text:
    TEXAS & N. O. RY. CO. v. SIEWERT.
    (Court of Civil Appeals of Texas. Galveston.
    Jan. 7, 1914.
    Rehearing Denied Feb. 5, 1914.)
    1. Appeal and Error (§ 1003) — Review — Finding ox Fact.
    An-implied finding of a verdict, depending on the giving of credit to plaintiff’s testimony, rather than to that of two others, as to how he was walking at the time of the accident, cannot, on appeal, be said to be so against the great weight and preponderance of the evidence as to be manifestly wrong.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3938-3943; Dec. Dig. § 1003.]
    2. Master and Servant (§ 228) — Injury to Servant — Contributory Negligence — Statutes.
    Employers’ Liability Act (Rev. Civ. St. 1911, arts. 6648, 6649), declaring an operator of a railroad liable for injury to any employé in part from negligence of employés, any contributory negligence of his merely diminishing the recovery, applies to a helper in the railroad shops.
    [Ed. Note. — For other cases, see Master and Servant, Cent.Dig. §§ 670, 671; Dec.Dig. § 228.]
    3. Master and Servant (§ 286) — «Injury to Servant — Negligence—Evidence.
    Evidence in an action against a railroad for injury to an employé in its shops from the falling of a locomotive spring from the hole in a block, when he was going along a narrow passageway, held sufficient to raise the issue of negligence, proximately causing the injury, in allowing the spring to be placed and remain in the hole unwedged and unsecured.
    [Ed. Note. — For other eases, see Master and Servant, Cent. Dig. §§ 1001, 1006, 1008, 1010-1015, 1017-1033, 1036-1042, 1044, 1046-1050; Dec. Dig. § 286.]
    4. Appeal and Error (§ 1170) — Harmless Error — Submission oe Issues.
    Under rule 62a (149 S. W. x), prohibiting reversal for error of law in the course of1 the trial, unless the appellate court be of opinion that it amounted to such a denial of rights as was reasonably calculated to, and probably did, cause rendition of an improper judgment, submission of grounds of negligence in support of which no evidence was offered does not require reversal; the jury being told they could find for plaintiff thereon only if they “believe from the evidence” defendant was guilty in such respects; it being presumed the verdict for plaintiff was on other grounds of negligenoe that were proved.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4082, 4066, 4075, 4098, 4101, 4454, 4540-4545; Dec. Dig. § 1170.]
    Appeal from District Court, Harris County; Wm. Masterson, Judge.
    Action by F. C. Siewert against the Texas & New Orleans Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Baker, Botts, Parker & Garwood, Lane, Wolters & Storey, and Wm. A. Vinson, all of Houston, for appellant Thomas B. Lewis, J. S. Ford, and C. W. Kinard, all of Houston, for appellee.

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

   McMEANS, J.

F. C. Siewert brought this suit against the Texas & New Orleans Railway Company, the Galveston, Harrisburg & San Antonio Railway Company, and the Houston, East & West Texas Railway Company to recover damages for personal injuries sustained by him through the negligence of defendants. The plaintiff alleged that he was employed by the defendant as a helper and blacksmith's assistant in the shops in the city of Houston, but his particular employment on the day of his injury was the painting of steel spring leaves; that in the course of his employment it became necessary for him to pass through and return through the shop, in order to get a drink of water; that he had to walk through a passageway, which was about five feet wide; that there was lying partly across the passageway a wooden block about 10 inches by 12 inches wide and about 3'feet long; that this block had a hole in the top of it, which was originally square, in which hole one end of a locomotive spring had been placed in a careless and improper manner, and was standing therein unwedged and unsecured; that the spring was about 3½ feet in length, and was constructed of a number of leaves placed one upon the other; that the block was lying in the passageway opposite to a large hydraulic press; that connected to the side of the press next to the passageway and opposite the block were two lever.s, and when said press was not in use they extended about 6 inches into the passageway, leaving only a clear space of about 18 inches between the levers and the block; that, as the plaintiff returned along said passageway after getting a drink of water, he stumbled and fell near said block, and the iron spring fell off the block upon his right hand, badly mashing, crushing, and bruising it. Plaintiff further alleged that about 15 feet from the block was a large steam hammer, weighing about 1,000 pounds, and thaj; when the same was in operation it jarred and shook and caused the shop and earth for a distance of- about 50 feet around the hammer to vibrate) that the block had been in use for a long time, and the sides of the holes originally cut square, had become worn, and in some degree rounded, so that it would not hold a locomotive spring as safely and securely as when the block was new and originally in use. The acts of negligence charged against the defendants were alleged as follows; “That defendants were negligent in allowing the passageway to be so obstructed by said block; and were further negligent in using said block after the hole in same had been worn and rounded, and were further negligent in permitting said block with spring in same to remain within the zone affected by the shock and jar and vibration caused by the operating of said hammer, and were further negligent in allowing said spring to be placed in and to remain in said hole in said block unwedged and unsecured. That the end of said spring should have been placed in said- hole in said block, and securely fixed and held therein by wedges placed between the said- spring and the walls of said hole, or otherwise secured; and..that, if said spring would not have then been held securely in place, the sides of said hole should have been, squared; and that if that had been done, and the said spring placed in said block and securely fixed and held therein by wedges placed as aforesaid between the said springs and walls of said hole, as it was the custom so to do, or otherwise secured, the said spring could not and would not have fallen. But all these things the defendants carelessly and negligently failed to do. That plaintiff did not know that the hole in said block was so worn that it could not safely and securely hold said spring, nor did he know that said spring was unwedged and insecurely and unsafely held in said hole, but all of these facts were known to defendants, or would-have been known to them by the exercise of ordinary care, and plaintiff alleges that he relied upon defendants performing their-duty to him to furnish him a- reasonably safe place in which to work, and reasonably safe ways about the said ■works, and that if defendants had done so, as it was their duty so to do, plaintiff would not have been injured, but that defendants carelessly and negligently wholly failed in their duty to plaintiff to do so, as hereinbefore alleged.” The defendants answered by general denial and pleas of contributory negligence and unavoidable accident. The ease was tried before a jury and resulted in a verdict and judgment in favor of plaintiff against the Texas & New Orleans Railroad Company for $10,000 and against plaintiff in favor- of the other defendants. From the judgment against it the defendant Texas & New Orleans Railroad Company has appealed.

The evidence in'the record justifies the following fact findings: Plaintiff was in the employment of defendant in the capacity of blacksmith helper; but on September 18, 1912, the date of his injury, he was engaged in painting steel springs. On that day, desiring to get a drink of water, he proceeded to where the water was kept; and in doing so he had to pass through a passageway through defendants’ shops which was provided by defendants for its employés, and which passageway was about 5 feet wide. On the day in question there was a wooden block lying partly across the passageway. This block was about 12 inches wide, 10 inches high, and 3 feet long. In the upper side of this block there was a square hole into which one end of a locomotive spring, during the process of its manufacture, could be placed, thus holding the spring in a vertical position while the various leaves, of which the spring was made, were being clamped and bolted together and while iron bands were being placed around them. While the making of springs was in process, tlie block always sat in tbe passageway, but when not it was usually set aside and out of tbe way. Whether tbe block was being used on tbe day plaintiff was hurt was in dispute, tbe plaintiff testifying that it was not, while certain of defendants’ employes testified that it was; but whether it was not we think it immaterial in the view we take of the case. The block lying aeross the passageway left, on one side of it and between it and a hydraulic press, an open space or passageway of only 12 or 16 inches, and approximately a like distance between the block and an anvil on the other side. The block had been in this position for three days, and during this time, or at least the entire day up to the time plaintiff was hurt, a locomotive spring, weighing, as estimated by plaintiff, 250 pounds, and, by employés of defendant, 140 pounds, had been resting vertically on the block, one end being inserted in the hole to hold it in an upright position, but was not otherwise fastened in the hole or made secure or connected with the block. Plaintiff in going after water passed between the block and the press. He had passed it once or twice before on that day, and knew the block was there and that the spring was standing on it, but did not know that it was not fastened in the hole. On his return, after getting a drink of water, plaintiff attempted to walk between the block and the press, and in doing so his foot hit the block, or “hooked” the block, as he expressed it, causing him to stumble and fall forward upon his hands, and the jar of his foot against the block caused the spring to fall out of the hole and off of the block, and in falling it fell upon plaintiff’s hand, thereby causing the injuries for which he sues. There was some testimony offered in behalf of defendant to prove that the jar caused by plaintiff in coming in contact with the block turned the block over, and thus caused the spring to fall; but the testimony of plaintiff and one of defendant’s witnesses, Oliie James, was that the block did not turn over and that the spring fell out of the hole; and in deference to the verdict we find their testimony to be true. We further find that ordinary care on the part of defendant toward its employés using the passageway required that the spring should be fastened or secured in the hole so that it would not fall when jarred to such a slight extent that the jar would not turn the block over, and we find that the spring was not so fastened or secured, and that the omission of this care on defendant’s part was the proximate cause of plaintiff’s injury.

Appellant by its first assignment of error contends that the verdict of the jury is contrary to the law and against the great preponderance of the testimony, in that the great preponderance of the evidence shows that at the time of his injury the plaintiff was walking backwards, or nearly so, without looking where he was walking, with his attention fixed in a direction other than where he was walking, and thus walked back against the block and spring and caused same to turn over and fall, the latter falling upon his hand and injuring him, and thus shows he was guilty of contributory negligence.

It might be a sufficient answer to this assignment to say that, even if it was indisputably shown that plaintiff was injured as the result of his contributory negligence, he, falling in the class of railroad employés protected by the Employers’ Liability Act, would not be barred of recovery, although the amount of his recovery should be diminished in proportion to the negligence attributable-to him. As to him the defense of contributory negligence, while recognized by the statute, is a qualified defense and not absolute. We will discuss this question more fully in disposing of a succeeding assignment of error. But waiving this answer for the present, we think the assignment cannot be sustained. It was shown that near the passageway was a steam hammer, and that when, plaintiff was returning to his work after getting a drink of water, this hammer was in operation. Two of the defendant’s employés testified that plaintiff, before he reached the point where the block and spring were, was-looking at or toward the hammer and was backing away from it and toward the block and spring, and that just as he reached the latter he turned and tripped upon the block and fell, causing both the block and spring to turn over and the spring to fall, and the latter to fall on his hand. Another of defendant’s employés, Oliie James, testified substantially to the same effect, with the exception that the block did not turn over but only • tilted. On the other hand, plaintiff testified that he was looking in front of him as he walked, that he saw the block and spring, and in attempting to pass in the narrow space • between the press and the block his foot “hooked”' the block, and that he stumbled over it and fell. It is the province of the jury to pass upon the credibility of the witnesses,. and when they have done so this court will not ordinarily disturb their findings. The • testimony of plaintiff, if true, was sufficient to refute the contention of defendant that he walked backward against the block and. spring, without looking where he was walking. The jury, by their verdict, say he told the truth in this regard, and this court cannot say that their conclusion was so against the great weight and preponderance of the testimony as to be manifestly wrong. Railway v. Bright, 156 S. W. 310; Railway v. Rowell, 45 S. W. 766; Railway v. Holland, 27 Tex. Civ. App. 397, 66 S. W. 68; Railway v. Lee, 69 Tex. 560, 7 S. W. 324. The assignment is overruled.

The defendant requested the court to instruct the jury as follows: “Under the undisputed evidence the plaintiff is not entitled to recover, and you will therefore return your verdict for defendant.” The refusal to give this charge is made the basis of the - second assignment of error. In its first proposition under the assignment appellant contends that under the undisputed evidence the plaintiff was guilty of contributory negligence proximately causing his injuries, and therefore the court should have instructed the jury to return a verdict for the defendant. It is argued that whether the plaintiff was injured by backing into the block, as testified to by defendant’s witnesses, or by walking into it as claimed by him, he was, in either event, guilty of contributory negligence and was not entitled to recover. This case seems to have been tried upon the theory that the defense of contributory negligence of plaintiff was a complete defense, and barred plaintiff of any right of recovery. In our opinion this theory is incorrect, because it seems to us that the rule of recovery in cases of this kind is governed by articles 6648 and 6649, Revised Statutes 1911 (Acts 1909, p. 279), commonly known as the Employers’ Liability Act. The statute in so far as it affects the question under consideration is as follows:

“Art. 6648. Every corporation, receiver, or other person operating any railroad in this state, shall be liable in damages to any person suffering injury while he is employed by such carrier , operating such railroad; ⅜ * * resulting in whole or in part from the negligence of any of the officers, agents or employés of such carrier. ⅜ ⅞ ⅜
“Art. 6649. In all actions hereafter brought against any such common carrier or railroad under or by virtue of any of the provisions of the roregoing article * * ⅜ to recover damages for personal injuries to an employé, * s * the fact that the employé may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employé. * * * ”

The articles of the statute in question were construed by this court in Houston & Texas Central Railroad Co. v. Bright, 156 S. W. 304 (writ of error refused), and it was held that they applied to the case of an employé of a railroad company who sustained personal injuries while employed as a bridge worker, and whose injury was caused by the negligence of the railroad company in failing to furnish to plaintiff a clawbar that was.reasonably safe for use, and in furnishing one that was defective. If applicable to the facts of that case they are applicable here, and, this being true, the court would not have been justified in giving the peremptory instruction to find for defendant on the theory that his contributory negligence, as a matter of law, barred a recovery. In discussing the statute in a case where a question of similar import was raised, this court in St. Louis, Brownsville & Mexican R. Co. v. Vernon, 161 S. W. 84 (opinion filed October 30,1913, but not yet officially reported), says: “The act itself does not abolish the defense of contributory negligence, but recognizes it. True, the defense is a qualified one; but to the extent it is allowed and recognized it is perfect. It will not allow the defendant to escape all the consequences of its wrong, merely because the plaintiff has contributed thereto by his wrong; but it requires a defendant to respond in damages for all the injuries its wrong inflicts, less the proportion thereof that the plaintiff contributes thereto by his negligence.”

By a second proposition under the second assignment appellant contends that, the undisputed evidence having shown that the defendant was not guilty of any negligence proximately causing the plaintiff’s injury, the jury should have been instructed to return a verdict for defendant.

Plaintiff alleged several grounds of negligence on the part of defendant as proximately causing his injuries, among others being an allegation in effect that the defendant allowed the spring to be placed and remain in the hole in the block unwedged and unsecured, that it should have been securely fixed and held therein by wedges or otherwise secured, and that if it had been so secured the spring could not and would not have fallen, and that defendant by not so securing the spring was guilty of negligence proximately causing his injuries. If these allegations were substantially proved, we think the issue of defendant’s negligence as a proximate cause of plaintiff’s injury was raised. Plaintiff on this issue testified that the spring, the fall of which injured his hand, “was not connected with the block at that time.” He also testified that the block did not turn over when the spring fell. He is corroborated by defendant’s witness, Ollie James, who testified that when the spring fell the block did not turn over but only tilted. There was no testimony offered on the part of the defendant to prove that the spring had been fixed or secured in the hole in any way. We think that the uncontradicted statement of plaintiff that the spring was not connected with the block at the time it fell, together with his further testimony that the falling of the spring did not turn the block over, and which testimony is corroborated by the testimony of one of the defendant’s witnesses, was sufficient to raise the issue of defendant’s negligence in the regard alleged, and, if this is so, clearly the requested charge should not have been given. The second assignment is overruled.

What we have said in disposing of the second assignment sufficiently disposes of the third adversely to appellant’s contention.

Among the grounds of negligence charged by plaintiff in his petition were these: That the defendant was negligent in using said block after the hole in same had been worn and rounded; in not squaring the sides1 of the hole in which the spring was placed; and in placing and leaving. the block and spring in the zone affected by the operation and jarring of the steam hammer. There was no evidence offered to prove negligence of defendant in regard to any of these allegations ; but, notwithstanding this, the court instructed the jury that if they believed from the evidence that the defendant "was guilty of negligence in the manner particularly set out in plaintiff’s petition,” and that such negligence was'the proximate cause of plaintiff’s injuries, to find for plaintiff unless they found for defendant upon other issues thereafter submitted in the charge. The charge is assailed by the fourth assignment of error; the complaint being that the charge was not justified by the evidence and therefore it was error to give it.

If appears that no evidence was offered in support of the grounds of negligence above referred to, but it does not follow that the error in giving the charge was so prejudicial as to require a reversal of the judgment. The charge explicitly informed the jury that they must “believe from the evidence” that the defendant was guilty of the negligence particularly charged in the petition. As shown in discussing previous assignments, there were grounds of negligence charged that were proved. It must be presumed that the basis of the verdict was the proven allegations of negligence and that a jury of ordinary intelligence, which this jury must be presumed to be, would not be misled by the charge to conclude and find in favor of plaintiff upon allegations upon which no proof was offered. The giving of the charge was clearly erroneous; but we are of the opinion that the error complained of did not amount to such a denial of the rights of the appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case. Rule 62a (149 S. W. x). In Kirby Lumber Co. v. Cunningham, 154 S. W. 288, a charge similar to that here objected to was given, and this court held it was error and reversed the judgment of the trial court for that and several other errors discussed in the opinion. At the time of the rendition of that decision, Rule 62a had but recently gone into effect and was not considered by this court in reaching the conclusion that the error in the charge required a reversal. Under the rule referred to, a reversal is not authorized unless the court shall be of the opinion the error complained of amounted to such a denial of the rights of the appellant as was reasonably calculated to cause, and probably did cause, the rendition of an improper judgment. In the case referred to it is said: “We are unable to say that this was mere abstract, and not prejudicial, error.” Thus is appears we followed the general rule formerly in vogue, which required a reversal for errors which the appellate courts could not say were not prejudicial. Under the present rule we must be able to say that the error complained of was probably prejudicial. As. before shown, we cannot say that the error complained of was calculated to cause, and probably did cause, the rendition of an improper judgment. The first, third, fourth, fifth, and sixth propositions under the assignment are overruled. The second proposition is disposed of in the discussion of other assignments.-

The fifth, sixth, and seventh assignments are sufficiently disposed of in the disposition made of other assignments hereinbefore discussed, and are overruled.

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

Affirmed.


source: Caselaw Access Project

author: KEY, C. J.

license: Public Domain

text:
    STATE v. METHODIST EPISCOPAL CHURCH, SOUTH, et al.
    (Court of Civil Appeals of Texas. Austin.
    Jan. 21, 1914.)
    Taxation (§ 244) — Exemption — Church Property.
    Property which forms part of the property of a church used as an actual place of public worship, and which is necessary for the proper occupancy, use, and enjoyment of the property-used exclusively for public worship, and is owned by a religious organization and an institution of purely public charity, and has never been leased or otherwise used with a view to profit, is exempted from taxation under Rev. Civ. St. 1911, art. 7507.
    [Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 405-414; Dec. Dig. § 244.]
    Appeal from District Court, Lampasas County; John D. Robinson, Judge.
    Action-by the State against the Methodist Episcopal Church, South, and others to recover taxes. From a judgment for defendants, plaintiff appeals.
    Affirmed.
    B. F. Looney, Atty. Gen., and W. A. Keeling, Asst. Átty. Gen., for the State. M. M. White, H. F. Lewis, and W. B. Abney, all of Lampasas, for appellees.

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

   KEY, C. J.

The state of Texas, acting by the county attorney of Lampasas county, brought this suit against the Methodist Episcopal Church, South, at Lampasas, Tex., and certain officers or trustees of that church. The purpose of the suit was to recover certain state and county taxes alleged to be owing and due by the church upon three lots, situated in the town of Lampasas, and to foreclose an alleged lien.

The defendants filed an answer which contained a general demurrer, a special exception, a general denial, and a special answer, which contained the following averments: “And, further answering herein, defendants say that the Methodist Episcopal Church, South, is a religious organization and an institution of purely public charity, and the sole aim and objéct of said church is to promulgate and advance the Christian religion, and to do good of every possible sort, as far as possible, to all men, to tbeir bodies, by giving food to tbe ■ hungry, by clothing the naked, and by visiting or helping the sick, to their soul, by teaching and instructing in the Christian religion; and in carrying out these purposes it is necessary to have a pastor at the different towns where there is a local organization of said church to act as a leader in carrying out the purposes of said organization. This pastor is appointed in accordance with the rules of said church and the Annual Conference within whose bounds such church is located, and said pastor depends on voluntary contributions for his financial reward or compensation, and renders said service without having any contract by .which he could recover pay for said services if the membership of said church should fail to contribute anything towards his support; and the premises described in plaintiff’s petition were purchased and paid for by voluntary donations, and were conveyed to certain trustees and to their successors in office who might be appointed from time to time by the Quarterly Conference of the Methodist Episcopal Church, South, at Lampasas, Texas, and said property by the terms of said deed to be held, used, and disposed of by said trustees and their successors in office as a place of residence for the pastor of the Methodist Episcopal Church, South, at Lampasas, Texas, who should from time to time be stationed at Lampasas, Texas, by the Annual Conference of the M. E. Church, South, within whose bounds said property is located. Defendants represent that ever since the purchase of said property on December 20, 1904, the same has been exclusively used by the pastors of said church designated by the Annual Conference of said church to reside there, and has not at any time since the same was so conveyed to the Methodist Episcopal Church, South, been leased or otherwise used with a view to profit. Defendants further represent that the entire life and labor of the pastors of said church, who occupy said property, are given exclusively in building up the societies of said church, and promoting ttie charitable purposes aforesaid, preaching the gospel, and administering the sacraments; and their financial reward or compensation is dependent solely upon voluntary contributions and voluntary aid, and, said property forms a part of the property of said church used as an actual place of religious worship, and the same is necessary for the proper occupancy, use, and enjoyment of its houses and grounds used exclusively for public worship. Wherefore, defendants say that, under the Constitution and laws of this state, said property is claimed to be exempt from taxation, and of this they put themselves upon the country.”

There was a nonjury trial, which resulted In a judgment for the defendants, and the state has appealed. The decree recites that “it was agreed by the plaintiff and defendants that the plaintiff is entitled to recover the taxes claimed in its petition and the costs and penalties as alleged, and have a foreclosure, of the tax lien as claimed in plaintiff’s petition, unless the facts set forth in the defendants’ answer show a sufficient and valid defense to said claim of plaintiff for taxes; it being admitted in open court that the facts as alleged in defendants’ answer are true.”

Article 7507, Rev. Stat. 1911, prescribes what property shall be exempt from taxation, among which is houses used exclusively for public worship, and the grounds attached to such buildings necessary for the proper occupancy, use,' and enjoyment of the same, and not leased or otherwise used with a view to profit, etc. Also all public buildings belonging to institutions of purely public charity, together with the lands belonging to and occupied by such institutions, not leased or otherwise used with a view to profit, etc.

The Attorney General’s department has filed an interesting brief in support of the contention that the property is not in fact either a place used exclusively for public worship or a building belonging to an institution purely of public charity. In. view of the admissions which were made by the state in the trial court, we think the questions discussed are abstract and academic, and we decline to express any opinion concerning them. If the state ever had any case, we think it was swept away and destroyed when it admitted that the property in question forms a part of the property of the church, used as an actual place of religious worship, and was necessary for the proper occupancy, use, and enjoyment of its houses and grounds, used exclusively for public worship, and that the church which owned the property is a religious organization and an institution of purely public charity, and the property had never been leased or otherwise used with a view to profit. These admissions brought the case fully and clearly within the purview of the exemption statute; and therefore the trial court rendered the proper judgment, and this is especially true as to the charity feature of the case. The pleadings and admissions brought the case clearly within the provision of article 7507, relating to charitable institutions.

It is not contended on behalf of the state that the provisions of the statute referred to extend beyond and are not authorized by the provision of the Constitution which authorizes the Legislature to provide exemptions from taxation, and therefore we - do nor feel called upon to determine the constitutionality of the statute.

No error has been shown, and the judgment is affirmed.

Affirmed.


text:
    SAN ANTONIO & A. P. RY. CO. v. BATTE.
    (Court of Civil Appeals of Texas. Austin.
    Feb. 4, 1914.)
    Trial (§ 256*) — Live Stock — Action for Damages — Instructions.
    . Where a charge correctly defined negligence in an action for injury to cattle shipped, if defendant desired a correct definition of the “ordinary care,” it should have requested an instruction correctly defining the term, and cannot complain because the charge defining it was meaningless.
    [Ed. Note. — For other eases, see Trial, Cent. Dig. §§ 628-641; Dec. Dig. § 256.*]
    Appeal from Milam County Court; John Watson, Judge.
    Action by R. L. Batte against the San Antonio & Aransas Pass Railway Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Henderson, Kidd & Gillis, of Cameron, for appellant. U. S. Hearrell, of Cameron, for appellee.
   KEY, C. J.

This is a cattle shipping case, and, from a judgment for the plaintiff for $176, this appeal is prosecuted.

It is not contended that the verdict of the jury is not supported by testimony. All of the assignments complain of the court’s charge. It must be conceded that the attempted definition in the charge of ordinary care is not only inartistic, but is meaningless. However, the charge gave a correct definition of negligence; and, if appellant desired a correct definition of ordinary care, it should have prepared and requested an instruction giving such definition.

The other objections to the charge are without merit. No reversible error has been pointed out, and the judgment is affirmed.

Affirmed.


author: McMEANS, J.

text:
    MITCHELL v. WESTERN CASUALTY & GUARANTY INS. CO.
    (Court of Civil Appeal of Texas. Galveston.
    Jan. 19, 1914.)
    Exemptions (§ 48) — “Current Wages” — Proceeds of Insurance — “Wages.”
    Const, art. 16, § 28, provides that no current wages for personal service shall be subject to garnishment, and Rev. Civ. St. 1911, arts. 3785, 3788, exempt from garnishment “current wages for personal services.” Held, that current wages as so used means such as are to be paid periodically, or from time to time as the services are rendered, as where they are paid for by the hour, day, week, month, or year; the term “wages” meaning compensation to be given to a hired person for services, and did not include a liquidated demand for settlement of a liability of an insurance company to a wage earner for loss of wages due to sickness or accident, though the premiums had been paid from wages which were exempt. <

    [Ed. Note. — For other cases, see Exemptions, Cent. Dig. §§ 64-72; Dec. Dig. § 48.

    For other definitions., see Words and Phrases, vol. 2, p. 1795; vol. 8, pp. 7369-7373, 7831.]
    Appeal from Harris County Court; Clark C. Wren, Judge.
    Action by George C. Mitchell against the Western Casualty & Guaranty Insurance Company, garnishee. From a judgment dismissing the garnishment, plaintiff appeals.
    Reversed and remanded.
    Jones & Jones, of Houston, for appellant. Thomas B. Lewis, of Houston, for appellee.

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

   McMEANS, J.

This suit originated in the justice court. George C. Mitchell, appellant, having an unsatisfied judgment against W. T. Holt, sued out a writ of garnishment against the Western Casualty & Guaranty Insurance Company, and the writ was duly served. From a judgment rendered upon a trial in the justice court, an appeal” was perfected to the county court, where, upon a trial in that court, judgment was. rendered against Mitchell and in favor of the garnishee and the judgment debtor, who had intervened. From this judgment, Mitchell has appealed.

W. T. Holt earned his living by daily labor, and his average earning capacity was about $2.50 per day, or about $75 per month. His wages furnished the means by which he supported himself and family. In view of the uncertainty of his health and the possibility of accident, either of which might temporarily affect or destroy his earning capacity, he applied for and secured from the appellee, Western Casualty & Guaranty Insurance Company, a policy, by the terms of which the insurance company agreed to pay to him a sum about equal to his wages during such period as he should be temporarily disabled to earn wages on account of sickness or accident. On January 27, 1912, while the policy was in force, Mr. I-Iolf sustained an, accidental injury, on account of which he was temporarily incapacitated to work and earn wages, and by the terms of the policy he was entitled to receive from the insurance company the sum of money therein provided for during the period of his disability. The premium of the policy was paid out of wages earned by him. Before the issuance and service °of the writ of garnishment the insurance company paid to Mr. Holt a certain amount of money to be appliéd in settlement of his claim against it, and thereafter he claimed further injuries, and demanded further compensation, ‘and, in order to avoid the expense of litigation, a compromise was effected, whereby the insurance company agreed to pay to Mr. Holt the sum of $105 upon the execution by him of a good and valid release; but before the release was executed, and the draft drawn for the payment of said sum had been delivered, the writ of garnishment was issued and served upon the insurance company.

The court, in its judgment, found that the fund in the hands of the garnishee was a liquidated demand, but that such fund was current wages for personal service, and not subject to garnishment. This last finding is attacked by appellant in his first assignment of error; his contention being that the amount due and owing by the insurance company to Mr. Holt did not accrue to him as current wages earned by him, but was an ordinary indebtedness which had accrued under the terms of the policy, and, as such, was subject to garnishment.

The Constitution declares that “no current wages for personal services shall be subject to garnishment” (article 16, § 28), and the statute exempts from garnishment “current wages for personal services (articles 3786, 3788, Revised Statutes 1911). “Current wages” has been judicially defined to be such as are to be paid periodically, or from time to time as the services are rendered, as where the services are paid for by the hour, day, week, month, or year. Bank v. Graham & Lewis, 3 Willson, Civ. Cas. Ct. App. § 462. In the case cited it is said: “In the use of the word ‘current’ our constitutional and statutory provisions differ from such exemption in most of the states. Freeman on Executions, par. 234. Significance must be given to it as well as the word ‘wages.’ ” “Wages” are the compensation to be given to a hired person for service, and the same is true of salary. Bell v. Indian Live Stock Co., 11 S. W. 346, 3 L. R. A. 642. So that which is exempted is the compensation paid to a hired person for personal services rendered to his employer. In the case last cited it is held that wages voluntarily left in the possession of the employer after they became due ceases to be “current,” and are not exempt. In Davidson v. Logeman Chair Co., 41 S. W. 824, it is held that, “whenever the wages become subject to the control of the employs, and he voluntarily leaves them with his employer,, or collects and deposits them with some one else, he has robbed them of their character as current wages, and the protection extended to them by the Constitution and statute is lost.” Such being the character of the exemption given to the wage earner, it is not perceived how the constitutional and statutory provisions referred to can be construed to exempt to a wage earner, not wages, current or otherwise, but a sum of money due upon a contract to indemnify him against the loss of wages he has never earned. The exemption is “curent wages for personal services,” and the Constitution and statutes cannot be extended by judicial construction to embrace an exemption not fairly coming within their terms.

Appellee Holt argues that he “exchanged exempt property, wages, for a contract that entitled him to wages when, because of sick ness or accident, he could not work; he paid for the right to collect a sum in lieu of his wages in the place of his wages, for enough to exist on”; and, from this and similar argument, contends that, as the contract took the place of the wages he would have earned except for the accident that deprived him of the ability to earn them, the money due thereon became exempt in lieu of wages. This argument may be strong reason why the Legislature should have created the exemption in the first instance; but a sufficient answer to it is that the Legislature did not do so. In Turner v. Cross & Eddy, 83 Tex. 224, 18 S. W. 578, 15 L. R. A. 262, Chief Justice Stay-ton, speaking for the Supreme Court, said: “It is the duty of a court to administer the law as it is written, and not to make the law, and, however harsh a statute may seem to be, or whatever may seem to be its omissions, courts cannot on such considerations by construction restrain its operations, or make it apply to cases to which it does not apply, without assuming functions that pertain solely to the legislative department of the government.” In Campbell, Receiver, v. Cook, 86 Tex. 634, 26 S. W. 488, 40 Am. St. Rep. 878, Justice Brown of the Supreme Court quotes with approval from section 430, Sutherland on Statutory Construction, as follows: “Liberal construction is given to suppress the mischief, and advance the remedy. For this purpose, as has already been said, it is a settled rule to extend the remedy, as far as the words will admit, that everything may be done in virtue of the statute in advancement of the remedy that can be done consistent with any construction. Where its words are plain, and clearly define its scope and limit, construction cannot extend it, or where the language is so explicit as to exclude any reasonable inference that such extension was intended.” In the same case the following is quoted with approval from Lord Brougham: “If we depart from the plain and obvious meaning, we do not construe the act, but alter it. We supply a defect which the Legislature could easily have supplied, and are making the law, and not interpreting it.”

It is unnecessary to multiply authorities upon this question. The law is expressed in plain words, and must be taken and enforced by the courts according to its terms. The money garnished in this case was not current wages for personal services, and was not exempt from garnishment, and the court should have so found. The judgment of the court below is reversed, and judgment here rendered for the appellant.

Reversed and rendered.


text:
    RUCKER et al. v. CARR.
    (Court of Civil Appeals of Texas. Galveston.
    Jan. 14, 1914.)
    1. Depositions (§ 99) — Admissibility.
    Under Rev. St. 1895, art’s. 2273,2290, providing that depositions may be read in evidence upon the trial of any suit in which they are taken, a deposition of an alleged testatrix taken before her death in a suit to set aside a deed cannot be read in a proceeding for the probate of her will to establish the making of such will.
    [Ed. Note. — For other cases, see Depositions, Cent. Dig. §§ 288-296; Dec. Dig. § 99.]
    2. Wiles (§ 384) — Probate—Review—Harmless Error.
    In a proceeding for the probate of a will, where the evidence would have sustained a finding for either party, the erroneous admission in evidence of a deposition of the testatrix, taken in another suit which she instituted before her death, wherein she stated that the proponent was the custodian of her will, is prejudicial.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 855-858; Dec. Dig. § 384.]
    3. Wills (§ 297) — Actions to Establish— Evidence.
    In a proceeding for the probate of a will, testimony that the testatrix in a suit which she instituted before her death stated, in giving her deposition, that the proponent was the custodian of her will is admissible, although the deposition itself cannot be introduced.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 690-696; Dec. Dig. § 297.]
    4. Wills (§ 331) — Proceeding» to Probate— Instruction — Refusal.
    In a proceeding for the probate of a will, the jury were charged that, if the testatrix signed the instrument, and two persons over the age of 14 years signed as witnesses in her presence, and the instrument reflects her will, it was a valid will. One of the special issues submitted was whether the testatrix executed the instrument in the manner in which the jury were charged it should be executed. The evidence raised the issue as to whether the testatrix signed the instrument with full knowledge of its contents. Held, that the refusal of a requested charge submitting to the jury with particularity the question whether the will was executed by the testatrix with full knowledge of its contents was improper; that issue not being sufficiently presented by the charge given, in view of the form of the special issue.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 782-784, 786, 787; Dec. Dig. § 331.]
    Appeal from District Court, Harris County; Norman G. Kittrell, Judge.
    Application by Richard Carr for probate of a will opposed by George Rucker and others. On appeal by the proponent to the district court, the instrument was admitted to probate, and defendants appeal.
    Reversed and remanded.
    John B. Warren, Phelps & Phelps, and Hutcheson & Hutcheson, all of Houston, and E. A. Scott, of Navasota, for appellants. Heidingsfelders, of Houston, for appellee.

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

   McMEANS, J.

Appellee, Richard Carr, filed in the county court of Harris county his application to probate an instrument in writing purporting to be the last will and testament of Mariah Jackson, deceased. George Rucker and others, the appellants here, filed a contest, and, upon a hearing in the county court, it was adjudged that the instrument was not the last will and testament of Ma-riah Jackson, and it was not admitted to probate. Richard Carr, the appellee here, appealed to the district court of Harris county, where, upon a trial before a jury upon special issues, the instrument was declared to be Mariah Jackson’s last will and testament, and it was ordered admitted to probate in the county court. From this last order and judgment, George Rucker et al., the contestants, have appealed.

The purported will bore date December 16, 1911. Whether it was, in fact, Mariah Jackson’s will, and whether, in fact, she executed it, was a hotly contested fact issue. The contestants offered many cogent circumstances to prove that it was not her will, while the proponent and the two attesting witnesses stoutly maintained that it was. We will not undertake to set out the testimony offered by each side upon the issue.During the introduction of testimony, a portion of the deposition of Mariah Jackson, taken just a short time before she died, was offered in evidence. This deposition was taken in the suit of Mariah Jackson v. Louise Hearne, pending in the district court of Harris county, which suit was brought for the purpose of canceling and holding, for naught a deed purporting to have been executed by Mariah Jackson, conveying certain real estate to Louise Hearne, it being claimed that the deed was a forgery. This suit was, of course, a separate and entirely distinct suit from the proceeding to probate the will. The deposition was taken a short time after the date of the purported will. The part of the deposition offered in evidence consisted -of the following question and the answer thereto: “Question. Who has your will? Answer. Richard Carr.” The question and answer were objected to by the contestants on the grounds, among others, that the question and answer were contained in a deposition which was taken in the course of another pending case, to which none of the contestants were parties, and in which suit the issues involved were not the same or in any way connected with the issues involved in this case; and because said deposition was not proved to have been signed by Mariah Jackson, nor to have been sworn to by her, as required by law, nor were the statements contained in said deposition proved to have been made by her. The objections were overruled and the question and answer admitted in evidence, and it is this action of the court that is attacked by appellants’ first, second, third, fourth, and fifth assignments of error.

It seems to be well settled in this state that a deposition taken in one case is not a&-missible as evidence in another. Bank v. Mulkey, 94 Tex. 395, 60 S. W. 753; Parlin & Orendorff v. Vawter, 39 Tex. Civ. App. 520, 88 S. W. 407. In the case first cited, Justice Brown of the Supreme Court says: “The courts of this state derive their power to take depositions in suits pending before them from article 2273 of the Revised Statutes (1895), which provides: ‘Depositions of witnesses may be taken when the party desires to perpetuate the testimony of a witness, and in all civil suits heretofore or hereafter brought in this state, whether the witness resides in the county where the suit is brought or out of it.’ Succeeding articles of the statute prescribe the manner in which the depositions must be taken and returned, and article 2290 determines the extent to which they may be used in the following language: ‘Depositions may be read in evidence upon the trial of any suit in which they are taken,’ etc. In view of the difficulties which the common-law courts encountered in taking the depositions of witnesses and the fact that they finally abandoned all effort to enforce such authority, this article would appear to be the work of some well-informed lawyer who sought, by definite and unambiguous language, to fix the extent to which depositions might be used. The words ‘upon the trial of any suit in which they are taken,’ are so plain that there is no room for construction, and clearly limit the use of depositions to ‘the suit in which they are taken.’ ” It follows that the admission of the portion of the deposition of Mariah Jackson referred to over the objection made thereto was error.

But was this such an error as to require a reversal of the judgment? We think so. The testimony, aside from that improperly admitted, would have been a sufficient basis for a verdict in favor of either party, and a judgment rendered thereon would not have been disturbed by the appellate court. But the proponent was allowed to introduce evidence which was not admissible, but was extremely prejudicial to the contestants, and we think it was reasonably calculated to turn the scales in favor of the proponent, and that it was therefore reasonably calculated to and probably did cause the rendition of a judgment in his favor.

We do not mean to be understood as holding that the statement of Mariah Jackson, as to who had her will, could not be proved. Such statement could have been testified to by the notary who took her deposition, or by any other person who heard her make the statement in answer to the notary’s question or otherwise; but what we do mean to hold is that her deposition, as such, taken in another proceeding was not admissible, in whole or in part, in the proceeding to probate the will.

As before stated, the case was submitted to a jury on special issues. These were preceeded by guiding instructions, paragraph 2 of which is as follows: “There is no question raised by the testimony as to the mental capacity of Mariah Jackson, and, if she signed the instrument offered for probate as her will with her mark, and two persons over the age of 14 years signed the same as witnesses in her presence, and the instrument reflects her will and wishes, then the same is a valid instrument.”

Only two questions were propounded, one of which is as follows: “Do or do you not find that Mariah Jackson executed the paper which is offered for probate as her will in the manner which you are instructed in paragraph 2 it should be executed?” The other question propounded related to the issue of the execution of the will as the result of undue influence. Appellants requested the court to give its special charge No. 1, which is as follows: “You are further charged that, even if you find the will was executed in conformity with paragraph 2 of the court’s general charge, you must find further that it was executed by the testatrix with full knowledge of the contents, before same can be admitted to probate. You will therefore, with the foregoing in mind, answer this question: Was the paper offered by, proponent executed by Mariah Jackson with full knowledge of its contents?” The refusal of the court to give this charge is made the basis of appellants’ sixth and seventh assignments of error.

We think the evidence raised the issue as to whether Mariah Jackson, if she did sign the instrument offered for probate as her will, did so without full knowledge of its contents. She was old, infirm, and illiterate. The only witnesses who testified that she signed the will, knowing its contents fully, were the proponent, the sole beneficiary, and the two subscribing witnesses, who were selected by him. His wife, who, proponent testified, was present, did not testify, although present at the trial. There were many facts and circumstances offered in evidence tending to show that Mariah Jackson wished to make an entirely different will from that offered. Under these facts, we think the jury should have been permitted to say whether Mariah Jackson had full knowledge of the contents of the will offered, if, in fact she did sign it. We do not think this issue was sufficiently submitted in paragraph 2 of the charge, as contended by appellee. Paragraph 2 informed the jury of the manner in which a valid will should be executed. It told the jury that, if the will was executed in a certain manner, and that if it “reflects her will and wishes,” it would be valid. In submitting the question, the jury was asked if the testatrix executed the will in the manner in which they were instructed in paragraph 2 it should be executed. The jury, in answering this question, would see by referring to paragraph 2 that the manner of executing the will was that it must have been signed by Mariah Jackson, and that two persons over 'the age of 14 years must have signed the same as witnesses in her presence. We do not think that the jury, being asked if the will was executed in the manner stated in paragraph 2, would have felt authorized to go further and answer whether she understood its contents when she signed it. We think, therefore, the special charge should have been given, and the assignments presenting the point are sustained.

We have carefully examined all the other assignments urged by appellants, and have concluded that other than those above discussed no reversible error is shown. For the errors indicated, the judgment of the court below is reversed, and the cause remanded.

Reversed and remanded.


author: HALL, J.

text:
    McSPADDEN et al. v. EADS.
    (Court of Civil Appeals of Texas. Amarillo.
    Feb. 7, 1914.)
    1. Justices of the Peace (§ 174) — Appeal-Petition — Amendment.
    An _ amendment of the petition on appeal from a justice of the peace to the county court, which merely amplifies the statement of the cause of action alleged in the original petition, is not objectionable as pleading a new cause of action.
    [Ed. Note. — Eor other cases, see Justices of the Peace, Cent. Dig. §§ 665-693; Dec. Dig. § 174.]
    2. Justices op the Reace (§ 174) — Appeal-Amendment.
    Either party to an appeal from a justice of the peace to the county court may plead new matter not presented to the justice, so long as a new cause of action is not set up by the amended pleading.
    [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 665-693; Dee. Dig. § 174.]
    3. Justices of the Peace (§ 174) — Appeal-Pleading.
    The strict rules of pleading in force in the district court are not applicable to an appeal from a justice of the peace to the county court, since that court, in the_ trial of such an appeal de novo, sits as a justice court.
    [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 665-693; Dec. Dig. § 174.]
    Appeal from Collingsworth County Court; R. H. Cocke, Jr., Judge.
    Action by John McSpadden and others against W. M. Eads. Judgment for defendant, and plaintiffs, appeal.
    Reversed and remanded.
    R. H. Templeton, of Wellington, for appellants. J. L. Lackey, of Wellington, for appellee.

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

   HALL, J.

In the justice court of Col-lingsworth county the apppellants recovered a judgment against the appellee for $100, with interest. The cause of action, as shown by the record from the county court, is as follows: “Suit upon contract for $100.00 of date October 25, 1912, due October 25, 1912, and interest six per cent, from date. The nature of plaintiffs’ demand being in substance as follows: Suit for commission of $100.00, for procuring a buyer for the land of W. M. Eads, which W. M. Eads promised and agreed to pay to plaintiffs for said services, and plaintiffs have rendered the services as agreed to, and said $100.00 is now due them according to the agreement, and for interest thereon at six per cent, from date until collected.”

Upon appeal to the county court and after jury had been impaneled and sworn to try the case, plaintiffs read their original petition, being an amplified statement of the cause of action, as shown by the record from the justice court. At this stage of the proceedings, the defendant interposed an oral general exception to the original petition, which was sustained by the court. Plaintiffs were given leave to amend. After the amendment was filed, the defendant insisted orally that a new cause of action had been set up and that the county court did not have jurisdiction. This was also sustained by the court, and the cause dismissed at plaintiff’s cost. We have read the amended pleading, and have concluded that the learned trial judge erred in dismissing the case. In Mayes v. Magill, 48 Tex. Civ. App. 548, 107 S. W. 363, it is held that, where an original petition sought a recovery upon a specified sum as commissions for procuring a purchaser for real estate, an amended petition, embodying the allegations in the original petition, but with greater amplification and additional allegations showing that plaintiffs procured a purchaser for defendant’s real estate, and that defendant was indebted in the specified sum for commissions, did not set up a new and different cause of action.” Thompson v. Baird, 146 S. W. 354. It was not necessary for plaintiffs to amend at all in the county court but they had the right to do so, if they saw fit. In our opinion, the amendment is based upon the identical cause of action upon which the plaintiffs recovered in the justice court.

Either party may plead any new matter on appeal to the county court, though it was not presented in the justice court, so long as no new cause of action is set up by such amended pleading. Am. Com. Co. v. C., R. I. & G. Ry., 140 S. W. 377. White Dental Mfg. Co. v. Hertzberg, 92 Tex. 528, 50 S. W. 122; Mershon v. Bosley, 62 S. W. 799; Gholston v. Ramey, 30 S. W. 713; Harold v. Barwise, 10 Tex. Civ. App. 138, 30 S. W. 498; Fowler v. Michael, 81 S. W. 321.

The rule is too well established to require a citation of authorities that strict rules of pleadings in force in the district court are not applicable to an appeal from the justice court to the county court, since the county court in the trial de novo sits as a justice court. •

The judgment is reversed, and the cause remanded.


author: MeMEANS, J.

text:
    GULF COAST TRANSP. CO. v. DILLARD.
    (Court of Civil Appeals of Texas. Galveston.
    Jan. 9, 1914.
    Rehearing Denied Feb. 5, 1914.)
    1. Carriers (§ 132) — Damages to Shipment —Burden of Proof.
    In an action against a carrier for damages to a shipment of rice delayed in transportation, the burden was on plaintiff to show, not only that the damage occurred in transit, but to show the market value of the rice in the condition in which it should have been delivered to the consignee, and also its market value in the condition in which it was delivered.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 578-582, 605; Dec. Dig. § 132.]
    2. Carriers (§ 134) — Damages to Shipment —Proof of Amount.
    In an action against a carrier for damages to a shipment of rough rice delayed in transportation, evidence of the consignee’s account sales of the rice after it had been milled, and more than three months after receipt of the shipment, was insufficient as proof of the market value of the rice in its condition when it reached its destination, within the rule requiring plaintiff to prove such value as the basis for damages.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 588-592, 607; Dee. Dig. § 134.]
    Appeal from Liberty County Court; J. B. Simmons, Judge.
    Action by G. S. Dillard against the Gulf Coast Transportation Company and another. From a judgment against the defendant named, it appeals.
    Reversed and remanded.
    A. W. Marshall, of Anahuae, for appellant. E. B. Pickett, Jr., of Liberty, for appellee.

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

   MeMEANS, J.

G. S. Dillard brought this suit against the Gulf Coast Transportation Company, a corporation, and the Texas & New Orleans Railroad Company, to recover damages for alleged-injury to a shipment of rice from a point on Old river in Chambers county to the city of Houston, alleged to have been caused by improper handling, delay, and failure to protect the same from the weather. The ease was tried before a jury, and resulted in a verdict and judgment in favor of the defendant Texas & New Orleans Railroad Company, and in favor of plaintiff against the defendant Gulf Coast Transportation Company for' $313.07, from which the last-named defendant has appealed.

The plaintiff alleged, in substance, that on or about November 14, 1910, plaintiff delivered to the defendants 531 sacks of Honduras rough rice, which contained 608 barrels, at warehouse No. 4, of Old River Rice Irrigation Company, in Chambers county; that the defendants then and there accepted said rice to be safely and securely carried by them to the city of Houston, in Harris county, Tex., for a reasonable and proper compensation to be paid on the delivery thereof; that said shipment of rice was to be carried by the defendant Gulf Coast Transportation Company from said warehouse by barge to the town of Clinton on Buffalo bayou, in Harris county, and from thence by the defendant Texas & New Orleans Railroad Company to the city of Houston for delivery to the consignee, the Standard Milling Company. Plaintiff charged that defendants wrongfully and negligently failed to properly and safely transport said rice with due diligence and speed, but through their negligence and carelessness allowed said rice to remain for an unreasonable length of time unprotected from the weather, and on that account said rice was exposed and suffered serious damage, so that when it finally reached Houston, about December 20, 1910, it had greatly depreciated in value. Plaintiff alleged that had said rice been properly and promptly carried to Houston, it would have reasonably been worth a market value of $2.75 per barrel, making a total value thereof of $1,620, but by reason of the negligence of the defendants in transporting same said rice had been damaged and deteriorated until it could be sold on the market for only $1,358.93, being the sum of $313.07 less than its market value had the same been promptly and safely transported. The allegations of the petition in regard to the shipment, number of sacks shipped, delay in transportation, and failure of the carrier to protect the rice against the weather, whereby it became damaged, were substantially proved as alleged. The evidence shows that the rice was shipped from warehouse No. 4 of the Old River Rice Irrigation Company in Chambers county on November 14,1910, consigned to the Standard Milling Company in Houston, and that the shipment was not delivered to the consignee until December 26, 1910, and that when delivered it had been damaged to a considerable extent. The evidence sufficiently shows that the rice at the time and place of shipment was of a high grade, classing as No. 1, and that its market value at the time and place of shipment was $2.75 per barrel, and at Houston it was about 11 cents per barrel more.

By an appropriate assignment of error appellant contends that the evidence did not warrant the rendition of a judgment against it, for the reason that the evidence did not show the reasonable market value of the rice in the condition it was when delivered to the consignee. The measure of damages for goods injured in the course of transportation is the difference in the market value thereof in the condition they should have arrived at destination, had they been handled expeditiously and with care, and the market value in the condition in which they did arrive. This being the rule, it was incumbent upon plaintiff, not only to show that the rice, or a part thereof, was damaged in'transit, but to show the market value of the rice in the condition in which it should have been delivered to the consignee had it been transported expeditiously and with care, and also the market value of the same in its damaged condition, when delivered. Plaintiff, recognizing this rule, attempted to make the requisite proof, and did sufficiently prove the market value of the rice in Houston had it not been- damaged in course of transportation, and attempted to prove the market value of the rice in the condition in which it reached its destination by introducing in evidence the account sales of the consignee, the Standard Milling Company; but such account sales did not show the market value of rough rice, it being such when delivered to the consignee, but of the rice after it had been milled, and such account sales were dated March 28, 1911, and April 4, 1911, respectively, more than three months after the consignee had received the shipment. Unless the dates of the account sales shall be taken as the date upon which the milled rice was sold, there is no evidence to show when the sale was made. We think the account sales as evidence were lacking in that definiteness of proof of market value at the time and place of delivery required by the rule above stated, and as the proof was not otherwise made, the plaintiff did not discharge the burden resting upon him to show to what extent he had been damaged. Eor this reason the court should have granted defendant’s motion for a new trial.

All the assignments of error urged by appellant have been carefully examined by us, but, other than the error indicated, we think the record discloses none that is reversible.

The judgment of the court below is reversed, and the cause remanded.

Reversed and remanded.


author: REESE, J.

text:
    DULLER v. McNEILL.
    (Court of Civil Appeals of Texas. Galveston.
    Jan. 27, 1914.)
    1. Homestead (§ 96) — Vendor’s Lien — Enforcement.
    Where vendor’s lien notes were executed for part of the purchase money of certain real estate, and renewal notes, thereafter given for the originals, also expressly reserved a lien, the fact that in the' meantime the property had become the homestead of the purchaser and his wife did not prevent its sale on foreclosure of the lien.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 147-153; Dec. Dig. § 96.]
    2. Homestead (§ 96) — Vendob’s Lien — Enforcement — Attorney's Fees.
    Where vendor’s lien notes, given for the price of land, provided for attorney’s fees in case it was necessary to employ attorneys to collect the note, the fact that the land subsequently became the homestead of the purchaser and his wife did not prevent the enforcement of the lien for the attorney’s fees, as well as for the amount of the notes.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 147-153; Dec. Dig. § 96.]
    3. Vendor and Purchaser (§ 274) — Vendor’s Lien Notes — Consideration.
    Where vendor’s lien notes were given for the purchase price of certain realty, and thereafter were taken up and a new note given for the amount due on the originals, and the renewal note also reserved all the rights to the lien that were conferred by the originals, it was not material that the original notes included borrowed money, as well as the consideration for the land.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 769-771; Dec. Dig. § 274.]
    Appeal from District Court, Harris County; Wm. Masterson, Judge.
    Action by W. A. McNeill against David M. Duller and wife. Judgment for plaintiff, and defendant Carrie Nell Duller appeals.
    Reversed and reformed in part. Affirmed in part.
    See, also, 161 S. W. 45.
    Baldwin & Baldwin, of Houston, for appellant Sam, Bradley & Fogle, of Houston, for appellee.

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

   REESE, J.

This is an action by W. A. McNeill to recover of David M. Duller and his wife, Carrie Nell Duller, upon two certain promissory notes, executed by defendants, and secured by the vendor’s lien on separate parcels of land, together with interest and attorney’s fees. Upon trial with a jury, at the conclusion of the evidence, the court instructed the jury to return a verdict for plaintiff against both defendants for the amount due upon said notes, including interest and attorney’s fees, and for foreclosure of the lien as prayed for, also for the insurance premium paid, which was done, and judgment rendered accordingly. Defendants made a motion for a new trial, which was overruled, whereupon the defendant Carrie Nell Duller alone prosecutes this appeal.

It was alleged in the petition, in substance, that on November 9, 1905, defendants executed to J. C. Means four promissory notes payable to the order of Means, three of which were for $300 each, payable, respectively, July 1, 1910, January 1, 1911, and July 1, 1911, and the fourth one for $225.37, payable January 1,1912, each bearing interest from date at 8 per cent, per annum, and providing that all past-due interest should bear a like rate, and each note providing that failure to pay it, or any installment of interest, when due should, at the option of the holder, mature all of said notes, and providing, further, in the usual terms, for the payment of 10 per cent, attorney’s fees, if not paid when due and placed in the hands of an attorney for collection. It was alleged that these notes were given in part payment of lots 8. and 9 in block 103 in, Houston Heights, and were secured by the vendor’s lien retained in the deed and notes on said property. It was alleged that afterwards, on June 23,1911, the notes remaining unpaid, defendants reguested the' Louisiana & Texas Lumber Company, which had become the legal owner and holder thereof, and of the superior title to the land, by assignment thereof to extend the time of payment thereof, whereupon defendants executed to said company their single note for the amount of said four notes, to wit, $1,226.15 (being one of the notes sued upon), in lieu of said four notes, in which this fact was recited, and the vendor’s lien was expressly retained and reserved as in the original notes. This last note was due three years from its date, with-Interest at 8 per cent, per annum, payable semiannually, and it was provided, as in the original notes that failure to pay any installment of interest when due should,- at the option of the holder, mature the note, and there was a provision for the payment of 10 per cent, attorney’s fees in the usual terms, that in due course of trade and for value the Louisiana & Texas Lumber Company indorsed said note to plaintiff, and he is now the legal owner and holder thereof, and at the same time said company transferred and assigned to him the vendor’s lien and superior title to the kind. It was further alleged that on June 22, 1911, defendants executed to C. A. McKinney their certain promissory notes for $505, payable three years after date, with interest at the rate of 8 per cent, per annum, payable semiannually, and providing that failure to pay any installment of interest when due should, at the option of the holder, mature the note, and also providing in the usual terms for payment of 10 per cent, attorney’s fees. It was alleged that this note was given for the purchase money of lot 10 and the south half of lot 11 in block 103 in Houston Heights, which was on said date conveyed by said McKinney to defendants, and was secured by the vendor’s lien expressly retained in said deed and note, and that said note and the superior title to the land and vendor’s lien were duly assigned, indorsed, and transferred by McKinney to plaintiff, and he is now the legal owner and holder thereof. It was averred that defendants failed and refused to pay the semiannual installments of interest. due on said last-mentioned note on December 22, 1911, and on June 22, 1912, and on the first-described note on December 23, 1911, and June 23, 1912, whereupon, the plaintiff, being the legal owner and holder thereof, exercised his option and declared both of said notes due,' placed the same in the hands of attorneys for collection, and agreed with them to pay them 10 per cent, thereof as attorney’s fees for collection, which was a reasonable attorney’s fee. It was further averred that on, June 23, 1911, at the time of the execution of the note for $1,226.15, and for the purpose of securing payment of said note and the other for $505, plaintiffs executed their mortgage deed of trust upon the property aforesaid, in which said instrument it was provided that defendants should keep the property insured for $1,500, the policy to be delivered to and kept by plaintiff, and that in the event they should fail to do so, the holder of the notes might pay said insurance and the same should be secured by said mortgage. Said mortgage was also transferred to plaintiff. It was averred that, on account of the failure to pay the premium due for insurance, plaintiff was compelled to pay the sum of $54, part of said premium which, under the terms of said mortgage, is due and owing to him by defendants as part of the indebtedness secured thereby. Defendants in their answer set up certain special exceptions, which need not be stated. They pleaded general denial and specially denied that the notes were due when, this suit was filed, except the accumulated interest, and allege that plaintiff had no right to exercise his option to declare said notes due, that plaintiff had never presented the notes, or either of them, to them for payment of the semiannual installments of interest as alleged, and that they did not know, except by the assertion of others, that plaintiff was the owner of the notes; that they are now and have always been ready and willing to pay the installments of interest due to the rightful owner of the notes, and they tendered the amount so due into court, and pray that the same be credited on the notes, and that plaintiff be not allowed to recover anything further. It was averred that plaintiff had waived his right to declare the notes due for failure to pay said installments of interest, for that he had, through one Barker, his. agent, informed defendants that it would not be necessary to pay such installment, but that, in the event plaintiff should conclude to demand such payment, he would notify defendants in ample time to enable defendants to, make such payments; that defendants relied upon this, and plaintiff never at any time gave them such notice, until they were notified by plaintiff’s attorneys that they had the notes for collection, the whole amount being demanded. It was further ' averred that the property for which the notes were given was their homestead, that they are and were at the time of said purchase, husband and wife, living together as such, -and constituting a family, and that they immediately moved upon and occupied the property as their homestead,, and. that, by reason of this fact, plaintiff had no right to exercise-his said option, to declare-the notes due, nor to charge the attorney’s fees upon the property as a lien. The court upon the verdict of the jury rendered a judgment against both, defendants for the amount due, principal, interest and attorney’s fees, on the notes, and foreclosing tlte respective vendor’s liens, and also rendered judgment for tlie $54 insurance premium paid by plaintiff, without lien, however, as to this.

We have set out so fully the allegations of the plaintiff’s petition for the reason that they may stand also as conclusions of fact. Every material allegation of the petition with regard to the execution of the several notes, the transfer of the same to plaintiff, and his present ownership thereof, were established by the undisputed evidence. The notes and other documents set out were introduced in evidence, and contained the various provisions set out in the petition. The allegations of the petition as to the failure to pay the several installments of interest were established likewise by the undisputed evidence. The testimony of plaintiff and his agent Barker was positive and emphatic as to continued demands upon defendant Duller for this interest. The following letter from Barker to defendant David M. Duller, which he admitted having received, was introduced in evidence: “Mar. 28th, 1912. Mr. David M. Duller, Houston Heights, Texas — Dear Sir: I write you again in regard to the interest which is due on your note. This as you will remember was due on December 22nd last, which is now more than three months past due. Parties who we turn notes to will not take them unless the interest is paid promptly on them, and if we turn notes and the interest is not paid they expect us to collect it or take the notes back again, which would be impossible for us to do in every ease. The holder of your notes has advised me that there will have to be something done soon. X will now say to you that you will have to make some arrangements by April the tenth. I give you this time so it will give you time to arrange the matter. If you can get some one to take up the whole matter and carry it for you I will be glad to let you do that. Am very sorry to put you to any inconvenience, but this must be attended to and I advise you this much in advance so you can avoid any further trouble or. expense in the matter. Hoping that you will attend to it at once, I am, Yours very truly.”

The notes were not declared due until default in the payment of the interest. An examination of the testimony of Duller shows that in fact the notes were not presented to him when the payment of interest was demanded, but when his testimony on cross-examination is considered, there is no substantial denial that the payment of the overdue interest was demanded of him, and that he knew that plaintiff was or claimed to be the holder of the notes. The court was justified in assuming that there was no issue of fact for the jury, but that all of the facts material to a recovery by plaintiff were established by the undisputed evidence, and we are justified in finding as our conclusions of fact that all of the material allegations of the plaintiff’s petition are true. The facts alleged with regard to the payment of the insurance premium were also established by the undisputed evidence, as well as to the reasonableness of the attorney’s fees. It was also» shown that the property became and is now the homestead of defendants, who are husband and wife.

The first assignment of error complains of the judgment is so far as it is a personal judgment against the appellant, Mrs. Carrie Nell Duller, for any part of the debt. Ap-pellee in his brief confesses error as to this part of the judgment. The judgment against Mrs. Duller, except as to the foreclosure, was not authorized. This does not require a reversal of the entire judgment, however. The judgment will be reformed so as to eliminate this feature, leaving it to stand as rendered against David M. Duller (who does not appeal), and as to Mrs. Carrie Nell Duller as to the foreclosure of the respective liens.

The fact that the property was made the homestead of Mrs. Duller after its purchase cannot affect any rights of the original vendor in regard to the unpaid purchase money under the contract of purchase, nor the rights of the holder of the notes for the unpaid purchase money in their lien duly reserved. The renewed note for $1,226.15, given in lieu of the four original purchase-money notes and the assignment thereof, expressly reserved to the payee thereof all of the rights preserved in the original notes to the vendor, and stands exactly on the same footing as the original notes. The fact that the deed from Means to Duller does not provide that failure to pay installments of interest shall, at the option of the holder of the notes given to him, mature the notes, did not affect such right expressly given in the four original notes, and in the renewal note, the' mortgage given by Duller and wife to secure the same, and in the instrument of acknowledgment executed by Duller and wife to the Louisiana & Texas Lumber Company when they procured the extension. The fact that the property was the homestead of appellants was of no importance. The stipulation as to the effect of failure to pay the semiannual installments of interest necessarily authorized a suit on the notes upon the happening of this contingency, and this necessarily authorized a foreclosure of the lien, and the fact that the property was the homestead of the parties did not, in any way, affect the right expressly given to the holder of the note. The second and third assignments of error are without merit and are overruled.

The fourth assignment of error complains of the judgment in so far as it forecloses the lien upon the homestead for the attorney’s fees. There is no merit in appellant’s contention on this point. The homestead right is subordinate to the rights of the vendor, which passed to the holder of the note and lien growing out of the purchase-money contract. When the contingency occurred calling for the payment of attorney’s fees, they became a part of the consideration agreed to be paid for the land, and a part of the note secured by the lien. Neese v. Riley, 77 Tex. 348, 14 S. W. 65; Baker v. Collins, 4 Tex. Civ. App. 520, 23 S. W. 493. In Walters v. Building & Loan Ass’n, 8 Tex. Civ. App. 500, 29 S. W. 54, and Harn v. Am. Mutual Bldg. Ass’n, 95 Tex. 79, 65 S. W. 176, it was held that in the case of a mechanic's or materialman’s lien on the homestead for improvements thereon, the contract to pay attorney’s fees could not be enforced as a lien on the homestead. The distinction between those cases and the one here presented rests upon the fact that the property was not the homestead at the time the obligation was given, and that the homestead right accrued only upon compliance with the obligation for payment of the purchase money in all of its stipulations. In the cases cited by appellant the lien was given upon an established homestead, for improvements, and was limited by the provisions of the Constitution to the debt incurred for that purpose, as is shown in the Walters Case cited. It is true that when the renewal note was executed the property was the homestead, but this note, as we have stated, stood exactly in the place of the original notes. It is not, we think, satisfactorily shown that attorney’s fees provided for in the original notes were added to the amount of those notes and embraced in the new note for $1,226.15; but, if they were, the parties had a right to adjust the matter in obtaining the extension by so agreeing to make this the amount of the debt, and to give a new note for the principal, interest, and attorney’s fees provided for in the ¡original notes, and to provide also for payment of attorney’s fees on the new note. They deliberately so contracted, and we know no reason why they should not be allowed to do so. This objection applies only to the note for $1,226.15. The note for $505 was the original note given to McKinney for the purchase money of the other lot and a half.

The evidence was undisputed that plaintiff was the legal owner and holder of the notes as alleged. The sixth assignment is overruled.

The court did not err in sustaining the objection of appellees to the testimony offered by appellant to show that the true consideration for the purchase money of lots 8 and 9 was less than the amount shown in the notes, and that the notes also included borrowed money. The evidence was excluded on the ground that there was no pleading to support this contention of appellant. In this there was no error. We are inclined to think that this would have been no defense to the foreclosure of the lien. By the express terms of their contract appellants agreed to pay this amount as purchase money. In the renewal note to the Louisiana & Texas Lumber Company the whole amount was treated as purchase money. Whatever right of homestead there was in appellants was subject to the rights of the original vendor growing out of the purchase as set out in the contract, which rights wholly passed to and were held by appellee. The parties so contracted, as they had a right to do, and there is no reason why they should not be governed by the terms of their contract. At any rate, when the matters came to be adjusted by appellants and the holders of the original notes, with a view to the extension, it was again stipulated that the amount of the renewal note was for the purchase money of the lots, and secured as such by the express lien reserved. Having thus secured the extension, it would be unconscionable to allow appellants to avoid the condition on which it was obtained.

The remaining assignments of error need not be discussed. What has been said substantially disposes of them, and they are overruled.

The personal judgment against Mrs. Duller, as has been stated, is reversed. Except as to this portion of the judgment it is in all things affirmed as to Mrs. Duller. As David M. Duller does not appeal, the judgment as to him is not disturbed. The costs of the appeal are adjudged against appellee.

Reversed and reformed in part.

Affirmed in part.