text:
    WATERMAN LUMBER CO. v. SHAW.
    (Court of Civil Appeals of Texas. Texarkana.
    Feb. 13, 1914.
    Rehearing Denied March 19, 1914.)
    1. Appeal and Error (§ 1002) — Verdict — Conclusiveness.
    A verdict on conflicting evidence will not be disturbed on appeal merely because it is contrary to the testimony of the greater number of the witnesses.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3935-393T; Dec. Dig. § 1002.]
    2. Master and Servant (§ 264) — Injury to Servant — Issues, Proof and Variance.
    The variance between the petition, in an action for injury to an employs, alleging that the accident happened as the employs reached forward to unloosen a rail, so that it might go forward in the usual manner, and the evidence that the employs made one step in the direction of the end of the rail and was then struck by it as it swung around, was immaterial, where the allegations of the petition as to the particular conduct or acts causing the injury were substantially proved.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 861-ST6; Dec. Dig. § 264.]
    3. Master and Servant (§ 180) — Fellow Servants — “Railroad. ”
    Where a lumber company, engaged in the manufacture and sale of timber, operated a railroad of standard gauge, extending 10 or 12 miles into the forest, with spurs, for the transportation of logs to supply its mill with timber, the railroad was within Rev. St. 1911, art. 6640, making persons operating railroads liable for damages to employes, caused by the negligence of other employes.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 359-361, 363-368; Dec. Dig. § 180.

    For other definitions, see Words and Phrases, vol. T, pp. 5899-5908; vol. 8, pp. TTTT, TTT8J
    4. Master and Servant '(§ 182) — Injury to Servant — “Fellow Servant” — Who Are.
    Where plaintiff, while performing with his men specified work, was subject to the orders of a coemployé, and plaintiff and his coemployé were under the general superintendence of a third person, plaintiff and his coemployé were not fellow servants, within Rev. St. 1911, art. 6641, defining vice principals.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 3T1,- 3T2; Dec. Dig. § 182.

    For other definitions, see Words and Phrases, vol. 3, pp. 2T16-2T30; vol. 8, p. T662.]
    5. Damages (§ 158) — Personal Injuries — Physical and Mental Pain.
    One suing for a personal injury, resulting in his leg being broken by a violent blow and the subsequent amputation of the leg, need not allege that he suffered physical and mental pain, in order to recover damages therefor, but it will be inferred as the natural consequence of the physical condition.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 441-444; Dec. Dig. § 158.]

      6. Damages (§ 216) — Personal Injuries — Physical and Mental Pain.
    A petition for personal injuries, which alleges that plaintiff’s leg was broken by a violent blow, and was subsequently amputated, that he was confined to his bed for more than four months, that he suffered great pain, that the leg refused to heal, necessitating amputation, and which does not allege that the wound had healed at the time of the trial, authorizes a charge permitting a recovery for any physical and mental pain plaintiff may suffer in the future.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 548-555; Dec. Dig. § 216.]
    7. Negligence (§§ 59, 136)— Question fob Court and Jury.
    To create actionable negligence, the circumstances must have been such that the wrongdoer should have anticipated that an injury of some character would probably result from his negligent act, and the question whether the consequences should have been anticipated is for the jury only when the evidence is such that the jury could properly find for the wrongdoer.
    [Ed. Note. — Eor other cases, see Negligence, Cent. Dig. §§ 72, 277-353; Dec. Dig. §§ 59, 136.]
    8. Master and ■ Servant (§ 97) — Injury to Servant — Negligence.
    Where an employs, engaged in removing rails from a railroad track and assisting in loading them on cars, was injured by being struck by a rail when moved by the engineer in charge of the hoisting appliance, and it appeared that the engineer knew that the rail had been caught in some way and continued applying the steam to force it loose, and that he always gave the men time to get out of danger, and that he asked the employs to stand out of the way as he might be injured, the injury was one to be anticipated by the employer as a matter of law.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 163; Dec. Dig. § 97.]
    Appeal from District Court, Harrison. County.
    Action by Lucian Shaw against the Waterman Lumber Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Young & Stincheomb, of Longview, and F. H. Prendergast, of. Marshall, for appellant. Beard & Davidson, of Marshall, for appel-lee.

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

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

   HODGES, J.

This appeal is from a judg-' ment in favor of the appellee against the appellant for the sum of $5,000 awarded as damages for personal injuries. The appellant is a private corporation engaged in the manufacture and sale of lumber. In connection with its sawmill it owns and operates a railroad extending 10 or 12 miles into the forest, for the purpose of transporting logs and supplying its mill with timber. This railroad is of the standard gauge and has several branches, or spurs, leading off from the main line in different directions. The rolling stock used in the operation of this railroad consisted of a shay locomotive and a number of flat cars adapted to the carriage of logs, iron rails, and cross-ties. In June, 1912, the appellee, Lucian Shaw, was in the service of the appellant as the foreman of a gang of men employed to keep the track in repair. On the date of his injury he and his crew were engaged in taking up and removing a spur track. A train consisting of the locomotive, three flat cars, and a ear on which was constructed what is termed a “loader” was carried out to the place of work for the purpose of transporting the ties and rails to another part of the line. It was the duty of the appellee and his men to first draw the spikes, loosen the rails, and place them near the outer edge of the ties. The loading machine was under the immediate supervision of W. T. Gill, another employs. Gill was also the engineer of the train, and had charge of that branch of the service. The manner in which the work was performed is thus describéd: The train of flat cars and the loader had been carried out to the spur track. This track extended east and west; the west end being connected with the main line of the railway. The employés began by taking up the track from the east end, and continued towards the west until they got to the place where the appellee was injured. The steam loader was operated by an engine of its own. It had a cable that extended out over a derrick that worked from one side of the track to the other. This derrick extended out and at its proper elevation about halfway over the car next to it, and was adjusted so that it could lift ties on the side of the track and be turned towards the front of the train and place them on the tie car. The derrick could also pick up the rails on the side of the “steel car,” and could then be swung over the middle of the car in such a way as to place the rails in position on the car. The train was stopped after being run out to a convenient distance on the spur track, and the appellee and his men pulled the spikes from the cross-ties and took the bolts from the angle bars, thus disconnecting the rails, and pulled them back and out in such a way that they could be handled. They would then take the cable of the loader and fasten it around the rails or the ties, as the case might be, give the signal to Gill, who was operating the engine of the loader, and the material would be hoisted into place. The appellee testified that, when he got to the work the morning he was injured, he and. his men commenced pulling the spikes and getting ready to. take the steel up. It was his duty to see that the cable was fastened around the rails or ties, and to give the signals to Gill to start and stop the loader engine when hoisting the ties or the rails. They had been loading steel and ties all the morning, and resumed work in the afternoon. Appellee called one of his men and told him to tie the cable to a rail which they were preparing to elevate to the car. After the cable had been fastened, appellee gave tlie signal to Gill, and the machine started. The front end of the rail, or the end next to the car, became fastened between the .angle bars of the next rail, and the rail being handled could not be elevated.

Appellee thus testifies: “Mr. Gill made several surges on it, and I flagged him to stop. He slacked up, and I said, ‘All right, boys, let’s get him loose;’ and by that time he made another pull, and the rail flew around and struck me on the ankle. I flagged him by dropping my hands down by my side. When he received that signal it was his duty to stop. He stopped when I first signaled. When he stopped X said, ‘All right, boys, let’s get him loose;’ and I made one step, and by that time he snatched up again. When he snatched up that time I had not given him the signal to stop. It was his duty to stop until I got the rail loose, and until I gave him a signal to start. I gave a signal to start by holding my hands above my shoulders and shaking them, and give a signal to stop by dropping my hands to my side. When he gets the signal to start it is his duty to pull on the rail, and when he gets the signal to stop it is his duty to stop until he gets another signal to start.”

Appellee was corroborated in the main by one other witness. Gill testified that the cable in this instance had been fastened to the center of the rail instead of at the end, as had been the custom; that, when he started his machine at the signal given him by Shaw, he was unable to raise the rail on account of its having become entangled in something. He thought that it had caught in a rotten tie, and continued to apply the steam. He denies that Shaw gave him any signal to stop; says that he was looking at Shaw all the time, and that he saw no signal. He further testified that Shaw, without giving him any notice, walked within reach of the rail and was injured. Gill was corroborated by a number of the other employés who were present at the time.

The evidence is undisputed that, after Shaw stepped toward the rail in the manner described by him, he was struck just above the ankle and his leg broken. He was aft-erwards carried to a hospital, given medical treatment,, and the leg was subsequently amputated somewhere between the knee and the ankle. Shaw was at the time about 42 years of age, and had prior to the injury been a stout, able-bodied man.

At the conclusion of the testimony, the appellant requested the court to instruct a verdict in its favor, which was refused. It is claimed that the great weight of the evidence showed that Shaw never gave any stop signal to Gill, and that he carelessly and recklessly walked within reach of the rail while the hoisting machine was still in operation. While the testimony of a greater number of the witnesses supports that con-. elusion,, there was sufficient evidence to warrant a finding to the contrary. The conflict presented a question for the. jury, and we do not feel justified in setting aside the verdict.

It is also contended that there was a variance between the facts alleged in the appellee’s original petition as to the manner in which the injury occurred and the facts proven. The petition alleged: “That, acting upon the signal, the machine was stopped, and the plaintiff reached forward to unloosen the rail so that it might go forward onto the car in the usual manner, when said Gill negligently, unmindfully, and carelessly threw on the full force of the machine and jerked violently at the rail,” etc. Shaw testified that, after giving the stop signal, he made one step in the direction of the end of the rail that was fastened, and was then struck by the end nearest to him as it swung around. The variance consists, it will be observed, in the particular situation Shaw was in and what he was doing at the time the rail struck him. The averments as to how the injury was inflicted (that is, what particular conduct or act's on the part of the appellant’s employé caused it) were proven substantially as alleged. It is immaterial whether Shaw was in the act of remedying the trouble, or -had just started towards the end of the rail for that purpdse.

Among other defenses interposed was that alleging that Shaw and Gill were fellow servants, and it is argued that this fact justified the peremptory instruction. In reply to that defense it is insisted by counsel for appellee that Shaw and Gill and their eoworkers were engaged in operating a train of cars for a railroad within the meaning of article 6640 of the Revised Civil Statutes 1911, and that the fellow-servant doctrine has no application. It has been definitely decided by our Supreme Court mofe than once that a railroad such as that 'owned by the appellant in this instance comes within the provisions of the article of the statute referred to. Sullivan-Sanford Lumber Co. v. Watson (Sup.) 155 S. W. 179. We are not disposed, however, to hold that the men were at the time engaged in operating cars, within the meaning of the statute. T. & Ft. S. Ry. Co. v. Anderson, 102 Tex. 402, 118 S. W. 127; G., C. & S. F. Ry. Co. v. Johnson, 47 Tex. Civ. App. 74, 103 S. W. 447.

But we think there is another sufficient. reason for refusing the requested charge. Article 6641 is as follows: “All persons engaged in the service of any person, receiver, or eorporatioii controlling or operating a railroad or street railway, the line of which shall be situated in whole or in part in this state, who are intrusted by such person, receiver, or corporation with the authority of superintendence, control, or command of the other servants or employés of such person, receiver, or corporation, or with the authority to direct any other employé in the performance of any duty of such employs, are vice principals of such person, receiver, or corporation, and are not fellow servants with their coemployés.” Shaw testified that, while performing this work, he and his men were subject to the orders and direction of Gill, although both he and Gill were under the general superintendence of a man by the name of Bogue. While this is disputed in part by Gill, the question became an issue of fact for the jury. If what Shaw stated was true, under the provisions of the article above quoted, he aDd Gill were not fellow servants. The court, therefore, was not authorized to give a peremptory instruction predicated upon the assumption that Shaw was not subject to the direction and control of GUI.

Upon the measure of damages, the court gave the following charge: “If you find for the plaintiff, Lucian Shaw, then, in fixing the amount of damages,( you may take into consideration the nature, character, and extent of the injury that you may find from the evidence was sustained by Lucian Shaw, as the proximate result of the defendant’s negligence, if any, any expenses for doctors’ bills he has paid or'obligated himself to pay as a result of said injury, and any physical suffering and pain, if any, that you may find from the evidence has been endured by the plaintiff as the direct result of said injury and negligence, if any, up to the time of this trial, and any physical and mental pain that he may suffer in the future as the direct result of said negligence, if any, and any time lost, if any, that you may find from the evidence has been lost by the plaintiff up to the time of this trial, and any diminished capacity to earn money in the future, if any, by reason of the negligence of the defendant, if any; and you will determine what amount of money, if paid in cash now, will fairly and reasonably compensate said plaintiff for said injury, if any, and make the same the amount of your verdict.” Shaw testified on the trial that his amputated limb was still giving him trouble; that the end of it would swell and pain him, and was the seat of many unpleasant sensations.

Appellant contends that the portion of the charge quoted which authorized a recovery for any physical and mental pain that Shaw might suffer in the future was unwarranted because of the absence of any appropriate pleading. The petition contained the following averments as to the damages sustained: “That he remained in bed for more than three months and suffered untold agony and pain; that his limb refused to heal, so violent had been the blow, and it became necessary to amputate it, and the leg was taken off- between the knee and the ankle. Plaintiff shows that he was confined to his bed and room for more than four months; that he nursed a broken limb that would not heal for more than 90 days; that he suffered great and excruciating pain with said limb, and in having the same amputated; that he has become a cripple for life, and the great and excessive pain has preyed upon his physicial system to a very great degree. He shows that it was necessary for him to employ a physician and to buy medicines and to secure a nurse at a great expense to himself in the sum of $200. He shows that he has lost five months’ time of the reasonable value of $60 per month. He shows that his capacity to earn money in the future has been greatly depreciated, and that he is now, or was at the time of the injury, a man of only 42 years of age and in robust health; that he will have to go through life on one leg and as a cripple, and his earning capacity will be greatly depreciated and the length of his life shortened; that he has suffered with said limb, during his long-continued illness, great physical and mental pain and anguish; that he has lain awake at nights for many, many weeks, unable to sleep because of the great and excruciating pain, to his great damage in the sum of $20,000, and in a total sum of $20,-500.” It is conceded that those quoted are the only averments which can be referred to as supporting the right to recover damages for future pain and suffering.

In T. & P. Ry. Co. v. Curry, 64 Tex. 86, a similar question was involved, and, in disposing of it, Justice Stay ton used this language: “The rule regulating pleading in this class of cases is thus stated: ‘The general allegation of damages will suffice to let in proof and to warrant recovery of all such damages as naturally and necessarily result from the wrongful act complained.of; the law implies such damages (that is, damages of that sort), and proof only is necessary to show the extent and amount. But where damages actually sustained do not necessarily result from the act complained of, and consequently are not implied by law, the plaintiff must state in his declaration the particular damage which he has sustained, for notice thereof to the defendant; otherwise the plaintiff will not be permitted to give evidence of it on the trial.’ 3 Sutherland on Damages, 426. * * * This is a just rule of pleading, for it requires the person seeking relief, by his pleadings, to inform the adverse party of the facts upon which he intends to rely for a recovery, thereby avoiding surprise. The rule, however, is satisfied when, from the facts stated, the law infers other fact or facts, for, whatsoever the law infers from a given state of facts, the adverse party is presumed to know, and must take notice of, whether it is specially pleaded or not. The law infers, when such injuries to the person are shown to have existed as are alleged and proved in this case, that physical pain resulted therefrom, for by common observation we know that, in the ordinary operation of natural laws, pain is a necessary result of such injuries, unless the condition of the injured person be abnormal, wbicb will not be presumed. This is equally true as to mental suffering, for it is contrary to common experience and the laws of man’s existence and nature that any sane, healthy, and robust person by physical injuries may be made a cripple for life, in a matter affecting his health, comfort, or capacity, without mental pain resulting from the changed condition.” This language is applicable to the facts involved in this case. Shaw’s leg had been broken by a violent blow, and was subsequently amputated. It was unnecessary for him to allege that he suffered physical and mental pain as a result of those injuries, for, as stated above, that would be inferred as the natural consequence of the physical conditions described. But the question here is: Did those averments justify the inference that mental and physical pain would be felt in the future; that is, after the date of the trial? We think so. The normal inference would be that pain would be felt to a greater or less extent till the wound healed; and it is a matter of common experience that, in cases where limbs are amputated, peculiar nervous sensations continue indefinitely. It was not alleged that the wounds had healed at the time of the trial, and there was no sufficient basis for a presumption that the pains had entirely ceased. The assignment is overruled.

Appellant requested the following charge: “You are charged that the fact that the plaintiff received an injury does not entitle him to recover, but, before he can recover, the burden is upon him to prove, by a preponderance of the evidence, that the engineer of the loader was guilty of negligence that resulted in the injury; and you are further instructed that an act cannot be negligent unless a person of ordinary care, situated as the engineer was, would have reasonably foreseen that the act might result in injury to some one. Therefore, if you find from the evidence that the plaintiff did give the engineer a signal to stop the loader engine, and that the engineer did stop the said engine, and started it again without a signal, but you further find that a person of ordinary care, situated as the engineer was, would not have reasonably foreseen that the engine being thus started might result in injury to some one, he would not be guilty of negligence, and if you so find you will return a verdict for the defendant.” It-is true that in order to create actionable negligence the circumstances must be such that the actor should have anticipated that an injury of some character would probably result from the negligent conduct. T. & P. Ry. Co. v. Bigham, 90 Tex. 223, 38 S. W. 162. The question of whether or not the consequences should have been anticipated should be submitted to the jury only when the evidence is such that a jury might properly find in favor of the party sought to be held liable for the injury. We are of the opinion that no such state of facts existed in this instance. Considering the situation of the parties, the length and weight of the steel rail being handled, and the force employed to hoist it, there is no room for the assumption on the part of Gill that no injury would probably result to one coming within its reach. According to Gill’s own testimony, he knew that the rail was fastened in some way, and his object in continuing the application of steam was to force it loose. He does not intimate that he did not think Shaw was in danger if within reach of the rail. Gill testified as follows: “I always gave them time to get out of danger. That morning Shaw would venture in, and I asked him to please stand out of the way as he might get hurt.” This indicates that, Gill had in mind at the time an existing apprehension that some of them might get hurt if they came within reach of the rail. It appeared to be a custom for the parties who fastened the cable to the rail to then step back out of the way. The requested charge is also subject to the objection that it repeats to the jury the statement that the burden of proof is on the plaintiff and contains other matter in its preamble which was calculated to mislead the jury to the prejudice of* the appellee.

All of the remaining assignments of error have been considered. We deem it unnecessary to discuss them in detail.

The judgment of the district court is affirmed.


source: Caselaw Access Project

author: HIGGINS, J.

license: Public Domain

text:
    FIRST NAT. BANK OF MIDLAND v. POWELL.
    (Court of Civil Appeals of Texas. El Paso.
    March 12, 1914.
    Rehearing Denied April 9, 1914.)
    1. Bills and Notes (§ 516) — Discharge oe Indorser — Release oe Security — Consent oe Indorsee — Sufficiency oe Evidence.
    In an action against defendant as indorser of a note secured by a chattel mortgage, executed to him for cattle sold, evidence held to show that defendant consented to a sale of the cattle by the one purchasing them from him, so that the consent of the indorsee to the sale did not discharge the indorser from his liability as such.
    [Ed. Note. — For other eases, see Bills and Notes, Cent. Dig. §§ 1800-1806; Dec. Dig. § 516.’]
    2. Bills and Notes (§ 301) — Discharge oe Indorser — Release oe Security — Sale oe Proeerty.
    If the payee and indorser of a note, received for cattle sold and secured by a mortgage on the cattle, consented to their sale by the mortgagor, he could not escape liability on the note as an indorser because such sale was also consented to by his indorsee; his consent waiving his right to insist that the indorsee should maintain the security unimpaired.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 706-721; Dec. Dig. § 301.’]
    3. Bills and Notes (§ 301) — Rights oe In-dorser.
    It would be immaterial upon the rights of the indorser of a note received for cattle and secured by a mortgage on tbe cattle, that the proceeds of a sale of the cattle, which were sold with the consent of the indorser and in-dorsee, were reinvested before they finally came into the possession of the indorsee.
    [Ed. Note. — -Eor other cases, see Bills and Notes, Cent. Dig. §§ 706-721; Dec. Dig. § 301.]
    4. Bills and Notes (§ 301) — Duties oe In-dorsee.
    If any of the proceeds of mortgaged property came into the hands of the indorsee of the secured note, it was its duty to apply them to the payment of the note if it knew that the money was the proceeds of such property or was chargeable with such knowledge.
    [Ed. Note. — Eor other cases, see Bills and Notes, Cent. Dig. §§ 706-721; Dec. Dig. § 301.]
    5. Bills and Notes (§ 301)— Sale oe Property-Rights oe Mortgagee.
    If a chattel mortgagee consented to a sale of the mortgaged property, he was entitled to credit, when sued on the secured note by his indorsee, only for the proceeds of the property to the sale of which he consented.
    [Ed. Note. — Eor other cases, see Bills and Notes, Cent. Dig. §§ 706i-721; Dec. Dig. § 301.]
    Appeal from District Court, Ector County; Dan M. Jackson, Judge.
    Action by the First National Bank of Midland against D. P. Powell. From a judgment for defendant, plaintiff appeals.
    Reversed and rendered.
    E. M. Whitaker, of El Paso, J. M. Caldwell, of Midland, and A. S. Hawkins, of Phoenix, Ariz., for appellant. Coree & Turner, of Ft. Worth, E. A. Judkins, of Odessa, and Theodore Mack, of Ft. Worth, for appellee.

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

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

   HIGGINS, J.

This is the second appeal in this case; former opinion appearing in 149 S. W. 1096. It is a suit by appellant against appellee as an indorser upon a promissory note in sum of $5,793, dated May 11, 1909, due four months after date, executed by A. A. Frields, payable to order of appellee, bearing interest from date at rate of 10 per 'cent, per annum, payment of which was secured by chattel mortgage upon 200 head of steers. 'Frields was not made party defendant; his insolvency and residence beyond the limits of the state being alleged as excuse for not suing him.

Powell was the o.wner of said 200 head of steers situate in Midland county, Tex., which he desired to sell and which Frields desired to purchase. Not having the money to pay for same, Frields conferred with the appellant bank, and it .was agreed between all parties that Frields should give his note'to Powell to cover the purchase price, secured by chattel mortgage upon the cattle, and the bank was to cash the note for Powell, who was to transfer the note and mortgage to the bank. The bank was to prepare and did prepare all of the necessary papers, and it was understood by all parties that the cattle were to be removed by Frields to Caddo county, Okl., and the mortgage so provided. The mortgage contained the following provisions: “If default be made in any of the conditions herein contained, or any part thereof, or, if any secreting or removal from their location, any abuse or misuse, any sale, any seizure whatever by any proceeds of law of said described personal property, or of any part of it, be either made or attempted by said mortgagor, or by any person or persons claiming under him of in behalf of either or by or in behalf of any creditor or creditors of said mortgagor, or, if from any other cause the security shall become inadequate, or the mortgagee shall at - any time during this mortgage become apprehensive of the ability of the mortgagor to perform any of the conditions, covenants or agreements herein contained, then and in such case, the said mortgagee, L. P. Powell, and successors, are hereby fully authorized and empowered to take immediate possession of the property hereinbefore described, and sell same at public auction, for cash, at the door of the County Court House, in Caddo County, Oklahoma, by giving the notice of the time and place of sale, as is now required by the statutes of the State of Oklahoma, in sales of personal property under execution. * * * ” After their removal to Oklahoma the cattle were shipped to market by Frields and sold and the proceeds appropriated by him. The note was transferred to the bank by ordinary blank indorsement, and the amount thereof paid by the bank to Powell.

The answer of defendant is very voluminous, and it is not necessary to detail the various matters and defenses set up.

The cause was tried before a jury and submitted upon special issues. The issues submitted and answers thereto read:

“1. Did A. A. Frields make, execute, and deliver the note sued on and the mortgage, securing the same? A. Tes.
“2. Did L. P. Powell indorse said note to the First National Bank of Midland? A. Tes.
“3. Did A. A. Frields dispose of and sell the cattle mentioned in the mortgage, if any, after he had transferred same from Midland, Tex., to Oklahoma, if he did?. A. Tes.
“4. Did plaintiff herein, acting through its officers, "Judge E. R. Bryan and W. H. Cow-den, or either of them, consent to the sale, if any, by Frields of the cattle mentioned in the mortgage? A. Tes.
“5. Did the defendant, L. P. Powell, consent to the sale, if any, by Frields, of the cattle mentioned in the mortgage? A. No.
“6. If you have answered question 3 in the affirmative, please state what was the reasonable market value of the mortgage security, if any, meaning the Powell-Frields cattle? A. $5,800.
“7. If you have answered questions Nos. 3 and 4 in the affirmative, then answer: Did any of the proceeds of the Powell cattle ever come into the possession of the plaintiff, at any time? A. Yes.
“8. If you have answered question No. 7 in the affirmative, then answer this: Were the proceeds received under such circumstances that, the plaintiff knew or should have known that same was or were the proceeds of said mortgaged property? A. Yes.
“9. If you have answered question No. 8 in the affirmative, please say what part or portion, if any, of the proceeds of the mortgage security, that is the Powell cattle, came into the possession of the bank after Mr. Bryan and Mr. Cowden or either of them, knew, or the circumstances surrounding the transactions were such that they should have known, that said funds or any of them coming into their possession, were the proceeds of the mortgage security? A. $6,475.66.
• “10. If you have answered the above question, No. 9, that any portion or part of the proceeds came into the possession of the bank, then please state what the amounts were and the dates of saíne, give amount or amounts and date of same. A. $6,475.66.”

The first assignment complains of the refusal of a peremptory instruction in favor of appellant, and in support thereof it is first urged that the peremptory instruction should have been given because the evidence disclosed that, at the time of the consummation of the transaction out of which this litigation arose, Powell agreed that Frields might sell the cattle, which consent precluded him from claiming a release from liability upon his in-dorsement contract, by reason of any consent which the' bank might likewise have given to such sale. In other words, the consent of the bank to the sale of the cattle by Frields did not release Powell as an .indorser upon the note, because he likewise had consented, and was a party to the arrangement.

In connection with this contention, we will consider the fourth assignment to the effect that the finding of the jury in response to the fifth issue, that Powell did not consent to the sale of the cattle, is contrary to the undisputed evidence.

Powell testified:

“I first went around to the bank to see Mr. Cowden. I went there for the purpose of making this deal; went to see as to Frields’ responsibility, and to see if they would cash the note. I asked Mr. Cowden to take the note without my indorsement. He refused to do that. I indorsed the note, simply putting my name on the back of the note, ‘L. P. Powell.’ I said that when this mortgage was drawn up it was contemplated that I should be away, and it was. understood that Judge Bryan would fix the mortgage for me. I suppose that he did that. I have no complaint to make at that. I do not know anything about the mortgage. I never paid him anything for drawing this mortgage. The note was drawn up and left at the bank, and the cattle were turned over, and I went in and signed the note the first time I was in Midland, afterwards. I did not get the money until I put my name on the back of the note. As to whether or not it is a fact that I knew in August before the note became due that Frields was shipping out a number of these cattle — Mr. Cowden told me he was shipping out some cattle. I knew it from him. I did not make any objection. It was’ none of my business. I did not agree with Frields at all that the cattle were to be taken to Oklahoma. I heard him tell Cowden they were going to be taken to Oklahoma. At the time I made the trade I knew that the cattle were to be taken to Oklahoma. I made no objection to the arrangements to that effect. I knew Frields was going to take the cattle out of the state; understood so. I knew he was buying them for that purpose. I did not know that they had gone out of the state before I got the money on the note. I did not know what had become of them. I supposed they had gone out of the state. I didn’t see them go out of the state. I understood so, but I did not know it. I had the cattle turned over to Frields by Jordan,, for me. I do not know whether or not he was my agent. I was buying them from him. I authorized him, and the bank, together, to turn them over to him. I do not know whether or not I asked Judge Bryan to draw up this note and mortgage. We had a conversation to that effect. I do not know whether I asked him, or he volunteered to do it; he represented the bank. I do not know whether I asked him, or just how it was. I could not say.
“I never told Frields that he could ship the cattle to Oklahoma. I do not know whether either yes or no will apply to the question, but I will say no to the question, ‘Vere they shipped out of the state with your consent or without your consent?’ I do not know whether or not I answered yes to that question last term of court. I did not tell him he could ship them out of the state, because he didn’t ask me. I might have sat there and not said anything. I did not say whether he could ship them out. I do not mean that I told him that he could ship them out. I might have consented by not saying anything, if you call that consent. I knew the cattle were intended to be shipped out of the state. I understood that they were to be sold when they got fat. Frields told Cowden that he expected to sell them on the market in order to get money to pay the note; told him that in my presence. He told Cowden, in my presence, that he probably would begin shipping out the cattle in 60 days. I understood that, when the cattle were sold to Frields, they would be shipped to Oklahoma. I understood he told - him that they were to be shipped out and fattened to go on the market. At to whether I made an objection when I understood that Frields was shipping them out in 60 days — it was none of my business. I did not at the expiration of 60 days make inquiry as . to whether or not he was shipping them out. I do not remember whether or not Judge Bryan was there, at the time of the conversation as to selling the cattle when they got fat; X do not think so. Frields told him they were going- to ship out the cattle when they gathered in about 60 days. That conversation was between Frields and Cow-den. The remarks were not addressed to me; I did not make any reply to them. As to why I did not make any reply or objection, it was not any of my arrangements. I never in any way, at any time, with Mr. Bryan or Mr. Cowden, or with Mr. Frields, consented that these cattle might be shipped out of Oklahoma and sold, prior to the maturity of the debt and the mortgage. I understood these cattle were going to Oklahoma. I consented for him to make that arrangement with Cowden. I did not consent for him to do anything. I knew they were going to Oklahoma. X consented for him to make that arrangement with Cowden. I knew they had to go to Oklahoma. That did not include the shipment of the cattle out when they were fat, which it was understood was about 60 days. The statement that the cattle would be shipped out in about 60 days was Cowden and Frields talking; they made that arrangement in my presence. I did not consent for him to do it. I did not state that I consented to the terms and details being arranged by Cowden and Frields, in my. presence; I did not have anything to say in it. I heard the arrangements made, in my presence, before I got a dollar on the note. I do not know whether or not that was a part of the trade with reference to these cattle, part of the condition of which they were bought. I heard him — heard them talking about that; I do not know whether that made any difference with Cowden or not. That was all talked over before a dollar was put up — before I turned over the cattle. I suppose that was part of the understanding before the bank put up a dollar, or before I turned over a steer. It was without my permission that the understanding was had that the cattle were to go to Oklahoma and be shipped out in about 60 days. I suppose that was the understanding with them. I understood that was the arrangements, among themselves. I understood that that was the original trade made right there; that was what they did. I consented for them to make the arrangements that the cattle were to go to Oklahoma ; I didn’t have a word to say about the cattle going to Oklahoma. They made the arrangements; not with my knowledge and consent, but with my knowledge. I heard him tell Frields, heard him make that arrangement, that the cattle were to go to Oklahoma and be shipped out in 60 days.”

In the light of this testimony there can be no doubt that Powell, when negotiating with Frields for the sale of the cattle and with the bank to cash the note which Frields proposed to give, was fully cognizant that it was contemplated and understood by Frields and the bank that Frields was to ship the cattle to market when ready, sell same, and apply proceeds upon note, and was a party to such arrangement. While he denies that he consented, yet this denial is a false conclusion which he deducts from the fact that he did not in express terms signify assent. His confessed silence and acquiescence in the understanding when the negotiations were in progress is susceptible of no other possible interpretation, except that he at least impliedly consented, and he cannot escapé the consequences of his conduct by afterwards denying what his conduct indubitably established. The finding of the jury in response to the fifth issue that he did not consent to the sale is contrary to the facts shown and admitted by his own testimony, and we find that he did so consent. Authority upon the question is not necessary. The facts as he himself relates them speak for themselves, and if he consented to the sale he can with ill grace seek, and will not be permitted, to escape liability because the sale was likewise consented to by the bank. Such consent upon his part constituted a waiver of his right to insist that the bank should maintain unimpaired the security and not consent to sale thereof by Frields.

The fourth proposition attacks the sufficiency of the evidence to support the finding upon the seventh issue; the contention in effect being that the finding that the proceeds of the Powell cattle came into the hands of the bank is unwarranted because such proceeds were not the direct proceeds of Po.well cattle, but of other cattle that had been bought and paid for with such proceeds. This position is not sound. It matters not that the proceeds may have been once reinvested before reaching the bank. They were nevertheless the proceeds of the Powell cattle which came directly into the hands of the bank. The former opinion rendered in-this case does not conflict with this view. Upon that appeal the fifth paragraph of the charge was criticised for laying down the doctrine that Powell was released if proceeds of the cattle came indirectly into the hands of the bank, and it was not intended to hold that it would not be released if moneys came into its hands which were the indirect proceeds of the cattle in the manner indicated. The distinction is clear between proceeds that may be indirect and proceeds that may have indirectly come into its hands.

The fifth proposition, submitted in support of the first assignment, reads: “A mortgagee has no lien on the proceeds arising from the voluntary sale of the chattels by the mortgagor, and hence any moneys coming into the hands of the appellant bank and deposited to the credit of the mortgagor stood,on the same footing as any other deposits, by the mortgagor, even though such deposits may, have been the proceeds of property purchased by the mortgagor with the original proceeds of the mortgaged property.”

This contention was fully considered., and adversely disposed of npon former appeal in the following language: “If any of the proceeds of the mortgaged property came into the hands of the bank, it was its duty to appropriate and apply the same to the payment of the note sued upon if it knew that such moneys were proceeds of the mortgaged property, or if the circumstances w^e such as to charge it with such knowledge. It is but the application of the principle that, when mortgaged property comes into the hands or under the control of the creditor and is then lost by his negligence or design, the surety is released to the extent of the security so lost. Murrell v. Scott [51 Tex. 520], and Grisard v. Hinson [50 Ark. 235, 6 S. W. 907]; 1 Brandt on S. & G. (3d Ed.) § 498. It appears that a portion of the proceeds of the mortgaged property was deposited by Frields with the bank, which he was afterwards permitted to cheek out, and to permit him to do so, with knowledge of the fact that such moneys were the proceeds of the mortgaged cattle, would be in violation of the rule just quoted and would release Powell to that extent; and the same rule would apply although the bank had no actual knowledge of the character of the moneys, if the surrounding facts and circumstances were sufficient to charge them with notice of the character of such money, or put them on inquiry in regard thereto.” Bank v. Powell, 149 S. W. 1096.

The contention is next made under the sixth, seventh,.and eighth propositions, supporting the first assignment, that the evidence was insufficient to charge the bank with notice of the fact that the money deposited by Erields was the proceeds of the cattle purchased with the original proceeds of the Powell cattle. The evidence upon the issue is circumstantial and quite lengthy. It has been carefully considered and the conclusion reached that all of the surrounding facts and circumstances connected with this transaction from its inception were sufficient to support the eighth finding that certain deposits were made by Erields under such circumstances that the bank should have known that same were proceeds of the Powell cattle.

Error is next assigned to the refusal of the court to render judgment for the face of the note with interest and attorney’s fees as therein provided, less the sum of $3,747.23, because the undisputed evidence discloses that was all of the proceeds of the Powell cattle which came into hands of the bank. The uncontroverted evidence discloses that 52 head were shipped on June 12th and sold for for $1,455; 40 head on July 26th and sold for $1,042.09; 28 head on August 1st and sold for $606.65; 31 head were shipped August 7th and sold for $652.59. There was another shipment of September 19th, which contained 43 head of the Powell cattle; but there is no evidence of the amount for which they sold, and, furthermore, the proceeds of this last shipment did not come into the hands of the bank, as September 13th was the date of the last deposit made by Erields. The foregoing shipments account for all of the Powell cattle, except four that' died and two that strayed and were lost. This assignment must therefore be sustained, and since this was the fourth trial, and the evidence has been fully developed, the cause will be reversed and judgment here rendered in favor of the bank for the face of the note sued upon with interest and attorney’s fees, less the sums aforesaid, as in.case of partial payments, viz., $1,455 paid on June 12, 1909; $1,042.09 paid on July 26, 1909; $606.65 paid on August 1, 1909; and $652.59 paid on August 7, 1909.

Appellee replies to this assignment; First: “There being abundant evidence to sustain the findings by the jury that the bank through its officers consented to the sale of the mortgaged property, and that Powell did not consent to the same, and the reasonable market value of the mortgaged security was $5,800, such finding by the jury entitled the defendant below to a release as surety to the extent of the value of the property so disposed of; such act being an affirmative act upon the part of the bank.” And second: “The amount realized from the sale of the mortgaged property is not a test of the relief to which the defendant is entitled. The measure of defendant’s damages which may be used to offset or recoup the amount of plaintiff’s recovery is the reasonable market value of the mortgaged property at the time o'f the sale of the mortgaged property under the affirmative act of the bank.”

These contentions are disposed of by our finding that Powell consented to the sale of the cattle. Since he consented, he is entitled to credit only for the proceeds as was held upon the former appeal. Furthermore, the finding of the jury that the cattle were of the reasonable market value of $5,800 is supported only by the testimony of Powell that the 200 head were worth $29 per head at Midland at the time the note was executed. This does not show their market value at a different time and place, and the undisput-' ed evidence discloses that they were sold on the Kansas City market at the highest market prices. For both of the reasons indicated, the counter propositions of the appellee are untenable.

By the sixth assignment it is complained that the finding of the jury upon the sixth issue that the Powell cattle were of the reasonable market value of $5,800 is unsupported by tbe evidence. As is just indicated above, this contention is well taken and the assignment is-sustained.

The seventh assignment complains of the insufficiency of the evidence to support the finding upon the ninth issue that $6,475.66 came into the hands of the bank as the proceeds of the Powell cattle. This likewise is sustained. As shown above, the amount of the proceeds of the Powell cattle which could possibly have reached the bank were the proceeds of the four shipments mentioned, viz., |1,455, $1,042.09, $606.65, and $652.59— a total of $3,756.33.

Assignments Nos. 11, 12, 13, 14, and 15, are overruled. If any of them present error, it is not reversible in its nature.

•Under the views expressed it becomes unnecessary to pass upon various other assignments appearing in the record.

The cause is reversed and judgment here rendered in favor of appellant for $2,387.01, with interest thereon from September 11, 1909, at the rate of 10 per cent, per annum, and that it recover all of its costs.


author: Charles L. Berner,

text:
    NEWMAN v. LYMAN et al.
    (Court of Civil Appeals of Texas. Amarillo.
    March 7, 1914.
    Rehearing Denied April 4, 1914.)
    1. Frauds, Statute oe (§ 38) — False Representations — Application oe Statute.
    Rev. St. Mo. 1909, § 2785, providing that no action shall be brought to charge any person by reason of any representations made concerning the credit, ability, or dealings of any other person, unless such representations be in writing, and subscribed by the parties charged, would not apply to representations made by defendant as to the solvency, etc., of a corporation whose stock he sold to plaintiff, where defendant owned the stock, and by means of the sale also secured the release of his own personal liability on commercial paper.
    LEd. Note. — For other cases, see Frauds, Statute of, Cent. Dig. § 60; Dec. Dig. § 38.]
    2. Cancellation oe Instruments (§ 45)— Actions — Burden oe Prooe.
    In an action to have a transfer of notes by plaintiff in consideration of corporate stock declared fraudulent, and to have the notes surrendered, or, in the alternative, for a personal judgment against defendant for damages from fraudulent representations in inducing plaintiff to buy the stock, the general rule as to the burden of proof in fraud cases applies.
    [Ed. Note. — For other cases, see Cancellation of Instruments, Cent. Dig. §§ 100, 101; Dec. Dig. § 45.]
    3. Fraud (§ 22) — Misrepresentations — Duty to Discover.
    ' One who undertakes to discover the truth of representations made to him is charged with knowledge of everything which a proper investigation would disclose, and would not be justified in acting upon fraudulent representations merely because they were made to him.
    [Ed. Note. — For other cases, see Fraud, Cent. Dig. §§ 19-23; Dec. Dig. § 22.]
    Appeal from District Court, Hemphill County; F. P. Greever, Judge.
    Action by A.' M. Newman against H. E. Lyman and others. From a judgment for defendants, plaintiff appeals.
    Affirmed.
    H. E. Hoover, of Canadian, for appellant. Fisher & Palmer, of Canadian, for appellees.
    HALL, J. Appellant, plaintiff in the court below, filed this suit against H. E. Lyman.

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

   Charles L. Berner,

W. I. Burney, A. M. Jines, John A. Ross, Richard Todd, Carl Loui Lundquist, and Thomas F. Moody, alleging in substance that on the 8th day of February, 1911, he was the owner of certain vendor’s lien notes upon certain lands in Ochil-tree counts’’, Tex., said notes, principal, and interest aggregating $2,589.40; that on and prior t® said date the defendant Lyman was secretary of the Manufacturers’ Brokerage Company, a corporation existing under the laws of the state of Missouri, and that defendant Berner was “a kind of real estate shyster” in and around Topeka, Kan., and was a friend and “stool pigeon” of the defendant Lyman; that on and prior to said date defendant Lyman, in Kansas City, approached the plaintiff to sell him certain shares of stock in said brokerage company, and represented to plaintiff that the company had a paid-up capital of $100,000, and was engaged in a prosperous business, and making money, and that the defendant Ber-ner was a responsible banker located at Topeka, Kan., and largely interested in the corporation; that the corporation was not only in a flourishing condition, and a proper investment for money, but was one that would make large returns upon the amount invested. He charges that Berner and Lyman were partners in the transaction; that, if they were not partners, they acted together; that Lyman, in order to sell plaintiff the stock in the Manufacturers’ Brokerage Company, represented that the company was solvent, and was doing a good' and profitable business, and was in possession of means for continuing the business, and to earn an increased profit as the business grew older, all of which plaintiff relied upon and believed, and but for which he would not have purchased the stock; that in consideration of these statements he purchased certain stock certificates; that the notes above mentioned were transferred direct from the plaintiff to the defendant Berner, although the trade was made with the defendant Lyman. The plaintiff alleged that the representations made to him which induced him to make the trade were false; that the brokerage company was not doing a prosperous business, and in fact had no business at all, and was at that time insolvent; that the representations were fraudulently made for the purpose of cheating and defrauding plaintiff out of his notes; that the stock certificates were alleged and represented to be worth par, but at the time were and still are absolutely worthless; that at said time the company was largely indebted in excess of defendant’s estate, and were soon thereafter thrown into the hands of a receiver; that it was unable to pay even 50 per cent, of its indebtedness; that immediately upon learning the real facts in the. case he tendered said stock certificates to the defendants, and demanded a return of Ms notes, which was refused; that all of the said notes were unpaid, and still in the hands of defendant Berner. He prayed for judgment against the defendants decreeing the transfer of ¡the notes fraudulent, and that, if he was not entitled to a surrender of the notes, he have personal judgment against the defendants; they having personally answered in the case. He prayed for rescission of the trade on- account of the fraud; that he be decreed to be the owner of the notes; that, upon failure to return the notes, he be awarded a judgment for the amount thereof. By his pleadings he tendered the stock to the defendants. The defendants answered separately. Defendant Lyman answered by general and special demurrers, which were overruled, a general denial and by way of special answer, admitting that he was the active secretary of the brokerage'company, and alleging that plaintiff, with one Coutant and ft. C. Sowder, were officers and directors of the Cash Buyers’ Association, a corporation organized under the laws of Arizona, entered into a contract of writing with the Manufacturers’ Brokerage Company, whereby the Cash Buyers’ Association was to be paid a commission on all sales made for the brokerage company, and that Newman thereby became familiar with the transactions of the brokerage company. He denied that he approached Newman to sell him the stock, but alleged that Newman approached him to purchase it. He set up certain conversations had with Coutant, and particularly denied the allegations in the original petition. He further alleged that he advised Newman and Coutant that the brokerage company was in need of funds, and alleged that Newman had agreed to pay any funds to the company in order to make the stock valuable. He further alleged that Charles L. Berner was an innocent holder and purchaser of the notes for a valuable consideration. It is further alleged that Newman had ratified the contract of sale, that all the representations were made in the state of Missouri, and governed by the laws of that state, and specially pleaded chapter 29, art. 2, § 2785, of the Statutes of Missouri 1909. Charles L. Berner practically adopted the answer set up by defendant Lyman. The suit was dismissed as to the other defendants. The case was tried before the court, and judgment rendered that plaintiff take nothing by his suit. ,

The court filed findings of fact and conclusions of law, finding in substance that Newman, together with Coutant and Sowder, on the 23d day of December, 1910, entered into a written contract with Lyman for the purchase of 128 shares of the brokerage company for the consideration of $2,250; that he deposited with Adrain F. Sherman, as a guaranty that they would perform their part of the contract on or before February 1, 1911, certain securities, and that, upon the failure on their part to pay said $2,250, the plaintiff, Newman, placed with the defendant Lyman the vendor’s lien notes described in the petition which were sold to defendant Ber-ner; that Newman purchased the shares of stock on the 8th day of February, 1911, and before sueh purchase defendant Lyman represented to Newman that said stock had a value, and that the brokerage company was a going concern, and had some 400 or 500 customers; that the brokerage company was solvent on the 23d of December, 1910, and on February 8, 1911, having on the first-named date assets to the extent of $12,675.35, liabilities amounting to $8,391.99, and on February 8, 1911, its assets amounted to $10,000, and its liabilities to $6,453.35, but that said company thereafter became insolvent, and went into the hands of a receiver in May, 1911. The court further finds that prior to the purchase of the stock by Newman lie had access to the books of the brokerage company, and frequently examined them, making inquiry as to its business, and was in a position to know and did know the condition of the affairs of the brokerage company at the time of the purchase of the stock; that prior to the date of the purchase the brokerage company had some 400 or 500 customers in Missouri, Oklahoma, and Kansas, and Newman was induced to purchase the stock in order to consolidate the brokerage company with the Cash Buyers’ Association, for the reasons set out in the written agreement of December 23, 1910. The court further finds that the contract of sale and the representations were made in Missouri, and were not in writing; that the article of the Statutes of Missouri above referred to provides: “No action shall be brought to charge any person upon or by reason of any representation or assurance made concerning the character, conduct, credit, ability, trade or dealings of any other person, unless such representation or assurance be made in writing, and subscribed by the party to be charged thereby, or by some person thereunto by him lawfully authorized” — and that said statute was pleaded as a bar to plaintiff’s cause of action; that Berner was an innocent holder of all the notes in controversy, having purchased the same for a valuable consideration before maturity, and without notice of the alleged vice in their execution, delivery, or transfer; that the face value of the 128 shares of stock was $12,800, the purchase price paid by Newman therefor was $2,250; and that the representations as to the stock being valuable did not therefore mean the par value. The court concluded, as a matter of law, that, the representations made by Lyman to Newman being substantially true, plaintiff would not be entitled to a rescission of the contract, but that judgment should be rendered for Lyman against Newman on that issue; that, plaintiff having been induced to purchase the stock in order to consolidate the Manufacturers’ Brokerage Company with the Cash Buyers’ Association, and not by reason of the representations of .the defendant Lyman, he would not be entitled to a judgment for rescission of the contract, or any of the relief prayed for; that Berner being a bona fide purchaser, was entitled to a judgment against plaintiff, and that plaintiff would not be entitled to any of the relief prayed for as against Berner; that the representations alleged to be fraudulent, having been made in Missouri, and being oral representations, were within the statute of frauds of the state of Missouri above quoted; and that the statute would be a complete bar to plaintiff’s right of recovery by reason of such representations.

The first error assigned by the appellants is that the court erred in the fourth conclusion of law outlined above with reference to the effect of the statute of frauds. The case of McKee v. Rudd, 222 Mo. 344, 121 S. W. 312, 133 Am. St. Rep. 529, is cited by both parties as to the effect of the statute upon the representations. The case cited is not perfectly clear in the application of the facts to the law, but holds that the statute applies to representations of incorporators of a corporation made to one extending it credit, and prevents recovery sought by reason of the representations being fraudulent when the representations were not in writing. In our opinion the case is not applicable to the facts presented by .this record. The plainest statement of the law relating to the facts under consideration which we have been able to find is in Hubbard v. Oliver, 173 Mich. 337, 139 N. W. 77, where the facts were similar, and in which the court construed a statute in the exact language of the Missouri statute construed in the McKee Oase, and uses this language: “The defendant next claims that the statute of frauds precludes recovery; the representations having been made as to the credit of another, citing Bush v. Sprague, 51 Mich. 41, 16 N. W. 222; Hubbard v. Long, 105 Mich. 442, 63 N. W. 644; Getchell v. Dusenbury, 145 Mich. 197, 108 N. W. 723. All these cases are clearly distinguishable from the case at bar. In Hubbard v. Long, supra, it is said: ‘It appears that the arrangement for the purchase was made with the defendant; but the money was paid directly to the bookkeeper of the furniture company, and the defendant never received personally $1 for the purchase price. The fact appears conclusively that the stock which plaintiff received was unissued stock of the company, and which the defendant never possessed.’ In Getchell v. Dusenbury, supra, Mr. Justice Grant said: ‘The defendant directors were not acting in their own behalf. They were not selling their own stock. They made no profit on the transaction. * * * Defendant Bahlke occupies a different position in the transaction than do the other defendants. He was the only one who was directly to profit by the transaction by receiving a commission. * * * I think that, under the authorities, the statute does not cover the representations made by .Bahlke. See Krause v. Cook, 144 Mich. 365, 108 N. W. 81.’ In the instant case defendant not only owned the stock sold, but, as we have seen, by means of the transaction, he secured release of a personal liability upon more than $2,000 of paper. As was said in French v. Fitch, 67 Mich. 492, 494, 35 N. W. 258, 259: ‘The statute was never intended to apply to a case like the present. The representations were made as to the value, then and prospective, of the property of the defendant, and which he was selling to- the plaintiff. The ‘fact that the representations were applied as well to the company’s property as to the defendant’s cannot affect the defendant’s case.’ It is well settled that the statute is limited in its application to cases in which the representation is made for the purpose of obtaining credit for a third person in 20 Cyc. 196, and cases cited in note 83. Here the defendant, by means of his alleged false statements, did not undertake to secure credit for the corporation, but did undertake to sell to plaintiff his own property.”

We think the court erred in his conclusion of law to the effect that the facts of this case brought it within the terms of the statute. The evidence conclusively shows that Newman did not buy stock from the company, but that the stock had already been issued, and was owned and held by Lyman.

The third assignment of error assails the eighth finding of fact by the' court to the effect that Berner was a bona fide holder of the note, and based the assignment upon a statement that the undisputed evidence showed that Berner bought the notes direct, and had the same transferred to him; that he relied upon the statements made by Lyman, and was therefore chargeable under the law with all representations made by and all of the fraud committed by Lyman in procuring the notes. The evidence is sufficient to show that in the sale of the notes Lyman was acting as the agent of Newman, and the authorities cited by appellant upon the question of burden of proof do not apply to the facts in this case. This is not a contest between the maker of the note and one claiming to be a bona fide holder. It is simply a suit based upon fraud and deceit, and the general rule with reference to the burden of proof in cases of fraud applies.

There are a number of other assignments urged in the brief, which it is not necessary for us to consider. The court found as a fact that prior to the purchase of the stock by Newman he had access to the books of the brokerage company, and frequently examined them, and made inquiry as to the business of the company, and was in a position to know and did know the condition of the affairs of the brokerage company at the time of the purchase of the stock. This finding is not excepted to, and is conclusive, and there is sufficient evidence in the record to support it If a party undertakes to discover the truth, then he is bound by everything which a proper investigation would disclose, and the fact that fraudulent representations have been made would not justify him in acting upon them. Garrett v. Burleson, 25 . Tex. Supp. 44; Cresap v. Manor, 63 Tex. 485; Hawkins v. Wells, 17 Tex. Civ. App. 360, 43 S. W. 816.

We find no reversible error in the record, and the judgment is affirmed.


author: HALL, J.

text:
    WELLS FARGO & CO. EXPRESS v. MITCHELL.
    (Court of Civil Appeals of Texas. Amarillo.
    March 21, 1914.)
    1. Courts (§ 62) — Constitutional Pbovi-sions — Terms.
    Const, art. 5, § 29, providing that .the county court shall hold at least four terms for both civil and criminal business annually as may be provided by the Legislature or commissioners’ court, and such other terms as are fixed by that court, being of later adoption, supersede article 5, § 17, requiring the county court to hold a term for criminal business once every month.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 207, 210; Dec. Dig. § 62.]
    2. Courts (§ 63) — Teems oe Coubt — County Court.
    Const, art. 5, § 29, requiring the county court to hold at least four terms annually for both civil and criminal business, as may be provided by the Legislature or commissioners’ court, and such other terms each year as may be fixed by that court, abolishes separate terms of the county court for criminal business, so that the terms fixed for civil business are also terms for criminal business, and an order of the commissioners’ court fixing a separate term for criminal business only is ineffective.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 208-217; Dec. Dig. § 63.]
    Appeal from Cooke County Court; R. V. Bell, Judge.
    Action between the Wells Fargo & Co. Express and J. W. Mitchell. From an adverse judgment, the express company appeals, and appellee moved to dismiss the appeal.
    Motion denied.
    H. L. Stuart, of Oklahoma City, Okl., and Stuart, Bell & Moore of Gainesville, for appellant. Robt. E. Cofer, of Austin, for ap-pellee.

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

   On Motion to Dismiss.

HALL, J.

Appellant has appealed from a judgment of the county court of Cooke county, and appellee moves to dismiss the appeal because this court has not acquired jurisdiction. The facts upon which the motion waá based are stated as follows:

On November 15, 1884, the commissioners’ court of said county entered the following order: “It is ordered by the court that from and after the November term, 1884, of the county, civil, and probate court, the county court of Cooke county, Tex., shall hold but four terms a year for civil, probate, and criminal business, and that said terms shall be begun and held on the first Monday in. January, April, July, and October of each year after and succeeding the above date; and it is further ordered that each of said terms so begun and held shall be for the purpose of disposing of the civil, probate and criminal business of said county during each of said sessions.” On February 20, 1913, this order was entered: “That the terms of the county court for civil and probate business begin and be held on the first Mondays in April, June, August, October, December, and February, and may continue in session until the succeeding term begins, if necessary to dispose of the business on the docket, and the terms of said court for criminal business shall be held on the first Mondays in January, February, March, April, May, June, July, August, September, October, November, and December, of each year, and may continue in session until the succeeding term.” The county court of said county during which the judgment in this case was entered convened its April term, 1913, on Monday, the 7th of said month. The cause was heard, and final judgment rendered for appellee against appellant during the term of court on April 21, 1913. Appellant’s motion for new trial is shown by the transcript to have been overruled on May 10, 1913, and notice of appeal was given the same day, and the transcript shows the court’s term ended on that date. The appeal bond was not filed until May 30th following. The contention of the appellee is that the term of the court expired by operation of law on Monday, May 5, 1913, being the first day of the May term of the court, as fixed by the last order above set out for criminal business, and that notice of an appeal after such expiration of the term was ineffective, and that the filing of the appeal bond on May 30th was more than 20 days after the expiration of the term. The propositions urged are that a court cannot hold two concurrent terms; that, when the county court, under the Constitution and law, and under the order of the commissioners’ court, meets on the first Monday in each month, then the order last above quoted fixing the beginning of a term for criminal business on the first Monday in May ipso facto and by operation of law ends the April term on that date, and that therefore notice of' appeal was given after the term of court had expired, when R. S. art. 2084, requires that such notice shall be given in term time, and that the appeal bond, not having been filed in time, did not give this court jurisdiction. The determination of this controversy depends upon the construction to be placed upon article 5, § 29, of the state Constitution, which is article 1776 of the Revised Statutes of 1911, and upon R. S. art. 1777.

The order last above quoted was evidently framed under article 5, § 17, of tide Constitution, which provides that the county court shall hold a term for criminal business once in every month, as may be provided by law; but it is held in Kilgore v. State, 52 Tex. Cr. R. 447, 108 S. W. 662, that section 29, art. 5, of the Constitution, being adopted subsequently, controls section 17. Section 29, in so far as it is pertinent to this inquiry, provides: “The county court shall hold at least four terms for both civil £nd criminal business annually, as may be provided by the Legislature, or by the commissioners’ court of the county under authority of law, and such other terms each year as may be fixed by the commissioners’ court.” It is held in Hughes v. Doyle, 91 Tex. 421, 44 S. W. 64, ’ that this section of the Constitution is self-enacting and confers power upon commissioners’ courts of the several counties to regulate the times of holding the terms of the county courts in their respective counties within the limits therein prescribed.

Under this section of the Constitution, which we construe to do away with separate terms of the court for criminal business, the order of February 20, 1913, has the effect of providing for six terms of the county court for criminal as well as for civil and probate business. In other words, said order, in so far as it endeavors to fix a separate term for criminal business, is ineffective, and, by virtue of the language of the Constitution, the terms fixed for civil and probate business in said order are also terms for criminal business, and according to the terms of the order it shall begin on the first Mondays in April, June, August, October, December, and February, and may continue in session until the succeeding term begins, if necessary to dispose of the business, civil, probate, and criminal, then on the docket. Matthews v. State, 57 Tex. Cr. R. 328, 122 S. W. 544. Article 1777, R. S. 1911, is not clear as to the number of terms.which the commissioners’ court may order annually, but seems to provide that the court may order 6 terms, or, in any event, not more than 10. terms per year. The order of February 20th, supra, provides for 12 terms of the court for criminal business alone. We think, therefore, that the notice of appeal was given in term time, and the appeal bond filed within 20 days from the adjournment of the court.

The motion to dismiss is therefore overruled.


author: HUFF, C. J.

text:
    ADAIR v. STALLINGS.
    (Court of Civil Appeals of Texas. Amarillo.
    March 14, 1914.
    Rehearing Denied April 4, 1914.)
    1. Justices of the Peace (§ 44) — Jurisdiction — Amount in Controversy.
    Where a justice’s court had jurisdiction of a cause when filed under the claim then presented, jurisdiction was not defeated by the accrual of interest thereon thereafter, though judgment beyond the amount of the jurisdiction could not be remedied.
    [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 157-172; Dec. Dig. § 44.]
    2. Justices oe the Peace (§ 68) — Pleadings —Misjoinder oe Causes oe Action.
    A statement of a cause of action in justice’s court for damages to growing crops by cattle, which showed that plaintiff based his cause of action on defendant’s negligence and willful disregard of plaintiff’s rights, and that the fence and gate through which the cattle entered plaintiff’s field belonged to defendant, and was under his exclusive control, and that the gate was left down by defendant, that the fence was awarded by an arbitration committee to defendant, and that it was agreed between the parties that defendant should keep the fence in repair as a partition fence, was not objectionable on the ground that there was a misjoinder of causes of action.
    [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. § 229; Dec. Dig. § 68.]
    3. Appeal and Error (§ 1041) — Appeal-Change in Cause oe Action.
    A change in the district court, on appeal from a justice’s court, of the cause of action, is harmless where no issue brought about by the change was presented to the jury by the court or the evidence.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4106-4109; Dec. Dig. | 1041.]
    4. Frauds, Statute oe (§ 50) — Parol Contracts — Performance Within a Tear.
    A parol contract, which does not provide that it is not to be performed "within a 'year, and which may be performed on some contingency within a year, is not within the statute of frauds.
    [Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. §§ 75-77; Dec. Dig. § 50.]
    5. Fences (§ 9) — Partition Fences — Agreements — Trespassing Animals — Liability.
    Where three persons divided a partition fence between adjacent landowners and informed the owners of their decision, and the owners then agreed to the division so made, the owners contracted for a partition fence, and one owner failing to maintain in repair the part of the fence allotted to him, thereby permitting his cattle to trespass on the land of the other own-ex-, was liable for the damages sustained. .
    [Ed. Note. — For other cases, see Fences, Cent.. Dig. § 15; Dec. Dig. § 9.]
    Appeal from District Court, Hemphill County; F. P. Greever, Judge.
    Action by Fred Stallings against J. R. Adair. ÍTom a judgment for plaintiff, defendant appeals.
    Affirmed.
    N. P. Willis and Frank Willis, both of Canadian, for appellant. B. M. Baker and J. W. Sanders, both of Canadian, for appellee.

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

   HUFF, C. J.

The appellee, Fred Stallings, brought suit against appellant, J. R. Adair, for damages to growing crop and depredations and destruction of same by appellant’s cattle. The suit was filed in the justice court and appealed to the district court of Hemphill county, which, by act of the Legislature had jurisdiction of appeals' from the justice court.

The appellant’s first assignment of error, is to the effect that the district court had no jurisdiction over the subject-matter. The claim filed in the justice court was for $197.50 with interest. It is urged that at the date of trial the amount of the damage claimed, including interest, was $217, and therefore beyond the jurisdiction of the justice court. • Appellant asserts interest was not claimed in the justice court. The record does not sustain this statement. It is not contended that the justice court did not have jurisdiction when the case was first filed in that court. The justice court haying jurisdiction of the case when filed under the claim then presented, jurisdiction would not be defeated by the accrual of interest thereon thereafter and oust it of jurisdiction. Railway Co. v. Underwood, 100 Tex. 284, 99 S. W. 92, 128 Am. St. Rep. 806; Railway Co. v. Cunnigan, 95 Tex. 439, 67 S. W. 888. The court may not have had jurisdiction to render judgment beyond that amount, but the judgment in this case was for the sum of $166; $16" as interest was remitted by appel-lee after judgment rendered. The court, we think, had jurisdiction.

The statement noted on the justice docket shows that appellee based his cause of action upon appellant’s negligence and willful disregard of appellee’s rights, and further that the fence through which the cattle entered and the gate through which some of the cattle entered the field belonged to the appellant and was under his exclusive control and management, and that the gate through which the cattle entered was left down by appellant, letting the cattle in upon appellee’s crop and destroyed the same; that the fence was awarded by an arbitration committee to appellant, and that it was agreed between appellant and appellee that appellant should keep the said fence up and in repair as a partition fence between appellant and appellee, and that he should place it in good repair by putting in posts and wire and should thereafter maintain said fence. The fence and the contract to keep it up, and the allegation that appellant permitted it to get down, and that he left open' gates therein, together with the allegation of his negligence and willfulness, are so intermingled and connected with the injury inflicted that we do not think there was such a misjoinder of causes of action that an exception should be sustained on account thereof. Townes on Pleading, 218, and authorities in note 1.

We are unable to agree with appellant that appellee set up a new and different cause of action in the district court from that set up by him in the justice court. The pleadings in the justice court are oral, and only a brief memorandum need be noted. on the docket. In the district court the appellant preserved the oral pleadings therein by having the stenographer take and copy the same' in that court, but it is not shown that the oral pleadings were different in the justice court .from the pleadings in the district court. The bill shows substantially the same cause of action in the district court as that noted on the docket of the justice court, amplified but not materially changed. The only pleading which can be said to be different in the district court from that presented in the justice court is that part which alleges that his crop was surrounded with a fence sufficient to turn cattle of ordinary disposition. If this changed the cause of action, it was harmless in that no such issue was presented by the trial court or the evidence for the consideration of the jury. We see no useful' purpose to be subserved in discussing the various exceptions of the appellant to the pleadings. If the facts stated on the docket were proven, appellee was entitled to. recover.

By exceptions to the statement of appellee to the evidence and to the charge of the court, appellant insists that the oral contract to repair and keep in repair the fence should show the time for performance to avoid the statute of frauds. The contract as pleaded and proved does not provide that it is not to be performed within a year. It might have been performed upon some contingency within a year, and therefore will not be defeated by the statute of frauds. Thomas v. Hammond, 47 Tex. 42; Taylor v. Desere, 81 Tex. 246, 16 S. W. 1008; Railway Co. v. Wood, 88 Tex. 191, 30 S. W. 859, 28 L. R. A. 526; Shropshire v. Adams, 40 Tex. Civ. App. 339, 89 S. W. 448.

We think the trial court properly sustained appellee’s exceptions to appellant’s answer setting up in reconvention a debt for $30 upon the grounds stated in the exception.

We think the evidence sufficient in this case to show that the tracts of land occupied by appellant and appellee, respectively, were separated by a partition fence. Appellee planted and grew on his land a crop which was destroyed by cattle and other stock, and that about one-half of the crop was destroyed by the appellant’s cattle, which went onto the crop through the west half of the fence, sometimes through a gate- which appellant opened and left open and other portions of the fence which he failed to repair and suffered to remain out of repair so that it would not turn cattle, and that by reason of such fact appellee was damaged by appellant’s cattle, in the amount found by the jury. The evidence is also sufficient to warrant the finding that some time previous to the injury complained of appellee owned the entire division fence. For the purpose of settling a claim for damages for destruction of crops, at that time, three of their neighbors went onto the place, and while there, in the presence of appellant and Art Stallings, who was then acting for appellee, Fred Stallings, and as his agent, divided the partition fence between the parties, giving to appellee the east portion of the fence and to appellant the west portion of the fence These men advised the parties of their conclusion as to the division that should be made in the fence and advised each to repair and keep in repair his part of the fence so that cattle could not get through, and the appellant and appellee there agreed to the division and to observe the directions and suggestions of the committee to repair and keep in repair the fence. It is urged this was not an agreement. We think it is. Ap-pellee gave up the west part of the fence; which belonged to him, and agreed to keep up the east part. Appellant accepted the west part of the fence as his and agreed to repair and keep it up. The witnesses speak of this transaction as an arbitration. It was not such, but it appears rather as a friendly act by outside parties to enable these adjoining owners to agree upon a division fence and to maintain it. By -this method, the minds of these parties were brought to a meeting, and, when each assented to the same proposition at the same time, we can see no reason why it should not be considered as an agreement. The proposition was not made as an award, but was made as a proposition to be either accepted or rejected. Both parties accepted the proposition as .made, and it occurs to us it should be as binding as if the proposition had been made by one of the parties and accepted by the other., Keeble v. Black, 4 Tex. 69; Sweeney v. Snow, 1 White & W. Civ. Cas. Ct. App. § 728. The evidence indicates that this fence was on the division line, and it is clear that it divided the two tracts. Both owners were interested in the fence and were required to maintain it, and, when by agreement one took one portion and the other the other portion, we think he should be held to his undertaking and if one of the joint owners broke it down, or opened and left open gates so that cattle could enter and damage the other, we see no reason why the one so offending should not respond in damages. If either broke loose from the other without the statutory notice, he would be liable for consequent damages to the other. St. Louis Cattle Co. v. Gholson, 30 S. W. 269. Where one negligently or willfully permits the joint fence to be broken down or who leaves open gates into the inelosure of the other and thereby destroys the crop of the other by permitting his cattle to trespass thereon, we think he should be held liable for the damages occasioned thereby. 19 Cyc. 481, 483; Claunch v. Osborn, 23 S. W. 937; Davis v. Davis, 70 Tex. 123, 7 S. W. 826; Tandy v. Fowler, 150 S. W. 481.

The animals of appellant were not loose and straying, but went from appellant’s land into appellee’s inclosure, through a division fence, of which, under the law, as well as by agreement, appellant was part owner, and which, under the facts found by the jury, he negligently or willfully permitted to remain down and open. If appellant permitted the fence or caused it so to be or remain out of repair, and this was through his fault, then he should respond in damages.

The appellant presents a great number of assignments to the admission of the evidence, to the charge of'the court, and a refusal to give certain special instructions. To review each and all of these assignments would require more time and space than is ' deemed by us necessary to dispose of the case properly. We think the charge of the court sufficiently instructed the jury that ap-pellee could recover damages only inflicted by appellant’s cattle, and that his recovery of” damages was confined to the injury so inflicted, and that the charge is not subject to the criticism offered by appellant in that particular, and that it was unnecessary to give the requested special instruction of appellant on that point. We regard the charge as given as a reasonably fair and full presentation of the law applicable to the case proven. It would subserve no good purpose or the ends of justice to reverse and remand this case should there be some technical error not reviewed by us. Appellant introduced ■ no evidence contradicting the testimony of appellee, but the ease was submitted alone on appellee’s testimony, and a reversal of the case and another trial would not likely result in a different verdict from that given by the jury. The appellee has had the verdict of two juries in his favor, one in the justice court and one in the district court. We think appellant’s rights have been sufficiently guarded in the trial in the district court.

The case will be affirmed.


author: HARPER, J.

text:
    GANT v. STATE.
    (Court of Criminal Appeals of Texas.
    March 18, 1914.)
    1. Criminal Law (§ 1064) — Appeal—Presentation and Reservation in Lower Court op Grounds op Review-Necessity op Mouton por New Trial.
    Under Supreme Court rules (142 S. W. vii et seq.), providing that in a motion for a new trial all grounds relied on shall be stated, or the court on appeal will not consider such grounds, the court on appeal will not consider bills of exceptions complaining of matters not presented to the trial court in the motion for a new trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2676-2684; Dec. Dig. § 1064.]
    2. HoMicrDE (§ 203) — Evidence — Dying Declarations.
    In a prosecution for murder, statements made by deceased when there was no hope of recovery and with the knowledge of impending death were admissible as dying declarations.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 430-437; Dec. Dig. § 203.]
    3. Criminal Law (§ 366*) — Evidence — Res Gestas.
    In a prosecution for murder, statements made by deceased to his wife, ■ who was present when the fatal shot was fired, immediately thereafter were admissible as part of the res gestee.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 806, 811, S14, 819, 820; Dec. Dig. § 366.]
    4. Criminad Law (§ 1091) — Appeal and ER-bob — Specification of Errors.
    In a prosecution for murder, a hill of exceptions that the court erred in admitting testimony tending to show that there was “bad feeling between the Gants [defendant’s people] and Howards [deceased’s people]” was too indefinite for reyiew.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2815, 2816, 2818, 2819, 2823, 2824, 2828-2833, 2843, 2931-2933, 2943; Dee. Dig. § 1091.]
    5. Homicide (§ 166) — Evidence—Motive— Llb Feeding.
    In a prosecution for murder, the court properly admitted eyidence of bad feeling between defendant and deceased on the question of motive.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 320-331; Dec. Dig. § 166.]
    6. Criminad Law (§ 1091) — Appead and Error — Specification of Eeeors.
    Where bills of exceptions do not show, the answers given to questions, and the questions themselves present no error, the hills will be overruled.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2815, 2816, 2818, 2819, 2823, 2824, 2828-2833, 2843, 2931-2933, 2943; Dec. Dig. § 1091.]
    7. Ceiminad Law (§ 922) — Motion fob New Triad — Exceptions at Tbiad.
    No exceptions having been filed to the charge of the court during the trial, complaints in the motion for new trial came too late.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2210-2218; Dec. Dig. § 922.]
    8. Crimunae Law (§ 829) — Requests fob Instructions — Instructions Adready Given.
    The court properly refused defendant’s request which was sufficiently embraced within the charge of the court.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. § 829.]
    9. Criminad Law (§§ 955, 956) — Appead and Ebeob — Presentation and Reservation in Lower Court of Grounds of Review.
    Where, .in a homicide case, a ground of a motion for a new trial, complaining that the jury was allowed to separate during its deliberation, was not supported by affidavit, and there was no bill of exceptions reserved, the appellate court could not consider the objection.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2368-2391; Dec. Dig. §§ 955, 956.]
    Appeal from District Court, Marion County; H. F. O’Neal, Judge.
    Joel Gant was convicted of murder, and he appeals.
    Affirmed.
    R. R. Taylor, of Jefferson, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

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

   HARPER, J.

Appellant was prosecuted and convicted of murder, and his punishment assessed at 17 years confinement in the penitentiary.

The record before us contains several bills of exception relating to the admissibility of certain testimony. These bills were not filed until after court adjourned, and in the motion for a new trial no complaint is made in regard to any of these matters. Our Constitution has provided that the Supreme Court may make rules for the government of proceedings in all the courts in this state, and the Supreme Court has provided in its rules that, in a motion for a new trial filed in the trial court, all grounds relied on shall be stated, or the court on appeal will not consider such grounds. Rules, 142 S. W. vii et seq. In the motion for a new trial the matters complained of in these bills of exception were not presented to the trial court as a reason why he should grant a new trial, and they are presented to us in bills of exception filed after term time. Of course, the bills can be filed after term time if the matter is presented to the trial court in the motion for new trial, but hereafter, to authorize this court to review these matters, the record must disclose that they were presented to the trial judge in the motion for a new trial, and that he overruled them. Motions for a new trial are required to be filed that the trial judge may.correct his own errors, if error there be; it is'not fair to him to present a matter to us and ask that we reverse a ruling which he was given no opportunity to rule on. We call attention to this matter, and will expect and require attorneys to present all the grounds upon which they rely in the motion for new trial filed in the court below.

As frequently said by this court, “assignments of error,” other than the motion for new trial, have no place in the record, and will be stricken therefrom. However, we have read these bills, and they present no error in the ruling of the trial court. The first relates to the testimony of Dr. Lake, who testified as to statements made to him by deceased. It is manifest that deceased had no hope of recovery and knew that death was certain, and the statement made was clearly admissible under the rules governing dying declarations. In the second bill it is claimed the court erred in admitting the testimony of Matilda Howard, who testified she was the wife of deceased, was near him' when the fatal shot was fired, and at once went to him. This statement was admissible as res gestas of the transaction. In the third bill it is claimed that the court erred in admitting testimony going to show that there was “bad feeling between the Gants and Howards,” Phil Howard being the deceased. The bill is too indefinite to present any question for review. It would be clearly admissible to show that bad feeling existed between appellant, Joel Gant, and deceased, Phil Howard, on the question of motive, and the bill presents no error. In the next bill it is not shown what answer, if any, W. B. Stallcup gave to the question propounded; and in the next it is shown that the court sustained the objection to the question propounded to the witness Izora Lang, and the questions in and of themselves present no error. The next bill complains that the juryman Hoe Lock was disqualified because he could not read nor write. This ground of the motion is supported by no affidavit; the bill contains no evidence adduced on the hearing, and the court, in approving the bill, states: “The testimony of Doc Lock shows that he could read and write.”

This case was tried the 23d day of last November, and no objection or exceptions were filed to the charge of the court during the trial, and complaints in the motion for a new trial would come too late. However, we have carefully reviewed the grounds stated in the motion for new trial, and are of the opinion none of them present error.

The only special charge requested by appellant was sufficiently embraced in the charge of the court, in the absence of any objection to the charge as given at the time same was read to the jury.

There is a complaint in the motion for new trial that the jury was permitted to separate during its deliberation. This ground is supported by no affidavit to the motion for new trial; no bill of exceptions is reserved, presenting the testimony heard, and the testimony heard, if any, was not filed during term time. So we cannot review this ground of the motion.

The original' indictment is sent up with the record, and is not subject to the criticism contained' in the motion to quash.

The judgment is affirmed.