source: Caselaw Access Project

author: RASBURY, J.

license: Public Domain

text:
    BURNS v. PARKER et al.
    (Court of Civil Appeals of Texas. Dallas.
    March 15, 1913.
    Rehearing Denied April 5, 1913.)
    1. Guabdian and Wabd (§ 10) — Appointment— Selection by Wabd.
    Under Rev. Civ. St. 1911, arts. 4079, 4084, the right of a minor to select his own guardian is absolute if he does not select any of that class of persons excluded by the statute, and the person so selected is suitable and competent.
    [Ed. Note. — Eor other cases, see Guardian and Ward, Cent. Dig. §§ 23-33; Dec. Dig. § 10.]
    2.,,Guardian and Wabd . (§ 10) — Appointment — Competency op Guabdian.
    Rev. Civ. St. 1911, art. 4078, provides that a party to a lawsuit on the result of which the condition or fortune of a minor depends or a person not discharging an indebtedness to him prior to such appointment shall not be appointed guardian of any minor. In a proceeding by the adopted mother of a minor ward to be appointed his guardian, judgment was entered removing his acting guardian and appointing her, and pending appeal to the district court, the acting guardian suing for the benefit of the ward brought trespass to try title and for rents, the suit resulting in a judgment that buildings erected by her were intended as a gratuity, to the ward, and that she was not indebted to him, and thereafter the order removing the acting guardian was affirmed and she was appointed guardian. Held, that the issues in the suit to try title were not material to her competency, since the interests of the ward were fixed by law, and since any ground of objection to her had been removed before her appointment.
    [Ed. Note. — Eor other cases, see Guardian and Ward, Gent. Dig. §§ 23-33; Dec. Dig. § 10.]
    3. Pleading (§ 239) — Amendment— Costs.
    An action in the county court to substitute plaintiff for defendant as guardian was filed, when there was no litigation pending between plaintiff and defendant, as'acting guardian, that might affect the minor’s fortune and plaintiff’s right to the appointment, and the amended application filed in the district court on appeal merely alleged removal of a disqualification which had developed pending the action. Held that, as plaintiff did not set up in the district court a new cause of action, the rule that a cause of action may be amended on appeal from the county court to the district court upon payment of costs in the discretion of the trial judge had no application.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 626-635; Dec. Dig. § 239.]
    4. Guardian and Ward (§ 19) — Selection and Competency — Statutes.
    Under Rev. Civ. St. 1911, art. 4084, giving a ward- on attaining the age of 14 years the right to select a new guardian, the question as between an acting guardian and the one selected by a minor ward is wholly a question of the competency of the guardian selected, and the fact that the acting guardian had' acted at the oral request of the ward’s father, that to appoint the guardian selected would place his funds under control of one not related to him, and that the acting guardian had competently and profitably managed his estate were not material to and did put in issue the competency of the guardian selected.
    [Ed. Note. — For other cases, see Guardian and Ward, Cent. Dig. § 72; Dec. Dig. § 19.]
    Appeal from District Court, Dallas County; J. C. Roberts, Judge.
    Proceeding by Jennie E. Parker and others against J. I-I. Burns. From a judgment removing defendant as guardian of the estate of Ernest L. Burns, a minor, and appointing plaintiff; defendant appeals.
    Affirmed.
    Morris & Pope, of Dallas, for appellant. Geo. A. Titterington, of Dallas, for appellees.

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

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

   RASBURY, J.

This is an appeal from the judgment of the Sixty-Eighth district court of Dallas county entered upon the verdict of a jury removing appellant as guardian of the estate of Ernest L. Burns, and appointing in his place and stead the appellee Jennie E. Parker. The proceeding was originally filed in the county court of Dallas county, where judgment was also entered removing appellant, and from which order appellant appealed to the district court with the result stated.

For the purpose of intelligently considering the issues raised by the brief of appellant, it is only necessary to state that appel-lee’s pleading sought to remove appellant as guardian on the ground that the ward, who at the time of the filing of the application was 14 years of age, had in writing selected appellee Jennie E. Parker as his guardian in the manner provided by statute. Appellant opposed the appointment of appellee under the ward’s selection on the ground (1) that the father of the ward at his death orally selected appellant to act as guardian; (2) because the ward had been adopted by Jennie E. Parker and her deceased husband, Theodore Nussbaumer, and appellee having since married W. B. Parker, who had children by his former wife, it would not be to the interest of the ward to have appellee as his guardian; (3) that to appoint appellee guardian would be to place the estate of the ward under the control of appellee’s husband, W. B. Parker; (4) that appellee Jennie E. Parker was, as survivor of the community estate of herself and her former husband, indebted to the ward; (5) that appellant was guardian of certain undivided property of the ward and his two brothers, and it would entail double expense to have two guardians administering the same property; (6) that the ward had been overreached and influenced against his best interest in the selection of a guardian.

It is proper and will be of assistance to state at this point that Jennie E. Parker was formerly the wife of Theodore Nussbaumer, and that during the lifetime of Nussbaumer he and his wife, now Jennie E. Parker, being childless, adopted Ernest B. Burns when a child of tender years, made him their lawful heir, moved him into their family circle, where he remained up to Nussbaumer’s death, and has been since that time living with Jennie E. Parker. Nussbaumer and his wife at that time had their homestead upon an acre of land in the city of Dallas, which was the separate estate of Nussbaumer. After the death of Nussbaumer, his wife, with her separate means, built four rent houses upon a portion of the homestead lot. After the appeal of the instant case from the county court, and before a trial in the district court, appellant filed suit in trespass to try title for the benefit of his ward against Jennie E. Parker for title and possession of part of the Nussbaumer homestead and for rents, etc. The district judge upon the filing of the suit in trespass directed that the proceeding to remove appellant as guardian await the determination of that suit. The suit in trespass was finally disposed of in this court on appeal, and is reported as Burns v. Parker, 137 S. W. 705. The result of that suit was, in substance, that Mrs. Parker abandoned that -portion of the homestead lot upon which, she built the rent bouses, subject only to ber life estate in one-third thereof, held the building of the houses to be intended as a gratuity by her to her adopted son, Ernest .Burns, ordered partition of certain community lands, and denied any recovery for rents for the reasons stated in the opinion.

Appellant’s first and second assignments of error complain of the action of the district judge in sustaining exceptions tó that portion of appellant’s answer which alleged that Jennie E. Parker was not suitable or competent to act as guardian for his ward because of the facts and issues set out in the suit of trespass to try title, and particularly so because said facts existed and had not been determined and adjusted at the time his ward selected Mrs. Parker for his guardian. Under said assignments, the proposition is asserted that one who is a party to a lawsuit on the result of which a part of the fortune of the minor may depend, or who is indebted to the minor, is disqualified from acting as guardian of such minor. As applicable to the points here raised article 4078, R. S. 1911, 2585, R. S. 1895, provides that persons who “are parties to a lawsuit, on the result of which the condition of the minor or part of his fortune may depend,” or persons who are “debtors to the minor, unless they discharge the debt prior to such appointment,” shall not be appointed guardians of the estate of any minor, and the right of the minor under articles 4079 and 4084, R. S. 1911, 2586 and 2591, R. S. 1895, to select his guardian, is subordinate to said provisions of the statutes. Then the question arises under the assignments we are discussing, Were the facts developed in the suit of trespass to try title material, and were they admissible in evidence for any purpose upon trial of the instant case? We think not. The right of the minor to select his guardian is absolute if he does not select any of that class of persons excluded by the statute and the person so selected is suitable and competent. Heinemier v. Arlitt, 29 Tex. Civ. App. 140, 67 S. W. 1038. Mrs. Parker at the time she was appointed was neither indebted to the minor nor a party to a lawsuit which might affect his fortune, for by the final judgment of this court in Burns v. Parker, supra, it was determined that Mrs. Parker was not at any time indebted to the minor, and it is not claimed that she was actually a party to a lawsuit at the time she filed her application. The mpst that can be said is that, after the appeal from the county court to the district court, she was made defendant in a suit which brought her within the provisions of the statute. Conceding then, that a sound legal objection to her appointment developed pending the trial of the appeal from the county court, such objection, nevertheless, had been effectually removed at the time of her appointment. Beyond and beside all that it does not appear from the facts and the opinion in Burns v. Parker, supra, that the attitude or interest of Mrs. Parker therein was at any time such as that the fortune of the minor depended thereon. His interest in the separate estate of Nussbaumer, his adopted father, and the community estate of Nussbaumer and Mrs. Parker, his adopted mother, was not only fixed by law, but she was so careless of her own interests in the estate that she was held by law -to have intended a gratuity to him when she erected the several rent houses upon the abandoned portion of her homestead lot.

The third assignment of error complains of the refusal of the trial court to tax the costs of the proceeding against appellee up to the time of Mrs. Parker’s disqualification to act as guardian was removed; and under said assignment the proposition is asserted that, while a cause of action may be amended on appeal from the county court to the district court, it can only be done upon payment of costs. The rule stated is correct, with the qualification that the payment of costs would be a matter within the discretion of the trial judge. However, we are of opinion that appellee did not set up in the district court a new cause of action. The cause of action was at all times to substitute Mrs. Parker for appellant as guardian. When the suit was filed in the county court, there was no litigation pending between her and appellant as guardian of the minor that might affect the minor’s fortune, and as a consequence Mrs. Parker’s right to appointment. That situation developed subsequently. When the amended application was filed in the district court, the cause of action was what it had always been. The only change was to allege the removal of an impediment which had developed during the progress of the suit.

The fourth, fifth, and sixth assignments of error are directed against the action of the trial judge in sustaining demurrers to portions of appellant’s answer, which alleged (1) that appellant was acting as guardian at the oral request of the minor’s father; (2) that to appoint Mrs. Parker would place thé funds of the minor under control of her hus-. band, who was not related to the minor; and (3) that appellant had competently and profitably managed his ward’s estate. We are of opinion that all these alleged facts were immaterial since they could, if true, in no respect have affected the right of the ward to-select his own guardian subject to the limitations we have already noted. Neither were they material as bearing upon the competency or suitability of Mrs. Parker; since her competency and suitability were not attacked or put in issue by such allegations. It is not a question in 'such cases of comparative competency and suitability between the acting guardian and .the one selected by the minor, but wholly a question of the competency and suitability of the one selected by the minor. Article 4084, R. S., 1911.

The seventh, eighth, ninth, tenth, twelfth, fifteenth, sixteenth, seventeenth, eighteenth, nineteenth, twentieth, and twenty-first assignments raise questions which we have discussed, and which render further discussion unnecessary.

The ninth, thirteenth, fourteenth, and eighteenth assignments have been carefully considered, together with-the bills of exception upon .which they are grounded, and because in our opinion they present no reversible error same are overruled.

Finding no reversible error in the record, the judgment of the court below is affirmed.


author: HUFF, C. J.

text:
    FT. WORTH & D. C. RY. CO. v. JORDAN et al.
    (Court of Civil Appeals of Texas. Amarillo.
    March 15, 1913.
    Rehearing Denied April 5, 1913.)
    1. Carriers (§ 205) — Transportation op Animals — Carrier’s Liability.
    Under the statutes of Texas, a carrier is bound to receive and transport live animals as other property, and is liable as an insurer for any loss not arising from act of God, the public enemy,' the act of the owner, vicious propensities, or inherent character of the animals
    [Ed. Note. — For other 'eases, see Carriers, Cent. Dig. .§§ 918, 920, 923 ; Dec. Dig. § 205.]
    2. Carriers ’(§ 230) — Transportation op Animals — Verdict.
    Where plaintiff sued two railroad companies for killing a horse and injury to certain furniture in transportation, and defendant ■ D. Company pleaded that the injury was due to the negligence of its codefendant, the B. Company, and prayed for recovery over against the latter for the amount of any recovery against it by plaintiff, the evidence being conflicting as to which company caused the damage, and plaintiff being entitled to recover against both without proof of negligence, a verdict for plaintiff against the D. Company only for $179 and in favor-of the latter against the B. Company for only» $50 was not erroneous.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 961, 962; Dec. Dig. § 230.]
    3. Carriers (§ 229) — Injury to Animals— Damages — Medical Treatment — Removal op Carcass.
    Where ■ plaintiff delivered to a carrier certain horses and other personal property to be transported to C., and during the trip one of the horses was so injured that he could not stand, and had to be hauled from the car at destination where he was given medical treatment, and soon after died, plaintiff was entitled to recover the expense of treating the horse and also the amount paid to the city scavenger for hauling off the carcass as a part of the damage sustained.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 930, 963, 964; Dec. Dig. § 229.]
    . Appeal from Childress County Court; W. G. Gross, Judge.
    Action by L. F. Jordan against the Ft. Worth & Denver City Railway Company and another. Judgment for plaintiff, and the defendant named appeals.
    Affirmed.
    Fires & Diggs, of Childress, for appellant. M. J. Hathaway and J. H. Peden, both of Childress, for appellee Jordan. Capps, Can-tey, Hanger & Short and Win. L. Evans, all of Ft. Worth, for appellee Ft. Worth Belt Ry. Co.

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

   HUFF, C. J.

This action was brought by appellee L. F. Jordan against the Ft. Worth & Denver City Railway Company and the Ft. Worth Belt Railway Company for dam-, ages alleged to have been sustained by reason of the killing of one horse, of the value of $150, and injury to a piano, $25, and for $1 for medicine for treating the horse, and $3 to city scavenger for removing the carcass of the horse.

The appellee Jordan alleged that about December 1, 1911, he delivered to the Ft. Worth & Denver City Railway Company a certain car, to be transported from Ft. Worth to Childress, Tex., in which car he had loaded nine head of horses and mules, besides household goods, including one piano, and while the car was on the track and in the possession of the defendant Ft. Worth & Denver City Railway Company at Ft. Worth, Tex., its agents and employes, and the agents and employes of the said Ft. Worth Belt Railway Company, carelessly and negligently caused other cars on the track to be violently driven against the car in which plaintiff’s said property was loaded with such great force that one of plaintiff’s said horses was knocked down, and so seriously injured that it died from the injuries soon after arriving at Childress, 'Tex., and that in the collision other furniture and property in said car was driven against the plaintiff’s said piano in the car, and that it was seriously broken and damaged. The appellant, the Ft. Worth & Denver City Railway Company, answered by general denial and that if any injury was done-the property, as alleged, it was caused by the negligence of the appellee the Ft. Worth Belt Railway Company, and asked for judgment over against appellee Ft. Worth Belt.Railway Company for any sum rendered against appellant railway company. The ap-pellee the Ft. Worth Belt Railway Company answered by general denial, not guilty, and other pleas not necessary to set out. The suit was originally instituted in the justice court, and appealed from that court to the county court of Childress county, where verdict and judgment were rendered in favor of appellee Jordan against appellant, the Ft. Worth & Denver City Railway Company, for the full sum of $179, and in favor of the appellant, Ft. Worth & Denver City Railway Company, against the appellee the Ft. Worth Belt Railway Company for the sum of $50, from which judgment the Ft. Worth & Denver City Railway Company appeals.

It is urged by appellant in its fifth assignment that the court erred in authorizing a recovery against the appellant in favor of Jordan if the property was in its possession when damaged, regardless of whether it was caused by negligence on the part of either corporation. Under the laws of this state, appellant was a common carrier, and as such its liability is measured by the rules of the common law. In the ease of Railway Co. v. Trawick, 68 Tex. 314, 317, 4 S. W. 567, 569 (2 Am. St. Rep. 494), the Supreme Court said: “Under the statutes of this state, a railway company must receive and transport live animals as other property, and after receiving it becomes an insurer of them as in the case of other property, which it is bound to transport against loss from any cause, except the act of God or the public enemy, the act of the owner, vicious propensities or inherent character, or, as it is sometimes termed, the ‘proper vice’ of the animals.” Railway Co. v. Harris, 67 Tex. 166, 2 S. W. 574; Railway Co. v. Turner, 37 S. W. 643; Railway Co. v. Levi (Sup.) 12 S. W. 677; Railway Co. v. Russell, 40 Tex. Civ. App. 114, 88 S. W. 379; Railway Co. v. Rosebrook-Josey Grain Co., 52 Tex. Civ. App. 156, 114 S. W. 442; Railway Co. v. Blanton, 63 Tex. 112; Railway Co. v. Gray, 24 S. W. 921; Railway Co. v. Zimmerman, 81 Tex. 605, 17 S. W. 239; Railway Co. v. Hall, 64 Tex. 615; Railway Co. v. Ball, 80 Tex. 602, 16 S. W. 441; Railway Co. v. Fagan, 72 Tex. 127, 9 S. W. 749, 2 L. R. A. 75, 13 Am. St. Rep. 776. In this case it is shown that the appellant had ■ received the car containing the horse and piano from the Ft. Worth Belt Railway Company, and receipted therefor, and had executed to appellee Jordan a bill of lading thereon, and that while on its track and under ^its care and in its possession the damage occurred. This does no.t appear to have been a controverted fact. There is no allegation or proof that the injury was caused from the proper vice of the animals, or any other act which would relieve the appellant from liability for injury to the property while under its charge. Hence, under the law and the facts as shown in this ease, there was no error in the charge of which complaint is made.

In the third assignment, it is asserted that the jury could not lawfully render the verdict it did under the court’s charge, wherein 'the jury was instructed to find for appellee against the Ft. Worth Belt Railway Company, if it was guilty of negligence in causing the damage; and the fourth assignment complains of the verdict because the jury must have found it was the negligence of the Ft. Worth- Belt Railway Company that caused the injury, and only found $50 in favor of appellant against the appellee Belt Company, instead of the full amount of damages, $179. As seen, the jury could have found the appellant responsible under its common-law liability as a common carrier without finding any act of negligence against either of the defendants. Under the common law, where loss is not due to one of the excepted' causes, such as the act of God or the proper vice of the animal, proof of negligence is immaterial, and the carrier cannot escape liability by proving reasonable care and diligence. 6 Cyc. p. 376; Arnold v. Jones, 26 Tex. 335, 82 Am. Dec. 617; Agnew v. Steamer Contra Costa, 27 Cal. 425, 87 Am. Dec. 87. It does not follow because the jury returned a verdict for appellee Jordan against appellant that it necessarily found negligence against any one, but its verdict is entirely’ consistent with the charge of the court, wherein they were instructed if appellant had charge of the goods under the contract of shipment, and the same were damaged, they could find against appellant whether there was negligence proven against either defendant.

The first and second assignments are to the effect that the undisputed evidence shows that the Ft. Worth Belt Railway Company caused the injury, and that it was its active negligence which produced the injury. In this we cannot agree with appellant. The evidence is sharply conflicting as to who caused the cars to be propelled against the car in which Jordan’s goods' were loaded. The employés of the Belt Railway Company deny that they so caused the cars to bump against that car. There are a great many facts and circumstances in evidence from which the jury could have reasonably inferred that it was not the act of the Ft. Worth Belt Railway Company that caused the dam-, age. If they had found that the Ft. Worth Belt Company was negligent, they, under the charge of the court, would have found in favor of appellee Jordan against said'company. Having found nothing against such company in his favor, they must therefore have found it not guilty of negligence, and hence appellant was entitled to nothing over against that company.- The fact that they, under such circumstances, gave appellant a verdict for $50 over against the Belt Railway Company, is not a matter of which appellant can complain. It was not injured thereby. If the Belt Company was complaining here, then a different question might arise. The charge of the court instructed the jury to find for appellant against the Ft. Worth Belt Railway Company only such damages as it might have caused. The jury may have, under' the evidence before them, apportioned the damage thus charged. It would ,be a useless consumption of time to demonstrate or speculate just how they did so. As the case, comes before us, we cannot say under the charge of the court and the testimony and under the verdict of the jury as rendered that injury is shown appellant.

The sixth assignment is overruled. We do not think the charge was calculated under the issues presented to give undue prominence to the fact that negligence or liability must be shown by a preponderance of the evidence.

In the seventh assignment it is urged the court was in error in submitting to the jury the two items of damages, one for medicine for treatment of the horse, $1, and $3 for moving the carcass of the horse. The first item it would appear under the decisions of our courts is a proper one. It is the duty of the owner to make an effort to diminish his loss; and, if reasonable and necessary expenses are incurred in so doing, we see no reason why he could not recover the same. Railway Co. v. Tuckett, 25 S. W. 670; Railway Co. v. Keith, 74 Tex. 287, 11 S. W. 1117; Railway Co. v. Philips, 63 Tex. 593. The other item for ?3, paid to the city scavenger for hauling off the animal, is urged should not be allowed as damages in the ease. The injury from which the animal died was received on the voyage from Ft. Worth to Childress. The animal was unloaded at Childress, and died the next day after unloading within the corporate limits. It could not stand up while in the car, and was removed therefrom by means of a block and tackle, and was able to walk but a short distance. In cases of tort the rule is that the wrongdoer shall be answerable for all injurious consequences. The injury to the animal was the wrong done appellee, and the consequences was the death of the animal in the corporate limits of Childress. Such consequences, we think, might reasonably be supposed to have been foreseen. We do not think the damages so sustained too remote for recovery in this case. Western Union Telegraph Co. v. Hamilton, 36 Tex. Civ. App. 300, 81 S. W. 1053; Buffalo B. S. C. Co. v. Milby, 63 Tex. 492, 51 Am. Rep. 668; O’Neil v. Davis, 1 White & W. Civ. Cas. Ct. App. § 415.

We find no such errors as require a reversal of the case, and the judgment of the trial court is therefore affirmed.


author: HIGGINS, J. MeKENZIE, J.

text:
    GALVESTON, H. & H. R. CO. v. HODNETT.
    (Court of Civil Appeals of Texas. El Paso.
    Feb. 27, 1913.
    On Rehearing, March 19, 1913.
    Rehearing Denied April 10, 1913.)
    1. Trial (§ 260) — Instructions—Requests Covered.
    A requested instruction covered by the main charge is properly refused.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.]
    2. Trial (§ 260) — Instructions—Repetition.
    A requested instruction which is .an undue .repetition in respect to the burden of proof is properly refused.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.]
    3. Master and Servant (§ 204) — Assumption op Risk — Knowledge op Danger.
    Under Assumed Risk Act April 24, 1905 (Acts. 29th Leg. c. 163), continuation in the service with both knowledge of the defect and danger is essential to charge a servant with the risk.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 544-546; Dec. Dig. § 204.]
    4. Master and Servant (§ 217) — Assumption op Risk — Knowledge op Danger.
    A servant engaged in throwing rails off a flat car will not be deemed to have knowledge of the danger from a defective drawhead because he has knowledge that it is defective.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 574-600; Dec. Dig. § 217.]
    5. Damages (§ 191) — Medicines — Reasonable Value.
    In a personal injury action, where the only evidence of the value of medicines used was the testimony of plaintiff that he paid a lump sum for the medicine, there can be no recovery therefor; it not appearing that the charge was reasonable.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 504, 510; Dec. Dig. § 191.]
    6. Trial (§ 295) — Instructions—Construction.
    A charge must be construed as a whole.
    [Ed. Note. — For other eases, see Trial, Cent. Dig. §§ 703-717; Dec. Dig. § 295.]
    7. Damages (§ 158) — Personal Injury — Preexisting Disease — Pleading.
    In a personal injury action in which the petition alleged that plaintiff was a healthy man, the general issue put in issue such fact, and hence damages caused by the additional injury by reason- of a diseased condition existing at the time of the accident are recoverable, though not expressly pleaded.
    [Ed. Note. — For 'other cases, see Damages, Cent. Dig. §§ 441-444; Dec. Dig. § 158.]
    8. Appeal and Error (§ 732) — Assignments op Error — Motion por New Trial.
    An assignment of error that the court erred in overruling a motion for new trial, because the verdict was clearly excessive is too general to be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3022-3024; Dec. Dig. § 732.]
    On Rehearing.
    9. Appeal and Error (§ 1140) — Reversal-Remittitur.
    Where, in a personal injury action, recovery for medicines is erroneously allowed, a remittitur of the amount recovered cures the error.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 4462-4476; Dee. Dig. § 1140.]
    10. Master and Servant (§ 204) — Assumption op Risk — Statutes—Bar to Recovery.
    Assumed Risk Act April 24, 1905 (Acts 29th Leg. c. 163), providing that assumed risk is no defense when a person of ordinary prudence would have continued in the service with knowledge of the defect and danger, merges assumed risk arising from the knowledge of the defect and danger into a question of contributory negligence, and hence in view of Employers’ Liability Act (Acts 31st Leg. [1st Ex. Sess.] c. 10; Rev. Civ. St. 1911, art. 6649) providing that contributory negligence does not bar recovery, but the damages are to be reduced in proportion to the negligence, assumption of risk arising from the knowledge does not bar a recovery, but is available only in mitigation of damages.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 544-546; Dec. Dig. § 204.]

      11. Appeal and Error (§ 1066) — Harmless Error — I nstrtjctions.
    In anu action for injuries to a servant, ■where assumption of risk arising from the knowledge of the defect is not a bar to recovery, and should not have been submitted as a bar, any error in an erroneous limitation on the doctrine is harmless as to defendant.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4220; Dec. Dig. § 1066.]
    McKenzie, J., dissenting.
    Appeal from District Court, Harris County ; Norman G. Kittrell, Judge.
    Action by W. J. Hodnett against the Galveston, Houston & Henderson Railroad Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Baker, Botts, Parker & Garwood," of Houston, fqr appellant. John Lovejoy and Presley K. Ewing, both of Houston, for ap-pellee.

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

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

   HIGGINS, J.

Suit for damages account personal injuries, resulting in verdict and judgment for $8,000.

It was averred by plaintiff that he was employed by defendant as a section foreman, and on August 19, 1910, he and his crew of men were engaged in unloading rails from a flat car, distributing same about every 30 feet alongside the track, the flat car being at the east end of a train consisting of an engine and two intervening box cars; that the engineman would move the train eastward about 30 feet, when two rails would be thrown off, the train movement being made upon signals to start or stop given by a switchman. After about 25 stops had been made, and while plaintiff was standing about two feet from the east end of the ear, with his face toward the engine, and while reaching down for a pick, the car came to a sudden and abrupt stop, with a bump and a jerk, unawares and without notice to plaintiff, throwing him over, the rebound pulling the ear from under him, and one of his men upon the car was thrown against him by the bump and jerk, precipitating both to the ground, and as a result of the fall the injuries complained of were inflicted; that the same were proximately caused by the defendant’s negligence “(1) in failing to use ordinary care to maintain the drawheads of the box car next said flat car in a reasonably safe condition, on account of which failure, when the air was applied, said appliances allowed an unusual or unnecessary play or slack of many inches, which was a proximate cause of aforesaid sudden and abrupt stop of said flat car (which was unusual and unnecessary) and the consequent bump and jerk-back, as aforedescrib-ed; (2) in failing by its agent and servant in charge of said engine, to wit, the engine-man, who was acting for it in that behalf within the scope of his authority, to exercise ordinary care in the handling of said engine and train, and said flat car attached thereto, to prevent said flat car on which plaintiff was working from coming to an unnecessarily sudden and abrupt stop, as it did, and the consequent bump and jerk-back as aforedescribed.” In addition to a general denial, defendant’s answer in substance alleged that the accident was not due to any negligence upon the part of defendant in the particulars alleged, but to the fact that plaintiff was standing too near the end of his ear, lost his balance when it stopped, thereby falling off, due to his failure to exercise any care to prevent falling; contributory negligence in failing to assume a safe position upon the car, away from the extreme end, when he knew the car was about to stop; and further pleaded that plaintiff assumed the risk incident to any defect in the drawhead.

Defendant requested a special charge, which reads as follows: “You are charged that the burden of proof is on the plaintiff to show; by a. preponderance of the evidence that he was caused to fall from the car by negligence on the part of the defendant. If you believe from the evidence that ¡the plaintiff fell because he was standing too near the end of the car when it stopped, and because he lost his balance and was not caused to fall on account of any negligence on the part of the defendant, you will return your verdict for the defendant.” This charge was properly refused because in respect to the issue of whether or not plaintiff’s fall was due to the fact that he was standing too near the end of the car when it stopped and lost his balance the same was properly submitted in the main charge; furthermore, to have given same would have been an undue repetition, in respect to the burden of proof. Since it was not proper to give the charge in its requested form because of this undue repetition, it was properly refused. Railway Co. v. Minter, 42 Tex. Civ. App. 235, 93 S. W. 516. It is insisted that, while it may have been objectionable in the particular noted, yet undue repetition alone does not condemn a charge, and it is only when the repetition is calculated to mislead that it becomes objectionable. This may be true in the sense that it is only in the latter event to give such a charge is reversible error, but charges should avoid undue repetitions, whether calculated to mislead or not.

Error is assigned to a paragraph of the court’s charge as follows: “If you do not find from the evidence that the plaintiff knew, or must necessarily have known in the ordinary discharge of his own duties, that such defect, if any, was in the draw-heads or drawhead in question, or if you believe from the evidence that a - person of ordinary care in plaintiff’s situation would have continued in the service with knowledge of such defect, if any, then plaintiff will not be deemed in law to have assumed the risk of such defect, if any.” Knowledge of both defect and danger, now as previous to adoption of the Assumed Risk Act of 1905, are essential elements of the doctrine of assumed risk, and under the act noted a determination of the question is controlled, not by a consideration of whether a person of ordinary care would have continued-in the service with knowledge of the defect only, but whether such person would have continued in the service with knowledge of the defect and danger, and it is not the law, as 'charged in this paragraph, that plaintiff did not assume the risk of the condition stated, if a person of ordinary care, in his situation, would have continued in the service, with knowledge of the defect merely, and the charge quoted was more onerous on the defendant than the law permits. Knowledge of a defect does not in all instances necessarily .imply a knowledge of the danger incident thereto. Poindexter v. Receivers, 101 Tex. 322, 107 S. W. 42; Railway Co. v. Smith, 24 Tex. Civ. App. 127, 57 S. W. 999; Railway Co. v. Hughes, 22 Tex. Civ. App. 134, 54 S. W. 264. And a person of ordinary care might continue in the service when he had knowledge of the defect" but not of the danger, whereas he would not do so if he had knowledge of the danger as well.

Discussing the principle that assumption of risk is not predicable from knowledge of defective condition alone, Mr. Labatt, on Master and Servant at section 279b, says: “The practical importance of the principle stated in the last section is considerably diminished by a fact which is sufficiently obvious, viz., that circumstances which would justify a jury in finding that a servant, although aware of the abnormal conditions, did not comprehend the risks resulting therefrom, are of much more rare occurrence than circumstances in which his comprehension of the risks is an unavoidable inference as soon as it is established that he knew of the abnormal conditions. In the majority of instances, therefore, it will be found that the courts treat the servant’s assumption of the risk as an immediate consequence of his knowledge of the conditions of which that risk was an incident. The rationale of these decisions is not that proof of the servant’s comprehension of the risk is unnecessary, but simply that, upon the facts in evidence, any person of average intelligence who was aware of the conditions must either have understood, or have been chargeable with negligence in hot understanding, the hazards to which these conditions exposed him. But, although one step of the deductive process is thus talcen without the aid of ■ any specific testimony, there is a manifest impropriety in giving an abstract statement of the rule as to assumption of rislc in terms which ignore the circumstance that this step must be accounted for."

The -italicized portion of the quotation aptly states the vice in the charge under consideration, since'the effect thereof is to imply that one of the necessary deductive steps may be ignored. It also illustrates the vice in appellee’s contention that the charge quoted is not subject to objection because instead of following a literal abstraction the same fits itself to the precise case, since the issue of risk is determinable upon basis of the defect alone, when knowledge thereof necessarily implies a knowledge of the danger. Both the charge and appellee’s contention ignore a vital step in the deductive process.

Neither can we concur in the further contention of appellee that it was undisputed, and necessarily assumed by both sides upon trial, that plaintiff’s knowledge of the defective drawhead would necessarily impute knowledge of the danger. To a railroad man, experienced in the train service, it might be imputable, but not to a man whose experience and connection with railroad work was in an entirely different line, and we do not find, as stated in appellee’s brief, that he testified particularly to the danger attending the defect. Referring to the reference which we are given supporting this statement, we find he merely testified to the cause of the sudden stop and fall, and not to any knowledge of the danger which caused it. For the reasons indicated, the charge as given was erroneous, and will require a reversal of the ease.

It is contended by appellee that assumed risk as a defense in bar was not an issue in the case, and therefore the erroneous qualification by the court of this doctrine was harmless. By Act April 24, 1905 (Acts 29th Leg. c. 163), assumed risk as a defense arising from knowledge of a defect and the danger incident thereto is not available when a person of ordinary care would have continued in the service with knowledge of such defect and danger. In Railway Co. v. Mathis, 101 Tex. 342, 107 S. W. 530, it was said by Chief Justice Oaines .that this section practically abolished the distinction between contributory negligence and assumed risk arising frcjm such knowledge. By the Employer’s Liability Act (Laws 1909, p. 279), it was provided that in an action by an employe against a railway corporation contributory negligence would not bar a recovery, but the damages would be diminished by the jury in proportion to the negligence attributable to the employs.

It is therefore asserted that assumed risk, under the act of April 24, 1905, is nothing more than contributory negligence, and by virtue of the Employer’s Liability Act is not available to the defendant as a defense in bar, but merely to diminish the damages, and the court improperly submitted the same as a defense; and, since it was improper to so submit the same, an erroneous qualification was not prejudicial. It may be true that the distinction between the two defenses has been practically abolished, but under the provisions of the Assumed Bisk Statute as originally enacted the defense was an absolute one when a person of ordinary care would not have continued in the service with knowledge of the defect and danger, and we are of the opinion that this effect of the statute was not changed by the provisions noted of the Employer’s Liability Act with reference to contributory negligence.

Under the third assignment, a portion of the charge is criticised as being argumentative and upon the weight of the evidence. It is not so regarded.

In submitting the measure of damage the charge authorized a recovery for the amount expended by the plaintiff for medicines. There is no testimony in the record to show the reasonable value of the medicines used, the plaintiff having simply testified that he paid between $120 and $130 for medicines, and under the decisions the assignment complaining of this phase of the charge must be sustained. Wheeler v. Railway Co., 91 Tex. 356, 43 S. W. 876; Bailway Co. v. Hemphill, 125 S. W. 340; Railway Co. v. Hall, 138 S. W. 434; Railway Co. v. Morris, 45 Tex. Civ. App. 596, 101 S. W. 1038; Railway Co. v. Greb, 132 S. W. 489. This, however, could be cured by a remittitur; and, in any event, the question need not arise upon retrial.

A charge must be considered as a whole, and, so considering same, that portion of the charge complained of under the fifth assignment is not subject to the objections urged,' and we do not think the jury was left in any doubt whatever by the paragraph objected to.

In the petition it is alleged that at the time plaintiff sustained his injuries he was a healthy man. He testified he was 45 years of age at the time, in good health, and strong mentally and physically.

Dr. Stuart, witness for defendant, examined him, and testified that he was suffering from an injured and diseased sciatic nerve; that he suspected he had syphilis in the tertiary stage; that plaintiff’s injury was the exciting cause of the present diseased condition, of the nerve — -in other words, that the injury set aflame an original dormant syphilitic condition, and so aggravated the same as to produce the condition from which plaintiff was suffering; without injury to the sciatic nerve the condition would have manifested itself in some other locality; that the injury operated upon a syphilitic condition and produced the serious results from which plaintiff was suffering. If he did not have and had not had syphilis, the injury complained of, in his opinion, would not have produced a permanent injury to the leg; that the syphilitic condition made him more susceptible to injurious consequences from the injury than he otherwise would have been; that the injury might not have produced these serious consequences without the syphilitic condition, but with that condition it did produce them. If he has not tertiary syphilis, he should recover within 12 months from date of injury under proper treatment. The testimony of two doctors testifying in plaintiff’s behalf negatived the idea that he was in a syphilitic condition.

Upon this phase of the case the jury was instructed:

“If you believe from the evidence that alleged injuries to plaintiff, if any, were not due to the fall in question, but to a syphilitic condition in him or other independent cause or causes, then to that extent you will allow plaintiff nothing therefor.
“Although you may believe from the evidence that plaintiff on account of a syphilitic condition, if such he had, was liable to and suffered alleged injurious consequences from the fall in question which he would not otherwise have suffered, yet this would not prevent him, if your verdict is in his favor; from recovering compensation to the full extent for such injurious consequences, if any, provided you believe from the evidence such were a natural and probable result of the fall in question to one in his physical condition.”

Error is assigned to the last paragraph of the charge quoted allowing compensation for such injurious consequences resulting from the fall in question to one in plaintiff’s physical condition. It is not contended that the same does not properly submit a correct proposition of law, but the sole contention is that it was not authorized by the pleadings.

It is conceded by appellant that damages resulting from injuries operating on a diseased condition can be recovered if the natural result of the wrong, although such injuries would not have resulted but for the diseased condition, but the gist of the defendant’s contention is that they cannot be recovered unless the pre-existing diseased condition is alleged and especially where it is specifically alleged as here that plaintiff was healthy. Seduced to its last analysis, this is the effect of the contention, and we are not prepared to agree with it. That the issue is certainly raised by the pleadings we think clear, as the general denial did this. This puts in issue every material allegation in the petition including the allegation of plaintiff’s healthy condition, and what caused the accident and the consequences alleged to have resulted therefrom, and, since this was raised by the defendant’s pleadings and evidence, it was then the duty of the court to apply the law applicable to the rights of both parties, as it was developed by the evidence.

In Green v. Houston Electric Co., 40 Tex. Civ. App. 260, 89 S. W. 442, this same question was presented in a different form, and it was there remarked by Judge Reese that “healthy” is but a comparative term, and in declining to assent to the doctrine contended for said: “We cannot, however, give our assent to a rule which in its logical application would put upon a plaintiff the danger of being turned out of court if he should not state in his petition every physical weakness or ailment which might be aggravated in its effect by an injury wrongfully inflicted upon him. We cannot find that the doctrine referred to has ever been approved elsewhere; and, while we have not been able to find any case denying it, it is at least persuasive that in a multitude of cases examined it appears that persons have been held to be entitled to recover damages for aggravation of a previously diseased physical condition where the allegations of the petition made no reference to such condition.” This quotation has our entire approval.'

The Hall Case, 114 Mich. 99, 72 N. W. 33, and the Wilkinson Case, 73 Mich. 405, 41 N. W. 490 (the latter discussed by Judge •Reese in the Green Case), cited and relied upon by appellant as supporting its contention that the charge in question was erroneous, are not applicable. In the Wilkinson Case it was held under a declaration alleging'infirmities, caused directly and altogether by the accident, a recovery could not be had for an aggravation of pre-existing infirmities, and in the Hall Case that a recovery of damages would not be allowed for an augmented or aggravated rheumatic condition resulting from the accident because not pleaded. Thus we see the adversely cited cases relate only to an aggravation of an existing infirmity, when the allegation was that the accident had caused the infirmity, and not the aggravation.

Now the charge in question is predicated upon no such theory, but merely authorizes a recovery although plaintiff, on account of a syphilitic condition, was liable to and did suffer injurious consequences from the accident, which he otherwise would not have suffered, the correctness of which as an original legal proposition is not questioned, and which is quite distinct from a recovery for an aggravated syphilitic condition. An extract from the Hall Case, supra, is regarded as so aptly illustrating the unsoundness of appellant’s contention that the same is quoted as follows: “The defendant succeeded in eliciting, upon cross-examination of the plaintiff, that some years before she had rheumatism. It is said that she had rheumatism in her feet, some years before, and that the court ruled that, if she had, it would not preclude her recovery of damages for the injury actually sustained. It was contended that this might have been a correct rule to apply had the rheumatism and its aggravation been alleged in the declaration. We think that it is not required of a plaintiff in an accident case to anticipate all imaginable theories that the ingenuity of counsel may be able to devise, and to set up in her declaration all physical conditions that have existed from remote periods, and that the failure to do so is to deprive her of redress, if any of them come to the surface on the trial. If the defendant could show that the plaintiff’s ailments were not attributable to the accident, it would defeat her recovery or lessen damages; but, if she actually bruised her knee and hip, the fact that she had rheumatism would not preclude recovery for her pain and suffering, attributable solely to the accident, although she was more susceptible to suffering by reason of her rheumatism.”

Special charge No. 4, in so far as proper, was in substance given in the general charge of the court, and its refusal was proper for this reason, as1 well as for the further reason that it was argumentative^

The substance of special charge No. 5 was likewise incorporated in the general charge, and its1 refusal in no manner calculated to prejudice the defendant. The seventh and eighth assignments are therefore overruled.

The ninth assignment reads: “The court erred in overruling the motion for a new trial, because the verdict of the jury was clearly excessive.” This assignment is too general to entitle it to consideration. Railway Co. v. Goodrich, 149 S. W. 1176; Railway Co. v. Geer, 149 S. W. 1178; Clarke v. First State Bank, 150 S. W. 203. Furthermore, in view of a reversal on other grounds, we should refrain from comment upon the amount of the verdict.

Reversed and remanded.

On Rehearing.

With his motion for rehearing herein appellee enters a remittitur of 8,130, the utmost amount testified to as expended for medicines, which cures the error with respect to the measure of damage noted in the original opinion.

In our original opinion we held the court' erred in that portion of his charge wherein the issue of assumed risk was submitted, and that the error required a reversal of the cause. We adhere to the view that the charge was erroneous, but the majority of the court are now of the opinion that the improper qualification of the issue of assumed risk was not reversible error. Under the act of April 24,1905 (article 6645, Revised Statutes of 1911), assumed risk as a defense arising from knowledge of a defect and the danger incident thereto is not available when a person of ordinary care would have continued in the service with knowledge of such defect and danger. The effect of this statute is to merge assumed risk arising from knowledge of a defect and the danger incident thereto into a question of contributory negligence. Railway Co. v. Mathis, 101 Tex. 342, 107 S. W. 530. Under the Employer’s Liability Act (Revised Statutes of 1911, art 6649) contributory negligence of a railway employé does not now bar a recovery, but the damages are to be diminished by the jury in proportion to the amount of negligence attributable to such employé. It therefore logically follows that assumed risk as a defense arising from knowledge on the part of plaintiff of any defect in the drawhead of the car as a defense in 'bar was not an issue in the case, but available only in mitigation of damages as contributory negligence. In Railway Co. v. Grenig, 142 S. W. at page 139, it was held proper in view of the Assumed Risk Statute and Employer’s Liability Act, to refuse a charge submitting the issue of assumed risk in bar where the basis of the plea was knowledge of the defect and danger. The charge of the court submitted the issue of assumed risk arising from knowledge-of the defective drawhead as a defense in bar. Therefore the improper qualification of the doctrine noted in the, original opinion obviously did not operate to defendant’s prejudice, since under no circumstances should it have been submitted in bar. Railway Co. v. Elmore, 35 Tex. Civ. App. 56, 79 S. W. 891; Railway Co. v. Gray, 137 S. W. 729.

The ninth assignment, complaining of the amount of the verdict, is overruled. An examination of the evidence clearly discloses it to be in no wise excessive.

Associate Justice MeKBNZIE adheres to the view that the charge as given constitutes reversible error, and that the motion for rehearing should be overruled. The majority, however, for the reasons indicated, are of the contrary opinion. The motion for rehearing is therefore granted, and, subject to the remittitur above noted, the judgment of the lower court is in all things affirmed.

MeKENZIE, J.

(dissenting). In the majority •opinion granting a rehearing and affirming this cause it is held that assumed risk as modified by the act of April 24, 1905 (article 6645, Revised Statutes 1911), is no longer available as a plea in bar since the passage of the Employer’s Liability Act (article 6649, Revised Statutes 1911). . This upon the theory that in the case of Railway Co. v. Mathis, 101 Tex. 342, 107 S. W. 530, it was said by our Supreme Court that the effect of the article 6645, supra, was to merge assumed risk arising from knowledge of a defect and the -danger incident thereto - into a question of contributory negligence, and that under article 6649, supra, contributory negligence was made no longer a defense as a bar to a recovery, but may be urged for the purpose only of diminishing the amount of damages.

I cannot agree to the process of reasoning as shown in the opinion on rehearing. In the first place, it only requires the reading of the facts in the Mathis Case, supra to convince one that the facts in that case did not involve the application of. article 6645, supra. In Railway Co. v. Grenig, 142 S. W. 135, cited in the majority opinion on rehearing, an examination discloses the fact that the requested charge which the trial court refused upon the issue of assumed risk ignored absolutely the provisions of article 6645, supra, and should have been refused because of that fact. Prior to the passage of the act of April 24, 1905 (article 6645, supra), the defenses of assumed risk and contributory negligence were distinct and independent of each other. In my opinion they yet remain distinct and independent of each other. As said in Railway Co. v. McHale, 47 Tex. Civ. App. 360, 105 S. W. 1149: “It is often difficult to distinguish between assumed risk and contributory negligence when the law applicable to these distinct defenses is sought to be applied to the facts of a particular case. Whenever one is consciously negligent in the doing of an act or in the failure to act, he might -be said to assume the risk of such negligence, but this is not assumed risk as that term is used in the rule of law which exempts the master from liability for injury to the servant due to a cause ordinarily incident to the service in which he is engaged, or from injury due to the dangerous condition surrounding the service, of which the servant had notice, or in the exercise of ordinary care should have known. One may be so careful as to be entirely free from negligence in the manner in which he performs his work, and yet, because of the danger necessarily incident to the work, or due to conditions within his knowledge, or of which he must have known had he exercised ordinary care, he cannot recover for injuries while m the performance of such work on the ground that he has assumed the risk of such injuries.” So it is recognized that the defense of assumed risk rests on the fact that a servant voluntarily exposes himself to danger and thus assumes the risk thereof, while the defense of contributory negligence rests on an omission of duty on the part of a servant, and is available, though the master was negligent where the proximate cause of the injury was the servant’s negligence. The two defenses are based, therefore, upon different principles of law, and by article 6645 limitations or conditions are made by the statute which limitations or conditions are provisions stating when assumed risk is not available as a defense, but, subject to the limitations or conditions therein stated, the principle of assumed risk, as heretofore announced, is left intact, and I do not understand that the statute undertakes to abolish the defense when the conditions as named in the statute are not present which would eliminate it as a defense. Assumed risk as a defense does not partake of the principle of contributory negligence, and for that reason when the defense of assumed risk is available it is not contributory negligence, and,- not being contributory negligence, article 6649 would not be applicable.

The original opinion properly disposes of this cause, according to my views of the law, in that it is admitted in the original opinion, and in the majority opinion on rehearing, that the charge of the court upon the question of assumed risk as applicable to the cause under article 6645 was incorrect, and being incorrect, in that it placed a greater burden upon the defendant than was authorized by said last-named article, the case should be reversed and remanded for a new trial.


author: HIGGINS, J.

text:
    COURCHESNE v. SANTA FÉ FUEL CO. et al.
    (Court of Civil Appeals of Texas. El Paso.
    March 27, 1913.)
    1. Injunction (§ 26) — Staying Suits — Right to Relief.
    Injunction does not lie to stay prosecution of a suit merely because there is no cause of action to sustain it, nor to enjoin assertion of a cross-action where no fraud in prosecuting it is claimed.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 24-49, 54-61; Dee. Dig. § 20.]
    2. Injunction (§ 26) — Staying Suits — Right to Relief.
    That judgments of a justice court or of a county court would be final in certain suits brought in justice court does not authorize the county court' to enjoin prosecution of such suits.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 24-49; 54-61; Dec. Dig. § 26.]
    3. Pakties (§ 54)— Cross-Action — Right to Pboseoute.
    ,, A defendant is entitled to maintain a cross-action to bring in a party who he claims is liable over to him in the event that any judgment be rendered against him.
    [Ed. Note. — For other cases, see Parties, Cent. Dig. § 85; Dec. Dig. § 54.]
    Appeal from El Paso County Cdurt; Ballard Coldwell, Special Judge.
    Action by A. Courchesne against the Santa Fé Fuel Qompany and others. Judgment for defendants, and plaintiff appeals.
    Affirmed.
    Peyton F. Edwards and O. L. Bowen, both of El Paso, for appellant. MteBroom & Scott, of El Paso, for appellees.

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

   HIGGINS, J.

On July 29, 1912, the Santa Fé Fuel Company entered into a contract with Y. A. Bucier by the terms of which Lu-cier obligated himself to quarry and deliver to said company at its lime kilns sufficient rock to supply the same to their maximum capacity; the said Lueier to furnish all necessary teams, labor, material, and facilities for quarrying and transporting said rock, which contract was to continue for a period of two years, but contained a provision giving either party the right to terminate the same by giving 15 days’ notice; Lueier further obligated himself to give bond in the sum of $500 to secure the faithful performance of his obligations under the contract. On the same day Lueier gave bond, with A. Courchesne as surety, and thereafter entered upon the performance of the obligations assumed by him. About the 7th of October, 1912, he abandoned his contract and refused to further perform his obligations thereunder, whereupon Courchesne, as surety, proceeded to fulfill Lucier’s obligations thereunder, and, in accordance with the terms of the contract, gave notice of intention to terminate the same, and in accordance with such notice the obligations of Lueier under such contract terminated on October 26, 1912. At the date Lueier abandoned his contract he was indebted in various amounts to various laborers who had been employed by him in. quarrying and transporting rock, and at said date the Santa Fé Fuel Company was indebted to Lueier upon such contract in the sum of $136.92. It is alleged in the answer of the Santa Fé Fuel Company that when Lueier abandoned his contract he advised his laborers that the company would pay them the various amounts due them, whereupon such, laborers demanded payment of the company, and the company informed them that it did not have sufficient funds on hand belonging to the said Lueier to pay their claims in full, but would prorate among them the amount which was due the said Lueier; that when settlement was made with Courchesne there was due Lueier said $136.92, and there was also due certain moneys to said Courchesne on account of the part performance by him óf such contract; that in making settlement With Courchesne the agent of the company gave to Courchesne a check' for the full amount due Lueier as well as the amount due himself, the amount due Lueier being so paid under the mistaken belief that Cpur-chesne was entitled to collect the same as Lucier’s surety, and overlooking the former promise made by the company to such laborers that it would prorate and pay to them the amount due the said Lueier; that immediately after delivering the check to Cour-chesne, and while he was leaving the premises of the company and before the check had been cashed, the company’s agent stated to him that the payment made to him included the amount due Lueier and demands were being made by laborers of the company for payment of their wages and that the company should be protected against such laborers’ claims by reason of such payment to him, and thereupon Courchesne agreed to protect the company against such labor claims to the extent of the payment made to him, and relying upon such promise the company permitted Courchesne to cash .said check and receive payment of the moneys due to Lueier.

Eight suits were instituted in the justice court before Justice of the Peace James J. Murphy by eight of said laborers against the company for the recovery of the several amounts due them for labor by Lueier, the amount involved in each of said suits being less than §20, and were numbered 1,760, 1,761, 1,762, 1,763, 1,764, 1,765, 1,766. and 1,767 upon the docket of said court; and like suits were filed by laborers in the justice court before Justice of the Peace E. B. Mc-Clintock in causes numbered 3,216, 3,217, 3,218, 3,219, 3,220, and 3,221 upon the docket of said court, the amount involved in cause No. 3,216 being $3.25, and in the remaining causes in the court of Justice Mc-Clintock being for various amounts exceeding $20 and less than $50. The total amount sued for in the causes pending in Justice Murphy’s court being $104.99, and the total amount sued for in Justice McClintoek’s court being $210.60. In said causes Nos. 1,760, 1,766, and 1,767 the company made Courchesne a party defendant, and by way of cross-action over against him set up the contract- between it and Lueier above described and the execution of above-mentioned bond with Courchesne as surety, and averred that if a recovery was had by the plaintiffs in such suits such recovery would be for labor furnished to Lueier in the performance of his obligations under his contract to furnish rock, and such recovery to that extent would constitute a breach of his contract for which Courchesne would be liable over to the company upon said bond. And in such cross-' action the company further set up the facts above detailed with reference to Lucier’s abandonment of his contract, Courc-hesne’s performance of Lucier’s obligations thereunder until October 26, 1912, and the settlement made upon that date by the company with Courchesne and said payment to him of the sum of $136.92, and Courchesne’s agreement in consideration of such payment to protect the company against loss or damage on account of such laborers’ claims for wages due by Lueier; and by reason of these facts also it was alleged that Courchesne was liable over to the company.

On December 21, 1912, Courchesne filed suit in the county court against the Sante Fé Fuel Company and Justices James J. Murphy and E. B. McClintock, alleging the execution of above-described contract between Lueier and the Sante Fé Fuel Company and the execution and delivery of above-mentioned bond; the refusal of Lueier on October 7, 1912, to further proceed with the performance of his contract, and of the assumption of Courchesne of the performance of Lucier’s obligations thereunder; the giving of the notice of intention to terminate the contract, and of his performance of the contract up to the date of its termination on October 26th. The filing of the above-mentioned suits wp.s likewise alleged, and that in said causes.. Nos. 1,760, 1,766, and 1,767, pending in the court of Justice Murphy the company had filed cross-actions over against Courchesne for the recovery of such sum as the plaintiffs in said several suits might recover against the company; that in said cross-actions the company sought to hold Courchesne liable on said $500 bond, and also upon the alleged promise made by Courchesne in connection with his receipt of $136.92 money due the said Lueier. The.nature of such cross-actions is stated above, and copy thereof was attached to and made a part of the petition. It was further alleged that the company intended to file similar cross-actions against Courchesne in each of the remaining suits pending in Justice Murphy’s court and in each of the six suits filed in the court of Justice McClintock; that in the suits pending before the justices there was no claim made of any lien in favor of plaintiffs thereunder, and the same was simply for the recovery of wages alleged to be due said several plaintiffs by the company; that the original contractor, Lueier, was not made a party to the suits, nor any claim made by plaintiffs that Lueier was indebted to them; that Courchesne was not liable upon his bond to pay any indebtedness incurred by the Sante Fé Fuel Company for labor; and that the receipt- by Courchesne of said $136.-92 would not impose any liability upon him to reimburse the company for any such sums due by it. It was further alleged that the company would only have the right to file suit against Courchesne for the recovery of the total amount due by reason of his obligation on the $500 bond and by reason of the payment of said $136.92, and had no right to split up its cause of action in 14 separate suits, as it was attempting to do by the filing of such cross-actions, and..., that the same were vexatious suits, and that if the company was permitted to file such cross-actions in the suits pending in Justice Murphy’s court it might result in irreparable injury because the amount in controversy was less than $20 in each suit and the judgment would be final; and that in the six cases pending before Justice McClintock a recovery upon the cross-actions would work irreparable injury because the amount in controversy in each case was less than $100, and Courchesne could not appeal the cases to the Court of Civil Appeals, but judgments in the county court on appeal would be final and conclusive. It was further alleged that the company had voluntarily paid to Courchesne the said sum of $136.92, and it was not paid to him through any mistake, but was paid to him as the representative of Lueier. There is a further general allegation, again asserting that Courchesne was not liable upon his bond or upon any contract made by him in connection with the receipt of said $136.92 whereby the company e.ould rightfully have any claim against him on the cross-actions asserted in the justice court, wherefore Co.ur-ehesne prayed the issuance of a writ of injunction restraining the company and Justice Murphy from proceeding to hear and determine the cross-actions filed in causes numbered 1,760, 1,766, and 1,767, and also restraining the company from filing cross-actions in all of the remaining suits pending upon the dockets of said justice courts, and restraining Justices Murphy and MeOlintock from filing interpleaders and cross-actions in such remaining suits and from hearing or determining the same. A temporary writ of injunction was issued, as prayed for, and served upon the defendants, and thereafter, on January 3, 1913, the company filed its answer and motion to dissolve, and on January 4, 1913, Justices Murphy and McClintoek filed their motions to dissolve. On January 27, 1913, the motions to dissolve came on for hearing upon the demurrers and sworn answers of the defendants, and the same was by the court dissolved, from which order of dissolution this appeal is prosecuted. It is unnecessary to state in detail the sworn answers of the defendants, since we are of the opinion the petition for injunction is subject to general demurrer.

It is apparent from the face of the petition that one of the grounds relied upon for the issuance of the writ of injunction is that the causes of action asserted by the company in said cross-actions ,are without merit. There is no allegation or intimation that the assertion of the cross-action is in any wise tainted with fraud, or that any fraud would be perpetrated in the hearing and determination of issues raised by such cross-action. An injunction is not properly granted to stay the prosecution of a suit merely because the plaintiff has no cause of action. Chadoin v. Magee, 20 Tex. 477. And there is no reason to infer that the justice courts will not respect any defense which Courchesne may have to the cross-actions set up against him. Railway Co. v. Bacon, 3 Tex. Civ. App. 55, 21 S. W. 783. Upon the contrary, it would be wholly unwarranted for the county court to assume that those courts would deny to litigants before them any rights to which they are entitled.

Another ground relied upon for the issuance of the writ is the fact that in some of the suits the judgment rendered in the justice court would be final, and that in others the judgment rendered in the county court would be final and the cases could not be appealed to the Court of Civil Appeals.

These facts certainly present no authority for the county court to interfere with the justice court in the exercise of a jurisdiction conferred upon and confided to it by the Constitution and laws of this state. It has been seen fit to limit the right of appeal in certain cases, and no other court has the right to review judgments rendered or to be rendered in such cases under the guise of'an injunction proceeding. Flow v. Railway Co., 149 S. W. 1081; Railway Co. v. Dowe, 70 Tex. 1, 6 S. W. 790; Railway Co. v. Cleburne, etc., Co., 37 Tex. Civ. App. 334, 83 S. W. 1100. Neither does the fact that the jurisdiction of the county court is final in some of the cases present any reason why proceedings should be stayed. It could with equal propriety be urged that the district court should restrain the prosecution of a suit in the county court because the judgment of the Court of Civil Appeals upon appeal would be final.

Neither is the Sante Fé Fuel Company splitting up its cause of action and filing separate suits for the purpose of vexing and harassing Courchesne. The Fuel Company is not voluntarily initiating the proceedings out of which the cross-actions arise, and they are merely seeking in each one of the eases to bring in a party who they claim is liable over to them in the event any judgment is rendered against them, and it would be unreasonable and unjust to require them to wait until all of the suits had been disposed of before they would have the right to proceed against the party who they assert is liable over to them. Upon the contrary, it is right and proper that in each of those suits Courchesne should be vouched in and his liability upon the asserted cross-action then and there determined.

Nothing herein said is to be in any wise construed as expressing any opinion upon the merits of such cross-actions.

Affirmed.


author: FLY, C. J.

text:
    CALHOUN v. KIRKPATRICK et al.
    (Court of Civil Appeals of Texas. San Antonio.
    March 26, 1913.)
    1. Justices of the Peace (§ 129)—Judg-ment— Collateral Attack.
    An improper postponement of a case of forcible detainer in justice’s court for more than six days was a mere irregularity, which would not affect the justice’s jurisdiction, so as to make the judgment subject to collateral attack in an action between the parties for breach of a rent contract; the justice having jurisdiction of the person and subject-matter.
    [Ed. Note.—For other cases, see Justices of the Peace, Cent. Dig. §§ 408-411; Dec. Dig. § 129.]
    2. Landlord and Tenant (§ 291)—Nonpay-ment oe Rent—Eviction—Crops.
    Where the tenant failed to pay the rentals reserved in a lease of irrigated garden land, and was ejected in forcible detainer by the landlord, the tenant could not recover the value of the crops growing on the land when evicted.
    [Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. §§ 1217-1241, 1243-1269; Dee. Dig. § 291.]
    Appeal from District Court, Bexar County; A. W. Seeligson, Judge.
    Action by L. R. Calhoun against J. H. Kirkpatrick and others. From a judgment for defendants, plaintiff appeals.
    Affirmed.

      Leonard Brown, and W. S. Anderson, both of San Antonio, for appellant. Houston, Boyle & Storey, of San Antonio, for appel-lees.

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

   FLY, C. J.

This is a suit for damages instituted by appellant against J. H. Kirkpatrick and A.. H. Jones, executor of the estate of B. L. Naylor, deceased, which he alleged accrued to him by reason of a breach of a rental contract by appellees, and the ouster of appellant from certain irrigated garden lands, known as the Barnes tract, between the Frio and Somerset roads in the city of San Antonio, and the conversion and appropriation of his crops growing thereon, whereby he claimed to have been damaged in the sum of $5,933.80. Appellees pleaded in bar of the suit a judgment in the justice’s court in a forcible detainer suit, wherein appellees recovered possession of the said premises from appellant, and were placed in possession of the same by a writ of possession issued out of said justice’s court on July 25, 1910. That was the date fixed by appellant in his pleadings on which he alleged that he had. been unlawfully dispossessed of the property. Under instructions from the court, a verdict was returned by the jury for appellees.

The evidence showed, without contradiction, that on April 13, 1910, appellees instituted an action of forcible detainer of the property described against appellant in the justice’s court of precinct No. 1, Bexar county, and on June 24, 1910, judgment was rendered in said court against appellant, adjudging the premises to appellees; and on July 25th appellant was regularly and legally dispossessed of the premises by the constable, acting under a writ of possession issued out of said justice’s court.

Through the first and sixteenth.assignments of error it is claimed that the judgment was void, because it was not tried on the day named in the citation for appellant to appear, or on the day to which it may have been postponed for good cause supported by affidavit. If there were anything in the record that indicated that the cause was not postponed in accordance with the statute, that would not render the judgment ■•oid, and the irregularity could not be inquired into in a collateral proceeding, as this undoubtedly is. The justice’s court had jurisdiction of the person of appellant and of the subject-matter, and the judgment rendered in that court cannot be collaterally attacked, however erroneous it may be. The improper postponement of a case of forcible detainer for more than six days could not affect the jurisdiction of the justice’s court. Clayton v. Hurt, 88 Tex. 595, 32 S. W. 876. As said in that case: “Where a court of general jurisdiction, in the exercise of its ordinary judicial function, renders a judgment in a cause in which it has jurisdiction over the person of the defendant and the subject-matter of the controversy, such judgment is never void, no matter how erroneous it may appear from the records or otherwise to be.” In that case, as well as .others, justice’s courts are held to be courts of general jurisdiction, and that in the trial of forcible entry and detainer eases they are in the exercise of ordinary judicial functions. Cohen v. Moore, 101 Tex. 45, 104 S. W. 1053. Postponing the ease for more than six days was a mere irregularity, which could not be used in a collateral proceeding as a basis for an attack on the judgment, even if it could have been used in a direct attack, which we strongly doubt. The matters pleaded by appellant to show a waiver of their right of eviction by appellees were not sufficient for that purpose, and the court did not err in' sustaining the exceptions to the supplemental petition. Appellant was permitted to swear to the facts, which he claimed showed a waiver of rights under the judgment, but they fail to show such waiver. Because ap-pellees were lenient towards appellant, and considerate of whatever rights he may have claimed, does not tend to prove a waiver.

When appellant was evicted from the land of appellees, he had no right whatever to the crops he may have planted thereon, no matter whether of much or little value. The judgment of eviction absolutely determined all rights claimed in connection with the land in favor of appellees. At the time the forcible detainer suit was filed the crop, if planted, was in a very immature condition, and, if pending the suit appellant expended his labor thereon, he did so at his own risk. Rankin v. Hooks, 81 S. W. 1005; Samson v. Rose, 65 N. Y. 411. In the New York case it was held: “When the landlord actually took possession at the termination of the action, it would relate back to its commencement. The effect of the entry by a lessor, where he may lawfully make it for a breach of condition, is to determine the estate of the tenant altogether, and wholly revest the same in the lessor or his assigns. The property is held on the same conditions as if the estate to which the condition was annexed had not been granted.” Again, it is said in the same case: “It is a perfectly well-settled rule that a tenant has no right to emblements when his lease is terminated by a paramount title. * * * The lessees would have had no equitable claim to emblements, as the termination of the estate would have resulted from their own act in not making payment of the rent. The whole law of em-blements is derived from a rule of public policy. Its object was to encourage agriculture by giving to such tenants as held a possession terminable upon some uncertain event a return for the capital and labor laid out and expended upon the land of another. There is no color for the view that any such allowance can be made in favor of one who has a fixed term, or whose estate terminates (though indefinite in its original duration).by his own act.” Appellant was the tenant of appellees and his estate was terminated by his failure and refusal to pay the rent. He was not entitled to the crops on the land. Underhill, landlord & Tenant, pp. 1330, 1331; Tiffany, Land. & Ten. pp. 1406-1408; Taylor, Land. & Ten. § 535.

The court did not err in instructing the jury to return a verdict for the appellees. There was nothing presented by the evidence that would justify a verdict for appellant. The justice’s court judgment adjudged the possession of the land- to appellees, and that carried possession óf the crops. • By that judgment appellant was adjudged a trespasser on the land. There was no testimony that tended to show that appellees used the molasses that appellant left on the land.

This is a plain case of a tenant, who agreed to pay money rent each month, refusing to pay the same, and seeking to recover damages for his eviction by and through a legal writ from the owners of the land. They did not act arbitrarily or in an oppressive manner towards appellant, but bore with him for a long while, and, finding at last that he would not pay his rent, resorted to the law to obtain their rights. None of the assignments of error is meritorious, and all of them are overruled.

The judgment is affirmed.


author: MOURSUND, J.

text:
    NEWMAN v. SAN ANTONIO TRACTION CO.
    (Court of Civil Appeals of Texas. San Antonio.
    April 2, 1913.)
    1. Release (§ 34)— Construction.
    An agreement in a. release for personal injuries in consideration of a sum named, and the further assumption of “Dr. T., drug and nurse bills,” was not an agreement to pay all the medical bills for services which might be necessary thereafter, or bills not existing when the contract was made.
    [Ed. Note. — For other cases, see Release, Cent. Dig. § 82; Dec. Dig. § 34.]
    2. Conteaots (§ 152) — Construction.
    The language used in a contract should be given its full and usual meaning.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 732, 733, 738; Dec. Dig. § 152.]
    3. Contracts (§ 159) — Construction — “Bills” — “Assumption.”
    The word “bills,” in its ordinary, primary meaning, means accounts for goods sold, services rendered, or work done, and the words “assumption of” mean the taking upon one’s self an obligation to pay such bills, so that a contract to assume a bill implies that the debt or bill exists.
    [Ed. Note. — For other cases, see Contracts, Dec. Dig. § 159.

    For other definitions, see Words and Phrases, vol. 1, pp. 588, 589, 775-778; vol. 8, p. 7590.]
    4. Release (§ 34) — Construction—Assumption op Obligations Incurred.
    Where a contract for the release of personal injuries provided, in effect, that the re-leasee would pay all medical bills actually incurred, no liability was imposed upon it by the fact that releasor could not obtain credit for such services.
    [Ed. Note. — For other cases, see Release, Cent. Dig. § 82; Dec. Dig. § 34.]
    5. Release (§ 34)— Construction — Assumption of Liabilities — Damages for Breach.
    Where the releasee, in a contract of release for personal injuries, contracts to pay medical bills actually incurred by releasor, the only damages recoverable from its breach by releasee are those arising from failure to pay bills 'and not those arising from failure to furnish necessary medical services to releasor.
    [Ed. Note. — For other cases, see Release, Cent. Dig. § 82; Dec. Dig. § 34.]
    Appeal from District Court, Bexar County; A. H. Seeligson, Judge.
    Action by M. W. Newman against the San Antonio Traction Company. From a judgment for defendant, plaintiff appeals.
    Affirmed.
    John Sehorn, of San Antonio, for appellant. . Templeton, Brooks, Napier & Ogden, of San Antonio, for appellee.

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

   MOURSUND, J.

Appellant sued appellee for damages for an alleged breach of a contract of settlement made between them to compensate appellant for personal injuries which she alleged she sustained by reason of the negligence of appellee. The answer consisted of demurrer, seven special exceptions, general denial, and plea that defendant had complied with the terms of the contract of settlement made between plaintiff and defendant. The court sustained the special exceptions, and plaintiff declined to amend, whereupon the court sustained defendant’s general demurrer and dismissed the suit.

By the first assignment of error appellant attacks the ruling of the court in sustaining the general demurrer to the petition. After alleging how plaintiff became injured and that the same was occasioned by the negligence of defendant, it is further alleged that on May 6, 1907, an agreement was made by the parties by which, in settlement of the damages sustained by plaintiff by reason of said injuries, defendant, in addition to paying plaintiff $275 cash, as set forth in such agreement, also “assumed the payment of doctor bill of Dr. Triece, drug and nurse bills.” ' The other material allegations read as follows: “By the use of the words ‘assumption of doctor bill of Dr. Triece, drug and nurse bills,’ as set forth in said agreement of settlement, it was contemplated by the parties thereto, and it was intended thereby, to bind the defendant, and the defendant did in fact thereby bind itself, to pay in full the bill of Dr. Triece for medical services theretofore rendered plaintiff and for drug and nurse bills theretofore incurred by plaintiff, and in addition thereto such other and further medical bills for services that might be thereafter necessary for plaintiff on account of said injuries, and such other and further nurse and drug hills as might thereafter be necessary for plaintiff on account of said injuries until such time as plaintiff should have fully recovered from the effects of the injuries inflicted upon her when attempting to alight from said car as aforesaid, a copy of which said contract of agreement is hereto attached, marked ‘Exhibit A’, and made a part hereof. Plaintiff avers that thereafter and during the remainder of said month of May, 1907, and for the months of June, July, August, and September, 1907, the said Dr. Triece rendered plaintiff medical services on account of injuries so inflicted upon her in attempting to alight from said ear, and during the same period plaintiff incurred bills for drugs and nursing, rendered necessary by reason of her said injuries so sustained in alighting from said ear, all of which said medical bills, drug bills, and nurse bills the defendant paid and discharged in pursuance of said contract of settlement so made by it and plaintiff; but plaintiff avers that on, to wit, about the 30th day of September, 1907, she had not recovered from the effects of the injuries so sustained by her in alighting from said ear, and at that time, and ever since that time down to the filing of this suit, plaintiff then required further medical attention, drugs, and nursing, and she yet requires further medical attention, drugs, and nursing during the remainder of her life; but, notwithstanding this, plaintiff avers that the defendant then and there, to wit, said 30th day of September, 1907, notified plaintiff that it declined and refused to pay any • further medical bills, drug bills, or nursing bills, and repudiated the aforesaid contract of settlement so made between it and plaintiff, and declared that it would no longer pay for medical bills, nurse bilis and drug bills, necessary for plaintiff as a result of the injury so sustained by her in attempting to alight from said car. Whereby plaintiff avers that defendant has breached its said contract and agreement of settlement, and has become liable and bound to pay to plaintiff the reasonable value of such medical bills, drug bills, and nurse bills as shall be necessary for plaintiff, until such time as plaintiff shall have recovered from the effects of her injuries so sustained in attempting to alight from said car; and plaintiff avers that said injuries are permanent, and she will suffer from the same during the remainder of her life, and during the remainder of her life it will be necessary for her to have the medical attention, drugs, and nursing contemplated in said contract of settlement. Plaintiff further avers that the reasonable value of such medical attention, drug bills, and nursing bills during the remainder of her life is the sum of $20,000. Plaintiff avers that, nowithstanding it was necessary that she should have had the attention of a physician and nurse and medicines to alleviate her physical and mental pain and suffering she endured consequent upon the injuries so inflicted upon her, she yet was without means and wholly unable to pay for or to obtain medical attention or a nurse or medicines to so alleviate her physical and mental pain and suffering, whereby, and by reason whereof, plaintiff suffered additional physical and mental pain as a result of her said injuries, which she otherwise would not have done had defendant complied with its said contract and furnished her such medical attention, nursing, and medicines as were necessary, whereby plaintiff avers she has been damaged in the further sum of $10,000 on account of such additional and mental pain she has suffered and will continue to suffer hereafter.”

The material portions of the release signed by appellant read as follows: “Know all men by these presents, that I, Mrs. M. W. Newman of the county of Bexar and state of Texas, for and in consideration of the sum of $275 cash in hand, and the further assumption of doctor bill of Dr. Triece, drug bill and nurse bill, to me in hand paid by the San Antonio Traction Company, of the state aforesaid, the receipt of which is hereby acknowledged. * * * It is expressly understood that no promise, agreement or consideration of any kind or character whatsoever, except the consideration herein stated, has entered into or formed any part of the consideration for this instrument.”

Appellant contends that the language, “and the further assumption of doctor bill of Dr. Triece, drug bill and nurse bill,” is ambiguous, and by it was meant that defendant bound itself to pay in full the bill of Dr. Triece,- the drug and nurse bills, and also bound itself to pay all further medical bills, nurse and drug bills which might thereafter be necessary for plaintiff on account of the injuries mentioned in the contract. We fail to see how the words “bill of Dr. Triece” could be construed to mean bill of Dr. Triece and all other medical bills that might thereafter be necessary. In fact, it appears reasonable that, if it was intended to cover all future medical bills, the contract would not have been drawn so as to limit the defendant’s obligation to the bill of only one physician. It also appears to us that, if bills of the character mention'ed in the contract were in existence at the time of its signing, the words used therein would naturally be construed as referring to such bills, and no ambiguity would exist such as would authorize matters outside of the contract to be considered in arriving at the meaning of the parties. The contract shows that approximately eight days had intervened between the time of the injury and the date of such contract, which fact, in connection with the nature of the injuries stated, raises, to say the least, a strong inference'that medical bills, drug bills, and nurse bills bad accrued at tbe time tbe contract was made. Nor is this inference rebutted by any allegation of tbe petition; in fact, it is admitted that sucb bills as were described in tbe contract bad accrued at its date.

Tbe language used should be given its ordinary and usual meaning.

Tbe word “bills,” in its ordinary, primary sense, means accounts for goods sold, services rendered, or work done, and by tbe words “assumption of” is meant that defendant took upon bimself tbe obligation to pay sucb bills. A contract to assume a debt or bill carries with it tbe idea that tbe debt or bill exists; but, even if a contract provided for tbe assumption of bills then accrued or thereafter accruing, it would still be a promise to take up and satisfy tbe obligations of tbe person making tbe bills, and sucb obligations would have to be created before a contract to assume would create any liability. We are of tbe opinion that tbe contract should be construed as referring only to tbe bills in existence at tbe date of sucb contract, and that the courts are not authorized to add to it an important clause; in fact, one so important that any person making a contract would ordinarily regard its mention as of tbe utmost importance. However, even if tbe words were construed to mean bills of tbe character mentioned then accrued or thereafter accruing, yet, before any liability upon the part of defendant would attach, it would have to be alleged and proved that bills of tbe character named bad accrued. Plaintiff does not allege that any bills were incurred by her which remain unpaid by defendant, but seeks to recover $20,000 for alleged breach of tbe contract, basing her claim upon an estimate that such amount would cover the medical services, drugs, and nurses’ services which she ought to have during the remainder of her life.

She alleged her inability to incur bills; however, as tbe contract contemplated that bills should be incurred before any promise to pay attached, the same cannot be changed by reason of tbe fact that plaintiff cannot get any one to trust her; no sucb contingency was provided for, and, if plaintiff deemed it necessary to provide therefor, she should have made a different contract.

Nor can tbe repudiation of tbe contract by defendant change its terms. It remains a contract to pay bills, and the damages recoverable for a breach thereof are those which arise from a failure to pay bills, and not those arising from failure to furnish all necessary medical services, drugs, and nurses’ services.

We conclude that the court did not err in sustaining tbe general demurrer for two reasons; (1) Because the contract in our opinion relates to bills accrued at tbe time, and is not ambiguous so as to authorize proof of an intention to include future bills. (2) Because plaintiff declined to amend so as to allege bills bad been incurred and to describe tbe same, and tbe court was authorized to bold, that, on account of tbe absence of sucb allegations, no cause of action was alleged even if tbe contract was construed to include future bills of tbe character described therein.

Tbe judgment is affirmed.