author: McKENZIE, J.

text:
    GOOD v. TEXAS & P. RY. CO. et al.
    (No. 291.)
    (Court of Civil Appeals of Texas. El Paso.
    March 26, 1914.
    On Rehearing, May 7, 1914.)
    1. Carriers (§ 228) — Similar Transactions —Necessity or Showing Similarity or Conditions.
    In an action against carriers for damages to a shipment of cattle which they claimed were due to plaintiff's negligence in unloading and dipping the cattle under the quarantine regulations and in their handling and treatment incident to the dipping, evidence that, when they were unloaded, a number of other cattle of like ages were placed with those in question, and thereafter handled, dipped, and shipped alike, and that none of such other cattle were injured, was properly excluded, where it was not' shown that such other cattle were in the same physical condition as those in question, and it was not sufficient to merely show that they were the same or similar ages, or that they were all steer cattle.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 957-960; Dec. Dig. § 228.]
    2. Evidence (§ 43) — Judicial Notice — Judicial Records.
    The Court of Civil Appeals will take judicial notice of the opinion and record on a former appeal of the same action.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 62-65; Dec. Dig. § 43.]
    3. Witnesses (§ 373) — Impeachment — Necessity ox Laying Foundation.
    Where an expert witness was not interrogated a§ to what he was to be paid for attending court, evidence could not be introduced, after he had testified and left the county, that he was paid in connection with his testimony.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 1200; Dee. Dig. § 373.]
    4. Appeal and Error (§ 1056) — Harmless Error — Exclusion ox Evidence.
    Where practically all of defendants’ witnesses were questioned and testified as to the compensation which they were to receive for their time and expense for attending the trial, the exclusion of testimony that an expert witness not so interrogated was paid for testifying was not prejudicial.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4187 — 4193, 4207; Dee. Dig. Í 1056.]
    5. Trial (§ 296) — Instructions—Cure by Other Instructions.
    Where an instruction was not on the weight of the evidence, or misleading when read in connection with the general charge, the giving thereof was not error.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 705-713, 715, 716, 718; Dec. Dig. § 296.]
    6. Trial (§ 194) — Actions xor Injuries to Live Stock — Instructions.
    In an action for injuries to a shipment of cattle, where it appeared that the cattle were unloaded and dipped under the quarantine regulations under the control and charge of the shipper, who by contract waived any damage from the handling and dipping, and that he accompanied the cattle under a contract to look after them, and was in as favorable a position as the carriers to know of any acts of negligence, an instruction that the carriers owed no duty to deliver the cattle in good condition, but were only responsible for negligence, ■was not objectionable as on the weight of the evidence.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 413, 436, 439-441, 446-454, 456-466; Dec. Dig. § 194.]
    7. Trial (§ 256) — Instructions—Necessity ox Requests.
    Where any error in the charge was one of omission and not of commission, a charge correcting the omission should have been requested.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 628-641; Dec. Dig. § 256.]
    8. Appeal and Error (§ 699) — Record-Matters Presented for Review.
    Where appellees’ requested charge No. 12 was indorsed by the trial judge, “Given after the court had prepared and read to the jury its principal charge,” while charge No. 13 was indorsed, “Refused after main charge prepared and read' to the jury, and after special charge No. 12 had been requested and refused,” any alleged error in charge No. 12 would not be reviewed, as it could not be told whether that charge was given or refused, and if appellant desired it reviewed, he should have corrected the record.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2928-2930; Dec. Dig. § 699.]
    9. Appeal and Error (§ 1068) — Harmless Error — Cure by Verdict.
    A judgment would not be reversed for error in the instructions rendered harmless by the verdict.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4225l-422'8, 4230; Dec. Dig. § 1068.]
    10. Trial (§ 260) — Instructions Covered by Those Given.
    It was not error to refuse an instruction fully covered by the main charge.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dee. Dig. § 260.]
    11; Carriers (§ 230) — Actions xor Injuries to Live Stock — Instructions.
    In an action against carriers for injuries to a shipment of cattle, where it appeared that plaintiff accompanied the shipment and had ample opportunity to observe any acts of negligence, and there was no evidence of any latent injuries to any of the cattle, an instruction that the damages need not become manifest on the line of the railway company causing them, it being sufficient if the damages were caused by the negligence of the railway company, was properly refused.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 961, 962; Dec. Dig. § 230.]
    Appeal from District Court, Midland County; S. J. Isaacs, Judge.
    Action by E. C. Good against the Texas & Pacific Railway Company, the Houston & Texas Central Railroad Company, and another. From a judgment for the defendants named, plaintiff appeals.
    Affirmed.
    See, also, 151 S. W. 617.
    A. S. Hawkins, of Phcenix, Ariz., Earl Anderson, of Midland, Gross, Allen & Gross, of Mineral Wells, and Galloway & Whitaker, of El Paso, for appellant. Douthit & Smith, of Sweetwater, Jno. B. Howard, of Midland, W. L. Hall, of Dallas, and Baker, Botts, Parker & Garwood, of Houston, for appellees.

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

   McKENZIE, J.

This suit was instituted in the district court of Midland county by appellant to recover of the Houston, East & West Texas Hallway Company and the ap-pellees, Houston & Texas Central Railroad Company and Texas & Pacific Railway Company, certain damages growing out of a shipment of cattle from Humble, Tex., to Mona-hans, Tex., over said lines of road. This is the second appeal of the case. See Texas & Pacific Ry. Co. v. Good, 151 S. W. 617. On the former appeal a judgment in favor of the Houston, East & West Texas Railway Company was affirmed. As negligence on the part of the appellee Houston & Texas Central Railroad Company, appellant alleged a delay of four hours at Houston, and rough handling between Houston and Ft. Worth, also a delay at Ft. Worth of three hours; that because of such negligence said cattle were crippled, bruised, and rendered less able to stand the remainder of their journey. As negligence on the part of the Texas & Pacific Railway Company, appellant alleged a delay at Ft. Worth of four hours and rough handling between Ft Worth and Monahans; that by reason of the negligence of the defendants 128 head of said cattle died, and about 100 head were badly injured. Each of the appellees answered by general denial, and specially as follows: (1) That it was agreed appellant should feed, water, load and reload said cattle, which he failed to do; (2) the clause in the shipping contract, limiting liability to each defendant’s line of road; (3) that said cattle were shipped from below the quarantine line, and had to be dipped in accordance with the quarantine regulations in a preparation authorized by the state and federal authorities; that said cattle were poor and thin when shipped; that same were unloaded and dipped twice in arsenic solution, thereby causing the alleged injury; (4) that between the two dippings of said cattle, they were held at Sweetwater for about 10 days without feed and upon insufficient grass to sustain them, causing said cattle to become poor and weak, and unable to stand the dipping; (5) that immediately after the said cattle were dipped the second time, and on a hot day, they were driven to the pens and "loaded for shipment, causing them to become injured — all of which was pleaded as contributory negligence on appellant’s part, and as the proximate cause of said injuries. By way of reply to said answers, appellant denied generally and specially the acts charged against him as contributory negligence, and pleaded that said cattle were delivered to the defendants in good shipping condition, and that if the dip killed any of said cattle, it was on account of the previous negligence on the part of the appellees which rendered said cattle less able to undergo said dipping process; that defendant Texas & Pacific Railway Company undertook to load said cattle at Sweetwater, and in loading them its employés unduly roughly handled and mistreated said cattle, thereby injuring them and augmenting the damage. From a verdict and judgment in favor of the defendants, Houston & Texas Central Railroad Company and Texas & Pacific Railway Company, the plaintiff appeals.

The first assignment of error complains of the action of the trial court in excluding testimony to the effect that after the alleged damaged cattle had arrived at Sweetwater they were placed in a nearby pasture; that on the same day 160 head of other cattle of like ages were turned in the same pasture and mixed therewith; that after all of the cattle, as mixed, were held in the pasture together, were fed, watered, dipped, handled, • and shipped alike until they arrived at plaintiff’s ranch at Monahans; and that none of the 160 head were injured or had died. It is contended by appellant that the evidence was admissible to negative the appellees’ defense to the effect that the solution in which the cattle were dipped was too strong, and that the handling and treatment which the cattle received prior to and incident to their being dipped in said solution was the cause of the injury and death of said cattle, and not the dipping. The trial court qualified the bill of exceptions upon which the assignment of error is predicated, to the effect that at the time the evidence was offered, it had not been shown that the 160 head of cattle were in the same condition as were the cattle in controversy. It is apparent that the evidence was offered for the sake of comparison, to show that the 160 head of cattle did not die from the dipping process, nor from their handling during the dipping period. To make the evidence admissible for the sake of comparison, it was incumbent upon appellant to first show that the cattle in question were of the same physical condition as were the 160 head which it is claimed did not die, and to merely show that the cattle were the same or similar ages, or that they were steer cattle, would not be sufficient.

Plaintiff’s testimony on this and the former trial is to the effect that the Humble shipment which involve the cattle in question arrived in Sweetwater in bad condition, i. e., they were crippled, bruised, and showed to-be in a weak condition physically; while on the former trial, as shown by the former opinion, supra, and by the record of the former appeal, of which we take judicial notice, his testimony was to the effect that the Navasota shipment, out of which the 160 head of cattle were taken, arrived in Sweet-water in good condition. It is apparent, then, from the plaintiff’s testimony, that the two bunches of cattle were not of the same physical condition, and it would have been improper to have permitted the testimony to have gone to the jury for the sake of comparison, without first showing that their condition was practically the same. Other testimony in the record shows that the 160 head of cattle were mixed with the Humble shipment and were fed, watered, pastured, and dipped alike, and were mixed indiscriminately in the same cars when shipped to Monahans without injury, which would indicate that they were stronger cattle. Because of this testimony also, the error in refusing to admit the testimony complained of would become harmless. The assignment of error is therefore overruled.

The second assignment of error complains of the action of the trial court in excluding testimony to the effect that, after the witness Dr. Harry Grafke had testified in behalf of appellees, he was paid a sum of money at' the instance -of the defendant, in connection with his testimony upon the trial. The bill of exception, as approved, contains an explanation by the trial court to the effect that the witness, when on the stand, was not interrogated about what he was to receive for his time in attendance upon the court, and had no opportunity to explain, and, further, that at the time plaintiffs offered to prove that the witness Grafke received compensation for his attendance upon court, he had left the county. The testimony of this witness shows him to be a veterinary surgeon in the employ of the government, located at Big Springs, and that he testified as an expert as to the effect of the arsenic dip, upon the cattle, and no- , where was he questioned as to compensation which he was to receive for his attendance upon the court as a witness. The record discloses the fact that practically all of the appellees’ witnesses on the trial were questioned as to the amount of compensation which they were to receive for their time and expense for attending the trial, and in each instance the witness detailed to the jury that he was to receive compensation for his time and expense. We are of the opinion that the exclusion of the testimony in this instance could not have in any manner affected the verdict of the jury. Plaintiff’s purpose, no doubt, in introducing the testimony was to show the interest or bias of the witness, and it is well settled that, in order to warrant the introduction of such testimony, the proper predicate must be first laid by interrogating the witness concerning the specific matters by which it is proposed to impeach the witness. The witness in this instance had testified and had left the county, and, from the explanation attached to the bill of exceptions, would not have had an opportunity to explain. The assignment of error is therefore overruled. Weir v. McGee, 25 Tex. Supp. 20; Railway Company v. Durrett, 24 Tex. Civ. App. 103, 58 S. W. 187; Railway Company v. La Prelle, 22 Tex. Civ. App. 593, 55 S. W. 125.

The third assignment of error complains of the tenth paragraph of the charge to the jury as being upon the weight of the evidence, and in assuming negligence on the part of .appellant with reference to dipping, driving, and loading the cattle. It is our opinion that the charge merely presents, in an affirmative manner, the appellees’ defenses. The same charge, with certain features eliminated, to prevent confusion and misunderstanding on the part of the jury, was before this court on a former appeal. We have carefully examined the paragraph complained of, and are of opinion that appellant’s criticism is not well founded. The assignment of error is therefore overruled.

The fourth assignment of error complains of the eleventh paragraph of the charge to the jury as being upon the weight of the evidence, and that it prevents the jury from applying the doctrine of proximate cause, also that it conflicts with a former paragraph of the charge defining proximate cause, and also because it contravenes the law of concurring cause as applicable to the facts of the case. We have examined the court’s charge to the jury, and are of the opinion that it presents most favorably for appellant the vital issues made by the pleadings and the evidence.' We fail to find any conflict which would in any manner have possibly misled the jury, and we do not think it is upon the weight of the evidence. The assignment of error is therefore overruled.

The fifth assignment of error complains of the action of the trial court in giving the following special charge upon the request of appellees: “Sou are charged that a mere showing of del'ay in the movement of live stock is not sufficient to make the defendants liable therefor without a showing by the plaintiff that such delay is due to the negligence of the defendants.” Under this assignment it is urged by appellant that the charge is upon the weight of the evidence. We are of opinion that the charge, when read in connection with the general charge, is not subject to the criticism urged, and that the jury could not possibly have been misled thereby. The assignment is therefore overruled.

The sixth assignment of error complains of the action of the trial court in giving to the jury appellees’ special requested charge as follows: “You are charged that the defendant owed no duty to the plaintiff to deliver his cattle to him in good .condition, and would only be responsible’ for negligence in the handling of said cattle as defined.” It is urged that the charge is upon the weight of the evidence; that it placed undue emphasis upon the term “negligence,” and unduly limited the duty of defendants as common carriers. We are of opinion that the objections urged are not well taken. The pleadings and the evidence show that the cattle were shipped under written contract, were unloaded and dipped at Sweet-water, during which time the cattle were in the control and charge of the appellant, he haying waived any damage resulting from the handling and dipping during said time. It is further shown by the contract and the evidence that the owner accompanied the cattle under contract to look after them while they were being transported, and was in as favorable a position as were the carriers to know of any negligence or acts of negligence which would have resulted in any injury to the cattle while they were being transported. The assignment of error is therefore overruled.

Appellees object to the consideration of the seventh assignment of error, which complains of the action of the trial court in giving to the jury the seventh requested special charge, because the charge, as copied in the assignment, is different from that which appears in the record as having been given to the jury. The charge as same appears in the record is not subject to the criticism urged. If any error, however, by virtue of this charge, it appears to be one of omission and not of commission, and it was the appellant’s duty to have requested a charge which would have corrected the omission. The assignment of error is therefore overruled.

Appellees object to the consideration of the eighth assignment of error. The assignment complains of the action of the trial court in giving appellees’ requested special charge No. 12. There appears on this requested charge the following indorsement, signed by the trial judge: “Given, after the court had prepared and read to the jury its principal charge.” On appellees’ requested special charge No. 13, which also appears in the record, there is- indorsed and signed by the trial judge the following: “Refused after main charge prepared and read to the jury, and after special charge No. 12 had been requested and refused." It is readily seen, from the foregoing statement as to the condition of the record, that serious doubt exists as to whether either of the charges referred to was given. To say that No. 12 was given would be to ignore the solemn statement of the trial court as shown by the indorsement on No. 13 that No. 12 was refused. In other words, to give consideration of the assignment of error, we would be required to first determine whether charge No. 12 was in fact given to the jury. This would necessarily involve this court in the determination of a serious issue of fact upon a matter of direct and positive conflict, as shown by the two indorsements above indicated. The two in-dorsements were evidently made as a single transaction while in the trial of the same cause, pertaining to the charge to the jury, each of which, when weighed from the standpoint of determining as to whether charge No. 12 was given or refused, seems to be equally binding and of the same probative force. It is not incumbent upon this court to decide issues of fact, and we have grave doubts if the assignment can properly be considered in this state of the record. To resort to a process of construction or reasoning by which the court might possibly give consideration to the assignment of error based upon giving charge No. 12, or by assuming that charge No. 12 was in fact actually given to the jury, would not in any manner relieve the situation of the doubt as to whether or not, as an actual fact, charge No. 12 was given or refused; and, after resorting to the rules of construction, as same would apply perhaps to the legal effect of a written instrument, we would still be in doubt as to whether the trial court did or did not give to the jury charge No. 12. At best we could only enter the realm of speculation, or resdrt to fickle chance, which so often misleads. The conflicting indorsements were no doubt made through mistake, and it occurs to us that it' was the duty of the appellant to so guard the record as to avoid such mistakes. When mistakes are made, it is his duty, in proper time, to have the record so corrected as to make it speak the truth as to the proceeding upon the trial. However, it is the opinion of the court that, had charge No. 12 been given to the jury, when considered in connection with the main charge, it would present no reversible error.

Appellant’s ninth assignment of error, which complains of the action of the trial court in giving appellees’ requested charge No. 14, is overruled. The jury’s verdict being in favor of appellees renders any error by giving the charge harmless. The court, however, is of the opinion that the charge as given was not erroneous.

What we have said in disposing of the ninth assignment of error is equally applicable in making disposition of the tenth assignment of error.

Appellant’s eleventh assignment of error, which complains of the action of the trial court in Refusing to give to the jury appellant’s requested special charge No. 2, which reads as follows: “The damages, if any, need not become manifest on the line Qf the railway company causing’such damage, if any; it being sufficient if such damage was caused by the negligent act, if any, of such railway company”—is overruled. We are of the opinion that no reversible error was committed by the refusal to give the charge; in that the matter is fully covered by the main charge. Besides, the evidence is undisputed that the appellant accompanied the shipment of cattle and had ample opportunity to observe any acts of negligence on the part of the appellees, which caused or would cause any damage to said shipment, and no. evidence is called to our attention by which it is shown that there were any latent injuries to any of said cattle by which the charge became material as an issue in the case. 'The assignment Of error is therefore overruled.

This is the second appeal of the case. On the former appeal appellees were appellants, and. they urged in that appeal many objections to the charge of the court as then given. The appellee on the former appeal is now the appellant in this appeal. In the former appeal appellant defended the charge as given. The charges, for the most part, involved in this appeal are very much like the ones involved in the former appeal, with many of the objectionable features eliminated, as was required by the opinion of this court on the former appeal. We are of the opinion that no error has been shown whereby the cause should again be reversed and remanded for a new tria,l, and that the judgment should be affirmed; and it is so ordered.

Affirmed.

On Rehearing.

In the original opinion appears the following: “Other testimony in the record shows that the 160 head of cattle were mixed with the Humble shipment, and were fed, watered, pastured, and dipped alike, and were mixed indiscriminately in the same cars when shipped to Monahans, without injury, which would indicate that they were stronger cattle.” Our attention is directed to the fact that the record fails to disclose that any witness testified that the 160 head arrived in Monahans “without injury.” We, therefore, make the correction to conform with the record. The statement otherwise is in conformity with the record, and shall stand. The correction, as made, does not change our opinion, or the views therein expressed in overruling appellant’s first assignment of error.

The motion for rehearing is overruled.


source: Caselaw Access Project

author: RASBURY, J.

license: Public Domain

text:
    HARLE et al. v. HARLE.
    (No. 7034.)
    (Court of Civil Appeals of Texas. Dallas.
    April 11, 1914.
    Rehearings Denied May 2, 1914.)
    1. Adverse Possession (§ 115) — Sufficiency of Evidence.
    In trespass to try title in which defendant claimed by adverse possession, evidence held at most to raise the issue of a conditional parol gift to such defendant from his father, and mot to raise the issue of adverse possession by defendant.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 314, 691-701; Dee. Dig. § 115.]
    2. Adverse Possession (§ 60) — Hostile Entry.
    One who enters upon land which he is entitled to acquire conditionally in acknowledgment of the superior right of another cannot claim by adverse possession, unless be meanwhile obtains a superior outstanding title, or repudiates the title under which he entered and gives its owner notice that he is claiming adversely to him.
    [Ed. Note. — -Por other cases, see Adverse Possession, Cent. Dig. §§ 282-si12, 323, 328; Dec. Dig. § 60.]
    3. Homestead (§ 119) — Conveyance by Husband-Consent oe Wife.
    In view of Const, art. 16, § 50, providing: that a married man shall not sell the homestead without his wife’s consent, given in the manner-prescribed by law, title to the homestead could only pass by deed acknowledged by the wife apart from her husband; Rev. St. 1911, art. 1115, so requiring.
    [Ed. Note. — Por other cases, see Homestead. Cent. Dig. §§ 210-214; Dec. Dig. § 119.]
    4. Adoption (§ 23) — Inheritance through Adopted Children — Descendants of Adopted Child — “Descendant.”
    Rev. St. .1911, art. 2469, provides that in the event of either spouse dying intestate with children surviving, the community property shall go, one-half to the survivor and one-half to such child or children, or their descendants. Rev. SI. 1911, art. 1, permits any person wishing to-adopt another as his “legal heir” to do so by filing a statement in the manner provided, and article 2 provides that such statement, signed, acknowledged, and recorded, shall entitle “the party so adopted to all the rights and privileges, both in law and equity, of a legal heir of the party so adopting him,” and article 5 provides that the child or children so adopted shall have the same rights as against the person or persons adopting the child for support and maintenance, and for proper humane treatment, as a child has by law against lawful parents. Held, that the children of an adopted child inherit in the same manner as the descendants of a natural child, so that an adopted child’s children become “descendants” of a child of intestate so as to take under article 2469.
    [Ed. Note. — For other cases, see Adoption, Cent. Dig. § 42; Dec. Dig. § 23.

    For other definitions, see Words and Phrases, vol. 3, pp. 2014-2017; vol. 8, p. 7635.]
    5. Adoption (§ 1) — At Common Law.
    Adoption was unknown at common law. [Ed. Note. — For other cases, see Adoption, Cent. Dig. § 15; Dec. Dig. § 1.]
    6. Adoption (§ 3) — Construction—Ordinary Meaning of Language.
    The legislative intention in enacting the adoption statutes should be determined by giving to the words therein their ordinary meaning.
    [Ed. Note. — For other cases, see Adoption, Cent. Dig. §§ 1, 2; Dec. Dig. § 3.]
    7. Adoption (§ 3) — Effect of Statutes.
    Since adoption did not exist at common law, the adoption statutes (Rev. St. 1911, arts. 1-8), ingrafted upon the law of the state the provisions of the civil law on the subject, as well as its construction of the law thereon.
    [Ed. Note. — For other cases, see Adoption, Cent. Dig. §§ 1, 2; Dec. Dig. § 3.]
    8. Partition (§ 5) — Act of Parties.
    Where land was deeded jointly to two persons upon consideration that each would pay his proportionate part of the purchase price, the subsequent division of the land by such grantees in that proportion, each agreeing to pay his part of the price, which was done, was a valid partition, binding upon the parties and their heirs.
    [Ed. Note. — For other cases, see Partition, Cent. Dig. §§ 13-17; Dec. Dig. § 5.]
    Error to District Court, Navarro County; H. B. Daviss, Judge.
    Trespass to try title by Nathan Harle against Bruff Harle, Freeman Slaughter, and John Harle, in which Wash McGriff, Nathan Slaughter, and others intervened. Judgment for Nathan Slaughter and others, interveners, for John Harle, and for plaintiff, for certain amounts of land, and Bruff Harle and others bring error.
    Affirmed in part, and reversed and rendered in part.
    W. W. Ballew, of Corsicana, for plaintiffs in error. McClellan & Prince and H. S. Melear, all of Corsicana, for defendant in error.

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

   RASBURY, J.

Nathan Harle sued Freeman Slaughter, John Harle, and Bruff Harle in trespass to try title to recover 160 acres of land in Navarro county. Freeman Slaughter by his answer claimed 40 acres of the tract, alleging that that amount had been set aside to him by agreement at the time the land was acquired jointly by him and Nathan Harle, and that he paid for that part of the tract and Harle the balance. John Harle by his answers claimed 60 acres of the land under deed from Nathan Harle and wife, and disclaimed as to the balance. Bruff Harle by his answer claimed 31.5 acres of the land by parol gift from Nathan Harle and wife, his father and stepmother, into possession of which he immediately entered, and upon which he had made valuable improvements, and of which he had been in actual, adverse, and peaceable possession for more than 10 years, exercising exclusive ownership and possession thereof and paying taxes thereon. He also claimed the land as an advancement by his father and stepmother in consideration of his having contributed largely to their support and to the purchase money of the land. He also attacked the deed from Nathan Harle to John Harle, which included the land claimed by him, on the ground that same had been obtained in fraud and by undue influence exercised by John Harle over his father and stepmother. Wash Mc-Griff, the surviving husband, and several children of Mary Ann Harle, the adopted daughter of Gracie Ann Harle, deceased wife of Nathan Harle, intervened in the suit, alleging the death of Gracie Ann Harle prior to the institution of the suit, and that by reason thereof they were entitled to recover the entire community interest of Gracie Ann Harle in said land. Nathan Slaughter and others intervened in the suit alleging they were the children of Freeman and Amanda Slaughter, their mother being formerly Amanda Harle, a daughter of Nathan Harle by his first wife, and claimed the 40 acres of Freeman Slaughter, referred to in his pleading, and claimed also an additional 31.5 acres set aside to them under an agreement between their father, Freeman Slaughter, and their grandfather, Nathan Harle, and his wife.

The several interests in the land being urged as we have briefly but substantially stated, the testimony was developed and supports, in substance, the following conclusions: On March 22, 1879, A. G. Sloan and wife conveyed jointly to Nathan Harle and Freeman Slaughter the 160 acres of land involved in this suit. After Harle and Slaughter had gone into possession of the land, it was agreed that Harle should have and pay for three-fourths thereof and Slaughter for one-fourth, and that the land should be partitioned in that proportion. Pursuant to this agreement the land was partitioned, 40 acres being set off to Slaughter and 120 acres to Harle. Both Harle and Slaughter were at the time married, and both of them, in accordance with the agreement with their wives, went into possession of the lands agreed upon, Harle paying three-fourths and Slaughter one-fourth of the consideration recited in the joint deed. Harle and wife went upon and occupied the 120 acres as their homestead, and were occupying same as their homestead at the time the rights of the various parties to portions thereof are claimed to have accrued. In like manner did Freeman Slaughter and his wife occupy the 40 acres until June 21, 1894, when Slaughter’s wife divorced him, and the possession and use of the land was awarded her along with the custody of the children. Subsequently she died, and the 40 acres were reoccupied by Slaughter. Nathan Harle was married twice. By his first wife he had three children, Bruff, John, and Amanda. By the second wife he had no children. The 160 acres were acquired by him and Freeman Slaughter after he married his second wife, Gracie Ann. His daughter, Amanda, married Freeman Slaughter, but died prior to the institution of this suit, leaving surviving her her husband, Freeman Slaughter, and several children, who are parties to the suit and designated as the Slaughter heirs. After the purchase of the land Nathan Harle’s wife adopted Mary Ann Richardson, known thereafter as Mary Ann Harle, complying in that respect with the provisions of the adoption statutes. The adopted child married Wash McGriff, whom she bore three children, who are parties to this suit, being designated as the MeGriffs. Nathan Harle’s wife was dead at the time this suit was filed, as was also her adopted daughter, Gracie Ann Harle Mc-Griff, the latter having died before her adoptive mother. The foregoing facts are undisputed.

There was testimony by Bruff Harle and other witnesses tending to show that in the early part of 1898 T. H. Bonner, at the request of Nathan Harle, surveyed the 120 acres of land belonging to him, setting same off in four approximately equal tracts, he and his wife agreeing at the time that one tract should go to Bruff Harle, one to John Harle, the other two tracts to go, one to the children of Mary Ann Harle McGriff, the other to Amanda Harle Slaughter’s children, upon the death of Nathan and Gracie Ann Harle, Bruff Harle’s testimony in relation to his rights at that time being, in effect, that his father pointed out the land, saying for him to take it and use it, and if what was left was not sufficient to afford a living for Nathan and his wife, they would call on the part apportioned to Bruit for that purpose, and to the arrangement Bruff assented. The testimony of these witnesses further tended to show that Bruff Harle was living on the land prior to the survey under an agreement that he should have the land as a gift, in consideration of contributing to the support and maintenance of Nathan Harle and his wife, and had ever since that time been in adverse possession of the land, cultivating it and paying taxes thereon. . Nathan Harle denied the setting aside of the land, his explanation being that the land surveyed at a time when he contemplated making a will disposing of the land, and denied in toto the claim of Bruff Harle that the land had been given him as an advancement, etc., and claimed that he never surrendered control or possession of the land. We conclude as a fact that Nathan Harle did not surrender control or possession of the land. He further testified, in reference to Bruff’s claim of advancement and gift, that Bruff Harle not only had not contributed to his support, but when called upon to do so had refused specifically to do so. In June, 1909, after the survey of the land, and after Bruff Harle claims he went in possession of the land under' an agreement to contribute to the support and maintenance of his father and stepmother, the latter two conveyed 60 acres of the 120 to their son, John Harle, which included the land claimed by Bruff Harle.

At the conclusion of the evidence the court instructed a verdict for Freeman Slaughter and his children against all other parties to the suit for the 40 acres claimed by Freeman Slaughter, to be used by him during his lifetime against any claims of his children; for John Harle for the 60 acres deeded to him by his father and stepmother against all parties to the suit, and for Nathan Harle for the remaining 60 acres against all the other parties to said suit. Upon the verdict so directed judgment was entered accordingly, from which this appeal is taken by Bruff Harle, the McGriffs, and the Slaughters. No appeal was taken by Freeman Slaughter. No attack is made on appeal against the judgment in favor of John Harle, who recovered the 60 acres acquired by the deed from his parents.

It is first urged by counsel for Bruff Harle that the court erred in withdrawing the case from the jury and instructing verdict against him, for the reason that the testimony without dispute showed that he had been in exclusive, adverse, and .peaceable possession of the land for more than 12 years prior to the institution of the suit, and for that reason entitled to a judgment therefor. We conclude, as between Bruff Harle and Nathan Harle, his father, that the testimony at most raises the issue of a conditional parol gift. When he entered upon the land, it was by his own admissions an entry under executory contract, since the effect of the evidence under one theory is to establish a' holding under promise to contribute to the support of his parents, and under the other a holding subordinate to Harle’s right to claim the land if he should need it. Accordingly, the action of the district judge in refusing to submit the questions of fact.arising under the statute of limitation as pleaded by Bruff Harle was correct, since one who enters upon lands which he is entitled to acquire conditionally in acknowledgment of the superior right or title thereto of another cannot urge possession so secured, unless he has in the meanwhile come into a superior outstanding title, under the statutes of limitation, unless and until he shows a repudiation of the title under which he entered and puts the owner of such title upon notice that he is claiming the land adversely thereto. Bombarger v. Morrow, 61 Tex. 417; Flanagan v. Pearson, 61 Tex. 302; O’Connor v. Dykes, 29 S. W. 920; Robinson v. Bazoon, 79 Tex. 524, 15 S. W. 585; Smith v. Lee, 82 Tex. 124, 17 S. W. 598; Johnson v. Lockhart, 16 Tex. Civ. App. 32, 40 S. W. 640. While the pleading of Bruff Harle asserts a completed parol gift, and while the testimony raised the issue of a conditional parol gift, as we have said, neither the pleading nor proof shows a repudiation of the contract under which he entered the lands, and hence the rule stated applies in all respects, and it became immaterial on the question of limitation what the jury may have considered the facts to be concerning the period of time Bruff Harle had been in possession of the land, since his possession was not in law adverse.

It is next urged on behalf of Bruff Harle, aside from the contention that he acquired the land by limitation, that the court should have submitted to the jury the issue of a completed unconditional parol gift of the lands, since that issue was raised by the evidence. Conceding for the purpose of determining the issue presented that the evidence raised the issue, although we think it did not, we conclude nevertheless that the court correctly withdrew the case from the jury for the reason that it appears without contradiction that the lands alleged to have been donated were at the time the homestead in fact of Nathan Harle and his wife, Gracie Ann, and, known to be such by Bruff Harle. Being the homestead, the lands could not be conveyed by parol gift, since title to the homestead can only be passed by deed acknowledged by the wife separately and apart from her husband, in the manner provided by the Constitution and statutes of this state and the construction placed thereon by our appellate courts. Const, art. 16, § 50; Rev. Stats. 1911, art. 1115; Stallings v. Hallam, 89 Tex. 431, 35 S. W. 2; Robert v. Ezell, 11 Tex. Civ. App. 176, 32 S. W. 362; Morris v. Wells, 27 Tex. Civ. App. 363, 66 S. W. 248.

It is next urged in behalf of the Mc-Griffs that the court also erred in directing a verdict adverse to them., As we have said, the McGriffs were .the children of Mary Ann McGriff, the adopted child of 'Grade Ann Harle, who had a community interest of one-half in the land in dispute, and who died intestate, and childless, never having borne children, and having survived her adopted child. We conclude the court did err in the respect complained of, because we are of opinion that under our statutes regulating adoption and those regulating the descent of community property, and the construction that ought to be placed thereon, the children of an adopted child inherit in the same manner that the descendants of a natural child inherit. Article 2469, R. S. 1911, provides that in event of the death of either spouse intestate, with children surviving, the community property shall go, one-half to the survivor, and one-half to such child or children or their descendants. The question at once arises whether an adopted child, in contemplation of the statutes of descent and distribution and those of adoption, becomes in contemplation of law a natural child, so that such adopted child’s children become “descendants” of a child of the intestate, and are permittted to' inherit under the article cited instead of their deceased parent. Counsel have cited no case in point decided by the appellate courts of this state, nor have we. been able to find one. Practically no help from the adoption statute can be had, since it provides that one may, on compliance with the formalities therein enumerated, adopt a “legal heir,” and that the person so adopted shall have “all the rights and privileges, both in law and equity, of a legal heir of the party so adopting him,” save that such adopted child may inherit only one-fourth of the estate of the adopting person, if such adopting person at the time or thereafter have “a child begotten in lawful wedlock.” Articles 1, 2, R. S. 1911.

Reference to the rules in force concerning adoption prior to the adoption of the common law in this state affords no assist-anee in the interpretation of the statute, since the present statute and the one by authority of which Mary Ann McGriff was adopted was enacted after the act by which the common law of England became the rule of decision in this state, when not “inconsistent” with the Constitution and laws of this state. Article 6492, R. S. 1911. Besides, adoption was unknown to the common law; and, when the Legislature passed the present statute conferring the right on any person to adopt an “heir,” a common-law rule of decision or interpretation, was impossible,' since there was no such rule at common law, and had there been one, it would not have been applicable in toto if “inconsistent” with the statutes of adoption passed by the Legislature. So it results, it occurs to us, that in construing the statute we shall resort to the ordinary principles of construction in determining the effect of the statute. In many of the states both the statute authorizing adoption and the statute of descent control and restrict the rights of those adopted, but, subject to such modifications, there is singular uniformity in the enunciation of the general rules by all the courts. In reference to the construction to be placed on such statutes, an accepted authority says that “the authorities unite in affirming that for all purposes of inheritance from the adoptive parent the adopted child becomes and is the lawful child of such adoptive parent save in so far as the statute authorizing the adoption may otherwise provide. Such inheritable right •does not conflict with the statute of descents, for the statute in regard to adoption points out who are to be considered children within the meaning of the statute of descents, nor with the right of the adoptive parent to dispose of his property by will. However, as against an adopted child, the statute should be strictly construed, because it is in derogation of the general law of inheritance, which is founded on natural relationship, and is a rule of succession, according to nature, which has prevailed from time immemorial.” 1 Oyc. 931. We assume that the strict construction contended for by the writer just quoted has reference of course to a compliance with the formalities prescribed by the statute, and not in reference to the rights of the adopted person when legally adopted. For in construing the rights of the child when formally adopted, the intention of the Legislature in the enactment of the statute should be determined by importing to the words therein their ordinary signification and common meaning.

The case of Eckford v. Knox, 67 Tex. 200, 2 S. W. 372, is the only case that has, to any considerable extent, construed the adoption statutes, and in that case the point at issue here was not involved. However, in our opinion, it is persuasive of our view that, “if an adopted child dies during the life of its adopting parent, leaving children, such children are for most, if not for all, purposes regarded as natural grandchildren of the adopting parent, and entitled to represent their parent and to receive from the estate of his adopting parent what he would have been entitled to receive had he lived until áfter such parentis death.” 1 R. O. L. 614. In Eckford v. Knox, supra, it is said, in effect, that the designation of the adopted child as “legal heir” has no significance since, strictly speaking, there is no such thing as the heir of a living person, and that the use of the term, “legal heir,” means simply that if the person so designated is living at the death of the adopting party he shall become entitled to an interest in all his property of which he shall die intestate. Hence no restricted meaning may be placed upon the words legal heir. On the contrary, the words must be held to mean that which will most likely promote the evident purpose of the statute. It is also further said in that case that an adopted heir may not be postponed, in bis right of inheritance to others who are not themselves heirs, and thát he can be disinherited only in such manner as any lawfully begotten heir may be, and that he stands as to his right of inheritance on the same plane with children born in lawful wedlock, save as to the restriction in the amount he may inherit, and that such views derive strength from the general rules governing adoption wherever it prevails. It is further said in that case that our statute imports the civil law of adoption into our jurisprudence with modifications. This we think may not be intelligently refuted, since the right of adoption did not exist at common law, and the result of the passage of the statute was to ingraft upon our jurisprudence that feature of the civil law and the construction placed upon it by the civilians. And while not passing upon the issue involved in the instant case, Mr. Chief Justice Willie, in the opinion, in order to sustain the right of inheritance of a living, adopted child, as a natural child, approvingly refers to the rule.of the civilians that the one adopted stood in the relation of child to his adopter, “and his children became the grandchildren of such person.” The culminating conclusion of law just quoted from the Eckford-Knox Case seems to us conclusive of the issue. The rule stated seems to be the one in force in most of the states of the Union.

A case much in point with the instant case is Power et al. v. Hafley, 85 Ky. 671, 4 S. W. 683. Kentucky, at the time Hafiey desired to adopt one Sylvania Floyd, had no statute authorizing the adoption of a person, and applied to the Legislature for authority to do so. The Legislature passed an act which, in effect, permitted Hafiey to adopt Sylvania “as his legal heir,” and permitting her to take and hold the estate of Hafiey “by descent * * * in as full and complete a manner as if she was his lawful child.” By way of comparison with the quoted act of the Kentucky Legislature, oúr statutes provide that one adopted under its terms shall be entitled “to all the rights and privileges, both in law and equity, of a legal heir of the party so adopting him,” and by subsequent article 5 that he shall have the same rights against the person adopting him for support and maintenance and proper and humane treatment “as a child has by law against lawful parents.” Thus it will be seen there is no substantial difference in the enactments. Sylvania died before her adoptive father, leaving children, and after the death of the adoptive father the contention was that her children could not inherit through their mother, since Sylvania’s right to inherit was personal and died with her. • In disposing of the contention the court said: “The common law made no provision for adopting children. Hence we get no light from that law to guide •us in the present investigation. Most of the states of the Union have within the last few years enacted general laws providing for the adoption of children, and making them the legal heirs of the adopting parents through the courts. Of course, the laws of these states are not uniform in substance; the laws of each more or less limit and restrict the legal status of the adopting parent and the adopted child; and, while the reported adjudications of these states construing the adopting statutes are sparse, yet they nearly all agree in fixing the legal - status of the adopted child as follows: That it is the event of adoption that fixes, under the law authorizing the adoption, the legal status of the adopted child; and the child, by the event of adoption, becomes the legal child of the adopting parents, and stands, as to the property of the adopting parent, in the same light as a child born in lawful wedlock, save in so far as the exceptions in the statute authorizing the adoption declare otherwise. And, when the statute authorizes a full and complete adoption, the child adopted thereunder acquires all of the legal rights and capacity, including that of inheritance of a natural child, and is under the same duties. See Humphries v. Davis, 100 Ind. 280 [50 Am. Rep. 788]; Wagner v. Varner, 50 Iowa, 532; Barnes v. Allen, 25 Ind. 222; Burrage v. Briggs, 120 Mass. 103; Ross v. Ross, 129 Mass. 243 [37 Am. Rep. 321]. By the request of Frederick Hafiey, the Legislature, by the act supra, made Sylvania his legal heir, and invested her with as full capacity to take and hold his estate by descent as if she was his natural child. Thus was her legal status fixed by a law' operating directly upon her and Hafiey, and which contained no restrictions or limitations whatever. She was made a full legal heir, and was put precisely upon the same footing, so far p.s taking and holding Hailey’s property by descent was concerned, of á natural child. So it would seem to follow as a logical sequence that the children of Sylvania, she having died before I-Iafley, take, under our laws of descent, as her direct representatives. As before stated, the common law made no provision in reference to adopting children; but the civil law made ample provision in that regard; and, presuming that the Legislature, in passing the act supra, and subsequently passing a general law upon the same subject, had in view the principles of the civil law, we have therefore deemed it proper to consult the principles of that law in arriving at the construction we have given said act. By that law (the civil) the adopted child was ‘assimilated in many points to a son born in lawful matrimony.’ The adopted child retained all of the family rights resulting from its birth, and there was secured to it all of the family rights procured by the adoption. See Sander’s. Justinian, 103, 105, 107. Also, in the ease of Vidal v. Commagere, 13 La. Ann. 519, it is said that by the civil law the effect of adoption was such ‘that the person adopted stood not only himself in relation of child to him adopting, but his children became the grandchildren of such person.’ So, taking the logical sequence of the language of the act supra, aided, as it is, by the principles •of the civil law, the conclusion is inevitable that the appellants are the legal grandchildren of Frederick Hafley, and as such are entitled to share in the distribution of his estate under our laws of descent.”

We concur in the conclusion reached in the case from which we .have quoted that it Is the act of adoption that fixes the status of the adopted child, and that the effect of adoption under our statute is to constitute the one adopted the child of the adopting •person in the same manner, as said in Eck-ford v. Knox, supra, “as if she had been his •child bom in lawful wedlock, subject only to the limitations contained in the proviso to article 2.” Then if the act of adoption fixed the status of the adopted child as one “born in lawful wedlock,” it would follow as a •consequence that the children of such child would, as her descendants, be entitled to receive, from the estate of the adoptive parent dying intestate, in the same manner and to the same extent the adopted child would have taken had she survived the adoptive ■parent.

Nor do we think the construction we have placed upon the statutes of adoption is, as argued, in conflict with article 2469, R. S. 1911, which directs that upon dissolution of the marriage relation by death, one-half of the community property shall descend to the child or children, if living, of the deceased intestate spouse or their descendants. “Child” has reference as much to adopted child as to natural child. If only natural child was meant, the adoption of an heir would be futile, since the effect would be to destroy the adoption statutes in toto, and because, under such construction it could be said that, the descent of community property being confined to natural children, it could not be diverted by the provisions of the •adoption statutes, even during the life of the •one adopted. The fact that both acts are in -existence emphasizes the conclusion that it was intended that an adopted person should be considered as a natural child, and inherit as such as restricted by the act. It is true that it was held in Burgess v. Hargrove, 64 Tex. 110, in construing the old provision directing the descent of the community property, that “child” did not include grandchild. It was to meet such construction that the act was subsequently amended as it now reads -so as to include child or children or their •descendants. But it cannot be deduced from the holding that “child” does not include grandchild that it also does not include adopted child. Further, we think the holding in that case is beside the issue involved here, and throws no light on the question, and decides only that the first degree of consanguinity does not include, as matter of law, the second any more than it does the third.

In view of what we have said, we conclude that when Grade Ann Harle adopted Mary Ann as provided by law, she became, for all purposes of inheritance, a natural child, and that her descendants were entitled to inherit the entire interest of Grade Ann in the community property of Gracie Ann and Nathan Harle, since Grade Ann had no child when she adopted Mary Ann, nor was such child born prior to her death.

It is next urged in behalf of the Slaughter children that the court erred in directing verdict against them. As we have recited, these parties were the children of Amanda Harle Slaughter, who was Nathan Harle’s daughter by his first wife. Nathan Harle acquired the land after Amanda Slaughter’s mother died, and after he married his second wife, -and Amanda’s children therefore have no inheritable interest in the land only through their grandfather, Nathan Harle. The error urged, however, arises upon the holding by the district judge that there was a lawful partition and division between Freeman Slaughter and Nathan Harle of the land deeded to them jointly. The land was as matter of fact deeded to Harle and Freeman Slaughter jointly, as we have shown at another place, but it was not disputed by either; on the contrary, it was stated by both to be a fact that there was a division and partition of the land, three-fourths being set off to Harle, and one-fourth to Slaughter, each agreeing to pay for same in that proportion, which was done. Each went into actual possession of the portion awarded him ■ with his family, and have since occupied same. Such a partition and division of lands • deeded jointly to two grantees, upon consideration that each will pay that proportion of the purchase money that his part of the land bears thereto, is a valid and effective partition, and may not be subsequently attacked by his children, if such division was acted upon, and the purchase price agreed on paid by both parties and possession of the respective tracts of land so set off taken by each, as was done in the instant case. Cagle v. Tucker, 14 Tex. Civ. App. 316, 37 S. W. 180. Hence any issue dependent for its force on the invalidity of such division and partition becomes immaterial under our holding that the partition was effective, and a discussion thereof unnecessary.

With our holding that the evidence without dispute establishes a division and partition of the 160 acres between Freeman Slaughter and Nathan Harle, it becomes unnecessary to discuss seriatim the several remaining assignments of the Slaughters, since the same raise, issues similar to those raised by Bruff Harle, and which we have decided adversely to the contention of the Slaughters.

The Judgment of the trial court is affirmed in all respects, save as to the MeGriffs. As to them the judgment .of the lower court is reversed, and" judgment here, rendered for said heirs, directing that said heirs recover of Nathan Harle an undivided one-half interest in the 60 acres of land awarded to said Nathan Piarle by the court below, subject to the right of said Harle to possession and occupancy of said land as a homestead during his life time.

Affirmed in part and reversed and rendered in part.


author: TALBOT, J.

text:
    TEXAS POWER & LIGHT CO. v. BURGER.
    (No. 7115.)
    (Court of Civil Appeals of Texas. Dallas.
    April 11, 1914.
    Rehearing Denied May 9, 1914.)
    1. Master and Servant (§ 278) — Injury to Sebvant — Negligence—Evidence.
    In an action for injuries to an employé while assisting in setting an electric light pole, evidence held to support a finding of actionable negligence for the failure of the employer to furnish reasonably safe appliances and a sufficient number of competent employés to do the work.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 954, 956-958, 960-969, 971, 972, 977; Dec. Dig. § 278.]
    2. Masteb and Sebvant (§ 296) — Injury to Servant — Contributory Negligence.
    Where an employé, acting under orders of the vice principal, who directed the work, neither did nor omitted to do anything which could contribute to an accident resulting in injury to him, the issue of contributory negligence was not in the case.
    [Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. §§ 1180-1194; Dec. Dig. 296.]
    3. Master and Servant (§ 185) — Injury to Servano^-Negligence oe Fellow Servant.
    Where plaintiff and his coemployés worked under the direct orders of the foreman and the coemployés did what the foreman directed them to do, an injury sustained by plaintiff in consequence thereof was caused by an act of the employer, who could not escape liability on the ground that the negligence was that of a fellow servant.
    [Ed. Note. — For other cases, see Master and Servant, Gent. .Dig. §§ 385-421; Dec. Dig. § 185.]
    4. Trial (§ 145)1 — Issues—Withdrawal.
    The failure of the court to submit to the jury an issue raised by the pleadings amounts to a withdrawal thereof.
    [Ed. Note. — For other cases, see Trial,-Gent. Dig. §§ 328, 341; Dec. Dig. § 145.] ■
    5. Master and Servant (§ 298) — Injury to Servant — Evidence.
    An employé, sustaining a personal injury negligently inflicted, cannot recover for inju-¡ ries sustained in a prior accident; and, unless the jury can determine what portion of the injuries were occasioned by the negligence complained óf, and what portion was occasioned by the prior accident, there can be no recovery.
    [Ed. Noté. — For other cases, see Master and .Servant, Dec. Dig. § 298.]
    6. Master and Servant (§ 293) — Injury to Servant — Negligence—Instructions.
    Where, in an action for injuries to plaintiff while assisting his coemployés in setting an electric light pole, the court made the test of actionable negligence to depend on whether the employer had exercised reasonable care in selecting the tools and instrumentalities, and not whether he should have selected and used another system of placing the pole in position, refusal to charge that the jury could not consider, as a ground of negligence, the fact that another system was not used was not erroneous.
    [Ed. Note. — For other eases, see Master and' Servant, Cent. Dig. §§ 1148-1156, 1158-1160;. Dec. Dig. § 293.]
    7. Master and Servant (§§ 101, 102) — Injury to Servant — Defective Appliances.
    The right of an employer to conduct his own business in his own way is limited by his-duty to exercise reasonable care to furnish reasonably safe appliances and place in which to-work.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 135, 171, 174, 178-184,. 192; Dec. Dig. §§ 101, 102.]
    8. Trial (§ '.105)— Instructions— Submission of Incompetent Testimony.
    Where inadmissible testimony was received without objection, and there was no motion to strike it out, refusal to charge that the jury should not consider the testimony was not erroneous.
    [Ed. Note. — For other cases, see Trial, Gent. Dig. §§ 260-266; Dec. Dig. § 105.]
    9. Appeal and ■ Error (§ 690) — Record-Matters to be Shown — Materiality of-Excluded Evidence.
    Where, in an action for personal injuries, in which it was in issue whether plaintiff had" fully recovered from a prior accident, and evidence of statements of physicians advising an-operation was excluded, the record on appeal does not disclose whether the advice was based on necessity created by the prior injury or by the injury suéd for, the materiality of the evidence not being shown, its admissibility cannot be decided.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2897-2899, 2902-2904, 2906, 2908; Dec. Dig. § 690.]
    10. Evidence (§ 317) — Hearsay Evidence.
    The testimony of one as to what physicians had stated to him or in his presence as-to the advisability of an operation on him was-inadmissible as hearsay.
    [Ed. Note. — For other cases, see Evidence,. Gent. Dig. §§ 1174-1192; Dec. Dig. § 317.]
    Appeal from District Court, Hill County; Horton B. Porter, Judge.
    Action by G. O. Burger against the Texas. Power & Light Company. From a judgment for.plaintiff, defendant appeals.
    Affirmed.
    Harry P. Lawther, of Dallas, and Collins & Cummings, of Hillsboro, for appellant. Wear & Frazier, of Hillsboro, for appellee.

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

   TALBOT, J.

On July 27, 1912, while apellee and others as employés of appellant, were engaged in lifting and setting an electric light pole in the city of Hillsboro, Tex., appellee was seriously injured. The work was done with the assistance of pike poles,., and what was called a “crutch” or “jenny.” The pike poles were about 2 inches in diameter and about 12 or 14 feet in length. In one end of them there was fitted a sharp-iron spike. When the pole was raised to-about the height of the men’s heads, or a little higher, the -men using the pike poles struck the iron spikes into the electric light pole, and, grasping the pike pole with their hands, pushed said light pole upward. As the electric light pole was thus being raised, the man with the jenny would slide it down so that the pole at intervals, could rest upon it, and the men engaged in raising it with the pike poles could rest. The crutch or jenny was principally of wood constructed with a cross at the top. The crotch of the cross was lined with an iron band in the shape of a half moon or crescent. Sharp teeth protrude from the bottom, and from the upper end of the cross. When the pole being raised fits into the crotch of the jenny, the sharp teeth thereof stick into the wood and keep the pole from slipping or turning. On the occasion in question, there were four men using pike poles, one to guide and place the jenny, and one who stood at the hole to keep a board in place, which prevented the butt end of the electric light pole from slipping past the hole, and which caused it to slide into the hole when raised to a sufficient height. The pole being raised when appellee was hurt was the largest and heaviest pole that he was ever called upon to assist in raising. He had been in the employ of the appellant for some time before this, but the poles Im had theretofore been required to aid in raising were smaller and lighter poles, probably not over 25 or 30 feet long. At the time appellee was injured Hall Calhoun, appellant’s foreman, who had authority to employ and discharge men, was present, and controlled and directed appellee and the other employes in the work they were then doing. The jenny furnished by appellant and being used in raising the pole when ap-pellee was injured was too small. The pole would not fit down into the crotch of the cross, so as to be caught and held by the teeth in the bottom thereof, and hence the cross and the teeth could not perform the functions for which they were created. The evidence also warrants the conclusion that one of the pike poles, but not the one being used by appellee, was equipped with a loose pike or spike, which, when the man handling it went to change his hold and shift it to another place, would remain sticking in the pole, and would have to be shaken out. This caused delay, and kept the strain on the ap-pellee and other men an undue length of time. In addition to this, one of the men using a pike pole had sore hands, each of them being blistered, which was known to appel-' lant’s foreman, Calhoun, before appellee was hurt, but unknown to appellee until after-wards. When the pole had been raised to an angle of about 45 degrees and just ready for the last push upwards by which it would 'feo down into the hole, it twisted and swerved, and an undue amount of its weight was thrown on appellee, causing him to be injured in part at least as alleged ,in his petition. Appellee had received an injury some years before this, from which he suffered very much, as he has from the injury complained of in this suit. He had, however, at the time of the present injury, seemingly recovered from his former injury. He had been doing for a long time, intervening between the first and second injury, the hardest and heaviest kind of work, requiring great lifting and straining, without complaint, and was before the injury here complained of, far above men of average strength. The grounds of negligence alleged are: (1) Failure of appellant to furnish appellee a reasonably safe place to work; (2) failure to furnish reasonably safe tools and implements with which to perform the work being done when appellee was injured; (3) in requiring and directing appellee to raise the electric light pole by the means employed; (4) in not furnishing a sufficient number of competent men to perform the work of raising the pole by the means and manner required with safety; (5) that one of appellee’s colaborers had sore hands, and was not, by reason thereof, physically fit to give proper assistance in raising the pole. The defenses pleaded are: (1) General and special demurrers; (2) general denial; (3) negligence of fellow servant; (4) that at the time of the alleged accident, on July 27, 1912, the plaintiff was not physically sound, but, on the contrary, was a cripple, having long prior thereto, to wit, on the 17th day of December, 1909, received serious and permanent injuries to his spine and hip, resulting in a curvature of his spine, severe pains and convulsions, and paralysis of his left leg, etc., which were the same identical injuries of which the plaintiff now complained, and which were due to the injury received in December, 1909, and not due to any fault or negligence of said defendant on the occasion in question; (5) contributory negligence; (6) assumed risk; (7) that the injury, if any, received by the plaintiff July 27, 1912, was the result of an accident. A trial by jury resulted in a verdict and judgment in favor of the appellee for the sum of $3,000, and appellant appealed.

At the threshold of this appeal we are confronted with a motion made by appellee to strike out certain portions of appellant’s brief, because the same are not in compliance with the rules. This motion, especially -for the reason that we have concluded the case ought to be affirmed, will be overruled.'

Appellant’s assignments of error from the first to the fifth, inclusive, complain respectively of the court’s refusal to peremptorily instruct the jury to return a verdict in its favor; in charging the jury that it was appellant’s duty to exercise ordinary care to furnish, while appellee was engaged in the work he was doing when hurt, reasonably safe tools and implements with which to perform that work; and in submitting to the jury as grounds of negligence upon which appellee might recover: (1) The failure of appellant to furnish reasonably safe pike poles and raising erutch or jenny with which to perform the work in which appellee was engaged when injured; (2) the failure of appellant to exercise ordinary care to furnish appellee with assistants of sufficient number and competency to do the work he was doing when hurt with reasonable safety to himself; and (3) the direction of appellee and his colaborers by J. H. Calhoun, appellant’s vice principal, to raise and place in position the electric light pole as alleged in appellee’s petition, in the manner in which it was raised. The proposition urged under these assignments, aside from a number of abstract propositions of law which we deem it unnecessary to state, is to the effect that the evidence fails to show that the injury to ap-pellee was directly • and proximately caused, either, by the defective pike pole or jenny, the failure of the appellant to furnish the plaintiff assistants of sufficient number and competency to do the work assigned him, or by the appellant’s negligent manner of raising the electric light pole. We think there was no error in the submission of these issues. The evidence was sufficient to warrant a finding that either act of commission or omission referred to in the court’s charge, and upon the existence of which a verdict in favor of appellee was authorized, was the proximate cause of appellee’s injury.

0. O. Burger testified for himself: “I had never before handled a pole like this one, a 45-foot pole. I had raised smaller poles. This pole that we were raising was longer, larger, and heavier in every way than those I was accustomed to raising. The poles that I had been raising fitted in loose in the raising crutch, down into the circle, on the teeth. When I went to raise them up with the pike pole it was easy to move the jenny down the pole and keep up with the raising up of the pole and protect the men from the weight of the pole. * * * When we were raising that pole that afternoon, when I got hurt, * * * it would hang up in the jenny; the top teeth of the jenny would cut the pole, and it would hang on. * * * After it got a certain distance it got larger, and just the top teeth could cut into the pole, and it would not fit tight down. It had never done that with the poles that I had been accustomed to raising before. * * * The company furnished us with that raising crutch on any other poles that I had helped raise, and I had not thought about that trouble, about the catching or making the pole turn, or' anything of the kind. I did not anticipate or understand what danger might befall me in using it that way; never gave it a thought. There were four men there witn pike poles, counting myself, assisting in this work. * * ■ * Those pike poles were not all in good order; one of the boy’s pike poles, in the lead, had a loose spike, and that .would come out. * * * It would come out of the end of the pike pole, and would be sticking into the pole, which would result in a strain oh the other three men. That happened at the time I was injured, leaving myself and two men holding up the pole. * * * As to what happened to me there at that time, the other boys kind of give way and the pole swung over, and I swung under to catch the weight, and when I did I hurt my hip. I swung under to catch the weight to keep it from coming down, from falling. I have no idea what caused the pole to swing around. The pole never swung around that way when it would slip down into the crotch of the jenny and catch on the bottom teeth. This pole was resting on the upper teeth of the jenny. I had never been in that kind of danger before, in that way; when I caught the strain of that pole it seemed to rip my bone loose, my backbone and hip and made me awful sick. When that pole twisted that way, and that weight fell on me, I hallooed to the others to hold up on to it and put the weight to it to push upon the pikes and help me to take the weight. They pushed up a little; what they could, but they didn’t have the strength.. * * * Just prior to the pole turning one of the spikes was loose on the end of it. I don’t remember whether it was before or after-wards that the spike came out.”

The witness Russell testified: “There was something unusual happened when they were raising that pole; the old gin that they had there did not seem to be working good; would get fastened in the timber, and they would have some difficulty in getting it loose, and it would leave a strain on them while they were trying to unfasten the gin that they had there. I know that it left a strain on Mr. Burger and the other men while they were unfastening the gin. I could not say whether the pikes with which they were working were in good order or not; only it would seem like they would have trouble with them some time in getting them unfastened. Seemed like some of the men didn’t understand the job well, somehow or other. * * * After the pole was placed Mr. Burger went over and lay down on a truck. I went over where he was, and talked to him, and went and got, him some water and bathed his face, and after he went to vomiting I sent for a doctor, Dr. McHaffey. That was after the pole was set. He appeared to be then in great pain.”

The witness Everett testified: “Every man had to hold with all his strength to save his life. The pole turned a little bit over the way Mr. Burger was. If the pole slips and turns there is a great deal more danger, more weight and strain then on the man towards whom it turns if they support it. * * *' A man is liable then to get hurt most any time.”

L. P. Phillips testified: “In raising a pole with pike poles they have to have the men in pairs; if yon have more men on one side than there is on the other, the odd man has to work against two men. In raising a 45-foot pole with pike poles there would he at least four men with pike poles, two on a side, and a man at the gin (jenny), and then there ought to be two on the sides without poles to push with their hands against the pole (being raised), to steady the pole, and one at the foot, or the butt.”

The testimony further shows that the foreman, Mr. Calhoun, was personally present, directing what appellee and his colaborers should do, and how they should do it, and that he stated that so far as he knew none of the men assisting in raising the pole had any previous experience in that character of work. He said: “So far as I know, those were the first poles they had put up.” He further testified: “I really didn’t know anything had happened other than hallooing; Oscar [appellee] or some of the men hal-' looed to push. We had just gotten the pikes in ready to throw the pole in the hole, and there was a kind of twist, or the jenny give a little, or something, and I heard him hal-loa to push, or something to that effect. We went ahead and threw the pole in the hole, and Burger went over and sat down on a — then he got' up and laid down on one of those express trucks, and I went to him. I have heard it stated that the spike on one of those pike poles was loose; that when they would stick it into the pole, the spike part of it would stay there; they would have to pull it out. I don’t remember of one being in that shape.”

We, of course, cannot quote all the testimony bearing on the issues submitted to the jury, and have undertaken to give above only so much of it as, in our judgment, authorized and supports those paragraphs of the court’s general charge complained of by the assignment here under consideration, and which make plain the fact that the court committed no error in refusing the peremptory instruction requested by appellant. Touching the question of the condition of the pike pole being submitted as an issue of negligence, it may be said that, while on cross-examination appellee stated that he did not remember or know whether the spike came out of the pike pole before or after the electric light pole swerved or turned, causing his injury, yet, in view of his testimony on direct examination, to the effect that the spike came out at the time he was injured, and the other facts and circumstances in evidence, it became and was a question for the jury to determine whether the furnishing by appellant of such an instrument to be used in doing the work in which appellee was engaged was an act of negligence, and the proximate cause of appellee’s injury. Likewise, whether or not either of the other acts of commission or omission submitted to the jury as a ground of negligence upon which a recovery by appellee might be had was, under the evidence, a question 'of fact for the determination of the jury.

The sixth and seyenth assignments of error complain, respectively, of the refusal of the court to give special charges requested by appellant, submitting as issues in the case contributory negligence on the part of appellee, and negligence on the part of his fellow servants. These charges were properly refused. The evidence did not warrant a finding that appellee’s injury was the result either of negligence on his part or the negligence of a fellow servant. No act or omission of the appellee is shown, which could be construed as even remotely contributing to bring about the accident and injury of which he complains, nor can the accident or its consequences to appellee be charged to any negligent act or omission of a fellow servant of appellee. Neither the appellee nor any of his fellow servants had anything to do with determining the number and competency of the men required to raise the pole in question, or the fitness of the instrumentalities selected and used in raising it. They were doing the work under the orders and supervision of Mr. Calhoun, appellant’s vice principal. He was present and determined and directed what appellee and his fellow servants should do, and how and with what instrumentalities they should do it. Whatever the negligence was that caused appellee to be injured, it was not that of a fellow servant, but of the appellant, the master.

Appellant’s assignments of error from the ninth to the fourteenth, inclusive, complain, respectively, that the court erred in refusing to instruct the jury at its request that they would not consider as a ground of negligence on its part: (1) The fact that appellant failed to use ordinary care to furnish the appellee a reasonably safe place in which to work; (2) the fact that the jenny used in raising the electric light pole did not have a crotch large enough to hold the large part of said pole; (3) the fact that the appellant failed to furnish a sufficient number of competent men to raise and place the pole; (4) the fact that one of appellee’s coemployfis, to wit, Morse, had a sore hand; (5) the fact that the pole was raised by men with pike poles instead of by block and tackle; (6) in refusing to give a special charge requested, to the effect that, if at the time and place where the appellee claims to have received his injuries, he was not in a sound physical condition, and was more susceptible to an accident by reason of having received injuries while working on the railway in December, 1909, he assumed the risk of dangers resulting from heavy work of the nature of that which he was doing at the time of the accident. For propositions under these several assignments, which are presented together, and for the testimony requiring the giving of the charges to which they relate, we are referred to the propositions and statements made under the foregoing assignments of error, Nos. 1,2,3, 4, and 6. Eor the reason given in discussing and overruling the said assignments Nos. 1, 2, 3, 4, and 5, we hold that assignments Nos. 8, 10, 11, and 13, here under consideration, are not well taken.

The alleged failure of appellant to use ordinary care to furnish appellee a reasonably safe place in which to work was not submitted to the jury as an issue upon which a recovery might be had, and this was equivalent to a withdrawal of it from the jury’s consideration.

In reference to the twelfth assignment it is sufficient to say that the facts therein enumerated, if true, would not of themselves cast upon appellee the assumption of the risk of dangers incident to the character of work in which he was engaged at the time he was hurt. The rights of the appellant in respect to the physical condition of the appellee before and at the time he received the injuries of which he complains in this suit were taken care of by a special charge, given at appellant’s request, correctly applying the law applicable thereto, wherein the jury were told, in substance, that although the appellant may have been guilty of negligence, yet as the undisputed evidence showed that appellee had received injuries as a result of an accident while working upon a railway in December, 1909, the appellant herein would only be liable for such injuries as directly and proximately resulted from the negligence of appellant in this case, and that the jury could not find for appellee any greater sum than would reasonably compensate him for the latter injury, and that they could not take into consideration in making up their verdict any injuries or condition which they found appellee was, at the time of the trial, suffering from which were due to the accident of December, 1909, and that, unless they were able to determine from the evidence what portion of his injuries, if any, were occasioned by the negligence, if any, of the appellant, and what portion was occasioned by the accident on the railway in December, 1909, to return a verdict in favor of the appellant.

In answer to the fourteenth assignment, which complains that the court erred in refusing to charge the jury not to consider as a ground of negligence against the appellant the fact that the electric light pole was raised by men with pike poles, instead of by block and tackle, it may be said that nowhere in the court’s charge was a verdict in favor of the appellee authorized if the jury should find that appellant was guilty of negligence in adopting the method of raising the pole by men with pike poles, instead of by block and tackle, and hence it cannot be assumed that the jury based their verdict upon, any such ground of negligence. The effect of the failure to submit such an issue was to withdraw it from the consideration of the jury. In refusing the special charge in question and in instructing the jury as the court did, the principle that a master cannot be charged with a "breach of the duty owed his servant, simply on the ground that a safer method or a safer instrumentality than that from which the injury resulted was available and might have been adopted by him, was not, in our opinion, violated. Whether in selecting the tools and instrumentalities for appellee and his eolaborers to do the work required of them appellant exercised reasonable or ordinary care to provide such as enabled them to perform their duties in reasonable safety was made the test, and the true test, of appellant’s liability, by the court’s charge, and not .whether appellant should have selected and used a block and tackle with which to lift and place the pole in position.

The right of an employer to conduct his own business in his own way is limited so that the right shall not infringe upon the obligation of the master to exercise reasonable care to furnish his servant a reasonably safe place in which to work and reasonably safe instrumentalities with which to perform the work required of him. Jarrell v. Blackbird Coal Co., 154 Mo. App. 552, 136 S. W. 754. Appellee’s petition charged that appellant negligently failed to furnish reasonably safe tools and implements with which to perform the work required of him, in that one of the pike poles was fitted with a loose pike or spike, and that the crutch or jenny furnished had too small a cross for use in raising such a large pole as the one being raised when appellee received the injury of which he complains, and the charge of the court instructed the jury, in substance, that if they believed from the evidence that the plaintiff, with his colaborers, was directed by J. H. Calhoun, appellant’s vice principal, to raise and place in position the pole “as alleged in plaintiff’s petition,” and the same was negligence, etc., to find for plaintiff. Thus the charge of the court confined appellee’s right to recover, in so far as the method adopted in raising the pole was concerned, to the negligence of appellant in failing to provide reasonably safe tools and implements to be used therefor. In any view of the matter, however, we do not believe we would be warranted in reversing the case because of the failure of the court to give the charge in question.

Nor do we think the case should be reversed because the court refused to charge the jury, at the instance of appellant, “not to consider herein for any purpose the statement made by plaintiff while on the stand that the defendant failed to give him employment for the balance of his life as they had agreed to do.” Doubtless, the testimony .was inadmissible, but tbe record fails to show that any objection was made to it at the time it was given, or motion then made to strike it out. Indeed, the statement of facts, as pointed out by appellee, shows that the testimony was brought out by appellant on cross-examination. In this state of the record appellant will not be heard to complain.

The sixteenth and last assignment of error is that: ‘“The court erred in refusing to permit the appellee to state, upon objection being made by his counsel what physicians in San Antonio stated to him or in his presence with reference to the advisability of an operation on his hip, and what said physicians told him would be the result if he did not have the operation performed as is shown by the defendant’s bill of exceptions No. I.” The proposition advanced is to the effect that “this testimony was material on the question as to whether the appellee had fully recovered from his railroad accident of 1909, as his own testimony and that of several of his witnesses tended to show, and was also material upon the issue pleaded by the appellant that the injuries from which appellee is at present suffering were in consequence of the railroad accident, and were not due to what happened at the pole raising on July 27, 1912.” Neither the assignment of error nor the bill of exceptions reserved to this action of the court shows when the statements of the physicians proposed to be shown were made, or whether the operation advised by them, if any was advised, was believed to be necessary because of the injury sustained by appellee in December, 1909, or the injury sustained by him for which damages are sought in this action, and hence the materiality of the testimony excluded does not appear. But, aside from this, the testimony was purely hearsay and inadmissible.

We have discovered no error requiring a reversal of the case, and the judgment of the court is therefore affirmed.