author: WALKER, J.

text:
    TEXAS & N. O. R. CO. v. HARRINGTON et al.
    (No. 391.)
    (Court of Civil Appeals of Texas. Beaumont.
    Feb. 14, 1919.
    On Motions for Rehearing and Additional Findings of Fact, March 13, 1919.)
    1. Railroads <2=350(13) — Death at Crossing — Negligence—Question eor Jury.
    In action for death at railroad crossing of ■ one driving automohile, issue of negligence on part of deceased held of fact for the jury under the evidence.
    2. Railroads <§=>350(32) — Death at Crossing — Obscuration oe Crossing — Question eor Jury.
    In action for death at railroad crossing of one driving automobile, whether or not crossing was obscured either wholly or partially held a question of fact for the jury, under the evidence, so that on such proposition the court was not authorized to take the issue of proximate cause from the jury.
    .3. Trial <§=>234(2) — Instruction—Contributory Negligence — Grouping Facts.
    Where defendant railroad pleaded contributory negligence on the part of decedent killed at a crossing while driving an automobile, under the plea, on request, the trial court should have grouped the facts, if any, constituting contributory negligence, and have submitted them to the jury.
    4. Railroads <§=>351(16) — Death at Crossing — Instruction.
    In action against railroad for death at crossing of one driving automobile, court should have instructed on railroad’s request that if decedent approached crossing without looking or listening, and if, by so doing, he would have seen or heard train in time, and if a man of ordinary prudence would have looked or listened, jury should find decedent was guilty of contributory negligence proximately causing his death.
    5. Trial <§=>253(4) — Instructions—Ignoring Issues.
    In action against railroad for death at crossing of one driving automobile, giving of defendant’s requested special charge op contributory negligence as proximate cause of injury, which ignored issue of discovered peril and inability to exercise ordinary care because of terror, was not erroneous, where such issues were not pleaded in answer to plea of contributory negligence.
    6. Railroads <§=>351(15) — Death at Grossing-Instruction.
    In action against railroad for death at crossing of one driving automobile, court should have submitted issue of negligence in approaching an obscured crossing at more than six miles an hour, in language of Acts 35th Leg. e. 207, § 17 (Vernon’s Ann. Pen. Code Supp. 1918, art. 8201).
    7. Railroads <§=>328(5) — Injury at Crossing — Statute—“Obscured.”
    View of railroad crossing is “obscured,” within meaning of Acts 35th Leg. c. 207, § 17 (Vernon’s Ann. Pen. Code Supp. 1918, art. 820J), requiring o.ne approaching such a crossing in a motor vehicle to proceed at not more than six miles an hour, etc., when one approaching is ncft able to see train at sufficient distance to enable him to take necessary steps for his safety.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Obscure.]
    8. Trial <§=>232(5) — Instructions—Definition oe Statutory Expression.
    In action against railroad for death at crossing of one driving automobile, on plaintiff’s request, court should have defined “crossing,” and “view of the crossing,” as used in Acts 35th Leg. c. 207, § 17 (Vernon’s Ann. Pen. Code Supp. 1918, art. 8207), prohibiting approach in motor vehicle to obscured crossing at more than six miles an hour, so that jury could have applied facts.
    9. Railroads <§=>335(5) — Death at Crossing —Contributory Negligence — Proximate Cause.
    If one is guilty of negligence in attempting to cross a railroad, and is killed by an approaching train, the negligence is the proximate cause of the death.

      10. Railroads <⅜=>351(20) — Death at Crossing — Instruction— Contributory Negligence and Proximate Cause.
    In action against railroad for death at crossing of one driving automobile, special charge on contributory negligence and proximate cause requested by defendant held properly refused, facts grouped therein not necessarily being proximate cause of accident.
    11. Railroads <®=o351(7) — Death at Crossing — Negligence — Failure to Station Flagman.
    In action against railroad for death at crossing of one driving automobile, where it was customary to run trains at from 15 to 35 miles an hour at such crossing, which was one of the most used streets, refusal to defendant of charge that jury could not find negligence because of failure to have flagman at crossing was not error.
    On Motions for Rehearing and Additional Findings of Fact.
    12. Trial <⅞=>347 — Provision for Special Verdicts — Intent op Legislature.
    It was not the purpose of the Legislature, in providing for special verdicts, to deprive litigants of any substantial and valuable right necessary for the protection of their interests, as the same existed before the passage of the act.
    Appeal from District Court, Orange County; W. T. Davis, Judge.
    Suit by Alice Harrington and others against the Texas & New Orleans Railroad Company. From judgment for plaiiitiffs, defendant appeals.
    Reversed and remanded.
    Orgain, Butler, Bolinger & Carroll, of Beaumont, and Baker, Botts, Parker & Gar-wood, of Houston, for appellant.
    Holland & Holland and J. T. Adams, all of Orange, for appellees.
   WALKER, J.

As the statement of this case made by the appellant is not contested by appellees, we here copy same from appellant’s brief:

“This suit was filed upon the 5th day of October, A. D. 1917, in Orange county district court, by Alice Harrington, in her own behalf and for the benefit of her four minor children, and Robert Harrington, father of the deceased.
“Plaintiff alleged that on or about October 1, 1917, defendant below was the owner and operator of a railroad through Orange county, and through the incorporated town of Orange, over which it ran cars and trains, and that on said 1st day of October, 1917, there was a street in the town of Orange known as Park street, wjiich was a public street open to the public, and used for ordinary purposes of travel, being a public thoroughfare, and that on said date Claude Harrington, the husband of plaintiff and the father of the minor children and son of Robert Harrington, were passing along said street in an automobile, when the automobile was struck by a passing passenger train, owned and operated by the defendant, with the result that the said Claude Harrington received injuries which caused his death; that at said time Harrington was in good health, thirty-one years of age, and was earning $75 per month.
“Said petition further alleged that the 'defendant was guilty of negligence in the operation of its train at said time and place, and its negligence was the proximate cause of the collision and the death of the deceased.' The grounds of negligence alleged against the defendant were as follows:
“(1) The failure of the train to blow any whistle or ring anji bell of the locomotive in approaching said crossing.
“(2) The failure of the agents, servants, and employes of said defendant in the operation of said train to keep a proper lookout for persons traveling said street, or about to cross said railroad crossing.
“(3) The failure to provide any means of warning to travelers using said street, such as gates, bells, or flagman.
“That the train was running at an excessive rate of speed, and at a tate of speed prohibited by the city ordinances of the city of Orange, which ordinance prohibited the running of trains at more than six miles an hour.
“Plaintiffs sought to recover the sum of forty thousand ($40,000.00) dollars.
“Defendant answered by general demurrer, special exception, general denial, a plea of contributory negligence upon the part of the deceased, and inevitable accident.
“A trial on special issues before a jury resulted in a judgment in favor of the plaintiffs-Alice Harrington for $15,000.00; Ruby Harrington, $5,000.00; Viola Harrington, $5,000.-00; Rosalie Harrington, $5,000.00; Edna Harrington, $5,000'.00; and Robert Harrington, nothing — or a total of $35,000.00.”

In answering special issues, the jury found that the train that killed Claude Harrington did not blow the whistle or ring the bell as it approached the crossing; second, that it was running at an excessive rate of speed; third, that it was traveling at the rate of 35 miles an hour when it struck deceased; fourth, that it did not maintain gates, bells, or a flagman at the crossing; fifth, that the acts and omissions of the railroad company were the proximate cause of the death of Claude-Harrington.

Question No. 6, propounded to the jury, was as follows:

“Do you believe from the evidence that the deceased, Claude Harrington, did any act or failed to do any act that contributed to the injury causing his death?”

To this question the jury answered, “No.”' Question No. 7 was:

“Did any act or omission of the deceased," Claude Harrington, which immediately preceded' the injury that resulted in his death, amount to ‘negligence’ on his part, as that term has been defined to you in this charge?”

To this question the jury answered, “No.” Question No. 8 was:

“Do you believe from the evidence that such act or omission on the part of the said Claude Harrington was the proximate cause of the injuries received by him?”

To this question the jury did not answer.

It appears from the facts in this case that deceased was about 31 years old; that he was a man of quiet, sedate habits, not a drinking man, not a man given to sports, but attentive to his own business in a quiet and orderly manner. On the morning of the tragedy he was seen by several parties just before he reached the crossing where he was killed, a block and a half or two blocks away, the testimony being that these blocks were 300 or 400 feet long; that he was traveling in an automobile with a companion, going towards the crossing at a speed variously estimated from 8 to 15 miles per hour. None of these parties saw anything improper in his conduct, but, on the contrary,, testified that he was giving his attention to his car. E. Dorsey testified for the defendant as follows :

“I kept my eye on the car until the train struck it, * * * To my knowledge the man that was in the car, running the car. when they got just up to the spur they cut the exhaust, and it is my idea (if they had kept on they could have escaped. As the car went dead, she went dead right middleway of the track; before they could make it over the train struck her. * * * There were two' men in the automobile at the time I saw them; they were running along in the ordinary way, just like anybody else. * * * They were riding along in an ordinary way. * * * I didn’t see the men doing any playing, that were driving the car. If they had been fighting each other in the car I could have seen the hats flying from one to the other. * * * I don’t undertake to say they were not fighting; I didn’t see them.”

John E. Stewart testified for defendant as follows:

“That he watched the occupants of the automobile as the car approached the crossing. As said automobile approached the crossing neither of the occupants of said car was looking for the approach of a train. The occupants of said car were playing with one, another, I judged. One had slapped the other one’s hat off, and while he who had lost his hat was reaching back in the car for it, the other man who was driving the car was watching the man who was after his hat, and they were both laughing. That they were about 150 feet from the track when he first noticed their playful conduct, and they continued it until they were 12 or 15 feet from the track. That he shouted at the occupants of the automobile and waived his hand to call their attention to the approach of the train; that the automobile was 40 or 50 feet, in his judgment, from the track, at the time he attempted to flag the car. One of them was trying to get his hat, which had been knocked off, and the other one, the driver, was watching the man in his effort to recover the hat. The occupants of the automobile never looked for the approach of a train, but after the front wheels of the automobile passed over the east rail of the passing track, and were about eight or ten feet from the track upon which the passenger train was running, they then looked up and saw the passenger train right on them.”

The finding of the jury that the train was traveling at the rate of 35 miles an hour at the time it struck the automobile is amply warranted by the testimony. This is a speed in excess of 51 feet a second. Under the facts as reviewed by appellant, the train could have been seen by the deeeasd at a distance of only 500 feet from the crossing. It took the train less than ten seconds to cover this space. There is abundant testimony in the record to warrant the jury in believing that the train could not have been seen more than 350 feet from the crossing, a distance which the train would have traveled in less than seven seconds.

Appellant complains of the refusal of the court to instruct a verdict in its behalf, and also the refusal of the court to give the special charges as shown in their ninth, tenth, and eleventh assignments of error, which charges are as follows:

Ninth assignment:

“You are instructed that if you believe from the evidence that said Claude Harrington approached said crossing on the occasion of his death without looking or listening for the approach of a train and you further believe from the evidence that by looking or listening he would have seen or heard said train in time to have prevented his injury and death, and you further believe that a man of ordinary prudence would, under the same or similar circumstances, have looked or listened for the approach of a train, then you are instructed to answer questions Nos. 6, 7, and 8 ‘yes,’ and this .would be true even though you may believe from the evidence that there were no whistles or other signals given to announce the approach of the train, and that the train was being operated in a negligent manner.”

Tenth assignment;

“You are instructed that if you believe from the evidence that the view of an approaching train to one going along Park street and about to cross the railroad track was in any wise obstructed, and such an obstruction would make it more difficult to see the approach of a train, and if you further believe that a man of ordinary prudence, situated as the deceased was at the time, would have stopped at a time and place sufficiently near the railroad to discover the approach of the train in time to have prevented the injury, then you are instructed to answer questions Nos. 6, 7, and 8 ‘Yes.’ ”

Eleventh, assignment:

“You are instructed that if you believe from the evidence that the view of the crossing and the approaching train were either wholly or partially obstructed, and you further believe that the deceased did not reduce the speed of his automobile to six miles an hour or less at a point not nearer than 30 feet from said track, and that such failure was the proximate cause of his death, you will answer questions Nos. 6, 7, ■ and 8 ‘Xes,’ and this would be true even though you believe from the evidence that no signals were given announcing the approach of the train, and that the train was being otherwise operated in. a negligent manner.”

Appellant insists that its peremptory instruction should have been given for two reasons: First, because, under its general allegation of negligence, the undisputed facts showed that deceased, Claude Harrington, was guilty of contributory negligence; and, second, that the undisputed facts showed that deceased had violated section 17, c. 207, General Laws of Texas, 35th Legislature (Vernon’s Ann. Pen. Code Supp. 1918, art. 820l), and was therefore guilty of negligence.

We cannot sustain either of these contentions. As to the first, under all the facts of this case, the issue of negligence on the part of deceased was an issue of fact to be •decided by the jury.

As to the second contention, the condition of the crossing, and the distance an approaching train could have been seen by one approaching the crossing, were fully gone into, and whether or not this crossing was “obscured,” either wholly or partially, was a question of fact for the jury, and on this proposition the court was not authorized to take from the jury the issue of proximate cause.

In this ease the defendant pleaded contributory negligence on the part of the deceased, Claude Harrington. Under this plea, when requested so to do, the trial court should have grouped the facts, if any, constituting contributory negligence on the part of the deceased, and submitted the same to the jury. Western Union Telegraph Co. v. Jeanes, 88 Tex. 230, 31 S. W. 186.

In Railway v. Mangham, 95 Tex. 413, 67 S. W. 765, the very point was certified by the Fifth Court of Civil Appeals, the statement relating to the issue in question being as follows:

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

In answering the question, the Supreme Court, on page 418 of 95 Tex., on page 766 of 67 S. W., says:

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

The court’s main charge to the jury failed to do this. The defendant sought to have-grouped and submitted to the jury the facts constituting its defense, with instructions from the court to the jury as to how to answer questions 6, 7, and 8.

Appellees insist that the court properly refused these requested charges, because they take from the jury the issue of proximate cause, and cite as supporting this position Wells Fargo & Co. v. Benjamin, 107 Tex. 331, 179 S. W. 515; G., C. & S. F. Ry. Co. v. Mangham, 29 Tex. Civ. App. 486, 69 S. W. 80; G., C. & S. F. Ry. Co. v. Shieder, 88 Tex. 166, 30 S. W. 902, 28 L. R. A. 538.

In the Benjamin Case the plaintiff was injured by a box falling from an express truck, the ground of negligence being:

“That the plaintiff in error negligently loaded-said truck so as to permit and cause the box or crate to fall from the same; the other, that the plaintiff in error, its agents, servants, and employés, negligently handled and operated and managed said truck in such manner and way as-to cause the said box or crate to fall from the truck and strike the plaintiff.”

The defendant requested three special-charges, as follows:

(1) “Xou are instructed that if you find from the evidence that the plaintiff was walking or standing by the moving truck at the time he was struck, and that a person of ordinary care, under the same circumstances, would not have-walked or stood by it, you will find for the defendant, regardless of whether or not you find that one or more of the employés of the defendant was guilty of negligence in loading the truck or handling it.”
(2) “If you find from the evidence that a person of ordinary care, under the same circumstances, would have avoided walking or standing in such close proximity to the truck that a crate or box falling therefrom would strike him, you will find for the defendant.”
(3) “If you find from the evidence that the plaintiff failed to see the approaching truck, with the load thereon, or that he saw the said truck and its load, but took no notice of it, but you further find that a person of ordinary care, situated as the plaintiff was when the truck was approaching him, would have seen the said loaded truck, and would have avoided walking or standing in such close proximity to it as to be struck by a falling crate or box, you will find for the defendant regardless of whether or not any of its employes were guilty of negligence.”

Judge Yantis decided that the court did not err in refusing these charges, because they took from the jury the issue of proximate cause, saying:

“There would be no warrant for a charge in iwhich the court withdrew from the jury a question of fact, and settled it conclusively as a matter of law, unless the facts were such that all reasonable minds would agree, and none differ on the subject. We hardly think it could he said that, under the facts and circumstances of this case, all reasonable minds would agree that, if Benjamin was guilty of negligence by being near the truck, such negligence proximately contributed to his injuries.”

In discussing proximate cause he says:

“One’s act is only a proximate cause of an injury when it could have been reasonably anticipated by him that some such injury would result from such act. Now, who should determine, the court or the jury, whether it was in contemplation of Benjamin that if he stood near the truck he would probably be injured? Plainly it is a question of fact, to be determined from the evidence introduced, and, being a question of fact, it was a jury question, and the trial court would have no authority in law to decide it.”

In G., C. & S. F. Ry. Co. v. Mangham, supra, the plaintiff recovered damages for injuries suffered by him in attempting to board an engine of appellant. The court charged the jury as follows:

“It was the duty of plaintiff, when he attempted to board the engine after throwing the switch, to use such care and caution as an ordinarily prudent person would have exercised under like circumstances; and if he failed to do so he would be guilty of contributory negligence, and could not recover, although you believe from the evidence that the defendant was guilty of negligence as explained in the general charge.”

The appellant asked that the following special charge be given:

“You are instructed that the plaintiff, in performing his duties, was required to exercise such care as an ordinarily prudent man would have exercised under like circumstances. If you believe from the evidence that, considering the time of the day, the state of the weather, the fact that the train was moving, and escaping steam obscuring or tending to obscure his vision, an ordinarily prudent man would not have attempted to get on said engine, and that the act of plaintiff in attempting to get on said engine was, under all the circumstances of the case, negligence, then, if you so believe, you will find for the defendant.”

The court held that the refusal of this special charge was not error, because the charge did not require the jury to find that such negligence contributed to the injury. This decision is cited by Judge Yantis in support of his decision in the Benjamin Case, supra. The facts grouped in this special charge refused by the court would not, as matter of law, make the plaintiff guilty of contributory negligence.

In Ry. Co. v. Shieder, supra, the following special charge was requested-by appellant:

“It was the duty of plaintiff’s wife to look for an approaching train when about to go upon the railroad; and, if her view was in any way obstructed while' approaching said crossing, it was her duty to look for a train as soon as she had reached a point where she passed such obstructions and a view of the track was open to her; and if you believe from the evidence that she failed to look for a train as soon as she could have seen the same, and that a failure to do so was a failure to exercise such care as a reasonably prudent person would have used under the circumstances, and that such failure contributed to the injuries received, you will find for the defendant.”

In discussing this charge the court said:

“The latter part of the charge, reading, ‘if you believe from the evidence,’ etc., states a correct principle of law, and should have been given, if asked alone. It left to the jury the question as to whether, upon the whole evidence, she failed to look, and whether, under all the circumstances, such failure was negligence.”

As we construe the special charge set out in appellant’s ninth assignment of error, it is in direct harmony with the rule announced in the Shieder Case, supra.

Applying Judge Yantis’ definition of proximate cause, as above given, in Wells Fargo v. Benjamin, supra, to wit, “One’s act is only a proximate cause of an injury when it could have been reasonably anticipated by him that some such injury would result from such act,” to the special charge complained of in the ninth assignment, makes this charge a proper and necessary charge to be given to the jury, when requested by defendant, and relieves it of appellee’s criticism. Standing by an express truck is not a place of inherent danger. A railroad crossing is. Reasonable minds cannot differ as to the danger of crossing in front of an approaching train. This charge properly submits the issue of proximate cause, and an affirmative finding on the facts grouped therein would defeat plaintiff’s cause of action. G., H. & S. A. v. Bracken, 59 Tex. 74; G., H. & S. A. v. Kutac, 72 Tex. 643, 11 S. W. 127; Railway Co. v. Edwards, 100 Tex. 22, 93 S. W. 106; T. & P. v. Fuller, 5 Tex. Civ. App. 660, 24 S. W. 1090; Ft. W. & D. C. v. Hart, 178 S. W. 795; Southern Traction Co. v. Kirksey, 181 S. W. 545; M., K. & T. v. Trochta, 181 S. W. 764; St. L. &. B. M. Ry. Co. v. Paine, 188 S. W. 1034; Baker v. Collins, 199 S. W. 520; Ry. Co. v. Jacobson, 28 Tex. Civ. App. 150, 66 S. W. 1111; Railway Co. v. Dean, 76 Tex. 73, 13 S. W. 45; St. L. & S. W. Ry. Co. v. Branom, 73 S. W. 1064; Texas Midland v. Wiggins, 161 S. W. 445; Teetz v. I. & G. N., 162 S. W. 1000; Byon v. Phillips, 196 S. W. 995; Railway Co. v. Harrell, 194 S. W. 971; Railway Co. v. Breadow, 90 Tex. 26, 36 S. W. 410; Railway Co. v. Shieder, 88 Tex. 152, 30 S. W. 902, 28 D. R. A. 538; Southern Trac. Co. v. Wilson, 187 S. W. 538.

In I. & G. N. Ry. Co. v. Edwards, 100 Tex. 22, 93 S. W. 106, Judge Williams said:

“The law is well settled that a traveler approaching a railroad crossing must exercise ordinary prudence in going upon the track to see that he may do so with safety. He cannot excuse the absence of all care by showing that those in charge of a train have also been guilty of negligence. This is the precise attitude of the plaintiff, when he claims that he was not bound to look out for himself until the statutory signals were given. His claim cannot be admitted without denying the rule which exacted the duty of due care on his part, a duty as binding on him as was the duty of giving signals binding on the defendant. The case is easily distinguished from those in which this court has held that, under the facts thereof, it would have been improper for the courts to have instructed that it was the duty of the travelers to do any particular thing as a measure of due care, such as to look and listen, it being the function of the jury to say what precautions were called for by the particular situation. Those cases presented issues for the jury to determine as to whether or not the care was sufficient, and not bare facts, like those in this case, establishing that no care whatever was taken, and offering no excuse for its absence except a reliance on the other party. In one of those cases this court took occasion to say, with reference to charging the jury: ‘The rule given as to degree of care required of deceased is recognized by former decisions of this court. [Houston & G. N. R. Co. v. Randall] 50 Tex. 254; [Houston & T. C. Ry. Co. v. Cowser] 57 Tex. 302; [Houston & T. C. Ry. Co. v. Waller] 56 Tex. 334; [Tex. & P. Ry. Co. v. Murphy] 46 Tex. 356 [26 Am. Rep. 272]; [Eames v. Texas & N. O. Ry. Co.] 63 Tex. 660. * * *’
“While persons using a railway crossing have the right to expect that the law requiring signals will be obeyed, this is not a substitute for the duty of exercising care for themselves, and they are not excused from that duty by the fault of the other party. No case in this court has allowed a recovery upon facts such as these, and the judgment cannot be permitted to stand without abolishing the rule, recognized by all authority, requiring the exercise of ordinary prudence on the part of persons crossing railroad tracks.”
In G., H. & S. A. Ry. Co. v. Kutac, 72 Tex. 643, 11 S. W. 127, the Supreme Court said: “Ordinarily the fact that the customary signals were not made does not relieve a person approaching an open crossing from the duty of keeping a proper lookout on approaching the road. And where a person knowingly about to cross a railroad track may have an unobstructed view of the railroad so as to know of the approach of a train a sufficient time to clearly avoid any injury, he cannot recover as a matter of law, although the company may have been negligent or neglected to perform a statutory requirement. I. & G. N. R. R. v. Graves, 59 Tex. 331."

In T. & P. Ry. Co. v. Puller, 5 Tex. Civ. App. 660, 24 S. W. 1090, Chief Justice Light-foot said:

“The rule is well settled in this state that, even if the defendant was guilty of negligence in failing to give the proper signals, and in running at a greater rate of speed than was allowed by law, yet if the plaintiff attempted to cross the track at a place where she could have seen the engine in time to have avoided the danger by looking, and failed to do so, she was guilty of contributory negligence, and cannot recover.”

In Ft. W. & D. C. Ry. Co. v. Hart, 178 S. W. 795, Judge Hendricks, speaking for the court, said:

“We think, where the view is unobstructed, it was contributory negligence for this driver to run his auto into a moving train, whether he looked or did not look, upon all the facts presented in this record conclusively showing that the cars were moving at a time when he should have seen them in action, and that it would be the trial court’s duty to so instruct the jury upon another submission upon the facts. I. & G. N. Ry. Co. v. Edwards, 100 Tex. 22, 93 S. W. 106; Railway Co. v. Bracken, 59 Tex. 74; Boyd v. Railway Co., 101 Tex. 411, 108 S. W. 813.”

In Southern Traction Co. v. Kirksey, 181 S. W. 545, the court said:

“Appellant asserts that the evidence is insufficient to support the verdict, in that it fails to show negligence on the part of the railway company, and likewise shows contributory negligence on the part of the deceased. We agree with appellant in this last contention. Prom all the facts and circumstances in evidence we are impressed with the belief that the deceased either saw, or by the use of ordinary diligence could have seen, the approaching train. He did not stop, but kept steadily driving after passing Deloach. If he had stopped, looked, or listened he would have heard or seen the train, because Deloach testified that by a glance in a northward direction he could have seen the approaching train. Deceased was familiar with the highway, its publicity, and the frequency of the passing of trains thereover. He must have known the danger necessarily incident to an attempt to cross the track without looking or listening.. If he saw or heard the train he must have been impressed with the belief that he could cross ahead of it. The evidence clearly shows that, instead of the train’s running into the auto, the deceased ran into the train. At any rate, we think the facts show that the deceased was guilty of contributory negligence as matter of law, for which reason appellee ought not to recover.”

In St. Louis, B. & M. Ry. Co. v. Paine, 188 S. W. 1033, the court said:

“The courts say that the general rule is that negligence is a question of fact for the jury, but the courts can and do declare some acts to be so obviously dangerous and reckless as to constitute negligence per se. The facts show clearly that thá driver of this automobile neither looked nor listened for the train which struck him, nor did'he pay any attention to the warning indisputably given him, but ran his car upon the track immediately behind the recoding train, when its rear end had gone 40 or 50 feet, not more than two ear lengths from him, without in any way trying to ascertain whether there was another train to pass immediately in the other direction, and such acts upon his part constitute such negligence as to preclude a recovery in this action.”

In Baker v. Collins, 109 S. W. 519, the court said:

“The undisputed proof shows that Collins drove his automobile upon the intersection of two roads, when, if he was not guilty of negligence, he must have seen the headlight, and known that the train was approaching the crossing, and that it was dangerous for him to attempt to cross in front of it. This being the case, the negligence of the deceased will bar any right of the plaintiffs to recover, unless the case comes within that class of cases where it is held that when the negligence of the defendant has caused the injured party to place himself in such a perilous situation as produces that degree of mental terror which incapacitates the injured party from acting as he otherwise would act, in which event the defense of contributory negligence is held not to apply.”-

It is true that the special charge in the ninth hill of exception ignores the issue of discovered peril, and inability to exercise ordinary care, because of terror, as stated in the opinion last above cited, but appellees did not plead these issues in answer to appellant’s plea of contributory negligence.

The special charge complained of in the eleventh assignment of error, as above copied, calls for a construction of section 17, c. 207, Acts of the 35th Legislature, which is as follows:

“Any person driving a motor vehicle or motorcycle, when approaching the intersection of a public street or highway with the tracks of a steam railroad or interurban railroad, where such street or highway crosses such track or tracks at grade, and where the view of the said crossing is obscured, either wholly or partially, shall before attempting to make the said crossing, and at some point not nearer than thirty feet of the said track, reduce the speed of his motor vehicle or motorcycle to a speed not to exceed six miles per hour before making the said crossing, unless there are flagmen or gates at such crossing and such flagmen or gates show that the way is dear and safe to cross such track or tranks, and provided further that the provision of this section shall not apply to persons crossing interurban or street railway tracks within the limits of incorporated dries or towns within the state.”

Since the common use of the automobile, accidents at railroad crossings are of frequent occurrence. It is known to every one that an approaching train, at many of these crossings, cannot be seen until it is very close to the actual crossing. Evidently the Legislature had in mind this condition when this section was passed. To hold, as contended by appellees, that “view of the crossing” refers only to that portion of the railroad bed and track actually used by the public in crossing, would write out of this article all practical meaning. “Yiew of the crossing,” as used in this article, means that portion of the railroad track to the front and to the right and left, within the view of one approaching the track. The view of the crossing is “obscured,” within the meaning of this article, when one approaching the track is not able to see an approaching train at a sufficient distance to enable him, in the exercise of ordinary care, to take the necessary steps for his safety.

The defendant requested the court to submit this issue of negligence, using practically the words of the statute, which charge should have been given. Had appellees so requested, the trial court should have defined “crossing” and “view of the crossing,” so the jury could have applied the facts to such definition.

We think, as is done by this charge, the court should require the jury to find that such negligence, arising from a violation of this statute, was the proximate cause of the death of Claude Harrington.

Under ihe authorities above cited, and the facts stated therein, if one is guilty of negligence in attempting to cross a railroad, and is killed by an approaching train, such negligence is a proximate cause of his death. But we are not prepared to hold that negligence per se in failing to observe the provisions of section 17, c. 207, Acts of the 35th Legislature, constitutes a proximate cause, but, as required by this special charge, the issue of proximate cause as to this issue in this case should be submitted to the jury.

The special charge in the tenth assignment was properly refused, because the facts therein grouped would not, as a matter of law, necessarily be the proximate cause of the accident.

By appellant’s third assignment of error, complaint is made of the refusal of the court to give the following charge:

“You are instructed that you cannot find the defendant guilty of negligence because of its failure to have a flagman at said crossing or gates or bells thereat.”

In answering questions 1 and 4 the jury found that the whistle was not blown and the bell was not rung as the train approached the crossing, and they further found that the defendant did not maintain gates, bells, or a flagman at this crossing. In answering question No. 2, the jury found that the train was traveling at an excessive rate of speed when it struck Claude Harrington. In answering question No. 5, the jury found that the failure to ring the bell and blow the whistle, and the failure to maintain flagmen, gates, and bells at the crossing, and the excessive rate of speed, were the proximate cause of the death of Claude Harrington. Under the undisputed evidence in this case, Park street is one of the most used streets in the city of Orange. It is graveled or shelled, and is one of the streets that leads out towards the city of Beaumont. It is being used at aE times by the public. Numerous passenger trains and freight trains constantly cross over this street. This crossing is not far from the heart of the city. By ordinance, it is unlawful for a train to run at a greater speed than six miles per hour within the corporate limits of Orange. The testimony of the defendant is that this ordinance has never been observed, so far as this crossing is concerned; that the usual rate of speed in crossing Park street is 15 miles an hour, and it ranges from that to 35 miles an hour. The testimony of many witnesses is that, when you are as near as 60 feet of this crossing, a train would have to be within 350 feet of the crossing before you could see it. By its propositions, appellant puts this distance at 500 feet. Under the facts of this case, considering the rate of' speed customarily used by the defendant’s trains in crossing Park street, the failure to give this instruction was not error. Central T. & N. W. Ry. Co. v. Gibson, 83 S. W. 865; M., K. & T. Ry. Co. v. McGee, 92 Tex. 616, 50 S. W. 1013.

In Central Texas & N. W. Ry. Co. v. Gibson, supra, Justice Talbot used this language :

“It is true that railway companies are not required to have a flagman posted at every crossing to give warning to travelers about to pass over them of the dangers of approaching trains. This duty they owe the public at such crossings only as are, by reason of their location and the circumstances surrounding them, rendered unusually dangerous. In such a case the failure of the railway company to have a flagman at such a crossing becomes a proper and legitimate subject of inquiry, and a question of culpable negligence in determining the Eabihty of the company for damages at ‘the suit of an injured person by collision with1 its trains or cars in attempting to pass over such crossing.”

The rule announced in these two decisions seems to be in direct point and against this assignment.

We have carefully examined all other assignments of error and special charges requested by appellant, and find no error in the action of the court in relation thereto.

For the refusal of the court to give the special charges complained of in the ninth and eleventh assignments of error, this cause is reversed and remanded.

On Motions for Rehearing and Additional Findings of Fact.

Both parties in this cause have filed motions for rehearing, and in addition thereto the appellant has filed a motion for additional findings of fact.

In our original opinion we said that the issue as to whether or not the crossing was obscured, either wholly or partially, was a question of fact for the jury. As this case is to be reversed, we deem it improper to make a finding that this crossing was obscured, or was not obscured, notwithstanding appellant says it is immaterial to it which way we find. For the same reason, we think it best to express no opinion as to the weight of the testimony on the other findings requested by appellant.

In deference to the two motions for rehearing filed by the parties herein, we have carefully reconsidered our original opinion.

Appellees, in their motion for rehearing, suggest that the special charges should not have been given, because they are, in effect, a general verdict for the defendant, citing under this assignment many authorities.

Worden v. Kroeger, 184 S. W. 584, is more nearly in point than any other case cited. In this case the following special charge was given:

“You are charged that, if you believe from the evidence in this case that the plaintiff had the capacity and opportunity to know and appreciate the dangers in reference to using the machine without a cut-off guide, and if you believe by the exercise of that ordinary circumspection that an ordinarily prudent person would have used in the same circumstances he would have known of the dangers in reference to using the machine without a cut-off guide, and he remained in the service of the defendant and used the machine without a cut-off guide, and was injured by reason thereof, and that the same was dangerous as a matter of law, he assumed the risk, and would not be entitled to recover; and, so believing, you must return verdict in favor of the defendant on the issues submitted to you by the court in reference thereto.”

The giving of this charge was held' to be error; the court saying:

“It is improper to submit a special charge calling for .& general verdict, where the case is submitted upon special issues.”

It will be noted that this charge specially directs a verdict for the defendant, if the jury finds affirmatively on the issues submitted in this charge; the charge saying:

“And, so believing, you must return verdict in favor of the defendant on the issues submitted to your by the court in reference thereto.”

In this ease the jury are not so instructed. These charges advise the jury how to answer ■questions 6, 7, and 8 if certain facts are found to exist. If this case had been submitted on a general charge, the court would have instructed the jury that the deceased was guilty of contributory negligence, if the facts enumerated in these charges were found to exist.

As stated in our original opinion, the defendant has the right to have grouped and presented to the jury in an affirmative way the facts constituting contributory negligence on the part of the deceased. Our Supreme Court holds that this is a valuable right given by our laws to the defendant. It was not the purpose of the Legislature, in providing for special verdicts, to deprive litigants of any substantial and valuable right necessary for the protection of their interests, as the same existed before the passage of this act. These charges only submit to the jury, in an affirmative way, the issues of contributory negligence and proximate cause, and instruct the jury, in an affirmative way, what facts would constitute contributory negligence and proximate cause on the facts before the jury. We believe the appellant was entitled to these charges.

In reversing this case we are expressing no opinion on appellant’s assignment that the verdict for $35,000 is excessive.

.The motion of appellant to find additional facts and both motions for rehearing are in all things overruled.
      <§z»For other cases see same topic and KBY-NXJMBBR in all Key-Numbered Digests and Indexes

      c£n^?For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: PLEASANTS, C. J.

license: Public Domain

text:
    VINEYARD v. MILLER LAND CO. et al.
    (No. 7477.)
    (Court of Civil Appeals of Texas. Galveston.
    Feb. 13, 1919.
    Rehearing Denied March 13, 1919.)
    1. Partnership &wkey;>55 — Proof of Relation.
    In action to foreclose vendor’s lien notes, evidence held insufficient to sustain finding that plaintiff was a partner with land company.
    2. Corporations &wkey;>379 — Partnership with Individual.
    No valid partnership agreement can be made between a corporation and án individual, and it is immaterial that individual is owner of most of stock of corporation.
    3. Judgment <&wkey;256(l) — Findings of Fact —Verdict.
    Whatever may be state of evidence, a judge cannot base a judgment upon a finding of fact contrary to verdict of jury upon the issue.
    4. Vendor and Purchaser <&wkey;267 — Vendor’s Lien — Discharge.
    Where a vendor of land agreed to release any part of land sold by vendee upon payment of $25 per acre on land to be released, vendee could not, after making a general payment on notes without asking that such payment be applied to release of some designated tract, thereafter claim that it should be so applied.
    5.Vendor and Purchaser <&wkey;267 — Vendor’s Lien — Discharge.
    Where vendor agreed to discharge his lien upon any designated tract of land upon payment of $25 per acre out of proceeds of such particular tract, equity would protect purchaser from vendee of particular tract of land who had furnished money paid to vendor against any lien of vendor, if said payment amounted to $25 per acre, but a purchaser who had not paid as much as $25 per acre had no right to demand that previous payments made by land company on notes in excess of $25 per acre for other lands sold should be applied to discharge of lien on his land.
    Appeal from District Court, Wharton County; Samuel J. Styles, Judge.
    Suit by B. L. Vineyard against the Miller Land Company and others. Judgment for defendants, and plaintiff appeals.
    Reversed and remanded.
    Geo. P. Willis, of El Campo, and Kelley & Hawes, of Wharton, for appellant.
    Hall & Barclay, of Wharton, W. S. Strickland, of Eagle Lake, and A. J. Wirtz, of Seguin, for appellees.
   PLEASANTS, C. J.

This suit was brought by appellant against appellees to recover the amount due upon three promissory notes for the sum of $7,048.33 each, executed by the Miller Land Company on October 11, 1910, in favor of the Fidelity Immigration Company, and payable respectively in one, two, and three years after date, with interest from date at the rate of 7 per cent, per annum, and to foreclose a vendor’s lien upon a tract of 1,357.25 acres of land in Wharton county, described in plaintiff’s petition, and conveyed by the Fidelity Immigration Company to the Miller Land Company, said notes having been executed in part payment of the purchase money for said land, and a vendor’s lien having been expressly retained in said deed to secure the payment of the notes. The petition alleges that the notes were for a valuable consideration transferred and indorsed to plaintiff by the Fidelity Immigration Company, and plaintiff was the legal holder and owner thereof. The petition further alleged:

“That defendant had made certain payments on said notes as stated in said petition, leaving a balance due of principal on note No. 1 on May 15, 1913, of $1,557.72; on note No.- 2, on October 11, 1912, of $6,048.33; and on note No. 3, on said date, of $6,548.
“The said Miller Land Company in October, 1910, had said tracts of land, which lay in a body, surveyed and subdivided into lots numbered, consecutively, from one to 98, inclusive, and designated on the plat which is of record in the deed records of Wharton county, Tex., in volume 23, pages 413 and 414.
“That on February 13, 1913, defendant the Miller Land Company, acting by its president and trustee, C. B. Miller, and its secretary and trustee, O. L. Miller, conveyed to the defendant E. S.-Miller 872.25 acres of said land, the deed being recorded in deed records of Wharton county, Texas, in volume 35, pages 62 and 33, and that as part of the consideration for said land the said Miller assumed the payment of said three notes.
“That on the same date the defendant E. S. Miller, by deed of said date, recorded in said deed records, volume 35, pages 63 and 64, conveyed said 872.25 acres of land to said C. B.. Miller and' O. L. Miller, and as part consideration therefor the said C. B. and O. L. Miller agreed to and did assume the payment of the said three notes sued on.
“That each of the other defendants, to wit, T. J. Brentlinger, Thomas Baskerville, W. H. Larsen, G. A. Proffer, Thomas Chase, and Bernard Crow, had bought from the Bliller Land Company, or from C. B. Miller and O. L. Miller, certain lots of said Bliller Land Company’s subdivision, being a part of the land on which plaintiff’s lien existed; that none of said- lands so purchased had been released by plaintiff, and that plaintiff’s lien still existed thereon.
“That the First National Bank of Eagle Lake hold one or more notes secured by vendor’s lien on some portion of said lands, which were given by the vendees to the said Bliller Lqnd Company, or to C. B. Bliller and O. L. Miller, for part of the purchase money of said lands, but that plaintiff was not apprised and could not state the nature and amount of said notes.
“Plaintiff prayed for citation to all' defendants, and that on final hearing he have judgment against defendants the Miller Land Company, and against E. S. Miller, C. B. Miller, and O. L. Miller, jointly and severally, for the full amount of the balance due on said notes, with interest and attorney’s fees and cost of suit, and for foreclosure of its vendor’s lien on all of the above lands described in the petition against all of the defendants, and for general and special relief, both at law and equity.”

C. B. Miller, E. S. Bliller, Thomas Chase, G. A. Proffer, T. J. Brentlinger, and Thomas Baskerville were nonresidents of the state, and were served with personal notice, as provided by the Statute. None of these last-named defendants, except T. J. Brentlinger, answered plaintiff’s suit, and judgment by default was rendered against them, and against the Fidelity Immigration Company, no answer having been made by it.

The defendants W. I-I. Larsen, T. J. Brent-linger, and the First National Bank of Eagle Lake filed separate answers. The defendant O. L. Miller, for himself and as trustee for the Bliller Land Company,' which had lost its corporate existence, filed an answer adopting the pleadings of the First National Bank of Eagle Lake.

The defenses set up by the several defendants who answered were briefly and substantially as follows:

The defendant W. H. Larsen alleged that the Fidelity Immigration Company, on July 1, 1910, entered into a written contract with O. L. Miller and C. B. Miller, whereby the said Millers agreed to purchase the lands described in plaintiff’s petition, and that in said contract there was a clause providing that, on payment by the vendee of $25 per acre on all tracts of' ten acres and up, the said Fidelity Immigration Company would release said tracts.

That the Miller Land Company was then- organized for the purpose of carrying out said contract and selling said land to other purchasers, and the deed was executed to it on October 11, 1910.

That the plaintiff, Vineyard, was the principal owner and stockholder of the Fidelity Immigration Company, and was president and director thereof; that he was also a stockholder and director in the Bliller Land Company, and the Miller Land Company was also the agent and partner of plaintiff and the Fidelity Immigration Company, and that plaintiff and said' Fidelity Immigration Company, and W. T. Chester, secretary of said company, were fully conversant with all the affairs of the Bliller Land Company, and participated in all the sales made by it, the two companies having the same office, office force, fixtures, etc.

That the defendant W. H. Larsen purchased from said Miller Land Company about the 1st of February, 1913, certain lots out of the Bliller Land Company’s subdivision of this tract, aggregating 180 acres, for which he gave in exchange a tract of land of the value of $4,800, and executed to said Miller Land Company his promissory note for $1,500, secured by vendor’s lien on said 180 acres. -

That before the consummation of said deal the said Larsen wrote to the plaintiff informing him of the contemplated purchase, and inquiring what arrangements had been made regarding a release of plaihtiffi’s vendor’s lien, and received a letter written by plaintiff as president of the Fidelity Immigration Company stating that, on completion of payment by the purchaser on said lands, said Fidelity Immigration Company would release any portion of said lands so purchased and fully paid for, and that relying on such letter he had closed the deal and executed said note, and had been and then was willing to pay said note to whomsover it, was due, on release of plaintiff’s lien of the Miller Land Company. He also alleged that plaintiff had been appointed by the stockholders and directors of the defunct corporation, the Bliller Land Company, as one of the trustees, to take possession of its property, etc.

The First National Bank of Eagle Lake alleged that the defendants G. C. Proffer, Thomas Chase, and Thomas Baskerville had also purchased at different dates certain lots in said. Miller Land Company subdivision with the knowledge and consent of plaintiff and the Fidelity Immigration Company, who assisted in making said sales, and had given certain notes, described in its pleadings, for part of the purchase money of said lands.

That these purchasers knew nothing of plaintiff’s lien, and were not advised by plaintiff or said Fidelity Immigration Company of its existence.

That the plaintiff, acting in his dual capacity as chief owner, principal stockholder, controlling director, and general manager of the Fidelity Immigration Company, and stockholder, director, and general manager of Miller Land Company, and as partner of O. L. Miller, who was acting also for the Miller Land Company, recommended the Miller Land Company and O. L. Miller and C. B. Miller to said defendant as worthy of credit, and procured said defendant to extend credit to said parties; that plaintiff knew that said parties had no collateral for credit except the certificates of stock of said company and the notes of the parties above mentioned, and that said parties would offer such certificates and notes to said defendant as collateral for credit; that plaintiff stated at such time that the real estate notes the said Miller would offer the defendant would be good and sufficient collateral for suph credit, and that it could depend thereon.

That the Miller Land Company, O. L. Miller, and C. B. Miller and said bank thought, and were led to believe, and did believe, that plaintiff’s' lien had been fully paid off, in that more than $25 per acre had been paid to plaintiff on said lands so sold, and that the plaintiff knew of such belief, and remained silent, and allowed and permitted said notes to be put up with said hank as collateral, and failed to assert, disclose, or claim any lien, and that said defendant bank had extended such credit and taken said notes, including the note of W. H. Larsen for $1,500.

That plaintiff was a partner with O. L. Miller and the Miller Land Company, and received part of the money advanced by said bank, the remainder of the money being used by the said Millers and the Miller Land Company in selling its lands and other lands of plaintiff; that said notes were indorsed by the Miller Land Company and guaranteed to said defendant, with the knowledge and consent of plaintiff.

The said bank also pleaded that on the 14th day of February, 1913, at a called meeting of the stockholders of the Miller Land Company, a resolution was passed dissolving said corporation, and appointing the plaintiff and O. L. Miller trustees of the creditors and stockholders of said corporation, with power to settle its affairs, collect the outstanding debts, and pay the indebtedness, and divide the balance among the stockholders.

That in pursuance of this appointment said notes and remainder of said lands came into possession of plaintiff and his cotrustees, and that to carry out the terms of their trust, and to obtain money for the purpose of disposing of said lands and of paying its indebtedness to plaintiff, the plaintiff and his cotrustees deposited said notes with defendant, and indorsed and transferred them to defendant, and that plaintiff remained silent as to his lien; that plaintiff instructed and permitted the indorsement of said notes in the name of the Miller Land Company, which was at that time a defunct corporation, of which plaintiff was trustee, and is now estopped from denying that said notes constituted a first lien on said lands.

The defendant Brentlinger alleged that on March 11, 1913, he purchased certain lots in the Miller Land Company’s subdivision from the Miller Land Company, aggregating 160 acres, for which he paid the sum of $6,400 in cash, and that a part of this cash was received by plaintiff; that the plaintiff was fully aware of the terms of said sale, and that it was made with his knowledge, ratification, and consent.

That he entered into possession of said lands, and made valuable improvements thereon, of the value of $2,000, with the knowledge and consent of plaintiff, and that plaintiff remained silent, and allowed all this to be done, and did not disclose his lien until on or about June 27, 1914, when he wrote defendant a letter, which was copied in said pleading.

This defendant also alleged that plaintiff was president and director of the Fidelity Immigration Company, and was also a stockholder, director, and officer of the Miller Land Company; that the two companies were formed for the purpose of selling plaintiff’s land and dividing the profits with plaintiff; that they occupied the same office; that plaintiff and said Fidelity Immigration Company knew of and aided and assisted the Miller Land Company in making said sale and in making the conveyance there'of by general warranty deed; that they remained silent as to any claim or lien on said land, and were thereby estopped from asserting said lien.

Said defendant also pleaded that there was an oral agreement-between plaintiff and the Miller Land Company whereby, on payment of $20 per acre on all tracts of ten acres and up, plaintiff would release the said lands; that sufficient had been paid on said notes to release the tracts purchased by said Brentlinger, Larsen, Proffer, Chase, and Baskerville.

The plaintiff, by supplemental pleadings, denied generally and specifically all the material defensive allegations of defendant’s pleadings, except the execution of the contract containing the release clause, which he alleged he had always stood ready and willing to comply with. He denied that he was ever a stockholder, director, or officer in the Miller Land Company; denied that he was ever a partner of the Miller Land Company, or that’ it was ever his agent, or that plaintiff was ever a partner of the defendant O. L. Miller, or the Miller Land Company, or that he was ever a trustee of the Miller Land Company; that if a resolution was passed at a called meeting of the board of directors, and the stockholders of the Miller Land Company of February 14, 1913, whereby he was appointed trustee of said company as alleged in said answers, that it was null and void, that plaintiff was not present and was never notified of such appointment, and never acted in said capacity in any way, and never knew of said appointment until the filing of said pleadings by defendants; that if such a resolution was passed, appointing him one of the trustees of said company, it was done without his knowledge and consent, and was done for the purpose of perpetrating a fraud upon him, in attempting to identify him with the affairs of sáid company; that he had reason to believe, and did believe, that if any such resolution appeared in the minutes of said company, it has been placed there since the institution of this suit for the fraudulent purpose of binding tbe plaintiff by tbe acts of said company.

The foregoing sufficient statement of tbe substance of tbe pleadings is copied from appellant’s brief.

There was a jury trial in tbe court below of some of tbe issues of fact raised by the pleadings and evidence. These issues and the findings of the jury will be hereinafter stated. Upon return of the verdict the trial court rendered a judgment and decree adjudging, among other things, that plaintiff’s lien had been fully satisfied and discharged as to the lands claimed by the defendants W. H. Larsen and T. J. Brentlinger, and that the notes of the several purchasers from the Miller Land Company held by the First National Bank of Eagle Lake were secured by a first lien upon the several tracts of land described in the answer of said defendant.' This portion of the judgment is not supported by any findings of tbe jury but, as to the defendants Larsen and Brentlinger, is based upon a finding by the trial judge that in the sale of these lands by O. L. Miller and the Miller Land Company, and the execution of conveyances therefor to the several purchasers, defendants herein, plaintiff was a copartner with said O. L. Miller and the Miller Land Company, and any and all payments by said purchasers to O. L. Miller or the Miller Land Company should be held to be payment to plaintiff, and the amounts so paid O. L. Miller and the Miller Land Company by said defendants being as much as $25 per acre for the land purchased by said defendants, under the terms of the contract of sale between plaintiff and the Miller Land Company, plaintiff’s lien on the land sold by the Miller Land Company to said defendants was satisfied and discharged.

As to the notes of the purchasers Proffer, Chase, and Baskerville, now held by the First National Bank of Eagle Lake, the trial court further found that O. L. Miller and the Miller Land Company had paid to plaintiff the sum of $25 per acre for all of the land sold by them to said Proffer, Chase, and Baskerville, and by reason of such payments plaintiff’s lien had been satisfied and discharged, and the lien reserved by the Miller Land Company to secure the notes of said purchasers, now held by the First National Bank of Eagle Lake, was a first lien upon said land.

Under an appropriate assignment of error appellant complains of each of these findings on the ground that they are not supported by any evidence, and that the second finding is in direct conflict with the finding of tbe jury upon one of'the issues submitted to them.

Upon these issues presented by these assignments the record discloses the following facts: The Fidelity Immigration Company, a private corporation, of which plaintiff was the president and principal stockholder, held the title as sales agent for plaintiff of the 1,357¼ acres of land described in plaintiff’s petition, and on July 1, 1910, entered into a contract with O. L. and C. B. Miller by the terms of which the company agreed to-sell the land to the Millers for a consideration of $20 per acre, aggregating the sum of $27,145. Of this amount $6,000 was to be paid in cash, and the balance in three equal annual payments, with interest at the rate of 7 per cent, per annum. This contract contained the\following provision:

“It being further understood and agreed that party of the ¿first part (Fidelity Immigration Company) will release any tract from ten (10) acres up, on payment by the parties of the second part (Millers) to party of the first part of twenty-five ($25.00) dollars per acre, said payment to apply as part payment on the next following note becoming due. It is further understood that this release clause is to be embodied in the deed from the party of the first part to parties of the second part.”

At the time this contract was entered into it was understood by all the parties to the contract that the Millers would organize a corporation to take over the land, and that the land would be conveyed to the corporation for a consideration of $25 per acre, the' $5 additional consideration to be paid in stock of the proposed corporation which would be issued to the Millers as profits.

It was further agreed that the Fidelity Immigration Company would take $2,000 of said stock, and give credit for that amount on the vendor’s lien notes to be executed by the proposed corporation for the deferred payments of the purchase money of the land. In accordance with this agreement, the Miller Land Company was organized and chartered, and on November 11, 1910, the Fidelity -Immigration Company conveyed to it the land contracted to be sold the Millers-. This deed of conveyance recites a cash consideration of $12,786.25, in order to cover the $5 per acre profit which was paid to the Millers in stock of the company. For the balance of the consideration the Miller Land Company executed its notes in favor of the Fidelity Immigration Company for the respective amounts, and payable on the several dates stated in the agreement before mentioned. These notes were secured by a vendor’s lien on the land, reserved in the , deed, which was duly recorded in the deed records of Wharton county. The notes were-immediately thereafter transferred to the plaintiff by the Fidelity Immigration Company. These are the notes upon which plaintiff seeks recovery in this suit.

The $2,000 of stock in the Miller Land Company which the Fidelity Immigration Company had agreed to take was not issued directly to that company, but was issued. and disposed of as follows: $1,000 was issued to F. A. Bruihl in satisfaction of commissions due him by the Fidelity Immigration Company in obtaining the contract of sale to the Millers; $250 was issued to Lee Hart for commissions due him by the Fidelity Immigration Company; $250 to George S. Gray in satisfaction of some equity of his in the land; and $250 to plaintiff.

After the land was conveyed to the Miller Land Company, O. L. Miller became the agent of the company for obtaining purchasers and making sales of the land.

It was agreed and understood that the Miller Land Company was to receive $32 per acre for all of the land sold by said agent, and one-half of whatever amount in excess of the $32 per acre that he could obtain for the land. In carrying out this contract with the Miller Land Company, O. L. Miller employed Mr. J. W. Roberts to assist him in interesting persons in the states of Kentucky and Tennessee in the land, and bringing them to Texas, and agreed to pay Roberts for his services one-half of the net profits of all sales made through him.

The first sale of the land made by the Miller Land Company was of two tracts of 60 and 100 acres, respectively. These tracts were sold for cash, and the proceeds, or the greater portion thereof, were paid to plaintiff, and he released his lien on the two tracts, and these tracts are not involved in this suit. After these sales were made O. L. Miller became in need of funds to carry on his business of advertising and bringing prospective purchasers from other states to investigate these and other lands which he had. for sale as-agent, and appealed to appellant to furnish him money to carry on his work, with the understanding that he would divide his net profits or commissions with appellant. Appellant under this agreement did furnish or had the Fidelity Immigration Company advance money to Miller for the purposes stated. This money was not all advanced at one time, and there is a conflict in the testimony as to the aggregate amount so advanced. Miller testified that the amount was about $700, and appellant’s evidence shows that the Fidelity Immigration Company advanced Miller for expenses $1,200 or $1,300. The testimony is not clear nor definite as to the exact terms of this agreement. O. L. Miller testified in regard to the matter as follows:

“Mr. Vineyard assisted me in the sale of the Miller Land Company’s land, as well as other land. I had quite a little land listed besides the land we bought from the Fidelity Immigration Company, but I didn’t have any options, neither had I bought any other land, but I had quite a little land listed around over the country, like any other real estate man would have. IVe had considerable difficulty in making sales of those lands, and Mr. Vineyard and I had a. verbal agreement that he would assist me in making those sales. This agreement between Mr. Vineyard and myself was made in the early fall of 1911, I think, and the terms of that agreement were that Mr. Vineyard was to furnish to me a certain amount of money by which I would be enabled to go ahead with the operation, and we would divide the net profits. By ‘net profits’ I mean the difference between the cost price of the land and the selling price, less the expense of selling. I think I sold that land all the way from $35 to $10 an acre. In answer to your question, if it isn’t a fact that the agreement was that all over $32 that I could get for this Miller land was to be the profits which were to be divided between Mr. Vineyard and my self, half and half, I will say: I remember there was something said about that, but I don’t remember whether it was $32 — I don’t remember what price was set.”

The only evidence as to any profits paid to plaintiff or the Fidelity Immigration Company under this agreement was a payment of $142.50, and this amount was not a part of Miller’s profits on the sale of any of the lands involved in this suit. Appellant testified that his undertaking to furnish funds to enable Miller to carry on the business of selling the lands was induced by a letter from Miller to him in which he asked if he (Miller) could not make some arrangement with appellant or the Fidelity Immigration Company by which he could have a sum of money placed to his credit at the bank for expenses, or have a joint account for himself and the Fidelity Company sufficient to take care of expenses. This letter states:

“Of course, you are aware of the fact that I am doing everything I can to promote business in this section, and out of such business the Fidelity shares equal with myself in all net profits, and, in order for me to continue this business, I must know where I am going to get the money on which to continue operations.”

The plaintiff, testifying in regard to this letter, said:

“In reply to that letter I stated to Mr. Miller that I would make some suggestions to Mr. Chester, but I don’t remember what the suggestions were to Mr. Chester. I wrote Mr. Chester in regard to that, and had Mr. Chester deal with him as I would advise, but I don’t remember just what the advice was now. I think Mr. Miller did get some money. This letter states that he only wanted two or three hundred dollars, but that it had run up to two or three times that much, but I don’t remember how much it was. I know, however, it had run up to a considerable sum.
“That twelve or thirteen hundred dollars that I say was advanced to him was money advanced to carry on the business, and was to be deducted from profits that he made on sales, and then, I understood, that after that was deducted, the profits that were made was to be divided pro rata between the Fidelity Immigration Company and the Miller Land Company.”

The Mr. Chester referred to in this testimony was the secretary of the Fidelity Immigration Company, and he and appellant were, as found by the trial judge, the only record stockholders.

The evidence shows that the Miller Land Company, or rather O. L. Miller, as agent of said company, and Chester, the secretary of the Fidelity Company, kept their desks and papers in the same office, and that Chester assisted Miller in showing the lands to purchasers, and also that appellant on one or two occasions went with Miller to show the lands to prospective purchasers. The appellant further testified with reference to the alleged partnership:

“I never was a partner with O. L. Miller in any way. The principal business connection between Mr. O. L. Mifler and myself was in assisting him in making sales and paying off that note he owed me. I think I have asked him a good deal about that — on every occasion I met him. I never had any agreement with O. L. Miller personally about the sales of land as land agent, or things of that sort. I personally had no agreement with Mr. Miller in regard to any division of commission between he and I, but I think the Fidelity Immigration Company did, and I knew about it.”

The undisputed evidence shows that the Miller Land Company was to receive $32 per acre for the land, and the compensation or commission allowed O. L. Miller was the amount for which he could sell the land over smd above $32 per acre.

We believe the foregoing statement contains all of the material facts upon which the trial court found as a matter of law—

“that in tho sales of the lands to the defendants in this suit, and in the executions of conveyances therefor, and collection of the purchase money, appellant was a copartner of O. L. Miller and the Miller Land Company, and that such transactions were within the scope of the partnership agreement.”

We think the evidence is wholly insufficient to sustain this conclusion of the learned trial judge. In the first place, if any partnership was shown it seems to us it was one between the Fidelity Immigration Company and O. L. Miller. The money that was furnished Miller to carry on his land agency business was furnished by the Fidelity Company, and the only division of profits ever made by Miller was with that company. No valid partnership agreement could have been made between the corporation and an individual, nor would the fact that appellant was the owner of most of the stock of the corporation, create the relation of partnership under the agreement with Miller and said corporation. So. Oil & Gas Co. v. Mexia Oil & Gas Co., 186 S. W. 446; Sabine Tram Co. v. Bancroft, 16 Tex. Civ. App. 170, 40 S. W. 837; White v. Land Co., 18 Tex. Civ. App. 634, 45 S. W. 207.

But assuming, as the trial court evidently did, that in this transaction the Fidelity Company was acting for appellant, and that the agreement was in fact made with appellant as an individual, the partnership created by the agreement was in Miller’s agency business, and could not have the scope and effect given it by the trial court. The title to the land was in the Miller Land Company, and appellant’s interest therein was that of the holder of the vendor’s lien notes given by the Land Company for part of the purchase money for the land. When the land was sold by or through O. L. Miller all of the purchase money except that over and above the sum of $32 per acre belonged to the Miller Land Company, and, if it be conceded that appellant and O. L. Miller were partners in the land agency business, any such purchase money that was paid to this partnership was paid to it as the agent of the Miller Land Company. Certainly none of the money so received could have been applied to the payment of appellant’s notes, and therefore it cannot be held that money so paid to this partnership was a payment by the Miller Land Company on its notes to appellant. We think it equally clear that this partnership agreement could not have the effect of making appellant responsible on the covenants of warranty in the deeds executed by the Miller Land Company to the purchasers. There is no evidence of any fraud or misrepresentation by appellant, nor any conduct on appellant’s part which would estop him in equity from asserting his lion on the land, and the trial court bases the judgment in favor of appellees Brentlinger and Larsen solely upon this finding of partnership. The assignment complaining of this finding of the trial court must be sustained.

There is some conflict in the evidence as to the amount of money paid appellant by the Miller Land Company, but there is no evidence to sustain the finding of the trial court that appellant had been paid as much as $25 per acre on all of the lands sold to the defendants Proffer, Chase, and Basker-ville, and that appellant’s lien on said lands was thereby discharged and released under the terms of the release agreement above set out.

The only issues of fact submitted to the jury and the findings of the jury were:

(1) Was the note for $2,462.50, executed by J. P. Larsen in favor of Miller Land Company, accepted by plaintiff as payment on the notes due him by the Land Company? To this question the jury answered, No.

(2) Do you find from the evidence that plaintiff claimed to be the owner of this note and treated it as his own? Answer, No.

(3) What amount was paid plaintiff by the Miller Land Company out of the first sales of the tracts of 100 and 60 acres of land, respectively, to Fisher and Larsen? Answer, $5,-780.15.

„ They were then asked to find whether it was understood and agreed by the parties that the $2,000 credit on the notes of the Miller Land Company which was paid in stock of the Miller Land Company was not to be considered a payment entitling the .Land Company to a release pro tanto under the release clause in the contract of sale.

The jury found that this was the agreement between the parties, and that it had been ratified and acquiesced in by the Miller Land Company.

The trial court, in order to sustain the finding that appellant had been paid $25 an acre on all lands sold to defendants before named, included the $2,000 credit for the stock in the Miller Land Company in the face of the finding of the jury that it was agreed by the parties it was not to be so included. It goes without saying that, whatever may be the state of evidence, a judge cannot base a judgment upon a finding of fact contrary to the verdict of the jury upon the issue. But, aside from the question of what amount had been paid appellant by the Miller Land Company, we cannot give the release agreement the interpretation placed upon it by the trial court. Under that agreement Miller Bros, and their successor, the Miller Land Company, were entitled to a release of 10 acres or more upon payment of $25 per acre on the land to be released. The Land Company could not, after making a general payment to appellant on the notes without asking that such payment be applied to the release of some designated tract, thereafter claim that it should be so applied. If the payment was made out of the proceeds of the sale of a particular tract of the land, equity would protect the purchaser of the particular tract of land who had furnished the money paid appellant against any lien of appellant if said payment amounted to $25 per acre; but a purchaser who had not paid as much as $25 per acre has no right to demand that previous payments made by the Land Company on the notes in excess of $25 per acre for the land, from the proceeds of which such payments were made, should be applied under the release contract to the discharge of appellant’s lien on his land. To illustrate: The first sales by the Land Company of the 100 'and 60 acre tracts, respectively, were for cash, and the jury finds that of the proceeds of these sales appellant was paid $5,780.15 by the Land Company. This amount was credited by appellant on the .principal and interest due on the notes, and the Land Company made no request that the •excess of such payment over the amount of $25 per acre for the land, which appellant released at the time the payment was made, should be applied to the discharge of appellant’s lien upon any other portion of the land. We fail to see what equitable right the subsequent purchasers, Proffer, Chase, and Baskerville, have to insist that this excess received by appellant over the $25 per acre paid for the land sold Fisher and Larsen be applied to the release of appellant’s lien on their land'. Clearly the Miller Land Company has no right to make such claim. It paid the money without any request that it be applied under the release agreement, and, conceding that it might have been so applied if the company had then so demanded, there is no equity which will now entitle it to compel appellant to make a different application of the payment.

We do not think it necessary to discuss the various assignments of error presented in appellant’s brief. 'What we have said disposes of the material questions presented. If any errors are shown in any of the remaining assignments, they are not such as are likely to occur upon another trial. For the reasons indicated the judgment of the court below is reversed and the cause remanded.

Reversed and remanded. '
      «SsmEor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MOURSUND, J.

text:
    SIMS v. FORD.
    (No. 6164.)
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 12, 1919.
    Rehearing Denied March 12, 1919.)
    1. Appeal and Error &wkey;>1039(2) — Harmless Error — Pleading.
    In action by vendee for damages in that vendor falsely stated that he had given contracts for 100 houses for a town site, and that streets, were being graded, defendant was not prejudiced by unnecessary averment in complaint that no houses had been built and no streets graded, whore extent of improvements was fully disclosed in testimony of plaintiff.
    2. Fraud &wkey;>53 — Evidence.
    In action against vendor of land for damages on account of fraudulent statements to effect that vendor had laid out a town site, and had contracted for 100 houses, and that streets were then being graded, plaintiff was properly allowed to testify as to extent of improvements made; such testimony having some bearing on whether arrangements and contracts had been in fact made as represented.
    3. Evidence <&wkey;379 — Maps — Authentication.
    A map was properly admitted in evidence, although person who made it refused to testify that it was absolutely correct", jury understanding that witness was picturing land as he saw it.
    4. Fraud <&wkey;58(2) — False Statements — Reliance.
    In action by vendee against vendor for damages for false representations, proof of falsity of one material representation among a number alleged is sufficient if purchase would not have been made %ithout it.

      5. Ebaud <&wkey;59(l) — Fraud of Vendoe — Action FOE DAMAGES — MEASURE OF DAMAGES.
    The measure of damages in action by ven-dee for fraud of vendor is not dependent upon number of false representations made on theory that certain amount should be allowed for each representation.
    6. Fraud &wkey;>65(l) — Instructions—Damages.
    In action by vendee fQr damages for fraud, a requested charge to effect that even though jury believed particular representation made, they should not consider same as element of plaintiff’s, damages because such representations did not increase the damages, hel$ properly refused as misleading.
    7. Trial <&wkey;129 — Argument of Counsel— Retaliatory Statements.
    A defendant, whose counsel in his argument commented upon absence of a certain witness, and asked where he was, and why plaintiff had not brought him to court to testify, and then challenged opposing counsel to explain Ms absence, cannot complain where opposing counsel not only stated why witness was absent, but also that his depositions had been taken by plaintiff, and had been quashed because notary had procured a receipt from postmaster instead of certifying on envelope date deposited in mails, especially where he failed to testify himself.
    Appeal from District Court, Kleberg County; W. B. Hopkins, Judge.
    Action by J. B. Ford against B. O. Sims, Jr. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Claude Pollard, of Houston, and E. H. Crenshaw, Jr., of Kingsville, for appellant.
    I-I. M. Holden and Q. S. Barrett, both of Corpus Christi, for appellee.
   MOURSUND, J.

Appellee sued appellant for damages in the sum of $11,564.05, alleged to have been suffered on account of fraud, whereby he was induced to jpurchase from appellant 301.83 acres of land in Kle-berg county. This is the second appeal, the opinion on the former being reported in 190 S. W. 1165. The second trial resulted in a verdict and judgment in favor of appellee for $4,150.16.

Complaint is made of the overruling of a special exception to paragraph 7 of the petition, wherein it is alleged that:

“Contrary to defendant’s representations about building the town of Sims, no town has ever been built there, no residences built, no brick business houses built, the streets not graded, no depot removed there from Ricardo, and no depot built there; in fact none of the things represented by defendant have been done, except the placing of a switch, either by March 1, 1915, as represented by defendant, or up to the time of filing this petition.”

The objection presented in the special exception was that such allegations did not constitute a denial or contradiction of the representations alleged to have been made by defendant in paragraph 4. Paragraph 4 reads as follows:

“Defendant further represented to plaintiff that he had laid out a town site along the north line of said land and adjoining it for a distance of one and a quarter miles; that defendant had made all arrangements for the removal of said depot from Ricardo to Sims except getting the consent of the Railroad Commission; that the people of Ricardo, had already agreed for said depot to be removed from that place to Sims, and the railroad company had agreed to remove said depot as soon as permission could be obtained from the Railroad Commission. Defendant also represented to plaintiff that he had already contracted for the erection of one hundred residences on said town site and the territory adjacent thereto, that all streets were being graded through said town site, and that on the town site he was building one hundred houses; that he had arranged to build four brick business houses on the town site.”

It is alleged, in paragraph 8 that the representations made to plaintiff were false and fraudulent, so the allegations objected to could be eliminated without affecting the sufficiency of the petition. Plaintiff charged defendant with representing that he had made arrangements for the removal of the depot from Ricardo to Sims, and that he had contracted for the erection of 100 residences, and had arranged for four brick business houses, and the averments objected to did not negative that such arrangements and contracts had been made at the time defendant so represented. Plaintiff also alleged that defendant represented that all streets were being graded, and that he was building 100 residences. Of course an , averment that the streets had not been graded negatived the truth of the representation that they were being graded. The truth of the averment that defendant was building 100 houses was negatived by alleging that no residences, no brick business houses, and no town had been built there. The exception was undoubtedly in part well taken, but it seems too clear for controversy that appellant could have suffered no injury by reason of the failure to eliminate the objectionable averments, for the extent of the improvements was fully disclosed in the testimony of plaintiff, and such testimony was properly admitted, and without objection, as having some bearing on whether the arrangements and contracts had been in fact made as represented. The first assignment is overruled.

A map or plat drawn by witness Hall purporting to show the location and extent of the parcels of untillable land was admitted in evidence over appellant’s objection. Hall testified he was not a civil engineer or surveyor, and that the map was not drawn to any scale or measurement, but was merely a free-hand sketch as nearly correct as he could make it. The proposition urged under the assignment is that when a map is introduced as original evidence, and not merely in explanation of the testimony of a witness, it must be shown that it reflects with at least approximate accuracy- the things shown thereon. The plat could serve no purpose except to illustrate and explain the testimony of Hall, with respect to the location and extent of each parcel of untillable land. Instead of the witness describing the approximate location and the measurements of each swale he undertook to show the same by a sketch made. Appellant calls attention to the fact that in any effort to produce accurate testimony he employed the county surveyor and a civil engineer to survey the land, and that each prepared a map, which he testified was accurate, that of the county surveyor showing every swale on the entire tract, while that of the civil engineer only related to that part of the land in cultivation. He calls attention to the fact that as to the land in cultivation they only disagreed to the extent of about one-half acre. An examination of these maps shows that they differ materially as to the shape and location of the swales, and that both cannot be correct. Appellee suggests that in view of the discrepancies between the two “correct” maps introduced by appellant the jury might properly be permitted to consider the sketch by Hall. A map used to illustrate testimony is usually only approximately correct, and the fact that Hall was unwilling, being an amateur, as he says, to testify that his map was absolutely correct, would not be sufficient ground to exclude it. The jury understood that each witness was merely picturing the untillable parcels as he saw them, and that the great discrepancy between the estimates of Hall and the others was largely caused by his opinion that considerable land surrounding the swamp land was bad. There was no error in the admission of the map. Wigmore on Evidence, § 790. The assignment is overruled.

It is contended that the court erred in permitting a recovery, under its charge, based upon a finding that one or more of the representations, if found to have been made, was false, instead of instructing that substantially all of the representations were made and were false. There is no merit in this contention. Proof of the falsity of one material representation, if the purchase would not have been made without it, is sufficient. Buchanan v. Burnett, 102 Tex. 492, 119 S. W. 1141. The charge is not subject to the particular objection urged. The third assignment is overruled.

A special charge was requested to the effect that even though the jury believed defendant made false representations as to the buildings and improvements, they should not consider the same as elements of plaintiff’s damages; the contention being that such charge was proper in view of plaintiff’s testimony that if the land had been level and uniform and tillable it would have been worth what he paid for it, regardless of the town site. The measure of damages in a fraud case is not dependent on the number of false representations made on the theory that a certain amount should be allowed for each representation. If any facts had been adduced showing that the representations with respect to the town site were not material, that is, did not induce the trade, an objection should have been made to embracing such representations in the general charge. The special charge was calculated to Confuse the jury on the measure of damages. It purported only to deal with the amount recoverable. The plaintiff testified that he would not have purchased the land had the representations with respect to the town site not been made. This being the case, it is entirely immaterial as to the measure of damage what the land would have been worth had it been level and all of it tillable. The fourth assignment is overruled.

The court did not err in refusing to give special charge No. ,3, for the reason that there was no evidence to the effect that plaintiff undertook to discover the truth of the representations. The short excerpt from his testimony copied in the statement fails to reflect the testimony of the plaintiff on the point, for he testified unequivocally that he relied on appellant’s statements; that he was not familiar with Texas lands and co.uld not have told anything about the land had he undertaken to investigate it.

The sixth assignment presents no sufficient ground for reversal of the judgment. The bill of exceptions discloses that counsel for appellant in his argument to the jury commented upon the absence of the witness, Flowers, and asked where he was, and why plaintiff had not brought him to court to testify, and then challenged counsel for appellee to explain the absence of Flowers. Counsel for appellee not only stated why Flowers was absent, but also that his depositions had been taken by plaintiff, but quashed because the notary had procured a receipt from the postmaster instead of certifying on the envelope the date he deposited the same in the mails. If it be conceded that the reply extended further than the limit indicated by the challenge, it does not follow, we think, that the case should be reversed. It cannot be expected that counsel challenged will always nicely weigh the extent of the inquiry provoked by’ a challenge. Appellant contends that the challenge was to show by the record in the case why this important testimony had not been furnished; but, as the record was silent on the question, appellee’s counsel naturally understood the challenge as authorizing him to tell what he knew about the matter. It is true that Flowers was an important witness, for he was present when the negotiations took place between appellant and ap-pellee; but as appellant failed to testify, it could hardly be said that appellee needed corroboration concerning the representations made to him. We conclude that we would not be justified in reversing the judgment because of such argument. The sixth assignment is therefore overruled.

There is ample evidence to support the verdict in every respect. We do not understand just what is sought to be contended on the question of the amount of the verdict. There is no testimony set out in the statement tending to show that the difference between the value of the land at the time of its purchase and what plaintiff paid and contracted to pay for it would be less than the sum found by the jury. There was no judgment canceling purchase-money notes given by appellee to appellant, and this was not a suit to recover such sum as had been paid on- the land, so it appears to us the statement under the eighth assignment is wholly irrelevant to the issue, whether the verdict is excessive.

The judgment is affirmed.
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