text:
    ATCHISON, T. & S. F. RY. CO. et al. v. BOYCE et al.
    (No. 680.)
    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 28, 1914.)
    1. Caeriebs (§ 223) — Carriage or Rive Stock — Damages roe Delay — Defenses.
    Where a carrier knew that an unprecedented flood had carried away a bridge on its line, but accepted a shipment of cattle without informing the shipper of that fact, it cannot justify delay on account of the flood; for it was its duty, if the shipment would be delayed, to notify the shipper, so that he might seek accommodations on other lines.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 932; Dec. Dig. § 223.]
    2. Appeal and Error (§ 1140)— Determination — Remittitur.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2014] authorizing a remittitur in vacation, a judgment must be affirmed where appellee, after the perfection of an appeal, remitted damages improperly awarded, though costs will be taxed against the appellee.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4462-4476; Dec. Dig. § 1140.]-
    3. Carriers (§ 183) — Actions»— Joint Liability.
    Under the amendment to the Interstate Commerce Act (Act June 29, 1906, c. 3591, § 7, 34 Stat. 593 [U. S. Comp. St. 1913, § 8592, pars. 11, 12]) § 20, providing that the holder of a bill of lading shall not be deprived by that section of any right he has under existing law, and that the carrier issuing the bill of lading shall be entitled to recover from the carrier on whose lines loss occurs the amount which it may be required to pay to the owner, a shipper of live stock may jointly sue the initial and connecting carrier for damages for delay occurring on the line of the connecting carrier.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 830, 831; Dec. Dig. § 183.)
    4. Appeal and Eeeok (§ 742) — Assignments of Eeeoe — Sotitcienct.
    An assignment of error unaccompanied by the required statement will not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    Appeal from Dallam County Court; T. S. Mills, Judge.
    Action by J. H. and D. H. Boyce, partners as Boyce- Bros., against the Atchison, Topeka & Santa Fé Railway Company and others. From a judgment for plaintiffs, certain defendants appeal.
    Affirmed.
    Terry, Cavin & Mills, of Galveston, Madden, Trulove & Kimbrough and H. C. Pipkin, all of Amarillo, Thompson & Barwise, of Ft. Worth, and Moore & Powell, of Dalhart, for appellants. W. Boyce, of Amarillo, for appel-lees.

      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HUFF, C. J.

This is an action instituted by the appellees, Boyce Bros., a copartnership composed of J. H. and L. H. Boyce, against the Atchison, Topeka & Santa Fé Railway Company, the Southern Kansas Railway Company of Texas, and the Ft. Worth & Denver City Railway Company, for damages alleged to have been sustained by reason of the delay in the shipment of 59 head of cattle, under a contract of through shipment from Hartley, Tex., to St. Joseph, Mo., over the lines of the defendant railways. Trial was had in the county court of Dallam county, and judgment rendered for appellees against the Ft. Worth & Denver City Railway Company and in its favor against the Atchison, Topeka & Santa Fé Railway Company.

The appellant the Atchison, Topeka & Santa Fé Railway Company presents its first assignment that the court erred in refusing its third specially requested instruction to the jury, which charge is to the effect, after defining “ act of God ” and “unprecedented flood,” if appellant exercised ordinary care to build and maintain a bridge across Driftwood creek at the point of the washout, to accommodate the ordinary and usual flow of water thereunder and floodwaters, and so constructed and maintained said bridge, that it was sufficient to withstand and accommodate ordinary and usual floodwaters and such as had been before known in that country and might have been reasonably anticipated by the exercise of caution, prudence, and foresight, and if the jury found—

“on or about the 5th day of August, A. D. 1911, there came an unprecedented and unexpected flood down said stream and under said bridge, so that it washed out a portion of said bridge, so that it made said bridge impassable by trains of this defendant, and if you further find and believe from the evidence in this case that such washout was of such an unprecedented nature that it was the act of God, as same is above defined, and you further find and believe from the evidence that said defendant exercised ordinary care to properly prepare said bridge for transportation of said shipment thereover at the earliest time after said washout in the exercise of ordinary care, and if you further believe and find from the evidence that the delay of said cattle or any part thereof was caused directly and proximately by said unprecedented flood washing out said bridge, then in that event you will find for the defendant for all the damages, if any, by reason of the delays to said shipment incident to said unprecedented flood and washout of said bridge.”

The appellant, by its answer, with reference to the matter of the washout of the bridge, alleged that the bridge was a good and substantial one maintained for many years prior to August, 1911; that it had nev-ed been washed out by the rising or flooding of the stream; that by reason of an extraordinary heavy rain or cloud-burst it became flooded as never before. The flood was unusual, unprecedented, and could not, in the exercise of ordinary care, prudence, and foresight, have been foreseen, anticipated, etc.

The appellees, Boyce Bros., by a supplemental petition, alleged in reply thereto that, if such washout was caused by an unprecedented flood, nevertheless the railroad would be responsible, because said washout occurred before the cattle were loaded at Hartley, and before they were accepted by the Santa Fé lines at Amarillo, and that such fact was well known to the defendants at the time of acceptance of such shipment, and was unknown to appellees.

The defendant the Ft. Worth & Denver City Railway Company alleged that it notified the other defendants of such shipment, and that the other defendants accepted said shipment for transportation. The evidence shows that the cattle were loadéd at Hart-ley, Tex., at 12:50 p. m. August 5th, and that they arrived at Amarillo over the Denver road, and were by it delivered to the Southern Kansas Railway Company of Texas at 5:30 p. m. the same day. The Ft. Worth & Denver City Railway Company gave the Atch-ison, Topeka & Santa Fé Railway Company advance notice of the loading of the shipment at 12:50 p. m. August 5th. The shipment left Amarillo August 5, 1911, over the line of the Southern Kansas Railway Company of Texas, at 6:40 p. m., and reached Canadian, a distance of 99 miles, at 9:55 p. m. that day. It left Canadian, Tex., at 10:50 p. m. August 5th, and arrived at Wynoka, Okl., at 10:20 a. m. August 6, 1911, and on account of the washout there were no trains, outside of work trains, taken out of Wynoka August 6, 1911. The cattle were unloaded at Wynoka and held there until the succeeding day,* leaving that point at 12:45 p. m. August 7, 1911. The bridge was washed out at 10:30 a. m. August 5, 1911, and the superintendent of that road had notice of such fact at 11 a. m. on that date. The first train passed over the bridge alter its repair at 12:10 p. m. August 7th. The evidence introduced by appellants tends to show that the flood was an unusual one and unprecedented in that neighborhood. It also tends to show that it used ordinary care in constructing and maintaining a bridge across the stream, giving to the bridge sufficient strength to withstand an ordinary and usual flood on the creek at the point where its line of road crossed. Boyce Bros, had no notice of the washout at the time they loaded out the cattle for shipment. The trial court instructed the jury as follows:

“Although you may find said shipment of cattle was delayed in course of transportation, still, if you should further find and believe from the evidence that such delays, if any, or any part thereof was caused by a washout on the line of the Atchison, Topeka & Santa Eé Railway Company, as alleged, and yon should further find that said washout was caused by an unprecedented flood, then the defendant the Atchison, Topeka & Santa Eé Railway Company and its connecting line would not be liable to the plaintiffs for damages caused by any delay resulting from said washout, unless you should further find that the defendant the Southern Kansas Railway Company of Texas, in accepting said shipment at Amarillo, Tex., had notice of the fact of the washout, or that the Atchison, Topeka & Santa Fé Railway Company was guilty of negligence in failing to inform its connecting line, the Southern Kansas Railway Company of Texas, or the Ft. Worth & Denver City Railway Company, of the fact of such washout on said line of road. But if you find and believe from the evidence that said washout had already occurred at the time of the acceptance of said shipment at Amarillo, Tex., by the defendant the Southern Kansas Railway Company of Texas, and find that said defendant at such time had knowledge of the condition with reference to said washout, then said railway companies, the Southern Kansas Railway Company of Texas and the Atchison, Topeka & Santa Fé Railway Company, nevertheless, would be responsible for the delay, although it was caused by a washout resulting from an unprecedented flood. Or, if you should find that said washout occurred prior to the acceptance of said shipment of cattle at Amarillo, and that, in the exercise of ordinary care, it was the duty of the Atchison, Topeka & Santa Fé Railway Company to notify its connecting lines, the Southern Kansas Railway Company of Texas or the Ft. Worth & Denver City Railway Company, of the condition existing on its said line, and you further find that it failed to give notice to said other defendants or either of them, and that such failure to give such notice was negligence, and that by reason thereof said shipment was accepted either by the Ft. Worth & Denver City Railway Company or by the Southern Kansas Railway Company of Texas in ignorance of the condition existing on the line of the Atchison, Topeka & Santa Fé Railway Company, and that the plaintiffs were also ignorant of such condition at the time of the delivery of said shipment at Hartley, Tex., and its acceptance by the Southern Kansas Railway Company of Texas at Amarillo, then, and in such event, the defendant the Atchison, Topeka & Santa Fé Railway Company would be responsible for the damages, if any, resulting from the delay, if any, that may have been caused by the washout on its line.”

In paragraph 4 the court defined the term, “unprecedented flood.” The effect of this charge was to tell the jury that the appellees could not recover if the delay was caused by the washout occasioned by an unprecedented flood, unless they further find that the washout occurred before the cattle were accepted by either of the roads for shipment, and that appellant was negligent in not notifying the shipper and the connecting carrier of the then condition of the road. We believe the charge requested by appellant, if given as requested, without'the qualification added by the trial court, would have been error under the facts of this case. If there were unusual conditions existing at the time of receiving the cattle 'for transportation and because of the then condition of the road, and the shipment could not be made in the usual time, the carrier should have notified the shipper of such condition. Such notice would have given the shipper the opportunity to choose the different courses then open to Mm. Railway Co. v. Stark Grain Co., 103 Tex. 542, 131 S. W. 410; Nelson v. Great Northern Railway Co., 28 Mont. 297, 72 Pac. (7), on page 651; Railway Co. v. Word, 159 S. W. 383. If the delay was caused by the washout, which could not have been prevented by the use of ordinary care in the construction and maintenance of the bridge across the stream, yet, if the injury to the shipment of cattle was' brought about by the negligent failure of appellant to notify the appellees of the then Known condition of the road, or, when the cattle were accepted for transportation, if the appellant then knew of the unusual condition, and undertook to carry the cattle to their destination within a reasonable time, we think it should he required to answer for the consequences, if such acts were negligent, as though this negligence on its part was the sole cause. Fentiman v. Railway Co., 44 Tex. Civ. App. 455, 98 S. W. 939; Railway Co. v. Boyce, 39 Tex. Civ. App. 195, 87 S. W. 395.

The second assignment is that the verdict of the jury and the judgment of the court is excessive, in that a recovery was allowed for a decline in the market on the cows involved in the shipment, when the evidence does not show a decline in the market on the cows. In vacation the appellees filed the following:

“Now come the plaintiffs, J. H. Boyce and D. H. Boyce, and remit the sum of $46.16 of the judgment rendered in this court in the above numbered and entitled cause on the 30th day of January, 1914, the sum of $46.16 hereby remitted being the sum of $37.26, with interest thereon from the 9th day of August, 1911, to this date — said sum of $37.26 being the amount in the judgment rendered herein on account of decline in market on cows in said shipment, to wit, 24,840 pounds at 15 cents per cwt.; and the said J. H. Boyce and L. H. Boyce, composing; said partnership, do hereby release said defendant in said judgment therefrom as to the extent of said sum of money, to wit, $46.16.”

This remittitur was filed March 9, 1914, in the county court. The motion for new trial set up the error herein complained of, and was presented to, and overruled by, the court February 7, 1914. In tbe order overruling the motion notice of appeal was given. Appellant the Atchison, Topeka & Santa Fé filed its appeal bond February 27, 1914, and the Ft. Worth & Denver City Railway Company its bond February 21, 1914. The trial court adjourned February 7, 1914.

The appellees having remitted this damage recovered in the judgment after appeal had been perfected under article 2014, Yernon’s Sayles’ Civil Statutes, we think the judgment should be affirmed as to appellant for the amount of the judgment, less the remit-titur, but that appellees should pay the costs of this appeal. White v. Glover, 31 Tex. Civ. App. 8, 71 S. W. 319; Insurance Co. v. Herbert, 48 Tex. Civ. App. 195, 106 S. W. 421.

The Ft. Worth & Denver City Railway Company assigns error No. 1, and claims that there was error on the part of the trial court in overruling its second special exception to plaintiffs’ petition, which is to the effect that the plaintiffs were attempting to hold it, as the initial carrier, for all the damages and each of the defendants for the same damages, asking the trial court to require the plaintiffs to elect whether they are attempting to hold the defendant as an initial carrier or under its common-law liability. Plaintiffs, appellees herein, sued the defendant railroads jointly for the damages, alleging a contract entered into between themselves and the Ft. Worth & Denver City Railway Company for a through shipment of 59 head of cattle from’ Hartley, Tex., to St. Joseph, Mo., over the lines of the road operated by the defendants from the point of origin to point of destination. The allegations clearly bring the case under the amendment to the Interstate. Commerce Act, §20. That portion of the act applicable is as follows:

“Provided that nothing in this section shall deprive any holder of such receipt or bill of lading, of any remedy or right of action which he has under existing law; that the common carrier, railroad or transportation company issuing such receipt or bill of lading shall be entitled to recover from the common carrier, railroad or transportation company on whose line the loss, damage or injury shall have been sustained the amount of such loss, damage or injury as it may be required to pay to the owners of such property as may be evidenced by any receipt, judgment or transcript thereof.”

The act was passed for the benefit of the shipper. He can sue the initial carrier alone or any one of the connecting carriers, or all jointly -for the damages. Railway Co. v. Carl, 227 U. S. 639, 33 Sup. Ct. 391, 57 L. Ed. 683; Railway Co. v. Ray, 127 S. W. 281; Railway Co. v. Word, 159 S. W. 375; Railway Co. v. Ward, 169 S. W. 1035. We do not understand that an election can be required where a party’s rights are analogous, consistent, or concurrent. As we understand, under the Interstate Commerce Act, the contract is made by the initial carrier for all connecting carriers, by the terms of which each and all are bound, and a failure of duty or the negligence of either gives the shipper a right of action against either or all under the act against the initial carrier for all the damages and the connecting carriers for the damages occurring on their respective lines.

The second assignment of the Ft. Worth & Denver Railway Company is overruled. There is no statement under this assignment, such as required by the rules, and we cannot therefore tell therefrom whether the judgment was excessive or not, as asserted under the assignment.

The third assignment has been discussed under the Atchison, Topeka & Santa Fé Railway Company’s second assignment. It is therefore unnecessary to notice this assignment further.

The judgment of the trial court, after allowing the remittitur filed, will be affirmed, but the appellees will be taxed with the costs of this appeal.


source: Caselaw Access Project

author: DUNKLIN, J.

license: Public Domain

text:
    GULF, T. & W. RY. CO. v. DICKEY.
    (No. 8011.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Oct. 31, 1914.
    Rehearing Denied Dec. 12, 1914.)
    1. Appeal and Error (§§ 1040, 1050) — Harmless Error — Pleading—Evidence.
    Where, in an action for injuries to plaintiff’s eight year old son from being scalded while on a locomotive in charge of a hostler, the uneontradicted evidence showed that the boy’s presence was known to the hostler, error, if any, in overruling- exceptions to the allegations of the petition that defendant made a practice of permitting children of tender years to enter and ride upon its engines and in admitting testimony to sustain such allegations was harmless.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. ’ §§ 1068, 1069, 4089-4105, 4153-4157, 4166; Dec. Dig. §§ 1040, 1050.]
    2. Appeal and Error (§ 1050*) — Harmless Error — Admission oe Evidence.
    Where, in an action for injuries to plaintiff’s son from being scalded while on a locomotive in charge of a hostler, the uncontradicted evidence showed that the presence of the boy was known to the hostler, the admission of evidence of statements by the hostler to the boy’s grandmother that he liked to have children talk to him while he was at work and the grandmother’s reply that she could not understand what manner of man the hostler was that he would allow a child around the engine, if error, was harmless.
    [Ed. Note — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dec. Dig. § 1050.]
    3. Appeal and Error (§ 547) — Presentation Below — Instructions.
    Assignments of error complaining of instructions to which no proper bills of exception were reserved below will be overruled.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2427, 2429-2432; Dee. Dig. § 547.]
    4. Appeal and Error (§ 553) — Bill oe Exceptions — Objections and Order.
    A statement of facts contained exceptions to the court’s charge, which were signed by attorneys for defendant and marked -filed by the clerk. It also appeared that an order reading,

      “On this day came on to be heard the objections and the exceptions of the defendant to the court’s general charge, * * * and the court * * * is of the opinion that the law is against said objections and exceptions, and it is * * * ordered * * * that * * * same are hereby in all things overruled, to which the defendant excepted,” was entered on the minutes, dated the same as the date of the filing of the exceptions to the charge, and of the court’s general charge. Held, that the purported objections and the order of the court so entered did not constitute a bill of exceptions to the charge given.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2461, 2462, 2465-2471; Dee. Dig. § 553.]
    5. Negligence (§ 138) — Refusal of Instruction — Evidence.
    Where, in an action for injuries to plaintiff’s son from being scalded while on a locomotive in charge of a hostler, the hostler admitted that he knew the boy was on the engine when he turned on the hot water and scalded him and made no previous effort to exclude him from the engine, it was not error to refuse an instruction that the uneontradicted evidence showed that the boy was on defendant’s engine without invitation, and that defendant owed him no duty except not to willfully or wantonly injure him.
    [Ed. Note. — Eor other cases, see Negligence, Cent. Dig. §§ 354^370; Dec. Dig. § 138.]
    6. Trial (§ 194) — InsTRUCTioN—Province of Jury — Negligence.
    A requested instruction that, if the hostler cut off the valve through which the hot water escaped, and thereafter some person, unknown to the hostler, opened the valve, the verdict should be for defendant was properly refused; it being, in effect, a peremptory instruction that the hostler was not negligent in allowing the boy on the engine and in turning on the injector without investigating to discover whether the valve connecting the hose with the injector was closed.
    [Ed. Note. — For other eases, see Trial, Cent. Dig. §§ 413, 436, 439-441, 446-454, 456-466; Dec. Dig. § 194.]
    7. Negligence (§ 139) — Refusal of Instruction-Injury to Child.
    In such action an instruction that the hostler was not negligent unless he knew the valve was open when he turned on the injector or, unless he intentionally and wantonly inflicted the injury, was properly refused.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 371-377; Dec. Dig. § 139.]
    8. Appeal and Error (§ 547) — Presentation Below — Instructions.
    Error in such case could not be predicated on the refusal of instructions submitting the issue of the hostler’s negligence in turning on the water and making defendant’s liability hinge on an affirmative finding on that issue, where no proper bill of exceptions was taken to the court’s charge on the issue of liability.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 2427, 2429-2432; Dec. Dig. § 547.]
    9. Damages (§ 177) — Personal Injuries— Measure of Damages — Admission of Evidence.
    Plaintiff’s testimony as to the amount he was earning was inadmissible in such case to show, as an element of the damages recoverable, the value of the time lost by him while engaged in nursing the injured boy.
    [Ed. Note. — For other cases, see Damages, Cent. Djg. §§ 466, 494; Dec. Dig. § 177.]
    Appeal from District Court, Baylor County; Jo. A. P. Dickson, Judge.
    Action by William Dickey against the Gulf, Texas & Western Railway Company. From a judgment for plaintiff, defendant appeals.
    Affirmed conditionally.
    Ben B. Cain, of Dallas, Sporer & McClure, of Jacksboro, and J. A. Wheat, of Seymour, for appellant. D. A. Holman, of Seymour, for appellee.

        For other oases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   DUNKLIN, J.

Maryland Dickey, the eight year old son of William Dickey, was scalded while on a locomotive owned by the Gulf, Texas & Western Railway Company, and while the locomotive was in charge of Ed Moss, its hostler. At the time of the injury the locomotive was at a station and Moss was preparing the same for a trip. Moss turned on what is called the injector in order to refill the boiler with water from the engine tank. At the time he did so hot water and steam escaped from a hose lying on the floor of the engine cab and badly scalded Maryland Dickey, who was then upon the engine. The hose was connected with the injector by means of a valve. When this valve was closed no water could escape through the hose. The hose was used to sprinkle down the coal in the tender in order to settle the dust, and, in order to do this, it was necessary to open the valve connecting it with the injector. Moss was engaged in loading the tender with coal, and had already sprinkled the same by using the hose in the manner indicated. It seems that after doing this he shoveled more coal into the tender from the coal bin, then went back to the engine and turned on the injector. He testified that after sprinkling the coal he closed the valve connecting the hose with the injector, and that when he turned on the injector he did not know the valve was open.

This suit was instituted against the railway company by William Dickey, father of the boy, to recover damages for loss of services of the boy, for services of plaintiff and his wife in nursing the boy, and for expenses for his medical treatment while suffering from the injuries he sustained. From a judgment in favor of plaintiff, the defendant has appealed.

One of the contentions made by the defendant was that, without the knowledge of Moss, the valve in question must have been opened by Maryland Dickey or his brother, another boy who was also upon the engine with him, or by some other person unknown to Moss.

Several assignments of error have been presented to the action of the court in overruling special exceptions to certain portions of plaintiff’s petition containing allegations that defendant had made a practice of permitting and inviting children of tender years residing in that vicinity to enter and ride upon its engines, a place of known danger to children. Assignments have also been presented to the admission of testimony tending to prove those allegations. All of those assignments are overruled, because the proof shows without controversy that the presence of the boy in the cab of the engine was known to the hostler at the time he turned on the injector. For the same reason there was no reversible error in admitting proof of declarations made by Moss, on the morning following the accident, to the grandmother of the boy, and her replies thereto; such declarations of Moss being, in effect, that he liked to have children come around and talk to him while he was at work, and the statement by the grandmother being that the child had been burned up and she could not understand what manner of man Moss was that he would allow a child around such a place as the engine.

Several assignments are presented to the charge given by the court to the jury, all of which are overruled, for the reason that no proper bills of exception were reserved to the instruction. We find in the statement of facts certain exceptions to the court’s charge which are signed by attorneys for the defendant and marked filed by the clerk of the court. We also find an order of the court entered upon the minutes dated January 8, 1914, which is the same date of the filing of the exceptions to the charge and of the same date that the court’s general charge was filed. Said- order of the court reads as follows:

“On this day came on to be heard the objections and the exceptions of the defendant to the court’s general charge, which were presented to the court before the reading of his charge to the jury, and, the court having heard the same, he is of the opinion that the law is against said objections and exceptions, and it is therefore ordered and considered by the court that the same be, and the same are hereby, in all things overruled, to which the defendant exempted.”

Such, purported objections and- the order of the court so entered upon the minutes did not constitute a bill of exception to the charge given. It is well settled that objections not taken to a charge given by the court must be shown by bills of exception. Objections to the charge which do not constitute a part of a bill of exception have no proper place in the record, and, if that be true, we cannot assume, as a matter of law, that the objections to the court’s charge appearing in the record were the objections considered by the court and referred to in the order entered upon the minutes copied above. Cleburne Street Ry. Co. v. Barnes, 168 S. W. 991; Taylor v. Butler, 168 S. W. 1004; Mutual Life Ins. Co. v. Rhoderick, 164 S. W. 1067; Simpson v. Tex. Tram Ry. Co., SI S. W. 655, and decisions there cited; Railway Co. v. Wad-sack, 166 S. W. 42.

Proper bills of exception were taken to the refusal of several special instructions requested by the defendant, and to which refusal several assignments of error are presented. Some of the instructions so requested were, in effect, that it was shown by un-contradicted evidence that Maryland Dickey was upon the defendant’s engine without invitation, and that defendant owed him no duty except not to willfully or wantonly injure him. A sufficient answer to that contention is that, according to the testimony of Moss himself, he knew that the boy was upon the engine at the time he turned on the hot water and scalded him, and at that time made no effort to exclude him from the engine before turning on the water.

By requested charge No. 3 defendant sought to have the jury told that, if Moss cut off the valve connecting the injector with the hose after he had sprinkled the coal, and that between that time and the time he went back into the engine and turned on the injector the valve was opened by Maryland Dickey, or his brother, or some person unknown to Moss, then a verdict should be returned for the defendant. This instruction was properly refused, because'it was, in effect, a peremptory instruction that Moss was guilty of no negligence in turning on the injector while the child was upon the engine without making some investigation to discover whether or not the valve connecting the hose with the injector was closed, nor in permitting the presence of the child upon the engine at that time.

Special instruction No. 4 was properly refused, because it, in effect, embodied the proposition that Moss was guilty of no negligence, unless he knew the valve was open at the time he turned on the injector, or that he intentionally or wantonly inflicted the injury.

By special charges Nos. 5 and 7 the issue of negligence vel non on the part of Moss in turning on the water was requested to be submitted as a disputed issue, and the liability of defendant made to hinge upon an affirmative finding upon that issue. Appellant cannot complain of the refusal of these instructions, since no proper bill of exception was taken to the charge of the court upon the issue of liability, as noted already, which, therefore, must be considered as having been approved by the appellant. Cleburne Street Ry. Co. v. Barnes, 168 S. W. 991; McKenzie v. Imperial Irr. Co., 166 S. W. 495; Ry. Co. v. Sharpe, 167 S. W. 814; Lester v. Hutson, 167 S. W. 321; Saunders Live Stock Com. Co. v. Kincaid, 168 S. W. 977.

Over objection by the defendant, the plaintiff, William Dickey, was permitted to testify that, while engaged as a carpenter and working upon a certain house, he had been receiving $2.50 a day, and was furnished a horse and buggy to go and return from his work daily. The testimony was offered' by the plaintiff to prove the value of the time he lost while engaged in nursing the injured boy. The objection urged to that testimony was that the same was no proper prooí of the value of plaintiff’s services in nursing the boy. The plaintiff was also permitted to testify, over defendant’s objection, that the time lost from his business while nursing his boy was reasonably worth $220. One of the objections to this testimony likewise was that it did not relate to the correct measure of damages. Clearly, the testimony of the amount plaintiff could have earned in any business that he was pursuing or could follow was not admissible to prove the value of his services in nursing the boy, and the error in admitting it was especially harmful to the defendant, in view of the fact that the court, in charging upon the measure of damages, told the jury that, in the event of a verdict for plaintiff, he should be allowed the value of the time so lost. Hence these assignments must be sustained.

For this error the judgment must be reversed, and the cause remanded, unless ap-pellee shall, within ten days from the date of this opinion, file a remittitur of $220. If such remittitur is so filed, then the judgment will be affirmed.


author: . DUNKLIN, J.

text:
    WILLIAMS v. PHELPS.
    (No. 8031.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Nov. 7, 1914.
    On Motion for Rehearing, Dec. 12, 1914.)
    1. Brokers (§ 49) — Right to Commission-Performance oe Contbact.
    Where a broker procures the execution of an enforceable written contract of purchase on the terms authorized by the principal, he has earned his commissions.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 70-72; Dee. Dig. § 49.]
    2. Brokers (§ 84) — Action for Commission —Burden of Proof.
    Where a broker's written employment contract authorized only a sale, the burden was on the broker, in an action for commissions on an exchange, to show that his principal and the other party to the exchange had reached a definite agreement.
    [Ed. .Note. — For other cases, see Brokers, Cent. Dig. §§ ,104, 105; Dec. Dig. § 84.]
    3. Evidence (§ 445) — Parol Evidence — Broker’s Employment Contract.
    Where, in a broker’s action for commission on an exchange of properties, it appeared that plaintiff’s employment contract authorized him only to sell, evidence of a parol agreement between plaintiff and defendant that defendant would pay no commission on an exchange of properties, unless the exchange should be fully consummated, was properly admitted.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2052-2065; Dec. Dig. § 445.]
    4. Appeal and Error (§ 1040) — Harmless Error — Pleading-.
    In a broker’s action for commission on an exchange of properties, the overruling of an exception to a paragraph of the answer alleging that the value of the property for--which defendant agreed to ■ trade was falsely represented to him, if error, was harmless, where no such issue was submitted to the jury, and no- assignment was presented to the admission of any testimony thereon.
    [Ed. Note. — For other cases, see Appeal and Error. Cent. Dig. §§ 4089-4105; Dee. Dig. § 1040.]
    5. Appeal and Error (§ 1040) — Pleading— Harmless Error.
    In a broker’s action for a commission on an exchange of property, error could not be assigned to the overruling of exceptions to allegations of the answer alleging that the contract of exchange was invalid, where no Bill of exceptions was taken to the court’s instruction that such contract was nonenforceable for uncertainty.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 4089-4105; Dec. Dig. § 1040.]
    6. Brokers (§ 85) — Action for Commissions — Execution of Oral Contract — Evidence.
    Where, in a broker’s action for commission on an exchange of properties, the evidence was conflicting whether any definite oral agreement of exchange was made, evidence of the market values of the respective properties was properly admitted.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 106-115; Dec. Dig. § 85.]
    7. Appeal and Error (§ 1052) — Harmless Error — Admission of Testimony.
    Under Rules of Courts of Civil Appeals, rule 62a (149 S. W. x), providing that no judg ment shall be reversed for immaterial errors, any error in admitting testimony as to value over an objection that the witnesses were not properly qualified was not ground for reversal, where such testimony related only to a collateral circumstance and other witnesses, who were qualified, testified to the same effect.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4171-4177; Dec. Dig. § 1052.]
    8. Trial (§ 36*) — Best Evidence — Facts Not Controverted.
    Where, in a broker’s action for commission, the execution of the written, contract of employment was not disputed, the exclusion of another instrument offered by plaintiff to prove such employment was not error.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 89; Dec. Dig. § 36.]
    9. Appeal and Error (§ 547) — Presentation Below — Instructions,
    Assignments of error complaining of instructions to which no proper bills of exceptions have been taken will he overruled.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2427, 2429-2432; Dec. Dig. § 547.]
    110. Appeal and Error (§ 553) — Bill of Exceptions — Objections Below — Instructions.
    Objections to the charge which, do not show that they were presented before the charge was read, or that they were overruled and exception taken, will not be considered on appeal, though they are signed by plaintiff and marked “Approved” by the trial judge.
    [Ed. Note. — For other cases, see Appeal and 'Error, Cent. Dig. §§ 2461, 2462, 2465-2471; Dec- Dhr. § 553.]
    11. Brokers (§ 86) — Action fob Commission —Sufficiency of Evidence.
    Evidence, in a broker’s action for commissions on an exchange of properties, held to sustain a verdict for defendant based on a finding that no definite contract of exchange was made.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 116-120; Dec. Dig. § 86.]
    12. Thial (§ 317) — Misconduct of Jurors— Waiver of Objection.
    The right to object that; jurors were guilty of misconduct in engaging in social games with defendant’s wife at the hotel was waived, where plaintiff and his counsel were present and saw the games, and failed to call the matter to the court’s attention prior to filing a motion for new trial.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 751, 752; Dec. Dig. § 317.]
    Appeal from District Court, Bosque County; O. L. Lockett, Judge.
    Action by G. H. Williams against M. Phelps. From judgment for defendant, plaintiff appeals.
    Affirmed, and rehearing denied.
    James M. Robertson, ofi Meridian, and C. M. Templeton, of Ft. Worth, for appellant. •H. J. Cureton, of Meridian, and S. C. Padel-ford, of Cleburne, for appellee.

      For other oases see same topic and section NUMBER in Deo. Dig. & Am. Dig, Key-No. Series & Rep’r Indexes

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   . DUNKLIN, J.

M. Phelps, who owned a ranch in Bosque county consisting of 3,000 acres of land, upon which he resided, employed G. H. Williams, who resided in Ft. Worth, to find a buyer for the ranch, agreeing to pay Williams for his services in so doing the sum of $1,000. The contract of employment was by letter dated at Morgan', Tex., March 19, 1912, addressed to Williams at Ft. Worth, and in that contract no price was named by Phelps for his property. Pursuant to that employment, Williams instituted negotiations to effect an exchange of Phelps’ property for property in North Ft. Worth. At his insistence Phelps came to North Ft. Worth and examined property there situated belonging to Sam Rosen, with whom Williams had been negotiating, and to whom he introduced Phelps, consisting of several lots, some of which were improved with buildings. After Phelps had examined the property, a written contract was executed by him and Rosen, by the terms of which the ranch was to be exchanged for Rosen’s property, provided Rosen should elect to make the exchange after an examination of the ranch. This contract was never executed, and, in a suit by Rosen to enforce specific performance thereof, this court held that the contract was nonenforceable by reason of uncertainty in the description of the property which Rosen proposed to exchange. For that decision see Rosen v. Phelps, 160 8. W. 104.

The present suit was instituted by Williams to recover the commission of $1,000 named in the contract of his employment mentioned above. In his petition Williams alleged the execution by Phelps and Rosen of the contract above mentioned and the breach thereof by Phelps after Rosen had examined the ranch and agreed to accept it. He further alleged that his efforts to bring about the trade were the procuring cause which resulted in the contract, and that Ro-sen was ready, willing, and able to comply with the obligations imposed upon him by the terms of the contract, and offered so to do before Phelps declined to make the exchange, and that the refusal of Phelps so to do was without cause. From a judgment in favor of Phelps, Williams has appealed.

In plaintiff’s third amended petition it seems that the right of action asserted is limited to the one contention that the commission claimed had been earned by reason of the fact that plaintiff had procured the execution of the written contract of exchange, and that Rosen was ready, willing, and able to make the exchange in accordance with the terms of the contract after he had examined the ranch in accordance with the option so to do as provided in the contract. In other words, it seems that the theory upon which plaintiff’s petition was drafted was that Williams had earned his commission by procuring the execution of the written contract by Phelps and Rosen.

It is well settled that when an agent procures the execution of a written contract of purchase upon terms authorized by the principal, which is satisfactory to the principal, and which can be specifically enforced by him, then the agent has earned his commissions. Moss & Raley v. Wren, 102 Tex. 567, 113 S. W. 739, 120 S. W. 847. If the contract was not enforceable against Phelps, then it was not enforceable against Rosen, and, if unenforceable against Rosen, it did not of itself furnish a proper basis for recovery of the commissions claimed. Hagler v. Ferguson, 102 Tex. 432,118 S. W. 133,132 Am. St. Rep. 895; 3 Elliott on Contracts, § 2282. But the court tried the case upon the theory that plaintiff would have the right to recover if he induced Rosen to agree with Phelps on an exchange of properties, whether or not the agreement was clearly and properly expressed in the written contract. It is unnecessary for us .to definitely determine whether or not a trial upon that theory was warranted by the pleadings; since we have decided that the judgment should be affirmed for the reasons hereinafter stated.

We think proper to note in the outset that the written contract of employment upon which plaintiff’s suit is founded authorized a sale only of Phelps’ property. Under that contract Williams was not authorized to exchange Phelps’ property for other property. Skirvin v. O’Brien, 43 Tex. Civ. App. 1, 95 S. W. 696; 31 Cyc. 1363. In order, then, for plaintiff to recover, it was incumbent upon him, at all events, to show by parol testimony in connection with the written contract that Phelps and Rosen reached a definite agreement for the exchange of properties.

Complaint is made of the action of the court in overruling a special exception to allegations in the defendant’s answer which were, in effect, that after the execution of defendant’s written contract of employment of Williams to sell the property, and to pay him a commission of $1,000 for finding a buyer, and before the transaction already noted between plaintiff and Rosen, the plaintiff and defendant entered into a parol agreement, that in the event of an exchange of defendant’s property for other property, defendant would pay no commission for any contemplated exchange, unless such exchange should be fully consummated. This agreement did not come within the rule invoked by appellant that parol evidence will not be heard to vary or change the terms of a written agreement.

In another paragraph of defendant’s answer it was alleged that in the negotiations between the defendant and Rosen, which resulted in the execution of the written contract of exchange, the values of Ro-sen’s property were falsely represented to the defendant at sums far in excess of their real values. There was no reversible error in overruling appellant’s exception to those allegations on the ground that they were irrelevant to the material issues involved; since no such issue was submitted to the jury in the court’s charge, and no assignment is presented to the admission of any testimony to sustain such allegations.

In defendant’s answer it was alleged that the contract of exchange between Phelps and Rosen was in contravention of the statute of frauds, and therefore invalid, and also that Rosen by suit had sought a specific enforcement of the contract, and that, by reason of such invalidity of the contract, a judgment had been rendered denying him that relief. Error has been assigned to the action of the court in overruling special exceptions to those allegations upon the ground that they were immaterial and irrelevant to any issue in the case. A sufficient answer to those assignments is that the court expressly charged the jury that the written contract of exchange was nonenforceable, because of uncertainty in its terms, and no bill of exception was taken to that instruction.

Whether or not Phelps and Rosen reached any definite oral agreement for exchange of properties was a sharply controverted issue; Phelps testifying in the negative^' and plaintiff and other witnesses testifying in the affirmátive. In view of this conflict, it was permissible to introduce evidence to show the market values of the respective properties of the parties to such contract of exchange, as such values were circumstances which could be looked to for the purpose of solving the conflict. See Carver v. Power State Bank, 164 S. W. 892; Paine v. Argyle Merc. Co., 133 S. W. 895; Kocher v. Mayberry, 15 Tex. Civ. App. 342, 39 S. W. 604.

The testimony of the witnesses Tom Frazier and W. H. Abernathy shows that they were properly qualified to give opinions upon those values. If the witness H. C. Odio did not sufficiently qualify to give his opinion upon the same subject, as insisted in another assignment, the error in admitting his testimony over appellant’s objection would not be such as would require a reversal of the judgment, in view of the fact that it related to a collateral circumstance only, and in view of other testimony to the same effect as that of Odie. See rule 62a (149 S. W. x).

The execution of the written contract of employment of the plaintiff by the defendant, which was alleged in plaintiff’s petition, was not controverted by any evidence offered by defendant. Hence there was no error in excluding another letter offered by the plaintiff from Phelps to Williams to prove such employment.

Several assignments of error are presented to the charge given by the court to the jury, all of which must be overruled, for the reason that no proper bills of exception were taken thereto. We find in the record what purport to be objections to the charge which are signed by the plaintiff and are marked “Approved” by the trial judge. But they do not purport to show that -they were presented before the charge was read to the jury, nor that the objections were overruled by the trial judge, nor that the plaintiff excepted to such ruling. See Gulf, Texas & Western Ry. Co. v. Wm. Dickey (No. 8011) 171 S. W. 1097, by this court, not yet officially published; Cleburne Street Ry. Co. v. Barnes, 168 S. W. 99.

By other assignments the contention is made that the verdict of the jury is without evidence to support it, or, at all events, contrary to the great preponderance of the evidence. It is insisted that the evidence shows conclusively that, after the execution of the contract of exchange between Rosen and Phelps, Rosen went to Morgan, and, after inspecting the ranch, told Phelps that he would accept it in exchange for his (Rosen’s) property; that then, and not until then, did Phelps decline to make the exchange. Phelps testified that Rosen, after looking over the ranch, declined to take it, and that thereupon Phelps declared the trade off, and thereafter declined the further offer of Rosen to consummate the contract. In view of this testimony of Phelps, together with his further testimony, which was, in effect, that no definite agreement was ever ma.de between him and Rosen for exchange of properties, and the further testimony that the value of the ranch was greatly in excess of the value of Rosen’s property, and other circumstances not necessary to enumerate, these assignments must be overruled.

By another assignment complaint is made of the action of the court in overruling plaintiff’s motion for new trial based upon allegations of misconduct of some of the jurors during the trial of the case. The alleged misconduct consisted of the fact that defendant’s wife, a charming and attractive lady, boarded a.t the same hotel with the jurors, and during the recesses of court engaged in social games of dominoes with some of the jurors in the parlors of the hotel. If this could be considered such misconduct on the part of the jurors as to require their verdict to be set aside, the error was waived by reason of the fact, appearing from the affidavits attached to the motion, that both plaintiff and his counsel were also hoarding at the same hotel, were present and saw the alleged games in progress, and failed to call the matter to the trial court’s attention until the motion for new trial was filed.

The judgment is affirmed.

On Motion for Rehearing.

We were in error in stating that the contract of employment contemplated nothing but a sale of the property. Upon further examination we find that the letter from Phelps to Williams requesting his services and promising to pay Williams $1,000 for finding a buyer, and the acceptance of which letter by Williams constituted the contract sued upon, concluded as follows: “I will trade or will sell on a credit; interest is all I want.”

With this correction, the motion for a rehearing is overruled.


author: HUFF, C. J.

text:
    PECOS & N. T. RY. CO. v. AMARILLO ST. RY. CO. et al.
    (No. 643.)
    (Court of Civil Appeals of Texas. Amarillo.
    Dec. 19, 1914.)
    1. Action (§ 27) — Nature and Poem — Con-teact oe “Toet” — “Action Ex Delicto.”
    In the strict legal sense, a “tort” is a wrong done independent of contract, but there are wrongs committed in the nonobservance of contract duties; so that, if a transaction has its origin in a contract placing the parties in such relation that the wrong is committed in performing or attempting to perform the contract, the breach of the contract is not the gravamen of the action, but is a mere inducement, and it is the wrong outside the contract which is the gravamen of the action, and such action is an “action ex delicto,” or at common law an action for which case would lie.
    [Ed. Note. — Por other cases, see Action, Cent. Dig. §§ 160-195; Dec. Dig. § 27.

    Por other definitions, see Words and Phrases, Pirst and Second Series, Action Ex Delicto; Tort.)
    2. Pleading ( 58) — Inducement—Conteact.
    In an action ex delicto, outside the contract which induced the occasion for the wrong, the contract is a mere inducement and should be so pleaded.
    [Ed. Note. — Por other cases, see Pleading, Cent. Dig. § 123; Dec. Dig. § 58.]
    3. Action (§ 27) — Nattjee and Poem — “Action Ex Delicto” — “Action Ex Contrac-tu.”
    A cause of action arising from breach of a promise is an “action ex contractu,” and when a duty, for the breach of which an action is brought, would not be implied by law by reason of the relation of the parties and depends solely upon the fact that it has been expressly stipulated for, the remedy is in contract and not in tort; but a cause of action arising from a breach of duty growing out of the contract is in form an “action ex delicto.”
    [Ed. Note. — Por other cases, see Action, Cent. Dig. §§ 160-195; Dec. Dig. § 27.

    For other definitions, see Words and Phrases, Action Ex Contractu.)
    4.Action (§ 32) — Natube and Poem — Con-teact fob Toet.
    Under the system of pleading in Texas, distinctions between actions do not exist, but the facts alleged determine the character of the action, and the courts determine therefrom whether it is one of tort or contract.
    [Ed. Note. — Por other cases, see Action, Cent. Dig. §§ 257-261, 316; Dec. Dig. § 32.]
    5.Action (§ 27) — Nature and Poem — Con-teact eob Toet.
    A petition, alleging that defendant street railroad did not perform the obligation of its written contract to keep its roadway under plaintiff’s bridge free from inflammable material, but permitted such material to accumulate and remain in the subway, where it became ignited from some unknown cause and the fire destroyed plaintiff’s bridge to its damage, and that the destruction was not due to any failure of duty on the part of plaintiff, but was the proximate result of defendant’s failure to keep the subway free from inflammable material, stated an action for_ breach of contract; and defendant was not relieved from its contract to indemnify against damages, simply because it was not shown to be negligent in permitting such accumulation of material.
    [Ed. Note. — Por other cases, see Action, Cent. Dig. §§ 160-195; Dec. Dig. § 27.]
    6.Trial (§ 251) — Instructions—Application to Issues — Negligence—Conteact.
    In an action for breach of defendant street railroad’s contract that in consideration of the use of a subway under plaintiff’s railroad it would keep the subway free from combustible material and indemnify the railroad for damages from fire, instructions making the street railroad’s liability turn upon the question of negligence in not keeping the subway clear of such material were erroneous, and the plaintiff’s requested charge that the liability rested upon breach of contract, and if the destruction of the bridge was caused by fire originating in such material it was liable, should have been given.
    [Ed. Note. — Por other cases, see Trial, Cent. Dig. §§ 587-595; De'e. Dig. § 251.]
    7.Evidence (§ 220) — Admission—Acquiescence oe Silence.
    Where the superintendent of a railroad met representatives of a street railroad to discuss the widening of a subway under the railroad, and no mention was made of the street railroad’s contract liability for the burning of a bridge over the subway, the statement of the railroad superintendent that he supposed the bridge had been set on fire by tramps, without then stating that the railroad held the street railroad liable, under its contract, for the destruction of the bridge, was not an admission that the street railroad was not liable thereunder, since the situation of the parties and the nature of the discussion did not call upon the superintendent to assert the liability.
    [Ed. Note. — Por other cases, see Evidence, Cent.' Dig. §§ 771-785; Dec. Dig. § 220.]

      8. Evidence (§ 242) — Declarations and Disclaimed — A&ent.
    To render an agent’s disclaimer admissible against bis principal, it must have been made concerning an act within his authority and when the. act was being performed by -him, and, if made before or after such act, was not admissible.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 893-907; Dec. Dig. § 242.]
    9. Contracts (§ 349) — Action eob Breach-Evidence — Presentation oe Claim.
    In an action by a railroad company against a street railroad company for the breach of its contract to keep its subway free from inflammable substances, and to indemnify the plaintiff for any loss by fire, a letter written by the plaintiff, inclosing a bill for damages for the destruction of its bridge by fire, was inadmissible to prove the time of presentation of its claim, in the absence of any evidence showing the date when the letter was mailed or sent out by the plaintiff.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1096, 1781-1784, 1788-1798, 1809, 1811-1814, 1817, 1818; Dec. Dig. § 349.]
    10. Appeal and Error (§ 759) — Assignments op Error — Soppiciency.
    An assignment presenting in one group some 13 assignments to the court’s action in overruling that many special exceptions, with a statement referring to the record for the excep-tiQns, was improperly briefed and would not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3094; Dec. Dig. § 759.]
    11. Evidence (§ 441) — Parol—Varying Contract.
    In, an action for breach of a contract to keep a subway under plaintiff’s railroad free from inflammable material and to indemnify plaintiff for damages from fire, where the answer did not allege fraud, mistake, etc., in inducing the contract, parol testimony of prior negotiations wherein it sought to vary the terms of the contract were inadmissible under the pleadings.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1710, 1723-1763, 1765-1845, 2080-2047; Dec. Dig. § 441.] '
    Appeal from District Court, Potter County; Jas. N. Browning, Judge.
    Action by the Pecos & Northern Texas Railway Company against the Amarillo Street Railway Company and others. Judgment for defendants, and plaintiff appeals.
    Reversed.
    Terry, Cavin & Mills, of Galveston, and Madden, Trulove & Kimbrough, of Amarillo (F. M. Ryburn, of Amarillo, of counsel), for appellant. Crudgington & Works, of Amarillo, for appellees.

      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      Eor other cases see same topic ana section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HUFF, C. J.

This suit was instituted by the appellant, the Pecos & Northern Texas Railway Company, against , the Amarillo Street Railway Company, appellee. The statement of the cause of action, by appellant, and acquiesced in .by appellee, is as follows:

“This suit was instituted in the district court of Potter county, Tex., by appellant, against appellee the Amarillo Street Railway Company, to recover the value of a bridge erected for the support of its track over a subway to be used by the appellee, and that the street railway company crosses the track of appellant at Twenty-Fifth street, in the city of Amarillo, Tex.; appellant alleging that said subway was constructed and such bridge built at its own expense under a written contract entered into between it and the appellee on the 12th day of August, 1908. Said contract containing the terms and conditions under which said subway was constructed, among which was a provision that the street railway company should drain and keep passable and free from all rubbish and inflammable material such subway or underground crossing, and should indemnify and save harmless and free from loss the appellant from any damage on account of the destruction of such subway or bridge or any part thereof, which might be directly or indirectly caused or originate from inflammable material which should be allowed to accumulate in said subway by appel-lee, whether said fire should be set by trains of the appellant or by the electric wires or cars of appellee or by the public. It is further alleged in such petition that in violation of such contract appellees permitted trash, weeds, paper, and other inflammable material to accumulate in said subway, and that such trash and inflammable material so accumulated in such subway were ignited from some cause and fire thereby transmitted to the timber supporting and composing said bridge, and said bridge was as a result thereof, on or about the 19th day of April, 1910, completely destroyed by fire, to appellant’s damage in the sum of $10,000.”

It will be unnecessary at this time to set out the answer of the appellee.

The first assignment of error is to the effect that the verdict of the jury is contrary to the law and evidence, in that the evidence conclusively shows that the defendant permitted the accumulation of trash, rubbish, etc., in the subway, and that they caught fire, which was communicated to the bridge and caused its destruction.

Without discussing the evidence or setting it out, we overrule this objection, holding that the testimony is not conclusive that the fire originated in the rubbish, etc., and the fire was thereby communicated to the bridge. For that reason the assignment will be overruled; and, in this connection, we overrule appellee’s contention that the evidence is conclusive that the fire did not so originate as would render it liable, and that any error the court might have committed would be harmless for the reason that the jury could not have lawfully rendered any other verdict than they did. The evidence we do not regard as conclusive as against either the appellant or the appellee; but there are facts and circumstances for and against both, from which an inference might be drawn by the jury, either supporting the one or defeating the other. Contention on the part of both appellant and appellee in this particular will be overruled.

The second, third, and fourth assignments of error relate to the charge of the court given in this case, and the sixth assignment, to the refusal of the court to give the appellant’s specially requested charge. The court, in the third paragraph of its charge, instructed the jury as follows:

“By ‘ordinary care,’ as used in this charge, is meant the exercise of that degree of care under given circumstances which a person of ordinary prudence would exercise under the same circumstances, and a failure to exercise such ordinary care is ‘negligence’ in the sense that the term negligence is used in this charge. ‘Negligence,’ in other words, is the doing of that which an ordinarily prudent person would not do, or the failure to do that which a person of ordinary prudence would do under the same circumstances.”

The fifth paragraph is:

“Under the terms of the written contracts of March 26, 1908, and of August 12, 1908, between plaintiff and the defendant street railway company, read in evidence before you, it was the duty of the said street railway company to exercise ordinary care to keep the entire subway or underground crossing under plaintiffs bridge •free from all rubbish and inflammable material which could or might cause fire to originate and damage or destroy said bridge.”

In the sixth paragraph the court instructed the jury to bear in mind the foregoing instructions, and if they should find from the evidence the defendants “negligently allowed rubbish and inflammable material,” etc., to accumulate, and that the bridge caught fire from any cause which was communicated to the bridge from such burning material, and destroyed, etc.

The appellant requested the court, in specially requested charge No.-1, to charge the jury that under the contract sued on the liability of the parties would .be governed thereby with reference to the causeway, and instructed them what the provisions of the contract were with reference to fire, and concluded:

“Therefore, if you believe from the evidence before you that the defendant street railway failed to keep said entire subway free from all rubbish and inflammable matter as provided in said contract, and that said bridge or any part thereof was destroyed by fire directly or indirectly originating from such inflammable matter, if any, which may have been allowed to accumulate in said subway by the defendant Amarillo Street Railway Company, then you will find in favor of the plaintiff, whether said fire may have been set in such inflammable material, if any, by the train of the plaintiff company, or by the public.”

This charge the court refused.

Section 2 of article I of the contract, is as follows:

“The Amarillo Company (appellee) shall construct its railroad on the P. & N. T. Company’s right of way into and through the subway or •undergrade crossing, as herein provided, at its own cost and expense, and shall at all times during its right to use said subway or undergrade crossing, at its own cost and expense properly drain and keep passable and free from all rubbish and inflammable matter the entire subway.”

, Section 6 of article 2 is that:

“The Amarillo Company shall indemnify and save harmless and free from all loss the Pecos & Northern Texas Company against the damage or destruction of said subway or any part thereof by fire, which may be directly or indirectly caused by or originated from inflammable material which may be allowed to accumulate in said subway by the Amarillo Company, whether said fire may be set by the trains of the Pecos &_ Northern Texas Company or the electric wires of said Amarillo Company, or by the public.”

As the appellee contends in this case that the action brought by appellant is one sounding in tort or for negligence, we quote the following paragraph from the petition':

“(7) Plaintiff further says that defendant did not and has not performed the duties and obligations made incumbent upon it by the terms of said written contract, but, on the contrary, permitted trash, weeds, paper, chips, and various other inflammable and combustible material to accumulate and remain within and about the subway or underground crossing, and that on or about the 19th day of April, A. E>. 1910, such inflammable and combustible material so permitted to collect and remain within and about said subway by the defendant was ignited from some cause unknown to the plaintiff, and fire was thereby transmitted to the timbers supporting and crossing said bridge, thereby burning the whole and destroying said bridge and injuring plaintiff’s railway to plaintiff’s damage in the sum of $10,000.
“(8) That the burning and destruction of said bridge was in no wise owing to the failure of duty of plaintiff in any respect nor to any acts of negligence on its part, but was the proximate result of defendant’s failure to keep said subway or underground crossing free from inflammable matter and combustible substance.”

In testing the charge of the court given in this case, it will be necessary to inquire into the nature of the action brought; that is, whether it is ex contractu or ex delicto, and whether a breach of a contract or a suit in tort. It could not in the strict legal sense be a suit in tort; that is, “a wrong done independent of contract.” But there are wrongs which will maintain an action on the case, known to the common-law pleading, committed in the nonobservanee of duties which are but the implication of contract obligation. Wherever there is carelessness, want of reasonable skill, or the violation or disregard of duty which the law implies from the conditions or attendant circumstances, and individual injury results therefrom, an action in tort lies in favor of the party injured. If the transaction had its origin in a contract which places the parties in such relation as that in performing of attempting to perform the service promised the wrong is committed, then the breach of the contract is not the gravamen of the action. There may be no technical breach of the letter of the contract; the contract in such case is a mere inducement and should be so pleaded. It induces, causes, creates the conditions or state of things which furnishes the occasion for the wrong. It is the wrong outside the letter of the- contract which is there the gravamen of the suit. Such an action, as we understand, would be ex delicto or at the common law, an action for which case would lie. A familiar example is given by the Alabama court:

“The contract of a carpenter to repair a house, partly decayed, or otherwise defective, the implications of the contract are, that he will bring to the service reasonable skill, good faith, and diligence. If he failed to do the work, or leave it incomplete, the remedy, and the only remedy against him, is ex contractu. ■Suppose, in the attempted performance, he, by his want of skill or care, destroys, or damages, or needlessly wastes the materials furnished by the hirer; or, suppose that in making the needed repairs he did it so unskillfully or carelessly as to damage other portions of the house. This is tort, for which the contract only furnished the occasion.” Mobile Life Ins. Co. v. Randall, 74 Ala. 170.

‘‘Perhaps the best criterion is this: _ If the cause of action, stated in the declaration, arises from a breach of promise, the action is ex contractu; but if the cause of action arises from a breach of duty, growing out of the contract, it is in form, ex delicto and case.” Wilkinson v. Mosely, 18 Ala. 288; Myers v. Gilbert, 18 Ala. 467.

“Where the duty for the breach of which the action is brought would not be implied by law by reason of the relations of the parties, whether such relations arose out of a contract or not, and its existence depends solely upon the fact that it has been expressly stipulated for, the remedy is in contract, and not in tort.” Ruling Case Law, vol. 1, p. 322, § 7; Russell v. Polk County Abstract Co., 87 Iowa, 233, 54 N. W. 212, 43 Am. St. Rep. 381; Railway Co. v. Becker, 67 Ark. 1, 53 S. W. 406, 46 L. R. A. 814, 77 Am. St. Rep. 78; Tuttle v. Gilbert, 145 Mass. 169, 13 N. E. 465; Flynn v. Hatton, 43 How. Prac. (N. T.) 333.

While under our system of pleading distinctions between actions do not exist, the facts alleged control and determine the character of the action, and the courts determine therefrom whether the action is one of tort or contract, and if a contract appears to be the gravamen of the suit it will be so determined. This question frequently occurs in suits agaiust common carriers as such. See Elder v. Railway Co., 105 Tex. 628, 154 S. W. 975, for allegations in a suit for breach of the contract of carriage, in which it was determined that the suit was not for the failure to perform its legal duty, as a common carrier, but was held to be upon the contract of carriage, and was therefore a suit ex contractu, and not ex delicto, and the four years’ statutes of limitations applied in that case. In the ease of Stuart v. Western Union Tel. Co., 66 Tex. 580, 18 S. W. 351, 59 Am. St. Rep. 623, the sum paid to send a message is held to be recoverable on the contract, but mental distress occasioned by the negligence of the agent is recoverable from the wrong done. It is there said:

“If the facts stated show a breach of contract, and also that the breach is of such character as to authorize a suit as for a tort, all the damages recoverable for the thing done or committed, either in an action ex delicto or ex contrac-tu, may be recovered in the one suit.”
“The reform procedure has abolished forms of action ex contractu and ex delicto, but the principles of law governing these actions remain unchanged, and while an action of tort may be allowed to stand as an action for breach of a contract, when the complaint states facts sufficient to constitute a cause of action for such breach, the other allegations of the complaint may be treated as surplusage. The two causes of action are still entirely distinct, and there can be no recovery for a breach of contract when the complaint shows a cause of action in tort.” Ruling Case Law, vol. 1, p. 332, § 15.

And we take it if the petition shows the cause of action on contract a recovery cannot be had in tort. The pleader “must now state his facts; he must state them truly; and he must prove them as alleged to succeed.” It has been said, in action on torts founded upon express or implied contracts, the act complained of must have resulted from misfeasance or malfeasance, and that tort cannot be based upon nonfeasance alone. As illustrating, when a case may be based on tort arising out of a contract, we refer to the decision by the Massachusetts court: The city agreed to furnish water to a greenhouse, which the latter heated to keep his plants from freezing, but during sewer construction the supply pipe was negligently uncovered and the water froze, and thereby the water supply was cut off. It was held that an action for tort would lie, even though a suit on the contract would be proper. Stock v. Boston, 149 Mass. 356, 21 N. E. 871, 14 Am. St. Rep. 430; The Indiana court, in the case of Flint v. Beckett, 167 Ind. 491, 79 N. E. 503, 12 L. R. A. (N. S.) 924, held where a party undertook to erect a windmill on another building, comes into such relation to the owner as will render him liable in tort in case the work is done so negligently that the windmill falls and injures the other building.

It will be observed from an examination of the facts in these cases that there was no contract to pay the damages in case of uncovering the water pipe in the first instance; or in the second in case the windmill fell and damaged the building. The above cases cited we do not believe would fall under the rule heretofore quoted by us from Ruling Case Law, § 7, p. 332. As we understand the decisions in our own state, they are in accord with the authorities above set out. We quote from the headnote which appears to be a fair representation of the opinion of the cause of Galveston, H. & S. A. Ry. Co. v. Hennigan, 33 Tex. Civ. App. 314, 76 S. W. 452:

“(1) Where an employer fails to furnish an employe medical attendance, as he has agreed to do, the employe’s cause of action is for breach of contract, and not in tort for negligence. (2) The cause of action being breach of contract, and the pleadings and trial being in form for negligence, such error, though unassigned, requires reversal.”

In the case of Gunter v. Robinson, 112 S. W. 134, the controversy was over a contract to cultivate certain land. The party agreeing to so cultivate sought to excuse himself for not having done so on the grounds that the land was deep “hog wallowy” black land, and that it rained so that the hog wallows kept full of water and he could not for that reason cultivate it. The court said the character of the land was evidently known to the party when he entered into the contract, “and no provision seems to have been made to relieve him of the performance” on account “of excessive rains. * * * When a party voluntarily undertakes, and by contract binds himself, to do an act or thing without qualification, ahd the performance thereof becomes impossible by some contingency which should have been anticipated and provided against in the contract, and such provision is not made, the nonperformance will not be excused.” The court and judge rendering the above opinion also rendered the opinion in the case of Houston Ice Co., etc., v. Keenan, 99 Tex. 79, 88 S. W. 197. That case was a suit for the rent on a lease contract of a house for saloon purposes. The lessee sought to avoid the contract on the ground that after its execution local option had gone into effect. It was held that the subsequent adoption of local option did not absolve the lessee, and the court applied the maxim, “As a party binds himself, so shall he be bound.” This holding was not only approved by the Supreme Court, but that court adopted the opinion and directed its publication. The same proposition is involved in the case of Bastrop, etc., v. Cochran, 138 S. W. 1188, where it is held the destruction of work by flood before its delivery by the builder to the owner does not excuse nonperformance of the contract. To the same effect are the following eases of Bartlett v. Bisbey, 27 Tex. Civ. App. 401, 66 S. W. 70; Burke v. Purifoy, 21 Tex. Civ. App. 202, 50 S. W. 1089-1091.

the parties who so contract cannot be released from their obligations to perform the contract on account of agencies over which they have no control, we think one who contracts that if he is given an easement over another’s property he will see to it that no trash and combustible material shall ac-acand • will keep the premises free therefrom, so that if fire is caused thereby or communicated to the property he will indem-indemagainst the damages, ought not to be re-refrom his contract simply because neg-negis not shown against him in permit-permitsuch accumulation. It was expressly held that a charge to a jury would be im-imwhich was to the effect that the de-dewas only required to use ordinary care to perform the contract. This was a suit brought upon a breach of a contract to thresh rice. Kerr v. Blair, 105 S. W. 5S1.

584. is urged by the appellee in this case that the petition of appellant alleges negligence, and therefore the charge of the court was proper.

In the case of Russell v. Polk County Abstract Co., supra, the court says:

“The duties arising upon contracts are, of course, legal duties, within the most comprehensive meaning of the term; but the sanction of the law making them so is invoked by the contract, and hence, in an important and practical sense, we regard and express the obligations and duties thus arising between parties as contractual, ■ and in that way distinguish them from other legal duties or obligations. * * * In the case at bar the defendant, independent of the contract, owed no duty to the plaintiff. The neglected duty was one alone enjoined by contract. The failure to perform by the defendant was a failure to discharge its agreement, which is solely a breach of contract. No refinement of reasoning can, or should, avoid the conclusion. The fact that the act is alleged as negligently done does not change the situation. It is an allegation only as to the manner of making the breach. The liability of the defendant company in no way depends on the fact of negligence. The allegations of the petition show an absolute undertaking ‘to furnish a full, complete and correct abstract to the plaintiff, correctly showing the liens of mortgages, judgments and otherwise.’ The demurrer admits such an undertaking, and the allegation of neglience cannot have the effect to change the action from one on contract to one for tort. If A. should engage to deliver to B. a quantity of wheat at a certain time and place, and he failed to do so, he would be liable upon his undertaking, and, in an action for damages because of the failure, a mere allegation that he negligently failed to perform would not affect the character of the action. The liability in either case attaches without the negligence.”

In this case we interpret the pleading of the plaintiff to be one upon a suit for the breach of the contract, and in permitting the combustible material to accumulate from which fire was communicated to the bridge, and upon the agreement of the appellee to indemnify appellant against loss or damage so occasioned, the question of negligence is not involved in the consideration of this case. The court, by his charge, made the liability of the appellees to turn upon the question of the appellees’ negligence to keep clear and prevent the accumulation of the rubbish. In this we think the court was in error. The jury may have found as a fact that the rubbish accumulated and that the fire was communicated to the bridge therefrom, yet have found that the appellee was not negligent in so permitting the trash to accumulate. We are inclined to believe that the special charge requested by the appellant was a proper charge in this case. The assignments of appellant as to the charge of the court and the refusal to give this specially requested charge will be sustained.

The eighth assignment complains at the action of the court in permitting J. W. Crudgington to testify:

“He (Starkweather) told us there about the burn, and they supposed tramps had set the subway afire. At any rate, he made no intimation of any character whatever that we were in any way responsible for the fire. He said he had been to the fire. He made no claim against our company at all in that connection.”

As we gather from the bill, the objections to the introduction of this testimony were that it is immaterial, irrelevant, and hearsay testimony, and the fact that his failure to say anything is not binding on the company (appellant), and there are no pleadings to support it. This is the statement made in the brief. From the statement so made, we cannot determine whether the court was in error or not; but, as the case will be reversed, perhaps we should give our views on the question. Upon reading the bill as taken, we understand, the court did not admit the statement “that he supposed tramps had set the subway on fire”; and one of the counsel for appellee stated, “We do not offer his supposition.” The witness’ supposition was not admissible, but this was not offered or admitted by the court, as we gather from the bill. The record in this case shows that Starkweather was superintendent of the appellant company, presumably with the right to look after the subway and bridge. It appears that Orudgington and witness Nobles, acting for appellee, went to the general offices of appellant to talk over, as we gather from the testimony, widening the subway, for the reason that there was some complaint by the public that the roadway for a public road, which also passed under the subway, was too narrow. The two contracts evidence the fact that the public road was to be so changed as to pass through the subway instead of over the railroad of appellant. While discussing the project of widening the roadway under the viaduct, the conversation objected to was had. Under the contract, the question of appellees’ liability or nonliability from the fire does not appear to have been mentioned between the parties in that conversation. The suggestion made was a theory as to how the fire originated, supposedly by tramps, which, as we gather from the record, was not admitted by the court or really offered by appellee. The evidence that no mention was made of appellees’ liability was then mentioned, is the only question to be determined. Starkweather in failing to then state that appellant held appellee on the terms of the contract for the burning of the bridge, we do not think can be taken as an admission that appellee was not liable thereunder. This was not the matter under discussion. The purpose of the conference was to discuss the question of widening the public roadway. Life Isurance Co. v. Calvert, 101 Tex. 128, 105 S. W. 320. Unless a party is called upon to speak by the conversation or by the circumstances then surrounding him, his silence is not an admission. 16 Cyc. 956(7).

“There is no ground for presuming acquiescence in such statements unless they are of such character as would naturally call for a response and unless the party sought to be charged was in such situation that he would probably have replied to them.” Jones on Evidence, § 289.

The situation of the parties on this occasion did not call upon Starkweather to assert liability on the part of appellee under the contract. The evidence was immaterial and irrelevant and in its nature hearsay. Even though Starkweather was the superintendent of the road, it does not follow that he had the’ right to make the claim or to assert liability. It is not shown that it was his duty as the agent of the road to call for or demand payment or in any way to adjust the claim. The fact that he may have had the right to widen the causeway does not imply authority to adjust claims for damages sustained thereto.

“To render the disclaimer of an agent admissible against the principal, such disclaimer must have been made concerning an act within the scope of authority of the agent and at the time the act was being performed by the agent. If the declaration be made before or after the act was done, it is no part of the res gestae, and therefore not admissible.” Waggoner v. Snody, 98 Tex. 512, 85 S. W. 1134; Railway Oo. v. Robinson, 73 Tex. 277, 11 S. W. 327; Railway Oo. v. O’Brien, 119 U. S. 99, 7 Sup. Ot. 118, 30 L. Ed. 299; Railway Oo. v. Culver, 168 S. W. 514, 517.

The ninth assignment complains of the action of the court in not permitting appellant to read in evidence a certain letter dated June 7, 1910, with an attached bill for $10,037.91, dated May 27, 1910, for damages in the destruction of the bridge. Ap-pellee objected to the introduction of this testimony because immaterial and irrelevant. Testimony was offered by the appellee that there was no claim presented to it until some time during the following summer. H. A. Nobles, an officer of appellee, testified he received the letter and claim inclosed therein January 7, 1911, after the fire. There appears to be no testimony when this letter and bill were mailed or sent out by appellant to appellee. It was not admissible, of course, as proof of the claim, and was only admissible in contradiction of the witnesses of appellee. We think no error is shown, as there is nothing showing that the claim was made prior to its reception from the post office by Nobles. To have shown it admissible for the purpose of contradicting the witnesses, we think, it should further be shown that the bill was presented at an earlier date. At any rate, there is no error in the ruling of the court in this particular.

The tenth assignment- is improperly briefed. There are some 13 assignments presented in one group, all to the action of the court in overruling that many special exceptions. In the statement we are referred to the record to find out what the exceptions were to the answer of the appellees. The eleventh assignment presents error upon the action of the court in permitting J. W. Orudgington and H. A. Nobles to testify to the parol negotiations had between appellant and appellee before the written contract sued on in this case was executed. We will state inasmuch as the case will be reversed that the answer of appellee does not allege fraud, mistake, or the like inducing the appellees to sign and make the contract set up, and for that reason the pleading is bad. The parol testimony of the prior negotiations was inadmissible wherein it sought to vary the terms of the contract and should have been excluded. The trial court, however, ignored this testimony in submitting the case to the jury. We think, nevertheless, it was error in admitting it in the state of the pleadings in this ease. We do not decide whether the preliminary written contract dated March 26, 1908, was admissible. The briefs are not in such condition as to present the question so we can fully determine whether this part of the plea was excepted to or whether the introduction of the preliminary contract was properly objected to. If we gather correctly, there is no serious objection urged to the admission of this contract. At this time we see no reason why it was not admissible, but do not wish to make a ruling thereon in the absence of specific objections being urged to its admission. What we have said above will dispose of the twelfth assignment.

The judgment of the trial court will be reversed.