author: BUCK, J.

text:
    FIDELITY & CASUALTY INS. CO. OF NEW YORK v. MOUNTCASTLE.
    (No. 8746.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Dec. 15, 1917.
    Petition for Rehearing Withdrawn Jan. 12, 1918.)
    1. Insurance &wkey;>665(5) — Accident Insurance — Evidence—Disability.
    In a suit upon an accident policy to recover for total disability, evidence held to sustain a finding that insured suffered an injury while traveling on a train, resulting directly and exclusively in immediate, continuous, and total disability, rendering him incapable of performing duties pertaining to his occupation as a grain man.
    2. Insurance &wkey;>539(5) — Accident Insurance-Notice oe Claim — Statute.
    Rev. St. 1895, art. 3379, providing that no stipulation in any contract requiring notice of claim for damages as a condition precedent to the right to sue thereon shall be valid, unless it is reasonable, and that any stipulation requiring notice within less than 90 days shall be void, and that notice, if required, may be given to the nearest or other convenient local agent, does not mean that notice given after 90 days may not be permissible when the circumstances disclose that the delay was not unreasonable, and where the evidence did not show that the-company was injured by reason of the delay; the purpose of notice being to convey knowledge to guard against fraud, and to investigate the claim, and to prepare to contest it.
    3. Insurance <&wkey;668(14) — Accident Insurance — Notice oe Claim — Question eor Jury.
    In an action upon an accident policy for total disability, held, on the evidence, that the refusal to give a peremptory instruction for defendant on the ground of insured’s failure to give written notice -of accident within the time prescribed by the policy was proper.
    4. Insurance <&wkey;579 — Accident Insurance —Receipt—Settlement.
    Receipt by insured of $14 in payment of claim for total disability under an accident insurance policy, including doctor’s bills, etc., the amount paid being only the amount of the doctor’s bills, did not constitute a settlement in full for injuries sustained.
    5. Release <&wkey;13(2) — Validity—Consideration.
    A debtor’s payment of a liquidated amount presently due and to which he has no defense that can be urged in good faith or with color of right is not itself a sufficient consideration to sustain the creditor’s release of other liquidated claims.
    6. Insurance <&wkey;665(5) — Accident Insurance-Action on Policy — Finding as to Disability — Evidence.
    In an action upon a policy of accident insurance to recover for a total disability, evidence held to sustain a finding that insured’s injury resulted directly and independently in immediate, continuous, and total disability, preventing him from performing any work pertaining to his occupation, from the date of the accident, September 15, 1913, to February 9, 1916, notwithstanding he had for 15 months after the accident received his usual salary from his employer.
    7. Insurance c&wkey;662(l) — Accident Insurance — Notice—Evidence.
    Testimony of insured claiming total disability under an accident policy that he gave the insurer’s local agent verbal notice of the accident was admissible, though not a compliance with the policy, as bearing on the question whether his subsequent written notice was given within a reasonable time.
    8. Insurance <&wkey;661— Accident Insurance —Action on Claim — Evidence.
    In an action upon an accident insurance policy for total disability resulting from an injury on a passenger train, evidence as to the amount for which insured had settled his judgment against the railroad on account of injury, held too weak and remote to be admissible.
    Appeal from District .Court, Tarrant County; Ben Mi Terrell, Judge.
    Suit by G. O. Mountcastle against the Fidelity & Casualty Insurance Company of New York. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Marshall Thomas, of Dallas, for appellant. McLean, Scott & McLean and Marshall Spoonts, all of Ft. Worth, for appellee.
   BUCK, J.

This is a suit by appellee against appellant to recover for total disability under an accident policy dated April 5, 1911, and renewed for one year on April 5, 1913, said claimed total disability beginning on the date of an accident alleged to have occurred September 15, 1913, at Mercedes, Tex.,, while plaintiff was traveling on a passenger train. It was alleged that the total disability had been continuous from the date of said accident, and would so continue during the remainder of plaintiff’s life. It was further alleged that the policy issued by defendant company provided that if the in-. sured was injured while traveling on a public conveyance provided by a common carrier for passenger service, that the compensation recoverable for total disability should be $100 per week. Plaintiff also sought to re-cover the statutory 12 per cent, damages, and attorney’s fees.

In addition to the general issue, the defendant specially pleaded that under article 16 of said policy it was provided that written notice of an accident for which, a claim was made should be given to the company at its home office in New York City as soon as might be reasonably possible, together with full particulars, etc.; that under article 19 of said policy, it was provided that a failure to comply with any of the provisions of the policy should render invalid any claim thereunder ; that by virtue of an indorsement attached to and made a part of said policy, it was provided that the same was issued subject to article 3378 and article 3379 of the Revised Statutes of Texas of 1895, both of which articles were quoted in said indorsement; that by reason, of said provisions of the policy, and the provisions of said articles of the Revised Statutes of Texas, the plaintiff was required to give written notice to the appellant of the accident within 91 days from the date thereof; and that said provisions of said policy were reasonable. It was alleged that the plaintiff failed to give said notice within the required time, and that said failure on his part rendered invalid the claim asserted by him in this cause. It was further specially denied that the accident in question resulted in immediate and continuous total disability, but that by reason of said accident he was compelled to employ physicians to treat him, and that in accordance with article 10 of said policy he was entitled to be reimbursed for said medical expenses incurred by him, and that in accordance with the representations and request of plaintiff, defendant paid to him the sum of $14 in settlement of said expenses •claimed by him and of all right of action that he might have by reason of said accident or injury.

Plaintiff by supplemental petition denied the defensive allegations contained in defendant’s answer, and he alleged that the $14 paid him, the receipt for which he signed, was in payment of the doctor’s bills only, and that there was no consideration moving to him to support defendant’s claim of a payment in full for the injury he had sustained. The cause was tried before a jury on special issues which were answered favorably to plaintiff, and defendant has appealed from a judgment entered in accordance with the verdict of the jury. The judgment is in the sum of $15,400, with interest on $12,500 of the same from February 9, 1916, and on $2,900 thereof from the date of the judgment; the latter amount being 12 per cent, damages and attorney’s fees.

The evidence shows that at the time of the accident plaintiff was the local manager of the J. Rosenbaum Grain Company, and. that until January 1, 1915, he continued in said' position and received a salary of $5,000 per annum. It is further shown that soon after plaintiff returned to his home at Ft. Worth, subsequent to the accident, he met J. S. Coe, the local agent of the defendant company, and had a conversation with him in which he gave him a complete verbal report of the accident, and Coe told him that he was going to Dallas, and would make a report of it to the general agents there. About 4 or 5 weeks thereafter, plaintiff again met Mr. Coe, who told him that he had reported the accident to the company. At the time of the accident, plaintiff was nearing the age limit at which the defendant company issued the character of policy carried by plaintiff. Some time during the latter part of 1913, and subsequent to the accident, plaintiff had a conversation with said Coe concerning the making of a claim by plaintiff against defendant company on account of the accident and injury,- for any disability sustained, and Mr. Coe advisL ed him not to make any claim on that account. He told him that it was hard enough to get a renewal after a man reached the age of 65 — plaintiff was then in his sixty-fourth year — and Coe advised him that if he made a claim he (Coe) did not believe the company would renew his policy. Thereupon plaintiff concluded that he would not make a claim under said policy, and told Coe of such conclusion. In April, 1914, plaintiff’s poiicy was again renewed for the succeeding 1-2 months, and thereafter defendant’s local agent, Coe, told plaintiff that if he would furnish the company with the receipted doctor’s bills that had been paid by him he could secure from the company a reimbursement of such expenses incurred. Said receipted doctor’s bills, which bills amounted to $14 were furnished Coe, and thereafter he delivered to plaintiff the following receipt:

“Received from the Fidelity & Casualty Company of New York the amount of the draft to which this receipt is attached. In payment of the claim, including doctor bills, for injuries received on or about September 15, 1913.”

This receipt was signed by plaintiff June 10, 1914, and plaintiff cashed the draft for $14 accompanying it.

Appellant’s first assignment of error complains of the failure of the trial court to give its requested peremptory instruction for the following reasons:

“A. The. undisputed evidence shows that the injury sustained by plaintiff did not result directly, independently., and exclusively of all other causes in immediate, continuous, and total disability that prevented the assured from performing any and every kind of duty pertaining to his occupation from the date of said accident until the 9th day of February, 1916.
“B. The undisputed evidence shows that plaintiff did not give to the defendant written notice of the accident within the time prescribed by the policy, and that the time prescribed by the policy within which said notice should be given was a reasonable time, and that the defendant had not waived such failure; under .the terms of the policy such failure renders the "'claim of plaintiff thereunder invalid.
“C. The undisputed evidence shows a valid existing release executed by plaintiff which was a valid defense to the claim embraced in this suit, and the evidence of the plaintiff shows that there was a valid and legal consideration for such release.
“D. There is no evidence showing that the local agent, J. S. Coe, had any authority to waive the provision of the policy, requiring notice of the accident, and if the evidence is sufficient to raise the issue of such waiver on the part of Ooe, the same would not be binding upon the defendant.”

We are of the opinion that the evidence is ample to sustain the finding of the jury that the appellee suffered injuries as claimed, and they resulted directly, independently, and exclusively of all other causes in immediate, continuous, and total disability that prevented the assured from performing any and every kind of duty pertaining to his occupation from the date of said accident until the 9th day of February, 1916. It is true the evidence shows that during the time between the accident and February 9, 1916, the appellee was frequently at his office and place of business, but' the testimony further shows that he was in no condition, physically or mentally, to perform the duties and to transact the business pertaining to the position which he occupied. Plaintiff’s own testimony shows that he was injured while on a business trip in the southwestern portion of the state, but that by reason of said injuries he was unable to attend to the business for which he had taken the journey, and returned immediately thereafter to Ft. Worth, and sent for a physician to attend him. Hp testified :

“After I went home on that occasion, I think I remained there during the balance of the month of September, and after that time, I would come to town for about an hour a day; I do not remember the exact number of days that I was confined to my bed on that occasion, but I think it was perhaps 10 or 12 days, and Dr. Dyle Talbot treated me while I was confined to my bed.”

He then testified that he went to the hospital and underwent a serious operation, rendered necessary by reason of the injuries sustained, and that after he was able to leave the hospital he went to Colorado Springs, and stayed some thirty days. He testified:

“After I was hurt on September 15, 1913, I suffered continually until the 25th day of September, 1914,” when the operation was performed.

He further testified that during his stay in Colorado Springs, in July and August, 1914, he was confined to his bed, and suffered continuously; that upon his return home he went to bed and stayed about 4 weeks; that he then attempted to come to the office and tried to do some work, but was unable to do so because of his suffering; that all he was able to do while in his office was to sit in a chair and place himself in as comfortable a position as possible in order to lessen the severe pain with which he suffered. Pie further testified:

“I held my position which paid me $5,009 a year for about 15 months after I received my injury, but from the time I got hurt until I lost my position with the Rosenbaum Grain Company I did nothing for that company, because I could not do it on account of my suffering. * * * Since I received this injury, I have not done anything because my suffering has been too great, .and I have not been able to do it. I can’t concentrate my mind on my business, though I have tried to do so. After I lost my position with the Rosenbaum Grain Company, Mr. R. I. Merrill and myself organized the Mountcastle-Merrill Grain Company, but I have done no work in connection with that company, except to go to the office for about an hour each day and put my feet up on my desk, and occasionally go into the Exchange room and look at the markets. Prior to my injury, my business was that of a grain man. Mr. R. I. Merrill, with whom I am in business, is my son-in-law. Prior to the time I got hurt on the occasion in question, my health was perfect. I was a very robust and hearty man. I did not know my strength, but since I received this injury, my health has been wretched. My wretched condition of health has not come from anything except this injury that I received. * * * At the time I received this injury I was in my sixty-fourth year, and back for 12 or 15 or 20 years prior to that time my health had been as near perfect as any man’s health could be. I never had any injuries prior to this occasion My condition up to February, 1916, was such that I could not sit down and attend to any business pertaining to my occupation as a grain man. I could not do it on account of my suffering. At the time I got hurt, my weight was 225 pounds. I now weigh 198 pounds.”

In this connection R. I. Merrill, plaintiff’s son-in-law, testified as follows:

“Previous to September, 1913, and up to the time of this injury, Mr. Mountcastle, in the way of business ability and mental activity and, physically, I believe, was regarded as one of the foremost grain men in this country. * * * Physically he was a powerful man. He was in generally good health during the 11 years I was associated with him before he got hurt. Since his injury I have been with him constantly, except when he has been away from Ft. Worth. I was with him after he was injured until he lost his position with the Rosenbaum Grain Company — in the same office with him. * * * I will say that Mr. Mountcastle was in pretty bad shape. He was low-spirited, and took very little interest in the business, except what you would tell him. He initiated nothing. He had no resource. If anything came up that looked like it would go wrong, he did not know what to suggest to remedy the situation. He would come down to the office — he usually gets down pretty early, about 8 o’clock — and would look over the mail and put it over on- my desk for distribution and attention, and he would leave, possibly, in an hour or two, sometimes less, and he might stay a little longer, and come down in the afternoon for a short period. A great many times, though, and for weeks at a time, he was not able to come at all, just up and down, and said he was about dead — if anybody would ask him how he felt, ‘Oh, he was about dead,’ and he dragged himself around like he was about dead. After his injury I think I am safe in saying he did not do any buying or selling. He may have answered some personal letters with the Chicago office about some particular piece of business, but so far as actually conducting the business or originating new business, why that practically all fell on me. Buying and selling is the grain business. The reason he has not bought or sold any since his injury is that he has not been in touch with the grain business. He has not seemed to get his mind on it. His mind has been principally on himself and his injuries and his feelings; irritable, and just could not concentrate on what —I would tell him what the prices were now, and he did not seem to recall them; could not apply them to the ever-changing condition of the grain business. He made complaint as to where he was suffering, and how he was suffering — there was no question about that; he was complaining all the time; he suffered all the time. * * * Since his injury, or rather I mean since his trip to Chicago, and his coming back to Ft. Worth, his ability to attend to any of the duties of that office or of a grain man are almost nil, if that word would express it— nothing — he does not contribute anything to the active business of the office; in other words he does not make any money for the office, and in one or two transactions that he tried to engineer he lost a good deal of money. * * * I have noticed Mr. Mountcastle around the home where we are, around our residence. Mr. Mountcastle spent a great deal of time at home and largely at his room; sometimes in bed and sometimes around the house. He goes home early in the afternoon, and in the morning, and to use a common expression, kind of putters around and interferes with domestic affairs.”

Much evidence of this kind is in the record, but we think sufficient has been quoted to support the conclusion reached by the jury and the trial court that by reason of the injuries sustained, plaintiff was rendered incapable of performing the duties of the business in which he was engaged,' or of any other business within the meaning of the policy, and that such incapacity, mental and physical, arose immediately after the injury, and was continuous up to the date heretofore mentioned. The fact that he visited his place of business considerably during said period, and the fact that his employer continued to pay his salary during said time, would not exclude the theory that he was totally unfit to perform the duties incident to the position he held. His son-in-law,' who was assistant manager under him, and assumed the burden of carrying on the business when it became evident that his father-in-law could not do so, would naturally be inclined to shield the plaintiff and to relieve him of the worry and work incident to the carrying on of the business. Mr. Merrill’s competency to conduct the business without any material aid from the plaintiff may be inferred from the fact that the Rosenbaum Grain Company permitted the plaintiff to remain in nominal charge of its business in Ft. Worth for some 15 months after the accident, and that plaintiff was not discharged from said position until a visit by him to headquarters disclosed his mental and physical infirmity. Hence we are unable to sustain the first assignment in so far as it is based upon the reasoning given under paragraph A.

Nor do we feel that we are justified in holding that the trial court should have given a peremptory instruction for the reason given in paragraph B under this assignment. Article 3379 of ¡Revised Statutes 1895, provides, in part, that:

“No stipulation in any contract requiring notice to be given of any claim for damages as a condition precedent to the right to sue thereon shall ever be valid unless such stipulation is reasonable, and any such stipulation fixirig the time within which such notice shall be given at a less period than ninety days shall be void; and when any such notice is required, the same may be given to the nearest or any other convenient local agent of the company requiring the same.”

It is evident from a reading of this statute that while the Legislature intended to provide that no stipulation in a contract requiring notice to be given within a less time than 90 days Should be void, yet that it did not intend to provide that a longer time than 90 days might not he permissible when the circumstances disclosed that the delay was not unreasonable, and where the evidence failed to show that the other contracting party was injured by reason of the delay. As before shown, within a few weeks after the injury plaintiff informed the local agent of the appellant company of the accident, and gave him a complete verbal report thereof, and said agent stated to plaintiff that he was, going to Dallas, where the general agents were located, and would make a report of it to them. Later he told plaintiff that he had made such report, and so far as this record discloses, such report was made by the local agent. While the written proof of loss was not filed with the appellant until December 5, 1914, ¡yet written notice of the accident seems' to have been given January 27, 1914. And appellant’s officers knew of the injury, as evidenced by the fact that the company paid as early as June 10th of that year for the medical treatment incurred. The purpose of notice, as used in the statute, is to convey knowledge, or to bring home to the one affected thereby facts or information that will enable him to guard against fraud, to investigate the facts upon which the claim is based, or to prepare himself to satisfy, meet, or contest said claim. And there is nothing in this record tending to show that by reason of the delay in giving the written notice provided for in the policy that the appellant company was placed in a disadvantageous position, or that it has lost any rights that it would have had had the notice been given within the 90 days. A former suit was filed by appellee against appellant to recover for injuries received and disability resulting therefrom up to December 10, 1914, but a nonsuit was taken as to this suit, and proof of loss, claiming total disability frota the date of accident to the filing of the proof, to wit, February 9, 1916, was then given appellant company. • The character of the injury and the evident inability of the plaintiff himself, and of his doctors to determine the nature or scope *of its effects, and the uncertainty as to whether the final result would be one of permanent and total disability, probably explains the delay in filing proof of loss, and in giving notice further than that given to the agent, before mentioned, and we do not feel that under the circumstances we can say as a matter of law that the delay was an unreasonable one. Hence we overrule the second ground advanced under appellant’s first assignment.

We do not think that the fact that the receipt given by plaintiff to the defendant company upon the payment of the doctor’s bills was worded as shown would constitute such payment a settlement in full for injuries sustained. At all events, it was sufficiently ambiguous on the question of its scope to adroit proof thereon.

Because defendant’s agent advised against a claim for damages, the only claim made was for the amount incurred for medical sendees. For this item of damages the defendant company was liable, independent of the question of liability as to injuries. Article 10 of the policy provides for the payment by the appellant company for medical or surgical treatment incurred by the insured by reason of an accident falling within the terms of the policy when the amount of such medical or surgical fees is not in excess of $25. It is reasonable to presume that both the local agent and the insured understood that in presenting this claim for $14, plaintiff did not mean that such claim should cover anything else than the medical or surgical fees. The payment by a debtor of a liquidated amount, presently due, and to which he has no defense that can be urged in good faith or with color of right, is not by itself a sufficient consideration to sustain a release by the creditor of other liquidated claims against the debtor. Woodall v. Pacific Mut. Life Ins. Co., 79 S. W. 1090; Franklin Ins. Co. v. Willeneuve, 25 Tex. Civ. App. 556, 60 S. W. 1014; Insurance Co. v. Wickham, 141 U. S. 564, 12 Sup. Ct. 84, 35 L. Ed. 860. Therefore, in order to sustain the judgment as to this feature, and to overrule appellant’s first assignment in so far as it rests upon .the reason given in paragraph C thereunder, we are not required to pass upon the question as to .whether plaintiff could excuse himself, under the circumstances shown, and in the absence of fraud pleaded and proven, from not reading the receipt he signed. If there was no consideration for the receipt given in so far as it attempted to cover items other than the doctor’s bills, such receipt becomes nudum pac-tum. And it becomes ' immaterial whether the local agent had authority to waive the provisions of the policy requiring notice of the accident to be given to the defendant company at its home office. The question involved, we think, is not one of waiver, as contended in paragraph D, under this assignment, but whether under all the circumstances shown, written notice was given within a reasonable time. We do not understand the terms of the policy to require that written notice shall be given and signed by the injured party himself. If it be admitted, for the sake of argument, that in so far as the undertaking on the part of the local agent to give the notice required, said agent was acting as the agent of the plaintiff and not the defendant, yet the circumstances, we think, were admissible upon the question of the reasonableness vel non of the time in which the notice was in fact given. Therefore we overrule appellant’s first assignment as a whole.

In the second, third, and four assignments the appellant attacks the finding of the jury in answer to issue No. 12, which issue submitted the question as to whether the injury sustained by plaintiff resulted directly, independently, and exclusively of all other causes in immediate, continuous, and total disability that prevented the assured from performing any and every kind of duty pertaining to his occupation from the date of the accident until the 9th day of February, 1916. To this question the jury answered, “Yes.” The main insistence of appellant is that the evidence showed that during the said period of 15 months plaintiff below received a salary from his employers in the sum of $5,000 per annum, and that during said time, or at least during a good portion of it, he was at his office and place of business almost daily, and that the testimony of the defendant’s witnesses J. S. Ooe and E. B. Wooten was to the effect that apparently plaintiff’s condition, physically and mentally, was not materially different during said period from what it was before the accident. But we think the testimony of plaintiff himself and of his son-in-law, R. I. Merrill, upon this point is sufficient to sustain the finding of the jury. Defendant’s witnesses, who testified as to plaintiff’s condition during said time, were certainly not in as favorable a situation to determine plaintiff’s real condition and mental and physical capacity to transact business as was the witness Merrill, who was with plaintiff almost daily, both in the office and in the home. It certainly cannot be said that one who sees a person only occasionally, or under casual circumstances, is as competent to testify as to the real condition of health of such person aS one who is closely associated with him, and because of business relations with and earnest concern for such person, is specially interested in the welfare and state of health of such person. Nor do we think that the fact that the plaintiff was paid during said period his accustomed salary would be conclusive proof that he was in condition of mind and body to earn it and capacitated to fulfill the duties of such employment. As already indicated, on account of Mr. Merrill’s assuming in the main the management of the business during said time, and relieving Ms father-in-law of the worry and responsibility incident thereto, the real condition of plaintiff may not have been disclosed to his employer, whose principal office was in a distant state. The evidence further shows that the plaintiff had been in the employment of the same company for many years prior to his injury, and during said time had been an efficient and capable manager of its business. Under such circumstances it is not uncommon for an emplojmr to continue the salary of a trusted employs,. wlio has given the best of his life to its interests and service, for months and years after the failing health of such employs renders him incompetent to perform the duties pertaining to his position. Such practice is but a recognition of and reward for past services. The cases cited by appellant, to wit, Bylow v. Casualty Co., 72 Vt. 325, 47 Atl. 1066, Association v. Millard, 43 Ill. App. 148, James v. Casualty Co., 113 Mo. App. 622, 88 S. W. 125, etc., to sustain the contention that where the facts show that the insured was able, during the period for which he claims indemnity on account of total disability, to perform some service for which he received remuneration, although not able to perform the exact duties with reference thereto theretofore performed, that he cannot recover for total disability, are not in conflict, we think, with our conclusions herein-above expressed. As said in Association v. Millard, supra:

“The undertaking of defendant was not to indemnify against pain or inconvenience, but for a loss of time when wholly disabled from attending to his professional business.”

And in James v. Casualty Co., supra, it is said:

“We therefore hold the contract to mean, not that the insured was rendered absolutely and literally unable to perform any part of his occupation, but that he was disabled from performing substantially the occupation stated in the policy.”

In Wall v. Casualty Co., 111 Mo. App. 504, 86 S. W. 491, also cited by appellant in this connection, it is said:

“The purpose was to provide indemnity for the plaintiff if he should sustain loss of time in consequence of an accidental injury; that is, be prevented by such an injury from using his time so as to derive income from it. In other words, the agreement contemplated an indemnity to the plaintiff by an accidental injury [by which] his ability to earn money should be suspended.”

Taking this quotation as a whole, it is evident that the court who rendered the opinion did not mean to hold that because the facts show that the insured under a policy like this did receive money in the form of a salary that it would be conclusive against his contention of total disability, irrespective of facts that showed that during said period he was totally disabled to perform the services incident to his employment. It is not a question of the amount of money the plaintiff received during the time for which he claims total disability existed, but rather the issue as to whether or not during said period he was in fact, by reason of said injury, totally disabled to perform any substantial service or duty connected with his line of business or employment. Hence we overrule these three assignments, and also the fifth, sixth, and seventh, which are directed to the finding of the jury in answer to issue No. 10, which submitted to the jury the question of whether or not a written notice dated January 27, 1914, was given to the defendant as soon as was reasonably possible, and to which query the jury answered, “Yes.” These assignments are overruled for the reasons heretofore given, and also the eighth and ninth, which attack'the judgment on the ground that the undisputed evidence shows that plaintiff had released a claim against the defendant prior to the suit, as shown by the receipt introduced signed by the plaintiff to which reference has heretofore been made. We do not find it necessary to say anything further with reference to- the matter here advanced, and the assignments are, accordingly, overruled.

In the tenth assignment complaint is made of allowing plaintiff double indemnity for the period of time which the jury found he was totally disabled, because, as urged by appellant, there was no finding of the jury that said bodily injury sustained by plaintiff had occurred “while on a public conveyance (including the platforms, steps, or running board thereof) provided by a common carrier for passenger service,” as in said policy provided. In answer to question 8, to wit, “Was the plaintiff a passenger on a railway train at the time he received his injuries, if he did receive any?” the jury answered, “Yes.” Therefore the tenth assignment and the eleventh, which involves the same question, are overruled.

We think the objection to the testimony of plaintiff that he gave J. S. Coe, the local agent, verbal notice of the accident was admissible, not because said verbal notice could be held a compliance with the requirements of the policy for a written notice, but as touching on the question of whether or not the written notice subsequently given was within a reasonable time. Therefore we overrule the twelfth assignment, and also the thirteenth, fourteenth, and fifteenth, which involve in principle the same question.

In the sixteenth specification of error it is urged that the trial court erred in refusing to allow the defendant to prove by the plaintiff the amount for which he settled the judgment he recovered against the railroad company on account of injuries involved in this accident. It is contended that this testimony was admissible for the purpose of showing the estimate that the plaintiff himself placed on the character and extent of his injuries. That if the plaintiff had been permitted to answer defendant’s questions as to this matter, defendant would have been able to show that plaintiff settled for $10,000 a judgment which he had recovered against the railroad company in the sum of $15,000. We think the probative effect of the testimony sought to be elicited is too weak and remote to have authorized the submission.

All assignments are overruled, and the judgment is affirmed.

CONNER, C. J., not, sitting, serving on writ of error committee at Austin,
      <&wkey;For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: MOURSUND, J.

license: Public Domain

text:
    CRAIG, THOMPSON & JEFFRIES v. BARREDA.
    (No. 5822.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 3, 1917.
    On Motion for Rehearing, June 20, 1917.
    Second Motion for Rehearing Denied Oct. 24, 1917.)
    1. Appeal and Error <&wkey;>927(7)— Peremptory Instruction — Dependant’s Case.
    In determining whether the trial court should have given a peremptory instruction for plaintiff, it is proper to view the case in accordance with defendants’ pleadings and evidence.
    2. Sales &wkey;>90 — Substituted Agreement— Performance — Suit on Original Contract.
    Where a contract was made for the sale of cattle, and the buyers refused to perform when the contract was executory as to both parties, and thereupon a substitute contract was made whereby the seller agreed to accept a lower price than that named in the contract if the buyer would take the cattle, and such substitute contract was fully performed by both parties, the cattle being delivered and the price named in the substitute contract paid, the seller cannot sue on the original contract as if it had been carried out in every respect except that the buyers had not paid all the purchase money stipulated, though, when the buyers refused to carry out their contract, the seller could have treated it as broken and have sued for damages.
    On Motion for Rehearing.
    3. Sales <&wkey;60 — Ambiguity as to Passing of Title — Construction by Parties.
    Where a contract for the sale of cattle located in Mexico at a price per head provided that the buyers should pay all expenses for gathering the cattle and bringing them into Texas, including consular papers, duties, and other expenses, and that the cattle should be paid for as soon as they reached the American side of the Rio Grande river at Eagle Pass, such contract admitting of a doubt as to the intention of the parties as to when title should pass, the construction placed thereon by the parties was controlling.
    4. Appeal and Error <&wkey;171(3) — Review-Matter Not Pleaded.
    In an action to recover the price per head for cattle specified in the original contract for their sale, later reduced by the seller on the buyers’ refusal to perform, where the seller did not answer the buyers’ plea with any charge that, if a modification such as pleaded was actually made, it was induced by mistake or fraud, the Court of Civil Appeals cannot dispose of the case on any such theory, no matter what conclusion it might reach from the evidence.
    Error from District Court, Maverick County; Joseph Jones, Judge.
    Suit toy Ramon Barreda against Craig, Thompson & Jeffries. To review a judgment for plaintiff, defendants "bring error.
    Reversed, and cause remanded.
    O. K. McDowell and Boggess & Smith', all of Del Rio, and Ed H. Wicks, of San Antonio, for plaintiffs in error. Sanford & Wright, of Eagle Pass, for defendant in error.
   MOURSUND, J.

Ramon Barreda sued Craig, Thompson & Jeffries to recover damages in the sum of $2,394, alleging that on January 9, 1914, at Laredo, Tex., he entered into a written contract with said defendants for the sale of all the cattle he had, located at Candela, Coahuila, in the republic of Mexico, for which defendants agreed to pay $19 per head, United States currency, except for calves, for which only $5 per head was to he paid; that defendants were also to pay all expenses for gathering the cattle and bringing them to Texas, including consular papers, duties, and other expenses that might occur, and the cattle were to be paid for as. soon as they reached the American side of the Rio Grande at Eagle Pass, Tex.; that the cattle were gathered and were about to he taken across the Rio Grande, when defendants Thompson and Craig, acting for defendant firm, represented to plaintiff in Eagle Pass that the authorities in Mexico were charging and demanding that 10 pesos per head be paid before they would permit the cattle to be' taken across the line, and requested plaintiff to reduce the price to $12 per head for the cattle; that thereupon plaintiff advised defendants to pay the duty and cross the cattle, and if in fact they had to pay 10 pesos per head plaintiff would accept $12 per head for the cattle and deliver the cattle ; that the defendants thereupon paid the duty required of them and crossed the cattle, and in answer to inquiry made by plaintiff, who did not know what amount had been exacted, represented to plaintiff they had paid 10 pesos per head as duty, and, relying upon such representation, plaintiff accepted the $12 per head and delivered the cattle; that this representation was false, as defendants did not pay said amount or anything near that amount, and was fraudulently made to induce plaintiff to accept the reduced price. Plaintiff alleged that the difference in the sum contracted to he paid and the price accepted on account of such representation was $2,394. He also alleged that the original contract had not in any way become oppressive upon defendants, and that there was no consideration moving from them to him for the alteration of the original contract.

Defendants answered by general denial and a special answer to the effect that before the cattle reached the border defendants were informed that the Huerta government, then in control of the Mexican part of Piedras Negras, had levied an export tax or duty of 10 pesos per head on all cattle exported; that defendants, believing said tax had been levied, informed plaintiff that by reason of the changed conditions arising subsequent to the execution of said contract, and the probability that the crossing of the cattle would be delayed and rendered more expensive than was originally contemplated, they could not and would not carry out said contract according to its original terms; that thereupon plaintiff opened negotiations for a mutual modification of the contract, and a modification was agreed to by wbicb defendants were to pay $12 per head for all cattle delivered and to bear all the costs and expense of crossing the same; that pursuant to this agreement the defendants paid the charges and crossed the cattle, and plaintiff then delivered said cattle to defendants, who paid him $6,504 for same, and plaintiff executed to defendants his bill of sale therefor.

The court gave a peremptory instruction in favor of plaintiff, and upon the verdict returned pursuant thereto entered judgment for the amount sued for.

The petition, in substance, alleges that it was agreed to modify the original contract provided a duty of 10 pesos per head was exacted; that in fact no such duty was exacted, but by fraudulent representations defendants induced plaintiff to believe that such a duty had been collected, and by reason of such fraud plaintiff parted with his cattle for less than he was entitled to receive. There is no allegation that such conditional modification was induced hy fraud, accident, or mistake, but it is averred that the original contract did not become burdensome upon defendants, and that no consideration inured to plaintiff for such conditional modification.

Defendants filed a general denial, and then pleaded that a substitute contract had been made, setting out the- terms thereof, and that it had been fully performed by both parties thereto.

The testimony introduced in behalf of each party corresponded with his pleadings, thus making issues of fact to be determined by the jury, unless plaintiff is entitled to recover upon the original contract the sum sued for by him, upon the theory that the obligations thereby created remain in full force and effect.

This is a case in which the buyer refused to perform his contract, while something remained to be done by both parties thereto, whereupon a substitute contract was entered into by which the seller agreed to accept a lower price than that named in the contract if the buyer would take the cattle, and such substitute contract was fully performed by both parties, the cattle being delivered and tne price named in the substitute contract paid.

We state the case in accordance with defendants’ pleadings and evidence because it is proper to do so in determining whether the court should have given the peremptory instruction. The case of Jones & Carey v. Risley, 91 Tex. 1, 32 S. W. 1027, is authority for the proposition that the seller could not have enforced the substitute contract, because it was not based upon a new consider-, ation, even though made at a time when neither party had fully performed his part of the contract. But this is not a suit to enforce the substitute contract. That contract was fully performed by both parties. The suit is upon the original contract for the difference between the price contracted to be paid under such contract and the price received under the substitute contract. Many authorities on the subject of consideration for new agreements abrogating or altering prior contracts will be found collated and discussed in the note to Morecraft v. Allen, L. R. A. 1915B, 1, and in the editor’s “Conclusion” to the note appears the following statement:

“If a now agreement abrogates, alters, or supplants an old one, and is fully executed by performance on both sides, inquiry into its consideration is closed.”

We believe the rule just stated should be applied in this case. When the buyers refused to carry out their contract, the seller could have treated it as breached and have sued for damages, but, being unable to find another buyer, he entered into negotiations with the buyers which culminated in the making of the substitute agreement. That agreement was fully performed, and the seller should not be permitted to sue on the original contract as if it had been carried out in every respect except that the seller had not been paid all the purchase money stipulated therein to be paid by the buyers.

The judgment is reversed, and the cause remanded.

On Motion for Rehearing.

Defendant in error contends that by the terms of the contract the title to the cattle was vested in plaintiffs in error at the time they refused to further perform their obligations under the contract, and that therefore our decision is in direct conflict with the opinion of this court in the case of Whitsett v. Garney, 124 S. W. 443.

We conclude that the contract does not express an intention that the title to the cattle should pass prior to their reaching Eagle Pass; that the language is such as to admit of a doubt as to the intention, to say the least; that the construction placed thereon by the parties as disclosed by the evidence and defendant in error’s pleading was that the title was not to pass until the cattle reached Eagle Pass, and were formally delivered .by defendant in error; that such construction should control us in determining the questions presented; and that therefore no conflict exists between our decision and that rendered in Whitsett v. Carney. The case cannot be decided by the rule applicable to the attempted satisfaction of a liquidated .demand by part payment thereof under an agreement that such part payment is to be received in full satisfaction of the debt.

We do not agree with plaintiffs in error that the suit is one for damages for fraud. Barreda sought to recover upon the original contract, presenting two theories, one that he had agreed to a modification to take effect provided a certain event occurred, which event he alleged had not occurred, hut that he had been led by fraud to believe it had occurred, and the other that there was no consideration for any modification, and no change had taken place which would make the contract so burdensome upon appellants as to support an agreement modifying the original contract.

The plaintiffs in error denied Barreda’s allegations, and pleaded that they had refused to perform the original contract, stating their reasons for such act, and that thereupon Barreda had agreed to a change in price, and that the new agreement had been fully performed by both parties. They failed to plead and prove any consideration for the modification, and relied solely upon the theory that, when a contract in which there has been a change made as to a material clause is fully performed, the parties are bound, and cannot inquire into the consideration.

Barreda did not answer plaintiffs in error’s plea with any charge that, if a modification such as was pleaded was actually made, it was induced by mistake or fraud ; so we cannot dispose of the case upon any such theory, no matter what conclusion we were to arrive at from the evidence. The testimony of Barreda and plaintiffs in error is practically in accord to the effect that the change was proposed and agreed to because of the information to the effect, that a duty of 10 pesos would • be charged. In fact, no duty whatever was charged by the Huerta government. The testimony of the broker tends to show that probably one of the appellants knew the day before the cattle were driven across the Rio Grande that probably no duty would be charged. No such information reached defendant in error, or he would not have accepted the offer made by plaintiffs in error.

We are - still of the opinion that the defendant in error was not entitled to a peremptory instruction upon the case made by the pleadings and evidence.

The motion is therefore overruled.
      (g^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: TALBOT, J.

text:
    MOORE v. CITY OF DALLAS.
    (No. 7840.)
    (Court of Civil Appeals of Texas. Dallas.
    Jan. 19, 1918.
    Rehearing Denied Feb. 16, 1918.)
    1. Juey <&wkey;89 — Disqualifications of Ju-boes — Taxpayers.
    In an action against a city, the fact that veniremen are taxpayers of the city does not disqualify them; their interest being entirely too remote.
    2. Navigable Waters <&wkey;39(4) — Title to— Riparian Proprietors.
    The channel of a natural stream more than 30 feet wide and navig;able is owned by the state, and a riparian proprietor does not own to the center of the channel, and so cannot complain that a municipality under authority of the state constructed a dam impounding the waters of the stream.
    3. Trial <&wkey;350(3) — Waters and Water Courses <&wkey; 178(2) — Injuries to Lands — Measure.
    Where a municipality erected a dam impounding the waters of a stream, and plaintiff asserted that his lands bounded by the stream were damaged, the measure of his damage is the difference between the value of his laq,d just before and just after the injury, and the refusal of special issues calling for findings as to whether the dam caused any damage to plaintiff’s lands during certain floods was not .error; there being no testimony with reference to any special or particular damage resulting therefrom.
    4. Waters and Water Courses &wkey;>179(3)— Evidence — Admissibility.
    In an action for damages to plaintiff’s land resulting from the erection of a dam, the admission of evidence as to the flooding of other lands on the same stream in time of high water was improper, where it was not shown that those lands were subject to the same conditions as plaintiff’s.
    5. Watebs and Water Courses <®=»179(3)— Evidence — Admissibility.
    In an action by a riparian proprietor against a city for damages from the construction of a dam to impound the waters of a stream, to supply the inhabitants of the city, evidence as to the great necessity of that measure, and that prior to the construction of the dam drinking water had to be hauled, and there was insufficient water for flushing purposes, was improper.
    Appeal from District Court, Dallas County ; W. F. Whitehurst, Judge.
    Action by Charles C. Moore against the City of Dallas. From a judgment for defendant, plaintiff appeals.
    Reversed and remanded.
    Marshall Thomas, of Dallas, for appellant, D. R. Callaway, Lee Richardson, and Royall R. Watkins, all of Dallas, for appellee.
   TALBOT, J.

Appellant is the owner of a farm situated in Dallas county, Tex., just west of the Elm fork of the Trinity river, the center of the channel of Denton creek, which empties into said river, being, according to his claim and contention, the north line of his land. During the year 1912 the city of Dallas, for the purpose of enlarging its water supply, erected a concrete dam across the channel of the Elm fork of the Trinity river on the Western Berry survey, about 2,000 yards below the mouth of Den-ton creek. This dam, so constructed, had the capacity of storing between 350,000,000 and 400,000,000 gallons of water in the channels of Elm fork of the Trinity river and of Denton creek, and was completed and the water stored therein in the latter part of Deceinber, 1912. This suit was filed by appellant against the city to recover damages to his farm by reason of the construction and maintenance of the dam and the storing of the water in the channels of said streams, in which he alleged that the condition created by the defendant city caused the banks of said streams to overflow during each successive rise of said streams, causing his property to overflow and wash, and imposing upon his property an additional burden of overflow water; that his farm was of a reasonable value of $100 per aere; and that by reason of the condition created by the city, the value of his property had been depreciated until it was not worth exceeding $50 per acre. It was alleged by him that the city of Dallas had appropriated so much of his property as was situated in the channel of Denton creek for'its purposes, and had taken his property and damaged the same without haying made compensation therefor or secured the same in contravention' of the organic law of the state. Appellant pleaded his cause of action in two counts. In the first count he sought to recover for permanent damages to his land, and the value of the property appropriated, and also sought an injunction against the city enjoining and prohibiting it from maintaining said dam in said stream until it had compensated him in the manner provided by law in the taking and damaging of his property. In the second count appellant asked a recovery for damages caused to his property by reason of the overflows occurring in said streams on the 8th of June, 1915, on the 28th day of January, 1916, and the 3d day of April, 1916. The city of Dallas answered by general and special demurrers, general denial, and specially that it had appropriated the waters in said stream, and had in accordance with the act of the Legislature of the state of Texas, known as chapter 171 of the General Laws of the State of Texas, enacted by the Thirty-Third Legislature (Vernon’s Say les’ Ann. Giv. St. 1914, art. 4991 et seq.), duly filed in the office of the board of water engineers of the state a certified copy of the sworn statement making such appropriation, and had also filed with the clerk of the county court of Dallas county copy of such certified copy of the said appropriation.

The case was tried before a jury on June 27, 1916, and submitted by the court on the following special issues:

First Wjhat was the reasonable cash market value of plaintiffs property immediately before the building of Carrollton dam?

Second. What was the reasonable cash market value of plaintiff’s property immediately after the Carrollton dam was com-ifleted?

Third. Do you find and believe from the evidence that plaintiff’s land was susceptible to overflow to the same extent prior to the construction of the Carrollton dam as after the construction of said dam?

To these questions the jury answered: First, $20 per acre. Second, $40 per acre. Third, Les.

Dpon return of the verdict the court entered a judgment in favor of the defendant, and the plaintiff appealed.

The first assignment of error Asserts that the court erred in refusing to sustain the plaintiff’s challenge for cause of the jurors who were taxpayers in the city of - Dallas, and in requiring him to try his case before such jurors. The proposition is that:

“A resident citizen of the city of Dallas and a taxpayer in said city is disqualified as a juror in a suit of this character against said city.”

The challenge for cause was, because disqualified under the statute and because interested in the matter in controversy. The assignment will be overruled. The question presented has been definitely decided, we think, against-the appellant’s contention in the following cases: Peacock v. City of Dallas, 89 Tex. 438, 35 S. W. 8; Railway Co. v. Bishop, 34 S. W. 323; City of Marshall v. McAllister, 18 Tex. Civ. App. 159, 43 S. W. 1043; Martin v. Somervell County, 21 Tex. Civ. App. 308, 52 S. W. 556; City of Jackson v. Pool, 91 Tenn. 448, 19 S. W. 324. It is not believed that the difference in the wording of the statute relating to the disqualification of judges and that relating to the disqualification of jurors materially affects the question. The decisions above referred to rest upon the view that the interest of a taxpayer of a city is too indirect, remote, and contingent to render him disqualified to serve as a juror in a suit in which the city is a party. If the interest in either case, even though indirect, were immediate, real, and substantial, it would doubtless be sufficient to disqualify, but our decisions, as we understand them, are to the effect that resident taxpayers of a municipal corporation have no such interest in the subject-matter of a suit for damages against it.

By his second assignment of error the appellant contends that the court erred in entering the judgment asked for by defendant, because he says the undisputed evidence showed that the channel of Denton creek on the north boundary line of his property had been appropriated by the defendant; that the same was the property of the plaintiff, and that he had not been compensated therefor as required by law ; that until such compensation had been made the defendant had no legal right to maintain the Carrollton (dam, and therefore plaintiff was entitled to a judgment enjoining defendant from maintaining the same and requiring its removal. This contention is based upon the theory that plaintiff’s north boundary line and ownership extended to the channel or middle of Denton creek; that the dam in question caused the water in Denton creek to be impounded and stand therein at a great depth, all the time depriving him of the use of his property. The proposition is that the taking and appropriation by the appellee of the portion of the channel of Denton creek, the property of appellant, without compensation first being made therefor, was a taking of his property in contravention of the Constitution of this state, and that injunction to prevent such appropriation or use is the proper remedy, and such relief should have been granted. A complete answer to this contention, we think, is made by appellee, namely:

“Denton creek being a natural stream, and navigable water course, the channel thereof belongs to the state of Texas, and no part of the same was owned by appellant, and the trial court therefore did not err in refusing to render judgment enjoining and prohibiting appellee from maintaining its dam across Elm fork of Trinity river, and requiring the removal of said dam because the water was thereby backed up in. the channel of said creek. Appellee owns and operates its system of waterworks, and by authority of title 73 of the statutes of this state appropriated certain waters in the channel of Elm fork of Trinity river by means of the construction of what is called Oarrollton dam across said stream for that purpose. This stream again forks at a distance of about 2,000 yards above said dam, the western prong thereof being designated as Denton creek. The testimony is sufficient to show circumstantially that Denton creek is more than 30 feet in width, and therefore a navigable stream, the channel of which is owned by the state.”

There was no error in refusing to submit certain special issues requested by the appellant, the refusal of which is complained of in the fourth and fifth assignments of error, calling for findings of the jury as to whether or not the maintenance of the Carrollton dam caused any damage to plaintiff’s land in the floods of June 8, 1915, January 26, 1916, and April 3, 1916, and, if so, a finding of the reasonable market value per acre of plaintiff’s land in the condition it was in immediately before and immediately after said floods. Under the facts the true measure of plaintiff’s damage was the difference between the value of plaintiff’s land just before and just after the injury, if any, and if any complaint whatever could be made to the form in which the issue was submitted, which is not done, it is that the jury possibly may have been misled or confused in being directed to find the market value of plaintiff’s land immediately before and after the construction of the dam], instead of immediately before and immediately after the injury, if any, to said land. The testimony as to these values was conflicting, and was also conflicting, as we understand it, with respect to the frequency and extent of overflows and washing of the soil on the land before and after the construction of the dam and the alleged injury. We have discovered no testimony in the record with reference to any special or peculiar damage resulting to the land by reason of the three floods mentioned, or showing the comparative market value of the land per acre just prior to and just after said respective floods. As we view the testimony, and as argued by the appellee, it does not treat the several alleged dates of damage separately, but has reference to it generally “as a permanent damage consequent upon and continuing since the construction and maintenance of the dam. No witness, so far as we have discovered, singled out and specified in his testimony any peculiar or special damage done by any one of the floods designated ip the special issues requested by appellant. Nor have we found any evidence showing how many acres of land were damaged by each or any one of said floods.” Of the many cases illustrating the rule as to the measure of damages in this character of case, we cite Railway Co. v. Graham, 12 Tex. Civ. App. 54, 33 S. W. 577; Railway Co. v. Horkan, 45 S. W. 391; Railway Co. v. Barry, 98 Tex. 248, 83 S. W. 5; Railway Co. v. Brown, 38 Tex. Civ. App. 610, 86 S. W. 659; Railway Co. v. Clayton, 54 Tex. Civ. App. 512, 118 S. W. 248.

There are several, assignments of error complaining of the admission of the testimony of certain witnesses to the effect that certain lands located along Elm fork of the Trinity river and some distance below plaintiff’s land and the Oarrollton dam had suffered from overflows of that stream during heavy rainfalls for many years prior to the construction of said dam practically the same as they had suffered therefrom since its construction. The contention is that “before evidence as to the effect of floods in the same stream at a point different from that involved in the suit is admissible, the conditions and surroundings must be shown to be substantially similar in all respects to the conditions and surroundings of the stream at the point involved in the suit,” and that this was not done. The proposition embraced in this contention is sound, and we think the testimony was improperly admitted. The. necessary predicate for its introduction was not laid. It was not shown that the land spoken of by the witnesses and plaintiff’s land were so similarly situated that the one would be as subject to overflow and damage as a consequence of the dam in question as the other. In Railway Co. v. Kiersey, 101 Tex. 513, 109 S. W. 862, the issue was ' whether the construction of a railway across a 'bayou had caused the plaintiff’s lands thereon to become boggy and not to dry out after overflow, and it was held that evidence that no such condition was observed on the lands of another proprietor on the bayou some miles above was inadmissible. In passing upon the question the Supreme Court quotes with approval from the opinion of that court in Green v. Railway Co., 79 Tex. 604, 15 S. W. 685, the following:

“Before such a test can be properly applied the condition of the two places with regard to the production of a crop should be proved in every material particular. Such evidence can scarcely ever be of a very satisfactory character.”

See, also, Railway Co. v. Docker, 78 Tex. 279, 14 S. W. 611. It will not do to say that this testimony was harmless. It bore upon a vital issue in the case, and was introduced by the appellee evidently for the purpose of having it considered by the jury as proof of its claim that appellant’s property had not been injured or damaged as a result of the construction of the Carrollton dam. It was clearly calculated to apd probably did very greatly influence the jury in rendering the verdict they did.

We are further of the opinion that the witness R. R. Nelms should not have been allowed to detail to the jury the efforts made and methods adopted by appellee to supply its inhabitants with water at or about the time the construction of the Carrollton dam was 'begun. The statement of this witness to the effect that the appellee at that time could not supply the people with water for the purpose of flushing the toilets, and had 74 wagons running over the city to supply drinking water, putting tubs in front of the homes of different ones, could not fairly he used as evidence tending to establish any issue in the case, and was calculated to influence the jury to the prejudice of the appellant. Appellee says the testimony of this witness was relevant and material to show that the construction of the Carrollton dam was necessary, but it hardly can be said that the appellee’s lack of an adequate supply and the necessity for increasing it were issuable facts under appellant’s pleadings or the evidence in the case. The admission of this testimony probably was not of sufficient damage to alone justify a reversal of the case.

Appellant contends that the findings of the jury that the market value of appellant’s land immediately before the construction of the Carrollton dam was $20 per acre, and that it was $40 per acre immediately thereafter, are contrary to the undisputed evidence. There may be some foundation for the contention that these findings are against the preponderance of the evidence, but we are not prepared to hold that they are contrary to the undisputed evidence.

For the reason indicated, we believe the judgment should be reversed, and the cause remanded for a new trial; and it is so ordered.

Reversed and remanded.
      @s»For other cases see same topic and KEY-NTJMBER in all Key-Numbered Digests and Indexes


author: RASBURY, J.

text:
    AYCOCK v. McQUERRY et al.
    (No. 7822.)
    (Court of Civil Appeals of Texas. Dallas.
    Jan. 12, 1918.
    Rehearing Denied Feb. 16, 1918.)
    1. Death <&wkey;103(3) — Peovoking Difficulty —Question foe. Juey.
    In action for wrongful death, whether defendant by kicking deceased provoked the difficulty held a jury question.
    2. Homicide &wkey;>116(4) — Justification.
    If deceased intended to kill defendant,, or it reasonably appeared to defendant that such was deceased’s purpose, the killing was justifiable.
    8. Appeal and Eeeoe <&wkey;1002 — Decision, on Conflicting Evidence — Conclusiveness.
    A verdict on conflicting evidence cannot be disturbed on appeal.
    4. Teial <&wkey;350(3) — Issues—Refusal.
    Where the evidence failed to raise any issue of apparent danger save from the knife held by deceased, and the court submitted such issue, it properly refused to submit issue whether it reasonably appeared to defendant that he was in danger of losing his life at the time he shot deceased.
    5. Death <&wkey;104(l) — Self-Defense — In-steuctions.
    In an action for wrongful death, a charge that, if defendant made an unlawful assault upon deceased, the latter had the right to stand his ground, and if it became necessary for defendant to kill deceased in defense of his own life, the killing could not be justified materially abridged defendant’s right of self-defense.
    6. Homicide &wkey;Jll2 (5)— -Justification.
    Although defendant' provoked the difficulty, he did not forfeit his right to defend against a deadly assault, unless he intended to kill or inflict serious bodily injury.
    Appeal from District Court, Collin County; M. H. Garnett, Judge.
    Suit by Nettie McQuerry and others against A. J. Aycock. Judgment for plaintiffs, and defendant appeals.
    Reversed and remanded for another trial.
    ■ F. E. Wilcox, R. C. Merritt, and Wallace Hughston, all of McKinney, for appellant. G. R. Smith and John Doyle, both of McKinney, for appellees.
   RASBURY, J.

Appellee, Mrs. Nettie Mc-Querry, and her three minor children, sued appellant for damages for wrongfully, willfully, and maliciously killing Killis McQuer-ry, husband and father, respectively, of appel-lees. Appellant defended the suit on the ground that he killed deceased in defense of his own life, alleging particularly that deceased, who was angered at appellant, intentionally provoked a difficulty with appellant as a pretext for assaulting and inflicting upon him serious bodily injury, and that at the time appellant shot, deceased, by words and demonstration, evinced such intention, or it reasonably appeared to appellant, viewed from his standpoint, that such was the intention of deceased; also that it was the intention of deceased at said time to assault appellant with a knife, a deadly weapon, for said purpose or it reasonably appeared so to appellant, viewed from his standpoint at the time; also that deceased had threatened to kill and inflict upon appellant serious bodily injury, and at said time manifested an intention to carry out said threats, or it reasonably appeared so to appellant from his viewpoint. There wag a jury trial, the case being submitted upon special issues, resulting in verdict for appellees for $11,500, of which $1,500 was apportioned to the wife and $3,-333.33% to each minor, followed by similar judgment, from which this appeal is taken.

The following facts disclosed by the record are not materially disputed: Appellant, at the time McQuerry met his death, was a merchant and farmer. McQuerry was then and had been the preceding year his tenant on “halves.” McQuerry was industrious and bore a good reputation in reference to the payment of his debts. At said time he had in cultivation 20 or 30 acres in cotton, which it was estimated would yield above a half bale to the acre, and had gathered two or three bales. Appellant had sued McQuerry for $50, alleged to be the damages accruing to appellant for McQuerry’s failure to brake and sow in cane seed certain Bermuda and Johnson grass lands, and for $0.50 store account, and attached McQuerry’s cotton. Mc-Querry, it seems, agreed to brake the land and appellant to furnish the seed. McQuerry claimed that he did not plant the land because appellant refused to furnish the seed. Appellant claimed to have furnished part of them. After the suit and attachment Mc-Querry went to Princeton, where appellant was engaged in business, and accompanied by Mr. Hooten, a local merchant, called upon appellant and inquired of him why he sued, when he knew he would have paid him. Appellant, in substance, replied that he did so because McQuerry owed him, and had not talked that way before. At this point Me-Querry proposed that appellant purchase his crop, and offered to sell for $100. They finally agreed upon $75 for the crop, appellant to dismiss his suit, pay costs and receipt Mc-Querry in full. It was agreed that check for the sum should be drawn and delivered to Mr. Curtis, a local banker. McQuerry and Hooten left appellant’s store. At this time Aycock armed himself with a revolver. Lat-eri McQuerry and Curtis called upon Ay-cock for the check, and were informed that it was delivered by Aycock to Hooten. Upon being reminded it was to be delivered to Curtis, Aycock and Curtis entered Hooten’s store and secured the check, McQuerry remaining in front. Aycock called Curtis’ attention to an indorsement on the margin, providing for its payment only when McQuerry had surrendered possession of Aycoek’s house. Curtis left Aycock and informed McQuerry of the in-dorsement, and that he could not credit him with the amount of the cheek because of the indorsement. At t^is time McQuerry was just off the sidewalk in the gutter, and was to an extent aroused by what he evidently considered unfair treatment by Aycock, and which condition was apparently aggravated by the indorsement on the check. Aycock followed Curtis from Hooten’s immediately, and as he emerged from the store the difficulty, which resulted in the death of McQuerry, occurred. The details of that occurrence at this point, with the shadings, fairly deducible from the evidence of the witnesses, present two theories, which are as follows: According to appellant, as he emerged from Hooten’s store and approached the spot where McQuer-ry was, the latter closed a knife, with which he had been whittling, and said to Aycock, .in substance, if he would put off his knife and pistol, he would whip him. Aycock’s reply was that he did not want any trouble, and for McQuerry to go home. Whereupon Mc-Querry made some remark which appellant failed to catch, and then made a “move” and said, “You have acted the damn rascal with me all the year.” At this remark appellant advanced to McQuerry, and McQuerry advanced to appellant, and as they met Mc-Querry ran his hand in his left pocket, whereupon appellant kicked at McQuerry, and the latter struck appellant. Appellant then turned and ran from McQuerry about three^ or four feet, turning and immediately facing him again, at which time MeQuerry had his hands down and it appeared to appellant that he was trying to open his knife, whereupon appellant drew his pistol, fired twice in rapid succession, and three times with the pistol in both hands. Appellant thought he was in serious danger at the time he fired. It appeared to him that McQuerry was about to cut him.

According to the witness Curtis when appellant came on the sidewalk McQuerry, who held his closed knife in his hand, told appellant to put up his knife and pistol and they would fight it out, or have it out, at the same time tendering his knife to witness, who did not take it. Appellant in a “commanding” tone told McQuerry “he had enough of his talk, and for him to go home,” whereupon Mc-Querry accused appellant of having acted the rascal with him all the year, and whereupon appellant “lunged” at McQuerry or reached out and kicked him in the privates, and as he did so McQuerry doubled back in a stooping position and struck appellant on the temple. McQuerry stumbled or his foot slipped from the encounter, and as he balanced himself he stopped at the sidewalk, and as he so stood appellant drew his pistol and began firing and advancing, McQuerry in the meanwhile retreating, until he had fired five times. Witness thinks McQuerry may have advanced one step to meet Aycock. During the encounter McQuerry was at no time trying to open his knife. McQuerry did not follow Ay-cock up after he struck him.

Appellant’s testimony fairly presents his theory of the occurrence, as does the testimony of Curtis similarly present appellees’ theory thereof, and for that reason we deem it unnecessary to detail that of the other witnesses, since to do so would neither detract from nor add to the force to be attached to what we have stated.

In answer to certain issues of fact referred by the court the jury found that appellant, by kicking deceased, provoked the difficulty. The finding in the respect stated forms the basis of an assignment of error, the proposition asserted being that the finding is without support in the evidence, since it is disclosed by the record that appellant declined the invitation of deceased to engage in mutual combat, and that the encounter occurred only when deceased thereafter accused appellant of having acted the rascal with deceased. The record does, without material conflict, disclose that the difficulty • in the sense of physical clash of the parties came when deceased accused appellant as stated. But it cannot be deduced therefrom, as matter of law, that deceased provoked the difficulty which resulted in the killing. That issue was, in our opinion, one of fact for the jury. The issue as to who provoked the difficulty was in the case as result of appellant’s pleading and evidence, since appellees’ claim for damages was based wholly on the allegation that the killing of deceased was deliberate and without justification, while appellant alleged that he acted in defense of his own life for several- reasons, among them being the allegation that deceased provoked the difficulty with intent to assault appellant. We understand the rule to be that he who provokes a difficulty in order to have a pretext for killing or inflicting serious bodily injury upon another loses his right of self-defense, and while no issue of deceased’s right of self-defense could have arisen, since he did not kill, at the same time, if he did so- intend, or it reasonably appeared to appellant from his viewpoint at the time that such was deceased’s purpose, the killing was justifiable. Hence the pertinency of the point raised. But, as suggested, we cannot concur in the contention that the finding is without support in the evidence. The effect'of the finding of the jury is that at no time during the altercation was appellant in either actual or apparent danger from deceased, and that no act, reasonably calculated to provoke a difficulty, occurred until appellant kicked deceased, and that hence the former provoked the difficulty. That such a conclusion is deducible from the facts cannot, we believe, be reasonably denied. According to the testimony of the witness Curtis, deceased at no time was the aggressor, or did that which could reasonably be construed as supporting a finding that deceased provoked the difficulty. True, it is that deceased, justly or mistakenly feeling that he had been unfairly treated in his business relations, invited appellant to fight it out, closing his knife, which he held in his hand at the time, and tendering it to the witness Curtis, and when the invitation was declined and he was told in a “commanding” tone to “go home, appellant had had enough of his talk,” deceased added that appellant had acted the rascal with him the entire year. Deceased’s knife had been closed; he did not employ any threatening gestures, he did not advance upon appellant; his manner was determined but courteous.

Considering what had preceded the facts just related in reference to the -business relations of the parties, we conclude it cannot be said that the accusation was, as matter of law, calculated to exasperate appellant and justify him in resenting the same by kicking deceased, but at most raised an issue for the jury. On the other hand, according to appellant, when the accusation was made deceased made a “move,” and advanced to meet appellant, and while so advancing deceased ran his left hand in his pocket, the parties instantly meeting and striking at each other, appellant hurriedly retreating three or four steps, turning quickly and observing deceased opening, or appearing to open, a knife, when appellant shot. This theory, we are not prepared to say would not have supported a finding that deceased was, in a legal sense, guilty of provoking a difficulty which would have carried with it all the legal significance of that term and justified the killing. But it is apparent that the evidence is conflicting, and, the jury having accepted appellees’ version of the occurrence, we are without authority to disturb the same.

The court’s refusal to submit appellant’s special issue No. 3 to the jury forms the basis of another assignment of error. The refused interrogatory, in substance, inquired of the jury whether, viewed from appellant’s standpoint, at the time he shot deceased, it reasonably appeared to him that he was in danger of losing his life or of serious bodily injury at the hands of deceased. The proposition advanced is that the issue so presented was raised by the evidence, but not distinctly and separately covered by the interrogatories submitted to the jury by the court. Bearing upon the issue presented in the refused interrogatory, the court did submit to the jury interrogatory inquiring whether the knife which deceased held in his hand at the time of the killing was an instrument with which deceased could have killed appellant or inflicted upon him serious bodily injury. The jury answered, Yes. By the succeeding interrogatory the court inquired of the jury whether deceased was attempting to use the knife upon appellant, or whether it reasonably appeared to appellant that deceased was about to use it upon him so as to inflict death or serious bodily injury. The jury answered, No. It is apparent that the difference in the interrogatory refused and the one submitted is that the former is a general question, under which the jury’s answer would have covered any real or apparent danger from every source, while the latter is a specific question, under which the jury’s findings would cover only any actual or apparent danger from the knife held by deceased at the incipiency of the altercation. Evidently, the trial judge was of opinion that the only danger, actual or apparent, raised by the evidence was from the knife. After careful consideration of the evidence we concur in such conclusion. The evidence of appellant, which presents the matter most favorably to him on that issue, authorizes the court’s action. In addition to what we have already said, the appellant in substance further testified that during their discussion of the settlement of their affairs deceased spoke roughly to him, and after-wards stood on the outside of appellant’s place of business,'-constantly whittling with his knife and apparently angry, which induced appellant to arm himself before leaving his store. While appellant admits that . deceased closed his knife when he invited appellant to fight, he further says that after retreating from the encounter, being the time appellant kicked and deceased struck with his fist, and then “whirling” and facing deceased, the latter was advancing, and appeared to be opening his knife, and, fearing that he would be cut, he fired.

The foregoing and those stated at another point herein fairly and correctly represent the facts upon which appellant acted, and which induced him to shoot deceased, and, being so, fail to raise any issue of actual or apparent danger, save from the knife held by deceased, from which it follows that the court correctly refused the interrogatory requested.

Complaint is made of the court’s action in allowing appellees’ special charge No. 1. The propositions advanced as result of such action will be better understood by stating: First, the substance of the court’s general charge containing necessary explanations and definitions, which, omitting formalities, are: (1) Defined simple assault and assault and battery; (2) declared that one assailed in the manner defined had the right to' stand his ground, etc.; (3) that in passing upon the acts and conduct of one assaulted in the manner defined, such acts should be regarded from such person’s standpoint, etc.; (4) that verbal provocation would not justify assault or assault and battery; (5) that violence would not constitute assault when inflicted in defense of one’s person from actual or apparent danger; (6) applied the rule by instructing the jury, if deceased made such an unlawful assault or threatened assault upon appellant at and before the homicide, and at such time it reasonably appeared to appellant, viewed from his standpoint, that he was then in danger of death or serious bodily injury at the hands of deceased, the killing would be justifiable because in necessary self-defense. The charge also covered threats. The special charge, supplementing the foregoing, told the jury, in substance, that if appellant made “an unlawful assault” upon deceased, the .latter had the right to stand his ground and repel force with force, and if as a conse•quence of such “unlawful assault” it became necessary, in the progress of the altercation, for appellant to kill deceased in defense of .his own life, such killing could not be justified as in self-defense. There are several criticisms of the special charge, none of which, in our opinion, are -meritorious, save those which in varying terms assert that it abridged appellant’s right of self-defense. After a very careful consideration of the evidence and a similar examination of the authorities, we conclude said charge did materially abridge appellant’s right of self-defense. Committing an unlawful assault upon deceased might or might not have abridged appellant’s right of self-defense, depending upon his intention and the character of the assault. Even though appellant provoked the difficulty, as found by the jury, he did not thereby forfeit his right to defend against a deadly assault by deceased unless he provoked the difficulty with intent to kill deceased or inflict upon him serious bodily injury. It was declared in Winters v. State, 37 Tex. Cr. R. 582, 40 S. W. 303, and approved in Young v. State, 53 Tex. Cr. R. 416, 110 S. W. 445, 126 Am. St. Rep. 792, that a charge which “leaves out of view altogether the character of wrongful act or the intent which may have actuated the defendant in doing the act” is erroneous. The charge under discussion does not attempt to define the character of provocation or unlawful assault which would, coupled with an intention to kill or inflict serious bodily injury, deprive appellant of the right to justify his act on the ground of self-defense. Stripped of verbiage, the charge declares that any unlawful assault by appellant upon deceased would deny the former the right to thereafter defend against actual or threatened danger at the hands of deceased. It will be observed that the honorable trial judge did, in effect, tell the jury that before appellant could justify his act in slaying deceased, because of actual or threatened deadly assault by deceased, it must have reasonably appeared to appellant, viewed from his standpoint, that it was the intention of deceased to inflict death or serious bodily injury upon him; but, notwithstanding it was just as important that the jury should also be told of the elements of an unlawful assault which would deprive appellant of his right of self-defense in case he provoked the difficulty, it was not done, but the jury were left to infer that the provocation, the act, or the intent was unimportant so long as the assault was unlawful.

Further, appellant’s contention was that deceased provoked the difficulty in order to have a pretext for inflicting upon him death or serious bodily injury, and that his attack upon deceased was to prevent a threatened assault for that purpose. The court did not charge on that issue. It is as a consequence obviously difficult to say what may have been the conclusion of the jury if that issue had been defined, and a correct charge given defining the character of unlawful assault which would impair appellant’s right of self-defense.

The remaining issues presented in the brief relate to matters of practice and the sufficiency of the evidence to sustain the verdict of the jury. As to those first named they do not, in our opinion, constitute more than informalities which do not constitute reversible error, while, as to those last named, it would be obviously improper to discuss them in view of another trial.

The judgment is reversed, and the cause remanded for another trial.
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author: DUNKDIN, J.

text:
    McBRIDE v. HODGES.
    (No. 8741.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Nov. 24, 1917.
    Rehearing Denied Jan. 12, 1918.)
    1. Master and Servant <&wkey;297(4) — Injuries to Servants — Contributory Negligence in Reduction of Damages — Verdict.
    In a personal injury case, after instruction as to contributory negligence and that verdict for plaintiff should be diminished in proportion to the amount of his negligence, under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5246h, a verdict for the plaintiff is a finding that defendant’s negligence was the proximate cause of plaintiff’s injury.
    2. Master and Servant &wkey;>289(39) — Injuries to Servant — Actions—Questions for Jury — Contributory Negligence as Proximate Cause of Injury.
    It cannot be said as a matter of law that the wearing of a jumper sleeve unbuttoned and dangling three or four inches from the arm, the catching of which on a cable resulted in servant’s injury, was the proximate cause thereof or only an intervening agency; the question being one of fact for the jury.
    3. Master and Servant <&wkey;286(25) — Injuries to Servants — Actions — Knowledge by Master of Defect or Danger.
    Whether a master permitting a pulley to become so out of alignment that a servant had to hold a cable to prevent its running off a wheel is negligent, and whether he is bound to anticipate that a loose sleeve of a servant’s jumper might be caught, resulting in injury, is for the jury to decide, and a finding that such negligence was the cause of the servant’s injury is justified.
    Appeal from District Court, Wichita County; E. W. Nicholson, Judge.
    Action by F. F. Hodges against W. C. McBride. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Carrigan, Montgomery & Britain, of Wichita Falls, for appellant. W. E. Fitzgerald, of Wichita Falls, and Allday & Allday, of Burkburnett, for appellee.
   DUNKDIN, J.

W. C. McBride was engaged in the business of drilling oil wells and the machine used for that purpose was known as an “oil rig.” The cable by means of which the drill was operated wound around what was called a “calf wheel” on the floor of the derrick, and extended from that wheel to and over a pulley located at-the top of the derrick of the rig. The calf wheel was not fn proper alignment with the pulley over which the cable ran.

F. F. Hodges was employed by McBride as a “tool dresser,” but a part of the duties of his employment was to assist in installing new cables whenever they' were necessary. While he was so employed; it became necessary to remove the cable from the machinery and replace it with another. By reason of such improper alignment of the calf wheel with the pulley above, while the new cable was being wound around the calf wheel, after the old one had been removed, it would run off one side of the wheel, and fail to wind thereon unless prevented from so doing by some one holding it, and while Hodges was engaged in thus holding the cable in place the sleeve of his jumper, which he was then wearing, and which was unbuttoned and hanging loose and dangling from his arm three or four inches, became entangled with the cable, and he, being unable to extricate himself therefrom, was carried by the cable over the pulley, and when the machinery was stopped he fell and was injured. He instituted this suit for damages against McBride for the personal injuries so sustained, and from a judgment in his favor McBride has prosecuted this appeal.

It was alleged in plaintiff’s petition that McBride was an iitdependent operator employing about 20 men; that the drilling machinery was improperly constructed by reason of such improper alignment of the calf wheel with the pulley at the top of the derrick; that the calf wheel could easily have been so constructed that it would have been in proper alignment with the pulley; that, had it been so constructed, it would have been unnecessary for plaintiff or any one else to hold the cable while being installed upon the derrick in order to keep it from running off the calf wheel; that, had it been so constructed, plaintiff would not have been injured ; and that the defendant was guilty of negligence in furnishing such machinery in tnat condition for plaintiff’s use, which negligence was the proximate cause of his injury.

In addition to a general denial, the defendant pleaded that plaintiff’s injury resulted from his own contributory negligence in wearing a jumper with a loose or unbuttoned sleeve; that had the sleeve been buttoned, as it should have been, it would not have been caught in the cable, and plaintiff would not have been injured. The defendant also pleaded that plaintiff’s injury was the result of a risk which he assumed, and by reason thereof he could not recover.

Appellant has presented but one assignment of error, and that is to the refusal ot the trial court to peremptorily instruct a verdict in his favor. Under that assignment, appellant insists that the evidence showed conclusively and without controversy that plaintiff would not have been injured if the sleeve of- his jumper had been buttoned and not hanging loose, and that plaintiff was guilty of contributory negligence in wearing a jumper in that condition while attempting to bold the cable, and that such contributory negligence on his part, and not the negligence of the defendant, was the sole proximate cause of his injury.

The verdict of the jury construed in the light of the charge, shows a finding that the defendant was guilty of negligence in the particulars alleged, and that such negligence was the proximate cause of plaintiff's injury. In the court’s charge the issue of plaintiff’s contributory negligence was also submitted in connection with an instruction that, in the event a verdict should be returned in plaintiff’s favor, the amount of. his damages' should be diminished in proportion to the amount of negligence atrributable to him and found by the jury; in accordance with the provisions of article 5246h, 3 V. S. Texas Civil Statutes.

[2] The evidence was. ample to sustain a finding of negligence on the part of the defendant, as-alleged in plaintiff’s petition, m the first place, we cannot say, as a matter of law, that wearing the jumper with the loose sleeve was negligence. That was a question properly to be determined by the jury. The evidence shows without controversy that, if the sleeve of the jumper had been fastened and had not been permitted to hang loose, the accident would not have happened; but that fact would not of itself be of controlling importance in determining whether or not defendant’s negligence was the proximate cause of the injury, since the same could be said of nearly every agency intervening between the primary cause and an injury resulting therefrom through other intervening agencies.

In T. & P. Ry. Co. v. Bigham, 90 Tex. 223, 38 S. W. 162, in discussing whether a primary cause of an injury can be held to be the proximate cause warranting a recovery, the opinion of Chief Justice Stay ton in Railway Co. v. Mussette, 86 Tex. 708, 26 S. W. 1075, 24 L. R. A. 642, was cited with approval, in which the following language from another decision was cited as a correct statement of the law:

“The test is to be found in the probable injurious consequences which were to be anticipated, not on the number of subsequent events and agencies which might arise.”

After citing that decision and many other authorities, the following was said:

“But we are not prepared to hold that in no case can the original cause of the injury be deemed the proximate cause, where an independent and disconnected agency has supervened and brought about the result. The fact of the intervention of an independent agency, it occurs to us, bears more directly upon the question whether the injury ought, under all the circumstances, to have been foreseen; and, where this latter fact appears, wo think that tlie original negligent act ought to be deemed actionable. In Seale v. Railway Company, 65 Texas, 274, Chief Justice Willie says: ‘If the intervening cause and its probable or reasonable consequences be such as could reasonably have been anticipated by the original wrongdoer, the current of authority seems to be that the con■nection is not broken.’ It follows that in our opinion the question of probable cause ought to depend upon the further question whether a reasonably prudent man, in view of all the facts, would - have anticipated the result—not necessarily the precise actual injury, but somo like injury, produced by similar intervening agencies.”

Applying the test as there laid down, we cannot say that the defendant, in furnishing the rig with the calf wheel so out of alignment with the pulley as to require the cable to be held in place by the hands of one of his employés while being wound around the wheel, should not reasonably have anticipated that some garment worn by the employé might be in such a condition that it would become entangled with the cable. We think it a matter of common knowledge that manual laborers often work with their sleeves unfastened, and that while unfastened the sleeves are likely to hang loose on some occasions, and that while in that condition there is danger of entanglement with machinery which is being operated by the wearer;- and from their common experience and observation the jury were authorized to find that the defendant should reasonably have anticipated results of-that character in consequence of the improper alignment of the calf wheel with the pulley.

For the reasons noted, the assignment of error is overruled, and the judgment is affirmed.

CONNER, O. J., not sitting, serving on writ of error committee at Austin.
      ©=>Fi>r other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes