author: PLEASANTS, C. J.

text:
    HOUSTON BELT & TERMINAL RY. CO. v. MONTELLO.
    (Court of Civil Appeals of Texas. Galveston.
    March 11, 1914.)
    1. Trial (§ 191) — Instructions Assuming Pacts — Questions for Jury.
    In a railroad employé’s action for injuries, in which the petition alleged that, while plaintiff and other employés were loading rails on a flat car, the foreman so hurried such employés, and so negligently directed the work, as to cause several of the employés to let a rail fall in great haste, and with great violence,. in a careless manner, injuring plaintiff,' an instruction to find for plaintiff, if he was injured as alleged, was erroneous, since whether the act of the foreman in hurrying the employés, or the ■ act of the employés in dropping the rail, was negligence, and whether such negligence was the proximate cause of the injury, should have been submitted to the jury; the evidence tending to show that plaintiff’s coemployés dropped their end of a rail, causing the end which plaintiff was assisting in carrying to drop and strike his leg.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 420-131, 435; Dec. Dig. § 191.]
    2. Damages (§ 210) — Actions for Injuries —Instructions.
    In an employé’s action for injuries, where the evidence as to the character and extent of his injuries was conflicting, it was error to charge that, if the jury found for plaintiff, they should allow such sum as they believed from the evidence would compensate him “for the injuries complained of,” as he could recover for only such injuries as the evidence showed.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 537, 538; Dec. Dig. § 210.]
    3. Trial (§ 191) — Instructions — Province of Jury.
    In an employé’s action for injuries, an instruction that, if the foreman directing the work of loading rails on a flat car unduly hurried the men carrying a rail, plaintiff would be entitled to recover, if he did not bring on the injury by his own act or neglect, was erroneous, as whether the act of the foreman was negligence 'should have been submitted to the jury.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 420-431, 435; Dec. Dig. § 191.]
    Appeal from Harris County Court; A. R. Hamblen, Special Judge.
    Action by John Montello against the Houston Belt & Terminal Railway Company. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    Andrews, Ball & Streetman, of Houston, for appellant. Gibson & Wander, of Houston, for appellee.

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

   PLEASANTS, C. J.

This suit was brought by appellee against the appellant to recover damages in the sum of $1,000 for personal injuries alleged to have been' sustained by him as a result of the negligence of appellant. The cause of action, as alleged by plaintiff, is as follows:

“Plaintiff alleges that on or about the 24th day of July, 1912, he was working in an extra gang, laying and carrying rails for said company, at a point on said road near Houston, Harris county, Tex., from a place near the railroad track, to a flat car of defendant, upon its track, for conveyance elsewhere; that, while so at work for said defendant, he received an injury through the carelessness and negligence of said defendant, its agents and employés, by being struck with a heavy iron rail across his left leg, below his knee, with such violence, and in such manner, as to be made quite sick, and to permanently injure and impair him in the úse of said leg, and to cause him to suffer great physical pain and mental anguish from thence until now.
“Plaintiff further shows that the injury received, as aforesaid, was the direct and proximate result of the carelessness and negligence of said defendant and its foreman, agent, and employes, in this: Plaintiff was one among others engaged to lift and carry certain heavy iron or metal rails from the ground that was situated on the right of way, to load upon a flat car on said track for said defendant railway company, and that, while plaintiff was so at work for said defendant, a certain foreman of defendant, directing him and other workmen of defendant engaged in the same kind of work in loading said hand car with said heavy rails, did so hurry and rush said servants and employés, and did so carelessly and negligently direct the work, as to cause several of said servants to throw down or let fall in great haste, and with great violence, and in careless manner, a heavy iron rail to the ground near where he (plaintiff) was at work, and which did fall upon his leg as aforesaid.
“Plaintiff would show: That, at the point where plaintiff was at work, the surface of the ground was uneven, and the ground was obstructed with loose iron rails, ties, and timbers lying between tbe point from wMcb plaintiff and other helpers were required to get them, and carry each rail to the railroad track where the rails were being loaded on the flat car. That said rails were so heavy, and the surface of the ground so obstructed, that it required great care and caution in moving over the ground while carrying such heavy weight. That defendant furnished four men to carry each rail, and the rails were much too heavy for the four men to carry safely. That conveying •one of these rails the defendant’s foreman recklessly and carelessly hurried plaintiff and his co-workers so that, straining under the great weight, one of them stumbled against an obstruction and let fall the weight, so that the hold of all the others, together with plaintiff’s, was broken, and the rail fell to the ground, crushing plaintiff’s left leg thereunder, and inflicting the wound above described. That plaintiff was using all diligence and care for his safety, and that the injury was not contributed to by any act of his, but was directly caused by defendant’s negligence as heretofore stated.”

The defendant answered by general demurrer, general denial, and special plea, denying that it or its agents and servants •carelessly or negligently directed the work referred to in plaintiff’s petition in such manner as to cause any injury to plaintiff, and that there were any obstructions in the way of the ' work as to interfere with it, or which did interfere with the plaintiff, or cause the plaintiff any injuries; and by further special pleas setting up the defenses of inevitable accident, assumed risk, and •contributory negligence.

The trial in the court below, with a jury, •resulted in a verdict and judgment in favor •of plaintiff for the sum of $950.

Upon the issue as to how plaintiff’s injuries were caused, the testimony was conflicting.

There is evidence tending to sustain plaintiff’s claim that, while engaged with other employes of defendant in carrying a heavy rail for the purpose of loading it on a car, his eo-workérs, who were unduly rushed and hurried hy the foreman in charge of the work, let the end of the rail carried by them fall, and this caused the end which plaintiff was assisting to carry to drop down and strike plaintiff’s leg and injure him as alleged in his petition. There is also evidence to sustain the contention of ■defendant that plaintiff was injured by his • own negligence in running or walking against a rail which was being carried by ■ other employes of defendant, without the assistance of plaintiff, and in so doing ■ struck his leg against the rail and thereby received his injuries.

This being the state of the evidence, the trial court gave the jury the follpwing • charge: “You are charged that, if you believe . by preponderance of the evidence plaintiff was injured in the manner and under the circumstances alleged, if from the evidence you believe he was injured, then you are instructed to return your verdict for plaintiff, against defendant, for such a sum as you believe from the evidence will compensate plaintiff for the injuries complained of, not to exceed $950.”

The first assignment of error complains of this charge on the ground that it instructs the jury to return a verdict for the plaintiff, if they find from the evidence that plaintiff was injured in the manner and under the circumstances alleged, thereby assuming that, if the facts alleged as to circumstances pnder which plaintiff’s injuries were caused were true, such facts? as a matter of law, established negligence on the part of defendant, and plaintiff’s injuries were the proximate result of such negligence.

The charge is further assailed because it authorizes the jury to compensate plaintiff for the injuries complained of, regardless of whether such injuries were established by the evidence.

We think these objections to the charge are valid. It certainly cannot be held, as a matter of law, that defendant was guilty of negligence, if the facts as to the manner and circumstances in which plaintiff was injured were as alleged in his petition. The jury might have found that the act of the foreman in hurrying and rushing plaintiff’s co-workers in their work, or the act of said co-workers in dropping the end of the rail carried by them, was under the circumstances negligence, and that such negligence was the proximate cause of the plaintiff’s injuries; but they should not have been instructed that they must so find. The acts alleged did not constitute negligence per se, and, even if they could be so held, such negligence was not, as a matter of law, the proximate cause of the injury, because it cannot be said 'that reasonable minds could not differ in the conclusion that defendant could have reasonably anticipated that such negligence would have resulted in injury to plaintiff. Bering Mfg. Co. v. Femelat, 35 Tex. Civ. App. 36, 79 S. W. 869; Railway Co. v. Burns, 63 .S. W. 1035.

The court in subsequent charges properly defined negligence and proximate cause; but neither the question of defendant’s negligence nor the issue of proximate cause was submitted to the jury.

It goes without saying that plaintiff was only entitled to recover compensation for the injuries which the evidence shows he sustained. The evidence was conflicting as to the character and extent of his injuries, and, such being the state of the evidence, it was manifestly erroneous for the court to tell the jury that, if they found for the plaintiff, they should give him such sum as would compensate him for “the injuries complained of.”

The second assignment complains of the following paragraph of the court’s charge:

“The court .charges the jury that, although they may believe that the place where plaintiff was at work at the time of the injury may have, been free from obstruction, yet, if the jury believes from the evidence that the injury, if any, was caused by an accident produced by the defendant’s foreman directing the work at the time unduly hurrying and hastening the men carrying the rail, then the plaintiff would be entitled to recover, provided he himself did not bring on the injury by his own act or neglect.”

This charge repeats and emphasizes the error in the charge complained of by the first assignment, in that it, in effect, instructs the jury that the alleged act of the foreman in unduly hurrying and hastening the workmen was negligence, instead of submitting to the jury the question of whether such act was negligence.

Because of these errors in the charge, the judgment of the court below is reversed, and the cause remanded.

Reversed and remanded. ‘


source: Caselaw Access Project

author: RAINEY, C. J.

license: Public Domain

text:
    TYLER BUILDING & LOAN ASS’N v. BAIRD & SCALES.
    (Court of Civil Appeals of Texas. Dallas.
    March 21, 1914.
    Rehearing Denied April 11, 1914.)
    1. Vendor and Purchaser (§ 239) — Essentials — Intent of Grantor.
    To pass title a deed must be delivered with grantor’s consent that it shall operate to pass title, and a deed coming into grantee’s possession without grantor’s assent, given with the intention that it shall operate as a conveyance, will not pass title even as against an innocent purchaser for value from the grantee, and without notice.
    [Ed. Nóte. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 583-600; Dec. Dig. § 239.]
    2. Escrows (§ 14) — Fraudulent Delivery.
    Where one, in whose possession plaintiff placed a deed for safe-keeping and for delivery after plaintiff had inspected some goods, for which it was to convey the land, fraudulently delivered the deed before the goods were inspected, plaintiff was not bound by the deed holder’s acts, and the delivery was not effectual to pass title.
    ’ [Ed. Note. — For other cases, see Escrows, Cent. Dig. §§ 17-20; Dec. Dig. § 14.]
    Appeal from District Court, Dallas County; J. C. Roberts, Judge..
    Action by the Tyler Building & Loan Association against Baird & Scales. From a judgment dismissing the petition, plaintiff appeals.
    Affirmed.
    Lively, Nelmes ■& Adams, of Dallas, and Lasseter & Mcllwaine, of Tyler, for appellant. Lawther & Pope, of Dallas, for appel-lees.

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

   RAINEY, C. J.

This suit was brought by appellant against appellees to recover damages for the value of certain lands alleged to have been listed by appellant; said damage having been occasioned by the fraud of appellees as agents of appellant.

General and special demurrers to the petition were sustained, and, appellant having refused to amend, the cause was dismissed, and from this action of the court this appeal is taken.

The allegations of the plaintiff’s petition are;

“(1) That plaintiff, Tyler Building & Loan Association, is a private corporation, created, organised, and existing under and by virtue of the laws of the state of Texas, with its principal office and place of business located in the city of Tyler, county of Smith, and state of Texas, and that John Durst, who resides in said city, county, and state, is its president and general manager. That the defendants, J. V. Baird and H. L. Seales, composing the firm of Baird & Scales, as aforesaid, each reside in the city of Dallas, county of Gallas, and state of Texas, but the defendant H. L. Scales is now temporarily in the city of New York, county and state of New York, and for cause of action plaintiff alleges:
“(2) That plaintiff is a private corporation created, organized, and existing under and by virtue of the laws of the state of Texas for the purpose of buying and selling real estate, including trading and exchanging lands for money, other lands, or property, the erection, renting, or leasing of buildings, and the loan of money for the mutual benefit of its members, and was engaged in such business during the year 1909. That the defendants are now and were during the year 1909 engaged in the real estate business in the city of Dallas, and, as such real estate agents and dealers, are now and were during said year 1909 engaged in the business of buying, selling, trading, and exchanging real estate and other properties for themselves, and for others, for hire or compensation. That on or about the 31st day of March, A. D. 1909, said defendants were so engaged in said' business, and on or about said date represented to plaintiff that they had established agencies in most every state in the American. Union, consisting of live, energetic men,, through which agencies they were in position, to make for their clients large- profits on properties turned over to them for trade or-exchange. That on or about said date, and subsequent thereto, plaintiff was the owner-of and in possession of 2,8S8 acres of land in Angelina county, Tex., on the Vincenti. Miehelli grant in said county, described as-follows, to wit: (Here the land is described:)And out of the above-described 1,843.5 acres-there was sold tq Wyndham Robertson 437' acres, undivided interest, as per deed, dated October 26, 1899, recorded in Cherokee County Deed Records Book 17, p. 345, leaving a net balance of 1,406.5 acres, which is hereby conveyed and fully shown on plat hereto attached and made a part of this deed, and marked ‘Exhibit A,’ Plat of the M. del Car-mel Leigo League, Cherokee County, Texas, showing subdivision, which said land was on said date, and is now, reasonably worth a sum of $6 per acre, or a total of $9,139. That the legal title to said last above-named tract of land was at the time of the negotiations, hereinafter set out, in the name of the estate of Mrs. Susan W. Thorn, deceased, of which said estate John Durst was independent executor, but the land in truth and in fact belonged to plaintiff; the same having been bought and paid for by plaintiff, but title thereto never having been conveyed to it. That plaintiff, desiring to sell or dispose of said land, listed same with defendants, for the purpose of being sold or traded, agreeing to pay them reasonable compensation for their services in the event they secured a purchaser suitable to plaintiff, and for a consideration satisfactory to plaintiff. That plaintiff listed its said lands with defendants on or about the 1st day of April, A. D. 1909, for disposition either by sale or trade, in the event suitable purchaser or purchasers could be found who would pay a consideration satisfactory to plaintiff for same, and agreed to pay to defendants, in the event they disposed of said land, a reasonable compensation for their services. That from said date up to the 18th day of September, A. D. 1909, said defendants submitted plaintiff various and sundry propositions of trade for said lands, none of which were' acceptable to plaintiff. That among said propositions to trade so submitted to plaintiff' by defendants were several offers to trade said lands for stocks of dry goods, none of which propositions were satisfactory or acceptable to plaintiff. That on or about the 7th day of September, A. D. 1909, the defendants represented to plaintiff that they could trade said two tracts of land to Kansas City parties at $15 per acre for stocks of general dry goods consisting of clothing, shoes, boots, ■ hats, dresses, etc. That plaintiff advised defendants that it would be willing to trade for such a stock of general dry goods as above described, provided the stock was all right and the goods not damaged, said goods to be traded for to be submitted to inspection by plaintiff, and checking of inventory of same. That defendants represented to plaintiff that said stock of dry goods was a first-class stock of dry goods in every respect, and could be easily handled for cash. That in the negotiations by and between plaintiff and defendants regarding said stock of dry goods, defendant often used the general term ‘merchandise,’ meaning thereby stock of general dry goods consisting of clothing, hats, dresses, boots, shoes, etc., and not a stock of general merchandise. That it was in contemplation of the parties hereto at all times that, in the event said lands were traded for merchandise, it was to..be a general stock of dry goods. That thereafter, to wit, on or about the 18th day of September, A. D. 1909, -the defendant J. Y. Baird, just a day or two after representing to plaintiff that he could trade two tracts of land to Kansas City parties for a general stock of dry goods consisting of clothing, dresses, hats, boots, shoes, etc., as heretofore described, went to Kansas City, and from Kansas City represented to plaintiff that they had been offered for said two tracts of land $60,000 in merchandise, that the defendants, acting by and through the defendant J. Y. Baird, represented to plaintiff that he, the said Baird, had had 20 years’ experience in the dry goods business, that he had examined and handled over 200 stocks of dry goods, and was thoroughly acquainted with the character and quality of dry goods and the value thereof. That plaintiff, relying upon the truthfulness of the said Baird’s representations that he had had 20 years’ experience in the dry goods business and that he was thoroughly acquainted and competent to pass upon stocks of general dry goods as to the kind and quality and as to the price thereof, authorized the defendants to go to Kansas City to negotiate a deal of said lands for such a stock of general dry goods as he had represented to plaintiff he could trade said lands for, but did not authorize defendant to enter negotiations to trade said lands for any other kind or character of said goods. That defendants, as hereinbefore alleged, prior to the time the said Baird went to Kansas City, had represented to plaintiff that said general stock of dry goods consisted of boots, shoes, hats, dresses, etc., and was such a stock of goods as could be easily converted into cash. That plaintiff, upon receipt of the representations of said defendant from Kansas City that he could trade for a $60,000 stock of merchandise for said two tracts of land, believed and relied upon the representations of the said defendants, acting by and through the said J. V. Baird, that said merchandise was the stock of general dry goods, such as the said defendants had represented to plaintiff it could trade said lands for, and was such a stock as plaintiff had authorized the defendants to enter negotiations looking to the exchange of same for said land. That, immediately after the said Baird entered into or attempted to enter into said contract on behalf of plaintiff with the said Mitchell Dry Goods Company for the exchange of said $60,000 stock of merchandise for said two tracts of land, the defendant Baird returned to Texas, and after his return studiously concealed the true character and quality of said stock of merchandise, but represented to plaintiff that he had traded for such a stock of general dry goods as he had represented he would trade for, that is, a general stock of dry goods consisting of clothing, hats, dresses, boots, shoes, etc., which stock inventoried at cost price the sum of $60,000, subject to plaintiff inspecting said goods and cheeking the inventory thereof, and very strenuously and ’ urgently recommended to plaintiff that he accept said trade and close same immediately. That the defendants, acting by and through the said J. Y. Baird, represented to plaintiff, as here-inbefore alleged, that he, the said Baird, had had 20 years’ experience in the dry goods business, that he had examined between $20,-000 and $30,000 worth of the stock of goods offered, and that it was a first-class stock of general dry goods in every particular, and that same consisted of clothing, dresses, hats, boots, shoes, etc., and such other goods as are usually and customarily carried in dry goods stores. Said defendant further represented to plaintiff that the remainder of the stock to make up the '$60,000 was to be taken from the store of the Mitchell Dry Goods Company in Kansas City, Mo., a concern doing a large business in said city, and was to be as good or a better class of goods than the stock examined by him. That plaintiff, believing the statements made by defendants to be true, and relying on their representations, authorized them to proceed with closing said deal for the exchange of said goods for said lands; said trade to be made subject to examination of the goods and checking of the inventory of same by plaintiff. That in pursuance of said trade as represented to it by defendants, plaintiff prepared, executed, and acknowledged, and caused to be prepared, executed, and .acknowledged, deeds for the lands in question, conveying same by warranty title to one B. W. Pope, the party designated by said defendants, and turned said deeds over to defendants for safe-keeping, to be delivered when plaintiff had inspected and examined said stock of goods and checked the inventory thereof. That said deeds were so turned over to defendants by plaintiff on or about the 23d day of October, 1909. That from the time the said Baird returned from Kansas City up to the said 23d day of October, 1909, the said defendants had studiously and diligently represented to plaintiff that said stock -of goods so traded for was a first-class stock of general dry goods consisting of clothing, dresses, boots, shoes, hats, etc., and had strenuously and diligently concealed from plaintiff the true character of said stock of goods. That the defendants had, up to said time, failed and refused to furnish to plaintiff a copy of the contract that they had entered into on behalf of plaintiff with said Mitchell Dry Goods Company, and had failed and refused to furnish to said plaintiff an inventory of said stock of goods, and plaintiff at the time it left said deeds with the said defendants believed and relied on their representations that it was to get the kind and character of goods represented by defendants that it would receive for said land. That plaintiff on the -23d day of October, A. D. 1909, relying on defendants’ representations that they had traded for said stock of general dry goods subject to plaintiff’s inspection of same and the checking of the inventory thereof, procured the services of an expert and experienced dry goods man to go to Kansas City and inspect said stock of dry goods and to check the inventory thereof, and said expert went to Kansas City in compliance with plaintiff’s request, arriving there on the 25th day of October, 1909. That on the same day defendants, knowing that plaintiff had procured the services of said expert dry goods man to examine said stock, and knowing that he had not examined nor had an opportunity to examine same, in utter and willful disregard of plaintiff’s rights, and in violation of their authority, and against plaintiff’s directions and instructions, turned over and delivered said deeds to the Mitchell Dry Goods Company, the beneficiary in said trade, and without plaintiff’s knowledge, consent, or authority, but with full knowledge of the fact that plaintiff had sent an expert dry goods man from Texas to Kansas City to inspect said goods and check the inventory thereof, appointed one Ernest Lovan to act for it in accepting to stock of merchandise. That the said Ernest Lovan was the party who had, through all the negotiations, and who was at that time representing the said Mitchell Dry Goods Company as its agent, which fact defendants well knew, for the reason that all of their negotiations on behalf of plaintiff with said Mitchell Dry Goods Company had been made by and with the said Lovan.
“Plaintiff alleges: That it turned over its said deeds to the said defendants on the 23d day of October, A. D. 1909, and that on the same day defendants took the first fast train out of Dallas, Tex., for Kansas City, and, as soon as they could reach the office of the Mitchell Dry Goods Company after arriving in Kansas City, delivered.plaintiff’s deeds to it, well knowing at the time that plaintiff’s dry goods man whom it had employed to go to Kansas City to inspect and examine said goods and check the inventory, therefor, had not examined any of said goods or checked the inventory, if he had in fact even had time to reach the house where the said goods were located; that, immediately upon receiving said deeds, said dry goods company caused said land to be conveyed to an innocent purchaser for value without any notice; that, as hereinbefore alleged, defendants had from the date of their return from Kansas City, up to the time said deeds were turned over to them, studiously and diligently deceived plaintiff as to the true character and value of said stock of goods, and used all the devises and representations within their power to induce plaintiff to forego inquiry into the true quality and value of said stock of merchandise.
“Plaintiff would further show to the court: That the stock of goods which defendants received for its lands was not a stock of general dry goods consisting of boots, shoes, dresses, hats, clothing, etc., such as was-represented to it to be, but that the majority of said stock consisted of cheap and worthless jewelry, notions, etc. That in said stock inventory $60,000 there was about $30,000 worth of cheap and worthless jewelry consisting of neck chains, breastpins, collar buttons, and trinkets of like kind and character, all of which were practically worthless; and $93.95 worth of ladies’ waists. That in said stock there was millinery goods consisting of hats, braids, belting, etc., amounting to over $6,000, while the shoes in said stock amounted to $371. There was in said stock goods cheap and worthless buttons inventorying over $2,500, and piece goods inventorying only $165. That there was $6,295.11 of ladies’ neck chains and $53.17 of hosiery and underwear. That said stock did not contain the boots, -shoes, clothing, hats, dresses, etc., as defendants had represented to plaintiff it did contain; but same was, as hereinbefore alleged, made up of neck chains,' stickpins, brooches, breast-pins, braids, and trinkets of like kind and character, all of which are, and were at the time -plaintiff traded for same, or attempted to trade for same, practically worthless. That plaintiff never did at any time authorize its lands to be traded for any such stock of goods, has never agreed to accept the same for its lands, nor did it authorize or ratify defendants’ attempted acceptance for it. Plaintiff further alleged that the defendants knew, or by the exercise of ordinary care and diligence could have known, that plaintiff did not trade for any such stock of goods as was tendered to it; but, notwithstanding this fact, defendant negligently, carelessly, and fraudulently delivered plaintiff’s deeds to the said Mitchell Dry Goods Company without seeing or attempting to see that plaintiff received the goods for- which said defendants agreed to exchange said land.
“Plaintiff further alleges that the defendants by reason of their fraudulent acts and conduct intended to and did rob, cheat, and defraud plaintiff out of its land without paying value therefor, and, in furtherance of such attempt to so defraud plaintiff, said defendants delivered plaintiff’s said deeds to said Mitchell Dry Goods Company, without plaintiff’s knowledge, consent, or authority, and against its express direction, and without any authority from plaintiff attempted to appoint the said Lovan, the agent of the Mitchell Dry Goods Company, the beneficiary in said trade, to represent the plaintiff in receiving said stock of goods; that by reason of said fraudulent acts on the part of defendants in turning over and delivering its deeds as aforesaid, without its authority, and by reason of their negligence and carelessness in not seeing that plaintiff received the stock of goods it was to receive in exchange for said lands, they have deprived plaintiff of its land, without compensating it therefor, which land plaintiff alleges to be worth $27,811, for which amount it asks judgment-; that plaintiff has demanded of defendants and of the said Mitchell Dry Goods Company a return of the deeds to its said land, which demand has been and is still refused.
“(3) Plaintiff further alleges: That by reason of defendants’ willful violation of their duty in delivering its deeds as aforesaid, and depriving it of its said land, it has been compelled to and has gone to considerable expense in an effort to regain its said lands, or value therefor, in the way of traveling expenses, attorney’s fees, telegrams, and telephone calls, etc., to the amount of $2,500: That it has been compelled to employ attorneys at an expense of $1,500 and pay their expenses in attending to said litigation in the sum of $500; and that plaintiff has paid out in other expenses in traveling expenses, telegrams, telephones, hotel bills, etc., the sum of $500, aggregating the sum of $2,500— all of which items of expenses were' brought' about and made necessary by defendants’ utter disregard of plaintiff’s rights and will- - ful violation of their authority. That but for defendants’ acts in the premises plaintiff would not have had to expend said amounts, but same are necessary by reason of and as the direct result of the acts hereinbefore complained of on the part of the defendants. Wherefore it prays judgment for said sum of $2,500 to cover said expenses.
“(4) Wherefore, premises considered, plaintiff prays for process according to law, and upon final trial hereof that it have judgment against said defendants, both jointly and severally, for the value of its land, to wit, the sum of $27,911, for its damages in the way of expenses in the sum of $2,500, making a total of $30,411, together with 6 per cent, interest thereon from the 25th day of October, A. D. 1909, for all costs of suit, and for such other and further relief, both general and special, as it may be entitled to receive, by reason of the above-stated facts, and in duty bound will ever pray.”

The appellant complains of the sustaining of the general demurrer, and of the special demurrer, which reads: “Further answering, the said defendants, by their attorneys, come and say that the said plaintiff’s first amended original petition is insufficient in law, because it appears from the allegations therein contained that the deeds' to the land which the plaintiff caused to be prepared, executed, and acknowledged, conveying said land by warranty deed to one B. W. Pope, were delivered to these defendants for safekeeping to be delivered to the grantee when, and not until, the plaintiff had inspected and examined said stock of goods and checked the inventory therefor; that afterwards these defendants, without the consent, knowledge, or authority of said plaintiff, and in violation of plaintiff’s authority, and against their express directions and instructions, and with fraudulent intent, and in pursuance of a conspiracy entered into by and between these defendants and Mitchell Dry Goods Company to rob, cheat, and defraud the plaintiff out of its lands, delivered said plaintiff’s deeds to the said Mitchell Dry Goods Company. Wherefore, because from the aforesaid allegations it appears that said deeds were delivered by plaintiff to these defendants in escrow, and that these defendants, with fraudulent intent and in pursuance of a conspiracy with the Mitchell Dry Goods Company to defraud and cheat the plaintiff, and without the plaintiff’s knowledge, consent, or authority and against its express direction, delivered the said deeds to the said Mitchell Dry Goods Company, the real beneficiary in said deeds, it appears from the allegations in the said plaintiff’s first amended original petition that the title to said lands did not pass from it by the delivery of said deeds by these defendants to the said Mitchell Dry Goods Company; that there has been no transfer of title from the plaintiff to the property named as guaranteed in said deeds; and that the title to the lands described in the plaintiff’s petition is still in the plaintiff, by reason whereof the said plaintiff is not entitled to recover the value of said lands from these defendants, and of this these defendants pray the judgment of the court.”

The damages sought to be recovered is based upon the theory that plaintiff had lost its land by the fraudulent delivery of a deed executed by it conveying said land, by its agent Baird, one of the defendants. It is alleged that plaintiff had agreed with Mitch-chell Dry Goods Company to exchange said land for a certain stock of dry goods, and in pursuance thereof it had executed a deed of conveyance and placed it in the hands of J. Y. Baird “for safe-keeping, with the express direction not to deliver the same to the dry goods company until it had had the stock of goods inspected and the inventory checked”; and that Baird, “disregarding its said express directions, and without its knowledge, consent, or authority, having turned over its deeds to the dry goods company before it had made its inspection and checked the inventory as agreed, that thereby it was robbed of its lands.”

There is no allegation that plaintiff had been dispossessed of the land, or that the stock of dry goods had ever been delivered to it, nor that it can be deprived of its land without its consent. It is shown that the deed was placed in escrow to be delivered to the dry goods company upon the happening of certain conditions, which never took place.

To pass title to land the conveyance must be in writing and a delivery thereof must be made with the consent of the grantor, and with the intention on the grantor’s part that it shall operate as a conveyance of the title. The allegations of the petition show that there was no legal delivery of the deed, and therefore no legal title passed to the dry goods company, and we cannot see how the dry goods company can pass title to an Innocent purchaser. We agree with ap-pellee; the law is that “a deed which comes into possession of the grantee without assent of the grantor and without his intention that the same shall operate as a conveyance is ineffectual to pass the title to the property which it purports to convey, even as against an innocent purchaser for value and without notice.” Spotts v. Whitaker (Giv. App.) 157 S. W. 424; Houston Land & Trust Go. v. Hubbard, 37 Tex. Giv. App. 546, 85 S. W. 474; King v. Hill (Civ. App.) 75 S. W. 551; Steffian v. Bank, 69 Tex. 513-519, 6 S. W. 823; Everts v. Agnes, 4 Wis. 356, 65 Am. Dec. 314; Harkreader v. Clayton, 56 Miss. 383, 31 Am. Rep. 369.

The appellant contends, in effect, that Baird was its agent, and, so being, it cannot be hear.d as against an innocent purchaser to take advantage of Baird disobeying instructions in regard to a delivery of the deed.

The petition alleges fraud on the part of Baird in delivering the deed, and therefore he was not acting as appellant’s agent, and it is not bound by his acts, and the matter stands as though no delivery was made. Association v. Parham, 80 Tex. 518, 16 S. W. 316.

We think in the particular named the petition does not show a right of recovery for the value of the land, and the judgment is affirmed.


author: HENDRICKS, J.

text:
    QUANAH, A. & P. RY. CO. et al. v. GALLOWAY.
    (Court of Civil Appeals of Texas. Amarillo.
    March 14, 1914.
    Rehearing Denied April 11, 1914.)
    1. Limitation op Actions (§ 127) — Commencement op Actions — Amendment op Pleadings.
    Where, in an action brought by one partner or joint owner, the petition was amended so as to make the other partner a party plaintiff, limitations did not run against the cause of action up to the date of such amendment, since the injection of the other partner as a party plaintiff was not the assertion of a new cause of action.
    [Ed. Note. — Eor other cases, see Limitation of Actions, Cent. Dig. §§ 543-547; Dee. Dig. § 127.]
    2. Appeal and Error (§ 591) — Record—Presentation op Grounds op Review — Instructions — Objections.
    Under Acts 33d Leg. c. 59, § 3, amending Rev. St. 1911, arts. 1970, 1971, 1973, 1974, relating to the time and manner of submitting instructions to the jury, and article 2061, declaring that the ruling of the court in the giving, refusing, or qualifying of instructions shall be regarded as approved, unless excepted to in the manner provided, the ruling of the trial court in refusing a request will not. be reviewed on appeal, where the record does not show any exception thereto at the trial; a general exception to tile overruling of a motion for a new trial being insufficient.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2300-2305; Dec. Dig. " 501.]
    3. Appeal and Error (§§ 262, 549) — Presentation and Reservation in Lower Court of Grounds op Review — Submission op Special Issues.
    The action of the trial court in refusing to submit a case upon special issues will not be reviewed on appeal, unless such ruling is excepted to and a bill of exceptions taken, since such a request is neither a charge given nor a request refused, but stands upon a different footing.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 1582-1589, 1593-1595, 2441-2451; Dec. Dig. §§ 262, 549.] .
    4.Appeal and Error (§ 501) — Matters to be Shown by Records — Exceptions.
    Though the record showed an objection purporting to have been made by appellant to the general charge of the court, yet, as the record did not show any ruling on the exception, and appellant’s statement did not show any such objection, it could not be considered on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2300-2305; Dec. Dig. § 501.]
    5. Appeal and Error (§ 501) —Presentation and Reservation in Lower Court op Grounds of Review — Requests to Charge.
    Where the record on appeal did not show an exception to the refusal of the trial court to give a request, the appellate court must consider such ruling approved under the express provisions of Acts 33d Leg. c. 59, § 3, amending Rev. St. 1911, art. 2061.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2300-2305; Dec. Dig. § 501.]
    6. Trial (§ 284) — Waiver of Errors — Instructions to Jury.
    In an action against connecting carriers for injury to cattle, the failure of defendants to except to the refusal to give a request to apportion the damages was a waiver of an objection to the general charge on the same point, since, there being no exception to the refusal to give the special charge, it stood approved, under the express provisions of Acts 33d Leg. c. 59, § 3, amending Rev. St. 1911, art. 2061.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 683-685; Dec. Dig. § 284.]
    7. Appeal and Error (§ 263) — Presentation and Reservation in Lower Court of Grounds of Review — Requests.
    Though. Rev. St. 1911, art. 1974, as amended by Acts 33d Leg. c. 59, § 3, provides that, when a request is given, the court shall note the same, subscribe his name thereto, and it shall be filed with the clerk and constitute a part of the record of the cause, yet, under the express provisions of article 2061, it must be excepted to, or it will be regarded as approved.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1516-1523, 1525-1532; Dec. Dig. § 263.]
    Appeal from Cottle County Court; W. E. Prescott, Judge.
    Action by W. W. Galloway against the Quanah, Acme & Pacific Railway Company and others. From a judgment for plaintiff, defendants appeal.
    Affirmed.
    See, also, 154 S. W; 653.
    Fires, Decker & Clarke, of Quanah, for appellants. Browne & Hawkins, of Paducah, for appellee.

      For other oases 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

   HENDRICKS, J.

Extracted from appellant’s brief, this suit was brought by the appellee against the railway companies, as connecting carriers, for alleged injury to a shipment of Jersey cattle from Ft. Worth, Tex., to Paducah, Tex., on account of delay and rough handling by appellants, and claiming that some of the cattle died and some were badly injured as the result of the shipment.

The appellants, after general denial, pleaded the contributory negligence of the Shipper, inherent defect in the cattle, and a written contract between appellee and the Ft Worth & Denver City Railway Company, by the terms of which, amongst other things, it was alleged that neither of the defendants should be liable for any damages or injury not occurring on its line respectively. The cause was submitted to a jury, resulting in a verdict in favor of the appellee for $415, which was reduced by remittitur, and judgment entered for $370.

The suit against appellants was instituted by W. W. Galloway, whose original petition was filed August 5, 1910, followed by an amended original petition filed by him June 10, 1912. September 8, 1913, J. B. McCarley filed a plea of intervention in said cause, alleging that he was the owner of an undivided one-half interest in the cattle and the cause of action; also adopting the pleadings of the plaintiff, Galloway, and asserting that as to Galloway’s petition, “that each allegation therein is true, and that the same be considered as filed by this intervener.” The trial court, in submitting the cause to the jury and entering the judgment of the court, treated Galloway, the original plaintiff, and McCarley, the intervener, as plaintiffs with reference to the recovery of the cause of action.

First. The defendants, appellants herein, by special exception, interposed the statute of limitation of two years; also answering specially that his cause of action was barred by the same statute. We infer that appellant’s position is that, as the record discloses “that McCarley owned a half interest (in the cattle) from the inception of the transaction,' * * * consequently was entitled to one-half of any recovery, and hence was a necessary party to the suit,” and having substituted «himself as party plaintiff, as to a part of the cause of action, and two years having elapsed before the amendment, the statute applies. The case of East Line & Red River Railroad Co. v. Culberson, 72 Tex. 375, 10 S. W. 706, 3 L. R. A. 567, 13 Am. St. Rep. 805, cited as authority for the position, sustains an apparent, but not a real, analogy to this case. The above ease indicates tit at, on an appeal to the Supreme Court, it was reversed, because the mother of the deceased, a beneficiary under the statute, had not been made a party, in some capacity, to the suit. Subsequently the petition was amended so as to bring the suit for the benefit of the mother, as well as for the benefit of the wife and children, of the deceased. An exception was interposed to the amended petition, which was filed more than 12 months after the death of the deceased, upon the ground that the cause of action was barred by the statute of limitations (12 months then being the period of limitation). The Supreme Court held, as to the original plaintiffs, the wife and children, the exception was not well taken, but should, .however, have been sustained as to the mother of the deceased; for “the action” originally “was neither brought by her, nor for her benefit,” and “the suit in behalf of the beneficiaries did not affect the running of ■the statute against her.” In reading the case of Railway Co. v. Mertink, 101 Tex. 165, 105 S. W. 485, by Justice Brown, we can more clearly discern the reasoff of the ruling in the Culberson Case, supra, the Supreme Court announcing in the latter case, “The statute gives the right of action to all of the parties to recover one sum” and, “under the statute, there can be but one action,” and holding that where five parties were entitled to sue, and two alone brought suit for themselves, and recovered the damages without any notice being taken of the other three, that the error goes to the very foundation of the action, and, until the other three are joined in some manner in the suit, there can be no recovery; the suit not having been •originally brought for the benefit of the other three.

Hence the question is, assuming that Mc-Carley was injected into this suit as a new party plaintiff, and not merely for the purpose of protecting his beneficial interest: Is there such an amendment to the original cause of action originally brought by Galloway as to constitute his position in the suit a party plaintiff setting up a new cause of action? Galloway was the consignor and consignee of the property shipped, and the contract of shipment was made with him alone, and the intervention shows that Mc-Carley, if not strictly a partner, was at least a joint owner of the property. As an original proposition, under the authorities of the appellate courts of this state, Galloway, of course, could maintain the suit individually, and the appellants would be liable to him for all damages — different from the Culberson Case. Missouri Pacific Ry. Co. v. Smith, 84 Tex. 348, 19 S. W. 509; Southern Kansas Ry. Co. v. Morris, 100 Tex. 611, 102 S. W. 396, 123 Am. St. Rep. 834; Cleveland v. Heidenheimer, 92 Tex. 108, 46 S. W. 30. “The plaintiff has a right to sue alone, although the horses may have been the partnership property of himself and another.” Ry. v. Smith, supra. McCarley, without his intervention, would have been the beneficiary of any recovery had by Galloway against the railway company, and was not a necessary party to the suit in order to dispose of the cause of action, different from the Culber-son and Mertink Cases, supra, and this difference in the status of the two cases, we think, invokes the application of a different rule. The Supreme Court illustrates this difference in the ease of Roberson v. Mcll-henny-Hutehins Co., 59 Tex. 615, quoting the syllabi, as properly reflecting the gist of the case: “When, in an action by a partnership, the name of one of the members is omitted from the petition as a party plaintiff, he may be made a party plaintiff by amendment, without the necessity of further service on the defendant; the cause of action remaining the same.” “Limitation would not in such case run against the cause of action up to the date of such amendment.” Also see Me-Ilhenny v. Lee, 43 Tex. 205; Garrett v. Muller, 37 Tex. 589; Trevino v. Stillman, 48 Tex. 565. “Unless otherwise provided by statute, a copartnership is not considered a person, and must sue and be sued by its members.” Frank v. Tatum, 87 Tex. 206, 25 S. W. 409. While, under the Tatúm Case, a partner may be a necessary party in bringing a suit, however, under the Supreme Court decisions, an amendment making him one does not make a new cause of action. We think the analogy much closer between the character of cases cited by us, holding that the injection of a partner as a new party plaintiff is not the assertion of a new cause of action, than the line of cases indicated by appellants. In order to permit a bar by the statute of limitations to the cause of action, the amendment must set up a new cause, which we think did not occur in this case.

Second. The appellants complain that the court erred in refusing their special charge No. 4, Which is as follows: “If you shall find from the evidence that at the time the cattle were delivered to defendant Ft. Worth & Denver City Railway Company, that one of the cows in said car was down, and that such cow, being down, caused other cattle to fall in the car and become injured, then for such injuries to said cattle plaintiff is not entitled to recover.” Appellants’ statement for the purpose of sustaining the appropriateness of the charge quoted indicates that their special answer raised the particular issue suggested; that the evidence was also pertinent to tbe same; and especially that, as to the injury of this particular cow, having died en route, the injury may have been caused by the oil dip to which the cattle had been subjected prior to the shipment, and not to the shipment.

However, we are inclined to think that the condition of the record is such that, under the act of the 33d Legislature with reference to tlie trial of causes and tlie submission.of general and special requested instructions to the jury (General Laws of Texas, p. 113), the appellants are unable to complain of the action of the trial court in this respect. We quote portions of the act of the Legislature germane to this question:

“Article 1970. In all civil cases the judge shall, unless the same be expressly waived by the parties to the suit, prepare and in open court, deliver a written charge to the jury on the law of the case, * * * in the manner and subject to the restrictions hereafter provided, provided that the failure of the court to give reasonable time to the parties or their attorneys for examination of the charge shall be reviewable upon repeal [appeal] upon proper exception.
“Art. 1971. The charge shall be in writing and signed by the judge; after the evidence has been concluded the charge shall be submitted to the respective parties or their attorneys for inspection and a reasonable time given them in which to examine it and present objections thereto, which objections shall in every instance be presented to the court before the charge is read to the jury, and all objections not so made and presented shall be considered as waived,” etc.
“Art. 1973. Either party may present to the judge, in writing, such instructions as he desires to he given to the jury; and the judge may give such instructions, or a part thereof, or he may refuse to give them, as he may see proper, * * * provided, such instructions shall be prepared and -presented to the court and submitted to opposing counsel for examination and objection within a reasonable time after the charge is given to .the parties or their attorneys for examination.
“Art. 1974. When the instructions asked or some of them, are refused, the judge shall note distinctly which of them he has given, and which he refused and shall subscribe his name thereto and such instruction shall be filed with the clerk and shall constitute a part of the record of the cause, subject to a revision for error (without the necessity of taking a bill of exceptions thereto).” The parenthesis is ours.
“Art. 2061. The ruling of the court in the giving, refusing, or qualifying of instructions to the jury, shall &e regarded, as approved, unless excepted, to as provided for in the foregoing articles,” (The italics are ours).

The ruling of the court in refusing to submit to the jury the special instruction in question is not shown, in this record, to have been excepted to- in any manner by the appellants. It is true that the motion for a new trial assigns error upon the action of the court in refusing the special instruction, and the order of the court in overruling this motion is excepted to as usual in such cases; however, the exception suggested in article 2061 (as provided for in the foregoing articles) is, of course, made at a different time than the general exception overruling a motion for new trial. There being no exception in this record, as contemplated by the statute, leveled at the action of the court in refusing the special instruction, and the refusal of the trial court, refusing the charge, requiring this court to regard the action of the trial court as having been approved by appellants, we are unable to consider the alleged error; there is none.

Third. The appellants assign error because the court refused their request for the submission of special issues. They assert that the record discloses that a written request for the submission of the cause on special issues was filed and made before the court charged the jury, and refused by the trial court. There appears in the record a statement by the trial court to the effect that, after the close of the evidence, the court prepared his general charge, and submitted the same to counsel for both parties, and that appellants’ counsel filed numerous objections to the charge, and prepared and requested several special charges, some of which were given, and some refused. “That, after the defendants’ attorneys had taken up something like one hour and one half in objection to the charge and preparing special charges, * * * the attorneys for the defendants orally requested the court to instruct the jury on special issues, without designating any particular issues,” and that he refused at this juncture to prepare another charge, and to submit the cause on special issues. The condition of the recoi'd is such as to exclude a determination of the particular question involved, as applied to this record as a rule of practice. In the case of Ry. Co. v. Cody, 92 Tex. 633, 51 S. W. 329, the Supreme Court said: “ * * * We find, upon inspection, that there appears (in the transcript) a written request by counsel for defendant to submit the case upon special issues, accompanied with a special request to submit certain issues. These are marked ‘Refused’ by the judge. That is all that the record shows with reference to the matter. We are of opinion that a party who desires to review the action of the court in refusing a submission upon special issues should except to the ruling of the court and take a bill of exceptions thereto. Such a request is neither a charge given nor a requested charge refused, and it stands upon a very different footing. The propriety of a bill of exceptions in such a case is shown by the very record before us.” The statement of the trial court, purporting to be explanatory of conditions with reference to the manner of the presentation of the request for special issues, is not adverted to by us as having any force whatever aiding a review of the matter; the statement was prepared after the adjdurnment of court, and, of course, is unavailable for any purpose. It is true that in this record there is an order overruling the request of the defendants for the submission of the cause upon special issues, and in the Cody Case, supra, quoted from by us, there seems to have been no order evidencing any action of the court upon the request. While article 1985 of the Revised Civil Statutes is amended by the Thirty-Third Legislature, regular session (Session Acts, p. 113), however, not to such an extent as to suggest any different method of procedure than indicated by Chief Justice Gaines in his opinion in the above case. A bill of exceptions not appearing in this record, and regarding ourselves as bound by the decision mentioned, we overrule the assignment.

Fourth. The appellants also assign that: “The court erred in its charge to the jury, in failing to instruct them to apportion the damages between the defendants, and refusing to give defendants’ special charge No. 1, instructing the jury to apportion the damages between the defendants.” The following is the special charge, quoting that part only applicable to the matter presented, and omitting formal parts: “The plaintiff alleges that he suffered injuries by reason of both the defendants, Quanah, Acme & Pacific Railway Company and Ft. Worth & Denver City Railway Company. Now, if you shall find that plaintiffs’ cattle were injured, as alleged and in the manner alleged, through the negligence of the Quanah, Acme & Pacific Ry. Co., then you will determine the amount of damages suffered through such negligence, and assess the same against the Q., A. & P. Ry. Co., and, if you shall find that plaintiffs’ cattle were injured in the manner and through the negligence of the defendant Ft. Worth & Denver City Railway Company, then you will determine the amount of such damages as were occasioned by the negligence, if any, of the Ft. Worth & Denver City Railway Company.”

The appellants do not show in their statement that any objection was made to the general charge of the court in failing to instruct the jury to apportion the damages; when we go to the record, such an objection is found as purporting to have been made by the Q., A. & P. Ry. Co. There is nothing in the record legally and properly explanatory of any action of the court as to the objections which were presented to the general charge, when they were presented, whether acted upon by the trial court, or whether in reality they were ever presented to the court for consideration. We are presuming that the purpose and intent of the action of the Legislature referred to by us is to afford opportunity to the trial court, by appropriate objections upon the part of counsel, to correct errors in the general charge. In the condition of this record, we are unable to consider the objections to the general charge. As to the special charge, which appellants contend embody the proposition as a request to the court to submit the matter of apportionment of damages to the jury, it is in the same condition as the charge considered by us in the second paragraph of this opinion; the record not showing an exception to the refusal of the court to give such charge, such refusal, under article 2061, is required to be regarded by us as approved. Again, if we could consider the general objection to the charge of the court in failing- to present to the jury an apportionment of damages, and if, as appellants contend in their assignment, the special instruction raises the same question, refusal of the special instruction, standing approved on account of a failure to except to the refusal of the court, the objection to the general charge of the court with reference to the same proposition would be regarded as waived. The appellants in this matter are insisting that the venue statute applies, which requires the jury, upon request of either party, to apportion the damages between the defendants, where damages are recovered in suits against more than one defendant, not partners, in the transportation of any freight by two or more railroad companies. Subdivision 25, art. 1830, Acts of the 33d Legislature (Session Acts) p. 426, which particular subdivision is the same in the venue statute existing prior thereto, amended, however, in other respects. There is no request properly shown relevant to the particular matter.

Fifth. Complaint is made that the trial court erred in submitting to the jury the following special charge, and requested by appellee, and given by the court: “If you find there was not a through bill of lading and through shipment of plaintiffs’ cattle from Ft. Worth, Tex., to Paducah, Tex., then and in that event you will apportion the damages, if any you find, to each of the defendants as the evidence may show apportionable to them, if any.” It is noted that, under article 1973, quoted by us supra, that special instructions requested by either party, the opposing counsel have a reasonable time for the purpose of examining and objecting to the same before the submission of such instruction to the jury. And, under article 1974, when the instruction is given, the court shall note the same, subscribe his name thereto, and it shall be filed with the clerk, and constitute a part of the record of the cause, subject to a revision for error, however, the giving of same, under article 2061, is regarded as approved the same as the refusal of a special instruction, unless excepted to, which is not shown in this record. Article 1974 of the Revised Statutes of 1911, it is to be noted, reads: “Such instruction shall be filed with the Clerk and shall constitute a part of the record of the cause, subject to a revision for error, without the necessity of taking a bill of exceptions thereto.” The acts of the 33d Legislature, in substituting article 1974, omitted the language “without the necessity of taking a bill of exceptions thereto,” shown in the parenthesis added by us, and reading the old article and the new in Juxtaposition with the language omitted, may imply that, because heretofore the revision for error could be made without a bill of exceptions, at present it may require such a method of exception. This question is not squarely presented in this record; neither is the question as to the character and kind of exceptions for the preservation of error presented in the record as to the other propositions passed upon in this cause. We feel assured from the analogies of the law that, as to the objections made to the general charge of a court, the action of the court exhibiting the time of the presentation of the objections or any other matters germane to the same should be presented in the record in some form, and an exception reserved thereto, and are confident that as to the giving or refusing of special charges, that counsel, if not diligent, will approve the action of the trial court in many respects. As to the method of the preservation of exceptions, we have not the benefit of either briefs or arguments, and, as the record is totally silent as to any showing of any exception as to such matters, we prefer to decide it when presented. Complicated questions of construction are suggested by this statute, and it would be more timely and appropriate for us to consider the purpose of the same when the. questions are directly raised.

We have considered all the assignments of appellants, and upon the record there is no reversible error, and the judgment of the trial court is affirmed.


text:
    SOUTHERN KANSAS RY. CO. OF TEXAS v. CRUTCHFIELD.
    (Court of Civil Appeals of Texas. Amarillo.
    March 28, 1914.)
    1. Appeal and Eeeoe (§ 681) — Record—Review — Amendment oe Petition.
    It cannot be said that there was, what is not allowed, an amendment of the petition, ■on appeal from a justice to the district court, equivalent to bringing a new action, on the theory of the original petition stating no cause of action, it merely appearing that in the district •court, to meet a special exception, that the petition did not allege which of defendant’s trains killed plaintiff’s cow, or the time of day it was killed, an amendment was made.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2883, 2884; Dee. Dig. § '681.]
    2. Pleading (§ 34) — Constbuction—Geneeal and Specific Allegations.
    The general allegation of negligence in a petition is referable to, and controlled by, the ■specific acts of negligence charged.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 5%, 66-74; Dec. Dig. § 34.]
    3. Railboads (§ 439) — Killing Stock — Failtjee to Observe and Warn — Pleading.
    Failure to observe, as an element of failure to warn, is sufficiently alleged, as against a general demurrer, by the allegation, in a petition for the killing of a cow by a train, that the engineer negligently failed to warn the cow from the track.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1551-1569; Dec. Dig. § 439.]
    4. Appeal and Eeeoe (§ 230) — Review — Waived Objections to Charge.
    Under Rev. St. 1911, art. 1971, as amended by Acts 33d Leg. c. 59, providing that objections to the charge not presented to the court before it is read to the jury shall be considered waived, objections so waived cannot be urged on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 230.]
    Appeal from District Court, Carson County; F. P. Greever, Judge.
    Action by J. J. Crutchfield against the Southern Kansas Railway Company of Texas. From a judgment of the district court for plaintiff, on appeal from a justice, defendant appeals.
    Affirmed.
    Hoover & Hoover, of Canadian, for appellant. Fayette Ratliff, of Panhandle, for appellee.

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

   HENDRICKS, J.

This suit was instituted by the appellee, Crutchfield, against appellant railway company, in the justice court, precinct No. 1, Carson county, for the sum of $100, for damages for the loss of one milch cow, alleged to have been killed by the negligence of the railway company in the operation of one of its trains. Upon appeal to the district court of that county (the county court of Carson county not having civil jurisdiction), a verdict and judgment were rendered in favor of appellee for the sum oi $100, and in the district court plaintiff amended its cause of action by written pleading brought about by a special exception of the appellant railway company, in which amendment it was more specifically alleged which particular train killed the cow of plaintiff and the time of the day the act occurred.

The appellee, plaintiff in the lower court, in the written amendment of his cause of action alleged that the defendant, in operating one of its east-bound freight trains through the town limits of the town of White Deer, about nine o’clock a. m., April 26, 1913, negligently, and without exercising the proper degree of care ran down and ran against plaintiff’s cow, and thereby killed her, to the plaintiff’s damage, etc. Following this general allegation, “plaintiff alleges that defendant * * * was negligent in this: Defendant was running said train at a high rate of speed through the limits of the town of White Deer, at which place it has no fence inclosing its right of way, and that defendant knew, or could have known, by exercising ordinary care, that stock and cattle are running at large on several sections surrounding said town of White Deer; and would further show that said cow was upon the right of way for a distance of several hundred yards and 'that said employés operating said train neglected to sound any warning, whistle, or alarm to cause said cow to leave said track, and- that said defendant failed to slow down said train, but negligently ran down said cow, all of which [was] the proximate cause of the death and loss of said cow.” Upon the pleading of the railway company to the effect that said company was- not required to fence its right of way at the place where the accident occurred, the plaintiff, in open court, then admitted that said company was not required to fence its right of way where the cow was killed, which said admission seems to have been regarded by counsel in the trial court as a part of plaintiff’s pleadings.

As stated, the railway company demurred that the original petition neither alleged which train killed the cow nor the time of day the same was killed, and we gather from the record that the amendment met this special exception alleging said omissions. Appellant says that this amendment would be equivalent to the bringing of a new action, which could not be done in the district court, for the reason that the pleading amended stated no cause of action, and attempts to apply- the case of Lasater y. Pant, 43 S. W. 321, decided by the Supreme Court of this state. The cause decided by the Supreme Court was an action of forcible entry and detainer, the complaint in which was totally defective with reference to several particulars specifically prescribed by statute, and Justice Williams did say in that case: “The complaint is so defective that it states no cause of action whatever, and an amendment of it in the county court would be equivalent to the bringing of a new action, which cannot be done in that court”— and reversing and dismissing the cause on that account. The statement of the original' cause of action made by appellee in the justice court, or either in the district court, in the first presentation of same, is not in this record. The citation would not be so regarded strictly as a pleading for the purpose of solving this question, and we are unable to determine that the amendment here was equivalent to' the presentation of a new cause of action, and can only determine that it was amended as indicated, unless we would presume that the abandoned pleading contained all the other elements indicated in the amended pleading, except the new allegations produced by the demurrer. If we regard it as merely an amplification of the original statement of the cause of action produced by the demurrer, this record does not bring the ease within the rule of the Supreme Court announced in the Lasater-Fant Case, supra. In that case the complaint of forcible entry and detainer was, so to speak, a piece of waste' paper, and did not constitute a pleading invoking the elements of the statute in Such causes, and the Supreme Court regarded the amendment as the first statement of any cause of action — quite different from the record here.

The railway company complains that the verdict and judgment, is contrary to the law and the evidence, which we regard as the only question in the case. Noting the plaintiff’s pleadings, the challenge is that there ,is an omission of allegation that the engineer operating the train saw the cow upon the track, or could have seen the animal by the exercise of ordinary care, and that the general allegations of negligence in said petition would be referable only to the allegations of particular negligence, and would not embrace any negligence, attempted to be imputed to the engineer with reference to seeing or failing to see said animal upon the track. Relevant to this pleading, we think appellant is right, under numérous authorities that the general allegations of negligence would be controlled by the allegations of specific acts charging a want of ordinary care. It is, however, undisputed in this record that an engine, about the time mentioned in plaintiff’s petition, killed the particular cow. The testimony tends to show that this particular engineer was operating the engine causing this accident. Without objection, he testified that the trainmaster tendered him a form of accident report for the purpose of making out the same; however, stating that he denied killing ¡the cow on that particular date. This was for the jury, and, even upon testimony of this character, it could be inferred that this agent, to whom was tendered this report, and recognized by the railway company as the-one committing the act, was the one, in “operating said train, neglected to sound any warning, whistle, or alarm to cause said cow to leave said track, * * * and failed to slow down said train, * * * which was the proximate cause of the death of said cow.” It is clear from the ■ engineer’s own testimony that he could have seen and warned the cow if the cow was upon the track, as suggested by the other- witnesses. The jury concluded that the cow was upon the track, and the testimony points to this particular engineer, on account of the recognition by the railway company that he was the one who was to make out the accident report, and hence the one who killed the cow.

. It is fundamental that the object of pleading is to inform the opposite party of the matters which the latter will be called upon to meet upon the trial of the case. The railway company was informed in this instance that the engineer negligently failed, by appropriate warning or signals, to frighten the cow from the track, and to retard the speed of the train to permit the animal to. leave the track. Oh account of the verdict resolving the evidence more favorably to the appellee, the farthest distance from the train. to the point where the cow was standing upon the track is so considerable as to clearly show that the engineer might have had ample opportunity to have warned the cow from the track. Appellant says, however, that, if there is no allegation that he saw the cow, or could have seen the animal, the failure to warn could not be a predicate of negligence. The failure to warn, however, necessarily implies a failure to observe, and appellant, as against a general demurrer, was apprised of that fact. We do not mean apprised of the fact that a failure to observe would be an ingredient directly relied upon as a ground of recovery, but that, as an incident of the failure to warn, the latter being the gravamen of recovery, the former element, to that extent, was a constituent of the latter. We do not understand that it would be necessary, as against a general demurrer, in alleging that a failure to warn the cow from the track, as a ground of recovery, that it was necessary to specifically allege, in order to prove the failure to warn, that the agent of said railway company also failed to exercise ordinary care to observe said cow upon said track, and that the lack of the latter allegation would destroy plaintiff’s case; it may be a requisite of proof of the former, in order to prove the latter. However, in order to warn, necessarily you have to see the object in order to carry out the warning, and the defendant railway company was inferentially apprised of that fact from the pleading itself.

It is true in this case the court, in his general charge to the jury, charged the failure to see the cow, coupled with the failure to warn, as facts to be found by the jury before plaintiff could recover. Even if this would be considered as error, it is waived by appellant, for the reason that the objections to the general charge of the court, ostensibly overruled by the trial court, are not presented in this record in such manner as that this court can consider them, and, under the Acts of 33d Legislature, p. 113, the-failure to object waives the errors in the charge, at least the character of error attempted to be invoked as to the particular matter. Article 1971 says that an objection not so made and presented “shall be considered as waived,” and the logic is that, if objections which' could have been made are not made to the charge of the trial court, unless fundamentally erroneous, the litigant accepts the charge. If an objection is waived which could have been made, it means the objection is waived in the appellate court, and should not be urged in that tribunal. It means that, if the trial court was not afforded an opportunity to correct the alleged error, and conform his charge to the suggestions presented, the action of the trial court is approved.

The action of the trial court in refusing the special charge upon which an assignment of error is based is likewise not presented so that we may consider same.

Upon this record, the judgment of the trial court will have to be affirmed, and it is so ordered.


text:
    SAUNDERS v. THUT.
    (Court of Civil Appeals of Texas. Amarillo.
    March 28, 1914.)
    1. Appeal and Error (§§ 499, 500) — Record —Presentation op Matters por Review.
    Under Rev. St. 1911, art. 1971, as amended by Acts 33d Leg. c. 59, requiring the charge to be submitted to the parties for inspection, and requiring objections thereto to be presented before the charge is read to the jury, and' providing that all objections not so made and presented shall.be considered as waived, where the record does not show that objections to' the charge were presented before the charge was read, or show the court’s ruling on such objections, they will not be considered on appeal.
    [Ed. Note. — Eor other cases, see Appeal and’ Error, Cent. Dig. §§ 2295-2298; Dec. Dig. §§ 499, 500.]
    2. Appeal and Error (§ 501) — Reservation of Grounds op Review — Exceptions.
    Under Acts 33d Leg. c. 59, providing that the ruling of. the court in giving, refusing, or qualifying instructions shall be regarded as approved, unless excepted to, the refusal of special instructions would not be reviewed, where the record contained no exception to the ruling.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 2300-2305; Dec. Dig. §. 501.]
    3. Brokers (§ 82) — Actions—Evidence Admissible Under Pleadings.
    Where the petition alleged that defendant listed land with plaintiff to be leased, and listed cattle for sale, that plaintiff brought about a sale and leasing, and that he was entitled to a reasonable compensation of 25 cents per head for the sale of the cattle, and 5 cents per acre for the leasing of the land, evidence as to the usual or customary commission charged for such services was in conformity with the pleading ; the basis of recovery being upon the quantum meruit.
    [Ed. Note. — Eor other cases, see Brokers, Cent. Dig. §§ 101-103; Dec. Dig. § 82.]
    4. Appeal and Error (§ 215) — Record — Presentation of Matters for Review.
    In an action for commissions for leasing land and selling cattle, where there was evidence that plaintiff procured W. as a purchaser and lessee, though defendant claimed that the' real purchaser and lessee was B., any error in an instruction to find for plaintiff if he procured W. or both or either of them as purchaser and lessee could not be reviewed, where there was-no objection to the charge which could be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1309-1314; Dec. Dig. §■ 215.]
    5. Evidence (§ 314) — Actions—Evidence-Hearsay.
    In an action for commissions for procuring a purchaser of cattle and a lessee of land, evidence as to the negotiations between plaintiff and the purchaser and lessee was admissible, over the objection that it was hearsay, since, though not competent to show plaintiff’s authority, it was competent to show that he was the procuring cause of the sale; there being no request to limit its effect.
    [Ed. Note. — Eor other cases, see Evidence, Cent. Dig. §§ 1168-1173; Dec. Dig. § 314.]

      Appeal from Gray County Court; Siler ¡Faulkner, Judge.
    Action by Henry Thut, Jr., against George H. Saunders. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Ewing & Dial, of Miami, for appellant. Synnott •& Underwood, of Amarillo, and S. E. Boyett, of McLean, for appellee.

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

   HENDRICKS, J.

This suit was instituted by tbe appellee, Henry Tbut, Jr., against George H. Saunders, appellant, to recover tbe sum of $200 for commission, by virtue of certain agency for sale of about 350 bead of cattle at a reasonable commission of 25 cents per bead, and tbe leasing of 10 sections of grass for tbe reasonable commission of 5 cents per acre. Upon appeal from tbe justice court to tbe county court of Gray county, the trial resulted in a verdict and judgment in favor of Tbut against Saunders for $100, and interest.

Every assignment of error in appellant’s brief is either tbe presentation of a complaint of tbe action of tlie court in giving in charge to tbe jury certain paragraphs of tbe court’s main charge, or the refusal of tbe court to give to tbe jury certain special requested instructions, except tbe last assignment, which is a criticism of tbe action of tbe court in permitting certain testimony hereafter noticed by us.

There are objections in the transcript to tbe court’s charge, but this record is absolutely devoid of any action of tbe trial court upon said objections; it is not stated that be refused the same'; neither is there any preservation in tbe record as to the time ■of tbe presentation of the objections to the court’s general charge. There must be an incorporation in tbe record, in some manner, •of the fact of tbe refusal by tbe trial court •of the written objections of a litigant to the general charge, and it must be shown that tbe objections are presented to tbe trial court before tbe charge is read to the jury, for the reason that all objections not so made •and presented shall be considered as waived. Article 1971, Session Acts, 33d Leg. p. 113. Again, the ruling of the court in refusing special instructions to the jury shall be regarded as approved, unless excepted to, and, •of course, tbe exceptions to tbe action of the court should be preserved in the record. We have considered these matters in the following cases, and it is unnecessary to reiterate .the reasons here: Q., A. & P. Ry. Co. v. Galloway (decided by this court March 14, 1914) 165 S. W. 546; Mutual Life Ins. Ass’n of Donley County, Texas, v. Rhoderick (decided March 14, 1914) 164 S. W. 1067; Roberds v. Laney (decided March 21, 1914) 165 S. W. 114; McSpadden v. Yannerson, 167 S. W.-; and Southern Kan. Ry. Co. of Tex. v. Crutchfield (this day decided by this court) 165 S. W. .551.

However, regarding the case upon its merits, on account of the insistent contention in appellant’s brief that a certain character of contract was alleged, and, if any proved, it was different; and, second, that tbe evidence fails to show that the appellee was the procuring cause of the sale of the cattle and the leasing of the land.

Extracted from the record, tbe appellee pleaded orally as follows: “This is a case appealed from the justice court at Pam-pa, and tbe pleadings are oral, and the facts or tbe allegations of the plaintiff, as established, are about these: Some time in March of this year, he had a conversation with Judge Saunders, in which Judge Saunders listed with him about ten sections of land to lease and about 350 head of • cattle to be sold, and the plaintiff alleges that he brought about the sale of these cattle satisfactory to Judge Saunders, and at the same time found a man to whom Judge Saunders could lease the grass, and to whom Judge Saunders did lease tbe grass, and the plaintiff claims that he is entitled to a reasonable commission of 25 cents per head for the sale of the cattle, and 5 cents per acre for finding a man to whom the judge could lease the grass, alleging that he is entitled to the commission for these services.”

Appellee testified that the appellant listed the ten sections of land with him for the purpose of leasing the same to other parties, and about 350 head of cattle for the purpose of sale; that he informed appellee that he was engaged in that business, and testified as to his efforts with one W. W. Mars in procuring the latter as a prospective purchaser of tbe cattle and as lessee of the land. It is noted that he pleads, as an ingredient of an express contract, that Saunders listed the land and cattle with him; that he brought about the sale of the cattle and the leasing of the grass, and for which he was entitled “to a reasonable compensation of 25 cents per head for tbe sale of tbe cattle, and 5 cents per acre” for tbe leasing of the grass. He testified: “I am acquainted with the usual or customary commission charged for the sale of cattle and the leasing of land. The usual or customary price charged as commission is 25 cents per bead on cattle, and on land the commission charged is 5 per cent, on tbe dollar.” This, we understand, is in conformity with the pleading, that part of the basis of recovery being upon quantum meruit.

Appellant says that appellee did not procure the sale of the cattle and the leasing of the grass to W. W. Mars, but, if any sale and lease were made, it was either done with W. W. Mars and his son, Bert Mars, or with the latter exclusively, and that any efforts manifested by the appellee could not, legally speaking, have become an efficient cause. There is testimony by virtue of which the jury could have found that Bert Mars was the exclusive purchaser. However, from another aspect, tbe jury could have viewed the testimony mat W. W. Mars was also the exclusive purchaser; considered from that view, the evidence tending to show that the ■latter principally conducted the negotiations with Saunders, made the contract with him for the cattle, that W. W. Mars’ money made the first payment upon the cattle, and that he executed the first mortgage upon said cattle as security for the payment of the deferred consideration. Without attempting in the slightest to pass upon the credibility of these witnesses and as to who was the real purchaser of the cattle, there was sufficient evidence afforded to the jury that Bert Mars was not the real purchaser. The court did charge that, if the plaintiff procured W. W. Mars, or both, or either of them, as a purchaser of the cattle and as lessees of the land, to find in the plaintiff’s favor. Even if we should consider such a charge as error, which we are not deciding; the jury having had sufficient testimony before it to find that W. W. Mars was the purchaser, without objection to the charge which we could consider, there is a waiver of the purported error; the lower court is the proper forum, under the statute mentioned, to present and argue the question.

Appellant assigns error because the court permitted appellee to testify to his conversation with W. W. Mars relative to his efforts to sell the cattle and leasing the grass; the witness stating that he informed Mars at Amarillo that Saunders wanted to sell about 340 or 350 head of cattle, and lease 10 or 11 sections of grass, and further informed said Mars the price of the cattle and the land. No authority is presented, and appellant says that none is necessary, except the statement that it is hearsay, for the purpose of rejecting this character of testimony. We are at a loss to know how a broker would prove his case if he were unable to state what he did in attempting to procure a purchaser for the purpose of earning the fruits of his contract. If he testified he found the man as a purchaser, it would be a conclusion, and this character of ease necessarily involves, to some extent, a detail of the transaction between the agent and the prospective buyer. Associate Justice Williams said, in the 'case of Ross v. Morkowitz, 100 Tex. 436, 100 S. W. 769: “Another ruling of the trial court, of the correctness of which we had some doubt, was the admission of Kirby’s testimony to the fact that plaintiff had notified him that he and Burnett would come to the witness’ office for the purpose of making the trade. That statement of plaintiff was not admissible for the purpose of showing his authority to act for Burnett. But there was another fact which it was important for him to establish, namely, that his efforts procured the sale; and his negotiations with Kirby were admissible for that purpose. No request was made to have the court limit the evidence.” It is true in that case the testi mony of the purchaser of the bank stock as to statements made by Burnett, the broker, was involved, but it is just as much hearsay for the prospective purchaser to testify as to conversations with the broker as for the broker to testify as to conversations with the purchaser. We can see no difference in the status. While not admissible for the purpose of showing the authority to sell the subject-matter of the agency, yet it is admissible as proving the efforts in procuring the sale. In this ease, as in the one cited, there was no request to the court to limit the evidence, and we conclude the testimony is clearly admissible.

Justice Reese said, in the case of Buhn v. Eordtran, 53 Tex. Civ. App. 153, 115 S, W. 670: “There was no error in the admission in evidence of what the trustees said to appel-lee during the negotiations. The testimony tended to show the efforts being made by appellee to sell the property, and also that there was a likelihood that they could eventually be induced to buy.” Writ of error in that cause was denied by the Supreme Oourt. This court held the same thing in the cause of .Mitchell v. Crossett, 143 S. W. 966, and to the same effect are the eases of Clark v. Wilson, 41 Tex. Civ. App. 450, 91 S. W. 627; Leuschner v. Patrick (Civ. App.) 103 S. W. 664. This doctrine is thoroughly settled.

Finding no error in this record which we can consider, we affirm the judgment of the trial court