author: MOURSTJND, J.

text:
    OLIVER et al. v. SMITH, County Treasurer, et al.
    (No. 5744.)

    (Court of Civil Appeals of Texas. San Antonio.
    June 7, 1916.
    Rehearing Denied June 30, 1916.)
    1. Schools aeb School Districts <&wkey;36— Reducing Area — Power’ of Trustees'.
    That a maintenance tax has been voted in a common school district does not affect the power of the county school trustees to reduce the district’s area.
    [Ed. Note. — For other eases, see Schools and School Districts, Cent. Dig. § 5914; Dec. Dig. <&wkey;36.]
    2. Schools and School Districts <&wkey;36 — Change of Boundaries — Quo Warranto.
    Any power of the district court to correct any abuse of discretion of county school trustees, in taking territory from one common school district and adding it to another, can be exercised only in a quo warranto proceeding instituted in the name of the state, or by some individual, under the authority of the state, who has a special interest affected by the change.
    [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. § 59[4 ; Dee. Dig. <&wkey;>36.]
    3. Injunction &wkey;5ll4(l) — Proceeding to Declare School District Invalid — Parties.
    To proceedings to declare invalid common school districts, as established by county school trustees through change of boundary, the trustees of the districts, by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2822, constituted bodies corporate, are necessary parties.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. § 202; Dec. Dig. <&wkey;114(l).]
    4. Parties <§=^84(4) — -Defect—Demurrer.
    Omission of necessary parties is a defect rendering a petition subject to general demurrer.
    [Ed. Note. — -For other cases, see Parties, Cent. Dig. §§ 186-138, 141, 142; Dec. Dig. &wkey; 84(4); Pleading, Cent. Dig. § 494.]
    5. Schools and School Districts <&wkey;30 — Territorial Limits.
    A common school district, as established by the county school trustees, by adding territory so that the farthest line thereof is more than four miles from its center, contrary to Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2815, can have no legal existence.
    [Ed. Note. — For other cases, see 'Schools and School Districts, Cent. Dig. § 50; Dec. Dig. &wkey;30.]
    Appeal from District Court, Frio County; J. F. Mullally, Judge.
    Suit by J. G. Oliver and others against O. L. Smith, County Treasurer, and others. From an adverse judgment, plaintiffs appeal.
    Affirmed.
    Hicks, Hicks, Teagarden & Dickson, of San Antonio, for appellants. S. T. Phelps and
    R. W. Hudson, both of Pearsall, for appel-lees.

      Application for writ of error pending in Supreme Court.

   MOURSTJND, J.

This is an appeal from an order dissolving a temporary injunction which had been granted on the petition of J. E. Bandy, J. G. Oliver, B. F. Cude, Arch Dunlap, and Ed. Beidiger, filed February 22, 1916, complaining of O. L. Smith, county treasurer, B. E. Coleman, county collector, S. T. Dowe, county superintendent of schools, B. O. Yining, G. O. Harrison, O. E. Milam, W. E. TViekware, and H. E. Johnson, the last five named being the county school trustees of Frio county. The plaintiffs alleged that said county school trustees on December 14, 1915, willfully, improperly, and illegally attempted to create out of a portion of school district No. 2, which had theretofore been legally established, another district, and to attach same to a district in Medina county known as common school district No. 16, for the purpose of creating a county line district. They alleged that the county school trustees acted contrary to the best interests of school district No. 2, and without authority of law, because there had been voted a school tax in said district, which the patrons of the school were entitled to have applied to the best interests of said district No. 2, and to the maintenance and operation of the schools in said district as is provided by article 2836, Vernon’s Sayles’ Statutes. It was also contended that, by virtue of article 2815b of Vernon’s Sayles’ Statutes, in case of an existing tax upon a common school district, a part of which may be added to a common county line district, the tax is required, when collected, to be diverted to the benefit of such common county line district. The court, pursuant to plaintiffs’ prayer, granted an injunction restraining—

“the defendants in said application from, in any manner, diverting or attempting to divert the school funds or any part thereof collected, levied, or charged against the territory in Frio county as set forth in Exhibit A to said pleading, on property therein, or any funds on said territory arising by taxation, from common school district No. 2, of Frio county, Tex., and further enjoining said defendant school trustees from doing any act or thing attempting to carry into effect the division or change of said territory mentioned in Exhibit A to said pleading from common school district No. 2.”

On March 6, 1916, J. E. Bandy, one of the plaintiffs, withdrew from the suit as a party plaintiff. On March 7, 1916, the county school trustees of Frio county, Tex., a corporation, made itself a party to the suit, and, together with defendants Vining, Harrison, and Wickware, county trustees, who acted in their individual capacity, filed an answer, duly verified, consisting of a general demurrer, various special exceptions, a general denial, and a special answer, the substantial allegations of which will be stated. Defendants alleged that on April 14, 1913, the county commissioners’ court of Frio county entered an order fixing the boundaries of common school districts, and that the boundaries so fixed had never been legally changed in any manner so far as the same affect common school districts Nos. 2 and 10, the territory involved in this suit, and that said two districts, ever since said date, have had a board of trustees duly organized and charged with the management of said school districts under the law; that on August 28, 1915, the county school trustees, without notice to the inhabitants of, or the president of, District No. 10, and without any petition signed by a majority of legally qualified electors of said district, made an order abolishing said district and dividing its territory between districts 2 and 9. This order was copied in the answer, and it appears therefrom that the change was to be made “on certain defined lines,” and the county surveyor was ordered to prepare the field notes clearly defining the changes and giving the boundaries of districts 2 and 9 as reconstructed, and that such field notes be duly recorded in the commissioners’ court minutes. Defendants then alleged that said order was the only order ever made with reference to the subject-matter therein mentioned, and that such order was never recorded as required by law, and that no order giving the boundaries of districts 2 and 9, as they were to be reconstructed, has ever been made or recorded as required by law; that, if such boundaries had been established, the geographical center of district 2 would have been more than four miles from the farthest line of such district, and that Frio county has a population of less than 10,000, inhabitants. Defendants alleged, further, that on December 14, 1915, tlie county school trustees, at a regular meeting, rescinded the action taken on August 28, 1915, and reestablished the boundaries of district No. 10 as they existed prior to August 28, 1915. A copy of this order was attached to the answer as an exhibit, and it was alleged that such order had been duly entered in the minutes of said county school trustees; that on May 13, 1908, the commissioners’ court of Erio county, by an order duly entered on the minutes, authorized the levy, assessment, and collection of a tax at the rate of 15'cents on each $100 valuation of property in district No. 2, for the purpose of paying interest on a bond for $800, issued by said district, and to provide sinking fund for payment thereof, which levy was made by virtue of an election duly held in said district; that on July 31, 1915, another election was held in said district No. 2, at which it was determined to issue bonds and levy a tax, and by virtue thereof on November 8, 1915, the commissioners’ court entered an order levying a tax of 13% cents on the $100 valuation of property in said district; that, when these elections were held, no part of the territory embraced in district No. 10 was contained in such district No. 2; that on May 22, 1912, by order entered by said commissioners’ court, pursuant to an election held in said district No. 2, the maintenance tax was increased to 35 cents on each $100 valuation of property in said district; that said maintenance tax and bond taxes aforesaid aggregate 53% cents on the $100 valuation of property in said district, which is in excess of the amount permitted by law; that on November 20, 1915, at an election held in district No. 2, it was determined that a tax of 50 cents on the $100 valuation of property in the district should be levied for maintenance purposes, and on December 13, 1915, the commissioners’ court canvassed the returns and declared the tax to have carried, and decreed that the court was authorized to levy, and have assessed and collected, annually, said tax; that such tax is null and void for the reason that there had been theretofore levied, in said district, taxes exceeding 50 cents on the $100 valuation of property; that, prior to the time said tax was voted, the tax rolls had been delivered to the collector, and said tax could not have been assessed or collected until the year 1916; that no taxes have been collected upon the territory known as district No. 10, and defendants have never sought or attempted to take any part of any taxes levied, assessed, and collected for the benefit of district No. 2, and divert same to district No. 10, or to the county line district composed of district No. 10 and district No. 16 of Medina county. Defendants prayed that the temporary injunction be dissolved, and that plaintiffs take nothing, etc.

On April 5, 1916, the defendants, who had appeared and answered, filed a formal motion to dissolve the temporary injunction wherein they referred to their sworn answer, and stated two reasons relied upon to procure the dissolution of the injunction, as follows: '

“(1) Because the plaintiffs named in said petition lack capacity and interest to maintain this suit.
“(2) Because there are no equities shown by plaintiffs’ bill, which have not been fully controverted in defendants’ answer.”

On April 7, 1916, the judge enteied an order dissolving the temporary injunction, but granted a stay until the appeal should be disposed of, except that the injunction should in no wise prevent the building of a new schoolhouse in the territory described in plaintiffs’ petition as “Exhibit A,” being that part of district 10 which had been added to, and afterwards taken from, district No. 2. The order contains a recital to the effect that the court is of the opinion that ground No. 1 stated in the motion was well taken, and therefore the injunction should be dissolved. All of the plaintiffs, except Bandy, who had withdrawn from the suit, joined in perfecting an appeal.

If, upon a consideration of the petition and answer, the injunction should have been dissolved, the judgment must be affirmed, regardless of whether the court placed his decision upon the correct ground.

Plaintiffs seek to set aside and hold for naught the order by the comity trustees reestablishing district No. 10, whereby a portion of the territory embraced in district No. 2, at the time the 50 cents maintenance tax was voted on November 20, 1915, was taken out of said district. It is not alleged that any bonds had been issued in district No. 2, while said territory was a part thereof, nor is it alleged that either district No. 2, or district No. 10, as finally established, was not laid out for the convenience of the scholastic population. This is not a suit to compel the county trustees to redistrict in order to create districts convenient for the scholastic population, in other words to compel them to perform the first duty enjoined upon them by article 2817, Vernon’s Sayles’ Statutes. It is a suit having for its object the annulling of districts 10 and 2 as created by the county trustees, on the ground that a maintenance tax was voted in district No. 2 before it was changed. We are not referred to any statute which prohibits taking territory from a district in which a maintenance tax has been voted. Plaintiffs alleged the tax had been voted, but failed to allege that it had been levied, and the order declaring the result of the election, a copy of Which is attached to the answer, shows that the commissioners’ court did not undertake to levy the tax but merely decreed that it was authorized to levy the tax. The very next day the territory, formerly a part of district No. 10, was taken from district No. 2. It is not shown that any tases so voted had been levied, and there is nothing in the claim that tases accrued to district No. 2 would be diverted from such district. In fact, the theory appears to be that the commissioners’ court will probably levy the maintenance tax upon all property within the boundaries of district No. 2, at the time the tax was voted, regardless of the fact that such district had been reduced in area by an order of the county trustees. We think the matter of diversion of funds may be eliminated from consideration.

The case reduces itself to one in which plaintiffs rely upon the fact that a maintenance tax was voted in a common school district, to defeat the order reducing the area of such district. Did the county school trustees have the power to make the order? We are not referred to any statutory prohibition against such a change in a district, nor do we find any, although we do find that a reduction in area is prohibited when bonds have been issued and are outstanding. The Legislature knew that taxes for maintenance would be voted in more districts than for bond issues, but did not see fit to prohibit the reduction in area of such districts. We therefore conclude that the county school trustees had the power to make the change. We are unable to determine from appellants’ argument, filed in lieu of brief, whether the contention is that the county school trustees were without power to make the change, or whether it is that, in making the change under the circumstances pleaded, said county trustees abused the discretion vested in them, and that the district court in the exercise of its revisory power should correct such abuse of discretion by setting it aside. The trial court doubtless understood the latter to be the contention relied upon, and therefore held that plaintiffs did not have capacity to maintain the suit. We have heretofore expressed the opinion that, if the district court has the power in the exercise of its supervisory control to declare an order void, because the district was not laid out for the convenience of the scholastic population thereof, it is clear that such power could only be exercised in a quo warranto proceeding instituted in the name of the state or by some individual under the authority of the state, who has a special interest which is affected by the existence of the school district. Minear v. McVea, 185 S. W. 1048, not yet reported. We think the same rule should be applied in this case, wherein it is also sought to have certain districts declared invalid, because of alleged abuse of discretion on the part of the county trustees. Said districts are bodies corporate under our statute, and we see no reason why a different rule should be applied than was applied by our Supreme Court in the ease of Crabb v. Celeste Ind. School Dist., 105 Tex. 194, 146 S. W. 528, 39 L. ft. A. (N. S.) 601, wherein it was held that the above-stated rule applied to an independent school district, to which territory had Been annexed, which annexation was sought to be set aside and declared invalid. The court did not err in holding that plaintiffs, in the capacity in which they sued, could not maintain a cause of action on the grounds stated, for the purpose of annulling districts Nos. 10 and 2 as established by the county school trustees on December 14, 1915. Parker v. Drainage Dist., 148 S. W. 351; Davis v. Parks, 157 S. W. 449; Cochran v. Kennon, 161 S. W. 67; Cohen v. City of Houston, 176 S. W. 809; Wilson v. Brown, 145 S. W. 641.

It appears that, if plaintiffs could maintain the suit, the trustees of the county line district and district No. 2, who are constituted bodies corporate by article 2822, Vernon’s Sayles’ Statutes, are necessary parties, for it is proposed to destroy the existence of such bodies corporate. Renshaw v. Arnett, 158 S. W. 1197. The omission of necessary parties is a defect rendering a petition subject to general demurrer. Minear v. McVea, supra, and authorities therein cited.

If the power of the district court extends so far as to permit it, in the exercise of its supervisory power, to declare invalid certain districts, because it is not deemed to the interest of the scholastic population thereof to have a district reduced after it has voted a maintenance tax, it appears to us that, if the plaintiffs had the capacity to bring such suit and the necessary parties were before the court, the sworn answer of defendants stated facts showing conclusively that the injunction should have been dissolved. The defendants alleged that the territory in which the tax flection was held on November 20, 1915, wa's never legally created into a school district; that it could not have had any legal existence as a school district because the farthest line thereof would have been more than four miles from the geographical center in a county having less than 10,000 population, contrary to the provisions of article 2815, Vernon’s Sayles’ Statutes. They also alleged that a portion of such territory formerly composing district No. 2, and composing district No. 2, as finally established by the county trustees, had, prior to the attempt to add part of district No. 10 thereto, voted upon itself greater taxes than were permitted by law, and that therefore the tax election held on November 20, 1915, was void. These allegations effectively answered all allegations in plaintiffs’ petition relied upon to show that the county trustees abused their discretion in entering an order re-establishing district No. 10, fixing the boundaries of district No. 2 as they were before the commissioners’ court undertook tot add, to district No. 2, a part of district No. 10.

The judgment is affirmed.
      <§£3}l?or other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      cgr^For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: SWEARINGEN, J.

license: Public Domain

text:
    MYERS v. GRANTHAM.
    (No. 5694.)
    (Court of Civil Appeals of Texas. San Antonio.
    June 7, 1916.
    Rehearing Denied June 27, 1916.)
    1. Account, Action on <&wkey;6(l) — Actions— Pleading — “Open Accounts.”
    An action on implied agreement to pay for labor performed and contract to pay commission for procuring buyer for land is not an “open account,” and pleadings need not conform to statute as to open accounts.
    [Ed. Note — Eor other cases, see Account, Action on, Cent. Dig. § 8; Dec. Dig. <§=^C(1).| Eor other definitions, see Words and Phrases, Eirst and Second Series, Open Account.]
    2. Appeal and Error &wkey;>930(3) — Presumptions.
    By specific requirement of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 19S5, if an issue made by the pleadings is not submitted to the jury, no request therefor having been made, it will be deemed to have been found by the court to support the judgment. >
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. § 3759; Dec. Dig. &wkey;930(3).]
    3. Accord and Satisfaction <&wkey;26(l), 27-Burden op Proof.
    Accord and satisfaction must be proved as any other agreement, and peremptory instruction thereon is properly refused in the face of conflicting evidence.
    [Ed. Note. — Eor other cases, see Accord and Satisfaction, Cent. Dig. §§ 31, 59, 83, 97, 110, 135, 150, 162; Dec. Dig. &wkey;26(l), 27.]
    4. Trial <&wkey;29(l) — Conduct op Court — Interrogation oe Jury.
    The court may interrogate the jury when it reports as to its answer to a special issue, in open court and in the presence of counsel for both parties. •
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 80, 508; Dec. Dig. &wkey;29(l).]
    5. Appeal and Error <&wkey;1170(l) — iScope of Review — Harmless Error.
    Under rule 62a (149 S. W. x) the court will not reverse a. judgment for errors not reasonably calculated to cause, or not causing, rendition of an improper judgment.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4032, 4066, 4454, 4540; Dec. Dig. &wkey;1170(l).]
    6. Work and Dabor <&wkey;30(2) — Reasonable Value — Question for Jury.
    Where the petition alleged that the reasonable value of services was a certain sum, the issue of reasonable value was for the jury.
    [Ed. Note. — Eor other cases, see Work and Dabor, Cent. Dig. §§ 59-62; Dec. Dig. <§= 30(2).]
    Appeal from Caldwell County Court; J. T. Ellis, Judge.
    Action by J. R. Grantham against A. E. Myers. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Fred D. Blundell, and Monroe & Richards, all of Dockhart, for appellant. Jno. N. Gam-brell and T. De Witt Gambrell, both of Dock-hart, for appellee.
   SWEARINGEN, J.

Appellee sued for compensation for services or labors rendered appellant during the year 1912 upon an implied promise by appellant to pay appellee one-hall’ the gross receipts for pasturage received by appellant from various persons who might use appellant’s pasture, which was alleged to be the reasonable value of his services. The services or labor rendered, described in general terms, was riding the pasture fence, keeping them in repair, caring for the stock pastured, and keeping the stock in the pasture. The amount sued for was $25 which was one-half of $50, the gross receipts by appellant for the year. Appellee also sued for a balance of $79.50 due on an express contract, by which appellant promised appellee 5 per cent, of the price paid by A. D. Clem, the buyer for appellant’s land. There were 900 acres alleged to have been sold for $6.50 per acre. All the commission had been paid to appellee except, as alleged, $79.50. Appellant denied both items of indebtedness, answered that he had paid all that the agreement for commission called for, and pleaded accord and satisfaction of the amount of the commission. Also set out several other defensive pleas not necessary to mention. The court submitted special issues to the jury, which answered all questions in favor of ap-pellee. Upon the jury’s verdict, after a re-mittitur of $6, the court rendered judgment against appellant for $100.91.

The first and second assignments complain that the trial court erred in overruling appellant’s exception to appellee’s petition. The exceptions to the petition were founded upon the mistaken theory that the implied agreement for services in looking after appellant’s pasture and the contract to pay appellee a commission for procuring a buyer for appellant’s land were open accounts, and that appellee’s petition was not in compliance with the statute, providing manner of pleading and proof of open accounts. Vernon’s Sayles’ O. S. art. 3712. The obligations sued on were not open accounts within the meaning of the statute (article 3712). McCamant v. Batsell, 59 Tex. 363; Railway v. Daniels, 62 Tex. 70; Ballard v. McMillan, 5 Tex. Civ. App. 683, 25 S. W. 327. The first and second assignments are overruled.

The third assignment is that the court erred in refusing to give the following requested instruction:

“You are instructed as part of the law applicable to this case that plaintiff cannot recover of defendant any amount due as commissions for the sale of land.”

The reason urged by appellant for this peremptory instruction to find for appellant appears in the first proposition as follows:

“Where a claim is unliquidated or disputed, payment and acceptance of a loss sum in satisfaction thereof operates as an accord and satisfaction.”

The issue of accord and satisfaction was made by the pleadings, and there was a conflict of evidence upon the issue. The issue was not submitted to the jury. But the submission of the issue was not requested in writing by the appellant. ■ The issue willL be

deemed by this court as found by the trial court to support the judgment. Vernon’s Sayles’ C. St. art. 1985. The facts of the case at bar did not authorize a peremptory instruction because of accord and satisfaction, because accord and satisfaction must be proven as any other agreement. Bergman Produce Co. v. Brown, 172 S. W. 554; Johnson v. Hoover, 165 S. W. 900. The testimony of appellee positively denied any agreement of accord and satisfaction; denied the claim was disputed; showed it was a liquidated claim; denied that the Hast check for an amount, plus the others, less than the whole sum claimed, was either given or accepted in full satisfaction. On the other hand, appellant’s testimony tends to show that appellant told appellee the check was in full'settlement of a disputed claim, and that appellee accepted it with that condition. This conflict in the testimony was decided in favor of appellee by the court, as shown above. The third assignment is overruled.

The fourth assignment is based upon the conduct of the court in discussing with the jury its answer to special issue No. 9 and sending the jury back for further deliberation. The court had the right to interrogate the jury as it did in open court, in the presence of counsel for both parties. There is no improper conduct of the court shown by the bill of exception. Furthermore, if error, it was not such prejudicial error as authorizes a reversal, because the issue was immaterial in this: The jury had already found that an expense contract was made between appellant and appellee for 5 per cent, commission to appellee on the price received by appellant for the land, and had already found that there were 960 acres of land which appellant sold for $6.25 per acre. This finding fixed the amount of commission, and that appellant owed it to appellee, less the payments made. The assignment shows no reversible error. Arts. 1980, 1981, Vernon’s Sayles’ C. St.; Roche v. Dale, 43 Tex. Giv. App. 287, 95 S. W. 1100; 62a [149 S. W. x] Rules for Court of Civil Appeals.

The fifth, sixth, and seventh assignments urge error in submission to the jury of three questions raised by the pleadings, but admitted and not disputed by the evidence. The jury answered them in accordance with the evidence. It is not entirely clear that the questions are undisputed, or that it was error to submit them; but even if the court should not have submitted the questions, the error did not amount to such a denial of the rights of the appellant as was reasonably calculated to cause, or did cause, the rendition of an improper judgment in the ease. Hence we cannot reverse the judgment for the errors complained of in the fifth, sixth, and seventh assignments. 62a Rules Tex, Courts of Civil Appeals. The fifth, sixth, and seventh assignments are overruled.

The error urged in the eighth assignment is that in the pleadings there was no issue of reasonable worth of the services rendered by appellee in caring for the pasture of appellant, and the court erred in submitting the issue to the jury. Appellee’s amended petition alleged that his services in caring for the pasture, fence, and stock during the year 1912 were reasonably worth one-half of all rents for pasture collected by appellant, and that appellant collected the sum of $50 for pasturage during the year. The issue was raised by the pleadings and the evidence, and was very properly submitted to the jury. The eighth assignment is ■ overruled.

The error complained of in the ninth assignment is immaterial, as will appear from our discussion of the fourth assignment.

The tenth assignment is that the court should have set aside the verdict and granted a new trial because the verdict is not supported by the evidence, but is contrary thereto. The evidence abundantly supported all the findings of the jury and the judgment. This assignment is overruled

There is no error shown in the record. The judgment is affirmed.
      &wkey;oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DANE, J.

text:
    GALVESTON ELECTRIC CO. v. HANSON.
    (No. 7186.)
    (Court of Civil Appeals of Texas. Galveston.
    May 10, 1916.)
    1. Tkial <&wkey;191(9), 253(4) — Instructions — Assumption as to Facts — Ignoring Issues.
    In an action for injuries to a woman alighting from a street car, the charges that, if the injuries were caused by the conductor’s failure to use the care of a competent and prudent man in'starting the car, verdict should be for plaintiff, but if he used such care in starting the car, or the woman caused or contributed to cause her fall by failure to use the care of a woman of ordinary prudence, verdict should be for defendant, were not erroneous as assuming the conductor’s failure to exercise proper care, and as authorizing finding for plaintiff, though the jury should find the woman was guilty of contributory negligence.
    [Ed. Note. — For other eases, see Trial, Cent. Dig. §§ 420, 430, 613, 615; Dee. Dig. &wkey;191(9), 253(4); Carriers, Cent. Dig. § 1337.]
    2. Appeal and Error <&wkey;1064(l) — Harmless Error.
    Where no harm resulted to defendant by unnecessary correction of a proper charge and re-reading it to the jury, there was no error.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4219; Dec. Dig. &wkey;5l064(l); Trial, Cent. Dig. §§ 475, 525, 528.]
    3. Appeal and Error <&wkey;742(5) — Assignment oe Error — Compliance with Rules.
    Under Rules for the Courts of Civil Appeals 29, 30, 31 (142 S. W. xii, xiii), an assignment of error to the refusal to give a charge will not be reviewed, when not followed by any proposition or statement of facts which would call for such a charge; the testimony of no witness being set out, and the Court of Civil Appeals not being referred to the page or pages of the record where such testimony might be found, no proposition following the assignment, and the only statement thereunder being a copy of appellant’s bill of exceptions to the refusal of the charge.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000 ; Dec. Dig'. @=>742(5).]
    4. New Trial &wkey;>56 — Misconduct of Jury-Harmless Error.
    That a juror stated that he had never been represented by an attorney for plaintiff, when in fact he had been so represented when charged with a misdemeanor, was not ground for setting aside the verdict for plaintiff, or for granting new trial, in the absence of some showing that defendant was injured by accepting the juror, or that the latter was in some manner influenced against defendant; improper conduct of the jury not being ground for reversal, unless shown to be injurious to the party complaining.
    [Ed. Note. — Eor other cases, see New Trial, Cent. Dig. §§ 116-119; Dec. Dig. i&wkey;>56.]
    5. Appeal and Error &wkey;>978(3) — Review — Overruling Motion eor New Trial eor Misconduct of Jury.
    Where the trial court makes full investigation of the alleged misconduct of the jury, and finds that it was not such as influenced the jurv in returning their verdict, his action in overruling motion for new trial based on such alleged misconduct will not be disturbed.
    [Ed. Note. — Eor other cases, see Appeal and Error, Oent. Dig. § 3870; Dec. Dig. &wkey;>978(3).]
    Appeal from Galveston County Court; George E. Mann, Judge.
    Suit by Ralpli Hanson against the Galves: ton Electric Company. Prom judgment for plaintiff, defendant appeals.
    Judgment affirmed.
    Terry, Cavin & Mills, John G. Gregg, and E. H. Cavin, all of Galveston, for appellant. II. C. Hughes and Thos. C. Turnley, both of Galveston, for appellee.
   DANE, J.

This suit was instituted by Ralph Hanson against the Galveston Electric Comiiany to recover damages for personal injuries alleged to have been suffered by Mrs. Alberta Hanson, the wife of plaintiff, while alighting from one of the street cars of appellant, Galveston Electric Company.

The plaintiff alleged that on or about October 8, 1914, Alberta Ilanson, wife of Ralph Hanson, entered one of the cars operated by the defendant, known as Twenty-First and Twenty-B'ifth street car, and became a passenger thereon and paid the regular fare of five cents; that when the said car approached Twenty-First street and Avenue J, plaintiff’s wife, wishing to get off of the car, gave the customary signal, and that the defendant and its agent, while the plaintiff’s wife was alighting from the car, negligently caused the car to start, throwing plaintiff’s wife violently to the ground and causing her injuries, for which he asks damages in the sum of $1,000, together with $10 for drug bills and $25 for doctor’s bills.

Defendant answered by general demurrer and a special demurrer that the allegations of injury were too vague and indefinite, and a denial that its agents violated any duty towards plaintiff’s wife, or that they negligently gave a signal to start the car and negligently started the car upon which plaintiff’s wife was riding prior to her alighting therefrom, or while she was on the step of said car, and denied that any negligence of defendant in suddenly starting the car, or otherwise, was the direct or proximate cause of plaintiff’s wife falling to the ground.

Defendant further pleaded that the plaintiff’s wife, by reason of her contributory negligence, caused whatever injuries she may have sustained, and that such contributory negligence was the proximate cause of such injuries, if any; that, while the car was standing still, plaintiff’s wife, in attempting to alight, failed to use that degree of care and caution which an ordinarily prudent person would use for her own safety, under the same or similar circumstances; and that by reason thereof in some manner she let her foot slip, which caused her to fall to the ground while she was alighting from the car.

Plaintiff filed a supplemental petition, denying all the material matters of defense set up in defendant’s answer. The cause was tried before a jury, which returned a verdict for the plaintiff, Ralph Hanson, for the sum of $200, and judgment was rendered accordingly. From this judgment defendant has appealed.

By paragraphs 1 and 2 of the court’s charge the jury were instructed as follows:

“If the jury find from the evidence that the injuries sustained by plaintiff’s wife were caused by the failure of the conductor to use such care in starting the car as a very competent and prudent man would have exercised under the same or similar circumstances, your verdict will be for plaintiff.
“But if the jury find from the evidence that the conductor used such care in starting the car as a very competent and prudent man would have exercised under the same or similar circumstances, or if the jury find from the evidence that the woman caused or contributed to causing her fall by failure to use the care that a woman of ordinary prudence would have used under the same or similar circumstances, then your verdict will be for the defendant.”

Appellant objected to so much of said charge on the grounds that it assumed that the conductor in charge of the street car upon which appellee’s wife was riding at the time of the alleged injuries failed to exercise such care in starting the car as a very competent and prudent man would have exercised under the same or similar circumstances, and that such charge authorized the jury to find for plaintiff, even though it should find from the evidence that the plaintiff’s wife was guilty of negligence contributing to her injuries. The charge of the court was read to the jury as above set out. After said objection was urged, the court added the words “if you find the car was so started” after the word “circumstances” in the first paragraph of said charge, to meet the objection urged in part, and then re-read said charge, as corrected, to the jury.

Appellant’s first assignment of error is as follows:

“The court erred in reading to the jury over the defendant’s objection that part of the first paragraph of the court’s charge in which the court authorized to find for the plaintiff, even though they may also find that Alberta Hanson was guilty of contributory negligence, all as more fully set out in defendant’s bill of exceptions No. 1, and then after said reading said portion of said paragraph No. 1 of said charge correcting or altering the same, and re-reading it to the jury as altered.”

The complaint made by said assignment, and the sole proposition presented thereunder in appellant’s brief, is that the court erred in the preparation of the first paragraph of his charge above set out, and in reading it to the jury before the correction thereof was made, and thereafter re-reading it to the jury after such correction. The insistence is that incurable injury had been inflicted upon appellant by reading the charge to the jury as originally constructed, and that the correction made by the court to meet the objections presented by the assignment and proposition thereunder did not cure such injury.

The contention of appellant is untenable. When paragraphs 1 and 2 of the court’s charge are read together, they, nor either of them, are subject to the objections urged to them by appellant, and the amendment or correction made by the court to meet such objections was unnecessary. No harm, however, resulted to appellant by making the correction and then re-reading the charge, as corrected, to the jury; hence the first assignment is overruled.

By appellant’s second assignment it is insisted that the court erred in refusing to give in charge to the jury appellant’s charge No. 2, which is as follows:

“If you find from the evidence that the car of the defendant was standing still at the time Alberta Hanson fell, then you will find a verdict for the Galveston Electric Company.”

This assignment is not followed by any proposition, or a statement of any facts, which would call for the submission, or even justify the trial court in giving such charge. It is true that under the head of “Remarks” in appellant’s brief the statement is made that the testimony introduced by the defendant was that the car was standing still at the time the plaintiff’s wife, Alberta Hanson, fell. But the testimony of no witness is set out, nor are we referred to the page or pages of the record where such testimony may be found. Rule 29 (142 S. W. xii) prescribed by the Supreme Court for the government of the Courts of Civil Appeals provides that appellant, in order to prepare properly a case for submission when called, shall have filed a brief of the points relied on, in accordance with, and confined to, the distinct specifications of error relied on; each ground of error being separately presented under the proper assignment, and each assigvtaent not copied in the brief and accompanied with its appropriate propositions and statements shall be regarded as abandoned. Rule 30 (142 S.W. xiii) provides that each point under each assignment shall be stated as a proposition unless the assignment itself may sufficiently disclose the point, Rule 31 (142 S. W. xiii) provides that:

“To each of said propositions there shall be subjoined a brief statement in substance, of such proceedings, or part thereof, contained in the record, as will be necessary and sufficient to explain and support the proposition, with a reference to the pages of the record. This statement must be made faithfully, in reference to the whole of that which is in the record having a bearing upon said proposition, upon the professional responsibility of the counsel who makes if and without intermixing with it argument, reasons, conclusions or inferences.”

There is no proposition following the assignment and the only statement thereunder is a copy of appellant’s bill of exception to the refusal of the court to give his special charge No. 2, which is copied in the bill. This is not a compliance with rules 29, 30, and 31 above mentioned. We are therefore not called upon to consider said assignment.

By appellant’s third assignment it is insisted that the court erred in not granting appellant a new trial because of the misconduct of the juror Douglass Bauss, in this: That when said juror was being questioned touching his qualifications as a juror, counsel for appellant asked him if he or any one related to him was at that time or had been at any time represented by Mr. Thomas Turnley, or Messrs. King & Hughes, attorneys for appellee, in the capacity of attorney or counsel, and that in answer to such question the juror replied that he had not been so represented; that said answer was untrue;, that in fact and in truth said juror had bee» represented by Thomas Turnley on the 24th day of March, 1915, in a case wherein said juror was charged with a misdemeanor; that, had counsel for appellant known such fact, he would not have accepted said juror.

The evidence on the motion for new trial, however, shows that Mr. Turnley did so represent the juror. Appellant made no attempt to show that he was in any way injured by accepting said juror, nor does he now contend that he was in fact so injured. The fact that the juror stated that he had never been represented by Mr. Turnley, when in fact he had been so represented, was no ground for setting aside the verdict of the jury, or granting a new trial, in the absence of some showing that appellant had been injured by accepting said juror, or that the juror was in some manner influenced against appellant by reason of the fact that he had been so represented by Turnley. Improper conduct of a juror is not ground for reversal, unless it is shown that such improper conduct worked injury to appellant. We cannot presume that the mere fact that Turnley represented the juror in a misdemeanor case would in any way influence said juror to render an improper verdict against appellant. Where the trial court, as in this case, makes a full investigation of the alleged misconduct of a juror, and finds that such misconduct was not such as probably influenced the jury in rendering its verdict, his action in overruling the motion for new trial, based on such alleged misconduct, will not be disturbed. The fifth assignment is overruled.

We find no error committed in the trial of the cause which should cause a reversal of the judgment rendered by the trial court. Therefore said judgment is affirmed.

Affirmed.
      <g^»Por other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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