author: McMEANS, J.

text:
    TEXAS & N. O. R. CO. v. CUNNINGHAM et al.
    (No. 6605.)

    (Court of Civil Appeals of Texas. Galveston.
    May 19, 1914.
    Rehearing Denied June 25, 1914.)
    1. Railroads (§ 350)- — Accident at Crossing — Question foe Juey — Signals.
    On evidence in an action for the death of one killed by a train on defendant’s crossing, held, that the question whether a warning was given by ringing of a bell and blowing a whistle in such a way as was reasonably calculated to apprise a man of ordinary prudence of the approach of the train was for the jury.
    [Ed. Note. — For other' cases, see Railroads, Cent. Dig. §§ 1152-1192; Dec. Dig. § 350.]
    2. Railroads (§ 350) — Accident at Crossing— Question for Jury — Excessive Speed.
    On evidence in such action, held, that the question whether the speed of defendant’s train was too great under the circumstances was for the jury.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1152-1192; Dec. Dig. § 350.]
    3. Railroads (§ 350) — Accident at Crossing-Question for Jury — Failure to Maintain Watchman.
    On evidence in such action, held, that the question whether defendant in the exercise of ordinary care was required to station a flagman at the crossing, especially when backing its trains over it, to warn persons about to use the crossing, was for the jury.
    [Ed. Note. — For other cases, see' Railroads, Cent. Dig. §§ 1152-1192; Dec. Dig. § 350.]
    4. Railroads (§ 350) — Accident at Crossing — Question for Jury — Contributory Negligence.
    On evidence in such action, held, that the question of plaintiff’s contributory negligence was for the jury.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1152-1192; Dec. Dig. § 350.]
    5. Appeal and Error (§ 999) — Review— Conclusiveness of Findings.
    Where the Court of Civil Appeals could not say that deceased killed at a crossing was guilty of contributory negligence as a matter of law, the finding of the jury that he was free from such negligence was conclusive on the court.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3912-3921, 3923, 3924; Dec. Dig. § 999.]
    6. Railroads (§ 351) — Action for Injury-Instructions — Contributory Negligence.
    , . In an action for the death of one killed by defendant’s train at a crossing, where the court submitted the issues of defendant’s negligence in failing to warn of the approach of the train, in running at an excessive speed, and in failing to keep a flagman at the crossing, an, instruction that, if the signals given were reasonably calculated to warn persons about to use the crossing, and if by listening deceased would have heard them in time to have avoided collision, or if by looking he could have avoided collision, and he failed to do so, he was guilty of contributory negligence defeating a recovery, was not objectionable, as requiring the jury to acquit defendant of having failed to give such signals as were reasonably calculated to warn persons using the crossing of the approach of its train, before they could find contributory negligence on the part of deceased, so as to put a greater burden upon defendant; since the effect of the charges was to direct that, even if defendant was negligent in those respects, there could be no recovery if deceased was guilty of contributory negligence in failing to look or listen as he approached the crossing.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1193-1211, 1213-1215; Dec. Dig. § 351.]
    7. Railroads (§ 351) — Action for Injury-Instructions — Contributory Negligence.
    In such action the refusal of an instruction that, if deceased could have ascertained the approach of the train in time to have avoided collision by stopping and listening, he was guilty of contributory negligence and could not recover, was error.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1193-1211, 1213-1215; Dec. Dig. h 351.]
    8. Trial (§ 260) — Instructions—Harmless Error — Contributory Negligence.
    The refusal to give such instruction was harmless, where the court had submitted the issue of defendant’s negligence in failing to give warning of the approach of the train, in running at an excessive speed, and in failing to. keep a flagman at the crossing, in effect telling the jury that, although defendant was negligent in those respects, plaintiff could not recover if deceased was guilty of contributory negligence in failing to look and listen as he approached the crossing.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.]

      9. Death (§ 99) — Excessive Damages.
    Where deceased, killed at defendant’s crossing, was only a little past 24 years of age, 6 feet in height, weighing 165 or 170 pounds, in good health, was well educated, energetic, and a good husband, and for two years’ service had been paid over $5,000, was worth $2,500 per year as a real estate salesman, and the lowest estimate of his earnings was $150 per month, held, in the absence of anything to show that the jury was influenced by passion, prejudice, or other improper motives, that a verdict of $10,-000 to the widow and the same amount to each of the two minor children was not excessive.
    - [Ed. Note. — For other cases, see Death, Cent. Dig. §§ 125-130; Dec. Dig. § 99.]
    Appeal from District Court, Jefferson County; John M. Conley, Judge.
    Action by Jessie P. Cunningham and others against the Texas & New Orleans Railroad Company. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    Baker, Botts, Parker & Garwood, of Houston, and Hightower,. Orgain & Butler, of Beaumont, for appellant. W. O. Davis, of Gainesville, R. E. Thomason, of El Paso, Smith, Crawford & Mead, of Beaumont, and Robert T. Neill, of El Paso, for appellees.

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

       Application for writ of error pending in Supreme Court.

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

   McMEANS, J.

Mrs. Jessie P. Cunningham and her two minor children brought this suit against the Texas & New Orleans Railroad Company to recover damages for the death of John P. Cunningham, the husband of Mrs. Cunningham and the father of the minors, alleged to have been occasioned by the negligence of the railroad company. Plaintiffs alleged that on the 18th day of March, 1912, defendant owned certain railroad tracks in the city of Port Arthur, and that its main track and numerous side tracks crossed Eighth street and other streets in said city, which Eighth street was alleged to be a public crossing, and used generally as such by the public; and that on said date defendant’s side tracks between Eighth street and its passenger depot, alleged to be two blocks east of Eighth street, were blocked with freight and other cars, some of them extending into Eighth street; and that the view of said crossing towards defendant’s passenger depot , was obstructed and obscured by the standing cars and defendant’s freight depot, so that one using the crossing over said track could not see or know of the approach of a train from that direction; and that John P. Cunningham, the husband and father of plaintiffs, while traveling along said Eighth street in a wagon in a southwesterly direction, with due care attempted to cross defendant’s track, and, while attempting to cross said track, defendant’s passenger train, which was backing from its passenger depot in a northwesterly direction along one of its tracks at a rapid and dangerous rate of speed, struck the wagon which John P. Cunningham was driving, and threw him from the said wagon, under the wheels of the cars, which passed over him, killing him instantly. The grounds of negligence charged against the defendant, in so far as the same were submitted to the jury in the charge, were: (1) That defendant’s em-ployés were guilty of negligence in not blowing such whistles or giving such other signals at the rear of said train as would apprise persons of the approach of said train in time for them to avoid a collision therewith. (2) That the defendant and its employes were guilty of negligence in running said train at that point in view of the existing conditions, at a great rate of speed. (3) By reason of the fixed obstruction constituted by defendant’s freight depot and the obstructions then existing by way of freight cars being located on the side track so as to obstruct the view, and the fact that there were numerous tracks of defendant crossing said Eighth street, and the frequent use of the place by the defendant and the public, that defendant was guilty of negligence in not keeping a watchman at said crossing to warn the public in passing of the approach of trains. Defendant answered by general and special exceptions, and by a special plea of contributory negligence, alleging that the deceased attempted to cross the railway track, at the time in question, immediately in front of appellant’s train, without first having taken any precaution to avoid a collision with said train, and that on the occasion in question he failed to use due and proper care for his own safety and protection while approaching and attempting to cross the track, and without having first ascertained or attempted to ascertain the presence of defendant’s train at said crossing or its approach thereto. The case was tried before a jury and resulted in a verdict and judgment for plaintiffs for $30,000, of which $10,000 was apportioned to Mrs. Cunningham and a like amount to each of said minors. Prom this judgment the defendant has appealed.

By its first assignment of error appellant complains of the action of the court in refusing to give to the jury its first special charge, which was a peremptory instruction to return a verdict in its favor.

By its several propositions under the first assignment appellant contends: (1) That the evidence was insufficient to raise the issue as to whether or not the defendant was negligent in not giving sufficient signals of warning of the approach of the train to the. Eighth street crossing; (2) that the evidence did not raise the issue of its negligence in respect of the speed of the train when it reached the crossing; (3) that the evidence did not raise the question of negligence of defendant in failing to have a flagman at the crossing, sufficiently to require the submission of that question to the jury; and (4) that the undisputed evidence shows that deceased was guilty of contributory negligence as a matter of law.

The undisputed evidence in this case is that the deceased, John P. Cunningham, was killed by being run over by one of appellant’s passenger trainá while he was attempting to cross appellant’s railroad track, while traveling along Eighth street in the city of Port Arthur; that the train was running backward at the time and consisted of two coaches, a baggage car, tender, and engine; that Eighth street ran in a northerly and southerly direction, and the railroad track at the place of the injury ran in an easterly and westerly direction; that Seventh street is the next street east of Eighth; that Sixth is the next street east of Seventh, both running parallel with Eighth, and these streets are about 800 feet apart; that appellant’s passenger depot is north of its railroad track and is between Sixth and Seventh streets, nearer the Sixth street line; that its freight depot is also on the north side of the railroad track and is between Seventh and Eighth streets, nearer the Seventh street line; that there is a switch track on the north side of the main track which runs from the freight depot parallel with the main track, crossing Eighth street and continuing west. This switch track is about 11 feet from the main track. There was also another switch track north of the one mentioned above running parallel with it across Eighth street and about 40 or 50 feet north of the other switch track above mentioned.

The undisputed evidence shows: That at the time Cunningham was killed there was a string of box cars on the side track nearest the main line above mentioned, which cars extended from Eighth street to the freight depot east and extended from Eighth street west for some distance, leaving an opening at the Eighth street crossing of some 23 feet. That there was also a string of box cars standing on the northernmost switch track on both sides of Eighth street, leaving an opening at'Eighth street a little wider than the opening through the string of cars on the other switch track. That the string of ears on the switch track nearest the main line east of Eighth street extended to the freight depot. That the freight depot was a large, two-story structure, and beyond this, across Seventh street, was the passenger station. That across the main line of the railroad track from the freight depot is a hotel building, and west of this an outhouse. The passenger train which collided with Cunningham’s wagon, a little while before the collision, had passed across Eighth street with the engine in front and. stopped near the passenger station, and was backing out from the passenger station at the time of the collision, and that the train was usually operated in this manner. That the deceased, Cunningham, was driving a team of mules hitched to an ordinary farm wagon and was traveling south on Eighth street: There was no bed on the wagon, and he was sitting on the running gear, or rather on the hounds of the wagon. The wagon had a long coupling pole, it being used for hauling lumber.

It was imdisputed that one sitting on the running gear of a wagon, approaching the main track, as Cunningham was, could not see down the main line of the railroad track until he emerged between the box cars that were on the switch track nearest the main line; and that the box cars on this switch track and the freight depot east of them would completely hide cars that might be approaching from the east on the main line. It was further undisputed that Cunning-' ham’s team and the front part of the wagon had crossed the main track before the collision, and that the rear passenger car struck the hind part of the wagon, catching and killing Cunningham.

Deceased was traveling in a southerly direction. After he crossed the first, or northernmost, switch track, and just before reaching the second, he spoke to the witness Root in salutation. His team was then going at a fast walk. After that he appeared to be looking ahead and continued to so look until he reached and passed the string of cars on the switch track nearest the main track. These tracks are about 11 feet apart. The proof shows that the distance from where deceased was sitting on the wagon to the heads of his mules was about 14 feet, so that at the time he passed the string of cars sufficiently far to see a train coming on the main line from the direction of the depot his mules of necessity must have been passing over the main track. As before shown, the evidence leaves little doubt that the mules and the front of the wagon had crossed the track when the collision occurred. Just after he saluted the witness Root, deceased struck his team to move them up. Root testified:

“His position on the wagon indicated to me that he didn’t think about the train down there coming. In fact, it was past train time. I say it was past train time. I am relying on Mr. Stoneburner’s watch when he said it was 8:05. That train is due to leave about 7:55. He said it was late. I was going by his watch.”

The engineer testified that the train was moving out on its schedule time.

While the train was standing at the depot, the locomotive was about two blocks or 600 feet distant from the Eighth street crossing. When the train started backing, the locomotive whistle was blown, and the brakeman,. who had stationed himself at the rear end of the rear coach, sounded a warning for the Seventh street crossing by giving four blasts of the air whistle located at the rear end of the car. The air whistle was not again sounded until the rear coach had reached a point 130 to 150'feet from the Eighth street crossing, where four blasts were again given. It was not sounded again until the brakeman observed deceased’s mules upon the track only some 8 or 10 feet distant, but that warning was not in time to prevent the collision. It was also shown that the locomotive bell was rung by the fireman from the time the train started to back until tbe collision occurred. Testimony to tbe effect that these signals were not given is of a negative nature, tbe witness testifying thereto simply saying that they did not bear or did not notice them. It is undisputed that tbe defendant maintained no flagman at tbe Eighth street crossing at tbe time of tbe accident and never bad.

Eighth street was a public street in Port Arthur, a city of about 12,000 inhabitants, and tbe crossing in question was one generally used by the public, although said street and said crossing were not as much used as the streets nearer the business part of the city. Some time prior to the death of Cunningham, the city of Port Arthur had authorized the defendant railroad company to close the street at its railway crossing, but the defendant had never closed the same against traffic by any permanent barricade, but only at intervals when cars would be temporarily standing across the street. At all other times, and especially at the time Cunningham was killed, it was to all intents and purposes a public street and used as such by the general public. It was graded and shelled across the tracks, and planking was laid- on the track to give it an even surface with the grade of the street.

As to the rate of speed of the train at the time of the collision, the witnesses are not in exact accord. One of them testified that it was going “a little fast,” without attempting to give the rate per hour; another that it was going about its usual rate; another that it was “not going pretty fast”; while the witness Booth, the fireman, said its speed was between four and six miles per hour; and Monahan, the engineer, testified that it was five or six miles per hour, and not faster. The evidence shows that a train such as the one in question, traveling at a speed of five or six miles per hour, could be stopped within 12 or 15 feet. It was shown that the emergency brake was applied when the rear coach was within 8 or 10 feet of Cunningham, and that the train proceeded a distance of about 15 or 18 feet west of the crossing after Cunningham was struck.

We think the testimony was sufficient to take the case to the jury. While it is true that the locomotive whistle was sounded before the train started to back, it was then about 600 feet from the crossing and the rear car was more than 300 feet distant. The deceased was approaching the crossing, his team going in a fast walk, and at the time the whistle sounded’ he also must have been some considerable distance from the crossing. The engine bell was-being sounded, but this was at the front and not the rear end, at which the danger from collision might be anticipated. Railway v. O’Connell, 43 S. W. 66. The air whistle at the rear end of the rear coach was blown when the train first started to back, but this blast was for the Seventh street crossing; but, as before shown, this was more than 300 feet from Eighth street. It was not blown again until the rear coach was within about 120 to 150 feet, and not thereafter in time to warn Cunningham,' who all this time was approaching the track; his vision obscured by standing cars projecting into the street on the switch track, which was only about 11 feet from the track on which the cars were approaching, and by structures close to the track.

We think these facts justified the court in submitting to the jury the issue whether the warning by ringing of the bell and blowing the whistles was given in such a manner as was reasonably calculated to apprise a man of ordinary prudence about to use the crossing of the approach of the train. It was for the jury to say under the facts whether ordinary care upon the part of the defendant, considering the situation of the crossing, and of the blocked track that obscured the vision of one approaching did not require the air whistle signal to be sounded continuously after the train was set in motion, or at more frequent intervals.

It was also a question for the jury to say whether the speed of the train was too great under the circumstances. Four to six miles per hour seems to us an ordinarily slow and safe rate of speed, hut the jury might reasonably have concluded that the speed was greater than that testified to by the engineer and fireman, in view of the fact that the evidence shows that this train could have been stopped in 12 to 15 feet if going only six miles per hour, by application of the emergency brake, and in view of the further facts that the emergency brake was applied when the end of the car was within 8 or 10 feet of the deceased and the train ran 15 to 18 feet after it collided with him.

The jury also might have concluded that, on account of the manner in which defendant’s various tracks at the crossing were obstructed, the fact that the vision of one approaching the crossing was obscured by the cars and adjacent structures, the frequency of use of the crossing, and the unusual hazard of using the same, as shown by the proof, required of the defendant, in the exercise of ordinary care, to station a flagman at the crossing, especially at such times as it knew it was about to back its train thereover, to warn persons about to use the same, and that a failure to so station a flagman or watchman was actionable negligence. Railway v. Magee, 92 Tex. 619, 50 S. W. 1013.

The evidence justified the submission of the issue of the contributory negligence of the deceased, and the finding of the jury in favor of plaintiffs upon that issue is conclusive upon us. Certainly we cannot say that under the facts of this case the deceased was guilty of contributory negligence as a matter of law. The assignment is overruled.

Many assignments of error are presented by appellant relating to alleged errors in the charge of the court and of the refusal of the court to give special charges requested. We have carefully examined all these assignments, and are of the opinion that none of them points out reversible error, and will omit a discussion of all of them except the eleventh and twenty-first.

The eleventh assignment complains of the ninth paragraph of the court’s general charge, which is as follows:

“Now if you shall believe that when the train approached the crossing the bell was rung or the whistle was blown at such time and place as was reasonably calculated to warn persons using or about to use said crossing, and that by listening the deceased could have heard the same in time to have avoided collision with said train, or if you believe that by looking he could have seen said train in time to have avoided such collision, and he failed to do either (if you find the facts so to be), and that by reason thereof he was struck and thereby killed, and you further believe that by his failure (if any) to so look and listen he was guilty of contributory negligence, then I charge you that your verdict should be for the defendant company, even though you should find that defendant was guilty of negligence under paragraph 8 of this charge.”

The criticism of this charge is that, before the jury could find the deceased guilty of contributory negligence, it required that they should first acquit the defendant of having failed to ring the bell or blow the whistle at such time and place as was reasonably calculated to warn users of the crossing of its approach, and therefore put a greater burden upon defendant than the law imposes. It seems to us that this criticism is strained. The charge may not have been without a flaw, and but few charges are. It was unnecessary perhaps to say in that connection anything about warnings given by ringing the bell or blowing the whistles, but manifestly the jury could not understand from a reading of the entire paragraph that deceased would not have been guilty of contributory negligence, however inattentive and careless he may have been, unless the signals were given; but, on the contrary, the jury was expressly instructed that if deceased failed to look or listen, and that by reason of such failure' he was guilty of contributory negligence, plaintiffs could not recover even if the jury should find that the defendant company was guilty of negligence under paragraph 8 of the charge. The eighth paragraph of the charge referred to submitted the issue of negligence of defendant in failing to give warning of the approach of the train by ringing the bell or blowing the whistle, by running the train over the crossing at too great a rate of speed, and in failing to keep a flagman at the crossing; so that the effect of the charge complained of, when taken in its entirety and construed in connection with the whole charge, was to tell the jury that, even though the defendant was negligent in all these respects, plaintiffs could not recover if the deceased was guilty of contributory negligence in failing to look or listen as he approached the crossing.

The twenty-first assignment complains of the failure of the court to give appellant’s nineteenth special charge, which is as follows:

“If you should believe that on the occasion in question the deceased could have ascertained the approach of defendant’s train to said Eighth street crossing in time to have avoided contact with said train by listening for said train (if he did not), or by stopping and listening (if he did not), and that in failing to so listen (if he did fail) he failed to use that degree of care that an ordinarily prudent person would have used under the same or similar circumstances, then your verdict must be for the defendant, even if you should believe that defendant was guilty of negligence as claimed by plaintiff.”

Appellant contends that this charge should have been given in order to properly submit to the jury the question of the deceased’s contributory negligence, without making it imperative that the jury first acquit the defendant of negligence in having failed to sound the whistle or ring the bell. As we have before attempted to show, the effect of the court’s charge was not to require the jury to acquit the defendant of negligence in such respects before they could find deceased guilty of contributory negligence. We think the special charge was a proper one to be given, however, and that it should have been given; but, in view of what we have said in regard to the ninth paragraph of the court’s charge, we do not think that the failure of the court to give the special charge was such a denial of the rights of appellant as was reasonably calculated to cause, and did probably cause, the rendition of an improper judgment in the case. The assignment is overruled.

The twenty-third assignment complains that the verdict is excessive. The judgment is large, and if this court had been passing upon the facts in the first instance it is not likely that a judgment for $30,000 would have been awarded. At the time of his death the deceased was a little past 24 years of age, was 6 feet tall, and weighed 165 or 170 pounds and in good health. He was well educated, normal, energetic, and a good husband. For two years’ service with J. B. Baird he was paid $5,117.50, and he was held in high esteem by his employer. His aspirations were lofty, and he was ambitious and earnestly bent on making a success of life. Baird testified that as an experienced real estate salesman the deceased’s services were worth $2,500 per year. The lowest estimate placed upon his darning capacity was $150 per month. In addition to compensation for the pecuniary loss sustained by plaintiffs on account of his death, his two little children, born 12 days after his death, were entitled to compensation for the loss of the nurture, care, and education their father could have given them. The amount to be awarded was necessarily left to the discre. tion of the jury, and that discretion does not appear to have been abused in this case. Nor is there anything in this case to indicate that the jury in arriving at the amount of the verdict was influenced by passion, prejudice, or other improper motive. We cannot say that the verdict is manifestly too large, and the assignment is overruled.

We find no reversible error in the record, and the judgment of the court below is affirmed.

Affirmed.


source: Caselaw Access Project

author: DUNKLIN, J.

license: Public Domain

text:
    WARD & CO. v. WOMACK et al.
    (No. 7933.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    April 11, 1914.
    Rehearing Denied May 16, 1914.)
    1. Estoppel (§ 58) — Agreement oe Surety— Prejudice.
    Where a surety on a cropper’s note for supplies agreed that a debt for additional supplies should be first paid from the proceeds of the crop to induce the creditor to furnish the additional supplies, the surety would be estop-ped to deny the validity of such agreement, though he received no benefit therefrom.
    [Ed. Note. — For other cases, see Estoppel, Cent. Dig. §§ 144, 145; Dec. Dig. § 58.]
    2. Principal and Surety (§ 114) — Discharge of Surety — Satisfaction of Debt.
    Where a surety signed a cropper’s note for supplies to be paid out of the proceeds of the crop, and afterwards agreed that a further note signed by the cropper alone for additional supplies should be first paid out of the crop, and the creditor received sufficient cotton from the debtor to pay both notes, the creditor could not successfully claim apy liability against the surety, though .it failed to apply the proceeds of the cotton to the full satisfaction of the note the surety signed.
    [Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§' 240-243; Dec. Dig. § 114.]
    Appeal from Eastland County Court; E.‘ A. Hill, Judge.
    Action by Ward & Co. against J. W. Wo-mack and others. From a judgment in favor of defendant J. L. Keith, plaintiffs appeal.
    Affirmed.
    J. J. Butts, of Cisco, and J. R. Stubblefield, of Eastland, for appellant. Scott & Brels-ford, of Eastland, for appellees.

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

   DUNKLIN, J.

J. W. Womack and J. L. Keith executed a promissory note in favor of Ward & Co., a partnership, for the principal sum of $170.30. Keith signed said note as surety only for Womack, with the understanding and agreement with the firm that the same should be secured by a chattel mortgage in favor of the payee of the note on a crop of cotton to be grown by Womack. Ward & Co. were merchants, and $100 of the amount for which the note was given was for supplies to be advanced to Womack to enable him to make the crop, and $30.30 of the principal of the note was for a past indebtedness owing to the firm by Womack. The chattel mortgage was executed by Wo-mack in accordance with the agreement stated. After Ward & Co. had furnished the supplies to Womack of the value of $100, as agreed, it developed that he would need additional supplies to the extent of $150 in order to enable him to finish cultivating and harvesting the crop of cotton. These additional supplies were furnished by Ward & Co., but before furnishing the same they took from Womack his promissory note for the sum of $150 secured by a second mortgage upon the crop. This note was executed by Womack alone, and the second mortgage given by him contained the stipulation that the $150 note should be satisfied out of the proceeds of the cotton before payment of the note theretofore executed by Womack and Keith.

This suit was instituted by Ward & Co. against Womack and Keith upon the note first mentioned. In his answer thereto Keith pleaded his suretyship upon the note, the agreement between him and the plaintiffs and Womack for the execution of the mortgage to secure the same, and that plaintiffs had received proceeds of the cotton covered by the mortgage sufficient to satisfy the note.

By supplemental petition plaintiffs alleged that, before they sold to Womack the additional goods for which the $150 note was executed, Keith promised plaintiffs orally that he would sign another note with Womack for the additional supplies to the extent of $100 in order to enable Womack to finish his crop; that thereafter plaintiffs were informed by Womack that Keith had agreed to execute with him a note to plaintiffs for $150 for additional supplies, and that, relying upon the promise so made by Keith and the statement so made by Womack, plaintiffs accepted from Womack the second note and mortgage, agreeing at the time to sell to Womack additional goods and merchandise of the value of $150; that, about ten days after the execution of the said second note, plaintiffs presented the same to Keith for his signature, who refused to sign it, but agreed then and there with plaintiffs that the proceeds of the cotton to be grown by Womack and covered by both mortgages should be first applied to the satisfaction of the second note, and, but for this agreement of Keith that the first mortgage should be subordinated to the second mortgage, plaintiffs would not have sold to Wo-mack the additional supplies.

Keith excepted to the supplemental petition upon the ground that it failed to allege any consideration for the alleged waiver of the first lien in favor of the second lien, and also that it in effect was an attempt to bind Keith upon the second note and mortgage of Womack’s upon an alleged parol promise by Keith. Plaintiffs recovered a judgment against Womack by default, but failed to recover against Keith, and, from the judgment denying a recovery against Keith, plaintiffs have appealed.

Plaintiff Ward testified that, out of the proceeds of the mortgaged cotton, the second note was satisfied in full, also an unsecured indebtedness of $40 owing by Womack to Ward & Co. for other goods sold, and the further sum of $34 which was credited on the note in controversy.

The court instructed the jury that if Keith agreed to waive the first mortgage lien on the cotton in favor of the second mortgage lien, as pleaded by plaintiffs, but that that agreement was without consideration, then a verdict should be returned in favor of Keith. The court further instructed the jury that by the term “consideration” was meant “some benefit or advantage to the party making the promise.”

Error has been assigned to this instruction. One of the contentions urged under the assignment is that if Keith made the agreement referred to, and if plaintiff relied upon the same and was induced thereby to sell to Womack the additional supplies, then Keith would be estopped from questioning the validity of the agreement, notwithstanding Keith received no benefit or advantage therefrom.

We are of the opinion that this contention is sound, but the error will not require a reversal of the judgment for the following reason: Womack testified without controversy as follows:

“I made 10 bales of cotton out of the crop covered by the two mortgages and sold them to Ward, Gude & Co. The bales averaged 500 pounds each. X sold them for 9% cents per pound.”

Thus it will be seen that Ward, Gude & Co. (who were the same firm as Ward & Co.) received cotton from Womack of the value of $475.50, which was in excess of the aggregate of the note in suit for the principal sum of $170.30, and the second note for the principal sum of $150. Having received out of the mortgaged cotton more than sufficient to satisfy the note in suit, as well as the second note, plaintiffs cannot be heard to claim any of the indebtedness against Keith, even though they failed to apply the purchase price of the cotton to the full satisfaction of the note which Keith had signed. For this reason the judgment is affirmed, irrespective of the error pointed out in the court’s charge.

Affirmed.


text:
    GORMAN v. BRAZELTON.
    (No. 7924.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    April 18, 1914.)
    1.Trial (§ 29) — Conduct of Triad — Remarks of Judge — Comments on Evidence.
    Where, in an action for damages to a farm from the unauthorized pasturing of cattle thereon, witnesses testified for plaintiff that in their opinions the land was permanently dam-, aged in specified amounts, the remark of the trial judge, in the presence and hearing of the jury, that none of the evidence given by the witnesses as to the damage to the land was worth anything, and that the jury would not pay any attention thereto, but that the jurors were nearly all farmers and would decide the case according to their own knowledge, was error reasonably calculated to prejudice plaintiff.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 80-83, 508; Dee. Dig. § 29.]
    2. Trial (§ 260) — Instructions Covered by Those Given.
    There was no error in refusing an instruction which was sufficiently covered in the main charge.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.]
    3. Landlord and Tenant (§ 142) — Possession and Use — Injuries to Premises.
    Though a tenant had a right to the use of the leased land during his tenancy, he had no right to so use it as to injure the freehold and could not confer such a right upon any one else, and hence, in an action for damages to a farm from pasturing cattle thereon while a tenant was in possession, an instruction that, if the cattle were placed on the land with the tenant’s consent, plaintiff could not recover damages from defendant, but that her right of action would be against the tenant, was erroneous.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 509-515; Dee. Dig. § 142.]
    4. Trial (§ 252) — Instructions—Conformity to Evidence.
    In an action for damages to a farm from the unauthorized pasturing of cattle thereon, an instruction that every man was responsible for the injury and damage occasioned by his stock to the lands of another, unless done under a contract anticipating the injury and paid for under a contract lawfully made with one having authority to make such contract, was error, where there was no evidence that plaintiff made a contract with any one authorizing the use of the land in such manner as to permanently injure the freehold.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. § 252.]
    5. "Trial (§ 141) — Questions for Jury.
    In an action for damages to a farm from pasturing cattle thereon, where the evidence was undisputed that the pasturing in one of the years was without plaintiff’s authority, this should not have been submitted as a disputed issue.
    [Ed. Note. — For ‘other cases, see Trial, Cent. Dig. § 336; Dec. Dig. § 141.]
    6. Trespass (§ 25) — Injuries to Premises— Consent as Defense.
    Though an owner of land gave her consent to the pasturing of cattle thereon, she was not thereby necessarily precluded from recovering for an injury to the freehold done by the cattle.
    [Ed. Note. — For other cases, see Trespass, Cent. Dig. §§ 54-57; Dec. Dig. § 25.]
    7. Appeal and Error (§ 724) — Assignments of Error — Requisites and Sufficiency.
    Where the assignments of error were substantial copies of the grounds contained in the motion for a new trial, objections that they did not follow the motion for a new trial were without merit.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2997-3001, 3022; Dec. Dig. § 724.]
    Appeal from Parker County Court; T. F. Temple, Judge.
    Action by Mrs. Alice Gorman against J. W. Brazelton. From a judgment for defendant, plaintiff appeals.
    Reversed and remanded.

      Lanham & O’Neal, of Weatherford, for appellant. Mosely & Barcus and Richards & Carter, all of Weatherford, for appellee.

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

   DUNKLIN, J.

Mrs. Alice Gorman instituted this suit against J. W. Brazelton to recover damages for injury to a farm owned by the plaintiff which, according to allegations in the plaintiff’s petition, resulted from the unauthorized pasturing of cattle upon the farm by the defendant during the year 1911-12. From a judgment in favor of the defendant, plaintiff has appealed.

J. T. Pickard, a witness for the defendant, testified that in his opinion the pasturing of the cattle upon plaintiff’s land did not result in injury to it. Plaintiff objected to the question eliciting such testimony upon the ground that the witness had not shown himself sufficiently qualified to give such opinion. In overruling this objection the court stated, in the presence and hearing of the jury and with much emphasis:

“That none of the evidence given by the witnesses as to the damage done to plaintiff’s land was worth anything, and that the jury wouldn’t pay any attention to the same, that the jurors were nearly all farmers, themselves, and would decide the case according to their own knowledge.”

A bill of exceptions was taken to these remarks by the court, which is made the basis of an assignment of error; the ground of objection being that the same was a comment by the court upon the weight of the testimony upon which plaintiff relied to show damages. According to the bill of exceptions, three witnesses had testified for plaintiff that in their opinions plaintiff’s land had been permanently injured by such pasturing of the cattle, one of whom had estimated such damage for the pasturing during the year 1911 at $1 per acre, and another had estimated the damage at $4 per acre for the same period of pasturing. Clearly, this action of the court was error, and, as it appears that it was reasonably calculated to influence and probably did influence the jury to plaintiff’s prejudice, the assignment is sustained.

Error has been assigned to the admission of the testimony of said witness J. T. Pick-ard and W. B. McCleskey and J. M. Hart, two other witnesses for the defendant, who stated that in their opinions the land had not been damaged by defendant’s cattle. The ground of plaintiff’s objection to the testimony of those witnesses was that they had not shown themselves qualified to give such opinions. We think that these witnesses did show themselves qualified to give the opinions to which the objections were made.

There was no error in refusing plaintiff’s requested special charge upon her right to recover nominal damages in the event the proof had not established her claim for actual damages, as that instruction was sufficiently covered in the main charge.

According to plaintiff’s pleadings and evidence introduced in support of the same, a part of the time that defendant’s cattle were pastured upon the land was during the year 1912 while plaintiff’s tenant Gee was in possession of it under a rental contract from plaintiff. The court instructed the jury, in effect, that, if the cattle were placed on the land during the year 1912 with the consent of Gee, then plaintiff could not recover any damages therefor, as her right of action would in that event be against Gee for such damages. This instruction was erroneous. Of course, the tenant would have the right to the use of the land during his tenancy, but he would not have the right to so use it as to injure the freehold and could not confer such a right upon any one else. See Taylor’s Landlord & Tenant, §§ 344 and 345. This conclusion is not at variance with the decision in G., C. & S. F. Ry. Co. v. Smith, 3 Tex. Civ. App. 483, 23 S. W. 89, cited by the appellee, in which it was held that the right of recovery for the destruction of a crop of growing grass by fire from a locomotive is in the lessee and not in the owner of the land, which decision is also cited with approval in Peck v. Kane, 27 Tex. Civ. App. 38, 63 S. W. 177.

The court submitted to the jury the plaintiff’s claim for damages done during the year 1911. Upon another trial the claim for damages for both years should be submitted.

One of the paragraphs of the court’s charge reads:

“Every man is responsible for the injury and damage occasioned „ by his stock to lands of another unless said injury is done under a contract anticipating said injury and paid for under the contract lawfully made with one having authority to make such contract.”

There was no evidence that plaintiff made a contract with any one authorizing any use of the land in such manner as to permanently injure the freehold, and the instruction quoted should not have been given because it was misleading and probably prejudicial to the plaintiff. The evidence was undisputed that the pasturing of defendant’s cattle on plaintiff’s land in 1911 was without her authority, and if the evidence is the same upon another trial that should not be submitted as a disputed issue, as was done upon the last trial. Even if plaintiff had given her consent for the pasturing of the cattle, it would not necessarily follow that she could not recover for an injury to the freehold done by the cattle, as the jury were told in substance in the court’s charge.

We are of the opinion further that the allegations contained in plaintiff’s petition were sufficient to sustain a claim for permanent injury to the land.

It is unnecessary to discuss other assignments to the action of the court in overruling objections urged by the plaintiff to the qualifications of some of the jurors who tried the case as the same jurors will not be called upon another trial.

The assignments discussed above are substantial copies of the grounds contained in plaintiff’s motion for a new trial, and hence defendant’s objections to a consideration of some of those assignments on the ground that they do not follow the motion for new trial are without merit.

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


text:
    BRADSHAW et ux. v. KEARBY & KEARBY et al.
    (No. 7973.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    May 9, 1914.
    On Motion for Rehearing, June 20, 1914.)
    1. Homestead (§ 181) — Abandonment—Sufficiency of Evidence.
    In a suit by a husband and wife to set aside a sale of land under a deed of trust, evidence held to support a finding that, if the land was ever the homestead of the parties, it was permanently abandoned by them prior to the execution of the deed of trust.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. &§ 351-353; Dec. Dig. § 181.]
    "On Motion for Rehearing.
    2. Appeal and Error (§ 722) — Assignments of Error — Requisites and Sufficiency.
    Under Rev. St. 1911, art. 1612, as amended by Acts 33d Leg. c. 136, providing that where a motion for a new trial has been filed the assignments therein shall constitute the assignments of error and need not be repeated by the filing of assignments of error, assignments of error contained in appellant’s brief will be stricken on motion and not considered, where they are not even substantial copies of the assignments in the motion for a new trial.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2990-2996; Dec. Dig. § 722.]
    Appeal from District Court, Taylor County; Thos. L. Blanton, Judge.
    Action by H. C. Bradshaw and wife against Kearby & Kearby and others. From a judgment for defendants, plaintiffs appeal.
    Affirmed.
    Cunningham & Oliver and A. H. Kirby, all of Abilene, for appellants. Kearby & Kearby, of Comanche, and Ben L. Cox, of Abilene, for appellees.

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

   DUNKLIN, J.

H. C. and Rosa Bradshaw executed a deed of trust on a house and lot in the town of Potosi to secure Kearby & Kearby in the payment of two promissory notes for $250 each signed by H. C. Bradshaw and Rosa Bradshaw. The substitute trustee under the deed of trust sold the property under the terms of that instrument, and Kearby & Kearby became the purchasers. This suit was instituted by H. C. and Rosa Bradshaw to set aside that sale and recover the property upon allegations that at the time the deed of'trust was executed the property was the homestead of plaintiffs. A trial by the court without the aid of a Jury resulted in a judgment in favor of the defendants, from which plaintiffs have appealed.

The judgment contains findings by the court that:

“If said- property was ever the homestead of plaintiffs, it had been permanently abandoned by the plaintiffs prior to the execution of said deed of trust thereon, and at the time of the execution of said deed of trust the plaintiffs had no intention of returning to or occupying same as a homestead, but had permanently abandoned the same.”

Heretofore on motion of appellees all assignments of error except the sixth assignment were stricken out because the same were not in compliance with the rules for briefing. The sixth assignment is, in effect, that the court erred in overruling plaintiffs’ motion for a new trial because the evidence showed that prior to the execution of the deed of trust the property was the homestead of plaintiffs and there was no evidence to show that it had ever been abandoned as such. But, on the contrary, the evidence conclusively showed that it had not been so abandoned.

We are unable to concur in this contention. The evidence shows without controversy that Mrs. Bradshaw was formerly the wife of J. B. Seaton, now deceased; that she and her former husband were living upon a farm at the time they purchased the property in controversy; and that they lived on the latter property up to the date of the death of Mr. Seaton, a period of about one year and a half. She testified as follows:

“We bought us a borne at Potosi, moved and made a loan on the farm because Mr. Seaton was not able to work, and we needed other improvements on the farm for renters so as they could move there on the farm, and so we made Potosi our home and received the rent from the farm for maintenance.” ,

She further testified that immediately after the death of her husband she resided at the Potosi home for some three weeks, then went to Comanche for medical treatment, and while Hiere married H. C. Bradshaw, one of the plaintiffs in the case. Since that marriage she and her husband have resided in the town of Comanche upon rented property. The deed of trust and notes were executed in the town of Comanche, and the plaintiffs had been living there for about one year pri- or to the date of the deed of trust. Both she and her husband testified that they claimed the Potosi property as their homestead, which was in Taylor county; that they were renting it; but that such rental was temporary only. But H. C. Bradshaw testified that he had resided in Comanche county some ten years, that he paid his poll tax and voted in that county, and that he had never resided in any other county in the state. He further testified:

“As to what my intentions were with reference to occupying the Potosi property as my homestead, I expected to move back there whenever it suited me.”

These circumstances in connection with the further fact of the execution of the deed of trust itself are'sufficient to support the judgment of the court, and, accordingly, the assignment of error is overruled.

The judgment is affirmed.

On Motion for Rehearing.

Appellants earnestly insist that we erred in refusing to consider the first five assignments of error contained in their brief. Those assignments were stricken out upon motion of appellees because they were not copies of the grounds assigned for a new trial in the court below. By act of the Thirty-Third Legislature (Gen. Laws. 1913, p. 276), article 1612 of the Revised Civil Statutes is so amended as to provide that:

“Where a motion for new trial has been filed that the assignments therein shall constitute the assignments of error and need not be repeated by the filing of the assignments of error.”

The first five assignments of error are in no sense even substantial copies of the assignments in the motion for new trial, and for that reason we sustained the motion to strike them out. In appellant’s brief the first three assignments are grouped, and following the third is a copy of the first paragraph of the plaintiffs’ motion for a new trial. Each of those assignments concludes with a statement that the question therein presented is fully raised in the first paragraph of the motion for new trial. The fourth assignment concludes with the statement that the question therein raised is presented in the second paragraph of the motion for new trial, a copy of which follows the assignment. The fifth assignment concludes with the statement that the question therein presented is raised in the third paragraph of the motion for new trial. We are clearly of the opinion that we did not err in striking out those assignments. Edwards v. Youngblood, 160 S. W. 288. But the error, if any, in that ruling worked no injury to appellants because substantially the same questions presented in the assignments stricken out were involved in the sixth assignment and were duly considered in our discussion of that assignment.

Appellants further insist that we were in error in enumerating the fact of the execution of the deed of trust itself as a circumstance tending to support the judgment of the trial court. It is insisted that such fact could not be legally considered as evidence tending to show an abandonment of the property in controversy as a homestead. Independent of that circumstance, we are of the opinion that the other circumstances enumerated in the former opinion, together with the fact that the testimony of appellants, themselves, who of course were interested parties, was the evidence chiefly relied on by them to support their claim of homestead, were sufficient to sustain the judgment of the trial court. H. E. & W. T. Ry. Co. v. Runnels, 92 Tex. 305, 47 S. W. 971; Heierman v. Robinson, 26 Tex. Civ. App. 491, 63 S. W. 657; Smith v. Milam, 143 S. W. 293; and other authorities there cited.

The motion is overruled.

SPEER, J., not sitting.


author: CONNER, C. J.

text:
    HOLLOMAN v. OXFORD et al.
    (No. 7972.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    May 9, 1914.)
    1. Subrogation (§ 3) — Payment of Debt of Another.
    Plaintiff, who had paid purchase-money notes and discharged of record a vendor’s lien against herself and a defendant jointly, was entitled, as against defendant and a purchaser from him with constructive notice, to subrogation to the rights of the holder to enforce payment of half of the joint indebtedness against defendant.
    [Ed. Note. — For other cases, see Subrogation, Cent. Dig. §§ 8-11, 76; Dec. Dig. § 3.]
    2. Vendor and Purchaser (§ 231) — Notice —Record—Statute.
    Where land was conveyed to plaintiff, and a defendant who jointly assumed the payment of outstanding purchase-money notes, and such notes were discharged by plaintiff out of her separate estate, the holder’s formal written assignment and conveyance to plaintiff of the notes and of the superior title retained to secure them was an instrument authorized to be recorded under Rev. St. 1911, art. 6823, permitting the recording of all deeds, conveyances, de-feasances, or instruments in writing concerning any lands; and hence, the instrument having been duly recorded, a purchaser of the defendant’s undivided half interest had constructive notice that plaintiff had paid the purchase-money notes and was entitled as against defendant and himself to enforce the payment of defendant’s part of the joint indebtedness.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 487, 513-539; Dec. Dig. § 231.]
    3. Subrogation (§' 33) —Extent — Attorneys’ Fees and Interest on Note.
    Plaintiff who, with defendant, purchased land and' jointly assumed the payment of outstanding vendor’s lien notes, and who discharged such notes out of her separate estate and took a written assignment and conveyance of record, on recovering one-half of the amount of such notes from defendant and a purchaser of his undivided interest with notice, was not entitled to recover interest at the rate named in the notes, or the attorneys’ fees specified therein and in the judgment.
    [Ed. Note. — For other cases, see Subrogation, Cent. Dig. §§ 96-98; Dec. Dig. § 33.]
    Appeal from District Court, Denton County; Chas. F. Spencer, Judge.
    Action by Mabel G. Oxford and her husband, J. N. Oxford, against George W. Oxford, Ira J. Holloman, and another, with cross-plea by Holloman against George W. Oxford. Judgment for plaintiff, and for Holloman, against George W. Oxford, and defendant Holloman appeals.
    Reformed and affirmed.
    Owsley & Owsley, of Denton, for appellant. A. Q. Mustain, of Pilot Point, for appellees.

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

   CONNER, C. J.

On the 5th day of August, 1904, H. A. Hale, Elizabeth Dowdell, and others, not necessary to mention, sold and conveyed to E. B. Hearne four certain tracts of land in Denton county described in the plaintiffs’ petition in this ease. In part payment therefor, Hearne executed five promissory notes each for the sum of $400, the first two of which were made payable to H. A. Hale or order, and the last three were made payable to Elizabeth Dowdell or order, and maturing by their terms on the 1st days of January, 1906 to 1910, respectively, and all secured by vendor’s lien on the land. The two notes payable to Hale were duly paid and the liens securing them released. On the 21st day of August, 1909, F. B. Hearne sold and conveyed the land in question to Geo. W. Oxford and Mabel G. Oxford, who in part payment of the purchase money jointly assumed the payment of the last three notes executed by Hearne, and which, as stated, were payable to Elizabeth Dowdell on January 1, 1908, 1909, 1910, respectively, being notes 3, 4, and 5 of the series described in the deed from Hale to Hearne. On the 8th day of March, 1910, Mabel Oxford paid to Elizabeth Dowdell out of her separate estate $1,210, the full amount of principal and interest due upon the three unpaid notes of Hearne, in consideration for which Elizabeth Dowdell executed and delivered to Mabel Oxford formal written assignment and conveyance of said notes 3, 4, and 5 of the Etearne series and of the superior title retained to secure the same. This conveyance was duly recorded in Denton county on the 16th day of March, 1910. Thereafter, on the 2d day of February, 1912, G. W. Oxford, joined by his wife, conveyed his undivided one-half interest in said land to appellant, I. J. Holloman. As part consideration Holloman assumed the payment of note No. 5 of the Hearne series, G. W. Oxford representing at the time that notes 3 and 4 of the series had been paid, as evidence of which Oxford exhibited to Hollo-man a release from Mrs. Elizabeth Dowdell of the vendor’s lien for the first four notes of the series mentioned; the release from Mrs. Elizabeth Dowdell reciting that the last note for $400 alone remained unpaid. This release from Elizabeth Dowdell was dated in February, 1912. At the time of appellant’s said purchase and assumption, he had no actual notice of the assignment and conveyance hereinbefore mentioned by Elizabeth Dowdell to Mabel Oxford. Mabel Oxford, however, was without knowledge or participation in the false representations of G. W. Oxford, and she therefore joined by her husband, instituted this suit against Hearne, G. W. Oxford, and appellant seeking to recover one-half of the amount evidenced by the three notes that she had paid to Elizabeth Dowdell with prayer as against appellant for a foreclosure of the vendor’s lien. Upon proof of the foregoing facts, which are substantially undisputed, the court gave a peremptory instruction to the jury, following which judgment was entered in favor of appellees, and appellant has prosecuted this appeal.

The judgment was for $839, which included interest at the rate of 10 per cent, per an-num and $76.25 attorney’s fees as specified in the notes upon which the plaintiff declared. For this sum the lien was foreclosed upon the undivided one-half interest that had been purchased by appellant; the judgment, however, providing that it should operate against appellant personally to the extent of $200 only. The judgment further found in accordance with appellant’s cross-plea in favor of Holloman against George W. Oxford for $400 with interest, etc.

We are of the opinion that the evidence was insufficient to raise the issue of fraud on the part of Mabel G. Oxford. The judgment gave to appellant all the relief available to him because of the fraud of G. W. Oxford and in refusing to submit the issue as to Mabel G. Oxford there was, as indicated, no error.

Objection is also made to the court’s peremptory instruction, but the objection must be overruled. We think the assignment and transfer of the legal title from Elizabeth Dowdell to Mabel G. Oxford was an instrument authorized to be recorded under our registration statutes. See article 6823, Revised Statutes; Ballard v. Carmichael, 83 Tex. 355, 18 S. W. 734; Tevis v. Collier, 84 Tex. 638, 19 S. W. 801. If so, regardless of the evidence tending to show that appellant had actual knowledge of facts sufficient to put him upon inquiry, its effect was to give notice to appellant that Mabel G. Oxford had at least paid the three vendor’s lien notes that had been assumed by herself and G. W. Oxford, and that, regardless of whether the assignment operated as a transfer of the notes, she was at least entitled to the equitable right, as against G. W. Oxford and his vendees with notice, to be subrogated to the rights of Elizabeth Dowdell to enforce the payment of that part of the joint indebtedness properly resting upon G. W. Oxford. In such event, also, it seems manifest that the subsequent release of the vendor’s lien note by Elizabeth Dowdell in February, 1912, was of no force. She had already divested herself by the transfer to Mabel G. Oxford of the superior title originally vested in her, and the subsequent release was of no authorized force. While we are of opinion that the plaintiffs’ cause of action was upon the promise of contribution by G. W. Oxford that the law implies, rather than upon the notes themselves (see Faires v. Cockrell, 88 Tex. 428, 31 S. W. 190, 639, 28 L. R. A. 528), yet the distinction in this case, is not very material, affecting, as we can see it, only that part of the judgment which was for attorney’s fees and interest at an unauthorized rate. For under the undisputed facts the right of Mahel G. Oxford to be subrogated to the rights of Elizabeth Dowdell to enforce the payment of that part of the joint indebtedness assumed by G. W. Oxford actually paid cannot be questioned. See Faires v. Cockrell, supra; Beville v. Boyd, 16 Tex. Civ. App. 491, 41 S. W. 670; s. c., 42 S. W. 318, and authorities therein cited.

In the case last cited it was held that a surety paying without suit a note that had been assigned to him by the payee providing for attorney’s fees might recover such attorney’s fees; the opinion proceeding upon the theory of that line of authorities which hold that in such case the surety’s cause of action is upon the original obligation. But later on appeal our Supreme Court held otherwise, adhering to the principle, stated in Paires v. Cockrell, that the surety’s cause of action was not upon the note, but upon the implied assumption, which, of course, was without agreement to pay attorney’s fees or interest at a specified rate. See Boyd v. Beville, 91 Tex. 439, 44 S. W. 287.

If we are correct in the foregoing conclusions, appellees were not entitled to recover interest at the rate named in the notes, or the attorney’s fees specified in the judgment. The judgment will therefore be so reformed as to give appellees a decree against G. W. Oxford personally for $605, with interest thereon from the date of Mabel Oxford’s payment on the 8th day of March, 1910, at the rate of 6 per cent, per annum, and a like judgment against appellant for $200, with interest as last mentioned from the said 8th day of March, 1910, with a foreclosure of the equitable lien of a vendor as against all parties upon the lands owned by appellant. As so reformed, the judgment will be affirmed, with cost of the appeal taxed against appellees.

Reformed and affirmed.


author: SPEER, J.

text:
    SHUTTLESWORTH v. ARMOUR & CO.
    (No. 7961.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    May 2, 1914.)
    Appeal and Ebrob (§ 770) — Briefs—Failure to Pile.
    Where plaintiff in error fails to file a brief, the brief of defendant in error may, under rule 42 (142 S. W. xiv), be accepted by the Court of Civil Appeals as a correct presentation of the case without examination of the record further than to see that the judgment is one that can be affirmed upon view of- the cause as presented by defendant in error.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3104, 3106, 3107; Dec. Dig. § 770.]
    Error to District Court, Tarrant County; Marvin H. Brown, Judge.
    Action by S. H. Shuttlesworth against Armour & Company. There was a judgment for defendant', and plaintiff brings error.
    Affirmed.
    Clendenen, Simmons & Cameron, of Pt. Worth, for plaintiff in error. Capps, Canty, Hanger & Short, of Ft Worth, for defendant in error.

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

   SPEER, J.

S. H. Shuttlesworth filed this

suit against Armour & Co., to recover the sum of $3,000 for personal injuries alleged to have been sustained by him while in the employ of the defendant company. The defendant answered with a general denial and special denials of the allegations of negligence and injuries, and otherwise answering specially. There was a trial before a jury resulting in a verdict and judgment for the defendant, and the plaintiff prosecutes this writ of error.

Plaintiff in error has filed no brief, though the defendant in error has, and we are therefore permitted under rule 42 (142 S. W. xiv) to regard this brief as a correct presentation of the case without examining the record further than to see that the judgment is one that can be affirmed upon the view of the case as presented by defendant in error. It is obvious that a verdict and judgment for the defendant, in a personal injury case where there is an appearance by the defendant, and a proper appeal has been perfected, is one that can be affirmed upon almost any view of the case, especially where, as here, there is no statement of facts in the record. The judgment of the district court is therefore affirmed.

Affirmed.


author: HENDRICKS, J.

text:
    J. M. GUFFEY PETROLEUM CO. v. DINWIDDIE.
    (No. 630.)
    (Court of Civil Appeals of Texas. Amarillo.
    June 6, 1914.)
    1. Trial (§ 349) — Special Interrogatories — Statutory Peovisions.
    Rev. St. 1911, art. 1984a, passed by the last Legislature (Acts 33d Leg. c. 59), requiring the court in all jury cases, upon request of either party, to submit the cause upon special issues, provided that, if the nature of the suit is such that it cannot be determined on the submission of special issues, the court may refuse such request, but such refusal may be reviewed on proper exception in the appellate court, is mandatory and requires such submission in a cause of such a nature as to be determinable on special issues, even though this construction renders the proviso meaningless.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 823-827; Dec. Dig. § 349.]
    2. Teial (§ 349) — Special Interrogatories —Statutory Provisions.
    In an employé’s action for injuries caused by falling from a ladder on an oil derrick, plaintiff alleged that a step of the ladder was insecurely fastened and insufficient to .bear his weight, and that defendant failed to inspect it, though by reasonable inspection such defective condition could have been discovered. Defendant pleaded contributory negligence, assumed risk, and a contract of settlement, to which plaintiff replied, alleging a lack of mental capacity to execute such contract. Replying to the reply, defendant alleged that, if plaintiff was mentally incompetent when the contract was executed, he thereafter ratified it with a conscious knowledge of its previous execution by appropriating the proceeds of the settlement. Meld, that the cause was one which could be determined on special issues, within Rev. St. 1911, art. 1984a, as added by Acts 33d Leg. c. 59.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 823-827; Dec. Dig. § 349.]
    3. Appeal and Error .(§ 1170) — Harmless Error — Submission of Special Issues.
    Rule 62a for Courts of Civil',Appeals (149 S. W. x), providing that no judgment shall be reversed for error on the trial unless the appellate court shall be of opinion that it amounted to such a denial of appellant’s rights as was reasonably calculated to cause and probably did cause an improper judgment, does not apply to the trial court’s refusal to submit a cause on special issues, as expressly directed by Rev. St. 1911, art. 1984a, as added by Acts 33d Leg. c. 59.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4032, 4006, 4075, 4098, 4101, 4454, 4540-4545; Dec. Dig. § 1170.]
    4. Master and Servant (§ 285) — Actions for Injuries — Questions for Jury.
    In an employé’s action for injuries caused by falling from a ladder on an oil derrick, evidence held to make a question for the jury as to whether the accident was due to a defect in the ladder and not to present a case of mere speculation or conjecture.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1002, 1003, 1007, 1008, 1016, 1035, 1043, 1053; Dec. Dig. § 285.]
    5. Master and Servant (§ 265) — Actions for Injuries — Presumptions and Burden of Proof.
    In an employé’s action for injuries, caused by falling 52 feet from a ladder where the resulting concussion and injury was such that the circumstances of the accident were a blank to him, it would be presumed that he was exercising due care, in the absence of circumstances pointing to the contrary.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 877-908, 955; Dec. Dig. § 265.]
    6. Master and Servant (§ 239) —Liability for Injuries — Contributory Negligence.
    An employé pursuing a dangerous method of ascending an oil derrick, where an ordinarily prudent person would have pursued a safer method, was guilty of contributory negligence.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 749, 750; Dec. Dig. § 239:]
    7. Master and Servant (§ 293) — Actions for Injuries — Instructions—Appliances.
    In an employé’s action for injuries caused by falling from a ladder alleged by plaintiff to have been defective, the court should have charged that it was the employer’s duty to exercise ordinary care to furnish the employé with reasonably safe appliances with which to work and to exercise the same character of diligence in keeping them in condition, and the instruction given that it was the- employer’s duty to furnish the employé with reasonably safe appliances for the purpose for which they were to be used, and, after having provided such appliances, to keep them in a reasonably safe condition, might not meet the full measure of the law.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1148-1156, 1158-1160; Dec.. Dig. § 293.]
    8.Trial (§ 355) — Special Interrogatories —Ultimate or Evidentiary Facts.
    Under Rev. St. 1911, art. 1984a, as added by Acts 33d Leg. c. 59, requiring the court upon request to' submit causes upon special issues raised by the pleadings and the evidence, and article 1985, providing that a special verdict must find the facts established by the evidence and not the evidence by which they are established, an interrogatory should be so framed as to evoke a finding upon fact issues, and a finding of merely evidential facts is improper.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 846-848; Dec. Dig. § 355.]
    • Appeal from District Court, Wichita County; P. A. Martin, Judge.
    Action by T. B. Dinwiddie against the J. M. Guffey Petroleum Company. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    Carrigan, Montgomery & Britain, of Wichita Falls, and F. C. Proctor and D. Edward Greer, both of Beaumont, for appellant. E. W. Nicholson and J. M. Blankenship, both of Wichita Falls, for appellee.

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

   HENDRICKS, J.

The appellee, Dinwiddie, sued the appellant, J. M. Guffey Petroleum Company, to recover damages for personal injuries, alleged by him to have been sustained on account of falling from an oil derrick situated over one of appellant’s wells, claiming, at the time of injury, that, in the performance of his duty as an employé of said company, he was climbing a ladder upon the derrick for the purpose of pulling tubing from said well; that at the height of about-52 feet, and while ascending the ladder, attached to the derrick for that purpose, one of the steps of the ladder gave way, precipitating him to the ground, appellee particularly claiming that the steps on said ladder were insecurely fastened and insufficient to bear his weight in climbing said derrick, the particular step having been nailed and fastened with two eightpenny nails driven through each end of same into pine timber, constituting negligence of the defendant. Ap-pellee also alleged that the nails driven in the end of the steps had not been tightened since the construction of the derrick, and defendant had failed to inspect the same since construction, and by reasonable inspection could have discovered the defective condition of said steps.

Appellant, in addition to pleading contributory negligence and assumed risk, alleged a written contract of settlement with appellee, to which latter the appellee replied by asserting a lack of mental capacity at the time of the execution of said contract; the appellant replying to this pleading that, if ap-pellee was mentally incompetent at the time he executed the contract of settlement, he thereafter ratified the same with a conscious knowledge of its previous execution by an appropriation of the proceeds of said settlement, or a part of same, to his own use.

At the close of the evidence, before the trial judge had .written his main charge, the appellant requested in writing the submission of the case upon special issues, which was refused by the court, also submitting to the court, as a part of its request, some 17 special issues prepared for that purpose, all of which the court refused, which action of the court is properly assigned herein as error, and which assignment we will have to sustain.

The following article, 1984a, passed by the last Legislature, on the question of the submission of special issues, we think has a controlling effect in this matter:

“In all jury cases the court, upon request of either party, shall submit the cause upon special issues raised by the pleadings and the evidence in the cause. Such special issues shall be submitted distinctly and separately, and without being intermingled with each other, so that each issue may be answered by the jury separately. In submitting special issues the court shall submit such explanations and definitions of legal terms as shall be necessary to enable the jury to properly pass upon and render a verdict on such issue, and the court may submit said cause upon special issues without request of either party, provided that, if the nature of the suit is such that it cannot be determined on the submission of the special issues, the court may refuse the request to do so, but the action of the court in refusing may be reviewed on proper exception in the appellate court, and this article shall be construed in connection with article 1985, of chapter 14, title 37, Revised Statutes.”

In the cause of G., H. & S. A. Ry. Co. v. Jackson, 92 Tex. 638, 50 S. W. 1012, 51 S. W. 330, Chief Justice Gaines had under consideration the construction of the following article, passed by the Legislature as an amendment to the Revised Statutes of 1879, and also brought forward into the Acts of 1895:

“Art. 1333. The jury shall render a general or special verdict, as shall be directed by the court, at the request of a party to the suit, and the verdict shall comprehend the whole issue, or all the issues submitted to them,” etc.

The Supreme Court traced the mutations of this particular article through successive periods in legislative action. Previously article 1333 read as follows:

“The jury shall render a general or special verdict as may be directed by the court; and the verdict shall comprehend the whole issue or all the issues submitted to them,” etc.

By the amendment previously quoted and passed by the Legislatures of 1879 and 1895, the word “may,” it is noted, is substituted for the word “shall.” The Legislature in said amendment further interpolating the language “at the request of a party to the suit,” with reference to which, by the changes as indicated in the amendment, made the law mandatory, when the request was properly made, which, before said amendment, was in the discretion of the trial judge. It is observed that article 1984a, passed by the last Legislature, reads:

“In all jury cases the court, upon request of either party, shall submit the cause upon special issues raised by the pleadings and the evidence in the cause,” etc.

The similarity of this portion of the article-to the amendment construed as mandatory by the Supreme Court in the Jackson Case, supra, would ordinarily preclude argument that it was discretionary with the trial judge, when properly requested; it would be his duty to submit. Appellee rather concedes in its brief that the statute would be mandatory upon a trial court, in matters of this kind, had not the Legislature, he says, inserted in the act the words, “provided that if the nature of the suit is such that it cannot be determined on the submission of special issues, the court may refuse the request to do so,” and arguing therefrom that the trial court is the ultimate répository of the power to determine the nature of the suit when the request is made, ¿nd that, if an abuse of discretion is not shown, the error does not exist; in other words, that under this statute, as previously under the old act, previous to the amendment of 1879 and 1895, it is discretionary with the trial court, in the determination of the matter, whether the cause should be s.o submitted. Appellee says, if it had not been the intention of the Legislature-to give the trial court a discretion in this matter, then why should the Legislature incumber the act with the proviso? And, continuing, the argument, says:

“The lawmakers knew when they passed the act that all civil cases could be determined upon the submission of special issues; then what reason had the Legislature in placing the clause mentioned in the act, unless it was to give the trial court a discretion in the matter, and to make him the judge, in each case, as to whether or not the ends of justice would be best sub-served by submission of a case upon special issues, or upon general issue?”

This argument is ingenious, for the reason that it may be hard to determine or conceive just the character of case, the nature of which is such that it cannot be determined on special issues. However, the Legislature presumably had the previous legislation, its changes, and its construction in mind, and was aware of- its history, when the last act under consideration was passed; and it would seem that if that body really intended to make the statute directory, instead of using substantially the language C. J. Gaines construed to be mandatory, it would have-permitted the act, as to the matter of submission of special issues, to remain as it existed. To explain, in 1899 the Legislature again-changed article 1833, substituting the word “may” for the word “shall,” still, however, requiring the request to be made by a party to the suit as a condition to the submission-of special issues, and later 'Chief Justice Gaines, in the same case of Railway Co. v. Jackson, 93 Tex. 262, 54 S. W. 1024 (then upon writ of error in that tribunal), construed the amendment of 1899 as directory, which again made the submission of special issues discretionary with the trial court.

There is no cause decided in our reports, reviewing the action of a Mai court, where the submission of special issues has been refused and considered as error upon tlie ground of abuse of discretion. In some of the opinions, in holding that it was discretionary with the trial court, there is language used in substance that, unless it clearly appears that the court has abused that discretion, the appellate court will not revise its action. If a trial court has correctly and appropriately submitted the issues of a cause in a general charge, and a litigant attempts to show an appellate court that the trial court has abused its discretion, we believe that he would be “stumped.” He may, of course, indulge in abstractions as to the manner of his injury, but as a last analysis he could only say:

“This is a character of case, with its varied issues, which should have been submitted on special issues, because the justice of the case could have been better subserved by such a submission.”

Even then he could not say that the jury would have rendered any different verdict if it had been submitted on special issues, instead of upon a general issue, and could not say that the general verdict was an injury, in the sense that he could exhibit a deprivation of a legal right

Appellee says, it being the intention of the Legislature of 1913 to leave it to the discretion of the trial judge, “the complaining party must show that the court abused its discretion to appellant’s injury”; the logic being that, the trial court having decided “that the nature of the suit is such that it cannot be determined on the submission of special issues,” it ends the matter, unless an abuse of discretion, by showing some concrete injury, is exhibited, notwithstanding the Legislature further said, “The action of the court in refusing may be reviewed on proper exception in the appellate court.” How could an unsuccessful litigant exhibit that his rights were not attained by a general verdict, if every issue were appropriately submitted in a general charge? If inappropriately submitted in a general charge, it is the misapplication of the law, or a misunderstanding of the issues, or some act of omission, upon the part of the trial court, which constitutes the error and the injury, and not the mode of submission.

Chief Justice Gaines said in the Jackson Case, supra, 92 Tex. 640, 50 S. W. 1013, wherein he held the statute mandatory:

“In very complicated cases, it greatly promotes the administration of justice to have a jury find specially the facts of a case,” etc.

When this statute says, “In all jury cases the court, upon request of either party, shall submit the cause upon special issues,” unless the “nature of the suit is such” that it cannot be so determined, is it not more rational to say that, if the cause is one that can be submitted on special issues, the trial court has committed error, and it is the refusal of that character of cause, which “may be reviewed by proper exception in the trial court”? If the other construction is to prevail, what is the use of excepting and the appellate court attempting to review something which, practically speaking, cannot be reviewed?

You have to read into the statute, by ap-pellee’s construction, that the Legislature said that the trial court is the arbiter of the character of cause which should be submitted on special issues, notwithstanding his refusal in matters of this kind may be reviewed in the appellate court. Is it not more compatible with the meaning, if it means anything, that the appellate court may review the character of cause, which could, and should, have been submitted? If it is replied, though the appellant may except and have the matter reviewed, there is nothing to review for the reason that all cases may be submitted on special issues — even a cause with one issue may be so submitted — we are not, however, prepared to say that the proviso is meaningless (which is really the logic of appellee’s construction), because we are unable to conceive a case, the nature of which is such that it cannot be submitted in that manner. If it is meaningless, however, and does not establish an exception, because there is no exception that can be conceived, appellee may land upon this proposition: A proviso, “if irrelevant to the enacting part and meaningless with reference thereto, or repugnant to the body of the act, is rejected.” Lewis’ Sutherland on Statutory Construction, vol. 2, p. 674.

As Sedgwick on Statutory and Constitutional Law, p. 47, says:

“A saving clause in a statute, where it is directly repugnant to the purpose or body of the act, and cannot stand without rendering the act inconsistent, or destructive of itself, is to be rejected.”

The Supreme Court of Georgia, in the case of Jackson v. Moye, 33 Ga. 296, decided that:

“Where a proviso in an act is inconsistent with the purview (of the act), the latter must prevail.”

See Penick v. High Shoals Mfg. Co., 113 Ga. 592, 38 S. E. 973.

This cause is such as shown by the issues in our preliminary statement, and upon a consideration of the record, we believe should have been submitted on special issues, upon the request of the appellant, and, if so, the statute is mandatory, and rule 62a (149 S. W. x), cannot cure an error, where a statute has been violated.

Appellant urgently insists that negligence is not shown; that the evidence is insufficient. 1

Presenting the tendency of the testimony, upon appellee’s theory of the case, solely from the standpoint of its sufficiency as a jury question, we will say: It could be inferred that the appellee was ascending the ladder, and had not then arrived at the platform for the purpose of pulling the tubing, when he fell; that a step of the ladder, when he was first seen, was falling with him; that shortly after the accident a step of the ladder was found upon the ground, and that before the accident there was none; that the step which fell with him was torn from the ladder between the fifth and sixth girder; that it was fastened with eightpen-ny nails driven through the same, one nail in each corner of the step, and that two of the nails in the corners of the steps were, straight and unbent, while the other two in the opposite corners were bent downward, from which it might be inferred that appellee caught hold of the step with his hands as he was climbing the ladder, and that the top nail in each corner of the step pulled out; that in holding to the step with the partial weight of his body, and with the áct of falling, pulled the step from the upright to which it was nailed and in such a manner as to bend the nails in the bottom corners of same; that there was not a sufficient portion of the nail, after having been driven through the step, the latter 1% inches in dimension, to sufficiently penetrate the upright to which it was nailed as to constitute the ladder a safe appliance for the purpose of conducting the work in hand. Appellant says that the uncertainty of this proof is such that there are other causes equally infer-able, for which it is not liable, just as consistent with the accident as that its negligence is mere speculation or conjecture. Where applicable, we do not deny this principle ; it is fundamental; likewise it is fundamental that you cannot infer one presumption from another presumption. This should not be confounded, however, with the permissive principle that the fact of negligence may be proven by circumstantial evidence. The Supreme Court of Iowa, in the case of Paulsen v. Bettendorf Axle Co., 146 Iowa, 403, 125 N. W. 176, said that:

“Where the cause of an accident may be inferred from circumstances, * * * the mere suggestion of other possible theories does not make the inference to be drawn from such circumstances a matter of mere speculation or conjecture. When the plaintiff shows a reasonable explanation of the cause of his injury which indicates it to be the proximate result of defendant’s negligence, it is for the defendant to show some other cause at least equally conceivable and equally consistent with the proved or admitted facts to defeat plaintiff’s recovery.”

Appellant says that even appellee is unable to tell whether he slipped and fell, or pulled off the step, or kicked it off; appellee says, however, that the concussion and injury resulting from the.fall was such, that the circumstances of the accident were a blank to him, whieh is not improbable. In jurisdictions where proof of contributory negligence is upon the defendant in personal injury cases, it is said that the burden is upon the defendant to remove the presumption that the person for whose death the action was brought was in the exercise of due care at the time of the accident. Stewart v. Raleigh Air Line R. R. Co., 141 N. C. 255, 53 S. E. 877; Little Rock & Ft. Scott R. R. Co. v. Eubanks, 48 Ark. 460, 3 S. W. 808, 3 Am. St. Rep. p. 245. See La Batt on Master & Servant, vol. 4 (2d Ed.) p. 4913, with annotations, for a full discussion upon this subject.

If the injuries to the appellee were such that the incidents of the accident are a blank to him, the rule would apply that he is presumed to have been exercising due care at that time, if the circumstances did not point to the contrary. Of course this rule would not overcome the proposition raised by appellant that if appellee was pursuing a dangerous method of ascending the derrick, and if an ordinarily prudent person would have pursued, with the use of his 'arms, a safer method for that purpose, appellee may have been guilty of contributory negligence, contended for by appellant to have been raised by the testimony of a co-worker, by suggestions made by the latter to appellee of a safer method. Railway Co. v. Matthews, 100 Tex. 63, 93 S. W. 1068; Railway Co. v. Malone, 102 Tex. 269, 115 S. W. 1158; Railway Co. v. Wall, 102 Tex. 269, 115 S. W. 1158.

The objections and criticisms of the appellant to the general charge of the trial court, in the main, become immaterial if the cause is to be submitted on special issues, and we- are presuming upon the continuation of the request We would suggest, though, that it might be more proper for the trial court to charge that it was the duty of the master to exercise ordinary care to furnish the servant with reasonably safe appliances with which to work, and to exercise the same character of diligence in keeping them in condition. Railway Co. v. Gormly, 91 Tex. 398, 43 S. W. 877, 66 Am. St. Rep. 894.

The court charged that, when the plaintiff Dinwiddie entered the employ of the defendant, it became the duty of the defendant “to furnish plaintiff, as servant, with reasonably safe appliances for the purpose for which they were to be used, and it was the duty of the master, after having provided such appliances, to keep the same in a reasonably safe condition,” etc., which may not meet the full measure of the law in that respect.

An interrogatory should be so framed as to evoke a finding upon fact issues, and a finding of merely evidential facts is improper. The statute says that the court shall submit the cause upon the issues raised only by the pleadings and the evidence. It is also statutory that the special verdict “must find the facts established by the evidence, and not the evidence by which they are established.” Article 1985. The nonobservance of the statute is often the cause of a multiplicity of findings, based upon numerous questions, some of which call for a finding of evidence instead of a finding of the issuable facts constituting the essential question in litigation.

For the error indicated, the cause is reversed and remanded for a new trial.


text:
    ROWE v. CRUTCHFIELD et al.
    (No. 7926.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    April 18, 1914.)
    1. Attachment (§ 374) — 'Wrongful Attachment-Evidence.
    In an action on a note, evidence held not to sustain a finding by the jury that an attachment was wrongfully issued and levied.
    [Ed. Note. — For other cases, see Attachment, Cent. Dig. §§ 1363-1372, 1392-; Dec. Dig. §
    2. Attachment (§ 374) — 'WRONGFUL Attachment-Evidence.
    That an attachment levied was quashed does not justify a finding that it was wrongfully issued and levied.
    [Ed. Note. — For other cases, see Attachment, Cent. Dig. §§ 1363-1372, 1392; Dec. Dig. § 374.]
    3. Attachment (§ 376) — 'Wrongful Attachment-Damages.
    A defendant is not entitled to damages as of course upon the mere wrongful issuance and levy of an attachment, but, to recover even nominal damages, some actual damage must be shown.
    [Ed. Note. — For other cases, see Attachment, Cent. Dig. §§ 1378-1385, 1387, 1393, 1394, 1398, 1399; Dec. Dig. § 375.]
    4. Appeal and Error (§ 742) — Assignments op Error — Propositions and Statements Accompanying Assignment.
    Assignments not followed by appropriate propositions or statements will not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    Appeal from Denton County Court; S. H. Hoskins, Judge.
    Action by T. A. Rowe against Marion Crutchfield and others. Judgment for defendants, and plaintiff appeals.
    Reversed and rendered.
    Robt. H. Hopkins and T. G. Milliken, of Dallas, for appellant. Zumwalt & ICey and Sullivan & Hill, all of Denton, for appellees.

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

   CONNER, C. J.

This suit was originally instituted in a justice court by T. A. Rowe against Marion Crutchfield and John Vaults upon a promissory note executed on the 22d day of December, 1906, by Marion Crutch-field, Eliza Crutchfield, and John Yaultz for the sum of $60, and bearing interest and providing for attorney’s fees as usual in such cases.

The defendants answered that Eliza Crutch-field was the principal, and that defendants were but sureties; that said principal had died since the execution of the note with administration upon her estate; and that the note had never been presented to the administrator for payment; and hence that the plaintiff was estopped. In addition to this plea they specially pleaded damages in the sum of $150, because of an alleged wrongful issuance and levy of an attachment.

Upon the disposition of the case in the justice court, it was appealed to the county court and again tried upon the issues stated where the plaintiff, upon the verdict of a jury, was adjudged the amount sued for on his note, with interest from its date, less the sum of $75 found by the jury as damages because of a wrongful issuance and levy of the attachment. The amount of the judgment in plaintiff’s favor after the deduction stated was $24.50.

Substantially the only question presented by appellant’s assignments of error is whether the evidence supports the verdict of the jury in appellee’s favor on the issue of damages. We are of the opinion that the assignments raising this question must be-sustained. The evidence tending to support the issue amounts only to proof that an attachment was issued, levied, and later quashed, and that, at the time of the levy of the-attachment, the appellee Marion Crutchfield “had stuff out of which the plaintiff could have collected his debt.” Appellee also urges evidence to the effect that, prior to the institution of the suit, the defendant had offered the plaintiff “$50.” The writ of attachment, however, was not' offered in evidence nor the circumstances of its levy shown. It merely appears that it was levied and later quashed. The ground upon which the writ was quashed is not shown. It appears that, after the levy and quashal of the writ, the property was returned to the defendant Crutchfield. All he testifies upon the subject is: “I think they set aside that attachment up there some way, They did not hold my stuff.” There was no showing that the allegations in the affidavit of attachment were untrue. For aught that appears in the record, the defendants may have had the property referred to in their testimony, and yet it might have been true that they were about to transfer the same for the purpose of defrauding their creditors, or some other ground authorizing the writ may have-in fact existed.’ Neither is there any evidence referred to tending to show the character of the property levied upon, whether real or personal, how long it was retained by the sheriff, nor that it was in a damaged condition when returned, nor that the defendants were entitled to recover for its use and detention, nor that the amount of $50 was all that was due upon plaintiff’s note at the time of the offer. Something more than this, we think, must be shown to authorize-the imposition of compensatory damages for the issuance and levy of an attachment. A defendant is not entitled to damages as of course upon the mere issuance and levy of a writ. In order to recover even nominal damages, some actual damage must be shown. See Jordan v. David, 20 Tex. 712; Gardner v. Bell, 14 Tex. Civ. App. 356, 38 S. W. 239; Hume v. Netter A. Geismar & Co., 72 S. W. 865; Seal v. Holcomb, 48 Tex. Civ. App. 330, 107 S. W. 916. We are of the opinion, therefore, that the verdict and judgment in behalf of appellees for damages in the sum of $75, as recovered by them, should be set aside.

Appellees also complain and ask for a reversal of the judgment by cross-assignments of error. These assignments are numbered first, second, third, fourth, fifth, sixth, seventh, and eighth. They follow each other consecutively, but none of them are followed by appropriate propositions or statements, as required by the rules, and hence cannot be considered, as has been many times determined in like cases.

The record discloses that appellee Marion Crutchfield, whose property it seems was levied upon, testified as a witness upon the trial, and there is nothing to suggest that upon another trial his testimony would be other or different on the issue of the wrongful issuance of the attachment. Under such circumstances, we hardly feel justified in remanding the case merely to afford said appellee an opportunity to offer additional evidence that may possibly exist. We accordingly conclude that the judgment should be reversed and here rendered for appellant for the amount of his note, together with interest and attorney’s fees, as shown in the evidence, and denying appellees any recovery on their cross-plea for damages.

Judgment accordingly.