author: PLEASANTS, C. J.

text:
    WESTERN UNION TELEGRAPH CO. v. KERSTEN.

    (Court of Civil Appeals of Texas. Galveston.
    Nov. 13, 1913.)
    1. Telegraphs and Telephones (§ 66) — Delay in Delivery oe Messages — Liability —Evidence.
    In an action against a telegraph company for delay in the delivery of a message, announcing the death of the sendee’s brother, and thereby depriving the sendee of the privilege, of attending the funeral, evidence held not to sustain a finding that the sendee could and would have attended the funeral had the telegram been promptly delivered.
    [Ed. .Note. — For other eases, see Telegraphs and Telephones, Cent. Dig. §§ 61-63; Dec. Dig. § 66.]
    2. Telegraphs and Telephones (§ 65) — Delivery of Messages — Special Contracts —Pleadings.
    A petition, in an action against a telegraph company for delaying the delivery of a message, which alleges that the company accepted the message for delivery to plaintiff with knowledge that his residence was unknown to the sender, and accepted the sender’s guaranty that any special delivery charges which might be required if plaintiff resided beyond the free delivery limits at the point of destination would be paid, alleges a special contract, and notwithstanding the stipulation on the back of the message that the company does not undertake to make free delivery beyond the free delivery limits, but will without liability at the sender’s request as his agent and at his expense endeavor to contract for him for such delivery at reasonable prices, the. company failing to endeavor to deliver the message to plaintiff living a short distance beyond the free delivery limits is liable for breach of the special contract.
    [Ed. Note. — For other cases, see Telegraphs, and Telephones, 'Gent. Dig. §§ 54-60; Dec. Dig. § 65.]
    3. Telegraphs and Telephones (§ 37) — Delivery of Messages — Special Contracts.
    In the absence of a special contract, a telegraph .company is not liable for failure to make a delivery of a message beyond the limits of the city of destination or beyond the free delivery limits thereof.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Gent. Dig. §§ 23, 24, 29, 30, 32; Dec. Dig. § 37.]
    4. Telegraphs and Telephones (§ 74) — Delay in Delivery of Messages — Actions— Instructions.
    An instruction, in an action against a telegraph company for delay in. the delivery of a message, that it is the duty of a telegraph company to deliver all messages within its free delivery limits within a reasonable time after receiving the same and to deliver telegrams beyond free delivery limits when the required special delivery fees are paid, or when it accepts a message and agrees to deliver the same in consideration of special delivery fees being guaranteed, is objectionable as requiring a higher degree of care than the law imposes, for the company is only required to use ordinary care to make such delivery, while the instruction makes it the absolute duty of the company to deliver in a reasonable time.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 77; Dec. Dig. § 74.]
    5. Trial (§ 251) — Instructions—Issues.
    An instruction which submits an issue not raised by the pleadings or evidence is erroneous.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 587-595; Dec. Dig. § 251.]
    Appeal from District Court, Austin County; Frank S. Roberts, Judge.
    ' Action by Herman Kersten, Jr., against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    Hume & Hume, of Houston, for appellant. C. G. Krueger, of Bellville, for appellee.

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

       For opinion on motion, for rehearing, see 161 S. W. 1691.

   PLEASANTS, C. J.

This suit was brought by appellee against the appellant to recover damages for the alleged negligent failure of appellant to make delivery of a telegram received by it for transmission and delivery to appellee informing him of the death of his brother. The damages claimed are for mental anguish caused by the inability of appel-lee to attend his brother’s funeral, which it is alleged resulted from the negligence of appellant in failing to make delivery of the telegram. The telegram was as follows: “Cat Springs, Texas, Dec. 16, 1910. To Herman Kersten, Haskell, Texas. Brother Julius was killed today. Will be buried Sunday morning. Come. C. Theuman.”

The following are the material allegations of, the petition: “Plaintiff says that the defendant accepted said message for transmission and delivery to the plaintiff, and did also accept and collect the sum of 25 cents as fees or charges for sending, transmitting, and delivering said message to this plaintiff, and that by reason thereof the defendant became bound and obligated to send, transmit, and deliver said message to this plaintiff immediately, or at least within reasonable time after receiving it at its office in the town of Haskell, Tex. Plaintiff further represents unto the court that 0. Theuman, the sender of the message, did not know how far from the office of the defendant this plaintiff lived or resided, nor did he know that this plaintiff resided without the free delivery limits established by the defendant for said town of Haskell, and therefore offered, and guaranteed to pay any and all special delivery fees or charges, if- any were needed or required, to promptly deliver the aforesaid message to this plaintiff, to which the defendant’s agent replied: ‘That is all right; if any are needed you can pay later, and I will notify you of it.’ Plaintiff further represents unto the court that he and his said brother, Julius, were very much attached to each other by natural brotherly love, and that if the defendant had promptly delivered said message and telegram to him, as it was bound and obligated to do, by reason of the contract aforesaid, he would and could have received said message in time to have reached Cat Springs, Tex., the home of his said brother, in time to have attended his funeral, and that he would and could have come to attend the funeral of his said brother, and viewed his body and remains, if the defendant had promptly delivered said message and telegram to him as it had bound and obligated itself to do. Plaintiff further represents unto the court that, at the time said message and telegram was sent by said O. Theuman, and at the time it was received by the defendant at its office in the town of Haskell, Tex., this plaintiff resided near said town of Haskell, Tex., and within about 1% of a mile from the defendant’s said office in said town, and within about 100 yards of the city limits of said town of Haskell, Tex.”

It is further alleged: “That the defendant company did not notify the sender of said message that any special delivery fees were required or needed to deliver said message promptly to this plaintiff, nor did it give to this plaintiff an opportunity to pay special delivery fees, if any were really required to promptly deliver said message or telegram to this plaintiff. Plaintiff further says that, if any special delivery fees were really needed or required to promptly deliver said message or telegram to this plaintiff, the failure on the part of defendant to promptly notify the sender or sendee of the fact that it required special delivery fees to promptly deliver said message or telegram to plaintiff was culpable negligence on the part of the defendant, for which it is answerable in damages to this plaintiff. The plaintiff says that the defendant either willfully or through carelessness or negligence as aforesaid failed and refused to deliver said message to this plaintiff promptly upon receiving it at Haskell, Tex., as it should and ought to have done, and that said carelessness and negligence as aforesaid was the direct and proximate cause of his great mental pain, dire distress, and many disagreeable emotions of the mind which the plaintiff has suffered, and the wounding and lacerating of his feelings as aforesaid.”

The defendant’s answer contains a general demurrer, a special exception, a general denial, and two special pleas. The first of these pleas is, in substance, that the message was written upon a blank form furnished by the defendant upon which the following stipulation was printed: “Messages will be delivered free within one-half mile of the company’s office in towns of 5,000 population or less, and within one mile of such office in other cities or towns. Beyond these limits the company does not undertake to make delivery, but will, without liability, at the sender’s request, as his agent and at his expense, endeavor to contract for him for such delivery at a reasonable price.”'

In the second plea it is averred, in substance: That at the time the message was sent the defendant had established office hours in the town of Haskell; said hours being from 8 a. m. to 8 p. m. daily. That the message was received at Haskell at 5:55 p. m. on December 16, 1910, and the agent at ' Haskell promptly sought to find plaintiff and deliver said message, but was unable to locate him, as he was not to be found within defendant’s free delivery limits, nor within the town of Haskell, and that about 7 p. m. on said "date defendant’s agent at Haskell, having received information that plaintiff resided out in the country from the town of Haskell, sent a service message to defendant’s agent at Cat Springs, Tex., notifying said agent that plaintiff resided in the country- from Haskell and advising him that a special messenger would be required to deliver said message, and that payment of the fee for such messenger must be provided. That said service message was promptly transmitted, but that no reply was received thereto on December 16, 1910, by reason of the fact that, though the message was promptly transmitted and due diligence was used to obtain a reply, such reply could not be obtained before the office at Haskell closed under the office hours rule before mentioned.

The trial in the court below with a jury resulted in a verdict and judgment in favor of plaintiff for the sum of $1,200.

The evidence shows that the brother of the plaintiff was killed on December 16, 1910. At the time of his death he lived in the country about eight miles from the town of Cat Springs in Austin county. The message before set out was delivered to appellant’s agent at Cat Springs for transmission to appellee about 4 p. m. on December 16, 1910. At the time the message was delivered for transmission, the sender, Theuman, paid the charges for transmission to Haskell and informed appellant’s agent that he did not know how far from appellant’s office at Haskell appellee resided, and offered to pay or guarantee any charges there might be for delivery beyond the free delivery limits of appellant’s Haskell office. On this point he testified as follows: “I offered to pay any and all special delivery fees and offered to deposit the money with the agent there. He would not accept it, and he says: ‘Go on, and if there are any fees, that will be all right; you can come around here to-morrow or some other time and pay it; it will be all right.’ They never did notify me that there were any special delivery fees for the delivery of this telegram.” The message was promptly transmitted to Haskell and reached appellant’s office there in a short time. When it was transmitted, the agent at Cat Springs failed to notify the Haskell agent that special delivery charges were guaranteed. The agent at Haskell, after ascertaining that appellee lived outside of the town limits of Haskell and about two miles from appellant’s office at that place, telegraphed the Cat Springs office that the payment of special delivery charges was required. This telegram did not reach Cat Springs until after the office was closed on the evening of the 16th, and consequently was not received there. Not having any notice that the delivery charges were guaranteed, the Haskell agent made no further effort to have the message delivered until the next day, when he mailed appellee a notice that there was a message at the telegraph office for him. Ap-pellee first learned on Sunday, December 18th, of his brother’s death. He took the first train out of Haskell, which left there at 7 o’clock p. m. on the 18th, and he reached Cat Springs about 7 p. m. the next day. His brother was buried before appellee reached Cat Springs. Aiipellee was at home on the evening and night of the 16th. Three trains left Haskell each day, one at 7 a. m., one at 7_p. m., and one at 10 p. m. The train that left Haskell at 7 p. m. on the 18th made connections which enabled appellee to reach Cat Springs in 24 hours. It is not shown what connections were made by the other two trains, nor how long it would have taken to make the trip if appellee had taken either of these trains. The evidence fails to show when or where appellee’s brother was buried.

The first assignment of error complains of the verdict on the ground that it is not supported by the evidence, in that there is no evidence that appellee could and would have taken the train from Haskell in time to have reached Cat Springs before his brother’s burial, and no evidence that he could have been present at his brother’s funeral at the time and place it occurred had the telegram been promptly delivered.

We think this assignment must be sustained. The fact that appellee made the trip in 24 hours by taking the 7 p.'m. train on the ISth is sufficient to justify the conclusion that he could have made the trip in the same length of time if he had taken the 7 p. m. train on the 16th or 17th, and if he had done so he would have reached Cat Springs on the evening of the 17th or 18th; but we think it would be only a surmise or conjecture to conclude from this evidence that he could have made the trip in 24 hours if he had taken either of the other trains. But granting that the evidence is sufficient to show that he could have reached Cat Springs within 24 hours by taking any one of the daily trains out of Haskell, and that he might have gotten to Cat Springs as early as 7 p. m. of the 17th, still, in the absence of any evidence as to when and where the brother was buried, we cannot say that he could have reached his brother before his burial. We do not think we are justified in concluding that the deceased was buried on Sunday, the 18th, from the fact that the telegram sent on the 16th informed appellee that the burial would occur on the 18th. The mere fact that it was intended on the 16th that the burial would take place on the 18th does not show that the burial did occur on the last-named date. The time and place of the burial were matters susceptible of positive and exact proof and were facts necessary to be established in order to show that appellee could have been present at the funeral had the telegram been promptly delivered. As we view the evidence, it is clearly insufficient to establish the time and place of the burial, and at most raises only a surmise or conjecture that the burial occurred on the 18th of December, and there is not even an intimation as to where it occurred. Courts are not authorized to act upon evidence of this kind, especially when it is apparent that the facts sought to be so proven can be established by direct and positive evidence.

We do not agree with appellant in the contention, made under its second assignment of error, that the pleading and evidence in this case fail to show a contract on appellant’s part to deliver the telegram to appellee at his home outside of the limits of the town of Haskell. The petition before set out alleges, in substance, that the appellant accepted the message for delivery to appellee with the knowledge that his exact place of residence was unknown to the sender of the message, and accepted the sender’s guaranty that any special delivery charges which might be required in event appellee resided beyond the free delivery limits at Haskell would be paid. This is an allegation of a special contract, and, giving full effect to the stipulations printed on the back of the message that “beyond the free delivery limits (at Haskell) the company does not undertake to make free delivery, but will, without liability, at the sender’s request, as his agent and at his expense, endeavor to contract for him for such delivery at a reasonable price,” appellant became bound and obligated upon the receipt of the message at Haskell “to endeavor to contract for its delivery at a reasonable price.” The evidence fully sustains the allegations of the petition in regard to the special contract for delivery and fails to show that appellant made any endeavor to contract for the delivery of the telegram. The fact that appellee lived a short distance beyond the limits of the town of Haskell does not affect appellant’s liability under the contract The cases of Klopf v. Tel. Co., 100 Tex. 540, 101 S. W. 1072, 10 L. R. A. (N. S.) 498, 123 Am. St. Rep. 831; Tel. Co. v. Byrd, 34 Tex. Civ. App. 594, 79 S. W. 40; Tel. Co. v. Swearingen, 95 Tex. 420, 67 S. W. 767; Tel. Co. v. White, 149 S. W. 791; Tel. Co. v. Shockley, 57 Tex. Civ. App. 30, 122 S. W. 945; and Tel. Co. v. Carter, 156 S. W. 332 — cited by appellant, do not sustain its contention. No special contract for delivery was alleged or proven in any of these cases except the Carter Case, and the only special contract in that case was an agreement on the part of the sender of the message to pay the charges of a connecting carrier which the court held was not sufficient to make the telegraph company liable for the negligence of the connecting carrier, a telephone company, in failing to deliver the message.

Of course, in tile absence of a special contract, the company would not be liable for failure to make delivery beyond the limits of the town or city to which the message was sent, nor beyond the free delivery limits in such town or city, and this is the extent of the holding in the cases cited.

This conclusion disposes of the questions presented by the third, fourth, fifth, and sixth assignments of error, and each of them is overruled.

The seventh assignment complains of the following paragraph of the court’s charge: “You are charged that'it is the duty of a telegraph company to deliver all messages within its free delivery limits within a reasonable time after it receives same, and also to deliver telegrams beyond its free delivery limits when the required special delivery fees are paid, or when it has accepted a message and agreed to transmit and deliver same in consideration of special delivery fees being guaranteed to be paid.”

This charge is objectionable on the ground that it requires a higher degree of care on the part of appellant than the law imposes. Appellant was not under the absolute duty to deliver the telegram in a reasonable time, but was only required to use. ordinary care to make such delivery. Telegraph Co. v. Grocery Co., 126 S. W. 1172.

The paragraph of the charge complained of by the eighth assignment is also erroneous, in that it submits an issue not raised by the pleadings or the evidence. There is 'no evidence that appellant’s agent at the time he accepted the message for transmission was informed that appellee lived outside the limits of the town of Haskell, nor is there any allegation of this kind in the petition, and issue of whether the agent was so informed should not have been submitted to the jury.

What we have said disposes of all the material questions presented in appellant’s brief. For the errors indicated, the judgment of the court below is reversed, and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: McMEANS, J.

license: Public Domain

text:
    KIRBY LUMBER CO. v. STEWART.
    (Court of Civil Appeals of Texas. Galveston.
    Nov. 4, 1913.
    Rehearing Denied Dec. 18, 1913.)
    1. Boundaries (§ 40) — Cales—Ambiguities —Question for Jury.
    Where a latent ambiguity in a call for a boundary arises because the proof shows that a ■line run in accordance with the call will not reach the corner called for, the manner of ascertaining the true corner is for . the jury.
    [Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 196-204; Dec. Dig. § 40.]
    • 2. Boundaries (§ 37) — Evidence — Sum-oienoy.
    In an action for cutting and removing timber from a tract of land, evidence on the issue of boundaries held to show that the timber was cut and removed from a tract of plaintiff.
    [Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 184-194; Dec. Dig. § 37.]
    3. Evidence (§ 230) — Declarations—Admissibility.
    The testimony of a grantor that before the execution of the deed to the grantee he, with the grantee’s agent, went on the ground, and pointed out the boundary lines, is inadmissible, against a subsequent purchaser of the grantee; the deed being duly recorded, and the subsequent purchaser relying on the description therein without knowledge of the facts.
    [Ed. Note. — For other cases, see Evidence. Cent. Dig. §§ 835-851; Dec. Dig. § 230.]
    4. Appeal and Error (§ 1053) — Harmless Error — Erroneous Admission op Evidence.
    The error in • admitting improper evidence is not ground for reversal’where the court specifically withdrew it from the jury, and directed the jury not to consider it for any purpose.
    [Ed. Note. — For other cases, see Appeal and Ex-ror, Cent. Dig. §§ 4178-4184; Dec. Dig. § 1053.]
    Error to District Court, Tyler County; W. B. Powell, Judge.
    Action by W. T. Stewart against the Kirby Lumber Company and others. There was a judgment for plaintiff against the defendant named and in favor of codefendants, and the defendant named brings error.
    Affirmed.
    See, also, 141 S. W. 295.
    Andrews, Ball & Streetman, of Houston, for plaintiff in error. Joe W. Thomas, of Woodville, for defendant in error.

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

   McMEANS, J.

W. T. Stewart brought this suit against the Kirby Lumber Company, J. R. Chapman, and D. G. Mann to recover damages in the sum of $2,473.20, for timber alleged to have been cut and removed from a certain 24%-acre tract of land in Tyler county, and for the alleged injury and destruction of other timber on said tract, and for alleged injury to the land itself through the hauling and dragging of logs thereover. The defendants each pleaded the general denial, and the Kirby Lumber Company in addition vouched in its remote warrantors, 5. A. Hawthorne and M. J. Hawthorne, and prayed for recovery over against them in the event plaintiff recovered against.it. Subsequently the Kirby Lumber Company dismissed its action against said remote war-rantors, and thereafter a trial before a jury resulted in a verdict in favor of defendants Chapman and Mann, and against the Kirby Lumber Company in favor of the plaintiff, Stewart, for the sum of $275, from which the Kirby Lumber Company has appealed.

The 24% acres of land in question is a part of a tract of 200 acres described in a deed from Wm. Neyland to R. C. Fulgham. On the western side of the 200-acre tract there are two lines running north and south and paralleling each other, and the 24%-acre tract is that lying between these two lines. The 200-aere tract was conveyed by Fulgham to S. A. Hawthorne, and under Hawthorne both appellee and appellant claim in the fol-iowing manner: (a) On June 21, 1902, Hawthorne and wife and the said Fulgham conveyed to W. W. Wilson the timber on 100 acres of the 200-acre tract, describing the 100 acres by metes and bounds, and Wilson’s title passed to the Kirby Lumber Company. (b) On October 31, 1906, after the aforesaid conveyance had been duly recorded, Hawthorne and wife conveyed the 200 acres of land to W. B. Fondren and wife, and the parties last named afterwards conveyed the same to appellee, W. T. Stewart. The description in the timber deed from Hawthorne and wife and Fulgham to Wilson is as follows: “All of the timber standing, lying, and growing upon the following described tract or parcel of land lying and being situated in Tyler county, Texas, and a part of the Wm. Campbell league in said county and state, containing 100 acres more or less, and being a part of the same tract of land conveyed to me, the said S. A. Hawthorne; by R. F. Fulgham, on the 31st day of December, A. D. 1897, and described as follows: Beginning at the northeast corner of said tract; thence west to the northwest corner of said tract; thence south to where the present farm fence now stands; thence in an easterly course with said fence to Wolf creek; thence down said creek to where the east line of said tract crosses said creek; thence north to the place *of beginning — and for further description reference is hereby made to land records of Tyler county in Book J, page 525.” By the terms of the timber deed Wilson and his heirs were given the right of ingress and egress to and from all portions of said land and the adjoining lands for the purpose of cutting and removing the timber.

Appellee’s contention is that the west line of the 100-acre tract described in the timber deed was the interior one of the two lines running north and south on the west side of the 200-aere tract, and not the exterior line.

By its first assignment of error plaintiff in error complains that the court erred in refusing to give its special charge No. 1, which was a peremptory instruction to find for the defendant. It contends in its proposition under this assignment that the charge should have been given for the reason that under the undisputed testimony the timber deed to the Kirby Lumber Company included within its bounds all of the 24% acres described in plaintiff’s petition, from which the evidence showed the defendant Kirby Lumber Company cut the timber.

The evidence shows that the Kirby Lumber Company, in cutting the timber on the 100 acres, at first took only that east of the interior western line, and it is evident, we think, that its agents acting for it in the premises believed that line to be the true west boundary line of the tract. Later, on surveying a tract of land lying west of the 100-acre tract, the exterior or most western northwest corner of the 100 acres was discovered, and the evidence indisputably shows, we think, that that corner is the true northwest corner of the tract. By the terms of the timber deed the timber was sold on 100 acres to be taken out of the northern part of a 200-aere tract of land which had for-its beginning point the northeast corner of the tract. The line runs thence west to the northwest corner of the 200-acre tract, and under this call the Kirby Lumber Company had the right, under the facts of this case, to take the timber to the true northwest corner, although the seller and the agents of the Kirby Lumber Company at the time of the purchase believed that the interior line was the true west boundary line. The next two calls in the timber deed is “thence south to where the present farm fence now stands; thence in an easterly course with the fence to Wolf creek.” The call for the western line is not at all ambiguous; but a latent ambiguity arose when attempt was made to reach the farm fence “as it now stands” (1902) by a line run south from the north-west Corner, because the proof shows that a line so run would not reach the fence at all, but would pass west of the most western line of -the fence a distance of some 12 or 15 feet. This ambiguity being disclosed, the matter of ascertaining the true southwestern corner of the 100 acres became-a question of fact for the jury. The general direction in which Wolf creek runs is east and west, and the fence surrounding the farm in 1902 was on both sides of it; but on neither the north or the south sides of the creek did the fence extend far enough west to meet a line run due south from the northwest corner, so that a line run from that corner in order to strike the fence at a point either north or south of the creek would have to be deflected to the east. It is apparent from what we have said that the Kirby Lumber' Company contends that the west line should be deflected only far enough to the east to reach the nearest point óf the fence from a line run due south from the northwest corner, which would extend the west line to a point south of Wolf creek; while the plaintiff contends that the line should be deflected far enough east to reach the fence on the north side of the creek. Both recognize the rule that the call for the fence for the southwest corner would control over the call for a line to run due south. The jury found under appropriate instructions that the southwest corner of the 100 acres was at a point on the fence north of the creek, and, if there was evidence to justify this finding, their verdict should not be disturbed. From the testimony, and from a map illustrating the situation, it appears that a line run due south would not strike the fence at all, but to reach the fence, must be deflected slightly east. After reaching the fence in this way, Wolf creek would be reached by following the fence in an easterly course. The defendant contends that from the point thus reached Wolf creek would constitute the south boundary of the 100 acres. On the other hand, plaintiff contends that it is manifest that the corner on the fence called for in the field notes was at a point north of the creek, and that the west line should be deflected far enough east to reach the most westerly point on the fence north of Wolf creek. We think plaintiff’s contention must be sustained. The map referred to shows that a line run from the northwest corner to the point on the fence south of the creek would, on account of the bends of the creek, cross the creek three times before reaching that point. From thence back to Wolf creek the fence runs in a northeasterly course, and after turning a bend in Wolf creek runs in a northwesterly direction to the creek. This takes in a small triangular piece of land in the southwest corner, south of the creek. The field notes do not call to cross the creek, and the only call for it is in the call to follow the field notes after the southwest corner is reached. If it was the intention of the parties to make the creek the west boundary of the 100 acres, it is reasonable that the call from the northwest corner would have been south to the creek, and it is not reasonable to presume in such case that they would have adopted a call for a line to cross the creek, not once, but three times. On the other hand, a line run from the northwest corner to the point which plaintiff contends is the southwest corner reached the fence north of the creek, and by running with the fence in an easterly course for the greater part of its length, and in a southerly course for a less distance, would reach Wolf creek, and the creek would not be crossed at all. The timber taken, and for which recovery was had, was that on the strip of land lying between the western line as contended for by defendant and the line contended for by plaintiff. We think that plaintiff’s contention as to the location of the line is more in consonance with the evidence, reason, and justice of the case, and the first assignment presented by defendant cannot be sustained.

The second assignment is as follows: “The court erred to the prejudice of this plaintiff in error in admitting over the objections of this plaintiff in error the testimony of S. A. Hawthorne to the effect that at the time he, with others, sold the 100 acres, more or less, to Wilson he went upon the ground with Wilson’s agent, D. G. Mann, before the deed was made, and pointed out to said Mann the timber that was being sold, and showed Mann the lines bounding said timber, and showed him a certain interior west line, and showed him that the west line of the 100 acres, more or less, would strike the farm fence north of the creek, and showed him where said line would strike the fence, as will more fully appear from this plaintiff in error’s bill of exceptions herein No. 2.”

Under this assignment we have the following proposition: “The testimony objected to was incompetent and inadmissible as against plaintiff in error, Kirby Lumber Company, because clearly res inter alias acta; the Kirby Lumber Company not being a party to said original timber deed but only a sub-vendee thereunder, and there being no testimony that D. G. Mann, who was representing the vendee, Wilson, in said timber deed, was in any sense an agent or representative of the Kirby Lumber Company, which subsequently purchased from Wilson.”

The witness Hawthorne did testify as complained in the assignment, and we think it was error to allow the testimony over the objections made to it. Its admission, however, does not constitute reversible error, for the reason that the court withdrew the objectionable testimony from the jury by instructing them to disregard it. We quote that portion of the charge: “There' is no evidence before you to show that the Kirby Lumber Company knew at the time it bought the timber on said 100 acres, more or, less, that the witness Hawthorne and D. G. Mann went upon the ground, and Hawthorne showed the lines and corners of the 100 acres of land, more or less, to H. G. Mann, at the time he bought the timber for W. W. Wils'cm, and, the deed frpm Hawthorne and wife and Fulgham to said Wilson being duly recorded in the deed records of Tyler county, Texas, at the time said company bought the timber, it had the right to rely upon the description of the land as given in said deed, and cannot be bound by the acts and declarations of said Mann and Hawthorne made by them at the time the timber on said 100 acres of land, more or less, was bought for Wilson; therefore the testimony of the witnesses S. A. Hawthorne and D. G. Mann as to where the lines and corners of the 100 acres were is withdrawn from you, and will not be considered by you for any purpose in passing upon the location of said land.”

The assignment must be overruled, as are also the third, fourth, and seventh, which present practically the same point but in different form. Neither party in their briefs, or otherwise, have called our attention to the quoted charge which eliminated the objection made to the admission of the testimony complained of. We hardly think this is fair to this court. See rule 31 (142 S. W. xiii).

What we have said in disposing of the first assignment of error sufficiently disposes of the sixth, which, with its several propositions thereunder, is overruled.

We have carefully examined the eighth and ninth assignments, and are of the opinion that neither points out reversible e'rror, and each, with the propositions thereunder, is overruled.

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

Affirmed.


author: TALIAFERRO, J.

text:
    NATIONAL AËROPLANE CO. v. McCORMICK.
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 19, 1913.
    Rehearing Denied Dec. 17, 1913.)
    Appeal and Error (§ 1133) — Statement oe Facts — Necessity.
    •In the absence of a statement of facts, hills of exception, and motion for new trial, a judgment will be affirmed, unless fundamental error appears on the face of the record proper.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4450-4453; Dec. Dig. § 1133.]
    Error to Galveston County Court; George E. Mann, Judge.
    Action between the National Aeroplane Company and Mart. C. McCormick. There was a judgment for the latter, and the former brings error.
    Affirmed.
    Maco & Minor Stewart, of Galveston, for plaintiff in error. Geo. G. Clough and Mc-Inerney & Wilson, all of Galveston, for defendant in error.

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

   TALIAFERRO, J.

This suit was for debt and foreclosure of lien upon personal property. It comes to this court without statement of facts, conclusions of fact by the trial court, or bills of exceptions, and no motion for new trial was made in the lower court.

We find no fundamental errors apparent upon the record, and the judgment is affirmed.


author: FLY, C. J.

text:
    LOUISIANA RIO GRANDE CANAL CO. v. QUINN.
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 26, 1913.)
    1. Masteb and Sebvant (§ 41*) — Breach op Contbact op Employment — Damages.
    The measure of damages for breach.of a contract of employment for a year for a monthly compensation, on the faith of which the employé incurred expense in moving, was the amount of such expense and such other damages and loss sustained, not to exceed the amount to which he would have been entitled had the contract been performed.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 12, 50-53; Dee. Dig. § 41.*]
    2. Masteb and Servant (§ 41*) — Action pob Wages — Right op Action.
    A servant employed for a year,' at a certain amount per month, on his discharge without cause has an immediate right of action for the damages accruing from the breach, though only those damages accrued at the time of the trial are recoverable.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 12, 50-53; Dec. Dig. §*
    3. Appeal and Ebbob (§ 1171*) — Appeal — Amount Awarded.
    Where the jury did not follow erroneous instruction as to the measure of damages, and it did not appear what evidence they considered in arriving at an excessive verdict, such verdict must be reversed.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4546 — 4554; Dec. Dig. 8 1171.*]
    Appeal from Hidalgo County Court; James H. Edwards, Judge.
    Action by R. E. Quinn against the Louisiana Rio Grande Canal Company. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    See, also, 160 S. W. 151.
    F. W. Kibbe and L. J. Polk, Jr., both of Brownsville, for appellant.
   FLY, C. J.

This is a suit for damages instituted by defendant in error, which, it was alleged, accrued by reason of the discharge of defendant in error without cause by plaintiff in error. Defendant in error claimed to have been employed by plaintiff in error on or about July 1, 1911, for 12 months at the rate of $100 a month and house rent and fuel valued at $25 a month; that he was discharged without cause in November, 1911, after having worked for 5 months; that the cost of moving his family from Lane City, Tex., to Hidalgo, Tex., amounted to $125 and his services for the remaining 7 months were, by. the contract, of the value of $875, which he claimed as damages. The suit was instituted on January 23, 1912, and was tried on February 16, 1912.

The court instructed the jury that the measure of damages was the expense of removal of defendant in error and his family from Lane City to Hidalgo and his salary for any time, not paid for, prior to the institution of the suit. In other words, the damages the jury were authorized to find could not have exceeded $125 expense of moving and not more than $250 for two months’ wages. The jury returned a verdict for $875, evidently the amount of salary for the remaining seven months of the year.

The measure of damages under the facts of this case, if defendant in error was hired for one year, and on the faith of that contract of hire incurred expenses in moving himself and family to Hidalgo, and was discharged without cause, was the amount of such expenses and such other damages and loss sustained, not to exceed the amount to which he would have been entitled had the contract been fulfilled.

The right to recover the damages accruing from the breach of the contract arises at once, but no more damages can be recovered than have accrued at the time of the trial. Meade v. Rutledge, 11 Tex. 44; Hassell v. Nutt, 14 Tex. 260; Railroad v. Shirley, 45 Tex. 355; Hearne v. Garrett, 49 Tex. 619; Litchenstein v. Brooks, 75 Tex. 196, 12 S. W. 975.

Appellee could not recover for any damages except those which had accrued up to the time of the trial. If appellee had withheld his suit until the expiration of the year he might, under proper conditions, have, recovered for the whole amount of salary, but it may be difficult to ascertain what his damages are when the whole time has not expired. Still it is for the jury to determine under proper instructions and the evidence what the damages amount to. Any damage that naturally grew out of the discharge of defendant in error, if wrongfully done, should be taken into consideration; the only limitation upon the amount of the damages that could be recovered being the total amount of the salary during the remainder of the year after the discharge took place.

We do not know what the jury took into consideration in arriving at a verdict, but it is evident that they did not follow the erroneous charge. Without chart or compass they found a verdict directly in the face of the charge and for an amount so excessive that appellee remitted $250.

The judgment is reversed, and the cause remanded.


author: PLY, C. J.

text:
    SAN ANTONIO & A. P. RY. CO. v. SCHENDEL.
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 26, 1913.)
    Railroads (§ 425*) — Injuries to Stock — Negligence — Proximate Cause.
    Where a railroad company cast rocks on each side of a private crossing, rendering- it difficult for animals, that negligence will not render it liable for the death of a horse, found dead near the crossing, where there was nothing to show that it had been killed by a train, or that the company’s negligence caused the injury.
    [Ed. Note. — Por other cases, see Railroads, Cent. Dig. §§ 1527-1533; Dec. Dig. § 425.*]
    Appeal from Lavaca County Court; P. H. Green, Judge.
    Action by Emil Schendel against the San Antonio & Aransas Pass Railway Company, begun in justice court and appealed by defendant to the county court. Prom a second judgment for plaintiff, defendant appeals.
    Reversed and rendered.
    Patton & Schwartz, of Hallettsville, for appellant.
   PLY, C. J.

This is a suit for the value of a horse, alleged by appellee to- have been killed, at a private crossing by a train, through the negligence of appellant. The allegation of negligence was that “the crossing at the time of the injuries hereinafter complained of was improperly, negligently, and carelessly constructed and maintained, and did not permit of the free and easy passage of cattle, horses, and other stock from part of said lands to the other part thereof.” Appellant obtained a judgment in the justice’s court for $150, which on appeal to the county court was reduced to $9.0.

It was shown that rocks had been thrown on each side of the crossing, which was a private one in a pasture, but no causal connection was shown to exist between the rocks and the death of the horse. There was no- evidence that tended to show that the horse was killed by a train, except that he was dead near the crossing. No wounds, no blood, no broken bones, were shown to have existed. It may have been exceedingly wrong and improper for appellant to place rocks at or near the crossing to sustain its embankment, which rocks made it difficult for horses or cattle to cross, but that does not indicate that the rocks had anything to do with the death of the horse. Negligence that renders any one liable for damages must be the proximate cause of the injury.

The judgment is reversed, and judgment here rendered that appellee take nothing by his suit and pay all costs in this behalf expended.


author: HUFF, C. J.

text:
    WILLINGHAM v. GEITZENAUER.
    (Court of Civil Appeals of Texas. Amarillo.
    Dec. 6, 1913.)
    1. Exchange oe Property (§ 8) — Rescission —Fraud—Evidence.
    Evidence in a suit to rescind an exchange of property held sufficient to support a finding that defendant’s representations that the title to the land to be conveyed to plaintiff was unin-cumbered, except for a $500 mortgage, were' fraudulently made.
    [Ed. Note. — For other cases, see Exchange of Property, Cent. Dig. § 10; Dec. Dig. § 8.]
    2. Exchange oe Property (§ 8) — Rescission —Fraud—Reliance on Representations— Evidence.
    Evidence in a suit to rescind an exchange of property held sufficient to show that plaintiff did not undertake to determine for himself that the title offered him was clear, but relied on the false representations made to him by defendant.
    [Ed. Note. — For other cases, see Exchange of Property, Cent. Dig. § 10; Dee. Dig. § 8.]
    Appeal from District Court, Potter County; J. N. Browning, Judge.
    Action by J. Geitzenauer against G. W. Willingham and wife. Judgment against defendant G. W. Willingham, and he appeals.
    Affirmed.
    Barrett & Jones, of Amarillo, for appellant. Cooper, Merrill & Lumpkin, of Amarillo, and Zink & Cline, of Hobart, Okl., for appellee.

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

   HUFF, C. J.

This case was tried without the intervention of a jury in the trial court. The suit was brought by appellee, J. E. Geitz-enauer, against G. W. Willingham and his wife, Ora Willingham, to rescind a contract whereby appellee had sold and conveyed to appellant lot 3, block 41, Glenwood addition to the city of Amarillo, or in tbe alternative for damages. The trial conrt, without filing conclusions of fact and law, rendered judgment against the appellant G. W. Wil-lingham for the sum of $420, in favor of the appellee, discharging Mrs. Willingham. Appeal is prosecuted in this court, by the appellant, G. W. Willingham, in which he complains of the judgment rendered.

It is urged there was no evidence showing a fraud practiced on appellee by appellant, and that there was no actual fraudulent representation, or that appellee relied upon the representations made by appellant. The facts of this case show that appellant and appellee effected an exchange of property - September 8, 1911. Appellant and his wife conveyed by deed to appellee lot 5, block 24, Hill’s addition to the city of Hobart, Okl. Appellee and wife Conveyed to appellant, by deed, lot 3, block 41, Glenwood addition to the city of Amarillo. The appellant represented to appellee that he had a good title to his lot in Hobart, except a mortgage lien for the sum of $500, which appellee was to assume; and appellee that he had a good title to his lot in Amarillo, except a vendor’s lien for the sum of $360, which appellant was to assume. The ap-pellee paid $40 cash difference in the trade. Each party claimed to have an abstract of title to their respective lots. The facts supporting the judgment warrant the finding that the abstract produced by appellant showed only a lien against the lot in Hobart for $500, secured by a mortgage; that appellee at the time of the trade, told appellant, “If you get abstract up to date and show me clear title, I will make the trade with you.” Appellant said, “Mine is all right, I believe.” The appellee said he did not know anything about it, and thought they had better go to a lawyer; that he did not “understand them abstracts.” The appellant said that it was no use to spend money. “Mine is all right, and I will show you it is all right." They then took the abstract, and went through and examined each page. The abstract then showed only a lien to secure the $500 note. The last conveyance in the abstract shows to have been filed for record the 2d day of September. Appellee testified: “We saw the date it was made out, and I had in my mind everything was all right.” The appellee, four or five days after the execution of the deeds, moved into the property at Hobart with his family. He says he thought he was getting a fee-simple title to the lot in Hobart, except the $500 lien mentioned by appellant. 1-Ie met, after his arrival at Hobart, a Mr. Bredel, and told him of his trade, and told him that he had an abstract to the property showing a lien on the lot for $500. At that time Bredel told him that was not all; that there was a judgment lien against the lot for $774; that this was the first time he knew or had heard of the judgment lien. This conversation with Bre-del was about the 15th day of September, 1911. This property was sold in November following under the judgment lien. Appellant at that time was in Hobart at the sale, but did not bid on the property or buy it in. He and appellee had some negotiations looking to a settlement, which resulted in no arrangement. They visited an attorney who in the course of the conversation said Geitzenauer had been “flimflammed” to which Willingham replied, “Well, they have slapped it on me, and I have a right to slap it onto him or some one else.”

In a few days after appellant obtained possession of the lot in Amarillo, he moved therefrom the house and placed it in another portion of the city of Amarillo. He also paid off the vendor’s lien note for $360. The facts further show that there was a judgment against appellant in the district court of Kiowa county, in which Hobart is situated, for the sum of $774, rendered on the 28th day of February, 1911, in favor of the Farmers’ & Merchants’ National Bank of Hobart, and that by the laws of Oklahoma such judgment was a lien on the lot when appellant deeded the same to appellee, the 8th of September, 1911. The facts further show that the abstract which appellant showed appellee had been brought down to the 5th day of September, 1911, by the Kiowa County Abstract Company, at the instance of one Hamilton, who at that time was negotiating for the purchase of the lot through Bredel, the then agent of appellant. The .agent paid the charges for. bringing the abstract down to the 5th of September. The abstract had beén originally prepared by this abstract company August 30, 1909, and consisted of seven pages, and the certificate of the company at that date attached was No. 4,987. On April 29, 1909, an additional certificate was made thereto, No. 5,331, and on that date there were added to the abstract two extra pages, and on September 5, 1911, the abstract company continued the abstract up to that date under certificate No. 8,291, and added thereto three extra pages, which contained an abstract of a deed from Foster to Willingham, filed for record September 2, 1911. This last certificate also showed the judgment lien against Willing-ham for $774. Hamilton refused to take the land because of this judgment lien. He returned the abstract to Mrs. Willingham, and appellant wrote a letter to Hamilton, offering to guarantee the title or make bond for title. The abstract shown to appellee on the date of the trade was identified by the president of the abstract company, Hamilton, and others, as the one made by the company and turned over to Mrs. Willingham by Hamilton, except as changed. It did not, after the change, have the last certificate, of date September 5, 1911, • No. 8,291, showing the judgment lien on the 8th of September, 1911; but that certificate was detached, and in its place tie original certificate of August 30, 1909, was put in, or changed to tie place occupied by tie certificate of September 5, 1911.

Tie evidence is sufficient to establish that appellant exhibited tie abstract to appellee in its mutilated condition, and that tie abstract did not, as shown to appellee, disclose tie judgment lien. Tie lot deeded to appellee was afterwards sold under execution issued on tie judgment mentioned above, and by order of tie court tie sale was confirmed and a deed directed to be made to one Mr. Harris, who had purchased it under tie sheriff’s sale. Tie appellant denies all of the appellee’s statements, and denies that he showed to him a mutilated abstract, and testified he notified appellee of tie existence of the judgment lien. These questions were all for tie court below, before whom tie case was tried, and we think tie evidence sufficient to support tie judgment of tie trial court.

Tie facts establish that appellant represented that his title was good, and that there was nothing against it except tie sum of §500, secured by a mortgage lien, when in fact an additional lien for tie sum of $774 was shown as a judgment lien against tie property. That these representations were fraudulent is evidenced by appellant exhibiting á mutilated abstract, which, if it had been as prepared by tie abstract company, would have revealed tie judgment lien. There could have been but one purpose in so exhibiting tie abstract, and that was to deceive appellee. Buchanan v. Burnett, 102 Tex. 492, 119 S. W. 1141, 132 Am. St. Rep. 900.

We do not think tie facts show that appellee undertook to investigate for himself tie title before he purchased the lot, but he evidently relied upon tie representations of tie appellant and tie facts as then shown by tie abstract exhibited to him, and that tie representations so made and acts in so exhibiting the abstract induced him to make the trade, which he otherwise would not have done. U. S. Gypsum Co. v. Shields, 106 S. W. 724. We think the evidence in the case sufficient to support the judgment of the trial court.

We therefore affirm the judgment.


author: RAINEY, C. J.

text:
    ST. LOUIS SOUTHWESTERN RY. CO. v. MOORE.
    (Court of Civil Appeals of Texas. Dallas.
    Nov. 29, 1913.)
    1.Damages (§ 166) — Personal Injuries— Admission oe Evidence.
    Where plaintiff’s bruises received from personal injuries were slight and he was apparently entirely well at trial, evidence as to whether a very slight bruise had not sometimes caused a cancerous wound resulting in death, and as to whether witness did not know of a school teaeher who died from a pin scratch, was not admissible.
    [Ed. Note. — Por other cases, see Damages, Cent. Dig. §§ 478, 479, 481; Dec. Dig. § 166.]
    2. Carriers (§ 321) — Passengers—Injuries —Instructions.
    A special charge that common carriers are held to the highest degree of care in operation for the protection of passengers was correct so far as it went.
    [Ed. Note. — Por other cases, see Carriers, Cent. Dig. §§ 1247, 1326-1336, 1343; Dec. Dig. § 321.]
    3. Trial (§ 252) — Instructions—Support in Evidence.
    An instruction, in an action for injuries by the falling of a coach panel, that if there was nothing about the panel which indicated that it was defective, and inspection would not have disclosed that it was likely to become Ipose or fall, the railroad company would not be liable, was properly refused, in the absence of any evidence that an experienced man ever inspected the car.
    [Ed. Note. — Por other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dee. Dig. § 252.].
    4. Carriers (§ 290) — Passengers — Inspection op Car.
    A carrier of passengers must furnish a reasonably safe car and exercise the highest degree of care to ascertain and repair defects in the car, as by furnishing an experienced inspector, etc.
    [Ed. Note. — Por other cases, see Carriers, Cent. Dig. §§ 1168, 1169, 1177, 1178, 1180, 1182-1184; Dec.- Dig. § 290.]
    Appeal from Dallas County Court; W. P. Whitehurst, Judge.
    Action by R. T. Moore against the St. Louis Southwestern Railway Company. Prom a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    D. Upthegrove, of Dallas, for appellant. Chas. P. Clint, of Dallas, for appellee.

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

   RAINEY, C. J.

This suit was instituted by appellee against appellant to recover damages foP personal injuries alleged to have been received on February 12, 1911, while a passenger on one of appellant’s trains, on account of the panel coming loose between two windows in the coach in which appellee was riding, falling against him, and injuring his head, hand, and foot. The trial resulted in a verdict for plaintiff for $175, from which appellant in due time perfected its appeal to this court

Reasons for Reversal.-

The court erred in permitting the plaintiff’s counsel to ask the witness Dr. Blackburn certain questions and allowing his answers thereto, as shown by the following bill of exception: “Be it remembered that, on the trial of this cause, Dr. Blackburn, a witness for defendant, on redirect examination, was asked the following question: ‘Do you not know that a very slight wound or bruise has sometimes caused a cancerous wound, and that such wound sometimes results in death?’ To which question the defendant then and there objected because there was no allegation in the plaintiff’s petition to warrant the introduction of such evidence, and, second, because it was immaterial and irrelevant, which objection was by the court overruled, and the witness answered that such wound sometimes produces serious results and also death. And the same witness, being further interrogated by counsel for plaintiff, was asked if he did not know of a school teacher, a citizen of Dallas county at the time, that got a pin scratch, a very slight wound, and that it resulted in death. To which question the same objection was made by the defendant as to the first above recited, and, the objection being overruled, the witness answered that he knew of a pin scratch, which was a very slight wound, resulting .in death to the teacher, whose name was mentioned in the interrogatory.”

The bruises received by appellee were slight At the time of the trial he was entirely well, and no possible danger of cancer was apparent or probable. The testimony complained of was speculative as to what might have happened. The company was liable, if at all, only for the consequences that resulted from the injury, and what happened to some other person in time past was calculated to prejudice the minds of the jurors, and it was improper to have admitted it. Railway Co. v. Powers, 101 Tex. 161, 105 S. W. 491.

The court instructed the jury that the defendant was at the time in question a common carrier, and that common carriers are held to the highest degree of care in the operation of a passenger train for the protection and safety of its passengers. Appellant objects to this charge and complains of the court’s refusal to give a special charge as follows: “The degree of care required of a railway company toward its passengers is that high degree of care that very cautious persons generally are accustomed to use in their line of business under similar circumstances. Therefore, if the jury believe from. the evidence that there was nothing about) the panel that fell that indicated it was defective, and that inspection would not disclose that it was in any way loose or likely to become so, or to fall, then the defendant would not be liable.”

The charge of the court was not error so far as it went, as the degree of care to be used in the carriage of passengers is the highest; but, when the defendant has asked a charge conveying to the jury a definite standard for the conduct of prudent and skillful carriers in like situations, it should be given if said special charge is otherwise correct. Railway Co. v. Keeling, 102 Tex. 521, 120 S. W. 847.

The special charge asked was incorrect in the latter clause thereof, where it tells the jury, in effect, that if there was nothing in the panel that would indicate by inspection that it would fall, etc., to find for the defendant. We think this was error. There was no evidence that an inspection of the car was ever made by an experienced car man, which we think was the duty of appellant to have made.

A carrier of passengers is under obligations to furnish a reasonably safe ear in which to ride, and it will not be relieved of the consequences of a panel falling unless it has shown the highest degree of care of ascertaining defects in its car and repairing the same. Until this care is shown on the part of the carrier, the presumption will arise that it has not done its duty, and the doctrine of unforeseen accident has no application.

The motion of the appellee to strike out appellant’s brief, because it does not conform to the rules, in that it does not direct the court’s attention to the pages of the transcript embodying its assignments of error, or the motion for new trial, etc., is overruled.

The brief is not defective to the extent that we feel justified in not considering the assignments; but we have done so, and, for the error suggested, the judgment is reversed, and the cause remanded.

Reversed and remanded.


text:
    ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. BENJAMIN.
    (Court of Civil Appeals of Texas. Dallas.
    Nov. 29, 1913.
    Rehearing Denied Dec. 13, 1913.)
    1. Damaoes (§ 105)—Action—Evidence.
    _ In an action for damages for .the firing of plaintiff’s household goods, .plaintiff is competent to testify as to the value of the use of the goods to him, where the goods had no market value at the place of loss; such testimony not being as to what plaintiff could have sold them for, or what he would have taken for them.
    [Ed. Note.—For other cases, see Damages, Cent. Dig. §§ 266-271; Dec. Dig. § 105.]
    2. Railroads (§ 481) — Impeachment — Rebuttal.
    In an action against a railroad company for burning plaintiff’s goods, where its witnesses testified that the engines were equipped with the best spark arresters, plaintiff is entitled to show that the engines threw sparks and started fires.
    [Ed. Note.—For other cases, see Railroads, Cent. Dig. §§ 1717-1729; Dec. Dig. § 481.]
    Appeal from Grayson County Court; J. Q. Adamson, Judge.
    Action by Ben Benjamin against the St. Louis Southwestern Railway Company of Texas. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Head, Smith, Hare, Maxey & Head and Jot Horton, all of Sherman, for appellant. J. M. McMi-llin, of Whitewright, and Chas. Crenshaw, of Sherman, for appellee.

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

   RAINEY, C. J.

Appellee sued appellant to recover damages for the burning of certain household goods, kitchen furniture, and wearing apparel, which were located in a house near appellant’s railroad track, and which were ignited by sparks of fire escaping from appellant’s engines, wbicbi destroyed said goods. The general issue was pleaded by appellant. A trial resulted in a judgment in favor of appellee for $425, from which this appeal is taken.

1. The evidence in this case was sufficient to show liability of the appellant for the destruction of the goods sued for and supports the verdict of the jury.

2. Where it is shown that goods' destroyed had no market value at the place destroyed, and the condition of the goods is fully shown, it is not error to permit the appellee and wife to testify to their opinion as to the value of the use of said articles to them. Railway Co. v. Nicholson, 61 Tex. 551; City of Dallas v. Allen, 40 S. W. 324; Railway Co. v. Dement, 115 S. W. 635; Railway Co. v. Green, 44 Tex. Civ. App. 13, 97 S. W. 531.

As said in the Nicholson Case, supra, “not a price suggested by his partiality to them, nor yet what he could sell them for, but the actual loss in money he would sustain by being deprived of such articles,” so specially adapted to the use of himself and family.

3. The appellant’s witnesses having testified that all of its engines were equipped with the best improved spark arresters, it was not error to allow appellee to show that about that time said engines threw sparks and caused other fires. Railway Co. v. Dawson, 109 S. W. 1110; Railway Co. v. Qualls, 124 S. W. 140; Railway Co. v. Wooldridge, 126 S. W. 603.

The judgment is -affirmed.


author: RASBURX, J.

text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. WESTERN AUTOMATIC MUSIC CO.
    (Court of Civil Appeals of Texas. Dallas.
    Nov. 22, 1913.
    Rehearing Denied Dec. 13, 1913.)
    1. Trial (§ 228) — Injury to Freight — Actions fob Damages — Instructions.
    The court instructed, in an action for damages to a piano in shipment, that if the piano, while in the possession of the railroad company, was injured by defendant, and the injury was directly and approximately the result of the negligence of its servants, the jury should find for plaintiff the difference in the cash market value of the piano in the condition in which it was delivered to defendant, if they found the same was in good condition, and “said piano should have arrived in at Dallas, the difference in” the cash market value of said piano in the condition in which it did arrive at Dallas. Eeld, that the instruction was not erroneous or misleading because of the quoted part; that being merely senseless and surplusage.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 509-512, 526; Dec. Dig. § 228.]
    2. Carriers (§ 132) — Injury to Freight-Presumption of Condition — Rebuttal.
    There is no presumption that property when delivered to a carrier for shipment was in the same condition as when delivered to the consignee, where there was evidence that it was in good condition when delivered to the railroad company and was damaged when delivered to the consignee.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 578-582, 605; Dec. Dig. § 132.]
    3.Carriers (§ 134) — Freight—Action fob Damages — Sufficiency of Evidence.
    Evidence, in an action for damage to a piano while being shipped on defendant’s railroad, held to sustain a finding of ownership of the piano in plaintiff.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 588-592, 607; Dec. Dig. § 134.]
    Appeal fom Dallas County Court; W. F. Whitehurst, Judge.
    Action by the Western Automatic Music Company against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Alex. S. Coke and Dawther & Pope, all of Dallas, for appellant. Wilson & Williamson, of Dallas, for appellee.

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

   RASBURX, J.

Appellee sued appellant for $500 for damages alleged to have been inflicted upon an automatic musical instrument known as a violin pianola while being transported by appellant from San Antonio to Dallas in this state, and upon trial before jury recovered verdict followed by judgment for $225, from which this appeal is taken. The verdict and judgment are sustained by the evidence, and for that reason we shall not set out any portion of the evidence, except under the third assignment of error.

The first assignment of error complains of the court’s charge defining the measure of appellee’s damage. The portion complained of is as follows: “If you find from the evidence that said piano, while in transit in the possession of the defendant, its agents and employSs, was broken and injured by the said defendant, and you find that said injury to said instrument was directly and approximately the result of negligence of the defendant, its agents or servants, then you will find for the plaintiff against the defendant, the difference in the cash market value of said piano in the condition said piano was delivered to the said defendant at San Antonio, Tex., if you find same was in good condition and (said piano should have arrived in at Dallas, the difference in) the cash market value of said piano in the condition in which it did arrive at Dallas, Texas.” It will be observed that certain words in the charge are parenthesized. This arrangement is ours. In the charge the words were not so separated, but were an uninterrupted and continuous part of the charge. Our purpose in separating the words as we have is to show that but for such words the charge, in substance at least, under'standingly and correctly presents the measure of damages, i. e., the difference in the cash market value of the pianola at the time and in the condition in which it was delivered to tlie appellant and its cash market value at the time and - in the condition it should have been delivered to the appellee. While we do not approve that portion of the charge that states that the pianola should be in the same condition when delivered to appellee at Dallas that it was in when delivered to appellant at San Antonio, for the reason that it incorporates into the charge much surplusage, yet it cannot be said that the same is in any sense erroneous, since appellee was in fact bound to prove tbe condition of the pianola when delivered to appellant at San Antonio before it was entitled to- recover any sum at all for a failure of appellant to deliver at Dallas in like condition. Nor do we think the words which we have parenthesized confused or misled the jury in consideration of the ease. They are meaningless and can in no sense be made to harmonize with the balance of the charge, and hence without force or persuasion. They neither limit nor enlarge the rule stated in the balance of the charge and have no application or relation thereto. They stand alone, are valueless, and import nothing. Further, it may be said that the verdict conclusively shows that the jury were in no sense misled thereby. Appellee sued for $500, and the testimony would have sustained a verdict for such an amount. The jury, however, only allowed $225.

The second assignment of error complains of the refusal of the court to read to the jury the following special charge: “You are instructed that, unless the piano is shown tp have been delivered to the defendant railroad in a different condition, it will be presumed as a matter of law that it was in the same condition as when delivered to plaintiff.” This charge was approved' in the exact form in which it was submitted in Missouri Pacific Ry. Co. v. Breeding, 16 S. W. 184 (Court of Appeals, Civil Cases); the court holding it should have been read to the jury for the reason that negligence or a failure to perform a duty required by law is never presumed as a fact, but must be established by evidence, and that in the case just cited there was no evidence to support the charge of negligence. From a reading of the case it will be seen that the appellate court on the issue of negligence would probably have sustained an instructed verdict. The rule announced by the requested charge is also inferentially approved in G., C. & S. F. Ry. Co. v. Holder, 10 Tex. Civ. App. 223, 30 S. W. 383. In that case this court, as applied to carriers receiving property for transportation inclosed in boxes, bales, packages, etc., not open to inspection when received by the carrier, held that the presumption was that such shipments reached destination in the same condition in which they were delivered to the carrier, and that it devolved upon the plaintiff to rebut such presumption by proof that the injury in fact resulted after the shipment was delivered to the carrier. In the case at bar, however there was ample testimony that the pianola was in good condition when delivered to the appellant at San Antonio, and in a damaged condition when delivered to appellee in Dallas. Thus, the presumption here urged was rebutted, and the rule stated in Stooksbury v. Swan, 85 Tex. 563, 22 S. W. 963, and in Missouri, Kansas & Texas Ry. Co. v. Baker, 58 S. W. 964, applies. In Stooksbury’s Case, as bearing upon the right of appellant to have read to the jury the charge under discussion, it is said in substance that, when a fact to be presumed is controverted by direct testimony, the jury may indulge or reject the presumption as the entire evidence may justify, but in all cases, if there be a conflict in the testimony, must be left to their determination under appropriate instructions by the trial judge. Hence while it may be said that the requested charge is correct as far as it goes, it does not go far enough. The jury could have been told of the presumption that was to be indulged in the absence of any evidence, but, when evidence rebutting the presumption was offered, the rule we have just stated should have been applied in order that the jury could have determined if the evidence did in fact rebut the presumption.

The third assignment of error asserts that the testimony is insufficient to establish ownership in appellee of the pianola. We conclude the evidence is sufficient. Appellee instructed Ripps, at San Antonio, to pack and ship the instrument to Dallas. For some reason Ripps consigned the shipment to himself, probably in order to insure the collection of packing and transfer charges,, but in the bill of lading was the request that the appellee be notified. Appellant itself delivered the car to appellee, and it was unpacked in appellee’s office in the presence of appellant’s claim agent for the purpose of ascertaining the extent of the injury done the car. Ripps says he shipped it to Dallas at request of appellee. Whittle, a former agent at Dallas for the Wurlitzer Company, which manufactured the pianola, testified that the instrument was shipped by said company to him and arrived at Dallas about April, 1911, from whence it was shipped by him to San Antonio, where it remained until August, when it was returned to Dallas in the manner we have detailed and delivered to appellee, of whom the witness in the meantime had become manager. In the absence of any direct attack upon appellee’s ownership of the instrument and consequent right to sue, we are of opinion that the facts and circumstances detailed are sufficient to sustain the verdict on the issue of such ownership.

The judgment is affirmed.


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    MISSOURI, K. & T. RY. CO. OF TEXAS v. LEABO.
    (Court of Civil Appeals of Texas. Dallas.
    Nov. 22, 1913.
    Rehearing Denied Dec. 13, 1913.)
    1. Master and Servant (§ 125) — Personal Injuries — Negligence.
    Where defendant’s switching foreman, directing the running of cars in the nighttime at the rate of 10 miles an hour, failed to know the condition of the track on which they were run in consequence of which there was a collision resulting in injury to a switchman, the defendant was liable, irrespective of whether the foreman actually gave the signal to go at that rate or not.
    [Ed. Note.' — Por other cases, see Master and Servant, Cent. Dig. §§ 243-251; Dec. Dig. § 125.]
    2. Appeal and Error (§ 1033) — Party Entitled to Complain.
    After judgment for plaintiff, defendant could not complain on appeal of the action of the trial court in submitting a ground of defense not supported by the evidence.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 4052-4062; Dec. Dig. § lOSS/]
    3. Trial (§ 260) — Requests — Instructions Already Given.
    A requested charge is properly refused where covered by other charges given.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.]
    4. Appeal and Error (§ 1068) — Harmless Error — Instructions.
    Where the evidence in a switchman’s action for injuries was such that only a verdict for plaintiff could have been rendered, error, if any, in an instruction as to the negligence of defendant’s foreman and yardmaster was not ground for reversal.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 4225-4228, 4230; Dee. Dig. § 1068.]
    5. Damages (§ 132) — Excessive Damages— Permanent Personal Injuries.
    • A verdict of $8,500 to a switchman whose right hip and left ankle were injured, whose elbow was dislocated, and who suffered an injury in the small of the back, which injuries were permanent, leaving him disabled to perform the duties of a switchman, was not excessive.
    [Ed. Note. — Por other cases, see Damages, Cent. Dig. §§ 372-385, 396; Dec. Dig. § 132.]
    6. Appeal and Error (§ 999) — Review—'Verdict.
    It is for the jury to determine the credibility. of the witnesses and the weight of the evidence, and, where the appellate court cannot say that they were wrong, the verdict will not be disturbed.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 3912-3921, 3923, 3924; Dec. Dig. § 999.]
    Appeal from District Court, Grayson County; W. M. Peck, Judge.
    Action by M. J. Leabo against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Alex S. Coke, of Dallas, and Head, Smith, Maxey & Head, of Sherman, for appellant. Wolfe, Wood & Haven, of Sherman, for ap-pellee.

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

   RAINEY, C. J.

This suit was brought by appellee to recover of appellant damages for personal injuries caused by the negligence of appellant’s employes. The petition, in effect, alleged that appellee was in the employ of appellant as a switchman in appellant’s freight yards west of Denison, known as Ray Switch; the switch crew was composed of a foreman, another switchman, and appellee; that an assistant yardmaster also worked in.said yards, and had charge, for appellant, of the placing of cars upon the different tracks; that appellee was known as a fieldman; that the engine with which he was working was pushing a drag of cars, and it was appellee’s duty as fieldman to go to the last car in the drag, and ride it down to where his foreman is located; that when the foreman boarded the head of the drag it was then appellee’s duty to go some six or eight car lengths back over the drag closer to the engine to receive signals from the foreman, who was to ride the front car, and communicate such signals to the engineer; that when he took his position at this point the foreman, riding the front car of the drag, gave a come ahead signal, which appellee in turn gave to the engineer; that the engineer, acting upon said signal, started the cars forward until they reached the speed of 15 miles per hour; that the foreman then gave a stop signal, which the appellee in turn communicated to the engineer, but just as appellee gave the stop signal the entire drag of cars upon which he was riding ran into and collided with another train of cars, wrecking appellee’s car, and throwing him with great violence to the track, and severely injuring him; that appellant was guilty of gross- carelessness and negligence in the following particulars:

“(a) The assistant yardmaster was guilty of gross carelessness and negligence in ordering the drag of cars upon which plaintiff was riding onto track where the same were being taken, and thereby advising plaintiff and his crew that said track was clear, and had room to receive said ears, when in truth and in fact said track was not clear, but other ears were standing thereon, and said assistant yardmaster knew, or by the exercise of ordinary care should have known, that said cars were on said track, but failed to inspect said track for said cars, and negligently and carelessly ordered plaintiff’s crew to go in upon said track with their drag of cars.
“(b) The foreman of plaintiff’s switch crew, who was riding the front end of the drag upon which plaintiff was riding, knew, or by the exercise of ordinary care should have known, that the track upon which he had thrown the switch and lined up for plaintiff’scars had other cars upon it, and with this information carelessly and negligently gave a signal to plaintiff to be conveyed to the engineer for the engineer to shove said cars forward at a rapid rate of speed, and said foreman negligently and carelessly permitted plaintiff to stand some six or seven car lengths from the end of said drag, and signal for said cars to come forward until the same reached the speed of, to wit, 15 miles an hour, knowing, or by' the exercise of ordinary care should have known, that said cars would collide with other cars located on said track, and knew that plaintiff was ignorant of said cars being upon said track, and knew plaintiff would rely upon his signals, and ride said cars down in upon said track, and failed and refused to warn plaintiff or to give any signal whatever until said cars collided with the cars as hereinbefore set out, and plaintiff was injured.
“(c) That both the assistant yardmaster and the foreman of plaintiff’s crew were guilty of gross carelessness and negligence in failing to inspect said track where they had ordered said cars to run to ascertain if the same was clear and had room for the ears which they had ordered placed thereon before ordering same sent in up said track.”

Appellant answered by general and special exceptions, general denial, contributory negligence, and assumed risk. A trial resulted in a verdict and judgment for $8,500, from which appellant prosecutes this appeal.

The material allegations of plaintiff’s petition were established by the evidence.

Appellant’s first assignment of error is: “The court erred in giving the following portion of paragraph 4 of the main charge of the jury:_ ‘If you believe from the evidence that the foreman of the plaintiff’s crew, to wit, J. S. Shaw, knew, or by the exercise of ordinary care should have known, that the track upon which he was attempting to place said cars had other cars upon it, and, so knowing, gave a signal to plaintiff' for him to convey to the engineer to shove said cars forward at a rapid rate of speed, and if you further believe from the evidence that said foreman permitted said cars to be shoved and pushed at a rapid rate of speed, so that said cars collided with other cars located on said track, and if you further believe from the evidence that, in giving said signal to move said cars at a rapid rate on said track under the circumstances, said foreman was guilty of negligence as that term has been hereinbefore defined to you and that such negligence, if any, was the direct and proximate cause of plaintiff’s injury, you will, in either of said events, find for plaintiff, and assess his damages as hereinafter directed, unless you find for defendant under other instructions given you.’ ”

The contention is that “there was no evidence in the record warranting the submission to the jury of an issue as to whether appellant’s foreman, J. S. Shaw, gave a signal to be conveyed to the engineer for said engineer to shove the cars forward at a - rapid rate of speed, and appellant’s liability in this case should not have been made to depend upon the determination of such an issue.”

The evidence shows that this accident occurred at night; that Shaw was foreman, and appellee performed his work under Shaw’s direction; William Clayton was assistant yardmaster; it was Clayton’s duty to know the condition of the yard, and the foreman, Shaw, is responsible for all the cars he handles; he was handling cars the night in question, and it was under his direction the cars were being placed; he ought to have known what he was doing, if he did not; the cars were being transported at the rate of 10 miles an hour, which was a rather rapid rate in the nighttime, and upon the track the condition of which as to other cars was unknown; the manner of handling the car shows such negligence of appellant’s employés for which appellee is in no way responsible; that it shows appellant was liable irrespective of whether Shaw actually gave a rapid signal or not; he was controlling the train, and should not have permitted it, under the circumstances, to run in on the track.

Appellant’s second assignment is: “The court erred in giving the following portion of paragraph 5 of the main charge to the jury: ‘On the other hand, if you believe from the evidence that defendant’s assistant yardmaster did inspect the track for cars, and that he did not know, and in the exercise of ordinary care he could not have known, that there were cars on said track, or that there was not room on said track for said drag.’ ” The foregoing assignment is an excerpt from the fifth paragraph of the court’s charge, in which the court was instructing on the ground of defense, and, if it should not be supported by the evidence, it affords no reason for complaint by appellant. Burns v. True, 5 Tex. Civ. App. 74, 24 S. W. 338.

There was evidence, however, that it was the duty of the assistant yardmaster to know the condition of the track, and that Shaw, the foreman, was misled by the statement of Clayton that there was room enough for the drag of cars to be placed upon said, track.

What we have heretofore said disposes of assignments 3 and 4.

The fifth assignment is based on the refusal of the court to give the following charge, to wit: “Unless you believe from the evidence that defendant’s assistant yardmaster, (Clayton, in directing defendant’s foreman, Shaw, to place the cars on track No. 2, where the collision occurred, was guilty of negligence, that is, did that which an ordinarily prudent man would not have done under the circumstances, or unless you believe that defendant’s foreman, Shaw, in directing his fellow employés to place said cars on said track No. 2, where the collision occurred, was guilty of negligence in doing as he had been directed to do by the assistant yardmaster, that is, that he did that which an ordinarily prudent person would not have done under the circumstances, then you will find that the defendant was not guilty of negligence, and that plaintiff’s injuries were the result of an accident for which the defendant is not liable, and, unless you so find, you will return a verdict in favor of the defendant.”

The court, in its main charge, submitted to the jury: “* * * Or if you do not believe from the evidence that said assistant yardmaster and said foreman, or one of them, were guilty of negligence, as that term has been defined to you, * * * in either of these events you will find for the defendant.” This, we think, was sufficient under the circumstances, as it covered the special charge. If it should be considered not sufficient, we think the evidence is such that no other verdict should have been rendered.

The sixth assignment complains that the verdict is excessive. The evidence shows that appellee was injured in his right hip, loft ankle, the dislocation of one elbow, and an injury in the small of his back, and that his injuries are permanent, and that he has not physical force or energy now to perform the duties of a switchman.

It is the peculiar province of the jury to determine the credibility of the witnesses, and weigh the evidence.. They have done so in this case, and we are, under the evidence, unable to say they were wrong.

Finding no reversible error in the record, the judgment of the court below is affirmed.