author: HIGGINS, J.

text:
    CORBIN v. BOOKER.
    (No. 534.)

    (Court of Civil Appeals of Texas. El Paso.
    March 16, 1916.
    Rehearing Denied April 6, 1916.)
    1. Appeal and Error &wkey;>931(3) — Review-Presumptions.
    Where no findings of fact were filed in the trial court, an appellate court must assume that all issues of fact properly arising were resolved in favor of the appellee.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3764; Dec. Dig. <§=o931(3)j
    2. Contracts &wkey;>l47(2) — Construction—Intention oe Parties.
    The governing principle in the construction of contracts is that they are to be expounded in accordance with the intention of the parties, to be ascertained from the writing itself when its meaning is clear.
    [Ed. Note — For other cases, see Contracts, Cent. Dig. § 730; Dec. Dig. <§=>147(2).]
    3. Evidence <§=>448 — Parol Evidence Affecting Writings — Construction of Contract. .
    Where a written instrument is uncertain in meaning and its language ambiguous, or of doubtful construction, the intention of the parties must be obtained by proof aliunde.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2066-2082, 2084; Dec. Dig. &wkey; 448.]
    4. Contracts &wkey;170(l) — Construction — Practical Interpretation.
    Practical interpretation placed by the parties themselves on a contract of doubtful meaning is entitled to great, if not controlling, influence.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. § 753; Dee. Dig. &wkey;170(l).]
    5. Evidence <&wkey;450(4) — Parol Evidence Affecting Writings.
    Under a contract of assignment of a lease and option to purchase land, providing that the assignor agrees to proceed at once to survey and establish the exact boundary lines within three years from April 20, 1910, it cannot be determined from the language of the contract itself whether the assignor was obligated to proceed at once or could do so within the three-year period.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2070; Dec. Dig. &wkey;450(4).]
    Appeal from District Court, El Paso County; P. R. Price, Judge.
    Action by W. D. Corbin against L. E. Booker. From a judgment for defendant, plaintiff appeals.
    Affirmed.
    C. L. Galloway and C. L. Yowell, both of El Paso, R<. Y. Bowden, of Los Angeles, Cal., and J. D. Wendorff, of Kansas City, Mo., for appellant. Turney & Burges and T. A. Fal-vey, all of M Paso, for appellee.

      Application for writ of error pending in Supreme Court.

   HIGGINS, J.

On April 20, 1910, in Chihuahua, Mexico, certain parties, who will be hereinafter designated as the “Muller heirs,” entered into a written contract with L. E. Booker which reads:

“First. The Mesdames Douglas and Dominguez, and the Messieurs Gameros (Manuel, in representation of his daughter) declare that they are the owners of the hacienda named ‘Santa Ana del Torreon’ situated in the municipality of San Buenaventura, district of Galeana, in this state, and having the following boundaries: North, lands of Luis Terrazas, and the Corrali-tos Company; south, lands of Francisco A. Prieto and Jose Prieto Yarela; east, lands of Luis Terrazas; and west, lands of Colonia Dub-lan, George Look and Luis Terrazas.
“Second. Mesdames Douglas and Dominguez, and Messieurs Manuel and Enrique Gameros (the former in representation of his minor daughter, and the latter in his own name) have this day leased to Lewis E. Booker the ‘hacienda de Santa Ana de Ton-eon’ described in the foregoing clause, for the term of three years in the sum of ten thousand pesos for the first year, thirteen thousand pesos for the second year and sixteen thousand pesos for the third year, payable annually in advance; the lessors hereby acknowledging the receipt of the first year’s rent.
“Third. The lessors herein obligate themselves to proceed at once to identify the exact boundary lines of the before mentioned hacienda de Santa Ana de Torreon, and within the term of three years to establish the correct lines or boundaries of the property in such manner as to leave no question or doubt whatever.
“Fourth. The lessors are herein obligated to sell to L. E. Booker and he, in turn, is obligated to buy the before mentioned hacienda with its extensions which within three years can be so delivered without question, in the sum of fifteen thousand pesos for each one thousand seven hundred and fifty hectaras sixty one aras; said sum to be paid in four equal annual payments in cash-, interest at six per centum per annum, counting from the date of sale.
“Fifth. In case the boundary lines are established in such a manner that there is no question of their correctness within the life of this contract, the lessors shall give the lessee, L. E, Booker, six months’ notice for the first payment which would fall due under a bill of sale for the property.
“Sixth. Mr. L. E. Booker accepts this contract under the conditions herein set forth.”

In May, 1910, a preliminary contract was entered into between Booker and W. D. Cor-bin, whereby it was agreed that Booker would assign to Corbin his rights under above-mentioned contract. It was agreed that Corbin would pay Booker for this assignment the sum of 28 cents per acre on an estimated acreage of 200,000 acres, making a total of approximately $56,000 and the further sum of $5,000 as a refund for the 10,000 pesos paid by Booker to the Muller heirs for the first year’s rent.

On August 22, 1910, Booker and Corbin reduced their agreement to writing; the same reading:

“That, whereas, said Booker on the 20th day of April, 1910, entered into a certain contract with Mesdames Enriqueta Muller Douglas, Maria Muller Dominguez, with the consent of Eduardo Douglas and Augustin Dominguez, their respective husbands, and Messrs. Manuel Gameros legal representative of his minor daughter, Elisa, and Enrique Gameros, which said contract constituted a lease and an agreement to sell the certain ranch or hacienda named ‘Santa Ana de Torreon’ to Lewis E. Booker; copy of said contract is hereto attached, marked ‘Exhibit A,’ and made a part of this contract: Now, therefore, for and in consideration of the sum of five thousand ($5,000.00) dollars Mexican currency paid said Booker by said Corbin, receipt of which is hereby acknowledged, and the assumption by said Corbin of any and all obligation of the aforesaid contract, said Booker hereby agrees and does hereby assign, sell, set over, transfer and deliver unto the said Corbin all of his right, title and' interest in and to said contract, copy of which is hereto attached, marked ‘Exhibit A.’
“Said Booker further agrees to proceed at once to survey, establish and identify, or cause to be surveyed, established or identified, the exact boundary lines of the above-mentioned ranch or hacienda de Santa Ana de Torreon within the period of three (3) years from and after the 20th day of April, 1910, to survey, establish and identify or cause to be surveyed, established and identified the correct lines or boundaries in such manner as to leave no question or doubt whatever about the same. Said Booker hereby agrees and guarantees that the east boundary line of said land shall be east of all and every part of the valley land of said tract of land and east of all springs arising upon said land, and the south boundary line of said tract of land shall be south of all springs arising upon said tract of land above mentioned, as indicated and designated by the ancient monuments marking the east and south boundary lines of said tract of land as pointed out by one Thomas Bailey, acting as agent for the said Booker for the purpose of pointing out said boundary line.
“Said Booker further agrees that in the event any portion of the lands lying within the boundary lines above described and particularly that certain 2% sitios of land lying adjacent to and within the lands which extend one league north, one league east, one league south and one league west from the church, in the Municipality of Galeana, shall be adjudged to be the property of the parties other than the parties of the first part to the contract with said Booker, copy of which contract is hereto attached marked ‘Exhibit A’ then and in that event said Booker agrees that he will acquire the title to said 2% sitios of land and cause the same to be at once transferred to the said Corbin at the same price per acre as specified in said contract of said Booker, copy of which is hereto attached, marked ‘Exhibit A.’
“Said Booker hereby further agrees that immediately upon the signing of this contract he will cause to be delivered to said Corbin the free and exclusive possession of the entire tract of land contemplated in this contract, and said Corbin is to have the free and exclusive use, occupancy and possession of the same from and after the signing of this contract.
“Said Booker guarantees that said parties of the first part to said contract, copy of which is hereto attached, marked ‘Exhibit A’ will faithfully comply with all the terms and conditions of said contract on their part, and upon said Corbin complying with all the terms of said contract upon his part, the said Booker will cause said lands contemplated in this contract to be conveyed to said Corbin by a good, sufficient and legal warranty deed, and said Booker further agrees that the title to said land so conveyed as aforesaid to said Coz-bin shall be clear and fi'ee from all encumbrances whatsoever and that said Booker will warrant and forever defend the title to said Corbin to said lands against all claims and demands of every nature and kind whatsoever, except taxes.
“It is further hereby ■ stipulated and agreed that any suit or suits for die violation of any term or terms of this contract may be instituted and prosecuted by either party to this eon-ti’act in any court of competent jurisdiction either in the Republic of Mexico or the United States of America.”

On August 23, 1910, Booker and Corbin entered into another contract, reading:

“That whereas, on the 22d day of August, A. D. 1910, said parties hereto entered into a contract which, among other things, constituted an assignment of a certain lease and option to purchase a certain tract of land known as ranch or hacienda de Santa Ana de Tori'eon, situated in the municipality of San Buenaven-tura, district of Galeana, state of Chihuahua, Republic of Mexico, and that in said contract said Booker agreed that in the event any portion of that certain 2% sitios of land lying adjacent to the district of Galeana and within the land which extends one league north, one league south, one league east and one league west from the church, in the district of Galeana shall be adjudged to be the property of parties other than the parties of the first part in said conti-act with said Booker dated the 20th day of April, A. D. 1910, then and in that event, said Booker would cause said lands to be transferred to said Cor-bin: Now, therefore, in the event that said Booker is compelled to purchase any portion of that certain 2% sitios of land lying adjacent to the district of Galeana and within the lands which extend one league north, one league south, one league east and one league west from the church, in the district of Galeana from parties other than those mentioned in his said contract for the purchase of lands dated April the 20th, A. D. 1910, said Corbin will within sixty days after being notified in writing by said Booker that he has a contract of purchase of said lands with the title to the same approved by J. N. Amidor, pay to said Booker twenty per cent. (20 of the purchase price of said lands as provided in said contract dated April 20th, A. D. 1910, and said Corbin shall have free and absolute possession of said lands from and after the time of payment of said 20% of the purchase price as aforesaid, and the balance of said purchase price shall be paid said Booker within six months from the date of said notification and said Booker hereby guarantees that said land shall be conveyed to said Corbin at the time said Coi-bin pays the balance of said purchase price as herein provided.”

In the contract between Booker and Corbin, dated August 22, 1910, it is recited that the consideration for Booker’s assignment to Corbin of his rights under the contract of April 20, 1910, is the sum of $5,000 Mexican currency. It is admitted this did not truly state the consideration, and that the true consideration was the sum of approximately $56,000 upon the estimated acreage and $5,-000 to reimburse Booker for the first year’s rent paid by him.

Corbin paid a part of the consideration which he contracted to pay to Booker and has failed to pay the balance. He gave a note to cover'such balance, which was accepted by Booker, but same has never been paid. On December 21, 1911, Corbin filed this suit against Booker to recover the moneys paid by him to Booker on account of the contract between them and to cancel the note given by him as above stated; also, to recover certain moneys by him expended and for profits which he averred he had lost by reason of Bookér’s failure to perform his obligations under their contract. In effect, the suit is for a rescission of the contract and to restore to Corbin all moneys which he had expended and profits lost.

It is contended that Booker breached his obligation with reference to surveying, establishing, and identifying the boundaries of the hacienda and delivery of possession.

Upon trial before the court, judgment below was rendered in Booker’s favor. There being no findings of fact filed below, this court must assume that all issues of fact properly arising were resolved by the court in Booker’s favor.

The vital points raised by this appeal, and upon which all of the questions in the case turn, are well stated by appellant in this language:

“(1) Was the defendant required, under the terms of the contract, to begun surveying immediately after the signing of said contract, and continue until what could then be done was done, and complete the surveys covering the disputed lands as they wei-e adjusted within the three years, or did he have the right at his option to begin the surveys at any time he chose within the said period of three years, provided he completed the same within said period?
“(2) If, under a proper construction of the contract, the defendant had not breached the provisions relative to surveys at the time suit was filed, then the next question is whether or not he had breached the provision of the contract relating to the giving possession of said ranch to plaintiff at the time suit was filed.”

Booker’s obligation with respect to surveying, establishing, and identifying the boundaries of the hacienda is not clearly stated in the contract of August 22, 1910. In this respect, it is ambiguous and of doubtful construction. The uncertainty of meaning is not relieved by the contract of April 20, 1910, in connection with which it should be construed. The governing principle in the construction of contracts is that they are to be expounded in accordance with the intention of the parties. The intention of parties to a written contract must be ascertained from the writing itself when its meaning is clear. But where the instrument is uncertain in meaning, and its language ambiguous or of doubtful construction, the intention of the parties must be obtained by proof aliunde. Under such circumstances, resort may be had to the surrounding facts and circumstances connected with its execution as would tend, not to contradict the terms of the instrument, but to explain its purp'ose and meaning, in order to arrive at the true intent of the makers. And the practical interpretation placed by the parties themselves upon a contract of doubtful meaning is entitled to great, if not controlling, influence. In an executory contract of this nature, and where its execution necessarily involves a practical construction, if the minds of both parties concur in a construction, there can be no great danger in the adoption of it by the dourt as the true one.

In the case at bar, it is admitted that Booker did not at once proceed to survey, establish, and identify the boundaries of the hacienda, or cause the same to be done, and had not done so at the time plaintiff filed his suit. He contends that he ctould do this at any time within the period of three years from and after April 20, 1910. There seems to be no controversy that there was ample time to do this within the three-year period if Booker’s contention is Correct. It is impossible to determine from the language itself whether Booker was obligated to at once proceed to survey, establish, and identify the boundaries, 'or could do so within the period of three years from and after April 20, 1910. Appellant seems to concede the doubtful import of the contract in this respect, as he argues that the- surrounding facts and circumstances show it was the intention of the parties that Booker should at once proceed to do so. Under the rules of interpretation to which allusion has been made, the evidence is clearly sufficient to support a finding that the intention of the parties was as contended by Booker.

As to possession, the evidence shows that Corbin was in possession through his tenants and representatives. Rentals were collected

for his account from various tenants. He made several trips to the land. Several parties of prospective purchasers were sent by him to view the land, and he seems to have had as complete possession as he desired.

So, upon both phases of the case, B'ooker was not in default when the suit was filed, and recovery back of the moneys which Cor-bin had paid was properly denied. It will serve no purpose to detail the evidence upon the two vital issues in the case. It was abundantly sufficient to warrant the trial court in resolving both issues against appellant. Long subsequent to August 22, 1910, Corbin was expressing to Booker his appreciation of and satisfaction with Mr. Booker’s treatment of him. Said he had never done business with a man who seemed to want to be as fair as Booker. He was justifying his failure to make the payment of the $61,000 which he had agreed to pay by the financial situation and his inability to procure the money. It is plainly inferable from all the testimony that the revolutionary conditions which arose in this portion of Mexico in the year 1911, destroying the value of Corbin’s rights under the assignment of the contract of April 20, 1911, coupled with inability to pay the balance due Booker, was an important and probably controlling factor in prompting Corbin to seek a rescission of his contract with Booker, rather than any breach thereof upon Booker’s part. ’

Chief Justice HARPER Concurs in the disposition made of this appeal. He is of the opinion that the contract of August 22, 1910, must be construed in connection with the Booker-Muller contract, because it was simply an assignment by Botoker of his rights, under his Muller contract, and it so stipulates in unquestioned terms.

The Muller contract only provided that the boundaries were to be identified and established within three years, and the only additional provision, if it is additional, in the Corbin-Booker contract, is that Booker agrees to survey. The only thing of doubtful import in these two contracts is the expression “proceed at once,” and when this is read in the light of the Booker-Muller contract, that is, the lands were in fio event to be deeded until the expiration of three years, it is apparent that either party, the Mullers or Booker, had the entire three years in which to perform that part of the contract. For, until the time came to pass- title by executing deeds,’ there was no necessity; for identification by field notes. At least, there is nothing in the writings themselves to indicate that there was any reason for surveying the lands any sooner than was necessary to have field notes for the end.

But if the contracts are ambiguous, as seems to be conceded in respect to the time when the parties were to begin to survey, identify the boundaries, etc., there is no doubt that both contracts provide that the grantors shall have the full period of three years in which to do it. Then what value would it be to appellant for the Mullers or Booker to “begin at once” if they have full three years to complete the survey ? Clearly, the matter of the time for beginning the survey was of ho consequence — so that it was done in time for the deeds.

Finding no error, the judgment is affirmed.
      <5&wkey;For other oases see same topic and KEY-NUMBER, in all Key-Numbeited Digests and Indexes

      <@£s>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: TALBOT, J.

license: Public Domain

text:
    ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. RUTHERFORD.
    (No. 7445.)

    (Court of Civil Appeals of Texas. Dallas.
    Feb. 12, 1916.
    Rehearing Denied March 25, 1916.)
    1. Carriers <&wkey;290(l) — Carriage of Passengers — Liability for Injuries.
    Where a carrier failed to keep its car comfortably warm, and plaintiff’s wife, who was in a delicate condition, contracted cold, which resulted in an impairment of her health, recovery cannot be denied on the ground that neither plaintiff nor his wife informed the carrier or its servants of the condition of his wife; for a carrier is bound to exercise the highest degree of care practicable for its passengers, and so such notification was not necessary to entitle plaintiff’s wife to have the car properly heated.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 1183; Dec. Dig. &wkey;290(l).]
    2. Carriers <&wkey;320(ll) — Carriage of Passengers — Actions—Evidence—Jury Question.
    In an action for injuries to plaintiff’s wife resulting from cold contracted in an insufficiently heated car, evidence held insufficient to raise for the jury the question whether the carrier’s servants would have heated the car had they been informed of the wife’s delicate condition.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 1190; Dec. Dig. <&wkey;>320(ll).]
    3. Carriers <&wkey;330 — Carriage of Passengers — Contributory Negligence.
    Though there was fuel and a stove in the ear in which plaintiff and his wife were riding, plaintiff’s failure to build a fire in the stove, the car becoming cold, and his wife being in a delicate condition, is not contributory negligence precluding recovery for injuries resulting to his wife from exposure.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1370, 1372, 1373; Dec. Dig. &wkey; 330.]
    4. Appeal and Error <&wkey;742(5) — Assignments of Error — Consideration.
    An assignment of error complaining, of the court’s refusal to submit an issue to the jury cannot be considered on appeal, where the accompanying statement merely stated that there was abundant evidence to establish appellant’s contention; the statement as to the evidence being a mere conclusion.
    [Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. &wkey;>742(5).]
    5. Appeal and Error <&wkey;1062(2) — Review-Harmless Error.
    In an action for injuries to plaintiff’s wife, who contracted cold in an insufficiently heated car, the refusal of the court to submit the question whether plaintiff had exercised due care in furnishing his wife with suitable clothing for the trip was harmless, where the jury answered in the negative a question whether the wife was negligent in providing herself with suitable clothing.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4213; Dec. Dig. &wkey;>1062 (2).]
    6. Damages <®=»132(5) — Personal Injuries— Measure.
    In an action for injuries to plaintiff’s wife, who contracted cold in an insufficiently heated car, an award of $1,700 damages, one-half of which the jury specified was for damages to the present and the remainder for future damages, cannot be held excessive, where the cold settled in the wife’s internal organs, causing her to bloat and affected her menstruation and general health.
    [Ed. Note. — For other cases, see Damages. Cent. Dig. § 376; Dec. Dig. <&wkey;132(5).]
    Appeal from District Court, Navarro County ; H. B. Daviss, Judge.
    Action by P. M. Rutherford against the St. Louis Southwestern Railway Company of Texas. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    E. B. Perkins and Daniel Upthegrove, both of Dallas, and R. S. Neblett, of Corsicana, for appellant. Oallicutt & Johnson, of Corsi-cana, for appellee.

      Application for writ of error pending in Supreme Court.

   TALBOT, J.

The appellee, Rutherford, brought this suit to recover damages alleged to have been sustained on account of sickness and injuries caused his wife, Mrs. Rosie Rutherford, by the negligence of appellant in furnishing her, as a passenger, a cold or insufficiently heated ear in which to be transported from Hamilton, Tex., to Stephenville, Tex., about the 14th'of November, 1913. The evidence uopn the issues raised by the pleadings was conflicting, but sufficient to warrant the following conclusions of fact: On November 14, 1913, the appellee, P. M. Rutherford, and his wife, purchased tickets and boarded one of appellant’s trains at Gatesville, Tex., to be carried to Stephenville, Tex. Before purchasing tickets, appellee told the agent of appellant at Gatesville that be had to go to Stephenville and had to arrive there that night The agent replied, in substance: Go over appellant’s line; you can buy a ticket to Hamilton, and there take a train going over appellant’s branch road to Stephenville; you will get to Hamilton about 5 o’clock this afternoon and will there be transferred and go right on through. Ap-pellee then bought tickets for himself and wife entitling them to transportation over appellant’s roads to Stephenville and boarded the train for that purpose. The train upon which they took passage left Gatesville about 2 o’clock p. m. and arrived at Hamilton about 15 minutes past 5 o’clock of the same afternoon. Just before the train reached Hamilton, the conductor passed through the coach in which appellee and his wife were traveling and told the passengers who were going to Stephenville to remain in that coach. Appellee then asked the conductor if he would make connection at Hamilton for Stephenville, and informed him that if he would not he would take a train over the Frisco Railway to Comanche. The conductor replied that appellee would be carried over from Hamilton in about 30 minutes. When the train arrived at Hamilton, the coach in which appellee and his wife were riding was put on a side track about 200 or 300 yards from the depot with appellee and his wife and the other passengers bound for Stephenville in it, where the car and passengers remained until about 1 o’clock the next morning. It seems that the car in which appellee and his wife were traveling was to be carried from Hamilton to Stephenville by a freight train which had not arrived at Hamilton when said car was placed on the side track; but of this neither appellee nor his wife was informed, and they remained in the car, thinking it would be pulled out for Stephenville within the time the conductor had informed them they would be carried forward on their journey, until that time had expired. There were no lights and no fire in the car, and after it had remained on th'e side track for about one hour the ap-pellee went to appellant’s depot and told the agent there the condition of the car. The conductor remarked, in effect, that if he (ap-pellee) and his wife expected to be carried to Stephenville they would have to stay in the car, as he (the agent) did not know when the freight train would arrive. This was the first time appellee knew that he and his wife were to be carried from Hamilton to Stephenville by a freight train. There was no porter on the car, and no agent of appellant of any character in charge of it while it remained on the side track. The coach was comfortable when it first arrived at Hamilton and was placed on the side track, but later in the evening the weather became much cooler, and the car got cold. Mrs. Rutherford was suffering from menstruation, and while the car was on the side track she became cold, especially her feet, and very uncomfortable, and other lady passengers complained of being cold. Some time after dark, and while the car was still on the side track, the appellee went out near the railroad track, got some “chunks,” and with them and waste paper found in the car made a fire in the stove, and, in the language of the witness, appellee “got the car pretty comfortable, but it didn’t last long.” The car left Hamilton about 1 o’clock that night and reached Stephenville at about 4 o’clock that morning. There was no fire made in the stove of the car after it pulled out of Hamilton, and appellee’s wife was quite cold and complained of suffering pain from th'e time the car started until it arrived at Stephen-ville ; and as a result of the unwarmed condition of the car she took a severe cold and was made sick.

Mrs. Rutherford testified:

“I caught a severe cold that night. I was not comfortable while in that car because I was cold and suffering. The cold settled in, my back and ovaries. The cold left me in a bad condition, and I suffer all the time. The suffering lasted for over a week at that time. I did not see any railroad man in that car from Hamilton to Stephenville, except the conductor. There wasn’t any fire in that stove from Hamilton to Stephenville. I heard Mrs. Richardson, an old lady passenger, complaining that she was cold. No railroad man ever asked or inquired as to the comfort of the passengers from the time that car was set out there (at Hamilton), about 5 o’clock in the evening, until 4 o’clock the next morning, when we got to Stephenville.”

The agents of appellant in charge of the coach in which appellee and his wife were being transported to Stephenville were not informed of the condition of Mrs. Rutherford, and neither of them knew she was suffering from her monthly sickness.

The appellant denied the facts alleged in appellee’s petition, and charged that appellee and his wife were guilty of contributory negligence, which was the proximate cause of the injury complained of, in that neither of them made known to appellant’s agents the sick or delicate condition of Mrs. Rutherford; that appellant’s agents were ignorant of her condition, and that no request that additional heat be supplied was made; that had it been made known to appellant’s agents in charge of the train, upon which appellee and his wife were traveling, that Mrs. Rutherford was suffering with her menstrual period and needed more warmth in the car, it would have been furnished. Appellant further charges that there was provided in the coach in which appellee and his wife were traveling a stove and an abundance of fuel, and that they could have made a fire and kept the coach' heated at such a temperature as they desired; that they failed to do this, and were in that respect guilty of negligence contributing to the injuries complained of; that they were further guilty of such negligence in that they failed to provide themselves suitable wraps or clothing in which’ to travel. The case was tried before the court and a jury, and resulted in a verdict and judgment for appellee in the sum of $1,700.

The first assignment of error is that the court erred in refusing to give the following special charge requested by the appellant:

“You are instructed that the evidence does not show that either the agent of the defendant at Hamilton, or the brakeman in charge of the train from Hamilton to Stephenville, knew or had notice of the claim that Mrs. Rutherford was in delicate health and suffering from female trouble, either at Hamilton while the car was there, or while the car was being transported from Hamilton to Stephenville. And in this connection you are further instructed that if you believe from the evidence that the plaintiff’s wife, Mrs. Rutherford, was in delicate health and suffering from female trouble and her monthly sickness at the time she was in the coach at Hamilton, or while traveling from Hamilton to Stephenville, and you further believe from the evidence that a reasonably prudent person would have made known this condition to the agent at Hamilton, and to the conductor and brakeman in charge of the train from Hamilton to Stephenville, and that plaintiff was negligent in not so doing, and that if such fact had been made known the defendant, through its agents and operatives of the train, would have provided coal or fuel and heat, and would have kept the coach at such temperature as would have prevented any suffering or pain to plaintiff’s wife, if they did not, then you will find for the defendant, whether you believe from the evidence that defendant failed to keep fire in the coach, or keep it comfortable for her, or not.”

The proposition advanced is that:

“It was a question of fact for the jury to determine, under all the circumstances and evidence in the case, what was the proximate cause of the suffering and injury, if any, endured and received by Mrs. Rutherford, appellee’s wife, and whether or not appellee, Rutherford, was guilty of negligence in failing to make known the condition of his wife and request that the car be made comfortable and suitable to her condition, and the court should have submitted this issue to the jury.”

Notwithstanding the evidence was insufficient to show that either of appellant’s agents knew that Mrs. Rutherford was in delicate health and suffering from menstruation while she was in the car at Hamilton or while she was being transported from Hamilton to Stephenville, there was no error in refusing the special charge in question. Neither the appellee, nor his wife, could be charged with contributory negligence in failing to make known the condition of Mrs. Rutherford, even though had it been done the servants of appellant would have heated and made comfortable the car. In strictly actions for a breach of contract, special damages cannot be recovered unless it is alleged and proved that at the time of the making of tne contract the defendant had notice of the special conditions or circumstances rendering such damages the natural and probable result of the breach. The instant suit is not such an action. It is one for a tort founded upon contract. The wrongful acts and omissions charged which resulted in Mrs. Rutherford’s injury, and which the evidence was sufficient to establish, constituted actionable negligence on the part of the appellant amounting to a tort, and the rule applicable to special damages does not obtain. It was the duty of appellant as a common carrier of passengers to exercise that high degree of care for the personal comfort and safety of Mrs. Rutherford which a very cautious and prudent person would have exercised under the circumstances surrounding her, and it cannot escape liability for the damage done her as a result of the failure to discharge that duty, upon the ground that she nor the appellee, her husband, made known her suffering condition and requested its servants to do those things necessary to prevent injury to her which the law imposed upon them. The question is not whether the damage done Mrs. Rutherford entered into the consideration of the parties with knowledge of her physical condition before the acts or omissions causing it were done or omitted, but whether such damage was fairly and directly the result of such acts or omissions. Railway Co. v. Redeker, 45 Tex. Civ. App. 312, 100 S. W. 362.

In the case of Railway Co. v. Ferguson, 26 Tex. Civ. App. 460, 64 S. W. 797, the plaintiff sued to recover damages for injuries inflicted upon his wife. 1-Iis wife was pregnant and a passenger on the railway company’s train. Through the negligence of the company’s servants an engine or train collided with the car in which Mrs. Ferguson was seated with such force that she was partially knocked from her seat and greatly shocked, jerked, and injured, causing her physical and mental suffering, and resulting in the premature birth of her child. The court instructed the jury to the effect that the railway company owed Mrs. Ferguson the duty to exercise that high degree of care for her reasonable personal safety which a very prudent person would use under the same circumstances about the same 'matter, and that a failure to exercise such care would be negligence. This charge was objected to, and the proposition contended for by the railway company that, without knowledge of the delicate condition of Mrs. Ferguson, the degree of care imposed by law upon it was that due to all persons in usual and ordinary physical condition, and not such as might have been due to one “in the light of attending circumstances.” This proposition was not sustained, and, in discussing the question, the court uses the following language:

“The court gave the proper standard of care; and the degree of care so prescribed, in our judgment, must be exercised by the carrier of passengers in the light of an imputed, if not actual, knowledge that the aged, the infirm, and those in delicate condition may and do constantly travel on the passenger trains of the country. Humanity is heir to many ills and destructive conditions requiring notice and peculiar care, and those commonly and constantly engaged in their transportation for hire ought not to be heard to say in excusa for their negligence, ‘We were without notice of the fact.’ ”

In Railway v. Rushing, 69 Tex. 306, 6 S. W. 834, the objection to the court’s charge was that the company’s liability was made to depend upon whether the force of the engine was sufficient to throw the plaintiff down, and not whether it was sufficient to throw a person of ordinary physical ability. In disposing of the objection, our Supreme Court said:

“The charge as given is correct in law. A railroad company owes a duty to others besides persons of ordinary physical ability. They are presumed to know that persons * * * old or decrepit travel upon their trains, and they must exercise care accordingly.”

But again, in the case of Pecos & N. T. Ry. Co. v. Williams, 34 Tex. Civ. App. 100, 78 S. W. 5, the appellee was a passenger of the appellant, was carried about a mile beyond her station, and put off the train. She alleged, among other things, that she was, and had been for a long time prior to the wrongs complained of, a frail and delicate person, and had been afflicted with an ear trouble since her early childhood; that she was compelled, because of her ejection from appellant’s train, to walk hack to her station, through snow and storm; and that as a direct result of her exposure therefrom she took a severe cold, which resulted in tonsilitis, eserueiating pains in her neck and head, and a pus discharge from her ear. The principal controversy arose from the objection presented by the railway company to the averments that appellee was a person of delicate health, unprotected with sufficient wraps, etc., to withstand the storm or rain, sleet, and snow, and had been afflicted with an ear trouble since her early childhood. It was contended, in effect, that, in the absence of notice of such conditions of the person, appellant was not liable for such injuries as may have resulted to appellee “in excess of what would have resulted to a woman in a natural state of health and clothed as one would naturally be expected to clothe herself to make such a trip in such weather.” This contention was held to be not well taken, and, in effect, that the allegations of appellee’s physical condition, when ejected from appellant’s train, her affliction with an ear trouble, and her suffering on account of the exposure to which she was subjected by reason of appellant’s wrongful acts were proper and proof thereof admissible, although the appellant had no notice of such conditions. The remarks made in the foregoing cases were quoted and approved by this court in the case of Railway Oo. v. Redeker, supra, and the principles of law enunciated therein are applicable to the instant case and make plain the correctness of the court’s ruling in declining to give the special charge under consideration.

Again, we are inclined to the opinion that the evidence was insufficient to authorize the submission of the issue sought to be submitted in the charge that appellant’s servants, had they known that appellee’s wife was suffering from her monthly sickness, would have kept the coach at such temperature as would have prevented any suffering or pain to appellee’s wife. The extent of the testimony in relation to that issue is that of the appellant’s witness O. E. Main, a brakeman on the train. He testified:

“It is my best remembrance that the fire was kept up and the coach kept warm. I wasn’t still keeping up the fire to warm that old lady after she got off at Alexander. If I hadn’t thought the coach was warm enough after we left Alexander, I would have put more coal in the stove.”

The old lady referred to was a passenger who left the train at the station Alexander on the line of appellant’s road between Hamilton and Stephenville, and, according to the testimony of appellee, his wife suffered from the exposure to cold, by reason of being forced to remain and travel in an unheated coach for several hours before the station Alexander was reached.

What we have already said disposes of appellant’s second, third, fourth, fifth, and sixth assignments of error adversely to its contention, and further discussion is unnecessary.

The seventh assignment of error complains that the court erred in refusing to give a special charge requested by appellant to the effect that if the coach in which the ai> pellee and his wife were traveling became cold to such an extent as to inflict pain and suffering upon Mrs. Rutherford, and the defendant was negligent in that it did not exercise such high degree of care as a reasonably prudent person would have exercised under the same or similar conditions to have kept the coach warm, and there was a stove in the coach, and there was coal and fuel provided with which the plaintiff, P. M. Rutherford, in the exercise of ordinary care and prudence, could have made a fire and have kept the coach at such temperature as would have prevented any pain or injury being suffered by plaintiff’s wife, and in the exercise of ordinary care a reasonably prudent person would have done so, and his failure to do so, if he did fail, proximately caused or contributed to any pain or suffering which Mrs. Rutherford endured, then to find for defendant, whether the defendant, railroad company, was negligent in the first instance or not. We are of the opinion that, even though there was a stove in the coach in which appellee and his wife were traveling and coal and fuel provided for making a fire in it, the law did not impose the burden or duty upon appellee to make use of them for the purpose of heating the coach, in order to escape the charge of having failed to do what a reasonably prudent person would have done under the circumstances to avoid injury. The duty rests upon railway companies to exercise that high degree of care spoken of in the charge refused, to heat their coaches sufficient to prevent suffering and injury to their passengers from cold, and will not be heard to say, when that duty has not been-performed and a passenger is injured thereby, that such passenger was guilty of negligence barring a recovery because he did not do the thing to prevent the injury which was imposed by law upon such companies. The special charge was properly refused.

This disposes also of the eighth and ninth assignments of error and further consideration of them is unnecessary.

The court in its general charge instructed the jury, in substance, that if Mrs. Rutherford was too thinly clad for the condition she was in while traveling over appellant’s road and in the then state of the weather, and a person of ordinary care would have provided thicker and warmer clothing for such a journey, and the jury should believe she was guilty of negligence in that regard, and such negligence caused the pain and injury suffered by her, to find for tlie appellant. In this connection, the appellant requested the court to give a special charge to the effect that if either Mrs. Rutherford or the appellee was guilty of negligence in this respect, and such negligence caused the pain or injury complained of, to find for the appellant. This requested charge was refused, and the court’s action in refusing it and in giving the paragraph of the general charge just referred to is by assignments of error 10 and 11, respectively, asserted to be error. It is claimed that the action of the court in giving the one and refusing the other of these charges constitutes reversible error, because the appellant was entitled to a verdict if either Mrs. Rutherford or the appellee, her husband, was guilty of contributory negligence with respect to the clothing she wore or was provided with. A consideration of the assignments is objected to on the ground that there is not subjoined to either of them such a statement in support thereof as is required by the rules. The objection, we think, is well taken. There is no evidence quoted or stated showing negligence on the part of the appellee with respect to furnishing his wife warm and suitable clothing for the trip she was taking. The only portion of the statement, made under the assignments, that relates to the evidence upon the subject, is simply that “there was abundant evidence to show that he (appellee) was negligent in this regard.” This is a mere conclusion and wholly insufficient under the rules. We have, however, looked to the evidence contained in the statement of facts and conclude that it was insufficient to raise the issue, sought to be submitted to the jury by the special charge. It is true the trial court submitted such an issue with respect to the conduct of Mrs. Rutherford, but we are of opinion that no error would have been committed had such issue been omitted altogether. But having submitted to the jury the question of whether Mrs. Rutherford was guilty of negligence in failing to provide herself with warm and suitable clothing for the journey she was making, and the jury having found that she was not guilty of negligence in that respect, it is manifest that the court’s refusal to give appellant’s special charge calling upon the jury to determine whether or not the appel-lee negligently failed to furnish his wife such clothing did not result in the rendition of an improper verdict and judgment. The refusal of the special charge therefore must be regarded as harmless.

The remarks of counsel for appellee to the witness Walker while interrogating him on cross-examination, and made the basis of the twelfth assignment of error, were doubtless improper; but they were not of such a character as affords any just and sufficient reason for a reversal of the case. The assignment will therefore be overruled.

The verdict rendered by the jury is as follows:

"We, the jury, find for the plaintiff the sum of 81,700.00, to wit, $850.00 as damages to the present time, and $850.00 as future damages.
“S. B. Bromley, Foreman.”

It is assigned that there is no evidence which shows that the appellee’s wife will suffer injury or pain in the future, and that the verdict is excessive and shows that it is the

result of ignorance, prejudice, and ill feeling toward the appellant, and is not an expression of the honest opinion of the jury attempting to apply the law as given in the charge of the court to • the evidence as detailed by the witnesses.

The testimony bearing upon the nature and extent of Mrs. Rutherford’s injuries and suffering is disclosed by the testimony of Mr. and Mrs. Rutherford, and Hr. Langford. Mr. Rutherford, the appellee, testified:

“My wife was suffering' from pains from her monthly period. She was suffering before we left Hamilton, and continued to do so for some time. For a month or two I had to take her to her mother’s. She caught cold in the car that night, and it settled in her bowels and caused her to bloat. Since then she has had trouble with her menstrual periods every time. First time after that it came on her 12 days early. Before that her periods had been regular. She suffers a great deal with her menstrual periods since; have had to buy medicine, etc., and never had that trouble before then.”

Mrs. Rutherford testified, in substance, as follows:

“My menstrual period had just come on me that morning, and I caught cold in that car that night. I was not comfortable while in that car, because I was cold and suffering. The. cold settled in my back and ovaries. It left me in a bad condition, and I suffer all the time. Prior to that time, when I was at those periods the suffering lasted from 3 to 5 days. It lasted 9 days that time. The pain I suffered at that time was greater than it was before that time, and has been every time since. Not able to do work now when monthly sickness comes, but could before. Since then pain at periods much greater than formerly. Before then was regular. Since then I come sick too quick all the time, am not regular at all. I never had any trouble like that before that time. My periods are on me much longer now than before. Formerly lasted 3 to 5 days. Now last from 8 to 10 days. Periods come earlier, closer together, last longer, and pain much more intense than formerly. General health affected, and not at all strong now.”

Dr. Langford testified:

“It began to get uncomfortable about 7 or 8 o’clock. It was so cold at that time passengers built a fire. I don’t know how long fire lasted. The condition of car was such that it would have been very apt to hurt a woman with her menstrual period on. The floor of the car was very cold. When a woman has her menstrual period on, it frequently affects her to get her feet cold. The conditions along that line baffles the doctors; sometimes has one effect and sometimes another. It was pretty cold when we got to Stephenville. It would have done a woman no good to haul her over there that night through that cold. Don’t know whether the fire they started went out or not. If a woman has a swelling in her abdomen during her menstrual period, it is caused by congestion of the parts. If this lady had that symptom, she perhaps had congestion of the ovaries.”

In view of this undisputed evidence, we do not think we would be warranted in disturbing the verdict. The amount of damages sustained by appellee was a question of fact for determination of the jury, and, while we regard the sum awarded as large, we are not prepared to say that it is unsupported by the evidence, either as to the amount allowed as having been sustained up to the time of the trial, or as would probably be sustained after that time. The testimony is sufficient to show that about 12 months had elapsed from the date Mrs. Rutherford suffered the injuries complained of up to the time of the trial and the delivery of the testimony. During that time, according to her testimony and the testimony of her husband, the irregularity and increased length of her menstrual periods caused by the negligence of appellant continued without abatement, and she suffered as a result thereof intense pain. The result of appellant’s negligence and the pain incident thereto having continued for such a length of time without any appreciable abatement thereof, it cannot be said as a matter of law that there was no foundation in the evidence for the award of future damages.

Believing that the evidence supports the verdict and that none of appellant’s assignments disclose reversible error, the judgment is affirmed.
      <@s»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, C. J.

text:
    CROSBY et al. v. STEVENS et al.
    (No. 533.)

    (Court of Civil Appeals of Texas. El Paso.
    Feb. 24, 1916.
    Rehearing Denied March 23, 1916.)
    1. Trespass to Try Title @=>44^-Questions eor Jury.
    AVhere plaintiffs’ title depended on whether a certain early grant included the land claimed, and the boundary of the grant was the north bank of a river, it was not error to submit to the jury the special issue whether, at the time of the grant, the land claimed by plaintiffs was on that side of the river, either in whole or in part.
    [Ed. Note. — Eor other cases, see Trespass to Try Title, Cent. Dig. § 66; Dec. Dig. >©=5-14.]
    2. Trespass to Try Title @=344 — Province op Jury — Suppiciency op Evidence.
    In trespass to try title, the burden being upon the plaintiffs, if their evidence was insufficient, clearly to establish title, the jury might disregard it altogether, and therefore submission of the sufficiency of their evidence was proper, whether defendants introduced any evidence or not.
    [E'd. Note. — Eor other cases, see Trespass to Try Title, Cent. Dig. § 66; Dec. Dig. <©=344.]
    3. Boundaries @=336(3) — Evidence — Maps and Plats.
    Recently made maps and plats of lands are of no value in determining a boundary existing 60 years before; such boundary being the bank of a river shown to have shifted since the grant.
    [Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 166, 167; Dec. Dig. @=336(3).]
    4. Trespass to Try Title @=341(1) — Evidence — Suppiciency.
    Evidence held to support the finding of the jury that plaintiffs, in trespass to try title, had no title to the land in question, since it was not included within the grant under which they claimed.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 62; Dec. Dig. @=341(1).]
    5. Appeal and Error @=>1002 — Appeal—Review op Questions op Fact.
    It is not the province of the court on appeal to resolve a conflict in the evidence as to a question of fact.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dec. Dig. @=> 1002.]
    6. Trespass to Try Title @=340(4) — Location op Boundary — Evidence.
    The fact that a deed by a town to which land had been granted included only to a certain line is not conclusive that the deed to the town was of the same extent, although it may be evidence to that effect.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 57, 61; Dec. Dig. <§=> 40(4).]
    7. Trial @=3194(10) — Instructions—Weight op Evidence.
    Instruction, in trespass to try title on issue of mistake in old plat, held not on the weight of evidence, but proper submission of the issues.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 457; Dec. Dig. @=3194(10).]
    S. Trespass to Try Title @=>45(1) — Instructions — Submission 'op Issues.
    Refusal of instruction on sufficiency of evidence as to line of old grant held not erroneous, where giving it would have nullified the issues submitted, and would have been contrary to the evidence in the cause.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 67; Dec. Dig. @=>45(1).]
    9. Trespass to Try Title @=>45(1) — Instructions.
    An instruction, trespass to try title to land alleged to be part of an old grant, that the jury should consider only the boundary as it existed at the time of the grant was not erroneous, as it left the jury free to determine where the boundary was.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 67; Dec. Dig. @=>45(1).]
    10. Trespass to Try Title @=>41(1) — Evidence — Suppiciency.
    Evidence held to support a judgment for the defendants in trespass to try title, where there was no evidence that it was physically impossible for the land to have been located as the jury found it was.
    [Ed. Note. — For other eases, see Trespass to Try Title, Cent. Dig. § 62; Dec. Dig. @=>41(1).]
    11. Trial @=>193(1) — Instructions—Opinion op Judge.
    Instruction, in action to quiet title, held not improper on the ground that it indicated what the findings of the jury should be.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 436; Dec. Dig. @=>193(1).]
    12. Trespass to Try Title @=>45(1) — Instructions.
    Requested instructions, in trespass to try title, which would call for a general verdict, held properly refused; a general verdict in such action not being proper in view of the submission of special interrogatories.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 67; Dec. Dig. @=>45(1).]
    13. Trespass to Try Title @=>7 — Title by Limitation — Evidence.
    In the absence of evidence that one who at one time held title by limitation had assigned it to the plaintiffs specifically as a part of the plaintiffs’ grant, his title by limitation would avail plaintiffs nothing, where they claimed only under a specifically named grant.
    [Ed. Note. — For other eases, see Trespass to Try Title, Cent. Dig. § 10; Dec. Dig. @=>7.]

      14. Trial &wkey;3§62 — Findings of Court — When Error. .
    Under Rev. St. 1911, art. 1985, providing that on appeal an issue not submitted nor requested shall be deemed as found by the court so as. to support the judgment, provided there is evidence to sustain such finding, error cannot be predicated on the insertion of finding's by the court in addition to those of the jury, which were necessary to the judgment, though they need not have been expressly found.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 865-868; Dee. Dig. <&wkey;>362.]
    15. Appeal and Error &wkey;>547(l) — Preservation of Exception — Sufficiency.
    Error cannot be predicated on the refusal of the court to submit requested issues, not made subject to proper assignment of error nor accompanied by proper bills of exception, showing timely and proper application to the court for the submission of the requested issues.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2427, 2429, 2430; Dec. Dig. &wkey;547(l).]
    16. New Trial <&wkey;157 — Motion—Necessity of Answeb.
    Allegations of fact in a motion for a new trial, supported by affidavit, need not be answered or denied, and will not be taken as confessed, nor need the court grant the motion in the absence of denial.
    [Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 314, 317, 318; Dec. Dig. &wkey;157.]
    17. Appeal and Error <&wkey;933(5) — Presumptions — Decision of Trial Court — Motion fob New Trial.
    Where, on appeal from a judgment overruling a motion for a new trial, the record shows no testimony taken in relation to facts not supported by affidavits accompanying the motion, it will be presumed that the court was correct in overruling the motion.
    [E'd. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3425, 3426, 3475; Dec. Dig. &wkey;933(5).]
    18. Appeal and Ereob &wkey;>933(l) — Presumptions — Acts of Trial Judge.
    Although it appears that during a trial the trial judge was taken sick, but there is no admission or proof that he was too ill intelligently to pass upon a motion for new trial, it will be presumed„that he was, in spite of his illness, still possessed of a fair degree of intelligence, and that he exercised it.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3772; Dec. Dig. <&wkey;933(l).]
    19. Adverse Possession &wkey;>57 — Evidence-Sufficiency.
    Where plaintiffs claimed title to land by adverse possession under a certain grant and the jury found that that grant did not include the lands sued for, the question of sufficiency of time to establish title by limitations was immaterial.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 277, 278, 655, 667, 687; Dec. Dig. <5&wkey;57.]
    ..20. Jury <&wkey;32(2) — Number—Agreement.
    Under. Rev. St. 1911, art. 5214, requiring a jury to consist of 12 men, but providing that the parties may agree to try with a less number, a jury of 11, obtained by agreement, is a legal and complete jury.
    [Ed. Note. — For other cases, see Jury, Cent. Dig. § 222; Dec. Dig. <@=^32(2).]
    21. Trial <&wkey;323 — Verdict—Signature—Sufficiency.
    Where a jury of 11 is agreed upon, it is not necessary that each of the 11 sign the verdict, but the signature of the foreman alone is sufficient.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 759; Dec. Dig. &wkey;323.]
    22. Appeal and Error &wkey;>218(l) — Presentation of Objections — Sufficiency of Verdict.
    Where a party failed, on rendition of a verdict by 11 jurors, to object to their failure to sign the verdict, it could not, for the first time on appeal, complain thereof, if it was error.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1315-1319, 1321, 1323; Dec. Dig. <&wkey;>218(l); Trial, Cent. Dig. §§ 818, 875.]
    23. Trial t&wkey;323 — 'Verdict—Signature—Sufficiency.
    Where all the members of the jury in open court acknowledged that the verdict returned was their verdict, signature by all of them was unnecessary.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 759; Dec. Dig. <&wkey;323.]
    24. Jury <&wkey;149 — Interlocutory Orders — Powers of Court.
    Where there is no judicial determination that a juror is ill, but the parties merely agree, on information that he is ill, to go to trial with 11 jurors, the court properly refused to enter a formal order, finding that the juror was ill.
    [Ed. Note. — For other cases, see Jury, Cent. Dig. §§ 635-637; Dec. Dig. t@=^149.]
    25. Jury <s=^149— Interlocutory Orders — Powers of Court.
    Since a court has control over its orders during the term, though an order declaring a juror ill was filed, it could be withdrawn at any time dui'ing the term of the court.
    [Ed. Note. — For other cases, see Jury, Cent. Dig. §§ 635-637; Dec. Dig. &wkey;149.]
    26. Motions <&wkey;56(l) — Orders — Powers of Court.
    In the absence of evidence that the facts stated in a proposed order are true, it cannot be held that the court was in error in refusing to file it.
    [Ed. Note. — For other cases, see Motions, Cent. Dig. § 67; Dec. Dig. &wkey;s56(l)J
    27. Trial <&wkey;304 — Conduct of Jury — Improper Conduct — Secret Ballot.
    It is not improper conduct for a juryman to remark to the jury that he had friends on both sides, and therefore wanted the ballot to be secret, where it did not appear that the verdict was in any way improper.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 725-727; Dec. Dig. &wkey;304.]
    28. Appeal and Error <&wkey;837(7) — Matters Reviewable — Speculation.
    Where error is assigned to the refusal of a new trial because the jury received material communications, the exact character of which was unknown to the appellants, the court on appeal could not review the order, since review would necessarily be based on speculation.
    [Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. <&wkey;>837(7).]
    29. Trial <&wkey;344 — Impeachment of Verdict —Evidence of Jurors.
    The verdict of the jury cannot be impeached by affidavits or evidence of the jurors that there was a mistake of fact entering into the verdict.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 813; Dec. Dig. <&wkey;344.]
    Appeal from District Court, El Paso County; Dan M. Jackson, Judge.

      Action by Josephine Crosby and others against H. B. Stevens and others. Judgment for defendants, and plaintiffs appeal.
    Affirmed.
    See, also, 166 S. W. 62.
    M. W. Stanton, D. Storms, and McBroom & Scott, all of El Paso, for appellants. T. A. Ealvey, Millard Patterson, J. A. Buckler, and V. C. Moore, all of El Paso, for appellees.

      Application for writ of error pending in Supreme Court.

   HARPER, C. J.

Appellants instituted this suit,in the form of trespass to try title to the lands described in their trial petitions; also pleaded that they have title by the statutes of limitations of 3, 5, and 10 years. Appellees answered by pleas of not guilty, general denial, and by cross-action and plea in reconvention, interpose the statutory form of trespass to try title, and also assert title by virtue of the 5 and 10 year statutes of limitation. In other words, appellants seek to establish the boundary line between that portion, described by metes and bounds, of a tract of land known as the Ascarate grant claimed by them and that portion of a tract, also described by metes and bounds, known as the Ysleta grant, claimed by appel-lees, and it was agreed that the record title to the lands was in the parties asserting it-, if, in fact, shown to be situated within the limits of said grants.

In order that we may definitely define the question to be determined in this suit, it is thought advisable to, in a way, detail the history of the two tracts of land. The Legislature of Texas in 1854 (Sp. Acts 5th Leg. c. 30) passed the following act:

“An act to relinquish to the inhabitants of Ysleta, in El Paso county, a certain tract of land adjoining the town tract now held and owned by said inhabitants.
“Whereas, by a change in the channel of the Rio Grande, in the year eighteen hundred and thirty-one or thirty-two, the citizens of the town of Ysleta were deprived of a large portion of the grant of land made to them by the government of Spain, and a portion of the town tract belonging to the inhabitants of Cinecue was left' on the east side of the Rio Grande, therefore,

“Section 1. Be it enacted by the Legislature of the staté of Texas, that the state of Texas hereby relinquishes to the inhabitants of the town of Ysleta, in the county of El Paso, all the right which is now vested in the state to the tract of land lying on the east side of the Rio Grande, above the town tract of Ysleta, which formerly belonged to the said inhabitants of Cinecue, commencing at the northwest corner of the town tract of-Ysleta on the Rio Grande; thence up said river with its meanders to the point where the Rio Grande and the Rio Viejo separate; thence down the east bank of the Rio Viejo, to the southwest corner of survey number twelve, located in the name of T. H. Dugan; thence north with the east line of said survey to where it crosses the northern line of the Cinecue tract; thence east with the north line of the Cinecue tract, to the northwest corner of the Ysleta tract; thence along said line to the place of beginning, supposed to contain about two leagues.

“Sec. 2. This act shall not be construed so as to affect any vested right now held to said tract by any person whatever.
“See. 3. The Commissioner of the General Land Office is hereby required to issue a patent, in the name of the inhabitants of Ysleta, to the tract of land described in the first section of this act, provided there is no evidence of conflicting claims on record in the General Land Office.
“Sec. 4. This act shall take effect and be in force from and after its pass'ige.
“Approved, January 31, 1854.”
In 1858 the following act was passed (Acts 7th Leg. c. 120):
“An act to relinquish the right of the state to certain lands therein named.
“Section 1. Be it enacted by the Legislature of the state of Texas,-that the state of Texas hereby relinquishes all right and interest in the following described lands, to the original grantees 'thereof, their heirs, and legal assigns, to wit: In the county of El Paso * * * 4. To Juan and Jacinto Ascarate, three leagues of land, called ‘El Rancho de Ascarate.’
“See. 2. That it shall be the duty of the several claimants to the lands named in this act, to have the same surveyed by the district or county surveyor of said county, which survey shall in all respects conform to the metes and bounds designated in the original grant, and upon the return of the field notes thereof to the General Land Office, the Commissioner of the General Land Office is hereby authorized and required to have the same plotted on the proper map in his office, and issue patents for the same in accordance with existing laws.
“Sec.-3. That the confirmation herein extended to the lands named in this act, shall in no way be construed to interfere with any rights which may have accrued to other parties before the passage of this act. Provided, that nothing in this act shall be so construed as to relinquish the right of the state to any of the islands or salt lakes situated in the county named in this act.
“Sec. 4. That this act take effect qnd be in force from and after its passage.
“Approved, February 11, 1858.”

These acts fix the boundary line between the two grants to be the east (more properly north) bank of the Rio Viejo, as it was in 1854, the date that the first, the Ysleta grant, was relinquished or confirmed. The case was tried by jury, submitted upon special issues, and resulted in a verdict and judgment fo.r defendants, from which this appeal is perfected.

The opinion in a former appear of this case is reported in 166 S. W. 62, and to which we refer for matters of detail in the statement of the case not contained herein. We take up the assignments in the order which seems most appropriate.

Appellants’ ninth assignment raises the following questions:

“(a) The judgment and verdict are erroneous, because without evidence to support them; (b) are against the weight and overwhelming preponderance of the evidence; (c) and is the result of prejudice and passion ; (d) or other improper motive of the jury; (e) and in any event the result of a total disregard by the jury of the evidence introduced in the cause; (f) that the banks of the Rio Viejo were fixed by original surveys;' (g) established by resurveys made by engineers acting for both plaintiffs and defendants ; (h) that the northerly and easterly line or boundary of the survey of defendants, as described in the pleadings, could not have been located at the north bank of the Rio Viejo, as it was located in 1854; (i) the effect and probative force of maps, plats; field notes and elevations attached to pleadings; (j) that the line was established by unambiguous calls for certain known and established natural and artificial objects; (If) the probative value of the testimony of non-expert witnesses, etc. Rule 29.”

But after mature deliberation, we liave concluded that it was intended to simply raise the question presented in the next two assignments.

The tenth is that the court erred in submitting special issue No. 1, because there is no evidence to warrant the court in giving it. The eleventh is that the finding of the jury in response to.issue No. 2 is wholly without evidence to support it. Issues 1 and 2, as submitted by the court and the answers thereto, are as follows:

“First. Do you find from the preponderance of the evidence that all of the land described in the plaintiffs’ third amended original petition filed herein on May 8, 1915, in connection with their trial amendment is northerly of the north bank of the Rio Viejo, as it was in 1854? Answer yes or no. Answer: No.
“If you have answered the foregoing question No. 1 in the negative, then, but not otherwise, the court submits for your determination this additional question:
“Second. Do you find from the preponderance of the evidence that any part of the land sued for and described in the plaintiffs’ third amended original petition, filed herein on May 3, 1915, in connection with their trial amendment, lies northerly of the north bank of the Rio Viejo, as it was in 1854? Answer: No.”

These issues do not require the jury to determine and fix the exact location of the east or northerly bank of the Rio Viejo, as it was in 1854, except in a negative way, that is, by the findings, they have determined that the lands sued for, being described by metes and bounds in plaintiffs’ petition, are not north of the said bank; therefore it amounts to a finding that the lands described are not in the Ascarate grant, and, not being in the said grant, must of necessity be in the Ysleta grant. The plaintiff had the burden of establishing that the lands described by them were in the Ascarate grant by a preponderance of the evidence, for by so doing alone could they obtain a verdict and judgment as against the defendants, so necessarily this question had to be submitted, even though the defendants introduced no evidence, for it was within the province of the jury to discard all of plaintiff’s evidence, if from it they could not determine that the lands sued for were in the Ascarate; so it follows that the court did not err in submitting the issues.

This, then, brings us to the question raised by the eleventh: “Is there any evidence to support the finding?” And we answer in the affirmative. The mass of maps and plats in the record are of no value in determining the exact location of the east or northerly bank of the Rio Viejo upon the ground, except in so far as it be proven by witness who run the lines, or who were present and witnessed the work of running the lines, that the calls for course and distance, which are the basis of the maps or plats, actually, on the ground, reached the bank in dispute. And since all these maps are (compared with 1854) of recent make, they are only of value to the extent that they may be verified by witnesses as correctly locating the bank of the Rio Viejo at the time fixed by the Legislature, 1854. Especially is this true in view of the fact that many witnesses testified (and it seems to be conceded) that there were many old river beds across the land in controversy. As we understand the contentions of the parties, the lands described by the plaintiffs lie south of the points of the foothills, and that described by the defendants between the south line fixed by plaintiffs and the points of the foothills, which (points) defendants claim compose the east or northerly bank of the Rio Viejo as it was in 1854. And these points of foothills are 'found to be the dividing line between the surveys by the verdict of the jury. Is there, then, any evidence to support this finding?

The surveyors who made the maps and plats introduced in evidence by defendants testified that they made the surveys upon the ground in accordance with the field notes contained in defendants’ cross-action; that the calls for course and distance reached the points of these foothills as shown upon the maps, and that there was a well-defined old river bed there of which the points of foothills formed the north bank. And other witnesses testified that they were present when some of these surveys were made and substantially corroborated the surveyors. Again, several witnesses testified to being 80 to 85 years of age; that they were born in Ysleta or Socorro; that they remembered the time the river changed; and that it ran against the foothills, beginning at about the northwest comer of the lands contended for by defendants.

Parker Burnham, who testified that he came to El Paso in 1859, a stage driver for the Butterfield Overland route, described in detail the point where the river first ran against the foothills, and how it ran, etc. It could serve no good purpose to quote this evidence at length, so we refrain from doing so, but from what has been quoted, it shows that there is abundant evidence in the record to support the finding by the jury.

Appellants contend that the verdict is not based upon the evidence, because, by the field notes of defendants, acres of land are upon the mesa. This may be so, but witnesses have testified both ways, and we are not here authorized to determine the question.

If we understand, appellants contend further that, by the Tays’ survey and map of Ysleta tract, Eubank’s survey, and map and deeds made to different parties by the town of Ysleta, the line has been fixed. The answer is that Eubank and Tays and the mayor and other officials of Ysleta could have made a mistake as well as any other, as to the exact location of the bank of the Rio Viejo, contended for, and if the town deed did not extend the lines in the Harris tract, for instance, to tlie north line of the grant, it might be evidence of the location of the boundary line, but not conclusive proof, and there is no attempt by appellants to invoke the rule of estoppel.

We adopt the last above observations in overruling the eighteenth assignment, which urges that the trial court erred in giving special charge No. 2, at the request of defendants, which reads:

“That though you may believe from the evidence that when Tays’ deed, introduced in evidence, and the Tays’ map, was made, the town of Ysleta and J. W. Tays believed that the Rio Viejo, was along the line called for in the /Tays’ deed, if you further believe from the evidence that the Rio Viejo was in fact north of said course mentioned in the Tays deed, you are charg'ed that such mistake should not affect you in your findings as to the location of the north bank of the Rio Viejo.”

This charge was not upon the weight of the evidence, but left the jury to find from the evidence adduced upon the instant trial whether, in fact, there had been a mistake, and, if so, it could not change the location of the Rio Viejo.

The twelfth is that the court erred in refusing to submit for plaintiff the following special instruction:

“In determining issues 1, 2, and 3, you would not be warranted by the evidence in this cause in finding that the north 'bank, of the Rio Viejo as it existed on the ground in the year 1854 was located on the north line of the property in controversy and above the bank or foothills, as shown by the undisputed evidence in this cause.”

It is apparent that the submission of such a charge would have nullified the issues submitted. As held above, the undisputed evidence does not show that any lands upon top of the foothills were included in the description contained in appellees’ answer.

The trial court did not err in giving special charge No. 3, as urged in the thirteenth, fourteenth, sixteenth, and seventeenth assignments. The charge is:

“You are charged that if you believe from the evidence that in the year 1854, and prior to that time the east ’bank or northeast bank of the Rio Viejo was at the north line of the tract claimed by defendants in this cause, any change that may have occurred in the line of the north bank of the Rio Viejo after that time, or after the xime of its separation from the Rio Viejo, would be entirely immaterial.”

Because it simply directed the minds of the jury to the issue in the case—the location of the river in 1854—and left them free to determine it.

The fifteenth assignment is:

“The court .erred in entering said judgment upon the motion of defendants and finding of the jury, as set forth in that portion of the judgment describing the land as in the Ysleta grant No. 2: (a) For the reason that same is not based upon the findings of the jury; (b) because the court is .not warranted in making said recitals or findings of fact; (c) and because it is a physical impossibility that all of the land in the description set forth in the judgment is in fact situated within the boundary of Ysleta grant No. 2; (d) that said findings and judgment are not supported by the evidence, for the reasons stated in the motion for new trial heretofore adopted.”

The proposition urged is that it appears that it was a physical impossibility for all of the lands described in the pleadings of plaintiffs to be within the Ysleta grant No. 2. This proposition is disposed of by the observations under the tenth and eleventh assignments.. It was the duty of the court under the findings, to enter a final judgment.

The nineteenth assignment is:

“The court erred in giving to the jury, upon request of defendants, special instruction No. 4, of defendants, whereby the court instructed the jury that, ‘You are instructed that the land in controversy in this cause is the parcel lying between- the line described in plaintiffs’ third amended original petition, in connection with their trial amendment filed in this cause on May 28, 1915, and the north line of the land described and claimed by defendants in their third amended original answer in this cause,’ for the reason that same is a repetition of the general charge of the court, as, to the land in controversy, and tends to place undue stress upon the fact as to what is the land in controversy, and thus lead the jury to believe, under contentions of the defendants made in this cause, and evidence introduced, that it is necessary that plaintiffs prove what is known as the ‘red line’ to be the north bank of the old river, and the exact location of same, in order to recover in said cause.,”

We fail to see bow the court could, by any number of repetitions, lay undue stress upon the fact of wbat the land in controversy is, so as to in any way influence the jury in their findings as to a boundary line. It says nothing about a “red line,” or any line, in fact. The instructions left the jury to find that the boundary line was where plaintiffs claimed it to be, or, anywhere north of there; therefore left the jury to determine whether plaintiff should recover all, or a part, or none, of the lands sued for, and the charge in no way indicates what their findings should be. But suppose it did give undue prominence to the red line; that is the line to which plaintiffs claim and the defendants repudiate; for that reason it could in no way affect the plaintiffs’ cause.

By assignments 20, 21, 22, and 23, the appellants urge that the court erred in refusing to submit the special issues requested by appellants, upon the question of the 10-yedr statute of limitations. The only special issue requested by plaintiffs to support the assignments is as follows:

“You are further instructed that article 5075 of the Revised Statutes of Texas provides that: ‘Any person who has the right of action for the recovery of any lands, tenements, or heredita-ments against another having peaceable and adverse possession thereof, cultivating, using or enjoying the same, shall institute Ms suit therefor within ten years after his cause of ■ action accrues and not thereafter.’ You are also further instructed that the possession of a coten-ant in law inures to the benefit of and is in law the possession of his eotenant or cotenants.
“You are further instructed in this connection that if you find from, the preponderance of the evidence that G. S. Babbett, for himself and cotenants of the Asearate grant, was in peaceable, eontinuous, and advei'se possession of the land in controversy, claiming to the boundaries of the said grant, as shown by the patent introduced in evidence before you, cultivating, using, and enjoying the said land and claiming to own the same for the period of 10 years before the 6th day of July, 1909, the date of filing suit, and that the land in controversy is situated in the boundaries of the Ascarate grant, as shown by the patent, then and in that event the plaintiff would be entitled to recover the said land, even though you may have found, under the issues submitted to you in the general charge, that the defendants had theretofore acquired title by limitations to the land in controversy, prior to 1898, and in this connection the court submits for your determination the following additional special issue:
, “Do you find from the preponderance of the evidence that the said O. S. Babbett was in possession of the land as hereinbefore instructed for a period of 10 years after the year 1897, and prior to the 6th day of July, 1908?”

This constitutes a general special charge, and calls for a general verdict. As such, it would have been improper to give it. H., T. O. Ry. v. Kincheloe, 56 Tex. Civ. App. 123, 119 S. W. 905. Moore v. Pierson, 100 Tex. 114, 94 S. W. 1132; Id., 93 S. W. 1007.

But if the latter portion of the charge is a proper special issue in form, there is no positive evidence in this record that we can find, and counsel have cited none, that Babbitt was occupying the land for the joint owners of the Ascarate, and if he were not, any limitation that may have accrued to him would not inure to the benefit of such, unless he, by deed, conveyed his right so acquired to them. This has not been done, so far as this record discloses. The pleadings of the substituted plaintiffs recite that they have acquired all of Babbitt’s interest in the As-carate grant, but says nothing of any interest in the Ysleta grant, where the jury now find the land sought to be recovered by limitation is situated; so, if it was not in the Ascarate grant, Babbitt and the other plaintiffs were not joint tenants.

Assignments 21, 22, and 23, being to the same effect, are overruled for the same reasons.

The twenty-fourth is that the court erred in inserting in the judgment—

“that it was the conclusion of the court, not only from the findings of the jury, but from all the evidence, that defendants were entitled to recover.”

This assignment is followed by several propositions, but they all seem to be directed to the same point, viz., that article 1985, Rev. Oiv. Stat. 1911, does not authorize the trial court to make findings of fact in addition to those made by the jury. This statute provides that:

“Upon appeal * * * an issue not submitted and not requested by a party to the cause, shall be deemed as found by the court in such manner as to support the judgment; provided, there be evidence to sustain such a finding.”

So it is apparent that it was not necessary for the court to enter the words complained of in its judgment, for it (the judgment) to be a final disposition of the issues not submitted, unless same were requested; but in this connection, appellants urge that the issue of limitation of 10 years was requested to be submitted; therefore the court was not ■ authorized to make this finding in its judgment. As held under the next preceding as-signmehts, the trial court did not err in refusing the charge requested, because: First, it was not in proper form for submission of a special issue; and, second, the facts did not justify the submission of the issue.

By one of the propositions under this assignment, it is suggested that other issues were not submitted, though requested. If so, the refusal of the court to submit these other issues should be presented to this court by proper assignments of error, complaining of such refusal, accompanied by proper bills of exception, showing timely and proper application to the court for the submission of such issues. Ins. Co. v. Shearman, 17 Tex. Oiv. App. 456, 43 S. W. 930; Moore v. Pierson', 100 Tex. 113, 94 S. W. 1132.

The twenty-fifth:

“The trial court erred in overruling the amended motion for a new trial and in arrest of judgment presenting issues of fact as to misconduct of the jury, and other issues of fact, and by holding that it was not necessary in law for defendants by contest or answer to tender issues upon said motion.”

It is news to us that allegations of fact in a motion for a new trial, supported by affidavit, must be answered and denied, or be taken as confessed, and require the court to grant the motion. Anyway, we have carefully read the motion for a new trial, and conclude that if all the matters alleged and supported by affidavits were admitted to be true, the trial court did not err in overruling the motion upon those grounds. And counsel have not referred us to any testimony taken by the court in relation to the facts alleged not supported by affidavit. Therefore, it will be presumed that the court did not err in overruling motion.

The twenty-sixth is as follows:

“It appearing from the undisputed evidence that the trial judge became exceedingly ill before completing the hearing and passing upon the amended motions for a new trial, filed in said cause by plaintiffs, and that such illness constitutes in. law an unavoidable accident or casualty, for which plaintiffs were not responsible and could not avoid in the exercise of the highest diligence; that by reason of such illness the trial judge or court was unable to consider intelligently and pass upon the motions of plaintiffs for a new trial and in arrest of judgment, by hearing a full presentation of same—the appellate court should therefore reverse and remand said cause for a new trial, as fully appears from plaintiffs’ bills of exceptions, approved and filed in said cause.”

The record shows that the motion was considered and overruled; that by the judge’s bill of exceptions he admits he was taken ill, but there is no admission or proof that he was too ill to intelligently pass upon the motion. In the absence of both we will presume that the trial judge was, even though sick, still possessed of a fair degree of intelligence, and that he exercised it in this instance.

The twenty-seventh, twenty-eighth, and twenty-ninth assignments charge error in excluding the testimony of certain witnesses concerning the possession of the lands claimed by defendants, in fact, upon the issue as to whether the defendants had title to the lands claimed by them by virtue of the 10 years’ occupancy. Since the jury have found that the lands claimed by defendants were not on the Ascarate grant, the question of the limitation title of defendants is immaterial.

The thirtieth assigns as error the fact that the court submitted charges upon the question of limitation in favor of defendants, and is overruled for the reason given next above.

The first and second assignments charge that the verdict and judgment are void because one juror was excused by the court, and the verdict was not signed by all of the remaining jurors. The court’s hill of exceptions recites that during the trial of the case between the adjournment on Saturday and time to convene on Monday morning, he had been informed that the juror in question was sick and unable to further sit in the case; that he told the counsel for both sides what he had heard before resuming trial on Monday morning. Different remarks by counsel for both sides are recited as having been made in the presence of the court, but finally one counsel for each plaintiff and defendant said, “We’ll leave it to the court.” The court then remarked that, if left to him, he would excuse the juror, which was done, and the trial proceeded with 11 jurors for several days. The cause was submitted upon special issues. The verdict was returned into court signed only by the foreman. It was read aloud in open court. Appellants’ counsel then and there stated that he would then make no statement with reference to the verdict. The court then asked the jury, “So say you all of you?” to which inquiry they assented, and thereupon the verdict of the jury was received and the 11 jurors discharged. The record further reveals that the first time any objection was made to the fact that all the jurors had not signed the verdict was upon written objection to appellees’ motion to enter judgment for them upon the verdict rendered. This constitutes consent upon the part of appellants for the verdict to be returned signed as it was.

Article 5214, Revised Statutes of 1911, reads:

“The jury in the district courts shall be composed of twelve -men; but the parties may by consent agree, in a particular case, to try with a less number.”

Since the parties agreed to try the case with less than 12 jurymen, the 11 agreed upon constitutes a legal and complete jury. In such cases, all that is required is that the verdict be signed by the foreman. Lumber Co. v. Hancock, 70 Tex. 315, 7 S. W. 724; Gray v. Freeman, 37 Tex. Civ. App. 556, 84

But if we are in error in holding that the acts and statements of appellants in open court amount to an agreement to excuse the juryman, no exception was taken to the fact that only one had signed it, before they> were discharged, when, if there had been, the court could have had them all sign it. The appellant is not now in a position to complain. Quanah Ry. Co. v. Jones Lbr. Co., 178 S. W. 801; Dunlap v. Raywood C. & M. Co., 43 Tex. Civ. App. 269, 95 S. W. 44.

Besides, ali the members of the jury declared the verdict to be the one agreed to by them, and in such case, the formality of signing is waived. Northern Pacific Ry. Co. v. Ulin, 158 U. S. 271, 15 Sup. Ct. 840, 39 L. Ed. 977.

The third and fourth are that the court erred in refusing to enter up an order which was prepared by appellants, following his act in excusing the juror, which recites that the juror was excused on account of illness — the proposition being that the order was approved by the court, placed in the hands of the clerk, and afterwards withdrawn by the court; that it had, by the act of approval and placing in the hands of the clerk, become a part of the record, and could not be set aside except upon motion filed for that purpose. The facts enumerated in the observations under the foregoing assignments copied from the bill of exceptions prepared by the court in relation to the same matter show that there was no judicial determination of the question of illness of the juror; that there was no evidence taken to determine whether the juror was sick or not, but, as stated above, the facts show that he was excused by consent of the counsel for the parties plaintiffs and defendants, without any investigation in open court. This being true, the court could not properly enter an order determining that the juror was sick, and if the order had been entered, the court having control over his orders during the term, could revoke same upon his own motion. Raley v. Sweeney, 24 Tex. Civ. App. 620, 60 S. W. 573.

There is no contention upon the part of appellants that the facts stated in the order were true, but on the other hand, the statements of fact contained in the bill of exceptions — not controverted by appellants'— above qdoted, show that the court did not excuse the juror on account of illness judicially determined, but because of the agreement of the parties, expressed in open court in the presence of the court. It was therefore not error to direct the clerk not to enter the order. The record does not show that the fact recited in the proposed order, “The witness was excused on account of sickness,” was true, and appellants do not cite us to any evidence.

Fifth and sixth:

“The court erred in not granting motion for new trial on account of misconduct of the jury.”

Tile acts charged to be misconduct are that one of the jurors, after they had retired to consider their verdict, stated to the others that he had friends among the plaintiffs and friends among the defendants, and thereupon suggested and obtained an agreement from all the other 10 jurors that none of them should state how any of the jurors had voted, nor how they had obtained a verdict ; should keep the proceeding secret, etc. There is no attempt to show that the jury arrived at a verdict in any way improper, and, as to keeping secret the vote taken, this must necessarily be disclosed when the verdict was rendered.

The seventh is that the court should have granted a new trial because the jury, after retiring to consider their verdict, received material communications and evidence, the exact character of which is unknown to plaintiffs, “etc.” If the plaintiffs do not know the exact character of the communications, how do they know that they were material, and how could we tell whether communications were made, and, if made, that they were material and likely influenced the verdict, unless we bring to bear upon the question our telepathic powers? The telepathic powers of the members of this court are wonderfully and fearfully developed, and no doubt we could, had we been informed that the jury were out, at the proper time, so that we could have had direct mental communication with them, have reached them and have made the discovery, but at this late date, it taxes our powers too greatly to undertake it, and we refuse.

The eighth complains that in support of their motion for a new trial they offered to prove by the jurors that there had been a mistake of fact by the jurors in rendering their verdict. Verdicts of juries in civil cases cannot be impeached by aflidavits or testimony of the jurors themselves. Railway Co. v. Ricketts, 96 Tex. 71, 70 S. W. 315. Especially must this rule apply to instances such as presented here. After the jurymen had been discharged from service, so counsel would have them testify, they discovered that a mistake of fact had been made — how was it discovered? From evidence or argument of counsel heard out of court? It must have been by reason of one or the other or both, for by propositions and argument it is revealed that the matter sought to be proven by them was that they did not intend to find the line to be upon top of the mesa. That was a disputed question of fact, evidenced both ways; and, as we view the record, there is ample evidence to support the finding of the jury, as made. If jurymen were permitted to impeach their verdicts in this way, few cases would be ended with one verdict of a jury.

Finding no error in the record, the assignments of error are overruled, and the cause affirmed.
      @=>Por other cases see same topic and KEY-NUMBER in. all Key-Numbered Digests and Indexes

      &wkey;»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes