text:
    BONNER OIL CO. v. GAINES.
    (No. 6962.)

    (Court of Civil Appeals of Texas. Galveston.
    June 16, 1915.
    On Motion for Rehearing, Oct. 21, 1915.)
    1. Principal and Surety <&wkey;35 — Creation of Relation — Consideration — Extension of Past-Due Indebtedness.
    A creditor’s extension of the payment of a past-due indebtedness from a corporation upon receiving its 60 or 90 day notes would support a contract of suretyship evidenced by the in-dorsement of its president.
    [Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. § 68; Dec. Dig.
    2. Payment <&wkey;7 — Time — Extension—Past-Due Indebtedness.
    A creditor, extending a past-due indebtedness, by accepting the 60 and 90 day notes of a debtor conclusively bound himself not to collect the debt until the maturity of the notes.
    [Ed. Note. — For other eases, see Payment, Cent. Dig. § 11; Dec. Dig. &wkey;>7.]
    On Motion for Rehearing.
    3. Appeal and Error <S&wkey;493 — Record — Showing Jurisdiction. •
    A default judgment against a defendant will be reversed where the record fails to show service of citation, other than by the recital thereof in the judgment.
    [Ed/ Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 22S2-22S4; Dec. Dig. &wkey; 493.] •

      4. Appeal and Error: i&wkey;880 — Parties Entitled to Allege Error.
    In an action against a corporation on its notes and against its president as surety thereon, where the surety’s pleading did not seek any relief against the corporation by reason of his suretyship, and where the corporation did not appeal from a default judgment against it reversible on the ground that the record failed to show service against it, the surety could not raise the question of the want of a valid judgment against the corporation.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3584-3590; Dec. Dig. &wkey;> 880.]
    5. Appeal and Error <&wkey;724 — Assignments OP ERROR — SUFFICIENCY.
    Under Rev. St. 1911, art. 1612, requiring the plaintiff in error to file in the court below all assignments of error distinctly specifying the grounds on which he relies, and declaring that all other errors shall be waived, assignments sufficient to direct the appellate court’s attention to the errors complained of were sufficient.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2997-3001, 3022; Dec. Dig. <§=>724.]
    6. Principal and Surety <&wkey;163 — Judgment —Relief to Surety — Pleading.
    In an action against a corporation on its notes and against its president as surety thereon, where the surety sought no relief over against the corporation, a judgment against the surety was not required to be so framed as to subject the property of the principal to its satisfaction before proceeding against the surety for its collection.
    [Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 446-454; Dec. Dig. <&wkey; 163.]
    Error from District Court, Harris County; Wm. Masterson, Judge.
    Action by the Bonner Oil Company against the Lake Austin Canal Company and John W. Gaines. Judgment for plaintiff against the Canal Company and in favor of defendant Gaines, and plaintiff brings error.
    Reversed, and judgment rendered for plaintiff.
    Hunt, Myer & Teagle and Rodman S. Cosby, all of Houston, for plaintiff in error. Gaines & Corbett, of Bay City, and Cole & Cole, of Houston, for defendant in error.

      Application for writ of error pending In Supreme Court.

   McMEANS, J.

The Bonner Oil Company brought this suit against the Lake r Austin Canal Company, a coiporation, and John W. Gaines, on two promissory notes alleged to have been executed to it by the defendants, each for the sum of $445.20, dated February 3, 1914, bearing 8 per cent, per annum interest and maturing 60 and 90 days after date, respectively. The defendant Lake Austin Canal Company failed to appear and answer. The defendant Gaines answered, pleading want of consideration on his part for the execution of the notes which he alleged were given for a debt due by the canal company to plaintiff, and that he was not interested in such debt except as a stockholder in the defendant canal company. Plaintiff, in reply, pleaded that the execution of the notes by defendant Gaines was done for the purpose of securing an extension of time for the payment of the debt due by the canal company, and that therefore there was a valid consideration. To this the defendant Gaines replied that there was no specific agreement for the extension of time for the payment of the debt due by the canal company at the time he signed the notes, and that the plaintiff never requested him to sign the notes, and that the same were signed by him without request and without consideration. He also pleaded that the purpose of executing the notes was to settle all controversy as to the amount and validity of the debt due plaintiff by the canal company, and not for the purpose of securing an extension of time, or to limit the time within which plaintiff could sue on the debt. The case was tried before the court without a jury and resulted in a judgment by default against the defendant Lake Austin Canal Company for $990.40, together with $49.38 interest and $100.93 attorneys’ fees, aggregating $1,143.67, and in favor of defendant John W. Gaines. From the judgment in favor of defendant Gaines, the plaintiff has prosecuted a writ of error to this court.

Appellant by several assignments of error complains, in different ways, of the action of the court in rendering judgment in favor of defendant Gaines; the gravamen of the complaint being that the undisputed evidence shows that the act of said Gaines in signing the notes sued upon was based on a sufficient consideration to render his promise to pay them a binding obligation upon his part.

The following is a statement of the material undisputed facts as shown by the record : The Lake Austin Canal Company was a corporation duly chartered under the laws of Texas, and at the time at which plaintiff’s cause of action arose was, and so far as the record shows is now, a going concern. Its capital stock was $18,000, and was owned in equal amounts by defendant John \V. Gaines, his son, C. M. Gaines, and Ed Savage. John W. Gaines was its president, and Ed Savage its secretary and general manager. The Bonner Oil Company, plaintiff, was engaged in selling lubricating oils; and in endeavoring to make sales to the Lake Austin Canal Company, its agent, Mr. J. H. Bland, called upon Mr. Savage and solicited him to buy, and was referred by Savage to Mr. Gaines, and after talking the matter over with Mr. Gaines the latter told the agent to go back to Mr. Savage and tell him to order what he wanted. Savage thereafter ordered from time to time oil in such quantities as he desired, the value of which amounted to $890.40, no part, of which was ever paid. Afterwards the Bonner Oil Company began trying to collect this sum, and to this end its said agent, Bland, went to Bay City, where the principal office of the corporation was located, and where the defendant Gaines lived, to see Mr. Gaines with reference to payment; but Mr. Gaines was away, and Bland did not then see him. Later be again went to Bay City for tbe purpose of mating a collection, bis purpose being to either collect tbe amount due, or a part of it, or to close tbe account with notes, and carried with him blank notes to be filled out and executed, in tbe event tbe amount was not paid. He called upon Mr. Gaines at his office,' and the latter, after’ Mr. Bland bad stated that his purpose in calling was to get some money on tbe debt, stated to Bland that tbe corporation bad not sold its rice at that time, and that they bad bad bad luck, whereupon Bland presented tbe blank notes which were filled out for equal amounts, aggregating tbe amount of tbe debt, and were signed by tbe corporation by Mr. Gaines as its president and also signed by him in his individual capacity, and as thus signed were banded to Mr. Bland. Bland testified that when be banded tbe notes to Gaines for execution be said to bim, in substance:

“Mr. Gaines, we would be glad to have the notes, because they will help us out with the bank; we might be able to handle the notes at the bank, and get the money, and if we can accommodate you, we will do it in that way.”

He further testified that, when Gaines returned the notes to bim after signing them, he stated:

“Mr. Bland, I am' doing this for you, I don’t for the company; I don’t often do this, or this is something I haven’t often done, or something to that effect, and I thanked him for it, and said I appreciated it very much that he did do it.”

Pie further testified:

“If Mr. Gaines had simply given me two notes of the corporation, and had not executed the notes himself, I would not have accepted them.”

He did not request Mr. Gaines to sign the notes individually, nor did be tell him that he would not accept the notes of the corporation without his individual signature.

Mr. Gaines, testifying as to the circumstances under which he signed the notes, stated:

“Mr. Bland came into the office and told me, as he stated, that the company needed the notes, or could ■' use the notes, or something to that effect, and they asked to close the account with a note, or two notes, divided into two equal amounts, and make them payable 60 and 90 days after date, and after discussing it a little while we agreed'to that. The purpose, as stated by Mr. Bland, was just to enable them to use the paper as collateral at the bank, that they might do it; he didn’t say they would do it; he said they might need them, and that if they did they could use them to hypothecate them with the bank to obtain advances. That was the sole reason assigned for wanting the account settled by notes.”

Pie further testified:

“I have been puzzled several, times myself just why I did sign the paper at the time, to tell you the honest truth, and I couldn't tell you to this day why I did it. . I don’t know why I indorsed that paper. * * * It , is a mystery to me.”

After the noté, which matured 60 days after its date, fell due,, defendant Gaines wrote to the plaintiff asking for a further extension of time in which to pay the same. In this letter, which is dated April 27, 1914, be says: ' |

“In this connection I wish to say that if you will do so (extend time of payment until fall) the Lake Austin Canal Company will very much appreciate you carrying this account over until fall, as it is practically impossible for them to pay it at this time, and get through this season's work. I will re-indorse this paper, payable in the fall, and if you will do as above suggested, it will be a great accommodation to me and to the canal company.”

It is undisputed tbat the debt was due at the time the notes were executed, and that tbe time of payment was extended 60 and 90 days by the giving of the notes.

Under the facts as above stated, the court held that the signing of the notes by John W. Gaines was without consideration, and upon this view rendered judgment in his favor; and in so doing, we think, committed error.

When Mr. Bland accepted the notes by which the time of payment of the debt was extended 60 and 90 days, Mr. Gaines had signed his name thereto as surety. Mr. Bland did not request him to become surety upon the notes in so many words, hut that he expected Mr. Gaines to sign them is shown by his uncontradicted testimony that he would not have accepted them had not Mr. Gaines so signed them.' The corporation desired further time for payment, and hence was willing to execute the notes which bore 8 per cent, interest in lieu of the debt which drew less interest, if any at all. Mr. Gaines, for his corporation, desired tbat the extension be granted, and was willing to and did sign his name to the notes which effectuated the extension. That he considered himself bound as a surety is conclusively shown, we think, by his letter written after the note first maturing fell due, in which he requested a further extension of time of payment until fall and agreeing to re-indorse tbe note if the corporation would grant such extension.

It seems to be well settled that the extension of time of past-due indebtedness will support a contract of suretyship. The plaintiff made no express promise to Gaines to forbear to sue, or to extend the time of payment. The negotiations were brief, consisting of a demand upon Gaines, as president of the debtor corporation, for payment of a past-due debt, a statement by him of the inability of the corporation to pay it and the reason why, the production of the notes and their execution' by Gaines for his principal and himself, and the return to and acceptance thereof by Bland. The execution of the notes amounted to an extension of time by the plaintiff, but the notes would not have been accepted and the time extended if .Mr. Gaines had not signed them individually. By accepting the notes the plaintiff conclusively bound itself not to collect tlie debt until the maturity of the notes. It parted with its absolute right to sue and collect at once. Hannay v. Moody, 31 Tex. Civ. App. 88, 71 S. W. 325.

In 2 Pars. Con. (6th Ed.) p. 5, it is said:

“If the original debt or obligation is already incurred or undertaken previous to the collateral undertaking, then there must be a new and distinct consideration to sustain the guaranty. * * * It is not necessary that any consideration pass from the one receiving the guaranty to the party giving it. If the party for whom the guaranty is given receive a benefit, or the party to whom it is given receive an injury, in consequence of the guaranty, and as its inducement, this is a sufficient consideration.”

So in 1 Pars. Cont., p. 443, it is said a waiver of any legal or equitable right is a sufficient consideration for a promise.

In Hannay v. Moody, supra, a case quite similar in many of its material facts to the present, this' court said :

“By the acceptance of the notes, which, by their terms, were not payable until the lapse of 90 days, Moody & Co. effectually bound themselves not to collect it earlier, and thus abandoned their legal right to proceed at once against their debtor. The inference from these facts is a conclusion of law which they could not be heard to question except on the ground of fraud or mistake. That they might have proceeded in attachment sooner than the due date, if sufficient grounds existed, can make no difference. They parted with their absolute right to sue and collect at once, and had left to them the right to sue only under extraordinary conditions.”

And it was held that the contract of the sureties, who signed the notes there sued upon, was binding upon them, although the only consideration therefor was the extension of time of payment of the past-due indebtedness of their principal.

In Thompson v. Gray, 63 Me. 230, cited in Hannay v. Moody, after holding that a promissory note given by one person for the antecedent debt of another is not void for want of consideration, if it is made payable at a future day, says:

“Such a note necessarily operates as a suspension of the right of the creditor to enforce payment of his debt till the note matures; and it is a rule of law too well settled to require the citation of authorities in support of it that such a suspension of the right of the creditor to enforce payment of his debt is a sufficient consideration for the promise of a third person to pay it. Tt is not necessary that there should-be an express agreement for delay. The taking of a new security payable at a future day, by operation of law, and without any special agreement to that effect, imposes upon the creditor the duty of waiting for his pay till the new security matures.”

To the same effect are York v. Pearson, 63 Me. 587; Fulton v. Loughlin, 118 Ind. 289, 20 N. E. 796; and Bank v. Bridgets, 98 N. C. 67, 3 S. E. 826, 2 Am. St. Rep. 317.

In Fulton v. Loughlin, supra, it is said:

“But a promissory note negotiable according to the law merchant, is not void for want of consideration, if it be given for the antecedent debt of a third person and be made payable at a future day. Such a note operates to satisfy' the debt, prima facie, or at least to suspend the right of the creditor to enforce payment until the note matures, and an express' or implied agreement to delay the collection of a precedent debt is a sufficient consideration to support the promise of a third’person.”

From the facts stated and, the authorities quoted it follows, we think, that John W. Gaines, by executing the notes for the debt of the Lake Austin Canal Company, bound himself, upon a sufficient consideration, to pay them, and therefore that the judgment in his favor was erroneous, and should be set aside, and that judgment should be here rendered in favor of the Bonner Oil Company against him on said notes for the principal, interest, and attorneys’ fees, and it has been so ordered.

Reversed and rendered.

On Motion for Rehearing.

In his motion for rehearing, defendant in error, Gaines, contends that the action of this court in reversing the judgment of the court below in his favor, and in here rendering judgment against him, was erroneous for the reason that the record does not show that the trial court had jurisdiction to render judgment against his codefendant, the Lake Austin Canal Company; and, the judgment of this court being against him as a surety on the note of the canal company, no judgment could be rendered against him as a surety without a valid judgment against the canal company to support it. His contention that the record fails to show that the trial court had jurisdiction to render judgment against the canal company is based upon the fact that judgment was rendered against said company by default, and the record fails to disclose that the canal company had been served with citation, other than by the recital of that fact in the -judgment itself.

If, in these circumstances, the Lake Austin Canal Company had appealed, we would have felt, under the rules laid down in the following cases, that it was our duty to reverse the judgment against it: Daugherty v. Powell, 139 S. W. 625; McMickle v. Texarkana Nat. Bank, 4 Tex. Civ. App. 210, 23 S. W. 428; Glasscock v. Barnard, 125 S. W. 615; Mayhew v. Harrell, 57 Tex. Civ. App. 509, 122 S. W. 957; Wheeler v. Phillips, 22 S. W. 543.

But the Lake Austin Canal Company did not appeal from the judgment against it, and Mr. Gaines not having, in his pleadings, sought any relief against the canal company by reason of his suretyship, the question raised cannot be presented for the canal com-, pany by its eodefendant, Gaines, and is not therefore properly before us for review.

He further contends that this court erred in considering the assignments of error presented by the plaintiff in error, for the reason that such assignments do not present, for the consideration of this court, the questions considered and determined by it. A similar contention was raised by the defendant in error in his brief and considered by the court in passing upon the case, and it was our conclusion then, and is now, that the objections to ttLe assignments of error were untenable. The assignments are not as clear as they might be, but we then thought, and now think, they are sufficient to direct our attention to the errors complained of, and under article 1612, Revised Statutes, 1911, this was sufficient.

Defendant in error further contends that, this court having rendered judgment against him as a surety for the canal company, the judgment should have been so framed as to first subject the property of the canal company to its satisfaction before proceeding against him for its collection. The answer to this is that no such relief was sought by his pleadings in the lower court, nor by him in his brief in this court.

Upon the riierits of the case we will not add to what was said in our main opinion, other than that a further investigation has satisfied us of the correctness of the conclusions there stated; and in further support of the opinion cite the recent case of People’s State Bank v. Fleming-Morton Co., 160 S. W. 648.

The motion is overruled.
      <&wkey;>For other oases see same topic and KEY-NUMBER in all Key-Numbered big'ests and Indexes

      i&wkey;'For other eases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: CARL, J.

license: Public Domain

text:
    BANKS v. MIXON.
    (No. 5508.)
    (Court of Civil Appeals of Texas. San Antonio.
    Oct. 13, 1915.
    Rehearing Denied Nov. 10, 1915.)
    1. Trial <@^349 — Refusal to Submit on Special Issues.
    Where the court would have been justified in peremptorily instructing the jury to return a verdict for the plaintiff, there was no error in its action in refusing defendant’s request to submit the case on special issues.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 823-827; Doc. Dig. &wkey;349.]
    2. Bills and Notes <&wkey;537 — Liability of Accommodation Surety.
    Where, in an action on a note in evidence, defendant admitted its execution, but alleged that he was an accommodation surety, and that the plaintiff had a mortgage on personalty of the maker to secure the note’s payment, neither party seeking to have the mortgage foreclosed, but both asserting it was beyond their reach, no affirmative relief being asked by the defendant by way of being subrogated to any of plaintiff’s rights, peremptory instruction to return a verdict for plaintiff was proper.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1862-1893; Dec. Dig. &wkey;> 537.]
    3. Appeal and Error <&wkey;499 — Bill of Exceptions — Submission on Special Issues— Time of Request.
    A bill of exceptions to the refusal of the trial court to submit the case on special issues should show at what point in the trial the re- ' quest was made.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2295-2298; Dec. Dig. <&wkey;> 499.]
    Appeal from Frio County Court; S. T. Dowe, Judge.
    Action by George K. Mixon against G. Longorio and T. H. Banks. Judgment for plaintiff, against Banks, and the latter appeals.
    Affirmed.
    Kerclieville & Dewald, of Devine, for appellant. Magus Smith, of Pearsall, for ap-pellee.
   CARL, J.

Appellee, Geo. K. Mixon, sued one G. Longorio and T. H. Banks on a joint and several promissory note for $243.90 principal, and for 10 per cent, interest per an-num from September 1, 1913, and for 10 per cent, attorney’s fees. The suit against Longorio was dismissed upon allegations that he was notoriously insolvent, and his residence unknown, he being a fugitive from justice, and judgment was prayed for as against T. H. Banks alone.

Banks admitted the execution of the note, but alleged that he was an accommodation surety, and that Mixon had a mortgage on certain personal property of Longorio to secure the payment of the note, but had negligently failed to reduce the same to possession, and had permitted said security to be lost and placed “where they cannot now be reduced to possession of the plaintiff, nor to the possession of said defendant T. H. Banks in case of his subrogation to the debt of his principal.” The defendant Banks, in his pleadings, offered to pay the debt less the value of the mortgaged property. No affirmative relief is asked by Banks.

The judgment was for the full amount of the note, interest, and attorney’s fees against Banks, and he has appealed.

The first assignment of error complains of the action of the court in refusing to submit the ease on special issues. There was no error in this respect, because the court would have been justified in peremptorily instructing the jury to return a verdict for the plaintiff. Neither party sought to have the mortgage foreclosed, but, on the contrary, both assert that it was beyond their reach. No affirmative relief is asked by Banks in the way of being subrogated to any of Mixon’s rights, and the note was in evidence, the execution of which was admitted by him. And, by examining the transcript and bill of exceptions, it does not appear that the request to submit the case on special issues was made before the main charge was given to the jury. G., H. & S. A. Ry. Co. v. Cody, 92 Tex. 632, 51 S. W. 329. In the case cited Chief Justice Gaines says:

“A proper bill of exceptions would have shown at what point in the progress of the trial the request was made.”

There is no necessity of commenting on the other assignments; for we have examined same, and believe them to be untenable. We have also examined the statement of facts, and find nothing therein, nor in the pleadings, which would make it necessary to even submit this cause to a jury.

Therefore all assignments are overruled, and the judgment is in all, things affirmed.
      <g=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HUFF, C. J.

text:
    PECOS & N. T. RY. CO. et al. v. WINKLER.
    (No. 819.)
    (Court of Civil Appeals of Texas. Amarillo.
    Oct. 26, 1915.)
    1. Master and Servant <@=>278, 281 — Injuries to Servant — Negligence—Contributory Negligence — Evidence.
    Evidence in an employe’s action for injuries held sufficient to support findings that defendant negligently failed to provide a reasonably safe place for plaintiff to work, and that plaintiff was not guilty of contributory negligence.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 951, 956-958, 960-969, 971, 972, 977, 987-996; Dec. Dig. <@=>278, 281.]
    2. Master and Servant <@=>252 — Injuries to Servants — Notice of Claim — Waiver.
    Where plaintiff, in obtaining employment, signed an agreement that failure to give notice to the employer within 30 days after injury should bar his action for damages thereon, and after he was injured the employer’s agent took a written statement of the claim of the plaintiff, taking the statement waived the requirement of written notice.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 806; Dec. Dig. <@=>252.]
    3. Master and Servant <@=>252 — Contract of Employment — Limitation of Liability.
    Under Rev. St. 1911, art. 5714, providing that a stipulation in a contract requiring notice as a condition precedent to suit for damages for personal injuries must be reasonable, and making any stipulation for notice in less than 90 days void, and making void every stipulation between a railway and its employé for such notice in eases of injuries caused by negligence, a contract of employment of the plaintiff as a switchman for defendant requiring notice to be given in 30 days will not defeat plaintiff’s action, whether notice is given or not.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 806; Dec. Dig. <@=>252.]
    4. Master and Servant <@=>203 — Negligence <@=>101 — Injuries to Servant — ¿Assumed Risk — Contributory Negligence— Effect.
    Where a servant assumes a risk, it will defeat recovery for injuries caused thereby in any sum, but his contributory negligence on his part merely diminishes his recovery.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 538-543; Dec. Dig. <§= 203; Negligence, Cent. Dig. §§ 85, 163, 164, 167; Dee. Dig. <@=>101.]
    5. Master and Servant <@=>291 — Injuries to Servant — Instructions — Assumption of Risk — Contributory Negligence.
    In a switchman’s action for injuries, an instruction that if, in going in front of moving cars, plaintiff knew the danger, and that it was not required of him in the performance of his duty, and if he was negligent, he was guilty of contributory negligence, is erroneous for attempting to combine contributory negligence and assumption of risk.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1133, 1134, 1136-1146; Dec. Dig. <@=>291.]
    6. Master and Servant <@=>224 — Injuries to Servants — Assumption of Risk.
    Where the servant is injured while at work, but in doing an unnecessary act of his own volition, the master is not liable; it being an assumption of the risk.
    [Ed. Note. — For other cases, see Master and Servant, Cent'. Dig. § 654; Dec. Dig. <@=>224.J
    7. Negligence' <@=>101 — Injuries to Servant —Comparative Negligence.
    In order to diminish recovery by the servant on account of contributory negligence, the employer need not show that the servant knew of the danger because of which he was injured, but it is sufficient that at the time he did not exercise due care.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 85, 163, 164, 167; Dee. Dig. <@=>
    8. Appeal and Error <@=>1140 — Medical Care — Amount—Remission.
    Where a verdict allows an excessive amount for medical attendance, the error will be cured by plaintiff’s filing a remittitur so as to conform the amount to that supported by the evidence.
    [Ed. Note — For other cases, see Appeal and Error, Cent.Dig. §§ 4462-4476; Dec.Dig. <@=>1140.]
    9. Trial <@=>260 — Requested Instructions— Necessity.
    It is not error to refuse a requested instruction substantially covered by the charge of the court.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. <@=>260.]
    10. Appeal and Error <@=>730 — Matters Re-vie W ABLE — ReCO RD.
    Where an assignment of error fails to give the substance of the requested charge on the refusal of which it is based, and the statement thereunder does not set it out nor refer to the page of the record where it may be found, the court will regard it as waived.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3013-3016; Dec. Dig. <@= 730.]
    11. Trial <@=250 — Instructions—Conformity to Pleadings and Evidence.
    Refusal to instruct upon an issue not raised by the pleadings or evidence is proper.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 5S4r-5S6 ; Dec. Dig. <@=250.]
    12..Master and Servant <@=289 — Injuries to Servant — Contributory Negligence. Where a switchman seeks recovery for personal injuries received when he went between cars to make a coupling, the question whether the coupler could have .been operated from the side of the- ears without going between them so as to make the plaintiff guilty of contributory negligence was for the jury.
    [Ed. Note. — For other cases', see Master and Servant, Cent. Dig. §§ 1089, 1090, 1092-1132; Dec. Dig. <@=>289.]
    13. Appeal and Error <@=1008 — Harmless Error — Instructions.
    The refusal of a requested instruction that, if plaintiff switchman was guilty of negligence in going in front of a -car to make a coupling, and defendant railway company was not guilty of negligence, the jury should find for defendant, presents only harmless error, where the verdict shows that the jury found the defendant guilty of negligence.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4225-4228, 4230; Dee. Dig. <@=1068.]
    14. Appeal and Error <@=1051 — Harmless Error — Admission of Evidence.
    Where plaintiff, an experienced switchman, injured in coupling cars, was permitted, to testify that he “had to” get down between the cars to make a coupling, the admission of such testimony, if error, was harmless; it already having been shown that the coupler would not open the ImueMe, so that the opinion evidence given was immaterial.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4161-4170; Dec. Dig. @=> 1051.]
    15. Master and Servant @=>274^-Personal Injuries — Contributory Negligence — Evidence-Custom.
    In the absence of a specific rule forbidding employés to make couplings by going between the cars, evidence of the custom of employés in that regard is admissible to rebut contributory negligence.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 939-949; Dec. Dig. @=> 274.]
    16. Witnesses @=>396 — Conflicting Statements — Explanation.
    Where the agent of defendant railway company by false and fraudulent representations procured a statement from plaintiff, injured while employed by defendant, that he had entirely recovered from all injuries received, and the statement is introduced on trial to contradict the plaintiff as to his injuries, evidence of plaintiff as to the circumstances surrounding the giving of the statement and as to its falsity is admissible.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1261-1264; Dec. Dig. @=>396.]
    17. Witnesses @=>414^0orroboration — Evidence-Admissibility.
    A report of defendant railway company’s investigator on the condition of a car coupling, in operating which plaintiff was injured, is not admissible to corroborate the testimony of the investigator, unless made before motive for concealing defects arose.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1287, 1288; Dec. Dig. @¿=>414.]
    18. Evidence @=>359 — Experts — Photograph.
    Evidence of a physician attending plaintiff switchman injured while in the employ of the defendant, as explained by means of X-ray photographs of the plaintiff’s anatomy after injury, is admissible, if preliminary evidence has established the correctness of the photographs.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1509-1512; Dec. Dig. @=>359.]
    Appeal from District Court, Potter County; J. N. Browning, Judge.
    Action by Frank Winkler against the Pecos & Northern Texas Railway Company and others. From a judgment for plaintiff, defendants appeal.
    Reversed and remanded.
    Terry, C'avin & Mills, of Galveston, and Madden, Trulove, Ryburn & Pipián, of Amarillo, for appellants. J. H. Synnott, of Dallas, and R. E. Underwood, of Amarillo, for appellee.
   HUFF, C. J.

Winkler sued appellants, railway companies, for damages occasioned by injuries received by him, alleged to have been inflicted on him while in the employment of appellants, on the 2d day of April, 1913, in and about the switchyards of appellants in Amarillo. The jury returned a verdict in his favor for $6,000.

The negligence alleged is as follows:

“That about the 1st day of April, 1913, the defendants, their agents and servants, negligently dug, bored, and excavated a large and deep hole about 12 inches in diameter and about 16 inches deep near the center of said yards and plaintiff’s aforesaid place of work, between the end of two ties and just on the outside and right against the rail of one of the said many tracks or switches over which it was plaintiff’s duty, as aforesaid, to assist in the operation of defendants’ trains, and thereafter negligently and carelessly allowed and permitted said hole to remain and refused to fill, close, or remove the same during the entire day of April 2, 1913.”

He further alleged, while performing his duty, he stepped into the hole above set out and fell in front of a train of cars being switched, which ran over and injured him; that the train of cars was being switched on track No. 4, to be coupled onto other cars standing on said track, and that he rode on the north front car of the train, which was being switched, for the purpose of making the coupling; that the knuckle of the front car was defective, in that, when the pin was raised, the knuckle would not open as the car approached the stationary cars, the knuckle remained closed, and in order to make the coupling it was necessary that the knuckle on said car should be opened by hand, and it was his duty, under such circumstances, to descend from the moving car and overtake the knuckle and open the same before it came in contact with the standing cars, and as the moving cars came near the hole, and after appellee had endeavored to open the knuckle with the lever of the coupling, and could not do so, he descended from the car and stepped-ahead of same and between the rails to open the knuckle, and as he turned around the end of the car for the purpose of stepping between the rails ahead of the moving car, his foot slipped and slid into said hole, which caused him to fall in front of the car and between the rails; and that he was thereby injured, etc.

The defendants denied specifically the acts of negligence set out, and that the accident was not due to any negligence upon the part of the defendants in the particulars alleged, but was due to the negligence of appellee in going in front of the car, when there was no necessity or duty requiring him to do so, pleading contributory negligence, assumed risk, etc.

The trial court submitted to the jury whether the appellants were negligent in digging a hole at the place it did and whether it was negligent in leaving it there unfilled and level, and whether such negligence was the proximate cause of appellee’s injury. The evidence will authorize the inference that some engine at some time previous to appellee’s fall stopped at the point where the hole was, and that it was made by water from the overflow pipe attached to the engine, and that the hole was something near the size described in the petition; that it had been made previous to the day on which appellee was injured, and left in that condition, rendering it dangerous and unsafe for employés required to work in the yards switching cars and trains. It will authorize the inference also that the employé whose duty it was to keep clear the track at that point either saw the hole the morning previous to the fall, and negligently failed to fill it, as was his duty, or that he negligently failed to discover it, which he could have done hy proper care, and will authorize the inference that appellee stepped in this hole, and that it caused him to fall in front of the cars, and that some three or four passed over him, dragging him and injuring him in several portions of his body, as alleged, and that this was negligence on the part of appellants which proximately caused the injury to ap-pellee. We therefore would not, under the facts of this case, he warranted in finding that there was no evidence, as a matter of law, warranting the jury to find that appellants negligently failed to provide a reasonably safe place in which for appellee to work. M., K. & T. Ry. Co. v. Wise (Civ. App.) 106 S. W. 465. This case was affirmed by the Supreme Court, 101 Tex. 459, 109 S. W. 112; Railway Co. v. Manns, 37 Tex. Civ. App. 356, 84 S. W. 254; Railway Co. v. Toliver, 37 Tex. Civ. App. 437, 84 S. W. 376; Railway Co. v. Redeker, 67 Tex. 181, 2 S. W. 513. Without stating our conclusion of the facts, we do not feel authorized to say there were no facts which would authorize an inference by the jury that appellee was not guilty of contributory negligence. Railway Co. v. Adams, 94 Tex. 100, 58 S. W. 831; Railway Co. v. Smith (Civ. App.) 101 S. W. 453.

The appellee made a written application for employment with the appellants, in which it is stated, if he should be injured while in the employment, that he would in 30 days after such injury give notice in writing of any claim for damages to the claim agent or general claim agent of appellants, and that a failure to give such written notice of such claim within 30 days should be a bar to the institution of any suit on account of such injury. This clause was set up as a bar to appellee’s cause of action by the appellants. The facts in this case show that in less than a week after the injury appellant’s claim agent called on appellee for a statement, which he gave to the agent. This statement was reduced to writing, and appellee signed it, and was referred to by the evidence in this case.

The trial court, at the request of the appellants, submitted to the jury whether the above provision contained in appellee’s application was reasonable, and whether the notice stipulated for had been waived by appellants. The jury evidently found it was unreasonable or had been waived. We believe the fact that appellants obtained the statement of the claim of appellee in writing within a week after the injury would authorize the finding that the appellants had waived the giving of notice stipulated for. Railway Co. v. Hendricks, 49 Tex. Civ. App. 314, 108 S. W. 745. We do not believe, under our statutes, appellants could defeat the claim for damages occasioned by personal injuries by stipulating that notice thereof must be given within 30 days after such injury. Article 5714, R. O. S.; Railway Co. v. Hudgins (Civ. App.) 127 S. W. 1184.

For the reasons above expressed, we do not believe the trial court was in error in refusing appellee’s special requested peremptory instructions, and the assignments Nos. 1, 2, 3, and 4, together with the propositions thereunder, will be overruled.

The fifth assignment of error will be overruled. Taking the second and sixth paragraphs of the court’s charge together, we think the jury was sufficiently instructed as to the facts required to be proven by appel-lee by a preponderance of the evidence, and that the burden was on him to so establish such facts. The sixth assignment complains that the fourth paragraph of the court’s charge is erroneous. The court instructed that the duty was on appellants to furnish appellee a reasonably safe place to occupy while in the discharge of his duties as switch-man and use ordinary care to keep its railway tracks and sufficient space of ground adjacent to it clear of holes and excavations, which would likely interfere with the switch-man in the discharge of his duty; that there was no duty on the switchman to inspect the premises where he was expected to work. The court did not instruct the jury that ap-pellee “was not required to use any care to discover the presence of any hole,” etc., as asserted by appellants in their proposition. The trial court did instruct that he was required to use ordinary care and prudence to avoid injury to himself. The objection taken to the charge is not sound. The charge of the court is substantially the language used by the Supreme Court in several cases, except the jury were not charged thereby that “he does not assume the risk arising from the failure of the master to do his duty, unless he knows of the failure and the attendant risk, or in the ordinary discharge of his own duty must necessarily have acquired knowledge.” The appellants do not except to the charge because of this omission by the court. However, in the eighth paragraph of the court’s charge this omission, if there was any error in omitting it, was covered, and no injury could have resulted to appellants thereby. Bonnell v. Railway Co., 89 Tex. 72, 33 S. W. 334; Railway Co. v. Hannig, 91 Tex. 347, 43 S. W. 508; American Machinery Co. v. Haley (Civ. App.) 165 S. W. 83.

The seventh, eighth, and ninth assignments assail the sixth paragraph of the court's charge, on the ground that it assumes appel-lee exercised ordinary care in trying to make the coupling and ignores contributory negligence, or that it assumes the hole caused appellee to fall. We will not set out the charge or discuss these assignments further than to say we do not think the charge assumes any of the facts, but leaves to the jury the duty of finding the facts. We do not regard the charge as being on the weight of the evidence.

The appellant’s tenth and eleventh assignments assail the ninth paragraph of the court’s charge, which is as follows:

“(9) By contributory negligence, as used in this charge, is meant such act or omission on the part of plaintiff as an ordinarily prudent person would not do, under the same circumstances which act or omission, concurring with a. negligent act of omission, if any, of the defendants, or where the defendants were free from negligence on their part, became the proximate cause of the injury complained of. Now, therefore, if you believe from the testimony before you that plaintiff, as defendants’ switch-man, knew that the duties he assumed were hazardous and dangerous, and that he knew of the condition of the tracks and yards on which he was working, and knew of the probable presence of the holes or excavations near such tracks, caused by the handling of engines and cars upon and over the same, or that lie should have known or discovered the same in the exercise of ordinary care in the course of his employment, or if you believe from the evidence that he knew, or should have known, that it was dangerous, and not necessary or required of him, to go between the rails in front of moving cars in the performance of his duties, and you believe that he neglected and failed to exercise ordinary care for his own personal safety in so doing, and you believe that, under all the circumstances, such Was negligence on his part "and contributed to his injuries, then, if the defendants were not guilty of negligence on their part you will find for the defendants; but, if you find from the evidence that the defendants were guilty of negligence, as alleged by plaintiff, and that the same was the direct and proximate cause of plaintiff’s injury, and that he suffered damages as the proximate result thereof, then the plaintiff would nevertheless be entitled to recover for such damages, if any, as were the direct and proximate result of the negligence, if any, of the defendants, and the jury in such case will diminish and deduct his damages in proportion to the negligence attributable to the plaintiff which contributed directly to such injuries and damages.”

In this state the distinction between assumed risk and contributory negligence is recognized. If the servant assumes the risk, it will defeat a recovery for any sum; while, under our statute, contributory negligence concurring with the negligence of the master proximately producing injury will diminish recovery. Railway Co. v. Hodnett (Sup.) 103 S. W. 13. If the appellee knew of the hole in the track and the danger therefrom in performing the work, he was guilty of assumed risk, which would defeat a recovery for any amount, and he could not recover diminished damages, as charged by the court. Railway Co. v. Bradford, 66 Tex. 732, 2 S. W. 595, 59 Am. Rep. 639; Railway Co. v. Shehan (Sup.) 18 S. W. 151; Railway Co. v. Lempe, 59 Tex. 19. Again, if he knew of the danger “and that it was not necessary or required of him to go between the rails in front of moving cars in the performance of his duty,” this, too, would be assumed risk on his part, which would defeat a recovery. 3 Labatt, Master & Servant (2d Ed.) § 1166; Railway Co. v. Mathis, 101 Tex. 342, 107 S. W. 530. Labatt says:

“In these, as in most other cases where the intentional adoption of a certain line of action is proved, the facts will also be suggestive of contributory negligence. But it is both unnecessary and disadvantageous to rely upon the conception which raises a disputable question, if a decisive element is supplied by the clear evidence of a deliberate choice on the servant’s part, or the exercise of his own judgment in creating the conditions which occasioned the accident.”

Judge Gaines, in the Mathis Case, supra, quotes the above section from Labatt with, approval. Now, in this case the court tells the jury, if they find in going in front of the moving ears appellee knew the danger, and that it was not necessary or required of him in the performance of his duty, if he was negligent, he would be guilty of contributory negligence. If he knew the danger, and it was not necessary or required of him to go in front of the moving cars, it would be a deliberate choice or the exercise of his own judgment which occasioned the accident. If the jury so found the facts; they must necessarily have found he deliberately assumed the risk, knowing the danger. He selected an unnecessary way and one not required. The master could not, under the law, be made responsible for the servant’s own voluntary act and choice. Of course, if there is an issue raised by the evidence whether going in front of the car was then necessary or required in order to perform his duty, the court should submit the question whether an ordinarily prudent man would have done so under the circumstances. The appellee claimed on account of the defect in the coupler he was required to go in front of the car. The appellants claim it was unnecessary, for the reason that the coupler would open the knuckle from the side of the car, and that the coupler was not defective. If the appellee did not then know the danger, even though the coupler was defective, it may be that the question of contributory negligence should have been submitted; but if, where he both knew the danger and that it was not necessary, he, by his own volition, assumed the risk, the master would not be liable for anything. The defect in the track may have been known to appellee; yet he may not have known that such defect was dangerous to him, or necessarily so. The Lempe Case, supra. The facts may present the issue if .the defendant knew, or should necessarily have known, of the defect, but did not then know of the danger in performance of his duty, which, under the circumstances, was then necessary to be performed, by going in front of the moving train, whether he then under the circumstances acted as an ordinarily prudent person would have done; but, if he knew the defect and knew the danger and that it was unnecessary to go in front of the car, he could not recover anything on the ground that he assumed the risk. Railway Co. v. Wilson, 189 Ill. 89, 59 N. E. 573. In order for appellants to diminish the damages on account of contributory negligence, they were not required to show that the appellee knew the defect and danger. All they were required to show was that, under the then conditions or circumstances, appellee, in trying to make the coupling, did not act with ordinary care. The charge is defective in attempting to couple contributory negligence and assumed risk together, and in such way as to confuse the issue. This has frequently been held error in tliis state. Railway Co. v. Bryant, 8 Tex. Civ. App. 134, 27 S. W. 825. We do not regard the charge as harmless, even though the trial court may have properly instructed the jury on assumed risk. We are unable to say the jury did not find the facts constituting assumed risk and followed this charge on contributory negligence, instead of one on assumed risk; that is, they may have found the facts which would defeat a recovery, but diminished .the damages as directed in this charge. This charge must necessarily reverse the case.

The twelfth assignment is overruled. We believe the tenth paragraph of the charge substantially 'correct.

The thirteenth assignment will be sustained, as we find no evidence that the amount paid for drugs and the doctor’s bill were reasonable. The evidence shows that the amount paid was $75. However, this error could he cured by a remittitur.

The fourteenth assignment is overruled. The eleventh paragraph of the court’s charge, in our judgment, is not subject to the criticism here urged.

The fifteenth assignment of error is overruled. The ninth paragraph of the court’s charge substantially gave the same rule for diminishing the damages on account of contributory negligence as here requested.

The sixteenth assignment. This assignment does not give the substance of the charge requested, and the statement thereunder in appellants’ brief does not set out the charge or refer to the page of the record where it may be found. This assignment will be considered waived.

The seventeenth assignment complains at the action of the court in refusing the fifth specially requested charge. This charge presents the issue of assumed risk. The court substantially gave this charge in the main instruction, which is embodied in paragraphs 4 and 8 thereof.

The eighteenth assignment is overruled. Special charge No. 6 was properly refused. There was no issue raised, either by the pleadings or evidence, that called for the charge. There was not the slightest .chance of the jury finding negligence on the part of the appellant because the string of ears was permitted to roll down the track detached from the engine.

The nineteenth assignment is overruled. The charge as drawn was not correct under the issues of the case. There was no recovery sought on account of the defect in the coupler, and such defect was not submitted to the jury by the charge of the court as a ground of recovery. If the coupler had worked properly, it may be there was no necessity to open the knuckle with the hand. Under such circumstances, it may have been negligence on the part of the appellee to go in front of the car to open it, but this would be a question for the jury to determine under the circumstances of the case, and the court would not have been authorized to instruct the jury that, because the coupler worked properly, they should find for appellants. Whether it was contributory negligence or not was a question for the jury under the facts of this case, and if it was contributory negligence, that would not have defeated a recovery entirely, but would have only diminished the recovery in proportion to appel-lee’s negligence.

The twentieth assignment is overruled. The refusal of this charge is shown to be harmless by the verdict of the jury. The charge requested sought to have the jury instructed that, if appellee was guilty of negligence in going in front of the car to make the coupling, and appellants were not guilty of negligence, then they would find for appellants. The jury, by their verdict, found from the evidence that the appellants were guilty of negligence. Hence they could not have found for appellants under the charge. If the charge had told the jury to diminish the damages in proportion to appellee’s negligence, then its refusal might have been harmful, and perhaps such a charge should have been given.

The twenty-first assignment complains of the following testimony, admitted over appellants’ objection, that is, that it was the opinion of the witness:

“When I got down in order to get in front of the car and open it with my hand, I had to do so so the car would couple.”

He had testified that the lever of the coupler would not open the knuckle. It was shown that the knuckle had to be opened to make the coupling. The appellee had sufficient experience to give an opinion as to what was required to make a coupling. This, if an opinion, was so immaterial under all the facts as to render it harmless.

The twenty-second assignment complains at the action of the court in permitting appellee to testify:

“When these couplers do not open that way it is customary to open them by hand”

—and in permitting Nick Browning to testify:

“Men do step in front of cars to make couplings when there is no necessity for it. I do not think they do that when the couplers can be worked on the outside.”

The appellants objected because this testimony was the opinion of the witnesses and that there was no pleading of custom, and such custom could not be made the basis of negligence on tlie part of appellants. The appellants, on cross-examination of appellee, sought to show there was a rule forbidding employés going in front of moving cars, and sought by Browning to show the same fact on direct examination. On the redirect examination of appellee, and the cross-examination of Browning, the above testimony was elicited. There was no such rule as was sought to be proven shown. Appellee sought to show that when the lever would not raise the knuckle that there was no other way to make the coupling, except by lifting it by the hand, and this was the manner in which it was done by the employés. This evidence was offered, as we conceive it, not to prove negligence on the part of the appellants, but to show that appellee acted in the usual and customary way and as an ordinarily prudent man would have acted. The evidence indicates that this practice was of such a nature that appellants must necessarily have known of it, and,' if so, then appellants would be bound by it. In the absence of any specific rule on the question, the practice of the employés of appellants would be admissible. On the question whether the appellee acted in the ordinary way in making the coupling, it occurs to us that it was proper for this testimony to go before the jury as a circumstance on the question of appellee’s negligence. This appears to be the holding of authorities in this state, and that such testimony and evidence as here admitted has been admitted with approval on the issue of contributory negligence. Gallaway v. Railway Co. (Civ. App.) 78 S. W. 32; Railway Co. v. Engelhorn, 24 Tex. Civ. App. 324, 62 S. W. 561, 65 S. W. 68; Railway Co. v. Still (Civ. App.) 100 S. W. 182; 3 Labatt on Master & Servant (2d Ed.) § 1269. This was not a ground of negligence charged against appellants, but simply an effort to show that appellee acted in the usual and ordinary way. We think, in the light of all the evidence in this record, tlie admission of the testimony could not have injured appellants.

The twenty-third assignment corn-plains of the action of the court in permitting appellee to testify what he told one West as to this condition from his injuries at Et. Worth, etc. It appears that West came to Amarillo and induced appellee to go to Et Worth after his injuries with him, under a promise of procuring appellee a position as the manager of an accident insurance company. While there West ostensibly was instructing him in his duties. It appears that appellee and West went in bathing, and appellants procured and offered in evidence photographs of appellee and West while in bathing. While at Ft. Worth the appellee filled out application for insurance, in which he stated:

“I now state that I am fully recovered from said accident and physically able to .perform the duties pertaining to insurance work,”

Appellee testified he told West about the accident and the truth about his physical condition, and that West tried to get him two or three days to make the statement introduced by appellants, and he told West he would not do so. West insisted, and continued to urge appellee to sign the statement, stating that it was not material and would do no harm, and that it was a matter of form, and West said appellee could not get the position without signing it. This testimony as to what occurred between West and appellee is the evidence objected to. The appellee contends that West was a secret detective for the Santa Fé appellants, and for the purpose of entrapping him induced appellee to sign the statement. There are facts and circumstances from which a jury might infer such contention to be true. The appellants had introduced the above quotation from the application signed by appellee. We understand the rule to be, where the statement of the witness is introduced to contradict his testimony on trial, he may explain the reasons which induced him to make it. Smith v. Traders’ National Bank, 82 Tex. 368, 17 S. W. 779, 783; Railway Co. v. Walden (Civ. App.) 46 S. W. 89; Comer v. Thornton, 38 Tex. Civ. App. 287, 86 S. W. 19.

The twenty-fourth assignment urges that the court was in error in excluding the statement or report of T. H. Farrell made to the appellants upon the condition of the coupler on the car which the appellee claims would not open and shortly after the injury. This witness testified fully as to its condition and referred to his statement as a memo randa while on the witness stand. Upon appellants offering the report made by this witness to appellants, the appellee interposed objection, which the court sustained. It is contended that this should have been admitted, for the reason that the credibility of the witness was questioned, and that the condition of the coupler was controverted. This witness was offered to show that appellee’s testimony as to the coupler was not correct. There was no effort to impeach Farrell, but he himself acted as a controverting witness of the testimony of appellee. The witness evidently had the same motive for making the statement contained in the report that he had in giving his testimony upon the trial. After the accident he examined the car for the purpose of his report. This report or statement will not be admissible in corroboration of his testimony, unless such declaration was made at a time when there was no motive existing to assist the appellants in obtaining testimony in this case. This is not shown in the record. Insurance Co. v. Eastman, 95 Tex. 34, 64 S. W. 863.

The twenty-fifth and twenty-sixth assignments complain’ at the action of the court in permitting the introduction of X-ray photographs of appellee’s neck and that of Dr. Gist. Dr. Vineyard owned the machine making the photographs and made them, and testified very fully to his experience in such work, and it was shown by the witnesses that the photographs correctly represented the condition of appellee’s neck. We believe a sufficient predicate was laid for the introduction of the photographs, and there was no error in admitting them. We see no objection to the testimony of Dr. Gist in explaining the photographs and showing the bones which were exhibited thereby and in explaining what bones were named in the testimony. We believe it would be an aid to the jury in understanding the testimony of the witnesses as to the bones which were claimed to have been injured by appellee and denied by appellants. We see no error in the action of the court in this particular. All that is required for the introduction of photographs of this kind, is that preliminary evidence should be given of its correctness. This was done in this case. Jones’ Blue Book on Evidence, vol. 3, § 411.

The judgment will be reversed, and the cause remanded.
      ®s>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      ,<g^>Por other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, C. J.

text:
    HART-PARR CO. v. ALVIN-JAPANESE NURSERY CO. et al.
    (No. 478.)
    (Court of Civil Appeals of Texas. El Paso.
    Oct. 28, 1915.)
    1. Appeal and Error <@=>101 — Orders Ap-pealable — Appointment of Receiver.
    Where a receiver was appointed, and subsequently on an amended petition the order of appointment was vacated, but was followed by a later order in the same decree reappointing the receiver, an appeal from the order of appointment lies under the express provisions of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2079.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 575-5S9; Dec. Dig. <@=> 101.]
    2. Appeal and Error <@=>1052 — Reception of Evidence — Cure of Error.
    In a proceeding for the appointment of a receiver, the admission of secondary evidence as to the contents of the books of defendant was cured by the production of the books in court although the entries therein were not read.
    [Ed. Note. — For other cases, see Appeal and Error, Cent.Dig. §§ 4171-4177; Dee.Dig. <@=>1052.]
    3. Pleading <@=>245 — Amendments — Condition of Cause.
    In proceedings for the appointment of a receiver, it was not error to permit the plaintiffs to file a trial amendment after the evidence was closed and argument had begun, and to consider such amendment as a basis for the appointment.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 635, 653-675; Dee. Dig. <@=>245.]
    4. Corporations <@=>557 — Receivers — Appointment — Grounds.
    Where a petition for the appointment of a receiver alleged that defendant was indebted to plaintiffs for goods, wares, and merchandise; that defendant’s assets were greater than its liabilities, and if permitted to operate, defendant would be able to pay all its obligations in full; that practically all the creditors were willing that the business continue; that one creditor was threatening to levy an attachment, which, if levied, would be followed by others, with the result that the defendant’s assets would be dissipated; that if such assets were thrown upon the market at the present time they would not bring a sum sufficient to pay the obligations; that in order to conserve such assets, the appointment of a receiver was necessary, when supported by proof, stated grounds for the appointment of a receiver, under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2128, providing that receivers may be appointed, where the corporation is in imminent danger of insolvency.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2227, 2228, 2230-2236; Dec. Dig. <@=>557.]
    5. Corporations <@=>553 — Appointment of Receiver — Collusion .
    In proceedings for the appointment of a receiver for a corporation, where it appeared that the managers of the corporation, realizing that its assets were such, when compared with its liabilities, that if the creditors were to foreclose and collect their debts by public sale, insolvency would result, and that they apprised the creditors of such fact, such action was not sufficient to constitute collusion for the purpose of covering up the debts of the corporation.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2201-2216; Dec. Dig. <@=>553.]
    6. Corporations <@=>557 — Appointment of Receiver — Appointment in Fraud of Creditors.
    In a proceeding for the appointment of a receiver for a corporation, in danger of becoming insolvent, allegations that the assets would be conserved by the appointment of a receiver, that all its debts would be paid and something would be left over; that it would be a great benefit to the community to allow defendant to continue its business — were not sufficient to show that the creditors were attempting to delay the collection of debts of others.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2227, 2228, 2230-2236; Dec. Dig. <@=557.]
    Appeal from District Court, Harris County ; J. W. Woods, Special Judge.
    Suit by the Hart-Parr Company against the Alvin-Japanese Nursery Company and others. From an interlocutory order appointing a receiver, plaintiff appeals.
    Affirmed.
    Love, Channell & Fouts, of Houston, for appellant. Sam, Bradley & Fogle, of Houston, for appellees.
   HARPER, C. J.

This appeal is from an interlocutory order, appointing a receiver of the property and assets of the Alvin-Japanese Nursery Company. Appellee filed motion to dismiss the appeal because it is from an order overruling the motion of appellant to vacate the order appointing, instead of an appeal from an order appointing a receiver. The facts are that upon petition, on. September 9, 1914, the court appointed one Brown receiver. Upon the 5th day of December, 1914, the court, after amended petition, entered an order vacating the said order of appointment, but followed this latter order in the same decree with the following:

“But the court is of the opinion, further, that the amended pleadings are sufficient to authorize and support the appointment of a receiver. * » * It is therefore ordered, adjudged, and decreed that the said S. B. Brown is here now reappointed receiver.”

And this is an appeal from this order of appointment, and such is permitted under the statute, article 2079, Vernon’s Sayles’ Stat.; Rubber Co. v. Wilson, 137 S. W. 710.

The first assignment is that it was error to allow one Jones as a witness to testify as to what he found the books of the defendant company to contain with reference to indebtedness due by it and other matters, because it was secondary evidence. The bill of exceptions is qualified by the trial court:

“The books were afterwards produced in court and offered in evidence, but the entries they contained were not read.”

If error, this would cure it. Besides, there is no attempt to show that the court before whom the hearing was had considered the evidence complained of in arriving at his conclusions. There is no question as to the extent of the liabilities of the defendant.

The second is that it was error to permit plaintiffs to file a trial amendment after the evidence was closed and argument of counsel had begun, and to consider such amended pleadings as a basis for the appointment of the receiver. Pleadings may be amended after argument has begun. Telegraph Co. v. Bowen, 84 Tex. 477, 19 S. W. 554. The provisions of article 1824, R. S., forbidding amendments after announcing ready for trial, is directory only. Pitzer v. Decker, 135 S. W. 161. The facts here do not show that the court abused his discretion; therefore there was no error in. permitting the amendment to be filed, nor in considering it as a basis for the appointment.

The third and fourth urge that the order of the court overruling appellant’s motion to vacate the original appointment and that portion reappointing the receiver are not authorized by the pleadings and evidence. The original plaintiffs, viz., W. T. Stevens, Northrup & Clark Saddlery Company, Richards & Schulte Company, the Texas Company, H. E. Montgomery, South Texas Implement & Vehicle Company, Citizens’ State Bank of Alvin, Tex., S. J. Daugherty, and K. Kishi, allege by their second amended original petition, also called the trial amendment, that the defendant Alvin-Japanese Nursery Company is a corporation; that it is engaged in the business of propagating, buying, and selling nursery stock, planting oranges and other crops, etc.; that it has liabilities aside from its capital stock amounting to about $111,000; that it is indebted to plaintiffs in the various sums set out, total about $39,100; further alleging that the amounts were for goods, wares, and merchandise, etc., furnished the defendant company or evidenced by notes, etc. Further alleged that the assets of the defendant company are much greater than its liabilities, and, if permitted to operate, will be able to pay all of its obligations in full, naming the assets and their probable value; that practically all of the creditors are willing that the business continue that the assets of the company may be realized on without sacrifice; that one creditor to the extent of about $3,000 is threatening to levy an attachment; that if such attachment be levied, other creditors, in an effort to protect their interests, will likewise levy; that the effect thereof would be to dissipate the said assets, render its business and good will worthless, etc.; that the defendant has not now money with which to pay its obligations now due, and cannot realize the money therefor except in the due course of business of said company; that if it is permitted to continue its business, it can pay, but if the assets are thrown upon the market at the present time, they would not bring a sufficient sum to pay the obligations, etc.; that in order to conserve the assets of said company and to protect the rights of the creditors’ petition herein, it is necessary that a receiver be appointed, etc. Article 2128, Sayles’ Stat. 1914, provides that receivers may be appointed: (1) In an action by a creditor to subject any property or fund to his claim; (2) where it is shown that the property is in danger of being lost, removed, or materially injured; (3) in cases where a corporation is in imminent danger of insolvency. The petition is sufficient to authorize the court to appoint the receiver as it did, and there is evidence to support the allegations in the petition. The appointment, therefore, cannot be disturbed. Ripy v. Red W. L. Co., 48 Tex. Civ. App. 311, 106 S. W. 474. It is clear from the allegations and proof that the defendant corporation is in imminent danger of insolvency.

Appellee, by propositions, urges that a receiver will not be appointed for a corporation : (a) Upon its own application; (b) nor at the instance of creditors acting in collusion with the corporation for the purpose of covering up its assets or delaying the collection of other debts; (c) that it is evident from the facts proved that the request for a- receiver was made for the purpose of assisting the defendant corporation to pay its debts and have sufficient capital left to continue business upon a profitable basis; that therefore the court was not authorized to make the appointment. The pleading and proof do not support the propositions. This suit was not filed by the corporation, and the facts show no more than that the managers of the corporation, realizing that its assets were such, compared with its liabilities, that if the creditors were to foreclose and collect their debts by forced public sale, it would result in insolvency, frankly told the creditors the facts as they existed. This is not sufficient to constitute collusion for the purpose of covering up the debts of the corporation. There is an allegation in the petition that by means of a receivership the assets of the defendant may be conserved to the payment of all its debts and leave something with which the corporation could continue its business, and that it would be a great benefit for the community, where the corporation’s principal place of business was located, to have the defendant continue its going business, but these allegations were no more than matters of inducement in urging the appointment, and in no wise show that the creditors were in any way attempting to cover up anything or to delay the collection of the debts of others. It is true the appointment of a receiver might result in such delay, but because such might be the result would be no reason to set aside the appointment, where the pleadings and proof show that the parties praying for the receivership are clearly entitled to it. The trial court must have resolved these matters in favor of the receiver, i. e., that the petitioners were acting in good faith with no ulterior or improper motive, and it will be presumed that the court, being present, observing the witnesses and their manner of testifying, was in a better position to arrive at the facts than an appellate court, and the court is still in charge of the property through the receiver, and if at any time it shall be made to appear by motion in the trial court that through a receivership is not the best way to administer the affairs of the corporation to the end that the best interests of all concerned may be subserved, the receiver, upon such showing, will be discharged.

Finding no error in the record, the cause is affirmed.
      <§=^For Other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: FLY, C. X

text:
    INTERNATIONAL & G. N. RY. CO. v. REEK et al.
    (No. 5506.)

    (Court of Civil Appeals of Texas. San Antonio.
    Oct. 13, 1915.
    On Motion for Rehearing, Nov. 10, 1915.)
    1. Pleading <@=>369 — Injuries to Servant— Election Between Counts.
    Where, in an action by the surviving wife and children of a railroad employé for his death, the pleadings were intended to meet proof as to his having been engaged either in intrastate or interstate commerce at the time of his death, such pleadings were not improper as an attempt to recover under federal and state statutes at the same time, and plaintiffs were under no necessity to elect under which statute they would proceed.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 1199-1209; Dec. Dig. <@=>360.]
    2. Trial <@=>232 — Submission on Special-Issues — Instruction Calling eok General Verdict.
    Where a cause was submitted on special issues, a charge correctly embodying the law, but calling for a general verdict, should not be given.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 524, 525; Dec. Dig. <@=>232.]
    3. Appeal and Error <@=>564 — Record—Necessity for Filing Statement.
    Where the appeal bond was filed December 9, 1914, the transcript was filed in the Court of Civil Appeals March 6, 1915, and on April 14, 1915, a purported statement of facts which had never been filed in the lower, court was filed in the appellate court, such statement could not be considered, since the law requires that it be filed in the lower court at some period within
    90 days from the date the appeal was perfected by filing an appeal bond.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2501-2506, 2555-2559; Dec. Dig. <@¿=564.]
    4. Appeal and Error <@=>644- .Record — Late Filing oe Statement oe Facts — Notice oe Court.
    Courts of Civil Appeals will notice a failure to file a statement of facts in time, although the question be not raised by the appellee.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2795-2798; Dec, Dig. <£=>
    5. Trial <@=>232 — Request eor Submission on Special Issues — Propriety of informing Jury oe Party Making Bequest.
    There was no error in informing the jury which party had requested that the cause be submitted on special issues.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 524, 525; Dec. Dig. <@=>232.]
    On Motion for Rehearing.
    6. Appeal and Error <@=>564 — Record — Statement — Excuse for Late Filing.
    Where the statement of facts is filed late in the trial court, more than 90 days after perfection of the appeal by filing an appeal bond, upon proper showing, made in the motion for rehearing, that counsel had difficulty in getting the statement prepared, thus excusing the delay, the statement will be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2501-2506, 2555-2559; Dec. Dig. <@=>564.]
    7. Appeal and Error <@=>564 — Record — Consideration oe Statement — Estoppel oe Court.
    As no power resides in the clerk of a Court of Civil Appeals or any justice thereof to refuse to permit the filing of a statement of facts which was not filed in the lower court, filing'in the Court of Civil Appeals does not preclude such court from refusing to consider the statement or estop it from exercising the duty to reject such purported statement. The duty to determine the validity of a statement of facts devolves upon the court only when the matter is called to its attention in a motion to strike out the statement or in its own independent investigation of the case.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2501-2506, 2555-2559; Dec. Dig. <@=>564.]
    8. Appeal and Error <@=>564 — ¿Record — Statement of Facts — Time for Filing — Agreement of Counsel — Effect.
    Agreement by appellee’s counsel that the statement of facts might be filed out of time could not relieve appellant of the duty and necessity of filing such statement in the trial court.
    TEd. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2501-2506, 2555-2559; Dec. Dig. <@=>564.]
    Appeal from District Court, Bexar County ; R. B. Minor, Judge.
    Action by M. C. Reek and others against the International & Great Northern Railway Company. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    Wilson, Dabney & King, of Houston, and Cobbs, Eskridge & Cobbs, of San Antonio, for appellant. Perry J. Lewis, Champe G. Carter, Randolph L. Carter, and H. C. Carter, all of San Antonio, for appellees.

      Writ o£ error pending in Supreme Court.

   FLY, C. X

This is a suit by M. O. Reek, surviving wife of Christian Reek, Sr., deceased, and Christian Reek, Jr., Kate Reek Feille, Edward Reek, and Mary Reek, surviving children of said Christian Reek, Sr., deceased, to recover damages for the negligent kill-irig of said Christian Reek, Sr., by appellant. Tire cause was tried by jury and resulted in findings, in answer to special issues, that Mary C. Reek should recover $12,000, Edward Reek $5,000, Mary Reek $3,000, Kate Reek Feille $1,000, and Christian Réek, Jr., $100. Judgment was accordingly so rendered.

The first and second assignments of error assail the action of the court in overruling exceptions to those paragraphs of the petition in which it was alleged that the plaintiffs did not know whether the deceased was engaged in intrastate or interstate commerce at the time of his death, and it is contended that an attempt was made to recover under federal and state statutes at the same time, and that appellees should have been compelled to elect under which statute they would proceed. The exceptions were properly overruled. There was no effort to recover under two statutes, but the pleadings were intended to meet proof as to one class of commerce or the other. If the evidence showed that deceased was engaged in interstate commerce, then the federal statute would apply; but, if it showed that he was engaged in intrastate commerce, then the state statute would apply. It would have been a remarkable fact if the evidence had shown that deceased was engaged in both classes of commerce at one and the same time. The assignments are overruled. Certainly appellant was in no wise injured by the action of the court in regard to the exceptions. There are propositions under the second assignment of error that have no possible connection with it and are not germane thereto; for instance, the seventh proposition, which seeks to show that the pleading was in violation of section 1 of the fourteenth amendment to the Constitution of the United States.

The third assignment of error is overruled. The charge asked by appellant was clearly erroneous, in that it would have taken the question of negligence from the jury. The evidence raised a question of fact to be determined by a jury as to whether the contributory negligence of deceased. caused his death, and it would have been error for the court, under the circumstances of this case, to have charged .the jury that his failure to do, or not do, certain things, was negligence. The cause was submitted on special issues, and, if the charge had embodied the law, it should not have been given because it called for a general verdict. Railway v. Jones, 175 S. W. 488, and authorities therein cited.

In connection with the third assignment, as well as the fourth, fifth/ seventh, eighth, ninth, tenth, and eleventh assignments of error, they must depend for their' vitality and effectiveness on the existence of certain facts which have not been made known to this court through the medium of a-statement of facts prepared and filed in the lower court in the manner and within the time provided by law. The purported statement of facts filed in this court in this suit fails to show that it was ever filed in the lower court at any time, while the law requires that it be filed at some period within 90 days from the date that the appeal was perfected by filing an appeal bond. The appeal bond was filed on December 9, 1914; the transcript of the proceedings was filed in this court on March 6, 1915, within the 90 days. On April 14, 1915, over 100 days after the appeal had been perfected, a purported statement of facts, which had never been filed in the lower court, was filed in this court. There is a certificate by the stenographer appended to the statement of facts which indubitably shows that the record was not completed until April 3, 1915, and consequently if it had been filed by the district clerk at that time it could not be considered because not filed within the statutory time. The purported statement of facts will not be considered. Thomas v. Matthews, 51 Tex. Civ. App. 304, 112 S. W. 120; Belt v. Cetti, 53 Tex. Civ. App. 102, 118 S. W. 241; Railway v. Waggoner, 102 Tex. 260, 115 S. W. 1172. Courts of Civil Appeals will notice a failure to file the statement of facts in time although the question is not raised by the appellee. McKenzie v. Beason, 140 S. W. 246; Connally v. Saunders, 142 S. W. 975; Hines v. Sparks, 146 S. W. 289; Hayes v. Groesbeck, 146 S. W. 327.

There is no merit in the twelfth assignment. If could not have injured appellant to inform the jury that it had requested the cause to be submitted on special issues.

The thirteenth assignment of error is overruled. The error complained of has no foundation in law or in fact.

The fourteenth assignment is overruled.

No error is presented requiring a reversal, and the judgment is -affirmed.

On Motion for Rehearing.

The affidavits appended to the motion for rehearing clearly show that counsel for appellant labored under great difficulties in getting a statement of facts prepared, and the showing made would fully exonerate counsel from any neglect in not filing the statement of facts within the 90 days if it had been filed at any time in the trial court. There was a failure to do but one necessary thing, and that was the filing in the lower court. Had that been done, upon the showing made in the motion for rehearing, the statement of facts would have been considered by this court. No power has been given the clerk of this court, or to any justice of the court, to refuse to permit the filing of a statement of facts which was not properly prepared in the lower court, and the filing in this court does not preclude the court from a refusal to consider such, statement, nor estop it from exercising the duty of rejecting a paper purporting to be a statement of facts, but which is not such statement because not filed in the lower court. If the statement of facts, so called, was properly filed in this court, that does not relieve appellant of the effects of a failure to file in the lower court. That filing is essential to the vitality and validity of a statement of facts, and the filing in this court could not give life to a document that had never been brought into legal existence. It is not the duty of this court, or any member thereof, nor of the clerk, to investigate a statement of facts and pass on its validity before it is filed; but that duty devolves on the court when the matter is called to its attention in a motion to strike out such statement, or in the investigation of the case.

No excuse is given for a failure to file in the trial court, and the fact that counsel for appellee may have agreed that the statement of facts might be filed out of time did not relieve appellant of the duty and necessity of filing the statement in the trial court. The agreement may have put the statement of facts in the same position that it occupied before the time expired; that is, prepared it so that it could be filed in the lower court. The agreement could not dispense with the filing, and did not attempt so to do.

It is to be regretted that the agent to whom counsel confided the duty of filing the statement of facts did not file the same, and that he offers no excuse for such failure. It is not claimed, nor attempted to be shown, that the agent ever presented the statement of facts to the district clerk.

The motion for rehearing is overruled.
      <£a»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WALTHALL, J.

text:
    J. I. CASE THRESHING MACH. CO. v. LIPPER.
    (No. 482.)
    (Court of Civil Appeals of Texas. El Paso.
    Oct. 28, 1915.)
    Appeal and Eeeob <&wkey;79 — Decisions Reviewable — Pinal Judgments.
    Where, in an action upon a note asserting a lien on an automobile, in which a number of parties are made defendants as asserting an interest, and by intervention, neither the judgment below nor the record on appeal shows any .disposition of the issues between some of the parties plaintiff and defendant, the appeal must be dismissed, since it is not a final judgment so as to give jurisdiction to the Court of Civil Appeals.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 484-493; Dec. Dig. <&wkey;> 79.]
    Appeal from District Court, Harris County; N. G. Kittrell, Special Judge.
    Suit by J. S. Jarrell against James J. Gor-man on a promissory note and chattel mortgage. J. L. House, Thornton Hamilton, and O. M. Lipper were made parties defendant, as asserting an interest in the mortgaged automobile. The J. I. Case Threshing Machine Company intervened, asserting a prior lien on the automobile. The intervener having sequestered the automobile, judgment was rendered in favor of Lipper against the in-tervener, but was silent as to the issues between Jarrell and Gorman, and as to lien rights between Jarrell and Lipper. Inter-vener appealed from such judgment.
    Appeal dismissed.
    A. B. Wilson and Cole & Cole, all of Houston, for appellant. Lawrence Sochat, of Houston, for appellee.
   WALTHALL, J.

This suit was originally filed by J. S. Jarrell against James J. Gorman on a promissory note for $2,000, asserting a chattel mortgage lien upon certain automobiles, among which was the one involved in this controversy. J. L. House, Thornton Hamilton, and appellee, O. M. Lip-per, were made parties defendant, as asserting some claim to certain of the automobiles upon which plaintiff Jarrell claimed the lien.

Appellant, the J. I. Case Threshing Machine Company, a corporation, intervened ini the suit, asserting a prior lien upon one of the automobiles by reason of the execution and delivery by defendant Gorman of a certain chattel mortgage to intervenor to secure the payment of the purchase price of said automobile.

Appellee, Lipper, was in possession of the automobile at the time the intervention was filed, claiming to be the owner thereof by reason of his having purchased it from defendant Gorman, paying a valuable consideration therefor. The automobile in question was sequestered by intervener, and on the trial before the court without a jury judgment was rendered in favor of appellee, Lipper, and against appellant intervener, for $850, as the value of the automobile sequestered. Pursuant to a written agreement, defendants Hamilton, House, “and the inter-vener John Walker” were “dismissed out of this cause, and go hence without day; all costs as to said defendants and intervener to be adjudged against Walker, intervener.”

The appeal was taken by appellant frorq the judgment rendered against it in favor of appellee, Lipper, for the value of the one car in controversy between' appellant and appel-lee. The judgment rendered in the case is as follows:

“Be it remembered that on this, the 16th day of October, came on to be heard the above-entitled cause, upon the intervention of the J. I. Case Threshing Machine Company, as between them and the defendant O. M. Lipper; and both parties appearing by counsel, and the court, having heard the witnesses and argument, and having examined the authorities submitted, is of the opinion that the law is with the defendant Lip-per; wherefore it is ordered, adjudged, and decreed that the defendant Lipper do have and recover of the J. I. Case Threshing Machine Company the sum of $850, with interest at 6 per cent, from the 14th day of November, 1913, as the value of the car taken by them on the sequestration, and together with all costs in this behalf incurred, for all of which let execution issue against the said J. I. Case Threshing Machine Company and the sureties on both the sequestration bonds and the replevy bond, jointly and severally — to which judgment, the said J. I. Case Threshing Machine Company excepted and-gave notice of appeal.”

Neither the judgment nor the record in this court show what order or disposition, if any, was made in the trial court of the plaintiff Jarrell or the defendant Gorman, or of the issues as between them, nor of the asserted mortgage lien as between Jarrell and Lipper. Jarrell sued to recover judgment against Gorman on a promissory note, and asserted a mortgage lien on other property than the one car claimed by the appellant. The judgment does not dispose of either the parties or the issues between Jarrell and Gor-man, and between Jarrell and Lipper, and is not a final judgment.

For the reasons stated, this court is without jurisdiction, and the appeal is dismissed.
      <g=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, J.

text:
    DAVIS v. STATE.
    (No. 3730.)
    (Court of Criminal Appeals of Texas.
    Oct. 20, 1915.)
    1. Weapons <&wkey;17 — Unlawfully Carrying Pisto i^Evidence — Sufficiency.
    Evidence in a prosecution for unlawfully carrying a pistol held sufficient to sustain a conviction. ■
    [Ed. Note. — For other cases, see Weapons, Cent. Dig. §§ 20, 22-33; Dec. Dig. <S&wkey;17.]
    2. Criminal Law <&wkey;829 — Requested Charge —Giving Effect.
    Where, in-a prosecution for unlawfully carrying a pistol, the court gave a charge fairly presenting the issue, and in the language selected by accused, it was unnecessary to give other special charges requested by accused on the same issue.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. @=3829.]
    3. Weapons &wkey;>8 — Carrying Pistol — In-structio n — Refusal.
    In a prosecution for unlawfully carrying a pistol it was not error to refuse to charge that, if the jury believed the pistol was broken and would not shoot, “or” that it was unloaded at the time when, etc., there should be an acquittal, since it is not the law that' one carrying an unloaded pistol is guilty of no offense.
    [Ed. Note. — For other eases, see Weapons, Cent. Dig. § 7; Dec. Dig. <&wkey;8.j
    4. Criminal Law <&wkey;1028-Misdemeanor-
    Conviction — Questions Considered.
    Upon appeal from a conviction of a misdemeanor, the court can pass only upon such questions as are properly raised in the trial court.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2619, 2620; Dec. Dig. <&wkey;> 1028.]
    5. Criminal Law <&wkey;822 — Charge—Contradiction — Effect.
    In a prosecution for unlawfully carrying a pistol, the objection that the charge as given was contradictory cannot prevail, where the charge, read as a whole, was clear in meaning, and could. not have misled the jury.
    [Éd. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1990, 1991,1994, 1995, 3158; Dec. Dig. <&wkey;>822.]
    Appeal from Henderson County Court; G. D. Owen,' Judge.
    Sing Davis was convicted of unlawfully carrying a pistol, and he appeals.
    Affirmed.
    Miller & Miller, of Athens, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of unlawfully carrying a pistol, and his punishment assessed at 60 days’ imprisonment in the county jail.

The first contention of appellant is that the evidence will not sustain a conviction. John Hill, John Ross, and Lillie Ross all testify that John Ross was working with an unbroken horse when appellant came walking along; that he stopped and began to assist Ross with the horse, and while doing so a pistol fell out of his pocket; that John Hill picked up the pistol and offered it to appellant, when appellant asked him to take care of it for him, as he (appellant) would go with John Ross to Franklin. John Hill testified that he carried the pistol to his home, and appellant afterwards came to his house and got it. This is certainly positive evidence that appellant had the pistol on that occasion; in fact, he so testifies himself, but says he had let his brother have the pistol to have it fixed; that his brother had neglected to do so, and, being over at his brother’s that morning, he was carrying the pistol back to his home; that it was unloaded, was broken, and would not shoot. It would be a question whether or. not the jury would believe his explanation of his possession on this occasion, and apparently they did not do so. The other witnesses present did not notice that the pistol was broken in any particular.

At appellant’s request the court instructed the jury:

“You are instructed that, if you believe from the evidence that the defendant, Sing Davis, was carrying a pistol from his brother’s home to his own home at the time complained of, and that he was proceeding on his way home along a route a person would usually or ordinarily travel in going from the place or home of George Davis to defendant’s home, you will acquit this defendant, and this although you may believe from the evidence that the defendant, while thus proceeding on his way home, stopped by at Ross’ place to assist in the managing of the wild horse.”

This presented the issue fairly and in language selected .by appellant; therefore it was unnecessary to give the other special charges on that issue 'requested by appellant.

Appellant also requested the court to instruct the jury: '

“I charge you, as a part of the law in this case, that if- you believe from the evidence -that the pistol was broken and it would not sboot, or that it was unloaded at the time named, you will acquit the defendant.”

The court did not err in refusing to give this special charge, for it is not the law of this state that, if one carries an unloaded pistol, he is guilty of no offense. He could very easily have cartridges in another pocket, and in a moment’s time could convert it into a loaded one. Had the appellant requested the court to instruct the jury that, if the pistol was broken, or so out of repair that it would not shoot and could not be fired, he should have done so.

But this is a misdemeanor conviction, and we can only pass on such questions as are properly raised in the trial court. No exception was reserved to the court’s charge, because he did not so instruct the jury in his main charge, although another exception to the charge was reserved, and that is that the charge as given was contradictory in its terms. This is not a correct construction of the charge, 'but, when read as a whole, its meaning is clear, and could .not have misled the jury.

If appellant’s contention, as made by his testimony alone, had been believed, of course he would not be guilty under the law, but the jury did not believe his explanation of his possession of the pistol, or as to its condition, and we cannot say, at this distance, they ought to have done so.

The judgment is affirmed.
      (gnmFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes