author: PLY, C. J.

text:
    INTERNATIONAL & G. N. RY. CO. et al. v. ASH.
    (No. 6068.)
    (Court of Civil Appeals of Texas. San Antonio.
    June 12, 1918.
    Rehearing Denied July 1, 1918.)
    1. Appeal and Error <®=3l052(2) — Review— Harmless Error — Evidence.
    In an action for damages to a shipment of live stock that plaintiff was permitted, after an admission that he had been convicted of a felony and sentenced to the penitentiary, to testify that he had been' pardoned and as to other facts was harmless error, where a certified copy of the pardon was subsequently placed in evidence.
    2. Witnesses <®=o78 — Conviction op Crime— Pardon.
    Where a witness has been convicted of a felony and sentenced to the state prison, the proper procedure is to introduce the proclamation of pardon before permitting him to testify.
    3. Appeal and Error <®=^690(1) — Bill op Exceptions — Evidence.
    Where a witness in a civil case was permitted to testify after admitting that he had been convicted of a felony and sentenced to the state prison, and a certified copy of the pardon ivas subsequently placed in evidence, objections to such certified copy will not be considered, where the bill of exceptions only objects to the statement of the witness that he had been pardoned.
    4. Trial ⅞=^60(1) — Order oar Proop — Quali-pication op Witnesses.
    Where a witness has admitted that he has been convicted of a felony and sentenced to the state prison, but subsequently pardoned, it is immaterial whether the pardon is introduced before or after the testimony is received.
    5. Appeal and Error <@^742(4) — Assignments op Error— Statement— Suppiciency.
    An assignment of error, merely complaining that the court permitted a witness to answer a certain question without stating what he answered, not followed by a statement by 'which its propriety and importance can be tested, will not be considered.
    6. Evidence <⅞=>501(7) — Value -op Live Stock — Opinion Evidence.
    In an action for damages to a shipment of cattle, a witness who testified that the cattle had a market value at destination, naming it, was qualified to testify as to the market value, without stating that he had known the same number of cattle as were in the shipment to be sold at such point.
    7. Negligence <⅞=»119(6) — Contributory Negligence — Proop.
    Contributory negligence is a matter of defense which must be pleaded and proved, except where plaintiff in pleading or developing his case pleads or develops contributory negligence.
    8. Appeal and Error <§=j1066 — Review — Harmless Error — Instructions.
    In an action for damages to a shipment of live stock, where there was no evidence showing contributory negligence on the part of the shipper, it was immaterial whether the definition of contributory negligence given in instructions was correct or not.
    9. Negligence <¾='136(26) — Contributory Negligence — Questions oe Law and Fact.
    Contributory negligence does not arise as a matter of law, unless the acts constituting such negligence are in violation of law, or the evidence is of such a character as to permit of but one reasonable inference.
    10. Carriers <§=>228 (1) — Carriage oe Live Stock — Contributory Negligence — Burden oe Proof.
    In a shipper’s action for damages to a shipment of live stock, the burden of proving his contributory negligence was on the carrier.
    Appeal from District Court, Atascosa County; C. C. Thomas, Judge. —
    Action by A. A. Ash against the International & Great Northern Railway Company and others. Prom a judgment for plaintiff, defendants appeal.
    Affirmed.
    Dabney & King, of Houston, and Terrell & Terrell, of San Antonio, for appellants.
   PLY, C. J.

This suit was instituted by ap-pellee against the International & Great Northern Railway Company, Cecil Lyon, and James A. Baker, receivers of the railway company, and the Artesian Belt Railroad Company, for damages alleged to have resulted from injuries to a shipment of cattle from Pt. Worth to Christine, Tex., in October, 1915. It was alleged that 125 head of the cattle died, and the remainder were injured to the extent of $5 a head. The cause was submitted h> a jury by special issues, and upon the answers returned thereto judgment was rendered in favor of the Artesian Belt Railroad Company, and in favor of appellee, against James A. Baker, receiver, in the sum.of $2,190.

The evidence justified the jury in finding that appellee was damaged.in the sum found by them through the negligence of the appellant receiver.

The first, second, and third assignments of error complain of the action of the court in permitting A. A. Ash, after he had admitted that he had been convicted of a felony and sentenced to a two-year term in the penitentiary, to testify that he had been pardoned, but did not have the pardon, and then in permitting him to testify to other facts. The objections are of no practical value whatever, for, however erroneous the admission of the evidence may have been, it was completely cured by afterwards placing a certified copy of the pardon in evidence. The proper way would have been to have in•troduced the proclamation- of pardon, before the witness was permitted to testify, but the error in its admission without the pardon was removed by the after introduction in evidence of the pardon.

The hill -of exceptions, upon which the first three assignments rest,'only objected to the statements of appellee that he had been pardoned, although the court, in giving the bill of exceptions, stated that a certified copy of the pardon had be§n placed in evidence, and no bill was reserved to such certified copy. It follows that no objection to the certified copy of the pardon can be heard in this court. The theory in this court seems to be that a pardon, introduced in evidence after a witness has testified, is of no avail, but that it must be placed in evidence before the witness testifies. The order in which the testimony was introduced is utterly immaterial. No authority to the contrary -has been offered by appellant, for the reason probably that it does not exist.

The fourth assignment of error is not followed by a statement by which its propriety and importance can be tested. There is nothing in the statement to indicate that a bill of exception was reserved to the admission of the evidence, or what the evidence was to which objection was made. The assignment merely complains of the court permitting the witness to answer a certain question, without stating what he answered. The assignment will not he considered.

The fifth assignment of error is overruled. The witness testified that the cattle had a market value at Christine, and named it. The witness testified that there was a market there for the same description of cattle as those involved in the suit. The witness, in order to qualify to testify as to market value, was not compelled to state that he had known the same number of cattle as were in this shipment to be sold in Christine.

The sixth and seventh assignments of error are overruled. Contributory negligence is a matter of defense; and, in order for a party to avail himself of such defense, it must be pleaded and proved. The exception to the rule is where the plaintiff in pleading or developing his case pleads or develops contributory negligence. In every other case there must be pleading and proof. Railway v. Murphy, 46 Tex. 362, 26 Am. Rep. 272; Railway v. Cowser, 57 Tex. 302; Railway v. Watson, 72 Tex. 633, 10 S. W. 731; Railway v. Bennett, 76 Tex. 155, 13 S. W. 319; Railway v. Johnson, 90 Tex. 304, 38 S. W. 520; Oil Co. v. Jarrard, 91 Tex. 290, 42 S. W. 959. In this case it was alleged that appellee was guilty of contributory negligence in not feeding and watering the cattle just before they were loaded and just after they were unloaded at Christine, but there was no evidence tending to show that the cattle were not fed just before they were brought to the shipping pens at Ft. Worth, but the uncontradicted evidence showed that they were fed and watered. The cattle were not fed and watered at Christine, hut not only did appellant fail to show that there were facilities for feeding and watering at Christine, but appellee showed that there were no such facilities. In other words, the evidence utterly failed to show contributory negligence as alleged. The cattle were received by the agent of appellee at the solicitation of the agent of appellants. The latter made no effort to show that water and food for the cattle could have been obtained in Christine, and the evidence of the agent as to a lack of facilities for feeding and watering at Christine, or at any other point until the ranch was reached, was uncontradicted. Appellants failed to show any contributory negligence on the part of appellee, and the evidence was ample to show that the cattle were injured and a number caused to die by the wounds inflicted on them through rough handling and delay on the part of appellant.

There being no evidence tending to show contributory negligence on the part of appellee, it does not matter whether the definition of contributory negligence was correct or not. A correct definition could not have supplied the necessary testimony. There were no facilities for feeding and watering in the railroad cattle pens at Christine, and no effort was made by appellants to show that water and food could have been obtained at Christine, although that burden rested on appellants.

It may be well to note that, in the cases in which charges as to contributory negligence made it incumbent to show that such negligence was the proximate cause of the accidents, the evidence showed that if the act was negligent it was necessarily the proximate cause of the accident. The cases of Railway v. Rowland, 90 Tex. 365, 38 S. W. 756, Railway v. McCoy, 90 Tex. 264, 38 S. W. 36, and Culpepper v. Railway, 90 Tex. 634, 40 S. W. 386, all refer to cases in which, if the acts ascribed to the plaintiffs were negligent, they necessarily produced the accident. The same is true of the cases of Ebert v. Railway, 49 S. W. 1105, Railway v. Bryant, 30 Tex. Civ. App. 4, 66 S. W. 808, Railway v. Vizard, 39 Tex. Civ. App. 534, 88 S. W. 457, and Railway v. Harrell, 194 S. W. 971. In most of the cases the plaintiff got off or on a moving car or went on a crossing in front of a moving train; in other words, doing a thing in which', if it was contributory negligence, the question of proximate cause could not arise. No such case is presented by the facts of this case.

It follows from the foregoing conclusions that the eighth, ninth, and tenth assignments, which are based on the assumption, that the failure to water and feed the cattle at Pt. Worth and Christine was contributory negligence as a matter of law, and not a question of fact for a jury, cannot be sustained. It is the rule in Texas that contributory negligence does not arise as a matter of law unless the acts constituting such negligence are in violation of law, or the evidence is of such character as to permit of but one reasonable inference or conclusion, and that the negligence of the plaintiff. In the language of the Supreme Court:

“Negligence, whether of the plaintiff or defendant, is generally a question of fact, and becomes a question of law to be decided by the court only when the act done is in violation of some law, or when the facts are undisputed and admit of but one inference regarding the care of the party in doing the act in question; in other words, to authorize the court to take the question from the jury, the evidence must be of such character that there is no room for ordinary minds .to differ as to the conclusion to be drawn from it.” Lee v. Railway, 89 Tex. 583, 36 S. W. 63.

Appellants made no effort to show that water could have been obtained for the cattle in Christine; and, while appellee proved that at least a part of the cattle obtained water on the day they were unloaded, and that was not disproved, appellants did not attempt to show how many were not watered. Appellants proceed on the theory that appelleee not only had to prove their negligence, but also to disprove their allegation of contributory negligence. The burden was on appellants to establish their defense of contributory negligence. The evidence of ap-pellee did not tend to establish such negligence, but, on the other hand, showed that there was no contributory negligence. The cattle were shown to have died from injuries inflicted by appellants.

The judgment is affirmed.
      <S=oFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      ®=>For other cases'see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: MOURSTJND, J.

license: Public Domain

text:
    MORGAN v. COLEMAN et al.
    (No. 6061.)
    (Court of Civil Appeals of Texas. San Antonio.
    June 12, 1918.
    Rehearing Denied July 1, 1918.)
    1. CONSTITUTIONAL LAW <&wkey;80 (3)—DELEGA-TION of Judicial Powers—Judgment.
    Rev. St. 1911, § 7107, authorizing sheriff to judge of reasonable amount of damage to property if damaged while in possession under re-plevin bond, is void as undertaking to invest the sheriff with judicial power.
    2. Sequestration <&wkey;20—Damages to Property-Right to Judgment.
    Where petition in sequestration showed that the property taken by defendant under replevin bond was not surrendered, plaintiff had a valid judgment against the surety for the amount of the debt, but no cause of action to recover for loss or injury to the property, although the sheriff may have levied upon such property as he could find.
    3. Sequestration <&wkey;15—Replevin Bond— Effect.
    The giving of replevy bond in sequestration proceedings and the rendition of judgment against the sureties thereon does not pass the title to the property to the defendant, or destroy plaintiff’s right to .subject the same to the payment of his debt.
    4. Sequestration <&wkey;20—Replevin Bond-Effect.
    Where in sequestration proceedings the sheriff subjects part of the property covered by the replevin bond to the debt, the sureties on the replevin bond are not thereby released from the remainder of the judgment.

      Error from Bexar County Court for Civil Cases; John H. Clark, Judge.
    Suit by W. M. Morgan against P. S. Coleman and others to review the judgment rendered. Plaintiff brings error.
    Affirmed.
    Lewright & Douglas, of San Antonio, for plaintiff in error. Guinn & McNeill, of San Antonio, for defendants in error.
   MOURSTJND, J.

This is a suit by W. M. Morgan against Prank S. Coleman, Prances M. Peck Coleman, Lloyd Caldwell, and A. G. Startz, in which a general demurrer and an exception urging res adjudicata were sustained, and, plaintiff declining to amend, the suit was dismissed. Plaintiff alleged that he had sued Mrs. Coleman, at that time a feme sole named P. M. Peck, in the district court of Bexar county upon a note for $3,000 and for foreclosure of a vendor’s lien upon certain personal property; that he had applied for and obtained a writ of sequestration which' was executed by the sheriff of Bexar county, by taking into his possession said personal property; that within the time prescribed by law the defendant in said suit replevied said property by delivering to the sheriff a bond for $4,000, signed by her and by said Lloyd Caldwell and A. G. Startz as sureties, conditioned that she would not remove the property out of Bexar county, and ‘would not injure, illtreat, or destroy the same, and that she would have said property, with the value of the fruits, hire, or revenue thereof, forthcoming to abide the decision of said district court, or should pay the value thereof, and of the fruits, hire, or revenue of same, in case she should be condemned so to do. Plaintiff further alleged that said case was tried, and a decree entered substantially as follows:

“That plaintiff, W. M. Morgan, should have and recover of and from the defendant P. M. Peck the sum of $2,522.47, with interest thereon at the rate of 8 per cent, per annum from the 14th day of June, 1912, until paid, and all costs of suit, together with a foreclosure of his lien upon the personal property in said judgment described; that, if said personal property could not be had, plaintiff, W. M. Morgan, recover jointly and severally of and from the defendant P. M. Peck and Lloyd Caldwell and A. G. Startz, sureties on her replevin bond, the said sum awarded to plaintiff; that, if said property had been damaged or injured while in possession under such replevin bond, then plaintiff, W. M. Morgan, recover of said defendant P. M. Peek and her sureties aforesaid the reasonable amount of such injury or damage as such property may have sustained, to be judged of by the sheriff or constable.”

He alleged further that afterwards execution and order of sale was issued upon said judgment, levied upon said personal property, and sale made for $1,025, which sum, less the amount of $106.75, deducted for costs, was credited on said judgment; that in compliance with the provision of said decree and article 7108, Revised Statutes, said officer fixed and assessed the damage and loss of furniture between the time of re-plevy and sale at $212.50, divided by said officer as follows: Damage to rugs, $45; damage to carpets, $27.50; loss and damage to furniture, $140; that by reason of the recitals in the replevin bond and those in the final decree the defendants • became obligated and bound to pay him the reasonable amount of the injury or damage sustained by the property while it remained in possession of Mrs. Peck, which was $212.50, and which damage had been fixed by the proper officer at said amount.

The judgment pleaded was evidently attempted to be drawn under the provisions of our sequestration statutes, but it is undoubtedly true, as contended by plaintiff in error, that the latter portion thereof undertakes to invest the sheriff with judicial power, and is void. Dupree v. State, 102 Tex. 455-471, 119 S. W. 301. That part of the judgment was apparently prompted by article 7107, relating to return of property by a defendant who has replevied the same. The right to surrender the property, provided the party suWendering same complies with the statute, is not dependent on being mentioned in the judgment, but may be exercised by virtue of the statute. Mills v. Hackett, 65 Tex. 580; Coward v. Sutfin, 185 S. W. 378. The remainder of the judgment awards plaintiff a recovery upon the replevin bond, not merely of the value of the property, as required by statute, but .of the entire debt due plaintiff, but it is further alleged, in effect, that such judgment exists if the property cannot be had. By this was evidently meant that if the property was not surrendered as provided by article 7107, the sureties would be bound to pay the entire sum due plaintiff. As stated by plaintiff in error, the petition negatives the idea that the property was surrendered by the defendant, and it therefore discloses that plaintiff has a valid judgment against the sureties for the amount of the debt. This bejng the case plaintiff shows no cause of action to recover for loss or injury to the property, and the petition was subject to general demurrer. This is not negatived by the fact that the sheriff levied upon such property as he could find and subjected it to the debt. The giving of the replevy bond and the rendition of judgment against the sureties thereon does not pass the title to the property to the defendant, or destroy plaintiff's right to subject the same to the payment of his debt. Van Velzer v. Stryker, 188 S. W. 723, and cases therein cited. The defendant and the sureties received the benefit of the property found and subjected to the debt, but that would not release the remainder of the judgment against the sureties.

The same facts pleaded which show that the exception urging res adjudicata is good show that the petition is subject to general demurrer. It is therefore impossible to separate the two questions, and we will not attempt to do so.

The judgment is affirmed.
      <®^jFor other eases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes


author: WILLSON, O. J.

text:
    HAYS v. MORRIS.
    (No. 2002.)
    (Court of Civil Appeals of Texas. Texarkana.
    June 20, 1918.)
    1. Vendos and Purchases 3s=j228(7) — Deed Absolute in Form — Rights oe Purchasers —Notice,.
    One who purchased with knowledge that a deed absolute in form to his grantor was in fact intended as security for a debt occupied no better position than his grantor, and acquired no title to the land.
    2. Adverse Possession <®=>84 — Innocent Purchaser.
    In action to try title, the issue being whether defendant was an innocent purchaser, or took with notice that a deed to his grantor was in fact a mortgage, where the jury found that he took with notice, and also that he had held by limitations for the required time, it was error to give effect to the latter finding, since limitations are of no avail to a purchaser with notice.
    8. Trespass to Try Title <⅞^>47(1) — Rights oe True Owner — Rental Value.
    Where defendant purchased with notice that a deed to his grantor was a mortgage,, the true owner, in suit to try title, could recover the rental value of the land during the period in which defendant occupied it, less payments made by defendant to the mortgagee.
    Appeal from District Court, Bowie County; I-I. F. O’Neal, Judge.
    Action by Mrs. Ophelia Hays against T. C. Morris. Judgment for defendant, and plain-' tiff appeals.
    Reversed and rendered.
    The suit was by appellant against appellee to try the title to 42 acres of the John Kit-trell survey and for damages. The petition contained only the averments usually made by the plaintiff in a statutory action of trespass to try title. In his answer appellee alleged that he had “had and held peaceable, continuous, and adverse possession under title from and under the state of Texas and from the plaintiff herein of the lands and 'tenements claimed in said plaintiff’s petition for more than three years after plaintiff’s cause of action accrued and before the commencement of this suit.” In a supplemental petition appellant denied that appellee was in possession of the land by virtue of a deed from her, and alleged the facts to be that by an instrument in form a deed she conveyed the land to Mrs. Mollie Woodle to secure a debt of $200 she owed Mrs. Woodle, and that appellee, “being notified that the said deed to the said Mrs. Mollie Woodle was intended as a mortgage, attempted to purchase the land in controversy from said Mrs. Mollie Woodle, and that the said Mrs. Mollie Woodle made to the defendant, T. C. Morris, the deed under which he claims.”
    It appeared from the testimony that appel-
    lant conveyed the land to Mrs. Mollie Woodle by a deed absolute on its face, dated October 21, 1909, and that Mrs. Woodle conveyed it to appellee by a deed dated October 14, 1911. In response to special issue submitted to them the jury found: (1) That the deed from appellant to Mrs. Woodle was intended as security for the payment of a debt the former owed the latter; (2) that appellee knew at the time Mrs. Woodle conveyed the land to him that the deed to her from appellant was intended by the parties thereto to operate as mere security for appellant’s indebtedness to Mrs. Woodle; (3) that appellee “had peaceable and adverse possession of the land” under a deed to him made by Mrs. Woodle October 14, 1911, “planting and growing crops thereon for a period of three years preceding the filing of this suit, which was on November 25,1914” ; (4) that the reasonable rental value of the land was $8 per acre; (5) that appellee paid Mrs. Woodle $250 for the land. A motion by appellant that the court render judgment for her on the findings made by the jury was overruled, and-the motion of appellee that judgment be rendered for him on said findings was sustained. The appeal is from a judgment that appellant take nothing by her suit, and that appellee “be granted [quieted?] in his title and possession of the land in this suit,” describing same by metes and bounds.
    Wheeler & Wheeler, of Texarkana, for appellant. Mahaffey, Keeney &>Dalby, of Tex-arkana, and J. B. Manning, of New Boston, for appellee.
   WILLSON, O. J.

(after stating the facts as above).

It is insisted that the trial court' erred when he overruled appellant’s motion to render judgment in her favor on findings made by the jury. We agree he did, and therefore sustain the contention. Admittedly the title to the land was in appellant at the time she conveyed it to Mrs. Woodle. The findings of the jury (1) that the conveyance to Mrs. Woodle was intended to operate merely as security for a debt appellant owed her, and (2) that appellee knew it when he bought the land, required the rendition of a judgment in appellant’s favor for the land, unless the effect of the finding in ap-pellee’s favor on the issue of limitation required judgment to be rendered for him; for the legal effect of the conveyance to Mrs. Woodle, according to the findings, was to make her a mere mortgagee, and not the owner, of the land; and appellee, buying of her with notice that she had no estate in or title to it, occupied no better position with reference to the land than she did. McLemore v. Bickerstaff, 179 S. W. 536. The question therefore is:' Should the court have given effect to the finding in appellee’s favor on the issue of limitation and have rendered judgment for him as he did? It is clear enough in the light of the authorities that the question should be answered in the negative. Angel v. Simmonds, 7 Tex. Civ. App. 331, 26 S. W. 910; Stafford v. Stafford, 71 S. W. 9S4; Barbee v. Spivey, 32 S. W. 345; Snowden v. Bush, 69 Tex. 593, 6 S. W. 767; Massie v. Meeks, 28 S. W. 44; Garner v. Black, 95 Tex. 125, 65 S. W. 876. The case first cited above seems to be in point. There it appeared that Simmonds owned land in 1882 when he cofiveyed it to one Wood by an instrument in form a deed, but intended to operate as a mortgage to secure a debt Simmonds owed Wood. In 1884. Wood conveyed the land to Tate, who in 1885 conveyed it to Angel. Tate and Angel at the times, respectively, they bought, had notice of the fact that the deed to Wood was intended as a mortgage. With reference to a complaint made by Angel of the failure of the court to submit to the jury an issue he claimed the evidence made as to title in him by virtue of the statute of limitations, the court said:

“The evidence was conflicting as to whether the defendant Angel held continuous possession, for three years prior to the institution of the suit of the land in controversy, but we are of opinion that the court did not err in failing to charge on defendant’s plea of ⅝ * ⅜ limitations of three years. Having submitted the issue of absolute deed or mortgage and that of innocent purchaser, the court was not called upon to charge with reference to the issue of limitation. As appellee suggests, if the instrument executed by Simmonds to Wood was an absolute deed, title thereby passed to the defendant. If, on the other hand, it was a mortgage, and appellant knew that fact, it would not support the plea of three-year limitation, because then there would be a ‘want of intrinsic fairness and honesty in the transaction.’ ”

Tbe land was conveyed by Mrs. Woodle to appellee October 14, 1911. He testified be took possession of it and began to improve and cultivate it “right straight after be got tbe deed to it.” His possession and use of tbe land continued to the date of tbe trial, to wit, October 21, 1917, a period of over six years. Tbe jury found that the annual rental value of tbe 42 acres was $126, or $3 per acre. So the rental value of the land for tbe six years appellee used it was $756. In her motion appellant asked for judgment for that amount less $250 appellee paid Mrs. Woodle for the land, which appellant requested tbe court to allow appellee and deduct from tbe $756 representing tbe rental value of tbe land to the date of tbe trial. Had the rental value of the land as it accrued annually been applied to tbe payment of tbe $250 and interest thereon, there would have been a balance of $481.30 left at tbe time of the trial of tbe $756 representing tbe rental value for tbe six years appellee bad tbe use of tbe land.

On the case as stated we think tbe judgment should have been in appellant’s favor for tbe land and for damages in tbe sum of $481.30. Therefore the judgment of that court will be reversed, and judgment will be here rendered in appellant’s favor as indicated.
      <g^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: JENKINS, J.

text:
    HUME v. BOGLE.
    (No. 5871.)
    (Court of Civil Appeals of Texas. Austin.
    March 6, 1918.
    Rehearing Denied May 22, 1918.)
    1. Specific Performance <§=>81 — Unexecut-ed Contracts.
    If a contract, because material terms were left for future adjustment, was uncompleted, it was in law no contract at all, and could not be specifically enforced.
    2. Specific Performance <§=>31 — Land Con-XEAC.TS — Material Parts.
    The rate of interest and time of payment are material parts of contract to convey land, so that, where such items are left to future adjustment, the contract is not completed, so as to be specifically enforced.
    3. Contracts <§=>47 — Bight to Commission —Making of Contract — Consiberation.
    The breach of the principal’s oral promise without consideration to the broker to complete a contract whereby broker lost commissions from other contracting party did not entitle the broker to damages.
    4. Contracts <§=>81 — Bight to Commission-Making of Contract — Consideration.
    Where broker without principal’s knowledge acted for the other party, her waiver of commission, if the principal would make a certain contract, was no consideration for his promise to make it, since she was not entitled to any commission from the principal.
    5. Brokers <§=>40 — Bight to Commission — Making of Contract — Consideration.
    Where the principal, ignorant of fact that broker was acting for other party, refused to complete deal, but on broker’s promise to look to other for commission agreed to make the contract, whatever the broker thereafter did was as the agent for the other, and not for the principal.
    6. Brokers <§=>45 — Bight to Commission —Making of Contract — Consideration.
    Where broker was entitled to commission, only when she had found an exchange to which the principal could and did agree, the principal owed her nothing, where she renounced her claim and agreed to look to the other party at a time when no agreement had been reached.
    7. Specific Performance <§=>17 — Bight to Bemedy — Interest in Contract.
    A broker has no such interest in a written contract between the principals as would entitle her to specific performance, even assuming that one principal was entitled to that remedy.
    Appeal from District Court, Travis County; Geo. Calhoun, Judge.
    Action by Mrs. Fannie Bogle against J. W, Hume. Judgment for plaintiff, and defendant appeals.
    Beversed and rendered.
    Lyndsay D. Hawkins, of Austin, for appellant. Brooks, Hart & Woodward, of Austin, for appellee.
   Findings of Fact.

JENKINS, J.

Appellee is a real estate broker in tbe city of Austin.

Appellant owned property in tbe city of Austin, tbe major portion of which was bis homestead. He was desirous of exchanging the same for a farm in. Travis county, being willing to pay the difference, if any, in money or notes. With this understanding he placed his property in the hands of appellee, agreeing to pay her 2½ per cent, commission on the value of his property in the event she found a farm that suited him, and at a price which he was willing to pay. He valued his property at $12,000.

Appellee showed appellant a farm belonging to T. M. Scott, with which appellant expressed himself as pleased. He met Scott in appel-lee’s office to discuss the terms of a trade. Scott asked $25,00/) for his farm, and expressed a willingness to take appellant’s property at $12,000. Appellee’s son, in the presence of all parties, drew the following written contract:

“Austin, Texas, April 25, 1016. •
“Contract and agreement entered into this day between T. M. Scott and ,T. W. Hume, both of Travis county, Texas: Whereas, Mr. Hume agrees to buy from Mr. Scott and wife their farm of 245.80 acres located about 7 miles east of Austin and now lived on by Mr. Scott and wife for a consideration of $25,000.00, to be paid for as follows: Mr. Scott agrees to take Mr. Hume’s place, 411 West 33d St., including rent house in rear-, this city, for $12,000.00 as first pay, and make Mr. Scott vendor’s lien notes for $9,000.00, rate of interest to be 7 per cent., the dates of payment to be agreed upon, also the rate of interest will also be agreed upon later, and Mr. Hume agrees to assume one $1,000 note, 6 per cent., due Dec. 1, 1916, and one $1,006 note, 6 per cent., due Dec. 1, 1917, and a $2,000, 8 per cent., due Dec. 1, 1918, Mr. Scott paying interest up to date of this contract on these notes.
“Mr. Scott agrees to give in Consideration of this trade 25 head of hogs, farm implements, chickens and turkeys.
“Both parties agree to furnish the other abstracts of title within 30 days from date, abstracts to be down to date and made by Daniel Gracy Abstract Company of this city.
"Possession of both places is to be given 60 days from date of this contract.
“Witness our hands this 25 day of April, 1916.”

Appellant refused to sign this contract, and left the room. Appellee followed him into the hall and said:

“Mr. Hume, you know you like this place; you have looked all ovex; the countx-y, according to what you tell mo yourself, and if you like the place, why would you let a small diffei-ence between you all interfere.”

Appellant replied that he was not willing to pay more than $24,000 for the Scott farm. Appellee informed appellant that she expected a commission from Scott, and that, if- he would consummate the deal, she would waive the payment of commission by him. He agreed to do so, provided Scott would put in certain stock -mentioned in the contract. Ap-pellee returned to her office and discussed the matter with Scott, after which she returned to the hall and informed appellant that Scott would put the stock in the deal as suggested by appellant. Thereupon appellant returned to the office, and both he and Scott signed the contract above set out. Appellant did not know, until So informed by appellee in their conversation in the hall, that she represented Scott, or expected any commission from him.

The note for $2,000 mentioned in the contract as being due “Dec. 1,1918,” was in fact due December 21, 1919, and was secured by a vendor’s lien on the Scott farm.

Opinion.

This is a suit to recover damages for the breach of a verbal contract with appellant that he would carry into effect. the written contract with Scott set out in the findings of fact supra. Appellee alleged that, had appellant complied with said written contract, she would have been entitled to receive from Scott $950 as commissions on the sale of his land, which she lost by reason of appellant’s failure to comply with the terms of said written contract.

Upon the threshold of the case the issue arises: Was there, as a matter of law, any contract between appellant and Scott? If not, appellant is not liable in damages to any one for the breach of the alleged contract.

If the contract, by reason of the material terms thereof being left for future adjustment, was not a completed contract, it was, in law, no contract at all, and could not have been specifically enforced by Scott. Where material terms of a contract are not agreed to, the contract is not completed, and courts will not make contracts for parties by supplying such terms. The rate of interest and the time of payment are material parts of a contract to convey land. 3 Elliott on Contracts, §§ 2292 and 2294. In the instant case the alleged contract is contradictory upon its face as to the rate of interest to be paid on $9,000, for which appellant was to execute his notes, the contract reciting that the rate was to be 7 per cent, and also that “the rate will be agreed upon later.” There is no pretense that the written instrument fixed the date when the deferred payments should be made. It expressly states that such date is left open for future negotiation.

But, aside from the fact that the instrument referred to does not amount to a contract,on the part of appellant to convey his land, neither the allegations of appel-lee’s petition nor the evidence show any valid consideration for the verbal agreement which appellant made with appellee to comply with the terms of the alleged contract with Scott. Waiving her right to demand commission from appellant was not such consideration, for each of two reasons:

First, up to the time of such verbal agreement she was acting in a dual capacity as agent for both appellant and Scott, without the knowledge or consent of appellant. For this reason she was not then entitled to any commission from appellant for .anything she had done in his behalf. Evans v. Rockett, 32 Super. Ct. (Pa.) 365 ; Mitchell v. Schreiner, 43 Super. Ct. (Pa.) 633. Appellant did not waive such dual agency. On the contrary, appellee renounced the same, and agreed to look to Scott for her compensation. What she did thereafter was as the agent of Scott, and not of appellant. Keitt v. Gresham, 174 S. W. 884.

In the second place, under her origina) contract with appellant, she was not entitled to any commission from him unless she found some one with whom he could and did agree as to an exchange of property. No such agreement had been reached at the time she voluntarily renounced her claim for compensation from appellant, and consequently he at that time owed her nothing.

Appellee has no such interest in the written contract between appellant and Scott as would entitle her to specific performance, even if Scott was entitled to such remedy. The alleged contract with Scott is not one which a court would specifically enforce in his behalf. There was no valid consideration for the verbal contract between appellant and appellee.

Holding, as we do, the views expressed in thisi opinion, it is unnecessary for us to pass upon other points raised by appellant’s assignments of error.

For the reasons stated, the judgment of the trial court is reversed, and judgment is here rendered that appellee take nothing by her suit, and that appellant go hence without date and recover his costs in the lower court, as well as upon this appeal.

Reversed and rendered.
      <§=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: TALBOT, J.

text:
    FEARIS v. GAFFORD, Co. Atty., et al.
    (No. 7600.)
    (Court of Civil Appeals of Texas. Dallas.
    June 29, 1918.)
    1. Cotjbts <&wkey;91(l) — Supreme Court — Binding Eeeeot on Court ojp Civil Appeals.
    Decision of the Supreme Court as to constitutionality of statute is binding upon Court of Civil Appeals.
    2. Injunction &wkey;>105(2) — Right to Remedy
    —Threats to Prosecute.
    A pool hall owner was entitled to injunction restraining county attorney and sheriff from interfering with his business on showing damage by their threats to prosecute him under void law as to pool halls, which prosecution would probably result in destruction of his business.
    Appeal from District Court, Grayson County ; W. M. Peck, Judge.
    Suit by Dave Fearis against B. F. Gafford, as County Attorney of Grayson County, and others. Decree for defendants, and plaintiff appeals.
    Reversed, and injunction granted.
    Jones & Hassell, of Sherman, for appellant. Gafford & Cummins, of Sherman, for appellees.
   TALBOT, J.

The judgment in this ease, at a former term of this court, was reversed and the cause remanded to the district court with instructions that the writ of injunction as prayed for be granted. Later we set aside our judgment reversing and remanding the cause for the reason that we were in doubt as to the correctness of our holding that appellant, under the facts alleged, could invoke the aid of a court of equity for the relief sought. This question was then before the Supreme Court for decision, and we have not sooner passed upon it ourselves because we have been hoping, since it is contended that no decided ease in this state is applicable, for a decision of the question by our court of last resort.

The suit was instituted by appellant to restrain by injunction the appellees, B. F. Gaf-ford, county attorney of Grayson county, H. H. 'Cummins, assistant county attorney of said county, and Lee Simmons, sheriff of said county, from interfering with appellant in the conduct and operation of a pool hall in the city of Sherman. The injunction' was refused, and appellant appealed.

The petition alleges, in substance, that appellant was the owner of a pool hall, pool tables, pool and billiard balls, billiard cues, racks, chairs, etc., located in the Caruthers building in the city of Sherman, Grayson, county, Tex., and who was conducting the same in a lawful manner under license and privilege of the state of Texas, the county of Grayson and city of Sherman, and that while so conducting the same defendants and each of them entered upon his premises and without lawful authority directed and compelled him to close his place of business, threatening him with prosecution and driving his customers away, to his serious damage and to' the destruction of his' property and property rights. In refusing appellant the relief sought, the following order was made:

“Court in session this 18th day of October, 1915, and came on to be considered plaintiff’s petition for injunction herein, and the court having considered the same, and it appearing that an election heretofore held in said county, the result of which has been duly considered and declared by the commissioners’ court and county judge of said county, the operation of pool rooms was prohibited in said county, said application is refused, and plaintiff excepts and gives notice of appeal to the Court of Civil Appeals, Fifth Supreme Judicial District of Texas.”

The propositions contended for by appellant are, substantially: (1) That the act of the Thirty-Third Legislature, articles 6319a to 6319n, inclusive, Vernon’s Say les’ Civil Statutes, which authorizes the qualified voters of any county or political subdivision thereof in this state to determine, by an election to be held for that' purpose, whether or not pool rooms or pool halls shall be prohibited in such county or subdivision, and providing a penalty for violation of the provisions of said act if the result of the election be in favor of their prohibition, is unconstitutional and void, because “it is a delegation by the Legislature of its own legislative power imposed upon it by the Oonstitution, which it alone must exercise, and which it may not commit to any other agency.” (2) Because it authorizes the suspension of a general law of the state by the voters of a county or subdivision of a county, namely, the statute licensing the operation of pool halls generally within the state, in violation of article 1, § 28, of the Oonstitution, which is: “No power of suspending laws in this state shall be exercised, except by the Legislature.” (3) That the allegations in appellant’s petition show that, unless the writ of injunction prayed for is granted, the acts charged to have been done by appellees and threatened to be done by them will result in an invasion of his property rights and in repeated criminal prosecutions to his irreparable injury, and therefore it is within the jurisdiction and authority of the district court, under the Constitution and laws of this state, to issue said writ.

This court was called upon, in the case of Roper & Gilley v. Lumpkins, 103 S. W. 110, to pass on and determine the constitutionality of the act here in question, and we there held that said act was not in any particular, unconstitutional. In support of such conclusion, speakinfej through Mr. Justice Rasbury, we said:

“The act passed the Senate and House by the required majorities, and was approved by the Governor. It does not by its terms confer upon the electorate any legislative power. It provides 'that the commissioners’ court may, in the exercise of its judgment, and shall, upon demand of a given number of voters, order an, election for the purpose of prohibiting the operation of pool rooms. It does not provide that the people shall say by their votes' whether or not they desire the Legislature to pass an act conferring upon them the right contained in the 'act. The Legislature has presented such an act, complete and finished in every detail. The act does not permit the electorate to say by their votes whether they approve or disapprove the right conferred. They had’ and were given no voice in that matter except by virtue of any representation they had in the Legislature. The right to prohibit the operation of pool rooms is clearly conferred by the act itself, and the only step necessary to he taken by the people in order to secure the benefits of the act in the political subdivisions named is for the officials charged therein with such duty to order an election. Hence it can be safely said that the act in no respect attempts to confer upon the electorate the lawmaking power of the Legislature. Every detail of the act is complete, and the people may in'no respect add to or take from its provisions, but are merely given the right to vote upon whether- the law, as passed, shall be put in operation in tbe subdivisions named. The act, in onr opinion, is dissimilar to the law construed in State v. Swisher, 17 Tex. 441, where the law was held to he unconstitutional, on the ground that it left to the voters the determination of whether • or not licenses should be issued to liquor dealers. Justice Lipscomb, in writing the opinion, said the principal objection to the act was that it was referred to the voters for ratification before it became a law. The law under discussion is not subject to that objection, since tbe right to prohibit the business is complete by the act itself, and. there is only left to the determination of the people whether they will exercise the power conferred. The vesting ' of such discretion in the people is held not to be a delegation of the laVmaking power, for the reason that the discretion imposed involves the exercise of the power as distinguished from its creation. Johnson v. Martin, 75 Tex. 33, 12 S. W. 321.
“But it is urged, in effect, that the act is null and void, for the reason that it is repugnant to the Constitution, since that instrument does not, in express terms, permit the Legislature to confer upon the electorate the right, power; or discretion contained in the act. For the reason stated, we are of opinion that the act under discussion is a complete affirmative law, and only lodges with the voters a discretion relating to the exercise of its powers; at the same time it may not be said that the Legislature is without authority to grant to the several political subdivisions of the state only such powers as are expressly granted by the Constitution, since it has been said by onr Supreme Court that: ‘Except in the particulars wherein it is restrained by the Constitution of the United States, the legislative department may exercise all legislative power which is not forbidden, expressly or by implication, by the provisions of the Constitution, of the State.’ Brown v. City of Galveston, 97 Tex. 1, 75 S. W. 488.”

We have thus quoted, at length from the opinion delivered by -this court in Roper & Gilley v. Lumpkins, supra, for the reason that the language there used very fully and accurately expresses the views which we then entertained and now entertain npon the subject. We may add, however, that in San Antonio v. Jones, 28 Tex. 32, Chief Justice Moore said:

“The Legislature may grant authority as well as give commands, and acts done under its authority are as valid as if done in obedience to its commands. Nor is a statute, whose complete execution and application to the subject-matter is, by its provisions, made to depend on the assent of some other body, a delegation of legislative power.”

Tbe views expressed by the Court of Criminal Appeals of this state, Mr. Justice Davidson dissenting, in the cases of Ex parte Francis, 72 Tex. Cr. R. 304, 165 S. W. 147, and Ex parte Mode, ISO S. W. 708, are practically in accord with the views of this court, as stated in Roper & Gilley’s Case, that the act under consideration is constitutional, and that court cited in support of such views well-considered cases not only of this state, but from many other states. Our Supreme Court, however, granted a writ of error in the case of Roper & Gilley v. Lumpkins, supra, and after the decision of the Court of Criminal Appeals in Ex parte Francis, and before the opinion in Ex parte Mode was handed down, decided in Ex parte Mitchell, 177 S. W. 953, Mr. Justice I-Iawkins dissenting, that said act of the Legislature was for the reasons now urged by appellant in this case unconstitutional, “that the Legislature cannot delegate its authority to make laws by submitting the question of their enactment to the popular vote,” and that no power to suspend laws shall be exercised except by the Legislature, are propositions clearly established by the law and decisions of this state, but it is tbe opinion of this court that the Legislature has not, by the passage of the act known as the “pool hall” statute, thereby delegated its power to enact a law or suspend a law of this state. Since the change in personnel of the Court of Criminal Appeals, Judge Harper retiring, that court, ⅛ the case of State v. Lyle, 193 S. W. 680, Judge Prendergast dissenting, overruled the cases of Ex parte Francis and Ex parte Mode, supra, and held as did the Supreme Court in Ex parte Mitchell, that the act was unconstitutional, and those courts are now in harmony upon the question.

Notwithstanding our great respect for the ability of the members of those courts, we still regard the act in question, as heretofore said, to be one “complete and finished in every detail” and constitutional; that it is only necessary for the people to pursue the course pointed out by its provisions in order to put the law in operation and avail themselves of its benefits. The decision, however, of the Supreme Court in Ex parte Mitchell, is binding upon this court and must be followed.

That the appellant is entitled, under the allegations of his petition, to restrain its enforcement by .the writ of injunction, is affirmed by the decision of this court in Roper & Gilley v. Lumpkins, supra, and cases therein cited. To these cases may be added City of Austin v. Cemetery Ass’n, 87 Tex. 330, 28 S. W. 528, 47 Am. St. Rep. 114; and Brown Cracker & Candy Co. v. City of Dallas. In the case of Brown Cracker & Candy Co. v. City of Dallas, 104 Tex. 290, 137 S. W. 342, Ann. Cas. 1914B, 504, the question was not discussed, but involved, and the decision of the Supreme Court necessarily includes the holding that, under the petitioners’ allegations to the effect that the enforcement of the penal ordinance there under consideration would greatly depreciate the value of their real property and result in damage to their business, they were entitled to restrain its enforcement by injunction. In the case of City of Austin v. Cemetery Ass’n, supra, the Supreme Court’s holding is fairly stated in the following language found in the syllabus:

“Where the record shows the right and privilege of using its property by a cemetery company for cemetery purposes was destroyed or impaired by virtue of the existence of a city ordinance, an injunction will lie, although the ordinance is void and the city was not proceeding to enforce it, and that a legal remedy existed against its enforcement.”

In discussing the ease, Chief Justice Gaines, speaking for the court, said:

“It is not to be controverted that as a general rule the aid of a court of equity cannot be invoked to enjoin criminal prosecutions. This rule is, however, subordinate to the general principle that equity will grant relief when there is not a plain, adequate, and complete remedy at law, and when it is necessary to prevent an irreparable injury.”

The case at bar is not, we think, merely one in which the prosecuting officers of Gray-son county are threatening to file prosecutions against the appellant for the violation of a statute, or one showing simply that appellant is licensed, having paid the required tax, to pursue an occupation, which is the proper subject of police regulation. It is one, as pointed out by counsel for appellant, in which the chief prosecuting officer of Gray-son county and the chief peace officer of said county, under color of an -unconstitutional and void law, have committed a trespass against the property and business rights of a citizen, and who were, at the time the injunction was applied for and granted herein, threatening him with repeated trespasses of like character and with prosecutions for each day he attempted to pursue his business and make a legal use of his property. That the action of prosecuting officers in filing or threatening to file prosecutions for the violation of an ordinance or statute will not ordinarily he enjoined is well settled. If, however, the prosecution or threatened prosecution is under a void law and will result in the destruction of property rights, the interposition of a court of equity may be invoked to protect such rights. So, too, one who has paid the required tax a^id received a license authorizing him to pursue .a certain occupation does not acquire such a vested'right in the occupation or business as that he may not he deprived thereof by a valid law prohibiting the business or occupation. But until -prohibited by a valid law he may, as we understand the law, “pursue any legal business in a legal way.” The allegations of the petition for injunctive relief in the present case are sufficient to bring it within the exceptions to the general rule that such relief will not ordinarily he granted to prevent criminal prosecutions. As stated -by counsel for appellant, the facts alleged show an unwarranted trespass, the probable destruction of private property, the driving of customers from appellant’s place of business, the closing of his doors, the stopping of a legal occupation from which revenue was derived, and not only the threat of numerous prosecutions, but the fact that numerous prosecutions would be instituted. The case, as presented, is one, we believe, which entitles appellant to relief by injunction. In addition to the cases already cited, the following may he consulted: Dibrell v. City of Coleman et al., 172 S. W. 550; City of Hutchinson et al. v. Beckham et al., 118 Fed. 399, 55 C. C. A. 333; Dobbins v. Los Angeles, 195 U. S. 223, 25 Sup. Ct. 18, 49 L. Ed. 169; Central Trust Co. of New York v. Citizens’ R. Co. et al. (C. C.) 80 Fed. 218; Id., 82 Fed. 1.

The judgment of the -district court is reversed, and the injunction as prayed for is granted.
      <S&wkey;For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: GRAVES, J.

text:
    WELD-NEVILLE COTTON CO. v. ELDER, DEMPSTER & CO., Limited.
    (No. 7566.)
    (Court of Civil Appeals of Texas. Galveston.
    May 7, 1918.
    Rehearing Denied June 27, 1918.)
    Shipping <®=j108 — Space op Shipment — Action — Eight op Recovery.
    Where steamship owners sued cotton shippers because cotton shipped was not “Webb high density cotton” as agreed, and took up too much room, they could not recover when court found that cotton turned out by Webb high density presses in workmanlike manner, without reference to density, was generally regarded as compliance with contract calling' for such cotton, notwithstanding further finding that such cotton should have specified average minimum density.
    Appeal from District Court, Galveston County; Eobt. G. Street, Judge.
    Action by the Elder, Dempster & Co., Limited, against the Weld-Neville Cotton Com-liany. Judgment for plaintiff, and' defendant appeals.
    Reversed and remanded.
    C. C. McRae and Baker, Botts, Parker & Garwood, all of Houston, for appellant. Edw. F. Harris and Harris & Harris, all of Galveston, for appellee.
   GRAVES, J.

Appellee sued appellant in the court below for $3,500 damages, alleged to have accrued by reason of 2,000 bales of the latter’s cotton having taken up more space on the former’s steamshipi between Texas City, Tex., and Havre, France, than it should have done under their contract. Judgment for $1,103.45 was entered in favor of appellee, from which this appeal is taken.

A very succinct statement of the contract as declared upon by appellee is taken from its brief, page 20, as follows:

“The plaintiff alleged that the defendant contracted to furnish for transportation 2,000 bales of ‘high density Webb compressed cotton,’ and the defendant failed to keep and perform its contracts, in that it did not deliver to plaintiff 2,000 hales of high density Wehh compressed cotton, hut delivered to plaintiff 2,000 hales of Wehh compressed cotton which were not of high density as contracted for; that the density of said cotton so delivered fell far below the density contracted for, to the damage of the plaintiff in the sum of $3,500.00; that high density Webb compressed cotton has a minimum density of about twelve pounds per cubic foot greater than the minimum density of standard compi-essed cotton; that the average density of the cotton furnished by defendant was about ten per cent, less than the density contracted for in the use of the words in the contract ‘high density Webb compressed cotton,’ to the damage of the plaintiff in said sum of $3,500.00.”

The italics appearing are our own, inserted to specially point out in what particular the Dempster Company charged the Ne-ville Company with having breached the contract between them; thus by its own statement, which is an accurate digest of its pleadings, the only respect in which it claimed the contract to have been violated was in the failure of the Neville Company to furnish it cotton of as high density as contracted for; it is true thlat no fixed high density ■is specifically alleged, as appellant erroneously, we think, contends; but the inevitable effect of the averments made is that at least some certain high density per cubic foot as a minimum was contemplated in using the term, “high density Webb compressed” cotton; that is, in putting those woids into their agreement, the parties mutually understood and intended that the 2,000 bales to be furnished by the one and carried across the ocean by the other should not fall below some fixed density.per cubic foot, and consequently, being just so compact, should only take up so much definitely determinable room within the ship, and no more. Indeed, that is not only the plainly conceded effect of its pleading as made by appellee in the statement already quoted from its. brief, but likewise follows from the nature of the sole recovery it sought, to wit, compensation for the wrongful taking up by appellant of more room in the ship than it was entitled to.

Nor is the net result of this analysis of its position changed in the least by the contention of appellee that it did not allege the existence of such a trade usage or custom as required the cotton to be of a minimum density of 34 pounds per cubic foot in order to comply with the terms of this contract. Concession may be freely made that such was not done; that the only custom it alleged had reference to the rate per 100 pounds for ocean transportation, and, further, that its detailed allegation, “that high density Webb compressed cotton has a .minimum density of to wit: about twelve pounds per cubic foot greater than the minimum density of standard compressed cotton,” gave appel-lee a play in density of several pounds per cubic foot, within the limits of which might be found -the precise weight necessary to make it “high density Webb compressed” cotton, yet still such a minimum was necessarily asserted to exist; otherwise there could have been no possible way disclosed, under the case made by the pleadings, of arriving at how much or how little room in the ship the 2,000 bales contracted for either should have, or in fact did take up.

So that it is quite beyond controversy that appellee, having first pleaded that the freight rate for transporting the cotton was based upon its density, grounded its case upon the contention that the cotton it here carried, on account of not having at least the minimum density required by the contract, occupied more room upon its- ship than it would have occupied had it been of the proper density, and the damages sought were for the additional room used.

Such being the nature of the right claimed, on turning to the findings of fact it is disclosed that the court, having tried the case without a jury, found there was at that time no trade usage fixing the specific number of pounds to the cubic foot as the minimum density of the cotton contracted for; the relevant parts of its findings of both fact and law being these:

“(4) There was in January, 1916, no trade usage at Houston, Galveston, or Texas Oity fixing a specific number of pounds to the cubic foot as the minimum ‘density’ of the cotton contracted for. * * *
“(5) The ship agents had endeavored to fix a minimum density of 34 pounds, but did not live up to it themselves, and the attempt even was not generally known to cotton exporters, such as the defendant in this case, who had neither knowledge or notice of it. Exporters generally at the time regarded any cotton turned out ~by ’WeVb high density presses in shipshape, or in workmanlike manner, as compliance with oontracts such as sited on, and Imew of no different contention.
“(6) Ship agents, more or less generally, stipulated in contracts such as those sued on, the minimum density required in the particular transaction varying from 32 to 34 pounds, some would have accepted cotton as low as 30 pounds density as in compliance with such contracts.
“(7) My conclusion is that cotton turned out by a Webb high density press in a workmanlike manner should have had a minimum average density of 32 pounds to the cubic foot.
“(8) The cotton furnished by the defendant had gone through a Webb high density press, but it had not all been compressed in a workmanlike manner. Its average density was 31 pounds.
“Law.
“In the absence of a usage of trade as to what constituted Webb high density cotton at the time of the making of these contracts, the true measure of plaintiffs right and of the. defendant’s liability is for cotton turned out by Webb high density presses in a workmanlike manner.”

If, as is strongly indicated both in the portion of the fifth finding we have italicized and in the succeeding conclusion of law, the court meant to find, and upon that as a ba-< sis to so adjudge, that cotton turned out by Webb high density presses in shipshape, or in workmanlike manner, without any reference to density, was then generally regarded as a compliance with a contract calling for “high density Webb compressed” cotton, it follows from the preceding deductions that the judgment was founded on a state of case not declared upon by the appellee. In such circumstances no recovery could stand. Krohn v. Heyn, 77 Tex. 319, 14 S. W. 130; Plow Works v. Morris, 17 Tex. Civ. App. 6, 42 S. W. 652.

It may be, however, that the court did not intend to so find, but really meant to determine that the contract term “high density Webb compressed” cotton was generally understood as designating cotton turned out by Webb high density presses in a workmanlike manner, and having a minimum average density of 32 pounds per cubic foot. That view would be permissible by considering the seventh finding a mere corollary to the preceding ones, despite the fact that their form indicates each to be a complete proposition within itself.

On the other hand, if the court in this seventh finding simply undertook to ingraft 1 i upon this contract, anyway, his conclusion that “high density Webb compressed” cotton should have had an average minimum density of 32 pounds per cubic foot, after having first found no such density was either therein specified, or understood by the trade to be an inherent condition thereof, the manifest result was the unauthorized making of another and different contract than that sued upon, and the consequent adding of a basis of recovery not contended for..

When the statement of facts is looked to, we are inclined to think the evidence in the record would have justified a finding either way, and if the one last supposed was intended, further that, by indulging every reasonable inference in aid of the sufficiency of appellee’s pleading, since only a general demurrer was interposed against it, the allegations were broad enough to cover the kind of case thereby assumed to have been developed. If, however, the meaning first outlined should be read into the findings, it is clear the pleading did not comprehend that character of case.

Upon the record as a whole, the conclusion has been reached that the ends of justice would best be subserved by remanding the cause for another trial, in order that opportunity be afforded for clearing up the matters thus left in doubt by the pleadings and the findings. Such, parts of the various assignments of appellant as present the questions discussed are therefore sustained; it being deemed unnecessary to discuss them separately. They have all been carefully considered, however;. and, if any material errors not disposed of in the conclusions stated are pointed out, it is not thought they are such as will probably occur upon another trial.

Pursuant to the views expressed, the judgment is reversed and the cause remanded.

Reversed and remanded.
      tg^pFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: CONNER, C. J.

text:
    HARDIN v. HAMILTON, Justice of the Peace, et al.
    (No. 8872.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    April 27, 1918.
    Rehearing Denied June 15, 1918.)
    1. Mandamus <§=>168(1) — To 'Justice of Peace — Appeal in Fokma Pauperis.
    The question for the county court on hearing of petition for mandamus to a justice of the peace to allow appeal in forma pauperis is, not whether the justice erred in refusing such appeal on the evidence before him, but whether on the further evidence before the court there is a right thereto.
    2. Mandamus <§==>27 — 1To Public Officer— Ministerial Duty.
    1 Mandamus will not issue against a public officer save to compel performance of a ministerial duty, neither involving discretion nor i leaving any alternative.

      3. Justices oe the Peace <§==>159(2) — Appeal in Fokma Paupebis — Questions on Contest.
    The question on contest of right, under Vernon's Sayies’ Ann. Civ. St. 1914, art. 2394. to appeal in forma pauperis from a justice of the peace, is of inability to give security for, as well as pay, costs.
    4. Mandamus <®=>3 (12) — Remedy by Gek-tiorabt.
    Writs of mandamus will not be issued where there is a clear legal remedy, as by certiorari, by which the statute authorizes a cause to be removed from justice court to the county court.
    Appeal from Comanche County Court; J. I-I. McMillan, Judge.
    Mandamus by W. L. Hardin against G. C. Hamilton, Justice of the Peace, and another. Writ denied, and petitioner appeals.
    Affirmed.
    W. T. McPherson, of Comanche, for appellant. Smith & Palmer and Callaway & Cal-laway, all of Comanche, for appellees.
   CONNER, C. J.

This is an appeal from a judgment of the county court of Comanche county refusing to grant an application for writ of mandamus presented by appellant, W. L. Hardin. The application was disposed of upon a hearing of the facts.

The facts are substantially that: On the 27th day of December, 1916, one Nute Hall recovered a judgment against appellant for the sum of $89.30 and all costs of suit with interest in a justice court of Comanche county held by the Honorable G. C. Hamilton, justice of the peace. The judgment foreclosed an attachment lien upon certain personal property described in the judgment. Appellant, desiring to appeal from that judgment to the county court, in: due time presented his propei-ly verified affidavit so stating, and further stating that he was “unable to pay the cost of the appeal or any part thereof, or to give security therefor.” The plaintiff in the suit filed an unverified contest of this affidavit, and the justice of the peace heard evidence -and indorsed on the back of the written contest the following:

“It appearing to the court that defendant has not been diligent in trying to make an appeal bond, I refuse to send up papers. [Signed] G. C. Hamilton, J. P. Rendered January 12, 1917.”

It was later suggested in the justice court that the entry above quoted was not a final judgment, and the justice of the peace accordingly entered nunc pro tunc a judgment reciting the fact of the hearing of the contest as to the sufficiency of Hardin’s affidavit of inability to' pay or secure costs, and further recited that:

“Having heard the evidence in support of the ^aid affidavit, and the evidence against same presenting it, and having heard the argument of counsel thereon, is of the opinion that the. defendant has not made strict proof of his inability to pay the cost of appeal or any part thereof, but that the said Hardin could pay at least $25 of the cost of same, and it further appearing the said Hardin had made no consistent effort to give security therefor, the said affidavit in lieu of appeal bond is accordingly refused, and this court refuses to make out a transcript for appeal of the said case to the county court for trial de novo, on said affidavit.”

The county court heard the evidence as it was submitted to the justice of the peace on the hearing of the contest, and also further evidence which tended to show that the appellant could in fact have paid at least a part of the cost of appeal of the justice court. The evidence as submitted before the justice of the peace on the hearing of the contest was the testimony of Hardin himself. He testified at that time:

That he' was a “single man. That he had no money to pay the cost of appeal or any part of the same, and did not know whether he could get the money or any part of it to pay the cost of said appeal. That all the property he owned was a planter and cultivator used by him in farming. That he was a farmer by occupation. s ⅞ ⅜ That he had about 60 bales of peanut hay at his rent place, but that the Burks Mercantile Company of Comanche, Tex., held a mortgage on that. That the peanut hay and the planter and cultivator have been attached by Nute Hall, the plaintiff in this suit. That he had no other property whatever. That all the efforts he had made to get any one to go on his bond to appeal the case was his brother, Joe Hardin, who lived at Hasse, Tex., and that he would not agree to go on the bond. That he had lived at Hasse a number of years and was well acquainted with the people there, and that he knew if his brother Joe would not g'o on his bond no other person there would. «: ⅜ ⅜ ¡je ¡ja(j not rendered any property for taxes for the year 1916.”

It does not seem to be very earnestly insisted that the additional testimony heard by the county court is insufficient to authorize the conclusion that appellant could in fact have paid part of the cost or give security therefor at the time of the contest before the justice of the peace. Appellant’s insistence seems to be more particularly that the evidence as it was heard by the justice of the peace did not authorize such conclusion and that therefore under the statute the justice should have sent up the transcript and allowed the appeal. The justice of the peace who testified before the county court testified that the memorandum made by him upon the written contest of the affidavit did not recite all of his reasons for the ruling, and it must be remembered that the justice heard the trial of the case between Nute Hall and appellant in his court on the merits. He must therefore at the time of the hearing of the contest have had in mind the fact of the issuance of the writ of attachment and of its levy upon the property therein described and the finding of the jury in Nute Hall’s favor and the foreclosure of the lien upon the attached property. We Imow of no rule that would preclude the justice of the peace in the exercise of the discretion vested in him by law to consider such facts together with the evidence of Hardin, his manner of testifying, etc., on the hearing of the contest. The record shows that Hardin testified on the contest at the instance of the plaintiff Nute Hall oyer his (Hardin’s) objection, and it is by no means very clear, as we think, that the justice of the peace on the whole abused his discretion in ruling on appellant’s contest.

But aside from the foregoing suggestions, it is to be remembered that appellant by his application for the writ of mandamus was appealing to the county court for an exercise of equitable powers. The county court is not clothed with the power to act merely as a revisory tribunal to determine the correctness of the rulings of a justice of the peace. In cases of appeal the trial in the county court is de novo on the merits of the case, regardless of the rulings of the justice of the peace, whether erroneous or not. So that we think it was entirely proper for the county court, oq the hearing of the petition for mandamus, to hear any and all competent evidence that the court should decide to hear, in order to determine whether or not the applicant was entitled to relief by writ of mandamus. If so, as before suggested, the evidence as heard before the county judge as a whole is such as in our judgment supports his ruling refusing the application. It is a familiar rule relating to the issuance of writ of mandamus that such writ will not issue against a public officer save to compel the performance of an act clearly defined and enjoined by the law, and which is therefore ministerial in its nature, and which neither involves any discretion nor leaves any alternative. See Teat v. McGaughey, 85 Tex. 478, 22 S. W. 302; Walker v. Barnard & Co., 8 Tex. Civ. App. 14, 27 S. W. 726; De Poyster v. Baker, 89 Tex. 155, 34 S. W. 106.

AVe are the more inclined to this conclusion from a reading of our statute on the subject of giving an affidavit in lieu of a bond for security of the cost of appeal. Appeals from a judgment in the justice court are in certain cases allowed by law, and the statute (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2394) provides, among other things, that:

“Where the appellant is unable to pay the cost of appeal, or to give security therefor, he shall nevertheless be entitled to prosecute his appeal; but, in order to do so, he shall be required to make strict proof of Ms inability to pay the cost, or any part thereof. Such proof * * * shall consist of the affidavit-of said party stating his inability to pay the cost; which affidavit may be contested by any officer of the court or party to the suit; whereupon, it shall be the duty of the court trying the case, or the justice of the peace of the precinct in which said case was tried, * * * to hear evidence and determine the right of the party to his appeal.”

Appellant insists that he was not required to show before the justice that he could not give security for cost. His contention is that he was only required to make proof of “his inability to pay the cost, or part thereof.” And the case of Murray v. Robuck, 89 S. W. 782, is cited in support of this contention. While some of the language in the opinion referred to may give some support to the contention, yet we hardly think the court with that particular point in mind was undertaking to so decide. But however this may be, we are not inclined to that construction of the statute quoted. Reading it as a whole, we think the statute contemplates that, on the hearing of a contest of the kind that took place before the justice of the peace in this case, evidence tending to show that the affiant could in fact give security for the cost, though in fact unable at the time to pay cost or any part thereof, would justify the officer in refusing to grant the appeal. It certainly would not be in accord with the spirit of the law to permit by an appeal a party, unquestionably able to give security for the payment of the cost, to perfect his appeal on affidavit alone, merely because he made proof that he at the time was unable to pay such cost or part thereof. If this construction of the statute is the proper one, it cannot be said in any event that the justice abused his discretion in refusing the appeal. For on the hearing of the contest, as well as in the county court, it was shown that appellant had lived and was well acquainted in the community, and that he made no effort whatever to make a bond for the cost except so requesting of his brother. The reason for his brother’s refusal was that he said:

“He would help him pay his attorneys, and help him get his witnesses there and would help him pay his jury fees, but that he would not sign any bond or anything else so that he could not quit when he wanted to or where he would be compelled to pay any cost of Nute Hall.”

It further appears from the record that appellant after the contest in fact disposed of some personal property, and with the proceeds paid at least a part of his attorney’s fees for the bringing of the suit for mandamus.

Perhaps further discussion is unnecessary, but, while the question has not been presented in the briefs, it may not be out of place to suggest that writs of mandamus will not be issued by a court of equity where a party applying has a clear legal remedy, and that our statutes provide that any time within 90 days after the rendition of the final judgment of a justice of the peace the complaining party may secure a removal of the cause to the county court by a writ of cer-tiorari. This writ, in cases of certiorari to a justice court, is issued by order of the county judge upon petition therefor accompanied with an affidavit in writing setting forth sufficient cause to entitle the complaining party to the right. The cause required is, either that the justice of the peace had no jurisdiction, or that injustice was done to the applicant in the suit or proceeding, and that such injustice was not caused by Ms own Inexcusable neglect. See chapter 2 'of title 21, Vernon’s Sayles’ Tex. Civ. Stats, yol. 1. This remedy is clearly a legal one, and, wMle the statute (article 748) requires an applicant for the writ of certiorari to give bond “in such sum as the judge shall direct” that he will perform the judgment of the county or district court, there is nothing in the record before us that tends to show that the appellant, Hardin, could not have given a bond such as might have been required by the county judge.

On the whole, we conclude that the judgment of the county court herein should be affirmed.

Affirmed.
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author: SWEARINGEN, J.

text:
    TEXAS-MEXICAN RY. CO. v. CREEKMORE.
    (No. 6045.)
    (Court of Civil Appeals of Texas. San Antonio.
    June 5, 1918.
    Rehearing Denied June 24, 1918.)
    1. EvidbNob <&wkey;528(2) — Admissibility.
    The physician in charge of case, who had known plaintiff prior to the injury, was properly permitted to testify, “I found him complaining of some pain and inability to do his work without tiring him,” and “confinement was due solely to the injury to his back.”
    2. Evidence &wkey;>509 — Bodily Condition.
    Where it was undisputed plaintiff was injured in a certain wreck, and that muscles were torn loose from the spinal column, admission of testimony by a witness that on plaintiff’s arrival after the wreck he was suffering from, an injury to his back, which he claimed to have received that evening in a railroad accident, and that he was suffering to such an extent that he did not walk about, etc., was not reversible error.
    3. Ahpeal and Error <&wkey;230 — Matters Reviewable — Sa vino Objeotions.
    Objections to rulings made for first time on motion for new trial cannot be reviewed on appeal.
    4. Damages <&wkey;131(l) — Personal Injuries— Permanent Injuries — Injuries to Spine and Nervous System.
    Six thousand dollars damages was not excessive for mail clerk, whose muscles were tom loose from the spinal column.
    Appeal from District Court, Nueces County; W. B. Hopkins, Judge.
    Suit by R. H. Creekmore against the Texas Mexican Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Asher R. Smith, of Laredo, and Hicks, Phelps, Dickson & Bobbitt, of San Antonio, for appellant. John C. Scott and Dawson & Anderson, all of Corpus Christi, for appel-lee.
   SWEARINGEN, J.

R. H. Creekmore, the appellee, brought this suit against the Texas-Mexican Railway Company, appellant, to recover damages for personal injuries caused .by derailment of appellant’s train, in which appellee was performing his duties as railway mail clerk. A general charge was submitted to a jury, which returned a general verdict in favor of appellee for the sum of $6,000.

The first amended petition alleges that ap-pellee, a postal clerk, while riding in the mail car provided for railway postal clerks, and while attending to the duties of his employment, a part of appellant’s train, including the mail car, was derailed, from which derailment—

“the plaintiff received and sustained serious and permanent internal and external injuries. He was thereby seriously and permanently injured in tbe back and in and near his spinal column, and the muscles and tendons in bis back and on and near the sides of his spinal column were permanently injured, and the muscular attachments were torn loose from tbe side of his spine, and a .depression was made on one side of the spine. Plaintiff was confined for a long time to a bed of sickness, and he still suffers, and during the remainder of his life will continue to suffer,_ sickness, physical pain, weakness, and inconvenience. Ho has been permanently weakened in his physical and nervous strength, andjiis power of locomotion has been permanently damaged and injured, and tbe use and strength of his right arm and right leg have been permanently impaired. His nervous system has been permanently damaged and weakened, and be cannot sleep well, and at times is subject to nervous attacks, which cause sleeplessness and great physical inconveniences, and it requires, and will always require hereafter, greater effort on his part to discharge his duties as a mail clerk, and lie cannot as easily perform such duties as he did before he received said injuries. His physical and nervous strength has been permanently impaired and weakened; and since receiving said injuries he has had to secure competent medical treatment and medicines, and has paid therefor, and same are reasonably worth, about $150, and his health has been permanently impaired, and it will be necessary for him to have medical treatment and attention, on account of said injuries, during the remainder of his life. And plaintiff further shows that on account of said injuries his life will be shortened, and he will not be able to earn money in his usual vocation for as long as he otherwise would have been, and by said injuries he has been actually damaged in the sum of $10,000.”

Appellant demurred to the said petition, directed a number of special exceptions against it, and made a general denial of all the allegations. None of the special pleas in the answer are involved in the assignments; hence further mention is useless.

There is evidence to sustain all of the allegations of the said petition, most of it undisputed. In fact, the only controversy is as to the extent of appellee’s injuries, appellant insisting they are trivial and the afhount allowed by the jury excessive.

The first four assignments complain of the admission in evidence of certain testimony. The first contends that the attending physician should not have been permitted to testify that, “I found him (plaintiff) complaining of some pain and inability to do his work without tiring him,” nor to testify that, “I do not remember how long he (plaintiff) was confined to his room at that time (time witness saw plaintiff), hut the confinement was due solely to the injury to Ms back.” The objection urged was that the testimony was hearsay and a nonexpert conclusion. The undisputed evidence is that appellant’s muscles were torn loose from the backbone by the derailment, and caused him to remain in bed for 12 days and in his house for 45 days.- It also shows that the witness was the physician in charge of the case, and had known appellee prior to the injury. The testimony was admissible. Rogers v. Crain, 30 Tex. 284; Railway Co. v. Harriett, 80 Tex. 73, 15 S. W. 556; Railway Co. v. Burnett, 80 Tex. 536, 16 S. W. 320; Railway Co. v. McElmurry, 33 S. W. 249; Railway Co. v. Brown, 16 Tex. Civ. App. 93, 107 et seq., 40 S. W. 608; Railway Co. v. Wright, 19 Tex. Civ. App. 47, 47 S. W. 56; Railway Co. v. Williams, 26 Tex. Civ. App. 153, 62 S. W. 808; Railway Co. v. Hawk, 30 Tex. Civ. App. 142, 69 S. W. 1037; Railway Co. v. Moore, 31 Tex. Civ. App. 371, 72 S. W. 226; McGrew v. Railway Co., 32 Tex. Civ. App. 265, 74 S. W. 816; Hickey v. Railway Co., 95 S. W. 763; Telegraph Co. v. Stubbs, 43 Tex. Civ. App. 132, 94 S. W. 1083; Railway Co. v. Cherry, 44 Tex. Civ. App. 344, 98 S. W. 898; Railway Co. v. Stoy, 44 Tex. Civ. App. 448, 99 S. W. 135; Railway Co. v. Abbott, 146 S. W. 1078; Railway Co. v. Overturf, 163 S. W. 639; Railway Co. v. Brown, 163 S. W. 383; Railway Co. v. Roemer, 173 S. W. 229.

The second and third assignments contend that the witness Twiss should not have been permitted to testify:

“On plaintiff’s arrival at the post office building in Laredo he was suffering from an injury to his back, which he claimed to have received that evening in a railroad accident, and his suffering was so severe that he was unable to move about.” “He was suffering to such an extent that he did not walk about at any time.” “He was unable to take care of himself and required assistance.” “He (plaintiff) was suffering from the alleged injuries to his back. The pain was located in his back.”

The objection was that the testimony was a mere conclusion of the witness. Under the facts of this case, the admission of the testimony is not reversible error. Fordyce v. Moore, 22 S. W. 235; Railway Co. v. Reagan, 34 S. W. 796; Railway Co. v. Brown, 30 Tex. Civ. App. 57, 69 S. W. 1010; Railway Co. v. Jones, 39 Tex. Civ. App. 480, 88 S. W. 445; McCabe v. Traction Co., 39 Tex. Civ. App. 614, 88 S. W. 387; Traction Co. v. Flory, 45 Tex. Civ. App. 233, 100 S. W. 200; Railway Co. v. Schuler, 46 Tex. Civ. App. 356, 102 S. W. 783; Railway Co. v. Clippenger, 47 Tex. Civ. App. 510, 106 S. W. 155; Railway Co. v. Hibbitts, 49 Tex. Civ. App. 419, 109 S. W. 228; Cunningham v. Neal, 49 Tex. Civ. App. 613, 109 S. W, 455; Ins. Co. v. Wagner, 50 Tex. Civ. App. 233, 109 S. W. 1120; Railway Co. v. Sandlin, 57 Tex. Civ. App. 151, 122 S. W. 60; Railway Co. v. Morrison, 129 S. W. 1159; Railway Co. v. Dellmon, 171 S. W. 799; Yeatts v. Railway Co., 184 S. W. 636; Traction Co. v. Nicholson, 188 S. W. 1028.

The first four assignments are all overruled.

The fifth and sixth assignments present objections to that portion of the court’s general charge which enumerates what the jury can take into consideration in estimating the amount of damages. None of the objections urged in this assignment were,made in the trial court before the charge was read to the jury. Neither were the objections here urged presented to opposing counsel prior to submission to the jury. But the objections were first made after the trial of the cause, when set out in the motion for new trial. Under these circumstances, we are not permitted to review the contention. The fifth and sixth assignments are overruled. G., T. & W. Ry. v. Dickey, 108 Tex. 137, 187 S. W. 189; Railway Co. v. Kjellberg, 201 S. W. 1032; Railway Co. v. Frank, 177 S. W. 168; Crum v. Thomason, 181 S. W. 803.

The seventh and eighth assignments assail the judgment for excessive amount.

In deference to the verdict and judgment, we feel bound to consider the injury, its nature, duration, and effect, to be proven by the testimony of appellee himself and his witnesses, particularly the two physicians who treated him. Dr. Xeager testified that he had attended appellee in the capacity of a physician, and said:

“He was injured down the side of the spine, on the left side, I think. He had been injured in the back near the spinal column. The muscles and tendons were affected by the injury, by the tearing Moose of the muscular attachments. They failed to give the support to his back that they should. The muscles and tendons at or near the region of the spinal column were lacerated and torn, to the extent that they didn’t give the support that they should, and on inspection the muscles on the injured side of the back were not as prominent as on the other side. The nervous system of R. H. Creekmore was affected and injured by the injuries; it has aged him, and he hasn’t the vitality he had before. * * * A man would suffer pain in the region of the back when the muscles were torn aloose. The effect would be to weaken him physically, and also from a nervous standpoint. The effect on his nervous system would be .that it would not be as stable, and as to his power of locomotion, to a small extent it would hinder his locomotion, and he wouldn’t be sure of himself. * * * I believe his injuries permanent. The muscles and tendons at or near his spinal column in the small of the back had been injured at the time I made such subsequent examinations. They looked as though they were torn away from their attachments. The muscles in the small of the back, at or near the spinal column, had been torn loose. On inspection that side looked three-quarters of an inch lower than the other side where the muscles were attached. I believe there is a permanent injury to those muscles.”

Dr. Painter, another attending physician, testified:

“I have examined Mr. Oreekmore myself a few times, when I stripped him and put strips on his back. The purpose of putting those strips on his back was they splinted the muscles. I mean by that, if you have a broken bone you put a splint on it, and if you have a strained muscle you put a strapping on — they are exactly like a board on a broken bone, to give the muscle complete rest and support — as complete rest and support as possible. * * * The erector spinaj is the muscle that runs .all the length of the backbone, on either side of the backbone. There are two of them that run the whole length of the backbone, and1 are attached to the backbone all the way along, attached by tendons, just like muscles are attached to bones. Those two muscles on each side of the backbone are important parts of a man’s anatomy. A man couldn’t ever do business without the whole muscle; a man can go about and perform all the different functions to some extent with one of the two divisions of the muscle injured, but not without the erector spinse muscle, as that muscle holds the body erect, holds the backbone straight, and holds the back that way (indicating); makes the backbone straight. * * * A patient under that condition would be able to walk, and probably would be able to use his arms, hut he wouldn’t he able to bend forward, backward, or . sideways. As well as I remember, it was the left side of Mr. Creekmore’s back that was injured — in the lumbar region, we call it. I would point it out to you if you would have him come around here. This depression isn’t as well marked as when X first examined it, but this muscle on this side isn’t as full in flesh as it is on that' side. Here is where the depression was, just about the lumbar region, right along here. Normally, that side on the left is as high as it is on the right; there, in his hack now, you can see that it isn’t — that’s perceptible to me. That depression on the left-hand side there is not a natural condition. That muscle has been injured some-time, somewhere, somehow. You cannot feel the injury, specially, now; you can feel the depression there, on the left-hand side of the backbone. Now these muscles, all the muscles in the body, in a right-handed person are a little more developed than the muscles on the left-hand side.”

The appellee testified:

“It was a very severe pain, very acute, just like you drove something in there. When I undertook to move it caused that pain. Also had a little hurting, in my shoulder, and my head felt sore, like it had had a stroke or lick. I remained in the post office in Laredo but a few minutes, no longer than I could get help to change my clothes. I couldn’t change my clothes myself; couldn’t lift my right foot off the floor; it caused this pain — made it so severe that I couldn’t do it — right here at the left-hand side of my spine1, a severe pain. It was a dull, heavy pain, and then when I would go to move it. would be a sharp pain, but a dull heavy pain all the time, continuously. X walked to the Hamilton Hotel with the assistance of John Twiss and; this Mexican they called Benavides; don’t think I could walk without their assistance; I didn’t try it, but don’t believe I could. When X got to the hotel I went to my room; stayed there that night. Mr. Twiss was with me after I got a physician, and he gave me some opiate to dull the pain. I can’t think of the name of the physician right now. He said he gave me some opiate to take that night and the next morning, and a plaster on my back so .1 could manage to get home. We left Laredo the next day about 8 o’clock, I thiflk. We came to Corpus that day. I did not come alone; brought Victor Garza along to look after the mail. I wasn’t able to do it myself; wasn’t able to stand .up. I had pain all the time the next day. Of course it wasn’t as acute as it was the evening before on account of the medicine the doctor gave me to dull the pain. * * * I didn’t go out any that night, and I was at my house 45 days before I went out on the road again. I was suffering from that injury ; that’s the reason I didn’t get out. I was confined in bed from that injury about 10 or 12 days, and during that time I suffered pain all the. time, dull, heavy pain, in the left-hand side, right here to the left of the spine, in the left-hand side. By spine I mean the backbone; that’s where the main pain was. It was 45 days before I got out to work again, and I have been on that run ever since. I had a physician attend me here, Dr. Yeager. He attended me continuously until I went back on the road, and months afterwards. Before I received those injuries I was a strong, healthy man. I did not use a walking cane. I have been walking with a stick just since I got up after I was injured, and now I use it continuously because I can’t get along without it. I can’t step up on a sidewalk or on a step, or down, without the use of it. As to the condition of my right arm and right leg now as compared to the condition they were in before I got hurt, I can’t use either of them like I could before I got hurt, and I can’t use either of them unless I use them very carefully, without pain. I haven’t got the same strength in them now that I had before I got hurt. Sometimes I can use the right hand a little while in walking with the stick, and then it begins to pain me, and I have got to change it to my left hand. As to my nervous condition since this accident happened, I am almost a nervous wreck. I can’t sleep lots of times for hours. I was not in that condition before I got hurt. In regard to sleeping, I have to change my position often, never longer than an hour and a half. I have nervous attacks, and the effect of those is that they keep me awake as long as I am in that condition, and sometimes I have two or three spells in one night, sometimes only one. I take medicine for it, a prescription given me by the doctor. He told me it contained strychnine. I did not have any of these nervous attacks before I was hurt. There is a depression on one side of my spinal column, the left-hand side of my backbone; it’s about five or six inches long. There is a depression there that you can lay your thumb or finger in about five inches long, right along the backbone. That was not there before I got hurt, but it has remained there ever since I got hurt. I have been under the same treatment that the doctor prescribed when he first came to see me., ever since. I use adhesive plasters to brace me up here (indicating) —my back. My back is weak.”

From all the foregoing, we are unable to say that the sum of $6,000 for damages, allowed by the verdict and judgment, is excessive and the result of passion or prejudice.

We overrule the seventh and eighth assignments.

The judgment is affirmed.
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