author: DUNKLIN, J.

text:
    KIMMELL v. EDWARDS et al.
    (No. 8459.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Jan. 20, 1917.
    Rehearing Denied Peb. 24, 1917.)
    1. Peocess <&wkey;24, 64 — Statutory Requirements — Irregularity and Effect.
    The statutory requirements regarding citations and the service thereof must be strictly followed to acquire jurisdiction.
    [Ed. Note. — Por other cases, see Process, Cent. Dig. §§ 9, 19, 55, 56, 76-82.]
    2. Process &wkey;>66 — Validity—Copy of Petition.
    Service of a citation without a copy of the petition certified to be such, is insufficient where defendant lives in another county, although a copy of the petition was attached to the citation and certified to state the nature of the plaintiff’s demand.
    [Ed. Note. — Por other cases, see Process, Cent. Dig. § 53.]
    3. Notice &wkey;>6 — Pacts Putting on Inquiry.
    A person is charged with notice of a fact when he has notice of other facts sufficient to put a reasonably prudent person upon inquiry, and which, if pursued with reasonable diligence, would lead to the discovery of such fact.
    [Ed. Note. — Por other cases, see Notice, Cent, Dig. § 4r-7.]
    4. Notice <&wkey;15 — Jury Question.
    Ordinarily, knowledge of an existing state of facts' is a jury question.
    [Ed. Note. — Por other eases, see Notice, Cent. Dig. § 41.]
    5. Judgment <&wkey;138(3) — Setting Aside De-fauliv-Lack of Diligence.
    A default judgment cannot be set aside for lack of proper service if a person of ordinary prudence would have discovered the judgment’s entry in time to have filed a motion for new trial at the same term of court.
    [Ed. Note. — Por other cases, see Judgment, Cent. Dig. § 254.]
    6. Judgment <&wkey;463 — Setting Aside Default — Jury Question.
    Whether a defendant defectively served should have discovered a default judgment in time to have' moved for a new trial at the same term of court held a jury question.
    [Ed. Note. — Por other eases, see Judgment, Cent. Dig. ■§ 896.]
    7. Process <&wkey;52 — Authority to Serve — De ■Pacto Officer.
    , Service by a person generally recognized as the acting constable is sufficient. ,
    [Ed. Note. — Por other cases, see Process, Cent. Dig. §§ 59-63.]
    Appeal from District Court, Taylor County ; Thomas L. Blanton, Judge.
    Suit by John C. Kimmell, Jr., against E. P. Edwards and others. Judgment for defendants, and plaintiff appeals.
    Reversed and remanded.
    Cunningham & Oliver, of Abilene, for appellant. J. M. Wagstaff, of Abilene, and D. M. Cogdell, of Winters, for appellees.
   DUNKLIN, J.

This suit was instituted by John C. Kimmell, Jr., to cancel a certain judgment for $1,329.15 against him in favor of E. P. Edwards, rendered by the district court of Taylor county, and to restrain the threatened collection of said judgment by execution, and from a judgment in the present suit denying the relief sought, the plaintiff has appealed.

It was alleged in plaintiff’s petition that the former judgment was void and of ho legal effect by reason of the fact that he was never served with a citation and certified copy of plaintiff’s petition in such suit; that the suit was instituted in Taylor county, and defendant therein then resided in Ellis county; that no appearance was entered in said suit by him, and' he never waived the issuance and service of proper process therein; and that the judgment so rendered was by default. It was further alleged in the petition that the cause of action asserted in that suit was a promissory note executed by plaintiff,, Kimmell, in favor of A. B. Cogdell, for an undivided one-half interest in and to a stock of merchandise purchased for a total consideration of $1,500 from the said Cogcjell, of which the sum of $500 was paid in cash, at the time oí such purchase, and said note executed for the balance; that plaintiff received no valuable consideration for said note; that afterwards said E. F. Edwards purchased the note from the payee with full notice of such lack of consideration; that plaintiff was a minor at the time he executed the note, and he repudiated the same, both before and after he reached his majority. He further alleged that he never realized but $35 from the sale of the merchandise so purchased by him from Cogdell and later disposed of. He further alleged that he had no knowledge of the rendition of said jugment on February 27, 1912, until January 28, 1915, at which time it was too late to prosecute a writ of error or appeal from said judgment, and for that reason no such steps had been taken.

Upon the trial plaintiff admitted that he was served with a copy of the citation issued in said suit, but testified that no certified copy of the petition was attached to the citation and served upon him at that time. There was testimony in a measure tending to controvert the latter statement, but it was uncontroverted that the copy of the citation which was served upon him contained a true copy of the plaintiff’s petition in the suit upon which the citation was issued. The judgment rendered in that suit was by default, and was dated February 27, 1912, and the present suit was instituted April 6, 1915. Plaintiff further testified that he did not learn that the judgment had been rendered against him until Christmas of the year 1914. He further testified that when he was served with the citation he showed it to his father, and also to his brother-in-law, and further as follows:

“I did not have any lawyer. I did not employ any lawyer at all. I am not a lawyer, and I didn’t know whether there was or was not anything wrong with the citation, and I don’t know now. Why; no, I didn’t expect or know that there was going to be a judgment rendered against me. I took this thing to my father and asked him about it, and he said that it was no account, and that they could not do anything with it. I expected a judgment would be rendered against me on it until I went and asked my father about it, and he told me that they could get no judgment against me. I did not think then they would get a judgment against me. I never made any inquiry afterwards to see whether a judgment had been rendered against me, and never took any steps at all to find out whether any judgment had been rendered against me. I don’t remember the date I was cited to appear. At the time ! had a conversation with my father about this matter my mother did not try to get me to come and find out about it. She knew that I could not come; that I did not have the wherewith to come nor to hire a lawyer at the time. X did not figure that I was insolvent, and that it would do no good for them to get judgment against me. I.didn’t figure anything about it.”

The evidence further shows that at the time of service of the citation upon him in that case he was more than 22 years old.

Following the identification of plaintiff’s petition'filed in that suit by giving the date . of its filing, the parties plaintiff and defendant, and the file number of the suit, the citation contains this statement: “The nature of the plaintiff’s demand is as follows, to wit.” Immediately following that statement is a full and complete copy of the petition, including the names of the attorneys who signed the same for the plaintiff, and the citation was duly signed and attested by the clerk of the court who issued it. ■ After hearing the evidence indicated above, the trial judge refused to hear further evidence in support of plaintiff’s allegations that he had a meritorious defense to the cause of action asserted in the former suit, and instructed a verdict for defendant Edwards; and error is assigned to that instruction.

It is well settled by the decisions that, in order to acquire jurisdiction of the defendant, the requirements of the statutes with respect to citations and the service thereof must be strictly followed. In Durham v. Betterton, 79 Tex. 223, 14 S. W. 1060, Duke v. Spiller, 51 Tex. Civ. App. 237, 111 S. W. 787, and Crenshaw v. Hempel, 60 Tex. Civ. App. 385, 130 S. W. 731, it was held that the failure of the citation to give the number of the suit on the trial docket was fatal to a judgment by default on an appeal from such judgment. In Le Master v. Dalhart Real Estate Agency, 56 Tex. Civ. App. 302, 121 S. W. 185, and Leavitt v. Brazelton, 28 Tex. Civ. App. 3, 66 S. W. 466, it was held that the failure of the citation to give the date that the petition was filed was also fatal. In Lauderdale v. Ennis Stationery Co., 80 Tex. 496, 16 S. W. 308, and Lazarus v. Barrett, 5 Tex. Civ. App. 5, 23 S. W. 822, it was held that the failure to serve the defendant with a certified copy of the petition was insufficient to give jurisdiction, even though a true copy in fact was served. See, also, Roberts v. Stockslager, 4 Tex. 307; Tullis v. Scott, 38 Tex. 542.

The copy of the petition shown in the citation was not certified to by the clerk as a true copy of the petition, but it was only certified as a statement of the nature of the cause of action set forth in the petition, and we are of the opinion that the service of this citation, without the service of a certified copy of the petition also, was insufficient to give the court jurisdiction over the defendant Kimmell. The present suit was a direct attack upon the judgment rendered in the former suit, and if jurisdiction of the court did not attach, that fact would be a sufficient basis to sustain such attack, provided Kimmell is not precluded from resorting to such a suit by the rules of equity applicable in such cases. Harn v. Phelps, 65 Tex. 592, was a suit to set aside a judgment rendered at a former term of the court, and in that case our Supreme Court said:

“To entitle .the appellants to the relief now sought it is necessary that they should show that they were prevented from urging, against the judgment of which they complain, objections which would, or ought to, have prevented its •rendition, and that this prevention resulted from fraud, accident, or the act of the adverse party, ■without fault or negligence on their part. Goss v. McClaren, 17 Tex. 107 [67 Am. Dec. 646]; Plummer v. Power, 29 Tex. 7; Yardeman v. Edwards, 21 Tex. 727; Overton v. Blum, 50 Tex. 417; Johnson v. Templeton, 60 Tex. 289; Nevins v. McKee, 61 Tex. 413.”

In Brownson v. Reynolds, 77 Tex. 254, 13 S. W. 9S6, which, likewise was a suit brought to set aside a Judgment rendered in a former suit, the following was said:

“It is also a fixed rule that a court of equity will not interfere to set aside a judgment and grant a new trial except upon a showing of strict diligence in the presentation of the cause, and upon proof that, after doing all that such diligence required to be done, he had been deprived by fraud, accident, mistake, or other uncontrollable circumstances, of the opportunity of properly presenting his case upon the trial. And if after it has become apparent that he must fail in his suit, he fails to avail himself of all means at his disposal to arrest the judgment and to exhaust every legal remedy to vacate it after it has been rendered, relief will he denied. That the complainant has a meritorious case, and that he has been compelled to suffer an adverse judgment by circumstances wholly beyond his control, are the fundamental grounds upon which the equity to demand a new trial must rest.”

In Johnson v. Templeton, 60 Tex. 238, which was an original action to set aside a judgment rendered in a former suit, our Supreme Court said:

“Where the final judgment of a court of competent jurisdiction has been once solemnly pronounced, it ought not to be lightly disturbed. It is alike the interest of individual suitors and of the public at large that there should be at some period an end put to litigation. Eor these and many other good reasons, though the power of courts of equity to restrain final judgments and to entertain bills for new trial in such cases is well established, it never has at any time been regarded as a favorite one with chancellors. Such bills seeking relief from final judgments, solemnly rendered in the due and ordinary course of the administration of justice by courts of competent jurisdiction, are always watched by courts of equity with extreme jealousy, and the grounds upon which interference will be allowed are, confessedly, narrow and restricted. It will not be sufficient to show that injustice has been done by the judgment sought to be enjoined. It must further distinctly and clearly appear that this result was not caused by any inattention or negligence on the part of the person aggrieved, and he must, among other matters, show a clear case of diligence and of merit to obtain the interference of a court of equity in his behalf at such a stage of the case.”

Hamblin v. Knight, 81 Tex. 351, 16 S. W. 1082, 26 Am. St. Rep. 818, was a suit to enjoin the collection of a judgment rendered at a former term of court. It appeared that the complainant had never been served with citation, nor had he voluntarily appeared, or authorized any one to enter an appearance for him in the former suit, and it further appeared that he did not know of the rendition of the judgment until more than two days had expired after its rendition, although he did acquire such information during the term of court at which it was rendered. In disposing of that case our Supreme Court held, in effect, that as the same grounds relied on to set aside the judgment could have been urged in a motion for new trial, the suit for injunction to restrain the collection of the judgment could not be maintained. 'That decision was approved in Owens v. Cage & Crow, 101 Tex. 286, 106 S. W. 880, in which it was remarked that it was well supported by authority, and “23 Oyc. 981 et seq.” was cited, although it was further held that the decision was not applicable in the case then under discussion, as the party there complaining was in fact never a party to the former suit, and the court saying:

“Only parties to a suit are required or ordinarily permitted to move for a new trial, and this condition could be imposed upon her only upon the theory that she was properly in the case.”

The officer's return upon the citation in the present suit recited that John O. Kim-mell, Jr., was served with “a true copy of this citation (together with the accompanying certified copy of the. plaintiff’s petition).” The judgment entered in that case contains, among others, the recital that it appeared “to the satisfaction of the court that the defendant had been duly and legally served with- process personally executed upon him for more than ten days before the first day of this term of court,” and that he had failed to appear and contest plaintiff’s demand, but had. wholly made default. It thus appears that the judgment sought to be enjoined and the process upon which it was rendered were in all respects regular and valid, and the rules of equity announced in the decisions cited above with respect to the rights of a defendant to set aside such a judgment apply with full force here.

It is elementary that a person' is chargeable with knowledge of a fact whenever he has notice of other facts which are sufficient to put a reasonably prudent person upon inquiry that, if pursued with reasonable diligence, would lead to a-discovery of such fact. See 29 Cyc. 1114, and the many decisions cited in 13 Encyc. Digest of Texas Reports, p. 543. It is a general rule also, which we think applicable here, that knowledge or notice of an existing state of facts is a question of fact to be determined by the jury. Galveston v. Hemmis, 72 Tex. 558, 11 S. W. 29, 13 Am. St. Rep. 828; Klein v. Dallas, 71 Tex. 280, 8 S. W. 90; Hines v. Perry, 25 Tex. 443.

If Kimmell was' served with a certified copy of the plaintiff’s petition, as stated in the officer’s return on the citation, he has no cause of action in the present suit to set aside the judgment, even though he- had- a meritorious defense to that suit. If he was not served with a certified copy of the petition, yet if a person of ordinary prudence similarly situated, after being served with the same copy of the citation, would have discovered the fact of the rendition of the judgment in time to file a motion for new trial .before, the adjournment of .the .term of court' at- which it was rendered, then K1m-mell would be precluded in this suit from setting aside the judgment to the same extent as if he had been served with a certified copy of plaintiff’s petition in addition to a copy of the citation.

Whether or not Kimmell was served with a certified copy of the petition in that suit, and Whether or not the service of citation upon him, without the service of a certified copy of the petition also, as testified to by him, was, under all the facts and circumstances in evidence, sufficient to put a reasonably prudent person, similarly situated, upon notice that a judgment would likely be rendered against him by default in the absence of his appearance, were issues of fact which should have been submitted to the jury under appropriate instructions from the court, and the peremptory instruction of the court to return a verdict in favor of defendants was therefore erroneous, for which error the judgment must he reversed.

The officer who served the citation signed the return as “Constable, Midlothian, Ellis County, Texas.” There is no statute for the election of constables for towns, but for precincts of counties only. The contention is made that C. M. Meadors, the constable who served the writ, was not a constable of the precinct in Ellis county where the town of Midlothian was situated. On the contrary, plaintiff himself testified:

“The citation was delivered to me by C. M. Meadors. He was supposed to be constable. I do not know that he was constable down'there. I was not there when he was elected. I lived there at Midlothian at the time he served me, and know that he was recognized as constable of that precinct.”

Under such circumstances there is no merit in appellant’s contention that the return on the citation did not show service by a legally authorized officer to make such service. Calvert, W. & B. V. Ry. Co. v. Driskill, 31 Tex. Civ. App. 200, 71 S. W. 997.

For the reasons above noted, appellant’s motion for rehearing is granted, our former decision affirming the judgment of the trial court is set aside, and the opinion then filed is withdrawn; the judgment of the trial court is reversed, and the cause remanded for further proceedings in conformity with this opinion.
      <&wkey;For other cases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: GRAVES, J.

license: Public Domain

text:
    TEXAS CITY TRANSP. CO. v. WINTERS.
    (No. 7321.)
    (Court of Civil Appeals of Texas. Galveston.
    Feb. 27, 1917.
    Rehearing Denied March 22, 1917.)
    1. Appeal and Error <&wkey;218(2) — Exceptions —Sending Jury Back fob Coeeection of Findings.
    Sending jury back to correct a special verdict without informing counsel, who is present in open court, of the contents will not be available as error, in the absence of objection or exception thereto at the time.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1320, 1321, 1323; Trial, Cent. Dig. § 875.]
    2. Release <&wkey;17 (2) — Injuries to Servant-Release — Duty to Investigate.
    Where a servant because of reliance on false representations signs a release for damages for personal injuries the release is invalid, though he did not read it 'before signing.
    [Ed. Note. — For ■ other cases, see Release, Cent. Dig. § 32.]
    3. Master and Servant &wkey;j281(3) — Injuries to Servant — Contributory Negligence.
    In an action by a servant for injuries sustained while working in a ditch, evidence examined, and held not to show that he was charged with duty of curbing walls of ditch or securing material for that purpose, so as to relieve the employer from discharge of that duty.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 987.]
    A Trial @=^350(1) — Province of Jury — Issues.
    Special issues, not supported by evidence, should not be submitted to jury.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 828.]
    5. Trial <&wkey;260(l) — Instructions—Refusal to Give Instruction Covered by Charge. Refusal to give an instruction covered by a given instruction is without prejudice.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 651.]
    6.Trial &wkey;>350(2) — Submission of Issues— Evidentiary Issues.
    It is the duty of the court to submit ultimate issues, and not issues incidental and evi-dentiary thereto.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 828, 832.]
    7.Appeal and Error <&wkey;>1051(l) — Admission of Hearsay Testimony — Harmless.
    In an action for injuries sustained by a servant while working in a ditch, refusal to strike out hearsay testimony as to condition of wall of ditch, there being direct evidence of the same, held without prejudice.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4161, 4162, 4165, 4166.]
    8.Witnesses &wkey;3392(lj) — Impeachment—Inconsistent Statements.
    File marks, excerpts, etc., of plaintiff's former pleadings, containing no admission or declaration against his interest or contradicting anything to which he has testified, are not competent for purposes of impeachment.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1249-1251.]
    9. Evidence &wkey;>471(ll) — Conclusions of Witness.
    A witness’ testimony that he would not have signed a paper had he known it was a release for his injuries is not a conclusion, but a statement of fact.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2161.]
    Appeal from District Court, Galveston County; E. F. Harris, Special Judge.
    Action by C. E. Winters against the Texas City Transportation Company. Judgment for plaintiff, and. defendant appeals.
    Affirmed.

      W. T. Armstrong and Eugene A. Wilson, both, of Galveston, for appellant. Frank S. Anderson and Aubrey Fuller, both of Galveston, for appellee.
   GRAVES, J.

Appellee filed this suit in the district court of Galveston county for the Tenth judicial district against appellant, seeking recovery of damages by reason of certain personal injuries, alleged to have been received by him by the negligence of the appellant, by reason of the caving in of a ditch or excavation in which the appellee was engaged in work as an employé of the appellant, the injury occurring on January 8, 1915. By his third amended original petition, on which trial was had, plaintiff alleged that, on or about the 8th day of January, 1915, the plaintiff was in the employment of the defendant at Texas City, Tex., as a carpenter, and in the course of his said employment, the defendant, by and through its agents, servants, and employés, by whom the plaintiff was being directed as to his said work and employment, ordered and directed plaintiff to enter and work in an excavation in the earth made by the defendant, which excavation was about 40 feet long, 12 feet wide, and 9 feet deep; the work plaintiff was directed to perform consisting of making and placing forms in the said excavation, constructed of plank for footing therein. Appellee alleged as ground of appellant’s negligence, as follows:

“That the defendant, its agents, servants, and employés, in charge of and directing the said work, in violation of its said duties and obligations, carelessly and negligently failed and neglected to exercise ordinary care to furnish the plaintiff with a reasonably safe place to .work, or to make any inspection of the said excavation whatsoever, or of the walls thereof, and carelessly and negligently failed and neglected to inspect and observe the weakened and dangerous condition of the walls of said excavation, which might have been observed by the exercise of ordinary care, and which was known to the defendant and its said agents, servants, and em-ployés in charge of and directing the work of said excavation, or to properly and safely curb the same so as to prevent the said walls from caving in and injuring the plaintiff and the other employés of the defendant, and also carelessly and negligently failed and neglected to furnish any material or labor with which to curb the said excavation, and carelessly and negligently failed and neglected to inform the plaintiff of the weakened and dangerous condition of the walls of the said excavation, and which was well known to the defendant and its said agents, servants, and employés in charge of and directing the said excavation.”

Then follows the allegation that while performing his duties the ditch caved in, and great quantities of earth fell upon him, injuring him in the manner set out. It was further alleged that appellant was, at all times mentioned in said suit, within the purview of the Texas Employers’ Liability Act (chapter 179, Acts 33d Legislature of Texas). Appellant answered by general demurrer, general denial, and pleaded specially that the work was being prosecuted by it lawfully, carefully, and properly, and thht caving was not due to any want of care, but was an accident. It further specially pleaded that the plaintiff was a carpenter foreman for defendant, and was in charge of and responsible for the carpenter work in progress in the excavation, including the duties and work of properly curbing and bracing the excavation; that if injuries alleged by plaintiff were due to any negligence, it was that of the plaintiff himself; that the plaintiff undertook these duties with full knowledge of existing conditions, and assumed the hazard and risks incident to the work of which the caving of the wall was part. Appellant further specially pleaded generally the contributory negligence of the appellee, and also pleaded in bar a release executed by appellee to the appellant of all claims, demands, and causes of action against it growing out of the alleged injuries. Appel-lee, by supplemental petition, denied the allegations of the answer, and specially pleaded as follows:

“(b) The plaintiff denies that he has any knowledge or information sufficient to form a belief as to whether he executed and delivered to the defendant a release evidenced by a written statement dated January 22, 1915, as alleged and set forth in the said paragraph of the defendant’s said answer, and therefore demands strict proof thereof, and in that connection he says that, on or about the 22d day of January, 1915, the defendant was indebted to him for work, labor, and services, and that he was directed to go to the office of the defendant in Texas City, and get a check for his said services; that he did go to the office of the defendant aforesaid, and that the defendant, its agents, servants, and employés, presented to him a paper which he was informed by the defendant and its said agents, servants, and em-ployés, was a pay check or voucher, and asked him to sign- it; that, relying upon said statement, the plaintiff did not read said paper, and, without any other knowledge or information as to its alleged contents, signed his name thereto, and received pay for the said services, and no more; that if it should now appear that the paper signed by the plaintiff, as aforesaid, was a release of the damages sustained by the plaintiff as alleged and set forth in the defendant’s said answer, it was obtained by the defendant and its said agents, servants, and employés through' deception,-fraud, and by means of false and fraudulent representations upon the part of the defendant and its said agents, servants, and em-ployés, viz., that the paper which the plaintiff was asked to sign, as aforesaid, was falsely and fraudulently, stated and represented to him to be a paycheck or voucher, which statement the defendant and its said agents, servants, and em-ployés well knew to be untrue, and which the plaintiff believed and relied upon, and for that reason did not read said paper and alleged release, and had no knowledge or information that he was signing a release, as alleged, if in fact any such release was ever signed and executed by him, which the plaintiff does not admit, and he alleges that the said alleged release is, and was, void for want of any consideration whatsoever.
“(c) That at the time of signing said paper, ■under the circumstances aforesaid, the plaintiff had sustained; and was severely suffering from the injuries he had received as alleged in his petition herein, all of which was well known to the defendant, its agents, servants, and em-ployés, and .that the defendant never ¡paid the plaintiff any consideration whatsoever for . the execution of any alleged release, or for a release of the damages he sustained by reason of said injuries, and never informed the plaintiff that any such release was desired, and that any paper the plaintiff signed at the request of the defendant, its agents, servants, and employes, as aforesaid, or any other paper, was a release of such damages; that if any such release was obtained by the defendant from the plaintiff, which the plaintiff does not admit, it was, and is, wholly void for want of any consideration whatsoever.”

The case was tried before a jury, to whom it was submitted upon special issues, and upon filing of verdict, judgment was entered in favor of appellee in the sum of $5,000. Erom that judgment this appeal is prosecuted.

So much only of the pleadings and proceedings in the trial court has been and will be herein stated as is deemed essential to the determination of the questions presented.

No complaint is made in this court as to the extent of the injuries, nor that the verdict is excessive; but the assignments are all addressed to the court’s action in giving or refusing charges, or in admitting or excluding evidence, relating to other matters.

Before discussing in detail the different questions thus raised, we insert special issues 1 to 9, inclusive, as submitted by the court, together with the jury’s answers, as follows:

“(1) Did the defendant exercise reasonable care to furnish plaintiff a safe olace to work? Reasonable care means the care an ordinarily prudent and cautious person would use under the same or similar circumstances. Answer Yes or No.” To which the jury answered, No.
“(2) Was plaintiff guilty of negligence proximately contributing to his own injuries? Negligence means the failure to exercise that degree of care which would be exercised by a person of ordinary prudence under the same or similar circumstances. Answer Yes or No.” To which the jury answered, No.
“(3) Was the injury to plaintiff due to risks ordinarily incident to his employment? Answer Yes or No.” To which the jury answered, No.
“(4) Was plaintiff told by Field that the release was- a pay check or voucher? Answer Yes or No.” To which the jury answered, Yes.
“(5) Did plaintiff sign said release relying on a statement of Field, if any statement there was, that the release was a pay check or voucher? Answer Yes or No.” ■ To which the jury answered, Yes.
“(6) Did Stevens read said release to plaintiff before the plaintiff executed the release? Answer Yes or No.” To which the jury answered, No. .
“(7j Did plaintiff know he was signing a release of his claim for personal injuries when he signed-the release? Answer Yes or No.” To which the jury answered, No.
■ “(8) If you have found from the evidence that plaintiff signed said release relying on a statement of Field that it was a pay check or voucher, then do you believe from the evidence that plaintiff was guilty of negligence in thus relying upon such 'statement of Field? Answer Yes or No.” To which the jury answered, No.
“(9) if you answer question No. 1 with the word, ‘No,’ then were the injuries to the plaintiff caused by the failure of the defendant to so exercise reasonable care to furnish plaintiff -a safe place to work? -Answer Yes or No.” To which, the jury answered, Yes. . ■

Assignments 1 to 5, inclusive, in varying forms, contend that the court erred in instructing the jury that the answer in response to special issue No. 18 was not determinative, and in directing them to retire and write something in addition thereto; while assignments 6 and 11 to 14, inclusive, in similar manner complain of the-court’s entering judgment for appellee upon the jury’s final findings relating to the alleged release. Since this grouping of the named assignments shows the questions thereby raised to be very closely related, if not in fact interdependent, they will be treated together.

Said special issue No. 18, together with appellant’s bill of exceptions and the court’s qualification of the bill upon which its said contention in this court is based, reads as follows:

“If you have answered ‘No’ to issue No. 7, then you will find whether or not he could have known he was signing such release by the exercise of such care as a person of ordinary prudence would have exercised for his own protection in the same or similar circumstances.”
“Defendant further shows to the court that on Saturday afternoon, January 8, 1916, after the jury had retired to consider the cause upon the special issues submitted to it, the said jury returned into court a special verdict in which it found ‘No’ in response to the aforesaid special issue No. 7, and found ‘No’ in response to special issue No. 8, and found ‘Yes’ in response to special issue No. 18. That upon returning said special verdict into court the foreman of said jury handed the said special verdict, containing, among others, the findings hereinbefore set forth, unto the clerk of the court, who handed the same immediately unto the judge of the court, who thereupon examined the same, and, without reading the said special verdict aloud, or causing the same to be read aloud, and without advising or informing counsel in the case and especially counsel for defendant, who was present in open court at said time, of the contents of said special verdict, simply handed the said special verdict back to the jury and orally stated to the said jury that its answer to said special issue No. 18 was not determinative, and they would have to retire and write something additional in response thereto, whereupon the said jury retired and after further deliberation returned into court its same said verdict, having written after its findings of ‘Yes’ upon special issue No. 18 aforesaid the following additional words: Tie could have known if he had personally read the release or had some one read it for him.’ Whereupon the judge of the court received the same in open court and caused it to be read in open court by the clerk, and to be filed as the verdict of the jury in this cause.”

The court’s qualification of the bill is as follows:

“Examined and approved this 20th day of April, 1916, with the explanation and qualification that counsel for defendant was present in the courtroom at the time of each of the transactions complained of and remained silent, making no verbal or written objections at the time of said transactions, nor until after the rendition of the verdict against defendant.”

Appellant very vigorously assails this action of the court in sending the jury back to “write something additional in response to said special issue No, 18,” contending that it was an invasion of the province of the jury and beyond the power of the' court; while, upon the other hand, appellee as earnestly contends that such action was not only within the power of, but was the bounden duty of, the court under articles 1980, 1981, Vernon’s Sayles’ Civil Statutes of 1914. We find it unnecessary to determine that question, for two reasons:

First. The quoted bill of exceptions shows that appellant’s counsel, though present in the courtroom at the time of each of the transactions complained of, remained silent, and made no verbal nor written objection at that time, nor until after the rendition of the verdict against it. We think appellant should have made any objection it had to the action of the court at the very time, since it is shown that it had ample opportunity to do so, and that i£ may not be permitted, by its silence then, to acquiesce in this transaction, thus in a measure speculating upon the probable verdict of the jury, and then afterwards take advantage of it for the first time in a motion for a new trial. Vanwey v. State, 41 Tex. 639; Bourland et al. v. Schulz, 39 Tex. Civ. App. 572, 87 S. W. 1167, 1168; Zarate v. Villareal, 155 S. W. 328.

But there is, we think, a far stronger reason for holding that this action of the court was not prejudicial to appellant. In this connection it may be stated that, while there was a sharp conflict in the testimony, the evidence sustained the finding of the jury upon said special issues 4 to 7, inclusive, relating to and embodying the issue of fraud in the execution and delivery of the alleged release. Recurrence to the quoted part of his petition will show that the appellee alleged positive fraud in the execution of the release; and, that issue having been submitted to and, as just stated, found by the jury in their answers to special issues 4 to 7, inclusive, in favor of the appellee, we think the question of appellee’s negligence in not protecting himself by reading, or having read to him, the release, becomes immaterial; in other words, the finding of the jury, upon sufficient evidence, that the active and positive fraud alleged was practiced upon him, and that he relied upon the representations of appellant’s agents in making it, as we hold he had a right to do under the circumstances shown here, the question of his negligence in signing the release without reading it, or having it read to him, passed out of the case. This is so, because the legal effect of the first finding eliminated the issue embodied in the second; nor do we think the fact that both parties requested the submission of this immaterial issue afreets in the least this result. Hill v. Hoeldtke, 104 Tex. 594, 142 S. W. 871-872, 40 L. R. A. (N. S.) 672; I. & G. N. Ry. Co. v. Berthea, 179 S. W. 1087; Lofland v. Greenwood, 181 S. W. 517, 519; Thornton et al. v. Goodman, 185 S. W. 926, 929.

In support of its contention that it devolved upon appellee to show himself free of negligence in executing the release, appellant cites M., K. & T. Ry. Co. v. Craig, 44 Tex. Civ. App. 583, 98 S. W. 907, and Williams v. Rand, 9 Tex. Civ. App. 634, 635, 30 S. W. 509, but when applied to the facts here, those cases in no manner sustain the position; as is said in Railway v. Craig Case, 44 Tex. Civ. App. at page 585, 98 S. W. at page 908:

“The evidence fails to show that said agents fraudulently concealed the contents or prevented plaintiff from reading the same, by making any false statement or doing any act that induced plaintiff to sign said instrument without knowing the contents thereof.”

It is unnecessary to repeat that the positive fraud found by the jury here makes a very different case. The case at bar is determined by the principle so clearly stated by our Supreme Court through Justice Stayton in Labbe v. Corbett, 69 Tex. 503, 6 S. W. 809, as follows:

“The misrepresentation alleged to have been made was one material in character, and, if made, calculated to prevent an examination by the appellant for himself, to ascertain the true condition of the sheep, and it related to a matter of which the appellee, from his own statement, had actual knowledge”

—and quoting from the English case of Railway Company v. Kirsch, L. R. 2, H. L. 120, Justice Stayton continues:

“When once it is established that there has been any fraudulent misrepresentation, * * *• by which a person has been induced to enter into a contract, it is no answer to his claim to be relieved from it to tell him that he might have known the truth by further inquiry. He has a right to retort upon his objector: ‘You, at least, who have stated that which is untrue * * * for the purpose of driving me into a contract, cannot accuse me of want of caution, because I relied implicitly upon your fairness and honesty.’ ”

In another case, in discussing the same principle, our Supreme Court has said:

“The defendant in error claims that Mrs. Conn was guilty of negligence in signing the deed of trust without reading it, and that therefore the court ought not to reform the instrument according.to her testimony. If the failure to read the instrument was unexplained and there was reasonable excuse for it, this proposition would be correct, but, when the party is misled by the fraudulent representation of the other party and caused, by confidence in such person and his representations, to sign the instrument without reading it, this does not constitute such negligence as will deprive the maker of the instrument of equitable relief from the consequences of the fraudulent representations. Chatham v. Jones, 69 Tex. 744, 7 S. W. 600.” Conn v. Hagan, 93 Tex. 339, 55 S. W. 323.

To the same effect are the following cases: Western Union Tel. Co. v. Walck, 161 S. W. 902-907; White v. Peters, 185 S. W. 659-661, and cases cited; Fahey v. Kaies, 181 S. W. 782, 784, 785; Barton v. Cox, 176 S. W. 793; Hammel v. Benton, 162 S. W. 35; Taber v. Eyler, 162 S. W. 490; Benton v. Kuykendall, 160 S. W. 438; Brand v. Odom, 156 S. W. 547; Willingham v. Geitzenauer, 161 S. W. 376-378.

For the reasons given, and upon authority of the cases discussed, we overrule both said sets of grouped assignments so considered together.

By its seventh and eighth assignments appellant complains of the court’s action in refusing to submit its requested special issues Nos. 14 and 16, the former requiring the jury to find whether or not the duty of seeing j . to the proper bracing of the walls of the ditch at the place of his injury was upon plaintiff; the latter requiring a finding as to whether or not it was defendant’s duty to place at said ditch material to curb the walls, and, if it was, whether or not defendant failed in such duty, and if it did so fail, then, further, whether or not plaintiff himself, by the exercise of ordinary care, could have secured said material. j

Both assignments are overruled, because we think it was the duty of appellant to furnish appellee with a reasonably safe place to work, which included the duty of curbing the walls of the excavation and furnishing the necessary material for that purpose, and there was no evidence of any probative force showing that appellee was charged with the duty of curbing the walls of the ditch in question, or securing material for that purpose. Indeed, it seems to us that by the mouths of its own witnesses appellant’s contention under these two assignments is repudiated; the appellee Winters was employed as a carpenter, and the work being done by the carpenters was the placing of wooden footing in the excavation, preparatory to pouring the concrete; while O. A. Stevens, appellant’s chief engineer, had general supervision over the entire excavation work, and appellee was working under his direction and that of O. B. Griffin said O. B. Griffin, a witness for appellant, testified:

“I know where the ditch is in which it is alleged that Mr. Winters received the injuries on January 8, 1915, while he was working therein, which ditch had been excavated by the Texas City Transportation Company, and in which the culvert was to be constructed. I don’t remember the date when the carpenters went to work in this excavation; the excavation had been completed at the time they went to work in the ditch, and was completed where Mr. Winters was working at the time of the accident. I was working as labor foreman of the excavating gang, common laborers. The work in progress in that ditch at the time the accident happened was the building of forms for , concrete; Mr. Winters had the supervision of those. He had some carpenters there doing the work. Mr. Stevens had general supervision over this work that was being done there; he was my superior and gave me orders what to do, prior to January 8th. I had been instructed to have this excavation made where this accident occurred; he gave me the dimensions of it and about the depth of it. Winters did not stand on the top of the bank and direct the work, he stood in the ditch; he was in the ditch that day. They had just started "that end of the concrete from where Mr. Winters was working at the time the accident occurred. I was getting the material on the ground for that work under the direction and request of Mr. Stevens, who was the chief engineer.”

E. Y. Rhodes, a witness for the appellant, testified:

“I was superintendent of Texas City Transportation Company in the month of January, j 1915. Mr. C. A. Stevens had direct charge of the work that was being done in connection with the excavation. I did not -take charge of that or assume any direction of it. Mr. Stevens was in direct charge.. I did not employ Mr. j Winters. He was employed by Mr. Stevens. When I say that Mr. Winters was foreman in charge of the carpenter work in this excavation, I mean he was directing the carpenters who were working there with those carpenters down in the excavation.”

Having thus failed to substantiate the allegations of its answer, that these duties rested upon appellee, appellant was not entitled to have them submitted as issues properly raised by both pleading and proof. Article 1984a, Revised Statutes; article 1985, Revised Statutes; Black v. Wilson, 187 S. W. 493-496; Walker v. Flanary, 178 S. W. 9, 92-993; Gulf States Tel. Co. v. Evetts, 188 S. W. 289; Rowan v. Hodges, 175 S. W. 847.

We are unable to determine from the ninth assignment whether the contention under it is that appellant’s requested special issue No. 13 required the submission of the question of the contributory negligence of a fellow-servant of appellee, or of the proximate cause of his injuries; but, in either event, we think it presents no error and is overruled for the reasons that the pleadings and proof brought this case within the purview of the Texas Employers’ Liability Act (chapter 179, Acts 33d Leg.), which abolished the fellow-servant defense, and because the court in its above-quoted special issue No. 9 properly submitted to the jury the question of the proximate cause of the injuries alleged.

By the tenth assignment exception is taken to special issue No. 1 of the court’s general charge, as follows:

‘‘Special issue No. 1 is excepted to because the subject therein condenses the whole matter of negligence into one issue, whereas a number of issues of negligence are tendered by the pleadings, not all of which are supported by proof, so that the issues should be presented so as to submit only those issues which are proper to go to the jury.”

We think this assignment is without merit, because there was only one ground of negligence charged in the petition, and supported by the evidence, to wit: whether the appellant exercised reasonable care to furnish ap-pellee with a safe place to work, in failing to curb or stay the walls to prevent caving. All other grounds of negligence were incidental to and involved in that issue, and it was the duty of the court to submit the ultimate issue, and not issues incidental and evidentiary thereto. The part of the petition charging the negligence has been hereinbefore copied, and we think it clearly supports this conclusion that only one ground of negligence was charged. Frigid Fluid Co. v. Sid Westheimer Co., 189 S. W. 334-336; Gulf States Tel. Co. v. Evetts, 188 S. W. 289-292.

Very earnest and forceful contention is made under appellant’s eighteenth assignment that prejudicial error against it was committed by the court in refusing its motion to strike out as hearsay the testimony of the appellee, to the effect that Mr. Stevens and Mr. Griffin had made an inspection of the walls of the excavation about 10 o’clock on the morning of the day of the accident and had seen and were talking about the crack on the bank. The hearsay character of this testimony was not brought out until cross-examination; and, after, the witness upon re-examination had further said that on first ■ so testifying he had misunderstood the question, and that he had never seen Mr. Stevens or Mr. Griffin making an inspection of the walls, and that his statement to that effect was the result of what he had heard after-wards, the court overruled the motion. We think this evidence was pure hearsay, and that it should have been excluded, but we further think the error in not excluding it under the circumstances shown was entirely harmless, and was not prejudicial to any real right of appellant This conclusion is specially fortified by the fact that the witness R. B. Jetton testified to having seen Mr. Stevens at the excavation just before the accident and having heard him direct some Mexicans to knock out some braces, and having called Steven’s attention to a crack in the bank. The testimony of Jetton was direct, and not hearsay, and the appellant could have been in no way prejudiced by the testimony complained of. It was not in support of his allegation that the walls of the ditch were in a weak and dangerous condition, which was known to appellant, and the jury was not misled or misinformed. The assignment is therefore overruled.

Nor do we think, as is contended under assignments 15 to 17, inclusive, that the court erred in excluding the tendered evidence consisting of the file marks, excerpts, etc., of plaintiff’s former pleadings. We think this proffered evidence was incompetent and immaterial, because it contained no admission or declaration by appellee against his interest, and neither tended to contradict anything he had testified to, nor any statement made by him in the pleadings. Hence there was no error in its exclusion, and the three assignments are overruled.

The nineteenth assignment alleges error in permitting the plaintiff to testify, over the objection of the defendant, that if he had had any knowledge that the paper he was signing was a general release of his injuries, he would not have signed it. It was entirely competent, we think, for the plaintiff to testify that if he had known that the paper he was signing was a general release of his injuries, he would not have signed it; he did not testify as to what he thought he would have done on some previous occasion, but stated as a fact what he would not- have done; that is, have signed the release, if he had known that it was in fact a release and not what he then supposed it to be, to wit, merely a voucher for the amount of actual wages then due him.

We have thus very carefully considered every question presented by appellant under all of its assignments, and, having reached the conclusion that no reversible error has been pointed out by it, each and every assignment is overruled.

The judgment of the trial court is affirmed.

Affirmed.
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author: LEW, J.

text:
    CLARK & BOICE LUMBER CO. v. BARKER.
    (No. 1707.)
    (Court of Civil Appeals of Texas. Texarkana.
    March 8, 1917.)
    1. Principal and Agent <&wkey;63(l) — Duty or ■Agent — Liability eor Breach.
    Plaintiff having after appointing defendant its agent to sell lands, on commission, with reservation of right in plaintiff to reject any sale, instructed defendant to report in each proposed sale whether there was timber on the land included therein, he, having undertaken to do this, was under a duty making him liable for all loss occasioned by his violation thereof.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 105, 110-112.]
    2. Principal and Agent <&wkey;71 — Agent’s Duty to Principal — Fraud—Statements Recklessly Made.
    Positive and definite false statements, made by an agent in reporting to his. principal a proposed sale of land, that there was no timber on the land, being made without going through the tract and without actual knowledge of what was the fact, will support an action for deceit.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. § 147.]
    3. Limitation op Actions- &wkey;>100(8) — Accrual op Cause op Action — Agent’s Fraud.
    Limitations against action by principal against agent under a continuing agency for sale of land, for definite and positive false statement, recklessly made without knowledge in report of proposed sale, that there was no timber on the tract in question, begins to run only from acquisition of knowledge by principal of the misrepresentation, when the agency was terminated; the agent having been under duty to report on the fact.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. -Dig. § 487.]
    Appeal from District Court, Cass County; H. F. O’Neal, Judge.
    Action by the Clark & Boice Lumber Company against J. W. Barker. Judgment for defendant, and plaintiff appeals.
    Reversed and remanded.
    The action is by appellant against appellee for consequential damages for alleged deceit in making a misrepresentation of fact.while effecting a contract of sale of land for appellant as its agent. The defendant demurred to the petition, and pleaded, besides denial, the bar of two-year statute of limitation and estoppel to claim damages. The case was tried before the court without a jury, and judgment was entered in favor of the defendant.
    The appellant company is a private corporation, witli its principal office at Dallas, Tex., and lias a sawmill located at Jefferson, Tex. The appellant is tire owner of a large quantity of lands in Oass county. Tire timber had been cut off of a large part of the land by appellant, and some of the tracts of land had growing timber on them. It was the purpose of appellant to make sale only of the lands from which the growing timber had been removed by it. E. I. Clark is the vice president of appellant company, with office at Dallas, and has authority to execute conveyances to land for the company. On September 8, 1911, the appellant company, through P. I. Clark, entered into a written agreement with appellee, reading as follows:
    “Whereas Clark and Boice Lumber Company is the owner of a large amount of land in Cass county, Texas, and desiring to dispose of the same to the best advantage hereby appoints J. W. Barker its agent to sell said lands upon the terms and conditions as follows: 1. Said J. W. Barker is to use his best efforts to sell the land as fast as possible and at the best terms possible, and the Clark & Boice Lumber Company will execute deeds to whatever parties said Barker may designate promptly when advised of the field notes and terms of sale. The Clark & Boice Lumber Company, however, reserve the right to reject any sale which they may see fit.”
    Section 2 of the writing specifies the compensation of the appellee for services to be 10 per cent, of the purchase price of each tract of land of which sale is made, and section 3 provides that the contract shall continue in force until terminated by either party, which may be done by giving 30 days’ notice in writing. It was explained to appellee, and he understood, that the company did not want to sell any timbered land without reserving the timber in the sale. It appears that for the purpose of logging the mill the company had a plat of its lands, made in 1910, showing the timbered land and the “cut over” land at the time. It appears that as the timber was cut off the land the plat was not changed and kept up to date. “This plat,” as Mr. Clark testified, “was wholly unreliable.” After the contract between appel-lee and appellant was executed, F. I. Clark directed the appellee to make report in each proposed sale of the land as to whether there was timber on the particular tract, and ap-pellee consented to do so. “Our idea,” Mr. Clark testified, “in requiring that report was to see whether we wanted to make the sale or not. Supposing that he (appellee) reported there was timber on the land, we might want to sell the land and reserve the timber, or might not want to sell it at all; it was up to me to decide whether I wanted to sell it or not, based on his (appellee’s) report. We did not want to sell any land with timber on it; we' never sold the timber with the land.” Appellee under the contract made sales of land and reported in the various sales whether or not there was timber on the land, in order to enable the company, acting through F. I. Clark, to determine whether it would accept or reject the proposed sale of land. On August 19, 1912, appellee contracted a sale of 55 acres of land to C. H. Doss, made a survey of it on the ground, and made and mailed the following report:
    “Clark & Boice Lumber Company, Dallas, Texas. — Gentlemen: Find inclosed herewith field notes for 55 acres of the Bland survey for Mr. C. H. Doss. $10.00 per acre — one-fifth cash. No timber or ore in this tract. Very truly yours, J. W. Barker.”
    On this report the appellant company executed a deed to the land to C. H. Doss. As a fact it appears there was 300,000 or more feet of merchantable timber on the tract at the time of the report and the sale of the land, and which Mr. Doss afterwards cut off and sold for $1.75 per thousand feet at the stump. The appellee testified, in part, as follows:
    “At the time I sold this tract of land to Doss there had never been any contract between me and the Clark & Boice Lumber Company about me reporting the land that had timber on it or iron ore; they had requested me to do that simply as a request; just asked me to do that. Yes; I surveyed this 55 acres of land. I cut the 55 acres out of a larger tract of 102 acres of land. I think Mr. Doss and my brother assisted me in making the survey. Mr. Doss says his two sons also assisted; I don’t remember. Flat creek runs right through this land, and it is practically all in the bottom, and at that time none of the oak or anything had ever been taken away. It was a very dense forest, and when I went around it I saw no timber except an occasional old pine that I supposed was an old doty tree that had been left when they cut it over. They were some old scattering trees. I sent Clark & Boice Lumber Company the field notes that I had surveyed, and they sent me the deed, and Mr. Doss executed the notes. I didn’t in any way try to conceal the fact that there was any timber on the land; I didn’t know there was any question about any timber until the beginning of the summer or fall of 1915, when I got word from Mr. Clark. I didn’t get any benefit out of it whatever. * * * On this particular tract I didn’t notice any timber, and I reported it as I saw it, like I did all the balance of them. * * * I never intentionally concealed any timber on any land from the Clark & Boice Lumber Company. * * * I wrote Mr. Clark the letter; I wrote him there was no pine timber or ore on there. Mr. Clark had known me a long time, and I knew Mr. Clark depended on what I told him; and as I stood by my propositions usually, I thought that he would take my word for it. * * * I am sure if I had noticed any pine and I considered worth mentioning that I would have mentioned it. I would not have done anything that would injure the Clark & Boice Lumber Company knowingly. * * * I did not go over or through the 55 acres of land — only run the lines around it in surveying. The road is on the south line.”
    F. I. Clark testified, in part, as follows:
    “The proposition for the sale of this Bland tract of land was submitted to the company at Dallas; and I, as an officer of the company, acted upon it. It was submitted in a letter accompanied by the field notes. (The letter of J. W. Barker is here read.) The letter had influence on me in determining whether to make the sale or not. The sale was made, based on the report. I did not know whether there was any timber on the land or not, only what this letter stated. I relied upon what he (Barker) said as being true. I would not have made the sale if I had known there was timber in merchantable quantities on the tract. Mr. Barker continued to act in the capacity of agent of the Clark & Boice Lumber Company until some time last year (meaning 1915).”
    Glass, Estes, King & Burford, of Texar-kana, for appellant. Bartlett & Lincoln, of Linden, for appellee.
   LEW, J.

(after stating tke facts as above). Tke relation between tke appellee and tke appellant company was tkat of principal and agent in effecting tke gale of tke land. And it is conclusively skown by tke evidence tkat tke appellee was directed by kis principal, acting tkrougk Mr. Clark, to make report in tke sale of eack tract of land concerning wketker or not tkere was in fact timber on tke said tract. Tke evident object and purpose, it appears, in having appellee to make observation on tke ground and report as to wketker or not tke particular tract proposed to be sold kad in fact timber on it was to inform Mr. Clark, wko, acting for tke company in tke sales of land, was not certainly informed as to tke real state of facts of wketker tke particular tract kad or did not kave timber on it. And it is conclusively established as a fact tkat tke appellee undertook to perform this duty and give tkis information in tke course of kis agency. Having undertaken, as appellee did, to perform tke instructions of his principal to make report as to wketker or not there was timber in fact on tke land proposed to be sold, the appellee would be responsible for all loss occasioned by any violation of kis duty. And it is undisputed in the evidence tkat tke ap-pellee represented, while effecting a contract of sale of tke 55 acres to Doss, tkat tkere was no timber in fact on tke land, when in fact tkere was 300,000 or more feet of timber on tke said tract. Tke representation was made in a positive and definite manner. And from tke appellee’s evidence it appears tkat he made the representation while on the ground, surveying tke lines of tke tract of land. It appears, though, from appellee’s evidence tkat he did not go tkrougk tke land to see if tkere were timber on it, and tkat kis positive and definite statement of fact was without actual knowledge of tke fact as it was on tke ground. An action for deceit may be predicated upon false statements recklessly made by one wko does not know tkat they are true in fact Mitchell v. Zimmerman, 4 Tex. 75, 51 Am. Dec. 717; Henderson v. Railway Co., 17 Tex. 560, 67 Am. Dec. 675; 20 Oyc. p. 27; 12 R. C. L. p. 337, § 94; 2 Pomeroy, Eg. Jur. §§ 88Y, 888.

It appears conclusively in the case tkat tke appellant kad no actual knowledge of the alleged misrepresentation until June, 1915; and it may not properly be said, we conclude, tkat appellant, in tke circumstances of tke present record, kad constructive knowledge or was not diligent in sooner discovering tkat tke particular tract kad timber on it. Tke agency here was a continuing one until June, 1915; and the very purpose of having appellee make the report of whether tke particular tracts to be sold kad in fact any timber on them was to inform tke appellant’s authorized agent, Clark, wko kad no certain information in respect thereto and was desiring tkrougk appellee to prosecute suck inquiry of fact. Tkis was ordinary diligence on tke part of appellant to ascertain tke real state of facts concerning tke timber. And tke ap-pellee’s report of tke fact was made in a manner so definite and positive as naturally to induce tke appellant not to use any other means of information during tke continuing agency. It is therefore believed, in view of tke facts of tkis case, tkat tke statute of limitation may not be held to begin to run until June, 1915. We conclude, on the whole ease, tkat tke judgment is, as complained of by appellant, contrary to tke evidence, and should be reversed and tke cause remanded.

Tke allegations of the trial amendment are sufficient, as against tke demurrer, and tke cross-assignment of appellee is overruled.

Tke judgment is reversed, and tke cause remanded.
      <S=»E'or other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PLY, C. J.

text:
    JONES v. GALVESTON, H. & S. A. RY. CO. et al.
    (No. 5810.)
    (Court of Civil Appeals of Texas. San Antonio.
    March 7, 1917.
    On Motion for Rehearing, April 4, 1917.)
    1. Appeal and Error <&wkey;263(5) — Reserving Grounds por Review — Exceptions to Charge.
    Under Rev. St. 1911, art. 1971, as amended by Acts 33d Leg. c. 59, § 3 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1971), providing exceptions to the charge not made before it is read are waived, and article 2061, as amended by Acts 33d Leg. c. 59, § 3 (Vernon’s Sayles’ Ann. Civ.' St. 1914, art. 2061), providing manner of excepting to rulings on instructions, exceptions first made in an amended motion for new trial are insufficient. .
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 1521.]
    On Motion for Rehearing.
    2. Carriers &wkey;228(5) — Damage to Live Stock — Suppiciency op Evidence.
    In action against railroad for damage to mare by rough handling, evidence held to sustain a verdict for defendant.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 960.]
    3. Carriers <&wkey;228(l) — Damage to Live Stock — Burden op Proof.
    Where defendant railroad proved plaintiff delivered mare to it in damaged condition, burden then rested upon plaintiff to show defendants’ negligence in handling the defective animal.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 957, 958.]
    Appeal from Bexar County Court for Civil Cases; John H. Clark, Judge.
    Action by Travis F. Jones against tke Galveston, Harrisburg & - San Antonio Railway Company and another. Judgment for defendants, and plaintiff appeals.
    Judgment affirmed, and motion for rehearing overruled.
    C. J. Gray and Don A. Bliss, both of San Antonio, for appellant. Terry, Cavin & Mills, and Jno. G. Gregg, all of Galveston, Baker, Botts, Parker & Garwood, of Houston, and Templeton, Brooks, Napier & Ogden and Ed W. Smith, all of San Antonio, for appellees.
   PLY, C. J.

Appellant sued the Gulf, Colorado & Santa Eé Railway and the Galveston, Harrisburg & San Antonio Railway Company, for the value of a mare, which was shipped from Temple to Edna, Tex., and which, it was alleged, died from injuries received on the train. The suit originated in the justice’s court, where judgment was rendered in favor of appellant for $150. On appeal to the county court a jury trial was had resulting in a verdict and judgment in favor of appellees.

No objections were urged to the charge of the court or to special charges requested by appellees and given by the court, and the first and second assignments, which complain of the charges, must be overruled. In article 1971, Revised Statutes 1911, as amended by Acts 33d Leg. c. 59, § 3 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1971), it is provided that the court shall submit its charge to the attorneys for inspection, and that any objections thereto must be presented to the court before the charge is read to the jury, and all objections not so made shall be considered as waived. In article 2061, as amended by Acts 33d Leg. e. 59, § 3 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2061), it is reiterated that:

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

These articles have been considered and enforced in a number of decisions. Railway v. Dickey (Sup.) 187 S. W. 184; Cleburne Street Railway v. Barnes, 168 S. W. 991; Elser v. Putnam Co., 171 S. W. 1052; Railway v. Smith, 172 S. W. 750; Railway v. West, 174 S. W. 287; Modern Woodmen v. Yanowsky, 187 S. W. 728; Roberts v. Houston Motor Co., 188 S. W. 257. Objections to the charge in an amended motion for new trial, filed about two weeks after the trial, did not meet the demands of the statute.

The third and fourth assignments of error question the sufficiency of the evidence to sustain the vérdict, but cannot be sustained because appellant did not object to the presentation of the cause to the jury, making no objections to the charge, and making no request to charge the jury to return a verdict for appellant. We will say, however, that there was evidence that would sustain the verdict of the jury.

There is no error presented requiring a reversal, and the judgment is affirmed.

On Motion for Rehearing.

The evidence shows that on July 19, 1913, a foundered mare, which, according to Reynolds, a witness for appellant, was lame in her front feet, was shipped from Temple to Edna. She was a mare of racing stock, but so badly used up by being foundered that she had been degraded to the menial service of pulling a delivery wagon, but she was eventually discarded for even that service and was “turned back” to appellant by his daughter, to whom he had given the mare. After reaching Edna, she was driven or led 16 or 17 miles to a ranch, where in about a month she died. The son of appellant swore:

“That he thought that a mare in the condition she was in could not stand shipment on a car as well as one that was not lame, and that she would be more likely to fall from the jarring of the car than one that was not lame.”

The jury was justified in finding that the condition of the mare when received at Edna was superinduced by her lameness when shipped.

In the case of Railway v. Richmond, 61 S. W. 410, cited by appellant, the cotton was in good condition when delivered to the railway company, and was consumed by fire on the way, and this court very properly held that the presumption of negligence would arise. Such presumption would not arise where a lame mare suffering from founder, shipped in the heat of July, is found in a worse condition when she reaches her destination than when she started, and especially where the son of appellant testified that her lameness would increase her chances of being injured on the way.

The larger part of the argument filed in support of the motion for rehearing is devoted to the latter part of the opinion of this court as to the failure of appellant to object to the charge and failure to request a charge to the jury to return a verdict for appellant, and in order to eliminate that matter we have considered the evidence. That part of the opinion will be withdrawn.

The petition in this case did not specify any acts of negligence, but charged negligence generally, and there is no evidence of negligence other than that arising from the presumption that a sound animal was delivered to the carrier, and an unsound one delivered by it at the point of destination. The jury evidently believed that the prima facie case was. destroyed by proof of the damaged condition of the mare when delivered to appellee, and from proof that the condition of the mare made her more liable to be injured. When the proof tended to s*how that the injuries to the mare may have arisen from her condition when delivered to the carrier, the burden then rested upon appellant to show that appellee had been negligent in handling the defective animal.

The motion for rehearing is overruled.
      dfe»For other cases see same to^ic and KBY-NXJMBER in all Key-Numbered Digests and Indexes