text:
    PLANTERS’ OIL CO. v. KEEBLER.
    (No. 8006.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    July 4, 1914.
    Rehearing Denied Oct. 17, 1914.)
    1. Master and Servant (§ 129) — Injuries to Servant — “Proximate Cause.”
    Where a servant, in -attempting to place a belt on a pulley, high above the floor, had his clothing caught in a protruding set screw, so that he was hurled over the shaft and down upon the floor, the negligence of the master in permitting the existence of the set screw was the proximate cause of the injury; for it could be foreseen that employés would necessarily come close to the screw in replacing the belt on pulleys, and the primary negligence will be considered the proximate cause of the injury, when the injury was the natural and probable result of such primary negligence, even though another cause intervened, where a person of ordinary prudence, under the circumstances, ought reasonably to have foreseen such an injury.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 257-263; Dec. Dig. § 129.

    ■For other definitions,, see Words and Phrases, First and Second Series, Proximate Cause.]
    2. Master and Servant (§ 217) — Injuries to Servant — Assumption of Risk.
    An employé who did not know of the existence of a protruding set screw on the shaft turning the pulley on which he was trying to-replace a belt did not assume the risk of injury from having his clothing catch on the screw, though he brought himself closer to the shaft than necessary.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 574-600; Dec. Dig. § 217.]
    3. Master and Servant (§ 234) — Injuries-to Servant — Contributory Negligence.
    Nor in such case is he guilty of contributory negligence.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 684-686, 706-709; Dec.. Dig. § 234.]
    4. Trial (§ 260) — Instructions—Refusal.
    The -refusal of a charge covered by the-charges giveh is not error.
    [Ed. Note. — For other cases, see Trial, Cent.. Dig. §§ 651-659; Dec. Dig. '§ 260.]

      5. Trial (§ 252) — Instructions—Applicability to Evidence.
    A charge submitting a phase of the case in accordance with the testimony of the injured employs is not inapplicable to the facts because the defendant master offered much evidence in contradiction.
    [Ed. Note. — Eor other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. § 252.]
    6. Tbial (§ 256) — Instructions—Additional Requests.
    In an action by a servant hurt by his clothing catching on a protruding set screw on a shaft, defendant cannot complain of a charge, that defendant was bound to maintain the shaft in a reasonably safe, condition, on the ground that it failed to submit to the jury all the circumstances bearing on how plaintiff’s clothing came in contact with the screw; for, the charge being the correct statement of law, defendant, if desiring amplification, should have requested additional charges.
    [Ed. Note. — Eor other cases, see Trial, Cent. Dig. §§ 628-641; Dec. Dig. § 256.]
    7. Trial (§ 194) — Instructions—Weight of Evidence.
    In an action by a servant hurt when his clothing • caught on a set screw protruding from a rapidly revolving shaft, where the servant testified that he did not know of the existence of the screw because the place was dimly lighted and the shaft in motion, although he had several times replaced belts which had slipped off of pulleys, a charge on contributory negligence which informed the jury that, if the existence of the set' screw was unknown to the servant, and if it was not obvious, then the servant was not negligent in leaning close to the shaft in putting on the belt, is not bad as on the weight of the evidence.
    [Ed. Note. — Eor other cases, see Trial, Cent. Dig. §§ 413, 436, 439-441, 446-454, 456-466; Dec. Dig. § 194.]
    8. Master and Servant (§• 289) — Injuries to Servant — Jury Question.
    In a personal injury action by a servant, whose clothing caught on a projecting set screw on a rapidly revolving shaft, the question whether the servant was guilty of negligence contributing to his injury in leaning close to the shaft, instead of holding to a board so that he could reach out and with one hand replace the belt which had slipped off of a pulley, held, under the evidence, for the jury.
    [Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. §§ 1089, 1090, 1092-1132; Dec. Dig. § 289.]
    Appeal from District Court, Parker County; F. O. MeKinzie', Judge.
    Action by Homer Keebler against the Planters’ Oil Company. From the judgment for plaintiff, defendant appeals.
    Affirmed.
    Stennis & Grindstaff, of Weatherford, and James C. Wilson, Capps, Cantey, Hanger & Short, and David B. Trammell, all of Ft. Worth, for appellant. Hood & Shadle, of Weatherford, for appellee.

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

   DUNKLIN, J.

Homer Keebler instituted this suit against the Planters’ Oil Company to recover damages for personal injuries, and from a judgment in favor of the plaintiff, the defendant has appealed.

Appellee admits the correctness of the following statement of the nature of the suit, as contained in appellant’s brief:

“Appellee, Homer Keebler, while engaged in his duties as ‘night oiler’ in the seedhouse of appellant’s oil mill at Weatherford, Tex., on the morning of January 29, 1913, and while attempting to replace a belt on a line shaft, was injured. He instituted this suit against the appellant, alleging the existence of a set screw or bolt with a square head and square edges in the coupling of the line shaft in appellant’s seedhouse; that the screw extended or projected from the surface of the line shaft and coupling lYs inches, and was extremely dangerous which danger was alleged to be unknown to ap-pellee; and averred negligence in so allowing the set screw to extend and project from the line shaft and coupling in question. It was further avferred that plaintiff was unacquainted with the presence of the set screw.
“The manner in which appellee was injured, as stated in his petition, was as follows: ‘That while, as aforesaid, belting and attempting to belt and put on said belt and to start same on ■ its pulley, as aforesaid, in the usual and customary way and manner, and using the only means provided at that time by defendant company, and using the care and caution of an ordinarily prudent man, plaintiff’s clothing was caught in front by said set screw or bolt, and he was violently and with great force jerked off of said runboard and with terrific force pulled over against said line shaft, pulleys’ belts, and machinery and other material, hurled aloft, and violently thrown down and cast on the floor, rendering him unconscious and almost killing him, he remaining unconscious for quite a while.’
“Appellant was also alleged to be negligent in having a narrow runboard next to the line shaft, on which an employé replacing belts on the pulleys on the line shaft was required to stand; in keeping the runboard unclean, oily, and slippery; in not having a guard or banister between the shaft and runboard; and in not having sufficient lights. The only ground of negligence submitted to the jury as a basis of recovery, however, was that with reference to the set screw.
“Appellant replied with specific denials of appellee’s allegations of negligence, etc., and pleas of contributory negligence and assumed risk.
“The place where the injury occurred was in appellant’s seedhouse, which was approximately 120 by 400 feet in size. The line shaft in question was elevated something like 12 or 13 feet from the floor, and the runboard along same being some 2 or 3 feet lower. The run-board was 7% or 8 inches wide.”

The evidence shows that on the night in controversy the belt connecting the conveyor with the line shaft got off the pulley of the line shaft, and in order to replace it plaintiff ascended to the running board, and while standing on the running board and attempting to replace the belt upon said pulley, he came in contact with the shaft, and was thrown to the floor below, and thereby sustained the injuries for which he recovered damages.

The line shaft runs practically east and west, and the running board was some 22 inches to the south of it. The line shaft was composed of at least two sections, the ends of which were fastened through the means of a coupler, the middle of which coupler was in the form of a disc. From each side of the disc were extensions into which the ends of the line shaft were inserted and held in place by set screws running through the coupler into the line shaft.

The pulley upon which plaintiff was attempting to place the belt at the time of his injury was near one edge of the coupler. The head of the set screw at that edge of the coupler was not sunken to a level of the surrounding surface, but extended above the surface of the coupler to a height estimated by different witnesses from five-eighths of an inch to one and one-eighth inches. The head of the set screw was square, and the distance across it was about five-eighths of an inch. Plaintiff testified that he came in contact with the line shaft while he was “surging to put the belt on,” but further testified that he could not tell how he happened to come in contact with it, except that he was positive that he did not fall against it, and that he was standing on the running board at the time he was attempting to place the belt on the pulley. There was other evidence, however, which we deem it unnecessary to set out, which was sufficient to sustain a finding by the jury that, while plaintiff was attempting to place the belt on the pulley, his clothing was caught by the set screw in the coupler referred to above, and he was thereby hurled aloft and thrown to the floor below. There was also evidence sufficient to sustain a finding by the jury tjiat the defendant was guilty of negligence in failing to so lower the head of the set screw as to render it impossible to catch in the clothing of operatives engaged as the plaintiff was engaged.

By its first assignment appellant insists that the court erred in refusing to give its requested special instruction to the jury to render a verdict in favor of the defendant. By the first proposition submitted under this assignment the contention is made that it clearly appears that:

“Appellee’s becoming overbalanced and falling into the line shaft or jerking himself over on the line shaft in an effort to replace the belt was a proximate and efficient cause of his injury (for which appellant would not be liable), and not the projection or protrusion of the set screw.”

Many authorities are cited to sustain the proposition so advanced, including Tex. & Pac. Ry. Co. v. Bigham, 90 Tex. 223, 38 S. W. 162, which is the leading authority in this state upon the law of proximate cause; also Dayton Lbr. Co. v. Hastings, 152 S. W. 863; So. Kansas Ry. Co. v. Emmett, 139 S. W. 44; C., R. I. & M. Ry. Co. v. Harton, 36 Tex. Civ. App. 475, 81 S. W. 1236; Yecker v. S. A. T. Co., 33 Tex. Civ. App. 239, 76 S. W. 780; A., T. & S. F. Ry. Co. v. Seeger, 44 Tex. Civ. App. 534, 98 S. W. 892; B. E. L. & P. Co. v. Lefevre, 93 Tex. 604, 57 S. W. 640, 49 L. R. A. 771, 77 Am. St. Rep. 898; I. & G. N. Ry. Co. v. Reiden, 48 Tex. Civ. App. 401, 107 S. W. 661; and many decisions from other states. We believe the following is a substantially correct statement of the rule announced in Tex. & Pac. Ry. Co. v. Bigham, supra. Even though there have been intervening agencies | or causes between the primary cause and an injury, yet the primary cause, when amounting to negligence other than a wanton wrong, will be considered the proximate cause of the injury: First, when it appears that the injury was the natural and probable result of such primary cause; and, second, when it can be said that a person of ordinary prudence, in the light of the attending circumstances, ought reasonably to have foreseen an injury of like character as such a consequence. In that case it was held that the negligence of the railway company in maintaining defective fastenings to a gate opening into its stock pens was not the proximate cause of an injury to a shipper who placed his cattle in the pens and was run over by the cattle when they escaped through the gate by reason of such defective fastenings, because such an injury could not reasonably have been anticipated as a result of such negligence.

The ease of Seale v. G., C. & S. F. Ry. Co., 65 Tex. 274, 57 Am. Rep. 602, was a suit by Mrs. Seale for damages for the death of her minor daughter resulting from her clothing catching fire while she, together with her mother, was attempting to extinguish burning grass upon the land of plaintiff near her dwelling and fence. It was alleged that through the negligence of the railway company fire had originated upon its right of way and from there hád spread to plaintiff’s land adjoining the same. In that case our Supreme Court held that the railway company should have anticipated that fire so started would endanger the plaintiff’s property, but that it could not reasonably have anticipated that any one in attempting, even in a careful manner, to extinguish the fire after it had spread upon adjoining property would lose his or her life by clothing catching on fire, and for that reason held that the negligence of the railway company in starting the fire was not the proximate cause of the death of plaintiff’s child.

Dayton Lbr. Go. v. Hastings, supra, was a suit in which damages were ■ sought for an injury sustained by Hastings as a result of his hand coming in contact with one of the saws of the lumber company’s mill. A “slasher chain” had broken, or become unhooked, and had wrapped around one of the sprocket wheels. In pulling at the chain to unwind it from the sprocket, the chain broke, and caused Hastings’ arm to fly back into the saws. The basis of liability was a charge of negligence in maintaining the chain in such a defective condition as to cause it to break under those circumstances. In that case it was held that the negligence, if any, so charged was not the proximate cause of the injury, but the opinion shows that that holding was based upon the conclusion that such an injury could not reasonably have been foreseen as a result of the defects in the chain, and in the course of the opinion the following is said:

“To hold the defendant liable to the plaintiff for the damages sustained by him, we would be required to hold that defendant ought to have reasonably foreseen that the chain would part and become wrapped around the sprocket wheel, that the plaintiff to dislodge it would have to pull upon the broken end, and that, in so doing, the chain would likely again part, and that plaintiff would place himself in such position with reference to the rapidly revolving saws that the sudden parting of the links would cause his arm to fly back against them.”

Likewise, in all the other decisions cited, the negligence charged was held not to be the proximate cause of the injury, because it appeared that the injury could not reasonably have been foreseen as a result of the negligence. Under the rule announced in Ry. v. Bigham, appellant’s contention now under discussion must be overruled, since the evidence was sufficient to sustain a finding by the jury that plaintiff’s injury was the natural and probable consequence of appellant’s negligence in maintaining the set screw at such a height and in such a position as to catch his clothing, and that such a consequence ought reasonably to have been anticipated. The fact that plaintiff jerked himself over in close proximity to the line shaft in an effort to replace the belt was an intervening agency or cause, it is true, but if he was guilty of no negligence in so doing, and if he did not assume such a risk, as was found by the jury, then appellant ought to have foreseen that he might thus come in contact with the set screw in discharging the duties of his employment. Longview Cotton Oil Co. v. Thurmond, 55 Tex. Civ. App. 499, 119 S. W. 130; Bonn v. G., H. & S. A. Ry. Co., 82 S. W. 808.

The evidence shows that there was a board attached to posts and extending above the place where the plaintiff stood at the time he attempted to replace the belt upon the pulley, and that this board was used as a support or brace by some of appellant’s servants who had preceded plaintiff in performing the services which plaintiff was performing at the time of the accident, and, according to a preponderance of the evidence, the board was in easy reach of the plaintiff, and he could have supported himself while attempting to replace the belt by placing his left hand thereupon.

It is insisted that the negligence, if any, in permitting the set screw to protrude above the surrounding surface of the coupler was not the proximate cause of the injury, as defendant could not reasonably have anticipated that plaintiff would voluntarily and knowingly risk injury to himself by failing to support himself by holding with one hand to the brace, while he leaned over the line shaft and exerted his strength to adjust the belt with the other hand, by reason of which position and by reason of a lack of such support of his body, he either fell or was jerked upon and against the line shaft; and furthermore, that as those facts were conclusively proven, it should be held, as a matter of law, that plaintiff assumed the risk of his injury, or else was guilty of negligence proximately contributing to his injury. Plaintiff’s testimony relative to his knowledge of the brace was not very clear. In answer to questions propounded on cross-examination he first said:

“I don’t remember no kind of brace or anything of the kind there. * * * I admit, if I could reach that'brace, if it was there., strong, well-made, a good handhold, just the right distance — that is, the natural distance — I admit [ that would be the proper way to put it on; and I admit that it would be very dangerous for a man to get out here on this plank, and undertake to fool with machinery like that, without any brace, or holding to anything. While I was out there I was touching nothing except this plank with my feet and this belt.”

Upon further interrogation he said:

“I remember plank D shown in picture No. 4. I remember it being there when I was injured. I do not believe that any man could reach that plank and pull that belt on. A man has got to have a long arm to reach back to that plank.”

Picture No. 4, referred to, was introduced in evidence, and plank D shown therein was the brace which other witnesses testified was in easy reach of a person while adjusting the belt upon .the pulley, and that it had been used as a support by other employés performing the service which plaintiff was performing at the time of his injury. But plaintiff further' testified that he did not know of the presence of the set screw in question. As shown by the verdict of the jury when read in the light of the court’s charge, .the set screw caught in plaintiff’s clothing and hurled him to the floor below, and that but for the extension of the set screw above the surrounding surface of the coupler, the accident would not have happened. If he was excusably ignorant of the presence and condition qf the set screw as found by the jury, and which finding is supported by evidence, ■then he did not assume the risk of having his clothing caught by it, nor was he guilty of contributory negligence in filing to avoid contact therewith. See Longview Cotton Oil Co. v. Thurmond, supra; Waggoner v. Porterfield, 55 Tex. Civ. App. 169, 118 S. W. 1094; Galveston Oil Co. v. Thompson, 76 Tex. 235, 13 S. W. 60. And if he did not assume such risk, and if he was exercising ordinary care for his safety at the time of the accident, then it cannot, be said that defendant could not reasonably have foreseen that he might come in contact with the set screw while attempting to replace the belt upon the pulley.

Complaint is made of the refusal of special charge No. 2 requested by .the defendant, which is, in' effect, that if at the time of plaintiff’s accident he was standing with his right foot on the running board and his left foot across the line shaft near the coupling, and that while in that position his clothing was caught on the set screw and he was injured, in consequence thereof, and that a person of ordinary prudence would not have taken such, a position, then a verdict should be returned in'favor of the defendant. The assignment complaining of the refusal of this instruction is overruled, for the reason that the trial court gave another special instruction requested by the defendant upon the same issue and substantially to the same effect.

Error has been assigned to the following paragraph in the court’s charge to the jury:

“If you believe and find from the evidence in this cause that the agents of defendant, who were in charge of the oil mill at the time of the injury in' question, permitted the set screw, resting in the coupling of the line shaft connected with the machinery in defendant’s said mill in which plaintiff was employed, to protrude outward and beyond the surface of said coupling and line shaft, and near the place where the plaintiff was required to go and be, in the course of his duties, and if you believe from the evidence that the defendant’s agent or agents in charge of said mill were guilty of negligence in permitting said set screw to so be and remain, if such be the fact, and that, while plaintiff was attempting to place a belt on a pulley on said line shaft, his clothing was caught by said set screw, and thereby caused him to receive the injuries complained of, and if you further find from the evidence that his injuries were the direct, and proximate result of such negligence, if any, and if plaintiff is not precluded from a recovery by subsequent instructions given you herewith, then you will find for the plaintiff.”

By one proposition submitted under this assignment it is insisted that the charge was inapplicable to the facts of- the case and misleading, because it was conclusively shown that plaintiff could not have come in contact with the set screw or the line shaft without first falling or jerking himself from the running board and on to the line shaft. This contention must be overruled, because plaintiff testified that he did not fall or jerk himself from the running board on to the line shaft, and other evidence was introduced which warranted a finding by the jury that he was jerked from the running board by having his clothing caught upon the set screw. Another objection to the charge is that the evidence conclusively shows that the negligence, if any, in permitting the set screw to extend above the coupling was not the proximate cause of plaintiff’s injury, but that the proximate cause of the injury was his falling or jerking himself from the running board on to the line shaft. This objection is overruled for the reasons already noted.

Error has been assigned to the following instruction given by the trial court:

“(2) In determining: whether defendant’s agents in charge of said mill at the time were guilty of negligence in respect to the matters submitted to you in the foregoing section of this charge, you are instructed that it was the duty of defendant’s agents in charge of said mill to exercise ordinary care to inspect, keep, and maintain its said line shaft and coupling and set screw thereto attached in a reasonably safe condition, failing which the defendant and its agents in charge would be guilty of negligence.”

The objection to that charge is that it was “calculated to lead the jury to believe that appellant would be required to exercise ordinary care to inspect, keep, and maintain the line shaft, coupling, and set screw in a reasonably safe condition, irrespective of whether or not appellant’s servants in the ordinary performance of their duties would be required to bring their clothing or body in contact with such set screw, and irrespective of the question whether or not appellant or its agents, in the exercise of ordinary care, would have foreseen or anticipated such contingencies.” In determining whether or not the defendant exercised ordinary care in the matters stated, it was the duty of the jury to consider all the facts and circumstances in evidence bearing upon that issue, including the probability of plaintiff’s clothing coming in contact with the set screw. The charge was a correct statement of the law, and if appellant desired an amplification of the instruction upon -that issue, it should have requested an instruction to that effect.

Error has been assigned to the following instruction given by the court:

“(6a) If you believe from the evidence that, as plaintiff stood in attempting to place the belt on the pulley, on the occasion in question, there was a plank or board in easy convenient reach above the line shaft, by which he could have steadied or supported himself with one hand while he put on the belt with the other, and if the plaintiff did not hold to said plank, while attempting to put on the belt at the time he claims to have been injured, but assumed some other position, and if, you believe the plaintiff, in so attempting to put on the belt by not holding to said board or plank, failed to use o_r-dinary_ care, and that such want of ordinary care, if any there was, was the proximate cause of plaintiff’s injury, or proximately contributed thereto; you will find for the defendant. But in this connection you are instructed that, if you believe from the evidence that the set screw in question, at the time, did project beyond the surface of the coupling on the shaft, and was in a dangerous condition, yet if the plaintiff did not know of the set screw, or in the course of his duties must not have known of same, or if the same was not obvious—that is, open to the observation of a person of ordinary prudence under like circumstances and conditions—then the plaintiff, in selecting a method of putting on the belt, would not be held to the duty of taking into consideration the set screw in question, and if you so believe you will not attribute to plaintiff notice of the existence or danger of the set screw, if it was dangerous, in determining the question of plaintiff’s want of ordinary care, as submitted to you in this paragraph of this charge.”

The latter portion of the instruction beginning with “but in this connection you are instructed” is criticized’ as being, upon the weight of the evidence, to appellant’s prejudice and an undue limitation upon its defense of contributory negligence, since it was clearly shown that a more safe method of performing the service could have been adopted by the plaintiff, in that he could' have supported himself by holding to the brace. We are of the opinion that these criticisms are without merit. Plaintiff testified positively that he did not know of the presence of the set screw, and, by way of excuse for not having observed it, testified that on the occasion of the accident, and upon all prior occasions when he was performing the same service, the machinery was in operation with the line shaft revolving, and that the place in which he was working was dimly lighted. In passing upon the issue of plaintiff's contributory negligence it was proper for the jury to take into consideration those facts which were specially pleaded by the plaintiff as an excuse for his lack of knowledge of the set screw, and we are of the opinion that there was no error in the instruction.

The same paragraph of the charge is further criticized for submitting as a disputed issue whether or not the negligence, if any, of the plaintiff in failing to support himself by holding to the board or plank contributed to his injury. As noted already, the jury found that the cause of the injury was the catching of plaintiff’s clothing in the set screw. We think that, under the evidence, it was, at all events, • a disputed issue whether or not, if plaintiff had held to the brace with his left hand, while attempting to adjust the belt, he would not have come in contact with the set screw, or if his clothing was caught on' the set screw, that he could have successfully resisted being thrown to the floor below. Accordingly, .this contention is overruled.

Special charges Nos. S and 9 reguested by appellant, and upon the refusal of which two other assignments are predicated, on the issue of plaintiff’s contributory negligence in failing to support himself by holding to the brace while attempting to replace the belt, were substantially covered by the instruction given by the court and last quoted.

The judgment is affirmed.

SPEER, J., not sitting.


source: Caselaw Access Project

author: DUNKLIN, J.

license: Public Domain

text:
    FT. WORTH & D. C. RY. CO. v. BERRY.
    (No. 8004.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    June 20, 1914.)
    1. Caeriers (§ 228) — Injury to Shipment op Live Stock — Presumptions.
    Where live stock sustains injuries while being transported with ordinary care and reasonable diligence, it will be presumed that such injuries were caused solely by the inherent nature or proper vice of the animals, and not by any negligence of the carrier.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 957-960; Dec. Dig. § 228.]
    2. Carriers (§ 205) — Injury to Shipment op Live Stock — Negligence—Liability.
    A carrier, not being an insurer of a shipment of live stock against increased risks nee-' essary to the transportation, is not liable, unless negligent, for injuries to the stock.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 918, 920, 923; Dec. Dig. § 205.]
    3. Carriers (§ 215) — Injury to Shipment op Live Stock — Instructions.
    In an action for injuries to cattle unloaded by the owner at a dipping station pursuant to the shipment contract, and held for 14 days, an instruction, authorizing the jury to find for plaintiff for injuries from delay during transportation, including the time they were thus unloaded, was erroneous.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 923; Dec. Dig. § 215.]
    4. Trial (§ 219) — Instructions — Definition op Terms.
    Where, in an action for injuries to a shipment of live stock, the court instructs that the defendant is not liable for injuries due to the inherent vice of the animals, the meaning of the term “inherent vice” should be stated to the jury.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 489; Dec. Dig. § 219.]
    5. Trial (§ 252) — Submission op Issues— Evidence.
    In an action for injuries to a shipment of cattle, it was error to submit to the jury the issue whether defendant’s negligence contributed to the injury sustained by the cattle as the result of being dipped at a quarantine station, where there was no evidence bearing on such issue.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. § 252.]
    Appeal from District Court, Tarrant County; J. W. Swayne, Judge.
    Action by J. H. Berry against the Ft. Worth & Denver City Railway Company. From judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    W. H. Francis and Thompson & Barwise, all of Ft. Worth, for appellant. H. D. Payne, of Ft. Worth, for appellee.

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

   DUNKLIN, J.

The Ft. Worth & Denver City Railway Company has appealed from a judgment rendered against it in favor of J. H. Berry for $726 as damages to a shipment of cattle from Ft. Worth to Amarillo. The suit was predicated upon allegations of rough handling and unreasonable delay in the shipment, all of which was alleged to be negligence, and that by reason of such negligence the cattle were bruised, skinned, cripr pled, and lost weight, and some of them were caused to die. The cattle were shipped from Ft. Worth to Amarillo under a contract allowing the owner the privilege of stopping them at Chillicothe for the purpose of having them dipped, in accordance with the governmental quarantine regulations. When the cattle reached Chillicothe they were unloaded and held at that place for 14 days and were dipped three times, several days intervening between the respective dippings. They were then reloaded on defendant’s cars, carried to Amarillo, and there delivered to the plaintiff. None of the cattle in controversy died in transit, but all were delivered alive. They were delayed in reaching Amarillo approximately 12 hours on account of the wreck of a part of the train in which they were being shipped, which occurred about four miles south of Amarillo. The plaintiff accompanied the cattle in transit, and was present with them at the time of the wreck. There was no evidence tending to show any delay chargeable to the defendant in the shipment between Et. Worth and Amarillo, except that caused by the .wreck and noted already, nor was there any evidence tending to show injury to the cattle while in transit, except «such as was alleged to have been occasioned by reason of the wreck. In the wreck the cars in which the cattle were transported were not thrown from the track, and it does not appear that the cars themselves sustained any damage by reason of the wreck. According to testimony offered by the defendant the cars in which the cattle were transported were not shaken or jarred by the accident to any appreciable extent, and that the cattle suffered no injury by .reason of the wreck. But according to the testimony of the plaintiff the jar to the cars caused the cattle to be thrown against and on top of each other and to be thereby bruised and skinned and seriously injured, from which injuries so sustained several of them died after they were delivered to the plaintiff, while the market value of others that did not die was greatly depreciated by reason of such injuries.

The court instructed the jury in part as follows:

“ (S) I charge you that it is the duty of a railway company carrying live stock to receive, ship, and deliver them to the place of destination in as good condition as when received, less the natural shrinkage of cattle, when properly transported, and the inherent vice in the animal, if any.
“(4) If the animal has an inherent vice, and through the acts of the defendant while it has it in its possession the inherent vice is magnified or caused to make the animal suffer more and become of /less value, then the defendant would be liable for that part of it which was the result of its negligence, if any, as that term is herein defined.
“(5) Under the pleadings in this case I limit your consideration to 269 head of cattle.
“(6) Applying the foregoing definitions to the facts of this case, I charge you that if you believe from a preponderance of the evidence, that plaintiff did deliver to the defendant his cattle for shipment in good condition for shipment from Ft. Worth, Tex., to Amarillo, Tex., with privilege of dipping at Chillieothe, and that the cattle while in the possession of the defendant were in a wreck or derailment, and that the defendant delivered the cattle at Amarillo, Tex., in an injured condition, then the defendant would be liable to the plaintiff for his damages as hereinafter directed, unless the injuries to said cattle, if any, were the result of the inherent vice in the animal, or that the injuries, if any, were caused by the dipping of the said cattle.
“(7) If the dipping of the cattle caused their injury, if any, then the defendant would not be liable therefor, unless its negligence, if any, as that term is herein defined, caused or contributed to said injury, in which event it would be responsible for all damages done thereby which would not have occurred but for the said negligence, if any, on its part.
“(8) The natural loss of weight or decrease of the animal, if any, will not be taken into consideration by you in estimating the damages, in this case, if any.
“(9) The term ‘negligence’ as used in this charge means the doing of an act that an ordinarily prudent man would not do under the same or similar circumstances, or the failure as to an act which an ordinarily prudent man ' would do under the same or similar eircum-sta.nc6S
“(10) If you find for the plaintiff under the foregoing instructions, you will assess his damages at such sum of money as the difference in the market value of the cattle, if any, at Amarillo, Tex., on June 23, 1912, in the condition in which they were delivered to the plaintiff, and what they would have been worth on that date and that place had they been delivered in good condition, less the usual and natural shrinkage, and less an injury to them, if any, done by the dipping independent of any act of negligence, if any, of the defendant.”

Whether or not the defendant company is liable for the depreciation in the market value of the cattle, irrespective of the question of its negligence vel non in their transportation, is the principal question presented by several assignments of error addressed to the instructions quoted.

In G., C. & S. F. Ry. Co. v. Trawick, 68 Tex. 314, 4 S. W. 567, 2 Am. St. Rep. 494, the railway company sought by a contract with a shipper of cattle to place various limitations upon its liability for the shipment, and in that case our Supreme Court used the following language:

“Under the statute of this state, a railway company must receive and transport live animals as other property, and, after receiving, it becomes an insurer of them, as in the case of other property which it is bound to transport, against loss from any cause except the act of God, or of the public enemy, the act of the owner, vicious propensities, or inherent character, or, as it is sometimes termed, the ‘proper vice’ of the animals. This is the liability imposed upon the common carrier by the common law, and the statute declares that the ‘liabilities of carriers in this state shall be the same as prescribed by the common law.’ Rev. Stats. 277. Such being ‘their liability as it exists at common law,’ the declaration of the statute that they ‘shall not limit or restrict their liability as it exists at common- law in any manner whatever,’ and that ‘no special agreement made in contravention of the foregoing provisions of this article shall be valid,’ deprives such carriers of the right to limit their liability by contract, even as to matters in reference to which they might legally contract under the common law.”

The case of G., C. & S. F. Ry. Co. v. Levi, 76 Tex. 337, 13 S. W. 191, 8 L. R. A. 323, 18 Am. St. Rep. 45, was a suit for damages resulting from delay in transporting a ear of lemons, and in that suit Judge Stay ton, who also rendered the decision in the Trawick Case, supra, in discussing the common-law liability of a carrier, used the following language:

“For failure to carry and deliver, the carrier cannot excuse himself by reason of the fact that, through human agency not under his control, this was prevented without fault on his part; but if the property be wholly lost or partially decayed through some inherent quality, without fault on the part of the carrier, this will excuse the failure safely to carry and deliver, for the operation of the laws of nature working destruction or loss furnish the same excuse as do tempest, lightning, or other cause termed ‘the act of God. ”

Following that language are quotations from Lord Mansfield in Forward v. Pittard, 1 Term Reports, 27, and Chief Justice Best in Railway v. Horne, 5 Bingham, 550, giving the reasons for the common-law rule of liability of common carriers, the reasons in both quotations being, substantially, that it was to prevent collusion between the carrier and third persons to appropriate the goods and for the purpose of relieving the shipper of the necessity of going into circumstances impossible for him to unravel to show the cause of the loss of the goods. Following those .quotations our Supreme Court continues as follows:

“The same reasons do not apply when the thing is actually transported and delivered, although when delivered it may be greatly diminished in value by a fall in the market price, or its value partially or entirely destroyed by reason of its inherent perishable nature which has worked its partial or entire destruction while in transit.
“The rule is thus stated by a recent text-writer, in accordance with the views expressed by many others: ‘But the reasons upon which the extraordinary responsibility of the common carrier for the safety of the goods is founded do not require that the same responsibility should be extended to the time occupied in their transportation. The danger of loss by robbery or embezzlement or theft by collusion and fraud on his part has no application when the mere time of the carriage is concerned. “His first duty,” it is said, “is to carry the goods safely, and the second to deliver them; and it would be very hard to oblige the carrier, in case of any obstruction, to risk the safety of the goods in order to prevent delay. His duty is to deliver the goods ‘within a reasonable time,’ which is a term implied by the law in the contract to deliver, as Tindal, C. J., puts it when he says, ‘the duty to deliver within a reasonable time being merely a term ingrafted by legal implication upon the promise or duty to deliver generally.’ In this respect, therefore, the common carrier stands upon the same ground with other bailees, and may excuse delay in delivery of goods by accident or misfortune, although not inevitable or produced by the act of God. All that can be required of him in such an emergency is that he shall exercise due care and diligence to guard against the delay, and that if it occur without his fault or negligence, he shall omit no reasonable efforts to secure the safety of the goods.” ’ Hutch, on Oarr. § 330. See, also, §§ 331-35, 292. * * * ”
Continuing our Supreme Court said:
“To the extent the fruit may have deteriorated on account of its perishing nature while in transit, the facts pleaded would furnish a defense if defendant bestowed upon it proper care; for in such ease such a loss would be attributed solely to the decay, which the answer excuses.”

It will be noted that in the decision last quoted damages to the goods resulting from delay in shipment was the only basis for the recovery sought. To the same effect is G., C. & S. F. Ry. Co. v. Gatewood, 79 Tex. 89, 14 S. W. 913, 10 L. R. A. 419; I. & G. N. Ry. Co. v. Hynes, 3 Tex. Civ. App. 20, 21 S. W. 622; Sterling v. St. L., I. M. & S. Ry. Co., 38 Tex. Civ. App. 451, 86 S. W. 655.

In G., C. & S. F. Ry. Co. v. Ellison, 70 Tex. 491, 7 S. W. 785, which was a suit to recover damages for injuries to cattle resulting from the failure of the railway company to transport them within a reasonable time, and also from rough handling, our Supreme Court said:

“Although the appellant may not have contracted to transport the cattle on a train devoted to that purpose exclusively, or to transport them at any given rate of speed, yet it was its duty to transport them with all reasonable dispatch, having in view the character of the freight and its liability to injury from long detention on the cars; and facts tending to show that this was not done were admissible.
“A witness, in explaining how the cattle were injured, stated that ‘the jerking in starting and stopping so often would throw said cattle off their feet,- and in consequence they were crippled and bruised.’ It was further shown that the manner of starting and stopping the train was rough, and that from this injury resulted. In the transportation of cattle or any other freight it is the duty of a railway company so to manage its cars as to protect it, as far as this can be done by the use of proper care, from injury, and if it fails to do so it is liable.”
In Elliott on Railroads it is said:
“It is not, perhaps, strictly correct to say that the rule that the carrier is not liable for injuries resulting from the inherent nature or propensities of the stock is an exception to the common-law rule governing the liability of common carriers, for this was the rule at common law respecting other kinds of property, as well as with respect to.live stock and was frequently applied to shipments of fruit and other perishable articles. But whether it should be treated as an exception to the general rule or not, it is well settled that, although insurers in other respects to the same extent as at common law in the carriage of goods, railroad companies are not liable as insurers for losses and injuries caused to live stock by the inherent nature and propensities of the animals.” 4 Elliott on Railroads, § 1546.

In T. & N. O. Ry. Oo. v. Drahn, 157 S. W. 283, it was said:

“The contract of a common carrier with a shipper of commodities (article 731, R. S. 1911) is ‘for the safe and speedy’ transportation thereof from point of shipment to destination, not for the exercise of ordinary care to deliver the property.”

That announcement, however, was not necessary to an affirmance of the judgment, for in a preceding part of the opinion, the following occurs:

“The'pleading and evidence show a contract for through shipment, a delivery of the cattle in an uninjured condition, and a redelivery at final destination with many of the animals dead and the others severely injured. No one accompanied the cattle for the shipper. Under these circumstances there arises a presumption of negligence on the part of the carrier which, in the absence of any explanation whatever, becomes conclusive. F. W. & D. C. Ry. Co. v. Shanley, 36 Tex. Civ. App. 291, 81 S. W. 1014, and authorities there cited. So that if in every shipping case where live stock are involved negligence must be shown the rule is met in this ease.”

In the following cases it was held that the carrier of live stock is not responsible for any injuries thereto except those occasioned by its negligence: St. L. & S. W. Ry. Co. v. Lewellen, 116 S. W. 116; Freeman v. Cain, 133 S. W. 894; St. L. & S. W. Ry. Co. v. Smith, 33 Tex. Civ. App. 520, 77 S. W. 28; F. W. & D. C. Ry. Co. v. Lock, 30 Tex. Civ. App. 426, 70 S. W. 457; Tex. Cent. R. R. Co. v. Hunter, 104 S. W. 1075; T. & P. Ry. Co. v. Snyder, 86 S. W. 1041; T. & P. Ry. Co. v. Stewart, 52 Tex. Civ. App. 514, 114 S. W. 413.

In Tex. Cen. R. R. Co. v. Watson, 54 Tex. Civ. App. 509, 118 S. W. 175, it was held that the railway company was liable for such injuries' only to a shipment of household goods as resulted from its negligence in handling them.

In Waggoner v. M., K. & T. Ry. Co. (Cr. App.) 92 S. W. 1028, it was held that negligence is the test of liability of a common carrier for damages resulting to shipments both of live stock and dead freight.

The contract of shipment necessarily contemplated that the cattle would be taken from their accustomed range and confined in cars where, even though handled with all possible care, they would be subjected to some jolting and jarring, fright and excitement, by reason of their changed surroundings, more danger of injuring each other, and with more limited access to feed and water, all of which changes naturally tended to a deterioration in their condition. In determining whether or not their injuries during shipment were due to the inherent nature or proper vice of the animals, these changed conditions must be taken into consideration, for necessarily the injuries from the inherent nature of the animals would be greater during shipment than upon their accustomed range. It would be unreasonable to hold the carrier as an insurer against these increased risks which were made absolutely necessary in order to transport the cattle, and the 'reasons upon which the common-law rule is based do not require it. In order to determine whether injuries sustained resulted from their inherent nature, the manner of their transportation must necessarily be considered. If they were transported with ordinary care and with reasonable diligence, then the injuries sustained would be attributed solely to the inherent nature or proper vice of the animals, which, under the common-law rule for the shipment of either live stock or inanimate freight, would not be chargeable to the carrier. See G., C. & 'S. E. Ry. Co. v. Levi, supra.

It follows from the foregoing conclusions that the issue of negligence was necessarily involved, and that in the absence of any negligence on the part of the railroad company in the transportation of the cattle, it would not be liable for the damages sought Indeed, plaintiff! seemed to recognize the necessity of showing negligence, in that he expressly alleged that the delay and rough handling of the cattle constituted negligence, and that such negligence was the proximate cause of the injuries to the cattle.

We have been cited to no evidence in the record tending to explain the cause of the wreck referred to, and in the absence of any explanation tending to show that it did not happen through any negligence of the defendant, it might be argued that negligence in not avoiding the wreck and the delay caused thereby could be presumed, and that, in so far as damages for injuries resulted from the wreck and the delay caused thereby, the charge shows no reversible error, since the court could have peremptorily instructed the jury to find that the injuries so caused were due to defendant’s negligence. Cleburne St. Ry. Co. v. Barnes (No. 7995) 168 S. W. 991, by this court and not yet officially reported; T. & N. O. Ry. Co. v. Drahn, supra.

Even if this view should be adopted, it-would not relieve other errors in the charge. As noted already, there was a delay of approximately 12 hours by reason of the wreck, and plaintiff introduced testimony tending to. show, as alleged in his petition, that such a delay did cause injury to the cattle. If that be true, as the jury would have been authorized to find under the evidence, then under the charge they would have been authorized to find, further, that the delay of 14 days in Chillicothe, when the cattle were not even in the possession of the defendant, also caused injury to them, and under the charge they would have been warranted in assessing damages against the defendant for injuries caused by that delay also. Eor the reasons noted the charge quoted was erroneous, and for such error the judgment must be reversed.

In view of other assignments we deem it proper to suggest that upon another trial some explanation should be given to the jury of what is meant by “inherent vice” of the cattle, as without such explanation, it is not probable that the jury would understand the legal significance of that expression.

We are of the opinion, further, that there was error in the instruction submitting as an issue whether or not the negligence of the defendant contributed to the injury sustained by the cattle as a result of dipping, since we have found no evidence in the record bearing upon that issue. The several special requested instructions of appellant, and on the refusal of which several assignments aré predicated, seem to have been substantially covered in the main charge.

For the errors indicated, the judgment is reversed, and the cause remanded.

SPEER, J., not sitting.


author: CARL, J.

text:
    AMERICAN MFG. CO. v. SKIDMORE DRUG & FURNITURE CO.
    (No. 5328.)
    (Court of Civil Appeals of Texas. San Antonio.
    Oct. 21, 1914.)
    1. Commerce (§ 49) — “Interstate Commerce” —What Constitutes.
    Where plaintiff sold defendant an automobile and advertising material and tickets for a contest intended to develop defendant’s business, the order being sent to plaintiff’s place of business in a foreign state and there filled, the sale was interstate commerce, notwithstanding plaintiff agreed to send a man to assist defendant in starting and carrying on the contest.
    [Ed. Note. — For other cases, see Commerce, Cent. Dig. §§ 29, 30; Dec. Dig. § 40.

    For other definitions, see Words and Phrases, First and Second Series, Interstate Commerce.J
    2. OommeRCe (§ 40) — '“Interstate Commerce” —What Constitutes.
    That a foreign corporation sends its agents into the state to solicit orders does not cause sales made by such corporation, where consummated outside of the state, to lose their standing as interstate commerce.
    [Ed. Note. — For other cases, see Commerce, Cent. Dig. §§ 29, 30; Dec. Dig. § 40.]
    Appeal from Bee County Court; T. M. Cox, Judge.
    Action by the .American Manufacturing Company against the Skidmore Drug & Furniture Company, a copartnership. From a judgment for defendant, plaintiff appeals.
    Reversed and remanded.
    H. Snodgrass, of Beeville, for appellant. B. D. Tarlton, Jr., and H. S. Bonham, both of Beeville, for appellee.

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

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

   CARL, J.

Appellant, American Manufacturing Company, sued Skidmore Drug & Furniture Company, a firm composed of R. W. Sparks and J. W. Mayo, appellees, on six notes signed by appellee on August 1, 1912, and payable to the order of appellant; four of said notes being each for the sum of $150, and due respectively in two, three, four, and five months after their date, and the other two each being for the sum of $200, and due in six and seven months from their dates. These notes were executed and delivered in pursuance of, and are the same notes referred to in, the contract between the parties, which follows:

American Manufacturing Company, Incorporated.
Chicago, Ill. Lexington, Tenn.
Automobile Advertising Order.
This order consists of the following: 1 Howard Roadster, described' on reverse side. One book, “How to Successfully Conduct the Contest and How to Increase Your Business.” 3,000 circulars. 20 posters. 350 nomination letters. 350 follow-up letters. 1000 $5.00 trading books. 1 set display card signs. 10 42-piéce dinner sets. 1,000 contestant’s post cards. 1 voting register. 50 bulletins. 1 electro plate of automobile. 45,000 certificates in three colors for automobile votes in denominations of: Five cents; ten cents; twenty-five cents; fifty cents; one dollar; five dollars; ten dollars; twenty-five dollars; fifty dollars; hundred dollars.
Price . $1,100 00
Less allowance for settlement with order. 100 00
$1,000 00
P. O. Skidmore, State, Texas.

American Manufacturing Company, Chicago, Ill., Lexington, Tenn. — Gentlemen: Please reserve and ship to us at your earliest convenience, f. o. b. factory, your automobile, 10 dinner sets and advertising matter, described on this and reverse side, in payment for which we hereby hand you our six notes for $1,000.00, payable to your order. Our. last twelve months sales were $12,000. Our next twelve months sales are to be $20,000. If this order is not approved the notes are to be cancelled and returned to us. If 5 per cent, of our gross sales for the next twelve months does not amount to one thousand dollars ($1,000.00), you will pay us the deficiency in cash, at the rate of 13% cents on each dollar you fall short and send us your bond for $1,000.00 to cover this agreement with us. To make this last above clause binding upon you we agree to take the shipments promptly, carry out the coaiest plan, promptly meet all obligations entered into under this agreement, keep the automobile well displayed in our place of business, issue automobile votes for each cent purchased and every sixty days of this contest to report to you our gross sales, for one year and promptly furnish you all information you request to enable you to assist in pushing the contest. In consideration of the special methods, set forth in your copyrighted plan and the terms and agreements herein, this order cannot be countermanded. The title to automobile to remain in vendor until fully paid. Any verbal or written agreement not embraced herein will not be recognized and is not binding on vendor.

Date for closing contest, Feb. 1st, 1913.
(Date for closing contest must be given.)
[Signed]
Skidmore Drug & Furniture Co., Purchaser.
By J. W. Mayo.
Town: Skidmore.
County: Bee.
State: Texas.
Freight Station: Skidmore.
Express Office: Skidmore.
[Seal] Salesman, C. W. Falvey.
Date 7/2, 1912.

The specifications for the material, etc., of the automobile were also set out, but we do not consider that as having any bearing on this ease, and therefore omit the same.

Appellee set up a plea, among other defenses, that the plaintiff is a foreign corporation, with its principal office at Lexington, in the state of Tennessee, and has not complied with the laws of the state of Texas by filing a copy of its charter in the office of the secretary of the state of Texas and obtaining a permit to do business in Texas, and cannot, for that reason, maintain a suit in the courts of this state. It is also pleaded, on behalf of the appellee that the transaction does not constitute interstate commerce. Fraud, misrepresentation, and breach of the contract are charged against appellant, and it is claimed that the agent, who obtained the contract and notes, represented that appellant would furnish a man to help appellees work up interest in the contest and supervise the same, but which was not done, and that a bond was given by appellant that it would guarantee certain sales by the time the contest ended, which was February 1, 1913. After a hearing on the special plea as to the right of the corporation to maintain the suit, the court sustained said plea and dismissed the suit. From that order, this appeal is prosecuted.

The facts show that appellant is a private Tennessee corporation, and has not a permit to do business in Texas. The contract was introduced in evidence, and in addition thereto R. W. Sparks and J1. W. Mayo were permitted to testify substantially to tile following facts: That they are partners composing the SIddmore Drug & Furniture Company; that J. W. Mayo signed the contract, herein-above set out, on behalf of the firm and in the firm name, and also the notes. The main purpose of the contract was to be an advertising feature, in which an automobile, which appellant was to furnish, was to be given away, and, by the publicity of such a contest for the automobile, appellees expected to increase their sales of merchandise. With each purchase, the customer would get a certain number of tickets or votes for the car. They say the agent, O. W. Falvey, agreed to come and help carry on the advertising campaign, but that he did not do so, except to come and stay about 30 minutes in looking over the automobile, because they had complained that it was not up to the standard of the specifications. Falvey did not return any more. They say that Falvey told them that the company would co-operate with them at all times and assist in carrying out the contest ; that they would have some little trade books, and would go out into the country and sell these books, would take advertising matter and- aid in advertising the contest; and that there would be a man regularly to help conduct the contest, and he would come about once a month. The advertising matter came when the automobile arrived, and was purchased at the time the car was bought. In fact, car and advertising matter were all shipped, under the terms of the contract, from the state of Tennessee.

Appellant wrote appellee on August 15, 1912:

“We have your letter of the 12th stating that your automobile had arrived and to send a man to start your contest. We are glad that same has arrived, and we have written Mr. O. W. Falvey, who will spend Sunday at Victoria, Texas, c/o Denver Hotel, to be sure to call on you and start your contest, and you will no doubt, hear from him in the next few days as to when he will arrive. Hoping that your contest will be a howling success and assuring you that we will be glad to co-operate with you from time to time in regard to same we are, “Yours truly,
“American Manufacturing Co.,
“Geo. H. Partin, Pres.”

Again, on October 14, 1912, appellant wrote appellee:

“Replying to your letter regarding the contest, beg to state that we are glad that it is getting along nicely. We have written one of our men to call and see you the next time he was in that territory. You will no doubt see Mr. C. W. Falvey, of Lufkin, Texas. Hoping the contest will get along nicely, we are, yours very truly.”

As usual, the contest was not a success; hence the suit.

The sole question before this court is as to whether the above facts show that appellant was doing business in this state, within the purview of the statute. We hold that appellant was not doing business in this state, but that this was clearly an interstate commerce transaction. This case is not similar to S. R. Smythe Co. v. Ft. Worth Glass & Sand Co., 105 Tex. 8,142 S. W. 1157, for in that case the subject-matter or consideration of the contract was the erection by the foreign corporation of certain improvements in the city of Ft. Worth, Tex. The part of Smythe & Co. was entirely to be performed' in Texas and took a considerable time. In the case at bar, the letter which constitutes the contract was addressed to appellant in Tennessee and was there filled, f. o. b. factory. Everything called for in the contract was shipped from that state, and, when, that was done, the transaction was complete. It was performed, not in Texas, but in the state of Tennessee.

But it is insisted that, because appellant was to send a man to assist in the contest,' that constituted performing the contract in Texas. We do not think so, because the contract was complete when the order was filled, and that was done in Tennessee. In speaking of incidental agreements to furnish a man to superintend in installing machinery, etc., Mr. Justice Moursund said in A. Leschen & Sons Rope Co. v. Moser, 159 S. W. 1025:

“The contract did not provide for the sale and delivery of a tramway after its completion, nor did it. call for the sale of a tramway delivered with an agreement to install the. same, but it was merely proposed to furnish a competent superintendent in order to facilitate the erection of the machinery by Moser and make proper adjustments thereof. We do not think this incidental agreement can be given the effect of making the transaction one not involving interstate commerce. To so hold would mean that a corporation in another state would have to forego sales in such state of machinery to be erected in this state, if the purchaser refused to buy, unless the corporation furnished a capable man to supervise the erection and adjustment of the machinery, or else it would have to secure a permit to do business in this state. We hold that appellants are entitled to maintain their suit. Flint & Walling Mfg. Co. v. McDonald, 21 S. D. 526, 114 N. W. 684, 14 L. R. A. (N. S.) 673, 130 Am. St. Rep. 735; Milam Mill Co. v. Gorten, 93 Tenn. 590, 27 S. W. 971, 26 L. R. A. 135; Smythe Co. v. Ft. Worth Glass & Sand Co. [105 Tex. 8] 142 S. W. 1160.”

There are many cases sustaining the holding here made by us, but we do not care to inc-umber the record by setting them out.

A foreign corporation is not prevented by our statutes from sending its representatives into this state to solicit orders, and the fact that such is done does not cause such transactions to lose their standing as interstate commerce. Miller et al. v. Goodman, 91 Tex. 41, 40 S. W. 718; De Witt v. Berger Mfg. Co., 81 S. W. 335; Barnhard Bros. &/ Spindler v. Morrison, 87 S. W. 378; Brown v. Guarantee Savings, Loan & Investment Co., 46 Tex. Civ. App. 295, 102 S. W. 138; Lasater v. Purcell Mill & Elevator Co., 22 Tex. Civ. App. 33, 54 S. W. 425; Pasteur Vaccine Co. v. Burkey, 22 Tex. Civ. App. 232, 54 S. W. 804; Woessner v. H. T. Cottam & Co., 19 Tex. Civ. App. 611, 47 S. W. 678.

The question of failure of consideration. either in whole or in part, is not before us now.

In view of the foregoing, the judgment will be reversed, and the cause remanded for another trial.


text:
    SECURITY LIFE INS. CO. OF AMERICA v. ALLEN.
    (No. 8008.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    June 27, 1914.
    Rehearing Denied Oct. 24, 1914.)
    1. Evidence (§ 441) — Parol Evidence — Written Contract — Notes.
    In an action on a premium note, parol evidence of an agreement between defendant and plaintiff’s general agent that defendant should not be called upon to pay the note if he would help the agent secure other insurance, which defendant did, was objectionable as contradicting the terms oí the note.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1719, 1723-1763, 1765-1845, 2030-2047; Dec. Dig. § 441.}
    2. Insurance (§ 184) — Lue Policy — Premiums — N otes — Rebate.
    Where defendant executed a note for the first premium on a life policy issued to him, an agreement between defendant and the agent securing the policy that defendant should not be asked to pay the note if he would help the agent obtain other insurance, which he did, amounted to a contract to pay or allow a rebate on defendant^ policy in violation of Rev. St. 1911, art. 4954, and constituted no defense to the note.
    [Ed. Note. — For other cases, see Insurance, ■Dee. Dig. § 184.]
    3. Insurance (§ 188) — Notes for Premiums — Defenses — Fraud — Misrepresentation of Facts — Contractual Agreement.
    Where an insurance agent, after writing a policy on defendant’s life, agreed with him that he should not be called on to pay a note executed by defendant for the first premium in case he would assist the agent in writing other insurance, which he did, such agreement was contractual, and not a misrepresentation of fact, and was not therefore sufficient to sustain a defense that the note was obtained by fraud.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 245, 402-407; Dec. Dig. § 1S8.J
    Appeal from Mitchell County Court; A. J. Coe, Judge.
    Action by the Security life Insurance Company of America against Y. W. Allen. Judgment for defendant, and plaintiff appeals.
    Reversed and rendered.
    Royall G. Smith, of Colorado, Tex., for appellant. Shepherd & Sandusky, of Colorado, Tex., for appellee.

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

   DUNKLIN, J.

The Security Life Insurance Company of America instituted this suit against Y. W. Allen upon a promissory note executed by the defendant in favor of the plaintiff dated April 12, 1911, due December 1, 1911, in payment of the first premium upon a policy issued to the defendant by the plaintiff dated May 19, 1911, and from a judgment denying plaintiff any relief it has appealed.

In his answer the defendant alleged that the note was given as the first premium on a life insurance policy issued by the plaintiff to him; that he was induced to execute the note byL. M. Generes, plaintiff’s general agent in Texas for soliciting life insurance, who promised and agreed with him at the time of such execution that the note would be canceled and returned to the defendant if defendant would thereafter aid said agent in procuring other life, insurance from other people, which defendant agreed to do, and that the note was to become a valid and binding obligation in the event only defendant should fail to perform that agreement; that, acting under said agreement, defendant did procure other persons to take out insurance with said general agent to the amount of $85,000; that defendant would not have consented to take the policy and execute the note but for such representations and promises by Generes which amounted to misrepresentations and fraud rendering the note of no binding effect.

Defendant further alleged that during the first of December, 1911, he notified plaintiff of such agreement with Generes, and that by reason of the same he did not expect to pay the note, and thereupon plaintiff canceled the policy which had been issued to him. Defendant further alleged that the agreement of the general agent to cancel and return the note to the defendant “was in law an offer to pay, allow, and give indirectly to defendant as an inducement to insurance a rebate of the first premium on said policy, and that such offer of rebate was in direct violation of the Penal Code of this state; that, such offer of rebate so being in violation of the law of the state of Texas, the contract was and is in violation of the law and is void. * * * ” For further answer the defendant alleged that, under and by virtue of the contract between plaintiff and its said general agent, the latter was entitled to receive 75 per cent, of the first premium on the policy issued to the defendant, and that by reason thereof, and by reason of the agreement of Generes to cancel and return the note, as above noted, the plaintiff is not, at all events, entitled to recover more than 25 per cent, of the note. It was further alleged that the right and title of Generes to 75 per cent, of said note was adjudicated in a certain suit entitled “L. M. Generes v. Security Life Insurance Company of America,” which was determined in the district court of Dallas county, and later determined upon appeal by the Court of Civil Appeals. The trial was by the court without the aid of a jury, and the following are his findings of fact and conclusions of law:

“Findings of Fact.
“I. I find the Security Life Insurance Company has its business domicile in Chicago, in the state of Illinois, and was doing business under a certificate from the bureau of insurance in the state of Texas.
“II. I find that L. M. Generes was the general agent of Security Rife Insurance Company.
“III. I find that on or about April 12, 1911, said L. M. Generes, general agent for said company, came to the town of Colorado, Tex., for the purpose of writing life insurance, and made the acquaintance of V. W. Allen, the defendant in this ease, and that, after making the acquaintance of said Y. W. Allen, he represented to defendant, Allen, that if he would lend him his co-operation assisting him in writing business that he would write in said company the policy of insurance on the life of Allen for the sum of $10,000, and that the first premium of $387.20 would not have to be paid by said Allen, and the note given by said Allen for said first payment would be returned to him.
“IV. I find that the defendant, Allen, complied with his agreement with Generes and introduced him to parties upon whose lives insurance was written by said Generes, and that said Allen worked with the general agent, Gen-eres, and helped him to write business in Mitchell and adjoining counties by speaking to his friends and in behalf of the Security Life Insurance Company' and of its general agent.
“V. I find that applications for life insurance were secured through the assistance of V. W. Allen on the lives of S. P. Singleton, R. H. Looney, Jr., - Wilson, Goss, Fullilove, Warren, and 'others, to the amount of $85,000, and that it was on securing the writing of this business that Generes assured the defendant, Allen, that he would not have to pay his note.
“VI. I find that defendant, Allen, induced by the representations of the general agent, Gene-res, that his note for the first premium would be returned to him, agreed to take out a policy of insurance in Security Life Insurance Company for $10,000 and executed his note, payable to Security Life Insurance Company, for the sum of $387.20, dated the 12th day of April, 1911, and due on the 1st day of December, 1911, with interest at 5 per cent, per annum from maturity until paid with 10 per cent, attorney’s fees.
“VII. I find that a policy of insurance was issued to V. W. Allen for the sum of $10,000, in consideration of the note executed by said Allen, and said policy was canceled by the company, because the insured failed to pay the second payment on said policy.
“VIH. I find that a contract existed between L. M. Generes and the insurance company, wherein were contained certain limitations upon the authority of said Generes in writing policies, but that all such limitations and prohibitions were unknown to V. W. Allen, and that said Allen would not have executed said note to the plaintiff if he had not been induced to do so by the representations of the general agent, Generes, and that he, Allen, first knew of his alleged indebtedness to the company in December, 1911, when he received a letter from the insurance company that they were seeking to hold him on his note, at which time Allen promptly informed the company of his understanding with Generes.
“IX. I find that said Generes offered to rebate said Allen to the amount of the first premium on said policy, and said Allen agreed to accept said rebate, and the offer, of such rebate was the inducement to said Allen to take out insurance in said company.
“X. I find that all notes taken by general agent, Generes, who was the sole agent for said company in Texas, were to be forwarded to the company until the delivery of the policjq and when the policy was so delivered then the notes were to be returned to the said agent, Generes, to be collected and the net sent to the company.
“XI. I find that the net due the company at the time of writing the insurance for Allen was the sum of 25 per cent, of the amount in said first premium note (if such first premium note was a binding obligation on Allen).
“XII. I find that by virtue of a certain judgment of the Court of Civil Appeals of the Fifth Supreme Judicial District of Texas, affirming and reforming a judgment of the district court of Dallas county, Tex., the said court adjudged, in a certain cross-action by Security Life Insurance Company v. L. M. Generes, that said Generes go hence without day, and specifically held that Generes might have his cause of action hereafter against said insurance company on all notes held by them for first premium on policies written by Generes.
“From the foregoing findings of fact I have arrived at the following:
“Conclusions of Law.
"I. I conclude that L. M. Generes, general agent for effecting insurance on behalf of Security Life Insurance Company, had full power to act for said company, and that the acts and representations which he made to Allen were those which an ordinary person might expect of him and that he would be authorized to do or make on behalf of his principal, and that such representations were calculated to impose upon a careful and prudent man.
“II. I conclude that the limitations placed upon the authority of L. M. Generes by his principal in the certain contract did not bind V. W. Allen, with whom he dealt, for the reason that defendant Allen had no knowledge of such limitations upon the authority of said L. M. Generes.
“III. I conclude that the representations of Generes to Allen at the time Allen executed the note constituted a fraud upon said Allen; by which the note for the first payment was secured.
“IV. I conclude that the agreement by said L. M. Generes, general agent, to return Allen his note and cancel the note was an offer to pay, allow, and give indirectly to defendant, Allen, as an inducement to insurance, a rebate of the first premium on said policy.
“V. I conclude by such offer to pay, allow, and give a rebate would render the policy, and did render the policy void.
“VI. I conclude that, under the terms of the contract between Allen and Generes and the Security Life Insurance Company, that on all first payment premium notes defendant Generes, had an interest of 75 per cent, thereof, and the company had an interest of 25 per cent., and if allowed to recover anything, could not recover but 25 per cent, of the note herein sued on.
“VII. I conclude that the plaintiff ought not to recover of the defendant in its action herein, and that defendant, Allen, go hence without day and recover his costs in this behalf incurred.”

Error has been assigned to the admission of the testimony of the defendant and of L.

M. Generes to prove the agreement alleged in the defendant’s answer that the note sued on should be discharged in consideration that the defendant should assist Generes in procuring other insurance.' The testimony of those two witnesses constitutes the only evidence offered to prove such agreement and is, substantially, that the agreement was made as alleged in the answer and as found by the trial judge.

The plaintiff objected to the testimony on several grounds, one of which was that its effect would be to vary by parol evidence the terms of the note. We are of the opinion that the court erred in overruling this objection.

Furthermore, the agreement was in direct violation of article 4954 of the Revised Civil Statutes 1911, and was on that account void, and constituted no defense to the note.

The agreement did not constitute any misrepresentation of fact, but was contractual, and therefore did not furnish a proper basis for the conclusion of the trial judge that the note in controversy was procured by fraud, and was therefore void.

For the reasons noted, the judgment is reversed, and judgment is here rendered in favor of appellant for the amount shown to be due upon the note alleged in his petition.

SPEER, J., not sitting.


author: KEY, C. J.

text:
    INTERNATIONAL & G. N. RY. CO. v. FELDMAN.
    (No. 5388.)
    (Court of Civil Appeals of Texas. Austin.
    Oct. 21, 1914.)
    1. Courts (§ 121) — Jurisdiction—“Amount in Controversy” — Interest.
    Where plaintiff sued in the county court for the killing of a horse of the value of $200, and prayed for judgment for $200, with interest from the date of the killing, the interest to the commencement of the suit constituted a part of the damages; and hence the amount in controversy exceeded $200, and was within the court’s jurisdiction.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 413-426, 428, 450, 452, 458, 459, 406; Dec. Dig. § 121.

    For other definitions, see Words and Phrases, First and Second Series, Amount in Controversy.]
    2. Appeal and Error (§ 501) — Exceptions— Necessity.
    Under Rev. St. 1911, art. 2061, as amended hy Acts 33d Leg. c. 59 (Vernon’s Say les’ Ann. Civ. St. 1914, art. 2061), providing' that the court’s ruling in giving, refusing, or qualifying instructions to the jury shall be regarded as approved, unless excepted to as previously provided, the court’s refusal to instruct a verdict for defendant is not reviewable, where the record does not show, that an exception was taken thereto at the trial.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2300-2305; Dec. Dig. § 501.]
    Appeal from Falls County Oourt; W. E. Hunnieutt, Judge.
    Action by F. H. Feldman against tbe international & Great Northern Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Neff & Taylor, of Waco, for appellant. T. B. Bartlett and Spivey, Bartlett & Garter, all of Marlin, for appellee.

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

   KEY, C. J.

Appellee sued appellant in the county court for damages alleged to have resulted from the negligent killing by appellant of a horse belonging to appellee, and from a judgment rendered in appellee’s favor, appellant has appealed.

Appellant’s brief presents but two questions which are: (1) That, as the amount in controversy does not exceed $200, the county court had no jurisdiction; and (2) that error was committed in not instructing a verdict for appellant.

1. As to the first question, appellee alleged in his petition that the horse was killed on or about the 24th day of September, 1912, that it was of the value of $200; and prayed for judgment for $200, with interest thereon at the rate of 6 per cent, per annum from September 24, 1912, and costs of suit; and the suit was commenced January 13,1913. The 6 per cent, on the $200 was not recoverable as interest eo nomine, but was recoverable as part of the damages;, and, as it amounted to over $3, we hold that the amount in controversy as disclosed by the plaintiff’s petition was more than $200, exclusive of inr terest. In other words, what the petition denominated interest was not interest in fact, as our Supreme Court has repeatedly held, but was recoverable as damages. Schulz v. Tessman, 92 Tex. 488, 49 S. W. 1031, and cases there cited,’ and Railway v. Mathews, 169 S. W. 1052, recently decided by this court, and not yet officially reported. Hence we overrule appellant’s contention, and hold that the county court had jurisdiction.

2. Appellant’s second contention is overruled because the record does not show that appellant excepted to the court’s refusal to instruct a verdict as requested. In amending the statute regulating court procedure the Thirty-Third Legislature changed article 2061 so that it now reads as follows:

“The ruling of the court in giving, refusing or qualifying of instructions to the jury shall be regarded as approved unless excepted to as provided for in the foregoing articles.”

That article of the statute was construed by the Seventh Court of Civil Appeals in Mutual Life Insurance Association v. Rhoderick, 164 S. W. 1067, and by this court in G., C. & S. F. Ry. Co. v. Battle, 169 S. W. 1048, not yet officially reported, both courts holding that in cases tried after the amended article took effect no complaint can be urged against the action of the trial court in giving or refusing to give instructions, unless an exception be reserved to such action of that court. We are satisfied of the correctness of the rulings referred to, and deem it unnecessary to add anything to what has been said in the two cases cited.

Judgment affirmed.


author: CONNER, C. J.

text:
    WEATHERFORD, M. W. & N. W. RY. CO. v. SMITH.
    (No. 8007.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    June 27, 1914.
    Rehearing Denied Oct. 17, 1914.)
    1. Appeal and Error (§ 215) — Presentation of Grounds of Review in Court Below — Necessity.
    Assignments of error based on the giving and refusing of charges cannot be considered, where appellant did not make objections and reserve exceptions at trial in accordance with Act March 29, 1913 (Acts 33d Leg. c. 59 [Vernon’s Sayles’ Ann. Oiv. St. 1914, arts. 1984a, 1954, 1970, 1971, 1973, 1974, 2061]).
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 1309-1314; Dee. Dig. § 215.*]
    2. Appeal and Erkob (§ 544*) — Record— Necessity op Bill op Exceptions.
    Under rule 55 for the district and county caurts (142 S. W. xxi), providing that rulings on applications for continuance and other incidental motions and upon the admission or rejection of evidence, when complained of as erroneous, must be presented in the bill of exceptions, a party complaining of the refusal of the court to appoint a commission of disinterested physicians to examine plaintiff in a personal injury action must present the error by bill of exceptions; for the matter is not one which would be embraced in the record proper, nor does it relate to the charges which, under rule 54 (142 S. W. xxi), are made part of the record.
    [Ed, Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2412-2415, 2417-2420, 2422-2426, 2428, 2478, 2479; Dec. Dig. § 544.*]
    3. CARRIERS (§ 320*) — Carriage op Passengers — Actions—Jury .Question.
    Where plaintiff, who claimed that his arm was hurt by the falling of a car window, testified that he- examined the window and found it defective, verdict cannot be directed for defendant on the ground that the claim that the window was defective was contrary to the physical facts because defendant’s inspectors and servants testified the window was in good order.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1118, 1126, 1149, 1153, 1160, 1167, 1179, 1190, 1217, 1233, 1244, 1248, 1315-1325; Dec. Dig. § 320.*]
    Appeal from District Court, Parker County; F. O. McKinzie, Judge.
    Action by E. B. Smith against the Weath-erford, Mineral Wells & Northwestern Railway Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    H. C. Shropshire, of Weatherford, for appellant. Hood & Shadle, of Weatherford, for appellee.

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

   CONNER, C. J.

We adopt the following statement of the nature and result of this case as given by appellant:

“Appellee, E. B. Smith, sued appellant in the district court of Parker county, Tex., on the 10th day of February, A. D. 1913, to recover damages for injuries alleged to have been sustained by him while a passenger on one of appellant’s trains en route from Mineral Wells to Weatherford, Tex. Among other things, he alleges that on or about the 11th day of March, A. D. 1912, he boarded said passenger train at Mineral Wells, Tex., about 2 o’clock p. m. of that date; that he went into a coach and took a seat on the south side of the train next to an open window of said coach, said window and sash being up at the time; that he immediately laid his right arm and elbow on said window sill to steady himself while said train was moving and for convenience and comfort; that after said train had run some six miles said window and sash fell with much force, striking his said arm about the point of the elbow, seriously and permanently injuring his arm, as follows: That the bones of said arm at said place were mashed and injured and fractured; that the muscles were mashed and bruised, and said arm was blackened and discolored; that the nerves, tendons, and leaders at said place were mashed, bruised, separated, and mashed into and ruined; that by reason thereof plaintiff had practically lost the use of the said right arm and hand; that he has lost the use, strength, and grip of his right hand; that by reason thereof his right arm and hand are perishing away; that it is cold and had the feeling of a leg or arm spoken of as being asleep; that said arm pains appellee very much and prevents him from sleeping at night; that he has suffered greatly from same both mentally and physically and will continue to so suffer in the future; that the said arm is permanently injured and ruined, and is growing worse, and will continue to grow worse, and the same is practically useless to plaintiff; that the said fall of said window and sash at said time and place was due to and caused by the imperfect condition of the said window fasteners and by the way and manner in which same were fastened and constructed; that the said fastenings of said window at said time were imperfect and wholly insufficient for said purpose and were dangerous; that they were improperly constructed, were worn, insufficient, out of order, and any unusual move, creak, or jerk of the train would cause said window and sash to fall; that said window and sash and the fastenings at ■ said time were not secure and were dangerous; a more detailed description of said imperfect condition of said .window and sash and fastenings cannot be given by plaintiff ; all of which was known to defendant before his said arm was hit; that appellee sustained damages in the sum of $15,000.
“Thereafter in due time appellant filed its answer in said court, in which it denied each and singular all the allegations set up in ap-pellee’s petition, and alleged that plaintiff was guilty 'of contributory negligence in voluntarily and unnecessarily taking a seat by said open window in the manner by him alleged in detail; and that he was further guilty of negligence which contributed to his injury in that he failed, neglected, and refused to have his arm and injuries properly treated by a competent physician until many months after said injuries occurred and until said injuries thereby were rendered more serious than they otherwise would have been, etc.
“The ease was tried before a jury on the 28th day of October, 1913, and said jury returned a verdict for appellee in the sum of $500.
“Thereafter, on the 19th day of November, 1913, appellant presented to said court its motion for a new trial, which motion was by the court overruled, and notice of appeal within terms of law was then and there given by appellant.
“Thereafter, on the 11th day of December, 1913, appellant filed with the clerk of said court its appeal bond within terms of law, and this case is now presented to this honorable court for revision and consideration upon the following assignments of error.” '

The first five assignments of error question the action of the court in giving and refusing charges. But these assignments cannot be considered, as was conceded in behalf of appellant on the submission, for the reason that the proper objections and exceptions were not made on the trial as required by the act approved March 29, 1913. Gen. Laws 1913, p. 113 (Vernon’s Sayles’ Aun. Oiv. St. 1914, arts. 1984a, 1954, 1970, 1971, 1973, 1974, 2061); Heath v. Huffhines, No. 7936,168 S. W. 974, by this court, and not yet published; Mut. Life Ins. Oo. v. Rhoderick, 164 S. W. 1067; St. L. & S. W. Ry. Oo. of Texas v. Wadsaek, 166 S. W. 42.

In the seventh assignment of error complaint is made of the action of the court in overruling appellant’s “second motion and request of this defendant made while plaintiff was on the stand testifying in his own behalf to appoint a committee composed of three disinterested practicing physicians to examine plaintiff’s arm and hand with the view and for the purpose of ascertaining the truth as to the present condition of plaintiff’s arm and hand and the true extent of the injury, if any, thereto.” The motion was in writing, and recited that it was made after the plaintiff had voluntarily exhibited his hand and arm to the jury, and the-rule invoked is that declared by this court in the able opinion of Associate Justice Stephens in the case of C., R. I. & T. Ry. Co. v. Langston, 19 Tex. Civ. App. 568, 47 S. W. 1027. The entire action, however, is only evidenced by the written motion and the order of the court entered upon the minutes declaring that the motion had been considered and overruled, and that appellant excepted. Rules 53, 54, and 55 governing proceedings in the district and county courts, read:

“53. There shall be no bills of exception taken to the judgments of the court, rendered upon those matters, which, at common law, constitute the record proper in the case, as the citation, petition, answer, and their supplements and amendments, and motions for a new trial, or in arrest of judgment, and final judgment.
“54. The charges of the court that are given, and those asked that are refused, when signed by the judge and filed by the clerk, being made thereby a part of the record by statute, should not, in civil cases, be made a parti of a bill of exceptions.
“55. The rulings of the court upon applications for continuance and for change of venue, and other incidental motions, and upon the admission or rejection of evidence, and upon other proceedings in the case not embraced in the two preceding rules, when sought to be complained of as erroneous, must be presented in a bill of exceptions, signed by the judge and filed by the clerk, or otherwise made according to the statute, and they will thereby become a part of the record of the cause, and not otherwise.” 142 S. W. xxi.

The proceeding complained of is evidently one of those incidental proceedings of a trial which is not a part of the record proper by the course of the common law, and which, hence, can be made a part of the record only by a proper bill of exception. The facts necessary to support the seventh assignment, therefore, must have been, in order to invoke our revisory power, embodied in a formal bill of exceptions duly prepared, submitted to opposing counsel for examination, and approved by the court, as required by statute. This was not done and the assignment must be disregarded. See Tex. Mid. R. R. Co. v. Byrd, 110 S. W. 199, and authorities cited on pages 101 to 103 of 7 Encyc. Digest Texas Cases.

The only remaining assignment is the sixth, which, together with its proposition, is as follows:

“Sixth Assignment of Error.
“Because the court erred in overruling appellant’s motion for a new trial on the nineteenth ground thereof, which reads as follows: ‘Because the verdict of the jury is contrary to law and unsupported by the evidence in this: The evidence fails to show with that necessary degree of sufficiency or certainty that plaintiff was, in fact, a passenger on defendant’s train, as alleged; or that the alleged accident, or any other accident, happened, as alleged; or that plaintiff was injured, as alleged; or that plaintiff was ever injured by any act of negligence on the part of the defendant at the time and place in question, as alleged.’
“First Proposition.
“Where the physical facts are such as to demonstrate that the evidence offered in support of an alleged cause of action is untrue, it is the duty of the court to charge the jury to return a verdict for the defendant; therefore it was the duty of the court, under the facts in this case, to set aside the verdict of the jury and grant appellant a new trial.”

We are of the opinion that the assignment as limited by the proposition cannot be sustained. Appellee testified generally in support of the facts alleged in his petition and specifically to the effect that he took his place in the car upon the seat, placing his right arm and elbow upon the window sill; that soon after the train began its journey the window fell upon his arm; that immediately afterwards he examined the window and found that it was worn. While the evidence in behalf of appellant, to the effect that the ear had been inspected the morning before and later in the evening, and that an examination had also been made some 10 or 12 months thereafter and the window found in good condition, was of a contrary tendency, yet it was not conclusive. The evidence merely presents a conflict which it was the province of the jury to determine.

We think the judgment must be affirmed, and it is so ordered.

SPEER, J„ not sitting.