author: BROOKE, J.

text:
    SELLERS et al. v. GALVESTON, H. & S. A. RY. CO.
    (No. 365.)

    (Court of Civil Appeals of Texas. Beaumont.
    Dec. 11, 1918.
    Rehearing Denied Jan. 15, 1919.)
    1. Appeal and Error @=»968, 1045(3) — Jury <S=>97(4) — Challenge por Cause — Interest —Influence on Verdict — Discretion — —Harmless Error.
    Where a juror was an employé of a railroad which was a constituent of defendant railroad, and stated on his voir dire examination that a large verdict against defendant might affect his employment hut that he could rise above such influence and render a fair verdict, held, that overruling of challenge for cause was not error; the juror not sitting in the case.
    2. Appeal and Error <S£=»1056(4) — Error Cubed by Findings.
    In actions for injuries to passengers in automobile in crossing collision, exclusion of plaintiffs’ evidence to show that gong and whistle on railroad’s car were not so strong and could not be heard so far as bell and steam whistle in use on defendant’s steam locomotives, held not available error, in view of special finding of jury that gong was sufficient to give reasonable warning to persons using crossing.
    3. Railroads <9=o345(3) — Injuries at Crossing — Evidence—Support by Pleadings.
    In action against railroad for injuries to passengers in automobile struck at crossing by railroad’s motorcar, court properly overruled plaintiff’s motion to exclude evidence as to crossing bell maintained by railroad which pleaded contributory negligence.
    4. Trial <®=s>350(6) — Submission op Issue-Immateriality.
    In actions against railroad for injuries to passengers in automobile struck by car with gong and whistle sufficient to give reasonable warning, as jury found, court properly refused to submit issue requested by plaintiffs whether accident would have happened had car been equipped with different bell and whistle, as required in certain cases by Rev. St. 1911, art. 6564.
    5. Appeal and Error <§=1062(2) — Harmless Error — Special Findings — Effect of Findings by Jury.
    In action for injuries to passengers in automobile in collision with motorcar, where issue of negligence and liability were resolved for defendant, and issue of contributory negligence resolved against plaintiffs, court properly refused request that in answering special issues submitting issue of contributory negligence jury would not find plaintiffs negligent merely because driver of car was.
    6. Railroads <§=>327(12) — Injuries at Crossing — Contributory Negligence.
    Where passengers in automobile approaching railroad crossing were warned by bell that car or cars were approaching in time to have caused driver to stop, and also could have seen approaching car in time, they were negligent, so that railroad was not liable to them despite any negligence of motorman.
    7. Trial <§=3356(5) — Failure to Find on Issues — Immateriality.
    In actions against railroad for injuries in automobile in collision at crossing with car, where jury found, in answer to special issues, that plaintiffs were negligent, failure to find on other issues was immaterial, and did not preclude judgment-for defendant railroad.
    Appeal from District Court, Harris County ; J. D. Harvey, Judge.
    Consolidated actions by Mrs. Emma Sellers and others against the Galveston, Harrisburg & San Antonio Railway Company. From judgment for defendant, plaintiffs appeal.
    Affirmed.
    Jno. W. Parker and K. C. Barkley, both of Houston, for appellants.
    Lane, Wolters & Story and McMeans, Garrison & Pollard, all of Houston, for appellee.

      Writ of error denied by Supreme Court March 19,-1919.

   BROOKE, J.

A. G. Sellers, Mrs. Julia Sellers, and Mrs. Coma Sellers, were riding in an automobile owned and driven by R. L. Robinson, and in a collision between the automobile and a motorcar on the railway of the Galveston, Harrisburg & San Antonio Railway Company, at a public road crossing near El Buey, in Harris county, on May 8, 1915, A. G. Sellers was killed, and Mrs. Julia Sellers and Mrs. Coma Sellers were each injured. Mrs. Emma Sellers, as surviving wife, and Anita Kaleta Sellers, as surviving child, and J. C. Sellers and Julia Sellers, as surviving parents of A. G. Sellers, deceased, sued the Galveston, Harrisburg & San Antonio Railway Company for damages for his death. The number of the case is 67143. J. C. Sellers sued for the injuries to his wife, Mrs. Julia Sellers. The number of the case is 67268. J. K. Sellers sued for the injuries to his wife, Mrs. Coma Sellers. The number of the case is 67271. By agreement the three cases were consolidated and tried under the style and number of the Emma Sellers case, i The plaintiffs predicated their right of action upon a number of grounds of negligence, among them being:

(1) Failure to provide the motorcar with a bell of at least 30 pounds weight, and with a steam whistle, or a whistle that was adequate to give reasonable notice of the approach of the motorcar to crossings, in consequence whereof the statutory signals were not given of the approach of the motorcar to the crossing.

(2) Failure of the employés operating the motorcar to keep a proper lookout for persons upon or about to enter upon the crossing, and that had they done that they would have seen deceased and the other occupants of the automobile in time to have avoided the collision, or to have so reduced the speed as to have greatly lessened the force of the impact.

(3) Operating the motorcar at a great and excessive speed in approaching the crossing, and failure to have the motorcar under the control they should have had, and that a man of ordinary care would have had under the circumstances.

Defendant answered by general denial, and specially that the deceased and the other occupants of the automobile, including Robinson, the driver, were guilty of contributory negligence, specifying the facts of such negligence.

The case was tried on special issues and, on the answer returned, the court entered judgment for defendant. Plaintiffs objected to the method taken by the court to bring about a verdict, moved to set aside the verdict, and, the motion being overruled, filed a motion for new trial, which was overruled; the plaintiffs excepting to the action of the court, and perfecting their appeal to the Court of Civil Appeals for the First Supreme Judicial District, from which court the case has been duly transferred, and is now before us for disposition.

The assignments of error copied in this brief were made grounds for new trial in the motion filed therefor by plaintiffs, and at the end of each reference is made to the place in the record where the same may be found.

The first assignment of error calls in in question the action of the court as being error in not sustaining appellants’ challenge for cause of the juror E. A. Greenstein on his voir dire, as shown by bill of exception No. 1.

The proposition under this assignment is:

“The juror stating on his voir dire that he was in the employ of the Southern Pacific, and that the Texas & New Orleans Railroad, on which he was working, was one of the constituent lines of the Southern Pacific, the G., H. & S. A. being another; that the employes on the Texas & New Orleans had seniority rights which might result in their transfer to the G., H. & S. A.; and that he realized that a verdict for plaintiffs would in effect be a verdict against his employer, and that such a verdict might affect his employment on the G., H. & S. A.— the law implied a bias on his part in favor of his employer, or a prejudice against the plaintiffs, which disqualified him to sit as a juror in the case, and the court should have sustained the plaintiffs’ challenge of the said juror for cause.”

The counter propositions urged, are:

(1) The juror was not disqualified as a matter of law, and his answers to questions propounded to him upon his voir dire show that he was not disqualified as a matter of fact.

(2) Whether or not the juror was qualified was a matter intrusted to the sound discretion of the court; and, in the absence of an abuse of that discretion, the appellate court will not revise the ruling that the juror was not disqualified.

(3) Even if it be held that the court abused its discretion in overruling the plaintiffs’ challenge for cause, no error calculated to cause or probably causing the rendition of an improper judgment is shown, for the reason that the juror did not sit in the case. And the juror Look, whom plaintiffs accepted in his stead, was not shown to be disqualified; and, if he was objectionable to plaintiffs, no reasons were given, by plaintiffs’ counsel showing why he was objectionable.

The examination of this juror was as follows:

“Q. All I want to know, will the fact that you are working for the T. & N. O. and the suit is against the G., H. & S. A., will that influence your action one way or the other in finding a verdict? If it will, say so. A. No, sir.
‘‘Q. It will not? A. No, sir.
“Q. Then the mere fact that you are employed by the T. & N. O., and the G., H. & S. A. is a railroad company, and possibly has the same president and vice president, if that will cause yon to lean one way or the other, or I will ask you further, do you believe that you might be influenced one way or the other? A. No, sir.”

And again:

“Q. Suppose you were to render a $10,000 verdict in this case, or a $15,000 verdict in this case, for the plaintiffs, might that not affect your employment over on the G., H. & S. A.? A. Yes, sir; it might.
“Q. Well, now then, when you realize that, wouldn’t that fact, or might not that fact, influence you in reaching a verdict in this case? A. No, sir.
“Q. You think not? You would rise above it? A. Yes, sir.
“Q. You would be superior to all considerations of that sort? A. Yes, sir.”

After a careful examination, we are of the opinion that this assignment must be overruled. Wyres v. State, 74 Tex. Cr. R. 28, 166 S. W. 1150.

The second assignment of error challenges the action of the trial court in not admitting the evidence of the witnesses Singleton et al., offered by plaintiffs to show that the gong and whistle on the motorcar was not nearly so strong and could not be heard nearly so far as the 30-pound bell and steam whistle in use on the locomotive engines operated on defendant’s railway, and on the other railways of the state. The proposition under this assignment is:

“Assuming for the moment that the statute regarding bell and whistle on locomotives does not apply in whole or in part to motorcars, it was nevertheless the duty of defendant to provide the motorcar with bell and whistle that were sufficient to give reasonable notice of the approach of the motorcar to the public road crossings; and, inasmuch as the volume of the sound made by the gong and whistle used on the motorcar could not be shown by direct proof so that a jury could determine from such proof whether it was sufficient or not, the evidence offered by plaintiffs of comparison between the gong and the whistle on the motorcar, and the bell and whistle on locomotives in general use on the railroads of the state, should have been admitted. The question was one that could only be determined by the jury by comparison, and, as such, the^evidenee was admissible.”

On the contrary, it is contended:

“Whether the gong and whistle on 'the motorcar was as strong and could be heard as far as the boll and whistle used on locomotive steam engines was immaterial under the facts of this case, in view of the finding of the jury, to which appellants have not excepted, that the motorcar was provided with a gong and whistle sufficient to give reasonable warning to persons using or about to use the crossing of the approach of the motorcar thereto. The court therefore did not err in refusing to admit the testimony.”

The court submitted to the jury the following special issues:

(a) “Was the motorcar provided with a gong sufficient to give reasonable warning to persons using or about to use the said crossing of the approach of the motorcar thereto? Answer, ‘Yes,’ or ‘No.’ ”
(b) “Was the motorcar provided with a wnistle sufficient to give reasonable warning to persons using or about to use the said crossing of the approach of the motorcar thereto? Answer, ‘Yes,’ or ‘No.’ ”

Both of these special issues were answered in the affirmative by the jury- These findings are not attacked in any way by appellants in their brief. A careful examination persuades us to believe that this assignment must be overruled.

The third assignment is as follows:

“The court erred in overruling plaintiffs’ motion to exclude all the evidence relating to the crossing bell, because there was no pleading to authorize its admission, made at the conclusion of the evidence for both parties, as shown by their bill of exception No. 3.”

The proposition under this assignment is:

“The assignment is submitted as a proposition, with the additional statement that the, existence of the bell formed no part of plaintiffs’ case, and its presence' at the crossing was not developed by- plaintiffs in making out their case.”

On the' contrary, it is urged:

“Defendant having pleaded the contributory negligence of the occupants of the car as the proximate cause of their misfortune, any testimony tending to prove its allegations in this regard by showing that they knew of the approach of the motorcar was admissible; and this could be shown by proof that they were warned by the ringing of the crossing bell, as well as by proof that they were warned or knew of the approach of the motorcar in any other way.”

We will consider, in connection with this assignment, the fourteenth assignment, which is as follows:

“The court erred in refusing plaintiffs’ special request marked ‘A.’ ”

The proposition under this is:

“The statute regarding bell and whistle on locomotive engines applies to motorcars run upon railroads, and the plaintiffs were entitled, in view of the evidence, to have the jury make findings of fact which would bring their case within the operation of the statute, as they sought to do by requesting submission of the special issue.” •

On ⅛¾ contrary, it is contended:

“The jury having found, in answer to special issues III and Ilia, that the motorcar was provided with a gong and whistle sufficient to give reasonable warning to persons using or about to use the crossing of the approach of the motorcar, which findings the appellants do not controvert, the further inquiry, in the absence of any statutory requirement, of whether if the motorcar had been provided with a different kind of a whistle and a different kind of a bell, which, if they had been sounded 80 rods from the crossing, etc., was wholly immaterial.”

And it is further contended:

“The statute requiring ‘a bell of at least thirty pounds weight’ and a steam whistle to be ‘placed on each locomotive engine,’ applied to steam locomotives drawing trains, and not to motorcars using gasoline power, which came into existence long after the statute was passed (1883); and the courts will not, by judicial construction, extend the statutes to cases not in the legislative mind, and not embraced in the act, by fair interpretation of the legislative will, at the time of its adoption.”

The statute cited and relied upon by appellants is, in part, as follows:

“Art. 6564. Bell and Steam Whistle; Duty as to. — A bell of at least thirty pounds weight and a steam whistle shall be placed on each locomotive engine, and the whistle shall be blown and the bell rung at the distance of at least eighty rods from the place where the railroad shall cross any public .road or street, and such boll shall be kept ringing until it shall have crossed such public road, or stopped; and each locomotive engine approaching a place whore two lines of railway cross each other, shall, before reaching such railway crossing, be brought to a full stop; and any engineer having charge of such engine, and neglecting to comply with any of the provisions of this article, shall be punished for such neglect as provided in the Penal Code. * * * ” Rev. St. 1911.

Under these assignments, we will call attention to Birmingham, etc., Co. v. Ozbum, 4 Ala. App. 399, 56 South. 599; Birmingham, etc., Co. v. Green, 4 Ala. App. 417, 58 South. 801; Fallon v. West End, etc., Ry. Co., 171 Mass. 249, 50 N. E. 536; Stranahan v. Sea View Ry. Co., 84 N. Y. 314; Henson v. Williamsville, G. & St. L. Ry. Co., 110 Mo. App. 595, 85 S. W. 597; Jarvis v. Hitch, 161 Ind. 217, 67 N. E. 1057; Dean v. State, 149 Ala. 34, 43 South. 24; Commonwealth v. Ry. Co., 141 Ky. 583, 133 S. W. 230; Indianapolis, etc., Ry. v. Andis, 33 Ind. App. 625, 72 N. E. 145. In the Birmingham v. Ozburn Case, supra, damages were sought to be recovered against the appellant, in an action predicated on the failure of that company to give the statutory warnings as the car approached a crossing. It was contended that article 5473 of the Code of Alabama Imposed the duty on the engineer or other person having control of the running of the locomotive on any railroad of blowing the whistle and sounding the bell. The issue in the case was whether or not that statute and its requirements could be regarded as applying to the motorman or conductor of a street or interurban electric car. The court, in holding that said statute was not applicable, used this language:

“That statute made provision for duties to be performed in the specific case of ‘the engineer, or other person having control of the running of locomotive on any railroad.’ At the date of the original enactment, electricity was not in use as a motive power on railroads, and common usage had adapted the word ‘locomotive’ to designate a steam engine designed and adapted to travel on a railroad. The word still retains that meaning. Century Dictionary. In common usage, it is not understood to describe or include an electric street car. To give that import to the word as used in that statute would amount to imputing to the statute a meaning which it does not express. Besides, the regulations prescribed show that the operators referred to were different from those of a modern street or interurban railroad. The words of the statute must be understood as used in reference to the subject-matter in the mind of the Legislature. A statute dealing with the general subject of railroads may apply to a railroad of a different type from that in nso at the time of its enactment; but the fact that a statute prescribing duties to be performed in the operation of railroads was enacted in the interest of public safety is not enough to make it applicable to the operation of electric street railroads, when its provisions make it plain that the Legislature had it in mind only to establish requirements to be observed in running steam engines on railroads.”

In this opinion it is held that it is incumbent on one operating a street or interurban railroad to- exercise a proper degree of care with reference to giving notice and sounding warnings on its approach to crossings.

In disposing of the case of Birmingham, etc., Co. v. Green, supra, the court adopts the opinion rendered in the case of Ry. Co. v. Ozburn, thereby approving said opinion, and in disposing of that case holds as follows:

“Wo have again, on the present appeal, carefully considered the applicability of this stathte (5473) to a modern street or interurban railway, operating cars propelled by electric power, through the streets of a city or town into adjacent territory, and have given close attention to the cases cited by the appellee, and to the argument of counsel contained in brief, and were aided, also, by oral argument; but we find nothing to convince us that the reasoning and distinctions drawn in Ozbum’s Case, showing the inapplicability of this statute to eases of this kind, are incorrect.
“While it is true that those sections embraced in that article of the Code containing ‘regulations affecting public safety’ will be generally extended to new things, which the language of the q,ct is sufficient, reasonably and fairly construed, to comprehend, for the purpose of promoting the real intention of the enactments, as was the case, for example, in reference to section 5474 (Birmingham Min. R. R. Co. v. Jacobs, 92 Ala. 187, 9 South. 320, 12 L. R. A. 830; L. & N. R. R. Co. v. Anchors, 114 Ala. 492, 22 South. 279, 62 Am. St. Rep. 116), yet our courts cannot, with a due regard to the unquestioned and well-recognized rules of statutory construction, stretch those statutes so as to make them apply to changed conditions, even though we give full significance to the knowledge that the enactment is a regulation affecting public safety, when the plain language of the statute itself is such as to make it totally inapplicable to those new things resulting from changed conditions and different modes of travel. The intent of the particular statute is first to be sought in the language of the statute itself. 2 Lewis’ Sutherland, Statutory Construction (2d Ed.) c. 13, § 366; United States v. Goldenburg, 168 U. S. 95, 18 Sup. Ct. 3, 42 L. Ed. 394. To hold that section 5473 is applicable to this case would be for us to say that a street car, in its popular sense, the plain sense in which people generally understand it, is a locomotive (Harrison v. State, 102 Ala. 170, 15 South. 563); and that the person in control of its operation through the streets of a city, town, or village must be guilty of negligence for a failure to blow the whistle or ring the bell one-quarter of a mile before reaching any public road crossing or regular stopping place, notwithstanding the person in control would thereby be required to be giving signals for one crossing before it reached and stopped at several other intervening crossings within the one-quarter of a mile. This would not be giving to the statute a sensible application, but one leading to an unjust and absurd conclusion, which, if possible, is to be avoided in construing legislative intention in the interpretation of statutes. In re Chapman, Petitioner, 166 U. S. 661, 17 Sup. Ct. 677, 41 L. Ed. 1154.
“If new conditions have arisen since the passage of the statute that have not been provided for, this would not justify a judicial addition to the language of the statute itself, so as to make it apply to the new conditions or contingencies, nor justify a tortious construction of the language used, to make the statute apply to things or conditions plainly not comprehended within the terms of the statute, which would lead to an absurdity and injustice in the construction or application given. What we have said in the case of Ozburn, supra, fully covers the subject, and we are unwilling to make any change in the rule there announced.”

Besides, the court, in its general instructions to the jury, preceding the submission of special issues, charged them as follows:

“The failure of a railroad company to ring the bell or blow the whistle on the approach of the train to a public crossing is not negligence to a person or persons struck by a train at a crossing who knew or had been warned that a train was approaching the crossing, and if the party or parties approaching the crossing had knowledge that the train or car was approaching, and attempted to cross the railroad track, then it is immaterial, so far as the defendant is concerned, whether the whistle was blown or bell rung before the said train or ear reached the crossing; the law being that, if the person approaching the crossing knew that the train or car was approaching the crossing, then no duty rested upon the engineer or motorman to ring the bell or blow the whistle to warn said party or parties that said train or car was approaching the crossing.”

This charge was not excepted to by the appellants, and they must therefore be held to have approved of it. We find no error in the matters referred to, and these assignments are overruled.

The sixteenth assignment of error complains of the court’s refusing plaintiffs’ spe*-cial request marked “G” ; and the proposition under this assignment is:

“The evidence conclusively showing that those in the automobile were guests of R. L. Robinson, who owned and drove it, and the defendant’s answer claiming that plaintiffs could not recover, not only because of the negligence of those for whose death and injury they sued, but because of the negligence of R. L. Robinson, the driver of the automobile, Robinson’s negligence, if any, not being imputable to those in the automobile with him, under such circumstances, the plaintiffs were entitled to have the jury properly instructed on the point, and the court should have given the special request asked by them.”

This special request was:

“Plaintiffs request the court to instruct the jury that, in answering the special issues submitting the question of the contributory negligence of Mrs. Julia Sellers, Mrs. Coma Sellers, and A. G. Sellers, you will not find them guilty of such negligence simply because you may believe R. L. Robinson, the driver of the car, was guilty of such negligence; but you will determine the question of their contributory negligence by what they did and did not do under all the circumstances of the case.”

On the contrary, it is contended:

“The jury was not called upon to pass upon the question of the negligence vel non of Mrs. Julia Sellers, Mrs. Coma Sellers, and A. G. Sellers, hut to only find facts in answer to special issues, from which the court could determine whether they were guilty of, or free from, contributory negligence. It would have been out of place, therefore, for the court to have given the special charge in question, telling them under what circumstances they would be justified in finding them not guilty of negligence or contributory negligence.”

It is further contended that it was not error to refuse the special charge in question, for the further reason that the case was submitted to the jury on special issues, and among them was one calling for a fact finding bearing upon the question of the contributory negligence of R. L. Robinson, the driver of the automobile, separately from others, calling for £p.ct findings bearing upon the issue of the contributory negligence of the other occupants; and there was nothing in any of the special issues or the charge as a whole to lead the jury to believe that they should find facts establishing the contributory negligence of such other occupants simply b&cause they believed that 'Robinson, the driver of the car, was himself guilty of contributory negligence.

If the jury had found facts, which they did not do, from which the court would have been justified in finding, based thereon, that the defendant was guilty of negligence in failing to have the car equipped with a 30-pound bell and a steam whistle, nevertheless plaintiffs would not have been entitled to a recovery, because of the finding of the jury that the occupants of the car were guilty of contributory, negligence. In this connection, attention is called to recitals in the judgment, namely:

“It is the opinion o£ the court that the issue of defendant’s negligence as a proximate cause of the injuries and damages for which plaintiffs in said cause sue, and the issue of defendant’s liability therefor, were, by said verdict, resolved in favor of the defendant, and that the issue of plaintiffs’ contributory negligence was by said verdict resolved against the plaintiffs,” etc.

There was no error shown to have been committed by the court in the matter complained of, and therefore the assignment is overruled.

The fifth assignment complains:

“The court erred in requiring the jury to return the verdict herein, under the circumstances he did, as shown in the special instructions to that effect. The jury had reported on one occasion, and probably on two occasions, that they could not agree on a verdict, and asked to be discharged. The court, after retiring the jury upon such report or reports with instructions to further consider of their verdict, and after the jury had been out about 24 hours, consulted counsel for plaintiffs and defendant with a view to having the jury return a verdict as to the special issues upon which they could agree. Gounsel for plaintiffs objected to that course being taken, and, upon being shown the court’s special instructions, objected to the same being read to the jury, or to the jury being required to return a verdict as therein directed, or any verdict other than one disposing of the material issues submitted to them in the court’s main charge; but the court called the jury before him and read to them the said instructions, and the jury thereafter returned the verdict, which shows that the jury could not and did not agree on the issues material to the defendant’s defense. The verdict is too incomplete to form the basis of a judgment, and show’s to have been the result of insufficient deliberation, due to the court requiring them to return a verdict at the time he did, or to irreconcilable differences, and in either case ought to be set aside.”

This assignment is submitted as a proposition. The sixth assignment will be also considered in this connection, and is as follows:

“The court erred in receiving the verdict of the jury, because incomplete and insufficient to support a judgment, in that it wholly failed to dispose of the issues material to the plaintiffs’ cause of action, and the defendant’s defense, and should have discharged the jury and declared a mistrial.”

The proposition under this assignment is:

“It goes without saying that a verdict which does not dispose of the material issues of a case is no verdict at all. In this case the jury disagreed as to two of the special issues, an affirmative finding of either of which would have entitled plaintiffs to a judgment; and they disagreed as to every issue presenting to them the question of contributory negligence. Plaintiffs were entitled to have every one of their grounds of negligence passed upon, and they could not be denied judgment because of contributory negligence on the part of those in whose right they sued in the absence of the issues presenting the question of them contributory negligence being passed upon by the jury, which in every instance it failed to do.”

It was agreed that the following should be in the record:

“It is agreed between the counsel for plaintiffs and defendant that the following is a true copy of the charge read to the jury in response to which they returned the verdict found in the record, and which, by oversight, was omitted by the clerk in making up the record in this case, the same to be considered as though copied in I the record: |
“ ‘Gentlemen of the Jury: You having been considering of your verdict approximately 24 hours, and having now reported to the court that you have been unable to agree upon a verdict on all the special issues submitted to you, and that there is no reasonable probability of your agreeing thereon, I do now instruct you to retire to the jury room and determine whether you can agree upon verdict 'on any of the special issues submitted to you. If you can agree upon some of such issues or questions, and cannot agree upon verdict upon others, then, in such event, you will write your answer to each of the special issues to which you agree upon verdict; and to such as you do not agree to a verdict upon, you will write. “We cannot agree.” Having done this, you will return same into court.’ ”

It is argued that it was not an abuse of the power or discretion of the court to require the jury, after they had been deliberating some 24 hours, to return a verdict on such of the special issues as they could agree upon, for the reason that it was within the power of the court, after inspecting the answers, to declare a mistrial in case the answers returned were not of such nature as the court could therefrom render judgment for either party; but if the answers so returned were such that the court could determine therefrom that the occupants of the car were guilty of contributory negligence, precluding a recovery, then it was immaterial whether the jury answered the special issues bearing upon the defendant’s negligence, for had they answered such questions, and in so doing had found facts justifying the court in concluding that the defendant had been guilty of negligence, the judgment, nevertheless, must have been for defendant. And it is further contended that the jury answered a sufficient number of special issues to enable the court to declare the legal effect thereof to be that the occupants of the automobile were guilty of contributory negligence, and, that being true, the failure of the jury to answer questions bearing upon the negligence of the defendant became wholly immaterial, for the judgment mtust have been against the plaintiffs, even if the jury had found that the defendant was negligent.

The following questions were answered by the jury in the affirmative:

(a) That the motorcar was provided with a gong, sufficient to give reasonable warning to parties using or about to use the said crossing of the approach of the motorcar thereto.

(b) That the motorcar was provided with a whistle sufficient to give reasonable warning to parties using or about to use the said crossing of the approach of the motorcar thereto.

(c) That the motorman sounded the whistle and gong at such a -distance from the crossing as to give reasonable notice to parties using or about to use the crossing of the approach of the motorcar thereto.

(d) That the motorman saw the automobile and those in the automobile, and realized that those in the automobile were exposed to the peril of being killed or injured in a collision between the motorcar and automobile.

(e) That the motorman did not see the automobile and those in the automobile and realize their peril in time, by the use of the means at his command, to have so slackened the; speed of the motorcar as to have lessened the injury of those in the automobil^, or to give them such warning as would have enabled them to have avoided contact with the motorcar.

(f) That R. L. Robinson controlled the running of the automobile.

(g) That the deceased, A. G. Sellers, did not exercise any control over the running of the automobile, and that Mrs. Coma Sellers did not exercise any control over the running of the automobile, and that A. G. Sellers, Mrs. Julia Sellers, and Mrs. Coma Sellers were guests of R. L. Robinson, the driver of the automobile.

(h) That R. L. Robinson, the driver of the car, was warned of the approach of the motorcar to the crossing in time to have stopped the automobile before he reached the crossing.

(i) That the plaintiffs Mrs. Julia Sellers, Mrs. Coma Sellers, and the deceased, A. G. Sellers, were warned by the ringing of the bell that a motorcar or cars were approaching the crossing in time to have caused the driver, R- L. Robinson, by warning or notifying him to have stopped the automobile before it reached the crossing.

(j) That Mrs. Julia Sellers, Mrs. Coma Sellers, and A. G. Sellers did hear the crossing bell, notifying the occupants of the automobile of the approach of the motorcar in time to have notified R. L. Robinson, the driver of the car, of the approach of said motorcar to the crossing in time for him to have stopped his automobile before said motorcar reached the crossing.

(k) That the plaintiffs Mrs. Julia Sellers, Mrs. Coma Sellers, and A. G. Sellers, deceased, could have seen the approach of the motorcar to the crossing a distance of 470 feet west of the crossing, when the automobile was within 75 to 100 feet of the crossing.

(l) That R. L. Robinson and the other occupants of said car, by the exercise of ordinary care on their part, could have discovered the approach of said motorcar after hearing the crossing signal, in time for the ear to have been stopped and the accident prevented.

(m) That the occupants of the automobile, before starting out on the journey to La Porte or Sylvan Beach, agreed to go to said place in the automobile of R. L. Robinson, for the purpose of jointly attending a picnic.

The following recital is found in the judgment, in this case:

“ * * * Retired to consider of their verdict, and after due consideration thereon, on this the 18th day of May, A. D. 1917, returned into open court their verdict on the special issues submitted by the court, which verdict of the jury was received by the court and filed by order of the court; thereupon came on to be heard defendant’s motion to enter judgment in each of said causes for the defendant, and the same having been heard and considered, it is the opinion of the court that the issue of defendant’s negligence as a proximate cause of the injuries and damages for which the plaintiffs in said causes sue, and the issue of defendant’s ■liability therefor, were, by the said verdict, resolved in favor of the defendant, and that the issue of plaintiffs’ contributory negligence was ■by the said verdict resolved against the plaintiffs, and that the defendant in each of said causes is entitled to a judgment to be entered on said special issues in its favor. It is therefore * ⅜ * v

We call attention to the cases of Coons v. Lain, 168 S. W. 981; Sears v. Sears, 45 Tex. 557; O’Brien v. Hilburn, 22 Tex. 616; Kelley v. Ward, 94 Tex. 289, 60 S. W. 311.

A careful reading of the record will show that, had the jury returned answers to 'all the questions propounded upon the issue of the defendant’s negligence, the judgment nevertheless must have been for the defendant because of the findings which justified the court in concluding that the occupants of the automobile were guilty of contributory negligence; and we will say that had the jury answered every question propounded upon the issue of defendant’s negligence, and in so doing had answered (1) that the motorman, in approaching the crossing in question, ran at a great and excessive speed, without having his car under the control that an ordinarily prudent man should have had, and was negligent in operating the ear at such speed; (2) that in approaching the crossing, the motorman did not keep a lookout for persons upon or about to enter upon the crossing that a man of ordinary prudence would have done under similar circumstances, and that such failure was negligence; and yet have found, as they did find, facts from which the court could pronounce the occupants of the automobile guilty of contributory negligence — such affirmative findings of negligence upon the part of the defendant would not overcome the findings of contributory negligence upon the part of the occupants of the car and justify a judgment in their favor. To state the proposition is to answer it, in view, of the well-known rule of law above referred to, that contributory negligence of a plaintiff absolutely bars a recovery. The term “contributory” is a relative term, signifying that there was negligence upon the part of both parties; hence there can be no contributory negligence upon the part of the plaintiff, in the absence of negligence upon the part of the defendant.

In our opinion, the only issues material to the plaintiffs’ cause of action that was submitted to the jury and not answered were embraced in paragraphs I and II of the court’s charge. All the other issues which the jury failed to answer were material to the defendant’s defense; and the failure of the jury to answer them, while it might, under different circumstances, have afforded ground for defendant’s complaint, is a matter with which the plaintiffs are in no way concerned.

The jury found, in answer to special issues bearing upon the contributory negligence of the occupants of the automobile:

“That the plaintiffs Mrs. Julia Sellers, Mrs. Coma Sellers, and the deceased, A. 6. Sellers, were warned by the ringing of the bell that a motorcar or cars were approaching the crossing in time to have caused the driver, R. L. Robinson, by warning or notifying him, to have stopped the automobile before it reached the crossing; that Mrs. Julia Sellers, Mrs. Coma Sellers, and A. G. Sellers did hear the crossing bell, notifying the occupants of the automobile of the approach of the motorcar in time to have notified R. L. Robinson, the driver of the car, of the approach of said motorcar to the crossing in time for him to have stopped his automobile before said motorcar reached the crossing; that the plaintiffs Mrs. Julia Sellers, Mrs. Coma Sellers, and A. G. Sellers, deceased, could have seen the approach of the motorcar to the crossing a distance of 470 feet west of the crossing, when the automobile was within 75 to 100 feet of the crossing; that R. L. Robinson and the other occupants of said car, by the exercise of ordinary care on their part, could have discovered the approach of said motorcar, after hearing the crossing signal, in time for the car to have been stopped and the accident prevented.”

It is the opinion of the court that no judgment other than the one rendered for the defendant could properly have been rendered, in view of these findings, and the assignments are therefore overruled.

Having carefully considered and overruled the remaining assignments in appellants’ brief, in our mind we cannot doubt that the court was warranted in entering the judgment as above set out; and, upon a careful consideration, we find no error in the action of the court in the matters complained of, and therefore the judgment of the court below is affirmed.
      (Ss»Por other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      ©=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: GREER, J.

license: Public Domain

text:
    BYRNES et al. v. CURTIN et al.
    (No. 362.)

    (Court of Civil Appeals of Texas. Beaumont.
    Jan. 3, 1919.
    Rehearing Denied Jan. 15, 1919.)
    1. Wills <©=>386 — Review — Questions of Fact.
    In a proceeding for the probate of a will, where evidence, if competent, is ample to sustain a special finding by the jury that testator was of sound mind at the time he signed the will, the verdict will not be disturbed on appeal.
    2. Witnesses <©=>140(6) — Competency of Devisee — Transactions with Decedent.
    In view of Rev. St. 1911, art. 3688, declaring that no person shall be incompetent to testify on account of interest, held that under article 3690 as to testimony relating to transaction with a decedent, a devisee under a will, probate of which was contested for want of capacity by the heirs, may testify as to conversations and transactions with the testator.
    3. Witnesses <©=>130 — Competency.
    Where an executor renounced his position as such, held, in view of Rev. St. 1911, art. 3688, that he was competent, despite article 3690, to testify as to conversations showing the testator’s capacity, etc., for no judgment could be rendered against him in his representative capacity.
    4. Wiles <©=>384 — Probate — Review — Harmless Error.
    Where' the testator’s capacity was denied, -sustaining of objections to a question to a witness as to her opinion of the capacity of the testator was harmless, where the record showed the witness stated in the presence of the jury that in her opinion the testator did not have -capacity.
    5. Wills <©=>384 — Proceeding for Probate —Instruction.
    Where contestants denied testator’s capacity and the court submitted the question wheth-er the testator was of sufficiently sound mind to understand his acts, refusal of charges as to mentality which a person must have to execute a will held not error; for it must be presumed that the jury knew what mentality' was necessary for them to answer the question.
    Appeal from District Court, Harris County; Henry J. Dannenbaum, Judge.
    Application by H. M. Curtin for the probate ■of the will of T. E. Byrnes, opposed by Dennis Byrnes and another. After appeal to the district court from a judgment refusing probate, the proponent H. M. Curtin filed an amended original petition,’ in which he renounced the appointment of executor and prayed that Mrs. Bertha A. Forest be allowed to make herself a party plaintiff and prosecute the case alone. On the petition filed by Mrs. Forest the will was admitted to probate, and contestants appeal.
    Affirmed.
    I. F. Goldenhom, of Jersey City, N. J., and Cooper & Merrill and Cole & Cole, all of Houston, for appellants.
    A. R. & W. P. Hamblen and Baker, Botts, Parker & Garwood, all of Houston, for ap-pellees.

      Writ of error granted by Supreme Court March 19, 1919.

   GREER, J.

This case began in the probate court of Harris county, by an application filed February 21, 1916, by I-I. M. Curtin, alleging, in substance, that T. E. Byrnes was a resident citizen of Harris county, Tex., and died in Houston on the 19th day of February, 1916, leaving a written will, which was offered with the application for probate; second, that he left an estate of the probable value of $50,000, situated in Harris county, Tex., and that the will appointed the applicant as executor, independent of the probate court, without bond, and that the applicant was not disqualified from accepting said trust; prays for citation and for the will to be admitted to probate, and that he be appointed independent executor of said will, without bond, and for general and special relief.

On June 1, 1916, Mrs. Eliza Barron, a feme sole, joined by her brother, Dennis Byrnes, filed a formal contest to the probation of said will, and alleged, in substance, that the deceased, T. E. Byrnes, at the tiine of the making of said will, was not of sound mind and disposing memory; second, that at the time of the making of said will the said Byrnes was without sufficient control of his mental faculties to have testamentary capacity, and was wholly incapable of making and executing a will with the solemnities and formalities required by law; third, that the said Byrnes, on the 19th day of December, 1915, the date of said will, was in dire extremities, and suffering from a physical illness of such a character as to render him incapable of making and executing a formal will, and at said time he was infirm and aged, and was then suffering from a disease of a character that rendered it extremely doubtful whether life would last more than a few ininutes at any time, and on account of such physical conditions, brought about by such disease, he was wholly incapable of kno<wing and understanding the extent of his property, the persons entitled to his bounty, or to even consider the same, and was wholly incapable of understanding the contents of any instrument or the probable effect of any of' the 'conditions of any instrument, and if he executed such purported will, then such act was wholly without knowledge on the part of said T. E. Byrnes of its contents, or the legal purposes contemplated thereby; and, fourth, that the contestants are brother and sister, respectively, of the said T. E. Byrnes, and that the said T. E. Byrnes departed this life without any heirs at law other than brothers and sisters.

On this pleading the case was tried in the probate court of Harris county, and resulted in a judgment refusing to probate the will. An appeal was duly perfected to the district court of Harris county, where, after a lengthy trial before the jury, it resulted in a judgment in favor of the application probating the will. The will is dated on the 19th day of December, 1916, and has two subscribing witnesses, Chas. E. Bruhl and Nick D’Amico. The will, in substance, in the second paragraph, says:

“I give, demise and bequeath to my sister, Mrs. Bertha A. Forest, all property, real, personal, and mixed, of every kind, character and description of which I may die seized or possessed”

■ — and the third paragraph of the will, without quoting it in full, in the case of the death of Mrs. Bertha A. Forest, devises the property to her children and her grandchildren; and the fourth paragraph, without quoting it in full, provides that in case of the death of either of the grandchildren and of Mrs. Forest before the death of the devisor, then the survivors of the children and of such grandchildren shall take share and share alike. The fifth paragraph appoints H. M. Curtin, of Houston, Tex., “as executor of this my last will and testament, without bond, and I desire no other or further proceedings be taken or-had in any probate court, other than the proving of this .will, and the filing of an inventory of my said property.”

After the case was appealed to the district court of Harris county, the contestants filed, on the 1st day of February, 1917, their first amended objections and opposition to the probation of the will. This pleading does not differ materially from the original protest or contest, except that in paragraph No. 5 it alleges, substantially, that H. M. Curtin was the confidential adviser of Thomas E. Byrnes, and, standing in such attitude, he managed and controlled all of his property, and had great influence over him, and largely dominated and influenced him-in his actions, and had done so for many years, and did do so in the preparation and execution of the will.

In the trial in the district court, H. M. Curtin, on February 5, 1917, filed what is denominated a first amended original petition, the sum and substance of which is that he renounces the appointment of executor in the will, denying the allegations of his having influenced the deceased in signing the will, and prays that evidence be heard on this issue, and that Mrs. Bertha A. Forest be allowed to make herself a party plaintiff in the cause and prosecute the case alone.

On February. 6, 1917, Mrs. Bertha A. Forest filed her petition, praying to be made a party to the suit, alleging substantially all that had been alleged about the death and the execution of the will, alleging that she was the sole devisee in the will, and praying that it 'be probated as the last will and testament of the deceased, Thomas E. Byrnes. She denies all the allegations made in the amended petition filed by the contestants. On these pleadings, the case went to trial in the district court.

On the trial in the district court there was no evidence offered, nor was any charge asked or given with reference to any undue influence exercised by Curtin over the deceased. 'That issue was therefore not submitted to the jury. The case was submitted to the jury on special issues. The court’s charge was, in substance, that the jury were the exclusive judges of the weight of the evidence, and the credibility of the witnesses* and that the burden of proof was upon the proponent, Mrs. Bertha A. Forest, to show by a preponderance of the evidence the affirmative of the special issues submitted. Special issue No, 1 was:

“Did or did not Thomas E. Byrnes, at the time the purported will was executed, have mind and memory sufficiently sound to enable him to know and understand what he was doing and tho effect of his act? Answer ‘He did,’ or ‘He did not,’ as you find the fact to be.
“And if you have answered the foregoing special issue No. 1 in the affirmative, and ¡only in such event, then you will answer — ■
“Special issue No. 2: Did or did not Thomas E. Byrnes, at the time he signed the purported will, know the contents and effect thereof? Answer ‘He did,’ or ‘He did not,’ according as you find the fact to be.”

The jury, on April 10, 1917, brought in the following verdict:

“We, the jury, find to special issue No.. 1, ‘He did;’ to special issue No. 2, ‘He did.’ ”

On motion duly made, the judgment of the court was rendered probating the wilb

Findings of Fact.

We find the undisputed facts in this case to be: First, H. M. Curtin, on the night of the 19th of December, 1915, was requested by Mr. Byrnes, the deceased, to read him the will, which he, Curtin, had prepared; -second, that during the reading of the will Mr. Byrnes asked several questions about the will; third, Mr. Byrnes then signed the will with his own hand, and requested the two subscribing witnesses to sign the same as witnesses; fourth, that Mr. Byrnes lived just two months from that date until his death, namely, the 19th day of February, 1916.

If the evidence of H. M. Curtin was legally admitted, then the undisputed facts would further be that he, Curtin, was for many years the confidential agent of Mr. Byrnes, and that several weeks before the 19th day of December, 1915, he was requested by Mr. Byrnes to write his will, he giving him all the necessary data to prepare the will; that the will had been prepared for several days before the 19th of December, and. it was written in strict accordance with Mr. Byrnes’ dictation.

We find the further facts undisputed that after the 19th of December, 1915, Mr. Byrnes requested Mr. Curtin to destroy a former will which lie had made, and also some deeds, and that he regained his health to such an extent that he wasi no longer in danger of immediate death; that his physical condition was practically as good, up to a few days before his death, as it had been just prior to the 19th of December.

So far as the balance of the evidence is concerned, it is conflicting, and, as is stated by counsel for the appellant, the jury would have been warranted in finding either way. There were many witnesses who testified as to Mr. Byrnes’ condition on the night of the -19th of December, 1915, each witness expressing his opinion as to the mental capacity of Mr. Byrnes, but it will be noted that none of these witnesses, except Nick D’Amico, himself, Mr. Curtin, and Dr. Bruhl, were present- and gave testimony as to the mental condition of Mr. Byrnes at the time the will was read to him, and at the time he signed same, and one of these was the attending doctor, and the only one entitled to an expert opinion. The evidence of all of the other witnesses as to his mental or physical condition had reference to a time prior to the signing of the will. The evidence is ample to sustain the verdict, and we, therefore, do not feel justified in disturbing the same, unless we would be compelled to do so under the objection of the appellant’s counsel to the testimony of Mrs. Forest, taken by deposition, and unless the court erred in sustaining objection to the testimony of Minnie D’Amico as to her opinion of the mentality of Mr. Byrnes on that night; or in permitting Curtin to testify, over objection, he being temporary administrator. There are 25 assignments to the admission of the testimony of Mrs. Forest, all of which we will consider together, because they all reach the same conclusion.

Article 3690 of the Revised Statutes is relied on as prohibiting the testimony of Mrs. Forest and Mr. Curtin. If this were a suit between the heirs as such, or against the administrator as such, then clearly the testimony would not be admissible; that is to say, if the heirs were litigatng over, not the probation of the will, but the contents of the will, as to what it meant, the testimony would not be admissible. As we view it, this statute is, in effect, an amendment to or limitation upon article 3688, and should be strictly construed. Article 3688 provides that no person shall be incompetent to testify on account of color, nor because he is a party to a suit or proceeding, or interested in the issue tried. In other words, any party to a suit, no matter what his interest is, is a competent witness to any matter pertinent to the issue, unless clearly prohibited by the language of article 3690. The Legislature, for some reason, did not see fit to put into this article the word “devisees.” This, therefore, being an action by the devisee to probate a will, or, if you please, an action by the heirs against the devisee to prevent the probation of a will, does not come within the inhibited terms of the statute. An heir is a party who inherits. A devisee is a party who receives a gift. The title of an heir is cast on him by law. The title of a devisee is given to him by the act of the party devising the property. It, therefore, cannot be claimed that the Legislature intended to include devisees in its prohibition, and, not having done so, we do not feel that this court is warranted in writing into the statute something that the Legislature did not see fit to put in it. Believing, therefore, that article 3690 does not apply to a devisee in a will, we do not believe that the court erred in permitting the testimony of Mrs. Forest to the conversations and transactions that she had with her deceased brother, the devisor in the will. All of these assignments are therefore overruled.

The next question is raised by a proper assignment of error, to the effect that H. M. Curtin’s testimony ought not to have been admitted in evidence, because of this statute, he being temporary administrator of the estate. Mr. Curtin, it is true, was a party, technically speaking, to the action, but when he renounced the executorship, and Mrs. Forest was substituted as plaintiff, he was no longer either a necessary or proper party to the suit. But aside from this, the statute prohibits an administrator from testifying where the judgment to be rendered is for or against him as such administrator. In this case, the only judgment to be rendered was that the will should or should not be probated. It was in no sense a judgment against an administrator. If the contest in this case hád been over a debt due by the estate, which the administrator disallowed, then the -judgment to be rendered would be against him as such administrator, or in his favor as such administrator, in which event the statute would have prohibited him from testifying. We, therefore, do not thnk that the testimony of H. M. Curtin was illegal, and the court did not err in allowing him to testify. These assignments are overruled.

The remaining question to be considered-is whether or not the court erred in refusing to allow Minnie D’Amico and the other witnesses from giving their opinions as to the mental condition of Mr. Byrnes on the night of the 19th of December, 1915, the night on which he signed the will. We understand this objection was sustained, but it seems to us that the error, if any, is cured, because in the statement of facts there occurs in each instance, in substance, the following: Minnie D’Amico says:

“In my opinion Mr. Byrnes didn’t have any mind that night. He had no mind at all that night,” and so on.

Even if the court did sustain the objection, nevertheless the question was answered, and the jury had the -benefit of it, and the jury having decided that the devisor was of sound mind at the time he signed the will, we cannot disturb the.verdict.

We do not think that the court erred in refusing the special charges asked by the plaintiff, because the law does not require the trial judge to define the state of mentality necessary for a party to be possessed of at the time of the execution of the will. The jury was the judge of whether or not he had sound mind at that time, and the court asked them the direct question. Giving to the jury the credit of ordinary intelligence, we must presume that they knew what mentality was necessary for them to answer the question. There being no error in the charge, and none in the admission of evidence, or in the exclusion of the evidence, and the jury having found that the devisor was of sound mind at the time he signed the will, the judgment is affirmed.
      <§=3For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WILLSON, C. J.

text:
    BILLINGSLEY v. TEXAS MIDLAND R. R.
    (No. 2066.)
    (Court of Civil Appeals of Texas. Texarkana.
    Jan. 9, 1919.)
    1. Appeal and Error <§=>564(5) — Statement oe Pacts — Time por Filins.
    Document delivered to clerk of court on appeal will not be considered as a statement of facts, where not filed by plaintiff in error in the court below within 90 days from the date the citation in error was served, 'as required by Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 1608, 2073.
    2. Appeal and Error <§=564(5) — Absence op .Statement op Facts — Extent op Review.,
    There being no statement of facts which can be considered as^such, the court, on appeal cannot determine whether there is merit in complaint that trial court erred in giving and refusing instructions, and judgment will be affirmed, where not attacked on any other ground, there being no error apparent on the face of the record.
    Error from District Court, Lamar County; A. P. Dohoney, Judge.
    Suit between Ben L. Billingsley and the Texas Midland Railroad. Judgment for the latter, and Billingsley brings error.
    Affirmed.
    B. B. Sturgeon, of Paris, and Carden, Starling, Carden, Hemphill & Wallace, of Dallas, for plaintiff in error.
    Moore & Hardison, of Paris, and Coke <& Coke and S. W Marshall, all of Dallas, for defendant in error.
   WILLSON, C. J.

To entitle him to have the document delivered to the clerk of this court December 23, 1918, considered as a statement of facts, plaintiff in error must have filed same in the court below within the time allowed by law for filing the transcript here — that is, he must have filed the document in the trial court within 90 days from August 23, 1918 (the date the citation in error was served), or not later than November 21, 1918. Articles 2073 and 1608, Vernon’s Statutes; State v. Lincoln, 147 S. W. 1195; Ry. Co. v. Reek, 179 S. W. 699; McKenzie v. Beason, 140 S. W. 246; Raleigh v. Cook, 60 Tex. 438; Matthews v. Boydstun, 31 S. W. 814; Smith v. Ry. Co., 43 Tex. Civ. App. 204, 95 S. W. 11; Connally v. Saunders, 142 S. W. 975; Folts v. Ferguson, 24 S. W. 657; McGuire v. Newbill, 58 Tex. 314; Ross v. McGowen, 58 Tex. 603; Dennis v. Neal, 71 S. W. 387. As a matter of fact the document was not so filed until December 21, 1918. As, therefore, the document cannot be treated and considered as a statement of facts, this court cannot determine whether there is merit in the complaint made by plaintiff in error that the trial court erred in giving certain instructions and also in refusing to give certain other instructions to the jury. As the judgment is not attacked on any other ground,' and is free from error apparent on the face of the record, this court cannot do otherwise than affirm it.


author: WILSON, C. J.

text:
    FARMER v. McKINLEY et al.
    (No. 2053.)
    (Court of Civil Appeals of Texas. Texarkana.
    Jan. 14, 1919.
    Rehearing Denied Jan. 23, 1919.)
    Appeal and Error <§=395 — Failure to File Appeal Bond — Dismissal—Statutes.
    Where appeal bond was not filed in trial court within time allowed by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 30, subd. 4, and article 2084, the Court of Civil Appeals is without power to hear and determine appeal, which must be dismissed.
    Appeal from District Court, Gregg County; Daniel Walker, Judge.
    Action between J. M. Farmer and R. S. McKinley and Etta McKinley. From a judgment for the McKinleys, Farmer appeals.
    Appeal dismissed.
    W. E. Beall and F. B. Martin, both of Longview, for appellant.
    Edwin Lacy, of Longview, for appellees.
   WILSON, C. J.

Because the appeal bond was not filed in the court below within the time allowed by law (Vernon’s Statutes, art. 2084, and article 30, subd. 4), this court is without power to hear and determine the appeal. Block v. Largent, 127 S. W. 1076; Mara v. Branch, 127 S. W. 1076; Dilworth v. Steves, 107 Tex. 73, 174 S. W. 279.

Therefore it is dismissed.
      <®=For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: FLY, C. J.

text:
    SMITH v. FELDER et al.
    (No. 6125.)
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 8, 1919.
    Rehearing Denied Feb. 5, 1919.)
    Brokers <®=^>64(2) — Real Estate Exchange Transaction — Compensation — Conditional Contract.
    Broker, having contract to procure buyer “suitable” to owner, was not entitled, to commissions for procuring contract for exchange of land conditioned upon ability of each party to .give good title, where exchange was not perfected because of inability of party produced by broker to furnish good title.
    Appeal from Bexar County Court for Civil Cases; John H. Clark, Judge.
    Action by C. A. Smith against J. L. Felder and another. Judgment-for defendants, and plaintiff appeals.
    Affirmed.
    Lewright & Douglas, of San Antonio, for appellant.
    T. F. Mangum, of San Antonio, for appel-lees.
   FLY, C. J.

This is a suit for $487.50, alleged to be due as commissions for the procurement of the exchange by appellant of certain real estate between appellees, J. L. Felder and Camp Felder, and G. Denton. The cause was tried by jury, and a verdict instructed for appellees, upon which judgment was rendered.

The evidence showed that no exchange of property took place between the parties, on account of defects in the title of Denton. The evidence is undisputable that the failure to make the exchange was not on account of any defect in the title to appellees’ land, but on account of defects in the title of Denton. The contract, as testified to by appellant, was:

“That I was to find a buyer for his property, and if suitable to him, he was to pay me the commissions usually agreed to of 2½ per cent, for the exchange of his property, up to $6,000, and 5 per cent, on the balance.”

Appellant afterward procured a contract between appellees and Denton, by which each agreed to furnish an abstract of title “conveying a good and merchantable title.” Denton failed to furnish an abstract showing “a good and merchantable” title, and the exchange of property was never perfected. Appellant admitted that he was to receive—

“2½ per cent, if the property had been exchanged. Each party would have paid me 2½ per cent, on one-third of the value of the property, and for the other two-thirds it would have been 5 per cent., to be paid by the party holding the larger interest in the exchange.”

Taking the testimony of appellant as being absolutely true, although sharply contradicted, he fails to make out a case. He did not “find a buyer for his property” that was “suitable” to appellees, because he found one with a defective title to his land, which he made no effort to cure. Appellant was to be paid for the exchange of the property of ap-pellees for other property, and that property, by the terms of a contract procured by appellant, was to be held by “a good merchantable title” in Denton. In order that the broker may recover commissions in case of an exchange of properties, he must show either that there was no stipulation as to the title of the person found by him, or that such a stipulation was met by an offer to give such title as the stipulation demanded. English v. George Realty Co., 55 Tex. Civ. App. 137, 117 S. W. 996.

In the contract entered into between appel-lees and Denton it was agreed that each party should deposit $250 in escrow as “earnest money,” and—

“that if either party to this contract fail or refuse to comply with the obligations hereby entered into that the party in default shall forfeit the two hundred and fifty ($250.00) dollars placed in escrow as liquidated damages for breach of contract.”

Quite similar language was held to prevent specific performance of the contract, and that the seller is bound to accept the sum for damages against the purchaser, and that the broker who had procured such a contract could not recover commissions against the seller. Simpson v. Eardley, 137 S. W. 378. The opinion cited the case of Moss & Raley v. Wren, 102 Tex. 567, 113 S. W. 739, 120 S. W. 847, as being decisive of the Simpson-Eardley Case, and a writ of error was refused. The reason of the rulé in such cases is that no purchaser has been procured who is able to enter into an absolute contract to purchase the land.

The contract in this ease was conditional upon the ability of the parties to make a good title. This distinguishes it from the case of Seidel v. Walker, 173 S. W. 1170, and the case of Roche v. Smith, 176 Mass. 595, 58 N. E. 152, 51 L. R. A. 510, 79 Am. St. Rep. 345, cited by appellant, as well as others of like tenor, and brings it clearly within the purview- of Blair v. Lowrey, 164 S. W. 14, and Stanford v. Wilie, 178 S. W. 991.

The judgment is affirmed.
      <@=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HUFF, C. J.

text:
    FT. WORTH & D. C. RY. CO. v. STRICKLAND.
    (No. 1442.)
    (Court of Civil Appeals of Texas. Amarillo.
    Jan. 8, 1919.
    Rehearing Denied Feb. 5, 1919.)
    1. Carriers ⅞=»227(3) — Live Poultry — Delay in Furnishing Car — Issues.
    Pleadings held to raise the issue of whether railroad furnished car for shipment of live poultry within a reasonable time after shipper’s application therefor, in compliance with its duty under Interstate Commerce Act (U. ¡3. Comp. St. § 8563, subd. 2).
    2. Carriers <®=>47(1) — Poultry — Furnishing Car — Authority os’ Agent.
    In action against railroad for failure to furnish car for shipment within a reasonable time after shipper’s application in violation of its duty under Interstate Commerce Act (U. S. Comp. St. § 8563, subd. 2), held, that the railroad’s agent at one station had' authority to receive application for car for shipment at another station.
    3. Carriers 3=5207(1) — Poultry — Application por Oar — Waiver op Irregularities.
    An irregularity in shipper’s application for ear for shipment of poultry was waived by carrier, where trainmaster received order,'acted on it, and finally furnished the car on the application.
    4. Carriers <§=5209 — Poultry — Duty op Railroad — Furnishing op Cars.
    Under Interstate Commerce Act (U. S. Comp. St. § 8563, subd. 2) and state laws, where there was a demand along railroad for cars for shipment of live poultry, it was railroad’s duty to furnish cars suitable for such purpose.
    5. Carriers <§=>42 — Acceptance op Perishable Goods — Duty op Railroad.
    Railroad accepting perishable goods requiring cars and equipment of a peculiar kind, undertakes, in the absence of some fact changing the nature of the undertaking, that it has such ears and equipment, and that it will properly use them in the transportation of such property.
    6. Carriers <§=>44^-Acceptance op Perishable Goods — Failure to Furnish Cars — Defenses.
    Where railroad accepts perishable goods with express or implied notice of the perishable character thereof, it is precluded, upon its failure to furnish cars, from asserting that it did not have the means or facilities for performing the duty it took upon itself; it being no defense that carrier did not own or control such sars or equipment.
    7. Carriers <s=>40 — Furnishing op Cars — Reasonable Notice by Shipper.
    Generally, when cars are required by shipper, reasonable notice should be given by him, and a reasonable time.allowed the company in which to procure cars.
    8. Carriers <®=>45 — Failure to Furnish Car —Action for Damages — Burden of' Proof.
    As railroad is required to furnish cars for goods accepted, and as facts excusing its failure to furnish cars when proper request is made and freight is offered are peculiarly within railroad’s knowledge, the burden is upon railroad to establish facts constituting an excuse for failure to furnish cars.
    9. Carriers <®=>40 — Transportation Facilities — Duty of ¡Railroad — “Transportation.”
    Railroad’s duty to “furnish transportation upon reasonable request,” under Interstate Commerce Act (U. S. Comp. St. § 8563, subd. 2), requires it to furnish suitable cars as a part of the transportation.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Transportation.]
    10. Carriers <3=545 — Failure to Furnish Transportation — Action for Damages — Burden of Proof.
    In action against railroad, based on railroad’s violation of its duty to furnish transportation, under Interstate Commerce Act (U. S. Comp. St. § 8563, subd. 2), the burden is on railroad to allege and prove a legal excuse.
    11. Carriers <§=>39 — Duty as to Transportation — Quasi Public Corporations.
    Railroads are quasi public corporations, and acquire thereby an exclusive privilege to carry on their business over their highways, which powers are granted with the express view of their rendering adequate and impartial service to the public.
    12. Carriers <§=>206 — Live Poultry — Failure to Furnish Cars — Defense.
    Where application was made for car for shipment of live poultry, railroad’s failure to furnish car within reasonable time, as required by Interstate Commerce Act (U. S. Comp. St. § 8563, subd. 2), was not excused by fact that it relied upon another company to furnish car, where such car was the one commonly used by the railroad for the shipment of poultry.
    13. Trial <3=o2G0(5) — Instructions Covered by Others Given.
    In action for failure to furnish car, refusal of requested instruction permitting jury to take conditions surrounding transaction into consideration on question of whether railroad exercised reasonable diligence in furnishing car was not error, where court in its main charge defined reasonable diligence correctly, and told jury to consider railroad’s situation and its ability to furnish particular car requested.
    14. Appeal and Error <3=>742(3) — Assignments of Error.
    The proposition that pleadings did not raise certain issue was not relevant under assignment of error that court erred in rendering judgment on findings of the jury on such issue.
    15. Carriers <§=>230(1) — Failuee to Furnish Car within Reasonable Time — Live Poultry-Jury Question.
    In action against railroad for failure to furnish car for shipment of live poultry within reasonable time after application therefor, as required by Interstate Commerce Act (TJ. S. Comp. St. § 8563, subd. 2), where there was evidence of shipper’s application for such car, the question of whether railroad furnished car within a reasonable time was for the jury.
    16. Evidence <§==>131 — Failure to Furnish Car — Similarity of Conditions.
    In action against railroad for failure to furnish car within a reasonable time after application therefor, as required by Interstate Commerce Act' (⅛. S. Comp. St. § 8563, subd. 2), evidence that plaintiff applied to another railroad for a similar car which was furnished in less time than that in which defendant furnished car was inadmissible, where it was not shown that conditions with reference to the two orders were the same.
    17. Appear and Error <§=>1050(1) — ¡Review-Harmless Error.
    In action against railroad for failure to furnish car, as required by Interstate Commerce Act (U. S. Comp. St. § 8563, subd. 2), the admission of evidence that shipper applied to another railroad for similar car, and was furnished car in less time, was harmless, where there was other evidence of such facts admitted without objection.
    18. Evidence <§=>129(6) — Delay in Furnishing of Oar — Action, for Damages.
    In action against railroad for failure to furnish car within a reasonable time after application therefor, as required by Interstate Commerce Act (U. S. Comp. St. § 8563, subd. 2), evidence that defendant railroad furnished another shipper a similar car on a subsequent application before car was furnished plaintiff was admissible in evidence of unreasonable delay.
    19. Carriers <§=>228(5) — Delay in Furnishing of Car — Sufficiency of Evidence — Unreasonable Delay.
    In action against railroad for failure to deliver car for shipment of live poultry within a reasonable time after application, as required by Interstate Commerce Act (U. S. Comp. St. § 8563, subd. 2), evidence held to support verdict for plaintiff.
    Appeal from Wilbarger County Court; E. L. McHugh, Judge.
    Action by John L. Strickland against the Ft. Worth & Denver City Railroad Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Bonner & Storey, of Vernon, and Thompson, Barwise, Wharton & Hiner, of Ft. Worth, for appellant.
    Berry, Stokes & Morgan, of Vernon, for appellee.
   HUFF, C. J.

Strickland, appellee, sued the appellant railway company for damages for failure to furnish a car in which to ship poultry, which car was to be placed on the road switch at Chillicothe, Tex., and from that station to be shipped to New York. It is alleged the application was in writing and made December 28, 1916; that the car was to be furnished January 3, 1917, but that it was not furnished until January 21, 1917. There was a delay of 18 days and consequent damages for extra feed, $289.90, extra labor, an extra man to care for the poultry, $24, loss and shrinkage, $101.91, which was caused by the delay. The appellant answered that the ap-pellee made application to its local agent at Vernon, Tex., December 28, 1916, for a car in which to load and ship poultry from Vernon, Tex., to New York, and desired the car set at Chillicothe for loading January 3,1917; that the particular car desired by appellee was not owned by appellant, but that such ear was of peculiar construction and was furnished appellant and other railway companies, when they applied for them, by the Live Poultry Transit Company, of Chicago, Ill., and this fact was well known to appellee when he applied for the car; that it did take immediate steps to secure the car and was unable to secure it until about the 20th of January, 1917; that it did all it could and that it could not furnish it at an earlier date and used all diligence in its power, but on account of the limited number of such cars and the demand on the company it was unable to furnish the oar sooner; that it did not agree to get the car on any day certain, and was only required to use due diligence to furnish the same; that it being for an interstate shipment it was not required to do more than it did to secure the same; that it used all 'the diligence to secure the car within a reasonable time and did secure the car within a reasonable time.,

By a first supplemental petition appellee replied, denying due diligence on the part of appellant, alleging that from the time of the application with the agent to the 3d of January was a reasonable time within which to furnish the car; that it did not use reasonable diligence to furnish the car January 3d, or at any subsequent date; that said date was a reasonable time, and appellant failed thereafter to furnish the car within a reasonable time; that the failure of appellant to use diligence to furnish the car within a reasonable time after December 28, 1916, the date of the application, occasioned the damages set out. By a supplemental answer the appellant alleged that it was not required to furnish the ear on the date requested because the application was for a Live Poultry Transit Company car, to be loaded at Chillicothe, and the application was made to the local agent at Vernon, Tex., and was not binding upon appellant; that for such ear the application was not binding on it to furnish the same within a reasonable time or any other time. By a second supplemental petition ap-pellee alleged, in answer to appellant’s supplement, that appellee and its agents com-manly received applications for cars to be loaded at stations oilier than the station where it was filed; that appellant received the application through its agent, Allman; that the proper officer in charge of providing cars for shipment received the application from the agent at Yernon, and that appellant, through its officers, acted upon such application, thereby waiving any technical irregularity as to the place from which it was made; that the car ordered was the line of cars commonly in use for. poultry shipments in that part of the country; that appellant tendered no other of such character; that the application was made out by appellant’s agent and only signed by the appellee; that any car suitable for such shipment would have been acceptable to him.

The first assignment is based on a requested charge for an instructed verdict. Under this assignment are three propositions. The first is to the effect that notice to the local station agent at Vernon, Tex., for a car to be loaded at Chillieothe was not binding on appellant in the absence of proof that hei was authorized to receive the notice; that such notice must he given to the superintendent or person in charge of transportation at the point where the car is desired. This case is not based on an alleged contract, but is founded upon a failure of duty to furnish a car within a reasonable time after application therqfor. The agent at Vernon did not purport to make a contract, but only received the application, which he transmitted to the proper authority. It appears that appellant contends that there was no pleading raising the issue for a ear within a reasonable time thereafter. The original petition, together with the answer and the supplements, clearly presents that as the issue, and in fact this was the issue submitted by the court. The agent who took the application testified that, while the application states the oar was to be loaded at Chillieothe, the appellee told him at that time that it would be loaded in part at Chillieothe and finished loading at Vernon, and that in sending the application on that day he wired J. A. Murphy, the trainmas-ter, among other things: “Car to stop Vernon to finish loading.” This witness further testified:

“J. A. Murphy was the trainmaster and was the proper employe of the company to whom it was my duty as local agent to forward the application for this car.”

The application is dated Vernon, Tex., 12/28/16, and addressed to the agent at that place, and reads:

“Sir: I desire to ship one car of live poultry from Vernon to New York via * * * Ry., which I desire to load at Chillieothe station at 8 a. m., January 3, 1917. Please furnish a car for this shipment at the time named — I* P. T. Co. car.” |

This application has a notation that agents ■were not authorized to make promises or agreements to furnish cars for any specified time, and a statement by Strickland that he had read the notice and that there was no agreement that ears would be furnished on the date desired, or any other specified time. The agent also signed a statement to the effect that agents will, under no circumstances, agree that cars ordered will be furnished at the time specified in the order, but may promise every reasonable effort will be made to fill such order. The agent further testified:

“The railway company does not own this make of car, but they are owned by the Uive Poultry Company of Chicago. There are two or three companies that own and handle this kind of car, but the Denver (appellant) usually got its cars from this particular company. The application was made to the company or to the connecting carriers when a request to furnish this car was received by defendant.”

He stated also that cars were scarce during the months of December and January and hard tp procure, and that he did not promise to get the car for any specified time. The telegrams in the record show that the application was forwarded to the trainmaster, who acted on the same and wired for the car and sought to obtain the same, and appellant finally furnished the car on the application of appellee. The application for the car was to ship poultry from Vernon to New York, but the car was tol be partly loaded at Chillieothe and finished at Vernon. We are inclined to bélieve under the circumstances of this case the agent at Vernon had authority to make the contract for the shipment and to receive the application for the car at that point. This we do not think would be in conflict with the holdings in the cases of Railway Co. v. Cox, 103 S. W. 1121, and Railway Co. v. Belcher, 88 Tex. 549, 32 S. W. 518. The effect of the holdings in those cases and others is that one local agent has no implied authority to contract or bind his company concerning matters beyond his own station. The evidence in this case is that the local agent had authority to receive the application and that it was his duty to transmit it to the trainmaster, who was the proper officer to receive such application so forwarded. Whitley v. Railway Co., 183 S. W. 36. Further, it is pleaded and proven that the trainmaster received the order, acted on it, and finally furnished the car on the application. If there was any irregularity in making the application, the appellant, through its proper officer, waived it.

The second and third propositions under this assignment assert that, appellee having applied for a Dive Poultry Transit Company car, appellant was not bound to furnish such car at all, as no such duty rested upon it and no contract was alleged or proven, and further states that neither state nor national laws require a railway to furnish a shipper any particular make of cars, regardless of the time when the same is desired. This case is not a suit upon a contract to furnish the car but upon its duty as a carrier to furnish cars for transportation of poultry. Its duty in this particular depends upon whether it was the custom to furnish such cars, or whether the law imposed upon it the duty to provide facilities for transporting poultry along its line of road. Appellant alleged that the car applied for was furnished it by the live Poultry Transit Company when applied for. The agent testified appellant usually got its cars from that company, and either .applied to it direct or to connecting carriers. The evidence in this case shows that the poultry industry was engaged in at the point of shipment, and that cars of this kind were called for and used on that line of road. The evidence also shows that there were other makes of cars used in transporting poultry, but that appellant usually used this particular make. In this case the agent wrote out the application, which evidently was a blank form furnished by the company, calling for this particular car.'

If the demands of the public along appellant’s road demanded cars for this industry, the law, national and state, required it to furnish ears suitable for shipping. It cannot evade that duty by showing it had no such cars, or by showing it used the cars of other companies for the purpose, for in so doing it did no more than the law required in discharging its duty to the public in fur-nishing the necessary cars. This duty was part of the transportation under the Interstate Commerce Act. and nondelegable. The fact that it relied upon an independent agency to furnish the car will not affect its liability to do its duty toward the public. Railway Co. v. Phillips, 197 S. W. 1031. The evidence prima facie establishes that appellant relied upon the make of cars applied for to perform its public duty. There is no evidence that it had cars of its own suitable for this purpose and no proof that it could have obtained cars from any other source for the service required. In the absence of such proof we do not think appellant entitled to an instructed verdict.

“A railroad carrier that accepts for transportation goods of a perishable nature which require cars and equipment of a peculiar kind undertakes, in the absence of some fact changing the nature of the undertaking, that it has such cars and equipment, and that •it will properly use them in the transportation of such property. In such case it is no defense that the carrier did not own or control such cars of equipment, for by accepting the property with notice, express or implied, of its character, the carrier is precluded from asserting that it did not have the means or facilities for performing the duty it took upon itself.” Elliott on Railroads, vol. 4, § 1475.

It is also a general rule that when cars are required by the shipper reasonable notice should be given by him and a reasonable time allowed the company in which to procure the car. Id., § 1476. “As the general rule of law requires a railroad carrier to furnish cars for the transportation of the kind of goods it undertakes to carry, and as the facts constituting an excuse for the failure to furnish them when a proper request is made and freight is offered are peculiarly within the knowledge of the carrier, it logically follows that the burden is on the carrier to establish the facts constituting an excuse for the failure to furnish cars.” Id., § 1477. By the Interstate Commerce Act (ü. S. Comp. St. § 8563, subd. 2) it is provided :

“And it shall be the duty of every carriel-, subject to the provisions of this act, to provide and furnish such transportation upon reasonable request therefor.”

Congress has defined “transportation” to include all cars, instrumentalities, and facilities of shipment, etc. An interstate shipment does not confine transportation to the actual voyage or trip. See above, § 8563; Railway Co. v. Dettlebach, 239 U. S. 588, 36 Sup. Ct. 177, 60 L. Ed. 453; Railway Co. v. Smyth, 189 S. W. 70; Railway Co. v. White, 188 S. W. 714. Congress evidently recognized that the duty to the public in-eluded a variety of services that, according to the theory of the common law, were separable from the service of carriers as carriers, so that by the act of Congress the entire body of the services to be performed falls under the general head of transportation, among which is furnishing cars. So it is made the duty of the carrier to “furnish suitable” cars as part of the transportation. Appellant cites cases in which recovery for a penalty is sought under the state statutes. R. C. S. arts. 6683 et seq. Some of the cases allege as grounds therefor a contract to furnish cars at a specified time, with no allegation that they were not furnished within a reasonable time after the order. In such cases the courts held that the pleadings did not justify a recovery for withholding the cars an unreasonable length of time. Railway Co. v. Cannington, 110 S. W. 965; Railway Co. v. Arnett, 40 Tex. Civ. App. 76, 88 S. W. 448 and other authorities. In that class of cases it is usually held a party suing for a penalty is required to bring himself strictly within the terms of the statute, both by the pleadings and the evidence, and that he is charged with the burden of showing he is within the letter of the statutes authorizing a recovery of the penalty.

But where a railroad violates its duty and the cause of action is based on that ground and a recovery is sought for damages resulting therefrom, the burden is on it to allege and prove a legal excuse. Railroads are quasi public corporations, and acquire thereby an exclusive privilege to carry on' their business over their highways. These powers are granted with the express view of their rendering to the public adequate service. These services must be rendered impartially and efficiently. “To this end the laws impress on them the obligation to furnish sufficient facilities for the reasonably prompt transportation of goods tendered for carriage; they are bound to provide sufficient cars for transporting without unreasonable delay the usual and ordinary quantity of freight offered to them, or which might reasonably and ordinarily be expected.” 4 R. O. L. p. 672; Railway Co. v. Barrow, 94 S. W. 176. This case is expressly approved by the Supreme Court in Allen v. Railway Co., 100 Tex. 525, 101 S. W. 792; also Railway Co. v. Powell, 34 Tex. Civ. App. 575, 79 S. W. 86; Railway Co. v. Smith et al., 34 Tex. Civ. App. 571, 79 S. W. 614. The Court of Civil Appeals in the Allen Case, while holding the penalty could not be recovered, held nevertheless, on rehearing, that damages could be recovered for a failure to furnish cars within a reasonable time, and also made the same holding in the' case of Railway Co. v. Hughes, 99 Tex. 533, 91 S. W. 567, cited by appellant, upon motion for rehearing 94 S. W. 130.

The poultry car ordered by appellee in this case was not peculiar to appellant’s line of road or for that class of freight. The car ordered was the one commonly used by appellant to transport live poultry. The mere fact that it relied, upon another company, which was the owner thereof, to furnish this car did not relieve it of its duty. It may be if a car of a particular make not commonly or ordinarily used by appellant in performing its service to the public should be ordered, and the company had other suitable cars for the service, that it would not be required to furnish the particular car so ordered, but the evidence in this case raises no such question.. This assignment will be overruled.

The second assignment complains of the refusal of specially requested charge la. This charge sought to have the jury instructed that in ascertaining whether appellant used diligence to procure a car that they would take into consideration the conditions surrounding the transaction at the time, such as the time of year, scarcity, etc. The court in its main charge defined reasonable diligence correctly, and further charged:

“Bearing in mind this definition, and taking into consideration the situation of defendant and its ability to furnish the particular car requested by plaintiff, you will answer the following questions,” etc.

We think the court’s charge was substantially the same as requested, and it was unnecessary to give further instructions thereon.

The third assignment also complains of the refusal of the court to give specially requested charge No. 2. The evidence did not require this charge. All the evidence there was as to the value of the feed given the poultry held for shipment was confined to the poultry appellee had on hand January 3d, and not for feed for poultry purchased after that time. There was no material error in refusing this charge. It is not probable that the jury found for feed of which there was no evidence.

The fourth assignment is to the effect that there was error in rendering judgment on the findings of the jury that the car was not furnished within a reasonable time because, it is asserted, there were no pleadings justifying such issue. We think the pleadings presented the issue as heretofore pointed out. The proposition under this assignment is not relevant. However, we think what has been said under the first assignment answers this proposition.

The fifth assignment presents no error that will require a reversal. The proposition under this assignment we regard as substantially correct, but the evidence shows that appellee had enough poultry to load the car at the time for which it was ordered. He had about 50 per cent, of the car at Chilli-cothe and enough to finish the ear at Vernon. The order stated the car would be shipped from Vernon, and the agent testified the ap-pellee told him the loading of the car would be finished at Vernon and at the same time he received the order he so notified by wire the trainmaster. We think appellee discharg- - ed the burden on him. He testified he had on hand January 3d and 4th poultry to load the car at Ohillieothe and Vernon. This was not disputed or controverted by the evidence.

The sixth, seventh, eighth, and ninth assignments have been sufficiently disposed of under the first assignment. Tire question as to whether the car was furnished within a reasonable time was properly submitted to the jury under the order for the car, and the jury, we think, had evidence for finding it was not furnished within a reasonable time.

The tenth assignment presents as error, the admission of the testimony of appel-lee Strickland, “that he applied to the Frisco for a similar car to the one he had made application for to the defendant on December 31, 1916, and that it was furnished to him at Vernon on January 11, 1917.” The objection urged to the testimony was that it was not admissible as a comparison as the conditions were not shown to be the same with reference to the two orders. This objection should have been sustained. The evidence was improper to establish the issue of an unreasonable delay by appellant in furnishing the car ordered from it. This error, however, will not require a reversal. The agent Allman testified he knew from Strickland that he ordered the car from the Prisco by December 31st and that it had been furnished him about the 11th or 12th of January. There were no objections to this evidence, and being substantially the same as that objected to renders the error harmless.

By the eleventh assignment appellant asserts error to the admission of the testimony of George Zachary to the effect that he asked appellant for a car of the kind as applied for by appellee for shipment from Vernon on or about January 1, 1917, which appellant furnished about January 15, 1917. The same objection was made as that made to Strickland’s evidence under the tenth assignment. We might dispose of this assignment on the same grounds as under the tenth assignment. Both the agent and Strickland testified to substantially the same facts as did, Zachary, without objection, but there is another reason why we think this evidence admissible. Appellant furnished Zachary a car of the same make on a subsequent application, and before it filled appellee’s order, thereby giving a preference to Zachary, and under the state statute, which requires the road to supply cars in the order of the applications, appellant violated that statute. If such act amounted to an unjust discrimination in giving one shipper a preference in the order of furnishing the car, it would also be a violation of the Interstate Commerce Act, and also violate the common law. As shown in this case, it certainly evidenced^an unreasonable delay to postpone appellee’s car until one could be furnished another shipper at the same station, upon a subsequent application. Railway Co. v. Powell, 34 Tex. Civ. App. 575, 79 S. W. 86.

The twelfth assignment asserts the verdict is unsupported by the evidence. It is claimed that the appellant did all in its power to procure the car. Appellant principally relies for this assertion upon the telegrams passed between the agent and trainmaster. These wires do not show what was actually done by appellant, or why the ears could not be had. It is asserted in general terms cars were scarce, but why is not shown. The evidence shows that appellant did furnish the same kind of ear on a subsequent order before appellee’s car was furnished. It is also shown after the application that 26 days elapsed before the car was furnished to ap-pellee. The agent testified:

“Prom my experience I state in my opinion a reasonable time in which defendant could have furnished this car was from 10 to 15 days.”

He testified that under normal conditions a car of the kind ordered could be had in a few days, and that owing to the season the car was hard to get and that it was a question of finding an empty ear, and in so far as he was concerned he did all he could to locate a car. The trainmaster’s, testimony was not given, but only his telegrams- to the agent were offered and relied upon. In Considering the evidence and the verdict of the jury, they evidently allowed appellant about 12 days in which to procure the car after the order was made. We believe the evidence supports the verdict of the jury.

We find no reversible error, and the judgment will be affirmed.
      <§=5>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <§=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes