author: MOURSUND, J.

text:
    GALVESTON, H. & S. A. RY. CO. v. FRED.
    (No. 5612.)
    (Court of Civil Appeals of Texas. San Antonio.
    March 1, 1916.
    On Motion for Rehearing, May 10, 1916.)
    1. Negligence <&wkey; 121(5) — Proximate Cause —Showing by Ciboumstantial Evidence— Pbesumptions.
    Proximate cause may be shown by circumstantial evidence, but cannot be presumed.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. § 228; Dec. Dig. &wkey;>121(5).]
    2. Master and Servant &wkey;>276(2) — Injuries to Servant — Manner oe Death — Sueni-ciency oe Evidence.
    In suit against a railroad company for death of its yard clerk, evidence held to reasonably. show that decedent did not fall from the train which killed him while riding thereon, or under it while trying to get on the engine.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 951, 959; Dec. Dig. <&wkey;> 276(2).]
    3. Master and Servant <&wkey;276 (5) — Injuries to Servant — Cause oe Death — Suneicien-cy oe Evidence.
    In an action against a railroad company for the death of its yard clerk, evidence held, insufficient to show causal connection between the road’s failure to have a light on its engine and the death of the clerk.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 951, 959; Dec. Dig. <&wkey;> 276(5).]
    4. Trial <&wkey;252(8) — Instructions — Submission oe Special Issue.
    In an action against a railroad company for death of its yard clerk, the submission of the issue of failure to keep a lookout was erroneous, where the evidence did not show causal connection between such failure and the accident.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 603; Dee. Dig. &wkey;252(8).]
    5. Appeal and Error <&wkey;10C2(l) — Harmless Error — Submission oe Issues.
    Error in submitting such issue was not harmless.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4212; Dee. Dig. <&wkey; 1062(1).]
    On Motion for Rehearing.
    6. Master and Servant <&wkey;265(15) — Injuries to Servant — Ignorance oe Approach oe Train.
    In an action against a railroad company for the death of its yard clerk, the ignorance of the decedent of the approach of the train which killed him cannot be inferred from the fact that he was killed.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 893, 908; Dec. Dig. &wkey;> 265(15).]
    7. Master and Servant <&wkey;265(14) — Injuries to Servant — Presumption oe Contributory Negligence.
    In an action against a railroad company for the death of its yard clerk, it cannot be presumed that decedent was guilty of negligence.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 893, 908; Dec. Dig. <&wkey; 265(14) j
    8. Master and Servant <&wkey;265(3) — Injuries to Servant — Burden oe Prooe.
    In a widow’s action against a railroad company for the death of its servant, plaintiff has the burden to prove the road’s negligence, and that it caused her husband’s death.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 879, 897; Dec. Dig. <&wkey;> 265(3).]
    9. Evidence &wkey;>597 — Weight—Surmise.
    Findings must rest on something more substantial than conjecture or surmise.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2449; Dec. Dig. <&wkey;>597.]
    Appeal from District Court, Victoria County ; John M. Green, Judge.
    Suit by Tommie K. Fred against the Galveston, Harrisburg & San Antonio Railway Company. From a judgment for plaintiff, defendant appeals.
    Judgment reversed and remanded.
    Baker, Botts, Parker & Garwood, of Houston, and Proctor, Vandenberge, Crain & Mitchell, of Victoria, for appellant. Fly & Rags-dale, of Victoria, for appellee.
   MOURSUND, J.

Appellee, in the capacity of administratrix of the estate of her deceased husband, H. L. Fred, sued appellant for the benefit of herself and her minor child, seeking to recover damages by reason of the death of said H. L. Fred, it being alleged that his death was caused on November 22, 1913, by negligence of appellant. Appellee alleged that the deceased, while upon the track of appellant, in its yards at Victoria, was struck and run over by engine No. 613; the acts relied on to constitute negligence alleged being the following:

(1) That appellant’s employés violated certain rules with reference to the display of lights on the engine, and but for such alleged violation the deceased “could have and would have seen the train approaching him, and could have and would have avoided it, by leaving the track upon which he was walking.'”

(2) That if the lights had been displayed as required by said alleged rules, “the defendant and its employés operating said train and engine 613 could have and would have discovered said Fred on said track * * * and his perilous position and imminent danger in time to have stopped said train of cars before same struck him.”

(3) That if said lights had been displayed as required by said alleged rules, the operatives of engine 613 could have discovered Fted in time to have warned him of his danger by ringing the bell and sounding the whistle, and from which warnings Fred could have taken notice and would have taken notice, and he could, from such warnings, have removed himself from the track.

(4) That the employés on engine 613 failed to ring the bell and sound the whistle as it approached Cameron street crossing, and that Fred could have and would have heard such blowing of the whistle and ringing the bell, and could have and would have removed himself from the track, and that such failure was a violation of tlie city ordinance of Victoria and of a rule of appellant, alleging that there was a whistling post at Cameron street crossing.

(5) That engine 613, which it is alleged ran over Fred, was being operated within the corporate limits of Victoria at a greater speed than permitted by city ordinance.

(6) That the operatives of engine 613 negligently failed to exercise ordinary care to discover Fred on the track, and failed to give any warning of the approach of engine 613, from which warning he could have known of the approach of the train and engine and gotten off the track.

Appellant answered by general and special demurrers and by special denials, contending that it was not guilty of any acts of negligence and not liable by reason of the death of said Fred. The father and mother of said H. L. Fred disclaimed having any interest in the recovery sought. The trial resulted in a verdict and judgment in favor of appellee for $12,000, and in favor of appellant against the parents of Fred.

Appellant has two main line tracks extending through its yards at Victoria. These cross in said yards, and are referred to in the testimony as the Port Lavaca main line and the Houston main line. The Port Lavaca line running in a southerly direction is crossed at right angles by the line extending from Houston to Beeville. Appellant’s freight depot is situated in the northerly part of the yard, north of the Houston main line, and the Port Lavaca main line extends past it. The passenger depot and roundhouse are situated on the Houston main line, west of the Port Lavaca main line. Parallel with the Port Lavaca main line on the west side of same, and extending through the yards, was a side track known as track No. 5. In order to move cars from the Port Lavaca main line and the freight depot to the passenger depot there is a curved track, known as the “cutoff” or “V.” This curved track leaves the Port Lavaca main line south of the freight depot, and extends in a southwesterly direction until it connects with the Houston main line. Fi-ed was killed by a train on this curved track, late in the afternoon, November 22, 1913, one witness fixing the time at 6:08, while another thought it was about 7 o’clock. His wife testified she heard of his death at about 6:30 o’clock. The evidence warrants a finding that it was dark, or at least that darkness had begun to fall. The evidence is not as clear as it could be with regard to the exact place, one witness fixing it at about 2S0 feet from the railroad crossing, meaning the crossing of the two main lines, and 150 feet from the dirt road crossing. This dirt road crossing, he testified, is situated north of the place where Fred was killed, and just south of the switch leading to the curved track. Another witness said that Fred's body was 25 or 30 steps below the crossing on Cameron street. This is evidently the same crossing referred to by the other witness. The evidence shows that Fred’s body was found just a little beyond the frog of track No. 5 and the curved track switch. The body was cut in two; the lower half lying inside the rails of the curved track, and the upper part just on the outside of the rail next to side track No. 5. He was lying with his face down, with one arm under his head and the other stretched out. There were some cars standing on said side track No. 5 next to his head. A train, composed of engine No. 613, dead engine No. 625 and an oil car, came up the Port Lavaca main line, and stopped above the switch leading into the curved track. Engine No. 613 was pushing the dead engine and oil car ahead of it. The switch was thrown and this train passed down the curved track, the rear of engine No. 613, or rather the tender thereof, going first. There were no lights on this end of the train, but one witness testified there was a headlight on the engine. In this respect he was impeached by testimony of a statement made by him to the effect that there were no lights burning on the engine, either at the head or rear. No whistle was blown nor was the bell rung. • The testimony shows that this train was the one which ran over F'red. The curved track was commonly used by pedestrians as a footpath day and night, which fact was known to appellant. Certain rules were introduced in evidence which required that when the cars are irashed by an engine, except when shifting or making up trains in the yards, a white light must be displayed on the leading car by night, and that the engine bell must be rung on approaching every public crossing at grade, and until it is passed, and the whistle sounded at all whistling posts. An ordinance of the city of Victoria was introduced which made it a penal offense to run or cause to be run any engine without ringing a bell before starting, and all the time such engine shail be in motion within- the corporate limits of the city.

Appellee testified that Fred came home at about 5:10 p. m. and left at 5:30 on his bicycle to go back to the depot for the purpose of checking out a train which came in late. He was yard clerk, and had with him at his house the yard book used for the purpose of entering the initials and numbers of ears and trains. He took the book with him. There is no evidence in regard to where he went or what he did after leaving home. All that we know is that he left home, and that his dead body was found as before detailed.

The testimony amply supports a finding that appellant was guilty of negligence in failing to have lights on the rear of the tender of the engine, and in failing to ring the bell. It does not, however, support a finding that no lookout was kept, for there is no direct evidence on that point, and it is not shown by circumstances. The serious question in this case is whether the evidence will support a finding tliat tlie failure to have lights on the rear of the tender, or the failure to give signals, was the proximate cause of Fred’s death. Proximate cause, as well as negligence, may be shown by circumstantial evidence. It cannot, however, be presumed. “There must be evidence sufficient to warrant a reasonable belief of the existence of the fact which is sought to be inferred.”

In this case we think the evidence warrants a reasonable belief that Fred did not fall from the train while riding thereon or fall under the wheels while trying to get on the engine. It is true the evidence shows that blood was found on the driver of the engine, which fact is consistent with the theory that he fell while riding or attempting to get on between the engine and tender. But the position of the body when found indicates strongly that he was upon the track when struck, and did not fall between the engine and tender. However, conceding that he was upon the track, the evidence fails to show whether he had just stepped upon, or whether he was walking along the same. If walking, in which direction was he walking? Piad he “checked up” the cars on the track No. 5, or was he going to check them up, or was he in the act of checking them up at the time he was killed? Or was he merely walking from the freight depot to the passenger depot or from the passenger depot to the freight depot? Where was he at the time the train passed up the main line close by the track on which he was killed, which was only a few minutes before his death? The evidence furnishes no answer to these questions. Did he know the train was approaching him, and try to cross in front of it, or wait too long before attempting to leave the track, and stumble and fall, or was he ignorant of the approach of the train until it was too late to escape? We cannot say. The evidence leaves us to surmise whether lights on the rear of the tender or signals would have apprised Fred of any danger which he did not know of and fully realize. As we are not permitted to- base a finding upon mere surmise or conjecture, upon what evidence can we base a reasonable belief that he would not have fallen in front of the wheels had the signals been given or had there been lights on the end of the tender. There is none, unless it be presumed from the fact that he was killed. The failure to have a light on the tender of a backing engine might lie the proximate cause of a person’s death on account of rendering ineffective the lookout maintained. However, in the absence of testimony showing that a person has been on or close to the track long enough to enable the operatives of the train to see him in time enough to stop the engine or warn him, there can be no finding that the failure to have a light was the proximate cause of such person’s death. We conclude that the evidence fails to show any causal connection between the negligence established and the death of Fred. M., K. & T. Ry. v. Greenwood, 40 Tex. Civ. App. 252, 89 S. W. 811; T. & P. Ry. v. Shoemaker, 98 Tex. 451, 84 S. W. 1049; Bock v. Hellman, 173 S. W. 585; St. Louis, S. F. & T. Ry. v. West, 174 S. W. 292; Mt. Marion v. Holt, 54 Tex. Civ. App. 411, 118 S. W. 827.

In the case of Washington v. Railway Co., 90 Tex. 321, 38 S. W. 764, relied upon by ap-pellee, the facts are different from those in this case. In that case the deceased was seen walking along the side of the trade, and he was killed by reason of a collision between two sections of a train which caused an oil tank to be hurled from a car in the derailed train on top of him. The court held that the derailing of the train prima facie showed negligence, that an injury to passers-by should reasonably be anticipated, and that there were circumstances from which it could be found that Washington was on the path, and not riding on the train at the time he met his death. The Washington Case is in point in so far as the query is presented in this case whether there is any evidence to show that Fred was on the track at the time he was killed, which point has been herein-before discussed, but it furnishes no rule or precedent for determining whether the failure to maintain lights on the rear of the engine or to give signals can be said from the evidence adduced to have been the proximate cause of Fred’s death.

Appellee also relies upon the ease of Hutchens v. St. Louis S. W. Ry. Co., 40 Tex. Civ. App. 245, 89 S. W. 24. In that case the negligence consisted in the failure to keep a lookout at a place used as a pathway. In fact the court appears to have been of the opinion that the evidence would support a finding that Hutchens was a licensee. Hut-chens was killed by being struck on the side of the head above the ear by the pilot beam; an oak splinter being driven into his brain. He was seen walking up the track just before the engine with the splintered beam left the station, and the path in which he was walking was about two feet from the end of the ties. The question of causal connection was not discussed, but evidently the court was of the opinion that the evidence would support a finding that if a lookout had been kept Hut-chens would have been seen, and the engineer would have avoided striking him. The facts in the case of Ft. Worth & D. C. Ry. v. Broomhead, 140 S. W. 822, decided by this court, were similar to those in the Hutchens Case, and á recovery was sustained. However, those cases differ from the instant case in that the evidence therein showed that the deceased was walking along in a path close by the track with his back to the approaching train, at such a time it could reasonably be inferred that the operatives of the train saw him, or by keeping a proper watch along the track would have seen him in sufficient time to have avoided injuring him. In this case we find no testimony from which we can infer that Ered was walking along the track or standing on the track a sufficient length of time for the operatives of the engine to have seen him by the aid of lights on the rear of the tender in time to have avoided injuring him.

As it will be the duty of the court, if the evidence is the same upon another trial, to instruct a verdict for defendant, it would be profitless to go into detail in discussing the many assignments of error presented, for many of them relate to questions which will be eliminated if sufficient evidence be adduced upon another trial to sustain a judgment. The assignments complaining of the submission of the issue of failure to keep a lookout are sustained, and the error in submitting such issue is not considered harmless as contended by appellee. Special charge No. 9 should have been given, as it presented in an affirmative manner a theory relied upon by defendant, -which, if found to be true, precluded a recovery. The evidence supporting it is very slight, it is true; but there being evidence of the existence of blood on the driving wheel of the engine, and no evidence that there was any blood on the wheels of the tender nor any evidence that it was impossible for Ered to have fallen from between the tender and cab and landed 'in the position in which his body was found, it appears to us the special charge should have been given. There was no evidence to sustain the matters mentioned in the charge complained of in assignments Nos. 9 and 10, but these errors were harmless for the reason that it -was immaterial whether Fred was engaged in his employment at the time he was killed and what his duties in his employment were. The charge is criticized on the ground that it permits a recovery upon the finding of matters which could not constitute negligence. While the wording of the charge is not as clear as it should be, we think the jury could not have failed to understand what was meant by the court. The issues raised by the assignments, other than those herein discussed, are decided against appellant.

The judgment is reversed, and the cause remanded.

On Motion for Rehearing.

Appellee contends that in our former opinion we failed to view the failure to keep lights on the end of the tender from the standpoint of the effect such lights would have produced in warning Fred of the approach of the train. Viewed from this standpoint, the failure to have lights is not shown to have been the proximate cause of Fred’s death for the same reason that the failure to give signals -was not proved to be the proximate cause. There is not a circumstance in the record from which it can be inferred that Fred was ignorant of the approach of the train. It is too well established to need citation of authorities that it cannot be inferred from the fact that he was killed. If he knew of the approach of the train in ample time to have left the track, if he was on it, the signals and lights could not have assisted him as alleged by plaintiff, and their absence could not be the proximate cause of his death. It is a mere matter of conjecture whether he knew the train was approaching. He may have known it and had ample time to leave the track, if standing on it or walking along it, but may have delayed too long, may have stumbled in trying to step therefrom and fallen, or may have tried to cross in front of the train, stumbled and fallen across the rail. When we examine the evidence from the viewpoint of the result of the failure to have lights which rendered ineffective such lookout as was maintained, we find that proximate cause is not shown because there is no evidence, direct or circumstantial, from which it can legitimately be inferred that Fred was on the track for such length of time that the operatives by maintaining a proper lookout, aided by lights, would have seen him in time to avoid injuring him. It is altogether a matter of conjecture whether he stepped suddenly on the track or whether he had been standing thereon for some time or walking along in the path between the rails. Proximate cause can be proved by circumstances, but we think there are no circumstances in this case from which it can legitimately be inferred. The uncertainty is disclosed by appellee’s own argument, for therein it is contended that Fred was either standing on the track or checking up cars or was walking along the path leading from the passenger depot to the freight depot. To these theories of what he may have been doing just before his death others could be added. Appellee apparently believes that if Fred was upon the track when struck by the train, enough has been proven, that it should then be assumed that he was there long enough for the operatives of the engine to have seen him in time to save him, or assumed that he was ignorant of the approach of the train. These matters cannot be assumed ; they must be proven.

Appellee confuses the issues of contributory negligence and proximate cause, and views our conclusion as one to the effect that Fred was guilty of contributory negligence, and therefore should not recover. We did not view the case from any such standpoint for Fred cannot be presumed to have been guilty of negligence, and the absence of evidence as to the circumstances surrounding his death as hereinbefore pointed out precludes any finding that he was negligent. The question whether he was guilty of negligence which proximately contributed to cause his death could not arise or be considered until it was first determined that the proven negligence of the company was a proximate cause of the accident. The case cannot go to the jury upon the assumption that, where deceased is presumed to have been free from negligence, it must follow that defendant’s negligence caused the accident. Such a theory does not take into consideration the fact that a 'man may be killed without being negligent himself, and without the defendant being negligent, or where being negligent, such negligence was in no way the cause of the accident. Plaintiff cannot, by reason of the presumption that deceased used due care, be relieved of the burden of proving not only negligence on the part of defendant, but that such negligence caused the death of her husband.

In the case of M., K. & T. Ry. v. Greenwood, cited in our former opinion, the defect in the evidence relied on to show causal connection was similar to that in this case, although the grounds of negligence relied upon differed from those in this case. The decision of this court was approved by the Supreme Court. Chief Justice Ely, then Associate Justice, said:

“Do those facts show that Charles Greenwood was killed through the negligence of appellant? In answering that question it must he kept in mind that the burden rested upon the plaintiffs in the court below to prove thal the death of Charles Greenwood was caused through the negligence of appellant. We cannot go out into the field of speculation and theorize as to what may have thrown the deceased from the train and under the wheels of a ear, but it must reasonably appear that his death occurred through the negligence of appellant. An analysis of the evidence does not meet the demands of that rule. All that the facts establish is that the boy was a brakeman on a train belonging to appellant, it was his duty at a certain place to make a coupling in front of the engine, and he was seen a few minutes before his death going towards the pilot of the engine and a short time afterwards was lying on the track in a mutilated condition. One step of the pilot was a little lower than the other, there was a slight defect in the coupler, the coupler had been up before the accident, afterwards it was down, and the road was rough and uneven at that point. There was no blood on the pilot or the step or wheels of the engine at the time, and no blood was found anywhere except on the wheels of a car eight or ten cars back from the engine. What caused the accident? Was it the coupler, the step, or the rough road, or all of them? Would it not be speculation of the purest type to hold that one, two, or all of the matters alluded to caused the accident? No one saw the accident; no one knows how it occurred. Theories may be constructed as to how the accident occurred and as to what caused it, but they are the filmy creations of the imagination, by which the rights of litigants should never be determined. The burden rested upon appellees to show how the catastrophe was caused, and, failing to do so, courts and juries cannot construct a caso for them upon hypothesis and presumptions.”

In the Kentucky case of Sutton’s Adm’r v. Louisville & N. R. Co., 168 Ky. 81, 181 S. W. 938, it was contended that an employs was killed while in the performance of his duties on the track. The negligence consisted in failure to keep a lookout and give signals, and such negligence was proven. The circumstantial evidence tended, we think, more strongly than that in this case to show what the deceased was doing, at the time death overtook him, but the court held the evidence insufficient to go to the jury, and said in part:

“It is the well-established rule in this and other jurisdictions that, in the case of an action for damages for death, it is not sufficient merely to show that the decedent was killed by the defendant and that the defendant was guilty of negligence. It must further appear that his death was caused by the proven negligence. (Citing cases.) Following this rule, it is held that conjecture affords no sound basis for a verdict. It is not sufficient, therefore, to present a number of circumstances about which one might theorize as to the cause of the accident. Where it is sought to base an inference on a certain alleged fact, the fact itself must be clearly established. If the existence of such a fact depend on a prior inference, no subsequent inference can legitimately be based upon it. Atchison, T. & S. F. Ry. Co. v. De Sedillo, 219 Fed. 686, 135 C. C. A. 358; Chamberlayne’s Modem Law of Evidence, 1029.”

We are not authorized to presume, from the fact that Fred left his house at about 5:30 p. m. for the purpose of checking up some cars, that he was engaged in that occupation at 6:08 p. m., or later, nor to infer that, if he was engaged in that occupation when he was run over, he had stood on the track such length of time that a proper lookout, with the aid of lights, would have enabled those in charge of the engine to save him, or to infer that in performing such work he stepped upon or remained upon the track in ignorance of the approach of the train.

We attempted to state the facts bearing upon the issue of proximate cause in our former opinion, and no exception has been taken to such statement. It may be proper to add that Fred’s wife testified at first that his hours of work ended at 5 p. m., and later fixed the time at 6 p. m. No witness testified to seeing Fred after he left home at 5:30 p. m. until his dead body was discovered. We cannot agree with appellee in her contention that the circumstances in evidence will support a finding that the acts of negligence proven proximately caused Fred’s death. Were we to so find, it would in our opinion be contrary to the well-established rule that a finding must rest upon something more substantial than conjecture or surmise.

We coneludé, however, that we erred in holding that special charge No. 9 should have been given, and therefore overrule the assignment of error.

The motion for rehearing is overruled.
      <S&wkey;Kor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: ELY, C. J.

license: Public Domain

text:
    SAN ANTONIO, U. & G. R. CO. v. GALBREATH et al.
    (No. 5655.)

    (Court of Civil Appeals of Texas. San Antonio.
    April 12, 1916.
    Rehearing Denied May 10, 1916.)
    1. Appeal and Error <&wkey;>742(l) — Assignments of Error — Statements.
    Where assignments of error were not followed by statements showing that the special exceptions were ever acted upon, it will he presumed the exceptions were abandoned below, and they will not be considered on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. &wkey;>742(l).]
    2. Evidence <&wkey;471(24) — Opinion of Witness-Conclusions.
    In an action for the death of a brakeman, evidence that after the accident he answered that he was hurt, and that the accident was caused by the failure of those in charge of a car to set the brakes, so it rolled down an incline and caught him, is not objectionable as a conclusion of the brakeman.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2196; Dec. Dig. &wkey;s471(24); Witnesses, Cent. Dig. §§ 834, 988.]
    3. Trial &wkey;>85 — Objections—Evidence—Admissibility.
    As the evidence was in part admissible, a general objection to the whole that it was a conclusion cannot be sustained.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 222-225; Dec. Dig. &wkey;85.]
    4. Evidence <&wkey;471(ll) — Opinion Evidence —Conclusions.
    In such case, an experienced brakeman could testify that it would not have taken a competent brakeman any length of time to have stopped the ear, as it was rolling down the incline; such testimony not being objectionable on the ground that it was a conclusion on the law and the facts.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2161; Dec. Dig. &wkey;471(ll)J
    5. Appeal and EIrror <&wkey;742(l) — Assignments of Error — Bills of Exception.
    The appellate court is not required to go further than to consult the statement under the assignment of error, and need not examine the record.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. <&wkey;>742(l).]
    6. Death &wkey;>67 —Damages—Evidence—Admissibility.
    In an action for the wrongful death of plaintiff’s husband, evidence as to his earnings in the past, and his earnings from time to time, is admissible.
    [Ed. Note. — For other cases, see Death, Cent. Dig. § 88; Dee. Dig. ¾^67.]
    7. Master and Servant <&wkey;274(9) — Injuries to Servant — Actions—Evidence.
    In an action for the death of a brakeman killed while between two cars to make a coupling, the automatic coupler having failed to work, evidence as to how a brakeman would open a knuckle in adjusting it to make a coupling is admissible.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 949; Dec. Dig. &wkey;»274
    8. Appeal and EIrror i&wkey;237(5) — Presentation of Grounds of Review in Court Below — Necessity.
    Where the record disclosed no motion on the part of defendant to direct a verdict at the close of plaintiff’s case, the question whether it would have been proper to direct such verdict cannot be reviewed on appeal.
    riOd. Note. — For other cases, see Appeal and Error, Dec. Dig. <&wkey;>237(5).]
    9. Master and Servant <&wkey;28(i(33), 289(33)— Injuries to Servant — Jury Question.
    In an action for the death of a brakeman killed while between cars to make a coupling., the questions of the railroad company’s negligence and the brakeman’s freedom from negligence held for the jury.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1020, 1125; Dec. Dig. &wkey;286(33), 289(33).]
    10. Master and Servant <&wkey;129(6) — Injuries to Servant — Negligence.
    Where a railroad company did not properly set the brakes on a ear or secure it, and it ran down an incline, causing the death of a brakeman, the act of the company was negligence, regardless of what set the car in motion.
    [Ed. Note. — For other cases, see Master and Arrant, Cent. Dig. § 262; Dec. Dig. &wkey;>129
    11. Negligence &wkey;>101 — Contributory Negligence-Effect.
    Under Rev. St. 1911, art. 6649, declaring that, in actions brought against any common carrier or railroad company for personal injuries or death, the fact that the employé may have been guilty of contributory negligence will not bar recovery but damages shall be diminished in proportion to the amount of negligence attributable to the employs, the contributory negligence of a railroad employé will not bar all recovery, but will merely diminish recovery.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ S5, 163, 164, 167; Dee. Dig. 101; Damages, Cent. Dig. § 371.]
    12. Master and Servant <&wkey;295(l) — Injuries to Servant — Assumed Risk.
    Where the rules of a railroad company forbade employes going between cars, the act of a brakeman in going between ears to effect a coupling, the automatic couplers having failed to work, was contributory negligence, if anything, and does not raise the question of assumed risk.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1168, 1169, 1179; Dee. Dig. &wkey;295(l).]
    13. Appeal and Error <§=>1067 — Review— Harmless Error — Instructions.
    Where no judgment was asked or given against the receivers of a railroad company, the refusal of a special charge to return a verdict for the receivers was harmless.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4229; Dec. Dig. &wkey;1067.]
    14. Trial <&wkey;191(10) — Instructions—Assuming Facts — Contributory Negligence.
    In an action for death of a brakeman, where, though there was a total absence of evidence to show contributory negligence, that issue was submitted, the refusal of a special charge assuming that if deceased placed himself in a more hazardous position than was necessary he was guilty of contributory negligence was proper, as it was for the jury to draw such inferences.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§' 429, 430; Dec. Dig. <&wkey;191(10); Negligence, Cent. Dig. § 359.]
    15. Appeal and Error <&wkey;742(l) — Assignments of Error — Consideration.
    In an action for the wrongful death of a brakeman, an assignment complaining that the verdict was excessive because of the brakeman’s contributory negligence will not be considered where there was no statement on which to base the assignment, for the appellate court will not search the record.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. <&wkey;>742 <¾.]
    16. Trial <&wkey;133(2) — Argument of Counsel —Impropriety.
    In a personal injury action, where counsel for plaintiff was each time stopped before he made any improper argument and nothing actually improper was brought before the jury, the attempted improprieties are no ground for reversal.
    [Ed. Note. — Eor other cases, see Trial, Cent. Dig. § 316; Dec. Dig. &wkey;133(2).]
    17. Appeal and Error <&wkey;877(4)i — Review-Harmless EIrror.
    In an action for the death of a railroad brakeman, brought by his father, his wife, and minor child, the court directed a verdict against the father, and, though the jury failed to so find, entered judgment against the father. JET eld that, where the father did not complain, the railroad company could not complain of the matter on appeal.
    [Ed. Note. — Eor other cases,, see. Appeal and Error, Cent. Dig. § 3567; Dec, Dig. 877(4).]
    18. Trial <&wkey;168 — Direction op Yeridiot— Rigiit of Court.
    Where plaintiffs had no cause of action against two of the defendants, and one of the plaintiffs had no cause of action, the court may dispose of such parties by directed verdict without submitting the matter to the jury.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 341, 376-380; Dec. Dig. &wkey;168.]
    Appeal from District Court, Zavala County; R. H. Burney, Judge.
    ■ Action by Mittie Galbreath and others against tire San Antonio, Uvalde & Gulf Railroad Company. From a judgment for plaintiffs, except John Galbreath, defendant appeals.
    Affirmed.
    Williams & I-Iartman, of San Antonio, for appellant. George C. Herman, of Batesville, J. O. Rouse, of Carrizo Springs, and Magus Smith, of Pearsall, for appellees.

       Application for writ of error pending in Supreme Court.

   ELY, C. J.

Mittie Galbreath and R. O. Galbreath, the widow and minor son of W. O. Galbreath, deceased, and John Galbreath, his father, instituted this suit to recover damages from appellant and two receivers for negligently causing the death of said W. O. Galbreath, by causing a car to strike two cars between which deceased had gone to couple them; the automatic coupler failing to act. Appellant pleaded contributory negligence and assumed risk. The cause was tried by jury, and a verdict returned in favor of Mittie Galbreath and R. C. Galbreath, each for $10,000. Upon that verdict judgment was rendered for Mittie Galbreath and R. C. Gal-breath in the sums found by the jury, and that John Galbreath' recover nothing by his suit, and in favor of the receivers.

The evidence discloses that W. G. Gal-breath, while in discharge of his duties as brakeman, came to his death through the negligence of appellant, in allowing an uncontrolled car to move along the track and come in collision with two cars between which deceased was working.

The first seven assignments of error are not followed by statements showing that the special exceptions, which it is contended should have been sustained, were ever acted upon by the court, and doubtless a good reason for not making such statement is the fact that the record fails to show any action by the court on the special exceptions. Without such showing, this court must assume that the exceptions were abandoned by the appellant, and that the court did not consider them.

The eighth assignment of error complains of testimony showing what the deceased said immediately after he was injured. The testimony was that deceased was asked if he was hurt, and he replied, “Yes; I am hurt.” Then he was asked how he was hurt, and he said “that the brakeman did not set the brake on the other car, and it rolled down and caught him.” The assignment of error is not followed by a statement showing the grounds of objection, and the proposition has other and different objections from those set out in the assignment and the bill of exceptions, which we concluded to consult. The only objection to the declarations of the injured man was because they were purely his conclusions, as he didn’t know the facts. The objection was urged to the whole of the declarations, and clearly could not possibly have any force as to that part that he was hurt. That was not a conclusion. Nor do we think the other part of the declaration was, although deceased may not have known hów the accident occurred. 1-Ie was stating the way in which he was hurt, in answer to a Question, as a fact, although it may not have been a fact. If any portion of the answer of a witness or contents of a writing is proper testimony, an objection to the whole of it will not be sustained; but in order to obtain the benefit of an objection it must be applied to the particular part of the testimony that is objectionable. Railway v. Gormley, 91 Tex. 393, 43 S. W. 877, 66 Am. St. Rep. 894; Railway v. Powell, 38 Tex. Civ. App. 157, 86 S. W. 21; Stubbs v. Marshall, 54 Tex. Civ. App. 526, 117 S. W. 1030; Sanford v. Finnigan, 169 S. W. 624. It was undisputed that the brakes were not set, and that the car did roll down as stated by deceased.

The ninth assignment of error is based on a bill of exception that shows objection to the statement of a witness that it would have taken an ordinarily competent brakeman about a minute to have stopped the car as it ran down the incline toward the place of the accident; the objection being that the statement “was a conclusion of the witness on a question of law and fact.” What question of law there is in the testimony is not designated, and it does not appear that the witness was not an expert and fully comiietent to testify as to the matter concerning which he was questioned. There is nothing in the assignment, proposition, or statement that points out any error in the admission of the testimony. On the other hand, the statement of facts shows that the witness was an experienced brakeman who had been working at his vocation for 20 years.

Mittie Galbreath stated that her husband “would make $65, $70, $75, or $80,” and the assignment of error shows that she was asked “how high had he made?” and that counsel for appellant then said: “We object to that; the proposition that a man might have made a good sum is no criterion; we won’t object to her stating what his actual earning capacity was.” Of course, there is nothing tangible in the objection. The statement made under the assignment merely refers to the record, and this court is under no duty to consult the record to find what the bill of exceptions contains, although we have consulted the record and find that the only objection urged to the testimony was “that fact that a man might have made a good sum at one time is no criterion.” This seems to have been aimed at testimony, which the assignment shows came after the objection, as to how much deceased had made with another railroad company. The evidence was admissible, even though the objections had been definite and certain. Railway v. St. Clair, 21 Tex. Civ. App. 345, 51 S. W. 666; Railway v. Murphy, 49 Tex. Civ. App. 586, 109 S. W. 489; Railway v. Green, 182 S. W. 392.

Upon what theory the evidence as to how a brakeman would open a knuckle in adjusting it to make a coupling was improper is not apparent to this court, and appellant makes no effort to show it. The evidence was objected to because the iffeadings did not justify it. Appellant had pleaded contributory negligence in deceased going between the cars to make a coupling, and no doubt appellees could show in answer to the charge that deceased was pursuing, the ordinary course of conduct of employes when he was' killed.

There is no basis for the complaint in the twelfth assignment of error, because the statement fails to show that any motion to instruct a verdict for appellant was made at the close of appellees’ testimony, nor does the record contain any such motion. The record does show that appellant requested an instruction to the jury to return a verdict for appellant, which was asked at the close of all the testimony, refusal of which is made the basis of the twenty-fourth assignment, which, in connection with the twelfth assignment, is overruled. The evidence, while circumstantial, as to the purpose of deceased in going between the ears, is sufficient to show that he tried to pull the lever to cause the cars to couple, and, failing in this, he signaled the engineer to stop his engine. He did stop it and deceased went between the cars, presumably, to couple them. Just after he went between the cars the loose car struck one of the cars between which deceased was standing and drove the cars together, crushing deceased so that he afterwards died. If the car had been left with the brakes properly set, or if it had been well chocked, it would not have moved and run into the other cars. Tire evidence justified the jury in finding that deceased was not guilty of contributory negligence in going between the ears, and also in finding that a car was left in such condition that it could roll down an incline and into other cars. W. G. Galbreath was engaged in the duties of his employment, and had stopped the engine, the only agency he could have in any way anticipated would move cars against those between which he was working, and while engaged in the discharge of his duties had his life crushed out through a car running wild on the track, caused by the negligence of appellant. What may have started the car from the position in which it had been left is not known. It may have been the wind; it may have been the law of gravity overcoming the negligent way in which it had been braked or chocked; whatever it may have been it culminated in the death of an employé of appellant engaged in the faithful discharge of the duties that rested upon him as an employé. No matter how vivid his imagination, deceased could not have conjured up any unsafeness in the position he assumed. He doubtless thought he had guarded against all danger, and death reached him in a manner that human reason could not have anticipated.

The thirteenth, fourteenth, and fifteenth assignments are overruled. The evidence justified the submission of the issue of which complaint is made. Without regard to the rules no statement is submitted that sustains the assignment. Mere assertion is not a statement of facts contemplated by the rules. Neither of the assignments is clear as to the point of attack made by it. The charge of the court, however, is not open to the attack, because in connection with the car running wild the evidence failed to show any contributory negligence on the part of deceased. There is no evidence whatever tending to show that deceased had anything to do with the car which caused the disaster.

No matter whether the law of gravity or any other force caused the car to move, and such motion would not have taken place if the car had been properly secured, it was negligence to have it unsecured, and the submission of the question of gravity moving it could not have in any manner injured appellant. Tire court instructed the jury that if the car had been left “without the brakes set and without other sufficient means of holding it,” then if the “car moved by gravity or any other cause other than an act of said W. G. Galbreath,” the jury should find for appellees. If the negligence of appellant in leaving the car without proper stays wás the proximate cause of the accident, it would not matter whether it was started by gravity, wind, or any other causé. There is no merit in the sixteenth assignment of error, which raises the gravity question. It is Useless to argue that a car standing on an incline for several minutes could not start unless some external force exerted by man was applied to it, for the fact remains that the uncon-troverted evidence shows that it did so start, and there is nothing miraculous, nor out of the ordinary, in connection with it. Common experience teaches that a car might so stand for a short while, although insecurely fastened when some slight cause might start it on a run. Deceased did not start it to, running, but something did, and if it had been securely fastened with brakes or by other methods it would not have moved.

The seventeenth, eighteenth, nineteenth, and twentieth assignments of error complain of the manner in which the court submitted the question of comparative negligence, and the failure to submit it as appellant desired through its special charges. The charge given by the court was correct and the special charges were contrary to law. As has been reiterated by this court and upheld by the Supreme Court, the injured party could not be deprived of all damages because his negligence was equal to or greater than that of the railway company. “In order to defeat a recovery under the rule of comparative negligence, the contributory negligence must be the sole cause of the accident.” Pope v. Railway (Sup.) 155 S. W. 1175; Railway v. Moya, 173 S. W. 608; Railway v. Green, 182 S. W. 392. The statute on comparative negligence is plain and simple and easily understood. Rev. Stats, art. 6649. This court, in the Moya Case, in which a writ of error has been refused, construed the statute in a way that no one should have a doubt in regard to it, as follows:

“If appellee was guilty of more negligence than appellant, that did not destroy his cause, but merely decreased the amount of his recovery in the same proportion that his negligence bore to the whole of the negligence. Eor instance, if appellee’s negligence was one-fourth of that of the whole negligence, he could recover only three-fourths of the compensation he would recover if not guilty of any contributory negligence. If the negligence of each was equal, he would recover one-half of the compensation, and of course, if his negligence alone produced the injury, he would recover nothing.”

The special charges were directly in the face of that decision, and were properly refused.

The twenty-first, twenty-second, and :twenty-third assignments of error are without merit and are overruled. The assignments complain of a failure of the court to submit the question of assumed risk, the •only proposition being:

“The evidence justified a charge on assumed risk and the court should have covered it in a charge.”

There is no complaint of the failure to give the special charge as to assumed risk, although embodied in one of the assignments of error. The evidence did not raise the issue of assumed risk. Appellant showed this by proving that it was a rule that brakemen should not go between the cars. Assumed risk is based on the manner of business of the employer whose risks the employes know and assume. To go between the cars was contrary to the rule of the company, and could not have been the master’s way of doing business. The act of deceased might under a proper state of facts have been contributory negligence, but none of the elements of assumed risk was disclosed. “Assumed risk refers to a general course of action in connection with the master’s way of doing business and the appliances furnished; contributory negligence refers to the question as to whether the servant acted prudently in connection with a certain matter that arose for his consideration at a certain time and place. The first is an intelligent choice, the latter is carelessness.” Railway v. Doth, 101 Tex. 133, 100 S. W. 171. The opinion of this court was adopted by the Supreme Court, and printed in the report of the decisions. of that court.

Why a complaint should be made in this court because a special charge to return a verdict for the receivers of the railroad company was not given is not apparent, as no judgment was asked and none given against the receivers. It seems that should render any objections on that score idle and vain.

The issue of contributory negligence was clearly submitted by the court, and in view of that fact and a total absence of evidence to show contributory negligence, it was not error to refuse the special charge set out in the twenty-sixth assignment of error. The special charge was incorrect because it did not require the jury to find the negligence, but assumed that if “deceased placed himself in a position more risky and hazardous than was necessary,” that he was guilty of contributory negligence. That was a matter to be found by the jury, and not to be assumed by the court. The law of comparative neg? ligence was completely ignored or forgotten in the special charge.

The twenty-seventh assignment of error complains of the insufficiency of the evidence to support the verdict and has been disposed of adversely to appellant by our conclusions of fact in considering the twenty-fourth assignment of error.

The question of excess is sought to be raised in the twenty-eighth assignment of error, and it is followed by a proposition to the effect only that deceased was guilty of more negligence than appellant, and the verdict is therefore grossly excessive, but there is no statement whatever upon which to base the assignment. The assignment will not be considered. Appellate courts cannot be expected to read the whole of a statement of facts to ascertain whether a verdict is excessive. That labor should be expended by the party complaining of excess in the verdict.

The twenty-ninth assignment of error assails the argument of counsel for appellees in his closing speech to the jury- The bill of exceptions indicates that quite an incendiary speech might have been made by ap-pellees’' counsel, if he had been permitted to make it, but each time when he seemed to be nearing the line of demarcation between proper and improper argument counsel for appellant stopped him and asked aid from the court, which was given. There is nothing in what counsel for appellees was permitted to say that could have aroused passion or prejudice in the jury. We give samples of the argument:

“Now, if you render a verdict in this case against the plaintiffs, it is true the company and their assistants might applaud your action, but, gentlemen, out on the hillside and in the valley — ”

Here the speaker was interrupted, and what might happen “out on the hillside and in the valley” is not disclosed. Again, the speaker said:

“Now, gentlemen, we are going to leave this case to you and let your verdict be as you think proper; if it is against this woman and child, let it be so; but in the future if you should meet them — ”

Here the speaker was interrupted, and it will, perhaps, never be known what the jury should have done under those circumstances. So it was all through the argument. Ap-pellees’ counsel was thus halted, prematurely perhaps, all through his argument, and whatever incendiary thoughts may have entered his brain were not allowed to gain utterance. The assignment of error is overruled.

The jury was instructed to find against John Galbreath, but failed to do so, except by inference in finding for Mrs. Gal-breath and the minor son and not mentioning John Galbreath. The court, however, rendered judgment against John Galbreath, and appellant complains of that action. John Galbreath makes no complaint of the judgment, and appellant fails to show any right or authority in it to champion his cause. The judgment disposes of every one who could be affected by it, and appellant cannot assume the guardianship of either John Gal-breath or the receivers, who were not mentioned in the verdict. John Galbreath and the receivers' were made parties, but the evidence fully showed that the former could not recover, and the pleadings and evidence showed that the receivers were not liable. The court instructed a verdict against John Galbreath, and it was agreed by the parties that- John Galbreath could not recover, and it was so entered in the judgment. Judgment was also rendered in favor of the receivers. Appellant has no ground for com-' plaint, and John Galbreath and the receivers have not complained. Railway v. Lightfoot,. 48 Tex. Civ. App. 120, 106 S. W. 395; Long Mfg. Co. v. Gray, 13 Tex. Civ. App. 172, 35 S. W. 32; McCreary v. Robinson, 57 S. W. 682. It was undisputed that John Galbreath had no cause of action, and that there was no cause of action against the receivers, and the court had the power and authority to dispose of them without the interposition of a jury. Railway v. Sneed, 181 S. W. 702.

The judgment is affirmed.
      <§rxoFor other cases see same topic and KEY- NUMBER in all Key-Numbered Digests and Indexes

      <§ss>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HENDRICKS, J.

text:
    SLAUGHTER v. MORTON.
    (No. 947.)
    (Court of Civil Appeals of Texas. Amarillo.
    April 12, 1916.
    Rehearing Denied May 10, 1916.)
    1. Attachment <&wkey;124 — Validity—Variance fkom Petition.
    Where the petition alleged that defendant sold and assigned a note to plaintiff, and guaranteed payment before maturity for valuable consideration, the plaintiff being entitled to rely on a simple action of debt, without setting up fraud, an attachment affidavit alleging that the plaintiff’s property was secured by false pretenses did not present a variance; the statute not requiring the petition to allege fraud, but only that the affidavit do so.
    [Ed. Note. — For other cases, see Attachment, Cent. Dig. §§ 338-343; Dec. Dig. &wkey;124.]
    2. Guaranty &wkey;j77(2) — Liability—Actions— " Parties.
    Rev. St. arts. 587, 1842, 1843, 6336, and 6337, providing the manner of suing obligors other than the principals on notes, bills, etc., apply only to suits against obligors not primarily liable, so that it is not necessary before suing the absolute guarantor of a note to sue the principal, nor to make him a party.
    [Ed. Note. — For other cases, see Guaranty, Cent. Dig. § 89; Dec. Dig. &wkey;s77(2).]
    3. Guaranty <&wkey;91 — Liability — Release — Evidence.
    Evidence in suit against the guarantor of a note, held to sustain the finding that one who assumed to act for the principal in securing an extension of time was not authorized to do so, and that the principal was in fact a “straw man.”
    [Ed. Note. — For other cases, see Guaranty, Cent. Dig. § 104; Dec. Dig. <3&wkey;91.]
    Appeal from District Court, Dallam County ; Hon. D. B. Hill, Judge.
    Action by J. G. Morton against W. B. Slaughter. Judgment for plaintilff, and defendant appeals.
    Affirmed.
    Towne Young, of Dallas, .and J. Y. Powell, of Dalhart, for appellant. Tatum & Tatum, of Dalhart, for appellee.
   HENDRICKS, J.

This controversy involves the liability of W. B. Slaughter, as a guarantor of the payment of the following note:

“$10,200.00. No. 1. Dalhart, Texas, Dec. 16, A. D. 1911. Three years after date, I promise to pay to the First National Bank of Dalhart, Texas, or order, the sum of ten thousand two hundred 88/ioo dollars, with interest thereon from date until paid, at the rate of 10 per centum per annum, the interest payable semiannually as it accrues, both principal and interest payable at Dalhart, Texas, for value received. This note is given in part payment for a certain lot or parcel of land situated in Hart-ley county, Texas, being section No. 251, block 44, certificate 49/7025, H. & T. O. Ry. Co., containing 640 acres of land,. this day conveyed to J. D. Rawlings by the First National Bank and to secure payment of same, according to the tenor hereof, a vendor’s lien is retained in said conveyance and is hereby acknowledged. All past-due interest on this note shall bear interest at the rate of 10 per centum per annum 'after the annual maturity thereof. And it is hereby specially agreed that if this is placed in the hands of an attorney for collection or if collected by suit, I agree to pay 10 per cent, additional on the principal and interest then due thereon as attorney’s fees.
“[Signed] J. D. Rawlings.”

Same being indorsed on the back as follows :

“Without recourse. First National Bank of Dalhart, Texas, by., President.
“We guarantee payment. C. C. Slaughter. W. B. Slaughter.
“Int. to June 16, paid 1912. Int. to Dec. 16, paid 1912. Int. to June 15, paid 1913. Int. to Dec. 16, paid 1914.”

Ancillary to the original suit instituted by Morton, the holder of the note, certain .writs of attachment were issued and levied upon different parcels of real estate, based in part upon the following affidavit:

“The plaintiff in attachment * * * says that W. B. Slaughter, the defendant, is justly indebted to the said plaintiff in the sum of $11,-569»<t/ioo, * * ⅜ and that the said debt is due for property obtained under false pretenses.”

• The suit against W. B. Slaughter upon the guaranty, it will be noted, with reference to the note, is upon allegations of the execution and delivery by J. D. Rawlings, the maker thereof, to the First National Bank of Dal-hart, the transfer and assignment by said bank of said note to the defendant, W. B. Slaughter, and the further sale and transfer subsequent to the execution and before maturity of said note for a valuable consideration by the said Slaughter, to Morton, the plaintiff herein, and that as a part of the consideration moving to said plaintiff, the defendant, W. B. Slaughter, and O. O. Slaughter “bound themselves by indorsement on said note that they would and did guarantee the payment of the said note.”

The appellant, W. B. Slaughter, contends that the- writs of attachment, based upon the affidavit, that the debt is due for property obtained under false pretenses, must fall, because there exists a fatal variance between the allegations of the petition and the affidavit for attachment.

The argument is that a petition upon a promissory note — in this case against the guarantor — upon merely simple allegations ex contractu, without any further allegations of fraud, the affidavit is inconsistent and contradictory to the cause of action as alleged ; hence the variance.

The case of Focke et al. v. Hardeman, 67 Tex. 173, 2 S. W. 363, by Chief Justice Willie of the Supreme Court, is cited as strictly in point and controlling. In that case the suit brought on an account due to John Focke, Henry Wilkins, and Herman Lange, constituting the firm of Focke, Wilkins & Lange.

The attachment was issued upon an affidavit that the defendants were indebted to John Focke, “John” Wilkins, and Herman Lange, constituting a difference of name as to Wilkins, composing said partnership. In this state, of course, ordinarily speaking, a partnership is not an entity; its legal recognition is by virtue of the constituent members of the firm. A suit in behalf of one firm and an affidavit in garnishment that the defendants owe another firm is necessarily at variance. Justice Willie did say in that cause:

“A plaintiff cannot sue upon one cause of action and have the defendant cited upon another; much less can he obtain a writ of attachment in the suit upon a different demand. * * * If, therefore, the affidavit claims the attachment upon a demand different from that sued on, it is wholly unauthorized in the particular case.”

Appellant extends this argument with the proposition, that plaintiff, Morton, should have based his suit upon the ground, or at least exhibited a count in his petition, that the debt is due for property obtained by fraud.

We do not think Chief Justice Willie intended his language to apply any further than the particular case, or analogous cases where the petition, and the affidavit in attachment, exhibit a contradiction. The statute says that if the debt is due for property obtained under false pretenses, the attachment may be awarded. The petition in this case suggests that the property obtained by the defendant, Slaughter, by virtue of a debt evidenced by the guaranty, is the money Morton paid for the note. The statute does not require the action to be predicated upon false pretenses, and it might appear, anomoIous to compel the plaintiff to allege such fraud as a constituent of his cause of action, when he is clearly entitled to simple action of debt upon the guaranty, without setting out the fraud inducing the debt.

The case of Gray v. Steedman Bros., 63 Tex. 95, does not hold, as asserted, that “false representations must be alleged,” as applicable to a controversy over an abatement of the writ. The remarks in the latter part of the opinion with reference to the question of plaintiff relying upon the fraudulent representations, as an inducement to the debt, are applicable entirely to an issue of reconvention in damages. The first assignment is overruled.

The appellant’s second and third assignments of error, being cognate, will be discussed together. Plaintiff alleged the maturity of the note as December 16, 1914, and omitted J. D. Rawlings, the maker of the note, from the suit on the following alleged justification:

“Plaintiff further shows unto the court _ that both the said J. D. Rawlings and the said O. O. Slaughter are insolvent and the said J. D. Rawlings was insolvent at the date when this suit could have been brought at the first term of said court, and the second term of this court, after the same became due, and has been insolvent and are thereby not made parties defendant in this suit.”

The testimony shows that Morton and one of his attorneys interviewed Rawlings some time in March, 1915 — probably the latter part thereof — and Rawlings at that time said he could not pay the note nor any interest upon the same, “as he had nothing to pay with.” Appellant says that this testimony means money as to Rawlings’ inability to pay, and not property.

Appellant demurred generally to the petition, and asserts that the same fails to show that the principal obligor upon the note was insolvent at the time of the maturity of same, and also contends as stated that the evidence of insolvency, actual or notorious, is not only insufficient to prove either condition, from the nature of the testimony, but is not addressed to the proper time; hence the guarantor, W. B. Slaughter, should be dismissed. Against all this, the appellee contends that the guaranty of W. B. Slaughter upon the back of the note is absolute, and that he is bound immediately, upon the failure of the principal debtor, to pay the note, without any further steps to be taken by any one, or without further conditions to be performed by any one. The American & English Encyclopedia of Law (2d Ed.) vol. 14, p. 1153, in discussing the necessity of a suit against the principal obligor, where the guaranty is absolute, says:

“As already shown, the guarantor’s liability does not depend upon demand and notice of default where the guaranty is absolute. A for-tiori suit against the principal debtor is not necessary in the case of an absolute guaranty to fix the liability of the guarantor.”

Numerous authorities from different states are cited, the following of which we have read, some of which either directly sustain the text and others are strongly argumentative of the postition assumed: Penny v. Crane Bros. Mfg. Co., 80 Ill. 244; Stowell v. Raymond, 83 Ill. 120; Sample v. Martin, 46 Ind. 226; Crissey v. Interstate L. & T. Co., 59 Kan. 561, 53 Pac. 867; Hungerford v. O’Brien, 37 Minn. 306, 34 N. W. 161; Osborne v. Gullikson, 64 Minn. 218, 66 N. W. 965; Wren v. Pearce, 4 Smedes & M. (Miss.) 91; Flentham v. Steward, 45 Neb. 640, 63 N. W. 924; McMurray v. Noyes, 72 N. Y. 524, 28 Am. Rep. 180; Gage v. Bank, 79 Ill. 63.

The Court of Appeals of New York said, in the case of McMurray v. Noyes, supra, Rapallo, Justice:

“The fundamental distinction between a guaranty of payment and one of collection is, that in the first case the guarantor, * * * without taking any steps to collect * * * will pay, and the creditor may, upon, default, proceed directly against the guarantor, without taking any steps to collect of the principal debtor, and the omission or neglect to proceed against him is not (except under special circumstances) any defense to the guarantor,” etc.

Mr. Justice Breese, of the Supreme Court of Illinois, in the case of Gage v. Bank, 79 Ill. 63, supra, in discussing a guaranty upon the back of a note made by the payee, in effect the same as the one upon this note, said:

ii * * ⅜ kopjgj. was under no obligation to amend payment of the maker, and on his. default to notify the guarantors, they undertook to pay, at all hazards, at maturity. ⅜ ⅜ ⅜ And their duty was * ⅜ * to go to the holder and take it up. The holder was under no obligation to hunt them and make a demand.”

The Supreme Court of this state, in the-case of Parker v. McKelvain, 17 Tex. 161, sustains the above enunciation, and likewise-the Commission of Appeals, in the case of Tobin Canning Co. v. Frazer, 81 Tex. 411, 17 S. W. 25. See, also, Evans v. Bell, 45 Tex. 555. The Supreme Court, in the case of Donley v. Bush, 44 Tex. 1, speaking of a gauranty by Bush, a subsequent indorsee of notes, similar in language to the one involved herein, said:

“There can be no question that such a transfer of a negotiable instrument, before maturity, made for an independent consideration, amounts to a contract that it shall be paid at maturity, and in the event it is not so paid, the guarantor is at once liable on his contoact.”

This language may not have been necessary to the decision of that case, but is a recognition, we think, of the general rule upon the particular subject announced by the overwhelming weight of authority. Tilt-Kenney Shoe Co. v. Haggarty, 43 Tex. Civ. App. 337, 114 S. W. 386, reanhounces the above doctrine.

The San Antonio Court of Civil Appeals, in the case of Shropshire v. Smith, 37 S. W. 174, held that, upon an absolute guaranty, it was not necessary to sue the principal' obligor. This doctrine would seem to be at rest if it were not for the opinion of the Supreme Court, in the case of Burrow v. Zapp, 69 Tex. 474, 6 S. W. 783, by Justice Stayton. The contracts of guaranty by the payee of notes were the same, in substance, in that case as the one in this case. It was asserted by appellant in that case that the testimony was insufficient to show the insolvency of the original maker of the note in order to excuse a suit against him at the time the guarantor was sued. Justice Stayton said that the evidence, consisting largely of the opinion of a witness, not objected to and not further developed as to the basis of the opinion, upon cross-examination, was sufficient. The case could only be authority in a negative sense. Appellant cites and quotes article 1843, under the title “Parties to Suits,” and articles 6336 and 6337, embraced in the title of “Principal and Surety,” of our Revised Statutes, claiming, without our setting out in detail said statutes, that the same are unambiguous as to guarantors and should control.

Article 587, in tlie title of “Bills, Notes and Other Written Instruments,” prescribes:

“Assignors, indorsers and other parties not primarily liable upon any of the instruments named in this title may be jointly sued with their principal obligors, or may be sued alone in the eases provided for in articles 1842 and 1843.”

Though W. B. Slaughter is a guarantor, however, if his liability to Morton, the holder of the note, upon the guaranty is unconditional and absolute, the statutes mentioned as applicable to this question must mean parties conditionally liable as to the directions in regard to parties to the suits, and in what manner they shall be sued. The second and third assignments are overruled.

Appellant’s sixth assignment of error is an assertion that the undisputed facts show that plaintiff entered into a binding contract for extension of the time of the payment of said note, without the knowledge or consent of W. B. Slaughter. It is said that J. G. Morton, owner’ of the note, and C. 0. Slaughter, the guarantor, made this agreement; Slaughter representing Rawlings, the maker. The case was tried by the court without the aid of a jury.

The deed records of Dallam county show that on the date of the execution of the note, December 16, 1911, the First National Bank of Dalhart was the record owner of the land, and that thereafter, August 22, 1912, several months after the execution of the note, the bank conveyed the property to W. B. Slaughter, which conveyance was placed of record April 3, 1913, and that W. B. Slaughter, since said time, has, at least, been the ostensible holder and owner of the legal title and of said real estate. The alleged agreement of extension is based upon the testimony of Morton, plaintiff, had with O. C. Slaughter, the other guarantor upon this note, and upon statements made by said Slaughter, in effect that Rawlings desired an extension of the note (we are referring merely to the question of C. C. Slaughter’s authority to represent Rawlings, the maker). The testimony by one of the attorneys, without objection, is that Rawlings said that he thought that was his signature to the note, “but that he knew nothing about the land as there never had been any deed delivered to him.” Morton testified that upon inquiry of Rawlings, he was informed by the latter that W. B. Slaughter really owned the particular piece of land, and that Rawlings, except that he admitted his signature, did not know anything about the transaction. Rawlings never paid in person the interest indicated by the indorsements on the note, but the same was paid by Coney C. Slaughter. There are no conclusions of the trial court in the record, and we think he was entitled to find as a fact that Coney C. Slaughter, when he purported to represent Rawlings as the maker of the particular note, in regard to an extension, did not really represent him, and that Rawlings was some kind of a “straw man” in regard to the transaction and said note.

The judgment of the trial court is affirmed.
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text:
    MADDEN et al. v. SHANE et al.
    (No. 969.)
    (Court of Civil Appeals of Texas. Amarillo.
    April 19, 1916.
    On Motion for Rehearing, May 10, 1916.)
    1. .Brokers &wkey;>56(3) — Liability eor Commission — Duty to Inquire as to Purchaser.
    The owner of property who had given plaintiff the exclusive agency for its sale on a commission under a stipulation that, if the property was sold before the expiration of the contract to any person whose attention was called thereto by such agent while acting thereunder, the commission would be paid, and who after the contract expired was informed by the plaintiff that certain parties to whose attention plaintiff had brought the property intended to purchase it through a “straw man,” and that, if so, he would sue all of them for fraud, was bound to inquire of the purchaser as to his attitude toward the purchase so as to have led to the discovery that the real purchasers were parties to the transaction.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 86-89; Pjec. Dig. <&wkey;>56(3).]
    2. Brokers <&wkey;82(l) — Commission — Action on Contract.
    Allegations in a broker’s action for a commission that defendant had xilaced his property with plaintiff as the exclusive agent for its sale on a commission, with the stipulation that, if it was sold after the expiration of the contract to any pei'son whose attention had been called thereto by the agent, the commission would be paid, and allegations of a conspiracy of the owner and purchasers to defraud the agent out of the commission, that the defendants purchased the property, that under the terms of the contract plaintiff was entitled to the commission, and that prior to the sale the owner was informed that a straw man was to purchase it for the real purchaser, were sufficient to permit a recovery against the owner on contract.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. § 101; Dec. Dig. &wkey;82(l).]
    3. Brokers <&wkey;85(l) — Action eor Commission-Evidence.
    In such case evidence as to the method of purchase through a straw man at the instigation of one of the defendants with the knowledge of the real purchasers and of plaintiff’s warning to the owner that a straw man was contemplated was admissible, so far as the owner was concerned, notwithstanding the action against him on the contract was joined with an action in tort.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 106, 108, 110, 115; Dec. Dig. &wkey;85(l).]
    4. Action &wkey;>50(l) — Misjoinder — Causes and Parties.
    Where but one cause of action is alleged against one of the. defendants, and no cause of action is alleged against the remaining defendants, there is in reality no misjoinder.
    [Ed. Note. — For other cases, see Action, Cent. Dig. § 511; Dec. Dig. <&wkey;>50(l); Vendor and Purchaser, Cent. Dig. § 766.]
    5. Parties <&wkey;92(3) — Pdeadinu &wkey;>193(6)— Misjoinder — Demurrer.
    In an action on a contract to recover a broker’s commission for the sale of property, joined with an action of tort against the owner and other parties for defrauding the broker of his commission, a demurrer on the ground of a misjoinder of parties and causes of action was properly overruled, as an element entering into the objection against a joinder of different parties and of different causes of action involves a complication of issues confusing to the jury on the merits of the case.
    [Ed. Note. — Eor other cases, see Parties, Cent. Dig. § 150; Dee. Dig. &wkey;>92(3); Pleading, Cent. Dig. §§ 434, 435, 494; Dec. Dig. &wkey;> 193(6).]
    6. PARTIES <&wkey;96(l) — Pleading <&wkey;406(8)— Misjoinder — Waiver.
    A misjoinder of parties or causes of action may be waived.
    [Ed. Note. — For other eases, see Parties, Cent. Dig. §§ 167, 169, 170; Dec. Dig. &wkey;96(l);-Pleading, Cent. Dig. §§ 1370, 1371, 1405; Dec. Dig. <&wkey;>406(8).]
    7. Brokers <S=»94 — Liability eor Commission — Purchasers.
    Where plaintiff had the exclusive agency for the sale of property, and was to be entitled to his commission if it was sold after the expiration of the contract to any one whose attention had been called thereto by the agent during the contract, and before the contract expired had called the attention of defendants to the property and they, through another defendant and a straw man, finally negotiated for and purchased the property, and where, even if the broker’s right against the owner accrued, if he knew or should have known that defendants were the purchasers, the defendants were not liable in an action of tort for defrauding the broker of his commission.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. § 136; Dec. Dig. <©^>94. ]
    On Motion for Rehearing.
    8. Appeal and Error &wkey;>934(2) — Presumptive Findings — Consideration—Statute.
    Under Rev. St. 1911, art.-1985, the Court of Civil Appeals must presume that the trial court’s findings, if sustained by the evidence, support the judgment.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3777; Dec. Dig. &wkey;>934(2).]
    Appeal from Grayson County Court; Dayton B. Steed, Judge.
    Action by George R. Shane and others against J. W. Madden and others. Judgment for plaintiffs, and defendants appeal.
    Affirmed as to the defendant Madden, and reversed as to the other defendants.
    Wolfe & Wood, of Sherman, and John T. Suggs, of Denison, for appellants. Webb & Webb, of Sherman, for appellees.
   HENDRICKS, J.

On the 15th day of July, 1912, J. W. Madden appointed the George Redwood Shane Company his exclusive agents for a limited time to sell certain residence property owned by him in the city of Denison, Grayson county, Tex., for the sum of $6,000, or such lower price as he may agree to accept, upon a 5 per cent, commission on the total selling price of the property. It is also stipulated that in case the property was sold after the expiration of the contract “to any person whose attention was called thereto by said agent or associates while acting under this contract” the commission would be paid. During the pendency of the contract the real estate brokers called the attention of H. R. Thompson and Garnet R. Love to the property for the purpose of interesting them as prospective purchasers of the same. This exclusive contract expired the 9th day of August, .1912, and on the 16th day of October following, Madden deeded the property to one L. M. Tuck, who thereafter immediately deeded. said property to Love and Thompson in separate parcels.

Immediately after the expiration of the contract the defendants Love and Thompson began negotiations with Madden, to purchase the particular property, first offering $5,000, and upon a later offer of $5,350 Madden agreed to accept the same, provided that the Geo. R. Shane Company would be satisfied with reference to any claim for commission, offering to pay the sum of $50 of the amount they would have to pay said agents as a settlement of said claim. This particular trade was not made.

Handy, the other defendant, who was a connection of Thompson’s and a blood relation of Love’s, was thereafter cognizant of the negotiations. Tuck, who finally negotiated for and purchased the property, procured a deed from Madden, in his name, for the consideration of $5,259, and it was done at the instigation of Handy. The testimony, is conclusive that Tuck was a “straw” man, and amply sufficient to sustain that Love and Thompson were cognizant of the purpose before the deal was closed. The jury found that this was done for the purpose of defeating the Shane Company out of their commission.

Mrs. Shane, one of the company, testified that Thompson inquired of her before Tuck bought the property, if the property were sold to some other person and then resold to him, would she claim a commission, and that she informed him if it were not a “put-up job” she would not make such claim. She also testified that thereafter she informed Madden that they intended to buy the property with the aid of a “straw” man, and, if so, she would sue them all for fraud and collusion. Madden denied this, but the jury found against him.

The Shane Company alleged elements of conspiracy and fraud upon the above facts against ■ Handy, Love, Thompspn, and Madden as a scheme to defraud them out of the commission, and the jury responded favorably to such allegations upon every issue. It was also alleged:

“That, if they are mistaken with reference to their legal right to recover damages under the foregoing plea, then they say that the defendants Thompson and Love purchased the said property from the said J. W. Madden for the sum of $5,300, and that under the terms of said contract plaintiffs are entitled to their commission of 5 per cent.,” etc.; that prior to the sale to Thompson and Love, and prior to the deed from Madden to Tuck, the defendant Madden was fully informed and advised that a “straw” man was to be used for that purpose.

The ordinary question, often controverted, whether the real estate agent procured a purchaser and was the efficient cause of the sale, is not in this case. We think the testimony is amply sufficient to sustain the proposition that the Shane Company, during the life of the contract, sufficiently called the attention of Love and Thompson to the property, and interested them therein, to such an extent as to find that, applicable to that phase of said contract, the Shane Company complied therewith. Madden denied any notice or knowledge that Tuck, who was instigated by Handy to purchase the property, was in reality purchasing said ‘property for the benefit of Love and Thompson. Tuck also claimed that he was acting .under the instructions of Handy and was purchasing it, so far as his knowledge extended, for the latter’s benefit. The jury having found that Madden before this transaction occurred was warned and notified that a “straw” man would be used for the purpose of beating the commission, we think, under the conditions, that Madden owed the duty to inquire of Tuck as to his attitude to the purchase, and evidently, if Tuck had answered the truth, it would have led to the discovery that Handy, Thompson, and Love were participants in the transaction.

If the allegations in this case were leveled against Madden solely, upon an action ex contractu, averring a compliance by the Shane County with the contract, in order to show a fulfillment on-their part, the same facts, exhibiting the circumlocution and the method of purchase by Tuck at the instigation of Handy, with the knowledge of Love and Thompson, and the warning to Madden that a “straw” man was contemplated, would be admissible as were admitted in this case for the purpose of proving Madden’s alleged liability upon the contract.

Assuming that Tuck did not know who were the real beneficiaries of his purchase, stripped, however, of the subterfuge as conceived by Handy, approved by Love and Thompson, and found by the jury, we have, of course, Love and Thompson, as stated, the real purchasers of the property under the contract. The only escape for Madden upon the facts is that he is innocent; that is, having reduced the price of the property, and not knowing that the purchase was intended for Love and Thompson, he was consequently selling to an independent purchaser in conveying to Tuck, and was therefore under no obligations to pay a commission. It is true that the allegation is, in part, in building to the contractual cause of action against Madden that he know of the conspiracy; but ap-pellees furthfer specially alleged that he was warned that such a conspiracy would be attempted, and advised that such a “straw” man would be used for that purpose. Hence, if the case as to Madden had been tried against him upon straight allegations of his liability, without a joinder, and if the same character of testimony as to the relations of these parties would have been admissible as in the action as tried, because this action is joined with one of tort, we can see no real injury whatever so far as Madden is concerned. Upon the allegations as made we can see no cause of action against Handy, Love, and Thompson. It is held, where but one cause of action is’ alleged against one of the defendants, and no cause of action is alleged against the remaining defendants, there is in reality no misjoinder. Good v. Daland, 121 N. Y. 1, 24 N. E. 15; New York v. Sixth Ave. R. Co., 77 App. Div. 367, 79 N. Y. Supp. 319; Lohmiller v. Indian Ford Water Power Co., 51 Wis. 683, 8 N. W. 601.

The above authorities clearly hold the proposition, but we conceive, of course, that a reasonable exception to such a rule may be that, if a court overrules the exceptions on the ground of misjoinder, and assumes that a cause of action in reality exists against some of the defendants, when none is charged, injury could occur. The allegations are sufficient in this case to charge Madden aá upon the contract, when differentiated from the allegations of tort, to permit a recovery against him. Demurrers addressed to the question of misjoinder of parties and causes of action were overruled by the court, and it is vigorously insisted that this is ground for reversal. Ordinarily that proposition is correct, but, on account of the alternative nature of the pleading in this case, the proposition-extends further to the question of election. An element entering into the objection against a joinder of different parties and of different causes of action is one involving a-complication of issues, confusing to the jury on the merits of the case, as well as operating as a prejudice to the parties in the litigation. The authorities are unanimous that misjoin-der of parties or causes of action may be waived. If there is a case where, though not waived, the nature of the testimony is such that there could be no injury, this record is in that condition.

A careful perusal of the record and the nature of the proof as a predicate of the liability ex contractu against Madden convinces us that in the main every fact offered by the appellees in this suit is admissible upon Madden’s liability.

Legally we do not believe that the other three defendants, Handy, Love, and Thompson, can be held. It cannot be said that they interfered' with a contract. The Shane Com7 pany never consummated any deal with Love and Thompson. Of course, under the jury’s-finding, they surreptitiously purchased this property for the purpose of defeating the commission. When they did purchase it,, however, the Shane Company’s rights then, accrued, and Madden’s obligation to pay matured, provided he knew, or should have known, that Love and Thompson were the purchasers. Numerous authorities on the-question of interference with another’s contract, based upon conditions wliere one contracting party is prevailed upon to breach tbe same, or cases where this is an unlawful and malicious interference with another’s business, we are inclined to think, do not apply to the peculiar facts of this case. Page on Contracts, vol. 3, §§ 1326 to 1337, inclusive, for a full discussion of the subject.

Until Love and Thompson actually purchased the property, whether they did so openly or surreptitiously, the Shane Company had not earned a cent upon the contract. To say that they destroyed or interfered with that which they in reality created is, of course, illogical. You would have to base the liability upon the reprehensible conduct, because, when you connect it with a legal injury as applied to the damage averred here, you get into the realm of benefit, instead of damage. It may, of course, be said they derived some benefit from the efforts of the real estate agents in purchasing the property called to their attention. So would they have done had they openly purchased, but in receiving those benefits they created the very rights wherein the company claim they were injured.

The cause will be affirmed as to Madden, reversed and rendered as to Handy, Love, and Thompson, with the order that the Shane Company pay one-third and Madden two-thirds of the costs of this appeal.

Affirmed in part and reversed and rendered in part.

On Motion for Rehearing.

We think counsel probably overlooks successive logical steps in regard to the duty of Madden. He was charged in the petition that a “straw man” would be produced as the ostensible purchaser of the property, and Mrs. Shane testified that she notified Madden that such “straw man” would be used for that purpose. If Madden had inquired of Tuck, presumptively he would have procured information that Handy was behind the negotiations, a party with whom he had been previously dealing, to the end that a sale of said property could be made to Thompson. Handy was a brother-in-law of Thompson, and half-brother of Love, and it is very reasonable to infer that Madden would know that Handy did not want the particular property.

The complaint of the appellant Madden that the cause should be reversed and tried upon a fight between Madden and the appellees, Shane & Co., is unavailable, as the theory propounded was already in this case, suggested by the record, and in reality covered by the findings, especially in connection with the presumptive findings of court under article 1985, of Rev. St. 1911, which this court is required to consider on appeal if sustained by the evidence. Thompson testified that he had authorized Handy to purchase the property if he could get it worth the money, and Love swore, in effect, that he participated with Handy (as between them) for the purchase of the property by Tuck. Appellant Madden saw fit to rest his case wholly upon the question of misjoinder.

With an amendment to the judgment of this court, that the appellees, composing the firm of Geo. R. Shane & Co., be required to pay all costs in the trial court produced by making Handy, Love, a,nd Thompson parties to the suit, the motion for rehearing is overruled, and the judgment of the lower court affirmed.
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