text:
    CUMMER MFG. CO. OF TEXAS v. BUTCHER et al.
    (No. 1447.)
    (Court of Civil Appeals of Texas. Texarkana.
    April 21, 1915.
    Rehearing Denied May 6, 1915.)
    1.Libel and Slandek @=3125 — Verdict —■ Construction.
    In an action for slander against a manufacturing company and its general manager, in which the court charged that if a third person, in conversation with the cashier of plaintiff’s bank, stated that plaintiff was a “daylight robber,” and if the manager was present and ratified the statement, knowing that plaintiff dealt with such bank, and that such language was intended by the manager to affect plaintiff’s credit, plaintiff might recover against the manager, and that, if the manager was then acting within the scope of his authority as the representative of the company, the plaintiff might also recover against the company, a verdict in favor of the manager also exonerated the company.
    LEd. Note. — Eor other cases, see Libel and Slander, Cent. Dig. § 374; Dec. Dig. @=125.]
    2. Libel and Slander @=73 — Persons Entitled to Sue — Corporations and Officers.
    Plaintiff, the president and majority stockholder of a Michigan company and of a Texas company, on showing that defendant company published in a Michigan newspaper the statement that it had started in the United States court a suit to enjoin plaintiff’s companies from making crates infringing defendant’s patent, could not maintain an action for damages for a libel upon himself personally, since, if the publication was libelous, the right to sue therefor would be in the corporation and not in plaintiff, as an officer or stockholder.
    [Ed. Note. — Eor other cases, see Libel and Slander, Cent. Dig. § 174; Dec. Dig. @=73.]
    3. Libel and Slander @=116 — Injury to Business — Evidence.
    In such case plaintiff, upon proper proof of loss of sales and damages to his business by reason of the defamatory charges, might have recovered damages for such injury to his business, but damages would not be presumed merely because the plaintiff’s companies were charged with selling an article infringing another’s patent.
    [Ed. Note. — Eor other cases, see Libel and Slander, Cent. Dig. §§ 343, 345, 346, 348, 349; Dec. Dig. @=110.]
    Appeal from District Court, Wood County; R. W. Simpson, Judge.
    Action by John E. Butcher against tbe Cummer Manufacturing Company of Texas and J. K. Warren. Judgment for defendant Warren and for plaintiff against defendant company, and it appeals.
    Reversed and remanded for new trial.
    Harris & Britton, of Quitman, and A. P. Parks, of Paris, for appellant. Jones & Jones and Tharp & Landers, all of Mineóla, for' appellees.
   HODGES, J.

John E. Butcher, the appel-lee, instituted this suit in the court below against the Cummer Manufacturing Company of Texas and J. K. Warren jointly, to recover damages which he alleges were occasioned by reason of the circulation of certain libels and certain defamatory utterances emanating from Warren while the latter was acting as the agent and representative of the Cum-mer Manufacturing Company. The appellee alleges that he was president of the Butcher Folding Crate Company of Vassal1, Mich., and also president of the Mineóla Box Manufacturing Company a corporation with its domicile at Mineóla, Wood county, Tex., and that he owns a majority of the stock in both of these corporations. He further alleges that the Cummer Manufacturing Company of Texas is a manufacturing plant engaged in making folding crates similar to those manufactured and sold by the companies of which he was president; that the Cummer Manufacturing Company, acting through its general manager, J. K. Warren, and Warren for himself, “did publish and cause to be published, and did circulate and cause to be circulated, certain false, malicious and libelous matter” concerning the appellee. The defamatory publication consisted of the following, taken from the Cadillac Evening News, a newspaper published in the city of Cadillac and state of Michigan:

“Begins Big Suit.
“Cummer Manufacturing Company Starts One ip United States Court at Detroit, to Enjoin Folding Crate Company.
“Butcher Co., of Vassar, Mich., and Mineóla, Texas, Makes Crates under Cum-mer Patent.
“The Cummer Manufacturing Company of this city has entered suits in the U.S. courts for the Eastern District of Michigan against the Butcher Folding Crate Michigan-Mineola, Texas, and elsewhere, John F. Butcher, president, to enjoin the further manufacture and sale of collapsible crates and egg carriers which the Cummer Manufacturing Company claim are covered by U. S', letters patent, owned and controlled by them.”

It is further alleged that, after the appearance of this article in the above-mentioned paper, the defendants had several thousand copies of it printed, which they caused to be circulated in the state of Texas and among the patrons and customers of the appellee. Other publications are also referred to as a basis for damages, but these need not be noticed, inasmuch as they were not submitted as grounds for recovery. It was also alleged that the appellants were competitors of the appellee in Texas and other portions of the United States, in the sale of collapsible onion crates; that the appellee during the year 1912, for himself and as agent of the Mineóla Box Manufacturing Company, was engaged in the sale of such crates; that practically his sole employment was in the management of the Mineóla Box Manufacturing Company and the sale of its products on his own account. It is also charged that the appellant, through' its superior officers, entered upon and pursued a course of unfair competition and conspired to destroy the business of the appellee by the publication and circulation of the various libels set out and by certain utterances, which will hereafter be referred to, emanating from its superior officers.

As the basis of the action for slander, it was alleged that on or about the 31st day of March, 191?, J. K. Warren, as the general manager and superior officer, of the Cummer Manufacturing Company, and acting in his representative capacity, together with one Agar, who, it is also alleged, was a general agent of the Cummer Manufacturing Company, made certain defamatory and slanderous statements concerning the appellee, which are fully set out in the petition. It is alleged that Agar, in Warren’s presence and with his assent, stated to R. J. Gaston, the cashier of the bank with which Butcher transacted business, that Butcher was a daylight robber, and that other statements were made to Gaston and other párties which were calculated and intended to injure the reputation and credit of Butcher.

The Cummer Manufacturing Company filed a general demurrer and special exceptions and pleaded the truth of the article published in the Cadillac Evening News. Both defendants in the court below denied that Agar was the agent of the Cummer Manufacturing Company of Texas, and denied that J. K. Warren ever made any statements derogatory to the appellee, or that he authorized or ratified any such statements made by Agar, and denied that Agar had conspired together with them or with Warren to injure the ap-pellee by making or publishing defamatory statements concerning him.

The case was tried before a jury; and, after the conclusion of the evidence, the court in his charge submitted, as the basis of the claim for damages, only the publication previously quoted and the statements made by Agar to R. J. Gaston, in which it is alleged that Agar charged Butcher with being a daylight robber. The evidence showed that the Cummer Manufacturing Company was a corporation doing business in the state of Michigan, and the Cummer Manufacturing Company of Texas, the appellant in this suit, is a distinct corporation existing under the laws of Texas and doing business at Paris, Lamar county, Tex. The jury returned a verdict in favor of the appellee against the Cummer Manufacturing Company of Texas for $750 actual damages and $500 punitive damages, and also returned a verdict in favor of the defendant J. K. Warren. This appeal is by the Cummer Manufacturing Company of Texas alone.

The first and second assigned errors complain of the action of the court in overruling certain special exceptions of the appellant to the plaintiff’s amended original petition. Inasmuch as the questions raised by these assignments will be discussed later on in disposing of other assignments, we pass them for the present.

Upon the issue of slander the court charged the jury that if they should find1 that Agar, in a conversation with R. J. Gaston, stated that Butcher was a daylight robber, and they should further find that Warren was present and assented to or ratified that statement by words or sign, and that Warren knew at the time that Butcher was president of the Mineóla Box Manufacturing Company, and that, as such president, he dealt with and borrowed money for his company from the bank of which Gaston was cashier, and if this language was intended by Warren to affect Butcher’s standing, as president of that company, with Gaston, then the jury were authorized to return a verdict for damages against Warren. In addition to this the jury were instructed that if they found that at the time the foregoing statement was made, if it was assented to or ratified by Warren, and if Warren was at the time acting within the scope of his authority as the agent or representative of the appellant, then they might also return a verdict for damages against the appellant jointly with Warren. The finding of a verdict in favor of Warren can be construed only as an exoneration of both Warren and the appellant from the charge of slander based upon the language attributed to Agar in his conversation with Gaston.

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

“If you shall find the plaintiff has shown, by a preponderance of the evidence, that he was engaged in the business of selling crates manufactured by the Mineóla Box Manufacturing Company for profit to himself, and that the Cummer Manufacturing Company of Paris, Tex., knew that he was so selling collapsible crates, if he was, and if you further find that the said defendant Cummer Manufacturing Company, acting by and through its superior officers or agents with intent to1 injure said Butcher in his business of selling crates, if he was, circulated the article introduced in evidence, headed ‘Begins Big Suit,’ copied from the Cadillac Evening News, then if you further believe that as the direct and proximate result of such circulation, if any, said Butcher suffered financial loss by reason of the curtailment, if any,. of sales of his said crates, you will allow him, as against the defendant Cummer Manufacturing Company, such sum of money as you find will fairly and reasonably compensate him for his loss,” etc.

Several objections to this charge were presented. in the court below, among which are the following: First. That the article referred to is not libelous against the appellee and could not form the basis of an action for libel by him; that it could be considered libelous, if at all, only against the Mineóla Box Manufacturing Company, and not as to Butcher. Second. That there was no evidence that Butcher suffered any financial loss by reason of the circulation of the article referred to, or that the sale of crates by him had been curtailed. Third. That there was no basis for the right to recover ■exemplary damages which the latter portion of the charge, not quoted, permitted.

If this suit is to be treated as one by Butcher to recover damages for a libel of himself, the facts pleaded are insufficient to support a judgment in his favor for any sum, either actual or exemplary. The publication submitted by the court to the jury, and which is the only one relied on in this appeal to establish libel, even if it be untrue, could not, by any reasonable construction, he made to impute any wrongdoing to Butch■er personally. It clearly refers to the two private corporations of which' he was the president; one of them being situated in Michigan, and the other in Texas. The evidence shows that a suit had been instituted against the Michigan corporation by the Cummer Manufacturing Company of Michigan. The falsity of this publication consisted of the charge or intimation that the Mineóla Box Manufacturing Company also had been sued and charged with an infringement of a patent right owned by the Cummer Manufacturing Company of Michigan. If the language of this publication can be considered libelous, it is because it reflected upon the corporation of which Butcher was the president. The right to sue.for damages resulting from such libel would be in the party libeled, the corporation, and not in a stockholder or an officer. Butcher, not having been libeled, clearly had no right to bring the suit.

It may be conceded that, under the very comprehensive amended original petition filed in this case, Butcher might have recovered, upon' proper proof, damages to his private business by reason of the defamatory charges concerning the manufacture and sale of the particular crates which he handled as the sales agent of the Mineóla corporation. In giving the charge objected to, the trial judge probably had in mind the submission of that issue to the jury. But an action for damages upon that state of facts is in no sense a suit for a libel of the person, and the rules which presume injury upon proof of defamation do not apply. It devolved upon Butcher, in order to entitle him to recover damages in a suit of that character, to prove a loss of sales and the extent of the injury he thereby sustained. Wilson v. Dubois, 35 Minn. 471, 29 N. W. 68, 59 Am. Rep. 335; 25 Cyc. 561. In such a suit Butcher would be entitled to compensation, not for an injury to his reputation, but for loss in his business. The law does not presume damage to one’s business merely because the party is charged with selling an article which he did not have a right to sell by reason of some other person or corporation owning the patent. If Butcher suffered in this instance, it was because of the loss of sales of the crates he was handling; yet he has not shown that he lost any. Hence there was no basis for the submission of that issue to the jury. We therefore conclude that the court erred in giving the charge objected to. We are further of the opinion that the evidence in this case is wholly insufficient to sustain a judgment for damages for libel, and suggest that if, upon another trial, the appellee does not materially strengthen the evidence to support his claim for damages, the court should instruct a verdict for the de fendant.

The judgment against the appellant is therefore reversed, and the cause remanded for another trial. The judgment in favor of Warren, not having been appealed from,' will remain undisturbed.
      @=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: WILLSON, C. J.

license: Public Domain

text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. NEALE et al.
    (No. 1445.)
    (Court of Civil Appeals of Texas. Texarkana.
    April 28, 1915.
    Rehearing Denied May 6, 1915.)
    1. Appeal and Error &wkey;>662 — Record — Geounds of Decision.
    An assignment of error, not supported hy the record, will'be overruled.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2850-2852; Dec. Dig. &wkey; 662.]
    2. Carriers <&wkey;218 — Carriage op Live Stock —Actions—Time to Sue — New Cause op Action.
    In an action for delay in the shipment of mules, the petition alleged that defendant carrier negligently failed to transport the shipment to the destination in another state, but transported them to another point, and there held them in pens for five days or more beyond the reasonable time for transportation, that plaintiffs were compelled to divert the shipment, and that by the delay plaintiffs were damaged, because of the shrinkage and depreciated condition of the mules, to the amount of $900, and also because of extra feed bills of $50 and traveling expenses to look after the shipment amounting to $40. An amended petition declared on the same contract for delay in moving the mules after they were loaded, for unloading and detaining them in wet and muddy pens without proper food and shelter, for failure to keep them separated in reloading, and for allowing them to overeat upon reaching the point to which the shipment was diverted, whereby they became foundered and unfit for sale, and alleged damages at $950. The contract stipulated that suit should not be maintainable unless instituted within 91 days after the injury. The amended petition was filed after the expiration of such 91 days. Held, that no new cause of action was set up in the amended petition within the purview of the stipulation.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 674-696, 927, 928, 933-949; Dee. Dig. <&wkey;>218.]
    3. Carriers &wkey;>218 — Carriage of Live Stock —Actions—Claim oe Loss.
    The filing of a suit within 30 days was a compliance with a stipulation in a contract for the shipment of live stock, requiring the shipper to file a written claim of damages within 30 days after the injury.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 674-696, 927, 928, 933-949; Dec. Dig. <&wkey;218.]
    Appeal from Fannin County Court; Rosser Thomas, Judge.
    Action by Jas. Neale and others against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiffs, defendant appeals.
    Affirmed.
    Head, Dillard, Smith, Maxey & Head, and J. F. Holt, all of Sherman, and Chas. C. Huff, of Dallas, for appellant. S. F. Leslie and J. W. Gross, both of Bonham, for appellees.
   WILLSON, C. J.

In their original petition filed December 23, 1913, appellees Neale, Gibson, and Clifton declared on a contract made November 20, 1913, covering the transportation by appellant and connecting lines of railway of two car loads (45 head) of mules from Leonard, Tex., to Memphis, Tenn. Ap-pellees .alleged that appellant negligently failed and refused to transport the mules to Memphis and there deliver same to the consignee, their agent, as agreed upon, but instead transported the mules to MeAlester, Okl., and there held them in pens for “five days or more beyond .the usual and reasonable time required for transporting such character of shipment from the point of origin to the said point of destination.” They then alleged that after appellant “finally refused to transport said stock to their original destination, they were compelled to divert said shipment, and did so divert it, and consigned the same to plaintiffs’ order at East St. Louis, Mo.” They then alleged:

“That by reason of the unnecessary delay occasioned by the defendant’s breach of said contract for the transportation of said stock and the safe delivery at the original point of destination, plaintiffs sustained damage by the consequent shrinkage and loss of flesh and depreciated appearance and condition of said mules, amounting to $20 per head, a total of $900 for said 45 head, and the further loss by reason of said unnecessary delay occasioning extra feed hills, amounting to $50. That plaintiffs were compelled, by reason of the breach of contract by defendant, as aforesaid, to make a trip to St. Louis, Mo., to see after said stock and arrange for their sale on the market there, thereby occasioning an extra expense in railroad fare, hotel bills, and incidental expenses for said trip amounting to $40.”

The cause was tried on appellees’ first amended original petition filed April 30, 1914. In . this petition appellees declared on the same contract, and sought a recovery of damages of appellant for delay in moving the mules after they were loaded on the cars at Leonard; for unloading and detaining them during several days, without proper food and shelter, in wet and muddy pens at MeAlester; for failure, in reloading the mules at Me-Alester after such delay, to separate and place together in the respective ears the mules loaded therein at Leonard, and permitting them, instead, “to become mixed and mingled together” in the two cars; for delay in transporting the mules after they were reloaded at MeAlester from that place to East St. Louis, to which point, appellees alleged, they were compelled to divert said shipment, and did so divert and consigned the same to plaintiffs’ order; for injury to the mules from overeating after they reached East St. Louis, due to their starved condition, whereby they “became foundered and unfit for sale”; and' for the expenses of a trip plaintiffs were forced to make to East St Louis because of the delay and improper reloading of the mules complained of. In this petition appellees alleged the damages they had suffered to be $950.

The trial court found the facts to be as follows: One of the cars was loaded 3 or 4 o’clock of the afternoon of November 20, 1913, and the other about 5 o’clock of the morning of November 21st. The two cars left Leonard about 6 o’clock of said morning of November 21st, and reached McAlester in the nighttime of that day over the Missouri, Kansas & Texas Railway Company’s line of railway. That railway company then tendered the shipment to its connecting carrier, the Chicago, Rock Island & Pacific Railway Company, for carriage to Memphis. The latter company refused to receive the shipment because the mules had not been dipped, as required by the quarantine laws of Tennessee. Had it received and carried the mules on to Memphis it would not have been necessary to unload, feed, water, and rest them at McAlester, because they had not then been on the cars 28 hours. It became necessary, because of the delay at McAlester occasioned by such refusal, to unload the mules at Mc-Alester to comply with the federal law applying to shipments of live stock. Therefore, on the morning of November 22d the mules were unloaded at McAlester by the Missouri, Kansas & Texas Railway Company. It was then cold, rainy weather. The pens in which the mules were placed were muddy, without shelter, and without facilities for properly feeding the animals. When the Chicago, Rock Island & Pacific Railway Company refused the shipment appellant notified appellees of the fact. Appellee Clifton then went to McAlester. He was told that the quarantine authorities of Tennessee required that the mules should be dipped in an ar-senical solution before they were carried into that state. Said appellee replied that he “would not consent to having the mules dipped.” When the animals had been three days and nights in the pens, said appellee “ordered said shipment diverted to East St. Louis.” It was accordingly so diverted, moving to that point over “an entirely different route and by different carriers than it would have taken to the original point of destination.” The shipment reached East St. Louis on the morning of November 26th, and the mules were sold on the market there. Because of the condition they were in on account of delay in transporting them, improper feeding and handling, and exposure they were subjected to' while in the pens at Mc-Alester, the mules sold for $900 less than they otherwise would have sold for. Appellant did not agree that the shipment should be diverted to East St. Louis. Under the quarantine laws of Tennessee, had the mules been carried into the state of Tennessee, they could not have remained there unless dipped in the arsenical solution “either at the point of origin, en route, or on arrival at destination.” Neither appellees nor appellant’s agent at Leonard knew what those laws were at the time the contract covering the shipment was made. On facts found by him the trial court concluded that:

“Plaintiffs sustained damages occasioned by negligence and want of ordinary care on part of defendant and connecting carriers in that said shipment was delayed en route beyond a reasonable time for its transportation, and by such delay and by reason of confinement of said mules in muddy pens and exposure and improper handling and lack of feeding properly, to the amount claimed, to wit, $900.”

The appeal is from a judgment in favor of appellees in accordance with the conclusion reached by the court.

The complaint made in the first assignment that the court held appellant liable for injury suffered by the mules after the shipment was diverted from Memphis to East St. Louis is not supported by the record. Therefore the assignment must be overruled. The judgment was based on a finding that the mules reached East St. Louis in a damaged condition, due to “delay in transportation, rough handling, lack of feeding, and storage in muddy pens.” There was testimony to show, and the court found, that the mules were roughly handled, improperly fed and kept in muddy pens at McAlester, but there was no testimony tending to show, and the court did not specifically find, that they were subjected to such treatment after appellees directed that the shipment be diverted to East St. Louis. There was testimony showing, and the court found, that the shipment was delayed three days and nights at Mc-Alester, but he did not specifically find, and the testimony did not show, that any of the delay there occurred after the order was given to divert the shipment. Instead, a reasonable inference from the testimony and findings made by the court is that the mules were promptly and with due care transported from McAlester to East St. Louis after the order was given to send them to the latter place.

The contract covering the shipment contained a stipulation as follows:

“No, suit shall be maintainable unless instituted within 91 days after the happening of the injuries, delay or delays complained of, any statute of limitations to the contrary notwithstanding'.”

It is not contended that suit was not commenced within 91 days after the mules were injured as claimed. The contention is that the cause of action as set up in the amended petition, filed after the expiration of the 91 days, was not the one set up in the original petition, but was a new one, and therefore that the stipulation applied and the suit was not maintainable. We are of opinion the contention should be overruled. The allegations in the two petitions, so far as same are material to the question made, are stated above. It will be noted that the contract declared upon is the same in each of the petitions, and that in each of them the recovery sought by appellees was on account of injury to the mules, which appellees alleged was caused by appellant’s failure to comply with its undertaking to promptly and with due care transport them. The cause of action stated in the petitions was in effect the same, but it was set out with greater detail in the amended petition. Bigham v. Talbot, 63 Tex. 273; Railway Co. v. Mitten, 13 Tex. Civ. App. 653, 36 S. W. 285; Railway Co. v. Clippenger, 47 Tex. Civ. App. 510, 106 S. W. 157; Mayes v. Magill, 48 Tex. Civ. App. 548, 107 S. W. 864; Railway Co. v. Irvine, 64 Tex. 529; Railway Co. v. Yeale, 39 Tex. Civ. App. 37, 87 S. W. 202; Railway Co. v. Buckalow, 34 S. W. 165.

Tlie contract contained another stipulation as follows:

“The shipper shall, within 30 days after the happening of the injuries or delays complained of, file with some freight or station agent of the carrier on whose line the injuries or delays occurred his written claim therefor, giving the amount. Shipper’s failure to comply in time and manner with the requirements of this section shall absolutely defeat and bar any cause of action for any injuries or delays to said live stock as aforesaid, and no suit shall be brought against any carrier except against the carrier on whose line the injury or delay occurred, and no damages shall be recovered except those set forth in the required written notice and claim aforesaid and no greater amount than claimed in said notice.”

Unless the filing of the suit within 30 days after the happening of “the injuries and delays complained of” was a compliance with the requirement of the stipulation it was not complied with. Appellant insists that the filing of the suit within the time specified was not a compliance with the stipulation. As we think it was (Phillips v. Tel. Co., 95 Tex. 638, 69 S. W. 63; Railway Co. v. Davis, 50 Tex. Civ. App. 74, 109 S. W. 422), it is not necessary to determine, as it would he if we thought otherwise, whether on the pleadings and facts in the record appellant had a right to complain of the failure- of appellees to comply with the requirement in the stipulation (Railway Co. v. Honea, 84 S. W. 267; Railway Co. v. Harris, 67 Tex. 166, 2 S. W. 574; Railway Co. v. Greathouse, 82 Tex. 104, 17 S. W. 834).

Assignments not disposed of by what has been said are believed to be without merit.

The judgment is affirmed.
      ©=jFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WALTHxlLL, J.

text:
    UNITED STATES & MEXICAN TRUST CO. v. AUSTIN.
    (No. 436.)
    (Court of Civil Appeals of Texas. El Paso.
    April 15, 1915.
    Rehearing Denied May 13, 1915.)
    1. Appeal and Ebeje &wkey;>215 — Pbesebvation op Objections — Insteitctions.
    Where the record does not show that the objection to the charge was presented to the court before the charge was read to the jury, or that the court acted on the objection made, or that any bill of exception was taken to the court’s action, as required by Acts 33d Leg. c. 59, relating to instructions, the assignment of error will not he considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1309-1314; Dec. Dig. <&wkey; 215.) ’
    2. Appeal and Eeeoe <@=»301 — Reservation op Exceptions — Recobd.
    An assignment of error that the court could not properly render judgment against appellant for more than a certain amount, not found in the motion for new trial, could not be considered on appeal, where it did not constitute an. error of law apparent on the face of the record.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1743, 1753-1755; Dec. Dig. <&wkey;>301.)
    Appeal from District Court, Pecos County; ,W. C. Douglas, Judge.
    Action by W. L. Austin against the United States & Mexican Trust Company. Prom a judgment for plaintiff, defendant appeals.
    Affirmed.
    Williams & Jackson, of Pt. Stockton, J. R. Hill, of Pt. Davis, and H. S. Garrett, of San Angelo, for appellant. W. A. Hadden, of Pt. Stockton, and Sanford & Wright, of Eagle Pass, for appellee.
   WALTHxlLL, J.

This suit was brought by appellee against appellant on the following contract:

“W. L. Austin v. United States & Mexican Trust Company. No. 1027.
“In District. Court, Pecos County, Texas.
“In compromise and settlement of the causes of action sued upon by plaintiff herein, it is hereby agreed as follows:
“(1) The defendant, the United States & Mexican Trust Company, shall within thirty (30) days from this date pay to the plaintiff, W. L. Austin, in cash, the sum of seven hundred and thirty dollars in full settlement of the commissions claimed by plaintiff herein on account of sales to J. P. Ash, R. B. Simmons, Mrs. Elizabeth M. Durkee, or Rodney Durkee, and H. D. Thompson.
“ (2) The defendant, the United States & Mexican Trust Company, agrees to immediately proceed to the collection of the remainder of the purchase price of the land described in said petition as having been sold to Jennie Brown and Mary Brown, and particularly to second annual payment upon such purchases now due, and in event of the collection of such second annual payment, or the taking by the United States & Mexican Trust Company of adequate security therefor, the trust company shall at once pay to the plaintiff herein, in cash, one thousand dollars, being the remainder of his commission on account of sale to said Jennie Brown and Mary Brown. It is further agreed that if within sixty days from this date the defendant trust company has not secured from the said Jennie Brown and Mary Brown the payment in cash of the second annual payment due upon said purchase, or the securing of the same by adequate security, that the plaintiff shall have the right to proceed on behalf of the trust company to collect said second annual payment or the remainder due of said purchase price and upon such collection or upon the taking by'said plaintiff for the trust company of adequate security for said second payment, the trust company shall pay in cash to the plaintiff the commission remaining due as aforesaid, and shall also pay to said Austin 10 per cent, of amounts collected by him or which, through his efforts, shall be adequately secured to the trust company in full satisfaction and settlement of all claims of said plaintiff for services rendered in and about the making of such collection.
“(3) It is further ag'reed that the United States & Mexican Trust Company shall proceed at once for the collection of the second annual payment due upon the Randall sale mentioned in the pleadings herein, and upon the receipt of the second annual payment shall at once pay in cash to the plaintiff the sum of two hundred and seventy and 33/ioo ($270.25) dollars, balance due upon said commission, and it is further agreed that in the event the United States & Mexican Trust Company shall not make collection of said second annual payment within sixty days from this date, that plaintiff may, if he desired, proceed to secure collection of said second annual payment, and may arrange for the payment by said purchaser to him of the sum of two hundred and seventy and 25/ioo (¡5270.25) dollars and the payment of the remainder of said second annual payment to the trust company.
“(4) The plaintiff herein acknowledges full receipt, satisfaction and settlement of any claims for salary sued for herein, and the defendant, the United States & Mexican Trust Company, acknowledges full receipt, settlement, and satisfaction of any claim on its part for expense money advanced or paid to said plaintiff.
“(5) The defendant, the United States & Mexican Trust Company, acknowledges full receipt, settlement, and satisfaction of any claim on its part for expenses or expense money advanced or paid to said plaintiff.
“Dated October 8, 1913.”

The contract was signed by the respective parties by counsel. The case was tried before the court and jury and submitted by the court on special issues, and upon the answers of the jury, judgment was rendered, for appellee for $2,007.25, to be reduced by a garnishment judgment of $261.65, if discharged in 60 days. •

Appellant’s first assignment of error and the proposition thereunder claim error in overruling its motion to set aside the verdict on the ground that the evidence wholly fails to show that it could have collected the Jennie and Mary Brown notes and the Randall notes, mentioned in the agreement quoted. The answer of the jury to the second issue was that the appellant did not use proper diligence in the collection of the notes, and the answer to the third issue was that, if the appellant had used proper diligence, it could have collected the notes in cash. Each of these findings has evidence to support it, and the court was not in error in refusing to set the verdict aside on the ground assigned. The assignment is overruled.

Appellant’s second assignment complains of the fourth paragraph of the court’s charge as being contradictory, uncertain, and ambiguous, and as authorizing the jury to find for the plaintiff, even though they should believe from the evidence that a sale of the lands in Pecos county under the vendor’s lien or deed of trust would have resulted in the retaking of said lands by the defendant for a price less than the amount shown to be due on said purchase-money notes.

Appellee objects to a consideration of this assignment, for the reason that it complains of error in the charge, and does not refer to any bill of exception as having been taken to the charge. The record shows that appellant objected to the charge on the ground stated in the assignment, and made said objection one ground for a new trial in its motion, but the record does not show that the objection to the charge was presented to the court before the charge was.read to the jury, or that any action was taken by the court on the objection made, or that any bill of exception was taken to any action of the court with respect to said portion of the charge, as required by the act of the Legislature approved March 29, 1913 (Gen. Laws 1913, p. 113). Heath v. Huffhines, 168 S. W. 974; Stephenville, N. & S. T. Ry. Co. et al. v. Wheat, 173 S. W. 974. In the case of I. & G. N. Ry. Co. v. Tate, 170 S. W. 1061, the Third Court of Appeals said:

“There is in the record what purports to be ‘objections of defendant to the court’s charge.’ But this cannot be treated as a bill of exceptions. It does not appear to have been presented to the judge trying the case, * * * and there is nothing in the record to show that the court’s attention was ever called to such objections.” Railway Co. v. Battle, 169 S. W. 1048; Railway Co. v. Feldman, 170 S. W. 133.

For reasons stated, the second assignment, cannot be considered.

Appellant’s third assignment of error complains that the court refused to submit to the jury its special charge No. 4, but appellant, refers us to no bill of exception taken to the action of the court in refusing to give the charge, and, for reasons stated above, the assignment cannot be considered.

Appellant’s fourth assignment is in words following:

“Under the pleadings and evidence in this case, the court could not legally render judgment against appellant for anything except the $730 which it had contracted to pay appellee in cash, inasmuch as the contract provided that, unless the second annual payments were made by the Browns and Randell, or the same were secured, the company did not agree to pay Austin anything over and above the $730, and inasmuch as Austin had the right to malee the said collections or take the security himself, and he and his attorneys refused in May before this trial in September, and inasmuch as the evidence fails to show that said money was collected or said security taken, it was error to render judgment against appellant for more than the $730.”

The assignment is based on the proposition that Austin, under the contract quoted, had the right to collect the notes, and, the contract providing- that he should be paid additionally only upon payment of the second annual payments, or the securing of adequate security, he was not entitled to recover more than the $730, unless the evidence shows either that the notes had been x>aid or that the security had been taken. This assignment is not found in the motion for new trial, and cannot be considered, unless the error is fundamental or error in law apparent on face of the record. It would be error to render judgment on the contract sued on for an amount additional to the $730, if Austin had assumed in the contract the collection of the notes or the securing of adequate security,, and was not prevented from performing that part of the contract by appellant. But we construe the contract to mean that he had the right .only to do so, and it was not alleged that he at any time undertook to exercise-that right, or to collect the notes or secure-security on the notes, but rather that he refused to exercise that right.

The sixth paragraph of plaintiff’s petition, on which the case was tried, alleged that the defendant failed and refused to mate any effort to collect the installment due on the notes or to secure additional security, hut expressly repudiated and refused to carry out the compromise agreement, and so notified plaintiff, and notified plaintiff that defendant did not have possession of the notes, but that they were in the possession of a hank to which they had been pledged. The defendant’s answer denied these allegations, and in the second subdivision of its answer pleaded as affirmative defense to plaintiff’s suit for the $1,000 due as commissions on the sale of real estate that it was never within the contemplation of or assumed or agreed by the parties to the contract, that the notes should be collected out of the lands sold by foreclosure thereon, but, on the contrary, in the event of default in payment for said land, plaintiff was to receive no commissions, and that in no event could plaintiff be heard to assert that defendant should have attempted to collect said notes by foreclosure, and on these issues the case was tried. It seems to us that neither in the verbiage of the contract nor on the record is it apparent that such a construction could be given the contract, or the issues made in the pleadings. The assignment is overruled.

The fifth assignment alleges error in rendering judgment in any amount above $730, less the garnishment judgment. This assignment is not raised in the motion for new trial. The amount for which the judgment was rendered over and above $730 (less the garnishment judgment) was authorized under the second subdivision of the contract sued on. If there was error, it would not be fundamental or error of law apparent on face of record, and could not be considered, because not properly submitted.

Finding no reversible error, the case is affirmed.
      tgx^jFor other eases see same topic and KEY-NÜM.BER in all Key-Numbered Digests and Indexes


author: FLY, C. J.

text:
    MAGNOLIA PAPER CO. v. DUFFY.
    (No. 5455.)
    (Court of Civil Appeals of Texas. San Antonio.
    April 14, 1915.
    Rehearing Denied May 12, 1915.)
    1. Master and Servant <&wkey;286 — Save Place to Work — Guarding Machinery.
    Where a 14 year old employé was injured by having his hand caught in the rollers of a machine for printing paper bags, which machine had no foot brake, and was not equipped with a fender, whether defendant had exercised reasonable care in furnishing such machine was for the jury.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1001, 1006, 1008, 1010-1015, 1017-1033, 1036-1042, 1044, 1046-1050: Dec. Dig. <&wkey;>286.]
    2. Master and Servant <&wkey;286 — Tools and Appliances — Custom in Business — Question eor Jury.
    That a machine by the operation of which an employé is injured is such a one as is customarily used by other employers in the same line of business does not necessarily exonerate the employer from liability for injuries; the question whether the machine is reasonably safe being- for the jury.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1001, 1006, 1008, 1010-1015, 1017-1033, 1036-1042, 1044, 1046-1050; Dee. Dig. &wkey;»286.]
    3. Master and Servant t&wkey;264^-lNJURiES— Evidence — Pleadings. ,
    Where a 14 year old employé was injured by having his hand caught in the unprotected rollers of a machine for printing paper bags, evidence of the absence of a foot brake and fender was properly admitted, where plaintiff had charged failure to exercise ordinary care.
    [Ed. Note. — -For other cases, see Master and Servant, Cent. Dig. §§ 861-876; Dec. Dig. <&wkey;> 264.]
    4. Trial &wkey;?194^-lNSTRUCTi0NS — Weight oe Evidence.
    A request to charge directly on the weight of the evidence is properly rejected.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 413, 436, 439-441, 440-454, 456-406; Dec. Dig. <&wkey;>194.]
    5. Trial <&wkey;260 — Instructions—Subject oe Instructions.
    It is no error to refuse special instructions where the substance thereof has been covered by other instructions.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Doc. Dig. &wkey;260.]
    6. Appeal and Error <i&wkey;215 — Preservation oe Exceptions — Instructions.
    Objections to instructions not made at the trial will not be considered on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1309-1314; Dec. Dig. 215.]
    7. Appeal and Error <&wkey;742 — Review—Assignments of Error.
    An assignment of error not followed by a statement showing what was contained in the instruction complained of will not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. <@^742.]
    8. Master and Servant <&wkey;217 — Tools and Appliances — Assumption oe Risk — Appreciation oe Danger.
    Where a 14 year old employé was injured by having his hand caught iu the rollers of an unguarded machine for printing paper bags, the fact that he knew there was no foot brake and no fender thereon did not relieve the employer from negligence, where the boy did not anureciate the danger.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 574-600; Dec. Dig. 217.]
    Appeal from District Court, Harris County; Chas. E. Asbe, Judge.
    Action by R. J. Duffy, for himself and as next friend of Richard Newman Duffy, against the Magnolia Paper Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Hunt, Myer & Teagle, of Houston, for appellant. E. T. Chew, of Houston, for appellee.
   FLY, C. J.

R. J. Duffy, for himself and as next friend for his minor son, Richard Newman Duffy, instituted this suit to recover damages arising from personal injuries inflicted on the latter while he was in the employ of appellant. Appellant pleaded assumed risk and contributory negligence. The cause was tried by jury,' and resulted in a verdict in favor of the appellee for $1,600, and in favor of appellant as to R. J. Duffy. From the judgment rendered on that verdict, appellant has perfected this appeal.

The evidence, showed that appellee, a 14 year old boy, was an employs of appellant, and was engaged in running a machine for the purpose of printing paper bags; that it worked with a lever, and had two long iron rollers which revolved one above the other, the bottom roller having a gripper to catch the bags and draw them between the rollers. Appellee was engaged in feeding the machine with bags, and, while engaged in that duty, the machine began to run irregularly, slowing down, and then racing, when it caught a paper bag held by appellee and drew his left hand between the rollers and crushed his fingers, causing the loss of his middle finger and the disfiguring of his entire hand. The machine was not equipped with a foot brake, but in order to stop it the pulley belt had to be shifted. The machine had no fender or guard to protect the hands of employSs from being caught, although it could have been equipped with such guard or fender without in the least impairing its usefulness. Appellee was not warned of the dangers of the situation, although the machine was dangerous. Appellee was damaged in the sum found by the jury.

The first three assignments of error complain of the action of the court in overruling exceptions to those portions of the petition containing allegations as to the machine not being equipped with a foot brake and fender or guard. The only proposition is:

“An employer is not required to furnish to his employs absolutely safe machinery, or to insure the safety of the employs.”

The proposition seems to be a non sequitur to any exception made to the petition. The pleadings did not demand that the machine should be absolutely safe, and no one contends for any such proposition: Eet the proposition be admitted, and how does it iDrofit appellant? Of course, the authorities cited by appellant hold that it is the duty of the master to use reasonable care and diligence in furnishing safe appliances for the use of his servants, and the issue raised by the pleading was not the duty to furnish an absolutely safe machine, but the duty to use reasonable care to provide such a machine. It was for the jury to say whether ordinary care had been used in furnishing a machine without a foot brake and guard or fender. The mere fact that the machine was one customarily used for such purposes would not, as a matter of law, exonerate appellant from blame.

It is the rule laid down by the Supreme Court of the United States, as well as the Supreme Courts of a number of states, that after it has been shown that the defendant had used the same appliances used by other employers in the same line of business, the question still was open as to whether the particular instrumentality was reasonably safe, and that it is an issue for a jury. Wabash R. R. Co. v. McDaniels, 107 U. S. 454, 2 Sup. Ct. 932, 27 L. Ed. 605; Railway v. Behymer, 189 U. S. 468, 23 Sup. Ct. 622, 47 L. Ed. 905; Going v. Ala. Steel & Wire Co., 141 Ala. 537, 37 South. 784; Martin v. Railway, 94 Cal. 326, 29 Pac. 645; Redfield v. Railway Co., 112 Cal. 220, 43 Pac. 1117; Harvesting Co. v. Burandt, 136 Ill. 170, 26 N. E. 588; Railway v. Morrissey, 177 Ill. 376, 52 N. E. 299; Hosic v. Railway, 75 Iowa, 683, 37 N. W. 963, 9 Am. St. Rep. 518; Roy Lumber Co. v. Donnelly (Ky.) 103 S. W. 255.

Even though instrumentalities are the same as those used by all others in the. same line of business, it is held in Texas that the use of such appliances may he negligence, and it is for the jury to determine whether the use of the machine was negligence or not. Railway v. Evansich, 61 Tex. 3; Railway v. Smith, 87 Tex. 348, 28 S. W. 520; Railway v. Duncan, 88 Tex. 611, 32 S. W. 878; Sincere v. Compress Co., 40 S. W. 326; Kirby Lumber Co. v. Dickerson, 42 Tex. Civ. App. 504, 94 S. W. 153; Lyon v. Bedgood, 54 Tex. Civ. App. 19, 117 S. W. 897; Wirtz v. Railway, 132 S. W. 510; Railway v. Neef, 138 S. W. 1168.

The standard of care exercised by a master is not what other masters do under like circumstances, but, as in all cases, the standard must be the exercise of ordinary care. Proof that an instrumentality is the same used by other masters in the same business may be a circumstance to be considered by the jury in passing upon the question of negligence, but in the final analysis of the matter ordinary care must be the test applied. Labatt, Mast. & Serv. § 947, and authorities cited in footnotes.

In this case the evidence showed that a foot brake and a fender would have rendered the machine used by appellee much safer, and it wa's a pertinent question for the jury to determine whether in the exercise of ordinary care such foot brake and fender should not have been attached to the machine by appellant. A verdict that it was negligent not to supply such appliances was not a requirement that an absolutely safe machine should have been provided, but that in the use of ordinary care appellant would have made the improvement. A charge embodying this theory was approved in the case of Armour v. Morgan, 151 S. W. 861, and, although a writ of error was granted in that case, it was not as to the law in regard to safeguarding the machine, but the notation of 'the Supreme Court is:

“Granted. We think the trial court should have submitted the issue of whether the injury was caused by the act of a fellow servant.”

The petition did not allege that the machine was out of repair, but alleged that the exercise of ordinary care required of appellant to guard the rollers and attach a foot brake, so as to protect unwarned employes of tender ages from injury arising from the operation of the machine. Neither pleadings nor charges required insurance of the safety of employés, but merely the exercise of ordinary care toward children employed about machines.

It follows from what has been said that evidence of the absence of a foot brake and fender was properly admitted, and the fourth, fifth, and seventh assignments of error are overruled. It was not contended that there was a foot brake or fender on the machine, and it could not have injured appellant if the question as to a fender on the machine had been leading. The question was not leading, however.

The witness Henning testified that the unguarded rollers were a menace to any one operating the machine. He qualified as an expert in connection with such machines, and it was not error to permit him to testify that a guard could have been used without impairing the usefulness of the machine. Other testimony to the same effect was presented without objection. The eighth assignment is overruled.

Appellee admitted that he knew that if he put his fingers between the rollers it would injure them. Any reasonable creature would know that, but that did not necessarily carry with it the knowledge, on the part of a child, that his fingers might be drawn in between the rollers. Appellee swore that he was not warned as to that danger and knew nothing about it. Such danger was not apparent to a child. In the case of Krisch v. Richter, 130 S. W. 186, this court held that the evidence showed beyond doubt that a boy between 17 and 18 years of age must have known that it was dangerous to bring his hand wrapped in a rag close to the moving cogs of a machine. Such a case is not made by this evidence. There was nothing in his experience to notify appellee that, while feeding the machine as he had been instructed to do, his fingers would be jerked in between the rollers. The eleventh and twelfth assignments of error are overruled. The question of assumed risk was properly presented to the jury.

The special charge asked by appellant on that subject was directly on the weight of the evidence, and was properly rejected.

Every phase of the case was presented in the charges given by the court, and the court did' not err in refusing the special charges set out in the fourteenth and fifteenth assignments of error. Neither of the assignments is followed by any proper statement. Á charge on assumed risk requested by appellant was given by the court, and it is in no position to complain that the others on the same subject were not given. Railway v. Haney, 94 S. W. 386; Sullivan v. Fant, 160 S. W. 612; Railway v. Harris, 172 S. W. 1129.

The charge of the court on the subject of contributory negligence is assailed in the seventeenth assignment of error, -because it was calculated to lead the .jury to think that in determining the question they should look alone to the testimony offered by appellant. The criticism has no reasonable foundation, but, if it had, it could not be used in this court, because appellant made no such objection to the charge in the lower court.

The objection urged to the charge as to proximate cause shows that, if there was error in the charge, it was one of omission, and appellant made no effort to correct it.' The definition of proximate cause was sufficient, however. The sentence appellant claims ought to have been added to it would have added nothing to its force and appropriateness.

The nineteenth assignment of error is not followed by a statement showing what was contained in the charge of which complaint is made. This court is under no obligation to search out the charge in the record to ascertain its defects. The second proposition has no basis in the assignment upon which to rest. If there were any defects in the charge, they were fully remedied by special charge No. 6, requested by appellant and given by the court.

The twenty-second assignment of error complains of a special charge requested by appellee and given by the court, but does not copy the charge, nor show what was contained in it. However, there was no impropriety in giving it. The greatest objection to it seems to have been its length, with which appellant seems to have been so displeased that it was not copied into the brief.

The twenty-third, twenty-fourth, and twenty-fifth assignments of error are merely repetitions of other assignments herein fully considered, and disposition made of them adversely to appellant.

The main idea in appellant’s brief is that a failure to show that there was some defect in the machine as constructed was a failure to show negligence, and that it cannot be negligence to use a machine in good order such as is customarily used by men in a similar business. This rule does not prevail in many of the courts of the country. As said by Labatt:

“Suitability from the standpoint of effectiveness may or may not be associated with suitability from the standpoint of safety, and it is only the former kind of suitability that the employer usually takes into account. Under such circumstances, it is submitted, there is no sufficient basis upon which to found an inference of law that an employer fulfills his duty when he adopts instrumentalities and methods which are in common use.” Section 947.

As said by tbe Supreme Court of California in tbe case of Redfield v. Railway, 112 Cal. 220, 43 Pac. 1117:

“Custom may originate in motives of economy, or the stress of pecuniary affairs, or in recklessness, and not from considerations based upon the proper discharge of the master’s duty.”

Appellant cannot evade its liability to its minor employes by tbe plea that it furnished a machine that was not out of repair, when a small expenditure of money and labor would have placed tbe machine in such condition as to protect the employés.

Appellant cannot shelter itself from liability by the plea that the 14 year old boy knew that there was no foot brake and no fender. As said by the Supreme Court of the United States in Railway v. Archibald, 170 U. S. 665, 18 Sup. Ct. 777, 42 U. Ed. 1188:

“Indeed, the ultimate result of the argument of the plaintiff in error is to entirely absolve the employer from the duty of endeavoring to supply safe appliances, since it subjects an employe to all risks arising from unsafe ones, if the business be carried on by the employer, and the employs knew, or by diligence would have known, not of the dangers incident to the business, but of the harm possibly to result from the employer’s neglectful methods.”

That language was quoted and approved in Railway v. Turner, 99 Tex. 547, 91 S. W. 562. Appellee could not have known, as it were by intuition, that the machine was dangerous in its unguarded condition, and would probably drag his hand into its jaws and crush it, while he was placing the paper bags between the rollers as he had been instructed to do. He knew the rollers would crush his fingers if he placed the latter between the former, but he did not know that his hand could be forcibly jerked into the machine. His employer knew that, but did not communicate that knowledge to the child employed by it.

Appellant may have used a machine which was suitable for the purposes for which it was used, and it may have been of a type generally in use, and yet, if it was not safe, and by ordinary care could have been made safe, appellant was guilty of negligence. As said by the Supreme Court of Missouri in Schiller v. Kansas City Breweries, 156 Mo. App. 569, 137 S. W. 607:

“The final test of negligence is not usage or custom, but the inflexible rule which fixes reasonable care as the standard by which the conduct of the master to the servant is measured.”

Measured by that standard, the evidence showed an utter disregard for the safety of children of tender years who were employed to manage and control dangerous machinery. The expenditure of a trifle for safeguards, the utterance of a warning word even, might have saved appellee from passing through life with a crippled and disfigured hand. The jury were justified in concluding that the injury was inflicted through the negligence and carelessness of appellant.

The judgment is affirmed.
      <g£5>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: LEYX, J.

text:
    COOPER et al. v. GOLDING.
    (No. 1428.)
    (Court of Civil Appeals of Texas. Texarkana.
    April 15, 1915.
    Rehearing Denied April 29, 1915.)
    T. Principal and Agent <&wkey;79 — Action eor Negligence — Evidence.
    In a principal’s action against its agent to recover damages for losses on his sales of vehicles, sustained through his false and fraudulent reports as to the certain specified purchasers’ credit, wherein the agent admitted the reports and claimed that the information therein was obtained as directed by the principal, and that the information given by him was a true report of what he was directed to get and showed that he was directed by the principal to ask each purchaser as to his property, and report what the purchaser stated, evidence aá to other transactions similar to those sued on was irrelevant and inadmissible; but evidence on the part of the agent that the property statement, given in as report sued on, was in each instance the very statement received by him from the purchasers themselves, was admissible on the issue of fraud and the proper performance of his duty.
    [Ed. Note. — Eor other cases, see Principal and Agent, Cent. Dig. §§ 178-193; Dec. Dig. &wkey; 79.]
    2. Trial <&wkey;350 — Submission oe Issues — Sueeiciency.
    . In an action by a manufacturer against his selling agent for losses sustained by false reports £is to the standing of specified purchasers, in which the agent defended on the ground that he had made the inquiries he was instructed to make and reported the information received, the court submitted to the jury the questions whether defendant, by fraudulent representations, induced plaintiff to make the sales alleged, and whether plaintiff suffered any loss on account of misrepresentations by defendant, and the amount, if any. Held, that the issues were sufficiently submitted, and that it was not necessary to submit for special findings the truth of the statements in, and the loss sustained by plaintiff on, each of the reports involved.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 828-833; Dec. Dig. <&wkey;>350.]
    3. Injunction <@=252 — Liability on Bond-Damages.
    Where plaintiff enjoined collection of a judgment against him in favor of defendant pending the present action, on the ground of defendant’s insolvency, defendant on again obtaining judgment, could not recover on the injunction bond for loss of time in preparing his defense, the statutory penalty covering all the damages allowable on that ground.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 586-598; Dec. Dig. <@=252.]
    Appeal from District Court, Shelby County; W. C. Burford, Judge.
    Action by W. F. Cooper and others against G. L. Golding. Judgment for defendant against plaintiffs, and they appeal.
    Reformed and affirmed.
    The appellants are partners engaged in the manufacture and sale of vehicles. Appellee was employed as a traveling salesman to sell vehicles throughout the country, and, as authorized, made sales on credit of single vehicles to quite a number of people. Appellants sue appellee to recover damages for losses by reason of the sales to 34 purchasers, alleged to have been sustained through false and fraudulent reports made by the agent in the business of his employment respecting the financial worth of said purchasers. And as auxiliary to the action for damages the appellants asked for an order restraining the collection of a certain final personal judgment in favor of appellee until the instant action be determined, upon the alleged ground of insolvency of appellee and his inability otherwise to pay the present demand of appellants. The defendant traversed the allegations upon which plaintiffs claimed they had sustained a loss, and answered that he had discharged his duties with diligence and skill, and that he acted in accordance with the instructions of his employers in making reports, and that the information upon which the reports of financial worth were based had, in each instance, been given him by the proposed purchaser; that he had no information that such statements were not true as given, and that he at no time recommended the making of a sale which was not deemed to be a good moral and financial risk. Defendant further pleaded ratification of his acts by plaintiffs, and that the damages sustained, if any, were occasioned through plaintiffs’ own failure to make good the guaranty given each purchaser respecting the vehicle sold, and further asked for damages for wrongful issuance of the injunction. The case was submitted to the jury on special issues, and upon the answers returned the court rendered judgment for the defendant and against the plaintiffs and the surety on the interlocutory injunction bond for $177.92. The evidence showed that it was the duty of appel-lee, as appellants’ salesman, to contract a sale of a vehicle, have the proposed purchaser sign the contract, and then make out and return to appellants with the contract of sale a statement of the property worth of the purchaser. Appellants furnished a blank statement to be filled out by appellee. The sale in each instance was made subject to approval or rejection by appellants, and the report of the agent was required to advise appellants and enable them to use their discretion in approval or rejection of the sale. Appellants reside in the state of Iowa. Appellee made the sales in Texas of the 34 vehicles embraced in the petition; and made the reports of financial worth of each purchaser. According to the testimony of appellants, they relied exclusively on the reports made and approved the sales, but later discovered that .the reports falsely stated the property worth of the purchasers, and were so knowingly made by appellee, and they suffered loss in consequence of the reports. According to appel-lee’s evidence, he was specially directed by appellants to ask each purchaser of his property worth and report such purchaser’s statement ; that in each instance he did so, and the reports returned truly stated the information as given by each purchaser, and that he had no information contrary to their statements. Appellee further offered evidence tending to show that the appellants knew of the course he pursued in making said reports, and did not rely for information exclusively upon same, and that the failure to collect for the sales was solely due to appellants’ own failure to carry out and comply with a contract of guaranty authorized to be made with each sale. Under the conflict of evidence the jury made the finding of fact that appellee did not make false representations inducing the appellants to sell the vehicles embraced■> in the .pleading, and that appellants did not suffer any loss or damage on account of misrepresentations of appellee. The jury further found the temporary injunction was sued out for delay. In deference to the verdict of the jury we adopt their findings of fact.
    D. M. Short & Sons, of Center, for appellants. Davis & Davis, of Center, for appel-lee.
   LEYX, J.

(after stating the facts as above). Appellants offered evidence of other similar transactions than those sued on, and the court sustained objections made to the evidence. This ruling of the court is made the basis of assignments of error Nos. 1 to 5, inclusive. The court did not, it is thought, err in the ruling. The rulé of evidence respecting system or habit sought - to be invoked is not legally relevant to any issue here. Appellants pleaded specific charges of fraud concerning report of financial worth of purchasers of vehicles which appellee as agent was selling for appellants. Appellee admitted that the reports as returned of the specific'financial worth of the purchasers of the vehicles wore returned by him. He claimed that the data given in the reports sued on were obtained in each instance strictly in accordance with the mode and way directed of him by the appellants, and that the information so given - was true in fact. There was not involved any question of innocence, omission, or mistake in making the reports sued on as they were made, so as to make intent or knowledge issuable. Under the real issues of fact the appellee either deliberately returned particular false reports concerning the specific financial worth of the purchasers, or he truly reported the specific information given to him in each instance by the purchasers themselves, as being the way directed by his employers in which it should be done.

Assignments of error Nos. 6 to 34, inclusive, are based upon the action of the court in allowing appellee to 'testify that the property statement given in each report sued on was in each instance the very statement received by him from the purchasers themselves as to the property owned by'them. The appellee pleaded and offered testimony tending to show that he was specially directed'by appellants, as the mode of obtaining property statements for report to appellants, to ask each purehas•er of his property worth and make report of the same as the purchaser gave it. It was permissible for appellee to prove that in making the reports'he pursued the course directed by his employers, and acted in obedience to their instructions, as bearing upon the issues both of fraud and proper performance of his duties. And further the evidence was, as stated by the trial court, in rebuttal of evidence offered 'by appellants.

Assignments of error Nos. 38 to 73, inclusive, are grouped, and relate to the refusal to submit certain questions to the jury. The proposition for error is that the court failed to submit all issues made by the pleadings and evidence. The appellants seek by their special questions to have a special finding by the jury of the truth of the statements in, and the loss sustained, if any, by appellants on, each of the reports made the basis of suit. The question submitted by the court required the jury to find:

(1) “Whether or not the defendant, Golding, by false representations induced the plaintiff Cooper Manufacturing Company to sell the vehicles set out in plaintiff’s pleadings;” and (2) “whether or not the Cooper Manufacturing Company suffered any loss or damage on account of misrepresentations of Golding, if any, and the amount of same, if any.”

The court’s questions sufficiently embraced and required finding by the jury 'On, it is concluded, all the matters asked by appellants. And it is thought that the petition, as was evidently'so construed by the trial court, alleges that appellants sustained damages only by reason of specific charges of fraudulent statements on the part of the agent, and not 'through any merely negligent disobedience of instructions. Therefore the court’s charge comprehended all the issues.

It is not believed that the court would be warranted in 'holding that there is no evidence, as a matter of law, to support the verdict of the jury, and assignments of error 74 to 77, inclusive,'are overruled.

The 78th assignment of error complains of the recovery of the item of $100 by reason of the suing of 'the injunction. The jury found that the appellee suffered actual damages in the sum of $]00 by reason of the interlocutory injunction sued out in this case. It appears from the evidence that the recovery of this amount is based on loss of tune by tlie appellee in 'preparing his defense to the case. The action was for damages, and the injunction proceeding was merely incidental to the suit. The appellants, not having filed a cross-hill in the first suit, were not precluded from bringing the instant suit to recover damages. And the effect of the injunction, as merely auxiliary to the action for damages, was not to reopen the former suit, but merely to stay'the collection of the former judgment upon the alleged ground of insolvency of the appellee and his inability to pay the instant demand of appellants. Its object was to hold the funds of the former judgment in order to pay off the instant judgment if obtained. It is not necessary to decide the validity of this proceeding. It is, however, determined, as involved in the assignment, that the appellee was not entitled to recover anything on the injunction bond for defending the suit for damages. The statutory penalty covers all the damages allowable in this present proceeding.

The judgment will be reformed so as to deny recovery for the $100, and, as so reformed, will be affirmed. The cost of appeal will be taxed against appellee.
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author: HIGGINS, J.

text:
    CONSOLIDATED KANSAS CITY SMELTING & REFINING CO. v. SCHULTE.

    (No. 440.)
    (Court of Civil Appeals of Texas. El Paso.
    April 15, 1915.
    Rehearing Denied May 13, 1915.)
    1. Negligence <&wkey;l — Definition.
    “Negligence” is a failure to do what a reasonably prudent person would ordinarily have done under the same or similar circumstances, or the doing of what a reasonably prudent person under the same or similar circumstances would not have done.
    [Ed. Note. — jfor other cases, see Negligence, Cent. Dig. § 1; Dec. Dig. <&wkey;>l.
    Eor other definitions, see Words and Phrases, First and Second Series, Negligence.]
    2. Trial <&wkey;273 — Instructions — Time fob Objection.
    An objection not presented to the court before giving of the charge to the jury is waived under Acts 33d Leg. c. 59 (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 1984a, 1954, 1970, 1971, 1973, 1974, 2061), regulating the time and manner of submitting instructions to the jury.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 680-682; Dec. Dig. &wkey;273.j
    3. Master and Servant <&wkey;204^-lNJURY to Employé — Private Carrier — Statute — “Railroad.”
    In an action against an employer for the death of a servant, resulting from failure to equip cars with automatic couplers, where such employer operated a private railroad in its own yards, although the cars, engines, and tracks were smaller than standard gauge, it was a “railroad,” within Rev. St. 1911, art. 6645, providing that, in suit against a person operating a railroad for injuries to a servant caused by negligence, the defense of assumed risk through knowledge of the servant of the defect shall not be valid in certain cases, as where the defect was known to the employer, so that a charge on the assumption of risk was properly refused.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 544-546; Dec. Dig. <&wkey;> 204.
    For other definitions, see Words and Phrases, First and Second Series, Railroad.]
    4. Master and Servant <&wkey;204 — Injury to Servant — Negligence of Employer — “Defect” in Equipment — Private Carrier-Statute.
    In an action against an employer for death of a servant caused by failure of such employer, operator, within its own yards, of a narrow gauge railroad, to equip its cars with automatic couplers, the failure to so, equip was a defect, within Rev. St. 1911, art. 6645, providing that, in suit against a person operating a railroad for injuries to a servant caused by the negligence of such railroad, the defense of assumed risk through knowledge of the servant of the defect shall not be valid where the defect was known to the employer.
    [Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 54L-546; Dec. Dig. 204.
    For other definitions, see Words and Phrases, First and Second Series, Defect.]
    5. Appeal and Error <&wkey;719,—Review—Un-ASSIGNED “EEEOE APPARENT ON FACE OE Recoed.”
    In an action against an employer for death of its servant, error of the court in applying the Employers’ Liability Act April 22, 1908, c. 149, 35 Stat. 65 (U. S. Comp. St. 1913, §§ 8657-8665), was not such “error apparent on the face of the record,” which is fundamental error, as to authorize its consideration when not properly assigned.
    [Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 2968-2982, 3490; Dec. Dig. <&wkey;>719.
    For other definitions, see Words and Phrases, Second Series, Apparent upon the Face of the Record.]
    6. Constitutional Law &wkey;>238 — Mastee AND SEEVANT &wkey;>204^-EQUAL PROTECTION oe Law—Regulation oe Railroads.
    Rev. St. 1911, art. 6645, providing that, in any suit against a person operating a railroad for injuries to a servant caused by negligence, the defense of assumed risk through knowledge of the servant of the defect shall not be valid, where the defect was known to the employer, is not unconstitutional as denying to the employer the equal protection of the laws, or as making an arbitrary classification of employers, based upon no just and proper relation of difference.
    [Ed. Note.—For other cases, see Constitutional Law, Cent. Dig. §§ 688-690, 695, 706-708; Dec. Dig. <§=>238; Master and Servant, Cent. Dig, §§ 544r-546; Dec. Dig. &wkey;204.]
    Appeal from District Court, El Paso County; P. R. Price, Judge.
    Action by Genevieve Schulte against the Consolidated Kansas City Smelting & Refining Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Davis & Goggin, of El Paso, for appellant. John L. Dyer, Frank Feuille, Jr., and A. R. Grambling, all of El Paso, for appellee.

       writ oí error pending in Supreme Court.

   HIGGINS, J.

Appellee, a minor, suing by next friend, brought this suit to recover damages arising out of the death of her father, an employe of appellant. The death of deceased resulted from personal injuries sustained in attempting to couple two 'slag cars of defendants operated upon a line of railroad belonging to appellant.

The court, in its charge, defined negligence, ordinary care, and contributory negligence as follows:

“ ‘Negligence’ is a failure to do what a reasonably prudent person would ordinarily have done under the same or similar circumstances, or in doing what a reasonably prudent person under the same or similar circumstances would not have done.”
“By ‘ordinary care’ is meant such care to avoid injury to another as a person of ordinary prudence would commonly exercise under the same or similar circzimstances.”
“ ‘Contributory negligence,’ in its legal significance, is such an act or omission on the part of the person injured amounting to a want of ordinary care_, as, concurring or co-operating with some negligent act or omission of the defendant, proximately causes or contributes to cause the injury complained of.”

The definition of negligence does not present reversible error. Railway Co. v. Safford, 48 S. W. 1105; rule 62a.

It is urged that the instruction relating to contributory negligence is misleading, in view of the definition given of ordinary care; that, by the instruction that “by ordinary care is meant such care to avoid injury to another as a person of ordinary prudence would commonly exercise under the same or similar circumstances,” the jury would therefore assume that Schulte was not guilty of contributory negligence, unless he failed to use ordinary care to avoid injury to some one else, rather than to himself.

This criticism of the charge was not presented to the court, as required by chapter 59, Acts of 1913, for which reason it is overruled.

Departing from approved definitions is not to be commended. It injects controversies and questions of doubt where none should arise, and, under certain circumstances, the definitions here used might necessitate a reversal.

The proposition urged in support of the fifth and sixth assignments is not germane, for which reason it is not entitled to consideration. Railway Co. v. Miller, 88 S. W. 499; Insurance Co. v. Sadau, 167 S. W. 334; Ford Motor Co. v. Freeman, 168 S. W. 80. If considered, it would be overruled, because it presents the criticism to the definition of contributory negligence given in the court’s charge above noted, and which was waived because not objected to before it was read to the jury. Chapter 5®, Acts of 1913.

The court properly refused to give peremptory instructions in favor of appellant requested upon the theory that deceased, as a matter of law, was guilty of contributory negligence in making the coupling. An inspection of the evidence discloses that this issue was one to be submitted to the jury for its determination.

The negligence of defendant is alleged to have consisted in its failure to equip its cars with automatic couplers. The case was 'submitted upon special issues, and the jury found that it was negligence upon defendant’s part in failing to so equip its cars. The defendant’s railroad was a private carrier operated in its own yards only; the cars, engines, and tracks being much smaller than a standard gauge line of railway. Its equipment and construction was such that it cannot reasonably be contended that it was not operating a railroad. The fact that its cars and locomotives were smaller and track narrower than standard gauge railroads does not alter the fact that in all essential respects it was a railroad. The court did not err in treating the same as a railroad, within the meaning of article 6645, R. S. Rice v. Lewis, 125 S. W. 963; Cunningham v. Neal, 101 Tex. 338, 107 S. W. 539, 15 L. R. A. (N. S.) 479; Lodwick Lbr. Co. v. Taylor, 39 Tex. Civ. App. 302, 87 S. W. 358; Lumber Co. v. Watson, 155 S. W. 179; Kirby Lumber Co. v. Owen, 56 Tex. Civ. App. 370, 120 S. W. 937.

Therefore, under the provisions of the statute quoted, a charge upon assumed risk was properly refused, as the defect .was known to the employer.

It cannot be said that the jury erred in finding that defendant was negligent in failing to equip its cars with automatic couplers. There is an abundance of evidence that it was entirely feasible to do so. A quotation thereof would uselessly incumber the record. The same is true of the contention that there is no evidence to support the finding that this negligence was the proximate cause of Schulte’s injury and death.

What has been said disposes of the thirteenth and fourteenth assignments.

The jury having found that it was negligence on defendant’s part in failing to equip its cars with automatic couplers, and it necessarily knowing that its cars were not so equipped, the deceased therefore did not assume the risk incident to the use of the cars so equipped. The failure to equip with automatic couplers was a defect, within the meaning of article 6645, R. S.

The proposition subjoined to the seventeenth assignment is not germane, but entirely foreign thereto, and the assignment itself is therefore not entitled to consideration. But it is urged the question presented is fundamental in its nature, which requires consideration, though the error was not assigned in the court below. This court can consider only errors assigned and errors in law apparent on face of the record. All others are waived. Article 1612, R. S., as amended by Acts of 1913, p. 276 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1612); article 1607, R. S.; Court of Civil Appeals rule 23; Searcy v. Grant, 90 Tex. 97, 37 S. W. 320; City of Beaumont v. Masterson, 142 S. W. 984; Rice Institute v. Freeman, 145 S. W. 688.

The term “error in law apparent on face of the record” seems to be synonymous with “fundamental error.” Searcy v. Grant, 90 Tex. 97, 37 S. W. 320; Houston Oil Co. v. Kimball, 103 Tex. 94, 122 S. W. 533, 124 S. W. 85.

If it be conceded that the point here made presents an error upon the part of- the court dn applying the provisions of the Employers’ Liability Act, yet it is not such an error as would authorize this court to consider same, unless properly assigned. It does not fairly fall within the meaning of “an error in law apparent on face of the record,” as the term has been construed by our courts. Searcy v. Grant, supra; Wilson v. Johnson, 94 Tex. 272, 60 S. W. 242; Houston Oil Co. v. Kimball, 103 Tex. 94, 122 S. W. 533, 124 S. W. 85; Oar v. Davis, 105 Tex. 479, 151 S. W. 794.

What has heretofore been said regarding the status of appellant’s line as a railroad, within the meaning of the law, disposes of the seventeenth assignment.

The eighteenth assignment raises a constitutional question; it being apparently directed against article 6645, R. S. It is objected that the statute denies to appellant equal protection of the laws and makes an arbitrary classification, based upon no difference bearing a just and proper relation to the attempted classification. We are of the opinion the objection is untenable. Railway Co. v. Foth, 45 Tex. Civ. App. 275, 100 S. W. 175; Railway Co. v. Drew, 140 S. W. 810; Railway Co. v. Blackburn, 155 S. W. 625; Receiver v. Cook, 86 Tex. 634, 26 S. W. 486, 40 Am. St. Rep. 878; Supreme Lodge, etc., v. Johnson, 98 Tex. 1, 81 S. W. 18; Ins. Co. v. Chowning, 86 Tex. 654, 26 S. W. 982, 24 L. R. A. 504; State v. Railway Co., 143 S. W. 223; Campbell v. Cook, 24 S. W. 979; Railway Co. v. Bailey, 53 Tex. Civ. App. 295, 115 S. W. 601; Railway Co. v. Mackey, 127 U. S. 210, 8 Sup. Ct. 1161, 32 L. Ed. 107; Railway Co. v. Ellis, 165 U. S. 150, 17 Sup. Ct. 255, 41 L. Ed. 666; Cotting v. Godard, 183 U. S. 112, 22 Sup. Ct. 30, 46 L. Ed. 92; Railway Co. v. Osborn, 189 U. S. 390, 23 Sup. Ct. 540, 47 L. Ed. 860; 9 Fed. Statutes Ann. pp. 546, 578, §§ 4, 8, authorities there cited.

Affirmed.
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