text:
    WELLS FARGO & CO. EXPRESS v. KEELER.
    (No. 8052.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Dec. 12, 1914.
    Rehearing Denied Jan. 16, 1915.)
    1. Justices of the Peace &wkey;>174r — Appeal —Pleading.
    Plaintiffs’ pleading in an action, originating in a justice court, for injury to an automobile, stating it was damaged in a certain sum, “as follows: * * *; and hire of horse and wagon during repair of car $19.50,” is sufficient to justify evidence of such item, especially where the objection to the evidence is not on the ground of insufficient pleading.
    [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 065-693; Dec. Dig. <&wkey;174.]
    2. Damages <&wkey;39— Injuey to Property — Automobiles.
    If, to put his automobile in as good condition as before its injury, plaintiff must buy pneumatic tires, because hard rubber tires, with which it had been fitted, are no longer made, he may recover from defendant therefor; though if, with pneumatic tires, the machine be of greater value than before, deduction for the enhancement in value should be allowed.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 260-284; Dec. Dig. &wkey;39.]
    3. Appeal and Error <&wkey;909 — Presumption in Favor of Judgment.
    In favor of the judgment, the record being silent thereon, it will be presumed that plaintiff’s automobile, fitted with pneumatic tires, was not of greater value than when fitted with hard rubber tires, as before its injury by defendant.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3675; Dec. Dig. &wkey;>909.]
    4. Trial <&wkey;274 — Instructions — Necessity of Request.
    A party objecting to a charge given must submit a proper special charge.
    [Ed. Note. — For other eases, see Trial, Cent. Dig. § 687; Dec. Dig. <&wkey;>274.]
    5. Municipal Corporations <&wkey;705 — Injury by Driven Horse — Liability.
    Merely because conduct of defendant’s horse, which, while being driven by him, backed into plaintiff’s automobile", was the result of its inherent nature, defendant was not relieved of liability.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 1515-1517; Dec. Dig. &wkey;3705.]
    6. Municipal Corporations &wkey;>706 — Injury by Driven Horse — Contributory Negligence.
    Evidence in an action for injury to plaintiff’s automobile, while standing at a place of business, by defendant’s team running into, held not to raise the issue of contributory negligence.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 1518; Dec. Dig. <&wkey;> 706.]
    7. Negligence <&wkey;141 — Instructions.
    A requested charge that if, from the evidence, the jury believe that plaintiff was guilty of any negligence contributing proximately to the accident, he cannot recover, is improper, as not pointing out the respect in which it is claimed plaintiff was guilty of contributory negligence, but leaving the jury to speculation.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 382-399; Dec. Dig. &wkey;141.]
    Appeal from Cooke County Court; R. V. Bell, Judge.
    Action by D. D. Keeler against the Wells Fargo & Co. Express. From a judgment for plaintiff, on appeal from a justice, defendant appeals.
    Affirmed.
    Stuart, Bell & Moore, of Gainesville, for appellant. J. T. Adams, of Gainesville, for appellee.
   BUCK, J.

This was a suit brought by D. D. Keeler, appellee, in the justice court of Cooke county, Tex., to recover of appellant the sum of $143.45i as damages alleged to have been caused to appellee’s automobile on May 20, 1913, on account of appellant’s negligence. Appellee alleged, in substance, in the justice’s court, that on said date, in the negligent operation of its express wagon, appellant ran into and against the delivery automobile owned by the appellee, breaking and damaging the same in said amount, for which he sought judgment. From a judgment in favor of appellee for the amount sued for in the justice court, an appeal was perfected to the county court.

Appellee filed an amended cause of action in the county court, setting up, in addition to the general ground of negligence relied on in the justice court, the further ground that the animal driven by the appellant was a vicious, unruly, and unsafe animal, and alleged items of damage as follows: One set of automobile tires $86; repairing top, side, and body of car $36.95; hire of horse and wagon during repair of car $19.50. In the county court appellant answered by general and special exceptions, by general and specific denial, and further pleaded that the conduct of the horse was due to its inherent nature, and that the items of damages claimed were grossly excessive, and that appellee was guilty of contributory negligence in placing said automobile in a place of danger and permitting it to remain there, it being the usual, and customary place where appellant loaded goods, appellant being at said place by the invitation of appel-lee; that the damage was the result of an accident over which appellant had no control, and that it used ordinary care to prevent the injury; that the item of $86 was in the nature of special damages of which appellant had no notice, and that the appellee had invited the appellant to come to the place where the accident occurred with its wagon to receive a consignment of goods, as was its custom, and that appellee was well acquainted with the ground and the situation, and that he was negligent in, not providing a reasonably safe place in which tbe goods might be received, and in leaving the automobile standing in a place of danger.

The cause was tried before a jury in the county court, and resulted in a verdict and judgment in favor of appellee in the sum of $143.45, and from this judgment appellant has perfected its appeal to this court.

In appellant’s first assignment of error it complains that:

“The court erred in permitting the plaintiff, D. D. Keeler, to testify as to the cost of the hire of a buggy and horse during the time the automobile was being repaired.”

This defendant objected to said evidence as immaterial, incompetent, and irrelevant, and not a proper element of damages, as shown by defendant’s bill of exceptions No. 2. In the seventh assignment of error appellant complains of the failure of the court in not sustaining its motion for a new trial and the twenty-fifth ground thereof, which was as follows:

“The court erred in refusing the sixth special instruction requested by defendant, reading as follows: ‘You are instructed that the plaintiff cannot recover for the money paid for the horse and buggy hire while said automobile was being repaired, if any.’ ”

And in the twelfth assignment of error the appellant complains that: ,

“The court erred in the sixth paragraph of his charge to the jury, reading as follows: ‘If you find from the evidence .that the plaintiff is entitled to recover under the foregoing instructions, then you are further instructed that, if you find from the evidence that the plaintiff was compelled to hire a horse and wagon to carry on his business during the time his said automobile was being repaired then you will find in favor of the plaintiff for such sum also as he is (was) compelled to pay out for such horse during the time just mentioned, in addition to the sum expended, or to be expended, by him in repairing his said automobile? ”

These three assignments we will consider together.

Appellant’s objection to the evidence with reference to the hire of a horse and buggy by appellee during the time his automobile was undergoing repairs, and to the failure of the court to give its special charge requested with reference to said item of damages, and the action of the court in giving the charge submitted to the jury on the ground that plaintiff, in the court below, was not entitled to recover damages for the hire of said horse and buggy, and that said item of damages did not constitute the true and legal measure of damages, and that therefore any evidence with reference thereto was immaterial and irrelevant. We think that undoubtedly the true measure of damages to which appellee was entitled, if at all, was the difference in the reasonable market value of the automobile just before and just after the injury complained of, and that under proper pleading he would have been entitled to recover the further sum, to wit, the reasonable value for the use of said automobile during the time he was necessarily deprived thereof while undergoing the repairs. To shed light upon the tenability of these three assignments and the discussion by this court with reference thereto, it might be well to set out in full the plaintiff’s pleading in the county court, to wit:

“Plaintiff says that on May 20, 1913, the defendant, its agents, servants, and employes, in the negligent operation of its express and delivery wagon, in the city of Gainesville, negligently ran into, against and over the delivery automobile owned and belonging to plaintiff, breaking, crushing, and demolishing the said automobile; that, in addition to the negligence as stated, the horse defendant used and caused to be driven to its said delivery wagon was a vicious, unruly, and unsafe animal; that, because of plamtiff’s automobile having been run over and against as aforesaid, the same was injured and damaged in the sum of $193.45 as follows: One set of automobile tires $86; repairing top, seat, and body of car $36.95; and hire of horse and wagon during repair of ear $19.50; total, $193.-45.”

This amount is evidently an error in the transcript, and should be $142.45. In adding up said items in the complaint filed in the justice court, the total was made $143.45; thus making an error in the justice court of $1 and in the county court of $51; but we will discuss the assignments without reference to said error in addition, in that no error is assigned by reason of said mistakes in calculation. The writer of this opinion is inclined to the view that, inasmuch as the measure of damages would be the difference between the reasonable market value of the automobile immediately before and immediately after the injury complained of, as held by the cases cited by appellant— to wit, Cooper v. Knight, 147 S. W. 349; Hughes v. City, 12 Tex. Civ. App. 178, 33 S. W. 607; Railway Co. v. Levy, 45 Tex. Civ. App. 373, 100 S. W. 195—with the possible addition of the reasonable value of the use of the automobile during the time necessarily required for its repair, and that plaintiff, having elected to file and rely on written pleadings in both the justice and county courts, is restricted and bound thereby, and, having failed to plead properly this item of damages, cannot recover therefor, and that any evidence with reference thereto is inadmissible, and that a remittitur should be required, as a condition of affirmance, of $19.50, the alleged cost of the use of horse and buggy for said time. Railway Co. v. Railway Co., 57 Tex. Civ. App. 488, 122 S. W. 972. But the majority of the court hold that, inasmuch as the same particularity of pleading is not required in cases originating in the justice court as would be in cases originating in the county or district courts, the pleadings of plaintiff are sufficient to apprise defendant of the nature of plaintiff’s claim as to this item of damages, and to justify the admission of the evidence complained of by appellant (Rector v. Orange Rice Mill Co., 100 Tex. 591, 102 S. W. 402; Lee v. McInnis, 128 S. W. 160; Ry. v. Scott, 156 S. W. 294), and that especially should these assignments be overruled in view of the fact that appellant did not predicate his objections in the trial court upon the ground that there were insufficient pleadings to sustain the recovery for such item of damages. In deference to the opinion of my Brethren, I concur in such disposition, and said three assignments are hereby overruled.

In the second assignment the appellant complains of the action of the court in not sustaining defendant’s motion for new trial and the fourth ground thereof, which, in substance, was that the court erred in permitting plaintiff to prove the cost of pneumatic tires, because, as stated, the undisputed evidence showed that the tires on the automobile at the time of the injury were rubber tires, and therefore that the testimony as to the cost of pneumatic tires was immaterial and irrelevant, and not a proper element of damages. In the third assignment the same question is raised in a different form, and also in the fifth, sixth, and thirteenth. The evidence shows that at the time of the injury the automobile of appel-lee was fitted with solid rubber tires which cost, when new, $50; that such tires were no longer manufactured, and that, in order to refit said automobile with tires, it was necessary to purchase pneumatic tires, which cost, when new, $96. Appellee secured a credit on such increased cost of $10 for his solid rubber tires, thus necessitating an outlay of $86, which he alleged as an item of damages. Appellant claims that this is in the nature of special damages, of. which it had no- notice, and that it ought not to be chargeable for such increased cost, but, in any event, only for the cost price of solid rubber tires, less depreciation at the time of the injury on account of wear and tear. We do not believe this contention is sound. If the appellant was liable for the injury complained of, appellee was entitled to have his automobile put in as good condition as it was before the injury, and if, in order to do this, it was necessary to purchase pneumatic tires, he would be entitled to do so, and to recover from appellant therefor. If the automobile, fitted with pneumatic tires, was of greater value than it was at the time of the accident, fitted with solid rubber tires, then appellee would be entitled to recover the reasonable cost of such pneumatic tires, less the enhancement in value, if any, of the automobile by reason of its having pneumatic tires instead of solid rubber tires. But the record is silent as to whether the car was more valuable with the pneumatic than with rubber tires, and, as every reasonable intendment must be presumed in favor of the judgment, we cannot conclude that appellant was injured, and therefore overrule the assignments mentioned.

In its fourth assignment of error appellant complains of the action of the court in not sustaining its motion for new trial and the fifth ground thereof, which is as follows:

“The court erred in the third paragraph of Ms charge to the jury, reading as follows: ‘If you find from the evidence that the horse used by the defendant and worked to the express delivery wagon at the time of the alleged damage was not a safe and suitable animal to be used for such purposes, or that the habits of such animal made it unsafe to be used for such purposes, and if you shall further find that the use of said horse at the time and under the circumstances was negligence on the part of the defendant, or its servants and employés, then you will find for the plaintiff, although you should further find that the injury to plaintiff’s automobile was caused by the action of said horse alone.’ ”

Said assignment is submitted as a proposition, and, as a proposition, is subject to the objection of being too general, and not specifically pointing out the error or vice complained of; but, if we should consider the same, we believe the assignment should be overruled. If appellant objected to said charge, it was its duty to submit to the court a proper special charge, and wo hold that the special charge submitted by appellant, to wit:

“You are instructed that, if you believe from the evidence that the acts and conduct of the horse being driven by the defendant at the time of the injury was the result of the inherent nature of the horse, and that as a result the automobile was damaged, the plaintiff cannot recover, and you will find for the defendant”

—was not a proper charge, and did not submit the law with reference to such issue. It may be the inherent nature of a bulldog to run out and attack any person passing along the road in front of his owner’s house. Can it then be said that because such result is due to the inherent nature of the dog that his master, who knows his nature and has allowed him to run loose, is not, because thereof, responsible therefor? We therefore overrule appellant’s fourth, and likewise the eighth, assignment, which involves the same principle.

In its ninth, tenth, and eleventh assignments appellant complains of the action of the court in overruling its motion for a new trial, and the twelfth ground thereof, in which it alleges error on the part of the trial court in its failure to submit the issue of contributory negligence on the part of the appellee and the failure to give the appellant’s requested instruction. We do not believe that the issue of contributory negligence was raised by the evidence. The testimony of Mr. Anderson and of the plaintiff, Mr. Keeler, shows that the automobile injured was at the time of the injury standing at the west end of a platform, headed south, and backed up against the wall. It was in full view of the driver of appellant’s wagon, and between the east side of said automobile and the west side of a wagon owned by the American Express Company, which was at appellee’s place of business for the purpose of being loaded, there was a space about 15 to 18 feet, and into this space the driver of appellant’s wagon attempted to back Ms wagon; that there was no other obstruction there except the automobile and the American Express Company’s wagon. Mr. Anderson testified in part as follows:

“Our wagon and the American Express wagon were the only obstructions there. The first thing I noticed at that time was when the Fargo wagon approached from the west and pulled in a kind of a circle in order to back in. When he pulled in this circle and began to cut the wagon around the horse was facing .southwest. The hind wheel at this time was in a southwest direction and the horse was in a southeast direction. When he got the horse around the hind wheel was in a kind of northwest direction. If he had continued in the northwest direction, I do not believe he would have struck the auto. At this, though, he pulled over still further and cut the wagon, in order to back straight down, and when he pulled over, his horse made a lunge to fight the American Express Company’s horse. As he did this, the Fargo driver tried to check his horse and keep him from fighting the other horse. Then the Fargo horse reared up, and then reared back and ran the wagon back into the car, striking it on the left-hand side. The boy tried to stop him before the wagon struck the car, but the horse made a forward lunge and repeated his action. In all he struck the car about four times before he got him under control.”

There is nothing in this testimony, or in the other testimony contained in the record, so far as we are able to determine, that tends to raise the issue of contributory negligence. With reference to the nature of the horse driven by appellant’s driver, the latter, Mr. Block, testified as follows:

“I will be 20 years old in March. The wagon struck the car twice I know of. I could not say for sure about three times. Yes; it is possible to stop him without a whip, but you need something to help you. At this time' I got over on the dashboard and hit him with the lines. The main cause of this injury to the machine wás because he was fighting with the American (Express Company’s) horse I reckon. That was what started it. Yes, he will play once in a while, and he has done this same way with other horses lots of times. Sometimes he will take a crazy notion and you can hardly stop him then.”

But, even if it could be reasonably contended that the issue of contributory negligence was raised by the evidence, appellant is not in a position to complain that said issue was not submitted because the special charge requested by it did not properly submit said issue, it being as follows:

“You are instructed that, if you believe from the evidence that plaintiff or his agents and servants were guilty of any negligence which contributed to proximately cause the injury and damage to said automobile, plaintiff cannot recover, and you will find for the defendant.”

This is not a proper charge, in that it leaves the jury to roam over the wide domain of speculation in order to find some possible contributory negligence on the part of the plaintiff, and does not specifically point out the respect in which it is claimed the plaintiff was guilty of negligence proximately causing, or contributing to cause, the injury and damage complained of.

Finding no merit in the other assignments of error, they are overruled, and the judgment of the trial court affirmed.
      ©=oFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: DUNKLIN, J.

license: Public Domain

text:
    FT. WORTH & R. G. RY. CO. v. McMURRAY.
    (No. 8061.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Dec. 12, 1914.
    Rehearing Denied Jan. 16, 1915.)
    1. TRIAL <&wkey;>139 — PROVINCE OF COURT AND Juey.
    While the credibility of testimony is for the jury, the question whether there is sufficient testimony to go to the jury in the first case is for the court.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 332, 333, 338-341, 365; Dec. Dig. &wkey; 139.]
    2. Death c&wkey;76 — Evidence — Sufficiency —Cause of Death.
    Evidence held insufficient to show that the death of plaintiff’s husband was caused, by germs or noxious odors thrown off from a pool of noisome water and refuse maintained by the defendant railway company.
    [Ed. Note. — For other cases, see Death, Cent. Dig. § 94; Dec. Dig. <S=c>76.]
    3. Evidence &wkey;>570 — Opinion Evidence — Effect.
    The jury is not in all cases bound by. the opinion testimony of experts.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2395;, Dec. Dig. <i&wkey;570.]
    Error from District Court, Erath County; W. J. Oxford, Judge.
    Action by Mrs. Nellie McMurray against the Fort Worth & Rio Grande Railway Company. There was a judgment for plaintiff, and defendant brings error.
    Reversed and rendered.
    Marshall Ferguson, of Stephenville, for plaintiff in error. Chandler & Pannill, of Stephenville, and R. F. Milam, of Ft. Worth, for defendant in error.
   DUNKLIN, J.

In the town of Dublin, the roadbed of the Ft. Worth & Rio Grande Railway was so constructed as to leave a ditch at the outer edge of the right of way and near the railway station, into which ditch water drained from a leaky water tank maintained by the company, and from land contiguous to the right of way. For lack of sufficient outlet, the water accumulating in the ditch formed a pool, estimated by different witnesses to be from 1 foot to 5 or 6 feet in width, from 3 feet to 60 feet in length and a few inches in depth; the size of the pool varying with the rainfall, but never going entirely dry. The railway company also maintained a toilet upon its right of way within a few feet of the pool, the refuse from which was washed into the pool. Water accumulating in the pool, under the circumstances recited, became stagnant and especially offensive by reason of the drainage from the toilet and mosquitoes in great numbers bred therein, to the annoyance of citizens living in that immediate vicinity. A. J. McMurray with his family resided on a lot contiguous to the pool and his dwelling was situated at a distance therefrom, estimated by different witnesses to be from 30 feet to 60 feet. During the first portion of February, 1912, Mr. McMurray became ill, and his illness continued until his death, which occurred April 30, 1912. This suit was instituted by his widow and children against the railway company for damages sustained by them by reason of his death which plaintiffs alleged was caused by the negligence of defendant in so constructing its roadbed as to cause the formation of said ditch;' in permitting water to escape from its water tank and accumulate in the ditch; and in maintaining the toilet at the place noted. Upon the cause of action so alleged, plaintiffs recovered a judgment for $3,500, from which the defendant has prosecuted this writ of error.

Several physicians testified upon the trial, including the family physician, who attended the deceased from the inception of his illness up to about two weeks prior to his death, at which time he was carried from his home in Dublin to a hospital in Ft. Worth, where a surgical operation was performed upon him shortly before his death. That operation disclosed, beyond controversy, that the deceased was afflicted with abscess of che liver, by reason of which a great quantity of pus had accumulated around the liver and in the plural cavity of one side of the body; and the physicians testifying all agreed that the immediate cause of death was abscess of liver so discovered.

Dr. E. D. Winters, witness for plaintiff, the physician who first treated the deceased, testified:

“I am a physician. I have been practicing medicine about 18 or 19 years. I live at Dublin, and was acquainted with A. J. McMurray in his lifetime. I attended him in his last sickness. During his last sickness he lived near the Frisco, Depot, east of the depot; I guess 40 or 50 feet from the depot. X think it was the latter part of 1912 that I was called to see Mr. McMur-ray. I guess it must have been somewhere between 8 and 10 weeks that I attended him, probably about 10 weeks. When he was first taken, I made one trip and didn’t see him any more for a few days, and from that time on I saw him usually once a day. When I first visited him, I found him suffering from la grippe. Mr. Mc-Murray -was a stout and robust man. I suppose he would have weighed 200 pounds, heavy set, chunky fellow. I considered him to be a real sick man the first time I visited him. He was complaining of his bones and muscles aching, and he had a severe headache. Ilis tongue was coated. His skin at that time looked reasonably well. I found no other symptoms except la grippe at that time. In about a week or ten days after that time, I made a blood test and found he had some malaria in his blood. By blood test, X mean I got a specimen of the blood and put it under the microscope and found he had malaria in his blood. X found what you would term malaria germs. The malaria symptoms increased. After I discovered that he had malaria, I went there from once to twice a day until he left there to go to Ft. Worth. I suppose three or four weeks from the time I made that test. I did not test him for typhoid. He had fever up to about the third week, and was then clear of fever about the third week; he was then clear of fever for about a week, and then his fever returned. His fever at first ran very high, as high as 104. He got to having chills; had two or three chills. His fever would rise,, and after a few hours would go down, but not entirely down. The second chill he had was when I made the blood test. I was present when he. had a chill. I thought that chill was due to malaria in the blood. His temperature went below normal after the second, or probably the third, chill, until finally there was a period when he didn’t have any fever. After Mr. McMurray was clear of fever a few days, he began to complain of a pain in his right side, and his skin began to get yellow. His skin getting yellow might be an evidence of several things, but my opinion was that he was possibly having a formation of an abscess in the liver, and the discoloration was due to the locking up of the bile in the liver. This gradually developed until he had an abscess of the liver, which finally killed him. It is possible, I believe, for malaria to cause abscess of the liver, but is not given. I don’t know in what way it is possible. An abscess of the liver can be caused by traumatism, a lick, or bruise over the liver. I had no evidence of that in this case. A man might by swallowing a fish bone or a pin cause abscess of the liver. I have nothing like that in this case. I inquired about that. We have different germs that might affect the liver or block the duct. My books teach that it is possible for malaria to produce abscess, but does not explain how it is done. This case was a chronic case. * * * We sometimes find the liver large when we have malarial poison, but don’t know how it does that. The liver is the separator of the poison from the impure blood. When a crop of malaria germs matures, they die, and it is the remains of the dead germs that cause the fever. This malarial poison goes through the blood, and, of coui'se, the blood going through the liver carries the poison through the liver. * * * The malaria had been distributed over Dublin in the fall. It was no worse in the neighborhood of this pool than anywhere else in Dublin that I know of. I was a practicing physician in Dublin at that time. There were no more cases in Dublin, outside of McMurray’s case, in that neighborhood that I can recall. .There were a number of cases in the fall and summer before, in other places in Dublin. And a mosquito in the fall or summer might have bitten some child or other person that had malaria and then bitten McMurray, and he could have taken it from that, and it could not be told where the mosquito came from. He might have come out of a pool where the child had malaria, or he might have come out of Restless creek, or he might have come out of the cannas in the child’s yard in Dublin. In the flower beds in our yards, mosquitoes will breed and hatch. In our honeysuckle vines they will congregate and hatch, and in our cisterns. * * * When a crop of malaria germs matures, they die, and it is the remains of the dead germs that cause the fever. The dead germ finds lodgment in the blood, and the poison that is given off from these dead germs causes the fever. The liver acts as a separator of these poisons and produces bile, which is a natural secretion, and that works as a machine and keeps up perfect action. This malarial poison goes through the blood, and, of course, the blood going through the liver carries the poison through the liver; but it is not retained in the liver any more than in any other organ. * * * Those dead germs are called ‘malarial plasmodi-um.’ That is in a fellow’s system — put into him like he is vaccinated. He may carry that malarial plasmodium in his system for years before it breaks out in a chill. McMurray may have had that malarial plasmodium in his system for a long period of time before it broke out in a chill.!’

Dr. R. A. Miller, witness for defendant and who assisted Dr. Winters in treating deceased, testified:

“I do not think abscess of the liver is a symptom of malaria. * * * I didn’t say that malaria causes enlargement of the liver. I said I found McMurray with enlargement of the liver. I don’t think malaria could produce that. The enlargement of the liver evidently produced abscess on the liver. An abscess is a part of the enlargement of the liver. X don’t say that the enlargement was produced by malaria; I don’t think that it did. * * * McMurray had symptons, but not typhoid fever. A person could perhaps be inoculated with the germ by flies, but not by mosquitoes. * * * Sometimes I give a man something to act on his liver when treating him for malaria. I presume the poison would affect the liver the same as any part of the system in gorging it. Liver and gall bladder troubles are associated with malaria. In McMur-ray’s case I found an enlargement of the liver and gall bladder.”

Dr. R. O. Braswell, who did not attend the deceased, but who was called as an expert, basing his opinions upon the history of the case as related to him, testified as follows:

“There is a question as to whether there were other complications. In the absence of the Weedall test, I would be in doubt as to the typhoid complication. It would appear to me, though, that possibly there was a typhoid complication with the malaria at the beginning. That as a result of this complication .the formation of the abscess on the liver was a secondary complication. Malaria affects the whole system. Malarial plasmodium reaches the liver same as other structures. It is a blood inoculation, and the blood is thrown back on the liver to be renewed. It is the function of the liver to re-form the worn corpuscles. On failure of the liver to perform that function, we would have engorgement of the liver, I think¡ with more or less inflammation. Abscess is the breaking down produced by inflammation — invasion of the pyro-genic bacteria. It is true, the whole system is filled with bacteria. Pus-producing bacteria must have a soil for development. Eliminating all the best-known causes of abscess of the liver, eliminating all those which the history does not disclose to exist, I would say that malarial invasion would weaken the structures of the liver and produce a soil proper for the development of the pyro-genic bacteria which produced the abscess. It has been my observation that a substantial majority o-f the people who have chronic malaria have enlarged livers. As to whether the foul odors arising from this ditch would cause infection of any kind in the human system, that atmosphere from that ditch is loaded with bacteria, is unsanitary to say the least of it, but the breathing of odors from decaying substances goes to the lungs, comes in contact with the blood, and it would be a rather far-fetched theory that would allow contaminated air to come into contact with the blood and not leave poison in it. All unsanitary surroundings are unhealthy, that it weakens a man’s vitality in such ways that he would be more susceptible to the invasion of any bacteria or any disease. I think it is a pretty veil established fact that a healthy man doers not take anything, although exposed to it: but, if we are unhealthy and have some weak condition and then exposed, we do take on the infection or contagious diseases mucn- more readily than if we were in good health. I think the surrounding conditions of this hole of water is calculated to lower a man’s vitality. If a man lives in direct contact with a cesspool of that kind, and exposed not only to the inhalation of it, but being exposed to the flies and insects that breed and propagate there, it would have a tendency to make him more susceptible to bacteria of any kind, whether it be smallpox or any other disease, either contagious or infectious. Not knowing the exact form of the' bacteria in the abscess, I would take it for granted that it was a mixed infection, and developed as a result of previous inflammation, and the bacteria developed with the conditions that the abscess was the result of that following typhoid fever. I have seen a few cases of the abscess of the liver and the gall bladder infections following rapidly on the heels of typhoid, showing that the fever broke, and within a few days other probable developments caused me to look with suspicion upon the typhoid infection. I am sure the abscess would not have formed on Mr. MeMurray’s liver without some previous existing condition leading up to that, and in this case everything is excluded except the malaria and the possibility of typhoid, and I attribute it to one or the other, or both, as the primary cause. But it has been my observation that an abscess of the liver is not so long in forming as that. I will say that malaria itself does not produce abscess on the liver. I say that under certain circumstances it would produce a condition for the development of the abscess.”'

Plaintiff, Mrs. Nellie McMurray, testified:

“I observed plenty of mosquitoes around there, and plenty of flies. I did not have so many mosquitoes in, my house. I had screens. I protect myself against that. Some mosquitoes got in. My husband took sick the first of February. He was sick 11 weeks. My doctor said he had typhoid malarial fever. Prior to the first .or middle of February when my husband took sick this time, he had never been sick that I know of. He was strong and healthy. I lived with him eight years before that, and he was never sick before, and was strong and healthy and worked every day.”

Unless some of the statements contained in the testimony copied above have a contrary tendency, all the physicians who testified indorsed the following theories, which, according to their testimony, are maintained by the best medical authorities: First. Malaria in the human system can result from no other cause than mosquito bites; and flies can transmit typhoid fever germs, which may be taken into the body through, the medium of food or drink, but in no other manner. Second. The female of a certain breed or species of mosquito may inoculate a person with the germs of malaria carried from another person first bitten, who has such germs in his blood; or such-germs may be carried from stagnant water or damp places where the mosquito breeds.- Third. Foul odors do not cause malaria, nor abscess of liver, nor any other disease, eo nomine. Fourth. The germ which causes malaria will not cause abscess of liver.

We come now to a consideration of the contention presented by one of appellant’s assignments, that the evidence is insufficient to support the judgment. Of course, it is exclusively the province of the jury to determine the weight of the evidence bearing upon an issue submitted for their decision. But it is also a well-established rule that, in the first instance, it is tlie province of the trial judge, as a predicate for tlie submission of sucb an issue to the jury, to determine whether or not tlie evidence introduced to sustain an allegation in a pleading is sufficient to convince a reasonable mind that the allegation is true. If so, the issue must be determined by the jury ; but, if not, the issue properly cannot be submitted to the jury for a failure of proof. And, if thus improperly submitted to the jury and determined by them favorably to the pleader, any judgment based on such a finding must be set aside. As the credibility of witnesses must be determined by the jury, in deciding whether or not the evidence is sufficient to support the verdict, it must be assumed that testimony bearing upon any issue is true whenever the testimony of one witness is not in conflict with that of another, and when such conflicts exist it is the province of the jury, and not the court, to reconcile them, if possible, or to accept the testimony of one witness to the exclusion of another.

From the foregoing it appears that the only theories suggested by the physician witnesses to account for formation of abscess of liver in Mr. McMurray’s case are: First, possibly malaria produced the abscess germs in some manner unknown to the medical profession; second, the patient’s vitality -was reduced by malaria resulting from bites of mosquitoes breeding in the pool, and from foul odors arising from the pool, and in consequence of such partial loss of vitality he was rendered more susceptible, and did succumb, to attacks of abscess germs originating in some manner unknown; or else, third, such germs were generated by malarial Plasmodium or decaying tissue o.f dead malarial germs deposited upon the liver; fourth, the abscess germs were caused by typhoid fever communicated by flies from the pool, if the patient had been so afflicted.

Taking those theories in the inverse order of their statement, it is to be noted that none of the witnesses testified that deceased was afflicted with typhoid fever; the nearest approach to such proof being the statement by Dr. Miller that he discovered symptoms of that disease, and the statement of Dr. Bras-well, who did not treat deceased, but testified merely as an expert, in effect, that the history of the case as related to him indicated a probability of typhoid fever, but he further said the presence of typhoid fever could not be definitely determined except by the Weedall test — a test that was never made. This theory, as well as the others mentioned, is purely speculative and conjectural, suggesting only possible causes of the abscess, and of insufficient probative force to support the judgment. Cohen v. Rittimann, 139 S. W. 59. Those theories furnish the only basis for opinions of experts necessary to establish the indispensable causal connection between foul odors from the pool, or malaria produced by mosquitoes breeding therein, or typhoid fever attributable to the nuisance if the patient was so afflicted, and abscess of liver, and the testimony of the physicians relative thereto amounts to no more than suggestions of theoretically supposable possibilities that the-abscess was caused by typhoid fever, if deceased had it, or that the lowering of the vitality of the patient resulting from foul odors and malaria traceable to the pool rendered the deceased more susceptible to the attack of abscess germs coming from an unknown source, or that the ’malarial germ either produced the abscess germ, or his decaying body, malarial plasmodium, deposited upon the liver, furnished a breeding bed for the incubation of abscess germs of some unaccountable origin. None of those witnesses gave any definite, positive opinion that the abscess can be accounted for upon any of those theories.

Appellees cite MacDonald v. Metropolitan St. Ry., 219 Mo. 468, 118 S. W. 78, 16 Ann. Cas. 810, by the Supreme Court of Missouri, in support of their contention that the jury were not bound by the testimony of the physicians, but were warranted in concluding from all the facts and circumstances in evidence that the negligence of appellant in maintaining the nuisance was the proximate cause of the disease which killed the deceased. We recognize tlie rule announced in that decision that a jury is not always bound by opinions of expert witnesses, but in some cases may base a verdict upon facts proven independent of such opinions. But that rule has no application in this case, since, in the absence of opinions by the physicians, the facts proven, tested by reason and common knowledge of unprofessional men, suggest no basis for a conclusion by the jury that abscess of liver, which killed the deceased, was caused by the nuisance. Even though it could be said that there was sufficient evidence to sustain a finding that, -upon some one of the theories noted the disease which killed Mr. McMurray is traceable to the nuisance, we would still have a further question perhaps difficult of solution, but which we do not decide, viz., whether, under all the circumstances, the evidence was sufficient to support the further indispensable finding that the railway company reasonably should have anticipated that such consequences might result from the nuisance; in other words, a finding that the negligence of defendant in maintaining the nuisance was the proximate cause of the death of Mr. McMurray. Planters’ Oil Co. v. Keebler, 170 S. W. 120.

The foregoing conclusions render it unnecessary to determine the' merits of other assignments appearing in the brief of defendant.

For the reasons stated, the judgment is reversed, and as it appears plaintiffs case has been fully developed, and that no useful purpose will be subserved by remanding it for another trial, judgment is here rendered for the defendant in the trial court, who is plaintiff in error here.
      <&wkey;>Eor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WILLSON, C. J.

text:
    GOSSETT v. VAUGHAN et ux.
    (No. 1307.)
    (Court of Civil Appeals of Texas. Texarkana.
    April 27, 1914.
    On Motion of Appellant for Rehearing, May 21, 1914.)
    1. Specific Performance &wkey;>35 — Contract of Married Woman.
    Where a husband contracted to convey his wife’s separate property, specific performance will not be granted on the theory that she ratified the contract, for the court is without power, in the absence of a contract on her part executed with reference to the requirements of law, to divest her of her title.
    [Ed. Note. — For other cases, see Specific Performance, Cent. Dig. §§ 102-106; Dec. Dig. <&wkey;>35.]
    2. Contracts &wkey;>346 — Issues and Proof.
    Where the petition relied upon one contract, recovery cannot be had on a subsequent contract.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1714, 1718-1751; Dee. Dig. &wkey;>346.]
    3. Pleading <&wkey;162 — Petition—Office of Supplemental Petition.
    Under District Court Rules 4 and 5 (142 S. W. xvii), providing that the original petition shall state all facts constituting the cause of action, and that the supplemental petitions may contain exceptions, general denials, and allegations of new facts in reply to facts alleged by the answer, the court in determining the cause of action stated need not consider the supplemental petition.
    [Ed. Note. — For other cases, see Pleading, Dec. Dig. <&wkey;>162.]
    4. Brokers <&wkey;76 — Compensation — Contracts.
    Where a contract to pay commissions to a real estate broker expressly provided that all commissions should be taken out of the sums collected, there can be no recovery of a large sum for sales made, upon which the purchase price had not yet been paid.
    [Ed. Note. — For other cases, see Brokers, Dec. Dig. <&wkey;75.]
    On Motion of Appellant for Rehearing.
    5. Brokers <&wkey;71 — Compensation — Contract.
    Where a landowner and a broker made a supplemental contract to fix their rights, the broker cannot recover on both contracts; for, if he performed the supplemental contract, he could recover only on it, and, if not, only on the original contract.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. § 56; Dec. Dig. &wkey;>71.]
    6. Fraudulent Conveyances t&wkey;241 — Creditors — Lien—Broker’s Contract.
    Where defendant, who was the apparent record owner of land, contracted with a broker to sell it on commissions, the broker cannot attack as void a previous unrecorded conveyance to defendant’s wife; for, as he had no lien, he does not come within the protection of Rev. St. 1911, art. 6824, declaring unrecorded conveyances to be void as to creditors.
    [Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 694, 696-726; Dec. Dig. <®=:>241.] I
    7. Vendor and Purchaser <&wkey;236 — Bona Fide Purchasers — Who Are.
    Unless one has paid a valuable consideration, he cannot question an unrecorded conveyance, under Rev. St. 1911, art. 6824, as a bona fide purchaser.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 570; Dec. Dig. O — ->236.]
    Appeal from District Court, Dallas County; Kenneth Foree, Judge.
    Action by Rufus 'A. Gossett against A. M. Vaughan, in which Catherine Vaughan, defendant’s wife, intervened. From a judgment for defendants, ifiaintiff appeals.
    Reversed and remanded on motion for rehearing.
    By his deed dated July 16, 1912, A. M. Vaughan conveyed the property known as the “Richmond Plill addition to the city of Dallas” to his wife, Catherine Vaughan. September 6, 1912, Vaughan, describing himself as the owner of 87 lots remaining unsold in said addition, and R. A. Gossett, a real estate broker, entered into a contract in writing, by the terms of which Gossett alone, for a period of one year, was to have a right to sell the lots. Each of the lots was to be sold at the price thereof indicated on a map or plat referred to in the- contract; the price to be paid “$10 down,” it was recited, “and $10 a month until the full purchase price is paid.” Gossett was to receive for his services 20 per cent, of the price of each lot he sold, and on this account was to be entitled to “the first $25,” it was recited, “on each lot and 50 per cent, of the balance of payments until his commission shall have been paid.” November 2, 1912, the contract was so modified as to permit Vaughan himself also to sell lots in the addition, and to provide that when he did so Gossett should receive 10, instead of 20, per cent, of the price at which the lots were sold.
    Between the time the contract was entered into and November 12, 1912, Gossett sold a number of the lots — some of them for prices in excess of those indicated on the map referred to. He claimed to be entitled to the sums, aggregating $780, representing these overcharges, and Vaughan by a writing dated said November 12, 1912, and specifying the lots sold at a price in excess of that they were to be sold for, agreed he might have same, and to pay same by deeding to Gossett a lot or lots in the addition, to cover the amount thereof, “after,” it is recited in the writing, “the said R. A. Gossett has remitted to A. M. Vaughan fifty dollars in cash on each of the above-mentioned lots, where the overage was charged.”
    As a result of differences between the parties growing out of the transactions between them, on November 14, 1912, they entered into another agreement as follows:

      “This memorandum between A. M. Vaughan, hereinafter styled owner, and Rufus A. Gossett, hereinafter styled agent, both of Dallas county, Texas, witnesseth: That for and in consideration of the cancellation of the contracts between these parties dated September 6, November 8 and November 12, 1912, copies of which are attached hereto and made a part hereof, and the further consideration that the herein named agent shall surrender to the owner all contracts and papers pertaining to the property described in the said agreement, and the release of all claims thereon, and the. said owner hereby agrees to pay the agent $733.75 in cash, and to execute a deed to said agent to lot No. 20, in block H, and lots Nos. 3 and 4, in block I, to the revised plat of Richmond Hill addition to the city of Dallas, in Dallas county, Texas, to said agent, to execute a deed to W. R. Gossett to lot 21, in block H, and of the same addition. All money, deeds and papers involved in this agreement are to be held in escrow, for fifteen days or less from this date, by a third party to be agreed on between the owner and agent, during which time the abstracts to this property are to be furnished agent by owner, showing good and merchantable title in said owner, free of all incumbrances, and examined by the agent at his expense, while the agent is to notify each party to whom he has heretofore sold property that all future payments arising under their deeds and contracts are to be made to the owner. The contracts of September 6, November 8 and November 12 to remain in full force and effect until this agreement is carried out. During the period of the papers’ remaining in escrow the owner is to verify the fact of the sales agreements made by agent and purchasers being bona fide, which the agent hereby agrees to guarantee that the same are made in good faith. The owner hereby agrees to forfeit $50 in the event this contract as written is not carried out.”
    By a petition filed November 16, 1912, Gos-sett commenced against Vaughan the suit resulting in the judgment from which this appeal is prosecuted. The allegations of the petition, except formal parts thereof, were as follows:
    “That heretofore, to wit, on or about the 6th day of September, A. D. 1912, plaintiff and defendant entered into a certain contract in writing, a copy of which is attached hereto, marked ‘Exhibit A,’ and made a part hereof, under the terms of which plaintiff as the exclusive agent for defendant was to sell land in Richmond Hill addition to the city of Dallas for a commission of twenty per cent, of the selling price as shown on the plat attached to said contract, said contract to be in existence for one year from its date. That on or about the 14th day of November, 1912, there was due and owing to this plaintiff from defendant the sum of $1,768.25, which this defendant admitted in writing he owed, and agreed to pay. Plaintiff would further show that by virtue of and under the contracts with defendant aforesaid, he had and is entitled to a vested interest in the land described in said contracts, which interest is irrevocable on the part of the defendant. Plaintiff would further show that he has good reason to believe and does believe and does hereby allege that unless defendant is prevented from so doing said defendant will dispose of said land, greatly to the damage of plaintiff, in the sum of $5,-000. Plaintiff would further show that defendant has heretofore and is now making threats against plaintiff to the effect that plaintiff shall not continue to advertise and sell said land, which he is employed to do under said contract; and further that defendant has threatened and is now threatening to interfere with the sale of said land by plaintiff and to interfere with the payment of installments past due and to become due by persons who have already made purchases of said land through plaintiff acting under his said contract, and to plaintiff’s damage in the sum of $5,000. Plaintiff by reason of the matters alleged has no adequate remedy at law, and unless the relief prayed for is granted plaintiff will lose the sales of lots already made and will be prevented from making further sales under said contract, greatly to plaintiff’s damage in the sum of $5,000. Wherefore, premises considered, plaintiff prays that he do have and recover of defendant the sum of $1,768.25, same being the amount now due him under said contract, and further that his interest in said land as shown by said contract be vested and fixed in accordance therewith, and further, pending this suit, that defendant be enjoined from anyway interfering with plaintiff in carrying out said contract or from interfering with any person or persons who have purchased or may hereafter purchase any of said land from plaintiff under his agency as set forth in said contract, and for such other and further relief, both general and special, which law or equity may afford and to which plaintiff may be entitled by reason of the premises.”
    On the day the petition was filed, a temporary injunction restraining Vaughan as prayed for was granted by the court, who directed that notice of his action be given to Vaughan, and that Vaughan be required to appear before him on November 23, 1912, and show cause why the injunction should not be continued in force. Before said day, to wit, on November 19, 1912, the parties entered into an agreement as follows:
    “This agreement made by and between A. M. Vaughan and R. A. Gossett, witnesseth: That whereas, said A. M. Vaughan has been granted fifteen days from and after Saturday, November 23, 1912, in which to investigate said contracts made by said R. A. Gossett for the sale of certain lots in Richmond Hill, an addition to the city of Dallas. Now, if the facts should develope that any of said contracts will not be carried out by the purchasers of said lots, by reason of any representation made to them by said R. A. Gossett, then in that event the amount of twenty per cent, of the selling price of said lot or lots shall be deducted from the amount of $733.75 due said Gossett by said Vaughan by virtue of one certain contract made by and between them the 14th day of November, 1912. This agreement is to be construed as a part of said contract of November 14, 1912. That said Gossett shall retain the amount paid as forfeit money on such contracts so repudiated, and the same shall be credited to said Gossett as shown by statement on which said contract of November 14, 1912, was based.”
    Catherine Vaughan having made herself a party to the suit, she and her husband, said A. M. Vaughan, on November 28, 1912, joined each other in an amended answer, in which they alleged that the Richmond Hill addition property at the date of the contract of September 6, 1912, and ever afterwards, was a part of Mrs. Vaughan’s separate estate, and in which, at great length, they charged that Gossett had been guilty of fraud and misconduct in various particulars in connection with the service he was to perform in selling the lots. In this answer they prayed that the contracts between Gos-sett and A. M. Vaughan be canceled, for damages, for the dissolution of the injunction granted to Gossett, and for the perpetuation of an injunction the court had granted to them against Gossett.
    In a supplemental petition Gossett denied the truth of the charges of fraud and misconduct on his part, alleged that the services he had performed under the contracts with Vaughan were for the benefit of Mrs. Vaughan’s separate estate, that she had received and accepted such benefit, and so had ratified and confirmed the acts of her husband; further alleged that Vaughan had full knowledge of the fraud and misconduct, if any, charged against him at the time they entered into the contracts of November 14th and November 19th, and then prayed judgment against Vaughan for the 1733.75 mentioned in the contract of November 14th, and that the title to the lots mentioned in that contract be divested out of Mrs. Vaughan and her husband and vested in him and the W. R. Gossett referred to.
    The trial was before the court without a jury. His findings of fact and law were not reduced to writing and filed as they might have been. In support of the charges of fraud and misconduct on Gossett’s part, there was testimony which would have supported findings as follows: (1) That Gos-sett having sold two lots to one W. W. Hogg, after collecting from said Hogg. $800, the entire purchase price thereof, by exhibiting to said Hogg a deed falsely purporting to have been made to him by Vaughan, concealed the fact from Vaughan and endeavored by false representations to induce Vaughan to convey the two lots to him (Gossett) for $350, intending, if Vaughan did so, to himself convey the lots to Hogg, and in that way defraud Vaughan of the difference between the $350 he would pay to Vaughan and the $800 Hogg had paid to him. (2) That Gossett sold to J. T. Irwin two lots listed at $185 each for an automobile valued at $750, and, after inducing Vaughan and his wife to execute a deed to Irwin reciting a consideration of $750 in cash paid to them, endeavored to have an employé' or associate of his (Gossett’s) to swear that he had seen him (Gossett) pay to Vaughan the $750 recited as paid to him in the deed, assuring the party he so attempted to suborn that, in the face of the recital in the deed Vaughan had executed, no jury would believe him if he should swear that the money had not been paid to him. And with reference to this transaction there was testimony to support a further finding that Gossett in violation of his contract had not paid to Vaughan any part of the consideration paid to him by Irwin for the lot, and was claiming that he was liable to Vaughan for only $296 (the list price less 20 per cent, as his commissions) on account of the transaction. (3) That Gossett, in violation of his duty as Vaughan’s agent, and acting with one Dubois as his partner, had purchased 15 of the lots on his own account. (4) That Gossett had violated the contract he had entered into with Vaughan by selling a number of lots at prices in ercese of the prices at which he had agreed to sell same; by selling some of them for smaller cash payments and smaller monthly payments than authorized by the contract; and by failing to pay over to Vaughan portions of sums paid by purchas ers, which it was stipulated he should pay to Vaughan. (5) That because of representations made by Gossett, and for other reasons, Mrs. Pritchard, N. O. Langley, A. F. Fisher, Sylvia .Cogburn, Mrs. A. Harrison, Mrs. Simpson, Nelson English, Fred Heit-meyer, Mrs. Kaufman, and perhaps other purchasers of lots, were dissatisfied with their purchases, and that some of them probably would refuse to comply with their contracts of purchase.
    The effect of the judgment rendered by the court was to dissolve the injunction granted to Gossett and to deny to him any of the relief he sought, and to deny to Vaughan and his wife a recovery of damages as sought by them, but to perpetuate the injunction the court had granted to them forbidding Gossett from selling any of the lots in the addition and from collecting from purchasers of lots he had sold any of the payments they had contracted to make the.re-for. This appeal is prosecuted by Gossett.
    Cecil L. Simpson and Geo. Sergeant, both of Dallas, for appellant. Walker & Williams and Will Crawford, Jr., all of Dallas, for ap-pellees.
   WILLSON, C. J.

(after stating the facts as above). Gossett, appellant, insists the- testimony demanded that judgment be rendered in his favor for $738.75 and for lot 20, in block H, and lots 3 and 4, in block I, and in favor of W. R. Gossett for lot 21, in block H. This insistence is based on the contract of November 14, 1912.

It is clear that the contention, at least so far as it applies to the lots, should be overruled; for the court was without power, in the absence of a contract on Mrs. Vaughan’s part, executed with reference to the requirements of the law, to divest her of the title to the lots and vest same in appellant and W. R. Gossett. Munk v. Weidner, 9 Tex. Civ. App. 491, 29 S. W. 409. In the case cited the court said:

“It would be a novel doctrine which, in the absence of positive fraud, would authorize a court to enforce specific performance of an oral agreement, or a written one not privily acknowledged, of a married woman, to convey her separate property in lands, which she could herself only convey in the manner and form provided by statute.”

It was not pretended that Mrs. Vaughan had agreed either verbally or in writing to convey the lots to appellant and W. R. Gos-sett, but merely that she had ratified a contract to do so made by her husband for her benefit.

As to tlie contention that judgment should have been rendered for appellant against Vaughan for the $733.75 mentioned in the contract of November 14th, it may be that the action of the court should not be sustained on the ground of misconduct on the part of appellant in the particulars set out in the statement above, because it appeared that Vaughan knew of such conduct at the time he entered into that contract. It may be, also, that the action of the court should not be sustained because of the absence of testimony showing that appellant had complied with his undertaking under that contract to place in escrow all deeds, papers, etc., held by him relating to the sale of the lots. We think it unnecessary to determine those questions, because we think it is a sufficient answer to the contention to say that appellant’s suit was not on that contract, but on the contract of September 6, 1912, as will be readily seen by referring to the allegations in his original petition set out in the statement. Plaving declared on the contract of September 6th, appellant was not entitled to recover on proof of a breach of the contract of November 14th. It may be true that the contract of November 14th was sufficiently declared upon in the supplemental petition, but that was not the place to set up the cause of action relied upon, and we do not think the court was bound to look to that petition and treat it as a basis for his judgment. Rules 4 and 5 for the Government of District Courts (142 S. W. xvii); Ins. Co. v. Camp, 64 Tex. 521. That appellant was not entitled to recover on the contract of September 6th, which he declared on, is plain. By the terms of that contract the commissions he might become entitled to were to be paid out of sums collected by him of purchasers of lots, and in no other way.

The judgment is affirmed.

On Motion of Appellant for Rehearing.

In stating the effect of the judgment, we overlooked a part thereof as follows:

“It is further ordered, adjudged, and decreed by the court, that the written contracts of date September 6, 1912, November 8, 1912, November 12, 1912, November 14, 1912, and November 19, 1912, be and the same are hereby canceled and hereby adjudged and decreed to be null and void and of no further force and effect.”

Appellant insists, and we agree, that the judgment is erroneous in so fai as it cancels the contracts specified. Appellees in their cross-action alleged facts showing that appellant had repeatedly breached the contract of September 6th, but, as we understand the record, neither alleged nor proved facts entitling them to a decree canceling that contract, and certainly did not by either their pleadings or proof show they were entitled to have the other contracts, or any of them, canceled. Eor this error the judgment will be reversed, and, as we do not think on the record here we should undertake to reform and then affirm the judgment, the cause will be remanded for a new trial.

As noted in the opinion, appellant in his original petition sought a recovery on the contract of September 6th, and in his supplemental petition on the contract of November 14th. The purpose of the latter contract was to adjust the rights of the parties under the former contract. If appellant was entitled to recover on one of them, he was not entitled to recover on the other. If he had so complied with his undertaking under the contract of November 14th as to be entitled to enforce it, he was not entitled to a recovery, without reference to it, on the contract of September 6th. If he had not so complied with his undertaking under the contract of November 14th, then his cause of action against Vaughan, if any he had, was on the contract of September 6th, and he could not claim anything on account of the contract of November 14th. In that attitude of the case, the rights of the parties being unadjusted, same would have to be determined by reference to the contract of September 6th. It seems to us that the issues between the parties could be more satisfactorily determined on another trial if the parties were required to replead the case, and we suggest to the trial court the propriety of having them do so.

We adhere to the conclusion reached that, if the lots appellant seeks to recover belonged to Mrs. Vaughan’s separate estate, he is not entitled to a decree devesting her of the title and vesting same in him and W. R. Gossett. Appellant’s contention is that he was entitled to that relief because he was in the attitude of an innocent purchaser, in that, being ignorant of Mrs. Vaughan’s claim, he dealt with Vaughan at a time when the deed to Mrs. Vaughan was not of record and the title to the lots appeared on the face of record to be in Vaughan. In support of his contention, appellant cites the statute (article 6824, R. S. 1911) which denounces “all bargains, sales and * * * conveyances whatever, of any land,” as “void as to all creditors and subsequent purchasers for valuable consideration without notice, unless they shall be acknowledged or proved and filed with the clerk, to be recorded as required by law.” But, clearly, appellant was not within the protection of the statute. It has been construed as applying only to creditors who have acquired a lien against property on account of which it is invoked, and appellant was not such a creditor. As a purchaser he was not within the statute because it did not appear that he parted with anything of value on the faith of Vaughan’s being the owner of the lots, and Vaughan’s undertaking to convey same to him and W. R. Gossett was to pay a debt appellant and W. R. Gossett claimed he owed them.

The motion will be granted, the judgment will be reversed, and the cause will be remanded for a new trial.
      <@c^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    GULF, C. & S. F. RY. CO. v. McKINNELL.
    (No. 8064.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Dec. 19, 1915.)
    1. Trial <&wkey;304r — Misconduct oe Jury — Ee-eect.
    Jurors in a personal injury action, who while deliberating on the verdict discussed the proposition that plaintiff would be required to pay a large sum to his attorney for services rendered, and that by reason thereof a larger verdict was rendered than otherwise would have been rendered, were guilty of misconduct necessitating the setting aside of the verdict.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 725-727; Dee. Dig. &wkey;804.]
    2. Evidence <&wkey;553 — Opinion Evidence — Assumption oe Fact.
    A question asked a physician, which assumes a fact not shown by any testimony, is improper, when calling for the opinion of the physician.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2369-2374; Dec. Dig. <&wkey;558.'j
    3. Damages &wkey;>16S — Personal Injury — Assessment oe Damages — Evidence—Admissibility.
    Where plaintiff, suing for a personal injury, testified that after the accident he felt smart sensations in his hip, groin, and leg, and a feeling of pain on standing, and that following the accident his former ability to walk had been greatly impaired, testimony that plaintiff, after the accident, had been observed to walk with a limp was admissible, as against the objection that a limp was not the proximate result of any injury.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 480, 482-486; Dec. Dig. <i&wkey;I68.J
    4. Evidence <&wkey;128— Personal Injuries — Assessment oe Damages — Declarations oe Person Injured — Res Gestie.
    Under the rule that testimony of complaints of present pain and suffering is admissible on the principle of res gestas, the admission of the testimony of a -physician that plaintiff complained of tenderness in his spine was not erroneous, in the absence of anything to indicate that complaint of tenderness was not within the rule; but the admission of testimony that plaintiff complained of becoming tired when standing, and that he could not work as long as previously, and did not sleep as well as he formerly did, was erroneous, because not within the rule.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 383-387; Dec. Dig. &wkey;128.]
    5. Trial &wkey;>194 — Instructions—Weight oe Evidence.
    An instruction in a personal injury action, directing the jury to consider the earning capacity and ability of plaintiff before 'and since the accident causing the injuries complained of, if from a preponderance of the evidence the jury find a difference therein, is not on the weight of the evidence.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 413, 436, 439-441, 446-454, 456-466; Dec. Dig. t&wkey;>194.]
    6. Damages <&wkey;187 — Personal Injuries — Loss oe Ability to Earn Money.
    Testimony of plaintiff, suing for a personal injury, that in some lines of business his ability to earn had been diminished by reason of the injury, was not necessarily overcome by proof that he received his regular pay during the time he was laid off after the accident, and that since resuming his employment his salary had been increased.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. § 509; Dec. Dig. <&wkey;>187.]
    Appeal from District Court, Tarrant County; Marviri. H. Brown, Judge.
    Action by Harry L. McKinnell against the Gulf, Colorado & Santa Fé Railway'Company. Prom a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    Terry, Cavin & Mills, of Galveston, and Lee & Lomax and W. D. Smith, all of Ft. Worth, for appellant. Clendenen & Simmons, of Ft. Worth, for appellee.
   DUNKLIN, J.

As a result of a collision between two trains operated by the Gulf, Colorado & Santa Fé Railway Company, near the town of Davis, Okl.-, Harry L. Mc-Kinnell, a railway mail agent, who was riding on one of those trains, sustained personal injuries, and he instituted this suit against the company to recover damages therefor. He recovered judgment for the sum of $6,500, and the company has appealed.

As one of the grounds stated in the defendant’s motion for new trial, it was alleged, in substance, that the jury, during their retirement for the purpose of reaching a verdict, improperly considered and were influenced by suggestions and arguments, made by some of them to the rest, that plaintiff would be required to pay from $1,-500 to $2,500 to his attorneys for their services in prosecuting the suit, and that damages should be allowed in a sum sufficient to cover that expense, in addition to the amount necessary to compensate him for Ms injuries. An affidavit of Geo. L. Wilkinson, one of the jurors, was attached to the motion. That affidavit reads in part as follows:

“That before the jurors had agreed on the amount of the verdict afiiant stated to the other jurors that he thought $3,000 would be full compensation to the plaintiff, 'and that he thought the verdict should be returned for that amount. That following the suggestion of affiant as to the amount the verdict should be for, several of the jurors stated that plaintiff would have to pay his attorneys, and there was quite a general discussion as to attorney’s fees; it being stated by some of the jurors that the attorneys would get $2,000 to $2,500. That this was stated, as affiant understood, as a reason why affiant and others, who were in favor of giving plaintiff an amount in the neighborhood of $3,000' should consent to give more. That afiiant was influenced by the argument as to attorney’s fees, and finally consented to give $6,500 to plaintiff because of the argument that plaintiff would have to pay his attorneys out of the judgment he recovered.”

In addition to that affidavit, the court, in considering the motion, heard the oral testimony of Samuel Oalcaterra, O. I. Brown, and S. O. Skieldig, also members of the jury, who corroborated the affidavit of Geo. L. Wilkinson to the effect that plaintiff would likely be required to pay from $1,500 to $2,-500 as attorney’s fees, and from whose testimony it clearly appears that that suggestion and argument influenced them, and probably other jurors, who did not testify, to allow damages in a sum to cover such expenses over and above the amount necessary to compensate plaintiff for his injuries. No testimony was offered to rebut the testimony of these jurors, and we are of'the opinion that the court erred in refusing to grant new trial. Eor this error the judgment must be reversed.

In view of another trial, we will make some observations upon questions presented by other assignments. Dr. McLean, witness for the plaintiff, testified that:

“If the plaintiff had a partial dislocation of the hip, the witness could make a rational guess as to what was the matter with the plaintiff’s hip, and that he doubted if plaintiff could be cured of the pain in the hip.”

Objection was urged to this testimony by the defendant; one of the grounds of the objection being that no evidence was introduced to show any partial dislocation of plaintiff’s hip. We are of the opinion that the testimony should have been excluded upon that objection, the truth of which we find was sustained by other evidence, which was uncontroverted.

Appellant insists that the court erred in admitting testimony of the witnesses O’Sullivan and Dr. McLean to the effect that after the wreck in question plaintiff was observed to walk with a limp ; the ground of the objection to such testimony being that there was no competent evidence to show that such limp was the proximate result of any injury received in the wreck. That objection was without merit, in view of plaintiff’s testimony as follows:

“After I was extricated from the wreck, I felt smart sensations in my hip, in my groin, and in my leg, and a feeling of pain on standing,” and, further, that following the accident his former ability to walk had been greatly impaired.

Dr. McLean testified that during the six or eight months subsequent to the wreck, and while plaintiff was under his observation, the plaintiff complained of a tenderness in his spine and of becoming tired when standing on his feet, that he could not work as long as previously on account of getting exhausted, and that he did not sleep as well as he formerly did. This testimony was objected to as. a whole, upon the ground that it was hearsay, and therefore incompetent. It is a familiar rule that testimony of complaints of present pain and suffering is admissible upon the principle of res gestse. Evidently the testimony was admitted under that rule. It does not appear whether or not complaint of tenderness in the spine was made under circumstances that would make it admissible under that rule, and therefore we "cannot say that it affirmatively appears that the court erred in admitting that statement; but it is apparent that the rest of the testimony was not admissible under that rule, being hearsay and subject to the objection urged.

Complaint is made of the refusal of the court to give the defendant’s requested charge No. 6, which was, in effect, that plaintiff was not entitled to recover for a certain physical condition mentioned in that instruction, and alleged in plaintiff’s petition. Some evidence was offered relative to that condition, which was of such a nature as might influence the jury in the rendition of their verdict; and, while the court did not submit that issue in his general charge, we are of the opinion that the requested instruction should have been given to insure the defendant against any possible harm by reason of the testimony relative to that condition.

The sixth assignment of error is addressed to the admission of testimony relative to an operation performed for the particular physical condition last referred to. The objection to the testimony was that there was no proof that such operation was made necessary by reason of the accident. Upon a careful review of the record, we are of the opinion that the objection should have been sustained.

The charge of the court upon the measure of damages reads as follows:

“In arriving at the amount of damages., if any you give to the plaintiff, you may take into consideration the physical pain, if any, sustained by the plaintiff by reason of said wreck, and such as you may find, if any, he will suffer in the.future. You may also take into consideration the earning capacity and ability of the plaintiff before and since said accident, if from a preponderance of the evidence in the case you find a difference therein, and if from a preponderance of the evidence in the ease you find that the plaintiff has sustained injuries, if any, from which he has not yet recovered, if you so find, or from which he will not in the future recover, if you so find, then you may take such fact or facts into consideration, if any you find, in arriving at the amount of damages, if any, that you may assess against the defendant and for the plaintiff.”

Error has been assigned to that instruction upon the ground that the language used, “You may also take into consideration the earning capacity and ability of the plaintiff before and since said accident, if from a preponderance of the evidence in the case you find a difference therein,” is a charge upon the weight of the evidence, and upon the further contention that there was no proof that plaintiff’s earning capacity had been lessened by reason of his alleged injuries. Clearly the charge is not subject to the criticism that it was upon the weight of the evidence. It is a correct statement of the law upon that issue. Testimony offered by the plaintiff tended to show that his ability to earn money in some lines of business at least had been diminished by reason of the injury which he claimed to have received in the accident. Such testimony was not necessarily overcome by proof that he received Ms regular pay from the government during the six months he was “laid off” after the accident, and since resuming tlie duties of Ms employment his salary has been increased to a sum greater than he received before the accident. Accordingly the assignment last noted is overruled.

For the reasons noted, the judgment is reversed, and the cause remanded.
      <g=3Por other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BUCK, J.

text:
    ORIENT LAND CO. v. REEDER.
    (No. 8071.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Jan. 9, 1915.
    On Motion for Rehearing, Feb. 20, 1915.)
    1. Cancellation or Instruments <@=543 — Va-BIANCE — FRAUDULENT REPRESENTATIONS.
    Where the petition, in an action to cancel a deed for fraudulent representations, alleged that the representations were made by a particular agent of defendant, plaintiff’s evidence that the representations were made by another agent was at variance with the allegations and inadmissible.
    [Ed. Note. — For other cases, see Cancellation of Instruments, Cent. Dig. §§ 96-99; Dec. Dig. <@=543.]
    2. Appeal and Error <&wkey;1054r — Admission op Incompetent Evidence — Prejudicial Error.
    The admission of incompetent evidence required a reversal, where it appeared that the court’s findings were based thereon, and there was not sufficient competent evidence to support necessary findings.
    [Ed. Note. — For other cases, see Appeal and Error. Cent. Die. §§ 41S5, 4180; Dec. Dig. <©=5 1054.]
    3. Evidence <&wkey;135 — Misrepresentations — Similar Statements.
    In a suit to set aside a deed for fraudulent representations, made by defendant’s agent to plaintiff, relative to the location of railroad machine shops, the testimony of a witness as to statements made to him by such agent, not in the presence of plaintiff and not communicated by him to her, relative to the location of the machine shops, was inadmissible.
    I Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 392, 394, 404, 405; Dec. Dig. <@=13o.]
    4. Cancellation of Instruments <@=>47 — Evidence — Variance.
    Where, in an action to cancel a deed for misrepresentations made by a particular agent of defendant, the evidence was that the representations were made by another, thus creating a variance between the pleading and proof, and there was evidence that such other person was in fact defendant’s agent, the court was not required to render judgment for defendant.
    [Ed. Note. — For other cases, see Cancellation of Instruments, Cent. Dig. §§ 102, 103; Dec. Dig. &wkey;47.]
    On Motion for Rehearing.
    5. Cancellation of Instruments <@=543 — Pleading and Proof — Variance.
    In an action to cancel a deed as procured by fraudulent representations, only such representations can be proven as are specifically alleged.
    [Ed. Note. — For other cases, see Cancellation of Instruments, Cent. Dig. §§ 96-99; Dee. Dig. <&wkey;43.]
    Appeal from District Court, Knox County ; J. A. P. Dickson, Judge.
    Suit by Mrs. M. A. Reeder against the Orient Land Company. From judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    D. J. Brookreson, of Benjamin, for appellant. Jas. A. Stephens, of Benjamin, and Ocie Speer, of Ft. Worth, for appellee.
   BUCK, J.

This was a suit by appellee against appellant, filed May 23, 1912, praying for cancellation of a certain deed executed by her to' appellant, dated June 17, 1905, conveying 37% acres of land, in Knox county; the consideration recited being “§100 cash and other valuable consideration.” She alleged that said conveyance was procured through certain false and fraudulent representations made by one R. L. McCaulley, alleged to have been the duly authorized agent of appellant, which was a copartnership composed of seven named parties. She alleged, in substance: That said McCaulley, as such agent of appellant, had represented to her that, .if she would execute said deed, the appellants would cause to be erected in the town of Knox City, the warehouses and shops of the Kansas City, Mexico & Orient Railway Company, of which railway company McCaulley was alleged to be the vice president, and would select, for such purposes, the ground upon which said roundhouses and shops would be built That no consideration other than said promise was paid appellee, and that she relied on such representations, and that said conveyance was obtained by fraud. She further alleged : That said railway company did not locate said roundhouses and shops at Knox City. That it did not permanently locate the same until January, 1912, when it located them at -San Angelo, and therefore she did not discover the fraudulent character of said representations alleged to have been made by McCaulley, as the agent of appellant, until said date. She alleged that in case she was mistaken in her allegations of fraud, and that if in fact it was the intention and purpose of appellants, in securing said land, to locate said railway improvements at Knox City, then, in view of the fact that nothing had been done in pursuance of said purpose, no money had been expended to such end, and, in view of the fact that .said railway company was insolvent, that the consideration for the conveyance of said land had totally failed; and hence she prayed that said deed be canceled.

Appellant answered by general demurrer, and by specially interposing the two and four years’ statutes of limitations, and specially pleaded that if any such promises and representations were made by McCaulley, which appellant denied, they were unauthorized and not within the apparent scope of his authority, and such that no ordinarily prudent person would have relied on. It further denied that it had any connection with or control over the said Kansas Oity, Mexico & Orient Railway Company.

Eor the purpose of the disposition of this appeal, sufficient pleadings have been given hereinabove.

In its first assignment, appellant complains of the admission of the testimony of appellee, in which she states that one R. D. Goree told her that, if she would execute the deed to the land in controversy to appellant, they would get the roundhouses and shops, and, if she did not, Carney (another town) would.

Mrs. Reeder testified that she never had any conversation with Mr. McCaulley about the matter, and that, in executing the deed to the land in controversy, she relied on the statements made to her by Goree.

We think this evidence was inadmissible, under the pleadings of plaintiff. She having alleged that the representations were made to her by McCaulley, it constituted a variance between the allegata and probata to show that said representations so relied on were made by some other person.

“The object of pleading is to apprise the court and the opposite party of the facts upon which the pleader intends to rely as constituting his cause of action or ground of defense before the trial is commenced, in order that each party may prepare himself in time with his evidence for the contest, and neither can be held legally bound to answer grounds not averred in the pleadings.” Mims v. Mitchell, 1 Tex. 443.

Also might be cited Moore v. Kennedy, 81 Tex. 144, 16 S. W. 740, Lemmon v. Hanley, 28 Tex. 227, and numerous cases cited in Michie’s Digest, Texas Civil Cases, vol. 13, p. 1168.

While it is true that, where incompetent evidence has been admitted, a reversal will not be required unless injury 'is shown, and especially is this so where the cause has been tried by the court without a jury, but, in order to render the admission of such evidence harmless error, it must appear that there was competent evidence sufficient to authorize the rendition of the judgment. Beham v. Ghio, 75 Tex. 90, 12 S. W. 996; Melton v. Cobb, 21 Tex. 543; 1 Greenleaf on Evidence, § 49. But we are of the opinion from a careful consideration of the statement of facts and of the findings of fact, filed by the" trial court, that such findings must have been based in part upon evidence which was clearly incompetent, and that there is not competent evidence in the record sufficient to support some of the necessary findings.

The court finds that R. D. Goree was also the agent of the Orient Land Company, and that in making the representations to Mrs. Reeder, alleged to be fraudulent, said R. L.-McCaulley was “acting through and together with R. D. Goree.” There is no evidence in the record, so far as we have been able to discover, to sustain such a finding; and, since it appears from such finding that the court admitted the evidence complained of on the theory that, in making the alleged representations to Mrs. Reeder, said Goree was acting as the agent of the Orient Land Company, and presumably of said McCaulley (i. e., the agent of the agent), the injurious character of such evidence becomes more apparent.

Therefore we think that this assignment must be sustained, and likewise the second and third assignments, which involve the same question.

The fourth assignment complains of the action of the court in admitting the testimony of the witness W._M. Sandifer, and in considering the same in determining the issues, wherein said Sandifer testified to certain statements of said McCaulley, not made in the presence of appellee, and which he (Sandifer) did not communicate to her, the substance of which was that, if the citizens of Knox City would give appellant some additional land, the Orient Railroad would locate the shops and roundhouses in Knox City. This evidence was clearly inadmissible, in the absence of any testimony that the same was communicated to appellee, and we find none in the record. Therefore the fourth assignment must be sustained. The fifth, sixth, and seventh assignments must be sustained for the same reason.

Appellant’s assignments 8 to 13 attack the court’s findings of fact, which assignments it is not necessary to discuss, inasmuch as the errors complained of, if any, will not likely occur on another trial.

Further assignments complain of the action of the court in the rendition of the judgment; and in the seventeenth assignment it is urged that the trial court erred in not rendering judgment for appellant, and this court is asked to reverse the judgment of the court below, and render judgment for appellant, on the ground that, as claimed, appellee has failed to show fraud, and at most only a breach of a covenant, but this request we do not feel it is our duty to grant. If R. 'D. Goree was in fact the agent of the appellant, as found by the court, and as there is some evidence tending to show, then in another trial, with amended pleadings, the testimony of Mrs. Reeder as to statements made to her by him, which she claims induced her to execute the deed, would become admissible and material, and we feel that justice, perhaps, would not be done by our rendering judgment herein.

For the reasons given, the judgment of the trial court is hereby reversed, and the cause remanded.

On Motion for Rehearírig.

Counsel for appellee urgently but courteously insists that this court erred in its original opinion as to the disposition of the case and the conclusions therein reached. It is claimed: First, that this court erred in sustaining the group of assignments alleging error because of tbe admission of certain testimony which was held to constitute a variance between the pleadings and proof. We are cited to the language used by the Indiana Appellate Court in Colt v. Lawrenceburg Lbr. Co., 44 Ind. App. 122, 88 N. E. 720, as follows:

“There is no difference in law between, a charge that a contract was made directly with a party and a charge that it is made with his agent”

—as sustaining appellee’s contention that the testimony of Mrs. Reeder, as to representations claimed to have been made to her by R. D. Goree, was admissible under the allegations in the petition that the representations on behalf of defendant company, alleged to be false and fraudulent, were made by R. L. McCaulley. In the first place, the proposition enunciated by the Indiana court is perhaps too broad as an accurate and yet comprehensive statement of the principle of law involved, and must be understood with reference to the particular state of facts involved in that case. It was a suit bn a contract against a married woman for material and labor alleged to have been furnished her for the construction of a greenhouse on her premises. She answered by a general denial, and by the further allegation that the labor and material was furnished her husband, who was not authorized by her to contract for same. Plaintiffs, in supplemental pleading, alleged that defendant’s husband was her agent, and therefore she was bound by his contracts undertaken with her knowledge and consent and, as it appeared, for her benefit. Defendant urged that this supplemental pleading constituted a departure or variance from the allegation in the original petition. In overruling this objection the court used the language quoted. In the sense and connection used, it was a correct, apt enunciation of the law.

In the instant case, plaintiff nowhere alleged fraud or misrepresentations, except as involved in and constituted by the alleged misrepresentations of McCaulley. No general allegation of fraud or misrepresentations by defendant was made. Acts or conduct relied upon as constituting fraud must be specifically averred. Austin v. Talk, 20 Tex. 165; Hendrix v. Nunn, 46 Tex. 141, 149; Baines v. Mensing Bros. & Co., 75 Tex. 200, 12 S. W. 984. Pacts and circumstances must be set forth to show the alleged fraud or mistake entitling plaintiff to equitable relief. Daughtrey v. Knolle, 44 Tex. 450-455; Adams v. Huffmaster, 42 Tex. 15, and cases cited supra. Where a plaintiff seeks the cancellation of a conveyance as induced by certain false and fraudulent representations made by defendants, only such representations and promises as are alleged and relied on can be considered by the jury. Touchstone v. Staggs, 39 S. W. 189.

It is true that, where there is no question of the agency of a person and his authority to act for the defendant, proof of the acts of such person within the scope of his agency supports an allegation that the acts were those of the defendant. Baldwin v. Polti, 45 Tex. Civ. App. 638, 101 S. W. 543. In the last-cited case the evidence as to the acts of the agent were admitted without objection, but the alleged, variance arose upon the charge of the court and the allegation in the petition. But where the plaintiff does allege the name of the agent, whose words or conduct are relied upon to bind defendant, and especially so in a stdt based upon alleged fraud and deceit, and predicates his entire case upon this allegation of agency, it seems to us, under the authorities, he is precluded from introducing testimony of the statements or acts of another, sought to be shown as agent of defendant. Peyton et al. v. Cook, 32 S. W. 781; Lewis v. Hatton, 86 Tex. 533, 26 S. W. 50; Guffey v. Moseley, 21 Tex. 408.

In the case of Peyton v. Cook, supra, the Court of Civil Appeals of the Fifth District of Texas, speaking through Justice Rainey, and in referring to the case of Lewis v. Hatton supra, says:

“Whatever may have been the decisions of this court heretofore on this point, the case above cited, in our opinion, fully settles the doctrine that where a wrong is done by an agent, although the principal may be liable therefor, yet, in order to admit proof as against him, it must be alleged that the act was done by his agent. The mere allegation that the act was done by the principal is not sufficient to warrant a recovery if the wrong was done by the agent.”

In the ease of Stevenson v. Cauble, 55 Tex. Civ. App. 75, 118 S. W. 811, this court, speaking through Justice Dunklin, and quoting from the syllabus, held:

“Where a vendor sought cancellation of the contract for false representations as to the location of the land, alleged to have been made by the vendor, evidence that the representations were in fact made by the vendor’s agent constituted a variance” — citing, in addition to the authorities already cited in this opinion, Arndt v. Boyd, 48 S. W. 771.

If, then, the evidence of an act done by an agent constitutes a variance, when such act is -alleged to have been done by the principal, a fortiori, the allegation that the act was done by one agent and the proof that it was done by another, would constitute a variance between the allegata and probata. Variance, as used in this connection, means a material difference — one that would probably surprise and mislead the adverse party. It seems to us that the case at bar affords rather an extreme instance of the application of this principle, one in which the court would be justified in indulging in the presumption that the defendant, in the court below, was injuriously affected. Plaintiff had pleaded the fraudulent representations upon which she relied for cancellation of the deed to have been made by R. L. McCaulley, a nonresident, whose deposition had been taken, and therefore what his testimony would be was known to both parties when they announced for trial. He had denied making the representations alleged, other than those contained in the written contracts. Upon the trial, the appellee, in order to establish her case, resorts to proof of alleged misrepresentations made by another, one who, according to her own testimony, was her confidential man, and one who had, immediately before she testified, been introduced by her as a witness in her behalf; she thus vouching for his credibility and truthfulness. To support the Judgment, the trial court found it necessary to find, or at least did find, that said Goree, appellee’s own agent and witness, was the representative and agent of the appellant, and that MeOaulley, as the agent of appellant, in making the misrepresentations acted through and together with said Goree. Consequently we feel that we must adhere to our conclusions reached in the original opinion in sustaining the first group of assignments. As our former holding must be adhered to, we do not feel that any useful purpose would be subserved by a further discussion of the argument advanced by appel-lee in her motion for rehearing.

Motion for rehearing is overruled.
      &wkey;>For other cases .see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes