author: HODGE'S, J.

text:
    PARIS & G. N. RY. CO. v. ATKINS.

    (No. 1581.)
    (Court of Civil Appeals of Texas. Texarkana.
    March 16, 1916.
    Rehearing Denied April 13, 1916.)
    1. Carriers <§=>280(5) — Passengers—Degree of Care.
    The degree of care required of common carriers of passengers is the same without reference to the character of the conveyance used; the test of liability in each instance is negligence, or the failure to exercise the degree of care exacted by law.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 1098; Dec. Dig. <§=>280(5).]
    2. Carriers <§=>321(8) — Injury to Passenger: —Instruction.
    In an action for personal injury while riding as a passenger in the caboose of defendant’s freight train, an instruction that a passenger on an ordinary freight train assumes the risk of the dangers arising from the ordinary and careful operation of the train, but not those arising from the negligent operation of the train, was not affirmatively wrong.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 1326; Dec. Dig. <§=>321(8).]
    3. Trial <§=>256(1) — Request for Instructions.
    Where an instruction is lacking in fullness, the complaining party should request appropriate additional instructions.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 628, 633; Dec. Dig. <§=>256(1).]
    4. Carriers <§=>321(8) — Action for Injury-Instruction — Negligence.
    In an action for injury to a passenger riding in the caboose of a freight train, an instruction that if, after the train had arrived at a stopping place, the engine had been disconnected, and after some switching had been backed against the train and caboose so violently as to throw plaintiff from his seat and canse his alleged injury, and the negligence of defendant’s employés was the proximate cause of the injury, plaintiff might recover, was proper, though not calling the jury’s attention to the greater perils and discomfort, normally incident to even a careful handling of a freight train.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1247, 1326; Dec. Dig. ®=>321(8).]
    5. Oabbiebs ⅞=280(5) — Passengees — Fbeight Teain — Degkee oe Cabe.
    The test of due care toward a passenger riding in the caboose of a freight train is what prudent and cautious men would do under the same or similar circumstances, and not what railway employés usually or ordinarily do.
    [Ed. Note. — For other eases, see Carriers, Cent. Dig. § 1008; Dec. Dig. <S=j280(5).]
    6. Tkial 45=3252(10) — Instbttction—Evidence
    TO SUPPOBT — CONTEIBTJTOBY NEGLIGENCE. In a passenger’s action for personal injury, where the issue of contributory negligence was not raised by the evidence, there was no error in refusing a special charge thereon.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 602; Dec. Dig. ⅞=»252(10).] ,
    7. Damages <®=>132(2) — Excessive Damages— Peksonal Injuey.
    A verdict of $2,000 for injury to a passenger, breaking several ribs from which he was suffering at the trial, and from which he might continue to suffer, and impairing his efficiency for any character of service, was not excessive.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. § 373; Dec. Dig. ®=>132(2).]
    Appeal from District Court, Lamar County; A. P. Dehoney, Judge.
    Action by James W. Atkins against the Paris & Great Northern Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Wright & Patrick, of Paris, for appellant. Park, Moore & Hardison, of Paris, for appel-lee.

       Application lor writ of error pending in Supreme Court.

   HODGE'S, J.

This appeal is from a judgment for $2,000 in favor of the appellee for damages resulting from personal injuries. The evidence shows that in January, 1914, the appellee was a passenger riding in the caboose on one of the appellant’s freight trains going to Paris, Tex., from some point in Oklahoma. When th'e train reached Arthur City, Tex., the engine and one or more of the cars were detached for the purpose of doing some local switching. While the caboose was standing on the main line, the engine and other cars were backed against it with such violence that th'e appellee was thrown against a desk and injured in the manner complained of.

The court gave the following as a part of his general charge:

“(2) It is the duty of a railroad company as a carrier of passengers to exercise a very high degree of care, or that degree of care which a very careful, cautious, ,and prudent person would exercise under the same or similar circumstances, in the handling and operating of its trains to avoid injury to its passengers.
“(4) A passenger on a freight train assumes the risk of such dangers as may arise from the ordinary and careful handling and operation of the train, but does not assume the risk and dangers arising from a negligent handling and operation of the train.
“(6) Now, if you believe from the evidence that on or about the 22d day of January, 1014, after defendant’s train had arrived at Arthur City, and the engine had been disconnected from said train, leaving the train, including the caboose in which plaintiff was riding, standing, and after doing some switching the employés in charge of said engine and the cars they were engaged in switching and moving about the yards, ran said engine back into and against the tj ain of which the caboose in which plaintiff was riding was a part, with such force and violence as to cause the plaintiff to be thrown from his seat and strike against the edge or corner of the desk inside the caboose, and that the plaintiff was thereby injured as alleged by him in his petition, and caused to suffer the physical pain and mental anguish and the other injurious consequences alleged in his petition, or any of them, and that the action of defendant’s employés in so backing into said train and causing the said collision, if they did, was negligence, as that term is defined in the third paragraph of this charge, and that such negligence, if any, was the proximate cause of the accident and injuries to the plaintiff, then you will find for the plaintiff unless you find for the defendant under other instructions hereinafter given you.
“(8) If you believe from the evidence that, at the time the plaintiff alleges he was injured, the defendant’s employés were handling the engine and the cars attached thereto in a careful and in the usual and ordinary manner, and that in coupling onto said train there was only the usual and customary jar necessary to the performance of the work in a careful and prudent manner, you will find for the defendant.”

To the first paragraph quoted above, numbered 2 in the court’s charge, it is objected that it did not advise the jury that the degree of care to be exercised in the handling of mixed or freight trains must be such' a degree of care as would be commonly exercised in the handling and management of such a conveyance, and does not make the court’s meaning clear to the jury, or distinguish between the degree of care for freight trains and other trains.

To the" fourth paragraph, second in the above quotation, it is objected that the charge did not advise the jury that a passenger on a mixed train assumes the increased danger from the difference in the character of conveyance, and from the ordinary coupling, jerking, or jolting incident to the handling of the same.

To the sixth paragraph the objections were made (1) that there was no evidence that the plaintiff was thrown from the seat; (2) that the evidence shows that the coupling made upon that occasion was one requiring considerable force and violence, and was necessary, and that the defendant would not be responsible for the injury resulting unless it was caused by an unusually violent contact of the cars; and (3) that the charge does not require the plaintiff to exercise care whatsoever to protect himself, and does not advise the jury that if he were guilty of negligence or assumed the risk of the injury he could not recover.

To the eighth paragraph the objection was made that it did. not advise the jury that the usual and customary manner and jar referred to meant such as occurred in handling a train of the character then being used. These objections will be considered in the order stated above.

The degree of care required of common carriers in the transportation of passengers is the same, without reference to the character of the conveyance used. The test of liability in every instance is negligence, or the failure to exercise that degree of care exacted by law. That the perils and discomfort normally incident to even a prudent and. careful handling of a freight train are greater than those attending the use of trains especially equipped for carrying passengers is a matter of common knowledge and within the comprehension of the average juror. It was not, therefore, necessary that the attention of the jury should be called to that fact in order to make the charge complete. But in the fourth paragraph the court did point out this distinction as to the risks assumed by a passenger. This paragraph was not affirmatively wrong. If it was lacking in fullness, the appellant should have requested appropriate additional instructions. As to the sixth paragraph it is but fair to say that the evidence does show that the appellee was thrown a distance of several feet against a desk when the collision occurred. While the coupling may have been necessary, the evidence does not justify the inference that an impact of such violence was required. Three witnesses testified that this violence was unusual.

In support of its contention that the charge should have limited liability to unusual violence, appellant refers to the case of M., K. & T. Ry. Co. of Tex. v. Cobb, 128 S. W. 910. In that case the plaintiff was injured under circumstances somewhat similar to those attending the injury in this instance, and the court gave a charge in many respects strikingly similar to the one given in this case. This charge the court of civil appeals for the fifth district held to be error. The charge in that case told the jury to find for the plaintiff, if they believed that the ear was backed suddenly and unexpectedly and with great force and violence, and that the plaintiff was thereby thrown forward and injured; and if they further found that the agents and servants in backing the car, if they did, were guilty of “negligence” as that term had been previously defined, unless they found for the defendant under other instructions given. In reversing the judgment on account of the giving of this charge the court said:

“The jury were authorized to find for thfe plaintiff if the car was backed suddenly and unexpectedly and with great force and violence against another car standing on the track, and plaintiff was thereby injured. We do not understand this to be the law. The car which was being switched, and in which the plaintiff was riding when injured may have been backed suddenly and unexpectedly and caused to strike a car standing on the track with great force and violence, and yet, if it did not strike the standing car with unusual force or was not unnecessarily switched against the standing car, no recovery could be had. The plaintiff’s car may have been switched suddenly and unexpectedly and with great force and violence against another car, still the railway company would not be liable unless the force and violence with which it struck the standing car was unusual or unnecessary. The giving of this charge constitutes reversible error.”

There are some features of that case which distinguish it from this, but we shall not undertake to discuss them. The similarity is such that what was there said might well be regarded as a precedent for reversing this case should we feel inclined to adopt the reasons there applied.

If the degree of care required of carriers in the transportation of passengers is the same, without reference to the character of the train used, and the test of liability in every instance is negligence, it is difficult to discover any error in either of the charges now being considered. We do not understand that the test of prudence is what railway em-ployés usually or ordinarily do, but rather what prudent and cautious men would do under the same or similar circumstances. Railway operatives cannot fix' the legal standard of care exacted for the protection of passengers by adopting as their usual or ordinary method of performing their duties one which unnecessarily endangers the safety of passengers. What may be a prudent method of handling a freight train on one occasion when carrying freight only, may be reckless conduct at another time when passengers are aboard.

We are not disposed to agree with the holding of the court in the case referred to. It seems to us that the provision in the charge condemned which required the jury, before rendering a verdict for the plaintiff, to find that the violent collision resulted from negligence, was overlooked. The charge here under consideration is, we think, a concise and admirable presentation of the material issues. There would have been no impropriety in telling the jury that they should take into consideration the character of the freight train and the difference between its equipment and that of a passenger train for safe handling; but the absence of such an instruction did not present a vital defect. Jurors, as men of average intelligence, are presumed to know that prudence and caution are mental processes not always to be determined by the mechanical consequences of an act: It requires no legal instruction for men of average intelligence to understand that freight trains are not equipped especially for the comfortable carriage of passengers, and that a high degree of care in their operation necessarily results in more violence and discomfort than usually attends the same prudent handling of passenger trains.

Appellant presented several special charges which were properly refused by th'e court. Each of these made ordinary care on the part of the employés in charge of the train the standard of prudence required.

The issue of contributory negligence was not raised by the evidence, and there was no error in refusing the special charge on that subject.

It was shown that several of the appel-lee’s ribs were broken. According to his testimony he had not recovered his normal condition at the time of trial. He was then still suffering from his injuries. There was also evidence from which the jury might have concluded that he would not only continue to suffer in the future, but that his efficiency for any character of service would be impaired by the state of his health.

The judgment, we think, was amply supported by the evidence, and is not excessive. It is accordingly affirmed.
      <&^>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      @z=^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: BUCK, J.

license: Public Domain

text:
    PICTORIAL REVIEW CO. v. PATE BROS.
    (No. 8326.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Feb. 5, 1916.)
    1. Judgment @=250 — Conformity to Pleadings.
    Where plaintiff sued on an express contract, no recovery on the quantum meruit can be had.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 436; Dec. Dig. @=250.]
    2. Monopolies @=17(2), 21 — What Constitute — Oonteacts in Restraint of Trade— “Trust.”
    Defendants entered into a contract to purchase patterns and fashion books from plaintiff, agreeing not to sell them at less than cata-logue prices, and not to deal in any other such publications. Vernon’s Sayles’ Ann. Civ. St. 1914, art. 7796, subds. 1, 2, 4, and Ej, define a “trust” as a combination of capital, skill, or acts by two or more persons, firms, or corporations to create, or which may tend to create, restrictions in trade or commerce, to fix, maintain, increase, or reduce the price of merchandise, to fix or maintain a standard price, or to make, enter into, maintain, execute, or carry out any contract binding persons to sell or to refrain from selling any goods. B.'eld, that the contract fell within such article, and so was unenforceable as creating a monopoly in restraint of trade.
    [Ed. Note. — For other cases, see Monopolies, Cent. Dig. §§ 13, 15; Dec. Dig. @=17(2), 21.
    For other definitions, see Words and Phrases, First and Second Series, Trust.]
    .3. Dismissal and Nonsuit @=75 — Form of Judgment.
    Where the contract on which action was based was illegal, judgment should be for defendants on the merits rather than one of dismissal.
    [Ed. Note. — For other cases, see Dismissal and Nonsuit, Cent. Dig. § 169; Dee. Dig. @^75.]
    4. Appeal and Error @=878(1) — Review-Necessity of Appeal.
    Errors in the judgment prejudicial to defendants who did not appeal will not be reviewed.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3573, 3574; Dec. Dig. @= 878(1).]
    Appeal from Erath County Court; A. P. Young, Judge.
    Action by the Pictorial Review Company against J. J. Pate and B. B. Pate, doing business as Pate Brothers, begun in justice’s court and appealed by plaintiff to county court. From a judgment there dismissing the action, plaintiff appeals.
    Affirmed.
    W. W. Moores, of Stephenville, for appellant. J. T. Daniel, of Stephenville, for ap-pellees.
   BUCK, J.

Appellant, plaintiff below, filed in the justice court of Erath county a verified account against defendants, amounting to $106.15, and covering items for patterns, postage, etc. In the justice court the ’cause was dismissed upon the ground that the contract relied on was prohibited by article 5313, Revised Statutes 1895, and especially subdivisions Nos. 3 and 5 of said article now incorporated in article 7796, Vernon’s Sayles’ Texas Civil Statutes, said article being a part of what is known as the “AntiTrust Law.” Upon appeal to the county court, judgment was likewise entered, sustaining defendants’ demurrers to plaintiff’s petition and dismissing the action at the cost of plaintiff. The action of the court upon defendants’ demurrers was not taken until the evidence had been heard; the judgment reciting as follows:

“Thereupon, came on to be heard and considered the special exceptions of the defendants, Pate Bros., a firm composed of J. J. Pate and B. B. Pate, to the petition of the plaintiff, the Pictorial Review Company, a corporation duly incorporated under the laws of the state of New York, and, said demurrers being presented to the court, and duly considered, the court announced that it would hear the evidence in the suit and then pass on the demurrers. Thereupon plaintiff introduced proof of its claim, and the de> fendants declined to introduce any proof, and demurred to the pleading, as above stated, and defendants did not introduce evidence on the merits of this cause. The court being of the opinion that the contract introduced in evidence, and under which the goods, wares, and merchandise were sold to defendants, is void and against public policy, against the anti-trust laws of the state of Texas, and constitutes a monopoly and conspiracy in restraint of trade, it is therefore the judgment and order of this court that said demurrers bo sustained and suit be, and the same is hereby, dismissed at the cost of said plaintiff and the surety on its cost bond, to wit, the United States Fidelity & Guaranty Company, a corporation duly incorporated. ⅜ * ⅜ Plaintiff in open court excepted to the ruling of the court.”

Plaintiff excepted, to the action of the court in overruling its motion for new trial and gave notice of appeal to this court.

The contract introduced by plaintiff, and upon which it relies to sustain its cause of action, is as follows:

“No. 30. City or town, Stephenville; State, Texas; Date, Mar. 16, 1912.
“The Pictorial Review Company, 222, 224, 226 W. 39th St., New York: Please send us’a stock of Pictorial Review patterns, each including a patented Cutting and Construction Guide at fifty per cent, of the retail prices amount to one hundred /ioo dollars ($100.00) net. Payable as follows: $15.00 on receipt of patterns ; and $15.00 in thirty days and $20,00 in 60 days from date of receipt of pattern and the balance ($50.00) is to remain as a standing credit during the term of this order agreement upon which interest is to be paid by us at the rate of five per cent, per annum semiannually — January and July 1st of each year.
“Also send us each month an assortment _ of new patterns averaging about $5.00, commencing with next issue. Also 3,600 Monthly Fashion Books per annum and other publications in quantities, and at prices specified on the reverse side hereof during' the term of this agreement commencing with current issue.
“We will reorder at the prices above named, once each week, or oftener, all patterns sold, thus keeping patterns on hand as above specified. The patterns are not to be sold for other than catalogue retail prices, and the stock of patterns is to be kept and offered for sale on the first (main) floor. We will send you an inventory of stock of patterns on hand at your request, not exceeding twice each year.
“All goods ordered for delivery after the first stock are to be paid for before the 15th day of the month succeeding date of shipment. All prices quoted are net.
“We will not sell any other patterns than the Pictorial Review patterns received from you during the term of this order agreement.
“We will not transfer the stock of Pictorial Review patterns from No. - street without your written consent and will pay all transportation charges to and from your New York office.
“Discarded Patterns. (Copy.)
“(We are to be allowed to return to your New York office for credit on exchange account, at full price charged, semiannually in February and August of each year, discarded patterns procured under this order agreement and all subsequent reorders and special orders for patterns are to apply against this exchange credit until same is exhausted. This exchange credit is not to be applied in payment for patterns purchased prior to the time the discarded patterns are returned, nor for other goods than patterns.)
“This agreement is to remain in force from date, and for one year after first shipment of patterns and from term to term of the same period thereafter until either party gives the other written notice within thirty days after the expiration of any such term of their desire to terminate this agreement. Then at the end of three months -thereafter the business having continued in full operation during that time, we may return to you at your office in New York patterns in good condition which you will accept at full net cost in payment for the balance of the stock mentioned.
“All terms are in printed or written form.
“Signed in duplicate after being read.
“Merchant’s name: Pate Bros.
“Date, Mar. 16, 1912.
“The above order agreement is accepted subject to the approval of the home office.
“The Pictorial Review Company.
[Incorporated under the Laws of the State of New York.]
“Date Mar. 22, 1912.
“Approved and accepted, New York, N. Y., Mar. 22, 1912.
“The Pictorial Review Company,
“By M. J. Israel.
“D. S. 267 — 1000. 1 — 23—12.
“M. D. D.
“2 — 28-—12.
“Monthly Fashion Books: Each month.
“January 200; July 200; 3 copies of Pictorial Review Magazine at 11c each; February 200; August 300 ; 5 copies of Pictorial Review Quarterly Fashion Book at 13½0 each; March 400; September 400; April 400; October 400; 1 copy of Pictorial Review Counter Catalogue at 15c each; May 300; November 300; June 200; December 300; 1 copy of Pictorial Review Embroidery Catalogue at 7%c each.
“1 section of pattern tills 70 hole at $5.00 each.
“— section of pattern tills 35 hole at $3.00 each.
“1 counter catalogue cover at 50e each.
“1 metal Fashion Sheet holder at 75c each.
“1 out door metal sign (loaned).
“1 glass sign (loaned).
“1 reorder pads (loaned).
“1 subscription blanks for P. R. Magazine (free).
“Prices of Monthly Fashion Books: 500 per month, $4.00; 1000 per month, $7.50. Advertisement printed when 6,000 or more Monthly Fashion Books per year are ordered.
“Change of advertisement twice each year (including the first advertisement) without charge. If other changes are desired, $2.50 is to be charged for composition and plate on each change.”

Plaintiff, in its several assignments, alleges error in the action of the court in dismissing the suit- because, as claimed:

“(1) Said contract does not evidence a combination of capital, skill, or acts of plaintiff with defendants, the same not showing a union or association of capital, skill, or acts of plaintiff with defendants. (2) If said restrictions were in restraint of trade, the restrictions were only such as would afford a fair protection to plaintiff, and were only in partial restraint of trade, and not such restraint of trade as is violative of the anti-trust laws of the state of Texas. (3) The said contract was made and the goods sold in the state of New York, and the restrictions in said contract were to sell Pictorial Review patterns at catalogue prices, and to buy no other than Pictorial Review patterns during the continuance of this agreement, and to place said patterns upon the ground floor of defendants’ place of business in selling said patterns; said contract was not violative of the anti-trust laws because said restrictions on account of which the court’held the contract violative of the antitrust laws of Texas were void and not enforceable because they were obligatory alone upon •defendants, and were void for want of mutuality, and therefore not violative of the anti-trust laws of Texas. (4) Because the court erred in holding that part of said contract which set out the sale of goods by plaintiff to defendants and at agreed prices to be paid therefor, was not severable from the restrictions set out in-the second assignment of error, which rendered the entire contract void as violative of the antitrust laws of the state of Texas.”

The proposition under this assignment (the fourth) being:

“The test whether a demand connected with an illegal act can be enforced is whether plaintiff required any aid from the illegal demand to-establish his case.”

The contract between plaintiff and defendants was introduced by plaintiff, the defendants having introduced no evidence, and therefore was evidently relied on by plaintiff to sustain its cause of action. Hence, if the contract itself was violative of the antitrust laws of this state, the suit could not be enforced. Plaintiff did not sue, either in whole or in the alternative, on a claim of quantum meruit, but evidently bottomed his -case on the contract set out in the statement oí facts and referred to in the judgment of both the justice and the county court.

We think the contract is violative of the anti-trust laws of the state of Texas, especially sections 1, 2, 4, and 5, of article 7796, Vernon’s Sayles’ Texas Civil Statutes. This question was fully discussed in the case of Armstrong et al. v. Rawleigh Medical Co., 178 S. W. 582, and we do not feel that any good purpose would he subserved by a lengthy discussion herein, but content ourselves with a quotation from that opinion as follows:

“It was held in that" case (Texas Brewing Co. v. Templeton, 90 Tex. 277, 38 S. W. 27) that no question of interstate commerce was involved, and hence the court did not discuss the effect that such phase would have upon the contract. But in the case of Fuqua v. Brewing Co., 90 Tex. 298, 35 S. W. 29, 750, 35 L. R. A. 241, this latter contingency is discussed. In the last-cited case, the court held that an agreement between the brewing company and a dealer in this state, whereby the company bound itself not to sell any beer of its manufacture to any other party in the city of the dealer’s residence or its vicinity, and that the dealer would not sell any beer not manufactured by the company, was a combination of capital and acts, the tendency and purpose of which was to ‘create and carry out restrictions in trade’ and ‘to prevent competition in sale or purchase of commodities,’ which created a trust as is prohibited by the act of 1889 to which reference is made above, and, further, that the beer being manufactured in another state, such transaction, so far as it provided for the sale and purchase of beer to be transported from Wisconsin to Texas, and there delivered to the dealer, was interstate commerce, and not subject to state regulations without the consent of Congress, nor was the regulation prohibited by the statute; but, so far as the contract so dealt with the subject after it had ceased to be an article of interstate commerce as to create a trust as above shown, it was in violation of the statute, and, a portion of the contract being void, the taint of illegality affected and destroyed the whole.”

Being of the opinion that the contract upon which plaintiff bases its right of recovery is in violation of article 7796, supra, we do not believe that plaintiff presented in the trial court a cause of action upon which it .was entitled to judgment. We think the trial court would have been justified, instead of dismissing the cause of action, in entering judgment for defendants; but inasmuch as appellant has made no complaint upon this point, nor has appellee by cross-assignment presented any objection to the form of judgment rendered, we have concluded to affirm the judgment rendered by the trial court, and it is so ordered.

Affirmed.
      c§=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: CONNER, O. J.

text:
    GULF, C. & S. F. RY. CO. v. RODRIQUEZ.
    (No. 8320.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Feb. 12, 1916.
    Rehearing Denied March 18, 1916.)
    1. Trial <§=>133(1) — Discretion of Court.
    It is within the discretion of the trial court to require the jury to disregard any statements or inferences as to why plaintiff difl not bring suit in another county.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 316; Dec. Dig. <§=>133(1).]
    2. Trial <§=>191(1) — Instructions—Assumption of Facts.
    A charge which assumed the existence of facts on which the evidence was conflicting was properly refused.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 420, 421, 435; Dee. Dig. <§=>191(1).]
    3. Carriers <§=>229(1) — Carriage of Live Stock — Injury by Delay.
    Where the plaintiff’s cattle had been injured by a wreck and consequent delay during transportation by a carrier, he was not required to accept an unfavorable opportunity for sale, but was entitled to a reasonable time to prepare them, and an opportunity to sell them in the open market.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 930, 963; Dec. Dig. <§=>229(1).]
    4. Appeal and Error <§=>930(4) — Beview — Presumptions — Verdict.
    In an action against a carrier for damages to cattle by wreck and consequent delay in transportation, where plaintiff sought to recover for only 300 out of 422 bales of hay purchased to feed the cattle from Saturday until Monday, it will be assumed that the jury in estimating the damages took into account the fact that it was customary for shippers, immediately upon the arrival of cattle for sale, to feed and water them at their own expense, at least once.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3760, 3761; Dec. Dig. <§=> 930(4).]
    5. Trial <§=>260(10) — Instructions.
    An instruction is not objectionable for failing to discuss element of damages fully covered in other portions of the charge.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 659; Dec. Dig. <§=>260(10).]
    6. Carriers <§=>230(12) — Carriage of Live Stock — Instructions.
    In an action against, a carrier for damage to cattle by delay in transportation, an instruction, that the plaintiff might recover for any extra shrinkage and bad appearance was not improper as misleading, in that it mixed two elements of damage, since they are so nearly similar in character as to be substantially a common cause of loss.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 961; Dec. Dig. <§=>230(12).]
    7. Carriers <§=>230(12) — Carriage of Live Stock — Delay in Transportation.
    In an action against a carrier for damages to cattle by delay in transportation, where there was evidence that cattle subjected to delay would lose in weight, and that such delay with confinement in the cars would also cause the cattle to present a bad appearance, which would affect their selling price, an instruction that the plaintiff might recover for any extra shrinkage and bad appearance found to exist was proper.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 961; Dec. Dig. <§=>230(12).]
    8. Trial <§=>296(1) — Instructions.
    An instruction is not erroneous as confusing, if unobjectionable when read in connection with other instructions given.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 705-707; Dee. Dig. <§=>296(1).]

      9. Caeriers <3=»230(12) — Carriage of Live Stock — Instructions—Delay in Transportation.
    In an action against a carrier for damages to cattle by delay in transportation, where there was evidence that a train wreck and consequent delay and confinement for 12 hours caused loss in weight and depreciation in appearance, an instruction that the plaintiff was entitled to recover, although ho was able to sell immediately upon arrival, was proper.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 961; Dec. Dig. <S=>230(12).]
    10. Carriers <©=>228(3) — Carriage oe Live Stock — Evidence as to Former Shipments.
    In an action against a carrier for damages to cattle by delay in transportation, in the absence of evidence that other shipments by the plaintiff were subjected to the same conditions as the shipment in question, evidence of the result to those shipments was inadmissible.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 960; Dec. Dig. <©=>228(3).]
    11. Appeal and Error <®=^10á8(l) — Review-Harmless Error.
    In an action against a carrier for damages to cattle by delay in transportation, failure by the plaintiff to answer questions as to other shipments made by him, on the ground that it had nothing to do with the ease, that he did not have his books, and that he did not care to disclose his business, was not prejudicial error, as it would have no weight to discredit or weaken his testimony.
    LEd. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4140, 4144; Dec. Dig. <⅜= 1048(1).]
    12. Appeal and Error <©=»1050(1) — Review-Harmless Error.
    Where like evidence had been admitted without objection, the error in admitting evidence complained of was harmless.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153, 4157; Dec. Dig. <©=>1050(1).]
    13. Appeal and -Error 3=>1048(6) — Review-Harmless Error.
    The admission of testimony on cross-examination which tended to contradict inferences to be drawn from the testimony of the same witness on direct examination was not prejudicial error.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4145; Dec. Dig. <©=> 1048(6).]
    Appeal from District Court, Denton County; C. F. Spencer, Judge.
    Action by Bertola Rodriquez against the Gulf, Colorado & Santa Fé Railway Company. Judgment for the plaintiff, and defendant appeals.
    Affirmed.
    Terry, Cavin & Mills, of Galveston, and Lee, Lomax & Smith, of Ft. Worth, for appellant. J. A. Templeton, of Ft. Worth, for appellee.
   CONNER, O. J.

Appellee instituted this suit to recover damages for injuries to 700 head of his cattle shipped by water from Tampico, Mex., to Galveston, Tex., and from thence over the line of the appellant railway to Ft. Worth. The proof supports the conclusion that no complaint of the treatment of the shipment can successfully be made until the train arrived at a point some 90 to 100 miles south of Ft. Worth, where a wreck occurred. It was alleged, and appellant seems to make no contest on this point, that the wreck was the result of negligence on the part of appellant’s employés; and the plaintiff charged that, by reason of th’e collision, tlie cattle were knocked down, bruised, delayed some 12 or more hours, causing loss in weight, deterioration in appearance, and loss in market price. The real contest below was over the injuries to the cattle and the amount of damages, if any, to which appellee was entitled, but the jury returned a verdict in ap-pellee’s favor for the sum of $1,193, and judgment was entered accordingly.

During the course of the trial th'e court gave the following special instruction, to which error is first assigned:

“You are instructed that the plaintiff in law had the right to bring this suit in this court, and that you will not consider any statements or inferences about why he did so bring it, and the fact of its being brought here cannot be considered by you for any purpose.”

The circumstances under which the charge was given are substantially as follows: The plaintiff’s suit was instituted in Denton county rather than in Tarrant county, where it might also have been properly instituted; the testimony of the principal witnesses in behalf of the plaintiff as to the character and extent of the injuries to the cattle, the depreciation in their appearance and weight, and to a decline in the market which resulted from the delay charged, was by deposition; and counsel for appellant, in his argument before the jury, referred to these facts, whereupon counsel for appellee objected to any comment on the suit being brought in Denton county. Appellant’s counsel then insisted upon his right to suggest to the jury and leave it to them to determine whether or not plaintiff may have been actuated in bringing his suit in Denton county because in Denton county his witnesses were not known, as they doubtless were in Tarrant county, and because in Den-ton county plaintiff could escape any criticism for using depositions of the witnesses and not having them testify in person; whereupon the court ruled that arguments and suggestions of this kind were proper, and counsel for appellant made such argument. But thereafter, during the closing argument by counsel for appellee, when he undertook to state what he said might be the reason for bringing the suit in Denton county, starting out with reference to how many railroads entered into Tarrant county, and how many railroad employés were in Tarrant county, appellant’s counsel objected to such argument, and, without ruling on such1 objection, the court read to the jury the special instruction complained of, and which we have quoted above.

Appellant objects to th'e charge because it was improper and on the weight of the evidence, and insists that, inasmuch as the suit could have been brought in Tarrant county, and as the most material witnesses for plaintiff were residents of Tarrant county testifying by deposition, that his argument was legitimate and proper for the jury’s consideration. While we are inclined to agree with what was said by a Georgia court of appeals in th'e case of Georgia, F. & A. Ry. Co. v. Sasser, 4 Ga. App. 276, 61 S. E. 505, to the effect that appellant’s counsel did not exceed the bounds of legitimate argument in drawing from the facts apparent upon the trial such inferences as he thought were reasonable, and that under ordinary circumstances the effect of such afcgument should not have been withdrawn from th'e consideration of the jury, as was done by the charge objected to, yet, under the circumstances presented to us, we feel unwilling to reverse the judgment because of the action of the court noted. It is undisputed that the plaintiff’s suit was properly instituted in Denton county; and in the effort to explain that fact, and thus remove the unfavorable inferences that appellant’s counsel sought to establish, we think appellee's counsel was well within his rights in referring to matters constituting a part of the common history of the country, such as the numerous railroads centered in Ft. Worth and the consequent number of railway employes; and, when counsel for appellant objected to such' argument, he thus in all probability provoked the court to give the instruction, with a view doubtless of thereby at once ending a controversy that was but collateral to the main issues of the case, and possibly becoming misleading or confusing.

In this connection, we will further obserye that there was no attempt made to otherwise impeach appellee’s witnesses, and nothing in the record indicates that they were not entitled to the usual credence by the jury. On the whole, we think the circumstance was one of those incidental matters frequently arising upon a trial, which must be left largely to the trial court’s discretion, and, as indicated, we see no reversible error in the discretion exercised in this instance.

Appellant requested the submission of the following special charge, which was refused, and to which action on the part of the court appellant assigns error, viz.:

“It is admitted in this ease that the 22 cars of cattle were unloaded in the pens at Ft. Worth, Tex., at 3:10 p. m. Saturday, July 11, 1914; it is further the undisputed evidence in this case that they could have been sold on the Saturday after they had so arrived, but that no effort was made to sell them.
“Now, if you find from the evidence that, if the said 22 cars had beefi sold on Saturday afternoon, they would have netted the plaintiff as much money as if they had arrived and been sold early in the day of Saturday, then you will find for the defendant as to said 22 cars of cattle ; that is, you will not allow the plaintiff any damages either on account of claimed shrinkage or on account of claimed decline in market or appearance by reason of the said 22 cars being held over until Monday.”

In the same connection, appellant assigns error to the second paragraph of the court’s charge, which is as follows:

“If you find and believe from the evidence that said cattle arrived in Ft. Worth too late to be sold on the market of Saturday, July 11, 1914, and that by reason thereof they had to be held over for Monday’s market, and you further find that the market of Monday had declined from Saturday’s market, then the plaintiff would be entitled to recover the difference, if any, on account of such decline between said Saturday and said Monday. This section, however, is to be taken in connection with special charge No. 8 requested and given.”

Special charge No. 8, referred to in the second paragraph of the court’s charge above quoted, was given at appellant’s instance, and reads:

“If you find from a preponderance of the evidence in the case that the plaintiff’s cattle declined in market value from Saturday to Monday, either on account of their depreciated appearance or on account of decline in market, if you find either, and you further find, under all the. instructions as given you, that plaintiff is entitled to recover on account of such decline, but if you further find from the evidence that the cattle, by reason of the feed and attention they received from Saturday until Monday, increased in weight and weighed more on Monday than they would have weighed on Saturday, then you will offset the amount of increase in value of said stock by reason of such increase in weight, figured on the basis of which the cattle sold on Monday, against such amount, if any, as you find plaintiff lost by reason of depreciation in appearance or decline in market, if any; that is to say, if the amount of increase in value by reason of increase in weight was equal to, or in excess of, the amount of loss on account of depreciated appearance, or decline in market, then you will not find for the plaintiff anything on account of such depreciation in appearance or decline in market; but if the increase in value on account of increase in weight was not equal to the loss by depreciation in appearance and decline in market, in that event you will only find for plaintiff the difference between such increase in value by reason of increase in weight and the loss in value by reason of the depreciated appearance or decline of market.”

The contention made under these assignments is that, as stated in the special charge refused, the undisputed testimony shows that the cattle could have been sold upon the Saturday market, and that it constitutes error to submit as doubtful an issue as to which there is no d'oubt and no dispute; but we think the theory of the evidence upon which the contention is based is erroneous.

It is true that one of the witnesses, who seems not to have been contradicted, testified, in effect, that he was a purchasing agent for Swift & Co., and would upon application have purchased cattle arriving upon the Ft. Worth market at any time previous to 5 o’clock. The evidence showed that the 22 cars of the cattle in question did arrive in Ft. Worth at 3:10 p. m. on Saturday, July 11, 1914. But there was other testimony to the effect that the Saturday’s market closed at about 2 p. m., at which hour the usual purchasing agents and buyers dispersed; and it ought not to be said that appellee is to be deprived 'of the loss in the decline of the market shown by the testimony, between Saturday and Monday, merely because it was possible that a sale might have been made on Saturday.

The evidence fails to show that the purchasing agent so testifying remained upon the grounds as late as 5 o’clock, or that there were buyers of any kind in the purchasing yards, and appellee was not required to accept an unfavorable Opportunity for a sale. It would be unreasonable to require, as some of the testimony indicates, appellee to forthwith place his cattle upon the market without reasonable time to prepare them for sale by feeding and watering them, and nothing in the evidence indicates that he could have reasonably done this in time for a fair sale on Saturday. The court’s charges on the subject gave to appellant all that it could reasonably demand. The assignments in question are, accordingly, overruled.

One of the items for which the plaintiff sought to recover was the sum 'of $195 for 300 bales of hay, which the plaintiff alleged he was forced to purchase and to feed to his cattle because of the delay in holding them from Saturday evening over until the following Monday, when they were sold. The evidence shows that, up'on the arrival of the plaintiff’s cattle in Ft. Wprth, his agents bought 422 bales of hay of the market value of 65 cents per bale, all of which during Saturday, Sunday, and Monday, until sold, was fed to the cattle.

There was other evidence tending to show that it was customary for shippers, immediately upon the arrival of cattle for sale, to feed and water them, and there is no specific evidence which establishes the precise amount of extra hay that appellee’s cattle consumed beyond the amount fed to them on their first feed, and appellant requested a specific charge reciting this fact and instructing the jury, because of it, to disregard the said item of $195. The charge was refused, and error is assigned to the action of the court in refusing it. Appellant’s contention is that, before plaintiff was entitled to recover anything on the item of feed, it was necessary for him to present to the jury evidence reasonably sufficient to enable them to estimate the extent of the damage claimed on this account. The verdict of the jury is a general one, and we have no means Of estimating the amount, if any, the jury may have awarded because of the extra feed necessitated by the delay of the 22 cars of cattle from Saturday to Monday, which, under the court’s charge, they were authorized to find for plaintiff. But if we assume, as appellant’s proposition evidently does, that plaintiff in n'o event was entitled to recover the amount of hay fed upon the first feed of Saturday (and this seems to be the theory of the plaintiff’s allegations, for he sought to recover for 300 bales only), yet we see no reason why as to this item the common knowledge that must be supposed to be possessed by the jury would not enable them to make a proportional estimate of the amount of extra hay fed from Saturday to Monday. Nothing in the evidence tends to indicate that more hay was fed on the first feed Saturday than on the second, or on any feed of Sunday or Monday, and it may be fairly assumed that the jury, in estimating plaintiff’s damages on this account, estimated the hay consumed at each feed as substantially the same, and allowed the plaintiff 'only for the necessary feeding after the first. Appellant’s assignments, therefore, relating to this matter will be overruled.

The second paragraph of the court’s charge, which we have^hereinbefore quoted in discussing another topic, is objected to because it is insisted, in effect, that it fails to authorize the jury to offset the damages arising from a decline in the market, if any, by the increased weight of the cattle, arising from the additional feed and rest from Saturday to Monday; but it is to be noted that the section of the court’s charge objected to specifically instructs the jury that it is to be taken in connection with special charge No. 8, als’o hereinbefore set out, given at appellant’s request. And special charge No. 8, in the language of appellant’s own selection, as we think sufficiently guarded any right of appellant growing out of the fact that the cattle took on additional weight. Moreover, in another section 'of the court’s charge on the same subject (section 7), the jury were further instructed that:

“If you find and believe from the evidence that by reason and because of said cattle being held from Saturday and Sunday to Monday before being sohi, that they regained weight and appearance which they had lost, if any, on account of such delay in transit, then the plaintiff could not recover on account of any shrinkage or bad appearance, if any, on account of such negligent delay. This section will however be considered in connection with special charge No. 8, requested and given you herein.”

Any jury of the necessary qualification would have no difficulty in giving the charges referred to the proper consideration.

Appellant objects to the third paragraph of the court’s charge, which reads:

“If you find from the evidence that on account of such negligent delay, that said cattle shrank in weight and presented a gaunt appearance, and that such shrinkage and bad appearance, if any, affected their selling price on the market, then you will find for the plaintiff in such sum as will represent the difference on account of such extra shrinkage and stale appearance, between amounts which was received by the plaintiff for said cattle and what he would have received on account of such extra shrinkage and bad appearance, if any.”

It is first insisted that the charge “mixes up the two items claimed by plaintiff—one on account of shrinkage and one on account of depreciation of appearance—in a way calculated to mislead the jury to the prejudice of defendant.” And it is urged that “the items are pleaded separately, proved separately, and should be submitted separately and not mixed and commingled.” We think, however, that there is no real merit in this objection. The loss in weight and the loss by reason of the stale appearance of the cattle, if any, are so nearly similar in character and effect as to be substantially a common cause of loss or damages, and we fail to see in what way — and appellant points out no way — the combination of these elements in the charge could mislead a jury of average intelligence.

Paragraph 3 of the court’s charge is further objected to on the ground that it is on the weight of the evidence. This contention is based upon the assumption that “the practically undisputed evidence” is to the effect that the fact that the cattle were thin and gaunt would have a tendency to increase their market value, and it is u.rged that it is error to submit to a jury issues or phases of the case which find no support in the evidence. We cannot agree, however, with appellant’s construction of the evidence on this subject. It is true that one or more witnesses who testified in behalf of appellant testified to the effect that a better price would be given for cattle sold before they were fed and watered than if sold immediately afterwards, the rule with purchasers being to make a deduction because of the extra weight caused by the fill, and no specific denial of this character of evidence was made by any witness; yet we think it is undoubtedly true that the evidence offered in behalf of appellee strongly tended to show that cattle subjected to delay, as the undisputed proof shows plaintiff’s were, would lose in weight, and that such delay, with confinement in the cars, would also cause the cattle to present a bad appearance which affected their selling price.

Nor do we think paragraph 3 of the charge is confusing, as urged in another assignment of error. The paragraph, when read in -connection with other charges given by the court, we think unobjectionable.

In paragraph 6 of the court’s charge the jury were instructed to the effect that if the plaintiff’s cattle could have been sold upon the Saturday of their arrival, and that there was no difference in the market on Saturday a. m. and in that of the afternoon, then the plaintiff would not be entitled to anything on account of the decline in the market from Saturday to Monday, nor in such event would he be entitled to recover anything for feed given to the cattle while they were being so held over. His only elements of damage, if any, in these events “would be on account of the extra shrinkage and bad appearance of said cattle, if any, on account of such delay.” Appellant objects to this paragraph of the charge for the reason, substantially, that it authorized, in the contingencies presented, the imposition of damages because of the extra shrinkage and bad appearance of the cattle, whereas, as is insisted, in such events appellee would be entitled to no recovery whatever. But we think the evidence amply supports appellee’s contention that the wreck south of Ft. Worth, and the consequent delay and confinement of the cattle for 12 hours, caused both loss in weight and a stale or depreciated appearance, and for these elements of damage it seems clear to us appellee would have been entitled to recover even though the cattle had been sold on Saturday’s market immediately after their arrival in the Ft. Worth selling yards.

There are several other objections to the court’s charge, but we think they have been sufficiently answered in what we have heretofore said. On the whole, we think the court in an exceptionally clear manner and with commendable care presented the case to the jury in his charges, and therein carefully guarded every right to which appellant was entitled under the evidence.

In the 13th, 14th, 15th, 16th and 17th assignments of error complaint is made of the appellee’s failure to respond to questions tending to elicit the facts of numerous other shipments made by him from Mexico to Ft. Worth. Appellant’s contention is, in substance, that it was entitled to the information thus sought, in order to show by the history of other shipments, if it could, that the cattle in question neither lost in weight nor in selling appearance; but these assignments have been considered, and we find no reversible error in the respects referred to. It is not even suggested that there is anything in the evidence from which to draw the conclusion that any one or more of ap-pellee’s other shipments of cattle from Mexico were subjected to the same conditions as the shipment in question. In the absence of such showing, it is clear that the result to other shipments would be incompetent, and it would, we think, be according appellant a greater right than it is entitled to, to reverse the judgment below, to the end merely that it might ascertain, by an examination of appellee, whether or not any other shipment had been subjected to similar conditions. The suggestion that the fact of his refusal to answer should have been permitted to go before the jury as affecting the credibility of the witness and the weight to be given to his testimony is answered by the conclusion that his testimony on the trial went to no seriously contested question, and that his refusal to answer, when considered together with the reasons assigned for the refusal, to wit, that the inquiries had nothing to do with the ease, that the witness could not give full answers in the absence of his books, and that he did not care to disclose his business, would in no event have had any weighty tendency to discredit the witness or weaken his testimony as given on the trial.

Nor do we think the court erred, as complained of in the 18th, 19 th, and 20th assignments, in admitting the answers to cross-interrogatories propounded to the witness Roy O. Murphay. We will not lengthen our opinion by setting out the testimony objected to, but it has been examined, and we find that in some respects like evidence had been admitted without objection, in other respects the answers tended to contradict inferences to be drawn from the testimony of'the same witness offered by appellant. So that, on the whole, we fail to find any reversible error in the matter.

We conclude that all assignments of error should be overruled, and the judgment affirmed.
      ©=>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <gss>For otter cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: FLY, C. J.

text:
    SAN ANTONIO BREWING ASS’N v. GERLACH.
    (No. 5635.)

    (Court of Civil Appeals of Texas. San Antonio.
    March 22, 1916.
    Rehearing Denied April 19, 1916.)
    1. Master and Servant <©=235(7) — Appliances por Work — Inspection.
    The driver of a beer wagon, who was told to take out a loaded wagon which he had never driven before, was not required to inspect the wagon, as it would have been impossible for him to have performed the duty of inspection under the circumstances, and as the defect in the axle which broke, causing his injury, could not have been discovered by ordinary means, but would have required a close inspection.
    [Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. § 714; Dec. Dig. <®=235(7)J
    2. Master and Servant <g=219(5) — Assumption op Risk — Simple Tools — Wagon.
    The simple-tool doctrine applies to instruments that are generally used manually by the servant, and the nonliability of the master is placed on the presumption that any defect must be obvious to the servant, and any risk of danger must be held to have been assumed by him, and does not apply where the defect is not obvious, but is a latent or concealed defect so far as the servant is concerned; and a loaded beer wagon, which was ordered to be driven by a servant who had never driven it before, and whoso duties toward it were not such as would necessarily have charged him with the knowledge of a defect in an axle, not discoverable by ordinary means, could not be held to be within the simple-tool doctrine.
    [Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. § 614; Dec. Dig. <©= 219(5).]
    3. Trial <©=252(11) — Action por Injury-Instruction — Assumption op Risk.
    Whore there was no testimony in a servant’s action for injury raising the question of assumed risk, the court properly refused a special charge thereon.
    [Ed. Note. — Eor other cases, see Trial, Cent. Dig. § 603; Dec. Dig. <©=252(11).]
    4. Master and Servant <©=217(13) — Assumption op Risk.
    The question of assumption of risk could only have arisen under a state of facts tending to show that the duties of the driver of a beer wagon were such as would necessarily have charged him with knowledge of a defect in an axle which broke resulting in his injury.
    [Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. § 584; Dec. Dig. <§= 217(13).]
    5. Master and Servant <g=217(3) — Action por Injury — Assumption op Risk.
    In a servant’s action for injury from the breaking of the axle of a beer wagon which he was driving, the defendant’s abstract proposition, that where a servant has equal facilities with the master of ascertaining the danger incident to the work in which he is engaged, he assumes the risk, could not profit defendant, where there were no facts making it a concrete proposition.
    [Ed. Note. — Por other cases, see Master and Servant, Cent. Dig. § 576; Dec. Dig. <©= 217(3).]
    6. Master and Servant <©=209(1) — Injury to Servant — Tools and Appliances — Assumption op Risk.
    Plaintiff, employed as the driver of a beer wagon and ordered to take out a loaded wagon which he had never driven did not assume the risk of injury from the breaking of the axle, as it was not incident to his employment as a driver, and as, if defendant had performed its duty, the worn axle, of which plaintiff had no knowledge, would not have been on the wagon.
    [Ed. Note. — Eor other eases, see Master and Servant, Cent. Dig. § 552; Dec. Dig. <©= 209(1).]
    7. Damages <©=132(6) — Personal Injury-Injury to Deg.
    A verdict of $12,500 awarded to the driver of a beer wagon, 28 years of age, earning from $17 to $20 a week, who suffered a common fracture of his leg above the ankle and was in the hospital for nine months, where several operations were performed, and whose ankle was sore and stiff, and whose leg was shorter than the other, who had been confined to his bed for five months, suffering intense pain, and who would never be able to perform such labor again, in the absence of passion or prejudice, was not excessive.
    [Ed. Note. — Eor other cases, see Damages, Cent. Dig. § 377; Dec. Dig. <©=132(6).]
    Appeal from District Court, Bexar County ; W. P. Ezell, Judge.
    Action, by Otto Gerlach against the San Antonio Brewing Association. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Terrell, Walthall & Terrell and Newton <& Newton, all of San Antonio, for appellant Arnold, Cozby & Peyton, of San Antonio, for appellee.

      Application for writ of error pending in Supreme Court.

   FLY, C. J.

Appellee, an employé of appellant, instituted this suit to recover damages arising from injuries inflicted on him by the breaking of an axle of a beer wagon that he was driving in pursuance of his duties as servant of appellant. It was alleged that the axle was defective, which was known, or would have been known by the exercise of ordinary care, to appellant, and said defect caused it to break and throw ap-pellee from the wagon and break his leg. Appellant denied liability, and pleaded that the defect was latent and could not be discovered by the exercise of ordinary care, and that appellee was guilty of contributory negligence and had assumed the risk. The cause was tried by jury, and resulted in a verdict and judgment in favor of appellee for $12,500.

The evidence showed that appellee was a driver of a beer wagon in tbe employment of appellant; that lie had a wagon which he regularly drove, but on the morning of the accident, when he reached the brewery, he was told to take a wagon loaded with beer and drive it to a certain place in the city of San Antonio; that he had never driven that wagon before, but in compliance with his orders he took the wagon and started to its destination; that, when he was at or near the corner of La Salle and Lafitte streets, the rear axle broke and precipitated him to the ground, breaking his leg and seriously and permanently injuring him. There was a defect in the axle which could have been detected by an inspection, and the defect caused the accident. Appellee was not guilty of contributory negligence.

The first assignment of error complains of the refusal of the court to give a certain special charge requested by it, which informed the jury that it was not the duty of the master to inspect machinery or implements, when they are of such a nature that a man of ordinary prudence would not inspect them as a precaution against injury to the servant; and that an inspection of common tools and implements is not required when placed in the custody of a servant who has the capacity to understand them; and submitted to the jury the determination of whether a wagon was a common implement which appellee had the capacity to understand. The charge was properly rejected.

The duty of inspection did not devolve upon appellee, and it would, if the duty of inspection had devolved upon appellee, have been impossible for him to have performed the duty of inspection. The evidence of appellant showed conclusively that appellee was under no obligation to inspect the wagon. If it had been the duty of appellee to take the wheels oft the wagon and oil the spindles, it perhaps might be considered that he should have discovered any defect therein; but he had never used the wagon, and could not have possibly discovered the defect under the circumstances. He was ordered to take the loaded wagon and deliver the beer thereon.

The simple-tool doctrine applies to instruments that are generally used manually by the servant, and the nonliability of the master is placed upon the presumption that any defect must be obvious to the servant and any risk of danger must be held to have been assumed by him. Railway v. Lempe, 59 Tex. 22; Railway v. French, 86 Tex. 96, 23 S. W. 642; Railway v. Hannig, 91 Tex. 347, 43 S. W. 508; Alamo Oil & Refining Co. v. Richards, 172 S. W. 159. Even in cases of tools, the servant, under certain circumstances, is not charged with the duty of inspection and the discovery of defects in the instrumentality furnished by the master, however simple such instrumentality might be. In the case of Railway v. Schuler, 46 Tex. Civ. App. 356, 102 S. W. 783, this court held the servant had the right to assume when a pinch bar, as simple a tool as could be made, was handed him by his foreman for immediate use, that it was not his duty to inspect the bar. As said in the cited case of Alamo Oil & Refining Co. v. Richards:

“It is the rule that where a tool or imjfiement is so simple that inspection is not necessary, and any man of ordinary intelligence can see the defects, if any in it, the servant will be charged with an assumption of the risk arising from its use. This rule will not apply where the defect is not obvious, but is a latent or concealed defect so far as the servant is concerned. * ⅞ ⅜ In assumed risk there must be knowledge, express or implied, on the part of the servant.”

There was no testimony in this case that raised the question of assumed risk, and the court properly refused the special charge on that ground if there had been no other. The defect in the axle was one that appellee could not have discovered by ordinary means, but would have required a close inspection upon his part. Appellee may have thoroughly understood every part of the wagon, and yet under the facts and circumstances he could not possibly have known of the defect in the axle. Appellant claimed to have inspected the axle without finding the defect, and it would be asking too much of any servant to demand of him that he should by intuition know that an axle to a wagon, on which he was to ride and drive, without a moment’s preparation, was defective.

Under the facts of this case, it would have been positive error to have submitted to a jury the question as to whether a wagon would come under the category of a simple tool.

The question of assumed risk could only have arisen under a state of facts tending to show that the duties of the servant in regard to the wagon were such as would necessarily have charged him with knowledge of the defect in the axle of the wagon. No implement or instrumentality, with as many different parts as a wagon, can be held to be in the same class with a hammer, a hoe handle, a pick, a rope, or a shovel, and no finding of a jury could place it in that class. The charge was properly refused.

The abstract proposition that, “where a servant has equal facilities with the master for ascertaining the danger incident to the work in which he is engaged, he assumes the risk,” may be fully sustained; but it cannot profit appellant in this case, because there are no facts that make it a concrete proposition, pertinent and binding.

The second assignment of error is overruled. Under the facts of this case appellee did not assume the risk of the axle of the wagon breaking. It was not incident to his employment as a driver. If appellant had performed its duty, the axle would not have been on the wagon, as the testimony offered by it showed that an axle on a beer wagon would not last more than 2½ years, and the period of the usefulness of the axle in question had expired. Appellee had no knowledge of that fact, but appellant knew it.

Appellee had a common fracture of his leg above the ankle, and was in the hospital for nine months. Six operations were performed on him, and sores have broken out on his leg ever since it was broken, caused, it was thought, by pieces of dead bone. Several pieces were taken out, but the sores still break out. The ankle is stiff and the leg shorter than the other leg. He was confined to his bed for about five months. His suffering was intense and he still suffers. His injuries are permanent, and he will never be able to perform such labor as he did before he was injured. One physician swore that the leg should be amputated, and that eventually appellee would lose his leg. Appellee was 28 years old when injured, and earning from $17 to $20 a week. There is no evidence of passion or prejudice on the part of the jury, and it cannot be held that the verdict is excessive.

The judgment is affirmed.
      <gE5>For other cases see same topic and KEY-NUMÍIEB, in all Key-Numbered Digests and Indexes


author: RICE, J.

text:
    NOBLE v. NOBLE et al.
    (No. 5622.)
    (Court of Civil Appeals of Texas. Austin.
    March 29, 1916.)
    Divobce <S=o298(1) — Custody oe Children— Awabd to Third Party.
    Though Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4641, only authorizes the court, in cases of separation between man and wife, to give the custody of children to either the father or mother, yet under Const, art. 5, §§ 8, 16, giving the district court general jurisdiction over minors, where the court in a divorce suit determines that neither the father nor mother is a suitable person to have custody and control of a child, it may award its custody to a suitable third person who intervenes and asks for the custody.
    [Ed. Note. — For other eases, see Divorce, Cent. Dig. §§ 781, 785; Dec. Dig. <s=»298(l).]
    Appeal from District Court, Bumet County; James Flack, Special Judge.
    Suit by J. A. Noble against Eua Lacy Noble, in which Kate Lacy intervenes. From a judgment for defendant and intervener, plaintiff appeals.
    Affirmed.
    E. E. Shelley and Allen & Allen, all of Dallas, for appellant. Dayton Moses, of Burnet, and Martin & Martin, of Fredricks-burg, for appellee.
   RICE, J.

This suit was brought by appellant against his wife, Eua Lacy Noble, for divorce, alleging adultery and cruel treatment, and for the custody of their minor child, Ary Lacy Noble, a boy of tender years. Appellee filed a cross-bill, asking for a divorce on the ground of cruelty, alleging various and sundry assaults made upon her by her husband, as well as charges of unchastity, and praying that the custody of the child be awarded, either to herself or to her mother, Sirs. Kate Lacy. Mrs. Kate Lacy, the mother of appellee, intervened, alleging that ^he was a woman of considerable means; that she was amply able to support and maintain her grandchild, Ary Lacy Noble; that if the court would grant the custody and control of the child to her she would gladly accept such trust; that she would support, maintain, and educate the child out of her own means. The ease was tried by the court without a jury, who rendered judgment, granting defendant a divorce and awarding the custody of the child to its grandmother, Mrs. Lacy, from which this appeal is prosecuted.

The action of the court in refusing to strike out Mrs. Lacy’s plea of intervention is assigned as error, and presents the principal contention on this appeal. Appellant insists that by statute in this state the jurisdiction in divorce cases relative to the custody of the minor children of the parties is limited to the parents, and that the court must award such custody to one or the other' of the parents, citing Vernon’s Sayles’ Civ. Stats, vol. 3, art. 4641, and Hopkins v. Hopkins, 39 Wis. 167. The article referred to reads thus:

“The courts aforesaid shall have power in all cases of separation between man and wife to give the custody and education of the children to either the father or mother as to the court shall seem right and proper, having regard to the prudence and ability of the parents and the age and sex of the child or children, to be determined and decided on the petition of either party, and in the meantime to issue any injunction or make any order that the safety and well-being of such children may require.”

Appellee replies to this contention that under the Constitution of this state (article 5, §§ 8 and 16) the district court is given general jurisdiction over minors, and that, notwithstanding the fact that this may be a divorce case, the court had the right, after determining as it did that neither parent was a suitable person to have the custody of the child, to award it to a third party. While article 4641 is, of course, authority for the proposition that the court would have the right in a divorce case to award to eifher parent the custody of the child or children, as the case might be, still this article does not, in terms, prohibit the court from granting the custody to any one else, in the event it should determine that neither parent was a proper person to have the custody of such child or children. In addition to the Constitution, appellee cites the following authorities: Rice v. Rice, 21 Tex. 58; Legate v. Legate, 87 Tex. 252, 28 S. W. 281; Ex parte Reeves, 100 Tex. 617, 103 S. W. 478; Long v. Smith, 162 S. W. 25; Ex parte Sams, 161 S. W. 388; Peese v. Gellerman, 51 Tex. Civ. App. 39, 110 S. W. 196; Ward v. Ward, 34 Tex. Civ. App. 104, 77 S. W. 829; State v. Deaton, 93 Tex. 247, 54 S. W. 901; Parker v. Wiggins, 86 S. W. 788; Sturdevant v. State, 15 Neb. 459, 19 N. W. 618, 48 Am. Rep. 349; Speer, Law of Married Women in Texas, § 359, p. 422; Pomeroy’s Eg. (3d Ed.) §§ 1303-1307, inclusive.

Under section 8, art. 5, of our state Constitution, original jurisdiction and general control is given to the district court over minors, under such regulations as may be prescribed by law. Notwithstanding this was a divorce case, we think, under the section of the Constitution above quoted, that the court had the authority of its own motion, and in the absence of application therefor (if under the evidence it deemed that neither parent was a proper person to have the custody and control of the children), to award such custody to any suitable person disposed to assume this responsibility. But it is not necessary to go so far in the present ease, as Mrs. Lacy, the grandmother, had filed a proper application praying for the custody of the child.

In Bice v. Bice, supra, a proceeding for divorce, Mr. Chief . Justice Hemphill held that the court, where the evidence showed that neither parent was entitled to the custody, had authority to remove the children from the custody or guardianship of both parents and award them to their grandfather, saying that the interest of the children and of the public in their morals and education are superior to the claims of the parents and, the latter must yield when they come in conflict.

The cardinal doctrine seems to be that the interest of the child is paramount to all other considerations, and that the rights of parents must in all cases yield to the welfare of the child. See Ball v. Smith, 156 S. W. 576.

It has been held by the courts, in effect, that the minor is the ward of the chancery court, and, even in the absence of pleading raising the question relative to its interest in property therein involved, the chancellor would have the right to make any order that would properly safeguard its rights. See G., C. & S. F. Ry. Co. v. Younger, 19 Tex. Civ. App. 242, 45 S. W. 1030, and eases there cited ; also G., C. & S. F. Ry. Co. v. Styron, 66 Tex. 421, 1 S. W. 161.

It is true that it was held in Hopkins v. Hopkins, supra, by the Supreme Court of Wisconsin, that in actions for divorce courts of that state had no authority to take the custody and control of the child from both parents and give it to a stranger, declaring that in such matters the courts only had such power as was conferred upon them by statute. The statute there referred to seems in divorce cases to authorize the court only to award the custody to one or the other of the parents. It is possible that the Constitution of that state did not grant, as ours does, general authority and control over minors to the trial court. At any rate, we are not disposed to follow this decision as against the holding of our own courts in the cases above cited.

On the hearing, counsel for appellant admitted that, if this was a habeas corpus proceeding, the court would have had authority to make the order granting the custody of the child to its grandmother, provided it found that the parents had forfeited their rights thereto. This being true, to avoid a multiplicity of suits, did not the court, in the exercise of its equity powers, have the right in the instant case to make ihe order, where all the parties were before it? We think so.

Believing that the court did not err in refusing to strike out the plea of intervention, we overrule the first and twelfth assignments, presenting the question.

Numerous hssignments question several findings of the court upon which it based its refusal to grant appellant a divorce. All of these have been carefully considered, and we hold that there is evidence to support the finding, for which reason all of these assignments are overruled.

We likewise overrule' appellant’s several assignments complaining of the findings of the court upon which it based its judgment awarding appellee a divorce, because there is evidence upon which the court had a right to predicate such findings.

After a careful inspection of the record, we find no reversible error in the proceedings of the trial court, and its judgment is therefore affirmed.

Affirmed.
      <gr=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DUNKLIN, J.

text:
    TEEL et al. v. BROWN et al.
    (No. 8314.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Feb. 5, 1916.
    On Motion for Rehearing, March 4, 1916.)
    1. Appeal and Ebbob <§=>664(4) — Statement op Facts — Oonclusiveness.
    A statement of facts properly certified is conclusive as to what evidence was introduced upon trial, and cannot be modified by any bill of exceptions.
    [Ed. Note — For other cases, see Appeal and Error, Cent. Dig. § 2859; Dec. Dig. ⅞⅜=664(4).]
    2. Stipulations <§=>14(12) — Eppect—Consent Deceee.
    Where defendants’ counsel admitted that after plaintiffs dismissed that portion of their action seeking to quiet title he stated that he could urge no objection to the entering of a judgment reviving a prior judgment of partition between plaintiffs and defendants, such statement was equivalent to an agreement that the original judgment should be revived.
    [Ed. Note. — For other eases, see Stipulations, Cent. Dig. §§ 36, 37; Dec. Dig. <§=>14(12).]
    3. Stipulations <§=>14(12) — Eppect.
    Where plaintiffs sought not only to quiet their title to land, but to revive a prior judgment of partition, an agreement by defendants’ counsel that such judgment should be revived was a confession of all the facts alleged with respect -to such judgment and relieved plaintiffs; no question of jurisdiction being raised from making any proof.
    [Ed. Note. — For other cases, see Stipulations, Cent. Dig. §§ 36, 37; Dec. Dig. @=>14(12).]
    4. Appeal and Ereob <©=>235 — Waives or Ereobs — Necessary Parties.
    In an action to revive a judgment of partition, where one of the parties had transferred her interest and she was not made a defendant, and the others consented to the revival, defendants cannot on appeal object that the omitted party was necessary; Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1906, requiring a verified plea setting up the omission of parties.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1382, 1383; Dee. Dig. @=> 235.]
    5. Judgment @=870(8) — Revival—Construction oe Judgment.
    Where plaintiffs sued in trespass, to try title and to revive a judgment of partition, plaintiffs cannot, having dismissed that portion of their count in trespass to try title, contend that the revival of the judgment of partition under which they were awarded a writ of possession operated as an adjudication of their title; the dismissal of such count being a dismissal of the entire action in trespass to try title.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1630-1634; Dec. Dig. @=>870(8).]
    On Motion for Rehearing.
    6. Appeal and Ebeob @=>882(3) — Review — Admissions.
    Where, in a suit to revive a judgment in partition, the jurisdiction in the original action was undisputed, and a defendant in suit to revive, who purchased pending partition, admitted that he had notice thereof when he purchased, said admission is binding on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3593, 3594; Dec. Dig. @=> SS2(S)J

    7. Judgment @=>870(8) — Effect of Revival —New Judgment.
    While Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5696, provides that a judgment in any court of record within the state where execution has not been issued within 12 months may be revived by scire facias or an action of debt brought with 10 years after date of judgment, and not thereafter, the revival of a judgment of partition is not an adjudication of the title of those to whom the land was partitioned, for save in an action of debt no new judgment can be granted, this being particularly where the parties in whose favor judgment was revived had dismissed that portion of their action in trespass to try title.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1630-1634; Dec. Dig. @=>870(8).]
    Appeal from District Court, Taylor County; Thomas L. Blanton, Judge.
    Action by F. N. Brown and others against Henry Teel and othe'rs. From a judgment for plaintiffs,, defendants appeal.
    Reformed and affirmed.
    White, Cartlege & Graves, of Austin, for appellants. Louis S. Wise, of Abilene, for ap-pellees.
   DUNKLIN, J.

F. N. Brown, John Bow-yer, John Wise, and H. A. Tillett instituted this suit in Taylor county against Henry Teel, a resident citizen of Hardin county, and R. S. Stephens, a resident citizen of Harris county, by a petition in which two causes of action were alleged in different counts. The first count was a suit in trespass to try-title to recover 192 acres of land situated in Hardin county. In the second count plaintiffs prayed for the revival of a certain judgment rendered by the district court of Taylor county on March 8, 1905, the docket number of which was 1701, vesting title to said land in said parties to said suit and partitioning the same among them, and which said judgment was alleged to have become dormant.

The cause of action set out in the first count of the petition was dismissed by the plaintiffs, but a judgment was'rendered in their favor against the defendants upon the second count, from which judgment the defendants have appealed.

The defendants filed a plea of privilege to be sued in the county of their residence upon the first count in the petition. That plea was sustained and the dismissal of the cause of action set up in that count was upon motion of the plaintiffs after the plea of privilege was sustained. .

By the judgment so revived, title to the property in controversy was decreed to be. vested in F. N. Brown, John Bowyer, H. A. Tillett, plaintiffs in the present suit, and Miss Lou Scott, another party to the former suit, and the property w.as partitioned between those parties. In the present suit it was alleged that the plaintiffs Brown, Bow-yer, and Tillett now own all the interest in the property decreed to them by that judgment, and that plaintiff John Wise now owns by purchase the interest so decreed to Miss Lou Scott. The judgment further decreed that F. M. Tost, John E. Maguire, Henry Teel, and his wife, Susan Teel, owned no interest in said land. In the present suit plaintiffs alleged that said Yost and Maguire have acquiesced in said decree, and since its rendition have asserted no right, title, or interest in the premises and now own none. It was further alleged that if Henry Teel and his wife, Susan Teel, ever asserted any interest or claim in the property, they transferred the same to the defendant R. S. Stephens pending that suit, and therefore defendant Stephens, as well as Teel, was bound by the judgment rendered against Teel, and that said Teel and Stephens are now in possession of the land, and that the judgment has become dormant.

A statement of facts is contained in the record. After reciting the action of the court in sustaining the plea of privilege to the first count and the dismissal of the same by the plaintiffs, it proceeds as follows:

“Thereupon, counsel for the defendants Teel and Stephens, said defendants Teel and Stephens being present in court, stated that plaintiffs could have their judgment under their second count in that petition for a revival of the judgment in said cause No. 1701, whereupon the plaintiffs offered no testimony, but asked for judgment on sucb statement of counsel and the pleadings in the ease, and upon such statement of the counsel and the pleadings in the case the court rendered judgment as now appears in the minutes of this court.”

A purported draft of the judgment rendered by the court was prepared by the counsel for the plaintiffs, who delivered the same to the clerk and had it entered on the minutes. Upon the hearing of defendants’ motion to set aside that judgment the court ordered the entry so made expunged from the minutes because the same did not correctly show the judgment which was in fact rendered, and proceeded then to enter the judgment in the form intended.

Upon the hearing of that motion, as appears in a bill of exceptions, defendants introduced the testimony of one of their attorneys, who represented them in court at the time their plea of privilege was sustained, and at the time the court announced the rendition of judgment upon the second count in plaintiffs’ petition. The testimony so introduced _ appears in a hill of exceptions, and was, in effect, as follows:

“After they had .announced that they would dismiss the trespass to try title feature of the suit, without making any agreement whatever, sir. ⅜ * * I gaid I could urge no objection to entering a judgment reviving the original judgment entered in cause No. 1701, as prayed for in their second count. I said, if the court pleased, that I understood, as a matter of law, that they would have a perfect right, and that I could urge no objection to that land of a judgment. and that all the rights they would have under it would be the issuance of a writ of execution, because the original judgment had become dormant. Now, then, that is what happened as I remember it.”

But the same bill of exception also contains the statement made by the trial judge in substantially the same language as was embodied in the statement of facts, which was prepared and signed by the trial judge who certified that the parties had failed to agree upon th'e statement of facts. The situation presented is somewhat peculiar in. that it appears that the statement of facts, does not contain verbatim the testimony of defendants’ counsel shown in the hill of exception to have been heard when the controversy arose with respect to what counsel for the defendants had said in open court at the time the judgment was rendered. Appellants have presented no motion to strike out the statement of facts, but they insist on treating counsel’s testimony contained in the bill of exception and quoted above, and which differs in verbiage, at least, from the recollection of the court stated at the same time, as the only evidence of what was said by said counsel at the time the judgment was rendered. It is well settled that the statement of facts properly certified is conclusive with respect to what evidence was introduced upon the trial, and cannot be supplemented or modified by any bill of exceptions. Missouri, K. & T. Ry. v. Word, 51 Tex. Civ. App. 206, 111 S. W. 753; Jordan v. Johnson, 155 S. W. 1194. Furthermore, while there is a difference in verbiage of the recollection of such counsel and the court, there is no substantial difference in the purport and meaning. In other words, we are of the opinion that what counsel admits that he said at that time was equivalent to an agreement in open court that plaintiffs might have judgment upon the second count in their petition. Hence all assignments complaining of lack of proof to sus-' tain the judgment are overruled. Lessing v. Cunningham, 55 Tex. 234.

We are of the opinion, further, that such agreement of counsel was a confession of all the facts alleged by the plaintiffs in the second count of their petition necessary to the relief therein sought, and. that under such agreement no proof of such facts was required; no question of jurisdiction of the court to render the judgment being involved. Lanier v. Blount, 45 S. W. 202; Parks v. Knox, 130 S. W. 208, and authorities there cited. Hence all assignments of error predicated upon a failure of the plaintiffs to prove the different facts alleged in their petition are overruled. One of those assignments especially stressed is addressed to the failure of proof to sustain the allegation of purchase by Stephens from Henry Teel pending the former suit and the binding effect of that judgment upon Stephens. We are unable to perceive why the agreement of counsel was not a waiver of proof to sustain that allegation the same as any other allegation contained in the petition.

While, as a general rule, all parties to a judgment are necessary parties to a suit to revive the judgment, yet if, as alleged in plaintiffs’ petition and as admitted by the defendants, by reason of the facts related above, those parties to the judgment sought to be revived which are not parties to the present suit have either transferred their interest or claim to the parties to the present suit, or else have elected to abide by said judgment and are no longer asserting any claim to or interest in the land, no reason is perceived why appellants, who consented to the judgment, can now complain on appeal of a lack of necessary parties. It is a well-settled rule that in the absence of any plea or demurrer presenting the question of a lack of necessary parties plaintiff, the right of a defendant to raise such question upon appeal is waived, and especially is that true where the judgment is by consent. 2 Yernon’s Sayles’ Tex. Civ. Statutes, art. 1906; C., R. I. & G. Ry. v. Seale, 89 S. W. 997; De Perez v. Everett, 73 Tex. 431, 11 S. W. 388. In addition to a revival of the former judgment the court also rendered a judgment in plaintiffs’ favor against the defendants for title to the land.

We are of the opinion that the extent of the relief which could properly be awarded to the plaintiffs would be a revival of the former judgment and the award of a writ of possession in plaintiffs’ favor, as insisted by appellants in one of tlieir assignments of error. While there are some general allegations in the second count of the petition, to the effect, that defendants own no title to the land, yet the only attempt by plaintiffs to show title was an effort to revive the former judgment, and we do not believe that the second count in the petition, considered as a whole, can be properly construed as a suit in trespass to try title. Furthermore, for the plaintiffs to say that their suit was in trespass to try title after they had dismissed that cause of action, following the decision of the court that the defendants could not be sued in that county for that relief, would be a contradiction. Hence a dismissal of the first count in the petition was a dismissal of the entire suit in trespass to try title. Camp v. Gainer, 8 Tex. 372; 23 Cyc. 1458, 1461, 1462.

Accordingly, the judgment of the trial court will be reformed so as to exclude therefrom any decree of title, leaving only a decree reviving the former judgment and awarding a writ of possession in plaintiffs’ favor.

Reformed and affirmed, and cost of appeal taxed against appellees.

On Motion for Rehearing.

Appellants, with much earnestness, press the contention that as the judgment revived was rendered in a county other than that in which the land in controversy is situated, R. S. Stephens was not affected with notice of the pendency of the original suit, and for that reason we erred in affirming the judgment of revival as against him as well as against Henry Teel.

The authority relied on particularly is the decision in the case of Jones v. Robb, 35 Tex. Civ. App. 263, 80 S. W. 399,'by the Court of Appeals of the First District, in which the following was said by Justice Gill:

“In Benton v. Shafer, 47 Ohio St. 117, 24 N. E. 197, 7 D. R. A. 812, the rule which unques- . tionably prevails in this state is announced, viz., that the suit, in order to affect lands purchased during its pendency, must be brought in the county where the land is situated.”

Appellees reply, first, that the announcement quoted was dictum, since the suit in which the judgment was rendered was in fact instituted in the county where the land was situated; and, second, that the Ohio decision referred to was controlled by a statute of that state restricting jurisdiction to try title to land wholly situated in any county to the courts of that county; while by section 13, article 1830, of the statutes of this state, suits for partition of land may be instituted in the county in which any of the defendants resides, as well as in the county where the land is situated. And in support of their contention that the common-law rule of lis pendens notice, which prevailed prior to the enactment in 1905 (Acts 29th Leg. c. 128) of articles 6837 to 6840 (Vernon’s Sayles’) inclusive, is contrary to the announcement so made in Jones v. Robb, appellees cite Latta v. Wiley, 92 S. W. 436; Southern R. I. Plow Co. v. Pitluk, 26 Tex. Civ. App. 327, 63 S. W. 354.

It is unnecessary to determine that question in this case. No contention is made by appellants that the court rendering the former judgment was without jurisdiction of the controversy, which was one of partition and clearly within the jurisdiction of the court which rendered it. Article 1830, subd. 13, Vernon’s Sayles’ Texas Civil Statutes. If that court had such jurisdiction, then the confession by defendant Stephens in the present suit that he had notice of the. pendency of the former suit at the time he purchased from parties thereto is binding upon him upon this appeal.

All other questions now presented by appellants in their motion have been sufficiently discussed in our original opinion, and we adhere to the conclusions there expressed.

Appellees likewise have filed a motion for rehearing in' which it is earnestly insisted that we were in error in so reforming the judgment of the trial court as to eliminate therefrom a recovery of title to the land, and cast appellees in the costs of the appeal by reason thereof. The contention is made that the revival of the former judgment and the award of a writ of possession has the legal effect of a new judgment in plaintiffs’ favor for title and possession of the land.

Article 5696, Vernon’s Sayles’ Texas Civil Statutes, reads:

“A judgment in any court of record within this state, where execution has not issued within twelve months after the rendition of the judgment, may be revived by scire facias or an action of debt brought thereon within ten years after the date of such judgment, and not after.”

The three cases which appellees cite in support of their contention are Bludworth v. Poole, 21 Tex. Civ. App. 551, 53 S. W. 717, Collin County Nat. Bank v. Hughes, 154 S. W. 1183, and Coleman v. Zapp (Sup.) 151 S. W. 1043.

The judgment revived in each of those cases was a judgment for debt, and the pleadings and proof which authorized a revival of the judgment also authorized a new judgment for the debt under the terms of the statute. But that statute does not authorize a new and independent judgment upon the same demand, except it be for debt, and hence the decisions do not apply in the present case.

After the plaintiffs dismissed their suit in trespass to try title, their only cause of action remaining was a suit to revive the former judgment. Defendants consented and agreed to the granting of that relief, and nothing more. Whether or not defendants have acquired title to the property subsequently to the rendition of the former judgment, could not be determined after the dismissal of the suit to try title, and whether or not the revival of the judgment would preclude the defendants from hereafter asserting any such title, if they have acquired any, is an issue we are not called upon to decide, and hence decline to determine it. See Moore v. Snowball, 98 Tex. 16, 81 S. W. 5, 66 L. R. A. 745, 107 Am. St. Rep. 596.

Both motions for rehearing are overruled.
      <S=>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <§^>For other eases see same topic and KEY-NUMBER in all ICey-Numbered Digests and Indexes