text:
    KIMBALL v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 22, 1913.)
    1. • Burglary (§ 41) — Evidence — Weight and Sufficiency.
    Evidence that a house was broken into and goods taken therefrom, that accused and his companion, when accosted by the officers, admitted the taking, or at least informed the officers where the goods were, accompanied the officers to such place, and turned the goods oyer to them, and that accused was wearing a stick-pin, which was one of the articles stolen, supported a conviction for burglary; there being no controversy as to an entry by force.
    [Ed. Note. — For other cases, see Burglary, Cent. Dig. §§ 94-103, 109; Dec. Dig. § 41.]
    2. Criminal Law (§ 954*) — Motion fob New Trial — Specification of Ebbobs.
    A motion for a new trial on the ground that the court erred in his charge to the jury is too general, not pointing out what part of the charge was erroneous, or in what respect.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2341, 2363-2367; Dec. Dig. i 954.]
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    Oscar Kimball was convicted of burglary, and be appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.

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

   DAVIDSON, J.

Appellant was convicted of burglary; Ms punishment being assessed at two years’ confinement in the penitentiary.

The case is one of circumstantial evidence. The facts show that the house was broken, entered, and goods taken from it belonging to the alleged owner. Appellant and his companion, when accosted by the officers, admitted taking the goods, or at least informed the officers where the goods were, and to which place they accompanied the officers and turned the goods over to said officers. Appellant was wearing a stick-pin, which was one of the articles stolen.

There are no bills of exception in the record. There are three grounds in the motion for new trial — the first being, the verdict and judgment are not supported by any legal evidence and are against the great weight and preponderance of the evidence; second, because the court erred in admitting evidence ; and, third, because the court erred in its charge to the jury. There are no bills of exception reserved to the admission of any evidence, and the above is the entire statement in the motion for new trial in regard to this matter.

The statement in the third ground; that the court erred in his charge to the jury is too general. It does not point out anything, or what part of the charge was erroneous, nor in what respect. We are of opinion that the circumstances are sufficiently strong to show that appellant was guilty of taking the property which was found in his-possession and turned over to the officers. There was no controversy as to the entry into the rooms by force.

The judgment is affirmed.


source: Caselaw Access Project

author: DAVIDSON, J.

license: Public Domain

text:
    THOMAS v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 22, 1913.)
    Criminal Law (§ 1023*) — Appeal — County Court Judgment — Affirmance of Justice of the Peace.
    Where accused was convicted of an offense before a justice of the peace, and his conviction affirmed on appeal to the county court, the judgment of that court was final, and no' further appeal would 1⅛ to the Court of Criminal Appeals, as provided by Rev. Code Cr. Proc. art. 87.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2583-2598; Dec. Dig. §. 1023.*]
    Appeal from Wichita County Court; C. B. Felder, Judge.
    Walter Thomas was convicted of an offense, and he appeals.
    Dismissed.
    C. E. Lane, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

This case, it seems, arose in the justice court, where a conviction was had, and thence appealed to the county court, and appellant was again convicted. The fine is not in excess of $100. TMs, under the' statute, makes it final in the county court. Unless the fine exceeds $100, it becomes final in the county court, when appealed from the justice court to the county court. See article 87, Revised Code of Criminal Procedure.

This appeal, therefore, must be dismissed on the motion of the Assistant Attorney General; and it is accordingly so ordered.


author: HARPER, J.

text:
    RAMOS v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 22, 1913.)
    1. Criminal Law (§ 1090*) — Appeal—Record— Matters Reviewable.
    The denial of a motion for a new trial, on the grounds that the court erred in submitting murder in the first degree and that the evidence was insufficient to sustain the verdict, could not be reviewed, in the absence of bills of exception and statements of fact.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.*]

      2. Criminal Law (§ 1120*) — Appeal—Record— Matters Review able.
    The ineompetency of a witness to testify •could not be reviewed, where no evidence as to his ineompetency accompanied the record.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2931-2937; Dec. Dig. § 1120.*]
    Appeal from District Court, Hardin County; L. B. Hightower, Judge.
    Simon Ramos was convicted of murder in the first degree, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was prosecuted ■and convicted of murder in the first degree, and his punishment assessed at imprisonment in the penitentiary for life.

No bill of exception or statement of facts accompanies the record, and no ground is assigned in the motion for a new trial we can review, in the absence of a statement of facts. The first ground in the motion is that the court erred in submitting the issue •of murder in the first degree, and another is that the evidence is insufficient to sustain the verdict. All understand that with no evidence before us we cannot review these •questions.

The only other ground in the motion for a new trial is that the witness John Salter was incompetent to testify. No evi•dence as to his ineompetency accompanies the record.

The judgment is affirmed.


text:
    STEWART v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 22, 1913.)
    1. Larceny (§ 58) — Appeal—Review—'Verdict-Weight oe Evidence.
    The testimony of the owner of a stolen horse, positively identifying an animal found in the defendant’s possession as his own, is sufficient to sustain a conviction on appeal, even though the preponderance of the evidence is the other way.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. § 166; Dec. Dig. § 58.]
    2. Larceny (§ 77) — Prosecution — Instructions— Circumstantial Evidence.
    Where the prosecution relies for conviction solely upon evidence that the stolen horse was found in the defendant’s possession, and that he gave a false explanation of where he got it, the evidence is wholly circumstantial, and it is reversible error for the court to refuse to charge the jury to that effect.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 199, 202-204; Dec. Dig. § 77.*]
    Appeal from District Court, Fisher County ; Jno. B. Thomas, Judge.
    Frank Stewart was convicted of horse stealing, and he appeals.
    Reversed and remanded.
    C. P. Woodruff, of Sweetwater, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was eonvicted of the offense of theft of a horse, and his punishment assessed at two years’ confinement in the state penitentiary.

Appellant earnestly insists that the evidence is insufficient to sustain the conviction, in that the evidence does not show that the horse found in his possession was the horse stolen from Mr. Collins. While we might say that the preponderance of the evidence is that the horse found in appellant’s possession is not the Collins horse, yet A. B. Collins positively identifies the animal as his horse, and if the jury believed his testimony, it would sustain a conviction, if the issues had been properly submitted by the court in his charge. The evidence relied on to prove that appellant stole the horse is that the horse was found in his possession in August, after it had been stolen in April; that he knew the Collins horses, and when his possession was first challenged alleged a purchase from a man unknown to him.

The court properly submitted the question of purchase, and the verdict of the jury is against that contention, but the fact remains, as contended by appellant, that the evidence which tends to show that he is the person who stole Collins’ horse is wholly circumstantial, and the court should have so charged the jury. No one saw appellant take the horse from the pasture. His being found in possession of a stolen horse four months after it was stolen was a circumstance tending to show that he was the person who had stolen it; that he gave an account of his possession, which the jury evidently believed was untrue, was another circumstance; that he knew Collins’ horses was still another circumstance; but that he was guilty of the original taking is proven by circumstances only, and, such being the evidence, under all our decisions the court should have charged on circumstantial evidence. In the case of Faulkner v. State, 15 Tex. App. 117, this court said: “It has been thought by some that possession of property recently after the theft, unexplained, relieved the case of its circumstantial character; or, in other words, that such possession was not presumptive proof, but positive. To this we cannot agree. From such possession, the inference or presumption is made that the party in possession was the taker. * * * Now if A. sees B. take the horse, this is positive evidence of the taking; but if A. sees B. in possession of the horse recently after the taking, * * * this is a circumstance from which the deduction, inference, presumption, may be made that B. was the taker. We are not discussing the sufficiency of such evidence; this depends upon all the facts in the case. We are of the opinion that the evidence upon which the appellant was convicted is purely circumstantial, and that therefore the trial judge should have charged the jury the law applicable to such a case.” This has always been the rule in this court, and the trial court erred in not so instructing the j.ury.

The other grounds in the motion present no error.

The judgment is reversed, and the cause is remanded.


text:
    HICKMAN v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 22, 1913.)
    1. Criminal Haw (§ 1169) — Harmless Error — Admission of Evidence — Minimum Penalty.
    Where evidence was introduced, upon a prosecution for carrying a pistol, that the defendant had drawn and fired it at a man, but the jury assessed the minimum penalty against him, the evidence cannot be said to have been calculated to inflame the minds of the jury.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 754, 3088, 3130, 3137-3143; Dec. Dig. § 1169.]
    2. Weapons (§ 11) — Carrying Pistol — Justification — Traveler.
    Where a merchant, charged with carrying a pistol, testified that he was going out to see some customers, who were owing him, his testimony disclosed that he was not a traveler within the meaning of the Code.
    [Ed. Note. — For other cases, see Weapons, Cent. Dig. §§ 10-14; Dee. Dig. § 11.]
    Appeal from Roberts County Court'; J. E. Kinney, Judge.
    D. K. Hickman was convicted of carrying a pistol, and be appeals.
    Affirmed.
    J. C. Dial, of Miami, for appellant. C. E. Lane, - Asst. Atty. Gen., for tbe State.

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

   HARPER, J.

Appellant was convicted of the offense of carrying a pistol, and his punishment assessed at a fine of $100.

Appellant contends that the court committed material error in permitting the state’s witness to testify, in addition to testifying to the fact that appellant had a pistol, that he took out the pistol and fired same at a man. The objection made was that defendant was not charged with rudely displaying a pistol, and the evidence was calculated to inflame the minds of the jury. As the record discloses that the jury gave appellant the minimum punishment, this bill presents no error.

The only other ground in the motion complains of the action of the court in refusing to give two special charges requested. The first requested a peremptory instruction of not guilty, and the other charge not given is that, if appellant had begun his journey from Miami to Mobeetie, to find him not guilty. The record discloses that appellant was a merchant at Miami, and he says: “I went out that day to see some of the people who were owing me at that time, to try and see if we could not make some kind of a settlement of their accounts.” It is thus disclosed that appellant was going to see his customers, who lived within trading distances of Miami; and, if this is true, this would not constitute him a traveler within the meaning of our Code.

The judgment is affirmed.


text:
    VINE v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 22, 1913.)
    Criminal Law (§ 829*) — Trial—Requested Instructions — ’Instructions Alreaihy Given.
    Where the charge in a criminal prosecution fairly presents the issues as raised by the evidence, it is not necessary for the court to give the special charges requested by the defendant.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. § 829.*]
    Appeal from Fannin County Court; Rosser Thomas, Judge.
    Effie Vine was convicted of unlawfully carrying a pistol, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was prosecuted and convicted of the offense of unlawfully carrying a pistol.

The evidence would show that appellant had ordered a pistol, and delivered it to George Brigham, who had carried it to his (Brigham’s) house. On the night appellant was prosecuted for carrying the pistol he called at the home of Brigham and got the pistol. His home was about one-half or three-quarters of a mile northeast from Brigham’s residence. When he got the pistol he did not go directly home, but went to the schoolhouse and attending a speaking, and on his way home from the speaking shot the pistol. The evidence further shows that there was a direct route from Brigham’s to appellant’s home. It further shows that if he went the way he did a half mile he came to another road going to his home, but he did not take this road, but went another mile to the schoolhouse, and in returning home he was compelled to retrace his steps the full length of this mile. Under such circumstances, we thing the court’s charge as given fairly presented the issues as raised, and it was not necessary nor proper to give the special charges requested. Zollicoffer v. State, 43 S. W. 992; Cordova v. State, 50 Tex. Cr. R. 353, 97 S. W. 87.

The judgment is affirmed.


text:
    COOPER v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 22, 1913.)
    1. Criminal Law (§ 541*) — Evidence at Former Trial — Admissibility.
    Under a plea of insanity, a certified copy of the evidence adduced on an insanity trial upon -which accused was adjudged insane could not be received, in the absence of any showing that the witnesses were dead, beyond the jurisdiction of the court, or that, for any reason their attendance could not be secured.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1231; Dec. Dig. & 541.*]
    2. Bigamy (§ 9*) — Evidence—Mode of Prov-ino Marriage.
    On a trial for bigamy, accused’s marriage to two women could be proved by the testimony of those who were present when the marriage ceremonies were performed.
    [Ed. Note. — For other cases, see Bigamy, Cent. Dig. §§ S4r-5S; Dec. Dig. § 9.*]
    Appeal from District Court, Madison County; S. W. Dean, Judge.
    I. S. Q. Cooper was convicted of bigamy, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was prosecuted and convicted of bigamy, and his punishment assessed at three years’ confinement in the penitentiary.

The record discloses that appellant was married to Lavinia Murchison in Rusk county, Tex., on June 16, 1905; that thereafter he was married to E. T. Wheaton on the 14th day of August, 1911, in Madison county, Tex. Both wives were living at the date of this trial, and appellant had never been divorced from his first wife at the date of his second marriage. His defense was, first, insanity, and, secondly, the church of which he was a member did not recognize the legality of his first marriage to Lavinia Murchison, as she was a member of a different church, and was a divorced woman at the time he married her. Appellant was a minister of the gospel, and in his testimony details at length why he did not consider his first marriage as binding on him.

Appellant introduced on his plea of insanity the judgment of the county court of Denton county, entered on the 9th of October, 1909, adjudging him insane. He also desired to introduce a certified copy of the evidence adduced on the insanity trial in 1909. This the court would not permit him to do, and he complains of this action of the court in his motion for a new trial, although no bill of exceptions was reserved at the time. Had a bill been preserved, it would not avail appellant. The witnesses who testified at the insanity trial are not shown to be dead, beyond the jurisdiction of the court, nor any reason given why their attendance could not be secured on this trial.

There was no error in permitting the state to prove the marriage of appellant to these two women by the oral testimony of those who were present at the time the marriage ceremony was performed; but, if this were not true, no bill of exceptions was reserved to the action of the court in permitting this fact to be so proven.

In the motion for a new trial there is no complaint of the charge of the court; no exceptions were reserved to the introduction or rejection of testimony; the evidence amply supports the verdict, and the judgment is affirmed.


author: RASBURX, J.

text:
    COOPER COTTON OIL CO. v. COOPER GIN CO.
    (Court of Civil Appeals of Texas. Dallas.
    Oct 25, 1913.
    Rehearing Denied Nov. 15, 1913.)
    1. Contracts (§ 272) — Repudiation—'PERFORMANCE — EFFECT.
    Plaintiff contracted to purchase cotton seed for defendant during the season of 1911-1912, paying its own funds therefor at prices fixed by defendant, and on delivery of the seed defendant agreed to pay therefor and, in addition, a commission of $2 a ton. After about a third of the seed had been delivered, defendant’s local manager notified plaintiff that thenceforth defendant would pay only $1 a ton commission on seed thereafter delivered. Plaintiff declined to agree to the reduction, and advised defendant that the original agreement would be observed and seed delivered in compliance therewith, and continued to deliver, and defendant continued to receive, seed until the end of the season, at which time defendant refused to pay more than $1 commission on deliveries subsequent to the notice, which plaintiff refused to accept. Held, that defendant’s notice under such circumstances was not a repudiation of the contract so as to require plaintiff to refuse to make further deliveries and sell the seed in the market, but plaintiff was entitled to continue deliveries and recover the contract commission.
    [Ed. Note. — For other cases, see. Contracts, Cent. Dig. §§ 1192, 1193; Dec. Dig. § 272.]
    2. Trial (§ 194) — Instructions—Weight of Evidence.
    An instruction presenting plaintiff’s theory of the case, providing that it would be entitled to recover if the jury believed its testimony, unless the contract, “if any was made, was not breached or canceled by defendant as alleged by it” was not objectionable, as a charge on the weight of the testimony, in assuming that defendant admitted the making of the contract sued on in the use of the words “as alleged by it.”
    [Ed. Note. — For other cases, see Trial, Dec. Dig. § 194.]
    3. Appeal and Error (§ 1062) — Review— Harmless Error.
    Where the appellate court found that the facts were insufficient to establish a cancellation or repudiation of the contract sued on as against plaintiff, it was not a material error that the question was submitted to the jury, which made a similar finding.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§, 4212-4218; Dec. Dig. § 1062.]
    4. Appeal and Error (§§ 1050, 1066) — Instructions — Prejudice.
    Where there was no breach of the contract sued on as a matter of law, proof that an alleged breach was waived, or a charge on waiver without proof thereof, was unimportant and harmless.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166, 4220; Dec. Dig. §§ 1050, 1066.]
    Appeal from District Court, Delta County; Wm. Peirson, Judge.
    Action by the Cooper Cotton Oil Company against the Cooper Gin Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Clark & Leddy, of Greenville, and Newman Phillips, of Cooper, for appellant. Bennett & Lane and A. T. Stell, all of Cooper, for appellee.

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

   RASBURX, J.

Appellee sued appellant, alleging that it operated a cotton gin in the town of Cooper, and that appellant operated in said town an oilmill, and that in July, 1911, it was agreed between them that appellee should purchase .cotton seed for appellant from its customers during the season, 1911-1912, paying its own funds therefor at prices furnished by appellant, and that on delivery of the seed so bought appellant would pay appellee a commission of $2 per ton, and that under said contract ap-pellee delivered 1,313 ⅛ tons of seed, for which appellee was entitled to receive $2,-627, and upon which amount appellant paid $1,616.50, leaving unpaid $1,013.50, for which appellee sought judgment. Appellant answered the suit by the general denial and specially averred that during the cotton season of 1911-1912 it paid the cotton gin-ners of Delta county, including appellee, a commission of $2 per ton for all cotton seed delivered to it until September. 15, 1911, at which time notice was given to all that it would no longer pay said commission, and that the commission so agreed to be paid was not the result of the contract, but because of a custom existing for several years, in the past, and under which appellant reserved the right to either reduce the amount of the commission or cease payment thereof altogether, and that appellant did notify ap-pellee September 15, 1911, that thenceforth it would only pay $1 per ton commission. Upon trial by jury appellee recovered verdict, followed by judgment for the amount sued for, and the cause is here for consideration upon errors assigned by appellant.

The verdict of the jury authorizes the following conclusions of fact: Appellant did agree to pay appellee a commission of $2 per ton on all cotton seed bought by appel-lee from its customers at prices fixed by appellant during the cotton season of 1911-1912. Under the agreement appellee bought 1,313 ½ tons of seed and delivered same to appellant. On September 15, 1911, when 358 tons of seed had been delivered, Chester Smith, manager for appellant, acting upon instructions from P. A. Norris, president of appellant, notified C. A. Hardie, manager for appellee, that thenceforth appellant would pay a commission of only $1 per ton on all seed delivered. Appellee declined to agree to the reduction, and advised appellant that the original agreement would be observed and the seed delivered in compliance therewith. The seed were delivered and accepted by appellant after the notice of reduction in commissions. Appellant also furnished appellee, after said notice, the prices to be paid for the seed. Appellant’s manager refused, however, to pay more than $1 per ton for the seed after September 15, 1911, and appellee’s manager refused to accept that amount, demanding $2. The matter remained thus until the arrival of P. A. Norris, appellant’s president, who was not a resident of Cooper. On arrival of Norris, and upon demand for payment on the $2 basis, he declined to pay more than $1 per ton. Thereupon suit was filed.

The materiality of many of the propositions of law asserted on this appeal depend upon whether or not there was in law a breach of the contract found by the jury to have been entered into between appellant and appellee, and because of that fact, and in order to avoid the discussion of immaterial issues, we give it here as our opinion, based upon the undisputed testimony, that there was in law no breach or effective repudiation of the contract by appellant. In passing upon the testimony the jury found such a contract as alleged by ap-pellee was entered into. After appellees had entered upon the performance thereof, and had delivered thereunder one-third of the seed agreed to be delivered, appellant, in an attempt to repudiate the agreement, notified appellee it would rduce the agreed commission to $1 per ton. Appellee, however, declined to agree to such reduction, and advised appellant that it would continue to furnish cotton seed under the agreement, and did subsequently tender appellant the balance of the seed, which were accepted by appellant with but one condition on the part of the local manager, which was that the matter of payment would have to be adjusted with the president of appellant. Had appellant gone further and refused to accept the seed when tendered, it would, of course, have been a repudiation in fact of the contract, and appellee would have been bound to have made some other disposition of the seed, and its remedy might have been changed. Not so, however, appellant’s liability, for neither party to a contract which is in course of performance may repudiate same by notice of one of the parties that material changes will be claimed and attempted to be ingrafted thereon. Kilgore et al. v. Northwest Texas Baptist Educational Ass’n, 90 Tex. 139, 37 S. W. 598; Railway Co. v. Payne, 99 Tex. 46, 87 S. W. 330, 70 L. R. A. 946, 122 Am. St. Rep. 603; Kadish v. Young, 108 Ill. 170, 43 Am. Rep. 548.

In accordance with the views just stated, none of the propositions stated under appellant’s first assignment of error need be specifically considered, except the second, which urges that the charge of the trial court presenting appellee’s theory of the case is erroneous and upon the weight of the testimony in assuming that appellant admitted the making of the contract sued upon. The trial court presented to the jury appellee’s theory of the case, and told the jury appellee would be entitled to recover if they believed its testimony, unless the contract, “if any was made, was not breached or canceled by defendant, as alleged by it.” The use by the court of the words “as alleged by it” (appellant) is the assumption complained of. We think the use of the term in no sense misled the jury. On the contrary, it occurs to us it kept before the jury both the fact that appellant denied the making of the contract, and at the same time reserved the right to change, modify, or cancel whatever arrangement under which the parties were operating. Certainly an intelligent jury could not distort the words “as alleged by it” into an admission of ap-pellee’s claim.

All propositions under the second assignment of error complain of the action of the trial court in leaving by its charge to the determination of the jury whether or not the evidence was sufficient to constitute a cancellation of the contract, since that was an issue of law for settlement by the court. We concede the soundness of the point, but at the same time the action of the court becomes immaterial under our finding that the facts adduced on trial are insufficient in law to establish a cancellation or repudiation of the contract against appellee.

The propositions under the third assignment of error, which complain of the charge of the court upon what would constitute in law a waiver of a breach of the contract, are likewise immaterial under our holding that there was no breach. Being no breach, proof that it was waived, or a charge upon waiver without proof, become unimportant and harmless.

Appellant by its fifth assignment of error complains of the refusal of the court to give one of its special instructions to the jury. The refused charge made it the duty of appellee, when appellant attempted to avoid the contract, to use ordinary care to sell the seed to another, and in the event it appeared that by the use of ordinary diligence appellee could have sold the seed for the same or a better price, the jury should return a verdict for the defendant. Had appellant refused the seed when tendered, it would have been the duty of appellee to have secured for them the best obtainable market price. Appellant, however, accepted the seed, and presumably either utilized same or sold them for the highest price which the testimony shows was obtainable at the time appellant accepted the same. In any event, after acceptance by appellant, no duty arose demanding a sale of them, and accordingly no occasion to give the refused charge.

Finding no reversible error in the record, the judgment of the court below is affirmed.


author: TALIAFERRO, J.

text:
    B. W. McMAHAN & CO. v. STATE NAT. BANK OF SHAWNEE.
    (Court of Civil Appeals of Texas. San Antonio.
    Oct. 15, 1913.
    On Motion for Rehearing, Nov. 12, 1913.)
    1. Carriers (§ 55) — Bill of Lading — Negotiability.
    A bill of lading is only quasi negotiable and represents personal property and not money.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 130, 168; Dec. Dig. § 55.*]
    2. Carriers (§ 58) — Bills of Lading — Effect of Transfer.
    The transfer of a bill of lading transfers only the title to, and the constructive possession of, the very goods which it represents.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 179-190; Dec. Dig. § 58.*]
    3/ Carriers (§ 51) — Bills of Lading — “Shipfer’s Order.”
    The term “shipper’s order,” as used in bills of lading, is well understood and means that the title remains in the shipper until he orders a delivery of the goods.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 14S, 149; Dec. Dig. § 51.*]
    4. Carriers (§ 58) — Bills of Lading —Title to Shipment.
    Where, under an agreement with a dealer in cotton, a bank paid drafts drawn on the dealer for the price of shipments of cotton and received the attached bills of lading therefor drawn to the shipper’s order, the bank acquired the title to, and constructive possession of, the cotton without an actual delivery of the cotton to it, and the dealer had no title or interest therein.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 179-190; Dec. Dig. § 58.]
    5. Warehousemen (§ 15) — Warehouse Receipts — Effect of Transfer.
    Cotton compress receipts are warehouse receipts, and the sale, or transfer thereof carries the constructive delivery and ownership of the goods for which they stand.
    [Ed. Note. — For other cases, see Warehouse-men, Cent. Dig. §§ 31-34, 37; Dee. Dig. § 15.]
    6. Carriers (§ 58) — Bills of Lading — Rights of Transferee.
    Where a bank, which under an agreement with a dealer in cotton had paid drafts drawn on the dealer and received the attached order bills of lading for cotton, intrusted such bills of lading to the dealer upon his representation that he wanted them in order to pay the freight and obtain compress receipts, but the dealer, after 'obtaining compress receipts, transferred them to one to whom he had sold the cotton without the bank’s knowledge, the purchaser acquired only such title as the dealer had and as against the bank acquired no title at all, since the sale of found or stolen property, or property obtained by fraud, vests no better title because made through the means of a bill of lading.
    [Ed. Note. — For other cases, see Carriers, Cent Dig. §| 179-190; Dec. Dig. § 58.]
    7. Estoppel (§ 112*) — Pleading — Sufficiency.
    In an action by a bank which had paid drafts drawn on a dealer in cotton and received the bills of lading for cotton attached thereto against one to whom the dealer, having obtained the bills of lading by fraud, sold the cotton, defendant’s plea that it was an innocent purchaser for value was not sufficient, in connection with the allegation of the petition that the bills of lading were intrusted to the dealer for a particular purpose, to raise the issue of es-toppel.
    [Ed. Note. — For other cases, see Estoppel, Cent. Dig. § 302; Dec. Dig. § 112.]
    8. Estoppel (§ 110) — Pleading — Sufficiency.
    Estoppel is an affirmative defense and must be specially pleaded.
    [Ed. Note. — For other cases, see Estoppel, Cent. Dig. § 300; Dec. Dig. § 110.]
    9. Estoppel (§ 75) — Bills of Lading — Rights of Owner — Estoppel.
    A bank which had paid drafts drawn on a dealer of cotton and received the attached bills of lading for cotton did not, by intrusting the bills of lading to the dealer upon his representation that he needed them in order to pay the freight and obtain compress receipts, estop itself to deny the dealer’s right to sell the cotton. '
    [Ed. Note. — For other cases, see Estoppel, Cent. Dig. §§ 192-195; Dec. Dig. § 75.]
    10. Appeal and Error (§ 1001) — Review-Questions of Fact.
    It is not within the province of the Court of Civil Appeals to reverse findings which are supported by evidence.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3922, 3928-3934; Dec. Dig. § 1001.]
    Appeal from District Court, Galveston . County; Clay S. Briggs, Judge.
    Action by the State National Bank of Shawnee against the Mallory Steamship Company, which impleaded B. W. McMahan & Co., who filed a petition of intervention. From a judgment for plaintiff, the intervener appeals.
    Affirmed.
    P. K. Morrill, of Altus, Okl., and Mann & Baker, of Galveston, for appellant. Stan-ard, Wahl & Ennis, of Shawnee, Okl., and Wm. B. Lockhart and W. T. Armstrong, both of Galveston, for appellee.

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

   TALIAFERRO, J.

This suit was by the State National Bank of Shawnee (Oklahoma) against the Mallory Steamship Company for the recovery of 100 bales of cotton in possession of the steamship company; the Bank claiming title to the cotton. The Steamship Company impleaded McMahan & Co., who, by petition of intervention,' set up their claim to the cotton. By agreement the cotton was sold, the Steamship Company was dismissed from the suit, and the money held to await the determination of the rights of the bank and the interveners, who are appellants here.

The facts, briefly stated, are: D. Y. Lid-dell & Co., cotton buyers of some sort, called “scalpers,” were dealing in Shawnee, Okl., and vicinity. They approached the State National Bank of Shawnee and obtained a verbal agreement from that bank to honor drafts drawn upon them with bills of lading for cotton attached; such drafts to be accepted by them and the cotton to be held by the bank and sold jointly by it and the Lid-dells, from the proceeds of which sales the bank was to be reimbursed. Tbe Liddells had no account with the bank at any time but had executed to it a note and mortgage on personal property to secure possible deficiencies in the cotton sales.

In pursuance of this agreement the Lid-dells’ agents bought cotton from various persons who drew drafts for the price of the cotton. These drafts were drawn upon the Liddells in favor of either the shippers or the banks through which they were drawn. In due course of business they came to the State National Bank of Shawnee with bills of lading attached. They were accepted by the Liddells and paid by the bank. The bills of lading were all to shippers’ order, and the bills of lading and the drafts were all held by the bank subject to its agreement with the Liddells.

Prior to October 17, 1910, J. O. Liddell, Jr., one of the parties to the contract, made an agreement to sell, or did sell, the cotton in question to B. W. McMahan & Co., appellants in this case, without the knowledge or consent of the bank. On October 17th J. G. Liddell, Jr., went to the bank and, at his request, was given possession of the bills of lading “so that he might pay the freight and obtain compress receipts for the cotton.” He promised to perform this service and bring the compress receipts back to the bank at once. The bills of lading were given to him for that purpose and his receipt taken therefor. He took them to the railroad company and obtained the compress receipts, but, instead of' returning with them to the bank, he .delivered the receipts to McMahan & Co., who, by virtue of the receipts, took possession of the cotton. McMahan & Co., in buying the cotton, acted in good faith, without knowledge of the theft of the bills of lading and compress receipts by Liddell, and they paid full value for the cotton. The bank did not discover the theft of the bills of lading until about October 25th, when upon inquiry it discovered that the cotton had been sold to McMahan & Co., and that it was then in Galveston in custody of the Mallory Steamship Company, consigned by McMahan & Co. to parties in New York. Judgment was rendered by the court below in favor of the bank, and this appeal is prosecuted by McMahan & Co.

Appellants’ first assignment of error insists that McMahan & Co. purchased the cotton in open market, from a regular dealer, at a full price, in the usual course of trade, and without notice of any right, title, or interest of the bank, and that therefore it took a good title to the cotton with the right to possession. If this is a case in which the doctrine of innocent purchaser could apply, appellants’ contention is unanswerable. But is it such a case? The relation of the parties to the transaction and the character of the property involved are important matters to consider in resolving the question. The first points to be determined are: Was the title to the cotton ever vested in the appellee bank, and, if so, was the possession by Lid-dell of the bills of lading and compress receipts, in the manner in which he acquired them, indicia of title which would vest his vendee, an innocent purchaser for value, with a title superior to that of the bank? In answering these questions it becomes necessary to determine the nature of a bill of lading in its relation to commercial usages. It is well settled that a bill of lading is only quasi negotiable, being the representative of personal property and not of money. The transfer of a bill of lading has only the effect of transferring the title to, and the constructive possession of, the very goods for which the bill is a representative. The bills of lading in this case were issued to the owners of the cotton and were drawn to “shipper’s order” and consigned to Liddell & Co. The term “shipper’s order” is well understood in commercial usage and means that the title remains in the shipper until he has ordered a delivery of the goods. The bills of lading in question were indorsed in blank by the shippers and attached by them to drafts drawn upon Liddell & Co. for the price of the cotton. In the drafts either the shippers themselves or the banks through which they were transmitted were made payees. The drafts came to the appellee bank in due course of business, were accepted by the Liddells, and paid by appellee. The cotton was never at any time actually or constructively in the custody or control of the Liddells. No vestige of title or interest in the cotton ever vested in the Liddells. The only way they could have acquired an interest in the cotton was to pay the drafts held by appellee, when under their contract the bills of lading must have been turned over to them. Dows v. National Bank of Milwaukee, 91 U. S. 637, 23 L. Ed. 214. Liddell & Co. did not pay the drafts, and no title ever vested in them unless the delivery of the bills of lading to J. 0. Liddell, Jr., under the circumstances in this case was sufficient to vest them with title.

It is too well settled for discussion that a bank which pays a draft attached to a shipper’s order bill of lading, indorsed in blank, becomes the owner of the goods represented thereby. Such ownership invests it with title to, and constructive possession of, the goods, and actual delivery to it is unnecessary to perfect the proprietorship. Therefore, under the facts as above stated, the appellee bank was, at the time the billá of lading were taken by J. C. Liddell, Jr., the owner and in possession of the 100 bales of cotton in question. Adoue v. Seeligson, 54 Tex. 593; Dows v. National Bank of Milwaukee, supra; Bank v. Bank, 41 Tex. Civ. App. 535, 93 S. W. 209; Campbell v. Alford, 57 Tex. 159. The many cases cited and discussed by the above cases render further citations here unnecessary.

Cotton compress receipts in the course, of such business as is here revealed are simply warehouse receipts, and the legal status of the warehouse receipt is identical with that of a bill of lading in so far as its sale or transfer carries the constructive delivery and ownership of the goods for which it stands. Clay v. Gage, 1 Tex. Civ. App. 661, 20 S. W. 948; 40 Cyc. 40T, and cases cited; Stamford Compress Co. v. Farmers’ & Merchants’ Bank (Sup.) 144 S. W. 1132, and cases there cited.

If, then, the appellee bank was the legal owner and holder of the cotton on October 17, 1910, and up to that time Liddell & Co. never had any right or title thereto, was the delivery of the bills of lading by the bank to J. C. Liddell, Jr., on that day, such a delivery or transfer of the title to, or possession of, the cotton as to vest in an innocent purchaser from him a good title against the bank? This question can only be answered in the negative. As has been sho-vfrn, a bill of lading is not like a bill of exchange, carrying to the purchaser in good faith, by mere indorsement and delivery, a title good against the world. The transfer of the bill of lading delivers but the goods and passes to the purchaser no better title than the seller had. The sale of found or stolen property, or property obtained by fraud, vests no better title because the sale is made through the means of an instrument called a bill of lading. A bill of lading is but a receipt for specific goods, and when Liddell sold to McMahan & Co. he sold them the cotton of which he was the tortious, if not felonious, possessor, and they took the title he had and no more. Stollenwerck v. Thacher, 115 Mass. 224; Shaw v. Merchants' Nat. Bank, 101 U. S. 557, 25 L. Ed. 892; 6 Cyc. 418 to 424, and eases there cited; Bank v. Luttgren, 29 Minn. 363, 13 N. W. 151; Pollard v. Vinton, 105 U. S. 7, 26 L. Ed. 998. The first assignment of error is overruled, and what’ has been said disposes also of assignments Nos. 2, 3, 4, 4½, 5, and 7, and they are overruled.

But appellants contend, in their sixth assignment of error, that the bank was, by its own negligence, in trusting the bills of lading to the custody of J. C. Liddell, Jr., estopped to deny his right to sell. They admit that they did not assert the defense of estoppel but contend that their plea of innocent purchaser for value, considered with the petition of the plaintiff, was sufficient to raise the issue in their behalf although not specifically set up in their pleading. They contend that the appellee in its original petition alleged its own negligence when it stated that it “intrusted the bills of lading to J. C. Liddell, Jr.,” and that to complete their defense of estoppel they had but to show, under their plea, that McMahan & Co., had bought from Liddell in good faitfy for value, and without notice.

Estoppel is an affirmative defense, and under our practice, from the earliest date, it has been held that an affirmative defense must be specially plead. In the case of Smith v. Sherwood, 2 Tex. 461, our Supreme Court said it should be known by this time that all affirmative defenses should be specially pleaded. Keeble v. Black, 4 Tex. 69; Scarborough v. Alcorn, 74 Tex. 360, 12 S. W. 72; Barker v. Abbott, 2 Tex. Civ. App. 147, 21 S. W. 72; Rail v. Bank, 3 Tex. Civ. App. 557, 22 S. W. 865; Hollifield v. Landrum, 31 Tex. Civ. App. 195, 71 S. W. 979; Casey v. Treadwell, 32 Tex. Civ. App. 480, 74 S. W. 791; Tex. Produce Co. v. Turner (Sup.) 27 S. W. 583; Stanger v. Dorsey, 22 Tex. Civ. App, 573, 55 S. W. 129; Anderson v. Nuckles, 34 S. W. 184. The trial court held that the allegations of the pleadings were not sufficient to raise the issue of estoppel, and we must concur in that holding. However, if it should be conceded that the pleadings of the plaintiff can in this case be construed to supply an allegation omitted from the appellant’s intervention, it must still be held that neither such allegation nor the facts was sufficient to show negligence of the bank in such manner as to estop it from denying the authority of Liddell to sell the cotton.

The sixth assignment of error is therefore overruled. This also disposes of assignments Nos. 9 and 10 and the third proposition under assignments Nos. 3, 4, 4½, 7, 9 and 10.

Appellants’ eighth assignment of error and the fifth proposition under their eleventh assignment of error are overruled. They present questions as to the sufficiency of the evidence to support the findings of the trial court. There is evidence to support these findings, and it is not therefore within the province of this court to reverse them.

We find no error in the judgment of the lower court, and the judgment is affirmed.

On Motion for Rehearing.

Appellants contend that this court erred in holding that the title to the cotton was in the appellee bank, because they assert the compress tickets (warehouse receipts) issued by the cotton compress upon the surrender of the bills of lading by Liddell were issued to “bearer.” No such fact was proven. The tickets or receipts themselves were not introduced in evidence, nor was there any evidence of any kind which showed in whose favor the tickets were issued. Appellants must have had it in their power to make this proof, and, if the facts would have been beneficial to their interests, it must be assumed that they would have done so. We have carefully considered appellants’ motion for rehearing and find no reason for altering our former opinion, and the motion is therefore overruled.


author: TALBOT, J.

text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. PERRYMAN et al.
    (Court of Civil Appeals of Texas. Dallas.
    Oct. 18, 1913.
    Rehearing Denied Nov. 8, 1913.)
    1. Master and Servant (§ 137*) — Injury— Negligence — Backing- Train on Side Track.
    To make the crew of a train, backed in on a side track against ears thereon with such force as to drive them against a ear being repaired, killing the car repairer, guilty of negligence rendering the company liable, they need not have had actual knowledge of his presence and danger, but it is enough that they might have reasonably foreseen that some one might be so working there.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 269, 270, 273, 274, 277, 278; Dec. Dig. § 137.*]
    2. Master and Servant (§ 278*) — Injury-Negligence — Backing Train on Side Track.
    Evidence as to custom of repairing cars on a side track held to show the crew of a train which backed it in on such track against cars standing thereon with such force as to drive them against a car being repaired, killing the car repairer, should have reasonably anticipated his presence, making them guilty of negligence.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 954, 956-958, 960-969, 971, 972, 977; Dec. Dig. § 278.*]
    3. Master and Servant (§ 228) — Negligence (§ 101*) — Injury—Effect oe Contributory Negligence — Railroab Em-PLOYÉ.
    By provision of Rev. Civ. St. 1911, art. 6649, the contributory negligence of an employs of a railroad company does not prevent recovery for his death, resulting in part from its negligence, but the damages are to be diminished by the jury in proportion to the amount of negligence attributable to him.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 670, 671; Dec. Dig. § 228;* Negligence, Cent. Dig. §§ 85, 163, 164; Dee. Dig. § 101.*]
    4. Trial (§ 191*) — Instructions on Weight oe Evidence.
    An instruction that if the jury believe from a preponderance of the evidence, that defendant’s servants caused an engine to come in on a track and to strike with terrific force cars thereon, etc., is not on the weight of evidence, as assuming the engine struck the cars with terrific force, but submits that as an issue of fact.
    TEd. Note. — For other cases, see Trial, Cent. Dig. §§ 420-431, 435; Dec. Dig. § 191.*]
    5. Appeal and Error (§ 1170*) — Harmless Error — Court Rules.
    By provision of Court of Civil Appeals rule 62a (149 S. W. x) an error of law in the course of the trial is to be disregarded, unless such court be of opinion that it amounted to such a denial of appellant’s rights as was reasonably calculated to cause, and probably did cause, the rendition of an improper judgment.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4032, 4066, 4075, 4098, 4101, 4454, 4540-4545; Dec. Dig. § 1170.*]
    6. Trial (§ 256*) — Instructions—Error oe Omission — Necessity oe Request.
    Any error of an instruction that deceased did not assume any risk arising from any negligence of defendant in not adding, “unless he knew of such negligence, * * * or unless the negligence * * * was so patent as to be
    yeadily observed by him,” was one of omission, requiring a request for such further instruction.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 628-641; Dec. Dig. § 256.*]
    7. Appeal and Error (§ 1170*) — Harmless Error — Instructions.
    An instruction that deceased was guilty' of contributory negligence, when taken in connection with one that the negligence of deceased in order to constitute contributory negligence, must have concurred and co-opera’ted with some negligent act of defendant, is not at all likely to have been understood by the jury as a statement that defendant was guilty of some negligence, so that though literally it may have that effect, Court of Civil Appeals rule 62a (149 S. W. x), requiring the disregarding of error not such as probably caused the rendition of an erroneous judgment, applies.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4032, 4066, 4075, 4098, 4101, 4454, 4540-4545; Dec. Dig. § 1170.*]
    Appeal from District Court, Hill County; Horton B. Porter, Judge.
    Action by Eva Perryman, administratrix, and others against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiffs. Defendant appeals. '
    Affirmed.
    Alex. S. Coke and A. H. McKnight, both of Dallas, and Spell & Sanford, of Waco, for appellant. Collins, Cummings & Shurfleff, of Hillsboro, for appellees.

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

   TALBOT, J.

Mrs. Eva Perryman, as ad-ministratrix of the estate of L. M. Perryman, deceased, brought this suit against appellant to recover damages for the negligent killing by appellant of the said L. M. Perryman. The beneficiaries named in the petition were Mrs. Perryman, wife of L. M. Perryman, and her three minor children, Bessie Perryman, John C. Perryman, and Macy Perryman. The trial of the case before the court and a jury resulted in a judgment in favor of the plaintiff for the sum of $15,000, apportioned as follows: To Mrs. Perryman, $7,500, and to each of the minor children, $2,500. Plaintiff alleged, in substance, that deceased in his lifetime was an employé of the appellant, engaged, in repairing cars for appellant, and was so engaged at the time of his death; that on the day of his death he was directed by the foreman, under whom he was working, to go to a certain track and repair a certain car designated by said foreman, and that he went to same and began to repair said car; that there was situated south of the car on which he was working a switch engine, and that the operatives in charge of same knew that he was engaged in said work on the north end of said car; that there was a string of cars situated north of deceased, and that with such knowledge the said switch engine was propelled onto said track and killed deceased; that her husband met his death on account of said car being moved by the switch engine, which was south of him. Plaintiff then alleged the fact to be that while L. M.' Perryman was so engaged at his said work a certain engine operated by appellant came in upon the track upon which the string o£ ears was situated, and upon which deceased was working, from the north, and that said cars were struck by said engine with terrific force, and that they were thereby caused to roll back upon her husband and kill him. She also alleged that the act of the switch crew in propelling said engine against said cars was negligence and the proximate cause of the death of the deceased, and that the act of moving said engine on the north end of said string of cars, if it was so moved, and the striking of said •cars with such great force in the manner in which the same were struck by said engine, and which caused them to move suddenly, upon deceased and produce his death, were acts of negligence and the proximate cause of the death of deceased. The first count of appellees’ petition charged that the car the deceased was repairing formed a part of a train in appellant’s yards engaged in intrastate commerce. Appellant answered, among other things, by general denial and special pleas of contributory negligence and assumed risk on the part of the deceased, Perry-man.

The yards of appellant contained a number of tracks, r.unning north and south, projecting from what was known as “lead track.” Some of these tracks were used as switch tracks and others as repair tracks. The deceased, at the time of the injury, was engaged in repairing a car standing on track No. 9. This track was known as a switch track, but frequently repair work, such as deceased was doing, was done on this track under the ■direction of appellant. Appellant’s foreman, who was the superior of deceased, directed that the work the deceased was doing at the time he was killed should be done on said track No. 9. There was situated on this track at the time a string of cars, SO or 40 •in number, extending north of where the deceased was working, and the car he was repairing was the last car on the south end before the caboose was attached. There was •evidence to the effect that appellant had promulgated a rule which required men working under the conditions surrounding the deceased at the time he was killed to place signal flags at each end of the train to give notice of their presence, but flags were not so placed in this instance. While the deceased was working on the car which -he was directed to repair, said car was negligently moved against the other ears by the •switch engine being operated by appellant’s employés working south of it, or said other cars were negligently moved against it by the engine operated by appellant’s employes working at the north, known as the road engine, and deceased was caught between the drawheads and killed. There was evidence •supporting both theories, and both were submitted by the court’s charge to the jury, but the verdict of the jury was general, and the record does not disclose upon which theory their verdict was based. The death of L. M. Perryman was caused by the actionable negligence of appellant’s servants, whether he was killed by the operation of a switch ■engine or of the road engine.

Appellant’s first assignment of error complains of the third paragraph of the court’s charge to the jury, and particularly of that part which reads as follows: “Or, if you believe from a preponderance of the evidence that the said E. M. Perryman, an employs of the defendant company as its south yards, near Hillsboro, Tex., on or about the 11th day of November, 1912, was directed by defendant’s foreman, S. Pelphrey, to repair a certain car situated on a certain track in said yards, and that while the said L. M. Per-ryman was engaged in repairing said car defendant’s servants and employés caused a certain engine to come in upon the track upon which said car was situated, and to strike with terrific force a certain string of cars on the track whereon was situated the car so being repaired by the said Perryman, and thereby causing said cars to roll back upon the said Perryman, in such a manner as to catch him between the said cars and the car he was engaged in repairing, and thereby crushing the said Perryman and causing his death, and if you further find from a preponderance of the evidence that the defendant’s servants and employés in so causing said cars to be run upon the said Perryman and killing him, if they did do so, was negligence, and that such negligence, if any, was the direct and proximate cause of the death of said Perryman, then you will find for the plaintiff, unless you find for the defendant under instructions hereinafter given.” The propositions contended for under this assignment, as shown by appellant’s brief, are: (1) That the record presents no evidence of negligence on the part of the crew in charge of the road engine, and therefore the court erred in submitting that issue to the jury; (2) “a charge which, in stating to the jury what they must find to return a verdict for the plaintiff, omits an element necessary under the facts, is positive error”; (3) “under the facts knowledge on the part of the road crew, or notice of such facts as would impute to them knowledge, that work was being done on some car in the train was necessary to render their act negligent as to a person working on a car therein; for, in the absence of such knowledge, they had no reason to anticipate an injury as the result of their act, and where injury should not be anticipated, the act is not negligent, or if in any sense negligent, is not actionable”; (4) “the paragraph of the charge in question authorizes a recovery without reference to whether the train crew knew, or should have known, that the car repairers were working on track No. 9, and should have anticipated injury to them”; (5) “the portion of the charge in question is upon the weight of the evidence, and assumes that the road crew knew, or should have known, that repairs were being made on track No. 9, when the uneontroverted evidence shows directly to the contrary;” (6) “the paragraph of the charge in question is upon the weight of the evidence, and assumes that if the road engine caused the cars to strike the car deceased was working on, it did so with terrific force, when that issue was for the jury to determine.” A careful reading of the court’s charge and examination of the evidence shown by the record convinces us that there is no material or reversible error here pointed out. There was sufficient evidence to warrant the following conclusions: That the operatives of the road engine knew, or should have known, that the car the deceased was working on when he was killed was being repaired,' and that they had reason to anticipate or foresee that the person engaged in such work might be injured by the manner in which the engine or cars were moved against the one deceased was repairing; that they were negligent in that the cars were shoved, in making the coupling intended, with such force that after they struck the deceased he was dragged, according to the testimony of the witness Grubbs, a distance of 26 feet, according to the testimony of Pelphrey, appellant’s foreman, a distance of 30 feet, and by the testimony of the witness Underwood, a much greater distance. J. B. Goble, engineer of the switch engine mentioned in the pleadings and evidence, testified that it was a very easy thing in operating the engines to “couple onto a car easy.” He said: “You can couple onto it without moving the car more than a shake to it and move it two or three inches. A coupling can be effected without hardly moving the car.” It is clear that if this character of coupling had been made by the servants of appellant, the car that struck the deceased would not have reached him.

We do not understand that it is essential to appellees’ right of recovery that the appellant’s servants in charge of the engine which was moved against the ears that crushed and caused the death of L. M. Perry-man must have had actual knowledge that the said Perryman was repairing the car, or actually knew of the danger to which he was exposed. If, under all the facts and circumstances, they could have reasonably foreseen that injury might result to some servant of appellant working on the track in question, or on a car situated thereon, as a consequence of the unnecessary and unusual force with which the cars were driven together and L. M. Per-ryman killed, they were guilty of actionable negligence which renders appellant liable to appellees for the damages suffered by them on account of the death of the said Perryman. The case is not one where it appeared that the injured person was a trespasser, but under the undisputed facts the deceased was rightfully upon appellant’s premises, engaged in the work he had been directed to do, and performing it in the manner and at the place the master’s foreman and vice principal had directed him to perform it.

The witness, Pelphrey, appellant’s foreman, testified: “I called him (L. M. Perryman), and showed him the defect (in the car), and told him to have the men repair the defect before the car was removed from the track, and called the switchman, Mr. Stroud, and asked him to make the cut, and told them to get the tools and make the repairs.” The testimony of this witness further shows, as pointed out by counsel for appellees, that repair work of the kind being done by the deceased at the time of his death was done on this track every day; that it was done, not only by the deceased, but by Pelphrey himself and other car repairers; that when it only required a short time to do the work, it was done without placing any danger signals. He testified: “I have seen some work done there almost every day without putting out flags. We would consider that we were safe in doing it without putting out flags, but had men watching doing little jobs. When it was necessary for me to, I have done work of that kind myself all along, in that way. * * * When they are to go to work all day, they put out flags on the track. I have done jobs on tracks myself when it was only necessary for me to work for a few minutes without putting out flags, and the other men have in my presence. I did not think at the time I called the men’s attention to this job that it would take over 15 minutes.”

G. J. Slade, the rear brakeman of the train to which the engine on the north end was attached, testified that as such brakeman it was his duty to be looking after the hind end of the train. In view of this and other testimony in the record the operatives of the road engine were not justified in assuming, if they did so, that no one was on the track on which the deceased was working, and that therefore they could shove and jam the cars together with the force and in the manner shown.

We are of opinion that appellant cannot escape liability in this case either on the ground that the evidence shows that its servants in charge of the engine which struck and drove the cars together, crushing and killing L. M. Perryman, had no actual knowledge that the said Perryman was working on the 'track, or because no flag was displayed in accordance with appellant’s rule requiring it when repair work was being done on the track. It appears without dispute that appellant’s foreman, Pelphrey, and the switch crew knew that the deceased was at work on the track, and that switching for the purpose of making up a train to go out was being done, which would probably result in moving the car the deceased was repairing, and while the members of the crew handling the road engine testified that they did not know that the car repairers were at work on track No. 9, yet it was very conclusively shown that repair work was frequently done on this track, and that the rule requiring the display of flags for the protection of émployés while engaged in such work was often disregarded. So frequent was such work done on track No. 9, and so often was the rule requiring the display of flags disregarded at such time, and so generally known were these facts to appellant’s émployés, that we think it must be held that its servants causing the death of the deceased, Perryman, were chargeable with notice that repair work was being done on track No. 9, and should have foreseen or anticipated injury to those engaged in such work as a result of the manner in which they drove the cars together on the occasion in question. In other words, we are of the opinion that the facts and circumstances disclosed by the evidence are such as to charge the servants of appellant responsible for the death of L. M. Perryman with knowledge of the fact that at the time he was killed work was being done on track No. 9, and that they should have foreseen injury to the employes engaged therein. The failure of the court’s charge, under the circumstances, to require the jury to find as a necessary fact to appel-lees’ right of recovery that appellant’s road or train crew “knew or should have known” that the ear repairers were working on track No. 9 constitutes no such error as requires a reversal of the ease.

It will be observed that appellant does not complain that the charge under consideration failed to include in the facts essential to appellees’ right to recover the absence of contributory negligence on the part of the deceased, Perryman, and if we are correct in the conclusion that, under the facts and circumstances established by the practically un-controverted evidence, the servants of appellant should have foreseen that injury might result to the deceased or some employé of appellant engaged in repair work on the track upon which the deceased was at work when killed, then the principle or rule announced in Bailway Go. v. Allbright, 7 Tex. Civ. App. 21, 26 S. W. 250, cited by appellant, if correct, under the facts of that ease, has no application and cannot be invoked here. The trial court charged the jury that the defendant had promulgated a rule requiring flags to be set by L. M. Perryman, the deceased, while engaged in the work he was doing at the time of his injury and death; that the evidence shows that said flags had not been placed as required by said rule, and that such failure constituted contributory negligence on his part, and that, if they found for plaintiff, to diminish her damages in proportion to the amount of negligence attributed to the said L. M. Perryman. This charge was in accordance with the provisions of article 6649 of the Bevised Statutes of 1911; and, if there was any error in it, when considered in the light of the evidence adduced, such error consists in the statement therein to the effect that the deceased, Perryman, was guilty of contributory negligence as a matter of law, for failing to display flags for his protection while at work repairing the car on track No. 9. We think the evidence very clearly shows that the defendant’s servants were guilty of negligence in driving the cars against the deceased, and that such negligence was the efficient cause of his death, whether those in charge of the road engine or those in charge of the switch engine did the act.

In reference to the sixth proposition urged by appellant it is sufficient to say that the paragraph of the court’s charge in question is not upon the weight of the evidence, in that it assumes that if the road engine caused the cars to strike the car deceased was working on, it did so with terrific force. Whether or not the cars were struck with such force was by the language of the charge submitted to the jury as an issue of fact for their determination.

Upon the whole we conclude that if the charge we are considering is erroneous in any of the respects suggested by appellant, such error does not amount to such a denial of the rights of appellant as was reasonably calculated to cause, and probably did cause, the rendition of an improper judgment. Under rule 62a (149 S. W. x), unless the error, if any, amounted to such a denial of appellant’s rights, the assignment must be overruled. Before the promulgation of this rule, it was held in a number of cases that “an erroneous charge, which manifestly from the record could have worked no injury, and did not affect the rights of the parties, was no ground for reversal.” Salinas v. Wright, 11 Tex. 572; Garter v. Eames, 44 Tex. 544; Loper v. Robinson, 54 Tex. 510.

Appellant’s second assignment of error presents praeticálly the same questions we have just discussed, and these questions, having been determined against appellant in considering its first assignment, need not be further noticed.

Upon the subject of assumed risk the court instructed the jury that when the deceased, L. M. Perryman, entered the employ of the defendant company he assumed all the risks ordinarily incident to such employment, and that if the jury believed that his injury and death were the direct and proximate result of a risk ordinarily incident to his employment, to find for the defendant, but in this connection they were told that the deceased did not assume any risk arising from the negligence, if any, of the defendant. Complaint is made of this charge, and the contention urged that “under it deceased was not made to assume the risk of appellant’s negligence although he knew of such negligence, or the same was patent and open to his observation.” It is said that to make the charge correct the court should have added, “unless he knew of such negligence, if any, or unless the negligence, if any, was so patent as to be readily observed by him.” In disposing of this assignment it will suffice to say that if the issue of assumed risk was raised by the evidence, and the charge in question is erroneous as claimed, the error was one of omission, and if appellant desired a fuller instruction it should have asked a special charge supplying the omission. It does not appear that any such charge was requested, and the assignment will be overruled. We have, however, failed to discover any evidence in the record which tends in any way to show that the deceased knew, or ought to have known, of the defendant’s negligence in moving the cars against him in the manner they were moved.

The fourth and last assignment of error complains of the following charge: “The evidence shows that the defendant had promulgated a rule requiring flags to be set by L. M. Perryman while engaged in the work he was engaged in at the time of his injury and death, and the evidence shows that said flags had not been placed as required by said rule, and you are instructed that such failure constituted contributory negligence on his part, and if you find for the plaintiff, you will diminish her damages in proportion to the amount of negligence attributed to the said L. M. Perryman.” The contention is that this charge, when considered in connection with the court’s definition of and instructions on contributory negligence, is upon the weight of evidence, and assumes that appellant was guilty of negligence. It is said, in effect, that when the court, in his definition of contributory negligence, informed the jury that the negligence of the deceased, Perryman, in order to constitute “contributory negligence” must have concurred and co-operated with some negligent act of the defendant, and then charged them that the failure of the deceased to display flags for his protection while engaged in repairing the car was contributory negligence on his part, he, in effect, said there was some negligence on the part of appellant. The argument is ingenious, and the charges referred to when construed together and taken literally may have the effect contended for by counsel for appellant, but our conclusion is that the error in the charges, if any, is not such as probably caused the rendition of an improper judgment, and that under rule 62a and the decisions cited above does not constitute reversible error. In the first paragraph of the court’s charge negligence is correctly defined; in the fourth the jury were instructed, in effect, that unless they believed from a preponderance of the evidence that the acts of the servants of the' defendant constituted negligence and was the proximate cause of Perryman’s death, to find for defendant. They were also given the usual charge that the burden of proof was upon the plaintiff to make out her case by a preponderance of the evidence and if she had failed so to do to find for defendant. It is not at all likely that the jury understood the charges on the subject of contributory negligence as the learned counsel for appellant construes them, and were misled thereby to the prejudice of appellant.

The evidence supports the verdict of the jury, the assignments point out no reversible error, and the judgment is affirmed.