author: CONNER, C. J.

text:
    SWEETWATER LUMBER CO. v. HAMNER.
    (Court of Civil Appeals of Texas. Ft. Worth.
    Dec. 6, 1913.)
    Contracts (§ 335) — Building Contract-Materialman — Action Against Owner-Assignment.
    Where a petition by a materialman against an owner for materials furnished to the contractor for the building alleged that the contractor was indebted to plaintiff on account of materials furnished for the building in a greater sum than $500, and was still so indebted; that the contractor, to secure payment to plaintiff therefor, gave it an order on defendant to pay plaintiff $500; that plaintiff delivered the assignment to defendant, who accepted the order and promised to pay it out of the sums owing by him to defendant as they became due under the contract; that the contract has been performed, and the work completed, and the indebtedness of the contractor for materials has been paid, except the debt sued on, etc. — the petition was not fatally defective because it failed, to allege that the contractor had furnished receipts for material used in the construction of the building, as required by the contract.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1664-1676; Dec. Dig. § 335.]
    Appeal from Nolan County Court; John H. Cochran, Jr., Judge.
    Action by the Sweetwater Lumber Company against Ed. J. I-Iamner. Judgment for defendant, and plaintiff appeals.
    Reversed and remanded.
    J. F. Eidson and Crane & Bondies, all of Sweetwater, for appellant. Ellis Douthit and Geo. T. Wilson, both of Sweetwater, for ap-pellee.

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

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

   CONNER, C. J.

The appellant company instituted this suit against appellee, and as the basis of recovery sought presented a petition, which, omitting formal parts, reads as follows:

“That heretofore, to wit, on or about September 19, 1911, Hugh Martin, a contractor and builder, was engaged in the erection and construction in Sweetwater, Texas, of a home building for the defendant herein under a contract, the nature and terms of which are well known to the defendant, he being a party thereto, but unknown to these plaintiffs, except so far as herein stated. That at the time -named said Hugh Martin was indebted to plaintiffs for and on account of materials furnished for and used in the construction of said home in a sum greater than $500, and is still so indebted. That at the time named the defendant herein was indebted to said Martin for and on account of labor, done and performed in the construction of said home in the sum of $263.65 and more, to the completion of said work upon his said home, plus $1,041 and more, due him when receipts for the materials used thereupon were obtained. That, in order to secure the payment to plaintiffs of the amount so owing to them as aforesaid, said Martin gave to plaintiffs an order upon the defendant requesting and requiring him to pay to plaintiffs said sum of $500. That plaintiffs presented and delivered said order and assignment to defendant on or about September 19, 1911. That on the date last named defendant accepted said order and assignment by his certain letter in writing, and promised therein to pay said sum to these plaintiffs out of the sums aforesaid owing by him to defendant as and when they became due and payable under the conditions stated aforesaid. That said conditions have been met, in that said work has been completed, and the indebtedness of said Martin for and on account of materials has been paid off and satisfied, except the debt sued upon herein. Plaintiffs say further, if they are mistaken in saying that all indebtedness of said Martin for materials has been paid (which they do not admit, but insist that the same has been paid), that such fact does not constitute reason why the defendant should not pay them herein, for that the debt sued upon is on account of such materials furnished. and used in said home building.
“(2) They say that on or about the date of the contract sued upon the defendant, vi et armis, drove the said Hugh Martin, his agent and employes, away from and off the works and improvements being carried forward on his said homestead, and has ever since refused to permit the said Hugh Martin, his agents or employes, to conduct said work. That at such time there was due and owing to the said Hugh Martin under his contract with defendant herein the sum of $1,304.65. That said work was practically if not entirely completed. That, to carry said work to completion, and to pay off debts for materials, etc., owing by said Hugh Martin on account of said work, there was necessary to be expended about the sum of $804.65. That there was therefore then due and owing said Hugh Martin on account of said work the sum of $500.
“(3) That the defendant is accordingly liable and bound to pay these plaintiffs said sum of $500; but, though often thereunto requested, he has hitherto wholly failed and refused, and still fails and refuses, to pay the same or any part thereof, to plaintiff’s damage in the sum of $600.
“(4) Wherefore, plaintiffs sue, and pray that defendant be cited to appear and answer herein, and that upon hearing hereof they have judgment for their said damage, with interest and costs of suit, and for such other and further relief as they may be entitled to.”

The court erred, we think, in sustaining ap-pellee’s general demurrer to the petition. Indulging in its favor all reasonable intend-ments, as is the rule when challenged by general demurrer, the petition sufficiently charges appellee with an indebtedness which he promised, in writing, to pay to appellant. If the contract between appellee and Martin be subject to conditions which will .defeat the alleged indebtedness to Martin, the matter is defensive in character, and lies particularly within the knowledge of appellee. The mere, failure of Martin to obtain and furnish receipts for material used in the construction of appellee’s building would not defeat the indebtedness to Martin, if such indebtedness actually existed as alleged, and the failure of the petition to aver that such receipts were obtained, does not, in view of all the allegations, render the petition fatally defective.

The court also sustained several special exceptions ; but we will not discuss them. It is to be presumed, we think, that appellant would have corrected by amendment any formal omission or defect in his petition called for by a special exception had the court overruled the general demurrer. It certainly would be useless to so attempt after the court had ruled that the petition was wholly bad on the general exception.

It is ordered that the judgment be reversed, and the cause remanded.


source: Caselaw Access Project

author: SPEER, J.

license: Public Domain

text:
    GAMER CO. v. NEWBERG.
    (Court of Civil Appeals of Texas. Ft. Worth.
    Oct. 25, 1913.)
    Double Recovery — Not Permitted.
    Where plaintiff’s account for labor and materials on a plumbing job could not. properly amount to more than $92.25, including profit to him as a contractor, items of 20 per cent, added to cover matters possibly overlooked and $52 for personal services were in the nature of a double recovery, and not permissible.
    Appeal from Tarrant County Court; Chas. ,T. Prewett, Judge.
    Action by the Gamer Company against C. A. Newberg, with counterclaim by defendant. Judgment for plaintiff, and it appeals. Reversed, and judgment for a certain amount rendered for plaintiff.
    F. H. Haddix, of Ft. Worth, for appellant. Crenshaw & Boykin, of Ft. Wlorth, for appel-lee.
   SPEER, J.

Chas. Gamer sued C. A. New-berg to recover $299.20 upon a verified account for certain plumbing materials sold and delivered by the plaintiff to the defendant. The defendant answered, pleading a counterclaim of $163 according to an itemized’ account for labor and material furnished to plaintiff in making certain plumbing repairs. The defendant admitted the correctness of plaintiff’s account, except the sum of $15, and during the progress of the trial paid $135 in open court. A jury trial resulted in a verdict and judgment in favor of plaintiff for the sum of $11.20, and the plaintiff has appealed.

The admission of certain testimony is complained of in the first assignment of error; but appellee insists that the error has been waived since the same or similar testimony was adduced by appellant himself. But, however this may be, a disposition of this assignment becomes unnecessary, for we are compelled to sustain the remaining assignments to the effect that the judgment is not supported by the evidence. Necessarily, the verdict and judgment allow ap-pellee’s full counterclaim, while his own testimony, which is all there is to support it, shows that he is entitled to a much less sum. We have carefully read all the evidence, and are of the opinion it is insufficient to support appellee’s counterclaim in excess of $92.25. His testimony makes it very clear that this sum is a reasonable compensation for all the labor and material furnished by him, and includes a profit or compensation to him as contractor, so that the items of “20 per cent, added on to cover something he may have overlooked” and $52 for his personal services were improperly allowed. They constituted in effect a double recovery. The judgment of the county court of Tarrant county for civil eases is therefore reversed, and judgment here rendered in favor of appellant for the amount sued for, less $227.25, or the aggregate of the sum paid during the trial, and the account proved.

Reversed and rendered for appellant.


author: . SPEER, J.

text:
    BLACK v. TEXAS & P. RY. CO.
    (Court of Civil Appeals of Texas. Ft. Worth.
    Nov. 1, 1913.
    Rehearing Denied Nov. 29, 1913.)
    1. Abatement and Revival (§ 54) — Death (§ 47) — Survivorship.
    In an action by a surviving widow for personal injuries to her deceased husband, the petition, which did not allege whether the injuries received did or did not result in his death, failed to state a cause of action, either under Rev. Civ. St. 1911, art. 4694, providing an action for wrongful death, or article 5686, providing that causes of action for personal injuries other than those resulting in death shall not abate by reason of the death of the injured person; the latter action not surviving at common law, and the former being wholly a creature of statute.
    [Ed. Note. — For other cases, see Abatement and Revival, Cent. Dig. §§ 255-258, 261-270; Dec. Dig. § 54 ; Death, Cent. Dig. § 61; Dee. Dig. § 47.*]
    2. Abatement and Revival (§ 54) — Personal Injuries — Death op Party.
    No aetion can be maintained under Rev. Civ. St. 1911, art. 5686, providing that rights of action for personal injuries not resulting in death shall survive, unless the injury did not cause decedent’s death.
    [Ed. Note. — For other cases, see Abatement and Revival, Cent. Dig. §§ 255-258, 261-270; Dec. Dig. § 54.]
    Appeal from District Court, Taylor Coun-, ty; Thomas L. Blanton, Judge.
    Action by Mrs. W. C. Black against the Texas & Pacific Railway Company. From a judgment for defendant, plaintiff appeals.
    Affirmed.
    Scarborough & Hickman, of Abilene, for appellant. Cunningham & Sewell, of Abilene, for appellee.

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

   . SPEER, J.

Mrs. W. C. Black, the surviving widow of W. C. Black, who died on about the 1st of June, 1912, brought this suit against the Texas & Pacific Railway Company to recover damages for alleged personal injuries received by the deceased, and, from a judgment sustaining a general demurrer to her- petition and dismissing her cause of action, has appealed.

It is unnecessary for us to state the character of injuries received by the deceased or the grounds of negligence relied on by appellant, since these could in no manner affect the conclusion we have reached. Appellant’s suit is not a death action brought under article 4694, Revised Civil Statutes 1911, for it is nowhere alleged that the injuries received by the1 deceased resulted in his death. The cause of action in deceased’s favor abated at common law, and did not survive to his heirs and legal representatives, unless it comes within the scope of article 5686, Revised Civil Statutes 1911. That article provides that causes of action for personal injuries other than those resulting in death shall not abate by reason of the death of the injured person. Appellant's petition, however, nowhere alleges that the deceased’s injuries did not result in his death. She, therefore, has not brought herself within the article last cited. Ellyson v. I. & G. N. R. Co., 33 Tex. Civ. App. 1, 75 S. W. 868. The court properly sustained the general demurrer to appellant’s petition, and the judgment is affirmed.

Affirmed.


author: DUNKLIN, J.

text:
    BENNETT et al. v. FOSTER.
    (Court of Civil Appeals of Texas. Ft. Worth.
    Nov. 1, 1913.)
    1. Malicious Prosecution (§ 58) — Wrongful Garnishment — Evidence—Pause Representations — Opinion.
    In. an action for wrongful garnishment, in a suit against plaintiff as surety on notes executed for the value of stock sold to A., evidence that plaintiff was induced to sign the notes as surety by the representations of L., who was negotiating the transaction, that A.’s father would advance money with which to pay off the notes as soon as the sale of the stock to his son was consummated, etc., was objectionable as a mere expression of opinion on L.’s part, on which plaintiff had no right to rely.
    [Ed. Note. — Por other cases, see Malicious Prosecution, Cent. Dig. §§ 117-124; Dec. Dig. § 58.]
    2. Malicious Prosecution (§ 58) — Wrongful Garnishment — Evidence.
    Where, in an action for alleged wrongful garnishment arising out of plaintiff’s signing as surety notes of A. given by him in a stock transaction, plaintiff claimed that he was induced to sign the' notes by D., and it was an issue in the case whether L. was an agent of defendants, evidence by defendant B., who conducted the negotiations in behalf of the other defendants as well as himself, that during their pen-dency plaintiff, A., and L. all came to the corporation’s plant, investigated its financial condition, and later L. told him that plaintiff would make the trade if witness would give him 110 shares of stock in the corporation, which witness refused to do, and thereafter plaintiff and E. told witness that P., who was admittedly defendants’ agent, had agreed to give 10 shares of his stock coming to him as a commission on the sale in order that the trade might be consummated, was admissible as tending to 'show knowledge on the part of the witness that L. was assumed to be acting as the agent of all of the defendants in the sale of the stock to A. and a ratification of his own acts as such.
    [Ed. Note. — Por other cases, see Malicious Prosecution, Cent. Dig. §§ 117-124; Dec. Dig. § 58.*]
    3. Evidence (§ 317) — Hearsay.
    In an action for wrongful garnishment arising out of plaintiff’s signing as surety notes given by A. for the price of corporate stock, evidence that during the negotiations for the sale P. told plaintiff that B., who was attempting to complete the transaction, was to receive from defendants $1,000 of the stock as a commission for making the sale was objectionable as hearsay.
    [Ed. Note. — Por other cases, see Evidence, Cent. Dig. §§ 1174-1192; Dec. Dig. § 317.]
    4. Evidence (§ 471) — Conclusion oe Witness.
    In an action for wrongful garnishment, a question to plaintiff, asking him, from the management of his business, his experience, capital, etc., what his reasonable income would be for the next three years after he was closed out, if he had not been interfered with by reason of the garnishment, was objectionable as calling for a conclusion; it being the province of the jury to estimate the profits plaintiff would have made-in the future from all the facts and circumstances in evidence.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2149-2185; Dec. Dig. § 471.]
    5. Trial (§ 256) — Instructions—Measure of Damages.
    In an action for wrongful garnishment, an instruction that if the jury found that the writ-was wrongfully issued, plaintiff should recover for such actual loss as was the natural, direct, and proximate result of the service of the writs was not objectionable as failing to give the jury any rule for measuring such actual damages, but was good as far as it went; it being the duty of defendants to request a more specific instruction if they desired it.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 628-641; Dec. Dig. § 256.]
    6. Trial (§ 251) — Instructions — Applicability to Pleading. -
    Where no actual damages were claimed for the levy of a garnishment, the court properly refused a request to charge that the jury should measure the actual damages by the reasonable market value of the property, taken with the legal interest from the time of taking to the time of the trial.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 587-595; Dec. Dig. § 251.]
    ■7. Trial (§ 261) — Instructions — Partial • Invalidity.
    Where an instruction is partially bad, it may be entirely refused.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 484, 660, 671, 673, 675; Dec. Dig. § 261.]
    8. Malicious Prosecution (§ 58) — Wrongful Garnishment — Pleading — Effort to Compromise Debt.
    In an action for wrongful garnishment, it was not error to overrule defendants’ special exception to a portion of plaintiff’s petition, alleging an effort to compromise the debt for which the former suit was instituted, made prior to the garnishment, and to permit proof thereof.
    [Ed. Note. — For other cases, see Malicious Prosecution, Cent. Dig. §§ 117-124; Dec. Dig. § 58.]
    9. Malicious Prosecution (§ 52) — Malicious Issuance of Writ — Exemplary Damages.
    "Where, in an action for wrongful "garnishment, plaintiff’s petition alleged that the garnishment writ, as well as'the attachment, was sued out wrongfully and maliciously and without probable cause, and actual damages were claimed, they were recoverable if proved; and hence exceptions to the claim for exemplary damages, .on the ground that no actual damages were sufficiently pleaded, were properly overruled.
    [Ed. Note. — For other cases, see Malicious Prosecution, Cent. Dig. § 100; Dec. Dig. § 52.],
    10. Malicious Prosecution (§ 67) — WRONGFUL GARNISHMENT — Damages.
    Where, in an action for wrongful garnishment, plaintiff claimed that the levy and subjection of certain shares of corporate stock resulted in damage, and that he lost an opportunity to exchange the stock for certain vendor’s lien notes, the claim for the value of such notes with interest was a proper element of damage.
    [Ed. Note. — For other cases, see Malicious Prosecution, CentDig. §§ 155, 156; Dec. Dig. § 67.]
    11. Malicious Prosecution (§ 67) — Wrong-eul Garnishment — Loss of Business — . Profits.
    Loss of prospective profits in plaintiff’s business as the result of a wrongful issuance and service of garnishment cannot be recovered as actual damages, but may be looked to to estimate punitive damages, if a proper predicate is established therefor.
    [Ed. Note. — For other cases, see Malicious Prosecution, CentDig. §§ 155, 156; Dec. Dig. § 67.]
    12. Malicious Prosecution (§ 64) — Wrongful Garnishment — Damages — Loss of Profits — Evidence.
    In an action for wrongful garnishment alleged to have resulted in the loss of plaintiff’s business as a broker, evidence held insufficient to establish the extent of plaintiff’s loss and the value of his business, and not to justify a recovery of the profits he might have made in succeeding years.
    [Ed. Note. — For other cases, see Malicious Prosecution, CentDig. §§ 151-153; Dec. Dig. § 64.]
    Appeal from District Court, Baylor County; Jo. A. P. Dickson, Judge.
    Action by J. S. Foster against R. G. Bennett and others. Judgment for plaintiff, and defendants appeal.
    Reversed.
    Taylor & Humphrey, of Henrietta, Sporer & McClure, of Jaeksboro, and J. A. Wheat, of Seymour, for appellants. D. A. Holman and Glasgow & Kenan, all of Seymour, for ap-pellee.

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

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

   DUNKLIN, J.

This is the second appeal in this case, the disposition of the former appeal being reported in 152 S. W. 233. In a suit other than the present R. G. Bennett, W. A. Bennett, A. Power, and E. D. Power sued Chas. W. Abbott, and J. S. Foster upon three promissory notes executed by them, and also procured the issuance of an attachment upon an affidavit that Chas. W. Abbott was insolvent, and that J. S. Foster had disposed of his property in part for the purpose of defrauding his creditors. The attachment so procured was levied on certain real estate belonging to Foster. Later a writ of garnishment was sued out and served upon the Seymour Cotton Oil Company, in which company J. S. Foster owned 26 shares of the capital stock, and which was subjected to the writ. The present suit was instituted' by J. S. Foster against the plaintiffs in the former suit, to recover damages resulting from the wrongful issuance and service of the writ of garnishment. He alleged that he was a surety only upon the note upon which the former suit was instituted, and that he was not legally liable upon said note, for the reason that he was induced to sign the same by certain false and fraudulent representations made to him by the agents of the plaintiffs in the former suit. In the present suit a judgment was rendered in favor of Foster for the sum of $3,000 as actual damages, from which the defendants have appealed.

In his petition Foster alleges that by reason of the service of the writ of garnishment upon the Seymour Cotton Oil Company he was prevented from consummating a trade which had theretofore been negotiated, and by which he could and would have exchanged his 26 shares of stock in that company for vendor’s lien notes for the principal sum of $2,600 and bearing interest at the rate of 10 per cent, per annum. He alleged that at the time of the service of the garnishment his stock was not worth more than 80 cents on the dollar of its face value, and that by this trade he would have realized 100 cents on the dollar, and would also have realized interest upon the notes during the pendency of the former suit. He further alleged that since the service of the writ no revenue had been derived from .the stock. The damages claimed for the procurement and service of the garnishment was $520, the difference between the face value of the stock and its real value, and $758.26 for interest which he would have realized upon the vendor’s lien notes had said trade been consummated.

In another paragraph of the petition plaintiff alleged that the writs of attachment and garnishment were sued out without probable cause therefor, and that in procuring them the defendants were actuated by malice; that for a period of 10 years next preceding the institution of that suit plaintiff was “engaged as trader and broker in buying and selling and trading in corporation stock, vendor’s lien notes, and real estate and gin property as his occupation and support of himself and his family, which was well known to defendants.” He further alleged that at the time of the levy of the writs he had a capital of from $15,000 to $20,000, which was employed in the prosecution of his business, also an unimpaired credit, and that for the period of 10 years next preceding the levy of the writs he had realized annual profits from his business of $2,000; that by reason of the service of the writs his credit has been impaired, and he had been left without sufficient capital to prosecute his business, resulting in a complete breaking up of his business; that by reason of the service of the writ he had been unable to sell his capital stock garnished, and he had been thereby deprived of its use and benefit. Following those allegations occur the following: “That from plaintiff’s past experience in the management of said business, and from the annual earnings and income made by him therein for the past 10 years, he would reasonably have made $2,-500 per annum, all of which he must lose and be deprived of on account of the wrongful, malicious, and oppressive use of the writs aforesaid, to his damage in the sum of $7,500 for the loss of his said earnings therefrom. And for damages to plaintiff’s credit — the inconvenience, humiliation, and trouble occasioned by the breaking up of his business aforesaid, and because defendants in suing out and by service of said writs of attachment and garnishment did so wrongfully, and were actuated by malice, and with intent to vex and harass and oppress the plaintiff, and without probable cause — the said defendants, R. G. Bennett, W. A. Bennett, A. Power, and E. D. Power became liable to the plaintiff in the sum of $20,000 in exemplary damages.”

It was further alleged in plaintiff’s petition that the three promissory notes upon which the former suit was instituted were given in part payment for 104 shares of stock in the Seymour Mill, Elevator & Light Company, which were sold to Abbott by the defendants in this ease, acting through their agents, M. R. Fuller, and T. W. Larkin; that Foster was surety only upon said notes for Abbott, and was induced to sign the same upon the false and fraudulent representations made to him by said agents; in effect, that the stock then being sold was worth $1.14 for each dollar shown upon the face of the stock; and that Abbott’s father, who was wealthy, and who was anxious to get his son, C. W. Abbott, into business, would liquidate those notes so given, by advancements to his son as soon as C. W. Abbott could get settled into some kind of business. And further that the indebtedness of the Seymour Mill, Elevator & Light Company at that time would not exceed $13,000 over and above such indebtedness, as accounts and goods on hand belonging to the company were sufficient to liquidate; that each and all of said representations were untrue; that at the time said representations were made said company was insolvent, the stock so sold worthless, and that by reason of such misrepresentations plaintiff was not liable in any amount upon the promissory notes so signed by him. The jury were instructed, in effect, that if the alleged misrepresentations were made to Foster for the purpose of inducing him to sign the notes as surety for Abbott, and that he was induced thereby to sign them, then he was not liable thereon, and that if he was not liable upon those notes, then he could recover the damages actually sustained by him as a result of the service of the writ of garnishment mentioned above.

Plaintiff testified in part as follows: “I was induced to sign three notes by the representations which Fuller had made to me that -the stock was worth $1.14 on the dollar; that there was enough stock and merchandise, accounts and money, on hand with which to meet all of the indebtedness of the mill due and owing to the First National Bank, and to the statements that Larkin made to me about Abbott, he said that Abbott’s father was very wealthy, that Mr. Abbott had married lately into a very wealthy family,, and that his wife was spending too 'much money; that Abbott’s father had spoken to him some two or three times, and he, Larkin, said that as soon as Abbott’s father found out the trade had been made, the money would be sent him, and that the money would be sent him in 30 days, and that he, Larkin, was satisfied that it would be here in 30 days. These statements induced me to sign the notes.” That part of the testimony quoted relative to what Larkin told the plaintiff was objected to by the defendants at the time it was offered, one of the grounds of objection being, in effect, that such statements were hearsay, and not such as plaintiff had the legal right to reply on as an inducement to sign the note. We are of the opinion that upon this objection the testimony should have been excluded. Clearly the gist of the alleged statements by Larkin was an assurance that Abbott’s father would advance the money with which to pay off the three notes signed by his son and Foster as soon as the sale of the stock to his son was consummated. This was merely an expression of opinion and belief on the part of Larkin that Abbott’s father, who was in no way liable upon the notes, would advance to his son funds sufficient to satisfy them, and such opinion would not constitute a legal basis for Foster to escape liability upon the notes.

The issue whether or not Larkin was the agent of the defendants in this case in the sale of the stock above mentioned to Abbott was sharply contested by the defendants, each and all of whom testified that Fuller was the sole agent to negotiate such sale; that Larkin was never employed by them, and never acted as such agent within their knowledge; and error has been assigned to the refusal of an instruction requested by defendants that the jury should not consider, for any purpose, the testimony of plaintiff, Foster, relative to the alleged misrepresentations made to him by Larkin, and which he says in part induced him to execute the notes. The defendant W. A. Bennett, who seems to have conducted the negotiations in behalf of the other defendants, as well as for himself, in the sale of the stock, further testified that during those negotiations Foster, Abbott, and Larkin all came down to the mill and investigated its financial condition; tliat later Larkin came to Mm and told Mm that Foster would make the trade if Bennett would give Foster 110 shares of stock, which Bennett refused to do, and thereafter Foster and Larkin came to the mill and told Bennett that Fuller had agreed to give up 10 shares of stock coming to him as a commission on the sale in order that the trade might be consummated, to which proposition Bennett agreed after Fuller instructed him to do so. We are of the opinion that this evidence tended to show, although perhaps to a slight extent only, a knowledge on the part of W. A. Bennett that Larkin was assuming to act as the agent of the defendants in the sale of the stock to Abbott, and a consequent ratification of his acts as such agent; and therefore appellant’s tenth assignment of error is overruled.

Plaintiff further testified that during the negotiations for the sale of the stock to Abbott, Fuller told plaintiff that Larkin was to receive from the defendants $1,000 of the stock in the same company as a commission for making the sale to Abbott; This testimony was objected to on the ground that it was hearsay. Evidently it was offered for the purpose of proving Larkin’s agency to sell the stock to Abbott, and clearly it was subject to the objection urged. Accordingly appellant’s eleventh assignment of error is sustained.

The following question was propounded to the plaintiff: “Now, from the management of your business, your experience in the management of that business, and the capital you had, can you reasonably state to the jury what your reasonable income would have been for the next three years after you were closed out, if you had not been interfered with?” To this question plaintiff answered as follows: “I ought to have made as much in the next three years as I had made, which was about $2,000 or $2,500 per annum.” Defendant objected to the testimony upon the ground that it was a conclusion. This testimony was in support of plaintiff’s claim for loss of profits in his business occasioned by the service of the writ of garnishment. It was exclusively the province of the jury to estimate the profits that plaintiff would make in the future, from all the facts and circumstances in evidence, and the objection made to this testimony should have been sustained. It follows from this conclusion that appellant’s twenty-fourth assignment of error should be sustained.

Complaint is made of two different paragraphs of the court’s charge in which the jury were instructed, in effect, that in the event of a finding that the writs of garnishment and attachment were wrongfully issued, plaintiff should be allowed damages for such actual loss as was the natural, direct, and proximate result of the service of such writs. No actual damage was claimed in the petition for a wrongful levy of the writ of attachment, and it was possible error for the court to base any recovery of actual damages upon a wrongful issuance of that writ, but the instruction is not assailed upon that ground; the only objection being that such instruction did not give the jury any rule for measuring such actual damages. Aside from the criticism above suggested by us, we think the instruction was good so far as it went; and, if the defendants desired a more specific direction to the jury for the computation of the damages, they should have presented to the trial judge a request therefor.

Another error is assigned to the refusal of plaintiff’s requested instruction No. 14. In part, that instruction was that the jury should measure the actual damages for the wrongful suing out of the attachment and garnishment by the reasonable market value of the property taken, with the legal rate of interest thereon from the time of taking to the time of the trial. As no actual damages were claimed for the levy of the writ of attachment, this portion of the instruction was inapplicable; and, as other portions of the requested instruction to the actual loss sustained by the plaintiff for wrongfully suing out and serving the writ of garnishment were somewhat confusing and inapt, there was no error in refusing the entire instruction.

Another error assigned is to the refusal of an instruction requested by the defendants that in no event could plaintiff recover the 10 per cent, interest stipulated in the vendor’s lien notes for which he would have traded his stock that was garnished. This contention was discussed and decided adversely to appellants upon the former appeal, and we still concur in the views there expressed by us.

The trial court instructed the jury quite at length upon the issue whether or not Fuller and Larkin were legally defendant’s agents in the trade by which the stock was sold to Abbott, and plaintiff, Foster, was induced to sign Abbott’s notes given in consideration therefor. By the sixth, seventh,, and eighth assignments of error complaint is made of errors in those instructions. One of the objections urged to the instructions is that they are upon the weight of the evidence in assuming that Larkin was a joint agent of defendants with Fuller. We do not think the instructions are subject to this criticism. Another ground of complaint' is that no evidence was introduced tending to show the agency of Larkin. This objection was untenable, for the reason that, as noted already, we think there was some evidence tending to establish such agency. We do not wish to be understood as approving the instructions given by the court,' and last referred to, as we think they are subject to' other criticisms not presented by the assignments, and which will likely be avoided upon another trial.

For reasons stated in our opinion on the former appeal there was no error in overruling defendants’ special exception to that portion of plaintiff’s petition alleging an effort to compromise the debt for which the former suit was instituted, made before the attachment was issued, and in admitting testimony upon the last trial in support of those allegations.

In plaintiff’s petition it was alleged that the garnishment writ, as' well as the attachment, was sued out wrongfully and maliciously, and without probable cause. As noted already, actual damages were claimed which we are of the opinion were recoverable if established. Hence the exceptions to the claim for exemplary damages on the ground that no actual damages were pleaded were properly overruled. If there was error in overruling other special exceptions seeking more specific information relative to the name of the payee, payer, date of note, date of maturity, etc., such error becomes immaterial in view of another trial, since appellants are now fully informed upon those issues from the evidence introduced on the last trial.

Nor was there error in overruling different special exceptions to the claim for the value of the vendor’s lien notes, with interest, which plaintiff alleged that he would have received in exchange for his stock but for the service of the writ of garnishment, for the reasons discussed on the former appeal. See, also, Trawick v. Martin Brown Co., 79 Tex. 460, 14 S. W. 564.

Appellants insist that the logs of prospective profits in business, which appel-lee alleges resulted from the issuance and service of the writ of garnishment, could not in any event be recovered as actual damages, but could be looked to only for the purpose of estimating punitive damages if the proper predicate should be established therefor. This contention is sustained by numerous decisions of our Supreme Court. Kaufman v. Armstrong, 74 Tex. 65, 11 S. W. 1048; Kauffman v. Babcock, 67 Tex. 241, 2 S. W. 878; Miller v. Janniett, 63 Tex. 82; Wallace v. Finberg, 46 Tex. ¿5. Appellee invokes the following decisions of our Supreme Court to sustain his contention that such loss of prospective profits is recoverable as actual damages. City of San Antonio v. Royal (Sup.) 16 S. W. 1101; 6. H. & S. A. Ry. Co. v. De Groff, 102 Tex. 433, 118 S. W. 134, 21 h. R. A. (N. S.) 749; also the following decisions by the Court of Civil Appeals for the Third District: American Construction Co. v. Caswell, 141 S. W. 1013, and American Construction Co. v. Davis, 141 S. W. 1019. The case of City of San Antonio v. Royal, was one for the recovery of damages for the destruction of the business of a huckster by the removal of his trading stand. The case of Railway v. De Groff was a suit in which an injunction was sought by De Groff to restrain the railway company from obstructing the street in front of plaintiff’s hotel, which obstruction caused a depreciation in plaintiff’s hotel business, resulting from inconvenience to the customers of the hotel in reaching it. In that case our Supreme Court held that the injunction prayed for would not lie for the reason that plaintiff had a right of action at law for damages for loss of business resulting from such obstruction. Anierican Constr. Co. v. Caswell, supra, was a suit by Caswell, a merchant, to recover damages for loss of profits in his business on account of the erection of a fence and other buildings on a lot adjoining plaintiff’s store, resulting in a diversion of customers from plaintiff’s place of business, and the obstruction of light and air rendering the store hot, dark, and uncomfortable. American Constr. Co. v. Davis, supra, was a companion case to the case last noted, by Davis, also a merchant, who sued for damages of the same character. The cases relied on by appellants were suits, for damages resulting from the levy of attachment writs wrongfully issued. In the opinions relied on by the appel-lee no reference is made to the decisions first noted. Whether or not there is a conflict between these two lines of decisions it is not necessary for us to determine, for we feel it our duty to follow the rule announced in the decisions first cited as being more directly applicable to the issues in the present case. Based upon that conclusion, we are of the opinion that actual damages claimed in this suit by the appellee for loss of prospective profits in his business were not recoverable, although such loss could be proven for the purpose of assessing exemplary damages, provided a proper predicate should be established therefor.

We are of the opinion, further, that even though such profits as alleged in plaintiff’s petition were recoverable as compensatory damages, the evidence introduced upon the trial was too indefinite and uncertain to warrant such a recovery. The only evidence we havé found in the record offered for the purpose of showing such loss of profits was that of the plaintiff, Foster, himself. He' testified in part as follows: “In the year 1900 I divided up with my children, my first wife having died, and I had property that I valued at $1,800. On January 1, 1910, I was worth about $25,000, which was the income of my property from 1900 to 1910, and from which I estimate that my annual income during that time must have been at least $2,000 or $2,500 per year, and from the management of my business, my experience in the management of that business, and the capital I had, I should reasonably have made $2,000 or $2,500 during the next three years, and since the running of these garnishments on my property I have not been able to carry on my business. I had nothing left with which to carry on my business to make tbe annual earnings I bad been tbe years before. My credit was good at tbe banks, and in tbe commercial world, I could borrow money from any one wbo bad it to loan and wbo knew me without collateral. Nobody ever asked me for collateral or security. I have borrowed the limit several times from these banks here, $7,000 without security, and since tbe attachments and garnishments I bave bad to put up security for every dollar I borrowed. I bave not asked any one to credit me without security. * * * My main business has been that of a trader, buying and selling, and Mr. Bennett has lived here for a number of years, and was intimately acquainted with my business. All tbe property of mine that was reached by tbe writs of garnishment was tbe 26 shares in the oil mill. I do not know what my annual earnings were for any one year, cannot say what they were in 1900, 1901, 1902, and 1903, or any other year during the 10 years from 1900 to 1910. I don’t know exactly what trades, nor how I made it. Part of the time I was in the grocery business, part of tbe time in tbe gin business, a part of the time working on a salary for W. R. Martin Grocery Store. I know of a few trades I have made.” This witness then detailed three or four trades that he made upon which he made a profit, consisting of the purchase and sale of real estate, an electric light plant and gin, all of which property he has since sold, and further testified that he had realized a profit from the operation of the electric light plant, and also from the operation of the gin. After detailing those transactions, he continued: “I don’t know what other' trades I have made, and I couldn’t tell you without looking on the record, or something of that kind, as I have kept no account in the lást ten years.”

It is well established by all those authorities in which damages for the loss of profits in business are allowed that there must be sufficient data to enable the jury, with a reasonable degree of certainty and exactness, to ascertain the loss and that damages will not be allowed where the losses are merely speculative and conjectural and incapable of ascertainment with reasonable definiteness. See Railway v. De Groff, supra. As noted already, in the case last cited, the business which plaintiff was conducting was that of hotel keeper. In the case of City of San Antonio v. Royal, plaintiff was engaged in operating a huckster’s stand, and in each of the cases of Am. Constr. Co. v. Caswell and Am. Constr. Co. v. Davis, supra, the plaintiff was operating a store for the sale of merchandise. In each of the four cases last mentioned it appears that the business was an established business. It is doubtful whether the business of the appellee in this case, being that of a mere speculator in buying and selling real estate, stock, etc., was of that fixed and certain character which would be a proper basis for a recovery of damages even under the four last-mentioned decisions. At all events, we are of the opinion that the evidence introduced upon the trial of the present ease was insufficient to sustain appellee’s claim for damages for loss of profits in his business, even under the four last-named decisions, as there were no facts detailed by him in his testimony relative to his business transactions during the past 10 years next preceding the trial from which the jury could ascertain with reasonable certainty the amount of profits lost. From plaintiff’s own testimony only a small part of his total capital of $25,000 was tied up by the service of the writ of garnishment. He was left free to operate upon the capital not affected by the garnishment, and did operate the same. He testified that before the levy of the garnishment he could borrow money without giving security therefor, but does not give any estimate of the amount he could have so borrowed. The gravamen of his complaint seems to be that he had lost his credit with the banks to this extent, and yet, according to his testimony, he never attempted to borrow money without offering .collateral after the garnishment was served. He does not testify to what uses he would have applied any capital he might have borrowed if his former credit had not been impaired, what investments he could and would have made with such funds, nor does he give the, jury any information from which they could estimate whether or not such investments, if any, would have been profitable. As noted above, the aggregate of damages claimed for the loss of appellee’s opportunity to exchange his 26 shares of stock for the vendor’s lien notes was $1,278.26. In no event would the record in this cause support a recovery for a sum greater than that amount; and, accordingly, appellants’ first assignment of error, complaining that the trial court erred in overruling a motion for new trial on the ground that the verdict was excessive, is sustained.

For the errors indicated, the judgment is reversed, and the cause remanded for a new trial.


text:
    FT. WORTH BELT RY. CO. v. CABELL.
    (Court of Civil Appeals of Texas. Ft. Worth.
    Nov. 8, 1913.
    Rehearing Denied Dec. 13, 1913.)
    1. Negligence (§ 136) — Pkoximate Cause— .Tuey Question.
    Ordinarily, the question whether an injury should have been foreseen and was the proximate result of the negligence complained of is for the jury.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 277-353; Dec. Dig. § 136.]
    2. Negligence (§ 59) — Pkoximate Cause.
    If an injury follows an act of negligence in natural sequence, and there is no intervening agency, the wrongdoer is, as a matter of law, held to have had the result in contemplation.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. § 72; Dec. Dig. § 59.]
    3. Master and Servant (§ 285) — Injuries to Servant — Jury Question.
    In a personal injury action by a railroad brakeman, whether the employer’s negligence was the proximate cause of the injury 'held under the evidence for the jury.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1002, 1003, 1007, 1008, 1016, 1035. 10-13, 1053; Dec. Dig. § 285.]
    4. Master and Servant (§ 129) — Injuries to Servant — Proximate Cause.
    Where a railroad brakeman, upon the breaking loose of cars, attempted to catch them so as to put on the brakes, and was injured by being thrown from the cars when they struck stationary ones, the fact that he left a place of safety and exposed himself to danger, that being his duty, did not break the causal connection between the negligence of the railroad company, in furnishing insufficient couplers and defective tracks, and the injury.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 257-263; Dec. Dig. § 129.]
    5. Trial (§ 260) — Instructions—Refusal or Request Covered by Those Given.
    In a personal injury action, where the court fully charged on proximate cause, the refusal of a special request on that issue, which also defined remote cause, was not error.
    [Ed. Note. — For other cases, see Trial, Cent." Dig. §§ 651-659; Dec. Dig. § 260.]
    6. Trial (§ 84) — Actions—-Evidence—Admissibility.
    In a personal injury action by a railroad brakeman who was thrown from wild cars, which he was attempting to stop after they had broken loose from a train, where the railroad set up contributory negligence because of his failure to jump after he saw that the cars would collide with a standing car, evidence that the parallel tracks on which other cars were standing seemed closer than was usual in railroad-yards cannot be held inadmissible merely on general objection, upon the theory that it tended to show negligence not pleaded.
    [Ed. Note. — For other cases, see Trial, Gent. Dig. §§ 211-218, 220-222; Dec. Dig. § 84.]
    7. Appeal and Error (§ 1050) — Harmless Error — Admission or Evidence.
    Any error in the admission of evidence over objection was harmless, where other evidence to the same effect was received without objection.
    [Ed. Note. — For other cases, see Appeal and Error, Gent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dee. Dig. § 1050.]
    8. Master and Servant (§ 286) — Injuries' to Servant — Actions—Jury Question.
    In a personal injury action by a railroad brakeman hurt when thrown from wild cars which had come uncoupled, the question of the master’s negligence in furnishing insufficient couplers and in maintaining defective tracks, which caused the cars to break loose, held for the jury.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1001, 1006, 1008, 1010-1015, 1017-1033, 1036-1042, 1044, 1046-1050; Dec. Dig. § 286.]
    9. Master and Servant (§ 274) — Injuries to Servant — Actions—Evidence.
    In a personal injury action by a railroad brakeman, where the railroad company claimed that his failure to jump from wild cars was contributory negligence, evidence that it would have been dangerous to have jumped, under the circumstances, was admissible.
    [Ed. Note. — For other cases, see Master & Servant, Gent. Dig. §§ 939-949; Dec. Dig. § 274.]
    10. Evidence (§ 471) — Conclusions op Witness-Admissibility.
    In a personal injury action, where it was sought to show that plaintiff was a malingerer, and the court allowed a full inquiry as to a previous injury, it was proper to exclude testimony by a physician that on one occasion he noticed plaintiff go across the street on crutches, and that they were absolutely useless as far as the assistance plaintiff was getting from them, the testimony being in the nature of a conclusion of the witness.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2149-2185; Dec. Dig. § 471.]
    11. Evidence (§ 129) — Admissibility—Personal Injuries.
    In. a personal injury action, where there was nothing to show a settled system on the part of plaintiff of maintaining fictitious claims, an isolated instance of a fictitious claim for damages for personal injury is inadmissible to show that plaintiff was simulating his present injuries.
    [Ed. Note. — For other eases, see Evidence, Cent. Dig. §§ 388-393, 395-398; Dec. Dig. § 129.]
    12. Witnesses (§ 410) — Corroboration.
    In a personal injury action, where a physician who testified to examining plaintiff at the time of an injury while working for another railroad company was contradicted by plaintiff, that contradiction was not such an impeachment as to authorize the introduction of the report by the physician as corroborative evidence.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 1284; Dec. Dig. § 419.]
    13. Appeal and Error (§ 742) — Assignments op Error — Propositions.
    In a personal injury action, where plaintiff’s character had been impeached by testimony as to his poor reputation for honesty and integrity, and plaintiff testified as to why he failed to pay his debts, propositions under an assignment complaining of the admission of such testimony, which recited that in a personal injury action it is error to admit plaintiff’s testimony to the effect that he was poverty-stricken, and that the introduction of immaterial and irrelevant testimony does not justify the admission, over the objection of defendant, of improper testimony to explain it, do not require consideration; being too general, and not pointing out any specific error.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    14. Witnesses (§ 358) —> Examination — Cross-Examination.
    Where impeaching witnesses are offered, to attack the reputation of one of the parties, the party assailed is entitled, on cross-examination, to compel the witness to state the source of the reports upon which he bases his testimony.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1159, 1160; Dec. Dig. § 358.*]
    15. Witnesses (§ 361) — Impeachment—Corroboration.
    Where impeaching testimony is offered evidence which will satisfactorily explain it is admissible, and hence, in a personal injury action, where plaintiff’s character was impeached by evidence as to his bad reputation for integrity and truth, owing to his failure to pay his debts, plaintiff was entitled to testify as to the reasons for his failure; especially where some of his reasons were elicited without objection upon the examination of other witnesses.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1167-1175; Dec. Dig. § 361.]
    16. Appeal and Eeeor (§ 719*) — ASSIGNMENTS of Eeeor— Necessity.
    In a personal injury action, where there was no assignment- of error that the verdict, as reduced by the trial court, was excessive, a judgment for plaintiff will not be disturbed because of improper argument of counsel, which went to the amount of recovery only.
    [Ed. Note. — For other cases, see Appeal and-Error, Cent. Dig. §§ 2968-2982, 3490; Dec. Dig. § 719.]
    Appeal from District Court, Tarrant County; R. H. Buck, Judge.
    Action by G. S. Cabell against the Ft. Worth Belt Railway Company. From.a judgment for plaintiff, defendant appeals.
    Affirmed.
    Stephens & Miller, of Ft. Worth, for appellant. Oarlock & Oarlock, of Ft. Worth, for appellee.

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

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

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

   CONNER, C. J.

Appellee instituted this suit to recover damages for personal injuries, and secured a verdict and judgment for ?5,000, which upon a hearing of the motion for a new trial was reduced by remit-titur to 83,000.

Every step in the proceeding seems to have been skillfully and vigorously contested in behalf of appellant, but, after a careful consideration of the record, we have failed to find an error for which we think the judgment must be reversed.

As alleged and supported by testimony, ap-pellee’s injuries were received under substantially the following circumstances; Appellee at the time was in the employment of the appellant railway company as a switchman. On the day of the accident, a switch engine coupled to a string of some eight standing cars with the purpose of coupling thereto a standing car some 25 car lengths south of the cars first mentioned. Appellee, in the performance of his duty, first released the air on the cars attached to the engine, and immediately and rapidly walked in the direction of the single car to which the train was to .be coupled, with the purpose of opening the “knuckle” in order to make the coupling. When within about 30 or 35 feet from the car at the south end of the yards, another switchman, Du Poyster, gave appellee a signal indicating that the cars had broken apart. Appellee, as it was his duty to ■do, immediately started in a run back to the uncoupled cars which had been attached to the engine, for the purpose of setting the brakes to keep them from doing damage by hitting the stationary car, or by going over a “derail” situated at the south end of the track. Appellee caught the first of the approaching cars while going at a speed, as he testified, of some 12 or 15 miles an hour, with the intention of ascending to the top and fastening the brakes. This car was provided with' a “stirrup” extending below the bottom of the ear above which was fastened a hand hold. The ladder provided for ascension was on the, front instead of on the side, and appellee, after having gotten upon the stirrup with his left foot and with his left hand holding to the support above, threw his right hand around the corner of the car, intending to ascend the end ladder, when, as he testifies, he saw that he was so near the standing car that he did not have time to make the ascension; that it was dangerous to jump off the car upon which he was standing because of the proximity of some standing cars on a parallel track, and it was likewise dangerous for him to place himself upon the end ladder and remain there during the impending collision ; that he, therefore, remained in the position stated, to wit, with his left foot in the stirrup, with his left hand on the support above, with his right hand on one of the rounds of the end ladder, and his right foot on an extending uncoupling rod; that, while in the position stated, the string of cars upon which he was situated violently collided with the standing car; that thereby his hold was broken and he was hurled forward, but managed to catch upon the standing ear which he later ascended and where he was afterwards found with injuries to which he testified. As accounting for the fact that the string of ears broke loose from the switch engine, and as grounds of negligence charged to be the proximate cause of appellee’s injuries, it was alleged that the string of cars to which the switch engine had been first attached were provided with automatic couplers, and that the track upon which the movements were made was in bad repair, there being low joints in the track which had a tendency to so disarrange the couplers as to allow them to part, and the defendant company was charged with negligence in maintaining both defective couplers and a defective condition of the track whereon the cars were being handled at the time.

In several forms, it is earnestly insisted that if it be admitted, as there was evidence tending to show, that the appellant railway company was guilty of negligence in either providing defective couplers or in maintaining a defective track, yet such acts of negligence cannot be held to be the proximate cause of appellee’s injuries, for the reason that such injuries were not such as, in the light of the attending circumstances, ought to have been foreseen as a natural and probable consequence of such act of omission; numerous authorities being cited in support of this contention. The doctrine of “proximate cause” has been so frequently discussed, and is so well understood that we cannot hope to add to what has from time to time been clearly stated on the subject in the decisions. There can be no doubt of the general proposition that it is ordinarily an issue for the jury to determine whether, in any given case, an injury similar in character to that under investigation ought to have been foreseen as a result of an act of negligence established by the evidence. If the injury follows the act of negligence in natural sequence, and there is no independent, intervening cause, and the injury would not have occurred but for the act or acts of negligence shown, it, meets the requirements of the law. Under such circumstances, the wrongdoer, as a matter of law, is held to have had the result in contemplation. The court gave an approved definition of the term “proximate cause,” and we think it was for the jury in this case to say whether the acts of negligence shown caused or proximately contributed to cause appellee’s injuries, and whether such injuries, or some like injuries, under the attending circumstances, ought to have been foreseen. The jury’s verdict on this issue was in appel-lee’s favor, and under the evidence we do not thipk the verdict' can be disturbed.

It is true appellee was in a place of safety when he was informed of the uncoupling of the cars, but his act in thereupon attempting to ascend the approaching train was in the performance of his duty to appellant as a switchman and can in no legal sense be regarded as an independent cause which brought about appellee’s injuries in the sense that it broke the causal connection between the negligence charged and the injuries received.

Nor do we think the court committed error in refusing appellant’s special charges 2, 3, and 4, on the subject of proximate cause, which in our judgment would have had a tendency to confuse rather than to enlighten the jury. For instance special charge No. 2 is as follows: “Even though you find and believe from the evidence that the track belonging to the defendant was [and] in use by it at the time of the occurrence of the things complained of by plaintiff in his petition herein was in defective condition by reason of low joints therein, and that by reason of such defective condition of said track the defendant was guilty of negligence, yet you cannot find for the plaintiff on that ground unless you believe and find from the evidence that such negligence was the proximate cause and not the remote cause of the injury of which plaintiff complains. In the law of negligence, a remote cause of an injury is one which does not by itself alone produce the given result, but which sets in motion another cause, called the proximate cause, which immediately brings about the given effect, or; otherwise defined, it is that which may have happened and yet no injury have occurred, notwithstanding that no injury could have occurred if it had not happened.”

The issue presented in the first paragraph of this special charge was submitted in the court’s general charge under an approved definition of proximate cause which, intelligently considered, as we must presume was done, needed no illumination in the way of a definition of an opposite — a “remote cause”— which at most could only be indirectly relevant.

It is urged in the sixth and seventh assignments of error that the court erred in permitting appellee, as also the witness C. P. Garey, to testify, in substance, that the parallel tracks hereinbefore mentioned “seemed closer together than tracks in railroad yards ordinarily are.” On the trial appellant pleaded contributory negligence on appellee’s part because of his failure, among other things, to jump off of the car upon which he attempted to ascend after he saw that it was about to collide with another, and it seems clear that, as relevant to this issue, appellee was • authorized to show the distance between the parallel tracks, the distance the standing cars extended over the track, and, as he did by expert testimony, that it was hazardous to jump off of the running car in such close proximity to the cars standing on the parallel tracks. So that we could in no event sustain the single proposition under the assignments named, which is that the testimony “was immaterial and inadmissible, and the admission of such evidence constitutes reversible error.”

Could it be said, however, that the general objections that the “evidence was immaterial and inadmissible” were sufficiently broad to admit the contention that it tended to establish an issue of negligence not alleged, or that in no event could be a proximate cause of the injuries received, then we think the objections are answered by the fact that other evidence, of substantially the same effect, on the part of the witness W. N. Turney was offered and received without objection, this witness testifying that: “Those tracks (the parallel tracks to which the testimony objected to relates) are too close together and have always been, while I was working there.” Moreover, it would seem that the unusual proximity of the tracks was part of the very situation in which appelleewas placed at the time it is insisted he should have jumped from the moving train,, and, perhaps, tended to explain why he failed to do as he otherwise might safely have done had the tracks been placed their-usual distances apart.

By objection to the testimony, and by the presentation of a special charge to the-refusal of which error is assigned, appellant presented the contention that there was no-evidence of a defect in the coupling of the cars. It is true that the witness’who coupled. the parting ears testified that lie looked at the couplings to see if there was any defect, and that he found none, but there was expert testimony, that we think competent, offered in behalf of appellee, to the effect that, with ordinary handling, cars will not part as those under consideration did unless there were defects in the track or in the couplings. It was also shown, as before stated, that there were low joints in the track, and that the particular cut of cars that were being switched broke apart at three different places before they were switched off of the main line track upon which the operation began, and we think it was for the jury to' say whether, if low joints in the track were permissible, the couplers, in the exercise of due care, should have been made to extend perpendicularly such distance, or otherwise arranged so as to preclude a parting because of low joints in the track. At least the evidence seems to render it certain that the uncoupling was brought about because of a defect in either the track or the couplings, and whether one or the other would seem to be immaterial, if, as a proximate result, appellee was injured,

The testimony of the Witnesses named in the fifteenth to the twenty-first assignments of error, inclusive, to the effect that it would have been dangerous for appellee, under the circumstances, to have attempted either to jump off of the moving car upon which he was stationed, or to have ascended on the end ladder, was relevant to the issue of contributory negligence, and the court, therefore, committed no error in admitting this testimony.

Nor do we think the court committed any error of which appellant can complain relating to its plea that appellee was a malingerer. Appellant was permitted, in support of this plea, to go rather fully into an accident and claim of injury on appellee’s part during the previous year on the T. & B. Y. Railway, and the mere exclusion, regardless of the sufficiency of the objection thereto, of the statement by Dr. M. L. Lang-ford that on one occasion he noticed the plaintiff go across the street, and “noticed that, in walking with his crutches, his crutches were absolutely useless as far as the assistance plaintiff was getting from them,” etc., will not authorize us we think to reverse the judgment. The answer offered partakes of the nature of a conclusion of the witness, and, as we view the record, it is not clear that the entire issue was not irrelevant.

No connection whatever between the accidents was shown, nor was there evidence offered tending to show a settled course of action or system on appellee’s part in the maintenance of fictitious claims, and nothing seems better settled than that, under such circumstances, an isolated transaction of the kind is inadmissible as proof that on the occasion at issue appellee was simulating his injuries.

There is yet another reason for overruling appellant’s claim of error in the court’s rejection of the written report of an examination of appellee at the time of his injuries on the T. & B. Y. Railway. Dr. A. P. Howard was permitted to testify, as a witness, that on the occasion he referred to he examined appellee and* failed to find any evidence of injury, and the mere fact that appellee on the trial denied that Dr. A. P. Howard made any such examination was not such an impeachment of the witness as authorized in his corroboration the introduction of the report made by him at the time. See McKensie v. Watson, 36 Tex. Civ. App. 235, 81 S. W. 1017; Hardin v. F. W. & D. C. Ry. Co., 49 Tex. Civ. App. 184, 108 S. W. 490; Taliaferro v. Goudelock, 82 Tex. 521, 17 S. W. 792.

Under appellant’s twenty-fourth assignment of error, objection is urged to the action of the court in permitting appellee to give the following testimony: “Excluding one debt of $90 which is in doubt, the question of whether I owe it, I owe about $115. I am indebted to Dr. Langford and have been off and. on since my child was born; I owe Jackson & Tatum $6. I owe Wilson Bros. $17 or $18, I am not positive. I owe Mr. Ira Wood $2, and I owe Hillman Bros. $8. I may owe $15 or $20 around the place there, and this W. B. Summers debt. When I opened up business down there I bought $121. The Summers debt was for furniture, and I paid on that up to the time of the fire, and have the bills to show it, and the reason why I have not met those' obligations is that my wife has been constantly sick and in awful bad shape for the last two years and a half. Well, I have been crippled for seven months —this accident, and in that fire, in February last, I lost over $790, and this past February I was out of employment for two months after the fire, and I only worked four days in May when received this injury, and since then I have been unable to earn any money whatever or do anything.”

It appears that appellant had offered a number of witnesses who testified to the effect that appellee’s general reputation for truth and veracity and for honesty and integrity was bad in the town of Mart, where he formerly lived, and one of them, at least, on cross-examination by appellee, gave names of persons whom he had heard so state, and testified that appellee was indebted to him and, as reported, to some or all of the other persons, and that: “I think his (appellee’s) reputation is bad because he won’t pay his debts, and I think that any man that don’t pay his honest debts is a bad man.” It seems that appellee’s testimony quoted above was admitted in explanation of such impeaching testimony, and the only objections thereto that we are called upon to consider by the propositions submitted under the assignment named are: First: “In a suit for damages for personal injuries, it is error to admit plaintiff’s testimony, to the effect that he is poverty-stricken and has been unfortunate in life.” Second: “The introduction of immaterial and irrelevant testimony by the plaintiff does not justify the admission over objection by the defendant of improper testimony to explain it.” The proposition first quoted points out no specific isrror and is evidently too general to require consideration. The second proposition is almost if not quite as general as the first in that it entirely fails to give any specific reason why the quoted testimony is “improper.”

It cannot be said that the testimony developed by appellee on cross-examination of appellant’s impeaching witnesses was either immaterial or irrelevant. Oftentimes nothing short of a cross-examination which compels an impeaching witness to state both the source of the reports to which he testifies and their nature will enable a party either to test the correctness of the impeaching evidence or to protect the person assailed, and it has uniformly been held that such cross-examination is permissible.

Nor can it be said that under no circumstances is evidence explanatory of impeaching testimony authorized. On the contrary, under circumstances and with limitations not necessary to here notice, such evidence is often both material and relevant. See St. L. & S. W. Ry. Co. of Tex. v. Bryson, 41 Tex. Civ. App. 245, 91 S. W. 829; Roberts v. Commonwealth, 94 Ky. 499, 22 S. W. 845; 2 Wigmore on Evidence, § 112; Annis v. People, 13 Mich. 517. So that we feel unable to sustain as made the objections to appellee’s testimony now under consideration. Moreover, 'other testimony of like general import was admitted, without objection on appellant’s part. That appellee’s wife was an invalid was testified to by Dr. Lang-ford without objection and the wife, herself, also appeared as a witness and testified to her condition. Evidence was admitted without objection that the plaintiff’s business was burned up in February, 1912, and that he had been out of employment up until a little while before he got hurt, thus raising an inference of an inability to pay his debts and hence of an origin for his ill repute that was without moral turpitude. In view of all which, we think the twenty-fourth assignment of error must be overruled.

The only remaining assignments relate to certain arguments on the part of appellee’s counsel in his closing address to the jury, and to an alleged excessiveness in the verdict and judgment. As to these assignments, we think it sufficient to say that, in the case of at least two of the arguments, the court in answer to appellant’s objection expressly instructed the jury to disregard them. The remaining argument, as to which the jury were not so instructed, as indeed all of the arguments, went not to the issue of liability, but to the amount of the recovery only and, inasmuch as no assignment raises the question of an excess in'the verdict and judgment after the action of the court in requiring a remittitur, we think the assignments relating to the argument as well as that alleging an excess in the verdict should at all events be now overruled.

We conclude by stating, as before, that a careful examination of the record discloses no error for which we think the judgment should be reversed, and, believing that the evidence supports the material issues alleged and submitted, it is ordered that the judgment be affirmed.


author: RASBURY, J.

text:
    TEXAS MIDLAND R. R. v. NELSON.
    (Court of Civil Appeals of Texas. Dallas.
    Dec. 6, 1913.
    Rehearing Denied Jan. 3, 1914.)
    1. Evidence (§ 117) — Relevancy—Showing by Other Evidence.
    In an action for the value of a horse, wagon, and harness in a collision at a crossing where, though a witness testified that some six or seven years before the accident the driver was addicted to drink and when drinking was in a stupor and unconscious of what he was doing, there was no evidence that he was intoxicated at the time of the accident or that he was addicted to drink within a reasonable time prior to the accident, and the witness who found a bottle of whisky among the débris of the wagon was two blocks from the accident when it happened, evidence as to the finding of such bottle was properly excluded.
    [Ed. Note. — For other eases, see Evidence, Cent. Dig. § 136; Dec. Dig. § 117.]
    2. Trial (§ 191) — Instructions—Pkovince of Juey.
    In an action for injuries to property sustained in a crossing accident, an instruction that if some one warned the driver of the approaching train, and if he heard the warning and could have stopped in time to have prevented the accident but failed to do so, to find for defendant was properly refused even if Otherwise proper, since it made the failure to heed such warning negligence per se, while it would not constitute negligence unless an ordinarily prudent person under all the facts and circumstances would have observed it.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 307, 308; Dec. Dig. § 191.]
    3. RailROads (§ 351) — Crossing Accidents —Actions—Instructions.
    In an action for injury to property in a crossing accident, an instruction that if the engineer believed that plaintiff’s driver saw the approaching train and believed that he would stop, and if when he attempted to cross the engineer did all he could to prevent the injury, to find for defendant was properly refused where there was evidence that the driver’s view of the crossing was obstructed by defendant’s ears on a siding, since it permitted the jury to find for defendant, even though the driver went upon the track as the result of defendant’s negligence.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1193-1211, 1213-1215; Dec. Dig. § 351.]
    Appeal from Kaufman County Court; James A. Cooley, Judge.
    Action by J. R. Nelson against the Texas Midland Railroad. Judgment for plaintiff, and defendant appeals.
    .Affirmed.
    H. C. Coke and S. W. Marshall, both of Dallas, and Dashiell, Crumbaugh & Coon, of Terrell, for appellant. Ed. R. Bumpass, of Terrell, for appellee.

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

   RASBURY, J.

The appellee sued appellant in the court below for $200, alleged to be the value of a horse, wagon, and harness destroyed by appellant in a collision in the town of Terrell at the intersection of appellant’s road and Moore avenue, a public highway, between appellant’s train and appellee’s wagon while being driven by John Wiggins. The grounds of negligence alleged by appel-lee, the defenses urged by appellant, and the evidence adduced upon trial- of the case are substantially identical with those set out in our opinion delivered November 29, 1913, in the case of Texas Blidland Railroad v. John Wiggins, 161 S. W. 445, not yet officially reported, which are adopted as a part of this opinion, except where departed from. Wiggins was appellee’s driver, and the opinion referred to disposes of an appeal taken by appellant in this ease from a judgment for Wiggins for damages for injuries sustained by Wiggins in said collision, which at the same time destroyed the property herein sued for. Upon trial of this ease appellee recovered verdict for $150.

The issues raised on this appeal by appellant under authority of its first, second, third, fourth, fifth, seventh, and eighth assignments of error are decided adversely to appellant in the Wiggins Case, and for that reason we will not discuss them here.

On the trial of the Wiggins Case appellant offered to prove by its witness Clark the presence of a bottle containing whisky in the wagon driven by Wiggins in substantiation of the allegation that Wiggins was drunk on the morning of the accident and appeared drowsy and careless on approaching the crossing where the collision occurred. There we held that no proof having been offered that Wiggins was intoxicated at the time of the accident, and the witness who found the bottle being two blocks from the accident, and the bottle being found among the debris of the wagon after it was demolished, the proof was too remote. On the trial of this case the same witness was offered, the jury withdrawn, and the witness examined, who testified, as he did on the trial of the Wiggins Case, of finding the bottle containing whisky, and then testified that Wiggins was once in his employ for a period of a year, during which time he was a whisky “fiend” or “worm,” and when drinking was in a stupor and in substance unconscious of what he was doing. On cross-examination witness' said it had been six or seven years since he employed Wiggins, since which time he had seen him daily, with occasional lapses, but had never seen him intoxicated during said period of years, nor had he seen him in the stupid condition described by witness, nor did witness see him drinking prior to or at the time of accident. The court declined to permit the witness to testify as above indicated to the jury. The court’s action is assigned as error. We are of opinion that the facts above detailed do not in any respect cure the objection found by us on trial of the Wiggins Case. It is clear that in the absence of other facts or circumstances having some reasonable proximity to the time of the accident, indicating the drink habit on the part of Wiggins, and in the absence of any definite fact or circumstance tending to prove drunkenness on the day of the accident, evidence that six or seven years ago he was addicted to drink would also be speculative and remote, and hence inadmissible in support of the allegation of drunkenness, and insufficient to support a charge upon such issue.

The court did not err in refusing to instruct the jury as requested by appellant that if some one warned Wiggins of the approaching train by halloaing to him and he heard the warning and could have stopped his horse in time to have prevented the accident, but failed to do so, to then find for appellant. Assuming the facts raised the issue covered by this charge, and conceding the right of appellant to have the facts constituting its defense grouped, yet an analysis of the charge discloses that the failure to heed the warning is made negligence per se, while the correct rule is that Wiggins should have observed the warning, if the jury believed that an ordinarily prudent person under all the facts and circumstances would have done so.

The tenth and eleventh assignments of error complain in substance of the refusal of the court to instruct the jury that if appellant’s engineer believed that Wiggins saw the approaching train and believed that he would stop and not attempt to cross the track, and that when he did attempt to cross the engineer did all he could do to prevent the injury, to then find for appellant. Without attempting a discussion at length of this issue, we are of opinion that it is sufficient to say that the charge should not have been given. It ignored and withdrew from the jury a consideration of the duties imposed by law upon appellant under the issues made by appellee. It permitted the jury to find for the appellant, even though Wiggins got upon the track as the result of the negligence of appellant. The evidence sustained the finding of the jury that Wiggins was placed in a position of danger because his view of the crossing was obstructed by appellant’s cars on a siding. Whether this was true or not, it was in evidence before the jury, and if the jury believed it, as the verdict indicates, the effect of the charge would have been to tell the jury that, even though he was in a position of danger brought about by the negli-genee of appellant, nevertheless appellant would not be liable if its engineer believed be was not in a position of danger or did all be could to prevent tbe accident when Wiggins’ danger was apparent and when it was too late for Wiggins to avoid tbe collision.

Tbe judgment is affirmed.


author: MOURSUND, J.

text:
    SOUTHWESTERN LAND CORPORATION v. NEESE.
    (Court of Civil Appeals of Texas. San Antonio.
    Dec. 10, 1913.)
    1. Justices of the Peace (§ 147)—Appeal-Decisions Reviewable.
    Under Rev. Civ. St. 1911, art. 2393, requiring appeals from justice’s court to be perfected within 10 days from the date of tbe judgment, and article 747, providing that a writ of certiorari to review a judgment of a justice of tbe peace shall not be granted more than 90 days after the date of the judgment, no appeal could be taken from an order refusing to enter nunc pro tunc an- order setting aside a judgment granted more than two years before, and granting a new trial, since tbe statute does not permit the county court to entertain an appeal for the sole purpose of deciding whether such order should have been entered nunc pro tunc, and, if the appeal brought up the entire case, the application, however unfounded, and whensoever made, would have the effect of a motion for a new trial filed within tbe time prescribed by statute.
    [Ed. Note.—Eor other cases, see Justices of the Peace, Cent. Dig. §§ 493-501; Dec. Dig. § 147.]
    2. Justices of the Peace (§ 148)—Appeal-Decisions Reviewable.
    When a judgment nunc pro tunc is entered by a justice of the peace, it becomes the final judgment of the court, and an appeal may be taken therefrom, and a revision of the entire proceedings had.
    [Ed. Note.—Eor other cases, see Justices of the Peace, Cent. Dig. § 502; Dec. Dig. § 148.]
    3. Justices of the Peace (§ 162)—Appeal-Effect. .
    . An appeal from a judgment of the justice s, court annuls the judgment.
    [Ed. Note.—Eor other cases, see Justices of the Peace, Cent. Dig. §§ 600, 603, 605; Dec. Dig. § 162.]
    Appeal from Bexar County Court; John H. Clark, Judge.
    Action by C. L. Neese against the Southwestern Land Corporation. Prom a judgment of the county court dismissing an appeal from justice’s court, defendant appeals.
    Affirmed.
    Searcy & Browne, of San Antonio, for ap pellant.

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

   MOURSUND, J.

On November 15, 1910, C. L. Neese recovered, a judgment by default in the justice’s court against the Southwestern Land Corporation for $135, although there was an answer on file. On December 16, 1912, the defendant filed a motion alleging that the justice of the peace who had rendered the judgment, but was no longer in office, had, during the term at which the judg'ment was rendered, set the same aside, and-granted a new trial, but such order had not been entered, wherefore defendant prayed that the same be entered nunc pro tunc as of date November 16, 1910. This motion was, on December 28, 1912, denied by the then justice of the peace after hearing evidence, to which ruling defendant excepted, and gave notice of appeal to the county court for civil cases. Appeal bond was filed December 30, 1912. The county court for civil eases dismissed the appeal for want of jurisdiction, whereupon an appeal to this court, was duly perfected.

There is only one question to be determined upon this appeal, and that is whether the county court erred in dismissing the-appeal from the justice’s court for want of jurisdiction. The appeal to the county court is from an order entered two years later than the judgment, by which order the justice’s-court refused to enter nunc pro tunc an order setting the judgment aside. When a judgment nunc pro tunc is entered, it becomes the final judgment of the court, and-an appeal may be taken therefrom, and a revision of the entire proceedings had. But this was not an appeal from a judgment entered nunc pro tunc, but from an order refusing to enter nunc pro tunc an order setting aside a final judgment. Our statutes-provide two methods of securing appellate revision of a justice’s court judgment; one is by certiorari, the other by an appeal. In this case no appeal was perfected within the-time prescribed by article 2393, Revised Statutes 1911, nor was any writ of certiorari procured within the time prescribed by article ■747.

When the county court acquires appellate jurisdiction, the trial in such case is de-novo. Article 1950, Revised Statutes 1911. An appeal from a judgment of the justice’s-court annuls the judgment. Jordan v. Moore, 65 Tex. 363; Railway Co. v. Mosty, 8 Tex. Civ. App. 330, 27 S. W. 1057; Harter v. Curry, 101 Tex. 187, 105 S. W. 988.

In this case the judgment itself was not appealed from in either of the methods-prescribed by statute. If an appeal from an order refusing to enter nunc pro tune an order setting aside a judgment carries to the county court the entire case, then an application for such an order, however unfounded, would have all the effect of a motion for new trial filed within the time prescribed by statute, and overruled during the-term, although such application was filed long after the term of court expired. On the other hand, our statute does not permit the county court to entertain an appeal for the sole purpose of deciding whether an order should have been entered nunc pro tunc setting aside a final judgment of the justice’s court. The county court cannot enter the order, nor can it, as an appellate court, order the justice’s court to enter the same. It is clear that the county court did not acquire jurisdiction of the case,' and that the court was correct in dismissing the attempted appeal.

We have omitted to state any of the facts bearing upon the merits of the controversy whether the justice of the peace should have entered the order nunc pro tunc, because the only question for us to determine was whether the county court acquired jurisdiction by the attempted appeal.

The judgment is affirmed..


author: CARL, J.

text:
    BALCH et al. v. SAN ANTONIO, F. & N. R. CO.
    (Court of Civil Appeals of Texas. San Antonio.
    Dec. 20, 1913.)
    Eminent Domain (§ 172) — JURISDICTION of Courts — County Court.
    A county court has jurisdiction in matters of eminent domain, such jurisdiction not being taken away by Acts 32d Leg. c. 24, diminishing the jurisdiction of the county court of Kendall county.
    [Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 470-472; Dec. Dig. § 172.]
    Error to Kendall County Court; J. W. Lauhon, Judge.
    Action by the San Antonio, Fredericksburg & Northern Railroad Company against Alice Balch and another. Judgment dismissing the proceeding. Defendants bring error.
    Reversed and remanded.
    Kampmann & Burney, of San Antonio, for plaintiffs in error.

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

   CARL, J.

This suit was instituted in the county court of Kendall county by the San Antonio, Fredericksburg & Northern Railroad Company, defendants in error, against Alice Balch and E. J. Beall, plaintiffs in error, to condemn a strip of land for right of way for the railway company over the land of plaintiffs in error in that county. Commissioners were appointed as provided by law and made their award, to which award objections were filed by plaintiffs in error. The court thereupon dismissed said cause, upon the ground that the Thirty-Second Legislature of Texas (General Laws 1911, page 30), had diminished the jurisdiction of the county court of Kendall county so as to deprive it of the power to act in matters of this kind. The judgment of dismissal of said cause has been brought to this court, by plaintiffs in error for review, and is assigned as error.

The Supreme Court of this state has directly passed upon this question in the case of Southern Kansas Ry. Co. of Texas v. Vance, 104 Tex. 90, 133 S. W. 1043, in which it is held that, while the general civil and criminal jurisdiction of the county court may be diminished or taken away, it still retains its powers and jurisdiction in matters of eminent domain. This being true, it becomes our duty to reverse the judgment of the lower court dismissing this case, and to remand the cause for trial, which is accordingly done.

Reversed and remanded.


author: PLEASANTS, C. J.

text:
    WESTERN UNION TELEGRAPH CO. v. KERSTEN.
    (Court of Civil Appeals of Texas. Galveston.
    Dec. 22, 1913.)
    On motion for rehearing.
    Motion overruled.
    For former opinion, see 161 S. W. 369.
   PLEASANTS, C. J.

In an able motion for rehearing filed by counsel for appellee, it is very earnestly insisted that this court erred in the opinion heretofore filed herein in holding that the charge given the jury by the trial court was erroneous in the respects stated in said opinion.

We adhere to our conclusion that the charge was incorrect; but we agree with counsel that the errors in the charge pointed out in said opinion are not such, in view of the evidence in the case, as would require a reversal of the judgment. We reversed the judgment because we concluded that the evidence failed to show that appellee could have been present at his brother’s funeral if the telegram had been promptly delivered, and the errors in the charge were only pointed out for the purpose of preventing their repetition upon another trial.

The motion for rehearing is overruled.