author: MOURSUND, J.

text:
    FISHERIES CO. et al. v. McCOY.
    (No. 5954.)
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 27, 1918.
    On Motion for Rehearing, April 10, 1918.)
    1. Appeal and Error <&wkey;1062(2) — Refusal of Special Issue — Harmless Error.
    An assignment that the court erred in refusing to add to the question whether plaintiff suffered any injuries the inquiry, “If so, which of said injuries did plaintiff suffer?” presents no error requiring reversal, the injuries being such that a jury would have been bound to make a general finding which would have precluded the court on appeal from holding the verdict excessive, and no issue having been framed particularly presenting question which defendants sought to have determined.
    2. Appeal and Error <&wkey;1004(l) — Excessive Verdict — Reversal.
    The rendition of a verdict so large that it shows on its face that it is the result of prejudice or passion constitutes error requiring a reversal, unless a suitable remittitur is entered.
    3. Trial t&wkey;350(6) — Submission ob- Special Issues.
    Since defendant does not have the privilege of requiring the jury to append to its verdict a list of injuries found to have been sustained, where a case for personal injuries is submitted on a charge calling for general verdict it cannot be said that such privilege is essential to the administration of justice.
    4. Trial <&wkey;350(6) — Special Issues.
    In a personal injury suit, the court, as a general rule, is not required to submit a separate issue as to each injury.
    5. Trial <&wkey;260(8) — General Instructions.
    Where charge given by court in suit by em-ployé for injuries was correct, it was unnecessary to single out an issue relating to injuries and consequences resulting therefrom, as that could be done by counsel in argument.
    6. Damages <&wkey;216 (1) — Instructions.
    Where charge as to measure of damages in personal injury suit by employé was correct, a special charge, with reference thereto, which would merely have had effect of explaining that “reasonable probability” did not mean “mere possibility,” was properly refused.
    7. Appeal and Error &wkey;>215(l) — Timely Exceptions and Objections.
    Objections to charge not urged in trial court will not be heard on appeal.
    8. Appeal and Error <&wkey;231(9) — General Objections — Availability on Appeal.
    An objection that charge is otherwise involved and uncertain, and gives the jury no clear direction by which to fix damages, is too general to be of any assistance to the trial court, and cannot be aided by making specific objections in the appellate court.
    9. Trial <&wkey;251(8) — Instructions not Applicable — Refusal.
    Refusal of an instruction not to include, in any amount found in answer to an issue, doctors’ bills, etc., was proper, where such issue did not include such bills, the same being specifically inquired into in other issues.
    10. Appeal and Error <&wkey;931(4) — Judgment —Presumption.
    Although services of doctors were rendered at special instance and upon credit of employer, where no issue was requested as to whether plaintiff employé became liable therefor it will be presumed that court found to that effect, so that reasonable charges for such services were properly included in judgment, there being evidence that services were rendered with plaintiff’s consent under circumstances raising an implied promise to pay.
    11. Trial &wkey;>252(7) — Submission of All Issues Supported by Evidence.
    Where negligence was shown beyond dispute, and defendants did not concede the same, thereby eliminating such issue, they cannot complain that instructions submitted too many issues, where the court submitted every issue as to negligence and there was evidence justifying their submission.
    12. Master and Servant <®=»100(1) — Exempting from Liability — Validity.
    As the members and trustees of an unincorporated business, trust, or partnership cannot change their legal status so as to make themselves masters of employés in a representative capacity only, they cannot make a valid contract exempting themselves from individual liability for injuries to employés of the association.
    13. Associations &wkey;19 — Unincorporated-Individual Liability of Members.
    Trustees and members of an unincorporated association may limit their liability as to some torts, and even relieve the trust estate as to some, since it is not contrary to public policy to stipulate against liability for negligence except where relation of master and servant or passenger and carrier exists.
    14. Associations <&wkey;16 — 'Unincorporated-Individual Liability of Members.
    In personal injury suit by employé against unincorporated association and two shareholders, who were trustees and managing officers, the court did not err in refusing to hold such members liable for such part only as would be arrived at by charging each with one-twelfth, there being 12 trustees, or by dividing the liability between all shareholders, such defendants being severally liable for the full amount.
    On Motion for Rehearing.
    15. Master and Servant <&wkey;U00(l) — Contract Exempting from Liability-Waridity.
    The managing shareholders of an unincorporated association are the masters of the servants engaged therein, and may not absolve themselves of personal liability for breach of masters’ duty toward such servants.
    16. Trusts <&wkey;235 — Contract Exempting from Liability — Validity.
    The trustees of a trust estate operating as a business company are individually the masters of the servants engaged therein, and may not absolve themselves of personal liability for breach of masters’ duty toward such servants.
    Appeal from District Court, Aransas County; Morris Briggs, Special Judge.
    Action by Gould C. McCoy against the Fisheries Company and others. Judgment for plaintiff, defendants appeal.
    Affirmed.
    Terry, Cavin & Mills, of Galveston, E. P. Scott, of Corpus Christi, E. Gordon Gibson, of Rockport, and Williams & Neetlie, of Galveston, for appellants. Kleberg & Stayton, of Corpus Christi, Dougherty & Dougherty, of Boe-ville, D. M. I’icton, Jr., of Corpus Christi, and W. H. Baldwin, of Rockport, for appellee.
   MOURSUND, J.

Gould O. McCoy sued The Fisheries Company, J. W. Munn, and W. L. Moody, Jr., for damages for personal injuries suffered by appellee while in the service of The Fisheries Company. Munn and Moody, respectively president and secretary-treasurer of the company, and each a trustee therein, were sued on the theory that they were personally liable because of the character of the company and their relations to it. The Fisheries Company pleaded a general demurrer and contributory negligence. Munn and Moody pleaded general denial, denied under oath the existence of any partnership, and by special plea set up the articles of association of The Fisheries Company providing that there should be no personal liability of the shareholders and trustees for any debts or damage incurred by the company, in connection with a written instrument executed by plaintiff in consideration of his employment by the company, in which he acknowledged notice of such provision for nonliability, and agreed to look to The Fisheries Company and its assets alone for satisfaction of any debts or damages incurred by it to him. Special exceptions to this plea were sustained, excluding it entirely, and upon answers of the jury to special issues judgment was rendered in favor of plaintiff against all of the defendants for $20,746. All of the defendants appealed.

The first contention is that the court erred in refusing to add to the question whether plaintiff suffered any injuries the inquiry, “If so, which of said injuries did plaintiff suffer?” The proposition is to the effect that in the state of the evidence as to injuries suffered by plaintiff, and in view of the manner in- which the cause was submitted in the charge, the defendants had the right to an affirmative statement by the jury of.the injuries found, as requested by defendants and the refusal of such request was the denial of such right prejudicial to them. This proposition is very general. It leaves it to us to read the testimony and examine the charge, and to then deduce, if we can, a theory showing that defendants were prejudiced by the refusal of their request. We gather, however, from the argument that the theory relied upon by appellants is that it was important’ to their rights to have the jury state whether it found that plaintiff suffered a dislocation and curvature of the spine, in order that their findings as to the amount of damages could be reviewed. No authorities are cited in support of the assignment.

The rendition of a verdict so large that if shows on its face to be the result of prejudice or passion constitutes error requiring a reversal of the judgment unless a suitable remittitur is entered. Does that fact entitle the defendant in a personal injury case to require that the jury name the different injuries they find plaintiff to have sustained? If so, as the consequences found to follow from injuries are frequently more important than the injuries, and the testimony more conflicting with regard thereto, would defendants also be entitled to have the jury state what consequences they find would follow from each injury, and would it also be proper to have them state the amount of damages they allow for each injury? There may arise exceptional cases in which there is a sharp conflict as to whether or not an injury -was sustained, which injury would be so important as an element of damages that if found to exist a large verdict would be permitted to stand, and if not found to exist only a small verdict would be justified. In such cases a rery plausible argument could be made in favor of the propriety of submitting an issue inquiring whether such injury was found to have been suffered. Under our statute it is proper to submit such issues as, if answered favorably to plaintiff, will make-out a case entitling him to a judgment. It is an issue whether plaintiff suffered injuries and what amount will compensate him for the injuries suffered. It may also be said that there is an issue as to each injury alleged and that is true, but to have the jury pass on each injury can serve no purpose except to furnish a basis for impeaching the verdict as to compensation allowed. If the jury found against plaintiff on certain injuries, they would be eliminated as a basis for the compensation allowed. Their finding as to each injury would be attacked as unsupported by evidence and if any one of such attacks was sustained, the finding as to compensation would fall, and in self-defense, under such a system, the plaintiff would probably be compelled to ask that each injury be valued separately.

When a case is submitted on a charge calling for a general verdict, the defendant does not have the privilege of requiring the jury to append to its verdict a list of injuries they find to have been sustained, so it cannot be said that such privilege is really essential to the administration of justice.

We believe it can be safely said that as a general rule the court is not required to submit a separate issue as to each injury, and we incline to the view that he would in no case be required to do so. But, even if it be held that under exceptional facts an issue should he submitted as to a particular injury, it would not be proper to attempt to get at the matter by asking the jury to describe all injuries found by them to have been suffered. In such cases an appropriate issue should be framed with regard to the particular injury in question. We have heretofore held that it was not error to refuse a request to have the jury name all injuries found to' have been sustained. Andrews v. Wilding, 193 S. W. 192. As before stated there may be exceptional cases requiring a modification of the doctrine applied in that case; but in general we think such inquiries of very little value, and calculated to make the trial of cases on special issues so complicated and difficult as to destroy the value of the statute. In this case, while defendants, as before stated, were anxious to ascertain whether the jury found plaintiff to have suffered a dislocation or curvature of the spine, they did not frame an issue pertinently presenting the question, but wanted to elicit from the jury a description of all injuries found to have been sustained by plaintiff. We have examined the facts, and conclude that, even if it were proper to submit such an issue, defendants were not harmed by the ruling of the court. Plaintiff, according to the undisputed testimony, suffered such permanent injuries to his arm and jaw, attended with great pain and suffering, as would have entitled him to a very large verdict. He also sustained injuries to his back from which he suffered considerable pain, and the jury would have been bound to have made a general finding at least with regard to such injuries, and had they made such a general finding we would not have known what consequence they found would follow such injuries, and would not have been able to hold the verdict excessive. The jury could not have done less, and we cannot assume that they would have taken the pains to state that they found no curvature of the spine and no dislocation of the vertebrse, even had they reached such a conclusion. Whether the jury described the injury in general terms or in technical language, in either event it would have been impossible to tell what consequences they thought' would follow from the injury. The assignment, to say the least, presents no error requiring a reversal of the judgment, and it is overruled.

By the second assignment complaint is made of the failure of the court to give the following special charge:

“That the burden of proof on the plaintiff, as stated in the other charge given you, means the greater weight and degree of evidence, and will govern you in determining whether or not the plaintiff sustained any particular injury, and whether or not any particular consequence resulted to him from any particular injury.”

The charge given by the court was correct, and it was not necessary to single out the issue relating to injuries and the consequenc-ces resulting therefrom. This could be done by counsel in argument. The assignment is overruled.

Complaint is also made of the refusal to give a special charge with regard to the measure of damages. The charge of the court on this subject was correct, and it was not necessary to explain the term “reasonable probability” by stating that thereby was not meant a “mere possibility.” The special charge would merely have had that effect. The assignment is overruled.

The fourth assignment complains of the overruling of an objection to special issue No. 30, inquiring what sum of money will compensate plaintiff. The objection was that the special issue refers the jury to the plaintiff’s petition, and is calculated to cause the jury to treat the allegations therein as evidence, and that said issue is otherwise involved and uncertain, and gives the jury no' clear direction by which to fix damages.

The first proposition is that the charge is erroneous in referring the jury to the petition to ascertain the injuries alleged, because in so doing it imposes on the jury the duty and gives them the right to construe the pleading, and to determine what are injuries, and what injuries are alleged, and was calculated to cause the jury to treat the mere allegations as evidence.

The entire proposition, with the exception of the last clause, constitutes objections to the charge not urged in the trial court, and need not be further considered. The objection, that such a reference is calculated to cause the jury to treat the allegations as evidence, is without merit.

An objection that the charge is otherwise involved and uncertain, and gives the jury no clear direction by which they are to fix damages, is too general to be of any assistance to the trial court, and cannot be aided by making specific objections in the appellate court pointing out wherein it is considered misleading, as is sought to be done in the second and third propositions. The assignment is overruled.

The fifth assignment complains of the refusal of an instruction not to include in any amount the jury might find in answer to issue No. 42 any doctor’s bills, hospital fees, or other medical expenses, for the reason that plaintiff is shown not to have paid such bills nor to have become liable therefor. We fail to find any issue numbered 42, but presume reference to issue No. 30 was intended. That issue clearly stated what matters could be allowed for, and did not include doctor’s-bills or hospital fees, and, as such matters were specially inquired into in issues 31, 32, 33, and 34, the jury was in no danger of including the same in their estimate in answer to issue No. 30. The assignment is overruled.

In answer to issues the jury found that $300 was a reasonable charge for the service of Dr. Caldwell; that $200 was a reasonable charge for the services of Dr. McCullough ; that $50 was a reasonable charge for the services of Dr. Spohn; and $196 was a reasonable charge for expenses at the Spohn Sanitarium, and by the sixth assignment error is assigned to such ruling. The court included these items in his judgment, the contention being that there is no evidence that plaintiff paid or became liable for such sums, and the evidence shows that the services were rendered at the special instance and upon the credit of The Fisheries Company, and it was legally liable therefor to the persons rendering the same. As no issue was requested as to whether or not plaintiff became liable for the services, we must presume a finding by the court to that effect if there be any evidence on which it can be based. We find the evidence shows that plaintiff is liable on an implied contract to pay such amounts. He was conscious when he was taken to the hospital, and the services were rendered with his consent and acquiescence, under circumstances raising an implied promise to pay the reasonable value thereof. The assignment is1 overruled.

Assignments 7 to 9, inclusive, complain that the amount of damages found in answer to special issue No-. 30 is excessive. There is no merit in the contention.

The tenth assignment reads as follows:

“The court erred in overruling the objection of all the defendants to, the charge of the court upon the grounds that it was too lengthy, too involved, submitted too many issues, tended to confuse the case in the minds of the jury, and constantly and repeatedly presented to the minds of the jury, in argumentative form, plaintiff’s theories and contentions, by putting to the jury pointedly and separately each one of plaintiff’s contentions, and requiring a separate finding upon each one and upon each phase of each one, all as shown by defendant’s bill of exceptions No. 1 to the charge.”

The assignment is submitted as a proposition. In the argument it is stated that negligence was shown beyond dispute, and that the evidence raised no question of contributory negligence. This being the case, appellants could have conceded negligence, and thus limited the issues to those relating to injuries and amount of compensation. Instead, they conceded nothing, and the court submitted every issue relating to negligence. It is not contended that there was no evidence justifying the submission of the issues, and we cannot agree that the same were couched in argumentative form, or that defendants probably suffered injury because of the method adopted in submitting the case. The assignment is1 overruled.

A separate brief is presented in behalf of Munn and Moody, in which error is assigned to ruling of the court with regard to matters' relating to the personal liability of said two defendants. In order to show liability of Munn and Moody, plaintiff alleged:

“That on March 23, 1916, the plaintiff was an employé of defendants, and each of them, and the defendants, and each of them, were employers of plaintiff, and while on such date engaged in the regular course of his employment, as a result of the negligence of said employers and each of them, and their agents, servants, and employés, the plaintiff received the injuries, and has become entitled to recover the damages, hereinafter alleged; that plaintiff was at such time an employé of what was known as ‘The Fisheries Company,’ and he was an em-ployé of said * * * individual defendants, who were, with others, principals in the operations hereinafter alleged, and were, with others, acting therein both personally and through their servants, agents, and employés, under the name also of ‘The Fisheries Company,’ being associated together as trustees, and in their collective capacity carrying on such operations, and as such having and exercising almost all the various powers of a corporation, and that they, with others, were authorized to and did carry on such operations and the business of such company in such collective capacity and under such name; that at such time the concern known as ‘The Fisheries Company’ was operating and organized as an unincorporated joint-stock association, and said three individual defendants were, with others, operating and carrying on such business and its incidents, associated together under the collective name of ‘The Fisheries Company,’ whose business and purpose was mainly the manufacturing, handling, and marketing of fish oil and fish scrap and ail byproducts from fish, and particularly from the fish known as the menhaden, for profit, and that preparations were then being made to engage extensively in such business; that the officers of such associated trustees in their collective capacity, or of such unincorporated joint-stock association, or of both, were at such time, and for some time prior thereto, the defendants J. W. Munn, W. L. Moody, Jr., and O. J. Delaney, who were, respectively, president, secretary and treasurer, and vice president and general manager, and whose authorities and duties as such were, .among other things, those usually incident to such offices in the case of corporations, so far as applicable thereto; that each of such individual defendants was also at such time a member and shareholder of and in said unincorporated joint-stock association, whose powers, duties, and privileges, as such shareholders and members, were in general the holding of shares of stock therein, representing pro tanto the beneficial interest in the property involved in the concern, the right thereby to participate in the profits of the business, to attend annual and called meetings of the shareholders for the election of trustees and for the transaction of other business at such meetings, to have a vote and to share in the estate at dissolution; that each of said individual defendants was, moreover, a trustee of such concern, in whom and other trustees was vested the legal title to all of the property thereof, and who had the following powers and duties, among others: To absolutely hold, manage, control, and dispose of, subject to the articles of organization and to the by-laws of the association, the properties and business of the concern, to meet as a board monthly or upon call of the president or any of the trustees; to make, adopt, and amend by-laws, rules, and regulations not inconsistent with the articles of organization for the conduct of the business, themselves, and their .agents, servants, and representatives; to elect officers and give them additional powers, to appoint agents for the conduct of the business, and to compensate themselves and the officers and agents; to issue certificates of shares; to wind up the business at its termination; to purchase, erect, own, lease, and operate factories, machinery, and any and all other equipment of any kind or nature, useful or convenient for use in the business aforesaid; to sell the products produced by the company; to deal in fish products, and to do any and all other matters and things directly or remotely connected with the business of the association.”

Munn and Moody in their answer alleged that at the time plaintiff entered into the employment of The Fisheries Company he contracted in writing with such association that no one of its members or shareholders should be personally liable to him, and that for all debts or damages arising in any way in his favor against the association he would look alone to its property and assets, and that by reason of such agreement, and as part consideration of his employment, he waived any right to recover against defendants individually any damages occasioned by the injuries alleged in his petition. The contract made by plaintiff was set out, and is as follows:

“I hereby apply for employment to The Fisheries Company, which I know to be a joint-stock association, -whose members are not liable personally for any liability of said association incurred or to be incurred as stipulated in its articles of association or declaration of trust, of which I take full knowledge, and for all debts or damages arising in any way in my favor henceforth against said association I shall look alone to its property and assets.”

It was then alleged, that by the execution of said agreement plaintiff took full notice of the fact that The Fisheries Company was a joint-stock association, carrying on business under articles of association or declaration of trust, and the provisions of said articles or declaration of trust were incorporated in and became part of said agreement; that by paragraph 18 of said articles of association or declaration of trust it was provided at the time said agreement was made, and at the time plaintiff alleged he received the injuries, that—

“the funds and property of the association shall stand primarily charged with the burden of the payment of any claim or money demand established or existing on account of the operations and business of the association, whether founded on contract or tort; it being distinctly understood, agreed, and so declared that there shall not be any personal liability in any event upon the trustees or any of them, or any shareholder hereunder.”

A copy of the articles of association or declaration of trust was attached to the answer as an exhibit. It is in the form of an agreement between three shareholders, who are described as having been duly elected as trustees, and the only other shareholder, in which it is provided that The Fisheries Company shall be a joint-stock association. The respective rights of the shareholders and of the trustees', and the method adopted for carrying on the business, are stated, in substance, in plaintiff’s pleading above quoted, with the exception of the provisions relating to the liability of shareholders and trustees. These, in addition to the one quoted in stating the allegations of defendants’ answer, are as follows: The trustees shall have no power to bind the shareholders personally, and persons dealing with the trustees shall look only to the funds and property of the association, and cannot hold the trustees or shareholders personally liable therefor; the stationery used by the trustees shall have printed thereon a statement that the company is a joint-stock association, without personal liability in any event of the trustees or shareholders, in accordance with its declaration of trust and by-laws, of which all persons dealing with it must take notice; that in engaging any employé the trustees shall advise him that the association is a joint association, without personal liability in any event of trustees or shareholders, and shall require him, before entering on his duties, to sign a statement to the effect that he recognizes such fact, and is fully advised of the existence and contents of the declaration of trust.

If the special answer stated a good defense, the court committed material error in striking it out. The trial court based his ruling on the theory that Munn and Moody were masters of McCoy, and that the principle which renders void, on the ground of public policy, all efforts on the part of the master, by previous contract, to screen himself from liability for negligence of himself or his employés to an employé, rendered invalid the contract with McCoy set up in the answer. Appellants concede the correctness of the principle relied on by the court, and, apparently, that it is of universal application, but contend that the principle cannot aid in determining who are masters, and that in this case Munn and Moody were not the masters of McCoy except in their capacity as trustees or partners, and that they did not contract against liability in such capacity. Before taking up and discussing the contention, we call attention to the fact that the appellants and appellee are not in accord on the question whether the agreement for the creation of The Fisheries Company brought into being a business trust or an association of such a character that the shareholders were partners. Both contend that a decision of that question is not necessary. Appellants believe it created a business trust, and argue that the shareholders did not as principals own or participate in the ownership of the property or of the profits to be derived from the business. As the shareholders are impliedly given the power to transact other business at the annual meetings than the election of trustees, and their right to a division of profits is not postponed to the termination of the business enterprise, and the right has not been vested in the trustees to determine when, and to what extent, profits will be divided, it appears to us that the cases relied on are based on considerably different facts, and The Fisheries Company should perhaps be held to constitute a partnership. Appellants, upon the theory that it is a trust, indulge in a plausible argument concerning the consequences of holding that trustees of large business enterprises and of educational and religious enterprises cannot relieve themselves of all personal liability. However, as they contend that members of ordinary partnerships, or joint-stock associations constituting partnerships, can relieve themselves from personal liability to the same extent and in the same manner as trustees, it is apparent that their contention does not rest upon any particular merit in trusts, or peculiar analogy between trustees and officers of corporations, receivers, executors, and administrators. We now come to the proposition upon which they must rely, namely, that trustees or partners can by contract sever their representative capacity from their individual capacity, so as to mate themselves masters of their employes only in a representative capacity. They rely upon the rule that trustees, and also partners, if the statement made in the case of Lumber Co. v. Pine Co., 31 Tex. Civ. App. 375, 72 S. W. 875, announces a correct rule, can by contract exempt themselves from personal liability growing out of contracts, and limit liability to the property and funds held by them for the trust or partnership estate. In this connection they contend that the same rule applies to liability for torts, but cite no case so holding. The case of Wright v. Caney River Co., 151 N. C. 529, 66 S. E. 588, 19 Ann. Cas. 384, is specially relied on in this connection. In that case the question decided was that the trust estate was liable for damages suffered by reason of death of an employé due to negligence. The court stated that it must not be understood as questioning in any way the position upheld in Taylor v. Davis, 110 U. S. 330, 4 Sup. Ct. 147, 28 L. Ed. 163, and Mitchell v. Whitlock, 121 N. C. 166, 28 S. E. 292, to the effect that a trustee is personally bound for his contract or acts done in the management of the estate, unless it is otherwise clearly stipulated.

From this dictum appellants undertake to draw support not only for the proposition that trustees may limit their liability for torts generally, but even for the tort of negligence to an employé. No doubt they can limit their liability as to some torts, and even relieve the trust estate as to some; for it is not contrary to public policy to stipulate against liability for negligence except in certain relations, such as master and servant, and carrier and passenger.

The foregoing discussion is only intended for the purpose of showing the lack of authority on the question of the right to exempt from liability for torts. We shall take it for granted that there is a general rule that trustees and partners can, by previous contract, exempt themselves from personal liability for contracts and torts, and consider whether such a contract, when made with an employe for exemption from personal liability for negligence of other employes to him, has the effect of making the trustees or partners his masters only in their official or representative capacity and not as individuals. The question, we believe, resolves itself into whether trustees or partners can by contract alter the legal status which the law gives them, and such question must be answered in the negative. Under the law, trustees and partners are persons. They may describe themselves as trustees or partners in making contracts, and sign as trustees or partners, and yet it is their personal contract. They have no separate legal entity as trustees or partners. When they employ a person they are his masters. They may say in’a contract with him that they are not his masters,- and that the trust estate or partnership estate is his master; but property and funds cannot be his master. There must be persons, natural or artificial. In this case there is no corporation, so Munn and Moody were masters personally, regardless of how explicitly they might have expressed an intention to employ only in a representative capacity. They could not change their legal status by contract; but could they make a valid contract exempting themselves from personal liability for injuries suffered by an employe through the negligence of other employes? We gather from appellants’ argument that the principle invalidating such agreements between master and servant is considered by them to be of universal application, and that if Munn and Moody were masters the principle applies to them. At the same time there are expressions from which it can be inferred that public policy does not require the enforcement of such principle when trustees are the masters. As the trust estate or partnership estate may be insufficient to furnish any guaranty of reasonable care to employes, and our statutes provide for corporations and limited partnerships under rules designed to protect those dealing therewith, we cannot conceive that the public policy would be different in the case of a business trust or partnership than it would be if the same business was owned and operated by anindividual.

We conclude that the contract with McCoy constituted no defense to plaintiff’s suit against Munn and Moody. This being the case, the court did not err in its ruling on the exceptions, nor in excluding the portions of the articles of association wherein it was undertaken to provide against personal liability, and admitting the rest for the purpose of showing the relations of Munn and Moody to The Fisheries Company. The excluded portions could not change or affect the relationship of Munn and Moody to the company, and, if we are correct in what we have held, could have served no purpose1 as evidence.

Appellants Munn and Moody contend the court erred in rendering personal judgment against them on the verdict, because there is no finding that either of them personally was the employer of appellee, or was guilty of any negligent act or omission which would make them, or either of them, responsible for the injuries sustained by appellee from negligence of employes of The Fisheries Company. The employes of The Fisheries Company were the employes of Munn and Moody, who were shareholders, trustees, and managing officers of the association. The jury’s findings, which are not disputed, established that appellee’s injuries were caused by many different acts of negligence, most of which consisted in the failure to furnish reasonably safe place and appliances for the work he was engaged in.

Munn and Moody were severally liable ior the full amount of damages sustained by appellee, and the court did not err in refusing to bold them liable for such part as would be arrived at by charging each with one-twelfth, there being twelve trustees, or dividing the liability between all shareholders.

The judgment is affirmed.

On Motion for Rehearing.

In the leading case of Taylor v. Mayo, Adm’x, 110 U. S. 330, 4 Sup. Ct. 147, 28 L. Ed. 163, the court said:

“When a trustee contracts as such, unless he is bound no one is bound, for he has no principal. The trust estate cannot promise; the contract is therefore the personal undertaking of the trustee.”

If the trustee designates himself as such, or signs as such, he is¡ nevertheless bound personally. Elliott on Contracts, § 511. If the trust or partnership estate cannot promise, it cannot employ. The employment of McCoy was therefore the personal undertaking of the “trustees” of The Fisheries Company. If the trustees had signed a contract with McCoy stating that they, as trustees, employed him, or that The Fisheries Company employed him, it is clear they individually would, nevertheless, be the persons who entered into the relation of masters. A contract stating that McCoy agrees to the nonliability portions of the so-called trust agreement, and that he will look alone'to the property and assets of The Fisheries Company for all debts and damages which may become due him, does not change the-status of the trustees, who are still individually his masters, but undertakes to restrict their liability.

Appellants Munn and Moody contend that as trustees or partners are permitted to contract so as to limit liability to the assets held by them as trustees or partners, when they make such a contract it is one in their representative capacity. They then say that, as they made that kind of a contract with McCoy, they became his masters only in a representative capacity, and therefore “there is no limitation of the liability of the only employer, the representative as such.”

We consider this course of reasoning fallacious. In order to arrive at the conclusion that the trustees are masters in their representative capacity, and therefore “there is no limitation of the liability of the only employer, the representative as such,” reliance is placed solely on the terms of the contract. 'But Munn and Moody cannot base their contention on the assumption that the very provision in dispute is valid. We believe that under the authorities, if the contract had merely provided that McOoy, in the collection of his salary or wages, would be limited to the assets of the trust or partnership estate, the trustees could not claim that they were released from personal liability for injuries suffered by reason of negligence. In other words, it is not a question of capacity in which the contract is made, but a question of limitation of liability. Such a contract does not change the status of the trustees or partners, but restricts their liability, provided the restriction is not invalid on account of being contrary to public policy. To say that a provision is a limitation of liability, and upon such proposition base a train of reasoning culminating in the final conclusion that such provision is not a limitation of the liability of the master, is assuming the validity of the provision in question for the purpose of proving its validity.

Munn and Moody were the masters of Mc-Ooy, and they made a contract absolving themselves from liability for injuries suffered by reason of negligence. To the extent that the contract'so provided it is void, as contrary to public policy, unless there be some peculiar merit in trust or partnership enterprises, such as The Fisheries! Oompanyk which calls for the application of a different rule. Munn and Moody in their brief apparently take it for granted that, unless they can show that the provision of the contract relied on is not one limiting the liability of the masters, it will fall under the general rule and be invalid. In saying that the principle invalidating such contracts is considered by them to be of universal application, we made an unnecessary statement, and they protest that no rule of human origin can well be held to have universal application. We should have said that they appear to take it for granted in one portion of the argument that, if the contract was a limitation of the liability of the masters for negligence, it would be invalid under the general principle invalidating such contracts, but in another portion of the argument it is virtually contended that trust conducted enterprises or businesses have a peculiar merit or usefulness, from which argument it might be deduced that an exception to the general principle might well be permitted when the masters are conducting a trust business. It was in this connection, and not in answer to what we considered Munn and Moody’s main contention, that we stated that as the law has provided methods for carrying on business enterprises by means of corporations and limited partnerships, so that persons can limit their risk to what they put into the business, we could not see that public policy would recognize any particular necessity for favoring persons electing to do business under The Fisheries Company plan above an individual who engages in the same business. We did not contend that such legislation prohibits the right to contract for immunity, but the fact that there is such legislation may, we think, with propriety be considered, if it be contended that there is any peculiar necessity for, or merit in, business enterprises, such as The Fisheries Company, which would call for a different public policy as to those associated together therein than it would as to one person engaged in a similar enterprise or business.

It is stated that what we said concerning the facts might be subject to the construction that McCoy’s injuries were due to the personal fault of Munn and Moody. The evidence shows that neither of them undertook the supervision of the work of erecting the plant, and neither was present at - the time McCoy was injured. The findings of the jury are supported by the evidence. We adopt them as our findings, and deem them sufficient to support the judgment against Munn and Moody.

The motion for rehearing is overruled.


source: Caselaw Access Project

author: RASBURY, J.

license: Public Domain

text:
    DORSEY v. UNITED BROTHERHOOD OF FRIENDS.
    (No. 7925.)
    (Court of Civil Appeals of Texas. Dallas.
    March 30, 1918.)
    1. Judgments <§==>137 — Vacation—Absence. of Written Motion — Statute.
    Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2020, providing that every motion for new trial shall be in writing and signed, and specify the ground on which founded, is directory, and the court had authority to set aside, on its own motion, in the same term, a default judgment against defendants in the absence of written motion invoking the relief.
    2. Judgment @=>078(1) — “Res Judicata”— Elements.
    Judgment against a fraternal order in favor of claimed beneficiaries was not res judicata of the claim against the order of the guardian of another beneficiary; since, to constitute “res judicata,” four elements must concur: Identity in the thing sued for, identity of cause of action, identity of persons and of parties to the action, and identity of the quality in the persons for or against whom the claim is made.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Res Ad-judicata.] .
    Appeal from Dallas County Court; T. A. Work, Judge.
    Suit by Lewis Dorsey, guardian, against the United Brotherhood of Friends. From the judgment, plaintiff appeals.
    Reversed and remanded.
    I. C. Underwood, of Dallas, for appellant.
   RASBURY, J.

Appellant, as guardian of Lena Dorsey, sued appellee upon its benefit or life insurance policy issued to Katie Washington Vickers, formerly Katie Washington Dorsey, appellant’s wife and his ward’s mother, to recover $250, alleging said policy to be in the sum of $500 and that his ward was the beneficiary named therein and entitled to recover the full amount, of which she had been paid $250. By answer appellee admitted that it had paid appellant’s ward $250, but denied appellant’s ward was entitled to the balance of the sum on the ground that it was by the terms of the policy payable to Jettie Jones, formerly Jettie Dorsey, wife of Clyde Jones. The unpaid portion of the policy was tendered into court with prayer for citation to Jettie Jones and her husband, Clyde Jones. By supplementary I pleading appellant asserted that his ward was the only daughter of Katie Washington Vickers, and that she never had a daughter named Jettie Dorsey, and if such person is named in said policy it was a mistake and without authority of law and a fraud upon the rights of appellant’s ward, who, as a consequence, was the only beneficiary in said policy. The pleading so stood on appearance day of the January, 1917, term of court, at which time appellant secured interlocutory judgment by default against Clyde and Jettie Jones, upon whom citation in the meantime had been served. On January 4, 1917, the ease was regularly called .for trial, whereupon judgment was rendered requiring appellee to pay into the registry of the court the $250 admitted to be due and dismissing it from the case with costs upon compliance with the decree. The case as between appellant and Clyde and Jettie Jones was passed for further consideration by the court of the sufficiency of service on the latter to support the default judgment. On January 20, 1917, the case was again considered, at which time Clyde and Jettie Jones appeared in court in propria persona and admitted they had in fact been duly cited by by service of the citation being considered by the court. Appellant thereupon moved for final judgment against Clyde and Jettie Jones. At this point it was called to the attention of the court by counsel for appellee, we assume, that Clyde and Jettie Jones had secured in another court a judgment against appellee for the liability sought to be fixed in this proceeding. Thereupon the court overruled appellant’s motion to make the default judgment against Clyde and Jettie Jones final, and of his own motion set aside and vacated same and continued the cause to the next term of court to allow appellee for its protection to plead said reputed judgment in bar of this action. At the next term of court appellee filed plea of res judicata, based upon the judgment of the county court of Smith county in a proceeding by Clyde and Jettie Jones against appellee on the policy sued on by appellant, wherein final judgment was against appellee thereon for $250, which judgment was shown to be a subsisting unreversed decree and not appealed from. Appellant met the plea by special exceptions asserting it to be insufficient among other reasons, because it appeared therefrom that appellant was not a party to the judgment and because the parties in both proceedings were not the' same. The case was again considered March 7, 1917, at which time appellant’s exceptions to appel-lee’s plea in res judicata were overruled, the plea was sustained, and judgment entered against plaintiff and for defendant with all costs, and it was decreed that the money paid by appellee into the registry of the court there remain, pending appeal to this court.

The facts necessary to he stated are these: The policy was issued to Katie Washington Tickers, former wife of appellee and mother of his ward and daughter, Lena Dorsey. The amount of the policy was $500. The beneficiaries named therein were Lena and Jettie Dorsey. Jettie Jones was not Jettie Dorsey before her marriage. She was Jettie Washington, sister to Katie Washington Vickers. According to the secretary of the local lodge of appellee, Katie Washington Vickers directed that the benefits under the policy should be paid to her daughter, Lena Dorsey, and her sister, Jettie Washington. The local secretary claims she so directed the grand secretary. When the grand secretary returned the policy to the local secretary, the benefits were payable to Lena and Jettie Dorsey. She therefore wrote Washington-after Jettie therein, but after making the change she concluded it did not look “well” and she erased Washington and left it as it was originally. Appelleee, after qualifying as guardian of his daughter, was voluntarily paid $250, and at the time was asked if he was father of both girls, and, upon saying he was not, payment of the balance was refused. The judgment pleaded in bar of any claim appellant had upon the remaining benefits due under the policy was rendered by the county court of Smith county and awarded judgment in favor of Clyde and Jettie Jones against appellee on a policy issued by the latter to Katie Vickers; the amount of the judgment being $250. The petition made appellant a party thereto, but the judgment dismisses him from the suit on the ground that service was not had upon him.

It is contended by appellant that the court was without authority to set aside on his own motion the default judgment against Clyde and Jettie Jones in the absence of a written motion invoking that relief. The contention is based on article 2020, Vernon’s Sayles’ Civil Statutes, which provides that every motion for new trial shall be in writing and signed by the party or his attorney and shall specify the ground upon which it is founded. If the contention is correct, it results that the action of the court was void, and it would be proper here and now to enter judgment for appellant for the fund deposited in court by appellee. Appellant asks that such relief be given. It seems, however, that the article cited is held to be directory. In Cohen v. Moore et al., 101 Tex. 45, 104 S. W. 1053, it is said that:

“The power to set aside at the same term at which they are rendered its judgments and orders is one inherent in every court of general jurisdiction, and it is not taken away by the statutory provisions which regulate the subject of new trials and the setting aside of defaults.”

Accordingly, when the trial court vacated the default judgment against Clyde and Jet-tie Jones, all rights thereunder were lost to appellant, and it cannot form the basis of a judgment in this court.

The contention is also made that the court erred in holding that the judgment of the county court of Smith county was a bar to the right of appellant to litigate in this proceeding his claim to the unpaid portion of the policy. We agree with the contention. The doctrine of res judicata is plain and intelligible, and its final analysis is to declare that a cause of action once finally determined between the parties on its merits, by a competent tribunal, without appeal, cannot afterwards be litigated by a new proceeding before the same or any other tribunal. To constitute “res judicata” four elements must concur: Identity in the thing sued for; identity of cause of action; identity of persons and of parties to the action; identity of the quality in the persons for or against whom the claim is made. The foregoing definition and rules are in substance those of Bouvier. Their statement obviously discloses that the Smith county judgment met but few of the concurring elements of the rule. As a consequence, the court erred in holding that that judgment was a bar to any claim appellant asserted to the unpaid portion of the benefit under the policy.

While there is in the record some evidence tending to show who Katie Washington Vick-ers intended should receive the benefits under the policy, it is not conclusive, and the case on that issue does not appear to have been fully developed. For that reason we do not feel justified in attempting to render judgment here on that issue, since it is the function of the jury or court to pass on the facts, and since that issue seems to have been overlooked when the conclusion was reached that the Smith county judgment was res judicata. Under appropriate pleading upon another trial that issue may be developed, and it seems to us that the controlling and important issue is whether Katie Washington Vickers directed that the policy should be issued as it was issued, and, if not, what she really did intend.

There are several other issues presented in the brief, but a discussion thereof is unnecessary in view of our conclusions on the issues discussed above.

The judgment is reversed, and the cause remanded for another trial not inconsistent with the views herein expressed.

Reversed and remanded.
      ®=aFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: FLY, C. J.

text:
    FT. WORTH & R. G. RY. CO. v. ZIDELL.
    (No. 5997.)
    (Court of Civil Appeals of Texas. San Antonio.
    March 27, 1918.)
    1. Receiveks <&wkey;168 — Action against Railroad Company aetek Termination of Receivership.
    Where railway was in hands of receivers when plaintiff’s cause of action for injury to shipment of household goods accrued, and for nearly a year thereafter, the receivers should be made parties to his action against the railroad for such damage, brought after termination of the receivership.
    2. Railroads <@=3265 — Receivers—Liability iron Injuries to Property.
    A railway company, after termination of receivership, was not liable for loss or damages to shipment of household goods occurring during the receivership, where it was not shown that the receiver operated at a profit, and that sufficient net earnings to pay all claims incurred by the receivers had been paid over to the company on termination of the receivership, or that the court appointing the receiver made his debts a charge upon the corpus of the property, or that, when the receivership terminated, the debts incurred were made a charge against the railway company.
    Appeal from Menard County Court; J. D. Scruggs, Judge.
    Action by J. Zidell against the Et. Worth & Rio Grande Railway Company. From judgment for plaintiff, defendant appeals.
    Reversed and rendered.
    S. C. Rowe, of Ft. Worth, and Sam McCol-lum, of Brady, for appellant. Joe P. Flack and Fred T. Neel, both of Menard, for ap-pellee.
   FLY, C. J.

This suit originated in the justice’s court, where appellee sought and obtained a recovery of appellant for $154, and $20 for attorney’s fees, alleged to have accrued from damages to certain household furniture, mercantile furniture, and fixtures shipped from Rosebud, Tex., to Menard, Tex. The cause was appealed to the county court, where appellant answered, alleging that on July 5, 1913, the railway was placed in the hands of receivers and had remained in the hands of such receivers, who were appointed by a federal District Court, until November 3, 1916, and that the railway was in the hands of the receivers when this cause of action accrued, and for nearly a year thereafter, and appellant was not, by allegation or proof, shown to he liable for the damages, if' any were incurred. The cause was tried without a jury, and judgment rendered in favor of appellee for $154, with interest at 6 per cent, from November 23, 1915.

Appellee neither alleged nor proved any cause of action against appellant. The evidence showed that when the shipment was made, and a long time before and after that time, appellant’s property was in the hands of receivers, and they were not made parties ; neither was there any allegation or proof that the road had been operated at a profit, and that sufficient net earnings to pay all claims incurred by the receivers had been paid over to the appellant when the receivership was terminated. As said by the Supreme Court in Railway v. McFadden, 89 Tex. 138, 32 S. W. 526:

“A receiver is the agent of the court, and not the agent of the owner of the property which is placed in his charge, and it is well settled as a general rule that the owner is in no manner responsible for the receivers’ acts. * * *
We cannot hold that from the mere fact that upon their discharge the company took charge of its property it made itself liable for a breach of their contracts or for their torts.”

There was no effort made to show that the court appointing the receiver made his debts a charge upon the corpus of the property, or that when the receivership was terminated the debts incurred were made a charge against the railway company. Trust Co. v. Railway Co., 59 Tex. Civ. App. 157, 126 S. W. 296; Kirby Lumber Co. v. Cunningham, 154 S. W. 288; Railway v. Ballou, 174 S. W. 337. The last case cited is quite similar to the one under consideration.

The judgment is reversed, and judgment here rendered that appellee take nothing by his suit, and that he pay all costs incurred in this and the two lower courts.
      igx^jFor other oases see same topic and KBY-NTJMBBR in all Key-Numbered Digests and Indexes


text:
    FT. WORTH & R. G. RY. CO. v. ZIDELL.
    (No. 5998.)
    (Court of Civil Appeals of Texas. San Antonio.
    March 27, 1918.)
    Appeal from Menard County Court; J. D. Scruggs, Judge.
    Action by J. Zidell against the Et. Worth & Rio Grande Railway Company. From judgment for plaintiff, defendant appeals. Reversed and rendered.
    S. C. Rowe, of Ft. Worth, and Sam McCol-lum, of Brady, for appellant. Joe P. Flack and Fred T. Neel, both of Menard, for appellee.
   FLY, C. J.

Appellee recovered judgment in this case for $188.75 in the justice’s court, which he claimed to be due Mm on account of the loss of certain merchandise, which was shipped from Rosebud, Tex., to Menard, Tex. The cause was appealed to the county court, where a judgment for the same amount was rendered.

The goods were shipped on October 28, 1915, and at that time and for many months prior to that time and many months subsequent to that time the railroad was in the hands of receivers appointed by a federal District Judge. The receivers were appointed on July 5, 1913, and on November 3, 1916, the roceivers were discharged. There was no order making the railway company liable for debts of the receivers, and, no evidence that any moneys were earned by the receivers which were invested in betterments or paid over to appellant. The receivers were not made parties. No cause of action was shown against appellant. See companion case of Railway v. Zidell, 262 S. W. 351, this day decided by this court.

The judgment is reversed, and judgment here rendered that appellee take nothing by his suit and pay all costs in this behalf, expended.


text:
    GALVESTON, H. & S. A. RY. CO. et al. v. GIBBONS.
    (No. 5990.)
    (Court of Civil Appeals of Texas. San Antonio.
    March 13, 1918.
    Rehearing Denied April 10, 1918.)
    1. Evidence <&wkey;505 — Experts—Questions op Fact.
    In action against railroad for damages to shipment of horses, it was proper for a witness who had qualified as to his knowledge of the market and as an expert to testify as to what the market value of the horses would have been at the point of destination if they had been transported in the usual manner and time; such testimony being in respect to a fact.
    2. Carriers <&wkey;>228(3) — Live Stock — Action —Evidence.
    In such action, there being evidence that there was, at the destination point, a market for the kind of horses shipped, plaintiff was properly permitted to testify as to what the market value of the horses was in the condition in which they were delivered ■ at that point.
    3. Carriers <&wkey;229(2) — Live Stock — Damages.
    In such action, the measure of damages was the difference between the value of horses at the point of destination had they been properly and promptly transported and their value as actually delivered.
    4. Carriers <&wkey;218(10) — Live Stock — Claim of Loss.
    Filing suit and service of citation in less than 91 days complied with requirement of notice within such time in live stock shipping contract.
    5. Carriers <&wkey;219(8) — Live Stock —Claim of Loss.
    Under live stock shipping contract providing for notice only to agent of initial carrier, notice to the initial carrier was notice to connecting carriers, since connecting carriers could not claim benefits of the contract without assuming the burdens arising from it, and, if the shipment was not a through one and each carrier was independent of the other, none but the initial carrier had a contract, and connecting carriers had no right to notice.
    6. Carriers <&wkey;228(5) — Live Stock — Action —Evidence.
    In action for damages to horses shipped, from rough handling and delay, evidence held to sustain verdict against initial carrier as well as connecting carriers.
    Appeal from Uvalde County Court; Jno. W. Hill, Judge.
    Action by G. N. Gibbons against the Galveston, Harrisburg & San Antonio Railway Company and others. From judgment for plaintiff, defendants appeal.
    Affirmed.
    , Wilson, Dabney & King, of Houston, W. B. Teagarden, of San Antonio, and George Thompson, of Dallas, for appellants. Baker, Botts, Parker & Garwood, of Houston, and G. B. Fenley and L. Old & T. P. Hull, all of Uvalde, for appellee.
   FLY, C. J.

This suit was filed in the county court of Uvalde county by appellee against the Galveston, Harrisburg & San Antonio Railway Company, the International & Great Northern Railway Company, James A. Baker, receiver of the last-named company, and the Texas & Pacific Railway Company to recover damages to certain horses shipped from Spofford to Atlanta, Tex. It was alleged that the damages arose from injuries to the animals, due to their being roughly handled and delayed on the way. The International & Great Northern Railway Company alleged that its properties were at the time of shipment and at the time suit was instituted in the hands of Receiver Baker. The other defendant answered that the- initial carrier was the Galveston, Harrisburg & San Antonio Railway Company and set up stipulations in the shipping contract; that the horses were crowded in the cars, large and small animals being mixed together. A stipulation as to notice of the claim in not less than 91 days from date of loss was pleaded. A trial by jury was had, a verdict being instructed in favor of the International & Great Northern Railway Company, and a verdict as against the initial carrier, $250, as against the receiver $225, and as against the Texas & Pacific Railway Company for $25, upon which verdict judgment was accordingly rendered in favor of appellee.

The first assignment of error assails the action of the court in permitting G. N. Gibbons to testify as to the market value of the horses in question at the point of destination at the time they would have arrived, and in the condition in which they should, have arrived, if they had been transported in the time and manner that stock is usually transported between the starting point and point of destination. The evidence was assailed on the ground that the witness was not qualified to testify, and that his testimony was an opinion and conclusion of the witness, on a mixed question of law and fact. The witness had qualified as to his knowledge of the market and as an expert, and he was called upon to testify as to a fact. The testimony does not come within the purview of Railway v. Roberts, 101 Tex. 421, 108 S. W. 808, Railway v. Hamon, 173 S. W. 613, Railway v. Holmes, 177 S. W. 505, Railway v. Gatewood, 185 S. W. 934, or Railway v. James, 190 S. W. 1139. In those cases the questions of diligence, care, and negligence were passed upon by the witnesses, and the courts properly condemned it. The distinction between the evidence elicited in this case and that condemned in the cited cases is clearly drawn in a number of cases. Railway v. Drahn, 163 S. W. 330; Railway v. Bogy, 178 S. W. 577; Railway v. Meyer, 155 S. W. 309; Railway v. West, 149 S. W. 206. We are convinced that the evidence was legitimate and proper, and do not feel disposed to extend the scope of the Roberts Case and those cases following it. In the case of Railway v. Hahn Packing Co., 197 S. W. 1146, it was held that the following question was not erroneous :

“Please tell the jury what the actual cash market value of the first shipment of cattle of 29 head that went out on June 1st would have been per hundred pounds had the' same been carried with reasonable dispatch and without any rough handling.”

The Roberts Case is discussed in the opinion by Judge Talbot and the subject thoroughly handled. It effectually disposes of the contention in this case.

The second assignment of error is overruled. Gibbons testified that there was a market for the kind of horses that he shipped at Atlanta at that time. There was the testimony of Jett, a witness for appellant, th,at tended to show that there was a market for horses in Atlanta. It was not error to permit appellee to testify as to what the market value of the horses wasi in the condition in which they were delivered at Atlanta.

The third assignment of error cannot be sustained. It was not error to charge the jury that the measure of damages was tire difference in value of the animals in Atlanta had they been properly and expeditiously transported and their market value in the condition in which they were delivered. If there was testimony tending to show there was no market value for the animals in Atlanta, appellee, and .not appellant, would have been injured had the jury found there was no market value.

The suit in this case wasi filed within less than 91 days after the animals were damaged, and the agent of the initial carrier, with whom the contract was made by appellee, was served with citation in less than 91 days. It is a settled question in Texas that the filing of suit and service of citation complies with the requirement of notice in the contract, if such requirement be valid. Appellants admit that the Supreme Court and Courts of Civil Appeals of Texas have decided directly against their theories and contention. Phillips v. W. U. Telegraph Co., 95 Tex. 638, 69 S. W. 63; Railway v. Hawley, 58 Tex. Civ. App. 143, 123 S. W. 726; Railway v. Davis, 50 Tex. Civ. App. 74, 109 S. W. 422; Railway v. Boger, 167 S. W. 767; Railway v. Neale, 176 S. W. 85. The citation gave “definite written notice” of the claim to an agent of appellants. We do not feel disposed to place this court in conflict with the Supreme Court and three Courts of Civil Appeals, which we would be compelled to do in order to sustain the contention of appellants. Notice to the initial carrier with whom the contract was made was notice to the connecting carriers. The connecting carriers cannot claim the benefits of the contract without assuming the burdens arising from it. The contract only provides for notice to the agent of the Galveston, Harrisburg & San Antonio Railway " Company. The fourth, fifth, sixth, seventh, eighth, and ninth assignments of error are overruled. If the shipment was not a through one, and each carrier was independent of the other, then none but the initial carrier had a contract, and the connecting carriers had no right to notice. Grayson County Bank v. Railway Co., 79 S. W. 1094.

The horses were placed in the shipping pen on February 2, 1916, and allowed by the initial carrier to remain there for 26 hours, the only reason for the delay given being that “it was cold and dark when the train came, and they decided to let the horses go until to-morrow; that is, the following day.” The negligence began before the shipment was started on its way. The trip should have been made in from 34 to 36 hours; it was actually made in over 100 hours, or in other words, there was a delay of about 65 hours, considerably over one-third of which took place on the line of the initial carrier. The evidence is sufficient to sustain the verdict against the initial carrier, as well as the connecting carriers.

The judgment is affirmed.
      <&wkey;Por other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      «te^Eor other eases see same tppic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, C. J.

text:
    RELIANCE LIFE INS. CO. v. ROBINSON.
    (No. 823.)
    (Court of Civil Appeals of Texas. El Paso.
    March 21, 1918.)
    1. Venue <&wkey;72 — Burden oe Pbooe.
    Where defendant’s plea of privilege alleged the facts necessary under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1830, to entitle it to be sued in another county than the one in which suit was brought, and there was nothing in the record showing that plaintiff’s cause of action came within an exception to the statute, the burden was on plaintiff to show his cause of action came within one of the exceptions.
    2. Insubance <&wkey;198(6) — Venue—Recovery oe Premium — “Suit upon Insurance Policy.”
    A cause of action against an insurance company, for the return, in view of cancellation of the policy, of the money paid on the first premium, is not a “suit upon an insurance policy” within Rev. St. 1911, art. 4744, providing that “suit upon insurance policies may be instituted * * * where the policy holder or beneficiary resides.”
    Appeal from Ector County Court; E. V. Graham, Judge.
    Action by C. A. Robinson against the Reliance Life Insurance Company. From judgment for plaintiff, defendant appeals.
    Reversed, and cause transferred.
    Walter Anderson and H. A. Leaverton, both of Midland, for appellant. M. D. Herbert, of Denton, and F. A. Judkins, of El Paso, for ap-pellee.
   HARPER, C. J.

C. L. Stout solicited appel-lee to take out a life insurance policy with appellant. The policy was issued, and after-wards canceled. Appellee paid said Scout $150 in cash on the first premium. For some reason, not revealed by the record, the policy was canceled, whereupon appellee demanded the return of the money paid.

Upon the failure to make return, this suit was filed in Ector county, Tex. Appellant in due season filed its plea of privilege to be sued in Dallas county, which plea under oath shows appellant to be a foreign private corporation with permit to do business in Texas, with an office and agent in Dallas county with no office nor agent in Ector county, etc., alleging, under oath, the necessary facts to entitle it to be sued in Dallas county under article 1830. Vernon Sayles’ Stat. of Texas.'

There is nothing in the record to show that appellee’s cause of action comes within any of the exceptions to this statutory rule, which would authorize suit in Ector county, and after plea was filed the burden was upon him to show that his cause of action comes within one of the exceptions. Graves v. McCullum & Lewis, 193 S. W. 217.

Appellee urges that article 4744, Rev. Civ. Stat. of Texas, authorizes the suit to be brought in Ector county. This article provides that “suit on [insurance] policies * * * may be * * * where the policy holder or beneficiary * * * resides.” It is apparent that this statute has no application for the reason that this is not a suit upon an insurance policy, but this cause of action arose, if at all, upon the implied promise to return the money paid on first premium upon cancellation of the policy.

The court therefore erred in overruling appellant’s plea of privilege. The judgment must therefore be reversed, and the cause transferred to the county court of Dallas county, Tex.

It is so ordered.
      For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    EDENS et al. v. CLEAVES et al.
    (No. 834.)
    (Court of Civil Appeals of Texas. El Paso.
    March 21, 1918.
    Rehearing Denied April 11, 1918.)
    1. Wills <&wkey;358 — Probate— Finality oe Judgment.
    A judgment for probate of a will is not lacking in finality because the will was not copied into such judgment, if the judgment identified the will by definite description, declared it probated, and ordered it to be filed and recorded, and the transcript to the district court showed compliance with Rev. St. 1911, art. 7874, as to filing wills.
    2. Wills <&wkey;384— Pbobate — Habmless Er-boe.
    Error, if any, in admitting affidavits of death and proof of execution of will taken in probate court, in a contest in the district court, is harmless, where both facts were proved by other evidence introduced without objection, especially when death and execution of the will were not questioned.
    3. Wills &wkey;378 — Probate—Evidence—Admissibility.
    In will contest in district court, where witness in county court was too ill to appear, proponents were entitled to prove her illness to explain why they did not put her on the stand; testimony in county court being offered, but not introduced in evidence.
    4. Wills <&wkey;384r — Invited Error.
    In will contest, where contestants insisted that a witness was not too ill to go on the stand, they could not complain of proof of the extent of the illness to the effect that witness had fainted in an adjoining room.
    5. Trial <&wkey;50 — Dismissing Jury.
    It is a matter within the discretion of the court whether the jury should be dismissed during a colloquy between counsel.
    6. Wills &wkey;>384^-HABMLEss Error.
    In will contest, error, if any, in argument of counsel relating to proponent and her illness to the effect that she was caused to faint by abuse of defendant’s counsel was not prejudicial where, in any event, the evidence greatly preponderated in favor of the proponent, and the matters referred to had occurred in the presence of the jury.
    7. WILLS <&wkey;330(l) — PROBATEr—lNSTRUCTIONS.
    Instruction that if testator had sufficient mind and memory to know and appreciate what he was doing, the extent and nature of the property, and the persons he wished to make the objects of his bounty, he had sufficient mental capacity to execute a will, was sufficient.
    8. Wills <&wkey;332 — Probate—Instructions.
    In will contest, requested charge, referring to acts of proponent and requiring finding of undue influence if she by false representations procured testator to make no bequest to contestants, was properly refused as improperly singling out certain facts.
    9. Trial <&wkey;260(l) — Probate—Instructions.
    There was no error in a will contest in refusing special requested instructions fully covered by the general charge given.
    10. Wills &wkey;>322 — Cure oe Errors.
    If evidenpe was improperly admitted in will contest, its withdrawal by the court cured the error.
    11. Wills <@==>53(6) — Contests — Evidence-Admissibility.
    It was not error to admit evidence of testator’s sister that their mother’s brain was affected by disease and worry; such being a matter of family history, and having no force against contestant’s contention of undue influence.
    Appeal.from District Court, El Paso County; Ballard Coldwell, Judge.
    Will contest between Mrs. M. A. Cleaves and others, proponents, and Mrs. Bettie Edens and others, contestants. Prom the decree of the district court on appeal from probate court admitting the will to probate, contestants appeal.
    Affirmed.
    L. A. Dale, Hudspeth & Harper, and M. W. Stanton, all of El Pasp, for appellants. Lea, McGrady & Thomason, of El Paso, and Jno. B. Littler, of Big Springs, for appellees.
   HARPER, C. J.

This proceeding was instituted in the probate court of El Paso county by appellees to probate the will of W. E. iRho-ton, deceased. The probate was contested by appellants upon the grounds of unsound mind and undue influence exercised by Mrs. Cleaves at the time of the execution of the will. The will was probated, and an order entered to that effect upon the probate minutes. The case-was appealed to the district court, where upon trial before a jury, the same judgment was entered, from which this appeal.

Assignments 1 to 5, inclusive, urge that because the will was not copied in the judgment of the county court, there was no final judgment there from which to appeal to the district court; therefore the district court had no jurisdiction to try'it. The judgment entered by the probate court identifies the will by definite description, declares it probated,. and orders it filed and recorded, and the transcript to the district court sufficiently shows that the order of the court and article 7874, Revised Statutes» were complied with by the clerk of that court.

By the sixth the point is made that the affidavits of death and proof of execution of will taken before and filed in the probate court were not admissible in evidence in the district court. If they were not admissible, there is ample proof of both by other evidence introduced without objection. Besides, there is no question of death, nor of execution of the will.

The seventh and eighth charge reversible error in permitting appellees over the objections of appellants to prove by witnesses that Mrs. Cleaves was too sick to testify in the district court, and in offering her evidence taken in the county court. She was not placed upon the stand, nor was her testimony taken in the county court introduced in evidence, so appellees insist that they were entitled to prove her illness to explain why they did not put her on the stand. In this we think appellees are correct. Railway v. White, 80 Tex. 207, 15 S. W. 808.

Appellants further insist that the jury should have been retired, and that appellees should not have been permitted to prove that the “old lady was suffering with a goiter and had fainted,” etc. The record clearly shows that appellants were insisting that the witness was not too sick to be placed upon the stand; thus they brought about the necessity of proving the extent of her illness to show that in fact she was not able to go on the stand as a witness.

Whether the jury should have been sent out of the courtroom during the colloquy between counsel over the point was a matter of discretion with the court, and'it does not appear that such discretion has been abused in this instance.

The ninth complains of argument of counsel referring to the proponent of the will, stated, “whose sickness cannot be questioned as proven by one of the best doctors in town; an old woman with a goiter, who fainted and is now lying in the other room, and whom you caused to faint by your abuse.”

And the tenth charges that it was error to refuse to give special charge requested not to consider such argument. These were matters which had occurred during the trial in the presence of the jury, already known to them, except the charge that “she was .caused to faint by your abuse,” so we think it not likely that the argument had any harmful effect, especially so since the great preponderance of the evidence is in support of the verdict of the jury; that deceased was of sound mind at the time of the execution of the will; and that its execution was not procured by undue influence. La Grone v. Railway Co., 189 S. W. 99.

By the eleventh and twelfth, appellants assert that the main charge of the court is insufficient, in that it was not full enough. The portion of the charge complained of is as follows:

“Question No. 1: Do you believe from the preponderance of the evidence that on December 9, 1915, William E. Rhoton had sufficient mental capacity to execute the will in controversy and dispose of his property? Answer yes or no.
“If you find from a preponderance of the evidence that on the occasion above mentioned William B. Rhoton had sufficient mind and memory to know and appreciate the business he was engaged in, the extent and nature of the property he was disposing of in said will, and the persons he wished to make objects of his bounty, he would in law be deemed of sufficient mental capacity to execute a will, and you will answer question 1 ‘Tes.’ If you do not so find from a preponderance of the evidence, you will answer this question ‘No.’ ”

This charge is sufficient, and if appellant desired a more definite or extensive charge, they should have prepared a proper one and requested it.

By assignments 13 and 14 it is urged that the court should have given in the connection next above the following charge:

“Do you find from a preponderance of the evidence that by false and fraudulent representations made by Mrs. M. A. Cleaves, in reference to the character and conduct of members of the Rhoton family, to Wm. E. Rhoton, deceased, prior to the signing of the written instrument dated December 9, 1915, the said Wm. E. Rho-ton was induced to execute the said written instrument as his last will and testament? Answer yes or no.
“You are instructed in determining the above issue that you will consider all the facts and circumstances shown by the evidence, if any, proving or tending to prove, if they do, the issue above submitted to you.”

This was not a proper charge, because it is upon the weight of the evidence, and picks out one isolated transaction in evidence, and makes it a basis of the finding of the jury upon ohe of the main issues. This disposes ' of the nineteenth, which is to the same effect.

The fifteenth and sixteenth complain of refusing a special requested charge. The issue was sufficiently covered by the main charge; it was therefore not error to refuse it.

The seventeenth and eighteenth are improperly grouped, but we have considered them, and are of the opinion that they are without merit.

The twentieth to twenty-second, inclusive, urge that it was error to admit certain testimony. The record shows it to have been withdrawn by the court, and the agreed statement of facts does not contain it; therefore these assignments are without merit. Wiseman v. Baylor, 69 Tex. 67, 6 S. W. 743.

The twenty-third charges that it was error to permit the deceased’s sister to testify that their mother’s brain was affected on account of measles settling upon her brain, and because of worry on account of their father’s death. In this we can see no error; it was simply a matter of family history, and besides, we fail to see how it had any probative force against appellant’s contention of undue influence upon deceased or as to whether he had mental capacity to lawfully execute his last will as offered for probate.

Finding no error, the assignments are all overruled, and cause affirmed.
      i&wkey;I<or other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HIGGINS, J.

text:
    TEXAS BANK & TRUST CO. v. KELLY et al.
    (No. 821.)
    (Court of Civil Appeals of Texas. El Paso.
    March 14, 1918.
    Rehearing Denied April 4, 1918.)
    Tendee <&wkey;16(l) — Necessity.
    Where at or about maturity of a note to a hank by husband and wife the wife notified the hank of her desire to pay it, and the bank asserted its intention not to surrender collateral owned by her as her separate property and pledged to secure such note, unless a separate debt of her husband to the bank were also paid, formal tender by the wife of the amount due on her note was not necessary to render the bank liable for conversion upon its sale of the collateral; the asserted intention of the bank being equivalent to a refusal to accept if tendered.
    ' Appeal from El Paso County Court; E. B. McClintoclc, Judge.
    Action by Mattie M. Kelly and another against the Texas Bank & Trust Company. From judgment for plaintiffs, defendant appeals.
    Affirmed.
    Jones, Jones, Hardie & Grambling, of El Paso, for appellant. U. S. Goen, of El Paso, for appellees.
   HIGGINS, J.

Mrs. Kelly for the benefit of her separate estate borrowed $550 from the Texas Bank & Trust Company, appellant. To cover the loan she and her husband executed a note, and to secure its payment she pledged and deposited with the bank certain collateral owned by her as her separate property. The note given contained a clause providing that in the event of its nonpayment at maturity the bank was authorized to sell the collateral and apply the proceeds to the payment of the note. It was further provided that the surplus, if any, after the payment of the note, and any and all other indebtedness due by the undersigned to the bank, was to be paid to the makers. At the time of the execution of this note the husband was indebted to the bank upon an obligation theretofore given. At or about the maturity of her note Mrs. Kelly notified the bank of her desire and willingness to pay same. The bank then notified her that it would not surrender the collateral unless the amount due upon Mr. Kelly’s obligation was also paid, and in effect announced its intention of holding the collateral to secure the payment of Mr. Kelly’s obligation. No formal tender was made by Mrs. Kelly of the amount due upon her note. Thereafter the bank sold the collateral and applied the proceeds to the payment of Mrs. and Mr. Kelly’s note, and of the other obligation of Mr. Kelly.

Mrs. Kelly, joined by her husband, brought ihis suit setting up the facts, and sought judgment for the value of the collateral, less the amount due upon the note which she had given. From an adverse judgment the bank appeals.

Opinion.

Upon the facts stated it appears that the bank asserted its intention of holding the collateral as security for the payment of a debt, for which, under the contract of pledge, it could not be held. The note signed by Mr. and Mrs. Kelly shows that the collateral was pledged for the purpose of securing the payment of that note and no other.

Under these circumstances it was not necessary for Mrs. Kelly to tender the amount due upon her note. The asserted intention of the bank was equivalent to a refusal to accept if tendered, and the pledgee will not be permitted to say that the pledgor should be deprived of any of her rights for taking it at its word. Upon this view- of the ease, the bank had no right to sell the collateral, and became liable to Mrs. Kelly for conversion thereof. 38 Cyc. 134; King v. Bank, 159 S. W. 433, at 438; Bluntzer v. De Wees, 79 Tex. 272, 15 S. W. 29; Hamilton v. McLaughlin, 145 Mass. 20, 12 N. E. 424; Irr. Co. v. Richards, 22 Colo. 450, 45 Pac. 423; Gorham v. Farson, 119 Ill. 425, 10 N. E. 1.

Both the pleadings, and evidence sufficiently support the judgment.

Affirmed.


author: KING, J.

text:
    BURTON et al. v. SELLS.
    (No. 309.)
    (Court of Civil Appeals of Texas. Beaumont.
    Feb. 1, 1918.)
    Appeal and Ereoe <&wkey;1236 — Bond —• Judgment Against Sureties in Appellate Court.
    Where, on motion in Court of Civil Appeals to affirm on certificate, the appeal bond executed with sureties accompanies the certificate, the cause, being affirmed as to the parties, will be also affirmed against the sureties.
    Appeal from District Court, Orange County; W. R. Blackshear, Judge.
    Action between O. W. Burton and others and G. 'M. Sells. Judgment for the latter, and the former appealed. Motion by G. M. Sells to affirm on certificate.
    Affirmed.
    O. R. Sholars, of Orange, for appellants. J. B. Bisland, of Orange, for appellee.
   KING, J.

This case is before us on motion of appellee to affirm on certificate. We have examined the record, as certified by the clerk of the district court of Orange county, and find that appellee’s motion should be granted; and as a copy of the appeal bond executed by O. W. Burton, Sr., and Mary Burton, as principals, and C. Burton and Joe Cooper, as Sureties, accompanies such certificate,! the cause is in all things affirmed as to the parties, and in like manner affirmed against the sureties, C. Burton and Joe Cooper, on said bond.
      <§c»For other cases see same topic and KEY-NUMBER in all. Key-Numbered Digests and Indexes


author: HARPER,-O. J.

text:
    GALVESTON, H. & S. A. RY. CO. v. HILL.
    (No. 818.)
    (Court of Civil Appeals of Texas. El Paso.
    March 21, 1918.
    Rehearing Denied April 11, 1918.)
    1. Trial &wkey;133(6) — Remarks oe Counsel-Cure oe Error.
    In an action for wrongful death, remarks by plaintiffs attorney that the jury should award a substantial verdict, that it did not mean much to defendant but would mean everything to plaintiff, that they should apply the Golden Rule, and that but for defendant’s negligence plaintiff’s intestate would still be running an engine to carry United States soldiers _ to the front, did not constitute reversible error in view of instruction by the court not to consider them.
    2. Death &wkey;99(l) — Damages — Excessive - NESS.
    $20,000 was not excessive damages for the death of a- stout, healthy man 29 years old, who was earning $125 a month, had a life expectancy of 36 years, and was in line for promotion to locomotive engineer.
    3. Appeal and Error &wkey;>1048(l) — Harmless Error — Examination oe Witnesses.
    In an action for wrongful death, questions by plaintiff’s attorney as to why a defendant did not produce parts of the exploded engine held not reversible error.
    Appeal from 'District Court, El Paso County ; P. R. Price, Judge.
    Action by Willie G. Hill, administratrix, against the Galveston, Harrisburg & San Antonio Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Beall, Kemp & Nagle, of El Paso, and Baker, Botts, Parker & Garwood, of Houston, for appellant. Lea, McGrady & Thom-ason, of El Paso, for appellee.
   HARPER,-O. J.

This suit was instituted by appellee, as administratrix of the estate of her deceased husband, against the Galveston, Harrisburg &' San Antonio Railway Company, for damages occasioned by the death of her husband, George W. Hill, seeking recovery for her sole use and benefit; and for cause of action she alleged:

“That while deceased was in the employ of and serving the defendant as locomotive fireman, * * * the engine upon which he was working exploded and blew up, and caused his death. That the explosion and death were proximately caused by the negligence of the defendant, its agents, and employes other than said Hill, consisting of various negligent acts and omissions, moro details of which are unknown to plaintiff than herein stated, although she has used reasonable diligence to discover same — but all of which are within the knowledge of defendant.”

Said negligent acts and omissions, so far as known to plaintiff, are as follows; those submitted by the trial court as a basis of recovery being the only ones necessary or pertinent to the issues here presented. They alone are quoted:

“Said engine on said occasion was unsafe, out of repair, in a defective and dangerous condition, in that many of the radiato-crown and stay bolts in such boiler were broken, worn, old, * * * and insufficient.
“The engineer operating said engine * * * was negligent * * * in failing to test the quantity of water in the boiler with sufficient frequency, by using the gauge cocks, a device for that purpose, thus allowing the water in the boiler to become too low, thereby causing the boiler to become overheated.”

And further alleged that deceased was earning $125 per month and was 29 years of age, and in the line of promotion to higher services, and greater wages.

Defendant answered by general demurrer, by various special exceptions, general denial, assumed risk, and contributory negligence.

Tried to jury, and verdict and judgment rendered for $20,000, from which this appeal.

Appellant’s assignments 1 to 12, inclusive, urge that this cause be reversed and remanded because of the argument of counsel as follows, quoted in their numerical order:

Eirst. “That the jury should give plaintiff a good and substantial verdict in this case; if they gave her all she sued for, it would not be too much; that it might not mean much to defendant, only a few more cars of freight to California, but what might mean very little to defendant meant everything to this woman (meaning plaintiff).”

Second and third. Counsel told the jury that “the Golden Rule was a good rule to go by in arriving at their verdict; and said, ‘What would you want done in this case if he (meaning deceased) was your boy?’ ”

Fourth. “There never was a time when the world was calling for young men as it is now, and, had it not been for the negligence of defendant in furnishing George Hill a defective engine and boiler, he would still be doing his duty to-day, and to-morrow, and would be running an engine to carry United States soldiers to the front.”

The fifth is that a charge to disregard the above could not eradicate its harmful effects.

Sixth. “It might be the fireman’s injector on the engine did not work; that, had it worked, the deceased would have kept a sufficient quantity of water in the boiler, and to say that with the injector working the deceased sat there and allowed the water to get off of the crown street and blow up the boiler would be to say that he committed suicide.” The proposition under this is that there is no evidence that the injectors on the engine were not working. We think there is.

The seventh is substantially the same as the sixth.

Eighth and eleventh. It was argued by counsel that a certain witness was put on the stand simply for the effect it would have upon a certain juror, the fact being that the witness and juror held good .positions with another local railway company. The court charged the jury to disregard the argument.

Ninth. Counsel in argument mentioned certain evidence of defects in the engine not submitted by the court as a ground for recovery. But we think the matters mentioned were so closely related to those submitted as not to have had any evil effect upon the minds of the jury, even if not in fact legitimate matters for argument.

Tenth. Same as above.

Twelfth is that these repeated arguments taken together constitute reversible error; that a charge by the court to disregard could not cure the evil.

We are of the opinion that the remarks complained of, in view of the facts of this ease, were not outside the pale of legitimate argument; but, if they possibly were, the trial court has withdrawn them from the consideration of the jury, and it is rarely ever the case that cases will be reversed where the latter has occurred. Freeman v. McElroy, 126 S. W. 659, and the cases from Supreme Court of Texas there cited.

The thirteenth and fourteenth are that the verdict is excessive, and that the inflammatory argument of counsel contributed to such excess.

The deceased was a stout, healthy man, 29 years old. He was earning $123 per month. Had a life expectancy of 36 years; was in line for promotion to engineer. We do not ' consider the verdict excessive, nor do we feel that the inflammatory remarks of counsel were such -as to call for a reversal. In this connection, we adopt the closing observation in the ease of San Antonio & A. P. Ry. Co. v. Blair, 184 S. W. 569:

“It is true that the size of a verdict itself might conclusively evidence that improper motives actuated and controlled the jury, but can it he said that a verdict of $25,000 (here $20,-000) for the life of a young robust man with all the * * * possibilities ahead of him, * * †- who was earning a fine salary, evidences passion and prejudice on the part of the jury? We think not.”

By another proposition, appellant urges that, with reference to the amount of recovery, this case is controlled by the federal Employers’ Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. 1916, §§ 8657-8665]) and not by the Texas rule. We are of the opinion that the rules are the same. Appellant cites Railway Co. v. Vreeland, 227 U. S. 59, 33 Sup. Ct. 192, 57 L. Ed. 417, Ann. Cas. 1914C, 176.

The fifteenth asserts that it was reversible error for counsel for plaintiff to ask the following questions:

“Q. Did you not bring that bolt here with you (referring to the radial, stay, and. crown bolts of the boiler)? A. No. Q. Why didn’t you? A. I did not think it was necessary. Q. Did you bring any piece of a crown sheet with you? A. No, got it in Houston though. Q. You got it down there? A. Yes, sir. Q. Why didn’t you cut off a little piece and bring it here? A. I didn’t think it was necessary to do that.”

The sixteenth to twentieth, inclusive, arose upon objections to testimony of witnesses and because the court refused special charg-. es, withdrawing same from thé consideration of the jury. This evidence was admissible as circumstantial evidence upon the two phases of the case upon which under the charge the jury could predicate a verdict for plaintiff.

The twenty-first, twenty-second, twenty-third, and twenty-fourth are to the effect that there is no evidence upon which to base a charge or verdict of the jury upon the issues submitted, to wit, defective engine because of weak and broken'bolts, and the defective condition of the injector. In this case it seems clear that this boiler was caused to explode, either on account of defects, or on account of the negligence of the engineer in failing to keep water over the crown sheet of the boiler, or both. At least, there is sufficient evidence to sustain a verdict of the jury upon either phase submitted.

If therefore some of the matters may have been held to be reversible error in certain cases dealing with given facts, they were not so in this case.

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