author: LEVI’, J.

text:
    SAYE v. GARRARD.
    (No. 1965.)
    (Court of Civil Appeals of Texas. Texarkana.
    May 8, 1918.
    Rehearing Denied May 30, 1918.)
    1. Contracts <&wkey;116(l) — Legality — Contracts in Restraint of Trade.
    A contract whose main purpose, considered with circumstances and conditions giving rise to its execution, or whose necessary result was the establishing of a combination or trust, is •unenforceable.
    2. Contracts &wkey;>141(3) — Legality — Contracts in Restraint of Trade — Evidence.
    Evidence held to support finding that contract of sale of business and good will with agreement not to re-engage in the> same business in same town while purchaser was in that business therein was not illegal as a combination or trust.
    S. Good -Will <&wkey;7 — Sale—Bbeach—Meas-ure of Damages.
    Where defendant sold a business and good will with agreement not to re-engage in such business and broke the contract, buyer could recover profits of which he was thereby deprived upon evidence as to the amount of such profits.
    Appeal from District Court, Delta County; Wm. Pierson, Judge.
    Action by J. D. Garrard against Sam Saye. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    The action is by appellee against appellant for damages for the breach of a contract of sale of personal property, and for a restraining order. And in accordance with the special answers of the jury the court entered judgment for the appellee. The petition alleged that on the 15th day of October, 1915, the plaintiff, who was a furniture dealer, purchased of the defendant, also a furniture dealer, his entire stock of furniture and fixtures, with the provision in the contract of sale for the defendant’s influence and good will, and that the defendant would' not reengage in that business in Cooper, Tex., so long as the plaintiff was engaged in such business. The petition further alleged that the defendant violated his contract and resumed the business, to the plaintiff’s damage. The defendant answered by general denial, and specially that the plaintiff and Smith Bros., for the purpose of increasing the price of furniture in the town of Cooper, and in order to lessen competition in said town of Cooper, did act together and combine their capital for the purchase of the stock of furniture then owned by the defendant, and that by reason of the combination and acts upon the part of the plaintiff and Smith Bros, the contract entered into bétween plaintiff and defendant was contrary to public policy and inhibited by the anti-trust laws of Texas, and was therefore null and void.
    In the year 1915 there were three furniture stores in Cooper, a town of about 2,000 people. The three stores were separately and independently owned, respectively, by appellant, the appellee, and Smith Bros. On October 15, 1915, the appellant made a sale of his stock of furniture. According to the evidence of appellee, the appellant, Saye, came to his place of business and stated to him that he was losing money and had the blues and wanted to sell his stock and go out of business in Cooper. Appellee, as he says,
    “asked him what he would take for the stock, and he told me if I would take his fixtures, pay the rent on the building to January 1st, take the warehouse fixtures and the stock, he would take 75 cents on the dollar for everything. I told him if I could get Smith to take part of the stock off my hands I might take it off his hands. He said, ‘If you and Smith will buy me out — you buy me out — two furniture stores can make a little money here, but three can’t. So, if you fellows buy me out, I will never come back any more.’ I called Mr. Smith over the telephone that night, and told him the proposition, and he said he would see if he could get the money. The next week following I closed the deal with Mr. Saye and bought everything he had. After I bought Mr. Saye’s stock I sold Smith Bros. 40 per cent, of it. * * * I did not enter into any kind of secret agreement with Smith Bros, in the purchase of this stock of goods by reason of which we would fix the price of furniture. No effort was made then or at any other time between me and Smith to try to fix the price of furniture; the only understanding we had was in the presence of witnesses that he was to go over there and pick 40 per cent." of the stock at invoice price. Smith agreed to take off my hands 40 per cent, of the stock if I would allow him to pick what he wanted, and he did that. I paid Saye for the Vhole thing, and Smith paid me.”
    On cross-examination the appellee said:
    “It was agreed before I traded with Saye that Smith was to take part of the stock; and I would not have bought the stock if Mr. Smith had not agreed to take part of it. I wanted Saye out of business as bad as he wanted to go out. I wanted to lessen the number of furniture stores in Cooper. I wanted him out of competition with me and Smith Bros. It left me and Smith Bros, the only furniture dealers in Cooper. It would be a pretty good thing to lessen the number of stores in Cooper is the reason we bought him out. .Smith Bros, were to take part, .and I was to take part. The special cause and the controlling inducement in buying this stock was to get Mr. Saye out of business. I myself could handle all the furniture needed in this territory. I bought Saye out, made an invoice, and closed up the store he had been occupying. Smith took part of the goods and carried them down and mingled with his. He was doing business in a separate place from where I was. I took the part of the stock that remained and carried them to my store. I used the store Saye had occupied as a warehouse.”
    W. H. Smith testified:
    “During the fall of 1915 I bought a portion of the Saye stock from John Garrard. I had no kind of contract with Saye. At the time I bought a portion of that stock I didn’t even know what Garrard was going to pay Saye for the goods. As to how I came to be in negotiation about buying any of this stock of goods, Mr. Garrard mentioned the fact to me that if he bought it he wanted to know if I would take a certain per cent, of it. I never had any character of contract with Saye. There was not any conversation between me and Garrard relative to controlling the sale of furniture or fixing any price on goods in that line. * * * The stuff I bought I absolutely needed and would have had to have bought. I only bought what I needed, and didn’t take any stuff but what I did need and would have had to have bought anyway.”
    Appellant testified in respect to the contract:
    “Appellee said to me, ‘Xou wouldn’t sell that stock, would you?’ and I said, ‘Tes; I would sell.’ He said, ‘What will you take?’ and I said, ‘I will take six bits on the dollar for it.’ He says, ‘Well, I will see .Smith and see if he will take one-half of it, and if he will we will buy it.’ Tuesday evening he came over there and sat down in front of the store. Mr. Smith came walking across the way going home, and he called Smith over there and told him he would take it, and Smith says, ‘Well, we will come back after supper and put up a forfeit.’ We put up a forfeit. I did not say X would not go back in business. ⅜ * ⅜ On the purchase price Garrard issued me a check for $1,-900, and Smith’s check to Garrard was $2,347.-42, which Garrard indorsed and turned over to me. The stock invoiced between $5,700 and $5,800, and Mr. Garrard told me Mr. Smith was to take 40 or 45 per cent, of it.”
    The jury made the findings, which are here adopted: (1) That the plaintiff and I-Ierbert Smith did not jointly agree that the stock of furniture owned by appellant should be purchased by them, and did not agree that each would contribute to such purchase in order to prevent or lessen competition in the sale of furniture in Cooper; (2) that in the sale of the stock of furniture to plaintiff Garrard the appellant, as a .part of the contract and as an inducement to cause the plaintiff, Gar-rard, to buy the stock, agreed not to again enter into the business in Cooper; (3) that the defendant breached the contract by again entering into the business in Cooper; and (4) that the plaintiff sustained damages as a direct result of the breach in the sum of $250.
    James Patteson, of Cooper, and A. P. Park, of Paris, for appellant. Newman Phillips and C. O. McKinney, both of Cooper, for ap-pellee.
   LEVI’, J.

(after stating the facts as above).

The main purpose of the contract furnishes the standard by which the validity of agreements of the kind in suit may be determined, according to the tests laid down. Gates v. Hooper, 90 Tex. 563, 39 S. W. 1079. And if the contract, when considered in connection with the circumstances under which it was made and the conditions that give rise to its execution, is found to have the obvious purpose and necessary result of establishing a “combination” or “trust,” then the contract is unenforceable. Robinson v. Levermann, 175 S. W. 160. But if the contract, when considered in connection with the circumstances under which it was made and that give rise to its execution, be found to be one in which the real purpose is not to constitute the transaction a “combination” or “trust,” then the statute is not contravened. Malakoff Gin Co. v. Riddlesperger, 133 S. W. 519. And under the evidence in the instant case the real purpose of the sale and purchase is not, it is believed, so obvious and free of uncertainty as to justify the court in withdrawing the issue from 'the jury. For in one view of the evidence it may be said to appear in point of fact there was a “combination” or union within the meaning of the statute. But in another view of the evidence it may be said that the real intent and purpose of the plaintiff and Smith Bros, was for the plaintiff to purchase* the appellant’s stock and then resell a selected portion of it to Smith Bros. And since the jury, in their province, haye made a finding of fact, with evidence in the-record to support it, that the plaintiff and Herbert Smith did not jointly agree or combine to purchase the stock, the case of Gin Go., supra, jit is thought, ’ rules the case. The first, fourth, and fifth assignments of error are overruled.

If the appellant by breach of the alleged contract destroyed the profits which the evidence shows would probably have in some part accrued to the plaintiff from the contract, then the plaintiff in this case may recover such damages as the .jury may determine. Profits of which a person has been deprived by the fault of another may form a base for a claim of damages. Norris Lumber Co. v. Harris, 177 S. W. at page 517.

The judgment is affirmed.

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source: Caselaw Access Project

author: BUCK, J.

license: Public Domain

text:
    LILLARD MILLING CO. v. BROOKS & PEW.
    (No. 8890.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    May 25, 1918.)
    1. Trial <&wkey;253(10) — Instructions Ignoring Evidence— Sales — Acceptance.
    ■Instruction that, if seller of carload of flour sent bill of lading and draft to bank other than agreed on, causing delay in delivery and accrual of demffrrage, buyer could refuse to accept carload unless plaintiff paid demurrage was error, where there was evidence, ignored by such instruction, that buyer agreed to accept and pay demurrage upon a rebate in price per barrel.
    2. Trial <&wkey;213 — Instructions — Province of Court.
    It is the duty of the court to instruct the jury as to the law applicable to the facts.
    3. Trial <&wkey;337 — Instructions—Jury.
    It is the province of the jury to receive and follow instructions as to law applicable to the facts.
    4. Trial <&wkey;296(l) — Conflicting Instructions — Cure.
    The giving of a special charge which is antagonistic upon a material issue to some other portion of the charge is reversible error, although the instruction given in the other portion of the chai’ge is correct.
    Appeal from Wise County Court; J. W. Walker, Judge.
    Action by the Lillard Milling Company against Brooks & Few. Judgment for plaintiff in the justice court, and defendant appealed to county court. From the judgment of the county court giving him insufficient relief, plaintiff appeals.
    Reversed and remanded.
    R. E. Carswell, of Decatur, for appellant. McMurray & Gettys, of Decatur, for appellee.
   BUCK, J.

Appellant1 filed suit in the justice court of Wise county to recover a balance of $55, alleged to be due by defendants oh open account, and the further sum of $120.37, as damages for the breach of an alleged contract whereby appellees agreed to purchase from appellant a carload of mill products, which was shipped from Decatur to Jacksonville, Tex., and which appellees refused to accept and pay for, whereupon appellant caused said goods to be shipped to Decatur, and later resold. Tbe claim of $120.37 consisted of $40, alleged to have been paid for demurrage- accruing while the car was at Jacksonville, and $80.37 freight charges paid on shipment to Jacksonville and return. Defendant pleaded that, as a part of the contract between plaintiff and defendant, it was agreed that defendant should have the benefit of any decline in the market, and that defendant stipulated in the order for the goods, and which stipulation was accepted by plaintiff, that the bill of lading and attached draft should be sent to the Farmers’ Guaranty Bank of Jacksonville, for collection, arrangements having been made at that bank to take care of the same; and the plaintiff, ignoring said stipulation and in violation of its agreement, sent the bill of lading and draft to the First National Bank of said place; that said last-named bank did not notify defendants for some time that it had the bill of lading and draft, and that in the meantime considerable demurrage had accrued, which plaintiff declined to allow for, and that the market price of the flour had declined, and plaintiff refused to make the agreed reduction therefor; and that hence the defendants were justified in refusing to accept the shipment and paying therefor, under the circumstances pleaded. In the justice court judgment was rendered for plaintiff for the full amount claimed, but ox. appeal to the county court judgment was rendered for plaintiff for only the $55 item, with costs of appeal from the justice court and the costs in the county courjt taxed against the plaintiff. From this judgment plaintiff has appealed.

The first assignment complains of the giving of defendant’s specially requested charge as follows:

“If you find from the evidence that in making the agreement for the car bought by defendants from plaintiff January 13, 1916, it was part of the agreement that the bill of lading and draft should be sent to the Farmers’ Guaranty State Bank of Jacksonville, and that said bill of lading was sent to some other bank contrary to said agreement, and if you further find that by reason thei-eof the Car was delayed in being de-livei-ed to defendants and demuri-age thereby caused to accrue, you are insti-ucted that defendants were not responsible for such demur-rage, and had the right to decline to take said car of mill products, unless plaintiff arranged to relieve defendants of having to bear the expense of such demurrage.”

The objections to this charge, as shown by appellant’s bill, were:

“(1) That said charge unnecessarily repeats defendant’s defense that the draft was misrout-ed, and unduly emphasizes before the jury such defense, and is calculated to induce the jury to believe that the court thought such defense was established; (2) because said charge ignored the agreement pleaded by plaintiff and testified to by witness Lillard, made over the phone with defendant Brooks, wherein it is contended by plaintiff that Brooks agreed, in consideration of rebating the price 20 cents per barrel, to pay said demurrage and accept the caí-, and authorized the jury to find for the defendant, notwithstanding such agreement; (3) because such charge is in conflict with special charge No. 1, given -at the instance of plaintiff, and special charge No. 1, given at the instance of defendant.”

Tbe special charge given at the instance of the defendants, referred to in these objections, is as follows:

“If you find from the evidence that according to the agreement between the parties as to the purchase of the ear of mill products sold by plaintiff to defendants on January 13, 1916, the bill of lading was to be sent to the Farmers' Guaranty State Bank of Jacksonville, and that said bill of lading was in fact sent to another bank contrary to said agreement, and the delivery of the ear to defendants was thereby delayed and demurrage thereby caused to accrue thereon, and the market price of said mill products declined during such time, and if you further find that defendant Bi-ooks offered to accept and pay for said car of products if plaintiff would make allowance for the decline in the market price of said products and pay the de-murrage, and that plaintiff failed to make allowance and pay said demurrage, but instead thereof directed the return of said car to Decatux-, you are instructed that in such event defendants are not liable for anything on account of not receiving said car.”

The special charge given at the instance of plaintiff, also referred to, is as follows:

“If you find and believe from the evidence that after the draft and bill of lading became accessible to defendants, and after they could have gotten possession of the same they agreed with plaintiff to pay for and accept the car of mill pi-oducts and pay the demurrage if plaintiff would x-ebate the price 20 cents per barrel, and plaintiff accepted said offer and rebated the price accordingly and that defendants thereafter x-efused to accept said mill products and pay fox-same, and plaintiff was tkei*eby forced to take charge of the same, and did take charge of same and resell it, defendants would be liable for the items of freight and demurrage, if you find that it paid the same, and that it was necessary for it to pay the same in order to be able to resume possession of said car of mill products for the purpose of reselling the same, and that said freight and demurrage charges wei-e proper and reasonable charges against said car.”

In addition the court in his main charge instructed the jury as follows:

“As to the item of demui-i-age claimed by plaintiff, defendants would not be responsible for so much of same, if any, that accrued upon said car before defendants could have obtained possession .of same and unload said cax-, if such delay was occasioned by the failure, if any, of plaintiff to have the draft with bill of lading sent to the Farmers’ Guaranty Bank for collection if you further find and believe from the evidence that the failui-e of defendants to accept said car and pay for the same was ocea-. sioned by such failure of plaintiff to have said dx-aft and bill of lading sent to said bank.
“If you believe from the evidence that it was agreed by and between plaintiff' and defendants, or that it was the general custom of the trade, that defendants were to be allowed in discount the decline, if any, in the price of such mill products occurring between the date of sale and the date when the bill of lading became so accessible to defendants that they could have reasonably obtained the same and accepted and received said carload of mill products, and if you believe there vas such a decline, and that plaintiff i-efused to allow defendants the amount of such decline, then you will find that the plaintiff is not entitled to recover herein on account of said items of freight and said demui-rage.”

The first proposition under this asssignment is that said charge unduly and unnecessarily emphasizes the 'defense set up by defendants that the bill of lading and attached draft was sent to the wrong bank, and that the unnecessary repetition was calculated to cause the jury to believe that this was “an important defense.”

We are not entirely agreed as to the tenability of the contention made in the first proposition under this assignment/ The writer is inclined to the opinion that the proposition presents error. M., K. & T. Ry. Co. of Texas v. Dunbar, 49 Tex. Civ. App. 12, 108 S. W. 500; Pettithory v. Clarke & Courts, 139 S. W. 989; Redmond v. Cotton Mills, 100 S. W. 186. But in this connection see Traylor v. Townsend, 61 Tex. 144; Ratto et al. v. Bluestein, 84 Tex. 57, 19 S. W. 338; Continental Ins. Co. v. Pruitt, 65 Tex. 125. But Justice Dunklin is of the opinion that, even though it may be admitted that said charge unnecessarily repeats the defense urged by defendants, yet it does not appear that such repetition was reasonably calculated to injure the plaintiff as there was no conflict of evidence as to the fact that plaintiff did send the bill of lading and draft to a bank other than that stipulated by defendants. But we both agree that under the second proposition prejudicial error is shown, which proposition is to the effect that the charge is erroneous and misleading because it ignores the agreement testified to by the witness Dillard, made over the phone with defendant Brooks. S. A. Dillard, manager of plaintiff, testified that, after shipping the car and drawing the draft on February 19, 1916, he received from defendants a letter informing the plaintiff that the draft had not reached the Farmers’ Guaranty. Bank, whereupon he instructed the Decatur Bank to have the draft placed in the Guaranty Bank of Jacksonville; that further negotiations were then had between Brooks and Dillard, and that Brooks finally- agreed to take the shipment at a reduction of 20 cents on the barrel, and also to pay the de-murrage; that defendants, wholly ignored this agreement, and failed to communicate any further with plaintiff, and the plaintiff was thereupon forced to have the car rebilled to Decatur and pay the freight both ways and the demurrage. This particular defect of omission is shown to have been called to the court’s attention before the charge was given. In this respect the charge given at the instance of plaintiff, heretofore set out, and the charge given at the instance of defendants, and of which complaint is made, are in direct conflict and we think that such conflicting! instructions were reasonably calculated to and probably did mislead the jury. This conclusion of probable prejudicial error is supported by the-fact that there is considerable evidence tending to show that the real reason defendants did not accept and unload the car upon its arrival at Jacksonville was that the defendants did not have room in which to store the flour, and preferred to pay demurrage. The railway agent and the cashier both testified to the fact that one of the defendants, Mr. Brooks, was in the freight office of the International & Great Northern Railway Company the day the car arrived, and asked that it be allowed to remain on the track till he could arrange for a place in which to store the shipment. Again he was notified by the agent of the railway company, and again did he request time for the same reason given.

It is no answer to the claim that a special charge given is erroneous or defective to say that in some other portion of the court’s charge the correct instruction was given. Juries are not presumed to be composed of men trained in the law. It is the duty and the province of the court to instruct them as to the law applicable to the facts, and it is the duty of the jury to receive and follow such instruction. Where one charge conflicts with another they nullify and neutralize each other, and leave the jury without any rules of law by which to determine the rights of the parties, and such antagonistic instructions when upon a material issue are grounds for reversal. Tex. R. Co. v. Hooten, 21 Tex. Civ. App. 139, 50 S. W. 499; Railway Co. v. Beard, 34 Tex. Civ. App. 188, 78 S. W. 253; Baker v. Ashe, 80 Tex. 356, 16 S. W. 36; Belt v. Raguet, 27 Tex. 471; S. K. Ry. Co. v. Sage, 98 Tex. 438, 84 S. W. 814.

The other assignment complains that the verdict of the jury is against the great preponderance of the evidence, and without sufficient testimony to support it. As the evidence may be different upon another trial, we do not deem it incumbent upon us to determine the question as to whether the evidence so strongly preponderates in favor of plaintiff’s right to recover for the alleged breach as to indicate that the jury must have been influenced by bias or some other improper motive to render the verdict returned. But the state of evidence does not fortify our conclusion that reversible error was committed in the giving of the special charge of which complaint is made in the first assignment.

For the reasons given, the judgment is reversed and the cause remanded.

Reversed and remanded.

CONNER, C. J., not sitting, serving on writ of error committee at Austin.
      (&wkey;Fo'r other cases see sama topic and' KEY-NUMBER in ail Key-Numbered Digests and -Indexes


author: FLY, O. J.

text:
    RICHARDSON et al. v. NESBIT.
    (No. 6044.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 29, 1918.
    Rehearing Denied June 19, 1918.)
    1. COMPROMISE AND SETTLEMENT &wkey;>12— CONSTRUCTION — 'Release—N ote.
    In a suit on note of an intestate, a compromise agreement between, intestate and a syndicate composed of plaintiff and others releasing all claims or demands of every kind or character for property, debt, or damages was broad enough to embrace the note in suit.
    2. Compromise and Settlement <&wkey;12~Con-struction — Particular S.nd General Words — Rule op “Ejusdem Generis.”
    Where the descriptive words of a release pleaded by defendant executors in a suit upon a note exhausted claims arising upon a contract, the rule of ejusdem generis did not apply to the release of all claims and demands of every kind and character against the estate of the deceased maker of the note; the rule of ejusdem generis not being in and of itself a rule of interpretation, but an aid to interpretation when the intention is not otherwise apparent, and, as applied to the construction of instruments, being that, where general words follow an enumeration of persons or things by words of a particular and specific meaning, such general words are not to be construed in their widest extent, but are to be construed as applying only to the persons or things of the same general kind or class as thus specifically mentioned.
    [Ed. Note.- — For other definitions, see Words and Phrases, First and ¡Second iSeries, Ejusdem Generis.]
    8. Contracts <&wkey;156 — Construction—Ejus-dem Generis.
    Where the particular words exhaust the class, the general words must be construed as embracing something outside the class, as there is nothing ejusdem generis left.
    4. Compromise and Settlement &wkey;>22 — Supplemental Petition — Demurrer.
    In a suit on a note wherein defendants pleaded a release to cover the note, plaintiff’s supplemental petition pleading that the contract mentioned in the release, if construed as embracing other claims, did not express the intention of the parties, without showing whether that arose from the scrivener’s failure to properly draw the release or from the releasees’ fraud or from mutual mistake presented no defense, and was open to a general demurrer.
    Appeal from District Court, Dimmit County ; J. F. Mullally, Judge.
    Action by Z. T. Nesbit against Mary I. Richardson, executrix, and Dittleton V. Richardson, executor, of Asher Richardson, deceased. Judgment for plaintiff and defendants appeal.
    Reversed, and cause remanded.
    Yandervoort & Johnson, of Carrizo Springs, for appellants. Ward & Bickett, of San Antonio, for appellee.
   FLY, O. J.

This is a suit by appellee on a promissory note executed by Asher Richardson, payable to appellee, against Mary I. Richardson, executrix, and Littleton V. Richardson, executor, of the estate of Asher Richardson, deceased, it being alleged that the note had been duly executed on March 6, 1912, by Asher Richardson for the sum of $2,700, due 60 days after date, there being no direct allegation in the petition of the death of said Richardson; that on February 28, 1916, the claim, evidenced by the note and verified, was presented to appellants for allowance or rejection, and appellants tools no action, but refused so to do. Appellants pleaded, in answer, a certain instrument made by appellee and a number of others, by which they conveyed a number of tracts of land and other property to appellants in consideration of the sum of $87,500, and in said instrument the following statement and agreement was inserted:

“And we also hereby transfer, assign, and release to Mary I. Richardson and Littleton Y. Richardson, as independent executors of the estate of Asher Richardson, deceased, all claims or demands of every kind or character for property, debt, or damages which we now have or which may hereafter accrue to us, whether known or unknown to us against the estate of Asher Richardson, deceased, growing out of or based upon the contract of March 2], 1908, or the various extensions and modifications thereof between Asher Richardson and W. A. H. Miller, both deceased, or otherwise, it being the intention of the parties to this instrument to make it a full and complete accord and satisfaction by compromise and settlement of all differences, controversies, debts, claims, and causes of action of every kind or character now existing or that may thereafter accrue in favor of either party against the other, jointly or severally, with reference to the property, real, personal or mixed, covered by said contract and its extensions and modifications or other contracts or obligations, whether in writing or not, now existing between us and of all other claims or demands of every kind or character of the parties to this instrument by or against the estate of Asher Richardson, deceased, except, however, the notes given by the individuals herein in part purchase of some of the lands covered by said contract, which notes are not to be affected by this instrument, but are to remain valid obligations in the hands of the holders thereof against the parties executing said notes.”

Appellee filed a supplemental petition which, in its second paragraph, sought to construe that part of the release executed by a number of parties, appellee being one of them, to appellants, and an exception was sustained to that paragraph. In the third paragraph appellee averred that:

“Said instrument does not express the true intent and agreement of the parties thereto, in that it was then and there intended by all of the parties to said agreement and their respective attorneys that the scope of said compromise and settlement agreement should extend only to the then existing and future claims of plaintiff and associates against the estate of Asher Richardson, deceased, arising out of said contract of March 21, 1908, its subsequent extensions and modifications, and none other.”

There was no allegation of fraud upon the part of appellants to induce appellee to sign the release. The court tried the cause without a jury, and rendered judgment in favor of appellee for the amount of the note, interest, attorney’s fees, and costs.

The evidence showed that'the suit was upon a promissory note executed by Asher Richardson, who afterwards died; and appellants were appointed to administer his estate under Ms will. Tliere was no contest as to the due execution of the note; the sole contention being that the note was included in the settlement of a certain suit as evidenced by the release hereinbefore mentioned. The suit was then pending in a district court of Bexar county, and grew out of a contract executed by Asher Richardson, on the one part, and W. A. H. Miller for himself and a certain syndicate composed of appellee and others, on the other part. Being desirous of selling the lands involved in the contract aforesaid to a certain other syndicate, appellants offered a compromise which was accepted by appellee and the other parties, and the release and contract from which the quotation hereinbefore set out was taken was duly drawn and executed by appellee and those associated with him. Appellants contend that the note upon wMch appeilee sued was included within the plain terms of the compromise by reason of the words “and of all other claims or demands of every kind or character of the parties to this instrument by or against the estate of Asher Richardson, deceased.” Appellee claims that it was not the intention of the parties to include his note in the release and compromise agreement. Appellee also contends that the doctrine of ejusdem generis applies, and that the language quoted meant only such claims or demands as grew out of the contract between Richardson and Miller.

The words of the compromise agreement are plain and unambiguous, and the language broadly describes the subject of compromise as “all other claims or demands of every kind or character of the parties to this instrument by or against the estate of Asher Richardson, deceased.” The words could not have been made plainer or more comprehensive, and are undoubtedly broad enough to embrace the note forming the basis of this suit. The rule of ejusdem generis cannot be applied to the words quoted. That rule is applied to the construction of statutes, wills, and other instruments, and is that, where general words follow an enumeration of persons or things by words of a particular and specific meaning, such general words are not to be construed in their widest extent, but are to be held as applying only to persons or things of the same general kind or class as those specifically mentioned. In this ease, however, the words are too plain, precise, and specific to be called general, or the objects described to be construed to be of the same kind or class as those mentioned in connection with the Riehardson-Miller contract. The language is as explicit and specific as that used in describing the claims arising out of the contract. The first are described as “all claims or demands of every kind or character for property, debt, or damages which we now have or which may hereafter accrue to us, whether known or unknown to us, against the estate of Asher Richardson, deceased, growing out of or based upon the contract of March 21,1908.” This is followed by other specific words covering everything that could arise from that contract, and it is clear that no other words were necessary to describe those claims and the words “all claims or demands of every kind or character of the parties to this instrument by and against the estate of Asher Richardson, deceased,” must necessarily have been used to describe all claims not embraced in or arising from the contract described. The language, read in the light of what precedes it, cannot be distorted into describing sometMng else already fully described.

“The rule of ejusdem generis is not in and of itself a rule of interpretation, but an aid to interpretation, when the intention is not otherwise apparent. It has no binding force in the construction of a contract when it is clear that a larger object was in the minds of the pai'ties to which the more general phrases can distinctly apply.” Elliott on Contracts, § 1582. *

The descriptive words used in connection with claims arising from the Riehardson-Miller contract exhausted that class, and it would have been unreasonable to give another description which described something else accurately. As said in the Missouri case of National Bank v. Estate of Ripley, 161 Mo. 126, 61 S. W. 587:

“Therefore, where the particular words exhaust the class, the general words must be construed as embracing something outside of that class. If the particular words exhaust the genus, there is nothing ejusdem generis left; and in such case we must give the general words a meaning outside of the class indicated by the particular words, or we must say they are meaningless, and thereby sacrifice the general to preserve the particular words. In that case the rule would defeat its own purpose.”

To the same effect are United States v. Mescall, 215 U. S. 26, 30 Sup. Ct. 19, 54 L. Ed. 77; Strange v. Grant County, 173 Ind. 640, 91 N. E. 242; Hoffman v. Light Co., 134 Wis. 603, 115 N. W. 385.

This question is attempted to be raised by the first assignment of error, which attacks the third paragraph, in which it was alleged that the contract had been construed by appellee and his attorney that the release did not embrace the note of appellee. While that assignment is in violation of the rules, a question arises which goes to the very foundation of the action, and for that reason, and others which will be stated in the further course of this opinion, this matter has been considered by this court.

To meet the language of the release and compromise contract, appellant sought, in the third paragraph of the supplemental petition, to plead that the contract, if construed as embracing other claims than those arising from the Riehardson-Miller contract, did express the intention of the parties, but whether this arose from the failure of the scrivener to properly draw the release, from fraud on the part of appellants, or from mutual mistake is not pleaded. In fact, nothing is pleaded that would avoid the contract. The paragraph states no defense and was open to general demurrer.

The court must necessarily have found for appellee on the ground that the release did not embrace appellee’s claim or that the evidence showed mutual mistake. Neither is tenable. The evidence utterly fails to show that there was a mutual mistake as to what was covered by the release. Evidence that the attorneys of appellee told him that the release did not affect his claim did not tend to show any mistake except upon their part, and did not offer anything against the fairness of the release. If, before appellee signed the note, either appellants or their attorney had misled appellee as to the import and scope of the release, a different case would be presented, but nothing of the sort was pleaded or proved. No evidence offered or received tended in the least to render invalid that part of the release which clearly included the claim of appellee.

We think the eleventh assignment of error is sufficient to raise the question of the sufficiency of the facts to sustain the judgment. The other assignments are not in such shape as to be considered or are immaterial and unimportant.

We are at a loss to know upon what ground the court decided in favor of appellee, whether upon the construction of the release, or upon the question of mistake, and as the ease is perhaps capable of further investigation, and it might be an injustice to appellee to render judgment in a case where the trial court held with him, judgment will not be rendered here, but the opportunity for another trial given.

The judgment is reversed, and the cause remanded.

      fc=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DUNKLIN, J.

text:
    GULF, C. & S. F. RY. CO. v. DRENNAN.
    (No. 8873.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    May 25, 1918.
    Rehearing Denied June 29, 1918.)
    1. Master and Servant <§=>111(1) — Injury to Employé — Sate Place to Work.
    The rule requiring master to furnish servant safe place in which to work does not apply to work in a box car unloading lumber therefrom, it being unreasonable to expect master to inspect every car of lumber before the unloading thereof.
    2. Master and Servant <©=>129 (6) — Injury to Employé — Railroads — Proximate Cause.
    Where, in process of switching, string of cars is bumped against lumber box car changing position of lumber, injury to employé falling into open space formed by the lumber sliding is not proximately caused by the negligent bumping.
    3. Commerce <®=o27(5) — “Interstate Commerce” — Railroad Employé.
    Where lumber is loaded in a box car in one state and is shipped to another state to be used in the manufacture of doors for grain cars designed for the handling of interstate shipments of grain, an employé who unloaded the lumber in the latter state is engaged in. “interstate commerce.”
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Interstate Commerce.]
    4. Master and Servant <©=>228(1) — Injury to Servant — Interstate Commerce — Assumed Risk.
    In action governed by federal Employers’ liability Act for injury to railroad employé engaged in interstate eommerlce, railroad can invoke defense of assumed risk.
    5. Master and Servant <©=>217(20) — Injury to Servant — Assumed Rjsk.
    Where railroad employé, after seeing a box car containing lumber jammed and jarred by other cars, proceeds to unload lumber and is injured by falling into open space over which lumber had slid because of impact, he cannot recover for injury, having assumed risk of working in the car after the jarring of the lumber.
    Appeal from District Court, Johnson County ; O. L. Lockett, Judge.
    Action by Geo. W. Drennan against the Gulf, Colorado & Santa FS Railway Company. Judgment for plaintiff, and defendant appeals.
    Reversed, and judgment rendered for defendant.
    Lee, Lomax & Smith, of Ft. Worth, and Brown & Lockett, of Cleburne, for appellant. Walker <& Baker, of Cleburne, for appellee.
   DUNKLIN, J.

G. W. Drennan was engaged by the Gulf, Colorado & Santa Fé Railway Company as a workman in its shops in the town of Cleburne. The department of the shops in which Drennan was engaged was known as the “grain door department,” in which doors were manufactured for cars in which grain was shipped; the doors being designed for the purpose of preventing the leakage of grain from the cars. Lumber used in manufacturing such doors was shipped in on the defendant’s ears to a point near the shops, and one. of Drennan’s duties was to assist in unloading the lumber therefrom and carrying it to the shops. While so employed, a car of lumber was switched onto the side track. The car was a box car, and all the lumber in it was piled lengthwise except one tier opposite the doorway at the side of the car was piled crosswise the car. On the morning of the date of the accident hereinafter mentioned, Drennan and his fellow workmen unloaded a pile of 22-inch pieces from the north end of the car leaving the crosswise tier and the remainder of the lumber in the north end of the car about waist high. When work was resumed in the afternoon, Drennan got on top of the tier at the door and walked towards the north end of the car, and, after taking up an armful of short pieces, he started to return to the door by walking on top of the lumber. Before reaching the door, a piece of lumber upon which he stepped gave way and caused him to fall into a hole or space between the tier of lumber lying crosswise at the door and the ends of the lumber next thereto loaded lengthwise the car and over which Drennan had walked. As a result of that fall, Dren-nan sustained an injury, and he instituted this suit against the railway company to recover damages therefor. A trial before a jury resulted in a verdict and judgment in plaintiff’s favor for the sum of $1,700, from which the railway company has prosecuted this appeal.

Immediately preceding Drennan’s entry into the car when he resumed work in the afternoon, a string of other cars, while being switched, were jammed against the car of lumber in such a manner as to cause the top-most pieces of lumber piled lengthwise the ear, and upon which plaintiff had walked prior to the noon hour, to skid or slide in such manner that, while one end thereof rested upon that pile of lumber, the other rested upon the tier running crosswise the car op? posite the door; and this is the lumber which spanned the space or hole into which plaintiff fell and which gave way with him when he stepped upon it.

In plaintiff’s petition it was alleged that the operatives of the locomotive handling the other cars .on the occasion in controversy were guilty of negligence in bumping them against the car of lumber in such a violent manner as to cause the disarrangement and change of positions of the lumber in the car in the manner above mentioned, and thereby to conceal from plaintiff's view the open space between the piles of lumber. That issue of negligence was the only issue of negligence submitted to the jury as a basis for the verdict in plaintiff’s favor.

The defendant requested the court to instruct a verdict in its favor and reserved a bill of exception to the refusal of the court so to do, and also reserved an exception to the charge given by the court; and those exceptions to such rulings of the court are presented in different assignments of error. By those assignments and propositions thereunder appellant insists that the evidence introduced to establish negligence on the part of the defendant was insufficient to support a recovery.

The principal theory upon which plaintiff sought a recovery was that the defendant had failed in its legal duty to exercise ordinary care to furnish him a reasonably safe place to work; although in his pleadings he did not limit his right to recover to that particular theory, but claimed liability of the defendant at all events by reason of the negligence alleged.

The proof shows that, immediately after-beginning work in the afternoon on the date of the accident, plaintiff resumed the work of unloading the car in obedience to instructions from his foreman; but the foreman was not present at the time, and there was no proof that he knew of the bumping of the ear on that particular occasion. The proof shows further that, at the time the car of lumber was bumped into by the other cars, plaintiff was standing by the track and saw it, and according to his own testimony he appreciated the force of the impact, and immediately thereafter entered the car voluntarily and without any further instructions from any one so to do. Plaintiff further testified as follows:

“I saw the engine when it coupled onto this string- of cars. I was near the north end of the switch track right close to the car, just far enough to he out of danger. I was waiting for it to switch back in so we could unload the car. The engine backed in there and coupled onto the cars, and shook them up a right smart. Some lumber was piled up against the car on the north end. When it bumped into that car, it knocked it all down.
‘*1 had been unloading lumber in the grain door department about three months at the time of this accident. It was customary for them to switch cars there; they did it every day, nearly every day. I had seen them going in and out before. They handled these cars rough with the engine. I don’t know that they did that all the time, but they did some of the time. I mean by that, that they bumped into them hard when they would go to couple on. That day they coupled onto them and hit them hard, and at other times they would hit them easy and not very hard, and when they hit them easy it did not have any effect on the cars at all and would not knock them back as on this day. * * * Up here at the shops we would ordinarily unload about two cars a day. There was supposed to be eight men, four on each car. Sometimes we would unload more cars than that, and sometimes not so many. When a car would come in there to be unloaded, the foreman would direct us to unload it. He would tell us to unload it. That is all the instructions we needed. Xes, sometimes the foreman would get up- in the car and look around before we unloaded it, but we did not expect him to do that. All that was required of me was to unload the car.
“The place where I fell was located right north of the door on the west side of the car. When I went into the car and went towards the north end, I do not know over which part of the car I walked. As I went to get this load of lumber, there was nothing in the car or about the car where I was walking on the west side to attract my attention as being unusual. As I came back across with this load of lumber, the lumber upon which I was walking gave way. There was a hole or vacant place that was covered up, and when I stepped on this lumber it slipped into the hoie or vacant place and the lumber kicked up behind me and' I fell. * * * Q. When you first got in this car, Mr. Drennan, on the west side, and started up here where you got this lumber, did you look to see where you stepped as you stepped? A. Well, I looked between there. I looked down as I always do. * * * I was watching just where I was going. I have seen lumber shifted in the cars several times. I have seen holes or vacant places in the car. I have seen it where the car of lumber had shifted some. I have seen the switching of lumber make vacant places in it. I have seen it make vacant places. If the lumber was put in the car and tied all the way, it would not shift as this lumber did; but, when you take out some and they hit it hard enough, it will shift it. They hit it hard enough this time. I have seen ears of lumber with holes in them before. I have seen vacant places in cars of lumber. I never made any complaint about bumping the cars and making holes in the lumber ; that was not my business, not my duty.”

The evidence sho.ws further that in the switching and coupling of cars it is practically impossible to avoid striking them with more force than necessary in some instances. In order to conclude that the act of bumping the car in question in the manner in ■which it was struck by the other cars was negligence warranting a recovery by plaintiff for the injuries he sustained, then it must he said that a person of ordinary prudence situated as were the operatives of the locomotive, and with knowledge that the car of lumber was about to be unloaded in the manner it was unloaded, would reasonably have anticipated some like injury as a result of such jolting of the car, and would have avoided so striking the car for that reason.

According to plaintiff’s testimony, if the hole or space had not been covered by the sliding top pieces of lumber, he would not have fallen therein. There is no proof that, as a result of switching, the lumber in such cars had previously so slidden as to cover the spaces between the tiers in such a manner that' they could not be seen by persons unloading lumber while exercising ordinary care for their safety. The injury was due to one of the .transitory changes in the handling of the lumber, and the general rule requiring the master to furnish the servant a safe place to work was not applicable, since it would be entirely unreasonable to say that the master owed plaintiff the duty to inspect each car of lumber before he undertook to unload it in order to avoid injury to him from such causes as those. Armour v. Dumas, 43 Tex. Civ. App. 36, 95 S. W. 710, and authorities cited.

In view of all the facts and circum-' stances in evidence, we are of the opinion that plaintiff’s injury, or an injury of like kind under like circumstances, could not reasonably have been foreseen as a probable consequence of the act of the operatives of the locomotive in striking the car of lumber with other ears in the manner in which it was struck; and that their act in so doing cannot, as a matter of law, be considered such a failure on the part of the defendant to exercise ordinary care for plaintiff’s safety as to warrant a recovery in his favor. T. & P. Ry. Co. v. Bigham, 90 Tex. 223, 38 S. W. 162; Seale v. Railway Co., 65 Tex. 274, 57 Am. Rep. 602.

Furthermore, the proof shows without controversy that in unloading the lumber plaintiff was engaged in a duty pertaining to interstate commerce, since the car had been loaded in another state and the lumber shipped from that state to Oleburne for the defendant’s use in manufacturing doors for grain cars which were designed for use in handling both interstate and intrastate shipments of grain. Under such circumstances, the law of assumed risks invoked by defendant is applicable. Illinois Central Ry. Co. v. Porter, 207 Fed. 311, 125 C. C. A. 55; Grow v. O. S. L. R. Co., 44 Utah, 160, 138 Pac. 398, Ann. Cas. 1915B, 481; Pedersen v. Delaware, Lackawanna & Western Ry. Co., 229 U. S. 146, 33 Sup. Ct. 648, 57 L. Ed. 1125, Ann. Cas. 1914C, 153; St. Louis S. W. Ry. Co. v. Seale, 229 U. S. 156, 33 Sup. Ct. 651, 57 L. Ed. 1129, Ann. Cas. 1914C, 156; Freeman v. Powell, 144 S. W. 1033.

According.to plaintiff’s own testimony copied above, he by actual experience knew the effect upon a car of lumber which might reasonably be expected as a result of the car being struck by another car. He knew this as well as any other employs of the defendant. If the defendant should have foreseen that the top pieces of lumber would so skid as to cover up some of the spaces between the piles of lumber, then he should have foreseen the same results, since he stood by and saw the car when it was struck and realized that it was struck with considerable force. According to his own testimony, the foreman was not expected to inspect the lumber to see whether or not it could be unloaded with safety to the persons engaged in that work. After seeing the car struck and realizing the force of the impact, he began to unload the lumber, and in so doing he assumed the risk of the particular danger that he encountered. Ft. Worth Stockyards Co. v. Whittenburg, 34 Tex. Civ. App. 163, 78 S. W. 363; Dallas Gas Co. v. Patton, 147 S. W. 313; Tex. & Pac. R. Co. v. Lewis, 133 S. W. 1086; T. & P. Ry. Co. v. Hemphill, 38 Tex. Civ. App. 435, 86 S. W. 350.

For the reasons indicated, the judgment is reversed, and judgment is here rendered in favor of the appellant.

CONNER, C. J., not sitting, serving on writ of error committee at Austin.
      <§^For other cases see same topic ana KEY-NUMBER in all Key-Numberea Digests ana Inaexes


author: BROOKE, J.

text:
    GULF, C. & S. F. RY. CO. v. GROSS.
    (No. 373.)
    (Court of Civil Appeals of Texas. Beaumont.
    May 29, 1918.
    Rehearing Denied June 19, 1918.)
    1. Carriers 3=213 — Shipments op Live Stock — Excuse por Delay.
    Where the carrier knows, when cattle are received for shipment, that a washout exists on its line, but fails to advise the shipper or stipulate against the consequences thereof, but promises prompt shipment, the carrier is not excused from liability for delay caused by the washout as an unavoidable casualty or act of God.
    2. Carriers 3=212 — Shipment op Live Stock — Delivery.
    The arrival of train carrying a shipment of live stock, in the switching yards of the carrier three or four miles from the stockyards which is the destination of the shipment, is not a delivery completing the shipment.
    3. Trial 3=5251(3) — Instructions—Issues.
    In action for delay in live stock shipment, where, under the issues submitted, no damage arising after the delivery of the shipment to certain stockyards, which was the destination called for, could have been considered by the jury, it was proper to refuse the earner’s requested charges that its liability terminated upon delivery to the stockyards.

      4. Gabbiebs 3=3229(2) — Live Stock Shipments — Damages bob Delay.
    In actions for damages for delay of shipment of live stock, the measure of damages is the difference between the reasonable market value of the shipment at place of destination at the time it should have arrived, if handled in the usual and customary time, and the reasonable market value of the shipment at the time and in the condition in which it actually arrived at destination.
    Appeal from Harris County Court; Murray B. Jones, Judge.
    Action by I. Gross against the Gulf, Colorado & Santa F'é Railway Company. From judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    R. W. Franklin, of Houston, Frank J. Wren, of Ft. Worth, and Terry, Cavin & Mills, of Galveston, for appellant. J. E. Ni-day, of Houston, for appellee.
   BROOKE, J.

Appellee alleged that on the 22d day of December, 1913, he was the owner and in possession of 60 head of beef cattle at Rosenberg, Tex., which he desired to ship to Houston, Tex., and which appellant accepted to be safely carried and conveyed to Houston over its road, from Rosenberg; that appellant did not with ordinary care and reasonable diligence and speed carry said cattle from Rosenberg to Houston, but, on the contrary so negligently and .carelessly conducted itself in the premises that by and through its negligence, default, and carelessness said cattle were delayed a long time beyond the usual and ordinary time of passage over said road, to wit, 48 hours beyond the usual time of passage; that because thereof appellee was subjected to a great loss and damage, in that he missed the'Christmas market for which said cattle were shipped, and by reason of the fall in the market price of said cattle at the Houston Packing Company, to which said cattle had been sold and consigned, and by whom they were refused because of said delay in delivery, and also because of the wasting away and excess shrink in flesh and weight, drawn and emaciated condition of said cattle due to their being confined to the cars of defendant about 48 hours without food or water; that the actual value of said cattle in Houston, if they had been delivered within the usual and customary time, would have been the sum of $2,870, and that said sum was and would have been the reasonable market value of same if they had been conveyed and transported to destination with reasonable diligence and speed, and with ordinary care; and that the actual value and the reasonable market value of said cattle in the condition in which they did arrive in Houston was not more than the sum of $2,200. The allegation was that the cattle were delivered to appellant’s agent at Rosenberg on December 22, 1913, and that said agent promised that said cattle would be shipped that night; that said agent was the agent also of the Galveston, Houston & San Antonio Railroad, on which there was a train to Houston that night, but that said agent favored the Santa Fé and held said shipment for same. It was also alleged that the cattle were carried to Galveston instead of being set out at Alvin, and in consequence thereof were not delivered in Houston until midnight of December 24th, or the morning of.the 25th, Christmas day; that with reasonable speed and diligence such shipment could have arrived at Houston and have been delivered to the appellee at the Houston Packing Company at about 10 o’clock on Tuesday, the 23d of December; that appellant did not feed and water said cattle as it was bound and obligated to do after delivery to it or while in its care and custody; that by reason of default and carelessness of appellant, its agents and servants, said cattle were not delivered to appellee in a marketable condition; and that because thereof said Houston Packing Company refused to accept said cattle, and as there was no market for same in said condition appel-lee was forced to place said cattle on a pasture and feed them back to a marketable condition. Appellee sued for a total damage of $550.

Appellant answered by general denial and general demurrer and specially answered alleging that the appellee was advised, at the time he placed his cattle in the pens at Rosenberg, that appellant’s line was washed out between Rosenberg and Alvin, Tex., and that the time when it would be in order was not known to the said appellant, but that it was the intention of appellant to operate train No. 29 on Tuesday, December 23d, as the first train out of Rosenberg. Appellant further alleged that the shipment reached the Houston stockyards and was unloaded there and watered at 1 ;45 a. m. on December 25th, and that no demand was made for said cattle until about 1 o’clock p. m. on that day; that the cattle were ready for delivery to the appellee on the afternoon of December 25th, but that he failed and refused to call for said cattle until 3 o’clock the next afternoon; that said cattle, while being held in the pens at Houston, were fed in accordance with instructions of appellee, and if they suffered any damage during said time the same was the fault of appellee himself in not ordering sufficient feed to be given them.

The case was submitted to the jury on the following special issues:

“Question No. 1. Answer whether or not the Gulf, Colorado- & Santa Fé Railway Company delivered the shipment of cattle in question at Houston within a reasonable length of time after said shipment was accepted by said defendant for transportation from Rosenberg, Tex., to Houston, considering all the facts and circumstances in evidence in this case.” To this question the -jury answered, “No.”
“Question No. 2. If you have answered No. 1 in the negative and only in that event, then answer whether or not the unreasonable delay, if any, on the part of the defendant company, was the proximate cause of any damage to the shipment of cattle.” To this question the jury answered, “Yes.”
“Question No. 3. What would have been the reasonable market value of said shipment of cattle in Houston at the time of its arrival if said shipment had arrived within a reasonable length of time after its acceptance for transportation by the defendant at Rosenberg?” To this question the jury answered, “$2,870.”
“Question No. 4. What was the actual value of said shipment of cattle in Houston at the time of the delivery; of said shipment to the Houston stockyards in the condition said shipment of cattle was at the time of said delivery?” To this question the jury answered, “$2,370.”

Judgment was rendered in favor of plaintiff in the sum of $500. Motion for new trial was submitted and overruled, and the case is properly in this court for review.

The first assignment of error challenges the action of the lower court in refusing to submit special charge No. 12 requested by defendant, as follows:

“You are instructed to find for defendant, as the plaintiff has failed to make out a- case against the defendant.”

There are two propositions under this assignment, to wit:

(a) “The only ground of negligence alleged being an unreasonable delay in the delivery of the shipment at point of destination, and it being shown by the undisputed evidence that such delay was caused by an act of God, the court should have instructed the jury to find for the defendant.”
(b) “Where a portion of the delay in the transportation of cattle is unavoidable and due to an act of God and a portion is negligent, there can be no recovery, if, notwithstanding the negligent delay, the cattle would not have reached their destination in time for the market for which they were shipped.”

On the contrary,-it is urged, that whether or not appellant was guilty bf negligence under all the facts and circumstances was a question for the jury, and, there being abundant evidence supporting its finding, the appellate court will not disturb said finding; and where the disability, or so-called act of God, is existent and known to carrier at time property is received for shipment, and carrier fails to advise shipper of existing conditions, and fails to stipulate against their consequences, carrier will not he excused from liability.

There is no question about the proposition that negligence is a question of fact for the jury, and there is in this record evidence which, if believed, was to the effect that the excuses for the delay were known when the shipmept was received; and therefore, without going into the details, it is sufficient to say that, while the facts were sharply contested, it was shown by the testimony that appellant’s agent at Rosenberg did promise that the shipment of cattle would get out the same day and would arrive at destination the next morning over appellant’s road, so that in our judgment this assignment must be overruled.

The second assignment of error is adopted as a proposition, and is as follows:

“The defendant moved the court to set aside the verdict and the judgment rendered thereon because said verdict is contrary to the great weight and preponderance of the testimony, because the same showed that said shipment was only on the cars 38 hours, 5 hours of which was due to the washout and 9 hours of which was used in transporting said cattle from the yards of the defendant to the stockyards designated by the plaintiff, and the testimony of the agent of said stockyards company, which was plaintiff’s agent, showed that said cattle were in good condition when they were delivered at said place, and the only testimony as to their condition was that of the plaintiff, who did not see them until the afternoon of December 26th, at about 3:45 p. m., which was more than 36 hours after they arrived at destination, and the plaintiff himself attributed a large portion of the damage to the fact that said cattle were placed in pens that were too small which caused them to hook and jostle each other, further adding to the damage which they had already sustained. (b) Because the testimony shows that said shipment under all circumstances and conditions moved within a reasonable time, and that the same moved out of Rosenberg on the first freight train available at that time to move said shipment, and that the only delay in the transit of said cattle was the delay of 6 or 8 hours in the city of Houston, at which time plaintiff contends he could not have sold them.”

The proposition under this assignment is that, the plaintiff himself having requested the defendant to deliver the shipment to a different destination in the city of Houston after the cattle had arrived in said city, then the defendant was not liable for any injuries occurring after the unloading of the shipment at said destination, to wit, the Houston stockyards; and that, even if it should be held that the defendant was negligent in delaying the shipment after its arrival in the city of Houston, the undisputed evidence showing that the cattle could not have been sold on the market of that date even if there had been no delay, the verdict should have been for the defendant.

It is urged in behalf of appellee that the plaintiff became liable as a common carrier after receiving the shipment of cattle in its pens at Rosenberg, and that the delivery and acceptance are necessary to complete a shipment, and the fact that said train arrived in the switching yards of appellant some three or four miles from destination late in the afternoon of December 24th is in no sense delivery.

The contentions of the appellee seem to be sound, and therefore this assignment must be overruled.

The third and fourth assignments are grouped, and are as follows:

(a) “The court erred in refusing to submit special charge No. 5 requested by defendant, as follows: ‘If from the evidence you believe that after said shipment was received for transportation by defendant it was delayed in transit, but you believe that said delay was due to an inevitable accident, over which the defendants had no control, and which they could not have prevented, then you will instruct that the' defendant would not be liable for such delay.’ ”
(b) “The court erred in refusing to submit special charge No. 6 requested by 'defendant, as follows: ‘If from the evidence you believe there was delay in handling said shipment, but nevertheless believe the same was due to congestion arising out of the washout of defendant’s tracks, and that the defendant handled said shipment under all the circumstances in as reasonable a time as it could have done, then you will find for the defendant.’1”

It is urged, in behalf of appellee that where the disability is existent and known to the carrier at the time property is received for shipment, and carrier fails to advise shipper of existing conditions, and fails to stipulate against their consequences, carrier will not be excused from liability.

We have already passed upon practically the same assignment, and therefore these assignments are overruled.

The fifth and sixth assignments will be considered together, as follows:

(a) “The court erred in refusing to submit special charge No. I requested by defendant, as follows: ‘You are instructed that the defendant will not be liable to the plaintiff for any damages accruing after the delivery of said cattle to the Houston stockyards.*”
(b) “The court erred in refusing to submit special charge No. 10 requested by the defendant, as follows: ‘You are instructed that, as plaintiff ordered the stock delivered to Houston stockyards, defendant would not be liable for said stockyards’ refusal to deliver same to plaintiff.’ ”

The propositions under this assignment are that, plaintiff having requested defendant to deliver his shipment to the Houston stockyards, the liability of defendant ceased when shipment had been unloaded in said yards; and that defendant could not be held liable for plaintiff’s failure to communicate with the Houston stockyards so that he could receive cattle when delivered there.

It is contended, on the other hand, that under the fourth special issue no damage arising after the delivery of the shipment to the Houston stockyards could have been considered by the jury, hence there was no error in refusing the special charges complained of by appellant.

This contention seems to be correct, and the assignments must be overruled.

The seventh, eighth, and ninth assignments will be considered together, as follows:

(a) “The court erred in refusing to submit special charge No. 4 requested by defendant, as follows: ‘If from the evidence you believe that defendant moved said shipment by the first train in which said cars could have been carried, then defendant would not be liable for any delay up to the time said shipment actually left Rosenberg.’ ”
(b) “The court erred in refusing to submit special charge No. 7 requested by defendant, as follows: ‘You are instructed that the defendant would not be responsible for any delay prior to the time that said shipment was actually delivered to them on the car, which under the undisputed evidence was on the morning of December 23d.’ ”
(c) “The court erred' in refusing to submit special charge No. 11 requested by the defendant, as follows: ‘If from the evidence you believe that defendant moved said shipment in the first scheduled freight train, or in-'the first extra freight train that could 'have handled said shipment, then defendant would not have been liable for any damage accruing by said delay.’ ”

The propositions under this assignment are that the undisputed testimony being to the effect that defendant’s agent advised plaintiff of the congested condition of its tracks resulting from the washout, and that, notwithstanding said advice, plaintiff kept his cattle in the pens at point of origin waiting for a train, the jury should have been instructed that the defendant would not be liable for any injury to said cattle caused by being held in said pens; and that, the undisputed evidence showing that defendant’s agent refused to accept said shipment and refused to issue billing therefor at the time same was tendered on account of the condition of its tracks, the jury should have been instructed that the defendant was not liable for any injuries accruing to the stock before they were actually received by it for shipment; and that, the plaintiff himself having assumed the responsibility of placing his cattle in the pens to await the arrival of a train on which they could be shipped, the defendant was not liable for any injuries occurring to said cattle while in the pens.

The shipment was beef cattle and intended for the Christmas market, and appellant’s agent was notified of that fact at the time of delivery to its pens. It was shown that the cattle would have 'been accepted by the Houston Packing Company if they had been delivered on the morning of the 23d of December. Mr. Hotchkiss, buyer for the packing company, said: “I would have taken the cattle if they had come on contract time. We don’t take any Christmas.” The testimony is further that appellee rang up Mr. Hotchkiss and inquired if the cattle had come in, and he said, “No.” He then rang up the Santa Eé on the 24th. They told him that they would have a train between 2 and 5 o’clock; that he told them it was no use to take these cattle over to the packing house, and he ordered them over to the Southern Pacific yards, “because we wasn’t going to have no market; in other words, Mr. Hotchkiss or anybody wasn’t going to buy any cattle for Christmas.” Without going into details with reference to the matter, it is sufficient to say that in our opinion there was no error in the action of the cou^t in this matter, and therefore the assignment must be overruled.

The tenth and eleventh assignments are as follows:

(a) “The defendant moves' the court to set aside said verdict and the judgment rendered thereon because there is no testimony to support the finding of the actual value at the time of the delivery of said cattle to the stockyards, or the amount of damage they sustained, because they were not seen by the plaintiff until 36 hours after their delivery and there was no testimony as to their actual value on the 24th or 25th, and the only testimony as to their actual value was on the 26th, which was the statement of plaintiff, which was not sufficient, because it' did not show that he knew what the actual or market value of said cattle was, the only basis therefor being his statement that he thought the price of the cattle was the same on Friday as it was in Tuesday, and therefore there was no testimony upon which a jury could find the actual value of said cattle at the time of their delivery, and plaintiff did not know how many heifers, yearlings, bulls, cows, and steers were in said shipment and the price of the same varied.”
(b) “The court erred in refusing to strike out the testimony of plaintiff as to the value of said cattle on December 26th, because the witness testified, when tested on cross-examination, defendant not being allowed to test him on direct examination, that he had no knowledge of ‘what the market was on December 26th,’ and that he did not know what the cattle were worth in Houston on December 26, 1913, and that he did not know what cattle were worth in Houston on December 24th, all of which is more fully set out in defendant’s bill of exception.”

The propositions under this assignment are:

(1) The undisputed testimony showing that the shipment was unloaded in the pens at the Houston stockyards in the early morning of December 25th, and there being no testimony that there was no market for said cattle on December 25th, plaintiff should not have been allowed to introduce testimony as to the actual value of the cattle on the 26th.

(2) The testimony of the plaintiff showing that he had no way of knowing what the market value of the cattle was on December 26th, then there was no testimony before the jury upon which it could base a finding as to such market value, and therefore the verdict should have been for the defendant.

(3) It being shown when the plaintiff was tested on cross-examination that he had no knowledge of what the market value of said cattle was on December 26th, the court should have sustained defendant’s motion to strike out the testimony of plaintiff as to the market value of the cattle on the 26th.

On the contrary, it is urged that, as to that issue, that there was no market for said shipment of cattle on Christmas, there was no request for submission of said issue, and said issue was not submitted to the jury. On appeal such issue will be presumed to have been found so as to support the judgment.

It seems by the evidence that there was a failure on the part of appellee to prove the market value of the cattle at the place of destination, either on the 24th, the 25th, or the 26th. The true measure of damages in cases of this character is the difference in the reasonable market value of such shipment at place of destination at the time it should have arrived, if same had been handled in the usual and customary time, and the reasonable market value of such shipment ,at the time it actually arrived at ' destination in the condition in which it did arrive.

In the instant case there was no attempt on the part of appellee to prove that there was not a market value in the city of Houston on either the 24th, the 25th, or the 26th, and there being no proof that there was no market value in Houston during the period of the 24th, 25th, and 26th, proof should not have been .admitted of the actual value, and in our opinion it -was error on the part of the court to charge, as he did in the third paragraph of his charge:

“What was the actual value of said shipment of cattle in Houston at the time of delivery of said shipment to the Houston stockyards in the condition said shipment of cattle was at the time of said delivery?”

There is nothing in this record to show any excuse or justification of the trial court in giving the charge complained of, and we will state that the evidence in this case does not show what the market value of said cattle was on either the 24th, the 25th, or 26th, which covered the time of delivery at the point of destination in the city of Houston.

It will be seen that the consideration of the tenth and eleventh assignments includes the thirteenth assignment, with reference to the charge of the court as to the actual value of said shipment of cattle in Houston at the time of the delivery of said shipment to the Houston stockyards in the condition said shipment of cattle was in at the time of said delivery.

On account of the error of the trial court in his charge to the jury as to the measure of damages, and also on account of the absence of testimony showing the actual market value of the cattle at the time of delivery, this cause will necessarily have to be reversed and remanded.

      =Eor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <©3£>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests ?.nd Indexes


author: SWEARINGEN, J.

text:
    ZARATE et al. v. UNKNOWN HEIRS OF ZARATE et al.
    (No. 6032.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 22, 1918.
    Rehearing Denied June 19, 1918.)
    1. Judgment igr^oS — Former Judgment — Parties — Evidence.
    In trespass to try title, a decree in a former action, introduced by defendants, without any pleading or testimony to show what land was involved, or what issues were disposed of, held not to identify defendants therein with defendants mentioned in the amended petition in the present suit.
    2. Judgment <§=>585(1) — Res Judicata — Former Decree.
    In such case, where there was no evidence that the issues and parties in the former suit and the present suit were the same, the decree in the former was not admissible to prove res judicata, nor outstanding title.
    3. Evidence <§==>43(3) — Judicial Notice — Pleading and Proof in Former Suit. '
    In trespass to try title, the court could not take judicial notice of all the facts stated in the pleadings in a former suit and all the facts proven in that cause as presented in the transcript and statement of facts, making the record on appeal of that case to the Court of Civil Appeals.
    Error from District Court, Brooks County; Y. W. Taylor, Judge.
    Trespass to try title by Juan Zarate and others against the unknown heirs of Manuel Zarate and others. Judgment for plaintiffs for remainder of one-third of the grant in suit, and against them for the remaining two-thirds, and they bring error.
    Reversed, and cause remanded.
    T. Wesley Hook, of Kingsville, for plaintiffs in error. John C. North, of Corpus Christi, and Canales & Dancy, of Brownsville, for defendants in error.
   SWEARINGEN, J.

This is a trespass to try title suit, brought by the following parties, who are all plaintiffs in error, hereinafter styled plaintiffs: Juan Zarate, sometimes known as Juan Zarate • Salinas, and Damasio Zarate, for themselves, and Plilaria Aigular de Garcia and Vilgino Garcia, her husband, Manuel Zarate, Santos Zarate, Daria de Plores and Hipólito Plores, her husband, Constancia Salinas, Jose Cantu, Jesus Cantu, Francisco Cantu, Patricia D. Cantu, Atalina Cantu, Barbara Cantu and Secundino Cantu, by their attorneys in fact, Juan Zarate and Damasio Zarate, and Doroteo Bayarena, sometimes known as Doroteo Zarate, and Rosa Bayarena, sometimes known as Rosa Zarate, and Candelario Bayarena, sometimes known as Candelario Zarate, and Simon Bayarena, sometimes known as Simon Zarate, the four last named persons being the only heirs of Maximo Bayarena, sometimes known as Maximo Zarate, who has died since the commencement of this suit, and Cayatena Zarate, Jose Zarate, Manuella Zarate, and Cayatano Rodriguez, Fortunato Rodriguez, Manuel Rodriguez, and Juliana Rodriguez, the seven last named persons being the only heirs of Pilar Zarate, who died since the commencement of this suit, the three last named persons of said seven appearing by their next friend, Cayetano Rodriguez, and Ricardo C. Cantu — against the following named defendants in error, herein styled defendants: The heirs unknown, except as hereinafter stated, who are, as to some, the children, but for the most part the grandchildren, of Manuel Zarate, sometimes called Manuel Bayarena, and of Francisco Elizondo, both deceased — the children of the latter being by name, so far as plaintiffs know (without repeating the surname, Elizondo, after each name given), Nicanor, Doroteo, Tibur-cia, Mariana or Mañanita, Jesus, Ricardo, Manuella, and Exiquia; the. names of the children of the children of Francisco Elizon-do are unknown, except that Fortunato Eli-zondo is a child of Doroteo Elizondo, the children of Exiquia above named are by Vicente Olivares, her second husband, namely, Leopoldo Olivares, Samuel Olivares, and Ester Olivares, the first husband of said Exi-quia was Placido Rodriguez, and the husband of Manuella above named is Manuel Diaz, the wife of said Francisco Elizondo was Marta Zarate, deceased, the children of Manuel Zarate were (the surname, Zarate, is omitted after each given name) Tomas, Secundino, Elíseo, Rosaría, Juanna, and the other, whose name, plaintiffs believe, is Felix. The husband of Juanna is Guadalupe Villareal, made a party defendant herein; the husband of Rosaría is Juan Antonio Ruiz, by whom she had two children, Jose Angel Ruiz and Gerónimo Ruiz, who are made defendants herein. Except as here-inbefore shown, the heirs of said Francisco Elizondo ■ and his said wife, and of Manuel Zarate and his wife, are unknown to plaintiff, and whether any of those named are alive is unknown to plaintiffs, or, if dead, their heirs; but they are made parties herein, although 'their residence is unknown to plaintiffs, as is the residence of all defendants, and of Nicanor Elizondo, Manuella Elizondo de Diaz and her husband, Manuel Diaz, Abraham Elizondo, Mariana Elizondo, Estefina Elizondo de Perez and Martin Perez, and Simon Trevino.

There was no jury. Judgment was rendered in favor of plaintiffs for one-third of the Alameda grant, less the portions of said one-third sold by them prior to the suit, and against them for the remaining two-thirds of said Alameda grant. The judgment, however, awarded to plaintiffs whatever interest in the Alameda grant was owned by the unknown heirs of Manuel Zarate and of Francisco Elizondo; but what that interest is does not appear. The cost incurred by one of the defendants, Simon Trevino, was awarded against him. The balance of the costs, including a fee of $300, allowed the attorney appointed by the court to represent the unknown heirs, was adjudged against the plaintiffs.

The third amended petition alleged that plaintiffs were heirs of Pilar Zarate and that he received a grant to three leagues of land in 1835, which was afterwards, in 1881, patented to him by the state of Texas. The three leagues of land became known as the “Alameda grant,” which is described by metes and bounds in the said petition. The third amended petition also alleged that Damasio and Juan Zarate owned 11,276 acres, of the Alameda grant of 13,284 acres, by virtue of a tax deed. The said petition also contained all the other essential allegations required in this form of suit. Defendants answered by plea of “not guilty.”

There was proven the grant of 1835 confirmed by the Texas patent, in 1881, to Pilar Zarate. The family tree introduced in evidence shows that a number of the plaintiffs were lineal descendants of Pilar Zarate. Several of those named in the petition as plaintiffs are not mentioned in the proof, at least not hy the same or a similar name, for instance, Jesus, Atalina, and Barbara Cantu and Doroteo Zarate; while, on the other hand, the proof shows that Lucia and Juan Cantu and Petra Zarate were descendants of Pilar Zarate, but none of them are mentioned in the petition. Then, again, the family tree in evidence shows that Petra Sanchez is living; whereas, in the petition, her husband and children are named as plaintiffs. The location, boundary, and area of the Alameda grant were established. The tax deed by the sheriff from Pilar Zarate to 11,276 acres of the 13,284 acres, and all mesne conveyances to Domasio and Juan Zarate, were introduced'in evidence. There was no proof to support any of the pleas of limitation. On behalf of the defendants there was introduced, without objection, what purported to be the family tree of Juan Zarate and of Marta Zarate Elizondo.

Under the plea of “not guilty” defendants sought to prove an outstanding title superior to that of plaintiffs. For this purpose defendants introduce the decree rendered in suit No. 62, styled “Juan Zarate et al. v. Antonio Villareal et al.” This decree was a general one against certain named plaintiffs and in favor of certain named defendants. The decree is entitled “A suit in trespass to try title and for damages.” No pleadings or testimony was offered in connection with this to show what land was involved, nor what issues were-disposed of. But the chief defect in the decree as evidence of an outstanding title is the impossibility of identifying the defendants in the decree rendered in suit No. 62 with the defendants mentioned in the third amended petition in this suit. This will be fully discussed in our consideration of the assignments.

The first, second, fifth, and sixth assignments contend that the decree in suit No. 62 was insufficient in itself to support the judgment herein, because that decree in suit No. 62 did not show that the issues and parties were the same in that and in this. The third and fourth assignments complain that the court erred in admitting the decree in No. 62 as evidence of res adjudieata. The reasons for the- court’s errors are the same in all of the six mentioned assignments.

We think these assignments should all be sustained. The decree in suit No. 62 was as follows:

“Juan Zarate et al. v. Antonio Villareal et al. No. 62. Trespass to Try Title as Well as for Damages. This 5th day of January, A. D. 1912, came on to be heard the foregoing styled and numbered cause, and the parties and their attorneys appeared in open court and announced ready for trial. Then came a jury of good and lawful men, composed of H. M. Bennett and eleven others, who having been duly tried, impaneled, and sworn, and having heard the pleadings, the evidence, and argument of counsel, and the charge of the court, retired to consider of- their verdict. After due deliberation said jury returned into court the-following verdict: ‘January 5, 1912. To Hon. W. B.-Hopkins, District Judge: We, the jury in the case of Juan Zarate et al. v. Antonio Villareal et al., find in favor of the defendants. H. M. Bennett, Foreman.’ Wherefore it is considered by the court that plaintiffs ought not to recover, and that defendants should go hence without day and recover on their cost bond herein ⅝11 their costs in this behalf expended. It is therefore ordered, adjudged, and decreed by the court that the plaintiffs, Juan Zarate, Damaso Zarate, Pilar Zarate, Maximo Zarate, Manuel Zarate, Santos Zarate, Hilaria Aguilar de Garcia, Virginia Garcia, Daria de Flores, Hipólito Flores, Ricardo Cantu, Secundo Cantu, Lucio Cantu, Constancio Salinas, Jose Cantu, Juan Cantu, Jesusa Cantu, Francisco Cantu, Patricia L. Cantu, Atalina F. Cantu, and Barbara Cantu, take nothing by this suit, and that defendants, Antonio Villareal Flores, alias Antonio Villa-real, Gumecinda V. de Villareal, Silvester Cantu, Nicolosa Flores Salinas de Cantu, Nicolas Cantu Altamira, Rogue Cantu, Jose Maria Martinez, Matilde Martinez, Victor Martinez, Vivian de Luna, Severina Flores de Morales, Ignacio Morales, Marcelo Cantu, alias Marcelo Cantu Altamira, Tomas Diaz, Francisco Flores Garza, alias Francisco Flores Garza Salinas, Jose Maria Longoria, and Simon Trevino, go hence without day. ⅜ ⅜ ⅜ ”

It will be noticed that the defendants in the above decree are not described as the heirs of Marta Zarate Elizondo, nor of Manuel Zarate, and that the following named as defendants in that decree are not identified by the family trees as heirs of either Manuel Zarate or Marta Zarate Eli-zondo-, viz.: Antonio and Gumecinda Vil-lareal, Sylvester Cantu, Nicholas Flores Salinas de Cantu, Nicholas Cantu- Altamira, Roque Cantu, Jose Maria Martinez, Matilde Martinez, Victor Martinez, Vivian de Luna, Severina Flores de Morales, Ignacio Morales, Tomas Diaz, and Jose Maria Longoria. The evidence shows that Francisco Flores Garza was the second wife of Juan Antonio Ruiz; that Juan Antonio Ruiz’s first wife was Roseria Zarate; that Juan Antonio Ruiz is dead, hence he acquired no interest in the estate of Pilar Zarate by inheritance. ■Simon Trevino is mentioned as defendant in the petition herein, and in the decree in suit No. 62; but the evidence of heirship fails to identify him as such, or show any interest owned by him.

Counsel for defendants evidently is under the impression that this court can take judicial notice that suit No. 62 was appealed to this court and of the judgment therein rendered by this court. In this he is probably correct; but he also seems to be under the impression that this court can judicially know all the facts stated in the pleadings in suit No. 62, and all of the facts proven in that cause, as these facts are presented in the transcript and statement of facts, which made the record on the appeal of that case to this court. If such be his construction of the rule Of judicial notice, he is mistaken. The rule is stated thus in Armendiaz v. Serna, 40 Tex. 292-304:

“In this connection it is proper to observe, on the suggestion of counsel for plaintiff, that this court should examine the record of the suit here pending on appeal, between the defendant and Sam Roman, to determine his liability to her, in aid of the jurisdiction of the court below. The court is of opinion that such examination of another record, not in evidence in the record of this cause, would be wholly improper in any point of view. The merits or correctness of decisions made in one case can never be dependent on the contingency of a decision not made final in another, nor put in _ evidence in the cause at the time of such decision in the first. Moreover, it is believed that such a practice of referring to other records or matters dehors that which is under consideration, would be fraught with dangerous consequences, and tend to unjust decisions between litigants. The hearing and decision here should be, and is required by law to be, exclusively upon the record of each cause here appealed, just as it stood in the court from which it is brought.”

The above declaration of the rule is approved by our Supreme Court in State v. Savage, 105 Tex. 471, 151 S. W. 530. We conclude that there is no evidence that the issues and parties in this suit and in suit No. 62 were the same; hence the decree was not admissible to prove res adjudicata, nor outstanding title, and is insufficient to support the decree herein. We sustain the first, second, third, fourth, fifth, and sixth assignments.

The seventh assignment complains of the trial court’s award of costs. Inasmuch as we will have to reverse the judgment and remand this cause for further trial, it will be unnecessary to consider the seventh assignment.

The judgment of the trial court is reversed, and the cause is remanded.
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