author: RASBURY, J.

text:
    HOUSE v. FILGO et ux.
    (Court of Civil Appeals of Texas. Dallas.
    Jan. 17, 1914.
    Rehearing Denied Feb. 14, 1914.)
    1. Appeal and Error (§ 981) — Discretion op Teial Court — Motion foe Ne,w Trial— Newly Discovered Evidence.
    A motion for new trial for newly discovered evidence is generally addressed to the trial judge’s sound discretion, whether the trial be by a jury, and his action thereon will not be reviewed unless it affirmatively appears that he has abused such discretion.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3876; Dec. Dig. § 981.]
    2. New Trial (§ 99) — Newly Discovered Evidence — Discretion oe Court — Trial by Court.
    Where the trial was by the judge without a jury, the court had more latitude in considering a new trial for newly discovered evidence than it would have had in a jury case.
    [Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 201, 207; Dec. Dig. § 99.]

      3. New Trial (§ 108) — Discretion op Trial Court — Newly Discovered Evidence.
    In an action for the conversion of a vendor’s lien note which defendant claimed had been assigned to him to secure the payment of a debt, it was not an abuse of discretion to deny a motion for new trial for newly discovered evidence that plaintiff confessed that he assigned the note to defendant for the purpose stated, where it did not appear that the alleged newly 'discovered evidence would have produced a different result.
    [Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 226, 227; Dec. Dig. § 108.]
    Error from District Court, Dallas County; Kenneth Foree, Judge.
    Action by Henry Filgo and wife against Ellis P. House. Judgment for plaintiffs, and defendant brings error.
    Affirmed.
    Wm. J. Berne, of Ft. Worth, for plaintiff in error. Whitehurst & Donalson, of Dallas, for defendants in error.

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

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

   RASBURY, J.

Defendants in error sued plaintiff in error to recover a vendor’s lien note for $829.58, alleging conversion by plaintiff in error. John G. Wilson, who held the note pending the dispute between plaintiff in error and defendants in error, was made a party defendant. Plaintiff in error denied the conversion and by special plea alleged that the note had been assigned to him by defendants in error to secure payment of a debt of $750 due him by the defendant in error Henry Filgo. This plea was followed by prayer for appropriate protection in that behalf. A jury was waived, and trial was had before the judge, who found the title of the note to be in ■ defendants in error, and enjoined plaintiff in error and Wilson from interfering with the title and possession thereof.

After judgment plaintiff in error discovered evidence alleged to have been unknown to him at the time of the trial, because of which he sought another trial, and the refusal of the court to grant him a new trial on that ground is the sole error assigned upon this appeal. For a correct understanding of the issue it is necessary to state that upon trial defendants in error proved, by facts sufficient to sustain the judgment, that, prior to the transaction herein detailed, they sold their homestead in Dallas county to W. G. Biggett, agent, taking his notes therefor, one being the note in controversy, which was secured by the vendor’s lien on the land conveyed. After the sale of' the land defendant in error Lucinda Filgo sued defendant in error Henry Filgo, her husband, for d|vorce; her attorney being plaintiff in error. In the divorce suit injunction was issued against defendant in error Henry Filgo restraining him from disposing of the community assets of himself and wife, and, at the time of the service of the writ, Filgo delivered the note in controversy to plaintiff in error, with the understanding that he would produce same upon - trial of the divorce case. The divorce suit was to be tried May 25,1912, but prior thereto same was dismissed upon demand of defendant in error Lucinda Filgo. Lucinda Filgo paid plaintiff in error $250 in payment of plaintiff in error’s professional services in the divorce case. About the time Lucinda Filgo dismissed her suit for divorce, plaintiff in error, on the ground that it was necessary to protect Lucinda, procured defendant in error Henry Filgo to indorse the note in controversy to his wife as part of her share of the community estate. Defendant in error Henry Filgo did indorse and deliver the note to his wife. Plaintiff in error then induced Lucinda Filgo to indorse her name on the note, advising her such course was necessary in order for her to receive the benefit of the assignment to her, which she believed and relied upon. She did not intend by her indorsement to convey any right or interest in the note to plaintiff in error.

Plaintiff in error upon trial proved by facts sufficient to have sustained a judgment in his favor, had it been rendered, that defendants in error were indebted to him in the amount of $800, less certain immaterial credits which were due under a contract by Which defendants in error employed plaintiff in error to defend one Bud Simpson, defendant in error, Lucinda Filgo’s brother, who was charged in one indictment with aggravated assault and in another with first degree murder. On the day the assault case was set ffir trial, plaintiff in error accepted the note of defendant in error Henry Filgo and Monroe and Clark Simpson; for $50, in payment of his fee in the assault charge against B,ud •Simpson. Afterwards plaintiff in error, in company with defendant in error Henry Fil-go, Monroe and Clark Simpson, visited Bud Simpson at the jail, and after some negotiations pro and con it was finally agreed that plaintiff in error should be paid $750 to defend Bud Simpson on the murder charge, $250 to be paid January 1, 1912, represented by the note of defendant in error Henry Filgo, and $500 to be paid at trial of the case; Filgo stating at the time that he was about to sell some land in Tarrant county, from which source he could secure the $750. After this transaction defendant in error Lucinda Filgo employed plaintiff in error to file the divorce suit against her husband, Henry Filgo. Suit was filed, injunction issued, and the note in controversy delivered to plaintiff in error substantially .in the manner claimed by defendants in error. Pending settlement of the divorce suit, Henry Filgo asked plaintiff in error to assist him in adjusting matters between him and his wife. Plaintiff in error declined to do so and suggested that he employ an attorney to represent him in the matter, which he did. Plaintiff in error and the attorney for Henry Filgo, after some parleying, agreed on a settlement of the divorce case. Filgo promised the land notes to his wife, and indorsed one of them to her. While the defendants in error were at the office of plaintiff in error closing up the divorce suit, he told them he would not represent Bud Simpson any longer, unless his fee was secured, since they had not paid the $250 note, and he had been compelled to sue upon it. Plaintiff in error advised them they could either release him from his agreement to represent Simpson or secure his fee by assigning the note in controversy. Defendants in error finally agreed to assign the note to plaintiff in error, which they did. This took place on Thursday. The following Saturday defendants in error attempted to repudiate the transaction. Plaintiff in error represented Simpson on trial for murder, of which he was found guilty, and at the time of trial had just returned from Austin, where he had presented his case to the Court of Criminal Appeals on appeal from his conviction.

Bud Simpson testified upon trial, in effect, that he was depending upon defendant in error Henry Filgo to secure him an attorney, and that, after he failed to secure the attorney they first had in mind, he did secure plaintiff in error, but that he was not familiar with the details of same. At the time he testified he had been tried on the murder charge, found guilty, and sentenced to the penitentiary for SO years.

After the trial the following facts were shown on motion for new trial by affidavit: Bud Simpson swore that after trial Henry Pilgo called on him and mentioned that he defeated House in the suit. Pilgo said he “hated” to have the suit with House over Simpson’s case, because it was not his intention to beat House out of the fee when he employed him, but that he had expected Clark and Monroe Simpson (brothers of Bud) to pay their part, which they refused to do, and that he was forced to either pay it all or beat House out of it. Pilgo further said that, having given his land note to House, he was compelled to pay it all or beat it all, since House had refused to accept his part of the fee. Pilgo also told Simpson that he had secured 'him another attorney to look after his case.

Judge Mike E. Smith, of Ft. Worth, swore that in the spring of 1912 a negro called upon him to employ him to file a suit to clear some land of a judgment held by a lawyer in Dallas, named House, who the negro said he had employed to defend his brother in law against a charge of murder. He referred the negro to W. J. Van Dorn.

W. J. Van Dorn swore that for two years preceeding November 1, 1912, he practiced law in Pt. Worth, having an office with Judge Mike E. Smith. Late in the afternoon of the day in which the instant case was tried, he was introduced to plaintiff in error. He told plaintiff in error he had heard him trying the case and knew Pilgo, who at the time had been referred to him by Judge Mike E. Smith in reference to engaging Van Dorn’s services. House a^ked him for the details of what took place between him and Pilgo, which he promised to furnish upon consulting his office files. He consulted his, files and found that Pilgo consulted him May 25, 1912, in reference to a judgment which House had abstracted in .Tarrant county at that time against Pilgo for $309.37, and which ran against Pilgo, Clark, Monroe, and Bud Simpson. He agreed to represent Pilgo, who wanted him to go to Dallas that day and see House. Pilgo stated at the time that he had employed House to defend his wife’s brother, agreeing to pay him a fee. of $750, and as part payment had signed a note for $250, together with Clark, Monroe, and Bud Simpson, the balance of $500 to be paid at trial, and that House had sued on the $250 note.. Pilgo also said that, to secure payment of the fee, he had assigned House the note in controversy, but that House would not release the judgment lien filed in Tarrant county until Pilgo paid the Simpson fee in full.

Henry Pilgo, by affidavit, denied the truth of the facts stated in the Smith and Van Dorn affidavits, and inferentially denied the facts sworn to by Bud Simpson.

Did the court err in refusing the plaintiff in error a new trial on the ground of newly discovered evidence? We think not. A motion for a new- trial on the ground of newly discovered evidence is, as a rule, addressed to the sound discretion of the trial judge, both in trials by jury or before the-court, and the action of the trial judge will not be reviewed unless it affirmatively appears he has abused such discretion. Daugherty v. Templeton, 50 Tex. Civ. App. 308, 110 S. W. 556; San Antonio Gas Co. v. Singleton, 24 Tex. Civ. App. 341, 59 S. W. 920. In the case last cited it was said: “ ‘It is incumbent on a party who asks a new trial on the ground of newly discovered evidence to satisfy the court: First, that the evidence has come to his knowledge since the trial; second, that it was not owing to the want of due diligence that it did not come sooner; third, that it is not cumulative; fourth, that it is so material that it would probably produce a different verdict if a new trial were granted.’ Hatchett v. Conner, 30 Tex. 104; Railway Co. v. Forsyth, 49 Tex. 171. Whether the motion for a new trial met the above conditions was one largely addressed to the discretion of the trial judge. ‘It is impossible to prescribe rules which shall afford a certain guide for the determination of every case; and, where the law does not furnish a rule, the application must of necessity be addressed to the discretion of the presiding judge. Having presided at the trial, having seen the witnesses and heard them testify, his means of judging of the correctness of the verdict and” the prqpriéty of granting a new trial are superior to those afforded the appellate court by a mere statement of the evidence in the record. Hence, in revising the judgment of the district court refusing a new trial, it has been the uniform practice of this court not to reverse the judgment, unless it clearly appears that the party applying has brought his application within those rules which entitle him to a new trial as a matter of law. The inquiry has been, not whether, upon the evidence in the record, it apparently might have been proper to grant the application in the particular case, but whether the refusal of it has involved the violation of a clear legal right or a manifest abuse of judicial discretion.’ Abies v. Donley, 8 Tex. 331; Railway Co. v. Marcelles, 59 Tex. 334.”

As applied to the instant case, the rules just quoted are particularly pertinent, since upon trial of the case both sides waived jury trial and requested the trial judge to occupy the dual post of judge and jury, and in considering the application for a new trial the court, beyond doubt, was freer to consider the application from every angle than he would have been in a trial by jury. Occupying such attitude,', and having upon him at trial the duty not only of determining the admissibility of the evidence but as well the credibility of the witnesses, and the weight to be given their testimony, an analysis of the testimony does not, in our opinion, bring the case within either the third or fourth rule stated.

If we consider the affidavit of Bud Simpson (which is objected to on the ground that he is a' convict, his ease having been affirmed, and hence not to be considered, but which point we do not determine), it can do no more than admit in testimony the fact that Filgo confessed that he did assign the note to House in order to secure the payment of the fee that went to pay his attorney for defending him for murder, and which, for obvious reasons, he was deeply interested in. Aside from that fact, there remains the other facts and circumstances and the testimony of the other witnesses directly and inferentially supporting defendants in error’s theory, which cannot be disregarded, and because of which it may not be said that such testimony would probably produce a different verdict upon another trial.

Whait we.have said in reference to the Bud Simpson affidavit applies with equal force to ■thd Ván Dorn affidavit. To hold that either was sufficient upon which to set aside the judgment of the court would be finally to say that, from' the maze of contradictory facts and circumstances adduced upon trial of the case, we are inclined to accept as true those testified to by one side of the contro-, versy, notwithstanding there was sufficient testimony adduced by either side to have sustained a verdict in their favpr. Such a

condition but' accentuates the wisdom and fairness of the rule which permits appellate courts to depend upon the sound discretion of the trial judge in such cases, for the very good reasons stated in the Singleton Case, supra.

The judgment is affirmed.


source: Caselaw Access Project

author: FLY, C. J.

license: Public Domain

text:
    SAN ANTONIO & A. P. RY. CO. v. BRACHT.
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 14, 1914.
    Rehearing Denied Feb. 11, 1914.)
    1. CARRIERS (§ 20) — OVERCHARSE,— ACTION foe Penalty— General Demurrer.
    A petition, in an action against a railroad company by a shipper to recover the penalty for an overcharge, though subject to special-exception for failing to state that the charges were in excess of the rate fixed by the Railroad Commission, was not open to attack by general demurrer, since, every reasonable intendment being in favor of the pleading, and as it stated, though imperfectly, a cause of action for an overcharge, it would be read into the petition that the charge was greater than that fixed by the Commission.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 33-49, 133, 927; Dec. Dig. § 20.]
    2. Teial (§ 105) — Overcharge—Action fob Penalty — Evidence—Failure to Object.
    Where, in an action against a railroad for the penalty for an overcharge, plaintiff was permitted to testify without objection that defendant’s agent told him that $35 was the highest rate permitted by the Railroad Commission, the evidence was sufficient to establish the fact of the rates fixed by the Commission, though not the best evidence thereof.
    [Ed. Note. — For other eases, see Trial, Cent. Dig. §§ 260-266; Dec. Dig. § 105.]
    3. Carriers (§ 20) — Action for Penalty.
    In an action against a ' railroad company for the penalty for an overcharge, it was no defense that the shipper did not pay the charges at the point of shipment, but at another station.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 33-49, 133, 927; Dec. Dig. § 20.)
    4.. Carriers (§ 20) — Overcharge — Action foe Penalty.
    Under Rev. Civ. St. 1911, art. 6671, providing that a railroad may plead as a defense to an action for the penalty for an overcharge that such overcharge was made through a mistake, the burden is upon the railroad company to prove such mistake.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 33-49, 133, 927; Dec. Dig. § 20.]
    Appeal from Aransas County Court; Roy Jackson, Judge.
    Action by A. L. Bracht against the San Antonio & Aransas Pass Railway Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    McDonald, Kleberg & Stayton, of Corpus Christi, and E. Gordon Gibson, of Rockport, for appellant. E. A. Stevens and W. H. Baldwin, both of Rockport, for appellee.

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

   FLY, C. J.

This is a suit for damages against appellant, alleged to. have accrued by delay of a car load of vegetables, shipped from Ingleside, Tex., to Waco, over tlie line of appellant, and further to recover for an overcharge on icing the car and a penalty of $250 for such overcharge. The cause was tried by the court without a jury, and judgment was rendered in favor of appellee for an overcharge of $30 and a penalty of $250.

It was alleged in the petition, as to the overcharge and penalty, as follows: “Plaintiff further alleges that he paid defendant all charges, both for freight and icing said car, before the same left Gregory, Tex.; that defendant wrongfully and knowingly required plaintiff to pay to it the sum of $35 for icing said ear when it reached Waco; that plaintiff paid bo defendant, under protest, at Waco, the sum of $35 claimed by defendant as an icing charge; that said charge of $35 by defendant against plaintiff for icing was a double charge for said icing service, and was extortion by defendant, against plaintiff, whereby plaintiff was damaged by defendant in the sum of $35 actual damages for money actually paid défendant, and plaintiff was further damaged by defendant in the sum of $250 by reason of said unlawful overcharge and extortion as aforesaid.” The $250 was claimed as a penalty by appellee.

No special exception was urged to the allegations in the petition as to the overcharge and penalty. The petition was subject to special exception in not alleging that the charges made were in excess of the legal rate fixed by the Bailroad Commission, but it was not open to attack by general demurrer. When attacked by a general demurrer, every reasonable intendment is indulged in favor of a pleading. A general demurrer will not reach mere formal defects when a cause of action or defense is stated, however imperfectly it may be done. The petition in this case, under the application of the foregoing rules, stated a cause of action for overcharge and the resulting penalty. It will be read into the petition that the charge was greater than that fixed and established by the Railroad Commission.

Appellee testified, without objection, that an agent of appellant at Rockport told him that the sum of $35 was the highest rate permitted by the “Railroad Commission.” The evidence may not have been the best obtainable, but it was sufficient when admitted without objection. If appellant did not wish the fact that a certain rate had been fixed for transporting the goods to be proved by such evidence, it should then and there have interposed an objection. Matlock v. Glover, 63 Tex. 231; Mensing v. Cardwell, 33 Tex. Civ. App. 16, 75 S. W. 347.

The evidence was sufficient to show that the charge for icing the car was paid by appellee to the agent of appellant at Rockport, although shipped from Ingleside. It is not pretended that appellant did not get the money, and it would be quibbling to say that the money should have been paid to the agent at Gregory, and that appellant should be excused because it received the money through the Rockport agent. It did not deny receiving the money, and made no objection to evidence showing that the agent at Rockport had been instructed by the agent at Gregory to collect the $35 from appellee. There was no agent at Ingleside, the station from which the car load of vegetables started on its journey.

The $35 paid to the agent at Rockport was for refrigerating the car, and $30 was collected at Waco for the same refrigeration. The car was not iced again at Waco. The burden rested on appellant to show that the money was collected at Waco by mistake. The law states in plain terms that “such road may plead and prove as a defense to the action for- said penalty that such overcharge was unintentionally and innocently made through a mistake of fact.” Article 6671, Rev. Stats. 1911.

The judgment is affirmed.


author: MOURSUND, J.

text:
    SAN ANTONIO, U. & G. R. CO. v. BOBO.
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 28, 1914.)
    1. Eminent Domain (§ 205)—Condemnation of Right of Wat—Amount of Awabd— Sufficiency of Evidence.
    Evidence, in an action to condemn 5.72 acres of land for a railroad right of way held to sustain a verdict awarding defendant $15O for the land actually taken.
    [Ed. Note.—Eor other eases, see Eminent Domain, Cent. Dig. § 544; Dec. Dig. § 205.]
    2. Eminent Domain (§ 137)—Condemnation of Right of Way—Amount of Awabd.
    Where, in condemnation proceedings, it appeared that two small parcels of land condemned for right of way purposes were farming land and parts of two large tracts, each consisting of both farming land and rough land, and it also appeared that the farming land was worth more if sold in connection with the rough land than if sold separately, defendant was entitled to an award for the land actually taken, on the basis of the higher valuation.
    [Ed. Note.—For other cases, see Eminent Domain, Cent. Dig. §§ 367-369; Dec. Dig. § 137.]
    3. Appeai. and Ebeob (§ 1170)—Haemless Eeeoe—Admission of Evidence.
    Under Court of Civil Appeals rule 62a (149 S. W. x), providing that a judgment shall not be reversed for errors not probably producing an improper judgment, admission of defendant’s testimony in condemnation proceedings, that he would not have the railroad go across his land for $500, was not ground for reversal where it was evident that such opinion related to the damage to the remaining land, and the only complaint on appeal was relative to the award for the land actually taken.
    [Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4032, 4066, 4075, 4098, 4101, 4454, 4540-4545; Dec. Dig. § 1170.]
    4. Eminent Domain (§ 263)—Condemnation of Right of Way—Review—Cobeection of Judgment.
    Where the judgment in condemnation proceedings, instead of describing the land, contains references to the petition for a description thereof, it may be reformed by the, appellate court so as to describe the land as it was described in the petition.
    [Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. § 687; Dec. Dig. § 263.]
    Appeal from Dive Oak County Court; E. H. Church, Judge.
    Condemnation proceedings by the San Antonio, Uvalde & Gulf Railroad Company against W. A. F. Bobo. From a judgment awarding damages to defendant, applicant appeals.
    Reformed and affirmed.
    Dougherty & Dougherty and B. D. Tarl-ton, Jr., all of Beeville, for appellant. W. W. Caves, of Oakville, for appellee.

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

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

   MOURSUND, J.

We adopt appellant’s statement of the nature and result of the suit: “This is an action brought by-the San Antonio, Uvalde & Gulf Railroad Company, applicant, against W. A. F. Bobo for the condemnation of two tracts of land, containing in all 5.72 acres. The purpose for which the land was sought to be condemned is for a right of way necessary for the construction and operation of plaintiff’s line of railroad. Upon a hearing before the commissioners, appointed by the county judge, the applicant was awarded the right of way prayed for, and was assessed the sum of $70 as all the damages due the defendant by reason of the taking and appropriation of the right of way. The defendant in due order filed his objection to the award of the commissioners, and appealed to the county court of Dive Oak county. The case was tried on May 7, 1913, at the regular term of the Dive Oak county court, before a jury, and was submitted upon the single issue of the fair market value of the property taken, and the resulting damages, if any, to the remainder of the property by reason of the construction and operation of the plaintiff’s line of railroad on the tracts sued for; the parties having agreed to every other issue involved. After hearing and considering the evidence and the charge of the court, the jury returned a verdict in favor of the defendant in the sum of $150 as the value of the 5.72 acres actually taken, and for $75 as damages to the remainder of the property, and awarded to the applicant the right of way prayed for.”

By the first assignment appellant contends that the verdict is excessive in so far as it allows Bobo $150 for the land actually taken. The land taken consists of two parcels; one containing 2.06 acres, and the other 3.66 acres. The statement of facts is very unsatisfactory. It is impossible to tell whether some of the statements refer to the entire tracts of land or to the parcels taken for right of way. Portions of the testimony were given with-reference to a map, and by pointing to the map the matter was made plain to th'e jury; but in several instances we can only conjecture what was meant by the witness. Bobo testified that the parcel taken by the railroad out of the upper tract was level farm land, and that “the character and quality of the land where the railroad crosses on the lower tract is a good, level mesquite land, and exclusive of washes.” He also said: “The part taken is a choice part of it, which I only have a part of. It is farming land.” tie testified that the land taken was worth $25 or $30 per acre; also that the actual value of the land taken was $180. 1-Ie also stated: “That land is now worth less to me. It was not for sale before, and is not for sale now. I do not care to sell it. It is not worth $18 per acre now; but I do not care to sell it.” This statement, we think, related to the remaining land, although it is found immediately following a reference to the value of the land taken. One of the tracts owned by Bobo contained 292 acres, the other, 300 acres. Bobo also testified that he supposed 25, per cent, of the land was farming land. Appellant’s witness McMurray testified that the value of farming land in the vicinity of Bobo’s land was $25 or $30 per acre. He had ridden along the side of the north line of Bobo’s upper tract, and said that where the right of way enters said tract it is a black sandy loam. He described the lower tract as “varied,” saying that it contained gullies and hills, and the 320 acres in a body would not be worth much; that the land he saw in the upper tract would be worth $15 or $20 per acre. He said the land on the upper tract along the right of way was better than on the lower tract along the right of way, because the latter was “a .great deal up and down.” He also said: “In answer to question of Mr. Tarlton’s, I stated that I knew the fair market value of farming land, and that it Was worth about $25 or $30 in small parcels; something like $15 taking the tracts as a whole, about $15, as a whole. Taking it in separate parcels, some would be worth more' and some less than $15 per acre. The farm land by itself would be worth more than $15 per acre. There are some 50 or 60 acres of farming land. You can sell it for more than $15 per acre. The farm land by itself would be worth $25 or $30 per acre. The balance would be worth $15. The rough land would not be worth more than $5 per acre. The market value of Mr. Bobo’s land, I would say, is about $15 per acre. I do not know that we could get more for the farm land in spots. The land, as it is, is not worth any less than it was before April 9th, and the fair market value of it is the same.” It will be noted that this witness’ testimony is very unsatisfactory. He jvas never asked the direct question, what each of the two parcels taken for right of way was worth, either considered alone or as a part of the larger tract,' and his testimony does not negative the idea that said land so taken might be worth $150. He testifies that the land is rough where the right of way enters the north tract, but does not say at what point the good land begins. One of appellant’s assistant civil engineers testified that on the north or upper tract a 3-foot cut extends about 125 feet, and from there on a fill of a maximum of 5 feet. This testimony does not disclose what the character of the land is. He described, evidently by pointing out on the map, where the right of way entered the south tract, and said: “Two gullies and rock hillside extend along the side for 800 feet. The grade rises just about one-half foot to the 100 feet. ⅜ * * character of the right of way in the south tract is an embankment. It is about 12 feet high. It is very broken. The next station along there is 10 feet. Then there is á one-foot cut. It is a very mild cut, and extends some 50 feet until it gets to the grade. It is a grade the balance of the way.” The witness did not say the gullies and rock hill were upon the right of way, and it is not reasonable to suppose they were, or even so close as to make it difficult to construct the railroad grade. Railroad companies can better afford to pay for level land than to go to great expense in building their grade. The cuts and fills mentioned are to be expected in the distances of 900 feet and 1,400 or 1,500 feet, and do not negative the idea that the land taken was suitable for agricultural purposes.

The court, as a part of his charge, said: “The court instructs you the fair cash market value of land condemned for a railroad right of way is not the market value of the strip taken when considered by itself, but its value as a part of the tract of which it forms a part.” This statement is based upon the holding in the case of Routh v. Traction Co., 148 S. W. 1152. Said case does not lay down the rule hinted at by appellant, namely: That for the strip taken the damage must be estimated by taking the value of the entire tract, and allowing such proportionate part thereof as the number of acres in the strip bears to the number of acres in the entire tract. The idea underlying all rules for measuring damages is that compensation must be made, and it is frequently discovered that rules which have been equitable and just when applied to a given state of facts fail to accomplish justice when applied to another state of facts. A person whose land is condemned can never be required to take less than the fair cash market value of the portion taken when considered by itself; but in the Routh Case it was seen that, as a narrow strip was taken, which in itself had only a small cash market válue, the allowance of such value would not compensate the owner, and therefore it was deemed just and right that the market value considered as a part of the entire tract should be allowed. If the bodies of farming land owned by appellee were worth $25 to $30 per acre, if sold in connection with the rough land, then, as the right of way, according to appellee’s testimony, was choice farming land, the same should not be taken for less than the farming land would bring as parts of the two tracts. The testimony contradicting appellee on the quality of the land taken, as has been pointed out, was vague and uncertain; but, even if it raised a conflict, the same must be determined in appellee’s favor in deference to the verdict. As to the value, it will be noted that appellant’s witness McMurray admitted that the farm land by itself would be worth $25 or $30 per acre. The sum allowed by the jury is about $26.25 per acre, and, considering that appellee testified that the. right of way took a “choice part,” we cannot say that the verdict is unsupported by the evidence.

What we have said requires the overruling of the second and third assignments, which also relate to the sufficiency of the evidence to sustain the verdict for $150 for the land taken.

By the fourth assignment complaint is made because the court permitted appellee to state that he would not have the railroad go across his land for $500, which statement he modified by stating that he would not have it go across his land for less than said amount, and that he estimated his damages at said sum. No complaint is made that excessive damages were allowed as accruing to the remaining land, and in fact only $75 was allowed, although $500 was prayed for. It is evident that appellee’s opinion related to the damage to the remaining land, which he estimated at the sum mentioned in his petition. As the jury found separately on the value of the land taken and the damage to the remainder, and no complaint is made that the $75 allowed as damages to the remainder is excessive or unsupported by competent evidence, we will not go into the question whether error was committed in the matter complained of by this assignment, as such error, if it be one, was harmless. See rule 62a for Courts of Civil Appeals (149 S. W. x).

The fifth assignment questions the correctness of the court’s ruling in admitting the testimony of witness Stuart in regard to the effect upon cattle of fencing them off from water, but leaving a 30-foot crossing over the right of way. We think the witness had sufficiently qualified to testify regarding the matter; but, as the testimony only affected the question of damages to the remaining land, no harm was done by admitting the evidence, if it was error to do so.

By the sixth assignment complaint is made because the judgment of the trial court fails to describe the parcels of land condemned, but refers to the petition for description thereof. Article 6534 (Statute of 1911) provides that, when the right of way has been acquired, as provided in the articles preceding the same, the judgment of the court shall vest such right in the company so acquiring the same. The judgment complies with the law, unless it he necessary that it contain the description of the land set out in the petition instead of referring thereto. We doubt whether this is necessary, though it is best to do so. Railway v. Knoepfli, 82 Tex. 273, 17 S. W. 1052; Railway v. Moore, 51 Tex. Civ. App. 205, 111 S. W. 758. In this case no motion to reform the judgment in this respect was made; but appellant, in its motion for new trial, merely made the general complaint “that the judgment of the court fails to properly describe the property condemned.” Appellees consenting, the judgment will be reformed by this court so as to describe the parcels of land as they are described in the petition. The costs of the appeal, however, will be adjudged against appellant.

Judgment reformed and affirmed.


author: RAINEY, C. J.

text:
    BUSINESS MEN’S ACCIDENT ASS’N OF TEXAS v. WEBB.
    (Court of Civil Appeals of Texas. Dallas.
    Jan. 17, 1914.
    Rehearing Denied Feb. 14, 1914.)
    1. Insurance (§ 130) — Execution op Contract.
    Where the application under which an accident assessment policy was issued permitted applicant to reject and return the policy, if not satisfactory, a-nd receive back his membership fee, there was no binding contract of insurance, where applicant examined and rejected the policy within the time provided, so that the association was not liable thereon.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 195-202; Dec. Dig. § 130.]
    2. Insurance (§ 141) — Execution op Contract — Estoppel to Deny.
    Where, under a provision of the application that if the certificate of membership issued was not satisfactory, applicant might return it to the association within three days and receive back Ms membership fee, the applicant refused to accept the certificate after examining it, so that the contract never took effect, the association was not estopped from denying liability thereon because it insisted on proof of loss and did not return the membership fee.
    [Ed. Note. — Por other cases, see Insurance, Cent. Dig. §5 75, 253-262; Dec. Dig. § 141.]
    Appeal from District Court, Hill County; Horton B. Porter, Judge.
    Action by Sallie D. Webb against the Business Men’s Accident Association of Texas. Prom a judgment for plaintiff, defendant appeals.
    Reversed and rendered.
    Morrow & Morrow, of Hillsboro, and White, Cartledge & Graves, of Austin, for appellant. Wear & Prazier, of Hillsboro, for appellee.

      For other eases see same topic and section NUMBER in Dee. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

   RAINEY, C. J.

The appellee sued .the appellant to recover the sum of $5,000, alleging that appellant had issued an accident policy for that amount insuring her husband’s, J. C. Webb’s, life, in which she was named the beneficiary; that while in good standing said J. C. Webb was accidentally killed, etc. Appellant answer generally and specially: That J. C. Webb made application in writing for membership, which contained the following provision: “I hereby agree that immediately upon receipt of the certificate of membership issued to me, and a copy of the by-laws of the association, I will examine them, and if satisfactory, retain them; if not satisfactory, I will return them to the association within three days and my membership fee will be returned to me.” Said application was accompanied by $3 as a membership fee. That policy was duly issued with the application attached and forwarded to said Webb, who, within three days, rejected and returned said policy or certificate to appellant, etc. Appellee replied to appellant’s answer: “(1) That defendant was estopped from denying said J. C. Webb’s membership because it was then for the first time asserting such contention, and because it had requested plaintiff to furnish proofs of said Webb’s death. (2) That application not being attached to or contained in the policy, the latter, alone, prescribed the conditions fixing the rights of the parties. (3) The appellant alone, by the terms of its by-laws, had -the right to cancel the membership, and hence said Webb was powerless to do so. (4) Said Webb had not relieved himself of obligations to appellant for the reason that the $3 constituted the entire amount that could have been assessed against him within 60 days after the date of his policy, before the expiration of which period he had been killed.” A trial resulted in a judgment for $5,000 for appellee, from which this appeal is prosecuted.

Appellant complains, in effect, that the judgment is not supported by the evidence. Prom the evidence we conclude appellant is an accident insurance company conducted on the mutual or assessment plan. Its membership fee is $3, which amount pays all assessments that may be levied for 60 days from time of becoming a member. J. O. Webb made application in writing for membership in the associaton, and accompanied it with the membership fee of $3. Said application contained the stipulation, set out above, to the effect that immediately upon the receipt by him of the certificate of membership and a copy of the by-laws of the association he would examine them; if not satisfactory, he would return them to the association within three days, and the membership fee was to be returned to him. The certificate of membership was issued, with his wife, Sallie D. Webb, as beneficiary, and sent to J. C. Webb, who, within three days, returned the same to the association, stating said certificate was not satisfactory. The association then wrote, explaining the terms of the certificate with a view of inducing Webb to accept tbe certificate. Webb declined these overtures, which was communicated to the association on the 10th day of June, 1912. The association had not, up to this time, returned the membership fee, but proposed to do so, in its letter explaining the policy in the event Webb refused to accept the policy. On June 21, 1912, Webb was accidentally shot and died June 30, 1912.

Webb, during his lifetime, never accepted the policy issued by the association, and no contract of insurance between Webb and the appellant was ever consummated. By the terms of the application under which the policy was issued, Webb had the right to reject it, which right was recognized by the association, and, Webb having declined to accept the policy as issued by the association, there was no binding contract; hence the association is not bound thereby.

The appellee insists that the application providing for the return of the membership fee of $3 advanced by Webb not having been returned to Webb by the association, and it insisting on the further perfecting the proofs of loss, the association is estopped from claiming that the policy is not binding. This contention is based on the proposition that, “the evidence does not show that the application made by Webb was a conditional one dependent upon his acceptance of the policy to be tendered, but the positive terms of the policy, by-laws, and the writings entering into the contract show that it was fully completed; that the assured was a member entitled to all the benefits on May 28, 1912.” We do not agree to .this contention. The evidence shows that the policy was issued on the application of J. C, Webb, and that it contained a clause providing for Webb to examine the policy when received, and, if not satisfactory, to return it. By the terms of the application it became a part of the policy, being so made by the policy, which states it was to be a part thereof. See article 1, § 5, of appellant’s by-laws, a copy of which was sent to Webb with the policy. Said provision being a part of the policy, or even if it was not a part of said policy, it was a stipulation inserted by Webb in the application, and the policy being issued in pursuance of said application, it became subject to said stipulation, and Webb had the right to avail himself of it. The association never controverted the right of Webb to claim said right. Webb did assert said right, and acted thereon by declining to accept said policy.

In support of the contention that the contract was completed, appellee, among others, cites a decision of • this court, Ins. Co. v. Jones, 32 Tev. Civ. App. 146, 73 S. W. 978. That ease shows entirely dissimilar facts from this case. There the policy was issued in accord with the application made by Jones, and delivered to him. There was no option retained in the application, and Jones objected, not because the policy was not in compliance with the application, but about the manner of paying premiums, about which he was mistaken. The court held the contract was completed, and could not be canceled without the consent of both parties. In this ease the contract was not completed; Webb declining to accept the policy, as he had the right to do.

There being no valid and existing policy in favor of appellee, it is immaterial what the action of the association was in reference to the proof of loss, she is not entitled to recover.

The judgment is reversed, and here rendered for appellant.


author: HALL, J.

text:
    STALEY v. COLONY UNION GIN CO.
    (Court of Civil Appeals of Texas. Amarillo.
    Jan. 31, 1914.)
    1. Bailment (§ 16) — Conversion by Bailee.
    To constitute a conversion by a bailee, there must be such an intention of deviation from the contract as would be equivalent to an assertion of diminution over the property, inconsistent with the bailor’s right of ownership.
    [Ed. Note. — For other cases, see Bailment, Cent. Dig. §§ 64-74; Dec. Dig. § 16.]
    2. Bailment (§ 33) — Conversion by Bailee.
    An instruction, in an action against a gin company for conversion of cotton, claimed by defendant to have been stolen, requiring it to exercise ordinary care in keeping the cotton and requiring a finding for it, if it did exercise ordinary care in keeping it properly marked and tagged, places a greater burden upon the company than does the law.
    [Ed. Note. — For other cases, see Bailment, Cent. Dig. § 56; Dec. Dig. § 33.]
    3. Appeal and Error (§ 1033) — Harmless Error — Instruction.
    Appellant cannot complain on appeal of an instruction which placed a greater burden on appellee than the law authorized.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4052-4062; Dec. Dig. § 1033.]
    4. Bailment (§ 16) — Conversion by Bailee —Refusal to Deliver.
    A bailee’s refusal to surrender possession of the property on demand is not of itself a conversion, but only evidence thereof, which is open to explanation as by showing that it has been lost without the bafiee’s fault, etc.
    [Ed. Note. — For other cases, see Bailment, Cent. Dig. §§ 64-74; Dec. Dig. § 16.]'
    5. Bailment (§ 31) — Neglisence op Bailee —Theft of Bailed Property.
    Theft of bailed property is not presumptive evidence of the bailee’s negligence, and he is not liable if it was stolen without his fault.
    [Ed. Note. — For other .cases, see Bailment, Cent. Dig. §§ 124-131; Dec. Dig. § 31.]
    6. Appeal and Error (§ 601) — Statement of Facts — Incorporation in Transcript.
    The statement of facts should be.sent up to the Court of Civil Appeals separately, and a copy filed in the office of the county clerk, and should not be incorporated in the transcript.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2651-2653; Dec. Dig. § 601.]

      Appeal from Wilbarger County Court; J. B. Copeland, Judge.
    Action by C. R. Staley against the Colony Union Gin Company, From a judgment for defendant, plaintiff appeals.
    Affirmed.
    Cook & Cook and R. S. Houssels, all Of Vernon, for appellant. Storey & Warlick, of Vernon, for appellee.

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

   HALL, J.

This suit originated in the justice court of Wilbarger county, and was instituted to recover the value of two bales of cotton alleged by appellant to have been converted by appellee. The defendant company answered by general denial, and specially that it was not required to redeliver the cotton which had been left with it for ginning purposes by plaintiff; that after it had received the cotton sued for, it was ginned and delivered to plaintiff on the yard or platform of the gin, which was the full extent of their duty. The answer further alleges that it was the custom to so deliver cotton, and it was not the duty of the company to further protect it after it had been ginned.

The charge of the court is made the basis of the principal errors assigned. The first paragraph of the charge was evidently taken from the case of G., C. & S. F. Ry. Co. v. Humphries, 4 Tex. Civ. App. 333, 23 S. W. 556,' and is to the effect that, in order to constitute a conversion by a bailee, there must be such an intention of deviation from the contract as would be tantamount to an assertion of right of dominion over the property, inconsistent with the bailor’s right of ownership. Appellant insists that there is no question of conversion, either in the pleadings or evidence, and the court has charged upon an issue foreign to the case. As heretofore stated, the suit was for conversion and there is some evidence in the record tending to show that an employs of the company by the name of Mundy had made away with the cotton. This paragraph of the charge was proper.

The second paragraph of the charge refers to the first, and instructs the jury that if they should find from the evidence there was such contract between plaintiff and defendant as set forth in the preceding paragraph, and should find that there was such a deviation from said contract as is set forth in the first paragraph, then to find for plaintiff, unless they should find for defendant under subsequent instructions. The subsequent paragraphs of the charge instruct the jury with reference to the necessity on the part of defendant to exercise ordinary care in keeping the cotton, and further in the third paragraph instructs the jury if it should be found that defendant exercised ordinary diligence in keeping it properly marked and tagged, then to find for defendant. This portion of the charge placed a greater burden upon the appellee than the law would authorize, and therefore cannot be a ground of complaint on the part of appellant.

It is said in 2 Cooley on Torts, p. 872: “The refusal to surrender possession in response to a demand is not of itself a conversion ; it is only evidence of a conversion, and like other inconclusive acts, is open to explanation. It may, for instance, be shown that the property has perished or been lost without the bailee’s fault, and that he does not surrender possession simply because it has become impossible.” Under this rule the appellant certainly did not establish a case of conversion. It is further said in the same paragraph: “Thus in trover for three bales of cotton the plaintiff’s evidence showed that he held and owned certificates for the cotton in the defendant’s warehouse; that the plaintiff’s agent made demand therefor; that at the time of the demand the agent and the defendant searched through the warehouse for it, and did not find it; and that it had not been found or received by the plaintiff. The defendant’s evidence showed that the cotton was not in his possession at the time of the demand or afterwards, and that it had not- been delivered to any one else. This evidence was held insufficient to sustain the action, and the court says: ‘Without pursuing further an examination of authorities, it may safely be said that a mere failure by a bailee, on demand made, to deliver goods which have been intrusted to him, is not a conversion which will support an action of trover, if he sets up no title hostile to or inconsistent with the title of the bailor, or has not appropriated them to his own use, or to the use of a third person, or exercised over them a dominion inconsistent with the bailment. * * ⅜ The failure to deliver, unexplained, raises a presumption of negligence against them, and may involve them in a liability for a breach of the contract of bailment, or for negligence in the performance of the duty springing from the contract, but it is not the conversion.’ * * '* Davis v. Hurt, 114 Ala. 146, 21 South. 468.”

The theory of the appellee in this case is that the property was stolen from its yard after it had been ginned. O. B. Mason, one of the officers of the appellee company, testified that he was familiar with the custom of gins in receiving and delivering cotton, and that after cotton is ginned it is rolled out on the platform, and if the party is not there to receive it, “it is dumped out on the ground”; that the defendant never asserted or claimed any money or benefits for cotton after it had been ginned and left there for some time, and that no storage was ever charged. It further appears from the statement of facts that the appellant was buying a great deal of cotton from this gin and elsewhere, and had wagons engaged to haul it from the gin to the railway station, and must be held to have had knowledge of this custom.

“Theft is not presumptive evidence of the bailee’s want of ordinary care.” Mills v. Galbreth, 47 Me. 320, 74 Am. Dec. 487, and note. “Where the property is stolen the bailee is not liable unless he was guilty of gross negligence in his care of it.” Tancil v. Seaton, 28 Grat. (Va.) 601, 26 Am. Rep. 380; Schmidt v. Blood, 9 Wend. (N. Y.) 268, 24 Am. Dec. 154, and notes. “Proof that the property has been stolen without ordinary neglect on ;the part of the bailee is a good defense for him.” Woodruff v. Painter, 150 Pa. 91, 24 Atl. 621, 16 L. R. A. 451, 30 Am. St. Rep. 786. “A cotton ginner is held only to ordinary diligence and care in the custody of cotton delivered to him to be ginned, and if it was stolen without his fault, it would be an excuse.” Kelton v. Taylor, 11 Lea (Tenn.) 264, 47 Am. Rep. 284.

There being no proof in the record that ap-pellee had converted the property, and the evidence having shown that appellant had stated in the presence of a number of witnesses that he had four bales of cotton moré than he had purchased, and it further appearing that this cotton was handled according to the usual custom and usage of that and other gins, we think no other verdict could have properly been rendered, and the court did not err in overruling the motion for new trial.

We call the attention of counsel to the fact that the statement of facts in this case is incorporated in the transcript. Under the practice now existing, it should have been sent up separately, and a copy filed in the office of the county clerk. Appellant’s assignments of error are subject to the objections urged against them by appellee, but we have waived the objections and overruled appel-lee’s motion to strike out the brief.

The charge of the court upon the question of contract was not warranted by any phase of the pleadings or evidence, but no injury is shown, and in our opinion the appellant has not been injured, and the judgment is affirmed.


text:
    ST. LOUIS S. W. RY. CO. OF TEXAS v. BROWN.
    (Court of Civil Appeals of Texas. Dallas.
    Jan. 24, 1914.
    Rehearing Denied Feb. 14, 1914.)
    1.- Master and Servant (§ 278) — Actions for Injuries — Sufficiency of Evidence.
    In a section foreman’s action for injuries sustained when the ear on which he was working was suddenly started, evidence Mid to show that he was injured by the negligent handling of the train.
    [Ed. Note. — For other eases, see Master and Servant, Cent. Dig. §§ 954, 956-958, 960-969, 971, 972, 977; Dec. Dig. § 278.]
    2. Master and Servant (§ 264) — Actions for Injuries —Issues —Proof and Variance.
    In a section foreman’s action for injuries, a variance between the petition, which alleged that the car from which he was unloading ties was stopped, and then, without warning, started with a sudden jerk, and evidence showing that the train was moving slowly at the time the sudden jerk occurred, was immaterial, and hence instructions to find for defendant, if the train was so moving, were properly refused.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 861-876; Dec. Dig. § 264.]
    3. Trial (§ 260) — Instructions Covered by Other Instructions.
    In a section foreman’s action for injuries caused by starting the car on which he was working with a sudden jerk, instructions that, if the train was slowly moving when it was caused to suddenly and unnecessarily jerk, to find for' defendant, were in effect given in an instruction to find for defendant, if the jury did not believe that the train stopped, and was started suddenly.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.]
    4. Evidence (§ 471) — Facts or Opinions.
    In a section foreman’s action for injuries caused by starting the car on which he was working, without warning, with a sudden jerk, a witness who had worked on the section for 1½ years prior to the injury, and off and on for 32 years in the operative departments, who was evidently accustomed to heeding railroad signals by whistles and otherwise, and who tes-tied that he was not many cars from the engine, was properly permitted to testify that he could have heard the whistle of the engine if it had been blown; this being the statement of a fact rather than an opinion.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2149-2185; Dec. Dig. § 471.]
    5. Damages (§ 166) — Evidence (§ 528*) — Causes of Injury.
    In an action for personal injuries, evidence that a hernia produced by traumatism could have been, and-that the witness expected it was, caused by the injury was properly admitted over the objection that it was remote, prospective, irrelevant, immaterial, and not a subject of expert testimony.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 478, 479, 481; Dee. Dig. § 166; Evidence, Cent. Dig. §§ 2335-2337; Dec. Dig. § 528.]
    6. Damages (§ 143) — Evidence Admissible under Pleadings.
    In an action for personal injuries, where there was evidence that strangulated hernia was not a peculiar hernia or a form thereof, but a condition that sometimes happens with any hernia, evidence as to the possibility of the one in question becoming strangulated was admissible, though there was no allegation of a strangulated hernia.
    , [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 410, 433; Dec. Dig. § 143.]
    7. Damages (§ 166) — Evidence—Effects of Injury.
    It is competent to show the probable occurrence of future ill effects that may arise from an injury.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 478, 479, 481; Dee. Dig. § 166.]
    8. Damages (§ 182) — Evidence—Reduction 0⅞ Damages.
    In an action for personal injuries, in which defendant pleaded that plaintiff was negligent in failing to have proper treatment of his injuries, and to have an operation performed, the testimony of a physician who testified as to the probability of a permanent cure from an operation, and as to the nature of the operation, that the ordinary man was inclined to shrink from an operation, and that every man nearly knows that he is running some risk from an operation, was properly admitted..
    [Ed. Note. — For other cases, see Damages, Oent. Dig. §§ 473, 500; Dec. Dig. § 182.]
    9. Damages (§ 168) — Actions fob Injuries —Evidence.
    In an employe’s action for injuries, where defendant pleaded that plaintiff had engaged in work of various kinds requiring heavy lifting, whereby his injuries were aggravated, plaintiff’s testimony that, though it hurt him to work, he did so because that was the only way he had to make a living was properly admitted.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 480, 482-486; Dec. Dig. § 168.]
    Appeal from District Court, Grayson County; W. M. Peck, Judge.
    Action by Harry Brown against the St. Louis Southwestern Railway Company of Texas. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    E. B. Perkins, of Dallas, and Head, Smith, Maxey & Head, of Sherman, for appellant. Jones & Hassell and E. W. Neagle, all of .Sherman, for appellee.

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

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

   RAINEY, C. J.

Appellee. sued the appellant to recover damages for personal injuries inflicted upon him by the negligent handling of one of its trains; the allegations being, in effect, that while he, as section foreman, was engaged with a crew of men unloading ties along defendant’s right of way from a train moving slowly along, the train stopped, and then, without warning to him, the engineer caused the train to start with a sudden jerk, and he was thrown violently against the end of a tie, which he was attempting to unload, causing a rupture in the lower part of the stomach, etc., injuring him, rendering him unable to perform physical labor, and causing him great mental and •physical pain and suffering. Defendant answered by general denial and special pleas of contributory negligence and assumed risk and negligence in appellee failing to procure proper treatment, and in failing to use proper care for his injuries. A trial resulted in a verdict and judgment for appellee for $2,500, from which this appeal is taken.

We conclude from the evidence that ap-pellee was appellant’s section foreman, and assisting in unloading ties, and was injured by the negligent handling of the train, which is shown by his testimony, which testimony is corroborated by several witnesses, and is as follows: “It was usual and customary for the train to move along slow while we were unloading ties with the train in motion. It was my duty to direct the movement of the train in reference to the unloading of a car •of ties. I had given some directions that morning with reference to the movement of the train. I gave those directions- to the brakeman. He would signal the engineer. The engineer would move the train in reference to signals. * * * The train did come to a stop. When the train stopped it didn’t more than stop until it just reversed and came back. I started after a tie as it stopped, and I caught hold of the tie, and slipped it off, and as I slipped the tie nearly off the pile the train gave a jerk. * * * I got hold of it, and was going toward the door with it, and was going to throw it out while the train was stopped. Having stalled there, I intended having him to stand there a little while; but before I had time to get this tie out, and give them a signal out the door to stand, he just reversed the train and came right back in a hard jerk — just flung the engine right back as quick as he could reverse it, and came back. Not a thing was done by the engineer or any one else in reference to giving signals or warning as to any other movement going to be made of the train after it stopped.” The sudden jar or jerk threw some of the crew against the ap-pellee, knocking him against the end of the tie, causing him to be ruptured.

The first two assignments are grouped. They complain of the refusal to give two special charges -which are in substance the same and that is: The jury are told that, if they believe the train was slowly moving when it was caused to suddenly and unnecessarily jerk, which caused another employs to bump against plaintiff, and knock or throw him against the end of a tie, to find for the defendant, etc.

The theory of appellant, it seems, is that, the allegations of the petition being that the train was standing just before it started with a jerk, and there being one witness who testified that the train was moving slowly when the jerk occurred, a material issue was raised as to that point, which called for the special charge.

Under the court’s charge we do not think appellant was injured by the refusal to give the requested charges, or either of them, for, if all the evidence had shown that the train was slowly moving, as testified to by the one witness, the variance between the allegations and evidence would be immaterial. The gist of the negligence alleged was the sudden jerking of the train. However this may be, the court charged the jury: “If you do not believe from the evidence that said train stopped, and was started suddenly, * * * you will find for the defendant”— which was, in effect, telling the jury that, if they believed the train was moving, to* find for the defendant.

The third assignment is: “The court erred in permitting Ben Benjamin, a witness offered by the plaintiff, to testify, over the objection of the defendant, that the question called for an opinion and conclusion of the witness, and not a statement of facts; to testify that ‘the distance he was from the engine he could have heard the whistle if it had blown.’ ”

The witness Ben Benjamin, one of the section crew, testified: “Under the customary way of doing that work of unloading ties when the train stopped, without any signal from the foreman, the engineer would give a signal with his whistle before he would move the train again. He would give three blasts of the whistle when he was going to back up. When he backed this train up on the occasion I have spoken of, I never heard any signal given. I did not see or hear any signal given. I do not know exactly how far we were from the engine. We were not many cars from it though. I had heard that engine whistle before, time and again; lots of times. Taking the distance I was from the engine, I could have heard it if it had blown. I had worked for Mr. Brown on this section something over 1 ½ years up to the time he was injured.” The witness further testified that he had, off and on, for 32 years been working in the operative departments. He was evidently accustomed to heeding railroad signals by whistles and otherwise, and from his position was qualified to testify as to whether he could have heard the signal had it been given, and we think his evidence in the particular complained of should be regarded as a statement of a fact, and not an opinion, and there was no error in the court in admitting it in evidence. Electric Co. v. Boer, 108 S. W. 199.

The fourth assignment complains of the action of the court in allowing Dr. J. E. Jones, a witness for plaintiff, to testify that “he expected the condition he found plaintiff in must-have been due to the injury he received at the time”; and further to testify that “he thought it possible for such a condition as he found in plaintiff to have been produced by a cross-tie striking him in the lower part of the abdomen, and that hernias produced by violence are ordinarily due to a sudden blow or a sudden strain thrown on the abdominal muscles.”

The fifth assignment complains of the admission of like testimony given by Dr. E. J. Neathery.

The objection to the testimony of both witnesses was that it was too remote, and prospective, irrelevant, and immaterial, and a matter not a subject of expert testimony.

The injury having been produced by trau-matism, it was properly shown by experts that such blow was calculated to produce the result that followed, and there was no error in admitting the testimony. Railway Co. v. Hall, 81 S. W. 571; Railway Co. v. Burnett, 80 Tex. 536, 16 S. W. 320; Railway Co. v. Cherry, 44 Tex. Civ. App. 344, 98 S. W. 898; Railway Co. v. Henefy, 115 S. W. 57.

The sixth assignment of error complains of the court in allowing Dr. J. E. Jones to testify that: “A protrusion of the bowels through the abdominal walls might interfere with the circulation of the contents of the bowels; that, when man eats food, and it goes through the digestive process, in the process of digestion the food is gradually passed through the bowels from the mouth to the stomach, and on into the intestines; that, if the bowel goes through an opening of the character plaintiff had, the effect of that could interfere very materially with the circulation of the contents of the bowels, and, if it is sufficiently tight that the contents will not pass, we call it a strangulated hernia. A strangulated hernia is not a peculiar hernia; it is merely the bowel goes through the opening, and for some reason it gets caught in there, and it is strangulated; there is a possibility of any hernia becoming strangulated. Strangulated hernia is always very serious;. it may kill.”

Similar testimony by Dr. J. H. Glasscock relating to strangulated hernia was admitted over objections.

These witnesses had examined the injury to plaintiff.

The proposition submitted is: “The evidence of the medical witnesses offered by ap-pellee who had examined him should have been confined to a diagnosis and prognosis of the injuries alleged in plaintiff’s petition. There being no allegation of strangulated hernia. in the petition, it was error to permit medical testimony as. to strangulated hernia and the possible results thereof where it existed.” The testimony shows that strangulated hernia, is not a peculiar hernia, but a condition that sometimes happens with any hernia. Dr. Glasscock, after explaining what a natural hernia was, testified: “But this is not that kind of hernia; it is not a natural hernia; it is a hernia in which there has been a spreading of the muscles. The aperture has been made through the muscle, and the bowel has slipped through that aperture. * * * It comes through there, and can be pressed upon and go back; but it is prone to come out again. * * * Now this is just as serious, just as dangerous, because it may become constructed there; may become congested; may be caught there; gases and contents of the bowels may fill it up so you can’t put it back through the aperture.” Strangulated hernia being a condition and not a form of hernia, it was not necessary to. allege it to authorize the admission of evidence in relation thereto, and as it was shown that, with the character of hernia with which appellee was suffering, the bowels were prone to protrude through the aperture and become obstructed or congested, and thereby cause strangulation. It is competent to show the probable occurrence of future ill effects that may arise from an injury. Railway Co. v. Harriett, 80 Tex. 73, 15 S. W. 556.

Appellant’s eighth and ninth assignments complain of the admission of testimony by physicians that the ordinary man is inclined to shrink from an operation, and that every man, nowadays, nearly knows that, when he has to be operated on, he is running some risk; the objection being that it was not a subject of expert testimony, but was an invasion of tbe province of tbe jury.

While 'the ' physicians testified, that the chances were, very good for a permanent cure of this rupture by an operation, it is stated that every case is not successful. Dr. Jones stated: “This operation would involve going into the abdominal cavity in a way. You would have to cut off a portion of the peritoneum. The peritoneum is the covering of the contents of the stomach. * * * I think almost all patients have a dread of an operation of that sort.” No class of persons have a better opportunity of knowing the risk of such an operation than physicians have, or how such an operation is regarded by the ordinary man. It was also shown that the taking of an anaesthetic proved dangerous, and we think it was proper to give their opinion to the jury to rebut the effect the testimony would have that a cure would result from an operation upon the jury that care was not exercised in failing to resort to an operation by the appellee.

Appellant pleaded that appellee was guilty of negligence in failing to have proper treatment of his injuries, and in failing to have an operation performed. We are of the opinion that under the circumstances the evidence was admissible.

The tenth assignment complains of the action of the court in permitting appellee to testify that "the reason he worked, although it hurt him to work, was because he had to do it to make a living, that it was the only way he had to make a living.”

Appellant pleaded that appellee had engaged in work of various kinds, requiring heavy lifting, and that his injuries had been aggravated thereby, etc. This testimony was offered to meet the issue raised by the appellant. While we think it was competent, yet, if not, we think it did not increase the amount of the verdict.

The other and last assignment is that the verdict is excessive. We do not think the verdict shows that it was caused by anything that created prejudice or undue influence in the minds of the jury, and the judgment is affirmed.

Affirmed.