text:
    BELADO v. STATE.
    (No. 4960.)
    (Court of Criminal Appeals of Texas.
    May 15, 1918.)
    Cbiminae Law @=>84(6) —- Jurisdiction — County Courts.
    As the Nueces county court was expressly given jurisdiction of all misdemeanors by Acts 23d Leg. c. 21, and the district court only had jurisdiction of felonies and offenses involving official misconduct. Acts 35th Leg. c. 46 (Vernon’s Ann. Code Or. Proe. Supp. 1918, arts. 97^-97%i), creating a criminal district court, “which shall have * * * all of 'the criminal jurisdiction now vested in * * * the district court,” divesting; said district court only of jurisdiction it vests in said criminal district count, and containing no provision conforming the jurisdiction of the county or justice court to its jurisdiction, did not divest such county court of its criminal jurisdiction, under Const. 1876, art. 5, §§ 1, 16, as amended September 22, 1891, providing that the Legislature may establish such courts as it may deem necessary and prescribe the jurisdiction and organization thereof, and may conform the jurisdiction of the district and other inferior courts thereto, and that the county court shall not have criminal jurisdiction in any courts where there is a criminal district court, “unless expressly conferred by law,” and that in such counties appeals from justices’ courts and other inferior tribunals in criminal cases shall be to the criminal district court, under such regula* tions as may be prescribed by law, and section 22, providing that the Legislature shall have power, by local or general law, to increase, diminish, or change the civil and criminal jurisdiction of county courts, and that, in cases of any such change of jurisdiction, the Legislature "shall also conform the jurisdiction of the other courts to such change.”
    Appeal from Criminal District Court, Nueces County; Walter F. Timón, Judge.
    Habeas corpus proceedings by Ramon Bela-do. From a judgment remanding him to the sheriff, he appeals.
    Affirmed.
    Pope & Sutherland, of Corpus Christi, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

In November, 1917, appellant was convicted in the county court of Nueces county of violating the Pure Food Law and fined $25. The costs were a little more than that sum. The proper judgment was rendered, and thereon a proper writ was issued, commanding the sheriff to take custody of him and keep him until he paid the fine and costs. The officer took charge of him thereunder and placed him in jail. He refused to pay the fine and costs. On 'December 7th he sued out a writ of habeas corpus before Judge Timón, judge of the criminal district court of said county. Upon hearing the cause under said writ, Judge Timón remanded him to the custody of the sheriff. Appellant claimed that the county court had no jurisdiction to try him, and that only said criminal district court had such jurisdiction.

His contention is that, because at the time of his trial there was a criminal district court for said county, thereby under the Constitution and statute the county court was wholly deprived of any jurisdiction of criminal misdemeanor cases and offenses. Article 5, § 1, of the Constitution, vests the judicial power of this state in the Supreme Court, Courts of Civil Appeals, Court of Criminal Appeals, district courts, county courts, commissioners’ and justice of the peace courts, .and in such other courts as may be provided toy law. The criminal district court in Galveston and Harris counties was kept in force by the Constitution of 1876 and the amendment of this section of September 22, 1891, but the Legislature was given power to provide otherwise as to that criminal district court. Said amendment added this to said section:

“The Legislature may establish such other courts as it may deem necessary, and prescribe the jurisdiction and organization thereof, and •may conform the jurisdiction of the district and .other inferior courts thereto.”

Article 5, § 16, of the Constitution of 1876, •and the amendment thereof adopted on September 22, 1891, vests jurisdiction in every •county court of every county as follows:

“The county court shall have original jurisdiction of all misdemeanors of which exclusive ■original jurisdiction is not given to the justice’s court as the same is now or may hereafter be prescribed by law, and when the fine to be imposed shall exceed two hundred dollars. * * * They [county courts] shall have appellate jurisdiction in cases * * * of which justices’ courts have original jurisdiction, * * * under such regulations as may be prescribed by law. In all appeals from justices’ courts there shall be a trial de novo in the county court; and appeals may be prosecuted from the final judgment rendered in such cases, by the county court, * * * [in all cases] criminal, of which, the county court has exclusive or concurrent or original jurisdiction,' * * * to the Court of Criminal Appeals, with such exceptions and under such regulations as may be prescribed by law. * * The - county court shall not have criminal jurisdiction in any county where there is a criminal district court, unless expressly conferred by law; and in such counties appeals from justices’ courts and other inferior * * * tribunals in criminal cases shall be to the criminal district court, under such regulations as may be prescribed by law; and’in all such cases an appeal shall lie from such, district court to the Court of Criminal Appeals.”

Only that portion of said section which applies to criminal cases is quoted. The part as to civil cases and business is omitted, because inapplicable.

Article 5, § 22, is:

“The Legislature shall have nower, by local or general law, to increase, diminish or change the civil and criminal jurisdiction of county courts; and, in cases of any such change of jurisdiction, the Legislature shall also conform the jurisdiction of the other courts to such change.”

The statute first passed after the Constitution of 1876 was adopted, organizing county courts, expressly gave those courts jurisdiction of all misdemeanors, except those involving official misconduct, “and except in counties where there is established a criminal district court,” strictly in accordance with the Constitution. (This article is now 9S of the C. C. P. and in the same language as originally enacted.) At that time, and for many years thereafter, Galveston and Harris counties were the only ones which had a criminal district court. So that unquestionably the county court of Nueces county was vested with jurisdiction over misdemeanors.

. By Acts 1881, p. 13, jurisdiction of all misdemeanor's of which the county court of Nueces county at that time had jurisdiction was expressly taken therefrom (and from many other counties also), and was thereby vested in the regular district court of that county, and the jurisdiction of all the other courts conformed thereto. Then by Acts 1893, p. 19, said act of 1881 was repealed, and jurisdiction of all misdemeanors, which it first had, was taken from said district court, and expressly revested in said county court, where it has ever since remained. At least since 1891 Nueces county has continuously been in the Twenty-Eighth judicial district, and ever since said act of 1S93, until Acts 191J, p. 76, has had jurisdiction only of all criminal cases — felonies and civil cases expressly given to it by article 5, § 8, of the Constitution. It has never since had nor exercised jurisdiction, original or appellate, of any misdemeanors, except those involving official misconduct.

■ The said act of 1917 created a criminal district court for Nueces county and vested in it solely this jurisdiction:

“Which shall have and exercise all of the criminal jurisdiction now vested in and exercised by the district court of the Twenty-Eighth judicial district of Texas.” (It also vests it with jurisdiction of divorce and tax suits.)

It also divests said Twenty-Eighth district court of only all jurisdiction it vests in said criminal district court. Said act of 1917 has no provision giving said criminal district court any original or appellate jurisdiction whatever of any misdemeanor, except for official misconduct, and has no provision conforming the jurisdiction of the county or justice’s court to its jurisdiction, but conforms only the jurisdiction of said Twenty-Eighth district court to said criminal district court’s jurisdiction.

If the Legislature had intended to give said criminal district court, any jurisdiction of misdemeanors it would have been necessary for it to have expressly done so, and would also then have been necessary to have expressly conformed the county court jurisdiction thereto, and also have conformed the appellate jurisdiction of the justice’s courts from the county to said criminal district court as expressly required by the Constitution. County courts have concurrent original jurisdiction with the justice courts of all misdemeanors when punishable only by fine not to exceed $200. County courts have exclusive jurisdiction of all misdemeanors where the fine may exceed $200, or where any jail penalty may be imposed (except those involving official misconduct, of which the district courts have exclusive jurisdiction). There are a large number of these offenses, where the fine may exceed $200, or jail imprisonment may be imposed — one or both'. Said act of 1917 makes no provision whatever as to any of these. Certainly it could not be held said act gives said criminal district court any jurisdiction of such misdemeanors, because its jurisdiction is expressly stated as copied above, and excludes any such jurisdiction. If the mere creation of said criminal district court could be held to ipso facto or automatically deprive said county court of all such jurisdiction, of which it had unquestionably been given express jurisdiction, then there would necessarily be a large number of offenses, of which no court would have jurisdiction, and consequently which could not be punished. All this leads to the inevitable conclusion that the Legislature clearly intended that the jurisdiction of misdemeanors should remain in said county court of Nueces county, where it had been expressly placed as shown.

The only case found which is regarded in point is Kruegel v. State, 84 S. W. 1064. In that case it is shown that in 1893 the Legislature passed an act creating a criminal district court for Dallas county, vesting in it only “all the criminal jurisdiction now vested’ in and exercised by the district courts of Dallas county,” just as in this instance. Th'ere-was no provision in said act relative to appeals to said court. There is none in said, act of 1917. At'the same session of the Legislature (1893) was passed an act giving the' Dallas county court jurisdiction of misdemeanors. In this instance such act had been passed in 1893, expressly vesting the county court of Nueces county with jurisdiction of. misdemeanors as shown above. In the Krue-gel Case he had been fined in 1905 in the justice’s court $25 for carrying a pistol.. He appealed to the county court of Dallas county, and was again therein convicted and fined $100. The opinion therein states that he—

“filed a. motion in the county court to dismiss the appeal on the ground that the county court of Dallas county did not have jurisdiction of said appeal, inasmuch as there was a criminal district court in Dallas county, and all appeals from the justice’s court should be prosecuted to said criminal district court, and not to the county court.”

His motion was overruled, and he appealed to this court, which held that said Dallas county court had jurisdiction of said appeal, and that said criminal district court did not have. It is true, in said act vesting jurisdiction in said Dallas county court, the Legisla- - ture, in the emergency section, expressed “a desire” that the jurisdiction of said Dallas county court should remain as it had been. While the Legislature in this instance, in re-vesting jurisdiction in the county court of Nueces county, did not- express such a desire, there can be no doubt, from said acts and what it did and did not do, • that it was the clear intention of the Legislature, as much so as if it had expressly said so, that said jurisdiction should remain in said county court, where it had expressly placed it, and that no original or appellate jurisdiction of misdemeanors was placed or intended to be placed in said criminal district court.

Therefore the judgment of the lower court remanding appellant to the custody of the sheriff was correct, and the judgment is affirmed.
      @=>For other cases see same topic and KEY-NUMBER ill all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: PRENDERGAST, J.

license: Public Domain

text:
    WRIGHT v. STATE.
    (No. 5029.)
    (Court of Criminal Appeals of Texas.
    May 15, 1918.)
    1. Intoxicating! Liquoes @=3205(2) — Indictment — Sufficiency.
    In view of Acts 31st Leg. (1st Called Sess.) c. 35 (Pen. Code 1911, art. 597), and Code Or. Proc. 1911, art. 464, relating to sales of intoxicating liquors, and article 453, relating to certainty in indictments, and Acts 30th Leg. (1st Called Sess.) c. 8 (Itev. St. 1911, art. 5728), relating to local Option elections, to show the prohibition law was in effect, an indictment need only allege that a prohibition election was held, that the result was declared by an order of the commissioners’ court, and that an order was made prohibiting the sale of liquor.

      2. Intoxicating Liquors <§=336(5) — Local Option Elections — Validitt — Presumptions.
    Acts 30th Leg’. (1st Called Sess.) c. 8 (Rev. St. 1911, art. 5728), providing that if local option election is not contested within 30 days as therein prescribed it is conclusively presumed valid, is binding on all courts and all persons.
    3. Criminal Law <§=31144(13) — Appeal—Matters Revibwable.
    In prosecution for violation of local option law, where there is no statement of facts, it will be concluded -on appeal that everything necessary to be proved to put the prohibition law in force was proved.
    Appeal from District Court, Bowie County; H. p. O’Neal, Judge.
    Bennie Wright was convicted of a violation of the prohibition law, and he appeals.-
    Affirmed.
    Sid Crumpton, of Texarkana, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

This is an appeal from a conviction for the violation of the prohibition law in Bowie county — a felony.

There is neither a statement of facts nor a bill of exceptions in the record. The charge of the court, which was in no way excepted to, among other things, instructed the jury .that appellant stood charged by indictment with unlawfully having sold intoxicating liquor to C. C. Babb on or about November 5, 1917, in Bowie county, Tex., “after the sale of intoxicating liquors had been prohibited by law in said county, and that he pleaded not guilty.” Further: “You are instructed that the sale of intoxicating liquors has been prohibited by law in Bowie county since the 15th day of April, 1910.” The beginning and conclusion of the indictment are regular and in the usual form. Then it alleges:

“That Bennie Wright in said county and state (in which said county the sale of intoxicating liquor had been prohibited under the laws of said state), on or about November 5, 1917, did then and there unlawfully and willfully sell to O. G. Babb intoxicating liquor after an election had been held March 5, 1910, in said Bowie county by the qualified voters thereof in accordance with the law to determine whether or not the sale of intoxicating liquors should be prohibited in said Bowie county, and the commissioners’ court of said county had duly made, passed, and entered its order declaring the result of said election and prohibiting the sale of intoxicating liquor in said Bowie county as required by said law, and the county judge of said county had caused said order to be published in the manner and form and for the length of time required by law.”

No motion was made to quash the indictment, nor was it in any way attacked before the conviction. After the conviction appellant made a motion for a new trial and to arrest the judgment on the grounds that the indictment failed to allege: (1) That at said election so held it resulted in prohibiting the sale of such liquor in said county; (2) that at such election the majority of the qualified voters voted in favor of prohibiting the sale of such liquors; (3) that upon such a | result the commissioners’ court declared the result of said election in said county.

The indictment, as seen therefrom, plainly avers: (1) That on March 5, 1910, an election was held in Bowie county, by the qualified voters thereof, to determine whether or not the sale of intoxicating liquors should be" prohibited therein; (2) and the commissioners’ court of said county had duly made, passed, and entered its order declaring the result of said election and prohibiting the sale of such liquor in said county; (3) that on or about Novémber 5, 1917, appellant in said, state and county, unlawfully and willfully sold such liquor to said Babb ; (4) that at the time he made that sale, the sale of such liquor had been prohibited in said county under the laws of said state.

The statute prescribing said offense (article 597, P. 0., by the Acts 1909, p. 356) is:

“If any person shall sell any intoxicating liquor in any county * * * in which the sale of intoxicating liquors shall hereafter be prohibited under the laws of this state, * * * he shall be - punished by confinement in the penitentiary,” fixing the term.

Article 464, O. C. P., is:

“Selling Intoxicating Liquor; Sufficient Allegations as to.- — In an indictment for selling intoxicating liquors in violation of any law of this state, it shall be sufficient to charge that the defendant sold intoxicating liquors contrary to law, naming the nerson to whom sold, without stating the quantity sold; and, under such indictment, any act of selling in violation of the law may be proved.”

See, also, articles 453 and 460, C. C. P.

The averments in the indictment herein completely comply with these statutes, and are all, if not more, than are necessary to charge the offense. The averments in said indictment necessarily include and embrace each of the averments which appellant claims was omitted therefrom, even if it could be held, they were omitted or necessary. Holloway v. State, 53 Tex. Cr. R. 246, 110 S. W. 745; Williams v. State, 52 Tex. Cr. R. 431, 107 S. W. 825; Stephens v. State, 97 S. W. 485; Shilling v. State, 51 S. W. 241. See, also, other cases cited in section 1222, 1 Branch’s Ann. P. C.

By Acts 1907, p. 447, now article 5728, R. S., any one who desires to contest any prohibition election shall do so in the district court within 30 days after the result thereof is declared by the commissioners’ coqrt. In such contest the district court has exclusive jurisdiction to determine all questions relative to the legality and validity of said election, etc., to try and determine all matters connected therewith, including the petition therefor, and all proceedings and orders relative thereto, embracing final count, and declaration and publication of the result putting local option into effect. The result of such contest shall finally settle all questions relating- to the validity of said election, and it shall not be permissible to again call the legality of said election in question in any other suit or proceeding; “and if no contest of said election is filed and prosecuted in the manner and within the time provided above, it shall be conclusively presumed that said election as held and the result thereof declared are in all respects valid and binding upon all courts.”

The record herein in no way shows or intimates that any such contest was filed. Hence it is conclusive there was none. Under such circumstances, this- court has all the time and in a large number of cases held that said law binds and is conclusive on this and all other courts, and upon all persons. Some of them are cited in 1 Branch’s Ann. P. C. § 1228.

Under said act and the other laws, at most, all that is required to allege to show the prohibition law is in force, and as to such matter make a good indictment, is that such prohibition election had been held (Nobles v. State, 71 Tex. Cr. R. 123, 158 S. W. 1133, and cases there cited), the result thereof declared by an order of the commissioners’ court, and an order of the commissioners’ court made and entered prohibiting the-sale of such liquor, and that such order had been duly published in accordance with law. This indictment did all this, and more, too, as shown above.

In Doyle v. State, 59 Tex. Cr. R. 61, 127 S. W. 815, this court, through Judge Ramsey, after citing said act of 1907 above, said:

“Wo must and shall assume that the judgment and decree putting local option in force, and the proclamation of the county judge, had the effect to institute the law in that cour,ty, and that this presumption and conclusion are conclusive on us and on appellant.”

As there is no statement of facts, we must conclude that everything necessary to be proved to put the prohibition law in force was proved.

The judgment' is affirmed.
      (fc^For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <@^>For other cases see same tonic and KEY-NUMBER, in all Key-Numbered Digests and Indexes *


author: PLY, C. J.

text:
    ST. LOUIS, B. & M. RY. CO. et al. v. MOSS.
    (No. 6022.)
    (Court of Civil Appeals of Texas. San Antonio.
    April 24, 1918.)
    1. Evidence <§=>587 — Circumstantial Evidence.
    A fact may be proved by circumstantial evidence alone which does not exclude every other hypothesis; it being sufficient if the ■ circumstances establish a preponderance of the evidence in favor of the fact to be proved.
    2. Cabkieks <§=>228(5) — Shipment oe Stock-Evidence.
    In shipper’s action for negligent handling of carload of bulls, evidence held not to show defendant was negligent.
    3. Cabriebs <§=>217(2) — Shipments oe Stock —Contributory Negligence.
    If the negligence of plaintiff shipper, in placing vicious bulls unconfined in a car together, contributed to injury to them, he could not recover, and his negligence need not have been the sole proximate cause of injury.
    4.Negligence <§=>82 — Action—Defense.
    Contributory negligence is a complete defense to an action based on defendant’s negligence, whether it caused the injury alone or concurred with the negligence of defendant in producing the result.
    Appeal from (Refugio County Court; Eugene Low, Judge.
    Suit by G. W. Moss against the St. Louis, Brownsville & Mexico Railway Company and another. Judgment for plaintiff, and defendants appeal.
    Reversed and remanded.
    E. H. Crenshaw, Jr., of Kingsville, and Proctor, Vandenberge, Crain & Mitchell, of Victoria, for appellants. J. Turner Vance, of Refugio, for appellee.
   PLY, C. J.

Appellee sued appellants, the one named in the style of this case and the Gulf, Colorado & Santa Fé Railway Company, to recover damages alleged to have arisen through the negligent handling of a carload of bulls, shipped from Refugio, Tex., to Ft. Worth, Tex., on November 17; 1916. The cause was submitted to a jury on special issues and a judgment, .supposedly based on the answers of the jury, was rendered in favor of appellee for $411.01 against both railways. The evidence showed that four of the bulls were dead in the car when they reached Bay City, at the junction of the line of the initial carrier and the connecting carrier, and all the evidence tended to show that they were killed by other hulls, in fights which it was proved were taking place at every point where they were noticed.

It is not contended by appellee that any negligent handling of the dead bulls was proved, but the contention is that there was “only circumstantial evidence that the bulls injured themselves, and it does not exclude the hypothesis that they might have been injured otherwise.” A fact can be proved by circumstances as well as by direct testimony, and we know of no rule that such circumstantial evidence must exclude every hypothesis- that something might have happened other than the fact established by the circumstantial evidence. If the circumstances establish a preponderance of the evidence in favor of a certain proposition, it is proved. All the circumstances in this case, however, point to the irresistible conclusion that the bulls were killed by their companions. No negligence was shown on the part of the carrier in connection with the four dead bulls,' but they were fighting all along the way, and when one, was down and attempted to rise the bulls standing would toss him on their horns to the other end of the car, and some of the bulls were shown to be very vicious, and ten of them had to be tied at Bay City to prevent fighting. There was positive testimony by witness Toups that “the dead bulls that were taken out of the car at Bay City were knocked down and trampled to death hy the other bulls.” The jury found that the bulls fought in the loading pens and while being loaded; that they were ■ inherently vicious, and , the appellee knew the fighting qualities of the bulls; and yet in the face of all the testimony the jury answered that the failure to tie the bulls and the fighting instincts of the bulls was not the “sole proximate cause” of their death. The jury found, however, that there was no evidence to show what causes other than the fighting contributed to the death of the two bulls that died after being taken from the car, and of course they could not find any other causes than the fighting as to the four dead bulls. As requested by appellants, the jury should have been instructed that they should not consider the four dead bulls or the wounded ones found in the car at Bay City in making up their verdict.

There was no evidence whatever of negligent handling of the cattle by the initial carrier, but, on the other hand, the proof was positive that the train received the “usual halndlinglof such trains. There was no unusual stopping, bumping, or jolting,” and there were no delays, and when the train reached Bay City the car containing the bulls was placed, in about 15 or 20 minutes, on the transfer track of the .connecting carrier, the Gulf, Colorado & Santa Fé Railway Company. In spite of this testimony ■the jury found that the shrinkage in the weight of the fourteen bulls that reached Ft. Worth was due to “neglect in transportation over the St. Louis, Brownsville & Mexico Railroad Company.” According to the answers of the jury the whole of the damage occurred before the cattle were delivered by the initial to the connecting' carrier. All of the bulls that had horns were tied at Bay City, and it is a significant fact that none of the animals were hurt after that was done. It could not have been the delay on the siding at Bay City that caused the death of the six bulls, for the uncontroverted evidence showed that four were dead when they reached Bay City and two were injured and down and could not get up although an effort was made to get them up. The cattle were delivered to the connecting carrier by the initial carrier at 12:30 a. m., about 8 hours and 45 minutes after they started from ¡Refugio. It was not contended that there was any delay in making the run from Refugio to Bay City. It does not appear that there was a contract limiting the liability of the initial carrier ' to its own line, and none seems to have been necessary, because the whole of the damages is attributed by the jury to the neglect of the initial carrier in transporting the cattle from Refugio to Bay City. That finding was equivalent to a conclusion that there was no negligence after the cattle reached Bay City, and there being no evidence, of negligence before the cattle reached Bay City, there is no basis for the judgment. The verdict cannot be tortured into a finding that it was negligence to allow the cattle to remain in the car on the transfer switch of the connecting carrier, for the jury distinctly found that the whole negligence occurred “in transportation” of the cattle on the line of the initial carrier.

The jury found that the bulls were inherently vicious and full of fighting qualities, but the court failed and refused to permit the jury to pass on whether that vice was the proximate cause of the death of the six bulls and the injury to the Others, although the testimony, which is not assailed, showed that they were gored, bruised, and injured in a way clearly indicating that such injuries had resulted from the attacks of one upon the other. The court proceeded upon the theory that in order to preclude a recovery the negligence of appellee in placing vicious bulls unconfined in a car together must have been the sole proximate cause of the injury to the bulls, while the law is that if the negligence of appellee contributed to the injury to the bulls he could not recover. Contributory negligence is a complete defense to an action based on the negligence of the defendant, whether it caused the injury alone, or concurred with the negligence of the defendant in producing the result. This is the rule in every case in which a different rule is not laid down by statute, as in cases of comparative negligence. Any negligence of a plaintiff which is a proximate cause of the injury of which complaint is made will' prevent a recovery, no matter how negligent the defendant may have been. Andrews v. Mynier, 190 S. W. 1164; Railway v. Foth, 45 Tex. Civ. App. 275, 100 S. W. 177; Id., 101 Tex. 133, 100 S. W. 171, 105 S. W. 322; Brewing Association v. Wolfshohl, 155 S. W. 644.

Under the facts of this case a verdict as to the six dead bulls, as well as for shrinkage of the remaining fourteen, should have been instructed for appellants, apd this court would render judgment for appellants, were it not apparent that the case has not been fully developed as to the shrinkage of the animals from the time they were placed on the transfer switch at Bay City until they were delivered in Ft. Worth, and while it would be extremely difficult, as suggested by appellant, to separate any shrinkage in the weight of the cattle arising from delay in transportation from the shrinkage resulting from the combative propensities of the bulls, still it is possible that it may be done, and we feel that it is just to allow another opportunity to separate the damages if possible. It does not appear that the vicious propensities of the bulls were indulged in after the cattle left Bay City, as those with horns were tied. It does not appear that the four hornless bulls that were loose in the car indulged in the pastime of battering their fellows with their heads, thereby producing not only discomfort but broken ribs and bruises. There was no development of what was done after the animals left Bay City, except that there was a probable delay in transportation. Of course, in considering the question of shrinkage, that arising from the wounds, bruises, and bad condition of the cattle caused by the fighting should not be taken into consideration.

The judgment is reversed, and the cause remanded.
      íí=>Eor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: LANE, J.

text:
    CONTINENTAL CASUALTY CO. v. CHASE.
    (No. 7567.)
    (Court of Civil Appeals of Texas. Galveston.
    April 17, 1918.
    Rehearing Denied May 16, 1918.)
    1. Judgment @=256(6) — Conformity with Vekdict — Amount.
    Where jury found insured to have been disabled for 21 weeks and 3 days, it was error to render judgment for the benefit of 39 weeks in view of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1990, requiring that where a special verdict is rendered the court must render judgment thereon, unless it is set aside and new trial -is granted.
    2. Appeal and Eeeoe @=1151(2) — -Disposition— Reforming Judgment.
    Where jury found on special verdict that insured was disabled for 21 weeks and 3 days, the court’s error in rendering judgment for 39 weeks did not require reversal, where there was sufficient evidence to sustain the verdict, and the judgment would merely be reformed.
    3. Insurance @=665(5) — Health and Accident Insurance — Death from Accident-Violation of Law.
    Evidence held to sustain verdict for insured on accident policy as against insurer’s contention that he was injured as the result of violation of the law in assaulting another.
    4. Appeal and Error @=742(5) — Assign-me nts — Statement.
    In a cause tried prior to amendment of Vernon's Sayles’ Ann. Civ. St. 1914, art. 1974, by Acts 35th Leg. c. 177 (Vernon’s Ann. Civ. St. Supp. 191S, art. 1974), refusal of requested charges will not be reviewed, unless the record shows an exception thereto at proper time with proper bill of exceptions and reference to the page of the record where the exception may be found, in view of court rule 31 (142 S. W. xiii), as to the record on appeal.
    lAppeal .from 'Galveston County ¡Court,; George E. Mann, Judge.
    Action by Fred W. Olíase against the Continental Casualty Company. Judgment for plaintiff, and defendant appeals.
    Reformed and affirmed.
    F. Spencer Stubbs and James B. & Charles J. Stubbs, all of Galveston, and Mantón Maverick and M. P. Cornelious, both of Chicago, Ill., for appellant. Marsene Johnson, of Galveston, A. F. Jatho, of Miami, Okl., and Elmore Johnson and Roy Johnson, both of Galveston, for appellee.
   LANE, J.

This suit ivas brought by ap-pellee, Fred W. Chase, against appellant, Continental Casualty Company, to recover under a certain policy of insurance issued by appellant to appellee, which, among other things, contains the following:

“In consideration of the warranties and agreements contained in the application here-for and the payments of premium as therein-provided, .does on this 2d day of December, A. D. 1907, hereby insure Mr. Fred W. Chase-(herein called the insured), in class Ord. of the-company, ás a teamster and contractor in the-principal sum of five thousand dollars, with weekly indemnity of twenty-five dollars, and subject to the conditions hereinafter specified promises to pay to the insured or to his beneficiary, Mrs. Carrie A. Chase, his wife, indemnity as scheduled below, in the event that said insured, while -this policy is in force, shall receive personal bodily injury, which is effected directly and independently of all other causes through external, violent and purely accidental means (suicide, sane or insane, not included), and which causes at once total and continuous inability to engage in any labor or occupation, and provided that neither such injury nor inability is in consequence of nor contributed to by .any bodily or mental defect, disease or infirmity of the insured. * * *
“Part II. Weekly Indemnity. For Loss of Time.
“If such injury shall not result in any of the losses scheduled in part I, the company will pay said weekly indemnity for total loss of time necessarily resulting from injury as-before described, for such period, not exceeding fifty-two consecutive weeks, as the insured shall be under the treatment of a legally qualified' physician or surgeon by reason of such injury.
“Part III. Special Indemnities.
“In any of the losses covered by this policy and specified in parts I or II, (1) where the accidental injury causing the loss results from voluntary exposure to unnecessary danger or obvious risk of injury, or from the intentional act of the insured or of any other person (assaults committed upon the insured for the sole purpose of burglary or robbery excepted); (2) where the accidental injury causing the loss, results from or is received while - quarreling,, fighting or violating the law — then and in all cases referred to in this part III, the amount payable shall be one-tenth of the amount which otherwise would be payable under this policy, anything in this policy to the contrary notwithstanding, and subject otherwise to all the conditions in this policy contained.”

Appellee alleged in his petition:

“That on or about said July 3, 1914, plaintiff accidentally fall off a large float or dray then-in motion, in said county of Galveston, Tex., and that the wheels of said vehicle ran over him, causing him to be badly injured in his head, back and all over his body and limbs, and causing him to be severely injured in his-body, head, neck, back, arms, spine, back and' limbs and causing 1pm to be confined to his bed' for- more than three months and causing him to be totally incapacitated and unable to perform. any part of his duties and work for a period of tliirty-nine weeks from the date of said' injuries. That the contract of insurance issued to the plaintiff by the defendant provided that in the event the plaintiff suffered and sustained injuries b,y accident, that it would pay to plaintiff the sum of $25 per week during such time as the plaintiff was totally and wholly incapacitated from performing all of his duties. • That by reason of the matters alleged the Continental Casualty Company became indebted to him and promised by said contract of insurance to pay to him the sum of $25- per week from said July 3, 1914, up to and including the week ending October 12, 1914, said weekly indemnity, as specified in said contract of insurance, amounting to the total sum of $975.”

Appellant, the casualty company, answered by general denial and special plea as follows:

“That by the contract of insurance between plaintiff and defendant ‘where the accidental injury causing the loss results from voluntary exposure to unnecessary danger or obvious risk of injury, or from the intentional act of the insured or any other person (assaults committed upon the insured for the sole purpose of burglary or robbery excepted), or from the insanity of the insured or any other person, or from voluntary overexertion on the part of the insured; or (2) where the accidental injury causing the loss results from or is received while quarreling, fighting or violating the law, then and in all cases referred to in this part XI, the amount payable shall be one-tenth of the amount which otherwise would be payable under this policy, anything in this policy to the contrary notwithstanding, and subject to all the conditions in this policy contained.’ And defendant alleges that the injury causing the loss, as defendant is informed, believes, and avers, resulted from and were received while plaintiff was quarreling, fighting, and violating the law, and from voluntary exposure to unnecessary danger and obvious risk of injury, and from the intention of a person named J. W. Bracken, as defendant is informed; that plaintiff attacked and struck said Bracken from behind with a heavy piece of wood or iron whilst the latter was driving a float, and thereby engaged in lighting and quarreling with the said Bracken and in violation of law, on said float while it was moving, and thereby exposed himself to unnecessary danger and obvious risk of injury, and he (said plaintiff) was knocked, pushed, or thrown by said Bracken, and his head was injured or skull fractured, and he was severely beaten by said Bracken with the piece of wood or iron with which the plaintiff assaulted the said Bracken, and which said Bracken took away from the plaintiff in the fight that plaintiff started, and thrown off the float onto the hard street or pavement, bruising and injuring plaintiff, and if plaintiff was run over by the float, and if he was injured thereby, such injury was only a pai’t of the injuries received by him, and all the injuries received by plaintiff whilst violating the law by fighting were intentionally inflicted on him by the party whom he attacked on the moving float, and with whom he was fighting on the moving float, and in violation and in disregard of his contract with this defendant and the terms of the contract, and thereby plaintiff is not entitled to recover more than one-tenth of the amount which otherwise would be payable under the terms of this policy in the event of any liability by defendant for such injuries. And defendant says that the contract between plaintiff and defendant was and is that defendant would • pay indemnity as scheduled in the policy only in the event that said plaintiff shall receive personal, bodily injury, which is effected directly and independently of all other causes through external, violent, and purely accidental moans, and which causes at once total and .continuous inability to engage in any labor or occupation, and provided that neither such injury nor inability is in consequence of nor contributed to by any bodily or mental defect, disease, or infirmity of the insured, and defendant alleges that the injuries to plaintiff were not purely accidental means, but were directly or indirectly caused by the party with whom the plaintiff was fighting, and who in his own defense resisted plaintiff’s attack upon him, and severely beat and bested plaintiff, pushing, throwing, or knocking plaintiff to the ground or pavement, breaking the head or skull or other members of plaintiff’s body as hereinbefore alleged, and causing plaintiff to be run over by the wheel of his own float, and all of plaintiff’s alleged injuries were intentionally inflicted, and were not caused directly and independently of all other causes through purely accidental means, and the injury and loss is therefore not included in the agreement of the parties, and plaintiff is not entitled to be paid anything according to the terms of the contract.

Tlie case was submitted to a jury upon special issues as follows:

(1) Was plaintiff, Chase, knocked off the float by the driver as he attempted to get on the float?

(2) Did plaintiff, Chase, strike the driver with an iron pipe?

(3) Was plaintiff, Chase, thrown off the float in a fight with the driver?

(4) Were the injuries that incapacitated Chase from work caused by the float running over his body?

(5) How many weeks was Chase totally and continuously unable to work at his business by reason of Ms injuries?

To these issues the jury answered as follows: First, Yes; second, No; third, No; fourth, Yes; and the fifth, 21 weeks and 3 days. In other words, the jury found: First, that appellee Chase was knocked off a moving float by Bracken, the driver thereof, as Chase was attempting to get on the same; second, that Chase did not strike the driver, nor was he fighting the driver'at the time he fell or was thrown from the float; third, that the injury which incapacitated him from the performance of his work was caused by the float running over his body; and, fourth, that such injury incapacitated Chase for a period of 21 weeks and 3 days.

Notwithstanding the fact that the jury had found that appellee, Chase, was totally and continuously unable to work at his business by reason of his injuries for 21 weeks and 3 days only, the trial court disregarded such finding, and rendered judgment in favor of appellee for the sum of $975; said sum being arrived at by allowing appellee $25 per week for 39 weeks, as claimed by him. From this judgment the Continental Casualty Company has appealed. •

By its first assignment appellant insists that the trial court erred in disregarding the finding of the jury that Chase was disabled for 21 weeks and 3 days only, and in rendering judgment, based upon the court’s finding, that such disability was for a term of 39 weeks. The assignment must be sustained. By article 1990, Vernon’s Sayles’ Civil Statutes 1914, it is provided that:

“In all cases where a special verdict of the jury is rendered, * * * the court shall, unless the same be set aside and a new trial granted, render judgment thereon.”

By an unbroken line of decisions of this state it has been held that it is made the duty of the court to enter its judgment in conformity with the verdict, whether it be correct or not, even though the uncontradict-ed testimony is adverse to the verdict. Akin v. Jefferson, 65 Tex. 137; Brown v. Renfro, 57 Tex. 332; Fant v. Sullivan, 152 S. W. 521, and cases there cited; Ketchum v. Boggs, 194 S. W. 201; Darden v. Taylor, 60 Tex. Civ. App. 73, 126 S. W. 944; Waller v. Liles, 96 Tex. 22, 70 S. W. 17; Ablowich v. Bank, 95 Tex. 432, 67 S. W. 79, 881. In the case of Waller v. Liles, supra, the trial court disregarded the verdict of the jury, and rendered judgment contrary thereto. On appeal to the Court of Civil Appeals that court certified to the Supreme Court the following question;

“Whether or not, where, as in this case, the. special verdict finds upon a material issue contrary to the undisputed evidence, the court may disregard the finding and enter judgment in accordance with the testimony, rather than upon the verdict.”

Answering this question the court said:

“It is deducible from the ruling in that case that the findings of the jury upon the issues made by the pleadings in a case, although against the undisputed evidence or without evidence to support them, cannot be disregarded, but must constitute the only basis upon which any proper judgment can be rendered. * * * We answer the first question in the negative.”

The further citation of authorities to sustain the assignment is unnecessary.

We have reached the conclusion, however, that this error will not require us to reverse the judgment and remand the cause, as there is sufficient evidence to sustain the verdict of the jury; therefore the judgment of the trial court should he so reformed as to enter judgment for appellee for the sum of $527.50, such sum being arrived at by allowing appellee $25 per week for 21 weeks and 3 days, thus conforming the judgment to the verdict of the jury.

The second assignment is as follows;

“The court erred in rendering judgment for 39 weeks total disability at $25 per week, because the same is contrary to the law and the ■evidence.”

. A complete answer to this assignment is made by what has been said under the first .assignment. Under that assignment we held that the court did err in rendering judgment in favor of appellee for 39 weeks, and it is therefore unnecessary to repeat the reasons there' given to again sustain the same complaint.

This assignment, however, is followed by the contention that the policy of insurance upon which this suit is founded provides, among other things, that when the accidental injury causing the loss results from voluntary exposure to unnecessary danger, or obvious l'isk of injury, or from the intentional act of the insured or any other person, or where the accidental injury causing the loss results from, or is received while quarreling, fighting, or violating the .law, the amount payable shall be only one-tenth of $25 per week during the time of incapacity to labor; that the evidence shows: First, that appellee, Chase, was injured while voluntarily exposing himself to unnecessary danger or obvious risk, by boarding a float while in rapid motion; second, that Chase was intentionally struck and knocked off the moving float by the driver of the float, and that by reason thereof the float ran over his body and caused the injury of which he complains; third, that Chase received his injury while quarreling and fighting, and therefore he cannot recover under the policy more than one-tenth of $25 per week during his incapacity to perform his labors.

We cannot sustain this contention. The evidence shows that the float and team drawing the same were under the control and management of Chase, and there was sufficient evidence to justify a finding that the driver was driving said team at a reckless rate of speed in a public street of the city of Galveston, and that Chase boarded the float for the purpose of having the driver check his speed; that as he boarded the float the driver struck him with a cotton hook, and that he either accidentally fell from the float or was knocked off by the driver, and that by accident the float passed over his body and caused the injury which caused his incapacity to perform his labors. We do not think that under the evidence we would be justified in finding that Chase unnecessarily exposed himself to danger or risk, or that the injury complained of was intended by the driver, or that Chafee was quarreling or fighting the driver at the time or just before the accident. These were questions for the jury and the trial court to 'determine from the evidence, and they found them in favor of appellee, Chase. We overrule the assignment.

The third assignment complains of the several paragraphs of the charge of the court because they fail to submit to the jury certain issues thought necessary by appellant. The complaint is not that the charge was erroneous as far as it went, but only that it did not submit all the issues which should have been submitted.

We think it well settled that prior to the amendment of article 1974 by Acts 35th Leg. 1917, p. 389 (Vernon’s Ann. Civ. St. Supp. 1918, art. 1974), where a case is submitted on special issues neither party can complain that the court did not submit other issues, unless such party requests the same in writing before the main charge is submitted to the jury, and unless in case of refusal such party shall reserve a bill of exceptions thereto. In a statement under this assignment it is stated that appellant requested the court to submit to the jury the issue of proximate cause of plaintiff’s injuries, but there is nothing in the statement to show that an exception was taken to tile refusal of tlie court to submit the requested charge. This court will not consider an assignment complaining of the refusal of the trial court to submit requested charges in causes tried prior to the taking effect of the amendment by Acts 35th Leg. 1917, to article 1974, Vernon’s Sayles’ Civil Statutes 1914, unless it be shown by the statement in the brief that such refusal was excepted to at the proper time, and a proper 'bill of exceptions reserved to such refusal, and reference made to the page of the record where such exception may be found; and especially so where there are 37 bills of exception in the record, as in this case, and where the pages of the record where the hills, if any, may be found are not given. Carlock v. Willard, 149 S. W. 363; Oster v. Oster, 130 S. W. 265; M., K. & T. Ry. Co. v. Moore, 47 Tex. Civ. App. 531, 105 S. W. 532; Sullivan v. Solis, 52 Tex. Civ. App. 464, 114 S. W. 456. The third assignment is overruled. The fourth assignment is overruled for the same reasons given for overruling the third assignment. This court cannot consider assignments complaining of the refusal of requested charges in cases tried prior to the taking effect of Acts 35th Leg. p. 389, unless a bill of exceptions is reserved to such refusal, and unless the statement under the assignment refers us to the page of the record wherein such bill can be found. G., C. & S. F. Ry. Co. v. Dickey, 108 Tex. 126, 187 S. W. 184; rule 31 (142 S. W. xiii) for Courts of Civil Appeals. See, also, authorities cited under the discussion of the third assignment. There is no reference-to a bill of exception in the statement under the assignment. Assignments 5 to 15, inclusive, in different forms practically present the same or similar complaints to those presented by assignments 3 and 4. The same may be said of all of them as has been said with reference to said assignments 3 and 4. They are all overruled. For the reasons hereinbefore pointed out, the judgment of the trial court is here reformed, so that judgment will be here entered in favor of appellee, Fred W. Chase, against appellant, Continental Casualty Company, for the sum of $527.50, instead of for the sum of $975, as rendered by the trial court, and as thus reformed the same is in all things affirmed.

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


author: BROOKE, J.

text:
    FIDELITY LUMBER CO. v. BEAN.
    (No. 370.)
    (Court of Civil Appeals of Texas. Beaumont.
    May 9, 1918.)
    1. Justices of the Peace ®=»174(S) — Appeal-Amendment or Pleading.
    In an action for the value of a mare killed by defendant’s log train, plaintiff’s oral plea in the county court on appeal from justice court, stating that the mare was killed by the negligence of defendant, held not subject to objection that it essentially changed cause of action.
    2. Justices oe the Peace @t=90 — Oral Pleadings — Sufficiency in General.
    In view of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2326, providing that pleadings in the justice courts shall be oral, except when otherwise especially provided, the particularity required in written pleadings is not necessary in the oral statements in the justice court.
    3. Justices of tiie Peace @=3174(22) — Re-pleading in County Court — Rules Applicable.
    The pleadings on appeal from a justice court to the county court are governed by the rules applicable to justice courts, and the parties are entitled to replead in county court, without complying with rules of pleading applicable to cases originating in county courts.
    4. Justices of ti-ie Peace @=>174(22) — Appeal to County Court — Oral Amendment of Pleading.
    Where pleadings in justice court are oral, amendments in the county court may also be oral.
    5. Justices of the Peace @=»174(26) — Negligence — Issues, Proof, and Variance.
    In action for value of plaintiff’s mare killed by defendant’s log train, plaintiff’s oral justice court pleading as orally amended in county court held sufficient to permit evidence that mare was negligently killed by defendant.
    Appeal from Tyler County Court; W. A. Johnson, Judge.
    Suit in justice court by Mack Bean against the Fidelity Lumber Company. There was judgment for plaintiff, and from decision rendered by county court on appeal, defendant appeals.
    Affirmed.
    Thomas & Wheat,- of Woodville, for appellant. J. A. Mooney, of Woodville, for appel-lee.
   BROOKE, J.

This suit was brought by ap-pellee, Mack Bean, in the justice’s court, precinct No. ,1, Tyler county, against appellant, Fidelity Lumber Company, for $125, the alleged value of one mare killed by the appellant’s log train in Tyler county on or about August 10, 1916; said mare being the property of appellee. A judgment for $100 and costs was rendered by the justice’s court in favor of appellee, from which judgment an appeal was taken to the county court of Tyler county, and duty perfected. The cause was tried on September 18, 1917, before the county court, without a jury, and resulted in a judgment for appellee in the sum of $125 and costs.

The issues made by the pleadings in the justice’s court were as follows:

“The value of one mare killed by the defendant’s log train in Tyler county, Tex., on or about .the 10th of August, 1916, and same being plaintiff’s property and of the value of $125.”

An additional oral plea noted on the justice’s docket was made as follows:

“That defendant operates a railroad in Tyler county, Tex., and was operating said train on the date- of the alleged injury of plaintiff’s horse, to wit, August 10,1916; that said railroad was not fenced at the place, and that said defendant with its train consisting of an engine and logs killed bay mare, same being the property of plaintiffs and of the value of $125, and defendant refuses to' pay same or any part thereof.1'

In the county court appellee pleaded orally that he was the owner of one bay mare of the value of $125, and that on or about August 16, 1916, said mare was MUM by the negligence of defendant. In the county court appellant filed its written motion to strike out the plaintiff’s oral pleadings in said court, which alleged a 'new cause of action, and because the plea or averment that defendant negligently killed his horse was insufficient and should state at least general negligence in some particular, and because oral pleadings cannot be made on appeal in the county court. Said written motion to strike out said oral pleadings was overruled. The case is now before this court for review.

The first assignment of error seems to have grouped the second and fifth assignments, and the same will be considered together, as follows:

(a) “The court erred to the prejudice of defendant in overruling its motion to strike out plaintiff’s oral pleadings in the county court to the effect that his horse was killed by the negligence of defendant, because such plea of negligence is made for the first time in county court on appeal, and because it does not state in' what particular the defendant was negligent.”
(b) “The court erred in overruling defendant’s motion to strike out the plaintiff’s oral plea in the county court to the effect that his horse was killed by the negligence of defendant, because such plea could not be made for the first time on appeal in the county, and because it does not state in what particular the defendant' was negligent, and because such plea cannot be made by oral pleadings in the county court, but should be by written pleadings in the form of amended pleadings, if made at all.”

The proposition urged, under this assignment is that the cause of action pleaded in county court on appeal must not only be similar, “but essentially identical”; that is, the capse so pleaded on appeal in county court must be such that the same evidence will support both of the pleadings, and the allegations must be subject to the same defense.

Article 2326, Vernon’s Sayles’ Civil Statutes 1914, provides that the pleadings in the justice’s court shall be oral, ezcept where otherwise specially provided, but a brief statement thereof may be noted on the docket. Construing the article, the decisions are to the effect that the fullness and particularity required in written pleadings are not necessary in the oral statements in the justice’s court, and that even the form of an account will not' prejudice the rights of the plaintiff as disclosed by the evidence, and it has further been held that a pleading in justice’s court, though in writing, need not be more specific than if the case had been tried on oral statements of the cause of action ; and the effect of this article is that no rule is prescribed except that the statement, which may be made by the parties, may be oral, and shall be entered on the docket by the justice of the peace. The form in which the cause of action or ground of defense is so stated is of no importance, and if from all that is stated, oral or written, the court can ascertain what right the plaintiff asserts and what defense the defendant interposes, the pleading is sufficient. Rector v. Orange Rice Mill Co., 100 Tex. 591, 102 S. W. 402. It has also been held that the pleadings on an appeal from a justice’s court to the county court are governed by the rules applicable to justices’ courts, and that parties to an action originating in the justice’s court were entitled to replead in the county court without complying with the rules of pleading applicable to eases originating in the county court (Threadgill v. Shaw, 130 S. W. 701; Barnes v. Sparks, 62 Tex. Civ. App. 451, 131 S. W. 610), and, in the same connection, that the parties in an action originating in the justice’s court may orally replead in the county court (Loomis v. Broaddus & Leavell, 134 S. W. 743), and, further, that pleadings on appeal from- justice’s court need not be in writing, and oral amendments can be made (Daniel v. Brewton, 136 S. W. 815). It has also been held that on appeal from justice’s court pleadings may be amended. G., H. & S. A. R. Co. v. Herring, 28 S. W. 580; Clements v. McCain, 49 S. W. 122; Von Boeckmann v. Loepp, 73 S. W. 849; City of Van Alstyne v. Morrison, 33 Tex. Civ. App. 670, 77 S. W. 655; Fowler v. Michael, 81 S. W. 321. Also it has been held that a new cause of action or defense cannot be pleaded in the county court. Wright v. Dodson, 93 S. W. 1075; Wooley v. Corley, 57 Tex. Civ. App. 229, 121 S. W. 1139; Amarillo Com. Co. v. Chicago, R. I. & G. Ry. Co., 140 S. W. 377.

The rules of pleading ifi the justice’s court are very liberally construed by the courts, and in the matter complained of the mere fact that it was the same cause of action, that is, the action was for the killing of a horse, in the opinion of this court, might be amplified in the county court, and evidence permitted to show the fact that it was on account of the negligence of the private railroad company However, there was no change of the cause of action 'essentially, and that is the ground of complaint in this case. We see no error in the action of the trial court,, and the same is overruled.

The second assignment of error undertakes to group the first and fourth assignments and consider the same as one assignment, and is as follows: *

(a) “The court erred to the prejudice of defendant in overruling its general demurrer, because in justice court plaintiff’s cause of action asserted was that Ms horse was killed by the defendant’s log train, to his damages $125, and on appeal that said horse was negligently killed by defendant without stating the manner or character of negligence, which pleadings were orally made and were insufficient, as more fully shown by its bill of exception No. 1.”
(b) “The court erred in overruling defendant’s special exception No. 2, because the plaintiff does not charge negligence in his cause of action, when the defendant was operating only a private tramroad, nor did he charge the character of negligence by any pleadings.”

The rules of pleading in the justice’s court are very liberally construed by the courts, as before set out, and we believe that the pleading was sufficient, under the amendment in the county court, to permit evidence that the horse was negligently, killed by the defendant, and under the rules that govern the pleadings in the justice’s court, and the rules which govern in cases which originate in the justice court and are on appeal in the county court, the pleading in this case is sufficient to admit the testimony offered.

The record has been carefully examined in this case, and we find no error in the action of the trial court that would lead us to the conclusion that we should reverse the action of said court.

The assignments therefore are overruled, and the case is in all things affirmed.
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