source: Caselaw Access Project

author: JENKINS, J.

license: Public Domain

text:
    PAIGE v. MENKE.
    (Court of Civil Appeals of Texas. Austin.
    July 5, 1913.)
    Continuance (§ 37) — Motion—Diligence.
    Where a motion for continuance for absence of a witness did not state facts showing the exercise of due diligence to obtain the testimony of the absent witness, nor what, if any, diligence had been used, and also failed to state a single fact expected to be proved by such witness, it was properly denied.
    [Ed. Note. — For other cases, see Continuance, Cent. Dig. §§ 117-121, 127; Dec. Dig. § 37.]
    Appeal from District Court, Waller County; Wells Thompson, Judge.
    Action between Sam K. Paige and C, A. Menke. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    R. E. Tompkins, of Hempstead, for appellant. J. D. Harvey and Keet McDade, both of Hempstead, for appellee.

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

   JENKINS, J.

Appellant assigns as error the action of the court in overruling his motion for a continuance, and also that the judgment is not supported by the evidence.

There was no error in overruling the motion for a continuance. It did not state that appellant had used due diligence to obtain the testimony of the absent witnesses, nor what, if any, diligence he had used. It did not state a single fact that he expected to prove by either of such witnesses.

The evidence is not only sufficient to sustain the judgment, but, under the evidence, no other judgment could have been properly rendered. There are no novel questions of law involved in this case. It would serve no useful purpose to set out and comment on the testimony. There was no conflict in the evidence.

Finding no error of record, the judgment is affirmed.


author: RICE, J.

text:
    CALDWELL v. AUTO SALES & SUPPLY CO.
    (Court of Civil Appeals of Texas. Austin.
    June 25, 1913.)
    1. Bills and Notes (§ 104*) — Defenses—Du-bess.
    In an action upon a check given by defendant to pay for repairs to his automobile, where plaintiffs by unlawfully withholding possession of the machine compelled the giving of a check for a larger amount than that which was really due, their good faith, in enforcing a claim, in fact improper, will not affect defendant’s right to set up duress as a defense.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 242-247; Dec. Dig. § 104.*]
    2. Bailment (§ 18*) — Bailob’s Lien — Waives of Lien. '
    Where plaintiffs who repaired defendant’s automobile voluntarily surrendered possession of it before the repair charges had been paid, their right to a lien under Rev. Civ. St. 1911, arts. 5665, 5666, giving mechanics the right to retain possession of articles repaired until the amount due shall be fully paid off, was waived.
    [Ed. Note. — For other cases, see Bailment, Cent. Dig. §§ 77-79, 81-84; Dec. Dig. § 18.*]
    3. Tbial (§ 203*) — Instbuctions—Issues.
    Where the evidence raises an issue, a requested charge thereon, if proper in form, should be granted.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §,§ 477-479; Dec. Dig. § 203.*]
    4. Bailment (§ 18*) — Bailob’s Lien — Right to Withhold Possession.
    Where plaintiff who repaired an automobile demanded a greater price than that agreed upon, withholding possession until he could compel the payment of such price, his possession was unlawful.
    [Ed. Note. — Eor other cases, see Bailment, Cent. Dig. §§ 77-79, 81-84; Dec. Dig. § 18.]
    5. Teial (§25) — Open and Close — Right to.
    Under district court rule 31, providing that plaintiff shall have the right to open and close, unless the burden of proof of the whole case rests upon the defendant, or unless the defendant shall admit before trial that plaintiff has a good cause of action, except so far as it may be defeated by his affirmative defense, and Rev. Civ. St. 1911, art. 1953, providing that the party having the burden of proof of the whole case shall be entitled to open and conclude, it was not improper for the court to deny defendant the right to open and .close in an action upon a check given by him in payment for repairs on his automobile, even though the only defense was duress, where he did not admit the cause of action until the conclusion of the evidence.
    ■ [Ed. Note. — Eor other cases, see Trial, Cent. Dig. §§ 44-75; Dec. Dig. § 25.]
    Appeal from Travis County Court; R. E. White, Judge.
    Action by the Auto Sales & Supply Company against T. J. Caldwell. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    Caldwell & Caldwell, of Austin, for appellant. Geo. Mendell, Jr., of Austin, for appel-lee.

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

   RICE, J.

Appellant left his automobile with appellee at their shop in San Antonio for repairs; and, according to his contention, it was understood that the charges therefor should not exceed $100. After the machine had been repaired, appellant went to San Antonio, and was allowed to take the same out in charge of a chauffeur for the purpose of testing it. They were out several hours, and returned to the garage, where, according to appellant’s contention, the automobile was unconditionally delivered to him without the payment of the bill for repairs. He took the machine away, and used it about the city during the day; but, owing to the fact that it was about to rain, returned it to the garage for the purpose of leaving it until the shower was over. Later in the day he went to the garage, but was not allowed to take the machine out until he paid appellee for repairs, which appellee claimed amounted to the sum of $196.62, which he at first refused to do. Finally, in order to obtain possession of the automobile, he gave appellee his check on the American National Bank of Austin for said amount, whereupon the machine was delivered to him, and he returned to Austin that night. He, however, stopped payment of said check, and this suit was brought by appellee to enforce payment thereof.

Appellant, after a general denial, relied upon a plea of duress, and also set up the fact that appellee had no legal right to refuse delivery of said machine after having voluntarily and unconditionally surrendered the same to him. There was a jury trial, resulting in a verdict and judgment in behalf of appellee, from which this appeal is prosecuted. Without reviewing the evidence in detail, we think that introduced in behalf of appellant is sufficient to raise the issue of duress, as pleaded by him.

It is urged under the first and second assignments of error that the court erred in submitting this issue to the jury in this; That said charge, in effect, in addition to requiring that in order to find for appellant the jury must not only believe that plaintiff knew that defendant was not indebted to him in the amount of the bill as presented, but likewise that said demand therefor on the part of appellee must be made for the purpose of defrauding defendant; and, further, in telling the jury that if they believed from the evidence that the plaintiff’s claim against the defendant was made in good faith, and in the belief that the same was due the plaintiff from the defendant, then they were instructed that the plaintiff had the right under the statute to hold said automobile until such sum was paid. It is the contention of appellant, with which we agree, that if he was compelled to submit to an unlawful exaction on the part of appellee in order to obtain his machine, and in doing so executed a check for a greater amount than appellee was entitled to, that then appellee could not recover, thereon, irrespective of whether they demanded more than was due thereon for the purpose of defrauding defendant, and irrespective of whether their claim was made in good faith or not. Hackley v. Headley, 45 Mich. 569, 8 N. W. 511; Lamborn v. Dickinson Co. Com’rs, 97 U. S. 181, 24 L. Ed. 928; Taylor v. Hall, 71 Tex. 216, 9 S. W. 141; Oliphant v. Markham, 79 Tex. 548, 15 S. W. 569, 23 Am. St. Rep. 363; Galveston City Co. v. Galveston, 56 Tex. 494; M. K. & T. Ry. Co. v. Carter, 9 Tex. Civ. App. 677, 29 S. W. 575; Ladd v. S. C. P. & M. Co., 53 Tex. 193; Harmony v. Bingham, 12 N. Y. 112, 62 Am. Dec. 142; Wilkerson v. Hood, 65 Mo. App. 491; Glass v. Haygood, 133 Ala. 489, 31 South. 976; Clark & Loftus v. Pearce, 80 Tex. 149, 15 S. W. 787; Davie v. City of Galveston, 16 Tex. Civ. App. 13, 41 S. W. 147.

In Hackley v. Headley, supra, it is said that “duress of goods may exist when one is compelled to submit to an illegal exaction in order to obtain them from one who has them in possession, but refuses to surrender them until such exaction is submitted to.” In Ladd v. S. C. P. & M. Co., supra, the court says: “To entitle the party voluntarily paying money to recover it back on the ground of duress, he must, at the time of such payment, be under the necessity of either then making the payment, or of resorting to the courts to get possession of the property wrongfully detained, or to recover his liberty, or at least to show that there was an apparent necessity for resorting to the courts for one or the other of these purposes.” In Wilkerson v. Hood, supra, it is held, as shown from the syllabus, that when one of the parties to a contract in possession of the property of the other, without lawful right or excuse, refuses to surrender it until a certain contract between them is entered into, and thereupon such other party executes this contract in order to get possession of the property, the contract is obtained by duress; and this though the property could have been recovered by the owner by replevin.

From a review-of the above cases we think it appears that if one, in order to obtain possession of property unlawfully withheld from him, submits to an unlawful exaction, and pays money or executes a cheek in order to obtain possession thereof, that it is immaterial what purpose actuated the party making such demand, and the other party will be relieved in either event, irrespective of such purpose. We think the court erred in giving the charge complained of; and sustain said assignments.

Appellant requested and the court refused to give the following charge: “If you believe from the evidence that previous to the time defendant returned his automobile to the garage of plaintiff on the afternoon of February 9, 1913, and after the work done by plaintiff on said automobile was completed, that plaintiff had unconditionally and voluntarily surrendered possession of said automobile to the defendant, then any further holding of ‘Said automobile by plaintiff for previous charges thereon was illegal and unlawful.” The right on the part of appellee to retain possession of said machine for their charges thereon depends upon articles 5665, 5666, R. S. 1911, and articles 3320, 3321, R. S. 1895. If they had previously voluntarily and unconditionally surrendered possession of the machine to appellant, they lost their lien and were not entitled to hold possession thereof, and their subsequent coming into possession of the machine, under the circumstances above indicated, would not revive their right under the statute. See 25 Cyc. 675, Liens; Gay v. Hardeman, 31 Tex. 245; Burrow v. Fowler, 68 Ark. 178, 56 S. W. 1061; Wenz v. McBride, 20 Colo. 195, 36 Pac. 1105; Hurley v. Epps, 69 Ga. 611; Williamson v. Moore, 10 Idaho, 749, 80 Pac. 227; Smith v. O’Brien, 46 Misc. Rep. 325, 94 N. Y. Supp. 673; Block v. Dowd, 120 N. C. 402, 27 S. E. 129; Holderman v. Manier, 104 Ind. 118, 3 N. E. 811; Tucker v. Taylor, 53 Ind. 93; Nevan v. Roup, 8 Iowa, 207; McDougall v. Crapon, 95 N. C. 292; Kitteridge v. Freeman, 48 Vt. 62.

The facts raised this issue, and it was the duty of the court to have given the charge requested for which reason the third assignment is sustained.

The following charge was requested by appellant and refused: “You are charged that if you believe from the evidence that the demand of plaintiff upon defendant at the time the check was given was excessive, and plaintiff demanded more than was legally due it, and refused to surrender possession of said automobile until said excessive or improper charges were paid, then you are charged that such unlawful holding of said automobile was illegal and unlawful.” The facts raised this issue, and the charge, under the authorities was proper and should have been given.

While the burden of proof on the issue of duress was upon the defendant (see Wilkerson v. Bishop, 47 Tenn. [7 Cold.] 24; Bullard v. Smith, 28 Mont. 387, 72 Pac. 761; Nebraska v. Klee, 70 Neb. 383, 97 N. W. 476; Lee v. Ryder, 1 Kan. App. 293, 41 Pac. 221; Stout v. Judd, 10 Kan. App. 579, 63 Pac. 662) and he would have been entitled, in our judgment to open and conclude, both in introducing his evidence and his argument, if he had made the admission as indicated in rule 31 (142 S.W. xx) before the trial commenced; but if his statement could be regarded as such admission, it was not made until after the conclusion of the evidence. We think the court, under the circumstances, did not err in refusing his request in this respect. See district court rule 31; R. S. 1895, art. 1299; R. S. 1911, art. 1953; Belt v. Raguet, 27 Tex. 471; Smith v. Traders’ Bank, 74 Tex. 541, 12 S. W. 221; Ramsey v. Thomas, 14 Tex. Civ. App. 431, 38 S. W. 259.

The court should not have permitted the witness Kalkurst to testify to the contents of the bill presented to appellant, for the reason that he was not shown to have such knowlege thereof as would have entitled him, under the circumstances disclosed in the bill of exceptions, to testify in regard thereto; for which reason we sustain the several assignments of error of appellant complaining of the admission of his testimony.

For the reasons indicated, the judgment of the court below is reversed, and the cause remanded.

Reversed and remanded.

       Reported in full in the Pacific Reporter; reported as a memorandum decision -without opinion in the Kansas Appeals Reports.


author: HODGES, J.

text:
    HOLLAND v. ASHLEY
    (Court of Civil Appeals of Texas. Texarkana.
    June 26, 1913.)
    1. Covenants (§ 46) — 'Wabbanty—Application— Scope.
    The usual covenants of warranty appearing in a deed apply only to the title conveyed, and do not guarantee the quantity of land.
    [Ed. Note. — Eor other cases, see Covenants, Cent. Dig. § 46; Dec. Dig. § 46.]
    2. Limitation of Actions (§, 39) — Conveyance of Land — Deficiency of Quantity— Recovery of Damages.
    An action against a vendor to recover damages for alleged fraudulent representations as to the quantity of land conveyed was not within the statute providing a two-year limitation for fraud, but was within Rev. St. 1895, art. 3358, prescribing four years as the limitation for all actions not otherwise provided for.
    [Ed. Note. — Eor other cases, see Limitation of Actions, Cent. Dig. §§ 172, 190-211; Dec. Dig. § 39.]
    Appeal from District Court, Collin County; J. M. Pearson, Judge.
    Action by W. C. Holland against J. W. Ashley. Judgment for defendant, dismissing the petition, and plaintiff appeals.
    Reversed and remanded.
    Garnett & Hughston, of McKinney, for appellant. J. R. Gough, of McKinney, for ap-pellee.

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

   HODGES, J.

On the 24th day of December, 1908, the defendant, J. W. Ashley, represented to the plaintiff that he was the owner of four tracts of land; the first containing 116 acres, the second 101 acres, the third 47% acres, and the fourth 2⅛ acres. These tracts were situated in different surveys located in Hunt county, Tex. The plaintiff purchased the land, relying upon the representations that the four tracts mentioned contained in the aggregate 267 acres. On the date above mentioned the defendant, joined by his wife, executed a deed conveying the land, in which instrument it was represented that the four tracts contained an acreage of 267 acres. The deed is attached as an exhibit to the petition and made a part thereof. It is further alleged that a few days prior to December 24th — the exact date plaintiff could not state — the plaintiff and the defendant entered into a written contract for the possession of said land, in which it was stated and substantially represented and guaranteed, both orally and in writing, that the four tracts contained 267 acres; that the plaintiff purchased said land at an agreed consideration of $65 per acre, making a total of $17,355. The plaintiff subsequently surveyed and sold said land, and then ascertained that it contained only 258 acres, instead of 267. The value of the shortage is placed at $585. It is further alleged that the defendant knew that the land was short in acreage, or that, if he did not know it, he could have ascertained that fact by the exercise of ordinary diligence; that the plaintiff did not know of, and. did not discover, the shortage until about the 15th of September, 1911; that his failure to sooner discover that fact was due to the representation of the defendant that the tracts of land contained 267 acres, and his promise to have the .land surveyed for the purpose of verifying his representations, but that on account of the press of business this was not done. The petition concludes with a prayer for judgment for the sum of $585 as the amount of damages sustained.

The deed is in the ordinary form of such conveyances. It describes• four tracts; one for 116 acres, another for 101 acres, the third for 50 acres less 2% acres, and the fourth for 2⅛ acres. Reference is made to other muniments of title contained in the deed records of Hunt county for a more specific description. The deed also contains a general warranty expressed in the usual form. The court sustained a special exception to the petition, on the ground that the cause of action appeared to be barred by the statute of limitation of two years. This is the only error assigned.

It is conceded that if. this statute is applicable this ruling of the court is correct, but that if either of the four-year statutes should govern the ruling is erroneous. It has long been the settled law in this state that the usual covenants of warranty appearing in such conveyances as this apply only to the title conveyed, and do not guarantee the quantity. Daughtrey v. Knolle, 44 Tex. 450; Weir v. McGee, 25 Tex. Sup. 20; Bennett v. Latham, 18 Tex. Civ. App. 403, 45 S. W. 934; Stark v. Homuth, 45 S. W. 761; Barnes v. Lightfoot, 26 Tex. Civ. App. 113, 62 S. W. 564; Webb v. Brown, 2 Posey, Unrep. Cas. 36.

Appellant relies upon certain allegations in his petition as pleading the breach of a written contract of warranty as to the number of acres contained in the land conveyed. We doubt the sufficiency of that pleading to support that construction. When considered in its entirety, together with its exhibit, it is difficult to say that the petition does more than set up the breach of an ordinary contract of purchase, based upon representations of the vendor that the tracts conveyed aggregated 267 acres. But, whether the petition should be construed as setting up the breach of a written warranty as to the acreage or not, we think the court erred in holding that the statute of limitation of two years was applicable. We are of the opinion that the cause of action stated is one that falls within the provisions of article 3358, R. S., which prescribes four yeard as the limitation for all actions not otherwise provided for. Smith v. Fly, 24 Tex. 345, 76 Am. Dec. 109; Blount v. Bleker, 13 Tex. Civ. App. 227, 35 S. W. 863; Daughtrey v. Knolle, supra.

The appellee insists that the cause of action stated is in legal effect a mere claim for damages founded upon fraud and deceit, and cites the case of Gordon v. Rhodes & Daniels, 102 Tex. 300, 116 S. W. 40, in support of the contention that two years is the limit. In that case the complaining party had been induced to purchase land which he claimed was worth much less than the price he paid for it. He alleged that he had been deceived by the false representations of the vendor as to the quality of the land and its location with reference to overflows. In answering the certified question propounded, the Supreme Court held that the cause of action there staled was a debt within the meaning of the statutes which fix the limitation for actions of that class not evidenced by any contract in writing at two years. That suit was one exclusively for damages, as such, resulting from the perpetration of a deception which caused the purchaser an injury. In other words, he alleged that a fraud was practiced which resulted in his financial loss. In such actions the injured party recovers only that which he has lost, not what he might have gained had the representations been true. George v. Hesse, 100 Tex. 44, 93 S. W. 107, 8 L. R. A. (N. S.) 804, 123 Am. St. Rep. 772, 15 Ann. Cas. 456. This suit is in effect an action to recover back a part of the purchase price paid for the land, upon the ground that the money was procured by fraud on the part of the vendor and a mistake on the part of the purchaser as to the number of acres contained in the field notes of the land purchased. The purchaser paid no more than he agreed to pay, and received a good title to all the land described in his deed. Consequently he cannot claim that there has been a breach of the contract. But according to his allegations he was induced by the fraudulent representations of his vendor to agree to pay for a greater number of acres than be obtained a title to. It is true he may be classed as the victim of a fraud, if the averments of his petition be correct; but in order to be made whole he must be relieved from the terms of his written agreement. His contract, of purchase must be constructively reformed, so as to express the true intent of the parties.

In the case of Conn v. Hagan, 93 Tex. 334, 55 S. W. 323, our Supreme Court, quoting from Mr. Pomeroy, uses this language; “Where there has’ been a mistake of one party, accompanied by fraud or other inequitable conduct of the remaining party, the instrument may be made to conform to the agreement or transaction entered into according to the intention of the parties.” In Smith v. Fly, Justice Wheeler, in discussing the remedy for shortage in acreage, says: “The plaintiffs’ case is one where the remedy is for equitable relief, upon the ground of mistake.” The facts of that case are very similar to those here involved, and the court applied the law of limitation that governed suits in law for the recovery of money paid by mistake. But that was previous to the enactment of the present statute covering generally all actions not otherwise provided for. The court seems to have followed the rule usually observed in courts of equity, in the absence of any express statutory limitation, and adopted by analogy the period of limitation applicable to similar actions at law. There is little doubt that the provisions of article 3358 would have been applied in that case, had they been in force. In Blount v. Bleker, supra, Justice Williams, in discussing the same question, says: “But if the action were regarded simply as an appeal to equity to recover, on account of gross mistake, for a material deficiency in the quantity of land, we do not think the two-year statute would apply.” This decision is referred to in the case of Gordon v. Rhodes & Daniels by the same distinguished judge, who was then a member of the Supreme Court; but it is not overruled nor criticised in a way to indicate disapproval of the ruling made upon the facts there involved.

It appearing from the face of the petition that this suit was filed within less than four years from the time the cause of action accrued, the court erred in sustaining the exception and in dismissing the cause.

The judgment is therefore reversed, and the cause remanded.


text:
    STEWART v. WESTERN UNION TELEGRAPH CO.
    (Court of Civil Appeals of Texas. Austin.
    July 5, 1913.)
    1. TELEGRAPHS AMD TELEPHONES (§ 37)— Telegram — Delivery.
    Where three telegrams were delivered to a telegraph company, two addressed to “J. C. Stewart, Bernice, La.,” and the other to “J. C. Stewart, Junction City, Ark.,” the contract was to deliver the telegrams to J. C. Stewart at those places, and the company was not required to deliver the telegrams when, at the time, the addressee was stopping in the country six miles from Bernice, La., and ten miles from Junction City, Ark.
    [Ed. Note. — For other cases,' see Telegraphs and Telephones, Cent. Dig. §§ 23, 24, 29, 30, 32; Dee. Dig. § 37.]
    2. Evidence (§ 413) — «Parol Evidence — Telegram.
    Where a telegram was addressed “to Calvin Stewart, Bernice, La., care Frank Johnson, phone,” it does not contradict the telegram to show, by parol testimony, that the company accepted it and undertook to deliver it, by telephoning same from its office at Bernice to the addressee at the residence of Frank Johnson.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1855-1857, 1859, 1860; Dec. Dig. § 413.]
    3. Evidence (§ 413) — Parol Evidence — Telegram.
    If the word “phone” had not been written in the face of the telegram, it could have been proved that the company’s agent agreed, for a valuable consideration, to deliver the message by telephone from its office at Bernice, La., to the addressee.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1855-1857, 1859, 1860; Dec. Dig. § 413.]
    Appeal from District Court, Sterling County; J. W. Timmins, Judge.
    Action by J. C. Stewart against the Western Union Telegraph Company. From a .judgment in favor of defendant, plaintiff appeals.
    Reversed.
    E. R. Yellott, of Lockhart, and Dubois & Loveland, of San Angelo, for appellant Ed J. Hamner, of Sweetwater, and Geo. H. Fear-ons, of New York City, for appellee.

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

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

   JENKINS, J.

This is a suit to recover damages by reason of alleged failure of ap-pellee to deliver certain telegrams to appellant. A general and also several special demurrers were sustained by the court, and appellant declining to amend, the suit was dismissed.

It is alleged that appellant’s father died at Sterling City on December 27, 1911, and that on that day appellant’s brother-Roy delivered to appellee two telegrams at Sterling, Tex., one directed to appellant at Bernice, La., and one to him at Junction City, Ark., each of said telegrams reading; “Father died this morning, come at once.” Also that on the same day appellant’s brother John delivered to appellee a telegram at Snyder, Tex., directed to appellant at Bernice, La., which read: “Father died this morning, come at once to Sterling.” It is alleged in appellant’s petition that at the time said telegrams were sent he was stopping with Frank Johnson, who lived in the country, six miles from Bernice, La., and ten miles from Junction City, Ark. The court did not err in sustaining appellee’s exceptions to the petition in so far as it related to these three telegrams. The petition alleges that appellee undertook to transmit two of these telegrams to Bernice, La., and one of them to Junction City, Ark. It is not alleged that it did not promptly do so. The contract as alleged was to deliver these telegrams to appellant at those places; but, as the petition shows that appellant was not then at either of these places, but was Six miles from one and ten miles from the other, appellee was not required to deliver said telegrams to appellant at the place where he then was. Telegraph Co. v. Swearingen, 95 Tex. 420, 67 S. W. 767; Telegraph Co. v. Shockley, 57 Tex. Civ. App. 30, 122 S. W. 945; Telegraph Co. v. Byrd, 34 Tex. Civ. App. 594, 79 S. W. 40.

Appellant alleged that a fourth telegram was sent to him by his brother John, which read as follows: “To Calvin Stewart, Bernice, La., care Frank Johnson, phone: Father died this morning, come at once to Sterling City.” Appellant alleges that at the time said telegram was sent he paid all charges demanded by the agent of appellee for the transmission and delivery of same, and that appellee accepted the same, and undertook to deliver it and to phone same to Frank Johnson, from either Junction City, Ark., or Bernice, La., that Frank Johnson was well known at each of said places, and had phone connections therewith, and that the failure to phone said message to Frank Johnson was negligence. There are other necessary allegations, which it is not necessary to here set out. Appellee excepted to the allegations with reference to phoning said telegram as an attempt to vary the written contract, as evidenced by said telegram set out in hsec verba, by oral testimony. We think the court committed error in sustaining this exception. This allegation did not contradict the telegram, which by the use of the word “phone” contained a direction to phone said telegram, either to Frank Johnson, or to appellant at the residence or place of business of Frank Johnson. If the word “phone” had not been written in the face of the telegram, it would nevertheless have been permissible to prove that appellee’s agent, for a valuable consideration, agreed to phone said telegram from its office at Bernice, La., to appellant at Frank Johnson’s residence, or to' said Johnson, and such evidence would not have been in contradiction of the telegram.

For the error of the court in sustaining the demurrer last above referred to, the judgment herein is reversed, and the cause remanded.

Reversed and remanded.


author: KEY, C. J.

text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. PITKIN.
    (Court of Civil Appeals of Texas. Austin.
    May 7, 1913.
    Rehearing Denied June 11, 1913.)
    1. Continuance (§§ 24, 26*) — Absent Witnesses— Ground fob Continuance.
    Defendant cannot obtain a continuance on the ground of the absence of material witnesses, where it appeared that other witnesses could testify to the same fact and that due diligence had not been used.
    [Eld. Note. — For other cases, see Continuance, Cent. Dig. §§ 72, 74-93; Dec. Dig. .§§ 24, 26.*]
    2. Carriers (§ 321*) — Carriage of Passengers — Actions—Instructions.
    In a personal injury action by a passenger, where the evidence merely showed that he refused to allow the railway company’s doctor to amputate his arm, and there was no testimony that any of his injuries resulted from malpractice, a charge that in assessing plaintiff’s damages he should be allowed such a sum of money as will fairly compensate him for the injuries that he sustained as the proximate result of defendant’s negligence is not erroneous in permitting an award of damages for injuries not received from defendant’s negligence.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1247, 1326-1336, 1343; Dec. Dig. § 321.*]

      3. Trial (§ 260) — Instructions—Refusal.
    The refusal of special charges covered by the charge given is proper.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.]
    4. Damages (§ 132) — Personal Injuries— Measure of Damages.
    An allowance of $12,500 to a passenger for personal injuries, which permanently incapacitated one arm and caused the bones of 'his ribs to press upon one lung, predisposing it to disease, is not excessive, where he had been a strong healthy man 33 years of age, accustomed to earn his living by manual labor.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 372-385, 396; Dec. Dig.' § 132.]
    5. Costs (§ 260) — Vexatious Appeal — Damages.
    Merely because the questions presented by an appeal were not difficult and the appellate court believed that appellant’s counsel did not have confidence in some of the assignments will not authorize an imposition of damages for vexatious appeal.
    [Ed. Note. — For other cases, see Costs, Cent. Dig. §§ 983-996, 1002, 1003; Dec. Dig. § 260.*]
    Appeal from District Court, Bell County; John D. Robinson, Judge.
    Action by Orson Pitkin against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Alexander S. Coke and A. H. McKnight, both of Dallas, and Tyler, Hubbard & Tyler, of Belton, for appellant. Winbourn Pearce, of Temple, and A. L. Curtis, of Belton, for appellee.

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

   KEY, C. J.

Appellee brought this suit for damages caused by personal injuries sustained by him while riding as a passenger on appellant’s road; the coach in which he was riding having been derailed and thrown from the track. It is not necessary to make any further statement as to the pleadings of either party. There was a jury trial, which resulted in a verdict and judgment for the plaintiff for $12,500, to reverse which this appeal is prosecuted.

It is virtually conceded in appellant’s brief that the evidence was sufficient to warrant a verdict for appellee, and the only complaint as to the verdict is that it is excessive.

The first assignment of error complains because the trial court overruled appellant’s application for a continuance. Authorities cited by counsel for appellee show that the application failed to show proper' diligence, and, besides, nearly if not all the facts which it is claimed could have been proved by the absent witness were proved by the plaintiff and other witnesses. Hence we overrule that assignment.

The second, third, fourth, fifth, sixth, seventh, and eighth assignments complain of the action of the court in overruling objections to certain testimony. The questions presented by the assignments referred to are neither new, novel, nor difficult. The evidence complained of was admissible, and counsel for appellant have cited no authority in support of the objections urged against it In stating the measure of damages, the court instructed the jury, in part, as follows: “If you find for plaintiff, you will say so by your verdict, and in assessing his damages you will allow him such sum of money as if paid in cash in hand at this time will fairly and justly compensate him for the injuries, if any, that the evidence in the case shows that he has sustained as a direct and proximate-result of the defendant’s negligence, if any,” etc. The objection is that the language of the charge quoted did not restrict appellee’s-right to recover to the injuries alleged in. his petition and permitted the jury to award him damages for any other injuries shown by the evidence and resulting from appellant’s negligence. Taking the entire charge-together, we do not think it is susceptible of the construction urged and are satisfied that the jury was not misled thereby. As tending to show that appellee may have sustained injury from another source, the statement of testimony under this assignment is that ap-pellee testified that Dr. Barton took him to-the King’s Daughters Hospital after the wreck, and that when they went to operate on him he refused to get on the operating table if they were going to cut off his arm, and he referred to Dr. Barton as the Katy surgeon. His" arm was not amputated, and .the testimony referred to does not tend to-show that any of his injuries resulted from malpractice or improper or unskillful treatment by Dr. Barton or any other surgeon; and, for the reasons stated, the assignment complaining of that paragraph of the charge is overruled.

The tenth and eleventh assignments complain because the trial' court refused to give two special charges requested by appellant. The jury had already been properly and sufficiently instructed on the subjects covered by the refused charges, and therefore no error was committed in the particulars referred to.

The twelfth and last assignment assails the verdict as being excessive. The evidence was sufficient to show that at the time of the-injury appellee was a strong, healthy man, 33 years of age; that he had no profession or avocation by which he could earn a livelihood except by manual labor; he had made his own living for 12 years by doing farm work, railroad work, work on a ranch, etc. As a result of his injuries he has lost the use of one of his arms; he is permanently injured in one shoulder and three ribs; and the latter injury is such that the broken bones of the ribs press on one lung, thereby causing irritation and inflammation and predisposing that lung to disease. It was shown that he had suffered a great deal of physical pain; that the injuries referred to were permanent; and that he would probably suffer a great deal of pain in the future. On this state of facts we hold that the verdict is not excessive. Railway Co. v. Toliver, 37 Tex. Civ. App. 437, 84 S. W. 375; Railway v. Garber, 51 Tex. Civ. App. 70, 111 S. W. 227; Railway v. Motwiller, 101 Tex. 515, 109 S. W. 918.

This disposes of all the questions presented in appellant’s brief and resfilts in an affirmance of the judgment.

In appellee’s brief it is suggested that the appeal is for delay and appellee asks that we exercise the power conferred by statute and assess 10 per cent, damages for the. reason, so it is claimed, that it.is apparent that the appeal is prosecuted for delay only. While we have found no difficulty in deciding the questions presented, and while we may not believe that counsel for appellant have confidence in some of the assignments presented in their brief, and very little in others, still we are not prepared to hold that the appeal has been prosecuted for delay only, and therefore we decline to grant ap-pellee’s request for damages.

Judgment affirmed.


author: WILLSON, C. J.

text:
    PARIS & G. N. R. CO. et al. v. GERMANY.
    (Court of Civil Appeals of Texas. Texarkana.
    June 20, 1913.
    On Motion for Rehearing, July 3, 1913.)
    Appeal and Error (§ 1170) — Harmless Error — Instructions.
    Where, in an action for injuries to a pas-sengex-, the court erred in eliminating absence of contributory negligence from an instruction stating the facts necessary to be found before the jury could find for plaintiff, and also in not limiting plaintiff’s recovery for physicians’ services to the sum claimed therefor in the petition, but the court could not say that such errors were reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case, the errors were harmless under Civil Appeals Rule 62A (149 S. W. x), providing that a reversal shall not be had for error of law unless the appellate court is of the opinion that the error amounted to such a denial of appellants’ rights as was reasonably calculated and probably did cause the rendition of an improper judgment.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4032, 4066, 4075, 4098, 4101, 4454, 4540-4545; Dec. Dig. § 1170.]
    Appeal from District Court, Lamar County; A. P. Dehoney, Judge.
    Action by Rancem Germany against the Paris & Great Northern Railroad Company .and others. Judgment for plaintiff, and defendants appeal.
    Affirmed on rehearing.
    Wright & Patrick, of Paris, for appellants. Birmingham & Calvin and Moore & Hardison, iboth of Paris, for appellee.

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

   WILLSON, C. J.

Appellee, a negro, was a passenger on one of appellants’ trains .from Grant, Okl., to Paris, Tex. In his petition he alleged that appellants negligently took more passengers on the train than they could safely carry; that he could not get inside the coach to which he was assigned and had to stand in the vestibule of the car; that just before the train reached appellants’ depot in Paris, and while the train was in motion, the porter thereon negligently called to the passengers to alight therefrom; that thereupon the passengers began to crowd one another in order to get off the train; and that he was .“forced [quoting] by the said passengers from the vestibule and thrown from said car while said train was in motion, and that when he fell from said car his right leg was caught under the wheels of said train and crushed to such an extent that the same had to be amputated just below the knee.” The answer of appellants consisted of a general denial and a plea of contributory negligence on the part of appellee in that he voluntarily left the inside of the car and went onto the platform or steps thereof and negligently attempted, while the same was in motion, to alight therefrom, or negligently permitted himself to be shoved off same by other passengers while the car was in motion. The appeal is from a judgment for $3,500 in favor of appellee.

The court instructed the jury as follows: “If you believe from a preponderance of the evidence that at the time plaintiff boarded the train at Grant, Okl., the defendants, or either of them, had sold tickets to more passengers than could be safely carried in the car or cars in said train provided for negro. passengers, and that plaintiff was unable to get inside the ear or to obtain a seat or place to stand therein on account of the crowded condition, if it was crowded, and had to stand on the platform in the vestibule, and that when the train reached Paris and just before it came to a stop the train porter announced Paris and opened the vestibule in which plaintiff was standing, and that the passengers in their efforts to alight from the train, by reason of its crowded condition, if it was crowded, pushed against plaintiff and caused him to fall or jump from the train while it was in motion,' and this was negligence on defendants’ part, as that term is above explained, and that as a proximate result thereof plaintiff was injured and damaged as alleged in his petition, you will find for the plaintiff and assess his damages according to the rule hereinafter given you; and, unless you do so find, you will find for the defendants.”

We think the instruction was erroneous in that it authorized the jury to find for ap-pellee without reference to whether he had been guilty of contributory negligence or not. However negligent appellants may have been, appellee was not entitled to recover if he himself had been guilty of negligence which proximately contributed to cause the accident resulting in the injury he suffered. Railway Co. v. Samuels, 103 Tex. 54, 123 S. W. 123; Railway Co. v. Allbright, 7 Tex. Civ. App. 21, 26 S. W. 251. We do not think the error was cured by the instruction following the one set out, in which the court told the jury to find for appellant if they believed appellee was guilty of contributory negligence in the particulars recited in the instruction. The effect of the instructions was to leave the jury without direction what to do if they believed both appellants and appellee were guilty of negligence which was a proximate cause of the accident. The jury should have been told to find for appellant in that .event.

In his petition appellee alleged that as a result of the injury to his leg it became necessary for him to have it amputated, and that he was “obliged to pay and become liaable to pay for said operation, for medicine and medical treatment, the sum of $200, which sum was reasonable and just to his said physicians and surgeons.” It appeared from the testimony that Drs. MeCuistion and Lewis and a negro doctor named Etter amputated appellee’s leg, and that Etter there-afterwards for a few days, and Lewis for 60 or more days, treated him. It was shown that the reasonable value of Dr. Lewis’ services was $120, but the value of the services rendered by Dr. MeCuistion and by Dr. Etter was not shown. In his charge on the measure of damages the court told the jury if they found for appellee to allow him such sum as would reasonably compensate him for the injury he had suffered, and that in arriving at the sum they should consider, among other things, “the reasonable value of the services of a physician in attending him and treating his injuries.” Appellee was not entitled to recover for services of physicians a sum exceeding that claimed in his petition. The jury may have concluded that the services of Dr. MeCuistion and Dr. Etter were worth reasonably as much or more than the services rendered by Dr. Lewis and have construed the instruction as authorizing them to find on account of services rendered by the three physicians a sum in excess of the $200 claimed by appellee. If they so understood the instruction and so found, to the extent at least of the sum exceeding $200 included in the judgment on account of physicians’ services it is erroneous. It is clear, we think, that the instruction, considered with reference to the record, was misleading and therefore erroneous. Railway Co. v. Ison, 37 Tex. Civ. App. 219, 83 S. W. 408; Railway Co. v. Green, 48 Tex. Civ. App. 242, 106 S. W. 464.

The assignments in which appellants urge other reasons why they think the judgment should be reversed are overruled, as we do not agree that either of them presents reversible error. But, for errors in the instructions specified above, the judgment is reversed, and the cause is remanded for a new trial.

On Motion for Rehearing.

Having again considered the record, and with reference, especially, to rule 62a for the government of Courts of Civil Appeals (149 S. W. x), we have concluded that the motion should be granted, and that the judgment of the court below, instead of being reversed, should be affirmed. In the rule referred to the Supreme Court declares that “no judgment shall be reversed on appeal and a new trial ordered in any cause on the ground that the trial court has committed an error of law in the course of the trial, unless the appellate court shall be of the opinion that the error complained of amounted to such a denial of the rights of the appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case.” We are not of that opinion. On the contrary, we think it extremely improbable that, the errors for which we reversed the judgment caused the jury to render a verdict different from the one they otherwise would have rendered. Therefore, to give effect to the rule, we grant the motion, will set aside the judgment rendered reversing the judgment of the court below, and instead will affirm the judgment of that court


author: McMEANS, J.

text:
    GAUPEL v. LAKESIDE SUGAR REFINING CO. (RAYNOR, Intervener).
    (Court of Civil Appeals of Texas. Galveston.
    June 25, 1913.
    Rehearing Denied July 1, 1913.)
    Corporations (§ 566) — Receivership Proceedings — Priority of Claims — “Mortgage Action.”
    Under Rev. Civ. St. 1911, art. 2152, providing that all claims or causes of action when determined, existing against any corporation at the time of the appointment of a receiver, shall be paid out of its earnings, to the exclusion of the mortgage action, and be a lien upon such earnings, the term “mortgage action” does not merely mean a mortgage, but relates to the action whereby a mortgagee secures the appointment of a receiver, and hence the mortgagees, other than the one upon whose application a receiver is appointed, are entitled to share in the earnings of the receivership, so that they stand on the same footing as the holder of an unsecured claim, neither being entitled to priority; and hence an order giving a priority to an unsecured claim was reversible error.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2283-2286; Dec. Dig. § 566.]
    Appeal from District Court, Colorado County ; M. Kennon, Judge.
    Action by H. J. Gaupel against tbe Lakeside Sugar Refining Company, in which H. W. Raynor intervened. Judgment for intervener, and George Herder, appointed as receiver in the action, appeals.
    Reversed and remanded.
    W. L. Adkins, of Columbus, for appellant. Townsend, Quin & Townsend, of Columbus, for appellee.

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

   McMEANS, J.

In the suit of H. J. Gaupel against the Lakeside Sugar Refining Company, George Herder was, by the district court of Colorado county, appointed receiver of the defendant company, and duly qualified. H. W. Raynor, holding an unsecured claim against the defendant company for $1,500 for services rendered as general manager of said company for the three months next preceding the appointment and qualification of the receiver, intervened in said suit, and prayed that his claim be allowed and approved, and that he be given a preference lien on all the moneys and income coming into the hands of the receiver, and that the receiver be directed to pay said claim. The intervention was resisted by the receiver who appeared and answered by general demurrer and general denial. The court after hearing the evidence rendered judgment in favor of inter-vener, establishing his debt as a preference claim, and directing the receiver to pay the same out of the earnings of the property in his hands in the due course of administration next after payment of all claims mentioned in article 2135, Revised Statutes 1911, and all receiver’s certificates theretofore issued under the orders of the court. Prom this judgment the receiver has appealed.

By his first, second, and third assignments of error appellant complains that (1) the court erred in. establishing intervener’s claim as a preferred claim over mortgage claims due by the Lakeside Sugar Refining Company out of the earnings of the property in the receiver’s hands; (2) in establishing intervener’s claim as a preference claim over all claims other than those mentioned in article 2135, Revised Statutes 1911; and (3) in establishing said claim as a preference over unsecured creditors, other than mentioned in said article 2135.

The facts are undisputed. The receivership was initiated upon the petition of H. J. Gaupel, who sued the Lakeside Sugar Refining Company on an unsecured claim for $5,0Q0. The validity of the debt of $1,500 due Raynor, the intervener, by the Lakeside Sugar Refining Company is not questioned. It is also undisputed that there were and now are a large number of. debts due by the Lakeside Sugar Refining Company secured by mortgages which were duly filed in the county clerk’s office of Colorado county before the claims of intervener accrued. The property of the Lakeside Refining Company consists of a sugar refinery and also a large plantation upon which cotton and corn are grown; and all this property is now in the hands of, and being operated by, the receiver.

The question presented for our determination, and the only one insisted upon by appellant, is whether Raynor’s claim is entitled to a preference over claims secured by mortgage. This question calls for construction of article 2152, Revised Statutes 1911 (article 1490, Revised Statutes 1895), which reads as follows: “Article 2152. All judgments, claims, or causes of. action when determined, existing against any corporation at the time of the appointment of a receiver, shall be paid out of the earnings of such corporation while in the hands of the receiver, to the exclusion of the mortgage action; and the same shall be a lien on such earnings.”

This article was construed by our Supreme Court in First National Bank v. J. I. Campbell & Co., 140 S. W. 430. In that ease the J. I. Campbell Company was placed in the hands of a receiver in connection with the receivership granted of the business of other corporations, upon the application of unsecured creditors and stockholders of the several concerns. Some time after this the First National Bank of Houston intervened in the case, setting up certain indebtedness, and seeking to foreclose a mortgage on a part of the property involved in the receivership. On appeal touching this matter, the Court of Civil Appeals held, in effect, that as against the debtor the bank was entitled to a foreclosure of its mortgage, and that as to any sum which might remain unpaid it should share in the corpus of the estate remaining as any other unsecured creditor, but denied its right to participate with the unsecured creditors in the earnings. 133 S. W. 311. It was upon this holding by the Court of Civil Appeals that the Supreme Court granted a writ of error; and in determining the question held, that under the article of the statute quoted the term “mortgage action” does not merely mean a mortgage, but relates to the action whereby a mortgagee secures the appointment of a receiver; and hence that a mortgagee, other than the one upon whose application a receiver is appointed, is entitled to share in the earnings of the receivership. This decision is binding upon us, and practically settles the question under consideration adversely to the judgment of the trial court; for if the creditors of the corporation holding debts against it, secured by mortgage, are entitled to payment out of the earnings, they stand on the same footing as the appellee with reference to his unsecured claim, and therefore neither is entitled to preference or priority of payment over the other.

The concluding paragraph of the decree rendered in the district court is as follows: “But it is further ordered that if there be other claims established against defendant, the Lakeside Sugar Refining Company, and such be classified as preferred claims, and to be entitled to priority of payment out of the net earnings of said properties in the same class as that of intervener’s, then it is ordered that all claims of such class shall be paid from said fund in proportion to the amount of said claims.”

Evidently the court meant by the expression, “in the same class as that of intervener’s” claims, that were unsecured, and to exclude from participation the secured claims. This is the construction placed upon the paragraph by the receiver, for he so complains not only in this court, but in his motion for a new trial in the court below, and it is this construction that the appellee places upon it, for he insists in this court that he is entitled to the preference given him by the court’s decree over the secured creditor. If this is what the court meant, then, under the decision of the Supreme Court above referred to, the decree is clearly erroneous. Since the secured claims are entitled equally with ap-pellee’s and other unsecured claims to payment out of the net earnings of the receivership in proportion to the amount of all such claims, the giving of a preference to the claim of appellee was such error as to require that the judgment be reversed and the cause remanded, for further proceedings in accordance with this opinion.

Reversed and remanded.


text:
    AUSTIN ST. RY. CO. v. HEFLIN et al.
    (Court of Civil Appeals of Texas. Austin.
    May 21, 1913.
    Rehearing Denied June 25, 1913.)
    Street Railroads (§ 118) — 'Use op Streets— Collisions with Veiiici.es — Instructions —Contributory Negligence.
    Where, in an action for injuries to an automobile, struck by a street car, there was evidence that the operator of the automobile was guilty of contributory negligence, the street railway company, relying on the defense of contributory negligence, was entitled to a specific charge that contributory negligence was a complete defense, though the motorman was guilty of negligence.
    [Ed. Note. — For other cases, see Street Railroads, Cent. Dig. §§, 258-269; Dec. Dig. § 118.]
    Appeal from Travis County Court; R. E. White, Judge.
    Action by Robert Heflin and another against the Austin Street Railway Company. From a judgment for plaintiffs, defendant appeals.
    Reversed and remanded.
    Cochran & White and Irelan Graves, all of Austin, for appellant. McGregor & Gaines, of Austin, for appellees.

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

   KEY, C. J.

Robert Heflin and Dan Crad-dock were the owners of and operating for hire an automobile, which was kept in a garage on West Sixth street in the city of Austin. The Austin Street Railway Company was operating a street car line along Sixth street in front of the garage. On a certain day in January, 1912, at about 8 o’clock in the morning, Frank Anglin, who was employed by Heflin and Crdddock to run the automobile, brought the same out of the garage, with the intention of crossing the street car track and then turning west on Sixth street; and, while he was attempting to make the crossing referred to, a street car, going east, ran into and injured the automobile, and Heflin and Craddock brought this suit against the street railway company to recover damages. There was a jury trial, and from a verdict and judgment in favor of the plaintiffs, the defendant prosecutes this appeal.

Counsel for appellant vigorously assail the verdict for two reasons — one being that the testimony was insufficient to warrant a finding that the motorman in charge of the street car was guilty of negligence, and the other being that the uncontradicted testimony showed that Anglin, the driver of the automobile, was guilty of contributory negligence. The latter testified that he failed to see the approaching street ear on account of an intervening automobile standing in the street to the left of the entrance to the garage, and said that when he passed beyond the automobile referred to, and got in a position where he could see the approaching street car, the front wheels of his automobile were practically on the street ear track, and therefore he put on speed and veered to the right, but, notwithstanding his efforts to escape, the street car struck the rear part of the automobile and injured the same. It was shown by other testimony, and by Anglin also, that the approach to the door of the garage was so constructed as that he could easily have turned to the right and gone far enough to have obtained a full view of the street car track, both east and west, before undertaking to cross it; and therefore, if the motorman in charge of the street car was guilty of negligence, it is difficult to perceive why Anglin, the driver of the automobile, was not guilty of contributory negligence, inasmuch as he knew that street cars passed in front of the garage every few minutes. However, we doubt if it should be held, as matter of law, that Anglin was guilty of contributory negligence; and, as other grounds for reversal are shown, we do not care to say anything more concerning the verdict.

Several assignments are addressed, to the court’s charge, but we find no affirmative error in it, except that pointed out in the seventh assignment, which complains of the seventh paragraph of the charge, because it instructed the jury, if they found the substance of the facts alleged in the plaintiffs’ petition, to return a verdict for the plaintiffs; the objection being that all the facts referred to might exist, and yet, if the plaintiffs’ agent and servant, Anglin, was guilty of contributory negligence, they would not be entitled to recover. The charge referred to was given as a separate and distinct paragraph, while in the tenth and eleventh paragraphs the jury were instructed, if they found that Anglin was guilty of negligence in certain respects, to find for the defendant on the issue of negligence. The complaint urged against the charge is that the seventh paragraph was in conflict with the tenth and eleventh, and therefore the jury was left without any proper guide. That objection seems to be supported by Baker v. Ashe, 80 Tex. 356, 16 S. W. 36, Gonzales v. Adoue, 94 Tex. 120, 58 S. W. 951, Railway v. Waldie, 101 S. W. 517, and American Mortgage Co. v. Brown Bros., 101 S. W. 857.

Nowhere in the court’s charge was the jury distinctly told that contributory negligence on the part of the driver of the automobile would be a complete defense to the plaintiff’s suit, although it might be shown that the motorman in charge of the street car was guilty of negligence; and appellant requested two instructions which would have cured that omission and made that point clear to the jury. It is true, as above stated, that in two paragraphs the court instructed the jury, if they found that the driver of the automobile did, or omitted to do, certain things, and that they were negligent and contributed to the injury, to find for the defendant on the issue of contributory negligence; but appellant had the right to have the jury distinctly informed that contributory negligence would be a complete defense, notwithstanding the fact that appellant’s motorman may have been guilty of negligence. Some of the jurors in this case may have served as jurors in other cases, in which they were told by the court that contributory negligence would not constitute an absolute defense, but could only be considered in diminution of the amount to be awarded to the plaintiff, which is the law in a certain class of cases. In view of that condition of the law in this state in reference to contributory negligence, and in view of the fact that the testimony of Anglin himself, as well as that given by other witnesses, tended strongly to show that he was guilty of contributory negligence, we hold that it was reversible error for the court to refuse the instructions referred to, distinctly informing the jury that contributory negligence would be an absolute defense, notwithstanding the negligence on the part of the motorman in charge of the street car.

Other questions presented are not likely to arise again, and need not be decided. Our conclusion is that the judgment should be reversed, and the cause remanded; and it is so ordered.

Reversed and remanded.


text:
    SANDERS v. DUNN.
    (Court of Civil Appeals of Texas. Austin.
    May 7, 1913.
    Rehearing Denied June 25, 1913.)
    1.Venue (§ 84) — Change oe Venue — Fraud.
    Where an action for fraud in an exchange of land was brought in the county where the fraud was alleged to have been committed, plaintiff was not entitled to a change of venue because of his nonresidence in that county, where his plea of privilege did not charge that the allegation that the fraud was perpetrated in the county where the suit was brought was inserted in the petition for the fraudulent purpose of conferring jurisdiction.
    [Ed. Note. — For other cases, see Venue, Cent. Dig. §§ 146-148; Dec. Dig. § 84.]
    2. Appeal and Error (§ 683) — Questions Not Raised at Trial — Suppressing Deposition.
    An assignment that the court erred in overruling a motion to suppress the deposition of a witness cannot be reviewed, where the record did not show that the motion was called to the attention of or ruled on by the trial court.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2907; Dec. Dig. § 683.]
    3. Fraud (§ 59) — Measure oe Damages.
    In an action for fraud in an exchange of property, the measure of damages is the difference between the value of the property with which plaintiff parted and the value of that which he received from defendant, and not the difference in value between the property alleged to have been misrepresented at the time of the sale and its value had the facts been as represented.
    [Ed. Note. — For other cases, see Fraud, Cent. Dig. §§ 60-62, 64; Dec. Dig. § 59.]
    4. Exchange oe Property (§ 8) — Fraud-Conveyance — Bien on Other Property.
    Where defendant fraudulently induced plaintiff to make an exchange of certain real property, and before the discovery of the fraud defendant exchanged the property received by him with certain other property for property in M., plaintiff- in an action for damages for the fraud was entitled to an equitable lien on all of the property in M., so received by defendant, in the absence of proof as to the value of the other property added by defendant to that received from plaintiff to form the consideration for the exchange of the M. property, under the rule that when a trustee mixes the trust fund with his private funds the trust will attach to the entire fund; and this though a part of such consideration was defendant’s homestead.
    [Ed. Note. — For other cases, see Exchange of Property, Cent. Dig. §,§ 14-18; Dec. Dig. § 8.]
    Appeal from Lampasas County Court; John W. Robinson, Judge.
    Action by W. G. Dunn against George E. Sanders. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Word & Walker, of Lampasas, for appellant. J. C. Abney and Matthews & Browning, all of Lampasas, for appellee.

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

   KEY, C. J.

On May 3, 1912, W. G. Dunn and Geo. E. Sanders made a trade, as a result of which Dunn conveyed to Sanders a tract of 510 acres of land in Lampasas county, and Sanders conveyed to Dunn a tract of 460 acres of land in Culberson county, and paid to Dunn $50 in cash, and executed promissory notes for the sum of $3,000, to cover the difference in value between the two tracts of land. Thereafter Sanders sold and conveyed the 510-acre tract of land and a house and lot in the town of Lampasas to one J. W. Irwin, and received as a consideration therefor a deed from Irwin, conveying to Sanders certain real estate in the town of Miles, in Runnels county, Tex. August 29, 1912, Dunn brought this suit against Sanders to recover damages, upon the ground that Sanders, in the trade referred to between them, had perpetrated a fraud upon him (Dunn); and he also sought to foreclose an equitable lien upon certain lots in the town of Miles, in Runnels county, for which he alleged the defendant had traded the 510 acres of land traded by him to the defendant. Among other things the plaintiff alleged in his petition: “That on said May 3, 1912, and prior thereto, the said defendant in Lampasas county, Tex., represented to plaintiff that said 460 acres of land was located in Toy ah Yalley, 7 miles from Toyah, and practically all of said 460 acres was black valley land, and, further, that there were wells in the valley in the neighborhood or vicinity of said 460 acres from 100 to 150 feet in depth, and from which as much as 1,200 gallons of water per minute was being pumped.” It was further alleged in the petition that the representations referred to were relied on by the plaintiff ; that they were false, etc.

In the defendant’s original answer, he excepted to the plaintiff’s petition on the ground that it showed on its face, which was true, that the defendant was a resident of Ellis county, Tex.; and he also filed a plea of privilege in due form, which concluded with a prayer that the suit be transferred to the district court of Ellis county. He did not allege in that plea or elsewhere that the allegations in the plaintiff’s petition that the fraudulent representations relied on by the plaintiff for recovery were made in Lampa-sas county were fraudulently inserted in the plaintiff’s petition for the purpose of conferring jurisdiction upon the district court of Lampasas county.

, There was a jury trial, which resulted in a verdict and judgment awarding to the plaintiff damages in the sum of $4,000, and fixing and foreclosing a lien to that extent upon the real estate in the town of Miles, which Sanders had acquired from J. W. Irwin in exchange for the 510 acres of land above referred to, and the house and lot in the city of Lampasas, and it is from that judgment that Sanders is prosecuting this appeal.

The first assignment of error complains of the action of the court in overruling ap-pellee’s exception and plea in abatement. While the petition showed on its face that the defendant was a nonresident of the county in which the suit was brought, the plea of privilege was properly overruled for the reason that the plaintiff’s cause of action was founded upon fraud alleged in the petition to have been committed in the county where the suit was brought, and the defendant did not allege that the allegation that the fraud was perpetrated in that county was inserted in the petition for the fraudulent purpose of conferring jurisdiction; and therefore the plea of privilege was insufficient. Watson v. Baker, 67 Tex. 48, 2 S. W. 375.

The second' assignment' complains of the alleged action of the trial court in overruling a motion to suppress the deposition of a certain witness. The record does not show that the motion referred to was called to the attention of or ruled upon by the trial court, and therefore that assignment is overruled. The third and fourth assignments complain of certain rulings in regard to the admissibility of certain testimony. There is no merit in these assignments, and they are overruled.

The fifth assignment presents, in another form, substantially the same question ruled on in disposing of the first assignment.

Several objections are urged against the court’s charge, and as to the refusal of requested charges; but the only questions presented under those assignments that we care to discuss in this opinion are what constitutes the true measure of damages in a case of this kind, and whether or not the court correctly charged in reference to the plaintiff’s alleged lien on the defendant’s property in the town of Miles. Counsel for appellant contend that the correct meásure of damages is the difference in value between the property alleged to have been misrepresented at the time of the sale and its value, had the facts been as represented. The learned trial judge instructed the jury that the measure of damages was the difference between the value of the property which the plaintiff parted with and the value of that which he received from the defendant. Although authorities tending to support appellant’s contention may be found elsewhere, in this state the law is settled to be in accordance with the court’s charge. George v. Hesse, 100 Tex. 44, 93 S. W. 107, 8 L. R. A. (N. S.) 804, 123 Am. St. Rep. 772, 15 Ann. Cas. 456. See, also, Sigafus v. Porter, 179 U. S. 116, 21 Sup. Ct. 34, 45 L. Ed. 113.

As to the plaintiff’s right to foreclose his lien upon other property belonging to the defendant, the court instructed the jury, in substance, that if. they found from the testimony that the property in the town of Miles, - upon which the plaintiff sought to foreclose his lien, was purchased, in whole or in part, with the property received by the defendant from the plaintiff, then to find that the plaintiff had an equitable lien upon that property. As stated before, the proof shows that appellant conveyed the 510 acres of land in Lampasas county, which he obtained from appellee, and a house and lot in the town of Lampasas, upon which he and his family resided, for certain real estate in the town of Miles. There was no proof as to the value of the house and lot in Lampasas. While counsel for appellant seem to concede that, if appellant had given no other consideration for the Miles property than the tract of land which he had obtained from appellee, the latter, if entitled to recover damages, would have an equitable lien upon the Miles property; their contention is that if the Miles property was paid for in part with other property, the value of which was not' shown, appellee was not entitled, to a decree establishing and foreclosing a lien against the Miles property. In other words, the contention is that the burden rested upon appellee to show the respective values of the Lampa-sas county land, and of the house and lot in the town of Lampasas that were used by appellant in acquiring the property in the town of Miles. It is well settled that, when a trustee mixes the trust fund with his own private funds, the trust will attach to the entire fund; and we think that rule has application to eases of this kind. At any rate, we are of opinion that, if appellant desired to avoid the effect of that rule, the burden was upon him to show the respective values of the two pieces of property that were used by him in acquiring the property in the town of Miles. H. & T. C. Ry. Co. v. Bremond, 66 Tex. 163, 18 S. W. 448; 2 Pom. Eq. §§ 9, 10, 1051, 1053, 1076; Simkins Eq. p. 207; Zundell v. Gess, 73 Tex. 144, 10 S. W. 693; Moore v. First Nat. Bank, 154 Mo. App. 516, 135 S. W. 1005.

Appellant did not allege in his answer that the house and lot in the town of Lampasas, which was used in part payment for the lots acquired in the town of Miles, was his homestead, and therefore exempt from liens; nor do we perceive that it would have made any difference if he had so alleged, unless he had shown the relative value of that property and the tract of land which formed the balance of the consideration for the lots in Miles. It was not appellee’s fault that appellant used his homestead in connection with the tract of land on which appellee had an equitable lien in payment for the lots in Miles; and if appellant desired to have those lots protected to the extent that they were paid for with his homestead, it was his duty, and the burden rested upon him, to show the value of the homestead property, in order that the court might in the decree, to that extent, exempt the Miles property from the operation of appellee’s equitable lien.

This disposes of all the assignments presented in appellant’s brief; and, no reversible error being shown, the judgment is affirmed.

Affirmed.


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    PITTS et al. v. VAN ORDEN et al.
    (Court of Civil Appeals of Texas. Texarkana.
    May 5, 1913.
    On Motion for Rehearing, July 3, 1913.)
    1. Winns (§ 734) — Suppression—Liability op Heik — Interest.
    Where testatrix’s sole heir, by suppressing her will, obtained possession of her whole estate, including a legacy to another, and the heir later died leaving a will bequeathing a legacy to such legatee more than sufficient to satisfy the legacy in the original will, the heir’s
    executor was not liable to such legatee for interest on the original legacy at the. highest rate.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 1847-1872; Dec. Dig. § 734.]
    On Rehearing.
    2. Wmns (§ 714) — Bequest to Creditor-Satisfaction oe Debt.
    Decedent, who was testatrix’s sole heir, by suppressing her will in which she bequeathed to Y. $500 and an undivided interest in certain land, obtained the whole estate which he used during his lifetime, but left a will himself bequeathing to Y. $1,000, which was more than sufficient to pay his indebtedness to V. for the conversion of her interest in testatrix’s estate with interest at 6 per cent. Decedent and V. were cousins, having grown up as children together, and decedent made bequests to other persons to whom he was neither related nor indebted and left an estate more than sufficient to satisfy any debts he owed and all the special bequests made. Seld, to indicate an intent on decedent’s part that his bequest to V. should not operate as payment of his debt to her by the conversion of her legacy.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 1698-1703; Dec. Dig. § 714.]
    Appeal from District Court, Harrison County; H. T. Lyttleton, Judge.
    Action by Mrs. Annie Ward Van Orden and others against Mrs. Hattie Pitts and others. Judgment for plaintiffs, and defendants appeal.
    Reversed and remanded on rehearing.
    Beard & Davidson, of Marshall, for appellants. P. M. Young, of Marshall, for appel-lees.

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

   WILLSON, C. J.

Mrs. Ann Eliza Morphis died January ■ — , 1896, leaving a will by the terms of which she bequeathed to her grandson, John M. Gardner, $1,000 and other property not necessary to specify, and to her niece, appellee Mrs. Annie Ward Van Orden, then Annie Ward, a child about 11 years of age, $500, an undivided interest in a piece of land in Ballinger, and other property not necessary to specify. Had Mrs. Morphis died intestate, Gardner, as her only heir, would have taken her entire estate. At the time Mrs. Morphis died and during nearly a year afterwards it was not known that she left a will. Her will was found by Gardner about December, 1896, it seems. Instead of probating the will when he found it, Gardner concealed its existence from Mrs. Van Orden, and having, as Mrs. Morphis’ only heir, taken possession of all the property belonging to her estate, including about the sum of $1,200 in money and vendor lien notes aggregating the sum of $400, which he collected in December, 1896, retained possession thereof and used same as his own until his death, which occurred January 19, 1906. At the time he died, Gardner’s estate, including $13,500 insurance on his life, was worth about $30,000. He left a will, by the terms of which he bequeathed to Mrs. Van Orden $1,000, to various other persons sums aggregating $3,900, and to his stepmother, appellant Mrs. Hattie Pitts, the remainder ot his estate. About March, 1906, Mrs. Pitts, as executrix of his will, paid to Mrs. Van Orden the $1,000 thereby bequeathed to her. Mrs. Van Orden did not learn of the existence of the will left by Mrs. Morphis until February, 1912. Having shortly after that date secured possession of the will, Mrs. Yan Orden commenced proceedings to probate it, and then, joined by her husband, brought suit against Mrs. Pitts and her husband and obtained the judgment for $1,425.40 (enforceable only against property belonging to the estate of said Gardner in their hands), from which this appeal is prosecuted. It appeared that Mrs. Van Orden, as the heir of Mrs. Adkins owned a one-third undivided interest in the Ballinger lot; that the heirs of one Ward owned an undivided one-third interest therein; and that Mrs. Morphis at the date of her death owned the other undivided one-third interest in the lot. By the terms of Mrs. Morphis’ will one-half of her one-third interest in the lot was devised' to Mrs Van Orden. In July, 1900, the owners of the undivided interests, including Mrs. Van Orden, who acted by one Turney, her guardian, under proper orders of the probate court sold the Ballinger lot for $350. The sum representing the proceeds of Mrs. Morphis’ one-third interest in the lot, to wit, $116.33, was paid to Gardner as the owner of that interest. One-half of the sum so paid to him, to wit, $58.16, represented the interest in the lot which Mrs. Morphis had bequeathed to Mrs. Van Orden and should have been paid to her guardian instead of to Gardner. For the purpose of disposing of this appeal it is not necessary to notice Mrs. Van Orden’s pleadings further than to say that by her original petition she sought to recover the $500 and interest thereon bequeathed to her by Mrs. Morphis, and by her supplemental petition sought to recover said $58.16 and interest thereon representing the proceeds of the sale of her interest in the Ballinger lot.

It was contended in the court below, and is here, that the acceptance by Mrs. Van Orden of the bequest made to her by Gardner operated to satisfy her claim against him on account of the conversion by him of the $500 and $58.16 belonging to her by the terms of Mrs. Morphis’ will. The contention is based on the rule well established by the authorities “that a legacy given by a debtor to his creditor, which is equal to or greater than the debt, is, in the absence of a contrary intention, to be deemed a satisfaction of the debt.” 18 A. & E. Enc. Haw (2d Ed.) p. 769; 1 Underhill on Wills, § 450. The rule, it seems, is one of construction, founded on a presumption as to the intention of the testator. There is an utter absence of anything in the record before us indicating an intention on the part of Gardner that the bequest made by him to Mrs. Van Orden shóuld not operate as a payment of his debt to her; and, if that bequest was equal to or greater than that debt, there is no reason why the contention should not be sustained, unless it is true, as appellees insist it is, that the rule is not applicable because Gardner’s indebtedness to Mrs. Van Orden was for “trust funds.” That the rule is not applicable when the debt of the testator is for such funds is declared to, be the law in 18 A. <& E. Enc. Law (2d Ed.) p. 773, cited by ap-pellees, on the authority of Taylor v. Taylor, 4 Jur. N. S. 1218, Tompson v. Wilson, 82 Ill. App. 29, and Van Riper v. Van Riper, 2 N. J. Eq. 1. We have not had access to either of the cases cited and therefore have been unable, to determine whether they support the statement of the author of the ar-' tide in the encyclopedia referred to or not. From statements made in the Century and Decennial Digests as to the points decided in the Illinois and New Jersey cases, we would expect to find, if we had access to them, that they did not support that author’s statement. In Tompson v. Wilson, 82 Ill. App. 29, the note in 20 Decennial Digest, p. 1556, of the point decided is as follows: “Where a legacy is given to a creditor, it is deemed a satisfaction of the debt in cases where it is equal to or greater in amount than the debt, of the same nature, certain, and not contingent, and if there appear to be no particular motive for the gift.” In Van Riper v. Van Riper, 2 N. J. Eq. 1, the notes in 49 Century Digest, pp. 2623, 2626, and 2629, of the points decided are as follows: “A legacy will be presumed to be a satisfaction of a debt of the legatee against the testator, where there are no circumstances, or upon the face of the will, showing a different intention. ⅜ ⅜ * When the testator directed his executors ‘to pay all his just debts,’ and devised a legacy to a creditor payable when the legatee arrives at age, and the debt due the legatee was unliquidated, the legacy was not a satisfaction of the debt, since a present debt cannot be satisfied by a contingent legacy. * ⅜ * After- a direction in a will for the payment of ‘all the just debts’ of the testator, specific legacies were given to creditors of the testator. Held, that the legacies were not a satisfaction of the debt.” In the Van Riper Case the testator in his will directed the payment of his debts, and the court, it seems, treated the case as within a qualification of the rule stated as follows in 18 A. & E. Enc. Law (2d Ed.) p. 770: “In the absence of evidence of a contrary intention, a legacy equal to or greater than the testator’s indebtedness is not to be deemed a satisfaction where there is an express direction in the will for the payment of the testator’s ‘debts and legacies’ or his ‘debts.’ ” The case before us is not within the qualification stated and is distinguishable from the Van Riper Case in the fact that Gardner in his will made no mention of debts he owed. We see no reason why a distinction dependent on the character of the debt due by the testator should be made in the application of the rule, and therefore do not accept as a correct interpretation of the law the statement made in said encyclopedia. The question in every case, we assume, is one as to the intention of the testator. If the debt is one he can satisfy by a payment directly to the legatee, we see no reason why the presumption should not be indulged without reference to whether the debt is one for trust funds or not. Gardner’s debt to Mrs. Van Orden was one he could, at the date of his death, have satisfied by a payment directly to her, for she was then past 21 years of age. That he intended the bequest to her to operate as a payment of the debt he owed her is supported by the presumption the law requires a court to indulge in construing such a will under circumstances shown by the record. As already stated, there was no testimony whatever aliunde the will tending to show that Gardner did not intend the bequest to operate as a payment of his indebtedness to appellee. On the contrary, we think the declaration he made to the witness Jones, about a year after the death of Mrs. Morphis, when he found her will, that if he did not probate same he would give to Mrs. Van Orden the property or its equivalent thereby bequeathed to her tended to show that he intended the bequest to operate as a satisfaction of his obligation to Mrs. Van Orden.

Without reference to whether it should be said that Gardner occupied towards Mrs. Van Orden the position of a trustee or not, which is a question we are inclined to think should be answered in the negative, it follows from what we have said that we are of the opinion the judgment should have been in favor of appellants, unless the bequest made by Gardner to Mrs. Van Orden was of a sum not as great as his debt to her. It also follows from what has been said that we are of the opinion that Gardner was not liable to Mrs. Van Orden for interest on his indebtedness to her at the highest rate allowed by law on the ground that as trustee of her property he had converted it to his own use, as determined by the trial court. If those conclusions are correct, then it follows that the bequest made by Gardner to Mrs. Van Orden exceeded his indebtedness to her at the date said bequest was paid to and accepted by her, for that indebtedness, including 6 per cent, interest, even if the $58.16 claimed in the supplemental petition should be included as a part thereof, at the time said bequest from Gardner was accepted by Mrs. Van Orden, amounted to only about the sum of $853.

We think the judgment is wrong and that it should be reversed. No reason is apparent why the case should be remanded for a new trial. Therefore judgment will be rendered here that appellees take nothing by their suit against appellants, and that they pay the costs accruing in both this court and the court below.

On Motion for Behearing.

It is insisted in the motion that the conclusion reached by us that there was nothing in the record indicating an intention on the part of Gardner that the bequest made by him to Mrs. Van Orden should not operate as a payment cf his debt to her is erroneous; and in support of the contention it is pointed out that Gardner and Mrs. Van Orden were cousins and as children had grown up together; that he made bequests to other persons to whom he was neither related nor indebted; and that he left an estate more than sufficient to satisfy any debts he owed and all the special bequests he made. We have concluded that the contention should be sustained. We should have overruled all the assignments except the first, eighth, seventeenth, and nineteenth and those in which appellants complained of the action of the court in directing the jury to compute interest at the rate of 10 per cent, per annum on the amount of Gardner’s indebtedness to appellee and, sustaining the assignments excepted, should have reversed the judgment, but, instead of here rendering judgment in favor of appellants, should have remanded the cause for a new trial. To cure our error the motion will be granted and the judgment heretofore rendered by us will be set aside, except so far as it reversed the judgment of the court below, and the cause will be remanded for a new trial.


text:
    GULF, C. & S. F. RY. CO. v. SHARMAN.
    (Court of Civil Appeals of Texas. Austin.
    June 18, 1913.)
    Carriers (§ 266) — Passengers —- Distribution of Baces — Discretion of Conductor.
    Under Bev. Civ. St. 1911, arts. 6746-6753, prohibiting either white or negro railroad passengers from riding in the car provided for the other race, and giving conductors authority to refuse a passenger admittance to any coach in which he is not entitled to ride, and making it his duty to remove any passenger not entitled to ride in a coach because of his race, a com ductor had the discretionary power to determine whether a negro, in charge of a white sheriff, should ride with the officer in the coach for whites, or whether the officer and his prisoner should ride in the colored coach; and the railroad company would not be liable for the conductor’s act in compelling the officer and ne: gro to ride in the colored coach.
    [Ed. Note. — For other eases, see Carriers, Cent. Dig. §⅜ 1049-1055; Dec. Dig. § 266.]
    Appeal from Liberty County Court; I. B. Simmons, Judge.
    Action by E. W. Sharman against the Gulf, Colorado & Santa Fé Bailway Company. From a judgment for plaintiff, defendant appeals.
    Beversed.
    Terry, -Cavin & Mills and A. EL Culwell, all of Galveston, for appellant. Marshall & Harrison, of Liberty, for appellee.

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

   Findings of Fact

JENKINS, J.

Appellee alleged that on September 21, 1911, he boarded one of appellant’s trains at Milvid with a negro prisoner, he being' the sheriff of Liberty county; that both himself and the negro prisoner were entitled to transportation to destination, which was Beaumont on that road; that he had a pass upon said road, and paid the transportation of said prisoner; that he entered what is known as the smoking car for whites, and that the conductor, auditor, and porter of appellant refused to allow the said negro prisoner to ride with appellee in said car, but forcibly took away from him said prisoner, and removed him by physical force to the negro coach, thereby forcing appellee to follow said prisoner into said- coach, and to ride in said negro coach, by which action he was greatly humiliated and mortified, to his damage $999.99. There was a verdict and judgment for appellee for the sum of $500. There is no material conflict in the evidence, which shows that appellee was the sheriff of Liberty county, and was on his way to Mil-vid to receive a negro prisoner from an officer who there had him under arrest, and who had been notified to have said prisoner at the depot, and that in order to avoid delay he paid the auditor transportation from Milvid to Beaumont before arriving at Mil-vid ; that he received his prisoner at Milvid, who was a negro, and was charged by affidavit with murder, handcuffed, and took him into the smoking ear for whites; that thereafter the conductor, with whom he was ac-‘ quainted and on friendly terms, approached him and asked him to take the negro to the negro coach, saying that the law did not allow negroes to ride in the coach for whites. Appellee replied that he was the sheriff of Liberty county, which fact was known to the conductor, and that the negro was his prisoner, charged with murder, and that he had the right under the law to keep him in the seat with him in the coach for whites. The conductor replied that he did not so understand the law; but, on the contrary, that it was his duty under the law to prevent said negro from riding in the car with the whites, and that the negro must go into the negro coach; that he would place the negro just inside the partition, and leave the door open, and that appellee, who was sitting next to the partition, could see and watch his prisoner. Appellee replied that it was his duty to stay with his prisoner, and that if the negro went he would go with him. The conductor said that the negro must go into the negro coach, and thereupon, appellee protesting, he and the negro and the conductor went into the negro coach. The auditor and the porter were in the car, and near appellee and the conductor, when this conversation was going on, but had not been asked to be there by the conductor, and took no part in the conversation. Appellee also alleges that there were a number of negro men in the coach, and that he was afraid his prisoner would be rescued by them. After riding in the negro coach three or four miles, the conductor, who says that he saw that appellee was angry, approached him and said to him, while it was a violation of the law to allow a negro to ride in a coach for whites, that he would take the responsibility upon himself of violating the law, and that appellee might take his prisoner into the coach for whites, if he so desired. Appellee replied that he had been compelled to go in there, and that he was not going out. After appellee reached Beaumont, he took the Texas & New Orleans road with his prisoner to Liberty, and on this road he rode in the negro coach. He says that he did not notice that it was the negro coach when he entered, but afterwards discovered that it was, and did not leave the coach.

Opinion.

The laws of this state (R. S. 1911, arts. 6746 to 6753) require railway companies to furnish separate coaches for white and negro passengers, and prohibits either race from riding in the car provided for the other race, and provides that conductors “shall have the authority to refuse any passenger admittance to any coach or compartment in which they are not entitled to ride under the provisions of this law; and the conductor in charge of the train ⅜ * ⅜ shall have authority, and it shall be his duty, to remove from a coach * * * any xoassenger not entitled to ride therein under the provisions of this chapter, and upon his refusal to do so knowingly shall be punished as provided in the Penal Code of this state.” It is the contention of appellant that under the provisions of this law, the conductor was required to remove said negro from the coach provided for whites. Such is the imperative command of the statute; but there is another statute which requires peace officers to safely keep and guard their prisoners. These statutes must be taken together. Like the oft-quoted instance of the surgeon who bled the man that fell down in the street with a fit, and was prosecuted for violating the law against drawing blood in the street, we think the “rule of reason” should apply to this statute, and that the circumstances of a sheriff having a prisoner in charge creates an exception to the law. If a conductor should strictly enforce this law, he could neither allow the sheriff to take his prisoner into the coach for whites, nor allow him to ride in the coach for negroes; the sheriff being a white man and the prisoner a negro. Nevertheless the law does intend that the races should be separated where practical; and in this instance, we think the conductor had the discretion to determine whether- the negro should ride with the officer in the coach for whites, or the officer with his prisoner in the coach for negroes, and that in determining that the latter course should be pursued lie was in the exercise of his legal discretion, which, under the facts of this ease, was not abused. While the statute, in terms, equally protects whites from the presence of negroes, and negroes from the presence of whites in their respective coaches, yet it is well known that the leading purpose of this statute was to protect the white race from the presence of negroes while traveling on trains.

We can see no reason why a sheriff should feel humiliated by being compelled to ride in the negro coach with his prisoner, when the same was necessary in the discharge of his •legal duties. There are many disreputable places in which a man who claims to be respectable would feel mortified and humiliated, if found therein, except in the discharge of duty, and yet no sheriff would hesitate to enter such places when necessary to discharge his duties. There was no evidence at all of any reasonable apprehension on the part of the sheriff that there would be an attempt to rescue his prisoner; and this is evidenced by the fact that he remained in the coach after he was told by the conductor that he could take his prisoner back into the coach for whites. It is further apparent that he was not humiliated by finding himself by mistake in the negro coach on the Texas & New Orleans road. Perhaps he was angry at not having his way in having the negro ride with him in the coach for whites; but if he was humiliated by being compelled (if such was the fact), in order to safely guard his prisoner, to ride in the negro coach, appellant is not responsible for such humiliation.

Por the reasons above given, this case is reversed and rendered in favor of appellant.

Reversed and rendered.