author: TALBOT, J.

text:
    ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. EVANS.
    (No. 7142.)
    (Court of Civil Appeals of Texas. Dallas.
    April 18, 1914.
    Rehearing Denied May 9, 1914.)
    1. Appeal and Error (§ 1001) — Review-Verdicts and Findings — Conclusiveness.
    Where the issues of negligence and contributory negligence were fully and fairly submitted, and it could not be said that the jury’s findings in relation thereto were without substantial evidence to support them, the appellate court was not warranted in disturbing the verdict.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3922, 3928-3934; Dec. Dig. § 1001.]
    2. Railroads (§ 326) — Accidents at Crossings — Contributory Negligence.
    The issue raised by the action of the driver of a horse and buggy in attempting to cross a railroad crossing, which was torn up for repairs, at the invitation of the foreman in charge, was one of contributory negligence, and not assumption of risk.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1037-1042; Dec. Dig. § 326.]
    3. Railroads (§ 303) — Accidents at Crossings — Defects in Crossings — Changing Location op Highway.
    The failure of a railroad to construct a temporary crossing, while the regular crossing upon which plaintiff was injured was torn up for repairs, constituted negligence, if such a temporary crossing might easily have been constructed on either side of the regular crossing.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 959-963, 966, 967; Dec. Dig. § 303.]
    4. Railroads (§ 350) — Accidents at Crossings — Questions for Jury.
    Whether a railroad company was guilty of negligence proximately resulting in injuries to the driver of a horse, which ran away at a crossing which was torn up for repairs, and whether the driver was guilty of contributory negligence or assumed the risk, held, on the evidence, questions for the jury.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1152-1192; Dec. Dig. § 350.]
    5. Railroads (§ 340)— Injuries to Third Persons — Accidents at Crossings — Statements of Railroad Foreman.
    A railroad foreman, in charge of repair work at a highway crossing, was the representative of the company, to give notice of its condition to travelers ignorant thereof; and the company was liable for injuries to a traveler, if due to negligence of the foreman in stating that he could cross.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1102-1104; Dee. Dig. § 340.]
    6. Trial (§ 296) — Actions for Injuries— Instructions — Cure of Error.
    A charge that plaintiff could recover for injuries sustained from his horse running away at a railroad crossing, which was torn up, if defendant’s foreman represented that a wagon had crossed and he could cross over, was not erroneous, because such statements were a mere expression of opinion, as they could hardly be so considered, and it was further charged that he could not recover if they were mere expressions of opinion.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 705-713, 715, 716, 718; Dec. Dig. § 296.]
    7. Railroads (§ 351) — Accidents at Crossings — Actions for Injuries — Instructions.
    A charge permitting recovery for injuries sustained from plaintiff’s horse running away at a railroad crossing, which was torn up, if plaintiff relied upon the representations of defendant’s foreman that he could cross, was not defective, because not submitting knowledge of facts putting plaintiff on inquiry, particularly as it was merely an omission, which could have been supplied, if requested.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1193-1211, 1213-1215; Dec. Dig. § 351.]
    Appeal from District Court, Collin County; F. E. Wilcox, Special Judge.
    Action by B. B. Evans against the St. Louis Southwestern Railway Company of Texas for damages for personal injuries. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    See, also, 158 S. W. 1179.
    E. B. Perkins, of Dallas, and Head, Smith, Maxey & Head, of Sherman, for appellant. L. C. Clifton, of McKinney, and Evans & Carpenter, of Greenville, for appellee.

      Fot other eases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Index»*

   TALBOT, J.

This is the second appeal in this case, the first going to the Court of Civil Appeals of the Sixth District, sitting at Texarkana, and resulting in the case being reversed and remanded by that court, because the trial court had submitted a cause of action not then pleaded. After the return of the mandate, and on September 15, 1913, the appellee filed an amended petition, in which said cause of action w;as pleaded. The suit was instituted by appellee, Evans, to recover damages for personal injuries received by him through the negligence of appellant’s servants. The defenses were a general denial, contributory negligence, and assumed risk. A trial resulted in a verdict and judgment in favor of appellee, and tire appellant appealed.

The evidence warrants the following conclusions of fact: Appellant’s railroad passes through the town of Nevada, in Collin county, Tex., running practically east and west. About one-half mile east of Nevada the railroad crosses the Farmersville and Royse public county dirt road, which runs north and south. On the 18th day of March, 1910, the appellee was and had been for some time a mail carrier, and a part of his route and many of the patrons to whom he delivered mail resided on both sides of the appellant’s railroad on said public dirt road. Appellee used for the purpose of carrying the mail a horse and single buggy, and was on his route delivering mail, traveling along the public road, when hurt When he reached the point where the defendant’s railroad crossed the dirt road, its agents and servants were there repairing the track and roadbed on said railroad crossing. They had removed the dirt from between the ties and around the rails on the public road crossing, making the same a skeleton track, and had removed all of the dirt from between the ties to the depth and thickness 'of the ties, which was six or seven inches, and the dirt had been piled out on the south side of the track, forming an embankment or ridge across the public dirt road parallel with the railroad and something near the ends of the ties. This rendered the track dangerous for travelers, using the dirt road, to pass over the crossing, which was known to appellant, but unknown to appellee. When appellee drove up to the crossing, he was informed by the agent of appellant in charge of the repair work that it would be all right to cross over the same by leading his horse; that others before him had done so that morning; and appellee, relying upon said representations, got out of his buggy and attempted to lead his horse, hitched to the buggy, over the crossing. When he led his horse onto the skeleton track, he discovered for the first time the depth of the holes between the cross-ties, and by reason of the condition of the track his horse became frightened, ran away, and seriously injured appellee.. The servant of appellant knew the condition of the track and the probable danger to appellee in attempting to cross it, but neither was known to appellee at the time he attempted to pass over the crossing. The appellant was guilty of negligence in removing the dirt from every part of the crossing at the same time, and in throwing up the embankment across the same, without leaving some portion of it reasonably safe for the use of persons traveling the public dirt road, and in permitting said crossing, for the time shown, to remain in that condition, or in failing to construct a temporary way around the crossing, and in making the statements shr.wn to appellee. The appellee under the circumstances, was not guilty of contributory negligence, and did not assume the risk of danger in using the crossing.

It is first assigned that the court erred in refusing appellant’s special charge directing the jury to return a verdict in its favor. Five propositions are urged under this assignment, which are in substance as follows: (1) That a railway company has a right to reconstruct and repair its road over a highway, and for this purpose may disturb the enjoyment and use of the highway by the public so long as such work renders such disturbance reasonably necessary; (2) that the evidence in this case failing to show any negligence upon the part of the railroad, as charged by plaintiff, the court should have instructed a verdict for the appellant; (3) that the undisputed evidence disclosed that in going over the crossing in question appellee chose a dangerous way, when a safe one was available to him, and therefore was guilty of contributory negligence, precluding a recovery; (4) that the undisputed evidence shows that appellee, with full knowledge of the condition of the crossing, or such knowledge as would put a reasonably prudent man on inquiry as to its condition, went into the same with his horse and buggy, and was negligent in using it after knowing its condition, or negligent in using it without knowing its condition, and therefore is not entitled to recover ; (5) that plaintiff, when he attempted to use the crossing, knew or should have known that the use of it was attended with danger; that it was more unsafe for him to use the same than to go farther and use another crossing, or wait and use the crossing where the accident occurred after it was finished; and hence he assumed the risk of the increased danger, and cannot recover for the injuries caused thereby.

Our conclusions of fact, which we think are supported by the evidence, and which, under the court’s charge, were necessarily the conclusions of the jury, determine the propositions of no actionable negligence on the part of the appellant and contributory negligence on the part of the appellee, barring a recovery against appellant. The jury was distinctly charged that if they believed from the evidence- that the appellant -was not guilty of negligence in the statements of its foreman, if any, made on the occasion when appellee was attempting to cross the railroad track, or that appellee was not induced to attempt to pass over said track by reason of said statements, if any, which were mere expressions of the foreman’s opinion, and so understood to be by appellee at the .time, then in either such event to find for defendant. They were also instructed that if, in failing to leave some portion of its track intact and accessible to persons traveling the dirt road, the appellant was not guilty of negligence, or was not guilty of negligence in failing to provide a temporary crossing at the place in question, to find for appellant upon botli such issues. Upon tifie question of contributory negligence they were instructed that if tlie appellee failed to look at tbe condition of tbe crossing, and that be could by looking bave ascertained tbe condition of tbe same before going on it, and that in failing to look be was guilty of negligence wbicb contributed to bis injuries, or that if appellee knew, or by tbe exercise of ordinary care could bave known, of tbe condition of tbe crossing before going on it, and that in undertaking to pass over same with sucb knowledge, or without informing bimself as to sucb condition, or if there was another way, wbicb appellee could bave taken, so as to bave passed over appellant’s track in safety, and that in not taking ■such other way appellee was guilty of contributory negligence, then in either sucb event to "find for defendant. Thus, it appears that the issues of negligence and contributory negligence were fully and fairly submitted, ■and, not being prepared to say that tbe jury’s findings in relation thereto are without substantial evidence to support them, we would mot be warranted in disturbing their verdict.

In regard to appellant’s fifth proposition stated above, it is sufficient to say that, if in any event tHe issue of assumed risk could arise in a case of this character; it did not, in our opinion, arise in this instance. The issue made by the evidence was one of contributory negligence on tHe part of appellee, and not one of assumed risk. But, if we should be mistaken in this, then the answer to appellant’s contention upon this phase of tHe case is that the evidence did not conclusively establish the facts necessary to charge appellee with the assumption of the risk incident to his attempt to pass over the crossing, and the peremptory instruction, so far as sucb question is concerned, was properly refused.

The proposition to the effect that the appellant, under our statute, had the right to reconstruct or repair its railroad over the public dirt road in question, and for that purpose could disturb the enjoyment and use of all of said road by the public so long as such work made such disturbance reasonably necessary, should not be sustained. In Texas Midland Railroad v. Johnson, 20 Tex. Civ. App. 572, 50 S. W. 1044, this court held that tbe statutory duty imposed upon railway companies to restore public highways crossed by their railroad tracks to sucb state as not to unnecessarily impair their usefulness is not postponed until tbe completion of tbe crossing, and in so bolding said: “We think a liberal and fair construction of that statute would require tbe railway company not to wholly prevent passage of travelers along tbe way during tbe time of tbe construction of tbe railroad, when their passage may practically be provided for during tbe time tbe work is going on. If a temporary turn of tbe highway around tbe work of construction may practically be provided, then that would be a duty owed by the company to tbe public.” After quoting tbe foregoing excerpt from tbe Case of Railway Co. v. Johnson, supra, the Court of Civil Appeals for tbe Sixth District, on tbe former appeal of this ease, and on practically tbe same facts as now appear in tbe record, said: “There was testimony from wbicb tbe jury might bave found that appellant could easily bave constructed a crossing over its track on either side of the traveled part of tbe road, for tbe use of tbe public, until it restored said traveled part to its former state. If it might bave constructed sucb a crossing, and did not, and so violated a duty it owed to appellee as one of tbe general public, it cannot be said there was no evidence warranting a finding by tbe jury that it was guilty of negligence.”

We think these conclusions of the Court of Civil Appeals of the Sixth District, with reference to both the testimony and the law of the ease, correct, and shall adhere to them. Clearly, the evidence offered by appellee,, or all the evidence taken as a whole, was not so lacking in probative force as warranted the trial court in holding, as a matter of law, either that appellant was not guilty of actionable negligence resulting proximately in the injury of appellee, or that appellee was guilty of contributory negligence, or has assumed the risk of injury in attempting to pass over the crossing at the time, place, and under the circumstances as shown, and those questions were properly submitted to the jury for determination. Tbe cases cited by appellant in support of its several contentions were decided upon facts dissimilar to those in the case at bar, as we understand them, and do not control its decision.

This disposes of appellant’s second, third, fourth, fifth, and sixth assignments of error adversely to its contention, and they need not be stated and discussed in detail.

The seventh assignment complains of that paragraph of the court’s charge wherein the jury was instructed that if the appellee, while approaching appellant’s railroad track in a buggy drawn by a horse, for the purpose of crossing said track, was informed by the foreman of the crew then and there engaged in ballasting or fixing, said track that the track or crossing was a little rough, but that a wagon bad passed over it a short time before that, and that if he (appellee) would get out of bis buggy and lead bis horse be could cross over, and that said statements, if made, were made as representations of fact, with the intention that the appellee should act on same, and that appellee relied upon said statements and was induced to act thereby, etc., and that if said foreman in making said statements was under all the circumstances of the case guilty of negligence, and sucb negligence was the proximate cause of appellee’s injury, to find for appellee. Tbe propositions contended for under this assignment are: (1) “The evidence shows that the foreman, Odom, was not authorized to make the statement attributed to him, the same was not within the implied scope of his authority, and negligence as to appellant cannot be predicated on it.” (2) “Negligence cannot be predicated on the expression of an opinion about a matter that may be understood as well by one rational mind as another.” (3) “The charge is wanting in an essential ingredient, in not submitting to the jury knowledge by plaintiff of facts that would put a prudent man on inquiry as to the condition of the crossing and would have caused him to find out the condition, or that the plaintiff might have known of the condition.”

Neither of these propositions should, in our opinion, be sustained. With knowledge that travelers on the public dirt road would probably appear and undertake to pass over the crossing while its track was being reconstructed or repaired, appellant placed its foreman in exclusive charge and control of the work. He thereby became the representative of the company whose duty it was to give notice ■ of the condition of the crossing to such travelers as were ignorant of its dangerous condition and desired to use it, and in the discharge of this duty his acts and statements were such acts and statements, if negligently made to appellee’s hurt, as rendered the appellant liable for damages sustained thereby. The statement in question can hardly be considered as the expression of the foreman’s opinion. He was in a position to know the condition of the crossing, and his statement in reference thereto clearly purported to be the statement of facts' within his knowledge, and was calculated to induce one desiring to use the crossifig to rely thereon. The charge complained of made the right of appellee to recover on this issue depend upon a finding that the statement was a representation of fact, and made with the intention that appellee should act on the same. Besides, in another paragraph of the court’s charge, the jury were told that if they believed the statements in question were mere expressions of opinion, and so understood by appellee, to return a verdict in favor of appellant on the issue.

As to the third proposition, it is sufficient to say that we do- not believe the charge was defective in the particular claimed. If it was, then it appears to be one of omission, which should have been supplied by a special chaise requested by appellant.

The other assignments of error have been disposed of by what we have already said or disclose no reversible error. The evidence supports the verdict, the issues were fairly submitted to the jury, and, finding no error in the record requiring a reversal of the case, the judgment of the court below is affirmed.


source: Caselaw Access Project

author: FLY, C. J.

license: Public Domain

text:
    WILSON v. WARE et al.
    (No. 5,254.)
    (Court of Civil Appeals of Texas. San Antonio.
    April 15, 1914.
    Rehearing Denied May 13, 1914.)
    1. Payment (§ 42) — Payment—Appropriation of Payments.
    If there was no appropriation of a payment made upon a promissory note, it would be applied to the interest.
    [Ed. Note. — For other cases, see Payment, Cent. Dig. § 121; Dec. Dig. § 42.]
    2. Justices of the Peace (§ 44) — Jurisdictional Amount.
    Where the principal and interest of the note sued on, when added to the 10 per cent, attorney’s fee provided for in the note, amounted to $201.61, a justice’s court did not have jurisdiction in the action.
    [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 157-172; Dec. Dig. § 44.]
    3. Justices of the Peace (§ 42) — Jubisrictionai Amount.
    The fact that the amount in controversy was only $1.61 over $200, the jurisdictional-amount of a justice court, cannot be considered in order to give it jurisdiction of the action.
    [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. § 148; Dec. Dig. § 42.]
    Appeal from Uvalde County Court; T. M. Milam, Judge.
    Action by John T. Wilson against O. L. Ware and others. Prom a judgment of dismissal, plaintiff appeals.
    Affirmed.
    J. L. McCammon, of Sabinal, for appellant. H. C. King, of Sabinal, and L. Old and L. E. Lanier, both of Uvalde, for appellees.

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

   FLY, C. J.

This is a suit for the balance due on a promissory note, with interest and attorney’s' fees, instituted by appellant against O. L. Ware and J. W. Ware, appellees, in the justice’s court of precinct No. 2, Uvalde county. Appellant sued for $196, including attorney’s fees, and the cause was dismissed on the ground that the attorney’s fees and the balance of the principal of the note amounted to more than $200. The cause was appealed to the county court, where the appeal was dismissed for want of jurisdiction.

The note was executed on June 7, 1907, and was for $227, due in one year, or before, and provided for 8 per cent, interest per annum from date, and for 10 per cent, attorney’s fees on principal and interest in case the note was placed in the hands of an attorney for collection, or suit was brought thereon. On November 10, 1907, all of the interest to that date and $50 on the principal had been paid, leaving due the sum of $177. On May 1, 1908, there was a payment of $2.45. There was no appropriation of the .payment, and -under those conditions the payment would be applied to the interest: Hampton v. Dean, 4 Tex. 455; Hearn v. Cuthbert, 10 Tex. 216; Tooke v. Bonds, 29 Tex. 419.

When the payment was made, on November 10, 1907, the principal was reduced to $177, and there was due on the note on December 13, 1912, principal, $177, and $69.-16, interest, amounting in the aggregate to $246.15. Ten per cent, on that sum lor attorney’s fees would amount to $24.61, which, added to the principal sum of $177, would be $201.61. That sum was not within the jurisdiction of the justice’s court.

In the case of Burke v. Adoue, 3 Tex. Civ. App. 494, 22 S. W. 824, 23 S. W. 91, it was held: “It may be true that the claim for the attorney fee was so distinct from the debt that the plaintiffs might have wholly abandoned it, and have thus obtained a standing in court upon a cause of action which the court had power to adjudicate. But this was not done. The effort was made to abandon a part of that demand and recover the remainder. Upon principle, it would seem that this was not permissible. The cause of action upon the note was entire, and was a liquidated demand, as was the stipulated fee. What court had the power to hear and adjudicate it was determined by law. The right to have the cause passed upon in that forum belonged to defendants, as well as to the plaintiffs, and the arbitrary action of neither could deprive the other of its enjoyment.” That decision was approved by the Supreme Court in Railway v. Canyon Coal Company, 102 Tex. 478, 119 S. W. 294.

The smallness of the excess cannot be taken into consideration. As said by the Supreme Court in Clark v. Brown, 48 Tex. 212: “This being a question of jurisdiction determinable by a particular amount in dollars and cents, to wit, $200, the smallness of the deficiency in reaching that amount is immaterial, if it can certainly be ascertained by a proper calculation that an appreciable deficiency does actually exist.” In that case the amount sued for in the justice’s court amounted to $199.80.

The judgment is affirmed.


author: HALL, J.

text:
    ST. LOUIS, S. F. & T. RY. CO. et al. v. GILLIAM & JACKSON.
    (No. 601.)
    (Court of Civil Appeals of Texas. Amarillo.
    April 11, 1914.
    Rehearing Denied May 9, 1914.)
    1. Appeal AND Error (§ 1087

      ) — Review— Harmless Error — Presumptions.
    Where the shipper claimed that a verbal contract, instead of the written one, limiting the carrier’s liability, governed, and there was sufficient evidence to prove, the terms of the verbal contract and to sustain the shipper’s claim that there was no consideration for the written contract, a verdict in the shipper’s favor raises a presumption that the jury found that the shipment was made under the verbal contract, though the question which contract governed was not submitted, and hence the ; failure of the charge to submit issues presented by the written contract was harmless.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. § 4229; Dec. Dig. § 1067.]
    2. Appeal and Error (§ 1068) — Review-Harmless Error.
    Where the defendant carrier did not request any instruction submitting the issue whether a written contract limiting its liability was based on a valid consideration, and a verdict for plaintiff raised a presumption that it was without consideration, and that the rights of the parties were fixed by a verbal contract, a statement by the trial court that some of the provisions of the written contract were without consideration, while improper, being on the weight of the evidence, is harmless.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 4225-422S, 4230; Dec. Dig. § 1068.]
    3. Carriers (§ 62) — Validity cut Oral Contract.
    Where the agent of a carrier verbally contracted with a shipper, the carrier is liable on such contract, though a written bill of lading was subsequently drawn up and accepted, unless the shipper at the time of malting the verbal contract knew he would be required to sign the written contract, and hence, where a shipper relied on a verbal contract, evidence of its terms is admissible.
    [Ed. Note. — Eor other cases, see Carriers, Cent. Dig. §§ 195-206%; Dec. Dig. § 62.]
    4. Evidence (§ 491) — Opinion Evidence— What Constitutes.
    In an action for delay of a shipment of cattle, testimony by a witness that he thought the run was a “very slow run” is not objectionable as opinion evidence.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2269; Dec. Dig. § 491.]
    Appeal from District Court, Hardeman County; J. A. Nabers, Judge.
    Action by Gilliam & Jackson against the St. Louis, San Francisco & Texas Railway Company and others. From a judgment for plaintiff, defendants appeal.
    Affirmed.
    Fires, Decker & Clarke, of Quanab, for appellants. J. C. Marshall and M. M. Hankins, both of Quanah, for appellees.

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

   HALL, J.

The appellee instituted this suit in the district court of Hardeman county, Tex., against appellants for damages to a shipment of cattle made by appellee over appellants’ line of road about March 23, 1912, from Quanah, Tex., to Kansas City, Mo. By original petition, appellees sought to recover on account of the negligence of appellant in delaying the cattle and by reason of rough and careless handling, causing shrinkage, and alleged a decline in the market. Appellant filed a general denial and specially pleaded the fifth paragraph of the written contract of shipment, which paragraph provides that the live stock in said shipment were not to 'be transported or delivered within any specified time nor in season for any particular market. This is followed by the following: “And herein plaintiff pleads each and every paragraph, clause and provision of said contract, attaches the said contract hereto, and makes the same a part of this answer.” The appellant further specially set up in defense the regulations of the Interstate Commerce Commission forbidding carriers to confine cattle in cars more than 28 consecutive hours and alleged that the plaintiff in writing released the “36-hour rule” and requested that said cattle be unloaded, fed, and watered, which was done. The contention of appel-lee is that the shipment was made under an oral contract, and by supplemental petition set up the same, and alleged that there was no consideration for the written contract plead by appellant. The ease was tried upon special issues submitted to the jury, and resulted in a verdict and judgment for ap-pellees in the sum of $673.69.

The appellant’s first assignment of error urges the proposition that 'because the thirteenth paragraph of the written contract of shipment provided that, in case of delay for any cause for which the company may be liable, payment should be made on the basis of the amount which the shipper is caused to expend on account of delay for feed, water, and care of live stock, the court erred in submitting to the jury any other measure of damages than that provided for in said paragraph. As said above, the appel-lee pleaded a want of consideration for the written contract, but alleged that the shipment was made under a verbal agreement entered into between appellees and the agent of appellants at Quanah. The court nowhere submitted to the jury the issue as to which contract controlled the shipment, nor was the question of the want of consideration submitted. We must presume in this state of the record that the jury found the shipment to have been made under the verbal contract and that there was no consideration for the written contract. TJhere is evidence in the record sufficient to prove the terms of the verbal contract alleged by appellees and to sustain, the plea of want of consideration as alleged. Devine v. U. S. Mortgage Co., 48 S. W. 585; Holly v. Simmons, 99 Tex. 230, 89 S. W. 776; Breneman v. Mayer, 24 Tex. Civ. App. 164, 58 S. W. 725. Such being the case, the error of the court, if any, in failing to charge upon any issue which might have been injected into the cause by the terms of the written contract, becomes harmless.

The second assignment of error complains of the action of the court in stating in the hearing of the jury that some of the provisions of the written contract introduced by appellant were without consideration. By force of the presumption mentioned above, we must conclude that the written contract was without consideration. This statement of the court, under ordinary circumstances, would require a reversal of the judgment. It has been frequently held that any remark of the court with reference to the evidence which tends to give his opinion, either as to the weight or effect of the evidence, falls within the statute prohibiting the trial court in the charge from discussing the weight of the evidence. Howorth v. Carter, 23 Tex. Civ. App. 469, 56 S. W. 539; Texas & Louisiana Lumber Company v. Rose, 103 S. W. 444; Lewter v. Lindley, 89 S. W. 784. The remark of the court having been made with reference to an issue which, through the failure of appellant to have submitted to the jury, we are forced to presume was found in accordance with the statement made by the court, we must hold the error to be harmless. Having failed to have the issue submitted to the jury, we think appellant has waived its right to complain, since the verity of the court’s statement is presumed.

The third assignment of error is that the court erred in permitting the testimony of the plaintiff Jackson to the effect that the defendants’ agent at Quanah promised to get his cattle into Kansas City in time for the Monday market. The objection urged to the testimony was that the evidence was irrelevant, immaterial, and, as shown by the written contract offered in evidence, the agent had no authority to make such statement, and it was not shown that he did make the statement by any authority of the defendants. The suit being based upon the oral contract, this testimony was admissible to prove the plaintiff’s allegations. Where the agent of a carrier verbally contracts with the shipper, the carrier may be held liable, notwithstanding the fact that a written bill of lading is subsequently drawn up and accepted by the shipper, and the verbal contract will be binding upon the carrier, in the absence of anything showing that at the time the verbal contract was entered into the shipper knew that he would be required to sign the written contract and that he was familiar with the contents of the writing. Gulf, etc., Ry. Co. v. Funk, 42 Tex. Civ. App. 490, 92 S. W. 1032; Atchison, Topeka & Santa Fe Ry. Co. v. Bryan, 37 S. W. 234; Gulf, etc., Ry. Co. v. Hume, 87 Tex. 211, 27 S. W. 110; M., K. & T. Ry. v. Withers, 16 Tex. Civ. App. 506, 40 S. W. 1073; G., C. & S. F. Ry. v. McCord, 81 S. W. 1032.

The fourth and fifth assignments are without merit. We think the charge of the court upon the question of the measure of damages was sufficient, and not subject to the criticism urged by appellants. The court submitted the following special issues to the jury:

“(4) If in answer to the preceding questions you say the defendant was guilty of negligence in either of the respects inquired about, then state whether or not the market value of said cattle was thereby decreased on the Kansas City market on the 26th day of March, 1912, and to what extent? That is to say, what would be the difference between their market value at that time and place, delivered in the condition they were, and what it would have been, had they been handled with ordinary care, if you find they were not, and delivered within a reasonable time, i£ you find they were not; and in this connection you are instructed that you may take into consideration the appearance of the cattle and their loss of flesh, if any, but not the difference in the market price of such cattle on said market, between what it was on the 25th of March, 1912, and what it was on the 26th of March, 1912, if there was any, as I shall reserve that issue for questions hereinafter asked.”
“(6) Was the market value of said cattle less on the 26th of March, 1912, than it was on the 25th of March, 1912, and, if it was, then say what was the loss to plaintiffs, if any, because of such depreciation in the Kansas City market, if you find there was such.”
The answers of the jury to these issues, and to further special issues requested by defendants, show clearly that they did not assess double damages.

The sixth assignment of error insists that the court erred in permitting the witness Wall to answer the following question, because his answer called for and gave an opinion upon a mixed question of law and fact, and upon a matter which the jury was impaneled to decide: “Q. In the run made with these cattle, was it an ordinary run, or was it slow or fast? A. I called it a very slow run.” If the question be held to be objectionable, the answer was not. G., H. & S. A. Ry. v. Hall, 78 Tex. 169, 14 S. W. 259, 9 L. R. A. 298, 22 Am. St. Rep. 42. A witness may be allowed, although he is not an expert, to testify that a train was running fast or slow. G., H. & S. A. Ry. Co. v. Huebner, 42 S. W. 1021; G., H. & S. A. Ry. Co. v. Sullivan, 42 S. W. 568; G., C. & S. F. Ry. Co. v. Bell, 24 Tex. Civ. App. 579, 58 S. W. 614.

We find no error in the record requiring a reversal of the judgment, and it is therefore affirmed.


author: RAINEY, C. J.

text:
    DALLAS CONSOL. ELECTRIC ST. RY. CO. v. STONE.
    (No. 7,136.)
    (Court of Civil Appeals of Texas. Dallas.
    April 18, 1914.
    Rehearing Denied May 9, 1914.)
    1. Carriers (§ 320) — Injuries to Passengers — Negligence—Question for Jury.
    Whether a street railway company, maintaining exit doors on its cars, was negligent in permitting the door of a car to remain open while a passenger on a crowded car attempted to reach the vestibule and notify the conductor of her desire to alight, causing her to be thrown from the car running on a curve, held under the evidence for the jury.
    [Ed. Note.' — Eor other cases, see Carriers, Cent. Dig. §§ 1118, 1126, 1149, 1153, 1160, 1167, 1179, 1190, 1217, 1233, 1244, 1248, 1315-1325; Dec. Dig. § 320.]
    2. Trial (§ 194) — Instructions—Weight of Evidence.
    A charge, “This is a suit by [plaintiff against defendant] to recover damages alleged in plaintiff’s petition to have resulted * * * by reason of being thrown from one of defendant’s street cars, the fall alleged to have been caused by the negligence of the conductor,” merely calls attention in a brief way to plaintiff’s cause of action and is not on the weight of the evidence.
    [Ed. Note. — Eor other cases, see Trial, Cent. Dig. §§ 413, 436, 439-441, 446-A54, 456-466; Dec. Dig. § 194.]
    3. Trial (§ 296) — Instructions—Issues.
    Where the court covered the defense in its charge, a charge calling attention in a brief way to the cause of action, without referring to the defense, was not prejudicial.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 705-713, 715, 716, 718; Dec. Dig. § 296.]
    4. Carriers (§ 321) — Injuries to Passengers — Evidence—Instructions.
    Where, in an action for injuries to a street car passenger thrown from the ear running on a curve, the evidence showed that to notify the conductor to stop it was necessary for the passenger to make her way through the crowd to near the doorway leading from the car into the vestibule, that the exit door was open, and, if the door had been closed, the accident would not have occurred, and that the conductor knew of the passenger’s position, a charge which enumerated the facts and stated that, if the conductor was negligent in permitting the door to be open, a finding for the passenger was authorized properly submitted the issue of the negligence of the conductor.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1247, 1326-1336, 1343; Dec. Dig. § 321.]
    5. Appeal and Error (§ 1033) — Review-Instructions — Objections.
    Where the facts pleaded and proved, on which plaintiff relied for a recovery, were grouped in a charge submitting the issues, defendant could not complain because it was not necessary for plaintiff to prove all the facts pleaded to obtain a verdict.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4052 — 4062; Dee. Dig. § 1033.]
    6. Carriers (§ 317) — Injuries to Street Car Passengers — Evidence—Admissibility.
    Where, in an action for injuries to a street car passenger falling from the car running on a curve, the conductor contradicted the testimony of plaintiff as to the crowded condition of the car, and stated that plaintiff deliberately walked to the car door to step off and then fell, the testimony of plaintiff that she never at any time got off the car at the place of the accident was admissible to show that she did not attempt to alight at the time of the accident and to show that the conductor was testifying about some other person.
    [Ed. Note. — Eor othej.- eases, see Carriers, Cent. Dig. §§ 1295, 1297-1305; Dec. Dig. § 317.]
    Appeal from District Court, Dallas County; E. B. Muse, Judge.
    Action by Lola Bell Stone against the Dallas Consolidated Electric Street Railway Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Thompson, Knight; Baker & Harris, of Dallas, for appellant. Wood & Wood, of Dallas, for appellee.

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

   RAINEY, C. J.

Lola Bell Stone, while traveling as a passenger on one of appellant’s street cars when turning a curve, was thrown through an open door to the street and injured. This suit was instituted to recover damages for such injuries. She recovered judgment, and the street car company appeals.

The evidence adduced warrants the following conclusions of fact, as stated by appel-lee, viz.:

“Eirst. That, when plaintiff entered the car, all the seats were occupied, and the standing room in the car was so crowded with standing passengers that plaintiff was compelled to stand at a place where she could get nothing to hold to or sustain herself.
“Second. That plaintiff, while standing a few feet from the rear door of the car, without any brace or support, desiring to get off at the next stopping place, could not reach the signal on the side of the car, by reason of the crowded condition of the ear, and, in order to notify the conductor to stop the car at the next stopping place, she made her way through the standing crowd, a few feet to the edge of the doorway leading out of the body of the car into the vestibule, and told the conductor, who saw her there and who was standing in the vestibule, that she desired to get off at next stop.
“Third. That the vestibule of the car is one that closes, and that it has two doors, an entrance door and exit door, both of which could be closed, but both of them were open at the time the plaintiff stationed herself in the doorway of the open door of the body of the car to inform the conductor that she desired to get off at the next stop.
“Fourth. That the car was running at least at an ordinary speed, and, while the plaintiff was in the said doorway of the body of the car, the car entered a sharp curve, and, by reason of the swing of the car, she was thrown out into the street through the open exit door and injured.
“Fifth. That, if the exit door of the vestibule had been closed, the accident would not have occurred.
“Sixth. That the conductor knew of plaintiff’s position in the doorway, caused by the crowded condition of the car, and knew that the car was approaching a curve, and knew that the exit door, within a few feet of plaintiff, was open, and that she might fall through it when the car should reach the curve.
“Seventh. That the car was then in the middle of the block and running, and no necessity for the door to be open.
“Eighth. That plaintiff was not at fault in occupying the exposed position of which the conductor was aware.”

Appellant complains of the refusal of the requested charge, which reads: “You are instructed that the plaintiff has failed to establish any negligence against the defendant, alleged by them to exist, and you are therefore instructed to return your verdict for the defendant.”

The contention is that the evidence fails to establish any actionable negligence on the part' of defendant; therefore it was the duty of the court to instruct the jury to return a verdict in its favor.

We do not concur in the contention of appellant. The negligence relied on by appellee is the leaving of the car door open' under the circumstances. When appellee took passage, all the seats were taken, and she was compelled to stand; the car being crowded. When near -the point of her destination, not being able to reach a signal button to indicate her intention of leaving the car, she crowded back to the rear of the car to inform the conductor of her desire to alight, taking her position near the door in readiness to alight, the ear running rapidly on a curve, and she was thrown through the open door of the car to the street. Had the door been shut, it is clear that appellee would not have been thrown from the car and injured. While the appellant had the right to keep the car door open, we think it was a question for the jury to say under the evidence whether the permitting the door to remain open was the exercise of that degree of care which relieved it from negligence. Railway v. Morris, 60 S. W. 813; Railway Co. v. Williams, 20 Tex. Civ. App. 591, 50 S. W. 737; Railway Co. v. Glover, 92 Ga. 132, 18 S. E. 406; Elliott v. Railway Co., 68 Wash. 129, 122 Pac. 614, 39 L. R. A. (N. S.) 608; Hanson v. Railway Co., 64 N. J. Law, 686, 46 Atl. 718.

In the case of Railway Co. v. Glover, supra, it was said: “There may be no negligence whatever in failing to have gates [on a street car]. * * * But, when a company has provided gates, due diligence might require the company to use them, and failure , to use them might be negligence in the given instance. Whether it would be or not is a question for the jury.”

Again it is , said in the case of Elliott v. Railway Co., supra, which was an’action by a passenger on a street car, one of the grounds of negligence being that the gate at the rear end of the car was open, and he fell out and was injured. There was a city ordinance requiring the gates to be kept closed when the car was in motion. The court said: “This ordinance, the fact that' the accident occurred, and the fact that plaintiff did not open the gate are enough to sustain the finding of negligence. Such ordinances (and it may be questioned whether they do more than affirm a general rule)” wére. “to protect” passengers.

Again it is said in Hanson v. Railway .Co., supra: “If common carriers are to be,allowed to cram their cars with passengers, to their own profit and to the discomfort of the public, .they should be held all the more to a strict and active responsibility to use due care to secure safe entrances and. exits. Otherwise the’obligation of a plain duty will be weakened by * * * their own creation.”

Appellant’s fourth assignment of error is: '“The court erred in the following paragraph of his charge to the jury: ‘This is a suit by Lola Bell Stone, by her father, G. W.’ Stone, as her next best friend, against the Dallas Consolidated Electric Street Railway Company, to recover damages, alleged in plaintiff's petition to have resulted to Lola Bell Stone, by reason of being thrown from one of defendant’s street cars; the fall alleged to have been caused by the negligence of the conductor in charge of the car.’ ” The criticism.of this charge is: That it set out the claims and allegations of plaintiff’s pleading, and those of defendant are ignored, and that it is upon the weight of the evidence and calculated to impress the jury with the importance of plaintiff’s case. We consider the criticism to this part of the charge without merit. The charge does not pretend to set out the pleadings in full, nor does it emphasize any part thereof, but merely calls attention in a short way to plaintiff’s cause of action. It is not upon the weight of the evidence, nor could defendant have possibly been prejudiced by the omission to recite its pleas, as its defense was contributory negligence. The court fully covered that defense in its charge.

The appellant complains of the following paragraph of the charge, viz.: “You are instructed that if you believe from the evidence that on or about the 24th day of February, A. D. 1912, the plaintiff, Lola Bell Stone, boarded one of the defendant’s cars, known as an Ervay car, at or near the intersection of Ervay and Commerce streets in the city of Dallas, to go to Hughes Bros.’ Manufacturing Company on South Ervay street, and further believe that when she boarded said car it was filled with passengers and they were crowded, and that she was unable to get a seat, and she was compelled to stand, and passengers were standing on either side of her, so that she was unable to' catch hold of either side of the car, or brace herself against anything, and further believe that the conductor of said car was in the vestibule of the rear end of the car, and further believe that the car door in the rear end of the body of the car was open, and that the exit door of the vestibule was open, and that the conductor knew both doors were open, or by the use of ordinary care would have known they were open, and further believe that, when the car was nearing the street or place at which Lola Bell Stone desired to get off, she could not reach the side of the car so as to ring the signal, because of many passengers standing in the car, and that she stepped back a short distance and told the conductor she desired to get off at the next stop, and just at that time, or a few seconds thereafter, the car turned on a curve, and that Lola Bell Stone was thereby thrown out of the car onto the ground, and thereby injured as alleged in plaintiff’s petition, and further believe that the conductor was guilty of negligence in permitting the doors to be open under the circumstances, you should find for the plaintiff, unless you find for the defendant under some other instruction given you by the court.” The main contention is: “Where the only issue of negligence (if any) presented by the pleading and proof was the act of the defendant’s conductor in leaving the doors of its car open, the plaintiff was not entitled to recover in any event unless the jury had found that the leaving of the doors open was negligence, and was the proximate cause of the injuries sustained, and the court therefore erred in permitting a recovery in behalf of the plaintiff upon the finding that other immaterial and irrelevant facts and conditions caused and brought about the accident and, injuries of which plaintiff complains.” We think the charge correct. The leaving of the door of the car open was not per se negligence. Whether or not it was negligence depended upon the proof of certain facts in' this instance, such as the court enumerated in its charge. It particularly charges the jury that if' “the conductor was guilty of negligence in permitting the door to be open under the circumstances,” to find for plaintiff. Compress Co. v. Davidson, 35 Tex. Civ. App. 558, 80 S. W. 1032.

It groups the facts pleaded and proved upon which plaintiff relied for a recovery, and, if any of them were not necessary, it placed a greater burden upon plaintiff than was required, and defendant has no cause of complaint.

The sixth assignment of error is: “The court erred in permitting the plaintiff, Lola Bell Stone, to testify over defendant’s objection, timely interposed, that she never at any time got off the car at the place where she fell on the occasion of the accident of which she complains.”

The evidence here complained of was admissible to show that plaintiff did not get off or attempt to alight from the car at the place on purpose. This testimony was introduced after the conductor had testified, contradicting appellee as to the car being crowded, to there being seats for all passengers, to appellee having deliberately walked to the car door, and to stepping off on the ' ground and then falling. The evidence was also admissible as a circumstance to show that the conductor had in mind a different occasion, and that he was testifying about some lady other than appellee.

The assignments relating to the argument of appellee’s counsel to the jury present no reversible error. They are of such a nature that the effect on the jury would not have produced a verdict other than the one returned.

The judgment is affirmed.


author: CARL, J.

text:
    RYMAN et al. v. PETRUKA.
    (No. 5274.)
    (Court of Civil Appeals of Texas. San Antonio.
    April 29, 1914.)
    1. Limitation of Actions (§ 99) — Suit to Set Aside — Fraud.
    Where a grantee in a deed, duly acknowledged, delivered, and recorded, went into possession and dealt with the property as his own, the right of the grantors to sue to set aside the deed on the ground of fraud was barred by limitations, where the grantors took no action during their lifetime, though they lived more than five years, in the absence of anything to show that they did not know of the fraud at the time •of the execution of the deed.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 477-479; Dec. Dig. § •99.]
    :2. Acknowledgment (§ 62) — Impeachment.
    Where a deed executed by husband and wife was acknowledged in proper form, and the notary who took the wife’s acknowledgment testified that he acquainted her with the contents of the deed, evidence that the wife, who was Polish, could not talk much English, .and that the notary could not talk Polish, did not justify the setting aside of the deed.
    [Ed. Note.' — Pot other, cases, see Acknowledgment, Cent. Dig. §§ 345-347; Dec. Dig. § 62.]
    3. Limitation of Actions (§ 103) — Existence of Trust — Repudiation.
    Where parents holding property in. trust .as common family property of all the children, conveyed it to a son, and the deed was duly acknowledged, delivered, and recorded, and the son entered into possession and dealt with the property as his own, a suit by the other children to set aside the deed brought over nine years after the execution and recording of the •deed, and the taking of possession by the son, was barred by limitations.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 500, 506-510; Dec. Dig. § 103.]
    4. Limitation of Actions (§ 73) — Disabilities — Coverture.
    Where female children were married and of legal age when their brother obtained a deed from the parents and took possession and set up an adverse claim to common family property, limitations ran against the female children by the removal of disability of coverture.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 399-412; Dec. Dig. § 73.]
    Appeal from District Court, Matagorda County; Sam’l J. Styles, Judge.
    Action by Annie Ryman and others against Thomas Petruka. From a judgment for defendant, plaintiffs appeal.
    Affirmed.
    Gaines & Corbett and W. D. Wilson, all •of Bay City, for appellants. W. S. Holman, of Bay City, and John T. Duncan, of La Grange, for appellee.

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

   CARL, J.

Appellants, Annie Ryman, .Mary >Gola, Lizzie Sherrer, Kate Lecompte, and Rosa Gastmeyer, joined by their husbands, sued their brother, Thomas Petruka, ap-' .pellee, for an interest in about 2,000 acres- of .land in Matagorda qounty and about 1,000 head of cattle and their increase. The plaintiffs and defendant below are the children of Joseph and Caroline Petruka, deceased. On May 23, 1902, Joseph and Caroline Petruka executed a deed, wherein and whereby they conveyed all of their land to appellee, and appellants charge that this deed, was obtained by fraud of appellee, and that it was without consideration, and that one of the expressed considerations, viz., the caring for his parents, was unperformed, to the extent that his mother died of neglect. It was further charged that Caroline Petruka did not understand English, and that the notary who drew the deed and took the acknowledgment did not understand the Polish language; that she could not and did not write her name, and that she was under the impression that the deed conveyed only the 200-acre homestead. And it was alleged that there had never been any administration upon the estates of Joseph and Caroline Petruka, wlio, it is claimed, died intestate.

Appellee answered by general demurrer, general denial, and by special pleadings that he had actually earned the property conveyed to him, and that what interest his father and mother had was conveyed in consideration of their appreciation of his care, support, and attention to them. Appellee further pleaded that his father and mother left a will in which they gave him all their property, and bequeathed to appellants each the sum of $400, and alleged and exhibited the receipts of all of them, except Annie Ryman, and shows that, while the will has not been admitted to probate, it has been filed, but was not probated, because the county judge was disqualified from acting, having been attorney for appellee. He also pleaded three, four, five and ten years’ limitation as to the land and the right to sue therefor. It is alleged that the receipts executed were in full of the interest in the estate of Joseph and Caroline Petruka.

In answer to the pleas of limitation, appellants pleaded coverture, and that the land and cattle were earned by appellants in connection with Joseph and Caroline Petruka, their parents, but that the title was taken in their parents’ name, and held in trust for all of them; that the will was witnessed by Julia Petruka, appellee’s wife, .who was disqualified to act, and that the will is not properly executed; and that neither Joseph nor Caroline Petruka understood the deed executed, and that same was procured by fraud of appellee. It was further alleged that the receipts were not intended to be in full settlement, or were other than receipts to the extent of $400.

Appellee replied in a supplemental answer, excepting generally, and specially that the right to repudiate said deed was solely in Joseph and Caroline Petruka, and that more than four years had elapsed between the time same was executed and recorded and the death of the parents, who alone had the right to repudiate same. He also pleaded 'that the will was a family settlement, and disposed of their property, and that they had given their children all ■ they intended they should have, and that the land and personal property were given to appellee during their lifetime and at about the date of the execution of the deed, and turned over to him the property in 1902 at the date of the deed.

The court instructed the jury to find for 'appellee, which was done, and judgment thereupon was entered for the defendant at the conclusion of the trial.

The suit was filed September, 1911, and the deed executed by Joseph and Caroline Petruka to Thomas Petruka was dated May 21, 1902, and was filed for record May 23, 1902, in the office of the county clerk of Mat-agorda county. Caroline Petruka died some time, in September, 1907, and Joseph Petru-ka died May 23, 1909. So it will be seen that Mrs. Petruka lived over five years after the execution and recording of said deed, and Joseph Petruka lived seven years; and there is no evidence that either of them ever expressed any dissatisfaction with the deed or took any steps to set the same aside. During all those years that deed was of record where every one might read it; and on the same day the deed was executed, the will was made. The undisputed evidence shows that, from and after the deed and will were executed, the appellee took and held possession of all of the property, both real and personal, and dealt with it as his own. The deed was of record, which was constructive notice to every one of its contents, and the testimony of appellants shows that they actually knew, or ought to- have known, from the date of the deed and will that Tom Pe-truka “got everything,” as they put it. All of them, except Mrs. Ryman, signed receipts in full for the $400 bequeathed to them in the will, and Mrs. Ryman thought she ought to receive more. The petition does not charge that Joseph and Caroline Petruka did not know of the deed actually made prior to their death, nor is it sought to excuse them from failing to bring a suit or to take steps to rectify the alleged wrong before they died. The fraud, if any was practiced, was against them, and not against the ■ children. It is not alleged that they did not know the contents of the deed and will before they died, nor that they did not know from the very day these instruments were executed up to the time they died that Tom Petruka had gone into possession and was actually claiming both land and personal property.

The deed introduced shows ample consideration to support it, and shows that it is an executed contract. That deed reads, in part, as follows: “The State of Texas, County of Matagorda. Know all men by these presents, that we, Joseph Petrucio and his wife, Catherine Petrucio, of said county and state, for and in..consideration of the sum of two thousand dollars to us in hand paid by Thomas Petrucio, and the further consideration of the fact that the said Thomas Pe-trucio, our said son, has remained with and taken care of us in our old age and managed and taken care of our property for us without any compensation, we have granted,” etc.

Suppose that Joseph and Caroline Petruka could have set this deed aside as soon as it was placed upon record for them, the law charges them with notice of its contents, if they did not actually know of the same; they did not do so, and limitation would run against them from that date. And both of them were barred from maintaining a suit even at the time Mrs. Petruka died, unless excused by pleading and proof that they did not discover the fraud, or could not have done so by the exercise of ordinary care.

The deed, as written and acknowledged, is in proper form, and the notary who took Mrs. Petruka’s acknowledgment says he acquainted her with the contents of the deed. And the evidence offered to set that deed aside is totally insufficient! Summed up, it is merely to the effect that she could not talk-much English, and that the notary could not talk the Polish language. Deeds executed with all the formality of the law will not be set aside, except upon clear and convincing evidence.

If it be true that, as contended, Joseph and Caroline Petruka held the property in trust, as the common family property which plaintiffs helped- to earn, then appellants would have limitation' running against them from May 21, 1902, until September, 1911, when the suit was filed; for .they knew from the date of the deed and will, as well as the receipts made out, and which all of them but one signed, that Tom Petruka claimed and held everything.

But the parties all knew, or ought to have known, from May 23, 1902, the claims Tom Petruka was making, and that he held all the property as his own. It is not enough to say that plaintiffs were laboring under coverture; for they must know that several years ago a law was passed which took away this defense as to an adult married woman and permitted limitation to run against her, and plaintiffs were all married and of legal age when appellee took the deed and set up adverse claim to all the property in 1902. R. S. art. 5684; Shook v. Laufer, 100 S. W. 1042.

No sufficient legal excuse is pleaded or proved why Joseph and Caroline Petruka did not discover and correct the alleged fraud;’ and, upon the showing made, they were themselves barred at the date of Mrs. Petruka’s death. And, if plaintiffs ever had any right to maintain a suit, they were barred before they brought it, and the court properly instructed a verdict for defendant.

Judgment is affirmed.


author: HIGGINS, J.

text:
    UNITED BENEVOLENT ASS’N OF TEXAS v. LAWSON et al.
    (No. 338.)
    (Court of Civil Appeals of Texas. El Paso.
    April 23, 1914.
    Rehearing Denied May 14, 1914.)
    1. Appeal and Error (§ 742)—Briefs—Assignments of Error—Propositions.
    Under Court of Civil Appeals Rule 30 (142 S. W. xiii), requiring that each point under each assignment of error shall be stated as a proposition unless the assignment itself sufficiently discloses the same, assignments that the verdict is contrary to law and that the verdict and judgment are not supported by the evidence fail to show wherein the verdict and judgment are so defective, and, not being presented with appropriate subjoined propositions, are insufficient to present any question for review.
    [Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    2. Insurance (§ 813)—Benefit Certificate —Actions—Parties.
    Where defendant issued a benefit certificate insuring the life of deceased in favor of her husband, from whom deceased was divorced, the husband was a proper, but not a necessary or indispensable, party in a suit by deceased’s children to recover the amount of the certificate; and hence plaintiffs were entitled to dismiss as to the husband if they so desired.
    [Ed. Note.—For other cases, see Insurance, Cent. Dig. § 1994; Dec. Dig. § 813.]
    3. Appeal and Error (§ 544)—Review-Record— Bill of Exceptions—Necessity.
    An order overruling a plea of privilege, though noting an exception, is not reviewable in the absence of a bill of exceptions disclosing the facts on which the court acted.
    [Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 2412-2415, 2417-2420, 2422-2426, 2428, 2478, 2479; Dec. Dig. § 544.*]
    4. Appeal and Error (§ 500)—Scope of Review-Rulings.
    An assignment to the overruling of a plea setting up the pendency of a suit in another county on the same cause cannot be sustained, where it does not appear that any action was taken by the trial court on the plea, and the transcript does not show any exception with relation thereto.
    [Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 2295-2298; Dec. Dig. § 500.]
    Appeal from District Court, Harris County; Chas. E. Ashe, Judge.
    Action by Willis W. Lawson and others against the United Benevolent Association of Texas. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    Morris Rector, of Ft. Worth, for appellant. Ward & Ward, of Houston, for appellees.

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

   HIGGINS, J.

Appellant issued its benefit certificate insuring the life of Margaret E. Lawson in favor of her husband, James W. Lawson. The parties were afterwards divorced, and on August 21, 1912, Mrs. Lawson died. This is a suit by her children to recover of the insurer the amount of the certificate.

The first assignment is that the verdict is contrary to the law; the second is that the verdict and judgment are not supported by the evidence. They are submitted as propositions. Under the former practice, assignments complaining of the insufficiency of the evidence or that the judgment was contrary to the law were required to particularize and point out in what respect the evidence was insufficient or the judgment contrary to the law. Possibly this-rule as to the sufficiency of such an assignment has been changed by Acts of 1913, Reg. Session, p. 276. But it does not alter Rule 30 of the Courts of Civil Appeal (142 S. W. xiii), which requires that each point under each assignment shall be stated as a proposition-unless the assignment itself sufficiently discloses the same. Assignments of such general nature as those indicated do not disclose the point, and in such case the points in the assignment must be presented by appropriate subjoined propositions. Since the-assignments themselves do not disclose the point, they cannot be treated as propositions, and for failure to support same by appropriate propositions, they are not entitled to-consideration and will not be considered.

Plaintiffs originally made James W. Lawson a party defendant and thereafter entered a dismissal as to him. He was a proper but not an indispensable or necessary party. Plaintiffs had a right to dismiss as to-James W. Lawson, if they saw fit to do so. Such dismissal did not in any wise affect appellant’s right, by cross-action against him, to have had him retained as a party and the-conflicting claims of the parties, if any, adjudicated. By proper and timely action appellant could have preserved this right. If' it did not do so, it was its own fault. The third assignment, which complains of plaintiff’s dismissal as to James W. Lawson, is-therefore overruled.

The fourth assignment complains of the-overruling of a plea of privilége. The order-overruling the same notes an exception thereto, but there is no bill of exception disclosing the facts upon which the court acted, and in the absence thereof the matter cannot be-reviewed.

The fifth assignment is submitted as a proposition. As such it is insufficient because it does not disclose the point or reason why it is contended the court erred in the action to which the assignment relates. Eor this reason it -will not be considered.

The sixth assignment complains of the-action of the court in overruling a plea setting up the pendency of a suit in Tarrant county based upon the same certificate upon-, which the present suit is based. Our attention is not called to any action of the court upon such plea, nor of any exception in relation thereto, and our examination of the transcript does not disclose any. In this condition of the record the assignment of necessity-must be. overruled.

The petition is not subject to a general demurrer as is contended under the seventh assignment. Hatch v. Hatch, 35 Tex. Civ. App. 373, 80 S. W. 411; Cheeves v. Anders, 87 Tex. 287, 28 S. W. 274, 47 Am. St. Rep. 107; Schonfield v. Turner, 75 Tex. 324, 12 S. W. 626, 7 L. R. A. 189. Lawson and Bransford were not indispensable parties, for which reason the eighth assignment is overruled.

The ninth and tenth assignments are not supported by statements as the rules require and are not considered.

The eleventh assignment is submitted as a proposition. As such it is multifarious. Neither is it supported by such statement as the rules require. It is not considered.

Affirmed.


text:
    WESTERN UNION TELEGRAPH CO. v. CATHEY.
    (No. 5267.)
    (Court of Civil Appeals of Texas. San Antonio.
    April 29, 1914.)
    1. Telegraphs and Telephones (§ 74) — Actions for Delay — Instructions.
    Where plaintiff claimed that defendant’s failure to deliver on the 15th a message announcing the death of his mother prevented him from attending her funeral, but claimed no damages because of defendant’s failure to deliver it on the following day, it having not reached the delivering office till the 16th, a charge to find for plaintiff, if defendant was negligent in delivering the message within a reasonable time after receipt at its destination, is erroneous, though other charges stated that plaintiff could only recover for negligence occurring on the 15th, for such charge might have misled the jury.to believe that the court was of the opinion that the message was received at its destination on the 15th instead of the 16th, and tended to allow a recovery for negligence not counted upon.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 77; Dec. Dig. § 74.]
    2. TRIAL (§ 296) — INSTRUCTIONS—EEBOE.
    Where correct charges do not refer to or modify an erroneous charge which is in direct contradiction, the two cannot be reconciled and judgment must be reversed.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 705-713, 715, 716, 718; Dec. Dig. § 296.]
    3. Trial (§ 260) — Instructions—Request.
    The refusal of a requested charge covered by the charge given is not error.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dee. Dig. § 260.]
    4. Telegraphs and Telephones (§ 37)— Transmission — Duty oe Telegraph Company.
    A telegraph company is bound only to exercise ordinary care to transmit and deliver a message within a reasonable time and is not under the absolute duty of so doing.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 23, 24, 29, 30, 32; Dec. Dig. § 37.]
    Appeal from District Court, Austin County ; Frank S. Roberts, Judge.
    Action by Z. W. Cathey against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    Hume & Hume, of Houston, for appellant. C. G. Krueger, of Bellville, for appellee.

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

   FLY, C. J.

This is a suit for damages arising from a failure to deliver a message informing appellee of the death of his mother in Arkansas, and by such failure preventing him from attending her funeral. The cause was tried by jury and resulted in a verdict and judgment for appellee in the sum of $900.

It was alleged in the petition that the message was delivered to an agent of appellant at Huntington, Tex., by Knight and Lynn, brothers-in-law, to appellee to be transmitted to him, care of Dr. Steck, at Bellville, Tex.; that the message was delivered to said agent at about 10 o’clock a. m. on December 15, 1911; that if the message had been promptly delivered to Dr. Steck, the latter would have immediately notified appel-lee of its contents, or would have sent the message to him at Buckhorn, where- he resided, some six or seven miles from Bell-ville ; that Steck lived in Bellville; that there was a telephone line from Bellville to Buckhorn; and it was further alleged: “Plaintiff further shows to the court that, if the defendant had promptly transmitted and delivered said message as it was bound to do, this plaintiff could have and would have taken the H. & T. C. Railway Company’s passenger train at Hempstead at about 11 o’clock p. m. of December 15, 1911, and gone to Dallas, Tex., where he could and would have taken the Texas & Pacific Railway Company’s passenger train'and gone to Tex-arkana, and at Texarkana he would and could have taken the Iron Mountain Railway Company’s passenger train and gone to Prescott, Ark., and at Prescott, Ark., he would and could have taken a team or automobile and gone to his mother’s home in time to have viewed her remains and attended her funeral, or the plaintiff could have taken the G., C. & S. F. Railway Company’s passenger train at Bellville, Tex., at 11:30 p. m. December 15, 1911, and reached Dallas at about 7 a. m. December 16, 1911, and at Dallas could have taken the Texas & Pacific passenger train and gone to Texarkana, and at Texarkana could and would have taken the Iron Mountain Railway Company’s passenger train for Prescott, Ark., where he would and could have taken a team and reached the home of his mother on the morning of December 17, 1911, in time to have viewed her remains and attended her funeral, as the trains above mentioned made close connections with each other. Plaintiff, further shows to the court that he could and would have made and he can now make the trip either from Bellville, Tex., or from Hempstead, Tex., by either of the routes above stated in 22 or 23 hours time.”

The evidence showed without contradiction that the message was not received at Bellville, by tbe agent at that place, until on tbe morning of December 16, 1911, between 8 and 9 o’clock. Tbe message was never delivered, and if it bad been promptly delivered after reaching Bellville, to appellee, it would have availed him nothing, as be places bis cause of action on tbe failure to deliver tbe message on December 15, 1911, so that be could have left on tbe night of that day at certain hours. It is not claimed that there was any causal connection between the negligence in delivery on December 16th and tbe damages claimed, but tbe cause of action rests on a failure to deliver on December 15th. Tbe court, at tbe reguest of appellant, instructed tbe jury that appellee bad no cause of action unless tbe message was received by appellant in •time to have transmitted it to Steck at Bell-ville before 6 o’clock p. m. on December 15th, tbe hour at which tbe office of appellant at that place closed. All of tbe evidence tended to show that, if there was delay that resulted in damage, it arose before tbe message reached Bellville, and also showed that the message did not reach Bellville until the morning of December 16th.

With tbe evidence making out that state of case, tbe court instructed the jury to find for appellee if appellant was negligent in delivering tbe message to Steck “within a reasonable time after having received tbe same at Bellville.” That was error, and it was not corrected by charges to tbe effect that ap-pellee could only recover for negligence on December 15th, because it may have caused tbe jury to believe that the court was of tbe opinion that, although the agent had sworn that the message was not received until the morning of December 16th, it was received by him on December 15th. The erroneous charge was directly in conflict with other parts of the court’s charge as well as the special charge. They cannot be reconciled and must lead to a reversal. Baker v. Ashe, 80 Tex. 356, 16 S. W. 36. When a positive error is found in one paragraph of the charge of the court, it is not corrected by another paragraph, which does not refer to and modify the erroneous charge. Railway v. Robinson, 73 Tex. 277, 11 S. W. 327; Reed v. W. U. Telegraph Company, 31 Tex. Civ. App. 116, 71 S. W. 389; Railway v. Rodgers, 89 Tex. 675, 36 S. W. 243.

The second assignment of error is overruled. The court charged in effect as requested in the charge, the rejection of which is complained of in the assignment.

A telegraph company is under obligations to exercise ordinary care in the transmission and delivery of messages committed to its care, and the court erred in charging the jury that: “Whenever a telegraph company accepts a message for transmission and delivery, it is its duty to deliver the same within its free delivery limits within a reasonable time after the same is received, but it is not bound to deliver such message beyond its free delivery limits.” Instead of holding appellant to the exercise of ordinary care in the transmission and delivery of the message, the charge imposed upon it the absolute duty, of delivering the message within a reasonable time. W. U. Telegraph Co. v. Rosentreter, 80 Tex. 406, 15 S. W. 1048, 26 Am. St. Rep. 759; W. U. Telegraph Co. v. Hays, 63 S. W. 171; Hargrave v. Telegraph Co., 60 S. W. 687.

The other assignments of error are overruled.

The judgment is reversed, and the cause remanded.


author: MOURSUND, J.

text:
    LAKESIDE IRR. CO. v. KIRBY.

    (No. 5282.)
    (Court of Civil Appeals of Texas. San Antonio.
    April 15, 1914.
    Rehearing Denied May 13, 1914.)
    1. Watees and Wateb Courses (§ 152)— Prescriptive Rights — Pleading.
    It having been only three years before commencement of the injunction suit when defendant was incorporated, and its answer not alleging that its predecessor in title claimed or exercised the sole right to pump water out of the lake, but merely that it had done so, the issue of it having acquired a prescriptive right to take all the water from the lake for irrigation is not raised.
    [Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. §§ 156, 157; Dec. Dig. § 152.]
    2. Waters and Water Courses (§ 152)— Prescriptive Right — Evidence.
    Evidence in an injunction suit held insufficient to show a prescriptive right, by exercise thereof for ten years by defendant and its predecessor, prior to the suit, to take all the water from a lake for irrigation.
    [Ed. Note. — For other eases, see Waters and Water Courses, Cent. Dig. §§ 156, 157; Dec. Dig. § 152.]
    3. Pleading (§ 216) — General Demurrer to Petition.
    Matters not alleged in the petition cannot be considered in support of a general demurrer to it.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 535-539; Dec. Dig. § 216.]
    4. Waters and Water Courses (§ 114)— Diversion — Injunction — Adequate Remedy at Law.
    The remedy by action for damages for diversion of waters, not being as practical and efficient to the ends of justice and its prompt administration as that of injunction, is inadequate.
    [Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. §§ 124, 125; Dec. Dig. § 114.]
    5. Waters and Water Courses (§ 114)— Diversion — Injunction—Adequate Remedy at Law.
    Under the statute an injunction is authorized though there be an adequate remedy at law.
    [Ed. Note — For other cases, see Waters and Water Courses, Cent. Dig. §§ 124, 125; Dec. Dig. § 114.]
    6. Waters and Water Courses (§ 247)— Injunction Suits — Necessary Parties.
    Persons whom defendant has contracted- to furnish water, without any provision as to the source thereof, are not necessary parties to a suit to enjoin it from pumping from a lake more water than it pumps into it; an injunction not preventing it from fulfilling the contracts, or prejudicing their rights thereunder.
    [Ed. Note. — Por other eases, see Waters and Water Courses, Cent. Dig. § 314; Dee. Dig. § 247.]
    7. Waters and Water Courses (§ 240)— Statutory Appropriation.
    An irrigation company was not a statutory appropriator of waters from a lake, though it pumped water from a river into a canal leading into a lake, and then pumped from the lake; its irrigation affidavit stating the water was to be appropriated from the river.
    [Ed. Note. — Por other cases, see Waters and Water Courses, Dec. Dig. § 240.]
    8. Waters and Water Courses (§ 109)— Naturae Lakes — Diversion — Rights oe Owners op Bed.
    A person owning part of the bed of a natural lake, valuable with the water on it and worthless without it, has a right to have the water maintained at its natural level, unless lowered by another riparian owner for riparian uses; so that the owner of another part of the bed may not divert the water to irrigate non-riparian lands, when this injuriously affects the rights of the first owner.
    [Ed. Note. — Por other cases, see Waters and Water Courses, Cent. Dig. §§ 118, 119, 121; Dec. Dig. § 109.]
    9. Judgment (§ 252) — Prayer.
    Relief other than that specifically prayed for may .be granted under the further prayer for general relief.
    [Ed. Note. — Por other cases, see Judgment, Cent. Dig. §§ 441, 442; Dec. Dig. § 252.]
    Appeal from District Court, Colorado County; M. Kennon, Judge.
    Suit by John H. Kirby against the Lakeside Irrigation Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    W. L. Adkins and J. J. Mansfield, both of Columbus, for appellant. A. J. Wirtz, of Eagle Lake, and Ring, Carothers & Brown, of Houston, for appellee.

       Application for writ of error pending in Supreme Court.

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

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

   MOURSUND, J.

This appeal is from a judgment permanently and perpetually enjoining appellant from diverting water from Eagle Lake in such a way as to lower the level thereof and from pumping any water out of said lake unless it concurrently pumps an equal amount of water into the same. Eagle Labe is a natural lake with a normal area of 1,250 acres or more, entirely owned by private citizens. The appellee owns 700 acres out of the P. Reels survey, including 552 acres covered by the waters of the lake 'and 148 acres bordering on the lake. Appellant owns 452 acres out of the McLain & Mc-Nair league covered by the waters of the lake and adjoining appellee’s land. The remainder of the lake is owned by other persons. Appellant, an irrigation company chartered under the laws of this state, owns a pumping plant on the Colorado river and carries the .river water about two miles through,a ditch to Moore’s branch, an arm of the lake on the west side. On the east side of the -lake the appellant has another pumping plant by which it pumps the water through its canals to consumers owning rice fields on surveys not-riparian to the lake. Appellant was incorporated in 1909, at which time it bought the pumping plants and canal system of the Eagle Labe Rice Irrigation Company. Thereafter, until the spring of 1912, it pumped the lake almost dry each year. At said time the lake was full, and when appellant began, pumping appellee filed this suit,' and on May 24, 1912, a temporary injunction was granted restraining appellant from further lowering the level of the 'waters of the lake. Appellant’s river pump has a capacity of 40,000 gallons per minute, and its two lake pumps together are capable of pumping 35,000 gallons per minute, and since May 24, 1912, appellant has pumped into the lake as much water as it pumped out. Appellee alleged that his 700 acres constitute a very valuable hunting and fishing preserve when the lake is in its normal condition, and will produce an income of about 82,500 from the sale of hunting and fishing privileges, but, if the water is unduly lowered, the tract becomes useless and valueless, and rank weeds and vegetation spring up in the bottom, choking same up and doing permanent and irreparable injury thereto ; that defendant owns no farming land riparian to or adjacent to the lake, and does hot use any water pumped from said lake to irrigate land riparian to same, but carries the water to lands remote therefrom, where it sells the water to various nonriparian owners to irrigate their rice lands. These allegations were sustained by proof. It was also alleged that plaintiff owns valuable farming land bordering on the lake. The proof showed that plaintiff and one Womack own a 1,000-aere tract in the McLain & McNair tract; their land being close to the lake, so that when it was extra full the water touched said land.

Defendant filed a general demurrer, a special exception, a general denial, a plea of .prescriptive right to use all the water, and pleaded: That its vendor, the Eagle Lake Rice Irrigation Company, obtained a charter in 1900 as a public service irrigation company, and complied with title 73, c. 2,. of the Revised Statutes, in establishing' its canals and right to take water from Eagle Lake, which charter provided that “the general office of said corporation and its principal place of business shall be at Eagle Lake, Colorado county, Texas, and the head gate of said canal is to be constructed on the east bank of the Colorado river near the west corner of the McLain & McNair league, in Coloradp county, Texas, and thence the water is to be conducted in a surface canal into a natural lake, named Eagle Lake; another head gate and pumping station is to be erected on the east margin of the said Eagle Lake on or near the east corner of the said league, —from thence the canal is to be run eastwards with two ’ prongs, total aggregate length about twenty miles.” That said company operated said irrigation plant for several years, and more than 12 years preceding the filing of the suit defendant bought the property and |ranehises of said company, procured a charter for the purpose of operating same, and ever since has operated said plant and taken water from said lake, and by such purchase became the owner of 452 acres of land, covered by a large part of the waters of said lake; one line of said land •extending across the lake near its center, the defendant owning land on both sides of the lake at the termini of said line. That defendant went into actual possession of said lands, right of ways, canals, pumping plant, •and property, and has ever since continued in possession thereof, operating the pumping plants and taking water from the lake for irrigation purposes, having the peaceable, open, notorious, exclusive, uninterrupted, and adverse possession of said canals and property with the knowledge of plaintiff and those un-4er whom he claims, extending over a period ■of more than Í2 years next preceding the filing of the suit, and has been the sole taker •of water from said lake "during said time, wherefore defendant again asserted its plea ■of prescriptive right. The final judgment, appealed from, was rendered on September 18, 1913.

By its first assignment of error appellant contends that the judgment is erroneous because the evidence shows that'it had acquired a right by prescription to take all the water from Eagle Lake for the purposes of irrigation. This contention cannot be sustained. Appellant failed to plead that its predecessor in interest claimed or exercised the sole right to pump water out of ■said lake, but merely that appellant had done so, while the proof shows that appellant did not come into existence until March, 1909. But if the pleading had raised the issue, the evidence fails to show that the Eagle Lake Rice Irrigation Company and appellant together exercised for ten years prior to the filing of the suit the rights so claimed. Appellee acquired title to his 700 acres in 1908 from the estate of Wm. Dunovant. Dunovant pumped water out of the lake in 1901 and 1902, and was pumping in August, 1902, when he died. His administrators pumped water out of the lake in 1903 with three pumps, one 20-ineh, one 18-inch, and the other a 12-inch pump. The 20-inch pump had a capacity of about 15,000 gallons per minute. This suit was filed May 12, 1912. It further appears that appellant has never denied or questioned the right of Dunovant or Kirby to the waters of the lake. During some years appellant’s predecessor pumped practically all of its water from the river for the entire year. In 1906 or 1907, Kirby had a conversation with the president of the Eagle Lake Rice Irrigation Company, in which he complained of the lowering of the water by said company, and said president told him they had not put in quite as much water as they had taken out, but that the matter would come out all right. Kirby’s understanding of said president’s statement was that such company was to put in as much water as it took out, and no claim was made to him that the company had the right to pump all. the water out of the lake. The testimony is wholly insufficient to show any prescriptive right to pump all the water out of the lake.

The second assignment complains of the overruling of the general demurrer. The first proposition reads as follows: “As the unappropriated waters of the streams of Texas belong to the public for the purposes of irrigation, if appellee owns land susceptible of cultivation riparian to Eagle Lake as alleged by him then all water not reasonably needed or appropriated by appellee, to be proved by him, for domestic purposes, stock raising, and to irrigate such land, is subject to appellant’s statutory .appropriation, or where it appears that appellee is not making, or contemplates the making, of any such use, appellant’s appropriation cannot be enjoined.”

We find no allegations in the petition to which this proposition can be applied. The petition discloses no statutory appropriation by appellant, nor any allegation that the waters of the lake are subject to appropriation under the statute.

By the second proposition it is contended the allegations show that appellee had a legal remedy for damages and was therefore not entitled to an injunction. The remedy of suit for damages would be inadequate, under the facts alleged; that is, not as practical and efficient to the ends of justice and its prompt administration as would that of injunction. In addition, under our statute an injunction is authorized though there be an adequate legal remedy. Sumner v. Crawford, 91 Tex. 129, 41 S. W. 994; Sullivan v. Dooley, 31 Tex. Civ. App. 589, 73 S. W. 82; Santa Rosa Irrigation Co. v. Pecos River Irr. Co., 92 S. W. 1015.

The third assignment reads as follows: “The, court erred in rendering judgment enjoining the defendant, Lakeside Irrigation Company, from furnishing water from Eagle Lake to the lands of various persons who are entitled to such water under contracts with defendant to furnish same as long as defendant’s canal should be operated, and which persons are not parties to this suit.”

The contracts do not provide that water is to be furnished from Eagle Lake, and the appellant is not restrained from furnishing water to those with whom it has contracts. It is undisputed that said persons have no riparian rights in the waters of the lake, and we cannot see that it is any concern of theirs whether appellant is required to pump into the lake as much water as it takes out. The injunction does not prevent the fulfillment of their contracts, or prejudice their rights under such contracts, and they were not necessary parties to this suit. Biggs v. Miller, 147 S. W. 637. In the case of Matagorda Canal Co. v. Markham Irr. Co., 154 S. W. 1177, it was alleged by plea in abatement that certain persons, naming them, had contracts with defendant, and if defendant was enjoined from taking water from the Colorado river the crops of the parties would be destroyed, and it was further alleged that said persons had riparian rights superior to any held by plaintiff. It was held that said persons were necessary parties to the suit. In said case as well as that of Watkins Land Co. v. Clements, 98 Tex. 578, 86 S. W. 733, 70 L. R. A. 964, 107 Am. St. Rep. 653, the injunction sought would have directly prevented the fulfillment of the contracts held by persons not parties to the suit. In this case the evidence shows that all contracts were complied with during the pendency of the injunction, and that the injunction does not affect such contracts. The assignment is overruled.

The fourth assignment reads as follows: “The court erred in rendering judgment restraining defendant from pumping any water out of Eagle Lake unless it concurrently pumped an equal amount of water into Eagle Lake, for the reason that there are no pleadings to justify such restraint, and no prayer therefor by plaintiff.”

By the first proposition it is contended that as appellee failed to allege that he was sole owner of the bed of the lake or the necessity for use of all the waters for domestic purposes, stock raising, or reasonable irrigation of eultivatable land riparian thereto, he has stated no grounds for a judgment enjoining appellant from taking any water out of the lake, and in this connection it is asserted that appellant is a statutory appropriator of the waters of the lake. The irrigation affidavit of the Eagle Lake Rice Irrigation Company, under whom appellant holds, states that the water is to be appropriated from the Colorado river and not from Eagle Lake; hence we may discard the theory that appellant is a statutory appropriator of the waters of the lake. Article 4996, Rev. Stat. 1911. , The case of Biggs v. Lee, 147 S. W. 709, therefore, has no application to the facts of this case, as it merely holds that a riparian owner as against a statutory appropriator does not have the right to have all the water flow past his land. The statutes do not mention natural lakes, and it may be doubted whether any designation made can be construed to cover such lakes. While it is alleged that appellee has eultivatable land riparian to the lake, it is not alleged that he had irrigated or desired to irrigate any land; but he alleged that appellant had no eultivatable land riparian to the lake and that it was pumping the water to lands not riparian thereto. Appellant contends that it can take all thé water for irrigation purposes because such taking does not interfere with appellee’s use of. same for irrigation, domestic purposes, or stock.raising, as he does not allege that he is using it for either of such purposes. On the other hand, appellee contends that under our decisions, being a riparian owner, he is .entitled to have the lake remain in its normal condition, subject only to the right of other riparian owners to take from it such water as they need for their domestic uses and for their stock and to make a reasonable use thereof for irrigating their riparian lands.

In the case of Watkins Land Co. v. Clements, 98 Tex. 589, 86 S. W. 738, 70 L. R. A. 964, 107 Am. St. Rep. 653, the court said: “Plaintiffs have not the right to apply all of the water flowing from Toyah Spring or along that creek to their riparian lands, but have a right in common with others to make a reasonable use of the water. Neither have they the right to appropriate any of that water to nonriparian land which they may own, although it may adjoin land owned by one of them which is entitled to the use of the water. Boehmer v. Big Rock Irr. Dist., 117 Cal. 27 [48 Pac. 908], Nor has either of them the right to sell water to others to irrigate lands not riparian. Ormerod v. Todmorden, L. R. 11 Q. B. Div. 162; Gardner v. Village of Newburgh, 2 Johns. Ch. (N. Y.) 162 [7 Am. Dec. 526]; Higgins v. Water Co., 36 N. J. Eq. 542.” As we understand this statement, it fully sustains appellee’s contention. See, also, Santa Rosa Irrigation Co. v. Pecos River Irr. Co., 92 S. W. 1014. Where it is shown, as in this case, that a person owns a part of the bed of a natural lake, which is very valuable with the water upon it and worthless without it, we think such person has the right to have the water of the same maintained at its natural level, unless that level is disturbed by another riparian owner for riparian uses recognized by our decisions, and that another owner of part of the bed of the lake cannot be permitted to divert the water to irrigate nonriparian lands, when it is shown that such diversion injuriously affects the rights of the owner of the other part of the lake. The contention that the water should be divided between the owners of the land covered by the lake in proportion to their ownership of such land cannot be sustained. To do so would be to permit the diversion of the water to nonriparian purposes to the injury of the other riparian owner. Appellee is entitled to the enjoyment and use of his land with the opportunities, advantages, and benefits thereto accruing by reason of a portion thereof being covered by a natural lake, subject only to riparian rights of others, and even if it was sought to irrigate riparian lands therefrom, which is not the case, the use for such purpose would have to be a reasonable one.

The contention that the relief given is not warranted by the prayer in the petition cannot be sustained. In addition to praying that defendant be enjoined from diverting water from the lake in such a way as to lower the level thereof, plaintiff also prayed for general relief.

The fourth, fifth, and sixth assignments are overruled.

The judgment is affirmed.