author: PLY, C. J.

text:
    STRACHBEIN v. GILMER.
    (No. 5988.)
    (Court of Civil Appeals of Texas. San Antonio.
    March 13, 1918.
    On Motion for Rehearing, April 17, 1918.)
    1. Appeal and Error <&wkey;1058(2) — Harmless Error — Exclusion oe Testimony.
    Exclusion of testimony is harmless; the same witness having elsewhere given substantially the same testimony.
    2. Appeal and Errior <&wkey;232 (2). — Review-Objections Below.
    Testimony cannot be complained of on appeal as hearsay; such objection not having been made below.
    3. Appeal and Error <&wkey;1050(l) — Harmless Error — Admission oe Evidence.
    Admission of plaintiff’s testimony of a.conversation with a third person was harmless; such person having testified .thereto without objection.
    4. New Trial &wkey;>102(l) — Newly Discovered Evidence — Diligence.
    One is not entitled to new trial for newly discovered evidence; lack of diligence in not discovering it before being apparent.
    5. New Trial <&wkey;105 — Newly Discovered Evidence — Impeaching Evidence.
    Newly discovered evidence which is merely impeaching is not ground for new trial.
    6. Appeal and .Eruor &wkey;>981 — Review—Denial oe New Trial.
    A clear abuse of discretion in denying a new trial for newly discovered evidence must appear, that such action may be revised.
    On Motion for Rehearing.
    7. Appeal and Error <&wkey;742(l) — Assignment oe Error — Propositions and Statement.
    A reference to the record for a statement is not a compliance with the rule for briefing that an assignment of error be followed by propositions and statement.
    8. Appeal and Error &wkey;1052(2) — Harmless Error — Admission oe Evidence.
    Admission of testimony was harmless, the same evidence having, been given by other witnesses without objection.
    Appeal from District Court, Edwards County ; C. E. Dubois, Judge.
    Action by Jess Gilmer against W. C. Strachbein. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    J. W. Hill, of Uvalde, H. C. Geddie, of Kerrville, and Prank H. Booth, of San Antonio, for appellant. L. J. Wardlaw, of Sonora, J. E. Priestmen, of Rock 'Springs, and»W. H. Lipscomb and Will A. Morriss, both of San Antonio, for appellee.
   PLY, C. J.

Appellee sued appellant to recover commissions alleged to be due for the sale of certain lands listed with appellee for sale. The cause was submitted to a jury on special issues, and on the answers thereto judgment was rendered for appellee in- the sum of $3,132.27, with legal interest from January 1, 1916, amounting in the aggregate to $3,403.72.

It is not clear from the brief of appellant when the terms of the district court of Edwards county were held under the law in force previous to the act of March 9, 1917, which created the eighty-third district and changed the times of holding court in Edwards county, but by an inspection of the old and new laws, to which we are referred by the brief of appellee, we ascertain that Edwards county was formerly a part of the Thirty-Eighth district, and held its terms in June and December of each year. The act of March 9, 1917, provided for terms in Edwards county on tie last Monday in January and August of each. year. Tie law went into effect from date, and it is apparent tiat under its provisions only one term of court could be ield in Edwards county during tie year 1917, and tiere is some difficulty in determining iow iolding a term in June under tie old law would give two terms, unless anotier term was ield under tie new law in August or under tie old law in December, and then begin on tie new law in January, 1918. However, this is not tie question before this court.

If tie term of court could be held in Edwards county under tie old law, tie fact tiat it might deprive Pecos county of a part of its term under tire new law is a matter of no importance, because if Edwards county was entitled to tie term under tie old law, tie .only question that could arise in this case would be met. Tie only question before this court is as to tie validity of tie term of court ield in Edwards county. This question is answered in tie affirmative by the case of Bowden v. Crawford, 103 Tex. 181, 125 S. W. 5. We overrule tie first assignment.

Tie second and third assignments of error are overruled. We fail to see the pertinency or materiality of tie testimony excluded by tie court. Appellant did not state tiat ap-pellee claimed to own the Benton place, and if he had made such claim, if appellant had listed iis property with appellee, as tie latter ■testified and agreed to pay him a commission to sell the same, what he might have done if he had known tiat tie place which appellee showed him belonged to some one else would be immaterial. Appellant admitted tiat appellee told him when they were about halfway to tie land tiat it belonged to Benton, and still he went on and looked at tie place and negotiated with Benton. Tie testimony excluded would pot have thrown tie least light on tie transaction. Whether appellant knew tiat appellee was a land agent or not, he must have known that he was seeking to obtain remuneration for his services, or he would not have been calling him on tie telephone and taking him out in automobiles to look at lands. Tie testimony clearly showed tiat appellant had made appellee iis agent to sell the lands, tiat he procured purchasers, and tiat appellant sold to them. Appellee swore to tie agency, and he was corroborated by Williams, Benton, Henry, and Wardlaw. Several of appellant’s witnesses testified to matters tiat tended to show tiat he had employed appellee to sell his land.

Tie testimony of J. A. Winn, which tie court excluded, was testified to by him, in substance and effect, several times in iis testimony, and the exclusion of tie evidence, set out in tie fourth assignment, could not, by any possible means, have injured appellant. The testimony of Winn, which shows that tie exclusion of tie evidence was harmless, is in part set out in tie brief of appellant. If appellee was tie agent, he was undoubtedly tie procuring cause of tie sale, whether Winn thought he induced him to buy or not. Winn swore tiat appellee never talked to him about tie land and had no connection with tie sale, and he could add nothing to tiat testimony.

Tie only objection urged to tie testimony made tie basis of tie fifth assignment was tiat appellant was not present; tiat it was self-serving, and tie agency of tie plaintiff was not admitted, but denied, and the evidence was prejudicial. -Tie first proposition is that, tie agency being an issue, it was error to admit tie declarations of tie agent tiat tie land was listed with him for sale. Tie bill of exceptions fails to show tiat such testimony was offered by appellee or objected to by appellant. Tie second proposition is tiat tie evidence was hearsay and inadmissible. No such objection was made to the evidence, and tie proposition has no basis.

Tie sixth assignment of error is too general and indefinite to be considered, and is not followed by any propositions.

Tie evidence of Benton is attacked in tie seventh assignment of error on tie ground tiat it was self-serving and prejudicial to defendant. How it was self-serving and prejudicial does not appear from the assignment or tie propositions under it; in fact, tie propositions are not germane to tie assignment or supported by it.

Tie eleventh assignment of error complains of tie exclusion of testimony of J. A. Winn tiat Cloudt had never said anything to him about having any connection with Gilmer. No one said tiat he had, and tie testimony was clearly inadmissible. However, Winn testified, in substance, to tie same matters which are claimed to have been excluded, for he stated: “Mr. Cloudt did not at any time, in my presence, say anything to Mr. Stracibein about a commission to Gilmer on this deal to me. Mr. Cloudt never at any time claimed to be representing Gilmer and helping him sell the land to me.”

The thirteenth assignment of error complains of tie admission of a conversation between appellee and A. J. Williams, which was objected to on tie ground that it was hearsay and self-serving. Tie conversation between Williams and appellee was in regard to a conversation Williams had with appellant through a telephone, and ap-pellee asked Williams and was' told what Strachbein had sa'id. The same conversation was detailed by Williams without objection on tie part of appellant. While tie evidence objected to should not have been admitted, still, in view of tie testimony of Williams, we do not think appellant was injured by tie admission of tie conversation between ap-pellee and Williams, as detailed by appellee.

Appellant, among otter things, sought a new trial on the ground of newly discovered evidence of J. A. Winn and Frank Oloudt, to the effect that appellee had, before he instituted his suit, proposed to them that they should help him “skin old Strachbein out of a commission,” and that in consideration for their help appellee would pay them out of any amount recovered from appellant the sum of $500. This suit was filed in May, 1916, and was tried in June, 1917; the two witnesses named had been willing, loyal, and helpful witnesses for appellant, and were thoroughly and exhaustively examined during the trial, and yet within two days after judgment was rendered the two witnesses disclosed some remarkable testimony which they had kept locked in their bosoms up to that time. The affidavits were denied by appellee, and the court heard the contest and decided against appellant. The court had the witnesses before him, and was in a good position to decide whether the affidavits were probably true, and it is so improbable that, if the affidavits were not a fabrication, the substance of them would not have at once been communicated to appellant that the court was justified in refusing to grant the motion for new trial. The rules as to new trials on the ground of newly discovered evidence are that the evidence has been discovered since the trial, and could not by reasonable diligence have been sooner discovered, that it is not merely cumulative, and that it was not for the purpose of impeachment. The lack of diligence is apparent, and the evidence could have no ob j ect except the impeachment of appellee. The granting of new trials for newly discovered testimony is largely a matter of discretion with the trial judge, and in order for an appellate court to revise the action of the trial court, there must appear a clear abuse of such discretion. Kaack v. Stanton, 51 Tex. Civ. App. 495, 112 S. W. 702; Railway v. Clifford, 148 S. W. 1163. It was a singular circumstance that both of the witnesses swore that they had not told about appellee’s proposition because they thought “it was too bad to tell.”

The evidence is ample to sustain the verdict of the jury. Appellee did the work for appellant; he procured parties willing, ready, and able to purchase, and they purchased. Appellant received the benefit of the labors of appellee, and the jury very properly required him to pay for the services.

The judgment is affirmed.

On Motion, for Rehearing.

The eighth assignment of error is not followed by propositions or statement. A reference to the record for a statement is not a compliance with the rules for briefing, as has been often held. It is not disclosed in the assignment of error who testified to the matters to which objection was. taken, and what was objected to is not shown by any statement taken from a bill of exceptions.

The ninth assignment of error fails to disclose what the conversations with Benton were, and it is not disclosed in any statement; there being none. It is not followed by a proposition. If there were anything in either of them to require any consideration, it was disposed of under the sixth and seventh assignments.

The evidence objected to in the tenth assignment of error is without merit. It could not have injured appellant; but, if it could, the same evidence was given by other witnesses without objection. Appellant did not deny raising the price of the land from $5.25 to $5,50 an acre. Getting the assistance of Oloudt to sell to Winn was testified to by Oloudt, as well as appellee, and without objection. Appellant did not deny, as was stated by Oloudt, that he refused to furnish an abstract of title. Oloudt swore that he wanted Winn for a neighbor, as testified by appellee. In fact, in substance, the whole of appellee’s testimony to which objection was urged was testified to by Oloudt and other witnesses without objection on the part of appellant. The tenth assignment is without merit.

The motion for rehearing is overruled.
      <te»Eor other cases see same tonic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: TALBOT, J.

license: Public Domain

text:
    WALDROP v. GOLTZMAN.
    (No. 7923.)
    (Court of Civil Appeals of Texas. Dallas.
    March 30, 1918.)
    1. TROVER AND CONVERSION <&wkey;36 — EVIDENCE —Advanced Price.
    In suit for ,the conversion of scrap iron purchased by plaintiff, plaintiff’s testimony that between the time of his purchase and the time of defendant seller’s alleged conversion the price of scrap iron had advanced was admissible to show a reason for the alleged conversion.
    2. Trover and Conversion &wkey;>39 — Market Value — Evidence.
    In suit for the conversion of scrap iron purchased by plaintiff of defendant, letters addressed to plaintiff and purporting to have been signed by an iron and metal company, stating what such company would pay for scrap iron, were inadmissible to show the market value of the iron at the time and place of the conversion, since evidence of isolated sales or offers to sell or offers to purchase at a certain price are inadmissible to establish market value.
    3. Evidence <&wkey;489 — Trover and Conversion &wkey;?34 (2) -r Market Value — Proof — Witness.
    In cases of conversion of personal property, the market value of the property at the place and date of conversion must be shown to warrant recovery, and a witness to such value must show he was acquainted with the market value of the property at such time and place as a prerequisite to admission of his testimony.
    4. Evidence &wkey;>155(8) — Admission of Evidence-Authorization.
    In suit for conversion of scrap iron purchased by plaintiff from defendant, the fact that it was developed on cross-examination, that plaintiff had in his’ pocket letters from an iron company offering so much a ton for scrap iron, and was called on by defendant’s attorney to let him see them, who then proceeded to ask questions as to plaintiff’s knowledge as to who wrote them, etc., did not authorize the submission of such letters in evidence by plaintiff; defendant objecting all the time to their introduction.
    5. Appeal and Error &wkey;>302(l) — Assignments op Error — Support by Motion por New Trial.
    Assignments of error complaining of matters not embraced in appellant’s motion for new trial in the court below will not be considered.
    Appeal from Freestone County Court; G. W. Fryer, Judge.
    Suit by Max Goltzman against R. H. Wal-drop. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    D. T. Garth, of Teague, for appellant. Gep-pert & Wroe, of Teague, for appellee.
   TALBOT, J.

The appellee sued the appellant, alleging, in substance, that he purchased 40 tons of scrap iron, consisting of cast iron, old stoves, steel rods, iron parts of plows and wagons, etc., from appellant at and for the sum of $142.50; that a part of the scrap iron was sold to appellee at $4 per ton, and the balance at $3.50 per ton; that he made two payments of $20 and $50, respectively, thereon ; that by the terms of the contract of purchase appellant was to hold possession of the property for appellee until the same could be loaded on cars at Teague,' Tex., when the balance of the purchase price, $72.50, was to be paid; that on November 29, 1916, appellee tendered to appellant the said $72.50, and demanded possession of the scrap iron; that appellant not only failed and refused to deliver said property, but then and there converted the same to his own use and benefit. Appellee further alleged that the reasonable market value of the scrap iron at the time and place of its conversion by appellant was $7 per ton, or in the aggregate $280. Ap-pellee’s original petition was filed November 30, 1916. On the same day he sued out a writ of sequestration which, according to the officer’s return, was levied immediately upon 40 tons of scrap iron of the description of that mentioned in the petition. Appellant replevied the property as authorized by statute, giving bond in the sum of $520, with J. R. Chumney and J. 0. Williams as sureties, and sold and shipped the same to parties at Waco, Tex., from whence it was shipped to some point in Colorado. After the levy of the writ of sequestration and the date of the officer’s return indorsed thereon it seems some question arose as to whether 40 tons of scrap iron had been in fact seized by said writ, and appellee, on the 25th day of January, 1917, filed an amended original petition in which he alleged, in addition to the matters stated above, that at the time he paid appellant the $50 mentioned appellant represented to him (appellee) that he (appellant) had on hand the 40 tons of scrap iron, and that in making the said payment of $50 on the purchase price thereof appellee believed and acted on said representation, and that in the event appellant did not have 40 tons of scrap iron as represented, and there were less than 40 tons sequestrated, appellee owned and was entitled to the possession of such of said scrap iron as had been sequestered, and asked that in ease appellant failed to return the same to abide the judgment of the court he (appellee) have judgment against appellant and his bondsmen for the value of said property sequestrated, and against appellant “individually for the sum of the difference in the amount of-40 tons and the amount defendant (appellant) had on hand, at the sum of $3.50 per ton which was plaintiff’s (appellee) profit per ton, and that the defendant be given credit on said last amount for said sum of $72.50,. which plaintiff owes defendant.”

The appellant pleadfed a general denial and specially, in substance, that on May 8, 1916, he had on hand about 8 tons of scrap iron, and agreed to sell the same to appellee for $4 per ton; that appellee agreed to buy and deposited with him (appellant) $20, to be forfeited in the event áppellee failed to take the scrap iron by the 1st day of June, 1916; that in the meantime scrap iron declined in value, and appellee refused to take the eight tons which he had agreed to take, and forfeited to appellant the deposit of $20; that thereafter, on the 30th day of October, 1916, appellant had about 28 tons of scrap iron which appellee agreed to purchase at $3.50' per ton, and put in appellant’s hands as a forfeit $50, agreeing to load the scrap iron in cars on the following Monday, and to pay the remainder of the purchase price when so loaded; that on the day the scrap iron was to be loaded appellee came to appellant and stated that he could not sell the iron for what he had agreed to pay for it, and was therefore forced to abandon his proposed purchase and forfeit to appellant the $50 deposited with him; that appellee and appellant then entered into an agreement to the effect that appellant was to sell the scrap iron and account to and pay appellee all that scrap iron sold for over and above the amount which he (appellee) had agreed to pay for'it; that, acting under this agreement, appellant sold the scrap iron for the amount appellee had agreed to pay for it, thereby saving to appel-lee the $50 which he had put up as a forfeit. Appellant further alleged that on the day the agreement stated was entered into appellee purchased from him 50 bushels of apples at $1.10 per bushel, and paid thereon $32 cash, leaving a balance of $23 due appellant; that after deducting this balance appellant was indebted to appellee in the sum of $47, which he tendered to appellee before the filing of this suit, and which was by appellee refused.

The case was submitted to the jury on a general charge, and the jury returned a general verdict in favor of appellee for the sum of $145, less the $23 alleged by appellant to be due on the purchase of the apples. Judgment in accordance with the verdict of the jury was rendered, and the appellant perfected an appeal to this court.

The first assignment of error is to the effect that the trial court erred in permitting the appellee to testify that between the time of his purchase and the time of appellant’s alleged conversion the price of scrap iron had advanced. The admission of this testimony furnishes no sufficient ground for a reversal of the case. The substance of appellant’s objections to its admission was that such testimony could not properly be received to prove the market value of the property alleged to have been converted on the day of the alleged conversion, and while it may be conceded that ordinarily such is the rule, yet the qualification of the bill of exceptions reserved to the court’s ruling shows that the testimony complained of was offered and admitted, not for the purpose of showing the market value of the scrap iron, but to be considered by the jury only in so far as it might tend to show a reason for the alleged conversion of the scrap iron by the appellant. It was not error, we think, to admit the testimony for that purpose, and it is not likely that the jury considered it for any other purpose to the prejudice of appellant’s rights.

The second assignment of error complains of the court’s action in admitting in evidence two letters dated Ft. Worth, Tex., December 4, 1916, and December 9, 1916, respectively, addressed to the appellee at Mexia, Tex., and purporting to have been signed by Missouri Iron & Metal Company, per L. Cohn. The letter of December 4, 1916, so far as is necessary to state, is as follows:

“We have yours of recent date, and as per your request we are inclosing you a price list on metals, rubbers, and rags. If our prices are satisfactory they must be accepted by return mail and ship immediately. For good country mixed iron clean from all light material we can pay you $7.25 per net ton f. o. b. Mexia, Texas, if loaded on T. & B. V. You must have 40,000 pounds and over.”

The letter dated December 9, 1916, reads thus:

“We have yours of recent date and will give you $7.50 per net ton for good country iron, free from uncut boilers steel ranges and all other light and worthless material. You may ship the car to the Colorado Fuel & Iron Co., Minne-qua, Colorado, route T. & B. Y. Ft. Worth & Denver and C. & S. This car must be loaded in open coal car. We will honor your draft at the rate of 90 per cent., balance of your money when we get reports from the mill. If this is satisfactory please advise us by return mail.”

These letters were introduced by appellee for the purpose of showing the market value of the scrap iron at the time and place of the alleged conversion. They were inadmissible for that purpose, and, so far as disclosed by the record, for any other purpose, and should have been excluded. The market value of the scrap iron was a controverted issue, and could be established only by competent evidence. The offer of the authors of the letters in question to pay appellee the amount stated therein is not such evidence. They constitute simply the private communication of the writer’s 'willingness to pay ap-pellee for scrap iron similar to that involved in this suit, $7.50 per ton in the one" instance, $7.25 in the other, upon certain conditions, and are strictly ex parte. They do not even purport to state the market value of such iron. The conditions referred to, as expressed in the letter of December 4, 1916, are that the scrap iron should be “good country mixed iron, clean from all light material,” loaded on cars, not at Teague, Tex., where the conversion complained of is alleged to have occurred, but at Mexia, Tex.; that there must be 40,000 pounds of the iron or more; and that the offer be accepted by return mail, and the iron shipped immediately. As expressed in the letter of December 9, 1916, the conditions are that the iron be loaded, as required in the letter of December 4th, on cars at Mexia, Tex.; that it be “good country iron, free from uncut boilers steel ranges and all light and worthless material”; that it be loaded in open coal cars; that only 90 per cent, of the purchase price be paid cash; and that notification of the acceptance of the proposition be given by return mail. Furthermore, it does not appear that the writer of the letters was acquainted with the market value of the scrap iron alleged to have been converted by appellant at Teague, Tex., the place of conversion, on the date it is alleged to have been converted, and hence qualified to give testimony of such value. The rule is too well established to require the citation of authority that in cases of conversion of personal property the market value of the property at the place and on the day of conversion is essential to a recovery, and that a witness called to testify as to such value must, as a prerequisite to the admission of his testimony, show that he was acquainted with the market value of the property at such time and place. It has been held that evidence of isolated sales or offers to sell are not admissible to establish market value. Hammond v. Decker, 46 Tex. Civ. App. 232, 102 S. W. 453. Likewise offers to purchase at a certain price are not admissible. The extent to which the contents of these letters may have influenced the jury in arriving at their verdict cannot be known. But they were inadmissible, and if they had any weight, it likely prejudiced the rights of appellant. At all events, we are not prepared to say their admission was harmless. The fact that it was developed on cross-examination that ap-pellee had the letters in his pocket and was called on by appellant’s attorney to let him see them, and then proceeded to ask some questions as to the appellee’s knowledge as to who wrote them, etc., did not authorize their submission in evidence by the appellee. The record shows without dispute that appellant objected all the time to their introduction.

There are assignments of error complaining of matters that were not embraced in appellant’s motion for a new trial in the court below. They will not therefore be considered. We will take occasion to say, however; that if the case is again tried, the court’s charge should more accurately conform to the pleadings and evidence than does the charge found in the record now before us.

Eor the error indicated, the judgment is reversed, and the cause remanded.

Reversed and remanded.
      For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <g^cFor other cases see same topic and KEY-NTJMBER. in all Key-Numbered Digests and Indexes


author: RICE, J.

text:
    SAN ANTONIO & A. P. RY. CO. v. McGILL et al.
    (No. 5819.)
    (Court of Civil Appeals of Texas. Austin.
    Nov. 7, 1917.
    Rehearing Denied Feb. 27, 1918.)
    1. Railroads &wkey;>400(8) — Injuries to Persons on Tracks — Jury Question.
    In an action for the death of one run down while on defendant railroad company’s tracks, evidence of the negligence of those in charge of the company’s trains held sufficient to go to the jury.
    2. Railroads &wkey;>376(4) — Injuries to Persons on Tracks — Defenses.
    Where the operatives of a train discovered the presence of a trespasser on the tracks in a perilous position, they are only required to exercise ordinary care in the use of all means within their power consistent with the safety of the train to avoid injuring him, and are not required to do everything in their power to stop the train.
    3. Trial <&wkey;253(9) — Injuries to Persons on Track — Instructions—Propriety.
    In an action for the death of a trespasser on the track run down by defendant’s train, an instruction that the railroad company owed him no duty except to use all the means within its power consistent with operation of its train to avoid injuring him after his peril was discovered, and that if the engineer discovered the trespasser’s position of peril in time to have stopped the train before striking him, and after realizing the danger negligently failed to use all means at his command to stop the train without endangering the train or those thereon, verdict should be for plaintiffs, is erroneous because depriving the jury of all consideration of the testimony by the engineer that, on discovering the presence of deceased, he gave alarm signals.
    4. Railroads @=^401(7) — Injuries to Persons on Tracks — Actions—Instructions.
    In an action for the death of a trespasser run down by defendant’s train, an instruction that if the engineer, after discovering deceased and knowing his position of peril, exercised ordinary care to avoid striking deceased, verdict should be for defendant, was improperly refused.
    5. Trial <&wkey;194(17) — Instructions—Weight of Evidence.
    In an action for the death of a trespasser run down by defendant’s train, where plaintiff relied on circumstantial evidence, and the defendant railroad company on direct evidence, a special charge that the facts might be shown by the circumstances, and that they should be determined by the circumstances at the time, is erroneous as on the weight of the evidence, tending to emphasize the circumstantial evidence introduced by plaintiff.
    6. Railroads <&wkey;394(6) — Injuries to Persons on Track — Pleading.
    In an action for the death of one run down by defendant’s train, where the petition, after alleging that the servants of defendant railroad company either saw deceased or could have seen him in the exercise of ordinary care, further alleged that if the engineer and fireman, after they discovered the peril of deceased, had used ordinary care in stopping the engine, the accident might have been avoided, is, as against general demurrer, a sufficient averment that deceased’s position of peril was discovered.
    Appeal from District Court, Ealls County; Richard I. Munroe, Judge.
    Action by Mrs. Virginia MoGill, for herself and as next friend for her minor children, against the San Antonio & Aransas Pass Railway Company. From a judgment for plaintiffs, defendant appeals.
    Reversed and remanded.
    Neff & Taylor, of Waco, for appellant. Nat Llewellyn, of Marlin, for appellees.
   RICE, J.

Mrs. Virginia McGill, for herself and as next friend for her seven minor children, 'brought this suit against appellant to recover damages for running against and killing her husband and their father, J. D. McGill, relying as a basis therefor on discovered peril and failure to exercise proper care to avoid the injury after having discovered his danger.

Appellant, after general and special exceptions and general denial, defended on the ground that the deceased was drunk and a trespasser, lying so near to its track as to be in danger of its passing trains, and also pleaded contributory negligence on the part of deceased.

There was a trial before the court with a jury, resulting in a verdict and judgment for appellees for the sum of $10,000, from which appellant has prosecuted this appeal, urging error, first, on the ground that the judgment was wholly without evidence to support it, and that the court erred in failing to give a peremptory charge in its favor.

The facts, briefly outlined, show that deceased lived between Lott and Travis, about a mile from the latter; that on the night of the 23d of February, 1915, he went to the station of Lott for the purpose of taking passage on one of appellant’s south-bound trains, and, finding it was delayed, concluded to walk home, going down the railroad track, this being the nearest and most convenient route. When about three-fourths of a mile below the station of Lott he was struck by a northbound train and killed. It appears that he was a man who was in the habit of drinking occasionally to excess, and on the night in question it is shown, that he was under the influence of liquor. The physical facts show, we think, that just before he was struck that lie was lying near the railroad track, possibly asleep. The track at this point was straight, unobstructed, and slightly up-grade toward Lott; and the 'engineer testified that he was looking up the track, and first saw an object about 200 feet ahead, at which time he rang the bell and blew the whistle, 'but he did not discover that it was something that he should not strike until he was within 65 or 70 feet of it, when he threw on the emergency brake, and that he could not tell that it was a man until he struck him; that the train was running from 18 to 20 miles an hour, and that it could not be stopped in less than 500 feet. There was evidence, however, on the part of appellees that it could be stopped within 300 feet. As to the ringing of the bell and the blowing of the whistle, and the throwing on of the emergency brake, he was corroborated by the fireman. But this evidence was controverted partly by a witness for appellees, who testified that the bell was not rung, or the whistle blown, until after the man had been struck, when the train was stopped, and the signal given as a back-up signal. The train was well equipped with the usual appliances for stopping same. The electric headlight was burning brightly, and a railroad engineer of considerable experience testified as an expert that a man lying on a straight track, on a clear night such as that night is shown to have been, and a bright headlight, could be seen a distance of a mile, and recognized as a man at least a quarter of a mile.

While it is true that the evidence on the part of appellant showed that its engineer did not discover any object upon or near the track until within 200 feet of it at which time the signals were given, and he did not recognize that it was something that he ought not to strike until it was too late to stop the train, still the evidence above outlined on the part of appellees is enough to present the issue that he did see the deceased a quarter of a mile away, and in time to have prevented the injury 'by stopping the train. This being true, while expressing no opinion as to the sufficiency of the evidence to support the verdict, still we think it sufficient to take the case to the jury, and the court did not err in refusing to give the charge requested, for which reason we overrule the first assignment.

The court instructed the jury as follows:

“You are instructed that deceased, J. D. Mc-Gill, ’was a trespasser upon defendant’s track at the time he was killed, and that the defendant railroad company owed him no duty except to use all the means within its power, consistent with the safety of its train and the people thereon, to avoid injuring him after his peril was discovered, if it was discovered, by the employés on said train.”

It further charged that:

“If you believe from the evidence that, on the occasion when J. D. McGill was struck and killed, he was on the defendant’s track, and in a dangerous or perilous position, and if you believe from a preponderance of the evidence that when defendant’s said train was approaching said McGill the engineer operating said train discovered the presence of the said J. D. McGill upon_ the- said track, and realized his dangerous position, in time to have stopped the train, before striking the said McGill; by means within his power, and if you further believe that the said engineer, after realizing the danger of the said McGill, negligently failed to use all the means at his command to stop the train before striking the said J. D. McGill, without endangering the lives of those upon said train or the destruction or damage of defendant’s property, and if you believe that, by reason of such negligence on the part of the engineer to use the means at his command to stop the train, the same ran against and killed the said J. D. Mc-Gill, and that the plaintiffs were thereby damaged, you will find for the plaintiffs.”

These charges were promptly excepted to for the reasons hereinafter discussed, and form the basis' of the second and third assignments of error.

By their respective propositions thereunder it is urged, first, that they placed too great a burden upon appellant, and that the law did not require it to do everything in its power to stop the train, but only to exercise ordinary care in the use of all means at its command after discovering his peril, to avoid injuring deceased; and, second, it is likewise urged that the giving of these charges was error, because it did not permit the jury to consider whether or not the other acts resorted to under the evidence by appellant to avoid injuring the deceased, other than the stopping of the train, might be considered by the jury in arriving at their verdict; citing, in support of such contentions, Railway Co. v. Hodges, 102 Tex. 524, 120 S. W. 848; Ry. Co. v. Reynolds, 103 Tex. 31, 122 S. W. 531; Laeve v. Ry. Co., 136 S. W. 1129; Feille v. San Antonio Traction Co., 48 Tex. Civ. App. 541, 107 S. W. 367; San Antonio Traction Co. v. Kelleher, 48 Tex. Civ. App. 421, 107 S. W. 64; Ry. Co. v. McDonald, 75 Tex. 41, 12 S. W. 860; Beaty v. El Paso Ry. Co., 91 S. W. 365.

We think the law clearly is, as suggested by appellant, that it was not its duty, after discovering deceased in a perilous position, to use all the means in its power to stop the train, but it was only required to exercise ordinary care in the use of all the means within its power, consistent with the safety of the train and those thereon, to avoid injuring him, and the exercise of such ordinary care would fulfill the requirements of the law, and the charge is therefore properly subject to the objection urged against it.

In the instant case, viewing the testimony and the evidence from the standpoint of appellant, the engineer did not see deceased in time to have stopped the train by the use of all of the means within his power, and the evidence shows there was an attempt on the part of the engineer, by sounding the bell and blowing the whistle, to warn deceased of his danger. This phase of the case was ignored, and the jury charged, as above indicated, that it became the duty of appellant to use all means within its power to stop the train before injuring deceased. When the evidence suggests the use of two or more expedients on the part of the employés of a railway to prevent injury, which might constitute the exercise of ordinary care, then it becomes the duty of the court to so charge the jury as to permit them to consider all issues so raised.

In discussing a similar question in Ry. v. Reynolds, 103 Tex. 31, 122 S. W. 531, Judge Williams says:

“The error for which this writ was granted will appear in the following instruction given to the jury, the objectionable feature appearing also in other parts of the charge: ‘ * * * But, on the other hand, if such employé, while so operating an engine, sees a person standing on such track,' and it reasonably appears that such person is not aware of the approach of the engine, and it becomes reasonably apparent that he will not leave the track before the engine reaches him, it is the duty of such employé to use every means then reasonably within his power, in the exercise of ordinary care, to stop such engine and avoid striking such person.’ In this the court determines for the jury, as a matter of law, that the effort of the defendant’s employés must have been directed to the stopping of the engine. There is no rule of law that requires that specific thing. What the law requires, is the exercise of the care to avoid injury which persons of ordinary prudence would use in such emergencies. This care must, of course, be proportioned to the danger, but what acts and expedients constitute it in a given situation is a question to be determined by the jury, and not by the court. San Antonio & A. P. Ry. Co. v. Hodges, 102 Tex. 524 [120 S. W. 848]; 2 Thompson on Neg. §§ 1734, 1738.
“The evidence shows that several things suggested themselves as proper to be done, and that some of these were done, or attempted, by the employés to avert the collision. Was it best for the employés to do as the jury might find they did, or that they should have directed their attention more to the stopping of the engine?' Was what they did in the emergency in which they thus suddenly found themselves the exercise of that kind and degree of care that men of ordinary prudence would have used in their situation? We think it quite clear that these are questions to be determined by the jury, and to be determined from the facts and circumstances as they existed and appeared at the time, and not by looking backward, and inquiring merely whether or not the event proved that some other course than that pursued would have been more effectual in preventing the injury. Of course, if it be true that all was done that could have been done to stop the engine, that fact is to be considered ; but it is to be made the reason for liability only in case the jury shall find that what was done fell short of the measure of care required by the law.
“It is true that such a charge as that in question, applied to some states of fact, would not be subject to the objection made to this, for the reason that those facts might show that there was no other course open to those in charge of an engine but to try to stop it. Such charges have been presented in cases coming before this court, and Have not been regarded as objectionable, for the reason that the court always may assume that about which there is no dispute. This cannot be said in cases like this, where the question is raised by the evidence as to what was best among several courses of conduct, and whether or not that which was done was all that ought reasonably to have been expected of persons of ordinary prudence called upon to act in such surroundings. Under the facts in this case, the charge not only determined a question which belonged to the jury, when it assumed that the engine must have been stopped if that could have been done by the means at hand, but, in thus confining the jury to that one question, improperly narrowed the issue. The most complete diligence to stop an engine, while under some conditions constituting all that could be expected, might, under others, be less than the full performance of the duty to exercise the care of an ordinarily prudent person. In some situations warnings and other expedients are more effectual than any effort to stop would be. Sanches v. San Antonio & A. P. Ry. Co., 88 Tex. 120 [30 S. W. 431]. While we are far from any purpose to relax the requirement which the law, for the preservation of life, makes of those controlling agencies in the operation of which life is put in peril, we must hold that such requirement is that they exercise the care which persons of ordinary prudence would employ in situations involving such immediate danger, and that the jury are the judges as to what measures of diligence are necessary to constitute that care under given circumstances. It is only when the facts leave no question open for controversy or difference of opinion that the court may assume that a particular course of action is required.”

Notwithstanding the jury may have believed in the present case that appellant, in the exercise of ordinary care, could not have stopped the train in time to have prevented the injury, and that it exercised ■ ordinary care, under the circumstances, in ringing the bell and blowing the whistle and throwing on the emergency brake, still the. jury were not permitted to consider this phase of the case, because they were expressly told that, unless the engineer did all in his power to stop the train, the company would be liable. We agree with appellant in this contention, and hold that the court erred in giving these charges, because it is assumed that the only thing that could have been done to avoid the injury was to have stopped the train.

Appellant requested, and the court refused to give the following special charge No. 5:

“You are instructed that if you believe from the evidence that the engineer of the engine in question, after he discovered the deceased on or near the track, if he did discover hiin, and knew of his perilous position, if any, and appreciated his dinger, if any, and realized that it was a man or some animate object, exercised ordinary care to avoid striking the deceased, then, if you so find, you are instructed to return a verdict for the defendant.”

This charge should have been given, and the refusal to do so, an exception being taken thereto, was error.

By the eleventh assignment it is urged on the p'art of appellanf that the court erred in giving special charge No. 1, requested by plaintiff, and especially the following language used therein, “It may be shown by the circumstances, and the same must be determined by the circumstances at the time,” in that the same is on the weight of the evidence. By its proposition thereunder appellant urges that:

“The record showing that the plaintiff relied on circumstantial evidence, and that the defendant in large part upon direct evidence, it was error for the court to specially instruct the jury to consider the circumstances surrounding the happening of the accident. It is never proper, where there is a conflict in the evidence, for the court to select the testimony of any particular witness or any particular line of evidence, and tell the jury that said testimony or said evidence should be considered by them, and where the evidence is in sharp conflict such an error is reversible.”

We are inclined to believe that this contention is well taken, and sustain the assignment.

The fifteenth assignment asserts that the petition is insufficient, because it nowhere affirmatively alleges that appellant discovered the peril of the deceased, but uses the expression, “that they either saw the deceased, or could have seen him in the exercise of due care,” for which reason appellees insist that their general demurrer should have been sustained. This allegation, being in the alternative, is not sufficient; but it is contended on the part of appellees that this defect, if any, is corrected in subsequent allegations of the petition, which contain recitals as follows:

“If said engineer and fireman, after they had discovered the peril of deceased, had used ordinary care by the use of their brakes in stopping said engine,” etc., and still further on in said paragraph, “after discovering the peril of deceased,” etc.

We are not prepared to hold that these recitals are not good as against the general demurrer, and overrule it.

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

Reversed and remanded.
      <gs»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HUFF, C. J.

text:
    WILSON et al. v. THOMPSON.
    (No. 1316.)
    (Court of Civil Appeals of Texas. Amarillo.
    March 27, 1918.)
    1. Bilis and Notes <@==5245, 437 — Liability oe Indorser.
    Where J. gave T., as payment or security for a note he owed him, a note payable by W. and M. to J., J. did not become principal obligor on the W. and M. note, by indorsing it, or aft-erwards signing a renewal in order to get an extension of time, but was only a surety thereon, whose discharge by T. did not affect the liability of W. and M. to T.
    2. Justices oe the PeXce <&wkey;44(8) — Jurisdiction.
    In action on note in justice court, the court had jurisdiction to enter judgment for the note and accumulated interest as provided in the note, even if the amount exceeded $200; the principal of the note being $100.
    Appeal from Scurry County Court; W. S. Adamson, Judge.
    Action by W. T. Thompson against J. F. Wilson and another. From a judgment for plaintiff, defendants appeal.
    Affirmed.
    See, also, 186 S. W. 773.
    Fritz R. Smith and J. L. Spiller,1 both of Snyder, for appellants. M. E. Rosser, of Snyder, for appellee.
   HUFF, C. J.

Thompson, appellee, instituted suit in the justice court, December 27, 1911, on a note for $139.64, due November 15, 1912, bearing interest from date at 10 per cent., and providing for 10 per cent, attorney’s fees, executed by J. F. Wilson and W. R. McClanahan. The appellants, defendants below, answered jointly, setting up that the note was a renewal note of a note dated January 7, 1910, signed by the appellants and one T. A. Jackson ; that the 'appellants were sureties, and that Jackson was the principal, on the note of which the one sued upon was the renewal; and that the note sued on was signed by them under the impression and with the distinct understanding that Jackson was to sign the note, but that ap-pellee, Thompson, failed to have Jackson sign the same, but expressly released him from the note without the knowledge or consent of appellants, and thereby released them. The trial court filed the following findings of fact:

“T. A. Jackson owed W. T. Thompson $100, to secure the payment of which he held a mortgage on Jackson’s team of horses. T. A. Jackson was the owner and holder of one promissory note for the principal sum of $100, signed by H. A. Carter, W. R. McClanahan, and J. F. Wilson, and payable to the order of T. A. Jackson. T. A. Jackson gave W. T. Thompson this Carter note for $100 as payment of the debt Jackson owed Thompson; and indorsed said Carter note in blank. When the Carter flote fell due, Carter was gone, and McClanahan .and Wilson agreed to give Thompson another note in renewal and leave Carter off. This note was at the bank, and when the cashier made out the new note he asked them to get Jackson and have him sign the renewal note. Jackson signed the note, and in so doing signed the top line. When this first renewal note fell due, another note was given in renewal of it, and all parties signed as before. When this second renewal note fell due, there was another note given to renew it, and McClanahan and Wilson signed it; Jackson being left off. When this third renewal note was presented for payment, Mc-Clanahan and Wilson refused to pay same, because Jackson’s name had been left off without their consent. There was no agreement between Thompson and Jackson that he was to take the place of Carter on the renewal note, and Jackson testified that he did not know he was to sign the renewal note until McClanahan and Wilson came to the lumber yard after him to sign it. There was no agreement between McClanahan, Wilson, and Jackson that Jackson was to become principal in the place of Carter on the renewal note, and there was no consideration given by-MeClanahan and Wilson to Jackson to become principal in Carter’s place.”

It will be borne in mind, from the facts above stated, that the debt sued on for which the original note and the several renewals were executed, was not a debt owing by Jackson, but was Carter’s debt, to which McClanahan and Wilson were sureties. The indorsement by Jackson to Thompson transferred the debt to Thompson, who as payee stood in the shoes of Jackson, who had the right to collect or sue on the note, whether he owned it absolutely or whether he held it as collateral security to the debt which Jackson owed him. Jackson was only liable as indorser, and that liability was secondary to that of the sureties, and as to the indorser they were principals, and he, by his indorsement, impliedly guaranteed they would pay the debt, for which he would not be liable until the payee in the note had exhausted his remedy against the makers of the note. The fact that Jackson afterwards signed the renewal note did .not change the relation of the parties and make Jackson the principal ob-ligor, unless it was upon a new consideration to him and it was so agreed. The evidence nowhere indicates that Jackson gave the makers of the Carter note the debt, or that he released them from its payment, and even if the title to the debt was reserved in him, and the only right of Thompson was that of a pledgee, that would not affect their liability to pay the debt. There is no evidence that the makers of the Carter note gave anything to Jackson to release them from a debt which they owed. The mere fact that Jackson owed a debt to Thompson, evidenced by a different note, did not evidence the fact that he owed the debt, which was in fact due him by Carter and others. It yet remained the debt of the parties who originally made the note in so far as he was concerned. If he had been forced to pay the debt to Thompson, they would have been liable to Jackson, and he could have forced them to pay it. There was no right of contribution existing between Jackson and the original makers and obligors on the note; in other words, they were not cosureties. “To constitute the relation of cosurety between indorsers, there must be an agreement to that effect between them. * * * It has been held that such an agreement, made between such indorsers after they have signed and without any new consideration, is not binding. * * * It has been held that an accommodation indorser of a note is not, in the absence of an agreement to that effect, liable as a cosurety with the surety who signed the note on its face as maker. * * * Prima facie an indorser of a promissory note is not a co-surety with the surety who signed the note as maker, but it may be shown by parol evidence that they were in fact cosureties.” 1 Brandt on Suretyship, §§ 286, 291. It is now the settled rule that the true relation of the parties on a note may be shown by parol evidence. Id. § 287.

When McClanahan and Wilson went to Thompson and requested him to release Carter and permit them to renew the note, they became the principal obligors and as to Thompson were primarily liable thereon. The fact that the cashier required Jackson to sign the note, and that he did so, only rendered him a surety for a debt to Thompson, which the original makers owed him. It was not a payment of that debt, or the making of a new, but only a new evidence of the same debt, with Jackson as surety. If, therefore, the creditor, Thompson, released Jackson, surety, the principals, McClanahan and Wilson, were not thereby released. 1 Brandt on Suretyship, § 171; Bridges v. Phillips, 17 Tex. 128; McIlhenney v. Blum, 68 Tex. 197, 4 S. W. 367. It does not occur to us because on a different note Jackson was liable to Thompson for the debt so evidenced and that he discharged that debt, or even secured it by a debt which was owing him by Carter, McClanahan, and Wilson, that he could or would become principal obligor on the debt originally due him simply because he indorsed the note and afterwards signed a renewal in order to get an extension of time. This act on this part would be mere accommodation to the makers of the original note. It seems to us the relation of principal and surety, or indorser, as to that debt, would subsist as to Jackson on the one part and McClanahan and Wilson on the other, and in law they were not cosureties with the right of contribution existing between them. The right of contribution existing between joint obligors must be the fundamental reason of the rule that the release of one is the release of all; but, as to the principal, where the surety is released the reason ceases and the rule itself must cease. The principal is liable for the entire debt, whether the surety pays it or not. If the surety does not pay it he is bound to the creditor, and if the surety does pay he is bound to remunerate the surety. Hence the liability of the principal is made neither more nor less by the release of the surety. This certainly was not the joint debt of Jackson, Carter, and others, but originally it was the debt due Jackson, which by transfer became the debt of Thompson, and thereafter, as an accommodation to the original makers, he became simply a surety, and not the principal ob-ligor. It was the duty of the original makers, who owed the debt, to pay it and release Jackson, and the fact that Thompson released him did not affect the liability of the original makers.

We think the trial court properly entered the judgment for the principal of the debt and accumulated interest up to the time of the rendition of the judgment, even if the amount exceeded $200. The note was for less than $200, exclusive of interest. Interest was provided for in the note. The statute gave jurisdiction for the anjount, excluding interest. The fact that the accumulating interest gave judgment for an amouilt in excess of $200 did not deprive the court of jurisdiction to render judgment for the sum of the principal and accrued interest. Hawkins, Appellate Civ. Jurisdiction, § 37, p. 131, says:

“Our trial courts may render judgment for an amount in excess of that named as the maximum amount of which they have jurisdiction when the excess is made up wholly of interest eo nomine. * * * Simply stated, the rule is that a court may render judgment for such an amount as it has jurisdiction to consider, and for no more.”

See Smith v. Ridley, 30 Tex. Civ. App. 158, 70 S. W. 235; Western Union Tel. Co. v. Garner, 83 S. W. 433.

The judgment will be affirmed.
      <g=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes