source: Caselaw Access Project

author: DAVIDSON, J.

license: Public Domain

text:
    BUTLER v. STATE.
    (No. 4179.)
    (Court of Criminal Appeals of Texas.
    Oct. 11, 1916.)
    Appeal from District Court, Wichita County; W. N. Bonner, Judge. W. B. Butler was convicted of violating the local option law, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted for violating the local option law, his punishment being assessed at two years’ confinement in the penitentiary. The record is before us without a statement of facts or bill of exceptions. There being nothing calling for a review of the record, the judgment will be affirmed.


author: PRENDERGAST, P. J.

text:
    CAMPBELL v. STATE.
    (No. 4118.)
    (Court of Criminal Appeals of Texas.
    June 14, 1916.
    Rehearing Denied Oct. 4, 1916.)
    Appeal from District Court, Collin County; M. H. Garnett, Judge. Pearl Campbell was convicted of keeping a gambling house, and appeals.
    Affirmed.
    P. J. Hemphill, of Dallas, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted for keeping a gambling house and assessed the lowest punishment. There is no statement of facts nor any bills of exceptions. No error is assigned which can be reviewed in the absence of these. The judgment is affirmed.


author: DAVIDSON, J. PRENDERGAST, P. J.

text:
    HAZELWOOD v. STATE.
    (No. 4136.)
    (Court of Criminal Appeals of Texas.
    June 21, 1916.
    Rehearing Denied Oct. 4, 1916.)
    from District Court, Randall County; Hugh L. Umphres, Judge. Robert Hazelwood was convicted of assault with intent to murder, and he appeals.
    Reversed, and cause remanded.
    See, also, 186 S. W. 201.
    R, E. Underwood and J. W. Crudgington, both of Amarillo, W. J: Flesher, of Canyon City, and A. M. Mood and Veale & Lumpkin, all of Amarillo, for appellant. H. S. Bishop, Dist. Atty., of Amarillo, and C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of assault with intent to murder, his punishment being assessed at two years’ confinement in the penitentiary. There were two cases filed against appellant in the district court of Potter county. Upon change of venue one was sent to Randall county and the other to Donley county. The facts show, as to the identity of the offenses, that they were committed the same night, in the same room and at the same time. The ease from Donley county was reversed by this court on May 10th last. It charged an assault upon the daughter; this charged an assault upon the mother, both being for assault to murder. It is not -the purpose of the writer to take up the statement of facts or go into a detailed statement of the facts. This being a companion case, the testimony is practically the same as to the merits of the case as stated in the appeal of the other case. The questions are practically the same. The writer does not care again to review those questions.. On the authority of the opinion in the former case, this judgment is reversed, and the cause remanded.

PRENDERGAST, P. J.

I dissent; and refer to my dissenting opinion in companion case recently decided.


text:
    PICKETT v. STATE.
    (No. 4182.)
    (Court of Criminal Appeals of Texas.
    Oct. 18, 1916.)
    Appeal from District Court, Grayson County; M. H. Garnett, Judge. Homer Pickett was convicted of burglary, and appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of burglary and assessed the lowest punishment. There is no statement of facts nor bill of exceptions in the record. Nothing is raised that can be considered in the absence of these. The judgment is affirmed.


text:
    RAINEY v. STATE.
    (No. 4213.)
    (Court of Criminal Appeals of Texas.
    Oct. 18, 1916.)
    Appeal from Criminal District Court, Dallas County; W. L. Crawford, Jr., Judge. Will Rainey was convicted of burglary, and appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of burglary; his punishment being assessed at two years’ confinement in the penitentiary. There is neither a bill of_ exceptions nor statement of facts contained in the record. Witlv out these documents there is nothing presented in the record for consideration. The judgment is affirmed.


text:
    ROSALES v. STATE.
    (No. 4177.)
    (Court of Criminal Appeals of Texas.
    Oct. 11, 1916.)
    Appeal from District Court, Atascosa County; F. G. Chambliss, Judge. Camilo Rosales was convicted of murder, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, _ J.

Appellant was convicted of _ murder. and his punishment assessed at 20 years’ confinement in the state penitentiary. No statement of facts or bill of exceptions accompanies the record. Under such circumstances there is no question presented we can review. The judgment is affirmed.


text:
    Ex parte SANDS.
    (No. 4270.)
    (Court of Criminal Appeals of Texas.
    Oct. 18, 1916.)
    Appeal from District Court, El Paso County; Dan M. Jackson, Judge. Habeas corpus by W. B. Sands. Prom judgment refusing bail, he appeals.
    Reversed, with directions.
    Moore & I-Iarris, of El Paso, and E. T. Moore, of Austin, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was refused bail in the trial of a writ of habeas corpus under a charge of murder. We have reviewed this record, and are of opinion that the trial court was in error. We therefore reverse the judgment and fix the bail at $10,000, upon the giving of which in the terms of the law the sheriff of El Paso county will release the relator from custody.


author: HALL, J.

text:
    TANDY COAL & GRAIN CO. v. THOMAS.
    (No. 1047.)
    (Court of Civil Appeals of Texas. Amarillo.
    Oct. 25, 1916.)
    Appeal from Lubbock County Court; E. R. Haynes, Judge. Action by J. M. Thomas against the Tandy Coal & Grain Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    J. E. Vickers, of Lubbock, for appellant. W. H. Bledsoe, of Lubbock, for appellee.
   HALL, J.

This record shows a judgment for one of the parties, where there was a conflict of testimony. There being sufficient evidence to support the judgment, it is affirmed.


author: HUFF, C. J.

text:
    ATCHISON, T. & S. F. RY. CO. v. SMYTH et al.
    (No. 1029.)
    (Court of Civil Appeals of Texas. Amarillo.
    Oct. 18, 1916.)
    1. CARRIERS <&wkey;227(3) — CARRIAGE OF LIVE ' Stock — Actions—Pleading.
    Under Rev. St. 1911, art. 7093, providing •that a contract in writing shall import consideration, in an action against a carrier of live stock for delay in furnishing cars pursuant to an alleged oral agreement, where the answer alleged ,a subsequent written contract for the transportation, which released damages occasioned by the oral contract and superseded all previous agreements, it was incumbent upon plaintiff to allege and prove want of consideration for the written agreement.
    . .[Ed. Note. — For other cases, see Carriers, Cent. Dig. § 956; Dec. Dig. &wkey;?227(3).]
    2. Carriers &wkey;>207(3) — Carriage of Live Stock — Contract: .
    Where shippers of' live stock orally contracted for cars for shipment knowing that a written contract would be required, and with the purpose of executing such contract, and thereafter they did so, they are bound by its terms.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 207, 209; Dec. Dig. &wkey;207(3).]
    3. Carriers &wkey;>227(2) — Carriage of Live Stock — Actions—Defenses.
    In an action against a carrier for breach of an oral agreement to furnish cars for an interstate shipment of live stock, a plea alleging a written contract into which was merged all previous negotiations for the cars, and which stipulated for notice, and that suit should be brought within six months or plaintiffs’ cause of action should be barred, set up a good defense in the absence of a showing that there was no consideration, or that there was duress, fraud, or mistake in procuring the written contract.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 954; Dec. Dig. &wkey;227(2).]
    4. Commerce <&wkey;8 — Interstate Commerce-Contracts — Law Governing.
    The Interstate Commerce Act (Act Feb. 4, 1887, c. 104, 24 Stat. 379) and its amendments, as construed by the Supreme Court of the United States, will control the interpretation of a written contract for an interstate shipment of live stock.
    [Ed. Note. — For other cases, see Commerce, Cent. Dig. § 5; Dec. Dig. t&wkey;>8.]
    5. Commerce , <&wkey;8— Carriage of Live Stock —Notice of Claim — Contract.
    A written contract for the interstate transportation of live stock requiring notice to an agent of the carrier, before the stock shall have been removed from the place of delivery, slaughtered or intermingled with other stock, of a claim for damage, and that the stock shall not be removed before the expiration of three hours from the giving of such notice, is valid under the Interstate Commerce Act and amendments, the laws of Texas to the contrary notwithstanding.
    [Ed. Note. — For other cases, see Commerce, Cent. Dig. § 6; Dec. Dig. <&wkey;>8.]
    6. Carriers <&wkey;21S(l) — Carriage of Live Stock — Time for Bringing Suit — Contract.
    A provision of the contract requiring suit to be instituted within six months is valid under the Interstate Commerce Act and amendments.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 674-696, 933-935, 939; Dec. Dig. &wkey;218(l)J
    7. Carriers &wkey;>207(3) — Carriage of Live Stock —Bill'of Lading — “Transportation.”
    Under Interstate Commerce Act Feb. 4, 1887, c. 104, § 1, 24 Stat. 379 (U. S. Comp. St. 1913, § 8563), providing that the term “transportation” shall include cars and all facilities of shipment, etc., and that it shall be the duty of. every carrier to furnish such transportation upon reasonable request, and the amendment of section 20 (section 8592), providing that .a' transportation company receiving property shall issue a receipt or bill of lading therefor, and other provisions of the act including section 6 (section 8569), where a written contract made by plaintiff in consideration of reduced rates for the shipment of live stock expressly covenants that all prior understandings to furnish cars are merged and contained in the writing, and stipulating suit for damages shall be brought within six months, the conditions of liability for failure to furnish cars on the date provided by the previous oral understanding "as stipulated in the bill of lading .or contract are controlling, and the- parties cannot substitute therefor a special agreement, so that the plaintiff cannot recover on the alleged oral contract.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 207, 209; Dec. Dig. &wkey;207(3).
    For other definitions, see Words and Phrases, First and Second Series, Transportation.]
    8. Evidence <&wkey;65 — Presumption — Knowl- " EDGE OF THE. LAW.
    The shipper of an interstate shipment is charged with knowledge of the law that a written bill of lading will be issued, which will include all terms and conditions of the transportation, that there were tariff rates fixed, and that they must include the rate for the entire transportation, and that there was a lower and a higher rate.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 85; Dec. Dig. <&=>65.]
    9. Carriers <&wkey;69(3) — Carriage of Live Stock — Evidence—Admissibility.
    In an action against an interstate carrier for damages for delay in providing cars pursuant to an alleged oral agreement between plaintiff and the carrier’s agent, where it was claimed that the agent would not make an agreement for a definite date until he got in touch with the dispatcher, and that upon receipt of sueh information he would advise plaintiffs if they would call, and that the' plaintiffs never did call for such information, evidence that the dispatcher advised the agent immediately by wire tliat the cars could not be furnished on the date desired by the shipper was admissible.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 222, 235-237; Dec. Dig. &wkey; 69(3).]
    10. Carriers <&wkey;21S(7) — Carriage of Live Stock — Actions—Pleading.
    A paragraph of the contract providing that in case plaintiff’s stock were damaged, he cannot claim an amount exceeding the stipulated value of the stock which was $30 per head, pleaded as a defense, will not-defeat a recovery of damages for injury to the cattle, or support the contention that their value must be reduced below $30 per head before recovery can be had for an injury.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 674r-696, 946; Dee. Dig. <&wkey;> 218(7).]
    Appeal from District Court, Potter County ; Hugh. L. Umphres, Judge.
    Action by June Smyth and others against the Atchison, Topeka & Santa,Fé Railway •Company. Judgment for plaintiffs, and defendant appeals.
    Reversed and remanded.
    Terry, Cavin & Mills, of Galveston, and Madden, Trulove, Ryburn & Pipkin, of .Amarillo, for appellant. R. R. Hazlewood and A. A. Lumpkin, botli' of Amarillo, for appel-lees.
   HUFF, C. J.

Tie appellees June Smyth and Lee Bivins allege: That they were damaged by reason of delay in failing to furnish cars on time for 480 steers at a station named Riverton. That there was no regular agent at that place, but it was used principally for shipping cattle over the line of road, and that the nearest station thereto where an agent was kept was at Pecos, 25 miles from Riverton. That Smyth, on December 19, 1912, called upon the agent at Pecos, and informed him that he desired to «hip the steers from Riverton to Amarillo, Tex., over the appellant’s line of' road and certain connecting lines ■ on December 21st. The agent informed Smyth that it would be inconvenient to get sufficient cars before December 23d. That it was 'then agreed between himself and the agent that appellees would hold the cattle until the 23d; and the agent instructed Smyth to have the steers at Riverton ready for shipinent by the morning of the 23d, and that appellant would have sufficient cars there at tliat time for the shipment. In pursuance to the agreement the cattle were t placed in the pens at Riverton during the night of December'22'd, and Were held there until the afternoon of December 24th, constantly expecting a train to arrive for the loading of the steers, when the appellant notified the appellee for the first time that it would have the cars there on the morning of December the 25th. The appel-lees thereupon took the steers out of the pen and drove them to the. river for water, a distance of about 1% miles, and also drove them about 6 miles to graze on the 24th; and on the night of the 24th 'they were again placed in the pen, and that on the morning of the 25th, at 10 o’clock a. m. were loaded out by appellant’s agents, to be shipped to Amarillo, Tex. It is alleged the cattle were damaged $6 per head, by reason of being held at Riverton from the 2.3d until the 25th of December, and on account of having no water except alkali water, and an. insufficient amount of grass at that point. This was the only damages claimed. The petition further shows that the initial point of the shipment was in Texas, thence through New Mexico, and thence again into Texas, to Amarillo.

The appellant denied generally the allegation and made certain specific denial.. The answer, in paragraph 15a, alleges that a written contract was entered into at Orter, Tex., on December 25, .1912, wherein- it was ex7 pressly agreed by the parties thereto that, it should supersede, all, previous negotiations .between the parties, and that appellees expressly waived any claim- for .damages which they might have for anything that transpired prior to the execution of such contract, and set out the paragraph, which is as follows:

“It .is distinctly agreed that all prior understandings concerning the furnishing of cars or facilities for said shipment, or concerning the transportation of said stock or said shipment, are hereby merged and contained in this written agreement, and this written agreement contains all the terms, conditions and provisions relating in any manner to the shipment or transportation of said stock; and said shipper hereby expressly waives all claims for damages arising from the breach of any prior agreement with respect to the transportation of said stock or the furnishing of cars therefor, and hereby releases the company from any and all liability therefor. That said contract was based upon a valid consideration and determines the' rights and liabilities of the parties, and that thereby all such negotiations, etc., were merged into such written contract, and that thereby plaintiff specially waived any claim for damages which he might Have by reason of the facts set forth in his petition filed herein, and defendant pleads such contract and release in bar of plaintiff’s right to recover in this suit.”

By. paragraph 16 it is alleged that it was contemplated by the .parties that such a contract would be executed and should govern and determine the rights of the parties, and was'based, upon a valid consideration. The appellant pleaded said contract and each and every paragraph thereof, and especially the' following provisions contained therein, among other things: . ’ •

“1. Paragraph 3 of said contract provides that in case plaintiff’s stock were damaged or if plaintiff should suffer loss or damage from any cause for which the railway company might be held liable, then plaintiff should not claim an amount exceeding the stipulated value of said steers; that said stipulated value as provided by the written terms of the contract and as provided, by the declared value of such live stock was the sum of $30 per head; that plaintiff’s cattle were transported on such reduced valuation at a cheaper rate than if such valuation had not.been reduced. By reason whereof plaintiff is not entitled to recover any damages so long as the valuation per head was not reduced below said amount of $30 for each steer contained in the shipment, and defendant pleads said paragraph 3, in bar of plaintiff’s right to recover herein.
■ “2. That in paragraph 8 of said written contract above referred to it is further, provided that, ‘in order that any loss or damage to be claimed by the shipper may be fully and fairly investigated, and the fact and nature of such claim or loss preserved b'eyond dispute and by the best evidence, it is agreed that as a condition precedent to his right to recover any damage for any loss or injury to his said stock during the transportation thereof, or at any place or places where the same may be loaded and unloaded, for any purpose on the company’s road or previous to loading thereof for shipment, the shipper or his agent in charge of this stock will give notice in writing of his claim therefor to some officer of , said company, or to the nearest station agent, or if delivered to consignee at a point beyond the company’s road, to the nearest station agent of the last carrier, making such delivery before such stock shall have been removed from the place of destination above mentioned, or from the place of delivery of the same to the consignee, and before such stock shall have been slaughtered or .intermingled with other stock, and will not move said, stock from such station or stockyards until the expiration of three hours after the giving of such notice, and failure to comply in every respect with the terms of this clause shall be a complete bar to any recovery of any and all such damages, the written notice herein provided for cannot and shall not be waived by any person except a general officer of the company and he only in writing.’ Defendant says that such notice in writing was not given the defendant or any of its connecting. carriers or to the delivering carrier or to any of its or their agents during the transportation of said stock and before the removal of same from the stockyards at destination, and that the first notice of any character was a notice in writing received by this defendant’s agent at Amarilloj Tex., from plaintiff Lee Bivins, on or before about the 29th day of December, 1912. By reason thereof, plaintiffs are not entitled to maintain this suit to recover any damages against this defendant, and defendant pleads said contract, and especially said paragraph 8 thereof, in bar of plaintiff’s right to recover herein.
“3. Paragraph 9 of said written contract provides: ‘It is further agreed that no suit or action against the company for the recovery of any damages accruing or arising out of said shipment, or any contract pertaining to the same, or of furnishing facilities for such shipment, shall be sustained in any court of law or equity, unless such suit or action shall be commenced in six months after the loss or damage shall have occurred. The failure to institute suit within said time shall, be deemed conclusive evidence against the validity of such chum or cause of action, and shall be a complete bar to such suit.’ Defendants says that plaintiffs’ suit was not filed within said period of six months and until long thereafter; that said suit wa's first filed by plaintiffs by the filing of their original petition herein August 28, 1913, more than eight months after the alleged loss and damage occurred, and defendant pleads such stipulation in said contract in bar of plaintiffs’ right to recover herein.”

The appellees presented a general exception to paragraphs 15a and 16, and special exceptions thereto: (1) Because the answer alleges the transportation under a certain contract; the petition alleges their cause of action to be a failure to furnish cars at the time agreed upon, and that defendants admit in their answer that it was an oral agreement, and that the answer, setting up the contract, is immaterial and irrelevant. (2) That the allegations are immaterial for the reason that appellees sought no damages after the cattle were loaded and after signing the contract, but only such as accrued upon appellant’s failure to comply with the oral agreement to furnish cars. (3) Because it is not alleged therein that appellant would be liable for any injury to the cattle if the loss occasioned was not less than $30 per head. (4) Because the cause of action is for failure to furnish cars, and not damages in course of transportation. (5) For the reason the facts alleged in said paragraph and in subdivision No. 3, if true, are in contravention of the laws of the state of Texas, and therefore void.

The trial court sustained each and all of the above exceptions, thereby eliminating paragraphs 15a and 16 of the answer.

This shipment, as shown by the pleadings, was an interstate shipment, as defined by the Supreme Court of the United States, and the parties to this appeal admit also that it is an interstate shipment.

By assignments the appellants set up the action of the trial court in sustaining the several exceptions. It will be noted the answer alleges that the written contract superseded all previous negotiations between the parties,, and that the appellees expressly waive any claim for damages prior to the execution of the contract, and further set out that all prior understandings concerning the furnishing of cars or facilities for the shipment were merged and contained in writing, which contained all the conditions relating in any manner to the shipment, and that the shipper waived all claims for damages from the breach of any previous agreement, with reference to the shipment or furnishing cars, and released thereby the company from any liability therefor.

It is also alleged that the contract is based upon a valid consideration. If there was no consideration for the contract, releasing damages occasioned by breach of the contract to furnish cars, it was incumbent upon appellees to allege and prove the want of consideration under the statute. The writing itself inports a consideration, and the plea setting up the release could not be stricken out upon exception. Article 7093, R. C. S.; Warren v. Gentry, 21 Tex. Civ. App. 151, 50 S. W. 1025; Railway Co. v. Shirley, 62 Tex. Civ. App. 158, 130 S. W. 687.

It is also alleged that at the time the cars were ordered it was contemplated by the parties thereto, based upon a valid consideration, that the written contract set up would be executed and would govern and determine the rights of the parties. If the shippers ordered the cars with the understanding that such a contract would be required and with the purpose of executing such a contract, and thereafter they did so, they should be bound by its terms. Railway Co. v. Adams, 182 S. W. 365; Turner v. Henderson, 183 S. W. 51; Railway Co. v. Halsell, 36 Tex. Civ. App. 522, 81 S. W. 1243, and authorities cited; Railway Co. v. Hudson, 188 S. W. 277.

The plea having alleged a written contract into which was merged all previous negotiations for cars, stipulating for notice and that suit should be brought within six months or appellees’ cause of action should be barred, set up a good defense in the absence of plea and proof that there was no consideration, duress, fraud, or mistake in procuring a written contract This is true whether or not an oral contract could be made for cars for an interstate shipment. Under the pleadings, a contract was- made which required notice and the institution of suit in six months. This being an interstate shipment, the act of Congress on the subject will control, as construed by the Supreme Court of the United States.

The stipulation for notice provided for in the eighth paragraph is valid under the act of Congress, the laws of Texas to the con-' trary notwithstanding. Railway Co. v. Wall, 241 U. S. 87, 36 Sup. Ct. 493, 60 L. Ed. 905.

The question of the burden of proof is not here involved, as held by a majority of this court in Railway Co. v. Whatley, 177 S. W. 543; Railway Co. v. Dalton, 177 S. W. 556. The provision of the contract requiring suit to be instituted within six months is also valid. Railway Company v. Harriman, 227 U. S. 657, 33 Sup. Ct. 397, 57 L. Ed. 690.

If we understand appellees correctly their contention is that the cause of action declared on is for the breach of contract to furnish cars on a certain date, and not for damages to cattle in transportation; or, in other words, that such contract and breach •do not fall under the term “transportation.” If such contention is correct it will logically follow that the bill of lading or receipt could not legally, under the Interstate Commerce Act, require notice of or suit for the damage on account of the breach of the contract to furnish cars in a specified time. Section 1 of the Interstate Commerce Act defines transportation as to railroads:

“And the term ‘transportation’ shall include cars and other vehicles and all instrumentalities and facilities of shipment or carriage, irrespective of ownership or of any contract, express or implied, for the use thereof and all services in connection with the receipt, delivery, elevation, and transfer in transit, ventilation, refrigeration or icing, storage, and hauling of property transported ; and it shall be the duty of every carrier subject to the provisions of this act to provide and furnish such transportation upon reasonable request therefor, and to establish through routes and just and reasonable rates applicable thereto.”

And under the amendment of section 20, a transportation company receiving property “shall issue a receipt or bill of lading therefor, and shall be liable,” etc.

These provisions, together with others, especially section 6 of the act, state what is meant by interstate transportation, and .the liability and duty of a common carrier with reference thereto. It is the duty of the carrier to provide and furnish such transportation upon reasonable request. This clearly includes cars and other instrumentalities in connection with the receipt, etc., of the property transported. Congress has taken •charge of the entire shipment from the request for cars or other instrumentalities, until finally delivered at destination. This therefore supersedes state statutes and all decisions of state courts contrary thereto. The rule established by the Supreme Court of the United States with reference to such shipments must therefore govern. The agreement to furnish cars on a given date for interstate shipments properly falls under that law. The contract here expressly covenants that all prior understandings to furnish cars “are hereby merged and contained in this writing.” Paragraph 9 also provides that if suit is not brought- within six months it shall ’ be conclusive evidence against the validity of the claim for any damages arising out of the shipment, “or any contract pertaining to same or furnishing facilities for such shipment”; and as the furnishing of cars and facilities for the shipment of the property are within the federal act, and the conditions of liability for the failure to furnish cars on the date provided for by a previous understanding are stipulated in the bill, of lading, the conditions thus fixed are controlling, and the parties, cannot substitute therefor a special agreement. Railway Co. v. Prescott, 240 U. S. 632, 36 Sup. Ct. 469, 60 L. Ed. 836; Railway Co. v. Dettlebach, 239 U. S. 588, 36 Sup. Ct. 177, 60 L. Ed. 453.

In the Prescott Case, supra, it is said:

“Viewing the contract set forth in the bill of lading as still in force, the measure of liability under it must also be regarded as a federal question. As it has often been said, the statutory provisions manifest the intent of Congress that the obligation of the carrier with respect to the services within the purview of the statute shall be governed by uniform rule in the place of the diverse requirements of state legislation and decisions,” citing authorities. “And the question as to the responsibility under the bill of lading is none the less a federal one because it must be resolved by the application of general principles of the common law.”

In the Dettlebach Case, supra, it is said:

“We recognize the cogency of the reasoning from the standpoint of the common-law responsibility of a railway company as carrier and as warehouseman. But we have to deal with the effect of an express contract', made for the purpose of interstate transportation, and this must be determined in the light of the act of Congress regulating the matter. The question is federal in its nature.”

If we shall look to the contract offered in evidence in this case and rejected by the trial -court, we find this provision:

“The rate given under this contract is lower than the rate made by the railway and connections for transportation of stock at carrier’s risk, and without limitation of liability, and is based upon the conditions, agreements, found in this contract and upon the valuation therein fixed. The shipper, by accepting this contract, is deemed to accept the lower rate upon the terms and conditions specified as part of the contract.”

.Again quoting from the Dettlebach Case:

“The provision that we have quoted from the contract is to the effect that ‘every service to be performed thereunder’ is subject to the conditions contained in it.”

Again it is said in that case:

“It is no longer open to question that if the loss had occurred in.the course of transportation upon defendant’s line, the limitation of liability agreed upon with the initial carrier, as this was, for the purpose of securing the lower of two rates, of freight, would have been binding upon plaintiff, in view of the Carmack Amendment.”

As stated by us, appellee seeks to eliminate the order or contract for cars from the contract of transportation* and thereby relieve it from the conditions stipulated in the bill of lading. The Dettlebach Case further holds, after quoting the provisions of section 1, heretofore set out by us: '

“From, this and other provisions of the Hepburn Act it is evident that Congress recognized that the duty of carrier to the public included the performance of a variety of services that, according to .the theory of the common law, were separable from the carrier’s services as carrier, and, in order to prevent overcharges and discrim-inations from being made under the pretext of performing such additional services, it is enacted 'that, so far as interstate carriers by rail were ■concerned, the entire body of such services could ■be included together under the single term of ‘transportation,’ and subjected to the provisions ■of the act respecting reasonable rates and the like.”

So it is seen from the act the order for the car falls under the term “transportation,” which must be included in the rate charged for the entire service to be performed. This may not have fallen under the carrier’s service at common law, yet under the act of Congress it is embraced therein. The parties having entered into a written contract, including that service “as subject to the conditions containing it,” the very purpose of Congress would be thwarted in securing a uniform rule “in place of the diverse requirements of such legislation and decisions” if transportation, as defined by Congress, is to ■be split up by the contract for ears and for the actual trip or voyage. In this state the provision for notice before removal of the cattle and the limitation with regard to instituting suit less than the statutory periocj, is void. Our courts also hold a contract to furnish cars is not included in the term “transportation,” and is not therefore governed by the conditions of the bill of lading. Other jurisdictions are at variance with our holding. The manifest purpose of Congress is nugatory if the various rulings are to be adhered to by the various courts. The duty is therefore to follow the ruling of the Supreme tribunal when that ruling is ascertained, whatever may have been the rulings of this or other state courts. It occurs to us the two cases above cited settle the question that the agreement to furnish cars .falls under the term “transportation.” •

The shipper is charged with a knowledge of the law, and that a written bill of lading will be issued, which would include all the terms and conditions of the transportation ; also that there were tariff rates fixed, and what they were and that they must include the rate for the entire transportation in order to prevent discrimination by separating the various services. He was also charged with knowledge that there was a lower and a higher rate. Railway Co. v. Wall, 241 U. S. 87, 36 Sup. Ct. 493, 60 L. Ed. 905. His contract in this case is upon consideration of the lower rates, whereby he agrees to all the conditions and stipulations .set out in the bill of lading.

In view, of the ruling of the trial court on the exceptions, the fourth, sixth, seventh, eighth, and ninth assignments should be overruled. . The court, in our judgment, however, erred in sustaining the exceptions, and it ■ follows that If the pleadings are sufficient the testimony offered, which is set up under these assignments, should have been admitted after overruling the exceptions to the pleadings.

The tenth assignment should be overruled. We believe under the authorities of this state and others the testimony here complained of was admissible.

The eleventh and twelfth assignments are also overruled. The testimony raised the issue submitted.

We are inclined to believe the fifth assignment should be sustained. According to appellant’s contention, it was understood that the agent could not or would not make an agreement for a definite date for the cars until he got in touch with the dispatcher and ascertained when stock cars could be furnished at Riverton; and upon receipt of such information he would advise the appellees, if they would call for the information, and until advised he could not fix a day certain. That appellees never did call for such information. Owens, the dispatcher, was offered to testify that he advised the agent immediately by wire that the cars could not be furnished on the 23d; that it would probably be a day or two later before the cars could be furnished. This and some other evidence of like nature was excluded on the objection that it was hearsay, immaterial, and irrelevant. According to appellant’s contention, this was part of the transaction and agreement, and entered into the very terms of the understanding of the parties. The fact that the dispatcher so communicated to the agent under the alleged agreement according to appellant was to be communicated to appellees when called for, would throw light on the transaction,. and under the facts of this case we believe it was admissible. Security Trust, etc., v. Stuart, 163 S. W. 396; Britt v. Burghart, 16 Tex. Civ. App. 78, 41 S. W. 389; Memphis Cotton Oil Co. v. Goode, 171 S. W. 284.

Wle may properly conclude this opinion by quoting from appellant’s concluding remarks:

“We are aware of the fact that the appellate courts of this state have gone very far in enforcing oral contracts of shipment and in avoiding the effect of written contracts; but we have not noticed any case denying the railway company the privilege of setting up the- provisions of the written contract as a defense and of introducing evidence thereon. The trial court in this case holds that the carriers cannot even plead that character of defense. Every provision in the shipping contract pleaded by appellant has been held valid by th.e courts of the United States, and this court as well as other Courts of Civil Appeals have in effect held such provisions valid,' but have affirmed the action of the trial courts in submitting the issue as to the existence of an oral contract, independent of the written, contract.”

We believe the court was in error in sustaining the exceptions to the appellant’s answer, as contained in paragraph 15a and 16, and in striking them out; however,.the second special exceptions urged against the allegation of paragraph 3 of the contract and relied upon as a defense, in our judgment should be sustained. While if the allegations were true the appellees could not recover for the cattle a greater value than $30 per head, this would not in our judgment prevent recovery for damages occasioned by their injury. The proposition that their value must he reduced below $30 per head before recovery could be had for an injury we believe to be unsound. As pleaded, this paragraph will not defeat a recovery of damages for injury to the cattle. There may be some question as to the proper measure of damages under such contract.

The case, for the reasons pointed out, will he reversed and remanded.
      <Ste>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: TALBOT, J.

text:
    WALKER v. TERRELL, Comptroller.
    (No. 7616.)
    (Court of Civil Appeals of Texas. Dallas.
    June 24, 1916.
    Rehearing Denied Nov. 4, 1916.)
    1. Intoxicating Liquors <@=>145 — Violation of Closing Law — “Kept Open and Business Conducted Therein.”
    A party operating a saloon, café, and cabaret, the waiters in the cabaret receiving money from the customers for drinks,- which they purchased -in the saloon, who permitted customers to remain in the cabaret, after the legal closing hour for the saloon of 9:30 p. m., to drink what they had purchased prior to the closing hour, pursuant to warnings from the waiters, to eat their lunches, and to drift out gradually, servants, waiters, and manager remaining in the cabaret to gather up empty bottles’and clean up, and to deliver, after 9:30, liquors purchased in the saloon before that hour, customers being entertained by music and lewd women, was guilty of violating Vernon’s Sayles’ Ann. Civ. St. 1914, art. 7442, establishing the closing hour of 9:30 p. m. for every person having a liquor license, since the language of the statute, “was kept open and business conducted therein,” does not mean merely the act of selling liquors; its meaning extending to each act of a liquor dealer or his representative done in connection with or incident to such sale.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 156-158; Dec. Dig. <@=> 145.]
    2. Intoxicating Liquors <@=>145 — Closing Law — Statute—“House or Place Where Business of Selling Liquors is Conducted.”
    A cabaret or rathskeller, operated in connection with an adjacent bar where drinks were purchased by the waiters for the customers, was a part of the saloon business, the ownership of the whole being in the hands of a partnership, within Vernon’s Sayles’ Ann. Civ. St. 1914, art. 7451, establishing a closing hour of 9:30 p. m. for any “house or place where the business of selling liquors under license is conducted,” the statute meaning any and all places, whether immediately connected with the' barroom or detached therefrom, over which the seller of liquors has the right to and does exercise authority and control, and which are used in connection with or incident to the business of selling liquors.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 156-158; Dec. Dig. <@=> 145.]

      3. Time .<@=>14 — Closing Law — Standard ■ OR 'AíCTXJAXí OCIjME
    Vernon’s Sayles’ Ann. Civ. ,St. 1914, art. 7451, establishing a closing hour of'9:30 p. m. for places selling intoxicating liquors, refers* to actual or sun time, and not to standard or railroad time.
    [Ed. Note. — For other eases,' see Time, Cent. Dig. § 55; Dec. Dig. <@=>14.]
    4. Evidence <@=>17 — Judicial Notice — Standard and Actual Time.
    The court will take judicial cognizance of the fact that standard or railroad time at Dallas, Tex., is the actual or sun time. along the ninetieth degree of longitude west from Greenwich, that Dallas is approximately on longitude 96° 51' 30" west from Greenwich, and that there is a difference of four minutes in time for every degree of longitude.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 21; Dec. Dig. <@=>17.]
    5. Appeal and Error <@=>170(1) — Question Reviewarle — Question of Law Not Raised by Pleadings.
    In an action against the comptroller of public accounts to reinstate a liquor dealer’s license, rescinded for an alleged violation of the 9:30 p. m. closing law,- where plaintiff, in his petition, denied that his place of business was kept open after ,9:30 p. m., the character or kind of time, whether standard or actual, which controlled, being a question of law, whether or not the question was raised by the pleadings below, the ruling was subject to review in the Court of Civil Appeals.
    [Ed. • Note. — For other cases', see Appeal and Error, Cent. Dig. § 1035; Dec. Dig. <@=>170(1).]
    Appeal from District Court, Dallas Couinty; T. A. Work, Judge.
    Suit by J. O. Walker against H. B. Terrell, Comptroller of Public Accounts. From a judgment for defendant, plaintiff appeals.
    Judgment reversed, and cause remanded for new trial.
    Cecil L. Simpson, of Dallas, for appellant. R. B. Humphrey, of Throckmorton, for ap¿ pellee.
   TALBOT, J.

This suit was instituted in the district court of Dallas county, Tex., July 15, 1915, against H. B. Terrell, in his official capacity of comptroller of public accounts of the state of Texas, to reinstate a liquor dealer’s' license theretofore granted appellant’ by appellee on a permit dated September 19, 1914, and which liquor dealer’s license was rescinded by appellee by an order dated June 22, 1915, for an alleged violation, on Hay 15, 1915, of what is known as the 9:30 p. m. closing law of this state-. There is no controversy over the pleadings. The appellant alleged the granting of the license to him about the 21st day of October, 1914, to do business as a retail liquor dealer for a period of years, and the revocation of said license by appellee on June 22, 1915. He denied that he had violated the 9:30 closing statute, and prayed that his license be reinstated. The case was tried before the court without the aid of a jury, and judgment was rendered upholding the order made by the appellee rescinding appellant’s said liquor dealer’s license, and denying tlie relief sought. From this judgment, the appellant appealed.

Article 7451 of Vernon’s Say les’ Texas Civil Statutes is as follows:

“Every person or firm having a license under the provisions of this law (meaning the liquor dealer’s law), who may be engaged in or who may hereafter engage in the sale of intoxicating liquors to be drunk on the premises in any locality of this state, other than where local option is in force, shall close and keep closed their houses and places of business and transact no business herein (meaning no doubt therein) or therefrom from and after 9:30 o’clock p. m. on Saturday and between that hour and 6:00 o’clock a. m. on the following Monday of any week; or between the-hours of 9:30 p. m. and 6:00 a. m. of the following morning of any week day, and shall close and keep closed their houses and places of.business and tránsact no business therein or therefrom from and after 9:30 p. m. Saturday until 6:00 a. m. of the following Monday of each week; and between the hours of 9:30 p. m. and 6:00 a. m. of any week day.”

Other articles of said statute provide the procedure for ascertaining whether or not any person to whom a retail liquor dealer’s license has been issued has violated any of the conditions and provisions set out in the application filed with the comptroller for a permit to apply ftfr such license, and article 7442 is to the effect that, if the comptroller shall determine from the preponderance of the credible evidence obtained that at any time after the issuance of the license to the liquor dealer the place where the business of .selling liquors under said license was conducted was kept open and business conducted therein after 9:30 p. m. and between that hour and 6 a. m. the following morning, he shall rescind, vacate, and withdraw said license.

The trial court filed in this case conclusions of law and fact, the material facts being as follows:

“The facts in this case shows that the license in question was obtained for 1618 Main street. Connected with 1618 Main street was the number 1614% Main street. This was an entrance that led down into a rathskeller, in other words, a cellar where people were furnishecl with all character of edibles and drinks according to the taste of the individual. On the other side of 1618 Main street was a café or cabaret, with also- an entrance on Main’ street. The entrance into the café led you into the cabaret. There was a back or side door that led from the café or cabaret into a rathskeller or cellar; both the -rathskeller or cellar and the cabaret had communication with and through the back door of the saloon. On this particular occasion at the time and place mentioned, and prior thereto, Johnnie Senchal and Walker, appellant, were partners in the conduct of this business, and this business included the bar, the rathskeller, and the cabaret, all with free access to and through the back door of the saloon, which was a part of the same building and the same business. Walker, the plaintiff herein, presided over and had conduct of the saloon, Senchal presided over the two eating places, the cabaret and cellar. They were partners enjoying mutually the proceeds and profits of the saloon, cabaret, and cellar. On this particular occasion at the time and place when the officers, Roddy and Irving, entered the rathskeller at 9:45 (this time 9:45 was time used in Dallas, standard time kept by Linz Bros.), it was in full swing. A man was playing a piano, and there is some question as to whether a woman was playing a violin. There were in the neighborhood of 75 people in the cellar; among whom were probably a dozen women, known characters of bad repute. On the tables all over the room or cellar were empty and half empty beer bottles and glasses; some of the beer had been all consumed out of some of the bottles, and in other bottles half consumed, and on one table five or six bottles of beer that had not been touched, but was ready for use. While the officers were present one of the waiters went in the back part of the house and brought 12 or 15 packages of beer or drinks of some character and laid them on a table near the front door. There is no dispute as to the door of the saloon being locked. The testimony is that it was locked. No liquor was sold after 9:30 o’clock, all the liquor had been sold before 9:30 o’clock and put in cellar. The court finds and holds from this state of facts that the plain, obvious, palpable, and unmistakable meaning of the 9:30 closing law was openly, flagrantly, and notoriously and knowingly violated, and that the building as so arranged, the rathskeller and cabaret running as they were run, was an unmistakable subterfuge and disguise.”

The first assignment of error is, in substance, that the court’s conclusions of fact, to the effect that No. 1618 Main street was connected with No. 1614% Main street and that the saloon of appellant located at 1618 Main street was being operated after 9:30 p. m. May 15, 1915, in connection with the cabaret and café of appellant, is not supported by the evidence; that the undisputed evidence shows that all entrances to the saloon and café were entirely closed, and no business was conducted therein after 9:30 p. m. of that date. The proposition advanced under this assignment is that if No. 1618 Main street, Dallas, Tex., the place where appellant was permitted under his license to do business as a retail liquor dealer, was closed after 9:30 p. m. of May 15, 1915, and before 6 o’clock a. m. of the following day, and no business was being conducted therein or therefrom after 9:30 p. m. of May 15, 1915, and before 6 a. m. of the following day, appellant’s license was illegally rescinded. In reply to the foregoing assignment and proposition of the appellant, the appellee asserts that the conclusions of the trial court that the cabaret located at No. 1614% Main street was a part of the place designated in appellant’s license as No. Í618 Main street, and that the house or place where liquors were sold under said license was kept open and business conducted therein after 9:30 p. m. May 15, 1915, is abundantly supported by the testimony; that the “expression used in the statute, ‘house or place where the business of selling liquors under said license was conducted,’ does not mean simply the room in which the. bar is situated. Its meaning includes any and all places, whether immediately connected with said barroom or detached therefrom, over which the seller of liquor has the right and does exercise authority and control, and which are used in connection with, or incident to, the business of selling liquors;”

The decision of the questions raised turns upon the following testimony:

The appellant Walker testified:

“I made application to the comptroller and was granted' by said comptroller a permit on September 19, 1914; to apply for a liquor dealer’s license; I applied for said liquor dealer’s license and received same on the 21st day of October, 1914, to do business at 1618 Main street. The license was granted to J. O. Walker. Johnnie Senchal and I were partners in that place. The café is on the other side, a different room. The ground floor of 1618 Main street is about 24 or 26 feet front, and about 90 feet deep. The café and bar constituted the whole of 1618 Main street where I conducted business. During the time that 1 operated under that license I did not at any time keep open house or do any business at 1618 Main street after 9:30 o’clock. I always closed my door, locked up, got my money out, and was outside by 9:30 o’clock p. m. On May 15, 1915, the date they charge me with violating the 9:30 closing law, my place was closed at 9:25 p. m. The bar and café both were closed. There was no one in the bar at all after 9:30 that night, nor was there any business transacted in there after that time. I had charge of the bar at that time. Senchal was pot in control of the bar at 1618 Main street at that time; I was in control of it. I acifed for the firm in the management of the café. The café was next door to the saloon. There was a cabaret in another building; it was not in 1618 Main street at all. During the hours between 6 o’clock á. m. and 9:30 o’clock p. m. they came up from the cabaret and bought drinks from me, and paid for them at the bar, and the drinks were delivered in the cabaret. Mr. Senchal and I shared in the profits from those drinks because we were partners in the bar; we sold it at the bar. There was a door from the ‘cabaret into the café upstairs, and you can go from the café into the barroom. Drinks were served at the bar, and drinks were also sold and paid for at the bar, to be consumed in the café and cabaret. 1 was there on the night the arrest was made •by the officers. X was not in the cabaret, but was up on the street talking to some parties after I had closed up, and afterwards I went ■down in there. The arrest was made after the .saloon had been locked and closed; they arrested Mr. Senchal. When X went down in the cabaret after the arrest there was no one in there except the waiters, Mr. Senchal and the two officers. I suppose I was in there five or ten minutes. I was in both the café and •cabaret. I don’t know just what time I went into the cabaret and café. It was after 9:30 when I left the cabaret that night. I was only ■down there once after I closed the saloon. No. 1618 Main street is the place where T did busi,-ness. The rathskeller or cabaret was at No. 1614% Main street, in the Angus Building. 'That was not connected with the bar, but you could go fx-om that into the other restaurant, and from that into the bar.' Any one that wanted anything to di-ink in either eating place could get it by sending the waiter with the money and paying for it at the bar, and the waiter could take it to either of the eating places. I did not sell or send down into the café •or rathskeller any beer or liquors of any kind after 9:25 o’clock that night; 9:25 was the last thing that was sold. The rathskeller was open at that time. I suppose the waiters that bought and paid for the beer before 9:25 .took it down into the rathskeller. If any liquors were served in the rathskeller after I closed up it was liquors that were bought and paid for before 9:25 o’clock.”

Johnnie Senchal, appellant’s partner in the ■business, testified in part:

“The 9:30 closing law was never violated from •the time Senchal’s place was opened until the day it was closed. The bar was closed each and every night at 9:25 p. m. I put my whole time working at the business, and Mr. Walker put in all of his time. The business consisted of a saloon, café-, and rathskeller. The saloon was at 1618 Main street, and the café was next door west, and then beyond that was the rathskeller, which was 1614% Main street. It is a fact that no liquor was ever sold, and no money ever received, except at the bar. There was never any beer or whisky sold in the rathskeller. In other words, the customer gave the waiter the money, and money was paid at the bar. The bar is about 50 feet from the entrance to the rathskeller. We did not sell liquor in the rathskeller. The waiters acted as agents of the customers. We didn’t put any of the customers out of the place (the cabaret) at 9:30; we allowed them to stay there and eat their lunches and drink their drinks, and drift out gradually. We left the place that night to go to the city hall at 10 o’clock. The last parties to leave were two gentlemen sitting at a table drinking beer, and I told them I was sorry to disturb them, but I would have to ask them to leave so that I could go to the city hall with Mr. Roddy and Mr. Irving.”

The witness Roddy testified, among other things, as follows:

“I am a member of the police force of the city of Dallas; you go down in the basement, and there is a little stairway that goes back of the basement up into the saloon; it is connected, the saloon and cabaret, by doors and passages. We got to that place at 9:45 p. m. We went into the basement. I guess there were 50 or 75 people in there drinking beer, bottle beer, around the tables in the basement. After we got in there I saw one waiter come with two or three packages and lay them on a table where two or three men were sitting di'inking. When we first went in there was 50 or 100 bottles of beer in there, some half drunk, and some looked as if the cork had just been pulled.”

E. J. Irving testified:

“I live in the city of Dallas and am on the police force of this city. The cabaret does not connect with the saloon in front, but is connected in the rear by stairway. We went into the cabaret at 9:45 o’clock p. m. and arrested Mr. Senchal. I know it was 9:45, because I had gone down and compared my timepiece with the time in Linz’s window, and set my watch exactly right. The first time I went in there was 8:15, and I went out; and this time I went in there at 9:45, and there was between 50 and 75 people in there, and I expect there was nearly 50 people drinking at the time I went in there. Some of the employés of the house were gathering up empty bottles, and some taking dishes away and carrying them to the back. One man delivered three packages of beer on a table; that was one of the waiters. There were 4 bottles of beer in one package, and a half dozen bottles each in the other two packages. That beer was delivered to three different men. They got that beer off of a long table in the rear of the cabaret. I did not see any money change hands, and heard no discussion about the 'purchase of any beer or drinks of any kind. There were several bundles on the table where they got those packages, and people picked them up and carried them out. There were women and.men sitting around the tables drinking. There was a man at the piano; playing the piano. Music was going on as we went in. We saw liquors being drunk there, and we arrested him.”

The appellee admits there is no evidence whatever of any 'sale: of liquor' after 9:25 o’clock on the evening in question. The acts and things relied on to bring the case within tlie. meaning of. the' statute and to show a violation thereof are summarized as follows:

“First. Allowing customers to remain in the cabaret after 9:30.
“Second. Servants, waiters, and manager .remaining in the cabaret after 9:30 to gather up empty bottles, carry away dirty dishes, and otherwise clean up the premises.
“Third. Allowing customers to sit at tables and drink beer or eat food, after 9:30, purchased before that time.
“Fourth. Delivery by waiters or servants in the cabaret after 9:30 of liquors 'pmrchased jn the saloon before that time.
“Fifth. Entertaining customers with music and the presence of lewd women in the cabaret after 9:30; such things being forbidden in a saloon at any time.”

If the acts and things set forth in each of the foregoing paragraphs do not bring the case within the meaning of the statute that ■the house or place “was kept open and business conducted therein,” then considered collectively or as a whole- they do. As contended by appellee, the language of article 7442, namely, “was kept open an’d business conducted therein,” does not mean merely the act of selling liquors. Its meaning extends to and includes each and every act of the .liquor dealer or his representatives done in connection with, or incident to, such sale. The evidence is amply sufficient to show that at the time the officers went into the cabaret •and arrested Senchal, many of appellant’s customers were in the cabaret; that the manager of the cabaret and. the servants and waiters of appellant were therein to wait upon customers, to gather up empty bottles, carry away dirty dishes, and otherwise clean up the premises. Liquors purchased in the saloon before 9:30 p. m. were delivered by appellant’s servants "and waiters in the cabaret,. and those there to receive it and drink it on the premises, or carry it away, were entertained with music and the company of lewd women. All this was incident to and connected with appellant’s liquor business, as shown by the evidence, and evidently provided by appellant and his associate Senchal for the purpose of promoting and increasing their sales of liquor. Senchal testified:

“The waiters in the café and rathskeller would go around to the customers who were eating and drinking and tell them that the bar would close at 9:25, and if they wished anything to drink- that they would have to order it then. We didn’t put any of the customers out of the place at 9:30. We allowed them to stay there and eat their lunches and drink their drinks, and drift out gradually.”

The evidence clearly shows that the cabaret or rathskeller was kept open and business conducted therein after 9:30 p. m. according to standard time, on May 15, 1915, and if the statute has reference to that character of time, the acts of the appellant relied on by appellee as showing that appellant’s place of business was kept open- and business conducted in violation of the 9:30 closing law, occurred after 9:30 p. m. Appellant insists* however, that the statute must be construed as having reference to actual or sun time, and that so construed the acts relied on occurred before 9:30 o’clock. This question will be discussed later in this opinion.

We also agree with the views of appellee, that the language of the' statute, ‘'“house or place where the business of selling liquors under said license was conducted,” does not mean simply the room or building in which the saloon of the liquor dealer is situated. The fair and reasonable construction of the statute is that it means any and all places, whether immediately connected with the barroom of detached therefrom, over which the seller of liquors has the right and does exercise authority and control, and which are used in connection with, or incident to, the business of selling liquors. No parallel case is cited, and we have found none, but the foregoing interpretation of the statute is sustained, we think, by the following authorities cited by appellee: Whitcomb v. State, 2 Tex. Civ. App. 301, 21 S. W. 976; Kitchens v. State, 44 Tex. Cr. R. 216, 70 S. W. 82; Humphrey’s Texas Liquor Laws, p. 99; Cunningham v. Porchet, 23 Tex. Civ. App. 80, 56 S. W. 574; Horan v. Chief Justice, 27 Tex. 226; Adams v. State, 146 S. W. 1086; Munoz v. Brassel, 108 S. W. 417. The first case cited was an action on a liquor dealer’s bond, for a breach of the condition of the bond that the dealer would keep a quiet and orderly house. It appears that in the back part of defendant’s store there' was a bar; that in the rear of the store a door opened upon an alley, across which there was an arbor; that defendant had control of this arbor, which was arranged with tables, at which persons drank beer purchased in the "store, and the court held that the words, “house or place of business,” included the arbor kept by defendant for the purpose of selling liquors, and that the judgment for plaintiff was proper if, in such place of business, defendant allowed music, boisterous talking, and indecent and vulgar language. In. the second case the appellant was prosecuted for keeping a saloon open on election day in violation of the statute, and the Court of Criminal Appeals of this state, in holding that the evidence was sufficient to support the conviction, quoted with approval from Black on Intoxicating Liquors, § 393, the following language:

“Although that part of the house where the bar may be situated may not be open to the public, yet if other rooms in the house, connected with the barroom and habitually or occasionally used for drinking purposes are accessible to persons desiring liquor, such rooms are regarded as a part of the saloon, and while they are open the saloon is not closed as the law requires.”

In Adams v. State, supra, a liquor dealer, who had given a bond conditioned upon his keeping a quiet and orderly house, or place for the sale of.liquors, maintained a small inclosure behind and outside of his place of business, used for storing empty bottles and drunken customers, and this court held that disturbances of the peace, committed in .the inclosure, were a breach of the bond. The contention of the appellant in that case was that acts committed in the inclosure did not fall within the meaning of the statute, as the term “house” used therein meant the house wherein the liquor business was conducted. In rejecting this contention this court .said:

“We think it means any part of the premises on which the business is conducted or used in connection with carrying on the same.”

To practically the same effect are the other cases cited. It is quite clear that the liquors delivered to appellant’s customers in the cabaret, to be drank there or carried away, were sold under the license revoked by appellee, and we think the evidence sufficient to show that the cabaret was a part of appellant’s place of business and used in connection with the saloon conducted by him. The business consisted unquestionably of a saloon, cafe, and cabaret, or rathskeller. Liquors were commonly sold in the barroom for delivery in the cabaret or rathskeller, and, while not immediately connected, they were so situated with reference to each other and so provided with doors and a stairway as to make such deliveries convenient and in furtherance of the liquor business in which appellant was engaged. To hold that the cabaret, situated, equipped, and used as it was, did not constitute a part of appellant’s place of business as designated in the license issued to him, would be, in effect, • to suffer an evasion of the 9:30 closing law by a thinly veiled subterfuge, and leave its observance to only such persons, engaged in the retail liquor business in this state, as are disposed to obey it.

But appellant contends that actual or sun time should control in' determining the hour at which appellant’s place of business was closed on the evening in question, and that if it does, then the undisputed evidence shows that not only appellant’s barroom and café were closed at 9:30 o’clock, but also the cabaret or rathskeller, and the judgment of the district court should be reversed, and judgment rendered in this court in favor of appellant. We are of opinion that this contention, in so far as reversing the judgment is concerned, should be sustained. The statute does not prescribe the character or kind of time which shall govern, and we know of no ease in which it has been construed and the question determined. It has been definitely settled, however, by decisions of our Supreme Court and Court of priminal Appeals, and likewise in courts of other jurisdictions where the question arose, that in determining the time of the expiration of a term of court limited by statute to a certain day, solar time, and not standard or railroad time, should be used, though the community has generally adopted standard time. Parker v. State, 35 Tex. Cr. R. 12, 29 S. W. 480, 790; Texas Tram & Lumber Co. v. Hightower, 100 Tex. 126, 96 S. W. 1071, 6 L. R. A. (N. S.) 1046, 123 Am. St. Rep. 794; Henderson v. Reynolds, 84 Ga. 159, 10 S. E. 734, 7 L. R. A. 327; Searles v. Averhoff, 28 Neb. 668, 44 N. W. 872; American & Eng. Enc. of Law, vol. 26, p. 10. In the first case cited the appellant had been convicted of murder, and his punishment assessed at confinement in the penitentiary for life. He applied for a writ of habeas corpus on the ground that the verdict'was rendered after the expiration of ’the term of court at which he was tried, and from an order denying the writ he appealed. It appeared that at the opening of the term of the court at which appellant was tried the court had the courthouse clock set by a sun dial which gave the true sun time and held the sessions of the term according to such clock. The Court of Criminal Appeals held that the hour at which the term of the trial court expired should be determined by the true sun time, and not by the standard time, and it appearing, according to the true sun time, that the verdict was received by the court before 12 o’clock at night on the last day of the term, affirmed the judgment of the trial court. In discussing the question, the court, speaking' through Mr. Justice Henderson, among other things, said:

“True sun time is obtained by the means of a dial; mean sun time is what is called ‘standard time.’ What is known as simple ‘standard time’ — ‘central time’ — is merely the solar time of the ninetieth meridian west of Greenwich. The difference between standard, time and sun time is exactly the same over each meridian. What is called central timé is .used and extends between the ninetieth meridian running west to the one hundred fifth. There is a difference of 4 minutes for each degree between true sun time and standard or mean sun time.”

The court then quotes from the American and English Encyclopedia of Law, cited above, the following:

“The only standard of time recognized by the courts is the meridian of the sun, and an arbitrary standard set up by persons in business .will not be recognized.” "

Texas Tram & Lumber Co. v. Hightower, supra, was ah original proceeding filed in the Supreme Court in which a writ of mandamus was prayed for to compel the judge'of the Sixtieth judicial district of Texas to enter judgment upon á verdict alleged to háve been returned into court at the April term .of the trial court. It appeared that the verdict of the- jury was returned into court on the last day of the term, 3 minutes past 12 o’clock by railroad time, but at least 15 minutes before 12 o’clock p. m; by sun time. The Supreme Court held that sun time governed in determining the expiration of the term of the court, and awarded the writ. In passing upon the question the Supreme Court, in part, said:

“We" see no reason to doubt that when the . Legislature prescribes the times at which a term of the court shall begin and shall end the true time at the place of holding the court is meant.”

Likewise, this court can see no good reason to doubt that, when the Legislature prescribes the time at which saloons shall close at night in this state, the true or sun time is meant.

“Certainly no reasonable objection can be urged against the recognition of sun time as the correct time by which matters of that character * * * should be regulated.”

In the ease before us the trial court, as shown by his conclusions filed, determined as a matter of law that the hour at which appellant’s place of business should have been closed was controlled by standard time, and therefore, under the evidence, was kept open and business conducted therein after 9:30 o’clock p. m. on May 15, 1915. In this conclusion of the. law we think the court erred. The evidence is insufficient to show that the rathskeller or cabaret run by appellant in connection with his saloon was open and business conducted therein after 9:30 o’clock p. m., true or sun time. The court in his conclusions of fact finds that the time when business was. being conducted therein and the 9:30 closing law thereby violated was 9:45 p. m. standard time or railroad time. We take judicial cognizance of the fact that standard or railroad time at Dallas, Tex., is the actual or sun time along the ninetieth degree of longitude ' west from Greenwich; that city, where it is alleged the violation occurred, is approximately. on longitude 96° 52’ 30" west from Greenwich, and that there is a difference of 4 minutes in time for every degree of longitude. Therefore, according to sun time, and the evidence adduced, appellant’s cabaret or rathskeller was not open and business being conducted therein after 9:30 o’clock p. m., and the judgment of the district court must be reversed.

The contention of appellee that “appellant having failed to raise in the trial court, either by pleading or proof, the question here presented, as to the character of time by which the daily closing of Texas saloons is regulated, such .question cannot be raised on appeal in this court, is not well taken. We are inclined to the opinion that appellant’s pleadings, as well as the evidence, were sufficient to rais.e the question in the district court; but if not raised by the pleadings it was distinctly raised in appellant’s motion for a new trial in that court. The appellant, in his petition filed in the district court', denied that his place of business was kept open and business conducted therein after 9:30 o’clock p. m. on May 15,1915, and the character or kind of time which controlled was a question of law, Hence, regardless of whether the question was raised by the pleadings in the trial court, that court’s ruling, upon it is subject to review in .this court.

. We are asked to reverse the judgment of the district court and render judgment in this court in favor of appellant. . This we have concluded not to do. • The case was tried, and testimony offered, on. the theory that standard time, and not, sun time, govern-

ed in- determining the hour at which appellant’s place of business should have been closed, and we are not prepared to say that the case has been fully developed, and that it would be useless to remand it for another trial.

Therefore, for the reason indicated, the judgment of the district court is reversed, and the causé remanded for a new trial.
      <@=>For otter cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DUNKLIN, J.

text:
    MEYER et ux. v. MONNIG DRY GOODS CO. et al.
    (No. 8406.)

    (Court of Civil Appeals of Texas. Ft. Worth.
    June 17, 1916.
    Rehearing Denied Oct. 21, 1916.)
    1. Appeal and Error <§=1064(4) — Harmless Error — Instructions — Larceny — Definition.
    Error in omitting from definition of larceny the element that the property must have been taken from possession of the owner or a person holding it for him- is harmless, where the jury could not have found a taking without a taking from the owner’s possession.
    [Ed. Note, — For other cases, see Appeal and Error, Cent. Dig. § 4224; Dec. Dig. <§=1064(4); Trial, Cent Dig. § 525.]
    2. False Imprisonment <§=16(2) — Person Liable.
    Í” Where defendant merchant’s clerk pointed t plaintiff as the person who stole a locket trom the store to a policeman who directed the clerk to catch plaintiff, and plaintiff wás thereby caught and arrested without warrant, regardless of whether the arrest was lawful, the merchant was not liable ;^ihe arrest being the officer’s independent act. 1
    [Ed. Note. — For other cases, see False Imprisonment, Cent. "Dig. §§ 45-61; Dec. Dig. <§= 15(2).]
    Appeal from District Court, Tarrant' County; R. B. Young,' Judge.
    Action by William Meyer and wife against, the Monnig Dry Goods Company and others. Judgment for defendants, and plaintiffs appeal.
    Affirmed.
    Cummings & Whiteside and C. B. Ambrose,, all of Ft. Worth, for appellants. E. T. Murphy, of Ft. Worth, for appellees.

      Application for writ of error pending in Supreme Court.

   DUNKLIN, J.

William Meyer and his wife, Ethel Meyer, instituted this suit against, the Monnig Dry Goods Company, a corporation, William Monnig, its president, and O. E. Wandry, manager of its retail department, for damages for alleged malicious. prosecution and false imprisonment of Mrs.. Ethel Meyer, and from a judgment in favor of the defendants, plaintiffs have ap- ■ pealed.

The .proof showed that Mrs. Meyer was-arrested and imprisoned in the city jail on a charge of theft of a locket from the store of the defendant corporation, and that the locket alleged to have been stolen was found in her possession when she was arrested. Her explanation of such possession was that,, she had found it on one of the public streets of the city.

The trial judge instructed the jury that, i£ they should find that Mrs. Meyer stole the locket, then a verdict should be returned in favor of the defendants, and upon that instruction alone such a verdict was returned, and the judgment was rendered' thereon.

Appellants make no contention in this court that the evidence was insufficient to prove the theft, and hence the finding that Mrs. Meyer stole the locket must be accepted as conclusive of that fact, if the charge of the court upon that issue was correct, and that question will now be discussed.

Paragraphs Nos. T and 2 of the court’s charge upon which the jury returned a verdict are as follows:

“First. ‘Theft,’ as defined by our statutes, is the unlawful and fraudulent taking of corporeal personal property belonging to another, without his knowledge or consent, and with the intent to deprive the owner of said property of the value thereof, and to appropriate. same Iso the use and benefit of the person so taking.
“Second. Now, if you find and believe' from the evidence in this case that the plaintiff Mrs. Ethel Meyer, on or about the 24th day of D¿- „ cember, A. D. 1914, took from the possession of the defendant Monnig Dry Goods Company a certain locket, and that such taking of same constituted theft, as the same is above defined, then you will find for the defendant, and you will r£ "“turn a verdict immediately following this instruction, and need not consider any other portions of this charge. You are instructed, however, that the burden of proof is upon the defendant .to show that the plaintiff Mrs. Ethel Meyer acquired the locket in such a manner as that its acquisition comes within the meaning of the term ‘theft,’ if you find such to be the case -as same is herein defined.”

The statutory definition of theft is as follows : i

“ ‘Theft’ is the fraudulent taking of corporeal personal property belonging to‘another from his possession, or from the possession ot some person holding the same for him, without his conv -sent, with intent to deprive the owner of the value of the same, and to appropriate it to the use or benefit of the person taking.” Texas Penal Code, art. 1329.

It will be observed that the definition of theft given in the first paragraph of the charge omits the words “from his possession, or from the possession of some-one holding the same for him” after the words “belonging to another”; and several assignments of error are predicated upon that omission as* reversible error.

Notwithstanding that omission, the jury could not have found that Mrs. Meyer stole the locket without finding that it was taken from the possession of the Monnig Dry Goods Company, as the court plainly instruct-, ed in -the second paragraph of the charge; hence the error in the definition of “theft” contained in the first paragraph of the charge was harmless.

Appellants insist further that the court erred in the second paragraph of the charge In instructing the jury, in effect, that if Mrs. Meyer was guilty of theft charged, that fact would of itself preclude a recovery, even though it should appear that in making the arrest the preliminary legal steps necessary for a proper arrest were not followed. It is insisted that the offense was not of such a character nor committed under such circumstances as to authorize an arrest without a warrant, and that, as the arrest of Mrs. Meyer was made without a warrant, it was' unlawful, and, further, after the arrest was made, the officer making it, in violation of his statutory duties, failed to immediately take Mrs. Meyer before a magistrate, to the end that she be given an opportunity to furnish bail and thereby avoid incarceration, and that therefore her imprisonment was likewise, unlawful.

The proof shows that the theft was committed on December 24, 1914, and that the arrest was made two days later when Mrs. Meyer returned to the store of the Monnig Dry Goods Company. While she was in the store on that occasion, Police Officer D. P. Stanley appeared in the . store in obedience to a request by defendant Wandry that the theft be investigated. While the officer was discussing the matter with Wandry, the latter pointed out»-Mrs. Meyer to him as the guilty person. |f Thereupon Mrs. Meyer ran out of the store-through a rear door leáding into an alley, and from the alley turned into one of the public streets, where she was overtaken and held by the arm by R. B. Baker, a salesman in the store of the Monnig Dry-Goods Company, until the arrival of the officer, who then took her in custody and immediately imprisoned her in the city jail. This act of Baker was in obedience to an order-to him from the police officer, who left, the building by another door, to the end that. Mrs. Mfeyer should not escape. The officer-had no warrant for the arrest at the time, but later a complaint was duly filed, a warrant issued, and Mrs. Meyer duly tried in the county criminal court, at which trial she was acquitted. When she was arrested the. stolen locket was found upon her person. Appellees insist that the arrest was lawful, and in support of that contention cite article 364 of our Code of Criminal Procedure, which reads:

“All persons have a right to prevent the con-, sequences of theft by seizing any personal property which has been stolen, and bringing it, with the supposed offender, if he can be taken," before a magistrate for examination, or deliver-' ing the same to a peace officer for that purpose. To justify such seizure, there must, however, be reasonable ground to suppose the property to be stolen, and the seizure must be openly made arid -the proceedings had without delay.”-

They also cite decisions, including Garcia v. Sanders, 90 Tex. 103, 37 S. W. 314, to which may be added Morris v. Kasling, 79 Tex. 141, 15 S. W. 226, 11 L. R. A. 398, according to which decisions it would seem that the statute last quoted, of itself, made the arrest, under the circumstances related, lawful. The statement of facts also, shows, that an ordinance of the city of Ft. Worthy was introduced in evidence, which also authorized the arrest without a warrant.

But áside from that question the evidence shows conclusively that the arrest and prosecution were solely upon the volition of the policeman and other public officers, and not upon request or direction of any of the defendants. Defendant Wandry, as it was his legal right and duty to do, reported the theft to the policeman and pointed out to him Mrs. Meyer as the guilty person.’ He did nothing more ■ than that. Even if he had requested the arrest, it could not be presumed that he thereby intended jm unlawful,,arrest. There was no evidence whatever that the act of Baker in pursuing and stopping Mrs. Meyer in her flight, and detaining her until the arrival of the officer, who then took her in custody, was in any manner authorized, instigated, or directed by any of the defendants, but was by reason alone of the order of the officer so' to do, and therefore they are not responsible therefor. And neither he nor the officer was made a party defendant in the suit. Hence, even though it should be said that in arresting Mrs. Meyer the officer did not follow the preliminary legal steps necessary to make the arrest strictly lawful, the evidence conclusively shows that the defendants are not liable for any damages resulting therefrom, or from \the incarceration which followed the arrest. \

Hollowing paragraphs^ and 2 of the charge, other instructions were given in the form of special issues, which the jury were told to answer in the event, and in the event only, they should find that Mrs. Meyer did not steal the locket. Upon those issues the jury made no findings. Several assignments are addressed to those instructions, but all of ■them are overruled, since any errors therein,' if errors there be, were clearly harmless.

The foregoing conclusions require an af-firmance of the judgment without any discussion of the further questions' presented by appellees that in other respects the plaintiffs failed to establish the essential elements of the cause of action asserted.

Judgment affirmed.
      j§=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, C. J.

text:
    GOODSON v. HOUSTON & T. C. R. CO.
    (No. 613.)
    (Court of Civil Appeals of Texas. El Paso.
    Oct. 26, 1916.)
    1. Tbial <@=3362 — 'Verdict— Correction by Juby After Discharge.
    After a jury was discharged,' its verdict could not be reformed by changing the answer to a special issue from “no” to “yes,” although the jury appeared in open court in a body and asked the court in writing to make such change.
    [Ed. Note. — Eor other cases, see Trial, Cent. Dig. §§ 865-868; Dec. Dig. <@=3.362.]
    2. Master and Seevant <@=>297(2) — Verdict —Inconsistency in Findings.
    That a 'jury, by finding on. a special issue that plaintiff’s injury was not directly caused by the fall which was claimed due to 'défendant’s negligence, made their verdict one for the defendant, did not make it conflicting and inconsistent, because thereafter in the same verdict there was a finding as to the amount of damages suffered.
    [Ed. Note. — For other cases, see' Master and Servant, Cent. Dig. § 1196; Dec. Dig. <@=> 297(2).]
    8. Appeal and Eeeoe <@=>501(4) — Record — Showing Application pob Submission op Special Issues.
    Where the record does not disclose that assignments of error for refusing to give special charges requested are supported by bills of exceptions showing proper and timely application to the court for such submission, the assignments are not reviewable.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2304; Dec. Dig. <@=>501(4).]
    4. Appeal and Eeeoe <@=>501(4) — Necessity op,Objections in Court Below — Instructions.
    Where the record does not disclose that the trial court’s charge complained of was objected to and exception taken as required by statute, alleged errors in the charge are not reviewable.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2304; Dee. Dig. <@=>501(4).]
    5. Appeal and Eeeoe <@=>1170(11) — Reversal — Prejudice to Appellant’s Substantial Rights.
    Judgment for defendant in an action for injuries caused by a negligently constructed scaffold was not reversible for refusal by the trial court to grant a new trial because judgment for defendant was contrary to the law and evidence, where the evidence, although disputed, was so meager upon whether plaintiff’s fall from' the scaffold caused his injuries as to justify an instructed verdict for defendant, in view of rule 62a (149 S. W: x), forbidding reversal for errors not prejudicial to appellant’s substantial rights.
    [Ed. Note. — For other. cases, see Appeal and Error, Cent. Dig. §§ 4066, 4544; Dec. Dig. <S=> 1170(11).]
    Appeal from. District Court, Burleson County; Ed. R. Sinks, Judge.
    Action by Charles A. Goodson against the Houston & Texas Central Railroad Company. From a judgment for defendant, plaintiff appeals.
    Affirmed.
    W. M. Hilliard, of Caldwell, for appellant. Bake^, Botts, Parker & Garwood, • of Houston, R. S. Bowers, of Caldwell, and Stribling & Stribling, of Waco, for appellee.
   HARPER, C. J.

Appellant sued the appel-lee in the district court of Burleson county to recover damages on account of personal injuries alleged to have been received by him while in the employ of appellee as a member of a bridge gang in repairing a bridge on its main line near Mexia, Tex.; the injuries complained of being double hernia, alleged to have been sustained by reason of falling from a- scaffold constructed under the bridge by his fellow workmen, and from which he fell by reason of the unsafe condition of the scaffold, made so through the negligence of his fellow workmen, whose duty it was to construct the scaffold in a proper manner. The scaffold consisted of a long plank resting on crosspieces of timber suspended from tbe bridge beams by ropes; and tbe unsafe condition of tbe scaffold was caused by bis fellow workmen placing tbe plank on tbe crossbeams in such a manner that, when be got on tbe scaffold and walked toward one: enct of it, tbe bending of tbe plank from bis weight caused it to slip off at one end and throw him to tbe ground, which caused double hernia.

Tbe appellee, aside from general and special exceptions and a general denial of n'eg-ligence, interposed pleas of contributory negligence and assumed risk. Tbe ease was submitted to tbe jury upon special issues by .the following charge of tbe court, which issues were answered .as indicated by tbe answer set opposite each special issue. The court, upon tbe findings of tbe jury, rendered judgment for the defendant.

“Special Issue No. 1: Did the plaintiff, Chas. A. Goodson, fall from a platform erected by the defendant company while working, upon one of its bridges.? Ans. Yes.
•“Special Issue No. 2: If you answer ‘Yes’ to special issue No. 1, then did such fall directly cause the hernia which the plaintiff.had? Ans. No. • /
“Special Issue No. 3: Was the defendant guilty of negligence in the erection of the platform upon which the plaintiff was working -at the bridge? Ans. Yes.
“Special Issue No. 4: Was the platform upon which the plaintiff was working unsafe for a person to work upon? Ans. Yes.
“Special Issue No. 5: If to special issue'No. 4 you answer .‘Yes,’ then was the unsafety of the same known to the plaintiff? Ans. No.
“Special Issue No. 6: If you answer to special issue No. 4 that the said platform-was unsafe, then was its unsafe condition open and obvious to the plaintiff? Ans. Yes.
“Special Issue No. 7: Was the plaintiff guilty of contributory negligence' in causing the injury, if any, to himself? Ans. Yes.
“Special Issue No. 8: If you find that the plaintiff had' been injured,, and thereby suffered damages, then how much damages has he sustained? Ans. $455.00.
“In connection with special issue No. 8 you are instructed, as to damages, that the same should be assessed at such sum of money as, if* paid in hand at this time, will fairly and justly- compensate him for the injuries alleged by him in. his petition, and which you find from the evidence he has sustained, if any; and in^ doing so you will take into account the mental’ and physical pain suffered by him, and that will be suffered by him in the future, on. account thereof, if any, and the earnings lost by him up to this time on account thereof, if any:
“In this connection you are charged that if you find that the defendant has been guilty of negligence, and you further find that the plaintiff has been guilty of contributory negligence, then, as to the damages, you will diminish the same in proportion as to the negligence of the defendant and of the plaintiff, if any.”

Tbe next morning after this verdict and judgment was rendered, and after they bad been discharged, tbe jury appeared in open court in a body, and, by writing, asked tbe court to reform tbe verdict, so that tbe answer to special issue No. 2 would be “Yes,” and that tbe answer to special issue No. 6 would be “No,” and counsel for appellant requested tbe court to swear them, both of wbicb was refused. Tbis refusal is. urged as. error, by assignments 1 and 2. Tbis was not error. “Tbe Supreme Court of tbis state bás adopted tbe broad rule that jurors will not, in civil cases, be permitted to 'attach tbeir verdicts in tbis way.” Railway Co. v. Ricketts, 96 Tex. 71, 70 S. W. 315. Tbis might' have ’ been done' prior to tbeir discharge from the. case, but not afterwards. Hirsch v. Jones et al., 42 S. W. 604.

Tbe third is that tbe verdict does not am tborize judgment for defendant, but that judgment should have been for tbe plaintiff. Tbe fourth is that the verdict is inconsistent and conflicting, and therefore will not sup* port judgment-for defendant. The fifth is that tbe court erred in rendering judgment contrary to tbe intentions of tbe jury.

It is apparent that,the jury intended to give tbe plaintiff a verdict for $455, but tbe question here is: Did they find tbe necessary facts in bis favor upon wbicb to predicate a judgment? To enable the court to find for plaintiff tbe jury must, under tbe law, have first found by tbeir verdict that tbe injuries complained of were directly and proximately caused by tbe fall from tbe alleged unsafe platform; tbis they have not done, but have in fact found to the contrary. Tbe fact that tbe jury have found tbe facts .to be such that it is a verdict for tbe defendant does not make it conflicting and inconsistent because thereafter, in tbe same verdict, there is a finding as to tbe amount of damages suffered. ■

That the jury might, under a general, 'charge, find a verdict for damages in favor of a plaintiff, without first having found tbe facts upon wbicb such verdict in his favor could be based, is tbe reason for tbe statute requiring tbe court to submit tbe cause upon special issues, if requested to do. so by either party to the suit, and permitting him to do so upon bis own motion.

Was tbe judgment entered contrary to tbe intentions of the jury? Tbe appellant says it is, because the jury in a body came into court tbe next day and in writing so informed the court. How did they discover that such was tbe case? Unquestionably, by having received evidence, or argument, or both, after leaving tbe jury box; so to now -bold that because tbe jurymen by next morning, by some means unknown to tbe court, concluded that tbe verdict as rendered immediately after tbe case was submitted was not an exact expression of tbeir intention would in effect be to license attorneys to practice upon jurymen outside of court, and, ií that should be, few causes would be settled by one trial.

Tbe sixth, seventh, ninth, and tenth urge that tbe court erred in refusing to give special charges requested by appellant, and erred in certain particulars in its main charge, and must be overruled for tbe reason that the record does not disclose that the assignments are supported by bills of exceptions showing proper and timely application to the court for submission of the special issues (Moore v. Pierson, 100 Tex. 113, 94 S. W. 1132), nor show that the portion of the court’s charge complained of was objected to and'exception taken as required by statute (Waterman L. Co. v. Phelps, 175 S. W. 742).

The eighth is:

“The court erred in refusing to grant plaintiff a new trial, for the reason that the verdict and judgment is contrary to the law and the evidence in this: The undisputed evidence shows that said platform was negligently constructed by the defendant; second, that this was unknown to the plaintiff; third, that as a result of said negligence of the said defendant said platform fell with the plaintiff, and that he was injured thereby.”

This assignment must be overruled because, if we concede that the undisputed ■evidence shows a negligently constructed ■platform, that the defect was unknown to appellant, and that it fell with him, we are ■nevertheless of the opinion that the evidence is so meager upon the latter, that plaintiff’s injuries were caused by the fall, .as to justify an instructed verdict for the defendant Rule 62a (149 S. W. x).

Eor the reasons given, the assignments are ■overruled, and cause affirmed.
      S§=>For other cases see same tonic and KEY-NUMBER in all Key-Numbered Digests and Indexes