text:
    EL PASO ELECTRIC RY. CO. v. DAVIDSON.
    (Court of Civil Appeals of Texas. El Paso.
    Dec. 18, 1913.
    Rehearing Denied Jan. 15, 1914.)
    1. Evidence (§ 500) — Opinion—Subjects op Expert Testimony.
    Evidence by the motorman, whose car struck deceased’s automobile, that, after he saw deceased was about to turn his automobile across the track, the street car could not have been stopped, by the use of any means within the motorman’s power, in time to have avoided the accident was not admissible; that being the question for the jury’s determination, and it being as well qualified to form an -opinion thereon as an expert witness.
    [Ed. Note — Eor other cases, see Evidence, Cent. Dig. § 2309; Dec. Dig. § 506.]
    2. Street Railroads (§ 118) — Injuries—Instructions— Discovered Peril.
    It was not error to charge, in an instruction on discovered peril, that “after the motorman discovered the peril of deceased, if he failed to use all the means and appliances he had at command,” etc., instead of charging that it was the motorman’s duty to exercise ordinary care in using the means at hand, etc.
    [Ed. Note. — Eor other cases, see Street Railroads, Cent. Dig. §§ 258-269; Dec. Dig. § 118.]
    3. Street Railroads (§ 117’1’) — Injuries—Instructions— Discovered Peril.
    Evidence, in an action for the death of deceased in a collision between his automobile and defendant’s street car, held to authorize submission of the question of discovered peril to the jury.
    [Ed. Note. — Eor other cases, see Street Railroads, Cent. Dig. §§ 239-257; Dec. Dig. § 117.] •
    4. Street Railroads (§ 118) — Instructions.
    An instruction, in an action for decedent’s death in a collision between a street car and his automobile, that if the motorman saw the automobile moving toward the track and when it started to cross the track, and it reasonably appeared that decedent intended to cross in front of the car, and that it would -not cross in time to avoid a collision and was in imminent peril of being struck by the car, and the jury further find that the motorman, after making such discovery, failed to exercise reasonable care, etc., was not erroneous, unless too favorable to defendant.
    [Ed. Note. — Eor other cases, see Street Railroads, Cent. Dig. §§ 258-269; Dec. Dig. § 118.]
    5. Street Railroads (§ 93) — Injuries—Discovered Peril.
    If the motorman discovered decedent’s peril on the track in time to have avoided a collision by the use of the means at hand to stop or slow the car, his failure to do so was negligence.
    [Ed. Note. — Eor other cases, see Street Railroads, Cent. Dig. §§ 195-200; Dec. Dig. § 93.]
    6. Trial (§ 296) — Injuries—Instructions.
    Any error in an instruction, in an action for decedent’s death in a collision with a street ear, in making contributory negligence depend on whether decedent, in the exercise of ordinary care, should have known that he would be struck, and not merely that he would “probably” be struck, was cured by another instruction that if decedent was negligent in not waiting for the car to pass before crossing the track, and his action in going in front of the car was not anticipated by the motorman in time to stop the car with the appliances at hand, plaintiff could not recover.
    [Ed. Note. — Eor other cases, see Trial, Cent. Dig. §§ 705-713, 715, 716, 718; Dec. Dig. § 296.]
    7.Trial (§ 260) — Instructions—Requests.
    A requested charge, which was substantially covered by the court’s main charge, was properly refused.
    [Ed. Note. — Eor other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.]
    Error to District Court, El Paso County; Dan M. Jackson, Judge.
    Action by Minnie M. Davidson against the El Paso Electric Railway Company. Judgment for plaintiff, and defendant brings error.
    Affirmed.
    Davis & Goggin, of El Paso, and Baker, Botts, Parker & Garwood, of Houston, for plaintiff in error. Patterson, Wallace & Gardner, of El Paso, for defendant in error.

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

   HARPER, C. J.

This was an action brought by Minnie M. Davidson against the El Paso Electric Railway Company to recover damages of the defendant for the death of T. F. Davidson, plaintiff’s husband. The plaintiff alleged in her petition that on or about the 30th day of August, 1912, while her husband was attempting to cross the defendant’s street railway tracks on Stanton street in the city of El Paso, Tex., in his automobile, the automobile was struck by one of the defendant’s street cars through the negligence of the defendant’s servants, and her husband • so ’ badly injured by the collision that he died on the 3d day of September, 1912. The plaintiff, in her petition, charged negligence in the following respects: (1) In running the street car at unlawful, excessive, and dangerous rate of speed down Stanton street, without ringing the bell or giving any warning or notice of the approach of the street car. (2) In not keeping a lookout ahead in order to- discover the deceased while he was approaching or attempting to cross the track in front of the street car. (3) In not stopping or attempting to stop the street car or slow the same down before the collision. The defendant, after interposing a general denial by special plea, set up contributory negligence on the part of the deceased, Davidson, alleging: That the death of Davidson was in no way attributable to any negligence of the defendant or its servants. That Davidson was under the influence of intoxicating liquor at the time the accident occurred to such an extent that he was incapacitated to run his automobile, and that he was guilty of negligence in attempting to do so. That the deceased was coming up Stanton street in his automobile on the right-hand side at a rapid rate of speed, while the defendant’s street car was proceeding down Stanton street at the usual and customary rate of speed, but, just as the automobile and street car were about to pass each, other safely, Davidson suddenly turned his automobile to the left, across the car tracts immediately in front of defendant’s approaching car. That this change of direction was so sudden, rapid', and unexpected that a collision' could not be averted by defendant, and the street car and automobile came into collision through no fault of the defendant, but entirely through the fault of the deceased, Davidson. That Davidson could not have helped seeing the approaching street car, and that his so turning his automobile across the tracks immediately in front of the approaching car was negligence on his part and contributed to cause, and, in fact, was the sole cause, of the accident and injury. The trial resulted in a verdict and judgment for the plaintiff (January 20, 1913) in the sum of $5,000, from which judgment it comes to this court by writ of error for review.

Under the first assignment of error, it is charged that the trial court erred in excluding the testimony of witness Alexander offered by the defendant to the effect that, after he saw that Davidson was about to turn his automobile across the track ahead of the street car, it could not have been stopped by the use of any means within the power of the motorman in charge in time to have avoided the accident; the objection to the testimony being that it was the opinion of the witness, and that the witness was not qualified to make the answer. The witness was on the front end of the car operating the car as motorman, and he testified that he had had experience in observing and estimating the speed at which street cars and automobiles run, and felt competent to express a fairly accurate opinion as to what speed the street car upon which he was motorman was running at the time and just before the accident, and also the automobile which came into collision with the car. It will be seen that the fact sought to be proven by the opinion of the witness was dependent upon many things, and the jury were there for determining the very question, and it was a question which in the nature of things the jury were as qualified to form an opinion about as the witness. Therefore was not a proper subject of opinion or expert testimony. San Antonio Traction Co. v. Flory, 45 Tex. Civ. App. 233, 100 S. W. 200.

The second assignment complains of the charge of the court, but the charge as a whole is not subject to the criticisms made.

The third assignment of error complains that the trial court erred in charging, upon the question of discovered peril, “that after the motorman discovered the peril of deceased, if he failed to use all the means and appliances he had at command,” etc., instead of charging that it was the duty of the motorman to exercise ordinary care in applying and using all the means at hand. This exact charge was approved in Texas Central Ry. Co. v. Dumas, 149 S. W. 543 to 547. See, also, Texas & Pacific Ry. Co. v. Breadow, 90 Tex. 26, 36 S. W. 410; San Antonio & Aransas Pass Ry. Co. v. McMillan, 100 Tex. 562, 102 S. W. 103; Ry. Co. v. Summers, 51 Tex. Civ. App. 133, 111 S. W. 211; Ry. Co. v. Sein, 11 Tex. Civ. App. 386, 33 S. W. 558; Ry. Co. v. Hewitt, 67 Tex. 473, 3 S. W. 705, 60 Am. Rep. 32; Ry. Co. v. Eaust, 133 S. W. 449.

The fourth, fifth, seventh, and eighth assignments charge that it was error to submit the question of discovered peril because there was no evidence that after the motorman discovered the deceased he could have stopped the car or slackened the speed so as to have avoided injury. The evidence is conflicting and possibly preponderates in favor of appellant’s contention, but there is positive evidence in the record to show that the peril was discovered and in time to have avoided the accident. The following testimony, copied from appellee’s brief, is relied upon as being sufficient to require the trial court to submit the question to the jury:

Mr. Martin, on behalf of plaintiff, testified as follows: “When the automobile started to turn across the street car track, the street car was just about entering Fourth street. At the time the street car was about entering Fourth street, the automobile was further on south, on the south side of Fourth street, and started to cross. At the time the street car was entering Fourth street, I would judge it was going about 12 or 14 miles an hour.”

Tom Germain, who qualified as an expert, testified that the particular car No. 81, running 10 or 12 miles an hour, entering Fourth street by the use of all the means on said car consistent with the safety of the car and passengers, could have been stopped in half the length of the ear. It was admitted by both parties that the street car No. 81 was 41.6 feet in length, and that Stanton and Fourth streets are 70 feet wide.

Frank Alexander testified as follows: “From the time I saw it I had left Third street and was about middle ways of the block when I seen this automobile, and he was further on down the street. I could not positively say whether he was next to Fifth street or not. I just noticed the lights, that was all. When I saw him I just noticed there was an automobile. I was going in Fourth street and he was still coming on the left-hand side of the track, coming to meet me; whenever he got up — just as I was into Fourth street — why, he just turned across ahead of me.”

The evidence was undisputed that the accident occurred at about the intersection of the south line of Fourth and Stanton streets. Which we think was sufficient to support the charge and the verdict.

The sixth assignment charges that: “The court erred in the sixth paragraph of the general charge, in that the same is confusing and unintelligible. The court therein charged the jury, among other things, that ‘If the motorman in charge of said car saw the' deceased and the automobile moving toward the track and saw him when he started to cross the track, if he did, and you further find that it reasonably appeared to said motorman that deceased, or person in charge of said automobile, intended to cross the defendant’s track in front of said moving car, and it would not cross the track in time to avoid a collision, and was in imminent peril of being struck by said moving car, if such was the fact and you do so find; and you further find from a preponderance of the evidence that the motorman, after making such discovery,’ etc., ‘failed to exercise,’ etc., the words ‘after making such discovery’ are unintelligible, since the thing (the discovery) referred to as an antecedent cannot be identified — whether the discovery was the deceased and the automobile moving near the track, or whether the discovery was the deceased when he started to cross the track, or whether the discovery was the reasonable appearance to the motorman that the deceased intended to cross the track in front of its moving ear, or whether the discovery was that the deceased would not cross the track in time to avoid a collision, or whether it was that the deceased was in imminent peril of being struck. But, if the court meant by the words ‘after making such discovery’ the discovery of the deceased and his automobile moving toward the track, it was certainly erroneous to say that the motorman was bound to ‘use all the means and appliances at hand consistent with the safety’ etc.; for motormen are not required, when they see anybody moving toward them or near their track, at a distance, to stop their cars; and the court erred in giving said instruction, and misled and confounded the jury to the prejudice of this defendant.” The proposition being that the giving of a charge by the court which is confusing and misleading upon a material issue is reversible error.

The charge, as may be seen, is not so clear as it might have been, but there was no special charge offered, no exception taken to same at the time, and, if carefully considered, it cannot be said that it did not substantially charge the proposition of law before the court, and accurately apply the facts, unless it is more favorable to defendant than it should be, in that it requires the jury to believe that the motorman in charge of the car discovered the automobile near the track, that the deceased started across the track, and it reasonably appeared to the motorman that deceased intended to cross the track, etc., when the law only required the jury to believe that the motorman in charge of the car discovered deceased’s peril in time to have avoided a collision by the use of the means at hand to stop or slow up the car.

The ninth assignment of error reads:

“The court erred in the eighth paragraph of the main charge to the jury, because in said charge it makes the contributory negligence of the deceased dependent upon whether or not the deceased knew, or by the use of ordinary care should have known, that he would be struck by the car, and not if he knew that he would probably be struck, or might be struck, or could be struck, but that he would be struck by the car, and said charge was erroneous and prejudicial to the defendant, because the deceased’s contributory negligence was made to depend upon his knowing or upon his duty to know that he would be struck by the car.
“Proposition: As to whether the deceased was guilty of contributory negligence was not dependent upon the question of whether by the use of ordinary care he knew or should have known that he would probably be struck by the car, nor that he could be struck by the car, but the question was, Would a man of ordinary prudence, under the surrounding circumstances, have done what Davidson did, turning in front of the car at the time and under those circumstances? And the charge given was well calculated to mislead the jury and induce the jury to believe that, in order to find Davidson guilty of contributory negligence, they must find that Davidson knew or ought to have known that he would be struck by the car, which is an erroneous statement of the law.”

If there was error in this charge, which is not conceded, it was cured by the following special charge given: “If you believe from the evidence that T. P. Davidson, deceased, was approaching north along the east side of Stanton street, and was about to turn west at the intersection of Fourth street, and that, in turning westerly into Fourth street, he was negligent in not waiting for defendant’s street car to pass, or in not proceeding along said Stanton street toward the northerly or right side of Fourth street and passing around defendant’s car along the right side of Fourth street, and that said T. F. Davidson was negligent therein, and that his act in passing in front of defendant’s ear and toward the left side of Fourth street was unseen and unanticipated by defendant’s motorman in time for him to have stopped said car with the appliances in use upon said car, or to have therewith slowed down said car, and thereby avoided contact with said automobile, you will find for defendant.”

The tenth and eleventh assignments read:

“The court erred in the eighth paragraph of the main charge in telling the jury that, if they found that the deceased was guilty of contributory negligence, they would find for the defendant, ‘unless you find for the plaintiff under the last part of paragraph 6 of this charge.’ The last part of paragraph 6 is as follows: ‘Your verdict will be for the plaintiff, even though you may believe that the deceased was guilty of contributory negligence,’ because said instruction was, in effect, a peremptory instruction to. find for the plaintiff unless they believed the deceased was guilty of contributory negligence, and at least was calculated to confuse the jury and mislead them as to under what circumstances they would find for the plaintiff, and under what circumstances for the defendant.
“The court erred in refusing to give defendant’s special charge No. 2, in which the jury were instructed as follows: ‘If you believe from the evidence that the injuries of T. E. Davidson resulted from the negligence of the defendant’s motorman, you will find for the defendant,’ because said charge properly submitted the law applicable to the facts and the charge of the court being unintelligible and confusing, and authorizing the jury to find for the plaintiff whether the deceased was guilty of contributory negligence or not.”

As the tenth and eleventh assignments of error raise substantially the same question, we will consider them together.

.[7] The charge is not subject to the criticism made, and it was not error to refuse the special charge because the proposition is substantially covered in the main charge of the court.

The twelfth assignment of error reads:

“The court erred in refusing to give the defendant's first special charge instructing the jury to find a verdict for the defendant for the reason that the uncontradicted testimony showed that the deceased was guilty of contributory negligence, and showed a wanton disregard of his own safety, and his own negligence was the direct and proximate cause of the accident and injury, and because there was no testimony to show that those in charge of the car failed to use all the means within their power, consistent with the safety of the car and passengers therein, to stop the car as soon as they discovered the peril of the deceased or realized his danger,” and has been disposed of by what has been said in reply to the appellant’s ninth assignment, and the further observation that the evidence was sufficient to require the court to charge upon the two theories of negligence pleaded — negligence in failing to keep a look out and. stop the car, and that of discovered peril.

The thirteenth assignment reads: “The court erred in refusing to give the defendant’s fourth special charge as follows: ‘If you believe from the evidence that T. F. Davidson, deceased, was operating his automobile along the east side of Stanton street, and the defendant’s street car was running south along the middle of said street, and that, about the time the said street ear was entering the intersection of Fourth street, said Davidson turned his automobile across the track in front of the defendant’s car so suddenly and, unexpectedly that the defendant’s motorman, in the exercise of due care, was not given sufficient time in which to stop his car or slow down the same so as to avoid contact with the automobile, you will find for the defendant.’ Because the court had nowhere in its main charge or by any special charge given sufficient instructions to the jury as to the rules of law in the premises, and the defendant had the right to have the facts grouped as was done in this charge, and specifically submitted to the jury for its determination, as was done in said requested special instruction, and said charge being a correct presentation of the law and applicable to the facts, the court should have given said charge, and erred in not doing so to the prejudice of this defendant.”

The proposition was sufficiently covered by the eighth paragraph of the court’s main charge, and special charges given. This disposes of the fourteenth, fifteenth and sixteenth assignments of error, which are to the same effect. And the fifteenth and sixteenth practically exclude from the jury the question of discovered peril.

The assignments are therefore overruled, and the judgment affirmed.


source: Caselaw Access Project

author: TALBOT, J.

license: Public Domain

text:
    GARNER v. JAMISON et al.
    (Court of Civil Appeals of Texas. Dallas.
    Oct. 18, 1913.
    On Motion for Rehearing, Jan. 17, 1914.)
    1. Pasties (§ 96) — Misjoinder or Pasties Plaintiff — Waives.
    Under Rev. Civ. St. 1911, art. 1902, authorizing a defendant to plead as many several matters, whether of law or fact, as he shall think necessary and which may be pertinent to the cause, provided he files them all at the same time “and in due order of pleading,” where defendants filed an answer to the merits without filing any exceptions setting up a misjoinder of parties plaintiff, their objection to such mis-joinder was waived, and their exception thereafter filed in an amended answer should not have been sustained, as the proper practice is to raise the question of misjoinder of parties and causes of action when it appears from the face of the pleadings by demurrer, and the objection must be taken and determined in limine.
    [Ed. Note. — For other cases, see Parties, Cent, Dig. §§ 167-177; Dec. Dig. § 96.]
    On Motion for Rehearing.
    2. Appeal and Eeros (§ 407) — Citation in Ebeor — Service.
    Under the statute authorizing service on the president, secretary, or treasurer of a domestic corporation, or upon the local agent representing it in the county in which suit is brought, a citation in error was properly served on the general manager of its business, who gave the orders with respect to its business, and who lived in the county in which suit was brought; he being its local agent representing it in such county.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2120, 2128-2132; Dec. Dig. § 407.]

      3. Appeal and Error (§ 390) — Appeal Bond —Amendment.
    Under the express provisions of the statute, an appellate court may allow an appeal bond defective in form or substance to be amended by filing a new bond; and hence the action of the court in allowing the filing of a new bond was not unauthorized on the ground that the original bond was a nullity.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2077-2084, 2088; Dec. Dig. § 390.]
    4. Parties (§ 92) — Misjoinder oe Parties Plaintiff — Waiver.
    Under rule 24 for district courts (142 S. W. xix), providing that all dilatory pleas and all motions and exceptions relating to a suit pending which do not go to the merits of the case shall be tried the first term at which the attention of the court shall be called thereto, unless passed by agreement of the parties with the consent of the court, assuming that the misjoinder of parties plaintiff was raised by a general demurrer where no special exception was filed, the objection was waived where the court’s attention was not called thereto at any time, and an exception filed after several intervening terms of court should not have been sustained, especially where it was not filed until after plaintiff’s cause of action was barred by limitations.
    [Ed. Note. — For other eases, see Parties, Cent. Dig. §§ 150-152; Dec. Dig. § 92.]
    Error from District Court, Dallas County; E. B. Muse, Judge.
    Action by G. M. Garner and J. D. Jamison against Campbell Russell and others. To review the ruling of the court in sustaining exceptions to the petition and certain other interlocutory rulings, plaintiff Garner brings error.
    Reversed and remanded.
    E. G. Senter, of Dallas, for plaintiff in error. W. L. Crawford and J. C. Muse, both of Dallas, for defendants in error.

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

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

   TALBOT, J.

This action was filed on the 19th day of April, 1906, by J. D. Jamison and G. M. Garner, plaintiffs, against Campbell Russell, C. S. Barrett, W. S. Miller, O. P. Pyle, and A. H. Belo & Co., a corporation, defendants, each plaintiff praying for $10,000 actual damages and $10,000 exemplary damages against each of the defendants for an alleged libel. The defendant A. H. Belo & Co., on the 29th day of November, 1907, and the other defendants, on the 24th day of November, 1908, filed amended answers, in which, among other things, they and each of them excepted specially to the petition of the plaintiffs upon the ground that there was a misjoinder of parties plaintiff. The plaintiffs excepted to and resisted the pleas of misjoinder of parties plaintiff upon the ground that all of the defendants had waived a misjoinder, if any, by pleading to the merits of the cause and permitting several terms of the court to pass after so doing, without excepting to the misjoinder and by waiting to present the exceptions or pleas of mis-joinder until such a period of time had elapsed as to cause the action to be barred by limitation, if it should be dismissed. The court sustained the exceptions setting up a misjoinder, and the plaintiffs then, because of the action of the court, requested a severance of the cause, and that each of the plaintiffs should be permitted to docket his cause as a separate action, which application was denied by the court. The attorney for the plaintiffs then announced that, acting under the rule of the court, and because the court would not permit the cause to go to trial and would not permit a severance, he would take a nonsuit on behalf of plaintiff, Garner, and did so, and then and there gave notice of appeal from the action and ruling of the court to the Court of Civil Appeals on behalf of said plaintiff. Afterwards a motion was made on behalf of the plaintiff, Gamer, to reinstate his cause of action as a separate suit upon the docket of the court, which prayer was denied by the court. Plaintiff, Garner, gave notice of appeal to the Court of Civil Appeals from the action of the trial court, and brings the case to this court by writ of error.

The several rulings of the court mentioned are assigned as error, but it is only necessary for the purposes of this appeal for us to determine whether or not the trial court erred in sustaining the special exceptions of the appellees to the petition of piaintiffs asserting a misjoinder of parties plaintiff. The decision of the question does not turn upon whether or not there was in fact such misjoinder, but whether, if there was such misjoinder, it had been waived. The proper practice in this state is to raise the question of misjoinder of parties and causes of action when the misjoinder appears from the face of the pleadings, by demurrer, and the objection must be taken and determined in limine. Our statute gives the defendant the right or privilege to plead, in his answer, “as many several matters, whether of law or fact, as he shall think necessary for his defense, and which may be pertinent to the cause,” provided he files them all at the same time and in due order of pleading. Article 1902, Revised Stats. 1911. The proviso in this statute was not complied with in this case. The exceptions of the defendants to the petition of the plaintiffs were filed long after their general denial, and was not therefore in the due order of pleading. As has been stated, this suit was filed on the 19th day of April, 1906, and the answers of the defendants A. H. Belo & Co., Campbell Russell, and O. P. Pyle, and O. S. Barrett and W. S. Miller, consisting of a general demurrer and general denial, were filed, respectively, on the 28th day of April, 1906, June 6, 1906, and September 26, 1906. Thereafter, on the 29th day of November, 1907, A. H. Belo & Co., and on the 24th day of November, 1908, the other defendants, filed amended answers, in which for the first time they excepted to the petition of plaintiffs upon the ground of misjoinder of plaintiffs. Haying answered to the merits of plaintiffs’ case before filing their exceptions setting up a misjoinder of parties plaintiff, defendants waived the misjoinder, if any, and the court erred in sustaining said exceptions. Hays v. Perkins, 22 Tex. Civ. App. 198, 54 S. W. 1071; Moore v. Waco Building Ass’n, 19 Tex. Civ. App. 68, 45 S. W. 974; Wallace v. First Nat. Bank, 95 Tex. 103, 65 S. W. 180; Connor v. Hawkins, 64 Tex. 544; Howard v. Britton, 71 Tex. 286, 9 S. W. 73; Railway Co. v. Railway Co., 83 Tex. 509, 18 S. W. 956.

The judgment of the court below is reversed, and cause remanded.

On Motion for Rehearing.

It is insisted that the sheriff’s return does not show legal service of the citation in error upon the defendant in error, A. H. Belo & Co., and a rehearing should be granted and this cause stricken from the docket of this court for want of . jurisdiction. The sheriff’s return indorsed upon the citation in error (omitting the signature of the sheriff) is as follows: “Came to hand Eeb. 1st, 1910, and executed Eeb. 1st., 1910, at 3 p. m., by delivering to A. H. Belo and Company, by Del. to G. B. Dealey, general manager, a true copy of this writ in Dallas, Dallas Co., Texas.” The defendant in error, A. H. Belo & Co., is a corporation created by the laws of Texas, and if it be conceded that the sheriff’s return fails of itself to show service of the citation in error upon any officer or representative of the company upon whom service is required by statute to be made, still the record in this court discloses that said citation was served upon such an officer or representative. By bill of exception reserved to the action of the district court, in which the cause was tried, in refusing, upon motion of plaintiff in error filed in that court, to have the officer’s return upon the citation amended, it is made to appear that G. B. Dealey, upon whom the service was had, testified, among other things, in effect, that he was, at the time the citation in question was delivered to him, the general manager of the business of the defendant in error; that he gave the orders with respect to the business of the company in Dallas county, Tex., at that time, and that he lived in the city of Dallas, said county and state where the suit was pending, when the citation was served upon him. The statute provides that in suits against a domestic corporation citation may be served on the president, secretary, or treasurer of such company, or upon the local agent representing such company in the county in which suit is brought. The return in this case shows that the citation in error was delivered to “G. B. Dealey, general manager” of defendant in error, and his testimony that he was general manager of its business, and gave the orders with respect to its business, and that he lived in Dallas county, Tex., at the time the citation was served upon him, shows that he was at that time the local agent of the defendant in error representing it in said county. This being true, the service of the citation was legal and binding upon defendant in error, and this court had jurisdiction to hear and determine the appeal in this case.

We do not concur in the view that the original writ of error bond filed in this case was a nullity, and that this court was not authorized to allow a new bond to be filed. It is expressly provided by our statute that when it shall be determined by the court to which an appeal is taken that the appeal bond is defective in form or substance, such appellate court may allow the appellant to amend such bond by filing a new bond on such terms as the court may prescribe.

The other grounds of the motion for a rehearing and the argument in support of them have been carefully read and considered, but we think they present no good reason why we should depart from the views expressed in our original opinion. As is, in effect, said in that opinion, the question presented for our decision was not whether there was in fact a misjoinder of parties plaintiff in this suit, but whether, if there was a misjoinder, it had been waived. In Brooks v. Galveston City Ry. Go., 74 S. W. 330, it is held that a misjoinder, either of actions or of parties, must be taken advantage of by a plea in abatement, or where the misjoinder appears from the face of the petition, by a special exception in the nature of such plea, and that it is elementary that due order of pledding requires that pleas in abatement or exceptions of such nature must, to be considered, be filed prior to an answer to the merits whether such answer raises issues of law or fact. Here, as in Brooks’ Case, the plea of misjoinder was filed subsequent to the general demurrer and plea of not guilty contained in the original answer. Besides, as pointed out in Howard v. Britton, 71 Tex. 286, 9 S. W. 73, cited in the original opinion, rule 24 of the district court (142 S. W. xix) provides that all dilatory pleas and all motions and exceptions relating to a suit pending, which do not go to the merits of a case, shall be tried the first term at which the attention of the court shall' be called to the same, unless passed by agreement of the parties with the consent of the court; and, if it can be said that the alleged misjoinder in this case could be raised by a general demurrer, yet it does not appear that the appellee A. H. Belo & Co. relied upon it for that purpose and called the court’s attention to it at any time. On the contrary, it is manifest that it was not so relied upon, for long after such demurrer was filed the special exception setting up a misjoinder of parties plaintiff herein was filed and alone presented and acted upon by the trial court.

Having therefore failed to call the attention of the court to the general demurrer, claiming a misjoinder of parties plaintiff, at the proper time, it must be held that it, and consequently the misjoinder, was waived. An additional reason why the special exception claiming a misjoinder of plaintiffs in this case should not have prevailed, is that such exception was not filed until after appellant’s cause of action, if any he had, was barred by the statute of limitation.


author: FLY, C. J.

text:
    GALVESTON, H. & S. A. RY. CO. v. SPARKS.
    (Court of Civil Appeals of Texas. San Antonio.
    Dec. 17, 1913.
    Rehearing Denied Jan. 14, 1914.)
    1.Carriers (§§ 148, 159) — Damage to Freight — 'What Law Governs.
    The federal, and not the state, statutes control in fixing a railroad company’s liability on an interstate shipment, and hence a provision in the contract of shipment requiring notice of damage within a certain time as a condition to suing therefor will be sustained, if reasonable, not being prohibited by the federal statutes.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 650, 668-671. 686, 699-703y2, 711-714, 718, 718½; Dec. Óig. §§ 148, 159.]
    2.Carriers (§ 62) — Contract eor Shipment —Fraud.
    If a contract for the shipment of freight was procured by the carrier by fraud, it was not binding upon the shipper.
    [Ed. Note. — For other cases, see Carriers, Cent-. Dig. §§ 195-206½; Dec. Dig. § 62.]
    3.Carriers (§ 62) — Freight—Validity oe Contract.
    After goats shipped by freight had been loaded, and the train was about to start, the railroad officials presented to the shipper’s agent written contracts, and requested him to sign them, and such agent, without knowing their contents, or having time to read the contracts, signed them, believing them to be merely for use in transporting him with the shipment. The contracts were long, and printed in small type, with provisions written across the printing in several places. Held, that the shipper was not bound by the printed contract, if it was different from the verbal contract of shipment.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 195-206½; Dec. Dig. § 62.]
    4.Trial (§ 194) — Instructions—Weight op Evidence.
    An instruction, in an action for damages to a shipment of goats, fixing plaintiff’s measure of damages at the difference in the market value at the point of destination, if properly transported, and their market value in the condition in which they actually arrived was on the weight of the evidence where the evidence made it a jury question whether the written contract fixing the maximum value of the goats was valid; the effect of the charge being to indicate that the written contract should be ignored.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 413, 436, 439-441, 446-454, 456-466; Dec. Dig. § 194.]
    5.Carriers (§ 218) — Freight—Contract op Shipment — Consideration.
    Recitals, in a contract for the shipment of live stock, showing that a lower rate had been given upon fixing a certain value upon the property showed a sufficient consideration for the contract of shipment at the rate fixed.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 674r-696, 927, 928, 933-949; Dec. Dig. § 218.]
    6. Carriers (§ 230) — Freight — Action poe Damage — ^Conflicting Instructions.
    A special charge making the carrier responsible for overloading cars with live stock, if it supervised the loading, was conflicting with another charge exempting the carrier from liability for overloading the cars, if the contract so provided.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 961, 962; Dec. Dig. § 230.]
    7. Carriers (§ 62) — Freight — Validity op Contract.
    To invalidate the written contract of shipment, on the ground that the shipper’s agent was compelled to sign it without knowledge of its terms, and believing that it was a mere ‘•pass,” the evidence must show that the agent was compelled to sign it without knowledge of its contents, and without being permitted time in which to read it, or having his attention called thereto.
    [Ed. Note. — For other cases, -see Carriers, Cent. Dig. §§ 195-206½; Dec. Dig. § 62.]
    8. Evidence (§ 445) — Merger op Oral Into Written Contract.
    If a verbal contract of shipment was partly executed by loading the stock when the written contract was presented to the shipper, the verbal contract would' control, unless the shipper afterwards assented to the terms of the written contract; the rule that prior negotiations are merged into a subsequently executed written contract not applying.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2052-2065; Dec. Dig. § 445.]
    9. Carriers (§ 229) — Freight — Action por Damages — Measure op Damages.
    One suing for injury to a shipment of live stock en route was not required to allege or prove a measure of damages where the written contract relied on, if valid, fixed a measure of damages, since, if it was not valid, the law would fix the measure of damages.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 930, 963, 964; Dec. Dig. § 229.]
    10. Trial (§ 191) — Instructions — Weight op Evidence.
    A requested charge was properly refused, in an action against a railroad company for injury to live stock en route, which assumed that the written contract of shipment should be considered in determining the measure of liability, though there was evidence tending to show its invalidity.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 420-431, 435; Dec. Dig. § 191.]
    Appeal from Uvalde County Court; J. F. Robinson, Judge.
    Action by J. M. Sparks against the Galveston, Harrisburg & San Antonio Railway Company. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    Baker, Botts, Parker & Garwood, of Houston, G. B. Fenley, of Uvalde, W. B. Tea-garden, of San Antonio, and Claude Lawrence, of Uvalde, for appellant. L. Old and L. E. Lanier, both of Uvalde, for appellee.

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

   FLY, C. J.

Appellee sued for and recovered damages in the sum of $428.32, alleged to have accrued by the negligence of appellant in the transportation of certain goats from Uvalde, Tex., to Don Lnis, Ariz. There was a trial by jury resulting in a verdict and judgment for appellee in the sum mentioned.

The first and second assignments of error complain of exceptions being sustained to that part of the answer setting up a clause in the contract which provided that no suit should be sustained unless notice in writing of the loss or damage should be given within 90 days from the time that it occurred; it being claimed that it was an interstate shipment, and the validity of the contract should be tested by the federal laws, and not those of the state. The shipment was undoubtedly an interstate one, and therefore subject to federal, and not state, regulation. Being interstate commerce, the statutes of the United States must be looked to for guidance in fixing the liability of the carrier. The laws of Texas would not apply. It follows that, there being no provision in the federal statutes against inserting in the contract of shipment a stipulation for notice of loss or damage to be given within a certain time, no such provision can be applied to an interstate shipment. Missouri, Kansas & Texas Railway Co. v. Harriman, 227 U. S. 657, 33 Sup. Ct. 397, 57 L. Ed. 690; Railway v. Langbehn, 158 s. W. 244. The Supreme Court of the United States, in the case cited, said: “The liability imposed by the statute is the liability imposed by the common law upon a common carrier, and may be limited or qualified by special contract with the shipper, provided the limitation or qualification be just and reasonable, and does not exempt from loss or responsibility due to negligence.”

In the case of Railway v. Carl, 227 U. S. 639, 33 Sup. Ct. 391, 57 D. Ed. 683, the Supreme Court not only held that the Carmack amendment brought all contracts for interstate shipments under its authority, and withdrew them from the influence of state regulation, but also held that an agreement is valid and binding which fixes the value of the goods shipped. The court quoted with approval the following excerpt from Hart v. Railway, 112 U. S. 331, 5 Sup. Ct. 151, 28 L. Ed. 717: “The distinct ground of our decision in the case at bar is that, where a contract of the kind, signed by the shipper, is fairly made, agreeing on the valuation of the property carried, with the rate of freight based on the condition that the carrier assumes liability only to the extent of the agreed valuation, even in case of loss or damage by the negligence of the carrier, the contract will be'upheld as a proper and lawful mode of securing a due proportion between the amount for which the carrier may be responsible and the freight he receives, and of protecting himself against extravagant and fanciful valuations.” The court also held that the valuation is based on the rate given the shipper, and that “he must take notice of the rate applicable, and actual want of knowledge is no excuse.”

While the statutes and decisions of the United States must be followed in this ease, if brought into action by a contract of shipment, yet, if appellee pleads and proves that the contract was procured by fraud or duress, it was not binding, and there was no contract upon which to base a demand for -notice of loss in a certain time, or to confine the losses within the limits of the valuation of the animals. It was pleaded by ap-pellee that appellant, after the goats had been loaded, and the train about to start on its journey, presented written contracts to the employe of appellee, and told him to sign the same; that he did not know the contents of the contracts, and did not have the time to read the same, and signed them, believing that the contracts were merely to be used to pass him with the goats. He also pleaded that the contract was without consideration. The employs of appellee, T. B. Hutcherson, testified that he had never shipped any stock of any kind before, and knew nothing about shipping contracts; that, after the goats were loaded, and the train was ready to start, and had gone 200 or 300 yards from the depot near a water tank, the agent of the railroad company told Hutcherson to go with him to the depot and “sign up”; that he went and signed the contract, not knowing its contents, and ran to catch the train... I-Ie said, “They seemed to be in a hurry, and waiting for me, and ready to go.” The contract was shown to be long, and printed in very small type, and the printing written across in a number of places. The printed contract was different from the verbal one under which the goats were delivered to appellant.. Contracts made under like circumstances have been held null and void. Railway v. Grant, 6 Tex. Civ. App. 674, 26 S. W. 286; So. Pac. Railroad v. Meadors, 104 Tex. 469, 140 S. W. 427. In the last case the Supreme Court held: “If the Southern Pacific Company received the horses for shipment, furnishing the cars for that purpose, without demanding any written contract of the parties, and, after the horses were upon the cars, and the train about to leave, the contracts were presented to the men in charge, or to the shipper, for signature, and if the shipper or the. person who signed them did not know the contents of the contracts, and had no time for reading them, and signed them under these conditions * * * to secure the passes to attend the horses, such contracts would not be the contracts of the shipper, and the limitation which restricted the liability of the railroad company to damages accruing on its own line was not binding upon the shipper.” The facts, as testified by appellee, bring it within the scope of the decisions cited.

The charge complained of in the sixth assignment of error was upon the weight of the evidence, as indicating to the jury that the contract was null and void. The validity or not of the written contract was the main issue, and yet it was not submitted in the charge of the court, but in a special charge requested by appellee, and the court went further in the face of the written contract fixing the maximum value of the goats, and instructed the jury to find for the difference in the market value of the goats at point of destination, had they been properly transported, and fheir market value in the condition in which they arrived at point of destination. To use that measure of damages alone was to ignore the written contract, and to indicate to the jury that it should be set aside. It cannot be said that the charge did not probably influence the jury. The jury had the right to pass upon the testimony of Hutcherson as to the facts connected with the signing of the contract, especially as it was shown that he did not show any desire to read the contract. The agent of appellant swore that he would have given Hutcherson time to read the contract if he had expressed any desire to read it. The court should have conditioned his measure of damages upon the finding by the jury that the written contract of shipment was null and void. If the contract was valid, a different measure of damages was applicable, namely, the one stipulated in the contract.

The court should also have instructed the jury that, if they found that the contract was valid, and found that the limitation named therein was reasonable, then they could not find in favor of appellee for any sum, unless the suit was instituted within the stipulated 90 days.

Appellee alleged that he delivered the goats to appellant, and that the latter received them, and placed them in its pens, and transported them. That created contractual relations between the parties, and the facts under which the written contract was executed were fully set forth in the supplemental petition, and formed a sufficient basis for proof of the facts. The seventh and ninth assignments of error are therefore overruled.

There was a sufficient consideration for the execution of the written or printed contract, and, if valid in other respects, it could not be attacked on the ground of lack of consideration. Railway v. Carl, hereinbefore cited. In that case it is held that the taking of the lower of two rates was sufficient consideration for lessening the amount for which the carrier should be held liable in case of loss or damages. As said in that ease: “The valuation declared or agreed upon as evidenced by the contract of shipment upon which the published tariff rate is applied must be conclusive in an action to recover for loss or damage.” We therefore hold that the trial court erred in not sustaining exceptions to that part of the supplemental petition which attempted to assail the validity of the shipping contract on the ground of want of consideration. Appellee cites several cases to the effect that, unless there is proof of a lower rate, there would be no consideration for the shipping contract; but it has been decided in Adams Express Co. v. Croninger, 226 U. S. 491, 33 Sup. Ct. 148, 57 L. Ed. 314, Railway v. Latta, 226 U. S. 519, 33 Sup.. Ct. 155, 57 L. Ed. 328, and Railway v. Miller, 226 U. S. 513, 33 Sup. Ct. 155, 57 L. Ed. 323, that the recitals in the contract were sufficient to show that a lower rate had been obtained by a certain value upon the property, and that it formed a sufficient consideration for the contract.

In the first special charge requested by appellee and given by the court, appellant was charged with liability for overloading the cars, if it supervised the loading; then, in the second special charge, the appellant is exempted from liability for overloading the cars, if the contract so provided. There is an apparent conflict between the two charges which should be guarded against on another trial.

The question of whether the contract was void under the facts was one to be submitted to the jury, and, in order to invalidate it, the evidence should clearly show that ap-pellee’s employs was compelled to sign without knowledge of its contents, and without being allowed time in which to inform himself of such contents. There must be evidence tending to show that the attention of the employs was not called to the terms and conditions of the contract, or that he was not given an opportunity to inform himself.

If a verbal contract was made for the shipment of the goats, and it was partly executed at the time the written contract was presented, as by loading the goats on the cars, making up a train, and preparing for departure, the verbal contract would prevail, unless the shipper afterward assented to the terms of the written contract. The rule that prior negotiations are merged in a subsequent written contract would not apply to such a ease. Bostwick v. Railroad, 45 N. Y. 712. In the Meadors Case the horses were brought to the depot under an agreement to ship them over certain lines. Gars were furnished, and the horses loaded upon them, after which the contracts were presented and signed. The court held that the facts were sufficient to warrant the trial judge in submitting “to the jury the question of whether there was an oral or implied contract on the part of the Southern Pacific Railroad Company to carry the horses.”

If there was no valid contract, the law fixed the measure of damages in this case, and if the written contract is valid and binding it fixes the measure of damages. Ap-pellee was not compelled to allege or prove a measure of damages. The thirteenth assignment of error is overruled.

The fourth special charge was properly denied. It assumed that the written contract alone was to he considered in the case, ignoring the facts tending to show its invalidity. The fourteenth assignment of error is overruled.

The fifteenth to the twenty-first inclusive are not meritorious, and are overruled.

Eor the errors indicated herein, the judgment is reversed, and the cause remanded.


author: JENKINS, J.

text:
    NORTHERN IRR. CO. v. DODD.
    (Court of Civil Appeals of Texas. Austin.
    Nov. 12, 1913.
    On Motion for Rehearing, Jan. 14, 1914.)
    1. Waters and Water Courses (§ 263) — Irrigation — Contracts — Actions — Petition.
    To recover for a breach of a contract to furnish water for irrigation, plaintiff need not allege that defendant was negligent in failing to furnish water; absence of negligence not excusing a breach of contract.
    [Ed. Note. — For other cases, see Waters and-Water Courses, Cent. Dig. g 324; Dec. Dig. §
    2. Waters and - Water Courses (§ 263) — ' Irrigation — Actions—Petition—Terms of Contract.
    One suing for breach of contract to furnish water for irrigation need not allege in the petition the part of the contract providing that $4 an acre should be the maximum damage allowed for failure to furnish the water.
    [Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. § 324; Dec. Dig. § 263.]
    3. Appeal and Error (§ 1039) — Harmless Error — Pleadings.
    Failure to allege in the petition the part of the contract sued on, which limited plaintiff’s right of recovery to a certain amount, was harmless to the defendant, where the entire contract was read in evidence, and the court limited plaintiff’s recovery to the amount limited in the contract.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4075-4088; Dec. Dig. § 1039.]
    4. Exceptions, Bill op (§ 8) — Exclusion op Evidence.
    A statement in the bill of exceptions, to the exclusion of evidence, that “defendant offered to prove” the facts stated is equivalent to a statement that witnesses would have testified according to the offer, so that the bill is not objectionable on the ground that it does not state what the witnesses would have testified.
    [Ed. Note. — For other cases, see Exceptions, Bill of, Cent. Dig. § 10; Dec. Dig. § 8.]
    5. Waters and Water Courses (§ 261) — Irrigation Contracts — Breach.
    Where defendant irrigation company contracted to furnish plaintiff water sufficient to irrigate land leased by plaintiff from defendant, plaintiff’s rights upon breach of contract by failure to furnish water’ are measured by the contract; the fact that it was an irrigation contract being immaterial.
    [Ed. Note. — For other cases, see Waters and Water Courses, Dec. Dig. § 261.]
    16. Waters and Water Courses (§ 261) — Irrigation— Insufficiency of Supply — Excuses — Act of God.
    The fact that defendant irrigation company for about 10 years before the season of 1910 had procured water from the Colorado river, and that at no other time during such 10 years before the season of 1910 had such water supply failed, did not show that its failure in the season of 1910 by drought was due "to the “act of God,” excusing it on that ground from furnishing water for that season as contracted.
    [Ed. Note. — For other cases, see Waters and Water Courses, Dec. Dig. § 261.]
    7. Words and Phrases — “Act of God.”
    The term “act of God” may be defined to be the result of such natural causes as could not have been reasonably foreseen and provided against.
    [Ed. Note. — For other definitions, see Words and Phrases, vol. 1, pp. 118-126.]
    8. Contracts (§ 303) — Breach—Defenses— Act of God.
    In absence of statute, one who expressly contracts to do a thing is not as a rule excused from performance because it is • rendered impossible by an act of God.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1409-1443; Dec. Dig. § 303.]
    On Motion for Kehearing.
    9. Waters and Water Courses (§ 261) — Irrigation — Breach of Contract — Excuses —Act of God.
    The exception to the general rule that an act of God will not excuse nonperformance of a contract, which excuses performance where it depends upon the continued existence of a particular thing or person which ceases to exist, would not apply to excuse nonperformance of a contract to furnish water for irrigation prevented by a drought stopping the usual water supply; the contract not so providing and stipulating the payment of a certain amount of damages per acre in case of failure to furnish water.
    [Ed. Note. — For other cases, see Waters and Water Courses, Dec. Dig. § 261.]
    10. Contracts (§ 152) — Construction.
    Courts should hesitate to change by implication the terms of express contracts.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 732, 733, 738; Dec. Dig. § 152.]
    Appeal from District Court, Matagorda County; Samuel J. Styles, Judge.
    Action by E. J. Dodd against the Northern Irrigation Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Gaines & Corbett, of Bay City, for appellant. Holland & Murphy and Krause & Wilson, all of Bay City, for appellee.

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

   Findings of Fact.

JENKINS, J.

Appellee brought suit to recover damages against appellant for failure to furnish water for irrigation purposes, as per contract. The undisputed evidence shows that appellant and appellee entered into a written contract, whereby appellant was to lease to appellee 600 acres of land, belonging to it, for the year 1910, and was to furnish the seed for planting the same in rice and “water for the proper irrigation of the rice crop to be planted on the above-described land from its canal or pumping plant; it being well understood and agreed between the parties hereto that said party of the first part is to furnish water from its canal or pumping plant, which, together with natural rainfall, will be sufficient to properly irrigate said land. It is understood, however, that should the party of the first part fail to furnish enough water, which together with the natural rainfall will be sufficient to make a crop of rice on the above-described premises, or should the natural rainfall, in case the party of the first part fails to furnish enough water, or any water, fail to be sufficient to make a crop of rice on said premises, then the first party shall forfeit as damages to the second party a sum not exceeding $4 per acre for the land not irrigated or supplied with water either by said party of the first part or the natural rainfall.”

The appellee bound himself by said contract to cultivate said land in a proper manner and was to have one-half of the crop that he raised thereon.

Appellee complied with his part of the contract. Appellant failed to furnish any water after about the middle of June, and there was an insufficient rainfall, by reason of which the crop on said land was a total failure. Appellee alleged that the crop which he would have raised on said land, had appellant complied with its contract, would have been worth .$27,000, and he sued for one-half of this amount. Appellant answered by general and special demurrer, and specially pleaded that part of the contract which limited appellee’s claim for damages to $4 per acre. The court instructed the jury that, in the event they found for appellee, his measure of damages would be not exceeding $4 per acre, and the jury returned a verdict for appellee for this amount.

Opinion.

1. Appellant’s proposition under its first assignment of error is that its general demurrer should have been sustained, because appellee’s petition did not allege that appellant was negligent in failing to furnish water. This assignment is overruled for the reason that this was not a suit to recover on account of negligence on the part of appellant, but for breach of contract. Hack of negligence is no excuse for a breach of contract.

2. Appellant’s second and third assignments are to the effect that its demurrers should have been sustained, for the reason that appellee did not set out all of the written contract, and especially that he did not set out that portion of the contract which provided that $4 per acre should be the maximum damages allowed appellee. The petition alleged a contract whereby appellant was bound to furnish water to appellee for irrigating his rice crop, the failure to furnish such water, and the amount of damages he had suffered by breach of the contract. This petition stated a good cause of action, and it was not incumbent on appellee to plead that part of the contract which limited his right of recovery.

Besides this, the error, if any, would have been harmless, for the reason that the entire contract was read in evidence, and the court limited appellee’s right of recovery to $4 per acre.

3. Appellant in its fourth assignment of error complains of the action of the court in refusing to permit it to prove that the failure to furnish water was by reason of the drought of the year 1910, and that the Colorado river went dry.

Appellee objects to our considering this assignment of error for the reason that the bill of exception does not state what the witnesses would have testified as to this matter. We think the bill of exception is sufficient It is as follows: “Be it remembered: That upon the trial of the above numbered and styled cause in the court, on the 27th day of January, A. ,D. 1913, the following proceedings were had, to wit: The court refused to permit the defendant to prove by the witnesses A. M. Anderson, manager, B. J. Jones, engineer, and August Kelke, canal superintendent, of the defendant company, that the Northern Irrigation Company had been in operation for about ten years, and that at all times prior' to the season of 1910 they had procured water'from the Colorado river through the intake provided for the supplying of water for the season of 1910; that at no time prior to such season had there been a failure of its water supply in the Colorado river, or a failure of the crops on the canal; that the contract entered into between the plaintiff and the defendant was entered into on. the faith of being supplied from the usual and customary source (that is, from the Colorado river, and from the intake to be raised by its pumping plant into its canal); that as a matter of fact it did supply all of the water that was needed up to and including the 10th to the 15th of June, A. D. 1910; that at such time there was a complete failure of the water supply in the Colorado river, and no water could be procured from said liver for the irrigation of plaintiff’s rice, or the irrigation of the crops of the other farmers on the defendant’s canal; that no rice was grown or harvested on the canal of the defendant for the season, and that the sole rea'son for the failure to do so was the water supply in the Colorado river; that the manager of said defendant company kept his crew on said canal, kept fuel on hand, and kept the machinery in perfect condition and ready to pump and supply water at any moment that water could be obtained from the Colorado river, and if there had been a rise in said river, or an increase in the water from any source, it would have been able to supply it to the plaintiff. The court refused to permit or consider said testimony on the ground that failure of the water supply in the Colorado river did not exempt the defendant from liability for failure to supply water to the ■plaintiff, because there was no provision in the contract sued upon limiting liability for such cause, to which action of the court in refusing to permit such testimony, or to consider the same for the reason mentioned, the defendant then and there excepted.”

It appears from this bill of exception that defendant offered to prove the alleged facts, and that the court declined to hear any testimony in reference thereto, because there was no provision in the contract sued upon limiting liability for such cause. We think that the language “defendant offered to prove” is equivalent to a statement that the witnesses would have testified in accordance with said offer.

4. In support of' its proposition that the court erred in refusing to permit the proof offered, as set forth in the preceding paragraph of this opinion, appellant cites the case of Raymond & Oo. v. Erp, 146 S. W. 154. We do not think that the law, as announced in that ease, is applicable to the instant case. There the plaintiff was entitled to water as matter of law, under the irrigation act of 1895, by reason of the fact that he owned or had a possessory right to land adjoining and contiguous to the irrigation canal, and said act provided “that in case of shortage of water from drought, accident or other cause, the water to be distributed shall be divided among%ll the consumers pro rata, according to the amount he or they may be entitled to, to the end that all shall suffer alike and preference be given to none.”

In the instant ease appellee was not the owner and had no possessory right, except under his lease contract, to the land for which appellant bound itself to furnish water for irrigation purposes. We think the law, as announced in the case of Moore-Cortes Canal Co. v. Gyle, 36 Tex. Civ. App. 442, 82 S. W. 350, is applicable to the facts in this case. In that case the court said: “The question of how far an irrigation canal company, organized under the laws of this state, may limit its liability for failure to furnish water to persons who have the right under the statute to demand such servic’e from the company does not arise upon the facts of this case. The appellee is not the owner of land, nor has he any possessory right in land adjoining or contiguous to appellant’s canal, except such right as he obtained by the lease contract entered into with appellant. This contract is the charter of his rights, and appellant’s liability to him must be measured by its terms. Appellant could lease its land or not, as it pleased, and upon such condition as it saw fit.”

In the instant case the appellant was the owner of the land leased to appellee and, for aught that appears in the record, owned all of the land that could be watered by its irrigation plant. In fact, there is nothing in the record to show that any land, but that leased by appellee, could be irrigated from appellant’s canal, except the general statement in the bill of exceptions that it offered to prove that no water could be procured from said river for the irrigation of plaintiff’s rice, or the irrigation of the crops of other farmers on the defendant’s canal. But, taking it for granted that there were other lands subject to irrigation from said canal, such lands, for aught that appears in the record, may have been the property of appellant. At least it is certain that the land leased to appellee was the land of appellant, and that appellant bound itself by its contract to furnish water sufficient for irrigating the same, and that appellant failed to comply with its contract. We think this case rests upon the general law with reference to contracts, and the fact that it was a contract to supply water for irrigation purposes is immaterial.

5. Appellant seeks to excuse itself from compliance with its contract upon the ground that it was prevented from doing so by the act of God. Had the proof which was offered, as shown by its bill of exception above set out, been admitted, we do not think it would have shown that it was prevented by an act of God from compliance with its contract. The proof offered was that appellant had been operating its irrigation plant “for about ten years, and that at all times prior to the season of 1910 they had procured water from the Colorado river through the intake provided for supplying water for the season of 1910.” This, of course, means at all times during the ten years in which it had been’ in operation. Appellant further offered to prove “that at no time prior to such season (1910) had there been a failure of its water supply in the Colorado river, or a failure of the crops on the canal.” This must be taken to mean that at no time during said ten years had there been such failure.

The act of God may be defined to be the result of such natural causes as could not reasonably have been foreseen and provided against. Railway Co. v. Milling Co., 143 S. W. 1182; 1 Am. & Eng. Ency. Law, pp. 584, 585; 1 Cyc. 758. We do not think that, because there had not been a severe drought in Texas for ten years prior to any given period, it can be said that such drought could not reasonably be anticipated.

6. Regardless of whether or not the evidence offered would have shown that appellant’s failure to furnish water was by reason of the act of God, we do not think that the court erred in excluding such testimony. Such fact is a sufficient excuse for the breach of contract on the part of a common carrier, but is not a sufficient excuse for such breach on the part of any one else, unless made so by statute. “It is a well-established rule of law that, where a person creates a charge or obligation upon himself by express contract, he will not be permitted to excuse himself therefrom by pleading an act of God rendering such performance impossible.” 1 Am. & Eng. Ency. Law, p. 58S.

“A contract is not invalid simply because it turns out to be difficult, unreasonable, burdensome, or dangerous.” 9 Oye. p. 625.

“Where the performance becomes impossible subsequent to the making of the contract, the general rule is that the promisor is not discharged. As is said in an old case: ‘Where the law creates a duty or charge, and the party is disabled to perform it without any fault in him, there the law will excuse him; but, where the party of his own contract creates a duty or charge upon himself, he is bound to make good, notwithstanding any accident by inevitable necessity, because he ought to have provided against it by his contract.’ ” 9 Oye. 627, 628. An exception to this rule is where the performance of the contract is prevented by law.

The duty of transporting goods is imposed by law upon common carriers; and so it is by the irrigation act of 1895 upon irrigation companies to furnish water as to lands of others adjoining or contiguous to the irrigation canal; but the law did not impose any duty upon appellant to irrigate its own land. It bound itself by contract to do so and made no exception by reason of the act of God or inevitable accident, and we are not at liberty to read such exceptions into the contract.

For the reasons above stated, the judgment of the trial court is affirmed.

Affirmed.

On Motion for Rehearing.

Appellant requests us to specifically pass on its fifth assignment of error, which is that the court erred in refusing to allow it to prove by appellee on his cross-examination that an unprecedented drought prevailed in Matagorda county and along the Colorado river throughout the season of 1910. We overrule this assignment for the reason that the act of God is no defense to appellee’s cause of action.

To the general rule that the act of God is no defense to the failure to perform a contract, there is an exception, viz., where the performance of the contract depends upon the continued existence of a particular person or thing. Wells v. Calnan, 107 Mass. 514, 9 Am. Rep. 65; Dexter v. Norton, 47 N. Y. 62, 7 Am. Rep. 416; Nicol v. Fitch, 115 Mich. 15, 72 N. W. 988, 69 Am. St. Rep. 548. We have found, however, but two characters of cases in which this exception has been applied: One is where personal service is to be performed, as where one person agrees to marry another, or an artist agrees to paint a picture; the other is where the continued existence of a particular thing, which is the basis of the agreement, is necessary to the performance of the contract. In such cases the courts have said that there is an implied agreement that the performance of the contract is to be contingent on the continued existence of the person or thing. Appellant insists that this principle is applicable to the instant case, inasmuch as the evidence shows that both parties to the contract expected that the water would be obtained from the Colorado river. But it was not so specified in the contract. A tender of water in appellant’s irrigation ditch, suitable for irrigation purposes, obtained from wells, or from any other source, would have been a compliance with appellant’s contract. It does not appear that it was a physical impossibility for appellant to comply with its contract on account of the failure of the water in the Colorado river, which it would be necessary to show in any event, in order to excuse appellant on account of drought. It is no answer to say that to have obtained the necessary water from any other source would have been very expensive. Appellant had the option under its contract to either incur such additional expense or to pay the damages, not exceeding $4 per acre.

In Dexter v. Norton, supra, the court said: “The plaintiff would not have been obliged to accept any other cotton than the bales specified in the bought note.” In the instant case no particular water was specified in the contract, and it is probable that the water contemplated to be furnished was not in the Colorado river at the time the contract was made. Nor is any particular source from which the water was to be obtained mentioned. It is true that appellant expected to obtain the water from the Colorado river, and appellee expected that it would do so, but this is not sufficient to bring this contract within the exception mentioned.

In Summers v. Hibbard, 153 Ill. 102, 38 N. E. 899, 46 Am. St.- Rep. 874, doubtless both parties contemplated that the iron contracted for should be manufactured at defendant’s mill; and so in McGee v. Hill, 4 Port. (Ala.) 170, 29 Am. Dec. 277, it is evident from the defense interposed that it was expected that the corn contracted to be delivered should be raised on defendant’s farm; but it was not so specified in the contracts, and the courts refused to read these provisions into the contracts by implication.

In the case of Middlesex Water Co. v. Knappmann Whiting Co., 64 N. J. Law, 240, 45 Atl. 692, 49 L. R. A. 572, 81 Am. St. Rep. 467, where an inevitable accident, not provided for in the contract, was interposed as a .defense, the court quotes with approval from Mr. Chief Justice Shaw in Dam Co. v. Hovey, 21 Pick. (Mass.) 417, as follows: “The good sense of the rule seems to be this: That in case where, if an event happened, it must inevitably cause loss to one or the other contracting parties, the party who has contracted that such an event shall not happen, although he cannot specifically perform that contract, because the event may happen through the act of God or inevitable necessity, yet he shall take that risk and make good all the loss which shall occur in consequence of the happening of the event contemplated. The party thus contracting takes the consequences.” In the Water Company Case above cited there was no question as to the source from which the water was to be obtained, nor as to the machinery by which it was contemplated it would be supplied, but neither of these things were mentioned in the contract. In the instant case the event which appellant contracted should not happen was that appellee’s crop should not suffer for want of water. No particular water then in existence was agreed to be furnished, and no exception was made in case there should be a drought.

The maxim that as a man binds himself so shall he be bound is a sound one, and courts should hesitate to change express contracts by implication. The appellee may or may not have been willing to contract to cultivate appellant’s land without payment of damages, if appellant’s failure to furnish water should be occasioned by drought. All that we can say in this case is that he did not do so, and we are not at liberty to make a contract for him which he did not make for himself.

The motion for a rehearing is overruled.


author: HODGES, J.

text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. BEASLEY et al.
    (Court of Civil Appeals of Texas. Texarkana.
    Dec. 12, 1913.
    Rehearing Denied Jan. 1, 1914.)
    1. TbIAL (§ 256) — INSTRUCTIONS—SUFFICIENCY — FUTIIEE Earnings.
    Defendant cannot complain that an instruction in a personal injury action, that plaintiff should be allowed a sum which would reasonably compensate him for the time lost and the time he would lose in the future, if any, and for Ms decreased earning capacity in the future, and physical and mental suffering, etc., was defective in not stating that the value of the time plaintiff might lose in the future should be measured by its value in his crippled condition, where it did not request a special charge supplying such omission.
    [Ed. Note. — For other eases, see Trial, Cent. Dig. §§ 628-641; Dec. Dig. § 256.]
    2. Damages (§ 100) — Future Earnings — Value oe Time.
    The value of the time which one negligently injured will lose in the future from Ms injuries should be estimated at what he will be able to earn in his crippled condition, and not what he could earn if uninjured.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 237-241; Dec. Dig. § 100.]
    3. Trial (§ 256) — Preservation oe Grounds —Instructions—Request—Necessity.
    If an instruction is merely defective in not being complete, the party complaining must have requested an instruction supplying such omission in order to complain thereof on appeal.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 628-641; Dec. Dig. § 256.]
    Appeal from District Court, Harrison County; W. C. Buford, Judge.
    Action by Y. X. Beasley and others against the Missouri, Kansas & Texas Railway Company. From a judgment for plaintiffs, defendant appeals.
    Affirmed.
    See, also, 160.S. W. 471.
    Schluter & Singleton, of Jefferson, and Alex. S. Coke and A. H. McKnight, both of Dallas, for appellant. Jones & Bibb and F. H. Pren-dergast, all of Marshall, for appellees.

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

   HODGES, J.

In October, 1909, the appel-lee Beasley instituted this suit against the Marshall & East Texas Railway Company and the appellant, Missouri, Kansas & Texas Railway Company of Texas, for damages for personal injuries sustained. The petition alleges that on the 28th day of August, 1909, the appellee was in the employ of the Marshall & East Texas Railway Company as an engineer on one of its passenger trains running between Marshall and Winnsboro in this state; that, while at Winnsboro, and in the necessary discharge of his duties, he caused his engine to be moved along one of the tracks furnished by the Marshall & East Texas Railway Company at that place, for the purpose of examining and testing it, with a view of locating and repairing certain defects therein; that, while walking along watching the machinery of the slowly moving locomotive, he stepped upon or stumbled over a pole, or piece of timber, that had been “negligently left, placed, or allowed to remain along by the side of the track at that point, and that the piece of timber slipped, or rolled away, or plaintiff stumbled over the same, throwing plaintiff down, throwing his foot under the engine; and that the wheels passed over his foot and leg, crushing the same so badly that the same had to be amputated.” Then follow other allegations not necessary here to mention. In a succeeding portion of the petition, and what may be termed a separate count, .is the following: “The plaintiff shows that by some arrangement, the exact terms of which are unknown to plaintiff, and by some contract between the defendant Marshall & East Texas Railway Company and the defendant Missouri, Kansas & Texas Railway Company of Texas, that the defendant Marshall & East Texas Railway Company used the tracks, side tracks, and switches of the Missouri, Kansas & Texas Railway Company of Texas at Winnsboro, Tex., in entering the town of Winnsboro, and in having its passenger train remain at the said town of Winnsboro for one or more hours, during which time such repairs as were necessary were required to be made upon the engine of the Marshall & East Texas Railway Company by the engineer; and that, while the engine upon which he was running as engineer was placed upon the said track at said station, it became the plaintiff’s duty to have the said engine moved along the track for the purpose of ascertaining whether there were any defects,” etc. Then follows a substantial repetition of former averments regarding the nature of the injury, the circumstances under which it occurred, and the conduct and omissions of duty upon which the charges of negligence are based. The defendants in the suit filed separate answers, but a part of the special answer of the Marshall & East Texas Railway Company was adopted by the Missouri, Kansas & Texas Railway Company of Texas. Upon a trial before a jury, a verdict was returned in favor of the Marshall & East Texas Railway Company against the plaintiff, and in favor of the plaintiff against the Missouri, Kansas & Texas Railway Company of Texas, the appellant here, for the sum of $17,500. The Missouri, Kansas & Texas Railway Company of Texas alone has appealed.

The facts show that Beasley was injured in the yards of the appellant at Winnsboro, Tex., under circumstances substantially as alleged in his petition. When the train upon which he was the engineer reached Winns-boro upon that occasion, it was placed upon a track called the “house track,” there to remain until it started on its return trip to Marshall some time later in the day. Beasley testified that during the forenoon, while going from Marshall to Winnsboro, he discovered that there was what he called a “knock” in the machinery of his locomotive, and that when he reached Winnsboro he undertook to locate and remedy that condition before returning; that after the dinner hour the fireman, at his reguest, moved the engine slowly along the track upon which it had been placed, to enable Beasley to locate the “knock” and see that the machinery was in proper working order. He had previously been under the locomotive and tightened some wedges, after which he says, “I told him [the fireman] to move the engine. I was standing back even with the gangway between the engine and the tender, and I told him to back the engine; and, as he started to backing the engine, I started to walking up the left side of the engine, the north side of the engine, and got down something near the front drivers of the engine and turned around to look at the eccentrics, I think, and at that time the engine was backing up slowly about three miles an hour; and when I turned I stepped on this pole, or struck it in some way — anyway, it threw me, and I fell pretty near down; fell on my elbows; and my left foot went under the engine, and the engine mashed my foot just above the mouth of the shoe; at least, the doctors cut it off half way between the ankle and knee. I had not seen this pole before I stepped on it. When I stepped on this pole I was looking under the engine— looking under the boiler. The boiler of the engine is above the machinery; and I was looking beneath the boiler, and I was trying to see if any of the machinery was loose.”

From other portions of the evidence it appears that the pole to which he had reference was an ordinary round pole, the size estimated to be from 3 to 5 inches in diameter and from 6 to 7 feet in length. According to Beasley’s testimony, it was lying nearly at right angles with the rails, with one end pretty close to the rail. There was testimony which tended to show that the pole was one of a kind that had been used by lumber haulers in tightening chains around their loads of lumber to prevent the loads from slipping, and had been left upon the yards upon occasions when they unloaded lumber into cars at that place. Just how long this particular pole had been upon the track does not appear from the record, but there was testimony showing that poles of a similar kind were observed for a week, and longer, in the yards of the appellant, lying about at different places.

When this case was originally submitted in 1911, it was reversed and remanded for what we thought were errors contained in the charge to the jury. Eater a motion for a rehearing by the appellee was overruled, but, upon further consideration, this order overruling that motion was set aside and all of what we regarded as the vital questions involved in the appeal were certified to the Supreme Court. A full statement of the facts and the opinion of the Supreme Court answering the questions certified will be found in M., K. & T. Ry. Co. v. Beasley (Sup.) 155 S. W. 183. All of those questions except one were answered in a way that requires us to overrule the assignments of error upon which they were based.

That exception relates to the charge on the measure of damages. The question presented to the Supreme Court is as follows: “(4) Upon the measure of damages the court gave the following: ‘If you should find that the plaintiff is entitled to recover against the defendant or defendants, then you will allow1 him a sum of money that will reasonably compensate him for the time he has lost by reason of the said injuries, if any, and the time that he will lose in the future, if you should find that he will lose any time in the future, and for his decreased capacity to earn money in the future, if any, and for mental and physical suffering endured by the plaintiff by reason of said injury, if any, and for such mental and physical suffering as the plaintiff may endure in the future, if you shall find that he shall endure mental and physical suffering in the future; and fix said damages at such amount as if paid at this time will reasonably compensate him for the damages sustained.’ The following is the objection urged to that charge: ‘The court erred in its charge to the jury on the measure of damages, in that the charge as given authorizes a double recovery in that the jury are instructed that the plaintiff may recover compensation for the time lost and the time lie will lose, and, in addition to this, for his decreased or diminished earning capacity. The decreased capacity might also include the time he might lose in the future.’ ” The answer in substance says the charge permits, but does not require, the jury to assess double damages. As indicated in the opinion of Chief Justice Brown, the defect, if any, in the charge consists in its failure to furnish a complete and accurate guide to the jury for estimating the value of the time which Beasley may lose in the future.

Clearly such time should be valued at what Beasley in his crippled condition may be able to earn, and not at what his services would be worth in an uninjured condition. The charge given was not an affirmative misdirection, but was in a manner incomplete. If a special charge supplying this guide had been given there would have been no conflict between it and the main charge.

The general rule, under our practice, where the defect results from the absence of fullness in the charge, and it is not otherwise misleading, is to require the party who has the right to complain to present and request a special charge covering the defect. His failure to do this deprives him of the right to a reversal on appeal because of the defect. M., K. & T. Ry. Co. v. Hurdle, 142 S. W. 992; Weaver v. Nugent, 72 Tex. 272, 10 S. W. 458, 13 Am. St. Rep. 792; Harrell v. Houston, 66 Tex. 278, 17 S. W. 731; Milmo v. Adams, 79 Tex. 526, 15 S. W. 690. There may be instances in which the omission in the main charge is so fundamental that it amounts to a failure on the part of the court to perform the duty of giving the instructions required by statute; but we do not think this is one of that character. It is much like the defect in the court’s charge in the Hurdle Case cited above. There the Court of Civil Appeals held that the appellant should have requested a special charge on the subject, and affirmed the judgment because of the failure to do this. The gupreme Court refused a writ of error, thus indicating its approval of the ruling. If we can assume in this instance that the jury analyzed the court’s instruction on the measure of damages by taking separately each of the elements which he mentioned as proper to be considered, and proceeded with mathematical nicety to allow one amount for mental and physical suffering, another for impairment of Beasley’s ability to earn money in the future, and still another for the time he would probably lose in the future as a result of his injuries, we should also assume, in the absence of opposing evidence, that the jury acted as reasonable men would, according to the dictates of common reason, and allowed such damages only for loss of time in the future as might result from Beasley’s impaired efficiency to earn money. We cannot assume that the jury fell into an error simply because it had the opportunity to go wrong. It requires no expert knowledge of the law for one to know that, after having allowed him full compensation for the impairment of his ability generally to earn money, in estimating the value of the time he would probably lose on account of his injuries in the future, his earning capacity in his impaired condition should be taken into consideration and constitute the basis upon which the computation must be made.

The remaining assignments of error are overruled without discussion.

The motion for rehearing is granted, and the judgment of the district court is affirmed.