text:
    DECATUR COTTON SEED OIL CO. v. BELEW.
    (No. 8159.)

    (Court of Civil Appeals of Texas. Ft. Worth.
    May 1, 1915.
    Rehearing Denied June 5, 1915.)
    1. Pleading &wkey;>34 — Petition — Aider by VERDICT AND JUDGMENT.
    When not questioned by demurrer, the petition, after verdict and judgment, should be given a liberal construction to support the proceedings.
    [Ed. Note. — Por other cases, see Pleading, Cent. Dig. §§ 5%, 66-74; Dec. Dig. &wkey;34.]
    2. Negligence <&wkey;>138 — Instructions—Submission of Issues.
    It is only necessary to submit to the jury each of an entire series of negligent acts made the foundation of an action when proof of each act is necessary to show negligence.
    [Ed. Note. — Por other cases, see Negligence, Cent. Dig. §§ 354-370; Dec. Dig. <&wkey;138.]
    3. Master and Servant <&wkey;>264r — Injuries to Servant — Actions—Complaint.
    The complaint of a servant, injured when the walls of the building in which he worked collapsed and precipitated a water tank upon him, alleged that the building and the walls were under the exclusive control of the master, that the servant did not fully know the condition and defects therein, but believed that the walls and support were negligently constructed and permitted to become dangerous, in that the walls were built in two sections in no way connected, that the inner section was constructed of small stones held together with inferior mortar, that water was allowed to drip upon and wash away the mortar, and that the supports for the tank rested solely on the inner wall. The charge submitted to the jury the questions whether the walls of the room in which the servant worked were negligently constructed, and whether they were allowed to become weakened by the dripping of water, etc., and authorized a verdict for the servant if the master was negligent in any of the several particulars. Held that the complaint warranted submission to the jury of the question whether the master was negligent in any of the several ways alleged, notwithstanding that the negligent acts were alleged in the conjunctive.
    [Ed. Note. — Por other cases, see Master and Servant, Cent. Dig. §§ 861-876; Dec. Dig. <5&wkey; 264.]
    4. Appeal and Error <&wkey;1066 — Review — Harmless Error.
    In such case where it appeared that no unusual strain was imposed upon the walls, a charge that while the master was not an insurer of the servant’s safety, it was his duty to use ordinary care to furnish a reasonably safe place to work, and that the servant could assume that the building was safe and was not required to inspect it, etc., cannot be held prejudicial as submitting grounds of negligence not pleaded, for it would be unreasonable to suppose that the jury, which had before it evidence of negligent acts alleged, went into the realm of conjecture.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. § 4220; Dec. Dig. <®^=>1066.]
    5. Master and Servant &wkey;>264r-lNJURiES to Servant.
    In such ease, notwithstanding the specific allegations of negligence, the complaint was broad enough to authorize an inquiry into the attending circumstances and causes of the accident, and so the jury were entitled to refer the facts relating to the control of the building and the circumstances relating to its fall to the specific acts of negligence charged, though the doctrine of res ipsa loquitur might not be invoked, specific negligence having been pleaded.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 861-876; Dec. Dig. <&wkey;> 264.]
    6. Master and Servant &wkey;>265 — Injuries to Servant — “Res Ipsa Loquitur.”
    While"' the doctrine of res ipsa loquitur, which is a presumption of negligence arising where the particular thing causing the injury has been shown to be under the management of the defendant, and the accident to be one which would not happen in the ordinary course of events, does not ordinarily apply to master and servant cases, it may apply in extraordinary cases.
    [Ed. Note. — Por other cases, see Master and Servant, Gent. Dig. §§ 877-908, 955; Dec. Dig. <&wkey;>265.
    Por other definitions, see Words and Phrases, First and Second Series, Res Ipsa Loquitur.]
    7. Trial <&wkey;260 — Instructions—Refusal.
    The refusal of special requests covered by those given is not error.
    [Ed. Note. — Por other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. &wkey;260.]
    8. Trial &wkey;>131 — Arguments of Counsel.
    Where part of counsel’s argument was plainly within the scope of the evidence, and the objection went to the whole, the argument will not be considered reversible error, particularly where the matter was treated with levity by counsel and the court.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 312-314; Dec. Dig. &wkey;131.]
    9. Appeal and Error &wkey;>1060 — Review — Harmless Error.
    Improper argument of counsel will not warrant reversal, unless it appears that the verdict was affected by such argument.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4135; Dec. Dig. &wkey;sl060.]
    10. Trial <&wkey;121 — Argument — Personas Injuries — Award.
    Where plaintiff’s injuries resulted in pa-raylsis, argument of counsel that plaintiff was entitled to have damages assessed because his injuries would preclude him from having children, and thus he would suffer mental anguish is warranted, for mental anguish would naturally result from such injury and inability to perpetuate the race.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 294r-298, 300; Dec. Dig. <&wkey;121.]
    11. Master and Servant <&wkey;270 — Injuries —Evidence—Condition of Building.
    In an action by a servant for injuries resulting from the collapse of a building, a witness who saw the building and the wails a few hours after the accident may testify as to their condition and as to the mortar being washed ont.
    [Ed. Note. — Por other cases, see Master and Servant, Oent. Dig. §§ 913-927, 932; Dec. Dig. <&wkey;270.]
    12. Evidence <&wkey;513 — Opinion Evidence — Experts.
    An experienced builder may testify as to defects he discovered in the walls of the building which collapsed, such testimony not invading the province of the jury.
    [Ed. Note. — For other cases, see Evidence, Oent. Dig. §§ 2317, 2318; Dec. Dig. &wkey;513J
    13. Evidence <&wkey;18 — Judicial Notice — Weight op Water.
    The court will take judicial notice that a gallon of water weighs 8% pounds.
    [Ed. Note. — For other cases, see Evidence, Oent. Dig. § 22; Dec. Dig. &wkey;>18.]
    14. Evidence &wkey;>553 — Opinion Evidence — Hypothetical Questions.
    Where the walls of a building collapsed, precipitating a water tank upon plaintiff, an hypothetical question to an expert builder which assumed that the tank contained 6,000 gallons instead of 5,500 is not objectionable, it being sufficient in such cases that the evidence be substantially embodied in the hypothetical question, and the error going to the weight and not the competency of the testimony.
    ■ [Ed. Note. — For other cases, see Evidence, Oent. Dig. §§ 2369-2374; Dec. Dig. &wkey;553.]
    15. Damages <&wkey;132 — Personal Injuries — Measure.
    Plaintiff, a strong, healthy man of 21 years of age, earning about $1.75 a day, who had just been married, was injured by the collapse of a building. The accident resulted in a broken leg, in injuries to his forehead, and in injuries to his back which caused paralysis. After the accident he lost sexual power and could not control his excretions, and his legs and body seemed to be wasting away. He incurred medical expenses to the extent of about $1,000 and required the almost constant attention of his mother and wife. The injuries were permanent. Held that an award of $20,000 was not excessive.
    [Ed. Note. — For other cases, see Damages, Oent. Dig. §§ 372-385, 396; Dec. Dig. &wkey;132.]
    Appeal from District Court, Wise County; F. O. McKinsey, Judge.
    Action by J. S. Belew against the Decatur Cotton Seed Oil Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Thompson & Barwise and A. C. Wood, all of Ft. Worth, Ford & Ratliff, of Decatur, and Etheridge, McCormick & Bromberg, of Dallas, for appellant. McMurray & Gettys, R. E. Carswell, and J. V. Patterson, all of Decatur, for appellee.

       Writ of error pending in Supreme Court.

   CONNER, C. J.

In October, 1913, the appellant corporation was engaged in the man-ufacturé of cotton seed products, and appel-lee was in the employ of the corporation as a “linterman.” The duty of the linterman was to convey from the second floor of the main building to the cotton press in the “pressroom” the lint cotton separated from the cotton seed, and there cause it to be pressed into bales of convenient size. The pressroom was a two-story structure, adjoining the main building on the east. It was 20 feet north and south and 18 feet east and west. Its ground floor furnished the base for the cotton press, the mouth of the press being within a few feet of the horizontal plane of the second story of the main building. The east wall of the main building constituted the west wall of the pressroom. In this wall, however, there was an opening, through which the linterman conveyed the lint cotton from the second story of the main building to the mouth of the press into which the lint cotton was deposited. Over the roof of the pressroom, by the walls of which the structure was supported, there was situated a water tank with a capacity of about 5,500 gallons, which, for fire protection and cleansing purposes, it was the practice to fill weekly.

While the plaintiff was so employed, and while engaged in the performance of his duties in the pressroom, the walls of the pressroom suddenly collapsed, the water tank descended, carrying everything below with it, and appellee was very seriously injured in the wreck. To recover the damages resulting from such injuries appellee sued, and on the trial below recovered a judgment for $20,000, from which appellant has prosecuted an appeal.

Inasmuch as apipellant urges a number of objections to the court’s charge for want of sufficient support in the pleadings, we quote such parts of the pleading and charge as are deemed to be pertinent. Appellee, after describing the pressroom and the character of his duties, alleged:

“That on said 25th day of October, 1913, while plaintiff was at work in said pressroom, the walls and supports above said pressroom sustaining the said water tank gave way and fell, carrying said water tank with its accompanying debris on and into said pressroom, falling on this plaintiff, and greatly crushing, injuring, and crippling him, as hereinafter more particularly set out.
“That said building and the walls thereof were under the exclusive control of defendant, and plaintiff does not, and did not, know fully the condition and defects therein, but believes that the walls of said press building and supports for said tank were by defendant negligently constructed, maintained and permitted to weaken and decay and become dangerous, in the manner following: That the walls of said press building were built in two sections in close proximity to each other but in no manner tied together so that the one section of the wall could have the support of the other section; that said, two sections were so constructed independently of each other from the ground to the top, so that one was the inner section and the other the outer section; that the inner section of said walls was constructed of stones of indiscriminate shapes and sizes not suitable or proper to be put into such wall, which said stones were promiscuously laid in mortar of inferior quality, such as would easily dissolve and fall out from between the rocks, and a great part of which had been dissolved and washed out, prior to said accident, by water that had been negligently permitted by defendant to constantly run over out of said tank and down through and over the said walls; that the said timbers on which the' said tank rested at the top of said walls were so short that they did not extend into or ovieB the outer section of said wall so as to have its support, but rested all of their weight and the weight of said tank on the inner section of said wall and were permitted to decay and become weak and insecure, and the said inner section oí said wall, by reason of its said negligent construction and the permitting of said mortar to be dissolved and washed out, became too weak and defective to support said timbers, tank, and water resting thereon, and same crumbled and fell as hereinbefore stated.
“That defendant was negligent in constructing and maintaining said walls, timbers, and tank in such defective condition above shown, in permitting the walls of said press building and the supports of said tank to weaken and decay and thereby become dangerous, and in failing to properly inspect and repair the same, which said negligence on the part of defendant rendered the place of work of this plaintiff unsafe and dangerous and was the proximate cause of the injuries sustained by plaintiff.”

The court thus submitted the main issues:

“Gentlemen of the jury: If, from a preponderance of the evidence, you believe that while plaintiff was in the employ of the defendant andl at work in its pressroom, where the duties of his employment made it proper for him to be, the walls and superstructures of the building in which said room was located fell upon plaintiff, and that he thereby received the injuries complained of; and if you believe that the walls of said building consisted of an outer and inner wall, and that the timbers which supported the water tank and tower on said building rested upon the inner section only of said walls; and if you believe that the inner section of said wall was too weak to support the weight upon it and 'rendered it liable to fall, and that the defendant in the exercise of ordinary care and foresight should have known those facts, if they were facts; or if you believe from the evidence that said wall, by reason of the manner in which it was constructed and the stones and other material of which it was made, was too weak to bear the weight resting upon it, and that the defendant, in the exercise of ordinary care and prudence, ought to have known that fact, if it were a fact; or if you believe from the evidence that the mortar with which said wall was constructed had been dissolved and washed out by water from the tank overflowing and running down over said wall, and that said wall or walls had thereby become weakened and insufficient to support the water tank and weight resting upon said wall or walls, and that the defendant knew that fact, or by the use of ordinary care could have discovered-the fact, if it were a fact; and if you believe the building fell and injured plaintiff, by-reason of the defects in construction, or the defective condition of the wall or walls of said building, above referred to, if there were any such defects of construction or in the condition thereof, and if you believe plaintiff’s said injuries, complained of, resulted directly and proximately from the failure of the defendant to use ordinary care in respect of any or all of the matters above referred to — you will find for the plaintiff, unless you find for the defendant under other instructions given you.
“1a. If the building fell and injured plaintiff on account of some defect or defects in the construction of same, and if its having become defective and insecure, as claimed by plaintiff, yet If such defective and insecure condition or such defects were not known to the defendant, or if the defendant, in the exercise of ordinary care, could not have discovered any such defects or such defective and insecure condition, if such existed, then and in that event the defendant, would not be liable, and in case you so believe | j and find from the evidence, you will find for the defendant.
“2. The defendant was not an insurer of the safety of the plaintiff, while in its employ; but the duty devolved upon the defendant to use ordinary care to furnish the plaintiff a safe place in which to work, and use ordinary care to inspect the building in which it put plaintiff to work, and to discover and remedy defects which would render his employment dangerous, and for any failure to exercise such ordinary care, and to discover and remedy such defects, if any, which would render plaintiff’s employment haa-ardous, and which could have been discovered by the use of ordinary care, and from which injury resulted, the defendant would be liable. The plaintiff had a right to assume that the building in which he was put to work was safe, and he was not required to inspect the same to ascertain if it were safe, before entering upon his work therein; but if said building fell and injured him by reason of defects therein, and if said defects were known to him, or were open and obvious (that is, patent to the view of a person of ordinary prudence, so that in the discharge of his duties he must have known of them), he cannot recover, and if you so believe from the evidence you will find for the defendant.
“3. ‘Ordinary care,’ as used in this charge, means that degree of care which a person of ordinary care and prudence would use under like circumstances.”

The complaint of the first paragraph of the court’s charge is:

“That the court submitted three separate, and distinct combinations of facts, each as an independent basis of liability, whereas, under the pleading of the appellee, it required a finding in his favor as to ah of the facts in these three combinations, in order to entitle him to a verdict.”

| In the absence of complaint by demurrer, and after verdict and judgment, the pleading should be given a liberal construction so as to support the proceedings. See Schuster v. Fredenthal, 74 Tex. 53, 11 S. W. 1051. So construing the allegations of appellee’s petition, we think that they are to be interpreted as the court below, in effect, interpreted them in his charge. That is to say, as substantially meaning that the walls of the pressroom were too weak to sustain their superstructures as placed, either because of the specified faults in their original construction, or because of the subsequent washing out of the mortar therein, and that appellant was guilty of negligence in these respects as specified. If, as the court in effect charged, the walls were too weak by reason of any one or more of such causes, and appellant was guilty of negligence in any one or more of the specified ways alleged in so maintaining the walls, then it was liable, and the case is not altered by the fact, if conceded, that the petition charges the independent causes conjunctively, where, as we think here, each independent cause of weakness of the wall may be of itself a sufficient cause of the wreck. It is only necessary to submit to the jury each of an entire series of acts made the foundation of an action when proof of each and all of the acts t is necessary to constitute a case of neglij gence.

This, say the court in G., H. & S. A. Ry. Co. v. Callahan, 124 S. W. 129, “is not an exception to the general rule, * * * but is in accord with it. For when it takes a combination of a •number of facts to make out a case of negli-. gence, and they are averred, the petition does not allege several grounds of negligence, but only one.”

In the case of Tex. & Pac. Ry. Co. v. Kirk, 62 Tex. 227, it appears that a train upon which Kirk was a passenger was derailed and he was injured. He alleged:

“That the accident was caused by a broken rail in defendant’s roadbed, a piece of which, three feet long, was missing; that the roadbed was greatly out of repair, and had been out of repair for a long time previous to the 6th of November. That defendant, by the exercise of ordinary care and diligence could have known of 'the. bad condition of its road, and could have prevented the accident.”

It was contended that proof of both of the alleged defects in the track was necessary. In disposing of the contention, the court said:

“The substance of the issues in this case was: Was the track of the appellant’s road unsound and unsafe by reason of a defective rail, and was that the cause of the injury? It was alleged that the track was defective in two respects: (1) That the rail was and had been for some time broken. (2) That a part of the broken rail was missing. Proof of either of these facts would have been sufficient to establish the defective character of the track, and to sustain so much of the issue; and if the other evidence in the case showed that such defect caused the injury, then the matter in issue was sufficiently proved, in so far as it was necessary to show the cause of the injury, and so far as the issue under consideration was concerned.
“In the case of Pittsburg, Ft. Wayne & Chicago Ry. Co. v. Ruby, 38 Ind. 305 [10 Am. Rep. 111], it was alleged that the conductor and brakeman on a freight train carelessly and negligently failed to properly adjust a switch and signaled a passenger train to advance. The jury found that neither the conductor nor brakeman signaled the train to advance, but that the employés of the company did so, and it was claimed that there was a variance between the pleading and proof, or verdict. The court held that there was no variance between the pleadings and the special verdict.”

Appellee cites other cases of like import, but those given, we think, support our conclusion to the effect that the plaintiff’s petition supports the court’s charge as against the objection mentioned.

A yet more insistent objection is made to the second paragraph of the court’s charge. On the trial it was excepted to in that:

“It submits issues and permits recovery upon grounds of negligence, and for causes of the falling of the building, that are not pleaded, and the ground of recovery submitted in said paragraph has no basis therefor in the pleadings.”

Appellant’s proposition is that in view of the allegations of the petition already quoted it was—

“prejudicial error for the trial court to instruct the jury in broad and general terms, as it did in the second paragraph of the court’s main charge, that appellee was entitled to recover in this cause if appellant failed to furnish him a safe place in which to work, and failed to use ordinary care to inspect the building and to discover and remedy any defects therein which would render appellee’s employment dangerous.”

It is urged that the evidence “was sufficient to authorize the jury to find negligence in several respects not pleaded.” But as we view the evidence after careful consideration, there was no specific defect in the walls of the pressroom, or in the supports of the tank, nor of acts or omissions tending to show negligence that do not come fairly within the allegations made. It is evident that the walls of the pressroom were too weak to sustain the supports upon which the tank rested, and. while in some respects conflicting, the evidence is abundantly sufficient to support the conclusion that the walls of the pressroom were built in two separate sections not tied together; that the inner section was composed of small stones of irregular shape and was but four inches wide; that the mortar in the inside section had in a number of places been washed out by frequent overflows of the tank above; that the supports of the tank rested on the inside section alone; and that each and all of these conditions were either known, or ascertainable by the exercise of ordinary care in inspection. There is no evidence of rotten or defective timbers, or of any wind or storm, or unusual weight or strain placed upon the walls to cause their collapse. In short, unless attributable to one or more of the causes alleged, there was no sufficient cause for the fall of the tank that can be assigned. One of the witnesses thus expressed it: “It (the building) just fell without any apparent cause.” Another testified that there was no wind to amount to anything, that it "just fell dry so.” In this condition of the evidence it is unreasonable to suppose that the jury entered the field of the conjectural and founded their verdict upon an unknown cause, when the evidence afforded a reasonable and just basis for a finding upon one or more of the only issues of a proximate cause for the fall of the walls of the building upon which the court’s charge affirmatively authorized a finding in appellee’s favor.

But it is further contended, in effect, that, even if the evidence fails to show any specific defect or fault not embraced in the plaintiff’s allegations, that the charge at least authorized the jury to find for the plaintiff under the doctrine of res ipsa loquitur. The doctrine mentioned is that:

“Where the particular thing causing the injury has been shown to be under the management of the defendant or his servants, and the accident is such as, in the ordinary course of things, does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation, that the accident arose from want of care.” Washington v. Mo., etc., Ry. Co., 90 Tex. 314, 38 S. W. 764; McCray v. Galveston, etc., R. Co., 89 Tex. 168, 34 S. W. 95.

And this doctrine has been held not to apply where specific acts of negligence are alleged. M., K. & T. Ry. Co. v. Thomas, 132 S. W. 974; Lone Star Brewing Co. v. Willie, 52 Tex. Civ. App. 550, 114 S. W. 186. The contention, therefore, is that the jury under the second paragraph of the court’s charge may have applied the rule of res ipsa lo-quitur and found for the plaintiff, even though they may have failed to find for him on the specific acts of negligence submitted in the first paragraph. But that this is improbable we think we have already shown. Moreover, we are unwilling to adopt the contention as broadly as stated. The general rule that a plaintiff in proving his case is confined to the' specific facts alleged is as old as the law of pleading. The reason for it is that a defendant may be seasonably notified of just what he will be called upon to meet. But it is equally well settled that when the facts are not known to the plaintiff and are peculiarly within the knowledge of the defendant, greater generality of statement is permissible. M. P. Ry. Co. v. Hennessey, 75 Tex. 155, 12 S. W. 608; G., C. & S. F. Ry. Co. v. Smith, 74 Tex. 276, 11 S. W. 1104.

In the ease before us the plaintiff distinctly alleged that the building under consideration and its walls were under the exclusive control of the defendant and that the plaintiff “did not fully know the condition and defects therein.” Had the allegations stopped at this point the entire contention we are now considering would be useless. Indeed,the contrary is not asserted, for in such case, under the authorities last cited, the plaintiff under his general allegations of negligence could have proved and recovered upon any defect and act of negligence that existed, and in such case, too, proof of the unusual happening coupled with the circumstances of the wreck would, in the absence of explanation, afford a presumption of negligence; and the majority, at least, do not feel prepared to hold that the specific allegations in this case, qualified as they are, alter the case. At all events, plaintiff’s pleadings were broad enough to authorize an inquiry into the occurrence that resulted in Ms injuries, and, notwithstanding the modified specific allegations, evidence of its attending circumstances and causes was admissible, if not as tending to establish an independent act of negligence not alleged, at least in aid of the defects and acts of negligence that were alleged. See S. A. & A. P. Ry. Co. v. De Ham, 93 Tex. 74, 53 S. W. 375. As the jury were thus authorized to refer the facts relating to the control of the building and the circumstances relating to its fall to one or more of the defects and acts of negligence submitted in the first paragraph of the charge, so we think should the second paragraph of the charge be made referable. The second paragraph is in its substance but an abstract statement of appellant’s legal duty in the premises. It was not applied to the evidence in the sense that a verdict for the plaintiff was thereby authorized. Such a verdict was only authorized by paragraph 1. It is not pretended that the second paragraph is incorrect as a proposition of law, or that it was improper to give it in so far as it applied to the facts alleged, shown in evidence, and submitted in paragraph 1. As applied to these facts and thus referred, we think the charge was both correct and proper, and that it is improbable that either court or jury referred the charge to any other state of facts.

A number of other objections to the charge are urged on the ground that the evidence did not warrant a submission of the several issues and combination of facts set out in paragraph 1 of the charge, but with these contentions we cannot concur. Nor have we found error in the action of the court in refusing the special charges requested. Some of them are in opposition to the court’s charge, others are upon the weight of the evidence, and all of them, so far as proper, were sufficiently covered by the court’s charge. We, accordingly, conclude that all assignments of error complaining of the court’s charge, and because of the refusal of special charges, should be overruled.

In the seventh and eighth assignments of error complaint is made of certain remarks of counsel for appellee in his address to the jury, and these assignments will be considered together. The statements made the basis of the seventh assignment are as follows:

“The facts make the case. The workman did not do it. He would have given everything he had to have prevented it, no doubt. Mr. Erasier did not do it. No man connected with it, except the men who built the oilmill — these are the men responsible. This verdict here rendered should be for the purpose of deterring other men and making them do right.”

The bill of exception shows that:

“To this argument when made, the attorney for the defendant objected, because such argument was out of the record and was improper and was prejudicial.”

In answer to which the court said: “I did not catch the statement.” Without it appearing that the statement was repeated to the court, counsel for appellee proceeded to relate an anecdote or story of “a nigger in a henhouse,” and “to this counsel for defendant again excepted,” whereupon the opposing counsel stated, “Have you heard that before? I will tell you one you have not heard. I withdraw that.” It is insisted before us that' the words, “I withdraw that,” relate to the argument first quoted and not to the short story, but whether so or not the matter seems to have been taken lightly. The bill shows that there was “laughter,” and the court explains that counsel for plaintiff correctly explained to the jury the true measure, items, and elements of damage, and that “at the time, in the connection in which it was used, the statement did not impress me as being in any way prejudicial to the defendant.” The trial court was in a better position to on-serve the probable effect oí the remarks Complained oí on the jury than this court, and we do not feel inclined to disturb bis judicial discretion as exercised. Especially so in view of the fact that part of the statement was plainly within the scope of the evidence, and the objections go to the whole, and no special instruction was requested instructing the jury to disregard the statement or any part thereof.

The argument complained of in the eighth assignment may be more serious. At least it was so treated by the able counsel for appellant in his oral argument on the submission of this ease. The complaint is presented in appellant's bill of exception, which, omitting unnecessary parts, reads as follows:

“Be it remembered, that upon the trial of the above-entitled and numbered cause, Mr. T. J. McMurray, of counsel for plaintiff, in the concluding argument to the jury, stated that plaintiff was entitled to have damages assessed him by the jury because of the fact that through the loss' of his sexual powers he would be denied the privilege of having children; that he would necessarily suffer disappointment and would suffer mental anguish as a result of his inability to have children, to all of which argument defendant, tkz'ougk its counsel, objected upon the ground that same was improper argument, prejudicial to the rights of the defendant, and likely calculated to unduly arouse the sympathies of the jury in behalf of plaintiff, and is too remote and speculative to serve as an element of damages. All of which objections were by the court overruled, and the motion of defendant made in open court to have the jury instructed not to consider such argument was by the court denied.”

Appellant’s proposition is, as indicated in the bill of exception, that “mental anguish” suffered as a result of appellee’s inability to have children “is too remote and speculative as an element of damage,” and the following authorities are cited in support of the proposition: Claunch v. Osborn, 23 S. W. 937; T. & P. Ry. Co. v. Randle, 18 Tex. Civ. App. 348, 44 S. W. 603; Planters’ Oil Co. v. Mansell, 43 S. W. 913; G., C. & S. F. Ry. Co. v. Dickens, 54 Tex. Civ. App. 637, 118 S. W. 612; Butler v. Manhattan Ry. Co., 143 N. Y. 417, 38 N. E. 454, 26 L. R. A. 46, 42 Am. St. Rep. 738; Tunnicliffe v. Bay Cities Consolidated Ry. Co., 102 Mich. 624, 61 N. W. 11, 32 L. R. A. 142; Maynard v. O. R. & N. Co., 46 Or. 15, 78 Pac. 983, 68 L. R. A. 477; Tel. Co. v. Cooper, 71 Tex. 511, 9 S. W. 598, 1 L. R. A. 728, 10 Am. St. Rep. 772; Tel. Co. v. Solomon, 54 Tex. Civ. App. 306, 117 S. W. 214. The cases may not be entirely harmonious, but the use of improper language in the course of an argument by opposing counsel, of itself, will not authorize the reversal of a judgment. Say our Supreme Court:

“It is only in cases in which the preponderance of the evidence seems to be against the verdict, or in cases in which the verdict seems excessive and there is reason to believe that the verdict may have been affected by such course of conduct, that it becomes a ground for reversal.” See I. & G. N. Ry. Co. v. Irvine, 64 Tex. 529.

This declaration was made as long as 39 years ago and bus never since been materially impaired as a rule, so far as we have in mind. On the contrary, it may be said to have been emphasized by rule 62a (149 S. W. x), promulgated by express legislative authority within a comparatively recent period. That rule, so far as necessary to quote, reads:

“No judgment shall be reversed on appeal and a new trial ordered in any cause on the ground that the trial court has committed an error of law in the course of the trial, unless the appellate court shall be of opinion that the error complained of amounted to such a denial of the rights of the appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case.”

If, therefore, it should be conceded that the argument under consideration was improper, we would not be inclined to reverse the judgment on that account. The argument at most could only tend to swell the amount of appellee’s damages, or to cause the jury to find for appellee on the issues of liability when otherwise they would not have done so. But in neither of these respects, nor otherwise, does the record indicate a probability that the jury were influenced by passion or prejudice. On the contrary, as will be later seen, the verdict is not excessive and the evidence as a whole preponderates strongly in appellee’s favor on the issues of appellant’s liability.

But was the argument improper? We decline to so hold. Appellee testified that since his injury he had not been able to perform the sexual act, and Dr. Johnson testi* fied that he would likely never again have the power to do so. The essence of the argument was that appellee “would necessarily suffer disappointment and mental anguish as a result of his inability to have children,” and it is to this alone that appellant by its proposition limits the inquiry, thus excluding a consideration of the grosser features involved, and the more remote loss of pleasure or profit to be derived from children to be brought as a living presence into the family. As thus limited, we think the argument was well within the field of the counsel’s privilege. The power and impulses necessary to the birth of a child is an especial endowment of man by the infinitely wise Creator of all things. They are essential to the- perpetuation of the race, and in so far as man is deprived of these impulses and power he is deprived of the ability to fulfill one of the chief ends of his existence. Wliat proof is necessary to establish disappointment and distress arising from a loss of manhood? We instinctively know. At least such mental sensations are certainly natural results of a wrongful deprivation of sexual power that will be held to have been within the contemplation of the wrongdoer. A man has a divinely given right to entertain the high ideal of doing his part in perpetuating his name and kind, and if wrongfully deprived of the power to do this, we see no legal obstacle to an inquiry of whether mental pain was a proximate result, and if so, to an award of a reasonable compensation. We will not extend this opinion by a discussion of the many cases holding that mental suffering when proximately caused by a wrongful act is a proper element of damages, but it is well settled in this state that such is the law. Thus, it has long been held that compensation is recoverable for mental distress naturally arising from wrongful assaults, from slander and libel, from indignity or insults in cases of wrongful ejection from passenger trains, in eases of seduction, and in cases where a person has been denied attendance upon the sickness or death of a relative by the negligent failure to deliver a telegram. See, generally, 1 Sutherland on Damages, § 75. No distinction is made in these cases because of the uncertain, intangible, or variable character of the mental suffering. It is to be ascertained from all the circumstances as best the court or jury may, like any other element. The test is, Was it a natural result of the wrongful act involved and was it to have been reasonably anticipated by the wrongdoer? If so, compensation is recoverable by the injured party, and in such case the damages are not remote in a legal sense. The mental pain that a jury may find to result from the consciousness suddenly brought home to an injured man that he is forever to be denied the high privilege of becoming a father, is equally as certain, as tangible, and as easily ascertainable as was so in the telegraph and other cases mentioned. In each case the mental distress springs alike directly out of and results from the wrongful injury, and not from uncertain and speculative conditions not necessarily connected therewith, as illustrated in cases cited in behalf of appellant. Whatever inferences are to be drawn from those cases, the conclusions above indicated are, we think, in accord with numerous others, including one by this court. In the case of Ft. Worth Belt Ry. Co. v. Turney, 157 S. W. 274, it appeared that Turney was injured through the negligence of the railway company. Upon the trial he was permitted to testify, in substance, over appellant’s objection, that as a 'result of his injuries all he “could figure out” was “that he was knocked out and could see no show of working in the future,” and that as a result he suffered mentally. Error was assigned to the admission of this testimony; appellant’s proposition being that:

“Mental suffering, due to one’s belief that he will not be able to labor and earn money, is not an element of damages in a personal injury suit.” ■

In disposing of the question this court said:

“Appellant cites no authority in support of the proposition quoted and we cannot sustain it as broadly as it is stated. The rules of law are intended to afford compensation for all natural consequences flowing; from personal injuries occasioned through the fault of another, and mental anxiety naturally resulting is recoverable. See Sutherland on Damages (2d Ed.) § 1241; M., K. & T. Ry. Co. of Tex. v. Warren, 39 S. W. 652. It seems to us that the physical pain resulting from the injury, which is clearly an element of damage, was not more natural than the distress and anxiety of mind occasioned by the consciousness that the injury received was such as to wholly incapacitate the head of the family from pursuing his usual occupation, thus to provide for those dependent upon him.”

No writ of error was applied for in that case, but one was applied for and refused by our Supreme Court in the case of Citizens Ry. Co. v. Branham, 137 S. W. 403, by the Austin Court of Appeals. That, too, was a case of personal injury arising from the negligence of the railway company, and it was distinctly held that:

“There was no error in permitting appellee to testify that he had suffered mental distress by reason of being incapacitated to earn a liveli- * hood.” ^

See, also, the following cases cited in behalf of appellee: Prescott v. Robinson, 74 N. H. 460, 69 Atl. 522, 17 L. R. A. (N. S.) 594, 124 Am. St. Rep. 987; Morin v. Ottawa Electric Ry. Co., 15 Ann. Cas. 51, and cases cited; M., K. & T. Ry. Co. v. Warren, 39 S. W. 653; G., H. & S. A. Ry. Co. v. Clark, 21 Tex. Civ. App. 167, 51 S. W. 276; McDermott v. Severe, 202 U. S. 600, 26 Sup. Ct. 709, 50 L. Ed. 1162; Ferguson, etc., Co. v. Good, 112 Ark. 260, 165 S. W. 628; Shortridge v. Scarritt Estate Co., 145 Mo. App. 295, 130 S. W. 126; Merrill v. Los Angeles G. & E. Co., 158 Cal. 499, 111 Pac. 534, 31 L. R. A. (N. S.) 559, 139 Am. St. Rep. 134; Heddles v. Chicago, etc., Ry. Co., 77 Wis. 228, 46 N. W. 115, 20 Am. St. Rep. 106; S. W. Brewery & Ice Co. v. Schmidt, 226 U. S. 162, 33 Sup. Ct. 68, 57 L. Ed. 170; Newbury v. Getchel, etc., Co., 100 Iowa, 441, 69 N. W. 743, 62 Am. St. Rep. 582; Gray v. Washington W. & P. Co., 30 Wash. 665, 71 Pac. 206; Express Co. v. Wahl, 168 Fed. 848, 94 C. C. A. 260; vol. 4, Sutherland on Damages, p. 3594, § 1241; Tweed v. W. U. Tel. Co., 166 S. W. 965; Muth v. St. Louis Trust Co., 94 Mo. App. 94, 67 S. W. 978. We conclude that appellant’s seventh and eighth assignments of error should be overruled.

The mere fact that the witness Davis did not see the walls of the pressroom until after the accident did not require the exclusion of his testimony to the effect that he noticed several places where the mortar had either been washed out or had fallen out Snell condition in the walls and parts of the walls left standing a few hours after the wreck offered a fair inference that the same condition of the walls and mortar obtained in those parts of the walls that were wholly crushed, and this inference tended to support the plaintiff’s allegations of insecure walls and supports for the tank.

We also think the witness was properly permitted to state that the condition and defect in the walls observed by him could have been discovered by an inspection of the same from the inside. It was shown that the witness was an experienced builder of stone and brick buildings, that he was one of the persons engaged in taking down the walls that had been left standing, had testified to the character of stones and condition of the mortar, and his opinion that the defects observed wore such as were ascertainable by; an inspection was competent. It does not, we think, invade the province of the jury as is urged. M., K. & T. Ry. Co. v. Steele, 50 Tex. Civ. App. 634, 110 S. W. 171; El Paso Elec. Ry. Co. v. Boer, 108 S. W. 200; St. L. S. W. Ry. Co. v. Brown, 163 S. W. 383; F. W. & D. C. Ry. Co. v. Ayers, 149 S. W. 1068; 2 Jones on Evidence, § 360 et seq. The same conclusion, we think, should be adopted in answer to the further objection to the testimony of this witness that the walls as he found them were in his opinion insufficient to safely support a 6,000 gallon tank of water. In qualifying he testified that he had had about seven years’ experience in building brick and stone buildings, and in selecting mortar and stone for the same, and that he had assisted in the construction of four or five towers such as inquired about. It was shown that the tank rested upon a platform about four feet above the tin roof over the pressroom, that the platform rested on trestle work of heavy timbers, which the evidence tends to show was supported by the inner section of the stone walls. There was evidence tending to show that the tank was constructed of steel and contained about 5,500 gallons of water. We may take judicial notice of the fact that a gallon of water weighs 8% pounds, and as already indicated we think his opinion as to the strength of the walls was competent. Indeed, the identical question, in substance, was so determined in the ease of Cont. Ins. Co. v. Pruitt, 65 Tex. 126. See, also, Turner v. Harr, by the Supreme Court of Missouri, 114 Mo. 335, 21 S. W. 737. The further objection that the hypothetical question, in answer to which the opinion of the witness was given, assumed the capacity of the tank to be 6,000 gallons instead of “about 5,500,” as shown by the evidence, goes rather to the weight of the answer than to its competency, particularly in view of the fact that if appellant desired to reap any benefit by reason of the discrepancy it could have been developed by further examination of the witness in the nature of a cross-examination. G., C. & S. F. Ry. Co. v. Compton, 75 Tex. 667, 13 S. W. 667. All that is required in such cases is that the evidence is substantially embodied in the hypothetical question. Kemendo v. Fruit Des. Co., 131 S. W. 73; Trinity & B. V. Ry. Co. v. McCune, 154 S. W. 237.

The remaining assignments not disposed of by what we have already said attack the sufficiency of the evidence to sustain the verdict on the issue of appellant’s liability, and the amount of the judgment on the issue of damáges, but we are of the opinion that we should also overrule these assignments. What we have already said we think abundantly supports the jury’s verdict on the issue of liability, and after a consideration of the evidence, and of the character and extent of appellee’s injuries, we do not see our way clear to declare that the verdict is excessive. The evidence tends to show that at the time of appellee’s injury he was a strong, healthy man of 21 years of age, earning about $1.75 per day; that he had just married a young woman 19 years old; that he weighed about 145 pounds and was used to work; that the injuries rendered him unconscious, and that when he became conscious he was in Dr. Johnson’s sanitarium at Ft. Worth; that after he became conscious he suffered a great deal; that the worst suffering was from his bladder, on account of not being able to pass his water; that his back was injured, causing pain and requiring an operation ; that he suffered from this operation; that there were splinters in his forehead that had to be cut out, causing pain and leaving a scar; that since the injury and operation he cannot pass his water without straining; that his kidneys get sore, causing pain across the small of his back; that he has no control whatever over his bowels; that he has to take medicine to get them to move; and that they will not move without medicine; that when his bowels do move he is so paralyzed in- those regions that he does not know when it is going to happen; that he has practically no feeling in his legs, and they are of no use to him, and are perishing away so far as size and strength are concerned; that he cannot stand on them or walk on them; that his body is not as large anywhere as it was; that his sexual organs had been so affected that he could not perform sexual functions by reason of the general paralysis of his body extending from his bowels downward; that he has no power of locomotion except to be carried or rolled in an invalid’s chair; that prior to the injury he had been doing hard labor and thereby making a living for his family; that he is not able to do anything since the injury, but that it takes a great deal of the time of his wife and mother to take care of him; that his bladder is so far from under his control that it causes a dripping in his clothes at times.

Dr. Olay Johnson’s evidence, which is also uncontradicted, shows: That when plaintiff came to his sanitarium there was a cut over one of his eyes, extending down into the bone with considerable foreign matter in there. That one of his legs down close to his ankle was broken; that he found that he could not move his legs. That the injury on his head produced a concussion of the brain. That an X-ray examination of his back disclosed the fact that there was an injury to the spinal column, showing that sensation was practically destroyed in his legs. That he performed an operation on the back, cutting down into the backbone and chiseling and gouging out a part of the backbone in order to relieve the pressure on the spinal column. That this was a very severe and dangerous operation. That the injury to the back produced the want of sensation in the lower limbs, and that this was only slightly improved by the operation, giving just a little more sensation and motion in the lower limbs. That he was unable to pass urine as a result of the injury to his spinal column paralyzing his bladder and bowels. He further testified:

“Until the time he left the hospital he never had any true, perfect action of his bowels; his bowels would move in his bed, or in his clothing or gowns. Supposing that that condition has continued until the present time, I think it will likely be permanent. When I first saw him he looked to be well nourished, well developed, and if he had not been injured, an ordinarily stout young fellow, absolutely healthy in every respect. He likely will never have sexual power. I don’t think there is any treatment that could be prescribed that would improve his condition. I don’t think there is any treatment by electrical massages, or anything of that sort that would improve his condition.”

Plaintiff was shown to have incurred and paid expenses of more than $1,000, including a surgeon’s bill of $500, and sanitarium fees of $25 per week for 10 weeks, all of which was shown by the testimony of Dr. Johnson to be reasonable; also other doctor’s bills and expenses. See St. L. & S. W. Ry. Co. v. Waits, 164 S. W. 870; W. P. Oil Co. v. Snell, 47 Tex. Civ. App. 413, 106 S. W. 170; G., C. & S. F. Ry. Co. v. Shelton, 30 Tex. Civ. App. 72, 69 S. W. 653; S. W. Tel. Co. v. Shirley, 155 S. W. 664; T. & N. O. Ry. Co. v. Kelly, 34 Tex. Civ. App. 21, 80 S. W. 1073; T. F. Lumber Co. v. Thomas, 147 S. W. 296; G., H. & S. A. Ry. Co. v. Hanson, 125 S. W. 64; T. & B. V. Ry. Co. v. Geary, 169 S. W. 202.

It is ordered that all assignments of error he overruled and the judgment affirmed.
      &wkey;jFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes ■

      <5&wkey;For other cases see same 'topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: CONNER, C. J.

license: Public Domain

text:
    GULF, C. & S. F. RY. CO. v. SULLIVAN.
    (No. 8191.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    May 8, 1915.)
    1. Evidence <@=>116 — Admissibility — Explanatory Matters — “Relevant Testimony” — -“Competent Evidence.”
    Where a witness for the defense on á second trial testified to a material fact contrary to the plaintiff, and to weaken such testimony plaintiff in rebuttal introduced the witness’ answer to a cross-interrogatory, showing that at a former trial he had been present, but was not used as a witness, and the defendant offered to prove that on the former trial the court had indicated its purpose to submit the case only upon an issue that rendered the witness’ testimony immaterial, such tendered proof should have been received as tending to rebut the inference that the witness’ testimony on the second trial was untrue, given with a view of supplying necessary evidence, since to be “relevant” testimony need not necessarily have direct relation to the principal issue, but is “competent” if it tends to explain or increase the probability or improbability of relevant facts to support his testimony, and any circumstance tending to explain unfavorable testimony elicited on cross-examination is always competent, and not within the discretion of the court to exclude.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 134, 135; Dec. Dig. <@=>116.
    For other definitions, see Words and Phrases, First and Second Series, Competent Evidence; Relevant.]
    2. Evidence <@=>116 — Explanatory Matters.
    Where the failure of a witness to testify on a former trial arose by reason of facts not within his knowledge, evidence explanatory of his failure to testify on the former trial, thereby rebutting the inference that his testimony on the second trial was untrue, could be supplied by competent evidence other than his own testimony.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 134, 135; Dec. Dig. <@=>116.]
    3. Trial <@=>119 — Conduct op Counsel — Argument — Propriety.
    In an action against a railroad for personal injuries, where the evidence was undisputed that the plaintiff was wholly dependent upon his parents, and always had been and always would be afflicted in body and mind, and without earning capacity, and where there was no prayer in plaintiff’s petition for damages except for physical and mental anguish, and the court in the charge submitted no other element of damages, the argument of plaintiff’s counsel in closing that the jury in awarding damages “should give plaintiff such a sum as will provide for him and furnish enough interest to take care of him” was -improper as a direct appeal to award compensation for an element of damages unwarranted by pleading, proof, or charge.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 284; Dec. Dig. <@=>119.] *
    4. Trial <@=>122 — Conduct op Counsel — Argument — Propriety — Failure to Call Witness.
    In an action against a railroad for personal injuries, where a constable of the precinct in which the accident occurred as an officer of the county had served subpffinas for defendant, the argument of plaintiff’s counsel that such officer was “in the power” of defendant, or had been an “employé” helping to get up evidence, and that the failure of the defendant to call such constable as a witness amounted to a confession that the plaintiff’s testimony as to the circumstances of the accident was true, such constable having been shown by evidence to have been near by at the time, was objectionable.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 299; Dec. Dig. <@=>122.]
    5. Trial <@=>120 — Argument op Counsel — Propriety.
    In an action against a railroad for personal injuries, where the plaintiff testified that the defendant had not rung the bell or blown the whistle, and .there was no evidence that there had been such failure on other occasions to give warning of the approach of trains, the argument of plaintiff’s counsel that defendant had neglected to give such signals “before,” and that he expected the defendant had run its trains a dozen times before the accident without blowing the whistle or ringing the bell, was improper.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 285-287; Dec. Dig. <@=>120.]
    6. Appeal and Error <@=>660 — Certiorari to Perfect Record — Time op Filing — Rules op Court.
    Where the amended original petition of the plaintiff was not verified, as required by Rev. St. 1911, art. 1829a, as added by Acts 33d Leg. c. 127, S 5 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1829a), on defendant’s appeal, assigning error to the overruling of its special exception to such amended petition, plaintiff’s motion for certiorari to perfect the record so as to show verification, not presented in the Court of Appeals until the day of submission of the cause, came too late, under,rules for the Courts of Civil Appeals No. 11 (142 S. W. xi, xii), providing that motions for certiorari to perfect the record shall be made in the time required in rule 8, which provides that all motions relating to informalities in the manner of bringing a case into court shall be filed within 30 days after the filing of the transcript in the Court of Civil Appeals, otherwise the objection shall be considered as waived.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 2829, 2844-2847; Dec. Dig. <@=660.]
    Appeal from District Court, Denton County; C. P. Spencer, Judge.
    Action by Lloyd Sullivan, by next friend, against the Gulf, Colorado & Santa ES Railway Company. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    See, also, 168 S. W. 473.
    Lee & Lomax, of Ft. Worth, Robert H. Hopkins, of Denton, and Terry, Cavin & Mills, of Galveston, for appellant. Owsley & Owsley, of Denton, and J. W. Koons, of Sanger, for appellee.
   CONNER, C. J.

Appellee recovered a verdict and judgment for $6,500 as damages for personal injuries, and the defendant has appealed.

Briefly stated, it was alleged, and appellee’s evidence is in substantial correspondence with the allegations, that on May 19, 1913, appel-lee visited the depot in the town of Sanger in Denton county. The main line of the appellant’s railway extends through the town of Sanger, north and south. The depot is situated on the west side of the main line. West of the depot a switch track, or, as it is termed in the evidence, a house track, also extends in a north and south direction. One of the streets of the town just north of the depot extends east and west at right angles with these two railway tracks. Appellee alleged that he was directed by the agent at the depot to leave, and that he did so with the purpose of going to his home, which was in a northwesterly direction from the depot; that he went out of the depot upon its eastern side and traveled north until he reached the street mentioned, when he found that it was obstructed by a train of cars to the west on the house track that was being switched at the time; that he thereupon continued in a northerly direction until he reached a coal bin situated on the east side of the' house track and within a few feet of it; that on the opposite side of the track and a little to the north of the coal bin there was located some stock pens, in front of which was standing a stock car that it seems had been placed there for the reception of some horses about to be shipped; that he stopped at the northwest corner of the coal bin a few moments and then concluded to continue his journey, but before doing so he looked to the south and saw that the switch engine and ears attached thereto were south of the depot; that he then continued and undertook to cross the house track just north of the stock ear standing in front of the stock pens; that the point at which he so undertook to cross the house track was traversed by a well-worn pathway that had been long used by residents of the town, situated in a northwesterly direction from the stock pens, and in the vicinity of his home in coming to and from the depot, and to and from a water tank also situated near the coal bin; that while he was so endeavoring to cross the track, and while on the track the switch traifi from the south propelled the cars attached to the engine northward and against the standing stock car, which thus was projected against and over him, inflicting the serious injuries described in his petition. It was alleged, and there was evdence tending to show, that there was no brakeman or other person stationed upon the switch train, or upon the standing stock car, to give warning to persons about to cross the track. It was further alleged that neither whistle nor bell was sounded by the switch train to give warning of its approach to persons about to cross the house track, and it was charged that the defendant railway company was guilty of negligence in these respects.

The pleadings of plaintiff were met by exceptions, by a general denial, and, among other things, by a special plea of contributory negligence on the part of the plaintiff in attempting to cross the track at the time and under the circumstances he did. The trial, however, resulted in a verdict in appellee’s favor, as before stated.

Among other things, it appeared in the evidence that one of appellant’s brakemen was in close proximity to the scene of the accident, and on a former appeal in this case a judgment in appellee’s favor was reversed on the ground that the evidence did not warrant a recovery in his favor upon the issue of discovered peril, upon which issue alone the case was then submitted. See 168 S. W. 473. On the last trial the issue of discovered peril was not submitted; the submission being upon the issues of negligence and contributory negligence hereinbefore indicated.

Appellant in various forms attacks the sufficiency of the evidence to authorize a submission of the issues, or to sustain the verdict in appellee’s favor, but in view of the fact that we have concluded that the judgment must be again reversed, we deem it improper to discuss the sufficiency of the evidence further than to say that we do not think it was such, on either the issues of defendant’s liability or of plaintiff’s contributory negligence, as to have required the peremptory instruction to find in appellant’s favor, as was requested.

It will be remembered that the plaintiff alleged as a reason for not haying gone from the depot along and over the public street extending east and west immediately north of the depot into the town of Sanger and in the direction of plaintiff’s home that it was obstructed by a train of ears that was being switched at the time. This allegation, was specially denied by the defendant, and on the trial, the plaintiff having testified in accordance with his allegations, the defendant introduced its witness Gambill, who testified to the effect that at the time the plaintiff, Lloyd Sullivan, came out of the defendant’s depot, the crossing north of such depot was not blocked or obstructed by any cars, and that the plaintiff, had he desired to do so, could have gone home by crossing defendant’s house track at such place. Thereafter the plaintiff in rebuttal introduced the. answer of the witness to cross-interrogatory No. 1, to the effect that at a prior term of court when the case was tried he was present, but was not used as a witness. The defendant, as shown by the bill of exception, thereupon offered to prove, and could have proved, that on the former trial the court had indicated his purpose to submit the case upon the issue of discovered peril alone, and hence that the witness Gambill was not tendered at that trial, for the reason that in the judgment of defendant’s counsel his testimony was not material on the only issue which the court proposed to submit to the jury. Such tendered proof on the part of defendant was objected to by the plaintiff on the ground that it was “wholly irrelevant and immaterial,” which objection was by the court sustained and the proof excluded, to which action of the court error has been duly assigned. We think the court erred in so ruling. It is evident that the plaintiff thought it to be material to account for his failure to take the public street in crossing the tracks, rather than the less frequented and perhaps more dangerous route that he did, for he specially pleaded and specially testified that the public street was obstructed, and that by reason of such obstruction he took the course that he did. And it seems likewise evident that the plaintiff regarded it as material to cast suspicion upon the testimony of Gambill, denying that the street was closed, by showing that he had not testified on the'.former trial, thus creating an inference that the witness did not so testify on the former trial, or was not offered as a witness on the former trial because he did not know, or had not divulged the fact, that the street was open. It is by no means beyond the range of probability that the jury may have inferred that the witness Gambill on the last trial testified contrary to the truth, and that his testimony was given with the view of supplying necessary evidence. His failure to so testify or to have been offered as a witness on the former trial, unexplained, was, in its nature, well calculated to affect the weight of Gambill’s testimony and to create a suspicion as to his credibility as a witness, and we therefore think that the excluded explanation was not only relevant, but material. To be relevant, testimony need not necessarily have direct relation to one of the principal issues in the case. If it tends to explain or to increase the probability or improbability of a relevant fact, it is competent. One of the familiar purposes of á cross-examination, which is a right jealously guarded by the courts, is to weaken the testimony of, or to discredit, a witness who has given testimony favorable to the opposing party, and after a cross-examination has developed circumstances or statements tending to support the purposes mentioned, the right of the opposing party, who has offered the witness, to his re-examination, so as to support the witness and his testimony, is as firmly fixed in the law as the right of cross-examination. Any circumstance or fact tending to explain the unfavorable testimony elicited on cross-examination and to strengthen or support the testimony of the witness which has been thus attacked is always considered competent, and this right of re-examination within its proper scope is not merely discretionary with the court. See Hicks v. Hicks, 26 S. W. 229; Hoxie v. Silliman, 29 S. W. 913; Jackson v. M., K. & T. Ry. Co. of Tex., 23 Tex. Civ. App. 319, 55 S. W. 376; M., K. & T. Ry. Co. of Tex. v. Sharp, 120 S. W. 266; Martin v. Richmond, etc., Ry. Co., 101 Va. 406, 44 S. E. 695; Villineuve v. Manchester Ry. Co., 73 N. H. 250, 60 Atl. 748; Gray v. Met. St. Ry. Co., 165 N. Y. 457, 59 N. E. 263; Dole v. Wooldredge, 142 Mass. 161, 7 N. E. 832; 5 Jones, Blue Book of Evidence, §§ 871, 8 72 ; 2 Wigmore on Evidence, § 952. While ordinarily the right of a re-examination is confined to the witness cross-examined, yet where, as here, the failure of .the witness to testify arose by reason of facts not within his cognizance, we think the explanatory evidence may be supplied by other competent evidence. Appellant’s eleventh assignment is, accordingly, sustained.

We are of opinion, also, that the argument complained of in the fourteenth assignment of error was erroneous and prejudicial. The bill of exception shows that the plaintiff’s counsel in his closing address to the jury stated that in awarding damages the jury “should give plaintiff such a sum as would provide for him and furnish enough interest to take care of him.” The evidence in the case seems undisputed to the effect that the plaintiff was wholly dependent upon his parents, and ever had been and ever would be afflicted in body and mind, and without any earning capacity. There was no prayer in the plaintiff’s petition for damages on account of anything except physical pain and mental anguish, and the court in his charge submitted no other element of damages. The argument objected to was therefore a direct appeal to the jury to award the plaintiff compensation for an element of damages unwarranted by either pleading, proof, or charge, and hence in contravention of the well-known rule on the subject. We, accordingly, sustain appellant’s fourteenth assignment.

We also think the arguments complained of In the twelfth and fifteenth assignments were objectionable. June Teaele was shown by the evidence to have been near the plaintiff at the time of the accident, and possibly in a situation to have witnessed what then occurred, and we think that the evidence, fairly construed, fails to support the argument complained of in the twelfth assignment, to the effect that June Teaele was “in the power” of appellant, or had been an “employs” of the defendant, helping to get up evidence, and that therefore the failure of appellant to put its said employe on the stand amounted to a confession that what the plaintiff testified to about the circumstances at the time of the injury was true. The evidence referred to in the bill of exception as possibly supporting this argument, when construed as a whole, amounts only, in substance, to the fact that June Teaele, as a constable, of the precinct in which the accident occurred and as an officer of the county, had served certain subpoenas, and in that way had assisted in getting the witnesses of appellant in court. The evidence as to what occurred at the time of and immediately preceding the happening of the accident was not entirely harmonious, and the fact that appellant may have availed itself of the services of a peace officer to serve subpoenas certainly does not support a charge that the defendant thereby had Teaele “in its employ and in its power,” or give to the defendant any control of Teacle’s testimony not equally possessed by the plaintiff. The plaintiff testified that at that time of the accident the defendant failed to ring a bell or blow the whistle, but there was no evidence to the effect that such failure had occurred on other occasions. The argument, therefore, complained of in the fifteenth assignment, to the effect that the defendant had so neglected to ring the bell or blow the whistle “before,” and that he, counsel for the plaintiff, expected that the defendant had run its trains across the road at the north of the depot at Sanger a dozen times before the accident in question without blowing the whistle or ringing the bell, was outside of the record and violative of the rule before referred to. The arguments referred to in the several assignments mentioned, we think, as a whole were prejudicial.

Error is also assigned to the action of the court in overruling the defendant’s fifth special exception to the amended original petition of the plaintiff for want of verification, as provided by amended article 1829a of the Revised Statutes. See Laws 1913, p. 257. In answer to this assignment appellee has presented a motion for certiorari to perfect the record, supported by several affidavits tending to show that the petition in fact was signed and sworn to before the clerk at the time the exception was presented. The transcript fails to show any such verification by the clerk, and the motion for certiorari was not presented in this court until the day of submission of the cause, which comes too late. See rules 8, 11, and 22 (142 S. W. xi, xii); H. & T. C. Ry. Co. v. Parker, 126 S. W. 942. The ruling, however, need not be further discussed, inasmuch as the defect reached by the special exception may be easily remedied on another trial.

The plaintiff alleged that the reason for his departure from the defendant’s depot was that he had been ordered out by the agent, and objection was made to such proof on the trial. We are not agreed as to the force of this objection. The writer, at least, is inclined to the view that this testimony was within the rule permitting introductory statements and matter explanatory of plaintiff’s action at the time, and therefore admissible, and certainly not prejudicial in view of the fact that plaintiff’s allegation to that effect was expressly admitted in the answer of the defendant. Others of us, however, are inclined to think the evidence was prejudicial, and that it ought to be omitted upon another trial.

There are a number of other assignments of error, but while all those not herein mentioned have been examined, they are overruled as being without merit.

Eor the errors discussed, however, it is ordered that the judgment be reversed and the cause remanded for a new trial.

Reversed and remanded.
      <g=3Por other cases see same topic and KEY-NUMBER in all Key-Nnmbered Digests and Indexes

      <S^For other cases see same'topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    FARRAR v. HOLT.
    (No. 8222.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    June 12, 1915.)
    1. Evidence <®=^444 — Pabol ¡Evidence— Wbitten Contbacts — Conditions.
    That a written contract of employment of a broker by a husband to procure a purchaser of land was on condition that the wife would join in a conveyance to a purchaser procured by the broker to authorize a recovery by the broker of the commissions could be shown by parol, not to show a modification of the contract, but to show that it did not become operative.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1929-1944, 2049; Dec. Dig. <S=» 444.]
    2. Appeal and Ebeob <S=» 194 — Questions Reviewable — Record.
    The sustaining of demurrers to the answer is reviewable on appeal from a judgment on a directed verdict for plaintiff after the introduction of his testimony, though defendant did not object to a peremptory instruction.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1241-1246; Dec. Dig. 194.]
    Appeal from Erath County Court; A. B. Xoung, Judge.

      Action by L. H. Holt against S. A. Farrar. From judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    J. B. Keith and R. L. Thompson, both of Stephenville, for appellant. Chandler & Pan-nill, of Stephenville, for appellee.
   CONNER, C. J.

The appellee instituted this suit to recover commissions in the sum of $277.77, alleged to have been earned by him for procuring a purchaser of appellant’s land. Appellee alleged, in substance, that appellant had listed his firm, consisting of 171 acres in Erath county, and agreed in writing that, if he should procure a purchaser, he (appellant) would pay to him, appel-lee, as commissions the said sum of $277.77. Appellee further alleged that a purchaser had been procured.

The appellant in answer to the petition pleaded, in substance, that the land for which the appellee was to negotiate a sale was the homestead of himself and wife and their community property, and that at the time the contract mentioned was made it was executed and delivered with the specific understanding that it should not become operative, valid, or binding as against appellant unless his wife should consent to and approve the contract; that it was not agreed that commissions were to be paid or received, or a remuneration of any hind given for services rendered in an effort to procure a sale, unless said sale was consummated on the approval of appellant’s wife. It was further alleged that, without fault on the part of appellant, his wife refused to concur in the contract or agree to a contract of sale that had been procured by the appellee.

Appellee presented both general and special exceptions to the several clauses of defendant’s answer setting up the special defense above indicated, all of which were sustained, and after the introduction of the evidence the court gave a peremptory instruction in appellee’s favor.

There is no statement of facts, and the only question presented goes to the sufficiency of the special answer set up by the appellant. Appellee urges, in answer to appellant’s assignment attaching the court’s ruling upon the demurrers, that:

“A contract which is clear and complete and is upon its face absolute and executed and delivered cannot be varied by parol evidence showing that it was not to be binding except upon the happening of some event or contingency.”

And that:

“A contract cannot be varied by parol evidence showing that the same was not to be binding except upon a condition subsequent.”

It seems evident that the court below entertained the view of the law expressed in the above quotations, but in this we think the court erred. ' The rule invoked is held to apply in this state to deeds to land, or deeds of trust affecting lands, where the delivery of the instrument was made to a grantee, but not to cases of the execution and delivery of ordinary written instruments such as presented in the appellee’s petition. See Holt v. Gordon, 174 S. W. 1097, by our Supreme Court. The distinction between the several lines of cases was clearly pointed out in the opinion of Mr. Justice Dunklin in the case of Holt v. Gordon (No. 7167) 176 S. W. 902, not yet officially published, before the decision of the Supreme Court. The question has been also clearly presented by the Supreme Court of the United States in Burke v. Du Laney, 153 U. S. 228, 14 Sup. Ct. 816, 38 L. Ed. 698; so that we need not repeat what has been so clearly presented in the cases cited. To be brief, from the authorities, we think, it must be said that the manual delivery of an instrument of the character under consideration may always be proven to have been on a condition which has not been fulfilled in order to avoid its effect. Such evidence is not admitted for the purpose of showing a modification or alteration of the terms of the written agreement, but for the purpose of showing that it was not delivered to take effect in presenti; that it never became operative; that its obligation never commenced. See, also, Meeks v. Holmes Commerce Co., 154 S. W. 365; Williams v. Wood Mowing & Reaping Mach. Co., 154 S. W. 366; Pope v. Taliaferro, 51 Tex. Civ. App. 217, 115 S. W. 311; Parker v. Naylor, 151 S. W. 1103; Baker v. De Vitt, 49 Tex. Civ. App. 607, 110 S. W. 528. We conclude that the court erred in his ruling upon the demurrers.

Appellee has objected to our consideration of the question on the ground that the record discloses no objection to the peremptory instruction of the court, citing the eases of Railway Co. v. Wheat, 173 S. W. 974; King v. Gray, 175 S. W. 763. But it seems quite evident to us that the principle' embodied in cases cited has no application here. Those eases are to the effect that a failure to object to an instruction constitutes a waiver of the question of whether the evidence was such as to authorize a submission of the charge. In the case before us, however, the action of the court in sustaining the demurrers to appellant’s answer left him defenseless. He was not thereafter required to offer evidence in support of a plea already condemned by the court, and there was, therefore, nothing left for the court to do after the introduction of the plaintiff’s testimony but to give the instructed verdict.

It is ordered that the judgment of the court be reversed, and the cause remanded for further proceedings in harmony with this opinion.
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author: DUNKLIN, J.

text:
    NAYLOR v. ANDERSON.
    (No. 8175.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    April 24, 1915.
    Rehearing Denied June 5, 1915.)
    1. Principal and Surety <®=>126 — Direction oe Surety to Sue Principal.
    While Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 6329, 0330, provide that a surety by notice in writing may require the holder of a contract for the payment of money forthwith to file suit thereon, and a failure of such creditor to institute suit at the first term of court thereafter, or at the second term, with a showing of good cause, will discharge the surety, the notice must be equivalent to an explicit and peremptory demand that suit be brought; and a letter by a surety on a note, requesting that the payee collect from the principal, written in response to a demand for payment, is not sufficient to exonerate the surety where the payee did not sue the principal.
    [Ed. Note. — Eor other eases, see Principal and Surety, Cent. Dig. §§ 430-450; Dec. Dig. 126.]
    2. Principal and Surety @=»129 — Liability op Surety — Discharge.
    Where a note contained a stipulation that the makers and indorsers waived presentation for payment, protest, notice thereof, and the bringing of suit at the first term of court, and consented that the time of payment might be extended without notice, the failure of the payee to sue the maker pursuant to the indorser’s request will not discharge the indorser, the stipulation being a wmiver of the statutes declaring that such failure should work a discharge.
    [Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 451 — 457; Dec. Dig. 129.]
    Appeal from Knox County Court; J. H. Milam, Judge.
    Action by John Naylor against T. M. An- • derson. From a judgment for defendant, plaintiff appeals.
    Reversed and remanded.
    D. J. Brookreson, of Benjamin, for appellant. Jas. A. Stephens, of Benjamin, for ap-pellee. '
   DUNKLIN, J.

John Naylor instituted this suit against T. M. Anderson upon a promissory note executed by Anderson and W. D. Phy, payable to plaintiff, and from a judgment in favor of defendant, plaintiff has appealed.

In the petition plaintiff alleged that Phy was not sued because he was insolvent and a nonresident of the state, and that his residence was unknown.

The trial was by the court without the aid _ of a jury, and the following are the findings ' of fact and conclusions of law filed by the trial judge:

“Findings of Fact.
“First. The note sued on was executed by W. D. Phy as principal and T. M. Anderson as surety and said note has not been paid.
“Second. Said note was executed in taking up another note, made by E. V. Glover as principal and T. M. Anderson as surety, and payable to Sam Earnest, which was given for a span of horses bought by E. V. Glover from Sam Earnest, who retained a mortgage on said horses from Glover to secure the payment of the note.
“Third. On the execution of the note sued on the chattel mortgage was not renewed.
“Fourth. When the note sued on became due T. M. Anderson wrote to Homer Lee, president of First National Bank of Munday, who was holding said note for collection, that he was only surety on said note, and that 'W. D. Phy, the principal, had property, subject to execution, sufficient to pay off said note, and that he wanted him (Homer Lee), to collect the money from Phy to pay off the note. This letter was in reply to a letter from Homer Lee to T. M. Anderson, calling Anderson’s attention to the date the note would become due and requesting payment.
“Fifth. After the letter written by T. M. Anderson- to Homer Dee, suit was not instituted till the second term of county court of Knox county, Tex., which was the court of proper-jurisdiction to bring the suit in, the first term having convened on the second Monday in January, 1913.
“Conclusions of Law.
“First. By reason of the failure of Homer Lee to bring suit against W. D. Phy, principal on said note, at the first term of the county court of Knox county, Tex., after having been given notice in writing by T. M. Anderson that he was only surety on said note, and that Phy was the principal, and that Phy had property, subject to execution, sufficient to pay said note, and that he wanted him (Lee) to make collection of the note from Phy, he (T. M. Anderson) was released from further liability on said note, and therefore gave judgment against plaintiff in this cause.”

The facts so found were specially pleaded by Anderson, who further alleged, in substance, that at the time he wrote the letter to Homer Lee, mentioned in the findings, Phy resided in Knox county, where the suit was instituted, and owned seven head of horses and nine bales of cotton, all of which was legally subject to the payment of the note; that in theTetter mentioned Anderson informed Homer Lee of those facts, and requested him to proceed at once against Phy to collect the note, but that plaintiff and his agent, Homer Lee, both negligently failed to comply with the request, and permitted Phy to dispose of his said property and to move his residence to the state of Oklahoma.

The note sued on purported to be the joint and several note of Phy and Anderson, and contained the following stipulation:

“The makers and indorsers severally waive presentment for payment, protest, and notice of protest and the bringing of suit at the first term of court upon nonpayment of this note after maturity, and also consent that time of payment may be extended without notice thereof.”

Articles 6329, 6330, Vernon’s Sayles’ Tex. Civ. Stat„ provide that a surety by notice in writing may require the holder of a contract for the payment of money forthwith to file suit thereon, and a failure of such creditor to institute suit thereon, at the first term of court convening thereafter, or at the second term, with' a showing of good cause why suit was not filed at the first term, will discharge the surety. But the notice to the creditor contemplated by the statutes must be equivalent to an explicit and peremptory demand that suit be instituted forthwith. The letter which Anderson addressed to Homer Lee, as found by the court, did not constitute such notice. National Bank of Commerce v. Gilvin, 152 S. W. 652, and authorities there cited. Furthermore, even though it should be held that the notice so given was in compliance with the statutes, still the stipulation contained in the note and quoted above clearly was a waiver of the defense provided by those statutes. Williams Bros, v. Rosenbaum, 79 S. W. 594; 2 Daniel on Negotiable Instruments, §i 1092.

From the findings copied it will be noted that the court accorded to Anderson full benefit of the statutes referred to, and rendered judgment in his favor solely upon that statutory defense, without reference to any question of equities between the parties aside from the statutes. For the erroneous conclusions so reached, the judgment is reversed, and the cause is remanded.

Reversed and remanded.
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