author: RICE, J. A. G.

text:
    KANSAS CITY, M. & O. RY. CO. OF TEXAS et al. v. HARRAL.
    (No. 5796.)
    (Court of Civil Appeals of Texas. Austin.
    Oct. 17, 1917.
    .Rehearing Denied Dec. 5, 1917.)
    1. Courts i&wkey;97(5) — Former Decisions as Authorities — Decisions oe Federal Courts.
    The decisions of the federal courts arc controlling on a state court in determining whether a federal statute had taken effect at the time an interstate shipment was made.
    2. Statutes <s&wkey;255 — Time oe Taking Effect.
    The Cummins amendment to the Interstate Commerce Act approved by the President March 4, 1915 (Act Cong. March 4, 1915. c. 176. 38 Stnt. 1196 [U. S. Comp. St. 1916, §§ 8592, 8604a]), and which by the terms of section 2 was to take effect and bo in force from 90 days after its passage, was in effect when a shipment was made on June 2, 1915, as the date of the passage of the act must be included in computing the time when the act became operative.
    3. Trial &wkey;>202 — Instructions — Preparation — Duty of Court.
    It was not improper for the court to adopt as its main charge a charge prepared by plaintiff’s counsel.
    4. Trial <&wkey;263 — Requested Instructions— Presentation and Allowance.
    That special charges requested by plaintiff were prepared, filed, and marked, “Given,” on the evening before they were read to the jury was not error, where defendants wore afforded ample opportunity to file objections before the charges were read. '
    5. Appeal and Error <&wkey;662(3) — Bill of Exceptions — Conclusiveness.
    Though the bill of exceptions showed that after the jury had retired to deliberate they returned into court and asked a further charge, and that the court called their attention to the written charge and made some explanation in answer to the jury’s question, the court’s statement therein that he gave no additional instructions was controlling.
    Appeal from District Court, Tom Green County; J. W. Timmins, Judge.
    Action by A. G. Harral against the Kansas City, Mexico & Orient Railway Company of Texas and others. Judgment for plaintiff, and defendants brings error.
    Affirmed.
    H. S. Garrett, of San Angelo, for plaintiffs in error. Blanks, Collins & Jackson, of San Angelo, for defendant in error.
   RICE, J. A. G.

Harral, defendant in error, plaintiff in the court below, brought this suit against the Kansas City, Mexico & Orient Railway Company of Texas, and the Kansas City, Mexico & Orient Railway Company of Kansas, defendants in the court below, to recover damages alleged to have been sustained to a shipment of sheep from Girvin, Tex., to Kansas City, Mo., claiming injury thereto by reason of delay, rough handling en route, as well as damage to the sheep by reason of insufficient and inadequate feed pans at Altus, Okl., where the sheep were unloaded for rest, feed, and water. Defendants, after specific denials, interposed in defense that the shipment was delayed by reason of an unprecedented flood, which washed out the bridges along its line of railway north of Altus; and further pleaded that the shipment, which was an interstate transaction, went forward under a bill of lading or live stock contract,- wherein, in consideration of a reduced rate, it was provided, first, that no recovery for damages should be allowed unless the suit was brought within 91 days after the cause of action accrued, and, second, no recovery should be had for the value of the sheep in excess of $3 per head in case of total loss, and, in case of injury or partial loss, to the proportionate amount of such valuation. The ease was. tried before a jury on special issues, and resulted in a verdict and judgment in favor of-plaintiff for the sum of $600, from which this, writ of error is sued out.

The court sustained plaintiff’s demurrers-, to the last. two defenses urged by defendants, and this ruling is assigned as error by-them on the ground that such stipulations-were lawful under the Chrmack amendment, to the Hepburn Act (U. 8. Comp. St. 1916, §§. S604a, 8604aa), which they claim was then-in force, while plaintiff insists that both of-such stipulations were unlawful and void un-. der the provisions of the Cummins amend-, ment to the Interstate Commerce Act, pass-, ed March 4, 1915, which permits a recov-. ery' for full value! for such loss and injury’ any time within two years; but it is seriously contended by defendants that the last act was not operative on June 2, 1915, the date of such shipment. The President approved this amendment to said act on March 4, 1915. The second section thereof states “that this act shall take effect and be in force from ninety days after its passage.” 38 Stat. 1197.

If the day of the passage of the act is to. be excluded in computing the time, then defendants are right; but, if it is to be included, then the act became operative and in full force and effect on the 1st of June, 1915. There is some contrariety of opinion in our-state on this subject, but it seems that the. federal courts have held that the date of the. passage of the act shall be included within the count. See Arnold v. United States, 9 Cranch, 104, 3 L. Ed. 671; Lapeyre v. United States, 17 Wall. 191, 21 L. Ed. 608; Taylor v. Brown, 147 U. S. 644, 13 Sup. Ct. 549, 37" L. Ed. 315; Leidigh Carriage Co. v. Stengel, 65 Fed. 637, 37 C. C. A. 210; United States v. O’Neill (C. C.) 19 Fed. 567; McGinley v. Laycock, 94 Wis. 205, 68 N. W. 871; Louisville v. Savings Bank, 104 U. S. 469, 26 L. Ed. 775; State v. Asbury, 26 Tex. 82.

In view of the fact that this was an interstate shipment and involves the construction of a federal statute, we think that the federal rule for computing the- time when this amendment should become effective must control our decision.

In Arnold v. United States, supra, the facts show that on July 1, 1812, Congress passed an act levying additional taxes and duties on all goods, wares, and merchandise thereafter imported into the United States, such to be collectible “from and after the passage of this act.” Act Cong. July 1, 1812, c. 113, 2 Stat. 769. On the same day a brig arrived within the limits of the United States, and sought to be relieved from the duties imposed by the act in question. In holding that the tariff must be paid under the terms of the new act, Justice Story announces the following rule:

“The material facts are that the brig arrived within the limits of the United States on the 30th day of June, 1812, and within the collection- district of Providence on the 1st day of July, 1812. On the 2d day of July an entry was duly made at the custom house, and the present bond was then executed.
“The principal question which has been argued is whether on these facts the goods are liable to the payment of the double duties imposed by the act of the 1st day of July, 1812 [chapter 112]. That act provides ‘that an additional duty of 100 per cent, upon the permanent duties now imposed by law, etc., shall be levied and collected upon all goods, wares and merchandises which shall, from and after the passing of this act, be imported into the United States from any foreign port or place.’ It is contended that this statute did not take effect until the 2d day of July; nor, indeed, until it was formally promulgated and published. We cannot yield assent to this construction. The statute was to take effect from its passage; and it is a general rule that, where the computation is to be made from an act done, the day on which the act is done is to be included.”

In Leidigh Carriage Co. v. Stengel, supra, is found the following- statement of the rule: Ou November 1, 1898, Stengel and other creditors of the carriage company filed an involuntary petition in bankruptcy against such company in the District Court of the Southern District of Ohio. Section 71 of 'the Bankruptcy Act ax>proved July 1, 1898 (U. S. Comp. St. 1916, § 9654 note), provides as follows:

“This act shall go into full forco and effect upon its passage: Provided, however, that no petition for voluntary bankruptcy shall be filed within one month from the passage thereof, and no petition for involuntary bankruptcy shall be filed within four months of the • passage thereof.”

In disposing of the case, Mr. Justice Taft uses the following language:

“It is contended that under this language no petition for involuntary bankruptcy could be filed before the 2d day of November, 1898. Nothing has been introduced into the record, or otherwise brought to the attention of the court, to show at what hour of the day of July 1, 1898, tho bankruptcy act was approved by the President. In the absence of such a showing, it is presumed to have been approved on the first minute of the day of July 1, 1898. Arnold v. U. S., 9 Crunch, 104 [3 L. Ed. 671]; Lapeyre v. U. S., 17 Wall. 191-198 [21 L. Ed. 606]; In re Welman, 20 Vt. 653 [Fed. Cas. No. 17,407]; In re Howes, 21 Vt. 619 [Fed. Cas. No. 6,788]; U. S. v. Norton, 97 U. S. 164 [24 L. Ed. 907]; In re Richardson, 20 Fed. Cas. 699; Arrowsmith v. Hamering, 39 Ohio St. 573; Tomlinson v. Bullock, 4 Q. B. Div. 230. * * *
“The cases in which it has been permitted to show by evidence, and by, records of which the court takes judicial notice, exactly the hour and the minute of the day when a bill is passed, are cases where the effect of the ordinary presumption that the act is approved upon the first minute of the day of its approval would have been to make the legislation retroactive, and" therefore harsh and unjust. It is doubtful whether, in a case like the present, where the date at issue, is four months after the passage of the bill, it should be permitted to go into evidence to show the exact minute and hour of the day when the bill was approved. We are inclined to think that in such a case, where there is no retroactive effect possible, the court should hear no evidence upon the point, but should, in order to secure certainty, hold the presumption that the act was approved on the first moment of the day of its date to be conclusive.
“It is, however, not necessary for us to decide this question, because, in the absence 'of any proof as to the hour and minute when the bill was approved, the presumption must be given effect. This is abundantly established by the authorities already cited. Calculating four months, therefore, from the beginning of the day of July 1st, the four months was complete upon the ending of October 31st, and before the beginning of November 1st following. Hence the petition of petitioners below was filed in time.”

In the case of Chicago v. Smyth, 94 Iowa, 401, 62 N. W. 792, it is said:

“We next inquire as to the proper construction to be given to the words ‘from and after April 1, 1893,’ as written in this contract. ⅜ * * The [earned district judge, after noting that the courts have differed in their construction, of the words ‘from and after,’ correctly states the rule to bo as sustained by the weight of authority, ‘that if it is from an act done it is inclusive, but if from a day it is exclusive.’ This statement of the rule is based upon reason as well as authority. If it is from an act done, the time commences immediately upon the act being done. We have a familiar illustration in legislative enactments which are to take effect from and after their passage, or from and after publication. In the case of Arnold v. U. S. [47 U. S. 494], 13 Sup. Ct. 403 [37 L. Ed. 253], the question was whether the additional duties imposed by an act passed and which took effect on July 1} 1812, were chargeable upon the cargo of a ship that came within the jurisdiction of the United States, and within one of its collection districts, on the 1st day of July, 1812. The court says: “The statute .was to take effect from its passage, and it is a general rule that, where the computation is to be made from an act done, the day on which the act is done is to bo included..’ It was held that the goods were subject to the additional duty. * * * Mr. Bishop, in his work on- Contracts (section 1343), states the rule thus: ‘Where time is computed from an act done, the general rule is to include the day. Where it is computed from the day of the act done, the day is excluded.’ ”

Mr. Justice Harlan, in Louisville v. Bank, supra, quotes with approval the doctrine announced in Arnold v. U. S., 9 Cranch, 120, 3 L. Ed. 671.

Adopting the view expressed by the eminent jurists above stated, we conclude that the date of the passage of the act must he included in computing the time when the act in question will become operative. If this is done, then this act was in full force and effect on the 1st of June, 1915, and had controlling effect on this shipment, for which reason this assignment is overruled.

Counsel for plaintiff prepared and submitted to the court a charge, which was adopted by it as the main charge and given in charge to the jury. Defendants contend that this was error, in that the law requires the court to charge the jury, which they insist means t-hat the court itself shall prepare the charge and not give a charge prepared by counsel for either party. We differ with counsel in this respect, and hold that it was competent for the court to give the charge. By giving the charge the court adopted it and made it his own, and it is immaterial who prepared it, for which reason we overrule the third assignment.

The court gave several special charges prepared by counsel for plaintiff. It seems that they had been prepared, filed and marked, “Given,” on the evening before they were in fact read to the jury. On the next morning counsel for defendants, noticing them in the file, stated that they desired to file objections thereto, which privilege was accorded them; after which they filed their objections, and the court read such special charges to the jury. It is contended that this was error, on the ground that it prejudged issues of law presented therein. Defendants having been afforded ample opportunity before the charges were read to the jury to object, and having filed their objections thereto, we hold that no error is shown, for which reason we overrule the fourth assignment.

We do not think special charge No. 5 given by the court is subject to the objection that it unduly accentuates plaintiff’s theory of the case, and overrule the fifth assignment.

By the ninth assignment it is urged that the court erred in giving an oral instruction to the jury in the absence of defendants, or their counsel, and without their knowledge or consent, after the jury had retired to consider of their verdict. While the bill shows that, after the jury had retired to deliberate upon their verdict, they returned into court in the absence of 'counsel and asked for a further charge with reference to a certain phase of the case, and the foreman testified that the court called their attention to the written charge and made some explanation in answer to the question, still the court states in the bill that he did not give any additional instructions to the jury; this being the state of the record, no error is shown, because we think the statement of the court must have controlling effect.

The remaining assignments have been considered, but are regarded without merit, for which reason they are all overruled.

Finding no error in the proceedings of the trial court, the judgment is in all respects affirmed.

Affirtaed..

       The act of Congress indicated did not designate the matter quoted as section 71, but probably intended to do so. Congress subsequently added a section 71, containing matter foreign to the provision referred to .by the court.

      dfeoFor other cases see same topic and KEY-NUMBER in’all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: TALBOT, J.

license: Public Domain

text:
    SHIPLEY v. MISSOURI, K. & T. RY. CO. OF TEXAS.
    (No. 7679.)
    (Court of Civil Appeals of Texas. Dallas.
    Dec. 22, 1917.)
    1. Appeal and Error <&wkey;499(4) — -Review-Refusal of Special Requested Charge— Statute.
    Under Acts 33d Leg. c. 59, § 3 (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 1973, 2061). declaring that either party may present, in writing, such instructions as he desires, which the judge shall give or refuse, provided they shall be prepared and presented to the court and submitted to opposing counsel for examination and objection within a reasonable time after the main charge is given for examination, and declaring that the ruling of the court in giving, refusing, or qualifying instructions shall be regarded as approved, unless excepted to as provided, the refusal of a special requested charge will not be reviewed on appeal where the record fails to show that it was presented to opposing counsel for examination and objection as by the statutes required.
    2. Caeeieks <&wkey;321(14) — Carriage of Passengers — Injuries—Instruction.
    The charge that the jury would not be warranted in returning a verdict for defendant railway, alleged to have injured plaintiff’s wife, unless they believed that the railway’s servants stopped the train at the wife’s destination a reasonable and sufficient length of time for her to alight safely, unless they also believed that the servants in making, a second stop did not negligently stop the train suddenly with a jerk, and unless they believed that the servants, in carrying plaintiff’s wife past her destination, and forcing her-to alight at the place and in the manner and with the means furnished, were not guilty of negligence as negligence had been defined, was not erroneous as requiring the jury to believe, before they could find for plaintiff, that the railway’s servants were guilty of negligence both in the manner of stopping the train where plaintiff’s wife alighted and in requiring her to take a long and dangerous step in alighting, being an effort to group the facts under which verdict might be returned for the railroad, and, if error at all, not being calculated to cause rendition of an improper verdict and judgment.
    3. Trial <&wkey;296(3) — Harmless Error —Instructions.
    "Where the issues of negligence on the part of defendant railway’s servants with respect to the manner in which the train was stopped where plaintiff’s wife alighted, and with respect to the place, manner, and means furnished for the wife to alight, were submitted disjunctively, and the jury distinctly told that if they should find either of the issues for the plaintiff to return vfe'rdict ior lnm; the jury could not have been misled to plaintiff’s prejudice by another paragraph of the charge submitting such issues conjunctively.

      4. Trial ⅞⅛3295(1) — Instructions— Construction Together.
    The charge of the court should be considered and construed as a whole.
    5. Appeal and Erkor <⅜=»1027 — Harmless Error — Reversal.
    Error not calculated to cause and which did not probably cause rendition of an improper judgment does not authorize reversal.
    Error from District Court, Hunt County; Wm. Pierson, Judge.
    Action by.J. H. Shipley against the Missouri, Kansas & Texas Railway Company of Texas. To review a judgment for defendant, plaintiff brought error. The judgment was affirmed, and plaintiff in error moves for rehearing.
    Motion overruled, but former opinion withdrawn, and present opinion substituted.
    Evans & Shields, of Greenville, for plaintiff in error. Chas. C. Huff, of Dallas, and Dinsmore, McMahan & Dinsmore, of Green-ville, for defendant in error.
   TALBOT, J.

This case heretofore was affirmed, and the plaintiff in error filed a motion for a rehearing. That motion will be overruled, but the former opinion will be withdrawn and this opinion substituted therefor.

The plaintiff in error, J. H. Shipley, who will hereinafter be referred to as plaintiff, sued the defendant in error, the Missouri, Kansas & Texas Railway Company of Texas, referred to hereinafter as defendant, to recover damages alleged, to have been sustained on account of personal injuries negligently inflicted upon his wife, Mrs. Edwina Ship-ley, while she was a passenger on one of defendant’s trains. The petition charged that Mrs. Shipley boarded one of the defendant’s passenger trains at Fate, Tex., to be carried thereon to Burrow, Tex.; that as said train approached the station Burrow Mrs. Shipley made preparations to alight therefrom in the usual and ordinary way, but that the servants of defendant in charge of and operating said train negligently failed to stop the same at the platform of said station a sufficient length of time to enable her to alight; that said train stopped at the platform of said station but a few moments and started again by the time Mrs. Shipley reached the door of the car in which she was riding ; that when defendant’s servants were informed that plaintiff’s wife was still on the train they stopped the same 60 or 75 feet north of the north end of the platform; that at this time plaintiff’s wife was standing partly in the door and partly on the platform of the car, ready to alight; that she was incumbered with a number of articles, and that said train was then stopped suddenly, with a quick, unusual, and unnecessary jerk and lurch, throwing her off her balance, and that in her effort to catch hold of something and restore her equilibrium she received a severe wrench, jerk, and twist in the small of her back, causing serious injury. It is further alleged that the plaintiff's wife was directed by the servants of the defendant to alight at the place where the train was thus stopped; that defendant’s roadbed there was upon a dump, and the distance from the bottom step of the platform of the car to the top of the box placed upon the ground for her to step upon in alighting was about 30 inches, all of which rendered said place dangerous for a person situated as plaintiff’s wife was to alight from said train; that, plaintiff’s wife “not being in a position to judge the distance from the step to the box, or not knowing the distance that she was required to step until she was in the very act of stepping from the steps of the car, it became and was the duty of the defendant’s-agents and servants to have extended her personal assistance in alighting from said train,” and they were guilty of negligence in failing to do so; that plaintiff’s wife stepped from the steps of the car to the box on the ground, “and as she did so, having been injured in her back and other parts of her body by the sudden stopping of the car, and being in a state of great excitement and fear, the long and unusual distance she had to step caused her to be injured in that she felt a severe wrench and jerk in the small of her- back and on left side especially, accompanied with severe cutting pain, inflicting upon her serious injuries” — the nature and extent of said injuries being fully alleged. Plaintiff charges specifically that the defendant was guilty of negligence in failing to stop the train at the usual stopping place .at the station; in failing to stop the train at such place a reasonably sufficient length of time to enable plaintiff’s wife to alight from the train; in carrying her past said station; in directing her to alight from the train at the place beyond the station where it was stopped; in stopping the train with a quick and sudden jerk; and in failing to extend to plaintiff’s wife personal assistance in alighting from the train. The defendant answered, denying that it had been guilty of any of the acts of negligence charged in plaintiff’s petition. It alleged that its train was stopped at the station of Burrow for a reasonably sufficient length of time for plaintiff’s wife to have left the same, but that she failed to promptly leave her seat and appear at the exit of the ear in which she was riding until the car had begun to move from the station; that when she did appear at the door of the car a servant of defendant, who was present, discovered that she desired to alight, and he at once signaled the engineer to stop the train; that the said engineer • upon receiving such signal easily, smoothly, and quickly stopped tlie train when the car in which plaintiff’s wife was riding had moved a distance of only about 50 feet; that when the train had come to a standstill the defendant’s servants placed a step box on the ground at said point and where the ground was safe and convenient for plaintiff’s wife to alight, and assisted her to alight from the train, and that she alighted without inconvenience or injury. Defendant further averred that the failure of the plaintiff’s wife to alight from the train at the station proper at Burrow and any inconvenience or injury which she may have sustained was due solely to her own negligence. There was a jury trial, which resulted in a verdict and judgment in favor of the defendant, and the plaintiff appealed.

The first assignment of1 error complains of the trial court’s action in refusing to give a special charge requested hy the plaintiff, wherein the plaintiff sought to have submitted to the jury the question of negligence alleged by the plaintiff with respect to the distance from the step of the car from which plaintiff’s wife alighted to the step box placed upon the ground for her to step upon, and the question of negligence with respect to the alleged failure of defendant’s servants to render assistance to plaintiff’s wife while alighting from the train. The defendant objects to the consideration of this assignment, for the reason, among others, that it‘ is not shown by the record that the special charge, the refusal of which is complained of, was ever submitted to the attorneys for the defendant for examination and objection as required by statute. This objection must be sustained and a consideration of the assignment refused. Chapter 59 of the Acts of the Thirty-Third Legislature, p. 113, § 3, declares that either party to a suit may present to the judge presiding, in writing, such instructions as he desires to be given to the jury, which the judge shall give or refuse as he may see proper, provided such instructions, however, shall be prepared and presented to the court and submitted to opposing counsel for examination and objection, within a reasonable time after the main charge is given to the parties or their attorneys for examination. This statute further declares that the ruling of the court in giving, refusing, or qualifying instructions to the jury shall be regarded as approved, unless excepted to as therein provided. Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 1973, 2061. In construing this statute it has been repeatedly held by our appellate courts that the refusal of a special requested charge will not be reviewed on appeal where the record fails to show that it was presented to opposing counsel for examination and objection as by said statute required. Floegge v. Meyer, 172 S. W. 194; Railway Co. v. Jones, 175 S. W. 488; Railway Co. v. Hargrave, 177 S. W. 509; J. B. Farthing Lumber Co. v. Illig, 179 S. W. 1092; Terrell v. Houston & T. C. Ry. Co., 189 S. W. 575. In failing to show that the special charge in question was submitted to opposing counsel for their consideration as indicated above, the hill of exception is fatally defective, and for that reason this assignment cannot be considered by this court.

For the same reason the plaintiff’s second assignment, which presents practically the same question presented by the first assignment, cannot be considered or the action of the court therein complained of reviewed. We will state, however, in this connection, that the court’s general charge, we think, construed, as a whole, fairly submitted every issue of negligence raised hy the pleadings and evidence, unless it be the issue of negligence with respect to the alleged failure of defendant’s servants to render assistance to plaintiff’s wife while alighting from the train, which plaintiff sought to have submitted by the refused special charge, the refusal of which is complained of by the assignment here under consideration, and which cannot be considered for the reason stated.

The third assignment of error complains of the following portion of the fifth paragraph of the court’s charge:

“Unless you believe from the evidence that defendant’s servants failed to stop said train at the station of Burrow a reasonable and sufficient length of time for plaintiff’s wife, in the exercise of ordinary care, to safely alight therefrom, and unless you believe that defendant’s servants in making the second stop stopped said train suddenly, with a quioK and sudden jerk and lurch, and unless you believe that defendant’s agents and servants in carrying plaintiff’s wife past said station, and in having her to alight at the place and in the manner and with the means furnished were guilty of negligence as defined in paragraph 1 hereof, or unless you find _ that plaintiff’s wife was injured by the negligence, if any, of defendant’s servants, or unless you find that the negligence of defendant’s servants, if they were negligent, was the proximate cause of the injuries to plaintiff’s wife, if she was injured, then and in either event you will find for the defendant.”

The proposition under this assignment is as follows:

“The plaintiff having pleaded and proved that his wife was injured by the negligence of the defendant, both in the manner in which the train was stopped' and by the long, unusual, and dangerous distance that his wife was required to step in alighting from the train, and that defendant’s servants were negligent in both these respects, and that such negligence, in either or both of these respects, was the proximate cause of the injuries to his wife, it was reversible error for the court to give an instruction to the jury, and to overrule plaintiff’s written objections presented in proper form and in due time thereto, which instructions required the jury to believe that the agents and servants of the defendant were guilty of negligence, both in the manner of stopping the train' and also in having plaintiff’s wife to alight at that place, and that plaintiff’s’ wife was injured both by the manner in which the train was stopped and hy the long step that she was required to take in alighting from said train before the jury would be authorized to find for the plaintiff; the plaintiff being entitled to recover if Ms wife was injured by tlie negligence of the defendant either in the manner in which the train was stopped, or by reason of the long step that she was required to take in alighting therefrom.”

This assignment and proposition will be overruled. As will be noted, the complaint is that the charge under consideration required the jury to believe, before they would be authorized to find a verdict in favor of the plaintiff, that the servants of defendant were guilty of negligence proximately causing ifajury to plaintiff’s wife both in the manner of stopping the train where she alighted and in requiring her to take a long, unusual, and dangerous step in alighting from the train, whereas plaintiff was entitled to recover if defendant’s servants were guilty of negligence in both or either of these respects which proximately caused his wife’s injuries.

The complaint is not well founded, and the assignment presenting it will be overruled. The charge was an effort on the part of the trial court to group the facts or state the circumstances under which a verdict might be returned in favor of the defendant, and if error at all was not such as was calculated to cause the rendition of an improper verdict and judgment. The effect of the charge was to tell the jury that they would not be warranted in returning a verdict for the defendant, unless they believed from the evidence that its servants stopped the train at the station of Burrow “a reasonable and sufficient length of time” for plaintiff’s wife, in the exercise of ordinary care, to safely alight therefrom, and unless they also believed that the defendant’s servants in making the second stop did not negligently stop the “train suddenly with a quick and sudden jerk and lurch,” and unless they also .believed that “defendant’s servants in carrying plaintiff’s wife past said station, and in having her to alight at the place and in the manner and with the means furnished,” were not guilty of negligence as negligence had been defined in a former paragraph of the charge. That the jury so understood the portion of the charge complained of we have little or no doubt; and if so understood they must have known that they were thereby instructed, in effect, that the defendant could not escape liability, and that the plaintiff was entitled to recover if the servants of defendant were guilty of either act of negligence mentioned in said charge. The charge embodied a correct proposition of law. The defendant was not entitled to a verdict in its favor if the evidence failed to establish the existence of any one of the grounds of negligence alleged, but only in the event neither of them was supported by the evidence. But if, upon any conceivable theory, the charge in question standing alone could be regarded misleading to plaintiff’s injury, yet when the whole charge of the court is considered and construed together it is altogether improbable, we tMnk, that the jury were misled by the grouping con-junctively of the two grounds of alleged negligence referred to in that portion of the general charge attacked. In the fourth paragraph of the court’s charge the jury was instructed that if they should “find that in making the second stop the defendant’s servants stopped the train suddenly with a quick, unusual, and unnecessary jerk and lurch, and thereby caused plaintiff’s wife to be injured, and that in so stopping the train defendant’s servants were guilty of negligence, and that such negligence was the proximate cause of the injuries to plaintiff’s wife, to find for plaintiff,” or if they should find that defendant’s servants in charge of the train failed to stop said train at the station of Burrow “a reasonable and sufficient length of time for plaintiff’s wife, in the exercise of ordinary care, to have alighted therefrom, and should find that defendant’s servants in carrying her past said station and stopping the train where it was stopped for plaintiff’s wife to alight, and in the manner, place, and means furnished by defendant’s servants to plaintiff’s wife in alighting from the train, were in any or all the respects named guilty of negligence, and that such negligence was the proximate cause of the injuries to plaintiff’s wife, to find for the plaintiff.”

Thus the issues of negligence on the part of defendant’s servants with respect to the manner in which the train was stopped at the place where plaintiff’s wife alighted and with respect to the place and manner and means furnished for plaintiff’s wife to alight from the train, and which plaintiff asserts were erroneously submitted conjunc-tively in the fifth paragraph of the court’s charge, were submitted disjunctively, and the jury distinctly told that if they should find either of said issues in favor of the plaintiff, to return a verdict in his favor. With these clear and explicit instructions before them, it is indeed difficult to conceive how the jury could have been misled to the prejudice of the plaintiff by the manner in which that portion of the charge assailed was framed.

That a charge of the court should be considered and construed as a whole, and that an error which was not calculated to cause, and which did not probably cause, the rendition of an improper judgment will not authorize the reversal of a ease, is the well-settled law of this state. We think there was no error in the charge complained of at all, but if there was it was not of such a character as was calculated to cause and did not probably cause the rendition of an improper verdict and judgment in this case.

Finding no reversible error in the record, the plaintiff’s motion for a rehearing as before stated will be overruled, and the judgment stand affirmed.

Affirmed,
      <g=»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      ÉssFor other oases see same topic and KEY-NUMDER in all Key-Numbered Digests and Indexes


author: BOYCE, J.

text:
    PANHANDLE & S. F. RY. CO. v. BROOKS.
    (No. 1259.)
    (Court of Civil Appeals of Texas. Amarillo.
    Dec. 5, 1917.
    Rehearing Denied Dec. 19, 1917.)
    1. Master and Servant ¡©^>270(18) — Injuries to Servant — Negligence oe Foreman-Evidence.
    In determining whether the act of a railway’s foreman in directing four men to do certain work was negligent, the fact that he knew, or should have known, in the exercise of ordinary care, that the force of men was insufficient, was material.
    2. Commerce <@=>8(6) — Federal Employers’ Liability Act — Intention oe Congress-Liability oe Railroad.
    It was the intention of Congress, by its legislation on the liability of railroads for injuries to their employes engaged in. interstate commerce, to take entire and exclusive control over the subject in order to make the liability in such cases uniform throughout the United States, and, as in the case of liability of the initial carrier in an interstate shipment, the liability is to be determined by the provisions of the legislation itself and the general common law as administered by the federal courts, unaffected by state legislation and decisions of the state courts, except as they may announce the common law.
    3. Master and Servant <@=>252 — Federal Employers’ Liability Act — Requirement that Servant Give Notice oe Injuries.
    Under federal Employers’ Liability Act April 22, 1908, c. 149, 35 Stat. 65 (U. S. Comp. St. 1916, § 8657) § 1, providing that every common carrier, by railroad, while engaged in commerce between any of the several states., shall be liable in damages to any person suffering injury while employed by such carrier in such commerce, for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employés of such carrier, and section 5 (section 8661), providing that any contract, rqle, regulation, or device, whatsoever, to enable any common carrier to exempt itself from any liability created by the act, shall be void to that extent, the written contract of employment between a railroad and its employé, in so far as it provided that the road should not be liable for injuries unless the employé gave notice in writing of his claim, was void.
    4. Master and Servant <s=>286(29) — Injuries to Servant — Negligence—Question eor Jury.
    In a railroad servant’s action for injuries while handling timber with others, whether the railroad was negligent in the means and method employed in transferring the timber from one car. to another held, for the jury.
    5. Appeal and Error <@=>216(2) — Reservation oe Grounds oe Review — Request for Instruction.
    Where, if there was any error in a charge, it was one of omission, appellant, before it could complain, should have requested a special instruction to be submitted in connection with the charge.
    6. Trial ®=>243 — Instructions—Inconsistency.
    In a railroad servant’s action for injuries, where the court, in submitting defendant’s affirmative liability, in the fourth paragraph of the charge stated the several grounds of negligence relied on by plaintiff to support a recovery conjunctively, so that a finding in plaintiff’s favor on all of tiiem was necessary before he could recover, but in the submission of the issue of concurrent negligence of plaintiff and defendant the jury was instructed to apply the doctrine of comparative negligence if they found any negligence of defendant as submitted -for their determination in the fourth paragraph, the charge was inconsistent.
    7. Appeal and Error <@=>1033(5) — Harmless Error — Inconsistency in Charge.
    Such inconsistency was not calculated to injure defendant railroad; the. error being against plaintiff servant, if any one.
    8. Master and Servant <@=>204(1) — Federal Employers’ Liability Act — Assumed Risk.
    In a railroad servant’s action for injuries under the federal Employers’ Liability Act, Congress having taken complete control of the subject of the liability of interstate carriers by rail to their servants for injuries, the statutory law of Texas has no application, and the question of assumed risk is to be determined by the provisions of the federal Employers’ Liability Act itself, and the common law as recognized by the federal courts.
    9. Master and Servant <@=>204(1) — Federal Employers’ Liability Act — Defense of Assumed Risk.
    Federal Employers’ Liability Act, § 4 (U. S. Comp. St. 1916, § 8660), providing that, in any action brought against any common carrier under any of the provisions of the act to recover damages for" injuries to or the death of any of its employés, such employe shall not be held to have assumed the risk of his employment in any case where the violation of such common carrier of any statute enacted for the safety of employés contributed to the death or injury of such employé, leaves unimpaired the common-law defense of assumed risk except under the conditions stated.
    10. Master and Servant <@=>203(1) — Injuries to Servant — Assumption of Risk.
    An employé assumes the risk of dangers normally incident to the occupation in which he voluntarily engages, so far as they are not attributable to the employer’s negligence; but the employé has the right to assume that his employer exercised proper care with respect to providing a safe place of work, and suitable and safe appliances, and is not to be treated as assuming the risk arising from a defect that is attributable to the employer’s negligence until the employé becomes aware of such defect, or unless it is so plainly observable that he may be presumed to have known of it.
    11. Master and Servant <@=>288(1) — Injuries to Servant — Assumption of Risk — Question for Jury.
    In a railroad servant’s action for injuries while handling timber, question whether plaintiff assumed the risk of injury arising from the insufficient number of his fellow workers held for the jury under the evidence.
    12. Master and Servant <@=>295(1) — Injuries to Servant — Assumption of Risk.
    In a railroad servant’s action for injuries while handling timber, special charges that, if plaintiff by the exercise of ordinary care could have known of the danger or the insufficiency of the number of men to perform the work, he assumed the risk under the circumstances, were incorrect as imposing a greater burden on plaintiff than the law required.
    13. Damages <@=>208(6) — Personal Injuries —Mental Suffering — Direct Evidence.
    In a railroad servant’s action for injuries under the federal Employers’ Liability Act, the trial court properly submitted as an element of damage the pain of body and mind suffered by plaintiff, though no direct evidence of pain of mind was offered, since mental anguish is presumed to follow physical pain and injury from rupture or hernia by sudden physical strain such as plaintiff suffered.

      Appeal from District Court, Potter County; Hugh L. Umphres, Judge.
    Suit by B. F. Brooks against the Panhandle & Santa Fé Kailway Company. Prom a judgment for plaintiff, defendant appeals.
    Affirmed.
    Madden, .Trulove, Ryburn & Pipkin, of Amarillo, and Terry, Cavin & Mills, of Galveston, for appellant. L. C. Barrett and J. N. Browning, both of Amarillo, for appellee.
   BOYCE, J.

This suit was brought by ap-pellee, Brooks, against the Panhandle & Santa PS Railway Company, to recover damages for an injury alleged to have been sustained by appellee while in the employment of appellant and being engaged at the time of the alleged injury in moving some heavy bridge timber from one car to another. This appeal is from a judgment for the plaintiff, rendered oh a general verdict of the jury in his favor.

It was alleged, and evidence offered in support of the allegations, that four men, including the plaintiff, working under the direction of a foreman, who assisted to some extent in the work, undertook to move from one flat car to another, across the end thereof, a bridge timber 12x12 inches square,' and about 14 feet long, which was estimated to weigh about 700 or 800 pounds. Across the end of the car, and over which the timber was to be moved, was a drain box, the top of which was some 2½ feet above the floor of the ear. Plank 3 by 12 inches were rested on this box to form skids over which to move the bridge timber. The bridge timber was lifted and placed on rollers, consisting of 3-inch iron pipe, and the timber rolled over the drain box. Two men, one of whom was the plaintiff, were engaged in pulling at the front end of the timber, and two others, assisted by the foreman, were pushing at the rear. When the center of gravity of the bridge' timber passed over the drain box, the forward end of the timber dropped suddenly downward and forward, its weight jerking on plaintiff, who had hold of it with a lug hook, resulting in a hernia or rupture. The negligence alleged and submitted to the jury was: First, the order and attempt of the foreman to move said timber with a force of mén insufficient to handle it with safety; and, second, the method employed by said foreman in moving the timber.

The defendant, in addition to the general denial, pleaded that the accident resulted from a risk ordinarily incident to the service of plaintiff, and therefore assumed by him, and further that the plaintiff knew, or should have known, of the danger incident to the handling of the timber under the circumstances and assumed the risk, and was also guilty of contributory negligence in such matter. The defendant further pleaded certain provisions of the contract of employment with plaintiff, which we will set out more fully later.

It was alleged and shown by plaintiff, and acquiesced in by defendant, that the plaintiff was injured while employed by defendant in interstate commerce, so that the liability of the defendant is based upon the federal Employers’ Liability Act.

The first three assignments of error complain of the action of the court in overruling defendant’s objection to the pleading and proof that one of the three coworkmen with plaintiff at the time of the direction of the foreman, to the four men, to move this timber, insisted that it was too heavy for four men to move, and that others should be called to help. If such evidence has any relevancy, it would be only as tending • to charge the defendant with notice of the fact that the number of men employed to do this particular piece of work was insufficient. However, in determining whether the act of the foreman in directing four men to do this work was negligent, the fact that he knew, or should in the exercise of ordinary care have known, that the force of men was insufficient, would be material, and we believe the testimony of the character complained of would be admissible on this issue.

The defendant specially pleaded: That the plaintiff, at the time he entered the service of the defendant, entered into a written contract of employment, by the terms of which he agreed that in the event he should sustain any personal injury while in the service of the defendant, for which he should make claim for damage, he would, within 30 days after receiving such injury, give notice in writing of such claim to the claim attorney or general claim agent of the defendant, which notice should state the particulars of the injury and the amount of the claim therefor, and that failure to give such written notice within the manner and time aforesaid should be a bar to the institution of any suit on account of such injury. That said provisions in said contract were reasonable, and that the plaintiff had not complied therewith, and had not given the notice as therein stipulated, and that therefore such contract and plaintiff’s failure to comply therewith constituted a bar to plaintiff’s right to recover. The court sustained an exception to this portion of the answer, and appellant assigns error on such action.

If the statutes of our state were applicable to this subject, we would not have to look further than to the provisions of article 6714 of such statutes for a decision of this question. But it is definitely settled by the decisions of the Supreme Court of the United States that it was the intention of the Congress, by its legislation on the liability of railroads for injury to employés while engaged in interstate commerce, to take entire and exclusive control over this subject, with a view to making the liability in such cases •uniform throughout the United States. N. Y. C. Ry. Co. v. Winfield, 244 U. S. 147, 37 Sup. Ct. 546, 61L. Ed. 1045, Ann. Cas. 1917D, 1139. And as in the‘case of liability of the initial carrier in interstate shipments, this liability is to be determined by the provisions of the legislation itself and the general common law, as administered by the federal courts (Seaboard Air Line v. Horton, 233 U. S. 492, 34 Sup. Ct. 635, 58 L. Ed. 1062, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475; M., K. & T. Ry. Co. v. Harriman Bros., 227 U. S. 672, 33 Sup. Ct. 397, 57 L. Ed. 698), unaffected by state legislation and decisions of state courts, except as they may announce the ■common law. So that, in our search for authoritative law on this subject, we will be confined to the field indicated. While we have been cited to no authorities so holding, we think it may be assumed that, in the absence of legislative prohibition, the contract in question would have been valid at common law on the same principle that contracts for notice or claim for damages in shipping and telegraph eases have been upheld. So that the question for decision is whether such a contract is condemned by the spirit or express terms of the federal act creating the liability. The provisions of- the act which we believe should be decisive of this question are as follows: .Section 1 of the act, section 8657, U. S. Statutes compiled by West Publishing Co., provides that:

“Every common carrier by railroad while engaged in commerce between any of the several states, etc., * * * shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce * * * for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employés of such carrier, etc.”

Section 5 of the act, section 8661, Compiled Statutes above referred to, has this provision:

“Any contract, rule, regulation, or device, whatsoever, the purpose or intent of which shall be to enable any common carrier to exempt itself from any liability created by this Act, shall to that extent be void.”

It is suggested by appellant that there is an analogy between this contract in this case and similar stipulations in contracts of shipment under the Interstate Commerce Act, which have been repeatedly upheld by the Supreme Court of the United States. An analysis will show, however, that the analogy is not complete. By the terms of the act regulating interstate shipments it was provided:

“That any common carrier, railroad, or transportation company receiving property for transportation from a point in one state to a point in another state, shall issue a receipt or bill of lading therefor, and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it or by any common carrier, railroad, or transportation company to which such property may- be delivered, or over whose line or lines such property may pass, and no contract, receipt, rule or regulation shall exempt such common carrier, railroad, or transportation company for the liability hereby imposed.” Act Cong. June 29, 1906, e. 3591, § 7, 34 Stat. 595.

The liability imposed by this act, however, was not absolute. Adams Express Co. v. Croniger, 226 U. S. 505, 33 Sup. Ct. 148, 57 L. Ed. 320, 44 L. R. A. (N. S.) 257; M., K. & T. Ry. Co. v. Harriman Bros., 227 U. S. 672, 33 Sup. Ct. 397, 57 L. Ed. 698. The liability imposed was the common-law liability, which was itself a proper subject of contract within certain limits. So that in such case the liability was itself to be ascertained and determined by any contract that might lawfully at common law be entered into with reference to the shipment. The Employers’ Liability Act, however, imposes an absolute liability for injuries resulting from negligence. The question of negligence was, of course, to be determined by the principles of common law; but, when that was ascertained, the liability was fixed by the act, which went further and expressly declared that any contract, • the purpose and intent of which was to exempt the carrier from liability created thereby, should be void.

The first Employers’ Liability Act of 1906 (Act Cong. June 11, 1906, c. 3073, 34 Stat. 232), which was held unconstitutional, except as to its application to the District of Columbia and the territories, had provided by section 3 of the act that:

“No contract of employment * * * entered into by or on behalf of any employé * * * shall constitute any bar or defense to any action brought to recover damages for personal injuries to or death of such employe.”

The court, in the case of Philadelphia, B. & W. R. R. Co. v. Schubert, 224 U. S, 603, 32 Sup. Ct. 589, 56 L. Ed. 911, in discussing the meaning and application of the present act, and after referring to section 3 of the old act, as above quoted, says:

“But it is urged that the substituted provision (of section 5 of the act of 1908 [U. S. Comp. St. 1916, § 8661]) failed to embrace that which the earlier act specifically described. We cannot assent to this view. The evident purpose of Congress was to enlarge the scope of the section, and to make it more comprehensive by a generic, rather than a specific, description. It thus brings within its purview, ‘any contract, rule, regulation or device whatsoever, the purpose or intent of which shall be to enable any common carrier to exempt itself from any liability created by this act.’ It includes every variety of agreement or arrangement of this nature; and stipulations, contained in contracts of membership in relief departments, that the acceptance of benefits thereunder shall bar recovery, are within its terms. The statute provides that ‘every common carrier by railroad in ⅜ ⅜ * ⅛6 District qf Columbia * ⅜ ⅜ shall be liable in damages to any person suffering injury while he is employed by such carrier ⅜ * * resulting in whole or in part from negligence of any of the officers, agents, or employers, of such carrier, of by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.’ That is the liability which the act defines and which this action is brought 'to enforce. It is to defeat that liability for the damages sustained by Schubert, which otherwise the company would be bound under the statute to pay, that it relies upon his contract of membership in the relief fund, and upon the regulation which was a part of it. But for the stipulation in that contract, the company must pay; and, if the stipulation be upheld, the company is discharged from liability. The conclusion cannot be escaped that such an agreement is one for immunity in the described event, and as such falls under the condemnation of the statute. ⅜ • ⅜ The words, ‘the purpose or intent of which shall be to enable any common carrier to exempt itself from any liability created by this act,’ do not refer simply to an actual intent of the parties to circumvent the statute. The ‘purpose or intent’ of the contracts and regulations, within thé meaning of the section, is to be found in their necessary operation and effect in defeating the liability which the statute was designed to enforce. Only by such general application could the statute accomplish the object which it is plain that Congress had in view.”

In the case of M., K. & T. Ry. Co. of Texas V. Hudgins, 60 Tex. Civ. App. 344, 127 S. W. 1183, the Court of Civil Appeals of this state for the Sixth District had such a contract under consideration, in a suit for damages under our own Railway Employer’s Liability Act, which provided, among other things, that:

“No contract made between the employer and employé, based upon the contingency of death or injury of the employé, and limiting the liability of the employer under this act, or fixing damages to be recovered, shall be valid or binding.” Acts 25th Leg. (1st gp. Sess.) c. 6, § 4.

And in discussing the validity of such a contract as determined by the said provision of our statute the court said:

“By the terms of section 1 of the act, a liability of appellant, as an employer operating a railroad, was to pay appellee, its employé, all damages sustained by him while engaged in the work of operating a locomotive by reason of the negligence of any other of its employés, without respect to whether such other employé was a fellow servant with appellee or not. Ap-pellee’s suit was to enforce this liability on the part of appellant. The portion of the answer excepted to set up as a bar to his right to enforce it the failure on his part to comply with the stipulation in the contract set out in the answer. In creating a liability on the part of appellant to appellee for an injury received by him as the result of negligence on the part of his fellow servant, the statute at the same time preatcd, as against appellant, and in favor of appellee, a right to enforce that liability within the time and in the mode provided by the general laws of the state. The liability created was an absolute one against the employer, and the right bestowed was an absolute one in favor of the employé. But such would not be the effect of the statute if force should be given to the stipulation in the contract. We would have, instead of an absolute right and an absolute liability, a conditional right and a conditional liability. The employer would be liable if the notice was given. The employé would have the right if he gave the notice. It is obvious therefore that to give effect to the contract would be to limit or restrict the operation of the statute. That the limitation so effected would be upon the substantive rights of the seems to have been determined by the iupreme Court in C., R. I. & P. Ry. Co. v. Thompson, 100 Tex. 188, 97 S. W. 459, 7 L. R. A. (N, S.) 191, 123 Am. St. Rep. 798.”

The Supreme Court of Arkansas, in the case of C., R. I. & P. Ry. Co. v. Pearce, 118 Ark. 6, 175 S. W. 1160, L. R. A. 1915F, 551, expressly held that a similar contract as applied to an employé of a railway coigpany, injured while engaged in interstate commerce, was void.

That part of the contract which provides for notice would-perhaps be unobjectionable ánd in itself might be enforced if that could be done in any way other than by exempting the railway company from liability. But the agreement which makes its breach a complete bar to the cause of action would enable the railway company thereby in such case to exempt itself from liability, and such agreement must fall under the provisions of the act as construed by the Supreme Court in the case we have referred to.

By the fifth assignment, appellant contends that the evidence was not sufficient to warrant the submission of an issue of negligence in the means and method employed by defendant in transferring said timber from one car to another. The only testimony on this subject was that descriptive of the method of transferring the timber as we have set it out in our preliminary statement and the testimony offered by the defendant that such timbers are usually handled by four men, and that offered by plaintiff 'that it- would take six men at least to properly handle such a piece of timber, particularly if it were to be carried. It may be inferred from some of the testimony offered by the defendant that this was the usual method of transferring such timbers from one car to another, though this is not clear and is not a necessary, inference from the evidence. There seems to have been only this piece of timber handled in this way on the day of the accident; the other timber on the car, however, having been unloaded onto the dock. If there is any hazard in this manner of handling timber above that incident to lifting it up and carrying it or handling it in some other way, it would result from the fact of the tendency of the timber resting on rollers with one enu five or six feet higher than the other, to plunge suddenly forward and downward after the center of gravity had been passed over the drain box. This character of movement might be hard to control and dangerous, so that we are of the opinion that the question was properly one for the jury.

Complaint is made, by the first proposition under the sixth assignment of error, of that portion of the charge that submits the issue of contributory negligence, because it does not specifically submit as an issue the alleged contributory negligence of plaintiff in attempting to move the timber with knowledge that an insufficient number of men were furnished. The charge does omit specific reference to this matter, but does direct the jury to diminish the damages “if you find any negligence of plaintiff as alleged in defendant’s answer in proportion to the amount of negligence, if any, attributable to plaintiff.” If there was any error in the charge, it was of omission, and the appellant, before it could complain, should have requested a special instruction to be submitted in connection with this portion of the charge.

The court, in submitting the affirmative liability of the defendant, in the fourth paragraph of the charge, stated the several grounds of negligence relied on by plaintiff to support a recovery conjunctively, so that a finding in plaintiff’s favor on all of them was necessary before he could recover; but, in the submission of the issue of concurrent negligence of plaintiff and defendant, the jury was instructed to apply the doctrine of comparative negligence, “if you find any negligence of defendant as submitted for your determination in the fourth paragraph of this charge, etc.” By the second proposition under the sixth assignment, it is contended that the charge is, for this reason, inconsistent. This is true. However, we do not thinlr that this was calculated to injure appellant; the error being against appellee, if any one.

We will consider together,'for the reason that they are all to be determined by the application of the law of assumed risk, the questions presented by the third proposition under the sixth assignment, and by the eighth, ninth, and tenth assignments. As one of the instructions requested by appellant upon which one of these assignments is based attempts to embody therein our statutory law on the subject of assumed risk, and appellant refers to the statute as authority in support of its assignment, we deem it proper to reiterate that, since Congress has by its legislation taken complete control of this subject, our own statutory law has no application, and the question of assumed risk is to be determined by the provisions of the act itself, and the common law, as recognized by the federal courts. Seaboard Air Line Ry. Co. v. Horton, 233 U. S. 499, 34 Sup. Ct. 635, 58 L. Ed. 1068, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475. Section 4 (section 8660, West’s Compiled Statutes) of said liability act is as follows:

“In any action brought against any common carrier under or by virtue of any of the provisions of this act, to .recover damages for injuries to, or the death of, any of its employés, such employé shall not be held to have assumed the risks of his employment in any case where the violation by such common carrier of any statute enacted for the safety of employés contributed to the injury or death of such em-ployé.”

This provision of the act leaves unimpaired the common-law defense of assumed risk, except under the conditions stated. Seaboard Air Line Ry. Co. v. Horton, supra, and, since this case does not involve the violation of any federal enactment for the safety of employés, it is to be determined by the principles of the common law. The law of assumed risk, so far as it is necessary to a decision of this case, is fully discussed and stated in the following cases: Gila Valley G. H. & N. Ry. Co. v. Hall, 232 U. S. 101, 34 Sup. Ct. 229, 58 L. Ed. 524; Seaboard Air Line Ry. Co. v. Horton, supra; C. O. & G. Ry. Co. v. McDade, 191 U. S. 68, 24 Sup. Ct. 24, 48 L. Ed. 100.

The following statement of the law in the opinion of the court, in the case of Gila Valley Ry. Co. v. Hall, supra, is, we think, sufficient for a decision of all of the questions presented by these assignments:

“There was a request for instructions to the effect that the plaintiff assumed the risk of injury from defects which he knew, or by the exercise of ordinary care in the discharge of his duties might have known, or which he had the opportunity to know. These instructions the court refused to give, but charged the jury upon this question: ‘The true test is not in the exercise of ordinary care to discover dangers, by the employé, but whether the defect is known or plainly observable by him. An employé is not charged by law with the assumption of a risk arising out of defective appliances provided by his employer, unless his employment was of such a nature as to bring to his attention and cause him to realize and comprehend the dangers incident to the use of such appliances.’ This, we think, was a correct instruction under the circumstances of the case. An employé assumes the risk of dangers normally' incident to the occupation in which he voluntarily engages, so far as these are not attributable to the employer’s negligence. But the employé has a right to assume that his employer has exercised proper care with respect to providing a safe place of work, and suitable and safe appliances for the work, and is not to be treated as assuming the risk arising from a defect that is attributable to the employer’s negligence, until the employé becomes aware of such defect, or unless it is so plainly observable that he may be presumed to have known of it. Moreover, in order to charge an employé with the assumption of a risk attributable to a defect due to the employer’s negligence, it must appear, not only that he knew (or is presumed to have known) of the defect, but that he knew it endangered his safety; or else such danger must have been so obvious that an ordinarily prudent person, under the circumstances, would have appreciated it.”

With tbis general statement of the law we will proceed to the consideration of the assignments of error on this subject. The third proposition under the sixth assignment is to the effect that:

“The court’s charge is erroneous in submitting as an issue the furnishing of an insufficient number of men because the evidence conclusively shows that the plaintiff had the same knowledge as to the sufficiency or insufficiency of the number of men furnished at the time he undertook said work.”

The objection to the court’s charge was in practically the same language. It is clear that, if it be conceded that the statement of the effect of the evidence be corréct, the legal, result asserted does not necessarily follow on application of the principles announced in the quotation 'above; but, if the objection to the charge is sufficient to require us to consider whether under the evidence it conclusively appears that any danger incident to the handling of the timber with an insufficient force of men was assumed by plaintiff, we are nevertheless of the opinion that the assignment is not well taken. The «ffect of plaintiff’s testimony is that he thought at least six men would be necessary to handle the timber if it was to bo carried, but he had not before seen timbers handled as this was and did not understand how it was to be handled; that he thought it was rather heavy, but if the foreman had a scheme to get it over the drain box he was •relying on him; that he did not know of the danger of handling the timber in the manner ■it was handled in time to have prevented the injury, and did not anticipate that the weight would be thrown on him suddenly as the timber “shot downward,” as he expressed it. The evidence suggests that a sufficient number of men at the rear could have balanced the timber and let it down gradually after the center of gravity passed over the drain •box. It seems that the lug hook used by appellee was something in the nature of ice tongs, except that it had a long wooden handle, one end of which was held by appellee on one side of the timber and the other end by another man on the opposite side, and appel-lee testified that the timber suddenly dropped downward and forward, throwing its weight on him with a jerk before he had time to turn loose. We can understand how one who has not seen timbers handled in this way might not appreciate the danger or understand how many men would be required to control the timber as it was passed over the drain box. We therefore believe the question was one for the jury.

.Special charge No. 3, requested by appellant and made the basis of the eighth assignment, special charge No. 4, requested and-refused, made the basis of the ninth assignment, and special charge No. 7, requested and refused, made the basis of the tenth assignment, were all properly refused for the reason that they did not correctly state the law as it is announced in the decisions of the Supreme Court of the United States to which we have referred. Special charges Nos. 3 and 4 proceed on the theory that if plaintiff, by the exercise of ordinary care, could have known of the danger, or could have known of the insufficiency of the number of men to perform the work, ho would have thereby assumed the risk under the circumstances stated. As expressly stated by the court, in the case of C. Ó. & G. Ry. Co. v. McDade, 191 U. S. 68, 24 sup. Ct. 24, 48 L. Ed. 100, such a statement of the law is not correct, and imposes a greater burden on the servant than the law required. Special charge No. 7 did not require a knowledge on the part of the plaintiff that the insufficient number of men used in handling the timber might be dangerous to him before he would be held to have assumed the risk. Special charge No. 4 would have been further erroneous in that it assumed that plaintiff knew that an insufficient number of men were furnished to handle the timber. This charge attempts to submit the defense of assumed risk as defined by article 6645 of our Revised Statutes. It is not necessary to determine whether it is correct under the statute, as it is evidently incorrect under the principles announced by the cases we have referred to. The charge of the court submits the question in substantially the manner approved by the court in the case of Gila Valley G. & N. R. Co. v. Hall, supra, and in connection with the general charge a special charge, No. 2, requested by appellant, was given which stated the law even more favorably to appellant than it was entitled.

The court did not err in submitting as an element of damage the pain of body and mind suffered by the plaintiff. No direct evidence of pain of mind was offered, but mental anguish is presumed to follow physical pain and injury, such as plaintiff sustained. T. & P. Ry. Co. v. Curry, 64 Tex. 85; I. & G. N. Ry. Co. v. Mitchell, 60 S. W. 996; Brown, Receiver, v. Sullivan, 71 Tex. 470, 10 S. W. 288.

The evidence was not sufficient to raise an issue of negligence on the part of the plaintiff in the care and treatment of his injuries, and it was not necessary for the court to give the special charge No. 10, on this subject, requested by defendant.

Affirmed.
      <&5>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HIGHTOWER, C. J.

text:
    THOMAS et ux. v. ASH.
    (No. 188.)
    (Court of Civil Appeals of Texas. Beaumont.
    Nov. 24, 1917.
    Rehearing Withdrawn Dec. 12, 1917.)
    1. Adverse Possession <⅜=>58 — Adverse Holding — Sueficien&y ox Evidence.
    Where, after having paid for land, defendants were informed by the vendor that he could not give a deed, as the land belonged to a certain third person, defendants could not acquire title under the 10-years statute of limitations, as against such person, without setting ,up a claim adverse to him. t.
    2. Adverse Possession <§=3112 — Burden ox Proof.
    Since no presumptions are indulged in favor of one claiming title by limitation, he has the burden of proving every essential fact in connection with his possession and claim.
    3. Vendor and Purchaser <©=>258 — Incum-brance-Simultaneous Transaction.
    Defendant, on purchasing land, gave notes for part of the purchase price. Part of the purchase money represented by the notes not having been paid, defendant, who was also indebted on other accounts, gave the vendor renewal notes in full for the entire indebtedness. As a part of the same transaction, defendant and wife, who were then claiming the land as a homestead, executed a deed to the vendor, who in turn gave a deed to defendant husband, retaining a vendor’s lien for the amount of the renewal notes. Held, that a purchaser of the notes was entitled to judgment for the amount of the notes, but would be given a lien on the land only for the amount of the purchase money due when the notes were given, he having actual knowledge by recital in the notes of the deed by defendant and wife and the deed by the vendor to defendant.

      Error from District Court, Panola County; W. C. Buford, Judge.
    Suit by R. P. Ash against Rich Thomas and wife. Judgment for plaintiff, and defendants bring error.
    Affirmed in part and reversed and remanded in part, with instructions.
    H. N. Nelson and Prank Lawson, both of Carthage, for plaintiffs in error. J. G. Woolworth and R. W. Priest, both of Carthage, for defendant in error.
   HIGHTOWER, C. J.

This cause was brought to this court by writ of error from a judgment of the district court of Panola county. R. P. Ash, who is defendant in error, filed suit in the district court of Panola county on March 18, 19Í5, against Rich Thomas. The cause of action was as follows:

On November 18, 1910, plaintiff in error Rich Thomas executed and delivered to one R. E. Trabue his certain four promissory notes, the first three being for the sum of $150 each, and the fourth for the sum of $152.61, said notes to become due on the 1st day of October, 1911, the 1st'day of October, 1912, the 1st day. of October, 1913, and the 1st day of October, 1914, respectively, and each bearing interest at the rate of 10 per cent, per annum from date, the interest payable annually, and stipulating for 10 per cent, on the amount of the principal and interest that should be due as attorney’s fees for collection in case suit should be brought, etc. Default in the payment of the notes or any part of same was alleged, and judgment was prayed for the full amount of same, together with interest and attorney’s fees. It was further alleged in the petition of defendant in error that the notes mentioned and sued on were given for the purchase money of a certain tract of land situated in Panola county, a part of the A. M. Witherspoon survey, which 50-acre tract is fully described in the petition, and it was alleged that said 50 acres of land was conveyed by the said Trabue to the said Rich Thomas on the day that said notes were executed, and that a vendor’s lien was retained in the deed from Trabue to Thomas to secure the payment of said notes, and that, in fact, said notes were secured by a vendor’s lien, which was prayed to be foreclosed, etc. It was further alleged that defendant in error had become the owner of all of said notes for value and before maturity as well as the lien by which the same was secured.

In due time the plaintiff in error Rich Thomas, as defendant below, filed his answer, and in the answer he was joined by his wife, Mary Thomas, who made herself a party defendant to the suit. .The answer consisted of a general demurrer, general denial, and the following special plea:

“And for further special answer herein, these defendants would show that they are man and wife and have been living together as such for over thirty years; that they bought the land described in plaintiff’s petition about 1889, and they, with their children, moved on said land in January, 1889; that they paid $150 for said land, and paid the cash for same, the second year after they went on it; that when they went on said land in January, 1889, they began to claim the same, and have at all times claimed said land; that they paid for said land, and were told, as they were in possession of the same, they could hold it; that they did not get a deed, and they, being ignorant and uneducated negroes, knew no better, but they lived on said land from January, 1889, to the present time, and are still living on the same; that they had lived on, used, cultivated, and claimed said land as their own from the 1st of January, 1889, up to the 20th day of December, 1901, more than ten years; that said land and place was and is their homestead; and that on the 20th day of December, 1901, their title to said land and premises was perfected by the statute of limitatiqns of ten years; that in December, 1901, R. E. Trabue, claiming some kind of a deed against the defendant, Rich Thomas, sued him, and levied some kind of a writ on his cotton; that he, being an ignorant negro, did not know what to do, and said Trabue told said defendant that if he would pay or give him $157.50, that he would make him a deed to his land, that if he did not that he was going to take it from him; that he was ignorant and knew! no better, and agreed to do so, and did pay the said amount; that said Trabue made the deed, and recited in the same, as a part of the consideration, three notes; that he never executed any notes; that being unable to read, and believing the deed to be all right, did - not have it read and examined; that in the latter part of the year 1910 the said Trabue promised the defendant, Rich Thomas, that if he and his wife would give him a mortgage on their crop for 1911 and on the mules.that he would furnish him supplies for the year 1911 and sell him a pair of mules; that he and his wife signed what they thought was a mortgage on their crop for 1911 and the mules they were to get from the said Trabue, but which defendants now believe was a deed to their home; that they are both very ignorant negroes and can neither read nor write; that the said Trabue never made to them any deed to said land for the notes sued on in this suit or for anything else; that the defendant Rich Thomas has no recollection of signing said notes, but, if he did, they were made without consideration, as the said Trabue never made to them a deed for the land; that said land did not belong to the said Trabue, but the title to the same was in these defendants and it was their homestead; that the plaintiff in this case knew, or by the use of ordinary diligence could have known, that said notes were void when he bought them; that these defendants were living on said land' at the time and had been since January, 1889, claiming the same as their homestead; that said notes are dated the same day of the deed that these defendants purport to have made the said Tra-bue, which was sufficient to put the said plain-, tiff on notice of defendants’ rights and their' claim to said land. Wherefore these defendants pray that on a trial of this cause they have judgment canceling said notes and the deed purporting to have been made by them to the said Trabue, and that the plaintiff take nothing herein, and that they recover all costs of suit, and they pray for all special and general relief the facts may show they are entitled to.”

This special plea was verified by the plaintiff in error Rich Thomas.

Defendant in error replied by supplemental petition, among other things, that the notes sued on were purchased in good faith and for valuable consideration, and without notice of any fact that would vitiate the notes, and was entitled to be protected as an innocent purchaser of said notes, and alleged lien given to secure them, etc.

The cause was tried before the court without a jury, and resulted in a judgment in favor of defendant in error against plaintiff in error Rich Thomas for the sum of $988.47, which was the amount of the four notes sued on, together with the interest and attorney’s fees due thereon, as prayed for by the defendant in error; also judgment was rendered in favor of defendant in error as against both defendants, foreclosing the claimed vendor’s lien on the land described in defendant in error’s petition, and ordering same to be sold in satisfaction of the judgment, etc.

Plaintiffs in error in due time filed their motion for new trial, and in several ways complained of the judgment of the trial court, in so far as the same established a lien upon the land in question, but no complaint was made of the action of the trial court as to the personal judgment against the plaintiff in error Rich Thomas. The motion for new trial was in all things overruled, the action of the court duly excepted to, and such action is here duly assigned as error.

The trial judge filed findings of fact and conclusions of law as follows :

“Findings of Fact.
“First. I find that the uncontradicted evidence shows that the plaintiff is the legal owner and holder of the four notes sued upon in this case.
“Second. I find that the four notes sued on in this case aré dated on the 18th day of November, 1910, and that they amount in the aggregate to the sum of six hundred two and 01/ioo dollars, and that said notes bear interest from their date at the rate of ten per cent, per annum, and that they further provide for the payment of ten per cent, additional on the principal and interest due on said notes as attorney’s fees, and that the said notes recite that they were given for the purchase money for the lands described in plaintiff’s original petition filed herein, and that said notes were so given as the purchase price of the said land.
“Third. I find that the defendants, Rich Thomas and Mary Thomas, on the 18th day of November, 1910, made, executed, and acknowledged a deed to R. B. Trabue, conveying the lands in controversy, and that this deed is recorded in the deed records of Panola county, Texas, in vol. 22, page 336, and that the consideration and payment of three certain vendor’s lien notes given by Rich Thomas to R. E. Tra-bue, two of said notes for $75.00, and one of said notes for $112.30, said notes being a part of the purchase money of the lands described in this suit, said notes being dated December 20, 1901, and that the said notes provided for the payment of interest at the rate of ten per cent, per annum from their date, and I find that only the sum of $51.00 was paid upon the said notes and interest, and that this payment was made on the 20th day of October, 1902, and that'plaintiff had no notice of this.
“Fourth. I find that on the 18th day o'f November, 1910, R. E. Trabue executed a deed to Rich Thomas, conveying the land in controversy in this suit, and that in said deed the notes sued upon herein were recited, and that the notes were given for the purchase price of the said land, and that said notes reserved a lien upon the land in controversy; and I further find that the deed from the said R. E. Trabue to Rich Thomas was not placed of record, and that the plaintiff, R. P. Ash, had no notice of such deed, either actual or constructive.
“Fifth. I find that the plaintiff, R. P. Ash, purchased the four notes sued upon in this case from R. E. Trabue, before maturity, and that he paid the face value of the notes therefor, and that at the time he purchased the said notes the said Ash had no knowledge of any defect in the notes, or that the defendants were claiming the said property as their homestead.
“Conclusions of Law.
“I conclude as a matter of law that said notes, having been given for the purchase price of the land described in plaintiff’s petition reserving a vendor’s lien upon the said land for their 'payment, are valid and subsisting obligations, and that the lien is valid and subsisting, and that the plaintiff, R. P. Ash, is an innocent purchaser of the said notes, having paid value before maturity for the same, and that therefore the plaintiff is entitled to a judgment for the full amount of the said notes, interest, and attorney’s fees, and that the vendor’s lien as it existed on the 18th day of November, 1910, be foreclosed to satisfy the same, and judgment will accordingly be entered.”

The first assignment of error challenges the correctness of the trial court’s judgment, in so far as the same ordered a foreclosure of the lien claimed by defendant in error upon the ground that the judgment in that respect was contrary to the law and the evidence, for the reason that the uncontra-dicted evidence showed that the defendants bought the land from one E. A. Hull in December, 1889, and went into possession of the same, and claimed the same and paid the consideration therefor to Hull, and that their title was perfected by the statutes of limitation of 10 years before the deed was made by R. B. Trabue to Rich Thomas on December 20, 1901. The proposition under this assignment is as follows:

“A person buying 50 acres of land, and goes into possession, pays the price, and' lived on the land from December, A. D. 1889, until December the 20th, 1901, 12 years, and said occupancy continued openly, adversely, peaceably, being more than 10 ^ears, and claimed as a homestead, then the said land would become the homestead, and the husband would have no power to sell the same or to waive the homestead right of his wife therein without her consent given in writing as required by law.”

It appears from the record in this case that in the early part of 1889, perhaps in January of that year, the defendant Rich Thomas paid to one E. A. Hull $150 for the 50 acres of land'here in question, with the understanding that Hull was to make him a deed for this land; that on the next day Hull told Thomas that he could not make him a deed to the land, for the reason that he (Hull) did not own the land, but that the land was owned by Mr. Trabue. The record is silent as to any further transactions between Rich Thomas and Hull in connection with the sale and purchase of this land, but it is shown that thereafter, though the record is indefinite as to time, R. E. Trabue agreed to sell Thomas this 50 acres of land, and negotiations between them looking to that end were commenced, and resulted in Trabue’s selling the land by deed to Rich Thomas on December 20, 1901.

At that time, and for‘several years, perhaps, prior to that time, Rich Thomas, wi.th his family, was residing upon this tract of land; but the record fails to disclose that Rich Thomas, after being informed by Hull that this tract of land belonged to Trabue, ever set up any claim to the land which was adverse to Trabue, and, indeed, the record is clearly insufficient to show that the possession of Thomas and family of the tract of land in question from the time that Thomas paid Hull for the land, and up to the time that Thomas again bought the land from Trabue, was of that adverse character as to Trabue which would perfect title-in Thomas as against Trabue under the statute of limitation of 10 years.

We understand the rule in this state to be that no presumptions are indulged in favor of a claimant of land seeking to acquire title by limitation, but that the burden is upon such claimant to prove every necessary or essential fact, in connection with his possession and claim, which go to make up or give title by limitation; and, since that burden is not shown by this record to have been met we overrule the first assignment without further discussion:

The second assignment of error is as follows:

“The court erred in foreclosing the lien on the land because the uncontroverted facts show that the land was the homestead of defendants, and the uncontroverted facts show that some of the amount expressed in said notes -was not a part of the purchase money for said land, and the plaintiff failed to prove what amount of said notes was for the purchase money due, if anything, on said land.”

The proposition under this assignment is, in effect, that where a note sued on is shown to have been given partly for merchandise or other-matter, the court should not enforce a vendor’s lien, although part of the note may be for payment of land, unless the exact portion of the note given for the land be shown. This assignment requires a brief statement, at least, of some of the transactions between R. E. Trabue and Rich Thomas. As stated above, when R. E. Tra-bue sold the 50 acres of land in question to Rich Thomas, on December 20, 1901, Thomas executed three notes evidencing a part of the purchase money therefor, the three notes so executed amounting to $262.30, which said notes were made payable one, two, aiid three years, respectively, after date, and bore interest at the rate of TO per cent, per annum from their date, and further provided for ten per cent, additional as attorney’s fees if they should be placed in the hands of an attorney for collection, etc. It is certain from the record that all of the purchase money for this land, as evidenced by these three notes executed in December, 1901, was never paid by Thomas to Trabue, and that a large portion of this money was due and payable to Trabue on November 18, 1910, at the time Rich Thomas and wife, Mary Thomas, executed to (R. E. Trabue his deed conveying to Trabue the 50 acres of land in question; but it is also reasonably certain, from the testimony found in this record, that the interest on these notes was kept paid up pretty well, though it is impossible for this court to say exactly what amount of money was paid Trabue on these notes when the transaction of November 18, 1910, took place, at which last-named date the four notes sued on were executed by Thomas to Trabue in the principal sum, in the aggregate, of $602.-61.

' At the time of the execution of the notes herein sued on of date November 18, 1910, plaintiffs in' error were residing upon the 50 acres of land in question as their homestead, and had always claimed the same as such, and continued to occupy the same as such from the date of their purchase from Trabue in December, 1901; and it is made reasonably certain and clear by the record in this case that at the time Rich Thomas executed the four notes sued on, in November, 1910, he was indebted to R. E. Trabue for the full amount for which the four notes sued on were executed; but it is also reasonably certain and clear to us that not all of this indebtedness was for the purchase money of the land in question, which was conveyed to Thomas by Trabue in 1901, but that a portion of this indebtedness was of a different character. Now, it is true that the trial court, by its second finding of fact, said that the notes sued on herein were given for the purchase price of this 50 acres of land, and, if the evidence in this record were sufficient to sustain this finding of fact on the part of the trial court, it would be our duty to adopt such finding, and we would do so; but, to our minds, this record discloses, beyond any reasonable contention, that this finding of fact of the trial court cannot be sustained by the evidence. We have concluded, on the contrary, that these four notes were not given for the purchase money alone that was due Trabue by Thomas for this land.

Now, the court further found, as above showin, that the defendant in error, R. P. Ash, at the time he purchased the notes sued on herein from Trabue, had no notice, either constructive or actual, that these four notes executed by Thomas were anything other than they purport to be — that is, purchase-money notes for the 50 acres of land in question, and that Ash having paid value for them, and having purchased them before maturity and in good faith, would be protected as an innocent purchaser of said notes, and the lien given to secure the same, even though said notes were not what they purported to be, and even though they might have been executed in payment of some other indebtedness as well as for thé purchase money due Trabue for said land.

As Thomas and wife were actually residing upon this property at the time of the execution of these notes, in November, 1910, as their homestead, and since the record in this case shows that on that day Thomas and wife made a deed conveying to Trabue this tract of land, and thereupon and on the same day Trabue reconveyed by deed the same land to Thomas, we hold that the effect in law of this transaction between Trabue and Thomas was but an attempt to create a lien upon the homestead of Thomas and wife, and that such attempt could only be successful to the extent of the unpaid purchase money which was at that time due Trabue under the sale to Thomas in December, 1901, and to that extent only; and if all of the money evidenced by these four notes had been in fact due Trabue as purchase money for said land under the transaction of December 20, 1901, we would not hesitate, of course, to hold that there was no inhibition, either constitutional or stat-tory, against the attempt of Thomas to incumber this land for the payment of its purchase money, because, in our opinion, such attempt on his part would be, in effect, but a renewal of the old notes and a continuation of the old debt for the purchase money for this land, and therefore this attempted lien would be valid even as between Trabue and Thomas, and, of course, would be’ perfectly valid and enforceable by Ash, who was found by the trial court to be an innocent purchaser of the notes sued on. But since we have concluded that the trial court’s finding of fact in the second paragraph cannot he sustained by the evidence in this record, and since we find that these four notes were executed in part for an indebtedness other than the purchase money due Trabue for said land, and since the law gives to the transaction between Trabue and Thomas and wife on November 18, 1910, the effect of a mortgage only, which could only be valid under the Constitution and laws of this state as to a homestead to the extent of the purchase money then due for the land, and since the actual occupancy of Thomas and wife of the land in question, considered in connection with the deed from Thomas and wife of November 18, 1910, and the deed back to Thomas and wife from R. E. Trabue at the same time, of which Ash had actual knowledge by recitation in the face of each of the notes purchased by him and here sued on, he cannot be protected as an innocent purchaser of the attempted lien oh said land to any f urther{ extent that the purchase money that was actually due Trabue on November’ 18, 1910, for the land in controversy. Swain v. Cato, 34 Tex. 398; Wasson v. Davis, 34 Tex. 168; Sutton v. Sutton, 39 Tex. 552; Sanger Bros. v. Brooks, 101 Tex. 115, 105 S. W. 37; Wadsworth v. Powell, 191 &. W. 169.

The third assignment of error is, in effect, disposed of by what we have said in connection with the second assignment, and also the fourth assignment (incorrectly numbered fifth assignment) is, in effect, disposed of by what we have said in connection with the first assignment.

We have concluded that the trial court was correct in rendering judgment in favor of defendant in error as against plaintiff in error Rich Thomas for the amount of the notes, principal, interest, and attorney’s fees sued on, but we are of opinion That the trial court was not justified or authorized by the evidence in this case to render judgment in favor of defendant in error foreclosing the lien on the 50 acres of land in controversy to the full extent of this personal judgment; and since the record is not in such shape that this court can ascertain, with reasonable .certainty, just what amount of money was due R. E. Trabue on November 18, 1910, by Rich Thomas, as purchase money for the 50 acres of land in question, but is clearly of the opinion, from the evidence in the record, that the trial court was not justified in finding as a fact that all of the money represented by the four notes sued on was due Trabue as such purchase money, we have concluded that it is the duty of this court to affirm the case in so far ás the personal judgment against plaintiff in error Rich Thomas is concerned, and to reverse the judgment in so far as the same forecloses a lien upon the land in question to the full extent of that judgment, and to remand the cause, with instructions to the trial court, on a new trial, to proceed to ascertain what amount was actually due iR. E. Trabue on November 18, 1910, by Rich Thomas, as purchase money for this tract of land, under the transaction between them of December 20, 1901, and, when that amount of indebtedness is ascertained, the trial court will then proceed to foreclose the lien on the land in favor of defendant in error to the extent of such unpaid purchase money.

Affirmed in part and reversed and remanded in part, with instructions.

BROOKE, J., disqualified and not sitting.
      <§rr?For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes