author: MOURSUND, J.

text:
    FORD v. SIMMONS et al.
    (No. 5384.)
    (Court of Civil Appeals of Texas. San Antonio.
    Dec. 23, 1914.)
    1. Judges (§ 25) — Special Judges — Election by Members oe Bar — Powers.
    Under Rev. St. 1911, art. 1741, providing, relative to special judges elected by the practicing lawyers present at a term of court, in the absence of the county judge, that such special county judge shall have all the power and authority of the county judge while in the trial and disposition of all the cases pending in such court during the absence of the county judge, such a special county judge may try all cases in which he is not disqualified, even though the county judge would be disqualified.
    [Ed. Note. — For other eases, see Judges, Cent. Dig. §§ 99-106; Dec. Dig. § 25.]
    2. Judges (§ 25) — Special Judges — Election by Members of Bar — Powers.
    A special county judge elected by the members of the bar in the absence of the county judge had jurisdiction to try a case, though because of the disqualification of the county judge and the failure of the parties to agree upon a special judge at a previous term the Governor had appointed a special judge to try such case pursuant to Rev. St. 1911, art. 1738, where the special judge appointed by the Governor had not qualified.
    [Ed. Note. — For other cases, see Judges, Cent. Dig. §§ 99-106; Dec. Dig. § 25.]
    Appeal from Cameron County Court; Ira Webster, Special Judge.
    Action between J. Stanley Ford and G. N. Simmons and others. From a judgment against him, Ford appeals.
    Affirmed.
    Harbert Davenport, of Brownsville, for appellant. Rich & Searle, Graham, Jones, West & Dancy, and J. C. George, all of Brownsville, for appellees.

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

   MOURSUND, J.

This case was tried before Hon. Ira Webster, who was duly elected special judge of the county court of Cameron county, on account of the absence of Hon. H. L. Yates, county judge of said Cameron county. A motion for new trial was filed by appellant in which it was contended that said Ira Webster was without jurisdiction to try the case because Judge Yates was disqualified to try the case and prior to the election of said Webster as special judge the disqualification of Judge Yates and the failure of parties to agree upon a special judge at the preceding term had been duly certified to the Governor, who had thereupon duly appointed Hon. F. W. Sea-bury as special judge to try this case. The commission from the Governor appointing said Seabury was attached to said motion, but had not theretofore been filed in the case. It appears from exhibits attached to a reply to said motion that said Hon. F. W. Seabury had never qualified as special judge, nor even received notice of his appointment. The docket entries failed to show that Judge Yates had noted his disqualification upon the docket. There was nothing upon the minutes at the time the case was tried or among the papers indicating that a special judge might have been appointed to try the ease. So far as disclosed by the record, none of the attorneys or parties had notice of the appointmfent made by the Governor except attorney for appellant.

Appellant relies for a reversal solely upon the proposition that fundamental error was committed in that Special Judge Webster was without jurisdiction to try the case.

Articles 1738, 1739, and 1741 (R. S. 1911), relating to the appointment by the Governor and election by the bar of special county judges, have all been recognized by our courts to be valid. Porter v. State, 48 Tex. Cr. R. 125, 86 S. W. 767; Dulaney v. Walsh, 90 Tex. 329, 38 S. W. 748.

Under article 1741 a special judge elected by the bar is given “all the power and authority of the county judge while in the trial and disposition of all the cases pending in said court.” This means that he is given the power to try all cases in which he is not disqualified, and not that he is given the power to try all cases in which the county judge is not disqualified. Therefore, in this case, the special judge elected by the bar was authorized by law to try the case unless the fact that an appointment of a special judge had been made by the Governor prevented him from acquiring jurisdiction to try the case. The appointment alone could confer no jurisdiction upon the appointee to try the case, as he could decline to qualify or fail to qualify, and therefore when this case was reached by Special Judge Webster the appointed special judge had acquired no jurisdiction to try the ease. Judge Webster therefore had jurisdiction to try the case. We express no opinion upon the question whether Judge Webster could have legally tried the case if' Judge Seabury had qualified as special judge prior to the trial of the case.

The judgment is affirmed.


source: Caselaw Access Project

author: DUNKLIN, J.

license: Public Domain

text:
    RIDENHOWER v. COLLINS.
    (No. 8022.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Oct. 24, 1914.)
    Brokers (§ 86) — Actions for Compensation —Sufficiency of Evidence.
    In a broker’s action for commissions on the sale of a farm, evidence held to warrant a jury finding that it was the understanding of the parties that the price at which the farm was listed with the broker and for which it was sold should be net to defendant, and that the broker was to add his commission thereto in fixing the selling price.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 116-120; Dec. Dig. § 86.]
    Appeal from Comanche County Court; J. H. Milam, Judge.
    Action by Ray Ridenhower against J. S. Collins. From a judgment for defendant, plaintiff appeals.
    Affirmed.
    Smith & Palmtt, of Comanche, for appellant. Goodson & Goodson, of Comanche, for appellee.

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

   DUNKLIN, J.

Ray Ridenhower sued J. S. Collins to recover $200 claimed as a broker’s commission earned in negotiating the sale of a farm belonging to Collins, and from a judgment denying him a recovery the plaintiff has appealed.

The original statement of facts filed in the trial court has not been sent up, as provided by article 1932, Vernon’s Sayles’ Texas Civil Statutes, but a copy of the same is embodied in the transcript. Appellee has moved to strike out such copy from the transcript, contending that only the original statement of facts can be considered in this court. It will be unnecessary to pass upon the merits of this motion, or upon objections to a consideration of the one assignment of error presented in the record, since we have decided, as hereinafter shown, that the judgment should be affirmed, even though such motion and objections should be overruled.

The assignment of error presented is, in effect, that the evidence conclusively and without controversy establishes a right in the plaintiff to recover the commissions claimed. The evidence does show without controversy the following facts: Defendant listed his farm with plaintiff for sale, naming $4,000 as his price therefor. Plaintiff was engaged in the business of a real estate broker, and that fact was known to the defendant at the time of such listing. The plaintiff procured a purchaser for the land at the price named, and the defendant sold it to such purchaser at that price, and before such employment of the plaintiff as such broker had been revoked. But whether or not, under the contract of employment, it was understood and agreed between the parties that the price for which the land was listed was to be net to the defendant, and the plaintiff should realize a commission from the purchaser by adding the same to such net price, as contended by the defendant, was a disputed issue under the evidence. While both parties testified that at the time of the employment of plaintiff under which the sale was made the question of the payment of a commission was not mentioned, yet they both testified further that some three or four years prior to that employment the land was first listed with the plaintiff for the same price, no mention being then made of a commission for selling the land, but that, after, such listing, plaintiff drew up a written contract of employment, which was signed and delivered to him by the defendant, and in which the price Of the land was stated as $4,200, instead of $4,000. Both parties testified, in effect, that they understood at that time that the $200 added to the price named by the defendants was for commission to plaintiff for making the sale, and that the $4,000 was to be net to the defendant. At the time of the second listing of the land with the plaintiff substantially the same conversation occurred as when it was first listed, but no written contract of employment was thereafter drawn up, as was done in the first instance. The defendant testified, substantially, that it was his understanding that when the land was listed the second time he should receive $4,000 net to him, and that plaintiff should add his commission to that price and price the land to the purchaser for $4,000, plus such added commission, just as it was understood and agreed at the time of the first employment. We are of the opinion that the facts and circumstances related were sufficient to warrant a finding by the jury that such was the understanding by both parties at the time of the second listing of the land.

Hence the assignment is overruled, and the judgment is affirmed.

Affirmed.


author: SPEER, J.

text:
    MOLLOY v. BROWER et al.
    (No. 8035.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Nov. 7, 1914.
    Rehearing Denied Dec. 5, 1914.)
    1. Execution (§ 172) — Action to Restrain —Evidence—Deeds.
    Where the pleadings in a wife’s action to enjoin an execution sale, in satisfaction of her husband’s debt, of property deeded to her by him, alleged that the deed to the wife was in fee simple as her separate estate, but did not purport to set out the tenor of the deed or more than its legal effect, it was not error to admit the deed in evidence, though it did not, in terms, limit the property to her separate use.
    [Ed. Note. — For other cases, see Execution, Cent. Dig. §§ 519-539; Dee. Dig. § 172.]
    2. Husband and Wife (§ 119) — Conveyance to Wife — Effect to Vest Separate Estate.
    A deed from husband to wife necessarily vests the wife with a separate estate in the property conveyed, and is in law a conveyance to her separate use.
    [Ed. Note. — For other cases, see Husband and Wife,_^ Cent. Dig. §§ 424 — 429, 447; Dee. Dig.
    3. Execution (§ 172) — Levy—Injunction-Sufficiency of Evidence.
    Evidence, in a wife’s action to enjoin a sale of her property under an execution against her husband, held) to sustain an implied finding that the writ of execution had been levied on her property.
    [Ed. Note. — For other cases, see Execution, Cent. Dig. §§ 519-539; Dee. Dig. § 172.]
    4. Appeal and Error (§ 1051) — Harmless Error — Admission of Evidence.
    In a wife’s action to enjoin a sale of her property under an execution against her husband, permitting plaintiff to testify to circumstances tending to make the property her separate estate, if error, was harmless, where the deed from the husband on which she relied, and which was offered in evidence, vested her with the separate estate.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4161-4170; Dec. Dig.' § 1051.]
    Appeal from District Court, Tarrant County; R. I-I. Buck, Judge.
    'Injunction by Mrs. L. M. Brower and her husband against A. W. Molloy and another. From judgment for plaintiffs, the defendant named appeals.
    Affirmed.
    Jas. C. Scott, of Ft. Worth, for appellant. Lindsley M. Brower and G. R. Lipscomb, both of Ft. Worth, for appellees.

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

   SPEER, J.

Mrs. L. M. Brower, joined by her husband, A. A. Brower, instituted this suit in the district court of Tarrant county to restrain A. W. Molloy and L. W. Allen, the latter as sheriff of Williamson county, from making a sale of a tract of land on a writ of execution issued out of the county court of Tarrant county for civil cases on a judgment in favor of A. W. Molloy against A. A. Brower, the plaintiff claiming the property as her separate estate. There was a trial before the court, resulting in a judgment in favor of the plaintiff perpetuating the injunction prayed for, and the defendant Molloy appeals.

The trial court found as matter of fact that the property in controversy was deeded by A. A. Brower to his wife, L. M. Brqwer, upon an understanding between both that the same should be her separate property, and that at the time of the conveyance the grantor was solvent, and furthermore that at that time appellant was not a creditor at all of the said A. A. Brower. The court further found that there was a consideration moving from Mrs. L. M. Brower to her husband to sustain the conveyance.

The first ruling of which the appellant complains is that the court erred in admitting the deed from A. A. Brower to Mrs. L. M. Brower because it varied from the deed pleaded by appellees, in that the pleading declared the conveyance was to the wife in fee simple as her separate estate, whereas the deed offered in evidence did not in terms limit the property to her separate use. We overrule this assignment for two reasons: First, because the pleadings did not undertake to set out the tenor of the deed evidencing Mrs. Brower’s ownership, but merely the legal effect of the same; and, second, because since a deed from the husband to the wife can have no other effect but to vest in her a separate estate in the subject-matter of the conveyance, the deed was therefore in fact and in law a conveyance to her separate use. See Jones v. Humphreys, 39 Tex. Civ. App. 644, 88 S. W. 403, and cases there cited.

It is next complained that the record contains no proof of a levy of the writ of execution alleged by appellees. The petition alleging in detail the levy of the execution was properly verified, and the appellants nowhere specifically deny such allegation. So that, it is doubtful if the same was an issue on the trial, but if so, the testimony of Mrs. Brower is sufficient, we think, to support the implied finding that the writ had been levied on her property. She said:

“My husband sold and traded me a tract of land in Williamson county, Tex. It is the tract of land the defendant A. W. Molloy is seeking to sell under execution, in satisfaction of a judgment rendered against my husband, A. A. Brower, in the county court of this county, and my husband and I are plaintiffs in this case for the purpose of stopping the sale of said land for the reason that it is my separate property. I know it is the same land levied upon in this case because the sheriff sent me a notice describing the land by metes and bounds.”

We adopt the trial court’s finding of fact that the deed from A. A. Brower to Mrs. L. M. Brower was based upon a consideration, as the evidence is sufficient to show an indebtedness to her of many years’ standing. It is therefore unnecessary for us to pass upon the sufficiency of the evidence to support the finding that appellant was not a creditor of appellee A. A. Brower at the time of the conveyance, and we, accordingly, will not do so.

The rulings whereof it is complained that appellees were permitted to testify to facts and circumstances tending to make the property her separate estate present no possible error since, as we have already indicated, the legal effect of the deed was to vest in the wife the separate estate.

There is no error in the judgment, and it is affirmed.


author: BUCK, J.

text:
    ST. LOUIS & S. F. RY. CO. et al. v. STAPP.
    (No. 8036.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Nov. 14, 1914.)
    Appeal and Error (§ 345) — Time tor Appeal-New Trial.
    Under Rev. Civ. St. 1911, art. 2086, requiring that a writ of error be sued out within 12 months after rendition of final judgment, where a judgment was rendered December 11, 1912, and a motion for new trial was overruled January 21, Í913, a writ of error filed January 19, 1914, was not filed in time; the time of the commencement of the 12-month period not being changed by Acts 33d Leg. c. 136 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1612) effective April 4, 1913, which amends article 1612, and Supreme Court rule 24 (142 S. W. xii), making the filing of a motion for new trial a condition precedent to the taking of a writ of error.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1895, 1896; Dec. Dig. § 345.]
    Error from Wichita County Court; C. B. Felder, Judge.
    'Action by G. W. Stapp against the St. Louis & San Francisco Railway Company and others. • Judgment for plaintiff, and defendants bring error.
    Writ of error dismissed.
    Carrigan & Householder, of Wichita Falls, and S. C. Rowe, of Ft. Worth, for plaintiffs in error. Jno. C. Kay, of Wichita Falls, and Theodore Mack, of Ft. Worth, for defendant in error.

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

   BUCK, J.

At the threshold of the consideration of this case we are met with the motion of defendant in error to. dismiss the appeal of plaintiffs in error because it was not filed in this court within 12 months from the rendition of the judgment in the trial court, and he cites in support of his motion article 2086, Revised 'Civil Statutes 1911, which reads as follows:

“The writ of error may, in eases where the same is allowed, be sued out at any time within 12 months after the final judgment is rendered, and not thereafter,”

—and also the case of Cooper v. Yoakum, 91 Tex. 391, 43 S. W. 871.

By reference to the transcript it is shown that the judgment in the trial court was rendered December 11, 1912; motion for new trial was overruled January 21, 1913; and that the plaintiff filed his petition for writ of error in the trial court on January 19, 1914. So it will be seen that more than 12 months had elapsed between the rendition of the judgment in the trial court and the filing of plaintiffs in error’s petition for writ of error, but that it lacked 2 days of being 12 months from the date of the overruling of the motion for new trial.

In the case of Cooper v. Yoakum, above referred to, the Supreme Court, on certified question by the Court of Civil Appeals for the Fourth District, held that the 12 months allowed by statute after the final judgment in the trial court in which to file the writ of error dates from the rendition of the main judgment, and not from the overruling of the motion for a new trial. This construction of the statute has been followed uniformly since, so far as we have been able to determine. In Carpenter v. Carpenter, 142 S. W. 633, the court adheres to the ruling made in the case of Cooper v. Yoakum.

But the plaintiffs in error urgently insist that the motion to dismiss the writ of error filed by defendant in error should not be sustained because:

“The petition for writ of error and error bond herein have been filed subsequent to the amendment of article 1612, Revised Civil Statutes of 1911, as amended by chapter 136, p. 276, of Acts of the Thirty-Third Legislature, which article as amended, when considered in connection with rule 24 promulgated by the Supreme Court November 26, 1911 (142 S. W. xii), makes it necessary to file a motion for new trial before an appeal or writ of error can be taken; whereas, under the law as it was previously to the enactment of said amendment and the formulating of said rule, such motion was not' a necessary prerequisite to appeal or error. Therefore the judgment in this cause overruling the motion for new trial was the final judgment therein and the-writ of error herein was sued out in time.”

The amendment to article 1612, Revised Civil Statutes 1911, found in chapter 136, p. 276, Acts 33d Leg., to which counsel for-plaintiffs in error cites us, became a law April 4, 1913. In Evans v. S. A. Tract. Co., 166 S. W. 408, the Court of Civil Appeals for-tlie Fourth District, speaking through Carl, J., uses the following language:

“This cause is brought to this court on writ of error from a judgment rendered on the 14th day of October, 1912. The motion for a new trial was overruled on November 30, 1912, and notice of appeal then given. The petition for writ of error was filed November 29, 1913.”

And, after quoting article 2086, Revised Statutes, he further says:

“Where a petition for a writ of error is not filed within 12 months from the time final judgment is rendered, as provided in article 2086 of the Revised ¡Statutes of 1911 (article 1389, Revised Statutes 1895), the writ will be dismissed; since the condition is jurisdictional. And this article of the statute has been construed to mean 12 months from the time the judgment was rendered, and not from the time the motion for a new trial is overruled” — citing Cooper v. Yoakum, 91 Tex. 391, 43 S. W. 871; Carlton v. Ashworth, 45 S. W. 203; Converse v. Trapp, 29 S. W. 415; Uvalde v. Uvalde, 31 S. W. 327; Schleicher v. Runge, 90 Tex. 456, 39 S. W. 279; Milo et al. v. Nuske et al., 95 Tex. 243, 66 S. W. 544.

As will be seen, the decision in Evans v. S. A. Traction Co., supra, was rendered more than 12 months after the amendment of article 1612 referred to, and the court must have had in mind such amendment at the time it rendered the decision.

While the plaintiffs in error cite us to what appears to be a contrary holding with reference to appeals from the justice court to the county court, as persuasive of the reasonableness and justice of a different construction than the one which has heretofore been adhered to of article 1612, yet we do not feel at liberty to depart from the construction of this article given by our Supreme Court and by courts of co-ordinate jurisdiction.

The writ of error is dismissed, at the cost of plaintiffs in error.


text:
    RHOME MILLING CO. v. CUNNINGHAM et al.
    (No. 8023.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Oct. 31, 1914.)
    1. Venue (§ 32) — Assignment—Evidence— Fraud.
    Evidence, in an action by the assignee of a claim for damages for a seller’s delivery of inferior, damaged mill products, held not to sustain defendant’s contention that the assignment was fraudulently made for the purpose of affecting the venue.
    [Ed. Note. — For other cases, see Venue, Cent. Dig. §§ 47-50; Dee. Dig. § 32.]
    2. Corporations (§ 503) — Venue — Place Where Cause oe Action Arose.
    Under section 24, art. 1830, Vernon’s Say les’ Ann. Civ. St. 1914, providing that suits against any private corporation or joint-stock company may be commenced in any county in which the cause of action or a part thereof arose, the assignee of a claim for damages for defendant’s delivery of inferior or damaged goods bought in C. county from defendant’s traveling salesman, to be paid for by taking up defendant’s drafts for shipments f. o. b. C. county, might sue defendant in C. county, since the cause of action at least in part arose in that county.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1835-1939, 1942-1946; Dec. Dig. § 503.]
    3. Customs and Usages (§ 17) — Parol Evidence to Vary Contract.
    Where a written contract for the sale of goods provided that no agreement, conditions, or stipulations, verbal or otherwise, except those mentioned in the contract, would be claimed, parol evidence that it was customary for the buyer to furnish shipping directions was inadmissible.
    [Ed. Note. — For other cases, see Customs and Usages, Cent. Dig. § 34; Dec. Dig. § 17.]
    4. Sales (§ 416) — Action for Damages — Evidence.
    In an action for damages from a seller’s delivery of inferior or damaged goods, evidence of a custom of the buyer to furnish shipping directions held inadmissible, since a violation of such custom did not induce the seller’s breach of contract.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1171, 1172; Dec. Dig. § 416.]
    Appeal from Comanche County Court; J. H. McMillan, Judge.
    Action by W. B. Cunningham and others against the Rhome Milling Company and another. Judgment for plaintiffs in justice’s court was affirmed on appeal, and defendant company appeals.
    Affirmed.
    W. T. McPherson, of Comanche, for appellant. Goodson & Goodson, of Comanche, for appellees.

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

   SPEER, J.

O. P. Williams, of Comanche county, purchased from the Rhome Milling Company, a corporation doing business in Wise county, certain mill products, and, upon its failure to deliver the same, transferred and guaranteed his claim for damages to W. B. Cunningham, also of Comanche county, whereupon the latter sued both the milling company and Williams in the justice court of Comanche county. The plaintiff had judgment, and the cause was duly appealed to the county court, where he again recovered judgment against both parties, and the milling company appeals.

The first complaint goes to the action of the court in overruling the plea of appellant to he sued in the county of its own residence; the contention being that the facts showed a fraudulent transfer of the claim from Williams to Cunningham. We cannot disturb the judgment in this respect, however. Cunningham testified:

“I in good faith bought tliis claim from C. F. Williams, and it was transferred to me, and I own it absolutely. I would not have boxxght the claim unless its payment had been guaranteed to me at Comanche, Tex., by Mr. Williams, who lived there, and after the claim was bought by me I directed suit to be brought thereon.”

Williams testified that he in good faith sold the claim to Cunningham and guaranteed its payment at Comanche; that he had no interest in the claim, except that as (m in-dorser and guarantor he is liable to Cunningham; that Mr. Cunningham gave him credit for the amount on the books of the bank; and that he has long since used the money put to his credit at the bank and has never repaid any part of the same to Mr. Cunningham.

Besides, section 24 of article 1830, Vernon’s Sayles’ Tex. Civ. Stat., prescribes that:

“Suits against any private corporation, association, or joint-stock company may be commenced in any county in which, the cause of action, or a part thereof, arose.”

The undisputed facts show that Williams bought the goods in question in the town of Comanche from the traveling salesman and agent of appellant, and that payment for the same was to be made at that place at the Farmers’ & Merchants’ National Bank by taking up drafts for shipments which were to be made f. o. b. Comanche, Tex., and that the Comanche bank, to whom appellant was to send its drafts upon the payment by Williams, was to remit the proceeds to appellant. It thus appears that the cause of action, at least in part, arose in Comanche county. Kell Milling Co. v. Bank of Miami, 155 S. W. 325.

Those assignments complaining of the action of the court in refusing to admit evidence tending to show that appellee Williams was to furnish appellant shipping instructions and directions, or at least that such was customary between merchant and merchant, are overruled for the reason the contract appears to have been in writing and to contain the following stipulations: “It is understood that no agreement, conditions, or stipulations, verbal or otherwise, except those mentioned in this contract, will be claimed,” and that “this order is taken subject to the approval of the Rhome Milling Company and is not subject to countermand,” and furthermore because if any such agreement was made, or any such custom existed, its violation did not induce appellant’s breach of the contract. Its dereliction lay, not in failing to ship at all, but in shipping inferior or damaged merchandise.

We overrule the other assignments complaining of the incompetency of the witness Williams and of the insufficiency of the evidence to support the judgment. The evidence was sufficient to authorize the recovery shown, and the judgment is therefore affirmed.

Affirmed.


author: HUFF, C. J.

text:
    MEMPHIS COTTON OIL CO. v. GARDNER.
    (No. 661.)
    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 14, 1914.
    Rehearing Denied Dec. 12, 1914.)
    1. Master and Servant (§ 278) — Injury to Servant — Negligence—Question for-Jury.
    In an action for injuries to an employé by the falling on him of sacks of meal stacked in a room where he was required to work, evidence held to sustain a finding of negligent failure to provide a reasonably safe place in which to work.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 954, 956-958, 960-969, 971, 972, 977; Dec. Dig. § 278.]
    2. Master and Servant (§§ 288, 289) — Injury to Servant — Contributory Negligence-Assumption of Risk. '
    Whether an employé, injured by the falling of sacks of meal, assumed the risk or was guilty of contributory negligence held!, under the evidence, for the jury.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1068-1090, 1092-1132; Dee. Dig. §§ 288, 2S9.]
    3. Appeal and Error (§ 1002*) — Verdict— Conclusiveness.
    A verdict on conflicting evidence will not be disturbed on appeal.
    [Ed.- Note — For other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dee. Dig. § 1002.]
    4. Master and Servant (§ 103) — Injury to Servant — Nondelegable Duty.
    Where sacks of meal were negligently stacked, so as to render the place unsafe for an em-ployé to work, the employer was liable for injury to the employé, though the duty to stack the sacks had been delegated to another, for the duty to provide a reasonably safe place is nondelegable.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 175; Dec. Dig. § 103.]
    5. Master and Servant (§ 125) — Injury to Servant-Sake Place to Work.
    An employer is not liable for a mere temporary unsafe condition of place of work of which he has no notice or of which the exercise of ordinary diligence would not have informed him, but is liable where he could have known of the condition by the exercise of ordinary care.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 243-251; Dec. Dig. § 125.]
    6. Master and Servant (§ 107) — Injury to Servant — Liability.
    Mere temporary dangers created by fellow employés, due to no fault of the plan or construction, are not within the rule imposing on an employer the duty to provide a safe place for employés in which to work.
    TEd. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 199-202, 212, 254, 255; Dec. Dig. § 107.*]
    7. Master and Servant (§ 107) — Injury to Servant — Liability.
    Where a working place is made unsafe by the material therein or the construction thereof, and is in that condition when an employé is directed to work thereat, the employer, negligent in permitting it to remain in that condition, is liable for injuries received by the em-ployé.
    TEd. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 199-202, 212; 254, 255; Dec. Dig. § 107.]
    8. Master and Servant (§ 125) — Injury to Servant — Safe Place to Work.
    Where the employer’s vice president and the general foreman frequently passed through a room when the work of stacking sacks of meal was being negligently done, the employer was chargeable with notice of the danger, and was liable for subsequent injury thereby to an employé, not assisting in the work and knowing nothing of the conditions and not warned.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 243-251; Dec. Dig. § 125.]
    9. Master and Servant (§ 201) — Injury to Servant — Negligence—Liability.
    Where the negligence of an employer concurred with the negligence of fellow servants in stacking sacks of meal in a room, an employé injured by the falling of the stack while at work could recover.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 515-534; Dec. Dig. § 201.]
    10. Master and Servant (§ 201) — Injury to Servant — Negligence oe Employer and Fellow Servant.
    Where the negligence of fellow _ servants in removing sacks of meal stacked in a room, where an employé was injured by the falling of the stack, concurred with the negligence of the employer in the construction of the stack, the negligence of the fellow servants would not defeat a recovery.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 515-534; Dec. Dig. § 201.]
    Appeal from District Court, Hall County; J. A. Nabers, Judge.
    Action by W. E. Gardner against the Memphis Cotton Oil Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Presler & Thorne, of Memphis, and R. E. Taylor and Leslie Humphrey, both of Hen-, rietta, for appellant. S. A. Bryant and J. M. Elliott, both of Memphis, for appellee.

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

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

   HUFF, C. J.

W. E. Gardner, appellee, brought an action for damages against the Memphis Cotton Oil Company, for alleged personal injuries received December 24, 1912, and obtained a verdict and judgment against appellant for $250. He alleged that he was employed by appellant’s foreman P. M. Holland, and worked under his direction and control; that he was assigned by the foreman to the work of unloading cake from cars when shipped to the mill for grinding into meal, which was his special work; and that he was not familiar with the conditions of the meal room further than the placing of the cake in the same for grinding would render him. On December 24, 1912, he was ordered by Holland to stop the work of unloading and to go to work assisting in removing, retagging, and loading certain sacks of meal from appellant’s meal room into a car set for the purpose of being loaded; that some time prior thereto defendant, its foreman and employé, stacked a great number of sacks filled with cotton seed meal in its meal room in close proximity to the sacks which he was commanded to handle, and in doing so carelessly and negligently failed to tie or interlock said sacks in such manner as to insure the stacks standing against jars or shaking incidental to the running of the machinery therein; that the sacks weighed about 100 pounds each and were stacked one upon another to a great height, thereby rendering the same topheavy and liable to fall and dangerous to the life and limb of such employes of the company who 'were required to work in close proximity thereto; that the row of sacks nearest to where appellee was about to work were stacked with the ends towards his position, giving it the appearance of safety, and that he was ignorant of the true condition of the stack of sacks; that he was not informed of the danger attending the performance of the work to which he had been temporarily assigned; that the particular work he thus began to do was the lifting of sacks from the floor or from low stacks commencing but little above the place of the meal room and setting same at or near the door to retag, and which were taken away and loaded in the car by other hands. While thus engaged,, and in a short time after beginning the work, and without knowledge on his part of danger and from causes unknown to him other than the negligent, careless, and insecure stacking above set out, a great number of sacks of meal fell from their high and insecure position and struck and bruised him, mashing him to the floor beneath their weight. It is alleged that the putting of the sacks in the stacks, as above described, in the negligent manner in which they were placed was the direct and proximate cause of appellee’s injuries, and that defendant, its foreman and employes, did not stack the said sacks as a person of ordinary prudence would have done under the same circumstances, and as was their duty to do, all of which was known to defendant, its foreman and employes, and could have been known, by the use of ordinary care and diligence, at the time and before the injury, and that they were negligent in failing to warn plaintiff of the danger in which he had been so suddenly placed by order of the foreman. The appellant denied negligence in the particulars alleged, and alleged that the plaintiff voluntarily engaged in the work and was not working at said time under the direction of defendant or any agent authorized or empowered to direct him to engage in such work; that his injuries were caused and due to his own negligence, which contributed to said injuries, his negligence being due to his own carelessness in removing and loading the sacks of meal whereby he incurred danger not necessarily incident to the work in which he was engaged; that the sacks were visible to him and all the dangers incident to said sacks stacked as they were a.t said time were openly visible to him, and he really knew or could have known of the danger incident to the work by the use of ordinary care; and that he is thereby deprived of any right of recovery.

The first assignment attacks the finding of the jury because the finding that defendant did not provide plaintiff a safe place in which to work is against the undisputed evidence, which is to the effect that there is no danger in the place in which plaintiff was at work, and the only danger to which plaintiff was exposed was caused by his own carelessness and his negligent manner in doing the work; that he was not engaged in tagging and retagging the sacks of meal, but was pulling down sacks in a negligent manner by pulling sacks from beneath instead of removing them from the top, which work he was doing voluntarily without instructions either as to doing or the manner in which he was to do the work from any one, and with full knowledge of the danger to which he was exposing himself by the way he was removing said sacks of meal. Appellant submits this assignment as a proposition, and two other propositions are submitted thereunder: Firsts that plaintiff based his cause of action upon the negligence of defendant failing to stack the sacks in the meal room as an ordinarily prudent person would have done and upon no other ground. It was incumbent upon the plaintiff to establish the same by a preponderance of the evidence, and, if he failed, the court should not have submitted the issue to the jury. And, second, plaintiff could only recover upon the allegation of negligence alleged, and, if the evidence did not support same, it was error to submit a right of recovery upon any other ground, even if the evidence supported the other ground not alleged, and the court should have instructed a verdict for the defendant.

The first issue submitted to the jury in effect is:

“Did defendant company, its foreman and employs, fail to stack the sacks with a view of avoiding injury, as an ordinarily prudent person would have done?”

The jury answered this issue in the affirmative. We are at a loss to understand what issue was here submitted that had no pleading to support it. The jury further found that the appellee was not guilty of contributory negligence, and further answered that the danger in handling the sacks was not open and visible; so that plaintiff could see or know of it, or, from the nature of the work, would reasonably acquire knowledge of such danger; and further that he did not voluntarily assume the risk. They also found that P. M. Holland, the foreman of the mill, instructed him to move the sacks and to work in the place where the sacks were being moved. . The testimony of appellee and that introduced by him is to the effect that P. M. Holland, the foreman and manager of the mill, who had the authority to employ and discharge, directed the appellee to assist in tagging and retagging the sacks, and that, in obedience to such instructions, appellee left the work to which he had been assigned, and which he had theretofore been doing (that is, unloading cotton seed cake and carrying it into the mill or crusher to be ground into meal); that he went into the room where the meal was stacked to assist those engaged in tagging and retagging the sacks. In order to tag and retag the sacks, it was necessary to take the sacks from the stacks and place them so the old tags coul'l be taken off and new ones put on, and, while he was removing the sacks, a stack of the sacks fell on him, covering him up, injuring his ankle, etc. I-Iis evidence is that he did not know who had or how the stacks had been constructed previous to his going to work, and that no one warned him of the danger therefrom. He further testified that he thought he would be perfectly safe in getting the sacks, and, if he had not so thought, he would not have gone in after the sacks. The evidence- shows that sacks had been taken by others from the two tiers when appellee went into the room to work, and these two' tiers extended about one-third the height of the stack at his -side, or about six or seven high. It was out of these tiers that appel-lee commenced to remove the sacks, and he had been there but a short time when the stack fell over and caught him. He further states that the ends of the sacks next to those he was moving were towards him, and he did not think this tier would fall towards him, but that, if they fell, they would roll off to the side from him. From the evidence we do not find that he undermined the tiers of sacks next to the ones he was removing, but only took off the tier which adjoined the ones that fell. Up to the time of the injury he was not aware of the manner in which the stack had been constructed.

It appears from the evidence that the back tier of the stack next to the stack, with the ends towards appellee, the sacks therein for several tiers were piled one upon the other, without being tied or interlocked, and that these tiers pushed out the tier next to appellee and toppled it over on him. At least the jury were authorized to find that the failure to tie or interlock the rear sacks caused them, by reason of their weight, to force over the tier, the ends of which were next to appellee, and, if they had been tied, the sacks would not have so fallen, and that they were negligently stacked. It appears from the evidence that, after this accident, appellant caused stacks in the room to be tied or interlocked by persons then at work in that room. There is evidence to the effect that two weeks previous to the accident sacks so stacked had fallen ■ in that room. There is evidence that in removing the sacks from the stack it was the rule at that mill, and the manager and foreman had so instructed the employés, to take the sacks down by tiers and leave the other tier with the straight wall of sacks. This, however, is denied, and there is evidence that the employes were instructed to commence removing the sacks from the top. As a matter of fact, every issuable fact in this case was controverted, and the testimony thereon is conflicting. The evidence in this case tends to show that appellee had not been at work in removing sacks for tagging exceeding 30 minutes when the accident occurred, and he says that he had only removed seven or eight sacks and pulled the tags off ready for retagging. The evidence shows that Holland, the superintendent, the day of the accident, or the day after, told the appellee that it was through appellant’s carelessness that he was hurt, and that they would pay his doctor’s bill, and for his time while confined, and that, if it had been his negligence, they would not do so. The evidence shows they did pay his doctor’s bill and for his time lost. We do not feel authorized, therefore, to say there was no fact which authorized the jury to find negligence, or in holding that the uncontroverted facts show that appellee was guilty of contributory negligence, and that he assumed the risk.

As usual in cases of this character, there is a perfect wilderness of contradiction and conflicting testimony, but on that ground alone we do not feel justified in holding the verdict is without support. We do not think that it can be said, as a matter of law, that an inexperienced man, relying upon the assumption that the master knows his duty to the employes, and will perform it, would have known the manner of doing the work was not a reasonably safe one. We do not think within the 30 minutes’ work that he acquired such knowledge as to apprise him of the danger he encountered in continuing the work. These questions, we think, were for the jury, and, having passed upon the facts, we do not believe we should disturb their findings. Bonnet v. Railway Co., 89 Tex. 72, 33 S. W. 334. There is evidence a.t least tending to support the findings of the jury. The same may be said as to contributory negligence. The appellee is not shown to have conducted himself out of the usual and ordinary way of performing the work, and the testimony is that the method of reducing the pile of sacks was resorted to in the instant case that had theretofore been used and directed. True, some of the witnesses say it would have been better and safer to take the sacks from the top, but at least the question was for the jury to say whether an ordinarily prudent man would have acted as did appellee under the circumstances.

The second assignment is to the effect that the court erred in submitting the third special issue, wherein the alleged negligence of defendant’s foreman in placing plaintiff in an unsafe place to work was submitted; that the answer of the jury thereto is without evidence to support it; and that the undisputed evidence shows the place to have been safe, and the danger arose from the negligence of plaintiff, and with full knowledge that the work was dangerous, it being open and obvious, and the facts which show his attention was called thereto while doing the work. The proposition thereunder is that a verdict against defendant is erroneous, where the undisputed evidence shows that the place in which the plaintiff was directed to work was not of itself dangerous, but that the danger resulted from the manner in which plain-tiff undertook to perform the work without any direction on the part of the principal. This .assignment and the proposition thereunder, we think, is substantially disposed of by our findings under the first assignment. The first and second assignments have included therein a proposition that the court should not have submitted to the jury issues Nos. 1 and 3, whether the place was a safe one in which appellee could work, because it asserted that the uncontrovertéd evidence is that it was safe. The issue as to the place was not directly submitted in issue No.. 1, but was submitted in issue No. 3. It is doubtful from appellant’s brief whether the issue of a safe place is properly presented for consideration in this court. There are no propositions following the assignments which present the question, and the assignments themselves cannot be treated as a proposition under the rules. This case, however, presents the question of a safe place and the question of fellow servant, which appellant has not presented, as we understand it, by its propositions, but the case is such that it has been forced upon our attention.

If the sacks of meal were negligently constructed, thereby rendering the meal room an unsafe place for the appellee to do the-work, then under the rule requiring the master to provide and maintain a reasonably safe place in which its servants are to work would render the appellant liable in this case,, even if it had delegated that duty to another. The duty to provide a reasonably safe place is nonassignable and nondelegable by the master. Hugo, etc., v. Paiz, 104 Tex. 563, 141 S. W. 518; Lantry v. McCracken, 105 Tex. 407, 150 S. W. 1156. The authorities cited by appellant upon other issues treat the rule of a safe place as not applying ,to the manner in which freight or the like is loaded in a place by other servants. It has been held by a Court of Civil Appeals that, where a night crew had stacked cross-ties so that they toppled over and injured a member of the day crew required to work near the place where they were stacked, “it was the duty of the railroad company,” says that court, “to provide a safe place for its servants to perform their work, and to that end to exercise ordinary diligence. This duty extended also to-the maintenance of the premises in a reasonably safe condition.” As soon as “it was shown that the remnant stack of ties was liable to topple over and fall upon the men while at work, and injure them, the dangerous condition in which it was rendered the premises unsafe.” Railway Co. v. Echols, 17 Tex. Civ. App. 677, 41 S. W. 488. A writ of error was denied in that case, and previous thereto the case had been passed upon by the Supreme Court. 87 Tex. 339, 27 S. W. 60, 28 S. W. 517. In the last report the question of safe place is suggested by the Supreme Court.

Appellant would not be liable for a ■ mere temporary unsafe condition of which it had no notice, or by the exercise of ordinary diligence would not be charged with notice, but, if it could have known of the same by ordinary care, the company would be liable. Ray v. Railway Co., 40 Tex. Civ. App. 99, 88 S. W. 466.

Mere temporary dangers created by fellow servants, due to no fault of plan or construction, do not fall under the rule imposing the duty of the master to provide a safe place, but we believe the authorities will support the proposition, when the place has been rendered unsafe by the material therein or the construction thereof, and is in that condition when the servant is directed to work thereat for the master, if the master was negligent in permitting it to remain in that condition, the servant may recover for injuries occasioned by the unsafe place. In such case, negligence appearing, it is a question of fact for the jury whether that negligence was in respect to what was done or undertaken by the fellow workmen or was the negligence of the master. Arkerson v. Dennison, 117 Mass. 407.

The first issue submitted to the jury was as follows:

“Did the company and its foreman and em-•ployés fail to stack the sacks of meal, testified about, as a person of ordinary prudence would have done, with a view of avoiding injury to workmen?”

The jury answered, “Yes.” And they answered that such failure was the proximate cause of said sacks falling on the plaintiff.

And the third issue was as follows:

“Was defendant’s foreman negligent in placing plaintiff to work in an unsafe place, if you find that he did, without warning him of the danger, ,i£ you find that he did not? You will answer the above question ‘in the negative, unless you find that said foreman knew that said place was unsafe, or by the exercise of ordinary care could have known it, and in this connection you are instructed that it is the duty of an employer to exercise ordinary care to furnish employés with a reasonably safe place to work.”

The- jury answered this question, “Yes.”

An employs of appellant, by the name of Blosser, testified that he assisted and directed in the stacking of the meal in the room the week previous, and that he was the foreman of the meal room. He did not have the right to employ and discharge. The vice president, Bennett, and Holland, the general foreman, frequently passed through the room when the work was being done. The appel-lee did not assist in the construction of the stacks, and says he knew nothing of its condition and was not warned with reference thereto, which the jury found was true. We think under such condition, if the master was negligent in failing to furnish a reasonably safe place, that the acts of other servants would, in the construction of the piles of sacks, be the act of the master, and not of a fellow servant, in so far as the appellee in this case is concerned.

If the master was negligent, and such negligence concurred with that of fellow servants, in the construction of the stacks, appellee would have the right of recovery. If the fellow servants, in removing the sacks, were negligent, and such negligence concurred with the negligence of the master in the construction of the stacks resulting in injury to appellee, this would not defeat a recovery by appellee. The jury found appellee himself was not guilty of negligence contributing to his injury, and, under the finding, appellee was entitled to a verdict.

We find no reversible error, and the judgment will be affirmed.


text:
    KYNARD et al. v. TUCKER.
    (No. 8042.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Nov. 28, 1914.)
    1. Vendor and Purchaser (§ 269) — Vendor's Lien — Enforcement — Equities of Adverse Party.
    If a vendor can have foreclosure, he is limited to that remedy, and is not permitted to assert his superior title against his vendee or those claiming under him, when the equities of such persons so require.
    [Ed. Note. — Eor other cases, see Vendor and Purchaser, Cent.Dig. § 759-763; Dec.Dig. § 269.]
    2. Vendor and Purchaser (§ 260) — Vendor’s Lien — Enforcement — Equities of Adverse Party.
    A vendor of a section of land retained a vendor’s lien, as shown by vendor’s lien notes and stipulation in the deed. A remote purchaser, assuming the payment of the notes, recon-veyed the south half to his grantor, who assumed the payment of the notes, and conveyed to plaintiff the north half for a' valuable consideration, without assumption of payment of the notes. Plaintiff had notice of the lien. Subsequently defendant obtained title to the south half by quitclaim, and also the vendor’s lien notes, and obtained a judgment removing clouds on his title on the entire section, but plaintiff was not a party to the action. Held, that plaintiff had such equities as against the enforcement of the vendor’s lien as to require satisfaction first out of the south half and a sale of his half for any balance.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 664-669; Dec. Dig. § 260.]
    3. Vendor and Purchaser (§ 285) — Purchasers of Incumbered Property — Personal Liability.
    Where a purchaser of a part of a tract subject to a vendor’s lien for the price did not assume to pay the debt or any part thereof, the holder of the vendor’s lien notes could not recover a personal judgment against him.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 800-807; Dec. Dig. § 285.]

      4. VENDOR AND PURCHASER (§ 260) — VENDOR’S Lien — Enforcement.
    "Where defendant acquired vendor’s lien notes for a section and a quitclaim deed of the south half and a judgment for the whole section, the north half of which had been previously purchased for a valuable consideration by plaintiff, who had notice of the lien, but who did not assume to pay it, and who was not a party to the action in which the judgment was rendered, defendant must first ascertain the value of the south half, and, if that be less than the debt, he could foreclose for the balance against the north half.
    [Ed. Note. — Eor other cases, see Vendor and Purchaser, Cent. Dig. §§ 664-669; Dec. Dig. § 260.]
    Appeal from District Court, Eastland County; Thomas L. Blanton, Judge.
    Action by M. O. Tucker against J. B. Ky-nard and another. Prom a judgment granting relief, defendants appeal.
    Affirmed.
    Harris & Burton, of Ft. Worth, for appellants. J, M. Wagstaff, of Abilene, for ap-pellee.

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

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

   DUNKLIN, J.

Chas. J. Canda and others sold to J. F. Battle section 25, township 7, block 51, Tesas & Pacific Railway Company survey in Reeves county, in part consideration for which conveyance Battle executed eight vendor’s lien notes payable to the grantors in the sum of $192 each. In this deed, and also in the notes given, a vendor’s lien was expressly retained to secure the payment of the note. Battle then sold the section to J. T. H. Lipscomb, who assumed the payment of the notes. Lipscomb sold the survey to A. H. Darnell in consideration of his assumption of the payment of the notes. Darnell then reconveyed the south one-half of the survey to Lipscomb, who, in consideration of that conveyance, assumed the payment of the vendor’s lien notes above mentioned. Bight days later Darnell sold the north one-half of the survey to M. O. Tucker by warranty deed for a cash consideration of $3,200. This deed was duly recorded. There were several subsequent sales of the south one-half of the survey; the grantee in the first being L. F. Sensa-baugh, and in the second Frank Riley, both of whom assumed payment of the notes mentioned. Riley’s title was later sold to W. W. Haggard by H. M. Hood, trustee, by virtue of a deed of trust executed by Riley to secure the payment of notes executed by him. W. W. Haggard in turn conveyed the same property to W. T. Banes. As consideration for that conveyance Banes executed vendor’s lien notes, payable to Haggard, but it was expressly recited in the deed that those notes were inferior liens to the seven vendor’s lien notes then outstanding in favor of Canda, one of the eight of said notes having already been paid. Banes and Battle then executed quitclaim deeds to J. B. Kynard and T. P. Boyd, by the terms of which they quitclaimed all the right, title, and interest in and to the entire survey. Prior to the execution of that deed Canda and the other payees in the original vendor’s lien notes mentioned instituted suits upon the entire survey to collect seven of the notes, alleging payment of the other note; Battle, Riley, and Banes and others being made defendants in the suit. Pending this suit the plaintiffs in the case conveyed the notes, and also the superior title outstanding in them, to Boyd and Kynard. Boyd and Kynard then intervened in the foreclosure suit, and by their plea claimed the superior title to the entire survey, and prayed for judgment therefor and for cancellation of all deeds held by Battle and other defendants and for the removal of the cloud from the plaintiffs’ title by reason thereof. Judgment was rendered granting them that relief. In that suit, however, M. O. Tucker was not made a party. Boyd and Kynard paid taxes on the entire survey for the year 1912, and M. O. Tucker has never lived on nor improved the north one-half claimed by him.

The present suit was instituted by M. O. Tucker against Boyd and Kynard to recover the north one-half of the survey. In his petition plaintiff set out, substantially, the history of the title as shown above, specially alleging that he was not a party to the suit by Canda and others which resulted in a judgment in favor of Kynard and Boyd for the entire survey, and that he was not bound thereby. He further alleged that the defendants had actual and constructive notice of his claim of title; that he should be decreed title to the north one-half free from any of the notes in favor of Canda and his coven-dors, but that, if he should be mistaken in that claim, then he prayed that judgment be rendered establishing the amount of the indebtedness due on said seven notes; that the same be adjudged a prior lien on the south one-half of the survey; and that the south one-half be sold for the purpose of satisfying said indebtedness before resort to the north one-half. He further alleged that the south one-half of the survey was of greater value than the entire debt evidenced by said seven notes.

In their answer the defendants Kynard and Boyd, claimed the -superior title to the entire survey as against plaintiff, and sought judgment accordingly, with the further prayer that plaintiff’s claim of title be canceled and held for naught. Defendants further alleged that plaintiff had notice of such superior title before he purchased the north one-half of the survey. Defendants further set out the seven vendor’s lien notes, and prayed for a foreclosure of the vendor’s lien retained by Canda and his covendors as against the entire, survey; this prayer being in the alternative to the prayer for recovery of title as against the plaintiff. Defendants further alleged the payment by them of $9.-60 taxes on the survey, and, as a part of the alternative plea mentioned above, they also prayed for foreclosure of lien by reason of payment of those taxes.

Judgment was rendered denying defendants’ prayer for recovery of title to the north one-half of the survey, but establishing an indebtedness in favor of the defendants up•on the notes executed to Oanda and others of ¡51,767.36, the amount paid therefor by the defendants, with a decree of foreclosure of vendor’s lien upon the whole survey subject to the provision that the south one-half of the survey should be first exhausted to pay •the indebtedness before resort to the north •one-half, and that the north one-half be sold in the event only the proceeds of the sale ■of the south one-half should be insufficient •to satisfy the indebtedness. From that judgment defendants Kynard and Boyd have appealed.

The first question to be determined is whether or not the superior title remaining •in Canda and his covendors, of which Tuek•er had due notice at the time he purchased, •and which superior title was acquired by Kynard and Boyd, should prevail as against Tucker’s title to the north one-half of the -survey. Notwithstanding the fact that Tucker was charged with notice of the superior title remaining in Canda and his associates, yet, if the holders of the superior title can be fully protected in their rights, equity would not sanction a decree forfeiting Tucker’s title in favor of the superior title, if Tucker’s failure to pay off the prior vendor’s lien notes has not, under the rules of equity, deprived him of the right to claim protection. Kynard and Boyd insist that, as Tucker has never paid, nor offered to pay, said notes, he ha.s no standing in a court ■of equity to deny their right to recover the superior title to the property. It will be noted, however, that in purchasing the north one-half of the survey Tucker did not assume the payment of the notos, and in his petition he expressly alleged that the south one-half of the survey, which, as to him, was primarily liable for debt, was of a value in excess of the amount due on the notes. Furthermore, after asserting a claim of title to the exclusion of the notes, he prayed that the entire survey be sold and the amount found to be due upon the notes to be satisfied first out of the proceeds of the south one-half of the survey before resort to the proceeds of the north one-half of the survey. Under those circumstances, we are of the opinion that it would be inequitable to say that he should be required to pay off the entire debt as a condition precedent to his resistance of the defendants’ suit to 'recover title to the north one-half of the survey, when, as between him and his vendor and all other grantees in the several deeds above mentioned, he clearly had the right to have the south one-half of the survey exhausted for the payment of the debt before resort I to the north one-half. While it is well settled that when a vendor’s lien is expressly retained to secure the payment of purchase money for the land the superior title remains with the vendor, it is equally well settled that, if the vendor can have a foreclosure of his lien, and thus secure payment of the full purchase price of the land in accordance with the terms of his conveyance, he will be limited to that relief to the exclusion of the assertion of the superior title against his vendee, or any one claiming under him, when the equities of such persons so require. Pierce v. Moreman, 84 Tex. 596, 20 S. W. 821; Stone Land & Cattle Co. v. Boon, 73 Tex. 548,11 S. W. 544.

According to the terms of the seven vendor’s lien notes, there was due thereon at date of the judgment $2,126.13. Kynard and Boyd had purchased those notes for the sum of $1,767.36, which was the face value of the notes at that time, in March, 1912, the date of the defendants’ purchase of the same, and which was nearly two years prior to the date of judgment. In the judgment rendered the court decreed foreclosure upon the entire survey for the amount so paid, and appellants complain that reversible error was committed in refusing a foreclosure for the sum of $2,126.13, the amount appearing to be due upon the notes at the date of the judgment. In the judgment it is recited that no proof was offered to show the value of the south one-half of the survey. As noted already, appellants were not entitled to any personal judgment against Tucker for the debt, because he had not obligated himself to pay the same. In the absence of a recovery of the land, the most that appellants could rightfully expect would be to subject Tucker’s half of the survey to payment of the balance due on the notes after applying the value of the south one-half of the survey as a credit thereon. Appellants could not properly ask for a foreclosure of the lien against the south one-half of the survey, which was tlieir own property. If they desired to sell the south half of the survey for the purpose of paying the notes, they could do so without the aid of the court, and we know of no decision that would grant them such aid. Instead of foreclosing the lien upon the south half of the survey, as well as the north half, the proper procedure would have been to ascertain the value of the south half, and, if that value was less than the- amount of the debt, to have decreed a foreclosure for the balance against the north half of the survey. In the absence of proof, we cannot say that the value of the south half is less than the full amount appearing to be due upon the notes, and hence it does not appear that the error, if any, now complained of resulted in injury to appellants. Rule 62a, 149 S. W. x.

All assignments of error are overruled, and the judgment is affirmed.


author: HIGGINS, J.

text:
    ANDERSON & DAY v. DARSEY.
    (No. 375.)
    (Court of Civil Appeals of Texas. El Paso.
    Dec. 17, 1914.)
    1. Abpeal and Error (§ 736) — Assignments ob Error — Subbicienoy.
    An assignment complaining of the overruling of distinct and unrelated motions for a directed verdict cannot be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3028, 3029; Dec. Dig. § 736.]
    2. Appeal and Error (§ 724) — Assignments ob Error — Subbicienoy.
    Assignments of error, which set out the substance of the bills of exception referred to simply by number, cannot be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2997-3001, 3022; Dec. Dig. § 724.]
    3. Appeal and Error (§ 501) — Preservation ob Grounds ob Review in Court below— Bills ob Exception.
    Assignments on the refusal of special charges will not be reviewed, unless exceptions were preserved by bills taken according to Acts 33d Leg. c. 59.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 2300-2305; Dec. Dig. § 501.]
    4. Appeal and Error (§ 1060) — Review-Harmless Error.
    Defendant’s counsel said of one of the plaintiffs, “God help you if you fall into the hands of one of these town lot salesmen.” He also spoke of his client as an honest old farmer and of the income of town lot salesmen as ill-gotten gains. Exceptions- to these ■ remarks being overruled, he stated that to his knowledge more town lot salesmen had been indicted for swindling and sued for fraud than any other class of men. On objection the jury were directed to disregard the remarks, and counsel apologized, but said that he believed what he said was true. Objections to this remark were overruled. Held, that the argument of defendant’s counsel, which was wholly without the record, was so calculated to inflame the jury that it constituted prejudicial error necessitating a reversal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4135; Dec. Dig. § 1060.]
    Error from District Court, Culberson County ; Dan M. Jackson, Judge.
    Action by J. R. Day and Levi Anderson against G. E. Darsey. From a judgment for defendant, plaintiffs bring error.
    Reversed and remanded.
    Chilton & Chilton, of Dallas, and S. W. White, of Douglas, Ariz., for plaintiffs in error. Joe Irby, of Van Horn, and R. M. Reed, of El Paso, for defendant in error.

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

   HIGGINS, J.

On October 26, 1911, plaintiffs in error sued Darsey in trespass to try title. A writ of sequestration was issued, and the premises in controversy seized thereunder, and Darsey dispossessed; his household effects and certain feedstuff being removed from houses upon the premises.

Defendant answered by plea of not guilty, and in reconvention pleaded .that he was' entitled to the possession of the premises until January 1, 1912, under a rental contract with plaintiffs, and that the writ of sequestration had been wrongfully and maliciously issued, whereby he had' sustained actual damages in the sum of $610 and $5,000 exemplary damages, for which he prayed judgment.

Upon trial, verdict and judgment was rendered in plaintiff’s favor for title and possession of the premises sued for and in defendant’s favor, upon his cross-action, for actual damages in the sum of $146 and $854 exemplary damages.

The first assignment reads:

“The trial court erred in refusing to grant the several motions of plaintiffs to peremptorily charge the jury to find a verdict for the plaintiffs in said cause against the defendant, for the rea-, sons set out in said motions.”

The assignment cannot be considered. It relates to the action of the court in overruling distinct and unrelated motions. It is also too general. Neither is. the substance of the bills of exception to which we are referred by the assignment, set out in the subjoined statement, as required by the rules. For the reasons indicated, the assignment will not be considered. Burrow v. Brown, 167 S. W. 254.

The second and third assignments relate to rulings upon evidence. The substance of the bills of exception taken thereto are not given; we being referred, simply, to the bill by its number. This is not sufficient, for which reason the assignments are not considered. Canal Co. v. Southwell, 50 Tex. Civ. App. 92, 109 S. W. 435; Walker v. Railway Co., 54 Tex. Civ. App. 406, 117 S. W. 1020; Railway Co. v. Lane, 118 S. W. 847.

The fourth, eighth, and ninth assignments complain of the refusal of special charges. Our attention is not directed to bills taken to the refusal of these charges, as required by chapter 59, Acts of 1913, for which reason the assignments are overruled. Railway Co. v. Wadsack, 166 S. W. 42; Railway Co. v. Galloway, 165 S. W. 546; Insurance Co. v. Rhoderick, 164 S. W. 1067; Heath v. Huffhines, 168 S. W. 974.

In the course of his argument to the jury, counsel for Darsey several times referred to the plaintiff Day as “that Dallas town lot salesman,” and made the following remark: “God help yon if you fall- into the hands of one of these town lot salesmen” — - and referred to the income of town lot salesmen as “ill-gotten gains,” and thereafter-wards several times referred to the defendant as “an honest old farmer.” Counsel for plaintiff in error objected to these remarks, which was overruled by the court and exception taken. The offending counsel in the course of his argument further said:

“To my own personal knowledge, more town lot salesmen have been indicted for swindling and more have been sued for fraud than any other class of men on the face of the earth.”

Objection was likewise made to these remarks, sustained, by the court, and the jury instructed not to consider same. Whereupon counsel made the further remark:

“Gentlemen of the Jury: If I have made a mistake or have done Mr. Day wrong, I want to apologize to you for it,_ and will say that I was honest in it and believed I was right in what I said.”

To which objection was likewise made, and the court requested to instruct the jury not to consider same, which objection and request was overruled and proper exception taken.

The remarks complained of were highly improper and well calculated to inflame the passions and prejudices of the jury against the plaintiff. The so-called withdrawal or retraction of a part of the remarks only added to the injury theretofore inflicted. They were wholly dehors the record and could have had no proper influence upon the jury, and it is most likely that they were improperly swayed thereby, and their verdict prompted other than by a fair and impartial consideration of the evidence. The remarks are considered so improper and so likely to have fulfilled the purpose for which they were evidently made as to necessitate a reversal, and it will be so ordered.

Reversed and remanded.


author: CONNER, C. J.

text:
    FT. WORTH & R. G. RY. CO. v. DUBOSE.
    (No. 8059.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Dec. 12, 1914.)
    1. Carriers (§ 247) — Who abe Passengers —Person Taking Wrong Train.
    Where a passenger at a transfer point is told that her train would arrive at 1:30 a. m., and she at that time, in the absence of a watchman and sufficient light, boarded an excursion train of another road using the depot, from which train she was evicted, she was a passenger on the excursion train, and such carrier was bound to use a high degree of care.
    [Ed. Note. — Eor other cases, see Carriers, Cent. Dig. §§ 984-993; Dec. Dig. § 247.]
    2. Carriers (§ 382) — Eviction or Passenger-Excessive Damages.
    Seven hundred and fifty dollars held not excessive damages for wrongful eviction from a passenger train of a woman 67 years of age and infirm, where she was accompanied by her daughter and five grandchildren, two of whom were sick, and the eviction took place five or six miles from the starting place, and the return course led through a squalid part of the city inhabited by negroes, and they were incumbered with baggage and compelled to carry some of the children, all of which made plaintiff sick for over a month afterwards.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1478, 1483-1491; Dec. Dig. § 382.]
    Error from District Court, Erath County; W. J. Oxford, Judge.
    Action by Lizzie Dubose against the Ft. Worth & Rio Grande Railway Company.
    Erom a judgment for plaintiff, defendant brings error.
    Affirmed.
    Andrews, Streetman, Burns & Logue, of Houston, and Marshall Ferguson, of Stephen-ville, for plaintiff in error. Chandler & Pan-nill and A. P. Young, all of Stephenville, for defendant in error.

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

   CONNER, C. J.

On October 25, 1910, Lizzie Dubose, the defendant in error, together with her daughter, Mrs. J. W. Hales, and five grandchildren, purchased tickets at Wallace, in Austin county, over the Gulf, Colorado & Santa Fé and the Texas & Pacific Railways to Colorado City, in Mitchell county. The party arrived at Ft. Worth, the connecting point between the railways named, about 8 o’clock p. m. on the same day, and went over to the Texas & Pacific passenger station, where they were informed that the west-bound passenger train of that company was late but would leave Ft. Worth for Colorado City about 1:30 a. m. on the next morning. That night an excursion train from the East, belonging to the Ft. Worth & Rio Grande Railway Company, plaintiff in error, reached the Texas & Pacific station, whose depot and facilities it uses, at Ft. Worth, about 1:30 a. m. of the morning of October 26th. Mrs. Dubose, her daughter and grandchildren, boarded this train through mistake. Mrs. Dubose testified that the night was dark; that there was no watchman neither at the depot entrance to the passenger sheds, nor at the train, thus accounting for her mistake. Shortly after, Mrs. Dubose and party had taken passage, the train proceeded on its way to a destination other than Colorado City, and according to the testimony of Mrs. Dubose, her daughter, and another witness, after the train had gone five or six miles, the conductor discovered the presence of the party upon the train and ejected them therefrom upon a lonely prairie, and they were required to walk back to the Texas & Pacific station.

It was alleged that plaintiff in error was guilty of negligence in ejecting the party at the time and under the circumstances it did; that at the time Mrs. Dubose was 67 years of age, weak and infirm; that part of the way led through a dangerous, squalid part of the city of Ft. Worth inhabited by ne^ groes; that she suffered fright, physical pain, exhaustion, and fatigue, and was thereby made sick, and suffered great physical and mental pain, and would continue to so suffer during the remainder of her life.

The railway company answered by a general denial, and that the plaintiff had boarded its 'train without its knowledge or consent through her own mistake and her own negligence, and that she departed from the train voluntarily. The trial before a jury resulted in a verdict in plaintiff’s favor for $750.

Among other things, the court charged the jury that:

“The defendant would be bound to use that high degree of care that a very cautious, prudent, and competent person would use under the same or similar circumstances.”

It is insisted that the plaintiff was but a licensee or trespasser upon the defendant’s train, and that the charge quoted was erroneous in that it placed upon the defendant too high a degree of care; that defendant, under the circumstances,' was only bound to exercise ordinary care.

While it is true that Mrs. Dubose did not have transportation over the railway line in question and did not intend to become a passenger on one of the plaintiff in error’s passenger trains, and that she boarded the train in question without any express invitation on the part of plaintiff in error, yet the evidence supports the verdict to the effect that in doing so she was without negligence, and, under such circumstances, it seems to be definitely settled in this state that she became a passenger upon plaintiff in error’s train, and as such was entitled to receive that high degree of care imposed by the charge objected to. I. & G. N. Ry. Co. v. Gilbert, 64 Tex. 536; St. L. S. W. Ry. Co. v. Pruitt, 79 S. W. 598.

The sufficiency of the evidence to support the verdict and judgment is attacked in ’ but one respect. It is insisted that the amount of the damages assessed by the jury and adjudged by the court is excessive. The evidence seems to fully support the plaintiff’s allegations to the effect that she was old and infirm, of which the conductor was informed, and that the party was unaccompanied; that two of the five children were sick; that they were also incumbered with their baggage; and that the conductor was requested to return them to the depot, which he refused to dp in a rough manner, requiring the party to leave the train. According to other testimony, the night was dark and cold, and Mrs. Dubose, as well as her daughter, testified that they were badly frightened and alarmed; that they were compelled to carry some of the children and their baggage and were greatly fatigued by the walk back to the Texas & Pacific station; that Mrs. Du-bose suffered great mental and physical pain; that she was sick over a month aft-erwards on account of the hardships suffered that morning; and that in fact she had never fully recovered therefrom. As has been often said, there can be no accurate measure for damages in cases of this character; the amount to be assessed resting very largely in the discretion of the jury and trial court. Under the circumstances stat■ed, therefore, we do not clearly see our way to disturb the verdict No other question having been presented, it is ordered that the judgment be affirmed.


text:
    GULF, C. & S. F. RY. CO. v. McKINNELL.
    (No. 8064.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Dec. 19, 1914.)
    1. New Teial (§ 44) — Misconduct or Jueoes —Impeopee Abqument.
    A showing that certain jurors in a personal injury action agreed to a verdict for a larger amount than they thought necessary to compensate plaintiff for the injury sustained because of the argument of other jurors that he would have to pay from $1,500 to §2,500 for attorney’s fees was sufficient to entitle defendant to a new trial.
    [Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 80-85, 105; Dec. Dig. § 44.)
    2. Evidence (§ 477) — Opinion Evidence-Physical Condition — Foundation.
    Testimony by a physician that if plaintiff had a partial dislocation of his hip witness could make a rational guess as to what was the matter with him, and he doubted whether he could be cured of the pain in his hip, was improper, where there was no evidence that plaintiff had a partial dislocation of the hip.
    [Ed. Note. — For other eases, see Evidence, Cent. Dig. §§ 2237-2241; Dec. Dig. § 477.]
    3. Damages (§ 168) — Evidence — Physical Condition.
    In an action for personal injuries, where plaintiff testified that after a wreck he suffered pain in his hip and that his ability to walk had been greatly impaired, it was proper to permit other witnesses to testify that after the injury they observed that plaintiff walked with a limp.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 480, 482-486; Dec. Dig. § 168.]
    4. Evidence (§ 127) — Declabations—Physical Pain.
    In an action for personal injuries, declarations of plaintiff to his physician that he became tired when standing and could not work as long as formerly, and did not sleep as well, were not admissible as complaints of present pain and suffering.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 377-382; Dec. Dig. § 127.]
    5. Damages (§ 166) — Evidence — Physical Condition — Opebation.
    In an action for personal injuries, testimony concerning an operation performed on plaintiff was inadmissible, where there was no evidence that it was made necessary by the injury sustained in an accident.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 478, 479, 481; Dec. Dig. § 166.]
    6. Teial (§’ 194) — Insteuctions—Weight oe Evidence.
    In an instruction on the measure of damages for personal injuries, a statement, that the jury might consider the earning capacity of plaintiff before and since the accident if from a preponderance of the evidence in the case they found a difference therein, was not objectionable as a charge upon the weight of the evidence.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 413, 436, 439-441, 446-454, 456-466; Dec. Dig. § 194.]
    7. Damages (§ 38) — Pebsonal Injuries — Diminished Eaening Capacity.
    A railway mail clerk, whose earning capacity in certain line» of business had been diminished as a result of personal injuries, can recover for such diminished earning capacity, though he received his regular compensation while unable to wort, and since then had been receiving-a greater compensation than before the accident.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. II 237-241; Dec. Dig. § 38.]
    Appeal from District Court, Tarrant County; Marvin H. Brown, Judge.
    Action by Harry D. McKinnell against the Gulf, Colorado & Santa Fé Railway Company. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    Terry, Cavin & Mills, of Galveston, and Lee & Lomax and W. D. Smith, all of Ft. Worth, for appellant Clendenen & Simmons, of Ft. Worth, for appellee.

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

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

   DUNKLIN, J.

As a result of a collision between two trains operated by the Gulf, Colorado & Santa Fé Railway Company near the town of Davis, Okl., Harry L. McKinnell, a railway mail agent, who was riding on one of those trains, sustained personal injuries, and he instituted this suit against the company to recover damages therefor. He recovered judgment for the sum of $6,500, and the company has appealed.

As one of the grounds stated in the defendant’s motion for new trial, it was alleged, in substance, that the jury during their retirement for the purpose of reaching a verdict improperly considered and were influenced by suggestions and arguments, made by some of them to the rest, that plaintiff would be required to pay from $1,500 to $2.500 to his attorneys for their services in prosecuting the suit, and that damages should be allowed in a sum sufficient to cover that expense in addition to the amount necessary to compensate him for his injuries. An affidavit of Geo. L. Wilkinson, one of the jurors, was attached to the motion. That affidavit reads in part as follows:

“That before the jurors had agreed on the amount of the verdict affiant stated to the other jurors that he thought $3,000 would be full compensation to the plaintiff, and that he thought the verdict should be returned for that amount. That following the suggestion of affiant as to the amount the verdict should be for, several of the jurors stated that plaintiff would have to pay his attorneys, and there was quite a general discussion as to attorney’s fees, it being stated by some of the jurors that the attorneys would get $2,000 to $2]500. That this was stated, as affiant understood, g.s a reason why affiant and others who were in favor of giving plaintiff an amount in the neighborhood of $3,000 should consent to give more. That affiant was influenced by the argument as to attorney’s fees and finally consented to give $6,500 to plaintiff because of the argument that plaintiff would have to pay his attorneys out'of the judgment he recovered.”

In addition to that affidavit, the court, in considering the motion, heard the oral testimony of Samuel Calcaterra, C. I. Brown, and S. O. Skieldig, also members of the jury, who corroborated the affidavit of Geo. L. Wilkinson, to the effect that plaintiff would likely be required to pay from $1,500 to $2,500 as attorney’s fees, and from whose testimony it clearly appears that that suggestion and argument influenced them, and probably other jurors, who did not testify, to allow damages in a sum to cover such expenses over and above the amount necessary to compensate plaintiff for his injuries. No testimony was offered to rebut the testimony of these jurors, and we are of the opinion that the court erred in refusing to grant a new trial. For this error the judgment must be reversed.

In view of another trial, we will make some observations upon questions presented by other assignments. Dr. McLean, witness for the plaintiff, testified that:

“If the plaintiff had a partial dislocation of the hip, the Witness could make a rational guess as to what was the matter with the plaintiff’s hip and that he doubted if plaintiff could be cured of the pain in the hip.”

Objection was urged to this testimony by tlie defendant; one of the grounds of the objection being that no evidence was introduced to show any partial dislocation of plaintiff’s hip. We are of the opinion that the testimony should have been excluded upon that objection, the truth of which we find was sustained by other evidence, which was uncontroverted.

Appellant insists that the court erred in admitting testimony of the witnesses O’Sullivan and Dr. McLean, to the effect that after the wreck in question plaintiff was observed to walk with a limp; the ground of the objection to such testimony being that there whs no competent evidence to show that such limp was the proximate result of any injury received in the wreck. That objection was without merit, in view of plaintiff’s testimony as follows:

“After I was extricated from the wreck, I felt smart sensations in my hip, in my groin, and in my leg, and a feeling of pain on standing,” and further that following the accident his former ability to walk had been greatly impaired.

Dr. McLean testified that during the six or eight months subsequent to the wreck, and while plaintiff was under his observation, plaintiff complained of a tenderness in his spine and of becoming tired when standing on his feet, that he could not work as long as previously on account of getting exhausted, and that he did not sleep as well as he formerly did. This testimony was objected to as a whole upon the ground that it was hearsay, and therefore incompetent. It is a familiar rule that testimony of complaints of present pain and suffering is admissible upon the principal of res gestse. Evidently the testimony was admitted under that rule. It does not appear whether or not complaint of tenderness in the spine was made under circumstances that would make it admissible under that rule, and therefore we cannot say that it affirmatively appears that the court erred in admitting that statement ; but it is apparent that the rest of the testimony was not admissible under that rule, being hearsay and subject to the objection urged.

Complaint is made of the refusal of the court to give the defendant’s requested charge No. 6, which was, in effect, that plaintiff was not entitled to recover for a certain physical condition mentioned in that instruction, and alleged in plaintiff’s petition. Some evidence was offered relative to that condition which was of such a nature as might influence the jury in the rendition of their verdict, and, while the court did not submit that issue in his general charge, we are of the opinion that the requested instruction should have been given to. insure the defendant against any possible harm by reason of the testimony relative to that condition.

The sixth assignment of error is addressed to the admission of testimony relative to an operation performed for the particular physical condition last referred to. The objection to the testimony was that there was no proof that such operation was made necessary by reason of the accident. Upon a careful review of the record, we are of the opinion that the objection should- have been sustained.

The charge of the court upon the measure of damages reads as follows:

“In arriving at the amount of damages, if any you give to the plaintiff, you may take into consideration the physical pain, if any, sustained by the plaintiff by reason of said wreck; and such as you may find, if any, he will suffer in the future. You may also take into consideration the earning capacity and ability of the plaintiff before and since said accident, if from a preponderance of the evidence in the case you find a difference therein, and if from a preponderance of the evidence in the case you find that the plaintiff has sustained injuries, if any, from which he has not yet recovered, if you so find, or from which he will not in the future recover, if you so find, then you may take such fact or facts into consideration, if any you find, in arriving at the amount of damages, if any, that you may assess against the defendant and for the plaintiff.”

Error has been assigned to that instruction upon the ground that the language used, “you may also take into consideration the earning capacity and ability of the plaintiff before and since said accident, if from a preponderance of the evidence in the case you find a difference therein,” is a charge upon the weight of the evidence, and upon the further contention that there was no proof that plaintiff’s earning capacity had been lessened by reason of his alleged injuries. Clearly, the charge is nbt subject to the criticism that it was upon the weight of the evidence. It is a correct statement of the law upon that issue. Testimony offered by the plaintiff tended to show that his ability to earn money in some lines of business at least had been diminished by reason of the injury which he claimed to have received in the accident. Such testimony was not neces-

sarily overcome by proof that he received his regular pay from the government during the six months he was “laid off” after the accident, and, since resuming' the duties of his employment, his salary has been increased to a sum greater than he received before the accident. Accordingly, the assignment last noted is overruled.

For the reasons noted, the judgment is reversed, and the cause remanded.


text:
    MAHANEY v. LEE et al.
    (No. 8040.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Nov. 14, 1914.
    Rehearing Denied Dec. 19, 1914.)
    1. Appeal and Errob (§ 51) — Jurisdiction —Amount in Controversy.
    Where a petition alleged that plaintiffs sold defendant a horse for $75, that defendant, having failed to pay for the horse, agreed to either return it in satisfaction of the debt or give a secured note for $116, covering the price of the horse and another debt due from defendant to plaintiffs, and that defendant had failed to return the horse or execute the note and mortgage, and prayed judgment for possession of the horse or $75, the value thereof, and for the $41 due on the other debt, it was sufficient to authorize a recovery of $116 and give the Court of Civil Appeals jurisdiction of defendant’s appeal from an adverse judgment, especially where defendant urged a counterclaim for $154.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 237, 267; Dec. Dig. § 51.]
    2. Sales (§§ 19, 20) — Beptjrchase — ConTRACT^CONSIDERATION— SUFJTCIENCY.
    A seller’s agreement to repurchase, not being an obligation growing out of the original sale, was a sufficient consideration for a new contract obligating the buyer to either return the horse bought or give a secured note for the price and another debt, though the buyer’s debt for the horse was barred by limitations.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 31, 32; Dee. Dig. §§ 19, 20.]
    3. Sales (§ 377) — Pleading Conclusions op Law prom Facts Alleged.
    Where the petition in a seller’s action alleges a breach of a new contract obligating the buyer to either return the horse bought or give a secured note for the price and another debt and prays judgment for the agreed face of the note, it is not demurrable for failure to specifically allege an agreement that the old contract should be merged in the new; such being the necessary effect of the new contract.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. § 1092; Dee. Dig. § 377.]
    Appeal from Stonewall County Court; W. J. Arrington, Judge.
    Action by W. II. Lee and another against C. L. Mahaney. From a judgment for plaintiffs, defendant appeals.
    Affirmed.
    J. M. Carter, of Texarkana, for appellant. T. E. Knight, of Aspermont, and Theodore Mack, of Ft. Worth, for appellees.

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

   DUNKLIN, J.

This was an action for title to and possession of a horse and for debt, instituted by W. H. Lee and J. M. Lee against C. L. Mahaney, and from a judgment in favor of plaintiffs for the recovery of the horse, and in the. alternative, for $75, the value of the horse, the defendant has appealed.

In their petition plaintiffs alleged that in the spring of 1910 they sold the defendant a horse for the sum of $75 to be paid in the fall of 1910; that on March 3, 1913, the defendant, having failed to pay for the horse, agreed with plaintiffs to return him in full satisfaction of said debt, unless defendant should execute and deliver to plaintiffs a promissory note in their favor for the sum of $116 to cover the purchase price of said horse of $75 and for $41, which defendant then owed plaintiffs for ginning cotton, and' would also execute a mortgage on the horse and two bales of cotton to secure the payment of said note. It was further alleged that defendant wholly breached his contract last mentioned by refusing either to return the horse, or to execute said note and mortgage. Plaintiffs further alleged that the horse was reasonably worth $75 and prayed for a judgment for the possession thereof or for $75, the value thereof, in the event he could not be returned, and also for judgment for the $41 due by the defendant for ginning cotton.

Appellees have suggested that $75 was the only amount in controversy, and that therefore this court is without jurisdiction to entertain this appeal". We are of the opinion that as against the general demurrer the petition was sufficient to warrant a recovery of the $41, which was specifically alleged to be due for ginning cotton, as well as for $75, the value of the horse. Furthermore, defendant urged a counterclaim for $154, which we do not think was abandoned, as appellees insist, since we find in the record that evidence was introduced to sustain it. Hence appellees’ contention now under discussion is overruled.

Appellant insists that the court erred in overruling his general demurrer to the plaintiffs’ petition. This assignment is predicated upon the proposition that the petition showed a demand based upon the alleged agreement entered into March 3, 1913, which was a new contract made in lieu of defendant’s contract of purchase of the horse and was without any new consideration to support the same, and because the petition failed to contain an allegation of- any specific agreement that the old contract should be liquidated and merged into the new contract. By another assignment it is further insisted that as the alleged agreement of March 3, 1913, was a parol contract to pay the preexisting debt for the purchase price of the horse and was without any new consideration to support it, the court erred in overruling defendant’s plea of two years’ limitation urged to plaintiffs’ suit. According to the alleged agreement of March 3, 1913, plaintiffs bound themselves, in effect, to repurchase the horse from the defendant, and in consideration therefor to cancel defendant’s obligation for $75. Clearly, this agreement to repurchase the horse was not an obligation growing out of the original"sale, and was a sufficient consideration to support the new contract, and the fact that the debt which defendant owed for the horse was then barred by the statute of limitation of two years could make no difference. Cotton States Bldg. Co. v. Jones, 94 Tex. 497, 62 S. W. 741. We are of the opinion further that it was not necessary for the petition to contain a ■ specific allegation that it was agreed between the parties that the old contract should be merged into the new, since such was the necessary effect of the new contract. As the new contract was based upon a valuable consideration, and as the suit was instituted within less than two years from the date it was entered into, the court did not err in overruling defendant’s plea of limitation.

By another assignment of error appellant insists that the evidence fails to support the judgment. We are of the opinion that the evidence set out in the assignment was sufficient of itqelf to sustain the judgment, and therefore the assignment is overruled.

The judgment is affirmed.