. 569, 178 S. W. 383, by the Supreme Court of Arkansas; and C., R. I. &, P. Ry. Co. v. Owens, 118 Ark. 467, 177 S. W. 8, by the same court.

The rule so announced in Hutchinson on Carriers is, no doubt, the common-law rule which would control in the absence of any statutory provision upon the subject. However, we have statutes in this state defining the duties of railroads with respect to Warming their passenger stations. Article 6591, Vernon’s Sayles’ Texas Civil Statutes, is as follows:

“Every railroad company doing business in this state shall keep its depots or passenger houses in this state lighted and warmed, and open to the ingress and egress of all passengers who are entitled to go therein, for a time not less than one hour before the arrival and after the departure of all trains carrying passengers on such railroad; and every such railroad company, for each failure or refusal to comply with the provisions of this article, shall forfeit and pay to the state of Texas the sum of fifty dollars, which may be sued for and recovered in the name of the state in any court of competent jurisdiction, and shall be liable to the party injured for all damages by reason of such failure.”

. In T. & P. Ry. Co. v. Cornelius, 10 Tex. Civ. App. 125, 30 S. W. 720, in which a' writ of error was denied by our Supreme Court, it was held that the common-law rule announced above would apply for the failure to properly warm the station for a period of time not .covered by that article of the statute. The statute quoted was enacted in the year 1891, and the decision last noted was rendered in March, 1895, and several other decisions are to the same effect, such as S. K. Ry. Co. v. Caylor, 135 S. W. 1087. Article 4553a, Vernon’s Sayles’ Texas Civil Statutes, enacted in 1911, contains 79 rules as the “Sanitary Code for Texas adopted for the promotion and protection of the public • health,” etc. Rule 52 of that article reads as follows:

“Each depot, railway coach, sleeping car, interurban car and street car while in use for the accommodation of the public shall be properly ventilated, and, if necessary, heated, and a sufficient amount of heat shall be furnished in time of need so that fresh air can be supplied without causing it to become unduly or uncomfortably cold; and the janitor, conductor, caretaker or other person in charge shall see to it that the air is replenished with, fresh air from time to time as needed to prevent the same from becoming foul, unsanitary or oppressive.”

And the article concludes as follows:

“Any person who shall violate any of the rules, regulations or provisions of the Sanitary Code of Texas, as herein set forth, , shall be deemed guilty of a misdemeanor and upon conviction shall be fined in any sum not less than ten dolla'rs and not more than one thousand dollars:
“Provided, this act shall not be construed to repeal any of the laws of this state now in force affecting the public health, which are not clearly in conflict herewith, but shall be construed to be cumulative to said laws.”

It is too well settled to need the citation of authorities that a violation of such statutes as those referred to above is negligence per se. Neither in the trial court nor here has appellant presented the specific contention that the common-law rule would apply to the period of time not covered by article 6591, and that a different rule would apply to the period of time so covered; but, as shown by the proposition quoted, the contention is that the common-law rule would apply and govern as to the whole period of time plaintiffs waited at the station for the train in Stoneberg. Aside from rule 52 of the Sanitary Code, the proposition as presented could not be sustained, since the court could have peremptorily instructed the jury that a failure to comply with the provisions of article 65⅛ was negligence per se.

Furthermore, under the facts of this case, we are of the opinion that rule 52 of the Sanitary Code is also applicable here, and, as it enjoined upon appellant the duty to keep the station heated for the accommodation of the public, if heat was necessary, during the entire time plaintiffs waited for the delayed train, the failure to perform that duty. would be negligence as a matter of law, and that the charge of the court complained of was more favorable than appellant had a right to expect.

In . submitting plaintiffs’ case to the jury, the court submitted the issue whether or not the station was “kept warm to such a degree as would be reasonably comfortable for plaintiffs.” The language so quoted is criticized as imposing a higher duty than is required by law, in that the- station “might be reasonably warmed and yet not warm enough to be Comfortable to the plaintiff.” It is a sufficient answer to the assignment presenting that contention to say that there is no suggestion in the evidence that Mrs. Faulkner’s physical condition was abnormal to' such an extent as to require more heat to make her comfortable than would be required for the ordinary person. On the contrary, her companions also testified that the station was uncomfortably cold to them.

We are of the opinion further that the evidence was-sufficient to sustain the finding by the jury that, as a consequence of the absence of heat in the waiting room, Mrs. Faulkner contracted a -cold which resulted in the injuries complained of, and for which the jury allowed damages. Nor can we say that the damages so allowed were so excessive as to require a reversal of the, judgment, as insisted by appellant.

For the reasons indicated, all-assignments of error are overruled, and the judgment is affirmed.
      ⅜⅛⅞13 or other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes