author: HIGHTOWER, C. J.

text:
    HALL v. HATTER.
    (No. 417.)
    (Court of Civil Appeals of Texas. Beaumont.
    Feb. 10, 1919.)
    1. Judgment <§=>199(1) — Judgment Non Obstante.
    Trial court could not have entered judgment in favor of plaintiff on his motion on the jury’s verdict, which was wholly adverse to him, practice of entering judgment non obstante veredicto having become obsolete.
    2. Assault and Battery <§=>42 — Self-Defense — Evidence.
    In action for assault and battery by creditor upon his debtor, evidence held insufficient to justify submission to jury of the special issue of self-defense.
    S.Appeal and Error <§=>1048(5) — Harmless Error — Question to Witness.
    Where plaintiff, suing for assault and battery, emphatically stated he had had no fights, in answer to interrogatory as to how many fights he had had since he had been in the city, overruling of plaintiff’s objection to interrogatory was harmless to him.
    4. Evidence <§=>129(5) — Witnesses <§=> 275(6) — Other Difficulties.
    In action for assault and battery, it .would not have been proper to admit testimony, even on plaintiff’s cross-examination, with reference to difficulties he might have had with other persons in no manner connected with defendant, and at other times.
    5. Assault and -Battery <§=>38 — Measure of Damages.
    In reaching amount of damages sustained through assault and battery, jury should consider physical and mental pain and suffering, reasonable value of surgical aid made necessary, reasonable value of medicine, etc., and necessary loss of time.
    6. Assault and Battery <©=>38 — Damages —Permanent Injury.
    In action for assault and battery, if evidence raises issue of permanent injury, and shows diminished capacity or ability on plaintiff’s part by reason of the assault, such elements should be considered as element of actual damages.
    7. Assault and Battery <§=>39 — Punitory Damages.
    In action for assault and battery,, if evidence shows assault was willful and unprovoked, jury may allow such sum by way of puni-tory or exemplary damages as they may think proper.
    8. Assault and Battery <§=>40 — Provocation — Amount of Damages.
    In determining damages, either actual or exemplary, to be awarded plaintiff for an assault and battery, jury may'consider manner and conduct of plaintiff toward defendant at time, of assault, and, if they amount to provocation, his damages, actual, exemplary, or both, should be reduced to proper sum.
    Appeal from District Court, Nacogdoches County; L. D. Guinn, Judge.
    Suit by J. Thomas Hall against S. B. Hay-ter. From a judgment for defendant, plaintiff appeals.
    Reversed, and cause remanded.
    Harris & Harris, of Nacogdoches, for appellant.
    S. W. Blount and S. W. Adams, both of Nacogdoches, for appellee.
   HIGHTOWER, C. J.

The appellant, J. Thos. Hall, sued appellee, S. B. Hayter, in the district court of Nacogdoches county to récover damages, both actual and exemplary, alleged to have been sustained in consequence of an assault and battery committed upon appellant by appellee. Actual damages were claimed in the sum of $2,500, and exemplary damages in the sum of $5,-000.

Appellee answered by general demurrer, general denial, and by special plea of self-defense. The case was tried with a jury, and was submitted on special issues, and resulted in a verdict and judgment for appellee. After the verdict was in, appellant moved the court for judgment in his favor, notwithstanding the verdict, which was adverse to him, and this motion was overruled, and appellant excepted, and assigns error in that connection.

This assignment of error will, of course, be overruled, for the reason that the court could not have entered judgment in favor of appellant upon the verdict, which was wholly adverse to him. The practice of entering a judgment non obstante vere-dicto, if it ever existed in Texas, has long since become obsolete,- and therefore the court did not err in refusing this motion.

Among other errors assigned by appellant is that directed against the action of the court in subniitting to the jury, by one of the special issues, appellee’s plea of self-defense; the complaint -in this connection being that there was no evidence upon which to base such an issue, and none which would authorize a finding by the jury in favor of appellee on that plea.

The plea of self-defense was submitted by the trial court in the form of a special issue for the finding of the jury, over the protest and objection of appellant, and the jury found that appellee, in committing the assault and battery which he did commit upon appellant, was acting in his own self-defense. After a very careful investigation and consideration of the entire evidence found in the record, we have concluded that there was none authorizing the submission of that issue to the jury, and, therefore, appellant’s assignment, complaining of the court’s action in submitting that issue, must be sustained.

There is no contention whatever that appellant struck, or attempted to strike, ap-pellee immediately before or at the time appellee assaulted and struck appellant, nor is there any evidence on the part of appel-lee, or any one else, that appellee even thought or expected tha;t appellant was about to assault him or injure him in any manner; indeed, the appellee does not even say that he apprehended that appellant intended to assault him, but he does say that he was angry on account of the insulting manner and conduct on the part of appellant at the time of the assault, and that he also supposed that appellant was angry at the time, and under such circumstances he •committed the assault and battery upon appellant, which is made the foundation of this suit. It seems from the record that appellant owed apipellee money, and had gone to appellee’s private office for the purpose, as appellant says, of paying this debt, and that a controversy arose between him and ap-pellee about the exact amount that was due, and there was some colloquy between them about this matter, which resulted in appel-lee striking appellant. But the evidence fails to disclose that appellant at any time struck appellee, and there is nothing in the evidence to indicate that appellant, by act ■or word at the time of the assault, did or said anything which was reasonably calculated to indicate to appellee that he was then in immediate danger of being assaulted by appellant. This being true, there was no basis in the evidence for the issue of self-defense, as submitted by the court, and it was error on the part of the court to submit such issue.

If, upon another trial, the plea of self--defense shall be insisted upon, and if the evidence should be such as to warrant a submission of that issue to the jury, the correct rule of law applicable, and which will guide % the court in the submission of the issue, will be found announced in the following cages: Railway Co. v. Pettit, 47 Tex. Civ. App. 354, 105 S. W. 42; Railway Co. v. Jopes, 142 U. S. 21, 12 Sup. Ct. 109, 35 L. Ed. 919; Chapman v. Hargrove, 204 S. W. 379. The rule announced in those eases is so clearly stated that no further elucidation is necessary at our hands.

There is another assignment by appellant, to the effect that the court erred in permitting appellee’s counsel to receive answers to the following interrogatory, while •appellant was on the stand as a witness:

“How many fights have you had since you have been here in Nacogdoches?”

This interrogatory and the answer thereto were objected to by appellant on the ground that it was improper, irrelevant, and immaterial, and the court overruled such ■objection. No harm resulted to appellant by this ruling, as is manifest from the record, because in answer to this interrogatory appellant emphatically stated that he had had no fights as inquired about. As a legal proposition, however, it would not be proper to admit testimony, even on cross-examination of the plaintiff himself, with reference to difficulties that he might have had with other persons in no manner connected with the defendant sought to be charged, and at other and different times. There may be instances where it would become material to show the general reputation of the plaintiff in an action of this kind for violence, etc., where the plea of self-defense is interposed, as here, and there should be evidence warranting a submission of that issue to the jury, but there is quite a difference between proof of general reputation on the part of .a plaintiff in actions of this character and the proof of specific and disconnected transactions and difficulties. We have said this much in order that this ground of complaint might be avoided if another trial should be had.

If upon another trial the status of the evidence should be the same, or substantially so, then the trial court might correctly instruct the jury that the assault and battery here complained of was not wholly justified, and the issue of self-defense should not be submitted; but in such event, the only issues for the determination of the jury would be the amount of actual damages to be awarded to the plaintiff, which he sustained directly and naturally in consequence of the assault and battery committed upon him, and in arriving at this, the physical and mental pain and suffering that was caused by the assault, the reasonable value of surgical aid that was made necessary in the treatment of the plaintiff, the reasonable value of medicines, etc., if any, that were made necessary by reason of the assault, and the necessary loss of time occasioned to plaintiff in consequence of his injuries, would all be taken into consideration, all of which the court will doubtless find no difficulty in correctly submitting for the jury’s determination. And also, if the evidence should be such as to raise an issue of permanent injury, by reason of the assault and battery, and should show diminished capacity or ability on the part of plaintiff, by reason of such assault and battery, then that should also be submitted and considered as an element of actual damages. And, further, if the evidence should be such as to show that the assault on the plaintiff was willful and unprovoked, then the jury should be instructed that they may in the exercise of their discretion, allow such a sum by way of puni-tory or exemplary damages as they might think proper under the facts and circumstances. The jury should also be instructed, however, that in determining the amount of damages to be awarded the plaintiff, either actual or exemplary, they might take into consideration the manner and conduct of the plaintiff towards defendant at the time of the assault, and if his manner and conduct were such as in the opinion of the jury amounted to a provocation on his part in bringing about the difficulty, then his damages, actual or exemplary, or both, should be reduced to such sum as in the opinion of the jury might seem proper.

There are no further assignments, a discussion of which would seem necessary. But for the error of the court in submitting the issue of self-defense, the judgment is reversed, and the cause remanded.
      <§=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: MOURSUND, J.

license: Public Domain

text:
    AMERICAN NAT. INS. CO. et al. v. VALEY RESERVOIR & CANAL CO. et al.
    (No. 6099.)
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 5, 1919.
    Rehearing Denied Feb. 26, 1919.)
    1. Appeal and Error ©==>387(3) — Appeal from'Order — Time for Perfecting Appeal.
    No appeal was perfected as to an order of sale made by the court on December 14th, at which time exception was taken and notice of appeal given, where the appeal bond was not filed until January 23d.
    2. Appeal and Error ©=>131 — Orders in Vacation — Appealability.
    Where the district court, in term time, en-tei'ed an order postponing the hearing on a motion to substitute receivers to a day certain beyond the term in another county, a provision in the order that the hearing should be had and considered as in term time did not operate to make the decision of the motion a judgment of the court from which an appeal would lie; Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 1714, 1726, not being applicable.
    3. Appeal and Error ©=>131 — Decisions Reviewable — Appealable Orders.
    An order made by a district court in vacation, removing receivers and appointing their successors, is not appealable in the absence of statutory provision, Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2079, providing for appeal from an order appointing a receiver, not applying.
    4. Appeal and Error ©=112 — Decisions Reviewable — Void Orders in Vacation.
    The fact that an order in vacation is void has no bearing upon whether or not it is ap-pealable.
    Appeal from District Court, Cameron County; W. B. Hopkins, Judge.
    Suit by the American National Insurance Company and another against the Valley Reservoir & Canal Company and others. Motion by J. R. Alamia and others, defendants, to substitute receivers. Granted, and plaintiffs appeal.
    Defendants’ motion to dismiss appeal granted.
    Denman, Franklin & McGown, of San Antonio, and Williams & Neethe, of Galveston, for appellants.
    Dougherty & Dougherty, of Beeville, E. P. Scott, of Corpus Christi, James B. Wells, of Brownsville, Samuel Spears, of San Benito, and G. R. Scott and Boone & Pople, all of Corpus Christi, for appellees.
   MOURSUND, J.

The American National Insurance Company and the San Antonio Loan & Trust Company instituted suit against the Valley Reservoir & Canal Company, the La Lomita Irrigation & Construction Company, the Edinburg Townsite Company, and John Closner and W. F. Sprague, individually and as members of the partnership doing business under the firm name of Closner & Sprague, and by amended petition included many persons as defendants who were alleged to be owners or claimants of debts against the original defendants or some of them. A number of persons who held claims intervened. The prayer in the original petition for the appointment of receiver was granted, and Prank Webb and E. C. Northern of Galveston county were appointed receivers.

On June 26, 1917, a decree of foreclosure was entered in said cause, disposing of all rights of all parties to the litigation, and provided for the sale of the properties on which a foreclosure was granted; such sale to be made by a master, who was to ascertain certain priorities of receivership certificates and report his action for confirmation of the court. After an order of sale had been issued as provided for in such decree, certain unsecured creditors, on November 3, 1917, filed a motion for an order setting aside portions of the decree. Appellees state that this was joined in by the defendants in the main suit, by separate pleading, ’but call attention to the fact that such pleading is not contained in the transcript. Plaintiffs filed an answer to such motion. Upon a hearing in chambers on November 5, 1917, the district judge made an order granting a postponement of the sale, and on December 14, 1917, entered an order reciting that evidence had been heard on said motion, and decreeing that so much of the decree of June 26, 1917, as directed the issuance of an order of sale be set aside, and that the provision for sales as under execution be also set aside, and that the assets be sold by the receiver at private sale and in parcels for cash or part cash and part credit, such sales to be confirmed by the court, but that no sale shall be made until the court shall have acted on the motion to substitute receiver.

On December 14, 1917, a motion was filed by J. R. Alamia and others to substitute receivers, and, an answer being filed thereto by plaintiffs, the court on said date entered an order continuing said motion and directing that said motion and other motions would be heard on January 3, 1918, in chambers, at Corpus Christ! On January 3, 1918, such hearing was had, evidence was heard on the motion to substitute receivers, and the same was granted, the former receivers removed, and directed to deliver all property belonging to any of the defendants to E. F. Rawson and A. A. Hughes who were appointed to succeed such ■ receivers.

The order provides:

“Said receivers shall have the power, under the control of the court: (a) To bring and defend actions in their own name; (b) to take immediate charge and possession of all of the property of each and dll of the defendants of every character whatsoever, real, personal and mixed, including choses in action of all kinds, especially notes and other evidences of indebtedness held as collateral security by creditors of said defendants or any of them; (e) to receive rents, collect, compound for and compromise demands; (d) to sell in separate tracts or parcels from time to time any of said property at private sale for cash, or part cash and part credit, as to them may seem best, whether real or personal property, subject to the confirmation of the court or the judge thereof, which confirmation may be had in vacation or term time on such notice as the court or judge may prescribe, and to convey, transfer and deliver the same to the purchaser or purchasers thereof, free from, or subject to, the liens of plaintiffs, defendants and interveners herein, as to the receivers may seem best, and receive the proceeds arising from such sales; (e) to release vendor’s liens; (f) to take immediate possession of, keep, maintain and operate all irrigation plants and properties of the defendants, whether belonging to one or more of them, under the direction of the court or the judge thereof; (g) to demand and receive from the receivers heretofore appointed and acting in this cause, and all other persons holding property of any character belonging to the defendants, or any of them, especially notes or other evidences of indebtedness, in the possession of said receivers heretofore appointed, or any other person or persons, as collateral security for any indebtedness of said defendants, or any of them, and to receipt for the same and to hold the same, or money collected thereon, or proceeds arising from the sale thereof, subject to such claims, liens and 'demands as may be determined by the court to exist against the same; (h) generally to do only such acts respecting said property as the court or judge thereof may from time to time authorize.”

The orders of December 14, 1917, and January 3, 1918, were excepted to by plaintiffs at the time they were rendered, and notice of appeal given, and on January 23, 1918, appeal bond was filed.

Appellees have filed a motion io dismiss the appeal, contending that tbe appeal bond was filed too late to perfect an appeal from the order of December 14, 1917, and that the order of January 3, 1918, is not appealable.

As the appeal bond was not filed until January 23, 1918, it is obvious that no appeal was perfected as to the order of December 14, 1917.

The order of January 3, 1918, recites that it was entered in chambers, at Corpus Christ! and purports to be an order by the judge. The order continuing the motion to substitute receivers and other motions set the same for a hearing “in chambers, at Corpus Christi, Nueces county, Texas,” and the court stipulated in said order that—

“The hearing hereon, being after the termination of the present term of court, shall be had and considered as if in term time, and all rights and defenses which might be urged in term time, and all orders which might then be entered, shall be of the same force and effect as if presented, adjudicated and entered in term time.”

Of course, the trial court could not by its order make a hearing in chambers equivalent to a judgment of a court. It is not contended by appellants that the court was extended under the provisions of article 1726 (Vernon’s Statutes), nor that the order was made by the district court of Cameron county as the result of an agreed trial in vacation under the provisions of article 1714 (Vernon’s Stat.), nor can it be held that the order was entered by the court under either of said statutes, for the district court of Cameron county cannot be legally held in Nueces county, and the order, if by the court, would be a nullity. Hodges v. Ward, 1 Tex. 244; Hdw. Co. v. Mfg. Co., 88 Tex. 468, 27 S. W. 100; Hunton v. Nichols, 55 Tex. 224. The order cannot be construed to be other than such as it purports to be, namely, one entered by the judge in vacation.

The Courts of Civil Appeals have no jurisdiction to entertain appeals from orders made by the judge in vacation unless it is expressly conferred by statute. The rule is clearly stated in the case of Pittman v. Byars, 100 Tex. 518, 101 S. W. 789, as follows:

“Though a judge of the district court may decide certain matters in vacation, and render judgment therein, yet such judgment, whether interlocutory or final, is not the judgment of the court over which he presides, but is merely his judgment as a district judge sitting in vacation. In such a case, unless a right of appeal be given by positive law, none exists.”

See, also, U. S. & Hex. Trust Co. v. Ry. Co., 46 Tex. Civ. App. 117, 101 S. W. 1048; Nat'l Surety Co. v. Castle Const. Co., 170 S. W. 800.

In the case of Thorne v. Moore, 101 Tex. 205, 105 S. W. 9S5, it is held that a district judge has the right to grant a mandamus in vacation, but that no appeal is conferred by statute from such an order. Appellants rely upon the case of Holland v. Preston, 12 Tex. Civ. App. 585, 34 S. W. 975, in which ais court called attention to the fact that, if no appeal could be taken from ae order therein considered, the party would be without a remedy, and set aside the order on ae ground that it was void. It must he remembered, however, that the order therein considered was entered in term time, and constituted a final judgment of a court. In the case of Williams v. Steele, 101 Tex. 386, 108 S. W. 157, cited by appellants, the appellate jurisdiction of the district court over the orders complained of was sustained on the ground that the statute authorized revision of the “proceedings of the County Court” in probate matters, and such language Was broad enough to include orders in vacation. The fact that an order entered in vacation is void does not affect the question whether it is appealable. Barker v. Wilson, 189 S. W. 748.

The power to appoint receivers is given to judges by article 2128 (Vernon’s Statutes), and it has been held that this authorizes an appointment in vacation. Hdw. Co. v. Mfg. Co., 88 Tex. 468, 27 S. W. 100; New Birmingham Iron Co. v. Elevens, 12 Tex. Civ. App. 410, 34 S. W. 828. That is the only article in our receivership statutes which confers power upon a judge, unless other articles wherein the word “court” is used can be construed to mean judge, or to include a grant to exercise powers in vacation. See articles 2133 and 2155. We have a statute which provides that a judgment may be amended in certain respects and under certain conditions in vacation. Article 2016 (Vernon’s Stat.). It has been held that a court has no power to amend or modify a judgment in vacation in any other respect than that mentioned in such statute. Segal v. Armistead, 25 Tex. Civ. App. 562, 62 S. W. 1073; Accousi v. Stowers, 83 S. W. 1104. There is no statute which permits appeals from orders of sale entered in a receivership in vacation or from an order in vacation amending or modifying a judgment. The only statute which can be urged is article 2079 (Vernon’s Statutes), which provides for an appeal from an interlocutory order of the district court appointing a receiver or trustee in any cause. It must be admitted that, if this article should be construed as strictly as some others, the right of appeal would be held to have been granted only from an order entered in term time, as it refers to the district court and not the judge. However, it has been treated as applying,to all orders appointing receivers in causes in the district court whether made in term time or vacation. The question arises whether an order removing receivers and appointing substitutes is an order appointing receivers within the meaning of such statute. This question was passed on in the case of McFarlane v. Greenameyer, 199 S. W. 304, and it was held that the statute did not grant the right of appeal from an order removing a receiver and appointing another. We concur in the opinion therein filed, and conclude that the appeal must also be dismissed as to the order of January 3, 1918.

The motion to dismiss appeal is granted.
      <&s>For other oases see same topic and KEY-NUMBER im all Key-Numbered Digests and Indexes


author: BRADY, J.

text:
    McDonald v. Wilson.
    (No. 6037.)
    (Court of Civil Appeals of Texas. Austin.
    Feb. 12, 1919.)
    Appeal and Error <@=>230 — Peremptory Instruction-Waiver op Objection.
    All error in giving peremptory instruction for appellee, as well as refusing peremptory instruction for appellant, is waived by appellant’s failure to object in the trial court to such charge or such refusal before the charge is read to the jury, as required by Rev. St. 1911, arts. 1971, 2061, as amended by Acts 33d Leg. c. 59 (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 1971, 2061),
    Appeal from McLennan County Court; James P. Alexander, Judge.
    Suit by C. L. McDonald against R. L. Wilson. From a judgment for defendant, plaintiff appeals.
    Affirmed.
    S. J. T. Smith, of Waco, for appellant.
    Nat Llewellyn and J. T. Hitching, both of Marlin, and J. D. Willis, of Waco, for ap-pellee.
   BRADY, J.

Appellant brought this suit against appellee to recover on a note dated October 10, 1912, and to foreclose a chattel mortgage on a piano, for which the note was a part of the purchase price; and which note was purchased, by appellant after maturity.

On the trial appellee admitted that he had never paid this note, and that he owed the debt for which it was given, and was ready, willing, and able to pay the same, but that his only reason for not doing so was that he had given certain other notes for the same debt, which were claimed by the original payee of the note in suit to have been lost or misplaced; the note sued on being itself given in substitution of certain of these other notes. The appellee further testified that these several notes were still outstanding, but in whose hands he did not know, and it appeared that all of said outstanding notes were probably barred by limitation at the date of.the trial. Thereupon appellant filed his trial amendment, offering to indemnify appellee against loss or damage by reason of the outstanding notes, and tendered him an indemnity bond in the sum of $850, which was by the court held to be a good and sufficient bond in amount, conditions, and solvency, but which was refused, because, under his view of the law, it could not be approved and accepted, and was no answer to appel-lee’s defense.

The court gave a peremptory charge to the jury to find a verdict for the appellee, which was returned in accordance therewith, and judgment was by the court entered thereon for appellee.

Appellant’s first and fourth assignments of error complain of the action of the trial court in giving the peremptory instruction for the -defendant, and his fifth assignment of the alleged error of the trial court in failing and refusing to give a peremptory instruction for appellant.

Appellant’s second and third assignments of error present the point that the trial court erred in rendering judgment on the verdict, because of the state of the undisputed evidence showing that the debt was due and unpaid, and that, when it developed upon the trial of the cause that other notes were outstanding, appellant offered to give a good indemnity bond to protect appellee. These are all the assignments in the record.

It does not appear from the record that, at the time the court gave the peremptory instruction in favor of appellee, the appellant made any objection thereto, nor that he objected to the refusal of the trial court to give the peremptory instruction requested by appellant; and we are of the opinion that under our statutes none of these assignments can be considered by this court, but that all have been waived by the failure of appellant to object to the court’s charge when given. The two assignments in form attacking the judgment of the court are in reality but attacks upon the verdict and the action of the trial court in giving the peremptory instruction. Under the law the court was required to either enter judgment on the verdict, or to set the same aside; and, if the appellant had waived his right to present any objections to the giving 'of the peremptory instruction, after the return of the verdict, it was not only proper for the court to enter judgment on the verdict, unless there were other material errors committed, but it was its duty to carry the verdict into judgment. The effect of the peremptory instruction, upon return of the verdict, was to require the trial court to enter judgment thereon. Therefore, all the assignments must stand upon the same basis, and the question whether any of them can be considered by this court is the same.

Chapter 59 of the Acts of the Thirty-Third Legislature, page 113, amended articles 1970 to 1974, inclusive, Revised Statutes, so as to require the judge to give a written charge to the jury, unless waived by the parties to the suit, and that said charge should be submitted to the attorneys for examination and objection, before being given to the jury. It is provided, in article 1971, that objections shall in every instance be presented to the court before the charge is read to the jury, * and it is expressly provided that “all objections not so made and presented shall be considered as waived.” This act also amends article 2061, Revised Statutes, so as to now read as follows:

“The ruling of the court in the giving, refusing or qualifying of instructions to the jury .shall be regarded as approved, unless excepted to as provided for in the foregoing articles.”

These articles of the statutes are mandatory, and if the giving of a peremptory instruction is within the purview of said articles, or either of them, appellant, not having objected to such charge in • the court below before or at the time it was given, has waived his right to object to any error in the giving of the same, and this court is without power to consider -such objection presented for the first time in the motion for new trial.

'We confess to have had some difficulty in deciding this question, especially in view of a conflict in the decisions of the Cburts of Civil Appeals.

It was held by the Court of Civil Appeals for the Seventh District, in Owens v. Corsicana Petroleum Co., 169 S. W. 192, that the above statute, providing that objections to the charge of the court not made in the trial court shall be deemed waived, does not apply to a peremptory instruction. A writ of error was granted by the Supreme Court in that case, but upon another point, and the case seems to have not yet been decided by the Supreme Court.

In Conn v. Houston Oil Co., 171 S. W. 521, the Court of Civil Appeals for the First District held that the rule requiring a charge to be excepted to in the trial court does not apply to a peremptory instruction on a- special issue, but the opinion does not refer to the statute which we have quoted. However, it was decided after the enactment of said stat-tute.

On the other hand, in Ry. Co. v. Wheat, 173 S. W. 974, the Court of Civil Appeals for the Second District decided that assignments of error, complaining of the refusal of the trial court to give a peremptory instruction, could not under the above statute be considered on appeal, where it is not shown that any objection or exception was taken in the court below to the refusal to give the charge. Chief Justice Conner referred to. the holding in Owens v. Corsicana Petroleum Co., supra, and pointed out that the peremptory instruction in the latter case was an oral charge, and that possibly it might be held that the legislative act would not be applied in said case, for that the same statute requires a charge to be in writing, and that counsel should be given reasonable opportunity to examine the charge and preseht objections thereto. In the course of the opinion Chief Justice Conner said:

“The act is not only explicit, but it is also mandatory in its terms. Nor is it limited to any particular character of charge. A peremptory charge to end the controversy by a verdict on the merits in favor of one of the litigants sbems certainly within the broad terms of the statute, and in its essence is a concrete statement on the part of the court of the controlling law of the case. In this state it has frequently been held that, to be available on appeal, éxceptión must be reserved to errors in the court’s general charge, as well also as to the refusal upon the part of the trial court to submit certain special issues.”

After citing numerous decisions on this point, including federal cases holding the rule to be the same in federal courts under a similar practice act, he concludes':

“So that we see no satisfactory reason for holding that the charge or instruction under consideration is not within the purview of the act of 1913, or why we should, as to it, disregard the mandate of the Legislature, to the effect that, in the absence of a proper exception, the action of the court in refusing it shall be regarded as approved.”

In Needham v. Cooney, 173 S. W. 981, the Court of Civil Appeals for the Eighth District also held that said act does apply to a peremptory instruction, and that an assignment would not be considered on appeal where objection' was not made below. Judge Higgins quoted with approval from Ry. Co. v. Wheat, supra, and approved the opinion in the latter'case in the following language:

“This reasoning seems to us to be conclusive, and'to hold that the act does not apply to a written peremptory charge would be in violation of the plain legislative mandate, and would by judicial construction impose an * exception not authoi'ized by its language. The words of a statute, if of common use, are to be taken in their natural, plain, and ordinary signification. 2 Lewis’ Sutherland, Statutory Construction (2d Ed.) § 358. Undoubtedly, ‘the charge to the jury on the law of the ease’ would embrace a peremptory instruction, as it is but a concrete statement by the court of the láw of the case and instruction to apply it. It may be that good reasons may be suggested why such an instruction should be excepted from the operation of the statute, but, if so, such exception must be made by the Legislature, and cannot be supplied by judicial construction.”

Judge Higgins further considered the point that the giving of a peremptory instruction raises the question of fundamental error, which was also raised in Ry. Co. v. Wheat; but in both these cases it was held not to be fundamental error, but, if it should be considered fundamental error, still under the terms of the statute it is waived, unless objection was made below in the manner prescribed.

In Needham v. Cooney, a writ of error was -refused by the Supreme Court (183 S. W. xvi). The writer has examined the original application for writ of error in that ease, and found that the applicant alleged the above conflict in decisions of the Courts of Civil Appeals on this question as a ground for jurisdiction of the Supreme Court, and cited these and other cases of several Courts of Civil Appeals, which it was claimed were in conflict thereon. Furthermore, the applicant assigned as one of his assignments of error that the Court of Civil Appeals had erred in. holding that objection must be made in the trial court to the giving of a peremptory instruction, or it will be waived and cannot be considered on appeal.

In Ry. Co. v. Feldman, 170 S. W. 133, this court, in an opinion by Chief Justice Key, held that an assignment, complaining of the action of the trial court in refusing to instruct a verdict for appellant, could not, by force of the above statute, be considered on appeal, where the record does not show that appellant excepted to the court’s refusal.

It is believed that the reasoning in Needham v. Cooney, and the other cases cited above which hold this statute applies to peremptory instructions, and that whether error in the giving of such a charge be regarded as fundamental or not, it is waived by a failure to object in the trial court, is conclusive; and we have decided to hold in accordance therewith, as we virtually held in Ry. v. Feldman, and Taliaferro v. Brady National Bank, 209 S. W. 174, decided by this court February 5, 1919, but not yet officially reported, that all error in the giving of a peremptory instruction in this case, as well as in refusing appellant’s requested instruction, was waived by appellant, in that the record fails to show that he made any objection in the trial court to such charge or to such refusal, before it was given to the jury. Therefore, the judgment will be affirmed.

Affirmed.
      @s^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HIGGINS, J.

text:
    LARKIN et al. v. PRUETT LUMBER CO.
    (No. 921.)
    (Court of Civil Appeals of Texas. El Paso.
    Feb. 20, 1919.)
    1. Schools üíb School Districts ©=81(2)— Municipal Contracts — Liability of Sureties.
    Acts 34th Leg. c. 143, § 2 (Vernon's Ann. Civ. St. Supp, 1918, art. 5623a), does not relate to bonds given in accordance with requirements of Acts 33d Leg. c. 99 (Vernon’s Sayles’ Ann. Civ. St. 1914, arts, 6394f-6394j), and sureties upon bond of contractor constructing school building for school district were discharged, where school district failed to retain 20 per cent, of contract price for 30 days, as required by building contract.
    2. Statutes <@=>181(1) — Construction — Intent.
    Although it is plain duty of courts in construing statutes to give effect to intent of lawmaking power and seek for that intent in every legitimate way, there is no room for construction when intention of Legislature is so apparent from face of statute that there can be no question as to its meaning.
    Appeal from District Court, Ward County; Chas. Gibbs, Judge.
    Suit by the Pruett Lumber Company against H. J. Larkin, G. W. Tom, and F. O. Aiken. From a judgment in favor of plaintiff, Tom and Aiken appeal.
    Affirmed as to Larkin, and reversed and rendered in favor of Tom and Aiken.
    S. W. Pratt, of Stanton, and Jno. B. Howard and Clay Cooke, of Pecos, for appellants.
    J. E. Starley, of Ranger, and J. A. Drane and W. A. Hudson, both of Pecos, for appel-
   Statement of Case.

HIGGINS, J.

On July 17, 1916, H. J. Larkin, contractor, entered into a written contract with common school district No. 1, of Bars tow, Tex., owner, whereby the contractor agreed to construct and complete a school building. The owner agreed to pay the contractor $15,249 on certificates of the superintendent from time to time as the work progressed, to wit, 80 per cent, of the estimated value of the same, estimated upon material furnished and labor performed, payments to be made every 15 days. It was provided in the contract that 20 per cent, of the contract price was to be held by the owner as security for the faithful completion of the work and to be applied under the direction of the architects in the liquidation of any damages under the contract, also furnishing to the owner a release from any lien or right of lien. It was also provided that 10 per cent, of the contract price was to be retained by the owner for 30 days, as required by law for the protection of labor. To secure the performance of this contract, Larkin gave a bond in the sum of $7,500, payable to common school district No. 1, Ward county, Tex., as well as to all persons who might furnish labor or material on the contract mentioned. The bond expressly provided that it was made for the use and benefit of all persons who might furnish labor or material on said contract The bond was signed by G. W. Tom and F. O. Aiken as sureties. Larkin entered upon the performance of his contract, and it seems that in large measure completed the construction of the building, but did not entirely complete the same, and the owner was obliged to complete its construction. While in the performance of his contract, Larkin drew more than 80 per cent, of the contract price as provided in the contract, and that the owner failed to retain 20 per cent, of the contract price until the completion of the building. The Pruett Lumber Company, appellee, furnished Larkin material for use in construction of the building. On December 18, 1917, appellee filed this suit, against Larkin, Tom, and Aiken to recover a balance of $1,250.83, due for material furnished in the construction of the building, and upon trial before the court without a jury recovered judgment as prayed for. From this judgment, the sureties, Tom and Aiken, prosecute this appeal.

Opinion.

Appellant presents eight assignments of error, but under our view of the case, it is necessary to consider the eighth assignment only, which presents the proposition that the sureties were released by reason of the failure of the owner to retain 20 per cent, of the contract price, in accordance with the terms of the contract.

In Bullard v. Norton, 107 Tex. 571, 182 S. W. 668, Norton brought suit upon a contractor’s bond, and it was there held that the sureties upon the bond were discharged because the owner had failed to retain 20 per cent, of the contract price for 30 days, as was required by the building contract. Under the authority of that case and of other cases in this state of like nature, it must be held that the sureties, Tom and Aiken, are not liable to the appellee herein, unless- there be merit in the contention of -appellee that the rule announced in the case cited has been changed by the provisions of section 2, c. 143, Acts 34th Legislature, Regular Session, p. 223 (Vernon’s Ann. Civ. St. Supp. 1918, art. 5623a). By an act of the Thirty-Third Legislature, passed at its regular session (chapter 99, p. 185 [Vernon’s Sayles’ Ann. Giv. St. 1914, arts. 6394f-6394j]), it was provided that any person or persons, firm or corporation, entering into a formal contract with this state or its counties or school districts oi other subdivisions thereof, or any municipality therein for the construction of any public building or the prosecution and completion of any public wort shall be required, before commencing such work, to execute the usual penal bond with good and sufficient sureties, with the additional obligation that such .contractor or contractors shall promptly make payments to all persons supplying him or them with labor and materials in the prosecution of the work provided for in such contract. This act further provides that any person, company, or corporation who has furnished labor or materials used in the construction or repair of any public building or public work, and payment for which has not been made, shall have the right to intervene and be made a party to any action instituted by the state or any municipality, on the bond of the contractor, and to have their rights and claims adjudicated in such action and judgment rendered thereon. If no suit is brought by the state or municipality within six months from the completion and final settlement of the contract, then such person is to be furnished with a copy of the contract and bond upon which such person shall have a right of action for his use and benefit, and may prosecute same to judgment. Other provisions of this act need not be noticed.

It will be noted that this last-mentioned act in no wise relates to the construction of buildings upon which a materialman might fix a lien, but to buildings of a public nature upon which liens cannot be fixed. The act relied upon by appellee amends article 5623, tit. 86, c. 2, of the Revised Statutes, which title and chapter relates to liens of mechanics, contractors, builders, and materialmen, and adds articles 5623a and 5623b to said title and chapter. The act in full reads as follows:

“Section 1. That article 5623, title 86, chapter 2, Revised Civil Statutes of the State of Texas, 1911, be and the same is hereby amended so as to hereafter read as follows:
“Article 5623. Any person, firm or corporation who may furnish any material to or perform any labor for any contractor, subcontractor, building or improvement, or to repair any house, building or improvement, or to construct any railroad, or its properties, by giving written notice to the owner or his agent of such house, building or improvement, or the railroad company, its agent or receiver, of each and every item furnished, and by showing how much there is due and unpaid on each bill of lumber or material furnished, or labor performed, by such person, firm or corporation, or at any time within ninety days after the indebtedness shall have accrued, may fix and secure the lien provided for in this chapter as to the material or labor furnished at the time or subsequent to the giving of the written notice above provided for, by filing in the office of the county clerk of the county in which such property is located, and if it be a railroad company in any county through which its road may pass, an itemized account of his or their claim as provided in this article, and cause the same to be recorded in a book kept by the county clerk for that purpose. Said owner, railroad company, its agent or receiver, shall cause to be executed a written contract for such erection, repair or improvement, and cause same to be filed with the county clerk of the county where the property is situated, and shall also cause to be executed and filed with said county clerk before the work is begun, a good and sufficient bond by said contractor, conditioned as hereinafter provided; and when said bond and contract shall be so executed and filed, the said owner, railroad company, its agent or receiver, shall in no case be compelled to pay a greater sum for. or on account of labor performed, or material, machinery, fixtures or tools furnished, than the price or sum stipulated in the original contract between such owner and contractor.
“Sec. 2. That article 5623a be added to title 86, chapter 2, Revised Civil Statutes of Texas, 1911, to read as follows:
“Article 5623a. The owner, railroad, receiver or his agent shall take from every contractor described in this chapter a good and sufficient bond in the sum of at least the full amount of the contract price, where said contract price is equal to or less than one thousand dollars; three-fourths of the contract price where said contract price exceeds one thousand dollars, but does not exceed five thousand dollars; one-half the contract price where said contract price exceeds five thousand dollars, but does not exceed one hundred thousand dollars; and one-third of the contract price where said contract exceeds one thousand dollars, payable to the said owner, railroad or receiver. The condition of said bond shall be the true and faithful performance of the contract, and the payment of all subcontractors, workmen, laborers, mechanics and furnishers of material by the undertaker, contractor, master mechanic or engineer, the said bond to be made in favor of the owner, subcontractors, workmen, laborers, mechanics and furnishers of material as their interest may appear, all of who'm shall have the right to sue upon said bond; and regardless of the provisions or wording of any such bond, said bond shall be construed by the courts, whether so specified or not, to guarantee the true and faithful performance of the contract and the payment of all claims of each and every subcontractor, workman, laborer, mechanic and furnisner of material against the undertaker, contractor, master mechanic or engineer, and it shall guarantee the payment of such ¿aims, regardless of whether or not they are secured! by any lien. Suit may be brought on said bond by the owner, subcontractor, workmen, laborers, mechanics and furnishers of materials, or any of them, and they and eách of them shall have the right to recover on said bond in the same manner as if the bond were made payable directly to them. Suit on such bond may be brought in the county where the owner resides or where the work is performed, and at any other place provided by law. No change or alteration in the plans, building, construction or method of payment shall in any way avoid or affect the liability on said bond, and the sureties on said bond shall be limited to such defense only as the principal on said bond could. make.
“See. 3. That article 5628b be added to title 86, chapter 2, Revised Civil Statutes of the State of Texas, 1911, to read as follows:
“Article 5623b. The provisions of articles 5623 and 5623a shall not- be construed to deprive or abridge materialmen, artisans, laborers or mechanics of any rights and remedies now given them by law, and by other articles of this chapter and the provisions of said articles 5623 and 5623a shall be cumulative of the other provisions of this chapter.
“Sec. 4. rvothmg in this act shall be construed to fix a greater liability against the owner than the price or sum stipulated to be paid in the contract between such owner and contractor.”

It will be noted that this act, upon its face, clearly refers to title 86, chapter 2 of the Revised Statutes of 1911. It does not in any wise purport to relate or refer to the act of the Thirty-Third Legislature. That portion of the act of the Thirty-Fourth Legislature relied upon by appellee is the concluding portion of section 2 thereof, which reads:

“bio change or alteration in the plans, building, construction or method of payment shall in any way avoid or affect the liability on said bond, and the sureties on said bond shall be limited to such defenses only as the principal on said bond could make.”

We do not think that the act of the Thirty-Fourth Legislature relates to bonds given in accordance with the requirements of the act of the Thirty-Third Legislature. The caption of the act of the Thirty-Fourth Legislature and the act itself plainly shows that it related to the bond required to be given in the second section of the act, and did not relate to bonds which might be given under other statutory provisions. The particular portion of the act relied upon by appellee refers to “said bond,” and “said bond” is the bond mentioned in the preceding portion of section 2. The third section of the act says that it is cumulative of the other provisions of this chapter, which seems to indicate that it was not to be regarded as cumulative of provisions of law not contained in that chap-iter. We need not discuss the various rules of statutory interpretation invoked by ap-pellee in support of the contention that it was the intention of the Thirty-Fourth Legislature to embrace within the scope of the act a bond of the nature here considered. It is, of course, the plain duty of the courts, in construing statutes, to give effect to the intent of the lawmaking power and seek for that intent in every legitimate way, but when the intention of the Legislature is so apparent from the face of the statute that there can be no question as to its meaning, there is no room for construction. It is not allowable to interpret what has no need of interpretation. The language of the Thirty-Fourth' Legislature, it seems to us, plainly, clearly, and distinctly shows that an amendment to title 86, c. 2, of the Revised Statutes was intended, and the scope of the statute cannot be extended by judicial interpretation so as to include a bond given under another provision of law. The letting of contracts for public buildings and requirements of bonds therefor and the manner of action upon such bonds are regulated by the act of the Thirty-Third Legislature. From the language of the act of the Thirty-Fourth Legislature, it seems clear that it does not relate to a bond given under the act cK the Thirty-Third Legislature. This being true, the failure of the owner to retain the 20 per cent, of the contract price as provided by the contract released the, sureties.

Affirmed as to Larkin; reversed and here rendered in favor of Tom and Aiken.
      other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: JENKINS, J.

text:
    HUGHITT v. TRENT.
    (No. 6062.)
    (Court of Civil Appeals of Texas. Austin.
    Feb. 19, 1919.)
    Limitation of Actions @=>118(2) — Suspension of Period — Filins of Petition.
    Filing a petition with instructions not to issue citation thereon until further instructed, or until some future time, does not suspend the running of the statute of limitations.
    Appeal from District Court, Mills County; F. M. Spann, Judge.
    Action by Frank Hughitt against D. H. Trent. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    Robert L. Russell, of Goldthwaite, for appellant.
    J. C. Darroeh and L. E. Patterson, both of Goldthwaite, for appellee.
   Findings of Fact.

JENKINS, J.

Appellee made an affidavit charging appellant ’ with an offense against the criminal laws of this state, and appellant was arrested upon a warrant issued upon said affidavit. The prosecution against appellant was dismissed in the county court of Mills county, December 6, 1915. Appellant filed his original petition with the clerk of the district court of Mills county December 4, 1916, wherein he sought to recover damages against appellee for malicious prosecution. This petition was signed by appellant in personam. The period of filing suits of this character is twelve months, so that the petition was filed two days before the action was barred by limitation. But on account of the absence of appellee from the state during the months of August and September, 1916, the period of limitation did not expire until February 6, 1917.

When appellant presented his original petition to the clerk of the district court of Mills county, said clerk informed appellant that he would require him to give a cost bond before citation would be issued. Thereupon appellant instructed said clerk not to issue citation until he (appellant) employed an attorney, as he wanted an attorney to examine his petition.

Appellant employed an attorney, who filed an amended original petition on September 12, 1917, and citation was issued September 13, 1917. Appellant had not requested the clerk to issue citation prior to that time. At the date of the issuance of said citation, ap-pellee was again out of the state, having gone to New Mexico in August previous, where he remained during the months of August and September, 1917. But the full period of limitation had expired on February 6th, prior to appellee leaving the state in August.

Appellee pleaded the statute of limitation in bar of appellant’s cause of action, and judgment was rendered for appellee on said plea.

Opinion.

Appellant has not copied .any of his assignments in his brief, as required by rules 29 and 30 (142 S. W. x). We might, under authority of rule 45, set aside the submission herein, and require appellant to file a proper brief herein; but it is apparent from the facts hereinabove set out that the court could not properly render any judgment other than was rendered.

Filing a petition with instructions not to issue citation thereon until further instructed, or. until some future time, does not suspend the running of the statute of limitation. Ricker v. Shoemaker, 81 Tex. 28, 16 S. W. 645.

Finding no error of record, the judgment of the trial court is affirmed.

Affirmed.
      gmoFor oilier oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: FLY, O. J.

text:
    WESTERN UNION TELEGRAPH CO. v. FERGUSON BROS.
    (No. 6169.)
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 19, 1919.)
    1. Telegraphs and Telephones <®=o54(5)— Error in Transmission — Unrepeated Message — Validity op Stipulation.
    ■ Stipulation 'limiting telegraph company’s liability for error in unrepeated message does not exempt the company from liability, where error in transmission was due to company’s negligence, but merely requires proof by sender that company was negligent.
    '2. Telegraphs and Telephones <®=j66(4)— Error in Transmission — Negligence-Evidence.
    Transmission of message so that the word “here” read “there”‘was not evidence in itself sufficient to justify finding that telegraph company was negligent in transmission of message.
    3. Telegraphs and Telephones <⅜^66(1)— Error in Transmission — Negligence.
    Though error in transmission of message may be so gross as to be prima facie evidence of negligence, the mere fact that there may have been an error in the message as received is not of itself sufficient proof of negligence, and the burden is on plaintiff, in such cases, to show negligence.
    Appeal from Frio County Court; S. T. Dowe, Judge.
    Action by Ferguson Bros, against the Western Union Telegraph Company. Judgment for plaintiffs, and defendant appeals.
    Reversed, and judgment rendered.
    C. A. Goeth, of San Antonio, for appellant.
    Ryan & Matlock, of San Antonio, for ap-pellees.
   FLY, O. J.

Appellees sued to recover damages in the sum of $178.54 from appellant in the justice’s court, and, a judgment being rendered for them therein, an appeal was taken by appellant to the county court, where a like judgment was rendered for appellees.

The suit is based on the failure to deliver the following telegram sent by appellees to E. E. George & Co., of Memphis, Tenn.:

“Subject unsold offer ear number one yellows dollar forty here. Answer quick.”

That cryptic message seems to have been intended to convey the information to E, B. George & Co. that appellees would sell them á carload of yellow onions at $1.40 a crate in Pearsall, Tex. When the message was delivered, the word “therei” had been substituted for the word “here,” and it was accepted by the purchasers as it read when they received it. The change caused the necessity of appel-lees’ paying the freight on the onions, from Pearsall to Memphis, if they wanted George & Co. to take the onions, which amounted to $178:54. One of the conditions on the back of the telegram was:

“The company shall not be liable for mistakes or delays in the transmission or delivery, or for the nondelivery of any unrepeated telegram, beyond the amount received for sending the same.”

Appellees knew of this condition of the contract when they sent the telegram, and the message was accepted and transmitted by appellant subject thereto.

The only question in this case is: Was the condition just, reasonable, and binding on ap-pellees under the facts of the case? In the case of Western Union Telegraph Co. v. Neill, 57 Tex. 283, 44 Am. Rep. 589, which seems to have been the pioneer Tesas case on the subject, after discussing the status of telegraph companies, it was held:

“In accordance with these principles, and which have been often recognized by the legislative departments also, it may now be considered as settled law that telegraph companies can, by express contract, or by proper rules and regulations, contained in printed notices or otherwise, and brought to the knowledge of those with whom they deal under such circumstances as to create an implied contract, limit their liability for delays and errors in transmitting and delivering messages, except when caused by the misconduct, fraud, or want of due care on. the part of the company, its servants or agents. In cases of this character, that exemption from liability cannot be claimed for such misconduct, fraud, or want of due care, is a cardinal doctrine of the common law, which has become deeply rooted into our own jurisprudence, and the wisdom of which has received the sanction of ages.”

That case has been cited a number of times and never questioned. Womack v. Tel. Co., 58 Tex. 176, 44 Am. Rep. 614; Railway v. Wilson, 69 Tex. 739, 7 S. W. 653; W. U. Tel. Co. v. Hearne, 77 Tex. 83, 13 S. W. 970.

In the case of Postal Tel. Co. v. Sunset Const. Co., 102 Tex. 148, 114 S. W. 98, the court adhered to the ruling in the Neill Case, but held that, while the burden was on the plaintiff to show negligence, the error in the transmission of the message in that case was sufficient to prove negligence. The effect of all the cases is to clothe the condition in the telegram, as to repeating, with such force as to require proof of negligence in the transmission, and it is not laid down as the rule in the case last cited that an error in transmission is always proof of negligence, for that would destroy the rule enunciated, that the condition as to repeating is reasonable and binding on the sender. The error in transmission may be so patent and apparent as to be proof of negligence in itself, and that is what was held by the Supreme Court.

The rule governing in this case is thus forcibly stated, in his clear and logical way, by Associate Justice Neill, for this court, in W. U. Tel. Co. v. Robertson, 59 Tex. Civ. App. 426, 126 S. W. 629:

“While a telegraph company may limit its liability for an unrepeated message, the limitation cannot be extended so as to relieve it from the consequences of its negligence, for when the plaintiff has proved negligence on the part of the telegraph company in transmitting the telegram, and that damages were proximately caused by such negligence, such a stipulation in regard to repeating the message, as was pleaded by defendant in this case, amounts to nothing; or, in other words, the contract is as though it contained no such stipulation.”

The, error in this case was adding a letter to the word “here,” so as to make it “there,” and that was the only evidence of negligence on the part of appellant.

We do not think that of itself is sufficient to justify a finding of negligence on the part of appellant. As said in Womack v. Tel. Co., 58 Tex. 176, 44 Am. Rep. 614:

“It has been repeatedly decided, and such is the rule adopted by this court; that the mere fact that there may have been an error in the message as. received would not of itself be sufficient proof of negligence to entitle a plaintiff to recover, as the error may reasonably be attributed to some other cause.”

That rule is modified in that opinion, as has been done herein, by holding that an error might be so flagrant in the transmission of a telegram as to constitute negligence in itself, livery case, however, must depend upon its own facts. In this case the error is one that might have crept in, without negligence, from the freaks of electricity that are unaccountable, or other causes not controllable. It would be utter folly to hold that the condition as to repeating messages was reasonable and that the burden of proving negligence rested on the plaintiff, if every error in transmission of a message was sufficient evidence of negligence. The two rulings would be utterly inconsistent and destructive of each other. Error in transmission might be so gross as to be prima facie evidence of negligence, and that would be as far as a court could go if the rule that the stipulation as to repeated messages is reasonable, and that the burden is on the plaintiff in such cases to show negligence, is to be maintained.

The judgment is reversed, and judgment here rendered that appellees take nothing by their suit, and pay all costs in this behalf expended.
      ¿SsjFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: 'HIGHTOWER, C. J.

text:
    TREVATHAN v. G. M. HALL & SON.
    (No. 395.)
    (Court of Civil Appeals of Texas. Beaumont.
    Feb. 25, 1919.
    Rehearing Denied March '5, 1919.)
    1. Appeal and Error <£=>544(1) — Matters Review able — Preservation oe Objections.
    Appellate court may consider assignment complaining of action of trial court in refusing plea of privilege, although appellant did not prepare and have approved and file a formal bill of exceptions at term same was acted upon; it being sufficient that appellant prepared and had approved and filed statement of facts in connection with his privilege, and upon final trial prepared and had approved and filed a formal bill of exceptions.
    2. Venue <£=>7—Place of Trial—Sales.
    Order for potatoes to be shipped to N. county held not to constitute contract in writing to pay for potatoes in N. county, so as to prevent buyer from having seller’s' action for price removed to county of defendant’s domicile.
    3. Action <©=>50(4) — Joinder of Causes of Action — Parties Involve®. ,
    A cause of action upon a written contract for price of potatoes could properly be joined with a cause of action for damages against any one or more defendant railway companies for negligence, if any, in a shipment of the potatoes.
    4. Interest <©=>44— Recovery of Purchase Price.
    In action for purchase price of potatoes to be shipped by carrier, it was error to allow a recovery for interest for any period of time prior to actual shipment or prior to seller’s compliance with contract.
    5. Interest <©=>66 — Purchase Price — Pleading.
    In action for purchase price, plaintiffs may recover interest without a special prayer therefor, especially where there is a plea for general relief.
    6. Interest <©=>39 (1) — Purchase Price.
    In action for purchase price of personalty, where there is nothing to indicate with reasonable certainty date upon which personalty was to be paid for, no interest should be allowed prior to judgment.
    Appeal from Nacogdoches County Court; J. F. Perritte, Judge.
    Suit by G. M. Hall & Son against S. E. Trevathan and others. From judgment for plaintiffs, the named defendant appeals.
    Reformed and affirmed.
    Marshall & Marshall, of Nacogdoches, for appellant.
    Harris & Harris, of Nacogdoches, for ap-pellees.
   'HIGHTOWER, C. J.

This cause comes here by appeal from a judgment of the county court of Nacogdoches county.

The appellees, G. M. Hall & Son, plaintiffs below, filed this suit originally against appellant, S. E. Trevathan, and the Houston East & West Texas Railroad Company as defendants, and afterwards and before trial, the Texas & New Orleans Railroad Company, Ft. Worth & Denver ^Railway Company, and Texas & Pacific Railway Company were made parties defendant by appellees; it being alleged by appellees that they were connecting carriers of the defendant Houston East & West Texas Railroad Company, and were connected with the shipment of the potatoes in question, etc.

The appellees are residents of Nacogdoches county, Tex!, and the appellant, Trevathan, is a resident of Wilbarger county, Tex., and the Houston East & West Texas Railroad Company and the Texas & New Orleans Railroad Company operate a line of railroad into and through Nacogdoches county, and each has a local agent in the town of Nacogdoches, in that county.

In order to show jurisdiction over appellant, Trevathan, in Nacogdoches county, it was alleged substantially:

(1) That appellant contracted in writing with appellees to pay for said potatoes at Ap-pleby, in Nacogdoches county.

(2) It was alleged, substantially, by appel-lees that appellant was claiming as his excuse for not paying for said potatoes according to the contract price that said potatoes, when they reached their destination in Wil-barger county, were found to be considerably damaged and practically rotten, and further that they were not of the kind which appellant had offered and contracted to buy, and in this connection appellees alleged that this lot of potatoes was delivered to the Houston East & West Texas Railroad Company at Ap-pleby, Tex., and that when so delivered to said railroad company they were perfectly sound and in good condition, and were of the kind and character called for in the written order and contract of appellant, Trevathan, but that, in the event it should be ascertained upon the trial that said shipment of potatoes was damaged, as contended by appellant, Trevathan, and for that reason acceptance of said potatoes was refused, that then such damages occurred after said potatoes were delivered to said railroad company, and that such damage was caused by negligence on the part of said Houston East & West Texas Railroad Company and its connecting carriers, and appellees prayed that in the event it should be determined that appellant, Treva-than, was not liable to them for said potatoes on account of their damaged and rotten condition, that then appellees have judgment against said railroad companies for the value of said potatoes.

In due and proper time appellant, Treva-than, filed his plea of privilege to be sued in Wilbarger county, the county of his domicile, properly denying that he had contracted in writing to pay for said potatoes in Nacog-doches county, and praying that as to him the venue of the suit be changed to the county of his domicile.

Appellant, Trevathan, also filed an answer, which contained general and special exceptions, among others he specially excepting on the ground of misjoinder of parties, as well as misjoinder of causes of action, and that there was no common liability shown against hifn with the other defendants in Nacogdoch-es county, and also appellant interposed special pleas of misjoinder of parties and causes of action. He also denied generally the material allegations in appellees’ petition, and further specially alleged, substantially, that when said potatoes reached Vernon, in Wil-barger county, the place of their destination, they were badly damaged and rotten, and practically worthless, and also that they were not of the variety of potatoes ordered by him from appellees, and his said contract to buy, specifying in this connection the difference between the variety and kind ordered and that shipped, and further alleged that the damage to the potatoes, their rotten condition, etc., was due to the fact that thpy had been improperly loaded in the car at Appleby, Tex., and that they were loaded when they were wet and damp, and in improper sacks, all of which was alleged to be the. fault of ap-pellees, and in breach of their contract with appellant. Though there were several amendments by the parties before the case was finally reached for trial, still appellant at all times renewed his plea of privilege and his exceptions and pleas relative to the misjoin-der of parties and causes of action.

At the first term of the court convening after the plea of privilege was filed by appellant, his plea of privilege was presented to the court and evidence heard thereon, and the same was overruled by the court, to which ruling appellant duly excepted, and had his exception noted on the docket, but failed to prepare and file a formal bill of exceptions to the court’s ruling on his plea of privilege at that term. Appellant did, however, prepare, have approved, and cause to be filed a statement of facts in connection with his plea of privilege, all of which was done during the term of court at which the plea was overruled, which was the January term, 1917. Final trial was not had until the November term, 1917, and at that term appellant prepared and presented and had approved and filed a formal Bill of exceptions to the action of the court in overruling his plea of privilege at the January term.

All of the railway company defendants filed answers, and thereafter amended, and each adopted, among other things, appellant’s plea to the jurisdiction of the court. These defendants each also interposed general and special demurrers, unnecessary to mention, and specially denied any liability to appellees because of any negligence on their part in handling said shipment of potatoes, as claimed by appellees.

When the case was called for final trial, appellees dismissed as to the Texas & Pacific Railway Company, and the court overruled appellant’s exceptions and pleas raising the issue of misjoinder of causes of action and of parties, to all of which appellant duly excepted. The case proceeded to trial on its merits, with a jury, and resulted in a judgment in favor of appellees against appellant for the sum of $202, together with interest thereon at the rate of 6 per cent, per annum from the ISth day of November, 1⅝16; and the court further by its decree awarded to appellees judgment for $140, which had been tendered and deposited in court by the defendant Ft. Worth & Denver ‘Railway Company, and which represented the proceeds of the shipment of potatoes in question received by that railway company upon sale of such potatoes after appellant had declined to receive the shipment.

In all other respects and as to all defendant railway companies still before the court a verdict was peremptorily instructed in their favor, to which action neither appellant nor appellees excepted.

The first assignment of error found in appellant’s brief complains of the action of the-trial court in refusing to sustain his plea of privilege. His contention in this connection is that the written order for the potatoes in question was not a contract in writing on his part to pay for said potatoes in Nacogdoches county.

Appellees object, and contend that this court should not and cannot consider this assignment, for the reason that appellant did not prepare and have approved and filed a formal bill of exceptions to the action of the court in overruling his plea of privilege at the term the same was acted upon, and that, because of such failure on appellant’s part, he has no right to assign error to the action of the court in overruling his plea of privilege.

While we are aware that this contention on the part of appellee has support in several holdings made by Courts of Civil Appeals of this state, yet we are of the opinion that such ruling in those cases was not correct, but that the holding to the contrary in Holmes v. Coalson, 178 S. W. 628, is decisive of this point against the contention of appellees. We have therefore considered appellant’s first assignment of error challenging the correctness of the ruling on his plea of privilege.

The only writing found in the record which it could be contended constituted a written promise by appellant to pay for the potatoes in question in Nacogdoches county is the order given by appellant to appellees, reading as follows:

“Vernon, Tex., November 18, 1916.
“6. M. Hall & Son, Appleby, Texas — Gentlemen: We are in receipt of your letter quoting first class sweet potatoes at 55 cts. per bushel in bulk, or 60 cts. sacked. If you can get us a minimum car of good stuff we can use them. We are not familiar with some of the potatoes grown in East Texas, but would want nothing but the yellow potatoes, such as the Nancy Hall, pumpkin yam, or other variety of good yellow sweet potatoes. It takes about 375 bushels for a minimum car, and we would want that many, as the freight would be higher in less than carloads. In packing these potatoes, please be Careful not to use meat sacks, as the salt causes them to rot. If you see you can get us a car by the middle' of the coming week, please wire us Monday morning. We would like for you to give this matter your personal attention, as it is necessary that we get first-class stuff in order to handle produce in quantity lots.
“Tours respectfully, S. E. Trevathan.”

This written order given by appellant to appellees did not constitute a contract in writing to pay for the potatoes ordered in Nacogdoches county. Cameron v. Webb, S Willson, Civ. Cas. Ct. App. § 417; Elliott on Contracts, vol. 2, § 1825, and authorities there cited; Casey v. Carr, 148 S. W. 601. If, therefore, appellees’ right to sue appellant in Nacogdoches county depended alone upon this written order, the trial court would have been in error in overruling appellant’s plea of privilege.

The fourth, fifth, and sixth assignments of error are grouped, and are asked to be considered together. These assignments relate to the action of the trial court in overruling appellant’s exceptions raising the point of mis-joinder of parties and causes of action. These assignments are followed by one proposition, as follows:.

“The cause of action against defendant Tre-vathan was upon a written contract for the purchase price of potatoes, and could not properly be join.ed with a cause of action for damages against any one or more defendant railway companies for negligence, if any, in the shipment of the potatoes.”

Under the authority of Kemendo v. Fruit Dispatch Co., 61 Tex. Civ. App. 631, 131 S. W. 73, we think the appellees were authorized to make the railway companies sought to be held as defendants parties to this suit, and especially the Houston East & West Texas Railroad Company, and that such railroad company being a proper party defendant with appellant in this case, appellant’s contention of misjoinder of parties and causes of action must be overruled, and that appellant was suable in Nacogdoches county, with other proper defendants to the action. These assignments, as well as Nos. 2 and 3, are therefore overruled.

This case was submitted to the jury upon one special issue as follows:

“Did the plaintiffs, Q. M. Hall & Son, ship to the defendant S. E. Trevathan a car of good sound potatoes, of pumpkin yam, Nancy Hall, and other yellow varieties, properly loaded and in a suitable car? You will answer this issue ‘Yes’ or ‘No.’ ”

In this connection the court instructed the jury that the burden of proof was upon the plaintiff. To the issue thus submitted the jury answered “Yes.”

If it be true, as found by the jury, that the potatoes, when loaded on the car by appel-lees at Appleby, Texas., were good and sound potatoes, and were of the pumpkin yam and Nancy ITall and other yellow varieties, and that such potatoes were properly loaded in a car suitable for that purpose, then appellees fully complied with the written contract or order of November IS, 1916, hereinbefore mentioned, and upon this point we hold that the evidence in the record, which seems to have been given credence by the jury, was amply sufficient to warrant the finding on this point, and to establish liability on the part of appellant to appellees for the contract price of these potatoes, regardless of their condition when the shipment reached Vernon. This, in effect, disposes of assignments 7, S, 9, 10, and 11 which are grouped in appellant’s brief, and relate to the action of the court-in refusing certain special issues requested by appellant.

The twelfth assignment of error complains of the court in overruling appellant’s motion duly filed to correct the judgment against appellant, in so far as the same allows interest upon the amount recovered against him from the 18th day of November, 1916; the contention in this connection being that the court has allowed interest by its judgment from a date even prior to the date of shipment of the potatoes in question, and upon inspection of the record we find that this contention is true. The order for the potatoes, as hereinbefore shown, was dated November 18, 1916, but, as best we can tell from the record, the potatoes were not loaded or shipped before November 25th. It will be seen, therefore, that the court was in error in allowing a recovery for interest for any period of time prior to the actual shipment of the potatoes by appellees, or prior to their compliance with the contract, by loading the potatoes on the car at Appleby, Tex., even if interest could be recovered from that day. But we are ndt sure that under the contract in this case interest could be recovered until the shipment, in the usual course and time, reached appellant at Vernon, Tex. The record is so indefinite, so far as proof is concerned, as to when payment for these potatoes was to be made, that we are unable to tell, and we are unable to see how the trial court could determine, the date from which interest should be allowed.

It does not follow, however, that appellant is right in his contention that no interest at all was recoverable prior to judgment, because not specially prayed for by appellees; for we are of the opinion that on a cause of action of this character, as between appel-lees and appellant, interest would be allowable as a matter of law without a special prayer therefor, if the date for the payment of the principal sum could be reasonably determined from the evidence, especially so where there is a prayer, as here, for general relief.

We are sure, however, that interest was not recoverable from November 18, 1916, and since there is .nothing to indicate with reasonable certainty the date upon which these potatoes should have been paid for, we are of the opinion that the trial court was in error in allowing any interest prior to judgment in this case, and should have granted appellant’s motion to correct the judgment, in so far as interest was allowed.

Therefore it is the duty of this court to sustain the twelfth assignment of error, and, in view of the attitude of the record, to hold that the trial court was in error in allowing any interest prior to judgment in the case. The assignment will therefore be sustained, and the judgment of the trial court will be corrected and reformed so as to allow judgment in favor of appellees against appellant for the sum of $202, with interest thereon from the 22d day of November, 1917, at the rate of 6 per cent, per annum, until such time as the judgment shall be satisfied, and in all other respects the judgment will be affirmed.

Because of the error of the trial court in refusing to correct the judgment as to interest allowed, the costs of this appeal will be adjudged against appellees.

Judgment reformed and affirmed.
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author: HALL, J.

text:
    TUNNELL et al. v. JOHNSON.
    (No. 1488.)
    (Court of Civil Appeals of Texas. Amarillo.
    Feb. 26, 1919.)
    1. Homestead @=>214 — Head of Family — Evidence.
    Evidence held sufficient to sustain finding that judgment debtor with two granddaughters constituted a family within meaning of Constitution, although parents of granddaughters were living.
    2. Judgment <&=777 — Liens—Vendob’s Lien Notes.
    A judgment creditor )ias no lien upon vendor’s lien notes held by judgment debtor from sale of land after rendition of judgment, and cannot invoke equitable powers of court and through instrumentality of an injunction and receivership subject them to payment of judgment.
    Appeal from District Court, Dallas County ; W. P. Whitehurst, Judge.
    Suit by Mrs. L. Johnson against Mrs. Sarah Tunnell and others. Judgment for plaintiff, and the defendants appeal.
    Affirmed.
    W. D. Cardwell and McOutcheon & Church, all of Dallas, for appellants.
    J. D. Fouraker and Claude M. McCallum, both of Dallas, for appellee.
   HALL, J.

Appellee, Mrs. Johnson, filed her petition seeking to enjoin appellant Mrs. Tunnell and George Patterson, constable of Dallas county, from selling lots 8 and 9, in block 12, of Oak Cliff Annex, under an execution issued out of the county court at law of Dallas county, upon a judgment previously rendered in favor of appellants against appellee. The injunction was sought upon the ground that the property levied upon was appellee’s homestead. A temporary writ was granted, which upon final hearing was perpetuated. Appellee was the only witness who testified. In the course of her testimony it was shown that at the time of the trial she owned and was in possession of two notes secured by vendor’s lien on a vacant lot which she had previously sold to a third party, and since the judgment was rendered against her in favor of appellant. By leave of the court, counsel for appellant was permitted to file a trial amendment, praying that, in the event the property levied upon should be adjudged to be the homestead of appellee and exempt from forced sale, than that the court make an order appointing a receiver to take charge of said vendor’s lien notes, collect the same, and under the order of the court apply the proceeds to the satisfaction of the judgment. The court declined to enter any such order, and from this judgment, which also decreed that the injunction be perpetuated, the appeal is perfected. The material portion of Mrs. Johnson’s testimony is as follows:

“I live at No. 336 King’s Highway, Oak Cliff; have been living there three years. My two granddaughters, 15 and 17 years of age, respectively, are living with me. They have been living with me three years. I have three lots, viz., lots 7, 8, and 9, in block 12. My house and garage is on lot 7. We use the other two for a garden. I bought lots 8 and 9 March 6, 1911, from the Interstate Suburban Realty Corporation, and lot 7, July 30, 1914, from Mrs. Norwood, and moved on this lot the following October. I have been living there ever, since. Have had a nice garden on the rear end of lots 8 and 9 ever since I have been there and have one this year. There is a lawn tennis court on the front end of the lots, and the garden is on the back part. I have always used them, and am using them now. When I purchased lots 8 and 9, I had plans made to build on them. These are the plans I had made for the house. At the time I bought them I had a widowed daughter, Mrs. Smith, with one child, living with me. I got possession of my two granddaughters in 1913. My son, their father, had shot himself through the leg and was an invalid for a long time, and he gave me the two girls. I was running a boarding house at 605 Masten street. He gave the two girls to-me and said possibly he could take care of the other three children. The girls have been with me ever since 1913, and I have maintained, supported, and taken care of them so far. Their father and mother have not contributed anything to their support. I have kept them going to school, and they aré in school now. This property is my means of support. We have some boarders. At the time I moved into the house on lot 7, Mrs. Tunnell’s suit was not filed. The tennis court was there then. In the spring of 1915 I planted a garden on the rear of the two lots. I had not built a fence around them. More than half of the two lots is used for a garden. The lot upon which my residence stands has a fence around it. My children are all grown and married, and were when I moved into the house. My son never lived in Texas; he lives in Mississippi. I have never taken any steps to adopt the two granddaughters legally. I merely have my son’s word for it that X could have the children. I sold the lot across the street after Mrs. Tunnfell had secured ¿he judgment against me in the county court, and have the purchaser’s two notes, aggregating $750, now in my possession. The notes are a lien upon the lot across the street. My granddaughters’ parents have never taken them away from me since they came here.”

It is said in the case of First National Bank of Orange v. Sokolski, 150 S. W. 313, that—

“It is settled by all authorities that, in order to constitute a family within the meaning of the homestead law, it is not necessary that there be a legal obligation on the part of the person claiming to be the head of such family to support, or furnish a home for, the other members. It is enough that there be a moral obligation to do so.”

It is true,' as contended by appellant, that the proof of the moral obligation resting upon appellee in the instant case is not as strong as that resting upon the grandmother in the Sokolski Case. While it was shown that the father had accidently shot himself and was an invalid for several years, it does not appear that he was utterly worthless and incapacitated to take care of his children, or that his wife was unable to do so; but the trial court was authorized to infer that the care and custody of the two girls was intrusted to the grandmother because their father and mother were, not able to properly care for them together with their three remaining children. We believe the evidence, taken as a whole, brings this case fairly within the rule announced in the Sokolski Case, and is sufficient to sustain the court’s findings that the grandmother with the two granddaughters constituted a family within the meaning of the Constitution. The case of Phillips et al. v. Price et al., 12 Tex. Civ. App. 408, 34 S: W. 784, is one in which a granddaughter, with her parents’ consent, had lived with her grandmother, by whom she' was supported until the grandmother’s death. After the death of the grandmother, the granddaughter endeavored to claim the homestead as a member of the family. Williams, Justice, said:

“In a number of cases in which the question as to the exemption from forced sale of the h.omestead during the life of the owner was involved, courts have held that others than children of the owner might constitute a ‘family,’ within the sense of the Constitution and laws extending such exemption. Wolfe v. Buckley, 52 Tex. 641; Whitehead v. Nickel-son, 48 Tex. 539; Ramey v. Allison, 64 Tex. 700. Other cases might be cited in which the doctrine last stated has been fully recognized. It does not follow that after the death of the owner, to whom the exemption during his life was thus secured, any person whose presence in his household has helped to constitute a family and to give rise to the exemption can hold the property against his creditors.”

The effect, therefore, of the presence of the two girls in the home of their grandmother, is to constitute such a family as to bring it within the exemption and that the exemption exists for her benefit. A writ of error was refused in the Sokolski Case by the Supreme Court, and upon that case as authority we sustain the holding of the trial judge.

In subsequent assignments it is contended that the court erred in not appointing a receiver for the two vendor’s lien notes held by appellee and ordering them collected by the receiver for the purpose of satisfying the judgment. Appellant had acquired no lien whatever upon the notes and is in no position to invoke the equitable powers of a court and through the instrumentality of an injunction and a receivership subject such property to the payment of her judgment. Carter Bros. v. Hightower, 79 Tex. 135, 15 S. W. 223; Gulf National Bank v. Bass, 177 S. W. 1021.

There is no error in the judgment, and it is affirmed.
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