text:
    RICHARDSON v. WILSON.
    (No. 8077.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    May 1, 1915.
    Rehearing Denied May 29, 1915.)
    1. Evidence <&wkey;460 — Documentary Evidence — Parol Evidence to Vary.
    Plaintiff entered into negotiations to buy a drug store, and at the same time defendant agreed to become a partner in the venture, and the sellers, pending negotiations, placed an agent in charge of the business, who was to run it for plaintiff’s benefit in ease the sale -was consummated. After consummation of the sale, plaintiff conveyed a one-half interest of the business to defendant by bill of sale, guaranteeing him against all claims against the business. Meld that, as the bill of sale was part of a larger transaction, parol evidence was admissible to show that the partnership between plaintiff and defendant actually existed from the time negotiations were begun, and that from such time defendant received the profits and became liable for his proportion of the expenses of the business.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2115-2128; Dec. Dig. <&wkey;>400.]
    2. Partnership <&wkey;53 — Actions—Evidence-Sufficiency.
    Evidence held to show that from the time plaintiff began negotiations for the acquisition of a drug business, and an agent who was to run it for his benefit was placed in charge, he and defendant were partners.
    [Ed. Note. — For other cases, see Partnership, Cent. Dig. §§ 76, 79; Dec. Dig. «&wkey;53.]
    3. Trial <&wkey;351 — Actions — Submission oe Issues.
    Where complicated accounts arising out of several business transactions were in issue, and the court submitted the issue as to what amounts were due and unpaid by defendant on the H. & D. account, the refusal of a special issue as to what amounts were paid to H. & Jj. on account of plaintiff was not error; the jury finding that $103 was paid, and defendant making no complaint of the finding in his motion for new trial.
    [Ed. Note. — For other eases, see Trial, Cent. Dig. §§ 829, 834-839; Dee. Dig. &wkey;351J
    4. Sales <&wkey;77 — Contract of Sale — Construction.
    Where a contract of sale, which included all accounts in favor of the business, provided that the stock of merchandise was to be invoiced at actual cost, and the seller’s interest was to be paid for in casb, less 5 per cent., the discount applied to accounts receivable.
    [Ed. Note. — For other cases, see Sales, Cent. Dig'. §§ 20S-212; Dec. Dig. @=>77.]
    5. Brokers @=>65 — Compensation—Commissions.
    Where a broker represented the opposite party and made misrepresentations to plaintiff, who had agreed to pay him commission, he cannot recover the agreed commissions from plaintiff.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 48-50; Dec. Dig. @=65.]
    6. Subrogation @=26 — Right to Subrogation.
    Where the seller of an interest in a business declined to pay the broker the agreed commission, and did not authorize the buyer to do so, the buyer has no right to pay the commis-cion and, having paid it, cannot recover from the seller.
    [Ed. Note. — For other cases, see Subrogation, Cent. Dig. § 67; Dec. Dig. @=>26.]
    7. Trial @=>192 — Instructions — Assuming Facts — Review—Harmless Error.
    A charge making an assumption of an undisputed fact is harmless.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 432-484; Dec. Dig. @=>192.]
    8. Trial @=>191 — Instructions—Assumption op Facts.
    A charge directing the juiry to return an answer to a special issue submitted is not erroneous as assuming facts in issue.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 420-431, 435; Dec. Dig. @=>191.]
    9. Trial @=>220 — Instructions.
    The action of the court in directing the jury to return an answer to a special issue is not in violation of Acts 33d Leg. c. 59, requiring the court's instructions to be submitted to the jury before argument.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 506; Dec. Dig. @=>220.]
    Appeal from District Court, JoJmson County; O. L. Lockett, Judge.
    Action by J. A. Wilson against T. I. Richardson and another. From a judgment for plaintiff against the named defendant, he appeals.
    Reformed and affirmed.
    Ramsey & Odell and H. P. Brown, all of Cleburne, and R. S. Phillips, of Ft. Worth, for appellant. S. C. Padelford, of Cleburne, .and P. E. Johnspn, of Stockdale, for appellee.
   CONNER, C. J.

This suit was instituted .by the appellee against the appellant, T. I. Richardson, and J. M. Senter, to recover •damages for alleged fraudulent representations of the value of a one-half interest in a grocery store at Lillian, Tex., given in exchange by Richardson to Wilson for the fixtures of a stock of drugs at Ft. Worth, Tex., and to recover an alleged balance due on the sale of the stock. The trial resulted in a-judgment in favor of the plaintiff against the defendant Richardson for the sum of $1,370.-38. The judgment, however, altogether discharged the defendant Senter.

The controlling question presented on this : appeal from said judgment by the defendant Richardson arises from rulings of the trial court in the introduction of evidence. That this ruling may be understood it will be necessary to state, in an introductory way, that during the year 1911 a firm doing business in the name of Lowe Bros, advertised their stock of drugs at Ft. Worth for sale or exchange; that finally, appellee, being induced by the contract of the appellant Richardson to take a one-half interest, agreed with Lowe Bros, to exchange an equity in certain land owned by him in Johnson county for the stock of drugs referred to at an agreed valuation of $8,500. This agreement with Lowe Bros, was executed on the 18th day of November, 1911. It provided, so far as necessary to state, that Wilson was to furnish abstracts of title to his land; that Lowe Bros, should in all respects comply with the Bulks Sales Law of Texas in regard to the sale of drugs and furnish Wilson, at the time of the consummation of the trade,' an agreement signed by each and all of the creditors of Lowe Bros, agreeing to the sale. It further provided that, until the consummation of the sale, Tom G. Schultz, the manager of Lowe Bros.’ business, should remain in charge of the stock and immediately open a new set of books, keep strict account of receipts and disbursements, and not to incur any expense, except in the ordinary and usual conduct of the business. It further provided that, if the trade was finally consummated, the said Schultz should account to Wilson for his conduct of the business and deliver to him the stock of drugs, furniture, and fixtures, together with all receipts of the business from the date of the contract, but that, if the trade should not be consummated, then the said Schultz should account to Lowe Bros. On the same day Richardson and Wilson entered into a written contract, wherein, so far as necessary to state, it was provided that:

“T. I. Richardson, for the consideration hereinafter named, hereby bargains and- sells and agrees to convey by general warranty deed to J. A. Wilson 103 acres of land in Johnson county, Tex., and fully described in a deed executed by C. F. and Mattie Smith to T. I. Richardson, dated November 18, 1911, to which reference is here made.”

In consideration of which, among other things, Wilson agreed—

“to transfer and deliver to T. I. Richardson an undivided one-half interest in a stock of drugs and fixtures located 900 Houston street, Ft. Worth, Tex., this day contracted to be sold to J. A. Wilson by H. P. and J. E. Lowe.”

The contract provided that Richardson should furnish an abstract of title to Wilson of the 103 acres of land mentioned, and further recited that:

■“This trade is made on the condition that the contract this day made between J. A. Wilson and II. P. and J. E. Lowe shall be consummated; in the event said trade shall not be consummated, then this contract shall be null and void.”

On the 7th day of December thereafter the contract between Lowe and Wilson was fully consummated, whereupon Wilson, in consideration of the conveyance of the 103 acres of land mentioned in the Wilson-Richardson contract of November 18, 1911, executed and delivered to Richardson the following bill of sale:

“Know all men by these presents, that I, J. A. Wilson, of Tarrant county, Tex., in consideration of $4,000 cash to us paid by T. I. Richardson, receipt of which is hereby acknowledged, have transferred, bargained and sold, and by these presents transfer, bargain and sell, unto the said T. I. Richardson, of Johnson county, Tex., the following described property situated in the city of Et. Worth, Tex., to wit: The same being one-half interest in the business known as the Et. Worth Pharmacy, situated at the southwest corner of Houston and Eighth streets, Et. Worth, Tex., including the entire stock of merchandise, together with all furni-tuire and fixtures in said place of business, at No. 900 Houston street, including also the furniture and fixtures in the basement of said place or building, except electric motor and electric clock. The grantor warranting title to all the property hereby conveyed and warrant and guarantee against all claims of any character against the said property or said business, according to bill of sale conveyed to me by Lowe Bros. To have and to hold the said business, merchandise, furniture, and fixtures unto the said T. I. Richardson, his heirs and assigns forever.”

Wilson and Richardson thereupon, as partners, entered upon the prosecution of business as druggists, Schultz having fully accounted to Wilson as provided in the contract between Wilson and Lowe Bros., and continued the prosecution of said business until the 19th day of December, 1911, when Wilson sold the one-half interest that had been retained by him to Richardson. The contract then made between them was as follows:

“Know all men by these presents, that I, J. A. Wilson, of Johnson county, Tex., transfer, bargain and sell unto T. I. Richardson, of Johnson county, Texas, my undivided one-half interest in the business-known as the Et. Worth Pharmacy, at the corner of Eighth and Houston streets, Et. Worth, Tex., together with all furniture and fixtures in said place of business. It is hereby understood that the fixtures are to be invoiced at $5,000, and J. A. Wilson discounts his one-half interest in fixtures 50 per cent., or a total of $1,250; the remainder of the stock of merchandise in the store to be invoiced at actual cost of same, J. A. Wilson’s interest to be paid for in cash, less 5 per cent. I hereby acknowledge the receipt of $1,250 this day paid to me to apply upon the foregoing bill of sale and contract. All the accounts to date in favor of said business are to be included in invoice, and the indebtedness upon same, after being deducted from said invoice, the result shall conclude the total inventory. It is further and mutually agreed that the said T. I. Richardson hereby agrees to assume and release the said J. A. Wilson from any and all debts that may have accrued against the firm of Wilson & Richardson, including lease on said building, No. 900, corner Eighth and Houston streets, which is now under lease to said firm.
“Given under our hands this the 19th day of December, A. D. 1911.
“J. A. Wilson.
“T. I. Richardson,
“By J. M. Senter.”

At the time of this contract, no cash was paid; the $1,250 acknowledged by Wilson to have been paid being represented by Richardson’s interest in .a grocery store at Lillian, Tex., referred to in the beginning of this opinion, and then represented to Wilson as being of the value of $1,250.

An auditor was appointed by the court with instruction to find the amount of merchandise in the drug store on hand on December 19, 1911, at actual cost, less 5 per cent., exclusive of the furniture or fixtures belonging to said business, the different amounts of the accounts receivable and accounts payable on said date, the amount of cash on hand on said date, and then to strike balances and find the value of J. A. Wilson’s interest in the stock of merchandise on hand at the time of the sale. The auditor reported a balance of $1,432.32 due to Wilson for his interest in the stock of merchandise on December 19th. This balance, plus $900 damages, found in a special verdict of the jury under the court’s instructions to be the difference in the value in the stock of groceries at Lillian as it existed on the 19th day of December, 1911, and as it was represented to be, minus certain credits found by the court, aggregating $902.14, was made the basis of the judgment, which, as before stated, was for the sum of $1,370.38.

Among the items charged to Richardson in the auditor’s report and approved by the court was an aggregated item of $512.13, made up of debts of the drug business that accrued during the administration of Schultz, and it is about this item and several other minor items of like character that the principal questions in this case cluster. In its final analysis, appellant’s insistence is, briefly stated, that the items referred to are included amoñg the claims against which .appellee warranted in his bill of sale dated the 7th day of December, 1911, and hence should not have been charged to him in the report of the auditor. Appellee’s contention was and is, in substance, that these items constituted debts of the firm of Wilson & Richardson, and hence were not debts guaranteed against by Wilson in the bill of sale dated December 7th, but were debts assumed by Richardson in the contract of December 19th.

In support of appellee’s contention above noted, he sought to show, and was permitted to show, that on the 18th day of November, when he and Lowe Bros, entered into the written contract hereinbefore described, and he and Richardson entered into the contract of the same day also before mentioned, it was further, on the same day, orally agreed by Wilson and Richardson that Schultz should take charge of the Lowe stock of drugs and manage the business, as provided in the Wilson-Lowe contract, in the interest of both Wilson and Richardson. Certain declarations of the parties at the time were also offered and admitted as tending to show a partnership relation. Also evidence tending to show that on the 7th day of December, when the formal transfer to Richardson’s half interest was made, the cash and bills receivable accruing during the Schultz management went into and were accepted by the firm of Wilson & Richardson as if the partnership between Wilson and Richardson was then and had theretofore been an existing relation. There may have been some other evidence tending to establish the partnership as alleged, but, without further specification, it may be said generally that the whole was ottered and admitted in support of appellee’s allegation that the partnership relation between Wilson and Richardson had existed, in substance and in spirit, from November 18, 1911, when the written contracts made on that day were executed. To all shch testimony appellant objected on the ground that there were no allegations of fraud, accident, or mistake in the execution of the bill of sale of December 7th; that this instrument embodied the contract between them, and that an oral contract of an antecedent partnership could not be ingrafted thereon; that proof of such partnership for the purpose offered was in contradiction of the specific unambiguous terms of the guaranty of Wilson in the instrument dated December 7th against “¡all claims of any character against the said property of said business.”

The general rule of law embodied in appellant’s objections, as above noted, is well settled, but, as is also well settled, the rule has its exceptions. Says Mr. Justice Rice (citing numerous authorities) in the case of Landrum v. Stewart, 111 S. W. 769:

“The rule excluding parol evidence when offered to contradict or vary the terras, provisions, or legal effect of a written instrument has frequently been held to have no application to collateral undertakings, nor to cases in which the written instruments were executed only in part performance of an entire oral agreement. Where the note or written instrument is only part of a more comprehensive agreement or transaction, then the rule contended for by ap-pellee does not apply; and it is always permissible, under such circumstances, to .introduce parol evidence to show what, in fact, was the contract'or agreement between the parties.”

The following authorities are to the same effect and may be consulted with profit, viz.: Thomas v. Hammond, 47 Tex. 42; Chicago, etc., Bank v. Chicago, etc., Co., 190 Ill. 404, 60 N. E. 586, 83 Am. St. Rep. 138; Wilson v. Roots, 119 Ill. 379; 10 N. E. 204; Missouri Ry. Co. v. Doss, 36 S. W. 497; Well Plow Co. v. Evans, 24 S. W. 38; Davis v. Sisk, 49 Tex. Civ. App. 193, 108 S. W. 472; Masterson v. Burnett, 27 Tex. Civ. App. 370, 66 S. W. 90.

Adopting and approving as applicable herein the law as stated in the quotation last above made, we are of the opinion that the trial court ruled correctly, and that appellant’s assignments objecting to the character of testimony noted should be overruled. There was testimony tending to show that appellee refused to buy the stock of drugs on any terms, unless he could secure a partner to take a half interest, and it seems evident to us, from the evidence as a whole, that the several contracts of November 18th and of 1 December 7th were but distinct parts of a more comprehensive agreement; that the bill of sale of December 7th was but a consummation of the contracts executed on the 18th day of November. If so, the instrument and guaranty executed by appellee on the 7th day of December is to be construed in the light of all of the circumstances attending the several transactions, and, as so construed, the guaranty should be held to apply as if operative contemporaneously with the preceding written contracts, or at least that it should be construed as a guaranty against those debts only of the drug business that existed at the time the stock was placed, by the agreement of all parties, under the management of Schultz. Added force is given to this construction by the fact shown that, at the termination of the Schultz management, the firm of Wilson & Richardson at once assumed the control, and received the benefit of the cash and bills receivable accruing during the Schultz administration. This fact seems inconsistent with the contention that the business during that period was that alone of Wilson, for in such case no explanation is given of why Wilson did not appropriate to himself all cash and bills receivable; it further appearing in this connection that the cash and bills receivable exceeded the indebtedness of the business as incurred by Schultz. The construction indicated is further fortified, as it seems to us, by the very terms of the guaranty relied upon by appellant. Appellee’s guaranty was “¡against the said property of said business according to bill of sale conveyed to me by Lowe Bros.” This bill of sale to Wilson by Lowe Bros, is not found in the record. But it was presumably in accord with the original contract between Wilson and Lowe Bros., which it will be remembered, among other things, guaranteed that Lowe Bros, should comply with the Bulk Sales Law, and gain the consent of all of their creditors to the sale, thus raising the inference that the creditors of Lowe Bros, were satisfied at the time of appellee’s bill of sale to appellant, and that the guaranty noted was intended to give written assurance to Richardson of this fact.

It follows from the foregoing conclusions that the indebtedness of the business incurred under the management of Schultz, aggregating $512.13, was properly charged to Richardson by the auditor, and that the court did not, in this respect, err in approving the auditor’s report.

In the ninth assignment objection is made to the court’s charge on the ground that it omits the submission of the issue of a $315 credit pleaded by the defendant. The following special issue on the same subject was requested and refused, viz.: “What amounts were paid by the defendant Richardson to Hutton & Lowe for or on account of the plaintiff?” Senter testified that he had, for Richardson, paid to Hutton & Lowe, on orders signed by Wilson, amounts aggregating $310, and there was further testimony to the effect that Wilson had agreed to pay Hutton & Lowe commissions on the Lowe Bros, purchase to the amount of some $300. We find, however, that the court, among others, did submit the following special issue: “What amounts are due or unpaid by defendant Richardson on the Hutton & Lowe account?” To this issue the jury answered “$103.11,” to which answer no complaint was made by appellant in his motion for a new trial. It further appears in the court’s judgment that Richardson was allowed credits, as before stated, aggregating $962.14, including $200 commissions paid to Senter, and the item of $103.11 returned in the special finding already noted. The record is quite voluminous, and the question under consideration is perhaps not as clear to us as it should be; but, so far as we have been able to determine from the record, we conclude that the special issue submitted by the court substantially comprehends the one requested, and that the answer of the jury thereto presents all the credit on the Hutton & Lowe account to which appellant Richardson is entitled.

The item of $109.92 debited to Richardson in the auditor’s report it is insisted in appellant’s tenth assignment should have been credited to Richardson instead of debited. This item, however, consisted of an indebtedness for rent accruing during the Schultz management, and which hence, according to conclusions hereinbefore announced, was properly charged to Richardson. The same conclusion and reasoning applies to the items of $56.64 and of $61.22 charged to Richardson by the auditor, and of which complaint is made in the eleventh and twelfth assignments.

It will be remembered that in the contract of December 19, 1911, when Wilson conveyed a remaining one-half interest in the stock of drugs, etc., to Richardson, it was provided, among other things, that the stock of merchandise in the store was to be invoiced at actual cost, and Wilson’s interest therein was to be paid for in cash, “less 5 per cent.” A further' provision of the contract was that:

“All the accounts to date in favor of said business are to be included in the invoice, and the indebtedness upon same, after being deducted from said invoice, the result shall conclude the total inventory.”

The auditor in stating the account deducted 5 per cent, from the merchandise only, and appellant insists that this 5 per cent, reduction should also have been applied to the bills receivable, and the majority have concluded that a proper construction of the contract between Richardson and Wilson, dated December 19th, supports this contention.

The thirteenth assignment will therefore be sustained, and the judgment herein will be so reformed as to allow a credit to Richardson of 5 per cent, of the amount of bills receivable, amounting to $22.59, with interest thereon from December 19, 1911.

Among other credits or offsets claimed by appellant was an item of $100 paid by Richardson to Senter and claimed by Senter as commissions due from Wilson in making the sale of appellant’s remaining interest in the drug business on December 19th. The jury found in answer to a special issue that Wilson had promised Senter $100 for making the trade, but, in entering the judgment in this case, the court refused to include this item among the credits given to appellant on the ground that:

“The jury having found as a distinct fact that the sale of defendant Richardson’s one-half interest in said stock of groceries by Senter to plaintiff was fraudulent, the court disallows the $100 claimed as commission by said Senter for making the particular sale or exchange of said one-half interest in said stock of groceries.”

Complaint is made of this action of the court in appellant’s fourteenth assignment, but we think the assignment should be overruled. The evidence shows that Senter was the active participant in this sale and seems to have really represented Richardson rather than Wilson; and, while denied by Senter, the evidence abundantly supports the conclusion that he grossly misrepresented the value of the stock of groceries at Lillian, which formed a part of the consideration moving from Richardson to Wilson in the sale of December 19th, and we fail to see, under such circumstances, what equity there would be in compelling Wilson to perform the promise.

Moreover, in addition to the reasons given by the trial court, the evidence distinctly shows that Wilson refused to pay this item, and wholly fails to show that Wilson gave Richardson any authority to pay Senter.

The fifteenth assignment has been waived in behalf of appellant, and the sixteenth and seventeenth, in which cbmplaint is made of the third paragraph of the court’s charge, will be overruled for the reason that we think it unlikely that the jury were misled by the charge, so as to exclude the fixtures in the store at Lillian in their determination of the reasonable market value of the stock of groceries. The same paragraph of the court’s charge is complained of in the eighteenth, nineteenth, and twentieth assignments, on the ground, in substance, that it assumes that Richardson would be liable for the misrepresentations of Senter in the sale of the Lillian stock of groceries, irrespective of whether Senter was at the time acting for Richardson. But, if the paragraph of the charge is susceptible of this construction, we think it harmless at all events, as the evidence seems to be undisputed to the effect that Senter did act for Richardson in making the sale of the Lillian stock of groceries, and in that matter was evidently acting in his interest. Nor do we think the paragraph subject to the criticism that it is on the weight of the evidence in assuming that the plaintiff Wilson relied on representations in his purchase of the Lillian stock of groceries. The paragraph as a whole very plainly, we think, submits the question of Wilson’s reliance upon these representations to the plaintiff.

We think the action of the court complained of in the twenty-second and twenty-third assignments of error, on the whole, amounts to no more than a direction to the jury to return to the jury room and to make and return answer to a special issue which had been submitted to them in the general charge, but to which the jury had failed to return an answer. Such an instruction is not, as we think, either on the weight of the evidence or in violation of that provision of amending laws of 1913 requiring the court’s instruction to be submitted to the jury before argument. See General Laws 1913, p. 113. All assignments relating to this action on the part of the court are accordingly overruled.

There are a number of other assignments, but we think they are sufficiently disposed of by what has already been said, and we will accordingly overrule them without extending this opinion by a more particular notice.

It is accordingly ordered that the judgment below be reformed, so as to allow appellant Richardson the credit to which he is entitled, as hereinbefore specified, and that, as so reformed, the judgment will be affirmed, at appellee’s cost.
      <§=3For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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


source: Caselaw Access Project

author: DUNKLIN, J.

license: Public Domain

text:
    NOWLIN et al. v. CLARY et al.
    (No. 8202.)

    (Court of Civil Appeals of Texas. Ft. Worth.
    May 29, 1915.
    Rehearing Denied June 26, 1915.)
    1. Htjsband and Wife <§=>274- — Community Property — Rights of Hexes — Conveyances in Satisfaction — Sufficiency of Evidence.
    In trespass to try title, evidence held sufficient to sustain finding of jury that deeds made by the plaintiff’s father to the children of his first marriage were accepted in full satisfaction and settlement of the rights of the grantees in the community estate of their parents.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 1026-1031; Dec. Dig. <§=>274.]
    2. Husband and Wife <§=>27‘L-Community Property — Rights ote1 Heirs — Equitable Division of Land — Sufficiency of Evidence.
    In trespass to try title, evidence held sufficient to sustain finding of jury that deeds of plaintiff’s father to the children of his first marriage made an equitable partition of the parents’ community estate between such children.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 1026-1031; Dec. Dig. <§=> 274.]
    3. Husband and Wife <§=>274 — Community Pbopebty — Rights of Heirs — Conveyances to Heirs — Presumption.
    Where a husband divided among his children by his first wife portions of the community estate of himself and such wife, the deeds were to be presumed to have been advancements to the children for their interests in such community estate.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 1026-1031; Dec. Dig. <§=>274.]
    4. Evidence <§=471— Opinion — Character of Conveyance.
    In trespass to try title by the child of a third marriage against the children by a first, testimony of a son by the first marriage that conveyances made by the father to the children of such marriage were intended as gifts to them, and were not accepted in full settlement of the children’s interests in the community estate of the parents, was inadmissible in evidence as being merely the opinion or conclusion of the witness, especially in view of his testimony that he never saw the deeds and never heard the father say he had made them.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2149-2185; Dec. Dig. <§=>471.]
    Appeal from District Court, Denton County; Chas. F. Spencer, Judge.
    Action by S. A. Nowlin against John Now-lin a.nd the unknown heirs of E. T. Clary. Judgment for plaintiff, and certain defendants appeal.
    Affirmed.
    J. A. Templeton, of Ft. Worth, and Lee Zumwalt, of Dallas, for appellants. Robt. H. Hopkins and Alvin C. Owsley, both of Den-ton, for appellees.

       Writ of error pending in Supreme Court.

   DUNKLIN, J.

This was a suit in trespass to try title instituted by S. A. Nowlin against the descendants of his father, Anderson Now-lin, by a former marriage, S. A. Nowlin being a son of a later marriage, and from a judgment in favor of the plaintiff, some of the defendants have appealed. -Cynthia Now-lin was the first wife of Anderson Nowlin, and both she and he died intestate. The defendants are children and grandchildren of that marriage. Anderson Nowlin during his first marriage acquired title to two tracts of land in Denton county, one consisting of 320 acres, the south one-half of the Elisha T. Clary survey, and the other being the John Maloney survey of 640 acres. One hundred acres of the latter survey were sold by Anderson Nowlin during his first marriage, so that at the date of the death of his first wife he owned the 320 acres of the Clary survey and 540 acres of the Maloney survey, both of which tracts were community property of himself and Cynthia Nowlin. The plaintiff, 5. A. Nowlin, and Thomas L. Nowlin were children of the last marriage of the said Anderson Nowlin, who died in 1888. On May 22, 1886, Anderson Nowlin made a deed of conveyance to the children of the last marriage to the land in controversy, consisting of 182 acres of the E. T. Clary survey. That deed was properly acknowledged and duly filed for record in the deed records of Den-ton county on November 24, 1886. The land so conveyed was the homestead of Anderson Nowlin during both of said marriages and up to the date of his death. The two sons by the last marriage were minors when their father died, and they continued to live upon the place with their mother until the date of her death, which occurred about four years prior to the institution of this suit. Plaintiff claimed title through that deed and a deed from his brother, Thos. L. Nowlin, of all his interest in the land, and also under the statutes of limitation of five and ten years. Pie further pleaded a settlement by Anderson Nowlin with all the children of his first marriage of their interest in the community estate of their parents by deeds of conveyance to them of different portions of the two tracts belonging to the community estate of their parents at the date of the death of the mother. Between the first marriage and the last marriage mentioned above, Anderson Nowlin was married to another wife, but that marriage was dissolved by divorce proceedings, and no children were born of it. The unknown heirs of E. T. Clary were also made parties defendant, by reason of the fact that the record of the deed from said patentee to the Clary survey had been destroyed by fire in the burning of the courthouse in Denton county several years ago. Judgment was rendered against those heirs, and no complaint is made of that judgment. The descendants of the first marriage of Anderson Nowlin claimed an interest in the property in controversy as heirs of Cynthia Nowlin.

The trial was before a jury upon special issues, which issues, together with the findings of the jury thereon, are as follows:

“Questions submitted by the court on his own initiative:
“(1) Was the property in controversy acquired by Anderson Nowlin and his wife, Cynthia Nowlin, during their lifetime? Ans. Yes.
“(2) Did Anderson Nowlin during his lifetime execute deeds to land to the children of his marriage with Cynthia Nowlin? If so, how much to each? Ans. John Nowlin 50 acres; Henry Nowlin 50 acres; Mrs. Benson 50 acres; Mrs. Boyd 81.7 acres; Mrs. Knight, 78 acres; Mrs. Bell Minor 72 acres.
“(3) Was the land which was conveyed by Anderson Nowlin to the children of himself and Oynthia given by him and accepted by them respectively in full satisfaction and settlement for their rights in and to the community estate of the said Anderson and Cynthia Nowlin? Ans. Yes.
“(4) If you have answered the question just above in the affirmative, state briefly the evidence on which you base your answer. Ans. Because they were permitted to select their land where it suited them best.
“(5) When did Anderson Nowlin and his third wife marry? Ans. In 1870.
“(0) What was the date of the deed from Anderson Nowlin to the plaintiffs in this suit, and its record? Ans. May 22,' 1S86.
“(7) Did the plaintiffs live upon said land and make improvements thereon until the filing of this suit? Ans. Yes.
“(8) During the time that the plaintiffs and their mother lived upon the land in controversy did they make it their home until the death of their mother, and do the plaintiffs still occupy the same as their home? Ans. Yes.
“(8A) Did the plaintiffs claim said land during all the time they lived upon it? Ans. Yes.
L “(9) During the occupancy of the plaintiffs of said land has any suit ever been filed by any one to interrupt the possession of the plaintiffs of said land? Ans. No.
“(10) During the time that plaintiffs lived upon said land have they been actually and visibly using, occupying, and enjoying the same? Ans. Yes.
“(11) Who has been paying the taxes upon said land during the time that plaintiffs have lived upon the same? Ans. Plaintiffs.
“(12) Did any of the defendants know that Anderson Nowlin had made a deed to the land in controversy to the plaintiffs in this suit until this suit was filed? Ans. Deed being of record, we answer, Yes.
“(12A) Did the defendants or any of them, ever make any claims to this land before this suit was filed? Ans. No.
“Additional issues submitted at request of plaintiff:
“(1) During the time that the plaintiffs and their mother lived upon the land in controversy did the plaintiffs claim the land as their own, or occupy the same by virtue of any right of their mother? Ans. They claimed it as their own.
“(2) During the time that plaintiffs and their mother occupied the land in controversy in whose name was the land claimed, and in whose name was the taxes thereon paid? Ans. Plaintiffs’.
“(5) Had the plaintiffs paid all the taxes assessed against the land in controversy since the death of their father, Anderson Nowlin? Ans. Yes.
“(6) Did Alice Porter and her husband, C. O. Porter, and Beacher Minor execute and deliver to the plaintiffs a quitclaim deed to their interest in the land in controversy? Ans. Yes.
“(8) When Anderson Nowlin convoyed the land to the children of himself and Oynthia Nowlin, did they accept said land so com eyed to them and acquiesce in the acts of Anderson Nowlin in making such conveyance? Ans. Yes.
“(12) Did H. R. Nowlin die before or after the death of his father, Anderson Notvlin? Ans. Afterwards.
“(13) When was Lillie Jadkson married? Ans. No direct evidence as'dates.
“(14) What relation is plaintiff A. M. Boyd, known as Ada Boyd, to Anderson Nowlin, deceased, and who was her mother? Ans. Granddaughter; her mother was Minnie Sigler.
“(16) Did the deeds made by Anderson Now-lin to the children and grandchildren of his first wife, Oynthia Nowlin, constitute a fair and equitable partition of the community estate of himself and his first wife, Cynthia Nowlin, as between him and the children of said marriage ? Ans. Yes.
“(17) After making the.deeds to the children of his first wife, Cynthia Nowlin, how much land did the said Anderson Nowlin have remaining?. Ans. 182 acres.
“(1) Were the deed records of Denton county, Tex., destroyed by fire? If so, when? Ans. In-1875.
“(2) Had Elisha T. Clary conveyed the land in controversy to R. H. Elliott prior to the destruction of the records of Denton county? Ans. Yes.
“(3) Did the defendants know that the plaintiffs were occupying and living upon the land in controversy after the death of their father? Ans. Yes.”

The assignments are addressed chiefly to the findings of the jury as being unsupported by the evidence. It is insisted that there was no evidence to support the findings by the jury in answer to issue No. 3 in the first series of issues that the deeds made by Anderson Nowlin to the children of the first marriage were made and accepted in full satisfaction and settlement of the rights of the grantees in and to the community estate of their parents, nor the finding of the jury in answer to issue No. 16 in the second series of issues that those deeds constituted a fair and equitable partition of said community estate between Anderson Nowlin and the children of his first marriage.

Attention is called to the answer to issue No. 4 in the first series of issues, wherein the jury were instructed to state briefly the evidence on which they based their answer that the deeds were made in full settlement of the claims of the children of the first marriage, and to which issue the jury responded, in effect, that they made their finding to issue No. S because the grantees in the deed were permitted to select their land where it suited them best. '

Attention is also called to the fact that those deeds which appear in the record do not purport to have been made for that purpose; some of those deeds reciting a consideration of love and affection and nominal sums of money paid in addition thereto. It would serve no useful purpose to discuss the evidence in full, but, after a careful consideration of the statement of facts, we have reached the conclusion that there is evidence sufficient to sustain the findings of the jury upon the issues mentioned above. John Nowlin, one of the children of the first marriage, was a witness on the stand. He spoke of the deeds from his father to the other children of the first marriage as deeds of gift. He further testified as follows:

“Of this 540 acres that was down on the creek there were three of the children, that got TO acres apiece of it. He gave the children their choice — to take 70 acres there, or 50 acres on the prairie. Those that took their part down on the creek they got morei land; they got 70 acres apiece; and those that took our part up on the prairie, we got 501 acres apiece. I sold my 50 acres to Pox for a song. Yes; I sold it to Fox. My father deeded it direct to Pox; he said I didn’t have to bother about the deed; that he would deed it to him. I took the land on the prairie in preference to that on the creek. It was not in 1S69, after the war, that he deeded it to me; my wife lived on it before the war. My father set it apart to me, and my wife lived on it, but he didn’t deed it to me. I went to the army. I went to war, and after I came back my father made the deed to the land to Pox when I sold it to him. At the time I went on it I took it to live on; he told me that he would give me that. * * * Those to take their part out of this timber land on the creek were William Minor, Arch Nowlin, and John Knight, I believe. The balance of the 540 acres on the creek was disposed of by my father some time after the war; he just let it go as he needed the money. When I came back and he made this division among the children, the balance of the land down on the creek he disposed of in some way. * * * Mary [a sister] married Bill Minor, and she took her part out of the timber land down on the creek. Jim died in the army without any heirs. Henry took his part out of the prairie land; he got 50 acres. Mrs. Benson took her part right west of Henry’s, on the prairie; she got 50 acres. De-lila [another sister], she married Knight; she took her’s out of the timber land down on the creek; she was dead, and it went to her children. Her children got 72 acres. Arch Knight got his out of the timber land; my understanding was that he got 70 acres; that is what they got out of the timber land. I got my 50 acres on the prairie. Yes; that left this 166 acres for the two younger children; that was all the land.”

O. S. Wilkins testified:

,“I know that the children of his first marriage got some land. I know the land that the other children got. It is just about the same — very little difference; if anything, it was better land, take it all over, than the boys got; it will average better. * * * It was down on Hickory creek. Part of the land down on the creek was better than the prairie land, and part of it wasn’t. * ® * On an average, I don’t suppose there is a great deal of difference. As to the values of the different tracts of'land back in the 60’s and 70’s, will say I don’t know; land wasn’t worth very much nowheres.”

The deed by Anderson Nowlin to Fox was dated in 1869; another deed was dated February, 1876; and another in March, 1882. It thus appears from the testimony of the witness John Nowlin that a division was made by his father among his children, and the presumption must be indulged that, at all events, the deeds so made to them must be presumed as advancements for their interests in the community property of their parents. Sparks v. Spence, 40 Tex. 697; Williams v. Emberson, 22 Tex. Civ. App. 522, 55 S. W. 595. Clearly, it would be inequitable as between the children of the first marriage and those of the second marriage to hold that those conveyances should not be charged against the interests that the children of the first marriage inherited in the community estate of their parents. Brown v. Elmendorf, 87 Tex. 56, 26 S. W. 1043.

The evidence shows that the Clary survey was upon the prairie, while the other survey was partially in a creek bottom. The fact, as testified to by John Nowlin, that the children of the first marriage were given their choice to .take 50 acres on the prairie or 70 acres out of the other tract, that some chose the prairie land and some chose the other, in addition to the testimony of Wilkins, in effect, that there was practically no difference in the value of the land deeded to the children, of the last marriage and the land deeded to the children of the first marriage, the further fact, as shown by the record, that the tract in controversy was supposed to contain only 166 acres until it was surveyed long after the death of Anderson Nowlin, and then for the first time found to contain 182 acres, in connection with the further fact that none of the descendants of the first marriage ever asserted any claim to the land in controversy until after the institution of this suit, we think sufficient to support the findings of the jury referred to above.

Error has been assigned to the refusal of the court to permit John Nowlin to testify that the several conveyances made by Anderson Nowlin to the children of the first marriage were intended as gifts to them, and were not accepted by them in full settlement of their interests in their mother’s estate. One of the objections which plaintiff offered to the testimony was that the same would be merely an opinion or conclusion of the witness, and we think that objection was valid, without regard to the merits of the further objection urged that it related to transactions or statements by Anderson Nowlin, deceased, in a suit between his heirs, within the meaning of article 8690, 3 Vernon’s Sayles’ Texas Civil Statutes; especially in view of the testimony of the same witness quoted already relative to the deeds made by Anderson Nowlin to the brothers and sisters of John Nowlin, in which the witness testified:

“I suppose he made them deeds to their 50 aeres. I never saw one of the deeds, and never heard him say that he did; I never saw a deed that was made.”

The proposed testimony of John Nowlin, at least so far as it related to the deeds to his brothers and sisters, would have been a mere guess or supposition and clearly inadmissible.

The foregoing conclusions render it unnecessary to discuss the further assignments presenting the contention that plaintiff failed to show title under the statutes of limitation, either of the five or ten years.

The judgment is affirmed.
      ©n^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BUCK, J.

text:
    SOUTHWESTERN TELEGRAPH & TELEPHONE CO. v. ANDREWS.
    (No. 8223.)

    (Court of Civil Appeals of Texas. Ft. Worth.
    June 12, 1915.
    Rehearing Denied July 3, 1915.)
    1. Telegraphs and Telephones <&wkey;G8 — Action for Damages — Mental Suffering — Relationship.
    The relationship of half-brother and half-sister, between one of whose expected death an attempt was made to notify plaintiff by telephone, was sufficiently close to authorize recovery for mental suffering from being prevented from attending her funeral, by reason of the telephone company’s negligent failure to transmit the call.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 69, 70; Dec. Dig. <&wkey;68.]
    2. Trial <&wkey;203 — Instructions—Defenses.
    It is the duty of the court, when requested, to give an affirmative charge on any defense as applied to the particular facts in the case.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 477-479; Dec. Dig. &wkey;203.]
    3. Trial <&wkey;260 — Instructions — Converse of Abstract Instruction.
    In an action for failure to transmit a telephone call attempting to notify plaintiff of the expected death of his half-sister, who died and was buried the next day, wherein the court had given an approved definition of the term “negligence,” and had instructed as to defendant’s duty to use reasonable diligence to place the plaintiff’s brother in communication with plaintiff, and that its failure to use such diligence would be negligence, and that the plaintiff had the burden of establishing his cause of action by a preponderance of the evidence, defendant’s requested instruction stating the converse of the abstract instructions given was properly refused.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. <®=o260'.]
    4. Corporations <&wkey;423 — Liability for Torts.
    A corporation is liable for the torts of its servants or agents, precisely as a natural person.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1692-1695; Dec. Dig. &wkey;423.]
    5. Appeal and Error <&wkey;1060 — Harmless Error — Misstatement of Law in Argument.
    In an action for failure to transmit a telephone call attempting to notify plaintiff of the expected death of his half-sister, the error of plaintiff’s attorney in stating that a telephone company owed a great deal higher duty than an individual, in view of the facts supporting a recovery and the amount of the verdict, and rule 62a for Courts of Civil Appeals (149 S. W. x)', declaring that no judgment shall be reversed for error, unless the appellate court believes that the error was such a denial of the appellant’s rights as was reasonably calculated to cause, and probably did cause, the rendition of an improper judgment, did not require the reversal of a judgment for plaintiff.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4135; Dec. Dig. <S&wkey;1060.]
    6. Telegraphs and Telephones <&wkey;68 — Action for Damages — Mental Suffering — Notice.
    In action for failure of a telephone company to transmit a call attempting to notify plaintiff of the expected death of his half-sister, the fact that the sender told the operator that plaintiff’s half-sister was dangerously sick and expected to die, and that it was a “rush call,” was sufficient to notify defendant of probable mental suffering from the failure to transmit it; and even if he only stated that it was a “sick message” it was notice of such probable mental suffering.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 69, 70; Dec. Dig. <®=»68.]
    7. Trial &wkey;>260 — Instructions—Requested Instructions.
    In an action for failure to transmit a telephone call attempting to notify plaintiff of the expected death of his half-sister, who died and was buried the next day, wherein the court charged that the jury might award such a sum as they might believe to be a reasonable compensation for the mental anguish suffered by plaintiff, and there was nothing to show that the jury considered any other measure of damages, defendant’s requested charge that the jury should not consider the plaintiff’s mental anguish from the fact of his half-sister’s death was properly refused, as covered by the charge given.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. &wkey;260.]
    8. Appeal and Error t&wkey;1039 — Harmless Error — Pleading.
    In an action for failure to transmit a telephone call attempting to notify plaintiff of the expected death of his half-sister, who died and was buried the next day, any defect in the petition, in that it did not allege how plaintiff could have gone to the burial, in view of the fact of a former trial in which the facts were fully developed, and where there was no complaint of surprise at plaintiff’s evidence, was harmless.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4075 — 4088; Dec. Dig. <&wkey;> 1039.]
    9. Telegraphs and Telephones &wkey;>70 — Mental Suffering — Action for Damages — Set-Off.
    In such action the defendant had no right to set off against any sum that the jury might find plaintiff entitled to as compensation for his mental suffering the expenses that plaintiff would have reasonably incurred if he had attended the funeral.
    [Ed. Note. — Eor other cases, see Telegraphs and Telephones, Cent. Dig. §§ 72, 73; Dec. Dig. <&wkey;70.]
    Appeal from District Court, Clay County; Edgar Scurry, Judge.
    Action by John V. Andrews against the Southwestern Telegraph & Telephone Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    A. P. Wozencraft, S. P. English, F. W. Wozencraft, and J. D. Frank, all of Dallas, and J. C. Chesnutt, of Henrietta, for appellant. Arnold & Arnold, of Graham, and Leslie Humphrey, of Henrietta, for appellee.

       writ o£ error pending in Supreme Court.

   BUCK, J.

This suit was instituted by John V. Andrews against the Southwestern Telegraph & Telephone Company for recovery of damages for mental suffering. This is the second time this case has been before us, the opinion on the first appeal being found in 169 S. W. 218. As a recitation, of the pleadings and short statement of the facts are given in that opinion, it will be unnecessary to repeat here so much as therein given, but we will set out such pleadings and evidence in the course of this opinion as may.be deemed necessary for a clear understanding of the issues involved and the questions discussed.

In its first assignment, appellant complains of the failure of the court to give a requested peremptory instruction, on the ground that, the deceased being only a half-sister to plaintiff, such relationship is too remote to constitute a basis of recovery. Having passed upon this issue adversely to appellant in the former appeal, and having no reason to alter the conclusion therein reached, this assignment is overruled.

The second assignment complains of the refusal of the court to give special charge No. 2, requested by defendant, which, stripped of its formal parts, reads as follows:

“You are instructed that the defendant, the Southwestern Telegraph & Telephone Company, or its employes would not be guilty of negligence in handling the telephone call for John Andrews complained of if said company and its employes used such care in handling same as an ordinarily prudent person would have used under the same or similar circumstances, and unless you believe from the evidence that the defendant or its employes, in handling such call, did not use such care as an ordinarily prudent person would have used under the same or similar circumstances, you must answer ‘No,’ to the special issue No. 1, submitted to you in the court’s main charge.”

While it is the duty of the court to give, when requested, an affirmative charge on any defense as applied to the particular facts in the case, it is not incumbent upon the court to give in special charge the converse of every abstract proposition of law submitted in the main charge. The court, in the main charge, had given an approved definition of the term “negligence,” and had instructed the jury as to defendant’s duty to use reasonable diligence to place the plaintiff’s brother, Will Andrews, at Wills Point in telephone connection with the plaintiff at Henrietta on September 16, 1913, and that the failure to use such diligence would be negligence under the law. And the court had further instructed the jury that the burden of proof was upon the plaintiff to establish his cause of action by a preponderance of the testimony, and that if he had failed to do so the jury would answer issues 1, 2, and 3 in the negative. We think the court’s charge was sufficient, and the second assignment is overruled.

The third assignment is directed to alleged improper remarks by one of the attorneys for plaintiff in his closing argument, shown by bill of exception as follows:

“ ‘Will you run over the court’s charge with me a few minutes? He tells you that negligence is a failure to do that which an ordinarily prudent person would do under the same or similar circumstances. A telephone or railroad company owes a good deal higher duty than an individual.’ Whereupon counsel for defendant objected, for the reason that plaintiff’s counsel had no right to make such statement to the jury, because it is not the law that a railroad company and a telephone company owe a higher duty than an individual does. Whereupon counsel for plaintiff continued: ‘Gentlemen of the jury, if that isn’t the law, then I don’t know it.’ Whereupon counsel for defendant, still addressing himself to the court, said: ‘Will your honor please rule on our objection?’ Whereupon the court said: ‘Your objection is overruled.’ ”

This bill of exception was approved, with the following expression by the trial judge:

“The argument complained of was made in reply to an argument made by one of the attorneys for the defendant, in which he said: ‘Gentlemen, you would not think of holding an individual liable for the kind of negligence shown in this case, and you should not hold this defendant.’ ”

Appellant urges that it is the law that a corporation is liable for the torts committed by its servants or agents precisely as natural persons are, and we recognize that this contention is supported by the authorities of this state. As to what will constitute any given degree of care under any given set of circumstances will depend upon the circumstances shown. And we do not think that a telephone company owned by as corporation would be charged with any higher duty to its patrons than one owned by an individual. But, while admitting the inaccuracy of the statement of the law contained in appellee’s counsel’s argument, yet we do not feel justified in concluding that any probable injury resulted to the defendant company because thereof. We think the facts support a recovery, and that the amount of the judgment is not excessive under the evidence shown, and, under rule 62a (149 S. W. x), the assignment is overruled.

What we have said in reference to the third assignment will suffice as to the fourth, which complains of the verdict being excessive under the facts of this case.

The fifth assignment complains of the failure of the court to give the following requested special issue:

■“In connection with the call for John Andrews complained of, did Will Andrews tell the operator at Wills Point who was sick?”

While Will Andrews testified that, when he put in the call at the defendant company’s office at Wills Point for Eis brother, John Andrews, at Henrietta, he told the operator that John Andrews’ sister was dangerously sick and expected to die, and told her that it was a “rush call,” the operator, Miss Grace Norwood, denied that Will Andrews gave her such information, but stated that he told her that it was a “sick message,” but that he did not tell her who was sick. In the ease of Western Union Telegraph Co. v. Adams, 75 Tex. 531, 12 S. W. 857, 6 L. R. A. 844, 16 Am. St. Rep. 920, our Supreme Court said:

“It is well known to the public, and cannot be unknown to telegraph companies, that the utmost brevity of expression is cultivated in correspondence by telegraph. It is well known that that mode of communication is chiefly resorted to in matters of importance, financially and socially, requiring great dispatch. When such communications relate to sickness and death there accompanies them a common-sense suggestion that they are of importance, and that the persons addressed have in them a serious interest. It would be an unreasonable rule, and one not comporting with the uses of the telegraph, to hold that the dispatcher will be released from diligence unless the relations of the parties concerned, as well as the nature of the dispatch, are disclosed. When the general nature of the communication is plainly disclosed by its terms, instead of requiring the sender to communicate to the unwilling ears of the busy operator the relationship of the parties concerned, a more reasonable rule will be, when the receiver of the dispatch desires information about such matters, for him to obtain it from the sender, and if he does not do so to charge his principal with the information that inquiries would have developed.”

In W. U. Tel. Co. v. Riviere, 174 S. W. 650, where a telegraph message was sent reading, “Come on first train. May pass away at any moment,” and signed “Mrs. R. C. Wallis,” it was held by the Court of Appeals for the Third District that the message disclosed on its face enough to put the telegraph company on notice that some person was ill, and that, although the message did not mention the name of the person who was ill, yet the company was not thereby relieved of liability for delay. The opinion, after citing the Adams Case, supra, and Tel. Co. v. Kirkpatrick, 76 Tex. 217, 13 S. W. 70, 18 Am. St. Rep. 37, and Tel. Co. v. Carter, 85 Tex. 580, 22 S. W. 961, 34 Am. St. Rep. 826, says:

“The fundamental doctrine and underlying principle upon which the Adams Case rests is the doctrine of notice resulting from knowledge of facts sufficient to put a prudent person upon inquiry; and therefore, when a message indicates upon its face that it relates to serious illness and probable death, it would seem, upon principle, to be sufficient to indicate to the telegraph company that the message was sent in order to give some person an opportunity to come ' to the bedside of the person who was ill. Who that person might be would, in the nature of things, be immaterial to the telegraph company; but if it desired to know it could as readily ascertain that fact as it could the relationship between the addressee named in the message and the person referred to as being ill.”

Appellant, in attempting to distinguish between the facts disclosed and the plaintiff’s pleadings in the instant case and those in the Riviere Case, urges that in this case the plaintiff did not plead that such facts were shown as would have put the company upon inquiry, by means of which it would have learned the other facts, and that the evidence fails to show that if inquiry had been made by the operator of the telegraph company that Will Andrews would have been willing to disclose the necessary facts. It is sufficient answer to this argument to say, that in the instant case plaintiff did plead that his brother, Will Andrews, informed the agent of the relationship of brother and sister existing between plaintiff and the sick person, and that the latter was dangerously sick, in fact in a dying condition, and that these allegations in the petition are amply supported by the testimony of Will Andrews. The fifth assignment is overruled, and also the sixth, which involves practically the same question.

The seventh assignment, directed to the failure of the court to submit special issue No. 6, which reads as follows:

“What information, if any, with respect to the nature and purpose of the call for John Andrews did Will Andrews give the operator at Wills Point?”

• — is overruled, because even the defendant’s witness, Miss Norwood, testified that she was informed that it was “a sick message,” and we hold that such information was sufficient to put the company upon notice of the further facts which would have been disclosed upon inquiry.

In the eighth assignment, complaint is made to the admission, over objection, of the testimony of plaintiff that on the night of September 16, 1913, he had two telephone conversations with the defendant’s operator at Henrietta, one about 8:30 p. m. and the other after lodge, in which he informed the operator that he was expecting a long distance call from his sister, who was sick, and the operator both times told him there was no call for him. Eor the reasons given in our former opinion as to the admissibility of this testimony, this assignment is overruled.

The ninth assignment urges error in the failure of the court to give the following requested charge:

“In connection with special issue No. 3 (four) of the court’s main charge, you are instructed that you must not consider the grief or mental anguish, if any, which plaintiff suffered by reason of the fact of the death of Mrs. Stone.”’

While this special issue would have been properly submitted, yet there is nothing in the record to indicate that the jury, in determining the amount of damages assessed, to wit, $500, considered any measure of damages other than that submitted by the court in said fourth special issue, to wit, “what sum you believe would be a reasonable compensation for the mental anguish, if any, suffered by plaintiff by reason of his not being able to attend the funeral of Mrs. Alme-da Stone.” We do not think there is presented reversible error in the failure to submit the requested special issue, nor of the failure to give the kindred one set out under the tenth assignment.

The special issue, “Has John Andrews suffered any mental anguish by reason of not being at the funeral of Mrs. Stone?” was tendered by defendant, and to the failure to give the same the eleventh assignment is directed. It will be noted that in submitting the measure of damages, special issue No. 4, the court fixed it at such sum as the jury might believe would be a reasonable compensation “for the mental anguish, if any, suffered by plaintiff,” etc. As will be seen, the court did not assume that plaintiff did suffer mental anguish by reason of his failure to be present at his sister’s funeral, but left to the jury the questions, (1) whether plaintiff suffered any mental anguish, and (2) if he did suffer mental anguish by reason of said'failure, what sum would reasonably compensate him therefor. We believe the issue presented by the requested charge was covered in the court’s main charge.

We do not think there is any merit in the complaint made in appellant’s twelfth assignment, and it is overruled.

The thirteenth assignment is directed to the action of the court in overruling defendant’s special exception to paragraph 5 of plaintiff’s original petition. It is specially urged that plaintiff’s petition was defective, as it nowhere alleged how plaintiff could have gone to the place where his sister was to be buried, or on what railroad train or railway he would have left Henrietta, in what direction he would have gone, what connection, if any, he would have made to continue his journey to Wills Point, etc. In view of the fact that a former trial of this case had been had, in which the facts were rather fully developed, and that, therefore, the defendant was informed as to what would be the contention and evidence of the plaintiff upon these points, to the failure to set out which the special exception is leveled, we do not believe that appellant has been denied any substantial right, or suffered any material injury. Certainly, none is alleged. The rule requiring fullness and particularity of pleading is founded upon the right in the adverse party to be advised of evidence likely to be introduced under such pleadings, so that he may be prepared to meet it. Even in its amended motion for new trial, defendant makes no complaint that it was surprised by plaintiff’s evidence as to these matters, or was not prepared to meet it. No specific injury being alleged or shown we are justified in assuming that none was suffered. The assignment is overruled.

In its fourteenth assignment, appellant presents a novel proposition, i. e., the right by the telephone company of a set-off, or a reduction, against any sum that the jury might find the plaintiff entitled to as compensation for his mental suffering, of the amount of expense that the plaintiff would have reasonably incurred if he had attended his sister’s funeral. To the failure of the court to submit the issue as to what such expense would have been, the assignment is directed. The authorities cited in support of this proposition, to wit, that where merchandise, goods, or live stock, are lost in transit, and the freight or other transportation charges have not been paid, the plaintiff could only recover the reasonable value of the goods or'live stock lost less the amount of freight or other charges, which, because of the loss of the shipment he did not pay we do not believe to be in point, or that the two propositions are analogous. Moreover, the evidence as to what this expense would have been is uncontroverted, to wit, $12 to $15.

We do not think that the questions asked of plaintiff and of Will Andrews, as presented in the fifteenth and sixteenth assignments, are subject to the objections made that they were leading and suggestive, nor do we find any reversible error shown in the seventeenth and last assignment.

Judgment affirmed.
      <&wkey;>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      jgzsalTor other eases see same topic and KEY-NTJMBBR in all Key-Numhered Digests and Indexes


text:
    GULF, C. & S. F. RY. CO. v. BOGY.
    (No. 8212.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    June 5, 1915.
    On Motion for Rehearing, June 26, 1915.)
    1. Evidence <&wkey;471 — Opinion — Seasonable Time for Bail way Bun.
    In an action against a carrier for damages by delay to a shipment of cattle in transit, the admission of testimony of the plaintiff as to what, in his opinion, was a reasonable time for the run was erroneous, since what is a reasonable time to make a given railway trip is a mixed question of law and fact, for the jury, under proper instructions.
    [Ed. Note. — -For other cases, see Evidence, Cent. Dig. §§ 2149-2185; Dec. Dig. <&wkey;>471.]
    2. Appeal and Error <S&wkey;1054 — Harmless Error — Erroneous Admission op Evidence —Trial by Court.
    Where the court, in an action against a carrier of live stock for damages caused by delay in transit, erroneously admitted plaintiff’s opinion that the time was unreasonable, and where the record showed no basis, other than such testimony for a finding of unreasonable delay, the judgment being for the full amount prayed, the error was not harmless.
    [Ed. Note. — For other causes, see Appeal and Error, Ceut. Dig. §§ 4185, 4186; Dec. Dig. &wkey;> 1054.]

      3. Careiers &wkey;>219 — Carriage of Live Stock —Notice of Loss — Connecting.Carriers.
    Notice to one of four connecting carriers, within time provided by contract, of loss caused a shipper of live stock by delay in transit, was notice to all of the carriers.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 950, 951; Dec. Dig. <&wkey;219.]
    On Motion for Rehearing.
    4. Evidence <&wkey;471 — Opinions—Usual Time of Railway Run — “Reasonable Time.”
    In an action against a carrier of live stock for damages caused by delay in transit, evidence of a duly qualified witness as to what was the usual or customary time required to make the railway run is admissible, such testimony not being matter of opinion infringing'the province of the jury, as is testimony as to the reasonable time for the run, since “usual time” is a matter of fact, while “reasonable time,” the time necessary under the circumstances to do conveniently what the contract or duty requires should be done in a particular case, a question of law depending on the subject-matter and situation of the parties, is a mixed question of law and fact evidence as to which is an expression of the opinion of the witpess on a matter properly for the jury (citing Words and Phrases, Reasonable Time).
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2149-2185; Dec. Dig. &wkey;471.]
    5. Appeal and Errór <&wkey;1054 — Reversal-Consideration of Erroneous Testimony.
    Where it affirmatively appeared by bill of exception that evidence erroneously admitted was considered by the court, although the case had been tried without a jury, the admission was ground for reversal, since even where there is other evidence in the record to sustain the finding of the court upon any particular issue, if it affirmatively appears from the court’s findings of fact or the bills of exception that objectionable testimony was considered, the case will be reversed.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4185, 41S6; Dec. Dig. <&wkey;> 1054.]
    6. Carriers <@=»228 — Carriage of Live Stock —Delay in Transit — Sufficiency of Evidence.
    In an action against a carrier of live stock for delay to a shipment in transit, evidence held insufficient to show any unreasonable delay.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 957-960; Dec. Dig. <@¿3228.]
    Appeal from Wise County Court; E. M. Allison, Judge.
    Action by I. F. Bogy against the Gulf, Colorado & Santa Fé Railway Company. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    McMurray & Gettys, of Decatur, and Terry, C'avin & Mills, of Galveston, for appellant. H. E. Dobdell, of Bridgeport, and Spencer & Shults, of Decatur, for appellee.
   BUCK, J.

We think that the court erred in admitting, over defendant’s objection, the following question propounded by plaintiff’s counsel to plaintiff, and the answer thereto: “What, in your opinion, is a reasonable time to run from Jasper to Bridgeport?” to which plaintiff answered, “Thirty hours.” What constitutes a reasonable time to make. a given trip is a mixed question of law and fact, and one of the questions which the jury, under proper instructions from the court, were to decide in this case, and it is not for a witness to invade the province of the jury in passing thereupon. Appellee urges that, even though it be conceded that it was error to permit this question to be asked and answered, yet, the trial being before the court, it was harmless, and that there was sufficient evidence before the court, independent of this testimony, to sustain the judgment. The plaintiff alleged rough handling and unreasonable delays in the shipment of 36 head of grown cattle and 7 calves from Jasper to Bridgeport, by reason of which 4 of the cows died and all of the cows were injured and depreciated in value. The court gave plaintiff a judgment for the full amount asked for, and all the evidence would sustain, to wit, $380. Plaintiff testified that the market value at Bridgeport of the cows, if transported with ordinary care and in due time, was $35 each, or $140 for the four which died; that the other 32 head were depreciated to the amount of $7.50 each, or $240, making, the full amount prayed for. Our attention has not been directed to, nor do we find, any other evidence tending to show what was the usual and customary time to make this run of 333 miles. Therefore we must conclude, both from the action of the court in overruling the timely and well-taken objection to the evidence, and the absence in the record of any other basis for a finding, that there were unreasonable delays en route; that very probably the court gave full weight to this improperly admitted testimony. Hence the assignment must be sustained. Wagoner v. Ruply, 69 Tex. 700, 7 S. W. 80; Moore v. Kennedy, 81 Tex. 144, 16 S. W. 740.

In view of another trial, we think that the trial court did not err in holding that the notice to one of the four defendant railway companies, within the time provided in the shipping contract, of the loss sustained, was notice to all of the connecting carriers. The notice to the Chicago & Rock Island Railway Company was notice to each of appellants, Gulf, Colorado & Santa Fe Railway Company and Texas & Pacific Railway Company. Article 31, Vernon’s Sayles’ Tex. Civil Statutes; Railway Co. v. Itule, 172 S. W. 1123; T. & P. Ry. Co. v. Townsend, 49 Tex. Civ. App. 438, 108 S. W. 760. We think that plaintiff’s petition was good as against the special exception urged, to the overruling of which the first assignment is directed. In the third assignment error is urged to the admission, over objection, of the following question to plaintiff and answer: “What, in your opinion, was the difference in the value of the 32 head that lived in the condition they did arrive and in the condition they would have arrived if they had had a reasonable run without any delay or rough handling?” —to which the witness answered, “$7.50 per head.”

While, as limited by the propositions under this assignment, we are inclined to think that no reversible error is shown, we suggest that upon another trial the question should he differently framed, as in the present form it seems to be subject to the objection raised in the first assignment discussed.

Since in the court below, judgment was rendered for defendants Chicago, Rock Island & Gulf Railway Company, and Texas & Pacific Bailway Company, and against the defendants Gulf, Colorado & Santa Fe Railway Company, the Texas & Gulf Railway Company, and the last two companies alone appealed, and no complaint is made as to the judgment in favor of the two first-named companies, the judgment as to such will remain undisturbed, but be reversed as to the appellants, and the cause remanded, and it is so ordered.

Beversed and remanded.

On Motion for Kehearing.

Appellee, in urging his motion for rehearing, cites Railway v. Drahn, 163 S. W. 330, Railway v. Gray, 145 S. W. 729, and Railway v. Gunter, 44 Tex. Civ. App. 480, 99 S. W. 152, in support of his contention that this court erred in sustaining the assignment to the admission, over objection, of the following question propounded to plaintiff and his answer thereto:

“Q. What, in your opinion, is a reasonable time to run from Jasper to Bridgeport? A. Thirty hours.”

In the cases cited the question as to what would constitute “a reasonable time” for the run was not asked. In the Drahn Case, opinion by Justice Speer of this court, the witness testified “as to the usual and customary time,” which character of testimony is admissible where the witness shows himself qualified. In Railway v. Davidson, 127 S. W. 895, opinion by Chief Justice Conner, the witness testified as to the time “usually-made” between the given points. In Railway v. Meyer, 155 S. W. 309, cited by appel-lee, the witness testified to the time required for “a good, ordinary run.” There is a marked difference in the import of the question as to what would constitute “a reasonable time” for a good run and the time “usually” or “ordinarily,” or “customarily,” taken. The first is an expression of opinion and conclusion of the witness upon a mixed question of law and fact and upon a question of fact to be found by the jury; the second a statement of fact. “Keasonable time” is defined to be:

“So much time as is necessary, under the circumstances, to do conveniently what the contract or duty requires should be done in a particular case. * * * In determining what is a reasonable time or an unreasonable time, regard is to be had to the * * * facts of the particular case. * * * A reasonable time, when no time is specified, is a question of law, and depends on the subject-matter and the situation of the parties.” Words and Phrases (citing Colfax County v. Butler County, 83 Neb. 803, 120 N. W. 444).

The distinction between “reasonable time” and “usual or customary time” as used in this connection, we do not think, as appellee urges, is “technical and shadowy,” but is a distinction substantial, and well established by the authorities.

But appellee urges that, inasmuch as this cause was tried before the court, it will not be presumed that the court considered the evidence complained of, or that appellant suffered any injury by its improper admission. Defendant’s bill of exception No. 1, directed to the admission of this testimony, duly approved by the court, states that:

“Said answer was thereupon considered by the court as part of the evidence authorizing and supporting the judgment rendered.”

Thus, it affirmatively appears that the court did consider this testimony. Even where there is other evidence in the record to sustain the finding of the court upon any particular issue, if it affirmatively appears from the record, i. e., from the court’s findings of fact or the bills of exception, that the court did consider the objectionable testimony, the case will be reversed. Neitch v. Hillman, 29 Tex. Civ. App. 544, 69 S. W. 494; Gaither v. Lindsey, 37 Tex. Civ. App. 149, 83 S. W. 225; Railway v. Brashears, 91 S. W. 594.

In answer to the statement in our original opinion that “our attention has not been directed to, nor do we find, any other evidence tending to show what was the usual and customary time to make this run of 333 miles,” appellee refers us to and quotes from the testimony of plaintiff as to “a tie-up” overnight at San Augustine of the train containing his cattle, and his testimony that “the stop at San Augustine was what injured them.” There is nothing in the record to show that the stop overnight at San Augustine was not necessary, or was not usual and customary, or in the course of the regular schedule for the movement of the train in question. While it might be urged that the burden of proof was on the defendant to explain the cause of such delay, the complaint made by appellee to the conductor at the time was not because of the delay, but because the conductor would not permit the cattle to be unloaded, watered, and fed.

But even though it be conceded that this other testimony is proof that an unreasonable time was taken in transporting the cattle, which we question, yet since it affirmatively appears, as before stated, that the court did consider the inadmissible testimony, we do not feel justified in concluding that our former judgment was erroneous.

Motion for rehearing overruled.
      {gr^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <g^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    TEXAS CENT. R. CO. et al. v. CLAYBROOK et ux.
    (No. 8183.)

    (Court of Civil Appeals of Texas. Ft. Worth.
    May 15, 1915.
    Rehearing Denied June 26, 1915.)
    1. Carriers &wkey;5318 — Personal Injuries— Sufficiency of Evidence.
    Evidence in an action against a carrier for personal injury from alleged negligence in carrying her beyond her destination without giving her time to alight, and in causing her to alight where the ground was uneven, so that the stool on which she stepped tilted and caused her to fall, held sufficient to sustain a verdict for plaintiff.
    [Ed. Note. — E'or other cases, see Carriers, Cent. Dig. §§ 1270, 1307-1314; Dec. Dig. &wkey; 318.]
    2. Evidence &wkey;U27, 477 — Hearsay—Complaints.
    In ah action against a carrier for personal injury, testimony of plaintiff’s witnesses that when they called on plaintiff, pending the suit, and in the absence of any agent of the defendant, plaintiff “looked awful bad, that she was down in bed,” and that plaintiff complained of her head, hip, and thigh, was admissible.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 377-382, 2237-2241; Dec. Dig. &wkey;127, 477.]
    3. Trial <&wkey;85 — Objection—Evidence Admissible in Part.
    An objection to evidence as a whole, which was admissible in part, was properly overruled.
    [Ed. Note. — For other eases, see Trial, Cent. Dig. §§ 222, 223-225; Dec. Dig. &wkey;85.]
    4. Appeal and Error <3=^1052 — Harmless Error — Admission of Evidence.
    An objection to plaintiff’s testimony, in an action against a carrier for personal injury, as to the cause of certain pains which she claimed to have suffered thereafter, on the ground that she had not qualified as an expert or otherwise, was without merit, where her testimony to the same facts was admitted at another point without objection by appellant.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4171^4177; Deo. Dig. <&wkey;> 1052.]
    5. Appeal and Error &wkey;>1033 — Error in Favor of Appellant.
    Error in an instruction could not be reversible, where it was favorable to the appellant.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4052-4062; Dec. Dig. <&wkey;> 1033.]
    6. Appeal and Error <&wkey;216 — Questions Raised — Request for Instruction.
    Where an instruction did not cover all the issues, the appellant could not complain thereof, in the absence of a request for a further instruction.
    [Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. <&wkey;>216; Trial, Cent. Dig. § 627.]
    7. Trial &wkey;>260 — Instructions—Requests.
    In an action against a carrier for personal injury, alleging negligence in carrying her past her station and in stopping at uneven ground, so that a stool placed for her to step on tipped and caused her to fall, where the defendant’s evidence showed that plaintiff’s trip had been short and made to visit a relative, that she sustained no fatigue or worry by reason of the trip, although she was crying when the train reached her station, in view of instruction that plaintiff could not recover for injuries not caused by defendant’s negligence, the refusal of defendant’s requested instruction that if plaintiff’s health after the accident was worse, but that such decline was due to the strain or worry of the visit and her journey back, and not to defendant’s negligence, she could not recover, was not reversible error.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. &wkey;260.]
    Appeal from District Court, Bosque County; O. L. Lockett, Judge.
    Action by Joseph E. Claybrook and wife against the Texas Central Railroad Company and another. Judgment for plaintiffs, and defendants appeal.
    Affirmed.
    C. C. Huff,-of Dallas, W. E. Speel, of Waco, and H. J. Cureton, of Meridian, for appellants. S. C. Padelford, of Cleburne, and James M. Robertson, of Meridian, for appel-lees.

       writ o£ error pending in Supreme Court.

   DUNKLIN, J.

This suit was instituted by Joseph E. Claybrook and wife, Mrs. Mattie Claybrook, ■ against the Texas Central Railroad Company and the Missouri, Kansas & Texas Railway Company, to recover damages for injuries alleged to have- been sustained by Mrs. Mattie Claybrook while alighting from a passenger train at the town of Fowler, Tex., and, from a judgment in favor of the plaintiff against both railway companies, the defendants have appealed.

The evidence shows that, upon the occasion in controversy, Mrs. Claybrook boarded a passenger train at the town of Walnut Springs for a trip to Fowler; that upon reaching the latter station the train did not stop for a sufficient length of time to enable her to alight therefrom, the conductor having overlooked the fact that that was her destination, but, upon discovering the oversight, the train was brought to a stop about 100 yards from the station of Fowler, and at that place Mrs. Claybrook alighted from the train. According to evidence introduced, by plaintiffs, the ground upon which a stool was placed for her to step upon was uneven, and by reason of that fact the stool tilted and caused her to fall when she stepped upon it, and as a result of such fall she sustained personal injuries. According to other testimony, the employés of the railway company, who undertook to assist her to alight, failed to render proper assistance after inviting her to alight.

The basis of the claim for damages was a charge of negligence on the part of the defendants in carrying Mrs. Claybrook beyond her destination without giving her sufficient time to alight therefrom at that place, in causing her to alight at a place where the ground was uneven, which condition of the ground caused the stool upon which she stepped to turn, and in failing to render her proper assistance while alighting.

The evidence shows without conflict that, prior to the occasion in controversy, Mrs. Claybrook had been in ill health, had been a sufferer from epilepsy, neurasthenia, and catarrh of the stomach, and that three surgical operations had been performed upon her for certain female troubles.

Complaint is made of the action of the court in refusing to give to the jury a requested peremptory instruction to return a verdict in favor of the defendants. Appellants further insist that the verdict of the jury was contrary to the evidence. In support of the assignments presenting those two contentions, it is insisted that the evidence conclusively showed that, prior to the injury, Mrs. Claybrook was an invalid and physical wreck; that one of her family physicians, who had been treating her, had pronounced her a confirmed and incurable invalid; that Dr. Scott, who had also been one of her attendant physicians, and who had performed an operation, examined her again more than eight months after the accident and found that the organ of her body for which he had performed an operation before the alleged accident was then in a normal condition; that after the accident there had been no increase of her troubles other than those that came as a natural consequence of her prior ills; and that the only injuries shown by any testimony consisted of slight bruises about her ankles, sustained while alighting from the train, which were of little or no consequence at best.

We deem it unnecessary to discuss the evidence in detail, for, after a careful examination and consideration of the testimony shown in the statement of facts, we have reached the conclusion that, while the testimony tended strongly to support the contentions noted above, we have found controverting testimony sufficient to sustain the verdict upon the issue of liability, and therefore overrule the two assignments now under discussion.

The alleged accident occurred during the month of January.

Mrs. Mary Newsome, a witness for the plaintiff, testified as follows:

“After she was hurt in January I did not see her until in July, and she was mighty bad then, and was down in bed, and seemed to be suffering pretty bad. She told me all about how bad she felt, and she looked awful bad.”

Mrs. Oldham, another witness for the plaintiff, and a sister of Mrs. Claybrook, testified as follows:

“I never saw my sister after she was hurt at Fowler until in August following. She was in bed and suffering with as much pain as any one could be suffering with and live. She complained of her head, hip, thigh, back, and was hurting all over. She certainly was suffering, and said so at the time.”

To the testimony of both of those witnesses, appellants objected at the time of its introduction on the ground that the same was hearsay, self-serving, and purported to detail complaints by Mrs. Claybrook during the pendency of the present suit and in the absence of any agent of the defendants. The testimony quoted of each of said witnesses was objected to as a whole. The testimony of Mrs. Newsome that Mrs. Claybrook “looked awful bad, that she was down in bed,” and the testimony of Mrs. Oldham that Mrs. Claybrook complained of her head, hip, and thigh, clearly was admissible; and, even though it should be held that other portions of the testimony of the two witnesses was subject to the objections urged, that would not furnish any ground for sustaining the assignments addressed to the action of the court in overruling the objections. Jamieson v. Dooley, 98 Tex. 206, 82 S. W. 780; G., H. & S. A. Ry. Co. v. Gormley, 91 Tex. 393, 43 S. W. 877, 66 Am. St. Rep. 894.

By another assignment complaint is made of the admission of certain testimony of Mrs. Claybrook herself, consisting of an opinion given by her as to the cause of certain pains which she claims she suffered after the alleged accident. Appellants’ objection to that testimony was that the witness had not qualified as an expert or otherwise to give such an opinion. This assignment is overruled for the reason that we find, in the statement of facts, testimony to the same effect by the same witness which was admitted without any objection on the part of the appellants, so far as shown by this record. Wallis v. Schneider, 79 Tex. 479, 15 S. W. 492; F. W. & D. C. Ry. Co. v. Harlan (Civ. App.) 62 S. W. 971; I. & G. N. Ry. Co. v. Quinones (Civ. App.) 81 S. W. 757.

Error is assigned to the following instruction contained in the court’s charge:

“If you believe from the evidence that the defendants’ employés in charge of said train exercised that high degree of care for the personal safety of the plaintiff Mrs. Claybrook in alighting from said train which a very cautious and prudent person would have exorcised under the same circumstances, then you will find that they were not guilty of negligence, and your verdict should be for the defendants.”

The criticism addressed to this instruction is that it excludes the issue as to whether or not plaintiff was injured as a result of alighting from the train, upon which issue the testimony was sharply conflicting. The instruction was in favor of the defendants, and it could not be reversible error for that reason. If it did not cover all the issues, then appellants would be in no position to complain, in the absence of a request for a further instruction. Yellow Pine Oil Co. v. Noble, 100 Tex. 358, 99 S. W. 1024; C., R. I. & G. Ry. Co. v. Johnson, 101 Tex. 431, 108 S. W. 964; Abilene L. & W. Co. v. Robinson (Civ. App.) 146 S. W. 1052.

Appellants requested an instruction to the jury, in effect, that if they should find that the condition of Mrs. Claybrook’s health after the accident was worse than it was before, but that such decline was due to the strain, or worry, if any, of the journey, first to Iredell and Walnut Springs, and then back to Fowler, and not due to any negligence on the part of the employés of the defendants, then a verdict should be returned in favor of the defendants, regardless of any issue of negligence on the part of Mrs. Claybrook. The refusal of that instruction is assigned as error; that contention being predicated upon the well-established rule announced in M., K. & T. Ry. Co. v. McGlamory, 89 Tex. 635, 35 S. W. 1058, and St. L. S. W. Ry. Co. v. StoneDe Lane (Civ. App.) 156 S. W. 906, in effect, that in such cases as this the defendant has a right to an affirmative presentation of any fact or group of facts whic-h would constitute a defense to the plaintiff’s suit, if there is evidence tending to establish such fact or group of facts. The evidence shows that the trip referred to in the instruction was short; that it was made for the purpose of a visit to a relative, upon the conclusion of which she returned to the station of Fowler. No witness testified to any fatigue suffered by Mrs. Claybrook by reason of the trip; on the contrary, the testimony of Mrs. Claybrook and of others who related circumstances of other visits tended to rebut any assumption that she sustained any fatigue or worry by reason of the trip mentioned in the requested instruction. The testimony of some of the witnesses for defendants that Mrs. Claybrook was crying when her train reached Fowler we do not think reasonably tended to show that her tears were due to any fatigue or worry on account of the trip. Furthermore, the court expressly told the jury that in no event could plaintiff recover damages for any injuries, except those which were caused by the negligence of the defendants’ employés.

Under the circumstances related, we are of the opinion that there was no reversible error in the refusal of the requested instruction last noted.

The judgment is affirmed.

      &wkey;]?or other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes