author: .HIGGINS, J.

text:
    PRIETO v. HUNT.
    (No. 309.)
    (Court of Civil Appeals of Texas. El Paso.
    May 7, 1914.)
    Evidence (§ 185) — Secondary Evidence.
    In an action for commissions for the sale of cattle, evidence held to show that the possession of a letter evidencing the contract was wrongfully and fraudulently obtained by defendant, thus rendering secondary evidence of the contents thereof admissible without notice to defendant to produce the original.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 642-660; Dec. Dig. § 185.]
    Appeal from District Court, El Paso County; A. M. Walthall, Judge.
    Action by Charles F. Hunt against Francisco A. Prieto. From a judgment for-plaintiff, defendant appeals.
    Affirmed.
    Ballard Coldwell, of El Paso, for appellant. Chas. A. Kinkel, of El Paso, for appellee.

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

   .HIGGINS, J.

Hunt filed suit against Prie- , to to .recover the sum of $2,961.75, alleged to , be .due as commission for the sale of cattle. It was averred that the parties had entered [into a written agreement in the city of El Paso, Tex., whereby the defendant agreed to pay a certain sum per head if plaintiff should procure a purchaser and effect the sale of certain cattle for defendant.

Plaintiff resides in El Paso, Tex., and defendant in the city of Chihuahua, Mexico. The testimony discloses that the contract between the parties was evidenced by a letter written by Prieto to Hunt, in which the former agreed to pay to the latter a sum per head for cattle to be sold by Hunt. Upon the trial secondary evidence of the contents of this letter was admitted over the objection that a proper predicate therefor had not been laid, since notice to produce the original had not been given. It was shown that the letter was in possession of the defendant, who obtained the same under the following circumstances: After the sale had been effected, Prieto failed to pay any commission, and wrote Hunt that he was in error in claiming the amount which he demanded, but, if Hunt had in his possession “any evidence that justifies what you say, I will comply with the requirements of such document.” Mrs. Hunt took the letter containing the -proposition of Prieto and went to the city of Chihuahua, Mexico, to see him. She called upon him and gave him a statement of the account, together with the letter containing his original proposal. Mrs. Hunt testified:

“I left that letter with him because he told me to return in the' afternoon, and that he would settle on the basis of that letter and statement at his residence in Chihuahua. I did return to his residence at 4 o’clock that afternoon. I did not get the letter; his servant told me he had gone to the country. When I went to see him in the morning, he was called to the door by his servant, and he talked to me very gruffly, and told me to return. I only went in as far as the vestibule. I handed him the letter and statement together. * * * Mr. Prieto told me the morning I called on him to return in the afternoon at 4 o’clock and he would settle. When I returned, his servant said he was not there, but his coach was at the side of the house. I have never seen the letter since that time.”

The general rule is well settled that secondary evidence of the contents of a written instrument in the possession or under the control of the adverse party is inadmissible, unless due notice to produce the original has been given. • To this rule there are a number of exceptions; one, to the effect that it is not necessary that such notice to produce be given if the adverse party has wrongfully or fraudulently obtained possession of the document. 2 Jones’ Commentaries on Evidence, § 223, at page 295; 17 Cyc. 529; Cheatham v. Riddle, 8 Tex. 162. The circumstances detailed above strongly indicate that Prie-to fraudulently obtained possession of the letter for the purpose of destroying the absolute and primary evidence of Ms obligation. The letter in which he wrote Hunt that, if there was any evidence in Hunt’s possession justifying the demands made, he would comply with the requirements thereof, coupled with the facts testified to by Mrs. Hunt, showing that he obtained the letter under promise of adjustment, and his failure to keep his appointment made for the purpose of making the same, was sufficient evidence to warrant the trial court in assuming that possession of the letter had been wrongfully and fraudulently obtained. Ry. Co. v. Dilworth, 95 Tex. 327, 67 S. W. 88.

For the reason indicated, the court did not err in admitting secondary evidence of the contents of Prieto’s letter, and the judgment is affirmed.


source: Caselaw Access Project

author: RAINEY, C. J.

license: Public Domain

text:
    McFADDEN, WEISS, KYLE RICE MILLING CO. v. ARDIS.
    (No. 7152.)
    (Court of Civil Appeals of Texas. Dallas.
    April 25, 1914.)
    Venue (§ 27) — Privilege oe Deeendant — Assignment oe Claim.
    Where a claim for breach of contract was assigned to plaintiff for a. valuable consideration, his assignor guaranteeing payment, the denial of defendant’s plea of privilege to be sued in the county of its residence, rather than that of the residence of plaintiff and his assignor, was not error.
    [Ed. Note. — For other cases, see Venue, Cent. Dig. § 41; Dec. Dig. § 27.]
    Appeal from Kaufman County Court; James A. Cooley, Judge.
    Action by L. H. Ardis against the McFadden, Weiss, Kyle Rice Milling Company and another. From a judgment for plaintiff, the named defendant appeals.
    Affirmed.
    Bumpass & Crumbaugh, of Terrell, for appellant. Bond & Bond, of Terrell, for appel-lee.

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

   Conclusions.

RAINEY, C. J.

Appellant, a corporation, whose office and place of business was in Beaumont, Jefferson county, Tex., contracted with J. M. Carter, a resident citizen of Kaufman county, Tex., to ship him from Beaumont ten cars of bran. Eight cars were shipped by appellant to Carter, but appellant refused to ship the two remaining cars, and Carter claimed damages in the sum of $110, which appellant refused to pay, claiming that the eight cars contained the amount contracted for. Carter transferred his claim against appellant for a valuable consideration to L. H. Ardis, also a citizen of Kaufman county, and guaranteed the payment of the claim.

Ardis brought this suit in Kaufman county against J. M. Carter and appellant on said claim. Appellant interposed a plea of privilege to be sued in the county of its residence, which is Jefferson, and pleaded subject to said plea of privilege that it had complied with the terms of said contract.

A trial was had before the court without a jury, and a judgment rendered by the court overruling said plea of privilege, and against appellant and Carter for the amount of said claim. The milling company alone appeals.

1. We conclude on the plea of privilege that, the lower court having found that Carter transferred the claim to Ardis for a valuable consideration, and that he had guaranteed its payment, we do not feel justified in the state of the evidence in holding that he committed error. McCoy v. Pafford, 150 S. W. 968.

2. On the merits of the ease we conclude-that the evidence warrants the rendition of judgment in favor of plaintiff, and it is affirmed.


author: KEY, C. J.

text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. WITHERS.
    (No. 5338.)
    (Court of Civil Appeals of Texas. Austin.
    May 6, 1914.)
    1. Railroads (§ 446*) — Injuries to Animals on Tracks — Jury Question.
    In an action for the value of a mule killed by one of defendant’s trains, where there wás evidence of defendant’s negligence in the particulars charged, the question of negligence was for the jury.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1627-1641; Dee. Dig. § 446.*]
    2. Railroads (§ 413*) — Injuries to Animals on Tracks — Fences — Duty to Repair Gates.
    Where a railroad company assumed the duty of keeping in repair a gate which, for the benefit of plaintiff, it placed in the fence along its right of way, plaintiff is entitled to recover for the value of a mule which escaped because of defects in gate and was killed on the right of way.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1459-1472; Dec. Dig. § 413.*]
    3. Appeal and Error (§ 882*) — Review—Es-toppel to Allege Error.
    Where special instructions given at appellant’s request were not correct, the conflict between such instructions and the court’s charge which correctly declared the law is no ground for reversal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3591-3610; Dec. Dig. § 882.*]
    Appeal from Caldwell County Court; J. T. Ellis, Judge.
    Action by H. C. Withers against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    A. B. Storey, of San Antonio, and Jeffrey, Jeffrey & Fielder, of Lockhart, for appellant. E. B. Coopwood and M. O. Flowers, both of Lockhart, for appellee.
   KEY, C. J.

Appellee sued appellant for the value of a mule, alleged to have been killed by one of appellant’s passeng'ér trains; and, from a judgment in favor of the plaintiff, this appeal is prosecuted.

Appellant’s right of way was fenced at the place where the animal was killed, and the proof indicates that it made its escape from appellee’s field onto the right of way through a gate that appellant had put in the fence. Appellee charged in his petition that appellant was guilty of negligence in letting the fence and gate get out of repair, so that the mule could go on the right of way, and that the employes in charge of the train saw the animal on the track and were guilty of negligence in not checking the speed of the train, so as to avoid injuring it. The plaintiff submitted testimony tending to support both of his allegations of negligence, and therefore the court properly submitted both of them to the jury. ■

Appellant contends that it could not be held liable upon the theory that the gate was out of repair, because the proof shows that it was put there for the benefit of the plaintiff and his tenants. It was also shown by uncontroverted proof that appellant had always assumed the duty of keeping the gate in proper repair, and that fact, it seems, takes the case out of the rule invoked by appellant. Railway Co. v. Russell, 48 Tex. Civ. App. 155, 106 S. W. 438.

Appellant urges some objections against the court’s charge; but, being of the opinion that they are not tenable, they are overruled.

We are disposed to concur in appellant’s contention that there was conflict between the court’s charge and some of the special instructions given at appellant’s request; but, to the extent of such conflict, the requested instructions were not correct, and should not have been given, and therefore we hold that the conflict referred to affords no ground for reversing the case.

There are some other assignments in appellant’s brief, all of which have received due consideration, and are overruled.

No reversible error has been shown, and the judgment is affirmed.

Affirmed.


author: JENKINS, J.

text:
    WESTERN UNION TELEGRAPH CO. v. FRICKE & BOYD.
    (No. 5364.)
    (Court of Civil Appeals of Texas. Austin.
    April 29, 1914.)
    1. Justices oe the Peace (§ 141) — Appeal— Jurisdiction — County Courts — Amount in Controversy.
    The county court has jurisdiction of an appeal from a justice’s judgment for less than $20.
    [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 467-476; Dec. Dig. § 141.]
    '2. Appeal and Error (§ 65) — Jurisdiction — Court oe Civil Appeals — Amount in Controversy.
    A Court of Civil Appeals has no jurisdiction, under Rev. St. 1911, art. 1589, subd. 3, of an appeal from a judgment of the county court rendered on appeal from a justice’s court, where the amount in controversy and the judgment of the county court are for less than $100.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 315-328; Dec. Dig. § 65.]
    Appeal from Lee County Court; John H. Tate, Judge.
    Action between the Western Union Telegraph Company and Fricke & Boyd. From a judgment for the latter, the former appeals.
    Motion to dismiss sustained, and appeal dismissed.
    Watson & Simmang, of Giddings, for the motion.

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

   JENKINS, J.

On a former day of the present term we inadvertently indorsed on appellees’ motion to dismiss this appeal “Overruled,” and judgment was accordingly entered. We supposed at that time that we were passing on the contention of appellant that the county court was without jurisdiction, for the reason that the judgment appealed from was less than $20. This contention was decided adversely to appellant in Brazoria County v. Calhoun, 61 Tex. 223.

We set aside the order overruling motion to dismiss upon our own motion, and sustain said motion and dismiss this appeal, for the reason that both the amount in controversy and the judgment of the county court were for less than $100. Rev. Stat. art. 1589, subd. 3; Green v. Warren, 18 Tex. Civ. App. 548, 45 S. W. 608.

Motion sustained, and appeal dismissed.


text:
    NEWMAN v. BENGE & FLEMISTER.
    (No. 5343.)
    (Court of Civil Appeals of Texas. Austin.
    April 29, 1914.)
    Frauds, Statute oe (§ 160*) — Instructions— Refusal.
    ■In an action for debt, where the pleadings and testimony presented the defense of the statute of frauds as to some of the items sued upon, the refusal of a requested charge correctly submitting that issue was erroneous.
    [Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. § 379; Dec. Dig. § 160.*]
    Appeal from Concho County Court; James E. Houze, Judge.
    Action by Benge & Flemister against W. S. Newman begun in justice court. From a judgment for plaintiffs in the county court, defendant appeals.
    Reversed and remanded.
    George E. Critz, of Paint Rock, for appellant. Hayne P. Young and Jas. M. Simpson, both of Paint Rock, and Woodward & Baker, of Coleman, for appellees.
   KEY, C. J.

This case originated in a justice’s court, but was appealed to, and finally tried in, the county court. It is an action of debt. The plaintiffs recovered, and the defendant has appealed.

Some of the objections urged by appellees to appellant’s brief are well taken; but we hold that the third assignment, which complains of the action of the trial court in refusing to give a requested instruction, is presented in such a manner as to require consideration, and that error was committed in refusing to give that charge. The pleadings and the testimony presented the defense of the statute of frauds as to some of the items in the account sued on hy appellees, and the court failed to charge upon that subject. The requested instruction was correctly framed, and would have supplied that omission, and it was error to refuse to give it; for which reason the judgment is reversed, and the cause remanded.

Reversed and remanded.


author: LEVY, J.

text:
    CHICAGO, R. I. & G. RY. CO. v. LA GRONE.
    (No. 1325.)
    (Court of Civil Appeals of Texas. Texarkana.
    April 30, 1914.)
    RAILROADS (§ 381) — -PERSONS ON TRACK — INJURIES — Contbibutoby Negligence.
    Plaintiff passed over a street onto defendant’s right of way in a city railroad yard and pursued a pathway between two tracks. He became aware of a following train, left the pathway, and traveled on the ends of the cross-ties along the track on which he supposed the train would not come, because from weeds and grass growing thereon he believed it was not the regular track. After walking on the ties nbout 75 feet, he was struck in the back by the end of the pilot beam of the engine of the train which in fact was approaching on the track near which plaintiff was walking on its way to a station. Plaintiff after getting on the ties paid no further attention to the train, hut if he had looked back he would have discovered his danger in ample time to have avoided it. Held, that he was negligent as a matter of law.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1285-1293; Dec. Dig. § 381.]
    Appeal from District Court, Tarrant County; Jas. W. Swayne, Judge:
    Action by W. T. La Grone against the Chicago, Rock Island & Gulf Railway Company. Judgment for plaintiff, and defendant ap-. peals.
    Reversed and remanded.
    Lassiter, Harrison & Rowland, of Ft. Worth, for appellant. McCart, Bowlin, Terrell & McCart, of Ft. Worth, for appellee.

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

   LEVY, J.

The action is by appellee to recover damages for personal injuries resulting from the alleged negligence of appellant. The jury returned a verdict for appel-lee. The court in the charge to the jury authorized a recovery in favor of appellee upon the two alleged grounds of (1) violation of city ordinances as to rate of speed of the train and continually ringing the bell of the engine, and (2) discovered peril. The appellant by proper assignments predicates error upon authorizing a recovery on the first ground mentioned, upon the contention that the evidence admittedly shows that appellee was guilty of contributory negligence. We •conclude that as this contention must be sustained, and the judgment reversed on account of the prejudicial error, it becomes unnecessary to make further statement of the case than immediately pertains to the present question.

While appellee was walking on the cross-ties of the track, outside the rail, he was struck in the back by the end of the pilot beam of an approaching passenger locomotive. He was knocked forcibly to the ground, and was injured, as he claims, and sues for such injury. The injury occurred in the yard of appellant about 200 feet south of where Fourth street crosses the appellant’s tracks. It appears that appellee on the morning of July 3, 1912, was going to his daily work in, the shops of a railway company other than appellant. I-Ie lived north of Belknap street in Ft. Worth leading by the courthouse. Instead of continuing to his work by the public streets, appellee concluded to go through appellant’s yard in a pathway between two tracks, as being a shorter route to his working place. The space between the two (racks was between six and eight feet wide, and was a well-beaten pathway, which, according to the evidence offered by appellee, was used generally by the public as a passage way. The tracks of appellant ran north and south for a long distance. It is heavy upgrade going south. Appellee was traveling south. When appellee reached a point about 100 feet south of Fourth street crossing, and some 400 feet south of a curve in the tracks, and of a grain elevator, he heard the exhaust of a locomotive and looked back north and saw over the top of some standing box cars on a track an approaching passenger train from the north going in the same direction he was traveling. It was the regular passenger train on time going into the depot. At the time appellee looked back and became aware of the train, it was about 600 feet distant from him, and was going about 12 or 15 miles an hour. The view up the tracks was plain and unobstructed. Appel-lee says: “When the engine got within 600 feet of me, there was nothing to obstruct the view of the engineer, from where he came out from behind those box cars. There was nothing to obstruct either his view or mine.” Appellee upon becoming aware of the train immediately left the pathway he was traveling, and got upon the end of the cross-ties, outside the rail, of the immediate west track, and continued his course, walking on the end of the cross-ties instead of in the pathway as before. After walking on the cross-ties about 75 feet, he was struck in the back by the end of the pilot beam of the engine of the approaching passenger train. Appellee after getting on the cross-ties never paid any more attention to the approaching train or his safety, or made any effort to get out of its way. Appellee admits, “I did not turn my head and look back again.” These facts are admittedly proven. Appellee explains his conduct by saying that the immediate west track that he got on.appeared, from weeds and grass, not to be the regular track, and he concluded that the train would come down the left track, and that he expected to be made aware of the immediate approach of the train by ringing of the bell and blowing of the whistle. There is dispute in the evidence as to the blowing of the whistle and ringing of the bell. The approaching passenger engine at the time was making heavy exhaust, which could be heard a long distance. Appel-lee could easily hear the exhaust. It is evident from these facts that appellee was walking in a dangerous place at the time the engine struck him, and that he voluntarily chose to occupy that place. If the train was 600 feet away at the time he got on the ends of the cross-ties, as he says, then appellee was not in that place, as shown by the facts from any emergency, and further he had ample time tp know and see the track the train was on, if he had only heeded the known movement of the train. And even if appellee concluded that he was not on the main line, he could under all the facts, by a mere look back in the direction of the train, have discovered his erroneous selection of tracks, and immediately have realized that the approaching train, of which he was fully aware, was bearing down on him on the very track he was occupying. We feel constrained to hold that under the particular facts of this case appellee was guilty of contributory negligence as a matter of law. Smith v. Ry. Co., 17 Tex. Civ. App. 502, 43 S. W. 34; Ry. Co. v. Wilkins, 32 S. W. 351; Ry. Co. v. Miller, 30 Tex. Civ. App. 122, 70 S. W. 25; Ry. Co. v. Mitchum, 140 S. W. 812. See Ry. Co. v. Wall, 102 Tex. 362, 116 S. W. 1140.

We do not deem it necessary to pass upon other features of the case, as the cause will be remanded for another trial.

For the error discussed, the judgment is reversed, and the cause remanded.


text:
    SOUTHWESTERN TELEGRAPH & TELEPHONE CO. v. COFFEY.
    (No. 1312.)
    (Court of Civil Appeals of Texas. Texarkana.
    May 8, 1914.
    Rehearing Denied May 21, 1914.)
    1. Parent and Child (§ 7) — Actions toe Loss of Services — Defenses.
    Where a father consented to the employment of his minor child for one kind of work, the employer, changing the employment without the consent of the father to more dangerous kind of work was responsible to the father for loss of the services of the child and expenses incurred following directly from the changed employment.
    [Ed. Note. — For other cases, see Parent and Child, Cent. Dig. §§ 72, 86-99; Dec. Dig. § 7.]
    2. Parent and Child (§ 7) — Actions for Loss of Services — Defenses.
    In an action by a father for damages for injuries to his minor son while an employs of defendant, evidence held to show that the father consenting to the employment by defendant of the child, did not consent to a change of work ordered by defendant.
    [Ed. Note. — E'er other cases, see Parent and Child, Cent. Dig. §§ 72, 86-99; Dec. Dig. § 7.]
    Appeal from District Court, Collin County; F. E. Wilcox, Judge.
    Action by W. D. Coffey against the Southwestern Telegraph & Telephone Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    The suit was brought by the father to recover in his own right damages for injuries sustained by his minor son. Ross Coffey, the son of appellee, at the time of the suit was a minor 17 years of age. On March 12,1912, and for a long time prior thereto, Ross Coffey, with his father’s knowledge and consent, was in the employ of appellant as a messenger boy. 'On March 12, 1912, the local manager of appellant company, empowered by the company to hire and discharge employe, and knowing the minority of Ross Coffey and of his employment as a messenger boy, entered into a contract with Ross Coffey to assist in the outside construction work of the company, such as stringing wires and installing poles. This employment of the minor was without the knowledge or consent of his father, and was work of a more hazardous nature than the regular employment as a messenger boy. On March 13th, the next day after the employment, while engaged in assisting to erect a telephone pole, Ross Coffey was grievously injured by the pole falling upon him. These findings of fact are warranted by the evidence, as well as the amount of damages awarded by the verdict of the jury. The petition pleaded, among other things, the employment by appellant of the minor to do the work of a messenger boy with the consent of the father, and the performance by the minor by contract with appellant, without the knowledge or consent of the father, of other and more dangerous kind of work. Appellant pleaded denial, accident, contributory negligence, assumed risk, and injury resulting from the negligence of a fellow servant.
    A. P. Wozencraft, W. S. Bramlett, and D. A. Frank, all of Dallas, and G. R. Smith, of McKinney, for appellant. R. C. Merritt and H. C. Miller, both of McKinney, and R. L. Moulden, of Farmersville, for appellee.

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

   LEVY, J.

(after stating the facts as above). The court charged the jury that ,“the undisputed evidence in this case as set forth above entitles the plaintiff to a verdict as a matter of law, and you will therefore return a verdict in favor of plaintiff for such actual damages, if any, as you may find he has sustained by reason of said injuries of said Ross Coffey received as above stated,” and then follow instructions respecting the measure of damages. The evidence “as set forth above” in the court’s charge, and on which the verdict was being directed, was that it appears that Ross Goffey, 17 years old, was employed with the consent of the father as messenger boy, and that on March 12, 1912, without the father’s knowledge or consent thereto, the boy was specially hired by appellant’s authorized agent, who knew the boy was a minor, to assist in the performance of outside construction work, such as stringing wires and setting poles, which was another and more dangerous kind of work than the father had agreed the boy should do and perform, and was injured while attempting to do such work on March 13, 1912.

The first and second assignments predicate error upon giving the charge quoted, upon the ground that there was sufficient evidence to raise an issue of fact of whether or not the father knew that his son was engaged in the particular work he was doing at the time of injury. It is the general rule that where the parent consents to the employment of his minor child to do a certain kind of work, and the employer changes the employment, without the consent of the parent, to the performance of another and more dangerous kind of work, the employer is responsible to the parent for the consequences, resulting in loss of the services of the minor and expenses to the parent, following directly from such employment. Ry. Co. v. Fort, 17 Wall. 553, 21 L. Ed. 739; Ry. Co. v. Redeker, 75 Tex. 310, 12 S. W. 855, 16 Am. St. Rep. 887; Ry. Co. v. Wood (Tex. Civ. App.) 24 S. W. 569; Cotton Mills v. King, 51 Tex. Civ. App. 518, 112 S. W. 132; Marburry Lbr. Co. v. Westbrook, 121 Ala. 179, 25 South. 914; Braswell v. Oil Mill Co., 7 Ga. App. 167, 66 S. E. 539. Applying this rule to the evidence in this ease, which conclusively supports the charge, the court properly, we think, gave the peremptory instruction. There is not, as we find, the slightest proof tending to show consent on the part of the father to the change of work in evidence. According to the facts, the boy was put to the changed work of outside construction, admittedly more hazardous than the work of a messenger boy, on the 12th day of March, and injured in such changed work on the following morning. Appellant’s manager admitted that he did not consult the father about the extra work before putting the boy to doing such work. And the father testified that he knew nothing about the boy’s being put to construction work outside of his duties as messenger boy. The boy testified that he did not tell his father about it. While there is evidence that on the first day of the changed work the boy assisted in putting a telephone in the father’s house, there is further evidence showing that the father did not know that his son assisted in the work In order to be an acquiescence in the change of employment, there must be knowledge on the part of the father that the change was made. As said in the Redeker Case, supra, “plaintiff was not required to give defendant notice that his son was not permitted to serve as a brakeman.” The evidence conclusively shows that there was no actual consent or acquiescence on the part of the father to the change of work, and the assignments are overruled.

We have fully considered the remaining assignments, and think they should be overruled.

The judgment is affirmed.


author: WILLSON, C. J.

text:
    FIRST TEXAS STATE INS. CO. v. JONES.
    (No. 1311.)
    (Court of Civil Appeals of Texas. Texarkana.
    April 23, 1914.)
    Insueance (§ 668) — Action on Policy — Question for Jury.
    In an action upon an accident policy, evidence held to make it a question for the jury whether a loss, to the insured was the result of sickness or of an accident within the meaning- of the policy.
    [Ed. Note. — For other eases, see Insurance, Cent. Dig. §§ 1556, 1732-1770; Dec. Dig. § 668.]
    Appeal from Grayson County Court; J. Q. Adamson, Judge.
    Action by H. M. Jones against the First Texas State Insurance Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Head, Smith, Maxey & Head and J. F. Holt, all of Sherman, for appellant. J. H. Randell, of Denison, for appellee.

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

   WILLSON, C. J.

Appellee sued appellant in a justice court, on a policy insuring him against loss as the result of accident or sickness, and on an appeal to the county court prosecuted by appellant recovered judgment against it in the sum of $196.70.

The policy was issued December 5, 1911, in consideration of $1.90 then paid to appellant, and appellee’s undertaking to pay it thereafterwards, on the 1st day of each month, $1.90 as a renewal premium. It contained stipulations as follows: (1) “Loss resulting wholly or partly from * * * lumbago, crick or lame back, sprain or strain of the back * * * is hereby classified as resulting from sickness, the original cause of such loss, or of the ailment causing the loss, notwithstanding." (2) “No payment of indemnity shall be made * * * for any disease or sickness contracted or beginning before this policy has been maintained in continuous force for five days after the first monthly renewal premium is due and actually paid.”

Appellee was a section hand on a railroad, and was injured December 31, 1911. He testified: “I was toting a cross-tie. It was about 11 o’clock. We was- in a cut, and I had a cross-tie on my shoulder. It was dark, and I was 'going along walking to keep out of the mud. I was stepping on these dry places, and missed one of them and fell in between the ties, and my head hit the tie. I had the tie on my shoulder, and that pressed me to the rail. Two men took the tie off of me. One throwed two ties together across the top and laid me down on it. They kept me laying there until 2 o’clock and then brought me home. I am a laboring man. I was in bed disabled until about the 21st of May. * * * I was hurt in the left hip, shoulder, and neck. There was no bruises on skin or anything, but there was swelling which was visible. It looked just like a sore place. * * * My back was hurt in the lower part. I do not know whether I had a sprain or not.”

Appellant’s contention was, and is, that it conclusively -appeared from the testimony that the loss to appellee was the result of sickness, and not of an accident, within the meaning of the stipulation in the policy first set out above, and that therefore, by force of the other stipulation set out, it appeared as a matter of law that it was not liable to ap-pellee. This insistence, as it is made in the brief, is based on the testimony of the witness Dr. Fleming, to the exclusion of the testimony of appellee as a witness in his own behalf. Of course, the trial court in determining the contention in the first instance should not have ignored the testimony of appellee, nor should we ignore it in reviewing his action. If, however, Dr. Fleming’s testimony was all there was in the case, we would be of the opinion it made a question for the jury (Kenny v. Ins. Co., 136 Iowa, 140, 113 N. W. 509), and therefore that the trial court did not err when he overruled the contention. Indeed, it rather appears from the statement in its brief that appellant’s insistence to the contrary may have been due to an unwarranted construction it gave to Dr. Fleming’s testimony. After that witness had testified that he treated appellee during four months, during which time he was confined to his bed and suffered from “his head, shoulders, back, •and hips,” he was asked this question: “Give me a history of the case. Was he suffering from bodily injury, or was it sickness he was suffering from and not an injury?” And replied: “That is my opinion.” Construing the question and answer, appellant hi its brief •quotes the witness as saying: “It is my opinion that it was sickness he was suffering from, and not an injury.” It is plain it might as reasonably be said that the answer of the witness was: “It is my opinion that it was an injury he was suffering from, and not sickness.” It is apparent, we think, that the reply of the witness did not answer the question propounded to him, and left the court and jury without information as to whether he thought appellee was suffering from sickness or an injury. The witness further testified: “I found no broken bones, or cuts or bruises, and found him complaining of pains up and down his back. The pain was in the small part of his back, and he could not straighten up his neck. I would call it a wrenched back — traumatic injury to the spine. I would not say whether his neck was wrenched or sprained in the fall or not. Think the muscles were sprained or wrenched, but there were no broken bones or dislocations. * * * He could not bend his back. His back was weak, though he was not lame in the back. * * * There was swelling about his shoulder, and I could not get him to straighten it. I don’t think he could use his neck much.” As we view it, the testimony of the witness fell short of showing conclusively that appellee’s disability was due either wholly or partly to lumbago, crick, or lame back, or a sprain or strain of the back. The jury, we think, reasonably might have concluded that the injury to appellee’s back was not due to a sprain or a strain thereof, but to a bruise or confusion suffered when he fell, which did not result in either lumbago, crick, or lame back. If it should be said that it appeared from the doctor’s testimony that he entertained an opinion to the contrary, the answer, we think, is that the jury were not bound by his opinion.

The judgment is affirmed.


author: HODGES, J.

text:
    STONE & WEBSTER ENGINEERING CORPORATION v. GOODMAN et al.
    (No. 1309.)
    (Court of Civil Appeals of Texas. Texarkana.
    May 12, 1914.
    Rehearing Denied May 21, 1914.)
    1. Master and Servant (§ 137) — Liability for Injury to Servant — Sane Place to Work.
    Plaintiff’s intestate was an employé of defendant, an engineering company, which was engaged in stringing an overhead feed wire for an electric car, and, at the time of his death, had charge of a team of mules hitched to the forward end of the wire to drag it along and pull it off the reel, which was located one half mile away. The reel having become exhausted, the men in charge thereof, after starting the signal along the line notifying deceased to quit pulling, “snubbed” the wire, or tied it around a pole, preparatory to attaching it to another reel. Deceased never received the signal, and consequently kept pulling until the clevis which fastened the end of the singletree to the doubletree broke, causing the doubletree to fly back, striking deceased in the head and killing him. Held, that it was the primary and nondelegable duty of defendant to exercise ordinary care to distribute a sufficient number of men along the highway for the purpose of transmitting signals from one end of the line to the other, since the supplying of such line of communication was essential to the safety of deceased.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 269, 270, 273, 274, 277, 278; Dec. Dig. § 137.]

      2. Master and Servant (§ 106) — Liability for Injury to Servant — Duty to Furnish Safe Appliances.
    Where a master hired a team from a third party and placed a servant in charge as driver, it was the master’s duty to exercise ordinary care to furnish such servant a reasonably safe doubletree, the master being as much responsible for its condition as though it were its own property.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 193-198; Dee. Dig. § 106.]
    3. Trial (§ 203) — Instructions.
    There was no error in refusing defendant’s requests instructing the jury to find for_ it as to certain acts of negligence set forth in the petition, where the court did not make those allegations grounds of recovery in the instructions which he gave.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 477 — 479; Dec. Dig. § 203.]
    4. Exceptions, Bill of (§ 8)— Sufficiency.
    Bills of exceptions complaining of the admission of testimony, not showing what testimony was objected to, were too indefinite to be considered.
    [Ed. Note. — For other cases, see Exceptions, Bill of, Cent. Dig. § 10; Dec. Dig. § 8.]
    5. Trial (§ 253) — Instructions.
    In an action for the death of a servant, a teamster, caused by a clevis breaking, causing the doubletree to fly back and strike him, a request that, if the team was not controlled by defendant, but under the control of the servant, and that' if defendant did not assume the custody and inspection of the doubletree, but left such to the servant, and if the servant was an experienced teamster and familiar with the doubletree, to find for defendant, was properly refused, because ignoring another ground of liability submitted, and also because there was no evidence that the servant had the exclusive control of the doubletree, and that it was his duty to inspect it.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 613-623; Dee. Dig. § 253.]
    Appeal from District Court, Dallas County; J.- C. Roberts, Judge.
    Action by Alva Goodman and others against the Stone & Webster Engineering Corporation. From a judgment for plaintiffs, defendant appeals. ,
    Affirmed,
    Lassiter, Harrison & Rowland, ofl Ft. Worth, for appellant. Carden, Starling, Car-den, Hemphill & Wallace, of Dallas, for ap-pellees.

      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

   HODGES, J.

In June, 1912, J. W. Goodman died as the result of injuries received while employed in the service of the appellant, and this suit was instituted by his wife and children to recover the statutory damages. A trial before a jury resulted in a verdict in favor of the plaintiffs below for the sum of $3,000.

The facts show that at the time the injury referred to was inflicted the appellant was engaged in stringing an overhead feed wire for an electric car line running from Dallas to Waxahachie. Preparatory to being used, the wire had been wound on a reel, and, in being placed in position, was unwound and pulled over cross-arms attached to upright poles set in the ground along the right of way. A team of mules driven by Goodman was on this occasion hitched to the forward end of the wire, and pulled the wire from the reel. At intervals the wire was by other employes thrown over the cross-arms, and then more of it was unwound as before. On this occasion the wire was being strung along one of the streets in Oak Cliff, and had progressed till practically all of the wire had been pulled from the reel and the employés in charge of that end were ready to tie on to the next preceding, strand. The testimony-shows that this strand of wire to which the team was hitched was approximately a half mile long. Smith and Vaughan, two em-ployés, were in charge of the reel. When Smith discovered that the wire was nearly off the reel, he gave a signal to Vaughan, to be passed on down the line, indicating that Goodman was to stop. Vaughan testified that he passed the signal on to another employé by the name of Behrens. There is no evidence as to whether Behrens transmitted this signal or not. But about this time the team ceased to pull; and Smith and Vaughan, thinking that this stop was due to Goodman’s having received the signal, began to connect the two ends of the wire. The stop, however, lasted only a very few minutes, when the wire again began to move. Vaughan then ran out into the street, several feet distant, and gave another signal. Smith, in the meantime, “snubbed” the wire; that is, he tied that end around a post; so that it could not be moved. It appears from the evidence that Goodman never, in fact, received any of the signals. He was something like a half mile distant from Smith and Vaughan, and depended upon signals for notice as to when they wanted him to stop. It also appears that he was approaching at that time a crossing over the line of the Dallas & Ft. Worth Interurban Railroad. His team was connected with the wire by means of a long rope tied to the doubletree. In order to pull the wire as far as possible without crossing the Dallas & Ft. Worth Interurban, he would pull until his team reached the track, then stop and shorten the rope, and pull again up to the track. Goodman, being in ignorance of the fact that the wire had been “snubbed” at the other end of the line, continued to urge his mules forward. One of them pulled his end of the doubletree ahead of the other.The singletree of the forward mule was fastened to the end of the doubletree by means of a clevis, and while in this position the clevis pulled out, and the end of the double-tree flew back and struck Goodman, inflicting the injuries from which he died.-

The evidence justifies the conclusion that the stop which occurred immediately after the first signal given by Smith and Vaughan was for the purpose of shortening the rope, and not in response to those signals.

It is claimed that the appellant was guilty of negligence in two respects: (1) In failing to furnish and place a sufficient number of men on that occasion for the transmission of the signals; (2). in failing to furnish a reasonably safe doubletree for the performance of the work in which Goodman was then engaged.

The first assignment of error complains of the following portion of the court’s main charge: “It was the duty of the defendant to exercise ordinary care to furnish, and so place, a reasonably sufficient number of men along the line of wire being stretched to transmit signals in a reasonably prompt manner from the reel to the deceased, J. W. Goodman, at the time he was injured; and a failure, if any, to exercise such care is negligence as that term is hereinafter used.” Before this charge was read to the jury, and in compliance with the statutory requirements, appellant presented substantially the following objection: That this paragraph makes the matter of distributing or placing the men to receive and, transmit signals on that occasion a primary and nondelegable duty of the defendant; whereas, according to the true rule, the defendant would discharge its primary and nondelegable duties by making and establishing a reasonably safe and sufficient system and method for doing that character of work, and by furnishing on that occasion a reasonably sufficient number of competent men. In other words, it is claimed that the matter of distributing and placing the men for the purpose of transmitting signals was a mere detail of the work, which might be intrusted to a subordinate employe, and was not one of the nonassignable duties of the master. It is conceded that, in order to sustain a recovery in this case, the evidence must show negligence in the performance of some of the nonassignable duties due of the master. The question then is: Was it the primary duty of the appellant on this, occasion to exercise ordinary care to distribute a sufficient number of men along the highway on which the wire was being placed, for the purpose of transmitting signals from one end of the line to the other? It is the primary duty of the master to exercise ordinary care to make the place where the servant is to work reasonably safe, and in the performance of that duty he should adopt such precautions as ordinary prudence would suggest, taking into consideration the existing conditions. If in this instance the supplying and placing of a sufficient number of men to establish a line of communication by signals from one end of the wire to the other was essential to the safety of Goodman while in the performance of his work, then it devolved upon the appellant to exercise proper care to establish that line. That duty could not well be performed without furnishing and also placing the men in proper position for the purpose of carrying into effect the end in view. Hugo Schmeltzer & Co. v. Paiz, 104 Tex. 563, 141 S. W. 518: Railway Co. v. McElyea, 71 Tex. 386, 9 S. W. 313, 1 L. R. A. 411, 10 Am. St. Rep. 749; Burns v. Merchants’ & Planters’ Oil Co., 26 Tex. Civ. App. 223, 63 S. W. 1063; Labatt on Master & Servant, § 576. There is no evidence in the record before us that the appellant had on this occasion established any definite system for the transmission of signals or for the distribution of the men. The work was being carried on under the immediate supervision of W. J. Griggsby, appellant’s superintendent and a vice principal. Hence, if there was an insufficient number of men or an improper distribution of them, the court had a right to infer that it was due to the failure of Griggs-by to place them as they should have been. In stringing wire over a long distance, necessarily involving constant changes in the attendant physical conditions of the surrounding country, there could be no fixed rule as to the number of men, their location, and the distance between them. A proper distribution of the men required the exercise of a certain amount of discretion and authority, which should be performed either by the master or by some representative. The fact that this duty had been intrusted to some employé does not relieve the master from his primary obligation. N. P. Ry. Co. v. Peterson, 162 U. S. 346, 16 Sup. Ct. 843, 40 L. Ed. 994; Jacksonville Ice & Elec. Co. v. Moses, 134 S. W. 379. If the men, after having been distributed, or their places designated, by the master or his representative, had failed to observe and transmit the signals, a different question would be presented. We do not think the charge is subject to the objection made.

The court also gave the following as a part of his main charge: “It was also the duty of the defendant to exercise ordinary care to furnish the deceased, J. W. Goodman, a reasonably safe doubletree to do the work in which he was engaged at the 'time of such injury, and a failure, if any, to exercise such care is negligence, as that term is herein used.” This was objected to upon the ground that it imposed absolutely on the defendant the duty to furnish Goodman a “reasonably safe doubletree,” without making any qualifications because of the fact shown by the evidence that the doubletree was not, in fact, furnished or to be inspected by the defendant company, but was owned and furnished by A. A. Barnes, or by Goodman, together with the team, wagon, harness, and the teamster. The testimony shows that A. A. Barnes was a brother-in-law to the deceased ; that the team being used upon that occasion, as well as the wagon and the doubletree, was the property of Barnes. On the 1st day of January preceding the injury Barnes turned the mules and appliances over to Goodman to work. Barnes fed the team, and gave Goodman one-half of the compensation received. He gave no directions to Goodman, and Rad no superintendence over him or the mules while they were at work. Barnes himself had made the doubletree, for use on his wagon, about a month before he delivered it to Goodman, and thought it a good implement when he made it. Griggs-by, appellant’s superintendent, testified as follows: “This was Barnes’ team. I suppose Mr. Goodman was employed by Mr. Barnes, but I don’t know anything about that. Mr. Goodman was not working for my company — -well, in a way he was, too. As I said before, whichever one of them — either he or Barnes — that happened to be there got the check. The check was written in Mr. Barnes’ name. Barnes hired the team driver for the company. The company dealt with Barnes. I suppose that doubletree was the property of Barnes; it was not the property of the Stone & Webster Engineering Corporation. * * * This $4 a day that we paid to Mr. Barnes covered the team and driver. We did not pay the driver; we paid $4 per day to Barnes, and he furnished the team and driver and other apparatus that he needed.” Among other things, the defendant below pleaded that the deceased was not directly employed by it, but was in the employ of Barnes; that defendant made an agreement with Barnes, by the terms of which he was to furnish to the defendant a team, harness, and man and doubletree, with the necessary and usual appliances, for the purpose of doing the character of work that was in progress at the time of the fatal accident, and also such other work along the defendant’s right of way as involved the use of a team; that Barnes was to receive and did receive from the defendant a fixed and agreed compensation per day for such team, equipment, and man; that the deceased was to receive the wages for his labor from his employer, Barnes, and not from the defendant. It was further alleged, in substance, that Goodman, under his contract with Barnes, was to have the charge, care, and control of the team and doubletree. The question here is: Was it the duty of the appellant to see that the doubletree was safe for that particular use, or did Goodman assume that duty himself? The only inference to be drawn from the pleadings and the evidence is that appellant procured the doubletree from Barnes and paid Barnes for its use. Appellant is therefore in the attitude of having furnished that appliance to Goodman, and is as much responsible for its condition as if the doubletree were a part of its own property and supplied from its own stock. Texas Traction Co. v. Morrow, 145 S. W. 1069; 1 Labatt on Master and Servant, § 172. If Goodman had himself furnished the doubletree as a part of the equipment for which he received a fixed compensation, the situation would have been different. We do not think this charge is subject to the objection made. No objection was raised upon the ground that the doubletree was a simple implement, one which it was unnecessary to inspect, or that the situation of the parties was such that no inspection was required by the employer. Under the statute in force at the time this case was tried, we are restricted to the consideration of the very objection urged before the charge was read to the jury.

The appellant requested a number of special charges, which were intended to instruct the jury to find for defendant as to certain acts of negligence set forth in the appellee’s original petition. The court having failed to make those allegations grounds of recovery in the instructions which he gave, there was no affirmative error in refusing the special instructions requested.

Appellant also complains of the admission of the testimony of the witness Vaughan. The bills of exception reserved on the trial are so indefinite that we are unable to determine exactly what testimony was objected to. They are really too general to be considered. Railway Co. v. Leak, 64 Tex. 656. Moreover, no testimony subject to the objection made is referred to. St. L. S. W. Ry. Co. v. Boyd, 56 Tex. Civ. App. 282, 119 S. W. 1154.

Appellant requested the court to give the following special charge: “If you should believe from the evidence that the team, harness, doubletree, and singletrees were not owned, possessed, or controlled by the defendant, while connected with defendant’s work, in the possession and charge of J. W. Goodman and under his care, control, and management, and if you should further so believe that, to the knowledge and with the acquiescence of J. W. Goodman, the defendant company did not assume the custody, keeping, and inspection of the mules and doubletree, but left such matters to Goodman himself, and if you should further believe that said Goodman was an experienced teamster, and was well acquainted with said team and doubletree, and was in as good position, and was as well able as any one else to know and judge of the strength and sufficiency of said doubletree and of the strength, qualities, and disposition of the mules, and if you further so believe that the doubletree was defective, and that the accident in question was proximately caused by such defect, and would not have happened but for such defect, then you are instructed to find for the defendant.” This charge was objectionable in several respects. In the first place, it ignored the other ground of liability submitted by the court based upon the failure of the appellant to furnish and properly distribute a sufficient number of men for the purpose of transmitting signals. It is further objectionable because it is predicated upon an assumption that there is evidence tending to show that Goodman had the exclusive control and management of the doubletree, and that it was Ms duty to inspect the same. There is no such evidence in the record.

A number of other special charges were requested and refused, which, if given, would have been in conflict with the main charge of the court. There was no error in refusing them.

The judgment is affirmed.


author: PLEASANTS, C. J.

text:
    LOFTUS v. STURGIS.
    (No. 6549.)
    (Court of Civil Appeals of Texas. Galveston.
    March 20, 1914.
    Rehearing Denied April 16, 1914.)
    1. Appeal and Error (§ 1050) — Haemless Eeeoe — Admission op Evidence — Immaterial Evidence.
    The admission of immaterial evidence, which is not of a character calculated to influence the jury in determining the issues presented, is not prejudicial.
    LEd. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dec. Dig. § 1050.]
    2. Evidence (§ 135) — Eeaud—Similab Mis-eepeesentations.
    In an action for fraudulent misrepresentations by which the plaintiffs were induced to enter into a lease, evidence that similar misrepresentations were made by the defendant to other parties before and after the time they were made to plaintiff was admissible.
    I Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 392, 394, 404, 405; Dec. Dig. § 135.]
    3. Witnesses (§ 414) — Coeeoboeative Evidence.
    In an action for fraudulent misrepresentations in leasing two theaters, where a witness for the plaintiff testified that defendant kept a false account book as to the receipts of the theaters, testimony that others had seen and examined a similar book, which contained false entries of the -receipts, was admissible to corroborate the witness.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1287, 1288; Dec. Dig. § 414.]
    4. Evidence (J 219) — Inducing Witness to Leave the State.
    In an action for fraudulent misrepresentations, testimony of a witness for the plaintiff that defendant had induced him to leave the state in order to prevent his testifying was admissible.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 762-770; Dec. Dig. § 219.]
    5. Evidence (§ 471) — Fbaud (§ 53) — Ma-teeiality — Conclusion.
    In an action for fraudulent misrepresentations as to the receipts from two theaters, which were leased by the defendant to the plaintiffs, where it was in issue whether' such representations were false, and it was shown that the receipts when plaintiffs took charge were much less than they were represented to be, testimony by the plaintiffs’ manager, called by the defendant as a witness, that he quit the employ of plaintiffs because plaintiffs knew nothing of the business and would not allow the witness to handle it as it should be handled, but was controlled in its management by two negroes, was material and a statement of fact and not a conclusion, and the exclusion of such evidence was error.
    [Ed. Note. — For other eases, see Evidence, Cent. Dig. §§ 2149-2185; Dec. Dig. § 471; Fraud, Cent. Dig. § 49; Dec. Dig. § 53.]
    6. Evidence (§ 471) — Fbaud (§ 53) — Materiality-Conclusion.
    Testimony by the same witness that the statements by defendant as to the expense of conducting the theaters were correct were material and not conclusions of the witness.
    [Ed. Note. — For other cases, see Evidence, Cent. ' Dig. §§ 2149-2185; Dec. Dig. § 471; Fraud, Cent. Dig. § 49; Dec. Dig. § 53.]
    7. Fbaud (§ 53) — Admissibility of Evidence — Competency—Knowledge of Witness.
    Where the evidence for the plaintiff showed that the witness was present when the lease was finally consummated, and the record does-not show that the witness did not know what statements were made by defendant to plaintiff before the lease was executed, it may be inferred that the testimony of the witness referred to the statements made by the defendant before the lease was executed.
    [Ed. Note. — For other cases, see Fraud, Cent. Dig. § 49; Dec. Dig. § 53.]
    8. Fbaud (§ 53) — Admissibility of Evidence — 1Tbuth of Representations.
    Evidence tending to show that such witness did not and could not know what the statements made by the defendant were would affect the weight of the testimony but not render it inadmissible.
    [Ed. Note. — For other cases, see Fraud, Cent. Dig. § 49; Dee. Dig. § 53.]
    9. Fraud (§ 53) — Admissibility of Evidence — Materiality.
    The further testimony of the witness that, after the plaintiff took charge of the theaters, the performers were dissatisfied, which had a tendency to hurt business, was admissible in rebuttal of plaintiff’s testimony that the shows were properly conducted while he had charge of them.
    [Ed. Note. — For other cases, see Fraud, Cent. Dig. § 49; Dec. Dig. § 53.J
    Appeal from District Court, Harris County; Charles E. Ashe, Judge.-
    Action by E. C. Sturgis against T. F. Loftus. Judgment for the plaintiff, and defendant appeals.
    Reversed and remanded..
    Fisher, Campbell & Amerman, of Houston, for appellant. W. J. Johnson and Edward S. Boyles, both of Houston, for appellee.

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

   PLEASANTS, C. J.

This suit was brought by appellee, E. C. Sturgis, and his wife, Mrs. E. C.- Sturgis, against appellant to recover damages for fraud and deceit of which the defendant is alleged to have been guilty in the lease by him to the plaintiffs of two moving picture shows and vaudeville theaters, owned and theretofore operated by defendant in the city of Plouston.

The following sufficient statement of the-substance of plaintiffs’ petition is copied from appellant’s brief: “The plaintiffs alleged: That about the 6th day of April, 1910, and on several occasions immediately thereafter, both of them at different times called upon the defendant Loftus in reference to leasing-from him two negro moving picture shows- and vaudeville theaters owned by him in the city of Houston, one at No. 211 Milam street, and the other at No. 514 Milam street. That Loftus represented to them that said moving picture shows were a highly profitable and money-making business, which required no experience to run. That he exhibited to them a set of books representing that they contained a true and correct statement of all the receipts of both houses from on or about February 1, 1910, to April 5, 1910, and represented to them that the expenses of both of said theaters as a total usually varied from $150 to $200 a week, but never exceeded $250 a week, exclusive of rent. That, relying upon said representations and statements, they entered into a lease contract with said Loftus on April 9, 1910, by which they leased both of said negro moving picture shows for a period of 104 weeks, beginning with April 11, 1910, at a total rental of $250 per week. That, contemporaneously with the signing of said lease, they paid to the said Loftus the sum of $500; $250 being for a bonus or deposit to be retained by said Loftus to secure the performance by said Sturgis and wife of their part of said lease contract, and the other $250 being in payment of the first week’s rent in advance for the week of April 11th to 17th. That on April 19th they paid Loftus $250 as rent for the week of April 18th to April 24th, and that on April 25th they paid him $250 as rent for the week of April 25th to May 1st. That, following the execution of said lease contract, they took possession of said show houses and undertook to conduct the same, and continued in possession thereof until on or about May, 1910, when they were forced to abandon said business. That all of the representations on the part of the said Loftus in regard to said business and the conduct thereof, and the receipts and expenses of the same, as well as the entries in said books of account, were false and willful misrepresentations, and were so known to the said Loftus at the time they were made, and that they were made for the sole purpose of inducing plaintiffs to enter into said contract. That such business under the management of said Loftus, or any other person, had never paid any such returns as represented by the entries in the said books of accounts, which was well known to Loftus at the time, and that said business had been operated at a loss by all of the previous lessees thereof. That the plaintiffs at all times managed and conducted said business in a wise, businesslike, and prudent manner, and they acted for the most part at the direction of the said Loftus in conducting said business until they discovered his fraud. That the false statements and representations made to them by Loftus became known to them only through their experience at his hands, after having paid said moneys above mentioned. That the damage incurred by them was the direct and proximate result of the conduct, false statements, and representations of the said Loftus. That, as soon as the truth about said business came to their knowledge, they rescinded said contract, and demanded a return of the money which had been paid by them to the said Loftus. That thereby they sustained actual damages in the total sum of $1,000. That all of the before-mentioned acts and representations pf the said Loftus were deliberately, willfully, and maliciously done, with the express purpose and intent to defraud, swindle and injure the plaintiffs, and because thereof the plaintiffs were deceived and defrauded and injured, to their further damage in the sum of $10,000, as punitive or exemplary damages.”

The defendant Loftus answered by general demurrer and general denial.

The ease was tried before a jury, and on March 12, 1913, a verdict was returned in favor of the plaintiff, E. O. Sturgis, against the defendant for $744 actual damages and $5,000, exemplary damages. The jury returned their verdict in favor of the defendant against the plaintiff, Mrs. E. O. Sturgis, under a peremptory instruction of the court, after the court had determined that, as the suit was one to recover damages to the community estate, the wife was neither a necessary nor proper party.

Both of the plaintiffs testified to statements made to them by the defendant before-the contract of lease was executed of the weekly receipts of each of the shows and the weekly expenses of conducting them. Mrs. Sturgis testified that defendant showed her-what purported to be an account book showing the daily receipts of each of the shows, which corroborated the statements made by the defendant as to the amount of said receipts. Both plaintiffs testified that not withstanding they conducted said shows, after they took charge under their lease, in a careful and businesslike manner, and as advised by the defendant, the receipts were much less than defendant had represented them to be, and the necessary expenses were larger, and the weekly net proceeds were insufficient to meet the amounts which they had agreed to pay defendant under their lease contract.

The plaintiffs conducted the shows under their lease from defendant from April 11 to-May 10, 1910, when they refused to be longer bound by the lease and demanded of defendant a return of the amounts paid him. They were induced to make the lease contract by the statements made to them by the defendant of the profits of the business, and in making said lease contract relied wholly upon, defendant’s representations.

In support of their claim that the representations made by the defendant were false, they proved by McKenzie, a witness in their behalf, that he was employed by defendant as an assistant in conducting the shows in question in March, 1910; that he took the-money received at each of the shows daily to defendant; and that the defendant made entries of these daily receipts in two small account books. In one of those books the amount of receipts was correctly entered, but false entries were made in the other showing the receipts to be larger than they were in fact. This witness described the books in which these entries were made; the incorrect or padded book, according to his statement, had a red cover, and the book with the correct entries had a stone colored canvas back.

The defendant testified that he made no untrue statements to plaintiffs as to the receipts or expenses of the shows, and that the account book he showed them contained true and accurate entries of the receipts from said shows. He denied that he ever kept two account books or ever made a false entry of said receipts in any account book.

It would serve no useful purpose to discuss the various assignments of error presented in appellant’s brief. Most of the assignments are predicated upon the ruling of the trial court in admitting evidence over the objections of the defendant, or sustaining objections of plaintiffs to testimony offered by the defendant.

In regard to the evidence admitted over defendant’s objection, some of it appears to us to be immaterial, and for that reason should not have been admitted, but it was not of a character calculated to influence the jury in determining the issues presented by the pleading, and its admission would not authorize a reversal of the judgment.

It was competent for plaintiffs, in support of their allegations of fraud and misrepresentations made to them by defendant in regard to weekly amounts received by him from his shows, to prove similar misrepresentations made by defendant to other parties before and after the time such representations were made to plaintiffs, and also to prove, in corroboration of the testimony of the witness McKenzie as to the false account book kept by defendant, that others had seen and examined books kept by the defendant similar to the one described by McKenzie, which contained false entries of the amount of the receipts from said shows.

The testimony of McKenzie, to the effect that defendant had induced him to leave the state in order to prevent his testifying in this case was also admissible, as a circumstance tending to show that defendant was guilty of the charges made against him by McKenzie.

The seventh assignment of error is as follows: “The court erred in refusing to permit the defendant to read in evidence the seventh direct interrogatory propounded to defendant’s witness F. R. Gooch, as follows, to wit: ‘Please state why you quit the employ of the plaintiff, with whom you had the contract of employment, and state what you told said plaintiff, if anything, as to why you were quitting said employment. Go into detail and state fully’ — together with the answer thereto, as follows, to wit: ‘The reason I quit the employ of Mr. Sturgis was because he knew absolutely nothing of the business he was engaged in, and would not let me handle same as I knew it must be handled to make a success of it. As soon as I took possession,' and discovered that Sturgis had no force of character, and was being led by a negro woman named Nannie, and a negro man named Levi, I immediately went to E. O. Sturgis and made plain statement of facts, and told him that they would, in my opinion, rob him and break up his business, if he did not get rid of them at once, and I would not be responsible, as I had seen enough, and they would have to go or I would go, but he seemed to be in their control, and after much turmoil, I quit.’ Which were excluded under the objection made by the plaintiff that the interrogatory called for a conclusion of the witness, and not a statement of fact, and because the same was irrelevant and immaterial, and that the answer stated a conclusion of the witness, and stated his reasons, without giving facts supporting them, and was irrelevant, immaterial, and not responsive.”

The evidence shows that, when plaintiff leased the shows from defendant, they employed the witness Gooch as manager of the business. 1-Ie was experienced in the moving picture show and vaudeville theater business. Had been in the business for more than eight years, during which time he had run houses of this kind for himself and as manager for others. As before shown, there was a sharp conflict in the testimony upon the issue of whether defendant’s representations to plaintiffs as to the amount of the weekly receipts from his shows were false. One of the strongest circumstances, tending to show that the representations were false, was the fact that the receipts, after plaintiffs took charge, were much less than defendant had represented them to be prior to that time, and both of the plaintiffs testified in effect that the shows were properly managed after they took charge, and there was no reason for any falling off in the receipts. We think the testimony of the witness Gooch set out in this assignment was admissible as tending to rebut plaintiffs’ claim that the shows were properly managed and conducted, and to account for the diminution of the receipts. The statement of the witness as to how the business was conducted, and that he, an experienced manager of shows of this kind, was not allowed to direct how these shows should be carried on, and that plaintiff allowed the two negroes named to control the management of the business, were statement of facts and not conclusions. We think this portion of the testimony was material and was not subject to the objections urged against it by the plaintiffs, and the court erred in sustaining said objections.

The eighth assignment of error is as follows: “The court erred in refusing to permit the defendant to read in evidence the tenth direct interrogatory propounded to defendant’s witness F. R. Gooch, as follows, to wit: ‘If you say that the defendant Loftus made a statement of the number and names of the performers and employés of said theaters, and the salaries paid to them, and the other operating expenses, then please state whether or not you afterwards found the statements so made by the defendant Loftus to be correct; and, if not, please state in what respect you found this statement to have been wrong’—together with the answer thereto, as follows, to wit: ‘The statement given Sturgis and myself by Loftus was absolutely correct and the guide I work by— Mr. Loftus misrepresenting nothing.’ Which was excluded under the objection of the plaintiff that the same was irrelevant and im■material, and a statement of the conclusion of the witness, and because there was not sufficient predicate in the deposition for this introduction, and the conclusion therein stated was not binding upon the plaintiff.”

One of the representations of the defendant alleged to be false by the plaintiffs was his statement as to the weekly expenses of conducting the ■ shows. Plaintiff testified that these expenses were much greater than represented by defendant, and this was one of the grounds of recovery submitted to the jury by the charge of the court. In these circumstances it is manifest that any evidence tending to show the truth of defendant’s statements to plaintiff of the expenses of conducting the shows was material. We think it equally clear that the testimony set out in this assignment tended to establish the truth of defendant’s statements as to said expenses. We fail to see how the statement of the witness can be regarded as a mere conclusion, nor do we understand what is meant by the objection “that there was not sufficient predicate in the deposition for its introduction.”

In the reply made to this assignment in appellees’ brief it is contended that the evidence does not show that the witness was present when defendant made the statements to plaintiffs which induced them to execute the lease, and therefore he could not know what said statements were. From the testimony of E. 0. Sturgis, it appears that Gooch was present when the lease was finally consummated, and there is nothing in the record tending to show that the witness did not know what statements were made by the defendant to Sturgis before the lease was executed. It is a fair inference from the testimony of the witness above set out that he was referring to the statements made by defendant before the lease was executed.

If there is evidence in the record tending to show that he did not and could not know what these statements were, such evidence would affect the weight of the testimony, but would not render it inadmissible. The assignment must be sustained.

The ninth assignment complains of the ruling of the court in sustaining objections of plaintiffs to the testimony of the witness Gooch that, after plaintiffs took charge of the shows, “the performers were dissatisfied, the report of the house being closed, and the confusion of the disorganization of the performers had a tendency to hurt business.”

It is clear that the conditions testified to by the witness would have a tendency to injure the business, and the existence of such conditions was a relevant fact which could be properly considered by the jury in rebuttal of plaintiffs’ testimony that the shows were wisely and properly conducted while they had charge of them. For the reasons stated in discussing the seventh assignment, this testimony was material, and the court erred in sustaining plaintiff’s objection thereto.

For the errors indicated, the judgment of the court below is reversed, and the cause remanded.

Reversed and remanded.