author: MeMEANS, J.

text:
    HOUSTON CHRONICLE PUB. CO. v. BOWEN.
    (No. 6998.)
    (Court of Civil Appeals of Texas. Galveston.
    Nov. 9, 1915.
    Rehearing Denied Dec. 2, 1915.)
    1. Appeal and Error <§=742 — Assignment op Ekeob — Statement op Objection.
    An assignment of error in the admission of evidence cannot be considered, where the statement following it does not show what objection was made to the evidence.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. <§=>742.]
    2. Libel and Slandeb <§=103 — Action—Evidence.
    In an action for libelous publication, including what tools place in plaintiffs room, the officers arrested him on suspicion that he might be guilty of a murder committed in another state, undertaking to describe with great particularity what happened at that time, it was permissible for plaintiff to show the untruth of the publication by testimony as to the actual occurrences when he was arrested.
    [Ed. Note. — For other cases, • see Libel and Slander, Cent. Dig. § 281; Dec. Dig. <§=103.]
    3. Appeal and Ekeob <§=>742 — Assignments op Eebok — Suppiciency of Statement.
    In an action for libel, an assignment of error in permitting plaintiff and another witness to testify that plaintiff had not been taken before a magistrate after his arrest was not supported by a statement that plaintiff, on direct examination as to whether the officer read any warrant to him when he was arrested, answered that they did not have any warrant.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dee. Dig. <§=742.]
    4. Libel and Slandeb <§=>7 — Actionable Words — Charge op Cbime.
    A publication in a daily newspaper of large circulation that plaintiff, who had come from Atlanta, Ga._, had acted so peculiarly as to attract the attention of detectives, and had been arrested and imprisoned without a warrant upon a mere unfounded suspicion that he was guilty of the murder of a girl who had been killed in Atlanta, and for whose murderer a reward had been offered, and of the finding of a girl’s bloodstained clothing hanging from the window sill of the room occupied by plaintiff, with a personal description of plaintiff and a publication of his picture and that of the murdered girl in the same issue, was libelous per se.
    [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 17-78; Dec. Dig. <§=7.]
    5. Libel and Slandeb <§=55 — Actionable Libel — Damages.
    The publication and circulation of matter libelous per se as to the plaintiff entitled him to actual damages, even though a part of the publication was privileged.
    [Ed. Note. — For other cases, _see Libel and Slander, Cent. Dig. § 333; Dec. Dig. <§=55J
    6. Libel and Slandeb <§=5 — Malice — Damages.
    Plaintiff, libeled by the publication of an article libelous per se, was entitled to recover actual damages, and was not required to prove malice except as a basis for the recovery of exemplary damages.
    [Ed. Note. — For other casgs, see Libel and Siander, Cent. Dig. § 278; Dec. Dig. <§=5.]
    7. Trial <§=194^-Instructions — Weight op Evidence.
    In an action for libel, defendant’s requested charge that, the plaintiff having failed to show by a preponderance of the evidence that defendant in publishing the article was actuated by express malice, defendant was not liable, was properly refused, a,s being on the weight of the evidence, in that it assumed that plaintiff had failed to prove malice by a preponderance of the evidence.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 413, 436, 439-441, .446-454, 456-466; Dee. Dig. <§=194.]
    8. Libel and Slandeb <§=4 — “Malice.”
    “Malice,” in an action for libel, means an act done with a bad or wicked intent and the specific intention to injure, or an act done with such wanton or gross indifference as to indicate an utter disregard of consequences.
    [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. § 111; Dec. Dig. <§=4.
    For other definitions, see Words and Phrases, First and Second Series, Malice.]
    9. Trial <§=260 — Instruction — Requests —Damages.
    In an action for libel, defendant’s requested charge on the issue of exemplary damages was properly refused, where the court’s main charge thereon was sufficiently full and fair to protect the defendant in all its rights.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. <§=260.]
    10. Libel and Slander <§=42 — Privilege— Judicial ob Administrative Proceedings.
    The publication of plaintiff’s unwarranted arrest and imprisonment by police officers on a mere suspicion of his connection with a murder then being investigated in another state was not, in the absence of malice, privileged as a publication of a proceeding in the administration of law, where the entries on the police blotter showing the time of arrest, plaintiff’s name, occupation, and residence, that he was being held and that he was released, was not shown to be required by any ordinance or shown to have been made in a proceeding in the administration of the law; and, even if that were so, nothing contained in the entries justified the publication that plaintiff had been arrested and imprisoned for the murder by a certain named person.
    [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 127-129; Dec. Dig. <§= 42.]
    11. Libel and Slander <§=5 — “Malice”— What Constitutes.
    In an action of libel, it is not necessary that malice be shown by proof of ill will, animosity, or hatred, or by willful or wanton act of gross indifference or an act done with the specific intent to injure the person injured; but it may be inferred from the fact that the publication was made with such utter recklessness as to indicate a disregard of the consequences.
    [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. § 278; Dec. Dig. <§=5.]
    12. Libel and Slander <§=112 — Action — ¡Sufficiency op Evidence op Malice.
    Evidence, in an action for libel in publishing plaintiff’s unwarranted arrest and imprisonment on the mere suspicion of his connection with a murder committed in another state, held sufficient to show actual malice, justifying an award of exemplary damages.
    [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 325-341; Dec. Dig. <§= 112.]
    Appeal from District Court, Harris County; J. W. Woods, Special Judge.
    Action by Paul P. Bowen against the Houston Chronicle Publishing Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.

      Hunt, Myer & Teagle, of Houston, for appellant. W. W. Kirkpatrick, G. W. Tharp, and W. J. Johnson, all of Houston, for ap-pellee.
   MeMEANS, J.

Paul P. Bowen brought this suit against the Houston Chronicle Publishing Company, a corporation, Marcelus E. Poster, Charles B. Gillespie, George E-. Kep-ple, Leon J. Van Laeys, and Robert A. Higgins, for the recovery of 820,000 as actual and $10,000 exemplary damages, growing out of a publication in the Houston Chronicle, a daily newspaper published in the city of Houston, in its issue of May 0, 1913, of an alleged libelous and defamatory article of and concerning him. Plaintiff dismissed as to all the defendants except the Houston Chronicle Publishing Company. A trial before a jury resulted in a verdict and judgment for the plaintiff for $2,000 as actual and $1,000 as exemplary damages, from which the defendant has appealed.

The article in question is as follows:

“Phagan Murder Suspect Held in Houston.
“Youth From Atlanta Is Placed in Jail by the • Police of This City.
“His Moans and Weeping at Hotel St. Jean Result in His Arrest.
“Mary Phagan, 14-Year Old Girl Who Was Killed.
“[Then follows a picture of Mary Phagan.]
“ ‘Why Did I Do It?’ Weeps Youth in His Room.
“Arrested He Denies He Ever Knew Girl.
“Paul P. Bowen, a bookkeeper and stenographer from Atlanta, Ga., is being detained by police authorities here in connection with the murder of 14-year old Mary Phagan of that city. Bowen was arrested last night by Chief of Police Davison, Chief of Detectives Peyton and Detective Hilton at 1520 Texas avenue, at the corner of Crawford street.
“ ‘A night of terror,’ as officers term it, led to the detention of Bowen. Sunday night in room 214 at the St. Jean Hotel, Main street and Prairie avenue, the young man paced the floor and moaned. Persons in adjoining rooms were unable to sleep and reported to the management that something was wrong in the room. An investigation discovered Bowen poring over letters and newspaper accounts of the murder and crying aloud.
“ ‘Oh, why, why did I do it,’ he is said to have cried. T would not have done it — I ought not to have done that — if I had it to go over I wouldn’t do it,’ were repeatedly heard by those who listened and who frequently walked through the hall in an effort to get some cause for the peculiar actions of the man.
“Shadowed All Day Monday.
“Monday the young man was shadowed and the matter was reported to the detective department. About 5 o’clock he registered off and moved to Texas avenue and Crawford street. There he engaged a room for a week. Last night, shortly after midnight, the officers went to the place and talked with him.
“Bowep answered a knock at his room door and then straightened himself and looked directly at the officers. ‘Who are you fellows, and what do you want here?’ he asked.
“The officers answered that they wanted to talk to him, and he then invited them into his room. He kept a distance from them, however, and hold in his right hand an open knife. Bowen appeared nervous throughout a conversation of perhaps 15 minutes, but replied to all queries promptly and to the point.
“When one of them told him to ‘consider yourself under arrest,’ he coolly answered, ‘That’s all right, but you’ve got the wrong man.’ He closed his knife and handed it to an officer as he sat on the side of the bed. To one officer he pointed out his trunk and grip.
“Officers opened the trunk and started ransacking it. They lifted out clothes — some good ones that indicated a well-dressed man — and then piled letters, post cards and pictures on the floor.
“ ‘If I had a gun you would never go (at this point the article is continued on page 13 under the headlines: “‘Why Did I Do It?’ Weeps Youth in Room. Arrested He Denies He Ever Knew Girl,” as follows:) through that trunk,’ said Bowen. ‘The things in there are mine and not yours — I don’t know anything about this affair and you’ll have to show me strong.’
“Officers talked to him for more than an hour at the police station, but Bowen stoutly denied any knowledge of the killing of the young girl, lie continued to show nervousness, however, and frequently inquired of the detectives why he was being questioned in such a manner.
“ Tf I had had the least suspicion that this would happen to me, I wouldn’t have been in Houston long — I would have left here Sunday night,’ he is attributed as saying.
“No information could be obtained stronger than of a circumstantial nature, such as led to his being taken into custody. He was placed in cell No. 2 upstairs and across the hall from the chief detectives’ office. lie slept but little and did not undress to lie down. Tuesday morning he was at the cell door early.
“Complains of Being Tired.
“Bowen complained of being hungry. He declared, too, that he was tired — almost worn out. He walked the floor nervously, then sat down on the side of his cot. He next stepped to the grating and inquired if he was going to be ‘allowed to stai've to death,’ or would he be given some breakfast.
“About 9 o’clock he was taken into a private office with Chief of Detectives Peyton and Detectives Andrew and Shelly. He admitted that he had lived in Atlanta and had come from that city to Houston. But that he ever knew Mary Phagan he stoutly denied. He snapped his answers to the officers.
“When shown tire pictures found in his trunk and grip he pointed out a number of persons, including several young ladies. He declared though that none of them are ‘Mary Phagan or any of her kinfolk.’ He told the officers again and again that he had never heard of the girl, but admitted that he knew the place where she had worked.
“The newspaper clippings, all of them accounts of the murder, Bowen failed to explain. He was shown them and portions of them were read to him. He admitted that he is familiar with the story of the crime through reading the papers, and said his interest is simply because Atlanta is his home.
“Bowen came to Houston Sunday night, presumably from New Orleans, although this has not been determined, as the prisoner declined to talk about his arrival as freely as he did other matters. He went directly to the St. Jean Hotel and asked for a room.
“ ‘What kind of a room do you want?’ was asked him. ‘I want a dollar room,’ he replied.
“ ‘Sorry, sir, but we haven’t got anything less than a dollar fifty,” the clerk answered.
“Bowen turned and walked to the door with his grip in hand. The clerk called him, but he did not heed it and started out. The clerk ran to the door and explained that he had just discovered a dollar room vacant. The young man returned and registered.
“On the book he wrote, ‘Paul P. Bowen, Atlanta, Ga.,’ in a bold hand. There was no effort to conceal his identity or the city from which he. came. The clerk assigned him to room 214 and ordered his grip sent to it. He turned to the guest then and inquired:
“ ‘Atlanta, eh?’
“ ‘Yes, Atlanta,’ was the only reply.
“The young man went to his room and a few minutes later went out for supper. He had registered at 7:45 o’clock. Before 9 o’clock he was in his room.
“Read Letters and Weeps.
“He did not retire at that hour, though. Opening his grip, it developed, Bowen read and re-read some letters. Most of these were from young ladies. He wept and then threw aside the missives.
“Picking from among the contents of the grip a number of newspaper clippings he pored over them as if eager to get every word of every sentence. Then he moaned aloud: ‘Oh, if I hadn’t done that í Why did I do it! What did I do it for!’
“Mrs. A. Blanchette of Texas City occupied an adjoining room. She was unable to sleep or even rest. The young man, she told officers, alarmed her and she feared something serious was the matter. She finally advised the night clerk at the hotel and he investigated.
“Mrs. Blanchette and the clerk heard the young man moaning, both told detectives. They decided, however, that it was best not to disturb him.
“Bowen continued his actions and talked to himself complaining of being lonesome. He begged to himself for company. He moaned and paced the floor and sobbed aloud. The clerk peered into the room and saw the letters, pictures and pieces of newspapers were scattered about him.
“The Hotel Clerk Determined to Watch the Young Man.
“Bertillion Expert Jones of the police department has apartments at the St. Jean Hotel and to him the clerk confided the story. It was then the detectives were advised and began to watch him.
“About 5 o’clock Monday Bowen, who had been in and out of the hotel all day, walked to the desk and announced, that he would ‘register off.’ He sent to room 214 for his grip. In the meantime his trunk was still at the railroad station.
“Attachés of the hotel lost trace of the young man when he first left the hotel, but, thinking that something was wrong, decided to locate him again. They found that he did not leave the city. His baggage — a trunk — was discovered at the station and traced to 1520 Texas avenue, a rooming and boarding house.
“Bowen engaged his room late in the evening, and then went uptown. He returned to his room late. A few minutes before midnight the police decided to interview him. The three men —Chiefs Davison and Peyton and Detective Hilton — went to the house, where he was taken into custody. ,
“Man Is About 22 Years Old.
“Bowen is about 22 years of age and has light hair. He is well dressed and well educated. He has been a bookkeeper and stenographer and claimed that he worked in Atlanta, Ga., for the Morrow Transfer Company. He gave his home address as 10S Ivy street.
“He has worked in several places in Georgia, Alabama, Louisiana and Texas. He claimed that it is his first visit to Houston. He declined to tell the police anything about his relations or any of his business connections, except as given above.
“Bowen is slight of build, perhaps 5 feet 6 or 7 inches in height. He weighs about 125 pounds and appears brisk and energetic. He admitted to officers that he had lived in Atlanta many years, nearly all his life. He denied, however, that he knows anything about the National Pencil Factory, Leo Frank, the manager, or any persons connected with or employed in the factory.
“To officers he proved a most unusual prisoner. He talked freely about some matters, but was evasive about others. Efforts to corner him in every instance proved in vain, though at times it seemed that he was on the verge of. complete explanation.
“His whereabouts and movements for the past several weeks are a blank to the officers. While he has seemed' to be giving information, when threshed out and' connected it has resulted in nothing worth while. Several times he has crossed himself in stories, the officers say, but always has managed to clear up the discrepancies.
“Evidently a ‘Ladies Man.’
“That he is a ‘ladies man’ is conceded from the numerous letters and photos found among his effects. He had in his grip and trunk perhaps a hundred pictures, the most of them amateur work. They show young men and women on auto rides and picnic parties, individual pictures, couples and in groups. When shown them he merely laughed and made a jocular remark about some girl being ‘pretty.’
“Batches of letters and post cards were found. The letters are nearly all from young ladies. Some of them are endearing ones. A few are from young men friends. Many of the letters are signed ‘Mary.’ None was signed ‘Mary Phagan.’ The signature of one letter bore the initials ‘M. J. P.’ This the police thought might have been written by the Phagan girl.
“$3,200 in Rewards Offered.
“Rewards aggregating $3,200 have been offered for the arrest and conviction of the person who killed 14-year old Mary Phagan.
“The Atlanta Constitution and the Georgian each has offered $1,000 reward.
“At the suggestion of Mayor Woodward, the city of Atlanta has offered a reward of $1,000.
“The state of Georgia, through the Governor, has offered a reward of $200.
“Bowen’s detention was continued Tuesday at the suggestion of Chief of Police Beavers of Atlanta, Ga. He wired Chief of Detectives George Peyton as follows:
“ ‘Hold Bowen and investigate. I am investigating here. Will Rush Information. Keep office advised.’
“Girl’s Undervest is Found Hanging from Window Sill of the Room Bowen Occupied.
“Hanging from the window of room 214, St. Jean Hotel, the room occupied by Bowen, has been found a blood-stained undervest, such as might be worn by a girl. It was of small size as if to suit a girl from 14 to 16 years of age.
“The discovery of the undervest was made Monday morning. A guest of the hotel saw it fluttering from the window and advised an attache of the place. It was wrapped in a paper and sent to the police station.
“It is believed that an effort was made to throw the vest out of the window and that it caught on the ledge. It was not seen there before Monday morning. Two guests at the hotel declared that it was not there Sunday early in the night.
“The vest has blood stains toward the top of the breast and about half way down at the front. At the back, between the shoulders, a slight trace of blood was also found. The vest is being held in connection with other properties by the detectives. Bowen has not been advised of the finding of the vest.
“What bearing it has on the case has not yet been developed. Chief Peyton said Tuesday that he would determine it this afternoon, perhaps, as well as some other things that are believed to be worth while — but yet in incubation.”

The publication of this article in the Houston Chronicle, owned and published by the Houston Chronicle Publishing Company, in its issue of May 6, 1913, was admitted by defendant, as was also the publication of the picture of the murdered girl, Mary Phagan, and the picture of the plaintiff in the same issue. The circulation of the Houston Chronicle containing the publication amounted to more than 33,000 copies.

Appellant’s first assignment of error complains of the action of the court in admitting in evidence, over the objection of defendant, the testimony of the witness George Andrews, who testified as to a conversation between the witness and the witness Peyton with reference to holding plaintiff in custody until the chief of police of Atlanta could be heard from. The assignment cannot be considered for the reason that the statement following it does not show what objection was made to the introduction of this testimony.

We overrule the second assignment of error, which complains of the action of the court in permitting the plaintiff to testify as to what happened at his (the plaintiff’s) room, at the time the officers placed him under arrest. The article complained of, and above set out, undertook to describe with great particularity what happened at that time, and it was permissible for plaintiff to show, if he could, the untruth of the publication by testimony as to the actual occurrences at his room when he was arrested.

The third assignment complains that the court erred in permitting the plaintiff and the witness Peyton to testify, over its objection, that plaintiff was not taken before a magistrate after his arrest. The statement following the assignment is substantially as follows:

“While the plaintiff, Bowen, was on direct examination, his counsel asked him the following question: * * * ‘Did the officer read any warrant to you that night?’ ‘No, sir; they did not have any warrant.’ Counsel for plaintiff then asked the witness George Peyton: ‘Did you have any warrant for his arrest?’ Answer: ‘No, sir; we did not have any warrant.’ ”

It is manifest that this statement is insufficient to sustain the assignment complaining, as it does, of the action of the court in permitting the witnesses to testify that plaintiff was not taken before a magistrate.

The publication as a whole was libelous per se, and the court therefore did not err in so instructing the jury and in also instructing them, that the publication and circulation by the defendant being admitted, to return a verdict in favor of plaintiff for actual damages, even though a part of the publication was privileged, which we are not prepared to concede. The fourth assignment, raising the point, is overruled.

The fifth assignment complains of the refusal of the court to give the following special charge requested by appellant:

“The plaintiff having failed to show by a preponderance of the evidence that the defendant in publishing the article complained of was actuated by express malice, you will let your verdict be for the defendant.”

The article being libelous per se, the plaintiff was entitled to recover actual damages, and was not required to prove malice except as a basis for the recovery of exemplary damages. This being true, the charge requested was an erroneous statement of the law, for by its terms it denied a recovery of actual damages unless express malice actuating the publication was shown. The charge was also properly refused because it was on the weight of the evidence, in that it assumed that the plaintiff had failed to prove malice by a preponderance of the evidence. The preponderance of the evidence, under the facts of this case, was a question peculiarly within the province of the jury to determine, and not a question of law to be decided by the court. The assignment is overruled.

The sixth assignment complains of the refusal of the court to give the following special charge requested by appellant:

“In order to find exemplary damages against the defendant, the publication charged to have been made by it must have been wanton and malicious. By the term ‘malice,’ as used herein and in other charges submitted to you by the court, is meant a bad, wicked, or vile intent; the intentional and wicked doing of a wrong hurtful to another. Therefore if you should find that the publication as made, if it was made by the defendant, was libelous, and that it was not privileged, yet if you find from the evidence that the defendant, acting through its officers and agents, was not actuated by malice in making said publication, then as to exemplary damages you will find for defendant.”

The charge was correctly refused on two grounds: First, the definition of malice, therein given, was too restricted; and, second, the court’s main charge on the issue of exemplary damages was sufficiently full and fair to protect the defendant in all of its rights. In Houston Chronicle Publishing Co. v. McDavid, 173 S. W. 470, in defining the word “malice,” it is said:

“A willful or wanton act or gross indifference, as used in the definition of malice, means an act done with the specific intention to injure the person that was injured, or an act done with such utter recklessness as to indicate a disregard of consequences.”

The requested charge omits from the definition of malice the matter of gross indifference and of recklessness that would indicate a disregard of consequences, and would deny a recovery except upon proof that the publication was actuated by a bad, wicked, or vile intent, and with the specific intention to injure the plaintiff. The assignment is overruled.

The seventh assignment complains of the refusal of the court to give the jury the fourth special charge requested by the appellant, which contained the instruction that the publication in a newspaper of a fair, true, and impartial proceeding in a court of justice, or a proceeding in the administration of the law, such as the arrest of a person, is privileged matter under the law, and no action will lie for the publication of such proceedings Unless such publication is made from actual malice on the part of the party publishing.

It is asserted by the proposition under the assignment that it being true that plaintiff was arrested and incarcerated, and these facts being matters of public record in the police department of the city of Houston, defendant had the right to publish same, for which plaintiff could have no cause of action except under proof of actual malice.

We think that in refusing to give the charge the court committed no error. It is not pretended that the arrest was made upon a warrant issued therefor by the proper authorities, but the contrary was conclusively shown. When, after his arrest, plaintiff was taken to the police station, the following entries were made in the blotter or police docket there kept for such purpose:

“Time of arrival, Tuesday, May 6, 1913, 1 a. m. Entered P. P. Bowen, white, 22; male. Occupation, clerk. Residence, Newman, 6a. Offense, hold. Arresting officer, Peyton and Hilton. Disposition of case, released by Chief, May 6, 6 p. m.”

There was no evidence to show that the ordinances of the city of Houston required the keeping of such a docket, or from which it can be inferred that the entries made therein was a proceeding in a court of justice, or other official proceeding authorized by law in the administration of the law, such as to render as privileged the publication of entries made therein. But even if this is not true, there is nothing contained in the entries to justify the publication that the plaintiff had been arrested and incarcerated for the murder of Mary Phagan, and, this being true, the charge was correctly refused. The assignment is overruled, as well as the eighth, ninth, and tenth, which present substantially the same point.

The eleventh assignment complains that the verdict of the jury awarding exemplary damages was unsupported by the evidence and by a total lack of testimony to show actual malice upon the part of the defendant, its officers and agents.

It may be conceded that there was no ill will, animosity, or hatred entertained by the defendant or its officers toward the plaintiff, and that in that sense there was no express malice shown by the evidence. But in a case of libel it is not required that malice be shown by proof of ill will, animosity, or hatred, nor is it essential to show a willful or wanton act or gross indifference or an act done with the specific intention to injure the person that was injured; but malice may be inferred from the fact that the act complained of was done with such utter recklessness as to indicate a disregard of the consequences. Houston Chronicle Pub. Co. v. McDavid, 173 S. W. 470; Fessinger v. El Paso Times Co., 154 S. W. 1175; Cotulla v. Kerr, 74 Tex. 95, 11 S. W. 1058, 15 Am. St. Rep. 819; King v. Sassaman, 54 S. W. 304.

The facts that gave rise to the publication are that the'plaintiff was unjustly suspected by certain police officers of Houston to be guilty of the murder of Mary Phagan in Atlanta, Ga. Acting upon a mere suspicion they took the plaintiff into their custody, without any warrant having been issued for his arrest, and therefore without authority of law (Code Crim. Proc. art. 259), and incarcerated him. It was upon these facts that the article hereinbefore copied was builded. There was no proof to show that the reporter for the newspaper was justified in writing, or the defendant in publishing, the statement that “his moans and weeping at the Hotel St. Jean result in his arrest,” or the statement, “ ‘Why did I do it,’ weeps youth in room,” or that a “night of terror” led to the detention of Bowen, nor that “Sunday night in room 214, at the St. Jean Hotel, * * * the young man paced the floor and moaned. Persons in adjoining rooms were unable to sleep and reported to the management that something was wrong in the room. An investigation discovered Bowen poring over letters and newspaper accounts of the murder and crying aloud. ‘Oh, why, why did I do it,’ he is said to have cried. T ought not to have done it — -I ought not to have done that —-if I had it to go over I wouldn’t do it,’ were repeatedly heard by those who listened and who frequently walked through the hall in an effort to get some cause for the peculiar actions of the man.”

It seems that, upon the mere fact of the arrest and incarceration of the plaintiff, an energetic and enterprising reporter of the Chronicle, Higgins by name, evolved from his fertile brain a mass of circumstantial evidence tending to establish that plaintiff had murdered Mary Phagan; and, if the truth of any of the statements was proved on the trial, the appellant has failed to call attention to it in its brief. Prom aught that appears to the contrary, the damning circumstances as related in the publication were without the semblance of truth, and the defendant published the entire'sensational article without question or inquiry" as to its truth or falsity, so far as the evidence shows, and with reckless disregard of the consequences. There was an entire absence of probable cause for the publication, and, as shown by the authorities above cited, malice, in such circumstances, may be inferred. We overrule the assignment.

The twelfth assignment complains that the verdict is excessive. We have carefully reviewed the evidence in this regard and have concluded that the amount of the award was justified.

No reversible errors appear in the record, and therefore the judgment of the court below is affirmed.

Affirmed.
      <S=For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: LANE, J.

license: Public Domain

text:
    CAMDEN FIRE INS. CO. v. YARBROUGH.
    (No. 6952.)
    (Court of Civil Appeals of Texas. Galveston.
    Nov. 12, 1915.
    Rehearing Denied Dec. 23, 1915.)
    1. Insurance <@=335 — Policy— Conditions— •Inventory.
    A provision of a fire insurance policy that insured would take a complete itemized inventory of stock on hand, and that otherwise the policy should be void, was met by the insured’s inventory showing the number of pieces of Ms pine, oak, and gum lumber, the dimensions of each piece, and the total number of feet of each kind separately, though it did not give the class of the lumber or state its value.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 852, 853; Dec. Dig. <@=>335.]
    2. Evidence <@=461 — Parol Evidence — Fire Insurance.
    In an action upon a policy covering a stock of lumber, defended on the ground that it is void for want of an inventory required by it, testimony of the insured that before it was issued the insurer’s agent told him what the inventory should contain, that he followed such instruction, and that his inventory was approved by the agent, was admissible to show the kind of inventory contemplated by the parties before and at the time the policy was issued.
    TEd. Note. — For other _eases,, see Evidence, Cent. Dig. §§ 2129-2133; Dec. Dig. <@=461.]
    Appeal from District Court, Nacogdoches County; L. D. Guinn, Judge.
    Action by R. H. Yarbrough against the Camden Fire Insurance Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    June C. Harris and Audley Harris, both of Nacogdoches, and Thompson, Knight, Baker & Harris and Geo. S. Wright, all of Dallas, for appellant. King & Seale, of Nacogdoches, for appellee.
   LANE, J.

This suit was instituted by R. H. Yarbrough, plaintiff, against the Camden Fire Insurance Association of New Jersey, a corporation, to recover upon a policy of fire insurance for §52,000 issued by said association upon a stock of lumber owned by the plaintiff, and which was thereafter destroyed by fire. The case was tried before a jury upon special issues- submitted by the court, and in answer thereto it returned the following answers:

First. The total cash market value of the lumber of plaintiff that was burned in the fire in July, 1913, at Grisby, Tex., was $5,-176.86.

Second. The lumber burned was not set on fire by any one.

Third. The plaintiff did not set the lumber on fire.

Upon such findings of the jury the court rendered judgment in favor of the plaintiff against the defendant for $2,000, interest, and costs of court. From this judgment, the Camden Fire Association has appealed.

In appellant’s brief it has grouped its first and second assignments, which are as follows:

First assignment of error:

“The court erred in refusing defendant’s special charge No. 1, wherein the court was requested to instruct the jury to return a verdict for the defendant, for the reason, among others, that the undisputed evidence shows that the plaintiff neglected and failed to comply with the record warranty clause requiring the taking and presenting of books, inventories, and records, and that thei policy was void.”

Second assignment of error:

“The court erred in refusing defendant’s special charge No. 2, wherein the court was requested to instruct the jury to return a verdict for the defendant, for the reason, among others, that the undisputed evidence shows that the plaintiff failed to substantially comply with the record warranty clause, one of the provisions of the contract of insurance sued upon.”

Under this group of assignments appellant submits but one proposition, which is as follows:

“The provision of the policy sued upon to the effect that, unless a complete, itemized, and detailed inventory of the stock has been taken within 12 months prior to the issuance of the policy, such an inventory shall be taken within 30 days after the issuance of the policy, is a reasonable one, and a failure of the assured to produce such an inventory, taken within 12 months prior to the issuance of the policy, or within 30 days thereafter, avoided such policy, and entitled the defendant to an instructed verdict.”

Section 1 of said insurance policy is as follows:

“The assured will take a complete itemized inventory of stock on hand at least once in each calendar year, and within twelve months of the last preceding inventory, if such has been taken. Unless such inventory has been taken within twelve calendar months prior to the date of this policy, and together with a set of books showing a complete record of the business transacted since the taking of such inventory is on hand at the date of this policy, one shall be taken within thirty days after the date of this policy, or in each and either ease this entire policy shall be null and void. It is understood and agreed that this clause and the requirements thereof is one of the inducing clauses of the acceptance of this risk herein assumed, and the issuance of this policy, and that the terms and requirements thereof are material to the risk, and to this insurance, and to any loss and damage happening to the property described in this policy.”

That the policy sued upon was issued by the defendant; that it was dated June 7, 1913, and was to run to December 7, 1913, that after the middle of May next preceding the issuance of the policy plaintiff had taken a complete list of the lumber insured, showing the number of pieces of each class thereof as to its width, thickness and length, and showing amount of pine, gum, and oak lumber separately, was unquestioned and undisputed.

R. H. Yarbrough, after testifying, on direct examination, that the local agents of the appellant who negotiated the contract of insurance with him were Miss Jennie Harris and Thos. J. Hall, testified further as follows:

“I furnished Mr. Hall and Miss Jennie Harris with an inventory of this lumber when I took out the insurance. They looked over it and accepted the risk. I had a conversation with them when I took this policy out as to the value of this lumber. I placed a value of $12.50 per 1,000 feet all around on the lumber when I insured it. I made the inventory so I would know how much lumber I had there. I wanted to get it insured. Yes, sir; I say I wanted to get it insured. I went to Miss Jennie Harris, and she told me what to do. Yes, sir; I say they told me what to do. I followed their instructions all the way through.”

This testimony was uncontradicted. Appellant, however, excepted to the admission of that portion of said testimony wherein the witness said “she told me what to do,” as being immaterial and could in no way affect the contract of insurance upon which plaintiff .sues. This witness, on cross-examination by counsel for appellant, testified as follows:

“I think it was some time in June, I believe it was just before that inventory was taken, that I had this conversation with Miss Jennie Harris. I was here and talked to her a month before I got the insurance policy issued, I think. I talked to her and Mr. Hall both. Yes; I talked to both of them. I talked to Mr. Hall. It was up there in the office. There are two offices right there together. I talked to both of them. I talked to them in her office and in his office, too. I hardly know them apart. Hers is the first one, and his is the next. Yes, sir; in the agency office. Yes, sir; I had a conversation with Mr. Hall before the policy was issued. I had a conversation with him several times, and I think I did before, and I know I did aftex-wards. Yes, sir; I had one before. I couldn’t give any dates. I think it was back in June, back of May, I think. I had the conversation with Mr. Hall up there in the office. I think I talked with them both the same day. They were both there. The two were there when I was talking. Yes, sir; before the policy was issued, and I had a conversation with them after it was issued, too. The very first conversatioix I ever had up there was with Miss Jennie, and she gave me the outline of what it would take ta get insurance, aboxxt the location and distance, and all of that, and then about the inventory; told me how it should be gotten up. Miss Jennie did that, and I wont ahead then and got this inventory and furnished it to them, had Mr. Rhodes to make it and I furnished it to them, and I think Mr. Hall was present when I presented it.”

It will be seen tbat by appellant’s only proposition under bis first and second assignments it is allgeed tbat appellee bad failed to bave or take a complete itemized inventory of bis stock of lumber insured, as provided in section 1 of said insurance policy, and therefore said policy is void. His insistence is that tbe inventory taken does not meet tbe requirements of tbe policy, in tbat it does not give tbe class of lumber, as- to bow much of it was first class, bow mucb second class, and so on, and in not stating its value.

We bave already stated tbe inventory shows tbe number of pieces of tbe pine lumber, tbe number of pieces of tbe oak lumber, and tbe number of pieces of tbe gum lumber, separately. It also, shows tbe length, breadth, and thickness of such pieces and tbe total number of feet of tbe pine, gum, and oak separately. Tbe policy does,not require an ap-praisement of tbe lumber as insisted upon by appellant.

In support of appellant’s proposition we are cited to Western Assurance Co. v. Kemendo, 94 Tex. 367, 60 S. W. 661; Fire Ass’n of Philadelphia v. Calhoun, 28 Tex. Civ. App. 409, 67 S. W. 153; Roberts-Willis-Taylor Co. v. Sun Ins. Co., 19 Tex. Civ. App. 338, 48 S. W. 559; Orient Ins. Co. v. Dorroh-Kelly Co., 135 S. W. 1165; Royal Exchange Ins. Co. v. Rosborough, 142 S. W. 70; Delaware Ins. Co. v. Monger & Henry, 74 S. W. 792; Shawnee Fire Ins. Co. v. Rowell, 30 Okl. 466, 119 Pac. 985; and others.

Tbat tbe purported inventories shown in the cases cited are not in any sense complete inventories of tbe properties to which they were intended to relate there can be no doubt, and we fully agree with tbe holdings in those cases as to tbe insufficiency of inventories therein set out. But in tbe present case we think tbe inventory shown by tbe facts is in substantial compliance with section 1 of tbe policy of insurance in this case, and tbat it was just such inventory as was contemplated and demanded by the appellant association of appellee. We therefore overrule appellant’s assignments of error one and two.

What has been said as to assignments 1 and 2 will also apply to assignment 3, and for tbe same reason given for overruling said assignments 1 and 2 we overrule assignment 3.

Tbe fourth assignment insists tbat tbe court erred in permitting R. H. Yarbrough to testify tbat before tbe issuance of tbe policy Miss Harris, tbe agent of tbe insurance association, with whom be negotiated for tbe issuance of the policy, told him what tbe inventory required by tbe policy was to contain, tbat be followed her instructions in making tbe inventory in question in every particular, and after its preparation and before tbe issuance of tbe policy be presented same to said agent, and that she approved tbe same and issued the policy. Appellant’s proposition under this assignment is tbat:

“A conversation between the agent of an insurance company and the assured in reference to what should be done to comply with the written eonti’act of insurance, which took place prior to the writing of the contract, is merged into the written contract, and in a suit upon the written conti-act evidence' of such conversation is not admissible.”

We think tbe inventory taken was a substantial compliance with tbe requirements of tbe policy, independent of tbe testimony objected to, but we also think such testimony was admissible to show what kind of inventory was contemplated by tbe negotiating parties before and at tbe time tbe policy was issued, and we therefore overrule tbe fourth ] assignment.

This disposes of all of appellant’s assignments, and, as we find no error committed by the court in the trial of the case, the judgment of the trial court is affirmed.

Affirmed.
      <S=For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PLEASANTS, C. J.

text:
    REEVES v. SIMPSON et al.
    (No. 6995.)
    (Court of Civil Appeals of Texas. Galveston.
    Nov. 24, 1915.
    Rehearing Denied Dec. 23, 1915.)
    1. Wills @=608 — Construction— Estates Created — Rule in Shelley’s Case.
    Where the testator devises a life estate in lands to his son and the remainder to his heirs, and his heirs predecease the devisee, the life tenant takes the fee under the rule in Shelley’s Case.
    LEd. Note. — Eor other eases, see Wills, Cent. Dig. §§ 1372-1378; Dec. Dig. @=608.]
    2. Wills @=682 — Construction — Estates Created — Trusts.
    A will devising lands to trustees to control and manage the property and to pay the income for the support of a son and his family, the remainder on his death to his heirs does not create a life estate in the son, but he is only a beneficiary of the trust.
    [Ed. Note. — Eor other cases, see Wills, Cent. Dig. §§ 1602, 1607-1611; Dee. Dig. @=682.]
    3. Trusts @=114 — Executed Trusts.
    In such case, where the will provided that the devise should be used for the benefit of all children lawfully born to the son, the trust was not executed; no time being stated for the ascertainment of the children of the class.
    [Ed. Note. — For other cases, see Trusts, Cent. Dig. § 164; Dec. Dig. @=114.]
    4. Evidence @=58 — Presumptions — Possibility oe Issue.
    In ascertaining when children of a class not otherwise determined shall be ascertained, it is presumed, under the common law, that a man or woman is capable of having issue until his death.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 80; Dec. Dig. @=58.]
    Appeal from District Court, Burleson County; Ed. R. Sinks, Judge.
    Action by J. H. Reeves against P. H. Simpson and another, as substitute trustees, and others. From a judgment for defendants, plaintiff appeals.
    Affirmed.
    Garrett & Gerland, of Caldwell, and Wallace & Moore, of Cameron, for appellant. C. 5. Williams and R. J. Alexander, both of Caldwell, for appellees.
   PLEASANTS, C. J.

This suit was brought by appellant against appellees P. H. Simpson and W. E. Simpson, substitute trustees under the will of Edward Reeves, deceased, and Lula J. Cromartie, a sister of appellant, and her husband, Neil J. Cromartie, D. E. Reeves, a brother, and Annie Hollingsworth, a sister of appellant, each of whom is a devisee and legatee under said will. The purpose of the suit was to have the will construed as giving appellant a fee-simple title in one-fifth of the estate of the testator.

The record discloses the following facts: Edward Reeves died testate in Burleson county, Tex., in July, 1900, leaving five children, Mrs. Lula J. Cromartie, D. E. Reeves, J. I-I. Reeves, plaintiff, Mrs. Annie Hollings-worth, and Xemines Reeves, as his only heirs at law. Xemines Reeves died during the pen-dency of this suit intestate and without issue. Edward Reeves’ will was duly probated in Burleson county, Tex., on the —<-day of September, 1900, and in accordance with the will the estate of said Reeves was partitioned, and the land described in plaintiff’s petition was awarded to the trustees named in said will as trustees of the plaintiff. Plaintiff’s wife, Ethel, died in 1899, before the testator, Edward Reeves, and the only child of his marriage died in infancy before the death of its mother. The plaintiff married Mattie Wheeler on May 13, 1900, and she was his wife and living with him at the death of the testator; plaintiff and said Mattie Wheeler were divorced in 1903. The plaintiff now has no living wife, and has no living children and no descendents of living children, and plaintiff’s heirs at law are the defendants Mrs. Lula J. Cromartie, D. E. Reeves, and Mrs. Annie Hollingsworth. The trustees named in the will, viz., A. W. Mc-Iver and Emmett B. Bell, are deceased, and the defendants P. H. Simpson and W. ,E. Simpson have been appointed trustees by the court in the manner provided in the will. At the time of the making of the will and before, the plaintiff was of extravagant and dissolute habits and had made away with all property inherited from his mother’s estate and also from his grandfather’s estate, and all property given him by his father, the testator ; that such extravagant habits were well known to his father before and at the time of making the will. The estates inherited by plaintiff as aforesaid were small and were expended by plaintiff prior to the making of the will by the testator. *

The following is a copy of so much of the will as relates to the points at issue:

“Item III. I will and bequeath the residue of my estate, after paying my debts and giving the piano to my daughter, Annie Reeves, as follows: To my daughter Lula J. Cromartie, wife of Neil Cromartie, subject the limitations below named, one-fifth part of my said estate, but with the exceptions and reservations, that she shall not be permitted to sell any part of the lands which she may receive, in the partition of my estate, but she may receive and enjoy the rents and revenues arising from said lands during her natural life and at her death the same to pass to her children; to my son David E. Reeves one-fifth part, to my daughter Annie Reeves one-fifth part and to my son Xemines Reeves one-fifth part, and to A. W. Melver and Emmett B. Bell as trustees for my son James Henry Reeves, and his wife and such children as may lawfully born unto my said son James Henry Reeves, one-fifth part to be held and used by them as hereinafter directed in this will, and direct that in the partition of my estate that each receive an equal share of land and personal property or as nearly so as is practicable.
“Item IV. It is my will that all of my personal property, except notes and accounts, be sold by my executors hereinafter named, as soon after my death as is practicable, and that the same be sold for cash, or on credits as to my executors may seem best, and in case they sell on a credit that they take notes with approved securities for the purchase money therefor.
“Item V. I direct that the said A. W. Mclver and Emmett B. Bell, as trustees for my son James Henry and his wife Ethel, and such children as may be lawfully born unto him, shall manage and control the one-fifth part willed to them as trustees as aforesaid, as follows: They shall invest what money they may so receive, over and above a reasonable support to the parties above provided for, in good interest-bearing notes, secured by vendor’s lien on land, or a deed of trust on ample real estate, with the highest legal rate of interest they can get therefor; to manage and control the land and such other property as may be set apart to them aS such trustees in the partition of my estate, in such manner as may seem best to them for their said trust estate, to rent or lease the land of said estate; and out of the rents and revenues arising from said trust estate, by way of interest or otherwise to allow to the said James Henry Beeves, and his wife Ethel, as long as she may be the wife or widow of said James Henry Beeves and to such children as may be lawfully born unto said James Henry Beeves, a reasonable support. In case the said Ethel shall be divorced, from the said James Henry Beeves, or in cáse she shall after his death marry again, then she is to receive no further support or allowance from said trust estate. In case of the death of my said son James Henry Beeves, then the one-fifth part willed in trust for him and his wife and children or as much thereof as may be left thereof shall pass and descend to his lawful heirs saving such part however as may be sufficient to support and maintain the said Ethel Beeves, should she under the provisions of this will be entitled to receive the same. In case of death or refusal to act of either said trustees, then the district court of Burleson county, Texas, shall appoint a substitute or substitutes for said trustees and in case of the death of either or both of the substitute trustees of the said court shall appoint another substitute or substitutes, as the ease may be, the power to appoint to continue as long as the said James Henry Beeves may live; it being my intention to at all times have two trustees for said estate. Said trustees to have reasonable compensation for managing said trust estate.”

Under appropriate assignments, appellant contends that, his wife and child having died before the death of the testator, the bequest as to them lapsed, arid that the devise to him being in effect a devise for life with remainder to his heirs, under the rule in Shelley’s Case, he took a fee-simple title, and that the trial court erred in not so holding.

If, as contended by appellant, the will should be construed as giving him a life estate in the lands thereby divided with remainder to his heirs at law, under the rule in Shelley’s Case which has been uniformly enforced by the courts of this state and is a well-settled rule of property in this jurisdiction, the intention and desire of the testator cannot be given effect, and appellant would have a fee-simple title to the property. Lacey v. Floyd, 99 Tex. 112, 87 S. W. 665; Hancock v. Butler, 21 Tex. 801; Hawkins v. Lee, 22 Tex. 544; Seay v. Cockrell, 102 Tex. 280, 115 S. W. 1160.

We do not think, however, that this will should be so construed. The legal title to the property in controversy is placed by the will in the trustees therein named, and the only estate given to appellant is a reasonable support during his life out of the income of the trust estate. By the clear and unambiguous language of the instrument the estate is willed and bequeathed to the trustees, not to appellant, and when the instrument is considered as a whole it is, we think, clear that it was the intention of the testator to place the legal title in the trustees, who are given the exclusive control and management of the property and directed to apply such portion of the income as might be necessary to the reasonable support of appellant, his wife, and such children as might be lawfully born to appellant, and the will cannot be construed as bequeathing a life estate in the property to appellant, but only makes him a beneficiary of the trust estate bequeathed to the named trustees and their successors. Dulin v. Moore, 96 Tex. 135, 70 S. W. 742; Eskridge et al. v. Trust Co., 29 Tex. Civ. App. 571, 69 S. W. 987; Farrell v. Cogley, 146 S. W. 315; Appel v. Childress, 53 Tex. Civ. App. 607, 116 S. W. 129.

It seems clear to us that so long as appellant lives the trust imposed upon the trustees named in the will, and their successors as provided in the will, cannot be regarded as an executed trust. They are directed to control and manage and invest the income of the trust estate in part for the benefit of appellant “as long as the said James Henry Beeves shall live,” and also for the benefit of any children that may be lawfully bom to him. This latter provision establishes a trust not only for the benefit of appellant during his life, but also for the benefit of any children born to him. Under the common law, which is in force in this state, men and women are regarded as capable of having children as long as they live. Coke on Littleton, 28; 2 Blackstone, p. 125; May v. Bank & Trust Co. (Ky.) 150 S. W. 12, 48 L. R. A. (N. S.) 865; Quigley v. Quigley (Ky.) 170 S. W. 523, and 172 S. W. 1071; Kesterton v. Bailey, 35 Tex. Civ. App. 235, 80 S. W. 97; Rand v. Smith, 153 Ky. 516, 155 S. W. 1134.

From the views above expressed, it follows that the judgment of the trial court should be affirmed, and it has been so ordered.

Affirmed.
      <S=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: McMEANS, J.

text:
    SHIPP v. CARTWRIGHT et al.
    (No. 6960.)
    (Court of Civil Appeals of Texas. Galveston.
    Nov. 12. 1915.
    Rehearing Denied Dec. 9, 1915.)
    1. Appeal and Error ©=>742 — Assignments —Statements—Sueeiciencv.
    An assignment that the trial court erred in setting aside a judgment rendered at a former term can be reviewed only upon a full statement, showing what -issues were joined and what the evidence was on the former trial.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. § 8000; Dee. Dig. <§=>742.]
    2. Appeal and Ekkob <§=>742 — Assignments —Sueeiciency.
    An assignment, complaining that the court erred in not disregarding the findings of the jury on special issues and in not rendering judgment in favor of plaintiff, cannot be considered, where not followed by a statement showing the special issues submitted, the answers of the jury, and all of the material evidence relied upon to show that the answers were not warranted ; therefore where the only statement was that the answers were not supported by the facts, the assignment cannot be considered.
    [Ed. Note — Por other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. <®=>742.J
    3. Appeal and Error <§=>759 — Briefs—Sue-EICIENCY.
    Under rule 29 for Courts of Civil Appeals (142 8. W. xii), declaring that assignments of error shall be copied in the brief, the brief of an appellant presents no matter for review when the assignments were not literally copied therein.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. § 3094; Dec. Dig. ©=>759.j
    4. Teial <§=>143 — Directed Verdict — Evidence.
    Where the evidence is conflicting, the court should not direct a verdict for either party.
    [Ed. Note. — Por other cases, see Trial, Cent. Dig. §§ 342, 343; Dec. Dig. ©=>143.]
    5. Improvements <§=>4 — Compensation — Good Faith.
    That one in possession knew of plaintiff’s adverse claim to the land will not deprive him of the right to compensation for improvements; for he might, in good faith, have believed himself the true owner, and have been ignorant of plaintiff’s superior rights.
    [Ed. Note. — For other cases, see Improvements, Cent. Dig. §§ 4, 7-26; Dee. Dig. ©=4.]
    6. Appeal and Error <§=>1068 — Review — Harmless Error.
    Where the jury found in favor of defendant. the erroneous refusal of a charge on defendant s right to compensation for improvements is harmless.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4225-4228, 4230; Dee. Dig. <§=>1068.]
    7. Appeal and Error <§=>1008 — Review — Harmless Error.
    Where the jury found that plaintiff and his predecessors had occupied the land for 10 consecutive years before institution of suit, the erroneous refusal of the court to so charge was immaterial.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4225-4228, 4230; Dec. Dig. ©=>1068.]
    8. Appeal and Error <§=742 — Assignments oe Error — Propositions.
    An assignment of error, followed by a proposition not germane, will not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. <§=>742.]
    <9. Appeal and Error <§=>742 — Assignments op Error — Statement.
    An assignment, complaining of the introduction o'f testimony given by plaintiff on a former trial, presents nothing for review, where the statement did not show the nature of the testimony, its materiality, or the objections urged.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. <§=>742.]
    Appeal from 'District Court, Nacogdoches County; L. D. Guinn, Judge.
    Action by J. C. Shipp against Leonidas Cartwright and others. From a judgment for defendants, plaintiff appeals.
    Affirmed.
    June C. Harris, Audley Harris, and Geo. F. Ingraham, all of Nacogdoches, for appellant. Blount & Strong, of Nacogdoches, for appellees.
   McMEANS, J.

J. C. Shipp brought this suit against Leonidas Cartwright, R. T. Patterson, and M. S. Griffin to recover 100 acres of land, part of the J. W. Anderson survey, in Nacogdoches county. In addition to the ordinary allegations in suits of trespass to try title, plaintiff pleaded the statute of limitations of 10 years. The case was tried before a jury, and resulted in a verdict in response to special issues in favor of the defendants, upon which a judgment in defendants’ favor was entered, and from which the plaintiff has appealed.

Appellant, by his first assignment of error, complains of the action of the court in setting aside a judgment rendered in his favor at a. former term of court and granting to the defendants a new trial. If the action of a trial court in setting aside a judgment rendered at a former term could ever be reviewed at all, it could only be done upon a full statement, showing what issues were joined and what the evidence was on the former trial. The statement made by appellant under the assignment is wholly insufficient to authorize our consideration of the question presented.

The second assignment complains that the court erred in not disregarding the findings of the jury upon the special issues submitted, and in not rendering judgment in favor of plaintiff. The proposition advanced under the assignment in effect is that, where the answers of the jury to the special is? sues are contrary to law and the facts proved, it is the duty of the court to disregard such findings and to render judgment in accordance with law. This assignment, to require consideration by this court, should have been followed by a statement, showing, not only the special issues submitted and the answers of the jury thereto but all of the material evidence relied upon by the appellant to show that the jury’s answers were not warranted by the facts, the only statement made by appellant in support of his assignment and proposition is as follows:

“The answer of the jury to the questions propounded by the court to them were not supported by the facts,. and were clearly contrary to law; therefore it was the duty of the court to set aside the verdict and render judgment for the plaintiff.”

Manifestly the statement is insufficient to require our consideration of the assignment, and we decline to consider it.

A consideration of all the other assignments presented by appellant in his brief is objected to by the appellees upon the ground that the assignments of error in the record have not been truly copied in the appellant’s brief. A comparison of the assignments found in the record with those in the brief shows that they were not literally copied, but in some the substances only were stated, while in others some matters not contained in the original were added. Rule 29 for the Courts of Civil Appeals (142 S. W. xii) provides that:

“The appellant or plaintiff in error, in order to prepare properly a case for submission when called, shall have filed a brief of the points relied on in accordance with and confined to the distinct specifications of error (which assignments shall be copied in the brief) * * * and each assignment not so copied * * * shall be regarded as abandoned. * * * ”

This rule has not been observed by the appellant in preparing this case for submission, and for that reason this court is not required to consider the assignments. Horseman v. Coleman, 57 S. W. 304; Alexander v. Bowers, 79 S. W. 342; Martin v. Bank, 102 S. W. 131; Dees v. Thompson, 166 S. W. 57; Overton v. Colored K. of P., 163 S. W. 1053; Iowa Mfg. Co. v. Walcowich, 163 S. W. 1054.

But we have, however, considered the question raised by the fourth assignment, which complains of the refusal of the court to peremptorily instruct a verdict in his favor, and are of the opinion that no reversible error is shown. As before stated, the plaintiff pleaded that he had acquired title to the land, in controversy under the statute of limitations of 10 years. Upon the trial he introduced proof upon this issue which, had it stood alone, would probably have required a verdict in his favor. But the proof offered by him in this regard was controverted by proof offered by the defendants, and sufficient proof was made by them on this issue to make the question peculiarly one for the determination of the jury, and in such circumstances the findings of the jury are conclusive upon the appellate court. It was not error, therefore for the court to refuse to instruct the jury as requested, and the assignment is overruled.

There was no error in refusing to give the special charge complained of in the sixth assignment of error, in which plaintiff sought to have the jury instructed that, if they found that the defendant M. S. Griffin knew of the adverse claim of the plaintiff or those under whom he claimed before he made any improvements on the land, to find against him on the issue of improvements in good faith, etc. The charge is an incorrect statement of the law, for Griffin could have known of the plaintiff’s adverse claim and yet could, in good faith, have supposed himself to be the true owner and have been ignorant of a better right in plaintiff.

Again, the refusal to give the charge could not have prejudiced plaintiff, in view of the fact that the case was decided against him on the issue of title.

The submission in the first special issue of the question of whether the plaintiff and those under whom he claimed occupied and held the land in suit for 10 consecutive years at any one time before the institution of this suit was not reversible error. True, under the facts proved, the court could have instructed the jury that he and they had occupied the land for 10 consecutive years before the filing of the suit, but the jury answered the question in the affirmative; hence the result to plaintiff is the same as if they had been instructed to so find. The question of such possession being adverse to the claim of the owner of the legal title was properly submitted to the jury in another special issue.

The eighth assignment in the brief is not only not a copy of the assignment found in the record, but is followed by a proposition not germane to it, and for both reasons it will not be considered.

The sixteenth assignment, complaining of the action of the court in permitting the defendant to introduce certain portions of the testimony of the plaintiff, J. O. Shipp, adduced on the former trial of this case, is overruled. There is nothing in the statement following the assignment to show what the testimony was, or what objection was urged to the introduction, and we cannot say, therefore, that the testimony was upon a material point, or pass upon its admissibility. Other assignments, not herein specifically referred to are not presented in the manner required by the rules, and for that reason we refuse to consider them. TV e have examined them, however, and are of the opinion that, should we consider them, we would be compelled to overrule them for the reason that none of them points out reversible error. We-find no reversible error in the record, and the judgment of the court below is therefore affirmed.

Affirmed.
      <§=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    TENNEGKEIT v. GALVESTON ELECTRIC CO.
    (No. 6895.)
    (Court of Civil Appeals of Texas. Galveston.
    Nov. 22, 1915.)
    1. Appeal and ERiror <&wkey;759 — Assignments oe Error — Requisites and Sueetciency— Motion eor New Trial.
    Under Rev. St. 1911, art. 1612, requiring that plaintiff in error file with the clerk of the court below all assignments of error distinctly specifying the grounds on which he relies, Court of Civil Appeals rule 29 (142 S. W. xii), requiring that the brief shall separately present each ground of error under the proper assignment, and rule 161a (159 S. W. xi), providing that where a motion for a new trial is filed the assignments contained in such motion shall constitute the assignments of error, assignments of error presented in the brief of plaintiff in error need not be considered, where they are not portions of or copied from the motion for new trial.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. § 3094; Dec. Dig. c&wkey;759.]
    2. Carriers <&wkey;34S — Injury to Street Cab Passenger — Instruction on Unavoidable Accident — Evidence.
    Where, in a street car passenger’s action for injuries from falling from the running board of a car, plaintiff’s testimony that his fall was due to the act of defendant’s conductor in attempting to pass between him and the side of the car was denied by the conductor, and by another witness who testified that the conductor was not near plaintiff, and also by a witness who testified that plaintiff lost his balance and fell while attempting to climb around other persons standing on the running board, an instruction that plaintiff could not recover if his injuries were caused by an unavoidable accident was authorized by the evidence.
    [Ed. Note. — Eor other cases, see Carriers, Cent. Dig. §§ 1403-1405; Dec. Dig. <&wkey;>348.]
    3. Appeal and Error <&wkey;1066 — Harmless Eirror — Instructions.
    Under Court of Civil Appeals rule 62a (149 S. W. x), providing that a judgment shall not be reversed for error not affecting the result, the giving of such instruction, even if it were not authorized by the evidence, would not require a reversal of a judgment for defendant.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. § 4220; Dec. Dig. <@=»1066.]
    4. Trial <&wkey;253 — Instructions — Ignoring Issues — Lack oe Evidence.
    Where, in a street car passenger’s action for injuries from- falling from the running board of a car, the only negligence as to which there was evidence was the act of the conductor in attempting to pass between him and the car, an instruction that plaintiff could not recover, unless he was thrown from the car by such act of the conductor, was not erroneous for failure to take into consideration defendant’s alleged negligence in failing to furnish plaintiff with a seat and permitting the running board to be overcrowded.
    [Ed. Note. — Eor other cases, see Trial, Cent. Dig. §§ 613-623; Dec. Dig. &wkey;253.]
    5. Carriers <&wkey;296 — Injury to Street Car Passenger — Actionable Negligence — Failure to Furnish Seats.
    The failure of a street car company to furnish a passenger with a seat in the car is not actionable negligence, where the fact that all the seats are occupied is apparent to the passenger when he takes his position on the running board, from which he thereafter falls.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1200-1203; Dec. Dig. &wkey;296.]
    6.Trial <&wkey;243 — Conelicting Instructions —Negligence.
    In a street car passenger’s action for injuries from falling from the running board of a car, an instruction to find for defendant if plaintiff’s injury was caused by unavoidable accident, or if defendant was not guilty of the negligence charged by plaintiff, was not in conflict with an instruction to find for defendant if plaintiff was contributorily negligent in attempting to pass around another passenger on the running board of the car.
    [Ed. Note. — For other cases, see Trial, Cent. Uig. §§ 564, 565; Dec. Dig. <&wkey;>243.]
    Error from District Court, Galveston County; Clay S. Briggs, Judge.
    Action by Fred Tennegkeit against the Galveston Electric Company. Judgment for defendant, and plaintiff brings error.
    Affirmed.
    Marsene Johnson, Elmo Johnson, and Boy Johnson, all of Galveston, for plaintiff in error. Terry, Cavin & Mills, of Galveston, for defendant in error.
   McMEANS, J.

Fred Tennegkeit, hereinafter called plaintiff, brought this suit against the Galveston Electric Company, a corporation operating an electric railroad in the city of Galveston, hereinafter called defendant, to recover damages for personal injuries sustained by him through the alleged negligence of the defendant.

Plaintiff alleged that on or about September 6, 1913, in the city of Galveston, he boarded one of the defendant’s street cars, paying the sum demanded by defendant for his passage thereon, and thereby became a passenger on said street car, and was entitled to a seat and passage to his destination; that the street car which plaintiff boarded was crowded, and plaintiff was unable to obtain a seat, and was permitted by the conductor on said car to stand upon the running board of the car until defendant’s conductor could procure him a seat, and believing that he could safely do so the plaintiff stood upon the running board, holding onto the post and other structures of the car for safety while he was riding thereon, and while the car was in motion; that while riding on said running board the defendant’s conductor came along on said running board and was collecting the fares from the several passengers on said car, and while plaintiff was holding onto the post and handhold of the car, and while the car was moving rapidly, the said conductor attempted to pass between the person of plaintiff and the car, thus forcing the plaintiff to lose his hold on the handhold and post, and causing him to fall to the ground while the car was moving; and that the force of the fall and the impact of plaintiff with the ground caused the plaintiff to sustain serious and permanent bodily injuries, causing plaintiff to be damaged in the sum of $5,000.

Plaintiff further alleged that the defendant was in duty bound to use the highest degree of care for Ms safety wMle lie was a passenger on said, car, and was in duty bound to provide a safe and comfortable seat for plaintiff, and the defendant wholly failed in all of these duties, and the defendant and its conductor was further negligent in attempting to squeeze by and pass between plaintiff’s body and the side of the car while the car was in motion, and in squeezing and forcing plaintiff off of said car; that the car was crowded, and the running board was also crowded, with passengers standing up and riding thereon at the time plaintiff fell from the car, and that the failure of the defendant to perform its duty to him in providing a seat was negligence, proximately causing his injuries; and that the acts and omissions of the defendant’s conductor at said time was negligence for which defendant is liable, and that all of said negligence was the proximate cause of the damages, injuries, and losses by plaintiff sustained.

Defendant, in addition to a general denial, pleaded that plaintiff was guilty of contributory negligence, in that, while riding upon the running board of the street car, he attempted to pass around and outside of another passenger, also riding upon the running board, and in doing so fell from the car.

A trial before a jury resulted in a verdict and judgment for the defendant, from which the plaintiff has appealed.

We are met in limine with an objection urged by the defendant to the consideration by this court of any of the assignments of error presented by plaintiff in his brief; the objection being that the assignments so presented are not portions of or copied from the plaintiff’s motion for a new trial. Plaintiff’s motion for a new trial covers 13 or more typewritten pages, while the three assignments of error presented in his brief would require very little more than half a page. While it is true that the language of each assignment may be found somewhere in the motion, there is lacking the requirements of the statute and rules which provide that all errors shall be distinctly specified therein. R. S. 1911, art. 1612; rules 29 (142 S. W. xii) and 101a (159 S. W. xi).

The article of the statute above referred to dispenses with the prior requirement that assignments of error shall be filed where a motion for a new trial has been filed, and provides that the assignments in the motion for a new trial shall constitute the assignments of errors, and need not be repeated by the filing of separate assignments of error, and also provides that all errors not distinctly specified shall be waived. But while the filing of separate assignments of error, where a motion for a new trial has been made, has been dispensed with, the rule requiring distinct specifications of error has not been relaxed; the only change in the law and the rules being that they must be made in the motion, where a motion for new trial is required or has been filed. The following cases bear upon the proper manner of making and presenting assignments of error to the appellate courts and may be read with profit: Horseman v. Coleman, 57 S. W. 304; Bowers v. Goats, 146 S. W. 1013; Biggs v. Lee, 147 S. W. 709; Lime & Stone Co. v. May, 150 S. W. 758; Fessenger v. El Paso Times Co., 154 S. W. 1171; Dees v. Thompson, 166 S. W. 57; Edwards v. Youngblood, 160 S. W. 288.

This court could well refuse to consider the assignments, because not presented in the manner and form required by the rules; but nevertheless we have considered them, and will now discuss them in the order in which they have been attempted to be presented. '

The first assignment complains of that portion of the court’s main charge to the jury which reads as follows:

“If you do not so believe from the evidence, or if you believe from the evidence that the injuries, if any, to plaintiff, were caused or occasioned by an unavoidable accident, without any negligence upon the part of the defendant, and without any negligence on the part of the plaintiff, as submitted, which contributed to the same * *

The objection to this charge is that there was no evidence adduced to authorize the submission of unavoidable accident. As before stated, the plaintiff alleged that he was injured by the act of the defendant’s conductor in attempting to pass between the person of the plaintiff and the side of the car while both were on the running board. Defendant pleaded that plaintiff was injured as a result of plaintiff’s contributory negligence in attempting to pass around and on the outside of another passenger while both were riding on the running board. The plaintiff testified that the accident happened as alleged by him, wMle this is denied by the conductor, and also by the witness Golden, who testified that the conductor was not near plaintiff at the time he fell, and .by the witness Willetts, who testified that plaintiff lost his balance and fell from the car while attempting to “climb around behind some other person that was standing on the running board of the ear,” and that when plaintiff fell .“neither the conductor nor any one else was trying to pass between him and the body of the car.”

We think that the court did not commit error, at least not prejudicial error, in giving the charge complained of. Obviously the jury found that plaintiff’s fall was not caused by the conductor crowding between him and the body of the car. If the jury found as a matter of fact that the plaintiff, while attempting to pass around another passenger on the running board, fell, but that he was not guilty of negligence in attempting to pass around the other passenger, and this issue was also submitted in the charge, then his fall and injuries could neither be attributed to the negligence of the defendant, nor the contributory negligence of the plain-till, but to an accident only. But, even if the issue of unavoidable accident was not raised by tire evidence, we are of the opinion that the plaintiff could not have been prejudiced by the giving of the charge complained of. Rule 62a (149 S. W. x) ; Railway v. Greenlee, 70 Tex. 561, 8 S. W. 129. The assignment is overruled.

The second assignment assails the following portion of the court’s charge:

“ * * * Or if you believe from, the evidence that the plaintiff assumed a position on the running board of the car without any direction or permission from the defendant’s conductor, and if you fail to find from the evidence that plaintiff was thrown from the car by the act of the conductor by pushing between plaintiff and the car, you will return a verdict for the defendant.”

The complaint directed at this part of the charge in effect is that, plaintiff having alleged several grounds of negligence on the part of the defendant as being the proximate cause of his injury, viz.: (1) The act of defendant’s conductor in attempting to pass between the plaintiff and the body of the car, whereby he was pushed from the running board; (2) the failure of defendant to furnish him a seat in the car; and (3) the permitting by the defendant of the running board to become overcrowded with passengers — the court should not have limited the inquiry to negligence of defendant first above stated, but should also have submitted as grounds for recovery the other acts of negligence charged.

The testimony of the plaintiff himself is to the effect that at the time he took passage on the car all the seats were filled and there were several passengers then riding upon the running board. The evidence justifies the conclusion that plaintiff 'rode upon the running board because there was not a vacant seat in the car. All of the seats being occupied when plaintiff took his position upon the running board, and this being then apparent to him, it was not actionable negligence upon the part of defendant to fail to furnish him a seat in the car. Again, it does not appear from the allegations of his petition that plaintiff’s injuries resulted from the failure of defendant to furnish him a seat in the car, or by reason of allowing the running board to become overcrowded, for it is expressly alleged that plaintiff’s injuries were brought about solely by the act of the conductor in attempting to pass between the plaintiff and the body of the car, and plaintiff himself testified that he was injured from this cause. There was no proof that plaintiff’s failure to procure a seat or the overcrowding of the running board even remotely occasioned his fall. It is clear therefore that the charge limiting recovery, as it did, to the very act of negligence which plaintiff alleged, and himself testified, caused his injuries, was proper, and it is equally clear that there was no error in failing, to submit the other grounds of negligence charged, because under the proof no issue is raised that such alleged negligence was the proximate cause of his injuries. Railway v. Carter, 98 Tex. 196, 82 S. W. 782, 107 Am. St. Rep. 626. The assignment is overruled.

There is no merit in the third assignment, which complains that the seventh and eighth paragraphs of the court’s charge are in conflict. The seventh instructs the jury that if they believe from the evidence that plaintiff’s injury was caused by unavoidable accident, or if they fail to find from the evidence that the defendant was guilty of the negligence charged by plaintiff to have been the cause of his injury, to find for the defendant, while the eighth merely submitted the issue of plaintiff’s contributory negligence, and instructs, if the jury find from the evidence that plaintiff was guilty of contributory negligence in attempting to pass around another passenger on the running board of the car, to find for defendant.

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

Affirmed.
      «S^sPor other cases see same topic ana KEY-NUMBER in all Key-Numbered. Digests and Indexes


author: PLEASANTS, O. J.

text:
    LUCAS et al. v. HARRISON et al.
    (No. 6970.)
    (Court of Civil Appeals of Texas. Galveston.
    Nov. 22, 1915.
    Rehearing Denied Dec. 16, 1915.)
    1. Justices oe the Peace &wkey;>44^~Jurisdiction — Amount Involved — Attorney's Pees.
    Where plaintiff in a suit brought on account in a justice’s court filed no written pleadings, and the citation asked judgment only “for the balance of the amount of the account due of 8188.08,” the amount involved was within the justice’s jurisdiction, though an entry in the justice’s docket read, “Suit upon account for 8188.68 * * * interest 6%. Attorney’s fees -%” — especially where the justice’s judgment did not include attorney’s fees and neither the court nor the parties considered the suit as involving a claim for attorney’s fees.
    LEd. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 157-172; Dec. Dig. <&wkey;44.]
    2. Appeal and Error <&wkey;1002 — Verdict — Evidence.
    A verdict on findings for plaintiff on each item of the account sued on will not be disturbed on appeal, where each finding is supported by evidence and the verdict is not so against the weight of evidence as to be clearly wrong, though the evidence is conflicting as to some of the items and as to some is apparently in favor of defendants.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dec. Dig. <&wkey; 1002.]
    Appeal from Fayette County Court; George Willrich, Judge.
    Action by C. P. Harrison against Chas. Lucas and others. From a judgment for plaintiff on appeal to the county court from a like judgment rendered in a justice’s court, tlie defendant named and another appeal.
    Affirmed.
    John T. Duncan, of La Grange, for appellants. O. D. Krause, of La Grange, for ap-pellees.
   PLEASANTS, O. J.

This suit was brought by appellee Harrison against appellants, composing the firm of Lucas & Meier, and appellee Woods, upon an account of Woods against appellants which plaintiff had purchased from Woods, who at the tune of said purchase guaranteed the payment of the account. The suit was brought in the justice court for precinct No. 1 of Payette county. Plaintiff filed no written pleadings. The entry upon the justice court docket showing the cause of action and the nature of defendants’ answers is as follows:

“Suit upon account for $188.68 of date 1908 & 1909 due-interest 6%. Attorney’s fees -%. Filed 9th day of Noy. A. D. 1909. Citation issued the 9th day of Nov. A. D. 1909. Returnable to Dec. term 1909, and placed in the hands of-returned-day of-A. D. 190 . Executed 10th day of November, A. D. 1909.
“Plea of personal privilege filed Dee. 9, 1909, by Chas. Lucas & H. Meier to be sued in the county & precinct of their residence. Plea overruled Dec. 18, 1909. Judgment for $188.68.”

Citation issued from the justice court thus states the cause of action:

“For debt due to plaintiff upon an open account due by said Lucas & Meier to C. F. Woods earned during the years of 1908 and 1909, which said account was transferred by said C. F. Woods to plaintiff and its payment guaranteed by the said Woods to plaintiff at Flatonia, Texas, for a valuable consideration, plaintiff asks judgment for the balance of the amount of the account due of $188.68 against Chas. Lucas and H. Meier jointly and severally as principal debtors and against C. F. Woods on his guaranty.”

The account was for commissions claimed to be due Woods on sales of monuments or tombstones sold, by him as agent of appellants. The transfer and guaranty of the account by Woods to plaintiff Harrison is as follows:

“I, C. F. Woods, do hereby transfer the attached account to C. F. Woods against Lucas & Meier of San Antonio, Tex., to C. P. Harrison for the sum of $188.68. And I also hereby guarantee the payment of said account to the said C. P. Harrison at Flatonia, Tex., should the said Lucas & Meier fail or refuse to pay the same. I also agree that should the said C. P. Harrison be compelled to institute suit to collect said account to pay all costs of collection, including 15 per cent, attorney’s fees. This 11th day of October, 1909.”

As above shown, judgment was rendered in the justice court against appellants on their plea of privilege and in favor of plaintiff Harrison against appellants • and Woods for the sum of $188.68, the amount claimed upon the account. Execution was ordered to be first issued against appellants, and against Woods only in event the judgment could not be collected by execution against appellants. Upon appeal and trial de novo with a jury in the county court a like judgment was rendered.

The evidence shows that appellants reside and have their place of business in Bexar county. The appellee Woods resides in Fay-ette county. Appellee Harrison purchased 'the account from Woods on the 11th day of October, 1909, for $165, of which amount he paid $25 in cash and gave his note for $140, due one day after date. It is not shown that this note has been paid in full, but Woods has an account with Harrison, who is a merchant, and owes him for goods purchased. No balance between this account and the note for $140 seems to have been made and the note is not shown to have been renewed. Both Woods and Harrison testified that the assignment of the account was made in good faith.

By their first assignment of error appellants complain of the refusal of the trial court to dismiss the suit on the ground that the amount in controversy was beyond the jurisdiction of the justice court. We do not think the trial court erred in holding that the amount in controversy was not in excess of $200 exclusive of interest, and therefore was not beyond the jurisdiction of the justice court. Appellants’ claim that the amount sued for exceeds $200 is based on the contention that the suit was for $188.68 and the attorney’s fees agreed to be paid by Woods in his contract of guaranty. We do not think the record shows that attorney’s fees were included in plaintiff’s demand. The citation, which in the absence of a written petition must be primarily looked to for a determination of what was the subject-matter of the suit, makes no mention of attorney’s fees and only asks judgment “for the balance of the amount of the account due of $188.68 against Ghas. Lucas and H. Meier jointly and severally as principal debtors and against O. F. Woods on his guaranty.” We think this language clearly restricts the amount asked against Woods on his guaranty to the stated amount of the balance due upon the account, and that plaintiff would not upon this citation have been entitled to a judgment against Woods for attorney’s fees. The fact that the justice’s docket, after the statement that plaintiff’s cause of action was a suit upon an account for $188.68 with interest, contains the words, “Attorney’s fees -%,” cannot be regarded as conclusive that the suit was for attorney’s fees in addition to the amount due upon the account and interest thereon, when the citation, as we have before shown, does not ask for the recovery of attorney’s fees. The record further shows that the judgment in the justice court did not include attorney’s fees, and that neither the court nor the parties to the suit considered that the suit involved a claim for attorney’s fees. Upon this state of the record, we do not think it can be held that attorney’s fees were included in plaintiff’s demand.

It would.serve no useful purpose to discuss the remaining assignments of error contained in appellants’ brief in detail.

There are no errors in the charge of which the appellants can complain, and the several special charges requested by appellants, in so far as they contained correct statements of the law applicable to the issues presented by the evidence, were included in the charge given by the court, and were therefore properly refused.

The evidence was conflicting as to several of the items of the account, and upon one or two of these items the preponderance of the evidence appears to us to have been in favor of appellants; but there is sufficient evidence to support the finding of the jury upon each of said items, and we cannot say that the verdict is so against the great weight and preponderance of the evidence as to be clearly wrong, and we are therefore not authorized to disturb it.

We are of the opinion that the judgment of the court below should be affirmed, and it has been so ordered.

Affirmed.

LANE, J., not sitting.
      ®^jFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes