author: PHILLIPS, C. J.

text:
    GULF, C. & S. F. RY. CO. v. STATE.
    (No. 9055.)
    (Supreme Court of Texas.
    Jan. 12, 1916.)
    ComusRce <&wkey;58 — Interstate Commerce — Interference by State — Stopping Trains at County Seat.
    The state under Rev. St. 1911, art. 6676, authorizing the Railroad Commission to order railroads engaged in interstate commerce to stop through trains at county seat stations, may require the stoppage of interstate trains at a county seat within its limits, where the carrier has not otherwise provided sufficient railway facilities for it.
    [Ed. Note. — For other cases, see Commerce, Cent. Dig. §§ 77-86, 100; Dec. Dig. <&wkey;>58.)
    Error from Court of Civil Appeals of Third Supreme Judicial District.
    Suit by the State of Texas against the Gulf, Colorado & Santa Fé Railway Company. From a judgment of the Court of Civil Appeals (169 S. W. 385), affirming a judgment for the plaintiff, the defendant petitions for a writ of error.
    Writ refused.
    Terry, Cavin & Mills, of Galveston, and A. H. Culwell, of Galveston, for plaintiff in error.
   PHILLIPS, C. J.

The case concerns an order of the Railroad Commission, issued under the authority of article 6676, «Revised Statutes, directing the plaintiff in error to stop certain of its trains at Meridian, the county seat of Bosque county, for a time sufficient to receive and let off passengers with safety, for the violation of which, at the suit of the state, penalties were adjudged against the company, such judgment being affirmed by the Court of Civil Appeals. 169 S. W. 385.

Conceding that the trains in question were interstate trains, it was found by the trial court, with the finding approved by the Court of Civil Appeals, that, independent of these trains, the railway facilities provided by the company for the service of the citizens of Meridian were not adequate. We are unable to say as a matter of law that that conclusion was unwarranted. The ease, therefore, falls within the established holding that the state may require the stoppage of interstate trains at a particular locality within its limits, where the carrier has not otherwise provided proper and sufficient railway facilities for it.

The writ of error is refused.


source: Caselaw Access Project

license: Public Domain

text:
    CARTER v. BROWN.
    (No. 9585.)
    (Supreme Court of Texas.
    Jan. 5, 1916.)
    Courts <&wkey;247 — Intermediate Courts — Jurisdiction — Appeal.
    In an action in district court on a vendor’s lien note, plaintiff in error and defendant in error, his grantee, were impleaded, defendant in error seeking- a recovery over against plaintiff in error for deceit. On appeal to the Court of Civil Appeals a judgment in favor of the plaintiff for the amount due on the note, but denying the foreclosure of the vendor’s lien, was reversed and rendered as to foreclosure, and the cause remanded for trial on the issue between plaintiff in error and defendant in error. On remand defendant in error recovered a judgment for $359. Held that, as the amount involved was within the jurisdiction of the county court, and as it was wholly severable from the main controversy, the Court of Civil Appeals has final jurisdiction over an appeal involving- only that issue, and its determination cannot be reviewed by the Supreme Court.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 487, 749, 751-754, 757, 759, 760, 762-764; Dec. Dig. &wkey;247.]
    Error to Court; of Civil Appeals of Second Supreme Judicial District.
    Action by W. R. Thompson against L. G. Keys and others, in which W. T. Brown was impleaded. He in turn impleaded John T. Carter. On trial Thompson was given judgment, but denied foreclosure of his lien, and he appealed. The Court of Civil Aiipeals reversed and rendered judgment in favor of Thompson for the foreclosure of his lien, and remanded the case for trial of the issue between Brown and Carter. From a judgment for Brown, Carter appealed to the Court of Civil Appeals. The judgment being there affirmed, Carter petitions for writ of error. On motion to dismiss.
    Petition dismissed.
    McMurray & Gettys, of Decatur, for plaintiff in error.
   PHILLIPS, C. J.

The suit was originally instituted by W. R. Thompson to recover upon a vendor’s lien note, and to foreclose the lien upon a lot in the town of Alvord. The defendants were L. G. Keys, the maker of the note, thrée other parties, who were alleged to have successively purchased the lot and assumed the payment of the note, and T. B. Brite, a purchaser in possession. Brite inter-pleaded W. T. Brown, the present defendant in error, his vendor, praying for judgment over against him on his warranty of title in the event a foreclosure was decreed. Brown, in turn, interpleaded John T. Carter, the plaintiff in error, charging him with deceit, and seeking judgment against him for any amount he might have to pay on account of a foreclosure. Upon a trial Thompson was given a judgment for the amount due upon the note, but was denied a foreclosure of his lien. He appealed. The Court of Civil Appeals reversed the judgment of the trial court wherein a foreclosure of the lien was denied, rendered judgment in favor of Thompson for its foreclosure, and remanded the case at Brown’s instance for trial of the issue between him and Carter. Thompson v. Keys, 162 S. W. 1196. Thereupon Brown, by amended pleading, sought a recovery in damages against Carter on account of his alleged fraud for an amount less than $1,000. He obtained a judgment for $359.56. It was affirmed by the Court of Civil Appeals; and the review of its judgment is sought by the petition for writ of error filed by Carter, wbicb tbe defendant in error bas filed a motion to dismiss.

Because of the amount involved, Brown’s action for damages against Carter was cognizable by the county court; and in such a case the jurisdiction of the Court of Civil Appeals is final. It was a distinct controversy from that between Thompson and the other parties to the suit in, respect to the foreclosure of the lien upon the lot, and its original inclusion within that suit does not confer jurisdiction in this court over it. This jurisdiction question was presented and ruled upon in Brown v. Cates, 99 Tex. 133, 87 S. W. 1149, in which it was said:

“Where cases which are entirely distinct are thus connected together, and one, considered by itself, is not within our jurisdiction because the amount in controversy is too small, we have declined to entertain it. Any other rule would put it within the power of parties to bring within the revisory jurisdiction of this court causes in which the law intends the action of the Court of Civil Appeals shall be final, by merely joining them with others on which they are in no way legally dependent.”

That decision governs tbe motion, wbicb is accordingly sustained, and the petition for writ of error dismissed.
      @=»For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    TURNBOW v. J. E. BRYANT CO.
    (No. 2431.)
    (Supreme Court of Texas.
    Jan. 19, 1916.)
    1. Statutes <&wkey;124 — 1Title—'Validity.
    Acts 32d Leg. c. 93 (Vernon’s Say les’ Ann. Civ. St. 1914, arts. 1811 — 30 to 1811 — 34), entitled an act to increase the civil jurisdiction of the county court of Castro and other counties which, by section 2, declares that the county court of such counties shall have such jurisdiction as by the general laws is generally conferred upon county courts, is valid in so far as it pertains to the civil jurisdiction, the act not exceeding the title.
    [Ed. Note. — For other cases, see Statutes, Cent. Dig. §§ 184-186; Dec. Dig. &wkey;124.]
    2. Couets <&wkey;42 — County Courts — Statutes.
    Acts 32d Leg. c. 93, § 2 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1811 — 31), conferring upon the county court of Castro county and others such jurisdiction as by the general laws is conferred upon county courts, invests the county court of Castro county with such civil jurisdiction as a county court possesses under the general law, despite the act of the Twenty-Third Legislature, curtailing the jurisdiction of such courts.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 163-170, 181-183; Dec. Dig. &wkey;42.]
    3. Courts <&wkey;52 — County Courts — Jurisdic- ■ tion — District Courts.
    Where Acts 32d Leg. c. 93, §, 2 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1811 — 31), conferring upon the county court of .Castro county the civil jurisdiction of ordinary county courts, and repealing the act of the Twenty-Third Legislature, divesting such courts of practically all of their jurisdiction save probate jurisdiction, went into force at the time an appeal from justice court was pending in the district court, the district court should transfer the case to .the county court, it having no jurisdiction.
    [Ed. Note. — For other .cases, see Courts, Cent. Dig. §§ 184-192; Dec. Dig. 4&wkey;52.]
    4. Appeal and Error <&wkey;>20 — Jurisdiction op Court op Appeals.
    Where the district court had no jurisdiction over an appeal from justice court, the Court of Civil Appeals has no jurisdiction over an appeal from the district court, and the proper practice in such case is to reverse the judgment, dismiss the case, and order transfer to the county court which has jurisdiction, rather than dismiss the appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 81-87; Dec. Dig. &wkey;20.]
    Certified Questions from Court of Civil Appeals of Seventh Supreme Judicial District.
    Action by the J. E. Bryant Company against T. A. Turnbow. From a judgment for plaintiff in district court on appeal from justice court, defendant appeals. On questions certified by tbe Court of Civil Appeals (159 S. W. 605).
    Questions answered.
    Mark Cowsert, of Dimmitt, and Carl Gilli-land, of Hereford, for plaintiff. Barcus & North, of Weatherford, for defendant.
   PHILLIPS, C. J.

An act was passed by the Twenty-Third Legislature (chapter 57, page 74) for the purpose of diminishing the civil and criminal jurisdiction of the county court of Castro and Hartley counties, by the provisions of which it was left with its general probate powers, but was practically divested of all other jurisdiction; there being conferred upon the district court of the respective counties jurisdiction in all civil and criminal matters over which the county court would, by the laws of the state, have jurisdiction, except as provided by the section of the act reserving to the county court its probate jurisdiction. While this act was in force an appeal was prosecuted to the district court of Castro county from a judgment rendered in a justice court of the county against the appellee in favor of the appellant. The case was tried in the district court, resulting in the rendition of a judgment, on October 23, 1911, in the appellee’s favor. the appellant appealed to the honorable Court of Civil Appeals for the Seventh District, which dismissed the appeal with instructions to the trial court to set aside its judgment and transfer the case to the county court of Castro county ; the ground of its action being that the jurisdiction of the case, at the time of the trial in the district court, was in the county court, under the act of the Thirty-Second Legislature (chapter 93, page 171), effective June 9, 1911, restoring to the county court of Castro county its ordinary civil jurisdiction under general laws.

Four questions are certified for our determination: (1) Whether the act of the Thirty-Second Legislature, just referred to, is unconstitutional, in whole or in part. (2) Whether the act was properly held effectual to restore to the county court of Castro county its ordinary civil jurisdiction. (3) Whether the district court of Castro county was properly held to be without jurisdiction of the case at the time of its trial. (4) Whether the jurisdiction of the Court of Civil Appeals was properly held dependent upon the jurisdiction of the district court, and whether it erred in dismissing the appeal from the latter court and instructing it to set aside its judgment and transfer the ease to the county court of Castro county.

In respect to the civil jurisdiction conferred hy its terms upon the county court oí the counties named, the constitutionality of the act in question is not, in our opinion, to he doubted. Its title is:

“An act to increase the civil jurisdiction of the county court of Deaf Smith, Parmer, Ban-dall, Castro, and Lubbock counties, and the unorganized counties of Bailey and Lamb, and declaring an emergency.”

In so far as it deals with the civil jurisdiction of those courts, the body of the act is not inconsistent with the title. By section 2 it is provided that the county court of the counties named “shall also have and exercise such jurisdiction over and pertaining to all matters and things and proceedings as by the general laws of this state is conferred upon county courts.” As applied to the county court of Castro county this clearly provided for an enlargement of its civil jurisdiction beyond the probate powers it then possessed, and the act was therefore properly denominated one “to increase” its civil jurisdiction.

We do not feel called upon to express any opinion upon the constitutionality of the act except in its relation to the civil jurisdiction it confers.

As to the second question, it is plain that section 2 of the act invests the county court of Castro county with such civil jurisdiction as a county court possesses under the general law.

The act was in effect when the case was tried in the district court. It amounted to a repeal of the previous act of the Twenty-Third Legislature as related to Castro county, and the jurisdiction of the district court over the ease terminated with such repeal. The district court was therefore without power to try the case. While no express provision was made for the transfer to the county court of such eases then pending in the district court as were within the jurisdiction of the former, such was the effect of the act. Mexican National Ry. Co. v. Mussette, 86 Tex. 708, 26 S. W. 1075, 24 L. R. A. 642. The holding of the Court of Civil Appeals in respect to the jurisdiction of the district court over the case was accordingly corrept.

Answering the fourth question, the Court of Civil Appeals was without jurisdiction of the appeal, unless the trial court had jurisdiction of the case. We have heretofore indicated that the proper practice in such cases is for the Court of Civil Appeals to reverse the judgment and dismiss the case, rather than order the dismissal of the appeal. Pecos & North Texas Ry. Co. v. Canyon Coal Co., 102 Tex. 478, 119 S. W. 294.

The judgment of the district court ought therefore to have been reversed, instead of the appeal being dismissed. Since the effect of the act was to transfer the case to the county court, it was proper to direct the district court to so transfer the case.
      <£=>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: YANTIS, J.

text:
    MANNING v. BEAUMONT, S. L. & W. RY. CO.
    (No. 2428.)
    (Supreme Court of Texas.
    Jan. 19, 1916.)
    1. Appeal and Eeeor <&wkey;1091 — Scope op Beview — Presumptions.
    On writ of error to the decision of the appellate court, reversing the judgment of the trial court and rendering a contrary judgment, the Supreme Court must consider the evidence in the light most favorable to the successful party in the trial court.
    [Ed. Noto. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 4802-4311, 4331; Dec. Dig. &wkey;5l091.]
    2. Appeal and Eeeoe <&wkey;1001 — Beversai— SUEEICIENCY OF EVIDENCE.
    On appeal, if the verdict of the jury is supported by any evidence, the judgment based thereon should not be reversed, nor judgment rendered for the opposite party.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3922, 3928-3934; Dec. Dig. &wkey;10OL]
    3. MasteR and Seevant &wkey;>277 — Injuries to Servant — Liability oe Mastee — Evidence.
    Evidence on the question whether the injured person was actually a servant of defendant, or of another company, held sufficient to support a verdict of the jury for plaintiff.
    [Ed. Note. — For other eases, see Master and Servant, Cent. Dig. § 953; Dec. Dig. <&wkey;>277.]
    4. Trial &wkey;>142 — Province oe Juey — Ineer-ENCES EROM EVIDENCE.
    Where there is evidence from which a conclusion for either party might be drawn, it is the province of the jury to weigh the evidence and reach the conclusion they deem proper.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 337; Dec. Dig. &wkey;142J
    6. Master and Servant <&wkey;277 — Injuries to Servant — Liability oe Master — Belationship — Evidence.
    That a company other than the defendant paid the wages of a train crew is not conclusive of the fact that such company, and not the defendant, employed the servants, in view of other evidence supporting a contrary conclusion.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 953; Dec. Dig. i&wkey;>277.]
    Error to Court of Civil Appeals of First Supreme Judicial District.
    Action by Pat Manning against the Beaumont, Sour Lake & Western Bailway Company. From the decision of the Court of Civil Appeals (146 S. W. 227), reversing a judgment in his favor in the court below, plaintiff bring»! error.
    Beversed and remanded.
    O. T. I-Iolt, John Lovejoy, and J. W. Parker, all of Houston, for plaintiff in error. Andrews, Ball & Streetman, of Houston, C. T. Duff, of Beaumont, and A. L. Jackson, of Houston, for defendant in error.
   YANTIS, J.

The plaintiff in error, Pat Hanning, recovered a judgment in the district court of Jefferson county against the Beaumont, Sour Lake & Western Railway Company for personal injuries received by him on the 26th day of July, 1907, while he was engaged in unloading tools from a construction train, the sudden jerking of which threw him off the flat car, where he was working, and under the train, which resulted in the wheels of the train running over and mashing his leg from his ankle to his knee. The honorable Court of Civil Appeals for the Eirst District reversed and rendered the judgment in favor of the defendant in error, the Beaumont, Sour Lake & Western Railway Company, on the ground that the undisputed evidence showed that the train crew, whose negligence was complained of in causing the sudden jerks to the car, were the servants of the Kenefick-Hammond-Quigley Construction Company, an independent contractor engaged in the construction of an extension of the defendant railway company’s railroad from Sour Lake to Houston, and not the servants of the said Beaumont, Sour Lake & Western Railway Company. 146 S. W. 227. A writ of error was granted by this court on said question.

Originally the suit was also against the Colorado Southern, New Orleans & Pacific Railway Company and the Kenefick-Hammond-Quigley Construction Company. The plaintiff alleged that he received his injuries from the joint negligence of all the defendants. Before the case went to trial, however, there was a dismissal by the plaintiff in error as to all the defendants except the present defendant in error, the Beaumont, Sour Lake & Western Railway Company.

At the time of the accident complained of the extension of the road had been practically completed, but it was not turned over to the defendant in error until three days later. At the time of the accident the plaintiff in error, Hanning, was unloading tools from a flat car, preparatory to the construction of a switch.

The holding of the honorable Court of Civil Appeals that the undisputed evidence showed the train crew to be the servants of the construction company, and within their exclusive dominion, requires us, in reviewing the correctness of its decision, to search the record for, and give consideration to, the facts and circumstances in the record which are most favorable to the contention of the plaintiff in error on the question as to whether there is evidence of probative force tending to show that the train crew whose negligence was complained of were the agents and servants of the defendant in error, or the joint servants of it and the said KenefickHammond-Quigley Construction Company. The jury has found favorably to the contention of the plaintiff in error upon this question. If there is any evidence to support their finding, the case should not have been reversed and rendered against the plaintiff in error. To determine this question it is not now essential or appropriate to present the evidence herein which is favorable to the opposite contention, the inquiry being directed entirely to a determination of whether there was any evidence to support the verdict of the jury.

It is contended by the plaintiff in error, Manning, that there is evidence of this nature to sustain the verdict, and in his petition for writ of error he quotes from the record the evidence upon which he relies to support the verdict of the jury, which is as follows:

“Plaintiff testified: ‘I am plaintiff in this case, and on July 26, 1907, I was working on construction work of the Beaumont, Sour Lake & Western Railroad Company, which runs east and west between Houston and Beaumont. I was foreman of the construction crow, and was occupying this position and doing this work from tho 26th of March, 1907, until I got hurt, which was _ about four months. * * * Our work consisted in track construction, with headquarters at Huffman, which is in Jefferson county, Texas, about a mile west of the Trinity river. The station or siding at Martha, at which I got hurt, was east of Huffman and west of the San Jacinto river. I received an injury on July 26, 1907,_ between 1 and 2 o’clock p. m. On the morning of that date we started from Huffman, going east, with about 10 or 12 men, and I was foreman of them. * * • When we went out in the afternoon our train had eight ears loaded with ties and angle bars.. The number of the engine drawing us was 302. The engineer was John McConnell; the fireman, H. Chapman; the conductor, O. S. Hoffhein. In leaving in the afternoon our destination was Martha. We wore bringing in ties and angle bars, and were going to connect a switch with tho main road at Martha. When we got to Martha the train was stopped, and there was a box car loaded with angle bars, and a fiat car loaded with tools, and the caboose. The hindmost car was the caboose, and the one next in front of that was a flat car, and the one next in front of that, towards the engine, was a box car; then the other fiat ears ahead were loaded with ties. * * * Two cars were cut off, and the balance of the cars loaded with ties were to go on east; but after they cut off the two cars and went ahead with the cars of ties they came back again; don’t know whether they cut in two or not; anyway they came back. The flat car loaded with tools and the cars loaded with angle bars were the two rear cars, which were cut off. * * * The general foreman or superintendent at that time was Mi-. R. L. Price. I was told to get the tools off tho flat car and put in the switch. This order was given to me by Mr. R. L. Price. * * * I said, “All right,” and got the crew that was with me, some down on the ground, and I was up on the car, and was stooping over picking up tools and handing them off, and as I was reaching over to pick up some tools those cars came back and hit once and knocked me back like, and I hadn’t got straight up until it hit a second time so hard the blow knocked me off and over the end of the car, and I fell on the ground, and tho car wheels run over my leg and mashed it about halfway up from my ankle to knee. * * * At the time I was hurt the main line ran all the way west of Beaumont as far as I went. Trains were running from here (Beaumont) to the San Jacinto river. * * * Trains had been running over the main line from 10 to 12 days before my injury — maybe more. The trains hauled lumber, shingles, stock, and such stuff as that. There was freight hauled through as property of the railroad company. I know that such freight was hauled, and I know of officers of the railroad company riding in cars over the railroad for some time before my injury. Mr. R. L. Price never had nothing to do with the engineer, fireman, and conductor of that train. He never gave them any orders, except to go and get material, or to take material to any particular point. That is all. When an order was made for material to be brought to a particular place to be'unloaded, he told them to do it and they did it.’
“C. S. Hoffhein, a witness for plaintiff, testified:
“ T reside at Houston, and entered the service of the Beaumont, Sour Hake & Western Railway Company January 22, 1907. I started from Houston under orders contained in a letter in my possession. (Witness hands letter to plaintiff’s counsel and identifies it.) * * * I ap-
plied for service in the railroad company to Mr. D. T. Forbes, who was then general superintendent, with his office here in Beaumont, I believe. * * * I had charge of a train from Sherman to Beaumont, but first brought it by way of Houston, then from Houston to Beaumont. I got here in the evening and stopped here until next morning; then I delivered those cars over the Beaumont & Sour Lake, and delivered them to the Trinity river, which is west of Beaumont. I delivered them to the foreman of the sand pit. After that I had instructions to return to Beaumont, and to pick up bad order cars along the line and bring them to Beaumont, from the river; and I did that. I don’t remember how many cars I brought in, hut somewhere between 12. or 15, something like that. They were different kinds of ears; some were construction company’s; some were the Frisco ears; some foreign cars from other lines and were used for cattle. * * * We got to Beaumont about January 28, 1907, something like that, and brought the bad order cars into Beaumont the following day, January 29th. The Beaumont, Sour Lake & Western had some cars with its own initials and used some other cars of foreign roads. It had Frisco cars; it used quite a number of them. * * * I delivered those bad order cars, I think, to what they call the Santa Fé yards here at Beaumont; the Beaumont, Sour Lake & Western was using that yard. These bad order cars were put there for repairs, some of them; some of them they delivered to other lines. They did some of the repairing in their yards. The defendant railroad company had a yard at the roundhouse. The next morning, as stated, I went out on a passenger run; that was January 80, 1907. I went out under the orders of Mr. Forbes. I was on that run something like two weeks; I was a conductor on a passenger train hauling .passengers and collecting fares. * * * After I got through with that service I was on the train that hauled material to the Trinity river. I did this under the orders of Mr. Forbes and acted as conductor. I could not answer how long I was in this service of hauling material to Trinity river; it must have been as much as three weeks or a month, something like that, I wouldn’t state positively. I was conductor of the train hauling material, and my run was from Beaumont to the Trinity river, delivering rocks and sand and material to the bridge company to put in that bridge. After this service I was sent to Houston to take charge of that train loading the steel out of Houston, under Mr. Forbes, and acting as conductor. That train was for hauling steel, and I was engaged in this service until the road was taken over and we were sent down to the San Jacinto river; that was in August sometime. That was the same train, you might say, that injured Manning. I remember the occasion of Manning’s injury. I was conductor of the train at the time. * * * I was examined for the service; I think that was in April I made out a personal record; I was examined by the doctor. This personal record was one to show where you had worked previous to that time, and the application was addressed to Mr. £>. T. Forbes in his capacity as superintendent. I was examined by Dr. Forrest B. Smith of Houston; I don’t know whom he was acting for. There is a form on there, requiring you to go to an examining physician, to be filled out. I went to Forrest B. Smith, because I was in Houston, and he was the examiner for the S. P., and I went to him. This examination was connected with and went with my application to Mr. Forbes. It must have been satisfactory; I never heard anything of it afterwards, and continued in the service afterwards. The object of this personal record is to get a man’s record of his previous employers, where he had worked before, I suppose; I don’t know what other object is in it. That is usually what they start the seniority from, from the personal record. I continued in the service of the railroad until September 29, 1908. My seniority dated, I suppose, from the time I went to work. It was never decided in any other way; it was from the time I went to work. From the time I was serving as conductor I asked for leave of absence a number of times, making my application for leave of absence to Mr. Forbes. Sometimes I would apply verbally and sometimes in writing, for this leave, to Mr. Forbes or his chief clerk, either one, whichever I chanced to see. I never did apply to anybody else for leave of absence at the same time. When I applied in writing for this leave to Mr. Forbes I would address him in the Keith Building, Beaumont, Texas, in which was located the general offices of the Beaumont, Sour Lake & Western, in Beaumont. When I would write in to Mr. Forbes for leave of absence, I would not always get replies, unless he would send a man to relieve me. Sometimes he would send a man to relieve me, with a letter that he was authorized to relieve me. I did not keep these letters. When I received those letters, I would take leave of absence; Mr. Forbes never complained of my doing so.’
“On cross-examination he testified:
“ ‘Our work there consisted in carrying material and carrying the track gangs, as directed by Mr. Price. * * * The Kenefick-Ham-
mond-Quigley Construction Company did not keep a corps of locomotive engineers, that I know of, nor corps of firemen, conductors, or brakemen, to my knowledge.’
“In connection with the testimony of the witness C. S. Hoffhein, as above set forth, the counsel for the plaintiff offered and introduced in evidence a certain application for employment made out and dated, ‘Houston, May 1, 1907,’ addressed to D. T. Forbes, general superintendent B. S. L. & W. Ry. Co., Beaumont, Texas, and signed by C. S. Hoffhein, giving reference to previous employers and indicating previous occupation, with personal record of the applicant, applying for employment as conductor, and also annexing certificate of surgeon showing results of physical examination. This application is made out on a printed blank form bearing the following caption: ‘Frisco, the Colorado Southern, New Orleans & Pacific Lines: Colorado Southern, New Orleans & Pacific Railway Company; the Beaumont, Sour Lake and Western Railroad Company; the Orange & Northwestern Railroad Company.’ This was the same personal record and application referred to and identified by the said Hoffhein in his foregoing testimony while on the witness stand.
“In this connection plaintiff, by his counsel, also introduced and read in evidence that certain letter identified and mentioned by the witness, C. S. Hoffhein, in his foregoing testimony, dated January 22, 1907, and which reads as follows:
“ ‘C. S. Hoffhein, Conductor, Houston: On your arrival Sherman, you will find C. & N. I. engine. You will remain in Sherman until the fifty cars have reached there, which will inake up your train to Beaumont, unless you receive other instructions from this office.
“ ‘[Signed] D. T. Forbes, by H.’
“J. B. Franks, a witness for plaintiff, testified:
“ T reside in Houston, Texas, know Pat Manning, the plaintiff, and was present when he sustained injury causing loss of his leg. I was brakeman at that time, and Mr. McConnell and Chapman were engineer and fireman, and O. S. Hoffhein was conductor. * * * I made out my application for employment May 13, 1907, before this accident. I made it out in the superintendent’s office; I didn’t address it to any one. The superintendent was Mr. Forbes; he was the superintendent of the Beaumont, Sour Bake & Western Railway Company. Written applications are required by the companies to show personal record before going to work. I left my application with the chief clerk of Mr. Forbes. Applications were sent to us while we were at Victor, Texas, about 20 miles from Martha, a station on this railroad. I was acting as brakeman on the steel train at the time I put in this application. I think I had been on there at that time about 30 days. The blank application came from the office in Beaumont. I don’t remember whom it was signed by. I made out the application in the superintendent’s office. I didn’t bring the same application that I received, as I forgot it. I secured another one after I got here. After making out the application I was examined by Dr. Reed, surgeon of the railroad company. After I made this application I went back and went to work again, braking on the same train and doing the same character of work that I had done before. My seniority dates from my application, I suppose; that is the rule of the company. I have been in charge of trains, as conductor, several times. I took the train once- when I remember Mr. Hoffhein’s laying off. .'I don’t remember when this was; it.was certainly before the accident to Mr. Manning— quite a while before that accident; it must have been anywhere from 30 to 60 days. I took charge of the train at Huffman; it was a steel train, hauling ties and material, pretty much the same kind of train that was being used when Manning was injured. Mr. Forbes was at Huffman at the time that I took charge of the train. Mr. Hoffhein was going to lay off, and he wanted me to take charge of the train. Mr. Moore asked me; he said he would see that I took charge of the train; he said he would see Mr. Forbes. We were in the dining room, in the tent that served as a dining room. Mr. Forbes’ ear was on the east end of the side track, I suppose 150 yards away, something like that. After that conversation Mr. Moore went to Mr. Forbes’ car; after his return he (Moore) told me to take charge of the train while Mr. Hoff-hein was off. He said Mr. Forbes said it would be all right for me to take charge of the train, and I did take charge of it. I don’t remember the exact length of the time that I took charge of the train — I have lost my book. Mr. Forbes saw me at the time I took charge of the train; he knew that I was operating it.’
“On cross-examination the witness testified:
“ ‘This application for employment, and personal record, etc., is always made before the employment takes place. * * * I was first employed over there in that construction work by Mr. R. L. Price, the foreman; he was a friend of mine, and he put me to work out there in the emergency service.’ * * *
“On redirect examination the witness testified :
“ T was first employed by Mr. Price, and under this employment I first went out there and he asked me to come out and take about ten days’ employment firing for him; they had no one else that they could put on the engine at the time; I couldn’t tell you what had become of the fireman. At the time I came in here and made my application I had been braking out there under Mr. Price’s employment about 30 days before I made my application. Mr. Price also started me on that work; there was a brakeman quit and I took the job braking. I couldn’t say positively that the job braking was emergency; I don’t remember whether there was anybody else there braking or not. It was while I was there doing that braking that I was called into Beaumont to make that application; I don’t know how the railroad company found out that I was doing the braking; I couldn’t say how they found it out.’
“George A. Clark, a witness for the plaintiff, testified by deposition:
“ ‘On the 26th day of July, 1907, as well as prior and subsequent to said date, I was vice president and general manager of the Beaumont, Sour Lake & Western Railway Company.’ * * *
“The following testimony of the witness J. W. McConnell was introduced by defendant:
“ ‘My name is J. W. McConnell; I am a locomotive engineer, with an experience of two years and eight months; I am familiar with the occurrence of an injury to Pat Manning on the 26th day of July, 1907, at a little place called Martha, on the Beaumont, Sour Lake & Western Railway. I was employed as engineer out there at that time and was engaged in doing construction work for the Kenefick-Hammond-Qnigley Construction Company. This‘construction company paid me for my services then and there rendered. I had been engaged in that sort of work out there with the construction company since May 15, 1907, and remained there in that service until the last of July or 1st of August. * * * The engine that we were using was 302; we were using that engine from, I think, about May 13, 1907, up to the time of Pat Manning’s injury.’
“On cross-examination by plaintiff the witness testified:
“ ‘Mr. Baker employed me; he was the master mechanic of the Frisco lines — master mechanic of the Beaumont, Sour Lake & Western Railway Company, the defendant in this suit. I made my application for employment to the Beaumont, Sour Lake & Western Railway Company here in Beaumont, in August, 1907, I think. They had a form to fill out. I had not made such application prior to that time; had never been in Beaumont before that time. I was taken into the service originally without making any report and had been in the service from May until August without making a record. I was in Houston when I was employed, and went to Crosby, and was driven out to the camp where the men stayed. I was employed to run an engine; this engine was numbered 302, and from the time I was employed by Mr. Baker and went out there and took charge I ran this engine on down Until the time that Mr. Manning was hurt. Nobody else but me was employed to run it. I knew Mr. D. T. Forbes, who was superintendent. * * * I don’t know what his powers -were with regard to me or my crew; we were looking to Mr. Price or Mr. Moore for instructions. I didn’t look to them for the job, but I looked to them for the pay at the time. That is all I was looking -to them for, the pay. They told me what material to haul, and where to haul it; that was all. * * - * I came in here to Beaumont to have a pilot raised. I had this done at the roundhouse; at the Beaumont, Sour Lake & Western roundhouse. I raised it myself; I brought it here to have it raised, because I thought I could have it done better. I didn’t get the Kenefick-Hammond-Quigley Construction Company to do the work, because they-had no shops; they had no shops to repair anything about the engine, that I know of. As to whether I would bring the engine to the shops depended on the nature of the repairs required. If a defect was such as required that the engine be taken to the shop, it would be brought to the Beaumont, Sour Lake & Western shops to be repaired. Mr. Baker hired me. He told me what wages I would get.’
“The following testimony of this witness was offered on behalf of plaintiff:
“ T continued «right on as an engineer after the railroad company took over the railroad. There was no change, except in the time checks coming from the railroad company; there was no new contract made with me, and I went into the service of the railroad company, according to my understanding, about three days after Manning was hurt.’ * * *
“The following testimony of defendant’s witness, F. A. Hull, was introduced by plaintiff:
“ ‘My name is F. A. Hull; I am with the Prisco Lines in Texas, representing the purchasing department. In the year 1907 I was chief clerk to D. T. Porbes, superintendent of the Beaumont, Sour Lake & Western Bailway Company, at Beaumont, and I acted in this latter position at and prior to the injury of Pat Manning, on the 26th day of July, 1907, and had been acting in that capacity since the first day of December, 1906. While in that position all the business of the superintendent’s office passed over my desk before it went to the general superintendent. Personal records are really the applications of the men for employment in train service, made out on the personal record form, in which he gave his date of service that he entered the railroad service, with what company he started with, and all succeeding records during his railroad service. When he signed that application we sent out letters of inquiry to different references to find out the length of service, or to verify his length of service, and what his general reputation was as a railroad man and as an employé. C. S. Hoffhein, J. W. McConnell, engineer, and J. B. Pranks, brakeman, were in the service of the construction company during this period. They put in their applications to the superintendent’s office for employment. The reason for their putting in such applications and personal records was that at the time this company began to build this line, what we called the extension from Sour Lake west, it was understood between the general manager and the construction company, after the office of the general superintendent was established, and he being a thorough transportation man, that all men entering train service would be required to file an application with the general superintendent of the railroad company, in order that the railroad company might be assured that they were getting competent men for the construction company’s trains, and anticipating the taking over of those employés when the construction was over. Mr. D. T. Porbes was general superintendent, and had control of all the men in the service of the railroad company, with power to employ men and to discharge them; he had been general superintendent from the last of September, 1906. I think Mr. Porbes left the service September, 1907, or it might be 1908 — I am not sure about that; anyway he was general superintendent covering the months of January, February, March, April, May, June, and July, 1907, having the powers I have spoken of. Mr. J. A. Baker was master mechanic, located at Beaumont; he had direct charge of the enginemen, machinists, and mechanics in the roundhouse, shopmen; he had those powers covering the period of time mentioned by me, so far as the engineers and firemen and mechanics were concerned; he had the power to employ and discharge engineers and firemen. I believe 'the defendant railroad company furnished the construction company with engine 302; I don’t know when that engine went into service; I don’t remember who the fireman was who operated that engine; Mr. McConnell was the engineer; that engine was used in connection with what we called a work train; the conductor of that work train at the time of Mr. Manning’s injury was Mr. Hoffhein, and Mr. McConnell was the engineer.’
“Beferring to the document handed witness by counsel, the witness stated:
“ ‘This was an application for employment by C. S. Hoffhein (same before referred to); it is addressed to Mr. Porbes, general superintendent of the Beaumont, Sour Lake & Western Railway Company; Mr. Porbes was general superintendent of the Beaumont, Sour Lake & Western Railway Company. This application, signed by C. S. Hoffhein, was witnessed by me; the application was for employment as conductor; annexed to this is also a certificate of examination signed by G. H. Beed, who at that time was a company surgeon. This application is supposed. to contain the personal record of Mr. Hoffhein, and it was satisfactory; being satisfactory to me, after investigation, he was instructed to remain on call until his services would be required. I don’t remember just when Mr. Hoffhein went to work for the construction company; his services were required; he was instructed by D. T. Porbes to report to the contractors. Supposing this record had not been satisfactory, he would not have gone to work. * * * This application now shown me is that of Mr. J. B. Pranks (same before referred to), addressed to Mr. Porbes, evidently in his official capacity of superintendent, and is an application for employment as brakeman, dated May 13, 1907; the date of Mi-. Hoffhein’s application is May 1, 1907. This latter application purports to contain the personal record of Mr. Pranks. There is also a surgeon’s certificate of examination attached to it, signed by the same surgeon, who was then a company surgeon; I witnessed the application and the surgeon’s certificate of examination was satisfactory. He went to work after having made that examination; I don’t remember on whose order he was called. _ If his personal record or surgeon’s examination had not been satisfactory he would not have been permitted to go to work. ’ * * *
“Witness continuing, testified:
“ T could not say that Mr. Baker, master mechanic, had authority to employ Mr. McConnell to run engine 302 in the construction work; Mr. Baker was master mechanic in charge of the railway property; he had the power to employ engineers and firemen; I don’t know whether he had the right to employ Mr. McConnell or not; if he did it, I suppose he had authority to do so. * * * When an engineer operating an engine used in the construction work out there would lay off or quit his job, the construction company called on us to , furnish an engineer, and we would furnish one, and in many cases this was true with reference to the conductors, brakemen, and firemen; it was true whenever a vacancy was to be filled by the construction company, unless they picked up a man of their own, and they did that in repeated instances. I know that men have gone to woi-k for the construction company out there that were never on my pay rolls. It is not true, within my knowledge, that Hoffhein applied to my office for leave to lay off, though I cannot say that he didn’t. We didn’t send any men to the construction company to replace men 'in their service who had laid off or quit, unless they were called for by the contractors. If a man laid off and they (the contractors) needed a man to take his place, we got notice of that through the construction company. Our office repeatedly granted leaves of absence to those in charge of the operation of the engine and ears out there, when we had jurisdiction over the crews. Prior to the accident they frequently made application to our office for leaves of absence which were granted if they were employed by the railroad company. I think Mr. Porbes was on the works himself 95 per cent, of the time; he certainly knew what was going on, so far as the railroad company was concerned. I don’t say that Mr. Porbes didn’t put Pranks in charge of the train' up there to take the place of Hoffhein; if lie did so, he had authority to do it. * * * A locomotive is a valuable machine, and requires that those who have charge of it handle it with proper care and proper skill in order to avoid injury; the railroad company, in furnishing those engines to the construction company, was interested in having those engines manned by men having proper skill and who would use proper care. I believe the master mechanic examined all of his engineers, and it was with the view of having engineers who were competent and careful in handling those engines, in order that the interests of the railroad company might be served throug'h these men. Assuming that these men, Hoffhein and McConnell and Franks and Chapman, at the time of this accident, were in the employ of the railroad company at the time named, Mr. Forbes could have discharged them if he had seen proper — if they were in the employ of the railroad company. I think that, as the contract was originally drawn, the railroad company was to furnish to the construction company the engines. I might be mistaken about such being the contract, and I could not say as to the railroad company furnishing the engines and men gratuitously to the construction company. I have heard of such contracts; it may be an understanding, so far as they are concerned, without being in the contract. I would not think that the railroad company would have furnished those engines for nothing to the construction company, nor do I think that it would have furnished men unless the construction company had paid their wages.’
“Here, on behalf of defendant, the following testimony of said witness, theretofore taken on redirect examination, was introduced:
“ ‘My testimony is that the Kenefick-Ham-mond-Quigley Construction Company paid the wages of the men that were working in the construction service, and the railroad company did not pay them. As to the engines that were leased by the railroad company to the construction company, or let to them, I know nothing of the terms, and am not familiar with the details of the contract between the railroad company and the construction company.’
“Counsel for plaintiff, in connection with the testimony of witness Hull, introduced in evidence application showing personal record and physician’s certificate of J. B. Franks, dated May 13, 1907, filled out in a printed blank form substantially similar to that of C. S. Hoffhein, hereinbefore fully described and introduced at the conclusion of the testimony of C. S. Hoffhein, hereinbefore set out.
“E. M. Smith, defendant’s witness, testified:
“ ‘It was not indicated to me that the railroad company reserved to itself the right to pass upon all applications, in order that competent men should be put in the service of the department; it wasn’t put up- to me that way. Mr. Hull would know more about that than I would; he was there on the ground; he would know what the demands of the railroad company were. * * * It would not have been out of the ordinary for me to call on the railroad company to furnish another engineer and conductor. According to my own knowledge, I don’t know about what agreement there may have been between the railroad company and the construction company as to employment of competent and careful men in charge of the engines and cars. * * * I know that regular bills for the use of the engines were rendered by the railroad company against the construction company ; the bills were not sent to me at all. I could not say who O. K.’d those bills for the construction company. The rental of engines and cars was entirely a separate matter from that of compensation of the crews; the bills for rental of engines and cars were paid by the construction company to the railroad company.’
“On redirect examination the witness testified:
“ T know that the construction company paid a regular rental to the railroad company for the use of the engines; that was by reason of some agreement between the construction company and the railroad company, to which agreement I was not a witness and do not know whether it was in writing| or not.’
“E. A. Hull, called in person as_ a witness for defendant, being duly sworn, testified:
“ T testified on the former trial of this case. As I understand, a portion of my testimony on! that trial has been offered in evidence on this trial. I am familiar with the fact that Hoffhein, conductor, McConnell, the engineer-, and Franks, brakeman, and some other men, put in a formal application with their personal records for employment at a time when they were already engaged in doing work over there for the construction company, and will state that the time when those applications were filed and approved they did not go on the pay roll of the defendant railroad company, nor did they go on such pay rolls or receive pay from the railroad company until some days after the injury of Pat Manning.’
“On cross-examination the witness testified:
“ T have said that I did not know of any absolute requirement on the part of the construction company to receive into its service employes who had been recommended by the railroad company. I don’t know of any instance where the construction company refused to take men into its employ that the railroad company had 0. K.’d and sent there for that purpose. Franks worked for the company after making that application; on whose order I don’t remember. If the personal record and surgeon’s examination of Franks had not been satisfactory, he would not have gone to work for the railroad company.’
“The defendant next introduced in evidence the testimony of John W. Hoffman, taken by deposition, both direct and cross examination, which reads as follows:
“ ‘My name is John W. Hoffman; age 32 years; residence in Kansas City, Missouri; and my occupation that of railroad contractor. * * * The engine being used was an engine leased from the railroad company by the construction company, for which the construction company paid a fixed price per day; the construction company paying the crew and all other expenses in connection with operating the engine. The engine was being used for the purposes of the construction company and was performing service for the construction company. Kenefick-Hammond-Quigley Construction Company had control of and the power and right to direct the engineer, fireman, and other members of the train crew that were operating the engine in use at the time and place of the alleged injury to the plaintiff, and the members of said crew were under the immediate direction and control of the construction company, and the Beaumont, Sour Lake & Western Railway Company had nothing to do with the direction or management of said train crew. The train crew were paid by the construction company, either in cash or in checks, their names appearing upon * * * roll of the company. I do not know personally the condition of the track at that time. * * * The work that this crew were doing at the time of the accident to Manning was being done by the construction company, in order that that company might complete their contract by the completion of the track between Sour Lake and Houston, there being a track-laying organization laying track from Sour Lake towards Houston, and one laying track from Houston towards Sour Lake, endeavoring to close up the track, which, when completed, would complete the contract of the construction company on that portion of the line. They were not performing work that had been subject to R. O. Duff or that had been relinquished to the Beaumont, Sour Lake & Western Railway Company. This portion of the road at which Pat Manning was working was at the time under the immediate charge of Kenefick-Hammond-Quigley Construction Company and had not been turned over to the Beaumont, Sour Lake & Western,' Railway Company.’
“In response to cross-interrogatories the witness Hoffman testified as follows:
“ i * * * engine was leased by the construction company from the Beaumont, Sour Bake & Western Railway Company. There was nothing in their contract between the construction company and the railroad company by which the railway company was to furnish any .equipment whatever. * * * The railway company has no power to discharge any engineer or other employé of the construction company; but the construction company would have, upon request of the superintendent or general manager, discharged any employé who was not satisfactory or who was objectionable to the railroad company, as the equipment being used by the construction company was leased from the railroad company. The construction company would have discharged any employé who was not satisfactory to the railway company. If the railway company had objected to any of the employés of the construction company, such em-ployés would have been discharged by the construction company and other men employed who were satisfactory to the railway company. Both the employment of men and the discharging of them, however, would have been done by the construction company. The engine and crew were under the direct control of the construction company and were subject to its orders. 'The conductor was also under the orders of the construction company át the time and place of Manning’s injury. As a matter of fact, all that the conductor or engineer of the train crew would have to do with the construction of the railroad would be to haul the material where •directed by the construction company, or switch whatever cars the construction company should direct. This was all the train crew was employed to! do or could do in the construction. * * * The engine being used at the time of this accident did not belong to the construction company, but was leased by it as above stated. * . * * As above stated, I do not recall any particular transaction with respect to these two engines. When an engine leased by us from the railroad company was not satisfactory, it was returned to them, and they furnished another engine in the place of it, if possible.’
“H. M. Hood, defendant’s accountant, testified:
“ ‘During the time of the construction work in the month of July, 1907, and prior thereto, on the extension of the railroad from Sour Lake towards Houston, there was an arrangement whereby the contractors had the use of engines belonging to the railroad company; the contractors did use certain engines, and there was .an arrangement between the railway company and the construction company requiring the use of such engines and cars by the construction ■comipany. As to the individuals who made this arrangement I could not say, but there was an arrangement made between the railway company and the contractors; I was not present when any such arrangement was made, but 1 had official advice of such arrangement. My .advice was in writing and I presume it is in the files of the railway company. * * * The •originals of these bills for the several months were sent to and retained by the construction company, who checked them over, and later on, the defendant railway company and the construction company had a settlement, taking into account these bills rendered for the use of the locomotives and cars. The details of this settlement were agreed upon before I left the employ of the company, but the actual settlement was made afterwards, and the bills for the use of locomotive 302 was embraced in the general settlement, and everything of that sort, for which monthly bills had been rendered. In this connection the duplicate copy of bill identified and referred to by the witness was introduced.’
“On cross-examination: .
“ ‘This bill says: “For the use of motive power and equipment for the month of July, 1907, as per detailed statement and correspondence attached.” ’
“Responding to question, ‘Where is the correspondence?’ witness said:
“ ‘The people against whom the bill was rendered would be entitled to the correspondence; we would simply report our bill. This duplicate of the bill that I have is simply a carbon copy of the original; the original was sent to the. Kenefick-Hammond-Quigley Construction Company, and the correspondence attached went with the original to that company. That was the practice; as to the particular bill I cannot say. We didn’t necessarily keep copies of that correspondence; my office was not the office in which the details were made out. You will notice that the bill is certified by somebody else, but I did send out the bill. If the details were wanted, they would go to the office of the superintendent of motive power; they would not come to my office. I presume copies of that correspondence are in Mr. Holmes’ office. I suppose he kept a copy of the original; they are in the Beaumont office, and have been here since that time, so far as I know.’
“From the original construction contract between the railroad company and the contractors, of date November 8, 1905:
“ ‘Fifth. No part of the located line shall, pending the completion or construction of the whole of the located line, be operated otherwise than for purposes of construction, except by the railway company or under its direction. The railway company shall be entitled to operate any part of the located line, pending such completion, but in any such event the contractor will be relieved of the cost of maintaining such part so operated, and the railway company will transport all materials and supplies for the contractor, over such operated part, at the uniform rate of one cent per ton per mile, and will carry the contractor’s men free, but all such transportation and carriage shall be at the risk of the contractor. Such operation by the railway company, or under its direction, of any part or parts of the located line, pending completion of construction of the whole of the located line, shall not be deemed as acceptance by the railway company of the part or parts of the located line so operated; and provided that the .contractor may, at the contractor’s option, provide motive power and haul the contractor’s freight, material and supplies required in said construction over any part of the located line west of Sour Lake, free of charge for trackage, being responsible for and indemnifying the r'ailway company against any and all per diem, charges, car service, damages or detriment to rolling stock, or other claim or demand that may arise against the railway company out of the handling or hauling of said freight, material or supplies by the contractor.’
“Section 12 of the original contract made it the duty of the construction company to discharge ‘immediately’ any employé in any ‘way disqualified for the work entrusted to him,’ upon requisition of the chief engineer of the railway company.
“From the contract of May 7, 1907, effective May 13, 1907:
“ ‘Second. The contractors shall have the right to run trains for the purpose of transporting material and supplies over the line, free of cost, or, if desired,-the railroad company may transport said material and supplies at the rate of one cent (Id) per ton, per mile, labor to be transported free.’ ”

We think this evidence is of sufficient probative force to sustain the verdict of the jury. Giving the most favorable effect to this evidence, which a jury would be authorized to do, we do not think it should be contended that their verdict is without support, and that the undisputed evidence constituted the train crew the exclusive servants of the contractor. There was evidence from which the jury could have concluded that the train crew were the exclusive servants of the contractor, but it was within their province to discredit the testimony favorable to the defendant in error on this issue; and in passing upon the weight of the evidence, which it was their peculiar province to do, they were privileged to reach the conclusion which they did reach.

The circumstance that the construction company paid the salaries of the train crew might be regarded as strongly favorable to the contention of the defendant in error, but it is not conclusive of the issue. It is but a circumstance to be considered by the jury in connection with the other facts and circumstances in determining whether the train crew were the servants of the contractor or of the defendant in error; but in considering this evidence we are not authorized to consider it as of controlling influence upon the issue. The same is true as to each of the other circumstances in evidence tending to show that the train crew were in the exclusive employment and control of the contractor. Conclusive effect should not be given to these circumstances, where the record presents evidence tending to establish that the defendant in error had dominion over the train crew. As will be seen from the evidence quoted, it had a tendency to prove, and the jury, giving force to it, were privileged to decide, that the defendant in error had control over the train crew by whose negligence it is alleged the injury was inflicted. The jury were authorized to conclude from such evidence that the defendant'in error employed the train crew, and fixed the amount of their wages; that they contracted in writing with the said contractor, reserving the right to discharge such servants if they appeared “to be incompetent, disorderly, or intemperate, or in any other way disqualified for the work entrusted to them” — the written contract providing that in such case they should be “discharged immediately upon the requisition of the chief engineer” of the said railroad company, defendant in error; that the defendant in error reserved the right to select the train crew for the purpose of protecting its engines and cars; that it granted leaves of absence to said servants, and selected and placed substitutes in such positions during such temporary absences; and that, though the railroad was not formally delivered to the defendant in error until three days subsequent to the accident, yet the defendant in error had operated trains over it for the carriage of freight. Considering these facts, and the other facts favorablé to the plaintiff in error’s contention, quoted above, we think the evidence was sufficient to uphold the verdict of the jury upon the allegation of the plaintiff in error that the train crew were the servants of the defendant in error and that it had full dominion over them. Burton v. Railway, 61 Tex. 528; Railway v. Miller, 98 Tex. 270, 83 S. W. 182; Railway v. Shelton, 96 Tex. 316, 72 S. W. 165; Railway v. McLaughlin, 43 Tex. Civ. App. 523, 96 S. W. 1093; Standard Oil Co. v. Anderson, 212 U. S. 218, 29 Sup. Ct. 252, 53 L. Ed. 480. We accordingly hold that the honorable Court of Civil Appeals committed error in reversing and rendering the cause on said issue.

There are 11 other assignments of error presented by the defendant in error, which were not considered by the Court of Civil Appeals, for the reason that in its view of the case it was unnecessary to decide them; they considering that the cause should be reversed and rendered on the issue herein discussed. There being no findings of fact presented on these other assignments of error by the Court of Civil Appeals, and considering the nature of the questions presented in said assignments, we think the cause should be remanded to that court for its decision of the questions presented in said other assignments of error.

It is accordingly ordered that the judgment of the Court of Civil Appeals, rendering this cause in favor of the defendant in error, be here reversed, and the cause remanded to said Court of Civil Appeals for its further action in passing upon said assignments of error.

       — other cases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes


author: CARL, J.

text:
    McMURRY et al. v. TUTTLE.
    (No. 5541.)

    (Court of Civil Appeals of Texas. San Antonio.
    Dec. 22, 1915.
    Rehearing Denied Jan. 12, 1916.)
    1. Brokers &wkey;>74 — Liability iron Broker's Commission.
    A firm owning an interest in land, and which had agreed to pay plaintiff a commission on sales of such lands, sold its interest to L. and D., who assumed contracts with various purchasers, and agreed to pay the commissions due agents out of payments by purchasers. The purchase was made by L. and D. for the benefit of persons who subsequently formed a partnership with them, but who were not then partners of L. and D. Held that such persons were not liable to plaintiff for commissions, as a partnership is much more far-reaching in its effects than a mere purchase of property together, and such a purchase or the taking and holding of a beneficial interest in property bought by another does not constitute the parties partners, within the rule that one party may make a contract binding upon the assets of each member of the partnership.
    [Ed. Note. — Eor other cases, see Brokers, Cent. Dig. § 62; Dec. Dig. @^>74.]
    2. Appeal and Ereos &wkey;>1175 — Disposition op Case — Rendering Final Judgment.
    Where a case was fully developed in so far as plaintiff was concerned, and did not show liability on the part of certain defendants to-plaintiff, and the testimony of other parties not testifying on the trial could not have showed such liability, a new trial would not be granted upon the reversal of a judgment for plaintiff as against such defendants.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 4573-^=587; Dee. Dig. &wkey; 1175.]
    Appeal from District Court, Dimmit County ; J. E. Mullally, Judge.
    Action by W. E. Tuttle against Wm. Mc-Murry, T. D. Polk, and others. Prom a judgment for plaintiff, the defendants named appeal.
    Affirmed in part, and reversed and rendered in part.
    Mangum & Townsend, of San Antonio, and Vandervoort & Johnson, of Carrizo Springs, for appellants. J. O. Rouse, of Carrizo Springs, and Love & Ellis, of Uvalde, for ap-pellee.

       Application ior writ of error pending in Supreme Court.

   CARL, J.

W. E. Tuttle sued the Hust & Brundage Company, a firm composed of Harry Hust, S. P. Brundage, Eli Howell, and H. C. King, and the members individually, and the firm of Howell Bros. Company, alleged to be a firm composed of Eli Howell, Lee Howell, Wm. McMurry, Otto S. Dowlen, T. L. Polk, Jerry Long, E. B. Long, and --— Powell, and each of said members individually, to recover commissions for the sale of various tracts of land out of what was known as the “Big 4 Colony.” The petition charges that the plaintiff had a contract, made with the Hust & Brundage Company, which had a sales agency for the lands, whereby he was to receive 10 per cent, on the sale price of all land sold by him, and he named the contracts of sale which he made and on which he alleged his commissions amounted to $8,180.

The petition alleges that E. B. Long and O. S. Dowlen took over from the Hust & Brundage Company the contracts made with the various purchasers and assumed to carry them out and to pay commissions due agents as purchasers made their payments on the land. These commissions were to be paid, under the contract, partly out of the cash payments, and then, as the purchasers made other payments, the remainder of the commission was to be paid. He alleged that the commission had become due upon 21 tracts by reason of the defendants having purchased back the land from those to whom it was sold; that his commission on two contracts had become due by reason of the failure of the defendants to furnish water as contracted, thereby causing the two purchasers to be unwilling and unable to perform their contracts and causing said two purchasers to abandon their land; and that his commissions on nine contracts had become due by reason of the failure of defendants to furnish the purchasers water as per contract, thereby causing the nine purchasers to abandon their contracts. Further, that he was due his commission on the Huffman land because same had been paid for. The petition charges that when the Hust & Brundage Company sold to Long and Dowlen, they assumed the obligation to pay plaintiff and other obligations of said selling company; that while title to the land and choses in action was taken in the name of Long and Dowlen, they in fact took same in trust for Howell Bros. Company and each member thereof, and that the individuals composing said firm were Eli Howell, Lee Howell, Wm. McMurry, Otto S. Dowlen, T. L. Polk, Jerry Long, E. B. Long, and - Powell, and he therefore sued Howell Bros. Company, and each alleged mem'ber individually, as beneficiaries in said trust and as partners in said transaction.

These allegations were denied. When plaintiff rested, upon motion for an instructed verdict, the court stated that he would withdraw the case from the jury so far as Howell Bros. Co., Lee Howell, and the nonresidents, H. C. King, E. B. Long, Otto S. Dowlen, J. W. Long and J. E. Powell, were concerned. The jury’s verdict was that plaintiff recover $4,600 against the Hust & Brundage Company, Harry Hust, Eli Howell, Wm. McMurry, and T. L. Polk, and that he take nothing as against Howell Bros. Company and Lee Howell, and, as to the nonresidents mentioned, they were dismissed.

Two purchases of the Hust & Brundage Company’s interests were made, the first November 22, 1909, and the other in February, 1911. It may be stated that the evidence, if not uneontradicted, is at least sufficient to show that when Long and Dowlen purchased these interests appellants McMurry and Polk took and held a beneficial interest in the same, although they did not appear in the purchase. It is also established that Mc-Murry and Polk were members of the firm of Howell Bros. Company when it was organized, but this was not done until some time in August, 1911. There is no sufficient evidence to show that there was a partnership existing between appellants and Long and Dowlen at the time of the purchase of either of these interests. Most of the sales contracts upon which commissions are sought by appellee were made in 1909 and 1910, but none were made as late as February, 1911. So, at the time the claim for commissions is alleged to have accrued, all that can be said, in so far as appellants are concerned, is that they had an interest in the contracts purchased and had an interest in the property taken over by Long and Dowlen, although their names did not appear.

When, upon the trial of the ease, it developed that Howell Bros. Company had not been organized at the time these contracts were made or at the time Long and Dowlen assumed to carry the same out, that partnership, as such, was eliminated by the court; but appellants were held on the theory that Long, Dowlen, McMurry, Polk, and others took and held a beneficial interest in that purchase. There is no testimony that either of the appellants was a member of the firm of the Hust & Brundage Company. McMurry says that he was a member of Howell Bros. Company when it was organized later, which was in August, 1911, but that in the Long and Dowlen purchase, wherein it assumed to carry out appellee’s contract, along with others of the Hust & Bjtrundage Company, he, Polk, and others took and held a beneficial interest in the lands, etc., so conveyed to Long and Dowlen. The testimony of appellee, himself, goes no further than to show that appellants “took and held a beneficial interest” in the purchase made by Long and Dowlen, but it does not show that they constituted' a partnership. Not all parties who buy property together are partners ; there is something more necessary to be alleged and proven. There must be a partnership agreement, either express or implied, and there is no such showing made here. A partnership is much more far reaching in its effects than a mere purchase together of property, for it carries with it responsibilities, powers, and liabilities which do not attach to the mere purchase together of property. One partner may make a contract which, in its effect, is binding upon the assets of each member thereof, and it would never do to hold that the mere purchase together of property, or the taking and holding of a beneficial interest in property bought by another, who holds the same in trust for those interested therein, would constitute all such owners partners in law.

It is not necessary for us to go into details in the discussion of this subject, because we have only recently held, in Manley v. Noblitt, 180 S. W. 1154, opinion dated November 17, 1915, and not yet officially reported, that one taking and holding a beneficial interest in property placed in the name of another is not liable upon such written contract, even in a case where the parties not named were in fact known and were in fact real owners. In the ease mentioned we followed the holding of the Supreme Court in Heffron v. Pollard, 73 Tex. 99, 11 S. W. 165, 15 Am. St. Rep. 764, and Sanger v. Warren, 91 Tex. 478, 44 S. W. 477, 66 Am. St. Rep. 913.

So, if we concede all that appellee shows, which is that the purchase and assumption of the contracts was for the benefit of appellants as well as for Long and Dowlen,nothing is shown upon which appellants could be held liable. And, since it appears that the case was fully developed in so far as the plaintiff below was concerned, and that the testimony of the other alleged members of the firm in Tennessee, at most, would only substantiate McMurry’s statement that the contracts, etc., were bought for their interest as well as Long’s and Dowlen’s, but that they were not partners, there will be no use in sending the case back for another trial. In the affidavit in support of the motion for new trial Long and Dowlen swore that- they never had any partnership agreement with appellants in regard to this matter.

Therefore, the judgment of the trial court is reversed, and judgment is here rendered that appellee take nothing as against appellants ; but, since Eli Howell and the 1-Iust & Brundage Company and the members thereof did not appeal, that part of the judgment is affirmed.
      igs^For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HIGGINS, J.

text:
    GESTEAN et al. v. BISHOP et al.
    (No. 498.)

    (Court of Civil Appeals of Texas. El Paso.
    Jan. 20, 1916.)
    1. Appeal and Ereor <@=882 — Invited Eb-boe.
    Where the assignments of error questioned the portions of the trial court’s general charge, but plaintiffs in error unconditionally requested a charge, which was given, containing the same vice and in harmony with the charge attacked, plaintiffs in error were precluded from complaining of the charge given.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3591-3610; Dec. Dig. <@= 882.]
    2. Tbial <@=258 — Instruction—Conditional Request.
    If plaintiffs in error desired a requested charge to be given only if their more favorable charges were refused, a conditional request for its submission should have been made.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 646, 647; Dec. Dig. <@=258. ]
    3. Courts <@=247 — Certified Questions — Appellate Jurisdiction.
    Where dissent to the majority opinion is not on a question of law material to the decision, a motion to certify will be overruled.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 487, 749, 751-754, 757, 759, 760, 762-764 ; Dee. Dig. <@=247.]
    Error from District Court, El Paso County; M. Nagle, Judge.
    Action by Clark Bishop and others against Anna Gestean and others. Motion by defendants, plaintiffs in error, to certify the cause to the Supreme Court upon the dissent of Chief Justice Harper (181 S. W. 480) from the majority opinion (180 S. W. 302) of the Court of Civil Appeals.
    Motion overruled.
    Ooldwell & Sweeney, of El Paso, for plaintiffs in error. F. G. Morris and M. W. Stanton, both of El Paso, for defendants in error.

      Application for writ of error pending in Supreme Court.

   HIGGINS, J.

Plaintiffs in error have filed a motion to certify, based upon the dissent of Chief Justice Harper from the conclusion reached by the majority, as stated in his dissenting opinion herein. It is thus material to determine whether Judge Harper is-in disagreement with the majority upon any question of law material to the decision.

Plaintiffs in error, by their assignments of error, question the correctness of those portions of, the court’s general charge which read:

“You are instructed that the issues of fact for you to determine, under defendant’s plea of the statute of limitation of ten years, are: Were the defendants Daniel A. Gestean and Mrs. Anna Gestean in peaceable and adverse possession of the lands in controversy, using, cultivating, or enjoying the same, and claiming title thereof for ten consecutive years for any period of time prior to the 25th day of May, 1907, the date of the filing of plea of intervention by defendant Daniel A. Gestean in suit of Olark Bishop and others against Winn & Thorne? * * *
“Now, if you find from a preponderance of the evidence that the defendant Mrs. Anna Gestean and her vendor, the said Daniel A. Gestean, were in peaceable and adverse possession of the lands in controversy, under a claim of ownership, cultivating, using, or enjoying the same for ten consecutive years prior to the 25th day of May, 1907, you will find for the defendant Mrs. Anna Gestean; but, should you not so find you will find for the plaintiffs.”

Upon examination of the record, we find that plaintiffs in error unconditionally requested the court to give the following special charge:

“If you believe and find that defendants at any time prior to the 25th day of May, 1907, went into or took actual, adverse, and exclusive possession of the premises in controversy by inclosing the same with a fence, and that thereafter they continued for the full period of ten years prior to May 25, 1907, to occupy and to cultivate, use, or enjoy the property, and that their possession thereof was actual, hostile, visible, exclusive, and adverse to the claim and title of plaintiffs for the full period of ten years prior to said May 25, 1907, then your verdict should be for the defendant Anna Gestean.”

This charge was given by the court as requested. It is well settled that a party cannot complain of instructions containing a vice common to and which is in harmony with one given at his own instance. Lackey v. Bennett, 65 S. W. 651; Poindexter v. Receivers, etc., 101 Tex. 322, 107 S. W. 42; Railway Co. v. Sein, 89 Tex. 66, 33 S. W. 215, 558; Railway Co. v. Stillwell, 46 Tex. Civ. App. 647, 104 S. W. 1071; Thompson v. Planters, etc., 48 Tex. Civ. App. 235, 106 S. W. 470. It is thus plain that the error in the court’s charge, if any, was invited by plaintiffs in error, and they are precluded from complaining thereof.

There were other charges in the record requested by plaintiffs in error, presenting the issue of limitation from a more favorable standpoint, which were refused by the court. The special charge which we have quoted, however, was unconditionally requested, and plaintiffs in error cannot complain if the court selected and gave the charge requested by them upon the issue of limitation which was least favorable to them. If plaintiffs in error desired the above-mentioned instruction to be given in the event only their more favorable charges upon the issue were refused, then a conditional request to that effect should have been made for its submission. Railway Co. v. Maples, 162 S. W. 426; Alamo, etc., v. Yeargan, 123 S. W. 721; Alamo, etc., v. Curvier, 136 S. W. 1132; Hill, etc, v. Gathings, 154 S. W. 664; Railway Co. v. Crosson, 39 Tex. Civ. App. 369, 87 S. W. 867.

For the reason indicated, the entire court is of the opinion that plaintiffs in error are precluded from complaining of the error, if any, in the court’s charge, and their assignments of error are therefore without merit and should be overruled.

In view of the conclusion now reached, the disagreement of Chief Justice Harper from our original opinion is not upon a question of law material to the decision, and the motion to certify will therefore be overruled.
      <§37>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RICE, J.

text:
    PECK-HAMMOND CO. v. HAMILTON INDEPENDENT SCHOOL DIST.
    (No. 5547.)
    (Court of Civil Appeals of Texas. Austin.
    Dec. 11, 1915.
    Rehearing Denied Jan. 12, 1916.)
    1. Cokpobations <&wkey;601 — Foreign Corporations — Right to Sue.
    Where plaintiff, a foreign corporation, failed to comply with the statute requiring the filing of articles of incorporation with the secretary of state, it could not maintain an action against defendant for money due under an executed contract to furnish and erect a steam heating plant for defendant school district, since Yernon’s Sayles’ Ann. Civ. St. 1914, art. 1318_, provides that a foreign corporation can maintain no suit in the state for a right arising out of tort or contract unless at the time the tort was committed or such contract made, the corporation had complied with such provision for filing its articles.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2536, 2539, 2542-2544, 2546, 2603-2567; Dec. Dig. &wkey;661.]
    2. Corporations <&wkey;6Cl — Foreign Corporations — Action—Jurisdiction.
    The fact that in a suit brought by a foreign corporation on such contract, the petition contained a second count for goods sold by plaintiff to defendant, did not authorize a recovery where the amount claimed under such count was not within the jurisdiction of the district court.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2536, 2539, 2542-2544, 2546, 2563-2567; Dec. Dig. &wkey;G61.]
    Error from District Court, Hamilton County ; J. H. Arnold, Judge.
    Action by the Peck-Hammond Company against the Hamilton Independent School District. From a judgment sustaining a demurrer to the complaint, and dismissing the suit, plaintiff brings error.
    Affirmed.
    J. L. Lewis, of Hamilton, for plaintiff in error. Eidson & Eidson, of Hamilton, for defendant in error.
   RICE, J.

Plaintiff in error, a foreign corporation doing business in the city of Cincinnati, Ohio, brought this suit against defendant in error to recover a balance claimed to be due it on a contract for furnishing and erecting a steam heating apparatus in the public school building in the city of Hamilton. Defendant in error specially excepted to the petition on the ground that it failed to allege that plaintiff in error had a permit to transact business in the state of Texas, without which, it asserted, plaintiff in error could not maintain this suit, which demurrer was sustained, and plaintiff in error failing to amend, the suit was dismissed, from which judgment this writ of error is sued out.

The petition discloses that plaintiff in error is a foreign corporation, with its principal office in the city of Cincinnati, Ohio; it alleges that defendant in error entered into a contract with it, by which it agreed to furnish and erect for defendant in error a steam heating apparatus in the public school building at Hamilton, in accordance with certain plans and specifications and guarantees contained in the contract, for which it was to receive, when completed, a specified sum of money therein set forth; hut there was no averment showing that plaintiff in error had a permit to transact business within the state of Texas.

By articles 1315 and 1316, vol. 1, Vernon’s Sayles’ Civ. Stats., the method is pointed out by which a foreign corporation may obtain a permit to do business within this state; and, upon complying therewith, article 1317, Id., provides that such corporation, on obtaining such permit shall have and enjoy all the rights and privileges conferred by the laws of this state on corporations organized under the laws of this state. But by article 1318, Id., it is provided that no such corporation can maintain any suit or action, either legal or equitable, in any of the courts of this state, whether arising out of contract or tort, unless at the time such contract was made or tort committed, the corporation had filed its articles of incorporation under the provisions of this chapter in the office of the secretary of state for the purpose of procuring its permit.

The petition disclosing as it does that plaintiff in error is a foreign corporation, and that its claim and demand grows out of business transacted by it in this state, and failing to show that it has a permit to do business within this state, as required by the article last cited, the court properly sustained the special exception setting up its failure so to allege. See Taber v. Bldg. Ass’n, 91 Tex. 92, 40 S. W. 954; Bank v. Holland, 103 Tex. 266, 126 S. W. 564; Smythe County v. Ft. Worth Glass & Sand Co., 105 Tex. 8, 142 S. W. 1157.

Notwithstanding there was a second count in the petition for goods sold by plaintiff in error to defendant in error, yet, as the amount claimed therefor was not within the jurisdiction of the court, this fact would not of itself authorize a recovery.

Believing that the court did not err in sustaining the demurrer and dismissing the suit, its judgment is in all respects affirmed.

Affirmed.
      <g=»Por other eases see same-topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BROOKE, J.

text:
    SOUTHERN WELLS SALES CO. v. EASTHAM.
    (No. 27.)
    (Court of Civil Appeals of Texas. Beaumont.
    Dec. 16, 1915.)
    1. Appeal and Eekok <&wkey;934 — Review—Presumptions.
    Where a case was tried to the court which did not file any conclusions of fact or law, but rendered general judgment, the appellate court will impute to the trial court findings in support of the judgment if there is any evidence to support them.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3777-3782; Dec. Dig. &wkey;> 934.]
    2. Appeal and Error <&wkey;1011 — Review — Findings.
    The appellate court is loath to disturb a finding of fact by the trial court on conflicting evidence.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3983-3989; Dec. Dig. &wkey;> 1011.]
    3. Master and Servant <&wkey;39 — Breach op Contraco^-Bijrden of Proof.
    In an action by a servant to recover as damages for the master’s breach of a contract of employment the salary which he would have earned before the expiration of the term of employment, the master has the burden of pleading and proving that the servant did not attempt to minimize damages by securing other like employment.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 12, 45, 46; Dec. Dig. <&wkey;> 39.]
    Error from Jefferson County Court; R. W. Wilson, Judge. .
    Action by A. L. Eastham against the Southern Wells Sales Company, begun in justice court and appealed to county court. There was a judgment for plaintiff in county court, and defendant brings error.
    Affirmed.
    V. A. Collins, of Beaumont, for plaintiff in error. McCall, du Perier & O’Fiel, of Beaumont, for defendant in error.
   BROOKE, J.

On the 4th day cf December, 1913, the defendant in error brought this suit in justice court precinct No. 1, Jefferson county, Tex., against plaintiff in error, for the sum of $132.90, alleged by defendant in error to be due him by plaintiff in error for breach of contract of employment — that is, alleging that he was employed by plaintiff in error by the month, at $175 per month — that on July 12, 1910, plaintiff in error discharged him, without fault on his part, and refused to allow him to complete his month, and refused to pay him for the part of the month during which he was not permitted to work, and alleged that he was unable to obtain employment for the balance of the month, and offered to complete the current month’s service with plaintiff in error, but that said parties refused to allow him to complete the term of service alleged. Plaintiff in error answered that defendant in error was discharged for insubordination, and that at the time he was discharged he was engaged in the organization of a competing company to compete with the business of plaintiff! in error, and that plaintiff in error could not afford to keep him in its employ, on that account. On the 9th day of January, 1914, a trial was had, resulting in judgment in favor of the defendant in error for the amount sued for. In due time the plaintiff in error perfected its appeal to the county court of Jefferson county. In the county court a written answer was filed by plaintiff in error, elaborating on the defenses urged in the justice .court. On the 30th day of November, 1914, said cause was tried de novo in said county court, resulting again in a judgment in favor of the defendant in error. Plaintiff in error timely filed its motion for new trial, which the court overruled on December 21, 1914, to which action the plaintiff in error excepted, and gave notice of appeal, but the appeal was not perfected. However, on February 3, 1915, plaintiff in error filed a petition for writ of error, and filed its writ of error bond, and notice was given, and the case is now properly before this court.

The plaintiff in error’s first assignment assails the action of the lower court in finding as a fact that defendant in error had a contract of hire with plaintiff in error by the month, and that the defendant did not have the right to dispense with defendant in error’s services whenever it desired to do so, and contended that the evidence showed that defendant in error was paid his wages semimonthly.

While the case was tried by the lower court, he did not file any conclusions of fact and law, but rendered a general verdict for the defendant in error. It has been held that, where the record contains no findings of fact, the court will impute to the trial court such a finding, if there is evidence to support it. Ragley Lbr. Co. v. Ins. Co., 42 Tex. Civ. App. 511, 94 S. W. 185; Harris v. Monroe Cattle Co., 84 Tex. 674, 19 S. W. 869; Webb Co. v. Hasie, 52 Tex. Civ. App. 16, 113 S. W. 188-190; Railway Co. v. Dorman, 62 S. W. 1086; Anderson v. Carter, 29 Tex. Civ. App. 240, 69 S. W. 78; Tuggle v. Iron Co., 30 Tex. Civ. App. 393, 70 S. W. 555; Spalding v. Aldridge, 50 Tex. Civ. App. 230, 110 S. W. 560. There was evidence in the record, which, if believed by the trial court, would support a finding that the defendant in error was employed by the month, and worked by the month, and we are not inclined to disturb the finding of the court. Plaintiff in error’s first assignment is therefore overruled.

By his second assignment of error, plaintiff in error urges that the lower court erred to its prejudice in holding that defendant in error had any contract of employment with plaintiff in error for any particular time, and, without going into details, what has been said before with reference to the first assignment of error will obtain with respect to this assignment, and we are not disposed, while the evidence is conflicting, to disturb the finding of the court. The second assignment is overruled.

By its third assignment, the plaintiff in error claims that the lower court erred to its prejudice in not holding that defendant in error had failed to discharge the duty the law puts upon him to minimize the damages all he could.

There is evidence in the record to show that defendant in error tried to find employment of the same character at other places, but was not successful in doing so, and the law, as we understand it, does not require the defendant in error to plead and prove a failure to secure employment, but this burden was placed upon the plaintiff in error, and it must have pleaded and proved such matters as a defense in the trial court, and it not having either pleaded or proved such matters, and the issue having been raised for the first time in the motion for new trial, plaintiff in error cannot be heard to complain now. The following authorities support the view of the court in this matter: Weber Gasoline Co. v. Bradford, 34 Tex. Civ. App. 543, 79 S. W. 46; Efron v. Clayton, 35 S. W. 424; Telephone Co. v. Bross, 45 S. W. 178. Plaintiff in error’s third assignment is therefore overruled.

By the fourth assignment of error, plaintiff in error claims the court erred in refusing to hold that it had a right to dispense with the services of defendant in error at the time it did so, claiming that the evidence showed that defendant in error had, while in its employ, organized a rival business.

The testimony, in the view we have taken of it, does not sustain plaintiff in error’s contention on this point. This assignment is therefore overruled.

The case was tried in the lower court, and, so far as this record discloses, plaintiff in error had a fair, and impartial trial, and no injustice has been done it, so far as we are able to discover, and the judgment of the lower court is in all things affirmed.

It is so ordered.
      <§^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes