author: HIGHTOWER, O. J.

text:
    HOUSTON E. & W. T. RY. CO. v. LYNCH.
    (No. 393.)
    (Court of Civil Appeals of Texas. Beaumont.
    Dec. 14, 1918.
    On Motion for Rehearing, Feb. 5, 1919.)
    1. Judgment <&wkey;251(l) — Conformity to Pleadings—Negligence—Pleading.
    In actions against a common carrier for injuries, negligence not alleged, though proved, cannot form basis of judgment.
    2. Trial <&wkey;54(l)—Statement by Injured Person—Unlimited Introduction.
    In action for injuries sustained when leaving train by person accompanying passengers, plaintiff’s statement to railroad’s claim agent, having been introduced by railroad without limitations as to its purpose, should he considered and treated for all purposes.
    3. Carriers <&wkey;318(10) — Oarriag-e or Passengers — Injury While Alighting — Proximate Cause — Sufficiency of Evidence.
    In action against railroad for injuries to man while alighting as train started, after he had placed his wife and daughter aboard, evidence held to authorize finding that railroad’s failure to hold train a reasonable length of time at station, to enable plaintiff to alight, was proximate cause of his injuries.
    4. Trial <&wkey;352(l) — Instruction — Submission on Special/Issues.
    Where case was submitted on special issues, a requested charge, applicable only if the case had been submitted on a general charge, was properly refused.
    5'. Trial <&wkey;352(l) — Instructions—Submission on Special Issues.
    Requested instructions, merely general and without reference or not directing the jury’s attention to any particular special issues submitted in the court’s charge, are properly refused.
    6. Carriers @=>304(3) — Persons Accompanying Passengers — Duty to Hold Train.
    If, at a railroad’s station, custom prevailed for men to escort women passengers on board trains, railroad holding trains long enough to permit men to alight, it was duty of railroad on particular occasion to observe custom, and allow a man who had seen his wife and daughter aboard the train reasonable time to alight.
    7. Trial @=>252(10) — Instruction—Support in Evidence.
    In action for injuries sustained when leaving train by person accompanying passengers, instruction on effect of ignorance of brakeman of plaintiff’s intention to alight held properly refused, in absence of evidence on which to base it.
    8. Trial @=>352(1) — Instruction — Weight op Evidence.
    In action for injuries sustained when leaving train by person accompanying pasengers, charge submitting special issue held not upon weight of evidence.
    9. Trial @=>352(4) — Instructions—Support by Pleading.
    In action for injuries sustained when leaving train by person accompanying passengers, special issues or instructions requested by railroad held properly refused, where no such issues were presented by the pleadings.
    10. Trial @=>352(4) — Instruction—Indecisive Character.
    In action for injuries sustained when leaving train by person accompanying passengers, a special issue or instruction requested by the railroad which would have been decisive of no issue in the case, however it might have been answered, was properly refused.
    11. Appeal and Error @=>1050(1) — Harmless Error — Evidence.
    In action for injuries to a man leaving a train after placing his wife and daughter aboard, action of court in overruling road’s objection to answer bf daughter as a witness as irrelevant, immaterial, and hearsay, and also as opinion, held harmless. '
    12. Appeal and Error @=>1050(1) — Harmless Error — Opinion Evidence.
    In action against railroad for injuries to man leaving train after placing wife and daughter on board, assignment complaining of admission of testimony of daughter that train did not stop long enough to permit plaintiff to assist herself and her mother on board, and to alight, objected to as hearsay, and conclusion, will be overruled where witness had stated the facts, and the same fact was testified to by plaintiff appellee without objection.
    13. Appeal and Error @=>1050(1) — Harmless Error — Evidence.
    In action for injuries to a man leaving a train after placing,his wife and daughter on board, admission of testimony of daughter that road’s brakeman heard her father tell her he would assist her on train and carry her grip, if it was a conclusion of the witness, held harmless.
    14. Trial @=>350(1) — Submission op Issue.
    Only where there is a dispute in evidence touching some material issue is the trial court required to submit such issue for the jury’s determination.
    On Motion for Rehearing.
    15. Trial @=>352(4) — Issue Hypothesizing Specific Facts — Contributory Negligence.
    In action against railroad for injuries to man leaving train after placing wife and daughter on board, court erred in refusing to submit special issue as to contributory negligence requested by railroad, which issue hypothesized specific facts requiring finding of contributory negligence, though road had interposed only general plea of contributory negligence.
    16. Trial @=>352(1) — Submission of Special Issue — Contributory Negligence.
    In action for injuries sustained when leaving train by person accompanying passengers, special issue as to contributory negligence, submission of which was requested by road, held not correctly refused as taking from jury issue of proximate cause.
    17. Carriers @=>339 — Passengers — Injury —Contributory Negligence — Proximate Cause.
    If man in attempting to leave train, which had started, after placing his wife and daughter on board, was negligent, as matter of law, such negligence proximately contributed to his injury when he fell from steps of car.
    Appeal from District Court, Liberty County; J. Llewellyn, Judge.
    Suit by J. S.' Lynch against the Houston East & West Texas Railway Company. From judgment for plaintiff, defendant appeals.
    Reversed, and cause remanded. •

      MeMeans, Garrison & Pollard a'nd Stevens & Stevens, all of Houston, for appellant.
    Baldwin & Baldwin, of Houston, for ap-pellee.
   HIGHTOWER, O. J.

The statement of the nature and result of this suit, as made in appellant’s brief, is' found to be substantially correct, and is as follows:

J. S. Uynch, appellee, brought this suit against the Houston East & West Texas Railway Company, appellant, to recover damages for personal injuries alleged to have been sustained my him while disembarking from one of defendant’s passenger trains at the station of Cleveland, Tex., which he had entered for the purpose of assisting his wife and married daughter, who were taking passage on said train to the city of Houston.

The appellee alleged that on the 3d day of November, 1916, his wife and his married daughter, Mrs. R. B. Baldwin, were going to Houston on a visit, and had with them their suitcases and certain bundles, and needed the assistance of appellee in boarding and securing seats on said train, and that he went with them to defendant’s passenger depot at Cleveland for the purpose of assisting them in getting their tickets, carrying their baggage, and assisting them to seats on the train; that said train stopped at the depot in Cleveland for the purpose of letting passengers off and on, and that appellee and his wife and 'daughter were near the steps of the car when the train stopped, and that appel-lee then informed the brakeman and other servants of appellant in charge of said train that he himself was not leaving on the train, but was only assisting the two ladies to board the train and procure seats, and that he wanted to get off before the train started; that immediately thereafter appellee'entered the car for the purpose of assisting said ladies with their baggage and to procure seats in the car; that said train did not remain the usual and customary length of time at said station, but started before appellee had been allowed a reasonable time to assist said ladies with their baggage into said car and to assist them to seats therein; that appellee thereupon hurriedly set down the grips which he was carrying for his wife and daughter, and immediately went to the front end of the coach which he had entered, for the purpose of alighting therefrom, but was prevented from getting off by the brakeman or porter, who was then assisting another lady passenger up the steps of said coach; that appellee then immediately went to another step across the vestibule between said coaches, and there attempted to alight from said- train, believing that he could safely get off, but that he was thrown to the ground by a sudden jerk from the train, falling on his head, neck, and shoulders, and received injuries, which were specifically mentioned in his petition.

Appellee further alleged that It was and had been the custom, well known to and acquiesced in by appellant, its agents, servants, and employés, at the station of Cleveland, to allow male persons to assist lady passengers aboard its passenger trains, and to assist them in finding seats thereon, and to hold said train for such purpose; that on the occasion in question appellant negligently failed and refused to hold the train a reasonable or sufficient length of time to allow appellee to perform such service and to disembark' from said train; that appellant’s servants negligently started said train without giving appellee reasonable time to disembark after having entered said train for said purpose; that in view of such custom as aforesaid, and under the circumstances mentioned, it was the duty of appellant to hold said train a reasonably sufficient length of time to allow appellee to enter the same and assist his wife and daughter, as aforesaid, and then to alight therefrom before said train should be started; that the act of starting said train before he had time to perform said services and to alight therefrom was negligence upon the part of appellant, and that such negligence caused his injuries.

It was further alleged that in alighting from said train appellee used proper care and diligence, and substantially that appel-lee was not guilty of any negligence which contributed to his injuries. There were other allegations in the petition describing minutely the character and extent of the injuries sustained by appellee while attempting to alight from said train.

Appellant answered by general denial and by a general plea of contributory negligence on the part of appellee.

The case was tried with a jury, and was submitted upon special issues, in answer to which the jury found:

(a) That the agents and servants of appellant knew, or should have known, of the presence of appellee on said train.

(b) That such servants and agents knew, or should have known, that appellee desired to alight from said train after assisting his wife and daughter thereon.

(c) That the servants of appellant .were guilty of negligence in failing to hold saia train a reasonable length of time under the circumstances to enable appellee to alight therefrom. /

(d) That such negligence was the proximate cause of appellee’s injury.

(e) That plaintiff was not guilty of contributory negligence in getting off of said train at the time and under the circumstances he did so.

The jury further found that $1,000 would fairly and justly compensate appellee for the injuries sustained by him.

Upon this verdict judgment was entered in favor of appellee for the sum of $1,000, with interest thereon, and for costs of suit, Appellant’s motion for new trial having been overruled, the case was properly brought here by appeal.

By the first assignment of error complaint is made of the action of the trial court in refusing to peremptorily instruct a verdict in favor of appellant. Under this assignment we find three propositions, which we will here state:

(1) Negligence not alleged, though proved, cannot form the basis of a judgment.

(2) Plaintiff, having alleged that the negligent failure of the defendant to hold its train at Cleveland a sufficient length of time to allow him to alight therefrom was the proximate cause of the injuries received by him in attempting to alight, was not entitled to recover upon proof of his being thrown from the train and injured by a jar, jerlt, or lurch of the train after it had started and at a time when he was not attempting to alight.

(3) Plaintiff, having alleged that the negligent failure of defendant to hold the train a sufficient length of time to allow him to alight was the proximate cause of his injuries, and having proved that his injuries were proximately caused by a sudden jerk, jar, or lurch of the train, the variance between the allegations and proof is fatal as to his right to recover, and the judgment cannot stand.

From the foregoing statement of the allegations of the appellee’s petition it is apparent that the proximate cause of the injuries sustained by him was the starting of the train before appellee had been allowed a reasonably sufficient time to assist his wife and daughter aboard said train and to procure seats for them, and then to alight therefrom.

We concede at the outset the correctness of the first proposition under this assignment, and adhere to the rule, firmly established in this state in cases of this character, that negligence not alleged, though proved, cannot form the basis of a judgment, and what we shall say further in disposing of this assignment will have reference to the second and third propositions above mentioned.

If, as contended by appellant, in effect, the undisputed evidence showed that the starting of the train on the occasion in question was not the proximate cause of appellee’s injury, then he was not entitled to a recovery in this case, and the trial court should have given the peremptory instruction requested by appellant. The contention of appellant that there was a variance between appellee’s allegations and proof as to the proximate caxjse of his injuries, as we understand it, is based upon appellee’s own testimony alone. Appellant takes the position that appellee’s testimony shows clearly that the proximate cause ' of his injuries was not the negligence of appellant, if any, in causing the train to be started; but that the proximate cause, as made by appellee’s testimony, was a sudden 'jerk, jar, or lurch of the train after the same had been put in motion, and at a time when appellee was not in the attempt to alight from said train. Appellee, among other things, on the trial below testified as follows:

“On the day of the injury, when the train stopped and the passengers alighted, my wife, daughter, and I were standing just a little out of the way of the passengers that came off of the train. We were not more than four feet, I think, from the steps when the train stopped, and, as well as I remember, there were not but three passengers got off, and we loaded on as quick as we could, my wife and daughter did, and when she went I went on behind to carry the grip for her. I didn’t lose any time from the time the train stopped until I reached the place where I set the grips down and left the train. I run back. The train was going before I could put the grips down. I did not know about how long the train had been in the habit of stopping there prior to that time; I never paid any attention to it. Frequently, though, it would stay there some little while. * * * I did not lose a bit of time that evening, not until I got that fall. When I entered the train I had just gone back five seats before I set the grip down. My wife and daughter stopped at the fifth seat. I didn’t make any hesitation at all. I turned around and started back. When I come back the negro brakeman was pulling Mrs. Trout up the steps. * * * That made me go to the vestibule of the next car just ahead of there. The two cars have a vestibule. There is a space on either side to enter either car. The car that I had entered was the hind car. I had walked up the steps to enter the hind car, and walked back about five steps when the ear started. Then I set the grips down and ran back. I retraced my steps to the same place I got on. Sure, I intended to get off there, but it was blocked. * * * I could have gotten off the steps there if it had not been anything there to prevent me from doing so, but, seeing the steps were blocked, I went on the next steps and started down. The next stops wore the car just ahead. With reference to how far those steps were from the steps I tried to enter, the two cars join each other, and I just went through the vestibule and down the other. I went back and went through the vestibule and attempted to go down the next steps. I suppose the speed of the car gave some kind, of lurch, and I started to fall, and I grabbed the handrail on the side to keep fi’om falling on my face. I don’t suppose I turned that thing loose. I was unconscious there for a while.' I tried to keep from falling. I would have fell on my face if I hadn’t grabbed that rail. I don’t know anything about whether the train was stopped after that. With reference to what effect the fall had on my mentality on that occasion, at that time I was pretty crazy. I didn’t know anything at all at that particular time. * * * I had carried my wife and daughter on previous occasions to that. I don’t know what the habit was, but then I have seen them doing that frequently (meaning men assisting women on the train). I had been doing that frequently prior to that time. With reference to whether I know of anything that prevented the conductor from knowing that custom or habit, I don’t know where the conductor was that evening, but I think he was back in the negro coach, or X understood he was. Prior to that time I don’t know of anything that prevented him from knowing that everybody was doing that, people assisted their family relations on and off.”

On cross-examination he testified:

“X couldn’t tell you whether the train was about on time when it came up on that day, because I wasn’t timing the train, but I presumé it was just about on time. I did pay particular attention as to how long the train stopped there; when it started before I could walk back five seats and back. I paid particular attention only to the time it started, when I didn’t get off; I supposed it stopped there about a minute. * ⅝ * x don’t know whether the train was running slow when it started or not. It wasn’t running slow when I started to get off; when I passed by this negro when I wanted to get off ⅞ * * were speeding up. I couldn’t tell you anything about how fast they were running when I reached the vestibule door; how many miles an hour. I couldn’t guess at it at all. I don’t know how fast the train was going, but I know it was running pretty fast; in my opinion, about 12 or 15 miles an hour. When I went out and passed the negro brakeman, and wont to the other vestibule and started down the steps to get off, the train was running about 14 miles an hour, and I suppose the engineer was speeding up trying to get faster, and in doing that it give a sudden jerk, and caused me to start to fall, and I grabbed that handrail to .keep from falling on my face. I was on the steps when that serious vital sudden jerk occurred. I was about on the third step, I suppose. That is not the bottom step. I wasn’t on the bottom step, I know, because I started to fall when I grabbed that handrail. I was on the second step, because I know I grabbed that handrail as I started to fall, and I couldn’t chock myself, and by doing that I kept from falling on my face. It is not a fact that I went out there and walked down those steps and stepped off. I suppose the train was running about 14 miles an hour. With reference to whether I went out there and was going to get off that train running 14 miles an hour, I was going to wait and see what they were going to do. If they hadn’t stopped, I wasn’t going to get off. I could have went on to Grover’s Mill. It was three miles down there, but I wasn’t going to take any chances on a train going like it was. It wasn’t the failure of the train to stop that caused me to get hurt, but it was the jerk that caused me to get hurt; the sudden lurch of the train caused me to start to fall. The company was negligent from my viewpoint, for which I am seeking to recover now, by reason of being negligent in having the train give a violent jerk. That’s what caused' me to fall. If it hadn’t been for that I never would have been hurt. I would have gone on to Grover’s Mill. I wouldn’t have attempted to get off there. It wasn’t the length of time that the train stayed there that interfered with me at all, but it was the sudden jerk that caused me to fall; and that’s wherein the company is negligent, for which I am suing.”

On redirect examination he testified:

“With reference to him asking me while ago if my sole complaint of negligence wasn’t the fact that that train gave a sudden lurch, my complaint of negligence is charged in this petition filed in this case. The statement of my case is made in that petition. It was the next day after this accident happened that this written statement was taken. * * * I have never had any experience in railroading. I have never had any experience in the speed of trains. I am not capable of telling the rate per hour a train is running. I don’t know anything about how fast the train was running at the time of the injury.”

Now, if we clearly understand the contention of appellant, it is that appellee having testified, as above shown, that it was the jerk or lurch of the train after the same had started which caused him to fall, and that but for such jerk or lurch the accident would not have happened, that clearly it was made to appear that such jerk or lurch of the train, after the same had started, was the proximate cause of appellee’s injuries, and that the negligent starting of the train, if there was negligence in that respect, was clearly shown by appellee’s own testimony not to have been the proximate cause of his injuries, but that the sudden jerk or lurch of the train, after the same had started, was shown by his testimony, by which he ought to be bound, to have been the proximate cause of his injuries.

We find from the record, however, that appellant on the trial below introduced in evidence a written statement which was made by appellee to appellant’s claim) agent on the day following the accident, which statement reads as follows: •

“Cleveland, Tex., 11 — 4—16.
“My name is J. S. Lynch, 67 years of age, occupation .Singer Sewing Machine agent. Yesterday, Nov. 3rd, 1916, I accompanied my wife and daughter, Mrs. R. B. Baldwin, to Cleveland, and put them on H. E. & W. T. train for Houston. We were at station waiting for train when it came, and as soon as people got off we immediately got on. I was carrying my daughter’s grips, as she had a baby. I carried my wife and daughter back about six seats from the front of the car, and found them seats, and about the time we found seats, and I was waiting for my daughter to be seated, bell rang, and I heard it and set grip down and went to front of train as fast as I could, and when I got to the vestibule train had started up and a negro porter and a woman were at the vestibple, a white lady, who the porter was holding and pulling up the steps; and had to walk to the vestibule in the car just ahead of one my wife was in, and by time I got to that vestibule train was running along pretty fast, and in getting off I fell — slipped and fell off. Don’t know what I slipped on, but I fell in getting off. Porter was in vestibule where we got on, and set grips up in vestibule all except one I had in my hand. I never said anything to porter when I got on and conductor wasn’t there. Train stood very short while; can’t say how long. I had no intentions of becoming a passenger, and was only assisting my wife and ■daughter on.”

The record in this case further discloses that according to the evidence of every witness who testified below, both for appellee and appellant, there was no jar, sudden jerk, or lurch of the train at the time appellee attempted to alight therefrom, or at any time after the train had started and before he alighted; and all the other evidence in the case for both sides was, substantially, to the effect that appellee simply walked down the steps of the car and attempted to alight therefrom as a person would come down any ■steps and step on the ground, and that while in such attempt he fell and was injured. All of this evidence coincides with and corroborates the statement of appellee, which was made to appellant’s claim agent the day after the injury, and which was introduced by appellant, as above shown; and, according to his statement, appellee went down the steps of the coach, and was in the act of alighting therefrom when his foot slipped and he fell to the ground.

Now, in the first place, it is our opinion that, from a careful consideration of ap-pellee’s testimony as a whole, he did not testify positively that there was a jerk or lurch of the train which caused him to fall, but that he supposed or thought that there was such a jerk or lurch of the train, and that he was thereby caused to fall, and would not have fallen otherwise. But, be that as it may, the written statement made by him to appellant’s claim agent on the day succeeding the accident shows clearly that he fell while in the attempt to alight from the train, and there was nothing in that statement indicating that he was caused to fall by reason of any jerk or lurch of the train; and this statement having been introduced by appellant without limitations, in so far as the record discloses, as to its purpose, we think the same should be considered and treated for all purposes; and when the same is so considered, together with all the other evidence in the case, it is manifest therefrom, or at least it is sufficient to warrant a finding, that appellee was not caused to fall from the train because of a sudden jerk or lurch, but that he fell while in the attempt of alighting from said train to the ground. We would not be understood as meaning, however, that if it had been shown without dispute that there was a sudden jerk or lurch in the train after the same had been started, and before appellee had had a reasonably sufficient time to alight therefrom, and that on account of such jerk or jar he was precipitated to the ground and injuredj that such jerk or jar should be considered, as a matter of law, the proximate cause of his injuries. We do not decide this point, because we deem it unnecessary to do so. The issue of proximate cause in cases of this character is usually one of fact, to be determined like any other issue of fact in the case, and sometimes it becomes difficult of determination. Ry. Co. v. Mussette, 86 Tex. 717, 26 S. W. 1075, 24 L. R. A. 642, and authorities there cited. In conclusion on this point, it is our opinion that the state of the evidence, considered as a whole, was such as to leave the question of proximate cause of appellee’s injuries a question of fact for the determination of the jury, and that the evidence was sufficient to authorize a finding of the jury to the effect that appellant’s failure to hold the train a reasonable length of time at the station of Cleveland, so as to enable appellee to alight therefrom after having assisted his wife and daughter thereon, was a proximate cause of his injuries on that occasion, and the first assignment of error is therefore overruled.

The second assignment of error complains of the action of the trial court in refusing to give a special instruction requested by appellant, which was as follows:

“In this case you are instructed that if you find and believe from the evidence that the em-ployés in charge of said train believed, or bad reasonable grounds to believe,- that the plaintiff, J. S. Lynch, intended to become a passenger on said train, then you are instructed that the plaintiff cannot recover, and your verdict should be for the defendant.”

As stated in the beginning, this case was submitted to the jury upon special issues, and the charge requested would have been applicable only in the event the case had been submitted on a general charge, and for that reason alone it cannot be held that the assignment points out reversible error. Petty v. San Antonio, 181 S. W. 224, and cases there, cited. The assignment is overruled.

The third assignment of error complains of the action of the trial court in refusing the following special instruction:

“In this case you are instructed that it is not the duty of the defendant railroad company to hold its trains at a station a reasonable length of time to allow persons to assist their relatives on said, train, unless said fact was known to said employSs, or, in the exercise of ordinary care, could have been known to said employes, at the time and before the party entered said train.”

This requested instruction was but a general one, and had no reference, or at least did not direct the jury’s attention, to any particular special issue submitted to them in the court’s charge, and for that reason it was properly refused; and, further, it was properly refused because it, in effect, told the jury that there was no duty resting upon appellant to hold its train a reasonably sufficient length of time to allow appellee to assist his wife and daughter on said train and to alight therefrom before the same was put in motion, unless appellant’s servants in charge of said train had actual knowledge of the fact that appellee had entered said train for the purpose only of assisting his Wife and daughter, and that he intended to alight therefrom. Appellee alleged, not only that appellant had actual knowledge that he had entered the train for the purpose only of assisting hjs wife and daughter, and that he intended to disembark therefrom, but also he alleged that it was the general custom at the time of the accident and prior thereto for male relatives to assist their female relatives to board appellant’s trains at the station of Cleveland, and that such custom was well known to appellant and acquiesced in by it, and that on the occasion in question appellant failed to hold said train in keeping with such custom, etc. If, as a matter of fact, the custom mentioned prevailed, then it was the duty of appellant on this occasion to observe it, and allow appellee reasonable time to alight from said train after having assisted his wife and daughter thereon. For both reasons the trial court was not in error in refusing the instruction, and the assignment is overruled.

By the fourth assignment of error complaint is made of the refusal of the trial court to give to the jury the following special instruction:

“In this case you are instructed that if you fii^d and believe from the evidence that it appeared, or reasonably appeared, to the brakeman, at the time J. S. Lynch entered said train, that he intended to become a passenger, or that the brakeman did not know, or in the exercise of ordinary care did not know, that it was the intention of plaintiff, J. S. Lynch, to get off of said train, then you are instructed that the defendant company was not required to hold its train at the station of Cleveland any longer, but had a right to give orders that said train proceed after it reasonably appeared to the brakeman that said passengers who intended to board said train had entered said train for passage.”

As stated with reference to the special instruction made the basis of the third assignment, this special instruction was one general in form, and did not direct the jury’s attention to any particular special issue submitted in the court’s charge, and for that reason we think it was properly refused; and, further, we think it was properly refused because there was no evidence upon whicji to base it. The brakeman himself who testified in this case testified that he did not even remember seeing ór noticing the defendant in error or his wife and daughter, and he nowhere claimed in his evidence that he thought or believed that appellee was entering the train as a passenger, and surely the charge could not have been properly based upon his testimony; and the testimony of appellee and his wife and daughter is almost conclusive, if not quite so, to the effect that the brakeman actually knew that appel-lee was entering the train for the purpose only of assisting his wife and daughter, and not for the purpose of becoming a passenger. Therefore there was no error in refusing the instruction, and the assignment is overruled.

By the fifth assignment complaint is made that the trial court was in error in submitting to the jury this special isáie:

“Were the servants of defendant, or any of them, guilty of ‘negligence,’ as that term has been defined, in failing to hold said train a reasonable length of time under the circumstances, so as to enable plaintiff to alight therefrom, if they did so?”

The only proposition under this assignment is:

“Whether the defendant held the train a reasonable length of time on the occasion in question was a sharply contested issue of fact; and the charge of the court above complained of assumes as a fact that the train was not held a reasonable length of time under the circumstances, and was therefore upon the weight of the evidence, and constitutes reversible error.”

We cannot agree with appellant that this charge was upon the weight of the evidence, because it is clear to our minds that it was so framed as to leave to the jury the question as to whether appellant held the train a reasonably sufficient time to allow appellee to alight therefrom. The assignment is overruled.

The sixth assignment complains of the action of the trial court in submitting this special issue to the jury:

“Was such negligence, if any you have found, the direct and proximate cause of plaintiff’s injuries, if any?”

The assignment is submitted as a proposition, and also appellant adopts as additional propositions thereunder the first, second, and third propositions under its first assignment of error, which are hereinbefore mentioned. As to the propositions under the first assignment of error, they are disposed of by what we have said in dealing with that assignment. This assignment of error is therefore over^, ruled.

By the seventh assignment of error complaint is made that the court erred in refusing the following special instruction:

“Was the defendant company ‘negligent,’ as that term has been defined by the court to you in its main charge, in failing to stop the train after it became aware of the fact that the plaintiff, J. S. Lynch, intended to leave said train after it was set in motion?”

The eighth assignment complains of the action of the court in refusing the following special instruction:

“Did the defendant company, after it waá apprised of the fact that the plaintiff, J. S. Lynch, would probably attempt to get off said train while in motion, exercise ‘ordinary care,’ as that term has been defined by the court in its main charge, to stop said train for the purpose of permitting the plaintiff, J. S. Lynch, to alight therefrom?”

The court did not err in refusing both of these instructions, for the plain reason that no such issue was presented by the pleadings in the case. The assignments are therefore overruled.

The ninth assignment of error complains of the refusal of the trial court to give to the jury the following specially requested charge:

“Was the plaintiff, J. S. Lynch, at and just before the time he was injured, guilty of contributory negligence? You will answer this question 'Yes’ or ‘No.’ And in this connection you are instructed that if you find and believe from a preponderance of the evidence that after the plaintiff, J. S. Lynch, entered the’ coach of defendant company, and after the train had started, that the plaintiff, J. S. Lynch, went to the rear end of the smoker, and attempted to alight therefrom while said train was in motion, and walked down said steps for the purpose of getting off of said train, knowing at the time the speed of said train, and you further find and believe from the evidence that when he reached the bottom step of the coach he immediately stepped off on the ground in the way and manner that you find from the evidence that he did step off, if you find that he did step off of said train, and you further find and believe that a man of ordinary prudence would not have attempted to get off of the train while it was in motion, and at the speed it was running, and in the way and manner that the plaintiff, J. S. Lynch, attempted to get off of said train, then you are instructed that the plaintiff would, in law, be guilty of contributory negligence, and you should answer this question, ‘Yes.’ ”

Appellant’s contention in this connection is that, having pleaded contributory negligence on the part of appellee, it had the right to prepare and demand the giving of a charge requiring the jury to find whether the evidence established the existence of the group of facts specified in the instruction, and whether such facts constituted contributory negligence upon the part of the plaintiff. As stated in the beginning, the plea of contributory negligence interposed by appellant was only a general one. It was as follows:

“And for further answer in this behalf defendant charges and avers that if plaintiff was injured in the manner described by him in his petition, which this defendant denies, then that such injuries proximately resulted to him from his own negligence and want of exercise by him of ordinary care, whereas he is not entitled to recover.”

' It will be observed that this plea does not attempt to specify any particular act or omission on appellee’s part which constituted contributory negligence, and under such general plea appellant was not entitled, as a matter of right, to have any particular facts upon which it relied as constituting contributory negligence grouped, and have them thus submitted to the jury. In support of its contention under this assignment, appellant cites the case of Ry. Co. v. McGlamory, 89 Tex. 638, 35 S. W. 1058, and Ry. Co. v. Rogers, 91 Tex. 58, 40 S. W. 956. We recognize the rule laid down in those cases, and believe it to be sound; but in each of them the plea of contributory negligence was specific, and it was held, for that reason, that the defendant was entitled to have the facts claimed to constitute contributory negligence grouped apd affirmatively and pointedly submitted to the jury. Also we would remark that each of those cases were submitted to the jury on a general charge. We are of opinion, however, that, whether a case be submitted on a general charge or on special issues, a defendant would be entitled to have any group of facts properly pleaded and supported by the evidence, which it might be claimed constituted a defense to the action, pointedly and affirmatively submitted to the jury for their finding. We can see no reason why this rule should not obtain where the case is submitted on special issues, if it be sound when invoked where a general charge is given. In this instance, however, as we have just stated, there was no special plea of contributory negligence, and it was not reversible error on the part of the trial judge to refuse the special charge requested. It will also be observed that the charge as requested takes from the consideration of the jury the question as to whether the negligence on the part of plaintiff, if there was such, proximately contributed to his injuries, and we are not sure that the trial court could have properly taken that question from the jury in this instance. Usually the question as to whether negligence on the part of a plaintiff in cases of this character became a proximate cause of his injury is one of fact for the jury, though we are aware that the facts may be such that such negligence, when established, should be held as a matter of law to be a proximate cause of the injuries. It is unnecessary to here determine whether the claimed negligence on the part of plaintiff, if it existed, was as a matter of law a proximate cause of his injuries. For the reason stated it cannot be held that the trial court committed reversible error in refusing this special instruction, and the assignment is overruled.

By the tenth assignment complaint is made of the refusal of the trial court to give this special instruction:

“Did the plaintiff, J. S. Lynch, fall from said train by reason of the way and manner that he attempted to get off said train while in motion?”

If the court had given this special instruction it would have been decisive of no issue in the case, however the same might have been answered -by the jury, and therefore there was no error in its refusal. The assignment is overruled.

The eleventh assignment of error complains of tlie action of the court in. overruling appellant’s objection to the answer of the witness Mrs. Baldwin to the ninth interrogatory propounded to her, which answer was as follows:

“It is my belief, from the remark made by my father after I had stated that I could not carry the grip in with the baby, ‘to go on in,’ that he would carry my grip in, that the porter knew that he intended to get off the train after assisting us on the train.”

The objection made to this answer was that it was irrelevant and immaterial and hearsay, and also that it was the mere opinion of the witness.

It was shown by the testimony of Mrs. Baldwin, as well as by appellee himself, that at the time she started to enter the train of appellant the brakeman was standing within 18 inches of herself and father, and that she (Mrs. Baldwin) stated, “I cannot get in with my grip and baby;” and thereupon appellee remarked, “Go on in and I will bring your grip”; that thereupon Mrs. Baldwin went in the train with her baby, and appellee followed her with her grip. Now, the only objection that could be made to this answer of Mrs. Baldwin at all would be on the ground that it was the opinion of the witness that the brakeman knew that her father did not intend to take passage on the train from the remark made to her in the brakeman’s presence, as above mentioned. While technically speaking, this answer may have been subject to this objection, at the same time, in our opinion, it is not of sufficient importance to cause a reversal of this case; and besides, whether the brakeman actually knew appel-lee’s purpose in going on the train would not be controlling in this case. If the custom pleaded by appellee prevailed, then it was the duty of appellant to hold its train at the station of Cleveland a reasonable length of time to permit appellee to assist his wife and daughter on the train, and to alight therefrom before the train should be started, whether the brakeman actually knew appel-lee’s purpose in going on the train or not; and the record in this case shows that the custom, as pleaded, was established by the undisputed evidence on the trial. The assignment is therefore overruled.

The twelfth assignment complains that the court committed error in permitting' Mrs. Baldwin to testify, substantially, that on the occasion in question the train did not stop a sufficient length of tirite to allow ap-pellee to assist his wife and daughter thereon and to alight therefrom, as it was his intention to do. The objection to this evidence was that it was hearsay, and the opinion and conclusion of the witness, and that it invaded the province of the jury.

The witness had theretofore testified fully as to the time the train remained at the station of Cleveland, and .had fully stated the facts upon which this conclusion on her part was based, and, besides, the very same fact was testified to by appellee himself without objection, and for these reasons we think that the assignment should not be sustained, and the same is overruled.

The thirteenth assignment complains of the action of the court in permitting Mrs. Baldwin to testify, substantially, that defendant’s brakeman heard her father tell her he would assist her on the train and carry her grip, and that he was going to get off the train after he had seated her; the objection being that such evidence was but the opinion and conclusion of the witness, and invaded the province of the jury.

We cannot agree with this contention. As before stated, Mrs. Baldwin had already testified that, when these remarks were made by her father to her, the brakeman was standing by the side of them, and not more than eighteen inches from them, and, in the nature of things, he must necessarily have heard these remarks, if they were made. It was shown by the brakeman that he was not deaf, because he testified to other things he heard on that occasion, when the opportunity afforded him was not so favorable. But we remark again that appellee’s right to a recovery did not depend solely upon actual knowledge on the part of appellant’s brakeman that he did not intend to become a passenger on said train, but, as before stated, the .evidence showed conclusively the custom alleged by appellee; and therefore it was the duty of appellant, in keeping with such custom, which fixed it with constructive notice of appellee’s intention in going on said train, to hold said train a reasonable length of time, under such circumstances, to allow appellee to assist his wife and daughter and to alight from said train. Ry. Co. v. Hutchingson, 62 Tex. Civ. App. 536, 132 S. W. 509, and authorities there cited.

It is true no issue touching the pleaded custom was submitted to the jury for its determination, and should not have been, because, as before stated, its existence was without dispute in the evidence; and it is only in instances where there is a dispute in the evidence touching some material issue' that the trial court is required to submit such issue for the determination of the jury. Now, the fact, if it be a fact, that appellant’s brakeman did not actually know that appellee intended to board the train merely for the purpose of assisting his wife and daughter, still, in view of the undisputed evidence in the ease as to the prevailing custom, the appellee was entitled to recover in this case, if appellant was guilty of negligence in not observing such custom, and such negligence proximately caused appellee’s injuries, and therefore the admission of the testimony complained of on the part of Mrs. Baldwin, if error, was, in our opinion, harmless, and should not cause a reversal of this case.

There is no complaint by appellant that the verdict of the jury was without support in the evidence in any particular, and what we have said disposes of all the assignments of error; and there being none which, in our opinion, should cause a reversal, they are all overruled, and the judgment of the trial court will be affirmed, and it is so ordered.

On Motion for Rehearing.

Appellant, in its motion for rehearing in this cause, has challenged the correctness of the opinion of this court with reference to practically all assignments of error passed upon; but, after a careful consideration of the motion for rehearing, we are still convinced that we were correct in overruling all of appellant’s assignments of error, with the exception of the ninth assignment. As to that assignment we have concluded, after careful consideration of the motion, that we were in error, and that the ninth assignment ought to have been sustained. That assignment was as follows:

“The court erred in failing and in refusing to submit special issue No. 6 requested by appellant, which was as follows:
“ ‘Was the plaintiff, J. S. Lynch, at and just before the time he was injured, guilty of contributory negligence? You will answer this question “Yes” or “No.”
“ ‘And in this connection you are instructed that if you find and believe from a preponderance of the evidence that after the plaintiff, J. S. Lynch, entered the coach of defendant company, and after the train had started, that the plaintiff, J. S. Lynch, went to the rear end of the smoker, and attempted to alight therefrom while said .train was in motion, and walked down said steps for the purpose of getting off of said train, knowing at the time the speed of said train, and you further find and believe from the evidence that when he reached the bottom step of the coach he immediately stepped off on the ground in the way and manner that you find from the evidence he did step off, if you find that he did step off of said train, and you further find and believe that a man of ordinary prudence would not have attempted to get off of the train while it was in motion, and at the speed it was running, and in the way and manner that the plaintiff, J. S. Lynch, attempted to get off of said train, then you are instructed that the plaintiff would in law be guilty of contributory negligence, and you should answer this question “Yes.” ’ ”

In the original opinion in this case we said, in substance, that appellant was not entitled to have this issue submitted to the jury, grouping the facts relative to the defense of contributory negligence, as done in the requested charge, for the reason that appellant had interposed only" a general plea of contributory negligence, not specifying any facts upon which it would rely as constituting such negligence, and that, therefore, it could not complain of the refusal of the court to give this special instruction grouping these specific facts, and thus have them affirmatively and pointedly submitted to the jury for a finding on that issue. On that point our former opinion was supported by the opinions of several of our Courts of Civil Appeals, among them being Railway Co. v. Parker, 20 Tex. Civ. App. 470, 49 S. W. 717, 50 S. W. 606, Railway Co. v. Hagood, 21 Tex. Civ. App. 442, 52 S. W. 574, and several other opinions by the Courts of Civil Appeals of this state following the Parker and Hagood Cases. On motion for rehearing, however, appellant for the first time haa called our attention to the case of Railway Company v. Mangham, 95 Tex. 413, 67 S. W. 765, the opinion in which was by the Supreme Court of this state, speaking through Judge Brown. After careful consideration of the decision in that case, which was in answer to a certified question from the Galveston Court of Civil Appeals, we have concluded that our holding in the former opinion, to the effect that appellant was not entitled to the requested instruction, for the reason that its plea of contributory negligence was only a general one, was error, and that the decision of the Supreme Court in that case is conclusive in favor of the contention of appellant on this point.

In the Mangham Case this point arose on the following statement and question made by the Galveston court to the Supreme Court:

“The defendant pleaded merely: (1) A general denial. (2) A general plea of contributory negligence. The plea fails to set forth any acts of contributory negligence on the part of the plaintiff, but simply pleads that ‘plaintiff’s injury was caused by lack of care and contributory negligence, under the circumstances of the case, in getting upon, or attempting to get upon, the engine of defendant, which defendant pleads in bar of plaintiff’s cause of action.’ (3) And the general plea that plaintiff assumed the risk of said defective step. * * *
“The appellant asked a special charge of contributory negligence, in which the facts were grouped and the law applied thereto. This charge was refused, and error is here assigned therefor.
“The court’s charge of contributory negligence was in general terms, but as full as defendant’s plea, and correct as far as it went.
“Question: Where the facts in evidence relied on by'the defendant to constitute contributory negligence are not specifically pleaded, and the court fails to group the facts, but charges in general terms on contributory negligence, is the defendant entitled to have given a special charge grouping the facts and applying the law thereto?”

To this statement and question the Supreme Court answered:

“If the facts grouped in the appellant’s charge were admissible under the plea of contributory negligence, and the charge was correct, it should be given. A defendant may plead contributory negligence in genei'al terms, and, if not excepted to, the plea will authorize the introduction of testimony to establish the fact of negligence. Telegraph Co. v. Jeanes, 88 Tex. 230 [31 S. W. 186]. The pleadings furnish the standard by which the court determines the admissibility of evidence, but it is the duty of the court to instruct ‘the jury as to the law arising on the facts.’ Rev. St. art. 1317.”

It is clear to us that the opinion of the Supreme Court in the Mangham Case is contrary to what we held, on this point in the former opinion, and we were therefore in error in overruling appellant’s ninth assignment of error, and now hold that the same must be sustained, and the motion for rehearing is granted, and the judgment of the trial court will be reversed and the cause remanded.

We also said in the former opinion, in substance, .that we were not sure but what the special charge was correctly refused because it took from the jury the issue of proximate cause. After further consideration on this point, however, we have concluded that if the plaintiff, Lynch, was guilty of negligence, which was left as a question of fact to be determined by the jury, then it follows as a matter of law that such negligence proximately contributed to his injury. It is the contention of appellee, however, that this requested instruction takes from the jury both the issue of negligence on the part of the plaintiff and the issue of proximate cause; but it will be readily seen, upon consideration of the requested charge, that it does not take from the consideration of the jury, as a question of fact, the issue of negligence on the part of the plaintiff, but it does take from the jury the question as to whether such negligence, if it existed, proximately contributed to the plaintiff’s injury, and properly so.

Nothing could be gained by a further discussion of the question at this • time, and, since we have been convinced that we were in error in not sustaining appellant’s ninth assignment of error, we now do so; and the judgment will be reversed, and the cause remanded, and it is so ordered.
      <&wkey;For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <&wkey;For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: TALBOT, J.

license: Public Domain

text:
    DALLAS TRUST & SAVINGS BANK v. PITCHFORD.
    (No. 8104.)
    (Court of Civil Appeals of Texas. Dallas.
    Jan. 25, 1919.)
    1. Guardian- and Ward <&wkey;30(3) — Expenditures for Ward — Authority op Guardian.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4131, a guardian cannot, in the absence of previous direction by the court, go beyond the clear income of the estate of the ward for his education and maintenance.
    2. Guardian and Ward <&wkey;30 (3) — Expenditures — Authority of Guardian.
    The provision of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4131, prohibiting a guardian from expending more than the clear income of the estate of his ward for education and maintenance without the previous authority of court, extends to a third person who furnishes necessaries to the ward, the guardian, who is primarily liable, having failed, for otherwise the purpose of the statute could be easily evaded.
    3. Guardian, and Ward <&wkey;30(3) — Insane Persons <&wkey;54^-LiMiTATioNS on Guardian —Statutes.
    As there is no statute giving remedy to third person for expenses incurred in maintaining a minor or non compos mentis under guardianship, and as it is the duty of the guardian to provide for such maintenance, and as he is expressly prohibited by statute from incurring expenses for that purpose in excess of the income of the ward’s estate without previous order of the probate court, a third person who supplied a ward with necessaries to an amount in excess of income of his estate has no cause of action against guardian for establishment of claim against ward’s estate on theory that such cause of action existed at common law.
    4. Guardian and Ward <&wkey;30(3) — Insane Persons &wkey;>54 — Duty of Guardian.
    It is the duty of a guardian to furnish his wards, whether infant or non compos mentis, with necessaries, and if a guardian fails or refuses to maintain a ward out of his estate, etc., he should be compelled to by the remedies provided, and a third person is not justified in discharging the guardian’s duty.
    Appeal from Dallas County Court; W. L. Thornton, Judge.
    Action by F. Pitchford. against the Dallas Trust & Savings Bank, guardian. From a judgment for plaintiff, defendant appeals.
    Affirmed in part and in part reversed and rendered.
    Cockrell, Gray, McBride & O’Donnell, of Dallas, for appellant.
    Meador, Kugle & Harrell, of Dallas, for appellee.
   TALBOT, J.

The appellee, Pitchford, instituted this suit in the county court of Dallas county at law, No. 2, against the appellant as guardian of the estates of Willie Pitchford, a minor, and Fred Pitchford, a non compos mentis, to establish, as valid claims against the respective estates of said wards, to be paid by said guardian, certain itemized accounts for supplies and necessaries furnished appellant’s said wards. Trial before the court without a jury resulted in a judgment for appellee.

The facts found by the court, which are undisputed, are as follows:

“On July 10, 1913, the probate court of Dallas county, Tex., appointed Stella Coleman guardian of the person and estate of Willie Pitchford, a minor. On said date Stella Coleman’ qualified as such guardian, and continued to act as such until January 21, 1915, at which time she was permitted to resign as guardian of the estate, but not of the person, qf said Willie Pitchford; and thereupon, upon said date, Dallas Trust & Savings Bank was appointed by said probate court as guardian of the estate of the said Willie Pitchford, minor, and on said date duly qualified as such, and has continued to be such guardian and is such now. Said Stella Coleman constantly since July 10, 1913, has been, and is yet, the guardian of the person of said Willie Pitchford. The said Willie Pitch-ford is still a minor, and said guardianships of her person and estate have been pending in said probate court continuously since September 8, 1913, and are still pending and undetermined. On September 8, 1913, said probate court appointed Stella Coleman as guardian of the person and estate of Fred Pitchford, non compos mentis, and that she continued to be such up to January 21, 1915, at which time she resigned, as guardian of both the person and estate of the said Fred Pitchford; and thereupon, upon said date, defendant, Dallas Trust & Savings Bank, was appointed by said probate court as guardian of the person and estate of said non compos mentis, and thereupon qualified as such and has continued to be such since said date. Constantly since September 8, 1913, said guard-ianships of the person and estate of Fred Pitch-ford, non compos mentis, have been pending in the probate court and are still pending and undetermined. The said Fred Pitchford is still a non compos mentis. The plaintiff herein, F. Pitchford, an uncle of the said Willie Pitchford and Fred Pitchford, after the guardian, Stella Coleman, had failed to furnish and supply said non compos mentis and minor, and was refusing further care, attention, maintenance, and support, in good faith expended on the dates indicated in his pleadings herein the sums shown in said petition for the support, benefit, and maintenance of the said Willie Pitchford and Fred Pitchford, and said expenditures were reasonable in amount, and were necessary for the support and maintenance of the said Willie Pitchford and Fred Pitchford. Said expenditure by the plaintiff in behalf of the said AVillie Pitchford amounts to $106.80, and said expenditure in behalf of said Fred Pitchford amounts to $511.37. No expenditures for maintenance or support have been made by Stella Coleman, guardian of the persons, nor by the defendant, Dallas Trust & Savings Bank, guardian of the estates, during the time the plaintiff, F. Pitchford, furnished necessaries as shown by his account, and supplied said non compos men-tis and said minor. Said respective expenditures and sums claimed by plaintiff exceeded the income of the respective estates of said Willie Pitchford and Fred Pitchford, and, in order that same may bo paid, it is necessary to use the corpus of their estates. No order was made or entered by said probate court authorizing said expenditures.”

The only assignment of error is that the—

“court erred in rendering judgment for plaintiff because the plaintiff’s claim, and the portion thereof as disallowed by this guardian, exceeded the clear income' of the estate of said ■wards and each of said estates, and there was no prior order of the probate court of Dallas county authorizing the expenditures which constitute the plaintiff’s claim; and continuously since prior to the time the items or any of same were incurred which constitute said claims, there has been pending in the probate court of Dallas county guardianships of the persons and estates of both of said wards, of which facts plaintiff, F. Pitchford, had notice and knowledge.”

We see no escape from the conclusion that the assignment should be sustained. It is statutory that the court may direct the guardian of a minor or non compos mentis to expend, for the education and maintenance of his ward, a specific sum, although such sum may exceed the income of the ward’s estate; hut without such direction of the court the guardian shall not be allowed, in any case, for the education and maintenance of the ward, more than the clear income of the estate. Vernon’s Sayles’ Civil Statutes, art. 4131. This statute has been construed a number of times by the appellate courts of this state,' and the rule therein prescribed uniformly held to be mandatory, and that, in the absence of previous direction by the court, the guardian cannot go beyond the clear income of the estate for the education and maintenance of the ward. Jones v. Parker, 67 Tex. 76, 3 S. W. 222; Blackwood v. Blackwood’s Estate, 92 Tex. 478, 49 S. W. 1045; De Cordova v. Rogers, 97 Tex. 60, 75 S. W. 16; Freedman v. Vallie, 75 S. W. 322; Wheeler v. Duke, 29 Tex. Civ. App. 20, 67 S. W. 909. The trial court found that the appellee expended the sums for which a recovery is sought on the dates indicated by his pleadings, and these dates show that all expenditures for which a charge is made in the accounts were made subsequent to the resignation of the first guardian, Stella Coleman, and during the guardianship of the appellant. This precludes a finding that the claims asserted, or any part of them, were for the support of the wards before the appellant was appointed guardian, and renders clearly applicable the provision of the statute referred to and the decisions cited. In no sense can either the claim for the support of the minor or the claim-for the support of the non compos mentis be regarded as a debt against their respective estates created and existing before the appointment of the guardian. This being true, the case of Logan v. Gay, 99 Tex. 603, 90 S. W. 861, 92 S. W. 255, in which it was held that a claim for the support of a minor prior to the appointment of a guardian was not governed by the statute under consideration, is not applicable, and cannot bo relied on for an affirmance of the judgment rendered in the present case. That case was distinguished from the cases we have cited above and others to the same effect, on the ground that the claim of the former constituted a debt against the minor existing before the appointment of the guardian, whereas the latter involved expenditures during guardianship.

The fact that a third person made the expenditures sued for in the present instance does not, in our opinion, materially .alter the case, as appellee insists it does. If so, the protection intended to be afforded by the statute, declaring that a guardian may not, without leave of the court, use the corpus of the ward’s estate for his maintenance, could easily be evaded or rendered nugatory. It would enable the guardian, by allowing such claim, to do indirectly that which the statute forbids him to do directly. Instead of incurring expenses himself for the support of the ward in excess of the income of the ward’s estate, such expenses could be incurred through a third person, with the assurance that, being so incurred, it would constitute a valid claim against the ward’s estate, although in excess of the income of said estate. A guardian is a person upon whom the law imposes the duty of looking after the pecuniary interest of, and providing for the education and maintenance of, his ward. This duty cannot he delegated to a third person during the guardianship, nor can it be assumed by a third person during the guardianship; or, if assumed during such time, such person clearly would be in no better position to have his claim approved and ordered paid by the probate court, at least where it exceeded the income of the ward’s estate, than the guardian would be who had incurred such claim without an order of the court. The court found that ap-pellee, in good faith, expended for the support of appellant’s wards the sums for which judgment was asked, and the record suggests no reason whatever to doubt the correctness of this finding; but since the expenditures exceed the income of the respective estates of the wards, and no order of court was obtained authorizing them, the appellant, as guardian, was not authorized to allow the claims made therefor,' and its rejection of them, in so far as they exceeded the respective incomes of the wards’ estates, was proper.

The appellee recognizes our' statutory rule that a guardian cannot expend for the maintenance of the ward an amount exceeding the “clear income” of the ward’s estate; but insists that the statute declaring such rule is not exclusive, and does not affect, the common-law right of a third party to recover against the guardian for money expended for the maintenance of the ward, and in support of this contention cites Luder’s Admr. v. State, 152 S. W. 220. The principle announced in the case cited, that “if a statute gives a remedy in the affirmative without a negation, express or implied, for a matter which was actionable at common law, the party may sue at common law as well as upon the statute,” has no application here. The state in tha!t case sued to recover for expenses incurred for maintaining a patient in the insane asylum, and we have a statute which provides that all public patients not indigent shall be kept and maintained at the expense of the state in the first instance; but in such cases the state shall be entitled to reimbursement in the mode pointed out by other articles of the statute, and this statute was held to be merely permissive and cumulative of the state’s common-law right of action and not exclusive. No similar statute giving a third party a remedy for expenses incurred by him for the maintenance of a minor or non compos mentis pending guardianship exists in this state, and since during such time it is the duty of the guardian to provide for the maintenance of the ward, and is expressly prohibited by statute from incurring expenses for that purpose in excess of the income of the ward’s estate without a previous order of the probate court, and impliedly prohibits him from allowing such a claim presented by a third person, such- person would have no cause of action against the guardian for the establishment of his claim against the ward’s estate to be paid out of the corpus of the estate, upon the theory that such cause of action existed at common law. It is not and cannot be denied that the guardian could not recover on such a claim, and we can see no good reason why a third party, who voluntarily incurs such expenses with knowledge of the pendency of the guardianship, should be allowed to recover.

It appears that no expenditures for the maintenance of appellant’s wards were made by it during the time appellee furnished them necessaries as shown by his account; but it does not appear that appellee or any one else made any effort, by appealing to appellant or the probate court, to have it provide for the support of the wards. If appellant, as guardian, -failed or refused to maintain the wards when it could have done so out of their estates, a remedy was at hand and should have been invoked. In Blackwood v. Blackwood’s Estate, supra, the guardian, an uncle of the wards, who had furnished them board in his family for eleven years, and had submitted annual accounts therefor, which the court approved, but which was not authorized by any order of record, was denied recovery; and the Supreme Court, recognizing that injustice might sometimes result from not allowing a guardian to charge the ward with expenditures for support in excess of the income of the ward’s estate, unless he could show an order entered upon the minutes authorizing same, said, in substance, that the rule would undoubtedly, upon the whole, tend to economy and fair dealing in the administration of such estates, and prevent guardians, at the close of a long administration, from attempting to exact in the final settlement unjust and unreasonable charges. The court iound in this case that the expenditures of appellee were reasonable in amount, and application of the rule may work a hardship upon appel-lee ; but it has been invoked, and we see no way to avoid adhering to it. As we understand, no complaint is made of the recovery for the $100.45 allowed by the guardian against the estate of Fred Pitchford, and the judgment of the county court will therefore be reformed and affirmed as to said amount, and reversed and rendered in favor of appellant as to all the balance sought to be recovered.

Affirmed in part; reversed and rendered in part.
      igssjFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: JENKINS, J.

text:
    BLASCHKE v. FERGUSON & DYESS.
    (No. 5990.)
    (Court of Civil Appeals of Texas. Austin.
    Feb. 5, 1919.)
    * 1. Brokers <&wkey;67(2)- — Commission from Both Pasties.
    That plaintiffs were also representing the party to whom the exchange of land was made would not bar commissions from defendant, who knew thereof.
    2. Trial &wkey;>255(13) — Requests — Duty to Make.
    In suit for. commission on exchange of lands, if defendant desired charge as to what was meant by listing land for sale, he should have requested the same.
    3. Teiae <&wkey;234(7) — Instructions—Burden •oe Proof.
    In suit for commission on exchange of land, charge held not subject to objection that it placed burden of proof “upon the defendant to establish that he did not list his land with plaintiffs.”
    Appeal from Beil County Court; M. B. Blair, Judge.
    Suit by Ferguson & Dyess against F. J. Blaschke. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Stanton Allen, of Bartlett, for appellant.
    A. D. Dyess, of Houston, for appellee.
   JENKINS, J.

Our former opinion herein having been written under a misapprehension as to the material fact of record, the same is withdrawn, and this opinion is substituted in lieu thereof.

The appellees, who are real estate brokers, brought suit to recover of appellant commission on exchange of land, which they alleged appellant had listed with them upon an implied contract to pay them the reasonable value for such service, which they alleged to be 2½ per cent, on the price received for the land in said exchange.

Appellant denied that he ever listed his land with appellees for any purpose, or that appellees represented him in said transaction, but that their sole employment was as the agent of H. G. Wagner, the party with whom the exchange was made, and from whom they received a commission for their services in such transaction.

The ease was submitted to a jury upon the following charge:

“Gentlemen of the jury, plaintiffs bring this suit for the recovery of 2½ per cent, of $13,000, which they allege is due them as the procuring cause for the gale of a farm belonging to the defendant, and which the defendant had listed with plaintiffs for sale, and further allege that the defendant knew plaintiffs were in the real estate business and accustomed to receive commissions on sales made by them, and that the customary commission paid to real estate dealers for the exchange of land is 2½ per cent., and that their services were reasonably worth $325.
“The defendant answers by a general demurrer and general denial, and specially denies that he ever listed land with plaintiffs for sale as alleged in plaintiffs’ petition, and denies that he ever agreed to pay plaintiffs any commission for making the exchange of said land to any one, and further alleges that he personally represented himself in making said real estate deal with H. G. Wagner, and that the plaintiffs were not entitled to any commission from him, and that he told plaintiffs to obtain $13,000 net to him for &aid property.
“I. Now you are instructed that if you believe from a preponderance of the evidence that defendant listed his land with the plaintiffs, and that it is the prevailing custom to pay real estate dealers 2½ per cent, on the exchange of land, and that said exchange was made, then you will find for the plaintiffs, and assess their damages at 2½ per cent, of the total value of the lands so traded or exchanged, if such is the case.
“II. Now if you believe from the evidence that the said F. J. Blaschke did not list his land with the plaintiffs, or that it is not the prevailing custom to pay 2½ per cent, of the total sale price of the property for exchange of the same, or that the defendant did tell the plaintiffs that they were to receive $13,000 net to him for his land, then and in either event you will find for the defendant, and so say by your verdict.
“III. You are instructed that the burden is upon the plaintiff to prove all matters and facts necessary to entitle him to recover by a preponderance of the evidence.
“You, the jury, are the exclusive judges of the facts proved, the credibility of the witnesses, and the weight to be given their testimony, but you are bound to receive the law from the court, which is herein given you, and be governed thereby.”

The jury returned a verdict for appellees for $325, and judgment was entered in accordance therewith.

Appellant’s first assignment of error is that the court failed to submit to the jury the issue as to whether the plaintiffs “were acting as the agent of H. G. Wagner in effecting the trade between Wagner and defendant, and that therefore plaintiffs were not entitled to receive commission from defendant.” We overrule this assignment, for the reason that it is not the law that a real estate broker is not entitled to recover commission from both parties to an exchange of land, where such fact is known to both of such parties. Appellant alleged that he knew that appellees were representing Wagner in the transaction, and for this reason he did not suppose they would charge him a commission.

Appellant’s objection to the charge that the court did not instruct the jury as to what is meant by listing land for sale is without merit. If appellant desired a charge on this subject, he should have requested same, which he did not do.

Appellant further objected to the charge, because “the burden of proof is placed upon the defendant to establish that he did not list his land with the plaintiffs.” An inspection of the charge which is set out herein will show that it is not subject to this criticism.

The evidence sustains the verdict of the jury.

Finding no error of record, the judgment of the trial court is affirmed.

Affirmed.
      d&wkey;]?or other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HUFF, C. J.

text:
    COMMERCIAL SECURITY CO. v. COLLINS et al.
    (No. 1462.)
    (Court of Civil Appeals of Texas. Amarillo.
    Jan. 29, 1919.)
    1. Depositions <&wkey;44^-ExAMiNATioN — Leading Interrogatories.
    In action on notes by indorsee, leading interrogatories to president of payee company held justified on account of witness’ unwillingness and his hostility to defendant makers.
    2. Depositions <&wkey;64(3) — Responsive Answer to Interrogatory.
    In action on 'notes by indorsee, answer of president of payee company to interrogatory hold responsive; therefore properly permitted to be read to jury.
    3. Biles and Notes <&wkey;525 — Funds op Payee in Hands of Indorsee — Sufficiency of Evidence.
    In action on notes by security company to which payee company had indorsed, evidence held sufficient to support jury’s finding that plaintiff had on deposit with it sufficient money or funds belonging to payee company to pay notes after they were dishonored.
    4. Bills and Notes <&wkey;353 — Funds of Payee in Hands of Indorsee — Duty to Apply on Indebtedness.
    If indorsee of notes on dishonor held on deposit funds of payee company, which had indorsed notes, more than sufficient to pay them, indorsee was under duty to apply funds on obligation created by indorsement of notes, as well as by payee’s written guaranty of payment, for which purpose percentage of face value of paper was retained by indorsee; effect of contracts being that payee, indorser, and guarantor agreed that, if makers did not pay on presentment, then it would.
    5. Bills and Notes <&wkey;353 — Funds Securing Indorsed Paper — Obligation of In-dorsee.
    Where consideration for notes failed, and indorsee of payee company had notice thereof while in possession of funds of payee company reserved to secure notes, it was under duty to satisfy its claim against makers from funds of .payee company, and makers are not liable to it.
    Appeal from District Court, Potter County; Hugh L. Umphres, Judge.
    Suit by the Commercial Security Company against J. W. Collins and another. From judgment for defendants, plaintiff appeals.
    Affirmed.
    Kimbrough, Underwood & Jackson, of Amarillo, for appellant.
    S. E. Fish, of Amarillo, for appellees.
   HUFF, C. J.

On April 13, 1917, the Commercial Security Company, appellant, sued J. W. Collins and C. R. Austin, as copartners, under the firm name of Collins-Austin Drug Company, on four negotiable notes, each in the sum of $200, dated February 14, 1916, payable to the order of Partin Manufacturing Company, due, respectively, 3, 4, 5, and 6 months after date, signed by Collins-Austin Drug Company, and indorsed to the security company by Partin Manufacturing Company before maturity and on the 21st day of February, 1916, and also sued for $7.70, protest fees, alleging that the notes were protested for nonpayment. For defendants’ answer we copy from their brief:

“That on or about the 14th day of February, 1916, defendants were approached by George A. Baker, representativo of Partin Manufacturing Company, stating that his company was engaged in inaugurating trade campaigns of merchants to increase trade, explaining that the campaigns had been signally successful elsewhere. A number of young people were to be interested in the sale of coupons, which could be exchanged at the store of defendants for merchandise. That the person selling the greatest number of coupons was to be given a prize of an automobile or $360 in gold. As a part of the contract Partin Manufacturing Company guaranteed that the sale for the succeeding 12 months would increase not less than $15,000, allowing $5,000 for natural increase. Partin Manufacturing Company as a part of the contract agreed to send its bond for $800 to a local bank as a guaranty, also a certificate of deposit for $400 that it would deliver the automobile or pay the $300 in gold; also agreed to pay defendants 5½ per cent., on every dollar the sales fell short of $15,000. That this contract was executed contemporaneously with and as a part of the notes sued on. The trade campaign was a failure, consideration for the notes failed, Partin Manufacturing Company failed to make the certificate of deposit, and defendants were compelled to pay successful contestant the sum of $300 in gold.
“Partin Manufacturing Company obtained the notes by fraud; subsequently made some sort of purported transfer to the Commercial Security Company of the notes, who had been handling its notes for years; knew the character of the business of the Partin Manufacturing Company and the history of these notes. That between the 14th day of May, 1910, the maturity of first note and its protest and the date of the trial, plaintiff had money and assets belonging to the Partin Manufacturing Company, subject to disposal of plaintiff, which could and in good conscience should have been applied to the payment of the notes, or held as security for the payment of the same, but plaintiff, instead of so applying or holding said sums and securities in its hands, failed to do so, but entered into some sort of a conspiracy with Partin Manufacturing Company to defraud defendants and compel them to pay said notes to plaintiff as a pretended innocent purchaser, but that said suit was really for the benefit of Partin Manufacturing Company, with intent to shut off defendants from a just and lawful defense.”

The trial court submitted the case on special issues, but instructed the jury generally as to the manner in which their verdict should be rendered, and among other things told the jury:

“If there are controverted issues that are not submitted for your determination, then the same has already been determined by the court.”
The first issue is: “Did plaintiff, after its notes were dishonored by defendants, have on hand sufficient amount of money or funds belonging to Partin Manufacturing Company to pay such notes or any part thereof?” The jury answered: “Yes.”
Second: “If you answer the next preceding issue in the affirmative, then what amount did plaintiff have on hand?” The jury answered: “$1,280.”

On these issues, upon motion of the appel-lees, the court rendered judgment for them. The notes sued on were as alleged, in the petition, for $200 each, payable to the order of Partin Manufacturing Company, and dated February 14, 1916, payable in 3, 4, 5, and 6 months, repectively, and are indorsed by the Partin Manufacturing Company by G. H. Partin, president, and H. D. Barry. When these notes fell due and as they fell due, they were presented to the appellees for payment, which was refused, and the notes protested. The notes show that they were indorsed when protested by the Commercial Security Company, and were sent by Chicago banks to banks in Amarillo, who received them from the Chicago banks, and notice of protest was given to all the in-dorsers on the notes, Partin Manufacturing Company, Barry, and the Commercial Security Company, as well as the banks sending the notes to the Amarillo banks. The evidence is sufficient to show that the notes were a part of the contract as set out in the appellees’ answer, and that the consideration therefor was the obligation of the Partin Manufacturing Company set out in the contract, and is also sufficient to show that the consideration for the notes had wholly failed. The facts are also sufficient to show that at the time appellant came into possession of these notes they had no notice of tile defects in the notes or the failure of consideration. The facts also show that the notes, when signed, were attached to the contract, of which they were a part, and the paper was so perforated that the notes could be detached, and the contract provided that the Manufacturing Company should have a right to detach them. The Manufacturing Company, on the 21st of February, 1916, sold these notes, together with others, the face amount of all the notes being $6,400, and that the agreed price was $0.9238½ on the dollar, or the total, $5,912.60, for the notes. At the time there was a certificate of sale, showing the notes, together with others and the amount of the indebtedness owing, and this certificate was attached to a contract of sale, reciting the consideration paid, by which Partin Manufacturing Company guaranteed the prompt payment in full to. appellant of the notes specified. The appellant referred the notes to its legal department for an opinion, and also investigated the financial rating of the parties making the notes, and on the 24th day of February, 1916, the manufacturing company executed a receipt for the money, which receipt is itemized, showing the payments as follows:

2/24/16. Cash . $1280.00
2/24/16. “ 1132.60
2/24/16. Check . 1000.00
2/24/16. “ 2500.00
Total . $5912.60

The facts show that the appellant had a general knowledge that the manufacturing company was in the advertising business, but the witnesses testify that they knew nothing of the methods of the business or the details. It is shown that appellant first commenced buying notes from the manufacturing company some time in July, 1915, and had purchased in all about $200,000 worth of notes or securities. After the protest of the notes the evidence shows that the manufacturing company sent a blank note for renewal of the first note protested. This the appellees declined to sign, complaining that the manufacturing company had not complied with its contract, and that the advertising campaign was a failure, and asking for a representative to assist in the campaign. The manufacturing company sent a Miss Jack, but it appears that she only tried to collect the notes or to secure a renewal of the notes, appellees declining to pay or to renew the notes, and subsequently wiring the manufacturing company that the campaign was a failure, and that they had not complied with the contract, and would not pay the notes. The manufacturing company sent three notes for renewal afterwards, which the appellees signed, but added to each note, “subject to the terms of the contract.” These notes were not accepted by the manufacturing company. The appellees did not learn until about the 16th of October, 1916, that the appellants owned or claimed the notes, at which time they wrote the company that they would not pay the notes; that the consideration had failed, and the manufacturing company had not complied with its contract, etc. The appellant answered this that they knew nothing about their contract; did not care anything about it, and that they wanted their money, etc. Thereafter suit was filed. The president of the manufacturing company, G. H. Partin, testified by deposition, among other things, that the Commercial Security Company usually required them to carry a balance of 20 per cent, of the notes that they sold them; that he did not know what amount, if any, of this 20 per cent, was retained when the notes were sold. That he did not remember whether the $1,280 cash left with the appellants represented the 20 per cent, or not, as they changed the plans several times. There is some testimony to the effect that there have been some suits involving notes purchased from the manufacturing company, prior to February 21, 1916, and some suits since that time on such notes, in which the appellants had seen the answers-of the contestant makers, but the evidence indicates generally that the notes were paid without suits or controversy.

Appellant’s first assignment is to the action of the court in not sustaining objections to direct interrogatory to G. H. Partin, and the answer thereto, and in permitting the same to be read to the jury. The interrogatory is as follows:

“Referring again to the $6,400 transaction, mentioned in the thirty-sixth interrogatory, I will ask you to state if it is not a fact that the $1,280 cash item mentioned in the receipt that you executed on that occasion to the Commercial Security Company is not the 20 per cent, that was retained by the Commercial Security Company purchasing the paper of Partin Manufacturing Company that you had in mind when testifying before the bankruptcy court? As a matter of fact, this $1,280 was not paid in cash on February 24, 1916.”

The answer is:

“The Commercial Security Company usually, requires us to carry a balance of about 20 per ' cent, of the notes we sold them. I am not familiar with the transaction had with them, because it has been so long ago. The Commercial Security Company usually required us to carry a certain amount, and I don’t know whether this $1,280 cash was left with them or not, as we changed plans several times in' selling papers.”

The objection urged is that the question was leading, and that that part of the answer that, “the Commercial Security Company usually required us to carry a balance of 20 per cent, of the notes we sold it” was objected to for the reason that the question asked the witness with reference to specified transaction, and the answer stated that they usually did, but did not remember this transaction. The interrogatory is leading in its character, but it is manifest from reading this entire record that the witness was an unwilling one, as well as hostile to appellees, and we think, under the circumstances shown in this record, that appellant had the right to ask a leading question. We are not inclined to believe that the answer of the witness is not responsive. The witness refused to answer certainly that the $1,280 was the 20 per cent, required, for the reason that he did not remember, but did state that it was the custom to retain the 20 per cent, on the face of the notes purchased by appellant. This witness, at the time he was testifying, excused himself for not testifying positively to this transaction, and giving a statement of the account with appellant and his company, on the grounds that he did not have the books of the company before him, but that they were with the referee in bankruptcy. This witness further testified in answer to another interrogatory, it appears from the record:

“I do not know what amount, if any, of the money that the Commercial Security Company had paid me since May 14, 1916, was from the 20 per cent, retained when the notes were sold.”

This last statement of the witness we think implies the fact that 20 per cent, was retained for the purpose of securing these notes at the time they were negotiated to appellant, and under this record, as it shows what difficulty appellees had in obtaining the testimony, we do not feel that we would be justified in striking out the interrogatory and answer thereto, and the assignment will be overruled.

The second assignment of error is taken to the action of the court in refusing to instruct a verdict for the appellant.

The third, fourth, fifth, and sixth assignments are based on the appellant’s objections to the submission of issues Nos. 1 and 2, submitted to the jury, on the ground that the court should have peremptorily instructed a verdict for appellant, and further because there was no evidence authorizing the court to render a judgment in favor of defendants on any verdict they might return, and that there was no evidence authorizing the jury to find that plaintiff had on deposit sufficient money or funds belonging to the manufacturing company to pay the notes, after the notes were dishonored. We have reached the conclusion that there is sufficient evidence supporting the finding of the jury. It is shown that in all the dealings between appellant and the manufacturing company with reference to the purchase of over $200,-000 worth of paper, it was the custom to retain 20 per cent, of the face of the paper to secure its payment. While Partin, the president of the company, did not testify that this per cent, was retained in this particular transaction, but sought to excuse himself from testifying definitely thereto, because he did not have access to the books, he nevertheless does not testify that it was a transaction out of the usual or customary method. In looking to the receipt, we find on the same day, February 24th, two cash items, one for $1,280, exactly 20 per cent, of the face of the notes sold, and another for $1,-132.60. Also on that date there was shown by the receipt two checks, one for $1,000 and another for $2,500. Both checks were made payable to the order of the manufacturing company and upon the same bank. One check was indorsed by the manufacturing company, and the other does not appear to have been indorsed by the manufacturing company, but has indorsed on the back of the check, “Place to the credit” of the manufacturing company. Mr. Smith, the secretary and treasurer, whose deposition was taken, also failed to give the manner in which the account was kept between the two companies, on the ground that he was then away from Chicago, and had no access to the books. The president of the company does not give the method of keeping the books of the parties, and all that appellees were able to get was that which plaintiff furnished by the receipt, and other instruments in writing, and the testimony of Mr. Partin. The only answer the witnesses for appellant, the secretary and treasurer and president, gave was that at the time and before purchasing the notes appellant had no notice of the failure of consideration for the notes, or of the consideration for the notes. Of course when they purchased the notes there had been no failure. The question made by the pleadings was, Did they have notice after they purchased? And did they have funds which were held by appellant to secure the notes and others? On this vital issue they remained silent. The pleadings charged them with having such funds, as well also as did the deposition of Partin. Prima facie we think the evidence shows that appellants retained $1,280, with which to secure the notes sued on, together with others, which amount is more than sufficient to pay the notes herein. If they held such sum, under the holdings in this state, it is'made appellant’s duty to apply such funds on the obligation created by Partin Manufacturing Company’s indorsement of the notes, as woil as by its written guaranty of payment and for which purpose the 20 per cent, was retained. The effect of those contracts was that the indorser and guarantor agreed, if the makers of the notes did not pay them when presented for payment, that it would, and, having the funds in its hands for that purpose, equity would require it to so apply the funds if so held. Appellant was not required to go into a foreign jurisdiction to sue the makers before holding the guarantor and the indorser or apply the funds which it held for that purpose. Knowledge of the facts in the transaction between the two companies all being in possession of appellant and the manufacturing company, appellant could not remain silent when appellees showed facts charging it with funds which ought to be applied on the debt for which there was no consideration. The evidence produced by appellees and the failure to disprove the same or to show that the funds were not then in hand, or had been dissipated before it had notice of the failure of consideration for the notes, we believe authorized the finding by the jury that it was in possession of $1,280 belonging to the Partin Manufacturing Company for the purpose of securing the notes. Van Winkle Gin Co. v. Citizens’ Bank 89 Tex. 147, 33 S. W. 862; State Bank v. J. Blakey & Co., 35 Tex. Civ. App. 87, 79 S. W. 331; Simmons v. Hodges (C. C. A.) 250 Fed. 424.

The trial court evidently found that the appellant had notice of the infirmities in the notes after their dishonor and while they were in possession of the funds reserved by appellant to secure these notes and if the jury’s findings are true the court was authorized to make the finding it did.

We believe the case should be affirmed.
      <g^>For other cases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes