text:
    MEMPHIS COTTON OIL CO. v. TOLBERT.
    (No. 659.)
    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 7, 1914.
    Rehearing Denied and Request to Certify Refused Dec. 5, 1914.)
    1. Appeal ahd Erbob (§ 750) — Assignment op Erbob — Issue Raised.
    An assignment of error that under a defense pleaded, the evidence introduced, and the verdict thereon, it was error to render judgment for plaintiff does not raise the issue that the answer undenied was a bar to recovery.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 3074-3083; Dec. Dig'. § 750.]
    2. Pleading (§ 182) — Special Matters op Defense — Eailube to Answer.
    Rev. St. 1911, art. 1829, as amended, providing that specially matters of defense not answered shall be taken as confessed, does not apply to matters anticipated by the petition; so that the allegations of the answer are the mere converse of those of the petition.
    [Ed. Note. — Eor other cases, see Pleading, Cent. Dig. §§ 387, 388; Dee. Dig. § 182.]
    3. Pleading (§ 412) — Waiver of Objections —Want of Reply.
    Any right of defendant to judgment on the pleadings, because of absence of reply to allegations of the answer, is waived by proceeding to trial without claim thereof.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 1387-1394; Dec. Dig. § 412.]
    4. Statutes (§ 114) — Subject and Title-Workmen’s Compensation Act.
    The Workmen’s Compensation Act (Acts 33d Leg. c. 179 [Vernon’s Say les’ Ann. Civ. St. 1914, arts. 5246h-5246zzzz]) has but one subject, and that expressed in the title, in compliance with Const, art. 3, § 35; the ends to be reached, while more than one, all relating to the employer’s liability, and the proceedings for compensation of certain employes.
    [Ed. Note. — For other cases, see Statutes, Cent. Dig. §§ 145, 147-149; Dec. Dig. § 114.]
    5. Constitutional Law (§ 245) — Equal Protection of the Laws — Workmen’s Compensation Act.
    The Workmen’s Compensation Act is not violative of the equal protection clause of the United States Constitution. Const. U. S. Amend. 14, § 1.
    [Ed. Note. — Eor other cases, see Constitutional Law, Cent. Dig. § 702; Dec. Dig. § 245.]
    6. Constitutional Law (§ 301) — Due Process — Workmen’s Compensation Act.
    The Workmen’s Compensation Act is not violative of the due process of law clause of the United States Constitution (Const. U. S. Amend. 14, § 1) and Const. Tex. art. 1, § 19.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 848-850, 857; Dec. Dig. § 301.]
    7. Master and Servant (§ 16%, New, vol. 16 Key-No. Series) — Workmen’s Compensation Act — Police Power — Public Policy.
    The Workmen’s Compensation Act is within the police power, and not contrary to public policy.
    8. Statutes (§ 64) — Partial Invalidity — Workmen’s Compensation Act.
    Even if the sections of the Workmen’s Compensation Act, authorizing creation and regulation of the Texas Employers’ Insurance Association, violate Const, art. 12, §§ 1, 2, as to creation of private corporations, they may be eliminated without impairing the sections as to contributory negligence, assumed risk, and fellow servants, complete within themselves and capable of being executed in accordance with the legislative intent.
    [Ed. Note. — Eor other cases, see Statutes, Cent. Dig. §§ 5S-66, 195; Dec. Dig. § 64.]
    9. Damages (§ 221) — Injuries to Servant —Trial — Verdict — Sufficiency — Certainty.
    A verdict finding that $7,000 would fairly compensate plaintiff for his injuries, that his earning capacity was decreased by his injuries $5,000, and that the first amount should be diminished two-fifths on account of his contributory negligence, is sufficiently certain to sustain a judgment.
    [Ed. Note. — Eor other cases, see Damages, Cent. Dig. §§ 563-566; Dec. Dig. § 221.]
    10. Master and Servant (§ 87%, New, vol. 16 Key-No, Series) — Injury to Servant — Assumption of Risk — Workmens’ Compensation Act.
    Assumption of risk is, under the Workmen’s Compensation Act, not a defense to a servant’s action for injury.
    11. Appeal and Error (§ 742) — Grouping Assignments — Briefing.
    An assignment complaining of the granting of plaintiff’s motion for judgment for $7,200 because excessive, and because the jury’s finding authorized one for only $4,200, and one complaining of refusal of defendant’s motion for a judgment for only $4,200, because there was no pleading or evidence to support one for more, relate to the same question, and so may be grouped in the brief and considered together.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    12. Appeal and Error (§ 742) — Assignments of Error — Propositions.
    Neither the proposition that the jury’s finding in answer to an issue requested by plaintiff was not signed by the jury nor one that defendant’s plea of contributory negligence, assumption of risk, and fellow servant, not having been denied by supplemental petition, should have been taken as confessed is germane or relevant to, or included in, assignments complaining of the granting of plaintiff’s motion for judgment for $7,200, because excessive, and because the jury’s finding authorized one for only $4,200, and of the refusal of defendant’s motion for a judgment for only $4,200, because there was no pleading or evidence to support one for more.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]

      13. Appeal and Error (§ 742) — Assignments op Error — Propositions.
    Assignments of error not propositions in themselves, and followed by no propositions, but referring- merely to propositions under another assignment, not germane to them, will not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    14. Appeal and Error (§ 742) — Grouping Assignments — Briefing.
    Assignments of error, one that plaintiff failed to plead diminished earning capacity as an element of damages, and that there was no evidence thereon, and therefore the judgment was $3,000 excessive, another that the judgment should not have been $7,200, but not to exceed $4,200, because the pleadings, evidence, and jury’s findings did not authorize it, and another that the jury’s findings show they did not intend to find for plaintiff in excess of $4,200, and that the judgment was $3,000 in excess of what they intended to return, present questions so related that the assignments may be grouped in the brief and considered together.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    15. Damages (§ 221) — Injuries to Servant —Trial—Submission- of Issues — Diminished Earning Capacity. »
    'ihe issue submitted to the jury, “What sum, * * * if now paid, would fairly compensate plaintiff for such injuries as he received in the loss of his arm, part of bis ear, the injuries * * * to his head, neck, * * * side and * * * foot, and to his hearing, * * * and to his mind and memory,” with a direction that, “In answering this question, you may take into consideration the physical and mental pain * * * suffered by plaintiff, because of his said injuries, and whether or not and to what extent his injuries are permanent,” includes a consideration of diminished earning capacity in the future.
    [Ed. Note. — For other cases, see Damages, Century Dig. §§ 563-566; Decennial Dig. § 221.]
    16. Appeal and Error (§ 274) — Objections Raised by Exception — Instructions.
    Objection that a charge permits a double recovery is not presented by an exception: “It is not the law, there is no pleading, and no evidence to support the issue.”
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1591, 1592, 1605-1607, 1624, 1631-1645; Dec. Dig. § 274.]
    17. Appeal and Error (§ 273) — Review—Instructions — Waiver of Objections.
    A charge not having been excepted to as authorizing a double recovery, objection to it on that account is waived under the law with reference to charges, as amended by Acts 33d Deg. c. 59.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1590, 1606, 1620-1623, 1625-1630, 1764; Dec. Dig. § 273.]
    18. Damages (§ 221) — Injuries to Servant -Trial — Verdict and Judgment.
    IVhere, under issues submitted, the jury find the whole amount of plaintiff’s damages from his injury to be $7,000, and the amount of his damages from diminished earning capacity to be $5,000, the latter being included in the former, only the $7,000 can be considered in rendering judgment.
    [Ed. Note. — For other cases, see Damages, Century Dig. §§ 563-566; Decennial Dig. § 221,]
    19. Damages (§ 159) — Trial (§ 311) — Diminished Earning Capacity — Pleading and Proof.
    Alleging and proving physical and mental condition which would necessarily result in loss of earning capacity is sufficient pleading and proof of diminished earning capacity, which may be ascertained by the jury from their common knowledge of men.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 429-438, 440-444, 447, 449^153; Dec. Dig. § 159 ; Trial, Cent. Dig. § 739; Dec. Dig. § 311.]
    20. Evidence (§ 471) — Opinions.
    Testimony of persons who knew plaintiff before and after his injury that thereafter they noticed a changed condition in his ability to remember things and talk connectedly,. relating what they observed, is not opinion evidence as to his mental condition.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2149-2185; Dec. Dig. § 471.]
    21. Master and Servant (§ 270) — Injury to Servant — Negligence- — Pleading and Proof.
    Though a servant’s petition for injury from a belt coming off a pulley merely charged negligence in the belt being too short, condition of a shaft, though not admissible to show negligence in that respect, is admissible as bearing on the fact that the belt, if too short, would be thrown from the pulley.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 913-927, 932; Dec. Dig. § 270.]
    22. Appeal and Error (§ 1050) — Harmless Error — Admission of Evidence.
    The court having only submitted to the jury the negligence charged in the petition, any admission of evidence bearing on negligence in another respect was harmless.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dec. Dig. § 1050.]
    23. Damages (§ 158) — Personal Injuries— Pleading and Proof.
    Ordinarily personal injuries other than those alleged in the petition cannot be proved.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 441-444; Dec. Dig. § 158.]
    24. Appeal and Error (§ 1053) — Harmless Error — Admission of Evidence.
    Plaintiff’s testimony of his having received an injury other than those alleged in the petition, having been expressly withdrawn from tbe jury, was harmless.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig, §§ 4178-4184; Dec. Dig. § 1053.]
    25. Appeal and Error (§ 1052) — Harmless Error — Admission of Evidence.
    Plaintiff having been found guilty of contributory negligence, admission of any conclusion that plaintiff got in the best position he could was harmless.
    [Ed. Note — For other cases, see Appeal and Error, Cent. Dig. §§ 4171-4177; Dec. Dig. § 1052.]
    —Demonstrative Evi-ERVANT. 26. Evidence (§ 194) dence — Injury to S
    The shoes which plaintiff wore when injured by the coming off of a belt while he was putting it on, being in the same condition as at the time of the accident, are admissible.
    [Ed. Note. — For other cases, see Evidence,Cent. Dig. § 679; Dec. Dig. § 194.]
    27. Damages (§ 173) — Personal Injury — Pleading and Proof.
    The wages received by plaintiff and his ability to fire on an engine, though not expressly pleaded, may be shown in a servant’s action for injury while employed about an engine.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 490-492, 501; Dec. Dig. § 173.] 28. Master and Servant (§ 270) — Injury to
    Servant — Negligence—Evidence. _ .
    _ As bearing on the alleged negligence, in a servant’s action for injury from the coming off of a belt while he was putting it on, that it was too short, evidence that on a subsequent attempt to put it on the same pulley it came off is admissible.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 913-927, 932; Dec. Dig. § 270.]
    Appeal from District Court, Hall County; J. A. Nabers, Judge.
    Action by A. T. Tolbert against the Memphis Cotton Oil Company. Judgment for plaintiff, and defendant appeals.
    Reformed and affirmed.
    Presler & Thorne, of Memphis, Chas. K. Lee and W. D. Smith, both of Ft. Worth, and Taylor & Humphrey, of Henrietta, for appellant.
    Moss & Leak, of Memphis, R. R. Hazlewood and Jones & Miller, all of Amarillo, for appellee.

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

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

   HUFF, C. J.

A. T. Tolbert, appellee, instituted this suit in the district court of Hall county against appellant, Memphis Cotton Oil Company, for damages for personal injuries received while in the employment of appellant in and about its mill. The statement of the pleadings will be noticed later under assignments of error.

The appellant presents as his first assignment the following:

“Because the judgment of the court is contrary to the law and the evidence and the findings of the jury in this said cause, in this: That the defendant pleaded as a defense assumed risk, fellow servant, and contributory negligence; and the jury found in favor of each and all of said defenses, and the court, notwithstanding the fact said defenses were pleaded, the proof made, and the jury finding in favor of each of said defenses, wholly failed and refused to enter up a judgment on said defenses and on said findings of the jury, which is contrary to law.”

Appellant presents, as additional propositions under the above assignment, six propositions and subdivisions a, b, c, d, and e of proposition 6. The statement follows the last proposition, setting out the answer of appellant, the special issues submitted to the jury for their findings, and certain requested issues, and the answer of the jury to the issues. The first additional proposition is substantially that the defendant, having pleaded the defense of assumed risk, fellow servant, contributory negligence, which plaintiff failed to deny by supplemental petition, the court was not authorized to submit these, except as complete defenses and in complete bar to a recovery by plaintiff. The assignment we do not think raises the issue that the answer undenied was a bar to a recovery ; that is, under the pleadings alone that defendant was entitled to a judgment. The assignment is that under the defense pleaded, the evidence introduced, and the verdict of the jury thereon, the court erred in rendering judgment for the plaintiff. We do not think the first proposition germane to the assignment. Appellant evidently by this proposition seeks in this court, under article 1829, R. O. S., as amended, a judgment upon the pleadings as upon confession. This was not the ground urged in its motion for new trial and brought up to this court as an assignment. There is no statement under the proposition giving the pleadings of plaintiff. The statement contained in the proposition itself cannot be considered as a compliance with the rule requiring such statement. The appellee, in his statement answering this proposition, asserts that the original petition in several places alleges plaintiff was in the exercise of ordinary care and was doing the work in the usual way, and that he did not know of the failure of the defendant to repair the defective conditions until the very time of the injury, and that the defendant was negligent in failing to provide reasonably safe means, instrumentalities, etc.

Referring to the clause of the statute, “Any fact so pleaded by the defense that is not denied by the plaintiff shall be taken as confessed,” Judge Moursund, speaking for the Court of Civil Appeals, Fourth district, said:

“This, of course, only applies to facts not already in issue by virtue of plaintiff’s allegations. To allege in affirmative language the converse of what plaintiff has alleged does not constitute new matter which must in turn be controverted.” Railway Co. v. Pennington, 166 S. W. 464.

While the defense set up by the appellant in this case is affirmative in its nature, yet, if the plaintiff anticipated such defense in his original petition, and denied its existence, we see no good reason for requiring a repetition thereof by supplemental petition. The allegations contained in the original petition, in effect, deny the defenses set up. We believe the Court of Civil Appeals in the Pennington Case, supra, correct in the holding that:

The general rule announced by 31 Cyc. 733, “conduces to a fair trial and will prevent litigants from taking up the time of the court with experimental trials, relying upon saving themselves if things go wrong by urging that they should have judgment upon the pleadings. Therefore we hold that, if defendant was entitled to a judgment upon the pleadings, it waived its right thereto, and we give such holding as an additional reason for deciding that appellant’s first proposition is without merit.” Telegraph Co. v. Andrews, 169 S. W. 218; Railway Co. v. Tomlinson, 169 S. W. 217.

The second, third, and fourth propositions are to the effect that the jury found in favor of appellant upon contributory negligence, assumed risk, and fellow servant, and that judgment should have been rendered in its favor. The correctness of this proposition depends upon whether propositibns 5 and 6 are sound. Propositions 5 and 6 assert that the act of the Legislature known as the Workmen’s Compensation Act (chapter 179, Acts 33d Legislature) is unconstitutional, for the following reasons: (a) It is in conflict with section 35, art. 3, of the Constitution of this state, in that the subject of the act is not expressed in the title thereof, and for the reason that said act contains more than one subject; (b) it is unconstitutional and in violation of the fourteenth amendment to the Constitution of the United States, which provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws” ; (c) it violates the fourteenth amendment of the Constitution of the . United States, and section 19, art. 1, of the Constitution of the state of Texas, in that the act authorizes the taking of the property of a citizen and depriving him of his liberty without due process of law; (d) The act is contrary to public policy,- and is not within the police power of the state; (e) it is in violation and contrary to article 12, §§ 1, 2, of the Constitution of the state of Texas, which provides:

“No private corporation shall be created except by general laws. General laws shall be enacted providing for the creation of private corporations.”

The act undertakes to create by special enactment a private corporation to be known as the “Texas Employers’ Insurance Association.” The following is a copy of the title of the act and the first and second sections:

“An act relating to employers’ liability and providing for the compensation of certain employés and their representatives and beneficiaries, for personal injuries sustained in the course of employment, and for deaths resulting from such injuries, and to provide and determine in what cases compensation shall be paid, and to make the payment thereof the more certain and prompt by the creation of an insurance association to insure and guarantee such payments and of an industrial accident board for the investigation of claims and for the adjudication thereof for consenting parties, fixing the membership and powers of said board and its compensation and duties, and the method of its appointment, and the term of office of its members, and fixing also the powers, duties and liabilities of said insurance association and the extent of control over the same to be exercised by the commissioner of banking and insurance, and providing also for the insurance 'of payments of compensation to em-ployés by certain other insurance companies and organizations, and declaring an emergency.

“Be it enacted by the Legislature of the state of Texas:

Part 1.

“Section 1. In-an action to recover damages for personal injuries sustained by an employe in the course of his employment, or for the death resulting from personal injury so sustained, it shall not be a defense:
“1. That the employé was guilty of contributory negligence; but in such event the damages shall be diminished in the proportion to the amount of negligence attributable to such em-ployé, provided that no such employé who may be injured or killed shall be held to have been guilty of contributory negligence where the violation by,such employer of any statute enacted for the safety of the employés contributed to the injury or death of such employé.
“2. That the injury was caused by the negligence of a fellow employé.
“3. That the employé had assumed the risk of the injury incident to his employment; but such employer may defend in such action on the ground that the injury was caused by the willful intention of the employé to bring about the injury.
“4. Provided, however, in all such actions against an employer who is not an (a) subscriber as defined hereafter in this act, it shall be necessary to a recovery for the plaintiff to prove negligence of such employer or some agent or servant of such employer acting within the general scope of his employment.
“Sec. 2. The provisions of this act shall not apply to actions to recover damages for the personal injuries or for death resulting from personal injuries sustained by domestic servants, farm laborers, nor to the employés of any person, firm or corporation operating any railway as a common carrier, nor to laborers engaged in working for a cotton gin, nor to employés of any person, firm -or corporation having in his or their employ not more than five employés.”

Following section 2 there are some 15 other sections in part 1 of the act, and in part 2 there are some 7 sections, and in part 3 there are some 23, and in part 4 some 7 sections. The latter parts and sections than those quoted relate to the organization of the insurance company, etc., which will be unnecessary to set out in full.

“Articles of an act essentially single in subject which do not thus conceal or disguise the real purpose, are not subject to the constitutional objection,, although the ends intended to be reached through the one subject may be many.” Day Land & Cattle Co. v. State, 68 Tex. 526, 4 S. W. 865. “The purpose of the constitutional provision is merely to reasonably apprise the legislators of the contents of the bill, to the end that surprise and fraud in legislation may be prevented. We think the title in question sufficiently full to give reasonable notice to the contents of the act.” Doeppenschmidt v. I. & G. N. Ry. Co., 100 Tex. 532, 101 S. W. 1080. While it is true that the provision of the Constitution in question is mandatory, “such provisions have been liberally construed, and it has been steadily held that a title which, in substance, is a compliance with the requirement of the Constitution'is sufficient.” Gunter v. Texas Land & Mortgage Co., 82 Tex. 496, 17 S. W. 840-842. We have concluded that the subject of the act is stated in the title, and that there is not more than one subject contained therein. The ends to be reached are- more than one, but all relate to the employer’s liability and the proceedings for the compensation of certain employés, etc. The employer is liable when he is not a subscriber to the insurance association, and the act then further provides what compensation the employé may receive from the association when the employer is a member thereof. We regard the following authorities as in point on the question as to what may 'be considered under the subject and as related to the subject, and whether or not there is more than one subject named in the title. Railway Co. v. Stoker, 102 Tex. 60, 113 S. W. 3; Nalle v. City of Austin, 103 S. W. 825; Taggart v. Hillman, 42 Tex. Civ. App. 71, 93 S. W. 245; Railway Co. v. Smith, 54 Tex. 1; Stone v. Brown, 54 Tex. 341; Focke v. State (Cr. App.) 144 S. W. 267.

Subdivisions b, c, and d of proposition 6 have been fully answered by the courts of this state in various decisions. They have held a similar statute relating to the employés of railroads not in violation of the fourteenth amendment to the Constitution of the United States, and we think the reasons advanced in those cases applicable to this. Railway Co. v. Jenkins, 137 S. W. 711; Railway Co. v. Sadler, 149 S. W. 1188; Railway Co. v. Grenig, 142 S. W. 135; Railway Co. v. Matkin, 142 S. W. 604. We think the Supreme Court of the United States has answered the appellant’s proposition that the act in question is contrary to the Constitution of the United States, in that it is class legislation, and that it makes an arbitrary division of the employés, and that the act is contrary to public policy, and authorizes the taking of the property of the citizen, etc. It is held by that court that no one has a vested right in the common law. “The law itself may be changed at the will of the * * * Legislature, unles^ prevented by constitutional limitations.” If the appellant had been possessed of property created by the common law, the Legislature could not deprive it of such property by changing the law, but that is not this case. Mondou v. Railway Co., 223 U. S. 1, 32 Sup. Ct. 169, 56 L. Ed. 327, 38 L. R. A. (N. S.) 44; Aluminum v. Ramsey, 222 U. S. 251, 32 Sup. Ct. 76, 56 L. Ed. 185.

Subdivision “e” of proposition 6 asserts that the act is unconstitutional, because it violates article 12, §§ 1, 2, of the Constitution of this state. W-e shall not discuss the question of what is a general law within the meaning of the provision of the Constitution, but it will, we think, be sufficient to say that, if the sections of the act authorizing the creation and regulation of Texas Employers’ Insurance Association are unconstitutional, because not authorized under the general incorporation law of this state, the sections of the law involved in this suit are not so connected with the insurance sections as to render void the sections relating to contributory negligence, assumed risk, and fellow servant.

It is a well-recognized principle that an act may be unconstitutional, and therefore void, as to some of its provisions and valid as to others. If the insurance sections are repugnant to the Constitution and should be stricken out, yet, if that which remains of the act and which are involved in this suit are complete within themselves and capable of being executed in accordance with the legislative intent, then such parts so remaining should be held valid. Zwernemann v. Von Rosenberg, 76 Tex. 522, 13 S. W. 485; Breen v. Railway Co., 44 Tex. 302. We think the sections relating to insurance of employés may be so eliminated from the act, if they should be held repugnant to the Constitution, without impairing other sections of the act in question. We do not wish to be understood as holding that the sections relating to insurance associations are unconstitutional. We do not pass on that question at this time, for the reason that we do not think it necessary in order to hold the other portions valid. This assignment will be overruled.

Appellant presents its second and third assignments together. Assignment No. 2 is to the effect that the court erred in rendering judgment upon the motion of plaintiff for $7,200, because, under the findings by the jury, he was not entitled to a judgment in any sum. The third assignment is to the effect that the court erred in entering judgment upon the motion, because said findings were so conflicting that the plaintiff was not entitled to a judgment thereon. Appellee objects to the consideration of these assignments, because improperly grouped, and also to the consideration of the propositions and statements thereunder. We cannot say, under these assignments, that they present distinct questions. The first proposition asserts that the verdict is conflicting, and judgment should have been rendered against plaintiff and for defendant; and the second proposition that it is impossible to tell whether the jury meant for plaintiff to have nothing, or whether they meant for him to have $4,200; or whether they meant for him to have $7,-200; or whether they meant for him to have $9,200, and that it is therefore so confusing and vague that it is insufficient to support a verdict for the plaintiff for the amount of $7,200, or for any sum whatever. This will necessitate setting out the issues submitted to the jury, and their findings, which are as follows:

“Questions.

“(1) Was the belt which injured plaintiff too short at the time the injury occurred? Answer : Yes.
“[2) If you answer the last question in the affirmative, then say whether the fact that the belt was too short, if you find it was, was the proximate cause of plaintiff’s injury. Answer: Yes.
“(3) Was it the special duty of Bob Kemp to keep belts repaired and in proper condition for the purposes for which they are used? Answer : Yes.
“(4) Did Bob Kemp have his attention called to the fact, if it was a fact, that the belt was too short, if you find it was, by plaintiff prior to the time of the accident? Answer: Yes.
“(5) Did Bob Kemp fail to repair said belt? Answer: Yes, he did.
“(6) If, in answer to the last question, you should say that Bob Kemp did fail to repair said belt, then say whether or not such failure, if such you find there was, was negligence on his part. Answer: Yes.
“(7) If you say that Boh Kemp failed to repair the belt, then say whether or not such failure, if such you find there was, was the cause of the accident which injured plaintiff. Answer: It was.
“(8) It is the duty of employers to use ordinary care to furnish their employés with reasonably safe appliances for the doing of their work. Now, did said defendant company do this as regards the matter of the belt being too short, if you find it was? Answer: No.
“(0) If, in answer to the last question, you should say, ‘No,’ then say whether such failure of duty on the part of the defendant company, if such you find there was, was the proximate cause of plaintiff’s injuries. Answer: Yes.
“(10) What sum of money, if now paid, would fairly compensate plaintiff for such injuries as he received in the loss of his arm, part of his ear, the injuries, if any, to his head, neck, and right side, and left foot, and to his hearing, if any, and to his mind and memory, if any? And, in answering this question, you may take into consideration the physical and mental pain, if any, suffered by plaintiff because of his said injuries, and whether or not and to what extent his injuries are permanent, if you find they are. Answer: $7,000.00.
“(11) Was plaintiff himself guilty of contributory negligence in the manner he put on said belt at the time he got hurt? Answer: Yes.
“(12) If you say in answer to the last question that plaintiff was guilty of contributory negligence, then say whether, or not such negligence, if any, contributed to or caused the injuries of plaintiff? Answer: Contributed to the cause of injury.
“(13) Did the plaintiff assume the risk of the injuries he received? Answer: Assumed part of the risk.
“(14) Did the plaintiff actually know of the danger, if any, he was incurring at the time he got hurt, or were the dangers so open and apparent that plaintiff must have known of such danger, if any, that he was incurring, if you find he was, in adjusting the belt in the way he did ? Answer: No.
“(15) If you say that the plaintiff’s injuries were caused in part by the negligence of both plaintiff and defendant company, if any, concurring together, if you find they did, then say how much the amount named in paragraph 10 of this charge, if any amount is named, should be reasonably diminished, if you find it should by reason of plaintiff’s negligence, if you find he was negligent, taking into consideration the amount of negligence attributable to said plaintiff, if any, and diminishing such amount, if any, in proportion to such negligence of plaintiff, if any? Answer: Two-fifths.”

The jury answered the following issues requested by plaintiff and submitted by the court:

“At the request of the plaintiff, you are instructed to find from the evidence whether or not the earning capacity of the plaintiff has been decreased by reason of his injuries; and if you find that his earning capacity had been decreased thereby, you will then say to what extent plaintiff’s earning capacity has been decreased by reason of his injuries. Answer this as a separate question; don’t get it mixed up with paragraph 10 of the general charge. Answer: Decreased $5,000.”

The jury also answered the following issues submitted by the defendant:

“(1) Was the plaintiff, at the time he was injured, a fellow servant with Bob Kemp in the work in which they were engaged? Answer: Yes.
“(2) Was Bob Kemp the foreman of the Dixie cream mixer machinery at the time of the injury to plaintiff? Answer: Yes.
“(3) Did Bob Kemp, at the time of the injury to the plaintiff, have the authority to employ and discharge employés? Answer: No.
“(4) Was Bob Kemp, at the time of.the injury of the plaintiff, m charge of the Dixie cream machinery as foreman under the direction of P. M. Holland? Answer: Yes.
“(5) Did Bob Kemp, at the time of plaintiff’s injury, direct the plaintiff how to perform the service he was performing at such time? Answer: No.”

We think the answer of the jury to the fifteenth issue, to the effect that appellee’s j recovery should be diminished two-fifths on account of his own negligence, gave a rule by ! which the court could ascertain the amount ' found by the jury and for which judgment should be rendered. If the act of the Thirty- ¡ Third Legislature above quoted is constitutional, which at the time of the injury was in force, the fact that appellant himself was guilty of negligence contributing to his in-i jury would not defeat a recovery, but would I diminish his damages in proportion to such j contributory negligence. The fact the laborer was injured through the negligence of a fel- ' low servant or that he had assumed the risk j is not a defense under the above act. We are inclined to believe the answers of the jury to the thirteenth and fourteenth issues do not find that appellee assumed the risk from the defective belt. While the answer to the thirteenth issue is that he assumed a part of the risk of the injuries he received, the answer to the fourteenth is that he did not know the danger he was incurring at the time he got hurt, and that the danger was not so open and apparent that he must have known of such danger in adjusting the belt. If the issue propounded had been as to his knowledge of the defect in the belt, then cei’tainly there would have been no uncertainty in the verdict. We are inclined to think the answer to the preceding issues, especially the eighth and ninth, to the effect that appellant was negligent in furnishing the belt, and that such defective belt and negligence on the part of appellant was the proximate cause of the injury, renders the verdict reasonably certain. If the belt was too short, and this was the proximate cause of the injury, its then condition was the danger which appellee did not know, and the danger therefrom was not then open and obvious to him, and if ap-pellee did not so know or was not charged with such knowledge, he did not assume the risk. The jury clearly found that the damages sustained by appellee should be diminished two-fifths, chargeable to appellee’s negligence, which would, under the law, diminish his recovery to the amount for which the judgment should be rendered. We think the verdict sufficiently certain to sustain a judgment.

The fourth and fifth assignments are presented together. The fourth complains at the action of the court in granting appellee’s motion to render judgment for $7,200, because excessive, and because the finding of the jury authorized a judgment only for the sum of $4,200.

The fifth assignment complains at the action of the court in refusing appellant’s motion for judgment only for the sum of $4,200, because there were no pleadings or evidence to suxjport a sum in addition to that amount. These assignments are objected to because grouped. We think they relate to the same question, and may be considered together. The first proposition is largely in the nature of a statement, but is perhaps sufficiently explicit to present the issue. Wte think the judgment should have been rendered for $4,-200, under the findings of the jury, and the assignment in that respect will be sustained, for the reasons hereinafter presented under assignments 8, 9, and 10.

The second proposition is to the effect that the findings of the jury in answer to the issue requested by the plaintiff was not signed by the jury. This proposition is not germane to either of the above assignments. The third proposition is to the effect that, since appellant pleaded contributory negligence, assumed risk, and fellow servant, and there was no denial by supplemental petition, that this plea should have been taken as confessed. This proposition is not relevant or included in either of the assignments.

The sixth and seventh assignments are not propositions within themselves, and are followed by no propositions, but refer to propositions under the second assignment. The propositions there considered are not in any wise germane to these assignments.

The eighth, ninth, and tenth assignments are presented together. Appellee urges the same objections to the manner of briefing them. The eighth assignment is, in effect, that plaintiff failed to plead as an element of damages by reason of diminished earning capacity, and, there being no evidence thereon, plaintiff was not entitled to recover any sum therefor, and that the judgment is therefore excessive in the sum of $3,000.

The ninth assignment is substantially that the judgment should not have been rendered for $7,200, but, if for anything, not to exceed $4,200, because the pleadings, evidence, and the findings of the jury did not authorize the same, and that the judgment is excessive in the sum of $3,000, and is a double recovery against defendant.

The tenth assignment is because the findings of the jury show upon their face that they did not intend to find for plaintiff in any sum to exceed $4,200, and that the judgment for the sum of $7,200 is $3,000 in excess of what the jury expected and intended to return in favor of the plaintiff. We believe the questions presented by the assignments are so related that they may be considered under one assignment. The first and second propositions are not in accordance with the rules.

The third proposition is to the effect that, when the jury awarded damages for all physical injuries sustained by him, taking into consideration the permanency thereof, such damages would include any diminished capacity to earn money by reason of such injuries. It will be observed that the tenth issue submitted for the finding of the jury is:

“What sum of money, if now paid, would compensate plaintiff for such injuries as he received in the loss of his arm, etc? And in'answering this question you may take, into consideration the physical and mental pain, if any, suffered by plaintiff because of his injuries, and whether or not, and to what extent, the injuries are permanent, if you find they are.”

The jury answered: “$7,000.”

At the request of the plaintiff the court submitted the issues:

“You are instructed to find from the evidence whether or not the earning capacity of the plaintiff has been decreased by reason of his injuries, and if you find, etc., you will state to what extent, etc. Answer this as a separate question ; don’t get it mixed up with paragraph 10 of the general charge.”

The jury answered: “Decreased $5,000.”

We are inclined to believe the tenth instruction included a consideration of diminished capacity to earn money in the future. “The decreased capacity to labor and earn money would necessarily be a result of the impairment of physical and mental health.” Railway Co. v. Butcher, 98 Tex. 462, 84 S. W. 1052; Railway Co. v. Smith, 63 S. W. 1064-1067; Ry. Co. v. Bock, 88 Tex. 310, 31 S. W. 500.

We do not think the precautionary admonition, added to plaintiff’s requested issue, sufficient to direct a finding on the damages sustained for permanent physical and mental injuries and diminished capacity to labor and earn money as constituting one item, but, in fact, it is a direction to consider them separately. This would reverse the case, if the appellant had excepted to the charge on the ground that it authorized a double recovery. The exceptions presented to this charge in the trial court are: “It is not the law; there is no pleading and no evidence to support the issue.” This is not an objection that.it permitted a double recovery. It has long been the rule that objections to evidence which were not made in the trial court will be considered as waived. Hill v. Baylor, 23 Tex. 261; Pool v. Wedemeyer, 56 Tex. 287-309. We see no good reason why the same rule should not be applied to exceptions taken to the court’s charge. If the exception was not made in the trial court that the charge authorized a double recovery, it should be regarded as waived under the law as amended, with reference to charges, by the Thirty-Third Legislature (chapter 59, p. 113), and the previous holdings of this uourt. We think the appellant should be held to have waived the exception here presented; but, as above suggested, under assignments 4 and 3, the judgment should have been rendered for three-fifths of $7,000. This amount, under issues 10 and 15, clearly include the issue requested by the plaintiff, appellee herein. The findings of the jury are not inconsistent with each other. One included dimiaished capacity to earn money by reason of physical, mental, and permanent injury, and also physical and mental suffering, which the jury found had damaged appellee in the sum of $7,000. Under the issue requested by appellee, they found his damage by reason of diminished capacity alone to be $5,000. By this method the jury itemized the damages.

The fourth proposition is substantially that the appellee did not plead his earning capacity, and there was no evidence thereof, and that the findings of the jury thereon are without pleading or evidence. The physical and mental condition of appellee, as alleged and proven, would necessarily result in the loss of his earning capacity, as above stated by us. The diminished capacity of appellee to labor or earn money may be inferred from the nature and character of the injuries sustained, and may be ascertained by the jury from their common knowledge of men. Railway Co. v. Yance, 41 S. W. 167-170.

The eleventh assignment will be overruled. While we do not approve of the form of the judgment, it is, we think, a final judgment, and will sustain an execution for the amount adjudged.

The twelfth, thirteenth, and fourteenth assignments complain at the action of the court in admitting the testimony of Mrs. Ellis Kennedy, J. A. Presley, and Silas Wood, as to certain evidence relative to the appel-lee’s mind after the injury. The propositions presented are that the statements of the condition of the appellee’s mind was the opinion of nonexpert witnesses, and no sufficient facts were given upon which to base the same, etc. Mrs. Kennedy testified:

“Since his injury I have noticed a changed condition of his ability to remember things and talk connectedly. He cannot hold a conversation very long. He will talk, and then will go off on something else. I noticed that in his conversation on the first Sunday he came home.”

Mrs. Kennedy is the mother of appellee. This we do not think an opinion as to the mental condition of appellee. It is simply a statement of facts observed by her.

Presley, with whom appellee had worked before the injury, testified:

“I have had more talk with him since the injury than I ever did before, but I never noticed his talk scatter before. It don’t seem that he can stay on a conversation now very long, and I didn’t notice anything of the kind before. If he was that way before, I did not notice it.”

Silas Wood testified to his acquaintance with appellee before and after the injury, and testified, in substance, that appellee was not in the same condition of mind or had the same mind he had before the injury. The court sustained the objection of appellant to this evidence, but, upon assurance of counsel to follow it up, the court permitted the examination to proceed. The witness then stated:

“I notice in talking with him since that accident that he seems to forget things that he states, and recites them in a way I never noticed before. _ Before that time his conversation was methodical, and now he will talk along and change off on something else, and maybe drop back and reverse what he has been saying.”

We do not understand from this testimony that the witnesses were testifying that, in their opinion, the mind of the appellee was weak, or that he was mentally unbalanced, or that he was insane, but they simply related the facts which had fallen under their observation. The jury from these facts were left to draw their own conclusions. The assignments are overruled.

The fifteenth, sixteenth, seventeenth, eighteenth, nineteenth, and twentieth assignments are grouped and relate to the testimony of several witnesses, the substance of which may be stated to be that they testified as to the length of the elevator shaft and how it was placed and braced in the elevator, and that, if the belt was too short and too tight, it would spring the shaft so as to throw the belt off of the pulley. The appellant objected to this testimony on the ground that there were no allegations in the petition that the brace to the pulley or shaft was the cause of the accident, and that it was irrelevant, immaterial, and prejudicial to the defendant’s rights. The plaintiff in his original petition, after describing the length of the elevator shaft, the position of the pulleys thereon, and its position with reference to another shaft in the same building, allege generally that his injuries were caused by the carelessness and negligence of the defendant in failing to provide a reasonably safe place to work and reasonably safe appliances with which to do the work, in this: That the belt which he was attempting to put on the pulley at the time of his injuries was from iy2 to 2 inches too short, and alleging negligence on the part of appellant in failing to furnish a proper belt, etc. We do not understand the evidence in this case to have been offered or admitted for the purpose of proving negligence on the part of appellant with reference to bracing the elevator shaft or with reference to the manner in which the pulley was placed on the shaft. The purpose appears to have been to show that the belt, if too short, or too tight, would spring the shaft, and cause the pulley thereon to turn in such way that it would throw the belt therefrom. If the appellee had sought to prove negligence on the ground of failure to properly brace the shaft or pulleys, and sought to show negligence on the part of the appellant in that particular, we do not think the testimony under the pleadings would be admissible; but, for the purpose of showing that the belt, if too short, would be thrown from the pulley, we think the facts which showed the condition and the probability of such an occurrence were admissible; but, if not admissible under the pleadings in this case, there was no error or injury resulting therefrom, for the reason that the court only submitted as to negligence whether or not the belt was too short, and therefore in a defective condition. Where testimony is irrelevant and immaterial, or not supported by the pleadings, if not submitted by the court’s charge, as a rule, it will not work a reversal of the case. Higby v. Kirksey, 163 S. W. 315. The above assignments are overruled.

The twenty-first and twenty-second assignments of error are grouped, and relate to the admission of testimony by the appellee that he was injured in the small of his back, and the testimony of J. A. Presley that appellee had an injury on the back of his head. The testimony of the appellee was expressly withdrawn from the jury. Presley had stated when the plaintiff was taken to the sanitarium he had seen wounds on the plaintiff, and among other wounds which he described was one on the back of his head. Ordinarily, a party cannot prove injuries other than those alleged in the petition; but, under the facts alleged in this case as to the manner in which the injury occurred and the injuries to the right side, head, etc., we are unable to see any injury that did or could have resulted to the appellant by reason of this statement of Presley; and the statement of the appellee himself, having been withdrawn from the consideration of the jury, would certainly not prejudice appellant. We overrule this assignment.

The twenty-third assignment is to the testimony of the appellee, Tolbert, where he stated: “We changed our places, and we got in the best position we could at the places to put on the belt. I used the best care to my knowledge that I could.” The objection was that this was a conclusion of the witness as to whether'or not they got in the best position they could, and whether the plaintiff used the best care to his knowledge. We see no injury to appellant by the admission of this testimony. The jury found that the appellee was guilty of contributory negligence, and evidenced the fact that they did not consider this statement of the appellee that he used his best care, etc. This assignment is overruled.

The twenty-fourth assignment of error is to the effect that the court erred in permitting the exhibition to the jury of the shoes which he had on at the time of the injury. The evidence shows the shoes were in the same condition at the time they were exhibited that they were in shortly after the injury. We think the testimony was admissible under the circumstances of this case, and that no injury resulted.

The twenty-fifth and twenty-sixth assignments of error relate to the wages that the appellee received and his knowledge or ability to fire on an engine, etc. The objections are that the pleadings did not authorize the introduction of such testimony. We overrule the assignment, and hold the testimony was admissible.

We think no error is shown by the twenty-seventh assignment of error, with reference to what the appellee testified in regard to signing a certain statement procured from him shortly after the accident by the appellant company; and, in explaining why he signed the instrument, he stated he did not think the defendant company would have him sign anything that was not at all right, etc. This testimony was possibly admissible to explain the intent that he had at the time of signing the instrument in question. We think there is no serious injury done ap-pellee or reversible error in admitting it.

By the twenty-eighth assignment objection was made to the testimony of Bob Kemp and other witnesses, which, in effect, is that efforts had been made after the accident in question to put on the same belt on the same pulley, and that it came off. The objection urged by appellant as to what might have been done since the injury is irrelevant and immaterial and prejudicial to the rights of the appellant, and that there is no proper predicate laid. We think, under the circumstances, the testimony was admissible as bearing upon the question of appellant’s negligence in regard to the belt; it may be slight, but it is admissible, we think, under the circumstances. Railway Co. v. Donaldson, 73 Tex. 124, 11 S. W. 163; Railway Co. v. Woolridge, 63 S. W. 905.

In considering this case we have been compelled, over appellee’s objections to the brief, to investigate the authorities with reference to briefing, which has taken more time than upon the main questions at issue on the appeal. The brief is subject to the criticisms offered in many instances, and we believe we would have been justified in disregarding some of the assignments, propositions, and statements, but we concluded it would be better to consider the case upon the brief presented. If counsel, in briefing their cases, would observe and follow the rules more closely, they would save the court time and trouble in investigating various objections that aré urged to briefs improperly prepared under the rules.

In this case the judgment of the lower court will be reformed, and rendered for the sum of $4,200, and, as reformed, the judgment will be affirmed, at the cost of appel-lee.
      •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes


source: Caselaw Access Project

author: HENDRICKS, J.

license: Public Domain

text:
    PECOS & N. T. RY. CO. et al. v. GRUNDY et al.
    (No. 678.)
    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 21, 1914.
    Remittitur filed Nov. 24, 1914.)
    1. Trial (§ 279) —Instbuctions — Objections.
    The objection, “failing to charge * * * correctly the measure of damages * * * the measure as to difference in market and actual value,” to the court’s charge that, if it be found part of the goods were damaged as alleged, the jury will find such damages as were incurred through the carrier’s negligence, is insufficient to show the trial court wherein was the error as required by Rev. St. 1911, art. 1971, as amended by Acts 33d Leg. c. 59 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1971).
    [Ed. Note. — Eor other cases, see Trial, Cent. Dig. § 690; Dec. Dig. § 279.]
    2. Damages (§ 105) —Loss of Secondhand Goods — Evidence.
    The owner of clothing and household goods, which had been used by him, and so were secondhand, may, in the action for their loss by a carrier, testify to their value, the loss to him in. money, and not what they would sell for in any market being the measure of damages.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. •§§ 266-271; Dec. Dig. § 105.]
    3. Evidence (§ 501) — Value—Qualification of Witness.
    To qualify the owner to testify to the value of his wearing apparel and household goods, lost by defendant, he need not state their cost and the period of their use and their condition.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2292-2305; Dec. Dig. § 501.]
    4. Carriers (§ 105) — Delay in Transportation-Special Damages.
    The carrier not 'being apprised that any such special damages would ensue from delay in transporting a car of household goods, recovery cannot be had for board bills and room rent paid by the owner while awaiting their arrival.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 451-458; Dee. Dig. § 105.]
    5. Carriers (§ 105) — Delay of Transportation-Damages.
    The measure of damages for delay of a carrier in transporting household goods is the reasonable value of their use to the owner during the delay.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 451-458; Dec. Dig. § 105.]
    Appeal from Randall County Court; C. E. Coss, Judge.
    Action by J. A. Grundy and another against the Pecos & Northern Texas Railway Company and another. Judgment for plaintiffs, and defendants appeal.
    Affirmed on condition of remittitur.
    Terry, Cavin & Mills, of Galveston, N. H. Lassiter, of Ft. Worth, and Madden, Trulove & Kimbrough and H. C. Pipkin, all of Amarillo, for appellants. B. Frank Buie and Rector L. Lester, both of Canyon, for ap-pellees.

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

   HENDRICKS, J.

The appellees, J. A. Grundy and L. T. Da Vault, sued the Pecos & Northern Texas Railway Company and the Chicago, Rock Island & Gulf Railway Company, in the county court of Randall county, Tex., for damages with reference to a shipment of a car of household goods from McLean, Tex., to Canyon, Tex., claiming damages for the loss of some of the goods and for difference in value as to others, as well as specific damages for the detention of the use of the goods on account of unreasonable delay. Upon a trial to a jury the appellees recovered a verdict for $375.

The appellants complain of the fifth paragraph of the court’s charge to the jury, which was to the effect that, if the jury found that a “part of the goods were damaged, as alleged by plaintiffs, * * * ” the jury

were to find such damages as they may find were incurred on account of the negligence of the carrier. The objection to this charge was that the court erred “in failing to charge the jury correctly the measure of the plaintiffs’ damage by reason of the alleged damage to said goods, the measure as to difference in market and actual value.”

We take it that the purpose of the act of the Thirty-Third Legislature with reference to the presentation of objections to the court’s charge before the same is read to the jury (article 1971) is to correct the court’s error — to lead the court to the truth of the law — -and places the burden upon the party making the objections to show the court wherein the error exists. Appellants say:

“It is true that their abjection * * * did not particularly specify that the measure of damages to certain of the goods was the difference in the actual value of the goods ‘just prior to and just subsequent to the alleged damage’; but * * * submit that by said objection * * * they did suggest to the court the correct basis of plaintiffs’ measure of damages.”

Appellants did not submit any special charge embodying a correct rule as to the measure of damages. In cases of this peculiar character, under our interpretation of the statute, the same having been passed for the purpose of preventing reversals, unless the court is informed of his error, in the condition of this objection, and the record, it was not error to overrule the same. See Memphis Cotton Oil'Co. v. Tolbert, 171 S. W. 309, decided November 7, 1914, not yet officially reported.

Under the fifth assignment of error the bill of exception shows that Da Vault, one of the owners of a part of the property, testified as to the worth and value of a part of the personal property, consisting of clothing, culinary articles, household paraphernalia, etc., stating the same item by item. The defendants objected to the witness “stating what said items were worth, because said questions and answers called for the opinion and conclusion of the witness as to said values, and the witness was not properly qualified to state them, and that this was not the proper method of proving the value of said articles, or the proper measure of damages for the loss thereof” — quoting from said bill of exceptions.

The plaintiff! and witness was testifying to the value of the goods which had been lost by the carriers. The measure of damages referable to the destruction or loss of this character of property, as announced by Chief Justice Willie, in the leading case of Railway Co. v. Nicholson, 61 Tex. 550, is commented upon as follows:

“ * * * The lost articles seem to be of such a. character — namely, secondhand clothing, books, and table furniture which had been used by the plaintiff — that they, could not be paid to have to him a value at one place different from what they possessed at another. He could hardly have supplied himself in the market with goods in the same condition and so exactly suited to his purposes as were those of which he had been deprived. As compensation for the actual'loss is the fundamental principle upon which this measure of damage rests, it would seem that the value of such goods to their owner would furnish the proper rule upon which he should recover; not any fanciful price that he might for special reasons place upon them, nor, on the other hand, the amount for which he could sell them to others, but the actual loss in money he would sustain by being deprived of articles so specially adapted to the use of himself and his family.”

The Supreme Court, in the case of Missouri Pacific Railway Co. v. Colquitt, 9 S. W. 604 (not in State Reports), speaking through Chief Justice Stdyton, reiterated and reaffirmed the same rule. If the value to the owner is the true rule, without any fanciful consideration entering into same, and from which criterion we are to deduce the rule of actual value, and not market value, we do not believe that the court committed positive error in permitting the testimony. In reading the decisions further with reference to the particular character of goods, we find that, though there may.be a “secondhand” market for secondhand goods at destination, the secondhand price is so depreciated, compared to the actual or intrinsic value to the owner, that it is not just compensation for the actual loss; hence a “secondhand market” is an unjust rule. See P. & N. T. Ry. v. Porter, 156 S. W. 267.

The Supreme Court of New York, in the case of Fairfax v. Railway, 73 N. Y. 167, 29 Am. Rep. 119, íd speaking of wearing apparel, said:

“It would sell but for little, if you put into market to be sold for secondhand clothing, and it would be a wholly inadequate and unjust rule of compensation to give plaintiff, in such a case, the value of the clothing thus ascertained. The rule must be the value of the clothing for use by the plaintiff.”

The Supreme Court of Kentucky, following our courts, also quoting from the New York case, supra, further says:

“No two sets of secondhand effects of this kind are the same in condition; and therefore no standard of market value exists.” Railway Co. v. Miller, 162 S. W. 76.

Wigmore (volume 1, § 716), in speaking upon kindred subjects and with reference to personal services principally, says:

“Here the general test that any one familiar with the values in question may testify is liberally applied, and with few attempts to lay down detailed minor tests.”

And, continuing, said:

“The owner of an article [italics his], whether he is generally familiar with such values or not, ought certainly to be allowed to estimate its worth; the weight of his testimony (which often would be trifling) may be left to the jury; and courts have usually made no objection to this policy.”

See note 2 and the numerous cases cited by the author. The author is also commenting upon household goods.

Chamberlayne, in his work on Evidence, (volume 3, § 2127), says:

“ * . * * An ordinary observer may properly estimate the value of familiar articles of personal property. So, generally, a designation may properly cover household furniture of any ordin'ary description, new or secondhand, * * * wearing apparel and the like. It would probably include stable equipment, such as carriages, horses, or barn fixtures.”

In reading the numerous authorities and copious annotations in the notes relevant to the general text of the writers mentioned some of the authorities bear out the rule indicated and some of feeble importance sustaining the particular principle. It is necessarily true, as elements entering into the consideration affecting the value to the owner, that the cost of the articles, the period of their use, and their condition, with other pertinent data, as would enable the jury to arrive at a fair valuation, is important testimony; hut we are unable to find any well-considered case, as to the peculiar property involved here, that the owner of the goods, as a witness, is required to state the elements mentioned as a precedent qualification to testify to the value. These goods were lost by the carrier and no witness produced by it as to the value of the property; neither does the record show any cross-examination by defendants of the witness attempting to ascertain the cost of said articles, the extent of their use, the kind and character- of the same, or as to the condition of the goods at any time, but rely solely upon the general objections enumerated in the bill. If the value in this instance is at all fanciful, or if the ingredients of cost, the extent of the use of the property, the condition of same at the time of the loss would have indicated to the jury that the value placed upon the same by the owner was improper, we believe, in this character of ease, it is the duty of the defendants to elicit it. If neither market value, nor secondhand value, nor the price for which he could sell the goods to others is a criterion for the compensation to the owner, but the value to him is the standard, from this underlying principle it seems to us that the owner of the goods could testify to the value, weak as it may be.

The case of Seyfarth v. Railway Co., 52 Mo. 450, involved the testimony of husband and wife as to the value of goods of a kindred character, as in this record, and the Supreme Court of Missouri said:

“The subject of inquiry was not one to which the doctrine in reference to experts applied; and it cannot be questioned that the opinion of this witness as to the value of the articles was clearly admissible under the circumstances. The evidence being competent, the plaintiff was not obliged to restrict the examination to. the value of each article, and in that way arrive at the total value; nor was it incumbent on him to show the process by which the conclusion of the witness was reached.”

The Supreme Court of Nebraska said, in the cause of Western Home Insurance Co. v. Richardson, 40 Neb. 10, 58 N. W. 600:

“ * * * We think it was competent for the witness (in this instance the owner of the goods) to state the value of the stock in the store. Such evidence was not the statement of a conclusion, but of a fact. If the defendant desired, he could, on cross-examination, have interrogated the witness as to the value of the different articles and kind of goods.”

The Supreme' Court of Michigan, in the case of Erickson v. Drazkowski, 94 Mich. 551, 54 N. W. 283, said:

“Plaintiff and her husband testified to the value of the property taken, but it is insisted that their competency to testify upon the question of value did not appear. The articles seized were such as housekeepers are accustomed to buy, and householders must be presumed to have such knowledge upon the subject as to render them competent to testify as to the value of such articles.”

To the same effect, in practically the same language, is the case of Tubbs v. Garrison, by the Supreme Court of Iowa, 68 Iowa, 44, 25 N. W. 923. We believe we could extend the authorities on this question unnecessarily, and our elaboration of the question is induced by the serious insistence of the appellants, and the reference by them to the case of Railway Co. v. Giles, 126 S. W. 282, announced by the Court of Civil Appeals of the San Antonio District, and the case of St. Louis & Southwestern Railway Co. of Texas v. Benjamin, 161 S. W. 379, by the Dallas Court of Civil Appeals, on the same question, and contended by appellants, as announcing the contrary doctrine. Whatever the effect of those decisions, we believe the foregoing rule, is the correct rule, and consequently overrule the assignment. We likewise overrule appellants’ companion assignment complaining of the admission of the ¡testimony delivered by the wife with reference to the value of certain enumerated articles along the same line.

In this case both appellees, as owners of the car of goods, recovered the sum of $64.-75 — at least we have to presume such a recovery — as items claimed to have' been paid by them for board bills and room rent on account of the alleged unreasonable delay in the shipment of said goods to destination. (Objected to by the defendants, both to the pleading setting up such damages, and to the testimony proving the same.) We disagree with appellees that the character of damages pleaded and recovered by them is consequential, necessarily resulting from the injury, and agree with appellants that they are in the nature of special damages, to be properly alleged by setting up the special circumstances, and as having brought to the attention of the carriers at the time the contract of shipment was made. This record is silent that the carriers knew, or were apprised of any circumstances, either by the pleading or the evidence, that the special damages would ensue from a nonperformance. The mere making of a contract with the carriers to ship a car of household goods, we do not believe it could be said, would induce the expectation of the carrier to foresee that the shippers, without any further knowledge, would be required to rent rooms and pay hotel bills as a necessary consequence of the delay. The familiar rule measuring the damages for unreasonable delay as to the shipment of articles of this character, is the reasonable value of the use of the property to the plaintiff during the time of the delay. M., K. & T. Ry. Co. of Texas v. Clifton, 80 S. W. 386, 387; Gulf, Colorado & Santa Fé Ry. Co. v. Vancil, 2 Tex. Civ. App. 427, 21 S. W. 303; Texas & Pacific Ry. Co. v. Douglas, 30 S. W. 488; Hutchinson on Carriers (3d Ed.) vol. 3, § 1363. In the Douglas Case, supra, it seems that the trial court permitted plaintiff to show the purchase by her of clothing for herself and child, and the cost of laundry of clothing while waiting for the delivery of the trunk; and Justice Rainey said, after applying the ordinary measure of damages: “Such expenses are too remote to enter into the measure of damages, in such a case.” The record here does not indicate that the carrier even knew that the appellees were married. Appellants’ assignments on this question are sustained, and the elements of damages as indicated should not have been submitted to the jury. On that account this cause is reversed and remanded, with the right extended to appellee to file a remittitur within ten days for the sum of $65.30, which, if done, the cause will be affirmed, but, if not done within that time, the whole cause will be remanded, and it is so ordered. The costs are to be taxed against appellees in either event.

There are no other assignments deserving consideration, except to say that the charge of the court wherein the expression “reasonable value,” instead of “actual value,” is used, referable to the measure of damages, in the condition of this record, could not have misled the jury.

Note. — Remittitur of $65.30 filed by appellees November 24, 1914.


author: FLY, C. J.

text:
    GRAYSON v. GRAND TEMPLE AND TABERNACLE IN STATE OE TEXAS OE KNIGHTS AND DAUGHTERS OE TABOR OF THE INTERNATIONAL ORDER OE TWELVE.
    (No. 5359.)
    (Court of Civil Appeals of Texas. San Antonio.
    Dec. 5, 1914.)
    1. Insurance (§ 750)—Mutual Benefit Insurance-Statutes.
    Under Rev. St. 1911, art. '4834, providing that every certificate issued by a fraternal benefit association shall constitute the contract between the association and the member, no recovery of a death benefit can be had where the member was in default in payment of his endowment dues, and the benefit certificate recited that unless he was in good standing, and all payments and assessments had been made, the beneficiary should not be entitled to the benefit.
    [Ed. Note.—For other cases, see Insurance, Cent. Dig. §§ 1895/1896, 1903; Dec. Dig. § 750.]
    2. Insurance (§ 697)—Fraternal Benefit Insurance—Waiver of Provisions.
    Under Rev. St. 1911, art. 4847, declaring that a local branch of a fraternal association cannot waive any provisions of the laws and constitution of the association, the association cannot be estopped by the conduct of a local body.
    [Ed. Note.—For other cases, see Insurance, Cent. Dig. § 1838; Dec. Dig. § 697.]
    3. Beneficial Associations (§ 18)—Insur-ance— Benefits.
    Where the member of a fraternal association had paid burial taxes, although he was in arrears to the local society for two months’ dues, and also in arrears to the general society for endowment dues, his beneficiary is entitled to the funeral benefit; the member not having been notified of his lapse and being in good standing with the local lodge, regardless of his standing with the general society.
    [Ed. Note.—For other cases, see Beneficial Associations, Cent. Dig. §§ 41-50; Dec. Dig. 18.]
    Appeal from Bexar County Court for Civil Cases; John H. Clark, Judge.
    Action by L. E. Grayson against the Grand Temple and Tabernacle in the State of Texas of the Knights and Daughters of Tabor of the International Order of Twelve. From a judgment for defendant, plaintiff appeals. Reversed and rendered.
    T. H. Ridgeway, of San Antonio, for appellant. Carlos Bee and C. C. Todd, both of San Antonio, 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.

This suit was instituted by appellant for 8300, insurance on the life of her husband, William Grayson, deceased, and $75, a funeral benefit. The cause was submitted to a jury on special issues, and upon their answers judgment was rendered for ap-pellee.

Appellee is a fraternal benefit society, and William Grayson was a member thereof when he was killed in the boiler explosion in the roundhouse of the Galveston, Harrisburg & San Antonio Railway Company at San Antonio on March 18, 1912. He had a life certificate in said society for $300, but, by reason of a failure to pay certain sums required by the constitution and by-laws, he was not in good standing or, as the members put the matter, he was “unfinancial,” and his surviving wife was not entitled to receive the $300 benefit. The endowment tax had not been paid by Grayson for January, February, and March, 1912. By the terms of the benefit certificate, the beneficiary was not entitled to the $300 at his death, unless he was “in good standing in his * * * temple, * * * as provided for in the constitution, with the monthly dues and assessments paid in at the time of his * * * death, as the record of the Grand Temple and Tabernacle will sustain the fact.” William Gray-son had not paid the monthly dues and assessments, but died leaving them unpaid, as found by the jury. Under the laws of the society, “when the endowment tax of a Sir Knight or Daughter of Tabor fails to reach the Secretary of the Endowment Board by the twentieth day in the first month in each quarter, said Knight or Daughter of Tabor stands unfinancial with the Endowment Board of Grand Curators until the same is paid and reaches the Endowment Secretary’s office.”

It did not require the report of the secretary of the local society as to the delinquency of Grayson, but the mere fact that the endowment tax did not reach the secretary of the endowment board was sufficient to put him on the delinquent list. His membership in the local society may not have been affected by his delinquency, but his interest in the endowment fund was affected. It is provided by law that every certificate issued by a fraternal benefit association “shall constitute the contract between the association and the member.” Rev. Stats, art. 4834. That contract not only provided that Gray-son must be in good standing, but the monthly dues and assessments must be paid in at the time of his death.

There could be no waiver of any of the provisions of the laws and constitution of the association by the local body, because it is expressly provided in the statutes that no such waiver can be made. Rev. Stats, art. 4847. There could therefore be no question of estoppel, even if it had been alleged and proved, which it was not.

The burial tax had been paid by William Grayson and, if he was in arrears for two months’ dues, he had not received the 30 days’ notice required. He was in good standing, as far as the local society was concerned, . 'although behind on the endowment fund. The uncontroverted testimony showed that Grayson was not suspended or expelled, but was in good standing, so far as the local society was concerned. The jury had no testimony upon which to find that he was not in good standing, if such was their intention. The question embodied two matters, that of

good standing and that of payment of all dues and assessments, and the answer was-in the negative without specifying the subject as to which the answer was given. He had failed to pay some dues and one endowment assessment, but had not been suspended, and consequently was in good standing in his local temple. His widow is entitled, under the laws of the society and the evidence, to the $75 burial expenses.

The judgment will he reversed, and judgment here rendered that appellant recover of appellee the sum of $75, less the dues to the local society for February and March, 1912, and all costs of this and the lower court.


author: CARL, J.

text:
    GRAND TEMPLE AND TABERNACLE IN THE STATE OF TEXAS OF THE KNIGHTS AND DAUGHTERS OF TABOR OF THE INTERNATIONAL ORDER OF TWELVE v. JOHNSON.
    (No. 5343.)

    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 18, 1914.
    Rehearing Denied Dec. 16, 1914.
    Beneficial Associations (§ 14) — Torts of Members — Liability.
    The officers of a local lodge of a fraternal beneficial insurance association are, when in the discharge of their duties in pursuance of the ritual, constitution, and by-laws of the order, agents of the order, and where, in discharging the duties in initiating a member into a local lodge, officers negligently injure the member while using an appliance required by the ritual, the order is liable.
    [Ed. Note. — For other cases, see Beneficial Associations, Cent. Dig. §§ 27-31; Dec. Dig. § 14.]
    Appeal from District Court, Bexar County; Hon. R. B. Minor, Judge.
    Action by Smith Johnson against the Grand Temple and Tabernacle in the State of Texas of the Knights and Daughters of Tabor of the International Order of Twelve. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    See, also, 131 S. W. 1195, 156 S. W. 532.
    Carlos Bee and C. C. Todd, both of San Antonio, for appellant. T. H. Ridgeway and John Sehorn, both of San Antonio, for ap-pellee.

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

       writ of error pending in Supreme Court.

   CARL, J.

Appellee originally sued the appellant, the Grand Temple and Tabernacle in the State of Texas of the Knights and Daughters of Tabor, and the International Order of Twelve Knights and Daughters of Tabor, with which the first named defendant was alleged to be affiliated. In the fourth amended original petition the International Order of Twelve, etc., was dismissed from the suit, and the cause proceeded to judgment against the Grand Temple in Texas, etc., in the sum of $12,000 in favor of Johnson, the appellee. From that judgment this appeal is prosecuted.

This cause has been before this court twice before, and it will not be necessary here to do more than refer to Grand Temple, etc., v. Smith Johnson, 135 S. W. 173, for a full and complete statement of the case. Anything which may not be covered by that statement will appear in the course of this opinion. The various assignments of error briefed by appellant may be summarized as raising three propositions, viz.: (a) Was the guide or guard who negligently permitted his sword to get between the legs of appellee and trip him the agent of appellant? And (b) was the guide or guard acting within the scope of his authority and in the furtherance of appellant’s business at the time appellee was injured? (c) Lastly, is the judgment excessive?

This order is a branch-of the “International Order of Twelve Knights and Daughters of Tabor,” which parent order is chartered under the laws of Missouri. It was shown in evidence that this parent order issues and promulgates what is known as “general laws” and the ritual. The ritualistic work is uniform in all branches of the parent order, and it prescribes the regalia and uniforms. This parent order requires the Grand Temples of the various states to incorporate under the laws of the state where located, as appellant did in this case, and also issues the quarterly pass. Under the head of “Powers and Authority,” article II, sections 1, 2, 3, and 5, page 91, of the General Laws of the parent order, which controls appellant, the Grand Temples in the states are given full power and authority in the state of all temples, tabernacles, palatiums, and tents. The Grand Temple and Tabernacle in the state has authority to enact laws and rules (not in conflict with the parent order), and to grant charters to subordinate lodges, and suspend the same. Generally, the Grand Temple is supreme in the state, and all subordinate temples, such as the Lone Star Temple, No. 143, at San Antonio, where appellee was injured, derive their rights, powers, and privileges from the state Grand Temple. It grants the local charters, and its control and supervision are retained and jealously guarded in the laws. The head officer of the Grand Temple, Chief Grand Mentor (who happened to be C. E. W. Day in this case), has power to suspend a temple whenever he may think it necessary. He can suspend a Chief Mentor, such as Banks was, who was at the head of Lone Star Temple, No. 143; and the charter granted appellant by the state of Texas gives the Grand Temple authority to “organize and establish subordinate temples, etc., in the state of Texas.” Its constitution provides that:

“The Grand Temple and Tabernacle of Texas shall have jurisdiction and control of the work and business in accordance with the Taborian laws of all temples of the Knights of Tabor * * * within the boundaries of Texas, exclusively, subject only to the general laws of the Taborian order.”

It is made the duty of the Chief Grand Mentor to build up the order, and for that purpose he may appoint any number of deputies. This Chief Mentor, such as Banks was, who was at the head of the San Antonio (or Lone Star) Temple, under section 7, page 52, of the constitution and laws, is made responsible to the Grand Temple and Tabernacle “for the manner in which he administers the laws of the temple. * * * His decision shall be final, until reversed by the Chief Grand Mentor or the Grand Temple and Tabernacle.” It is conclusively shown that Lone Star Temple, No. 143, was granted a charter by the Grand Temple and Tabernacle on August 10, 1908, and W. G. Banks was a duly appointed Deputy Grand Mentor of the order. Day appointed him. The names of the charter members were written on the charter when it was granted, and appellee was injured while being initiated, about October 13,1908, after the local temple was organized in August.

It is the duty of the Chief Guards or Guides to assist the Chief Mentor in giving the degrees and in preserving order, etc., during business hours. As to whose duty it is to bring in candidates and escort them around, the Chief Mentor names whomsoever he chooses, and it thereupon becomes the duty of such favored member to perform that duty, the doing of which is regulated by the ritual. Banks, as Chief Mentor of Lone Star Temple, No. 143, appointed nine guides or guards to go out and bring in the candidates for initiation. The candidates were blindfolded, and were in that condition marched around the hall, to be halted on mysterious squares, called “333,” “444,” “777,” etc. Johnson had made application for membership, his money paid, and he was accepted for membership. He was being initiated, when one of the guides, a part of whose regulation regalia was a sword, negligently permitted same to get between Johnson’s legs. He was thereby tripped, and fell, causing his injuries.

The court submitted a full and fair charge to the jury, which is to be commended for its clearness, as well as fairness, and in that charge the jury was told that, if the act which caused the injury was not done while performing a duty of the lodge, but was done intentionally or wantonly, in mischief, for the purpose of having some fun, to find for the defendant.

The law of agency in this case is not different from agency in any other business or employment. And the proposition that, when the local lodge was organized, the parent order was no longer liable, because it had no voice in the selection of the officers or agents, is wholly untenable. The officers of a local lodge of a fraternal beneficiary insurance association, when in the discharge of their duties, in pursuance of the rituals, constitution, and by-laws of the order, are just as much the agents of the parent organization as is a conductor of a railway train the agent of the corporation when he gives orders to start or stop the train on its journey. Bankers’ Union of the World v. Nabors, 36 Tex. Civ. App. 38, 81 S. W. 91; Knights of Pythias v. Bridges, 15 Tex. Civ. App. 196, 39 S. W. 333; Trotter v. Grand Lodge, 132 Iowa, 513, 109 N. W. 1099, 7 L. R. A. (N. S.) 569, 11 Ann. Gas. 533, and notes; Supreme Lodge v. Withers, 177 U. S. 260, 20 Sup. Ct. 611, 44 L. Ed. 762; Jones v. Supreme Lodge, 236 Ill. 113, 86 N. E. 191, 127 Am. St. Rep. 277; Mitchell v. Leech, 69 S. C. 413, 48 S. E. 290, 66 L. R. A. 723, 104 Am. St. Rep. 811; Thompson v. Supreme Tent, 189 N. Y. 294, 82 N. E. 141, 13 L. R. A. (N. S.) 314, 121 Am. St. Rep. 874, 12 Ann. Cas. 552. Agency does not depend upon a name; it is measured by the relations of the parties and their relative duties one to the other. It is a matter of substance; not a form. Gall it by whatever name you will, but if the facts show that the relation of master and servant exists, if the one commands and gives authority, and the other acts upon and obeys that authority, then the relation of principal and agent exists.

The Grand Temple and Tabernacle of the State of Texas could only carry out the purposes of its charter by the establishment of local lodges, wherein it is provided that certain officers should govern. The parent organization in the state is fed from these local branches, and it can only draw this support and assistance by means of its local agents. This matter has been so well settled that we deem a further discussion useless. This same principle of law was well stated by Justice Ely when this same case was before this court on another occasion, 135 S. W. 175. He says:

“The law of agency in this case is the same as the law of agency in other cases, which is that the principal is liable for the tortious acts of his agent, done in the prosecution or furtherance of the business of the principal. It will not admit of discussion that the principal is liable for all acts of the agent expressly authorized, or which are the result of acts which he has expressly authorized or directed, as well as for tortious acts knowingly ratified by the principal. Where a tort is committed by the agent in the course of his employment for the .principal’s benefit, he will be liable, although he has not authorized or ratified such act, or even though he had forbidden it, * * * and the agent had disobeyed his orders or instructions.”

It is only when the agent is doing some act not in the discharge of his duty that the principal is not liable. For instance, in Railway Co. v. Currie, 100 Tex. 136, 96 S. W. 1073, 10 L. R. A. (N. S.) 367, the agent, Nich-olls, was not performing a duty required of him when he turned the colnpressed air upon Currie and injured him in such, a way that he died. He was intending to have some fun at Currie’s expense, and that was no part of his duty to the master. No matter how short a time he may so turn aside from his duties, that which he does while so turning aside from his duties is not an act for which the master is responsible.

But in this case there was no turning aside from the duty to be performed by the guides. In discharging those duties, while initiating Johnson, the negligent use of the sword, with which the rituals authorized the guide to be provided as a part of his regalia and equipment, caused the injury, and such act is attributable to the master. No insurance could have been obtained unless the candidate had been initiated, after the lodge had been organized as it was, and in performing the ceremony of initiation the officers of Lone Star Temple, No. 143, were acting in the furtherance and propagation of the Grand Temple and Tabernacle’s insurance business in Texas.

This court is not willing to subscribe to the doctrine that a secret order may provide forms and ceremonies that are, or may by the manner of executing the same become, dangerous, and then escape liability when injury results from the negligence of its agents in carrying out those ceremonies. Neither do we concede that a candidate loses his right of action by reason of the fact that in his application and obligation he may agree to be bound by the constitution and laws of the order and to conform to the forms and ceremonies of initiation; for in the very nature of things he cannot know what those things are until they are made known to him during his initiation and afterwards. There was ample testimony in this case to warrant the jury in finding, as it did, that the sabers were a part of the initiation regalia of the lodge, and that the injuries of Johnson were caused, not by some one desiring to have fun and in a mischievous spirit, but by the negligent handling of the swords by the guides in the performance of a duty to the master.

The evidence of the injury is sufficient to sustain the amount of the verdict found by the jury, and, in the light of the testimony as to the condition appellee is now in, we do not feel like disturbing the judgment.

The assignments, without naming them se-riatim, are overruled, and the judgment is in all things affirmed.