text:
    KANSAS CITY, M. & O. RY. CO. OF TEXAS et al. v. JAMES et al.
    (No. 1082.)
    (Court of Civil Appeals of Texas. Amarillo.
    Dec. 20, 1916.)
    1. Negligence <@=>119(4) — Pleading and Proof — Specific Acts.
    Where the petition in a negligence action alleges generally that the injury was the result of negligence, and then specifically sets up the acts of negligence relied on, the evidence will be confined to the specific allegations; the general allegations being controlled by the specific acts averred.
    [Ed. Note. — Eor other cases, see Negligence, Cent. Dig. § 208; Dec. Dig. <@=>119 (4).]
    2. Limitation op Actions <@=>127(17) — Amendment — New Cause op Action.
    In aetion for negligence and delay, in shipping cattle, an amendment to the petition offered during the trial alleging that the cattle were on the cars for 43 hours and plaintiffs were refused permission to unload, feed, and water them during that time, etc., did not set up a new cause of action, although alleging ’different and additional grounds of negligence, and was not barred, though two years had elapsed.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. § 545; Dec. Dig. <©=> 127(17); Pleading, Cent. -Dig. § 688.]
    3. Continuance <@=>30 — Surprise at Trial— Amendment.
    But such an amendment required continuance, upon defendants’ request, to afford reasonable time to procure evidence to rebut the new allegations, since the amendment set up entirely new grounds of negligence, notwithstanding plaintiffs, in repelling any inference of contributory negligence arising from their having special charge of the cattle during transportation, had introduced some evidence that they had requested the cattle be unloaded for feed, water, and rest.
    [Ed. Note. — For other cases, see Continuance, Cent. Dig. §§ 99-112; Dec. Dig. <@=>30.]
    4. Caeeiebs <@=>228(1) — Live Stock — Bueden of Proof. '
    In action for negligent carriage of cattle, where defendants pleaded and proved that plaintiffs’ contracts gave them special charge of the cattle in transportation, the burden was on plaintiffs to exonerate themselves for any negligence effecting injury to the cattle, since, if plaintiffs were negligent in that respect, defendants could reduce the dhmages, to .that extent as affecting the amount of recovery based on defendants’ negligence.
    [Ed. Note. — For other cases, see Carriers, Century Dig. §8 957, 958; Decennial Dig. <@= 228(1).]
    5. Appeal and Eeeor <@=>231(3) — Preservation of Objections — Form of Objection— Evidence.
    In an action for negligent carriage of cattle, error in the admission of evidence for plaintiffs of difference in the value of cattle when loaded and on their arrival was not sufficiently presented for review by the general objection that evidence “of any difference in value” between time of loading and of arrival would be incompetent to prove damage to the shipment.
    [Ed. Note. — For other eases, see Appeal and Error, Dec. Dig. <@=>231(3); Trial, Cent. Dig. §§ 194-200.]
    6. Trial <@=>81 — Objection to Evidence — Form.
    A party objecting to evidence should state his objections clearly and specifically so that they may be understood by the court and obviated by the opposing party if capable of being removed by the production of other evidence.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 193; Dec. Dig. <@=>81.]
    7. Evidence <@=>481(3) — Conclusion of Witnesses.
    In action for negligent carriage of cattle, testimony that the difference in value of the cattle was $5 a head on account of their actual appearance on arrival compared with what their appearance would have been if they had arrived after a run in reasonable time was inadmissible as being a conclusion of witness on a mixed question of law and fact.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2251, 2254; Dec. Dig. <@=>481(3).]
    8. Evidence <@=>544 — Experts — Qualification — Condition of Cattle.
    In action for negligent carriage of cattle, an experienced cattleman may qualify to testify what the condition of cattle would be if confined in cars from 40 to 43 hours without unloading, although such witness has never accompanied a shipment of cattle.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2356; Dec. Dig. <@=>544.]
    Appeal from District Court, Dallam County ; D. B. Hill, Judge.
    Aetion by A. M. James and another against the Kansas City, Mexico & Orient Railway Company of Texas and another. From' a judgment for plaintiffs, defendants appeal.
    Reversed and remanded.
    Thompson & Barwise, of Ft. Worth, H. S. Garrett, of San Angelo, and J. Y. Powell, of •Houston, for appellants. Tatum & Tatum, of Dalhart, for appellees.
   HENDRICKS, J.

The appellees sued the Kansas City, Mexico & Orient Railway Company of Texas-and the Ft. Worth & Denver City Railway Company for damages alleged to have arisen on account of a shipment of 850 head of cattle, made on April 21, 1913, from Ft. Stockton, Tex., by way of Chilli-cothe, to Dalhart, Tex.

The original petition of the plaintiffs, as well as the amended original petition, contain general allegations of negligence addressed to the failure of the defendant railway companies to exercise ordinary care in the transportation of the cattle, and the failure to transport the same with reasonable dispatch. Said petitions, however, contain specific allegations of negligence, set out in different paragraphs, alleging delay, rough handling of the cattle by jerking the cars in which they were shipped, also permitting the same to stand on the cars at a station, or stations, an unreasonable length of time, all of which produced the death of some of the cattle and a damage of $1,251 to the remainder.

It is the settled rule in regard to the construction of pleadings in negligence cases that, where the petition alleges generally that the injury was the result of negligence, and then specifically set up the acts of negligence relied upon, the evidence will be confined to the specific allegations of negligence, and the general allegations will be controlled by the specific acts averred. Railway Co. v. De Ham, 93 Tex. 74-78, 53 S. W. 375; Railway Co. v. Younger, 10 Tex. Civ. App. 141, 145, 29 S. W. 948; Railway Co. v. Hennessey, 75 Tex. 155, 158, 12 S. W. 608.

During the trial of the case, and after the evidence had nearly closed, the plaintiffs requested, and the trial court granted, permission to file a trial amendment, in which it was alleged:

That the plaintiffs’ cattle “were upon the defendants’ said cars for more than 43 hours from the time they were loaded at Et. Stockton, Tex., before they were unloaded for feed, water, and rest, and defendants failed and refused to permit the plaintiffs to unload, feed, water, and rest said cattle for more than 43 hours from the time they were loaded, * *. * although demanded and requested by the plaintiffs to do so.”

It was also alleged that defendants failed to provide sufficient facilities to plaintiffs for the purpose of feeding, watering, and resting the cattle.

The first amended original petition of the plaintiffs was filed in the cause on the 15th day of January, 1915, and the cause was called for trial on March 13, 1916.

The defendants objected to the filing of the trial amendment, for the reasons that the allegations of negligence contained therein had never before been set up in plaintiffs’ pleading, to their surprise, and without affdrding defendants opportunity to procure testimony to rebut the allegations. The objections were overruled by the trial court, and plaintiffs were permitted to file the amendment.

The defendants then presented to the court a motion, properly sworn to, to withdraw their announcement of ready in the cause, and continue the same for the term, or postpone it to a subsequent date, for the purpose of procuring testimony and evidence to rebut the plaintiffs’ trial amendment. In said motion it was asserted that, if allowed a reasonable time in which to procure the evidence, the defendants expected to prove that the cattle did not remain on board the cars for the length of time alleged by plaintiffs, nor that the plaintiffs made any request of defendants, or either of them, to have the cattle unloaded, fed, watered, and rested. It was stated in the motion:

“That defendants had and were possessed of ample facilities to unload, feed, water, and rest said cattle at reasonable intervals, and would have furnished same to plaintiffs if requested, or informed of conditions rendering same necessary or advisable.”

The defendants in their answers had pleaded the usual cattle shipping contracts, by the terms of which the plaintiffs had agreed to feed,, water, and care for the cattle, unload and reload the same during the transportation.

After the filing of the trial amendment the defendants also pleaded a special exception, interposing the two-year statute of limita-tión arising upon the record, which was likewise overruled by the trial court.

We think the' trial amendment, though alleging additional and different grounds of negligence, contributing, in part, to the cause of action, such negligence shown to be a part of the same transaction, and effecting the same injury alleged in the first amended petition, did not set up a new cause of action. Railway Co. v. Mitten, 13 Tex. Civ. App. 653, 36 S. W. 282, writ of error denied, Cotton Co. v. Stewart, 17 Tex. Civ. App. 59, 42 S. W. 241, writ of error denied by Supreme Court, 93 Tex. 695, 42 S. W. 241; Cotter v. Parks, 80 Tex. 539, 16 S. W. 307; Massey v. Blake, 3 Tex. Civ. App. 57, 21 S. W. 782; T. C. Ry. Co. v. Frazier, 34 S. W. 665; Landa v. O’Bert, 78 Tex. 46, 14 S. W. 297; Texas & Pacific Railway Co. v. Buckalew, 34 S. W. 165.

We think though the trial court should have sustained the defendants’ motion and either continued the cause for the term or postponed it for a future date, affording reasonable time to procure evidence to rebut the new allegations of negligence.

It is.clear, analyzing the specific acts of negligence charged in the amended petition, to which the proof would had to have been confined in sustaining the cause of action asserted therein, that the allegations of negligence set up on the trial amendment were entirely new grounds of negligence contributing to the injury and the recovery.

It is true that to the time of the trial amendment, there had been testimony on the question of the cattle having been injured on account of the long detention upon the cars and some testimony by one of the plaintiffs that at certain points during the transportation a request was made of the defendants that the cattle be unloaded for feed, water, and rest; and the record does not disclose any objection to this testimony, except that after the case had closed upon the evidence a special charge was requested and refused by the trial court that the character of testimony mentioned be excluded from the jury. We mention the fact of the, deliverance of this character of testimony before the time of the filing of the trial amendment for the reason that it may be suggested and argued that such testimony was in the record, and the defendants could not have been surprised on that account. Such testimony, however, can be appropriately accounted for without any objection upon the part of the defendants on account of this condition. As stated, defendants had pleaded that the plaintiffs had assumed, as caretakers, the charge of the cattle during transportation, on account of special contracts pleaded by them. Such testimony was pertinent on the controverted issue between plaintiffs and defendants, whether the former were guilty of negligence in failing to comply with the contract to care for the cattle in course of transportation.

Tlie plaintiffs not having pleaded (to the time of the trial amendment) as grounds of negligence that the cattle had been on the cars an unreasonable length of time without feed, water, and rest, nor that defendants had failed to furnish facilities, the latter had the right to regard that such testimony in the record up to the time of the filing of the trial amendment was relevant only to the contributory negligence of the plaintiff, and not as affecting any right of recovery by the plaintiffs. When defendants pleaded that plaintiffs, under their contracts, had special charge of the cattle in transportation, the burden, after the introduction in evidence of said contracts, was upon the plaintiffs to exonerate themselves for any negligence affecting the injury to the cattle. Texas & Pacific Railway Co. v. Arnold, 16 Tex. Civ. App. 76, 77, 40 S. W. 829; Railway Co. v. Vaughan, 41 S. W. 415; opinion on motion for rehearing in the case of Ft. Worth & Denver City Railway Co. v. Allen, 189 S. W. 765 (witÉ numerous authorities cited therein), decided by this court November 29, 1916. If they were negligent in that respect, necessarily defendants had the right to reduce the damages to that extent as affecting the amount of recovery based on the grounds of negligence alleged in the amended original petition. Such an issue, as pertinent to the defense of the carriers when first asserted in plaintiffs’ trial amendment upon grounds of negligence affecting their right of recovery, is entirely different when addressed to the right of the defendants to be heard thereupon.

It may be said that, because there was evidence introduced by plaintiffs and defendants as a controverted question affecting defendants’ defense, this court should consider (though the issue was reconverted in plaintiffs’ petition as a ground of recovery) that all the testimony had been developed on that subject.

The case of Railway Co. v. Groner, 100 Tex. 414, 100 S. W. 137, presents one where a new cause of action was pleaded by amendment. An application was made by the defendant for a continuance to meet the new cause asserted. The defendant was forced to trial, and, as affecting the right of that litigant for opportunity to meet the new issues, Justice Williams of the Supreme Court said:

“Nor is the objection to the ruling of the court met by the fact that some evidence was produced by the defendant of the same character as that for which the continuance was sought. This consideration has weight where time and opportunity to procure evidence have been allowed and further delay is sought, but does not properly affect the question 'here. The defendant was entitled to a reasonable opportunity to bring all the evidence upon the issue which it could produce and thought important to its defense, and could not properly he denied this right so long as it was not in default.”

The defendants, by their attorney, swore that they expected to meet the new issues presented in plaintiffs’ petition as grounds of recovery, if permitted opportunity to do so. The “newness” of the issue (though a new cause of action is not made) presents the application of the principle of the right for time to meet it equally as significantly as if a new cause had been presented.

The trial court submitted to the jury the issues of the alleged liability of the defendants for failure to unload, feed, water, and rest the cattle en route, and the failure to furnish plaintiffs reasonable facilities, on demand therefor, at reasonable intervals. It is evident, considering the statement of facts, that such issues were matters of serious consideration by the jury, which could have contributed considerably to their verdict. We think the trial court would have been on the “safe side” in continuing or postponing the cause.

The first assignment of error declares that:

“The court, in permitting one of the plaintiffs, W. P.. James, while testifying as a witness in behalf of plaintiffs, to testify, over objections of defendants, that the difference in the value of the cattle when loaded on the train at Ft. Stockton and their value when they arrived at Chillicothe was about $2 a head; defendants’ objections being that said testimony was incompetent to prove the damage to the shipment from the time they left Ft. Stockton until they arrived at Chillicothe.”

The proposition under this assignment is:

“That the measure of damages to a shipment of live stock is the difference, if any, in the market values of said stock, if any, at the time and in the condition in which they did arrive at destination and at the time and in the condition in which they should have arrived if handled and transported with ordinary care and reasonable dispatch.”

The bill shows that the objection to the testimony was:'

“That evidence of any difference in value of the cattle from the time they were loaded and penned at Ft. Stockton and the time they arrived in Chillicothe would be incompetent to prove the damage to the shipment of cattle.”

A party objecting to evidence should state his objections clearly and specifically so that they may be understood by the court, and obviated by the opposing party if they be capable of being removed by the production of other evidence. Bohanan v. Hans, 26 Tex. 445; Croft v. Rains, 10 Tex. 520; Cobb v. Norwood, 11 Tex. 556.

Plaintiffs were evidently attempting, by the testimony, as exhibited in the bill of exceptions, to properly present an apportionment of damages with reference to the several liability of the connecting carriers. The objection that evidence of any difference in value of the cattle from the time they were loaded and penned at, Ft. Stockton and the time they arrived in Chillicothe was incompetent would not reach the question. Plaintiff had a right, in some manner, to-present the damages arising from the injury to the cattle on account of the negligence of the Orient, and such a general objection, to the effect that “any evidence” of any difference in value at Chillicothe, etc., was too general. There could be evidence on the question tending to prove the difference which would be proper. We also seriously doubt that an objection on the ground of incompetency would permit the court to exclude the evidence.

Appellants objected to the following answers of one of the plaintiffs James, on the ground that they were a conclusion of the witness and were answers on a mixed question of law and fact:

“The real appearance of the cattle and what they should have arrived in if they had got in on a good day without lying in that mud at Amarillo, and on those cars, the appearance was $5 difference in them. They were that much off in appearance.”

The meaning of this testimony is a little difficult. If it is intended to convey the idea of the difference in value of the cattle at $5 per head on account of their actual appearance compared to their appearance if they had arrived as the result of a good run, we are clear that the testimony was subject to the objections, and was improper. Reading the whole of this witness’ testimony, we are inclined to think that he was intending to convey such a meaning, or one similar thereto, though he used the expression as a part of his testimony, “what they should have arrived in if they had got in on a good day,” meaning a good run or a run in good time, or at least a reasonable time. It will be recalled that the Supreme Court, in the case of Houston & Texas Central Railway Co. v. Roberts, 101 Tex. 418, 108 S. W. 809, held that a witness’ testimony, in effect, that “runs” previously made within a certain time “would be a reasonable time to make the trip,” constituted an answer involving a mixed question of law and fact; that the witness must first determine for himself what would constitute ordinary care, and then have deduced from a consideration of all the elements that would enter into his opinions on the question of reasonable time, a conclusion as to what that time should be. If a witness is unable to state that certain runs would constitute a reasonable time within which to make a trip, then this witness would certainly be unable to state the difference in the value of the cattle on account of a difference in appearance; one element of his conclusion being based upon a good run or a reasonable run. He would be unable to state in the first instance what a reasonable or a good run or what reasonable time would have been. The following authorities hold the character of testimony discussed as improper: T. & P. Ry. Co. v. Jones, 58 Tex. Civ. App. 132, 124 S. W. 194; K. C., M. & O. Ry. Co. v. Bigham, 138 S. W. 432; K. C., M. & O. Ry. Co. v. Beckham, 152 S. W. 229; T. & P. Ry. Co. v. McIntyre, 152 S. W. 1103; T. & P. Ry. Co. v. Crowder, 157 S. W. 281; T. & P. Ry. Co. v. Tomlinson, 157 S. W. 278; H. & T. C. Ry. Co. v. Hawkins, 167 S. W. 190; I. & G. N. Ry. Co. v. Hamon, 173 S. W. 613; P. & N. T. Ry. Co. v. Holmes, 177 S. W. 505; F. W. & D. C. Ry. Co. v. Gatewood, 185 S. W. 932; K. C., M. & O. Ry. Co. v. Corn, 186 S. W. 807.

There were several assignments of error in the brief challenging the testimony of a number of witnesses who stated that cattle would become drawn, feverish, and weak if confined in cars from 40 to 43 hours without unloading, feeding, watering, and resting the same; most of the witnesses also answering that it would take several days to recuperate or recover from the weakened condition. There can be no doubt but what nearly all of the witnesses qualified themselves to speak on the subject, on account of their experience as cattlemen and as shippers. The witness Price, it is true, stated that he had never accompanied a shipment of cattle. However), /considering his experience^ we think it was a question for the jury as to the weight of his testimony. There are witnesses who were not cattlemen, strictly speaking, testifying along th.e same line, the objections to which we will not discuss, for the reason that it is practically an indisputable fact in this record that cattle of this character, confined for the length of time as shown in this record, without sustenance and rest, were injured.

The eleventh .assignment challenges the verdict of the jury ’and judgment of the court on the ground that there was not sufficient evidence to show any difference in the market value of the cattle that reached Dal-hart alive at the time and in the condition they did arrive and the market value of such cattle at the time and in the condition they should have arrived at destination. In view of another trial the discussion of this assignment would probably be academic.

For the reasons indicated, the cause is reversed and remanded.
      ©=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HALL, J.

license: Public Domain

text:
    EARHART et al. v. AGNEW et al.
    (No. 1040.)
    (Court of Civil Appeals of Texas. Amarillo.
    Dec. 20, 1916.
    Rehearing Denied Jan. 17, 1917.)
    1. Fraudulent Conveyances <@=>57(5) — Gift by Husband — Validity.
    A husband can lawfully give any of his property or his interest in the community property to his wife, provided he is solvent.
    [Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 156-157; Dec. Dig. <@=>57(5).]
    2. Husband and Wife <@=>235(4) — Special Findings — Conflict.
    A special finding by the jury that a wife signed a deed upon condition that she was to have the value of the land does not conflict with a finding that the note therefor was not given to her.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 852, 982; Dec. Dig. <@=> 235(4).]
    3. Husband and Wife <S=>15(4) — Conveyance by Wife — Consideration.
    There is no consideration for a wife’s signature to a deed to property which was not the homestead and which the husband could convey without her signature.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 95, 283; Dec. Dig. <@=>15 (4).]
    4. Appeal and Errob <@=>1002 — Review— Findings — Evidence.
    Special findings by the jury on questions of fact are binding on the appellate court, though there is evidence to the contrary.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dec. Dig. <@=> 1002.]
    5. Gifts <S=>31(1) — Delivery of Note — “Goods and Chattels.”
    Choses in action are not goods and chattels within Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3968, providing that no gift of any goods and chattels shall be valid unless by deed or will, or unless actual possession shall have come to and remained with the donee so that delivery and possession of a note is not essential to the validity of a gift of the note.
    £Ed. Note. — For other cases, see Gifts, Cent. Dig. §§ 58, 59; Dec. Dig. <@=>31(1).
    For other definitions, see Words and Phrases, First and Second Series, Goods.]
    6. Trial <@=>121(2), 125(1) — Misconduct of Counsel — Inferences from Evidence.
    In an action in which plaintiff garnished the holder of notes payable to defendant, where defendant’s wife intervened claiming the notes as a gift from him, the argument by plaintiff’s counsel that defendant transferred the note to his wife for the purpose of beating his honest debt to plaintiff, was permissible as a conclusion from the evidence and not inflammatory or intended to prejudice the jury’.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 296, 303; Dec. Dig. <@=>121(2), 125(1).]
    7. Evidence <@=>233 — Witnesses <@=>379(2)— Impeachment — Inconsistent Statements —Claim of Ownership.
    Where the debtor had testified that he had given notes payable to him to his wife, declarations by him subsequent to the gift claiming to own the notes, are admissible in proceedings by a creditor claiming fraud and conspiracy to contradict and impeach defendant’s testimony, though not to show his ownership of the notes.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 866-868; Dec. Dig. <@=>233; Witnesses, Cent. Dig. §§ 1220, 1248; Dec. Dig. <§=> 379(2).]
    8. Appeal and Error <@=>216(1), 231(7)— Presenting Questions Below — Evidence —Objections—Limiting Effect.
    An assignment of error to the admission of testimony which was admissible only to impeach a witness cannot be sustained where only the general objection was made and no special charge limiting the effect of the testimony was requested.
    [Ed. Note. — For other cases, see Appeal and Error, Dee. Dig. <@=>216(1), 231(7); Trial, Cent. Dig. §§ 195, 627.]
    9. Garnishment <@=>161 — Evidence—Answeb of Garnishee.
    Where the action against the debtor and the garnishment proceedings are heard at the same time, the answer of the garnishee is admissible in evidence as between plaintiff and garnishee.
    [Ed. Note. — For other cases, see Garnishment, Cent. Dig. § 299; Dec. Dig. <@=>161.]
    10. Trial <@=255(4) — Request for Special Charge — Limiting Evidence.
    Where evidence admissible only against the garnishee was admitted at the consolidated trial of the garnishment proceedings and the main action, it was the duty of defendants to have requested a special charge limiting the effect of the evidence if they did not wish it considered against them.
    [Ed. Note. — For other eases, see Trial, Cent. Dig. § 632; Dec. Dig. <@=>255(4).]
    11. Appeal and Error <@=>1052(5) — Harmless Error — Admission of Evidence-Cure by Findings.
    Error in admitting testimony by a garnishee that he had notes belonging to defendant was harmless where the note was payable to defendant and the jury found he did not give it to his wife.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4175; Dec. Dig. <@=>1052(5).]
    12. Homestead <@=>216 — Special Verdict-Sufficiency.
    Special findings by the jury in an action in which defendant’s wife claimed a note as the proceeds of the homestead, held sufficiently clear and to determine the issue of homestead adversely to the wife.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 400-403; Dec. Dig. <@=>216.]
    Appeal from District Court, Lubbock County; W. R. Spencer, Judge.
    Action by J. W. Agnew against S. M. Earhart, with the Lubbock National Bank as garnishee, in which Mrs. S. M. Earhart intervened and claimed the fund impounded by garnishment proceedings. Judgment for plaintiff, and defendant and intervener appeal.
    Affirmed.
    R. A. Sowder, of Lubbock, for appellants. W. F. Sehenck and Roscoe Wilson, both of Lubbock, and Chas. C. Triplett, of Brownfield, for appellees.
   HALL, J.

The appellee Agnew sued T. O. Earhart, in the district court of Lubbock county, to recover the amount of a certain note made by Earhart, payable to Agnew, and at the time of filing the suit procured the issuance and service of a writ of garnishment against the Lubbock State Bank. The bank answered that it had in its hands $1,-205.20. Mrs. S. M. Earhart, wife of T. O. Earhart, intervened in the garnishment proceedings, claiming the fund impounded. Special issues were submitted to the jury and judgment was rendered that T. 0. Earhart was the owner of the fund; that he was indebted to J. W. Agnew in an amount exceeding the sum held by the bank, and the bank was ordered to pay the fund in its hands to plaintiff. The following are the issues submitted to the jury, with the answers returned thereto;

No. 1: “Did T. O. Earhart and his wife, S. M. Earhart, at the time they moved off the south 200 acres of survey No. 22, block D- 2, in Lubbock county, Texas, and acquired and moved onto a place in the town of Lubbock, in the year 1909, intend to return and occupy the said section 22, block D 2, as a homestead?” Answer: “No.”
No. 2: “Lid S. M. Earhart and T. O. Earhart, or either of them, ever move back and occupy the south 200 acres of section No. 22, block D 2, as their homestead, after they moved away from the same to the town of Lubbock, in the year 1909, until they sold the same to A. Symes, on June 16, 1911?” Answer: “No.”
No. 3: “Was section 22 abandoned by T. O. Earhart as a home, with the intention never to return and live thereon at the time they moved from the same in the year 1909?” Answer: “Yes.”
No. 4: “Did T. O. Earhart and S. M. Earhart abandon 200 acres out of the south part of section 22 as a home at any.time prior to their sale to A. Symes on June 16, 1911?” Answer: “Yes.”
No. 5: “Was the transfer of the note, the proceeds of which are garnished in this suit, a gift from T. O. Earhart to S. M. Earhart?" Answer: “No.”
No. 6: “Was the debt sued on by the plaintiff against said T. O. Earhart a community debt— that is, a debt contracted during the existence of the marriage relations between them?” Answer: “Yes.”
No. 7: “Did S. M. E'arhart, at the time she signed the deed to A. Symes on June 16, 1911, do so upon the condition that she was to have the value of the 200 acres out of the south half of section 22, block D 2?” Answer: “Yes.”
No. 8: “Did the intervener, S. M. Earhart, or some one for her, have the open, notorious, exclusive, and adverse possession of the note due January 1, 1915, for a period of two years prior to January 1, 1915?” Answer: “No.”
No. 9: “Was T. O. Earhart insolvent at the time it is alleged he indorsed the notes introduced before you, if he did so, to his wife S. M. Earhart?” Answer: “No.”

Appellants contend., first, that the court should have rendered judgment in favor of Mrs. S. M. Earhart on the special answers and verdict, of the jury. It is true, as contended, that the husband may lawfully transfer or give any of his property, or his interest in the community property, to his wife, provided he is solvent at the time. “The right of one to give his property, whether separate or community, to another, even though it be his marital consort, is absolute where the principle is not violated that one must be just before he is generous.” Speer’s Law of Marital Rights, § 116; Bruce v. Koch, 40 S. W. 626; Cheek v. Herndon, 82 Tex. 146, 17 S. W. 763; Kane v. Ammerman, 148 S. W. 815.

The finding of the jury, however, is that the note in question, the proceeds of which are held by the garnishment, was, as a matter of fact, never given to Mrs. Earhart by her husband. In response to interrogatory No. 7, the jury found that at the time she signed the deed with her husband, conveying the 200 acres to A. Symes, it was upon condition that she was to have the value of the land. There is no conflict between this finding and the conclusion of the jury that this note was never given to her.

It having been found that the 200 acres was not a homestead at the date of the Symes deed, there was no consideration for her signature as a sufficient conveyance might have been made by T. O. Earhart alone.

There is considerable evidence tending to show a gift of the note to Mrs. Earhart by her husband, but it is clear from the findings of the jury that they “did not bless it with credence.” The note itself was payable to T. O. Earhart and prima facie was his property. It was apparently the opinion of the jury that the indorsement was not made at the time of its execution, as asserted by some of the witnesses. We are bound by these findings.

We were mistaken in our original opinion in basing our conclusions upon articles 3967 and 3968 of Sayles’ Civil Statutes, since it has been held that choses in action are not “goods and chattels” within the meaning of such statutes (Schauer v. Von Schauer, 138 S. W. 145; Cowen v. First National Bank, 94 Tex. 547, 63 S. W. 532, 64 S. W. 778); and that delivery and possession by the donee of this character of property is not essential to the validity of the gift.

Under the second assignment it is urged that because appellees’ counsel stated in argument to the jury that “T. O. Earhart transferred the note to his wife for the purpose of beating his honest debt to Agnew, the plaintiff,” the verdict and judgment should be set aside. We see nothing inflammatory in the remark, nor do we think it tended to prejudice the jury; it is simply a statement by counsel of his conclusions, drawn from the evidence. As we understand the rules of practice, it is permissible for counsel in argument to draw from the evidence every legitimate inference deducible therefrom, if in doing so the language used does not transcend proper bounds. Pitts v. Wood, 125 S. W. 954. The findings of the jury upon the issue of homestead preclude appellants from recovering the fund in controversy upon the ground set up by them that the money impounded by the writ of garnishment was the proceeds of a note given in part payment for their home, and therefore exempt.

Plaintiff was permitted over the objections of the Intervener to testify that T. O. Earhart had told him that he (Earhart) had about $4,000 worth of notes in the bank. The court permitted the introduction of a release by Earhart to the vendor’s lien retained in the note in question, in which it is recited that Earhart is “the present legal and equitable owner and holder of said vendor’s lien notes above mentioned. The objections made were that the evidence offered is the statement of a legal conclusion and that declarations of ownership, after the declarant has parted with the title to the property, are not admissible against the real owner. It appears that T. O. Earhart had testified by deposition that he transferred, together with other notes, the one in question to his wife, as her pro rata share of the estate; that the notes were delivered to her as her own property and it was understood that she should hold them for the purpose of schooling the children and using the money as she saw fit. The declarations of T. O. Earhart as to his ownership of the note and the recital in the release of the vendor’s lien were admissible under this record for the purpose of contradicting and impeaching Earhart, but should not have1 been admitted to disprove the claim of ownership made by Mrs. Earhart. Fraud and conspiracy had been alleged, and under such allegations considerable latitude is allowed in the admission of testimony.

Appellant should have requested a special charge, limiting the effect of the testimony to its legitimate purpose, but, having made a general objection and having failed to request the charge, the assignment must be overruled. P. & N. T. Ry. Co. v. McMeans, 188 S. W. 692; Construction Co. v. Crawford, 89 Tex. Civ. App. 56, 87 S. W. 223.

It is further contended that the court erred in permitting the garnishee’s answer to be introduced in evidence. As between the plaintiff and the garnishee the answer was admissible. Moore v. Blum, 40 S. W. 511; Blum v. Moore, 91 Tex. 273, 42 S. W. 856. We think the language of the statute clearly indicates that the garnishee’s answer is to be looked to by the court in determining the extent of the garnishee’s liability. It appears frorh the record that the original action against T. O. Earhart, and the garnishment proceeding against the bank, were tried at the same time as one case. The answer being admitted in one branch of the suit as consolidated and tried, it was the duty of appellants, if they did not want it to be considered as evidence against them, to have requested a special charge, limiting its effect.

Appellants assign as error the action of the court in permitting an official of the bank to testify:

“We have had, ever since Mr. Earhart left, we have had some notes in the vault that belonged to him.”

Ordinarily, it would be reversible error to admit such evidence, since in a case of this nature the question of ownership is one of mixed law and fact; but the answer of the jury to special issue No. 5, to the effect that T. O. Earhart never gave the note to his wife, and the face of the note itself fixing the ownership in T. O. Earhart, the error, if any, was harmless. We think the findings of the jury are sufficiently clear, and determine adversely to appellants the issue of homestead.

Our original opinion is withdrawn, and the clerk is ordered to file this in its stead. What we have said disposes of the various assignments, and the judgment is affirmed.
      <@=>Eor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, O. J.

text:
    KANSAS CITY, M. & O. RY. CO. OF TEXAS v. FINKE.
    (No. 575.)
    (Court of Civil Appeals of Texas. El Paso.
    Nov. 28, 1916.
    Behearing Denied Jan. 5, 1917.)
    1. Appeal and Error <§=999(3) — -Questions oe Pact — Contributory Negligence.
    Where the proof is conclusive that a railroad and its employé were engaged in interstate commerce when the latter was injured, and the jury found on special issues the amount to which the employé’s negligence contributed to his injuries, which was deducted from his damages by the court, the issue of contributory negligence is disposed of.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 3923, 3924; Dec. Dig. <§= 999(3).]
    2. Appeal and Error <§=934(2) — Presumptions — Special Verdict — Issues Not Submitted.
    Where the question of assumed risk was not submitted to the jury and not required by defendant, the issue will be resolved in support of a judgment for plaintiff rendered on special issues found by the jury, if there is any evidence to support such a finding.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. § 3777; Dec. Dig. <§=934(2).]
    3. Trial <§=365(1) — Special Issues — Assumption oe Bisk.
    In an action for injuries to a roadmaster who ran his railroad motorcar into an open switch, special issues as to whether it was the custom when engines went upon the side track to get coal and water to leave the switch open, and whether plaintiff knew of such custom, did not submit the question of assumption of risk either under the Texas rule that he assumed the risk arising from his knowledge that the doing of the work in a particular way had become so common and habitual that he should know it would be followed on the particular occasion, or under the rule in the federal courts that he does not assume the risks arising from a knowledge of his master’s methods of business or from a failure to use ordinary care to ascertain such methods.
    [Ed. Note. — Por other cases, see Trial, Cent. Dig. § 871; Dec. Dig. <§=365(1).]
    4. Master and Servant <§=219(4), 226(2) — Injuries to Servant — Assumption oe Bisk — Obvious Danger — Negligence of Employer.
    An employé assumes the risks of the dangers normally and necessarily incident to the occupation and of such others as he becomes aware of or as are so open and obvious that an ordinarily prudent person must necessarily have observed them, but does not assume risks arising from his employer’s negligence if he does not know .of such negligence and is not charged with knowledge thereof.
    [Ed. Note. — Por other cases, see Master and Servant, Cent. Dig. §§ 613, 662; Dec.. Dig. <§= 219(4), 226(2).]
    5. Master and Servant <§=288(12) — Injuries to Servant — Assumption oe Bisk-Question for Court.
    The mere fact that a roadmaster ran his motorcar into an open switch, the position of which was correctly indicated by the switch target, does not charge him with assumption of risk of an obvious danger as a matter of law, but, at most, raises a jury question which will be presumed to have been found' against defendant by tbe court where special issues, not including assumption of risk, were submitted to the jury, and judgment rendered thereon for plaintiff.
    [Ed. Note. — Por other eases, see Master and Servant, Cent. Dig. § 1083; Dec. Dig. <§= 288(12).]
    6. Master and Servant <§=276(8), 278(18)— Injuries to Servant — Negligence of Defendant-Evidence.
    In an action for injuries to a roadmaster who ran his motorcar into an open switch, evidence held sufficient to support the jury’s finding that defendant was negligent in leaving the switch open, and that such negligence was the proximate cause of the injury.
    [Ed. Note. — Por other cases, see Master and Servant, Cent. Dig. §§ 951, 959, 970, 971; Dec. Dig. <®=276(8), 278(18).]
    7. Trial <§=351(2) — Special Issues — Issues Not Submitted — Statute.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1985, requiring the court to submit all the issues made by the pleading, but providing that failure to submit any issue shall not require reversal of a judgment unless its submission was requested in writing by the party complaining of the judgment, and that upon appeal or writ of error an issue not submitted and not requested shall be deemed as found by the court in such manner as to support the judgment, if there is evidence to sustain such a finding, a judgment for plaintiff on special issues, which did not include assumption of risk, is not improper, where no issue on assumption of risk was submitted by defendant.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 837; Dec. Dig. <§=351(2).]
    8. Evidence <§=532 — Expert Testimony — Exaggeration of Injuries.
    In an action for personal injuries, testimony by a physician that it was recognized among the medical profession and in the books that there was such a thing as exaggeration of injuries, especially where they occurred as the result of accidents on railroads, in no way tended to prove that plaintiff had exaggerated his injuries, and was properly excluded.
    [Ed. Note. — Por other cases, see Evidence, Cent. Dig. § 2340; Dec. Dig. <§=532; Damages, Cent. Dig. § 483.]
    9. Trial <§=260(1) — Bequested Charges — Bepetition of Given Charge.
    There is no error in refusing requested charges when the issues were sufficiently covered by the charge given.
    [Ed. Note. — Por other cases, see Trial, Cent. Dig. § 651; Dec. Dig. <§=260(1).]
    10. Master and Servant <§=296(1) — Injuries to Servant — Bequested Instructions —Contributory Negligence.
    In an action under Employers’ Liability Act April 22, 1908, e. 149, 35 Stat. 65 (U. S. Comp. St. 1913, |§ 8657-8665), where special issues were submitted, including plaintiff’s contributory negligence and the amount to which it contributed to his injury and the damages thereby reduced, it was not error to refuse a requested charge that it was plaintiff’s duty to exercise ordinary care to avoid the accident.
    [Ed. Note. — Por other cases, see Master and Servant, Cent. Dig. § 1180; Dec. Dig. <§= 296(1).]
    Appeal from District Court, Knox County; Jo A. P. Dickson, Judge.
    Action by C. A. Finite against the Kansas City, Mexico & Orient Bailway Company of Texas. Judgment for the plaintiff, and defendant appeals.
    Affirmed.

      H. S. Garrett, of San Angelo, and D. J. Brookreson, of Benjamin, for appellant. W. M. Moore, of Benjamin, and Ocie Speer, of Ft. Worth, for appellee. . . .
   HARPER, O. J.

This is an appeal from a judgment in favor of plaintiff (below) for $3,000, with legal interest from date thereof. !

For cause of action plaintiff pleaded that on or about February 17, 1915, while acting as roadmaster for defendant, he was making his usual trip over the road in a motorcar furnished by defendant, prosecuting his duties of inspection, and while in the exercise of proper care, without fault upon his part, and without notice, he ran into an open switch, his car was derailed, and by reason thereof he was injured; that the switch being open and disconnected was negligence upon the part of defendant and the proximate cause of the accident and injury. ! ! i

Defendant answered that it was engaged in interstate commerce at the time of the accident, and that plaintiff was an employé of the defendant in such commerce within the meaning of the act of Congress of April, 1908; that it was plaintiff’s duty to see that the track was in proper condition, including the side tracks and switches in Hamlin, and that switch targets, including the one in question, were in such condition that they could be readily seen several hundred yards away by persons approaching; also that switches, including the one in question, were closed when it was customary or necessary that same be closed; that at the time of the accident the switch target in question was in first-class condition so that it could have been seen by plaintiff with ordinary care several hundred yards away and in time to have avoided the accident; if it was not in such condition, this was plaintiff’s fault; that the switch in question opened upon a coal and water track upon which engines went to obtain coal and water for use in hauling trains engaged in interstate commerce; that at and prior to the accident it was customary where engines went on the switch track for coal and water to leave the switch open until their return, with which custom plaintiff was, or should have been in connection with his duties, fully familiar; that at the particular time of the accident a road engine hauling freight between California and Kansas had gone on the switch track to obtain coal and water for use in such carriage; that plaintiff knew or should have known of such facts, even without being apprised thereof by the switch target itself; that, notwithstanding all these facts, plaintiff undertook to run a motorcar at a dangerously rapid rate of speed north from Hamlin past the switch track, although he well knew, or with ordinary care for his own safety should have known, and in accord-anee with his duty as an employs should have known, that the switch was open at the time;' that in addition plaintiff could have discovered the open switch with ordinary care, and it was his duty to do so under the rules of railroading and in accordance with his duties, in ample time to have stopped the motorcar, because the switch target clearly disclosed, in the usual manner, that the switch was open; yet plaintiff ran into the switch in gross violation both of the duty he owed to himself and to the property in his charge and of the universally accepted rules of deféndant and principles of railroading; that therefore the accident and injuries resulted solely from the risk assumed by plaintiff in connection with his employment, and especially in undertaking to run .the motorcar over the track at such speed under the conditions then existing.

The cause was submitted by special issues. The questions submitted and the answers thereto are as follows:

“No. 1. Was the defendant, acting by and through its servants or employés, guilty of negligence in leaving the switch open, into which the plaintiff ran? Answer: Yes.
“No. 2. If you have answered Issue No. 1 in the affirmative, then answer the following issue: Was such negligence, if any you have found, upon the part of the defendant, the proximate cause of the accident to the plaintiff? Answer: Yes.
“No. 3. Was the plaintiff injured as a result of the accident in question? Answer: Yes.
“No. 4. Was the plaintiff guilty of negligence in running into the switch, under the circumstances surrounding the plaintiff at the time of the accident? Answer: Yes.
“No. 5. How much damage has the plaintiff sustained, if any, by reason of the accident in question and the injuries received, if any, by him, by reason of said accident, if any? Answer: $8,000.
“No. 6. If you have answered the fourth issue in the affirmative, then answer the following issue: Was plaintiff’s negligence the sole proximate cause of the accident and the injuries, if any, to the plaintiff? Answer: No.'
“No. 7. If you have found in answer to issues Nos. 4 and 6 that plaintiff was guilty of negligence in running into the open switch, and that such negligence, if any, contributed to cause the said accident and injuries, if any, occasioned plaintiff by reason thereof, then answer the following: How much in dollars and cents did plaintiff’s contributory negligence, if any, contribute to the damage, if any, sustained by the plaintiff? Answer: $5,000.
“No. 6a. If in answer to Issue No. 4 you have found that the plaintiff was guilty of negligence in running into the said open switch, then state whether such negligence contributed to the accident and injuries, if any? Answer: Yes.”

Special issues submitted at request of defendant:

“1. Was it the custom where the engines went in upon the side track to get coal and water to leave the switch open until the engine came out? Answer: Yes.
“2. If you have answered the above question, No. 1, in the affirmative, then say: Did plaintiff, O. A. Finkc, know of such custom, or should he have known of such custom by the exercise of ordinary care? Answer: Yes.”

; Upon which judgment was entered for plaintiff.

i i Appellant’s first, second, fourth, fifth, sixth, seventh, and eighth assignments urge that under the undisputed facts and the find-lugs of the jury the court erred in refusing to instruct a verdict for defendant, because: (a) The undisputed proof is that defendant railway company and plaintiff, as its em-ployé were engaged in interstate commerce within the meaning of the act of Congress as pleaded; (b) that there is no pleading or evidence to charge or show that the injuries resulted from or were contributed to by the violation by the defendant of any statute enacted concerning safety appliances for the protection of employés; (e) and that the undisputed proof shows that the plaintiff assumed the risk; and (d) that it was because of his own negligence that the accident and consequent injuries occurred; (e) that there is no evidence of negligence upon the part of defendant.

The proof is conclusive that the defendant and plaintiff, as its employé, were engaged in interstate commerce, and there is no evidence to the contrary; so this question was not required to be submitted to the jury. Therefore, the jury having found that plaintiff was guilty of contributory negligence, his recovery is reduced from $8,000 to $3,000. The issue of contributory negligence is disposed of. The question of violation of statute requiring safety appliances is not in this case by either pleading or proof.

Since the question of assumed risk as a defense was not submitted to the jury and not requested by appellant, the issue will by this court be resolved in favor of or in support of the judgment, if there is any evidente to support such a finding by the trial court.

But appellant urges that the questions submitted upon its request submitted the issue, and that the answers thereto constitute a finding for the defendant. The effect of the questions and answers, at most, is that the defendant’s trainmen had adopted the custom of leaving the switches open when they ran trains upon side tracks until they came back on the main line, and that plaintiff knew of such custom, or should have known of it by the exercise of ordinary care.

Under the Texas authority relied on by appellant, Railway Co. v. Huyett, 99 Tex. 630, 92 S. W. 454, 5 L. R. A. (N. S.) 669, this would not be equivalent to submission of the question of assumed risk arising by reason of plaintiff’s knowledge of a customary doing of a negligent act. It must go further, be a submission of the issue and a finding by the jury that “the doing of the work” in a particular way had become “so common and habitual that the employé should know that it will be followed on the particular occasion,” and not simply that he should have known of such custom by the exercise of ordinary care. But under the rule laid down by the United States Supreme Court in T. & P. v. Archibald, 170 U. S. 665, 18 Sup. Ct. 777, 42 L. Ed. 1188, the employé does not subject himself to risks arising from a knowledge of his master’s methods of business or from a failure to use ordinary care to ascertain such methods. T. & P. Ry. Co. v. Eberheart, 91 Tex. 321, 43 S. W. 510; M., K. & T. Ry. Co. v. Crowder, 55 S. W. 380.

The employé assumes the risks of the dangers which are normally and necessarily incident to the occupation and of such others as he becomes aware of and appreciates, and of such as are so open and obvious that an ordinarily prudent person under the circumstances must necessarily have observed and appreciated. But he does not assume the risks which arise out of the failure of the employer to exercise due care with respect to providing a safe place of work, provided he does not know of such failure, or be charged with knowledge thereof.

Appellant urges that appellee, by the evidence, is brought within the rule that the danger of running into an open switch must have been known to him, and, further, that by reason of the custom obtaining at this particular switch of leaving it open, the further fact that the switch target at this time indicated that the switch was open made the danger of running into it so open and obvious that a man of his experience must necessarily have been so charged with the knowledge of both defects and dangers as to bring him within the rule of assumed risk as a matter of law, and that therefore the court should have instructed a verdict for it.

In order to determine whether this contention of appellant is sound, it seems necessary to quote some of the evidence relied on by appellee as supporting the verdict of the jury in his favor:

Plaintiff testified:

That he was roadmaster for defendant at the time of his accident, and was in the active discharge of his duties as such. “As roadmaster, it was my duty to look after the road, its switches and side tracks, to see that they were properly lined up, and that the track was in good condition. If there was anything the matter with the switches, tracks, or side tracks, it was my duty to fix it up. I did not have charge of opening the switch. Do not know about the engines getting water; that was not my business. I had nothing to do with the locomotives. It was my business to keep up with the trains which ran over the road so I could go along where a heavy train had run over the road and see whether or not the heavy engine or .train had knocked the track out of line, etc., but I did not know about the operation of the trains. 'When this accident occurred on the 17th day of February, 1915, I was making a trip over the railroad inspecting the track. I had my eye on the track all the time, and we run into an open switch. During my 25 or 30 years of railroad business, I have been section foreman, extra gang foreman, and head roadmaster. I am acquainted with the usual and customary practice of railroading on the Orient Railroad here in vogue at the time of the injury. I will state that the main line switches, such as I run into and caused this accident, are supposed to be closed all the time.. If a train comes into a place where there is a switch the brakeman opens that switch. I will state that, if a train comes along and it comes to the switch, just exactly the same switch in question here, the one I run into, wants to use that switch, runs in on it, runs down the switch, if it is going to be gone for 15 or 20 or 30 minutes, any considerable length of time like that, the usual and customary practice with reference to leaving the switch open or closed is that it is supposed to be closed. There was no switchman at or near this switch I run into at the time of the accident. The train crew was down at the roundhouse. I do not know how far that is, but I suppose it is close to one-fourth of a mile. I had been roadmaster two years when this accident occurred. I was in charge of that motorcar and boss of it, but I did not see that target, because I was looking at the track, which I always did, in front of me. I wasn’t looking ahead, of course. X had no idea the main line switch was open until I looked up and went into it. Q. You knew at the time that that locomotive did go into that switch track, didn’t you? A. Yes, sir; but they always shut up. It is not a fact that main line switches are sometimes left open temporarily where there is going to be switching done, after you get away from the main line they are shut. When a train goes in on a switch and is switching and intends to come right back out, there is a man left at the target to watch it. A main line switch is not left open temporarily. If they do switching in and out, there is always a man at the target, if they do that, always a man there to line it up for them; if they ,go a quarter of a mile, or anything like that, they generally shut them, supposed to.”

As stated above, we conclude that the custom of leaving the switch, open has no bearing upon the question of assumed risk; so we then are confined to the one fact admitted, the open switch as indicated by the switch target, upon which the defendant can rely in support of its defense that the danger was so open and obvious that an ordinarily prudent person under the circumstances must necessarily have observed and appreciated it. . In other words, is the fact that the switch target (placed there for the purpose) was in good condition and showed that the switch was open and his failure to see it alone sufficient to charge plaintiff with assumed risk as a matter of law? If there is evidence that plaintiff knew that there was an engine on the side track in question, which is doubtful, he, in effect, says that he had no reason to apprehend that those who ran such engine off the main line onto the side track would leave it open, for he says it was supposed to be closed all the time, and he also says that he did not know that it was open, and the fact that he ran into it conclusively shows that he did not know that it was open. . So, under the circumstances as he relates them, he was justified in going about his business in the usual way relying upon the master’s other employés performing their duty to close the switches so as to leave his place of work, the main track, safe for him to pass over it. So we cannot hold that the mere fact that the switch target showed the open switch and his failure to observe it charges him with assumed risk as a matter of law, but was sufficient to raise a jury question, and, if not submitted to the jury, to be determined by the court.

The circumstances surrounding the open switch and plaintiff’s failure to observe it in the performance of his duties seem, to be the only facts upon which to base a charge and the finding of the jury that plaintiff was guilty of negligence, which was submitted and found in favor of defendant, and the damages reduced accordingly.

And it seems equally clear that 'the facts and circumstances above detailed are sufficient to support the court’s charge and the finding of the jury on the question of defendant’s negligence and liability to plaintiff for his accident and injuries.

The third assignment is that the judgment was improper, etc., because rendered upon verdict of a jury which does not dispose of the material issues in the case as made by the pleadings and testimony. As stated next above, this case was submitted upon special issues under article 1985, Vernon’s Say les’ Statutes, which reads:

“The special verdict must find the facts established by the evidence, and not the evidence by which they are established; and it shall be the duty of the court, when it submits a case to the jury upon special issues, to submit all the issues made by the pleading. But the failure to submit any issue shall not be deemed a ground for reversal of the judgment, upon appeal or a writ of error, unless its submission has been requested in writing by the party complaining of the judgment. Upon appeal or writ of error, an issue not submitted and not requested by a party to the cause, shall be deemed as found by the court in such manner as to support the judgment: Provided, there be evidence to sustain such a finding.”

The issue of assumed risk was not submitted, nor was it requested; so, having concluded that there is evidence to support a finding by the trial court (in support of its judgment) that plaintiff did not assume the risk, we cannot reverse this case upon the ground urged in this assignment, and the same rule applies to all other issues not submitted, if not requested.

The ninth is that the court erred in refusing to permit counsel to interrogate a physician upon the subject as to whether or not he did not know and that it is recognized among the medical profession and in the books upon the subject that there is such a thing as exaggeration of injuries, especially where injuries occurred as a result of accidents on railroads or in connection with other public service corporations.

The appellant refers us to no bill of exceptions which shows that the witness would have testified as appellant indicated. But suppose the witness would have so testified, the fact that a witness would testify that it is common to exaggerate the injuries is in no way proof that the injuries in this case have been exaggerated by the plaintiff; so the court did not err in sustaining the objection to the testimony.

The tenth, eleventh, twelfth, thirteenth, fourteenth, and sixteenth assign error in the charge of the court as given and in refusing charges requested. The issues were . sufficiently covered by the charge given copied above.

The seventeenth is that the court erred. in refusing special charge to the effect that it was the duty of plaintiff to exercise ordinary care to avoid the accident, and it was not error to refuse to give it.

The eighteenth to the twenty-fourth assignments complain of various matters, the charge of the court, the findings of the jury in answer to special issues submitted, etc. After due consideration of each and all, there appears to be no reversible error.

WALTHALL, J., does not fully concur in that portion of the above opinion relative to assumed risk.

Affirmed.
      otner cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RASBURY, J.

text:
    BURGHER & CO. v. CANTER et al.
    (No. 7647.)
    (Court of Civil Appeals of Texas. Dallas.
    Dec. 23, 1916.)
    1. Bkokees <@=^57(1) — Commission—Performance or Contract.
    Where real estate agents agreed in writing, in consideration of a commission on the rents to be collected, to secure, for a tenant of a storehouse, subtenants of part of the premises for the full term of 6 years, but in fact secured tenants only for a period of 4 years and 11 months, they could not recover commission.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 66, 67, 72; Dec. Dig. &wkey;57(l).]
    2. Frauds, Statute op 131(1) — Modification by Parol.
    Under the statute of frauds (Yemon’s Sayles’ Ann. Civ. St. 1914, art. 3965, subd. 5) as to agreements not to be performed within one year, such agreement, contemplating a 5-year term, could not be modified by a parol agreement to waive full 5-year leases by subtenants, and accept leases for 4 years and 11 months, since, in the absence of ambiguity or claims of equity, a written contract within the statute cannot be modified by parol.
    [Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. § 283; Dec. Dig. <&wkey;131(l).J
    Appeal from District Court, Dallas County; Kenneth Foree, Judge.
    Action by Burgher & Co. against A. R. Canter and others'. From judgment for defendants, plaintiffs appeal.
    Affirmed.
    W(ood •& Wood and J. E. Gilbert, all of Dallas, for appellants. Muse & Muse, of Dallas, for appellees.
   RASBURY, J.

On October 23, 1914, appellants and appellees entered into a preliminary agreement in writing for the leasing of a lot and storehouse thereon, in the city of Dallas, to appellees, for which appellants were authorized agents. Appellees, in substance, agreed to lease the lot and storehouse for five years from January 1, 1915, paying therefor $SOO per month, and to furnish security for such payment satisfactory to the owners, and to ultimately execute a formal lease, such as were then commonly in use in the city of Dallas.

Appellants, for the owners, agreed to secure for appellees by November 15, 1914, three subtenants for as many subdivisions of the storehouse, who would pay an average of $400 per month therefor for the term of appellees’ lease; any improvements necessary for such subtenants to be made by appellees. Appellees also appointed appellants their agents to collect the rent from the subtenants, and agreed to pay as compensation for such services 3 per cent, of all rentals so collected.

Subsequent to the execution of the foregoing preliminary agreement to lease, appellants sued appellees, alleging in substance a compliance on their part with the agreement, and a repudiation thereof by appellees', and consequent damage to them, to be measured by the total amount of the compensation which they would have received, had appel-lees not repudiated the agreement, or the sum of $708.

A number of defenses were urged by ap-pellees, which were in various ways met by appellants, none of which it will be necessary to detail, in view of the conclusion we have reached in the case. The issues of fact raised by the evidence were submitted to the jury upon special issues, or interrogatories, some of which were answered and some not. Appellants, by appropriate motion, sought to have the result declared a mistrial, while appellees by like motion sought judgment in their behalf. Appellees’ motion was sustained, and judgment for appellees rendered.

Appellants present assignments challenging the court’s action in submitting certain special issues, in rendering judgment on the jury’s findings, and in refusing to declare a mistrial upon the failure of the jury to answer several material interrogatories. We have concluded that the judgment of the court, without reference to the appellants’ assignments, and without reference to the failure of the jury to answer some of the issues, and without reference to the grounds upon which the court based its judgment is for other controlling reasons correct, and being so, should be affirmed. The jury found, in answer to special issues submitted by appellants that appellees were to have possession of the storehouse January 1, 1915, and that appellees accepted the provision of the preliminary agreement we have stated. There really was no necessity for submitting such issues to the jury, since they were established without dispute by the contract, and arose thereon as matter of law. In any event, both by the finding of the jury and by the terms of the contract, appellees were bound to accept, and appellants to deliver, possession of the storehouse January 1, 1915. It was then as a consequence incumbent upon appellants to secure for appellees subtenants for the enumerated subdivisions of the storehouse for a term of 5 years beginning January 1, 1915. This by the undisputed testimony they did not do. On the contrary, assuming that those subtenants which the testimony of appellants tends to show they secured were in other respects in compliance with the preliminary agreement, it appears that all subtenants secured by appellants only agreed to lease the subdivisions of the storehouse for a period of 4 years- and .11 months at $400 per month, which was not a compliance with appellants’ covenant that they would secure tenants who would pay that sum for the full term of 5 years. But appellants, by appropriate pleading, alleged that appellees waived or modified that provision of the preliminary agreement, and agreed to accept all subtenants from February 1, 1915, due to the fact that it would require about. SO days to make the improvements required by the subtenants. ' The jury found that it would require SO days to mate the improvements required by the subtenants. They failed to answer an interrogatory, submitted by appellants, inquiring whether appellees agreed to accept such subtenants, beginning February 1, 1915. On that issue the only testimony adduced was that of the witness Rupe, who on direct examination, testified that appellees, in the presence of Weiss, one of the proposed subtenants, and the witness, agreed that as soon as the necessary repairs were made Weiss could move in and start his rent February 1st. On cross-examination the witness said that the effect of the statements of appellees was that the tenants could move in after repairs were made and start their rental from February 1st.

We would be inclined to hold that, in the absence of any testimony disclosing an express consideration for such modification of the contract, the probative force of such testimony was insufficient to support a finding that the lease had in so material a respect been modified. However, it is not necessary to base our holding on such ground. We conclude, conceding, for the purpose of the discussion, the agreement to modify, that such agreement, being in parol, is ineffectual, because within the., statute of frauds. Where the original written contract is within the statute, that is, one required by such statute to be evidenced or proved by writing, the current of authority is to the effect that, in the absence of ambiguity, or considerations or claims of equity, it cannot be modified by concurrent, collateral, or subsequent agreement resting in parol. The foregoing is nearly the language of an eminent author on the subject. 3 Elliott, Contracts, 7, § 1862. Our statute declares that no action may be maintained in the courts of the state “upon any agreement which is not to be performed within the space of one year from the making thereof,” unless the promise or agreement, or some memorandum thereof, shall be in writing and signed by the party to be charged therewith, or by some person by him thereunto lawfully authorized. Vernon’s Sayles’ Oiv. Stats, art. 3965, subd. 5. The preliminary agreement for leasing, as we have stated, contemplated a term of five years, and the parol agreement, which sought to modify, came within the prohibition of the statute, since it sought to ingraft upon the original agreement a material change over its entire life of five years. A case in point is Beard v. Gooch & Son, 62 Tex. Civ. App. 69, 130 S. W. 1022. We conclude, then, that appellants having covenanted to secure for appellees subtenants for the full term of the proposed lease who would pay as much as $400 per month, and having failed to do so, and the alleged parol agreement modifying same being ineffectual, because within the statute of frauds, all other questions become immaterial, for the reason that appellants would in no event be entitled to recover, in the absence of a showing that they had secured the subtenants for the period agreed upon.'

The judgment is affirmed.
      <§=»IPor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HENDRICKS, J.

text:
    McKIBBIN v. PIERCE.
    (No. 1065.)
    (Court of Civil Appeals of Texas. Amarillo.
    Dec. 13, 1916.
    Rehearing Denied Jan. 17, 1917.)
    1. Damages &wkey;>23 — Breach ox Contract— Consequential Damages.
    Where one party has defaulted a contract with another on account of a third party’s default, if third party knew of circumstances creating special damages, such damages are recoverable.
    [Ed. Note. — Eor other cases, see Damages, Cent. Dig. §§ 58, 62; Dec. Dig. &wkey;23.]
    2. Landlord and Tenant <&wkey;116(4) — Tenancy from Month to Month — Termination.
    Where tenant paid rent monthly in advance, agreeing to surrender premises on demand, this was a periodic monthly tenancy, and landlord could not demand premises until expiration of the month.
    [Ed. Note. — Eor other cases, see Landlord and Tenant, Cent. Dig. §§, 395, 400; Dec. Dig. <&wkey;> 116(4).]
    3. Damages <&wkey;22, 23 — Breach ox Contract— “Direct Damages” — “Consequential Damages.”
    Damages which naturally follow the breach of the contract, when the defaulting party is without notice of conditions making special liability, are direct damages, while damages which follow on account of special conditions, known to defaulting party when contract is made, increasing the liability, are consequential damages.
    [Ed. Note. — Eor other cases, see Damages, Cent. Dig. §§ 58-63; Dec. Dig. &wkey;22, 23.
    For other definitions, see Words and Phrases, First and Second Series, Direct Damages; Consequential Damages.]
    4. Damages <&wkey;23 — Consequential—Notice —Protest.
    Where party has notice of special conditions producing increase of liability and makes contract,- protesting he will not be liable for such damages, the other party not consenting thereto, he will be bound to such damages.
    [Ed. Note. — Eor other cases, see Damages, Cent. Dig. §§ 58, 62; Dec. Dig. &wkey;>23.]
    5. Damages &wkey;>23 — Consequential — Contract Referring to — Notice Unnecessary.
    Where agreement is made with reference to special conditions producing increased liability, notice .of such conditions is not necessary.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 58, 62; Dec. Dig. &wkey;>23.]
    6. Landlord and Tenant <&wkey;144 — Agreement to Surrender — Notice of Special Liability.
    Where tenant had notice of landlord’s penalizing contract with future tenant and agreed to vacate, his attempted repudiation of the increased liability will- not excuse him.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 45S, 459, 601.; Dec. Dig. <&wkey;144.]
    •Appeal from District Court, Wilbarger County; J. A. Nabers, Judge.
    Suit by Hall Pierce against H. F. Mc-Kibbin. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    J. Shirley Cook and J. E. Doran, both of Yernon, for appellant. Berry, Stokes & Morgan, of Vernon, for appellee.
   HENDRICKS, J.

Hall Pierce sued H. F. McKibbin to recover damages for the breach of an alleged contract to deliver possession of a certain building in the town of Vernon, and upon the submission of special issues, and findings by the jury, in response thereto, a judgment! was rendered in favor of Pierce, the landlord, against McKibbin, the tenant.

T. L. Pierce, thei father of Hall Pierce, formerly owned the particular brick building occupied by McKibbin; he leased the same to defendant, MeKibbin, for a term of two years, beginning the 1st day of May, 1910, expiring the 1st day of May, 1912; McKib-bin to pay $600 a year rent, payable in installments of $50 per month. At the end of the two years’ term McKibbin held the premises under T. L. Pierce, under a monthly tenancy; the rent at the beginning of this tenancy having been raised to $60 per month.

On March 19, 1913, T. L. Pierce conveyed the premises to his son, Hall Pierce, the plaintiff herein; the periodic monthly tenancy continued as before, at the same rental of $60 per month.

It is claimed by the plaintiff, Hall Pierce, that about the 20th day of April, 1915, while defendant was holding the premises by the month as aforesaid, that he notified McKib-bin, the tenant, through his agent, T. L. Pierce, that he could not continue to use and occupy the premises longer than the 1st day of May, 1915, unless he (McKibbin) “would enter into a written contract for a definite time; that McKibbin refused to enter into such a contract, and agreed that plaintiff should have possession thereof at any time' he might demand it after that time.”

T. L. Pierce continued to act as the authorized-agent of his son, Hall Pierce, the plaintiff herein, and the claim is further made that on the 17th day of September, 1915, defendant, McKibbin, was notified that plaintiff desired possession of said premises on the 1st day of October, 1915, and demanded possession on that date; -that defendant then requested plaintiff to permit him to continue the possession until October 15, 1915; that defendant was then informed that plaintiff had an opportunity of leasing the premises if he could give possession on the 1st day of October, 1915, but that if he could prevail upon Trevathan, the new tenant, to wait until the 15th of October he would comply with the defendant’s request; that Ttrevathan agreed to wait, and plaintiff then agreed with the defendant for the latter to hold possession until the 15th of October, with the distinct understanding that the possession of said premises would be delivered not later than that date, and, rtelying upon defendant’s promises, he (the plaintiff) entered into a contract with Trevathan, leasing the building to him for one year, agreeing to give Trevathan possession on October 15th, and to pay him $10 per day, as liquidated damages, for each day after! October' 15th that he might fail to deliver such possession; that defendant had notice of the terms of the Trevathan contract when he promised to surrender the premises.

The jury found, besides other facts, that McKibbin was renting the store building from Pierce by the month, and that McKib-bin informed Pierce that he would vacate the building by the 15th of Oct$>ber, 1915; also found that $650 would “compensate plaintiif for any reasonable necessary loss * * * by not having possession of the building * * * on the 15th of October, 1915”; and further found that the amount ($650) “would compensate plaintiff for any reasonable necessary loss * * 4 by not having possession of the building delivered on the 1st day of November, 1915.”

In answer to a special issue requested by plaintiff, the jury additionally found that Mc-Kibbin was “holding the building at will.”

The amount found by the jury as reasonable compensation for plaintiff’s loss is not complained of by appellant. It probably could not be questioned but that, where one party has defaulted with another on account of a third party’s default with him, if there is proof of knowledge to the third party at the time of his contract of special circumstances which make different damages, other than those ordinarilyi implied by the contract, the natural and probable effect of the breach, such damages, as consequential damages, are recoverable, whether liquidated or otherwise. Northwestern Steam Boiler & Mfg. Co. v. Great Lakes Engineering Co., 181 Fed. 89, 104 C. C. A. 52; Iowa Mfg. Co. v. Sturtevant Mfg. Co., 162 Fed. 460, 89 C. C. A. 346, 18 L. R. A. (N. S.) 575; Halstead Lumber Co. v. Sutton, 46 Kan. 192, 26 Pac. 444; Feland v. Berry, 130 Ky. 328, 113 S. W. 425; Meyer v. Haven, 70 App. Div. 529, 75 N. Y. Supp. 261; Sutton v. Wanamaker, 95 N. Y. Supp. 525; Illinois C. R. Co. v. Southern Seathing & Cabinet Co., 104 Tenn. 568, 58 S. W. 303, 50 L. R. A. 729, 78 Am. St. Rep. 933; O. H. Perry Tie & Lumber Co. v. Reynolds, 100 Va. 264, 40 S. E. 919; Modem Steel Construction Co. v. English Construction Co., 129 Wis. 31, 108 N. W. 70; Shurter v. Butler, 43 Tex. Civ. App. 353, 94 S. W. 1084.

The last case cited (Shurter v. Butler, supra, 43 Tex. Civ. App. 353, 94 S. W. 1084) was one where a subcontractor delayed furnishing brick to a principal contractor; the latter having been required to pay liquidated damages to a city because of a failure to complete á sewer within a certain time. It appeared that the subcontractor knew when his contract was made that the work had to be completed within a certain time, and that the completion of the sewer depended upon his furnishing the brick promptly.

The other cases cited apply the same principle, and involve a similar state of facts, except that in some of them the augmented damages, arising out of the special course of circumstances, were not measured by a collateral contract for a liquidated amount.

A repeated consideration and analysis of the facts as to the character of the contract of tenancy discloses, we think, this condition: When the two-year term was ended there was a tenancy from month to month, the rent payable monthly in advance. Assuming that Pierce’s theory is supported by the record, that in April, 1915, on account of McKibbin’s refusal to enter into a written contract, it was then agreed that McKibbin would surrender and Pierce could receive the building on demand; however, the record further shows that thereafter, to October 1, 1915, McKibbin continued to pay the rent monthly in advance as before. We think the tenancy was then reconverted into a periodic monthly tenancy. During the period from April, 1915, to October, of the same year, on account of the rent having been paid in advance by McKibbin, Pierce could'not call for the building at any intervening period in the month for the purpose of repossessing the same on demand — this could not occur until the expiration of the monthly period. Chancellor Walsworth of New York, quoting the syllabus, which reflects the opinion, held:

“Where a party enters into the possession of premises under an agreement to accept a lease for twenty months, and subsequently refuses to accept the lease, he becomes by such refusal a tenant at will, or by sufferance, and may be ejected immediately. But if the landlord subsequently accepts rent from the tenant monthly, according to tie original agreement, a tenancy from month to month is created, commencing from the time of entry.” Anderson v. Prindle, 23 Wend. (N. Y.) 616.

While the facts are not the same, we think, though, the principle is applicable. Hence when McKibbin paid and Pierce received the monthly rents, in so far as the demand and the right of re-entry by the, landlord are concerned, they would be measured by the law as applied to the contract, and necessarily re-entry would have to await its termination.

As to the question of alleged contract, with reference to the agreement to surrender the building on the 15th of October, 1915, we interpret the record as disclosing this condition: On the 17th day of September, 1915, Morgan, the agent of Pierce, was sent by the latter to McKibbin to ascertain when Mc-Kibbin would surrender the premises. Pierce and one Trevathan had been, on the same day, previously negotiating for a lease, and the latter, on account of the fall trade, and the character of his business, desired the lease to begin on the 1st of October. Morgan, on his mission, informed McKibbin of that fact, but the latter was apprehensive that he could not surrender the building that early, but stated to Morgan that he would get out the 15th of October, and to so notify the other parties, which' statement Morgan reported to Pierce and Trevathan. Pierce then made the contract with Trevathan, leasing him the building, also agreeing to pay him the sum of $10 per day as liquidated damages for every day he was in default in not delivering the premises. Morgan then reported to McKibbin in effect that Pierce would accept the former’s offer to surrender the premises on the 15th of October, 1015; also informing him at that time of the other contract between Pierce and Trevathan. Morgan testified that he informed McKib-bin—

“that Pierce told me to tell him he would hold him [McKibbin] for the $10 per day if he did not get out of there by the 15th; he said that he would not get under Mr. Pierce’s contract for damages, but that he would back up his own contract, and that he would get out by the 15th.”

Afterwards Trevathan wrote to Pierce that he wanted to be sure that he would get the building on the date mentioned. Before the 15th of October Morgan again went to Mc-Kibbin, testifying as to this visit as follows:

“I went in and asked McKibbin whether he would get out or not, and told him about Tre-vathan making this further inquiry; I told him Trevathan was worried about it, and that Pierce was worried about it and had sent me over there. He said he did not know whether he would get out or not; wanted to know why Trevathan could not run on down at Wichita and wait until he (McKibbin) could get into this other building. I told him all Pierce wanted was to satisfy Trevathan, and he said he was going down to Wichita on some other business in a few days and would see Trevathan about getting him to wait.”

When McKibbin, on the first visit to Morgan, stated that he would deliver the building to Pierce on the 15th of October, it was not stated to McKibbin, nor contemplated by him,’ that there was any expectation of a penalty contract to be entered- into between Pierce and Trevathan, as to the lease of the building. Such a special circumstance, affecting the measure of damages, cannot be imputed to McKibbin at that particular time.

Was there a contract between McKibbin and Pierce, obligating the former to deliver the premises to the latter on the 15th of October, 1915? If there was a contract, could McKibbin prevent his liability, which would ordinarily be produced by a knowledge of the special conditions, on account of his statement that he refused to get under Pierce’s contract with Trevathan? We consider the two questions as merging into each other in this solution.

Associate Justice Denman said:

“The rule seems to be settled that plaintiff, in order to recover special damages for breach of a contract, must show that at the date of the contract defendant had notice of the special conditions rendering such damages the natural and probable result of such breach, under circumstances showing that the contract was to some extent based upon or made with reference to such conditions.” M., K. & T. Ry. Co. v. Belcher, 89 Tex. 429, 430, 35 S. W. 6, 7.

The appellant predicates his denial of liability upon the theory that no contract was made; neither could the special damages be recovered as a result thereof if one were made, because the same were excluded by McKibbin when he made the statement that he refused to “get under” Pierce’s contract with Trevathan.

We do not understand that any court has ever held, ¿ossibly with one exception, that the parties have in reality contracted for the special damages as a result of the breach where the special conditions have been merely imputed to the defaulting party when he made the contract; we think the philosophy of the rule is that the law makes the notice a basis, or a precedent condition, to the enlarged liability.

It is true we find expressions, and they are no doubt correct, when properly conceived, that the contract must be to some extent based upon the special circumstances, or made with reference thereto. “This appears'from the language of the courts in many cases where the subject is discussed.” Sedgwick on Damages, vol. 1, § 159.

The same author says, while this assertion is made, it is also the rule that the notice of special conditions need not be a part of the contract. Sedgwick, vol. 1, § 160. This author says that Justice Blackburn, in Horn v. Midland Railway (an English case) L. R, 8 C. P. 131, “said that in his opinion notice did not change the rule of damages unless it were such as to create a special contract.”

Sedgwick’s criticism of this doctrine attempted to be announced seems convincing. “It is- to be observed that if this opinion is sound, it does away at once with the whole doctrine of notice. For if the notice of special circumstances is incorporated into the contract, that is, if the contract provides against the special loss, the loss, if it happens, is not a consequential, but is a direct, result of a breach of the contract, and, as such, is, of course, recoverable. The opinion of Lord Blackburn has not been supported by any decided case, and the weight of authority is against it.” Id. § 160.

We will use the terms. “direct” and “consequential,” as applied to damages, whether wholly appropriate or not. Damages which naturally follow from the breach of a contract, when the defaulting party is without notice of any special conditions that would increase the measure of liability, are “direct”; damages which follow on account of knowledge of special conditions, imputed to the defaulting party when the contract was made, and increasing the standard of liability, are “consequential.”

In the case of direct damages the law necessarily imposes the measure whether or not the defaulting party possessed any knowledge whatever of the implied and natural consequences of the breach, or of the amount the other party would suffer on account of such breach. We also find many cases where, if the knowledge is complete of the special conditions and course of circumstances, the amount of the loss is not necessary to be known in order to charge the defaulting party with the consequential damages — the law would continue to fix the measure, and the liability, based upon the knowledge of the special conditions; the defaulting party would not have to actually contemplate the amount of damages which would ensue if they follow as a consequence of the special conditions. We assume that, if a party were to actually make a contract upon a consideration, but before making the same merely states to the other contracting party that he would not in the event of 'default be bound by any direct damages, which the law would impose on account of the breach (contradis-tinguished from a contract where upon notice of special conditions consequential damages would ensue) if not accepted by the other as a part of the contract actually made, the law would continue to impose direct damages as the result of a breach. We think probably that the“ language used in the opinions and by law-writers that a contract must to some extent be based upon the special circumstances, or made with reference'thereto, it is meant that knowledge or notice when imposed in the course of dealing as a preliminary to the execution of the contract is merely the predicate upon which the consequential damages would follow; otherwise parties could make such a statement and continue to make contracts and claim that the same were not made with reference to. the special conditions, and exclude damages which the law imposes.

The law, if the party had the notice, impresses the rule, and the party cannot exclude the rule by his mere statement that he will not be bound if he continues in making the contract. If the parties contract around the special circumstances, as Sedgwick well says, the. question of notice is not an element which produce the damages; the agreement, expressly contracting with reference to the special conditions, would do away with the element of notice as a legal principle. If such special damages, dependent upon notice, were really a part of the contract in a contractual sense, as argued by appellant, we would ordinarily be met in cases of this character with the opposition rule, in attempting to prove the damage, that the same adds to a written contract and should be excluded.

“A verbal notice has been allowed to change the rule of damages, although the contract was in writing.” Sedgwick on Damages (9th Ed.) vol. 1, § 160. Hence if a party about to enter into a contract has notice communicated to him by the other party of special conditions producing an increased liability, and actually thereafter makes the contract, though protesting that he will not be liable for such increased damages, if the other party does not agree that such damages will be excluded, we think the law, as a matter of policy, and rule, would stamp the liability as a result of the contract, though the party attempted to exclude them. His protection would be a refusal to make the contract.

At first, we were concerned with the thought that when Morgan communicated to McKibbin the special conditions and McKibbin refused to be bound by the rule of damages arising on account of the special conditions, that the minds of the parties did not meet because McKibbin refused to accept as a part of his contract any special liability arising therefrom; Pierce, through Morgan, never assented to the protest; the record also shows that after the facts were communicated to McKibbin he continued to make the promise that he would deliver the building on the 15th of October, 1915, and it is inferable that thereafter on account of the contract having been made he went to Wichita Palls for the purpose of getting Trevathan to wait and continue his business at that place. There is some inference from the testimony of Morgan of an after recognition by McKibbin that he made a contract. If the doctrine is in reality dependent upon the notice properly communicated, as a preliminary condition to liability ensuing from the contract, and is not dependent upon the fact that they enter into the contract in a contractual sense, we do not think that an attempted repudiation of this liability to which the other party does not agree — of something which does not technically enter into the contract — prevents the minds of the parties meeting upon an offer and acceptance consummated between the parties upon a valuable consideration. The- notice, of itself, continues the basis, applied to which the law stamps the liability.

We think the question considered is the controlling one in the case, and the discussion of other assignments is unnecessary.

The judgment of the trial court is affirmed.
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