author: TALBOT, J.

text:
    ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. ANDERSON et al.
    (No. 8010.)
    (Court of Civil Appeals of Texas. Dallas.
    Oct. 26, 1918.
    Rehearing Denied Nov. 30, 1918.)
    1. Appeal and Error <&wkey;715(2) — Record — “Fundamental Error” — Affidavits.
    A fundamental error is one apparent upon the face of the record, and affidavits showing error, being no part of the record, cannot be considered.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Fundamental Error.]
    2. Abatement and Revival <&wkey;27 — Death <@=342 — Necessary Parties — Jurisdiction.
    In a suit by the wife and child of deceased to recover for deceased’s wrongful death, the nonjoinder of deceased’s father is not jurisdictional, but will abate the suit when made to appear of record.
    3. Death <&wkey;76 — Cause of Death — Evidence.
    Evidence held to show that the death of plaintiff’s intestate was caused by injuries resulting from intestate’s being thrown from a hack to the ground when defendant’s locomotive struck the hack.
    4. Railroads <&wkey;278(6) — Injury Avoidable Notwithstanding Contributory Negligence.
    Where those operating a locomotive discovered a hack standing too close to the track at a station, and failed to use every means consistent with the safety of the train and its operatives to avoid collision, the railroad company is liable notwithstanding contributory negligence.
    5. Negligence <&wkey;83 — Last Clear Chance.
    The principle of last clear chance has no application in the absence of actual knowledge by defendant of danger.
    6. Railroads <&wkey;282(3) — Negligence — Discovered Peril — Burden of Proof.
    The burden of proof is upon the injured plaintiff to establish that defendant’s employes operating its train actually discovered plaintiff’s peril in time to have avoided the injury.
    7. Railroads <&wkey;282(5) — Discovered Peril— Knowledge — Evidence.
    Evidence held sufficient to sustain a jury’s finding that operatives of defendant’s locomotive discovered that plaintiff’s intestate’s horses had backed his hack upon the track about 150 feet ahead of the train, and failed to use the means at their command to avoid the injury.
    8. Appeal and Error <@=3731(1) — Assignments — Excessive Verdict.
    An assignment that “the verdict of the jury as to A. is excessive” is too general for consideration.
    9. Death <&wkey;99(4) — Excessive Verdict.'
    Where a hack driver was killed by a collision with defendant’s locomotive, a verdict for $4,500 to his wife and $3,000 to his minor son for pecuniary loss till he became of age held not excessive.
    10. Death <&wkey;86(2) — Measure of Damages— Wife and Son of Deceased.
    The wife and son of deceased are entitled to recover, as pecuniary loss for deceased’s wrongful death, not only the amount he might have contributed to their support, but the value of his attention, care, and counsel to the wife, and of his intellectual and moral advice, education, and training to his son.

      11. Appeal and Error <&wkey;1050(2) — Habmless Error — Immaterial Evidence.
    Where, in an action by the wife and minor son of deceased to recover for deceased’s wrongful death, evidence as to deceased’s advice to the son was immaterial to any issue, its admission must be held harmless.
    12. Trial <&wkey;114 — Argument of Counsel — Damages.
    Remark of counsel that the jury might consider “the fatherly care the child was entitled to receive,” “up to the date it was twenty-one years of age,” in estimating pecuniary loss to child by wrongful death of father, held legitimate argument.
    Appeal from District Court, Hill County; Horton B. Porter, Judge.
    Suit by Mrs. John Anderson, on her own behalf and as next friend of Floyd Anderson, a minor, against the St. Louis Southwestern Railway Company of Texas, to recover for the wrongful death of John Anderson. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    E. B. Perldns, of Dallas, and Scott & Ross, of Waco, for appellant.
    Shurtleff & Cummings, of Waco, for ap-pellees.
   TALBOT, J.

The appellee Mrs. John Anderson, the surviving wife of John Anderson, deceased, in her own behal'f and as next friend for Floyd Anderson, the minor child of herself and the said John Anderson, brought this suit against the appellant to recover damages sustained by them on account of the death of the said John Anderson occasioned by the acts and negligence of the servants of appellant in propelling the locomotive attached to one of its trains against the hack of the said John Anderson at Hillsboro, Tex., causing the said Anderson to be thrown from the seat of said hack to the ground, alleging that the injuries resulting from said acts of appellant’s servants and fall caused the death of the said John Anderson; that the appellant’s servants in charge of said locomotive and train discovered the peril of the said John Anderson in time to have avoided striking his hack by the use of, the means at their command, but failed to use the care required of them by law to do so. The defendant pleaded a general denial, and specially that the deceased, John Anderson, was engaged in driving a hack, and habitually met the incoming passenger train in the city of Hills-boro, where the accident is alleged to have taken place, and that he would and did leave his hack standing with the rear of the same near the defendant’s railway track, by and over which said locomotive and passenger coaches were moved in arriving at the depot ; that the passenger coaches would pass within a few inches of the rear of his hack; that on the occasion of the alleged injuries, immediately preceding the arrival of the defendant’s passenger train, and as it approached the passenger depot, the said John Anderson drove his hack and team to defendant’s depot, turned his team so they would face east, with the rear of his hack within a few inches of the east rail of defendant’s railway track, over which its locomotive and passenger train complained of by plaintiff were moving at said time, stopping at the usual and accustomed place where deceased was in the habit of stopping; that as the train in question approached the depot •and the deceased’s hack, the deceased at the time being upon the driver’s seat towards the front end of the hack, with the lines in his hands, managing the horses hitched to the hack, said horses became frightened at the approach of an automobile, and suddenly caused the hack to move backwards, so that the rear wheels thereof came in contact with the “rear stirrup and east end of the wooden pilot beam on defendant’s engine,” which contact was so sudden that it was impossible for the engineer operating the locomotive to stop the same before striking and smashing the rear wheel of the hack; that the deceased either jumped off said hack or fell therefrom to the ground; that it was dark at the time of the accident; that the engineer was in the cab on the right-hand side of the locomotive, and the deceased was on the left-hand side of the railroad track; that, on account of the length and size of the boiler of the locomotive, the engineer could not see what was transpiring on the east side of the track, and did not see deceased’s hack or team after deceased stopped at his usual and customary place, “and where, had said hack remained, it would have been entirely safe from any injury by defendant’s locomotive or train.” Appellant further alleged that the deceased, John Anderson, was guilty of contributory negligence in leaving his hack, with the team hitched to it, so close to appellant’s railroad track and passing trains, with full knowledge of the disposition of said horses and the probability of their becoming frightened at the approach of automobiles or vehicles of any kind; that appellant’s employes relied upon the said Anderson to place his hack at a sufficiently safe distance from its track to permit the passage of its locomotive, and to take such precautions as were necessary to prevent his team frpm backing the hack so as to come in contact with its locomotives; that, as the locomotive and train causing the alleged injury to the deceased approached the station at Hillsboro, the engineer was at his post of duty on the right-hand side of the locomotive, “which was the opposite from the location of said hack, and looking forward to see that the .track in front of his locomotive was clear, as shown by his headlight,” which threw a light immediately forward and directly on the track in front of the locomotive, and had no knowledge whatsoever of the movement of the deceased’s hack or team, and no knowledge that the hack was being backed until the accident occurred, at which time he immediately applied his air and stopped the engine in a few feet.

The case was submitted upon special issues, and the jury found that the deceased, John Anderson, was in a position of imminent peril before defendant’s train reached the point where his hack was situated; that such perilous position was known to the” servants of defendant in charge of the locomotive that struck the hack; that said servants knew of the imminent peril of the deceased in time to have stopped said locomotive and train, by the use of the means at their command, with safety to themselves and persons on the train, and avoided injury to the deceased. The jury further found, in answer to questions propounded by the co.urt, that the failure of appellant’s servants to stop the locomotive and train before striking the deceased’s hack was negligence, and that such negligence was the proximate cause of the death of the deceased, Anderson; that the collision or striking of the deceased’s hack was not an unavoidable accident; that the deceased, John Anderson, could not, after he was in imminent peril, have extricated himself from such peril; that $4,500, if paid in cash now, would fairly compensate Mrs. John Anderson for the pecuniary loss sustained by her on account of the death of her husband, and that $3,000, if so paid, would compensate Floyd Anderson for the pecuniary loss sustained by him on account of the death of his father, until he arrived at the age of 21 years. Upon the foregoing findings judgment was rendered in favor of appel-lees, respectively, for sums, stated, and, appellant’s motion for a rehearing having been overruled, it appealed.

Appellant presents, first, what it terms “Appellant’s Assignment of Fundamental Error.” By this assignment it is asserted, in substance, that the district court was without jurisdiction to hear and determine this cause, and hence this court has not jurisdiction to entertain the appeal, because the father of the deceased, who he left surviving him in addition to the appellees herein, was not a party to the suit, nor was the suit brought for his use and benefit. The alleged fact that the. deceased left surviving him his father does not appear in any way in the record sent to this court. The only way appellant seeks to establish and show such a fact is by ex parte, affidavits taken and filed for the first time in this court long after the appeal was perfected and the transcript sent here. A fundamental error is one apparent upon the face of the record. The affidavits referred to constitute no part of the record in this cause, and the fact, if it be a fact, that the deceased, John Anderson, left his father surviving him not appearing from the record, the error charged and sought here to be assigned is not fundamental. The matter called to the attention of the court in the assignment is not jurisdictional, but a non-joinder of parties, and the affidavits filed here to show the want of a necessary party to the suit cannot be considered for that purpose or for any other purpose. Had the evidence in the trial of the case developed the fact that the deceased had a father, “the proceedings should have been arrested until he was made a party, or the petition so amended that the suit would proceed for his use as well as that of the other beneficiaries.” Railway Co. v. Culberson, 68 Tex. 664, 5 S. W. 820. It was not, however, disclosed by the evidence introduced in the trial court that the deceased had a father. Nor did appellant, by plea in abatement or by any form of objection whatever, complain of the nonjoinder of the father, and suggest or urge that the suit be arrested until he was made a party or included by proper aver-ments in the benefit of the action. It not being apparent of record that the deceased left his father surviving him, appellant is in no position to urge in this court his non-joinder as a party to the suit, and the assignment under consideration will be overruled. Illustrative of the correctness of this ruling are the following cases, which hold that if the nonjoinder of parties is not apparent of record the question cannot be raised by demurrer: March v. Walker, 48 Tex. 372; Cotton Press Co. v. Bradley, 52 Tex. 587.

The first assignment of error touching the merits of the case is, in substance, that the verdict of the jury is contrary to the law and the evidence, in that there was no evidence that the death of the deceased, John Anderson, was caused by the appellant, since there was nó evidence that his death resulted from the fall complained of in appellees’ petition. We do not concur in this view of the evidence. We think the evidence contained in the record sufficient to show that the death of John Anderson was the result of injuries received in the accident mentioned in the petition. The witness Louis Cliett, who saw the accident, among other things testified that the pilot beam in front of the engine struck the rear wheels of Anderson’s hack, and “tore up the left hind wheel, and knocked Anderson, whirling him off on the ground”; that his side hit the ground near the edge of the railroad track, and that the ground was hard where he fell. He further said that Anderson laid there on the ground after he was knocked off his hack until he was picked up; that he (Anderson) did not get up himself; that he (witness) left after Anderson was picked up, and that when he left Anderson did not seem to be conscious, but seemed to be gaining consciousness. It was shown by another witness that he saw Anderson that evening before the accident, and again saw him that night about 10 o’clock after the accident, at his home in bed;' that he seemed to be suffering pain at that time, and died about 48 hours after the accident; that so far a^ he knew Anderson never left the bed after he was taken there, soon after he was injured, until he died. E. B. Phelps, an undertaker, testified that he was called on after Anderson’s death to prepare the body for burial; that lie undressed him, and found that his side "was distended a good deal, and the right side sunk in, as though it was mashed in, and on his back, along about the lumbar region, or just in the pit of the back, was a dent about the size of your thumb and about a quarter of an inch deep”; that the left side was discolored, but that the right side was not. Mrs. John Anderson, the wife of the deceased, testified:

“He [meaning John Anderson] came home to supper about 6 o’clock. I walked down to the street with him as he was going to the barn. I next saw him about 9:80 or 10 o’clock, at home. He walked home, so far as I know, and he staggered in the house, and was complaining when he got there. I helped him undress, and put him to bed, in about two or three minutes after he got home, and he remained in bed from that time until his death. He got home between 9 :30 and 10 o’clock Friday night and died Sunday night following. I noticed when he undressed the Friday night he came home, just after he was injured, and he had a sunk place in his right chest. Before that injury had not had that condition, but had always been strong and healthy before that time. I had never seen the sunk-in condition, in his right chest before that night.”

Hr. S. F. Jones testified:

“I saw him [John Anderson] that night after he died, but not as an attending physician on him. I did not make a close examination, but saw the right chest was crushed in about the region of the third or fourth rib, and the left chest was very much congested and dark, in bad condition, and there was a place in the back on the left side. The injuries I saw on his body were such as would probably produce death.' I was there when the undertaker undressed him. I observed a crushed-in condition on the right chest, and a swollen condition on the left side of the chest, and very dark and very much swollen. The left chest was dark and swollen and very much congested, and the right chest was sunk in about the region of the third and fourth rib. I don’t know if it was crushed in or not. I don’t know how long that condition had existed there, and don’t know what caused it.”

There is evidence in. the record tending to show that the injuries received hy the deceased from being thrown from his hack by the collision with appellant’s locomotive were slight; but, on the other hand, there is ample evidence to sustain the jury’s finding that they were serious and resulted in Anderson’s death.

Appellants assignments of error, from the fifth to the twelfth, inclusive, are grouped in the brief, and relate to the issue of discovered peril submitted to the jury hy the court’s charge, and the substance of them is that the evidence fails to show any facts which constitute a foundation for the doctrine of discovered peril, since the undisputed evidence shows that the deceased was not in a position of peril until the very instant of the accident, and appellant’s engineer was at the time of the alleged injury in full charge and operation of the engine in question, and there is no evidence that “he ever at any time saw the deceased or the hack upon which he was situated, either before, at the time, or after the accident,” and since there is no evidence which shows that either the appellant’s engineer or fireman realized that the deceased was in imminent danger of suffering any injury at the time and place mentioned in the appellees’ petition. Under these assignments the appellant advances several propositions which it is assumed embody the principles of law upon the subject of discovered peril. These propositions will not be copied into this opinion, and we need not stop to consider whether or not all the views expressed in them are correct. It is sufficient, we think, to state what we understand to be the established rules of law upon the subject by our decisions. It is the settled law of this state that, if those operating a railway engine discover the peril of one in danger upon or near the railroad track in time to avoid injuring him, a new duty is imposed of using every means consistent with the safety of the engine and those operating it to avoid striking and injuring him, and a failure so to do would render their employer liable, notwithstanding the injured party may have been guilty of contributory negligence in being exposed to the peril. The principle, however, has no application, in the absence of actual knowledge, on the part of the person inflicting the injury, of the peril of the party injured, in tinie to avoid the injttry by the use of the means and agencies then at hand. If he had no such knowledge the new duty was not imposed, though it he clear that by the exercise of reasonable care he might have acquired same. So that the burden of proof is upon the party seeking to recover for a breach of such new duty to establish, not that the operatives of the engine might, by the exercise of reasonable care, have acquired such knowledge, but that they actually possessed it. Railway Co. v. Breadow, 90 Tex. 26, 36 S. W. 410.

It was not necessary to sustain a charge of negligence on the part of the appellant, on the doctrine of discovered peril, that its operatives of- the engine that struck John Anderson’s hack actually knew or realized that injury .would result to the said Anderson if the train was not stopped. The duty to use the means at their command to stop the train with the view of avoiding injury to him instantly arose when they discovered, if they did so, that he was in a position of such danger as that he would probably be injured if the train was not then stopped. Railway Co. v. Aston, 179 S. W. 1128.

But there seems to he in the case little or no controversy as to the law of discovered peril. The question, tersely stated, is, was the evidence bearing on that issue sufficient to authorize its submission to the jury? We have reached the conclusion that' the question should receive an affirmative answer, notwithstanding the positive testimony of the operatives of the locomotive in question is to the effect that they did not discover the position and peril of the deceased until the instant of the collision, and too late to stop the engine and avoid striking his hack. It is not incumbent upon the jury to accept all the testimony of any witness, but’they may believe'and accept a portion of it, and disbelieve and reject the remainder, or they may discredit and discard all of it, if they do not act arbitrarily and without any reason for so doing. It is their peculiar province to pass upon the credibility of the witnesses, and determine the weight, if any, to be given to their testimony. Again, it is not essential that the issue of discovered peril be raised by direct evidence. It may be done by circumstantial evidence alone, and, as above indicated, notwithstanding there is positive testimony denying the existence of the facts necessary to^establish such issue. The evidence is practically without dispute, or amply sufficient to show, that the railroad track of appellant was straight for about the distance of two blocks in approaching the depot at Hillsboro, where the accident resulting in Anderson’s injury and death occurred, and that appellant’s employes in charge of the engine and train which struck the deceased’s hack were keeping a lookout; that the engine was equipped with a strong, bright light, which illuminated the place where the deceased’s hack was standing and the railroad track for some distance beyond the depot. It was also shown that the de? ceased’s hack was standing at first within 2 or 3 feet of the track, and was backed onto the track by his frightened team when the train was at least 150 feet away. The engineer testified that at the time of the collision he was sitting on the right-hand of the engine, which was the west side, and in charge of the engine; that from his position at the time of the collision he could not see Anderson’s hack because the boiler of the engine was between him and the hack; that he did not see Anderson, the deceased, at the time of the collision, and did not know what was said and done. He further testified, however, that previous to the collision, at a distance of from 100 or more feet from the place of the accident, he saw Anderson’s hack crossing the railroad track from the west to the east side, and stop at a point where the hack cleared the train, and that when he last saw the hack before the collision it was in the clear; that he saw Anderson just a few minutes after the collision; that he was then on the east side of the track and some closer to it when he saw the hack before the accident; that he (Anderson) was trying to regain his footing when he saw him, and that Conductor Wilks was assisting him to his feet; that he did not talk to Anderson, This witness further testified'that there were people at the depot, but he could not estimate how many; that he could not say how close they were to the railroad track, but that they were far enough off to clear the train. The witness Cliett testified, without contradiction, that the train in approaching the depot when the accident happened was running about 15 or 16 miles an hour; that the rear wheels of Anderson’s hack were at this time east of the railroad track, clear of the track 2 or 3 feet; that Anderson’s horse hitched to the hack on the right-hand side was nervous and cutting up; that Anderson was trying to control the team, but it backed the hack onto the railroad track anyway. He further testified that at the time the horses were cutting up, and Anderson trying to control them, he saw the train approaching, and that it was then 50 yards, or 150 feet, away; that when the hack got back on the railroad track there was nothing to prevent the persons on the engine from seeing the hack at that time; that there was a headlight on the engine, and that “it was light where John Anderson was from the electric light close by there shining.” He further said:

“At the time I saw Anderson’s team in that frightened condition, I looked down the track and saw the train coming. I could see one man on the engine on the left-hand side next to me. The train was going south. I couldn’t say which way he was looking, but his face was forward— the way the train was going. Yes; John Anderson and his hack were north of the depot.” ,

The witness John Evans testified, without contradiction, that he had been a locomotive fireman for a number of years, and that he had been an engineer for nine years; that a train such as the train in question,,, •running at the ■ rate of 15 or 16 miles an hour, could have stopped in from 20 to 25 feet; and that such a stop could be made with safety to the passengers and train employes. The engineer testified that when he discovered there had been a collision he stopped the train in a few feet.

Erom the facts and circumstances shown by the foregoing testimony we think the jury had the right to infer, as they did, that the operatives of appellant’s engine discovered the deceased, Anderson, in a position of peril in time, by the use of the means at their command, to have avoided injury to him. The evidence, as has been seen, discloses that the railroad track, in the direction from which the train was approaching, was straight for a distance of about two blocks from the depot. The engine was equipped with a strong, bright headlight. Besides, the place where Anderson stopped his hack was lighted by an electric light near by. Wlhen the engine was still 150 feet away Anderson’s team began backing the hack onto the railroad track. At this time, according to the undisputed testimony of the witness Oliett, the fireman on the engine was sitting with “his face forward the way the train was going.” That the fireman was looking in the direction of the depot is shown by his own statement to the effect that, as the train approached the depot, he looked out the window and saw the usual crowd of people waiting at the depot, some walking and others in vehicles, and he denied, however, that he saw the deceased or his hack. Appellant in its answer alleged that, as the train approached the depot at Hillsboro, the engineer was at his post of duty on the right-hand side of the locomotive, and looking forward to see that the track was clear; and the engineer testified that as the train approached the depot he saw people there, and when a hundred feet or more from the place of the accident he saw Anderson’s hack cross the railroad track and stop on the east side, near the track. Cliett testified that when the train was about 150 feet from the place of the accident the hack was backed onto the track. Clearly, the jury, under the facts and circumstances shown, had a right to disbelieve the testimony of the engineer and fireman to the effect that they did not see Anderson and his hack at or about the time the hack was being backed onto the railroad track, and did not discover that Anderson was in danger of being struck by the engine until almost at the very instant of the collision, and to draw the reasonable inference that they did discover his peril when the engine was about 150 feet distant from the place of the accident, and in time, by the use of the means at their command, to have avoided the accident. Railway Co. v. Finn, 107 S. W. 94; Railway Co. v. Tinon, 117 S. W. 936; Brown v. Griffin, 71 Tex. 657, 9 S. W. 546; Sanches v. Railway Co., 88 Tex. 118, 30 S. W. 431. In the case of Brown v. Griffin, supra, it is said:

“It is complained that the court erred in charging, in effect, that the plaintiff could recover, although he put himself in a position of danger, if the person in charge of the engine saw him in time to warn him of danger by giving the signal and failed to do it. It is claimed that there was no evidence to warrant this charge. Upon the theory that the jury were bound to believe the fireman, who swore he did not see plaintiff, this may be true. But the proof is that he was upon the engine operating it, and that there was nothing in front of it to obstruct his view of the track. The jury might have presumed from this that ho did see the plaintiff. Is the court bound to assume that this presumption is wholly destroyed because a witness swore to the contrary?”

It is assigned that the verdict of the jury is excessive. Appellee objects to a consideration of the assignments on the ground that they are too general. The form of the assignments is: “The verdict of the jury as to Mrs. John Anderson is excessive.” “The verdict of the jury as to the minor Floyd Anderson is excessive.” The objection should be sustained. It has frequently been held in this state that similar assignments are too general and not entitled to consideration. The question sought to be raised is one of fact, and appellant should have pointed out in its motion for a new trial in the court below, which constitutes its assignments of error here, wherein the verdict is excessive. This it did not do, but the. assignment is a general complaint as to the amount of the verdict. Railway v. McVey, 81 S. W. 991; Railway Co. v. Matlock, 141 S. W. 1072; Railway Co. v. Fesmire, 150 S. W. 201; White v. Wadlington, 78 Tex. 159, 14 S. W. 296; City of Galveston v. Devlin, 84 Tex. 326, 19 S. W. 395. From our investigation and knowledge of the record, however, we do not believe we would be warranted in holding the verdict excessive in respect to either of the appellees.

The special charge requested by appellant and refused by the court, and made the basis of the fifteenth assignment of error, in our opinion, furnishes no sufficient ground for a reversal of the ease. The charge is, in substance, that by “pecuniary loss” is meant such sum of money as would probably have been paid by the deceased, John Anderson, to his wife and son, or which sum or sums of money would probably have been earned by said Anderson and expended in tlie maintenance of his wife and son, and that in determining the pecuniary loss of the son the jury would only consider the time from the death of the father to the date of the son’s arrival at the age of 21 years. The special charge, it seems to us, presented an erroneous test for the determination of the amount to be allowed to appellees. Their pecuniary loss included not only such contributions from the earnings of the deceased as he might make toward their support and maintenance, but also the value of his attention, care, and counsel to' his wife, and the value of his intellectual and moral advice, education, and training to his son. Railway Co. v. Higginbotham, 173 S. W. 482. Besides, it does not appear that the refusal of the special charge was calculated to, and probably did, cause the rendition of an improper verdict The jury found, in response to appropriate questions propounded to them, that it would require the respective sums awarded to appellees, “if paid in cash now,” to fairly compensate them for the pecuniary loss sustained on account of the death of the husband and father. The action of the court in permitting Mrs. Anderson, over the objection of appellant, to state that she had heard her husband advise his son, Floyd Anderson, to be a good boy, may be admitted to be error, because it did not tend to prove any issue in the case and was therefore immaterial. But it is inconceivable that the error could have prejudiced the rights of appellant; we therefore hold that it was harmless.

In discussing to the jury the amount to be awarded to Floyd Anderson, the minor son, counsel for appellees used this language: “In the case of the child you can take into consideration more than the money, but the fatherly care the child was entitled to receive from the father up to the date it was 21 years of age.” The appellant objected to these remarks of counsel, and requested the court to instruct the jury not to consider them, which request was refused, and the refusal is assigned as error. We think the assignment should be overruled. We fail to see wherein the remarks complained of could have been prejudicial to the appellant. It is true his damages were limited to pecuniary loss, but, in determining the amount of such loss, the jury had a right to consider the care, advice, and education that Eloyd Anderson might have received from his father, but for his death, up to the time he reached his majority. The remarks objected to conveyed nothing more than this to the jury, and constituted legitimate argument.

The assignments have been carefully considered, and because none of them disclose reversible error the judgment is affirmed.
      <§=3For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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source: Caselaw Access Project

author: RASBURY, J.

license: Public Domain

text:
    PENELOPE REAL ESTATE CO. v. DAWSON et al.
    (No. 8015.)
    (Court of Civil Appeals of Texas. Dallas.
    Nov. 2, 1918.)
    1. Brokers <&wkey;86(l) — Commission—Evidence.
    In an action by a broker for commissions for securing a purchaser for vendor’s lien notes owned by defendants, evidence held to warrant a finding that defendants did not undertake to secure the release of the land from a prior lien without which the purchaser would not buy the notes.
    2. Appeal and Error <&wkey;1062(l) — Harmless Error — Submission oe Defense Not Pleaded.
    In an action for commissions for securing a purchaser for vendor’s lien notes, where defendants pleaded a general denial, held, in the absence of objection, that the submission of the defense that defendants did not undertake to secure a release of a prior lien without which the purchaser would not buy was harmless error, not warranting reversal.
    8. Trial <&wkey;349(3) — Submission — Special Issues.
    Notwithstanding Vernon’s Sayles’ Ann. Civ. St. 1914.- art. 1992, the trial court may, under article 1984a, submit a case upon special issues without request by either party.
    4. Appeal and Erbob &wkey;>975 — Misconduct-Province oe Trial Court.
    Whether there has been misconduct of the jury is for the determination of the trial judge, whose discretion is ordinarily controlling in the absence of a showing of abuse.
    Appeal from Hill County Court; R. T. Burns, Judge.
    Action by the Penelope Real Estate Company against R. L. Dawson and others. From a judgment for defendants, plaintiff appeals.
    Affirmed.
    J. Webb Stollenwerck, of Hillsboro, for appellant.
    F. E. McKee, of Hillsboro, for appellees.
   RASBURY, J.

Appellant sued appellees in the court below for $400, of which $200 was alleged to be due for commissions ap-pellees agreed to pay appellant for securing for them a purchaser for approximately $10,-000 of vendor’s lien notes owned by appellees, and $200 of which was alleged to . be the amount appellees agreed to pay one Stanis-lav, the prospective purchaser of the notes, in order that he might secure his release from a pending deal with another. Appellees, after certain preliminary pleas not necessary to enumerate, pleaded the general denial. Upon .conclusion of the evidence, the court submitted to the jury a single special issue of fact, hereinafter referred to, and upon the jury’s answer entered judgment for appel-lees for costs, from which this appeal is prosecuted.

It appears from the evidence that, pri- or to the transactions which form the basis of the present controversy, appellees sold one Cocek 320 acres of land in Hill county, consisting of two tracts of 160 acres each. In the deed the vendor’s lien was retained against the land as a whole to secure payment of notes approximating $20,000, and constituting a part of the purchase price of the land. Some of the notes were due, arid Cocek was unable to pay them. Appellees were in urgent need of money and agreed to pay appellant $200 if he could find a purchaser for about $10,000 of said notes who would accept as security one of the 160-acre tracts. Appellants did induce one Stanislav to agree to purchase the notes upon condition that appellees would pay an additional $200 required to secure Stanislav’s release from a pending loan or trade, and secure releases of certain liens thereon, presently referred to. While appellees demurred to the additional expense, they finally agreed to pay same. Against the land appellees sold Cocek were two liens, one in favor of one Hunton for $16,000, which also covered- other lands, and one in favor of Pearsons & Taft for $2,600, covering 160 acres of the Cocek land. To this point the facts are not in dispute. Stanislav demanded a release of the Hunton lien. Concerning such release, the evidence of appellant tends to show that appellees unconditionally agreed to secure the release from Hunton as to the 160 acres of land, while the evidence of appellees tends to show that the agreement to pay commissions was contingent upon their securing such release from Hunton. Hunton declined to partially release the land securing payment of his debt. After Hunton’s refusal to partially release the land, appellees made arrangement with one Cochran of Kansas City to take over and rearrange the Hunton debt. In this transaction Cochran took over the Cocek debt on the 320 acres, paying to appellees Cocek’s debt.

The evidence so standing, the court submitted to the jury one issue of fact which in substance was, did appellees agree to procure from Hunton a release of his lien on the Co-' cek lands, to which the jury replied that they did not.

By the first assignment of error, appellant asserts that such finding is without support in the evidence. R. L. Dawson testified in substance that Stanislav refused to take up the notes unless the additional $200 to secure his release from the pending trade was advanced and a release secured from Hunton, and that, while he thought the requirement that he should pay the $200 was a “holdup,” he would pay it and carry out the trade provided he could secure release from Hun-ton, but that he did not believe he could secure it for the reason that he had refused to similarly release other portions of the land •covered by his mortgage; that he in good faith attempted to secure the release from Hunton, who refused to allow it, and whereupon he notified appellant.

The foregoing is but a brief statement of the testimony of R. L. Dawson on the issue stated, but it will readily be seen that it is sufficient to sustain the finding of the jury, as would have been that of the appellants to have sustained a contrary finding.

Complaint is also made of the action of the court in submitting the issue of fact he did submit on the ground that appellees pleaded only the general denial and did not specially plead their version of the contract. While we think appellees should have, in order to render testimony in support of it admissible, pleaded their version of the contract, yet in the absence of any objection to the admission of the testimony on that issue, and in the absence of any objection to the submission of the issue on the ground that the evidence sustaining such issue was admitted without sufficient pleading, we conclude we ought not to reverse the judgment on that ground, since it does not appear that such action was reasonably calculated to and probably did cause the entry of an improper judgment.

Appellant also contends that the court erred in submitting the case to the jury upon special issues in the absence of a request from either side that he do so. The court may, by express provision of the practice acts, submit the case upon special issues without the request of either party. Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1984a;. Acts 1913, Reg. Sess. p. 113, § 1. Formerly the case could be submitted on special issues only upon request of one or all parties. For some reason the old act is carried in Vernon’s Sayles’ Civ. Stats, as article 1992.

Complaint is also made that there was misconduct on the part of the jury. The complaint is based upon the evidence of one of the jurors. A careful analysis of this juror’s evidence will not support such a 'finding. Further, whether there has been misconduct of the jury is for the determination of the trial judge, whose discretion in that respect is ordinarily' controlling, in the absence of any showing that he abused his discretion. There is no such claim made.

Finding no reversible error in the record, the judgment is affirmed.
      <@=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MOURSUND', J.

text:
    CITY OF SAN ANTONIO v. SPEARS et ux.
    (No. 6073.)
    (Court of Civil Appeals of Texas. San Antonio.
    Oct. 30, 1918.
    Supplemental Opinion, Nov. 4, 1918.
    Rehearing Denied Dec. 4, 1918.)
    1. Municipal Corporations <@=5434(5) — Special Assessments — Liens upon Homesteads.
    Special assessment for paving under Acts 31st Leg. (2d Ex. Sess.) e. 14, § 7, providing that no power is given to fix a lien against any property exempt by law from sale under execution, created no lien upon the homestead premises of a property owner and her husband.
    2. Municipal Corporations <§=>586 — Special Assessments — Personal Judgments— “Owner.”
    Acts 31st Leg. (2d Ex. Sess.) e. 14, providing for the assessment of the cost of improvements against abutting owners, and that the cost shall be a. personal liability of the owner, includes, within the term “owner,” married women.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Owner.]
    3. Statutes <S=»178 — Construction—Particular Words — Masculine and Feminine Genders.
    In view of Rev. St. art. 5502, subd. 3, providing that the masculine includes the feminine, no inference can be drawn from the use of the masculine gender in Acts 31st Leg. (2d Ex. Sess.) c. 14, § 8, that married women are not included among those personally hable for a special assessment.
    4. Municipal Corporations <@==>488, 489(5)— Special Assessments — Homestead Claims —Estoppel.
    Since the homestead is protected under the Constitution, failure of homestead owners to appear and contest special assessments for public improvements does not estop them from interposing a plea of homestead.
    5. Municipal Corporations <@=487 — Special Assessments — Erroneous Assessment — Joint Assessment.
    A married woman whose property was assessed for a special improvement could not complain that her husband, who had no interest in the property, was joined with her in the assessment, the error being a mere irregularity which, not having been urged at the proper time, will not be permitted to invalidate the certificate.
    6. Municipal Corporations <@=406(2) — Special Assessments — Power—Delegation by Legislature.
    Acts 31st Leg. (2d Ex. Sess.) c. 14, providing for the assessment of the cost of public improvements against abutting property, is not invalid as a delegation of legislative power.
    Appeal from District Court, Bexar County; J. T. Sluder, Judge. .
    Action by the City of San Antonio against Noa Spears and wife. Judgment for defendants, and plaintiff appeals.
    Affirmed in part and in part reversed and judgment rendered.
    R. J. McMillan, of San Antonio, L. M. Dab-ney, of Dallas, Taliaferro, Cunningham & Birkhead and Augustus McCloskey, all of San Antonio, and L. H. Elewellen, of Dallas, for appellant.
    Le wright & Douglas, of San Antonio, for appellees.
   MOURSUND', J.

The city of San Antonio sued Noa Spears and his wife, May H. Spears, for the use and benefit of the Texas Bitulithic Company, to collect a certain assignable certificate of special assessment for $228.65, issued by said city on May 10, 1915, to said company, for the pro rata part of the cost of paving a street in said city' on which defendants have their residence. The certificate recites that the assessment was levied against the real estate on which defendants resided, and also against May H. and Noa Spears as a personal liability.

The case was tried on an agreed statement of facts, and judgment rendered in favor of defendants.

The findings of fact of the trial court are as follows:

“(1) I find that on December 18, 1913, the city of San Antonio adopted and put into effect what is known as the ‘Procedure Ordinance,’ providing for the levy and collection of special assessments for street paving purposes against property owners of abutting property, and for fixing a lien therefor against such abutting property. Said ordinance comprehensively provides for the giving of notice to the property owners by publication and through the mail, and every detail for the letting of street paving contracts, and the fixing of the lien and personal liability to secure the payment of the assessment for the cost thereof, all as outlined in articles 1006 et seq. of the Revised? Statutes of 1911.
“(2) Said ‘Procedure Ordinance’ follows the plan of what is known as ‘the front-foot rule,’ and is based entirely on the Acts of 1909, being title 22, chapter 11, of the Revised Civil Statutes of 1911, the provisions of said act having been adopted by a vote of the people of the city of San Antonio at an election held on June 30, 1913.
“(3) The charter of the city of San Antonio was amended by a vote of the people at an election held on the 24th day of February, 1914, and section No. 90 of the amended charter, giving the city exclusive control and power over the sti'eets of-the city, etc., contains this proviso: ‘Provided, that nothing in any of these amendments contained shall in any manner affect the powers conferred upon the city of San Antonio by the adoption at an election heretofore held of chapter 11, title 22, of the Revised Statutes of Texas of 1911.’ The charter of the city of San Antonio makes no other reference and contains no other provision in regard to the levying of special assessments for street paving purposes.
“(4) I find that the .city of San Antonio levied a special assessment, payable in installments, aggregating the sum of $228.65, against defendants, Noa Spears and May H. Spears, for street improvement, and that a certificate therefor was duly issued, under the provisions of the ‘Procedure Ordinance’ aforesaid, and that every provision of said ordinance, including the publishing and mailing of notice to said defendants of a time and place for hearing thereon, was fully complied with, and that at the time this suit was instituted the first of said installments was due and unpaid, and by reason of said default the whole of said indebtedness was matured and became due and payable, including a reasonable attorney’s fee, which is here fixed at $50, and interest, all as alleged in plaintiff’s petition.
“(5) I find that a contract was let by the city of San Antonio to the Texas Bitulithic Company, a. corporation, for the benefit of which this suit is brought, under the provisions of said ‘Procedure Ordinance,’ for the street paving aforesaid, and that said contract was fully completed and the work accepted by the city of San Antonio on or about the 10th day of May, 1915.
‘‘(6) I find that May H. Spears (wife of Noa Spears) was married prior to the initiating of any of the steps looking to the levying of said special assessment, and that she owned at all of said times, m her own separate estate, the property described in plaintiff’s petition against which a lien is sought, and that said property abuts upon the street which was paved by said Texas Bitulithic Company as aforesaid, and that said property was at all of said times occupied and used by defendants Noa Spears and wife as their residence homestead.
“(7) Neither of the defendants appeared before the city council at the hearing provided for in connection with said street paving assessment, nor did they, or either of them, institute any suit at any time to restrain or set aside any of said proceedings.”

The parties embraced in their agreement a statement of the only issues of law to be determined by the court, as follows:

“(1) The premises in controversy having been at all the times herein set forth occupied by said defendants as a place of residence for themselves and their family, is the plaintiff herein entitled to a foreclosure of an assessment lien thereon under the terms of said ordinance of assessment and of the said certificate?
“(2) The said defendant May H. Spears having been at all times herein mentioned a married woman, and the premises herein mentioned being her separate property, is the plaintiff entitled to a personal judgment against the said May H. Spears upon the personal claim of liability attempted to be fixed against her by the terms of said ordinance and certificate?
“(3) Neither of defendants having filed any written contest at the hearing before the city council of the city of San Antonio given to owners of property abutting upon said Woodlawn avenue, hereinabove described, and not having appeared at said hearing or in any way contested said assessment, and said defendants not having filed within 20 days after the said hearing, and after the ordinance of assessment, any suit or action contesting the said assessment, are they, or either of them, now estopped to interpose a plea of homestead herein?
“(4) The said defendants having failed to file any written or other contest or in any wise to appear and contest said assessment at the said hearing, and not having within 20 days thereafter, or within 20 days after said ordinance of assessment, brought any suit or action to- contest the same, are they estopped from setting up the coverture of the said May H. Spears as a defense to the personal liability against her?
“(5) The only issue presented with reference to the validity of the city ordinances of San Antonio is whether or not the same are unconstitutional and without authority of law by reason of the same having been based upon the statutory provisions of the act of 1909, put into effect by the people of the city of San Antonio, in contravention of the rule which inhibits the Legislature from delegating its legislative authority.”

We will discuss the issues in the order they are presented in the agreement.

The plaintiff acquired no lien upon the premises described in the certificate for the reason that the same, constituted the homestead of appellees, and under the express provision of section 7 of the act of- May 10, 1909, by virtue of which the improvements were made, it is provided that no power is given to fix a lien against any property exempt by law from sale under execution.

Tbe decision of the second issue involves the construction of the act Of 1909 (Acts 31st Peg. [2d Extra Sess.] c. 14), above mentioned, which appears as chapter 11 of the Revised Statutes of 1911. The caption of the act is as follows:

“An act to authorize incorporated towns, cities and villages in the state of Texas, to construct permanent street improvements and assess part of the cost thereof against the owners of property abutting upon such improvements and their property, and against the owners of railroads or street railroads occupying streets or highways improved and their property, and to provide for the enforcement and collection of such assessments, and to provide for the submission hereof to a vote of the resident property taxpayers who are qualified voters of such towns, cities and villages, and declaring an emergency.”

"We will not copy the entire act in this opinion, but will copy those sections and parts of sections having the most bearing on the question to be decided:

“Sec. 4. That the cost of making such improvements may be wholly paid by the city, or partly by the city and partly by owners of property abutting thereon: Provided, that in no event shall more than three-fourths of the cost of any improvement, except sidewalks and curbs, be assessed against such property owners or their property; but the whole cost of construction of sidewalks and curbs in front of any property may be assessed against the owner thereof or his property.”
“Sec. 6. Subject to the terms hereof the governing body of any city shall have power by ordinance to assess the whole cost of constructing sidewalks or curbs, and not to exceed three-fourths of the cost of any other improvement, against the owners of property abutting on such improvement and against their abutting property benefited thereby, and to provide for the time and terms of payment of such assessments and the rate of interest payable upon deferred payments thereon, which rate of interest shall not exceed 8 per centum per annum, and to fix a lien upon the property and declare such assessments to be a personal liability of the owners of such abutting property, and such governing body shall have power to cause to be issued in the name of the city assignable certificates, declaring the liability of such owners and their property for the payment of such assessments, and to fix the terms and conditions of such certificate. * * *
“Sec. 7. Nothing herein contained shall be construed to empower any city to fix a lien by assessment against any property exempt by law from sale under execution, but the owner of such exempt property shall nevertheless be personally liable for the cost of improvements constructed in front of his property which may be assessed against him. The fact that any improvement is omitted in front of exempt property shall not invalidate the lien of assessments made against other property on the highway improved, not so exempt. The lien created against any property, or the personal liability of the owner thereof, may be enforced by suit in any court having jurisdiction or by sale of the property assessed in the same manner as ■may be provided by law for the sale of property for ad valorem city taxes. The recital in any deed made pursuant to such sale, that all legal prerequisites to said assessment and sale have been complied with, shall be prima facie evidence of the facts so recited and shall in all courts be accepted without further proof.
“See. S. No assessment of any part of the cost of such improvement shall be made against any property abutting thereon or its owner, until a full and fair hearing shall first have been given to the owners of such property preceded by a reasonable notice thereof given to said owners, their agents, or attorneys. * * * But no assessment shall be made against any owner of abutting property or his property in any event in excess of the actual benefit to such owner in the enhanced value of his property by means of such improvements as ascertained at such hearing.”
“See. 10. Any property owner against whom or whose property any assessment or reassessment has been made shall have the right within twenty days thereafter to bring suit in any court having jurisdiction to set aside or correct the same or any proceeding with reference thereto, on account of any error or invalidity therein. But thereafter such owner, his heirs, assigns or successors shall be barred from any such action, or any defense of invalidity in such proceedings or assessments or reassessments in any action in which the same may be brought in question.”

Emergency clause:

“The fact that many cities have no general funds out of which street improvements can be constructed and no charter powers under which the cost thereof can be collected from owners of abutting property benefited thereby or from public service corporations occupying the streets, and the fact that such improvements are urgently needed, and that the citizens of many cities are anxious to obtain the benefits of this act, create an emergency. * * * ”

The language of the act is' comprehensive enough to include married women as owners, and as it is designed to enable cities to make much needed improvements inuring to the general welfare of the public, and peculiarly.' benefiting those whose property abuts on the streets to be improved, it is natural and just that all property owners who derive benefits should share in paying for the improvements, especially as the assessment cannot exceed the benefit derived by the owner. No good reason can be urged why all owners should not be treated alike, provided the Legislature has the power to do so, and it must be conceded that the Constitution does not prohibit the Legislature from authorizing such assessments to be levied against married women and their property. Prior to the passage of the act the Supreme Court had held, in the case of Higgins v. Bordages, 88 Tex. 458, 31 S. W. 52, 803, 53 Am. St. Rep. 770, that such assessments could not be made a lien against homesteads. The Legislature, having that decision in mind, in section 7 expressly excepted exempt property, but provided that the owner should be personally liable for the assessments; thus undertaking to equalize the burden of making the improvements as much as it could under the handicap imposed by the holding that under the Constitution the homestead was protected from liens for such assessments. It was evidently contemplated, however, that if. the owner of a homestead was insolvent it might be advisable not to improve the street in front of such premises, for it is provided that “the fact that any improvement is omitted in front of exempt property shall not invalidate the lien of 'assessments! made against other property on the highway improved not so exempt.” These provisions are significant, and greatly strengthen the conclusion that the legislature, by the use of the word “owners,” intended to include married women. The express mention of the exception Of homesteads precludes the idea that the Legislature had in mind another exception, namely, property owned by married women. The careful provision that omitting the improvement in front of a homestead should not invalidate the lien made against other property on the highway improved indicates that the’ Legislature contemplated that improvements would be made in front of all property except homesteads, and lends strength to the proposition that the Legislature intended to grant power to collect for improvements in front of property owned by married women.

It cannot reasonably be contended that the Legislature considered the ownership of property by married women to be of such importance as to require cities to favor property so held above homesteads, and require that the streets and sidewalks in front of property so owned should be improved without exacting any compensation therefor.,

The language of the act does not admit of a construction which would exempt married women from personal liability, but gives a lien on their property. It is therefore clear that the Legislature intended to include married women as owners, or else to make them such a highly favored class that it is inconceivable they would not in express terms have excepted them from the provisions of the act. No inference can be drawn, from the use of the masculine gender in section 8 that married women are not included, for article 5502, subd. 3, of our statute expressly provides that the masculine includes the feminine and neuter genders, and, besides, if any effect could be given to such use of the masculine gender it would be logical to hold that it excluded all women, whether married or not.

While we appreciate the theory on which the common law and statutory protection of married women against their contracts is based, we must confess that .we cannot see why the Legislature would want to exempt married women from special assessments on account of benefits to their property, and at the same time make single women pay such assessments, any more than to make a similar discrimination in the taxes upon their properties.

It appears to us that the act in question shows more clearly than any other statute passed by our Legislature on the subject of street improvements an intention to include all owners, and, if it should be held that married women are excepted from its operation, it will probably follow that all of our other statutes relating to street improvements will receive a similar construction, for all use the words “owner” or “owners” of property, and do not expressly provide that such words are intended to include married women. In this connection it is of interest to note that articles 999, 1000, 1001, 1002, 1003, 984, 855, 846, 847, 856, and 857 are taken from the same act, that of March 15, 1875 (Acts 14th Leg. [2d Sess.] c. 96), and confer various powers upon cities with respect to the “owner” or “owners” of property. The question naturally suggests itself whether, in passing the act in question, the Legislature is held to have meant to exclude married women in each instance in which it used the words “owner” or' “owners,” or whether, as to condemnation of property and assessments for failure to ■ make improvements in the interest of the public health, it meant to include married women in the term “owners,” and as to matters of street and sidewalk improvements, which inure to the benefit of the owners and to the welfare of the general public, they meant by the word “owners” all owners except married wo'men.

Article 1003 is section 130 of the act of 1875 as amended in 1909. Article 984 was amended by the 35th Legislature (chapter 184).

In the act of 1913 (chapter 17, Vernon’s Sayles’ Statutes), relating to the amendment of charters by cities of more than 5,000 population, the power to levy assessments for street improvements against abutting property, and to make same a personal charge against the owner thereof, is conferred; also to levy assessments for benefits derived from street widening; also for improvement of any river or creek. In the same act power is given to provide for a sanitary sewer system, and to require property owners to make connections therewith, and to provide for fixing a lien against any property owner’s premises who fails or refuses to make sanitary sewer [connections, and to charge the cost against the said owner, and make it a personal liability. Are exceptions in favor of married women to be read into this act in every instance where it mentions owners, or only when it deals with assessments for street improvements? Is a married woman to be exempted from liability for the expense of connecting her premises with the sewer system, or is she intended to be included, in so far as the city is authorized to assess her and her property, for expense incurred in connecting her premises with the sewer system, but not intended to be included in so far as assessments for street improvements, street widening, and improvement of rivers and creeks are authorized?

Appellees rely upon the case of Eubank v. City of Fort Worth, 173 S. W. 1003. We do not concede that the construction of the statute under consideration must be governed by the construction placed upon the Ft. Worth charter, for in the statute under consideration the Legislature named an exception in such, language as to indicate that no other exception was intended; but at the same time we believe the court erred in that ease in holding that “there should be an exception engrafted upon the charter, so as to permit the operation of the principles of the common law excluding a personal liability on the part of a married woman, in the absence of contract.” As no power exists in a municipal corporation by virtue of the common law to levy assessments for special benefits accruing to property by reason of public improvements, and it took a statute to confer such power on the city of Ft. Worth, it appears that under the common law not only married women, but unmarried women and men, could not be made liable for such assessments. The Legislature in enacting the charter undertook to change the common law, and to establish, we may infer, a just system for charging individuals who benefit by public improvements with an assessment not in excess of the benefits derived. The act purports on its face to confer such power with respect to the owners of property abutting on the highway to be improved. At common law the unmarried women and the men could contract for such improvements, and under the statute married women were authorized to contract for improvements upon their separate property. That paving in front of a lot, where the ownership of the fee extends to the middle of the street, constitutes an improvement on the lot, such as would authorize a valid mechanic’s lien upon even a homestead, is held in the case of Lewis v. Roach-Manigan Co., 184 S. W. 680.

The Legislature, in conferring the power to levy assessments, must have had in mind the proposition that persons owning property frequently refused to contract for improvements and thus rendered necessary the granting of the power to levy assessments. If any class of persons was regarded as such favorites of the law that they should not be required to respond to the public demand for improvements unless they were willing to do so by contract, it appears reasonable that the Legislature would have expressly so stated. There is no inconsistency between legislation concerning the power of married women to enter into contracts and the power of municipal governments to compel them to bear their just share of the expense of public improvements which benefit their property. It has been the policy of the law to protect the corpus of the wife’s separate property from the encroachments of the husband, but not from her just share of the burdens of government. When the common law is swept aside, which protected all persons from such assessments, and a statute is passed which subjects the owners of property in a certain city to such assessments, it is erroneous, we think, to hold that the Legislature meant every owner except married women, and base such holding upon the theory that no intention should be imputed to the Legislature to affect such rights as married women had at common law. The fact that at common law a married woman could make no contract binding herself personally, we submit, should not be presumed to have had any weight with a Legislature which was cognizant of the fact that in this state a married woman under the statute could make a contract binding herself personally to pay the sum for the paving which can be assessed against her if she is held to be included in the term “owner.”

As stated by Judge Speer (Speer’s Law of Marital Rights in Texas, § 238) the recognition of the wife’s separate identity, as an individual capable of contracting, suing, and being sued, has necessitated a further recognition of her power to bind herself by her acts and conduct in numerous instances, all of which are discussed by him in chapter 14 of his valuable text-book. In view of the status of married women in Texas, as to property rights and contractual rights, it would be strange if the Legislature considered it expedient to exempt them from paving assessments. To do so ^ould not only be unjust, but would encourage the transfer of property to married women by those seeking to escape their just burdens, and would, if held not to invalidate the law, create a system whereby the burdens of public improvements are unequally distributed. In this connection we call attention to what Judge Speer says concerning the Eubanks Case in section 141 of his work above cited.

We conclude that the act of 1909 empowered cities which adopted it to levy assessments as a personal liability against married women who owned property abutting on streets paved under the provisions of said act.

The defendants were not estopped from interposing a plea of homestead. The act confers no power to fix a lien on a homestead, whether by estoppel or in any other way, and, even if it had not stated that no power existed to levy an assessment against a homestead, the homestead would have been protected under the Constitution, and such protection could not be affected by any failure of the owners to appear and contest the proceedings.

As we have held that the power existed to assess Mrs. Spears personally for improvements made in front of the homestead owned by her, it is profitless to answer the question submitted in the fourth issue, namely, whether defendants are estopped from setting up the coverture of Mrs. Spears as a defense to the personal liability against her. In this connection, however, it may be proper to discuss the issue whether the assessment is invalid, as held by the trial court, because it was made jointly against Mr. and Mrs. Spears, and it appears that Mr. Spears owns no interest in the property. The issue thus decided appears not to have been contemplated in mating the agreement as to the issues to be decided, but, conceding that it is included, we conclude the court erred in deciding the same. If each of the parties had owned part of the property, the assessment would have been justly subject to criticism; but, as Mrs. Spears is liable for the full amount, we fail to see any reason for permitting her to take advantage of the fact that another person is made jointly liable with her for such amount. At the utmost, the supposed defect is nothing more than an irregularity, which, not having been urged at the proper time, ought not to be permitted to invalidate the assessment certificate.

The fifth issue must be answered in the negative. The ordinance and statute are valid. Riley v. Town of Trenton, 184 S. W. 345, and authorities therein cited.

The foregoing disposes of the issues proper to be considered under the agreement. The first assignment of error is sustained and the others are overruled. The cross-assignments of error are overruled.

The judgment is affirmed in so far as it provides that plaintiff take nothing by its suit as against Nba Spears, and in so far as it denies plaintiff any foreclosure of a lien; but is reversed in so far as it relates to Mrs. May I-I. Spears, and judgment rendered in favor of plaintiff against Mrs. May H. Spears for the sum of $275.15, being the amount of said certificate, with interest thereon to November 26, 1917, date of judgment below, and that said judgment bear interest from November 26, 1917, at the rate of 6 per cent, per annum.

Supplemental Opinion.

The opinion heretofore rendered in this cause, in stating the judgment rendered by this court, omitted the item of $50 attorney’s fee, agreed to as reasonable, and said opinion is amended so as to show that the judgment will be for $325.15, the amount of the certificate, interest thereon at 8 per cent, to the date of the judgment of the trial court, and attorney’s fee, $50. Said judgment for $325.15 will bear interest from November 26, 1917, at the rate of 6 per cent, per an-num.
      <@E5>For other cases see same topic and KEY-NUMBER in all Key-Numhered Digests and Indexes.


author: HIGGINS, J.

text:
    COLLIER & LOVE v. WELBORN.
    (No. 888.)
    (Court of Civil Appeals of Texas. El Paso.
    Nov. 14, 1918.)
    Appeal and Error <@=>1060(4) — Review — Harmless Error — Improper Argument.
    Where evidence warranted verdict for plaintiff, and for much larger amount than one actually returned, improper argument by attorney for plaintiff in his address to jury did not constitute reversible error.
    Appeal from District Court, Reeves County; Chas. Gibbs, Judge.
    Suit by W. C. Welborn against Collier & Love. Judgment for plaintiff, and defendants appeal.
    Affirmed.
    J. A. Buck, of Crosbyton, for appellants.
    Jno. B. Howard and Clay Cooke, of Pecos, for appellee.
   HIGGINS, J.

This is a suit by appellee upon an injunction bond to recover damages for the wrongful suing out of the injunction. From a verdict and judgment awarding damages, this appeal is prosecuted; three errors being assigned.

' The first complains of the overruling of an exception. In this action there was no error. The remaining assignments complain of improper argument by counsel for appel-lee in his address to the jury. We think the argument was objectionable, but that it presents no reversible error. Under the evidence, plaintiff was entitled to a verdict, and it was simply a question of the amount. The evidence warranted a verdict for a much larger amount than the one returned. It is apparent the objectionable argument had no improper influence upon the jury. It therefore presents no ground for reversal.

Affirmed.
      (g=3For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BOYCE, J.

text:
    PANHANDLE & S. F. RY. CO. v. KORNEGAY.
    (No. 1404.)
    (Court of Civil Appeals of Texas. Amarillo.
    Oct. 30, 1918.
    Rehearing Denied Nov, 27, 1918.)
    1. Witnesses <@=>388(10) — Impeachment — Predicate.
    In a personal injury action where it was claimed plaintiff’s mental powers had been impaired, and defendant’s witness testified that plaintiff before the injury stated that he was at times demented, it was not error to exclude further testimony of the witness that such statement was made when plaintiff was being threatened with a criminal prosecution; such fact not being necessary as a predicate to impeachment of plaintiff.
    2. Trial <@=>194(19) — Weight of Evidence-Instructions.
    In an employé’s action for injuries, an instruction, grouping the facts relied on by plaintiff as constituting negligence, and directing the jury to find for plaintiff if such facts constituted negligence, was not objectionable as on the weight of evidence.
    3. Trial <@=>296(9) — Instructions—Cure of Error.
    In an employé’s action for injuries sustained while alighting from a train, an instruction for plaintiff if the facts relied on by him constituted negligence was not erroneous, as directing a verdict without a finding of proximate cause, in view of other instructions given.
    4. Appeal and Error <@=>1067 — Harmless Error — Failure to Instruct.
    In an employé’s action for injuries in alighting from defendant’s train which failed to slow up as was its custom, it was not prejudicial error to refuse to charge more specifically as to contributory negligence, where the issues were simple and the facts suggested by the request would naturally be considered by the jury in the absence of instructions.

      5. Trial <S=»252(11) — Instructions—Assumed Risk — Applicability to Evidence.
    In a railway employe’s action for injuries sustained while alighting from a moving train which failed to stop as was customary, it was not necessary to submit the law of assumed risk as an ordinary incident to the employment, where there was no evidence thereof.
    6. Trial @=251(8) — Instructions—Applicability to Pleading — Assumed Risk.
    In a railway employe’s action for injuries sustained while alighting from a moving train, assumed risk as an extraordinary incident to the employment was properly withheld from the jury where not pleaded.
    Appeal from District Court, Lubhocli County ; TV. R. Spencer, Judge.
    Action by T. C. Kornegay against tbe Panhandle & Santa Fé Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    W. C. Reid, of Albuquerque, N. M., Madden, Trulove, Ryburn & Pipkin, of Amarillo, and Roscoe Wilson, of Lubbock, for appellant.
    W. D. Benson, of Flagstaff, Ariz., and M. Fulton and Percy Spencer, both of Lubbock, for appellee.
   BOYCE, J.

Appellee, Kornegay, recovered judgment in tbe court below as damages on account of personal injuries sustained in alighting from a moving train operated by appellant railway company. Appellee was at tbe time in tbe service of tbe railway company as a laborer, in tbe work of ballasting tbe roadbed. He ate and slept with other laborers engaged in such service in boarding cars furnished by tbe railway company, at tbe gyp pit from which the ballast was taken. It was customary for tbe ballast train, after unloading at various points along the line of road, to stop at tbe gyp pit .to allow such laborers as bad accompanied it for tbe purpose of assisting in the work of unloading to alight at such place. On the day of tbe injury, appellee bad gone out with tbe ballast train, and tbe train, after unloading, and as it was returning to Lubbock past tbe gyp pit after dark, slowed down at such pit for tbe laborers on it to alight but did not stop. Appellee, Kornegay, fell in getting off and sustained tbe injuries for which he sued. Tbe evidence is sufficient to support tbe finding of tbe jury that tbe railroad company was negligent in failing to stop at tbe gyp pit. Tbe jury found that appellee was guilty of contributory negligence and on this account reduced tbe damages allowed him by one-balf. It is conceded that tbe case falls within tbe federal Etaployers’ Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. g. Comp. St. 1916, §§ 8657-8665]).

Tbe appellant claimed as one element of damages that bis mental powers bad been impaired as a result of tbe injury, and tbe first assignment complains of tbe refusal of tbe court to allow a witness for the defendant to detail tbe occasion for a conversation bad with appellee prior to the injury, in which the appellee stated to tbe witness that he was at times demented. Tbe court allowed tbe witness to testify as to tbe statement made by the appellee that be was at times demented, but refused to permit such witness to testify that tbe statement was made at a tune when appellee was being threatened with prosecution for unlawfully disposing of mortgaged property and as a reason why be should not be prosecuted. Tbe details of or occasion for the conversation are not relevant, except for tbe purpose of identifying tbe time, place, etc., of tbe conversation so that a proper! predicate for impeachment may be laid. It does not appear to have been necessary to have shown that appellee was being threatened by tbe witness with prosecution for tbe unlawful sale of mortgaged property in order to have made this identification. Both tbe witness and tbe appellee testified fully to other facts in detail that would suffice to lay a proper predicate for impeachment.

Special charge No. 1, given by tbe court at tbe request of appellee, grouped the facts relied on by appellee as constituting negligence and informed the jury that if they should find such facts to be true, and that they constituted negligence, then they would answer tbe special issue submitted to them in tbe general charge, to tbe effect that the defendant was guilty of negligence, and assess plaintiff’s dama_ges as called for in another special issue. Numerous objections are urged to this charge. We do not think the special charge is on tbe weight of tbe evidence, as contended by appellant. The question of negligence is left to tbe jury. Tbe second objection urged to tbe charge is that it directs a recovery without a finding that tbe negligence was tbe proximate cause of appellee’s injury. Tbe only issues of negligence and proximate cause submitted were contained in tbe second special issue, as follows:

“Was tbe negligence of the defendant or its trainmen, if any, the proximate canse of the injury, if any, to plaintiff?”

It was evidently not tbe intention of tbe trial court by tbe special charge to eliminate tbe issue of proximate cause, though a strict and literal adherence to tbe terms of tbe special charge might indicate this. Tbe court, in its general charge, had defined “proximate cause,” and bad, as we have stated, included such issue in the submission of tbe issue of negligence. Construing tbe charge as a whole, we do not think the jury was likely to have concluded therefrom that tbe court intended to eliminate tbe issue of proximate cause. Liquid Carbonic Co. v. Dilley, 202 S. W. 316; C., R. I. & P. Ry. Co. v. Reames, 63 Tex. Civ. App. 29, 132 g. W. 978. Tbe third proposition under this second assignment, complaining of tlie giving of this special instruction, is to the effect that the evidence is insufficient to justify the submission of an issue of negligence on account of the failure of the train to stop at the gyp pit. The evidence, we think, is sufficient to warrant the finding that it was the duty of the railway company to stop this train, or at least to come to such comparative stop, as would enable the laborers on it to alight with safety, and that it was guilty of negligence in failing to do this on this occasion.

The third assignment complains of the charge wherein the jury is authorized to take into consideration certain stated elements of damage, without limiting such recovery to such damages as resulted proximately from the negligence of the defendant. What we have said in disposing of the second proposition under the second assignment is applicable in a measure to the determination of this assignment. The jury, in this connection, were further instructed that these elements of damage must have been sustained “as a direct and proximate result of the injury.” The jury having been instructed to find whether the negligence was the proximate cause of the injury, it follows, When these charges are construed together, that the jury were only allowed to assess such damages as were the proximate result of the negligence.

By the fourth, ninth, and tenth assignments complaint is made of the refusal of the court to more specifically submit the issues of contributory negligence. The defendant had pleaded that the plaintiff did not properly care for and treat his injuries, and the court submitted generally an instruction that it was the duty of a person receiving an injury to use ordinary care in the care and treatment thereof, and is not entitled to any damages caused by failure to use such care. There was' only one act on the part of appellant, as disclosed by the evidence, which could have supported this plea, and we do not see how the jury could well have faildd to understand that the charge given applied to this condition. The appellant also pleaded contributory negligence on the part of appellee in failing to exercise ordinary care in alighting from the train at the time he was injured. On this issue the court gave a general instruction, and also gave one special instruction requested by the defendant, though it did not cover the group of facts stated in the requested charge, which was refused and is made the basis of the tenth assignment. We are inclined to think that appellant was entitled to have this charge, as well as the charge referred to in the fourth assignment, given. However, we do not think that the refusal to give these charges could have prejudiced the appellant. The issues were simple, and all the facts suggested in the special charges would be naturally taken into consideration by the jury in determining them. The jury actually found that plaintiff was guilty of contributory negligence in alighting from the train and reduced his recovery on that account one-half. Under the circumstances, we do not think the refusal to give these special instructions requires a reversal of the case.

The fifth to the eighth assignments, both inclusive, concern the submission of the issue of assumed risk. The record presents rather a peculiar condition in its relation to these assignments. The appellant pleaded that the injury was the result of a risk ordinarily and usually incident to appellee’s employment, one of which was that involved in the getting on and off of moving trains. The court gave a general instruction on the assumption of risks ordinarily incident to the service, and also gave one of appellant’s requested instructions along the same line; but no issue . of assumed risk was submitted, the case being submitted on special issues, and the jury were not permitted to make any finding to which these instructions were applicable so- that they were pointless. The appellant requested the submission of an issue of assumed risk, and a reversal of the case will be necessary if the pleading and the evidence raise the issue. Appellant has made no statement of any facts offered in evidence in support of the plea, and we accept as correct the statement made by appellee to the effect that no evidence was offered to show that the getting on and off of moving trains was an incident to the character of service in which appellee was engaged. The evidence thus fails to raise an issue of the assumption of the risk as one of the ordinary incidents of the employment, and the court was not required to submit this phase of the law of assumed •risk. The propositions presented by appellant under these assignments proceed on the theory that the record presents the issue of assumed risk based on the rule that when the risk is extraordinary, due to the negligence of the employer, yet the employé, if he knew of the extraordinary danger, or it was so obvious that he must be held to have appreciated it, and proceeded when it was not necessary to incur the same, will be held to have assumed the risk. Several reasons are submitted by appellee why this phase of the law of assumed risk should not be applied to the facts of this case. In the first place, it is urged that the doctrine has no application to a risk caused by an isolated act of negligence suddenly presented and taken, but that such cases are governed purely by the law of contributory negligence. However strong may be the reasoning on which this contention is based, we do not consider the question an open one, particularly under the application of the doctrine of assumed risk as announced by the United States courts, by whose decisions we are bound. P. & S. F. Ry. Co. v. Brooks, 199 S. W. 669.

In the case of C. & O. Ry. Co. v. De Atley, 241 U. S. 310, 36 Sup. Ct. 564, 60 L. Ed. 1016, a brakeman, in boarding a fast moving train, was thrown therefrom and injured. The engineer operating the train knew that the brakeman was to board it at the place where the attempt was made and was negligent in so increasing the speed of the train as to make it unsafe for the brakeman to get on it, and .it was held that an issue of an assumption of the extraordinary risk thus created by the negligence of the engineer of the train was presented. We cannot see any distinction between that case and this one so far as the principle of law applicable to the question here suggested is concerned. Appellee also suggests that the evidence is insufficient to raise this issue on this phase of the law. Again, appellant has made no statement of facts under the assignment, and appellee asserts that there is no evidence to show that appellee appreciated the danger that confronted him in getting oft the train as he did. But assuming that it is true that there was no direct evidence to this effect, a jury- might have found that the danger was so obvious that appellee was bound to have appreciated it, so that we believe that the circumstances are sufficient to have presented a question of fact for the jury on this issue. C. & O. Ry. Co. v. De Atley, supra.

But we are of the opinion that appellant’s pleadings are insufficient to have required the submission of this phase of the law of assumed risk. As we have already stated, appellant pleaded only the assumption of the risk on -the theory that it was one ordinarily incident to the service. The determination of a question of the assumption of an extraordinary risk caused by the negligence of the master is dependent upon entirely different facts and rules of law. The burden was upon the appellant to both plead and prove the defense of assumed risk. I. & G. N. Ry. Co. v. Harris, 95 Tex. 346, 67 S. W. 315; I. & G. N. Ry. Co. v. Garcia, 54 Tex. Civ. App. 59, 117 S. W. 206; M., K. & T. Ry. Co. v. Jones, 35 Tex. Civ. App. 584, 80 S. W. 855; G., C. & S. F. Ry. Co. v. Shieder, 88 Tex. 152, 30 S. W. 902, 28 L. R. A. 538; Kanawha Ry. Co. v. Kerse, 239 U. S. 576, 36 Sup. Ct. 174, 60 L. Ed. 448.

The pleading raising an issue on one phase of the law of assumed risk is not, in our opinion, sufficient to require the submission of an issue of an entirely different phase thereof. Authorities above cited, particularly I. & G. N. Ry. Co. v. Garcia, supra. Por these reasons we overrule these assignments.

We have found no error assigned which in our opinion requires a reversal of the case, and the judgment will be affirmed.
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author: KING, J.

text:
    FOUR ACRE OIL CO. v. NATIONAL BANK OF COMMERCE.
    (No. 383.)
    (Court of Civil Appeals of Texas. Beaumont.
    Nov. 12, 1918.
    Rehearing Denied Nov. 27, 1918.)
    Gabnishment <§=>87 — Affidavit — Sufficiency.
    An affidavit, “G. being first duly sworn on oath says that he is attorney for plaintiff in the foregoing and attached application for writ of garnishment against the National Bank of Carneree, Houston, Texas, wherein Pour Acre Oil Company is plaintiff, and he states under oath upon information and belief that the facts therein stated are true,” was insufficient under Bev. St art. 271, subd. 3, and article 273.
    Appeal from District Court, Jefferson County: E. A. McDowell, Judge.
    Application by the Pour Acre Oil Company for writ of garnishment against the National Bank of Commerce, as garnishee, and George E. Smith, defendant in judgment. Prom a judgment quashing the writ, the oil company appeals.
    Affirmed.
    P. P. Graves, of Houston, and W. D. Gordon, of Beaumont, for appellant.
    Smith & Crawford and B. P. Pye, all of Beaumont, for appellee.
   KING, J.

Appellant applied to the district court of Jefferson county for writ of garnishment against appellee, as garnishee, and Geo. E. Smith, defendant in judgment, under subdivision 3 of article 271, Bev. St. The application, as signed by the attorney for appellant, is in the language of said subdivision 3 and article 273. The affidavit to the application is in the following language:

“State of Texas, County of Jefferson.
“Pleasant P. Graves' being first duly sworn on 'oath says that he is attorney for plaintiff in the foregoing and attached application for writ of garnishment against the National Bank of Commerce, Houston, Texas, wherein Pour Acre Oil Company is plaintiff, and he states under oath upon information and belief that the facts therein stated are true.”

The district court sustained an exception to the application on the ground that it was not supported by proper affidavit as required by statute, and quashed the writ of garnishment, and this is assigned as error.

A careful study of articles 271 and 273 forces us to the conclusion that the affidavit is insufficient and-does not substantially comply with the statutes.

The judgment of the trial court is therefore affirmed.
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