author: TALBOT, J.

text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. MARSHALL.
    (Court of Civil Appeals of Texas. Dallas.
    Nov. 1, 1913.
    Rehearing Denied Nov. 15, 1913.)
    1. Railroads (§ 479) — Fires — Issues and Pro or.
    Plaintiff could not recover for the destruction of a building by fire caused by sparks alleged to have been emitted from defendant’s railroad engine, on the ground that defendant was negligent in failing to select a .proper and suitable grade of coal as fuel, where no such ground of negligence was alleged.
    [Ed. Note. — Eor other cases, see Railroads, Cent. Dig. §§ 1706-1708; Dee. Dig. § 479.*)
    2. Railroads (§ 467*) — Right oe Wat — Private Property — Trespass—'Waiver.
    Where plaintiff’s building was constructed partly on defendant’s right of- way under an agreement with defendant’s predecessor, and though defendant had requested the removal of the building, it had waived its demand to an immediate removal, and tacitly consented that it might remain until the following July, prior to which time it was destroyed by fire set out by one of its engines, defendant, in an action for loss of the building, was not entitled to defend on the ground that the location of the building constituted a trespass.
    [Ed. Note. — For other cases, see Railroads, Cent. Digr. § 1663; Dec. Dig. § 467.*]

      3. Railroads (§ 459) — Destruction or Property — Location—Contributory Negligence.
    Where plaintiff’s building located in part on defendant’s railroad track was destroyed by fire negligently set out by one of defendant’s engines, plaintiff was not bound to assume that defendant’s servants would handle its engines negligently, and was therefore not guilty of contributory negligence in allowing the building to remain so near the track.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §| 1671-1680, 1684; Dec. Dig. § 459.]
    Appeal from Wood County Court; R. E. Bozeman, Judge.
    Action by H. C. Marshall against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Alex S. Coke, of Dallas, and Howell & Nabors, of Winnsboro, for appellant. Harris, Suiter & Britton, of Quitman, for ap-pellee.

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

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

   TALBOT, J.

Appellee sued appellant to recover the value of a building owned by him and destroyed by fire originating from sparks emitted from one of appellant’s locomotives while the same was being operated along appellant’s railroad track near Winns-boro, Tex. The building was situated partly upon appellant’s right of way, was built for a storehouse, but was unused and unoccupied at the time of the fire. It is alleged that appellant negligently failed to equip its locomotive with the most approved spark ar-rester to prevent the escape of sparks of fire therefrom, that its servants in charge thereof negligently and unskillfully handled and operated the same, and that appellant negligently used coal for fuel in firing the locomotive instead of fuel oil. Appellant answered by a general denial, pleas of contributory negligence and assumed risk, and specially that appellee’s house was on its right of way without legal right, and that in maintaining it there appellee was a trespasser. A jury being waived, the court upon a trial rendered judgment in favor of appellee for the sum of $242.25, and appellant appealed.

The court concluded from the evidence adduced, as shown by his findings of fact, that appellant used ordinary care in equipping its engine with the most approved spark ar-rester, and “was not guilty of negligence in failing to use fuel oil for fuel,” but that appellant was negligent in the selection of the grade of coal used for fuel, and that its em-ployés in charge of its engine on the occasion in question did not use ordinary care in handling the same to prevent the escape of sparks of fire therefrom, and that if ordinary care had been used the building would not have been burned. The court further found that there was an implied agreement between the appellee and the appellant that the building in question should remain where it was until July, 1911, and that the reasonable market value of the building at the time it burned was $242.25. The court further found that the building was erected by the W. G. Rag-land Lumber Company about 20 years prior to its destruction, by permission of the Sherman, Shreveport & Southern Railway Company, the then owner of the railroad.

The assignments of error challenge the correctness of the court’s conclusions of law and fact, and ask that the case be reversed and judgment here rendered for appellant, or that it be reversed and remanded for a new trial. After an examination of the record and careful consideration of the assignments of error we have concluded that neither of these things should be done, but that the judgment should be affirmed. We do not concur in the seeming conclusion of the trial judge that there was such an agreement between the Ragland Lumber Company and the Sherman, Shreveport & Southern Railway Company, in regard to the erection of a part of the building in question on that road’s right of way and the possession taken, as created the relation of landlord and tenant between them, nor do we agree that the finding of the trial court, to the effect that the appellant was negligent in the selection of the grade of coal used as fuel in the operation of its engine, furnishes any basis for the judgment rendered. The failure on the part of appellant to select a proper and suitable grade of coal as fuel was not alleged as a ground of negligence upon which a recovery was sought, and a judgment predicated upon such failure would be unauthorized. A judgment must be supported by both pleading and proof. We are of the opinion, however, that the court’s conclusions, to the effect that there was an implied agreement between appellee and appellant that the building burned should remain partly on appellant’s right of way, and that appellant’s employes operating its engine did not use ordinary care in handling the same to prevent the escape of sparks, and that the failure to use such care was the proximate cause of the building being burned, are supported and authorized by the evidence.

There is evidence, it is true, that appellant requested the appellee more than once to remove his building off of its right of way, but there is also evidence, justifying the conclusion that after the notices were given appellant, at appellee’s solicitation, waived its demand for an immediate removal of the building, and tacitly consented or agreed that it remain where it was until the following July. We do not believe it can reasonably be said, under the circumstances shown, that appellee was guilty of contributory negligence as a matter of law in allowing his building to remain so near appellant’s railroad track, and upon the issue of fact as to whether or not he was guilty of such negligence the court has found in favor of appellee. The court having found, upon evidence warranting it, that appellant’s servants were negligent in the operation of the engine, causing the building to be set on fire and burned, we would not be authorized to say appellee assumed the risk of his house being burned on account of its proximity to appellant’s road. It cannot be said that appellee knew the railway employes would negligently handle the company's engine, and he did not assume any risk arising from the negligence of appellant.

The judgment is affirmed.


source: Caselaw Access Project

author: WILLSON, C. J.

license: Public Domain

text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. McCORMICK.
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 6, 1913.
    Rehearing Denied Nov. 13, 1913.)
    1. Trial (§ 296) — Instbuctions—Construction Together.
    In an action against a carrier for personal injuries, a charge that assumed that defendant’s employes, after the train had passed the station, stopped it and caused plaintiff’s wife to leave it, when considered with another part of the charge requiring the jury to find for plaintiff, if she was negligently carried to a point, beyond the station and there induced to leave the train, was not objectionable as a charge on the weight of evidence.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 705-713, 715, 716, 718; Dee.Dig. § 296.]
    2. Trial (§ 191) — Instructions—Weight of Evidence.
    In an action against a carrier for personal injury, a charge for plaintiff that “if you find from the evidence that, after plaintiff’s wife was so injured, if she was,” she procured such remedies and took such treatment as an ordinarily prudent person would have done under the circumstances, or if such remedies and treatment, if any, had the same effect that proper treatment from a competent physician would have had, then defendant would be liable for such injury and those consequences (if any) even if, had she taken some other means, her injuries, if any, would not have resulted so seriously as the proof may show they did, was not objectionable as a charge on the weight of evidence.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 420-431, 435; Dec. Dig. § 191.*]
    3. Trial (§§ 242, 243) — Instructions—Confusing or Misleading.
    Such charge was not objectionable as being contradictory, misleading, or confusing.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 564, 565, 569-576; Dec. Dig. §§ 242, 243.]
    4. Damages (§ 62) — Duty of Person Injured to Reduce Damages.
    Where plaintiff’s wife while a passenger on defendant’s road was injured and took such means as an ordinarily prudent person would have taken to avoid the consequences of such injury, he was not to be denied a recovery because the jury might believe that, if some other means had been resorted to, the consequences would not have been so serious.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 119-131; Dec. Dig. §, 62.]
    5. Carriers (§ 348) — Personal Injuries— Instructions — Conformity to Issues.
    Where plaintiff’s wife and her father both testified, without contradiction, that as the train approached the station she prepared to leave the train and was ready with her children to leave it when it reached the station, the issue as to care on the part of plaintiff’s wife in preparing to leave the train as it approached the station was not in the case, so as to require a charge thereon.
    TEd. Note. — For other cases, see Carriers, Cent. Dig. §§ 1403-1405; Dec. Dig. § 348.*]
    6. Appeal and Error (§ 1058*) — Harmless Error — Exclusion op Evidence.
    The exclusion of evidence sought to be shown by a certain witness, if erroneous, was harmless, where the witness, in answering other questions, testified substantially as he would have testified in answering that question.
    ' [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4195, 4200-4204, 4206; Dec. Dig. § 1058.*]
    Appeal from District Court, Hunt County; R. L. Porter, Judge.
    Action by J. J. McCormick against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Alex. S. Coke, of Dallas, and Dinsmore, McMahan & Dinsmore, of Greenville, for appellant. Evans & Carpenter, of Greenville, for appellee.

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

   WILLSON, C. J.

This appeal is from a judgment against appellant, in favor of ap-pellee, for $5,000, the sum he was entitled to because of personal injuries suffered by his wife, without fault on her part, as a result of negligence on the part of appellant in failing to stop its train at the station to which she was a passenger, for a length of time reasonably sufficient to enable her to alight therefrom, and in carrying her to a point beyond said station and causing her there to leave said train.

In his charge the court told the jury, other conditions specified concurring, to find for appellee (unless they found for appellant in compliance with instructions given them in another portion of the charge), in the event, and not otherwise, they believed appellant negligently failed to stop its train at the station for a time reasonably long enough to enable her to alight therefrom, and further believed that appellee’s wife was negligently carried to a point beyond the station and was induced there to leave the train. In the other portion of the charge referred to the court told the jury to find for appellant if they believed “the train,” quoting, “was stopped at the station a reasonably suf- ¡ fieient time for plaintiff’s wife to have gotten off the train with her children and baggage, by the exercise of ordinary care,” or if they believed appellant’s servants, “after learning that she (appellee’s wife) was still on the train (if she was), exercised ordinary care for her safety in thereafter stopping the train and causing her to leave or alight therefrom.” It is insisted that the portion last quoted of the charge vas on the weight of the testimony, in that the court assumed therein as facts established, whereas they were controverted, that appellee’s wife was on the train after it passed the station and that appellant’s servants stopped the train at a' point beyond the station and caused her then to leave same. As to the criticism of the instruction that in it the court assumed that appellee’s wife was on the train after it passed the station, it plainly is not well founded, for the instruction contains no such assumption. And even if it should be said to be subject, when considered alone, to the charge that in it the court assumed that appellant’s employés, after the train had' passed the station, stopped it and caused ap-pellee’s wife to leave it, we think it would not be a reason why, when considered with reference to other parts df the charge, the judgment should be set aside. As we have seen, another portion of the charge required the jury, before finding for appellee, to believe from the testimony that his wife was negligently carried to a point beyond the station and was induced there to leave the train. n Being required so to believe, it is not at all likely the jury construed the portion of the charge objected to as meaning what appellant contends it meant. Railway Co. v. Carter, 71 S. W. 74; Railway Co. v. Douglas, 73 Tex. 325, 11 S. W. 333; Railway Co. v. Chambers, 17 Tex. Civ. App. 487, 43 S. W. 1090; Railway Co. v. Scott, 30 Tex. Civ. App. 496, 71 S. W. 26.

At appellee’s request the court instructed the jury as follows: “If you find from the evidence that, after plaintiff’s wife was so injured (if she was), she procured such remedies and took such treatment as an ordinarily prudent person, situated as she was, and under the circumstances, would have resorted to, or if you find from the evidence that the remedies and treatment (if any) which she did take relieved her pain and prevented miscarriage and had the same effect proper treatment from a competent physician would have had, then in either of said events the defendant company would be responsible for such injuries and their consequences (if any) so sustained by plaintiff’s wife, even though you may believe that if she had pursued some other course, or taken some other measure, for her said injuries (if any), they would not have resulted as seriously as the proof may show in this case they did result.” The instruction is attacked as erroneous, because, as asserted, on the weight of the evidence, in that in it the court assumed that appellee’s wife was injured as alleged in his petition, and because, as further asserted, it was “contradictory, misleading, and confusing.” The contention made that it was on the weight of the evidence is based on the language “if you find from the evidence that after plaintiff’s wife was so-injured,” ignoring the words following same, to wit, “if she was.” As these words cannot be ignored, and as, if they are not, the instruction clearly is not, in the particular-specified, on the weight of the .testimony, the contention must be overruled. And we think the charge that the instruction was “contradictory, misleading, and confusing” - also is without merit. The meaning of the court, was not as clear as it should have been made, but we think the jury must have understood him to mean that if appellee’s wife-was injured as claimed, and resorted to such means as an ordinarily prudent person would have resorted to to avoid the consequences which followed such injury, he was not be be denied a recovery because the jury might believe if other means had been resorted to-the consequences would not have been so serious. And that, as we understand it, is the law. Railway Co. v. Flood, 35 Tex. Civ. App. 197, 79 S. W. 1107.

Appellant requested the court to charge the jury as follows: “If you believe defendant’s train on which plaintiff’s wife was a passenger stopped at the station of Celeste a time, reasonable under the circumstances, for passengers to leave the train and alight upon the platform, and if you further believe that plaintiff’s wife knew when the train was approaching Celeste, and when the train stopped at Celeste, and that she failed to exercise such care to prepare to leave the train and to leave the train as would have been exercised by a person of ordinary care and prudence under the circumstances, and if you further believe that such failure of plaintiff’s wife to exercise such care as a person of ordinary caution and prudence would have exercised under the circumstances to prepare to leave the train, or to leave the train, if she did not exercise such care, caused or contributed to her injuries, if any, then and in that event plaintiff’s wife was guilty of negligence, and plaintiff is not entitled to recover in this suit, and you should return a verdict for the defendant.” The court refused to so charge the jury, and his refusal is made the basis of appellant’s third assignment of error. The assignment will be overruled. In his main charge the court told the jury to find for appellant if they believed the train “was stopped at the station a reasonably sufficient time for plaintiff’s wife to have gotten off of same with her children aud baggage, by the exercise of ordinary care,” and the testimony did not make an issue as to care on the part of appellee’s wife in preparing to leave the train as it approached the station. Ap-pellee’s wife and her father, who was traveling with her, both testified that as it approached the station she prepared to leave the train, and was ready with her children to leave it when it reached the station! Their testimony is not in any manner controverted by anything in the record.

We do not think the judgment should he reversed because of the portions of the argument of appellee’s attorney to the jury, complained of as improper, because not warranted by the testimony and calculated to prejudice the jury in appellee’s favor. Therefore the fourth, fifth, sixth, seventh, and eighth assignments are overruled.

The action of the court in refusing to permit the witness Howell to answer the question propounded to him by appellant, set out in the ninth assignment, if erroneous, was harmless, because the witness in answering other questions propounded to him testified substantially as he would have testified in answering that question.

The only other objection urged to the judgment is one attacking it as excessive. It is insisted that the sum found by the jury was so large as to indicate that they were influenced by passion and by prejudice against appellant. But if appellee’s wife was as seriously injured, as the result of appellant’s negligence, as the testimony indicated she was, we cannot say that the sum awarded by the jury was excessive. Whether that testimony was true or not was for the jury to determine. They thought it was true. On the record as it has reached us we think their finding should not be set aside by us.

A reversible error not being shown, the judgment is affirmed.


author: RAINEX, C. J.

text:
    ROMAN v. ST. LOUIS SOUTHWESTERN RY. CO.
    (Court of Civil Appeals of Texas. Dallas.
    Nov. 1, 1913.)
    1. Railroads (§ 485) — Fires—Emission op Sparks — Negligence—Instructions.
    Where, in an action for the destruction of plaintiff’s property by fire alleged to have been set out by one of defendant’s engines; the evidence was circumstantial, and no one had seen fire emitted from the engine ignite the building containing the property, the court properly instructed that, for plaintiff to recover, he must show by a preponderance of the.evidence that his property was burned by negligent emission of sparks from defendant’s engine.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1747-1756; Dec. Dig. § 485.]
    2. Railroads (§ 482) — Fires—Destruction op Property — Negligent Emission op Sparks.
    While in an action against a railroad company for the burning of plaintiff’s property by sparks from one of defendant’s engines, the burden is on plaintiff to show that sparks were negligently -emitted, and that they caused the burning of the property, such burden is sustained by proof that sparks escaped from defendant’s engines and caused the property to burn.
    [Ed. Note. — For other eases, see Railroads, Cent. Dig. §§ 1730-1732, 1734-1736; Dec. Dig. § 482.]
    3. Railroads (§ 485) — Fires—Destruction op Property — Instructions—Prima Facie Case.
    In an action against a railroad company for destruction of plaintiff’s property by fire, an instruction that proof that defendant’s engine caused the fire by the emission of sparks constituted a prima- facie case of negligence, and defendant would be liable unless such proof was rebutted and a showing made that the engine was properly equipped with approved spark ar-resters, etc., was proper.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1747-1756; Dee. Dig. § 485.*]
    Appeal from District Court, Navario County; H. B. Daviss, Judge.
    Action by A. F. Roman against the St. Louis Southwestern Railway Company. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    Richard Mays, of Corsicana, for appellant. E. B. Perkins and Daniel Upthegrove, both of Dallas, and R. S. .Neblett, of Corsicana, for appellee.

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

   RAINEX, C. J.

Appellant brought suit to recover of appellee the sum of $750 damages for the burning of certain personal property, caused by the emission of sparks and cinders from one of its engines. Appellee answered by general denial; that it had engines equipped with the most approved spark arresters, which were in good condition, that it had used ordinary care in inspection, and that the engines were properly operated, etc. The case was tried before a jury, which resulted in a verdict and judgment for appellee.

The court instructed the jury that in order for plaintiff to recover he must show by a preponderance of the evidence that his property was burned by negligent emission of sparks from appellee’s engines. Appellant assigns said charge as error. We do not think this complaint is well founded. There was no one who saw sparks of fire emitted from appellee’s engine ignite the building in which the property was situated and cause the loss complained of. The evidence on that point was circumstantial. The burden was on plaintiff to make out his case by showing that sparks negligently emitted from appellee’s engines caused the property to burn. It is true that to show this it was only necessary to prove that sparks escaped from the engines of appellee and caused the property to burn. When plaintiff made this proof he would be entitled to recover, unless appellee rebutted it by showing that its engines were equipped with the most approved spark arresters, and that they were in good repair.

The jury were told in the charge of the court that, if proved by plaintiff that appellee’s engine had caused the fire by the emission of sparks, such proof constituted a prima facie case of negligence and appellee was liable, unless it was rebutted and ap-pellee showed the engines were properly equipped as' above stated, etc. The charge when considered as a whole we do not consider misleading or calculated to cause the jury not to consider the main issue, that of the cause of the fire. The jury evidently considered the proof insufficient on plaintiff’s part to show that appellee’s engine caused the fire, or that the appellee had not used due care in equipping its engines.

There are various assignments in regard to other paragraphs of the court’s charge, to the refusal of special charges, to the admission and rejection of testimony, etc. We have considered each and every assignment; and, while we do not consider the charge perfect or the rulings absolutely errorless, we think no reversible error is pointed out and the judgment is affirmed.

Affirmed.


author: HUFF, C. J.

text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. SCOTT.
    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 1, 1913.
    Rehearing Denied Nov. 15, 1913.)
    1. Master and Servant (§ 288) — Injuries to Servant-Questions for Jury — Assumption of Risk.
    Where the foreman of a section gang negligently ordered an insufficient number of men to move a switch tie, and furnished them with improper tools with which to do the work, it could not be said, as a matter of law that one of the men, who was experienced in handling ordinary ties, but not switch ties, which were heavier, and who was injured while moving the tie, as a result of the foreman’s negligence, assumed the risk.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1068-1088; Dec. Dig. § 288.]
    2. Master and Servant (§ 265) — Injuries to Servant — Burden of Proof — Assumption of Risk.
    In such an action, after it appeared that the injuries resulted from the negligence of the foreman, it was incumbent upon the railroad company to show that the servant assumed the risk.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 877-908, 955; Dee. Dig. § 265.]
    3. Appeal and Error (§ 1002) — Review-Verdict — Conflicting Evidence.
    Where the testimony is conflicting, and the jury might infer that the danger was not obvious to the injured servant, the question of assumption of risk is for the jury, and their verdict will not be disturbed on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dec. Dig. § 1002.]
    4. Master and Servant (§ 163) — Injuries to Servant — Duties of Master — Adequate Number of Men.
    The duty of an employer to furnish a sufficient number of employés to perform the required service applies to the assignment of an adequate number of men to each particular piece of work undertaken.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 328-330; Dec. Dig. § 163.]
    5. Master and Servant (§ 204) — Injuries to Servant — Assumption of Risk — Statute.
    Under federal Employers’ Liability Act June 1L 1906, c. 3073, § 4, 34 Stat. 232 (U. S. Comp. St. Supp. 1911, p. 1317), as amended by act April 22, 1908, c. 149, 35 Stat. 65 (U. S. Comp. St. Supp. 1911, p. 1323), providing that employés engaged in interstate commerce do not assume the risk of injury from the violation of that act, the law of assumed risk applies to actions for injuries to such employés which were not caused by the violation of the act.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 544-546; Dec. Dig. § 204.*]
    Appeal from District Court, Cooke County ; Robert H. Hopkins, Judge.
    Action by Charles Scott against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Garnett & Garnett, of Gainesville, and Alex. S. Coke and A. H. McKnight, both of Dallas, for appellant. Stuart, Bell & Moore, of Gainesville, for appellee.

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

   HUFF, C. J.

Appellee, Scott, in his petition, alleged that: On the 2d day of January, 1912, he was in the employment of appellant railway company as a section hand, and as such engaged with five other men in laying switch ties in the town of Gainesville, all working under the direction of a foreman, and, with three other hands, appellee was directed by his foreman to move one of the switch ties. That the tie was 18 feet long, 8 inches thick, and about 14 inches wide, weighing about 800 or 1,000 pounds, thoroughly soaked in creosote, slick, and greasy. That he and the other men were directed to carry the tie by the foreman, by the use of spike maul handles, round, smooth, and slick, about 3 feet long and one and one-half inch in diameter, being placed under the tie near each end, one of said men getting at the ends of each handle, thus raising and carrying the tie. Appellee and the three men proceeded to lift the tie, but the man opposite appellee raised it with a jerk, or faster than appellee raised or could raise his side, and on account of the heavy weight, and on account of its being slick and greasy and the handles being round and smooth, the weight of the tie was thrown on appellee, which slipped near his hand, thereby seriously and permanently injuring appellee — setting out the injury to his abdomen, hip, back, kidneys, and. other injuries not necessary to describe. The negligence alleged was in not furnishing and using at least six or eight men to so handle the tie, and in furnishing the spike maul handles in carrying the tie, for that the ties were greasy and slick and would easily slide, thus throwing the weight on the man whose side should happen to be the lowest, and that appellant was negligent in not furnishing hooks or clamps to carry said ties; that each and all of said acts of negligence, together with the negligence of the hand opposite appellee in jerking and lifting the tie, were the proximate cause of the injury. The answer was a general denial, and that appellant was engaged in interstate commerce business, and that appellee was employed by appellant to assist therein, and, if injured, it was not from any failure of appellant to comply with the act of Congress as to safety appliances, and that appellant assumed all ordinary risk incident to the work, as well as to the manner and means by which it was being then accomplished, which work was in furtherance of interstate commerce, and also set up contributory negligence on the part of appellee. There was a verdict and judgment for appellee for the sum of $1,000.

Appellant presents three assignments of error, two of which are to the action of the court in refusing to instruct a verdict for appellant, and one in overruling a motion for new trial, and under each of which the proposition is presented that from the uncontra-verted evidence appellee assumed the risk, and hence no recovery could be had against appellant.

It will therefore be seen no complaint Is made of the instructions given by the trial court to the jury, or that the evidence failed to establish negligence on the part of appellant. The jury having found for appel-lee, presumably under a proper charge on assumed risk, the only question for our consideration is: Is there testimony supporting the finding that appellee did not assume the risk? Or, can we, as a matter of law, say from the evidence he did assume the risk? The verdict of the jury establishes that the appellant was negligent in not furnishing enough men to handle the tie which appellee alleges he was assisting to lift at the time he was hurt; that four men were not enough to handle it, and that there should have been at least six or eight men, and that such negligence proximatély caused appel-lee’s injuries. It further establishes that the spike maiil handles were not suitable nor safe for handling switch ties, and that appellant was negligent in so furnishing the in-strumentalities for handling the switch ties, which negligence of appellant proximatély caused appellee’s injury. We think the verdict further established that the switch tie was 18 feet long, 8 inches thick, and 14 inches wide, and weighed from 800 to 1,000 pounds; that the foreman, Robinson, in charge of the sectionmen at the time, directed four men to move the same when he in fact had six men present, and that it was being moved under his immediate direction and supervision. Appellee.at the time did not know its weight, or the danger in moving it at the time he was directed to do so, and did not know that four men could not do so in safety, but that he relied upon the foreman’s direction, and he did not know that it would be dangerous to use the spike handles to do so, and that it was not a safe instrumentality to move this particular tie. The verdict establishes that at least six or eight men should have been used in carrying the tie, and that hooks with handles would be a safer instrumentality for handling ties of the size of the one by which the appel-lee was hurt. It further establishes that the weight of the tie was thrown upon appellee by the tie slipping onto him, occasioned by the man opposite him raising his end of the spike handle too soon. While the evidence shows that appellee had experience in placing cross-ties on the main track of railroads, it shows that he had but little, if any, experience in placing switch ties, which appears from the evidence in the record in this case, were much larger and heavier than the ordinary track tie. We cannot say from the evidence as a question of law that appellee assumed the risk of appellant’s negligence in failing to furnish sufficient men and instru-mentalities to handle the tie in question.

When the evidence, as established by the verdict, shows that appellant was negligent in the particulars mentioned, it was then incumbent upon appellant to show that ap-pellee assumed the risk. The testimony is conflicting on this material question, and it was for the jury to settle the conflict. We are unprepared to say that it was then open and obvious to appellee that appellant had failed to furnish sufficient instrumentalities to carry the tie with safety, and that it was then open and obvious to him that appellant was negligent in only directing four men, with the handles described in plaintiff’s petition, for that purpose. The witnesses, together with all the facts, were before a jury, whose duty it was to pass upon the testimony, and we believe there are facts from which the jury could reasonably infer that the danger was not then open and obvious to appellee.

“It is negligence for the master to subject his servant to a risk not ordinarily incident to the employment, unless the extraordinary hazard be obvious to the servant, or he in some manner be apprised of it. * * * Can, it be said, as a matter of law, that an inexperienced man, relying upon the assumption that the master knows his duty to his employés and would perform it, would have known that the manner of doing the work was not a reasonably safe one, and especially in a case where the vice principal of the master is present directing the mode? We think not. Did he acquire, while in the company’s service, and especially during the day of the accident, such experience, such knowledge, as apprised him of the danger he encountered in continuing the work and of the extent of the hazard? This, in our opinion, was a question for the jury.” Bonnett v. G., H. & S. A. Ry. Co., 89 Tex. 72, 33 S. W. 334.

The duty rested on appellant to furnish a sufficient number of persons to -perform £he services required, and that they are sufficient to insure reasonable safety to each of the employés so engaged. This principle applies when the master fails to assign an adequate number of men to each particular piece of work which may be undertaken. Bonn v. G., H. & S. A. Ry. Co., 82 S. W. 808; Ry. Co. v. Bonn, 44 Tex. Civ. App. 631, 99 S. W. 413. The rules governing cases of this kind are so well settled that further discussion is deemed unnecessary. We think there is evidence at least tending to support the verdict of the jury, which we do not feel warranted in disturbing.

We have disposed of this case, in so far as the law of assumed risk is involved, as we understand it to be before the act of the Legislature of April 24, 1905 (Acts 29th Deg. c. 163), modifying the rule theretofore prevailing in the law of assumed risk, and without discussing the question as to whether appellee was injured while he was employed by a “common carrier, by railroad while engaged in commerce between any of the several states and territories, or between any of the states and territories.” The evidence in this case shows that appellant railway is a state corporation, and that its line of road began in Texas, at Denison, and ends at Wichita Palls, Tex., running through the town of Gainesville, Tex., where the injury occurred. Appellee was employed and was engaged in putting in cross-ties on a switch or Y in the town of Gainesville, at the time of the injury. Appellant carried state and interstate shipments over its line of road and the Y appears to have been used in connection with its general business at Gainesville for both state and interstate shipments, when required for use. The injury in this ease was not caused by the failure of the appellant to comply with the safety appliance law. So under section 4 of the Employers’ Liability Act, as amended April 22, 1908, by Congress, the law of assumed risk would apply if the appellee is found to have been engaged in interstate commerce while engaged in carrying a tie to place in a Y on a state road that frequently transported interstate shipments. Without trying to determine this question, we have disposed of the case as if the law of assumed risk was as it existed before the Legislature of this state defined or qualified it. Anything we could say on this much mooted question of the meaning of “while he is employed” in the service of a carrier, “while engaged” in interstate commerce, would add nothing to the subject.

It perhaps is permissible for us to call attention to the ease of Pedersen v. Delaware, L. & W. R. R. Co., 229 U. S. 146, 33 Sup. Ct. 648,57 L. Ed. 1125. In the above case the injured party was an employé of the railroad, repairing a bridge on the railway line of road which, at the time, was engaged in transporting state and interstate freight. He was a carpenter, and at the time was crossing the track with some bolts for the repair of the bridge, when the railway passenger train of said road struck him. It is there held, by a majority of the judges, that the injured man was engaged in interstate commerce within the meaning of the act of Congress. So it is urged by appellant the employé carrying cross-ties for a Y is engaged in interstate commerce. Up to this time, we must confess it had never occurred to us that he would be so engaged, but the authority cited may authorize the court to go as far as contended by appellant in this case. At any rate, in so far as we are concerned, we leave the question open, and will not discuss it further.

For the reasons above set forth, the judgment of the trial court is affirmed.


author: RASBURT, J.

text:
    MISSOURI, K. & T. RY. CO. OF TEXAS et al. v. GRAY.
    (Court of Civil Appeals of Texas. Dallas.
    Oct. 18, 1913.
    Rehearing Denied Nov. 15, 1913.)
    1. Carriers (§ 131) — Loss ok Injury to Goods — Pleading.
    In an action against carrier for injury to a shipment of fruit and vegetables, allegations of delivery of the car to the receiver of a defendant road in good condition and that in transportation it handled it “in a rough, careless, and negligent manner, whereby the stays, supports, and fastenings which held the boxes, etc., were thrown down, whereby the contents were mashed and bruised,” resulting in great damage, sufficiently showed how and in what respect that road was liable for the damages.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 569-577, 593; Dec. Dig. § 131.]
    2. Receivers (§ 183) — Suits Against — Discharge of Receiver — Pleading.
    Under Acts 31st Leg. (4th Called Sess.) c. 4, providing that a purchaser of the property and franchise of a railroad shall take it subject to all subsisting claims, etc., a petition, averring that after an injury to a shipment of goods and before the filing of a suit the negligent carrier then in receivership had passed into the hands of defendant corporation, sufficiently showed defendant’s liability.
    [Ed. Note. — For other cases, see Receivers, Cent. Dig. §,§ 361-366; Dec. Dig. § 183.]
    3. Carriers (§ 135*) — Loss of Goods — Measure of Damages — Expenses Incurred.
    In an action against a carrier for damages to a car of fruit and vegetables, expenses incurred by the shipper in preserving and caring for them pending final sale thereof were recoverable.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §•§ 557-559, 599-602, 603; Dec. Dig. § 135.]
    4. Damages (§ 69*) — Measure—Interest.
    Where the petition in an action against a carrier for damage to goods expressly seeks interest, it is recoverable from the date of the damage to the time of the trial.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 137-140; Dec. Dig. § 69.*]
    5. Evidence (§ 491*) — Opinion Evidence-Carriage of Goods — Time.
    It is improper for one not qualified as an expert to testify as to what was a reasonable time for a shipment of fruit and vegetables to arrive at its destination.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2269; Dec. Dig. & 491.*]
    Appeal from Collin County Court; H. L. Davis, Judge.

      Action by R. E. Gray against the Missouri, Kansas & Texas Railway Company of Texas and another. Judgment for plaintiff, and defendants appeal.
    Affirmed.
    Garnett & Hughston, of McKinney, for appellants. Doyle & Brown, of McKinney, for appellee.

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

   RASBURT, J.

Appellee sued appellants in the county court of Collin county to recover damages to a car of fruit and vegetables shipped over the lines of appellants from Lindale to McKinney, due to delay and rough handling, and recovered judgment against both appellants. The verdict of the jury is supported by the evidence.

It is urged on appeal that the court erred in overruling the special exception of appellants which asserted that the allegations of appellee’s petition were insufficient in not averring “how and in what respects the International & Great Northern Railroad Company is liable for the damages complained of.” The petition alleges a delivery of the car to the receiver of the International & Great Northern Railway Company in good condition and that in transporting same the said International & Great Northern' Railway Company “handled same in a very rough, careless, and negligent manner, whereby the stays, supports, and fastenings which held the boxes, packages, and crates of fruit were thrown down and piled on top of one another,” whereby the contents thereof “were mashed, bruised, squeezed, and torn up and skinned and rotted,” resulting in great loss and damage thereto. These allegations, it occurs to us, are sufficient and cannot, in fairness, be said to be either vague, indefinite, uncertain, or mere conclusions of fact or law, as urged by appellants, and conclude the court did not err in overruling the exception.

It is further urged under this exception that the petition disclosed no liability against the International & Great Northern Railroad Company, because it appeared that at the time of the delivery of the car for shipment it was delivered to T. J. Freeman, then receiver of the International & Great Northern Railway Company. It also appeared by the petition, in substance, that after the injury to the shipment and before the filing of this suit the International & Great Northern Railway Company, of which Freeman was receiver, had passed into the hands of another incorporation known as the International & Great Northern Railroad Company, which, in law, makes it liable for the debt sued upon. It occurs to us that the pleading is sufficient to show liability on the part of the International & Great Northern Railroad Company. The liability claimed comes within the terms of the amendments passed by the Thirty-First Legislature at its Fourth Called Session. General and Special Laws, 31 Leg. 120; Freeman v. McElroy, 149 S. W. 432.

It is urged that the court erred in its charge in reference to the measure of damages, the exact point being that, in addition to the right to recover the difference in the market value of the shipment at the time it did arrive and its market value at the time it should have arrived, it also permitted a recovery for expenses incurred in preserving and caring for the same pending final sale thereof, and also in allowing a recovery for interest from the date of the damage to the time of the trial. Such expenses are recoverable. Railway Co. v. Levi & Bro., 59 Tex. 679; Star Mill & Elevator Co. v. Sale, 145 S. W. 1037; Arbuckle Bros. v. Everybody’s Gin & Mill Co., 148 S. W. 1136. Interest is likewise recoverable when the petition expressly seeks it, as was done in this case. Watkins v. Junker, 90 Tex. 584, 40 S. W. 11.

Appellants also complain that the court erred in permitting appellee to testify, in effect, as to what was a reasonable time for the shipment to arrive at its destination. It is improper for one, not qualified as an expert, to testify in the manner stated. The record in this ease, however, does not sustain the claim. The substance of the testimony complained of is that appellee, upon inquiry, was told by the agent of the receiver of the International & Great Northern Railway Company at Lindale that a ear leaving Lin-dale on Wednesday would reach McKinney on Thursday. Obviously, this testimony in no sense attempts to fix what would have been in the opinion of a nonexpert a reasonable time for the transportation of the shipment.

The other assignments of error have been carefully examined, but in our opinion they present no error.

The judgment of the court below is affirmed.


author: TALIAFERRO, J.

text:
    HOUSTON CAR WHEEL & MACHINE CO. v. SMITH.
    (Court of Civil Appeals of Texas. San Antonio.
    Oct. 29, 1913.
    Rehearing Denied Nov. 19, 1913.)
    Apdeal and Error (§ 1060) — Trial (§ 10S%) —Prejudicial Error — Examination or Juror.
    Where the attorney for an injured servant, on the voir dire examination of a juror connected with an indemnity insurance policy, after ascertaining that the master had no policy with the juror’s company, asked further questions, endeavoring to insinuate that the master was protected by such a policy, his conduct was improper and highly prejudicial.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4135; Dec. Dig. § 1060;* Trial, Dec. Dig. § 108½.]
    Appeal from District Court, Harris County; Wm. Masterson, Judge.
    Action by Richard Smith against the Houston Oar Wheel & Machine Company. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    Andrews, Ball & Streetman and W. L. Cook, all of Houston, for appellant. John Lovejoy and Presley K. Ewing, both of Houston, for appellee.

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

   TALIAFERRO, J.

This suit was brought in the district court of Harris county, Tex., by appellee, Richard Smith, to recover damages for personal injuries alleged to have been sustained in the service of the Houston Car Wheel & Machine Company on or about the 15th day of May, 1911. The cause was submitted to the jury on April 26, 1912, and the jury returned a verdict in favor of appel-lee for the sum of $8,000. Upon this verdict judgment was rendered against appellant for said amount.

Appellant’s first and fourteenth assignments of error, which complain that the court refused to give to the jury a peremptory instruction in its behalf, and contending that the verdict and judgment are not supported by the evidence, are overruled; but, inasmuch as the case must be reversed upon other grounds, we deem it improper to discuss the evidence in this connection.

The second, third, fourth, fifth, sixth, seventh, eighth, and ninth assignments of error will not be considered. These assignments are in such violation of Court of Civil Appeals rule 31 that they are not entitled to consideration. The courts are ordinarily lenient in the enforcement of the rules; but, where the statement under a proposition amounts practically to a reference to the transcript and statement of facts for the proceedings necessary to sustain the contention, the complaisance of the court must come to an end.

Appellant’s tenth assignment of error is as follows: “The court erred to the prejudice of the defendant in overruling and not granting defendant’s motion for a new trial upon the ground complained of in paragraph 22 of said motion; same being to the effect that plaintiff’s counsel, while questioning the jury panel upon their voir dire, was guilty of improper conduct and of conduct seriously prejudicial to the rights of defendant, in that said counsel, by means of questions propounded to a juror, named Spurck, in the hearing of all the panel, persistently suggested to the jurors and all of them that this suit was being defended by a liability insurance company, and that such liability insurance company and not the defendant would have to pay off and satisfy such judgment as might be rendered in the cause, all of which more fully appears from defendant’s bill of exception No. 1.”

The eleventh, twelfth, and thirteenth assignments complain that the court erred in refusing to permit defendant to withdraw its announcement of ready and postpone or continue the case or to quash the panel because of the improper conduct complained of in its tenth assignment and set out in its bills of exception Nos. 1 and 2. The first hill of exception sufficiently states the facts and the contentions of appellant so that one alone will be copied here:

“Be it remembered that upon the trial of the above-styled and numbered cause, and while plaintiff’s counsel, Mr. Ewing, was examining the jury panel upon their voir dire, he asked one of the jurors, Spurck by name, the following questions, and in response thereto received the answers stated: ‘Q. Mr. Spurck, you are representing an insurance company carrying indemnity against accident. A. Yes, sir. Q. Has your company a policy with the defendant’s company? A. No, sir; not that I know of — at least it didn’t pass through my office. Q. Would the fact that the defendant company might have or carry an accident policy in some other company indemnifying it against loss tend to influence your action, if you were selected to serve as a juryman in this case? A. It would not.’ These questions were asked and the answers made thereto by said juror in the presence and hearing of all the panel, from which the jury which thereafter tried the cause was selected.
“Be it further remembered, that when the first question above stated was asked by plaintiff’s counsel, the appellant’s attorneys objected, and requested the court to prevent further interrogation along the line thereof, and thereafter objected to the court to each succeeding Question and the answer thereto, and requested that a bill of exception be allowed thereto.
“Be it further remembered, that when the first question above set forth was asked, the court suggested to counsel for the plaintiff that he, the court, did not think this a proper inquiry, to which counsel for plaintiff replied, ‘that this is the only means or method of information to enable the plaintiff to intelligently pass on the qualifications of the juror,’ and insisted, out of the hearing of the jury, on their right to do so, and, the court being of the opinion that a discussion between the court and counsel would only tend to further direct the jury’s attention thereto, suggested to counsel for plaintiff, out of the hearing of the jury, that they must assume the responsibility of that line of inquiry, and that defendant was entitled to Its bill of exception. The court further certifies that after the statements next above recited, by the court and counsel for the plaintiff, plaintiff’s counsel asked, and there was answered as stated, the questions above set forth following the first question and answer. To which proceedings and the conduct of counsel for plaintiff above set forth, the defendant then and there objected and excepted, and here now tenders their bill of exception thereto, and prays that the court allow and direct the filing of same, which is accordingly done.”

We will not go so far as counsel for ap-pellee, when lie says in his brief, while commenting upon the case of Beaumont Traction Co. v. Dilworth, 94 S. W. 356, that the conduct of counsel in “a persistent effort to impress the jury with the idea that an insurance company, and not the local defendant in the ease, would he called upon to respond to such damages as the jury might assess” was reprehensible; but we will say that the courts do not look with favor upon such practice, and, where it is fairly apparent that the course of counsel in such a case was for the purpose of fixing in the minds of the jury that the defendant carried such insurance for its protection, and that, in case they found a verdict for plaintiff, an insurance company, and not the local defendant, would be obliged to pay the damages, the cases have uniformly been reversed. This rule is founded upon the most substantial reasons of justice. Theoretically, of course, it should be true that the ultimate result would be the same, and that the verdict of the jury would accomplish real and impartial justice. But, practically, it cannot be doubted that the interjection of such really immaterial, but apparently significant, facts into a case tried before a jury has a tendency to influence the size of their verdict, if not the course of their deliberations. Jurors, unfortunately, cannot be stripped of the frailties of human nature when they enter the jury box, and they carry into their deliberations as jurors prejudices and prepossessions of which they themselves are often unaware. Appellee lays stress upon the fact that the questions asked were upon the voir dire, and that they were therefore clearly within his legal right in testing the qualification of the juror. Broad latitude is allowed in examining jurors upon .the voir dire; but justice and good faith always mark its limit. In this ease appel-lee’s counsel, having been told by a juror that he was an insurance agent representing an indemnity insurance company, asked him if his company had issued a policy to defendant. He answered, “No,” and he was then asked the hypothetical question, “Would the fact that the defendant might have or carry an accident policy in some other company indemnifying him against loss tend to influence your action, if you were selected to serve as juryman in this case?” What could have been the purpose of such inquiry if not to impress upon the mind of the jury that defendant did carry such insurance? And what effect could have been expected, except that it would have some bearing upon their minds in passing upon the facts in the case? Even if it be conceded that the juror in question might, because of his business, have been influenced in his judgment favorably to defendant, if the defendant carried such insurance, he could not have been so influenced if he was entirely ignorant upon the subject There was nothing in the pleading to raise a suspicion in his or any other mind that such a policy was held by defendant, and any effort to so plead would not have been permitted. No evidence could be offered to show that such policy existed, and any effort to introduce such evidence would have been promptly suppressed. Appellee’s counsel knew that he would not be permitted to make such a fact an issue in the case, nor in any manner directly bring it to thé attention of the jury. He will not be permitted to do by indirection what he cannot do by direction.

Appellee attempts to make the case of El Paso Elec. Ry. Co. v. Shaklee, 138 S. W. 188, decided by this court, authority for this ease. In that case the question asked was whether any of the jurors were shareholders in any accident insurance company, and the court neither allowed the question to be answered nor repeated. Chief Justice Ely, in writing the opinion of the court, said: “This case is not parallel to the case of Lone Star Brewing Co. v. Voith, 84 S. W. 1100, in which there were repeated and persistent efforts upon the part of the attorneys of Yoith to bring before the jury the fact that the brewing company was insured against damages arising from accidents. The same can be said of the case of Harry v. Brady, 86 S. W. 615. In that ease repeated inquiry was made of jurors as to whether the fact that an accident policy had been taken out by the defendant would influence their verdict. In this case no such question was asked; but the question was asked one time if any of the jurors were stockholders or shareholders in any accident insurance company.” Appellant’s counsel objected to the line of questions sought to be propounded to the juror here, and the trial court told appellee’s counsel, without the hearing of the jury, that he believed the questions improper; but counsel persisted, and was finally told by the court that, if such questions were asked, he, the appellee’s counsel, must ask them upon his own responsibility, no doubt meaning to “wash his hands” of the error which he was about to commit. It would be better if trial courts would less often pursue that course. The court having so ruled, the questions were then asked the juror in the presence of the balance of the jury. Our courts have, without exception, held that persistent effort to impress this fact upon the jury is reversible error. Appellee’s effort in this case to elicit the facts about the insurance was not only persistent, but he was most apparently determined that the inquiry should take place in the presence of the whole jury. Appellee seems to base a distinction between this case and others upon the words “persistent effort” frequently used in the opinions of the courts. But the phrase “persistent effort” can hardly be limited in its meaning to “repeated effort.” That the plaintiff in damage suits shall not, with intent to influence their judgment, by direction or indirection, convey to the jury a suspicion or surmise that the defendant holds a policy of insurance in a company, not a party to the suit, which will protect him from loss in case a verdict is rendered against him, is the substance of the rule, and the wrongdoer in such a case has not been permitted to take advantage of his own wrong. Lone Star Brewing Co. v. Voith, 84 S. W. 1100; Beaumont Traction Co. v. Dilworth, 94 S. W. 356; Harry Bros. v. Brady, 86 S. W. 616; Fell v. Kimble, 154 S. W. 1070.

We think the eleventh, twelfth, and thirteenth assignments of error are well taken, and for this error the judgment of the lower court is reversed, and the cause remanded.


author: TaLBOT, j. J. W.

text:
    BENTON v. KUYKENDALL et ux.
    (Court of Civil Appeals of Texas. Dallas.
    March 15, 1913.
    Rehearing Denied Nov. 15, 1913.)
    1. Appeal and Error (§ 301) — Motion for New Trial — Contents — Objection to Charges.
    Court of Civil Appeals rule 24 (142 S. W. xii), which requires assignments of error to distinctly specify the grounds of error relied on, and that a ground not distinctly set forth in the motion for new trial shall be considered as waived, unless it be fundamental, is in conflict with Rev. Civ. St. 1911, art. 2061, providing that rulings on instructions shall be regarded as excepted to in all cases, and article 2062 providing that, where the ruling appears otherwise of record, no bill of exceptions is necessary to reserve an exception thereto, and hence assignments of error to the giving or refusing of charges, and to other rulings which otherwise appear of record, are entitled to consideration whether a motion for new trial complaining of such rulings is filed and urged in the trial court or not.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 1743, 1753-1755; Dec. Dig. § 301.]
    2. Courts (§ 92) — Rulings oe Decision— Highest Appellate Court.
    The Supreme Court’s construction of a rule of court, clearly expressed, and called for by the questions certified, is not obiter dictum, but is binding upon the Court of Civil Appeals.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. § 335; Dec. Dig. § 92.]
    3. Evidence (§ 397) — Parol Evidence — Fraud.
    Where the terms of a contract are reduced to writing, parol evidence is inadmissible to add to or vary its terms in the absence of fraud, accident, or mistake.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1756-1765; Dec. Dig. § 397.]
    4. Evidence (§ 434) — Parol Evidence At?, pecting Writings — Fraud.
    Allegations that, to induce him to sell timber, defendant fraudulently represented that notes made by another party and given in payment therefor were good, that the maker was solvent, and that they would be paid, that plaintiff had no means of investigating such representations, but acted thereon and accepted the notes as consideration for the timber, and that the statements were in fact false, were sufficient to admit parol evidence to vary the written contract of sale, or to show the facts inducing its execution.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2005-2020; Dec. Dig. § 434.]
    5. Fraud (§ 18) — Legal Fraud — Materiality.
    Such false statements relied upon by the plaintiff were material, and operated as a legal fraud upon him.
    [Ed. Note. — For other cases, see Fraud, Cent. Dig. § 16; Dec. Dig. §, 18.]
    6. Fraud (§ 31) — Action por Damages — Af-firmance of Contract.
    Where defendant, on purchasing timber from plaintiff, falsely represented that the maker of notes given in consideration therefor was solvent, and that the notes would be paid, and plaintiff, in reliance thereon, made the contract, and delivered timber thereunder, plaintiff might recover a money judgment for the value of the timber delivered and tendered, while at the same time affirming the contract, since the deceit was in the method of payment, and not in the contract itself.
    [Ed. Note. — For other cases, see Fraud, Cent. Dig. § 27; Dec. Dig. §, 31.*]
    7. Fraud (§ 13) — Falsity — Knowledge Thereof.
    Where one states as of his own knowledge material facts whereby another is defrauded, it is no defense to reply that, although the statements were false, the person making them believed them to be true, and where worthless notes of a third person, falsely represented to be good, were indorsed to plaintiff “without recourse” in payment under a contract, the defendant, when sued for damages for the deceit, could not shield himself behind such in-dorsement.
    [Ed. Note. — For other cases, see Fraud, Cent. Dig. §§ 3-5; Dec. Dig. § 13.]
    8. Trial (§ 251) — Instructions—Conformity to Issues.
    Where it could be found that, when the notes were discussed and agreed to be taken by plaintiff as a consideration for the sale of his timber, defendant had falsely represented that the maker of them was solvent, and that they would be paid, when in fact he was not solvent, and the notes were worthless, a charge that the undisputed evidence showed that under the contracts defendant did not agree to guarantee the solvency of the maker or the payment of the notes by him was properly refused as not conforming to the proof.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§, 587-595; Dec. Dig. § 251.]
    9. Fraud (§ 64) — Action for Damages — Question for Jury.
    In an action for fraud in giving worthless notes as the consideration of a contract, under which plaintiff sold and defendant took and removed timber, the questions whether plaintiff accepted the notes relying upon his own judgment as to their value, and whether he had opportunity to investigate their value before making the contract, were for the jury.
    [Ed. Note. — For other cases, see Fraud, Cent. Dig. §§• 65½, 67-71; Dee. Dig. § 64.]
    10. Fraud (§ 22*) — Estoppel to Deny Falsity.
    When fraudulent misrepresentations are shown by which a person was induced to enter into a contract, it is no answer to his claim for damages to assert that he might have known the truth by further inquiry; the defendant being estopped from so asserting want of caution.
    [Ed. Note. — For other cases, see Fraud, Cent. Dig. §§ 19-23; Dec. Dig. § 22.]

      31. Fraud (§ 64) — Action for Damages — Question for Jury.
    Under evidence in an. action for fraud in representing notes given as consideration for a contract for the sale of timber to be good, held, that the questions whether the representations were made by defendant before or at the time the first contract was made, and whether his later statements to plaintiff as to the notes were intended to and did induce plaintiff to make a second contract, were for the jury.
    [Ed. Note. — Eor other eases, see Fraud, Cent. Dig. §| 65½, 67-71; Dee. Dig. § 64.]
    12. Fraud (§ IS*) — Deception Constituting Fraud — Knowledge of Falsity.
    Whether a party making a contract, and misrepresenting a material fact, knew it to be false, or made the assertion without knowing whether it was true or false, is immaterial, for the affirmation of what one does not know or believe to be true is as unjustifiable as the affirmation of what is known to be positively false.
    [Ed. Note. — For other cases, see Fraud, Cent. Dig. §§ 3-5; Dec. Dig. § 13.]
    13. Appeal and Error (§ 1064) — Harmless Error — Contradictory Instructions — Ruling of Court.
    Where a general charge, in an action for fraud, erroneously required that the representations be knowingly and falsely made, and a special charge relieved the plaintiff of the burden of showing that they were knowingly made, and the evidence showed that defendant knowingly and falsely represented that the notes were good, and their maker solvent, and that, if he did not knowingly make such representations, they were in fact false, and the notes worthless, the defendant could not be injured whichever rule was adopted by the jury, and hence such contradiction in the charges could not probably cause the rendition of an improper judgment, so as to be reversible error within rule 62a (149 S. W. x).
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4219, 4221-4224; Dec. Dig. § 1064.]
    14. Trial (§ 252) — Instructions—Conformity to Issues.
    In an action for fraud, where the evidence was wholly insufficient to show that the representations made by defendant were mere expressions of opinion, the defense being that no such representations were made, the refusal of his requested instruction that, if they were such, plaintiff could not recover was proper.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§, 505, 596-612; Dec. Dig. § 252.]
    15. Trial (§ 260) — Refusal of Instruction —Instruction Given.
    The refusal of requested charges was not error where the matter was sufficiently covered by other charges given.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.]
    Appeal from District Court, Navarro County; H. B. Daviss, Judge.
    Action by J. W. Kuykendall and wife against C. A. Benton. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    Richard Mays, of Corsicana, for appellant. Simkins &■ Simkins and W. J. Weaver, all of Corsicana, for appellees.

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

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

   TaLBOT, j. J. W.

Kuykendall instituted this suit on December 13, 1910. On March 25, 1912, his wife, Mrs. Olivia Kuykendall, became a party plaintiff, adopting the allegations of her husband’s first amended original petition, upon which the ease was tried. It was alleged, in substance, that on May 25, 1910, appellee' Kuykendall made a written contract with the appellant, C. A. Benton, by which appellees sold to him 300 cords of wood, and that Benton paid them therefor» two notes for $300 each, payable in lumber,' made by J. S. Brasher, and the further sum of $300 in money; that afterwards, on July 6, 1910, said appellee made another written contract with appellant, Benton, by which appellees sold to him 1,500 cords of wood in the tree, upon land owned by appellees, and for which appellant paid and delivered to them three promissory notes, payable in lumber, executed by the said J. S. Brasher, one for $395.21, and the other two for $300 each, aggregating the sum of $995.21. It was further alleged that the first contract was executed by the parties, appellees having delivered 300 cords of wood to appellant, and received the two notes, together with $300 in money; that under the second contract its execution was being proceeded with, at, and prior to the filing of the suit, and that appellant had cut and hauled from the land 350 cords of wood of the reasonable value of 60 cents per cord; that there is now standing on said land 1,150 cords of uncut wood, which appellant bought, and which was held subject to his order and disposition, and that it was also worth 60 cents a cord; that appellant, at the time of the making said contracts, represented to appellee Kuykendall that the maker of the notes was solvent, that the notes were good, and the lumber would be delivered when called for, upon which appellee relied, and that said representations were not true, and that the appellant knew they were not true, or that same were made by the appellant without any knowledge of the truth, and that the appellant carelessly and recklessly made said statements and representations with a view of inducing ap-pellees to accept said notes; that said notes were of no value, the maker insolvent, and nothing had been collected thereon; and by reason whereof appellees had been damaged in the sum of $600, being the value of 200 cords of wood delivered under the first contract, $210 for the value of wood already cut from the land under the second contract, and that he also have judgment in the further sum of $690 for the uncut wood upon the land, which is now tendered to appellant, Appellee further alleged that he had accepted the notes as payment for the wood he sold appellant on the faith of the representations made to him by appellant as to their worth and solvency, that said representations were false, and that appellees had been thereby injured, and prayed that he recover the value of what wood the appellant had cut and hauled and what wood he had delivered under the contracts. He also alleged that he had tendered the wood which was due appellant under the second contract, and ashed for the value of the wood, but did not recover it. He further alleged that he did not know the maker of the notes, nor anything about his solvency, and had no means of finding out same; that no consideration passed to him under the two contracts except the sum of $300 cash for his timber and five worthless notes. He stated that he had accepted the notes for his timber, and he would not have done so had he not relied with confidence upon the word, statement, and representations of the appellant; that the notes were worthless, and that appellant knew it at the time he made the statements, or that he made the statements in a careless and reckless way without knowledge, which statements had injured appellee; that he had performed his part of the contracts; and that he brought this suit by reason of the fraudulent consideration given him, which had been represented by appellant to be a good one. He alleged that the consideration given him, and upon which he had executed the written contracts, had been represented to him by appellant to be a good consideration, and but for which representations he would not have executed the contracts, and that the notes were worthless. He brought suit to recover the value of the timber appellant had used, and for which he never paid-because the notes were worthless. From the allegations of appellee’s petition, it appears that all of the notes involved in the suit were past due when received by appellee. The original payee was O. E. Bowers. He transferred the notes without recourse to J. F. TatesJ who transferred them to appellant without recourse, and appellant in turn transferred them to appellee without recourse ; such transfers having been indorsed on the notes. Appellant answered by general demurrer, special exceptions, general denial. He also filed a cross-action, claiming a breach of the contracts on appellee’s part, and a denial of his right to enter upon the land and remove the timber bought from appellee, and ■ prayed for damages in the sum of $914.25, etc. On March' 26, 1912, ap-pellees filed their second trial amendment, and for the first time tendered a return of the five notes. The case was tried before the court and a jury, and appellee recovered a judgment for $600 for the first 200 cords of wood delivered by him, and the further sum of $168 for 281 cords of wood cut and hauled by the appellant himself, but recovered nothing for the wood which appellant did not cut under the second contract. The judgment further provided that appellant take nothing by his cross-bill. From the judgment rendered, the appellant has appealed.

At the last term of the court we refused to consider appellant’s assignments of error, because neither of them showed that the error therein complained of was distinctly set forth in a motion for a new trial in the district court, and did not point out the page of the transcript or particular clause of the motion in which the error was complained of, in accordance with amended rule 24 (142 S. W. xii) and rule 25 (142 S. W. xii) promulgated by the Supreme Court for the government of the Courts of Civil Appeals, and, there being no fundamental error apparent of record, we affirmed the case. Appellant filed a motion for a rehearing in this court in due time, and cites the decision of our Supreme Court in Railway Co. v. Beasley (Sup.) 155 S. W. 183, in support of the contention that we erred in declining to consider his assignments of error.

It is clear to us that the Supreme Court in the Beasley Case holds that, notwithstanding rule 24, as amended in 1912, assignments of error which complain of the giving or refusing of charges, and to other rulings of the trial court which otherwise appear of record, are entitled to consideration, whether a motion for a rehearing including and complaining of such rulings is filed and urged in the trial court or not. It is said, in effect, by the Supreme Court that said rule, in so far as it requires the character of rulings referred to to be set up in a motion for a new trial, is in conflict with articles 2061 and 2062 of the statute and the construction placed upon said articles by that court, and must be interpreted and construed so as to harmonize with said articles and former decisions.

The Supreme Court’s construction of amended rules 24 and 25, as shown in the Beasley Case, cannot be regarded, we think, as obiter dictum and not binding on the Courts of Civil Appeals. The holding of the Supreme Court seems to have been called for by the questions certified, and is without equivocation and expressed in emphatic language. However we may believe that the amendments to said rules and the adoption of rule 71a (145 S. W. vii) for the government of the district and county courts were intended to change the rules of practice and procedure established prior thereto, ,and no matter how firmly we may believe that articles 2061 and 2062, referred to in Railway Co. v. Beasley, merely relate to and dispense with the necessity of taking formal bills of exception to the ruling of the court in giving and refusing or qualifying of instructions, and to rulings and actions of the court which otherwise appear of record, and in no wise limit or abridge the authority of the Supreme Court to require the filing of a motion for a new trial, distinctly specifying all errors sought to be made available on appeal, yet it is our duty to follow the construction of the Supreme Court, and it would be folly and a waste of time to litigants to run counter to it. Therefore our former opinion in this case will be withdrawn, and this opinion substituted therefor.

The first assignment of error complains of the court’s. refusal to give the following charge requested by appellant: “Should you believe from the evidence that Benton made the representations concerning the value of said notes and the solvency of the maker, as claimed by plaintiff, still the facts show without dispute that the plaintiff and defendant reduced their contract and agreement to writing, as evidenced by the two contracts and the five notes sold by defendant to plaintiff, and the written contract between the parties, so evidenced by the. written contracts and indorsement on the notes, control and govern the liability of the parties. Therefore, by the terms of the contract, Benton having stipulated that Kuykendall was to have no recourse' on him, in the event the notes were not paid by the maker, the said plaintiff is precluded thereby from having any cause of action against defendant.”

The proposition advanced is that, where the terms of a contract are reduced to writing, it is error to admit parol evidence adding to or varying its terms, in the absence of fraud, accident, or mistake, as the basis of a cause of action. Admitting that ordinarily the proposition contended for correctly states the law upon the subject to which it relates, still we think there was no error in refusing to give the charge quoted.

The proposition incorrectly assumes there was no fraud on the part of appellant alleged or proved as the basis of appellee’s cause of action. The record shows that ap-pellees specifically alleged fraudulent statements and representations on the part of appellant to induce appellee to sell him the wood or timber involved in this suit. Se charges, in effect, among other things, that no consideration passed to him under the two contracts alleged except the sum of $300 cash and the five notes of J. S. Brasher, indorsed to him by appellant without recourse; that at the time of the making of said contracts appellant falsely and fraudulently represented to appellee that J. S. Brasher, the maker of the notes, was solvent, and that the notes were good, and would be paid in timber when called for; that he (appellant) “would not be a drop in the bucket compared to the man (Brasher) who had executed the notes,” meaning thereby that the man who executed the notes was amply solvent, and that there was no necessity for him (appellant) to sign the notes in such a way as to make himself liable therefor; that appellant had represented to appellee that he (appellant) had investigated the said notes before he had traded for them, and that he knew they were good, meaning thereby that the maker was amply solvent and responsible for the notes; that none of the notes were delivered to ap-pellee until the making of the second contract alleged, and that he did not know the maker of said notes, nor whether he was solvent or not, except from the representations of appellant, and had no means of investigating and ascertaining the truth or falsity of appellant’s representations; that he believed said statements and representations as„made by the appellant, and, acting upon them, accepted said notes for his timber; that said statements and representations were not in fact true; and that, had appellee known before or at the time the trade for the sale and purchase of his timber was consummated that they were untrue, he would not have accepted said notes. We have not undertaken to state in full appellee’s allegations in this connection. They were abundantly sufficient, however, to admit parol evidence to vary the written contracts in this case, or to show the facts inducing their execution, and said allegations were sufficiently established by the evidence introduced to justify the verdict and judgment rendered. Had the requested charge under consideration been given, it would have deprived appellee of a valuable right, and amounted practically to a peremptory instruction to the jury to return a verdict in favor of appellant.

The representations of the appellant, as alleged, of the solvency of the maker of the notes in question, and their value as a consideration for appellee’s timber, if relied upon by the appellees, and if false, as found by the jury, were material, and operated as a legal fraud upon appellees, no matter how innocently they may have been made by appellant.

Under the facts we think appellees had the legal right to affirm the contracts made for the sale, of their timber to appellant, charging fraud in the method of payment, and to recover a money judgment for the value of the timber delivered and tendered. The deceit was in the method of payment, and not in the contract itself.

The evidence shows that the notes given in payment for the larger portion of the timber were worthless, and we think appellant cannot shield himself behind an indorsement “without recourse” under the facts of this case. Appellees’ suit is bottomed upon the alleged false representations as to the consideration paid for the timber, and the verdict of the jury, warranted by the evidence, affirms the truth of these allegations and that appellee in ignorance of the facts relied upon said representations to his prejudice. The law, as we understand it, will give protection and relief in such a case. McCall v. Sullivan, 1 White & W. Civ. Cas. Ct. App. § 6; Mitchell v. Zimmerman, 4 Tex. 75, 51 Am. Dec. 717; O’Connell v. Duke, 29 Tex. 300, 94 Am. Dec. 282. Again, in Gibbens v. Bourland, 145 S. W. 274, it is said: “If a person states as of his. own knowledge material facts by which another is induced to act to his hurt, it is no. defense to reply that, although the representations were false, the person making them believed them to he true.”' It is believ■ed that this rule is sustained by the weight of authority, although some cases may be found, perhaps, not entirely in accord with it.

What we have said also disposes of appellant’s second assignment of error, which asserts that the court erred in refusing to give his requested charge to the effect that the undisputed evidence shows that under the two contracts made between appellant and appellee Kuykendall, as evidenced by the written contracts and notes, appellant did not agree to guarantee the solvency of said notes or their payment by the maker, Brasher, but, on the contrary, expressly stipulated that said notes were sold without recourse on him. The mere indorsement of the notes “without recourse,” as we have before, in substance, stated, was not a sufficient answer to appellee’s case as developed by the evidence. The evidence was sufficient to warrant a finding that, at the time the notes were discussed and agreed to be taken by appellee as a consideration for the sale of his timber, appellant had falsely represented that the maker of the notes was solvent, and that the notes were good, and would be paid, that the maker of the notes was not in fact solvent, but insolvent, and the notes worthless. Under the pleadings and proof the special charge( was properly refused.

The third and fourth assignments of error charge that the verdict of the jury is contrary to the evidence (1) in that the evidence shows that appellant refused both verbally and in writing to guarantee the payment of the notes and solvency of the maker; (2) that Kuykendall relied upon his own judgment in accepting said notes; that he had an opportunity to investigate and learn for himself as to whether they were or were not of value before he made the contracts for their purchase, and accepted them indorsed without recourse. We do not agree with this view of the evidence.

The first question presented has been disposed of adversely to appellant’s contention by what we have already said, and whether or not the appellee accepted the notes relying upon his own judgment as to their value, or whether he had an opportunity to investigate and ascertain as to whether they were or were not of value before he made the contracts with appellant for the sale of his timber, were issues of fact for the jury. Whatever doubt the evidence may have created as to these questions, it was resolved in favor of the appellee by the findings of the jury, and we think the evidence justified their findings.

As to the second question involved the rule asserted in Railway Co. v. Kisch, L. R. 2 H. L. 120, and quoted with approval in Labbe v. Corbett, 69 Tex. 503, 6 S. W. 808, seems clearly applicable. This rule is that: “When once it is established that there has been any fraudulent misrepresentations, * * * by which a person has been induced to enter into a contract, it is no answer to his claim to be relieved from it to tell him that he might have known the truth by further inquiry. He has a right to .retort upon his objector, ‘You, at least, who have stated what is untrue * * * for the purpose of drawing me into a contract, cannot accuse me of want of caution, because I relied implicitly upon your fairness and honesty.’ ”

The sixth assignment of error complains of the court’s action in refusing the following charge asked by appellant: “The undisputed testimony shows that at the time of the making of the second contract between plaintiff and defendant, on July 6, 1910, that it is not claimed by the plaintiff that defendant made any statements of any kind concerning the value of said notes or the solvency of the maker, Brasher, and therefore in no event would' the plaintiff have any cause of action against defendant growing out of said contract and transfer of the last three notes.” We believe there was no error in refusing this charge.

It appears that the notes were all of the same kind and series, and that what was true of one was true of all. Appellee testified that he traded in the last contract made with Benton on the basis of what Benton told him before in reference to the first notes, and what he had subsequently repeated to him before the execution of the second contract on July 6, 1910. It is manifest, we think, from the record before us that the representations made by appellant as to the first notes, which were accepted under the first contract, were intended to and did operate at the time the second contract was entered into to influence appellee to make the second contract. At all events it seems clear that the jury were authorized, under the evidence, to consider whether or not the representations made by appellant before or at the time the first contract was made, and his statements afterwards to ap-pellee Kuykendall in regard to the notes, were intended to and did materially influence and induce appellee to make the second contract. That the representations were not made at the very time of or immediately before the consummation of the second contract would not, in view of the evidence, defeat appellee’s right, based thereon, to recover on the second contract. The court’s charges along these lines were as favorable to appellant as he was entitled to under the evidence, and he has no just ground to complain of the refusal of the special charge in question.

It is further assigned that the third paragraph of the general charge and special charge No. 2, requested by plaintiff, and given by the court, are contradictory, for that in the general charge appellant’s liability is correctly made to turn upon whether the representations as to the value of the notes and solvency of the maker were knowingly, falsely, and fraudulently made, whereas, the special charge instructed the jury that appellant would be liable, regardless of whether the representations were so made. The charges are doubtless in conflict, as claimed; but we are of opinion the error is not such as was reasonably calculated to and probably did cause the rendition of an improper judgment in the case, and, unless such was the character of the error, the case should not be reversed on account thereof. Rule 62a (149 S. W. x). There seems to be no material difference in Texas between legal and equitable fraud. In the early case of Mitchell v. Zimmerman, 4 Tex. 75, 51 Am. Dec. 717, it is held that whether a party who, in making a contract, misrepresents a material fact “knew it to be false, or made the assertion without .knowing whether it was true or false, is wholly Immaterial, for, it has been justly said, the affirmation of what one does not know or believe to be true is equally, in morals and law, as unjustifiable as the affirmation of what is known to be positively false.” The court was in error in the general charge in therein making the liability of appellant in this case depend upon whether the representations he made to ap-pellee as to the value of the notes and solvency of J. S. Brasher, the maker, were knowingly and falsely made. The correct rule was given substantially in special charge No. 2, requested by the appellee, wherein the jury were told that, if they believed from the evidence that the notes in controversy were indorsed without recourse, and further believed that at the time the purchase and sale of said notes was discussed between the parties the defendant represented to the plaintiffs that said notes were good and solvent, and further believed that said notes were worthless, etc., to find for plaintiffs. The general charge imposed a burden upon appellees which the law did not do. The special charge undertook to relieve them of that burden, and, no matter which rule was adopted by the jury in arriving at their verdict, the appellant was not injured, for the evidence warranted the conclusion that appellant “knowingly and falsely represented that the notes were good, and the maker of them solvent, and that, if he did not knowingly make them, they were in fact false, and the notes worthless.”

The assignments of error complaining of the trial court’s refusal to give special charges asked by appellant, to the effect that, if the representations made by appellant were mere expressions of his opinion, plaintiff could not recover, will also be overruled. These charges were not, in our opinion, called for by the evidence, and would have been misleading if given. The evidence was wholly insufficient to warrant a finding that the representations made by appellant were the mere expressions of his opinion. He denied absolutely, as we understand his testimony, that he made any such representations as charged by appellees, and nowhere in his testimony does he claim to have merely expressed an opinion as to the value of the notes or solvency of the maker of them.

There was no error in refusing to give appellant’s special charge No. 2, because' he did not ask in his cross-action that the contracts between himself and appellees be specifically enforced. He asked for a money judgment in the sum of $914 for timber standing on the land, which he alleges he was forbidden to-take. The evidence shows that appellees tendered this timber to appellant, and the verdict of the jury is that he is to take nothing by his cross-bill.

There are several other assignments of error. Some of these assignments have been disposed of against appellant by what we have said in discussing other assignments. The charges refused, and of which some of the assignments complain, were sufficiently covered by charges which were given, and the others disclose no reversible error. The evidence supports the verdict, and the charge taken as a whole was as fair to appellant as he had a right to ask.

The motion for a new trial, except in so far as it asks the consideration of appellant’s assignments of error, is overruled, and the judgment is affirmed.


author: ELY, C. J.

text:
    BLAKELY v. COMMERCIAL UNION ASSUR. CO.
    (Court of Civil Appeals of Texas. San Antonio.
    Oct. 22, 1913.
    Rehearing Denied Nov. 19, 1913.)
    1. Appeal and Error (§ 759) — Retroactive Statutes —Statutes Governing Procedure.
    Where the case had been prepared for appeal before the enactment of Laws 1913, c. 136, which contained an emergency clause based on the lateness of the session and the increased expense in filing separate assignments of error, and provided that assignments of error might be made up from the motion for new trial, and plaintiff in error had then assigned the errors complained of, the statute will not be construed as applying to the case so as to relieve plaintiff in error from copying assignments of error into his brief, even though that is not necessary under the statute.
    [Ed. Note — For other cases, see Appeal and Error, Cent. Dig. § 3094; Dec. Dig. § 759.]
    2. Statutes (§ 267*) — Retroactive Statutes.
    It must appear by fair implication from the language of the statute that it was intended to have a retroactive operation.
    [Ed. Note. — For other cases, see Statutes, Cent. Dig. §§ 350-359; Dec. Dig. § 267.]
    3. Statutes (§ 267) — Retrospective Statutes — Procedure Statutes.
    While a statute relating to procedure only is presumed to apply to actions which have accrued or are pending, as well as the future actions, the steps of procedure already taken will be permitted to stand, unless the statute plainly shows a contrary intention.
    [Ed. Note. — For other cases, see Statutes, Cent. Dig. §§ 350-359; Dec. Dig. § 267.]

      Error from District Court, Harris County; Chas. E. Ashe, Judge.
    Suit by the Commercial Union Assurance Company against Bassett Blakely. Erom judgment for the plaintiff, defendant brings error.
    Affirmed.
    Elliott Cage, of Houston, for plaintiff in error. L. B. Moody, of Houston, for defendant in error.

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

   ELY, C. J.

This suit was instituted by defendant in error, and the cause was tried on June 23, 1911. The writ of error bond was filed on April 23, 1912, and on July 19, 1912, the assignments of error were filed, and on July 22, 1912, the transcript was filed in the Court of Civil Appeals in Galveston. The brief for plaintiff in error was filed on September 24 1913.

Plaintiff in error has not copied an assignment of error in his brief that is found in the record, but he has formulated other assignments of error made up of portions of his motion for a new trial. However proper that action might be under the provisions of the law passed on April 4, 1913 (Laws 1913, c. 136), it is entirely improper in a case in which assignments of error have been prepared and filed prior to the enactment of that law. There is nothing in the act of 1913 that would fairly raise the implication that it was the intent of the Legislature to make the law applicable to both past and future cases.

The rule is thus stated by the Supreme Court in Rockwall Co. v. Kaufman Co., 69 Tex. 172, 6 S. W. 431: “But we take it that, in any case, in order to give a retrospective construction, it should appear, at least by fair implication from the language used, that it was the intent to make it applicable to both past and future eases.”

It is true that in Sutherland on Statutory Construction, § 482, it is stated: “Where a new statute deals with procedure only, prima facie it applies to all actions, those which have accrued or are pending, and future actions” — but it is further stated in the same paragraph: “But the steps already taken, the status of the case as to the court in which.it was commenced, the pleadings put in, and all things done under the late law, will stand, unless an intention to the contrary is plainly manifested; and pending cases are only affected by general words as to future proceedings from the point reached when the new law intervened.”

In this case the cause had been prepared for appeal long before the new law was enacted, plaintiff in error had assigned the errors of which he complained, no extra expense could possibly arise by adhering to the assignments of error, and there is nothing in the law that indicates that the Legislature desired to apply the law to such a case. It is true that there is an emergency clause in the statute, but it is based on the near approach of the end of the session and the increase in expenses in filing separate assignments of error. The latter reason could not apply to this ease because the additional expense, if any, had already been incurred. This is said, in view of a decision which, seems to put much stress on the emergency clause of a statute. Phoenix Ins. Co. v. Shearman, 43 S. W. 1063.

In the new law, as well as the old, assignments of error are required to be filed before the transcript is taken from the clerk’s-office in the trial court, and the new law does not attempt to give a litigant the right to appeal on one set of assignments and then shift to another more than a year after the appeal is perfected merely.by ignoring the formal assignments of error.

The brief will not be considered, and, there being no error apparent of record, the judgment is affirmed.