author: PLEASANTS, C. J.

text:
    LOUISIANA & TEXAS LUMBER CO. v. SOUTHERN PINE LUMBER CO. et al.
    (No. 6699.)
    (Court of Civil Appeals of Texas. Galveston.
    Oct. 29, 1914.
    Rehearing Denied Nov. 25, 1914.)
    1.Witnesses (§ 240) — Examination—Leading Questions.
    A question, asking whether witness’ husband, prior to his death, purchased or acquired by deed the interests of his brothers and sisters in the land in controversy, and, if yea, whether witness saw any such deeds, it being claimed that the deed or deeds were lost, which the witness answered in the affirmative, was not objectionable as leading, since a question will not be condemned as leading though it admits of an answer “yes” or “no,” if only one material fáct is elicited and the form of the question does not suggest the answer.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 795, 837-839, 841-845; Dec. Dig. § 240.]
    2. Evidence (§ 471)— Opinion Evidence-Opinion oe Conclusion.
    The question was not further objectionable as calling for the conclusion or opinion of the witness; her answers thereto so far as responsive being statements of fact.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2149-2185; Dec. Dig. § 471.] '
    3. Acknowledgment (§ 36) — Certificate— Subscribing Witness — Signature oe Witness-Request oe Grantob.
    Where an officer’s certificate to a deed recited that the witness who proved the deed stated that he “was present and saw the grantor sign and deliver the instrument for all the purposes and considerations contained and expressed as witness at the request of the grantor,” it was not objectionable for failure to sufficiently show that the witness signed the instrument as a witness at the grantor’s request.
    [Ed. Note. — For other cases, see Acknowledgment, Cent. Dig. §§ 181, 182, 184-198, 221-223; Dec. Dig. § 36.]
    4. Appeal and Error (§ 1050) — Rulings on Evidence — Prejudice.
    In trespass to fry title, defendant could not successfully object on appeal to the introduction of a deed in evidence, where there was nothing in the statement under the assignment of error to show that plaintiff’s title to any part of the land in controversy depended on the deed or was in any way affected thereby.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§' 1068, 1069, 4153-4157, 4166; Dec. Dig. § 1050.]
    5.Tenancy in Common (§ 55) — Rights oe Ootenant — Recovery oe Land.
    A cotenant may recover the whole property as against one showing no title.
    [Ed. Note. — For other cases, see Tenancy in Common, Cent. Dig. §§ 140-156; Dec. Dig. § 55.]
    6. Vendor and Purchaser (§ 224) — Innocent Purchaser — Administrator’s Deed.
    An administrator’s deed .purporting- to convey only whatever interest the estate might have in the land in controversy was prima facie only a quitclaim and insufficient to support a plea of innocent purchaser.
    [Ed. Note. — For other eases, see Vendor and Purchaser, Cent. Dig. §§ 469-473; Dec. Dig. § 224.]
    7. Executors and Administrators (§ 388)— Sale oe Land — Innocent Purchaser.
    A purchaser of land at an administrator’s sale, notwithstanding the form of the deed, may be an innocent purchaser if the probate proceedings and the facts attending the sale show it to have been the purpose of the administrator to sell and of the purchaser to buy the land described in the deed, and not a mere chance of title and the purchaser had no notice of any adverse claim.
    [Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 1573-1582; Dec. Dig. § 388.]
    8. Executors and Administrators (§ 148)— Sale oe Land — Title Acquired.
    Where intestate long prior to his death had conveyed the land in controversy by a deed of record, and a purchaser at a subsequent sale of the land by the intestate’s administrator knew at the time of the purchase that intestate did not own the land, no title was acquired by the sale or the administrator’s deed conveying the estate’s interest therein.
    [Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 595-601; Dec. Dig. § 148.]
    9. Executors and Administrators (§ 388)— Innocent Purchaser.
    Where an administrator’s deed only purported to convey the title of the estate, and the grantee knew when he purchased that the intestate had conveyed the land long prior to his death, the deed was sufficient to put a subsequent purchaser on notice, so that he could not acquire title as an innocent purchaser or acquire a better position than his grantor.
    [Efl. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 1573-1582; Dec. Dig. § 388.]
    10. Trespass to Try Title (§ 41) — Findings — Evidence.
    In trespass to try title, evidence held, to ' sustain a finding that the heirs of a prior owner, other than Í-I., conveyed their interests in the land to him.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 62, 63; Dec. Dig. § 41.]
    Appeal from District Court, Houston. County; John S. Prince, Judge.
    Trespass to try title by the Southern Pine Lumber Company against the Louisiana & Texas Lumber Company and others. Judgment for plaintiff, and defendant Lumber Company appeals.
    Affirmed.
    See, also, 147 S. W. 604.
    Nunn & Nunn, of Crockett, for appellant.
    Adams & Young, of Crockett, for appellees.

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   PLEASANTS, C. J.

This is an action of trespass to try title, brought by the appellee Southern Pine Lumber Company against appellant, Louisiana & Texas Lumber Company, and appellee Paul Durham, for the recovery of the W. T. English survey of 707 acres of land in Houston county. The appellant answered in the court below by general demurrer, disclaimed title as to all of the land sued for except two tracts, one of 546.9 acres and the other containing 50 acres. As to these tracts appellant pleaded not guilty, and also that it was an innocent purchaser in good faith for a valuable con- - sideration and without notice of appellee’s claim. The appellee Durham answered by general demurrer, general denial, and plea of not guilty. Upon the trial of the cause it was agreed that the title to only 160 acres, a part of the 546.9 described in appellant’s answer, was involved. The trial in the court below without a jury resulted in judgment in favor of plaintiff for the 160 acres of land in controversy.

The - evidence sustains the following conclusions of fact: The W. T. English 707-acre survey of land, of which the 160 acres in controversy is a part, was patented to Jesse Duren, assignee of said English, on September 23, 1871. By deed of date March 8, I860, Duren conveyed the 160 acres of said survey in controversy in this suit to Joseph Luce, Sr. This deed was duly recorded in Houston county in May, 1862. The deed records of said county were destroyed by fire in 1865. The deed was recorded in 1874, and the record thereof again destroyed by fire in 1882. It was again recorded in 1900. After the death of Joseph Luce, Sr., and his wife, the 160 acres was conveyed to his son, Hiram Luce, by all of the other children of the deceased Joseph Luce and wife. This conveyance has been lost or destroyed and is not of record in Houston county. On May 15, 1901, after the death of Hiram Luce, his widow and heirs conveyed the 160 acres to Dolly Shelton. By deed of date June 21, 1902, Dolly Shelton conveyed said tract of land to A. Harris & Co., and A. Harris & Co. conveyed it to plaintiff by deed of date June 14, 1905, for a consideration of $13 per acre, which was paid by plaintiff. Jesse Duren died prior to 1877, and his estate was administered in the probate court of Houston county by W. H. Cun-diff. Acting under an order of said court which directed him to sell the lands of said estate for the purpose of paying its debts, the administrator, after due notice, sold said lands on the first Tuesday in April, and J. C. Wooters became the purchaser. The report of this sale was duly made and the sale was confirmed by the court. Among the other lands purchased by Wooters and conveyed to him by the administrator’s sale was the following:

“All the interest the estate may have in and to the Wm. T. English grant, containing 707 acres of land lying and being situated in Houston county, Texas.”

The words “containing 707 acres” in the above description were interlined in the original deed. As this deed appears upon the record the interlineation is as follows: “Containing 177 acres.” The trial court finds, and the finding is not challenged by appellant, that the figures 177 are altered in the original deed after its record to 707. The trial court further finds that when Wooters purchased the lands of the Duren estate and took the deed from the administrator he had actual and constructive notice that Duren had parted with his title to the 160 acres of- land in controversy. This finding is not questioned by appellant. On December 28, 1899, the appellant by its agent, R. H. Keith, purchased from Wooters a tract of 546.9 acres of the Wm. T. English survey, paying therefor the sum of $1,367.25. The 160-acre tract in controversy was included in the 546.9 acres described in and conveyed by the deed to appellant by Wooters. At the time he made this purchase Keith had no active notice of the claim of those under whom ap-pellee holds title.

The first six assignments presented in appellant’s brief complain of the ruling of the trial court in admitting in evidence over appellant’s objections certain questions and answers contained in the depositions of Sarah Huling, who was formerly Sarah Luce, wife of Hiram Luce. The first assignment complains of the ruling of the court in not sustaining appellant’s objection to the fourteenth interrogatory and the answer of the witness thereto. This interrogatory and the answers of the witness are as follows:

“State whether or not your husband, Hiram Luce, prior to his death and subsequent to the death of his father or mother, purchased or acquired by deeds in writing, or through the partition of his father’s and mother’s estate, the interest of his brothers and sisters in and to the Joseph Luce, Sr., 160-acre survey of land made out of the W. T. English survey in this suit, and being the land conveyed by you and your children to Dolly Shelton, by deed dated May 15, 1901. If yea, then please state as to whether or not you ever saw any deed or deeds from the other children and heirs of Joseph Luce, Sr., to Sarah Luce conveying their interest in and to said 160 acres of land?
“Yes, my husband, Hiram Luce, purchased the interest of the other heirs of Joseph Luce, Si’., in and to 160 acres of the W. T. English survey, the same land that myself and the other heirs of Hiram Luce afterwards conveyed to Dolly Shelton. He paid the other heirs fifty ($50.00) dollars apiece for their interest in the land. I remember that he gave Katy Allen a horse valued at fifty ($50.00) dollars for her interest in this land. He got a deed from most of the heirs to this land and I think from all of them, but I can’t state for sure about the deed from all of them. I know he bought each heirs’ interest in the land and paid fifty ($50.00) dollars each. I know most of them made a deed conveying their interest in this land for I have seen such deed, but can’t remember whether all of them had signed it or not.”

The interrogatory was objected to on the ground that it was leading and assumed that Hiram Luce had acquired the land inquired about in one of the ways mentioned “and further assumed that it was the same land conveyed by witness and her husband to Dolly Shelton by deed of date May 15, 1901, all of which calls for the conclusions and opinion of the witness and does not call for the facts about which the witness would be competent to testify.” The ansrvers of the witness were objected to on the ground that they were not responsive to the interrogatory and that the proper predicate had not been laid for the introduction of such testimony.

The court did not err in overruling these objections. We do not think the first question contained in the interrogatory properly admits of the answer “yes” or “no”; but, if it does, only the one material fact whether or not Hiram Luce acquired by deed or partition the interest of the other heirs of his father and mother in the land mentioned in the interrogatory was elicited by the question, and the form of the question was not such as to suggest the answer desired.

The weight of authority supports the rule that a question is leading which embodies a material fact and admits of a simple affirmative or negative answer. But this rule has been modified by the decisions of our Supreme Court to the extent that a question will not be held leading because it admits of the answer “yes” or “no” if only one material fact is elicited by the question and the form of the question does not suggest the answer. Cunningham v. Neal, 49 Tex. Civ. App. 613. 109 S. W. 455; Lott v. King, 79 Tex. 292, 15 S. W. 231; Railway Co. v. Dalwigh, 92 Tex. 655, 51 S. W. 500; Railway Co.. v. Lowe, 97 S. W. 1087; Railway Co. v. Collins, 33 Tex. Civ. App. 58, 75 S. W. 816; Bryan Press Co. v. Railway Co., 110 S. W. 99.

The land inquired about was the land conveyed by the witness and the heirs of Hiram Luce to Dolly Shelton, and the interrogatory properly so described it. The question did not call for the conclusion or opinion of the witness, and her answers thereto, which were responsive to the question, were statements of fact and not expressions of opinion or conclusions. The loss of the deed and diligent and unavailing search therefor was shown by testimony of this witness, and this entitled plaintiff to prove the contents by parol evidence.

The questions presented by the second, third, fourth, fifth, and sixth assignments need not be discussed in detail. None of the testimony, the admission of which is complained of, was objectionable upon any of the grounds set out in the assignments, and each of said assignments is overruled.

The seventh assignment complains of the ruling of the court in admitting in evidence the deed from Jesse Duren to Joseph Luce over appellant’s objection that it was not properly proven for record. The deed was proven for record by a subscribing witness. The certificate of the officer recites that the witness stated:

“That he was present and saw the grantor sign and deliver said instrument for all the purposes and considerations contained and expressed as witness at the request of the grantor.”

As we understand the assignment, the objection made to the certificate is that it does not show that the witness signed the instrument as a witness at the request of the grantor. The objection was properly overruled. The statement of the witness above set out shows that he was present as a witness at the request of the grantor and saw him sign and deliver the instrument, and the name of the witness appears upon the instrument as a subscribing witness. We think the certificate of proof is in substantial compliance with the statute. The assignment is overruled.

The eighth assignment of error cannot be sustained. If it be conceded that the deed mentioned in the assignment was not admissible over the objection made by appellant, there is nothing in the statement under the assignment to show that the title of appellee to any part of the land in controversy depended upon this deed or was in any way affected thereby. It is probable that a search through the record, which we do not feel called upon to make, would disclose that the grantors in this deed were two of the heirs of Hiram Luce and as such held an interest in the land. If this is true, and their interest did not pass by the deed, they are tenants in common with appellee, and, appellant having shown no title to the land, appellee as against appellant was entitled to recover the interest of its cotenants.

We cannot agree with appellant’s contention, made under its ninth assignment of error, that the undisputed evidence sustains its plea of innocent purchaser in good faith. The deed from the administrator of Duren’s estate to Wooters, under which appellant claims, only purports to convey whatever interest the estate might have in the English survey, and is prima facie only a quitclaim deed which would not support the plea of innocent purchaser. But notwithstanding the form of the deed, a purchaser at an administrator’s sale might be an innocent purchaser if the proceedings in the probate court and the facts of the entire transaction showed that it was the purpose of the vendor to sell and the intention of the purchaser to buy the land described in the deed, and not a mere chance of title, and such purchaser had no notice of any adverse claim to the land.

The proceedings in the probate court in regard to the sale in question do not appear in the record; hut, as before stated, the trial court finds that Wooters knew at the time he purchased that the estate did not own the 160 acres in question, and the undisputed evidence shows that Duren had conveyed the 160 acres to Luce long prior to his death, and this deed was of record in Houston county at the time of the administrator’s sale to Wooters. The estate having no title to the 160 acres of land in controversy at the time of the sale of its interest in the survey to Wooters, and the deed only conveying the interest in the survey owned by the estate, Wooters, regardless of the question of notice, acquired no title to the 160 acres by the deed from the administrator. The character of the deed was such that any purchaser from Wooters was put upon notice that he only acquired title to whatever interest in the property the estate owned at the time of the sale, and such purchaser could not under this deed acquire title as an innocent purchaser in good faith to land in said survey not owned by the estate at the time of the sale to Wooters. A purchaser from one holding under a deed of this kind is in no better position than the vendee in such deed. Harrison v. Boring, 44 Tex. 255; White & Newman v. Frank, 91 Tex. 66, 40 S. W. 962; Hitchler v. Scanlan, 15 Tex. Civ. App. 40, 39 S. W. 633.

The remaining assignments complain of the judgment on. the ground that the evidence is insufficient to sustain the finding of the court that the heirs of Joseph Luce, Sr., other than Hiram Luce, conveyed their interest in the land to said Hiram. Mrs. Hul-ing, the surviving wife of Hiram Luce, testified positively that Hiram Luce purchased the interest of the other heirs in the land and received a deed from them therefor; that she saw the deed and had it in her possession; and that she had lost it or it had been unintentionally destroyed with other papers of her deceased husband. Her testimony as to the loss of the deed and her search therefor was amply sufficient to admit parol proof of its existence and its contents. Her statement that such a deed was in fact executed and delivered is uncontradicted and fully justified the finding of the court upon this issue. If any of the heirs of Joseph Luce failed to execute the deed, they are tenants in common with appellee, and the latter was entitled, as against appellant, to recover all of the land.

We are of the opinion that the judgment of the court below should be affirmed, and it has been so ordered

Affirmed.


source: Caselaw Access Project

author: WILLSON, O. J.

license: Public Domain

text:
    PARIS & G. N. R. CO. v. LACKEY.
    (No. 1341.)
    (Court of Civil Appeals of Texas. Texarkana.
    Oct. 29, 1914.)
    1. Master and Servant (§ 112) — Injury to Servant — Negligence—Proximate Cause.
    Where a railroad employé, struck by an engine moving on a track in railroad yards, was not injured because of any necessity, in the discharge of his duty, to assume the position he did with reference to an adjacent track, the fact of the nearness of the two tracks could not be relied on as negligence, for the negligence, if any, in constructing the tracks close together was not a proximate cause.
    [Ed. Note. — For other cases, see Blaster and Servant, Cent. Dig. §§ 212, 213, 218-223; Dec. Dig. § 112.]
    2. Evidence (§ 244) — Declaration oe Employes — Admissibility.
    Declarations made by an engineer the day following his striking plaintiff with an engine that he might have done more than he did to avoid the accident were inadmissible as against their common employer.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 916-936; Dec. Dig. § 244.]
    3. Master and Servant (§ 248) — Injury to Servant — Discovered Peril.
    To support a charge of actionable negligence of a railroad company on the doctrine of discovered peril, the employé injured by being struck by an engine must show facts authorizing a finding that the men in charge of the engine realized that the employé was in danger and neglected to use available means to avoid injuring him.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 801-804; Dec. Dig. § 248.]
    4. Evidence (§ 586) — Negative Evidence-Weight.
    • Testimony of witnesses that they did not hear the bell on an engine has probative force, provided they were so situated that in the ordinary course of events they would have heard the bell had it been rung.
    FEd. Note. — For other cases, see Evidence, Cent. Dig. §§ 2432-2435; Dec. Dig. §• 586.]
    5. Trial (§ 139) — Evidence—Question foe Juey.
    Where there was positive and negative testimony on the issue whether an engine bell was rung, the question is for the jury.
    [Ed. Note. — For other cases, see Trial, Cent. ■Dig. §§ 332, 333, 338-341, 365; Dec. Dig. § 139.]
    Error from District Court, Lamar County; A. P. Dehoney, Judge.
    Action by J. T. Lackey against the Paris & Great Northern Railroad Company. There was a judgment for plaintiff, and defendant brings error.
    Reversed and remanded for new trial.
    Tracks 1 and 2 in plaintiff in error’s (hereinafter referred to as defendant) yards at Paris ran north and south. The distance between the west rail of track 1 and the east rail of track 2 was 7 feet and 7 inches. Cars set opposite, or passing, each other on the tracks would be 29 or 30 inches apart. In July, 1911, defendant in error (hereinafter referred to as plaintiff) was employed by defendant, and had been during the preceding seven months, as a general “roustabout.” He helped in defendant’s blacksmith shop, and repaired and helped to ice and sweep out passenger cars used by defendant in its business as an interstate carrier. On the morning of July 23, 1911, plaintiff had assisted in cleaning and icing coaches set on track 1, about ready to be sent out in one ■of defendant’s trains, and had walked north between the two tracks, by the side of tBe ears standing on track 1, and, while in the act of picking up certain tools lying between the tracks, was struck by an engine moving north on track 1 at a speed of 3 or 4 miles an hour. He claimed he was injured as a result of the accident, and that defendant was liable to him for damages he thereby suffered, because of negligence on its part, first, in constructing tracks 1 and 2 so close together; second, in failing, through its em-ployés in charge of the engine, to use due care to avoid injury to him after said em-ployés discovered him to be in a place of danger from the engine; - and, third, in failing to warn him of the approach of the engine to the point where he was engaged in picking up the tools. In the charge of the court each of these grounds of negligence was submitted to the jury, and they were authorized to find against defendant on each or all of them. A general verdict in plaintiff’s favor having been returned, and judgment entered accordingly, defendant prosecuted this appeal.
    Andrews, Ball & Streetman, of Ft. Worth, and Wright & Patrick, of Paris, for plaintiff in error. Love & Hutchison, of Paris, for defendant in error.

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

   WILLSON, O. J.

(after stating the facts as above). In the view we take of the ca.se as made by the testimony in. the record, it is believed the appeal can be sufficiently disposed of by briefly stating the conclusions reached, without specific reference to the assignments of error.

1. The trial court erred in submitting to the jury an issue as to whether or not defendant was guilty of negligence in constructing tracks 1 and 2 so close together. In reaching this conclusion, we have not thought it necessary to first determine whether, on the facts shown by the testimony, negligence of which plaintiff had a right to complain could have been predicated on the nearness of tracks 1 and 2 to each other or not, for it is clear, if defendant was guilty of negligence in constructing the tracks so close together, its negligence in that respect was not a proximate cause of the injury to plaintiff. If he was struck by the engine, it was because of -the position he occupied with reference to track 2, and it did not appear that it" was necessary, in the discharge of his duty, for him to assume that position because of the proximity of track 1, or that the nearness of that track to track 2 had anything to do with his assuming that position. In the position he occupied he would have been struck as he was had tracks 1 and 2 been 50 instead of 7 and a fraction feet apart.

2. The trial court further erred in submitting to the jury an issue as to “discovered peril.” Unless the testimony of the witness Williams as to declarations made to him by the engineer the next day, or later, after the accident, tending to show that he might have done more than he did to avoid it, should be considered, there was nothing in the evidence heard to support a finding that plaintiff was in danger from the engine until he stooped to pick up the tools, or, if he was, that the employés in charge of the engine realized it, nor to support a finding that the perilous position occupied by plaintiff at the time he stooped to pick up the tools was discovered by said employés in time to have avoided the accident. It is clear that defendant was not bound by the declarations in question, if made by the engineer, as testified to by Williams, and therefore that same should not be considered in passing on the sufficiency of the evidence to support the finding in question. Henry v. Phillips, 105 Tex. 459, 151 S. W. 537. To support a charge of negligence on the part of defendant on the doctrine of “discovered peril,” it was indispensable that there should be testimony authorizing a finding that the employés in charge of the engine realized that plaintiff was in danger therefrom, and neglected to resort to means they should have resorted to, in the exercise of due care, to avoid striking him. Railway Co. v. Breadow, 90 Tex. 26, 36 S. W. 410; Railway Co. v. O’Donnell, 99 Tex. 636, 92 S. W. 409; Railway Co. v. Hope, 149 S. W. 1077.

3. It is not believed that defendant’s contention that the testimony was not sufficient to support a finding that it was guilty of negligence in failing to warn plaintiff of the approach of the engine should be sustained. The contention is based on the fact that its witnesses swore that the bell was ringing, while the testimony of plaintiff, as it construes it, and of his witness Windom was to the effect merely that they did not hear the bell ringing. The argument is that, in. face of positive testimony that the bell was ringing, negative testimony to the contrary was without probative force. The contention seems to be supported by Railway Co. v. Kutac, 76 Tex. 473, 13 S. W. 327, which was the authority relied upon for a similar ruling made in Railway Co. v. Anderson, 126 S. W. 928, cited by defendant. We do not agree that those cases correctly interpret the law controlling the question, an(l therefore we are unwilling to follow them. That the testimony of witnesses that they did not hear the bell was admissible to prove it was not rung cannot be doubted. “Courts,” said Professor Wigmore, “have .often been asked to exclude testimony based on what may be called negative knowledge; i. e., testimony that a fact did not occur, founded on the ■witness’ failure to hear or see a fact which he would supposedly have heard or seen if it had' occurred. But there is no inherent weakness in this kind of knowledge. It rests on the same data of the senses. It may even sometimes be stronger than affirmative impressions. The only requirement is that the witness should have been so situated that in the ordinary course of events he would have heard or seen the fact had it occurred.” And he adds: “This sort of testimony, on the authorities stated, is constantly received ■ — particularly in proof of the failure to give railroad signals,” etc. 1 Wig. on Ev. § 664. And see Railway Co. v. Hansford, 125 Ala. 349, 28 South. 50, 82 Am. St. Rep. 241; Walsh v. Railway Co., 171 Mass. 52, 50 N. E. 453. Such testimony being admissible as proof, in a case like this one, that the bell was not rung, whether it was sufficient proof of the fact or not should be left to the determination of the jury. “When evidential facts are once admitted by the judge,” said Professor Wigmore in another volume of the same work, “their individual and total weight or probative value is for the juryj” 4 Wig. on Ev. § 2551. Had there been no testimony to the contrary, we are sure defendant would not question the sufficiency of the testimony of witnesses, showing they were in a position to hear and did not hear the bell ring, to prove the fact that it was not rung. If it would not question its sufficiency in that event, then logically it should not because of the testimony to the contrary, for the jury had a right, if they chose to do so, to wholly disregard the testimony of the witnesses to the effect that .the bell was rung.

It follows, from what has been said, we are of the opinion that, on the testimony in the record, negligence, if any, on the part of defendant could be predicated alone on its failure, as charged, to warn plaintiff of the. approach of the engine. Therefore the issue as to liability on the part of defendant or not, made by that testimony, it seems to us was determinable by the answer the jury might make to the question as to whether it was guilty of negligence in the respect stated or not, and if answered in the affirmative, the answer they might make to the question as to whether plaintiff was guilty of contributory negligence or not.

The judgment is reversed, and the cause is remanded for a new trial.


author: McMEANS, J.

text:
    HOUSTON CHRONICLE PUB. CO. v. TIERNAN.
    (No. 6730.)
    (Court of Civil Appeals of Texas. Galveston.
    Dec. 1, 1914.)
    1. Evidence (§ 106) — Relevancy— Character.
    Plaintiff, in an action for libel, may prove good character, if the publication of which he complains is an attack on his character, or such an attack is made in defendant’s pleading, or the nature of the action involves his character; and .where defendant’s published article charges plaintiff and his wife with malpractice, barratry, and extortion, and that they would be called to defend disbarment proceedings, and indirectly, charged them with being criminals, and defendant, in his answer, alleged that the charges were true, testimony of plaintiff that he had held several offices in city named, and that up to the time of the publication he and his wife were of good character as lawyers and persons, was admissible.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 177-187; Dec. Dig. § 106.]
    2. Witnesses (§ 350) — Characteb—Admissi-bility of Evidence.
    It is improper to attempt to impeach a witness by asking him on cross-examination if he had been arrested in a city named on a charge of misdemeanor theft.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1140-1149; Dec. Dig. § 350.]
    3. Appeal and Ekrob (§ 1048) — Harmless Eeboe — Admission oe Evidence.
    Error in allowing witness to be improperly cross-examined as to his character held not harmless error, where, if the witness’ testimony had been believed by the jury, plaintiff’s cause of action would have been partially defeated, and the rendition of a large verdict indicates that the jury did not believe the witness’ testimony.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4140-4145, 4151, 4158-4160; Dec. Dig. § 1048.]
    4. Libel and Slander (§ 42) — Privileged Publication.
    Rev. St. 1911, art. 5597, §§ 3, 4, make the impartial account of public meetings, and the reasonable comment on the official acts of public officers, and the other matters of public concern published for general information, privileged. Held, that an account of disbarment proceedings, in which defendant stated what the evidence which had not been made public would show, are not privileged.
    [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 127-129; Dec. Dig.. § 42.]
    Appeal from District Court, Liberty County; J. Llewellyn, Judge.
    Action by R. H. Tiernan against the Houston Chronicle Publishing Company. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    Hunt, Myer & Teagle, of Houston, for appellant. Stevens & Stevens, of Houston, for appellee.

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

   McMEANS, J.

R. H. Tiernan brought this suit against the Houston Chronicle Publishing Company for damages, alleging that said company had published in its newspaper, known as the Houston Chronicle, which has a large circulation, certain libelous statements of and concerning plaintiff, R. H. Tiernan, and his wife, Alice S. Tiernan. The petition contained the usual averments of good character and reputation of the plaintiff and his wife, and alleged that they were engaged, at the time of the publication, in the practice of the law in the city of Houston. Pie further alleged that, on the dates hereinafter stated, the defendant published the following articles of and concerning plaintiff and his wife, which were alleged to be untrue, libelous, and defamatory, viz.:

That on October 5, 1912, it published the following:

“Tiernans, husband and wife., are to face the local bar. Charges of malpractice filed and general denial made. Mrs. Tiernan one of the first women lawyers in Texas. Charges of malpractice were pleaded Saturday before the Harris County Bar Association against R. H. and Alice Tiernan, members of the Houston bar. The complaint against Mr. and Mrs. Tiernan is signed by Clarence Kendall, assistant prosecuting attorney, and by attorney R. V. Solomon. It is as follows: ‘October 5, 1912. Judge A. E. Amerman, President Harris County Bar Association: We, the undersigned, are in possession of sufficient evidence of malpractice on the part of R. H. and Alice S. Tiernan which we think' would disbar them from the further practice of the high profession of which- we are members, and ask that you, as president of the Harris county bar association, call a meeting of same at once to consider the evidence we have, and if sufficient, to institute disbarment proceedings.’ The evidence has not been made public, but it is said to consist of affidavits and will charge that Mr. and Mrs. Tiernan have solicited practice at both the city and county jails and have extorted money from clients. It will also be charged that they have received pay for services which they have not performed.”

The petition further alleged that on the 9th day of October, 1912, the defendant published the following:

“Tiernan case with committee. Whether or not R. H. and Alice S. Tiernan, lawyers of Houston, will be called upon to defend their right to practice law at Houston will be decided by a committee of attorneys. More than fifty lawyers attended the meeting in the county court room to hear the evidence against the Tiernans. Mr. Kendall read the affidavits that have been collected from persons who have had professional dealings with the Tiernans. He urged that disbarment proceedings be instituted.”

Plaintiff further alleged that on the 5th day of November, 1912, the defendant also printed and published in its said newspaper the following article:

“Bar association committee divided on barrat-ry charge. Majority report against Mrs. Tier-nan is adopted, while minority questions jurisdiction of association. Mrs. Alice S. Tiernan, one of the first women in the South to be admitted to the bar, must stand trial on the charge of barratry. Her husband, R. H. Tiernan, will not be placed on trial on the initiative of the bar association, according to the report, because the direct evidence against him was upon immaterial, irrelevant, and collateral facts. Mrs. Tiernan, however, must answer the charge of barratry preferred by the district attorney. The action was taken at a meeting of the Harris County Bar Association last night, at-which meeting it was the unanimous sentiment that the local bar should be purged of all members found guilty of barratry or unethical conduct. ‘A majority of your committee appointed to investigate certain charges on the part of R. H. and'Alice S. Tiernan make the following report: Several affidavits and some oral statements were made to us, but none of them, with the exception hereafter stated, was direct evidence, but as a rule was hearsay upon any material fact, and if we had any direct evidence it was upon immaterial and irrelevant and collateral facts. Mrs. H. A. Clark, wife of H. A. Clark, and Percy Antill made statements from their own knowledge which, if true, shows a clear case of barratry against Alice S. Tiernan, but not against R. H. Tiernan.’ The majority report was adopted by the association and the president, A. E. Amerman, was empowered to make a committee to file the affidavits embodying the charges against the Tiernans and to lend whatever assistance is needed by the district attorney ; and likewise a committee to institute disbarment proceedings in the district court. ‘Warning to lawyers. As you will see it is a criminal offense if an attorney at law shall seek to obtain employment in any suit or case at law or in equity to prosecute or defend the same by means of personal solicitation of such employment, or by procuring another to solicit for him employment in such cases. And the charges which were investigated by your committee were that the attorneys at law named had solicited employment. We are calling attention to this statute so that the Harris County Bar Association will put people on notice that any lawyer who solicits employment of does any of the other acts prohibited by the above-quoted article of the Penal Code is a violator of the law himself, and is a criminal, and therefore any one who employs him, knowing that the lawyer is violating the law, must understand that when he employs a lawyer under such circumstances that he (the culprit) is employing a law breaker and criminal to represent him in his business.’ ”

Certain other allegations with respect to-other alleged libelous publications were stricken out upon exceptions of defendant, and these allegations have not been set out in this statement.

The petition then alleged that all of the charges set forth in said publication were false, and that said false and opprobrious charges and insinuations had discredited the-plaintiff and his wife before the public and injured them in their profession, and had caused them to suffer great humiliation, injury to their law practice, good name, credit, and reputation, and prayed for $25,000 as actual damages and a like sum as exemplary damages.

The defendant answered by general denial, and specially pleaded that the publications complained of were a fair, true, and impartial report of the proceedings of a judicial nature in a court of record, and were therefore privileged matters. It further pleaded that .the matters and things which it published, as charged by the plaintiff, were a true, fair, and correct report of the proceedings instituted against plaintiff and his wife before the Harris County Bar Association; that the plaintiff and his wife, as attorneys, were officers of the various courts of Harris county, and that their demeanor, as attorneys at law, was subject to the supervision and regulations of said courts, and that all matters and things set out in said publications were true; that the plaintiff and his wife had solicited legal employment; and that they had obtained money from clients for which they had given no services, among others from one A. Rindkoff.

The case was tried before a jury and resulted in a verdict and judgment for plaintiff for $15,000, from which the defendant has appealed.

The plaintiff was permitted to testify, over the objection of defendant, that many years ago he had held several offices in Galveston, and that:

“Up to the time of the publication complained of, my wife and I were reputed of good name and character and reputation. We were of good reputation as lawyers and persons.”

Appellant, by its first assignment of error, complains that the court committed prejudicial error against it by admitting this testimony. The contention advanced by the proposition under this assignment is that:

“In an action for libel, a plaintiff is not permitted to introduce evidence of his good character and general reputation, and the fact that he has been an office holder, unless his reputation has been first attacked by the defendant.”

Subject to certain explanations, we can readily agree with this contention. We do not understand that the attack by the defendant upon the character or general reputation of the plaintiff, in order to admit such proof as here complained of, must be made through witnesses placed upon the stand at the trial. It is enough that the publication against which the defendant is called to answer is itself such an attack, or that such an attack is made by the defendant’s pleadings, or that the nature of the action involves the general character of a party or goes directly to affect it. Houston Electric Co. v. Faroux, 125 S. W. 924, and authorities cited; Nettles v. Somervell, 6 Tex. Civ. App. 627, 25 S. W. 658; Timmony v. Burns, 42 S. W. 134; King v. Sassaman, 64 S. W. 937.

The publications above set out in effect charged the plaintiff and his wife with malpractice, with barratry and extortion. They also charged plaintiff and his wife would be called upon to defend disbarment proceedings because of their unprofessional dealings with their clients. It was stated that Alice S. Tiernan was guilty of bar-ratry, which offense was defined, and, under the caption of “warning to lawyers,” the people were put upon notice that any lawyer who' solicited employment or was guilty of other acts prohibited by the law denouncing barratry is a violator of the law and a criminal, and thus indirectly charged that plaintiff and his wife were criminals and no better than the violators of the law who employed them. Appellant, in its answer, alleged that all these charges were true. We think that not only the charges contained in the publications, but the allegations that they were true, involved the general character of the plaintiff and his wife and rendered the evidence complained of admissible.

One of the charges contained in the publications was that plaintiff and his wife received money from clients for services they never thereafter performed. The defendant in its answer averred the truth of this statement, and specifically alleged that plaintiff and his wife “had obtained money from clients for which they had received no services, among others, one A. Rindkoff.” On this material issue the witness Rindkoff was placed on the stand and testified: That he employed plaintiff, R. H. Tiernan, to bring suit in his behalf to recover an indebtedness of $10.40 due him, and paid $5 at the time for his services in the matter. That said plaintiff told witness to call again the following week, and that he did so, and was then told by plaintiff he wanted $4 more to deposit as security for costs, and that witness gave him this additional sum. That after three or four weeks had passed, and he had heard nothing from the plaintiff, he called at his office, and that the lady in the office (Mrs. Tiernan) showed him on the calendar that the case would be tried on the 10th of the following month. That he returned to plaintiff’s office on’ that date, and the lady was not there, but that Mr. Tiernan was, and told him it was a mistake, and that the case would be tried the next week, on Monday, about 9 o’clock. That he returned on the day and at the hour indicated, and that the lady told him the defendant’s lawyer was sick and to come on Monday of the next week, when he did, and was then told by plaintiff to come on Monday of the following week, and when he did so was told the judge was taking his vacation, and that plaintiff would let him know when the judge returned. That after two months had passed, and he had heard nothing further from plaintiff, he went again to see about it, and that plaintiff told him he had lost the papers. That he went to the justice court, and upon inquiry learned that the suit never had been filed, and he then asked plaintiff which court the case was filed in, and that plaintiff told him he did not remember. That he then demanded of plaintiff the money he had paid him, and plaintiff said he did not have it “this week, and nest week I will bring it down to your place,” but that witness told plaintiff he would call for it, and plaintiff told him to call the following Tuesday, which he did, but was then told by plaintiff that he had so many bills to pay he could not pay witness then, but would pay him the following week, but that he never did pay him either the $5 paid by him as a fee or the $4 advanced for costs.

After the witness had thus testified, he was asked on eross-esamination by plaintiff’s attorney if it was not a fact that he (the witness) had been arrested in the city of Houston on a charge of misdemeanor theft, to which the witness answered in the affirmative. The question was objected to on the ground that the testimony was inadmissible for the purpose of impeachment, and that it was not a proper method of impeaching the witness, which objection was overruled and the answer admitted, to which action defendant seasonably preserved a bill of exceptions and presents the questioii for our determination by its second assignment of error. We are of the opinion that the court erred in admitting the testimony over the objection urged. Railway v. Creason, 101 Tex. 335, 107 S. W. 527; Railway v. Roberts, 144 S. W. 691; McDonald v. Humphries, 146' S. W. 712.

Whether the error is such as to require a reversal depends upon whether it was reasonably calculated to cause and probably did cause the rendition of an improper judgment either upon the question of liability or upon the amount of the verdict. Appellee contends that the error is harmless, for the reason that the plaintiff Tiernan admitted in his testimony that he did receive the sums from Rindkoff and that he failed to render the service for which he was employed. We find from the statement of facts that he did make such admission. He testified in substance: That when Rindkoff gave him the employment and paid him the sums of money testified to by Rindkoff, $5 of which he received as a fee and $4 to be deposited as security for costs, he made a memorandum relating to the case and put it in a drawer of his desk, intending to give it proper attention, but that he thereafter forgot all about it, and that, when Rindkoff called at his office several months later to inquire about the case, he did not remember anything about it, and had forgotten Rindkoff, a.nd had to ask his name. That he repaid Rindkoff the $5 fee, and later went to the latter’s place of business and tendered him the other sum, but that Rindkoff told him he wanted $25, and that if he (plaintiff) did not pay him that sum he would have him disbarred. That he (plaintiff) declined to pay the amount demanded, and that Rindkoff refused to accept the $4.

The charge made by the publications that plaintiff and his wife had received pay for services which they had not performed carried with it more than a charge of simple neglect to render a service for which compensation had been made, but that the act was opprobrious and involved turpitude. It was seemingly so understood by defendant, and the general charge was reiterated in its answer, and the transaction between plaintiff and Rindkoff was specially instanced as one of the opprobrious acts of this nature of which the plaintiff had been guilty. If Rind-koff’s testimony was true, the charge was fully sustained, because no one reading his testimony could conclude therefrom that plaintiff’s failure to discharge the service for which he was employed was the .result of mere neglect or forgetfulness. The only admission by plaintiff was that he received the money but failed to perform the service, and he explains his conduct in this regard by saying that he forgot it. He contradicts Rindkoff as to the repayment of the $5, and explains his failure to pay the other sum by saying that Rindkoff demanded $25 and threatened to have him disbarred if he did not pay it. If Rindkoff’s testimony was believed by the jury, then so much of plaintiff’s cause of action as was based on the charge of his having received pay for services which he willfully failed to perform was defeated, and no recovery therefor could be sustained. If the jury did not believe Rindkoff, then they had the right to return a verdict against defendant for such sum as they reasonably believed, from the testimony, the plaintiff had been damaged by the publication of such a charge. In view of the large verdict which was rendered for plaintiff, we think it is reasonably probable that the jury discredited Rindkoff’s testimony and allowed damages for the publication of this charge, which they could not have done, had his testimony been believed to be true. In these circumstances, we think the error in admitting the testimony objected to was calculated to cause and probably did cause the rendition of an improper judgment, and that for such error the.judgment must be reversed.

Under its fifth and sixth assignments of error, appellant advances the proposition that the publications complained of were privileged under sections 3 and 4 of article 5597 of the Revised Statutes of 1911, which defines libel, and by said assignments complains of the refusal of the court to give its special charges 4 and 5, which were intended to so instruct the jury. The sections referred to, defining what matters shall be privileged, are as follows:

“(3) A fair, true and impartial account of public meetings, organized and conducted for public purposes only..
“(4) A reasonable and fair comment or criticism of the official acts of public officials and of other matters of public concern published for general information.”

Without entering into an extended discussion of the questions presented by the assignments, it is our opinion that the publications do not fall within either of the exceptions defining what matters are to be deemed privileged. Belo v. Wren, 63 Tex. 724; Knapp & Co. v. Campbell, 14 Tex. Civ. App. 199, 36 S. W. 765. Aside from the report of the bar proceedings, the publications contained statements which by no reasonable construction can it be said were other than statements of its own, viz.:

“The evidence collected has not been made public, but is said to consist of affidavits and will charge that Mr. and Mrs. Tiernan have solicited practice at both the city and county jails and have extorted money from clients. Charges of extorting money from ignorant immigrants were filed several weeks ago with the authorities at Washington by M. Arthur Kuykendall, the local immigration inspector, against Mr. and Mrs. Tiernan.”

The assignments are overruled.

The only other assignments presented by appellant complain of the size of the verdict and of the failure of the court to grant a new trial on account of newly discovered evidence. As the judgment must be reversed, it would serve no useful purpose to discuss either of these assignments.

For the error indicated the judgment of the court below. is reversed, and the cause remanded.

Reversed and remanded.


author: PLEASANTS, O. J.

text:
    KIRBY LUMBER CO. v. HAMILTON.
    (No. 6692.)
    (Court of Civil Appeals of Texas. Galveston.
    Oct. 22, 1914.
    Rehearing Denied Dec. 10, 1914.)
    1. Master and Servant (§ 116) — Injuries to Servant — Safe Place to Work.
    Where defendant lumber company maintained an unrailed platform 16 or 18 feet high, on which its employes were required to move heavy timbers, and plaintiff was injured by being knocked off the platform while so engaged, defendant failed to provide plaintiff with a safe place to work in omitting to provide the platform with a guard rail.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 207; Dec. Dig. § 116.]
    2. Master and Servant (§ 129) — Injuries to Servani>-Saee Place to Work — Absence of Guard Rails.
    Where plaintiff, an employé of a lumber company, was knocked from a high platform and injured while assisting a fellow employé in moving heavy timbers on the platform, which was not equipped with a guard rail, defendant could have reasonably anticipated that the absence of a guard rail would result in injury to employés required to work under such circumstances, it only being necessary, to make defendant’s negligence in failing to provide such rail the proximate cause of plaintiff’s injury, that it could be found that injury to some person put to work on the platform might reasonably be anticipated as the result of the absence of the rail, and not that the precise accident that happened or that injuries would occur in the precise manner in which they did should have been reasonably anticipated.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 257-263; Dec. Dig. § 129.]
    3.Master and Servant (§ 201) — Injuries to Servant — Negligence — Safe Place — Fellow Servant — Concurrent Negligence.
    Where an employer’s negligence in failing to provide an employé with a safe place to work was the proximate cause of the employé’s injury, the employer’s liability was not affected by the fact that the injury was the result of the employer’s negligence, combined with the concurrent negligence of a fellow employé.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 515-534; Dec. Dig. § 201.]
    4. Master and Servant (§ 208) — Injuries to Servant — Assumed Risk.
    Where plaintiff, a minor employed at defendant’s mill, was ordered to assist a negro in moving heavy pieces of lumber on a platform 16 feet from the ground, which was unguarded by a rail, without warning, the fact that plaintiff knew that the platform was a considerable distance from the ground was not sufficient to charge him with assuming the risk of working thereon without protection.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 551; Dec. Dig. § 208.]
    5. Master and Servant (§ 289) — Injuries to Servant — Contributory Negligence-Question for Jury.
    In an action for injuries to an employé by being thrown from an unguardad elevated platform in the course of his employment, whether he was guilty of contributory negligence held for the jury.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1089, 1090, 1092-1132; Dec. Dig. § 289.]
    6. Damages (§ 132) — Excessiveness — Personal Injury.
    Plaintiff, 19 years of age and earning $1.50 a day, while assisting a fellow employé in moving certain heavy timbers on an unguarded elevated platform, was thrown to the ground, breaking his right thigh. He was in bed about three months, and suffered and still continued to suffer great physical pain, and at the trial testified that his leg hurt him to such an extent in bad weather that he could not work at all. The bones united, but his right leg was 1% inches shorter than his left, leaving him a permanent cripple. Held, that-a verdict allowing him $8,-500 from which he remitted $412, was not so excessive as to indicate passion and prejudice of the jury.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 372-385, 396; Dec. Dig. § 132.]
    Appeal from District Court, Hardin County; L. B. Hightower, Judge.
    Action by Reese Hamilton, by his next friend, against the Kirby Lumber Company. Judgment for plaintiff, and defendant appeals.
    Reformed and affirmed.
    Andrews, Streetman, Burns & Logue, of Houston (John G. Logue and W. L. Cook, both of Houston, of counsel), for appellant.
    Blain & Howth, M. G. Adams and Ralph Durham, all of Beaumont, for appellee.

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

   PLEASANTS, O. J.

This suit was brought

by appellee against appellant to recover damages for personal injuries alleged to have been caused by the negligence of appellant. Several grounds of negligence were pleaded, but the only question of negligence submitted to the jury was whether defendant had used reasonable care to furnish plaintiff with a safe place in which to work. Defendant answered by denying the several allegations of negligence contained in the petition, and specially pleaded that the place referred to in plaintiff’s petition was constructed and arranged in the usual and customary manner of places in which the work required of plaintiff was usually performed. It further pleaded that defendant was under no obligation to warn plaintiff of any danger that might attend the performance of his work in such place, but that plaintiff was warned of such danger. Assumed risk and contributory negligence on the part of plaintiff were also pleaded by the defendant. The evidence shows that at the time of the accident in which plaintiff received his injuries he was employed by the appellant and was engaged in moving heavy pieces of lumber, which were piled upon an elevated platform or scaffold at appellant’s sawmill. This platform was 16 or 18 feet high, and at the place where plaintiff was put to work there was no railing around the edge of the platform. Plaintiff, who was a minor about 19 years old and weighed only 95 pounds, was directed by Mr. Miller, a vice principal of appellant, to go upon this platform and assist a negro employé of appellant in placing the lumber thereon on a skid by means of which it was slided onto trucks. In handling a piece of lumber 32 feet long, ■ 16 inches wide, and 3 inches thick, plaintiff was knocked over the edge of the platform, and fell to the ground, and thereby received the injuries for which this suit was brought.

Plaintiff testified:

“At the time of the accident I had not noticed the height of the platform, though I did notice it afterwards. I -never noticed it before. I noticed it after I got up from my injuries caused by the fall. The platform was between 16 and 18 feet from the ground. The work I was doing required me to be about 3 feet from the edge of the platform. There were no rails around the platform to guard or to keep people ■from falling off where we were working along there. Lumber was stacked all around the edge of the platform in the neighborhood of where we were working. They pulled this lumber out to the edge of the platform on trucks; they did not have any live rollers there. * * * While we were doing that work I got knocked off the platform. At the time it happened the negro and I were handling the timber, and the negro gave it a quick jerk, and pulled it around, and knocked me off. He jerked one end of the timber, and the timber was suspended in the center on a skid, and he gave a quick jerk on his end, which swung my end around, and threw me off. Yes, it knocked me off, and I fell to the ground from the top of the timber deck, a distance of from 16 to 18 feet. I did not know that the pisoe where I was at work was a dangerous place, and nobody explained the danger to me, and nobody showed me how to avoid the dangers. I was not strong enough to do that work. The foreman told me to go ahead that day, and he would put me back to my old job to-morrow; that is what he said to me when I told him I was not able to do that work. What I said to him about my ability to work, that is, about having been sick, I told him I was not able to do the work, it was too heavy for _ me, and he told me to go ahead that day. I did tell him about being sick, and about having been sick, and I was sick most of the time up to that time. I did tell him the work was too heavy for me. Then he told me to go ahead, and it would be all right that day, that he would put me back to my old job the next day. He said I could do the work that day. * * *
“Going back to the time of the accident, it happened this way: I was on one side of a piece of lumber, shoving it; I was not strong enough, and had to go back behind it and shove it. The negro at the other end gave it a quick jerk and threw me off. Bly back was to the edge of the dollyway where I fell off. * * * I was fixing to push it when the accident occurred. The negro gave the piece a quick jerk and slipped me off. If I had been strong enough to pull that plank without getting behind it and shoving it, this would have aided me on that occasion, and prevented the accident. I did get behind it and attempt to shove it, and this man slipped me off. I do not know the name of the negro; he was a transient negro, just come in there. I did not know anything about him.”

Eugene Hamilton, plaintiff’s brother, testified as follows:

“I was present on the occasion when Mr. Miller told my brother to go over and help that negro load the timber. 1-Ie did not give him any warning about the danger and how to avoid it. When Mr. Miller told my brother to go over there and help get this timber out, my brother told him he. could not handle the timber, and Mr. Miller said it would be all right to work the balance of that evening, it was only a very short time to quitting time, and he told him it would not hurt him to do it just that evening. * * * The way that negro did his work he just jerked things around in a violent and rough manner. My brother was very small. I had not noticed that negro at all up to that mornihg. I had not noticed him before that morning. * * * I saw my brother knocked off of the platform. The platform did not have any guard rails or any other safety appliances or devices.” ■

We cannot agree with appellant in the contention that the evidence before set out is insufficient to sustain the finding of the jury that appellant was negligent in not providing plaintiff a safe place'in which to work. It certainly cannot be held as a matter of law that a platform 16 or 18 feet high and without any guard rail around its edge is a safe place on which to handle pieces of lumber of such size as to require two persons to move them and it is necessary for the persons so engaged to work near the unguarded edge of the platform. There is nothing in this evidence tending to show that it was impractical to have a guard rail around the platform, and it is manifest that a rail in such place would afford protection to workmen who were required to work near the edge and would have rendered the place much safer for such work. We' think upon the evidence the jury were authorized to find that the appellant was negligent in not providing plaintiff with a safe place in which to perform his work, and the first assignment of error which complains of the verdict upon this issue, on the ground that it is not supported by sufficient evidence, cannot be sustained.

The second assignment complains of the verdict on the ground that there is no Evidence from which the jury were authorized to find that the alleged negligence of the appellant submitted to them by the charge of the court was the proximate cause of plaintiff’s injury. The fourth assignment complains of the refusal of the court to instruct the jury to return a verdict for the appellant on the ground that the undisputed evidence shows that the negligence of plaintiff’s fellow servant was the proximate cause of plaintiff’s injury. Neither of these assignments can be sustained. We think it could have been reasonably anticipated by appellant that the absence of a guard rail around this platform would result in injury to its employes who were required to work near the edge of the platform by their falling or being accidentally knocked therefrom while moving lumber thereon. It is not necessary, in order to hold appellant liable for plaintiff’s injuries, that it should have anticipated that the accident in which plaintiff received his injuries would occur in the precise manner in which it did, nor that such accident would result in the particular injuries received by plaintiff. All that was required to make appellant’s negligence the proximate cause of the injury to plaintiff was a reasonable anticipation that injury to some person put to work by it on said platform might result from its negligence. Ry. Co. v. Bigham, 90 Tex. 223, 38 S. W. 162; Ry. Co. v. McComus, 36 Tex. Civ. App. 170, 81 S. W. 760.

The negligence of appellant being a proximate' cause of plaintiff’s injury, appellant’s liability is not affected by the fact that such negligence was combined with the concurrent negligence of a fellow servant. Ry. Co. v. Sweeney, 14 Tex. Civ. App. 216, 36 S. W. 800; Ry. Co. v. Brown, 46 S. W. 926.

Plaintiff being a. minor and appellant having failed to warn him of the danger attending his work on the platform due to the absence of a guard rail, the rule as to his assumption of the risk of such danger is not the same as the rule applicable to an adult, and it was for the jury to determine from all the evidence whether he had sufficient knowledge and appreciation of the danger and its extent to exempt appellant from liability for his injury. He testified that he had not noticed the height of the platform from the ground, and did not know the place was dangerous, nor the danger of the work in which he was engaged. There is no evidence that he was mentally deficient, or that his eyesight was not that of a normal person, and it is hard to believe that he could have worked near the edge of this platform for the length of time he did and fail to observe its height, but a mere knowledge of the fact that the platform was a considerable distance from the ground is not sufficient to charge him with assuming the risk of performing his work thereon. He must, to be so charged, have realized the extent of the danger to which he was exposed from the height of the platform, the absence of a railing, and the character of the work he was called upon to perform thereon. The court did not err in refusing to instruct the jury to return a verdict in favor of appellant on the ground that upon the evidence plaintiff should, as a matter of law, be held to have assumed the risk of receiving the injuries sustained by him, and appellant’s third assignment, • which complains of the refusal of the court to so instruct the jury, is overruled. Ry. Co. v. Brick, 83 Tex. 598, 20 S. W. 511.

The fifth assignment complains of the refusal of the .trial court to instruct the jury to return a verdict for the defendant on the ground that plaintiff was guilty of contributory negligence. We think the issue of contributory negligence was properly submitted to the jury, the evidence not being such as to compel the finding that plaintiff was guilty of such negligence. -The assignment is overruled.

The jury fixed the amount of plaintiff’s damage at $8,500, of which amount plaintiff remitted the sum of $412. The sixth assignment complains of this verdict as excessive. The evidence shows that plaintiff’s right thigh was broken by his fall from the platform, and while the bones have again united his right leg is about 1% inches shorter than his left, and he is a permanent cripple. He was i'n bed about three months, and suffered and still suffers physical and mental pain as the result of his injuries. He testified that his leg hurt him to such an extent in bad weather that he could not work at all. At the time of his injury he was receiving $1.50 per day for his work. While the verdict of the jury is liberal, it is not so unreasonably large as to justify the conclusion that, in fixing the amount of plaintiff’s compensation, the jury was influenced by passion, prejudice, or any improper motive, and therefore we are not authorized to substitute our judgment for that of the jury as to the amount to which plaintiff is entitled.

By an agreement signed by counsel for both parties it is made to appear that an error occurred in the entry of the judgment in the court below, in that the judgment as entered was for a less amount than the verdict of the jury after deducting therefrom the remittitur of $412, filed by the plaintiff, and appellant agrees that, in event the judgment is affirmed, it shall be reformed so as to award plaintiff the amount found by the jury, less the remittitur.

It follows from our conclusions upon the assignments above discussed that the judgment should be affirmed, and in accordance with the agreement above stated should be reformed; and it is so ordered.

Reformed and affirmed.


author: WALTHALL, J.

text:
    THARP v. BRAKE.
    (No. 369.)
    (Court of Civil Appeals of Texas. El Paso.
    Dec. 3, 1914.)
    1. Municipal Corporations (§ 59) — BOWERS.
    A municipal corporation may only exercise those powers that are granted in express words or are necessarily and fairly implied in or incident to the powers expressly granted and those essential in the sense of being indispensable as distinguished from merely convenient to the authorized objects and purposes; any fair reasonable doubt concerning the power being resolved by the courts against its exercise.
    [Ed. Note. — Eor other cases, see Municipal Corporations, Cent. Dig. § 149; Dec. Dig. § 59.]
    2. Municipal Corporations (§ 58) — “Organic Act” — Powers.
    A statute by which a municipal corporation is organized and cieated is its “organic act” and the limit of its power, so that all acts beyond the scope of the powers there granted are void.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 145-147; Dec. Dig. § 58.

    For other definitions, see Words and Phrases, First and Second Series, Organic Act.]
    3. Municipal Corporations (§ 214) — Existence — Contest — Authority op Town — Contracts — Employment op Attorney.
    Since Rev. St. 1911, art. 1042 et seq., specifying the powers of an incorporated town or village, contained nothing conferring authority on it to become a party to a contest to determine the validity o.f an election on the question whether the corporation should be abolished, and article 3078 declared that in such a contest no costs should be adjudged against the town, such town had no authority to employ an attorney to contest such an election nor to bind the town for the payment of fees for such services.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 582-588; Dee. Dig. § 214.]
    4. Municipal Corporations (§§ 226, 858)— Incorporated Town — Contracts.
    An incorporated town, under the general laws of the state, can enter into valid contracts and incur debts only when the making of such contracts or debts is within the scope of its general corporate functions or of authority conferred by statute.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 645-650, 1813; Dec. Dig. §§ 226, 858.]
    5. Municipal Corporations (§ 244) — Corporate Action — Ordinances — Resolutions.
    _ A city or town council speaks' through its ordinances or resolutions, passed and promulgated as permitted or required by the law creating it; and hence the employment of an attorney, if otherwise authorized, can only be properly accomplished by an ordinance or resolution.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 678-681, 683; Dec. Dig. § 244.]
    6. Municipal Corporations (§ 220) — Contracts — Invalidity— Quantum Meruit.
    Where an incorporated town had no authority to employ an attorney to perform certain legal services, he could not recover the reasonable value thereof on a quantum meruit.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 599-608; Dec. Dig. § 220.]
    Appeal from Harris County Court; Clark C. Wren, Judge.
    Action by G. W. Tharp against Cabeen Blake, as receiver of the Town of Humble. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    C. B. Wood and G. W. Tharp, both of Houston, for appellant. R. H. Holland, of Houston, for appellee.

      For other cases see same topic and section NUMBER in Deo. Dig. 6 Am. Dig. Key-No. Series & Rep’r Indexes

   WALTHALL, J.

In this case appellant, G. W. Tharp, sues Cabeen Blake, receiver of the town of Humble, appellee, to recover on a debt of ?150 agreed to be paid him by the town council of the town of Humble for services as an attorney in an election contest to determine whether the incorporation of said town of Humble should be abolished. The town of Humble was incorporated as a municipal corporation on December 10, 1910, under the general laws of the state of Texas pertaining to the incorporation of towns and villages of more than 500 and less than 10,-000 inhabitants, and, under the present Revised Civil Statutes, constituting title 22, c. 14. The case was filed in the justice of the peace court, and appealed to the county court, where both appellant and appellee filed amended pleadings. Some questions , of pleading and practice were raised by demurrers to plaintiff’s pleadings in the county court by appellee, but, not being properly submitted under the rules, cannot be considered. The county court heard the pleadings and evidence and rendered judgment for ap-pellee, and appellant assigns this as error: First, because the evidence shows that plaintiff performed legal services for the town of Humble at an agreed price of $150 under a valid contract, made by the mayor and aider-men, in contesting an election held to determine whether or not the corporation of the town of Humble should be abolished; second, because the evidence shows that plaintiff performed the legal services, at the special instance and request of the town of Humble, acting through its mayor and aldermen in contesting an election, to determine whether or not the corporation of the town of Humble should be abolished, which legal services were reasonably worth $150; and, third, because the evidence shows that the town of Humble received the benefit of the services of plaintiff in contesting the election held to abolish the corporation, the mayor and aldermen knowing, at the time that said services were being rendered, the town of Humble is estopped from denying liability for same, hence the defendant (the receiver of the town) is liable for the reasonable value of the services so received, which was shown to be $150. We make the following findings of fact:

We find that on December 10, 1910, at an election legally held, the town of Humble was duly incorporated under what is now title 22, c. 14, Revised Civil Statutes of Texas; that thereafter a mayor and board of aldermen were duly elected and qualified; that on or about the 10th day of October, 1911, a petition was duly signed and presented to the county judge, asking for an election to determine whether the incorporation of the town of Humble should be abolished or not; that said election was duly ordered; that pursuant to said order an election was held, and a majority of the votes cast were in favor of abolishing the corporation; that prior to the said election the town of Humble, by a resolution duly passed, had employed the plaintiff as an attorney to advise the mayor and aldermen in matters pertaining to their duties, and had paid plaintiff for said services out of the current funds of the town; that, after the election held to- abolish the incorporation, the mayor and aldermen concluded to test, by a suit in the court, the legality of the election, and after consulting with plaintiff as to the charge he would make for his services to conduct such suit, at a meeting of the council, and without an ordinance or resolution being passed to test the validity of said election, or to engage the services of plaintiff as attorney, a motion was made and carried, but never reduced to writing, to employ plaintiff as attorney in a suit to contest said election and to pay him for his services in said suit the sum of $150, and the mayor was authorized to employ the plaintiff as attorney in said suit for $150; that the mayor thereafter did employ plaintiff as attorney to bring the suit contesting the election at the agreed amount to be paid him of $150; that thereafter, without further action by the town council, by ordinance, resolution, or otherwise, either as to said fee, or authorizing a suit to be filed contesting the election, a suit was filed by plaintiff, contesting the said election, entitled Warrener v. Lambrecht et al., 146 S. W. 633, and tried in the district court and Court of Civil Appeals and decided against the contestant; that an order was duly entered by the county judge declaring the corporation of the town of Humble abolished; that, in a suit filed in the district court of Harris county, appellee, Cabeen Blake, was appointed and qualified as receiver of the town of Humble; that plaintiff duly filed his claim for $150 with the recéiver, which was “allowed subject to the approval of the district court”; that a protest was filed against the allowance of the claim and bond given as provided by law; that appellant’s services' as attorney in said suit were reasonably worth the sum of $150.

Opinion.

The rule of construction of powers granted to towns and cities for the exercise of municipal purposes is that corporations possess and can exercise 'the following powers and none other: First, those granted in express words; second, those •necessarily and fairly implied in or incident to the powers expressly granted; third, those essential to the object and purposes not simply convenient, but indispensable. Any fair, reasonable doubt concerning the power is resolved by the courts against the exercise of such power. The statute by which a municipal corporation is organized and created is its organic act, and the corporation can do no act or make any contract not authorized thereby. All acts beyond the scope of the powers granted are void. Williams v. Davidson, 43 Tex. 1; .Dillon on Municipal Corporations, § 55, et seq. All the powers granted to towns and villages incorporated under title 22, c. 14, of the Revised Civil Statutes, seem to be embraced in the following article:

“Art. 1042. When the entry mentioned in the preceding article has been made (the entry by the county judge of the election returns deL claring the village incorporated and designating the boundaries with the plat of the town) the town shall be invested with all of the rights incident to such corporation under this chapter, and shall have power to sue and be sued, plead and be impleaded, and to hold and dispose of real and personal property” — situated within the limits of the corporations.

The statute provides for the election of officers, fixing the term of office; states what constitutes a quorum for the transaction of business; gives the quorum power to enact such by-laws and ordinances not inconsistent with the laws and Constitution of the state, as shall be deemed proper for the government of the corporation; gives the corporation power to remove nuisances, regulate markets, control over streets and alleys and other public places within the corporate limits; power to levy taxes, fill vacancies; requires the publication of all ordinances; and prescribes the manner of abolishing the corporation. The powers of a municipal corporation organized under the chapter pertaining to the incorporation of towns and villages are very limited. Judge Gaines, in Waxahachie v. Brown et al., 67 Tex. 519, 4 S. W. 207, in discussing the question whether the town of Waxahachie had the power to create an indebtedness for the purchase of a schoolhouse, and, incidentally, the difference between the powers granted cities and towns and those granted to towns and villages, used the following language:

“The difference between the provisions of the title referred to in reference to cities and those relating to towns is remarkable. There are ten chapters devoted to the former, and but one to the latter, class of municipal corporations. The powers granted to towns in chapter 11 (now 14) of that title are hardly more than are absolutely essential to their existence as bodies corporate. No authority to issue bonds or to create debts is given them, and bence there are ■no enactments regulating the amount or mode of their issue.”

Since the Supreme Court rendered the opinion in that case, several articles have been added to the chapter relating to the incorporation of towns and villages, but none extending their general powers. There is no provision in the statute that can be construed to authorize the town council to contest the election held to abolish the corporation, and the right to contest the election is not incident to any powers granted. If it cannot contest the election directly, it cannot do so indirectly, as that would be to exercise a power not granted, and not within the scope of the purposes for which it was created. Article 3077, Revised Civil Statutes, referring to contested elections, provides:

“If the contest be for the validity of an election held for any other purpose than the election of an officer or officers in any county or part of a county or precinct of a county, or in any incorporated city, town or village, any resident of such county, precinct, city, town or village, or any number of such residents, may contest such election in the district court of such county in the same manner and under the same rules, as far as applicable, as are prescribed in this chapter for contesting the validity of an election for a county office.”

Article 3078 provides:

“In any case provided for in the preceding article, the county attorney of the county, or where there is no county attorney the district attorney of the district, or the mayor of the city, town or village, or the officer who declared the official result of said election, or one of them, as the case may be, shall be made the contestee, and shall be served with notice and statement, and shall file his reply thereto as in a case for a contest for office; but in |no case shall the costs of such contest be adjudged against such contestee, or against the county, city, town or village which they may represent, nor shall such contestee be required to give any bond upon an appeal.”

It will be observed that the statute makes no provision for a county, precinct, city, town, or village to become a contestant in an election. The statute makes provision for a contest, and who may be made contestee, but provides that no costs shall be adjudged against the contestee or against the county, city, town, or village which they may represent. The city council in this case undertook to become the contestant in the name of S. K. Warrener, for which there is no authority or power given in the statute. It was an attempt to exercise an implied power not necessary or incident to any of the powers granted. The city council, by a motion made and carried, but not reduced to writing or in any manner made a part of the proceeding or action of the council, undertook to create a debt for the attorney’s fees, a part of the expenses or costs of the contest. We think the inhibition in the last article of the statute quoted against taxing any of the costs of the contest against a contestee representing the village,- by analogy, at least, might be applied to such debt or costs. There is no such power given the town council, and no implied power could be exercised that would not come within the objects and purposes for which the corporation was created, and not reasonably necessary and proper for the discharge of the functions committed to them. City of Bryan v. Page & Sims, 51 Tex. 532, 32 Am. Rep. 637; Williams v. Davidson, 43 Tex. 33.

A town incorporated under the general laws of the state can enter into valid contracts and incur debts only when the making of such contracts or debts is within the scope of its general corporate functions, or of authority conferred by the statute. A city or town council speaks through its ordinances or resolutions passed and promulgated as permitted or required by the law creating it. If the town of Humble, acting through its town council, could have entered the courts either in its corporate name or in the name of S. K. Warrener, to contest the election to abolish the corporation, and we hold that it could not, it seems to us that it could do so only by an ordinance or resolution so declaring. None was passed. The bare fact that a fee of $150 was a reasonable charge for the services rendered would not be sufficient to constitute appellant’s cause of action.

There was no error in rendering judgment for appellee.

Cause is affirmed.


author: WILLSON, C. J.

text:
    CONTINENTAL BANK & TRUST CO. v. DEALEY BROS. et al.
    (No. 1299.)
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 5, 1914.)
    1. Sales (§ 363) — Questions foe Juey.
    Where conflicting testimony made an issue as to whether one of the defendants was the purchaser of certain shingles or not, it was error to peremptorily instruct the jury that plaintiff, suing as assignee of the indebtedness for the purchase price, was not entitled to recover as against such defendant.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. § 1004; Dec. Dig. § 363.]
    2. TROVER AND CONVERSION (§ 34) — ISSUES and Proof.
    Proof of several and distinct conversions by_ two persons will not support a recovery for a joint conversion.
    [Ed. Note. — For other cases, see Trover and Conversion, Cent. Dig. §§ 207-214; Dec. Dig. 34.]
    Appeal from Dallas County Court; W. F. Whitehurst, Judge.
    Action by the Continental Bank & Trust Company against Dealey Brothers and others. From a judgment for plaintiff against one of the defendants, and for the other defendants against the plaintiff, plaintiff appeals.
    Reversed and remanded.
    About October 3, 1907, the C. A. Bonds Lumber Company shipped two cars of shingles from Shreveport, La., to the Craven Lumber Company in Dallas, Tex. It appeared from the face of the invoices made by the Bonds Company to cover the shipments that the Craven Company were the purchasers of the shingles. The Craven Company contended it had not purchased them, but had merely agreed with the Bonds Company to receive and sell them on the Bonds Company’s account. To secure $610 advanced to it on the shipment by appellant, the Bonds Company on October 5, 1907, delivered the invoices and bills of lading covering the shipments to appellant, after having printed with a rubber stamp on each of the two invoices the following:
    “Transferred for value received to Continental Bank & Trust Co., Shreveport, La. Remit direct to them for account of C. A. Bonds Lbr. Co., by C. A. Bonds.”
    Appellant, believing that the Craven Company was the purchaser of the shingles as shown by the invoices, forwarded the invoices and the bills of lading to said Craven Company, without at the same time, by letter or otherwise, advising the Craven Company it had done so. The Craven Company, after receiving the invoices and bills of lading, advised the Bonds Company it did not care to handle the shingles, and afterwards, having been directed by the Bonds Company to do so, delivered the.invoices and bills of lading to O. L. Dealey, then doing business in Dallas under the name of Dealey Bros., who had agreed- with the Bonds Company to undertake to sell same on its account. October 26, 1907, Dealey sold the shingles to one Tims in Ft. Worth, to be paid for by the latter in 90 days from that date. Tims never paid for the shingles, and before the expiration of the 90 days credit given to him was adjudged a bankrupt. Appellant’s suit was against the Bonds Company, C. A. Bonds, the Craven Company and Dealey. The Craven Company in its answer prayed that, if appellant recovered against it, it have judgment for the amount so recovered over against the other defendants. In accordance with a verdict returned by the jury in compliance with peremptory instructions given them by the court, judgment was rendered in appellant’s favor against C. A. Bonds, “doing business,” it was recited in the judgment, “under the trade-name of Bonds Lumber Company,” for the sum of $610 and interest, and, in favor of the Craven Company and Dealey against appellant for costs. From the judgment so rendered appellant prosecuted this appeal.
    W. H. Clark and M. M. Plowman, both of Dallas, for appellant. Halloway & Halloway, W. M. Pierson, and L. P. Pierson, all of Dallas, for appellees.

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

   WILLSON, C. J.

(after stating the facts as above). In its petition appellant alleged that the Craven Company purchased the shingles of the Bonds Company, and that the Bonds Company assigned to it the indebtedness for the purchase price thereby arising in that company’s favor against the Craven Company. As the owner of this debt appellant sought judgment against the Craven Company for the amount thereof. By other counts in its petition appellant sought, in the event it should appear that the Craven Company had not purchased the shingles, judgment against that company and Dealey Bros, on the theory that they, acting together with the Bonds Company in pursuance of a scheme to defraud it, had converted the shingles by the sale thereof to Tims. The allegation that the Craven Company purchased the shingles and became indebted to the Bonds Company for the purchase price thereof was supported by the testimony of C. A. Bonds that the Craven Company “agreed to buy and did buy the shingles in controversy.” This testimony, and testimony showing the Bonds Company to have assigned its claim against the Craven Company for the purchase price of the shingles to appellant, made an issue as to whether the latter company had purchased the shingles or not, which should have been submitted to the jury. The trial court had no right, because it was contradicted by other testimony in the case, to determine the question himself. It must be held, therefore, that that court erred when he peremptorily instructed the jury that appellant was not entitled to recover anything as against the Craven Company; for, clearly, appellant was entitled to recover against that company if it was true, as the jury might have found it to be, that the Craven Company as purchasers of the shingles had become indebted to the Bonds Company. On another trial, if the testimony maltes an issue, as it did on this one, as to whether the Craven Company was the purchaser of the shingles or not, the jury should be instructed to find for appellant as against that company if they believe it purchased the shingles, and, in that event, to find against appellant on its claim of liability to it on the part of Dealey Bros.; for if the Craven Company was the owner of the shingles, Dealey Bros., in _ selling same to Tims, were not guilty of a conversion thereof as against appellant.

In reversing the judgment so far as it is in favor of the Craven Company and Dealey Bros., on the ground stated, we do not mean to be understood as holding that the peremptory instruction given either would or would not have been error if the testimony had not made an issue as to whether the Craven Company was the purchaser of the shingles or not. With reference to this phase of the case we will not say more than that we are inclined to believe the testimony was not sufficient to support a finding that the Craven Company and Dealey Bros., if the former was not the purchaser of the shingles, acted together in converting same. If they did not act together in the matter, but were liable, if at all, as for several and distinct conversions, it may be it was not error to so instruct with reference to this branch of the-case, on the theory that appellant, having alleged a joint conversion, and proved several and distinct conversions, was not entitled to recover. Strawbridge v. Stern, 112 Mich. 16, 70 N. W. 331; Cooper v. Blair, 14 Or. 255, 12 Pac. 370; Dahms v. Sears, 13 Or. 47, 11 Pac. 891; Larkins v. Eckwurzel, 42 Ala. 322, 94 Am. Dec. 651; 15 Plead. & Prac. 562; 21 Plead. & Prac. 1033.

Bonds is not in the attitude of complaining of the judgment against him. Therefore it will be affirmed as to him, and will be reversed in other respects, and will be remanded for a new trial as between appellant, the Craven Company and Dealey Bros.