author: RICE, J.

text:
    SOVEREIGN CAMP WOODMEN OF THE WORLD v. WAGNON.
    (Court of Civil Appeals of Texas. Austin.
    Jan. 21, 1914.
    Rehearing Denied March 25, 1914.)
    1. Trial (§ 365) — Special Interrogatories —Construction.
    Where the court submitted a special issue whether the insured had failed to pay his lodge dues and assessments due on certain dates, the only fact to be found was whether the payments were made; the question whether they were due being one of law for the court in construing the by-laws of the order introduced in evidence.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 871-874; Dec. Dig. § 365.]
    2. Trial (§ 365) — Special Interrogatories —Inconsistent Findings.
    An answer to such issue, reading, “No,' no April dues on May 1st, 1912,” is to be construed as meaning that no dues were due ori that. date, not that the insured did not fail to' pay them, where the answer to another issue found that the payments were not made by the insured or by any one for him.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 871-874; Dec. Dig. § 365.]
    3. Insurance (§ 827) — Mutual Benefit Insurance-Actions for Benefits — Special Interrogatories — Inconsistent Findings.
    Even if there was a conflict between these' two findings, that conflict must be reconciled by' reference to the record, and, where the undisputed evidence shows that payments were not made and another finding was in harmony therewith, the jury must have intended to find that the insured failed to pay his assessments.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 2011; Dec. Dig. § 827.]
    4. Judgment (§ 256) — Mutual Benefit Insurance — Actions for Benefits — Special Interrogatories — Conformity of Judgment to Findings.
    The fact that the jury also found that the assessments were not due and the suspension of the member improper does not authorize a judgment on the findings for the beneficiary, since that question was one for the court and not for the jury.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 446-454; Dee. Dig. § 256.]
    5. Insurance (§ 754) — Mutual Benefit Insurance— Suspension — Waiver — Local Q ft'li'TCRR
    Under Rev. St. 1911, § 4847, providing that no subordinate body of a fraternal beneficiary association could waive the provisions of the laws or constitution of the body, an agreement by the clerk of a local camp to pay the assessments of a member when due, which agreement was beyond his authority, under the by-laws, is no defense to a suspension for nonpayment of dues, especially where there is no evidence that the sovereign camp had any notice of the agreement.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1906; Dec. Dig. § 754.]
    6. Insurance (§ 761) — Mutual Benefit Insurance — Reinstatement—Certificate of Health — Necessity.
    Where the .by-laws of a mutual benefit association required the payment of dues for reinstatement after suspension to be accompanied by a certificate that the insured was in good health, a tender not .accompanied by such certificate does not entitle a member to reinstatement. _
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1924; Dec. Dig. § 761.]
    7. Insurance (§ 754) — Mutual Benefit In- • surance — Nonpayment of Dues — Excuse— Insanity.
    Where the by-laws of a mutual benefit association required it to pay the dues of a member who was insane and financially unable to pay his dues, but provided that such payments should not be made if the member was in arrears more than three months, the association was not required to pay the dues where no proof of the insanity of a member was offered until six months after his suspension for nonpayment and more than three months after his death.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1906; Dec. Dig. § 754.]
    Appeal from Coleman County Court; F. M. Bowen, Judge.
    . Action by Nora Wag non against Sovereign Camp Woodmen of the World. Judgment for plaintiff, and defendant appeals.
    Reversed, and judgment rendered for defendant.
    Woodward & Baker, of Coleman, and Flip-pen, Gresham & Freeman, of Dallas, for appellant. Snodgrass, ijibrell & Snodgrass, of Coleman, for appellee.

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

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

   RICE, J.

This suit was brought by appel-lee against appellant to cover $1,000, alleged to be due her as beneficiary under a fraternal certificate of life insurance, issued by appellant upon the life of her deceased husband, G. John Wagnon. Appellant denied liability under said certificate, alleging the forfeiture thereof before the death of said Wagnon, because of the nonpayment of dues and assessments. In reply to appellant’s defense, appellee, as shown by her brief, denied that her husband had been suspended, or that he had failed to pay his assessments and dues as represented by appellant, and alleged "that if at any time his dues had not been paid, as required by the by-laws of appellant, then at the time of said nonpayment, if any, deceased was excused from payment thereof under section 126 of the by-laws of said order relating to insane members, because he was insane at the time of such default, if any, and continuously from that time until the date of his death, and on account of such insanity was totally incapable of attending to the payment of his dues and assessments, and, in addition thereto, financially unable to pay them. She further alleged that prior to the death of her husband she, or other persons for her, tendered all dues and assessments that might be owing by him to said order, and its local camp, and that the same were refused. She further alleged that she had an agreement with the clerk of said local camp that he would notify her in time for her to pay any assessments and dues before any delinquency might occur; and further that he would keep such assessments and dues paid, so as to avoid a forfeiture of the certificate, and that he would accept payment of such dues and assessments from her later, and that, if he (the clerk) became unwilling to so pay such assessments and dues, he would notify appellee, so that she could pay them herself, and that she relied upon said agreement; but that the clerk of said camp failed to notify her until after he claimed the suspension had taken place; and that she then had the assessments and dues claimed tendered, but same were refused. Appellee further alleged that, subsequent to the death of her said husband, she, through her attorneys, offered to furnish appellant the evidence of at least two competent and reputable physicians that the insured; G. John Wagnon, was insane on May 1, 1912, and continuously from that time until his death, and from such insanity totally incapable of attending to the payment of his assessments and dues, and in addition thereto financially unable to pay them, and that appellant declined to receive such evidence.

The case was submitted on special issues, upon the answer to which the court rendered judgment for appellee, which is assigned as error, on the ground that the same was in contravention of said findings. The jury, amongst other things, found that the deceased was suspended by appellant on the 1st day of May, 1912. If this suspension was on account of his failure to pay his assessments and dues, in accordance with the by-laws of -the order when due, then the same was proper, and would defeat appellee’s right to recover, unless excused therefrom by some of the other" reasons set up in her pleadings. But she insists that the judgment in her behalf is correct, because the verdict showed that her husband, the deceased, was not in default at the time of such suspension.

We differ with appellee in her construction of the verdict; and, in order to show the futility of her contention, it becomes necessary to set out the special issues submitted by the court to the jury, and the answers thereto, in so far as they relate to the matter in hand: Issue No. 3: “Did the said G. John Wagnon fail to pay all dues and assessments due by him to the Sovereign Camp of the Woodmen of the World and the Silver Valley Camp No. 1900, for the month of April, 1912, due on the first day of May, 1912? Answer yes or no. Answer: No, no April dues on May 1st, 1912.” Issue No. 4: “Did the said G. John Wagnon fail to pay all dues and assessments due by him to the Sovereign Camp of the Woodmen of the World and the Silver Valley Camp No. 1900, for the month of May, 1912, due on the first day of June, 1912? Answer yes or no. Answer: Yes. No May dues on June 1st, 1912.” Issue No. 5: “Did the said G. John Wag-non, or any other person for him, pay the assessments and dues due by him to the Sovereign Camp of the Woodmen of the World and to the Silver Valley Camp No. 1900, which were due on or before the first day of May, 1912, or on the 1st day of June, 1912? Answer yes or no. Answer: No.”

The only fact in issue under these findings was whether or not the insured paid his April and May, 1912, assessments when due. The question of when they were due was one of law for the determination of the court and not the jury, the due date of such payments being fixed by the by-laws of said order offered in evidence, and the court so instructed the jury. It is evident that neither the deceased, nor any one else for him, paid the same, as shown by the answer of the jury to the fifth issue.

But it is insisted that the' answer to the third issue shows that he did not fail to do so. We think this answer must be construed to mean that the dues referred to were not due on the 1st of May, 1912, rather than that he did not fail to pay them.

But even if there is an apparent conflict in these findings, then such conflict must be reconciled by reference to other matters in the record. The undisputed evidence is to the effect that deceased did not pay the April or May, or in fact any, assessment after that time. The answer to the fourth issue is in accord with this view. These several findings, when considered in connection with the undisputed evidence, justify us, we think, in holding that the jury intended to find, and did in fact find, that the deceased failed to pay his assessments when due, and was properly suspended, and his certificate forfeited on account thereof.

Nor does the fact that the jury found that such suspension was improper militate against this view, because whether the same was proper or improper was a matter of law for the court, upon the facts found, and not a matter for the jury. Hence we conclude that the judgment was improperly rendered in appellee’s behalf so far as this issue was concerned.

It is no defense that the clerk of the local camp agreed to pay the assessments when due, or notify Mrs. Wagnon in- case he should decide not to do so, because under (the by-laws of said order he had no authority to do that. Besides this, it does not appear that the Sovereign Camp had any notice of any such agreement on his part. Such an agreement, if any, in the absence of such notice, was not binding upon the order. See article 4847, R. S.; United Moderns v. Pike, 76 S. W. 774; Brotherhood of Railway Trainmen v. Dee, 101 Tex. 597, 111 S. W. 396; McWilliams v. Modern Woodmen of America, 142 S. W. 641.

Nor was the deceased entitled to reinstatement on account of the tender of assessments and dues, because such tender was not accompanied by a written statement that he was in good health and not addicted to the excessive use of intoxicants or narcotics, as required by section 115 of the by-laws of the order.

It is urged on behalf of appellee, however, that, even if he was in default in these payments, still no forfeiture could follow for the reason that G. John Wagnon, the insured, was insane and incapable of attending to such payments, as well as financially unable to do so, on May 1, 1912, when such forfeiture was declared, and continued so until the time of his death; and notwithstanding appellee offered to furnish appellant satisfactory evidence thereof, as required by its by-laws, it refused to receive such proof. Section 126 of said by-laws read in evidence is as follows: “Upon the satisfactory evidence of at least two physicians that a beneficiary member of this order is insane and totally incapable from such insanity to attend to the payment of his assessments and dues, and in addition thereto financially unable to pay the same, the camp of which he is a member shall pay the same from its general fund. If a member at large, then the Sovereign Camp shall pay from its general fund all arrearages since he became insane and incapable; provided, however, such payments shall not be made if he is in arrears more than three months.”

The findings of the jury fail, we think, to show a compliance with this requirement on the part of appellee, because at the time such proof was tendered, to wit, November 11, 1912, the deceased was in arrears for more than three months. The proviso, in our opinion, was intended to apply to both the local and sovereign camps. The object of this section was to require the local or sovereign camp, as the case might be, upon proper notification and proof, to prevent a forfeiture by the payment of the dues and assessments of such member, provided that when such notification and proof was made the member was not in arrears for more than three months. In the instant case the finding is to the effect that proof was not made until November 11th, at which time the deceased was in arrears for more than three months. Certainly, it was not contemplated by this section that the notification and proof could be made at any time, even after the death of the insured, which occurred July 31, 1912.

From what we have said, it follows that we believe that judgment was improperly rendered for appellee, and that the saíne should have been rendered for appellant. We therefore now reverse the judgment of the court below and render the same in favor of appellant.

Reversed and rendered.


source: Caselaw Access Project

author: JENKINS, J.

license: Public Domain

text:
    HICKMAN et al. v. FERGUSON et al.
    (Court of Civil Appeals of Texas. Austin.
    Feb. 11, 1914.
    Rehearing Denied March 25, 1914.)
    1. Adverse Possession (§ 60) — Ten-Year Limitations.
    Plaintiff's remote grantor fenced and cultivated farms on a certain league, one of about 125 and one of 175 acres, and in 1843 built houses and barns thereon and occupied the houses by tenants or in person from 1843 to 1865, during which time he claimed all of the league as his own property, and never acknowledged as a cotenant another who purchased a part of the land from a common grantor, and probably never knew of him. Held, that he acquired title under the ten-year statute of limitations.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 282-312, 323, 328; Dee. Dig. § 60.]
    2. Tenancy in Common (§ 3) — Several Owners.
    While one who accepted a deed to a one-half undivided interest from a grantor claiming the entire tract would be presumed to be a cotenant with his grantor or the latter’s transferee of the remainder, if his grantor only claimed a half interest, and the remaining half was claimed adversely by several others of whose claims such grantee had actual and constructive notice, he was not a tenant in common with each of these claiming the remaining half, nor was he, as a matter of law, a tenant in common with the one having the best title to such half.
    [Ed. Note. — For other cases, see Tenancy in Common, Cent. Dig. §§ 5-17; Dec. Dig. § 3.]
    3. Tenancy in Common (§ 3) — Necessity of Agreement.
    Two persons who acquire an interest in land at different times by different instruments, without any understanding with each other as to the nature of their holdings, are not tenants in common, though they both hold under the same title.
    [Ed. Note. — For other cases, see Tenancy in Common, Cent. Dig. §§ 5-17; Dec. Dig. § 3.]
    4. Tenancy in Common (§ 4) — Evidence.
    Evidence in a suit for land held to show that the person under whom plaintiffs claimed, 'who then only held a conveyance for an undivided half interest, did not enter upon land as a cotenant of another, who held under a prior conveyance of the entire league from a common grantor.
    [Ed. Note. — For other cases, see Tenancy in Common, Cent. Dig. § 4; Dec. Dig. § 4.]
    5. Limitation of Actions (§ 44) — Real Property — Accrual of Action.
    A cause of action against one who entered upon land under an adverse claim accrued when the entry was made.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent Dig. §§ 220-230, 232; Dec. Dig. § 44.]
    Appeal from District Court, Liberty County; L. B. Hightower, Judge.
    Action by James E. Ferguson and others against P. F. Hickman and others. From a judgment for plaintiffs, defendants appeal.
    Affirmed.
    H. E. Marshall, of Liberty, for appellants. Stevens & Stevens, of Liberty, for appellee.

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

   Findings of Fact.

JENKINS, J.

This is a suit by appellees to recover 1,000 acres of land out of the southwest corner of the Jose D. Martinez league No. 9 in Trinity county, Tex. Ap-pellees were the owners of what is designated in the briefs of the parties as the Davis and Hardin titles, and appellants were the owners of what is designated as the Walling title.

The Davis Paper Title.

(1) On September 7, 1832, Martinez, having previously applied! to the proper officer of the government of Coahuila and Texas for a grant of 11 leagues of land, entered into a written agreement with Adolph Stern and Charles S. Taylor, in consideration of $200 cash and the assumption by them of all amounts due the government, to sell to them said 11 league grant “and to transfer in their favor the corresponding document as soon as he has obtained possession of same,” or, in other words, to make them a deed as soon as the grant is finally confirmed to him. This instrument was recorded in Liberty county October 23, 1902.

(2) On April 14, 1833, Stern for himself and as agent for “his partner, Chas. S. Taylor,” appointed William Hardin as their agent to obtain the final title from the government to said 11 leagues, and in consideration of $1,000 cash agreed to “convey and transfer to the said Hardin' the aforesaid writ of obligation of sale, with all its obligations, rights, and actions which in it is expressed by both parties.” This refers to his contract with Martinez. This instrument does not appear to have been recorded in Liberty county. No power of attorney was shown from Taylor to Stern.

(3) The final title to the 11 leagues was issued to Wm. Hardin, as attorney in fact for Martinez, November 28, 1883.

(4) On August 9, 1837, Martinez, for the expressed consideration of $10,000 cash, conveyed to Ohas. S. Taylor a one-half undivided interest in said 11 leagues of land. This deed was recorded in Liberty county, Tex., November 28, 1837, also April 19, 1844, and February 24, 1912.

(5) On April 10, 1843, Martinez conveyed a one-half undivided interest in said 11 leagues to James Davis, which deed was recorded in Liberty county, Tex., April 27, 1843, and on November 29, 1887.

(6) On December 12, 1850, Martinez made a second deed to James Davis for 5% leagues, an undivided half interest in said 11 Teagues, which recites that the grantor had theretofore sold the other undivided interest in said 11 leagues to Chas. S. Taylor. Recorded in Liberty county, May 30, 1853. We construe this deed to be supplemental to and explanatory of the first-mentioned deed from Martinez to Davis, and that the two were intended to be taken together, as conveying to Davis a one-half undivided interest in said 11 leagues of land.

(7) On April 10, ,1843, Chas. S. Taylor and H. Washington • on the one part and James Davis on the other part executed to each other a partition deed to said 11 leagues of land, by the terms , of wfiich .all of league No, 9 was conveyed by Taylor and Washington to Davis in severality. It does not otherwise appear that H. W¿shington ever had any interest in the lands mentioned in the deed of partition. This deed was recorded in Liberty county, Tex., February 13, 1895.

(8) It was further shown that appellees owned whatever title was acquired by James Davis and his heirs, and whatever title was acquired by Wm. Hardin and his héirs, and also whatever title, if any, was acquired by Davis under the statute of limitations which were pleaded by appellees heréin.

The Walling Title.

(9) On November -, 1837, Martinez conveyed to Jesse Walling all of league No. 9 of the said 11-league grant.' This deed was recorded in Liberty county on November 6, 1837. Appellants by mesne conveyances are the owners of the Walling title of 1,000 acres out of the southwest corner of said league No. 9.

(10) The records of Liberty county were destroyed by fire December 11, 1874.

Facts as to Limitation.

James Davis fenced and cultivated two farms on league No. 9, one of about 125 acres and one of about 175 acres, and also built houses, barns, and lots on said farms in 1843, and occupied said houses, part of the time in person and part of the time .by tenants, from 1843 to and including 1865, during all of which time he claimed all of said league No. 9 as his own and adversely to every one else.

The first deed in appellants’ chain of title subsequent to the deed from Martinez to Jesse Walling is'from the executors of the will of said Walling, who died in Rusk county, Tex., August 4, 1867, which will and the deed from the executors, were filed for record in Liberty county, Tex., November 3, 1884. Said deed was executed October 15, 1884.

Several witnesses who lived- in Liberty county from 1843, 1844, 1845, and 1S50 to the date of the trial hereof (August 26,1912), and also some who lived in Polk county during the same period in which latter county James Davis lived a part of said time, testified that they never knew or heard of such a person as Jesse Walling; and we find that James R. Davis probably never knew Jesse Walling, and - never in fact acknowledged him as a eotenant of said league No. 9.

The trial court instructed a verdict for the appellees, and judgment was rendered accordingly.

Opinion.

We affirm the judgment of the trial court for the reason that the- Hardin title, which is owned by the defendants in error, is the superior legal title to the ■ land in controversy. For a full discussion of this title, see Surghenor v. Taliaferro, 98 S. W. 648.

We sustain the judgment of the trial court for the further reason that the undisputed evidence shows that James Davis, under whom appellees claim, acquired title, 'independent of the Hardin title, under the ten years’ statutes, as shown by our findings of fact herein.

It is contended by appellants that inasmuch as Davis entéred upon the land in. 1843, under a deed conveying to him only an undivided one-half interest, and the records of Liberty county then showed .that Walling had a deed from -Davis, grantor for the entire tract, Davis was the cotenant of Walling, and that' his possession cannot be construed as adverse to Walling, unless it be shown that Davis afterwards repudiated Walling’s title, and that notice of such repudiation was brought home to Walling.

We do not think that Davis was ever the eotenant of Walling. As to whether, a person who enters upon land under a deed conveying an undivided interest is the co-tenant of any particular person claiming the-remaining interest will depend upon the circumstances of the casé. If he accepts a deed to, say, a óne-half undivided interest from some one claiming the entire tract, it would be presumed that he was the eotenamt of his grantor and of his assignee, should his grantor afterwards convey his remaining interest in the land. Rut suppose his grantor claimed only a hálf interest, and there were a number of other persons each claiming the remaining half: interest adversely to each' other, and he had both actual and constructive notice of their respective claims, it could not be held' that he was a tenant in common with all of them and holding for each of them, nor, as a matter of law, that he was a tenant in common .with the one having the best title. He might by agreement with one of the claimants, who in fact had no title, enter and hold possession as tenant in common with such claimant.

Where two parties acquire an interest in land at different times and by different .instruments, without any agreement or understanding with each other, though under the same title, they do not thereby become . tenants in common. Roberts v. Thorn, 25 Tex. 737, 78 Am. Dec. 552; Ripptoe v. Dwyer, 49 Tex. 505; Dwyer v. Ripptoe, 72 Tex. 534, 10 S. W. 668.

The deed to Walling conveys the entire tract; the deed to Davis conveys a half interest. Had Walling taken possession, it could not be contended that he did so as the cotenant of Davis. We think it is equally clear that Davis did not enter as the cotenant of Walling. The fact that Walling’s deed conveyed to him the entire tract, and that Davis, having a deed to a one-half interest, subsequently purchased the other half interest, not from Walling or his assignee, but from a party claiming adversely to Walling, clearly indicates that their claims were ad: verse to each other. It is true that, as Davis had a deed to only a half interest when he took possession, there is a reasonable presumption that he was holding as the eotenant of some one. But of whom? Some one who was not claiming adversely to him. Who this party was is clearly shown by the second deed made to Davis, by Martinez, wherein it is recited that his grantor, Martinez, had previously conveyed the other half interest to Taylor. This is confirmed by the deed of partition between Taylor and Washington on the one part and Davis on the other part. Presumably Washington had acquired a portion of Taylor’s interest; when or how does not appear and is immaterial.

The possession of one claiming an undivided interest in land is adverse to all the world except his cotenant, and as against any one, except such. cotenant, ten years’ actual and peaceable possession will give him a good title. The language of the statute is: “Any person who has the right of action for the recovery of any lands, tenements or hereditaments against another having peaceful and adverse possession thereof, cultivating, using or enjoying the same, shall institute his suit therefor within ten years next after his cause of action shall have accrued, and not afterwards.” R. S. art. 5675.

Walling’s cause of action accrued when Davis entered upon the land in 1843, and Davis’ claim to the extent of the boundaries described, in the instrument under which he held became a perfect title as against Walling in 1853. R. S. art. 5679. Davis acquired the undivided interest of, his cotenant Taylor by virtue of the partition deed hereinabove’ referred to, April 10, 1843. Craig v. Cartwright, 65 Tex. 421, 423.

For the reasons stated, the judgment of the trial court is affirmed.

Judgment affirmed.


text:
    ST. LOUIS SOUTHWESTERN RY. CO. v. DUNCAN.
    (Court of Civil Appeals of Texas. Austin.
    Feb. 11, 1914.
    Rehearing Denied March 18, 1914.)
    1. Evidence (§ 208) — Admissions.
    In an action against a railroad company for personal injuries sustained by plaintiff’s wife, the railroad company may introduce abandoned pleadings of plaintiff wherein he contended that part of the injuries were due to the negligence of other railroad companies and plaintiff may introduce evidence to minimize and explain such admissions.
    [Ed. Note. — For other cases, see Evidence,. Cent. Dig. §§ 713-725; Dec. Dig. § 208.]
    2. Evidence (§ 263) — Admissions — Rebutting Evidence.
    On the second trial of an action against a railroad company for injuries to plaintiff’s wife, the company introduced as admissions plaintiff’s, abandoned pleadings, wherein he charged other railroad companies with liability fqr part of the injuries. Held, that the charge of the court on the first trial directing the jury to find in favor of such other railroad companies was not admissible to qualify the admission.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1022-1027; Dec. Dig. § 263.]
    3. Appeal and Ebeob (§ 1052) — Review— Harmless Eebob.
    In an action for injuries to plaintiff’s wife, the defendant introduced plaintiff’s abandoned pleadings charging other railroads with negligence which contributed to the injury, and to-minimize the effect of the admission plaintiff erroneously introduced the charge of the court which on the first trial directed a verdict for the other companies. Held that, as the jury only awarded $2,500 damages for the miscarriage for which defendant was alone responsible, the erroneous admission of the evidence must ,be considered harmless within Court Rule 62a, providing that no judgment shall be reversed for any error not reasonably calculated to cause, and which probably did cause, the-rendition of an improper verdict.
    [Ed. Note. — For other cases, see Appeal and' Error, Cent. Dig. §§ 4171-4177; Dec. Dig. §. 1052.]
    4. Damages (§ 130) — Personal Injubies— Excessiveness.
    Where the injuries to plaintiff’s wife resulted in her miscarriage, which caused great ain and entailed much expense, a verdict oí 2,500 was not excessive.
    [Ed. Note. — For other cases, see Damages. Cent. Dig. §§ 357-367, 370; Dec. Dig. § 130.]
    Appeal from District Court, Milam County ; J. C. Scott, Judge.
    , Action by. T.' J. Duncan against the St. Louis Southwestern Railway Company. From. a judgment for plaintiff, defendant appeals.
    Affirmed.
    See, also, 55 Tex. Civ. App. 440, 121 S. W. 362.
    E. B. Perkins, of Dallas, and Henderson, Kidd & Gillis, of Cameron, for appellant. R. B. Pool and W. A. Morrison, both of Cameron, for appellee.

      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-NoV Series & Rep’r Indexes

   RICE, J.

This suit was originally brought by appellee against appellant and the Texas & Pacific and the International & Great Northern Railways, to recover damages for injuries suffered by his wife while a passenger over their lines from Memphis, Tenn., to Taylor, Tex., alleging that by a combination of negligent acts on the part of appellant she was caused to miscarry before reaching Tex-arkana, where she was detained for medical treatment at a sanitarium for a period of seven or eight days, and, on resuming her journey, suffered additional injuries on account of the negligent failure of said other railways to properly heat and ventilate their cars and depots, as will more fully appear by reference to the first appeal of this case, reported in 55 Tex. Civ. App. 440, 121 S. W. 362. On the trial of that case, appellee dismissed as to the Texas & Pacific, and the court instructed a verdict in behalf of the International & Great Northern Railway Company, and on an appeal from that judgment the appeal was reversed as to appellant, but affirmed as to the other two companies.

On the second trial, from which this appeal is prosecuted, appellee so amended his petition as to state a cause of action solely against appellant. On the trial of this case, appellant introduced in evidence certain statements from the plaintiff’s original and amended petition on the former trial, wherein it was claimed that his wife suffered injury on account of the failure to properly heat and ventilate its depots and cars. Whereupon appellee in rebuttal, over appellant’s objection, read in evidence the charge and judgment of the court on the former trial, wherein it appeared that plaintiff had dismissed the case against the International & Great Northern, and the court had instructed a verdict in behalf of both companies, and judgment was entered in accordance therewith. Appellant assigns error upon this ruling, insisting that such evidence was irrelevant and inadmissible and was res inter alios acta. Appellant, under its general denial, even though it had caused the miscarriage complained of, had the right to show that the other injuries alleged did not result therefrom, but were occasioned by the negligent acts of the other companies. It also had the right to show that plaintiff had admitted that a part of the injuries resulted from the negligent conduct of the other defendants, and in doing so it might offer evidence of admissions of appellee to this effect, notwithstanding such admissions might be contained in his abandoned pleadings. See Barrett v. Featherstone, 89 Tex. 567, 35 S. W. 11, 36 S. W. 245; Wright v. U. S. Mortg. Co., 54 S. W. 368; G., H. & S. A. Ry. Co. v. Eckles, 54 S. W. 651; Jordan v. Young, 56 S. W. 762; Southern Pac. Ry. Co. v. Wellington, 57 S. W. 857; First Nat. Bank v. Watson, 66 S. W. 234. It was the privilege of appellee, however, to deny or minimize the effect thereof by explaining such admissions, if he could, by showing, for instance, that they were made under a misapprehension of fact by his counsel.

But certainly the judgment of the court directing the jury to find in favor of such other companies was not admissible for either purpose. The charge may have been given on the ground of plaintiff’s failure to offer evidence to support his pleadings, or for other reasons. At any rate, in our judgment, the evidence was not admissible. See Choate v. Huff et al., 18 S. W. 87; H. & T. C. R. R. Co. v. Wilson, 50 S. W. 157; Boehm v. Calisch, 3 S. W. 295; 17 Cyc. 274.

We are not inclined, under the facts of this case, to hold, however, that this is reversible error, because we are not prepared to say that an improper verdict was rendered on account thereof, nor are we disposed to believe that on another trial a different result would be reached. Rule 62a for the guidance of Court of Civil Appeals (149 S. W. x) provides that: “No judgment shall be reversed on appeal and a new trial ordered in any cause on the ground that the trial court has committed an error of law in the course of the trial, unless the appellate court shall be of the opinion that the error complained of amounted to such a denial of the rights of appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case, or was such as probably prevented the appellant from making a proper presentation of the case to the appellate court. * * * ”

There is no complaint of the charge, nor that the evidence did not warrant the judgment. The miscarriage for which appellant alone was responsible resulted in great pain and suffering and entailed much expense, and the verdict awarding $2,500 therefor was not, in our judgment, excessive. A judgment for like amount has been sustained by this court for a like injury. See Citizens’ Ry. Co. v. Griffin, 49 Tex. Civ. App. 569, 109 S. W. 999. Admission of immaterial evidence is not ground for reversal of a judgment, where the facts shown by other legal evidence support the verdict. See Wilson & Martin v. Lucas, 78 Tex. 293, 14 S. W. 690. Nor is it cause for reversal, where it is apparent that no injury was done. See L. & L. & G. Ins. Co. v. Ende, 65 Tex. 121; Hughes v. Railway Co., 67 Tex. 597, 4 S. W. 219; Tucker v. Smith, 68 Tex. 478, 3 S. W. 671; Railway Co. v. Thompson, 75 Tex. 505, 12 S. W. 742; White v. Wadlington, 78 Tex. 162, 14 S. W. 296; Patten v. Belo, 79 Tex. 48, 14 S. W. 1037; McCamant v. Roberts, 80 Tex. 324, 15 S. W. 580, 1054; Railway Co. v. Greathouse, 82 Tex. 108, 17 S. W. 834.

In the state of the record we hold that, while the court committed error in admitting said testimony, still the same was harmless.

The remaining assignment, being regarded by us as without merit, is overruled.

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

Affirmed.


author: KEY, C. J.

text:
    KANSAS CITY, M. & O. RY. CO. OF TEXAS et al. v. TREADWELL & WILKISON.
    (Court of Civil Appeals of Texas. Austin.
    Feb. 4, 1914.
    Rehearing Denied March 18, 1914.)
    1. Tbial (§ 333) — 'Vebdict—Subbltjsage.
    Where, in an action against three railroad companies, the court told the jury, if they found for plaintiffs, to apportion the damages between the defendants, but to return a joint verdict against two of them, if they were found to be partners and acting jointly, and the jury returned a verdict against such two companies for a specified amount, and against the third company for a specified amount, the verdict was not vitiated or rendered ambiguous, though it stated the total amount to be less than the sum of the amounts found against the different defendants.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 784, 786; Dec. Dig. § 333.]
    2. Telal (§ 339) — Vebdict—Amendment ob Cobbection.
    Where the jury found for plaintiff for $6,-800, and also found against two of the defendants jointly for $6,404.28, and against the third defendant for $1,280.85, the court did not err in recalling the jurors after they had been discharged and left the courtroom, but while they were still in the building, in directing them to correct their verdict, and in receiving the corrected verdict stating the whole amount as the sum of the amounts awarded against the different defendants.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 791-794; Dec. Dig. § 339.]
    3. Tbial (§ 240) — Insteuctions—Abgumen-tative Insteuctions.
    An instruction so framed as to present a question in an argumentative manner was properly refused.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 561; Dec. Dig. § 240.]
    4. Tbial (§ 193) — Insteuctions—Weight oe Evidence.
    In an action against carriers for negligence in transporting a shipment of cattle, an instruction which might have conveyed the impression that the court did not believe the evidence justified a finding that defendants were negligent was properly refused.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 436-438; Dec. Dig. § 193.]
    5. Appeal and Eeboe (§ 1068) — Haemless Ebbob — Insteuctions.
    In an action for negligence in transporting a shipment of cattle, the refusal of an instruction that a carrier was not responsible for natural and unavoidable damage, if it exercised ordinary care in handling and transporting the cattle in a reasonable time and without unnecessary or unusual rough handling or treatment, was not reversible error, conceding that it might properly have been given, since the jury, by finding for plaintiff, necessarily found that the carrier did not exercise ordinary care in handling and transporting the cattle within a reasonable time, and that there was unnecessary or unusual rough handling or treatment.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4225-4228, 4230; Dec. Dig. § 1068.]
    Error to District.Court, Tom Green County; J. W. Timmins, Judge.
    Action by Treadwell & Wilkison against the Kansas City, Mexico & Orient Railway Company of Texas, the Kansas City, Mexico & Orient Railway Company, and another. Judgment for plaintiffs, and the defendants named bring error.
    Affirmed.
    H. g. Garrett and Blanks, Collins & Jackson, all of gan Angelo, for plaintiffs in error. Hill, Lee & Hill, of gan Angelo, for defendants in error.

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

   KEY, C. J.

The following statement of the nature and result of this suit is copied from the brief of plaintiff's in error:

“On April 7, 1911, Treadwell & Wilkison sued the Kansas City, Mexico & Orient Railway Company of Texas, the Kansas City, Mexico & Orient Railway Company, plaintiffs in error, and the Missouri Pacific Railway Company, as partners, for $10,765, alleged damages to 1,689 head of cattle while being transported by the defendants in three shipments from gweetwater, Tex., to Toronto, Kan.; the gravaman of the complaint being that the defehdants had failed to exercise ordinary care in the transportation and care of said cattle, and, as a result of such failure, 197 head of them died, and the others were badly injured.
“For answer, the plaintiffs in error, hereinafter designated as the Orient of Texas and the Orient of Kansas, interposed a general denial, a verified denial of partnership, and a special answer, 'asserting that the cattle in question had been handled by them under written contracts with the plaintiffs, wherein it was expressly provided that the cattle were not to be delivered within any specified time, that they were to be fed, watered, and cared for by the owners, and that no carrier was to be held responsible for any damages, except such as occurred on its own line; that the injuries to the cattle were not occasioned by any lack of care on their part, but were the direct and proximate result of the inherent poverty and weakness of said cattle; that at the time they were tendered to the Orient of Texas for shipment they were too poor, thin, and weak for the contemplated transportation; that for several months prior to their shipment they had been confined in pastures affording insufficient feed and water, and were so weak and impoverished as to be physically unfit for shipment, all of which was well known to the plaintiffs; and that the losses and injuries suffered by said cattle were the result of the negligence of the plaintiffs in shipping them in such weak and impoverished condition.
“In replication, the plaintiffs alleged that they had complied with all written agreements, and expressly denied all allegations tending to establish the defenses interposed by the Orients.
“In their supplemental answer the Orients alleged that the cattle were delivered to tl^em by a connecting carrier, the Texas & Pacific Railway Company, and that .under the law they were required to accept the same, • although it was apparent at the time that the cattle were unfit for shipment, being too thin and impoverished to stand a journey aboard the cars from Sweetwater, Tex., to Toronto, Kan.
“The answer of the Missouri Pacific consisted of a general denial and other special defenses, not material here, for the reason that such company has not appealed, and no issues are to be determined as between it and any other party to this record.
“The case was submitted to the jury, and resulted in two verdicts; the first one reading as follows: ‘We, the jury, find for the plaintiff in the sum of $6,800 actual damages, with 8 per cent, interest from date proportioned as follows: Against the K. C., M. & O. Ry. Co. and the K. C., M. & O. Ry. Co. of Texas, jointly, in the sum of $6,404.28, including 6 per cent, interest up to date, and against the Missouri Pacific Ry. Co. in the sum of $1,280.85, including 6 per cent, interest up to date. J. T. Garrett, Foreman.’
“There being some discrepancies in the verdict, just after the jury had been discharged, it was recalled by the court and sent out to correct the verdict, thereafter returning into court the following verdict: ‘We, the jury, find for the plaintiff in the sum of $7,685.13, proportioned as follows: Against K. C., M. & O. Ry. Co. and the K. C., M. & O. Ry. Co. of Texas, “jointly,” in the sum of $6,404.28, including 6 per cent, interest from April 20, 1910, to June 21, 1912, and against the Missouri Pacific Ry. Go. in the sum of $1,280.85, including 6 per cent, interest from April 20, 1910, to June 21, 1912. [Signed] J. T. Garrett, Foreman.’
“The exceptions of the Orients to these proceedings appear in their first bill of exceptions. Judgment was entered on the verdict June 17, 1912, awarding the plaintiffs $6,404.28, including interest from date at 6 per cent, per annum against the Orients jointly and severally, and $1,280.85, with interest from date at 6 per cent, per annum against the Missouri Pacific Railway Company. Judgment was also entered overruling all demurrers. Thereafter the Orients filed their amended motion for new trial, which, having been considered by the court, was overruled, notice of appeal noted, and the Orients allowed 90 days after the adjournment of court within which to prepare and file the statement of facts and bills of exceptions. The duplicate statements of facts were filed on the 11th day of September, 1912, as were the bills of exceptions.
“On May 12, 1913, the Orients filed application for a writ of error. The defendants in error expressly waived the issuance of citation in error, and agreed to appear in the Court of Civil Appeals in answer to the writ. Contemporaneously with the filing of the petition for writ of error, a writ of error bond was filed by the Orients and approved by the clerk. Assignments of error were filed before the transcript was taken out of the trial court.”

We deem it proper to add that no assignment has been presented complaining of the-verdict of the jury as not being sustained by the testimony, and we therefore assume and find that the defendants in the court below against whom judgment was rendered were guilty of negligence as charged in the plaintiffs’ petition, and that, as a proximate result thereof, plaintiffs’ cattle were damaged and injured to the full amount awarded by the verdict

Opinion.

The first and second assignments of error complain of the action of the.trial court in receiving and entering judgment upon the first verdict; while the third assignment complains of the court’s action in reassembling the jury and permitting the second verdict to be rendered, and basing the judgment upon that verdict. We overrule those assignments, and hold that no error was committed in that respect. The charge of the court instructed the jury, that, if they found in favor of the plaintiffs, to apportion the amount so found between the defendants, assessing against each only the damages, if any, that the evidence showed occurred on their respective lines, but authorizing a joint verdict against the two Orient railways, if they were found to be partners and acting jointly in the transportation of the cattle. The first verdict was against the two defendants who are now complaining, who were found liable, as partners, for $6,404.28, and against the other defendant, who has not appealed, for $1,280.85. These findings were certain and specific, and, while they exceeded the total amount stated in the preceding part of the first verdict, we do not think that fact created such an ambiguity as would vitiate the verdict. The-charge of the court did not require the jury to add the several amounts awarded to the-plaintiffs and state the total, and therefore the fact that the jury undertook to do so, and committed an error in addition, would net perhaps render the verdict too uncertain. In. other words, it would seem that the effort of the jury to state the total amount of damages could be disregarded and treated as surplusage. “If the verdict finds the issue and. something more, the latter part of the finding, will be rejected as surplusage, and judgment rendered independently of the unnecessary matter, there being nothing to show that the jury reasoned falsely.” 38 Cyc. 1890. See, also, Cook v. Garza, 9 Tex. 360; Hamilton v. Rice, 15 Tex. 385; Howard v. Kopperl, 74 Tex. 501, 5 S. W. 627; Gaines v. Bank, 64 Tex. 18; Railway v. Henderson, 73 S. W. 36; Scott v. Riddle, 153 S. W. 408. But, however that may be, we think the trial court had the power and discretion to reassemble the jury and have the verdict corrected under the circumstances and in the manner disclosed by the record. The only difference between the two verdicts is that the second one gives the aggregate amount of the damages awarded correctly, while the first one did not; and, in allowing the bill of exceptions in reference thereto, the trial court made this statement and explanation: “When the jury came in and announced that they had reached a verdict, the court received it from the foreman and handed it to the clerk, who read the same aloud, and thereupon the court stated to the jury that they were discharged for the term, except as to any special venires upon which they may have been drawn. The members of the jury then retired from the courtroom, and immediately after they had left the room the question of the insufficiency of the verdict was suggested; whereupon plaintiffs’ attorneys requested that the jury be recalled to correct the verdict. The court then directed the sheriff to have the members of the jury return to the courtroom; the clerk having stated to the court that they were downstairs in his office waiting for his deputy to issue them their scrips for the week’s service. The sheriff left the courtroom, and in a few minutes returned with all the members of the jury, stating that they were all in the clerk’s office, except one, whom he caught just as he left the courthouse, the time from the discharge of the jury and the return with the sheriff, as aforesaid, being about ten minutes. After the jury were brought into the courtroom, the court instructed them to retire and correct their verdict, when the objections were made and exceptions taken by the attorneys for the defendant, as shown by the stenographer’s report thereon inclosed in quotation marks in the foregoing bill, and likewise, when the jury returned into the court with their verdict a second time, the objections were made and exception taken by the defendants’ attorneys as shown by the stenographic report thereof inclosed in quotation marks in the foregoing bill.”

Treating the statement of the aggregate amount of damages awarded as immaterial, there was really no difference between the two verdicts; and we hold that the trial court committed no error in requiring the jury to be reassembled and make the correction referred to. McKean v. Paschal, 15 Tex. 37; Thomae v. Zushlag, 25 Tex. Supp. 226; Howard v. Kopperl, supra; Sigal v. Miller, 25 S. W. 1012. In presenting the questions relating to the verdict, counsel for the complaining litigants quote extensively, and seem to lay stress upon, the first opinion of this court in the case of S. A. & A. P. Ry. Co. v. Bolwes, 30 S. W. 90, and ignore the fact that, on motion for rehearing, this court very materially modified its ruling in that regard, as shown in its second opinion (30 S. W. 727).

The fourth assignment complains of a ruling admitting certain testimony; and, without discussing the question, we hold that no error was committed in that respect.

The fifth assignment challenges the correctness of a certain paragraph of the court’s charge, which paragraph, when construed in connection with other paragraphs, is not subject to the criticism urged.

The sixth assignment complains of that portion of the charge which submitted to the jury the question as to whether or not the two Orient defendants were partners and jointly interested in the transportation of the cattle, and in authorizing the jury, if they found such partnership arrangements, to return a joint verdict against those defendants, for the reason that there was no testimony sufficient to authorize the submission of that issue to the jury. We overrule that assignment, and hold that the testimony was amply sufficient to justify the action of the court in that regard.

The.requested instruction, the refusal of which is made the subject of the seventh assignment of error, was so framed as that the giving of it would have presented the question therein referred to in an argumentative manner, and, if given, might have conveyed to the jury the impression that the court did not believe that the evidence would justify a finding that the defendants were guilty of negligence, and, for that reason, that instruction was properly refused.

By the eighth assignment complaint is made, because the court refused to give the following instruction requested by the complaining litigants: “A carrier in transporting cattle over its line is not responsible for the natural and unavoidable damage suffered by such cattle as a result of being transported for such a distance as said cattle have been transported, provided such carrier exercises ordinary care in the handling and transporting of said cattle, within a reasonable time, and without any unnecessary or unusual rough handling or treatment.”

Counsel for plaintiffs in error contend that this charge should have been given, because the main charge omitted to direct the jury’s attention to the fact that carriers are not responsible for the natural and unavoidable injury suffered by cattle as a result of railroad transportation. Opposing counsel contend that that question was not presented by I the pleadings. We deem it unnecessary to ' decide whether or not the defense referred to could be urged under a general denial, or whether or not that defense was specially pleaded. If it be conceded that the charge in question might properly have been given, still we hold that the failure to give it constitutes no ground for reversing the judgment. By the very terms of the refused instruction, in order for the jury to have given the defendants in the court below any benefit under that charge, it would have been necessary, as required by its terms, for them to find that the defendants had exercised ordinary care in handling and transporting the cattle within reasonable time, and that there had' been no unnecessary or unusual rough handling or treatment. Now, if the jury had found all of those facts, then they would necessarily have found that the defendants were not guilty of any of the wrongful conduct and negligence charged by the plaintiffs, and, under the charge of the court, would have returned a verdict for the defendants. Therefore, as the jury necessarily found, in arriving at the verdict which they returned, that the defendants had not done the very things which the requested instruction required them to find had been done in order for tnat instruction to be of any benefit to the defendants, the refusal to give it does not constitute reversible error.

There are some other assignments which complain of the refusal of other requested instructions, which assignments have been considered and are, without discussion, overruled.

No reversible error has been shown, and the judgment is affirmed.

Affirmed.


author: KAY, C. J.

text:
    ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. MATTHEWS.
    (Court of Civil Appeals of Texas. Austin.
    Feb. 18, 1914.
    Rehearing Denied March 18, 1914.)
    1. Railroads (§ 351) — Operation — Condition op Tracks — Statutes.
    Under Rev. St. 1911, art. 1068, requiring every railroad to keep its roadbed and right of way at crossings in proper condition for the use of the traveling public under penalty, an instruction, in an action for injury to plaintiff, whose shoe caught between the rails, holding him until he was struck by a switch engine, that he had a right to presume that the tracks in the street where he was walking were in proper condition for the use of pedestrians was not objectionable as relieving him from the exercise of all care, or because the court did not explain what was meant by the term “proper condition.”
    [Ed. Note. — Por other cases, see Railroads, Cent. Dig. §§ 1193-1211, 1213-1215; Dee. Dig. § 351.]
    2. Appeal and Error (§ 499) — Bill op Exceptions — Suppicienct.
    A bill of exception, not showing what particular objection was made to the evidence, but merely stating that appellee’s objection thereto was sustained, was insufiicient.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 2295-2298; Dec. Dig. § 499.]
    3. Railroads (§ 348) — Accident at Crossing — Suppicienct op Evidence.
    In an action for injury from having his foot caught between defendant’s rails at a crossing, holding him until he was struck by a switch engine, evidence held to sustain a verdict for plaintiff, as against a contention that the space between the rails was so wide at some places and so narrow at others as to render it impossible for plaintiff’s shoe to have been caught therein as testified by him.
    [Ed. Note.' — Por other cases, see Railroads, Cent. Dig. §§ 1138-1150; Dec. Dig. § 348.]
    Appeal from District Court, McLennan County; E. C. Street, Special Judge.
    Action by J. P. Matthews against the St. Louis Southwestern Railway Company of Texas. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    E. B. Perkins, of Dallas, Scott & Ross, of Waco, for appellant. Witt & Saunders, of Waco, and Chas. B. Braun, for appellee.

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

   KAY, C. J.

This is a personal injury suit, which resulted in a verdict and judgment for the plaintiff for $3,000, and the defendant has appealed.

According to the plaintiff’s allegations in his petition, and his testimony in support thereof, on the occasion in question, while crossing a street in the city of Waco, he stopped with the heel of his right shoe on a guard and traffic rail, which rails were so located with reference to each other as resulted in the heel of his shoe becoming fastened, so as to prevent him from extricating himself, and while in that condition the defendant’s employés in charge of and operating a switch engine negligently caused the same to run upon and so injure him as to require the amputation of one of his feet. The petition charged that the defendant was guilty of negligence in not properly locating the two rails with reference to each other, in the operation of the switch engine, and in the failure to stop the same after its em-ployés were notified of the plaintiff’s perilous situation. In addition to a general denial, the defendant’s answer presented the question of contributory negligence, and all of the issues presented by the pleadings referred to were fairly submitted to the jury by the charge of the court. The verdict, though general in terms, involves findings to the effect that the defendant was guilty of negligence in .one or more of the particulars charged, and that the plaintiff was not guilty of contributory negligence; and that, as a direct result of the defendant’s negligence, the plaintiff was injured to the extent of the amount awarded him by the jury. The testimony sustains all of these findings, and they are here adopted by us as findings of fact.

The first assignment of error complains of the paragraph of the court’s charge, which instructed the jury that the plaintiff had a right to presume that the tracks of the defendant company, running along the sidewalk and in the street where he was walking, were in proper condition for pedestrians to walk on or over the same. Under that assignment two propositions are submitted, one charging that the instruction referred to relieved the plaintiff from the exercise of any care whatsoever as to where he was walking, and the second complains because the court did not explain what was meant by the term “proper condition.” We overrule the assignment, and hold that the charge complained of was justified by article 1068 of the Revised Statutes, which reads as follows: “Duty of Railroad to Keep in Condition for Travel Portion of Roadbed and Right of Way Crossed by Streets; Penalty. — It shall be the duty of every railroad company in this state to place and keep that portion of its roadbed and right of way over or across which any public street of any incorporated town or village may run, in proper condition for the use of the traveling public; and, in. case of its failure to do so for thirty days after. written notice given to the section boss of the section where such work or repairs are needed, by the town marshal of such town or village, it shall be liable to a penalty of twenty-five dollars ($25.00) for each and every week such railroad may fail or neglect to comply with the requirements of this article, recoverable in any court having jurisdiction of the amount. involved, in a suit in the name of such town or village.”

The second assignment complains because the court sustained an objection interposed by appellee to certain testimony offered by appellant. The bill of exception does not show what particular objection was made to the testimony, but merely states that the plaintiff objected to the testimony, and the court sustained the objection. This is not sufficient. Ramm v. Railway Co., 92 S. W. 426; Railway Co. v. Pearce, 43 Tex. Civ. App. 387, 95 S. W. 1133; Railway Co. v. Holzer, 127 S. W. 1062; Howard v. McBee, 138 S. W. 450.

The other assignments complain of the verdict as not being supported by the testimony, the contention being that it was made to appear to the jury that the space between the main track and the guard rail was so wide at some places and so narrow at others, as to render it impossible for the heel of the plaintiff’s shoe to have become fastened therein in the manner testified to by him. It appears that during the trial and by agreement of the parties, the officer in charge of the jury took them to the place in question, and carried the shoe that the plaintiff was wearing at the time of 'the accident; and one of the jurors, after the verdict had been rendered, made an affidavit, which was attached to the defendant’s motion for new trial, in which he stated, in substance, that he attempted to place the shoe heel in question between the rails referred to in such manner as to get it fastened therein, and that it could not be done, and he' was corroborated by the officer in charge of the jury. In rebuttal to that testimony the plaintiff presented an affidavit of a disinterested witness, who stated that after the trial was over, he took the shoe in question, carried it to the place in question, and found a certain place between the main and guard rail where the shoe heel fitted in, and became fastened in the manner described by the plaintiff in his testimony. He stated that he fastened the shoe heel bet tween the two rails in such manner that he could not remove it with his hands, and had to kick it with his foot in order to extricate it. His affidavit corroborated the testimony given by the plaintiff, and justified the court in overruling the motion for a new trial. Besides, the proof showed that the rails were too wide at one place and too narrow at another for the shoe heel to become fastened therein, which indicates that there was some point between the two places referred to where the shoe heel might become fastened.

No error has been shown, and the judgment is affirmed.

Affirmed.


text:
    MORAN v. MOSELEY et al.
    (Court of Civil Appeals of Texas. Austin.
    Feb. 18, 1914.
    Rehearing Denied March 18, 1914.)
    1. Adverse Possession (§ 22 — Acquisition ox Title — Sufficiency ox Possession.
    Ten years’ adverse, peaceable, and continuous possession of wooded land, which was not in cultivation, but which was fenced and used, in connection with a larger tract, for pasturage and for obtaining firewood, was sufficient to support title.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. § 111; Dec. Dig. § 22.]
    2. Adverse Possession (§ 43) — Continuity ox Possession — Tacking Possession — “Privity ox Estate.”
    Under Rev. St. 1911, art. 5682, providing that, when adverse possession is held by different persons successively, there must be a privity of estate between them, the expression “privity of estate” does not mean privity of title, but only privity of possession, and the plea of the ten-year statute is not sustained when the adverse occupancy of different persons is relied on, unless defendant can show privity between himself and others on whose possession he relies; so that, in trespass to try title, it was immaterial that some of the conveyances through which some of the parties claimed failed to accurately describe the land in controversy, where it appeared that the several grantees therein had claimed adversely, and exercised acts of ownership over the same land, and that the assumption of such rights was referable to their conveyances.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 213-224; Dec. Dig. § 43.]
    3. Adverse Possession (§ 19) — Requisites— Inclosure.
    It is not necessary to title by adverse possession that the land be separately inclosed, but it is sufficient if it is within a general inclosure, even though other tracts are included therein.
    [Ed. Note.—For other cases, see Adverse Possession, Cent. Dig. §§ 99-105; Dec. Dig. § 19.]
    Appeal from District Court, McLennan County; Tom L. McCullough, Judge.
    Trespass to try title by Carrie G. Moran against J. B. Moseley and others, in , which defendant impleaded his warrantor, C. Si-mons. Judgment for defendants, and plaintiff appeals.
    Affirmed.
    Davis & Cocke, of Waco, for appellant. W. H. Jenkins and R. A. Word, both of Waco, for appellees.

      For other oases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-Ño. Series & Rep’r Indexes

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

   RICE, J.

As stated in appellant’s brief, this is a suit in trespass to try title, brought by her against J. B. Moseley to try title to five acres of land; out of the M. Martinez two-league grant in McLennan county. Ap-pellee Moseley, having vouched in his war-rantor, C. Simons, pleaded not guilty, and specially pleaded the several statutes of limitation, and, further pleading his purchase of the land in controversy as part of a larger tract from his warrantor, C. Simons, prayed that if judgment be rendered against him for said land, or any part thereof, that he have judgment over against his warrantor for a sum equal to the amount which he paid for said land, which he alleged to be $55.55 per acre, together with interest. Si-mons, the warrantor of appellee, made himself a party defendant, and pleaded for himself and vendee not guilty, as well as the several statutes of limitation. Trial was had before the court without a jury, resulting in a judgment for appellees, they having admitted in open court that plaintiff had a good cause of action, except in so far as same might be defeated by their defense of the statute of ten years’ limitation and title thereunder; and this action of the court is assigned as error.

We have carefully considered the evi dence, and have reached the conclusion that it sustains the judgment. It shows that the land was fenced more than ten years prior to the filing of suit, and that the defendant, and those under whom he claims, have continuously had and held peaceable and adverse possession thereof, using and enjoying the same during said period. It is true' that no part of this tract was in cultivation, but the proof shows that it was used by the respective parties through whom appellees claim, in connection with a larger tract, for pasturage of their stock and for obtaining firewood. It being a wooded tract, this was the use to which it was best adapted. Such use has frequently been held sufficient to support title by limitation. See Hooper v. Acuff, 159 S. W. 934; Hardy Oil Co. v. Burnham, 124 S. W. 221; Randolph v. Lewis, 163 S. W. 647, opinion rendered by this court November 12, 1913, not yet officially reported.

It is true, as claimed by appellant, that, where it is sought, as here, to tack the several occupancies of different persons for the purpose of completing the statutory bar, there must be a privity of estate between them. See R. S. 1911, art. 5682, and Sayles’ Rev. Stat. art 3350. But this expression does not mean privity of title as between such claimants, but only privity of possession ; for until the period necessary to complete the bar has expired, no title is -acquired . by limitation. See Truehart v. McMichael, 46 Tex. 222; Henderson v. Beaton, 1 Posey Unrep. Cas. 17. So in the present case we think it immaterial that some of the conveyances through which some of the parties claim fail to accurately describe the land in controversy, provided it appears, as here, that the several grantees therein, by reason thereof, claimed and exercised acts of ownership over the land, and that the assumption of this right is referable to such transfers. Indeed, if there had been no conveyances whatever and the respective parties through whom appellees claim had verbally sold their claim and their respective vendees had gone into possession by reason thereof, holding the same for the necessary period, it would be sufficient. If this be true, how can such deeds be regarded as breaking the continuity of possession held by the respective parties thereto? In the absence of possession, if they were relied on merely as links in the chain of title, and not as a basis to support a claim of limitation, they would not be sufficient, unless they embraced the land. But it does not follow, we think, that such would be true when relied on merely as evidencing a transfer of possession or right of possession. The plea of the ten-year statute is not sustained when the adverse occupancy of the different persons is relied on, unless the defendant can show privity between himself and others on whose possession he relies. Dotson v. Moss, 58 Tex. 152; Forsod v. Golson, 77 Tex. 666, 14 S. W. 232. But in the instant case such privity of possession is shown.

It is not necessary, as contended by appellant, that the land be separately inclosed, but it is sufficient if it is with a general inclosure, even though other tracts are included therein. See Smith v. Kenney, 54 S. W. 801; Cunningham v. Mathews, 57 S. W. 1115.

Believing that the evidence supports the judgment of the trial court, and finding no error in the record, such judgment is affirmed.

Affirmed.


author: HENDRICKS, J.

text:
    RANKIN et al. v. RHEA et al.
    (Court of Civil Appeals of Texas. Amarillo.
    Feb. 21, 1914.
    Rehearing Denied March 21, 1914.)
    1. CONTRACTS (§ 147) — CONSTRUCTION — INTENT.
    The governing principle in the construction of contracts is the intention of the parties.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 730, 743; Dec. Dig. § 147.]
    2. Contracts (§ 164) — Construction—Contemporaneous Writings.
    Contemporaneous instruments relating to the same subject-matter may be read together as forming parts of one transaction.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 746-748; Dec. Dig. § 164.]
    3. Contracts (§ 147) — Construction as a Whole.
    It is a canon of construction of contracts that the particular words may not be isolatedly considered, but the whole contract must be interpreted with reference to the nature of the obligation between the parties.
    [Ed. Note. — For other eases, see Contracts, Cent. Dig. §§ 730, 743; Dec. Dig. § 147.]
    4. Contracts (§ 152) — Enforceable as Written.
    It is the duty of courts to enforce contracts as the parties have made them, notwithstanding a hardship may be worked.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 732, 733, 738; Dec. Dig. § 152.]
    5. Contracts (§ 154) — Construction.
    Where an instrument is susceptible of two constructions, the one working no injustice should be adopted.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. § 735; Dec. Dig. § 154.]
    6. Contracts (§ 175) — Construction — Evidence to Aid.
    A chancery court will always refer a transaction to that construction, predicable upon the evidence, where there is serious doubt as to what the parties intended, which will lead to the more just results.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 766, 978, 1010, 1067-1069, 1786, 1803, 1810; Dec. Dig. § 175.]
    7. Sales (§ 85) — Construction—Independent Stipulation.
    The owner of a well drilling equipment contracted with a town-site company to drill wells for it to an amount of $600, $200 of which was to pay for the purchase of a unit in the town-site distribution. The owner sold the equipment and the contract, in consideration of a note with a specified maturity date for $600, secured by a chattel mortgage. A separate agreement was executed, reciting that payments received by the buyer under the contract were to be applied on the note and the seller would furnish the drilling in order to be entitled to the payments of the note. The town-site company furnished no drilling. Held, that the agreement to furnish the drilling could not be treated as a condition of liability on the note, in view of the fact that a chattel mortgage was given, the note bore a specified maturity date, and under the contract for drilling only $400 could be applied in payment of the note as the balance was to go in payment of a unit.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 236-238; Dec. Dig. § 85.]
    Appeal from Scurry County Court; Arthur Yonge, Judge.
    Action by W. T. Bankin and another against O. M. Bhea and another. From a judgment for defendants, plaintiffs appeal.
    Reversed and remanded.
    Perkins & Perkins, of Snyder, for appellants. Higgins & Hamilton, of Snyder, for appellees.

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

   HENDRICKS, J.

The appellants, W. T. Rankin and J. C. McDermott, sued O. M. Bhea and J. T. Caddell, the appellees, on a promissory note, executed by the latter to the former, for the sum of $500, dated October 3, 1911, and due “on or before” August 1, 1912, bearing interest from date at the rate of 10 per cent., and providing for the usual attorney’s fees, which note was secured by a chattel mortgage on a well drill and equipment, the note bearing credits made at different dates, amounting to the sum of $179. The defendant Caddell answered that thereafter he sold his interest in said well drill and equipment to the ap-pellee Bhea, and the latter had assumed payment of the same, and that the appellants agreed to release him from liability on the note.

In this discussion the name of Rankin will be used for both appellants, and that of Bhea for both appellees, as to the issues applicable to each instead of the plural.

The facts develop that Bhea had sold to Bankin the well drill equipment some time previous to the resale from Rankin back to Bhea, Bankin executing his note for the sum of $600 which had been reduced by the payments to $539 previous to said resale. The evidence also suggests that, immediately prior to the resale by Rankin to Bhea of the particular machinery, the note executed by the former in favor of the latter, and which had been reduced by payments to the sum of $539, was past due, and that Rhea was in urgent need of the same; it also suggests that during this time there were some preliminary negotiations for the resale at an estimated price of $500, and upon the basis that the note owing by Bankin to Bhea was of that amount. Prior to the resale of this property Bankin had entered into an agreement with the Dermott Town-Site Company, by the terms of which the Town-Site Company agreed to employ him to dig wells on its property, upon a graduated scale of prices per foot in accordance with the depth, to the amount of $600, Bankin agreeing that $200 of said amount should be “applied to the purchase of a unit in the Der-mott town-site distribution,” and as the work progressed one-third of the installments due under the contract should be paid for said unit. When Rankin resold to Rhea and received the note and mortgage in consideration, or as part of the consideration, he transferred to the said Bhea his well drilling contract with the Dermott Town-Site Company, and as part of this transaction the following agreement was executed between tbe parties and relied upon by the appellees (the defendants in the court below) as a defense to their alleged liability on the note, and for the purpose of invoking a cancellation of same, asserting a noncompliance of said contract by appellants:

“This memorandum witnesseth that W. T. Rankin and J. 0. McDermott have this day transferred to O. M. Rhea and J. T. Oaddell that certain contract with the Town-Site Company, wherein the said Rankin and Mc-Dermott have an agreement with the said Town-Site Company to do $600 worth of drilling. It being understood that the said Rhea and Caddell are to do and perform the said work of. drilling in a workmanlike manner and upon the terms that have been agreed upon by said Rankin and McDermott and the said Town-Site Company as is shown and set forth in the written contract between the said parties for said drilling. The consideration for the transfer of said drilling contract to said Rhea and Caddell is that the said Rhea and Caddell shall do the work as promptly as is convenient and shall apply all the 'Proceeds from said drilling contract to the payment of the note of $500.00 this day executed in favor of W. T. Rankin and J. C. McDermott in payment for one well drilling machine this day conveyed to the said O. M. Rhea. It is understood that the said Rankin and McDermott have now performed $49.00 worth of said above-mentioned work.
“It is also understood that the said Rankin and McDermott shall furnish said amount of drilling as herein mentioned in order to be entitled to the payments as herein set forth.”

The last clause of this contract is the “bone of contention” in this case; appellees asserting, “that the appellants had to furnish the amount of drilling provided for in the contract in order to be entitled to the payment of the note”; the appellants contending that “the only effect of the portion of the contract above quoted [the last paragraph] is to give the appellants a right to demand the application of the proceeds from the digging of the wells by appellees for the Dermott Town-Site Company, in the event that the plaintiffs furnish the drilling, * * * and to give the contract any other construction would vitiate the maturity of the note and render the contract contradictory to the note and the note contradictory to the contract.” We also infer that appellants contend that their right to the application of payments is in the nature of additional security, and that the provision referred to in construing the contract, in the event they failed to furnish the drilling under their contract with the Town-Site Company, which had been assigned to the appellees, they could not demand the application of the proceeds, but must rely on the other security, and must wait until the first of August, 1912, for the payment of the note, which construction they contend is emphasized by the recitation “on or before August 1, 1912.”

The appellees in asserting “that the owners of the. note shall not be permitted to collect it unless they furnish the work with which to pay for it” particularly cite the case of Kelly v. Webb, 27 Tex. 369, which involved a written obligation of one party to pay another “five hundred bushels of corn in the heap,” for which the other party, in a separate obligation, agreed to pay the prom-isor of the corn the sum of $250, the court necessarily holding that neither party “was entitled to enforce from the other a fulfillment of the contract without at the same time performing its stipulations on his part” ; the appellees evidently contending that the promise to pay the note in this case, in connection with the last paragraph in the contract quoted, were concurrent and dependent clauses and conditions, and as the evidence in this cause conclusively showed that Rankin or the Dermott Town-Site Company failed to furnish the amount of drilling mentioned in the drilling contract, and that as the note was payable primarily out of payments for the drilling to be so furnished, the liability did not exist, and as the jury found in this case that the well drilling contract is valueless the note and mortgage should' be canceled; evidently the trial court proceeded upon this theory in the cancellation of the note and mortgage, which we think is manifestly erroneous. Of course Rankin did not agree to furnish the amount of well drilling indicated in the well drilling contract in the sense that he had any dominion or control over the property of the Der-mott Town-Site Company, and, if the contract meant anything for the benefit of Rhea, it could only mean, from the situation of the parties indicated by the record, that Rankin would guarantee to Rhea that the Dermott Town-Site Company would furnish said amount of drilling, as mentioned in said well drilling contract, in order to entitle him to the payments accruing as the work progressed for the purpose of applying the same upon the note. In other words, the manner in which we consider the cause, the only contention which Rhea could insist upon is that Rankin stipulated that the Dermott Town-Site Company should perform its contract to the extent of furnishing the $600 of well drilling, as called for therein, and at best he could only abate the note to the amount of $400, excluding the unit. The first assignment of error is not a sufficient repetition and reproduction of the assignment in the motion for new trial, and is not considered, but the second assignment, practically raising the same question, is not objected to and is regarded.

The governing principle in the construction of all contracts is, of course, the intention of the parties.

It is a well-known principle that contemporaneous instruments relating to the same subject-matter may be read together as forming parts of one transaction; and an “elementary canon of interpretation is, not that the particular words may be isolatedly considered, but that the whole contract must be brought into view and interpreted with reference to the nature of the obligations between the parties and the intentions which they have manifested in forming - them.” Enc. of U. S. Sup. Rep. vol. 4, pp. 573-574. The numerous cases of the Supreme Court of the United States noted by the author in the enunciation of the quoted rule were not searched "by us, as the rule is fundamental, but it is so aptly framed as deserving quotation. '

It is of course true that when parties have made their contract it is the duty of the courts to enforce it as they have elected to make it, without regard to the fact that, in the light of subsequent events, a hardship may be worked; but it is also true “that, when an instrument is susceptible of two constructions, the one working injustice and the other consistent with the right of the ease, one should be favored which standeth with the right.” Noonan v. Bradley, 76 U. S. (9 Wall.) 394, 19 L. Ed. 761; Paine v. Copper Bell Mining Co., 13 Ariz. 406, 114 Pac. 967; Faulk v. Dashiell, 62 Tex. 646, 50 Am. Rep. 542. We cite these decisions as authority for the rule, and not that the causes are analogous; other principles of construction along with the one quoted were applied by the courts in those cases. Mr. Page, in his work on Contracts, vol. 2, § 1121, in declaring the rule, uses this language: “As between two constructions, each probable, one of which makes the contract fair and reasonable, and the other making it unfair and unreasonable, the former should always be preferred.”

We have the analogy in equity, for which it is unnecessary to cite authorities, that a chancery court will always refer a transaction to that construction, predicable upon the evidence, where there is serious doubt as to what the parties intended, which will tend to the more just results, instead of to unconscionable ends — the former will always be adopted.

Bearing these rules of construction in mind, was it the intention of these parties that Rankin was to guarantee that the Dermott Town-Site Company would fulfill its contract in providing $600 worth of drilling, and that Rankin should suffer for the breach? Here we have a note executed October 3, 1911, payable on or before August 1, 1912, given for the purchase price, or at least representing the greater part of the consideration, for the well drill and gasoline engine, etc., and a chattel mortgage, executed at the same time on different property, to secure the payment of the note. It is of course evident that Rankin desired to sell his well drill, and also to get rid of his contract with the Town-Site Company, but it is also concluded that Rhea, quoting a special finding of the jury, “bought the well drill in order to procure the contract.” The mortgage provides that in the event of seizure of the mortgaged property by judicial process, or of the sale of the same by the mortgagors, or its removal from the county, the mortgagee may declare the note matured. If the maturity of the note is subject to Rankin, or the Town-Site Company, furnishing the $600 of drilling, this provision of the mortgage is nullified, and the interpretation given to the contract by Rhea is inconsistent with the same. The answer cannot be made that, of course, if the contract is breached in the manner mentioned, Rhea could not complain and take advantage of his own breach, for the reply would be that the maturity of the note, according to contract, has not occurred, for its due date is suspended, and the note is not to mature and become a valid obligation until the work is furnished, and that is the real due date, as much so as if. it were expressly stipulated in the contract. The contract does say that Rankin shall furnish the work in order to be entitled to the payments, but we are unable to read into it as a forfeiture that if the Dermott Town-Site Company failed to furnish the work in accordance with its contract, the note is an invalid obligation.

It could not be said that if the Dermott Town-Site Company had furnished the drilling, but refused to pay for the same, it would be implied from the contract that Rankin, in that event, would have to make good; as a guaranty contract it could not be extended that far — the rule of strictissimi juris would apply. We believe this contract is susceptible to the construction* in order that Rankin be entitled to the payments as set forth in the drilling contract, that the drilling must be furnished within the due date of the note, and that is as far as the agreement to furnish the same would extend; if not furnished within that time, Rankin could not demand the drilling payments as security for the purpose of paying the note. The stipulations in the note and mortgage, with the purpose of giving the lien upon the well drill and accessories, are more compatible with that construction than to destroy the note and mortgage with the other construction contended for by appellees. In the event the Dermott Town-Site Company failed to’ furnish any drilling, by virtue of the appel-lees’ interpretation, the well drill and the gasoline engine would be practically a gift to Rhea, which, construing all of the provisions of the contract, we believe the courts should not tolerate, and that construction should be adopted more in consonance with equity. If Rhea abandoned his position that the promise to pay the note and the provision in question are not dependent, and that the courts-at least should construe it as a guaranty that the Town-Site Company would furnish the drilling, and if it failed in that respect the guarantor is liable for the breach, and deducting the $200 for the unit, it having •been shown it would have cost $135 to do the work, that by a rule of proportion the damages could be ascertained, and to that extent he should recover as an offset. We think that position would he equally inconsistent. If the consideration to Rankin was, in order to get the payments, he guaranteed that the Town-Site Company would furnish $600 worth of drilling, the guaranty would have to operate upon and embrace the whole contract; it would not apply to a part, for the breach would be the failure to furnish the $600 worth of well drilling, and the fruits of the contract would be the measure of damages, which would comprehend the $200 unit, as well as the other elements. Surely it is not contended that in that event that the contract would mean that Rankin would have to pay for the unit?

We are not minimizing the difficulty of the interpretation of this contract, but, upon the best consideration we are able to give it, we are inclined to think that the provision in question should not be isolated and construed contrary to what otherwise appears to be the evident purpose of the transaction, and cause it to operate as a forfeiture for the destruction of the debt and the mortgage, Some of the findings of the jury were unnecessary and superfluous, but upon the findings which are in consonance with the interpretation given to the contract by this court, we believe the cause should be reversed and rendered.

The jury specifically found that the ap-pellee Oaddell was not exonerated from the note upon his plea of release, and it is the order of this court that the judgment of the trial court be vacated, and that the appellants, W. T. Rankin and J. O. McDermott, recover judgment against the appellees, O. M. Rhea and J. T. Caddell, for the sum of $427.27, together with interest thereon from the 24th day of July, A. D. 1913, at the rate of 10 per cent, per annum, and that the appellants’ mortgage lien upon one Leader No. 2, well drilling machine, and upon one 6-horse power gasoline engine, together with the fixtures and attachments thereto belonging, as described in appellants’ petition, be foreclosed, as said lien existed on the 3d day of October, A. D. 1911, and the same should be sold in terms of law for the purpose of paying said debt and judgment, and that appellants recover all costs in this court and in the court below.


text:
    CITY OF AUSTIN v. VALDEZ.
    (Court of Civil Appeals of Texas. Austin.
    Feb. 18, 1914.
    Rehearing Denied March 24, 1914.)
    Municipal Corporations (§ 821) — Questions foe Jury.
    In an action against a municipality for injuries received upon a defective sidewalk, the questions of assumption of risk and contributory negligence held properly submitted to the jury on the evidence.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 1745-1757; Dec. Dig. § 821.]
    Appeal from District Court, Travis County; Chas A. Wilcox, Judge.
    Action by Adelaide Valdez against the City of Austin. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    J. Bouldin Rector and A. L. Green, both of Austin, for appellant. Dickens & Dickens, of Austin, for appellee.

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

   Statement.

JENKINS, J.

There was a ditch in Comal street, about nine feet deep, at the time ap-pellee was injured. The banks were steep; but the earth was firm. This ditch had existed for more than 20 years, gradually washing from a depth of three or four feet to a depth of about nine feet. It has encroached upon the sidewalk until the passway left was from only one or two to three or four feet wide at the time of the accident. This passway had been used by the public, more or less, up to the time of plaintiff’s injury. The appellee owned the lot at the corner of Willow and Comal streets, fronting on Willow, and running back on Comal, on which was situated a tenement house. She lived, and had lived for 25 years, on the second lot east of the corner of Comal and Willow streets. On the day that she was injured she had gone through a gate at the rear of her residence, and passed up an alley and onto Comal street, for the purpose of inspecting her property. This was her nearest and most direct route. Her daughter was with her, and in front of her. While walking along the passway by her fence, the earth gave way, and she fell into the ditch and was injured as alleged in her petition. She alleged that the negligence of appellant in permitting the ditch to become and remain in a dangerous condition was the proximate cause of her injury. The defense was assumed risk and contributory negligence. From a judgment in favor of appellee, an appeal has been perfected, and the case is before us on appellant’s assignments of errors as stated in the opinion herein.

Opinion.

Appellant assigns but two errors. One is as to the refusal of the court to instruct a verdict for the appellant, and the other is as to the refusal of the court to set aside the verdict, for the reason that the same was not supported by the evidence, in that it appears therefrom that appellee assumed the risk, and that she was guilty of contributory negligence.

It would serve no useful purpose to discuss the evidence in detail, or to state the same further than has been done in our findings of fact herein. Suffice it to say that the evidence does not show, as a matter of law, that appellee assumed the risk, or was guilty of contributory negligence; hence the court did not err in submitting these issues to the jury, nor in refusing to set aside the verdict.

For the reasons stated, the judgment of the trial court is affirmed.

Affirmed.