text:
    HERMANN et al. v. BAILEY et al.
    (No. 6768.)
    (Court of Civil Appeals of Texas. Galveston.
    March 9, 1915.)
    1. Appeal and Error @=>564 — Statement of Eacts — Presentation for Settlement.
    Where a statement of facts containing 305 pages was presented to counsel for a party on a date which allowed for only two working days in which to examine same, it could not be considered by the reviewing court in so far as it related to such party, though it was approved by the trial judge, after such counsel refused to agree to it for want of sufficient time for examination.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2501-2506, 2555-2559; Dec. Dig. @=>564.]
    2. Appeal and Error @=>882 — Invited Error-Instructions.
    In a boundary suit, error could not be predicated on the giving of an instruction assuming that the north line of one survey and the south line of another were the same line, where this assumption was supported by the pleadings of the complaining parties, by an agreement of all parties, and by the evidence, and conformed to a special requested charge of the complaining parties.
    [Ed. Note.- — For other cases, see' Appeal and Error, Cent. Dig. §§ 3591-3610; Dec. Dig. @=> 882.]

      3. Trial ©==295 — Instructions.
    Assignments of error complaining of isolated paragraphs of the charge will be overruled where such paragraphs, when read with other paragraphs, or with the charge as a whole, are not erroneous.
    [Ed. Note. — Eor other cases, see Trial, Cent. Dig. §§ 703-717; Dec. Dig. <©=>295.]
    4. Trial <®=>194r-lNSTRUCTi0NS — Weight of Evidence.
    In a boundary suit, a requested instruction that special locative calls are of higher dignity than mere directory calls in the field notes, that it is only when calls for natural objects are locative calls that they are of a higher dignity than calls for artificial objects or course or distance, and that distances called for between corners to creeks or roads, unless specially designated in such manner as to make them locative calls, are not such and will not ordinarily have precedence over calls for course and distance, was properly refused as on the weight of the evidence.
    [Ed. Note. — Eor other cases, see Trial, Cent. Dig. §§ 413, 436. 439-441, 446-454, 456-466; Dec. Dig. <©=>194.]
    5. Boundaries <©=>41 — Boundary Suit — Verdict — Certainty.
    Where in a boundary suit it was agreed by all parties that, if the lands in controversy were south and west of certain lines, they were owned by plaintiffs, and if they were north and east they were owned by defendants, a verdict specifically locating such lines in their relation to the lands was not void for uncertainty.
    [Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 205-207; Dec. Dig. <©=>41.]
    6. Trial <g==>260 — Refusal of Instructions Covered.
    Requested instructions fully covered by the main charge were properly refused.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. <©=>260.]
    7. Trtal <©=>261 — Instructions — Request-Sufficiency.
    Where a requested omnibus special charge contains several paragraphs, part of which it would be proper to submit, and part not proper, the court need not select those paragraphs which it would be proper to submit.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 484, 660, 671, 673, 675; Dec. Dig. <©=> 261.]
    Error from District Court, Harris County ; Norman G. Kittrell, Judge.
    Actions by B. II. Bailey and Fredrick Stucy against G. H. Hermann and another. Judgment for plaintiffs, and defendants bring error.
    Affirmed.
    R. L. Whitehead, Fisher, Campbell & Amer-man, and J. W. Lockett, all of Houston, for plaintiffs in error. Lane, Wolters & Storey, of Houston, for defendant in error L. H. Bailey. Ross & Wood, of 'Houston, for defendant in error Fredrick Stucy.
   LANE, J.

Defendants in error, L. H. Bailey and Fredrick Stucy, each brought suit in the district court of Harris county against George H. Hermann and James McKee for separate tracts of land, both alleged to be part of the James Hamilton survey No. 34. By agreement of all parties the two causes were consolidated and tried as one suit, as the issues in both cases were the same. While the two original suits were brought in the form of trespass to try title to the lands involved in the suit, the only matter at issue was as to where Surveyor H. Trott, who originally surveyed and located both the James Hamilton and P. W. Rose surveys, located so much of the north line of the Hamilton and the south line of the Rose, and so much of the east line of the Hamilton and the west line of the Rose, as divides the two surveys, said lines being coincident or common lines of said two surveys, and therefore said suit is strictly a boundary suit. This, we think, was clearly agreed to by all parties to the suit. It is also agreed by all parties that, if the lands in dispute are parts of the Rose survey, the defendants in error have no title to the same, and that, if the same are parts of the Hamilton survey, the plaintiffs in error have no .title thereto.

Plaintiff in error G. H. Hermann in his answer alleged that “the north line of the said Hamilton survey is the same as the south line of the Rose league.”

Defendant in error Stucy made H. W. Peters, Lee Peters, Albert Peters, and Ernest Peters parties defendant by his amended petition, alleging therein that said last-named parties were claiming some kind of interest in the land sued for by him. H. W., Lee, Albert, and Ernest Peters by proper plea made Virginia Hooper and husband, Harvey W. Hooper, Regina Shepherd, Allen S. Shepherd, and Blount Shepherd parties to the suit.

As before stated, all parties conceded during the trial of the cause that the suit was a suit to establish the common or coincident division lines between the said Hamilton survey No. 34 and the P. W. Rose survey. There is no other issue by any of the parties to the suit presented to this court by this appeal, and therefore we shall confine this opinion to that issue alone. The case Was tried before a jury, and the question at issue as herein indicated was submitted by the court on special issues as follows:

“Where do you find from the evidence before you that the surveyor who made the original location of the P. W. Rose survey and the Hamilton survey No. 34 located the boundary line between said surveys upon the ground?”

The answers of the jury to said question were as follows:

“We, the jury, find that the surveyor who made the original location of the Hamilton survey No. 34 and the P. W. Rose survey located the boundary line between said surveys on the ground as follows, viz.: We locate the southwest corner of the Rose survey and the northwest corner of Hamilton survey 27 at an iron stake in fence corner in the Owens east boundary line at a point due south 500 varas from the Gillespie stake set for the northeast corner of the Owens survey and at a point 380 varas south of Brays Bayou. From this beginning corner we locate the northeast corner of Hamilton survey No. 34 at a point 3,800 varas due east, and from this northeast corner of Hamilton survey No. 34 so located we locate, the east line Hamilton survey No. 34 by extending a line due south from said last-mentioned corner, locating the most southern southwest corner of Rose survey at a point on this line 865 varas south of the northeast corner of the Hamilton survey as located above, and we locate the northwest corner of Hamilton No. 34 at a point 1,900 varas west of the northeast corner of the Hamilton survey No. 34 as above located.”

Whereupon the court rendered judgment in conformity to said verdict, fixing the said boundary lines as contended for by defendants in error, L. H. Bailey and Fredrick Stuey, and adjudging to them the title to the respective tracts of land sued for by them.

Defendant in error L. H. Bailey has filed his motion in this court asking that, in so far as the statement of facts filed in this court in this cause relates to the issue between him and plaintiffs in error, it be stricken out, and not considered by this court, because the same was not agreed to by counsel for said Bailey. It appears from said statement of facts that the same was not made up, prepared, and ordered filed by the trial court as required by law, in the event of the failure of the parties to agree upon the statement of facts. It is made to appear to this court that the statement of facts, which consist of 305 pages foolscap typewritten matter, was presented to counsel for Bailey at such late date as to allow them only two working days in which to examine the same; that said counsel for Bailey insist that, as they did not have sufficient time at their disposal to examine so large a statement of facts with that care which they should have exercised in duty to their client, for that reason they refused to agree to same, and returned the same to counsel for plaintiffs in error, who presented the same to the trial judge on the last day on which said statement of facts could be approved and filed by the court. Whereupon the trial judge made the following notation thereon: “Examined, approved, and ordered filed, this 12th day of May, 1913.”

It should have been apparent to counsel for plaintiffs in error that to make a careful examination of so large a statement of facts as the one in question would have required more time than was given to counsel for Mr. Bailey in this instance, and we think that counsel for plaintiffs in error have not exercised the degree of diligence which they should have exercised in presenting said statement of facts to opposing counsel that they might have time to examine th.e same before the expiration of the time allowed by law for filing same. We therefore sustain the motion of defendant in error Bailey, and refuse to consider said statement of facts in so far as it relates to him in this case. See M., K. & T. Ry. Co. v. Whitfield, 123 S. W. 710.

By assignments of error Nos, 1, 2, and 3 plaintiffs in error insist: First, that the court erred in charging the jury that the north line of the Hamilton survey No. 34 and the south line of the P. W. Rose survey is a coincident line, and is the same line, and that it was the duty of the jury to determine from the evidence where Trott-, the original surveyor, located that line; second, that the court erred in not submitting to the jury for its determination the question of fact as to whether or not there was a conflict between the Hamilton survey No. 34 and the P. W. Rose survey; third, that the court erred in charging the jury that the only question in the case is as to where the original surveyor originally located the line which is the north line of the Hamilton survey and the south line of the Rose survey, because there was a question of fact as to whether there was a conflict between the surveys and whether they overlapped each other, and as to which is the senior survey. As these assignments practically present but one question — that is, as to whether the court was warranted from the pleadings and agreements of the parties, and from the evidence, in charging the jury that the suit was one to establish the boundary line between the Hamilton and Rose surveys, and that the line between the two was coincident and the same line — we shall consider them together as one assignment.

The original field notes made by Trott, who located both of said surveys, which were introduced in evidence, shows that the work of surveying the Rose was begun in May, 1838, and completed in April, 1839, about one year after the work was begun, and that the work of surveying the Hamilton was completed in November, 1838. The original field notes made by Trott for the Rose survey calls for the north line of the Hamilton as a part of its south line, and the original field notes for the Hamilton calls for the south line of the Rose for its north line. From the foregoing we think the surveyor who located the two surveys in question intended to, and did, make the north line of the Hamilton and the south line of the Rose, where the Rose joins the Hamilton on the north, a common or coincident line.

In their answer plaintiffs in error pleaded that:

“The north line of the Hamilton survey is the same as the south line of the Rose league.”

It was also agreed by all parties to the suit, as shown by the statement of facts, that the only question involved in this suit is a matter of boundary, that is, as to the location of the north and the east lines of the Hamilton survey No. 34; that said lines are one the south line and the other the west line of the Rose survey.

In the second paragraph of plaintiffs’ requested charge No. 4 we find the following:

“The north line of Hamilton survey No. 34 is the same line as a part of the south line of the P. W. Rose survey, and a part of the east line of Hamilton survey No. 34 is the same line as one of the west lines of the P. W. Rose survey, and it will be your duty, guided by the instructions given to you, to ascertain where the original surveyor run these dividing lines when the lands were originally located and surveyed.”

We therefore conclude that the complaints made by assignments 1, 2, and 3 are untenable and without merit. The action of the court complained of is supported by the pleading of the parties complaining, by the agreement of all parties to the suit, and by the evidence, and was in conformity to the special requested charge of the complaining parties, and therefore they cannot be heard to complain of any act of the court invited by them. It has uniformly been held that a party cannot on appeal call in question the accuracy of a charge given by the judge when it embraces the same instruction contained in a charge requested by the party complaining, whether the requested charge be given or refused, unless it appear affirmatively from the record that the judge was not misled in the matter by the requested instruction. Nagle v. Simank, 64 Tex. Civ. App. 432, 116 S. W. 862; Railway Co. v. Sein, 89 Tex. 67, 33 S. W. 215, 558.

The fourth and fifth assignments of error complain of isolated paragraphs of the court’s charge, which, when read with other paragraphs of the charge, or with the charge as a whole, are not subject to just criticism, and therefore such assignments are overruled.

The sixth assignment of error insists that the court erred in refusing to give plaintiffs in error’s special charge No. 1, as follows:

“You are further instructed that special locative calls are of higher dignity or grade and ordinarily entitled to more weight than mere directory or incidental passing calls contained in the field notes. It is only when calls for natural objects are locative calls that they are of higher grade or greater dignity than calls for artificial objects or course or distance. If calls for natural objects are not called for as fixing the corner or boundary of the land being described, but merely noted in the field notes as incidental calls in passing, they are only directory or passing calls, and in such instances will not ordinarily control calls for course and distance. Distances called for between corners to creeks o-r roads, unless specially designated in such manner as to make them locative calls, are not such, and will not ordinarily have precedence over calls for course and distance.”

In view of the peculiar state of facts in this case, we think the requested charge was upon the weight of the evidence, and that the court properly refused the same.

We think the seventh, eighth, and ninth assignments of error set out in the brief of plaintiffs in error, which insist that the verdict of the jury is void for uncertainty, are hypercritical and without merit. The verdict of the jury locates and fixes the dividing boundary lines of the Hamilton and Rose surveys under proper charges of the court, and it was agreed by all parties to the suit that, if the lands sued for were to the south and west of said lines, they were owned by defendants in error, and, if they were north and east of-said lines, they were owned by plaintiffs in error.

Assignments 10, 11, and 12 in the brief of plaintiffs in error complain of the refusal of the court to give certain of their special charges. The court’s main charge sufficiently, substantially, and correctly covered the matters embraced in such special requested charges, and, besides, two of these requested charges are paragraphs Nos. & and 8 of special charge No. 4, asked by plaintiffs in error, which contains 11 separate paragraphs, many of which were fully covered by the court’s main charge, and which should not have been repeated in special charges. The court is not required to select from such omnibus special charge as that requested by plaintiffs in error certain paragraphs which might have been properly submitted to the jury, if-submitted in separate special charge.

We think the evidence amply supports the verdict of the jury and the judgment of the trial court.

There appearing no reversible error from the record in this case, the judgment of the court below is in all things affirmed.

Affirmed.
      <e=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      «gmjFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: BUCK, J.

license: Public Domain

text:
    WOODARD v. ESKRIDGE et al.
    (No. 8089.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Jan. 30, 1915.
    Rehearing Denied Feb. 27, 1915.)
    1. Appeal and Error <§=>739— Assignments oe Error — Multifariousness.
    An assignment that the court erred in refusing a special charge for a number of reasons raising various questions was multifarious, and could not be considered.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 3034-3036; Dec. Dig. <§=> 739.]
    2. Justices of the Peace <©=»128 — Judgment —Restraining Enforcement — Fraud.
    Where upon the continuance of a'case pending in justice court the counsel for certain defendants declined to prosecute the defense further, at the same time, however, signifying his intention to appeal, if, as claimed, the justice and plaintiffs’ counsel promised to notify him when judgment was rendered so that he could perfect his appeal, the fact that he also asked G., another attorney, to look after the matter for him and notify him when judgment was rendered did not relieve the justice or plaintiffs’ counsel of their duty to notify him, nor prevent their failure to do so from constituting fraud which would support a suit to enjoin the collection of the judgment, especially where G. was told by plaintiffs’ counsel, and so notified defendants’ counsel; that the case had been dismissed as to such defendants.
    [Ed. Note. — Eor other cases, see Justices of the Peace, Cent. Dig. §§ 402-407; Dec. Dig. 128.]
    3. Appeal and Error ®=»1033 — Errors Favorable to Appellant.
    In a suit to enjoin the collection of a judgment rendered by a justice of the peace on the ground that plaintiff was prevented from appealing therefrom by the failure of the justice of the peace and the counsel for the adverse party to notify his counsel when judgment was rendered as they had promised to do, in which defendants claimed and offered evidence to show that plaintiff’s counsel did not rely on the justice or the opposing counsel furnishing such information, but relied on G., another attorney, and that G. was present when the judgment was rendered, an instruction to find for defendants if plaintiff’s attorney asked G. to look after the case and to let him know when judgment was rendered, and if G. so acted for plaintiff’s attorney and the attorney relied on G. to let him know when the judgment was rendered, and G. was present when the ease was tried, was in favor of defendants and their objection thereto could not be sustained.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4052-4062; Dee. Dig. <©=> 1033.]
    4. Trial <©=*253 — Judgment — Restraining Collection — Instructions Ignoring Issues.
    In such action, an instruction to find for defendants if G. knew when the judgment was rendered, or by the exercise of ordinary care could have discovered that a judgment had been rendered in time to notify plaintiff’s counsel in sufficient time to appeal, was properly refused, as it failed to submit the issue as to the reliance of plaintiff’s counsel on the promise of the justice and the opposing counsel.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 613-623; Dec. Dig. <®^253.]
    5. Trial ®=>284 — Instructions—Objections.
    Where, in such action, the court instructed the jury to find for plaintiff if his attorney was misled by the justice and the opposing counsel into believing that he would be notified of the rendition .of the judgment, and defendant objected to such instruction only on the ground that there was not sufficient evidence to justify it, an instruction, authorizing a verdict for defendant if plaintiff owed the debt for which he was sued in justice court, was properly refused, as defendant by failing to object approved the charge given so far as it assumed that plaintiff had shown that he did not owe such debt.
    [Ed. Note. — For other eases, see Trial, Cent. Dig. §§ 683-685; Dec. Dig. <©=⅛84.]
    Appeal from Johnson County Court; J. B. Haynes, Judge.
    Action by B. E. Eskridge and another against I. H. Woodard and others. Judgment for plaintiffs, and defendant Woodard appeals.
    Affirmed.
    Walker & Baker, of Cleburne, for appellant. T. P. Whipple and J. T. Spencer, both of Waxahachie, for appellees.
   BUCK, J.

This suit was instituted in the county court of Johnson county to enjoin the collection of a judgment rendered by the justice court, precinct No. 5, Johnson county, Tex. The latter judgment was rendered June 13, 1012, the suit having been filed November 14, 1911, and styled I. H. Woodard v. J. E. Williams et al., the other defendants being A. W. Dowd, T. I. Steadman, L. E. and A. B. Eskridge. Woodard had rented a farm in Ellis county on a “third and fourth contract” from P. K. Thompson and had sublet it to Williams for the “third and fourth,” and an additional consideration of a note executed by Williams to Woodard in the sum of $165. It was alleged by Woodard in the justice court that the relation of landlord and tenant existed between him and Williams; that the note for $165 was for rent of the premises so sublet, and that Williams owed him a further sum of $60 claimed to be for advances, as evidenced by two notes given by Williams to Thompson for insurance policies, which notes had been purchased by Woodard in accordance with his contract with Thompson to indemnify the latter for any indebtedness due him by Woodard’s tenants. It was further alleged that Dowd and Steadman and the two Esk-ridges had converted the crop raised on said premises in payment of debts claimed to be due them by Williams. Upon the trial, the cause was dismissed as to Dowd and Stead-man, and judgment taken against Williams and the two Eskridges on the notes for $208.88, a credit having been allowed, before judgment in the justice court, for $50 paid by Williams. In the justice court, on December 14, 1911, the cause was set for trial, and the defendants Dowd and Steadman and the two Eskridges filed their plea of privilege to be sued in the county of their residence, Ellis county, which plea was overruled. The defendants then excepted to the jurisdiction of the court, and asked that the cause be transferred to justice precinct No. 5, Ellis county, where it was alleged all the defendants resided and where the rented premises were located. A distress warrant had theretofore been issued out of the justice court on the affidavit of Woodard and sent to the constable of precinct No. 5, Ellis county, for service, but no officer’s return was made thereon, merely a statement, in a letter to the constable of the Grandview precinct No. 5, that Williams had gathered and sold his crops, and therefore nulla bona. Upon the overruling of defendants’ plea of privilege and the motion to transfer, the court continued said cause to give plaintiff’s counsel time to investigate as to whether he would seek to hold Dowd and Steadman. Defendants’ counsel declined to prosecute the defense further in the Grandview justice court, and suggested that the plaintiff might take any judgment he pleased there, at the same time signifying his intention to appeal from such judgment so to be rendered. As to just what did occur between counsel for plaintiff and the justice of the peace on the one hand, and counsel for the defendants on the other, there seems to be considerable conflict. Appel-lee contends that the justice of the peace, S. N. Ilonea, and appellant’s counsel, Tom S. Wade, promised and agreed to notify appel-lees’ counsel, Tom Whipple, who resided at Waxahachie, when the judgment was rendered and for what amount, so that he could perfect the appeal to the county court, and that he relied thereon. Appellant denies any such promise or agreement, and further states that, even if they, or either of them, did so promise appellees’ counsel did not rely thereon, nor was he misled thereby, for the reason that before leaving Grandview that day he made arrangements with H. O. Gardner, an attorney at Grandview, to keep track of the suit and to notify him (Whipple) when the judgment was rendered so that he might perfect his appeal. Judgment was rendered some six months later, to wit, June 13, 1912, and execution was issued thereon to Johnson county September 9, 1912, and returned, nul-la bona, on the 10th. On the 23d, an alias execution was issued to Ellis county. On Qetober 12, 1912, the injunction proceeding, from the judgment in which this appeal is taken, was filed by the two Eskridges in the county court of Johnson county, and, upon a trial before a jury, judgment was rendered for appellees, canceling said justice court judgment as to the Eskridges, and perpetually enjoining Woodard, Justice Honea, and the sheriff of Ellis county from collecting the same. Woodard alone appeals.

Such additional pleadings and proceedings will be given in the course of this opinion as will be necessary to make clear the issues involved and raised by the assignments.

In his first assignment, appellant complains that “the court erred in refusing to charge the jury to find for the defendants as requested by them in special charge No. 1, because,” and then proceeds to raise under six subheads practically every issue of evidence involved in the case, and also the question of nonjoinder of parties. This assignment is subject to the objection of multifariousness urged by appellee, and cannot be considered by us. Morgan v. Lomas, 159 S. W. 869; Fidelity & Deposit Co. v. Bankers’ Trust Co., 161 S. W. 45; Rushing et al. v. Bank, 162 S. W. 460.

Appellant’s second assignment is as follows:

“The verdict of the jury is contrary to and is not supported by the evidence. The uncontra-dicted evidence shows that T. P. Whipple, with the knowledge and consent of L. E. and A. B. Eskridge, agreed, in open court at Grandview, that judgment might be rendered in favor of the plaintiff in said case, and against L. E. and A. B. Eskridge, and that the said Whipple came to the conclusion, before he left Grandview on that day, that neither Honea no? Wade would let him know when judgment was rendered in the case, and that he did not rely on either of them letting Mm know when judgment was rendered, but that he did rely on fi. O. Gardner, and the failure of Gardner to ascertain or to let Whipple know was in no wise attributable to the acts of these defendants, and judgment was rendered in open court and duly entered on the docket, and the failure of said Gardner to ascertain that judgment had been rendered, and to notify Whipple, constituted such negligence as precluded the plaintiffs in this case from relief.”

Appellees object to the consideration of this assignment, because it fails to specify and point out the error relied on and is argumentative. We are inclined to the opinion that said objection is tenable; but, in the abundance of liberality, we have considered the specification. The fact that counsel for appellant, fearful, as he states, that the justice of the peace and the counsel for plaintiff in the justice court would not comply with their alleged agreement and promise to notify him of the rendition of the judgment and the amount thereof, requested H. O. Gardner to look after the matter for him would amount only to an additional precaution, and would not relieve said court and counsel of their duty to so notify him; and their failure to do so would, in the event of injury resulting from a reliance thereon, constitute actionable fraud. Since Gardner testified that counsel for plaintiff notified, him in July or August that he had dismissed the case as to Whipple’s clients, and he relied thereon, and so notified Whipple, we cannot say as a matter of law that Whipple had not the right to rely on said alleged promise, reinforced, as claimed, by the further statement alleged to have been made by plaintiff’s counsel to Gardner, as to the dismissal. Therefore this assignment is overruled.

The third assignment, “adopted as a proposition,” complains of the first paragraph of the court’s charge, which is as follows:

“You are instructed that if you believe from the evidence by a preponderance thereof that Squire Honea or T. S. Wade .agreed to let Tom Whipple, attorney for A. B. and L. E. Esk-ridge, know when judgment was rendered in the case pending in the justice court at Grandview, and that said Whipple relied upon Wade and Honea to notify him, and that Honea and Wade fraudulently failed to notify Whipple of the rendition of said judgment, then you are instructed to find in favor of the plaintiffs, unless you find for the defendants under subsequent paragraphs of the charge.” “Because,” as alleged by appellant, “it appears from the uncontradicted evidence that Whipple did not rely upon Wade or Honea notifying him when judgment was rendered in the case at Grandview, but concluded before he left Grandview on the day the alleged promise was made that neither Honea nor Wade would so notify him.”

We believe the charge is not subject to the objection made, for reasons given in the discussion of the second assignment, especially in view of the second paragraph of the charge, which presents the contrary phase of the case as supported by appellant’s pleadings and evidence, which paragraph reads as follows:

“On the other hand, you are charged that if you believe from the evidence that Honea and Wade did not agree to notify Whipple of the rendition of the judgment, or if Whipple did not rely on Honea and Wade to let him know of the rendition of the judgment, then, in either event, you will find for the defendants.”

The third assignment is overruled.

fourth assignment complains of the third paragraph of the court’s charge, which is as follows:

“You are further instructed that if you believe from the evidence that Tom Whipple, attorney for L. E. and A. B. Eskridge, with the knowledge, acquiescence, or consent of his clients, L. E. and A. B. Eskridge, or either of them, asked H. G. Gardner to look after the case pending in the justice court at Grandview, and to let him know when judgment was rendered therein, and that Gardner so acted for said Whipple, and the latter relied on Gardner to let him know when judgment was rendered in said case, and that Gardner was present when said case was tried, then you will find for the defendants.”

Because, as alleged by appellant: (1) It appears from the uncontradicted testimony that Whipple, his clients assenting, did ask Gardner to look after the case and let him know when judgment was rendered, that Gardner did so act, and that Whipple relied on his so doing, and that the charge was erroneous because it submitted facts for the determination of the jury, about which there was no controversy; and (2) such charge required the jury to find that Gardner was present when the judgment was rendered in the justice court before they could find for the defendants. This charge was on appellant’s contention, and raised by his pleadings and evidence., Both Honea and Wade, witnesses for appellant, testified that Gardner was present at the rendition of the judgment, and upon these witnesses the appellant relied to establish the fact of said Gardner’s presence, and therefore the charge is manifestly in his favor, and the objection should be overruled on this ground, if upon no other. See Abilene L. & W. Co. v. Robinson, 146 S. W. 1052, and cases there cited.

In his fifth assignment, appellant- complains of the failure of the court to give his specially requested charge No. 3. This requested charge was almost verbatim the charge complained of in the fourth assignment, except it further instructed the jury to find for defendants “if Gardner knew when the judgment was rendered, or by the exercise of ordinary care could have discovered that a judgment had been rendered in time to have notified Tom Whipple in sufficient time to prosecute an appeal,” etc. We do not think that the charge so requested presents the law, because it fails to submit the question of Whipple’s reliance vel non upon the alleged promise by Wade and Ilonea. For reasons given heretofore, we believe that was properly an issue. Although Gardner in the exercise of ordinary care could have known of the rendition of said judgment, and although Whipple relied on him, in part, to so inform him thereof, yet if Whipple also relied on the promise alleged to have been made by Wade and Honea, in part, the partial reliance on Gardner would not have precluded the reliance on said alleged agreement. In reason and justice he might be permitted to have “two strings to his bow.” Furthermore, to have submitted this requested charge would have given an undue emphasis to that part of the instruction already given in the main charge, complained of in the fourth assignment. The fifth assignment is overruled.

The sixth assignment is likewise overruled, because we believe that the matter set forth in said tendered charge was sufficiently covered in the charge of the court as given.

In his seventh assignment, error is alleged for the failure of the trial court to submit special charge No. 6, which, in substance, charged the jury that although they might find for plaintiffs as to the issue of fraud, yet they should find for the defendants if the jury believed that L. E. Eskridge had told Woodard, in the fall of 1911, that the crop of Williams was sufficient to pay his mortgage and Woodard’s debt, and for Woodard to go back home, and he (Eskridge) would attend to the collection of the proceeds of the crop, and pay Woodard’s debt out of the proceeds, and if the jury further found that there were sufficient proceeds to pay Eskridge’s debt covered by the mortgage and Woodard’s debt against Williams. Appel-lees contend that such a promise, if made, which they deny, would be unenforceable, as being in contravention of the statute of frauds, being a promise to answer for the debt, default, or miscarriage of another, and not in writing. But without passing upon this question, we do believe said charge as submitted was correctly refused. The judgment in the justice court, and the citation issued therefrom, fails to show that plaintiff therein was relying for his cause of action upon any such alleged promise on the part of Eskridge, or claimed that Eskridge had acted as his agent in the collection of the amount from Williams, and as such had converted the same. So far as said judgment shows, the judgment was based upon the three notes aforesaid, and the citation merely .alleges a conversion by the two Eskridges, Dowd, and Steadman of the cotton raised on said land and the money received from the sale of said cotton. Therefore, in the opinion of the writer, said tendered charge wás not based upon any issues involved in the case, and was correctly refused. But it is held by the majority of the court that the refusal to give said requested charge was not error, for the reason that in the first paragraph of the court’s charge, plaintiff was allowed to recover upon the single proposition that his attorney, Whipple, had been misled by Wade and Honea to believe that he would be notified of the rendition of any judgment against Eskridge. If plaintiff in this case had the burden of showing that he did not owe the debt alleged in the justice court, then the charge mentioned above peremptorily assumed that that burden had been discharged. The only objection made by appellant in the trial court to that instruction was that the affirmative of the issue there presented had not been sustained by sufficient evidence, thus approving the charge so far as it assumed that plaintiff had shown that he did not owe the debt asserted in the justice court. With this approval of the instruction in that respect, appellant is in no position to complain of the refusal of the instruction now under consideration. Cleburne St. Ry. Oo. y. Barnes, 168 S. W. 991. The seventh assignment is overruled.

Without further extending this opinion, which is perhaps too long already, it is sufficient to say that we do not find any error as claimed in appellant’s eighth, ninth, and tenth assignments, and they are consequently overruled.

Finding no reversible error, the judgment of the trial court is affirmed.
      ©saFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DUNKLIN J.

text:
    KANSAS CITY, M. & O. RY. CO. v. CAVE et al.
    (No. 8087.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Feb. 13, 1915.)
    1. Pleading <§==3-129 — Admissions—Failure to Deny.
    Where the plaintiff alleged, in an action against receivers of a railroad, that such receivers had been duly appointed and as such were operating the road, and the allegation was not specifically denied by the receivers, who answered and defended at the trial, their character as such was admitted, so that no proof of their appointment was required.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 270-275; Dec. Dig. <§=>129.]
    2. Carriers <§=>228 — Carriage oe Dive Stock —Presumption erom Injury.
    Evidence that cattle were in good condition, when shipped, and 11 of them were dead at the end of the transit, piled up_ on each other, and many of the remainder bruised and skinned, established a prima facie case for plaintiff, suing for negligent injury by defendant railroad, so that the burden was upon defendant to show that the injuries sustained were due to the inherent vices of the animals.
    [Ed. Note. — For -other cases, see Carriers, Cent. Dig. §§ 957-960; Dec. Dig. <§=>228.]
    3. Carriers <§=>228 — Carriage oe Live Stock —Damages—Evidence.
    Where proof was made that cattle were shipped in good condition, and reached the end of the transit with some dead and the rest injured, the admission of testimony as to their market value at destination was proper, although there was no evidence to show what their condition at destination would have been, had they been transported with ordinary care, since the proof of injury z-aised a pzima facie presumption of the carrier’s liability in damages.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 957-960; Dec. Dig. <§=>228.]
    4. Trial <§=>260 — Instructions—Repetition.
    It is not ei'ror to refuse a requested charge, substantially covered by another charge given.
    [Ed. Note.- — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. <§=>260.]
    5. Appeal and Error <§=>1060 — Harmless Error — Argument oe Counsel — Bias oe Witnesses.
    In an action against a railroad for injury to cattle in transit, where counsel in argument said, “You know that witnesses % ⅜ * in the employ of corporations like railroad companies testify as they are told to do in order to hold their jobs,” such language was reversible error, where the court refused to exclude it upon objection, in view of the testimony of defendant’s trainmen that the cattle were overcrowded when loaded, and that some of them were down in the cars when delivered to the defendant by a connecting road; the entire transit being less than 70 miles, taking only from 4 in the ’afternoon until 6 the next morning.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4135; Dec. Dig. <§=>1060.]
    6. Exceptions, Bill of <§=>26 — Construction — Aider by Statement — Argument oe Counsel.
    Where a bill of exceptions to an argument of counsel for plaintiff contained no statement by the judge that there was evidence to warrant the argument, if a statement complaining of the ai’gument asserted the absence of proof to warrant it, such statement being uncontradicted by the adverse party, the objection to the argument was proper, since the statement of facts may aid a bill of exceptions, in the absence of conflicts between them.
    [Ed. Note. — For other cases, see Exceptions, Bill of, Cent. Dig. § 33; Dec. Dig. <§=>26.]
    7. Appeal and Error <§=>323 — Briees—Fil-ing.
    Where there were several codefendants in an action for injury to live stock in transit, and one defendant appealed separately, failing to perfect such appeal through failure to comply with the rules of court regulating time for filing briefs, such defaulting defendant cannot have judgment as to it reversed on a later appeal by one of its codefendants.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1796, 1798-1805; Dec. Dig. ■§=>323.]
    8. Appeal and Error <§=>1173 — Joinder — Reversal oe Judgments.
    Where severable causes of action are joined and tried together against two or more defendants, . the reversal of judgment as to one does not require reversal as to the others.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4562-4572, 4656; Dec. Dig. <§=>1173.]
    Appeal from Jones County Court; Joe C. Randel, Judge.
    Action by D. C. Cave and another against the Kansas City, Mexico & Orient Railway Company. Judgment for plaintiffs, and defendant appeals.
    Reversed and remanded.
    I-I. G. McConnell, of Haskell (H. S. Garrett, of San Angelo, of counsel), for appellant. Brooks & Brooks, of Anson,. Ocie Speer, of Ft. Worth, Yonge & Yonge, of Snyder, and Earl Conner, of Eastland, for appellees.
   DUNKLIN J.

D. C. Cave shipped 83 head of cattle from the town of Snyder to the town of Hamlin. They were transported from Snyder to Roscoe over the Roscoe, Snyder & Pacific Railway, thence over the Texas & Pacific Railway to Sweetwater, and from Sweetwater to the town of Hamlin, their destination, over the Kansas City, Mexico & Orient Railway. Cave instituted this suit to recover damages for alleged injuries to the cattle sustained during such shipment; each and all of said railway companies being made defendants, with the exception that Hovey & Mertz were sued as receivers of the Kansas City, Mexico & Orient Railway Company. The claim for damages was predicated upon the usual allegations of rough handling and delays by each and all of the defendants. The case was tried before a jury, who returned a verdict in favor of the Roscoe, Snyder & Pacific Railway Company, but in favor of the plaintiff against the Texas & Pacific Railway Company for $275, and against the receivers for $695. This appeal is prosecuted by the receivers.

No proof was made of the appointment of the receivers, and on account of the absence of such proof appellants insist that the judgment should he reversed. This assignment is overruled, for the reason that plaintiff! alleged the receivers had been duly appointed and as such were operating the Kansas City, Mexico & Orient Railway at the time the shipment was made, and this allegation was not specifically denied by the receivers. Furthermore, the receivers filed an answer in the suit as such receivers, and the trial proceeded with attorneys present and representing the receivers. Under such circumstances, plaintiff was not required to produce proof of such appointment. McNulta v. Ensch, 134 Ill. 46, 24 N. E. 631; McNulta v. Lockridge, 137 Ill. 270, 27 N. E. 452, 31 Am. St. Rep. 362. As the pleadings were all filed prior to the act of the Legislature of 1913, providing that allegations in verified pleadings, not denied under oath, shall be taken as confessed, and as plaintiff’s petition was not verified, that act is not applicable. See Acts 1913, c. 127 (Yernon’s Sayles’ Ann. Civ. St. 1914, arts. 1827-1829b).

Appellant cites Kirby Lumber Co. v. Cunningham, 154 S. W. 288, to support the contention that the burden was upon the plaintiff to prove the appointment of the receivers. We do not believe that that decision is in point for the following reasons: In that suit it was sought to hold the Kirby Lumber Company liable for the negligence of the receivers of the same company occurring prior to the time the receivership was closed and the property of the company turned over to the Kirby Lumber Company. In disposing of the case the court said;

“In order to make the lumber company liable in the present case, it would be necessary to allege and prove that the receiver had been discharged and the property of the company redelivered to it, and either that such property was equal in value to the amount of plaintiff’s claim, or that the payment of such claim had been made a condition of such redelivery of the property by the decree of the court terminating the receivership.”

Judgment was rendered in plaintiff’s favor for $20,000 against the Kirby Lumber Company, as well as against the receivers, and the amount of the judgment fixed and established as a lien upon the corporate assets of the Kirby Lumber Company. Clearly proof of the receivership was a necessary predicate for the judgment against the company, as much so as proof of any other fact. The receivers, as well as the company, appealed, notwithstanding no personal judgment was rendered against them; but as shown by the opinion, the court treated the appeal by the receivers as nominal only, and considered the lumber company as the only appellant having a substantial right to prosecute the appeal.

Appellants further -insist that there was no evidence tending to show what the condition of the cattle would have been upon their arrival at the place of destination, if they had been transported and delivered with ordinary care and diligence. According to testimony of plaintiff’s witnesses, the cattle were in good condition when they were loaded on the cars at Snyder, and the proof was uncontroverted that, when they reached their destination, 11 of them were dead, being piled upon each other, and many of the rest bruised, skinned, and in a very bad condition generally. It was also shown that no one accompanied the shipment for the plaintiff. Under such circumstances a prima fa-cie case of negligence was made by the plaintiff, and if any of the injuries sustained by the cattle were due to inherent vices of the animals, the burden was upon the defendant to show that fact. See F. W. & D. C. Ry. Co. v. Greathouse, 82 Tex. 111, 17 S. W. 834, St. L. & S. F. Ry. Co. v. Brosius, 47 Tex. Civ. App. 647, 105 S. W. 1131, and decisions there cited.

Appellants’ contention last noted was made the predicate of objections to the testimony introduced by the plaintiff relative to what would have been the market value of the cattle at their destination, had they arrived in good condition, and the assignments complaining of the admission of such testimony are overruled for the same reason already stated.

There was no error in refusing appellants’ requested charge No. 4, for the reason that it was covered by -another requested charge, No. 3, substantially to the same effect, and which was given.

Another assignment has been presented to the action of the trial judge in permitting one of the attorneys for the plaintiff to make use of the following argument to the jury:

“Gentlemen, you have heard the testimony of these railroad witnesses; but you know that witnesses such as these, in the employ of corporations like railroad companies, testify as they are told to do in order to hold their jobs.”

Appellants excepted to the remarks, and to the action of the court in permitting the same, upon the ground that they were highly inflammatory, based on no evidence in the case, and calculated to prejudice the rights of the defendant before the jury. W. D. Thompson, an employs of the receivers', who was conductor of the train that carried the cattle from Sweetwater to Hamlin, testified that the cattle were handled in a careful manner while they were being transported over the Kansas City, Mexico & Orient Railway, and no witness testified specifically to any rough handling while on that road. Furthermore, the evidence shows conclusively that the entire trip made by these cattle was not over 68 miles. They were shipped from Snyder to Roscoe over the Roscoe, Snyder & Pacific Railway, a distance of 25 miles; from Roscoe to Sweetwater over the Texas & Pacific Railway, a distance of 8 miles; and from Sweetwater to Hamlin, over the Kansas Oity, Mexico & Orient, a distance of about 35 miles. The shipment left Snyder at 4 o’clock p. m. on February 2Sth, and arrived at Hamlin at 6:15 o’clock on the following morning. The trip over the Texas & Pacific Railway from Roscoe to Sweetwater was made in about 15 minutes, and that road delivered the cattle upon the track of the Kansas 'City, Mexico & Orient Railway at Sweetwater at about 9:30 o’clock upon the night of February 28th. The cars in which the cattle rode remained standing upon the track of the latter company from 9:30 o’clock the night of February 28th until about 2:30 the following morning, when they were carried to Hamlin, reaching there at 6:15 the same morning, and delays amounting to practically 2 hours occurred on the trip between Sweetwater and Hamlin.

There was testimony strongly tending to show that the cattle were overcrowded when loaded in the cars at Snyder, although this was controverted by testimony offered by plaintiff. According to the testimony of one of the trainmen of the Texas & Pacific Railway Company, 5 or 6 of the cattle wez-e down in the cars when they reached Sweetwater. We are of the opinion that, in view of the testimony of appellants’ witness to careful handling noted above, and other facts recited, the argument of plaintiff’s counsel, which was improper, was reasonably calculated to cause, and probably did cause, an improper verdict against appellants, especially in view of the court’s- refusal to exclude it when appellants objected thereto; hence we sustain the assignment now under discussion. M., K. & T. Ry. Co. v. Woods, 25 S. W. 742; G., H. & S. A. Ry. Co. v. Washington, 42 Tex. Civ. App. 380, 92 S. W. 1054; Ft. W. Belt Ry. Co. v. Johnson, 125 S. W. 387, and decisions there cited.

Appellee calls attention to the fact that the bill of exception to that argument does not contain a statement by the judge who approved it that there was no evidence to warrant the argument of which complaint is made; the statement contained in the exception to that effect being merely a ground of objection urged by the appellant. While that is true, yet we find, in the statement submitted by appellant, under the assignment complaining of the argument, an assertion substantially to the effect that in the entire statement of facts there is an absence of any proof to warrant the argument, and appellee in his reply to that assignment has not controverted that statement. It is well settled by the decisions that the statement of facts may be looked to in aid of a bill of exception, in the absence of conflicts between them. Jami-son V: Dooley. 98 Tex. 206, 82 8. W. 780; Heffron v. Pollard, 73 Tex. 96, 11 S. W. 165, 15 Am. St. Rep. 764.

Appellee has cited I. & G. N. v. Rhoades, 21 Tex. Civ. App. 459, 51 S. W. 517, 52 S. W. 979, to sustain the argument as proper. In that case it was held that it was- not improper for counsel for plaintiff to argue, in effect, that employes of the railway company were under the necessity of testifying favorably to the company in order to hold their posi-tioizs with the company, because if they should testify to facts showing negligence on their part, and the company should lose in the suit, by reason of such negligence, it would be but natural and reasonable to suppose the company would discharge them. But the argument complained of in this- ease goes much further than that. It implies an assertion that the employes of the defendant railway companies had been instructed by their superiors in employment just what testimony to give, and that the instructions had been followed by the witnesses through fear of losing their positions. This assumption of fact was entirely outside the record, and was not a legitimate inference from any evidence in the record.

We fail to discover any conflict between paragraphs 3 and 4 of the court’s charge to the jury, as insisted by appellants in another assignment

For the reasons indicated, the judgment against appellants is reversed, and the cause remanded for another trial between the ap-pellee D. G. Cave and appellants.

We find brief and also transcript filed in this cause by the Texas & Pacific Railway Company; but the same cannot be considered, for the reason that upon a former day of this term of court, in an appeal prosecuted by that company separately from the present appeal, the briefs of that appellant were not filed within the time prescribed by the rules, and a motion to file the same was denied, and that appeal dismissed.

The case was tried upon the theory of separate liability of the different defendants, and, plaintiff’s causes of action against them being severable, the reversal of the judgment as) to one for another trial does not require a reversal as- to others. See T. C. Ry. Co. v. Moore, 103 Tex. 349, 127 S. W. 797.

Reversed and remanded.
      <©=^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MeMEANS, J.

text:
    COMMERCIAL UNION ASSUR. CO., Limited, v. GULF REFINING CO.
    (No. 6753.)

    (Court of Civil Appeals of Texas. Galveston.
    Feb. 16, 1915.
    Rehearing Denied March 11, 1915.)
    1. Negligence <@=o62 —Use of Dangerous Abticles—Proximate Cause.
    One supplying gasoline to a boat carried the same in open buckets, some of which were left on the wharf, while others were taken on the boat to be poured into a tank. While pouring gasoline into the tank, a match on the boat was ignited, which set fire to the gasoline, and the fire was communicated to another boat. HeM, that the negligence of placing open buckets of gasoline on the wharf was not the proximate cause of the injury by fire to the other boat, but the proximate cause was the ignition of the gasoline by the match.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 76-79; Dec. Dig. <⅛=62.]
    2. Negligence <⅞⅜=>136 — Proximate Cause-Question of Fact.
    Whether an act is the proximate cause of an injury complained of is a question of fact, unless the evidence leaves no room for ordinary minds to differ.
    [Ed. Note. — For other eases, see Negligence, Cent. Dig. §§ 277-353; Dec. Dig. ®=»136.]
    3. Appeal and Error <S=»1071 — Harmless Error — Statement of Facts in Conclusion of Law.
    It is not reversible error for the court, stating conclusions of fact and law, to state in the conclusion of law a conclusion of fact.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4234-4239; Dec. Dig. 1071.]
    4. Pleading <®=>36 — Admissions — Conclusiveness.
    A plaintiff, who did not avail himself of an admission in the answer, but resorted to proof of facts at variance with the facts stated in the answer, could not complain of findings contrary to the admissions.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 81-86; Dec. Dig. <®=>36.]
    Appeal from District Court, Harris County; William Masterson, Judge.
    Action by the Commercial Union Assurance Company, Limited, against the Gulf Refining Company. From a judgment for defendant, plaintiff appeals.
    Affirmed.
    Andrews, Streetman, Burns & Logue, of Houston, for appellant. F. C. Proctor and D. Edward Greer, both of Beaumont, for ap-pellee.

       Writ of error pending in Supreme Court.

   MeMEANS, J.

The Commercial Union Assurance Company, Limited, brought this suit against the Gulf Refining Company for the recovery of damages in the sum of $2,500, sustained by a boat named Lynn II, owned by F. F. Arnim, alleging that it had issued a policy of insurance covering said boat, that the same had been damaged by reason of a fire communicated to it from gasoline resulting from the negligence of the defendant, and that the claim of the said Arnim for damages on account of said negligence had been assigned to plaintiff. The case was tried before the court without a jury, and resulted in a judgment for defendant, and plaintiff has appealed.

The court, upon proper request, filed its findings of fact, which are as follows:

(1) On and prior to June 28, 1912, F. F. Ar-nim was the owner of a certain boat named Lynn II.
(2) Plaintiff, prior to that time, had issued a policy of insurance upon said boat in the sum of $10,000, which was then in force.
(3) On said 28th day of June, 1912, said boat was damaged by fire, which occurred under the circumstances hereinafter stated, to the extent of $2,500, which amount the plaintiff paid to said F. F. Arnim, and took an assignment of any cause of action which the said F. F. Arnim may have had against the defendant in this case, and the plaintiff thereby became the owner of any cause of action which said F. F. Arnim may have had against the defendant on account of the damage to said boat.
(4) On the 28th day of June, 1912, said F. F. Arnim, as he had a lawful right to do, had placed his boat, Lynn II, covered by said policy as aforesaid, alongside a wharf, said wharf being constructed in the edge of Buffalo Bayou, at Harrisburg, in Harris county, Tex., which said wharf said Arnim then and there had the right to use, and which said wharf was directly across the street in said town of Harrisburg from the place so maintained by the defendant, as hereafter stated, for the storage and sale of oil.
(5) On the said 28th day of June, 1912, the defendant had and maintained at Harrisburg, in Harris county, Tex., a place where it stored certain oils, among which was gasoline, and the defendant was then and there, and had for some time prior thereto, been engaged in the business of selling oils, including gasoline, to boats on Buffalo Bayou.
(6) On said 28th day of June, 1912, the defendant sold to the owner of another boat, named The Mary Ida, 20 gallons of gasoline, and first undertook to deliver said gasoline to said boat, The Mary Ida, at a point in the bayou a short distance above the place where said Lynn II was lying at said wharf. This being found inconvenient, the Mary Ida was then moved down the bayou to the whai’f where said Lynn II was lying, the stern lines on said Lynn II were loosened and the stern of said boat pushed out above 8 or 10 feet from the edge of said wharf, and the bow of the boat Mary Ida brought up into this space and adjacent to' said wharf. The agent of the defendant and an employs on said boat Mary Ida then took from the oil station of the defendant two buckets each of gasoline, each of said buckets containing about 5 gallons of gasoline, and took the same to and upon said wharf. The agent of the defendant set down upon the wharf the two buckets which he had carried, right in the end of the wharf, about 10 or 12 feet from the Lynn II, and about 2 or 3 feet from the bow of the Mary Ida, and the employe on the boat Mary Ida set down upon said wharf one of the buckets which he had carried, and took the other bucket which he had carried upon the deck of the boat Mary Ida and began to pour the gasoline from said last-mentioned bucket into the gasoline tank near the front of said boat Mary Ida. The buckets in which said gasoline was handled were open buckets. The usual and ordinarily careful method of handling gasoline under such circumstances was not in open buckets, but in closed buckets; and I find that it was a lack of ordinary care upon the part of the defendant to handle said gasoline in said open buckets. The said employé on said boat Mary Ida, having gone on said boat as aforesaid with said bucket of gasoline; and while pouring the gasoline from said bucket into the tank on said boat, stepped upon a match which had been left upon the deck of said boat, and thereby ignited the gasoline which was being poured from said bucket into said tank. Said employs then undertook to escape from said boat with said burning can of gasoline in bis hand, and attempted to run back onto the wharf, and as he did so he approached near the place where the three buckets of gasoline had been left upon said wharf. When he got near said three'cans of gasoline which had been set upon said wharf, as above stated, one of said cans on said wharf was ignited on account of the gasoline which had evaporated from said open buckets into the atmosphere at and near said three buckets; but the fire thereof did not communicate to the Lynn II, same being confined to the wharf, and thereupon said em-ployé of said boat Mary Ida threw over into tlie bayou between the wharf and the Lynn IX the burning can of gasoline which he was carrying in his hand. This burning gasoline, floating upon the water, communicated the fire to the Lynn II and caused the damage which is complained of.”

Upon the foregoing fact findings the court found that it was negligence on the part of the defendant to have set the three cans of gasoline upon the wharf in open instead of closed buckets, and that if it had been shown that the fire which was communicated to and caused the damage to the boat Lynn II was communicated from the gasoline in said three buckets so set upon the wharf, that such damage was the proximate result of said negligence, but that, it not having been proved that the fire which damaged said boat was communicated from the three cans of burning gasoline which were set upon the wharf, nor that it had any connection therewith, but was communicated from the gasoline contained in the can which was thrown over by the said employé of the boat Mary Ida, the damage was not the proximate result of said negligence.

Appellant’s first assignment of error, which is submitted as a proposition, is as follows:

“The court erred in its conclusions of law in that portion thereof which is as follo.ws: Tt not being proved, however, that the fire which damaged said boat, Lynn II, was communicated from the burning of said three cans of gasoline setting upon said wharf, nor that it had any connection therewith, but was from the gasoline contained in the can which was thrown overboard by said employé of the boat Mary Ida into the water, and thence communicated to the Lynn II, I conclude that said damage was not the proximate result of said negligence.’ Because, the evidence having shown and the court having in effect found that the fire from the gasoline upon the wharf was the result of defendant’s negligence, and the evidence having-shown and the court having in effect found that the throwing into the water of the burning gasoline which set fire to the boat was an act caused directly by and arising out of the emergency created.by defendant’s negligence, it was error to find as matter of law that said act and the damage resulting therefrom was not the proximate result of defendant’s negligence, and to fail to find that the damage was the proximate result of said negligence.”

Appellant also submits an additional proposition under this assignment, viz.:

“The court having found that the fire on the wharf was caused by the negligence of the defendant, and the undisputed evidence as well as the court’s findings of fact showing that the throwing of the gasoline into the water was an act done in the emergency and danger arising from the situation created by said negligence, the act of throwing said gasoline into the water is not to be deemed an independent or intervening cause, but will be regarded as the proximate result of the original negligence which caused the fire and the emergency and danger resulting therefrom.”

We cannot agree to appellant’s contention that the court found, in effect that the throwing into the water of the burning gasoline, which ignited while being poured into the tank of the Mary Ida, and which set fire to the Lynn II, was an act caused directly by and arising out of the emergency created by defendant’s negligence in setting the three open buckets of gasoline on the wharf, nor that the undisputed evidence as well as the court’s findings show that the throwing of the burning gasoline into the water was an act done in the emergency and danger arising from a situation created by said negligence. On the contrary, the evidence justifies the finding, and we think a reasonable construction of the court’s findings warrants the conclusion, that the emergency which caused the employs of the Mary Ida to throw the gasoline in the water arose, not because of the spread of the fire to the buckets left on the wharf, but by the ignition of the oil which he was pouring into the Mary Ida’s tank. The testimony on this point, from which the court must necessarily have found the facts, was given by the employe of the Mary Ida. He testified in part:

“I stepped on a match on the bow of the Mary Ida, and set the can of gasoline that I was pouring into the Mary Ida afire. It broke out right under my feet. I tried to get back to the wharf with the can that I had in my hand, and set another can on the wharf afire, and I threw the can I had in my hand overboard.”

Again he says:

“I took five gallons on the boat. I poured part of it into the tank of the Mary Ida, and the balance, after it got afire, I threw overboard.”

And again:

“It is a fact that one or more of the buckets which were thus set down on the wharf by the side of the Lynn II caught fire when I ran from the boat, Ida, with the bucket in my hand. They did not all catch fire at that time, but all caught fire later.”

It was further shown by the testimony of this witness that the fire that was communicated to the Lynn II was not from any of the three buckets of gasoline left on the wharf, but from the gasoline which was ignited while being poured into the tank of the Mary Ida, and which was thrown into the water.

Treating the conclusion of the trial court to the effect that the setting of the three buckets of gasoline on the wharf in open instead of closed buckets was negligence on the part of the defendant, the question arises: Was such negligence the proximate cause of the damage to the Lynn II? We think not. As argued by appellee, it is apparent that the real cause of the damage was the negligent leaving of a match on the deck of the Mary Ida, for the ignition of the gasoline that was being poured into the tank of this boat was caused by stepping on the match. The absence of a top on the can was not in itself the cause of the gasoline catching fire, because it is the undisputed evidence that, had there been a top or cover on the can, it would have been necessary to remove it, or open the can, in order to pour out the gasoline. If the owner of the Mary Ida had been sued, could he have defended on toe ground toat appellee was negligent in irsing open buckets? The answer would be, it seems to us, toat toe using of toe open bucket did not cause toe fire, but toe leaving of toe match on toe deck in close proximity to where the gasoline had to be poured into the tank was the cause. If this is true, it' necessarily follows toat the negligence of appellee in leaving the gasoline on the wharf in open buckets was not the proximate cause of the damage.

Appellant seeks to bring this case within the rule announced in Railway v. Neff, 87 Tex. 303, 28 S. W. 283, wherein our Supreme Court, quoting from Beach on Negligence, says:

“When a plaintiff, through the negligence of the defendant, is placed in a situation where he must adopt a perilous alternative, or where, in the terror of an emergency for which he is not responsible and for which the defendant is responsible, he acts wildly or negligently, and suffers in consequence, such negligent conduct under these circumstances is not contributory negligence, for the reason that persons in great peril are not required to exercise all that presence of mind and carefulness which are justly required of a careful and prudent man under ordinary circumstances. In such a case the negligent act of the defendant is the proximate cause of the injury, and the plaintiff may have his action, * * * even though the injury would not have happened if the acts had not been done.”

The rule is stated more tersely and clearly by Judge Brown in toe opinion as follows:

“The rule is sound and just which holds the party guilty of negligence responsible for the result, if that negligence has caused another to be surrounded by such circumstances as to him appear to threaten the destruction of his life or serious injury to his person, whether that person be prudent or imprudent, if in an effort to save his life he makes a choice of means from which injury results, and notwithstanding it may turn out that if he had done differently, or had done nothing, he would have escaped injury altogether.”

The testimony does not show toat toe negligence of appellee in leaving toe open buckets of gasoline on toe wharf placed the employs of the boat Mary Ida in a situation where he had to adopt a perilous alternative, or that it caused him to be surrounded by such circumstances as to appear to him to threaten the destruction of his life or serious injury to his person. That he was so placed in a perilous and threatening situation by burning gasoline, or that it so appeared to him, the evidence, we think, shows. That the throwing of the bucket of burning gasoline which he carried in his hand from the boat to toe wharf was the result of a fear for his own safety is a conclusion which the evidence, we think, justifies. But this fear was caused, we think (or at least the evidence justifies the conclusion), by the ignition of the oil which he was pouring into the tank of toe boat, and not from the catching on fire of the buckets of gasoline left on the wharf. If he acted in the terror of an emergency, there is nothing in his testimony on which to base a finding that his terror, or his act in throwing the gasoline into the water, was caused by the gasoline on the wharf catching fire. If this is true, then the negligence of the appellee in leaving toe gasoline on the wharf in open buckets could not have been the proximate cause of the damage sustained by the Lynn II; the evidence clearly showing that the burning gasoline on the' wharf did not reach or communicate the fire to that boat.

By a second proposition appellant contends that, if it is incorrect in its contention that under the facts found by the court the damage complained of was the proximate result of the defendant’s negligence, nevertheless the court erred in finding as a matter of law from toe admitted facts that such damage was not the proximate result of said negligence; the question of proximate cause being at best a question of fact, which should have been passed upon as such by the court, and not as a question of law resulting from the admitted facts. Whether an act of a defendant is toe proximate cause of an injury sustained by a plaintiff is a question of fact, to be found from the evidence as any .other fact, unless the evidence on that issue leaves no room for ordinary minds to differ as to the conclusions to be drawn from it, in which case it becomes a question of law. But we do not think it reversible error for the court, after it has stated the facts upon which its conclusions of law are based, to state in such conclusions a finding which should have been embraced in the findings of fact. In all cases where the facts are in dispute, it is the proper practice for the court to settle such disputed issues in its findings of fact; but because some of such issues may be settled in stating the legal conclusions drawn from the facts so found, a reversal will not be granted unless it be shown that the rights of the complaining party have been prejudiced thereby. No such prejudice has been shown by the deviation from the general rule here complained of.

By a third proposition, which is also submitted as a fundamental error apparent upon the face of the record, appellant complains that it Was error for the court to find that it was not proved that the fire which damaged the Lynn II was communicated from the burning of the cans of gasoline setting bn the wharf, nor that it had any connection therewith, but was from the gasoline in the can which was thrown over by the employs of the Mary Ida, for the reason that the defendant in its answer admitted that one of said cans setting on the wharf was thrown by the employs into the water after it had been set afire, and that the burning gasoline therefrom did communicate itself to the Lynn II and damage the boat, and that, this unqualified admission being contained in defendant’s answer, the admitted fact was conclusively presumed to be true, and required no further proof for its establishment. The answer of the defendant contained the following:

“The cans of gasoline which had been put there (on the wharf) were thereby ignited. * * * That after he got upon the wharf, and in order to prevent the wharf from burning, he seized one of the burning cans and threw .it out into the bayou and in the direction of the boat Lynn IX. That the gasoline thus thrown on the water continued to burn, and the flames were communicated to the sides and superstructure of the boat Lynn II.”

It is true that a fact against interest, admitted in a pleading, may be conclusively presumed, and requires no further proof for its establishment; and if plaintiff in this ease desired to avail itself of the admission, if, indeed, it is an admission, it rested under no duty of resorting to proof. But it did resort to proof, and proved a state of facts utterly at variance with the facts stated in the answer. Having introduced the proof, it was for the court to say whether the statement in defendant’s answer was true, or whether the testimony of plaintiff’s witness was true; and, having reached the conclusion that the true facts were as shown by the testimony of plaintiff’s witness, and not by the statements in the answer, and having so found, the appellant has no right to complain.

We find no reversible error in the record, and the judgment of the court below is affirmed.

Affirmed.
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author: DUNKLIN, J.

text:
    CROWELL INDEPENDENT SCHOOL DIST. v. FIRST NAT. BANK OF BENJAMIN.
    (No. 8075.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Jan. 16, 1915.
    Rehearing Denied Feb. 27, 1915.)
    1. Venue €=>34^-Plea of Privilege — 'What Law Governs — Institution of Suit.
    Where suit was instituted January 15, 1913, and a plea of privilege to be tried in another county filed February IS, 1913, and where the judgment rendered thereafter was reversed and remanded, and another plea of privilege filed on February 17, 1914, the date of “institution of suit” was the date when the petition was filed, though it was held insufficient for failure to state a cause of action, and an amended petition was filed subsequent to July 1, 1913; and hence the merits of the plea of privilege were to be determined under the statute existing before July 1, 1913, which authorized the bringing of suit in any county where any one of the defendants resided, rather than under Act July 1, 1913 (Acts 33d Leg. c. 177; 'Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1830), providing that the transfer of a note or chose in action shall not give any subsequent holder the right to sue in any county other than that in which the suit could have been prosecuted, if no transfer had been made.
    [Ed. Note. — For other cases, see Venue, Cent. Dig. § 52; Dec. Dig. €=>34.]
    2. Schools and School Districts €=>1⅛-Action Against — Venue.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2822, providing that school district trustees shall constitute a body corporate, which may sue and be sued in any court of proper jurisdiction, a school district may be sued in other courts than those of its domicile, under circumstances authorizing defendants in general to be thus sued.
    [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. | 271; Dee. Dig. €=>114.]
    3. Venue €=>68 — Plea of Privilege — Sufficiency of Evidence.
    Evidence in a bank’s action on a draft drawn by contractors on the trustees of a school district, wherein it was contended, in support of the defendant school district’s plea of privilege to be tried in another county, that the transfer to the bank was a mere hypothecation of the claim as collateral, held to sustain a finding adverse to the plea of privilege.
    [Ed. Note. — For other cases, see Venue, Cent. Dig. § 121; Dec. Dig. €=>68.]
    4. Trial €=>85 — Evidence—Objection—Sufficiency.
    Error cannot be predicated on objections addressed to the admission in evidence of two instruments, and not separately to the admission of one, where it appears that one instrument was admissible, though the other was not.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 222, 223-225; Dec. Dig. €=>85.]
    5. Contracts €=>322 — Building Contract-Action for Balance Due — Evidence — Architect’s Final Estimate.
    Where, in a bank’s action on a draft drawn by contractors on the trustees of a school district for a balance due the contractors for erecting a schoolhouse, it appeared that the building contract made the architect the arbiter of the amounts due as the work proceeded, the architect’s final estimate of the amount due was properly admitted in evidence.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1306, 1307, 1339, 1347, 1348, 1465, 1492, 1534-1542, 1754, 1768, 1772, 1801, 1802, 1804-1808, 1815, 1816; Dec. Dig. €=> 322.]
    6. Bills and Notes €=>503 — Action on Draft — Consideration—Evidence.
    In such action, the deposit slip given to the contractors, when they delivered the draft to the bank, was admissible to show that a consideration was paid for the draft, and that the transaction was a bona fide transfer of the contractors’ claim.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1733-1739; Dee. Dig. €=> 503.J
    7. Bills and Notes €=>400 — Action on Draft — Joinder of Parties — Indorsers.
    In a bank’s action on a draft drawn by building contractors, on trustees of a school district, for the balance due for erecting a schoolhouse, the contractors, having guaranteed payment of the draft, were properly joined with the trustees of the school district as parties defendant.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1431-1443; Dec. Dig. €=> 460.]
    Appeal from District Court, Knox County; Jo A. P. Dickson, Judge.
    Action by the First National Bank of Benjamin against the Crowell Independent School District. From judgment for plaintiff, defendant appeals.
    Affirmed.
    G. W. Watthall and Robert Cole, both of Crowell, and J. H. Milam, of Seymour, for appellant. Jas. A. Stephens and D. J. Brook-reson, both of Benjamin, for appellee.
   DUNKLIN, J.

The disposition of a former appeal of this case appears in 163 S. W. 339. The trustees of the Crowell independent school district of Foard county, duly incorporated as such, erected a schoolhouse in that district; Rogers and Bisbee being the contractors. When the house was finished, the contractors drew a draft upon the trustees of the school district, in favor of the First National Bank of Benjamin, for the balance which the contractors claimed to be due them for the work, and guaranteed the payment of the draft. The bank instituted this suit in the district court of Knox county, where Rogers and Bisbee resided, in which they prayed judgment for the amount of the draft against the school district as principal debt- or, and against Rogers and Bisbee as guarantors, alleging the transfer of the balance due the contractors to them; and from a judgment in favor of the plaintiff, the school district has appealed.

The principal question to be decided, which is raised by several assignments, relates to the action of the court in overruling the plea of privilege presented by the trustees of the school district to be sued in Foard county, rather than in Knox county. On the former appeal this court held that plaintiff’s petition failed to state a valid cause of action as against a general demurrer. The suit was instituted January 15, 1913. The original plea of privilege was filed February 18, 1913, and the first judgment was rendered at the court’s February term, 1913. After that judgment was reversed, and the cause remanded for another trial, the trustees of the school district filed another plea of privilege on February 17, 1914. By Act 33d Legislature, c. 177, which took effect July 1, 1913, and which is now article 1830, 2 Vernon’s Say les’ Tex. Civil Statutes, it is provided that:

“The transfer or assignment of note or chose of action shall not give any subsequent holder the right to institute suit on such note or chose of action in any other county or justice precinct than the county or justice precinct in which such suit could have been prosecuted if no assignment or transfer had been made.”

Appellant invokes the benefits of that statute upon the theory that as plaintiff’s original petition upon which the first judgment was rendered failed to state a cause of action valid as against a general demurrer, and which petition was not amended until after the act of the Legislature referred to had become effective, the date of filing the amended petition, rather than the date when the original petition was filed, should be regarded as the date of the institution of the suit. In Killebrew v. Stockdale, 51 Tex. 529, and Tarkinton v. Broussard, 51 Tex. 550, it was held that the institution of a suit by a petition which identifies the cause of action, but which for lack of material averments is not good as against a general demurrer, is sufficient to stop the running of the statute of limitation, and this rule is now well established in this state.

For the same reason we are of the opinion that in determining the question now under consideration, the date of filing the original petition should be regarded as the date of the institution of this suit, and as the first plea of privilege was filed before the act of the Legislature referred to took effect, the merits of the plea of privilege should be determined under the former statute, which did not contain the provision above quoted, but which provided that, where there are two or more defendants residing in different counties, a suit might be brought in any county where any one of the defendants resides.

It is insisted, further, that the school district, “being a public corporation of the nature of a municipality, with fixed boundaries and organized for public purposes, the law, as well as public policy, will not permit its officers and agents to be sued in other courts than those of its domicil.” We think the statutes of this state settle that question contrary to appellant’s contention. By article 2822, 2 Vernon’s Sayles’ Tex. Oiv. Stats., it is expressly provided that trustees of school districts, and their successors in office, “shall be a body politic and corporate in law, shall be known by and under the title and name of district trustees of district No. -, County of -, State of Texas, and as such may contract and be contracted with, sue and be sued, plead or be impleaded, in any court of this state of proper jurisdiction, and may receive any gift, grant, donation, or devise made for the use of the public schools of the district.” For purposes of litigation that statute puts the trustees of school districts on the same plane with other corporations, with the same rights, and subject to the same burdens.

Several assignments are addressed to the sufficiency of the evidence to support the finding of the jury adverse to the plea of privilege. The principal contention made is that the evidence shows conclusively that the alleged transfer of the debt claimed by the contractors was not an absolute transfer, but that the transaction amounted to no more than a hypothecation of the claim to the bank as collateral security for money which the contractors owed the bank. The president of the bank testified that, at the time the draft was given by the contractors to the bank, a deposit slip was issued to the contractors for the amount of the draft, and that the amount of such deposit was actually paid to the contractors. This evidence, in connection with the draft, and other evidence showing a balance due on the contract in the same amount as the draft, was sufficient to support the action of the jury in rejecting the plea of privilege, notwithstanding the further testimony of the president of the bank that, when the draft was dishonored, the amount of it was charged back to the contractors, who thereafter were not allowed any credit for the draft. Provident Nat. Bank v. Hartnett, 100 Tex. 214, 97 S. W. 689; Vaughn v. F. & M. Nat. Bank of Alvord, 126 S. W. 690.

An assignment is presented to the admission in evidence of the final estimate of the architect who superintended the construction of the building. The bill of exception to the admission of this estimate shows that at the time of its admission the draft was also admitted, and that appellant’s objections were addressed to both instruments, and not to the estimate of the architect separately. As the draft was unquestionably admissible, that fact of itself would be a sufficient answer to the assignment now under discussion. However, we are of the opinion that the estimate of the architect was admissible, at all events, since by the terms of the building contract the architect, in effect, was made the arbiter to determine amounts due under the contract as the work proceeded. The deposit slip given to the contractors at the time they delivered the draft to the bank clearly was admissible in evidence to show that a consideration was paid for the draft, and that the transaction was a bona fide transfer of the claim the contractors held against the trustees of the school district. Unquestionably, the contractors were liable upon the draft given to the bank, and therefore there is no merit in the contention that they could not be joined with the trustees of the school district as parties defendant. See authorities above cited.

We deem it proper to note, in conclusion, that appellee has objected to several of the assignments of error upon the ground that the same are not in compliance with the rules, some of which objections, at least, seem to be valid; but, without passing upon those objections, we have considered the questions noted above, upon the theory that possibly they are sufficiently presented by other assignments, which are probably in compliance with the rules.

The judgment is affirmed.
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