author: WILSON, C. J.

text:
    WHITE SEWING MACH. CO. v. SNEED et al.
    (No. 1286.)
    (Court of Civil Appeals of Texas. Texarkana.
    March 11, 1915.
    Rehearing Denied April 1, 1915.)
    1. Principal and Agent <S=>124 — Authority of Agent — Question for Court.
    Where the authority of an agent has been, conferred in writing, the fact and scope of the agency are for the court, and parol evidence of the principal as t'o the authority of the agent is inadmissible.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. § 724; Dec. Dig. <§=124.'J
    2. Principal and Agent <§=122 — Authority of Agent — Question for Court.
    Where the authority of an agent has been conferred in writing, testimony of a third person dealing with the agent as to statements made by the agent as to his authority is inadmissible under the rule that declarations of an agent are inadmissible either to prove agency or to establish the extent of the agent’s authority.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 416-419; Dec. Dig. <§= 122.]
    3. Appeal and Error <§=928 — Questions Reviewable — Transcript — Presumptions.
    Where the transcript contains a requested charge by appellant, but does not show that it was given, the court on appeal may not assume that it-was given.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3749-3754; Dec. Dig. 928.]
    ■ 4. Principal and Agent 105 — Authority op Agent.
    An agent employed to solicit orders for sewing machines and transact such other business for his principal, in the way of adjusting disputes and making settlements, as may properly enter into the business of the principal, and to operate under the direction of the principal and assist in making collections, adjusting differences, et'c., has no authority to bind Ms principal by accepting sewing machines in satisfaction of the debt of a dealer as evidenced by notes given by him to the principal.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 298-310, 374; Dec. Dig. <S==>105.]
    5. Principal and Surety <®=»78 — Liability op Surety.
    A surety on the bond of a dealer in sewing-machines, conditioned on his paying the seller every liability existing or which may be incurred, is not relieved from liability for machines obtained by the dealer, though subsequently disposed of by him and third persons as partners.
    [Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. § 124; Dec. Dig. <⅜½>78.]
    6. Corporations <®==>642 — Foreign Corporations — Eight to do Business.
    A foreign corporation, selling in a sister state machines to a resident of Texas, does not transact business in Texas within Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 13⅛-1318, and it may transact the business without procuring a permit, and, as an incident thereto, it may take a bond as security for payment of the price and sue on the bond.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2520-2527; Dec. Dig. ⅞=>642.]
    Appeal from Dallas County Court; E. B. Muse, Judge.
    Action by the White Sewing Machine Company against R. L. Sneed and others. • From a judgment for defendants, plaintiff appeals.
    Reversed and remanded for new trial.
    In the suit resulting in the judgment from which this appeal is prosecuted, appellant, a corporation under the laws of the state of Ohio and plaintiff below, sought a recovery against appellee R. L. Sneed, as the maker of four promissory notes in its favor — one for $246, dated October 24,1906, due in one year; another for $47S.14, dated December 29, 1906, due November 1, 1907; another for $120, dated February 16, 1907, due in 12 months; and the other for $121.07, dated March 2, 1907, due March 2, 1908 — and also sought a recovery against said Sneed, as the principal, and against appellees J. J. Mann, W. F. Lovett, W. J. Patrick, and C. M. Edwards, as the sureties, on a bond for $1,000, dated June 9, 1906, made by said Sneed to secure the payment of “any and every indebtedness or liability now existing, or which may hereafter in any manner exist or be incurred on the part of the said R. L. Sneed to the White Sewing Machine Company.” It appeared from the testimony that at the time the bond was made. Sneed was a dealer in sewing machines, and that the bond was made to induce the machine company to sell him sewing machines on a credit. The notes sued on were made to cover sums due by Sneed for such machines sold to him by the machine company. It further appeared that one J. H. Sneed, a brother to said R. L. Sneed, was the machine company’s soliciting and selling agent in Texas at the time the bond was made, and at the times of the transactions thereafterwards had between the machine company and said R. L. Sneed, and that the sewing machines covered by the notes were' ordered by said R. L.- Sneed of the machine company through its said agent, J. H. Sneed. It further appeared that said R. L. Sneed, J. H. Sneed, and one E. E. Sneed, another brother to R. L. Sneed, in February, 1907, became partners, and, under the name of the Sneed Trading Company, engaged in the business of selling sewing machines until the fall of that year, when the copartnership was dissolved. It appears from the record that on the trial of the cause appellees admitted appellant’s “cause of action as alleged in its petition against them, save and except in so far as said cause of action is defeated in whole or in part by the defenses” interposed by said appellees to the recovery sought by appellant against them. Those defenses were: (1) That R. L. Sneed, at the time said partnership was dissolved, had paid the notes sued on by delivering sewing machines of value sufficient for that purpose to J. H. Sneed as the agent of appellant; (2) that the sureties on the bond were released because the credit the bond was made to secure for R. L. Sneed was used by and for the benefit of the Sneed Trading Company, without the knowledge or consent of said sureties. The court submitted both the defenses to the jury, and rendered judgment that appellant take nothing by its suit against appellees on a verdict as follows:
    “We, the jury, find from the evidence that J. H. Sneed was acting in the scope of his authority as a representative of the White Sewing Machine Company. And we further believe J. H. Sneed received the 40 machines in question, the same being sufficient to pay all indebtedness due the company from the defendant, and we therefore find for the defendant R. L. Sneed and bondsmen.”
    Saner & Saner and L. C. Huvelle, all of Dallas, for appellant. W. T. Savage, Gano & Gano, and H. C. Jarrel, all of Dallas, for appellees.
   WILSON, C. J.

(after stating the facts as above). [1] The authority possessed by J. H. Sneed as the agent of appellant was conferred upon him by a letter written to him by appellant. From this letter it appeared that said J. H. Sneed was employed by appellant—

“as a traveler [quoting] on the road for the solicitation of orders and the transaction of such other business in the way of adjusting disputes, making settlements, etc., as may properly enter into our business.”

In the letter was a statement as follows:

“It is understood you are to operate under our direction and be ready at all times to render such assistance as you can in the way of making collections, adjusting differences, etc.”

As explanatory oí the nature of J. H. Sneed’s agency, the court permitted appellant to prove by its general manager, Chase, that said J. H. Sneed’s duties were to solicit orders from merchants and dealers in sewing machines, and to send to appellant at Cleveland, Ohio, for approval or rejection, orders for machines taken by him and bonds by the purchasers to secure the payment of the purchase price of machines ordered. But the court refused to permit appellant to prove by said Chase that J. H. Sneed had no authority to make a contract for it, and no authority to accept for it as a satisfaction of R. L. Sneed’s indebtedness to it the sewing machines said R. L. Sneed claimed he turned over to said J. H. Sneed for that purpose. The refusal of the court to make the proof specified is the basis of the first and second assignments.

As we view the ease, the court did not err when he excluded the testimony referred to. It was not pretended that J. H. Sneed possessed any authority as appellant’s agent other than that conferred upon him by the letter. Therefore it was the duty of the court, and not of witnesses, to construe that letter and determine the extent of the power it conferred upon the agent. 1 Clark & Sky-les on the Law of Agency, § 214 et seq., where it is said that:

“If the authority [of an agent] has been conferred by writing, * * * the fact and scope of the agency are questions of law, and are properly decided by the judge.”

Over appellant’s objection thereto on the ground that the declarations of an agent are inadmissible to prove his authority as such, the court permitted appellees to prove by R. L. Sneed that J. H. Sneed told him he (J. H. Sneed) had authority as appellant’s agent “to adjust such settlements as that,” meaning the one whereby said R. L. Sneed claimed he had paid the notes sued upon by delivering sewing machines to J. H. Sneed for appellant, and further told him that, “when he saw a firm in failing condition, he would take charge of the matters and settle all the affairs'.” It is believed the objection should have been sustained and the testimony excluded. The rule is that the admissions and declarations of an agent “are not admissible for the purpose either of proving the fact of agency, or of establishing the nature and extent of his authority.” 1 Clark & Skyles on the Law of Agency, § 465. In their brief appellees say that the assignment attacking as erroneous the action of the court in admitting the testimony specified should be overruled, because, as they aver is true, the court—

“specifically charged the jury that they were not to consider any statement or representation of J. H. Sneed, either written or spoken, as evidence showing that J. H. Sneed was the duly authorized agent of the White Sewing Machine Company, either to accept machines or to apply same upon the indebtedness to the White Sewing Machine Company.”

The contention is not supported by the record sent to this court. There is in the transcript what purports to be a charge requested by appellant to the effect specified, but it does not appear to have been given by the court to the jury, and it is believed we should not assume that it was given to them.

As the cause will be remanded for a new trial in the court below, we think it proper to suggest that, if the testimony is the same on that trial as it was on the one resulting in the judgment now reversed, the jury should be instructed to find in favor of appellant, as prayed for in its petition. 11 is believed the court should construe the letter referred to as failing to confer upon J. I-I. Sneed authority, as appellant’s agent, to bind it by his act in accepting, if he did, of R. L. Sneed, the sewing machines in satisfaction of the debt evidenced by the notes sued upon; and it is not believed that the fact that R. L. Sneed, after purchasing sewing machines of appellant, treated same, and permitted his partners to treat same, as a part of the stock in trade of the Sneed Trading Company, is a reason why the sureties on the bond sued on should be relieved of liability to appellant. If it appeared that appellant was seeking to hold the sureties on R. L. Sneed’s bond liable for sewing machines it had sold to the firm of which he was a member, a different question would be presented. But what appellant sought to do was to hold the sureties liable for the debt incurred to it by R. L. Sneed for sewing machines purchased of it by him. It is not believed that appellant’s right to look tó the bond as security could be affected by the disposition made of the machines by said R. L. Sneed after he purchased same.

The contention made by appellees in their brief that appellant was not entitled to maintain its suit on the bond, because it was a foreign corporation and had not secured a permit to transact business in this state as required by law (articles 1314 to 1318, Vernon’s Statutes) is not believed to be tenable. The sewing machines were sold to R. L. Sneed in Ohio, and not in Texas; therefore the statute invoked was not applicable to those transactions. Having a right to sell the machines as it did, without securing a permit to transact business in this state, as an incident thereto, we think appellant had a right, without such a permit, to take the bond as security for the payment of the purchase price of the machines. Security Co. v. Panhandle National Bank, 93 Tex. 575, 57 S. W. 22; Jackson Woolen Mills v. Moore, 154 S. W. 642.

The judgment is reversed, and the cause is remanded for a new trial.
      <©=^For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      (gzAFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: TALBOT, J.

license: Public Domain

text:
    TEXAS & P. RY. CO. et al. v. WHITE.
    (No. 7267.)
    (Court of Civil Appeals of Texas. Dallas.
    March 6, 1915.
    Rehearing Denied April 3, 1915.)
    1. Trial <@=>296 — Instructions — Errors Cured by Other Instructions.
    In an action against the initial carrier and a connecting carrier for damages for delay in transit and for rough handling of live stock, where the evidence showed that any rough handling occurred on the line of the connecting carrier, any error in an instruction authorizing the jury, on finding certain facts, to find defendants jointly liable, was rendered harmless by the connecting carrier’s special charge eliminating its liability for delay, but leaving it liable for the rough treatment shown to have been occasioned by its own acts or default.
    [Ed. Note. — Eor other cases, see Trial, Cent. Dig. §§ 705-713, 715, 716, 718; Dec. Dig. <@=> 296.]
    2. Carriers <@=>219 — Carriage oe Live Stock — Liability oe Initial Carrier.
    The initial carrier of an interstate shipment of live stock is liable for all damages, whether occasioned by its acts or default or the acts and default of its connecting carrier.
    [Ed. Note. — Eor other cases, see Carriers, Cent. Dig. §§ 950, 951; Dec. Dig. @=>219.]
    3. Carriers <©=>219 — Injury to Live Stock —Contract.
    A connecting carrier receiving an interstate shipment from the initial carrier, to be delivered at destination under the initial contract, was bound by the terms thereof and by conversation between the shipper and the initial carrier’s agent in regard to the market the shipper wished the cattle to reach.
    [Ed. Note. — For other cases, see .Carriers, Cent. Dig. §§ 950, 951; Dec. Dig. @=>219.]
    4. Appeal and Error <@=>1066 — Trial <@=> 252 — Instructions Without Evidence —
    In an action against such carriers for damage from alleged delay and rough handling, where there was evidence that none of the cattle had broken legs or were killed, or that the cars in which they were carried were jammed together, a charge that if the trains in which they were carried were roughly handled by “ramming or jamming cars together, knocking cattle down and against each other, thereby injuring them,” was without proper support in the evidence, and prejudicial.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4220; Dec. Dig. <@=>1066; Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. <@=>252.]
    5. Trial @=244 — Instructions — Singling Out Evidence.
    Such charge was also improper because it singled out facts in the case and unduly emphasized their importance.
    [Ed. Note. — Eor other cases, see Trial, Cent. Dig. Si 577-581; Dec. Dig. <@=>244.]
    6. Appeal and Error <@=>204 — Harmless Error — Examination of Witness.
    Where it was not objected in the lower court that the hypothetical question to a witness did not coi'rectly present the evidence in respect to an inquiry as to the amount of shrinkage of cattle and the damage suffered by the shipper by reason of alleged delay and rough handling error, therein, if any, was not ground for reversal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1149, 1258-1272, 1274-1278. 128Q. 1569; Dec. Dig. <@=>204.]
    7. Appeal and Error <@=>204 — Harmless ' Error — Admission oe Evidence.
    Where a telegram upon which a witness stated that he based his opinion as to the decline of. the cattle market for such cattle as were shipped, inadmissible as original evidence, was .inquired about by defendant on cross-examination and its contents fully disclosed, any error in allowing the witness to testify as to the market conditions based on such telegram was not ground for reversal.
    [Ed. Note.-1 — For other cases, see Appeal and 'Error, Cent. Dig. §§ 1149, 1258-1272, 1274-1278, 1280, 1569; Dec. Dig. <@=>204.]
    8. Appeal and Error <@=>757 — Briefs—Af-firmance.
    A brief declaring that appellant agreed to the sufficiency of the statement of the nature and result of the suit by its codefendant and adopted its codefendant’s brief, so far as applicable to its own contentions, and suggesting certain counter propositions, - etc., and which contained no assignments of error and pointed out no assignments of error mentioned by its codefendant applicable to its “contentions,” did not comply with the rules, and judgment against it would be affirmed.
    [Ed. Note — For other cases, see Appeal and Error, Cent. Dig. § 3092; Dec. Dig. <@=>757.]
    9. Appeal and Error <@=>774 — Review — Fundamental Error.
    Material error apparent on the face of the record affecting the appellant’s rights makes it the duty of the Court of Civil Appeals to consider the matter, notwithstanding it is not presented by a brief conforming to the rules.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3096, 3097; Dec. Dig. <@=> 774.]
    Appeal from District Court, Kaufman County; F. L. Hawkins, Judge.
    Action by J. B. White against the Texas & Pacific Railway Company and others. Judgment for plaintiff, and defendants appeal.
    Affirmed in part, and reversed and remanded in part.
    W. Dorsey Brown, of Kaufman, and Leake & Henry, of Dallas, for appellants. Wynne, Wynne & Gilmore, of Wills Point, for appel-lee.
   TALBOT, J.

Appellee sued the appellants, Texas & Pacific Railway Company and the St. Louis, Iron Mountain & Southern Railway Company, to recover damages for an alleged delay in transit and rough handling of a shipment of cattle from Terrell, Tex., to East St. Louis, Ill. The allegations of the petition, in substance, are: That on the 25th day of February, 1911, he entered into a contract with the agent of the defendant Texas & Pacific Railway Company, at Terrell, to ship five cars of cattle from Terrell to the National Stock Yards at East St. Louis, Ill.; said shipment to be transported over the Texas & Pacific Railway from Terrell to Texarkana, Tex., thence over the St. Louis, Iron Mountain & Southern Railway to destination. That the cattle were intended for a catch market, and the agent of the Texas & Pacific Railway .Company, at Terrell, was informed and knew the purposes for which the cattle were being shipped, and that they were intended to reach the market of February 27, 1911. That the ordinary and usual running time from Terrell to East St. Louis was from 32 to 30 hours, and, had the shipment been handled with ordinary care and dispatch, they would have reached their destination on the night of February 26, 1911, and been ready for the market of the next day. That the cattle were negligently delayed in transit, and did not reach their destination until 5 o’clock in the afternoon of February 27, 1911. That on the 28th day of February, 1911, the market price of such cattle as plaintiff’s were had declined at least 20 cents per hundred pounds. That the cattle were negligently and roughly handled en route. ■ That the cattle had to remain in the pens at the National Stock Yards over night of February 27th, and during that night encountered a snowstorm. That, as a result of the acts of the defendants, plaintiff claimed that his cattle were damaged to the amount of $1,359.59. The appellant Texas & Pacific Railway Company answered by a general demurrer and general denial. The appellant St. Louis, Iron Mountain & Southern Railway Company denied under oath each of the material allegations of the plaintiff’s petition, except that portion of same alleging a contract with the agent of the Texas & Pacific Railway Company, at Terrell, in relation to which it averred it had not sufficient knowledge or information to form a belief. It further averred affirmatively: That, at the time the shipment was tendered to it at Texarkana by the initial carrier, the shipment had already been aboard cars from Terrell to Texarkana some nine or ten hours, and that it was impossible for the Iron Mountain Railway Company to transport the shipment from Texarkana to East St. Louis and get the cattle to the stock pens within the greatest limit of time permitted by the laws of the United States to keep cattle continuously confined aboard cars without feed, water, and rest. That the plaintiff had signed a written agreement extending the time from 28 to 36 hours. That, in order to comply with the law, it was necessary to unload the cattle into the pens at Little Rock, Ark., which was done. That plaintiff’s shipment consisted of only five cars of cattle, which was less than a train load, and this defendant transported the shipment out of each division point on its line of railway on the first train, leaving such division point, and over each division of its line of railway the train carrying the plaintiff’s shipment moved within its schedule time. A jury trial resulted in a verdict and judgment in favor of the plaintiff against both appellants for the sum of $500, and they appealed.

The first two assignments of error presented by the appellant St. Louis, Iron Mountain & Southern Railway Company are to | I the effect that the court erred in instructing the jury that the two defendants were jointly liable, if liable at all, to the plaintiff. In disposing of these assignments, we think it sufficient to say that whatever error, if any, there may have been in manner and form of submitting the liability of the two railway companies in the court’s general charge, such error was cured or rendered harmless by the special charge given at the instance of the appellant St. Louis, Iron Mountain & Southern Railway Company, in reference to its duties and liability in transporting the cattle. After correctly defining “negligence” and “ordinary care” and telling the jury that the failure of either of the appellants to use ordinary care in the handling of the cattle and in forwarding them to their destination with reasonable promptness and dispatch would be negligence, the facts authorizing a verdict in favor of the plaintiff were grouped and the jury simply told, if they found such facts to exist, to find for plaintiff. By the special charge requested by the appellant St. Louis, Iron Mountain & Southern Railway Company and referred to above, the jury was charged as follows-

“The jury is instructed: That the defendant St. Louis, Iron Mountain & Southern Railway Company was not under any obligation to transport the cattle of plaintiff over its road in any particular time or in any season for any particular market. That the extent of the obligation and duty of the St. Louis, Iron Mountain & Southern Railway Company in regard to the time of transportation was to transport the same over its railroad in a reasonable time under all of the circumstances and conditions, and if you find and believe from the evidence that, under all of the circumstances, the shipment was transported by that defendant in a reasonable time while the shipment was in its hands, then you will not find anything against the defendant on the plaintiff’s claim of delay.”

| There was no testimony, so far as the record discloses, tending to show that the cattle were roughly handled by the appellant Texas & Pacific Railway Company. Whatever rough handling there may have been occurred, according to the testimony contained in the record and the finding of the jury, while the shipment of cattle was in the hands of the St. Louis, Iron Mountain & Southern Railway Company. Under the special charge quoted, the jury was distinctly instructed, if the shipment was transported by the latter company in a reasonable time while the shipment was in its hands, not to find anything against it on plaintiff’s claim of delay. So that since the undisputed evidence showed that, if there was any rough handling of the cattle, the same occurred on the road Of the appellant St. Louis, Iron Mountain & Southern Railway Company, and since the special charge told the jury, in effect, unless they found there was unreasonable delay in the transportation of the cattle by the St. Louis, Iron Mountain & Southern Railway Company, to find for that company on that issue, the jury was not authorized to assess I any damages against that company not occasioned by its acts or default, and hence no material error, if any at all, was committed by the court in submitting to the jury the question of joint liability of the two defendants.

The Texas & Pacific Railway Company, being the initial carrier, was liable for all the damages, whether occasioned by its acts or default or the acts and default of its connecting carrier.

The third and fourth assignments of error of the appellant St. Louis, Iron Mountain & Southern Railway Company, complaining of the admission over tts objection of certain testimony in relation to a conversation had between the appellee and the local agent of the Texas & Pacific Railway Company, at Terrell, at the time or just before the cattle were received by that company for shipment in regard to the market appellee wished his cattle to reach, etc., will also be overruled. The shipment of appellee’s cattle was a through shipment from Terrell, Tex., to East St. Louis, Ill. The St. Louis, Iron Mountain & Southern Railway Company, as a connecting carrier, received the shipment from the initial carrier at Texarkana, to be transported thence to the point of destination under said contract, and was, it occurs to us, bound by the terms thereof. If this view is correct, it follows also that the court did not err in refusing to give the Iron Mountain Railway Company’s special charge made the basis of its fifth assignment of error, instructing the jury not to consider for any purpose against it such conversation.

The sixth assignment of error of the St. Louis, Iron Mountain & Southern Railway Company is as follows:

“The court erred in the language used in its charge to the jury submitting the issue of rough handling in that that portion of the charge was a charge upon the weight of the evidence, unduly emphasized the slight evidence of rough handling, and was not supported by anything in the record.”

We think this assignment must be sustained. Upon the issue of rough handling of the cattle, the court charged the jury .that if they believed from the evidence that the train or trains in which the cattle were being conveyed between Terrell, Tex., and East St. Louis, Ill., was or were roughly handled, ramming or jamming the cars together, knocking the cattle down and against each other, thereby injuring them, and if they further found that thq manner in which the cattle were handled was negligent, and that the negligence (if any) in so handling them, or negligence (if any) in delaying them in transit (if they were so delayed), either.or both resulted in damage to such cattle, causing them to shrink in weight and lose in appearance, then to find for the plaintiff such damages (if any) as resulted to the cattle therefrom. The only testimony bearing upon that issue is that of the witness 6. Scott, introduced by the appellee. He testified on direct examination:

“I accompanied plaintiff’s cattle on the shipment in question here. We started from Terrell and had a very good run. We lost an hour at Hawkins, I believe, and ran very well to Tex-arkana, and then we commenced falling down clear on into St. Louis. We only had about six cars, I believe, from Terrell to Longview,' and they never stopped to switch with us or throw any cars against us and knock us around until we got upon the Iron Mountain. It seemed like we got a local train out of there. We stopped and switched more, and they shoved cars down on us, which knocked the cattle around and against the car and knocked the hair off of them a little bit. It seemed like the cattle were handled a little rougher after we left Argenta; seemed like they didn’t give us no run out of there. The train stopped every once in a while, and they were doing more work on it than they had been, picking up more cars and switching more, shoving cars down, and pushing them out they switched more. After the cattle got to St. Louis, I saw them that afternoon and the next morning early. The cattle looked pretty tough the next morning; they looked tired. There wasn’t any of them crippled. I could see that there was hair knocked off of the cattle in places on the hips."

Testifying to the condition of the cattle when they arrived at East St. Louis, ha said:

“There was no damage to the cattle to speak of; they were just laid out.”

On redirect examination he testified:

“When I testified on cross-examination that there was no damage to the cattle to speak of, I meant there were no legs broken, no dead ones; that is about the size of it. Of course, they were damaged from being out so long. That is where the damage was. There wasn’t any damage from broken legs or being dead, ribs shrunk, or nothing like that.”

The appellant’s witnesses testified, in substance, that the handling was no rougher than that necessarily incident to transportation of cattle on railroad trains. This court has heretofore held, and it is well settled by the authorities generally, that it is improper for the court to single out any one fact in a case and, by too prominently placing the same before the jury, unduly impress them with the idea of its importance. Railway Co. v. O’Conner, 78 S. W. 874. It is also error for the court to charge, as is contended by the appellant St. Louis, Iron Mountain & Southern Railway Company, upon facts which are not in evidence. Both of these well-established rules have been violated, we believe, by that portion of the court’s charge assailed by the assignment of error under consideration. It will be observed that the charge' tells the jury that if the train or trains in which the cattle were being transported were roughly handled, by “ramming or jamming the oars together, knocking the cattle down and against each other, thereby injuring them,” etc. (italics ours), to find for the plaintiff such damages as resulted to the cattle therefrom. It is clear, we think, that the “phraseology used by the court in submitting this issue to the jury was overdrawn and calculated to give the issue a significance in the mind of the jury to which it was not entitled under the evidence.” There is no evidence that the cars, or the “train or trains,” in which’ the cattle were being conveyed were “rammed or jammed together,” or that the cattle, or any of them, were knocked down or against each other by any such handling of the train or trains, or otherwise, as indicated in the charge. In such state of the evidence the use of the intense terms, “ramming,” or “jamming” the cars together, and the language “knocking the cattle down and against each other, thereby injuring them,” was improper and prejudicial to the appellant St. Louis, Iron- Mountain & Southern Railway Company and requires a reversal of the case as to it.

The other assignments of error have been examined with the conclusion reached that neither of them points out reversible error. The hypothetical question referred to in the seventh and eighth assignments of error does not fairly state or reflect the evidence upon which it was based, and the telegram referred to in the statement accompanying said assignments, and upon which the witness stated that he based his opinion that the cattle market for such cattle as he had shipped had declined from Monday to Tuesday (the latter being the day his cattle were sold) from 10 to 20 cents, was inadmissible as original evidence, but these matters, as they come to this court, cannot be reviewed and a reversal predicated upon them. The point does not seem to have been made in the lower court that the hypothetical question put to the witness did not correctly present the facts in evidence in relation to the matter inquired about, and the explanation of the court appended to the bill of exceptions reserved to the admission of the testimony, showing the contents of the telegram mentioned, discloses that said telegram was inquired about by the appellant on cross-examination and its contents fully disclosed. In this state of the record we would not be warranted in reversing the case on the ground urged that there was error in admitting the testimony of the plaintiff’s witnesses of their opinion as to the amount of the shrinkage of plaintiff’s cattle, and the damage suffered by him, or that the witness should not have been allowed to testify in regard to the condition of the market based on said telegram. So much we have thought proper to say in this connection because of the probability of another trial.

The appellant/Texas & Pacific Railway, Company has not filed a brief in this court in accordance with the rules, and the judgment of the district court as to it will be affirmed. There is what purports to be a brief filed by it found in the record, which announces that,:

“This appellant agrees to the sufficiency of the statement of the nature and result of the suit by its codefendant St. Louis, Iron Mountain & Southern Railway Company and adopts the brief of its codefendant filed herein, as far as same may be applicable to the contentions of this appellant, and in addition thereto .suggests the following counter proposition,’-’ etc.

This purported brief does not contain a single assignment of error, nor does it point out any assignment of error mentioned by its codefendant which is applicable to its “contentions.” Furthermore, what its “contentions” are, aside from the counter proposition whiefc. it states, and which cannot be considered for the want of an assignment of error, are not stated. We are left, then, unaided to search the brief of the appellant St. Louis, Iron Mountain & Southern Railway Company for some assignment of error presented by it that may be applicable to some supposed contention of appellant .Texas & Pacific Railway Company, and upon it reverse the case as to it. This we are not required to do, and would not be authorized to do so.

Of course, if there was a material error apparent on the face of the record affecting the Texas & Pacific Railway Company’s rights, it would be our duty to consider the matter, but there is no such error disclosed by the record. Therefore the' judgment of the court below as to the appellant Texas & Pacific Railway Company is affirmed, and, for the reason indicated, said judgment as to the appellant St. Louis, Iron Mountain & Southern Railway Company is reversed, and the cause remanded.

Affirmed in part; reversed and remanded in part
      @=>For other oases see same topic and-KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    REED v. MISSOURI, K. & T. RY. CO. OF TEXAS.
    (No. 7268.)
    (Court of Civil Appeals of Texas. Dallas.
    March 6, 1915.
    Rehearing Denied April 3, 1915.)
    1. Carriers <§=o317 — Carriage oe Passengers — Injuries to One Boarding Train-Evidence.
    In an action for injuries received by plaintiff when attempting to board its train, evidence was inadmissible that each year in October during the continuance of a fair it was customary for the crowd at the station in question t’o board defendant’s train from both sides; the plaintiff’ having been injured in July.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1295, 1297-1305; Dec. Dig. <@=> 317.)
    2. Appeal and Error ⅞^>499 — Reservation oe Grounds oe Review — Exception to Charge — Statute.
    Under Rev. St. 1911, art. 1971, as amended by Acts 33d Leg. c. 59, providing that after the evidence has been concluded the court’s charge shall be submitted to the parties for inspection, and a reasonable time given them to present their objections, which shall be handed to the court before the change is read to the jury, and providing that all objections not so presented shall be considered waived; where the record failed to show that any objection was urged to certain paragraphs of the court’s • charge, or that any bill of exceptions was reserved, the assifnments of error based thereon could not be considered.
    [Ed. Note. — For other cases,' see Appeal and Error, Cent. Dig. §§ 2295-2298; Dec. Dig. 499.)

      3. Teial <S=o257 — -Requested Instructions— Time bob Asking.
    Under Rev. St. 1911, art. 1973, as amended by Acts 33d Leg. c. 59, providing that either party may present such instructions as he wishes to be given, and the court may give or refuse them, provided such instructions shall be submitted to opposing counsel for examination and objection within a reasonable time after the charge is given to the parties for examination, where the bill of exceptions of the plaintiff, to the refusal of the court to give special charges requested, showed that such charges were presented after the main change of the court was read to the jury, error could not be predicated on the action of the court in refusing such charges.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 642-645; Dec. Dig, <®^257.]
    Error from District Court, Hunt County; Wm. Pierson, Judge.
    Action by Clifford B. Reed against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for defendant and plaintiff brings error.
    Affirmed.
    N. E. Peak, R. F. Spearman, B. Q. Evans, and H. L. Carpenter, all of Greenville, for plaintiff in error. Chas. C. Huff, of Dallas, and Dinsmore, McMahan & Dinsmore, of Greenville, for defendant in error.
   TALBOT, J.

The plaintiff in error, hereinafter called plaintiff, sued the defendant in error, who will hereinafter be referred to as defendant, to recover damages for personal injuries alleged to have been received by him through the negligence of the defendant. It is alleged, in substance, that on the 23d day of July, 1912, about 10 o’clock at night, plaintiff went to defendant’s passenger station at Greenville, Tex., intending to take passage to Pickton, Tex.; that when he arrived at said station one of defendant’s passenger trains was waiting to receive passengers and he attempted to board the same for the purpose of becoming a passenger; that it was usual and customary for persons intending to board defendant’s trains at Green-ville to enter the same on either side thereof; that plaintiff attempted to board the train in question on the opposite side thereof from the depot house while said train was standing still and at a point where the gate of one of the coaches was open; that while in the act of boarding said train the agents and servants of defendant, knowing that plaintiff was in the act of doing so, or chargeable with notice thereof, negligently caused said train to start suddenly and without warning with a quick, unusual, and unnecessary jerk or lurch, whereby plaintiff was violently thrown to the ground, one of his feet crushed by the wheels of the car, and amputation thereof made necessary. The defendant denied the allegations of the plaintiff’s petition and answered specially that at the time he was attempting to board the train on the opposite side thereof from the passenger station, and at a place not designated,, .prepared, or used for entering and leaving the .train, and without knowledge of the defendant’s servants, and. also that plaintiff was boarding said train for the purpose of riding to a point near his home where said train stopped, and without any intention or purpose to become a passenger, and that plaintiff was a trespasser. The defendant also specially answered that plaintiff negligently attempted to board the train while intoxicated, thereby causing his injuries; also by special answer averred that plaintiff was an epiletic, and that by reason of said affliction fell under the wheels of the car and was injured. The ease was tried before the court and a jury, and the trial resulted in a verdict for the defendant.

Objections are urged to the consideration of appellant’s first assignment of error on the grounds that it is too general and is not accompanied by such a statement of the pleadings and evidence as to enable the court to determine whether there was error in the ruling complained of or not. We are inclined to think the objections are well taken, but have concluded, especially, since we think the court did not err in the ruling assailed, to overrule them. The assignment is to the effect that the trial court erred in refusing to permit witnesses offered by appellant to testify that during the two weeks of the Dallas Fair in the month of October, of each year, for several years prior to, the time plaintiff was hurt, it was usual and customary for persons going to the fair to board defendant’s trains at its station at Greenville on both sides of the train. The testimony seems to have been offered in justification of the action of the plaintiff in attempting to get upon defendant’s train on the opposite side thereof from the station house. There is no pretense that at the time of the accident complained' of the Dallas Fair was in operation. This was in the month of October of each year, and plaintiff alleged and testified that the accident, in which he was injured, happened July 23, 1912, and it would have appeared from the testimony excluded, had it been admitted, that the custom sought to be established was limited to the time the fair was running. Under these circumstances the excluded testimony was immaterial, irrelevant, and properly rejected.

The second and third assignments of error complain, respectively, of the fifth and sixth paragraphs of the court’s general charge. The consideration of these assignments is objected to for the reason that the record fails to show that any objection was urged to said portions of the charge in the lower court, or bill of exceptions reserved to the giving of the same. The assignments, for the reasons urged, cannot be considered. Article 1971 of the Revised Statutes of. 1911, as amended by Acts 33d Leg. c. 59, provides that after the evidence has been concluded- in the trial of a cause, the court’s charge shall be submitted to the respective parties or their attorneys for inspection, and a reasonable time given them to examine it and present objections thereto, which objections shall be presented to the court before the charge is read to the jury, and all objections not so made and presented shall be considered as waived. In numerous decisions of the appellate courts of this state construing this statute, it is held that objections to the court’s general charge “must be disregarded on appeal unless the appellant shows, by bill of exceptions taken and incorporated into the record, that such objections were made and presented before the charge of the court was read to the jury. We cite a few of the decisions, namely: Ins. Co. v. Rhoderick, 164 S. W. 1067; Railway Co. v. Wadsack, 166 S. W. 42; Heath v. Huffhines, 168 S. W. 974; Railway Co. v. Chumbley, 169 S. W. 1107; Railway Co. v. Becker & Cole, 171 S. W. 1024; Railway Co. v. Eogleman, 172 S. W. 558. No such bill of exceptions is found in the record in this case, and, as stated, the assignments in question cannot be considered.

The fourth and fifth assignments of error complain, respectively, of the refusal of the court to give special charges Nos. 1 and 2 requested by appellant. The consideration of these assignments is objected to on the ground that it appears from the bills of exception reserved to their refusal, and otherwise by the record, that they were presented and requested after the main charge of the court was read to the jury. It does so appear, and the objections must be sustained. Article 1973 of the amended statute referred to above reads:

“Either party may present to the judge, in writing, such instructions as he desires to be given to the jury; and the judge may give such instructions, or a part thereof, or he may refuse to give them, as he may see proper, and he shall read to the jury such of them as he may give; provided, such instructions shall be prepared and presented to the court and submitted to opposing counsel for examination and objection within a reasonable time after the charge is given to the parties or their attorneys for examination.”

The bills of exception reserved by appellant to the refusal of the special charges show upon their face that this statute was not complied with in presenting said charges. The statute quoted requires that special charges requested shall be prepared and presented to the court and submitted to opposing counsel for examination and objection within a reasonable time after the main charge is given to the parties or their attorneys for examination. This clearly means before the main charge is read to the jury. 'Otherwise the purposes of the statute could not well be accomplished. The bills of exception show that the special charges were not presented to the court with the request that they be given until after the general charge was delivered to the jury. In regard to the requirement of the statute just mentioned, this court, in Railway v. Eogleman, supra, speaking through Associate Justice Rasbury, said:

“The necessity and importance of showing such facts affirmatively by the bill is obvious from an inspection of article 1971, relating to the court’s general change, and article 2061, relating to the giving or refusing of special charges, both amended at the same time that article 1973 was amended. By the two articles it is contemplated clearly that all attacks upon the charge to be given to the jury, whether by the general charge or by specially requested charge, shall be submitted to the trial judge in advance of reading same to the jury, in order that he may add to or correct same, if erroneous. Failing to do so, ‘all objections not so made and presented shall be considered as waived,’ as relates to the general charge; and, as relates to the giving or refusing of special charges, the court’s action ‘shall be regarded as approved, unless excepted to’ in the manner stated,” Horton v. Railway Co., 171 S. W. 1023; W. R. Case & Sons Cutlery Co. v. A. I. Folsom, 170 S. W. 1066.

The evidence warrants the verdict rendered, and, no fundamental error appearing, the judgment entered thereon is affirmed.

Affirmed.
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author: HALL, J.

text:
    CITY OF CLARENDON v. BETTS.
    (No. 740.)
    Court of Civil Appeals of Texas. Amarillo.
    March 6, 1915.)
    1. JURY <§=>82 — IRREGULARITY 1ST DRAWING— Waiver.
    Irregularity in drawing the jury is waived when not raised until after adverse verdict, where the party was informed of the irregularity as soon as the jury retired, but then made no objection.
    [Ed. Note. — For other cases, see Jury, Cent. Dig. §§ 282, 307-309, 331, 332, 348, 359; Dec. Dig. <§=>82.]
    2. Municipal Coepobations <§=>742 — Torts —Private Nuisance — Negligence.
    Where a city creates and maintains a nuisance to the injury of a private person, the question’of negligence of the city is not in issue.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 1560, 1563; Dec. Dig. ⅜⅛742.]
    3. Municipal Corporations <§=3837 — Torts —Sewers—Private Nuisance.
    A city installing and maintaining a sewer outlet to the injury of a private person maintains a nuisance.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 1786; Dec. Dig. <§=> 837.]
    4. Nuisance <§=>50 — Permanent Nuisance— Damages.
    The measure of damages to a private person caused by a city creating and maintaining a nuisance permanent in character is the depreciation in the value of the person’s land occasioned by the nuisance.
    [Ed. Note. — For other cases, see Nuisance, Cent. Dig. §§ 118-127; Dec. Dig. <§=>50.j
    5. Municipal Corporations <§=31037 — Actions — Judgment. _
    _ A judgment against a city in an action against it for a nuisance should order the issuance of execution against it in the absence of any statute forbidding it, though no levy can be made on any property owned and held by the city for public purposes.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 2208, 2210; Dec. Dig. <§=>1037.]
    6. Mandamus <©=>116— Judgment Against City — Compelling Levy or Taxes.
    Mandamus lies to compel a city to levy of taxes to pay a judgment against it, but only the surplus of the revenues of the city above the amount for t'he operation of the city government may be applied to the payment of the judgment.
    [Ed. Not§. — For other eases, see Mandamus, Cent. Dig. §j 243-248; Dec. Dig. <§=>116.]
    Appeal from District Court, Donley County; Jas. N. Browning, Judge.
    Action by Mrs. Eva R. Betts against the City of Clarendon. From a judgment for plaintiff, defendant appeals.
    Reformed and affirmed.
    A. T. Cole and E. A. Simpson, both of Clarendon, for appellant. H. B. White, of Clarendon, and Synnott & Underwood, of Amarillo, for appellee.
   HALL, J.

Appellee filed this suit in the district court of Donley county to recover damages on account of appellant’s act in creating a nuisance by installing and maintaining a sewer near plaintiff’s premises. There was a verdict and judgment for plaintiff for the sum of $1,500, from which this appeal is prosecuted.

By agreement the ease had been set for trial for Monday of the third week. There being no regular jury for this week, the court directed the sheriff to summon as jurors only parties residing outside the corporate limits of the town of Clarendon. Defendant objected to such instructions, insisting that residence within the corporate limits of the city of Clarendon did not disqualify one as a juror. The court then remarked that the instructions given to the sheriff limiting him in the selection of the jurors would be withdrawn, and he would direct the officer to summons the jury from the body of the county. It appears from the bill cf exceptions that, if the court’s direction was ever withdrawn, the sheriff did not hear it, and in summoning jurors he summoned only men living without the limits of the city. This matter is the basis for the first assignment of error. No objection was made until after the case had been submitted to the jury, a verdict had been returned, and the motion for new trial filed. It is shown in the motion for new trial that appellant’s counsel were informed by the sheriff just after the jury had retired that the court had not withdrawn the instructions to him, and that in summoning the jury he had carefully avoided summoning any one who was a resident of the town. Appellant should have objected immediately. Its counsel, however, said nothing about it to the court, but took their chances upon a favorable verdict, and it is too late to raise the question in a motion for new trial. A party cannot speculate under such conditions, and, after the return of an unfavorable verdict, insist that he has been prejudiced by the action of the court. The irregularity was waived by the delay. Olivaries v. Railway Co., 37 Tex. Civ. App. 278, 84 S. W. 248; Rector v. Hudson, 20 Tex. 236; Clements v. Crawford, 42 Tex. 601; Sinsheimer v. Edw. Weil Co., 129 S. W. 187.

It is contended under the second assignment that the court erred in refusing to direct a verdict for appellant. When the fact of the existence of a nuisance of this class is established, the issue of negligence is foreign to the controversy (City of Paris v. Jenkins, 57 Tex. Civ. App. 383, 122 S. W. 411), and the allegation of negligence is sur-plusage (29 Cyc. 1155). The proposition under this assignment is confusing and contradictory. Certainly, “there being no proof of temporary damages,” and no proof of permanent damages, there was no issue to be submitted to .the jury. But if, as is asserted in the proposition, “there is evidence amply sustaining the allegations relating to temporary damages,” a peremptory instruction would be improper. It is admitted by appellant in the argument under this assignment that “there was an abundance of testimony on the part of the plaintiff that the sewer out-fall stank most noxiously; that the stench could be frequently smelled a quarter mile, half mile and a mile and more.” If so, the court did not err in refusing to direct a verdict for defendant.

There is sufficient evidence in the record to warrant the jury in concluding that the nuisance was permanent in its character. If so, the measure of plaintiff’s damages is the depreciation in the value of her land occasioned thereby. City of Paris v. Allred, 17 Tex. Civ. App. 125, 43 S. W. 62; Denison & P. S. Ry. Co. v. O’Maley, 45 S. W. 227.

The charge predicated appellee’s right to recover upon the existence of negligence, which was even more favorable to appellant than it should have been.

The judgment did not provide for the issuance of an execution, but ordered the city council to levy, assess, and collect an additional tax for the payment thereof. In the absence of a statute expressly prohibiting it, execution may run against a municipality, but no levy can be made upon property owned and held by. the city for public purposes. Gordon v. Thorp, 53 S. W. 357. While mandamus will lie to compel the city council to levy and assess taxes for the payment of a judgment against the city, the extent of this power to tax is limited by the provisions of the Constitution, and only the surplus of the revenues over and above the amount necessary for the operation and conduct of the city government can be applied to this purpose. Dillon, Municipal Corp. (5th Ed.) §§ 1506, 1507; Corpus Christi v. Woessner, 58 Tex. 462; Sherman v. Smith, 35 S. W. 296; San Antonio v. Routledge, 46 Tex. Civ. App. 196, 102 S. W. 769. This suit has none of the features of a mandamus proceeding, and that portion of the judgment ordering the city council to levy, assess', and collect taxes for the purpose of satisfying the judgment is unsupported by the pleadings and proof, and will be set aside.

The judgment will be further amended by ordering the issuance of execution, and, as here reformed, is affirmed.

Reformed and affirmed.
      <gr=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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author: CARL, J.

text:
    GULF, C. & S. F. RY. CO. et al. v. KING.
    (No. 5442.)
    (Court of Civil Appeals of Texas. San Antonio.
    March 24, 1915.)
    1. Appeal and Eeeoe <@=>722 — Assignments op Eeeoe — Motion poe New Teial — Conformity.
    Under Rev. St. art. 1612, providing that, when a motion for a new trial has been filed, the assignments therein shall constitute the assignments of error, and need not be repeated in the assignments on appeal, an assignment of error in that plaintiff’s shipment was an intrastate shipment within article 1830, subd. 25, requiring the apportionment of damages between the several carriers, and claiming that there was no allegation in the petition apportioning the damages, was not a substantial copy of the assignment in the motion for a new trial, “because the court erred in overruling defendants’ special exception denoted second in each of their answers,” and would not be considered.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 2990-2990; Dec. Dig. <§= 722.]
    2. Appeal and Eeeoe <§=>499 — Exceptions— Presentation and Ruling.
    Where the record does not show that an exception was ever presented to the trial court and overruled, or, if overruled, that appellant excepted thereto, and where the trial court’s judgment does not show that it was presented, it will not be considered on appeal.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 2295-2298; Dec. Dig. <§=> 499.]
    3. Caeeiees <§=>227 — Action eoe Injuet to Live Stock — Pleading—Measuee op Damages.
    The petition in an action for injury to a shipment of live stock, alleging generally that it was damaged to the extent of $600, without allegation as to its market value at the point of destination, was sufficient; since, when there is evidence to take the case to the jury, it is for the court to instruct on the measure of damages.
    [Ed. Note. — Por other cases, see Carriers, Cent. Dig. §§ 232, 953-956; Dec. Dig. <§=>227.]
    4. Caeeiees <§=>229 — Action eoe Injuet to Live Stock — Evidence—Maeket Value.
    In such action, evidence as to the market value of the stock at destination in the condition in which they arrived and what it would have been had they been delivered in proper time and condition was admissible; and the fact that they were sold at auction was immaterial, especially where it did not appear that the sale was below the market price.
    [Ed. Note. — Por other cases, see Carriers, Cent. Dig. §§ 930, 963, 964; Dec. Dig. <§=>229.]
    5.Caeeiees <§=>228 — Action eoe Injuet to Live Stock — Peesumptions—Negligence.
    Where a shipment of horses was delivered in good condition to the initial carrier, and by it delivered in such condition to its connecting carrier, and on arrival at destination they were thin, weak, and in bad condition, and one was dead, there was a presumption of negligence on the part of the connecting carrier, conclusive in the absence of explanation.
    [Ed. Note. — Por other cases, see Carriers, Cent. Dig. §§ 957-960; Dec. Dig. <§=>228.]
    Appeal from Jim Wells County Court; L. Broeter, Judge.
    Action by J. W. King against the Gulf, Colorado & Santa Pé Railway Company and others. Judgment for plaintiff, and certain defendants appeal.
    Affirmed.
    Greer & Hamilton, of Laredo, for appellants. Dougherty & Dougherty and H. S. Bonham, all of Beeville, for appellee.
   CARL, J.

Appellee sued the Texas Mexican Railway Company, the International & Great Northern Railway Company, the Missouri, Kansas & Texas Railway Company of Texas, and the Gulf, Colorado & Santa Pé Railway Company, to recover $500 damages on account of the alleged negligent handling of a shipment of horses from Hebbronville to Meridian. The usual allegations are made with reference to delay, rough handling, jostling, jolting, and injuring the stock; that the horses were fat and in good condition when accepted for shipment, and were thin, weak, skinned, and bruised, and one dead, on arrival at destination, and another died after arrival. The jury returned a verdict for $15 against the International & Great Northern Railway Company; $35 against the Missouri, Kansas & Texas Railway Company of Texas ; and $450 -against the Gulf, Colorado & Santa Pé Railway Company. The Texas Mexican Railway Company and the International & Great Northern Railway Company did not file a motion for new trial, and did not appeal. The other railways filed a joint motion for a new trial, and, when it was overruled, perfected this appeal.

The first assignment will not be considered, because it is not a substantial copy of the assignment as set forth in the motion for new trial. Rev. Stats, art. 1612; Cain v. Delaney, 157 S. W. 751; Edwards v. Youngblood, 160 S. W. 288. The assignment in the brief of appellant makes complaint that, because this was an intrastate shipment, it comes within the provisions of article 1830 of the Revised Statutes, subd. 25, requiring the apportionment of damages between the several roads, and claims that there is no allegation in the petition so apportioning the damages. When we turn to the paragraph of the motion for a new trial it reads:

“Because the court erred in overruling defendants’ special exception denoted second in each of their answers.”

The record does not show that the exception here urged as the basis of this assignment of error was ever presented to the trial court and overruled by him; and, if it had been presented and overruled, it is not shown that appellants excepted to the action of the court in so overruling same. Jackson v. Nona Mills Co., 128 S. W. 928; Quanah, A. & P. Ry. Co. v. Galloway, 165 S. W. 546; Smyer v. Ft. Worth & D. C. Ry. Co., 154 S. W. 336. Furthermore, the judgment of the trial court does not contain, any reference to the special exceptions, or show that same were ever presented. See Hales v. Peters, 162 S. W. 386; Sowers v. Yeoman, 129 S. W. 1153; Reason-over v. Riley Bros., 150 S. W. 220.

The second assignment of error complains that:

“The court erred in admitting over defendant’s objection, the testimony of S. T. King, and afterwards in considering the same, to the effect that the market value of the horses at Meridian, had they been delivered uninjured, would have been §65 to §70 per head, and in their injured condition was $50 per head, because the plaintiff has no allegation justifying said proof.”

Plaintiff’s petition does not contain any allegations as to the market value of the stock involved at the point of destination, and the defendants objected to all testimony as to what the market value was at destination on the ground that there was no allegation to support it. These objections the court overruled. Having alleged generally that the stock were damaged to the extent of $600, plaintiff below proved what the market value would have been if handled with proper care and delivered in due time and what they were worth in the condition in which they did arrive.

What is the proper measure of damages is a rule of law, to be applied by the court, as applicable to the facts given in evidence. [This court held in Railway v. Jenkins, 89 S. AV. 1107, that it was not essential to the statement of a good cause of action that the petition should set out a proper legal measure pf damages; that a statement of the facts Essential to a cause of action was all that rood pleading requires, and, when there is lividence sufficient to take the case to the lury, it is for the court to inform the jury If the measure of damages.

I In the case of M., K. & T. Ry. Go. v. Mulk-By & Allen et al., 159 S. W. 111, it is said:

I “It is true the pleading nowhere alleges that lie damage claimed is the difference between lie market value of the cattle in the condition Hi which they would have arrived, but for the Hígligence of appellant, and their market value ■ the condition in which, by reason of such Hgligenee, they did arrive. But this, in our Hinion, is immaterial. The measure of dam-Hes, being a rule of law governing the admis-Bi of testimony, has no necessary place in Hi petition. To the rule the evidence must con-Hm, and by it the jury be guided under in-^Buctions from the court; but, in stating a H>d cause of action, it is only necessary to re-He facts which, under the rule, would entitle' ^B case to go to the jury. Railway Co. v. Jenkins, 89 S. W. 1106; Railway Co. v. Smith [19 Tex. Civ. App. 114] 47 S. W. 278.”

Judge Fly said, in Railway Co. v. Sparks, 162 S. W. 943:

“If there was no valid contract, the law fixed the measure of damages in this case, and, if the written contract is valid and binding, it fixes the measure of damages. Appellee was not compelled to allege or prove a measure of damages.”

The court did not err in permitting the witness King to testify as to the market value of horses at Meridian. The fact that the horses were sold at auction is immaterial, especially since no attempt is made to show that the stock sold below the market price or that the price received was not the market price at the time of the sale. The measure of damages would be the same no matter what disposition was made of the stock; and there was no error in permitting the witness to testify as to- the market value of the horses in the condition they arrived and what it would have been if they had been delivered in the time and manner they should have been.

The second and third assignments are overruled.

The undisputed evidence shows that the horses were in good condition when delivered to the initial carrier at Hebbronville, and that they were in very bad condition when they arrived at Meridian. Some were skinned and bruised, thin, and weak, one was dead, and another died shortly after arrival. A caretaker accompanied the shipment as far as Taylor, and on arrival there one was down, but was gotten up, and Manning, the station agent at Meridian, says the , stock were very thin on arrival, and poor, with the exception of about 5 which were in good condition. There were 22' head of mares and 13 colts. Whatever damage that occurred must have happened after arrival at Taylor, where the Missouri, Kansas & Texas Railway Company of Texas took charge, and from that point there was no caretaker along.

“The delivery of the stock in a sound or uninjured condition to the initial carrier being-shown, and it further appearing that the stock were delivered to the consignee at destination in an injured condition, established a prima fa-cie case of negligence against appellants, and the burden * * ⅜ rested upon them to show that such injured condition of the stock resulted from the inherent nature or propensity or ‘proper vice’ of the animals, and without” fault or negligence “on their part. - * * * Appellants have cited several cases ⅜ ⅜ ⅜ as announcing the contrary rule above referred to and contended for by them. We have examined those cases; and, if they are not distinguishable in the facts from this case, then we think they are at variance with the decisions of the Supreme Court of this state and the weight of authority elsewhere.” St. L. & S. F. Ry. Co. v. Franklin, 123 S. W. 1150-.

And in Pecos & N. T. Ry. Co. et al. v. Brooks, 145 S. W. 649, this rule is applied where a caretaker accompanies the shipment. In the case at bar, however, there was no caretaker after Taylor was reached. Evidently the injuries occurred somewhere between Taylor and Meridian; in other words, on the Missouri, Kansas & Texas Railway Company of Texas or Gulf, Colorado & Santa Eé Railway Company line.

In T. & N. O. Ry. Co. v. Drahn, 167 S. W. 282, the court says:

“The pleading and evidence show a contract ■ for through shipment, a delivery of the cattle in an uninjured condition, and a redelivery at final destination with many of the animals dead and the others severely injured. No one accompanied the cattle for the shipper. Under these circumstances there arises a presumption of negligence on the part of the carrier which, in the absence of any explanation whatever, becomes conclusive. P. W. & D. C. Ry. Co. v. Shanley [36 Tex. Civ. App. 291] 81 S. W. 1014, and authorities there cited. So that, if in every shipping case where live stock ai-e involved negligence must be shown, the rule is met in this case.”

See, also, P. & N. T. Ry. Co. v. Meyer, 155 S. W. 309; G., H. & S. A. Ry. Co. v. Powers et al., 54 Tex. Civ. App. 168, 117 S. W. 459.

All assignments are overruled, and the judgment of the trial court is in all things affirmed.
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author: HUFF, C. J.

text:
    ELLIS et ux. v. GARRISON.
    (No. 739.)
    (Court of Civil Appeals of Texas. Amarillo.
    March 6, 1915.)
    1. Larceny <©=>10— Lost Goons.
    Where a trunk was sold in which were goods unknown to both buyer and seller, the goods, so far as the parties were concerned, were lost, and the owner is deemed to still have constructive possession, so that they may be the subject of larceny by the finder.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. § 21; Dec. Dig. <®=H0.]
    2. Larceny <®=>16 — Stolen Goons — Intent. *
    For a person to be guilty of the theft of lost goods, there must have been an intent to steal at the time of the finding, and knowledge or reasonable means of ascertaining the owner.
    [Ed. Note¿ — For other cases, see Larceny, Cent. Dig. §§ 43-45; Dec. Dig. <©=>16.]
    3. Libel and Slander ©=366 — Retraction— What Constitutes.
    A storekeeper sold a trunk in which old hats were stored. The storekeeper’s wife charged that plaintiff, the purchaser, stole the hats and stated that others encouraged her, following that charge by the statement that when the trunk was sold, it was not known the hats were in it. Held, that the last statement was not a retraction, showing as it did, that the hats were the subject of larceny.
    [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. § 168; Dec. Dig. <S=w66.].
    4. Libel and Slander <S=>7 — Liability — Meaning oe Language.
    The meaning of slanderous language must be ascertained from the language as commonly understood, and not from what defendant intended by it, and hence, regardless of defendant’s intention, a charge that plaintiff stole hats stored in a trunk sold her was a charge of theft.
    [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 17-78; Dee. Dig. <⅜337.]
    5. Libel and Slander <S=w120 — Punitive Damages — Malice.
    Where a statement was not privileged, implied malice, inferred from the wrongful act, may be sufficient to support an award of punitive damages.
    [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 350, 351; Dee. Dig. <©=> 120.]
    6. Libel and Slander <⅞=»123 — Actions — Evidence — Jury Question.
    Questions whether a charge was slanderous and whether punitive damages should be allowed held, under the evidence, for the jury.
    [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 356-364; Dec. Dig. 123.]
    Appeal from District Court, Donley County; Jas. N. Browning, Judge.
    Action by Miss Grade Florence Garrison against C. H. Ellis and wife. From a judgment for plaintiff, defendants appeal.
    Affirmed.
    H. B. White, of Clarendon, for appellants. E. A. Simpson, of Clarendon, and Reeder & Dooley, of Amarillo, for appellee.
   HUFF, C. J.

This is an action by Miss Garrison, appellee, against C. H. Ellis and his wife, Mrs. C. I-I. Ellis, appellants, for slander in accusing her of theft. From a verdict and judgment in favor of appellee for $350 actual damages, and $50 exemplary damages, appellants prosecute this appeal.

Appellants present four assignments of error. The first is the court should have peremptorily instructed a verdict for appellants, based on the proposition • that even though some of the witnesses may have stated that appellants accused the appellee of theft, it was shown on each occasion that appellants gave the true facts with reference to such accusation, amounting to an immediate retraction of the charge, and for that reason the evidence was insufficient to show actionable slander. The second assignment complains at the action of the court in submitting vindictive or exemplary damages for the reasons set out in the first assignment and for the further reason that the statements were not made maliciously or with intent to injure the appellee. The third assignment because the verdict for $50 exemplary damages was not warranted by the evidence, for the reason that there was no evidence showing that the statements made by appellants were made maliciously or with intent to injure ap-pellee. The fourth assignment, that the ver-i diet of the jury is contrary to the evidence on the grounds set out in the first assignment of error. I

It will be unnecessary to set out the plead-l ings in this case. The question presented foJ our consideration is whether there is any evil dence in the record which warranted thJ court in submitting the case to the jury anil whether the evidence is sufficient to suppoil the verdict. Miss Garrison lived with appe’l lants a short time before the transactiol about which the slanderous language weI used, and at the time of the transaction wl living at Mr. Claude Wilkerson’s. The al pellant Ellis was a merchant in the town of Lel'ia Lake, and Hiss Garrison while living at Wilkerson’s, purchased a trunk from the appellant Ellis, who sent it out to Wilkerson’s for her. The testimony shows there were some ladies’ old hats in the trunk when opened by Miss Garrison and Mrs. Wilkerson. They were burned up by them, one having been used as a bonnet around the place while at work by Miss Garrison for a short time, and when she left the place she had one of the hats which came in the trunk. It also appears that before burning the hats Miss Garrison had taken velvet off of one of them. Miss Garrison says that when she found the old hats in the trunk she supposed it was the purpose of appellants to give them to her. She had lived with them previous thereto, and the relation between the parties had been pleasant and friendly and Mrs. Ellis had given her some white waists and possibly other articles. The charge made included the taking of some furs, bút Miss Garrison and Mrs. Wilkerson both testified the furs were not in the trunk and in fact the testimony develops the furs were never placed in the trunk, but were afterwards found at the home of appellants. It appears from the testimony that Mr. Ellis, when he sold the trunk and sent it out, did not know the hats or furs were in the trunk, or had been placed there by his wife previous thereto. Mrs. Ellis said she had stored her winter hats and furs in the trunk, which was in a room above the storehouse, and when she learned of the sale of the trunk, she proceeded to make investigation, which finally resulted in this suit for slander. Mrs. Wilkerson testified about Mrs. Ellis visiting her and about what they said to each other, stating that she had told Mrs. Ellis about finding the hats in the trunk and about burning them, etc. Afterwards she visited Mrs. Ellis at her home, and while there Mrs. Ellis—

“told me that Florence stole the hats and furs and that we had encouraged her in doing it: that Mr. Wilkerson and myself had encouraged her to steal them; that was about all she said about it. She never said anything at all in that conversation about what she was going to do about it except that she was going to tell everybody in the whole country that she could see and talk to; and I said: ‘Mrs. Ellis, I don’t care what you tell just so you tell the truth; you can tell anything that is the truth about the hats and furs that Miss Florence is said to have stolen.’ ”

She testified when Mrs. Ellis first went to her house she told witness that she had stored the hats and furs in the trunk, and that Mr. Ellis sold the trunk without knowing the hats and furs were in there.

Claude Wilkerson testified he was the husband of the above-mentioned witness, and while he was in the store of Ellis, Ellis said he

“wanted to know what went with the hats and furs that were in that trunk, and I told him there were no furs in there, and he said that there were some, and I told him the hats were destroyed, all but one, and Miss Florence took one with her, and he said that story was too thm; that he did not believe the hats were destroyed, and I told him that they were. He said he did not blame Florence so much with it, but blamed me and my wife more than her, and he said he thought we encouraged her in stealing the hats and assisted her in stealing them. That is about all he said; that is, about Miss Florence stealing the hats. He said the furs were in the trunk also.”

The witness further testified that Ellis told him he did not know the hats and furs were in the trunk when he sold it, and he did not say whether Miss Garrison knew they were in there or not when she purchased the trunk.

Will Albert testified that he was the brother-in-law of Claude Wilkerson, and that he heard part of the conversation between Ellis and Wilkerson. “All I heard Mr. Ellis say was that he said Miss Florence had stolen the hats, but he blamed Wilkerson more than he did Florence; that she was just a poor, ignorant girl.” He testified that he afterwards heard about Ellis selling the trunk with the hats in it, and heard the matter frequently discussed at Lelia Lake at that time by several persons, not naming them.

Mrs. Fryar testified:

“About the 15th day of November, 1913, I went into the postoffice in Mr. Ellis’ store to cash a money order. Mr. and Mrs. Ellis was in there, and I asked Mrs. Ellis how she was getting along, and she said, T am. the maddest woman in the town.’ I asked her what was wrong, and she said, T live in a den of thieves.’ Mr. Ellis told her to hush and she said: ‘Hush, hush; that is all I hear. I am not going to hush; I am going to tell it.’ Then she told me that Mr. Ellis had put some of hers and the children’s hats in a trunk upstairs in the store, and that he later sold the trunk to Florence Garrison, and forgot to take the hats out of the trunk, and that Florence kept the hats and never brought them back.”

James L. Garrison, the father of the ap-pellee, testified that Mr. Ellis called him out back of the store, saying he (Ellis) wanted to tell him about Florence stealing the hats and furs. The witness told Ellis that he knew nothing about it. Ellis stated that he knew that, and—

“ T want you to know the straight of it,’ and he told me that there were three or four hats in the trunk and some furs and two hats, two beaver hats that cost him $20 or $25, and that those furs cost him $40 or $50. He said that Florence' stole the hats, and he wanted me to understand the straight of it as a man.”

On cross-examination he testified:

“He said that he wanted me to know that he sold the trunk to my daughter, and he told me that the hats were in the trunk without his knowledge and without my daughter’s knowledge.”

Miss Garrison, appellee, testified that while she was in the post office Mrs. Ellis approached her and said:

“ ‘Florence, what are you going to do about those hats? Tou have stolen those hats.’ I said nothing, because I burned them up and she said, ‘Tou have stolen those hats, and, more than that, you have stolen from Mrs. Wilkerson.”

She testified that Mrs. Ellis spoke in a conversational tone of voice, and she could not say for sure that others in the store heard her, but does say Homer Ellis and Mr. Ellis heard what she, the witness, said. She named four persons in the store besides herself and Mrs. Ellis, and stated that the storeroom was rather a large one, and that Mrs. Ellis talked low and that a party must have been close to hear her. The facts show that Mrs. Ellis afterwards found her furs in her residence, and they in fact were not placed in the trunk by her.

This is substantially the testimony upon the issues presented by the assignments.

The truth of the charge was not asserted in the court below' or urged in this court.

i’i ns we understand, appellant’s contention is that the fact that appellant stated when he sold the trunk he did not know the hats were in the trunk, and did not accuse appellee of the knowledge that they were when she got the trunk, is of itself, when so stated by him in connection with the charge of theft, a retraction. This statement, as will be seen from the above facts recited by us, did not occur in the explanation of the charge made to each respective witness, especially those made by the wife. In Robinson v. State, 11 Tex. App. 403, 40 Am. Rep. 790, our Court of Criminal Appeals held, in a case where a trunk was sold in which there were goods unknown to both the buyer and the seller at the time the trunk was taken from the store, that the goods, so far as these parties were concerned, were lost, for neither knew of their existence or whereabouts. The status of the case, the court held, is precisely that of the finding of lost or mislaid goods; and the law governing such a finding is the law applicable to the facts of the case. The only distinction made in the' theft of lost goods and theft of other property seems now to be that at the time of finding “the intent to steal must exist and the finder must know, or have reasonable means of knowing- or of ascertaining, the owner.” This rule, it is held by the court, in no wise contravenes the provision of our statute that the thing stolen must be taken from the possession of the owner. The owner of lost property is not divested of his right of property in it by the loss, and that right draws to it constructively the possession when found. Reed v. State, 8 Tex. App. 40, 34 Am. Rep. 732,

When appellant stated, “Elorence stole the hats,” and that others encouraged her to do it, or that they were living in a den of thieves, simply followed by the statement when the trunk was sold it was not then known the hats were in it, is to state, in so far as the parties to the transaction were concerned, the hats were lost; and simply following this statement that Florence did not return them does not, in our opinion, amount to a retraction. It had the appearance of clinching the charge by the evidence offered to the hearer by appellant. In so far as appellants were concerned, the goods were lost. The trunk was obtained from appellants’ store, and appellee should have known she did not buy them, and thereby the facts were reasonably sufficient to charge her with the knowledge of whose property the hats were. We think such a statement so made would commonly be understood as a charge of theft. The preceding declaration that she stole them was a direct charge of her fraudulent appropriation. On the question of actual and compensatory damages, it is not what appellants meant or intended by the words used, but what the words meant to the ordinary hearer. If the language is slanderous its meaning must be ascertained from the language as commonly understood, and not from what appellant intended by it. King v. Sassaman, 54 S. W. 304; Belo v. Smith, 91 Tex. 221, 42 S. W. 850, 861.

The question whether the statements made were with malice under the facts of this case was one for the jury under all the facts and circumstances. The statements charged were not privileged or qualifiedly privileged; hence actual malice was not required to be shown. Dickson v. Lights, 170 S. W. 834. “The malice to sustain the action for exemplary damages may be implied malice, implied or inferred from the wrongful act committed. King v. Sassaman, 54 S. W. 304; Cotulla v. Kerr, 74 Tex. 89, 11 S. W. 1058, 15 Am. St. Rep. 819. Malice may be inferred from the lack of probable cause, or punitive damages may be allowed where the defendant acted with recklessness or carelessness. 18 Am. t% Eng. Enc. of Law (2d Ed.) 1092c, 1903 (2d Ed.); 25 Cyc. 536 (b) and note 4. In this case, while there is testimony that the relation of the parties was friendly, the facts show, or at least they are sufficient to have authorized the jury to find after appellants had been informed of the true facts, that is, that the hats when received were regarded as old and worthless, and were burned up, as of no value, and not appropriated to the use of the appellee, they nevertheless persisted in denouncing the act as felonious, asserting they were living in a den of thieves, and that others had assisted appellee in stealing the hats, and when ap-pellee was accosted by Mrs. Ellis about it, she was not only denounced for that theft, but was accused of other thefts. It was asserted that they would tell others, and the wife was requested to hush, but asserted that she would not hush, but she was going to tell it to others, and when they were told the furs were not in the trunk, they nevertheless coupled the charge of theft with the furs, when as a matter of fact the furs were never in the trunk, but were in the home of appellants. If the facts do not prove actual malice, they show a strong case of reckless and careless disregard of the appellee’s rights.

We think the facts sufficient to support the verdict, and the case will be affirmed.
      ^pFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes